Houey et al v. TD Bank, N.A.
ORDER granting 65 Motion for Summary Judgment and action is DISMISSED with prejudice. Signed by District Judge Martin Reidinger on 2/4/13. (Pro se litigant served by US Mail.) (ejb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL CASE NO. 1:11cv225
HELEN CLIETTE HOUEYand
CAROLINA FIRST BANK, TD BANK,
THIS MATTER is before the Court on the Defendant’s Response to
the October 30, 2012 Order, Motion for Summary Judgment and
Incorporated Memorandum of Law [Doc. 65].
PROCEDURAL AND FACTUAL BACKGROUND
In August 2011, Plaintiffs Helen Cliette Houey (Helen) and Emmanuel
Houey (Emmanuel), appearing pro se, filed a thirty-seven page Complaint
in state court alleging eighteen causes of action against the Defendants.
The Houeys alleged $290,000.00 in damages stemming
primarily from the Defendants’ foreclosure of real property allegedly owned
solely by Helen in Shelby, North Carolina.1 [Id.]. The property at issue had
been pledged as collateral for a commercial promissory note. [Id.]. TD 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 diversity and federal
question jurisdiction.2 [Doc. 1]. The property was sold at foreclosure on
February 28, 2012 to TD as the highest bidder. [Doc. 48]. The Deed was
recorded on April 9, 2012 in Book 1633 at Page 0573 in the Office of the
Register of Deeds of Cleveland County, North Carolina. [Id. at 2].
On March 5, 2012, Helen and Emmanuel filed a Chapter 13 Petition
in the United States Bankruptcy Court. [Doc. 49]. On August 10, 2012, this
Court ruled that the automatic stay provisions of 11 U.S.C. §362 do not
apply to this action and thus dismissed ten of the claims alleged in the
Complaint. [Doc. 49].
On September 12, 2012, Helen and Emmanuel
entered into a Consent Order in the United States Bankruptcy Court for the
Western District of North Carolina. [Doc. 56-1 at 2]. In that Order, they
agreed “[t]hat the automatic stay [had not] been applicable to the real
Emmanuel Houey has never appeared in this action although his name appears on the
caption. It is also undisputed that he did not own the property which is the subject
matter of this action.
The Court hereafter refers to the Defendants in the singular since TD has succeeded to
all interest of Carolina First Bank.
property [at issue] and TD Bank’s foreclosure of that property is complete
and valid.” [Id. at 3].
As a result, this Court ordered the parties to respond as to whether
that Order negated any claim alleged in this action. [Doc. 63]. Helen and
Emmanuel failed to file any response. TD moved for summary judgment.
As result, the Plaintiffs were provided notice pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), of the burden faced in
opposing a motion for summary judgment. [Doc. 67].
On January 2, 2013, Helen filed two motions for an extension of time
within which to respond to the Motion for Summary Judgment. [Doc. 68;
Doc. 69]. Emmanuel made no appearance whatsoever. On January 11,
2013, the Magistrate Judge extended the time within which the Plaintiffs
could respond to February 1, 2013. [Doc. 70]. No response to the motion
has been filed.
STANDARD OF REVIEW
Under the Federal Rules of Civil Procedure, summary judgment
shall be awarded “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, ... show there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(c). As the Supreme Court has
observed, “this standard provides that the mere existence of
some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material
Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 519 (4th
Cir. 2003), cert. denied 541 U.S. 1042, 124 S.Ct. 2171, 158 L.Ed.2d 732
(2004) (emphasis in original).
A genuine issue of fact exists if a reasonable jury considering the
evidence could return a verdict for the nonmoving party. Shaw v. Stroud,
13 F.3d 791, 798 (4th Cir. 1994), cert. denied 513 U.S. 814, 115 S.Ct. 68,
130 L.Ed.2d 24 (1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). “Regardless of
whether he may ultimately be responsible for proof and persuasion, the
party seeking summary judgment bears an initial burden of demonstrating
the absence of a genuine issue of material fact.” Bouchat, 346 F.3d at 522
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553,
91 L.Ed.2d 265 (1986)). If this showing is made, the burden then shifts to
the non-moving party who must convince the Court that a triable issue does
A party opposing a properly supported motion for summary judgment
“may not rest upon the mere allegations or denial of [his]
pleadings,” but rather must “set forth specific facts showing that
there is a genuine issue for trial.” Furthermore, neither
“[u]nsupported speculation,” nor evidence that is “merely
colorable” or “not significantly probative,” will suffice to defeat a
motion for summary judgment; rather, if the adverse party fails
to bring forth facts showing that “reasonable minds could differ”
on a material point, then, regardless of “[a]ny proof or
evidentiary requirements imposed by the substantive law,”
“summary judgment, if appropriate, shall be entered.”
Nonetheless, in considering the facts for the purposes of a summary
judgment motion, the Court will view the pleadings and material presented
in the light most favorable to the nonmoving party.
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986).
The Plaintiffs have failed to respond to the Motion for Summary
Judgment. This is not the first time, moreover, that they failed to abide by
the deadlines provided by this Court. [Doc. 18; Doc. 51; Doc. 63]. The
Court has reviewed the Defendants’ motion and finds that it is factually and
No response or opposition having been filed by the
Plaintiffs, the motion is granted and this action is dismissed.
IT IS, THEREFORE, ORDERED that the Defendant’s Motion for
Summary Judgment and Incorporated Memorandum of Law [Doc. 65] is
hereby GRANTED and this action is hereby DISMISSED with prejudice.
Signed: February 4, 2013