UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) ESTATE OF CAROLYN J. MICKENS, ) et al., ) ) Plaintiffs, ) ) v. ) No. 18-cv-928 (KBJ) ) U.S. BANK NATIONAL ) ASSOCIATION, et al., ) ) Defendants. ) )

MEMORANDUM OPINION

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. ¶¶ 10–

12.) 4 Several years later, in 2001, Mickens filed a petition for Chapter 7 bankruptcy,

1 Page-number citations to the documents that the parties have filed refer to the page numbers that the Court’s electronic filing system automatically assigns. 2 Unless otherwise noted, the following allegations of fact are drawn from Plaintiffs’ second amended complaint and the attached exhibits. 3 Plaintiffs’ second amended complaint contains contradictory allegations regarding the timing of Mickens’s death. (Compare Second Am. Compl. ¶ 7 (stating that “Carolyn Mickens passed away on September 7, 2014”), with id. ¶ 29 (indicating that “Carolyn Mickens died in October 2016”).) However, it appears that the 2016 date is most likely the correct one, as Plaintiffs make several allegations that are inconsistent with Mickens having died in 2014. (See, e.g., id. ¶ 30 (alleging that “in September 2015, Defendants offered Carolyn Mickens a loan modification but turned around and withdrew the offer” and that “Carolyn Mickens was distraught by Defendants[’] false offer to modify the loan”).) 4 Nationscredit Financial Services Corporation was the original lender (Second Am. Compl. ¶ 10), and Litton Loan Servicing, LP was the original servicer of the loan (see id. ¶ 42). According to U.S. Bank and Ocwen, U.S. Bank acquired the loan in June of 2006 (see Exs. to Second Am. Compl., ECF No. 44-1, at 10), and Ocwen obtained the rights to service the loan in September of 2011 (see id. at 4).

2 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

5 The Superior Court foreclosure action is still pending; the parties are currently engaged in discovery and dispositive motions briefing. See Order, U.S. Bank Nat’l Ass’n v. Mickens, No. 2014-CA-5065 (D.C. Super. Ct. June 21, 2021).

3 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’

4 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”),

et seq. (id. ¶¶ 78–

99 (Counts One and Two)) 6; the Real Estate Settlement Procedures Act (“RESPA”),

et seq. (id. ¶¶ 100–37 (Count Three)); the Equal Credit Opportunity Act

(“ECOA”),

et seq. (id. ¶¶ 138–54 (Count Four)); the Truth in Lending

Act (“TILA”),

et seq. (id. ¶¶ 155–62 (Count Five)); the District of

Columbia Mortgage Lender and Broker Act (“MLBA”),

et seq.

(id. ¶¶ 163–67 (Count Six)); and the District of Columbia Consumer Protection

Procedures Act (“CPPA”),

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

¶¶ 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

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

6 Count One is asserted on behalf of Plaintiffs themselves (see Second Am. Compl. ¶¶ 85–86), while Count Two is brought on behalf of several putative classes of borrowers who were assessed similar allegedly unlawful fees (see

).

5 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,

(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.’

7 BWW also filed a separate motion to dismiss (see BWW’s Mot. to Dismiss, ECF No. 47), but that motion is moot in light of Plaintiffs’ voluntary dismissal of their claims against BWW (see Pls.’ Notice of Voluntary Dismissal).

6 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

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 “remove BWW as a party from this action” and

“remove paragraphs 60–64 of the Second Amended Complaint” (Pls.’ Mot. for Leave to

File Third Am. Compl., ECF No. 69, at 1). See also infra note 8 (denying as moot

Plaintiffs’ motion for leave to file third amended complaint).

III. DISCUSSION

As explained above, U.S. Bank and Ocwen seek dismissal of all of Plaintiffs’

legal claims for failure to state a claim under Rule 12(b)(6). (See Defs.’ Mot. at 19.)

However, this Court declines to pass on U.S. Bank and Ocwen’s arguments regarding

the legal sufficiency of Plaintiffs’ allegations, because Plaintiffs’ current pleading must

be dismissed for an even more fundamental reason: it fails to satisfy the minimal

pleading requirements set forth in Rule 8. See Fontaine v. JPMorgan Chase Bank,

N.A.,

(D.D.C. 2014) (explaining that courts may dismiss a

complaint sua sponte for failure to comply with Rule 8); Brown v. Wash. Metro. Area

Transit Auth.,

(D.D.C. 2016) (same). As a result, and for the

reasons explained below, the Court will dismiss the complaint with leave to amend, and

will deny U.S. Bank and Ocwen’s motion to dismiss as moot and without prejudice.

7 A. Plaintiffs’ Second Amended Complaint Fails To Meet Rule 8’s Clarity Standards

Rule 8 of the Federal Rules of Civil Procedure mandates that a complaint “must

contain . . . a short and plain statement of the claim showing that the pleader is entitled

to relief[,]” Fed. R. Civ. P. 8(a)(2), and further specifies that “[e]ach allegation” in a

complaint “must be simple, concise, and direct[,]” Fed. R. Civ. P. 8(d)(1). “Taken

together,” these provisions not only “underscore the emphasis placed on clarity and

brevity by the federal pleading rules[,]” Ciralsky v. CIA,

(D.C. Cir.

2004) (internal quotation marks and citation omitted), but also “set[] out a minimum

standard for the sufficiency of complaints in order to give fair notice of the claim[s]

being asserted and the grounds upon which they rest, so as to permit the adverse party

the opportunity to file a responsive answer, [and] prepare an adequate defense[,]”

Jiggetts v. District of Columbia,

(D.D.C. 2017) (internal quotation

marks and citation omitted). To satisfy Rule 8’s pleading requirements, “[t]he court or

opposing party must be able to understand whether a valid claim is alleged and if so

what it is.” Poblete v. Indymac Bank,

(D.D.C. 2009) (internal

quotation marks and citation omitted). Thus, “a complaint that is excessively long,

rambling, disjointed, incoherent, or full of irrelevant and confusing material will

patently fail [Rule 8’s] standard, and so will a complaint that contains an untidy

assortment of claims that are neither plainly nor concisely stated, nor meaningfully

distinguished from bold conclusions[.]” Jiggetts,

(internal quotation

marks and citation omitted). It is also well established that “[e]nforcing the

requirements of Rule 8(a) ‘is largely a matter for the trial court’s discretion.’” Jones v.

8 Granholm, No. 20-cv-472,

, at *15 (D.D.C. June 21, 2021) (quoting

Ciralsky,

).

In this Court’s view, Plaintiffs’ second amended complaint falls short of

satisfying Rule 8’s standards in several respects. First of all, many of Plaintiffs’ factual

allegations refer to “Defendants” collectively without specifying which of U.S. Bank,

Ocwen, or BWW allegedly took each action described in the complaint. (See, e.g.,

Second Am. Compl. ¶ 30 (“Defendants offered Carolyn Mickens a loan modification

but turned around and withdrew the offer on the claim that the offer was made in

error.”); id. ¶ 55(A) (“Defendants have since admitted that they were not the ‘holder’ of

the Note.”); id. ¶ 60 (“Defendants had scheduled a foreclosure sale of the Property for

November 20, 2017 at 12 pm (noon).”).) It is well settled that “a plaintiff cannot

satisfy the minimum pleading requirements under Rule 8 . . . by lumping all the

defendants together” and “providing no factual basis to distinguish their conduct.”

Toumazou v. Turkish Rep. of N. Cyprus,

(D.D.C. 2014) (internal

quotation marks and citation omitted); see also, e.g., Vantage Commodities Fin. Servs.

I, LLC v. Assured Risk Transfer PCC, LLC,

(D.D.C. 2018)

(observing that “collective pleading is inadequate” when a plaintiff makes “collective

allegations against unrelated defendants”). Such grouping of defendants runs afoul of

Rule 8 because it fails to “provide each defendant with fair notice of each claim and its

basis.” Toumazou,

(internal quotation marks and citation omitted).

Second, the operative complaint is deficient in its treatment of Plaintiffs. Some

of the complaint’s allegations refer to a singular “Plaintiff” but do not clarify whether

that term is intended to refer to Mickens, her estate, or Newman. (See, e.g., Second

9 Am. Compl. ¶ 39 (“On or about April 24, 2017, Plaintiff sent Ocwen a letter disputing

the charges and fees in the Payoff Quote.”); id. ¶ 46 (“On August 24, 2017, Plaintiff

sent Ocwen another letter requesting proof that Ocwen or US Bank was in possession of

the original Note and requesting certain information regarding the endorsement on the

Note.”); id. ¶ 85 (“Defendants’ violations caused the Plaintiff to endure damages

including out-of-pocket costs, legal fees defending the illegal foreclosure, fear of losing

the Property, [and] worry about where her loved ones will live . . . .”).) In addition, the

second amended complaint does not specify which Plaintiff is asserting each of the

legal claims that are presented in that pleading; with respect to the RESPA claim, for

instance, the complaint does not explain whether the relevant “borrower[,]”

(f), is Mickens, Mickens’s estate, or Newman (see, e.g., Second Am. Compl.

¶ 115). Nor does the complaint identify the applicable “consumer[,]”

(k)(1)(A), for purposes of the CPPA claim (see Second Am. Compl. ¶¶ 170–

74). These deficiencies prevent “[t]he court [and] opposing part[ies]” from

“understand[ing] whether a valid claim is alleged[.]” Poblete,

(internal quotation marks and citation omitted).

Third, and relatedly, the complaint appears to assume (without explanation) that

any claims Mickens may have had against U.S. Bank or Ocwen before her death

automatically passed to her estate. (Cf., e.g., Second Am. Compl. ¶¶ 156, 158 (alleging

that U.S. Bank and Ocwen violated TILA by “failing to transmit any periodic mortgage

statements to the Plaintiffs[,]” including “prior to the foreclosure”).) But not every

cause of action necessarily survives an individual’s death. See Fed. R. Civ. P. 25(a)(1)

(“If a party dies and the claim is not extinguished, the court may order substitution of

10 the proper party.” (emphasis added)); see also, e.g., United States v. NEC Corp.,

(11th Cir. 1993) (“In the absence of an expression of contrary intent, the

survival of a federal cause of action is a question of federal common law.”); United

States ex rel. Hood v. Satory Glob., Inc.,

(D.D.C. 2013)

(analyzing whether deceased plaintiff’s False Claims Act claims “are extinguished or

whether they survive his demise as part of his estate”). In this instant matter, Plaintiffs’

complaint contains no allegations that would permit U.S. Bank, Ocwen, or this Court to

assess whether any of Mickens’s legal claims survived her death such that her estate

may now assert them in this lawsuit.

Fourth, several of Plaintiffs’ allegations that appear to be critical to the viability

of their legal claims are wholly lacking in the factual detail that is necessary to enable

U.S. Bank and Ocwen to “prepare an adequate defense” to those claims. Jiggetts,

(internal quotation marks and citation omitted). For example, the parties

seem to agree that Ocwen’s alleged liability under TILA for failing to send mortgage

statements depends at least in part on whether Mickens remained personally obligated

on the mortgage after receiving a discharge in bankruptcy. (See Defs.’ Mot. at 41; Pls.’

Opp’n at 16–17.) But the second amended complaint merely alleges that, “[u]pon

information and belief, Carolyn Mickens reaffirmed the mortgage debt” (Second Am.

Compl. ¶ 14), and Plaintiffs provide no additional information about when or how

Mickens reaffirmed the debt as necessary to give rise to a plausible TILA claim in light

of the detailed statutory requirements for reaffirmation of a debt under bankruptcy law,

see

(c)–(d), (k). Likewise, with respect to their FDCPA claims,

Plaintiffs allege that they were assessed “unsubstantiated fees, inflated or excessive

11 fees, redundant or duplicative fees, bogus and invalid fees, unreasonable and

illegitimate fees and fees for services or actions that never occurred” (Second Am.

Compl. ¶ 81; see also

(C)), but the complaint does not identify which

specific fees Plaintiffs believe were unlawful, much less explain why those fees were

unreasonable or unnecessary. And Plaintiffs’ proposed third amended complaint, which

reflects the voluntary dismissal of their claims against BWW (see Pls.’ Mot. for Leave

to File Third Am. Compl. at 1), introduces yet another point of confusion: Plaintiffs

would delete paragraphs 60 through 64 of the second amended complaint (id.), which

concern the scheduling of a foreclosure sale (see Second Am. Compl. ¶¶ 60–64), but

they would leave unchanged the portions of their FDCPA claim that appear to be

premised on that foreclosure sale (see

¶¶ 83–84). 8

In short, the Court concludes that Plaintiffs’ second amended complaint “fails to

provide sufficient notice of the nature and grounds of Plaintiffs’ legal claims[,]” and

thus fails to satisfy Rule 8’s pleading standards. Jiggetts,

.

B. Plaintiffs’ Second Amended Complaint Will Be Dismissed With Leave To Amend

Given the pleading deficiencies indicated above, this Court will dismiss

Plaintiffs’ second amended complaint, and will provide Plaintiffs with one final

opportunity to file an amended complaint that complies with Rule 8’s requirements.

The Court is fully aware that Plaintiffs have already twice amended their complaint in

this matter (see Am. Compl.; Second Am. Compl.), and “federal courts are far less

8 In light of the other pleading deficiencies discussed above, Plaintiffs’ motion for leave to file that amended complaint will be DENIED AS MOOT; if Plaintiffs file another amended complaint in an effort to cure the defects that this Court has identified, they may remove their allegations pertaining to the foreclosure sale, but they should also clarify what, if anything, remains of their claims based on the Superior Court proceedings after their dismissal of BWW as a defendant in this action.

12 charitable when one or more amended pleadings already have been filed[,]” particularly

when, as here, there has been “no measurable increase in clarity” in the amended

complaints, Jiggetts,

(quoting 5 Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 1217 (3d ed. 2004)). But, as a practical

matter, this is the first time that this Court has had occasion to assess whether

Plaintiffs’ original and first amended complaints satisfied Rule 8’s pleading

requirements. (See Min. Order of Sept. 5, 2018 (denying as moot Defendants’ motion

to dismiss in light of Plaintiffs’ amended complaint); Min. Order of Apr. 22, 2019

(denying as moot Defendants’ renewed motion to dismiss in light of Plaintiffs’ second

amended complaint).) Thus, Plaintiffs have not yet “been afforded the opportunity to

amend [their] pleading” in light of the specific deficiencies identified above. Jiggetts,

.

Accordingly, as set forth in the accompanying Order, the Court will dismiss

Plaintiffs’ second amended complaint, but will grant Plaintiffs leave to file a third

amended complaint that cures the identified infirmities. If Plaintiffs file such an

amended pleading, U.S. Bank and Ocwen may reassert their motion-to-dismiss

arguments (see Defs.’ Mot. at 15–48), as well as any new grounds for dismissal, in

another responsive pleading or motion.

DATE: August 5, 2021 Ketanji Brown Jackson KETANJI BROWN JACKSON United States Circuit Judge Sitting by Designation

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