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Gayle George v. Bank of America N.A

October 31, 2011


The opinion of the court was delivered by: Amy Berman Jackson United States District Judge


In this civil action filed pro se, plaintiff sues Bank of America, N.A. ("BOA") under the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601 et. seq..*fn1 In addition, plaintiff sues defendant for fraud and other common law torts. The complaint arises from the refinancing in January 2007 of plaintiff's mortgage loan on her primary residence in the northwest quadrant of the District of Columbia.

Defendant moves to dismiss under Federal Rules of Civil Procedure 8(a) for failure to satisfy the minimal pleading requirements, 12(b)(4) for insufficient process, 12(b)(5) for insufficient service of process, and 12(b)(6) for failure to state a claim upon which relief may be granted. In the alternative, defendant moves for a more definite statement under Rule 12(e). Upon consideration of the parties' submissions, the court finds that this action is time-barred and, thus, will grant defendant's motion to dismiss under Rule 12(b)(6).*fn2


On January 30, 2007, plaintiff executed a Deed of Trust and a Fixed Rate Interest Only Note to Bank of America in which she promised to pay, in return for the loan, the amount of $417,000, at an annual interest rate of 6.625 percent; the promissory note was secured by plaintiff's property at 412 Quackenbos Street, N.W., Washington, D.C. 20011. Mem. of Law in Support of BOA's Mot. to Dismiss Pl.'s Compl. or Alternative Mot. for a More Definite Statement ("Def.'s Mem.") [Dkt. # 8], Exs. A (Deed of Trust), B (Note); see Compl. at 1 ("Petitioner entered into a consumer contract for the refinance of a primary residence . . . . "). On July 1, 2010, defendant initiated foreclosure proceedings against the property by scheduling a foreclosure sale on August 4, 2010. Id., Ex. C (Foreclosure Notice). At the time, plaintiff owed approximately $481,607.77. Id. at 1. The foreclosure sale did not occur on the scheduled date. See BOA's Reply to Pl.'s Opp'n to Def.'s Mot. to Dismiss Pl.'s Compl. ("Def.'s Reply") [Dkt. # 17] at 8.

On August 13, 2010, plaintiff filed the instant action, alleging that defendant, "acting in concert and collusion with others, induced Petitioner to enter into a predatory loan agreement . . . . [[,] committed numerous acts of fraud . . . .[,] failed to make proper notices to Petitioner that would have given [her] warning of the types of tactics used [to defraud her], [and] charged false fees at settlement." Compl. at 1.

Plaintiff lists the following six causes of action: Breach of Fiduciary Duty; id. at 13;*fn4 Negligence/Negligence Per se, id. at 14; Common Law Fraud, id.; Breach of the Implied Covenant of Good Faith and Fair Dealing, id. at 15; Violation of Truth in Lending Act, 15 U.S.C. § 1601 et seq., id. at 16; and Intentional Infliction of Emotional Distress ("IIED"), id. at 17. She seeks, among other injunctive relief, rescission of the loan contract and "disgorgement of all amounts wrongfully acquired by Defendants." Id. at 18. Plaintiff also seeks "actual monetary damages" of $473, 599.15, and punitive damages of $1,420,797.45. Id.



"To survive a [Rule 12(b)((6)] 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 . . . . 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) (internal quotation marks and citations omitted); see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (a plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . .") (citations omitted). "A motion to dismiss may be granted on statute of limitations grounds only if apparent from the face of the complaint." Johnson v. Long Beach Mrtg. Loan Trust 2001-4, 451 F. Supp. 2d 16, 39 (D.D.C. 2006) (citations omitted); see Ramirez v. Dep't of Justice, 594 F. Supp. 2d 58, 63 (D.D.C. 2009) ("[T]he Court may grant a motion to dismiss as untimely only if the complaint on its face is conclusively time-barred . . . or if no reasonable person could disagree on the date on which the cause of action accrued.") (citations and internal quotation marks omitted).

In ruling on a Rule 12(b)(6) motion to dismiss, the court "may consider only the facts alleged in the complaint, [and] any documents either attached to or incorporated in the complaint," EEOC v. St. Francis Xavier Parochial School, 117 F.3d 621, 624 (D.C. Cir. 1997), or those "documents upon which the plaintiff's complaint necessarily relies . . . produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss," Hinton v. Corrections Corp. of Amer., 624 F. Supp. 2d 45, 46 (D.D.C. 2009) (citations and internal quotation marks omitted); accord Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004). In addition, the court may consider "matters of which . . . judicial notice" may be taken, EEOC, 117 F.3d at 624, such as "public records," Kaempe, 367 F.3d at 965 (citations omitted).*fn5


Defendant argues that all of plaintiff's claims are barred by the applicable statute of limitations because she failed to file this action within three years of accrual. See Def.'s Mem. at 18-21. Plaintiff counters that "[t]he statute of limitation[s] would begin to toll [sic] from 10/10/2007," when the deed of trust was allegedly ...

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