Peraino, et al v. Ocwen Loan Servicing, LLC, et al

Filing 28

ORDER granting 8 Motion to Dismiss for Failure to State a Claim and granting 14 Motion to Dismiss for Failure to State a Claim. Signed by US District Judge Terrence W. Boyle on 9/22/2018. Copy sent via US Mail to Guy Peraino and Anna Colbert at 12520 Capital Blvd. 401-145, Wake Forest, NC 27587. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:17-CV-622-BO
GUY PERAINO & ANNA COLBERT,
Plaintiffs,
v.

OCWEN LOAN SERVICING, LLC et al.,
Defendant.

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ORDER

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This matter comes before the Court on defendants' motions to dismiss. [DE 8, 14]. The
motions have been fully briefed and are ripe for disposition. For the reasons discussed below,
defendants' motions to dismiss are GRANTED.
BACKGROUND
In May 2007, plaintiffs executed a deed of trust which was subsequently recorded in the
Public Registry of Wake County, North Carolina. [DE 1-1]. In November 2017, the Clerk of the
Superior Court of Wake County entered an order permitting foreclosure on plaintiffs' deed of
trust. Id.

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10. That same day, the Clerk set a foreclosure sale for plaintiffs' encumbered

property for November 27, 2017. Id.

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11.

On November 15, 2017, plaintiffs, proceedingpro se, filed the present complaint,
alleging, among other things, invasion of property interests, trespass, and trademark
infringement. Id.

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4-6. Defendants removed the case to this Court on December 15, 2017.

[DE 1]. Defendants Ocwen Loan Servicing, LLC and Deutsche Bank National Trust Company
moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on

December 20, 2017. [DE 8]. Defendant Satterfield Legal, PLLC moved to dismiss on January 8,
2018. [DE 14].
DISCUSSION
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
"the court should accept as true all well-pleaded allegations and shpuld view the complaint in a
light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.
1993). A complaint must state a claim for relief that is facially plausible. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007). Facial plausibility means that the court can "draw the
reasonable inference that the defendant is liable for the misconduct alleged," as merely reciting
the elements of a cause of action with the support of conclusory statements does not suffice.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court need not accept the plaintiffs legal
conclusions drawn from the facts, nor need it accept unwarranted inferences, unreasonable
conclusions, or arguments. Philips v. Pitt County Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Plaintiffs' complaint is disjointed and difficult to follow. Lacking a "short and plain
statement" of plaintiffs' claim, as required by Federal Rule of Civil Procedure 8(a)(2), the Court
construes plaintiffs' complaint as an attempt to challenge the foreclosure proceedings in Wake
County Superior Court. Plaintiffs are not permitted to file separate suits challenging foreclosure
proceedings and judgments. Douglas v. Pennamco, Inc., 75 N.C. App. 644, 646 (1985). As a
matter of law, plaintiffs cannot state a foreclosure-related claim, and have not plausibly alleged
any other claims.
For these reasons, the Court finds that plaintiffs have failed to allege facts necessary to
sustain any actions under state or federal law.

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CONCLUSION
For the above reasons, defendants' motions to dismiss [DE 8, 14] are GRANTED. The
case is DISMISSED with prejudice for failure to state a claim upon which relief can be granted.

SO ORDERED, this llday of September, 2018.

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