FULLMORE v. COUNTRYWIDE HOME LOANS, INC.

Filing 12

RECOMMENDED RULING - MAGISTRATE JUDGE signed by MAG/JUDGE P. TREVOR SHARP on 8/7/09 re 7 MOTION for Summary Judgment filed by COUNTRYWIDE HOME LOANS be granted and that this action be dismissed with prejudice. (Wilson, JoAnne)

I N THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF NORTH CAROLINA

C O R E Y GLENN FULLMORE, P l a i n t i f f, v. C O U N T R Y W I D E HOME LOANS, I N C ., D efe n d a n t.

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R E C O M M E N D A T I O N OF UNITED STATES MAGISTRATE JUDGE

T h is matter comes before the Court on the motion for summary judgment (Docket No. 7 ) filed by Defendant Countrywide Home Loans, Inc. Pro se Plaintiff Corey Glenn Fullmore h a s not responded to the motion, and the time for response has run.1 Accordingly, the s u m m a ry judgment motion will be treated as unopposed pursuant to the local rules. See L R 7 .3 k . P la in tif f ' s complaint in this action is styled "Common Law Complaint, Petition of P r o te st." (Docket No. 2.) In the complaint, Plaintiff Fullmore alleges in Count I ("Money L e n t" ) that this is an action for damages exceeding $143,630. He states that on

The record shows that Defendant directed service of process of the motion for s u m m a ry judgment to the address Plaintiff identified in his complaint. Plaintiff has given n o notice of a change of address. Defendant has also directed service to a second address, a s well. See Docket No. 10.

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S e p te m b e r 22, 2006, Plaintiff deposited $143,630 with Defendant Countrywide. He states that he has made "final demand" but there has been a refusal to pay, and Defendant therefore o w e s $143,630 to Plaintiff. In Count II ("Breach of Contract"), Plaintiff alleges that on S e p te m b e r 22, 2006, the parties entered into a contract in which Plaintiff sold "Accuser" a N o te on deposit in the amount of $143,600." Id. He states that Defendant has failed to return th e deposit and therefore owes to Plaintiff the value of the deposit. In Count III ("Violations o f Truth in Lending Law"), Plaintiff alleges that on September 22, 2006, he sold the D e f en d a n t a promissory note in the amount of $143,600. He states that he was the " d e p o sito r" in this transaction. He alleges that Defendant prepared the note and mortgage a g re e m e n ts in writing, but failed to disclose that Plaintiff "was the depositor and that the A c c u se r risked none of its assets in the exchange . . . ." Id. Plaintiff alleges that Defendant C o u n tr yw id e violated 12 C.F.R. § 226.17(c)(1) of the Truth in Lending Law by failing to d isc lo se this material fact. Plaintiff contends that the note and mortgage are null and void a n d Defendant owes to Plaintiff the amount of the note. The complaint is signed by Corey G le n n Fullmore. D e f en d a n t Countrywide, through counsel, moves for summary judgment on the C o m p lain t. For reasons set forth below, the Court concludes that Defendant's motion should b e granted. A party is entitled to judgment as a matter of law upon a showing that "there is no g e n u i n e issue as to any material fact." Fed. R. Civ. P. 56(c). The material facts are those -2-

id e n tif ie d by controlling law as essential elements of claims asserted by the parties. A g e n u in e issue as to such facts exists if the evidence forecast is sufficient for a reasonable trier o f fact to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1 9 8 6 ). No genuine issue of material fact exists if the nonmoving party fails to make a s u f f ic ie n t showing on an essential element of its case as to which it would have the burden o f proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In evaluating a f o re c as t of evidence on summary judgment review, the court must view the facts and in f e re n c es reasonably to be drawn from them in the light most favorable to the nonmoving p a r t y. When the moving party has carried its burden, the nonmoving party must come f o rw a rd with evidence showing more than some "metaphysical doubt" that genuine and m a t e r ia l factual issues exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 5 7 4 , 586 (1986), cert. denied, 481 U.S. 1029 (1987). A mere existence of a scintilla of e v id e n c e is insufficient to circumvent summary judgment. Anderson, 477 U.S. at 252. In s te a d , the nonmoving party must convince the court that, upon the record taken as a whole, a rational trier of fact could find for the nonmoving party. Id. at 248-49. Trial is unnecessary if "the facts are undisputed, or if disputed, the dispute is of no consequence to the dispositive q u e stio n ." Mitchell v. Data General Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993). D e f en d a n t has presented the note and mortgage between the parties dated S e p te m b e r 22, 2006. The Note and Deed of Trust establish that Plaintiff borrowed the sum -3-

o r $143,630 from Countrywide. Plaintiff's claim for "money lent" therefore has no factual p re d ic a te . Plaintiff has not responded to the summary judgment motion and has presented n o evidence that he lent money to Countrywide. Plaintiff's claim for "breach of contract" f a ils for the same reason. Plaintiff's claim for "Violations of the Truth in Lending Law" is a ls o frivolous. Plaintiff alleges that Countrywide violated federal law by failing to disclose a material fact ­ allegedly that Plaintiff was "the depositor" in the Note and Deed of Trust, a n d Countrywide "risked none of its assets." However, the documents themselves give a b so lu te ly no support to Plaintiff's allegation and, in fact, conclusively demonstrate that P la in tif f was a borrower, not a depositor, under the agreements. Plaintiff has presented no ev iden ce to support his claim in Count III. T h is Court has, on repeated occasions, rejected complaints similar to that of pro se P lain tiff Fullmore (i.e., "debt elimination schemes") on grounds of frivolity or failure to state a legal claim. See Adams v. Bank of America, N.A., No. 1:06CV00228, 2007 WL 2746871 (M .D .N .C . Sept. 19, 2007); Adams v. GE Money Bank, No. 1:06CV00227, 2007 WL 1 8 4 7 2 8 3 (M.D.N.C. June 25, 2007); Pierce v. Ocwen Loan Servicing, No. 1:06CV630, 2007 W L 1672776 (M.D.N.C. June 8, 2007); see also Demmler v. Bank One NA, No. 2 :0 5 -C V -3 2 2 , 2006 WL 640499, at *4 (S.D. Ohio, Mar. 9, 2006)(collecting cases). action sh o u ld be dismissed with prejudice on Defendant's motion for summary judgment.

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C o n c lu s io n F o r reasons set forth above, IT IS RECOMMENDED that Defendant's Rule 56 m o tio n (Docket No. 7) be granted and that this action be dismissed with prejudice.

/s/ P. Trevor Sharp United States Magistrate Judge

D a te : August 7, 2009

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