FAM v. BANK OF AMERICA NA (USA) et al
MEMORANDUM OPINION regarding Ditech Financial LLC's 19 Motion to Dismiss, Bank of America, N.A.'s 25 Motion to Dismiss, and the plaintiff's 26 Motion for Default Judgment as to Bank of America, N.A. Signed by Chief Judge Beryl A. Howell on February 22, 2017. (lcbah4)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 15-1943 (BAH)
Chief Judge Beryl A. Howell
BANK OF AMERICA NA (USA) et al.,
Plaintiff Mark Fam, who is proceeding pro se, brings this action against his loan servicers
Bank of America, N.A. (“BANA”) and Green Tree Servicing LLC, now known as Ditech
Financial LLC (“Ditech”). First Am. Compl. (“FAC”) at 1, ECF No. 18. The plaintiff asserts
claims for violations of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1634 et seq., and the
Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., as well as for breach of
contract, common law fraud, and breach of the implied covenant of good faith and fair dealing.
These violations all stem from the plaintiff’s March 2012 mortgage refinancing. Id. ¶¶ 143-73.
Pending before the Court are Ditech and BANA’s respective Motions to Dismiss, see Mot.
Dismiss by Ditech Financial LLC, Green Tree Servicing LLC (“Ditech MTD”), ECF No. 19;
Mot. Dismiss by Bank of America NA (USA) (“BANA MTD”), ECF No. 25, and the plaintiff’s
motion for default judgment as to BANA, see Pl.’s Mot. Default Judgment as to Bank of
America (“Pl.’s Mot. Default Judgment”), ECF No. 26. Defendants move to dismiss the
complaint primarily for improper venue as well as for failure to state a claim upon which relief
may be granted, pursuant to Rules 12(b)(3) and 12(b)(6) respectively, of the Federal Rules of
Civil Procedure. For the reasons set forth below, the plaintiff’s case is transferred to the Eastern
District of Virginia.
The plaintiff, a resident of the Commonwealth of Virginia, refinanced his home with
BANA in March 2012, sought a forbearance in April 2013, and was purportedly granted a sixmonth forbearance in May 2013, with the possibility of an additional six-month extension. See
FAC ¶¶ 1, 4, 18, 24–29, 53. The plaintiff claims that in October 2013, he requested the second
six-month forbearance period. Id. ¶ 57. Nonetheless, in November 2013, servicing of the loan
was transferred to Ditech, which did not honor or consider the additional six-month forbearance.
See id. ¶¶ 69–70, 100. Instead, Ditech immediately attempted to collect arrearages on the loan
and, beginning in 2014, sought to foreclose the plaintiff’s home of thirty years. Id. ¶¶ 102–06.
The plaintiff also alleges that in August 2014, he “[e]ffected a [r]escission of the March 18, 2012
mortgage loan by sending a Notice of Rescission” to both BANA and Ditech. Id. ¶ 5; see also
id. ¶¶ 15, 106, 109, 113. The details relevant to the pending motions are discussed below.
A. The Mortgage Refinance
The plaintiff resides in Alexandria, Virginia and, on March 18, 2012, closed a home
refinance loan for his property with BANA. Id. ¶ 1. The settlement took place in Virginia at a
BANA branch with which the plaintiff was not familiar, though he notes that the loan closer
“was sent from an office in Washington, D.C.” and had “first suggested meeting at an office in
Washington D.C.” Id. The loan closer encouraged the plaintiff, who was not represented by
counsel, to sign the documents quickly. Id. Although the plaintiff was shown disclosure notices,
he was not given any notices to keep, as the loan closer left the room “to make copies” and never
returned. Id. ¶¶ 1-2. Eventually, bank employees asked the plaintiff to leave the branch, and
told the plaintiff to contact the loan closer in order to obtain copies of the documents he signed,
suggesting the plaintiff would receive the copies in the mail. Id. ¶¶ 2-3. The following day, the
plaintiff contacted the branch manager for the location where he signed the new mortgage loan in
hopes of contacting the loan closer. Id. The manager told the plaintiff, “I’ve not seen him
before,” and the plaintiff was at a loss for how to find the person who had taken the only copy of
his signed mortgage loan documents. Id. ¶ 3. The plaintiff was never given any copies of the
forms that he saw during the loan closing. Id. ¶ 4.
B. The Forbearance Agreement Promised by BANA, Followed by the Alexandria
City Police SWAT Team
In April 2013, just over a year after refinancing his mortgage, the plaintiff placed a series
of calls to BANA to “inquire about possible mortgage relief assistance options.” Id. ¶ 17.
During the first three calls, the plaintiff was given a variety of reasons why he was not eligible
for assistance, including the date of origination for the loan, that he was not behind on his
mortgage payment, and that his health concerns were not “cancer.” Id. ¶¶ 17-19. The plaintiff
“made a series of verbal and written complaints to the senior executives and to the Board of
Director[s].” Id. ¶ 22. At all times, the plaintiff was current on his mortgage, though he did
leave his job during this time period due to medical issues. Id. ¶¶ 20, 22.
The plaintiff subsequently discovered that the Federal National Mortgage Association,
commonly known as “Fannie Mae,” “had some stake in the home loan” and began lobbying
Fannie Mae “by telephone, emails, and by U.S. mail and by in-person visits to [Fannie Mae]
headquarters in” the District of Columbia. Id. ¶ 23. On May 7, 2013, a Fannie Mae senior
manager informed the plaintiff that several relief assistance programs were available to him and
that her office had instructed BANA to contact the plaintiff about those options. Id. ¶¶ 23-24.
Later that same day, Daniel Whitehead, “a Vice President-Unit Manager in . . . [BANA’s]
Default Servicing Complaint Resolution Department” contacted the plaintiff and offered: “A)
one-year forbearance, with no payments; divided into two ‘six-month segments[,]’, and, B) no
escrow, no tax capture or insurance payment, and C) no adverse notations in [BANA] records,
and D) no negative credit reporting to any consumer reporting agency, and, E) no late fees would
be charged to the [plaintiff’s] account for the duration of the Special Forbearance.” Id. ¶ 24.
Whitehead added “that the arrearage created by the one-year forbearance would be ‘put on the
back end of the loan.’” Id. The plaintiff requested a chance to “think about the offer overnight
and said he would call Whitehead the next day.” Id.
The next day, May 8, 2013, Whitehead told the plaintiff that he “had full authority to
produce and secure the forbearance agreement and that . . . all the [plaintiff] had to do was notify
[Whitehead] that [the plaintiff] needed the second half of the forbearance.” Id. ¶ 27. The
plaintiff agreed to all of the terms except that he requested to pay some amount each month of
the forbearance. Id. ¶ 29. The parties agreed that the plaintiff would pay $425 on the 15th of
each month during the forbearance. Id.
When the plaintiff received the Special Forbearance Agreement (“SFA”) via email on
May 17, 2013 and FedEx on May 18, 2013, however, the documents were dated May 10, 2013,
“two days after the [plaintiff] and Whitehead entered into a verbal agreement on the terms and
conditions of the SFA,” and required that the first payment under the agreement be paid by May
15, 2013. Id. ¶¶ 30-31. The plaintiff “rushed to a BANA branch and forced them to accept”
payment, but the account was marked late and late fees were charged. Id. ¶ 32 (footnote
omitted). On May 25, 2013, the plaintiff received another letter from BANA, requiring payment
by May 15, 2013, and indicating that the SFA may be cancelled in the event of late payment. Id.
¶ 33. The June 2013 statement included a late fee for the May payment. Id. ¶¶ 34, 38. After
receiving the June statement, the plaintiff attempted to contact Whitehead multiple times
regarding the late fees. Id. ¶ 38. The plaintiff states that each payment was made on time at a
BANA branch, but negative reports were given to the three credit bureaus. Id. ¶¶ 34–35.
On June 19, 2013, the plaintiff received an email from Whitehead, which stated that
following successful completion of the SFA, “the late charges will be waived from the account
prior to the reinstatement of the loan through either the creation of a repayment plan,
modification, or full reinstatement.” Id. (italics omitted).
Notwithstanding Whitehead’s assurances, shortly after receiving the June statement, the
plaintiff received a letter that the “entire SFA was in complete default.” Id. ¶ 41. The next day,
the plaintiff received a Notice of Intent to Accelerate, which was dated June 26, 2013. Id. ¶ 42.
That notice required two full monthly payments plus late fees by August 5, 2013, in order to cure
the debt, “otherwise BANA would commence foreclosure proceedings.” Id. ¶ 42. After
speaking with Whitehead about the Notice of Intent to Accelerate, Whitehead sent the plaintiff
an email stating, “I have reinstated the Special Forbearance and will continue to monitor the
account weekly going forward.” Id. ¶ 44.
On July 3, 2013, in a conversation with Whitehead, the plaintiff stated: “You are driving
me insane, I can hardly breathe any longer, I kept my end of the bargain.” Id. ¶ 47. Shortly
thereafter, the Alexandria City Police SWAT team arrived at the plaintiff’s house, consisting of
“a half a dozen officers, multiple vehicles, in front of the [plaintiff’s] home.” Id. ¶¶ 48-49.
When the plaintiff inquired as to why the police had arrived, the police informed him that,
“[y]our bank called us from California.” Id. ¶ 48. The plaintiff states that “it was later
determined after examination of records that Whitehead had reported the Plaintiff as some ‘sort
of danger.’” Id. Following this, the plaintiff went to the Alexandria Police headquarters and
“discovered that there was now a permanent ‘Police Record’ associated with his property and
that information would appear on any police system that searched the [plaintiff’s] address,”
which the plaintiff believes could impact his future employment opportunities. Id. ¶ 51.
On October 15, 2013, Whitehead called the plaintiff to remind him that the first segment
of the SFA was almost up and ask if he needed the second segment. Id. ¶ 56. The plaintiff
requested the second six-month forbearance. Id. ¶ 57. Whitehead told the plaintiff that an
associate would prepare the documents and that the plaintiff should receive them by October 18,
2013. Id. ¶¶ 57–58. This was the last time the plaintiff interacted with Whitehead, and the
plaintiff never received the promised documents. Id. ¶ 59.
On October 23, 2013, the plaintiff reached out to Fannie Mae. Id. ¶¶ 60, 64. The
supervisor he spoke with “informed [the plaintiff] that there was . . . no notation in the system
that showed anyone at [BANA] had submitted a SFA extension request,” which is required for
any forbearance over six months. Id. ¶ 64. The supervisor noted her concern that nothing had
been submitted, as “it was highly unlikely that [Fannie Mae] would receive [BANA’s] extension
request, review it, and approve it within the eight (8) days remaining in the month.” Id. ¶ 65.
C. Transfer to Ditech and Subsequent Events
On October 21, 2013, the plaintiff received a letter, dated October 16, 2013, that his loan
was past due and would be “forwarded for foreclosure proceeding if the [plaintiff] did not
immediately cure the outstanding debt.” Id. ¶ 69. The next day, October 22, 2013, the plaintiff
received a notice that the servicing of his loan had been transferred to Ditech. Id. ¶ 70. This
notice was dated five days before the conversation with Whitehead about the second part of the
forbearance agreement. Id.
On October 28, 2013, Sasha Rainey, a Vice President and colleague of Whitehead’s at
BANA, called the plaintiff and informed him that she was taking over for Whitehead. Id. ¶ 73.
Rainey stated she was “approving and confirming activation of the second part of the
forbearance,” and had started the approval process with Fannie Mae. Id. ¶ 74. She also noted
that she had waived the late fees, was looking into the credit reporting issues, and was attempting
to set up the forbearance before the transfer to Ditech. Id. ¶¶ 73–76. Rainey stated that she
“personally submitted the SFA extension request directly to [Fannie Mae] and asked that its
review be expedited.” Id. ¶ 79. The plaintiff states he “knew there was virtually no chance that
[Fannie Mae] would be processing Rainey’s submission” before the expiration of the first
segment of the SFA. Id. ¶ 80. This was the only interaction that the plaintiff had with Rainey
and “[e-]mails and voice mail messages went unanswered.” Id. ¶ 82. At some point, a Fannie
Mae supervisor informed the plaintiff that the request for a second six-month forbearance had
indeed been submitted, but was denied because it was incomplete. Id. ¶ 84.
On October 31, 2013, Vanessa Lee called the plaintiff and identified herself as his new
contact with BANA, informed him that Rainey was “no longer involved with the [plaintiff’s]
account], took note of his concerns, and said she would “turn her notes over to a review panel,”
which would have 30 days to provide a resolution. Id. ¶¶ 88-89. The plaintiff asked how the
transfer to Ditech would be impacted. Id. ¶ 91. Lee responded that she was unaware of a
transfer and requested that plaintiff read the transfer notice. Id. Afterward, Lee said “This
information is only good until 5:00 pm today, sir,” adding that “You’re going to hear from a new
representative within 24 hours from [Ditech],” id. ¶ 92.
Ditech immediately began collection on the mortgage and “denied existence . . . of ANY
forbearance previously established by BANA.” Id. ¶ 98 (emphasis in original). The plaintiff’s
first contact with Ditech, on November 18, 2013, did nothing to convince Ditech that a
forbearance had been in place. Id. ¶ 99. Ditech refused to accept any payment “unless the past
due accrual of six full months (the first segment of the SFA period) was paid first” and “ordered
a Trustee to hold a non-judicial foreclosure sale,” which was scheduled for August 19, 2014 but
was later cancelled. Id. ¶¶ 102–04, 106.
On August 4, 2014, the plaintiff claims to have “[e]ffected a [r]escission of the March 18,
2012 mortgage loan by sending a Notice of Rescission” by certified mail to four BANA
addresses, Ditech’s legal counsel, Fannie Mae, the named Trustee on the Deed of Trust, and the
Consumer Financial Protection Bureau. Id. ¶ 5. The copy of the rescission was recorded by the
Clerk of the City of Alexandria. Id.
On August 19, 2014, the date of the first foreclosure sale, the plaintiff spoke with two of
Ditech’s employees to inform them that he had rescinded the loan. Id. ¶¶ 116–18. A supervisor
told the plaintiff that, “[Ditech] doesn’t own the loan.” Id. ¶ 118. Nonetheless, the plaintiff
alleges that, on November 15, 2014, Ditech “notified the [p]laintiff it had acquired BANA’s
interest in his home mortgage loan.” Id. ¶ 167. One year later, in September 2015, Ditech again
notified the plaintiff that foreclosure proceedings would commence if the plaintiff did not cure
the loan in full. Id. ¶ 129.
D. Procedural History
The plaintiff filed his original complaint on October 31, 2015. See Compl., ECF No. 1.
Initially, the defendants included Ditech, Fannie Mae, BANA, Daniel Whitehead, and Rosenberg
& Associates, LLC (“Rosenberg”), counsel for Ditech for the purposes of foreclosing on the
plaintiff’s property. See Compl. at 2-4; see also Mem. Supp. Mot. Dismiss by Rosenberg &
Associates, LLC (“Rosenberg Mem.”) at 1, ECF No. 4-1.
On December 1, 2015, the plaintiff filed an emergency motion for a temporary
restraining order or preliminary injunction to prevent a foreclosure sale of his home scheduled
for December 2, 2015. Pl.’s Mot. Temporary Restraining Order, ECF No. 7. When the Court
held a hearing by teleconference, Ditech informed the Court that the sale had been cancelled and
the Court subsequently denied the plaintiff’s motion as moot. Minute Order, December 2, 2015.
On February 23, 2016, the plaintiff filed a motion for leave to file an amended complaint.
See Pl.’s Mot. for Leave to File First Amended Complaint, ECF No. 15. Ditech opposed the
motion on the grounds that venue was improper and thus, any amended complaint would be
“futile.” See Ditech’s Opp’n Pl.’s Mot. for Leave to File First Amended Complaint at 3-4, ECF
No. 17. On March 18, 2016, this Court granted the plaintiff’s motion for leave to file an
amended complaint, concluding that plaintiff’s proposed amendment was not “facially futile,
particularly because pro se pleadings are held ‘to less stringent standards than formal pleadings
drafted by lawyers.’” Minute Order, March 18, 2016 (quoting Haines v. Kerner, 404 U.S. 519,
520 (1972)). In the FAC, filed on March 18, 2016, the plaintiff removed Rosenberg, Fannie
Mae, and Whitehead as named defendants. FAC at 1.
The following month, on April 4, 2016, Ditech filed its motion to dismiss for improper
venue and for failure to state a claim upon which relief may be granted, pursuant to Rules
12(b)(3) and 12(b)(6), respectively, of the Federal Rules of Civil Procedure. On April 13, 2016,
a summons was issued electronically as to BANA and Ditech. Unnumbered ECF Entry, April
On June 17, 2016, the plaintiff filed a Return of Service/Affidavit, purporting to show
that service had been perfected upon defendants, including upon BANA by serving a branch
manager, Amy Dawn Rufino, at a BANA branch located at 1090 Vermont Avenue NW,
Washington, D.C. 20005 (the “Vermont Ave. Branch”). Return of Service/Affidavit, ECF No.
24. According to BANA, Rufino no longer works for the company and BANA has been unable
“to inquire with Ms. Rufino regarding the alleged service.” BANA Opp’n Pl.’s Mot. for Default
Judgment (“BANA Opp’n Def. Judg.”) at 3 ¶ 4, ECF No. 28. The plaintiff’s service affidavit is
signed by Ryan Davis with a title of “Field Specialist/Litigation.” Return of Service/Affidavit at
3. As BANA notes, the affidavit does not indicate that Davis works for a particular company
and provides only a Mahopac Falls, NY mailing address with no telephone number or e-mail.
See BANA Opp’n Def. Judg. at 3 ¶ 5; Return of Service/Affidavit at 1-3. BANA also notes the
affidavit does not provide any statement as to how the summons and complaint were served upon
Rufino, nor is it accompanied with an exhibit with Rufino’s signature or any other evidence that
she received copies of the summons and complaint. See BANA Opp’n Def. Judg. at 4 ¶ 7.
Six months after the filing of the FAC, BANA had neither answered the complaint nor
filed any dispositive motion. This Court issued an Order to Show Cause why the action against
BANA should not be dismissed for failure to prosecute, pursuant to Local Civil Rule 83.23 and
Federal Rule of Civil Procedure 41(b), or alternatively, instructing the plaintiff to seek default
judgment, pursuant to Federal Rule of Civil Procedure 55. Minute Order, Oct. 6, 2016. BANA
explains that shortly after October 6, 2016, it first became aware of the FAC when counsel for
Ditech e-mailed a copy of the FAC to BANA and informed BANA of the Court’s Minute Order.
BANA Opp’n Def. Judg. at 4 ¶ 9; see also id. Aff. of BANA Vice President, Legal Department
Administration, at ¶¶ 5-6, ECF No. 28-2.
On October 28, 2016, BANA filed its own motion to dismiss, refusing to “concede that
the Plaintiff has perfected service of process . . . .” BANA MTD, at 1. With regard to the
plaintiff’s TILA, breach of the implied covenant of good faith and fair dealing, and breach of
contract claims, BANA “adopt[ed] and incorporate[d] . . . by reference the arguments offered by
[Ditech]” in its motion to dismiss. Id. at 2. As for the plaintiff’s claim of common law fraud by
BANA, BANA argues the plaintiff fails to allege “with particularity all necessary elements of the
cause of action.” Id.
The plaintiff subsequently filed a motion for default judgment as to BANA. In his
motion, the plaintiff references his Return of Service/Affidavit of Summons and Complaint
Executed, which was filed with the Court on June 17, 2016. In his affidavit, the plaintiff states
that he served a summons on “Amy Dawn Rufino,” the Financial Center Operations Manager for
BANA on June 2, 2016. Pl.’s Return of Service/Affidavit of Summons and Complaint Executed,
ECF No. 24.
Rule 12(b)(3) of the Federal Rules of Civil Procedure authorizes a party to move to
dismiss a case for “improper venue.” FED. R. CIV. P. 12(b)(3). Similarly, the federal venue
statute, 28 U.S.C. § 1406(a), requires that a district court “dismiss, or if it be in the interest of
justice, transfer” a case, which is filed “in the wrong division or district.” 28 U.S.C. § 1406(a).
Together, “Section 1406(a) and Rule 12(b)(3) allow dismissal only when venue is ‘wrong’ or
‘improper’. . . in the forum in which [the case] was brought.” Atl. Marine Constr. Co. v. U.S.
Dist. Court, 134 S. Ct. 568, 577 (2013). “Whether venue is ‘wrong’ or ‘improper’ depends
exclusively on whether the court in which the case was brought satisfies the requirements of
federal venue laws, . . . .” Id.
The moving party objecting to venue must provide “sufficient specificity to put the
plaintiff on notice of the defect” that the case fails to fall within one of the three categories set
out in section 1391(b). 14D CHARLES ALAN WRIGHT et al., FEDERAL PRACTICE AND PROCEDURE
§ 3826, at 496 (4th ed. 2013). Nonetheless, the burden remains on the plaintiff to establish that
venue is proper since it is “‘the plaintiff’s obligation to institute the action in a permissible
forum, . . . .’” Williams v. GEICO Corp., 792 F. Supp. 2d 58, 62 (D.D.C. 2011) (quoting
Freeman v. Fallin, 254 F. Supp. 2d 52, 56 (D.D.C. 2003)); see also Ananiev v. Wells Fargo
Bank, N.A., 968 F. Supp. 2d 123, 129 (D.D.C. 2013) (citing 14D CHARLES ALAN WRIGHT et al.,
FEDERAL PRACTICE AND PROCEDURE § 3826, at 502, 505–06 (“[W]hen [an] objection has been
raised, the burden is on the plaintiff to establish that the district he [or she] chose is a proper
venue [,] . . . consistent with the plaintiff's threshold obligation to show that the case belongs to
the particular district court in which the suit has been instituted.”)).1
In assessing a motion for improper venue, the court “‘accepts the plaintiff’s well-pled
factual allegations regarding venue as true, draws all reasonable inferences from those
allegations in the plaintiff's favor and resolves any factual conflicts in the plaintiff's favor.’”
McCain v. Bank of Am., 13 F. Supp. 3d 45, 51 (D.D.C. 2014), aff’d sub nom. McCain v. Bank of
Am. N.A., 602 Fed. App’x 836 (D.C. Cir. 2015) (quoting Wilson v. Obama, 770 F. Supp. 2d 188,
190 (D.D.C. 2011) (quoting James v. Verizon Servs. Corp., 639 F. Supp. 2d 9, 11 (D.D.C.
2009))); see also Darby v. U.S. Dep’t of Energy, 231 F. Supp. 2d 274, 276 (D.D.C. 2002)). “The
Court, however, need not accept the plaintiff’s legal conclusions as true, and may consider
material outside the pleadings, including undisputed facts evidenced in the record, to determine
whether it has jurisdiction in the case.” Ananiev v. Wells Fargo Bank, N.A., 968 F. Supp. 2d at
129 (quoting Ebron v. Dep’t of Army, 766 F. Supp. 2d 54, 57 (D.D.C. 2011) (citing Jerome
Although the D.C. Circuit has not had occasion to opine on the issue, this Court has consistently held that
the burden remains on the plaintiff. See, e.g., Chandler v. Stover, No. CV 15-0012 (BAH), 2016 WL 5675687, at *6
(D.D.C. Sept. 30, 2016) (citing Walden v. Locke, 629 F. Supp. 2d 11, 13 (D.D.C. 2009)); Delta Sigma Theta
Sorority Inc. v. Bivins, 20 F. Supp. 3d 207, 211 (D.D.C. 2014) (citing Williams v. GEICO Corp., 792 F. Supp. 2d at
62); McCain v. Bank of Am., 13 F. Supp. 3d 45, 50 (D.D.C. 2014) aff’d sub nom. McCain v. Bank of Am. N.A., 602
F. App’x 836 (D.C. Cir. 2015); Abraham v. Burwell, 110 F. Supp. 3d 25, 28 (D.D.C. 2015); Roland v. Branch
Banking & Trust Corp., 149 F. Supp. 3d 61, 68 (D.D.C. 2015); Ananiev v. Wells Fargo Bank, N.A., 968 F. Supp. 2d
at 129; Gipson v. Wells Fargo & Co., 563 F. Supp. 2d 149, 152 (D.D.C. 2008).
Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005); Coal. for
Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003); Herbert v. Nat’l Acad.
of Sci., 974 F.2d 192, 197 (D.C. Cir. 1992); Haley v. Astrue, 667 F. Supp. 2d 138, 140 (D.D.C.
The plaintiff is seeking declaratory, injunctive, and monetary relief to prevent the
defendant from collecting on a loan and foreclosing his home and to compensate him for the
allegedly unlawful actions to collect on the loan thus far. FAC at 57–60. Although Ditech
requests dismissal of the plaintiff’s complaint, Ditech also recognizes that transfer to the Eastern
District of Virginia could be appropriate. Ditech Mem. Supp. Mot. Dismiss (“Ditech Mem.”) at
5, ECF No. 19-1. Based, at least in part, on the mistaken belief that “[v]enue is appropriate
[where] complete diversity exists,” the plaintiff has filed his lawsuit in the District of Columbia.
FAC at 5. As explained below, however, this jurisdiction is not the proper venue for this action.
The standard for improper venue is applied to the plaintiff’s complaint and assessed below. The
question of whether the action should be dismissed, or instead transferred to an appropriate
venue, is discussed thereafter.
A. Venue is Properly in the Eastern District of Virginia
Although the plaintiff argues that the TILA does not have a venue provision, Pl.’s Opp’n
Ditech’s Mem. at 4–5, ECF No. 22, it is the general federal venue statute that “govern[s] the
venue of all civil actions brought in district courts of the United States,” unless “otherwise
provided by law,” 18 U.S.C. § 1391(a).
The federal venue statute provides three bases for venue. First, venue is proper in a
“judicial district in which any defendant resides, if all defendants are residents of the State in
which the district is located.” 28 U.S.C. § 1391(b)(1). Here, the plaintiff states that Ditech and
BANA reside outside of the District of Columbia, as Ditech’s corporate headquarters are in
Pennsylvania and BANA’s corporate headquarters are in North Carolina. FAC at 4. Thus, the
first basis for venue is inapplicable.
Second, venue is proper in “a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of property that is the subject of
the action is situated.” 28 U.S.C. § 1391(b)(2). According to the complaint, although the loan
was closed by an officer who “was sent from an office in Washington, D.C.” and had “first
suggested meeting at an office in Washington, D.C.,” FAC ¶ 1, the property in question is
located in Virginia, the alleged loan rescission was recorded in Virginia, and cancelled
foreclosure sales of the plaintiff’s home have been in Virginia. Id. ¶¶ 1, 5, 130. Hence, the
second basis for venue is also inapplicable. See Roland v. Branch Banking & Trust Corp., 149 F.
Supp. 3d 61, 68 (D.D.C. 2015) (finding the second basis for venue inapplicable for a similar
action in D.C. where a complaint alleged that the relevant property was located in Maryland and
the foreclosure proceeding at issue took place in Maryland).
Finally, if no other district is appropriate, venue is proper in “any judicial district in
which any defendant is subject to the court’s personal jurisdiction with respect to such action.”
28 U.S.C. § 1391(b)(3). In this case, venue is proper in another district, rendering this prong of
the general venue statute unavailable here. Specifically, venue for this case would be proper in
the Eastern District of Virginia, as the plaintiff is a citizen of Virginia, the property in question is
located in that district, the plaintiff recorded the alleged rescission in that district, and any
foreclosure would occur in that district. FAC ¶¶ 1, 5, 130. Indeed, although Ditech proposes
that dismissal, rather than transfer, is warranted, Ditech concedes that the Eastern District of
Virginia would be an appropriate venue for this action. Ditech Mem. at 5. Consequently, this
action is brought in the wrong district.
The plaintiff opposes transfer to the Eastern District of Virginia, contending that “[t]he
property does not have to have any connection to the District of Columbia in order to take
advantage of this District Court,” particularly if the defendants are not “inconvenienced by the
alternate District choice.” Pl.’s Opp’n Ditech’s MTD at 5. Additionally, the plaintiff argues that
Fannie Mae—described by the plaintiff as an “erstwhile Defendant” or “fertile witness”—resides
in the district, and the district “offers airports and much nicer accommodations than anything
Virginia has to offer.” Pl.’s Opp’n Ditech’s MTD at 5 (internal quotation marks omitted).
At the outset, as Ditech notes, “[i]t is hard to imagine a more convenient forum for
Plaintiff” than the Eastern District of Virginia “since the Property is located in Alexandria,
Virginia where . . . the United States District Court for the Eastern District of Virginia is also
located.” Ditech Mem. at 8. In any event, the plaintiff appears to confuse the standard of 28
U.S.C. § 1406(a) with § 1404(a), and makes arguments pertinent only to the latter section.
Section 1404(a) permits district courts “[f]or the convenience of parties and witnesses” and “in
the interest of justice” to “transfer any civil action to any other district or division where it might
have been brought or to any district or division to which all parties have consented.” 28 U.S.C. §
1404(a). Whereas Section 1406(a) is premised on an action being brought in the “wrong”
district, “[Section] 1404(a) does not condition transfer on the initial form’s being ‘wrong,’”
rather “it permits transfer to any district where venue is also proper (i.e., ‘where [the case] might
have been brought.)’” Atl. Marine Constr. Co. v. U.S. Dist. Court, 134 S.Ct. at 579; see also
Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (“Section 1404(a) is intended to place
discretion in the district court to adjudicate motions for transfer according to an ‘individualized,
case-by-case consideration of convenience and fairness.’” (quoting Van Dusen v. Barrack, 376
U.S. 612, 622 (1964))). Thus, while “convenience of parties and witnesses” plays a role in a
transfer under Section 1404(a), these considerations are irrelevant to this case, where the
plaintiff’s complaint has, as explained above, simply been filed in the wrong venue.
Finally, the plaintiff seeks to keep his case in this judicial district because this Court has
both diversity and subject-matter jurisdiction over his claims, FAC at 5, but the Eastern District
of Virginia does too. In addition to having subject-matter jurisdiction over the plaintiff’s federal
claims, the allegations in the FAC indicate that the U.S. District Court for the Eastern District of
Virginia would also have diversity jurisdiction, under 28 U.S.C. § 1332, since, according to the
FAC, the plaintiff is a resident of Virginia, BANA’s corporate headquarters is in Charlotte,
North Carolina, and Ditech’s corporate headquarters is in Fort Worth, Pennsylvania. FAC at 4.
Thus, complete diversity appears to exist between all the parties. See CostCommand, LLC v. WH
Administrators, Inc., 820 F.3d 19, 21 (D.C. Cir. 2016) (“A corporation is a citizen of its place or
places of incorporation, as well as its principal place of business.” (citing 28 U.S.C. §
In sum, the District of Columbia is an improper venue. The complaint contains no
allegations that any of the defendants reside in the District of Columbia, that the property at issue
is located in the District of Columbia, or that the allegedly unlawful activities, including the
foreclosure action on the plaintiff's property, had any connection to this jurisdiction. Finally, the
Eastern District of Virginia is an appropriate venue for this action. The question of whether
transfer to that district, or dismissal of the action, as urged by the defendants, is appropriate is
B. Transfer rather than dismissal is appropriate
Under 28 U.S.C. § 1406(a), the district court shall dismiss an action filed in an improper
venue or, if it is in the interest of justice, transfer such case to any district in which it could have
been brought. See Sharp Elecs. Corp. v. Hayman Cash Register Co., 655 F.2d 1228, 1230 (D.C.
Cir. 1981). The decision whether to dismiss or transfer “in the interest of justice” is committed
to the discretion of the district court. Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C.
Cir. 1983). Transfer, rather than dismissal, is in the interests of justice in this particular case for
at least three reasons.
First, the “standard remedy for improper venue is to transfer the case to the proper court
rather than dismissing it—thus preserving a [plaintiff’s] ability to obtain review.” Nat’l Wildlife
Fed’n v. Browner, 237 F.3d 670, 674 (D.C. Cir. 2001) (explaining that the “standard remedy for
improper venue is to transfer the case to the proper court rather than dismissing it—thus
preserving a [plaintiff’s] ability to obtain review” (internal citation omitted)); see also Delta
Sigma Theta Sorority Inc. v. Bivins, 20 F. Supp. 3d 207, 218 (D.D.C. 2014) (“[T]he interest of
justice generally requires transferring a case to the appropriate judicial district in lieu of
dismissal.” (quoting Johnson v. Deloitte Servs., LLP, 939 F. Supp. 2d 1, 6 (D.D.C. 2013)
(quoting Ellis-Smith v. Sec’y of the Army, 793 F. Supp. 2d 173, 177 (D.D.C. 2011)))). Moreover,
courts have concluded that the presumption in favor of transfer is especially strong where a
plaintiff files a complaint pro se. See Roland v. Branch Banking & Trust Corp., 149 F. Supp. 3d
at 68–69 (D.D.C. 2015) (reasoning that it “would be more efficient and economical to transfer
the case to the District of Maryland, rather than . . . [the] a pro se plaintiff to re-file and reserve his Complaint in another District” (citing 14D CHARLES ALAN WRIGHT, ARTHUR R.
MILLER & EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE § 3827 (3d ed. 2015)
(“District courts are also likely to order transfer rather dismissal than if it would be more
efficient or economical to do so . . . .”))); King v. Caliber Home Loans, Inc., No. CV 15-2061
(RDM), 2016 WL 5415623, at *5 (D.D.C. Sept. 28, 2016) (expressing agreement with Roland
that “it would be more efficient and economical to transfer [a] case . . . rather than force [the pro
se plaintiffs] to re-file and re-serve [their] complaint in another District” (quoting Roland v.
Branch Banking & Trust Corp., 149 F. Supp. 3d at 68–69)); Willis v. Green Tree Servicing, LLC,
156 F. Supp. 3d 121, 123 (D.D.C. 2015) (“A plaintiff who is proceeding pro se . . . ‘merit[s]
additional leniency’ in deciding whether a case should be transferred.” (internal citations omitted
and alteration adopted)); Bond v. ATSI/Jacksonville Job Corps Ctr., 971 F. Supp. 2d 33, 36–37
(D.D.C. 2013) (holding that transfer, rather than dismissal, was especially warranted “when a
plaintiff files a complaint pro se”) (quoting James v. Verizon Servs. Corp., 639 F .Supp. 2d at
15); Patel v. Phillips, 933 F. Supp. 2d 153, 166 (D.D.C. 2013) (concluding that dismissal was not
“appropriate in the circumstances of this case,” in part “because plaintiff is proceeding pro se”);
Coltrane v. Lappin, 885 F. Supp. 2d 228, 235 (D.D.C. 2012) (“[T]ransfer is particularly favored
over dismissal when the plaintiff is proceeding pro se.”); McQueen v. Harvey, 567 F. Supp. 2d
184, 188 (D.D.C. 2008) (noting that transfer was favored because the “plaintiff’s status as a pro
se plaintiff at the time of his filing also merit[ed] additional leniency”); cf. Haines v. Kerner, 404
U.S. at 520 (noting that plaintiffs are “[held] to less stringent standards than formal pleadings
drafted by lawyers”); Fletcher v. Reilly, 433 F.3d 867, 877 (D.C. Cir. 2006); Childers v. Mineta,
205 F.R.D. 29, 31 (D.D.C. 2001) (explaining that pro se litigants are given more latitude to
correct defects in service of process and pleadings).
Second, another consideration is “whether transfer would prejudice Defendant's position
on the merits.” McQueen v. Harvey, 567 F. Supp. 2d at 188 (citing Sinclair v. Kleindienst, 711
F.2d 291, 293–94 (D.C. Cir. 1983)); James v. Verizon Servs. Corp., 639 F. Supp. 2d at 15.
Generally, defendants are not significantly prejudiced by transfer. As the D.C. Circuit has
observed, “[r]efusal to transfer spells the end to the action, while transfer would not prejudice the
defendants’ position on [the] merits,” and “[t]he Supreme Court has inferred a congressional
purpose underlying section 1406(a) favoring the transfer of cases when procedural obstacles
‘impede an expeditious and orderly adjudication . . . on the merits.’” Sinclair v. Kleindienst, 711
F.2d at 293–94 (quoting Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466–67 (1962)). Although
both defendants dispute whether the plaintiff has adequately stated a claim, they have not
claimed that they would be prejudiced if the case were transferred to the Eastern District of
Virginia rather than dismissed, which would require the plaintiff to simply re-file the action in
that district. See James v. Verizon Servs. Corp., 639 F. Supp. 2d at 15. Indeed, Ditech embraces
the fact that this case should either be dismissed or transferred to the Eastern District of Virginia.
Ditech Mem., at 5 (“The Complaint should be dismissed or at least transferred to the United
States District Court for the Eastern District of Virginia . . . .”).
Third, while the D.C. Circuit has recognized that dismissal is often appropriate “when the
outcome is foreordained,” Simpkins v. District of Columbia Gov't, 108 F.3d 366, 371 (D.C. Cir.
1997), or the complaint has serious “substantive problems,” Buchanan v. Manley, 145 F.3d 386,
389 n.6 (D.C. Cir. 1998), such obvious substantive defects are not at all apparent in the instant
complaint. Thus, although courts “decline to decide the merits of the plaintiff’s claim when it
has already determined that it is an improper venue for adjudicating it,” Roman-Salgado v.
Holder, 730 F. Supp. 2d 126, 131 (D.D.C. 2010), courts often “take a peek at the merits” when
deciding whether transfer is in the interests of justice, Laukus v. United States, 691 F. Supp. 2d
119, 127 (D.D.C. 2010) (citing Phillips v. Seiter, 173 F.3d 609, 610–11 (7th Cir. 1999)). Cases
that have been dismissed rather than transferred include cases where the plaintiff’s claims would
be procedurally barred by res judicata or the Rooker-Feldman doctrine, McDermott v. BB&T
Bank Corp., No. 1:16-CV-00532 (APM), 2017 WL 27929, at *1 (D.D.C. Jan. 3, 2017); Walsh v.
Bank of Am. NA, 113 F. Supp. 3d 108, 114 (D.D.C. 2015) (dismissing plaintiff’s claims that
would subject to claim preclusion in the other district, but transferring a remaining TILA claim);
McCain v. Bank of Am., 13 F. Supp. 3d at 55 (dismissing claims “previously raised by the
plaintiff in an earlier suit against the same defendants, premised on the foreclosure of the same
property”); Ananiev v. Wells Fargo Bank, N.A., 968 F. Supp. 2d at 132 (finding transfer would
be futile because the plaintiff’s claims would be subject to claim preclusion), where plaintiffs
alleged violations of “their due process rights” but defendants were not state actors and thus
plaintiffs’ claims would fail if transferred, Williams v. Wells Fargo Bank N.A., 53 F. Supp. 3d 33,
38 (D.D.C. 2014), or where a complaint would “likely have to be dismissed” because it did not
“plead administrative exhaustion” as required for the plaintiff’s claims, Roman-Salgado v.
Holder, 730 F. Supp. 2d at 131. Review of the detailed allegations set out in the plaintiff’s
complaint, and the defendants’ memoranda supporting their motions to dismiss, reveals none of
the readily apparent “substantive problems” that would merit dismissal here.2 Especially given
the strong presumption in favor of transfer, the interests of justice weigh in favor of transferring
Courts may transfer a case to any jurisdiction which would have personal jurisdiction
over the defendants and in which venue is proper. See 28 U.S.C. § 1406(a). Although BANA
does not express a view as to transfer, Ditech concedes that the Eastern District of Virginia
Although defendants also argue the plaintiff’s claims should be dismissed for failure to state a claim upon
which relief may be granted, determining the merits of those motions would require more than merely taking a
“peek” at the merits of the plaintiff’s claims, Laukus v. United States, 691 F. Supp. 2d at 127, particularly when the
Court has “already determined that it is an improper venue for adjudicating it,” Roman-Salgado v. Holder, 730 F.
Supp. 2d at 131. Accordingly, because this Court transfers the case to the U.S. District Court for the Eastern District
of Virginia, it does not reach the merits of defendants’ motion to dismiss for failure to state a claim under Rule
12(b)(6), or the plaintiff’s motion for default judgment against BANA.
would be an appropriate venue for this case, see Ditech Mem. at 5 (“The Eastern District of
Virginia is the Proper Venue for this Lawsuit”), and as noted above, this jurisdiction would
satisfy the venue statute of § 1391(b)(3) as “a substantial part of the events or omissions giving
rise to the [the plaintiff’s] claim[ ] occurred” in the Eastern District of Virginia, 28 U.S.C. §
1391(b). Thus, since the claim “could have been brought” in the Eastern District of Virginia
under 28 U.S.C. §§ 1391(b)(3), the Court finds it is in the interest of justice to transfer this case,
pursuant to 28 U.S.C. § 1406(a), to the Eastern District of Virginia.
For the reasons stated above, the Court TRANSFERS this case to the United States
District Court for the Eastern District of Virginia, which is the proper venue to consider
An appropriate Order accompanies this Memorandum Opinion.
Digitally signed by Hon. Beryl A. Howell,
U.S. District Court Judge
DN: cn=Hon. Beryl A. Howell, U.S. District
Court Judge, o=U.S. District Court for the
District of Columbia, ou,
Date: 2017.02.22 12:01:08 -05'00'
Date: February 22, 2017
BERYL A. HOWELL
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?