COLLEEN KOLLAR-KOTELLY, District Judge.
This action was originally filed by Plaintiffs Susan Frese and Kevin McCarthy in the Superior Court for the District of Columbia and was removed to this Court by Defendant Deutsche Bank National Trust Company, as Trustee ("Deutsche Bank"). Plaintiffs' Second Amended Complaint, filed in this Court on November 9, 2009, alleges violations of the District of Columbia Consumer Protection Procedures Act (DCCPPA), D.C.Code § 28-3901 et seq., the Truth in Lending Act (TILA), 15
The following facts are drawn from the allegations in the Second Amended Complaint and public records of which the Court may take judicial notice.
Plaintiff Susan Frese ("Frese") is a resident of the District of Columbia who lives in a three-bedroom house at 751 Gresham Place, N.W. (the "Property"). Second Am. Compl. ("SAC") ¶ 3. Frese purchased the property in July 2005 for $275,000 with a "no down payment" mortgage obtained through Defendant Empire Financial. Id. ¶ 11. The mortgage was an "interest only" mortgage with an interest rate of between 6 and 7 percent, and monthly payments were approximately $1500, including escrow of taxes and hazard insurance. Id. Frese thought her interest rate was too high and contacted Empire Financial in the fall of 2005 and spring of 2006 to ask if better financing options were available. Id. ¶ 13. In the spring of 2006, an agent of Empire Financial called Frese and told her that a new program was available offering a one percent interest rate for three years. Id. ¶ 14. Frese expressed interest and agreed to refinance her mortgage. See id. ¶¶ 14-15. In mid-April 2006, approximately three weeks prior to closing, Frese asked what her monthly payments would be. Id. ¶ 15. The agent explained that her monthly payments would be $1000 per month or less but that the principal balance would go up by "a couple of dollars" a month. Id. The agent did not explain the concept of "negative amortization" or that the interest was variable and that a 3% prepayment penalty would be imposed if the loan were refinanced within three years. Id. ¶¶ 16-17. Frese never received any documents prior to closing. Id. ¶ 20.
The closing occurred on May 2, 2006, at the Property. SAC ¶ 21. An agent for Defendant Land Title LLC appeared at the Property and presented Frese with the closing documents, which she signed. Id. ¶¶ 24-25. Frese noticed that the amortization documents showed her principal balance going up by $900 a month, and she interrupted the closing to call the agent at Empire Financial. Id. ¶¶ 26, 28. The Empire Financial agent disclaimed knowledge of the negative amortization and said he would review it and call Frese back. Id. ¶ 29. Relying on these statements, Frese signed the rest of the documents, and she received copies of the documents from Land Title LLC as well as checks totaling $14,000, her proceeds from the transaction. Id. ¶¶ 30-31. Frese noticed that the documents falsely represented that she had a pre-closing interview with the president of Empire Financial. Id. ¶ 35.
On August 7, 2008, Plaintiff McCarthy filed an application with the Bankruptcy Court to employ Thomas C. Willcox, an attorney, to:
Application By Trustee to Employ Special Counsel, Bankruptcy Action, Dkt. No. [21]. According to the application, McCarthy has an agreement with Frese that with respect to the AHM litigation, Frese will receive any equitable relief recovery and the bankruptcy estate will receive any monetary relief recovery (with special counsel receiving one-third of the value of the total recovery plus expenses). Id. On August 29, 2008, the Bankruptcy Court granted the application, which was unopposed. See Bankruptcy Action, Dkt. No. [23]. On December 17, 2008, Deutsche Bank entered an appearance in the Bankruptcy Court (as "Trustee for HarborView Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2006-7, c/o American Home Mortgage Servicing, Inc.") and filed a Motion for Relief from Automatic Stay, noting that it had a security interest in the Property and that Frese had defaulted on her loan, owing over $350,000. See Motion for Relief from Automatic Stay, Bankruptcy Action, Dkt. No. [25]. Deutsche Bank sought an order enabling Deutsche Bank to foreclose on the Property. Id. Deutsche Bank's motion was the first notice Frese had that anyone other than American Home Mortgage owned her loan. SAC ¶ 44. Deutsche Bank's motion, which was unopposed, was granted by the Bankruptcy Court on January 6, 2009. See Order Granting Relief from Automatic Stay, Bankruptcy Action, Dkt. No. [30].
Deutsche Bank has moved to dismiss the claim against it pursuant to Federal Rule of Civil Procedure 12(b)(6). The Federal Rules of Civil Procedure require that a complaint contain "`a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555, 127 S.Ct. 1955; see also Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Instead, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
Deutsche Bank moves to dismiss the TILA claim asserted against it in the Second Amended Complaint, which prays for rescission of the refinance loan. Deutsche Bank propounds three grounds for its motion: (1) Plaintiffs have failed to allege sufficient facts to state a claim against Deutsche Bank for rescission under TILA; (2) Plaintiffs' counsel is not authorized by the Bankruptcy Court to bring a rescission claim against Deutsche Bank; and (3) Plaintiffs are judicially estopped from pursuing this litigation because they adopted an inconsistent position before the Bankruptcy Court. The Court shall consider each in turn.
The Court begins by noting that the allegations regarding Deutsche Bank in the Second Amended Complaint are rather limited. Plaintiffs allege that Frese was unaware that Deutsche Bank was a creditor when she filed her bankruptcy petition and that McCarthy was unaware that Deutsche Bank had purchased the loan when he filed the application to employ special counsel to represent the bankruptcy estate. See SAC ¶¶ 37, 40. Plaintiffs then explain that Deutsche Bank entered the bankruptcy action as "Trustee for HarborView Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2006-7, c/o American Home Mortgage Servicing, Inc."
The Truth in Lending Act governs the terms and conditions of consumer credit by, inter alia, requiring lenders to disclose to borrowers certain details and conditions regarding their loans. For example, creditors must disclose the "amount financed," the "finance charge," and the "annual percentage rate" applicable to the loan. See 15 U.S.C. § 1638(a). In addition, lenders who secure an interest in the borrower's home must provide "good faith estimates" (GFEs) of these disclosures in writing at least seven business days before a transaction is consummated. Id. § 1638(b)(2). TILA also provides such borrowers with a right of rescission that may be exercised within three business days after a transaction is consummated or after the required disclosures are delivered, whichever occurs later. See id. § 1635(a). Plaintiffs claim that Frese never received the required disclosures prior to closing, see SAC ¶ 20, and that she therefore has a right to rescind the refinance transaction under TILA.
Because there are no allegations in the Second Amended Complaint that Deutsche Bank was involved in the origination of the loan or otherwise acted as a creditor as defined by TILA, Plaintiffs rely on a theory of assignee liability. TILA provides that the assignees of creditors who violate TILA may be liable in certain circumstances. See 15 U.S.C. § 1641(a) ("Except as otherwise specifically provided in this subchapter, any civil action for a violation of this subchapter or proceeding under [15 U.S.C. § 1607] which may be brought against a creditor may be maintained against any assignee of such creditor only if the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement, except where the assignment was involuntary.") Deutsche Bank argues that there is no assignee liability in this case because Plaintiffs have not alleged facts showing a violation by the creditor that is apparent on the face of any disclosures. See Def.'s Mem. at 7. Plaintiffs argue that because their claim is based on a failure to make required disclosures, they are not required to show that the disclosures were facially deficient. See Pl.'s Opp'n at 7-8. Both parties ignore § 1641(c), which states that "[a]ny consumer who has the right to rescind a transaction under section 1635 of this title may rescind the transaction as against any assignee of the obligation." 15 U.S.C. § 1641(c). Because rescission under § 1635 is distinct remedy under TILA, assignees are liable for violations even if they are not "apparent on the face of the disclosure." Parker v. Potter, 232 Fed. Appx. 861, 865 (11th Cir.2007); Miranda v. Universal Fin. Group, Inc., 459 F.Supp.2d 760, 765 n. 3 (N.D.Ill.2006). Therefore, Plaintiffs may pursue their rescission
Deutsche Bank argues that the allegations in the Second Amended Complaint are insufficient to establish a TILA violation because Plaintiffs' pleadings are too "bare-bones" to provide Deutsche Bank with fair notice of the circumstances, events, and occurrences giving rise to their claim. See Def.'s Mem. at 5. However, Plaintiffs have alleged that Frese was not provided with disclosures pertaining to, among other things, the finance charges, the amount financed, the annual percentage rate, and the "good faith estimates" of these disclosures. See SAC ¶ 64. These allegations are sufficient to put Deutsche Bank on notice of the nature of the claims being asserted. Plaintiffs' failure to describe in more detail what they mean by "untimely and incorrect disclosures for the Loan," id., does not mandate dismissal of their claim at the pleading stage.
Deutsche Bank also argues that Plaintiffs' rescission claim must fail because other allegations in the Second Amended Complaint show that Frese did in fact receive the mandated disclosures. For example, Frese alleges that she was "presented... with the closing documents" which explained how her loan would amortize. See SAC ¶¶ 24, 26. Deutsche Bank also argues that the allegation pertaining to "[u]ntimely and incorrect" disclosures shows that Frese did receive disclosures, contradicting Plaintiffs' claim that disclosures were not made. The Court is not persuaded by Deutsche Bank's argument. Plaintiffs do not allege that they received all required TILA disclosures, nor do their allegations regarding untimely and incomplete disclosures constitute "written acknowledgment of receipt of any disclosures" sufficient to establish a rebuttable presumption of delivery under § 1635(c). Construed logically and in the light most favorable to the Plaintiffs, the Second Amended Complaint alleges that Frese never received certain disclosures required by TILA and that other disclosures were untimely and/or incorrect. Therefore, she has stated a claim for rescission under § 1635.
Deutsche Bank lastly argues that Plaintiffs cannot prevail on their rescission claim because in order to rescind the loan, they must return the loan principal, see 15 U.S.C. § 1635(b), which Deutsche Bank claims they are incapable of doing. Section 1635(b) provides as follows:
15 U.S.C. § 1635(b) (emphasis added). Deutsche Bank points out that as of November 22, 2008, the unpaid principal balance of the loan was $344,511.74, whereas the assessed value of the Property was only $255,460.00. See Motion for Relief from Automatic Stay ¶¶ 11-12, Bankruptcy Action, Dkt. No. [25]. Deutsche Bank argues that the claim should be dismissed because Plaintiffs have not pled their ability or willingness to tender the full value of the principal. Several courts have held that a rescission claim should be dismissed (with leave to amend) for failure to allege an ability to tender the principal to the creditor. See, e.g., Montoya v. Countrywide Bank, F.S.B., No. C09-00641, 2009 WL 1813973, at *5 (N.D.Cal. June 25, 2009). However, this Court is not persuaded that ability to tender is a pleading requirement for a TILA rescission claim. As the D.C. Circuit noted in Brown v. National Permanent Federal Savings and Loan Association, 683 F.2d 444 (D.C.Cir. 1982) (per curiam), § 1635(b) does not require that a debtor tender first; it is the creditor that must tender before the borrower's obligation arises. Id. at 447. Because the statute states that the security interest becomes void once the right to rescind is exercised, a rescission claimant should not be required to plead an ability to tender the property to the creditor. Moreover, several courts have recognized that inability to tender is a factual question more appropriate for resolution on summary judgment. See, e.g., Moore v. Wells Fargo Bank, N.A., 597 F.Supp.2d 612, 616-17 (E.D.Va.2009).
Courts are, however, free to exercise equitable discretion to modify rescission procedures, and rescission under TILA may be conditioned on the debtor's return of any money received. Id.; 15 U.S.C. § 1635(b). Although the Court finds that it is not appropriate to modify the rescission procedure at the motion to dismiss stage, it may require Plaintiffs to prove an ability to tender the principal balance before ordering rescission.
Deutsche Bank contends that the TILA claim asserted by Plaintiffs in this action goes beyond the scope of the representation authorized by the Bankruptcy Court in its order approving the employment of special counsel by the bankruptcy estate pursuant to 11 U.S.C. § 327(e). Specifically, Deutsche Bank argues that the Bankruptcy Court approved the employment of special counsel to pursue "monetary claims" against Empire Financial, Land Title, and American Home Mortgage, not a rescission claim against Deutsche Bank. Plaintiffs counter that the Bankruptcy Court's order was clearly intended to encompass claims that might be asserted against the assignees of Empire Financial, Land Title, and American Home Mortgage, although they fail to address the fact that the Bankruptcy Court's order focuses on "monetary claims."
Assuming arguendo that Deutsche Bank's reading of the Bankruptcy Court's order is correct, it is unclear why this would require dismissal of Plaintiffs' rescission claim, as urged by Deutsche Bank. The Bankruptcy Court's order pertains only to the employment of special counsel under 11 U.S.C. § 327(e); it does not affect the trustee's authority under the
Deutsche Bank argues that Plaintiffs are judicially estopped from asserting a rescission claim against Deutsche Bank in this action because they disclaimed any intent to seek rescission during the bankruptcy proceedings. "Courts may invoke judicial estoppel `[w]here a party assumes a certain position in a legal proceeding,... succeeds in maintaining that position,... [and then,] simply because his interests have changed, assume[s] a contrary position.'" Moses v. Howard Univ. Hosp., 606 F.3d 789, 792 (D.C.Cir.2010) (quoting Comcast Corp. v. FCC, 600 F.3d 642, 647 (D.C.Cir.2010)). There are at least three questions a court generally considers in deciding whether to apply judicial estoppel:
Id. at 798 (citing New Hampshire v. Maine, 532 U.S. 742, 750-51, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)).
Before the Court can begin its analysis of judicial estoppel, the issue of standing must be addressed. Generally speaking, when a debtor files for bankruptcy under Chapter 7 of the Bankruptcy Code, all pre-petition claims become property of the bankruptcy estate, and only the trustee has standing to pursue the claim. See 11 U.S.C. § 541(a) (providing that "all legal or equitable interests of the debtor in property" become property of the estate upon the commencement of the case); Moses v. Howard Univ. Hosp., 606 F.3d at 795 ("The commencement of Chapter 7 bankruptcy extinguishes a debtor's legal rights and interests in any pending litigation, and transfers those rights to the trustee, acting on behalf of the bankruptcy estate.")
The record shows that Frese indicated in her initial bankruptcy petition that American Home Mortgage held a secured claim on the Property and that Frese did not dispute this claim. Indeed, Frese indicated in her petition that she would retain the collateral and continue to make regular payments on the loan. Frese then amended her schedules to list a "Claim Against Empire Services & Land Title." Frese was then granted a discharge from her debts by the Bankruptcy Court. Following the discharge, McCarthy, as trustee for the estate, filed his application to employ special counsel for the purpose pursuing claims against Empire Financial, Land Title LLC, and American Home Mortgage; that application was granted by the Bankruptcy Court as unopposed. Deutsche Bank then moved for relief from the automatic stay so that it could foreclose on the Property, and this relief was also granted by the Bankruptcy Court as unopposed.
Courts have routinely held that judicial estoppel is appropriate when a debtor fails to identify a claim in a bankruptcy proceeding and then proceeds to assert that claim in a separate judicial action. See Moses v. Howard Univ. Hosp., 606 F.3d at 798 ("[E]very circuit that has addressed the issue has found that judicial estoppel is justified to bar a debtor from pursuing a cause of action in district court where that debtor deliberately fails to disclose the pending suit in a bankruptcy case."); Kopff v. World Research Group, LLC, 568 F.Supp.2d 39, 43-44 (D.D.C.2008) (citing cases). Although Frese did amend her schedules to reflect a claim against Empire Financial and Land Title LLC, she failed to list any claim (such as rescission) against the lender (American Home Mortgage) prior to receiving her discharge from the Bankruptcy Court. Plaintiffs concede as much in their opposition brief, noting that "while the Amended Schedules may not have specifically referenced litigation against the lender, the Application For Employment did." Pls.' Mem. at 10. But the application to employ special counsel was filed by McCarthy months after Frese received her discharge, so it is clear that Frese failed to disclose her rescission claim to the Bankruptcy Court, and the Bankruptcy Court discharged her based on the representations she made to it. Thus, judicial estoppel may be appropriate for Frese. However, as noted above, it is the trustee, McCarthy, who is pursuing this rescission claim, and therefore the Court must determine whether the principles of judicial estoppel are met with respect to McCarthy. See Parker v. Wendy's Int'l, Inc., 365 F.3d 1268, 1272 (11th Cir.2004) (finding that although the debtor had taken inconsistent positions in bankruptcy court and district court, judicial estoppel should not be applied to the trustee, who had not taken any inconsistent position).
Plaintiffs contend that McCarthy did not take an inconsistent position before the Bankruptcy Court because he disclosed the possibility of a rescission claim against Deutsche Bank in his application to employ special counsel. As noted in the previous section, Deutsche Bank construes this application as pertaining solely to monetary claims against the lender and not encompassing any rescission claims
Judicial estoppel is an equitable doctrine subject to the sound discretion of the Court. New Hampshire v. Maine, 532 U.S. at 750, 121 S.Ct. 1808. Based on the present record, the Court is unable to conclude that McCarthy should be judicially estopped from proceeding with the rescission claim against Deutsche Bank. Although Frese has received a discharge from the Bankruptcy Court, the bankruptcy proceedings remain open, and Deutsche Bank has failed to explain how McCarthy will be unfairly advantaged by pursuing the rescission claim. Although the trustee might be faulted for failing to ensure that the rescission claim was included on Frese's amended schedules, it appears that he attempted to inform the Bankruptcy Court through his application to employ special counsel of his intention to pursue a claim for equitable relief against the lender. Indeed, the Bankruptcy Court explicitly approved the arrangement by which the trustee would allow Frese to keep the benefits of equitable relief. Therefore, the Court finds that the doctrine of judicial estoppel should not be applied based on the present record.
For the foregoing reasons, the Court shall DENY Defendant Deutsche Bank's [26] Motion to Dismiss Plaintiffs' Second Amended Complaint. An appropriate Order shall accompany this Memorandum Opinion.
For the reasons expressed in the accompanying Memorandum Opinion, it is, this 27th day of July, 2010, hereby
