United States District Court, District of Columbia
GERALDINE A. TRICE, Plaintiff,
FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant.
MEMORANDUM OPINION 
S. CHUTKAN UNITED STATES DISTRICT JUDGE
at least five unsuccessful challenges to the foreclosure sale
of her property in Nevada, pro se Plaintiff
Geraldine Trice brings this action against the Federal
Deposit Insurance Corporation (“FDIC”), which
denied her administrative claim involving the servicing of
her mortgage loan account. The FDIC seeks dismissal of this
lawsuit pursuant to Rule 12(b)(1) for lack of subject matter
jurisdiction and 12(b)(6) for failure to state a claim upon
which relief may be granted. ECF No. 7. For the reasons set
forth below, the court will grant the FDIC's motion to
1999, Trice executed a mortgage note and trust deed in favor
of Washington Mutual Bank (“WaMu”). Compl. ¶
48; Compl. Ex. 1-1 at ECF p. 64. Rather than requiring Trice
to make payments that included escrow amounts for taxes and
insurance, WaMu allowed her to pay her insurance and taxes
directly. ECF No. 11 Pls. Response at p. 2; Compl. Ex. 1-1 at
ECF p. 83. WaMu closed in September 2008 and the FDIC was
appointed as its receiver. Compl. ¶ 51; see Alkasabi
v. Wash. Mut. Bank, F.A., 31 F.Supp.3d 101, 104 (D.D.C.
2014). JPMorgan Chase Bank, N.A. (“Chase”) later
acquired WaMu's assets, along with the right to service
the loans in WaMu's portfolio. Compl. Ex. 1-1 at ECF p.
September 30, 2009, approximately one year after WaMu closed,
Trice received a letter from Chase notifying her that it
would formally begin servicing her loan. See Compl.
Ex. 1-1 at ECF p. 80. Sometime later, Chase notified Trice
that-consistent with the terms of her mortgage
agreement-going forward, her payments would include escrow
amounts because Chase had paid a delinquent tax bill on her
behalf. Id. at ECF p. 83. Accordingly, Chase
demanded that Trice remit future mortgage payments that
included the escrow amounts and warned her that the bank
would not consider her account in good standing if she
submitted partial payments. Id. Despite receiving
this notification, Trice admits that she did not send
payments that included the escrow amount, and instead kept
paying both the insurance and taxes directly. Compl. ¶
7; Pls. Resp. at p. 3.
Trice's property was sold at a non-judicial foreclosure
sale. See Trice v. Nat'l Default Servicing
Corp., No. 2:16-CV-2101-GMN-GWF, 2017 WL 3925413 (D.
Nev. Sept. 6, 2017). Trice unsuccessfully sued Chase twice in
Nevada state court over the foreclosure, but the Nevada
Supreme Court affirmed the lower court decisions in both
cases.See Trice v. J.P. Morgan Chase
Bank, No. 63052, 2013 WL 5432353 (Nev. Sept. 20, 2013);
Trice v. J.P. Morgan Chase Bank, No. 66586, 2015 WL
1858865 (Nev. Apr. 17, 2015). Trice also unsuccessfully sued
Chase, along with other defendants, in three Nevada federal
actions, one of which was affirmed on appeal. Trice v.
J.P. Morgan Chase Bank, No. 2:15-cv-01614-APG-NJK, 2015
WL 10743195 (D. Nev. Nov. 18, 2015), aff'd sub
nom. Trice v. J.P. Morgan Chase Bank, N.A., 672
Fed.Appx. 679 (9th Cir. 2016); Trice v. Damion, No.
2:16-cv-01348-MMD-NJK, 2017 WL 187149(D. Nev. Jan. 17, 2017);
Trice v. Nat'l Default Servicing Corp., No.
2:16-cv-02101-GMN-GWF, 2017 WL 3925413 (D. Nev. Sept. 6,
2016, the FDIC sent Trice a letter indicating that she might
have a claim against WaMu, and providing instructions for
filing a claim. Compl. Ex. 1-1 at ECF p. 2. Trice submitted a
claim on August 16, 2016,  in which she challenged the foreclosure
and alleged, inter alia, that Chase had unlawfully
required her to include the escrow amounts in her mortgage
payment. Id. at ECF pp. 5-21; see Compl.
¶ 101 (“Plaintiff filed a claim with the [FDIC]
seeking validation of Chase's successor in interest
claim, but also to resolve the dispute that arose from
Chase's unilateral decision to modify the pre
receivership agreement between the Plaintiff and [WaMu] that
enabled her to make direct payments of her property taxes and
August 31, 2016, the FDIC sent Trice a letter disallowing the
claim because it “ha[d] not been proven to the
satisfaction of the Receiver. 12 U.S.C. §
1821(d)(5)(D).” Compl. ECF No. 1-1 at ECF pp. 57-58.
The letter informed Trice that if she disagreed with the
agency's decision, she had sixty days from the date of
the letter to file a lawsuit in federal court, and that if
Trice did not file a timely lawsuit, the claim disallowance
would become final and she would “have no further
rights or remedies with respect to [the] claim.”
Id. p. 57 (citing 12 U.S.C. §
1821(d)(6)(B)(ii)). The letter also informed Trice that she
was required to file any lawsuit challenging the disallowance
in the district where the failed institution's principal
place of business was located or in the District of Columbia.
Trice admits that WaMu's principal place of business was
in the Western District of Washington, she did not seek
timely judicial review of the FDIC's decision in that
district or in the District of Columbia. ECF No. 3, Pls.
Resp. to Show Cause Order at p. 3. Instead, within the
prescribed sixty-day window, Trice sued Chase in one of the
Nevada federal lawsuits discussed above, without naming the
FDIC as a defendant. See Trice, 2017 WL 3925413.
Sometime later, also within the sixty-day window, she moved
to add the FDIC as a defendant, raising the same issues she
raises in this suit. See Id. at ECF No. 12; Compl.
Ex. 1-1 at ECF pp. 41-53.
one year after the FDIC disallowed her claim, on August 2,
2017, Trice filed suit in this court, seeking, inter
alia, compensatory damages from the FDIC and a judicial
declaration that her loan was “void as a result of
Chase's” alleged misconduct. Compl. p. 37.
Approximately one month later, the Nevada federal court
denied Trice's motion to add the FDIC to her lawsuit
against Chase and granted Chase's motion for summary
judgment. Trice, 2017 WL 3925413.
the FDIC filed its motion to dismiss in this case, this court
issued an Order warning Trice that if she failed to address
any of the FDIC's arguments in her response, the
arguments might be treated as conceded. ECF No. 8.
evaluating a motion to dismiss under Rule 12(b)(1), the court
must “assume the truth of all material factual
allegations in the complaint and ‘construe the
complaint liberally, granting plaintiff the benefit of all
inferences that can be derived from the facts
alleged.'” Am. Nat'l Ins. Co. v. FDIC,
642 F.3d 1137, 1139 (D.C. Cir. 2011) (citation omitted).
However, “‘the court need not accept factual
inferences drawn by plaintiffs if those inferences are not
supported by facts alleged in the complaint, nor must the
court accept plaintiff's legal conclusions.'”
Disner v. United States, 888 F.Supp.2d 83, 87
(D.D.C. 2012) (citation omitted). Additionally, the court
“is not limited to the allegations of the
complaint.” Hohri v. United States, 782 F.2d
227, 241 (D.C. Cir. 1986), vacated on other grounds,
482 U.S. 64 (1987). Instead, “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 (D.C. Cir. 1992)).
presumes that “a cause lies outside [the court's]
limited jurisdiction” unless the party asserting
jurisdiction establishes otherwise. Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Thus,
the plaintiff bears the burden of establishing jurisdiction
by a preponderance of the evidence. See Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992).
withstand a Rule 12(b)(6) challenge, “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)
(internal quotation marks and citation omitted). In other
words, the complaint must contain “a short and plain
statement of the claim” and “the grounds for the
court's jurisdiction” so that a defendant has fair
notice of the claim and the grounds upon which it rests.
Fed.R.Civ.P. 8(a); Erickson v. Pardus, 551 U.S. 89,
93 (2007). “In ruling on a motion to dismiss, the Court
may consider not only the facts alleged in the complaint, but
also documents attached to or incorporated by reference in
the complaint and documents attached to a motion to dismiss
for which no party contests authenticity.” Demissie
v. Starbucks Corp. Office & Headquarters, 19
F.Supp.3d 321, 324 (D.D.C. 2014).
alleges that the FDIC violated the Financial Institutions
Reform, Recovery, and Enforcement Act's
(“FIRREA”) provisions requiring notice explaining
the reasons for disallowing FDIC claims: 12 U.S.C.
§§ 1821(d)(5)(A)(iv),  1821(d)(5)(D),
C.F.R. § 14.9. Similarly, Trice alleges that the FDIC
violated the Real Estate Settlement Procedures Act
(“RESPA”) by failing to give her notice when her
loan was transferred to a new servicer. See Compl.
¶¶ 25, 36, 40, 46 (citing 12 U.S.C. §
2605(c)(2)(B)(iii)).. She also claims the FDIC violated 42
U.S.C. § 1986 by failing to prevent a conspiracy
involving Chase, Compl. ¶¶ 94-103, and claims the
FDIC engaged in fraudulent misrepresentation/concealment,
id. ¶¶ 60-65, ¶¶ 80- 93, as well
as deceptive trade practices, id. ¶¶
66-79. Finally, in her reply brief, Trice attempts to add
claims under the Administrative Procedure Act
(“APA”), 5 U.S.C. § 706, and the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 2671 et seq.
was enacted “to enable the FDIC to expeditiously wind
up the affairs of literally hundreds of failed financial
institutions throughout the country.” Am. Nat'l
Ins. Co. v. FDIC, 642 F.3d 1137, 1141 (D.C. Cir. 2011)
(citations and alterations omitted). Consistent with this
mission, after a financial institution is declared insolvent,
the FDIC must publish notice of the institution's
liquidation and mail notice to entities or persons who may
have claims against the institution. Office &
Prof'l Emps. Int'l Union, Local 2 v. FDIC, 962
F.2d 63, 65 (D.C. Cir.1992) (citation omitted); Brady
Dev. Co. v. Resolution Tr. Corp., 14 F.3d 998, 1002-03
(4th Cir.1994) (cited with approval in Muhammad v.
FDIC, 448 Fed.Appx. 74');">448 Fed.Appx. 74, 75 (D.C. Cir. 2012)). The
processing schedule for such claims is as follows:
Congress established an administrative scheme for processing
the claims received after publication and mailing of notices.
12 U.S.C. §§ 1821(d)(5)-(14). After a claimant
submits a claim to the [FDIC] . . . ., the [FDIC] has 180
days in which to allow or disallow the claim. 12 U.S.C.
§ 1821(d)(5)(A)(i). The claim is essentially tolled
during this 180 day administrative review. If the [FDIC]
disallows the claim or the 180 day period expires without
[FDIC] action, then the claimant has sixty days to seek
further administrative determination or judicial relief. 12
U.S.C. § 1821(d)(6)(A). If the claimant fails to file
suit or seek administrative review within sixty days of the
denial or non-action, then the claim is deemed permanently
disallowed. 12 U.S.C. § 1821(d)(6)(B).
Brady, 14 F.3d at 1003. “Congress instructed
district courts to ‘determine' claims against
failed banks de novo, rather than merely to review,
for error or abuse FDIC's . . . decision.”
Office & Prof'l Emps. Int'l ...