United States District Court, District of Columbia
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Araya Henok, Washington, DC, pro se.
Paul A. Kaplan, Jeffrey L. Tarkenton, Womble Carlyle Sandridge & Rice, PLLC, Washington, DC, Todd D. Ross, Womble Carlyle Sandridge & Rice, PLLC, Tysons Corner, VA, for Defendants.
RICHARD W. ROBERTS, District Judge.
Pro se plaintiff Araya Henok brings this action against Chase Home Finance, LLC (" Chase" ), Shapiro & Burson, LLP (" Shapiro" ), and Fannie Mae challenging the legality of the foreclosure on a property he owned on Myrtle Avenue N.E. in Washington, D.C. (" the property" ). After the defendants moved for judgment on the pleadings arguing that Henok's complaint failed to satisfy the pleading requirements under Federal Rule of Civil Procedure 8 and failed to state a claim for relief under Rule 12, Henok moved for partial summary judgment, for leave to amend the complaint twice, and for sanctions against Chase and Shapiro and their counsel. Because it is Chase that is entitled to summary judgment on one of Henok's breach of contract claims, Henok's motion for partial summary judgment will be denied in part and judgment on that claim instead will be entered for Chase. Because the additional claims in both amended complaints are inadequately pled, the motions for leave to amend the complaint will be denied for futility. Because Henok has not stated a cause of action for the remaining claims in the original complaint, the defendants' motions for judgment on the pleadings will be granted, and the remainder of Henok's motion for partial summary judgment will be denied as moot. Because Henok has not met the requirements of Rule 11 or shown that there has been sanctionable conduct by the defendants, Henok's motions for sanctions will be denied.
Henok purchased the property in 2005 with financing from Chase. Pl.'s Mot. for
Leave to File Amended Pleading, Attachment (" Second Am. Compl." ) ¶ 6, Ex. 10. In March of 2009, Chase returned his monthly payment and " stated that [his] property [was] going into foreclosure[.]" Id. ¶ 8. On January 20, 2010 and in February 2010, Henok asked Chase by phone and in writing how much to pay to bring his account current, and identified in writing his mailing address. Id. ¶¶ 9-12, Exs. 1-3. On February 18, 2010, Henok received from Shapiro a foreclosure notice that was addressed to the correct 908 New Hampshire Avenue, N.W., Washington D.C. street address Henok had provided to Chase, but the addressed notice did not include the suite number Henok had provided. It identified the " minimum balance required to cure default" as $26,577.29 plus fees and costs which become due. Id. ¶ 13, Ex. 4. Henok then mailed Chase and Shapiro additional requests in February and March. Id. ¶¶ 14-16, further replies to his letters. Id. cure the default. See id., Counts 1-7, 10, 12-1 , 13, 19, 25.
Shapiro filed with the Recorder of Deeds a copy of the notice of foreclosure sale. Id., Counts 1, 13, 19, Ex. 4. Fannie Mae bought the property in a foreclosure sale on March 24, 2010. Id. ¶ 17, Exs. 4, 8. Chase had appointed John Burson and Gregory Britto as substitute foreclosure trustees under the deed of trust that secured Henok's mortgage, Id., Ex. 8, and Britto filed with the Recorder of Deeds the trustees' deed of sale in July 2010. Id.
Henok filed a complaint in D.C. Superior Court in February 2012 challenging the foreclosure. Henok's complaint asserts against Chase and Shapiro claims of breach of contract, breach of fiduciary duty, fraud, negligence, negligent misrepresentation, and a constitutional violation of the Fifth Amendment's takings clause. Compl., Counts 1-4, 6-8, 10-13. Henok's complaint also asserts that the trustees' deed was issued late and failed to satisfy the formal requisites of an instrument. Id., Counts 5, 9.
The defendants removed the case to federal court on March 1, 2012. Chase and Fannie Mae moved for judgment on the pleadings under Rule 12(c) arguing that Henok's complaint does not satisfy the pleading requirements of Rule 8 and that Henok's breach of contract, breach of fiduciary duty, fraud, negligent misrepresentation, and Fifth Amendment claims do not state a claim for relief.  Mem. in Supp. of Mot. for J. on the Pleadings by Chase and Fannie Mae at 5-13. Additionally, the motion argued that Henok's other claims concerning the trustees' deed and the expiration of the notice of foreclosure were without merit. Id. at 13-14. Shapiro also moved for judgment on the pleadings under Rule 12(c) adopting and incorporating the memorandum of law accompanying Chase and Fannie Mae's motion. Shapiro's Mot. for J. on the Pleadings at 1.
Henok then moved for partial summary judgment arguing that Chase did not give him and he did not receive notice of default, he did not receive a valid notice of the foreclosure, and the defendants failed to provide a cure amount. Pl.'s Mot. for Partial Summ. J. (" Pl.'s Summ. J. Mot." ), Points 1-7. Next, Henok moved on July 26, 2012 for leave to amend his complaint. Read broadly, Henok's first amended complaint adds common law claims of negligence and negligent misrepresentation,
Pl.'s Mot. for Leave to Amend Compl., Attachment at 21, Counts 9, 12-2, 19, and adds statutory claims of wrongful foreclosure under D.C.Code § 42-815 and failure to respond under 12 U.S.C. § 2605, Id., Counts 1, 2, 8, 10, 25. In addition, the first amended complaint eliminates the Fifth Amendment claim. Shapiro opposes Henok's motion to amend, arguing in part that allowing Henok's amended complaint would be futile because it does not state a claim for relief on any ground. Opp'n to Mot. for Leave to Amend Compl. ¶ 3. On October 24, 2012, Henok again moved to amend his complaint. Henok's second amended complaint is identical to the first except that Henok seeks to replace Fannie Mae with Freddie Mac as a named defendant. Pl.'s Mot. for Leave to File an Amended Pleading at 1, Second Am. Compl. ¶ 5. Chase and Fannie Mae consent to dismissing Fannie Mae as a defendant but oppose adding Freddie Mac arguing in part that the second amended complaint does not state a claim for relief on any ground. Defs.' Resp. to Pl.'s Second Mot. for Leave to File an Am. Compl. at 4-10.
I. PARTIAL SUMMARY JUDGMENT
Summary judgment is warranted if " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). " A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including ... documents, ... declarations, ... or other materials; or ... showing that the materials cited do not establish the absence or presence of a genuine dispute[.]" Fed.R.Civ.P. 56(c)(1). A party may not rely merely upon denials in pleadings to show a genuine dispute, but must come forward with specific evidence that reveals a genuine factual dispute. Rogers v. District of Columbia, 880 F.Supp.2d 163, 165-66 (D.D.C.2012); Ali v. District of Columbia Gov't, 810 F.Supp.2d 78, 82-83 (D.D.C.2011).
Henok moves for partial summary judgment, arguing in part that Chase never gave him the required advance notice of default, Pl.'s Summ. J. Mot. at 6, 8, and that he never received such a notice, Pl.'s Mot. at 9-12. The deed of trust securing Henok's mortgage required Chase before foreclosing to " give notice to Borrower ... [that] shall specify (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property." Pl.'s Summ. J. Mot., Ex. 3 ¶ 22. The deed also provided that " [a]ll notices given by Borrower or Lender in connection with this Security Instrument must be in writing. Any notice to Borrower in connection with this Security instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means." Id., Ex. 3 ¶ 15.
These provisions impose a duty upon Chase to " give notice" of default to Henok. Henok's allegation that Chase never gave him advance notice of default alleges a breach of Chase's contractual duty to him; the allegation that Henok did not receive such a notice does not. Henok is not entitled to summary judgment on an allegation that does not state a claim for relief. However, Chase supplied with its opposition to Henok's motion a declaration under the penalty of perjury from its Assistant Secretary and Operations Unit Manager
that Chase indeed gave Henok advance notice of default that fully complied with the requirements of the deed of trust. The declaration attaches a copy of a letter Chase sent Henok on November 18, 2009 to his address at 908 New Hampshire Avenue, N.W., Washington, D.C. 20037-2351, advising Henok " [y]ou are in default because you have failed to pay the required monthly installments [since] 4/1/2009" ; " [y]ou must pay [$19,708.58] within thirty-two days ... in order to cure this default" ; and " [i]f you fail to cure the default ..., Chase Home Finance LLC will accelerate the maturity of the Loan, ...