Winstead v. Emc Mortgage Corporation

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WHEELER WINSTEAD, : : Plaintiff, : Civil Action No.: 09-997 (RMU) : v. : Re Document No.: 31 : HOMEQ SERVICING, : : Defendant. :

MEMORANDUM OPINION

GRANTING THE DEFENDANT’S MOTION TO DISMISS

This case is before the court upon consideration of defendant HomeQ Servicing’s motion

to dismiss. The pro se plaintiff, the owner of property subject to foreclosure proceedings, asserts

that the defendant 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. See generally Compl.

This court previously dismissed all of the defendants that were originally in this case with

the sole exception of HomeQ Servicing, which had not yet filed a motion to dismiss. See

generally Mem. Op. (Mar. 22, 2010); Amended Order (Mar. 23, 2010). Subsequently, HomeQ

Servicing requested leave to file a motion to dismiss, see generally HomeQ’s Mot. for Leave,

which the court granted, Minute Order (Nov. 3, 2010). On November 3, 2010, HomeQ

Servicing filed its motion to dismiss. The plaintiff, however, did not respond within the

prescribed time under the local rules. See LCvR 7(b) (requiring that a party oppose a motion

within 14 days of its service unless the court directs otherwise).

As the plaintiff is pro se, the court issued an order on May 25, 2011 directing the plaintiff to respond by June 15, 2011. Order (May 25, 2011) at 1. The court alerted him that failure to

respond would result in dismissal of this suit. Id. To date, the plaintiff has not responded.

The court has reviewed HomeQ Servicing’s motion to dismiss. It incorporates all of the

arguments previously made by two of the prior defendants in this case, Saxon Mortgage

Services, Inc. and EMC Mortgage Corporation. See Def.’s Mot. at 1-2. Those defendants had

argued that the plaintiff’s TILA and RESPA claims are barred by the applicable statute of

limitations, see Mem. Op. (Mar. 22, 2010) at 4, and that the plaintiff failed to state a cognizable

claim under the FDCPA and NHA, see id. at 4-5. The court granted dismissal after determining

that the plaintiff’s TILA and RESPA claims indeed were time-barred and that the plaintiff has

failed to state cognizable claims under the FDCPA or the NHA. See id. at 4-5.

Because the court, in its previous Memorandum Opinion, has already thoroughly

considered the arguments asserted by HomeQ Servicing, see id. at 4-5, and because the plaintiff

has failed to respond to the defendant’s motion to dismiss, the court grants HomeQ Servicing’s

motion to dismiss. See Fed. Deposit Ins. Corp. v. Bender, 127 F.3d 58, 67 (D.C. Cir. 1997)

(concluding that the district court did not abuse its discretion in granting a motion for summary

judgment as conceded based on the opposing party’s failure to file a timely opposition). An

Order consistent with this Memorandum Opinion is separately and contemporaneously issued

this 16th day of August, 2011.

RICARDO M. URBINA United States District Judge