Asamoah v. Wells Fargo Bank et al

Filing 6

Judge William G. Young: ORDER entered denying 4 Motion waiver of fees and service by certified mail; denying 2 Motion for Leave to Proceed in forma pauperis; denying 3 Motion to Appoint Counsel. If Asamoah wishes to pursue this action, he must, within 42 days of the date of this order, show cause in writing (through the submission of an amended complaint or legal memorandum) why this action should not be dismissed for lack of subject matter jurisdiction. Failure to comply with this directive will result in dismissal of this action. (PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
HUGO ASAMOAH,
Plaintiff,
v.
WELLS FARGO BANK, et al.,
Defendant.

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CIVIL ACTION
NO. 14-10322-WGY

MEMORANDUM AND ORDER
YOUNG, D.J.

June 19, 2014

For the reasons set forth below, the Court grants the
plaintiff’s motion for leave to proceed in forma pauperis and
directs the plaintiff to show cause why this action should not be
dismissed for lack of subject matter jurisdiction.
I.

Background
State inmate Hugo Asamoah brings this action in which he

claims that Wells Fargo Bank and foreclosure attorneys violated
state and federal law by foreclosing on his property.

According

to the complaint, the plaintiff requested a loan modification and
was told by Wells Fargo Bank (“Wells Fargo”) that he would be
eligible if he paid an increased payment for three months.
Asamoah alleges that he made such payments in a timely fashion
but thereafter Wells Fargo increased, rather decreased, his
monthly payment.

The plaintiff further alleges that, when the

plaintiff became incarcerated in 2009, Harmon & Harmon Law Group
(“Harmon & Harmon”), evicted his tenants, making it impossible
for him to pay the mortgage.

Thereafter, Wells Fargo allegedly

foreclosed on his home without any notice to him.
Asmoah names as defendants Wells Fargo, Harmon & Harmon, and
“other John Doe Defendants.”

He alleges that Wells Fargo

violated the Fair Debt Collection Practices Act, 15
U.S.C. §§ 1692-1692p ("FDCPA") and the Home Owners Loan Act, 12
U.S.C. §§ 1461-1470 (“HOLA”), and state law by refusing to enter
into a loan modification agreement with the plaintiff.

Asmoah

also brings a claim against Wells Fargo and Harmon and Harmon
“acting jointly” for violating, FDCPA, HOLA, and state law.

The

complaint also includes a separate claim against Harmon & Harmon
for “negligent misrepresentation.”
II.

Discussion
A.

Motion for Leave to Proceed In Forma Pauperis

Upon review of the plaintiff’s motion for leave to proceed
in forma pauperis, the Court concludes that he is without income
or assets to pay the filing fee.

The motion is therefore

granted. Pursuant to 28 U.S.C. § 1915(b)(1), an initial partial
filing fee of $18.00 is assessed.

The remainder of the fee,

$332.00, will be collected in accordance with 28 U.S.C.
1915(b)(2).
B.

Screening of the Complaint
1.

Court’s Authority to Screen the Complaint

When a plaintiff seeks to file a complaint without
prepayment of the filing fee, summonses do not issue until the
Court reviews the complaint and determines that it satisfies the
substantive requirements of 28 U.S.C. § 1915.
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This statue

authorizes federal courts to dismiss a complaint sua sponte if
the claims therein are frivolous, malicious, fail to state a
claim on which relief may be granted, or seek monetary relief
against a defendant who is immune from such relief.
U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b).

See 28

In conducting this

review, the Court liberally construes the complaint because the
plaintiff is proceeding pro se.
519, 520-21 (1972).

See Haines v. Kerner, 404 U.S.

However, the plaintiff’s obligation to

provide the grounds of his claim “requires more than labels and
conclusions.”
(2007).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

A court is not “bound to accept as true a legal

conclusion couched as a factual allegation,” and “[f]actual
allegations must be enough to raise a right to relief above the
speculative level.”

Id. (quoting in part Papasan v. Allain, 478

U.S. 265, 286 (1986)); see also Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“Threadbare recitals of a cause action, supported by
mere conclusory statements, do not suffice.”).
Further, a court has an obligation to inquire sua sponte
into its own subject matter jurisdiction.
Velez, 364 F.3d 1, 5 (1st Cir. 2004).

See McCulloch v.

Federal courts are of

limited jurisdiction, “and the requirement of subject-matter
jurisdiction ‘functions as a

restriction on federal power.’”

Fafel v. Dipaola, 399 F.3d 403, 410 (1st Cir. 2005) (quoting
Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee,
456 U.S. 694, 702 (1982)).

“The existence of subject-matter

jurisdiction ‘is never presumed.’” Fafel, 399 F.3d at 410
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(quoting Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir.
1998)).

Rather, federal courts “must satisfy themselves that

subject-matter jurisdiction has been established.”

Id.

“If the

court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.” Fed. R. Civ. P.
12(h)(3).
Federal district courts may exercise jurisdiction over civil
actions arising under federal laws, see 28 U.S.C. § 1331
(“§ 1331”), and over certain actions in which the parties are of
diverse citizenship and the amount in controversy exceeds
$75,000, see 28 U.S.C. § 1332 (“§ 1332”).

Where a party seeks to

invoke the jurisdiction of a federal district court under § 1332,
the parties must be of complete diversity.
v. Lewis, 519 U.S. 61, 68 (1996).

See Caterpillar Inc.

Complete diversity does not

exist where any defendant and any plaintiff are citizens of the
same state.
2.

See id.
Lack of Subject Matter Jurisdiction
a.

Federal Question Subject Matter Jurisdiction

Here, federal question subject matter jurisdiction does not
exist under § 1331 because Asamoah has not stated a claim under
federal law.

Although the plaintiff has invoked FDCPA and HOLA,

no claim exists under these statutes under the facts alleged.
The FDCPA prohibits certain conduct by “debt collectors.”
However, FDCPA’s definition of a debt collector excludes “any
person collecting or attempting to collect any debt owed or

due

another to the extent such activity . . . concerns a debt which
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was originated by such person . . . or concerns a debt which was
not in default at the time it was obtained by such person.”
U.S.C. § 1692a(6)(F).1

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Nothing in the complaint suggests that

Wells Fargo is a “debt collector” within the meaning of the
statute; it was collecting its own debt.

See 15 U.S.C.

§ 1692a(6); Montgomery v. Wells Fargo Bank, N.A., 459 Fed. Appx.
424, 428 n.1 (5th Cir. 2012); Brush v. Wells Fargo Bank, N.A.,
911 F. Supp. 2d 445, 477-78 (S.D. Tex. 2012); Burns v. Bank of
America, 655 F. Supp. 2d 240, 254 (S.D.N.Y. 2008).
In regards to Harmon & Harmon Law Group, even if the Court
were to assume that the law firm was a “debt collector” within
the meaning of the FDCPA, the plaintiff has not alleged facts
from which the Court may reasonably infer that this defendant
violated the statute.

The only factual allegation that Asamoah

made against Harmon & Harmon was that the law firm evicted his
tenants, making it impossible for him to fulfill his loan
agreement payments.

The plaintiff does not explain how this

conduct constituted the unfair collection of a debt.
Further, it appears that any claim under FDCPA would be
time-barred by the statute’s one-year period of limitations.

See

15 U.S.C. § 1692k(d).
Finally, no claim exists under HOLA because the statute does

1

This exclusion does not apply to “any creditor who, in the
process of collecting his own debt, uses any name other than his
own which would indicate that a third person is collecting or
attempting to collect such debts.” 15 U.S.C. § 1962a(6). Under
the facts alleged, this exception does not apply to this case.
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not provide for a private right of action.

See In re Ocwen Loan

Servicing, LLC Mortg. Servicing Litigation, 491 F.3d 638, 643
(7th Cir. 2007); Taylor v. Citizens Fed. Sav. & Loan Ass’n, 846
F.2d 1320 (11th Cir. 1988); Dixon v. Wells Fargo Bank, N.A., 798
F. Supp. 2d 336, 360 (D. Mass. 2011).2
b.

Diversity Subject Matter Jurisdiction

Because the plaintiff and Harmon & Harmon Law Group are
residents of Massachusetts, diversity subject matter jurisdiction
under § 1332 does not exist.
ORDER
Accordingly:
1.

The motion (#2) for leave to proceed in forma pauperis

is GRANTED.

Pursuant to 28 U.S.C. § 1915(b)(1), an initial

partial filing fee of $18.00 is assessed.

The remainder of the

fee, $332.00, will be collected in accordance with 28 U.S.C.
1915(b)(2).

The Clerk shall send a copy of this order to the

treasurer of the institution having custody of the plaintiff.
2.

If Asamoah wishes to pursue this action, he must,

within forty-two (42) days of the date of this order, show cause
in writing (through the submission of an amended complaint or
legal memorandum) why this action should not be dismissed for
2

HOLA does provide for a private right of action to prevent
“tying” arrangements. See 12 U.S.C. § 1464(q)(2), (3). These
are arrangements that “extend credit . . . or furnish any
service . . . on the condition or requirement ... that the
customer obtain [or provide] additional credit, property or
service from such” savings and loan. 12 U.S.C. § 1464(q)(1).
This portion of HOLA is inapplicable to the facts alleged by
Asamoah.
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lack of subject matter jurisdiction.

Failure to comply with this

directive will result in dismissal of this action.
3.

The motion (#3) for appointment of counsel is denied

without prejudice.

If summonses later issue, the plaintiff may

renew his motion after the complaint has been served and the
defendants have responded to the complaint.
4.

The motion (#4) for waiver of fees and costs and for

service by certified mail is denied.

If summonses later issue,

the plaintiff may opt to have service completed by the United
States Marshals Service, with all costs advanced by the United
States.
SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
UNITED STATES DISTRICT JUDGE

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