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Owens v. Bank of America

United States District Court, District of Columbia

September 13, 2018

SONYA OWENS, Plaintiff,
BANK OF AMERICA, et al., Defendants.



         Sonya Owens (“plaintiff”), proceeding pro se, brings this action against Bank of America, N.A. (“BANA”), Samuel I. White, P.C. (“SIWPC”) and Harvey West Auctioneers, Inc.[1] It appears that each defendant played a role in the foreclosure of real property plaintiff owned in the District of Columbia. BANA and SIWPC have moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. When the Court considers a Rule 12(b)(6) motion, it must accept as true the well-pleaded factual allegations set forth in a complaint, and it must hold a complaint drafted by the plaintiff herself to a less stringent standard than one prepared by lawyers. See Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). But even judged by that standard, plaintiff's complaint leaves much to be desired. It consists almost entirely of conclusory statements, and it is so lacking in factual allegations that the Court has found it necessary rely upon plaintiff's other submissions, including her oppositions to defendants' motions, for context and to identify the particular legal claims plaintiff seeks to bring. Cf. Richardson v. United States, 193 F.3d 545, 549 (D.C. Cir. 1999). No. matter how liberally the Court construes plaintiff's submissions in their entirety, see Haines v. Kerner, 404 U.S. 519, 520 (1972), she has not stated any viable claim.

         Furthermore, the complaint appears to be an effort to re-litigate and essentially appeal a foreclosure that has been ruled upon by the Superior Court for the District of Columbia and the District of Columbia Court of Appeals, and plaintiff may not seek review of those determinations here. For the reasons discussed in more detail below, then, the Court will grant defendants' motions and dismiss the complaint in its entirety.


         Plaintiff describes herself as a “[m]ember of a protected group based on race, gender, and status[, ]” Compl. ¶ 8, “[w]ith fee simple ownership rights, ” id. ¶ 9, “[i]n federal private property… known as 1325 Ingraham Street, N.W., Washington, DC 20011[.]” Compl. ¶¶ 10-11. According to plaintiff, her ownership rights were “[g]ranted by the U.S. federal government, ” id. ¶ 12, and she “is the only person listed on the deed or title with the U.S. federal government.” Id. ¶ 13.[2]

         It appears that plaintiff obtained a loan from Countrywide Home Loans, Inc. (“Countrywide”) to refinance her then-existing mortgage. See id. ¶ 15; Pl.'s Opp'n to [SIWPC's] Mot. for Dismissal, ECF No. 20 (“Opp'n to SIWPC Mot.”) at 7. Plaintiff alleges that she “timely[] exercised her right to cancel” the loan, Compl. ¶ 15 (emphasis removed), on or about December 27, 2006, before disbursement of the loan proceeds. Id. ¶ 16; see Opp'n to SIWPC Mot., Exs. K1-K3. Plaintiff denies having assigned or transferred ownership in the property to Countrywide, Compl. ¶ 17, and denies the existence of “documents executed between [her] and the defendants” named in this lawsuit. Id. ¶ 21. Rather, plaintiff claims to have retained “[t]he deed, title, or ownership rights” to the property, id. ¶ 19, and to have “satisfied the original mortgage” in January 2007. Id. ¶ 18; see Opp'n to SIWPC Mot., Ex. L. She alleges that the original “Note was released into her possession, ” Compl. ¶ 18, and was filed with the Recorder of Deeds on February 1, 2007. Opp'n to SIWPC Mot. at 16.

         BANA acquired Countrywide in August 2008. See Compl. ¶ 22; Opp'n to SIWPC Mot. at 18. On March 7, 2013, Jonnisha Brooks-Sims, a BANA Assistant Vice President, executed an Affidavit of Lost Note. Opp'n to SIWPC Mot., Exs. N1-N2 (“Brooks-Sims Aff.”). According to Ms. Brooks-Sims, BANA was the servicer with respect to the following loan:

Loan Number: [redacted] Borrower(s): SONYA L. OWENS Date of Note: 12/22/2006 Original Principal Balance: $ 236, 000.00 Property Address: 1325 INGRAHAM ST NW, WASHINGTON, DC 20011-3603

         Brooks-Sims Aff. ¶ 1. “Based on BANA's business records, BANA, or its predecessor (as servicer or by merger) or the custodian acquired possession of the Note on or before December 28, 2006.” Id. ¶ 5 (emphasis removed). However, Ms. Brooks-Sims averred, “the Note ha[d] been lost, ” id. ¶ 4, and after having made “a good faith effort . . . to locate” it, id., “possession of the note [could not] reasonably be obtained because the Note was destroyed, its whereabouts [could not] be determined, or it [was] in the wrongful possession of an unknown person.” Id. ¶ 6. Further, she stated, “the loss of possession of the Note [was] not the result of a rightful transfer or a lawful seizure of the Note.” Id. ¶ 7.

         On August 23, 2013, an Assistant Vice President with Countrywide Home Loans, Inc. executed an Assignment of Deed of Trust for the purpose of assigning and transferring to BANA the “Deed of Trust from Sonya L. Owens to Countrywide Home Loans, Inc. dated December 22, 2006 recorded among the Land Records of District of Columbia, in Instrument # 2007010226 in the original principal amount of $236, 000.00.” Opp'n to SIWPC Mot., Ex. 01. This document was filed with the District of Columbia's Recorder of Deeds. See id., Ex. 02.

         According to plaintiff, the Deed of Trust “(#2007010226) filed in the D.C. Deeds Office is incomplete, unsigned, or cancelled.” Opp'n to SIWPC Mot. at 6. She deems the document “fraudulent, ” id.; see Compl. ¶¶ 31-36, having been “filed several weeks after [she] canceled or voided it[.]” Opp'n to SIWPC Mot. at 6. She also asserts that this Deed of Trust “falsely names [SIWPC] as trustee.” Id.; see id., Ex. L. Yet, based on these falsified or ‘“missing' documents, ” Compl. ¶ 40, BANA initiated foreclosure proceedings in the Superior Court of the District of Columbia, id. ¶ 39, by filing a Complaint for Mortgage Foreclosure on July 30, 2014. See Samuel I. White P.C.'s Reply in Support of its Mot. to Dismiss, ECF No. 21 (“SIWPC Reply”), Ex. A (docket sheet) at 1; Pl.'s Opp'n to Def.'s Mot. to Dismiss, ECF No. 9 (“Opp'n to BANA Mot.”) at 1. At that time, plaintiff alleges, BANA “did not have possession of the Note and did not know of its whereabouts, ” Opp'n to SIWPC Mot. at 10, and therefore could not “prove it had the right to proceed with [the] foreclosure action” in the Superior Court. Id. at 17.

         Nevertheless, pursuant to the Superior Court's December 17, 2015 Order and Decree for Sale of Real Property, see SIWPC Reply, Ex. A at 5, substitute trustees sold the property at auction on February 21, 2017. Emer. Mot. for Inj. Relief, ECF No. 15 at 5; see id., Exs. B, G. The Superior Court issued an Order Granting Motion to Ratify Sale on May 30, 2017. SIWPC Reply, Ex. A at 8. Plaintiff sought relief in the District of Columbia Court of Appeals, which dismissed plaintiff's appeal and motion for a stay of Superior Court's May 30, 2017 Order. See Order, Owens v. Bank of America, N.A., No. 17-CV-638 (D.C. Ct. of App. Oct. 3, 2017). The Superior Court issued an Order Granting Plaintiff's Motion to Ratify Accounting, thus closing the foreclosure case, on May 25, 2018. SIWPC Reply, Ex. A at 10; Def. [BANA's] Response to Pl.'s Emer. Mot. for Inj. Relief, ECF No. 18, Ex. B. By then, BANA already had “recorded a trustee's deed transferring title to the proposed purchaser of [the property].” Opp'n to SIWPC Mot. at 29. Plaintiff filed a Notice of Appeal on June 12, 2018. SIWPC Reply, Ex. A at 10.

         Plaintiff's complaint in this court, filed on October 11, 2017, sets forth five counts related to the foreclosure action. In Count One, entitled “Fraud, ” plaintiff states that “[t]he defendants are accused of robo-signing” documents, Compl. ¶ 31, and thus engaging in “[m]ortgage fraud, ” id. ¶ 32, by “creating . . . [f]alse documents . . . [s]tating Countrywide . . . had[] transferred or assigned a loan debt instrument” to BANA granting it “a secured interest in [Plaintiff's] federal private property.” Id. ¶¶ 33-36. Further, plaintiff asserts that defendants have “[a]ttempted to unlawfully seize and [sell her] property at public auction, ” id. ¶ 41, without “any evidence to support their claims.” Id. ¶ 44.

         In Count Two, entitled “Predatory Lending, ” plaintiff accuses defendants of discrimination and disparate treatment, id. ¶¶ 46-47; “[u]nfair, deceptive, unlawful or fraudulent practices . . . during the loan origination process, ” id. ¶ 49; “imposing unfair and abusive loan terms…, ” id. ¶ 50; failure “to disclose the terms of a debt instrument assigned or transferred to them (whether or not true), ” id. ¶ 51; violation of the Truth-in-Lending Act (“TILA”), id. ¶ 52; and “[m]isrepresentation.” Id. ¶ 56.

         In Count Three, entitled “Predatory Servicing, ” plaintiff alleges “[u]nfair, deceptive, unlawful, or fraudulent practices during the . . . mortgage servicing process, ” id. ¶ 58, and “[w]rongful [c]onduct [r]elated to [f]oreclosures.” Id. ¶ 59. She also alleges violations of “National Mortgage Settlement servicing standards, ” id. ¶ 60, the Fair Debt Collection Practices Act (“FDCPA”), id. ¶ 62, and unspecified consumer protection and financial privacy laws, id. ¶¶ 62-63. Count Three also includes defamation, id. ¶¶ 64-65, and intentional infliction of emotional distress, id. ¶ 66, in its list of alleged wrongs.

         Counts Four and Five, entitled “Violation of Federal Court Order and Settlement Agreement” and “Conspiracy, ” respectively, set forth no additional factual allegations and simply “re-plead and re-allege” the preceding paragraphs in the complaint. The Court presumes that Count Four harkens back to Count Three and its allegation of a violation of “National Mortgage Settlement servicing standards.” Id. ¶ 60. Further, the Court presumes that Count Five pertains to the fraud claims set out in Counts One and Two.

         Plaintiff initially demanded monetary damages, litigation costs, and injunctive relief ordering defendants to stop mortgage servicing activity and to expunge “all negative information . . . reported to Equifax, TransUnion, and Experian[.]” Id. ¶ 70. Subsequently, among other relief, she demanded an injunction “prohibiting the possession, transfer of title, or foreclosure sale” of the property, and a declaration “[a]ll documents executed or filed by the Defendants[] pursuant to the sale or ratification of sale of [her] home on February 21, 2017 are [void].” Opp'n to SIWPC Mot. (proposed order).


         A plaintiff need only provide a “short and plain statement of [her] claim showing that [she] is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), that “give[s] the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation marks omitted). To survive a motion to dismiss under Rule 12(b)(6), “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 (2009) (quoting Twombly, 550 U.S. at 570). The Court “must construe the complaint in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged.” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (internal quotation marks and citation omitted); see Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). While the Court must accept as true the facts alleged in the complaint, it “need not accept inferences drawn by plaintiff[] if such inferences are unsupported by the facts set out in the complaint.” Kowal, 16 F.3d at 1276. The Court need not accept “a legal ...

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