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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WHEELER R. WINSTEAD, :

:

Plaintiff, : Civil Action No.: 09-0997 (RMU)

:

v. : Re Document Nos.: 19, 20, 21, 22, 24

:

EMC MORTGAGE CORPORATION et al.,:

:

Defendants. :

MEMORANDUM OPINION

GRANTING THE DEFENDANTS’ MOTIONS TO DISMISS

I. INTRODUCTION

This matter is before the court on the defendants’ motions to dismiss. The plaintiff, the 

owner of property subject to foreclosure proceedings, asserts that the defendants violated the 

Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601 et seq., the Real Estate Settlement 

Procedures Act (“RESPA”), 12 U.S.C. §§ 2601 et seq., the Fair Debt Collection Practices Act 

(“FDCPA”), 15 U.S.C. § 1692, and the National Housing Act (“NHA”), 12 U.S.C. §§ 1701 et 

seq. Because the plaintiff’s TILA and RESPA claims are time-barred and because the plaintiff 

has failed to state cognizable claims under the FDCPA or the NHA, the court grants the 

defendants’ motions to dismiss.

II. FACTUAL1

The plaintiff filed suit on May 28, 2009, and simultaneously sought a preliminary 

injunction to stop foreclosure proceedings on his property. See generally Compl.; Pl.’s Mot. for 

& PROCEDURAL BACKGROUND

 1 The court incorporates by reference the factual summary contained in the court’s memorandum 

opinion dated June 5, 2009, denying the plaintiff’s motion for a preliminary injunction. See

Mem. Op. (June 5, 2009) at 2.
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Prelim. Inj. On June 5, 2009, the court denied the plaintiff’s motion for a preliminary injunction. 

See generally Mem. Op. (June 5, 2009). Defendants Rosenberg & Associates, LLC 

(“Rosenberg”) and NRT Mid-Atlantic, LLC d/b/a Coldwell Banker Residential Brokerage 

(“Coldwell”) filed motions to dismiss on June 22, 2009. See generally Rosenberg Mot.; 

Coldwell Mot. The following day defendants EMC Mortgage Corporation (“EMC”) and 

Fremont Reorganizing Corporation f/k/a Fremont Investment & Loan (“Fremont”) filed motions 

to dismiss, see generally EMC Mot.; Fremont Mot., and defendant Saxon Mortgage Services, 

Inc. (“Saxon”) filed its motion to dismiss on June 24, 2009, see generally Saxon Mot. The 

plaintiff filed a consolidated opposition to the defendants’ motions on June 30, 2009. See 

generally Pl.’s Opp’n. Coldwell filed a reply in support of its motion on July 13, 2009. See 

generally Coldwell Reply. As all motions are now fully briefed, the court turns to the applicable 

legal standard and the parties’ arguments.

III. ANALYSIS

A. Legal Standard for a Rule 12(b)(6) Motion to Dismiss

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning 

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and 

plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon 

which it rests. Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) 

(citing FED. R. CIV. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Such simplified 

notice pleading is made possible by the liberal opportunity for discovery and the other pre-trial 

procedures established by the Rules to disclose more precisely the basis of both claim and 

defense to define more narrowly the disputed facts and issues.” Conley, 355 U.S. at 47-48 
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(internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of 

his prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002), 

or “plead law or match facts to every element of a legal theory,” Krieger v. Fadely, 211 F.3d 

134, 136 (D.C. Cir. 2000) (internal quotation marks and citation omitted). 

Yet, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. 

Ct. 1937, 1949 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 570 (2007) (abrogating the oft-quoted language from Conley, 355 U.S. at 45-56, instructing 

courts not to dismiss for failure to state a claim unless it appears beyond doubt that “no set of 

facts in support of his claim [] would entitle him to relief”). A claim is facially plausible when 

the pleaded factual content “allows the court to draw the reasonable inference that the defendant 

is liable for the misconduct.” Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to 

a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has 

acted unlawfully.” Id. 

In resolving a Rule 12(b)(6) motion, the court must treat the complaint’s factual 

allegations – including mixed questions of law and fact – as true and draw all reasonable 

inferences therefrom in the plaintiff’s favor. Macharia v. United States, 334 F.3d 61, 64, 67 

(D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 

2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the 

court need not accept as true inferences unsupported by facts set out in the complaint or legal 

conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C. 

Cir. 2004); Browning, 292 F.3d at 242. “Threadbare recitals of the elements of a cause of action, 

supported by mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. 
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B. The Court Grants the Defendants’ Motions to Dismiss

1. The Plaintiff’s TILA and RESPA Claims are Time-Barred 

Each defendant argues that the plaintiff’s TILA and RESPA claims are barred by the 

applicable statutes of limitations. See Rosenberg Mot. at 4-5; Coldwell Mot. at 4, 6; Fremont 

Mot. at 3-4; EMC Mot. at 9; Saxon Mot. at 3. The plaintiff appears to concede that these claims 

are time-barred when he states that “[p]laintiff conceded in previous motions that both his TILA 

[c]laims and [s]ome RESPA claims are time barred; case closed.” Pl.’s Opp’n at 8. “But,” the 

plaintiff continues, the defendants “are legally bound” to respond to his request for a copy of the 

original note. Id. (emphasis added). The plaintiff also continues to discuss the alleged “fraud” in 

the settlement process. See generally id. Because the plaintiff makes substantive arguments 

despite “conceding” that his claims are time-barred, the court construes his comments as an 

argument for equitable tolling of the applicable statutes of limitations. See Haines v. Kerner, 404 

U.S. 519, 520-21 (1972) (holding that pro se pleadings should be held to a “less stringent 

standard[] than formal pleadings drafted by lawyers”). Neither the TILA nor RESPA statutes of 

limitations are, however, subject to equitable tolling. See Hardin v. City Title & Escrow, 737 

F.2d 1037, 1039-41 (D.C. Cir. 1986) (holding that the statutes of limitations contained in both 

TILA and RESPA are jurisdictional and, therefore, not subject to equitable tolling). The court, 

accordingly, dismisses the plaintiff’s TILA and RESPA claims.

2. The Plaintiff Failed to State Claims Under the FDCPA and the NHA

 Coldwell and EMC maintain that they are not “debt collectors” for the purposes of the 

FDCPA.2

 2 The FDCPA protects (1) consumers (2) who have been subjected to abusive, deceptive or unfair 

 Coldwell Mot. at 7; EMC Mot. at 5-6. Similarly, Fremont, Rosenberg and Saxon 

debt collection practices (3) by a debt collector (4) in an attempt to collect a debt. See 15 U.S.C. 

§ 1692e-f.
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argue that the plaintiff has not alleged that they were subject to the FDCPA and has failed to 

offer facts explaining how they violated it. Fremont Mot. at 4-5; Rosenberg Mot. at 5; Saxon 

Mot. at 3. All defendants likewise assert that the plaintiff has not stated sufficient facts to 

maintain his NHA claim. See Rosenberg Mot. at 5; Fremont Mot. at 4-5; EMC Mot. at 6-7; 

Saxon Mot. at 3.3

In response, the plaintiff fails to address any of the defendants’ attacks on the sufficiency 

of his complaint, see generally Pl.’s Opp’n, instead repeatedly demands that the defendants 

produce the original note or deed of trust, see id. at 5 (challenging the defendants to “[s]how the 

original note that [the plaintiff] signed at closing”); id. at 8 (alleging that the “core deficit” of the 

defendants’ motions in their failure to answer the question “[w]here is the Note?”); id. at 9 

(stating that “there are legal issues that can be resolved by the production of the original note”).

What the plaintiff fails to understand is that the burden rests on him, at this stage, to 

allege facts sufficient to support his claim. See Iqbal, 129 S. Ct. at 1949 (explaining that “labels 

and conclusions” are not sufficient and that “the pleading standard . . . does not require ‘detailed 

factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmedme accusation”) (quoting Twombly, 550 U.S. at 555). Because the plaintiff has not articulated 

facts to support his FDCPA and NHA claims, see Mem. Op. (June 5, 2009) at 6; see generally

Pl.’s Opp’n, the court dismisses those claims.

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 3 Coldwell asserts that the NHA claim does not apply to it. Coldwell Mot. at 7. Indeed, the 

plaintiff agrees, stating that “defendant Coldwell [B]anker in this matter is as irrelevant as a 

weeks old paper.” Pl.’s Opp’n at 10. 

4 Furthermore, by failing to address the defendants’ contentions in his opposition, the plaintiff has 

conceded that the defendants’ arguments. See Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 

2003) (specifying that “when a plaintiff files an opposition to a dispositive motion and addresses 

only certain arguments raised by the defendant, a court may treat those arguments that the 

plaintiff failed to address as conceded”).
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IV. CONCLUSION

For the foregoing reasons, the court grants the defendants’ motions to dismiss.

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 An 

Order consistent with this Memorandum Opinion is separately and contemporaneously issued 

this 22nd day of March, 2010.

 RICARDO M. URBINA

United States District Judge

 5 The plaintiff also argues that he has a claim under the theory of “unclean hands.” See Compl. at 

17; Pl.’s Opp’n at 2. The court notes that the theory of unclean hands is an affirmative defense, 

not a cause of action. See CJS EQUITY § 109 (noting that the unclean hands “maxim expresses a 

principle of inaction rather than action, and may be invoked only to prevent affirmative equitable 

relief”). Accordingly, any such “claim” is also dismissed.