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Jackson v. ASA Holdings

November 8, 2010


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


This diversity action was filed by Plaintiff Cheryl Jackson ("Jackson") against Defendants ASA Holdings, LLC ("ASA Holdings") and Capital One, LLC. Capital One, N.A. ("Capital One") has entered an appearance indicating that it was improperly named in the Complaint as Capital One, LLC.*fn1 Presently pending before the Court are ASA Holdings' [2] Motion to Dismiss the Complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted and Capital One's [4] Motion to Dismiss Plaintiff's Complaint for failure to state a claim. As explained below, Jackson has failed to file a timely opposition to these motions, and therefore the Court may treat the motions as conceded. Alternatively, the Court finds that Defendants' motions to dismiss are meritorious, and therefore the Court shall dismiss Jackson's Complaint.


Plaintiff Cheryl Jackson is a resident of the District of Columbia who owns real property locatedat 831 Decatur Street, N.W. and 906 12th Street, N.E.Compl. ¶¶ 1, 4. These properties were foreclosed on in February 2010, threatening the eviction of Jackson. Id. ¶ 4. Jackson alleges that she paid her mortgage every month until she was terminated by the District of Columbia Public Schools. Id. ¶ 5. Around the same time as her termination, Jackson was defrauded by a contractor hired to repair the property at 906 12th Street, NE, resulting in a loss of $80,000. Id. ¶ 6.

Jackson avers in her Complaint that Defendant ASA Holdings is a Georgia company that transacts business in the District of Columbia. Compl. ¶ 2. Jackson avers that Defendant Capital Oneis a Virginia company doing business in the District of Columbia. Id. Jackson claims that on or about September 2009, she received notification of a foreclosure sale on her home and rental property*fn2 from Defendants. Id. ¶ 7. Jackson further claims that she "was offered to participate in a modification plan by the Defendants, the servicer, the agent of the holder of the note, to pay a reduced amount which would allow [her] to keep her home and the home that has been in her family for several generations." Id. ¶ 8. Jackson claims that Defendants*fn3 notified her that she might be eligible to avoid foreclosure by participating in the loan modification program. Id. ¶ 9. Jackson claims that she completed the loan modification application but was never told whether she was determined to be eligible. Id. ¶¶ 10-11. After attempting to contact Defendants to ask for information and help, she contacted a Mr. Cory Hankerson about filing for bankruptcy. Id. ¶ 11. Mr. Hankerson informed Jackson that he filed bankruptcy on the day before the scheduled foreclosure date, but Jackson claims that he actually filed bankruptcy after the foreclosure date, resulting in the loss of the properties. Id. ¶ 12. The Court takes judicial notice that a pro se Chapter 13 bankruptcy petition was filed in the United States Bankruptcy Court for the District of Columbia by Cheryl Yvonne Jackson of 831 Decatur Street, NW, on April 2, 2010, signed by a Corey W. Hankerson as preparer. See In re Jackson, Bankr. Pet. No. 10-00328 (Bankr. D.C. filed April 2, 2010).

Jackson claims that "the deceptive and misleading actions of the Defendant led [her] to Mr. Hankerson and the Defendants are now attempting to evict [her] from her family home." Compl. ¶ 13. Jackson alleges that Defendants "never afforded [her] the opportunity to participate in the President's Home Save Program as they claimed or any other opportunity for relief." Id. ¶ 14. Jackson alleges that Defendants acted maliciously toward her, knowing she would lose her home without assistance. Id.

Jackson filed the Complaint in this action on September 7, 2010, asserting violations of the District of Columbia Consumer Protection Procedures Act ("DCCPPA"), D.C. Code § 28-3904, the Fair Debt Collection Practice Act ("FDCPA"), 15 U.S.C. § 1692d, and common law claims of fraud and wrongful foreclosure. In Count I of the Complaint, Jackson claims that Defendants violated the DCCPPA by making misrepresentations of material fact that had a tendency to mislead, specifically: (a) that they would process Jackson's application for a modification; (b) that they would provide Jackson with assistance to determine if she was eligible to stay in her home; and (c) that they would respond to Jackson's request about whether she was eligible for the "Home Save Program." See Compl. ¶¶ 16-22. In Count II, Jackson claims that Defendants violated the DCCPPA by failing to state material facts in a misleading way, specifically by failing to tell Jackson that no one would assist her or discuss available options with her if she called for help. See id. ¶¶ 31-35. In Count III, Jackson claims that Defendants violated the FDCPA by foreclosing on her properties in an oppressive or abusive manner. See id. ¶¶ 36-38. In Counts IV and V, Jackson claims that Defendants' actions constitute fraud and wrongful foreclosure, respectively. See id. ¶¶ 39-42.

On September 21, 2010, ASA Holdings filed its [2] Motion to Dismiss the Complaint. On September 27, 2010, Capital One filed a Consent Motion to Set a Deadline to Respond to Plaintiff's Complaint, which the Court granted. See Min. Order (Sept. 29, 2010). The Court ordered Capital One to file its response to the Complaint by no later than October 15, 2010. On October 15, 2010, Capital One filed its [4] Motion to Dismiss Plaintiff's Complaint. Jackson has not filed any response to either of Defendants' motions.


A. Motion to Dismiss for Lack of Subject Matter Jurisdiction Under Rule 12(b)(1)

A court must dismiss a case pursuant to Rule 12(b)(1) when it lacks subject matter jurisdiction. In determining whether there is jurisdiction, the Court may "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted); see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) ("[T]he district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction."). "At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact." Settles v. U.S. Parole Comm'n,429 F.3d 1098, 1106 (D.C. Cir. 2005). In spite of the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the plaintiff's burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. Envtl. Prot. Agency, 121 F. Supp. 2d 84, 90 (D.D.C. 2000). "Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff['s] factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Wright v. Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (internal citations and quotation marks omitted).

B. Motion to Dismiss Under Rule 12(b)(6)

The Federal Rules of Civil Procedure require that a complaint contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). 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." Twombly, 550 U.S. at 555; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).

In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) ("The complaint must be 'liberally construed in favor of the plaintiff,' who must be granted the benefit of all inferences that can be derived from the facts alleged."). However, as the Supreme Court recently made clear, a plaintiff must provide more than just "a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S.Ct. at 1950. Where the well-pleaded facts set forth in the complaint ...

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