Carr v. Bank of America
Filing
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OPINION AND ORDER that Magistrate Judge Gerrilyn G. Brill's Non-Final Report and Recommendation 5 and Final Report and Recommendation 7 are ADOPTED. Defendant's Motion to Dismiss 3 is GRANTED, and Plaintiff's claims are DISMISSED WITH PREJUDICE. Signed by Judge William S. Duffey, Jr on 6/11/2014. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LEDANTE CARR,
Plaintiff,
v.
1:13-cv-2864-WSD
BANK OF AMERICA,
Defendant.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Gerrilyn G. Brill’s NonFinal Report and Recommendation [5] (“Non-Final R&R”) and Final Report and
Recommendation [7] (“Final R&R”), which recommend granting Bank of
America’s (“Defendant” or “BoA”) Motion to Dismiss [3], and dismissing Plaintiff
Ledante Carr’s (“Plaintiff” or “Carr”) claims with prejudice.
I.
BACKGROUND
On July 19, 2013, Plaintiff, proceeding pro se, filed his Complaint [1.1] in
the Superior Court of Cobb County, Georgia.1 Plaintiff asserts claims for violation
of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq.,
and the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et
seq., and various state laws, based on perceived defects in the origination,
1
No. 1316098-33.
servicing and assignment of his mortgage and in the foreclosure proceedings
initiated by BoA, the successor by merger to Plaintiff’s original lender,
Countrywide Bank.2
On August 28, 2013, Defendant removed the Cobb County Action to this
Court based on federal question and diversity jurisdiction [1].
On September 4, 2013, Defendant filed its Motion to Dismiss [3]. Plaintiff
did not respond to Defendant’s Motion.
On October 24, 2013, Magistrate Judge Brill issued her Non-Final R&R,
recommending that Plaintiff’s state-law and FDCPA claims be dismissed with
prejudice. Noting that Plaintiff could possibly state a claim for relief under
RESPA, Magistrate Judge Brill granted Plaintiff fourteen (14) days to amend his
complaint to assert facts sufficient to support a RESPA claim.3
On November 26, 2013, Magistrate Judge Brill issued her Final R&R,
recommending that Plaintiff’s RESPA claim also be dismissed with prejudice
2
Plaintiff refers to Countrywide Bank as his original lender. (Compl. at 11-13).
On April 27, 2009, Countrywide Bank merged into Bank of America, N.A. See
http://www2.fdic.gov/idasp/confirmation_outside.asp?inCert1=33143 (last visited
June 11, 2014).
3
Magistrate Judge Brill also concluded that removal was proper because Plaintiff
asserts federal claims and because complete diversity exists among the parties and
the amount in controversy exceeds $75,000. The Court finds no plain error in this
conclusion. See 28 U.S.C. §§ 1331, 1332(a), 1441.
2
because Plaintiff did not file an amended complaint and did not request an
extension of time to do so.
II.
DISCUSSION
A.
Legal Standards
1.
Review of a Magistrate Judge’s R&R
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v.
Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983).
The parties have not objected to the R&Rs and the Court thus conducts a plain
error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.
1983), cert. denied, 464 U.S. 1050 (1984).
2.
Motion to Dismiss for Failure to State a Claim
On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the Court must “assume that the factual allegations in the
complaint are true and give the plaintiff[] the benefit of reasonable factual
inferences.” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir.
2010). Although reasonable inferences are made in the plaintiff’s favor,
“‘unwarranted deductions of fact’ are not admitted as true.” Aldana v. Del Monte
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Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005) (quoting S. Fla. Water
Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (1996)). Similarly, the Court is
not required to accept conclusory allegations and legal conclusions as true. See
Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)
(construing Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570)). Mere “labels and
conclusions” are insufficient. Twombly, 550 U.S. at 555. “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 (citing Twombly, 550 U.S. at 556). This requires more than
the “mere possibility of misconduct.” Am. Dental, 605 F.3d at 1290 (quoting
Iqbal, 556 U.S. at 679). The well-pled allegations must “nudge[] their claims
across the line from conceivable to plausible.” Id. at 1289 (quoting Twombly, 550
U.S. at 570).
Complaints filed pro se are to be liberally construed and are “held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,
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551 U.S. 89, 94 (2007) (citations and internal quotation marks omitted).
Nevertheless, a pro se plaintiff must comply with the threshold requirements of the
Federal Rules of Civil Procedure. “Even though a pro se complaint should be
construed liberally, a pro se complaint still must state a claim upon which the
Court can grant relief.” Grigsby v. Thomas, 506 F. Supp. 2d 26, 28 (D.D.C. 2007).
“[A] district court does not have license to rewrite a deficient pleading.” Osahar v.
U.S. Postal Serv., 297 F. App’x 863, 864 (11th Cir. 2008).
B.
Analysis4
1.
Violation of the FDCPA
Plaintiff claims that BoA violated the FDCPA by failing to respond to his
request for verification of the debt owed on his mortgage. Magistrate Judge Brill
found that relief cannot be granted on this claim because Plaintiff failed to show
4
The Court notes that Plaintiff’s Complaint is a variation of form complaints filed
by persons seeking to avoid or delay foreclosure. See, e.g., Tonea v. Bank of Am.,
N.A., No. 1:13-cv-1435-WSD; Wardrop v. PHH Mortg. Corp., No. 1:13-cv-3822JEC; Davis v. JPMorgan Chase Bank, No. 1:13-cv-2982-AT; McIntyre v.
JPMorgan Chase Bank, No. 1:13-cv-2981-RLV; Henry v. Nationstar Mortg. LLC,
No. 1:13-cv-2339-MHS. Plaintiff’s Complaint is devoid of any meaningful facts
and his vague, conclusory allegations are wholly insufficient to support a claim for
relief. Plaintiff’s Complaint is an impermissible “shotgun pleading” that fails to
meet the requirements of Rule 8 of the Federal Rules of Civil Procedure, and
dismissal is warranted on this basis alone. See, e.g., Osahar, 297 F. App’x at 864;
Maldonado v. Snead, 168 F. App’x 373, 377 (11th Cir. 2006); Magluta v. Samples,
256 F.3d 1282, 1284 (11th Cir. 2001); Johnson Enters. of Jacksonville, Inc. v. FPL
Group, Inc., 162 F.3d 1290, 1333 (11th Cir. 1998).
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that BoA was a “debt collector” under the FDCPA, including because Plaintiff did
not allege, and it did not appear, that his loan was in default when it was acquired
by BoA. Magistrate Judge Brill recommended that this claim be dismissed,
pursuant to Rule 12(b)(6), and the Court finds no plain error in this
recommendation. See McWeay v. Citibank, N.A., 521 F. App’x 784 (11th Cir.
2013) (loan servicer was not a “debt collector” within meaning of FDCPA, thus
precluding mortgagor’s claim that defendant violated FDCPA by failing to respond
to request for verification of debt); Reese v. Ellis, Painter, Ratteree & Adams, LLP,
678 F.3d 1211, 1216 (11th Cir. 2012) (To state a plausible FDCPA claim, plaintiff
must allege, among other things, that the defendant is a “debt collector” under the
FDCPA); Fenello v. Bank of Am., N.A., 926 F. Supp. 2d 1342, 1350 (N.D. Ga.
2013) (Under the FDCPA, “a debt collector does not include the consumer’s
creditors, a mortgage servicing company, or an assignee of a debt, as long as the
debt was not in default at the time it was assigned.”) (internal quotation omitted).
2.
State-law claims
Plaintiff claims that he was not loaned any money, so he does not owe a
debt. He therefore asserts that he has not defaulted on his mortgage and cannot be
foreclosed upon. Magistrate Judge Brill found that relief cannot be granted on this
claim because a promissory note is a promise to make payments, not an actual
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payment. Magistrate Judge Brill recommended that this claim be dismissed
pursuant to Rule 12(b)(6), and the Court finds no plain error in this
recommendation. See Thomas v. Countrywide Home Loans, No. 2:09-cv-82,
2010 WL 1328644, at *2 (N.D. Ga. Mar. 29, 2010) (collecting cases rejecting
“vapor credit” theories); Yeboah v. Bank of New York Mellon, No. 1:12-cv-2139,
2012 WL 4759246, at *5 (N.D. Ga. Aug. 30, 2012) (“Plaintiff’s argument is
commonly known as the ‘vapor money’ theory or a ‘no money lent’ claim. Such
claims ‘fail as a matter of law.’”) (King, M.J.) adopted at 2012 WL 4759242 (N.D.
Ga. Oct. 5, 2012) (Thrash, J.).
Plaintiff also argues that his mortgage was improperly securitized, that an
unspecified assignment of his mortgage was a “sham,” and that BoA cannot
foreclose on his property because it has not produced the original promissory note.
Magistrate Judge Brill found that relief cannot be granted on these claims because
they are not cognizable under Georgia law. Magistrate Judge Brill recommended
that these claims be dismissed pursuant to Rule 12(b)(6), and the Court finds no
plain error in this recommendation. See, e.g., Searcy v. EMC Mortg. Corp.,
No. 1:10-cv-0965, 2010 Dist. LEXIS 119975, at *2 (N.D. Ga. Sept. 30, 2010)
(“While it may well be that Plaintiff’s mortgage was pooled with other loans into a
securitized trust that then issued bonds to investors, that fact would not have any
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effect on Plaintiff’s rights and obligations with respect to the mortgage loan, and it
certainly would not absolve Plaintiff from having to make loan payments or
somehow shield Plaintiff’s property from foreclosure.”); Montgomery v. Bank of
Am., 740 S.E.2d 434, 436 (Ga. Ct. App. 2013) (because assignment of security
deed was contractual, plaintiff lacked standing to contest its validity because he
was not a party to the assignment); You v. JP Morgan Chase Bank, 743 S.E. 2d 428,
433 (Ga. 2013) (“Under Georgia law, the holder of a deed to secure debt is authorized
to exercise the power of sale in accordance with the terms of the deed even if it does
not also hold the note or otherwise have any beneficial interest in the debt obligation
underlying the deed.”).
3.
Violation of RESPA
Plaintiff alleges that BoA violated RESPA by failing to respond to his
Qualified Written Requests (“QWRs”). Magistrate Judge Brill found that relief
cannot be granted on this claim because Plaintiff failed to allege that he suffered
any actual damages as a result of BoA’s failure to respond, and he does not allege
that BoA has engaged in a pattern or practice of failing to respond to QWRs.
Magistrate Judge Brill recommended that this claim be dismissed pursuant to Rule
12(b)(6), and the Court finds no plain error in this recommendation. See Frazile v.
EMC Mortg. Corp., 382 F. App’x 833, 836 (11th Cir. 2010) (allegation of damages
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“is a necessary element of any claim under [RESPA]”).
4.
Dismissal with prejudice
Magistrate Judge Brill concluded that amendment would be futile because
BoA was not acting as a debt collector for purposes of the FDCPA, and because
Plaintiff’s state-law claims are based on legally meritless theories, and she
recommended that these claims be dismissed with prejudice. Magistrate Judge
Brill also recommended that Plaintiff’s RESPA claim be dismissed with prejudice
because, having been given an opportunity to amend his complaint to assert facts
to support his RESPA claim, Plaintiff failed to do so. The Court finds no error in
these recommendations. Plaintiff has not, and cannot, assert a viable claim based
on perceived defects in the origination, servicing or assignment of his mortgage, or
in the foreclosure proceedings initiated by BoA, and Plaintiff’s claims are required
to be dismissed with prejudice. See Taylor v. McSwain, 335 F. App’x 32, 33 (11th
Cir. 2009) (per curiam) (courts should not dismiss a pro se plaintiff’s complaint
with prejudice “without first giving the plaintiff an opportunity to amend the
complaint if a more carefully drafted complaint might state a claim.”); Burger King
Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999) (“[D]enial of leave to
amend is justified by futility when the complaint as amended is still subject to
dismissal.”); Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1255 (11th Cir. 2008)
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(“Because justice does not require district courts to waste their time on hopeless
cases, leave may be denied if a proposed amendment fails to correct the
deficiencies in the original complaint or otherwise fails to state a claim.”).5
II.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Gerrilyn G. Brill’s Non-
Final Report and Recommendation [5] and Final Report and Recommendation [7]
are ADOPTED. Defendant’s Motion to Dismiss [3] is GRANTED, and
Plaintiff’s claims are DISMISSED WITH PREJUDICE.
SO ORDERED this 11th day of June, 2014.
5
To the extent Plaintiff claims that Defendant violated RESPA by failing to
respond to his June 30, and July 1, 2013, QWRs, Plaintiff filed his Complaint on
July 19, 2013—at most, 13 business days after he mailed a QWR—and thus his
RESPA claim is premature. See Compl. at 6; 12 U.S.C. § 2605(e)(2) (requiring a
servicer to respond “[n]ot later than 30 days (excluding legal public holidays,
Saturdays, and Sundays) after the receipt from any borrower of any [QWR]”). The
Court notes further that Plaintiff’s purported QWR attached to his Complaint does
not “include[], or otherwise enable[] the servicer to identify, the name and account
of the borrower” as required to be a valid QWR under 12 U.S.C. § 2605(e)(1)(B).
Plaintiff has not, and cannot, state a claim for violation of RESPA, and this claim
is required to be dismissed with prejudice for this additional reason.
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