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King v. Caliber Home Loans, Inc.

United States District Court, District of Columbia

September 28, 2016



          RANDOLPH D. MOSS United States District Judge

         Plaintiffs Lazina and Ria King (“the Kings”) filed this suit against defendant Caliber Home Loans, Inc. (“Caliber”) on November 25, 2015, alleging a series of claims arising out of Caliber's efforts to foreclose on their home in Oxon Hill, Maryland. See Dkt. 1 (Compl.). Now before the Court is Caliber's motion to dismiss the Kings' complaint on numerous grounds, including for lack of venue under 28 U.S.C. § 1391(b).[1] Dkt. 4-1 at 7-8. Also before the Court is the Kings' motion to strike Caliber's motion to dismiss under Federal Rule of Civil Procedure 12(f). Dkt. 5.

         For the reasons explained below, the Court concludes that venue is improper in this district and that it will, in the interest of justice, transfer the case to the United States District Court for the District of Maryland for further proceedings. Because venue is not proper in this Court, the Court will not reach the remaining issues raised in Caliber's motion to dismiss. Finally, the Court will deny the Kings' motion to strike Caliber's motion to dismiss and will, instead, treat the motion to strike as an opposition.

         I. BACKGROUND

         Plaintiffs Lazina and Ria King purchased a home in Oxon Hill, Maryland, in April of 1996.[2] Dkt. 1 at 9. In January of 2014, they received notification that the “servicing of [their] mortgage loan” would be transferred from Beneficial Financial I Inc. to Caliber Home Loans, Inc. Id. at 12-13.

         At first, the Kings “never really had an issue paying the mortgage.” Id. at 9. Lazina King “fell sick” in 2013, however, and she twice required “emergency surger[ies]” that necessitated repeated trips to the hospital. Id. at 15. In an effort to “get [their] bills . . . back in order, ” the Kings “reached out” to Caliber in April 2014 for a “little help by way of a loan modification, ” and they faxed “a list of documents” to Caliber to “start the loan modification process.” Id. at 3, 15. After calling Caliber to “inquire [about] the status of their modification application, ” the Kings were informed that “their file was closed because [Caliber] could not contact the [Kings] because there was a cease and desist order listed on [their] account.” Id. at 3. The Kings allege that they “never issued a cease and desist order” and that Caliber has never “provided proof that such [an] order exists.” Id.

         The Kings' “file was re-opened” in May 2014 and, after submitting “additional documentation” to Caliber, they received a “Final Loss Mitigation Affidavit” from Caliber on June 11, 2014. Id. at 4, 16. The affidavit notes that the Kings “ha[d] not been solicited due to [a] cease and desist listed on [their] file, ” but that they had “call[ed] in to follow up on modification” and “submitted documents to be considered for review.” Id. at 16. Although the affidavit mentions that the Kings were “still missing” several documents necessary to consider the modification request, it also explains that the Kings were still “able to apply for in-house modification” and other “repayment plan options.” Id. After another telephone call to Caliber on July 15, 2014, the Kings were “able to get the file open again, ” and Caliber followed-up the same day with a letter listing the “specific documents” from the Kings that were still needed. Id. at 6, 17. The Kings allege that they “faxed over the required documents” on July 30, 2014, id. at 6, 9-10, 18-20, but, instead of receiving “news” from Caliber “regarding the modification, ” they “received a letter” on August 22, 2014, announcing an “impending sale” of their home at a “public auction on September 9, 2014, ” id. at 6, 21. The Kings' complaint does not describe the events that occurred after they received the August 22 letter in much detail. It does, however, allege that Caliber instituted a “foreclosure case” and that “Plaintiff [is] currently petition[ing] the Maryland Court of Special Appeals in regards” to that case. Id. at 9.

         The Kings filed suit in this Court on November 25, 2015. Dkt. 1. Their complaint alleges eight causes of action, including: (1) Failure to Provide Honest Services as a Mortgage Servicer; (2) Violation of the Dodd-Frank Act of 2014; (3) Violation of the Real Estate Settlement Procedures Act (Reg. X); (4) Violation of the Truth in Lending Act (Reg. Z); (5) Negligence; 6) Emotional Distress; 7) Violation of the Fair Debt Collection Practices Act; and, 8) Mental Anguish. Dkt. 1 at 7-9. Caliber filed a timely motion to dismiss, Dkt. 4, to which the Kings responded with a “Motion to Strike Defendants' Motion to Dismiss” “pursuant to Rule 12(f), ” Dkt. 5 at 1. The next day, the Court issued an Order noting that it “may construe” the Kings' Motion to Strike as “a response to Caliber's Motion, ” and permitting the Kings to “supplement their Motion to Strike or to file a separate opposition to Caliber's motion.” Dkt. 6 at 1-2. The Kings filed a timely opposition brief, Dkt. 7, and Caliber replied, Dkt. 8.


         Federal law requires that plaintiffs bring suit “in the proper venue” to “ensure[] that a district with some interest in the dispute or nexus to the parties adjudicates the plaintiff's claims.” Hamilton v. JPMorgan Chase Bank, 118 F.Supp.3d 328, 333 (D.D.C. 2015). “Venue is proper in the district where (1) a defendant resides; (2) the events giving rise to the suit occurred; or (3) if venue would not be proper in any district for those reasons, wherever the defendants are subject to personal jurisdiction.” Hamilton, 118 F.Supp.3d at 333 (citing 28 U.S.C. § 1391(b)).

         Pursuant to Federal Rule of Civil Procedure 12(b)(3), “a defendant may, at the lawsuit's outset, test whether the plaintiff ‘has brought the case in a venue that the law deems appropriate.'” Johns v. Newsmax Media, Inc., 887 F.Supp.2d 90, 96 (D.D.C. 2012) (quoting Modaressi v. Vedadi, 441 F.Supp.2d 51, 53 (D.D.C. 2006)). In order to “prevail on a motion to dismiss for improper venue, ” a “defendant must present facts that will defeat the plaintiff's assertion of venue, ” but the “burden . . . remains on the plaintiff to prove that venue is proper when an objection is raised, since it is the plaintiff's obligation to institute the action in a permissible forum.” Roland v. Branch Banking & Trust Corp., 149 F.Supp.3d 61, 67 (D.D.C. 2015) (internal quotation marks omitted). In considering a motion to dismiss for improper venue, the Court must accept the factual allegations of the complaint regarding venue as true and must draw all reasonable inferences in favor of the plaintiff. See James v. Verizon Servs. Corp., 639 F.Supp.2d 9, 11 (D.D.C. 2009). Moreover, “[t]he [C]ourt may resolve the motion on the basis of the complaint alone, or, as necessary, [it may] examine facts outside the complaint that are presented by the parties, while drawing reasonable inferences in favor of the plaintiff.” McCain v. Bank of America, 13 F.Supp.3d 45, 51 (D.D.C. 2014).

         If the Court concludes that venue is improper, it must then decide whether to dismiss the action or to transfer the case to a district where it could initially have been instituted. See Hamilton, 118 F.Supp.3d at 333 (citing 28 U.S.C. § 1406(a)). As the D.C. Circuit has observed, “[r]efusal to transfer spells the end to the action, while transfer would not prejudice the defendants' position on [the] merits, ” and “[t]he Supreme Court has inferred a congressional purpose underlying section 1406(a) favoring the transfer of cases when procedural obstacles ‘impede an expeditious and orderly adjudication . . . on the merits.'” Sinclair v. Kleindienst, 711 F.2d 291, 293-94 (D.C. Cir. 1983) (quoting Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962)). “Included among these ‘procedural obstacles' is ‘lack of personal jurisdiction.'” Katopothis v. Windsor-Mount Joy Mut. Ins. Co., Civ. No. 14-380 at 39 (D.D.C. Sept. 26, 2016) (quoting Sinclair, 711 F.2d at 294). “Dismissal, instead of transfer, is appropriate when the plaintiff's claims suffer from significant substantive deficiencies, ” but ultimately, “[w]hether to dismiss or transfer the case is committed to the sound discretion of the district court.” Hamilton, 118 F.Supp.3d at 333.

         III. ANALYSIS

         Although Caliber raises various challenges to the Kings' complaint, the Court starts with the threshold question of whether venue is proper in this district. In addressing this issue, the Court is mindful of the fact that the Kings are proceeding pro se and that, accordingly, it must construe their “filings liberally.” Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999). At the same time, however, it is the plaintiff's burden to establish venue, see McCain, 13 F.Supp.3d at 51, and the Court cannot relieve the Kings of this burden merely because they are acting without the benefit of counsel. The Court will, accordingly, first consider the basis for venue alleged in the complaint and will then consider ...

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