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Phyllis Pricer v. Deutsche Bank

February 5, 2012


The opinion of the court was delivered by: Judge Beryl A. Howell


Before the Court are motions to dismiss filed by defendants American Home Mortgage Servicing, Inc. ("AHMSI") and Network Funding, LP ("Network Funding"). ECF Nos. 6, 10. Plaintiff Phyllis Pricer filed a Complaint against these two defendants, as well as defendant Bill Lindes,*fn1 alleging fraud and violations of the Home Ownership and Equity Protection Act ("HOEPA") and the Truth in Lending Act ("TILA"). 15 U.S.C. § 1601, et seq. The defendants assert that the plaintiff's claims must be dismissed because her Complaint was filed outside the applicable statutes of limitations. The Court agrees. Accordingly, the defendants' motions to dismiss are granted and the Complaint is dismissed.


Plaintiff Phyllis Pricer is a resident of the District of Columbia. Compl. ¶ 3. She alleges that on May 5, 2006, defendant Bill Lindes, a mortgage broker employed by defendant Network Funding, completed a Uniform Residential Loan Application for her to receive a "Cash-Out/Debt Consolidation" loan for $420,750. Id. ¶¶ 4-5, 7; id., Ex. 1. Shortly thereafter, on May 30, 2006, the plaintiff secured a loan from defendant Deutsche Bank -- which the plaintiff alleges was then doing business as AHMSI -- using as collateral real property located at 35 Michigan Avenue, N.E., Washington, D.C. 20002 ("collateral property"). Id. ¶ 8. After she obtained the loan, the plaintiff alleges that she "made monthly payments to the Defendant creditors." Id. ¶ 10.

Between 2008 and 2009, the plaintiff twice filed for bankruptcy in the U.S. Bankruptcy Court for the District of Columbia. In re Phyllis Pricer, No. 08-487 (Bankr. D.D.C. 2008); In re Phyllis Pricer, No. 09-00452 (Bankr. D.D.C. 2009). In connection with her 2009 bankruptcy proceeding, defendant Deutsche Bank sought relief from the automatic stay imposed after the filing of the plaintiff's bankruptcy petition in order to foreclose on the collateral property because the plaintiff had failed to make any loan payments after June 1, 2008 and was therefore in default. In re Phyllis Pricer, No. 09-00452 (Bankr. D.D.C. 2009), ECF No. 12, Motion from Relief for Automatic Stay. In response, the plaintiff moved to convert her bankruptcy petition from a proceeding under Chapter 7, liquidation, to Chapter 13, reorganization, declaring that she "expected an increase in earnings to support mortgage and plan payments under Chapter 13," and that the collateral property was necessary for "effective reorganization" as it was the principle place of her business as a psychic. Id. at ECF No. 28, Decl. Phyllis A. Pricer dated July 6, 2009. The Bankruptcy Court granted the plaintiff's motion on July 17, 2009, but then dismissed the case with prejudice on September 25, 2009. Id. at ECF Nos. 29, 47.

Five days after the Bankruptcy Court dismissed the plaintiff's petition, on October 1, 2009, defendant AHMSI offered to refinance the plaintiff's loan. Compl.¶ 9. At that time, the plaintiff "owed $53,227.99 in delinquent interest payments, $1,091.07 in delinquent taxes and unpaid insurance, and $330.25 in late charges." Def. AHMSI's Mot. Dismiss, ECF No. 6, at 3; Compl., Ex. 2. Defendant AHMSI's loan refinance offer contained new terms, including a new balance, interest rate, monthly payment, and non-payment penalty clause. See Compl., Ex. 2. The plaintiff, however, did not accept.

On or about November 16, 2009, the plaintiff alleges that the defendants "increased the monthly payments from $2,861.40 to $3,086.45." Compl. ¶ 11. This act, according to the plaintiff, was "without the Plaintiff's authorization" and pursuant to a "fraudulently and illegally obtained" signature. Id. ¶ 12.

On February 8, 2011, the plaintiff filed a Complaint in this Court against defendants Deutsche Bank, which "was formerly [AHMSI]"; mortgage brokerage Network Funding; and mortgage broker Bill Lindes,*fn2 alleging: (1) In Count I, that the terms of her loan violated HOEPA and TILA; (2) in Count II, that failure to disclose information pertaining to her loan violated HOEPA, 25 U.S.C. § 1637(a); and (3) in Count III, that defendants Network Funding and Bill Lindes forged her signature on her loan application and "several documents related to the financing of the [collateral property]." Compl. ¶¶ 13-23. For these illegal acts, the plaintiff seeks $1,000,000 in compensatory damages, $1,000,000 in punitive damages, nullification of her loan, and attorney's fees and costs.

On March 30, 2011, defendant AHMSI moved to dismiss this case, arguing, inter alia, that the plaintiff's claims are barred by the applicable statutes of limitations.*fn3 On April 21, 2011, defendant Network Funding also filed a motion to dismiss this case on these grounds, among others. These two motions are pending before the Court.

For the reasons stated below, the Court agrees that the plaintiff's claims are time-barred. Accordingly, the plaintiff's Complaint is dismissed.


To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge[ ] [his or her] claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Fed. R. Civ. P. 12(b)(6). "[A] complaint [does not] suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted) (citing Twombly, 550 U.S. at 557). Instead, the complaint must plead facts that are more than "merely consistent with" a defendant's liability; "the plaintiff [must plead] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949, 1940; Rudder v. Williams, No. 10-cv-7101, 2012 WL 119589, at *2 (D.C. Cir. Jan. 17, 2012). The Court must "assume all the allegations in the complaint are true (even if doubtful in fact) . . . [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged." Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal quotations and citations omitted).

An affirmative defense that claims are barred by the statute of limitations may be asserted in a Rule 12(b)(6) motion "when the facts that give rise to the defense are clear from the face of the complaint." Smith--Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998). The face of the complaint must conclusively indicate that the complaint is time-barred. Id. at 578-79; Doe v. U.S. Dep't of Justice, 753 F.2d 1092, 1115 (D.C .Cir. 1985); Performance Contracting, ...

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