UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) DEWAINE QUICK, et al., ) ) Plaintiffs, ) ) v. ) Case No. 17-cv-01242 (APM) ) EDUCAP, INC., et al., ) ) Defendants. ) _________________________________________ )

MEMORANDUM OPINION

This case is born out of two student loans issued by Defendant HSBC Bank, one to Plaintiff

Dewaine Quick and the other to Plaintiff Lynn Davis, as co-signer for her niece. Although the two

loans are unrelated, Plaintiffs’ stories are much the same. After each loan went into default,

Defendant EduCap, represented by Defendant Weinstock, Friedman & Friedman, filed a collection

action against each Plaintiff in D.C. Superior Court. In those cases, EduCap sought the balance of

the loan, unpaid interest, and attorneys’ fees. Quick never appeared, and eventually the

D.C. Superior Court entered a default judgment against him. Davis, on the other hand, appeared

and agreed to entry of a consent judgment against her.

Approximately two years later, Plaintiffs filed this case as a class action, alleging that

EduCap, Weinstock, and HSBC (collectively, “Defendants”) violated state and federal law through

their joint debt-collection activities. Plaintiffs’ suit centers on a single alleged transgression: that

EduCap falsely misrepresented in the collection actions that EduCap, as opposed to HSBC, had

entered into the loan agreements with Plaintiffs. That falsehood, Plaintiffs maintain, enabled EduCap to foreclose on their defaulted loans when it had no right to do so. EduCap repeated this

unfair debt collection practice, according to Plaintiffs, in state courts throughout the country.

This matter is before the court on Defendants’ motions to dismiss and Plaintiffs’ motion

for leave to amend their complaint. Defendants argue that this suit must be dismissed for two

primary reasons: (1) the Rooker-Feldman doctrine divests the court of subject-matter jurisdiction;

and (2) the doctrine of res judicata precludes Plaintiffs’ claims. Additionally, Defendants move to

dismiss all causes of action for failure to state a claim and a subset of them for lack of standing.

For the reasons that follow, Defendants’ motions to dismiss are granted, and Plaintiffs’ motion for

leave to amend their complaint is denied as futile.

I. BACKGROUND

A. Factual Background 1

This case arises out of two student loans taken out more than a decade ago. On July 2,

2007, Plaintiff Lynn Davis co-signed a student loan issued by Defendant HSBC to her niece. See

Pls.’ Mot. for Leave to File Second Am. Compl., ECF No. 24, Second Am. Class Compl., ECF

No. 24-1 [hereinafter Second Am. Compl.], ¶¶ 25–27. The loan agreement obligated Davis, as co-

signer, to repay the amount of the loan and interest to HSBC, see id. ¶¶ 26–27, and identified

Defendant EduCap as the loan servicer, see id. ¶ 39. See also Pls.’ Mot. for Class Cert., ECF No.

12, Ex. B, ECF No. 12-3 (copy of Verified Complaint against Davis) [hereinafter Davis Compl.]. 2

1 The recited facts are based on the allegations set forth in Plaintiffs’ proposed Second Amended Complaint, ECF No. 24-1. 2 Although not filed as exhibits to Plaintiffs’ complaint, the D.C. Superior Court records in Davis’s and Quick’s respective collection actions are attached as exhibits to Plaintiffs’ Motion for Class Certification, ECF No. 12. The court can consider these records in resolving the motions to dismiss because they are incorporated into the complaint and are subject to judicial notice. See Hurd v. District of Columbia,

(D.C. Cir. 2017); Covad Commc’ns. Co. v. Bell Atl. Corp.,

, 1222 (D.C. Cir. 2005). The court also may consider these records in resolving Defendants’ jurisdictional challenge. See Gulf Coast Mar. Supply, Inc. v. United States,

(D.C. Cir. 2017).

2 Plaintiff Dewaine Quick’s story is similar. Quick took out a student loan from HSBC for $16,200

on July 30, 2007. Second Am. Compl. ¶¶ 18–20. The loan agreement obligated Quick to repay

the amount of the loan with interest to HSBC,

¶¶ 19–20, and identified EduCap as the loan

servicer, see id. ¶ 39. See also Pls.’ Mot. for Class Cert., Ex. C, ECF No. 12-4 (copy of Verified

Complaint against Quick) [hereinafter Quick Compl.].

When Plaintiffs obtained these loans, EduCap, HSBC, and other private lenders were part

of a “partnership” created for the purpose of disbursing student loans, which Plaintiffs refer to as

the “L2L” partnership. Second Am. Compl. ¶ 59. At the same time, EduCap sponsored a trust

entity known as the L2L Education Loan Trust 2006-1 (“the L2L Trust”), which was an asset-

backed security that held a pool of direct-to-consumer student loans originated by various private

banks. See id. ¶ 60. The L2L Trust operated in the following manner: HSBC sold to EduCap

student loans that it had originated, and EduCap in turn conveyed legal title to those loans to the

L2L Trust. Id. ¶ 65. The Trust then issued securities that were backed by the future receivables

on the underlying student debt. Id. This arrangement allowed the L2L Trust’s creators—which

included HSBC and EduCap—“to convert future receivables on [student] loans into immediate

cash while, at the same time, insulating HSBC and EduCap from potential risk.” Id. ¶ 63. Under

this arrangement, HSBC would receive money when it sold its student loans to EduCap, EduCap

would receive money when it transferred title to the L2L Trust, and the L2L Trust would receive

money from investors, whose return was based on the expected future stream of student loan

repayment. Id. ¶ 67.

The financial crisis of 2007, however, changed everything. At that point, according to

Plaintiffs, “the Defendants’ plan began to unravel in a failure of colossal proportions.” Id. ¶ 68.

Market conditions rendered EduCap “unable” to buy student loans. Id. ¶ 69. To “avoid financial

3 collapse,” HSBC bought some of its loans back from EduCap, and it retained, sold, or securitized

other loans, “thereby generating millions of dollars to improve its balance sheet and financial

performance ratios.” See id.

Eventually Quick defaulted on his student loan, leading EduCap to file a debt collection

action in D.C. Superior Court. Id. ¶ 21–22. Defendant Weinstock, Friedman & Friedman

(“Weinstock”), the law firm that filed the complaint, identified “EDUCAP Inc.” as the plaintiff,

id. ¶ 22, even though EduCap was neither the loan originator nor a party to the promissory note,

see id. ¶¶ 40–41; see also Quick Compl. The complaint against Quick sought repayment of the

loan balance and pre-judgment interest. Second Am. Compl. ¶ 23; Quick Compl. ¶ 2. It also

demanded payment of an additional $2,263.01, as a “15% contingency-based attorney’s fee” based

on the balance of the loan, id., even though the terms of Quick’s promissory note did not allow for

the collection of such fees, see Second Am. Compl. ¶ 24.

Davis’s story is much the same. After the primary borrower defaulted, Weinstock filed a

debt collection action against Davis in D.C. Superior Court on December 4, 2013. Id. ¶ 28–29;

see generally Davis Compl. As in the action against Quick, the Davis lawsuit incorrectly listed

“EDUCAP Inc.” as the plaintiff. 3 Second Am. Compl. ¶ 29; see id. ¶¶ 40–41. And, as with the

debt collection action against Quick, Weinstock’s lawsuit against Davis sought a 15 percent

contingency-based attorney’s fee, amounting to $785.50, even though that fee was not authorized

by the terms of the promissory note. See id. ¶¶ 30–31; Davis Compl. ¶ 2.

Plaintiffs allege that these debt collection actions were premised on a lie: that EduCap had

power to bring them. To establish EduCap’s standing, Weinstock attached to both the Quick and

3 This allegation is incorrect. As the actual Davis Complaint shows, the plaintiff was identified as “EDUCAP, INC. on behalf of HSBC Bank USA, National Association.” See Davis Compl. at 2 (page number automatically generated by CM/ECF). This error, however, is immaterial to the court’s decision.

4 Davis complaints a sworn affidavit from EduCap employee Marcus Maiorca. The Maiorca

Affidavit falsely stated that Quick and Davis had “entered into a written promissory note with

EduCap,” when in fact HSBC had issued the loans and EduCap did not own the loans at the time.

See Second Am. Compl. ¶¶ 35, 40–41; Quick Compl. at 4; Davis Comp. at 4. This affidavit, filed

in thousands of other debt collection actions brought by EduCap, was used to “trick courts and

consumers across the country into believing that EduCap [was] the actual creditor, or ha[d]

authority to sue on behalf of HSBC.” Second Am. Compl. ¶ 55. At the time of the actions against

Quick and Davis, Weinstock “only represented EduCap”; it had no attorney-client or employment

relationship with HSBC. Id. ¶ 38.

Defendants’ deceitful conduct continued during the pendency of the collection actions, as

Weinstock repeatedly sought to change the named plaintiff. In 2015, Weinstock moved to change

the plaintiff in the case against Quick from “EduCap” to “EduCap, Inc. on behalf of HSBC Bank

USA, N.A.” Id. ¶ 42. The Superior Court entered a default judgment against Quick two weeks

later. Id. ¶ 43. But in 2017 Weinstock once again asked permission to change the named plaintiff

in Quick’s case—this time, to “HSBC Bank, USA, N.A” Id. ¶ 44. As for Davis, she agreed to

entry of a consent judgment on July 16, 2015, whereby she promised to pay $5 each month directly

to Weinstock. Id. ¶ 45. Davis has paid Weinstock $5 a month ever since. See id. In 2017,

Weinstock successfully moved to change the named plaintiff against Davis to “HSBC Bank USA,

N.A.” Id. ¶ 46.

B. Procedural Background

Some two years later, this federal action followed. Plaintiffs filed a class-action complaint

on June 26, 2017, which they amended as of right on July 10, 2017. See Compl., ECF No. 1; Am.

Compl., ECF No. 6. The Amended Complaint asserts claims under the federal Racketeer

5 Influenced and Corrupt Practices Act (“RICO”),

et seq.; the federal Fair Debt

Collection Practices Act (“FDCPA”),

et seq.; the District of Columbia Debt

Collection Law,

; as well as common law claims of abuse of process and

unjust enrichment. See generally Am. Compl. Defendants moved to dismiss the Amended

Complaint on August 31, 2017. See HSBC’s Mot. to Dismiss, ECF No. 15 [hereinafter HSBC’s

Mot.]; EduCap & Weinstock’s Mot. to Dismiss, ECF No. 17 [EduCap & Weinstock’s Mot.].

On November 17, 2017, after briefing on Defendants’ motions had concluded, Defendant

HSBC sent Plaintiffs a draft Rule 11 sanctions motion, asserting that the “foundational factual

predicate” for Plaintiffs’ First Amended Complaint “was unequivocally false.” Def. HSBC Bank

USA, N.A.’s Opp’n to Pls.’ Mot. for Leave to File Second Am. Compl., ECF No. 26 [hereinafter

HSBC’s Opp’n], at 4–5; see Pls.’ Mot. for Leave to file Second Am. Compl., at 1, 3;

Ex. B.,

ECF No. 24-2 [hereinafter HSBC’s Draft Rule 11 Mot.]. HSBC accused Plaintiffs’ counsel of

possessing “key facts that refuted his theory that Plaintiffs’ loans were securitized.” HSBC’s Draft

Rule 11 Mot. at 1. More specifically, according to HSBC, counsel had learned through discovery

in another case that “Plaintiffs’ loans were owned by HSBC and never securitized.”

HSBC

did not, however, file a Rule 11 sanctions motion.

Thereafter, on December 5, 2017, Plaintiffs moved to amend their complaint a second time,

seeking to add “facts and claims arising from recent admissions by HSBC” in its draft Rule 11

memorandum. Pls.’ Mot. for Leave at 1. Plaintiffs’ motion identifies two such admissions: (1) that

HSBC bought back Davis’s loan from EduCap in December 2008, and (2) that HSBC has held

Quick’s loan since it originated.

. These statements, Plaintiffs claim, show that “Defendants

engaged in unlawful debt collection by misrepresenting EduCap as the actual creditor.” Pls.’ Mot.

for Leave at 6; see also

. Plaintiffs’ Second Amended Complaint thus proposes to add

6 allegations that HSBC owned Plaintiffs’ loans at the time Weinstock filed the D.C. Superior Court

actions. See Second Am. Compl. ¶¶ 53–54; see also EduCap & Weinstock’s Opp’n to Pls.’ Mot.

for Leave to File Second Am. Compl., ECF No. 25 [hereinafter EduCap & Weinstock’s Opp’n],

Ex. B, ECF No. 25-1 (redlined copy of Plaintiffs’ Second Amended Complaint) [hereinafter

Redlined Second Am. Compl.].4

The court held a hearing on the pending motions on April 18, 2018, and now turns to the

merits.

II. DISCUSSION

A. Dismissal Under Rule 12(b)(1)

The court begins with three jurisdictional issues: (1) whether the court lacks subject-matter

jurisdiction over Plaintiffs’ claims under the Rooker-Feldman doctrine; (2) whether both Plaintiffs

lack standing to sue HSBC; and (3) whether Plaintiff Quick possesses standing to assert any

claims. Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff bears the burden

of establishing that the court has subject-matter jurisdiction. See Lujan v. Defenders of Wildlife,

(1992). In deciding a Rule 12(b)(1) motion, the court “may consider materials

outside the pleadings,” but “must still accept all of the factual allegations in the complaint as true.”

Jerome Stevens Pharm., Inc. v. Food & Drug Admin.,

, 1253–54 (D.C. Cir. 2005)

(citation and alteration omitted). “Because subject-matter jurisdiction focuses on the court’s power

to hear the plaintiff’s claim, a Rule 12(b)(1) motion imposes on the court an affirmative obligation

4 The proposed Second Amended Complaint makes contradictory allegations about the loans’ ownership at the time EduCap initiated the D.C. Superior Court actions. On the one hand, Plaintiffs claim that HSBC owned the loans when the suits were filed. See Second Am. Compl. ¶ 53 (alleging the HSBC owned Davis’s loan when the collection action was filed); id. ¶ 54 (alleging that HSBC owned Quick’s loan when the collection action was filed). Yet, at the same time, Plaintiffs have retained the allegation from their earlier complaints that L2L Trust was the true owner of the loans and only the L2L Trust could have filed suit. Id. ¶ 73. In the end, Plaintiffs appear to hedge their bets, alleging that HSBC “owned, sold, or securitized the loans.” See, e.g., id. ¶¶ 105, 108, 120 (emphasis added). These muddled allegations do not ultimately affect the court’s rulings.

7 to ensure that it is acting within the scope of its jurisdictional authority.” Grand Lodge of Fraternal

Order of Police v. Ashcroft,

(D.D.C. 2001). Accordingly, “‘the plaintiff's

factual allegations in the complaint will bear closer scrutiny in resolving a 12(b)(1) motion’ than

in resolving a 12(b)(6) motion for failure to state a claim.”

(quoting 5A Charles A. Wright &

Arthur R. Miller, Fed. Prac. & Proc. Civ. 2d § 1350).

For the reasons that follow, the court finds that: (1) it lacks jurisdiction under the Rooker-

Feldman doctrine to hear Plaintiffs’ RICO, unjust enrichment, and abuse of process claims, but

has jurisdiction as to their federal and District of Columbia unfair debt collection statutory claims;

(2) Plaintiffs lack standing to pursue claims against HSBC; and (3) Plaintiff Quick has standing to

pursue some but not all of his claims against EduCap and Weinstock.

1. Rooker-Feldman

The court begins with Defendants’ argument that Plaintiffs’ lawsuit is a de facto challenge

to final state court judgments—the District of Columbia collection actions—and, as a result, this

court lacks subject-matter jurisdiction under the Rooker-Feldman doctrine. HSBC’s Mot., Mem.

in Supp., ECF No. 15-1 [hereinafter HSBC’s Mem.], at 9–13; EduCap & Weinstock’s Mot., Mem.

in Supp., ECF No. 17-1 [hereinafter EduCap & Weinstock’s Mem.], at 10–12; see also EduCap &

Weinstock’s Opp’n at 10–11; HSBC Opp’n at 7–8. Because Plaintiffs do not expressly seek as

relief the undoing of the D.C. Superior Court judgments, Defendants argue that Plaintiffs’ current

action is “inextricably intertwined” with the D.C. Superior Court judgments because the “core” of

their federal claims “is that EduCap did not have standing to pursue the collection actions.”

HSBC’s Mem. at 10–11; see also EduCap & Weinstock’s Mem. at 7. They believe the suit is

tantamount to a request to undo the D.C. Superior Court judgments because, in order to succeed

on their claims, Plaintiffs “must demonstrate that the D.C. Superior Court wrongly entered

8 judgments in favor of EduCap despite EduCap’s purported lack of standing.” HSBC’s Mem. at

10–11; EduCap & Weinstock’s Mem. at 7. Plaintiffs counter that Rooker-Feldman does not apply

here because their challenge is to Defendants’ pre-judgment unfair debt collection practices—

namely, the drafting of the false Maiorca affidavit—rather than the D.C. Superior Court judgments

themselves. See Pls.’ Omnibus Opp’n to Mots. to Dismiss, ECF No. 20, Pls.’ Mem. in Supp., ECF

No. 20-1 [hereinafter Pls.’ Opp’n], at 9–11; Pls.’ Omnibus Reply Br., ECF No. 27 [hereinafter

Pls.’ Reply]. Alternatively, Plaintiffs argue that, because Defendants procured the D.C. Superior

Court judgments by fraud or deception, Rooker-Feldman does not divest this court of jurisdiction.

See Pls.’ Opp’n at 10 n.69.

The Rooker-Feldman doctrine hails from the only two Supreme Court cases in which the

Court has applied it: Rooker v. Fidelity Trust Co.,

(1923), and District of Columbia

Court of Appeals v. Feldman,

(1983). The doctrine is rooted in

, a

statute that vests sole authority in the Supreme Court to review state court judgments. See Skinner

v. Switzer,

(2011). In both Rooker and Feldman, the plaintiffs “asked the

District Court to overturn the injurious state-court judgment,” and in both cases the Court held that

“District Courts lacked subject-matter jurisdiction over such claims.”

Since the Rooker and Feldman cases, the Supreme Court has emphasized that the doctrine

occupies a “narrow ground.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

(2005); see Croley v. Joint Comm. on Judicial Admin., No. 15-5080,

, at *4

(D.C. Cir. July 6, 2018). In Exxon Mobil, the Court instructed that the doctrine “is confined to

cases brought by state-court losers complaining of injuries caused by state-court judgments

rendered before the federal district court proceedings commenced and inviting district court review

and rejection of those judgments.”

. This limited construction of Rooker-Feldman

9 means that district courts do not lack jurisdiction “simply because a party attempts to litigate in

federal court a matter previously litigated in state court.”

. Rather, “[i]f a federal plaintiff

‘present[s] 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.’”

(citation omitted and second

alteration original). Thus, a prior state court decision will not automatically strip a federal court

of jurisdiction where the federal matter shares common parties and issues with its state court

predecessor. See Skinner,

.

Neither party cites a D.C. Circuit case that applies Rooker-Feldman to facts similar to those

presented here. In lieu of such precedent, Defendants direct the court primarily to district court

cases from this jurisdiction. See HSBC’s Mem. at 10–13. None of these cases, however, contain

an allegation that the earlier state court judgment was procured by fraud. See

Thus, they are

of limited value in this instance because they are not precedential and because they are not on all

fours with the facts of this case.

When other circuit courts have been presented with circumstances similar to those at issue

here, they have split on the outcome. For instance, in Todd v. Weltman, Weinberg & Resi Co.,

L.P.A.,

(6th Cir. 2002), the Sixth Circuit considered an FDCPA claim brought by a

plaintiff who alleged that the defendant in an earlier state court garnishment proceeding succeeded

in freezing the federal plaintiff’s bank account by filing a false affidavit attesting that the defendant

had complied with certain state law requirements, when in fact the federal defendant had not done

so.

. Responding to the defendant’s invocation of the Rooker-Feldman doctrine, the

Sixth Circuit held that the defendant’s jurisdictional argument “ignores the fact that Plaintiff here

does not complain of injuries caused by this state court judgment, as the plaintiffs did in Rooker

10 and Feldman. Instead, after the state court judgment, Plaintiff filed an independent federal claim

that Plaintiff was injured by Defendant when he filed a false affidavit.”

(emphasis added). The

Rooker-Feldman doctrine therefore did not apply.

5 The Second Circuit reached the same

conclusion in Gabriele v. American Home Mortgage Servicing, Inc.,

(2d Cir.

2012), a case in which the plaintiff brought an FDCPA claim based on various alleged misdeeds

in earlier state court proceedings, including the “filing of three allegedly false affidavits, two of

which were signed by employees of” the defendant company.

. The court held that

Rooker-Feldman did not bar the plaintiff’s claims because the plaintiff “does not complain of

injuries caused by the state court judgment.”

Instead, the court held, the alleged litigation

misconduct was “simply ratified, acquiesced in, or left unpunished by the state court judgment,”

and, because the plaintiff did not seek to undo the state court judgment, Rooker-Feldman did not

bar the federal action.

(internal quotation marks and citation omitted).

But the Seventh Circuit came to the opposite conclusion in a case presenting similar

circumstances. In Andress v. Daubert Law Firm, LLC,

(7th Cir. 2016), the

plaintiff brought a federal action in which he alleged that the defendants had procured a default

judgment in a state-court debt collection action in violation of the FDCPA by, among other things,

concealing “the identity of the real party in interest.”

. The Seventh Circuit concluded

the Rooker-Feldman doctrine barred the plaintiff’s FDCPA claims because none of the alleged

violations “could have resulted in injury independent of the judgment or the subsequent

5 Interestingly, a later panel of the Sixth Circuit, without citing to Todd, came to the opposite conclusion in an unpublished decision. In Kafele v. Lerner, Sampson & Rothfuss, L.P.A.,

(6th Cir. 2005), the plaintiff bought an FDCPA claim following a foreclosure action on his home in state court, alleging that the state court judgment was procured by “willful fraud” as the named defendants and their attorneys brought the foreclosure action “without being holders in due course of their claims.”

. The court held that Rooker-Feldman precluded exercise of federal jurisdiction because “there is simply no way for this or any other court to grant relief without disturbing the judgments of foreclosure entered by the state court.”

The court thought the plaintiffs’ gambit particularly “brazen” because they had not appeared in the state court proceedings. See

11 garnishment orders.”

The parties here acknowledge each of the circuit court decisions cited

above, and try to distinguish them in a manner that benefits their respective positions.

In this court’s view, while these decisions serve as helpful guideposts, none provide the

answer for all claims in this case. Instead, guided by the Supreme Court’s admonition that Rooker-

Feldman rests on “narrow ground,” Exxon Mobile,

, the court concludes that some

of Plaintiffs’ claims are barred by the Rooker-Feldman doctrine, while others are not. See Stanton

v. District of Columbia,

(D.C. Cir. 1997) (finding that Rooker-Feldman barred

some claims but not others).

The court’s conclusion turns on the showings that Plaintiffs must make to prove each claim

and the relief sought. Take Plaintiffs’ RICO claims, Counts I and II. They allege that Defendants

engaged in a pattern of racketeering activity that included “obtaining unlawful judgments” and

“receiving, investing and reinvesting income derived from unlawful L2L debt collection lawsuits.”

Second Am. Compl. ¶¶ 87–88. Plaintiffs also allege that Defendants’ unlawful acts, including

securing the allegedly unlawful judgments, proximately caused them harm. Id. ¶ 90. They seek

“judgment in their favor . . . for treble damages suffered by them as a result of the Defendants’

predicate acts and violations.” Id. ¶ 91. If Plaintiffs’ RICO allegations are proven true, it would

mean that the state court judgments against Plaintiffs are “unlawful” and would result in an award

of damages that would be tied directly to payments made to satisfy the judgments, e.g., the $5

monthly paid by Davis to Weinstock, see id. ¶ 45. Therefore, as pleaded, Plaintiffs’ RICO claims

“invite[ ] district court review and rejection” of the Superior Court judgments, a consequence

barred by Rooker-Feldman. Exxon Mobile,

. The same outcome would result if

Plaintiffs were to prevail on their claims for unjust enrichment, Count III, and abuse of process,

Count VI. In those claims, Plaintiffs assert, respectively, that “it would be inequitable for the

12 Defendants to retain any amounts obtained from Plaintiffs without returning the value thereof in

that such amounts are not owed to the Defendants,” id. ¶ 100, and that Defendants’ ulterior motive

in misusing the legal process was to, among other things, “obtain[ ] unlawful judgments” and

secure “payments for unlawful amounts,” id. ¶¶ 135, 137. Thus, like Plaintiffs’ RICO claims, their

common law tort claims allege that their harms flow from the D.C. Superior Court judgments and

seek review and rejection of those judgments. Rooker-Feldman bars jurisdiction as to those causes

of action. See Croley,

at *5.

A different result obtains as to Plaintiffs’ federal and District of Columbia unfair debt

collection practices claims, Counts IV and V, respectively. These claims, as pleaded, are

“independent” of the Superior Court judgments. See Skinner,

(holding that

Rooker-Feldman did not apply because the plaintiff did not “challenge the adverse [state-court]

decisions themselves”). In these two counts, Plaintiffs allege injuries caused by the filing of the

allegedly false Maiorca affidavit, not from the judgments themselves. See Todd,

;

Gabriele, 503 F. App’x. at 92. For instance, the FDCPA claim alleges only that EduCap and

Weinstock violated the statute by “falsely claiming Plaintiffs entered into a written promissory

note with EduCap,” Second Am. Comp. ¶ 104, and “falsely claiming that EduCap was the real

party in interest when HSBC owned, sold, or securitized the loans,” id. ¶ 105; see also id. ¶¶ 120–

21 (making similar allegations in facts underlying D.C. Debt Collection Law claim). Moreover,

the FDCPA claim and its D.C. analog do not seek to declare the underlying judgments to be

unlawful or demand the return of payments made to satisfy those judgments. Instead, they seek

compensatory and punitive damages arising from the alleged unfair debt collection practice itself.

See id. ¶¶ 129–30. Accordingly, even though Plaintiffs’ success on their unfair debt collection

practices claims would deny the conclusion that EduCap had standing to bring the collection

13 actions, those claims are sufficiently independent of the judgments themselves to avoid the

Rooker-Feldman bar.

Having concluded that Rooker-Feldman prohibits review of some of Plaintiffs’ claims, the

court turns to Plaintiffs’ alternative argument that Rooker-Feldman does not apply when, as here,

the state court judgment is procured by fraud. See Pls.’ Opp’n at 9–10 n.69 (quoting Kafele,

). The court finds that, even if the fraud exception applies, it would not help

Plaintiffs. The fraud exception to the Rooker-Feldman doctrine allows a federal court to “entertain

a collateral attack on a state court judgment which is alleged to have been procured through fraud,

deception, accident or mistake which . . . deceived the Court into a wrong decree[.]” Sun Valley

Foods Co. v. Detroit Marine Terminals Inc. (In re Sun Valley Foods Co.),

(6th

Cir. 1986) (quoting Resolute Ins. Co. v. North Carolina,

(4th Cir. 1968), which

discusses a fraud exception to res judicata, not Rooker-Feldman). The D.C. Circuit has never

expressly embraced the fraud exception in a published decision, but it has acknowledged it in an

unpublished opinion, Scott v. Frankel, No. 15-5028,

(D.C. Cir. June 8, 2015)

(per curiam). In Frankel, the court recognized that the fraud exception to the Rooker-Feldman

doctrine is limited to cases of “extrinsic fraud.”

at *1 (citing Kougasian v. TMSL, Inc.,

(9th Cir. 2004)). “Extrinsic fraud is conduct which prevents a party from

presenting his claim in court.”

(quoting Kougasian,

). The court in Frankel

held that, even if it were to recognize the exception, it would not apply in that case because

“appellant has not suggested any reason why he could not have presented his claims of fraud in

the state court [ ] proceeding.”

The same is true here. Plaintiffs offer no reason why the alleged falsehood contained in

the Maiorca Affidavit prevented them from challenging EduCap’s standing to collect on their

14 debts. As Plaintiffs admit, Quick and Davis both took out loans that originated with HSBC that,

per the terms of the loan documents, obligated them to repay HSBC. See Second Am.

Compl. ¶¶ 19–20; 25–27. Further, Plaintiffs concede that EduCap’s name appeared only

“peripherally in the loan documents[,] as entitled to service loans by reviewing and receiving loan

applications, processing forbearances, and checking borrower credit and income.” Id. ¶ 39. The

actual loan documents, copies of which were attached to each of the complaints against Quick and

Davis, confirm these allegations. First, the Truth in Lending Disclosure Statement for both

Plaintiffs identifies the “LENDER” as HSBC and provides that the borrower “promise[s] to pay

HSBC Bank USA, N.A. the loan Amount with interest at a Variable Rate.” See Quick Compl. at

21–22; Davis Compl. at 22–23. Second, the “Combined Private Education Loan Education Loan

Application and Promissory Note” for both Plaintiffs defines “HSBC Bank USA, National

Association” as the counterparty to the loan agreement. See Quick Compl. at 12; Davis Compl. at

10. Finally, Davis’s relative’s loan disbursement check was issued by “HSBC Bank USA, N.A.”

Davis Compl. at 26. Thus, even if the Maiorca Affidavit falsely represented that Plaintiffs had

entered into written promissory notes with EduCap, the documents attached to the complaints

informed them that HSBC was their original lender and provided Plaintiffs ample fodder with

which to challenge EduCap’s standing to bring suit. Therefore, the fraud alleged in this case is not

“extrinsic” and falls outside the bounds of the fraud exception to the Rooker-Feldman doctrine.

In sum, the court lacks subject-matter jurisdiction under the Rooker-Feldman doctrine to

hear Plaintiffs’ RICO, unjust enrichment, and abuse-of-process claims. Accordingly, those claims

are dismissed. Jurisdiction as to Plaintiffs’ federal and District of Columbia statutory unfair debt

collection practices claims is not, however, barred by Rooker-Feldman.

15 2. Article III Standing

The court now arrives at the two standing questions: (1) whether Plaintiffs have standing

to allege claims against HSBC, and (2) whether Quick has standing to assert his claims at all. The

plaintiff bears the burden of establishing the three elements of constitutional standing: (1) that the

plaintiff “suffered an injury in fact”; (2) that there exists a “causal connection between the injury

and the conduct complained of”; and (3) that it is “likely, as opposed to merely speculative, that

the injury will be redressed by a favorable decision.” 504 U.S. at 560–61. At the pleading stage,

the plaintiff “must clearly . . . allege facts demonstrating” each element. Spokeo, Inc. v. Robins,

(2016) (internal quotation marks and citation omitted). The court must

“accept the well-pleaded factual allegations as true and draw all reasonable inferences from those

allegations in the plaintiff's favor.” Arpaio v. Obama,

(D.C. Cir. 2015). However,

“[t]hreadbare recitals of the elements of [standing], supported by mere conclusory statements, do

not suffice.”

(quoting Ashcroft v. Iqbal,

, (2009)) (alterations original). The

court also need not “accept inferences that are unsupported by the facts set out in the complaint.”

(quoting Islamic Am. Relief Agency v. Gonzales,

(D.C. Cir. 2007)). Thus,

to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,

to assert a claim of standing that is plausible on its face. See

a. Plaintiffs’ Standing to Assert Claims Against HSBC

HSBC argues that Plaintiffs have not made out a plausible claim of standing against it,

because the complaint fails to allege injury that is “fairly traceable” to HSBC’s alleged misconduct.

HSBC’s Mem. at 13–14. The causal connection element of standing asks whether the complained-

of injury is “fairly traceable to the challenged action of the defendant, and not the result of the

independent action of some third party not before the court.” Lujan,

(cleaned up).

16 The required causal relationship should not be confused with tort concepts such as proximate

cause. See Lexmark Int’l, Inc. v. Static Control Components, Inc.,

, 1391 n.6

(2014). Rather, “[c]ausation, or ‘traceability,’ examines whether it is substantially probable that

the challenged acts of the defendant, not of some absent third party, [ ] cause[d] the particularized

injury of the plaintiff.” Orangeburg, S.C. v. Fed. Energy Regulatory Comm’n,

(D.C. Cir. 2017) (quoting Fla. Audubon Soc’y v. Bentsen,

(D.C. Cir. 1996)

(en banc)).

Having carefully scrutinized Plaintiffs’ pleading, the court agrees with HSBC that

Plaintiffs have not “clearly . . . allege[d] facts demonstrating” that Plaintiffs’ claimed injuries are

“fairly traceable” to actions by HSBC as to any claim. See Spokeo,

(internal

citation omitted). In so holding, the court is mindful that it must take care “not to decide the

questions on the merits for or against the plaintiff, and must therefore assume that on the merits

the plaintiffs would be successful in their claims.” City of Waukesha v. EPA,

(D.C. Cir. 2003). The court reaches its conclusion because Plaintiffs’ pleading alleges no conduct

on the part of HSBC related to the alleged unlawful debt collection action against them.

The only factual allegations concerning HSBC relate to its participation in the investment

arrangement operated by the L2L Partnership. Beyond that, the complaint is silent as to any

conduct by HSBC. Plaintiffs maintain that, in mid-2007, the L2L Partnership essentially collapsed

due to market conditions, as EduCap was unable to continue to purchasing student loans. Second

Am. Compl. ¶ 69. To improve its balance sheet, HSBC undertook various loan transactions that

resulted in HSBC “hav[ing] no legal right, title or interest in the loans.” See

6 Plaintiffs further

6 As noted earlier, supra n. 4, other allegations are to the contrary, claiming that HSBC actually owned the loans at the time of the collection actions. See id. ¶¶ 53–54; see also ¶ 69 (noting that HSBC “repurchased certain loans from EduCap”).

17 aver that, while HSBC changed course regarding the selling of its loans, “Educap hatched a plan

to use the courts to obtain borrower payment proceeds for defaulted loans,” and that “Educap has

been attempting to recover, for themselves, borrower payment proceeds that should have gone”

elsewhere. See id. ¶ 71 (emphases added); see also ¶ 73 (describing collecting on defaulted loan

payments as “EduCap’s scheme”). To carry out this scheme, “EduCap used HSBC’s name in

fraudulently concealing” EduCap’s status as a debt collector, and it retained Weinstock to

represent it in collection proceedings. Id. ¶ 47. Importantly, Plaintiffs concede the absence of any

relationship between HSBC and Weinstock: “During this period, Weinstock only represented

EduCap. Weinstock was not employed by HSBC, retained by HSBC, did not have an

attorney/client relationship with HSBC, and was not compensated by HSBC.” Id. ¶ 38. Thus,

Weinstock’s actions, as counsel, cannot be attributed to HSBC. In sum, although HSBC’s name

is splashed all over the complaint, one searches in vain to find any alleged action it actually took

in furtherance of the alleged unlawful debt collection scheme. Plaintiffs’ Second Amended

Complaint therefore does not contain sufficient factual matter, accepted as true, to establish that

their injuries are “fairly traceable” to HSBC. See Arpaio,

. Thus, they lack standing

to assert claims against HSBC. Cf. Muir v. Navy Fed. Credit Union,

, 1105–06

(D.C. Cir. 2008) (finding that an FDCPA plaintiff had sufficiently pleaded the causation element

of constitutional standing with regard to a defendant debt collector by alleging that the debt

collector and the plaintiff’s credit union “worked in concert . . . to convert [funds] from the

Plaintiff’s Account” (alteration in original) (quoting the plaintiff’s complaint)).

Plaintiffs defend their pleading as to HSBC’s standing primarily by pointing to the fact

that, in Quick’s and Davis’s debt collection cases, Weinstock moved more than once to substitute

HSBC as the plaintiff. See Pls.’ Opp’n at 17 & n.125. These allegations, Plaintiffs insist, establish

18 that HSBC’s actions are “directly related” to Plaintiffs’ injuries, as HSBC gave “tacit approval of

approval of Weinstock and EduCap[’s] unlawful conduct on behalf of HSBC,” as evidenced by

“Defendants . . . carpet-bombing thousands of L2L borrowers in HSBC’s name for more than a

decade without renunciation.” Pls.’ Opp’n at 17–18. Plaintiffs, however, fail to include any “tacit

approval” theory in their Second Amended Complaint, either as a factual matter or as a basis for

liability, which is fatal. See Middlebrooks v. Godwin Corp.,

, 87 n.4 (D.D.C.

2010) (“[A] plaintiff may not amend her complaint by the briefs in opposition to a motion to

dismiss.”), aff’d,

(D.C. Cir. 2010). Moreover, the complaint’s allegations

concerning substituting HSBC as debt-collection plaintiffs do not implicate HSBC, as they relate

only to conduct by EduCap and Weinstock. See Second Am. Compl. ¶ 42 (“Weinstock moved to

change the caption . . .”); id. ¶ 46 (same); id. ¶ 44 (“Weinstock again moved to change the

caption”); id. ¶ 47 (“EduCap used HSBC’s name”); id. ¶ 48 (same). The contention that Weinstock

had no relationship with HSBC only underscores the implausibility of Plaintiffs’ insistence that

HSBC caused it harm. Id. at ¶ 38. 7 The Second Amended Complaint, although often invoking

HSBC’s name, does not allege any conduct by HSBC that is “fairly traceable” to Plaintiffs’

claimed injuries. Accordingly, Plaintiffs’ claims are dismissed against HSBC for lack of standing.

b. Quick’s Standing

Next, the court addresses whether Quick has standing to bring his claims, although neither

party has briefed the issue. See Arbaugh v. Y&H Corp.,

(2000) (noting that

federal courts have an independent obligation to determine whether subject-matter jurisdiction

exists). Unlike Davis, Quick did not appear in the debt collection action and he has made no claim

7 Elsewhere, Plaintiffs claim that EduCap and HSBC are all jointly liable for “the acts and practices” of which Plaintiffs complain because all were “agents of the L2L partnership.” See Second Am. Compl. ¶ 17. But that is no more than a legal conclusion, which is not entitled to a presumption of truth. Papasan v. Allain,

(1986) (“[W]e are not bound to accept as true a legal conclusion couched as a factual allegation.”).

19 of payment to satisfy the default or efforts to enforce the default judgment. See Pls.’ Opp’n at 16

(acknowledging the D.C. Superior Court judgment against Quick was a default judgment);

Hr’g Tr. (draft), April 18, 2018, at 4–5. Quick alleges injury in the form of “stress, anxiety,

agitation, annoyance, emotional distress, and undue inconvenience,” and “actual damages,

including attorney’s fees and costs resulting from the Defendants’ unlawful debt collection

practices.” Second Am. Compl. ¶¶ 75–76. The attorney’s fees, however, are those incurred in this

action. See Hr’g Tr. at 5. Based on these allegations, the court finds that Quick has standing to

press some of claims against EduCap and Weinstock, but not others. See Davis v. Fed. Election

Comm’n,

(2008) (“[A] plaintiff must demonstrate standing for each claim he

seeks to press and for each form of relief that is sought.” (internal quotation marks and citation

omitted)).

Quick lacks standing to advance RICO claims. “A RICO plaintiff only has standing if, and

can only recover to the extent that, he has been injured in his business or property by reason of the

conduct constituting the violation.’” Holmes v. Sec. Inv’r Prot. Corp.,

(1992)

(cleaned up). Quick does not claim any injury to business or property: He has not paid a cent to

any Defendant as a result of the debt collection action. And the attorney’s fees and costs that he

has incurred in bringing this action, see Hr’g Tr. at 5, are not an adequate injury, as the “mere fact

that continued adjudication would provide a remedy for an injury that is only the byproduct of the

suit itself does not mean that an injury is cognizable under Art[icle] III.” Diamond v. Charles,

, 70–71 (1986). Accordingly, Quick lacks standing to bring a RICO claim.

The same is true for the unjust enrichment claim. By failing to allege that he has paid or

otherwise conferred a benefit on any Defendant, Quick has failed to allege an injury-in-fact as to

that claim. See Bregman v. Perles,

(D.C. Cir. 2014) (stating that an essential

20 element of an unjust enrichment claim is that plaintiff conferred a benefit on defendant).

Accordingly, Quick’s unjust enrichment claim must be dismissed.

Quick, however, has alleged a sufficient injury with respect to his statutory unfair debt

collection practice claims and abuse of process claim. For purposes of the FDCPA, a plaintiff is

not required to show actual damages; an attempt to collect money in violation of the FDCPA will

suffice. See Molina v. FDIC,

, 320–21 (D.D.C. 2012) (citing Miller v. Wolpoff

Abramson, LLP,

(2d Cir. 2003)). The District of Columbia Debt Collection

Law (“DCDCL”) likewise makes it unlawful to use fraudulent acts to “attempt to collect claims.”

(f). Additionally, emotional distress damages are recoverable for an abuse-

of-process claim, which Quick claims to have suffered. Cf. Restatement (Second) of Torts § 670

(1977) (providing that damages for “emotional distress resulting from the bringing of the

proceedings” are available for the tort of malicious prosecution). Quick therefore has standing to

assert claims under the FDCPA, the DCDCL, and for abuse of process.

B. Dismissal Under Rule 12(b)(6)

Defendants also argue that dismissal of all claims is warranted under Rule 12(b)(6) for

multiple reasons: (1) the doctrine of res judicata precludes Plaintiffs from bringing these claims;

(2) Plaintiffs have failed to allege any facts to support their claims against HSBC; (3) Plaintiffs

have failed to allege facts sufficient to make out each of their claims; and (4) the FDCPA claim is

barred by the statute of limitations. For the reasons that follow, the court grants Defendants’

motions to dismiss for failure to state a claim.

1. Res Judicata

The question here is whether Plaintiffs are precluded from bringing claims that they have

not asserted previously. The operative legal construct therefore is claim preclusion. See Allen v.

21 McCurry,

(1980) (explaining that claim preclusion bars the relitigating of issues

that could or were raised in the prior action). When evaluating whether claim preclusion operates

to bar a subsequent lawsuit, courts look to whether the prior litigation “(1) involv[ed] 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.” Smalls v. United

States,

(D.C. Cir. 2006). As the earlier cases involved judgments rendered by

the D.C. Superior Court, District of Columbia law determines their preclusive effect. See

Youngin’s Auto Body v. District of Columbia,

(D.D.C. 2011).

The parties here dispute only the first and third elements. As to the third element—the

existence of a valid, final judgment—Plaintiffs contend that “[c]onsent and default judgments . . . do

not constitute res judicata.” Pls.’ Opp’n at 15. This is wrong. Under District of Columbia law,

“[c]onsent decrees generally are treated as final judgments on the merits and accorded res judicata

effect.” Williams v. Gerstenfeld,

(D.C. 1986). Likewise, District of Columbia

law treats a default judgment as a final adjudication on the merits for res judicata purposes. See

Croley v. Winberg, Civ.A. 94-7891,

, at *2 (D.D.C. Apr. 28, 1995) (citing Thomas

v. Marvins Credit, Inc.,

(D.C. 1950) and Woods v. Canaday,

(D.C. Cir. 1946)). Accordingly, the third element of claim preclusion is satisfied here.

That leaves the first element, the “so-called identity element,” which concerns the

relatedness of the actions. See Capitol Hill Grp. v. Pillsbury, Winthrop, Shaw, Pittman, LLC,

(D.C. Cir. 2009). This element is satisfied “when the cases are based on the same

nucleus of facts because it is the facts surrounding the transaction or occurrence which operate to

constitute the cause of action, not the legal theory on which a litigant relies.”

(internal quotation

marks and citation omitted). Put another way, “claim preclusion is also intended to prevent

22 litigation of matters that should have been raised in an earlier suit.” Nat. Res. Def. Council v. EPA,

(D.C. Cir. 2008) (internal quotation marks and citation omitted). Defendants

argue the current litigation is barred because Plaintiffs could have challenged EduCap’s standing,

the validity of Maiorca’s affidavit, and the terms of the loan, in the D.C. Superior Court actions.

See HSBC’s Mem. at 18–19; EduCap & Weinstock’s Mem. at 13–14. Plaintiffs, meanwhile,

contend that res judicata is no bar here because the earlier cases concerned “the enforceability of

the promissory notes,” not as in this case compliance with federal and District of Columbia law.

See Pls.’ Opp’n at 18–19; accord Pls.’ Reply at 3 (characterizing their federal action as one

“concern[ing] the Defendants’ conduct in collecting the debts, not the validity of the underlying

loans or judgments”).

Defendants have the better argument. The core matter to which Plaintiffs now object—

that EduCap fraudulently established its standing in the debt collection actions through filing of

the false Maiorca Affidavit—could have been litigated before the D.C. Superior Court. Standing

is an essential element of any claim, and the lack of standing is hardly an obscure defense.

As detailed above, Plaintiffs had ample opportunity and information to make that challenge against

EduCap in the collection actions. Plaintiffs themselves knew that HSBC had issued the student

loans, as their loan documents make clear. And, even if they had forgotten that fact at the time of

the litigation, the loan documents attached to the debt-collection complaints put Plaintiffs on notice

that they had not, as Maiorca attested, “entered into a written promissory note with EduCap,” see

Quick Compl. at 4; Davis Compl. at 4, but rather had with HSBC. Thus, Plaintiffs could have

contested EduCap’s standing to bring the actions simply by pointing to the records attached to the

complaints, which identified HSBC as the loans’ issuer. Thus, the cases recited by Plaintiff that

stand for the principle that an unlawful debt collection practice and the debt itself do not share a

23 common nucleus of facts, see Pls.’ Opp’n at 14 n.102, have no bearing here. Because this case

and the collection actions involve the “same nucleus of facts,” res judicata precludes Plaintiffs

from bringing their claims. Cf. Gerstenfeld, 514 A.2d at 1179–80 (holding that res judicata applied

to preclude home owners’ suit to enjoin foreclosure where they had the opportunity but failed to

challenge the validity of the debt in bankruptcy proceedings). 8

Plaintiffs offer additional arguments for why res judicata does not apply, but none are

persuasive. Plaintiffs assert that res judicata cannot apply here because, as courts have consistently

held, FDCPA lawsuits are not compulsory counterclaims. See Pls.’ Opp’n at 15. There are two

problems with this line of argument. First, as noted previously, the focus of claim preclusion is

not on a particular legal theory or claim, but rather on facts of the transaction or occurrence at

issue. Thus, the fact that an FDCPA claim may not be a compulsory counterclaim is not

dispositive. Second, under District of Columbia law, claim preclusion reaches more than

compulsory counterclaims. See Capitol Hill Grp.,

. It also reaches permissible

counterclaims “when the relationship between the counterclaim and the plaintiff’s claim is such

that the successful prosecution of the second action would nullify the initial judgment or impair

the rights established in the initial action.”

(internal quotation marks and citation omitted).

Here, if Plaintiffs were to prove that EduCap obtained standing in the D.C. Superior Court matters

through fraud, that would effectively prevent EduCap, and perhaps others, from enforcing those

D.C. Superior Court judgments. No court would allow EduCap to collect on a judgment

determined to have been unlawfully obtained. So, even if Plaintiffs’ claims are permissible

counterclaims, they are barred by res judicata.

8 This same analysis applies equally to Plaintiffs’ contention that they were deceived by Defendants’ inclusion of a contingency-based attorney’s fee, when the loan agreement contained no such provision. Plaintiffs had the agreement before them to contest the legitimacy of the attorney’s fee demand.

24 Additionally, Plaintiffs insist that the “fraudulent concealment” exception to res judicata

applies here. See Pls.’ Opp’n at 15. It does not. Fraudulent concealment is a recognized exception

to res judicata, see Pierce v. SEC,

(D.C. Cir. 2015), but not every alleged

fraud qualifies. “Fraud by a party will not undermine the conclusiveness of a judgment unless the

fraud was extrinsic, that is, it deprived the opposing party of the opportunity to appear and present

the party’s case.” 46 Am. Jur. 2d, Judgments § 516; cf. Laufer v. Westminster Brokers, Ltd.,

(D.C. 1987) (stating, in the context of a defense to an enforcement action, that “the

only type of fraud that may justify non-enforcement of an otherwise valid judgment of any court

of competent jurisdiction . . . is extrinsic fraud”). In Laufer, for instance, the D.C. Court of Appeals

rejected the party’s claim that the fraud exception applied “because the issue of [the opposing

party’s] alleged fraud was one which might have been litigated in the original action.”

. So it is here. The fraud that Plaintiffs allege is not extrinsic. The alleged misrepresentation

contained in the Mairoca Affidavit did not prevent Plaintiffs from contesting EduCap’s standing

in the debt collection actions, as explained above. The fraudulent concealment exception therefore

does not save Plaintiffs from the res judicata effect of the adverse D.C. Superior Court judgments.

2. Failure to State Any Claim Against HSBC

For the same reasons Plaintiffs have failed to allege that their claimed injuries are “fairly

traceable” to HSBC, they have failed to allege sufficient factual matter to support a plausible claim

against HSBC. Once more, the Second Amended Complaint contains no facts connecting HSBC

to the alleged scheme to defraud defaulted borrowers by misrepresenting EduCap’s standing to

bring collection actions. Accordingly, the court also dismisses all claims against HSBC for failure

to state a claim.

25 3. Failure to State Cognizable Claims

Defendants also argue that all of Plaintiffs’ claims must be dismissed for failure to state

cognizable claims. The court agrees that Plaintiffs’ pleading of their RICO and FDCPA claims is

fatally deficient. And, because the court dismisses Plaintiffs’ federal claims, the court declines to

exercise supplemental jurisdiction over Plaintiffs’ remaining state law claims and dismisses them

for that reason. See

.

a. Substantive civil RICO claims

Plaintiffs’ RICO claims fail because Plaintiffs do not plead two essential elements: (1) a

pattern of “racketeering activity,” which is demonstrated by the commission of at least two

predicate offenses, and (2) an “enterprise.” See

(a), (c); see also

(5) (defining “pattern of racketeering activity”). As to the first of those elements, Plaintiffs

allege “mail fraud” to be the predicate “racketeering activity”—a contention based exclusively on

the mailing of the Maiorca Affidavits. See Second Am. Compl. ¶¶ 35–36; Pls.’ Opp’n at 21–25.

The fatal flaw of this allegation is that courts do not allow “‘litigation activities,’ such as filing

fraudulent documents or engaging in baseless litigation to serve as predicate acts for RICO,”

“where such acts constitute the only alleged fraudulent conduct.” Feld Entm’t, Inc. v. Am. Soc’y

for the Prevention of Cruelty to Animals,

(D.D.C. 2012) (first emphasis

added) (quoting Daddona v. Gaudio,

(D. Conn. 2000)); accord E. Sav.

Bank, FSB v. Papageorge,

(D.D.C. 2014) (“Abusive or sham litigation does

not constitute a predicate act.” (citing cases)). That principle squarely applies here.

In an attempt to avoid this well-accepted barrier, Plaintiffs argue that the mailing of the

affidavit is not “litigation activity” because it was created and mailed prior to the filing of the

litigation in D.C. Superior Court. See Hr’g Tr. at 18–20. This distinction is nonsensical. The

26 mailed Maiorca Affidavit, even if assumed to be false, was created solely for the purpose of

initiating litigation. It was of no legal consequence until filed in the collection actions; the mere

mailing of the falsified document would not constitute mail fraud. See

. Indeed,

Plaintiffs implicitly acknowledge as much, alleging that the affidavit was sent “to network

attorneys across the United States . . . to attach to EduCap’s debt collection lawsuits.” Second

Am. Compl. ¶ 36. As Plaintiffs’ RICO claim is premised entirely on mailings done for the purpose

of litigation activity, they have failed to state a claim. 9

Plaintiffs also fail to allege the existence of a RICO “enterprise.” A RICO enterprise is

defined as “any . . . partnership . . . association . . . [or] group of individuals associated in fact

although not a legal entity.”

(4). An association-in-fact “must have three

structural features: ‘a purpose, relationships among those associated with the enterprise, and

longevity sufficient to permit these associates to pursue the enterprise’s purpose.’” United States

v. Eiland,

(D.C. Cir. 2013) (quoting Boyle v. United States,

(2009)). Individuals who act independently and without coordination, however, cannot constitute

a RICO enterprise. See Boyle,

n.4.

The Second Amended Complaint asserts that “Defendants” violated the statute through

their association with “the L2L enterprise.” See Second Am. Compl. ¶¶ 87–88. But if by that

Plaintiffs mean the original securitization vehicle, the L2L Trust—and it appears that they do, see

Pls.’ Opp’n at 32–34—then their own complaint pleads away the possibility that this entity could

serve as a RICO enterprise. By Plaintiffs’ own allegations, the L2L Trust “began to unravel in a

failure of colossal proportions” following the recession in 2007, as EduCap was “unable to

9 Given the court’s resolution of this claim, it does not address Defendants’ alternative argument: That Plaintiffs have failed to meet the heightened pleading requirements for fraud claims, as required by Rule 9(b) of the Federal Rules of Civil Procedure. See HSBC’s Mem. at 27–28; EduCap & Weinstock’s Mem. at 16–18.

27 continue purchasing L2L loans as agreed,” which, in turn, necessitated that HSBC take other

financial measures to improve its balance sheet. See Second Am. Compl. ¶¶ 68–69. This “failure

of colossal proportions” occurred five years before EduCap filed suit against Quick. See id. ¶ 22.

As the L2L Trust ended, so too did any association among Defendants that might have satisfied

the statute’s definition of an enterprise. Moreover, Plaintiffs’ allegations belie interconnectedness

among all Defendants. Weinstock is not alleged to have any role in the L2L Trust. Only EduCap

and Weinstock are implicated in filing the collection actions. Id. ¶¶ 34–36, And Weinstock was

neither employed, retained nor compensated by HSBC for those purposes. Id. ¶ 38. Thus, as

alleged, the so-called “L2L enterprise” did not share the same purpose, did not have mutually

dependent relationships, and did not have the longevity to pursue the alleged purposes. It therefore

was not an “enterprise” for purposes of RICO.

b. Civil RICO conspiracy claim

In addition, Plaintiffs allege that the trio of defendants conspired to commit violations of

the RICO statute. Second Am. Compl. ¶ 89; see

(d). The RICO conspiracy

provision makes it “unlawful for any person to conspire to violate any of the provisions of

subsection (a), (b), or (c) of [

].”

(d). The pleading deficiencies

in Plaintiffs’ substantive RICO allegations mean that its conspiracy claim also fails.

4. Fair Debt Collection Practices Act

Plaintiffs’ FDCPA claim is against EduCap and Weinstock only, and those defendants seek

dismissal of the claim on two grounds: (1) it is time-barred under the FDCPA’s one-year statute

of limitations; and (2) it fails to allege that EduCap and Weinstock handled Plaintiffs’ loans only

after they defaulted, as is required to be subject to the FDCPA, see Parker v. BAC Home Loans

Servicing LLP,

(D.D.C. 2011). See EduCap & Weinstock’s Mem. at 28–

28 30. Because the court concludes that Plaintiffs’ claim is time-barred, it does not analyze EduCap

and Weinstock’s alternative basis for dismissal.

The FDCPA requires actions to enforce liability under the Act be brought “within one year

from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). In cases such as this one,

where the FDCPA claim is premised on the wrongful filing of a debt collection action, federal

appellate courts generally have held that the claim accrues when the debtor is served with the

complaint, as that is the date when the debtor receives notice of the action. See, e.g., Lyons v.

Michael & Assocs.,

, 1171–72 (9th Cir. 2016); Serna v. Law Office of Joseph

Onwuteaka, P.C.,

, 446–48 (5th Cir. 2013). But see Smith v. Lerner, Sampson &

Rothfuss, L.P.A.,

(6th Cir. 2016) (using date of filing as date of accrual).

Applying this approach, Plaintiffs’ FDCPA claim would be time barred: They did not file this

action within one year of service, and they do not contend otherwise. See Pls.’ Opp’n at 35

(arguing that “Quick and Davis’[s] claims are timely because Defendants fraudulently concealed

their conduct”).

Still, Plaintiffs argue that the statute of limitations should be tolled because Defendants

fraudulently concealed their actions, thus preventing Plaintiffs from learning of the violation. See

Pls.’ Opp’n at 35–37. They contend that the statute of limitations began to run only when the final

caption change to the debt-collection actions occurred. See

at 35–37. For Quick, that would

be May 16, 2017; for Davis, on April 24, 2017. Id. at 37. Fraudulent concealment is an “equitable

doctrine [that] is read into every federal statute of limitations,” which equitably tolls the statute of

limitations. Holmberg v. Armbrecht,

(1946). To prove fraudulent concealment,

a plaintiff must show that the defendant engaged in conduct designed to conceal evidence of their

wrongdoing, and that the plaintiff lacked actual or constructive notice of that evidence, despite

29 exercising diligence. Firestone v. Firestone,

(D.C. Cir. 1996) (citing Larson

v. Northrop Corp.,

(D.C. Cir. 1994)). “Generally, fraudulent concealment

requires that the defendant make an affirmative misrepresentation tending to prevent discovery of

the wrongdoing.”

Applying those principles here, Plaintiffs have failed to adequately plead fraudulent

concealment. For starters, Plaintiffs have not pleaded any affirmative misrepresentation by

EduCap or Weinstock that prevented them from discovering the falsity of the Maiorca Affidavit.

Although the Maiorca Affidavit itself purportedly contains a false and misleading statement,

neither EduCap nor Weinstock is alleged to have done anything to conceal its falsity. Moreover,

as already discussed, the loan documents attached to the complaints contained ample information

that should have alerted Plaintiffs—if they did not know already—that HSBC had issued their

now-defaulted loans, not EduCap. On the facts alleged in the Second Amended Complaint,

Plaintiffs cannot plausibly maintain that their claims are timely by operation of equitable tolling.

Plaintiffs also seek to avoid the limitations by arguing that the “continuing violations”

doctrine applies. Here, Plaintiffs insist that Defendants’ continued deceitful acts during the

litigation reach back to the events outside the one-year limitations period that precede the filing of

their FDCPA claim. Pls.’ Opp’n at 37. Under Plaintiffs’ proffered application of this doctrine, a

misrepresentation by Defendants during the statute of limitations period for Quick’s and Davis’s

FDCPA claims—here, the simple maintenance of the debt-collection action—would save the

claims from being time-barred. However, the federal appellate courts uniformly have held that the

continuing violation doctrine does not apply to the FDCPA. See Slorp v. Lerner, Sampson &

Rothfuss,

(6th Cir. 2014) (“No court of appeals has held that debt-collection

litigation (or a misleading statement made in connection with that litigation) is a continuing

30 violation of the FDCPA.” (citing Schaffhauser v. Citibank (S.D.) N.A.,

, 131 (3d

Cir. 2009) (per curiam) and Naas v. Stolman,

(9th Cir. 1997)); Gajewski v.

Ocwen Loan Servicing,

(7th Cir. 2016) (“The continuing violation doctrine,

which actually concerns cumulative violations, does not apply to a series of discrete acts, each of

which is independently actionable, even if those acts form a pattern of wrongdoing.” (internal

quotation marks and citation omitted)). The continuing violation doctrine therefore cannot save

Plaintiffs’ time-barred FDCPA claims from dismissal.

5. State Law Claims

Having dismissed Plaintiffs’ federal law claims, the court declines to exercise jurisdiction

over the remaining state law claims. See

(c); Anderson v. Holder,

(D.C. Cir. 2011) (permitting district court to decline to exercise supplemental jurisdiction

when it has dismissed all claims over which it has general jurisdiction). Accordingly, the court

does not address Defendants’ arguments under Rule 12(b)(6) for dismissing those claims.

C. Motion for Leave to Amend

In light of the court’s rulings, allowing Plaintiffs to amend their complaint would be futile.

See Foman v. Davis,

(1962). Accordingly, their Motion for Leave to Amend is

denied.

III. CONCLUSION

For the reasons stated, Defendants’ motions to dismiss, ECF Nos. 15, 17, are granted. The

court also denies Plaintiffs’ Motion for Leave to File Second Amended Complaint, ECF No. 24,

and therefore dismisses Plaintiffs’ First Amended Complaint with prejudice. See Firestone,

(“A dismissal with prejudice is warranted only when a trial court determines that the

31 allegation of other facts consistent with the challenged pleading could not possibly cure the

deficiency.” (citations and quotation marks omitted)).

A separate, final order accompanies this Memorandum Opinion.

Dated: July 12, 2018 Amit P. Mehta United States District Judge

32