Brathwaite et al v. SLS Loan Services
MEMORANDUM OPINION and ORDER as more fully set out in order. Signed by Judge Liles C Burke on 12/20/18. (SPT )
2018 Dec-20 PM 04:20
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
COMPTON BRAITHWAITE AND
SPECIALIZED LOAN SERVICING
Case No.: 5:17-cv-00989-LCB
MEMORANDUM OPINION AND ORDER
Plaintiffs, Compton and Faye Braithwaite, who are proceeding pro se, filed
an action to quiet title in the Circuit Court of Madison County, Alabama, on April
25, 2017, against Specialized Loan Servicing aka Specialized Loan Servicing LLC
(hereinafter referred to as “SLS”). (Doc 1-1, p. 12). Plaintiffs’ claims are difficult
to discern, but they appear to assert federal claims pursuant to the
Fair Debt Collection Practices Act, 15 U.S.C.A. § 1692 et seq. (“FDCPA”) and
Truth In Lending Act, 15 U.S.C. § 1601 et seq. (“TILA”) as well as state law
claims for quiet title, breach of contract, and fraud. All of plaintiffs’ claims arise
out of a mortgage, note and subsequent foreclosure action as a result of plaintiffs’
default. SLS answered and counterclaimed in the state court action on June 9,
2017. The case was removed to this Court pursuant to 28 U.S.C. §§ 1441, 1446,
1331, and 1332 on June 12, 2017.
The case currently is before the court on the motion for summary judgment
filed by SLS. (Doc. 16). Upon consideration of the motion, the pleadings, the
briefs, and the parties’ evidentiary submissions, the court concludes that the motion
should be granted as to all pending federal claims.
STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” FED. R. CIV. P. 56(a). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary judgment, a party opposing a
motion for summary judgment must cite “to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials.” FED. R. CIV.
P. 56(c)(1)(A). “The court need consider only the cited materials, but it may
consider other materials in the record.” FED. R. CIV. P. 56(c)(3).
When considering a summary judgment motion, the Court must view the
evidence in the record in the light most favorable to the non-moving party and
draw reasonable inferences in favor of the non-moving party. White v. Beltram
Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015). “[A]t the summary
judgment stage[,] the judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “‘Genuine
disputes [of material fact] are those in which the evidence is such that a reasonable
jury could return a verdict for the non-movant. For factual issues to be considered
genuine, they must have a real basis in the record.’” Evans v. Books-A-Million,
762 F.3d 1288, 1294 (11th Cir. 2014) (quoting Mize v. Jefferson City Bd. of Educ.,
93 F.3d 739, 742 (11th Cir. 1996)). “A litigant’s self-serving statements based on
personal knowledge or observation can defeat summary judgment.” United States
v. Stein, 881 F.3d 853, 857 (11th Cir. 2018); see Feliciano v. City of Miami Beach,
707 F.3d 1244, 1253 (11th Cir. 2013) (“To be sure, Feliciano’s sworn statements
are self-serving, but that alone does not permit us to disregard them at the summary
judgment stage.”). Even if the Court doubts the veracity of the evidence, the Court
cannot make credibility determinations of the evidence. Feliciano, 707 F.3d at
1252 (citing Anderson, 477 U.S. at 255). However, conclusory statements in a
declaration cannot by themselves create a genuine issue of material fact. See Stein,
881 F.3d at 857 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
In sum, the standard for granting summary judgment mirrors the standard for
a directed verdict. Anderson, 477 U.S. at 250 (citing Brady v. Southern R. Co., 320
U.S. 476, 479–480 (1943)). The district court may grant summary judgment when,
“under governing law, there can be but one reasonable conclusion as to the
verdict.” Id. at 250. “[T]here is no issue for trial unless there is sufficient evidence
favoring the nonmoving party . . . . If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.”
Id. at 249–50
(internal citations omitted).
In addition, parties who appear pro se are afforded a leniency not granted to
those who are represented by counsel. Cf., e.g., Hughes v. Rowe, 449 U.S. 5, 9
(1980) (“It is settled law that the allegations of [a pro se complaint filed by a state
prisoner], ‘however inartfully pleaded,’ are held to ‘less stringent standards than
formal pleadings drafted by lawyers.’”) (quoting Haines v. Kerner, 404 U.S. 519,
520 (1972)); Harmon v. Berry, 728 F.2d 1407, 1409 (11th Cir. 1984) (same);
Woodall v. Foti, 648 F.2d 268, 271 (5th Cir. 1981) 1 (“A pro se complaint, however
inartfully drafted, must be held to less rigorous standards than the formal pleadings
prepared by lawyers and can only be dismissed for failure to state a claim if it
appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.’”) (quoting Haines).
Even so, the leniency accorded pro se litigants is not unqualified. A pro se
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of
business on September 30, 1981.
plaintiff “must still meet the essential burden of establishing that there is a genuine
issue as to a fact material to his case.” Holifield v. Reno, 115 F.3d 1555, 1561
(11th Cir. 1997) (citing Brown v. Crawford, 906 F.2d 667, 669-70 (11th Cir.
SUMMARY OF FACTS
These facts are undisputed by the parties. The real property that is the
subject of this lawsuit is located in Madison County, Alabama, at 215 Pebblestone
Drive, Hunstville, Alabama 35806, more particularly described as follows:
LOT 7, ACCORDING TO THE MAP OF PLAT OF STONE
VALLEY, AS RECORDED IN PLAT BOOK 38, PAGE 81, IN THE
OFFICE OF THE JUDGE OF PROBATE OF MADISON COUNTY,
(Doc. 1-1, p. 27). On or about November 23, 2001, the Brathwaites, as husband
and wife, acquired title to the Property by Corporation Warranty Deed. 1 (Id.). On
or about November 23, 2001, the Brathwaites financed the purchase by executing
a note and mortgage in the amount of $207,000.00 with mortgagee, Old Stone
Mortgage, L.L.C., SLS’s predecessor in interest.2 (Doc. 16-1, p. 9-27). The note
and mortgage were later assigned by Old Stone Mortgage, L.L.C. to Bankers Trust
Company as Trustee through a Real Estate Lien Assignment recorded on May 16,
2002. 3 (Doc. 16-1, p. 28).
The mortgage provides in paragraph 20, that “[t]he
Recorded November 29, 2001, Book 1008, Page 1079, Probate Court of Madison County, Alabama.
Mortgage recorded November 29, 2001, Book 2926, Page 0950, Probate Court of Madison County, Alabama.
Book 3041, Page 0514, Probate Court of Madison County, Alabama.
Note or a partial interest in the Note (together with this Security Instrument
[mortgage]) can be sold one or more times without prior notice to Borrower.”
(Doc. 16-1, p. 24). On June 9, 2017, the mortgage along with the note 4 was
assigned by Deutsche Bank Trust Company Americas as Trustee fka Bankers Trust
Company as Trustee to The Bank of New York Mellon Trust Company, National
Association (“BNYM”) as successor to Deutsche Bank Trust Company Americas
f/k/a Bankers Trust Corporation, as Trustee for Residential Asset Securities
Corporation, Home Equity Mortgage Asset-Backed Pass-Through Certifies, Series
2002-KS1 (“BNYM”) by an Assignment of Mortgage.5 (Doc. 16-1, p. 29). On or
about June 22, 2016, BNYM appointed SLS as its lawful attorney-in-fact to service
Residential Asset Securities Corporation, Home Equity Mortgage Asset-Backed
Pass-Through Certifies, Series 2002-KS1 via a Limited Power of Attorney. (Id. at
p. 30 and Doc 16-1, p. 4-5) . On April 25, 2017, the plaintiffs filed this action in
the Circuit Court of Madison County and also filed a Notice of Lis Pendens under
Instrument No. 20170425000225510, in the Probate Court of Madison County,
Alabama. (Doc. 16). The Brathwaites admit that they have failed to timely remit
all regular monthly payments under the note and mortgage. (Doc. 24).
September 21, 2017, BNYM foreclosed the Property; BNMY was the highest
The assignment only references the mortgage with no language regarding a separate assignment of the note.
Alabama law provides that in the absence of language otherwise an assignment of the mortgage is an assignment of
the debt and/or note, as well. Crum v. LaSalle Bank, N.A., 44 So.3d 266, 268-70 (Ala. Civ. App. 2009).
Recorded June 29, 2017, Instrument no. 20170629000372590, Probate Court of Madison County, Alabama.
bidder at the foreclosure sale; and a foreclosure deed was entered and recorded
in favor of BNYM on September 26, 2017.6 (Doc. 16-1, p. 7).
Based on what can be deciphered from the Plaintiffs’ pleadings they appear
to argue that they only have a note and mortgage with the original mortgagee Old
Stone Mortgage, LLC; that they did not default on the note and mortgage with the
original mortgagee, even though they admit that they have failed to pay as agreed;
that the subsequent assignments and/or transfers of the note and mortgage are
invalid; that SLS has no right to service or foreclose on the property; that the note
and mortgage were satisfied (paid in full) upon assignment and transfer, thereby
releasing the Plaintiffs from further payments. In sum, plaintiffs claim that these
actions by SLS and other parties that are not subject to this lawsuit have clouded
the title to the property and request the court to quiet title in plaintiffs favor. In
their responses to discovery and summary judgement, plaintiffs assert that their
claims against SLS under the Fair Debt Collection Practices Act, 15 U.S.C.A. §
1692 et seq. and Truth In Lending Act, 15 U.S.C. § 1601 et seq. are now not
appropriate. Their pertinent responses regarding these claims are as follows:
1. In response to interrogatories inquiring about their claims under
FDCPA, they respond “Not Applicable. We initially
misunderstood SLS role in our loan.” (Doc 24, p. 6); and
Instrument no. 20170926000564120, Probate Court of Madison County, Alabama.
2. In their response to summary judgment they assert that “[t]he
Brathwaites determined that all allegations concerning contractual
and TILA violations committed by the original lender, stated in our
pro se Complaint, are not charges that can rightfully be brought
against Defendant, thus we have not repeated them in our
pleadings, but have elected to make them the subject of subsequent
litigation, if necessary.” (Doc. 25, p. 6).
Therefore, the Court finds, even upon appropriate leniency afforded to pro
se litigants, that the pleadings and evidence submitted along with the plaintiffs’
admission that they are not asserting federal claims fail to establish a genuine issue
as to a fact material to their case.
STATE LAW CLAIMS
The only remaining claims against SLS are plaintiffs’ state law claims for
quiet title, breach of contract, and fraud. This court’s jurisdiction over those
claims is founded upon 28 U.S.C. § 1367(a), which provides that,
in any civil action of which the district courts have original jurisdiction,
the district courts shall have supplemental jurisdiction over all other
claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy under
Article III of the United States Constitution.
28 U.S.C. § 1367(a). The district court may decline to exercise supplemental
the claim raises a novel or complex issue of State law,
the claim substantially predominates over the claim or claims
over which the district court has original jurisdiction,
the district court has dismissed all claims over which it has
original jurisdiction, or
in exceptional circumstances, there are other compelling reasons
for declining jurisdiction.
28 U.S.C. § 1367(c) (emphasis supplied). “[I]n the usual case in which all federallaw claims are eliminated before trial, the balance of factors to be considered under
the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and
comity — will point toward declining to exercise jurisdiction over the remaining
state-law claims.” Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n.7
Here, plaintiffs’ federal claims against SLS have been eliminated. Further,
the state court is in a better position to comprehensively resolve all possible
remaining issues regarding title, sale and possession of the subject property.
Accordingly, this court declines supplemental jurisdiction over the remaining state
law claims against SLS.
Based upon the foregoing, the court finds there are no genuine issues of
material fact with regard to any of plaintiffs’ federal claims against defendant,
SLS, and that supplemental jurisdiction over plaintiffs’ state law claims against the
defendant should be declined. Accordingly, the motion for summary judgment
(Doc. 16) filed by Specialized Loan Servicing, LLC is GRANTED. Defendant’s
pending Motion to Quash (Doc. 23) and Motion to Strike (Doc. 26) are hereby
DENIED as moot.
A final judgement will be entered simultaneously with this
memorandum opinion and order.
DONE this December 20, 2018.
LILES C. BURKE
UNITED STATES DISTRICT JUDGE
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