CHERYLJ ACKSON,

Plaintiff,

v. ASA HOL DI

NGS, L L C et al. , Def endants. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 10-1501 ( CKK)

MEMORAN DUM OP INION (Nove mber 8, 2010) This diversity

action wa s filed by

Plaintiff Cheryl J ackson ( “Jackson”) a g ainst Defe ndants ASA Holdings, L L C (“ASA Holding s”) a nd Capital One, L L C. Capital One, N.A. ( “Capital One” ) has e ntere d an appe ara nce indicating that it was imprope rly named in the Complaint as Capital One, L L C. Presently pendingbefor e the Court ar e ASA Holding s’ [2] Motion to 1 Dismiss t he Complaint for lac k of subject matter jurisdiction and failure to state a c laim upon which re lief ca

n be grante d and Capital One ’s [4] Motion to Dism iss Pl aintiff’s Complaint for failure to state a c laim. As expl ained be low, J ackson ha s failed to file a timely opposition t o these motions, and there fore the Court may treat the motions as concede d. Alternatively , the Court finds that Defe ndants’ motions to dism iss are me ritorious, and there fore the Court shall dismiss J ackson’ s Complaint. I. BACKG ROUND Plaintiff Cheryl J ackson is a r esident of the D istrict of Columbia who owns rea l property located at 831 Dec atur Stree t, N.W. and 906 12th St ree t, N.E. Compl. ¶¶ 1, 4. These pr operties

The Court shall there fore treat Capital One, N.A. a s the proper defe ndant in this action. 1wer e for eclose d on in Febr uary 2010, threateningthe eviction of Jackson. Id. ¶ 4. Jackson alleg es that she pa id her mortg ag e eve ry month until she wa s terminated by the District of Columbi a Public Schools. Id. ¶ 5. Around the same time as he r termination, Jackson was defr auded by

a contr actor

hired to re pair the pr operty at 906 12th Street, NE, r esulting in a loss of $80,000. Id. ¶ 6. J ackson a vers in her

Complaint that Def

endant ASA Holding s is a Geor g ia company that transac ts business in the District of Columbi a. Compl. ¶ 2. J ackson a vers that De fenda

nt Capital One is a Virg inia company doing busine ss in the District of Columbia. Id. J ackson c laims that on or about Septembe r 2009, she r ece ived notification of a fore closure sa le on her

home and renta l property from De fenda nts. Id. ¶ 7. Jackson further claims that she “w as off

ere d to 2 participate in a modification plan by the Def endants, the se rvice r, the a g ent of the holde r of the note, to pay

a re duced a

mount which would allow [her] to keep her home and the home that has been in he r fa

mily for se vera l ge nerations.” Id. ¶ 8. Jackson claims that Def endants notified her

3 that she mig ht be elig ible to avoid fore closure by participating in the loan modific ation prog ram. Id. ¶ 9. Jackson claims that she complete d the loan modifica tion application but was neve r told whether she wa s determined to be elig ible. Id. ¶¶ 10- 11. After attempting to c ontact De fenda nts to ask for infor

mation and help, she c ontacted a Mr. Cory Hanke rson about filingfor ba nkruptcy

. Id. ¶ 11. Mr. Ha

nkerson infor

med J ackson that he filed ba nkruptcy on the day

befor e the

J ackson doe s not specify which of the proper

ties is her home a

nd which is her r ental 2 proper ty

. J ackson oc casiona lly

ref ers to “D efe ndant” in the singular without identifying to whic h 3 defe ndant she is re fer

ring . Construing the Complaint in the light most favor able to Jackson, the Court shall assume that J ackson intends to re fer to either de fenda

nt or both defe ndants. 2schedule d fore closure da te, but J ackson c laims that he ac tually filed bankr

uptcy afte r the fore closure da

te, re sulting in the loss of the prope rties. Id. ¶ 12. The Court take s judicial notice that a pro se Chapter 13 ba nkruptcy petition was filed in the United States B ankruptc y Court for the District of Columbia by Cheryl Yvonne Jackson of 831 De catur Street, NW, on April 2, 2010, signe d by

a Corey W. Hankerson a s prepa

rer . See I n re Jac kson , Ba

nkr. Pet. No. 10-00328 (B ankr. D .C. filed April 2, 2010). J ackson c laims that “the dec eptive and mislea ding a ctions of the De fenda nt led [her] t o Mr. Hanke rson and the D efe ndants are now attemptingto evict [her] from her f amily home.” Compl. ¶ 13. J ackson a lleg es that De fenda nts “neve r af

forde d [her] t he opportunity to participate in the President’s Home Save Program a s they claimed or

any other opportunity

for r elief.” Id. ¶ 14. Jackson alleg es that De fenda nts acted ma liciously

toward he r, knowingshe would lose her home without assistance. Id. J ackson f iled the Complaint in t his action on September 7, 2010, a ssertingviolations of the District of Columbia Consumer Protection Proce dures Ac t (“DCCPPA”), D.C. Code § 28- 3904, the Fa ir Debt Collection Prac tice Ac t (“F DCPA”), 15 U.S.C. § 1692d, and common law claims of fr aud and wrong ful fore closure. I n Count Iof the Complaint, J ackson c laims that Def endants violated the DCCPP A by makingmisrepre sentations of mater ial fac t that had a tendenc y to misl ead, spe cifica lly : (a) that they would proce ss J ackson’ s application for a modification; (b) that they would provide Jackson with assistance to de termine if she was e ligible to stay in her home; a

nd (c) that they

would respond to Jackson’s re quest about whe ther she w as elig ible for the “ Home Save Program.” See Compl. ¶¶ 16-22. In Count I I , J ackson c laims that Def endants violated the DCCPP A by failingto state materia l fac ts in a misleading w ay ,

3specific ally by failingto tell J ackson that no one would assist her or discuss available options with her if she called f

or help. See id. ¶¶ 31- 35. In Count I I I , J ackson c laims that Defe ndants violated the F DCPA by

fore closingon her pr operties in an oppr essive or a busive manner

. See id. ¶¶ 36- 38. In Counts I V and V, Jackson cla ims that Defenda nts’ actions constitute fra ud and wrong ful fore closure, r espec tively

. See id. ¶¶ 39- 42. On September

21, 2010, ASA Holdings f iled its [ 2] Mot ion to Dismi ss the Complaint. On September

27, 2010, Capital One filed a Consent Motion t o Set a Dea dline to Respond to Plaintiff’s Complaint, which the Court gr anted. See Min. Order (Sept. 29, 2010). The Court order ed Capital One to file its response to the Complaint by no later tha

n October 15, 2010. On October 15, 2010, Capital One filed its [4] Motion to Dism iss Pl aintiff’s Complaint. J ackson ha s not filed any

response to either of D efe ndants’ motions.

II. LEGAL STANDARD A. Motion to Dismiss for Lack of Subject M

atter Jurisdiction Under Rule 12( b) ( 1) A cour t must di smiss a case pur suant to Rule 12(b)(1) when it lacks subjec t matter jurisdiction. In deter

mining whe ther ther e is jurisdiction, the Court may “conside r the c omplaint supplemented by

undisputed fac ts evidence d in the rec ord, or the c omplaint supplemented by undisputed fac ts plus the court’s re solution of disput ed fa cts.” Coalit ion for Underground Expansion v. M

ineta , 333 F.3d 193, 198 ( D.C. Cir. 2003) (citations omitted); see also Jerom e Steve ns Pharm., Inc. v . Food &Drug Admin. , 402 F.3d 1249, 1253 ( D.C. Cir. 2005) (“[T]he district court may

consider materials outside the plea dings in de cidingwhether to gr ant a motion to dismi ss for lac k of jurisdiction.”). “ At the motion to dis miss st ag e, counse led complaints, as well as pro se complaints, are to be construe d with sufficient libera lity to affor d all possible

4infere nces f avora ble to the pleade r on alleg ations of fa ct.” Settles v. U.S. ParoleComm’n , 429 F.3d 1098, 1106 ( D.C. Cir. 2005). In spite of the fa vorable infere nces that a plaintiff re ceive s on a motion to dism iss, it remains the plaintiff’s burde n to prove subjec t matter jurisdiction by a preponde ranc e of the evidenc e. Am. Farm Bure au v. Env tl. Prot. Agency , 121 F. Supp. 2d 84, 90 (D.D.C. 2000). “ Although a court must acc ept as true all fac tual alleg ations contained in the complaint when r eviewinga motion to dism iss pursuant to Rule 12(b)(1) , [a] plaintiff[’s] fac tual alleg ations in the complaint . . . will bear c loser scr utiny in resolvinga 12(b) (1) motion than in resolvinga 12(b) (6) motion for f ailure to state a

claim.” W

right v. Foreign Serv. Grievanc e Bd. , 503 F. Supp. 2d 163, 170 (D.D .C. 2007) (interna l citations and quotation marks omitted). B. Motion to Dismiss Under Rule 12( b) ( 6) The F eder al Rules of Civil P roce dure r equire that a complaint conta in “‘a short and plain statement of the c laim showing that the pleade r is entitled to relief,’ in order to ‘ g ive the defe ndant fa ir notice of what the . . . cla im is and the g rounds upon which it re sts.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. G ibson , 355 U.S. 41, 47 (1957)); accord Eric kson v. Pardus , 551 U.S. 89, 93 (2007) (pe r cur iam). Althoug h “deta iled fac tual alleg ations” ar e not nec essar y to withstand a Rule 12(b)( 6) motion to dism iss, to provide the “grounds” of

“entitle[ment] to relief,” a plaintiff must furnish “mor e than labe ls and conc lusions” or “a formulaic r ecitation of the elements of a cause of ac tion.” Twombly , 550 U.S. at 555; see also Papasan v. Allain , 478 U.S. 265, 286 (1986). Instead, a complaint must contain sufficient fac tual matter, a cce pted as true , to “state a claim to relief

that is plausible on its face.” Twombly , 550 U.S. at 570. “A c laim has fac ial plausibilit y when the pla intiff pleads fa ctual conte nt that allows the cour

t to draw the r easona

ble infer ence that the def

endant is liable for

the misconduct

5alleg ed.” Ashcroft v. Iqbal , __ U.S. __, 129 S. C t. 1937, 1949 (2009) (c iting Twombly , 550 U.S.

at 556). In evaluating a

Rule 12(b)(6) motion to di smiss for failure to state a c laim, the court must construe the complaint in a light most favor able to the plaintiff a nd must acce pt as true a ll

rea sonable fa ctual infe renc es dra wn from we ll-pleade d fac tual alleg ations. In re United M ine W orkers of Am. Em

ployeeBene

fit Plans L itig. , 854 F. Supp. 914, 915 (D.D .C. 1994); see also Schuler v . United States , 617 F.2d 605, 608 ( D.C. Cir. 1979) (“The complaint must be ‘libera lly construed in f

avor of the plaintiff,’ who must be g rante d the bene fit of all infer ence s that can be derive d from the f

acts a lleg ed.”) . Howeve r, as the Supre me Court rec ently made c lear , a plaintiff must provide more than just “a sheer possibili ty

that a def endant ha s acte d unlawfully .” Iqbal , 129 S. Ct . at 1950. Where the well-plea ded fa cts set forth in the c omplaint do not permit a court, draw ing on its judicial experienc e and c ommon sense, to infer mor e than the “ mere possibili ty of misconduct,” the c omplaint has not shown that the pleade r is entitled to relief. Id. at 1950. In evaluating a

motion to di smiss under Rule 12(b)(6) , the Court is lim ited to consideringthe fac ts alleg ed in the complaint, any documents attac hed to or incor porate d in the complaint, matters of which the cour t may take judicial notice , and matter s of public re cord. See E EOC v. St. Francis Xavier Paroc hial Sch. , 117 F.3d 621, 624 ( D.C. Cir. 1997); see also Vanov er v. Hantman , 77 F. Supp. 2d 91, 98 (D.D .C. 1999), aff’d , 38 F. App’ x 4 (D.C. Cir. 2002) (“ [W ]here a docume nt is refe rre d to in the complaint and is centra l to plaintiff’s claim, such a document attache d to the motion papers may be conside red w ithout convertingthe motion to one for summary judgme nt.”) (c iting Gree nberg v. The Life Ins. Co. of Va. , 177 F.3d 507, 514 ( 6th Cir. 1999)).

6III. DISCUSS ION

Def endant ASA Holding s has filed a motion to di smiss pursuant to Fede ral Rules of Civil Procedur e 12(b) (1) a

nd 12(b)( 6), and D efe ndant Capital One ha s filed a motion to dismi ss under Rule 12(b)(6) . As explained below, the Court may g rant these motions as concede d beca use J ackson ha s failed to file a timely opposition. However, the Court shall also addre ss the merits of these motions as an a lternative ba sis for dismissal. A. The Court May Grant Defendants’ M otions As Conceded As of the date of this opinion, J ackson ha s not filed an opposition to Defenda nts’ motions to dismi ss. L ocal Civil Rule 7(b) g overns the f iling of oppositions to moti ons filed in this Court: Wit hin 14 day s of the date of ser vice or at such other

time as t he C ourt may direc t, an opposing party shall serve and file a memorandum of points and authorities in opposition t o the motion. I f such a memorandum is not filed within the presc ribed time, the Court may

treat the motion as conce ded. L CvR 7(b). The D.C. Circuit has e x plained that this rule “is a docket- manag ement tool that fac ilitates effic ient and ef fec tive resolution of motions by requiringthe prompt joining of issues.” Fox v . Am. Airlines , 389 F.3d 1291, 1294 ( D.C. Cir. 2004). A district court’s de cision to apply the rule is re viewed only

for a buse of discr etion, and the D.C. Circuit has ne ver c onsidered straig htforwa

rd application of Rule 7(b) to be a n abuse of

discretion. Id. ; FDIC v. Be nder , 127 F.3d 58, 67 ( D.C. Cir. 1997). The Court nee d not provide notice be fore enfor cingthe rule or offe r a pa rty an opportunity

to expl ain its failure to c omply

. Fox , 389 F.3d a t 1295. “Where the

4 district court re lies on the absenc e of a response as a ba sis for treating the motion as c oncede d, An exception to this rule is for dispositi ve motions filed ag ainst parties who a re 4 repr esentingthemselves, pro se . See F ox v. Strick

land, 837 F.2d 507, 509 ( D.C. Cir. 1988) (holdingthat district courts must advise pro se plaintiffs of the c onsequenc es of f ailing to respond to a dispositive motion). Here , howeve r, Jackson is repre sented by counsel. 7we honor

its enforc ement of the rule.” Twelve John D oes v. D istrict of Columbia , 117 F.3d 571, 577 (D.C. Cir. 1997). The Court shall exercise its discre tion to apply L ocal Rule 7(b) and tre at Def endants’ motions t o dismiss as conc eded. Jackson is repr esente d by counsel, a

nd she is expected to be

awa re of her r esponsibility

to meet dea dlines in acc ordanc e with the Court’s rule s, y et she ha s not done so in this case. A ccor dingly , the Court finds that J ackson ha s failed to prose cute he r cla ims by failingto oppose Def

endants’ motions to dismis s, and there fore this action shall be dismissed. B. The Merits of Defendants’ M otions to Dismis s As an a lternative ba sis for dismissal, the Court shall consider the mer its of Defe ndants’ motions. AS A Holding s moves to dismi ss the Complaint aga inst itfor both lac k of subject matter jurisdiction and fa ilure to state a c laim. Be cause jurisdiction is a threshold issue, the Court shall address it first. Capital One a lso moves to dism iss for fa ilure to state a c laim upon which re lief ca

n be grante d. The Court shall addr ess these c laims below. 1. ASA Holdings’ Motion to Dism iss for L ack of Subject Matter Jurisdiction ASA Holdings c ontends that this Court lacks jurisdiction over J ackson’ s claims ag ainst it beca use contra

ry to the alleg ations in the Complaint, AS A Holding s is actually a District of Columbi a compa

ny , and ther efor e ther e is not a complete diversity of par ties as re quired for

this Court’s exercise of

diversity jurisdiction under 28 U.S.C. § 1332. J ackson’ s Complaint onl y

asser ts jurisdiction under § 1332. Howeve r, it is clear that Count I I Iof the Complaint asserts a fede ral c ause of

action for

violation of the FD CPA, 15 U.S.C . § 1692d. There fore , this Court has jurisdiction over the fe dera l claim pursuant to 28 U.S.C. § 1331, and it may exercise supplemental jurisdiction over the state-lawclaims pursuant to 28 U.S.C. § 1367. Be cause 8defe ctive alleg ations of jurisdiction may be fr eely amende d, see 28 U.S.C. § 1653, courts g ener ally do not dismi ss actions wher e an a lternative ba sis for jurisdiction is appare nt from the fac e of the complaint. See H oefferle Truck Sale

s, Inc. v . Divco- W

ayne Corp. , 523 F.2d 543, 549 (7th Cir. 1975) (“ A cour

t’s discretion to dismiss for lack of subje ct matter jurisdiction whe n the plaintiff could have pleade d the exist ence of jurisdiction and whe n in fac t such jurisdiction exis ts, should be exercised spar ingly .”). The ref ore, a ssuming arguendo that § 1332 is not a proper basis for jurisdiction, the Court dec lines to dismi ss J ackson’ s complaint on that basis. 2. Def

endants’ Motions to Dismiss for Fa ilure to State a Claim ASA Holdings move s to dismi ss J ackson’ s Complaint on t he ground that it fails to alleg e any wrong doing by

ASA Holdings. Similarly , Capital One moves to dismiss the Compl aint on the g round that the a lleg ations are insufficient to state a claim for a

violation of the DCCPP A or the FD CPA or for fr aud or wrong ful fore closure. A lthough e ach de fenda nt raises slig htly differ ent ar guments in their motions, t he Court shall ana ly ze them toge ther be cause J ackson doe s not disti nguish betwee n ASA Holdings a nd Capital One in makingher a lleg ations. The Court beg ins its analy sis by noting that Jackson’s Complaint is devoid of any specific alleg ations pertainingto the role that e ither ASA Holding s or Capital One pla y ed in the fore closure of

her pr operties. The re a

re no a lleg ations that expl ain whethe r ASA Holding s or Capital One (or

some other unnamed entity ) is the mortg ag ee, the holder of the note, the loan service r, etc

. Instead, Jackson makes a ll of her a lleg ations ag ainst “De fenda nts,” and sometimes 5 ASA Holdings ha s attache d documents to its moti on to dismi ss indicating that it 5 purcha sed the prope rty

at 831 Dec atur Stree t, NW at a fore closure a uction and is seeking

to evict J ackson a s the owner

of that prope rty . The Court, howe ver, c annot re ly on this evidence without conver ting ASA Holding s’ motion to one for summary judgme nt, which it declines to do. See Fe d. R. Civ. P . 12(d). 9ag ainst “De fenda nt,” without specifica lly

identifying to whic h entity she is ref err ing. T his is problematic be cause it requires D efe ndants to guess as to the pre cise nature of Jackson’s alleg ations. The Court shall eva luate the a lleg ations pertainingto eac h of Jackson’s asser ted claims.

a. Counts Iand I I : Violations of the DCCPP A. Counts Iand I I

of the Complaint assert violations of the DCCPPA, D.C. C ode §§ 28- 3904(e) & ( f). The se statutory provisions make it an unlawf ul trade pr actice for a

ny person to “misrepr esent a s to a materia l fac t which has a tendenc y to misl ead” and “f

ail to state a mate rial fac t if such fa ilure tends to mislead.” D .C. Code §§ 28-3904(e) & ( f). At lea st one court in this District has held that such c laims must be pled with particularity beca use they are akin to claims of fr aud. See W

itherspoon v. Philip Morris Inc. , 964 F. Supp. 455, 463-64 (D .D.C. 1997); Fe d. R. Civ. P . 9(b) ( “In alleg ing f raud or mistake, a pa

rty must state with particularity the circ umstances c onstitut ing f raud or mistake.”). Whether

or not J ackson’ s DCCP PA claims must be pled with par

ticularity , the Court finds her a lleg ations insufficient to state a plausible claim for relief ag ainst Defe ndants. J ackson a lleg es that De fenda nts misreprese nted the followingfac ts: (a) that they would proce ss her a

pplication for a

modification; (b) that they would provide he r with assistance to deter mine if she wa s elig ible to stay in her home; a

nd (c) that they

would respond to her

reque st about whethe r she wa s elig ible for the “ Home Save Program.” Compl. ¶ 20. W ith respec t to subsection (f) , J ackson a lleg es that De fenda nts (a) se nt her c ommunications indicating “ she should call for a ssistance with the Home Modification Prog ram a nd someone would a ssist her,” when no one in fac t assisted her; and (b) that De fenda nts would discuss available options with

10her to avoid losing her home. Compl. ¶ 33. These latter alleg ations are more prope rly char acte rized as misrepre sentations than omissions, because the crux of the alleg ations is that Def endants misrepr esente d the fa ct that they would help her . Howeve r, Jackson fails to alleg e fac ts demonstratingthat these “ misrepre sentations” or “ omissions ” we re ma terial or ha d a tendenc y to misl ead. “ [A] repr esenta tion is m ater ial if it reasona bly influence s a plaintiff to take

an ac tion he or she may

have r efr ained f

rom takingif awa

re of the ac tual fac ts.” C &E Servs., Inc. v . Ashland, Inc. , 498 F. Supp. 2d 242, 258 (D.D .C. 2007). J ackson doe s not ex plain in her Complaint what acts, if any , she would or would not have taken if she had bee n awa re that Def endants would not help he r with the loan modification. J ackson a rguably would not have filled out an application or asked De fenda nts for help if she thought doingso would be fr uitless, but J ackson doe s not identify this as a source of dama g es fr om the violation. In fac t, J ackson ha s failed to alleg e any fac ts that plausibly

show she has be en dama g ed by Def endants’ pur

ported DCCPPA viol ations. J ackson c laims that as a re sult of Defe ndants’ misrepre sentations, she “suf fer ed dama g es, including , but not lim ited to the loss of her pr operty , late fe es, collec tion costs, [ and] interest.” Compl. ¶ 22. Howe ver, Jackson does not alleg e that she would have been e ligible f or loan modification and there fore that Def endants’ a lleg ed fa ilure to consider he r application might have sa ved her home from f

orec losure. Nor

does she a lleg e that Def endants’ pur

ported fa ilure to assist her c aused he r to submit late pay ments or incur a

ny additional costs associate d with her loans. This fa ilure to alleg e any fac ts supporting da

mag es (or any injury ) is fata l to J ackson’ s DCCP PA claim. Although the DCCPP A provides that misrepre sentation is an unlawf ul trade pr actice “whe ther or not a ny consumer is in fa ct misled, dece ived or da

mag ed ther eby ,” D.C. Code § 28-3904, D istrict of Columbia courts have e x plained

11that in order to have standingto sue in court for a violation of the DCCPPA (as opposed to seekingadministrative re medies), a plaintiff must establish that she has suffe red da mag e as a result of the unla

wful trade prac tice. See O sbourne v. Capital Cit

y Mortg. Corp. , 667 A.2d 1321, 1329-30 (D.C. 1995); see also W illiams v. Purdue Pharma Co. , 297 F. Supp. 2d 171, 178 (D.D.C. 2003) ( holding that “ [t ]he invasion of a pure ly leg al right without harm to the consumer” is not redre ssable by

a cour t). J ackson’ s conclusory

asser tions of injury

are not sufficient to demonstrate that she was a ctually harme d by

the alleg ed misrepr esentations or omissi ons, and there fore her D CCP PA claims must be dismi ssed.

b. Count I I I : Violation of the FD CPA. Count I I Iof the Complaint asserts a violation of the FDCPA, which pr ovides in pertinent part that “ [a] debt collec tor may not eng ag e in any

conduct the na

tural conse quence of which is to hara ss, oppress, or a

buse any person in conne ction with the collection of a debt.” 15 U.S.C. § 1692d. J ackson c laims that Defe ndants violated this provision by “continuingto forec lose on the prope rty

with notice and knowle dg e of the fra ud.” Compl. ¶ 38. Howeve r, Jackson’s alleg ations do not plausibly state a c laim for a violation of the FDCPA. The Complaint does littl e more than par

rot the languag e of the statute in conclusory fashion, and it conta ins absolutely no alleg ations relatingto hara ssment, oppression, or abuse . In fac t, the only alleg ations pertinent to this claim are that De fenda nts forec losed on J ackson’ s proper ties and that De fenda

nts alleg edly knew they

had lied to her

about g iving he r assistancewith loan modification. Simpl y put, that does not state a c laim under 15 U.S.C. § 1692d. That statute lists ex amples of violations such as usingthreat or violence or other c riminal means to har m a per son or their prope rty , using obscene or prof

ane la nguag e, and c ausinga telephone to ringrepe atedly or continuously

. See 15

12U.S.C. § 1692d(1), (2), & (5). More over, Jackson does not alleg e that either ASA Holdings or Capital One is a “ debt collec tor” within the mea ning of the FD CPA. See 15 U.S.C. § 1692a(6) (def ining a “debt c ollector” as a business whose principal purpose is to collect debts). The ref ore, the Court agree s with Defe ndants that J ackson ha s failed to state a claim under

the FD CPA.

c. Count I V: Fr aud. Count I V of the Complaint asser ts a claim for

fra ud. Pursuant to Rule 9(b), cla ims of fra ud must be pled with particular ity

. See Fe d. R. Civ. P . 9(b) ( “I n alleg ing f

raud or mistake, a party must state with particularity the circ umstances c onstitut ing f raud or mistake.”). T o state a claim for f

raud, a plaintiff must alleg e the f ollowing e lements: “(1) a fa lse repr esentation (2) made in re fer ence to a mater ial fac t, (3) with knowledg e of its fa lsity , (4) with the intent to dece ive, and ( 5) an a ction that is taken in relianc e upon the r epre sentation.” In re Estate of McKenne y , 953 A.2d 336, 342 (D.C. 2008) ( quoting Park v. Sandwich Chef , 651 A.2d 798, 801 (D.C. 1994)). Jackson does not spec ifically restate any

alleg ations of fra

ud, alleg ing instea d that “[t] he ac tions of Defe ndants which they perpe trated a g ainst the Plaintiff as set for th here in [ in the Complaint] constitutes fraud.” Compl. ¶ 40. Accor dingly , it appear s that J ackson’ s fra ud claim is based on the same alleg ations as her misrepre sentation claim under the DCCPP A. For

the

same a nd simil ar r easons, howe ver, Jackson fa ils to st ate a claim for f

raud. First, it is clear

that J ackson ha s failed to satisfy her oblig ation to plead with par ticularity the alleg ed misrepr esentations. “The cla imant must pl ead w ith particularity matters such a s the time, place, a

nd content of the false misre prese ntations, the misreprese nted fa ct and what the opponent re tained or the claimant lost as a c onsequenc e of the alleg ed fr aud.” Phrasavang v. DeutscheBank, 656 F. Supp. 2d 196, 205 (D.D .C. 2009). In addition, the plaintiff must “specif y 13which def

endant or defe ndants committed eac h alleg edly fra udulent act, instea d [of] pleading fra ud g ener ally

as to all of the de fenda

nts.” Id. at 206. J ackson’ s Complaint clearly fails to meet these standa

rds, as she doe s not describe specific ally the place , time, or content of the alleg ed misrepre sentations, and she doe s not specifica lly identify which def

endant a cted in what time period. The ref

ore, Jackson has f

ailed to satisfy

the heightened plea ding r equire ments of Rule 9(b). Second, Jackson fails to alleg e that she took a ny action in re liance upon D efe ndants’ alleg ed misrepr esentation. Although Jackson complains that she lost her house , that is not an “ac tion that is t aken”by

J ackson in re liance, a

nd in any event she has alleg ed no fa cts to causa lly

connec t Defe ndants’ alleg ed misrepr esentations to t hat injury . There fore , J ackson ha s not plausibly stated a c laim of fra

ud by Def endants, a nd that claim must be dismissed. d. Count V: W rong ful fore closure. Finally , in Count V of the Complaint, J ackson a sserts a c laim for “wrong ful fore closure,” claimingthat “[t] he ac tions of Defe ndants which they perpe trated a g ainst the Plaintiff as set for th here in [ in the Complaint] constitutes Wrongful F orec losure.” Compl. ¶ 42. The District of Columbi a cour

ts have he ld that “an a ction for wr ong ful or improper fore closure ma

y lie wher e the prope rty

owner sustains damag es by

rea son of a f

orec losure executed in a

manner contra ry to law.” Johnson v. Fairfax Village Condominium IV U nit Owners Ass’n , 641 A.2d 495, 505 (D.C. 1994). Ac cording ly , an esse ntial element of a wrong ful fore closure c laim is establishing that the fore closure w as contra

ry to law. See Young v. 1st Am. Fin. Servs. , 992 F. Supp. 440, 445 (D.D.C. 1998) ( g rantingsummary judgme nt on wrong ful fore closure c laim beca use def endants did not violate the fore closure statute). He re, how ever , J ackson ha s failed to eve n alleg e that

14Def

endants violated a

ny provision of D.C. law re lating to the f orec losure on Jackson’s proper ties. A conc lusory

alleg ation that Def

endants wr ong fully

fore closed is totally

inadequa te to state a c laim for wr ong ful fore closure. T here fore , this claim must be dism issed. * * * Although ma

ny of the de fec ts in the Compl aint could be c ured through amendment, the Court finds that J ackson should not be g iven leave to amend her Complaint because she has failed to file a

n opposition t o Def

endants’ motions to dismis s. Acc ording ly , the Court shall dismiss this action in its entirety

. IV. CONCLUSION The Court finds that Jackson has fa iled to file a timely opposition t o Def

endants’ motions to dismi ss her Complaint, and there fore the Court may g rant the motions to dismi ss as conc eded. Alternatively , the Court has re viewed the merits of De fenda nts’ motions and found that J ackson has fa iled to state a c laim upon which re lief ca n be grante d. There fore , the Court shall GRANT Def endant ASA Holding s’ [2] Motion to Dism iss the Compl aint and De fenda nt Capital One’s [4] Motion to Dism iss Pl aintiff’s Complaint as conc eded a nd, alternatively , for f

ailure to state a claim upon which r elief c an be grante d. Acc ording ly , this action shall be dismissed. An appropr iate Or der a ccompa nies this Memorandum Opinion.

/s/ COL L EEN KOL LAR-KOTELLY United States District J udg e

15