Brissey v. Deutsche Bank National Trust Company et al

Filing 7

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint, DIRECT the Clerk of Court to CLOSE this case, and DENY Plaintiff in forma pauperis status on appeal. Any party seeking to object to this Repor t and Recommendation is ordered to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 7/3/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 6/19/2017. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

LIA BRISSEY,
Plaintiff,

CIVIL ACTION NO.: 2:17-cv-28

v.
DEUTSCHE BANK NATIONAL TRUST
COMPANY; SELECT PORTFOLIO
SERVICING, INC.; BANK OF AMERICA
HOME LOANS; and ACCREDITED HOME
LENDERS, INC.,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter is before the Court for review of Plaintiff’s pro se Complaint and Motions to
Proceed in Forma Pauperis. After review, the Court DENIES Plaintiff’s Motions for Leave to
Proceed in Forma Pauperis, (docs. 2, 5, 6). For the reasons which follow, I RECOMMEND the
Court DISMISS Plaintiff’s Complaint, DIRECT the Clerk of Court to CLOSE this case, and
DENY Plaintiff in forma pauperis status on appeal.
BACKGROUND
Plaintiff filed her Complaint on March 6, 2017. (Doc. 1.) Plaintiff also filed a Motion
for Leave to Proceed in Forma Pauperis. (Doc. 2.) The Court deferred ruling on Plaintiff’s
Motion and directed Plaintiff to file another Motion within fourteen (14) days of the Court’s
Order. (Doc. 4.) In response, Plaintiff filed two Motions for Leave to Proceed in Forma
Pauperis. (Docs. 5, 6.)

In her Complaint, Plaintiff asserts she entered into a loan repayment and security
agreement with Defendant Accredited Home Lenders in the amount of $247,500.00 on
September 26, 2006, for real property located in Jesup, Georgia, by virtue of a power of sale
contained in a security deed from Plaintiff to Mortgage Registration System. (Doc. 1, p. 4.)
Plaintiff contends this security deed was last “sold, assigned and transferred to” Defendant
Deutsche Bank Trust Company as trustee for Morgan Stanley Home Equity Loan Trust 2007-1.
(Id.) Plaintiff contends “the defendant” acted in “an unfair, deceptive, and fraudulent manner”
during the loan origination process and “imposed unfair and abusive loan terms” on her. (Id.)
Additionally, Plaintiff contends Mortgage Registration System is a robo-signer with no firsthand
knowledge of the contents of the assignment to Defendant Accredited Home Lenders. Plaintiff
maintains Defendants Accredited Home Lenders and Deutsche Bank falsified information
regarding Plaintiff’s income in order to qualify Plaintiff for this loan, even though all of the
financial records she submitted revealed the loan was too high for Plaintiff to pay. Plaintiff avers
she has contacted Defendant Deutsche Bank over the past several years, but Defendant Deutsche
Bank has “refused to help correct this fraudulent loan.” (Id. at p. 5.) Instead, Plaintiff contends
Defendants Select Portfolio Servicing and Deutsche Bank have continued to assess payments,
fees, interest, and penalties against her.
Plaintiff also alleges Defendant Deutsche Bank’s refusal to assist her is a violation of the
Home Affordable Modification Program (“HAMP”), the purpose of which is to assist
homeowners, such as Plaintiff, who are in default on their mortgages and at risk of default to
avoid foreclosure. Plaintiff also alleges Defendant Deutsche Bank has made no effort to mitigate
against its losses resulting from her default. Accordingly, Plaintiff asserts Defendant Deutsche
Bank should be enjoined from pursuing foreclosure or authorizing another entity to pursue

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foreclosure proceedings against her. (Id. at p. 6.) Plaintiff also requests that Defendant Deutsche
Bank be enjoined from naming a substitute trustee. Plaintiff seeks summary judgment in her
favor and damages in the amount of $400,000.00 for the pain and suffering Defendant Deutsche
Bank has caused her.
STANDARD OF REVIEW
Under 28 U.S.C. § 1915(a)(1), the Court may authorize the filing of a civil lawsuit
without the prepayment of fees if the plaintiff submits an affidavit that includes a statement of all
of his assets and shows an inability to pay the filing fee and also includes a statement of the
nature of the action which shows that he is entitled to redress. Even if the plaintiff proves
indigence, the Court must dismiss the action if it is frivolous or malicious, or fails to state a claim
upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i)–(ii); Grayson v. Mayview State
Hosp., 293 F.3d 103, 113 n.19 (3d Cir. 2002) (non-prisoner indigent plaintiffs are “clearly within
the scope of § 1915(e)(2)”); Dutta-Roy v. Fain, No. 1:14-CV-280-TWT, 2014 WL 1795205,
at *2 (N.D. Ga. May 5, 2014) (frivolity review of indigent non-prisoner plaintiff’s complaint).
When reviewing a Complaint on an application to proceed in forma pauperis, the Court is
guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .
a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).

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Section 1915 also “accords judges not only the authority to dismiss a claim based on an
indisputably meritless legal theory, but also the unusual power to pierce the veil of the
complaint’s factual allegations and dismiss those claims whose factual contentions are clearly
baseless.” Bilal, 251 F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by the
same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6).
Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that standard, this Court
must determine whether the complaint contains “sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must assert “more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will
not” suffice. Twombly, 550 U.S. at 555.
In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350
F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse
mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We
have never suggested that procedural rules in ordinary civil litigation should be interpreted so as
to excuse mistakes by those who proceed without counsel.”).

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DISCUSSION
I.

Whether Plaintiff can Pursue a Cause of Action Pursuant to HAMP
Congress authorized HAMP as part of the Emergency Economic Stabilization Act of

2008, (“EESA”) see 12 U.S.C. § 5219a(a), which has the stated purpose of giving the Secretary
of the Treasury the “authority and facilities” necessary “to restore liquidity and stability to the
financial system of the United States[.]” 12 U.S.C. § 5201(1). The EESA “was not passed for
the ‘especial benefit’ of struggling homeowners, even though they may benefit from HAMP’s
incentives to loan servicers.” Miller v. Chase Home Fin., LLC, 677 F.3d 1113, 1116 (11th Cir.
2012). Under the EESA, the Secretary is charged with, inter alia, acting in a manner that
“preserves homeownership and promotes jobs and economic growth[.]” 12 U.S.C. § 5201(2)(B).
The Act provides for: oversight of the Secretary’s actions by a “Financial Stability Oversight
Board[;]” oversight of the Troubled Assets Relief Program 1 (“TARP”) by the Comptroller
General of the United States; and judicial review of the Secretary’s actions, which are reviewable
as a “final agency action for which there is no other adequate remedy in a court[.]” 5 U.S.C.
§ 704; 12 U.S.C. §§5214, 5226, & 5229(a)(1).
The Eleventh Circuit Court of Appeals has determined that HAMP does not provide for
or create an express or implied private right of action against loan servicers. Nelson v. Bank of
Am., N.A., 446 F. App’x 158, 159 (11th Cir. 2011) (“[N]othing express or implied in HAMP
gives borrowers a private right of action.”). The Eleventh Circuit noted “there is no discernible
legislative intent to create a private right of action[,]” as Congress “gave the Secretary the right
to initiate a cause of action, via the Administrative Procedures Act.” Miller, 677 F.3d at 1116
(citing 12 U.S.C. § 5229(a)(1)). Additionally, the Eleventh Circuit noted that “providing a
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“Troubled assets” means “residential or commercial mortgages” that were “originated or issued on or
before March 14, 2008, the purchase of which the Secretary determines promoted financial market
stability[.]” 12 U.S.C. § 5202(9)(A).
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private right of action against mortgage servicers contravenes the purpose of HAMP—to
encourage servicers to modify loans—because it would likely chill servicer participation based
on fear of exposure to litigation.” Id. The Eleventh Circuit concluded that such actions of
“‘[c]ontract and real property law are traditionally the domain of state law.’” Id. (alteration in
original) (quoting Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 174 (1982)).
The only HAMP-related claim Plaintiff sets forth in her Complaint is that Defendant
Deutsche Bank violated HAMP by refusing to assist her. (Doc. 1, pp. 5–6.) However, Plaintiff
makes no assertion that she sought assistance through this program or that Defendant Deutsche
Bank was under any obligation to provide assistance to her. See 12 U.S.C. §§ 5219a, 5219b(b),
& 5226(2)(D) (implying that loan servicers’ participation in HAMP is voluntary). Even if
Defendant Deutsche Bank had an obligation to assist Plaintiff under HAMP, however, it is clear
this Program does not provide for a private cause of action. Accordingly, the Court should
DISMISS Plaintiff’s putative claims against Defendant Deutsche Bank under HAMP.
The Court must now determine whether Plaintiff sets forth viable claims under Georgia
law.
II.

Whether Plaintiff can Pursue her Fraud Claims
Plaintiff alleges Defendants Accredited Home Lenders and Deutsche Bank fraudulently

issued a mortgage to her in 2006, despite knowledge that she could not afford to make the
mortgage payments. (Doc. 1, p. 3.) Plaintiff filed her Complaint in 2017.
Under Georgia law, the statute of limitations for fraud claims is four years. O.C.G.A.
§ 9-3-31. The “true test to determine when the cause of action accrued is to ascertain the time
when the plaintiff could first have maintained his action to a successful result.” Behning v. BAC
Home Loans Servicing L.P., No. 1:15-CV-04242-AT-RGV, 2016 WL 5339593, at *7 (N.D. Ga.

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June 13, 2016), report and recommendation adopted in part, rejected in part, No. 1:15-CV4242-AT, 2016 WL 5340549 (N.D. Ga. July 26, 2016) (citations and internal punctuation
omitted). “In short, the statute of limitations begins to run when the plaintiff’s cause of action
becomes legally cognizable[.]” Id. (citation omitted). “Although claims of fraud generally have
a four-year statute of limitations, the period of limitation may be tolled.” Stone v. Bank of N.Y.
Mellon, N.A., No. CIV.A. 1:11-CV-00081, 2014 WL 61480, at *9 (N.D. Ga. Jan. 8, 2014)
(citing Anthony v. Am. Gen. Fin. Servs., Inc., 287 Ga. 448 (Ga. 2010) (citing O.C.G.A. § 9-331)). To establish fraud and to toll the statute of limitations, a plaintiff must prove that: “(1) the
defendant committed actual fraud; (2) the fraud concealed the cause of action from the plaintiff;
and (3) the plaintiff exercised reasonable diligence to discover his cause of action despite his
failure to do so within the statute of limitation.”

Id. (citing Daniel v. Amicalola Elec.

Membership Corp., 289 Ga. 437 (Ga. 2011)). For such a claim, the statute of limitations runs
“only from the time of the plaintiff’s discovery of the fraud.” O.C.G.A. § 9-3-96.
Plaintiff states that Defendants Accredited Home Lenders and Deutsche Bank committed
fraud in 2006 by falsifying her income to qualify her for a loan these Defendants knew she could
not afford. The plain face of Plaintiff’s Complaint reveals that this alleged fraud was not
concealed from Plaintiff, and she could have discovered any defects in the documents she signed
well before the statute of limitations expired in 2010. 2 Thus, the date Plaintiff signed the
security deed and promissory note is the date when the statute of limitations period began to run.
For Plaintiff’s claims of fraud to have been timely, she would have had to file suit no later than
November 2010. Because Plaintiff did not file her Complaint until March 2017, her fraud claims

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In fact, Plaintiff asserts that her mortgage loan was “set up for default (failure) by the lender at the time
of the origination and the lender was complicit.” (Doc. 1, p. 4 (emphasis supplied).)
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were filed more than six years too late. Accordingly, the Court should DISMISS Plaintiff’s
fraud claims.
III.

Whether This Court can Provide Injunctive Relief
“The district courts shall have original jurisdiction of all civil actions where the matter in

controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between”
“citizens of different States.” 28 U.S.C. § 1332(a)(1). “However, federal courts are courts of
limited jurisdiction. They possess only that power authorized by Constitution and statute, which
is not to be expanded by judicial decree[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994) (internal citations omitted). “It is to be presumed that a cause lies outside
this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting
jurisdiction.” Id.
At first blush, it appears that Plaintiff’s desire to recover $400,000.00 in monetary
damages satisfies the amount in controversy requirement of Section 1332 and that the parties
have diversity of citizenship. However, even if this Court had jurisdiction to address the merits
of this case, it should abstain from doing so under the Younger abstention rule. Younger v.
Harris, 401 U.S. 37 (1971); 31 Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir. 2003)
(“Although Younger concerned state criminal proceedings, its principles are ‘fully applicable to
noncriminal judicial proceedings when important state interests are involved.’”). The Younger
abstention doctrine reflects “a strong federal policy against federal[ ] court interference with
pending state judicial proceedings absent extraordinary circumstances.” Middlesex Cty. Ethics
Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982). “This ‘settled law,’ intended to
preserve the independence of our concurrent judicial systems, requires ‘sensitive consideration of
ongoing proceedings in state courts’ and ‘that a federal court “tread lightly” when a state

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proceeding is already underway.’” Stephens v. Sluss, No. CV407-089, 2007 WL 2106225, at
*2–3 (S.D. Ga. Aug. 15, 2007) (quoting The News-Journal Corp. v. Foxman, 939 F.2d 1499,
1508 (11th Cir. 1991) (quoting Blalock v. United States, 844 F.2d 1546, 1549 (11th Cir. 1988));
see Adams v. Florida, 185 F. App’x 816, 817 (11th Cir. 2006) (affirming the dismissal of a 42
U.S.C. § 1983 complaint seeking to enjoin a civil contempt finding in child support enforcement
case under the Younger doctrine).
Where “vital state interests” are involved, a federal court should abstain from hearing a
case “unless state law clearly bars the interposition of the constitutional claim.” Middlesex Cty.,
457 U.S. at 432 (quoting Moore v. Sims, 442 U.S. 415, 426 (1979)). To determine whether
Younger requires abstention in a given case, a federal court must ask three questions: “first, do
the proceedings constitute an ongoing state judicial proceeding; second, do the proceedings
implicate important state interests; and third, is there an adequate opportunity in the state
proceedings to raise constitutional challenges.” 31 Foster Children, 329 F.3d at 1274 (quoting
Middlesex Cty., 457 U.S. at 432). If the answer to all three questions is “yes,” then a federal
court must abstain from hearing a case in order to avoid interfering with the ongoing state-court
proceedings.
It is unclear whether any Defendant has instituted foreclosure proceedings against
Plaintiff in a Georgia court. However, regardless of whether foreclosure proceedings have been
instituted against Plaintiff, “disputes over real property and disputes involving predatory
practices against lay consumers implicate important state interests.” Strickland v. Georgia, No.
1:13-CV-2188-RWS, 2014 WL 988869, at *2 (N.D. Ga. Mar. 12, 2014) (citing BFP v.
Resolution Trust Corp., 511 U.S. 531, 565 (1994) (“[S]tability of title in real property may be
said to be an ‘important’ state interest[.]”), and (Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447,

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460–62 (1978) (“[T]he State has a legitimate and indeed ‘compelling’ interest in preventing
those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching, and
other forms of ‘vexatious conduct[.]’”)). Additionally, Plaintiff may raise her constitutional
concerns before the Georgia Court of Appeals upon final determination of any state court action.
Id. Consequently, abstention would be proper in this case. Moreover, Plaintiff has failed to state
a timely viable cause of action that would support her request for injunctive relief. For all of
these reasons, the Court should DISMISS Plaintiff’s claims for injunctive relief.
IV.

Whether Plaintiff States a Claim Against Bank of America
The Court is mindful of its duty to view pro se pleadings liberally. However, Plaintiff’s

status as a pro se litigant cannot excuse her failure to abide by simple pleading requirements, i.e.,
Plaintiff must at least make factual allegations against a named Defendant. See Fed. R. Civ. P. 8.
Moreover, “a pleading must contain enough facts that a reasonable expectation exists that
discovery will reveal evidence of the necessary elements, and it is sufficient that the complaint
identifies facts that are suggestive enough to render the necessary elements plausible.” Gonzalez
v. Asset Acceptance, LLC, 308 F. App’x 429, 430 (11th Cir. 2009) (citing Watts v. Fla. Int’l
Univ., 495 F.3d 1289, 1295–96 (11th Cir. 2007)). While Plaintiff names Bank of America as a
Defendant in this case, she fails to make any factual allegations against this entity. Accordingly,
the Court should DISMISS Plaintiff’s claims against Defendant Bank of America for her failure
to state a claim upon which relief may be granted. 3

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Plaintiff’s request for the entry of summary judgment in her favor is premature and moot. Defendants
have not been served with a copy of Plaintiff’s Complaint. Thus, no discovery has been or will be had.
“The law of this circuit is clear: the party opposing a motion for summary judgment should be permitted
an adequate opportunity to complete discovery prior to consideration of the motion.” Jones v. City of
Columbus, 120 F.3d 248, 254 (11th Cir. 1997). Further, if the Court adopts this Report and
Recommendation as the opinion of the Court, then Plaintiff’s Complaint will be dismissed in its entirety.
Consequently, the Court should DISMISS Plaintiff’s request as both premature and moot.

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V.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 4

Though

Plaintiff has, of course, not yet filed a notice of appeal, it would be appropriate to address these
issues in the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that
appeal is not taken in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Or, stated another way, an in forma pauperis action
is frivolous and, thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Plaintiff’s action, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Thus, the Court should DENY
Plaintiff in forma pauperis status on appeal.

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A certificate of appealability is not required in this civil action.
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CONCLUSION
For the reasons set forth above, the Court DENIES Plaintiff’s Motions for Leave to
Proceed in Forma Pauperis, (docs. 2, 5, 6). For these same reasons, I RECOMMEND that the
Court DISMISS Plaintiff’s Complaint, DIRECT the Clerk of Court to CLOSE this case, and
DENY Plaintiff leave to appeal in forma pauperis.
The Court ORDERS any party seeking to object to this Report and Recommendation is
to file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge.

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The Court DIRECTS the Clerk of Court to serve a copy of this Report and
Recommendation upon the Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 19th day of June,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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