UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WHEELER R. WINSTEAD, : : Plaintiff, : Civil Action No.: 09-0997 (RMU) : v. : Re Document Nos.: 19, 20, 21, 22, 24 : EMC MORTGAGE CORPORATION et al.,: : Defendants. :

MEMORANDUM OPINION

GRANTING THE DEFENDANTS’ MOTIONS TO DISMISS

I. INTRODUCTION

This matter is before the court on the defendants’ motions to dismiss. The plaintiff, the

owner of property subject to foreclosure proceedings, asserts that the defendants violated the

Truth in Lending Act (“TILA”),

et seq., the Real Estate Settlement

Procedures Act (“RESPA”),

et seq., the Fair Debt Collection Practices Act

(“FDCPA”),

, and the National Housing Act (“NHA”),

et

seq. Because the plaintiff’s TILA and RESPA claims are time-barred and because the plaintiff

has failed to state cognizable claims under the FDCPA or the NHA, the court grants the

defendants’ motions to dismiss.

II. FACTUAL 1 & PROCEDURAL BACKGROUND

The plaintiff filed suit on May 28, 2009, and simultaneously sought a preliminary

injunction to stop foreclosure proceedings on his property. See generally Compl.; Pl.’s Mot. for

1 The court incorporates by reference the factual summary contained in the court’s memorandum opinion dated June 5, 2009, denying the plaintiff’s motion for a preliminary injunction. See Mem. Op. (June 5, 2009) at 2.

1 Prelim. Inj. On June 5, 2009, the court denied the plaintiff’s motion for a preliminary injunction.

See generally Mem. Op. (June 5, 2009). Defendants Rosenberg & Associates, LLC

(“Rosenberg”) and NRT Mid-Atlantic, LLC d/b/a Coldwell Banker Residential Brokerage

(“Coldwell”) filed motions to dismiss on June 22, 2009. See generally Rosenberg Mot.;

Coldwell Mot. The following day defendants EMC Mortgage Corporation (“EMC”) and

Fremont Reorganizing Corporation f/k/a Fremont Investment & Loan (“Fremont”) filed motions

to dismiss, see generally EMC Mot.; Fremont Mot., and defendant Saxon Mortgage Services,

Inc. (“Saxon”) filed its motion to dismiss on June 24, 2009, see generally Saxon Mot. The

plaintiff filed a consolidated opposition to the defendants’ motions on June 30, 2009. See

generally Pl.’s Opp’n. Coldwell filed a reply in support of its motion on July 13, 2009. See

generally Coldwell Reply. As all motions are now fully briefed, the court turns to the applicable

legal standard and the parties’ arguments.

III. ANALYSIS

A. Legal Standard for a Rule 12(b)(6) Motion to Dismiss

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning

v. Clinton,

(D.C. Cir. 2002). The complaint need only set forth a short and

plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon

which it rests. Kingman Park Civic Ass’n v. Williams,

(D.C. Cir. 2003)

(citing FED. R. CIV. P. 8(a)(2) and Conley v. Gibson,

(1957)). “Such simplified

notice pleading is made possible by the liberal opportunity for discovery and the other pre-trial

procedures established by the Rules to disclose more precisely the basis of both claim and

defense to define more narrowly the disputed facts and issues.” Conley,

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2 (internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of

his prima facie case in the complaint, Swierkiewicz v. Sorema N.A.,

(2002),

or “plead law or match facts to every element of a legal theory,” Krieger v. Fadely,

(D.C. Cir. 2000) (internal quotation marks and citation omitted).

Yet, “[t]o survive a motion to dismiss, 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,

(2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly,

(2007) (abrogating the oft-quoted language from Conley,

, instructing

courts not to dismiss for failure to state a claim unless it appears beyond doubt that “no set of

facts in support of his claim [] would entitle him to relief”). A claim is facially plausible when

the pleaded factual content “allows the court to draw the reasonable inference that the defendant

is liable for the misconduct.” Iqbal,

. “The plausibility standard is not akin to

a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has

acted unlawfully.”

In resolving a Rule 12(b)(6) motion, the court must treat the complaint’s factual

allegations – including mixed questions of law and fact – as true and draw all reasonable

inferences therefrom in the plaintiff’s favor. Macharia v. United States,

(D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft,

(D.C. Cir.

2003); Browning,

. While many well-pleaded complaints are conclusory, the

court need not accept as true inferences unsupported by facts set out in the complaint or legal

conclusions cast as factual allegations. Warren v. District of Columbia,

(D.C.

Cir. 2004); Browning,

. “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal,

.

3 B. The Court Grants the Defendants’ Motions to Dismiss

1. The Plaintiff’s TILA and RESPA Claims are Time-Barred

Each defendant argues that the plaintiff’s TILA and RESPA claims are barred by the

applicable statutes of limitations. See Rosenberg Mot. at 4-5; Coldwell Mot. at 4, 6; Fremont

Mot. at 3-4; EMC Mot. at 9; Saxon Mot. at 3. The plaintiff appears to concede that these claims

are time-barred when he states that “[p]laintiff conceded in previous motions that both his TILA

[c]laims and [s]ome RESPA claims are time barred; case closed.” Pl.’s Opp’n at 8. “But,” the

plaintiff continues, the defendants “are legally bound” to respond to his request for a copy of the

original note.

(emphasis added). The plaintiff also continues to discuss the alleged “fraud” in

the settlement process. See generally

Because the plaintiff makes substantive arguments

despite “conceding” that his claims are time-barred, the court construes his comments as an

argument for equitable tolling of the applicable statutes of limitations. See Haines v. Kerner,

(1972) (holding that pro se pleadings should be held to a “less stringent

standard[] than formal pleadings drafted by lawyers”). Neither the TILA nor RESPA statutes of

limitations are, however, subject to equitable tolling. See Hardin v. City Title & Escrow,

(D.C. Cir. 1986) (holding that the statutes of limitations contained in both

TILA and RESPA are jurisdictional and, therefore, not subject to equitable tolling). The court,

accordingly, dismisses the plaintiff’s TILA and RESPA claims.

2. The Plaintiff Failed to State Claims Under the FDCPA and the NHA

Coldwell and EMC maintain that they are not “debt collectors” for the purposes of the

FDCPA. 2 Coldwell Mot. at 7; EMC Mot. at 5-6. Similarly, Fremont, Rosenberg and Saxon

2 The FDCPA protects (1) consumers (2) who have been subjected to abusive, deceptive or unfair debt collection practices (3) by a debt collector (4) in an attempt to collect a debt. See 15 U.S.C. § 1692e-f.

4 argue that the plaintiff has not alleged that they were subject to the FDCPA and has failed to

offer facts explaining how they violated it. Fremont Mot. at 4-5; Rosenberg Mot. at 5; Saxon

Mot. at 3. All defendants likewise assert that the plaintiff has not stated sufficient facts to

maintain his NHA claim. See Rosenberg Mot. at 5; Fremont Mot. at 4-5; EMC Mot. at 6-7;

Saxon Mot. at 3.3

In response, the plaintiff fails to address any of the defendants’ attacks on the sufficiency

of his complaint, see generally Pl.’s Opp’n, instead repeatedly demands that the defendants

produce the original note or deed of trust, see id. at 5 (challenging the defendants to “[s]how the

original note that [the plaintiff] signed at closing”); id. at 8 (alleging that the “core deficit” of the

defendants’ motions in their failure to answer the question “[w]here is the Note?”); id. at 9

(stating that “there are legal issues that can be resolved by the production of the original note”).

What the plaintiff fails to understand is that the burden rests on him, at this stage, to

allege facts sufficient to support his claim. See Iqbal,

(explaining that “labels

and conclusions” are not sufficient and that “the pleading standard . . . does not require ‘detailed

factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-

me accusation”) (quoting Twombly,

). Because the plaintiff has not articulated

facts to support his FDCPA and NHA claims, see Mem. Op. (June 5, 2009) at 6; see generally

Pl.’s Opp’n, the court dismisses those claims. 4

3 Coldwell asserts that the NHA claim does not apply to it. Coldwell Mot. at 7. Indeed, the plaintiff agrees, stating that “defendant Coldwell [B]anker in this matter is as irrelevant as a weeks old paper.” Pl.’s Opp’n at 10. 4 Furthermore, by failing to address the defendants’ contentions in his opposition, the plaintiff has conceded that the defendants’ arguments. See Buggs v. Powell,

(D.D.C. 2003) (specifying that “when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded”).

5 IV. CONCLUSION

For the foregoing reasons, the court grants the defendants’ motions to dismiss. 5 An

Order consistent with this Memorandum Opinion is separately and contemporaneously issued

this 22nd day of March, 2010.

RICARDO M. URBINA United States District Judge

5 The plaintiff also argues that he has a claim under the theory of “unclean hands.” See Compl. at 17; Pl.’s Opp’n at 2. The court notes that the theory of unclean hands is an affirmative defense, not a cause of action. See CJS EQUITY § 109 (noting that the unclean hands “maxim expresses a principle of inaction rather than action, and may be invoked only to prevent affirmative equitable relief”). Accordingly, any such “claim” is also dismissed.

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