United States District Court, D. Columbia
[Copyrighted Material Omitted]
ANTHONY RIVERA, Plaintiff: Jeffery Warren Styles, LEAD
ATTORNEY, WASHINGTON LEGAL GROUP, LLC, Washington, DC.
ROSENBERG & ASSOCIATES, LLC, Defendant: Andrew Justin Narod,
James Douglas Cuthbertson, LEAD ATTORNEYS, LECLAIR RYAN,
BERMAN JACKSON, United States District Judge.
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.
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. 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.
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. ¶
claims that, instead of responding to his request that it
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
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.
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.
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
b. Falsely representing the legal status of the debt as being
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
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
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,
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"
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).
Subject Matter Jurisdiction
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).
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).
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. ...