Avila v. Citimortgage, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
RENÉ AVILA and NANCY AVILA, )
)
Plaintiffs, )
)
v. ) Civil Action No. 13-1786 (RBW)
)
CITIMORTGAGE, INC., et al. )
)
Defendants. )
__________________________________________)

MEMORANDUM OPINION

Pro se plaintiffs René Avila and Nancy Avila bring this civil action against several

defendants, 1 and appear to be alleging that the attempted foreclosure on their home violates one

of the consent decrees issued in United States v. Bank of America, Civ. No. 12-361 (D.D.C.,

filed Mar. 12, 2012), see Complaint (“Compl.”) ¶ 1(A)-(E), as well as the Fair Debt Collection

Practices Act, 15 U.S.C. §§ 1692-1692p (2012), the Rosenthal Fair Debt Collection Practices Act

(“Rosenthal Act”), Cal. Civ. Code §§ 1788-1788.33 (2001), and 42 U.S.C. §§ 1983, 1985, 1986

(2012), see id. ¶¶ 57-91. The plaintiffs additionally allege that the defendants committed fraud,

deprived them of their due process rights under the United States and California constitutions,

and subjected them to emotional distress. See id. ¶¶ 57-91. They seek injunctive relief, id. at

34:20-21, as well as “equitable relief, statutory damages, actual damages, reasonable attorney’s

fees, and costs,” id. ¶ 91. Currently before the Court are Priority Posting and Publishing, Inc.’s

Motion to Dismiss (“Priority’s Mot.”); Defendant CitiMortgage, Inc.’s Motion to Dismiss (“Citi

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The defendants are CitiMortgage, Inc.; CitiFinancial Mortgage Company, LLC; Quality Loan Service Corp.;
Priority Posting and Publishing, Inc.; Pite Duncan, LLP; McCarthy & Holthus, LLP; Christopher L. Peterson, Esq.;
Ashley B. Hennessee, Esq.; and John Does 1-10, all of which were somehow allegedly involved with or related to
proceedings surrounding the plaintiffs’ mortgage for, and/or foreclosure or attempted foreclosure on, the plaintiffs’
home. See Compl. ¶¶ 32-38.

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Inc.’s Mot.”); Defendants McCarthy & Holthus, LLP, Ashley B. Hennessee and Quality Loan

Service Corp.’s Motion to Dismiss (“McCarthy’s Mot.”); Defendant Christopher L. Peterson,

Esq.’s Motion to Dismiss for Lack of Personal Jurisdiction (“Peterson’s Mot.”); and Defendant

CitiFinancial Mortgage Company, LLC’s Motion to Dismiss (“Citi LLC’s Mot.”), all of which

seek dismissal of the plaintiffs’ complaint under various provisions of Federal Rule of Civil

Procedure 12. 2 Upon careful consideration of the parties’ submissions, 3 and for the reasons

stated below, the Court grants the defendants’ motions.

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Two additional motions are also before the Court: (1) Defendants Quality Loan Service, McCarthy & Holthus and
Ashley B. Hennessee’s Motion to Extend Time, which is unopposed, and (2) Defendant Christopher L. Peterson,
Esq.’s Request for Judicial Notice in Support of Motion to Dismiss for Lack of Personal Jurisdiction.

Because defendants Quality Loan Service, McCarthy & Holthus and Ashley B. Hennessee demonstrated good cause
for their requested extension of time to file their motion to dismiss, see ECF No. 4 at 2, and because neither the other
defendants nor the plaintiffs oppose the motion, the Court will grant the motion nunc pro tunc to January 17, 2014.
Defendants Quality Loan Service, McCarthy & Holthus and Ashley B. Hennessee’s motion to dismiss the plaintiffs’
complaint, see generally McCarthy Mot., is therefore deemed timely filed.

As to defendant Peterson’s motion for judicial notice, see ECF No. 9, the Court denies the motion as moot in light of
its finding that venue in the District of Columbia is improper, as explained more fully below.
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In addition to the filings already mentioned, the Court considered the following submissions by the parties in
rendering its decision: (1) the Memorandum in Support of Priority Posting and Publishing, Inc.’s Motion to Dismiss
(“Priority’s Mem.”); (2) the Memorandum of Points and Authorities in Support of Defendant CitiMortgage, Inc.’s
Motion to Dismiss (“Citi Inc.’s Mem.”); (3) the Memorandum of Points and Authorities in Support of Defendants
McCarthy & Holthus, LLP, Ashley B. Hennessee, Esquire and Quality Loan Service Corp.’s Motion to Dismiss
(“McCarthy’s Mem.”); (4) Christopher L. Peterson, Esq.’s Memorandum in Support of Defendant’s Motion to
Dismiss for Lack of Personal Jurisdiction (“Peterson’s Mem.”); (5) the Memorandum of Points and Authorities in
Support of Defendant CitiFinancial Mortgage Company, LLC’s Motion to Dismiss (“Citi LLC’s Mem.”); (6) the
Plaintiffs’ Answer and Opposition to Defendant Priority Posting and Publishing, Inc.’s Motion to Dismiss, ECF No.
15 (“Pls.’ Priority Opp’n”); (7) the Reply Memorandum in Further Support of Priority Posting and Publishing, Inc.’s
Motion to Dismiss (“Priority’s Reply”); (8) the Plaintiffs’ Answer and Opposition to Defendant Priority Posting and
Publishing, Inc.’s Motion to Dismiss, ECF No. 17; (9) the Plaintiffs’ Opposition and Answer to Defendants’ Motion
to Dismiss, ECF No. 18 (“Pls.’ Combined Opp’n); and (10) the Defendants’ Reply to Plaintiffs’ Opposition to
Motions to Dismiss (“Defs.’ Combined Reply”).

The plaintiffs filed two oppositions to defendant Priority Posting and Publishing, Inc.’s Motion to Dismiss. See
ECF Nos. 15, 17. The Court’s review of the submissions reveals that the two documents are identical, with the
exception of the certificate of service. Accordingly, the Court refers only to ECF No. 15, as abbreviated above, i.e.,
Pls.’ Priority Opp’n, when citing the plaintiffs’ opposition.

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 I. BACKGROUND

Although the plaintiffs’ complaint is lengthy and often incoherent, the Court distilled the

following facts from it.

The plaintiffs are the owners of the property located at 10055 Sycamore Canyon Road,

Moreno Valley, California 92557. Compl., Exhibit (“Ex.”) 2 (Deed of Trust) at 3. Defendant

CitiFinancial Mortgage Company, LLC was the original named beneficiary of the mortgage

agreement for the plaintiffs’ home. Id. at 1. CitiFinancial Mortgage Company, LLC

“irrevocably grant[ed] and convey[ed]” to a trustee the power to sell the property in the event the

plaintiffs defaulted on their mortgage. Id. at 2, 10-11. The mortgage further specified that

CitiFinancial Mortgage Company, LLC “at its option, may from time to time appoint a successor

trustee to any Trustee appointed” under the mortgage. Id. at 11.

On June 25, 2010, defendant CitiMortgage, Inc. became the beneficiary of the plaintiffs’

mortgage as a result of a merger. Compl., Ex. 3 (Assignment of Deed of Trust) at 1. Shortly

thereafter, CitiMortgage, Inc. exercised its option to appoint defendant Quality Loan Service

Corporation as the new trustee of the plaintiffs’ mortgage. Compl., Ex. 10 (Substitution of

Trustee) at 1.

In a notice dated April 24, 2012, Quality Loan Service Corporation informed the

plaintiffs that they had failed to pay their mortgage “installments of principal and interest which

became due on [December 1, 2011], and all subsequent installments of principal and interest

through” April 24, 2012. Compl., Ex. 13 (Notice of Default and Election to Sell Under Deed of

Trust (“Notice of Default”)) at 2-3. The notice further stated that the plaintiffs’ property would

be sold at a foreclosure sale unless they paid the outstanding installments due on their mortgage.

Id. at 1. A subsequent notice, dated June 26, 2013 informed the plaintiffs that they were “in

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default under [their] deed of trust” and a foreclosure sale was set for July 24, 2013, at 9:00 a.m.

Compl., Ex. 14 (Notice of Trustee’s Sale) at 1. While the complaint suggests that a foreclosure

sale took place, see, e.g., Compl. ¶ 85, it does not definitively indicate that the sale took place or

when it occurred. However, the plaintiffs indicated in a subsequent filing that their “home has

not been sold” and that “no foreclosure sale was effectuated.” Pls.’ Priority Opp’n at 2.

As noted above, the plaintiffs appear to be alleging in this lawsuit that the attempted

foreclosure on their home violates a consent decree issued in United States v. Bank of America,

Civ. No. 12-361 (D.D.C., filed Mar. 12, 2012), see Compl. ¶ 1(A)-(E), as well as the Fair Debt

Collection Practices Act, the Rosenthal Act, 42 U.S.C. §§ 1983, 1985, 1986, and various due

process provisions of the United States and California State Constitutions, see id. ¶¶ 57-91. The

plaintiffs further allege that the defendants committed fraud and have intentionally subjected

them to emotional distress. Id. In asserting their allegations, the plaintiffs challenge the validity

of various legal instruments and notices cited above. See id. ¶¶ 3-9, 13-19.

The defendants have filed motions to dismiss the plaintiffs’ complaint under several

provisions of Federal Rule of Civil Procedure 12. See Priority’s Mot. at 1 (Rules 12(b)(1),

12(b)(2), 12(b)(3), and 12(b)(6)); Citi Inc.’s Mot. at 1 (Rules 12(b)(3) and 12(b)(6)); McCarthy’s

Mot. at 1 (Rules 12(b)(3) and 12(b)(6)); Peterson’s Mot. at 1 (Rule 12(b)(6)); Citi LLC’s Mot. at

1 (Rules 12(b)(3) and 12(b)(6)). The plaintiffs oppose all of the motions.

II. STANDARDS OF REVIEW

A. Consideration of Pro Se Pleadings

The pleadings of pro se parties are to be “liberally construed, and a pro se complaint,

however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted

by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal citations and

4
quotation marks omitted). However, even though a pro se complaint must be construed liberally,

the complaint must still “present a claim on which the Court can grant relief.” Chandler v.

Roche, 215 F. Supp. 2d 166, 168 (D.D.C. 2002) (citing Crisafi v. Holland, 655 F.2d 1305, 1308

(D.C. Cir. 1981)).

B. Rule 12(b)(1) Motion to Dismiss

When a defendant moves for dismissal under Federal Rule of Civil Procedure 12(b)(1),

“the plaintiffs bear the burden of proving by a preponderance of the evidence that the Court has

subject matter jurisdiction.” Biton v. Palestinian Interim Self–Gov’t Auth., 310 F. Supp. 2d 172,

176 (D.D.C. 2004); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A court

considering a Rule 12(b)(1) motion must “assume the truth of all material factual allegations in

the complaint and ‘construe the complaint liberally, granting [the] plaintiff[s] 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) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).

However, “the district court may consider materials outside the pleadings in deciding whether to

grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharm., Inc. v. FDA, 402

F.3d 1249, 1253 (D.C. Cir. 2005) (citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C.

Cir. 1992)).

C. Rule 12(b)(3) Motion to Dismiss

In considering a motion to dismiss for lack of proper venue under Rule 12(b)(3), “the

Court accepts the plaintiff[s’] well-pled factual allegations regarding venue as true, draws all

reasonable inferences from those allegations in the plaintiff[s’] favor, and . . . resolves any

factual conflicts in the plaintiff[s’] favor.” Quarles v. Gen. Inv. & Dev. Co., 260 F. Supp. 2d 1, 8

(D.D.C. 2003) (internal quotation marks and citation omitted); see also 2215 Fifth St. Assocs. v.

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U-Haul Int’l, Inc., 148 F. Supp. 2d 50, 54 (D.D.C. 2001) (stating that courts will grant a 12(b)(3)

motion if “facts [are] presented that . . . defeat [the] plaintiff[s’] assertion of venue”) (citation

omitted). “Because it is the plaintiff[s’] obligation to institute the action in a permissible forum,

the plaintiff[s] usually bear[] the burden of establishing that venue is proper.” Freeman v. Fallin,

254 F. Supp. 2d 52, 56 (D.D.C. 2003) (citations omitted).

D. Rule 12(b)(6) Motion to Dismiss

A Federal Rule of Civil Procedure 12(b)(6) motion tests whether the complaint “state[s] a

claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially

plausible “when the plaintiff[s] plead[] factual content that allows the court to draw [a]

reasonable inference that the defendant[s] [are] liable for the misconduct alleged.” Id. (citing

Twombly, 550 U.S. at 556). While the Court must “assume [the] veracity” of any “well-pleaded

factual allegations” in the complaint, conclusory allegations “are not entitled to the assumption

of truth.” Id. at 679.

“‘In determining whether a complaint states a claim, the court may consider the facts

alleged in the complaint, documents attached thereto or incorporated therein, and matters of

which it may take judicial notice.’” Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C.

Cir. 2007) (citation omitted). And among the documents “subject to judicial notice on a motion

to dismiss” are “public records,” Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004), which

includes records from other court proceedings, Covad Commc’ns Co. v. Bell Atl. Corp., 407

F.3d 1220, 1222 (D.C. Cir. 2005).

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 III. LEGAL ANALYSIS

A. Whether Venue is Proper in the District of Columbia

Several defendants argue that venue is improper in the District of Columbia. See

Priority’s Mem. at 2; Citi Inc.’s Mem. at 8-10. 4 Under 28 U.S.C. § 1391(b), which generally

governs actions brought in federal district courts, a civil action may be brought in any judicial

district (1) “in which any defendant resides, if all defendants are residents of the State in which

the district is located”; (2) “in which a substantial part of the events or omissions giving rise to

the claim occurred, or a substantial part of property that is the subject of the action is situated”;

or (3) “if there is no district in which an action may otherwise be brought as provided in this

section, any judicial district in which any defendant is subject to the court’s personal jurisdiction

with respect to such action.” 28 U.S.C. § 1391(b)(1)-(3) (2012). As the defendants argue and

the plaintiff does not contest, see Priority’s Mem. at 5; Citi Inc.’s Mem. at 8-10; Pls.’ Priority

Opp’n at 5; Pls.’ Combined Opp’n at 5, none of the provisions of § 1391(b) authorize venue in

this District because: (1) none of the defendants reside in the District of Columbia; (2) all of the

acts or omissions giving rise to the plaintiffs’ claims took place in California; and (3) there is a

judicial district in which venue would be proper under § 1391(b)(2), namely a district in

California.

The plaintiffs nonetheless argue that venue is proper in the District of Columbia because

of a consent decree entered in United States v. Bank of America, Civ. No. 12-361. See Pls.’

Priority Opp’n at 3; Pls.’ Combined Opp’n at 3. But defendant Priority Posting and Publishing,

Inc. notes that “[t]he [p]laintiffs’ [c]omplaint is a near verbatim copy (save only for changes to

4
Most of the defendants joined defendant CitiMortgage, Inc.’s Motion to Dismiss. See generally McCarthy’s Mot.;
McCarthy’s Mem.; Citi LLC’s Mot.; Citi LLC’s Mem. The Court will therefore refer generally to CitiMortgage,
Inc.’s motion and memorandum of law throughout this opinion.

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party names and addresses) of the [c]omplaint filed by pro se [p]laintiff Vesko Borislavov

Ananiev in this Court in December 2012,” which “also involv[ed] the foreclosure of a California

home [and] was dismissed on September 13, 2013 by Judge Howell of this Court” for improper

venue and lack of standing. Priority’s Mem. at 2 (citing Ananiev v. Wells Fargo Bank, NA, 968

F. Supp. 2d 123 (D.D.C. 2013)). The Court’s review of the plaintiffs’ complaint and the

complaint in Ananiev confirms that defendant Priority is correct that the two complaints are

substantially similar. Compare Compl., with Complaint, Ananiev v. Wells Fargo Bank, NA,

Civ. No. 12-1804 (D.D.C., filed Nov. 2, 2012). Accordingly, the Court finds Judge Howell’s

analysis instructive.

In Ananiev, Judge Howell found that the consent decree 5 entered in United States v.

Bank of America, Civ. No. 12-361,

provides that the “Servicer’s obligations under this Consent Judgment shall be
enforceable solely in the U.S. District Court for the District of Columbia,” but that
enforcement actions under the Consent Judgment may only “be brought by any
Party to this Consent Judgment or the Monitoring Committee.” Unrelated
Consent Judgment, Ex. E. at E-14-15. The Unrelated Consent Judgment simply
does not create a private right of action allowing third parties, such as the
plaintiff, to bring claims for alleged violations of the Judgments, let alone
unrelated claims in this jurisdiction. Accord Beckett v. Air Line Pilots Ass’n, 995
F.2d 280, 288 (D.C. Cir. 1993) (“Only the Government can seek enforcement of
its consent [judgments] . . . therefore, even if the Government intended its consent
[judgment] to benefit a third party, that party could not enforce it unless the
[judgment] so provided.”); Rafferty v. NYNEX Corp., 60 F.3d 844, 849 (D.C.
Cir. 1995) (“Unless a government consent [judgment] stipulates that it may be
enforced by a third party beneficiary, only the parties to the [judgment] can seek
enforcement of it.”).

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Although Judge Howell addressed the consent decree entered in United States v. Bank of America, Civ. No. 12-
361, involving Wells Fargo Bank, NA, that consent decree is identical in relevant part to the consent decree entered
in that same case and involving CitiMortgage, Inc. Compare ECF No. 14, United States v. Bank of Am., Civ. No.
12-361 (D.D.C. Apr. 4, 2012) (Wells Fargo Bank, NA consent decree), with ECF No. 12, United States v. Bank of
Am., Civ. No. 12-361 (D.D.C. Apr. 4, 2012) (CitiMortgage, Inc. consent decree). Indeed, numerous nearly identical
consent decrees were entered in that same case.

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968 F. Supp. 2d at 131-32. Here, as in Ananiev, “the plaintiff[s] [were] not . . . part[ies] to the”

consent decree entered in United States v. Bank of America, Civ. No. 12-361, “and [are]

therefore, . . . third part[ies] without any standing to enforce its terms.” Id. at 132. Accordingly,

the consent decree is an improper basis for venue in this Court. Because the plaintiffs’ complaint

does not satisfy the requirements of 28 U.S.C. § 1391(b), and because the consent decree does

not provide a basis for venue in this district, the Court finds that the District of Columbia is an

improper venue for the plaintiffs’ complaint.

B. Whether Transfer is Appropriate

The Court’s venue conclusion does not end the Court’s inquiry, however. Under 28

U.S.C. § 1406, a district court which finds that plaintiffs have filed a case in the wrong venue

“shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in

which it could have been brought.” 28 U.S.C. § 1406(a) (2012). The decision whether to

transfer or dismiss a case is committed to the discretion of the district court where a suit was

improperly filed. Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983).

Although a district court may dismiss a case if the plaintiffs’ claims suffer from obvious

substantive defects, see Buchanan v. Manley, 145 F.3d 386, 389 n.6 (D.C. Cir. 1998); Naartex

Consulting Corp., 722 F.2d at 789, the interest of justice generally favors transferring a case,

particularly when a plaintiff is proceeding pro se, James v. Verizon Servs. Corp., 639 F. Supp. 2d

9, 15 (D.D.C. 2009).

The plaintiffs’ remaining claims include allegations concerning the alleged foreclosure on

their home, violations of the Fair Debt Collection Practices Act, the Rosenthal Act, and 42

U.S.C. §§ 1983, 1985, and 1986, fraud, intentional infliction of emotional distress, and

9
deprivation of their due process rights. As discussed below, each of these claims suffer serious

substantive problems.

1. The Plaintiffs’ Claims Relating to the Foreclosure on Their Home

Defendant Priority asserts that the plaintiffs have no standing to pursue claims relating to

the foreclosure on their home because “they have not suffered an injury in fact because their

house has not yet been sold.” Priority’s Reply at 3.

“Because Article III limits the constitutional role of the federal judiciary to resolving

cases and controversies, a showing of standing ‘is an essential and unchanging’ predicate to any

exercise of [federal] jurisdiction.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir.

1996) (en banc) (citation omitted) (quoting Lujan, 504 U.S. at 560). “[T]o satisfy Article III’s

standing requirements, . . . [the] plaintiff[s] must show [that] (1) [they have] suffered an ‘injury

in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or

hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it

is likely, as opposed to merely speculative, that the injury will be redressed by a favorable

decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81

(2000) (quoting Lujan, 504 U.S. at 560-61).

Here, contrary to what is suggested in at least some parts of their complaint, the plaintiffs

in their opposition to defendant Priority’s motion to dismiss state that their “home has not been

sold” and “no foreclosure sale was effectuated.” Compare, e.g., Compl. ¶ 85 (discussing the

alleged invalidity of “[t]he foreclosure actions taken by the [d]efendants”), with Pls.’ Priority

Opp’n at 2 (“[N]o foreclosure sale was effectuated.”). The plaintiffs have conceded that they

have suffered no injury in fact, and therefore they have no standing to seek relief from this Court

on the basis of the foreclosure on their home.

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 2. The Plaintiffs’ Fair Debt Collection Practices Act and Rosenthal Act
Claims

The defendants argue that the plaintiffs have failed to state a claim under the Fair Debt

Collection Practices Act. See Citi Inc.’s Mem. at 12. “The Fair Debt Collection Practices Act . .

. imposes civil liability on debt collector[s] for certain prohibited debt collection practices.”

Jerman v. Carlisle, 559 U.S. 573, 576 (2010) (citations omitted). Under the Act, “[a] ‘debt

collector’ is any person in any business ‘the principal purpose of which is the collection of any

debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due

asserted to be owed or due another.’” Hardy v. N. Leasing Sys., Inc., 953 F. Supp. 2d 150, 159-

60 (D.D.C. 2013) (citing 15 U.S.C. § 1692a(6)). “Excluded from the [Act’s] coverage is activity

that ‘concerns a debt obtained by such person as a secured party in a commercial credit

transaction involving the creditor.’” Id. (citing 15 U.S.C. § 1692a(6)(F)(iv)). Moreover, “the

law is well-settled . . . that creditors, mortgagors, and mortgage servicing companies are not debt

collectors and are statutorily exempt from liability under the [Fair Debt Collection Practices

Act].” Scott v. Wells Fargo Home Mortg. Inc., 326 F. Supp. 2d 709, 718 (E.D. Va. 2003), aff’d,

67 F. App’x 238, 238 (4th Cir. 2003). Additionally, “[t]he legislative history of section 1692a(6)

[of the Fair Debt Collection Practices Act] indicates conclusively that a debt collector does not

include the consumer’s creditors, a mortgage servicing company, or an assignee of a debt, as

long as the debt was not in default at the time it was assigned.” Perry v. Steward Title Co., 756

F.2d 1197, 1208 (5th Cir. 1985), modified on other grounds, 761 F.2d 237 (5th Cir. 1985). The

Rosenthal Act similarly defines “debt collector,” Cal. Civ. Code §§ 1788.2(c), and “foreclosure

pursuant to a deed of trust does not constitute debt collection under [that] [Act],” Gardner v. Am.

Home Mortg. Servicing, Inc., 691 F. Supp. 2d 1192, 1198 (E.D. Cal. 2010) (citing cases).

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 The plaintiffs’ claims of improper debt collection practices all relate to the purported

attempt to foreclose on their home in California. These claims, however, are not cognizable

under either the Fair Debt Collection Practices Act or the Rosenthal Act, because none of the

defendants are “debt collectors” as defined by those Acts. The complaint instead names

defendants who are companies and banks servicing the plaintiffs’ mortgage, and the documents

attached to the plaintiffs’ complaint indicate that the assignment of the debts associated with

their mortgage were all made prior to the purported attempt to foreclose on their home. Compare

Compl., Exs. 2 (Deed of Trust), 3 (Assignment of Deed of Trust), 10 (Substitution of Trustee),

with Compl., Ex. 13 (Notice of Default). Moreover, the complaint contains no allegations that

the law firm or individuals named as defendants are involved in “any business ‘the principal

purpose of which is the collection of any debts, or who regularly collects or attempts to collect,

directly or indirectly, debts owed or due asserted to be owed or due another.’” Hardy, 953 F.

Supp. 2d at 159-60 (citation omitted). The plaintiffs have thus failed to state a claim under either

the Fair Debt Collection Practices Act or the Rosenthal Act, and the Court must therefore dismiss

both of these claims.

3. The Plaintiffs’ Additional Fraud Claims

To the extent the plaintiffs intend to assert fraud claims independent from their claims

under the Fair Debt Collection Practices Act and the Rosenthal Act, see, e.g., Compl. ¶¶ 68-70,

they have failed to state a claim under either the law of California or the District of Columbia.

Under California law, “[t]he elements of fraud are (1) misrepresentation, (2) knowledge of

falsity, (3) intent to induce reliance on the misrepresentation, (4) justifiable reliance on the

misrepresentation, and (5) resulting damages.” Cansino v. Bank of Am., 224 Cal. App. 4th

1462, 1469 (2014). The law of the District of Columbia is similar. See Drake v. McNair, 993

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A.2d 607, 622 (D.C. 2010) (“At common law, the requisite elements of fraud were (1) a false

representation (2) made in reference to a material fact, (3) with knowledge of its falsity, (4) with

the intent to deceive, and (5) an action that is taken in reliance upon the representation.” (citation

and internal quotation marks omitted)). The plaintiffs do not claim that they relied on any of the

alleged misrepresentations, and this alone defeats any claim of fraud being asserted by them.

Accordingly, they have failed to state a claim for fraud under the law of either jurisdiction.

4. The Plaintiffs’ Intentional Infliction of Emotional Distress Claims

The defendants argue that the plaintiffs have failed to state a claim for intentional

infliction of emotional distress. See Citi Inc.’s Mem. at 15-16. Neither the plaintiffs nor the

defendants discuss whether the law of the District of Columbia or California should apply to the

plaintiffs’ tort claims. However, regardless of which law applies, the outcome is the same. “In

order to establish a prima facie case of intentional infliction of emotional distress” under District

of Columbia law, “a plaintiff must show (1) extreme and outrageous conduct on the part of the

defendants, which (2) intentionally or recklessly (3) causes the plaintiff severe emotional

distress.” Williams v. District of Columbia, 9 A.3d 484, 493-94 (D.C. 2010) (internal quotation

marks omitted). As to the first element, the plaintiff must establish that the defendants’ conduct

was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds

of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

Joyner v. Sibley Mem’l Hosp., 826 A.2d 362, 373 (D.C. 2003) (citation omitted). And under

California law, claims of intentional infliction of emotional distress are insufficient as a matter of

law where the plaintiffs “have not pled any allegations of conduct by the defendants that could

be considered ‘outrageous.’” Wilson v. Hynek, 207 Cal. App. 4th 999, 1009 (2012). Indeed, “a

creditor/debtor situation, whereby the defendants were exercising their rights under the loan

13
agreements” and where “[t]here are no allegations that in conducting the foreclosure proceedings

any of the defendants threatened, insulted, abused, or humiliated” the plaintiffs does not rise to

the level of intentional infliction of emotional distress. Id.

Here, the plaintiffs’ complaint includes no allegations that any of the defendants, “in

conducting the [alleged] foreclosure proceedings . . . threatened, insulted, abused, or humiliated”

the plaintiffs. Id. And foreclosure proceedings, while undoubtedly unpleasant, are not

uncommon and cannot because of the process alone “be regarded as atrocious [or] utterly

intolerable in a civilized community.” Joyner, 826 A.2d at 373. The Court thus finds that the

plaintiffs have failed to state a cause of action for intentional infliction of emotional distress.

5. The Plaintiffs’ Due Process Claims

This Circuit has held that “private citizens, acting in their private capacities, cannot be

guilty of violating due process rights,” Canadian Transp. Co. v. United States, 663 F.2d 1081,

1093 (D.C. Cir. 1980), and “the same is true with respect to the corresponding procedural due

process provision of the California Constitution,” Kim v. Orellana, 145 Cal. App. 3d 1024, 1027

(1983). Here, each of the defendants named in the plaintiffs’ complaint is a private actor, and the

plaintiffs have not alleged that the defendants were not acting in their private capacities. The

plaintiffs have thus failed to state a claim under the due process provisions of either the United

States or California Constitution.

6. The Plaintiffs’ Claims Under 42 U.S.C. §§ 1983, 1985, and 1986

The defendants argue that the plaintiffs have failed to state a claim under 42 U.S.C. §§

1983, 1985, or 1986. Citi Inc.’s Mem. at 13-15. “To state a claim under § 1983, a plaintiff must

allege the violation of a right secured by the Constitution and laws of the United States, and must

show that the alleged deprivation was committed by a person acting under color of state law.”

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West v. Atkins, 487 U.S. 42, 48 (1988). As discussed above, none of the defendants are state

actors, and the plaintiffs have not alleged that they were acting under color of state law, and have

thus failed to state a § 1983 claim.

As to claims under § 1985, the plaintiffs must allege:

(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws, . . . and (3) an act in
furtherance of the conspiracy; (4) whereby a person is either injured in her person
or property or deprived of any right or privilege of a citizen of the United States.
The statute “does not apply to all conspiratorial tortious interferences with the
rights of others, but only those motivated by some class-based, invidiously
discriminatory animus.”

Martin v. Malhoyt, 830 F.2d 237, 258 (D.C. Cir. 1987) (citations omitted). The plaintiffs here do

not allege that any of the defendants actions were “motivated by some class-based, invidiously

discriminatory animus,” id., and have thus failed to state a claim under § 1985. Moreover,

because § 1986 claims are predicated on the existence of § 1985 claims, see Herbin v. Hoeffel,

No. 99-7244, 2000 WL 621304, at *1 (D.C. Cir. 2000) (“Because appellant did not state a claim

under 42 U.S.C. § 1985(3), there is no basis for relief under 42 U.S.C. § 1986.”) (citing Dowsey

v. Wilkins, 467 F.2d 1022, 1026 (5th Cir. 1972)), the plaintiffs have also failed to state a § 1986

claim.

IV. CONCLUSION

As discussed above, the plaintiffs’ complaint suffers from numerous substantive

deficiencies. Additionally, as also discussed above, the plaintiffs’ complaint is substantially

similar and in some places identical to the plaintiff’s complaint in Ananiev. The Court therefore

concludes that transferring this case would not be in the interests of justice, and that dismissal is

appropriate. See Ananiev, 968 F. Supp. 2d at 132-34 (dismissing pro se plaintiff’s complaint

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where plaintiff’s claims suffered from substantive defects). Accordingly, the Court is compelled

to dismiss the plaintiffs’ complaint rather than transferring it to a district in California. 6

SO ORDERED this 29th day of May, 2014.

REGGIE B. WALTON
United States District Judge

6
An order consistent with this memorandum opinion will be issued contemporaneously.

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