Houey et al v. TD Bank, N.A.
ORDER denying without prejudice 10 Motion to Remand to State Court; denying without prejudice 12 Motion to Cancel Foreclosure Sale. The plaintiffs may file response to TD Bank's motion to Dismiss 7 on or before 15 days from entry of this Order.. Signed by District Judge Martin Reidinger on 11/8/2011. (Pro se litigant served by US Mail.)(pdf)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL CASE NO. 1:11cv225
HELEN CLIETTE HOUEY and
CAROLINA FIRST BANK,
THIS MATTER is before the Court on the following:
A Motion for Remand [Doc. 10] filed in this matter by Michelle Smith;
TD Bank’s Motion to Dismiss [Doc. 7]; and
A Motion to Cancel Foreclosure Sale [Doc. 12] filed in this matter by
In August 2011, Plaintiffs Helen Cliette Houey and Emmanuel Houey
(Houeys), appearing pro se, filed a thirty-seven page Complaint in state court
alleging eighteen causes of action against the Defendants. [Doc. 1-1]. The
Houeys alleged $290,000.00 in damages stemming primarily from the
Defendants’ foreclosure of real property owned by Plaintiff Helen Houey in
Shelby, North Carolina. [Id.]. The property at issue has been pledged as
collateral for a commercial promissory note which is purportedly in default.
[Id.]. TD Bank is the successor by merger to Carolina First Bank, and it
removed the action to this Court on September 8, 2011 on the basis of both
diversity and federal question jurisdiction. [Doc. 1].
In response to the removal, Michelle Smith (Smith) filed the motions to
remand the action to state court and to cancel the foreclosure sale.1 [Doc.
10]. In the motion to remand, Smith states that she has changed the names
of the Plaintiffs because Emmanuel Houey does not own the real property at
issue; instead, she and Helen Houey allegedly own the property. [Id.]. Helen
Houey has not, however, moved for leave to amend the Complaint to add
Smith as a party plaintiff. Fed.R.Civ.P. 15. Nor has Smith moved for leave
to intervene in the action as a plaintiff. Fed.R.Civ.P. 24. Instead, Smith has
simply signed both of the pending motions on behalf of Helen Houey. [Doc.
10]. In addition, Plaintiff Emmanuel Houey has not moved to dismiss the
claims he has asserted against the Defendants.
Smith is allegedly the daughter of Helen Houey. [Doc. 1-1 at 56].
“While [28 U.S.C. §1654] allows [Michelle Smith] to prosecute [her] own
actions in propria persona, that right is personal to [her], and absent some
other statutory authorization, [she] has no authority to prosecute an action in
federal court on behalf of others than [herself].” Stoner v. Santa Clara County
Office of Education, 502 F.3d 1116, 1126 (9 th Cir. 2007), cert. denied 552 U.S.
1281, 128 S.Ct. 1728, 170 L.Ed.2d 515 (2008). Even the non-attorney parent
of a minor child may not represent the interests of that child in litigation.
Myers v. Loudoun County Public Schools, 418 F.3d 395 (4 th Cir. 2005). The
right to litigate one’s claims without an attorney does not give rise to the right
to litigate for others. Id., at 400; Kelly v. University Health Systems, 2011 WL
780597 (E.D.N.C. 2011) (daughter could not bring action on behalf of mother
in pro se capacity); accord, Navin v. Park Ridge Sch. Dist., 270 F.3d 1147,
1149 (7 th Cir. 2001) (stating pro se litigants lack authority to represent the
interests of other parties).
Helen Houey has not moved for leave to amend the Complaint and
Smith has not moved for leave to intervene in this action. Moreover, even if
Smith were a party to the action, she still could not represent the interests of
her mother because she is not licensed as an attorney in this Court. As a
result, the motions to remand and to cancel will be denied without prejudice
to the rights, if any, of the named Plaintiffs to so move. It is also noted that
the Houeys have failed to respond to the Defendants’ motion to dismiss. The
Houeys will be provided with a short period of time within which to file
response. Smith, however, is cautioned that she may not prepare and file
response on behalf of her mother. S.E.C. v. White, 2011 WL 1544202 (D.S.C.
2011) (noting that even if family member holds power of attorney for party,
non-lawyer cannot represent pro se party without violating law regarding
unauthorized practice of law) (citations omitted); Bennett v. Owens, 2009 WL
1916707 (D.S.C. 2009); N.C. Gen. Stat. §84-4.
Helen and Emmanuel Houey are hereby provided notice that the
Defendants have moved to dismiss this action on the ground that the claims
asserted in the Complaint do not state claims upon which legal relief may be
granted. [Doc. 8]. The Defendants also argue that the Complaint should be
dismissed because the causes of action asserting claims for fraud are not
alleged with sufficient particularity; that is, the pleader has not alleged the
time, place and contents of false representations and/or the identities of
individuals making the misrepresentations. [Id.].
Because the Plaintiffs proceed pro se, the Court will provide instruction
as to their obligation to respond to the motion and the time within which to do
so. Roseboro v. Garrison, 528 F.2d 309 (4 th Cir. 1975). The Plaintiffs are
cautioned that failure to respond to the Motion to Dismiss will result in its
being granted in which case the lawsuit will be dismissed.
In responding to this motion, the Plaintiffs must show that they have
made sufficient allegations in the Complaint to support causes of action
against the Defendants which are recognized by law.
To survive [the] motion, “[f]actual allegations must be strong
enough to raise a right to relief above the speculative level” and
have “enough facts to state a claim to relief that is plausible on its
face.” [T]he court “need not accept the [Plaintiffs’] legal
conclusions drawn from the facts,” nor need it “accept as true
unwarranted inferences, unreasonable conclusions, or
Philips v. Pitt County Memorial Hospital, 572 F.3d 176, 179-80 (4 th Cir. 2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007) (other citations omitted).
The Plaintiffs are therefore advised that the Complaint must contain
factual matter which, if accepted as true, would “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 674, 129 S.Ct. 1937,
1949, 173 L.Ed.2d 868 (2009) (citation omitted). A claim is facially plausible
when a plaintiff pleads sufficient factual content to allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
IT IS, THEREFORE, ORDERED as follows:
the Motion for Remand [Doc. 10] filed in this matter by Michelle Smith
is hereby DENIED without prejudice;
the Motion to Cancel Foreclosure Sale [Doc. 12] filed in this matter by
Michelle Smith is hereby DENIED without prejudice;
the Plaintiffs Helen and Emmanuel Houey may file response to TD
Bank’s Motion to Dismiss [Doc. 7] on or before fifteen (15) days from
entry of this Order. Failure to do so may result in the dismissal of this
action without further notice.
Signed: November 8, 2011