Submitted Nov. 2, 2012.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Daniel Logan, pro se.
Michael A. Coogen, Jr., Manassas, VA, was on the brief for appellee.
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and FARRELL, Senior Judge.
FISHER, Associate Judge:
Appellant Daniel Logan asks us to reverse the trial court's judgment dismissing eleven statutory and common law claims arising out of a non-judicial foreclosure on his home on July 29, 2009. We affirm the dismissal of most counts, but reverse and remand for further proceedings on Counts One, Two, and Ten.
According to his complaint, appellant took out a loan from Paine Webber Mortgage Finance in the amount of $84,750 to purchase a home located at 5704 Georgia Avenue in Northwest Washington, D.C. The loan was secured by a purchase money deed of trust dated April 23, 1990. Paine Webber recorded the deed on May 1, 1990.
Appellees— LaSalle Bank, National Association [" LaSalle Bank" ] and Ocwen Loan Servicing, LLC [" Ocwen" ]— claim that Logan was " substantially delinquent" in making payments on the loan by 2005, and in default by 2007. In his initial complaint filed on July 9, 2009, as well as in subsequent amendments on July 27, 2009, and thereafter, appellant insists that he was not in default, or at least did not owe as much as appellees claimed was due, that appellees imposed erroneous and fraudulent charges, and that any delinquency was due to LaSalle Bank's failure to correct the charges or to provide the necessary accounting to determine the outstanding debt.
Appellant filed for bankruptcy in 2008, which imposed an automatic stay on any foreclosure. By April 3, 2009, appellee Ocwen's request to lift the stay was granted, and LaSalle Bank scheduled a foreclosure sale for July 29, 2009. Bank of America, which had recently merged with LaSalle Bank, purchased the property at the foreclosure sale. On December 2, 2009, appellee Ocwen initiated a separate possessory action in the Landlord-Tenant Branch of the Superior Court which eventually resulted in Logan's eviction from the property in March 2011.
A series of filings by Logan, initially designed to prevent the foreclosure, culminated in the November 30, 2010, amended complaint currently before us. Appellant asserts a variety of claims based on federal and District of Columbia law, though all essentially allege that appellees failed to provide loan-related information and made erroneous and deceptive representations in assessing fees over the life of the loan. Appellant also alleges that appellees did not have " standing" to foreclose upon his home. The complaint does not allege deception in the procurement, negotiation, or settlement of the loan, nor does it squarely confront appellees' assertion or the court's finding (in denying a temporary restraining order) that Logan had defaulted on the loan.
Appellees filed a motion to dismiss for failure to state a claim, or in the alternative for summary judgment. In April 2011, Superior Court Judge Craig Iscoe granted appellees' motion to dismiss all eleven of Logan's claims, noting Logan's failure to oppose the motion but nevertheless ruling on the merits, dismissing some claims as barred by the statute of limitations, some for lack of subject matter jurisdiction, and others for failure to state a claim upon which relief could be granted. This appeal followed.
The convoluted procedural history of this case is further complicated by appellant's apparent difficulty in securing representation from his attorney of record
throughout the course of the litigation, including on the day of the hearing on the motion to dismiss. As a result, appellant often filed documents and appeared pro se, and many of the filings, including his brief on appeal, are difficult to decipher. Nonetheless, the amended complaint at issue here was filed by appellant's attorney. Regrettably, his undisciplined approach to pleading makes our task unduly difficult.
We review de novo the trial court's dismissal of a complaint under Super. Ct. Civ. R. 12(b)(6). Chamberlain v. Am. Honda Fin. Corp., 931 A.2d 1018, 1022-23 (D.C.2007). To withstand a Rule 12(b)(6) motion, " a complaint must contain sufficient factual matter, accepted as true, to ‘ state a claim to relief that is plausible on its face.’ " Potomac Dev. Corp. v. District of Columbia, 28 A.3d 531, 544 (D.C.2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). Bare allegations of wrongdoing that " are no more than conclusions are not entitled to the assumption of truth," and are insufficient to sustain a complaint. Id. (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). " ‘ [A] formulaic recitation of the elements of a cause of action will not do....’ " (Michael Patrick) Murray v. Motorola, Inc., 982 A.2d 764, 783 n. 32 (D.C.2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). However, " [w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. " [A] complaint should not be dismissed because a court does not believe that a plaintiff will prevail on [his] claim. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Grayson v. AT & T Corp., 15 A.3d 219, 229 (D.C.2011) (en banc) (internal quotation marks omitted).
A plaintiff's burden is much greater in defending against a summary judgment motion. Once the defendant has made a sufficient evidentiary showing to support the motion, the plaintiff's " response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial." Super. Ct. Civ. R. 56(e). " [A] plaintiff's mere unsworn statement of material facts, ... general pleadings or a denial" are insufficient to defend against a summary judgment motion supported by affidavits, depositions, or other evidence; " rather [the plaintiff] must respond similarly by [providing] material facts under oath which raise genuine issues of fact for trial." Maupin v. Haylock, 931 A.2d 1039, 1042 (D.C.2007) (internal quotation marks and citations omitted).
A. Statute of Limitations
The trial court dismissed several of appellant's claims on statute of limitations grounds. We affirm the judgment on these grounds only as to appellant's TILA claim (Count Eight).
Ordinarily, the statute of limitations begins to run when the injury occurs, whether the plaintiff knows the full scope of misconduct or not, so long as he had at least " inquiry notice that [ ]he might have suffered an actionable injury." Medhin v. Hailu, 26 A.3d 307, 310 (D.C.2011) (internal quotation marks omitted). ...