Deabreu et al v. Novastar Home Morgage, Incorporated et al

Filing 90

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 06/04/2012. (nd, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
LOUIS PIERRE DEABREU, et al.
:
v.

:

Civil Action No. DKC 11-3692

:
NOVASTAR HOME MORTGAGE, INC.,
et al.

:

MEMORANDUM OPINION
Presently pending and ready for resolution in this action
is a motion to dismiss for lack of subject matter jurisdiction
filed by Defendants Wells Fargo Bank, N.A., Timothy J. Solan,
John G. Stumpf, Buonassissi, Henning & Lash, U.S. Bank National
Association, as Trustee for Credit Suisse First Boston, Alex
Coooper Auctioneers, Incorporated, MERS, and Prudential Ridgeway
Realty, Inc.

(ECF No. 39).

The issues are fully briefed and

the court now rules pursuant to Local Rule 105.6, no hearing
being

deemed

necessary.

For

the

reasons

that

follow,

this

motion will be granted.1
I.

Background
Plaintiffs Louis Pierre Deabreu and Renee Lavinia Deabreu

commenced this action, proceeding pro se, in the United States
District Court for the District of Columbia on November 28,
1

A number of other motions are also pending, including
motions to dismiss for failure to state a claim filed by other
defendants.
Because
the
court
lacks
subject
matter
jurisdiction, these motions will be denied as moot.

2011.

The complaint, which largely relates to the foreclosure

of Plaintiffs’ home in Charles County, Maryland, names twentytwo defendants, but contains substantive allegations as to only
one: Defendant Wells Fargo Bank, N.A.2

Concomitantly with the

complaint,

motions

proceed

in

Plaintiffs
forma

separately

pauperis.

filed

The

District

for

of

leave

Columbia

to

court

transferred the case to this district, pursuant to 28 U.S.C. §
1391(b), and Plaintiffs’ motions were granted.

Thereafter, the

United States Marshal effected service of process.
Seventeen
dismiss.

defendants

responded

by

filing

motions

to

Among these was a motion filed by Defendants Wells

Fargo Bank, N.A., Timothy J. Solan, John G. Stumpf, Buonassissi,
Henning & Lash, U.S. Bank National Association, as Trustee for
Credit

Suisse

Incorporated,

First

MERS,

and

Boston,

Alex

Prudential

Coooper

Ridgeway

Auctioneers,

Realty,

Inc.,

to

dismiss the complaint for lack of subject matter jurisdiction.
(ECF No. 39).

Plaintiffs were advised by the clerk that a

potentially dispositive motion had been filed (ECF No. 41) and
they filed opposition papers in response (ECF No. 67).
2

The complaint is far from a model of clarity.
The only
mention of a defendant other than Wells Fargo is a reference to
cases in the District Court of Maryland for Charles County
involving Defendants Navy Federal Credit Union, Silverman
Theologou, LLP, North Star Capital Acquisition, LLC, Pioneer
Credit Recovery, and EMC Mortgage, which Plaintiffs seek to
“enjoin” for unspecified reasons.
(ECF No. 1 ¶ II.b).
These
state cases appear to be garnishment proceedings related to
defaulted student loans. (Id. at ¶ I.f).
2

II.

Analysis
Motions to dismiss for lack of subject matter jurisdiction

are governed by Federal Rule of Civil Procedure 12(b)(1).
plaintiff

bears

the

burden

of

proving

that

subject

jurisdiction properly exists in federal court.
B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).

The

matter

See Evans v.
In deciding

a Rule 12(b)(1) motion, the court “may consider evidence outside
the pleadings” to help determine whether it has jurisdiction
over the case before it.

Richmond, Fredericksburg & Potomac

R.R. Co. v. U.S., 945 F.2d 765, 768 (4th Cir. 1991); see also
Evans, 166 F.3d at 647.

Such a motion should only be granted

“if the material jurisdictional facts are not in dispute and the
moving

party

is

entitled

to

prevail

as

a

matter

of

law.”

Richmond, 945 F.2d at 768.
Plaintiffs have invoked federal question jurisdiction as
the jurisdictional basis of this action.

Pursuant to 28 U.S.C.

§ 1331, “district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties
of the United States.”

Generally, whether any of a plaintiff’s

claims “arise under” federal law is determined by application of
the well-pleaded complaint rule.

Ali v. Giant Food LLC/Stop &

Shop Supermarket Co., LLC, 595 F.Supp.2d 618, 621 (D.Md. 2009)
(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust,
463 U.S. 1 (1983)).

According to the well-pleaded complaint
3

rule, “federal jurisdiction exists only when a federal question
is presented on the face of the plaintiff’s properly pleaded
complaint.”

Caterpillar Inc. v. Williams, 482 U.S. 386, 392

(1987).
In their complaint, Plaintiffs assert that the “court has
jurisdiction, because the Complainants are without relief save
in

a

Court

sustained

of

due

contract[.]”

Special
to

a

Equity

breach

and

of

on

the

fiduciary

(ECF No. 1 ¶ II).

grounds

duty

and

of

injury

breach

of

This statement clearly does not

provide a basis for federal question jurisdiction; rather, it
suggests
law.3

that

Plaintiffs’

claims

arise

under

Maryland

common

Although the civil cover sheet accompanying the complaint

cites a federal statute – 42 U.S.C. § 1983 – the complaint
itself makes no mention of this provision, nor does any named
defendant appear to be a state actor.

See West v. Atkins, 487

U.S. 42, 48 (1988) (“To state a claim under § 1983, a plaintiff
must allege the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of
state

law.”).

Plaintiffs

have

named

the

United

States

Department of Education as a defendant, and district courts have
3

Indeed, at another point in the complaint, Plaintiffs
assert that this is a “counter-claim suit in special equity
jurisdiction . . . in response to the defendant[s’] suit in the
Circuit Court [for] Charles County, Maryland[.]”
(ECF No. 1 ¶
II.a).
4

jurisdiction
government.

over

certain

actions

against

the

federal

See 28 U.S.C. § 1346; 28 U.S.C. § 2671 et seq.

But

where, as here, the complaint contains no factual allegations
relating to the government, it does not support the exercise of
subject matter jurisdiction.

See, e.g., Scarborough v. Carotex

Const., Inc., 420 Fed.Appx. 870, 874 (11th Cir. 2011) (finding no
subject

matter

allegations

jurisdiction

that

the

where

federal

the

complaint

government

.

.

“contains
.

had

no
any

involvement whatsoever” in the case).
Complaints filed by pro se plaintiffs are “to be liberally
construed . . . [and] must be held to less stringent standards
than formal pleadings drafted by lawyers.”

Erickson v. Pardus,

551 U.S. 89, 94 (2007) (internal marks and citations omitted).
Liberal construction does not mean, however, that the court can
ignore a clear failure in pleadings to allege facts which set
forth

a

claim

cognizable

in

a

federal

district

court.

See

Weller v. Department of Social Services, 901 F.2d 387, 391 (4th
Cir. 1990).
While Plaintiffs have failed to allege facts supporting a
federal

cause

of

action,

their

complaint

does

contain

some

language commonly associated with the federal Truth in Lending
Act (“TILA”) and Fair Debt Collection Practices Act (“FDCPA”).
(See ECF No. 1 ¶ I.c (“there was no truth in lending as Wells
Fargo

Bank

and

associated

parties
5

purposely

withheld

and

concealed

pertinent

“are

victims

the

information”);

of

.

.

.

unfair

(Id.

at

debt

¶

I.d

(Plaintiffs

collection

practices

regarding the presumed loan from Wells Fargo Bank”)).

Documents

attached to the complaint, however, make clear that the mortgage
in question was taken out in 2005; that a foreclosure action was
filed in the Circuit Court for Charles County in March 2009; and
that the property was sold at foreclosure on June 17, 2010.

The

statute of limitations for monetary damages arising under TILA
is “one year from the date of the occurrence of the violation.”
15 U.S.C. § 1640(e).
the

borrower

This limitation period begins to run when

accepts

the

creditor’s

extension

of

credit.

Wachtel v. West, 476 F.2d 1062, 1065 (6th Cir. 1973); Grant v.
Shapiro & Burson, LLP, Civil Action No. DKC 11-1724, 2012 WL
1632867, at *6 (D.Md. May 8, 2012).

Similarly, under the FDCPA,

“[a]n action to enforce any liability . . . may be brought . . .
within one year from the date on which the violation occurs.”
15 U.S.C. § 1692k(d).

Generally, the statute of limitations for

a claim under the FDCPA “begins to run when a communication
violating the FDCPA is sent.”
----,

2012

Akalwadi
(D.Md.

WL

v.

2004)

1655716,

Risk

Mgmt.

(internal

at

Stewart v. Bierman, --- F.Supp.2d
*4

(D.Md.

Alts.,
marks

Inc.,

May
336

omitted)).

8,

2012)

F.Supp.2d
Plaintiffs

(quoting
492,

501

did

not

commence the instant action until well over one year after the
latest possible date that a violation under either of these
6

federal statutes could have occurred.

Thus, insofar as they may

have intended to assert causes of action under TILA or FDCPA,
such claims would have been time-barred.
Because

Plaintiffs

may

not

rely

on

federal

question

jurisdiction as the basis of this action, the question remains
as

to

whether

diversity

of

the

requirements

1332(a)(1),

citizenship
“[t]he

jurisdiction

of

are

met.

district

all

for

jurisdiction

Pursuant

courts

civil

actions

to

shall

28

have

where

based

the

on

U.S.C.

§

original
matter

in

controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between . . . citizens of different
States[.]”

Assuming the amount in controversy requirement is

satisfied,

as

Plaintiffs

complaint

clearly

claim

reflects

damages

that

of

$46,610,221,

Plaintiffs

and

defendants are citizens of the State of Maryland.
parties

are

not

diverse,

the

jurisdiction are not satisfied.

requirements

the

multiple

Because the

for

diversity

Accordingly, the complaint must

be dismissed.
III. Conclusion
For the foregoing reasons, the motion to dismiss for lack
of subject matter jurisdiction filed by Defendants Wells Fargo
Bank,

N.A.,

Timothy

J.

Solan,

John

G.

Stumpf,

Buonassissi,

Henning & Lash, U.S. Bank National Association, as Trustee for
Credit

Suisse

First

Boston,
7

Alex

Coooper

Auctioneers,

Incorporated, MERS, and Prudential Ridgeway Realty, Inc., will
be granted.

All other pending motions will be denied as moot.

A separate order will follow.

________/s/_________________
DEBORAH K. CHASANOW
United States District Judge

8