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Bowen v. New Century Mortgage Corp.


March 22, 2010


The opinion of the court was delivered by: John D. Bates United States District Judge


In this civil action filed pro se, plaintiff sues various participants in foreclosure proceedings involving her property located on Perry Street in the northeast quadrant of the District of Columbia. Plaintiff purports to sue under the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601 et. seq., and the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601 et. seq.. She also asserts common law claims of fraud, "wrongful foreclosure," "slander of title," and civil conspiracy. See Compl. Caption.

Pending before the Court are the motion of L. Darren Goldberg, James E. Clarke, Renee Dyson and Draper & Goldberg, PLLC (hereafter "Trustees") to dismiss [Dkt. No. 10], and the motion of New Century Mortgage Corporation, Carrington Mortgage Services, LLC, The Fisher Law Group, PLLC, Jeffrey B. Fisher, Scott R. Robinson, Blumenthal and Cordone, Edward J. Cordone and Carol S. Blumenthal (hereafter "New Century") to dismiss [Dkt. No. 13]. Upon consideration of the complaint, the motions to dismiss, and plaintiff's opposition, the Court will dismiss the federal claims as untimely filed, and will decline to exercise supplemental jurisdiction over the remaining common law claims.*fn1 Hence, the case will be dismissed in its entirety.*fn2


The relevant facts are as follows. Plaintiff executed a note for $340,000 with New Century Mortgage Corporation on August 5, 2006, at an adjustable interest rate. Compl. at 5. New Century allegedly sold the note "on the open market," "overcharged Plaintiff at refinancing" and eventually made "an arm's length transfer to Trustees . . . to facilitate the foreclosure on its behalf." Id. New Century claims that the note was "secured by a refinance Deed of Trust, also dated August 5, 2006, and recorded with the Recorded [sic] of Deeds for the District of Columbia[.]" Def.'s Memorandum in Support of the Motion to Dismiss Complaint [13-1] at 1. After plaintiff defaulted on the loan, New Century purchased the property at a foreclosure sale on August 19, 2008, and subsequently initiated eviction proceedings against plaintiff in the Superior Court of the District of Columbia.*fn3 Id. at 2, 3. The Superior Court issued an order on December 8, 2009, granting the eviction; post-judgment motions are pending. Id. at 3. Meanwhile, plaintiff filed this action on December 1, 2009.


Defendants move to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The District of Columbia Circuit has held that the RESPA's "time limitation is a jurisdictional prerequisite to suit and as such not subject to equitable tolling." Hardin v. City Title & Escrow Co., 797 F.2d 1037, 1038 (D.C. Cir. 1986); see id. at 1039 (recognizing same for the TILA). Subsequent Supreme Court guidance may indicate otherwise. See Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006) (clarifying "that time prescriptions, however emphatic, are not properly typed jurisdictional") (quoting Scarborough v. Principi, 541 U.S. 401, 414 (2004)) (internal quotation marks and other citations omitted). In any event, "[a]ffirmative actions under TILA, are generally required to be brought within one year of the violation . . . and actions for rescission must be brought within three days after consummation of the transaction, or in the event the relevant disclosures were never made, within three years after consummation." In re Dawson, 411 B.R. 1, 19-20 (Bankr. D.D.C. Apr. 9, 2008) (citing 15 U.S.C. §§ 1635(a),(f), 1640(e)). A cause of action accrues "no later than the settlement date." Id. at 20 (citation omitted). Likewise, a RESPA claim must be brought within one or three years of the settlement date, depending on the claimed violation. See 12 U.S.C. § 2614; Hardin, 797 F.2d at 1039 ("Section 2614 is identical in all material respects to 15 U.S.C. § 1640(e), the time limitation applicable to [the TILA.]"); accord Winstead v. EMC Mortgage Corp., 621 F. Supp. 2d 1, 3-4 (D.D.C. 2009) (denying motion for emergency relief to prevent property foreclosure).

Plaintiff's filing of this action nearly four months beyond the most generous expiration date of August 5, 2009 -- three years after settlement -- bars her from proceeding on the federal statutory claims. No basis for considering equitable tolling has even been offered, and there is no reason for this Court to exercise supplemental jurisdiction over state claims under 28 U.S.C. § 1367 at this early stage of the case once the federal claims have been dismissed. Hence, the Court will grant defendants' motions to dismiss and will dismiss the case in its entirety. A separate final order accompanies this Memorandum Opinion.

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