Tefera v. Onewest Bank, Fsb

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________

)

KASSAHUN TEFERA, )

)

Plaintiff, )

)

v. ) Civil Action No. 13-CV-1055 (KBJ)

)

ONEWEST BANK, FSB, )

)

Defendant. )

)

_______________________________ )

MEMORANDUM OPINION

Plaintiff Kassahun Tefera (“Tefera”), proceeding pro se, filed the instant

complaint in the Superior Court of the District of Columbia on June 7, 2013. Tefera

alleges that Defendant OneWest Bank, FSB (“Defendant”), illegally foreclosed on his

home. (Compl., Ex. A to Notice of Removal, ECF No. 1-1, at 2.) Defendant removed

the matter to federal court. (Notice of Removal, ECF No. 1.) Presently before the

Court is Defendant’s motion to dismiss. (Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF

No. 4.) Defendant argues that Tefera’s complaint must be dismissed in its entirety for

failure to state a claim upon which relief can be granted because Tefera fails to meet the

pleading requirements of the Federal Rules of Civil Procedure, and in any event, the

relevant statute of limitations bars his claims. (Id.; see also Mem. In Supp. of Def.’s

Mot. (“Def.’s Mem.”), ECF No. 4-1, at 8.) Upon careful consideration of the motion

and associated submissions from the parties, the entire record, the applicable law, and

for the reasons that follow, Defendant’s motion is GRANTED.

1

I. FACTUAL BACKGROUND

This case arises out of Defendant’s involvement in the foreclosure of Tefera’s

house. The following facts are taken from Tefera’s complaint, the documents attached

to the complaint, and public records that the parties submitted along with their briefs

regarding the pending motion.

On September 25, 2006, Tefera refinanced his residential property, located at

629 Newton Place, N.W., Washington, D.C. 20010 (the “property”), with Mason Dixon

Funding, Inc. (“Mason Dixon”). (Deed of Trust, Ex. A to Def.’s Mot., ECF No. 4-2, at

1-2; see also Compl. at 1-2.) In return for a $440,000 loan, Tefera granted Mason

Dixon a deed of trust to the property. (Id.) Tefera alleges that he made a $30,000 down

payment on the property and later made payments totaling $89,000 towards the loan.

(Affidavit of Kassahun Tefera (“Tefera Aff.”), Compl., ECF No. 1-1, at 8 ¶¶ 5-6.)

According to Tefera, he spent an additional $50,000 on improvements to the property

and engaged in maintenance and upkeep worth $100,000. (Id. ¶¶ 8-9; see also Ex. B. to

Compl., ECF No. 1-1 at 11 (itemized list of improvements and maintenance).)

Although the record does not make this clear, a key event must have occurred at some

point: Mason Dixon transferred the deed to IndyMac Federal Bank, which eventually

transferred it to Defendant OneWest. (See Foreclosure Notice, Compl., ECF No. 1-1, at

21. (identifying IndyMac Federal Bank, FSB, as the “holder of the note”).) See also

Rathbun v. IndyMac Mortg. Servs., 916 F. Supp. 2d 1174, 1176-77 (D. Mont. 2013)

(noting that the FDIC closed IndyMac Bank and transferred most of its assets to

OneWest).

2

The complaint does not address when or why Tefera stopped making timely

payments on his mortgage. But on February 13, 2009, a Notice of Foreclosure Sale of

Real Property for Tefera’s property was recorded with the Recorder of Deeds in the

D.C. Office of Tax and Revenue. (Foreclosure Notice, Compl., ECF No. 1-1, at 21.)

According to the Foreclosure Notice, a copy of the notice was sent to Tefera at the

property’s address, and there is no question that Tefera received the notice; he attached

it to his complaint. (See id.)

Three months after the Notice of Foreclosure was filed, HSBC Bank USA

purchased the property at a foreclosure sale and recorded its deed to the property on

May 14, 2009. (HSBC Deed, Ex. B to Def.’s Mot.) Later that month, Tefera filed for

Chapter 7 bankruptcy, and according to the docket sheet, the bankruptcy court

eventually discharged Tefera’s debts—including the unpaid amount that Tefera owed on

his mortgage loan. (See Bankruptcy Case Docket for Bankruptcy Petition 09-00451,

Ex. C to Def.’s Mot., ECF No. 4-4, at 2.)

On June 7, 2013, Tefera filed the instant complaint in the Superior Court for the

District of Columbia, seeking $476,414 in damages. (See Compl. at 1.) In the

complaint, Tefera makes four general claims: (1) that his lender “illegally foreclosed”

his home; (2) that the lender did not show him the “original note”; (3) that the lender

“separate[d the] original note from the mortgage for more than 90 days”; and (4) that

the note “was converted to stock or stock equivalent” and, therefore, “it is no longer a

note.” (Compl. at 2, 4.) Elsewhere in the complaint, Tefera characterizes the bank’s

action as “a crime (Fraud).” (Id. at 5.)

3

Defendant removed the case to federal court on July 10, 2013. (Notice of

Removal at 1.) 1 Defendant then moved to dismiss Tefera’s complaint. (Def.’s Mot. at

1.) In his opposition to Defendant’s motion to dismiss, Tefera adds additional factual

allegations regarding Defendant’s conduct, including that the bank “[f]ail[ed] to follow

appropriate foreclosure [p]rocedure” when it filed “[f]alse and misleading documents”

related to Tefera’s mortgage, failed to have the documents properly notarized, and

“engaged in a pattern of unfair and deceptive practice.” (Opp’n to Mot. to Dismiss

(“Pl.’s Opp’n”), ECF No. 6, ¶¶ I-K.)

II. LEGAL STANDARD FOR A MOTION TO DISMISS

A. Federal Rule of Civil Procedure 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) provides that a party may move to

dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can

be granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint

must comply with Rule 8, which requires “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). This requirement is

meant to “give the defendant fair notice of what the . . . claim is and the grounds upon

which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation

omitted).

“Although ‘detailed factual allegations’ are not necessary to withstand a Rule

12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must furnish ‘more

than labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of

1

In the Notice of Removal, Defendant argued that this Court’s jurisdiction was proper on several

grounds, including diversity of citizenship. (Notice of Removal, ECF No. 1.) Tefera did not seek

remand or in any other way oppose removal.

4

action.’” Busby v. Capital One, N.A., 932 F. Supp. 2d 114, 133 (D.D.C. 2013) (quoting

Twombly, 550 U.S. at 555). In other words, the plaintiff must provide “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). “Mere conclusory statements” of misconduct are not enough to

make out a cause of action against a defendant. See id. Rather, a complaint must

contain sufficient factual allegations that, if true, “state a claim to relief that is

plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

678. “The court must view the complaint in a light most favorable to the plaintiff and

must accept as true all reasonable factual inferences drawn from well-pleaded factual

allegations.” Busby, 932 F. Supp. 2d at 134 (citation omitted). Although the court must

accept as true the facts in the complaint, it “need not accept inferences drawn by

plaintiffs if such inferences are unsupported by the facts set out in the complaint,”

Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994), nor is the court

“bound to accept as true a legal conclusion couched as a factual allegation.” Twombly,

550 U.S. at 555 (citation omitted).

Significantly, the pleadings of pro se parties are to be “liberally construed, and a

pro se complaint, however inartfully pleaded, must be held to less stringent standards

than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(per curiam) (internal quotation marks and citations omitted). “This benefit is not,

however, a license to ignore the Federal Rules of Civil Procedure.” Sturdza v. United

Arab Emirates, 658 F. Supp. 2d 135, 137 (D.D.C. 2009) (citation omitted). Rather,

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“even though a pro se complaint must be construed liberally, the complaint must still

‘present a claim on which the Court can grant relief.’” Budik v. Dartmouth-Hitchcock

Med. Ctr., 937 F. Supp. 2d 5, 11 (D.D.C. 2013) (quoting Chandler v. Roche, 215 F.

Supp. 2d 166, 168 (D.D.C. 2002)); see Moore v. Motz, 437 F. Supp. 2d 88, 90 (D.D.C.

2006) (noting that “[e]ven a pro se plaintiff’s inferences” need not be accepted if they

“are unsupported by the facts set out in the complaint” (citation omitted)); see also

Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981) (same).

B. Possible Conversion to a Motion for Summary Judgment

“In evaluating a 12(b)(6) motion to dismiss, a court may consider ‘the facts

alleged in the complaint, documents attached as exhibits or incorporated by reference in

the complaint,’ or ‘documents upon which the plaintiff’s complaint necessarily relies

even if the [parties do not produce the] document[.]’” Busby, 932 F. Supp. 2d at 133-34

(D.D.C. 2013) (quoting Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d

117, 119 (D.D.C. 2011)). The court may also consider documents in the public record

of which the court may take judicial notice, Abhe & Svoboda, Inc. v. Chao, 508 F.3d

1052, 1059 (D.C. Cir. 2007) (citation omitted), as well as the existence of other

litigation, including bankruptcy proceedings. Youkelsone v. FDIC, 910 F. Supp. 2d

213, 228 (D.D.C. 2012) (taking judicial notice of plaintiff’s prior foreclosure

proceedings and bankruptcy case).

If the Court considers materials outside the pleading on which the complaint

does not “necessarily rely,” or outside the public record, it must convert the motion to

dismiss into one for summary judgment. Kim v. United States, 632 F.3d 713, 719 (D.C.

Cir. 2011) (citing Fed. R. Civ. P. 12(d)); see also Wiley v. Glassman, 511 F.3d 151, 160

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(D.C. Cir. 2007) (same). 2 “The decision to convert a motion to dismiss into a motion

for summary judgment . . . is committed to the sound discretion of the trial court.”

Flynn v. Tiede-Zoller, Inc., 412 F. Supp. 2d 46, 50 (D.D.C. 2006) (citations omitted).

In exercising this discretion, the “reviewing court must assure itself that summary

judgment treatment would be fair to both parties[.]” Tele-Comm’cns of Key West, Inc.

v. United States, 757 F.2d 1330, 1334 (D.C. Cir. 1985). Fairness generally requires

giving the parties notice and an opportunity to be heard on the issue of summary

judgment, see Kim, 632 F.3d at 719, or at least an opportunity to contest the materials

outside the pleadings “such that they are not taken by surprise[,]” Bowe-Connor v.

Shinseki, 845 F. Supp. 2d 77, 86 (D.D.C. 2012).

In this case, Tefera attached six documents to his complaint, which are

necessarily considered to be part of the complaint: an affidavit describing his payment

history (Tefera Aff.); the recorded physical address of his home (Ex. A to Compl., ECF

No. 1-1 at 10); an itemized list of improvements and maintenance at his home (Ex. B to

Compl., ECF No. 1-1 at 11); a letter dated June 6, 2013, from Tefera to OneWest Bank

(Ex. C to Compl., ECF No. 1-1 at 12-14); a letter dated June 6, 2013, from Tefera to

OneWest Bank entitled “Qualified Written Request” (Ex. D to Compl., ECF No. 1-1 at

15-20); and the Notice of Foreclosure Sale of Real Property to Tefera’s home, recorded

2

Specifically, Rule 12(d), entitled “Result of Presenting Matters Outside the Pleadings,” states that

“[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not

excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All

parties must be given a reasonable opportunity to present all the material that is pertinent to the

motion.” Fed. R. Civ. P. 12(d).

3

The result is no different if the Court construes Tefera’s complaint to allege fraud, since Tefera

should have known of the purported fraud, at the very latest, by the time HSBC recorded its deed to the

foreclosed property. See Drake v. McNair, 993 A.2d 607, 617 (D.C. 2010) (a fraud action accrues on

the date the plaintiff knew or should have known “(1) the existence of the alleged injury, (2) its cause

in fact, and (3) some evidence of wrongdoing” (citation omitted)).

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on October 4, 2006 (id. at 21-22). Defendant attached additional materials to its motion

to dismiss, including the refinanced mortgage agreement deed of trust to Tefera’s home

(Ex. A to Def.’s Mot., ECF No. 4-2, at 2-18); the substitute trustees’ deed selling the

interest in the property to HSBC in its role as trustee for BCAP2006-AA2, a

securitization (Ex. B to Def.’s Mot., ECF No. 4-3, at 2-3); and the docket sheet to

Tefera’s bankruptcy case in United States Bankruptcy Court for the District of

Columbia (Ex. C to Def.’s Mot., ECF No. 4-4, at 2-8). The Court finds that the first

two documents the Defendant submitted—the mortgage refinance agreement and deed

of trust, as well as the substitute trustees’ deed to HSBC—are incorporated by reference

into the complaint, given that Tefera described the nature of the problem as stemming

from the “original note” and its conversion into stock. (See Compl. at 4-5.) See Busby,

932 F. Supp. 2d at 133-34. What is more, the Defendant’s two documents that were

filed with the D.C. Recorder of Deeds may be considered on a motion to dismiss as

public records. See Abhe & Svoboda, 508 F.3d at 1059. The Court will also take

judicial notice of the bankruptcy docket and thereby consider Defendant’s third exhibit.

See Youkelsone, 910 F. Supp. 2d at 228. Accordingly, the Court will consider all of the

documents attached to Defendant’s motion to dismiss without converting the motion

into one for summary judgment; and, as such, the standards of Rule 12(b)(6) apply.

III. ANALYSIS

Tefera’s complaint cannot survive Defendant’s Rule 12(b)(6) motion to dismiss

for several reasons.

A. Tefera’s Complaint Fails To Satisfy The Required Notice Pleading

Standards

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The complaint in this case does not meet the minimum requirements of Rule

8(a), as it contains only the repeated conclusory allegations that the foreclosure was

“illegal” and that the bank’s treatment of the mortgage note was improper. (See, e.g.,

Compl. at 2, 4.) To the extent that these conclusory allegations are read to assert

wrongful foreclosure, such a claim certainly fails to comply with Rule 8(a). To state a

claim for wrongful foreclosure, the plaintiff must allege sufficient facts to state a

plausible claim that he “sustain[ed] damages by reason of a foreclosure executed in a

manner contrary to law.” Robinson v. Deutsche Bank Nat’l Trust Co., 932 F. Supp. 2d

95, 103 (D.D.C. 2013) (quoting Johnson v. Fairfax Vill. Condo. IV Unit Owners Ass’n,

641 A.2d 495, 505 (D.C. 1994)); Jackson v. ASA Holdings, 751 F. Supp. 2d 91, 101

(“[A]n essential element of a wrongful foreclosure claim is establishing that the

foreclosure was contrary to law.” (citation omitted)). Among other things, foreclosure

is contrary to law when it fails to meet the statutory notice requirements of D.C. law,

see, e.g., Robinson, 932 F. Supp. 2d at 103-104 (alleging that foreclosure was wrongful

because it failed to comply with D.C. Code § 42-815, which requires that foreclosures

follow certain procedural requirements, including issuance of a notice of foreclosure

and delivery of the notice to the homeowner), or when the foreclosure is executed in a

way that violates common law duties, see, e.g., Cassidy v. Owen, 533 A.2d 253, 255

(D.C. 1987) (alleging that the foreclosure was wrongful under a theory of equitable

estoppel because of the bank’s misrepresentation of the amount due on the mortgage

note).

Tefera has not shown that the foreclosure of his property failed to meet any such

statutory requirements or common law duties. Tefera has not identified any regulations

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that Defendant violated, nor any procedures that Defendant failed to follow, and he has

failed to identify any standards that Defendant somehow failed to meet. Indeed, in the

absence of any such statement, Tefera’s complaint is exactly the type of “defendant-

unlawfully-harmed-me accusation” that the Federal Rules are designed to prevent,

Iqbal, 556 U.S. at 678, and, as such, it fails to state a claim for wrongful foreclosure.

See Jackson, 751 F. Supp. 2d at 101 (“A conclusory allegation that Defendants

wrongfully foreclosed is totally inadequate to state a claim for wrongful foreclosure.”).

The documents attached to the complaint and the Defendant’s motion to dismiss do not

help matters; indeed, they clearly indicate that, after Tefera defaulted on his mortgage,

a Notice of Foreclosure Sale was properly filed and recorded, as were the resulting

foreclosure purchase documents. (See Foreclosure Notice, Compl., ECF No. 1-1, at 21;

HSBC Deed, Ex. B to Def.’s Mot.) These documents suggest that the foreclosure was

proper, and thus that Tefera’s mere conclusory allegation that the foreclosure was not

proper does not state a viable claim for relief. See Brooks-Miller v. England, 357 F.

Supp. 2d 197, 202 (D.D.C. 2004) (“[T]he Court finds that the plaintiff cannot state a

viable claim for relief where the facts and allegations set forth in her complaint are

contradicted by her later pleadings.” (citation omitted)); see also Franklin v. Asaph Ltd.

P’ship v. FDIC, 794 F. Supp. 402, 404 (D.D.C. 1992) (“[T]he court will not accept

conclusory allegations concerning the legal effect of the events plaintiff has set out if

these allegations do not reasonably follow from his description of what happened, or if

these allegations are contradicted by the description itself.” (internal quotation marks

and citation omitted)). Accordingly, the Court finds that the complaint should be

10

dismissed under Rule 12(b)(6) for failure to meet the notice pleading requirements of

Rule 8(a).

To the extent that Tefera’s complaint can be read to allege a breach of contract

based on obligations set forth in the original note, the Court reaches the same

conclusion. To establish a prima facie case of breach of contract under D.C. law, a

plaintiff must allege sufficient facts to support the existence of the following elements:

“(1) a valid contract between the parties; (2) an obligation or duty arising out of the

contract; (3) a breach of that duty; and (4) damages caused by breach.” Millenium

Square Residential Ass’n v. 2200 M St. LLC, No. 11-1632, 2013 WL 3462573, at *8

(D.D.C. July 10, 2013) (quoting Paulin v. George Wash. Univ. Sch. of Med., 878 F.

Supp. 2d 241, 246 (D.D.C. 2012)). Here, even assuming that the contract at issue is the

original mortgage note, Tefera has not established that Defendant OneWest was a party

to the contract, nor has he pointed to any particular language in the mortgage note or

any other agreement setting forth a duty that Defendant OneWest either owed or

breached. The complaint thus fails to contain sufficient factual material to show that

any breach of contract is plausible on its face. See, e.g., Ihebereme v. Capital One,

N.A., 730 F. Supp. 2d 40, 48 (D.D.C. 2010) (“Without a contractual duty, there can be

no breach of contract, and by not identifying any duty under [a] contract to forbear from

taking any of the actions alleged, plaintiff has not stated a claim for breach of

contract.”).

Likewise, to the extent that Tefera’s claims sound in fraud, he has fallen short of

stating such a claim. Rule 9(b) requires a plaintiff to “state with particularity the

circumstances constituting fraud,” Fed. R. Civ. P. 9(b), which requires pleading

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“matters such as the time, place and content of the false [representations], the

misrepresented fact and what the opponent retained or the claimant lost as a

consequence of the alleged fraud.” Henok v. Chase Home Fin., LLC, 922 F. Supp. 2d

110, 122 (D.D.C. 2013) (internal quotation marks and citation omitted). This rule

applies even to plaintiffs who are proceeding pro se. See Elemary v. Philipp Holzmann

A.G., 533 F. Supp. 2d 116, 137 (D.D.C. 2008) (“Rule 9(b) applies with equal strength to

defendants sued by a pro se litigant . . . [and] requires that the pleader provide the who,

what, when, where, and how with respect to the circumstances of the fraud.” (internal

quotation marks and citation omitted)); Shekoyan v. Sibley Int’l Corp., 217 F. Supp. 2d

59, 64 (D.D.C. 2002) (“[S]ome degree of particularity regarding a claim of fraud must

be pled even by a pro se litigant to satisfy Rule 9(b).” (citation omitted)). The instant

complaint contains a single reference to fraud, in the form of a conclusory

characterization of Defendant’s actions: “tak[ing] someone[’s] home without any

documentation is a crime (Fraud).” (Compl. at 5.) This single conclusory reference to

fraud misses the mark for notice pleading under Rule 8, let alone the heightened

pleading standard required for fraud claims under Rule 9(b). Accordingly, whether

Tefera’s complaint sounds in wrongful foreclosure, breach of contract, or fraud, it fails

to state a claim upon which relief can be granted and must be dismissed pursuant to

Rule 12(b)(6).

B. The Applicable Statutes Of Limitations Bars Tefera’s Claims

Notably, even if Tefera had lived up to the pleading requirements, his claims still

would not survive dismissal because they are time-barred. Section 12-301 of the D.C.

Code sets forth the limitations periods for different causes of action. D.C. Code § 12-

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3011 (2013). The relevant limitations period for Tefera’s claims is three years—

whether he alleges a simple contract claim based on obligations set forth in the

mortgage note, id. § 12-301(7); a wrongful foreclosure claim, id. § 12-301(8); or a

claim of fraud, id. § 12-301(8); see also Bakeir v. Capital City Mortg. Corp., 926 F.

Supp. 2d 320, 334 (D.D.C. 2013) (“Under District of Columbia law, fraud claims are

subject to a three-year statute of limitations.” (citation omitted)).

Defendant argues that whichever cause of action Tefera alleges, the applicable

three-year statute of limitations bars his claims. This Court agrees. In a wrongful

foreclosure action, the three-year statute of limitations accrues on the date the notice of

foreclosure issues. See Murray v. Wells Fargo Home Mortg., 953 A.2d 308, 322 (D.C.

2008). The notice of foreclosure in this case issued on February 13, 2009. (Notice of

Foreclosure, ECF No. 1-1, at 21-22.) Thus, the statute of limitations expired for

Tefera’s wrongful foreclosure claim three years from that date—on February 13, 2012.

Because Tefera did not file the instant complaint until June 2013, his claim is time-

barred.

The same is true of Tefera’s possible breach of contract claim. Under D.C. law,

a breach of contract accrues when the contract is first breached or, at the latest, when

the contract is terminated. See Material Supply Int’l v. Sunmatch Indus., 146 F.3d 983,

992 (D.C. Cir. 1998). Assuming that the contract at issue in Tefera’s complaint is the

initial mortgage agreement, the alleged breach must have occurred by the time HSBC

recorded its deed, and could possibly have occurred earlier—perhaps, for example,

when the bank “separate[d]” the original note from the mortgage note. (See, e.g.,

Compl. at 4.) HSBC recorded its deed to the property purchased at the foreclosure sale

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on May 14, 2009 (See Deed of Trust, Ex. B to Def.’s Mot., ECF No. 4-3, at 2);

consequently, at the very latest, the claim accrued on that date, and the time to file

expired on May 15, 2012. 3

In sum, whether Tefera intended to bring a wrongful foreclosure claim, a breach

of contract claim, or some other cause of action, he filed his complaint outside of the

relevant window of time, and the statute of limitations bars his claims.

Undaunted, Tefera asserts that there should be “no time limitation” for banks

such as Defendant, arguing that the bank was misleading its customers and that it would

be unfair to find his claims time-barred. (Pl.’s Opp’n at 2.) But this argument appears

to have no basis, for the Court cannot find any statutory provision or legal precedent

that permits or requires setting aside a statute of limitations merely because the

defendant owed a fiduciary duty to plaintiff. And although a court may set aside a

statute of limitations when a defendant fraudulently conceals his conduct such that the

defendant’s fraud contributed to the plaintiff’s filing delay, see Riddell v. Riddell Wash.

Corp., 866 F.2d 1490, 1498 (D.C. Cir. 1989) (noting that fraudulent concealment of

foreclosure could toll the applicable statute of limitations), Tefera has made no such

allegation in the complaint. Nor does the Court any find reason to apply an equitable

doctrine to toll the statute of limitations in this case, especially since it is clear beyond

cavil that Tefera had notice of the foreclosure by the time HSBC recorded its possession

of the property. Cf. Williams v. Connor, 522 F. Supp. 2d 92, 100-101 (D.D.C. 2007)

3

The result is no different if the Court construes Tefera’s complaint to allege fraud, since Tefera

should have known of the purported fraud, at the very latest, by the time HSBC recorded its deed to the

foreclosed property. See Drake v. McNair, 993 A.2d 607, 617 (D.C. 2010) (a fraud action accrues on

the date the plaintiff knew or should have known “(1) the existence of the alleged injury, (2) its cause

in fact, and (3) some evidence of wrongdoing” (citation omitted)).

14

(declining to toll the statute of limitations on the plaintiff’s wrongful foreclosure claim

where there was no indication that defendant had withheld notice of foreclosure).

Tefera did not file the instant complaint until June 2013—more than one year

after even the most generous expiration date of the relevant statute of limitations.

Accordingly, this Court agrees with Defendant that, even if the allegations of the

complaint survived scrutiny under the applicable pleading standards, Tefera’s claims

must be dismissed as time-barred.

IV. Conclusion

For the foregoing reasons, Defendant’s motion is GRANTED and the complaint is

dismissed in its entirety. A separate order consistent with this opinion will follow.

Date: January 31, 2014 Ketanji Brown Jackson

KETANJI BROWN JACKSON

United States District Judge

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