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Rivera v. Rosenberg & Associates, LLC

United States District Court, D. Columbia

November 5, 2015


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[Copyrighted Material Omitted]

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          For ANTHONY RIVERA, Plaintiff: Jeffery Warren Styles, LEAD ATTORNEY, WASHINGTON LEGAL GROUP, LLC, Washington, DC.

         For ROSENBERG & ASSOCIATES, LLC, Defendant: Andrew Justin Narod, James Douglas Cuthbertson, LEAD ATTORNEYS, LECLAIR RYAN, Alexandria, VA.

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         AMY BERMAN JACKSON, United States District Judge.

         Plaintiff Anthony Rivera brings this action against defendant Rosenberg & Associates, LLC, claiming that defendant violated the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. § 1692 et seq., when it attempted to collect on plaintiff's mortgage debt and threatened foreclosure against plaintiff's property without having the legal authority to do so. Am. Compl. [Dkt. # 9]. Plaintiff also brings an FDCPA claim on behalf of a class of property-owning residents of the District of Columbia, challenging similar alleged misconduct by defendant. Id. ¶ ¶ 39, 50-51. Defendant moved to dismiss the complaint on the grounds that plaintiff lacks standing to bring his claims and further, that he has failed to state a claim upon which relief can be granted. Def.'s Mot. to Dismiss Pl.'s 1st Am. Compl. [Dkt. # 10] (" Def.'s Mot." ); Mem. of P. & A. in Supp. of Def.'s Mot. [Dkt. # 10-1] (" Def.'s Mem." ). Because the Court finds that plaintiff lacks standing to challenge an assignment of interest to which he was not a party or a foreclosure that has not taken place, and because the amended complaint fails to state a plausible claim under the FDCPA in any event, the Court will grant defendant's motion and dismiss the case.


         In August 2001, plaintiff obtained a mortgage loan from North American Mortgage Company (" NAMCO" ) to purchase a property located at 817 4th Street, NE, Washington, D.C. Am. Compl. ¶ 6. Plaintiff executed a promissory note and deed of trust in exchange for the loan from NAMCO.[1] Id. Soon after, NAMCO assigned its interest in the deed of trust to State Street Bank and Trust Company. Id. ¶ 8. After plaintiff received the loan from NAMCO, plaintiff states that Washington Mutual (" WaMu" ) became the servicer of the loan and that he made mortgage payments to WaMu from 2002 to 2009. Id. ¶ ¶ 7, 9.

         Plaintiff alleges that at some unspecified time, JPMorgan Chase Bank, N.A. (" JPMC" ) claimed to have acquired WaMu's interest in plaintiff's mortgage loan. Id. ¶ 10. He states that at some point in 2009, he " was advised by JPMC, or its agent Shapiro & Burson, to make the [mortgage] payment to JPMC" instead of WaMu. Id. ¶ 11. Plaintiff notified JPMC that he would not make mortgage payments to JPMC unless it established that it was the proper " holder" of the promissory note, which he contends JPMC failed to do. Id. ¶ ¶ 12-18. He thus alleges that JPMC " was not legally entitled to enforce the promissory note because it was not the 'holder,'" and that he " had no legal obligation" to pay JPMC. Id. ¶ ¶ 16-17.

         Plaintiff claims that, instead of responding to his request that it produce the

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promissory note ore other documentation showing that it was the " holder" of the note, JPMC " initiated an illegal foreclosure procedure" to take control of the property. Id. ¶ 19. Plaintiff filed a temporary restraining order and a complaint for wrongful foreclosure against JPMC. Id. ¶ 20. He states that the foreclosure was terminated and the complaint was dismissed in April 2012 " on the basis that no foreclosure occurred and therefore no . . . cause of action existed for a wrongful foreclosure action." Id. ¶ ¶ 21-22; see also Ex. F to Def.'s Mot. [Dkt. # 10-7] (order granting JPMC's motion for summary judgment and dismissing plaintiff's wrongful foreclosure claims).[2]

         Plaintiff states that from May 2012 to April 2014, he sent numerous letters to JPMC requesting a certified copy of the promissory note. Am. Compl. ¶ 25. He alleges that on April 17, 2014, JPMC responded " with a copy of the promissory note payable to NAMCO with no endorsements." Id. ¶ 27.

         On October 9, 2014, defendant sent plaintiff a letter that identified JPMC as the servicer of plaintiff's mortgage and stated that his loan had been referred to defendant for foreclosure based upon a default in plaintiff's mortgage payments totaling $368,467.16. Id. ¶ ¶ 28-29. Plaintiff alleges that as of that date, JPMC had not yet appointed defendant as the substitute trustee, and that JPMC only appointed defendant as the substitute trustee on October 17, 2014. Id. ¶ ¶ 30-31. Thus, plaintiff contends that defendant had no rights to exercise against the property on October 9, 2014, when defendant sent plaintiff the letter. Id. ¶ ¶ 31-32. He further contends that JPMC's appointment of defendant as the substitute trustee on October 17, 2014 was invalid because " JPMC was not the assignee of the Deed of Trust nor the payee of the promissory note" and therefore " JPMC had no legal authority to appoint [defendant] the trustee" to the deed of trust. Id. ¶ ¶ 34-37. Thus, plaintiff contends that defendant " is not the trustee to the subject deed of trust and is without any legal right to conduct a foreclosure" against the property. Id. ¶ 38.

         Plaintiff initiated this action on April 7, 2015, before the Superior Court of the District of Columbia, and defendant removed the action to this Court on April 27, 2015. Notice of Removal [Dkt. # 1]. Plaintiff filed an amended complaint on June 17, 2015, alleging in Count I that " Defendant violated 15 U.S.C. § 1692" by:

a. Misrepresenting that it was duly appointed substitute trustee by an authorized party to the deed of trust or promissory note;
b. Falsely representing the legal status of the debt as being in foreclosure;
c. Falsely representing the amount of the debt owed to JPMC;
d. Failing to validate the debt pursuant to Plaintiff's specific dispute and request for verification; and
e. Threatening to dispose of the Property at a foreclosure sale.

Am. Compl. ¶ 46. In Count II, plaintiff also brings a claim on behalf of a class of property-owning residents of the District of Columbia, contending that " Defendant violated 15 U.S.C. § 1692 by misrepresenting it had rights against [his] and Class

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members' properties in its debt collection attempts," and by " misrepresenting that it could begin foreclosure on [his] and Class members' properties," " before it was appointed the substitute trustee." Id. ¶ ¶ 39, 50-51.

         On July 1, 2015, defendant moved to dismiss the amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Def.'s Mem. at 1. Plaintiff opposed the motion on July 20, 2015, Pl.'s Opp. to Def.'s Mot. [Dkt. # 12] (" Pl.'s Opp." ), and defendant filed a reply on July 27, 2015. Reply Mem. in Supp. of Def.'s Mot. [Dkt. # 13] (" Def.'s Reply" ). With leave of Court, see Min. Order (Aug. 12, 2015), plaintiff filed a surreply on August 19, 2015. Pl.'s Surreply to Def.'s Reply [Dkt. # 15] (" Pl.'s Surreply" ).


         In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must " treat the complaint's factual allegations as true . . . and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113, 342 U.S.App.D.C. 268 (D.C. Cir. 2000) (internal citations omitted), quoting Schuler v. United States, 617 F.2d 605, 608, 199 U.S.App.D.C. 23 (D.C. Cir. 1979); see also Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139, 395 U.S.App.D.C. 316 (D.C. Cir. 2011). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242, 352 U.S.App.D.C. 4 (D.C. Cir. 2002).

         I. Subject Matter Jurisdiction

         Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that " a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448, 361 U.S.App.D.C. 6 (D.C. Cir. 2004) (" As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction." ). " [B]ecause subject-matter jurisdiction is 'an Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971, 358 U.S.App.D.C. 56 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).

         When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court " is not limited to the allegations of the complaint." Hohri v. United States, 782 F.2d 227, 241, 251 U.S.App.D.C. 145 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, " a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197, 297 U.S.App.D.C. 406 (D.C. Cir. 1992); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253, 365 U.S.App.D.C. 270 (D.C. Cir. 2005).

         II. Failure to State a Claim

         " To survive a [Rule 12(b)(6)] 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, 678, 129 S.Ct. ...

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