Phillips v. Bank of New York Mellon

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

__________________________________________
:
VINCENT PHILLIPS, :
:
Plaintiff, :
v. :
: Civil Action No. 1:20-CV-968 (ABJ)
THE BANK OF NEW YORK MELLON, :
AS TRUSTEE FOR THE BEAR STEARNS :
ASSET BACKED SECURITIES TRUST 2002-2, :
ASSET BACKED CERTIFICATES, :
SERIES 2002-2, :
:
Defendant. :
_________________________________________ :

MEMORANDUM OPINION

This matter is before the Court on defendant’s motion to dismiss the complaint (ECF No.

6). For the reasons discussed below, the motion will be GRANTED.

I. FACTUAL BACKGROUND

Vincent Phillips (“plaintiff”) is the owner of real property in the District of Columbia at

427 Mellon Street, S.E., Washington, DC 20032 (“the Property”). Verified Complaint (ECF No.

1, “Compl.”) ¶ 7. The complaint does not identify the lender or mortgagee that was involved when

he purchased the Property.

Plaintiff describes defendant, The Bank of New York Mellon as Trustee for the Bear

Stearns Asset Backed Securities Trust 2002-2, Asset Backed Certificates, Series 2002-2

(“defendant”) as “a diversified financial marketing and/or services corporation[] engaged

primarily in residential mortgage banking and/or related businesses.” Compl. ¶ 7. He alleges that

defendant pooled mortgages including the mortgage on the Property, securitized these pools of

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mortgages, and sold these mortgage-backed securities to investors. See id. ¶ 9. He further alleges

that defendant engaged in these activities without having “follow[ed] the basic requirements for

the transfer of . . . negotiable instrument[s] and . . . interest[s] in real property.” Id. ¶ 10.

According to plaintiff, “no interest in the Mortgage Note, Deed of Trust or Property was

ever legally transferred to . . . [d]efendant.” Id. ¶ 11. Nevertheless, on November 19, 2015,

defendant filed suit in the Superior Court of the District of Columbia (“Foreclosure Action”) to

foreclose on the Property. See id. ¶ 12; see generally Def.’s Mem., Ex. 2 (Docket, The Bank of

New York Mellon v. Phillips, No. 2015 CA 009003 R(RP) (D.C. Super. Ct. Nov. 19, 2015)). 1 In

its motion to dismiss, defendant represents that it holds the first priority mortgage on the Property.

Mem. of P. & A. in Support of Def.’s Mot. to Dismiss Compl. (ECF No. 6-1, “Def.’s Mem.”) at

1.

On August 31, 2018, the Superior Court issued an Order granting defendant’s motion for

default judgment, and the Property was sold to a third party at auction on July 18, 2019. See Def.’s

Mem., Ex. 2 at 5; see id., Ex. 3 (Order Granting Plaintiff’s Motion for Default Judgment and

Decree for Sale of Real Property, The Bank of New York Mellon v. Phillips, No. 2015 CA 009003

R(RP) (D.C. Super. Ct. Aug. 31, 2018)). On April 9, 2020, the Superior Court ratified the

foreclosure sale. See id., Ex. 4 (Order Granting Motion to Ratify Foreclosure Sale and Granting

in Part Consent Motion to Intervene As Of Right for the Limited Purpose of Making a Claim to

1
The complaint attached as Exhibit 1 to defendant’s motion appears to be that of Wells Fargo
Bank, N.A. See generally Def.’s Mem., Ex. 1 (Complaint for Judicial Foreclosure Sale, Wells
Fargo Bank, N.A. v. Phillips, No. 2018 CA 000553 R (RP) (D.C. Super. Ct. Jan. 23, 2018)); see
id., Ex. 2 at 6-7. Wells Fargo had extended a Business Equity Line of Credit to plaintiff secured
by a Deed of Trust on the Property, and later intervened in the Foreclosure Action for the purpose
of claiming any surplus funds from the foreclosure sale. See id., Ex. 4 (Order Granting Motion to
Ratify Foreclosure Sale and Granting in Part Consent Motion to Intervene As Of Right for the
Limited Purpose of Making a Claim to Surplus Proceeds, The Bank of New York Mellon v. Phillips,
No. 2015 CA 009003 R(RP) (D.C. Super. Ct. Apr. 9, 2020)) at 8-9.
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Surplus Proceeds, The Bank of New York Mellon v. Phillips, No. 2015 CA 009003 R(RP) (D.C.

Super. Ct. Apr. 9, 2020)). Plaintiff timely filed an appeal. See generally id., Ex. 5 (Notice of

Appeal, The Bank of New York Mellon v. Phillips, No. 2015 CA 009003 R(RP) (D.C. Super. Ct.

Apr. 25, 2020)).

The District of Columbia Court of Appeals dismissed the appeal on October 7, 2020, see

id., Ex. 6 (Order, Phillips v. Bank of New York Mellon, No. 20-CV-432 (D.C. Ct. App. Oct. 7,

2020)), because plaintiff had not filed a statement regarding transcripts. See Pl.’s Opp’n to Def.’s

Mot. to Dismiss Compl. (ECF No. 8, “Pl.’s Opp’n”) ¶ 2. The appeal since has been reinstated.

See id.2

Plaintiff filed this lawsuit on April 9, 2020, and he brings three causes of action: wrongful

foreclosure, violations of the Fair Debt Collection Practices Act (“FDCPA”), see 15 U.S.C. § 1692

et seq., and negligence. See generally Compl. ¶¶ 14-15, 19-20, 24-25. He demands monetary

damages, see generally id. ¶¶ 16-17, 21-22, 25-26, and among other relief, plaintiff seeks an

injunction “preventing [d]efendant . . . from collecting on the subject loan and from causing the

Property to be sold, assigned or transferred to a third party.” Id. at 7 (page number designated by

CM/ECF) ¶ 3.

II. LEGAL STANDARDS

A. Federal Rule of Civil Procedure 12(b)(6)

A plaintiff need only provide a “short and plain statement of [his] claim showing that [he]

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 v. Pardus, 551 U.S. 89, 93 (2007) (quoting

2
The District of Columbia Court of Appeals granted plaintiff’s motion to reinstate the appeal on
January 25, 2021. See Phillips v. Bank of New York Mellon, No. 20-CV-432 (D.C. Ct. App. Jan.
25, 2021).
3
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)

(citation and internal quotation marks 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 conclusion

couched as a factual allegation,” or “naked assertions devoid of further factual enhancement.”

Iqbal, 556 U.S. at 678 (internal quotation marks omitted). “Threadbare recitals of the elements of

a cause of action, supported by mere conclusory statements,” are not sufficient to state a claim

either. Id.

Although a pro se complaint “must be held to less stringent standards than formal pleadings

drafted by lawyers,” Erickson, 551 U.S. at 94 (internal quotation marks and citation omitted), it

still “must plead ‘factual matter’ that permits the court to infer ‘more than the mere possibility of

[defendant’s] misconduct,’” Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672,

681-82 (D.C. Cir. 2009) (quoting Iqbal, 556 U.S. at 678-79); see, e.g., Budik v. Dartmouth-

Hitchcock Med. Ctr., 937 F. Supp. 2d 5, 11 (D.D.C. 2013) (“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.’”), aff’d, No. 13-5121, 2013 WL 6222951 (D.C. Cir. Nov. 19, 2013).

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 The Court may take judicial notice of matters of public record, such as the Superior Court

and Court of Appeals documents the parties have submitted or to which they refer, see Covad

Commc’ns Co. v. Bell Atlantic Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005), without converting

defendant’s motion to dismiss into a motion for summary judgment. See Asnake v. Deutsche Bank

Nat’l Tr. Co., 313 F. Supp. 3d 84, 86 (D.D.C. 2018).

B. Federal Rule of Civil Procedure 12(b)(1)

“Federal courts are courts of limited jurisdiction,” and the law presumes “that a cause lies

outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of

limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”).

Under Rule 12(b)(1), 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); Shekoyan v. Sibley Int’l

Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002), aff’d, 409 F.3d 414 (D.C. Cir. 2005), cert. denied,

546 U.S. 1173 (2006). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as well as a

statutory requirement . . . no action of the parties can confer subject-matter jurisdiction upon a

federal court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting

Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)). Subject

matter jurisdiction may not be waived, and “courts may raise the issue sua sponte.” NetworkIP,

LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008) (quoting Athens Cmty. Hosp., Inc. v. Schweiker,

686 F.2d 989, 992 (D.C. Cir. 1982)). Indeed, a federal court must raise the issue because it is

“forbidden . . . from acting beyond [its] authority, and ‘no action of the parties can confer subject-

matter jurisdiction upon a federal court.’” Id. (quoting Akinseye, 339 F.3d at 971).

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 When reviewing a challenge pursuant to Rule 12(b)(1), the Court may consider documents

outside the pleadings to assure itself that it has jurisdiction. See Land v. Dollar, 330 U.S. 731, 735

n.4 (1947); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) (holding same). By considering

documents outside the pleadings when reviewing a motion to dismiss pursuant to Rule 12(b)(1),

the Court does not convert the motion into one for summary judgment. See Haase, 835 F.2d at

905 (noting that “the plain language of Rule 12(b) permits only a 12(b)(6) motion to be converted

into a motion for summary judgment” when the Court considers documents extraneous to the

pleadings).

III. ANALYSIS3

A. Res Judicata

Defendant argues that the claims plaintiff raises here are barred under the doctrine of res

judicata. See Def.’s Mem. at 10-12.

“The preclusive effect of a judgment is defined by claim preclusion and issue preclusion,

which are collectively referred to as ‘res judicata.’” Taylor v. Sturgell, 553 U.S. 880, 892 (2008)

(footnote omitted). “[C]laim preclusion (sometimes itself called res judicata) . . . prevents parties

from raising issues that could have been raised and decided in a prior action – even if they were

not actually litigated.” Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 140 S. Ct.

1589, 1594 (2020). “If a later suit advances the same claim as an earlier suit between the same

parties, the earlier suit’s judgment prevents litigation of all grounds for, or defenses to, recovery

3
Defendant moved to dismiss under Federal Rule of Civil Procedure 12(b)(5) for lack of service
of process. See generally Def.’s Mem. at 5-7. It asserts that the persons whom the United States
Marshals Service attempted to serve, see Summons in a Civil Case (ECF Nos. 3, 5) were not
authorized to accept service of process on defendant’s behalf. See id. at 6; Reply ¶ 4.
Notwithstanding its “belie[f] the Complaint should be dismissed for failure to properly serve the
[d]efendant,” it has withdrawn this argument. Reply ¶ 4.
6
that were previously available to the parties, regardless of whether they were asserted or

determined in the prior proceeding.” Id. (citations and internal quotation marks omitted); see

Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981) (“The parties to a suit and their

privies are bound by a final judgment and may not relitigate any ground for relief which they

already have had an opportunity to litigate – even if they chose not to exploit that opportunity –

whether the initial judgment was erroneous or not.”); see also Ashbourne v. Hansberry, 894 F.3d

298, 302 (D.C. Cir. 2018) (describing res judicata as “an ancient legal doctrine that, in simple

terms, limits parties to one bite at the litigation apple”). No party can “escape application of the

doctrine by raising a different legal theory or seeking a different remedy in the new action that was

available to him in the prior action.” Thompson v. Washington Mut., 806 F. Supp. 2d 197, 200

(D.D.C. 2011) (citations omitted), aff’d sub nom. Thompson v. Washington Mut., Inc., 482 F.

App’x 595 (D.C. Cir. 2012).

“A subsequent lawsuit is barred by claim preclusion ‘if there has been prior litigation (1)

involving the same claims or cause of action, (2) between the same parties or their privies, and (3)

there has been a final, valid judgment on the merits, (4) by a court of competent jurisdiction.’”

Nat. Res. Def. Council v. EPA, 513 F.3d 257, 260 (D.C. Cir. 2008) (quoting Smalls v. United

States, 471 F.3d 186, 192 (D.C. Cir. 2006)). Two suits are based on the same claim or cause of

action if they “arise from the same transaction . . . or involve a common nucleus of operative facts.”

Lucky Brand Dungarees, 140 S. Ct. at 1595 (citations, internal quotation marks and brackets

omitted). “In pursuing this inquiry, the court will consider whether the facts are related in time,

space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment

as a unit conforms to the parties’ expectations or business understanding or usage.” Apotex, Inc.

7
v. Food & Drug Admin., 393 F.3d 210, 217 (D.C. Cir. 2004) (citations and internal quotation marks

omitted).

As plaintiff put it in his own complaint, “this action arises out of a loan and foreclosure

related activity to the Property,” Compl. ¶ 8, which began in November 2015 when defendant

initiated the Foreclosure Action in the Superior Court. Id. ¶ 12. Plaintiff expressly challenges

defendant’s right to foreclose, arguing that it has “no interest in the Mortgage Note, Deed of Trust

or Property[.]” Id. ¶ 11.

Defendant contends that the Foreclosure Action involves the same parties and claims as

those presented here, and that it culminated in a final judgment by the Superior Court in its favor.

See Def.’s Mem. at 11. Thus, defendant argues, plaintiff’s claims are barred under the doctrine

of res judicata. See id. Further, defendant notes that plaintiff has already had an opportunity to

litigate the legitimacy of the foreclosure sale and events leading to it, and therefore, plaintiff

“should not be allowed another bite at the apple to re-litigate these issues.” Id. at 12.4

Plaintiff responds that res judicata cannot bar his claims because the appeal before the

District of Columbia Court of Appeals has not yet concluded. Pl.’s Opp’n ¶ 2. But plaintiff is

incorrect as a matter of law, as the Superior Court’s final ruling has preclusive effect

notwithstanding an ongoing appeal before the District of Columbia Court of Appeals. See Martin

v. Malhoyt, 830 F.2d 237, 264 (D.C. Cir. 1987) (noting that “[t]he pendency of an appeal . . . does

not automatically diminish the preclusive effects of a prior adjudication”).

It is undisputable that this action involves the same parties that were involved in the

Foreclosure Action and that it arises from the same mortgage loan transaction and subsequent

4
Plaintiff apparently raised no issues at all in the Foreclosure Action. The Superior Court noted
that plaintiff had been served with process but did not answer the complaint or oppose defendant’s
motion for default judgment and decree for sale of the Property. See Def.’s Mem., Ex. 3 at 1.
8
foreclosure. And it is apparent that the Superior Court, a court of competent jurisdiction, has

concluded the Foreclosure Action with a ruling in defendant’s favor. Plaintiff’s claim here that

defendant had no authority to foreclose because it had not acquired an enforceable interest in the

Property amounts to nothing more than an attempt to re-litigate claims the Superior Court already

has resolved and the District of Columbia Court of Appeals is reviewing. Therefore, res judicata

bars the first cause of action in the complaint, the wrongful foreclosure claim, completely.

Moreover, to the extent the second cause of action under the FDCPA is predicated on “the

collection of a debt not owed to Defendant, . . . attempting to foreclose upon a void security

interest, foreclosing upon a Note of which they were not in possession nor otherwise entitled to

payment, [or] falsely stating the amount of the debt,” Compl. ¶ 20, those allegations were litigated

in the foreclosure action in Superior Court. Similarly, to the extent the negligence claim in the

third cause of action is based on defendant’s failure to maintain the original mortgage note, id. ¶

24, or taking payments and charging fees to which it was not entitled, id. ¶ 25, defendant’s

entitlement to enforce the loan was also litigated in the foreclosure action. Plaintiff cannot avoid

the effect of res judicata simply by re-casting his allegations as statutory or common law claims.

This leaves only those portions of the second and third causes of action alleging that defendant

made false or negative reports to credit agencies. See id. ¶¶ 20, 25. While the issues of the

existence of the debt and the amount owed were necessarily litigated in the foreclosure action and

therefore, there would be grounds to dismiss those issues and claims as precluded as well, there

are additional reasons why these causes of action must be dismissed.

As set forth in section B of this opinion below, it is appropriate for the Court to decline to

exercise jurisdiction as this dispute is already being appropriately litigated in the District of

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Columbia courts, and as set forth in section C, the complaint does not state a plausible cause of

action for wrongful foreclosure, under the FDCPA, or under principles of common law negligence.

B. Rooker-Feldman Doctrine

To the extent plaintiff challenges the Superior Court’s rulings in the Foreclosure Action,

defendant moves to dismiss pursuant to the Rooker-Feldman doctrine, see generally Def.’s Mem.

at 8-9, which “prevents lower federal courts from hearing cases that amount to the functional

equivalent of an appeal from a state court.” Gray v. Poole, 275 F.3d 1113, 1119 (D.C. Cir. 2002)

(citing District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983), and Rooker

v. Fidelity Trust Co., 263 U.S. 413, 416 (1923)). The doctrine pertains to this Court’s jurisdiction,

see Stanton v. District of Columbia Court of Appeals, 127 F.3d 72, 75 (D.C. Cir. 1997), and “is

confined to cases . . . brought by state-court losers complaining of injuries caused by state-court

judgments rendered before the district court proceedings commenced and inviting district court

review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544

U.S. 280, 284 (2005). If, however, “a federal plaintiff presents some independent claim, albeit

one that denies a legal conclusion that a state court has reached in a case to which he was a party,

then there is jurisdiction and state law determines whether the defendant prevails under principles

of preclusion.” Id. at 293 (citations, internal quotation marks, brackets and ellipses omitted). “A

claim is ‘independent’ from a state court judgment if it seeks redress for injuries that are not

directly attributable to that judgment or if the ‘core’ of the claim is independent of the judgment.”

Hunter v. United States Bank Nat’l Ass’n, 698 F. Supp. 2d 94, 99 (D.D.C. 2010) (citing Stanton,

127 F.3d at 75-76) (additional citation omitted).

Defendant argues that “[p]laintiff raised no independent claim” in this action “and instead

raises claims falling squarely within the confines of the [Rooker-Feldman] doctrine.” Def.’s Mem.

10
at 9. He “lost when the Superior Court entered the . . . Order” ratifying the foreclosure sale of the

Property, and, defendant argues, this Court may not engage in the equivalent of appellate review

of the Superior Court’s decision. Id. Plaintiff responds that the Rooker-Feldman doctrine does

not apply “because the federal issues raised were not put before the [District of Columbia] Court.”

Pl.’s Opp’n ¶ 3. His opposition does not specify the “federal issues” involved, however.

If this Court were to rule in plaintiff’s favor and to grant the relief he requests, particularly

injunctive relief “preventing [d]efendant . . . from collecting on the subject loan and from causing

the Property to be sold, assigned or transferred to a third party,” Compl. at 7, this Court, in essence,

would be reviewing and reversing a Superior Court decision. This is exactly the type of judicial

action the Rooker-Feldman doctrine was designed to prevent. See, e.g., Owens v. Bank of Am.,

No. 17-CV-2110, 2018 U.S. Dist. LEXIS 156710, at *27 (D.D.C. Sep. 13, 2018) (concluding that

Rooker-Feldman doctrine bars claims brought by “the sole defendant in the Superior Court

foreclosure case [who] lost when the Superior Court ratified the foreclosure sale” and who “seeks

relief designed to invalidate the Superior Court’s judgment”); Glaviano v. JP Morgan Chase Bank,

N.A., No. 13-CV-2049, 2013 U.S. Dist. LEXIS 180582, at *3 (D.D.C. Dec. 27, 2013) (invoking

Rooker-Feldman abstention doctrine in declining “to hear what amounts to the Plaintiffs’

challenge to decisions of California state courts” on foreclosure sale of property); see also

Harbison v. United States Senate Comm., 839 F. Supp. 2d 99, 110 (D.D.C. 2012) (concluding that

claims “based on [plaintiff’s] frustration at the Virginia state judiciary for their decisions during

his divorce proceedings and his subsequent indictment for unlawful marriage and bigamy” are

matters “[t]he Rooker-Feldman doctrine prevents this Court from reviewing”).

Finally, the Court concludes that plaintiff has failed to state a claim for purposes of Rule

12(b)(6) in any event.

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 C. Failure to State Claims Upon Which Relief Can Be Granted

1. Wrongful Foreclosure

Plaintiff cites a District of Columbia Code provision which identifies the persons entitled

to enforce a security interest. See Compl. ¶ 14. His reference to “DC Commercial Code § 8.3A-

301,” id., presumably is a reference to the following provision:

“Person entitled to enforce” an instrument means (i) the holder of
the instrument, (ii) a nonholder in possession of the instrument who
has the rights of a holder, or (iii) a person not in possession of the
instrument who is entitled to enforce the instrument pursuant to
section 28:3-309 or 28:3-418(d).
D.C. Code § 28:3-301. According to plaintiff, defendant is neither the holder, beneficiary nor

assignee of the underlying Note, and, therefore, is not entitled to enforce it. Compl. ¶ 14.

Nevertheless, plaintiff alleges, defendant “failed to suspend the [F]oreclosure [A]ction to allow

[him] to be considered for alternative foreclosure prevention options.” Id. ¶ 15. Plaintiff claims

to have suffered monetary damages and emotional distress as a result. Id. ¶ 16.

“[A]n action for wrongful for improper foreclosure may lie where the property owner

sustains damages by reason of a foreclosure executed in a manner contrary to law.” Johnson v.

Fairfax Village Condo. IV Unit Owners Ass’n, 641 A.2d 495, 505 (D.C. 1994). “To state a claim

for wrongful foreclosure, the plaintiff must allege sufficient facts to state a plausible claim that he

sustain[ed] damages by reason of a foreclosure executed in a manner contrary to law.” Tefera v.

OneWest Bank, FSB, 19 F. Supp. 3d 215, 222 (D.D.C. 2014) (citations and internal quotation

marks omitted), appeal dismissed, No. 14-7039 (D.C. Cir. Sept. 16, 2015).

The Superior Court’s Order Granting Plaintiff’s Motion for Default Judgment and Decree

for Sale of Real Property, see Def.’s Mem., Ex. 3 at 2, makes clear that the Foreclosure Action is

a judicial foreclosure. Under District of Columbia law:

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 [The Superior Court] shall have authority . . . to order and decree
that said property be sold and the proceeds be brought into court to
be applied to the payment of the debt secured by said mortgage; and
if, upon a sale of the whole mortgaged property, the net proceeds
shall be insufficient to pay the mortgage debt, the court may enter a
decree in personam against the mortgagor or other party to the suit
who is liable for the payment of the mortgage debt for the residue of
said debt remaining unsatisfied after applying to said debt the
proceeds of such sale[.]
D.C. Code § 42-816.

Missing from plaintiff’s complaint are any factual allegations that judicial foreclosure of

the Property and its sale to a third party, which the Superior Court already has ratified, occurred in

a manner contrary to law. See Jackson v. ASA Holdings, LLC, 751 F. Supp. 2d 91, 101 (D.D.C.

2010) (concluding that, absent allegations that defendants violated some provision of District of

Columbia law, “conclusory allegation that Defendants wrongfully foreclosed is totally inadequate

to state a claim for wrongful foreclosure”). To the extent plaintiff can identify any legal flaws in

the Foreclosure Action, that question properly is pending review by the District of Columbia Court

of Appeals.

2. Fair Debt Collection Practices Act

The FDCPA “imposes civil liability on debt collectors for certain prohibited debt collection

practices.” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 576 (2010)

(brackets and internal quotation marks omitted). Generally, “[a] debt collector may not engage in

any conduct the natural consequence of which is to harass, oppress, or abuse any person in

connection with the collection of a debt.” 15 U.S.C. § 1692d. For example, a debt collector may

not threaten violence, 15 U.S.C. § 1692d(1), use obscene language, 15 U.S.C. § 1692d(2), or

“caus[e] a telephone to ring or engag[e] any person in telephone conversation repeatedly or

continuously with intent to annoy, abuse, or harass any person at the called number.” 15 U.S.C. §

1692d(5).

13
 The FDCPA defines the term “debt collector” as “any person who uses any instrumentality

of interstate commerce or the mails 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 or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). “[C]reditors, 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) (emphasis removed), aff’d, 67 F. App’x 238, 238 (4th Cir.

2003); Avila v. CitiMortgage, Inc., 45 F. Supp. 3d 110, 120 (D.D.C. 2014) (concluding that

plaintiffs’ claims of improper debt collection practices pertaining to foreclosure on their residence

“are not cognizable under . . . the [FDCPA] . . . because none of the defendants [is a] ‘debt

collector[]’ as defined by” the FDCPA”). Defendant identifies itself as the holder of the first

primary mortgage on the Property, see Def.’s Mem. at 1, suggesting that it is not a debt collector

to which the FDCPA applies.

Still, defendant moves to dismiss on the specific ground that plaintiff’s complaint fails to

allege facts to support a claim under the FDCPA. See Def.’s Mem. at 12-13. It directs the Court’s

attention to the following paragraph of the complaint:

It is an undisputed fact that Defendant’s actions constitute a
violation of the FDCPA in that they threatened to take actions not
permitted by law, including but not limited to: collection on a debt
not owed to Defendant, making false reports to credit reporting
agencies, attempting to foreclose upon a void security interest,
foreclosing upon a Note of which they were not in possession nor
otherwise entitled to payment, falsely stating the amount of a debt,
increasing the amount of a debt, increasing the amount of a debt by
including amounts that are not permitted by law or contract, and
using unfair and unconscionable means in an attempt to collect a
debt.
Compl. ¶ 20. Defendant deems this language “nothing more than a list of general types of acts

that if alleged could constitute violations of the FDCPA.” Def.’s Mem. at 13. This “mere list of

14
the elements of a potential FDCPA claim . . . does not contain any facts specific to [plaintiff[], his

mortgage loan, or the Property that would constitute a valid cause of action against the

[d]efendant.” Id.

Plaintiff responds that “[s]pecific acts not need to be pled under the statute pursuant to

Federal Rule of Civil Procedure 9.” Pl.’s Opp’n ¶ 7. The relevance of Federal Rule of Civil

Procedure 9 in the context of this case is unclear. Plaintiff, for example, does not raise a fraud

claim, which would require that he “state with particularity the circumstances constituting fraud[.]”

Fed. R. Civ. P. 9(b). Even applying a lenient pleading standard to a pro se complaint, plaintiff

“must plead factual matter that permits the court to infer more than the mere possibility of

[defendant’s] misconduct.” Atherton, 567 F.3d at 681-82 (citation and internal quotation marks

omitted). The vague and conclusory assertions of this complaint fail to articulate an FDCPA claim

against defendant, see Rivera v. Rosenberg & Assocs., LLC, 142 F. Supp. 3d 149, 159 (D.D.C.

2015) (finding that plaintiff failed to state plausible FDCPA claim where amended complaint failed

to identify which specific provisions of the FDCPA on which claims were based), assuming that

the FDCPA even applies here.

3. Negligence

Plaintiff alleges that defendant “breached its duty of care . . . when it failed to maintain the

original Mortgage Note, failed to properly create original documents, and failed to make . . .

required disclosures” to him. Compl. ¶ 24. In addition, plaintiff alleges further breaches when

defendant accepted “payments to which [it was] not entitled, charged fees [it was] not entitled to

charge, and made or otherwise authorized negative reporting of [p]laintiff’s creditworthiness to

various credit bureaus wrongfully.” Id. ¶ 25. Consequently, plaintiff alleges, he “suffered and

continues to suffer harm” for which he is entitled to damages. Id. ¶ 26.

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 Defendant argues that the complaint fails to state a negligence claim for two reasons. See

generally Def.’s Mem. at 14-16. It posits that the relationship between a debtor and creditor

ordinarily is a contractual relationship. See id. at 15. Because plaintiff’s negligence claim cannot

stand independently as if there were no contractual relationship, the negligence claim must be

dismissed. See id. at 14. Second, defendant argues that it owed no duty of care to plaintiff, given

the ordinary contractual relationship between the parties. See id. at 15. Plaintiff does not address

these arguments in his opposition.

“To establish a negligence claim, a plaintiff must show ‘(1) a duty, owed by the defendant

to the plaintiff, to conform to a certain standard of care; (2) a breach of this duty by the defendant;

and (3) an injury to the plaintiff proximately caused by the defendant’s breach.’” Findlay v.

CitiMortgage, Inc., 813 F. Supp. 2d 108, 120 (D.D.C. 2011) (quoting District of Columbia v.

Fowler, 497 A.2d 456, 463 n.13 (D.C. 1985)). The tort of negligence must stand on its own,

“independent of the contract, and any duty upon which the tort is based must flow from

considerations other than the contractual relationship,” Carter v. Bank of Am., N.A., 888 F. Supp.

2d 1, 15 (D.D.C. 2012) (citations omitted), and “[t]he relationship between a debtor and creditor

is ordinarily a contractual one, lacking any fiduciary duties.” Findlay, 813 F. Supp. 2d at 120

(citing Geiger v. Crestar Bank, 778 A.2d 1085, 1091 (D.C. 2001)). However, if there are alleged

to be assurances or promises beyond the written contractual agreements, a defendant might be held

liable for negligence. See id. (referring to case law supporting “the proposition that a lender

undertakes a duty to a borrower when its employees make certain assurances to the borrower

during the loan negotiation process”). No such circumstances are alleged here, so the complaint

fails to state a negligence claim. Moreover, plaintiff’s negligence claim – defendant negligently

enforced a mortgage without the authority to do so – is in essence the same as his wrongful

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foreclosure claim, and that claim, as noted above, is barred by res judicata and is the subject of

proceedings before the District of Columbia courts to which this Court should defer.

4. TILA and RESPA

In his complaint, plaintiff mentions the Truth in Lending Act (“TILA”), see 15 U.S.C. §

1601 et seq., and the Real Estate Settlement Procedures Act (“RESPA”), see 12 U.S.C. § 2601, et

seq. in passing, see Compl. ¶ 1. He also mentions Regulation Z, see 12 C.F.R. part 226, described

as TILA’s implementing regulation, see Bopp v. Wells Fargo Bank, N.A., 740 F. Supp. 2d 12, 14

(D.D.C. 2010). If it is plaintiff’s intention to predicate additional claims on these sources, those

claims also fail.

Generally, TILA requires “accurate and meaningful disclosure of material terms to

consumers in credit transactions.” Solomon v. Falcone, 791 F. Supp. 2d 184, 188 (D.D.C. 2011)

(citing 15 U.S.C. § 1601). “Material terms” include “the annual percentage rate, the method of

determining the finance charge and the balance upon which a finance charge will be imposed, the

amount of the finance charge, the amount to be financed, the total of payments, the number and

amount of payments, the due dates or periods of payments scheduled to repay the indebtedness,

and [other] disclosures[.]” 15 U.S.C. § 1602(v).

“To state a claim under TILA, a plaintiff must show either that [he] did not receive the

required disclosures or that the disclosures provided were not clear and conspicuous.” Thompson

v. HSBC Bank USA, N.A., 850 F. Supp. 2d 269, 276 (D.D.C. 2012) (internal quotation marks and

citations omitted). There are no such allegations in the complaint, and plaintiff’s TILA claim must

fail. See Travers v. Wells Fargo Bank, No. 09-CV-1061, 2010 U.S. Dist. LEXIS 162843, at *4

(D.D.C. May 5, 2010) (dismissing TILA claim where plaintiff “does not offer a single citation to

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TILA or Regulation Z,” and offers no “specifics on how the disclosures were incomplete,

misleading, or difficult to understand”).

RESPA is designed “to insure that consumers . . . are provided with greater and more timely

information on the nature and costs of the [real estate] settlement process” and to protect them

“from unnecessarily high settlement charges caused by certain abusive practices.” Peek v. Suntrust

Bank, Inc., No. 19-CV-0658, 2020 U.S. Dist. LEXIS 52270, at *7-8 (D.D.C. Mar. 24, 2020) (citing

12 U.S.C. § 2601(a)). The complaint is devoid of allegations to support a RESPA claim. A bare

allegation that a defendant breached its duties under RESPA “is not enough,” as “[a] plaintiff must,

at a minimum, allege that the breach resulted in actual damages.” Conant v. Wells Fargo Bank,

N.A., 60 F. Supp. 3d 99, 115 (D.D.C. 2014) (citing Banh v. Aurora Loan Servs., LLC, No. 11-CV-

6365, 2012 U.S. Dist. LEXIS 82775, at *3 (N.D. Cal. June 14, 2012)).

IV. CONCLUSION

The Court concludes that the doctrine of res judicata bars plaintiff’s claims, and even if the

claims were not barred, the Court declines to entertain them under the Rooker-Feldman doctrine.

In addition, the Court concludes that the complaint fails to state claims of wrongful foreclosure,

negligence, or violations of FDCPA, TILA, or RESPA. Accordingly, defendant’s motion to

dismiss will be granted. An Order is issued separately.

DATE: September 15, 2021 /s/
AMY BERMAN JACKSON
United States District Judge

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