Molina v. Federal Deposit Insurance Corporation , 870 F. Supp. 2d 123 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
SAMUEL MOLINA, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-1759 (ABJ)
)
FEDERAL DEPOSIT INSURANCE )
CORPORATION, et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
Plaintiff Samuel Molina brings this action against defendants Federal Deposit Insurance
Corporation (“FDIC”), Ocwen Loan Servicing, LLC (“Ocwen”), and Shapiro & Burson, LLP
(“Shapiro & Burson”) alleging that their involvement in the acquisition, servicing, and
foreclosure of his subprime mortgage violated the Equal Credit Opportunity Act, the Fair
Housing Act, section 1982 of the Civil Rights Act, and the Fair Debt Collection Practices Act
(“FDCPA”). All three defendants move the Court to dismiss this action for lack of standing
under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim upon which relief can
be granted under Federal Rule of Civil Procedure 12(b)(6). Defendant FDIC also moves to
dismiss for lack of personal jurisdiction. Because plaintiff has not alleged facts showing that he
suffered any injury in fact fairly traceable to defendants, the Court will grant defendants’
motions and dismiss the action for lack of standing.
I. BACKGROUND
A. Factual Background
On October 3, 2011, plaintiff Samuel Molina brought this action on behalf of himself and
a putative class of Latino subprime mortgage borrowers, 1 alleging that Taylor, Bean & Whitaker
Mortgage Company (“TBW”); Ocwen; and Shapiro & Burson engaged in discriminatory
lending, servicing, and foreclosure practices that disparately impacted minority borrowers. 2
Compl. ¶¶ 94-126.
Defendants are three entities involved with lending, loan servicing, and foreclosure.
TBW was a mortgage company that allegedly originated a loan on plaintiff’s home, but has since
filed for Chapter 11 bankruptcy. Compl. [Dkt. # 1] ¶ 3, 12; FDIC’s Mot. to Dismiss [Dkt. # 23]
at 1. Plaintiff alleges that FDIC is receiver for the now-defunct TBW and thus liable for its
debts. Compl ¶ 3. According to plaintiff, Ocwen is a “financial services company” that “offers
financial administration services to third-parties that own mortgage-related investment
products[,]” and these services focus on subprime loans. Id. ¶¶ 4. Ocwen allegedly contracted
with a third-party debt collection agency and law firm, Shapiro & Burson, to conduct
foreclosures of mortgages on its behalf. Id. ¶¶ 6, 44.
1. TBW and FDIC
Plaintiff purchased a home in Virginia in 1996 in a purchase-money transaction. Id. ¶ 11.
Ten years later, he elected to refinance his home by obtaining a twenty-year fixed-rate mortgage
from TBW. Id. ¶ 12. Plaintiff claims that although he spoke little English at the time of his
1 The Court has stayed all motions for class certification pending this decision on the
motions to dismiss. Minute Order (Jan. 5, 2012).
2 Plaintiff’s claim against TBW is brought only by plaintiff as an individual, not as a
representative of a class. Compl. ¶¶ 94-103.
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refinancing, his settlement was conducted entirely in English and all loan disclosures were
printed in English. Id. ¶¶ 13–14. He also alleges that the TBW representative who prepared his
loan applications misrepresented the financial data by underrepresenting his monthly payments
and failing to take account of his credit history. Id. ¶¶ 15–16.
The remainder of the complaint against TBW is essentially an indictment of its business
practices and their alleged disparate impact on minority borrowers. Id. ¶¶ 94–103. Plaintiff
alleges that TBW “discriminated against minority home loan borrowers through a creative
system of targeting and exploiting its customers” and through “[r]ampant predatory lending
practices” that “created a unique loan pool consisting of large numbers of Latino borrowers with
subprime loans.” Id. ¶ 95. The complaint asserts that TBW
targeted minorities for the purchase of subprime loans because of a belief
that Latinos are less sophisticated financial consumers than whites and a
belief that, due to Latinos’ historical difficulty in obtaining credit from
traditional financial institutions . . . they would be less likely or able to
resist predatory lending practices than white borrowers[.]
Id. ¶ 98.
Plaintiff alleges that FDIC “stands as a court-appointed Receiver to resolve claims on
[TBW’s] behalf.” Id. ¶ 3.
2. Ocwen
Plaintiff next alleges that sometime after he obtained his loan from TBW, it was
“designated as subprime and bundled with other subprime mortgages and sold off to investors as
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a mortgage-backed security.” Id. ¶ 20. Ocwen allegedly acquired the rights to service plaintiff’s
mortgage “at some point after settlement.” 3 Id.
According to the complaint, Ocwen engaged in “discriminatory loan servicing practices.”
Id. ¶ 23. Plaintiff alleges that “[w]hile Ocwen’s call centers allow for in-bound Spanish-speakers
to speak with a Spanish-speaking representative, there was no policy in place, or at least
implemented, with respect to out-bound calls.” Compl. ¶ 37. He also claims that Ocwen’s
customer website and the notification emails it sends to borrowers regarding their Home
Affordable Modification Program (“HAMP”) application status are available only in English. Id.
¶¶ 38–39. Plaintiff claims that Ocwen’s “otherwise facially neutral loss mitigation requirements,
guidelines, policies, and procedures have a disparate impact on minority borrowers, such as
American-born Latinos and Latino Immigrants [sic], that results in higher rates of foreclosure
than similarly situated white borrowers.” Compl. ¶ 106.
The complaint also alleges that once a loan is more than ninety days past due, Ocwen
pursues foreclosure alternatives and foreclosure “simultaneously on a dual track.” Id. ¶ 35.
Ocwen’s staff allegedly maintains discretion over whether to enter into short-term repayment
plans with borrowers, “based upon company-established guidelines.” Id. ¶¶ 34–35. Eligibility
for foreclosure alternatives is determined by a “loan resolution workstation,” a proprietary
software system based on a data model that takes into account factors such as property valuation,
reason for default, and repayment ability, and plaintiff claims that these factors
disproportionately exclude Latinos, placing them at a heightened risk of foreclosure. Id. ¶ 35.
Plaintiff alleges that Ocwen’s policies deny minority borrowers the opportunity to explore
3 Plaintiff admits that Ocwen is not the current note-holder for his loan, and claims that he
does not know who currently owns it. Compl. ¶ 20. Ocwen identifies the current note-holder as
Freddie Mac. Def. Ocwen’s Mot. to Dismiss [Dkt. # 24] at 5. Freddie Mac is not a party to this
action.
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alternatives to foreclosures when they default, even though such alternatives are typically offered
to white borrowers. Id. ¶ 106.
Plaintiff also alleges that Ocwen’s policies and procedures place an emphasis on speedy
foreclosures, “far in excess of industry norms,” forcing Latinos into foreclosure “in
disproportionate numbers when compared to similarly situated non-minority borrowers.” Id. ¶
106(e). Plaintiff claims that these disparate impacts on minority borrowers amount to
discriminatory practices that “will fundamentally alter, for the worse, characteristics of ethnic
neighborhoods for decades to come.” Id. ¶ 108.
3. Shapiro & Burson
Plaintiff also claims that law firm and debt collection agency Shapiro & Burson engaged
in discriminatory practices. Compl. ¶ 116. Ocwen allegedly contracts with Shapiro & Burson to
conduct foreclosures on defaulted loans. Id. ¶ 44. Plaintiff alleges that Shapiro & Burson
engaged in “unlawfully relaxed foreclosure policies, practices, and procedures” to “deliver[]
speedy foreclosures that cut corners and break the rules.” Id. ¶ 114. The complaint further
alleges that as a result of Shapiro & Burson’s relaxed procedures, minority borrowers in general
are “more likely to undergo foreclosure and less likely to receive an offer for foreclosure
alternatives than similarly situated whites and American-born individuals.” Id. ¶ 118. As to his
own loan, plaintiff claims that “it is exceptionally unlikely that any of [Shapiro & Burson’s] staff
actually reviewed [p]laintiff’s . . . mortgage information to verify that Ocwen Loan Servicing
was the noteholder.” Id. ¶ 113.
Plaintiff also claims that Shapiro & Burson engages in illegal “robo-signing” to ensure
the faster signing of foreclosure documents. Id. ¶ 115. This operation allegedly results in a
disproportionate number of foreclosures for minority borrowers. Id. ¶ 118. In support of that
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allegation, plaintiff attaches an affidavit prepared by Jose Portillo, a former paralegal at Shapiro
& Burson. Portillo Aff. [Dkt. # 1-2] ¶ 3. The affiant claims that he personally prepared and
witnessed illegally robosigned foreclosure documents. Id. ¶ 8–28. Attached to the affidavit are
exhibits, which the affiant identifies as forged foreclosure documents. Ex. A–C to Portillo Aff.
The documents all concern foreclosures conducted on properties in Maryland. Id.
B. Procedural Background
Plaintiff filed this action on October 3, 2011 on behalf of himself and a class of minority
subprime borrowers. Compl. at 1. More than two weeks after plaintiff filed the complaint, he
filed an emergency motion for temporary restraining order and preliminary injunction. Emer.
Mot. for TRO and Prelim. Inj. [Dkt. # 10]. He later withdrew the motions voluntarily, noting
that “[t]he relief requested in the [m]otions – the cancellation of the sale of [p]laintiff’s home on
October 25, 2011 – has been obtained.” [Dkt. # 12].
Counts I, II, and III of the complaint allege that TBW, for which FDIC is the receiver,
disproportionately targeted Latinos for subprime loans in violation of the Equal Credit
Opportunity Act, the Fair Housing Act, and section 1982 of the Civil Rights Act. Compl. ¶¶ 94–
103. Counts III and IV allege that Ocwen has adopted and implemented guidelines, policies, and
procedures that result in higher rates of foreclosure for minority borrowers, in violation of the
Fair Housing Act and section 1982 of the Civil Rights Act. 4 Id. ¶¶ 104–109. Counts V and VI
allege that Shapiro & Burson engages in foreclosure practices and procedures that violate the
Fair Housing Act and the Civil Rights Act because they prevent minority borrowers from
exploring foreclosure alternative programs. Id. ¶¶ 110–119. Count VII alleges that Shapiro &
Burson maintains an illegal “robo-signing” operation and fails to conduct proper oversight and
4 The Complaint contains two Counts identified as “Count III.”
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due diligence in processing foreclosure documents, in violation of the Fair Debt Collection
Practices Act. Id. ¶¶ 120–126.
II. STANDARD OF REVIEW
In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must
“treat the complaint's factual allegations as true and must grant plaintiff ‘the benefit of all
inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216
F.3d 1111, 1113 (D.C. Cir. 2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir.
1979) (citation omitted). Nevertheless, the Court need not accept inferences drawn by the
plaintiff if those inferences are not supported by facts alleged in the complaint, nor must the
Court accept plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.
2002).
Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a
preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992);
Shekoyan v. Sibly Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). “Federal courts are courts
of limited jurisdiction[]” and the law presumes that “a cause lies outside this limited
jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also
Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited
jurisdiction, we begin, and end, with an examination of our jurisdiction.”). Because “subject-
matter jurisdiction is ‘an Art[icle] III as well as a statutory requirement . . . no action of the
parties can confer subject-matter jurisdiction upon a federal court.’” Akinseye v. District of
Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 702 (1982).
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When considering a motion to dismiss for lack of jurisdiction the Court “is not limited to
the allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986),
vacated on other grounds, 482 U.S. 64 (1987). Rather, the Court “may consider such materials
outside the pleadings as it deems appropriate to resolve the question of whether it has jurisdiction
to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C.
2000), citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome
Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
The jurisdiction of the federal courts extends only to actual ongoing cases or
controversies. U.S. Const. art. III, § 2. A lack of standing is therefore a defect in subject-matter
jurisdiction. Haase v. Session, 835 F.2d 902, 906 (D.C. Cir. 1987). In order to establish
constitutional standing, a plaintiff must demonstrate that a case or controversy exists by showing
that (1) it has suffered an “injury in fact” that is “concrete and particularized” and “actual or
imminent, not conjectural or hypothetical”; (2) that the injury is “fairly traceable” to the conduct
of the defendant; and (3) that it is likely that the injury will be redressed by a favorable decision.
George v. Napolitano, 693 F. Supp. 2d. 125, 129–30 (D.D.C. 2010), citing Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180–81 (2000).
III. ANALYSIS
A. Claims against FDIC
Plaintiff has brought this action against FDIC under the theory that FDIC acts as receiver
for TBW – the entity that originally held plaintiff’s mortgage and is now a Chapter 11 debtor in
the U.S. Bankruptcy Court for the Middle District of Florida. See Compl. ¶ 3; In re: Taylor,
Bean & Whitaker Mortg. Corp., Ch. 11 Case No. 3:09-bk-7047-JAF (Bankr. M.D. Fla. filed
Aug. 24, 2009); see also Ex. B to FDIC’s Mot. to Dismiss [Dkt. # 23-3] at 1. However, by law,
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FDIC is not the successor or receiver for TBW. See 12 U.S.C. § 1821(d)(2)(A) (defining FDIC’s
authority to succeed as receiver to only insured depository institutions). Plaintiff has not alleged
that TBW was an FDIC-insured depository institution. Rather, FDIC has provided an opinion of
the bankruptcy court handling TBW’s Chapter 11 proceedings, which reveals that TBW was a
non-depository company that originated, underwrote, processed, funded, sold, and serviced
mortgage loans. See Ex. B to FDIC’s Mot. to Dismiss at 1. Thus, FDIC has no authority,
responsibility, or jurisdiction to resolve claims against TBW. Therefore, no harms suffered by
plaintiff can be fairly traced to FDIC. Lujan, 504 U.S. at 560 (To prove standing, a plaintiff
must show that his injury is fairly traceable to the actions of the defendant “and not . . . [from]
the independent action of some third party not before the court.”).
In its reply to FDIC’s argument that it is not an appropriate defendant in this case,
plaintiff asserts, for the first time, that FDIC is liable as the appointed receiver for non-party
Colonial Bank, which was allegedly “the primary lender to and co-conspirator with [TBW] in the
perpetration of a significant fraud scheme.” Pl.’s Opp. to FDIC Mot. to Dismiss [Dkt. # 27] at 1.
Plaintiff argues that FDIC succeeded to Colonial Bank’s liabilities, including TBW’s debts, after
it failed. Id. at 1–2.
This argument fails for multiple reasons. First, plaintiff has not named Colonial Bank as
a defendant in this case, so to the extent that plaintiff’s allegation rests on Colonial Bank’s role in
an alleged conspiracy to commit fraud, his theory of liability is not before this Court. See
Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C.
2003) (citations omitted) (“It is axiomatic that a complaint may not be amended by the briefs in
opposition to a motion to dismiss.”). Furthermore, even if successor liability applied and FDIC
were a proper defendant, this Court lacks jurisdiction because plaintiff has not shown that he has
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properly exhausted his administrative remedies by filing a proof of claim with the FDIC-
receiver. Starnes Decl. [Dkt. # 34-3] ¶ 6; See 12 U.S.C. § 1821(d)(5)(A), (6)(A), (13)(D)
(judicial review is not available for a claimant except in cases where the claimant is seeking an
appeal of the denial of an administrative claim); see also Freeman v. FDIC, 56 F.3d 1394, 1399–
1400 (D.C. Cir. 1995) (explaining that 12 U.S.C. § 1821(d) creates a jurisdictional bar that
requires a claimant to exhaust administrative remedies before bringing a claim against an FDIC-
receiver in court); Jahn v. FDIC, 828 F. Supp. 2d 305, 310 (D.D.C. 2010) (same). All claims
against FDIC will therefore be dismissed.
B. Claims against Ocwen
The Court next turns to plaintiff’s claims against Ocwen. While plaintiff levels some
troubling accusations about the processes Ocwen uses to determine which borrowers are
funneled toward foreclosure and which are offered foreclosure alternatives, and the disparate
impact that those procedures may have on Hispanic borrowers, Compl. ¶¶ 106-07, he fails to
allege that he himself suffered any injury as a result of Ocwen’s practices. Moreover, he fails to
allege that he was even subject to Ocwen’s allegedly discriminatory practices. As a result, the
Court finds that plaintiff lacks standing to bring his claims against Ocwen.
Injury in fact is “an invasion of a legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at
560 (internal quotation marks omitted). Neither plaintiff’s complaint nor his briefs in opposition
to the motions to dismiss allege any facts that would show that plaintiff suffered any concrete
and particularized harm. They do not allege that plaintiff lost his house in a foreclosure or even
that he was funneled toward foreclosure by Ocwen. Contrarily, in his complaint, Mr. Molina
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asserts that “Mr. Samuel Molina is the current owner and occupant of the property[.]” Compl. ¶
1 (emphasis added).
Instead of claiming that Mr. Molina suffered harm, the pleadings consistently discuss the
harm that the members of the class of protected minorities that he seeks to represent suffered.
See, e.g., Compl. ¶¶ 34–66; Pl.’s Br. in Opp. to Ocwen’s Mot. to Dismiss (Pl.’s Opp. to Ocwen’s
Mot.”) [Dkt. # 28] at 2, 11–12. In his opposition to Ocwen’s motion to dismiss, plaintiff claims
that “Mr. Molina and the members of the proposed class were subjected to a series of abusive
servicing practices.” Pl.’s Opp. to Ocwen’s Mot. at 2. However, when describing the harms that
those servicing processes caused, plaintiff again fails to allege that he personally suffered any of
those harms:
[T]hese practices led to harms that disparately impacted the minority
borrowers Mr. Molina seeks to represent: heightened fees and costs;
increased exposure to harassing and illegal debt collection activities;
diminished access to opportunities for foreclosure alternatives; increased
risk to foreclosure and the concomitant loss of equity, assessment of fees,
and credit damage that come [sic] with that risk; and the stress, anxiety,
humiliation, depression, and anger caused by the abusive loan servicing
practices that this lawsuit challenges.
Pl.’s Opp. to Ocwen Mot. to Dismiss at 2. Similarly, while Mr. Molina asserts that “Ocwen’s
rapid foreclosure process . . . has restricted and will continue to restrict the access of American-
born Latinos and Latino immigrants from certain neighborhoods [and that i]t has affected and
will continue to adversely affect access to quality education for the children of American-born
Latinos and Latino immigrants[,]” Compl. ¶ 108, he does not allege that he was unable to
maintain a home in the neighborhood or school district of his choice.
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Moreover, even if the Court were to assume that plaintiff did at some point default on his
loan, 5 plaintiff still fails to allege that he was subject to the Ocwen practices that he alleges are
discriminatory. The complaint claims that “[w]hile Ocwen’s call centers allow for in-bound
Spanish speakers to speak with a Spanish-speaking representative, there was no policy in place,
or at least implemented, with respect to out-bound calls made to Mr. Molina.” Compl. ¶ 37. It
also alleges that Ocwen’s customer website and the notification emails it sends to borrowers
regarding their HAMP application status are available only in English. Id. ¶ 39. However,
plaintiff does not allege that he received any out-bound calls from Ocwen, that he ever attempted
to access the website, that he applied for HAMP loan modification, or that he received any
emails – in English or otherwise – about the program, let alone that Ocwen’s failure to provide
services in Spanish caused plaintiff to relinquish better loan repayment options that were
available to him, to miss payments, or to incur any other injury.
Similarly, the complaint alleges that once a borrower defaults on his loan, Ocwen’s staff
has “discretionary authority to enter into short-term repayment plans with borrowers based upon
company-established guidelines[,]” and that foreclosure alternative options are based on a data
model “that disproportionately exclude[s] American-born Latinos and Latino immigrants and
place[s] them at a heightened vulnerability to the financial and immaterial harms of foreclosure.”
Compl. ¶¶ 34–35; see also Compl. ¶¶ 36, 43–44. But plaintiff does not allege that he was ever
5 The Court might be able to infer that plaintiff at one point defaulted on his loan from the
notice of withdrawal of the motion for temporary restraining order and preliminary injunction
that he submitted to this Court. [Dkt. # 12]. In the notice, plaintiff explained that he was
withdrawing his motions because “the relief requested in the motions – the cancellation of the
sale of [p]laintiff’s home on October 25, 2011 – has been obtained.” Id. at 1.
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put on the alleged foreclosure fast-track, that Ocwen did not present him with any foreclosure
alternatives, or that Ocwen denied him a foreclosure alternative option. 6
Alternatively, plaintiff alleges that the Court should find standing because plaintiff will
inevitably be injured by Ocwen’s discriminatory practices. Pl.’s Opp. to Ocwen’s Mot. to
Dismiss at 11. However, plaintiff does not allege that he is delinquent on his mortgage
payments, and so the Court cannot find that he is subject to, or will even become subject to,
Ocwen’s allegedly discriminatory servicing practices, let alone that he will inevitably suffer
harm because of them. Cf. Grassroots Recycling Network v. EPA, 429 F.3d 1109, 1112 (D.C.
Cir. 2005) (finding that plaintiffs’ allegation that an environmental regulation might cause their
home values to decline sometime in the future was not sufficiently "imminent" to satisfy
standing); Seegars v. Gonzales, 396 F.3d 1248, 1256 (D.C. Cir. 2005) (holding that plaintiffs
6 Plaintiff points the Court to an unreported decision from the District of Massachusetts.
Barrett v. H&R Block, Inc., Civil Action No. 08-10157, 2011 WL 1100105 (D. Mass. Mar. 21,
2011). The court there assessed standing as part of the typicality analysis for a motion for class
certification. Id. at *2. The plaintiffs in that case alleged that the defendants, mortgage
providers, gave their authorized brokers discretion to impose additional charges to a borrower’s
wholesale mortgage loans unrelated to the borrower’s creditworthiness, and that the policy had a
disparate impact on African American borrowers in that it resulted in their being charged higher
rates than similarly situated white borrowers. Id. at *1–2. The plaintiffs were African American
homeowners who had obtained a mortgage from one of the defendants. Id. at *1. The
defendants argued, however, that certain of the plaintiffs had not met their burden of showing
injury in fact because they had received loans that were priced more favorably than similarly
situated white borrowers. Id. at *6. Absent individualized evidence that the named plaintiffs
were actually disadvantaged, the defendants argued, they lacked standing, and thus were not
typical of the class they sought to represent. Id. The court found that the plaintiffs satisfied the
standing requirement because they had shown that they were subject to the discretionary pricing
policy, a common practice that governed the pricing of all class members’ mortgages, which they
had alleged was harmful. Id.This Court is not bound by an unreported case from the District of Massachusetts, but
regardless, the facts here are distinguishable. First, the Massachusetts court was analyzing
typicality for a motion for class certification, not the plaintiffs’ standing to raise their claims. See
In re Lorazepam & Chlorazepate Antitrust Litig., 289 F.3d 98, 107–08 (D.C. Cir. 2002)
(“Constitutional standing . . . is a prerequisite to class certification”) (emphasis added).
Furthermore, unlike the plaintiffs in that case, plaintiff here has not shown that he was, or is
currently, subject to the practices that he alleges are discriminatory.
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lacked standing to challenge District of Columbia gun control laws despite plaintiffs’ intent to
openly violate them because no prosecution against plaintiffs was imminent).
Accordingly, the Court finds that plaintiff lacks standing to bring his claims against
defendant Ocwen.
C. Claims against Shapiro & Burson
As with plaintiff’s claims against Ocwen, plaintiff cannot point to any concrete and
particularized injury he has suffered that is fairly traceable to Shapiro & Burson. Plaintiff has
not alleged that his property was foreclosed upon, or that he suffered any other concrete harm as
a result of actions taken by Shapiro & Burson. Although plaintiff alleges that Shapiro & Burson
has a general practice of failing to verify ownership of the loans on which it conducts
foreclosures and engages in illegal robo-signing, Compl. ¶¶ 112-15, he does not claim that this
practice injured him in any way.
In fact, plaintiff does not even claim that the alleged wrongdoing by Shapiro & Burson
has any relation to his loan at all. He does not allege that the law firm improperly failed to verify
ownership of his loan, that his foreclosure documents, if any, were signed without authorization,
or that an attorney failed to review his mortgage documents. Exhibit B to the complaint contains
an affidavit from a former Shapiro & Burson employee (“Portillo Affidavit”) who claims to have
personally witnessed and participated in a robo-signing scheme by Shapiro & Burson, along with
examples of allegedly forged foreclosure documents. See Portillo Aff. [Dkt. # 1-2] at 11–28.
However, the allegations and sample documents do not relate to any documents from plaintiff’s
mortgage, or even documents related to mortgages in the state of Virginia, where plaintiff’s
home is located. Plaintiff merely alleges that it is “exceptionally unlikely” that Shapiro & Burson
“reviewed [p]laintiff’s . . . mortgage information.” Compl. ¶ 113 (emphasis added). Such a
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“conjectural or hypothetical” statement does not amount to a factual allegation of “concrete and
particularized” injury, as required to satisfy Article III standing. Cf. Grassroots Recycling
Network, 429 F.3d at 1112 (holding that plaintiffs’ allegation that they would have paid less for
their homes had they known that neighboring land could be converted into a bioreactor was not
sufficiently “imminent” to satisfy standing because it failed to show that the fair market value of
the homes had actually been affected).
For claims under the FDCPA, a plaintiff is not required to show actual damages, but he
must at least allege that the defendant made an unlawful attempt to recover his debt. Muldrow v.
EMC Mortg. Corp., 766 F. Supp. 2d 230, 235 & n.1 (D.D.C. 2011), citing Miller v. Wolpoff
Abramson, LLP, 321 F.3d 292, 307 (2d Cir. 2003). In Miller, the Second Circuit held that
although a plaintiff may not be able to demonstrate an “identifiable injury[,] [t]he FDCPA
provides for liability for attempting to collect an unlawful debt, however, and permits the
recovery of statutory damages up to $1000[.]” 321 F.3d at 307. Thus, a plaintiff may establish
standing if he can demonstrate that the debt collector “attempted to collect money in violation of
the FDCPA.” Id. However, since plaintiff never alleges that Shapiro & Burson unlawfully
attempted to collect money from him, as described above, he fails to meet the requirements for
standing even under this lower bar.
All claims against Shapiro & Burson will therefore be dismissed.
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IV. CONCLUSION
For the reasons set forth above, the Court finds that plaintiff lacks standing to bring any
of the claims in the complaint. Accordingly, the Court will grant defendants’ motions to dismiss
[Dkt. # 22, 23, 24] and dismiss the action. A separate order will issue.
//s//
AMY BERMAN JACKSON
United States District Judge
DATE: June 28, 2012
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