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Winstead v. EMC Mortgage Corp.

March 22, 2010


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document Nos.: 19, 20, 21, 22, 24



This matter is before the court on the defendants' motions to dismiss. The plaintiff, the owner of property subject to foreclosure proceedings, asserts that the defendants violated the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601 et seq., the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601 et seq., the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, and the National Housing Act ("NHA"), 12 U.S.C. §§ 1701 et seq. Because the plaintiff's TILA and RESPA claims are time-barred and because the plaintiff has failed to state cognizable claims under the FDCPA or the NHA, the court grants the defendants' motions to dismiss.


The plaintiff filed suit on May 28, 2009, and simultaneously sought a preliminary injunction to stop foreclosure proceedings on his property. See generally Compl.; Pl.'s Mot. for Prelim. Inj. On June 5, 2009, the court denied the plaintiff's motion for a preliminary injunction. See generally Mem. Op. (June 5, 2009). Defendants Rosenberg & Associates, LLC ("Rosenberg") and NRT Mid-Atlantic, LLC d/b/a Coldwell Banker Residential Brokerage ("Coldwell") filed motions to dismiss on June 22, 2009. See generally Rosenberg Mot.; Coldwell Mot. The following day defendants EMC Mortgage Corporation ("EMC") and Fremont Reorganizing Corporation f/k/a Fremont Investment & Loan ("Fremont") filed motions to dismiss, see generally EMC Mot.; Fremont Mot., and defendant Saxon Mortgage Services, Inc. ("Saxon") filed its motion to dismiss on June 24, 2009, see generally Saxon Mot. The plaintiff filed a consolidated opposition to the defendants' motions on June 30, 2009. See generally Pl.'s Opp'n. Coldwell filed a reply in support of its motion on July 13, 2009. See generally Coldwell Reply. As all motions are now fully briefed, the court turns to the applicable legal standard and the parties' arguments.


A. Legal Standard for a Rule 12(b)(6) Motion to Dismiss

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040(D.C. Cir. 2003) (citing FED. R. CIV. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). "Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pre-trial procedures established by the Rules to disclose more precisely the basis of both claim and defense to define more narrowly the disputed facts and issues." Conley, 355 U.S. at 47-48 (internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002), or "plead law or match facts to every element of a legal theory," Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (internal quotation marks and citation omitted).

Yet, "[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." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating the oft-quoted language from Conley, 355 U.S. at 45-56, instructing courts not to dismiss for failure to state a claim unless it appears beyond doubt that "no set of facts in support of his claim [] would entitle him to relief"). A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct." Iqbal, 129 S.Ct. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.

In resolving a Rule 12(b)(6) motion, the court must treat the complaint's factual allegations -- including mixed questions of law and fact -- as true and draw all reasonable inferences therefrom in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C. Cir. 2004); Browning, 292 F.3d at 242. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949.

B. The Court Grants the Defendants' Motions to Dismiss

1. The Plaintiff's TILA and RESPA Claims are Time-Barred

Each defendant argues that the plaintiff's TILA and RESPA claims are barred by the applicable statutes of limitations. See Rosenberg Mot. at 4-5; Coldwell Mot. at 4, 6; Fremont Mot. at 3-4; EMC Mot. at 9; Saxon Mot. at 3. The plaintiff appears to concede that these claims are time-barred when he states that "[p]laintiff conceded in previous motions that both his TILA [c]laims and [s]ome RESPA claims are time barred; case closed." Pl.'s Opp'n at 8. "But," the plaintiff continues, the defendants "are legally bound" to respond to his request for a copy of the original note. Id. (emphasis added). The plaintiff also continues to discuss the alleged "fraud" in the settlement process. See generally id. Because the plaintiff makes substantive arguments despite "conceding" that his claims are time-barred, the court construes his comments as an argument for equitable tolling of the applicable statutes of limitations. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding that pro se pleadings should be held to a "less stringent standard[] than formal pleadings drafted by lawyers"). Neither the TILA nor RESPA statutes of limitations are, however, subject to equitable ...

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