Avila v. CitiMortgage, Inc.

• Decision Date: 29 May 2014
• Docket Number: Civil Action No. 13–1786 RBW
• Citation: 45 F.Supp.3d 110
• Parties: Rene Avila and Nancy Avila, Plaintiffs, v. CitiMortgage, Inc., et al., Defendants.
• Court: U.S. District Court — District of Columbia

45 F.Supp.3d 110

Rene Avila and Nancy Avila, Plaintiffs

v.CitiMortgage, Inc., et al., Defendants.

Civil Action No. 13–1786 RBW

United States District Court, District of Columbia.

Signed May 29, 2014

Rene Avila, Moreno Valley, CA, pro se.

Nancy Avila, Moreno Valley, CA, pro se.

Tessa Laspia Frederick, Miles & Stockbridge, Baltimore, MD, Rita Ting–Hopper, Atlantic Law Group, LLC, David Ludwig, Dunlap Weaver PLLC, Leesburg, VA, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

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 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.

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 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, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (internal citations and 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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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. 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 127 S.Ct. 1955 ). 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, 129 S.Ct. 1937.

“ ‘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)...