Estate of Mickens v. U.S. Bank

ESTATE OF CAROLYN J. MICKENS, et al., Plaintiffs, v. U.S. BANK NATIONAL ASSOCIATION, et al., Defendants.

No. 18-cv-928 (KBJ)

United States District Court, District of Columbia

August 5, 2021

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States Circuit Judge.

On April 19, 2018, Plaintiffs Estate of Carolyn J. Mickens and Vivian Newman (the estate's administrator) brought the instant legal action against three institutional defendants U.S. Bank National Association, as Trustee for the C-Bass Mortgage Loan Asset-Backed Certificates, Series 2006-RP2 (“U.S. Bank”), Ocwen Loan Servicing, LLC (“Ocwen”), and BWW Law Group, LLC (“BWW” and, collectively “Defendants”). Plaintiffs allege that Defendants violated several federal and local consumer protection statutes in connection with their efforts to foreclose on Carolyn Mickens's property due to a defaulted mortgage. (See Second Am. Compl., ECF No. 44, ¶ 1.) Plaintiffs have now voluntarily dismissed their claims against BWW (see Notice of Voluntary Dismissal, ECF No. 70), and U.S. Bank and Ocwen have moved to dismiss Plaintiffs' second amended complaint in this matter for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure (see Defs.' Mot. to Dismiss Second Am. Compl., ECF No. 48, at 1).^[1] For the reasons explained below, this Court concludes that Plaintiffs' second amended complaint must instead be dismissed because it fails to satisfy Rule 8's basic pleading requirements. Consequently, Plaintiffs' second amended complaint will be DISMISSED with leave to amend, and U.S Bank and Ocwen's motion to dismiss will be DENIED AS MOOT. A separate Order consistent with this Memorandum Opinion will follow.

I. BACKGROUND FACTS^[2]

Until her death in 2016, Carolyn Mickens owned real property located at 5200 Ames Street Northeast in Washington, D.C. (Second Am. Compl. ¶¶ 7, 29.)^[3] In 1998, Mickens refinanced the mortgage on that property, by taking out a loan of about $100, 000, and she executed a promissory note that reflected the terms of the loan, as well as a deed of trust that secured the loan with a lien on the property. (See id. ¶¶ 1012.)^[4] Several years later, in 2001, Mickens filed a petition for Chapter 7 bankruptcy, and as a result, she obtained a standard discharge of her personal obligations on her debts that same year. (See Id. ¶ 13; see also Exs. to Second Am. Compl. at 17.) Nonetheless, Plaintiffs allege that Mickens later “reaffirmed the mortgage debt” at some unspecified time (Second Am. Compl. ¶ 14), and “continued to pay her mortgage loan payments on the [p]roperty” (id. ¶ 13).

Records from the files of U.S. Bank and Ocwen indicate that Mickens stopped making payments on the mortgage loan in April of 2009. (See Id. ¶ 42; see also Exs. to Second Am. Compl. at 4.) Consequently, in August of 2014, U.S. Bank initiated a judicial foreclosure action in the District of Columbia Superior Court, seeking a court order authorizing a judicial sale of Mickens's property. (See Second Am. Compl. ¶ 27.) See also U.S. Bank Nat'l Ass'n v. Mickens, No. 2014-CA-5065 (D.C. Super. Ct. filed Aug. 8, 2014). BWW represented U.S. Bank in this foreclosure action. (See, e.g., Second Am. Compl. ¶ 58.) Plaintiffs allege that U.S. Bank amended its complaint on July 20, 2017, after the parties learned of another unreleased lien on the property, to add the holder of the lien as a party “so that . . . title [on the property] could be cleared.” (Id. ¶ 54.) Then, after a dispute arose over whether U.S. Bank had possession of the note (see id. ¶¶ 57-59, 65-69), U.S. Bank filed a second amended complaint in the foreclosure action on January 2, 2019, in which it represented that it “had the Note” at one point but “lost it, ” although U.S. Bank asserted that it “still owned the Loan and could enforce the lost Note” (id. ¶ 71(A)).^[5]

Meanwhile, Mickens and Newman (Mickens's niece) initiated a series of communications with U.S. Bank and Ocwen concerning the mortgage loan. (See Id. ¶¶ 28-50.) For instance, Plaintiffs allege that they “submitted a loan modification application” to Ocwen (id. ¶ 28), but Ocwen ultimately denied that application on January 6, 2017, purportedly because Plaintiffs missed the deadline to apply for a federal loan modification program, and because “the owner of the loan does not allow modifications” (id. ¶ 35). After this denial, Plaintiffs allegedly “instituted a plan to sell the [p]roperty and requested a payoff quote” from Ocwen. (Id. ¶ 37.) However, according to Plaintiffs, the payoff quote that Ocwen provided “included inflated and illegal fees.” (Id. ¶ 38.) Between January 16, 2017, and May 30, 2018, Plaintiffs and Ocwen exchanged a series of letters in which Plaintiffs disputed the loan balance and requested additional information regarding the loan and Ocwen's denial of Plaintiffs' loan modification application. (See Id. ¶¶ 38-50; see also Exs. to Second Am. Compl. at 1-3, 8-13, 19 (Plaintiffs' letters); Id. at 4-7, 14-18 (Ocwen's responses).)

II. PROCEDURAL HISTORY

On April 19, 2018, after Mickens passed away, Plaintiffs filed the instant action against U.S. Bank, Ocwen, and BWW (see Compl., ECF No. 1, ¶¶ 1-5); they have twice amended their complaint, on September 4, 2018 (see Am. Compl., ECF No. 19), and again on April 23, 2019 (see Second Am. Compl.). In their second amended complaint, which is currently the operative pleading in the instant matter, Plaintiffs maintain that Defendants contravened numerous federal and District of Columbia statutes by making allegedly false representations in the Superior Court foreclosure proceedings, and by failing to provide certain statutorily required information in Defendants' communications with Plaintiffs concerning the loan and the loan modification application. (See, e.g., Id. ¶¶ 1, 47, 55.)

In particular, Plaintiffs' seven-count pleading alleges that Defendants violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. (id. ¶¶ 7899 (Counts One and Two))^[6]; the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq. (id. ¶¶ 100-37 (Count Three)); the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691 et seq. (id. ¶¶ 138-54 (Count Four)); the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq. (id. ¶¶ 155-62 (Count Five)); the District of Columbia Mortgage Lender and Broker Act (“MLBA”), D.C. Code § 26-1101 et seq. (id. ¶¶ 163-67 (Count Six)); and the District of Columbia Consumer Protection Procedures Act (“CPPA”), D.C. Code § 28-3901 et seq. (id. ¶¶ 168-75 (Count Seven)). For instance, Plaintiffs assert that Defendants violated the FDCPA by “falsely representing to be in possession of the Note” and “falsely representing a right to collect on the debt and foreclose on the [p] roperty” in the Superior Court foreclosure action (id. ¶ 82), and that Defendants violated RESPA by failing to provide timely and complete responses to Plaintiffs' inquires concerning the mortgage and their loan modification application (see id. ¶¶ 108-10). For relief, Plaintiffs seek compensatory, statutory, and punitive damages, as well as a declaration that Defendants' actions were unlawful and attorney's fees. (See id., Prayer for Relief ¶¶ A-I.)

On May 14, 2019, U.S. Bank and Ocwen moved to dismiss Plaintiffs' second amended complaint under Rule 12(b)(6). (See Defs.' Mem. in Supp. of Mot. to Dismiss Second Am. Compl. (“Defs.' Mot.”), ECF No. 48-1, at 8-11.)^[7] As a threshold matter, U.S. Bank and Ocwen strenuously insist that this Court should decline to exercise jurisdiction over this matter pursuant to the Colorado River abstention doctrine, because the “pending foreclosure action in the Superior Court . . . addresses the very same factual issues raised in Plaintiffs' Complaint” in the instant lawsuit. (Id. at 19 (emphasis omitted).) See also Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). U.S. Bank and Ocwen further contend that Plaintiffs' second amended complaint fails to state a claim upon which relief can be granted, as “the allegations advanced by Plaintiffs do not rise to a breach of any contractual, common law, or statutory duty.” (Defs.' Mot. at 10.) In this regard, for example, U.S. Bank and Ocwen argue that Plaintiffs' FDCPA claims based on representations in the Superior Court foreclosure action fail as a matter of law, because materiality “is a required element to state a FDCPA claim[, ]” but “[w] hether U.S. Bank initially misrepresented its possession of the Note is not material to its right to foreclose[, ] as it may proceed with foreclosure as a non-holder.” (Id. at 24.) Furthermore, according to U.S. Bank and Ocwen, “Newman lacks standing to assert a RESPA claim[, ]” since “RESPA applies only to a ‘borrower'-i. e., someone who is obligated under the applicable loan documents”-and “Newman does not allege she assumed the obligations under [the] Note.” (Id. at 26.) In opposition to U.S. Bank and Ocwen's motion to dismiss, Plaintiffs maintain that Colorado River abstention is unwarranted in the instant circumstances (see Pls.' Opp'n to Defs.' Mot. to Dismiss Second Am. Compl. (“Pls.' Opp'n”), ECF No. 53, at 1), and they further assert that they have adequately pleaded violations of each of the statutes invoked in their complaint (see id. at 5-21).

This Court held a motion hearing regarding Defendants' motion to dismiss on August 20, 2020. (See Min. Entry of Aug. 20 2020.) After the motion hearing, on October 19, 2020, Plaintiffs filed a notice of voluntary dismissal with respect to their claims against BWW after reaching a settlement agreement with BWW (see Pls.' Notice of Voluntary Dismissal), and that same day, Plaintiffs moved for leave to file a third amended complaint, which would ...