CitiMortgage, Inc. et al v. Thames

Filing 17

ORDER GRANTING 11 Plaintiffs' Motion to Dismiss. Signed by US District Judge Terrence W. Boyle on 2/6/2015. Copy mailed to pro se defendant, via US Mail, to 104 Marlene Drive, Jacksonville, NC, 28546. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:14-CV-146-BO
CITIMORTGAGE, INC. and DOES 1 TO 50,
Plaintiffs,
V.

JOSEPH R. THAMES,
Defendant.

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ORDER

This matter is before the Court on plaintiffs motion for to dismiss this action without
prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. Defendant removed
the case to this Court on July 7, 2014. [DE 1]. The action arises out of a foreclosure action in
North Carolina Superior Court on a deed of trust securing repayment of a promissory note for
which defendant was listed as the borrower and plaintiff was listed as the holder. Prior to the
foreclosure hearing before the Onslow County Clerk of Superior Court, the parties entered into a
loan modification agreement which was signed by Mr. Thames on September 29, 2014, and by
Citimortgage on October 13, 2014. [DE 11-3]. The foreclosure proceeding was voluntarily
dismissed in state court on October 16,2014. [DE 11-4]. Plaintiff now argues that dismissal is
appropriate because, inter alia, the case has been rendered moot by virtue of the loan
modification agreement.
"A plaintiffs motion under Rule 41(a)(2) for dismissal without prejudice should not be
denied absent substantial prejudice to the defendant." Andes v. Versant Corp., 788 F.2d 1033,
1036 (4th Cir. 1986). In evaluating motions for voluntary dismissal without prejudice, a district
court considers: (1) the opposing party's effort and expense in preparing for trial; (2) excessive
delay or lack of diligence on the part of the movant; (3) insufficient explanation of the need for a

dismissal; and (4) the present stage ofthe litigation. Gross v. Spies, 133 F.3d 914, 1998 WL
8006, at *5 (4th Cir. Jan. 13, 1998). These factors are not exclusive, however, and any other
relevant factors should be considered depending on the circumstances of the case. Jd
Here, the Court finds that dismissal without prejudice is appropriate. This action was
commenced as a foreclosure proceeding before the Clerk of Superior Court of North Carolina.
No answer is permitted, N.C. Gen Stat. §45-21.16, and accordingly defendant has no claims or
counterclaims pending, nor has either party put forth considerable effort or expense in preparing
for a trial. The parties have signed a loan modification that resolves the default and moots the
basis for seeking foreclosure. [DE 11-3]. Plaintiffpromptly filed the instant motion to dismiss
the day the loan modification agreement was executed. No claims are pending arising from the
acceptance of the loan modification agreement or the terms thereof. Although defendant appears
to be unhappy with plaintiffs actions, defendant's arguments in opposition to dismissal are
unrelated to the claims at issue in this case.
Accordingly, the Court finds no substantial prejudice to defendant and thus GRANTS
plaintiffs motion to dismiss this action without prejudice. [DE 11]. The clerk is DIRECTED to
enter judgment accordingly.
SO ORDERED, this

__i__ day of February, 2015.

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TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE

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