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Avila v. CitiMortgage, Inc.

United States District Court, D. Columbia.

May 29, 2014

RENÉ AVILA and NANCY AVILA, Plaintiffs,
v.
CITIMORTGAGE, INC., et al., Defendants

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RENE AVILA, Plaintiff, Pro se, Moreno Valley, CA.

NANCY AVILA, Plaintiff, Pro se, Moreno Valley, CA.

For CITIMORTGAGE, INC., CITIFINANCIAL MORTGAGE COMPANY, LLC, as a subsidiary of CITIMORTGAGE, INC., MCCARTHY & HOLTHUS, LLP, ASHLEY B. HENNESSEE, Esq., Defendants: Tessa Laspia Frederick, LEAD ATTORNEY, MILES & STOCKBRIDGE, Baltimore, MD.

For QUALITY LOAN SERVICE CORP., Defendant: Rita Ting-Hopper, LEAD ATTORNEY, ATLANTIC LAW GROUP, LLC, Leesburg, VA; Tessa Laspia Frederick, LEAD ATTORNEY, MILES & STOCKBRIDGE, Baltimore, MD.

For PRIORITY POSTING AND PUBLISHING, INC., Defendant: David Ludwig, LEAD ATTORNEY, DUNLAP WEAVER PLLC, Leesburg, VA.

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MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge.

Pro se plaintiffs René Avila and Nancy Avila bring this civil action against several defendants,[1] and appear to be alleging that the attempted foreclosure on their home violates one of the consent decrees issued in United States v. Bank of America, Civ. No. 12-361 (D.D.C., filed Mar. 12, 2012), see Complaint (" Compl." ) ¶ 1(A)-(E), as well as the Fair Debt Collection Practices Act, 15 U.S.C. § § 1692-1692p (2012), the Rosenthal Fair Debt Collection Practices Act (" Rosenthal Act" ), Cal. Civ. Code § § 1788-1788.33 (2001), and 42 U.S.C. § § 1983, 1985, 1986 (2012), see id. ¶ ¶ 57-91. The plaintiffs additionally allege that the defendants committed fraud, deprived them of their due process rights under the United States and California constitutions, and subjected them to emotional distress. See id. ¶ ¶ 57-91. They seek injunctive relief, id. at 34:20-21, as well as " equitable relief, statutory damages, actual damages, reasonable attorney's fees, and costs," id. ¶ 91. Currently before the Court are Priority Posting and Publishing, Inc.'s Motion to Dismiss (" Priority's Mot." ); Defendant CitiMortgage, Inc.'s Motion to Dismiss (" Citi Inc.'s Mot." ); Defendants McCarthy & Holthus, LLP, Ashley B. Hennessee and Quality Loan Service Corp.'s Motion to Dismiss (" McCarthy's Mot." ); Defendant Christopher L. Peterson, Esq.'s Motion to Dismiss for Lack of Personal Jurisdiction (" Peterson's Mot." ); and Defendant CitiFinancial Mortgage Company, LLC's Motion to Dismiss (" Citi LLC's Mot." ), all of which seek dismissal of the plaintiffs' complaint under various provisions of Federal Rule of Civil Procedure 12.[2] Upon careful

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consideration of the parties' submissions,[3] and for the reasons stated below, the Court grants the defendants' motions.

I. BACKGROUND

Although the plaintiffs' complaint is lengthy and often incoherent, the Court distilled the following facts from it.

The plaintiffs are the owners of the property located at 10055 Sycamore Canyon Road, Moreno Valley, California 92557. Compl., Exhibit (" Ex." ) 2 (Deed of Trust) at 3. Defendant CitiFinancial Mortgage Company, LLC was the original named beneficiary of the mortgage agreement for the plaintiffs' home. Id. at 1. CitiFinancial Mortgage Company, LLC " irrevocably grant[ed] and convey[ed]" to a trustee the power to sell the property in the event the plaintiffs defaulted on their mortgage. Id. at 2, 10-11. The mortgage further specified that CitiFinancial Mortgage Company, LLC " at its option, may from time to time appoint a successor trustee to any Trustee appointed" under the mortgage. Id. at 11.

On June 25, 2010, defendant CitiMortgage, Inc. became the beneficiary of the plaintiffs' mortgage as a result of a merger. Compl., Ex. 3 (Assignment of Deed of Trust) at 1. Shortly thereafter, CitiMortgage, Inc. exercised its option to appoint defendant Quality Loan Service Corporation as the new trustee of the plaintiffs' mortgage. Compl., Ex. 10 (Substitution of Trustee) at 1.

In a notice dated April 24, 2012, Quality Loan Service Corporation informed the plaintiffs that they had failed to pay their mortgage " installments of principal and interest which became due on [December 1, 2011], and all subsequent installments of principal and interest through" April 24, 2012. Compl., Ex. 13 (Notice of Default and Election to Sell Under Deed of Trust (" Notice of Default" )) at 2-3. The notice further stated that the plaintiffs' property would be sold at a foreclosure sale unless they paid the outstanding installments due on their mortgage. Id. at 1. A subsequent notice, dated June 26, 2013 informed the plaintiffs that they were " in default under [their] deed of trust" and a foreclosure sale was set for July 24, 2013, at 9:00

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a.m. Compl., Ex. 14 (Notice of Trustee's Sale) at 1. While the complaint suggests that a foreclosure sale took place, see, e.g., Compl. ¶ 85, it does not definitively indicate that the sale took place or when it occurred. However, the plaintiffs indicated in a subsequent filing that their " home has not been sold" and that " no foreclosure sale was effectuated." Pls.' Priority Opp'n at 2.

As noted above, the plaintiffs appear to be alleging in this lawsuit that the attempted foreclosure on their home violates a consent decree issued in United States v. Bank of America, Civ. No. 12-361 (D.D.C., filed Mar. 12, 2012), see Compl. ¶ 1(A)-(E), as well as the Fair Debt Collection Practices Act, the Rosenthal Act, 42 U.S.C. § § 1983, 1985, 1986, and various due process provisions of the United States and California State Constitutions, see id. ¶ ¶ 57-91. The plaintiffs further allege that the defendants committed fraud and have intentionally subjected them to emotional distress. Id. ...


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