Harris v. Citimortgage, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PHILLIP HARRIS,

Plaintiff, Civil Action No. 11-1591 (BJR)
v.
MEMORANDUM OPINION
CITIMORTGAGE, INC., GRANTING IN PART AND DENYING
IN PART DEFENDANTS’ MOTION
and TO DISMISS

MORTGAGE ELECTRONIC
REGISTRATION SYSTEM,
INC.

Defendants.

This action arises from transactions surrounding the mortgage of Phillip Harris’s

residential property (“the property”), located at 1711 Stanton Terrace SE in the District of

Columbia. Harris alleges that defendants CitiMortgage, Inc. (“CMI”) and Mortgage Electronic

Registration System, Inc. (“MERS”) (collectively, “defendants”) violated the Truth in Lending

Act (“TILA”), 15 U.S.C. §1601 et seq, and the Real Estate Settlement Procedures Act

(“RESPA”), 12 U.S.C. § 2607 et seq, and committed various torts against him when they

financed his purchase of the property. Harris seeks damages, an injunction against foreclosure

and eviction, and release of all liens against the property. Before the court are [Dkt. ## 4,5]

defendants’ motions to dismiss the complaint for failure to state a claim upon which relief can be

granted.1 Upon review of the motion, the opposition thereto, and the record of this case, the

court concludes that defendants’ motion must be granted in part and denied in part.

1
In its motion to dismiss, MERS joined CMI’s motion to dismiss and incorporated by
references CMI’s memorandum of points and authorities. See MERS’s Mot. To Dismiss [Dkt. #
5].
 I. FACTUAL BACKGROUND

The following factual summary assumes Harris’s allegations to be true.2 See Bell

Atl.Corp. v. Twombly, 550 U.S. 544, 589 (2007). On June 30, 2005, Harris purchased the

property with a $220,000 loan from CMI. Compl. ¶¶ 4, 6, 25[b]. 3 “[A]t some point in time,”

Harris defaulted on his debt obligation, id. ¶ 23, and the designated Trustee executed notices of

default and sale before executing a trustee’s deed in March 2009. After the default and before

the commencement of foreclosure, Harris and CMI entered into loan modification negotiations.

Harris avers that he was “led to believe a loan modification had been reached” and that he sent

CMI a check for $3,500, as set forth in the alleged agreement. Id. ¶ 29. He claims that he sent

the check in reliance on CMI’s representations that such an agreement existed. Harris allegedly

waited for the loan modification documents but never received them. After the foreclosure, CMI

brought an action to evict Harris from the property. Id. ¶ 30.

According to Harris, fraud, misrepresentations and other illegal acts marked all stages of

these transactions. He alleges that CMI, without his knowledge, overstated his assets, income,

collateral and other financial information in order to qualify Harris for the mortgage. Id. ¶¶ 22,

25[b]. CMI also allegedly failed to provide Harris with a Consumer Handbook on Adjustable

Rate Mortgages and to disclose to him the negative amortization characteristics of the Adjustable

Rate Mortgage loan as well as the interest-only payment feature and other legal obligations, all in

violation of TILA and RESPA. Id. ¶¶ 28[b]–33[b]. In addition to asserting these statutory

violations, Harris claims that defendants had no standing to foreclose on his property, that
2
In numerous sections of their motion, defendants misstate and mischaracterize these
allegations. The Court reminds defendants that courts treat the alleged facts as true when
reviewing motions to dismiss, a well-established standard of review that the defendants
themselves reference in their motion. See Defs.’ Mot. To Dismiss at 7. Factual disputes are
considered at later stages of the litigation.
3
Harris’s complaint is numbered incorrectly as there are two sets of paragraphs 1–22. The
Court therefore adds a “[b]” to paragraphs that are repeated in number.
2
defendants were grossly negligent in failing to disclose material terms of the loan, and that they

are liable for predatory lending. He also argues that defendants “willfully, wantonly and

intentionally concealed these facts and/or documents” from him and that this concealment

prevented him from discovering the illegal acts until July 2011. Id. ¶¶ 36[b]–37[b]; see also ¶¶

79[b], 81[b], 82[b]. In light of these alleged violations, Harris seeks an injunction against his

eviction and defendants’ profits earned through “unjust enrichment” as well as other damages.

Harris filed his lawsuit in the Superior Court of the District of Columbia on July 19,

2011. Defendants removed this matter to this Court on September 1, 2011. They now move to

dismiss Harris’s complaint for failure to state a claim upon which this court can grant relief.

II. LEGAL STANDARD

“To survive a 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When

reviewing a motion to dismiss pursuant to Rule 12(b)(6), a court must accept as true all factual

allegations contained in the complaint, and the plaintiff should receive the benefit of all

favorable inferences that can be drawn from the facts alleged. See Equal Em’t Opportunity

Comm’n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624–25 n.3 (D.C. Cir. 1997).

The Federal Rules of Civil Procedure require only that a complaint contain “‘a short and

plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Twombly,

550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a plaintiff must

set forth in the complaint “sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

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“[C]ontent that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged” meets this plausibility requirement. Id. Although “detailed factual

allegations” are not necessary to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must

furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a cause

of action.” Twombly, 550 U.S. at 555. A complaint does not suffice “if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 557).

The defendant bears the burden of proving the plaintiff has failed to articulate a claim

upon which relief could be granted. Kundratic v. Thomas, 407 F. App’x 625, 626-27 (3d Cir.

2011) (citing Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000); 5B Fed. Prac.

& Pro. Civ. § 1357 (3d ed.) (“All federal courts are in agreement that the burden is on the

moving party to prove that no legally cognizable claim for relief exists.”).

III. ANALYSIS

A. TILA

Defendants contend that this court lacks subject matter jurisdiction over Harris’s TILA

claim because he did not file his complaint “within one year from the date of the occurrence of

the [alleged] violation,” i.e., within one year of closing, as required under § 1640(e) of TILA.

See 15 U.S.C. § 1640(e). They root their argument in the premise that TILA’s statute of

limitations is a jurisdictional prerequisite and that, as a result, the court cannot equitably toll the

limitations period.4 Harris disagrees with this proposition, contending that § 1640(e) is not

4
In making this argument, defendants effectively assert a motion to dismiss for lack of
subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) as to Harris’s TILA
and RESPA claims. See Fed. R. Civ. Proc. 12(b)(1). Rule 12(b)(1) addresses a court’s subject
matter jurisdiction to adjudicate a case. Because this inquiry deals with a court’s power to hear a
plaintiff’s claim, a Rule 12(b)(1) motion imposes on the court an affirmative obligation to ensure
that it is acting within the scope of its authority. Grand Lodge of Fraternal Order of Police v.
4
jurisdictional. Harris further argues that he is entitled to equitable tolling because the defendants

concealed their alleged misdeeds from him. The Court agrees with Harris on both counts and

addresses them in turn.

1. State of Limitations and Jurisdiction

Although the doctrine of equitable tolling “is read into every federal statute of

limitations,” Holmberg v. Armbrecht, 327 U.S. 392, 396–97 (1946), “Congress can set

jurisdictional time prerequisites to the entertainment of federal claims.” Hardin v. City Title &

Escrow Co., 797 F.2d 1037, 1040 (D.C. Cir. 1986). The D.C. Circuit has not yet addressed the

question of whether TILA’s limitations provision, 15 U.S.C. § 1640(e), is jurisdictional. In

deciding this issue, the fundamental inquiry is what Congress intended when it drafted the

statute. Hardin, 797 F.2d at 1040–41; King v. California, 784 F.2d 910, 914–15 (9th Cir. 1986);

Jones v. TransOhio Sav. Ass’n, 747 F.2d 1037, 1040–41 (6th Cir. 1984). In Arbaugh v. Y & H

Corp., 546 U.S. 500 (2006), the Supreme Court adopted a “clear statement” rule for determining

whether a statutory prerequisite to suit is jurisdictional:

If the Legislature clearly states that a threshold limitation on a statute’s
scope shall count as jurisdictional, then courts and litigants will be duly
instructed and will not be left to wrestle with the issue. But when Congress
does not rank a statutory limitation on coverage as jurisdictional, courts
should treat the restriction as nonjurisdictional in character.

Id. at 515–16 (citation omitted).

More recently, the D.C. Circuit addressed this issue in the context of exhaustion of

remedies. In Blackmon–Malloy v. U.S. Capitol Police Bd, it found that, in light of Arbaugh,

“direct statutory language” is necessary to hold a statutory requirement jurisdictional.

Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (citing 5A CHARLES A. WRIGHT & ARTHUR R.
MILLER, FED. PRAC. & PROC. CIV. 2D § 1350). “The plaintiff bears the burden of establishing
that the court has jurisdiction.” White v. United States, 791 F. Supp. 2d 156, 159 (D.D.C ,2011)
(quoting Grand Lodge of Fraternal Order of Police, 185 F. Supp. 2d at 13).
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Blackmon–Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 705 (D.C. Cir. 2009) (“To make

compliance with a statutory provision a prerequisite to federal jurisdiction, a statute must include

‘direct statutory language indicating that there is no federal jurisdiction prior to [such

compliance].’”) (quoting Avocados Plus, Inc. v. Veneman, 370 F.3d 1243, 1248 (D.C. Cir.

2004)) (brackets in original).

Applying this “clear statement” rule to § 1640(e) of TILA, this Court does not find

unambiguous Congressional intent to link jurisdiction and the limitations period. In full, the

section provides:

(e) Jurisdiction of courts; limitations on actions; State attorney general
enforcement

Any action under this section may be brought in any United States district
court, or in any other court of competent jurisdiction, within one year from
the date of the occurrence of the violation . . . . This subsection does not
bar a person from asserting a violation of this subchapter in an action to
collect the debt which was brought more than one year from the date of
the occurrence of the violation as a matter of defense by recoupment or
set-off in such action, except as otherwise provided by State law.

For at least three reasons, the court discerns no clear statement in this language. First, the

first clause is permissive rather than definitive: “any action . . . may be brought in any United

States district court, or in any other court of competent jurisdiction, within one year . . . .” Had

Congress intended to terminate the federal cause of action after one year, thereby closing the

jurisdiction to the federal courts to all claims filed thereafter, it would have said so in more

definitive terms. Second, the title of the section—“Jurisdiction of the courts; limitations on

actions; and State attorney general enforcement”—is followed by a substantive section that

addresses each of these issues in that order. The Court does not read the title’s “Jurisdiction of

courts” clause to encompass the “limitations on actions” clause. Instead, they are parallel and

best read as related but separable provisions. While the D.C. Circuit inferred a hierarchy as to

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RESPA’s similarly statute of limitations provision in Hardin, (i.e. that the word “Jurisdiction” in

the title’s section compelled an inference that the statute of limitations discussed in the following

section was jurisdictional), Hardin, 797 F.2d at 1039, the court does not find this argument

applicable or persuasive in the TILA context.5

Third, beyond the four corners of § 1640(e), other provisions of TILA, including its

stated, remedial purpose, suggest that Congress did not intend for the limitations period to be

jurisdictional. Section 1601 of TILA sets forth the purpose of the Act. In relevant part it

provides:

The Congress finds that economic stabilization would be enhanced and the
competition among the various financial institutions and other firms
engaged in the extension of consumer credit would be strengthened by the
informed use of credit. The informed use of credit results from an
awareness of the cost thereof by consumers. It is the purpose of this
subchapter to assure a meaningful disclosure of credit terms so that the
consumer will be able to compare more readily the various credit terms
available to him and avoid the uninformed use of credit. . .

15 U.S.C. § 1601(a).

This language suggests that Congress sought to protect consumers through disclosure and to

guard against any divergent and fraudulent practices stemming from uninformed use of credit.

See Mourning v. Family Publications Service, Inc., 411 U.S. 356, 363–64 n.18, 19 (1973) (citing

H.R. Rep. No. 1040, 90th Cong., 1st Sess., 13 (1967); S. Rep. No. 392, 90th Cong., 1st Sess. 1–2

(1967) U.S. Cong. & Admin. News 1968, p. 1962). In this vein, the court finds persuasive the

Eleventh Circuit’s reasoning in Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703 (11th Cir.

1998). There, the majority concluded that a reading which made the limitations period a

5
In dicta, the Hardin court suggested that § 1640(e) was jurisdictional. However, as the
court in Hughes v. Abell, 794 F. Supp. 2d 1 (D.D.C.2010), points out, Arbaugh subsequently
established a clear statement standard. Therefore, the court does not read Hardin’s analysis to
control this case.

7
jurisdictional prerequisite “would lead to the anomalous result that a statute designed to

remediate the effects of fraud would instead reward those perpetrators who concealed their fraud

long enough to time-bar their victims’ remedy.” Id. at 706. Therefore, this Court, like the Ellis

majority, “cannot believe this was Congress’ intent.” Id. The Sixth Circuit reached the same

conclusion when it found that “[o]nly if Congress clearly manifests its intent to limit the federal

court’s jurisdiction will it be precluded from addressing allegations of fraudulent concealment

which by their very nature, if true, serve to make compliance with the limitation period imposed

by Congress an impossibility.” TransOhio Savings, 747 F.2d at 1041. Section 1640(e) does not

manifest such an intent.

Thus, in light of Arbaugh’s mandate, the text of § 1640 (e), and the purpose of TILA, the

court concludes that the Act’s limitations provision is not jurisdictional. In so holding, it joins

other courts in this district as well as other the Circuit Courts of Appeals cited above. See

Hughes, 794 F. Supp. 2d 1, Ellis, 160 F.3d at 706; King, 784 F.2d at 914–15; Jones, 747 F.2d at

1040–41; but see George v. Bank of Am., N.A., 821 F.Supp.2d 299, 302; Griffith v. Barnes, 560

F.Supp.2d 29, 36–37 (D.D.C. 2008).

2. Harris Has Plead Sufficient Facts to Warrant Equitable Tolling at this Stage of
the Litigation

The doctrine of equitable tolling may suspend the limitations period until the borrower

discovers or had a reasonable opportunity to discover the fraud or nondisclosures that form the

basis of the TILA action. See King, 784 F.2d at 915. “Courts may allow equitable tolling of a

statute of limitations where a claimant has received inadequate notice of the facts that form the

basis for his claim.” Chen v. Bell-Smith, 768 F. Supp. 2d 121, 149 (D.D.C. 2011) (citations and

quotations omitted); Freeman v. FDIC, 56 F.3d 1394, 1405 n.2 (D.C. Cir. 1995). There is a high

hurdle for equitable tolling, allowing a statute to be tolled “only in extraordinary and carefully

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circumscribed instances.” Norman v. U.S, 467 F.3d 773, 776 (D.C. Cir. 2006) (citing Smith-

Haynie v. District of Columbia, 155 F.3d 575, 580 (D.C. Cir. 1998) (internal quotation marks

omitted). As the Supreme Court has explained, “[f]ederal courts have typically extended

equitable relief only sparingly. We have allowed equitable tolling in situations where . . . the

complainant has been induced or tricked by his adversary’s misconduct into allowing the filing

deadline to pass.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990) (footnote omitted).

Meant to “ensure[ ] that the plaintiff is not, by dint of circumstances beyond his control, deprived

of a reasonable time in which to file suit,” Chung v. DOJ, 333 F.3d 273, 279 (D.C. Cir. 2003)

(internal quotation marks omitted), equitable tolling is unwarranted where a litigant has “failed to

exercise due diligence in preserving his legal rights,” Irwin, 498 U.S. at 96; see also Smith–

Haynie, 155 F.3d at 580. At the same time, the Supreme Court has repeatedly applied equitable

tolling to statutes of limitations to prevent unjust results or to maintain the integrity of a statute.

See Bailey v. Glover, 88 U.S. (21 Wall.) 342, 349–50 (1874) (Bankruptcy Act of 1867);

Exploration Co. Ltd. v. United States, 247 U.S. 435, 449–50 (1918) (Act of March 3, 1891, 26

Stat. 1093, to vacate land patents); Holmberg v. Armbrecht, 327 U.S. 392, 396–97 (1946)

(Federal Farm Loan Act); Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 234–35

(1959) (Federal Employers’ Liability Act). Cf. Zipes v. Trans World Airlines, 455 U.S. 385, 393

(1982) (Title VII time requirement for filing charges with Equal Employment Opportunity

Commission).

Here, Harris claims that he did not discover the alleged fraudulent nature of the

transaction until July 2011. He also alleges, albeit with barely sufficient facts, that he exercised

all due diligence is ascertaining these violations. Accepting his factual allegations as true—as it

must at this stage of the litigation, St. Francis, 117 F.3d at 625—the court concludes that Harris

9
has plead sufficient facts to warrant equitable tolling. As a result, the court declines to dismiss

Harris’s TILA’s claim as time-barred.6

B. Harris’s RESPA Claim Is Time-Barred and Must Therefore Be Dismissed

Harris alleges that defendants violated RESPA when they failed to provide Harris with

required documents and charged prohibited fees. Defendants contend that this count must be

dismissed because RESPA’s statute of limitations, which is jurisdictional, has expired. Harris

responds that he is entitled to equitable tolling for the same reasons that this equitable remedy is

proper under TILA. He is wrong.

RESPA provides that “[a]ny action pursuant to the provisions of section . . . 2607 . . . of

this title may be brought . . . within 1 year . . . from the date of the occurrence of the violation.”

See 12 U.S.C. § 2614. “[D]ate of the occurrence” in § 2614 refers to the date of the closing. See

Snow v. First Am. Title Ins. Co., 332 F.3d 356, 359 (5th Cir. 2003); see also Palmer v.

Homecomings Fin., LLC, 677 F. Supp. 2d 233, 237–38 (D.D.C. 2010) (explaining that “[a] cause

of action under § 2607 accrues on the date of the closing”). It is undisputed that the closing in

this case occurred in 2005, and that Harris filed this lawsuit in 2011—six years after the closing.

Therefore, the one-year limitations period has lapsed and the claim is time-barred. Equitable

tolling is not available for this claim because, unlike its indirect treatment of TILA’s limitations

period in dictum, the D.C. Circuit has definitively held that RESPA’s statute of limitations is

6
The Court will not consider defendants’ Doctrine of Laches argument because it was
advanced for the first time in their reply brief, thereby depriving Harris of an opportunity to
render a meaningful response. See Council on American-Islamic Relations Action Network, Inc.
v. Gaubatz, 793 F. Supp. 2d 311, 337 (D.D.C. 2011) (quoting Baloch v. Norton, 517 F. Supp. 2d
345, 348 (D.D.C. 2007) (“If the movant raises arguments for the first time in his reply to the non-
movant’s opposition, the court [may] either ignore those arguments . . . or provide the non-
movant an opportunity to respond.”), aff’d, 550 F.3d 1191 (D.C. Cir. 2008)). In any event,
defendants failed to attach the letter they reference as support for this defense.

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jurisdictional and that, as a result, courts may not toll the period in equity. Hardin, 797 F.2d at

1039–40. Therefore, this Court lacks jurisdiction to entertain Harris’s RESPA claim, and it must

be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction.

C. Harris’s Injunction, Quiet Title, and Unjust Enrichment Causes of Action Must be
Dismissed

Defendants assert that Harris has failed to state a claim under Rule 12(b)(6) in his counts

for an injunction, quiet title, and unjust enrichment. With regard to injunction and quiet title,

they claim that such counts are not causes of action but rather remedies to which he would only

be entitled if he prevail in his other, underlying claims. As to unjust enrichment, defendants

maintain that Harris has not pled necessary elements of such a claim – i.e. that he has conferred a

benefit upon the defendant or breach of a contractual term. Harris fails to respond to these

arguments, except to contend that he has met Rule 8 and Rule 9 pleading requirements. Because

this response fails to address to defendants’ assertions, it concedes them. See, e.g., Hopkins v.

Women’s Div., Gen. Bd. of Global Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002) (“It is

well understood in this Circuit that when a plaintiff files an opposition to a motion . . . addressing

only certain arguments raised by the defendant, a court may treat those arguments that the

plaintiff failed to address as conceded.”); Day v. D.C. Dep’t of Consumer & Regulatory Affairs,

191 F. Supp. 2d 154, 159 (D.D.C. 2002) ( “If a party fails to counter an argument that the

opposing party makes in a motion, the court may treat that argument as conceded.”) (citation

omitted); Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003). The Court therefore

dismisses these counts. Injunctive and equitable relief may still be available remedies should

Harris prevail on one of his underlying claims.7

7
As well, Harris has conceded that defendant CMI has standing to foreclose upon the
property. In his complaint, Harris stated that the Dead of Trust and the mortgage were
“separated from each other” as a result of the securitization of the loan, Compl. ¶ 34, and that
11
D. Harris’s Gross Negligence Claim Is Not Time-Barred

Harris alleges that defendants breached their general duty of good faith and fair dealing

when they failed to disclose certain key information about the loan terms to Harris and when

they knowingly concealed this information from him. Defendants argue the statute of limitations

bars Harris’s gross negligence claim for two reasons. First, they contend that because the gross

negligence claim is substantively the same as Harris’s TILA and RESPA claims, it must

similarly be time-barred on jurisdictional grounds. Second, they maintain that the claims are

time-barred by the default three-year statute of limitations that applies in the District of

Columbia. In response, Harris repeats the uncontested point that the statute of limitations is

three years. This paltry response verges on fatally deficient. However, because Harris has plead

sufficient facts to toll his TILA claim (for purposes of surviving dismissal at this stage of the

litigation) and because the same facts regarding concealment support tolling for his negligence

claim, the court will not regard his argument as conceded. Beyond asserting a statute of

limitations defense, defendants have not challenged the merits of his negligence claim, and the

court will not craft such arguments for them. See Langley v. Napolitano, 677 F. Supp. 2d 261,

270 (D.D.C 2010).

E. Harris’s Predatory Lending Claim is Not Time-Barred

Finally, defendants argue that Harris’s predatory lending claim—presumably made under

the District of Columbia’s Consumer Protection Procedures Act, D.C. Code §§ 28–3901, et

because the Pooling and Servicing Agreement (“PSA”) required them to be united, defendants
lack standing to foreclose. Id. ¶¶ 34–36. Defendants dispute each of these claims, contending
that CMI can establish standing “by virtue of its possession of the original note; the lien was
perfected by recordation with the District of Columbia Land Records; and no release was filed
prior to the foreclosure deed.” Defs.’ Mot. To Dismiss at 9. As a result, defendants argue, “CMI
had standing to proceed upon its lien, and was the purchaser at the foreclosure sale.” Id. In his
opposition brief, Harris fails to respond to any of their arguments. Therefore, the court denies
his standing argument. Hopkins, 238 F. Supp. 2d at 178.
12
seq—must fail because it “merely recites the statutory language of the District of Columbia’s

Predatory Lending Statute” and that, in any event, it should be dismissed because the applicable

statute of limitations has expired.8 Defs.’ Mot. To Dismiss at 13. Harris disagrees. Consistent

with their argumentation throughout their pleadings, both parties advance largely deficient and

incongruous claims in support of their positions. Based on the meager papers before it, the court

concludes that, at this early stage of the litigation, Harris has met the pleading burden, albeit just

barely. As well, defendants have not met their burden in showing that his allegations do not state

a claim for relief. Because “detailed factual allegations” are not necessary to survive a motion to

dismiss, Twombly, 550 U.S. at 555, and because Harris’s complaint supplies just enough facts to

rise about a “formulaic recitation of the elements of a cause of action” that Twombly deems

insufficient, the court declines to dismiss this claim. Id. As well, Harris has alleged sufficient

facts that, for the same reasons recounted above, support equitable tolling of his claim.

Therefore, his predatory lending claim will survive defendant’s motion to dismiss it.

IV. CONCLUSION

For the foregoing reasons, the court concludes that [Dkt. ## 4,5] defendants’ motion must

be granted as to Harris’s RESPA, injunction, quiet title, and unjust enrichment claims. The

motion must be denied as to Harris’s TILA, gross negligence and predatory lending claims. An

appropriate Order accompanies this Memorandum Opinion.

Signed July __, 2012.

8
Defendants also contend that Harris’s predatory lending claim “does not pass the modern
FRCP 8(a) ‘notice pleading’ standard as modified by Iqbal and Twombly.” Harris responds in
opposition that he has met Rule 8 standards. In reply, defendants argue that Harris’s failure to
defend his claim on Rule 12(b)(6) grounds concedes their argument for dismissal. The
incongruity of defendants’ argumentation is glaring. Harris conceded nothing by responding to
the defendants’—albeit incorrectly stated and insufficiently supported— arguments in support of
their motion for dismissal. As a result, the court will not treat Harris’s argument as conceded.
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 BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE

14