Koker v. Aurora Loan Servicing, LLC

• Decision Date: 03 January 2013
• Docket Number: Civil Action No. 12–1069(RBW).
• Parties: Lisa KOKER, Plaintiff, v. AURORA LOAN SERVICING, LLC, et al., Defendants.
• Court: U.S. District Court — District of Columbia

915 F.Supp.2d 51

Lisa KOKER, Plaintiff,

v.AURORA LOAN SERVICING, LLC, et al., Defendants.

Civil Action No. 12–1069(RBW).

United States District Court,

District of Columbia.

Jan. 3, 2013.

Craig A. Butler, Butler Law Group, PLLC, Washington, DC, for Plaintiff.

Bizhan Beiramee, Beiramee & Cohen PC, McLean, VA, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

Plaintiff Lisa Koker brings this action against Aurora Loan Servicing, LLC (“Aurora”), Mortgage Electronic Registrations Systems, Inc. (“MERS”), James E. Clarke, and Atlantic Law Group, LLC (“Atlantic Law”), asserting claims for wrongful foreclosure and unlawful trade practices in violation of District of Columbia and federal law. See Verified Complaint for Injunctive Relief, Damages, Declaratory and Other Equitable Relief and Civil Penalties (“Compl.”) ¶¶ 9–93. Currently before the Court are two motions to dismiss filed by Aurora and MERS (the “Lender Defendants”), and Clarke and Atlantic Law (the “Trustee Defendants”). Upon careful consideration of the parties' submissions,¹ the Court concludes for the following reasons that the defendants' motions must be granted.

I. BACKGROUND

The complaint contains the following allegations. On November 9, 2006, the plaintiff purchased residential real estate located at 4754 6th Place, N.E., Washington, D.C. 20017 (the “Property”). Compl. ¶¶ 2, 7. She “refinanced the Property on March 26, 2007, and the Deed of Trust ... was recorded among the Land Records of the District of Columbia on April 4, 2007” (the “Deed of Trust”). Id. ¶ 8. Although “[t]he lender referenced in the Deed of Trust was American Brokers Conduit,” id., Aurora is now the “purported noteholder for the Property,” id. ¶ 3. MERS was “a corporation acting as the nominee of American Brokers Conduit and then ... Aurora,” and was also “the beneficiary of the Deed of Trust.” Id. ¶ 4. Clarke “served as the Substitute Trustee” under the Deed of Trust, and is a member of Atlantic Law. Id. ¶¶ 5–6.

In “June 2008, [the p]laintiff commenced communication with Aurora regarding a loan modification.” Id. ¶ 15. She sought the loan modification because she was experiencing “financial hardship ... due to the circumstances surrounding her divorce.” Id. The plaintiff subsequently entered into three forbearance agreements with Aurora between June 2008 and February 2009. See id. ¶¶ 15–17. Although the plaintiff paid Aurora in accordance with the terms of her forbearance agreements, “Aurora initiated [f]oreclosure proceedings” as to the Property “on February 13, 2009, after Aurora had received the [plaintiff's] initial installment payment.” Id. ¶ 18.

“On August 17, 2009, [the p]laintiff filed a Chapter 13 Bankruptcy case” in the United States Bankruptcy Court for the District of Columbia “in an attempt to prevent foreclosure and save her home.” Id. ¶ 19. The Bankruptcy Court confirmed “a Chapter 13 plan ... on November 11, 2009,” and entered a “Consent Order Modifying the Stay ... on April 30, 2010.” Id. “However, the stay was eventually lifted and Aurora proceeded with foreclosure and ... conducted a foreclosure sale [of] the Property on September 21, 2010.” Id.

Following the foreclosure sale, “Aurora initiated a Complaint for Possession of Real Property in the Landlord Tenant Branch of the Superior Court of the District of Columbia [ (“Superior Court”) ] on January 4, 2011.” Id. “On February 1, 2011, [the p]laintiff filed a Verified Answer Interposing Pleas of Title” in the Superior Court action. Id. The Superior Court subsequently entered, with the parties' consent, a “protective order/undertaking” requiring the plaintiff “to pay $1200.00 into the Court Registry each month.” Id. “The case was then certified to the Civil Division” of the Superior Court. Id. The plaintiff, however, failed “to make certain protective order payments.” Id. Consequently, the Superior Court sanctioned the plaintiff by striking her plea of title defense on November 18, 2011, and transferred the case back to the Landlord Tenant Branch. Id. The Superior Court then granted Aurora's motion for summary judgment on March 6, 2012, and issued a Writ of Restitution on March 13, 2012. Id.

The plaintiff instituted this action in the Superior Court on March 21, 2012. Aurora then removed the case to this Court on June 29, 2012. The plaintiff's complaint asserts the following thirteen counts:

• Count I (Violation of D.C.Code § 28–3904—Against Defendant Aurora)

• Count II (Violation of D.C.Code § 42–815—Against All Defendants)

• Count III (Violation of D.C.Code § 47–1431—Against MERS, James E. Clarke, and Atlantic Law)

• Count IV (Violation of D.C.Code § 28–3904—Against All Defendants)

• Count V (Breach of Contract—Against All Defendants)

• Count VI (Tortious Interference with a Contract—Against All Defendants)

• Count VII (Breach of the Duty of Good Faith and Fair Dealing—Against All Defendants)

• Count VIII (Breach of Fiduciary Duty—Against James E. Clarke and Atlantic Law)

• Count IX (Violation of 12 U.S.C. § 2605—Against Defendants Aurora and MERS) • Count X (Declaratory Relief/Quiet Title—Against All Defendants)

• Count XI (Equitable Estoppel—Against All Defendants)

• Count XII (Unjust Enrichment—Against All Defendants)

• Count XIII (Injunctive Relief—Against All Defendants)

Id. ¶¶ 9–93.

The Lender Defendants and Trustee Defendants have now moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

II. STANDARD OF REVIEW

A Rule 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 plaintiff receives 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) (internal quotation marks and citation omitted). But raising a “sheer possibility that a defendant has acted unlawfully” fails to satisfy the facial plausibility requirement. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Rather, a claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is 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), which includes records from other court proceedings, Covad Commc'ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C.Cir.2005).

A defendant may raise affirmative defenses, such as statutes of limitations and res judicata, in a Rule 12(b)(6) motion. SeeSmith–Haynie v. Dist. of Columbia, 155 F.3d 575, 578 (D.C.Cir.1998) (statute of limitations); Stanton v. Dist. of Columbia Ct. of App., 127 F.3d 72, 76–77 (D.C.Cir.1997) (res judicata); Jenson v. Huerta, 828 F.Supp.2d 174, 179 (D.D.C.2011) (res judicata). “[B]ecause statute of limitations issues often depend on contested questions of fact, dismissal is appropriate only if the complaint on its face is conclusively time-barred.” Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir.1996). Similarly, a court may grant a motion to dismiss based on res judicata only “ ‘when the defense appears on the face of the complaint and any materials of which the court may take judicial notice.’ ” Jenson, 828 F.Supp.2d at 179 (citation omitted).

III. ANALYSIS

1. Count I of the Complaint (Violation of D.C.Code § 28–3904 Against Aurora)

Count I of the complaint alleges that Aurora violated the District of ColumbiaConsumer Protection Procedures Act (“D.C. Consumer Protection Act”), D.C.Code § 28–3904 (2001), by offering her “unconscionable repayment terms” in three forbearance agreements between June 2008 and February 2009 that “wrongfully forced [her] into foreclosure.” Compl. ¶¶ 15–18, 23. Aurora contends that this claim is time-barred. Lender Defs.' Mem. at 7–8. The Court agrees.

“A plaintiff must bring an action based on the Consumer Protection Procedures Act within three years ‘from the time the right to maintain the action accrues.’ ” Murray v. Wells Fargo Home Mortg., 953 A.2d 308, 323 (D.C.2008) (quoting D.C.Code § 12–301). And “ ‘[w]here the fact of an injury can be readily determined, a claim accrues for purposes of the statute of limitations at the time the injury actually occurs.’ ” Id. at 324 (citation omitted); see also News World Commc'ns, Inc. v. Thompsen, 878 A.2d 1218, 1222 (D.C.2005) (“[A] cause of action accrues when its elements are present, so that the plaintiff could maintain a successful suit.”). Thus, in Murray, the District of Columbia Court of Appeals held that the claims of home mortgagors under the D.C. Consumer Protection Act relating to a foreclosure sale accrued when “the trustees instituted foreclosure proceedings,” because that marked the point when the claim “could have been brought.” 953 A.2d at 324. Such is the case here: Count I of the complaint alleges that Aurora offered the plaintiff “unconscionable repayment terms” in three forbearance agreements between June 2008 and February 2009 that ultimately caused her to be “wrongfully...