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Pena v. A. Anderson Scott Mortgage Group

March 11, 2010


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiff Gloria S. Pena has sued defendants A. Anderson Scott Mortgage Group, Inc., ("Anderson"), American Title and Escrow Company ("ATEC"), CitiMortgage, Inc. ("CMI"), and Chase Home Finance LLC ("Chase") for violation of the Truth In Lending Act ("TILA"), 15 U.S.C. §§ 1601-1667 (2006), breach of the implied covenant of good faith and fair dealing, declaratory judgment/quiet title, and other claims related to defendants' alleged failure to disclose information to Ms. Pena about a mortgage loan created for her by Anderson. Before the Court are motions to dismiss by CMI and Anderson. For the reasons set forth herein, the Court will grant defendants' motions to dismiss plaintiff's TILA claim and remand plaintiff's remaining claims to the Superior Court of the District of Columbia.


Plaintiff makes the following allegations in her complaint. Ms. Pena is domiciled in Maryland and resides in a house in Hyattsville. (Compl. ¶ 2.) Her native language is Spanish, and she has limited proficiency in English. (Id. ¶ 8.) She works as a seamstress, and in 2005 and 2006, her salary was approximately $44,000 per year. (Id. ¶¶ 8-9.) In 2005, Ms. Pena decided to buy a house in Washington, D.C., and sell her property in Maryland, on which she was making mortgage loan payments. (Id. ¶¶ 10-11.) Ms. Pena purchased a house in Washington, D.C., after receiving financing to buy the property for $300,000. (Id. ¶¶ 12-13.) However, prior to moving into it, Ms. Pena realized that the D.C. house required several major renovations and repairs in order for her and her family to live there. (Id. ¶ 14.) Ms. Pena undertook these renovations over the next year, refinancing the loan on her house in Maryland to pay for them, as well as the mortgage payments on her two properties. (Id. ¶¶ 15-16.)

In September 2006, Ms. Pena decided to refinance the loan she had taken out to purchase the D.C. property. (Id. ¶ 17.) Ms. Pena contacted defendant Anderson, whose employee, George Tiqui, assisted her in applying for refinancing. (Id. ¶ 20.) Ms. Pena alleges that when Mr. Tiqui filled out her loan application, he indicated that her monthly income was $10,800, overstating her true earnings by approximately $75,000 annually. (Id.) Anderson, through Mr. Tiqui, then offered Ms. Pena a $390,000 loan with a fixed interest rate of six percent. (Id. ¶ 21.) Prior to settlement, Ms. Pena received copies of a Good Faith Estimate pursuant to the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601-2617, which also stated that the interest rate on the Anderson loan to Ms. Pena would be six percent. (Compl. ¶ 22.) However, when Ms. Pena signed the loan documents on October 20, 2006, the interest rate was 6.5 percent. (Id. ¶ 23.)

After the Anderson loan settled, Ms. Pena continued to make payments on that loan and the loan on her Maryland property, though she attempted unsuccessfully to sell both properties at different times. (Id. ¶¶ 24, 26.) On November 1, 2006, Anderson offered Ms. Pena a second lien loan of $50,000 over the D.C. property with an interest rate of 8.775 percent and a balloon payment at the end of the loan (on December 1, 2021) of $39,789.00. (Id. ¶ 27.) Mr. Tiqui also completed the second loan application for Ms. Pena, though on this form, he stated her monthly income as $8,000. (Id. ¶ 28.) The second lien loan settled on November 13, 2006. (Id. ¶ 29.)

When she filed her lawsuit on August 25, 2009, Ms. Pena owed $386,301 on the first D.C. property loan and $55,680 on the second loan. (Id. ¶ 33.) On May 7, 2009, CMI, the first lien note holder, had offered Ms. Pena a one-year, "stepped-rate modification" on the first lien, valid for one year. (Id. ¶ 34.) The document purporting to modify the loan established a new unpaid principal balance of $417,400, consisting of a principal balance of $386,301, plus a total capitalized amount of $31,099. (Id.) The loan had an interest rate of two percent for the first year, and Ms. Pena was asked to make monthly payments of $1,939. (Id.) Ms. Pena signed the modification documents and sent them to CMI with her first payment of $1,939. (Id.) On June 27, 2009, Ms. Pena mailed a second check to CMI in the same amount. However, CMI returned this check to her with the explanation that the amount was insufficient. (Id., Ex. 9.) Both of Ms. Pena's properties were in foreclosure when she filed suit. (Id. ¶ 32.)


Ms. Pena's complaint includes eights claims, four against CMI and seven against Anderson.*fn1 Ms. Pena contends that CMI and Anderson failed to comply with the disclosure requirements of TILA and breached the implied covenant of good faith and fair dealing in their interactions with her (Counts I and II). (Compl. ¶¶ 37-48.) Accordingly, she claims that she is entitled to declaratory judgment vesting the titles of the Maryland and D.C. properties in her name and finding that any promissory notes, deeds, and liens on the properties are null and void (Count IV). (Id. ¶ 62.) Ms. Pena also alleges breach of contract against CMI for failing to honor the terms of the "stepped-rate modification" to her mortgage loan (Count VII). (Id. ¶¶ 34, 74-75.) Additionally, plaintiff has filed claims of fraudulent misrepresentation (Count III), violation of the D.C. Consumer Protection Procedures Act (Count V), negligence (Count VI), and equitable estoppel (Count VIII) against Anderson. (Id. ¶¶ 49-56, 63-73, 76-80.)

Plaintiff's complaint was originally filed in the Superior Court of the District of Columbia. Defendant CMI, with the consent of the other defendants, filed a notice of removal on September 25, 2009, pursuant to 28 U.S.C. §§ 1441-1453. Removal was based on this Court's federal question subject matter jurisdiction over plaintiff's TILA claim. See 28 U.S.C. § 1331 (granting district courts jurisdiction over claims arising under federal laws). The Court has supplemental jurisdiction over plaintiff's remaining claims, which arise under state law, because these claims are part of the controversy giving rise to plaintiff's TILA claim, i.e., the refinancing and foreclosure of plaintiff's D.C. property. See 28 U.S.C. § 1367(a).

CMI filed a motion to dismiss all of plaintiff's claims against it for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). (Mem. of P. & A. in Supp. of Def. CitiMortgage, Inc.'s Mot. to Dismiss ["CMI Mem."] at 1-2.) Anderson also has filed a motion to dismiss under Rule 12(b)(6), incorporating the motions filed by CMI and ATEC and seeking to dismiss all claims against it. (A. Anderson Scott Mortgage Group, Inc.'s Mot. to Dismiss at 1.)


In deciding a motion to dismiss under Rule 12(b)(6), a court may consider only "the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the Court] may take judicial notice." EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). As the Supreme Court held in Ashcroft v. Iqbal, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must be dismissed under Rule 12(b)(6) if it consists only of "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. "Although 'detailed factual allegations' are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the 'grounds' of 'entitle[ment] to relief,' a plaintiff must furnish 'more than labels and conclusions' or 'a formulaic recitation of the elements of a cause of action.'" Gerlich v. United States Dep't of Justice, 659 F. Supp. 2d 1, 4 (D.D.C. 2009) (quoting Twombly, 550 U.S. at 555-56).

"Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted)). The allegations in plaintiff's complaint are presumed true at this stage and all reasonable factual inferences must be construed in plaintiff's favor. Maljack Prods., Inc. v. Motion Picture Ass'n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir. 1995). "However, the court need not accept inferences drawn by ...

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