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Susie M. Poindexter v. Wachovia Mortgage Corporation

March 30, 2012


The opinion of the court was delivered by: Robert L. Wilkins United States District Judge



Presently before the court is a Motion to Dismiss filed by defendants Wachovia Mortgage Corporation, Wachovia Mortgage FSB (f/k/a World Savings Bank, FSB and now known as Wells Fargo Bank, N.A.), and Wells Fargo & Company. (Doc. 22.) For the reasons explained below, the Court finds that Defendants' motion is due to be granted in part and denied in part.


"To 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, 556 U.S. 662, ___, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). However, in evaluating a Rule 12(b)(6) motion, the court liberally construes the complaint in favor of the non-moving party and grants all reasonable inferences to the non-movant that can be derived from the facts alleged in the complaint. See Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir. 2003).


As alleged in the Amended Complaint, the facts are as follows: Plaintiff Susie Poindexter is a 73 year old Washington, D.C. homeowner who claims she was fraudulently induced to refinance her mortgage with a loan she could not afford. (Doc. 19, Amend. Comp. ¶¶ 1,11.) Plaintiff asserts that Defendant Equitable Mortgage Company contacted her via telephone and offered her a fixed-rate mortgage with low monthly payments. (Id. ¶ 27.) Sometime thereafter, World Mortgage Company mailed Plaintiff her loan documents. *fn2

Ultimately, Plaintiff obtained a "Pick-A-Payment Adjustable Rate Mortgage Loan," that she could not financially maintain: she was a retired Macy's Department Store sales clerk and the loan had the effect of increasing her loan balance. (Id. ¶¶ 4, 25, 32, 43.) According to Plaintiff, she did not become aware of the adjustable rate until she started receiving mortgage statements. (Id. ¶ 58.)


The loan closing was held at a McDonald's restaurant on or about June 25, 2007 and Plaintiff did not receive any closing documents, including Truth-in-Lending Act disclosures, until several months after she initiated the current lawsuit on July 28, 2009. (Id. ¶¶ 1-3, 35-40.) The loan documents indicate that the loan closing took place at the offices of defendant Chase Title in Maryland and the documents appear to have been notarized by a Maryland notary, who Plaintiff believes is not licensed in the District of Columbia. (Id. ¶¶ 44, 54-55.) Although she was collecting social security, the documents listed Plaintiff's monthly income as $7,000, when she actually received less than $1,200 per month in benefits. (Id. ¶¶ 52-53, 28.) Finally, Plaintiff alleges she was charged unreasonably high fees in excess of $10,00 for the loan. (Id. ¶¶ 46-50.) Wachovia Mortgage, FSB (f/k/a World Savings Bank, FSB and now known as Wells Fargo & Company) is the holder of the note. (See Doc. 23, Ans ¶ 14; Doc. 22, Defs.' Mot. to Dismiss at p. 1.)

It appears that after Plaintiff received the loan documents, Plaintiff sent a rescission letter to World Savings, Wachovia and Wells Fargo, with no success. (Id. ¶¶ 63-64.) In her amended complaint, she names the following defendants: Equitable Mortgage Group, Incorporated;*fn3 Chase Title, Incorporated;*fn4 Wachovia Mortgage Corporation; Wachovia Mortgage FSB (f/k/a World Savings Bank, FSB); and Wells Fargo & Company. (Doc. 19, Amend. Compl.) Plaintiff asserts claims pursuant to the Truth-in-Lending Act ("TILA") 15 U.S.C. § 1601, et seq., as well as a common law claim for unconscionability and numerous claims under the District of Columbia Consumer Protection Procedures Act ("CPPA"). D.C. Code § 28-3901, et seq. *fn5



Wachovia Mortgage Corporation ("WMC") contends that Plaintiff has failed to allege any wrongdoing on it its part and, therefore, the claims asserted against it should be dismissed, with prejudice. (Doc. 26, Reply at 2.) Plaintiff agrees that her claims against WMC should be dismissed; she only listed WMC in a single paragraph of her complaint, regarding alleged corporate relationships between the defendants. (Doc. 26, Pl.'s Resp. at 17; Amend. Compl. ¶ 17.) However, Plaintiff requests dismissal without prejudice and her request will be granted. *fn6


Wells Fargo & Company ("WFC") contends it should be dismissed inasmuch as Plaintiff fails to allege any viable claims against it. Moreover, as a bank holding company, WFC argues that it could not have originated or held her loan. (Doc. 22-1, Def.'s Br. at 11-12; Doc. 27, Wells Fargo & Co. Reply at 1-2.) Plaintiff responds that the corporate structure of these entities has not yet been sorted out and she points out WFC's admission that it is the parent corporation of Wachovia Mortgage FSB (successor to World Savings Bank). In its reply brief, WFC responds that it could only be held liable in this case if this Court were to pierce the corporate veil and doing so would be inappropriate because there is no allegation in the complaint that WFC abused the corporate form by "perpetrat[ing] a fraud through a corporate sham," or exert[ing] undue influence over Wachovia Mortgage FSB. (Doc. 27, WFC Reply at 2-3) (citing Estates of Amore v. Accor, 529 F. Supp.2d 85, 93 (D.D.C. 2008).

At this early stage of the litigation and prior to completion of discovery, the Court is not willing to dismiss WFC given its admitted relationship with Wachovia FSB.


Wachovia Mortgage FSB ("Wachovia FSB") *fn8 argues that Plaintiff's claims are preempted by the Home Owners' Loan Act ("HOLA"), 12 U.S.C. § 1461, et seq. and the regulations promulgated by the Office of Thrift Supervision ("OTS"). Alternatively, Wachovia FSB argues that Plaintiff's unconscionability claim is not actionable to the extent she seeks damages. Finally, Defendant argues Plaintiff has failed to plead her fraud claims with particularity. See Fed. R. Civ. P. 9(b).

1. HOLA Statutory and Regulatory Framework HOLA is "a product of the Great Depression of the 1930's." Fidelity Federal Sav. and Loan Ass'n v. de la Cuesta, 458 U.S. 141, 159 (1982) (citation to legislative history omitted). The statute "was intended to provide emergency relief with respect to home mortgage indebtedness at a time when as many as half of all home loans in the country were in default." Id. (citations and internal quotation marks omitted). To that end, the ...

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