Bank of New York Mellon v. Perry Henderson, et al

Filing

OPINION [1682902] filed (Pages: 8) for the Court by Judge Ginsburg. [15-5186]

USCA Case #15-5186

Document #1682902

Filed: 07/07/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 2016

Decided July 7, 2017

No. 15-5186
THE BANK OF NEW YORK MELLON TRUST CO. N.A., AS
SUCCESSOR IN INTEREST TO JP MORGAN CHASE BANK,
NATIONAL ASSOCIATION, AS SUCCESSOR IN INTEREST TO
BANK ONE, NATIONAL ASSOCIATION, AS TRUSTEE FOR ACE
SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES
2003-HS1, ASSET BACKED PASS-THROUGH CERTIFICATES
APPELLEE
v.
PERRY M. HENDERSON, FORMERLY KNOWN AS PERRY M.
BRYANT,
APPELLANT
UNITED STATES OF AMERICA,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00747)

Paul F. Enzinna, appointed by the court, argued the cause
and filed the briefs as amicus curiae in support of appellant.
Perry M. Henderson, pro se, filed the briefs for appellant.

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S. Mohsin Reza argued the cause and filed the brief for
appellee. David Chen entered an appearance.
Before: TATEL, Circuit Judge, and EDWARDS and
GINSBURG, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
GINSBURG, Senior Circuit Judge: Pro se defendant Perry
Henderson appeals the district court’s order granting plaintiff
Bank of New York Mellon’s motion for summary judgment
and dismissing Henderson’s counterclaims in this judicial
foreclosure action. For the following reasons, we affirm the
judgment of the district court.
I.

Background

In 2003, Henderson “encumbered [his house in
Washington, D.C.] with a Deed of Trust securing a fixed rate
balloon note … in the original principal amount of
$191,250.00.” Bank of New York Mellon Trust Co. v.
Henderson, 107 F. Supp. 3d 41, 43 (D.D.C. 2015). The
original lender was SouthStar Funding, LLC. Henderson
defaulted on the Note in 2012. Id. In 2013 SouthStar assigned
the Deed of Trust to the Bank. Henderson, however, claims the
assignment is invalid.
The Bank initially sought to foreclose on the property in
the Superior Court of the District of Columbia, but the case was
removed to federal court by the Internal Revenue Service. The
district court granted the Bank’s motion for summary judgment
on the ground that it was entitled to judicial foreclosure. The
court also dismissed Henderson’s counterclaims for (1)
“declaratory and injunctive relief based on plaintiff's failure to

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follow the proper procedures to foreclose a deed of trust in the
District of Columbia,” (2) “violations of the Fair Debt
Collection Practices Act,” (3) quiet title, (4) “violations of the
Fair Credit Reporting Act,” and (5) civil conspiracy. Id. at 43–
44. Henderson appeals the district court’s grant of summary
judgment to the Bank and the dismissal of his counterclaims.
This court appointed Paul F. Enzinna as amicus curiae to
present arguments in support of Henderson’s position and we
are grateful for his able, though unavailing, efforts.
II.

Analysis

This case presents two questions: (1) whether the grant of
summary judgment was proper given the dispute about the
validity of the assignment to the Bank and (2) whether
Henderson’s counterclaims were properly dismissed pursuant
to Federal Rule of Civil Procedure 12(b)(6). We affirm both
the district court’s grant of summary judgment and its dismissal
of Henderson’s counterclaims.
A. Summary Judgment
We review a grant of summary judgment de novo. Aref v.
Lynch, 833 F.3d 242, 250 (D.C. Cir. 2016). Summary
judgment is appropriate when, “viewing the evidence and the
inferences which may be drawn therefrom in the light most
favorable to the adverse party,” Pub. Citizen v. U.S. Dist. Court
for D.C., 486 F.3d 1342, 1345 (D.C. Cir. 2007), “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law,” FED. R. CIV. P. 56(a).
Henderson does not deny that he is in default on the Note,
nor does he contest the validity of the Note or the Deed. The
Bank attached a copy of the Note as Exhibit B of its verified
complaint and further asserted that it is the rightful owner of

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the Note and the successor in interest to the original trustee
listed in the allonge to the Note. Because Henderson provided
no evidence to indicate the Bank is not the rightful holder of
the Note, there is no genuine dispute of material fact that the
Bank holds the Note. See Neal v. Kelly, 963 F.2d 453, 457
(D.C. Cir. 1992) (verified complaint may be treated as the
“functional equivalent of an affidavit” for purposes of
summary judgment (internal quotation marks omitted)).
Because D.C. law allows the holder of a note to enforce the
deed of trust by judicial foreclosure, see Szego v. Kingsley
Anyanwutaku, 651 A.2d 315, 317 (D.C. 1994), the district court
properly entered summary judgment for judicial foreclosure.
B. Henderson’s Counterclaims
The district court dismissed Henderson’s counterclaims
under Rule 12(b)(6), which decision we review de novo.
Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir.
2006). “In determining whether a complaint states a claim, the
court may consider the facts alleged in the complaint,
documents attached thereto or incorporated therein, and
matters of which it may take judicial notice.” Id. Here,
however, the district court relied upon facts outside the
pleadings (and not within the scope of judicial notice). For
example, in dismissing Henderson’s claim for injunctive and
declaratory relief, the district court relied upon Exhibit E of the
Bank’s complaint as disproving Henderson’s allegation that the
Bank failed to provide notice of foreclosure counseling. 107
F. Supp 3d at 46. Similarly, in dismissing Henderson’s claim
to quiet title, the district court relied upon Exhibit C of the
Bank’s complaint (the Deed of Trust). Id. at 47. Although the
district court did not characterize the motion to dismiss as a
motion for summary judgment under Rule 56, FED. R. CIV. P.
12(d), it effectively treated the motion as such, see Ctr. for Auto
Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798,

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805 (D.C. Cir. 2006). Because “both sides had a reasonable
opportunity to present evidence and there are no genuine issues
of material fact,” Wiley v. Glassman, 511 F.3d 151, 160–61
(D.C. Cir. 2007), we, too, shall treat the motion as one for
summary judgment.
1. Federal and District of Columbia foreclosure procedures
Henderson counterclaimed for declaratory and injunctive
relief, arguing the Bank did not fulfill the requirements of
federal and D.C. law to foreclose on a house. 107 F. Supp 3d
at 46.
He argues the Bank was required by the National Housing
Act, 12 U.S.C. § 1701x(c)(5), to provide him notice of the
“availability of homeownership counseling” and, under D.C.
Code §§ 42-815 & 42-815.02, to provide him notice of his right
to “foreclosure mediation.” The Bank’s law firm did, however,
send Henderson a letter dated May 17, 2013 advising him of
his default and of a telephone number to call for
homeownership counseling. 107 F. Supp 3d at 46. Henderson
does not explain why this was insufficient notice. Insofar as
Henderson maintains that D.C. law requires mediation prior to
judicial foreclosure, he is, as the district court noted, clearly
mistaken. Id. (citing Rogers v. Advance Bank, 111 A.3d 25, 29
(D.C. 2015)).
Like the district court, we do not address Henderson’s
threadbare allegation that the Bank violated certain “Pooling
and Servicing” and “trust” agreements. Id. at 46 n.7. “A pro
se complaint … must be held to less stringent standards than
formal pleadings drafted by lawyers. But even a pro se
complainant must plead factual matter that permits the court to
infer more than the mere possibility of misconduct.” Atherton

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v. D.C. Office of Mayor, 567 F.3d 672, 681–82 (D.C. Cir. 2009)
(citations and internal quotation marks omitted).
2. Fair Debt Collection Practices Act
Henderson alleges the Bank violated the FDCPA, 15
U.S.C. § 1692 et seq., in several ways. That statute, however,
applies only to a “debt collector” as it defines the term. The
district court held the Bank was a not a “debt collector,” 107 F.
Supp. 3d at 47, and we agree.
The FDCPA creates two “mutually exclusive” categories,
debt collectors and creditors, but only debt collectors are
regulated by the statute. McKinney v. Cadleway Properties,
Inc., 548 F.3d 496, 498 (7th Cir. 2008). Under the FDCPA, a
debt collector is one
who uses any instrumentality of interstate commerce or the
mails in any business [1] the principal purpose of which is
the collection of any debts, or [2] who regularly collects or
attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another.
15 U.S.C. § 1692a(6). The Bank is neither type of debt
collector. There is no evidence to indicate the Bank’s
“principal” business is debt collection. Nor is the debt the Bank
is seeking to collect “due another”; on the contrary, the debt is
due to the Bank as the current holder of the Note and Deed of
Trust. That the debt was already in default when the Bank
purchased it did not make the Bank a debt collector. See
Henson v. Santander Consumer USA Inc., No. 16-349, slip op.
at 7–8 (U.S. June 12, 2017) (an entity collecting a debt for its
own account is not a “debt collector” under the FDCPA even if
it purchased the debt when it was in default). Therefore,
Henderson’s counterclaim under the FDCPA must fail.

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3. Quiet Title
Henderson seeks to quiet title and asserts in his
counterclaim that the Bank has no right to the property, of
which he is the owner in fee simple. As the Bank and district
court pointed out, however, this assertion is contradicted by the
Deed of Trust signed by Henderson. 107 F. Supp. 3d at 47.
The Bank has carried its burden of showing there is no
genuine dispute of material fact with respect to this
counterclaim. Therefore, summary judgment for the Bank is
proper.
4. Fair Credit Reporting Act
The district court dismissed Henderson’s counterclaim
under the FCRA on the ground that “there is no private cause
of action for the alleged violations.” 107 F. Supp. 3d at 47. We
need not pass upon that proposition because Henderson does
not challenge it in his brief on appeal and therefore has forfeited
this claim. See Fed. Election Comm’n v. Craig for U.S. Senate,
816 F.3d 829, 845 (D.C. Cir. 2016).
5. Civil Conspiracy
The district court also dismissed Henderson’s civil
conspiracy claim for failure to state “with particularity the
circumstances constituting fraud,” as required by Federal Rule
of Civil Procedure 9(b), and to provide evidence “to support an
inference of an agreement among the alleged conspirators,” to
wit, the Bank, “unknown new investors,” and the Bank’s
counsel. 107 F. Supp. 3d at 48. Henderson reiterates his claim
for civil conspiracy in his brief on appeal, but still refers us to
no facts to indicate the Bank entered into any agreement with

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anyone to defraud him. Because Henderson has failed to meet
the heightened pleading requirements for fraud, we affirm the
dismissal of this counterclaim.
III.

Conclusion

For the reasons stated above, the judgment of the district
court is
Affirmed.

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