Dubar v. Ditech Financial LLC et al

Filing 22

ORDER granting 16 Motion to Dismiss for Failure to State a Claim and Motion to Dismiss for Lack of Jurisdiction. Signed by Senior Judge W. Earl Britt on 9/22/2017. Copy sent to Marian Dubar, 24214 Andrew Jackson Hwy E, Bolton, NC 28423 via US Mail. (Edwards, S.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO: 7:17-CV-00058-BR
MARIAN DUBAR,
Plaintiff,

v.
DITECH FINANCIAL LLC f/k/a
GREEN TREE SERVICING; and
NODELL, GLASS & HASKELL LLP,
Defendants.

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ORDER

This matter is before the court on Ditech Financial LLC’s (“defendant”) motion to
dismiss this action based on lack of subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1) and for failure to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6). (DE # 16.) Plaintiff has filed a response in opposition to the motion. (DE # 19.)
Defendant has not filed a reply, and the time within which to do so has expired.
Plaintiff’s complaint, (DE # 7), appears to be related to a foreclosure proceeding
regarding property formerly owned by plaintiff’s father, and perhaps now owned by plaintiff.
According to documents filed in the foreclosure proceeding, the amount owed on a mortgage of
the property was $53,489.28 as of 13 April 2014. (DE # 19, Ex. K.) On 16 March 2017,
defendant Nodell, Glass & Haskell LLP, on behalf of defendant, provided documentation to
plaintiff indicating the payoff amount was $67,866.32. (DE # 7-1.)
Plaintiff, a pro se litigant, alleges that the payoff amount provided in March 2017 is
incorrect. (See Compl., at 4.) At a foreclosing proceeding on 14 September 2016, she claims

that she was provided a payoff total between $42,250 and $56,000 and secured a loan based on
that information. (Id.) She asserts, “At this time, all action should cease and desist until we can
obtain accurate figures with documentation with full explanation . . . .” (Id.)
In her response to defendant’s motion to dismiss, she claims that defendants conspired to
initiate a wrongful foreclosure proceeding. (DE # 19, at 1.) She alleges that they used a
counterfeit mortgage instrument to obtain a default judgment on the property, an action which
she says violates criminal statute 18 U.S.C. § 474. (Id. at 2.)
The court considers defendant’s challenge this court’s subject matter jurisdiction.
Pursuant to 28 U.S.C. § 1331, a federal court possesses original jurisdiction over a civil action
arising under federal law. Cases arise under federal law “‘when federal law creates the cause of
action asserted,’” or when a “state-law claim [has] a ‘federal issue’ [that] is ‘(1) necessarily
raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without
disrupting the federal-state balance approved by Congress.’” Commonwealth of Virginia ex rel.
Hunter Labs., L.L.C. v. Commonwealth, 828 F.3d 281, 287 (4th Cir. 2016) (quoting Gunn v.
Minton, 568 U.S. 251, 257–58 (2013)). This court also possesses original jurisdiction pursuant
to 28 U.S.C. § 1332(a) if the civil action has an amount in controversy exceeding $75,000,
exclusive of interest and costs, and is between citizens of different states. “In order to establish
diversity jurisdiction, the parties must be completely diverse; none of the plaintiffs may share
citizenship with any of the defendants.” Owens-Illinois, Inc. v. Meade, 186 F.3d 435, 440 (4th
Cir. 1999). The burden of proving subject matter jurisdiction in response to a Rule 12(b)(1)
motion to dismiss is on the plaintiff, the party asserting jurisdiction. Williams v. United States,
50 F.3d 299, 304 (4th Cir. 1995).

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This court lacks federal question jurisdiction over plaintiff’s claims. In her complaint,
plaintiff asserts that this court has federal question jurisdiction. (DE # 7, at 3.) However,
plaintiff did not provide any statutory basis or other explanation for this assertion. (See id.)
Later, in her response to the motion to dismiss, plaintiff alleges that defendants violated a federal
statute, 18 U.S.C. § 474. However, that statute is a criminal statute. Consequently, the statute is
inapplicable to this civil action and does not provide a ground for invoking subject matter
jurisdiction. See, e.g., Sanderlin v. Hutchens, Senter & Britton, P.A., 783 F. Supp. 2d 798, 801
n.1 (W.D.N.C. 2011) (determining that 18 U.S.C. § 474 was “insufficient to invoke subject
matter jurisdiction” in a civil action disputing a foreclosure); Vogler v. Countrywide Home
Loans, Inc., No. 1:10CV370, 2010 WL 3394034, at *9 (M.D.N.C. Aug. 26, 2010) (memorandum
and recommendation) (finding 18 U.S.C. § 474 “completely irrelevant” to plaintiff’s foreclosure
dispute and dismissing the claim), adopted (M.D.N.C. Sept. 29, 2010). Further, the payoff
amount dispute, if anything, is a state-law foreclosure dispute, and generally “federal courts do
not interfere in state court foreclosure proceedings.” Houey v. Carolina First Bank, 890 F. Supp.
2d 611, 620 (W.D.N.C. 2012); see also Arnold v. Waterfield Mortg. Co., 966 F. Supp. 387, 389
(D. Md. 1996) (“[T]his Court should refrain from interfering in a state foreclosure proceeding.”),
aff'd, 116 F.3d 472 (4th Cir. 1997). Plaintiff’s complaint does not raise sufficient federal issues,
so federal question jurisdiction is not triggered.
Plaintiff’s complaint also does not invoke diversity jurisdiction. Plaintiff states in her
complaint that she is a North Carolina resident. (DE # 7, at 3.) However, the complaint also
states that defendant Nodell, Glass & Haskell LLP is located in Raleigh, North Carolina. (Id. at
2.) Thus, the parties to this action share citizenship and fail to meet the requirements for
diversity jurisdiction. Therefore, plaintiff does not satisfy her to burden of proving subject

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matter jurisdiction. Due to this conclusion, the court does not reach the issue of whether plaintiff
has failed to state a claim under Rule 12(b)(6).
Accordingly, defendant’s motion to dismiss is GRANTED, and this case is DISMISSED
WITHOUT PREJUDICE.
This 22 September 2017.

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W. Earl Britt
Senior U.S. District Judge

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