HARRIS et al v. SUNTRUST MORTGAGE, INC., et al

Filing 69

MEMORANDUM OPINION AND ORDER Signed by JUDGE THOMAS D. SCHROEDER on 03/18/2013, that The motion to dismiss by SunTrust Mortgage, Inc., SunTrust Banks, Inc., SunTrust Bank, and Mortgage Electronic Registration Systems, Inc. (Doc. 14 ) is GRANTED , and Plaintiffs' claims as to these Defendants are DISMISSED with prejudice; The motion to dismiss by Lee County Clerk of Superior Court Susie K. Thomas and Lee County Assistant Clerk of Superior Court Robin D. Bell (Doc. 16 ) is GRANTED, and Plaintiffs' claims as to these Defendants are DISMISSED with prejudice; The motion to dismiss by Hilton T. Hutchens, Jr., Senter, Kellam, & Petit, P.A. f/k/a The Law Firm of Hutchens, Senter, & Britton, P.A., and Su bstitute Trustee Services, Inc. (Doc. 28 ) is GRANTED, and Plaintiffs' claims as to these Defendants are DISMISSED with prejudice; The motion for summary judgment by April E. Stephenson, P.A. and Manly Andrew (Doc. 32 ) is GRANTED; Plaintiffs' claims against John or Jane Does 1-100 are DISMISSED with prejudice; Plaintiffs' "Petition for Motion of Preliminary Injunction and Stay of Possession Prohibiting Seizure of Plaintiffs' Property&q uot; (Doc. 47 ), motion for "Replevin in Detinent" (Doc. 48 ), and "Motion for Issuance of Cease and Desist Order for the Replevin in Detinent" (Doc. 56 ) are DENIED as moot; and Plaintiffs' Motion for Leave to File Amended Complaint (Doc. 61 ) is DENIED.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

WILLIAM L. HARRIS,
ADRIANE L. HARRIS,

III

AND

Plaintiffs,
v.
SUNTRUST
MORTGAGE,
INC.;
SUNTRUST BANKS, INC.; SUNTRUST
BANK;
MORTGAGE
ELECTRONIC
REGISTRATION
SYSTEMS,
INC.;
APRIL E. STEPHENSON, P.A.; LEE
COUNTY CLERK OF SUPERIOR COURT
SUSIE K. THOMAS, in her public
and
private
capacity;
LEE
COUNTY
ASSISTANT
CLERK
OF
SUPERIOR COURT ROBIN D. BELL,
in her public and private
capacity; HILTON T. HUTCHENS,
JR.;
HUTCHENS,
SENTER
&
BRITTON,
P.A.;
SUBSTITUTE
TRUSTEE SERVICES, INC.; MANLY
ANDREW LUCAS; JOHN OR JANE
DOES 1-100, being substitute
trustee, undisclosed mortgage
wholesalers,
mortgage
originators,
loan
seller,
Trustee
of
Pooled
Assets,
Trustee
for
holders
of
Certificates in Collateralized
Mortgage Obligations, unknown
investors,
investment
banker(s), et al.,
Defendants.

)
)
)
)
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)
)
)
)
)
)
)
)
)
)
)
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)

12-cv-378

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.

Before the court are multiple motions arising out of North
Carolina

foreclosure

subject

of

two

federal

lawsuit.

proceedings

separate

state

William

L.

that

have

already

foreclosure

Harris,

III

been

the

and

one

Harris”)

and

actions

(“Mr.

Adriane L. Harris (“Mrs. Harris”) (collectively, “Plaintiffs”)
move

for

a

Prohibiting
“Replevin

“Preliminary
Seizure

in

of

Detinent”

Injunction

and

Stay

of

Possession

Plaintiffs’

Property”

(Doc.

(Doc.

for

to

48),

leave

47),

amend

for

their

complaint (Doc. 61), and for “Issuance of Cease and Desist Order
for the Replevin in Detinent” (Doc. 56).

The various Defendants

move either to dismiss the action or for summary judgment.
Docs.

14,

16,

28,

&

32.)

For

the

reasons

stated

(See
below,

Plaintiffs’ motions will be denied, and Defendants’ motions to
dismiss and for summary judgment will be granted.
I.

BACKGROUND
This action involves a December 31, 2003 loan (“Loan”) made

by Defendant SunTrust Mortgage, Inc. (“SunTrust Mortgage”) to
Plaintiffs.
used

to

(Doc. 1 (Complaint (“Compl.”)) at 7.) 1

finance

Plaintiffs’

purchase

of

a

The Loan was

single

family

residence located at 1221 Sheriff Watson Road, Sanford, North
Carolina

(“Property”).

Plaintiffs

executed

a

(Id.)

In

promissory

1

financing

note

(“Note”)

this

purchase,

for

$239,500,

Plaintiffs’ complaint does not contain numbered paragraphs, so all
citations to that document will be by page number.

2

which was secured by a Deed of Trust (“DOT”) on the Property.
(Id.)

The Note and DOT both identify SunTrust Mortgage as the

lender.

(Id.;

Doc.

15,

Exs.

A

&

B.)

Defendant

Mortgage

Electronic Registrations Systems, Inc. (“MERS”) was named the
beneficiary under the DOT in its capacity as a “nominee for
Lender and Lender’s successors and assigns.”

(Doc. 15, Ex. B.)

In August 2009, Plaintiffs defaulted on the Loan.
Since
litigation

Plaintiffs’
between

default,

Plaintiffs

there

and

has

SunTrust

been

extensive

Mortgage.

After

initial foreclosure proceedings were initiated in Lee County,
North

Carolina

(No.

09-SP-266,

Lee

County

Superior

Court),

Plaintiffs, appearing pro se, filed a federal action against
SunTrust Mortgage, SunTrust Banks, Inc., and MERS (No. 09-cv925, United States District Court for the Middle District of
North

Carolina)

asking

this

court

to

permanently

enjoin

foreclosure, grant a “[r]ecission of the entire Mortgage and
note,”

quiet

title

to

the

Property,

and

compensatory damages and attorneys’ fees.

award

Plaintiffs

(Doc. 15, Ex. C.)

This court dismissed Plaintiffs’ claims on the merits (id., Exs.
E & F), and Plaintiffs did not appeal.
SunTrust Mortgage subsequently returned to the Lee County
Superior Court and commenced another foreclosure proceeding (No.
12-SP-18, Lee County Superior Court).
D.

Bell

(“Bell”),

the

Lee

County
3

On March 29, 2012, Robin

Assistant

Clerk

of

Court,

conducted

a

foreclosure

hearing.

Mr.

Harris

attended

this

hearing and raised multiple objections to the proceedings.

(See

generally Doc. 1 (Compl.), Ex. A-1.)

Bell overruled those

objections and entered an order permitting SunTrust Mortgage to
proceed with a foreclosure sale of the Property.
G.)

(Doc. 15, Ex.

In so doing, Bell found that SunTrust Mortgage was the

holder of the Note, the Note evidenced a valid debt owed by
Plaintiffs, the Note was in default, and that SunTrust Mortgage
had the right to foreclose under a power of sale.
the

end

informed

of

the

Mr.

proceedings,

Harris

foreclosure order.

that

counsel

he

had

for

ten

(Id.)

SunTrust

days

to

Toward
Mortgage

appeal

the

(Doc. 1 (Compl.), Ex. A-1 at 20:8-14.)

No

appeal was filed.
Following entry of the foreclosure order, Mr. Harris, 2 again
appearing
SunTrust

pro

se,

Mortgage,

filed

the

SunTrust

instant

Banks,

2

lawsuit

Inc.,

against:

SunTrust

Bank,

(1)
and

Although the complaint identifies both Mr. and Mrs. Harris as
Plaintiffs in this action, only Mr. Harris’ signature appears on the
complaint and subsequent motions.
Accordingly, because Mr. Harris
does not identify himself as the attorney for Mrs. Harris, SunTrust
Mortgage encourages this court to dismiss any claims of Mrs. Harris
for failure to comply with Federal Rule of Civil Procedure 11(a),
which states that all documents before the court “must be signed by at
least one attorney of record . . . — or by a party personally if the
party is unrepresented” (emphasis added). Although the Rules of Civil
Procedure apply equally to pro se litigants, courts have held that “a
pleading filed inadvertently without any signature may be viewed as a
technical defect and not a substantial violation of Rule 11.” Hadlock
v. Baechler, 136 F.R.D. 157, 159 (W.D. Ark. 1991).
Therefore, in
keeping with the general rule in this circuit to treat procedural
errors by pro se litigants liberally, Bauer v. C.I.R., 97 F.3d 45, 49
(4th Cir. 1996), the court will overlook Mrs. Harris’ failure to sign
the complaint and other motions that name her as a plaintiff.

4

MERS; (2) the closing attorney on the Loan, April E. Stephenson,
P.A.

(“Stephenson”);

Susie

K.

Thomas

(3)

Lee

County

(“Thomas”),

in

Clerk

her

of

official

Superior
and

Court

personal

capacity, and Lee County Assistant Clerk of Superior Court Bell,
in her official and personal capacity; (4) counsel for SunTrust
Mortgage, Hilton T. Hutchens, Jr. (“Hutchens”) and his law firm,
Senter, Kellam, & Petit, P.A. f/k/a The Law Firm of Hutchens,
Senter, & Britton, P.A. (“HSKP”); and (5) the company acting as
substitute trustee, Substitute Trustee Services, Inc. (“STS”),
and its attorney, Manly Andrew Lucas (“Lucas”).

Mr. Harris now

asserts the following claims: (1) deprivation of civil rights in
violation

of

42

U.S.C.

§§

1982,

1983,

1985,

and

1986;

(2)

“commercial dishonor” of Defendants; (3) lack of evidence to
prove title; (4) slander of title; (5) violations of the Truth
in

Lending

violations

Act,
of

the

15

U.S.C.

Real

§

1601,

Estate

et

Settlement

seq.

(“TILA”);

Procedures

(6)

Act,

12

U.S.C. § 2601, et seq. (“RESPA”); (7) violations of the Home
Ownership

Equity

Protection

Act,

15

U.S.C.

§

1639,

et

seq.

(“HOEPA”); (8) violations of the Fair Credit Reporting Act, 15
U.S.C. § 1681, et seq. (“FCRA”); and (9) to quiet title to real
property.
II.

ANALYSIS
A.

Defendants’ Motions to Dismiss

Three motions to dismiss are before the court.
5

Each will

be addressed in turn.
1.

Standards for Motions to Dismiss

Dismissal

is

appropriate

under

Federal

Rule

of

Civil

Procedure 12(b)(6) where a plaintiff fails to plead a short and
plain statement of the claim showing the pleader is entitled to
relief.

Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir.

1992).

A plaintiff must plead “enough facts to state a claim to

relief that is plausible on its face.”
Twombly,

550

U.S.

544,

570

(2007).

Bell Atl. Corp. v.
As

such,

“[w]hile

a

complaint . . . does not need detailed factual allegations,” a
complaint

does

not

contains

sufficient

inference

that

achieve

alleged.

allegations

the

defendant

plausibility

supporting

is

liable

for

unless

the

it

reasonable

the

misconduct

Id. at 555.
2.

Motion
to
Dismiss
Claims
Against
SunTrust
Mortgage, SunTrust Banks, Inc., SunTrust Bank,
and MERS

Plaintiffs’
Banks,

facial

Inc.,

claims

SunTrust

will be dismissed.

against

Bank,

and

SunTrust
MERS

Mortgage,

(“SunTrust

SunTrust

Defendants”)

First, Plaintiffs’ claims to quiet title to

real property and for lack of evidence to prove title must be
dismissed pursuant to the Rooker-Feldman doctrine. 3
Feldman

doctrine

prohibits

the

3

federal

district

The Rookercourts

from

The Rooker–Feldman doctrine is derived from the United States
Supreme Court's decisions in D.C. Court of Appeals v. Feldman, 460
U.S. 462 (1983) and Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).

6

asserting

subject

matter

jurisdiction

reviewing state court decisions.

for

the

purpose

of

Exxon Mobil Corp. v. Saudi

Basic Indus. Corp., 544 U.S. 280, 284-85 (2005).

As such, a

party that loses in state court is “barred from seeking what in
substance would be appellate review of the state judgment in a
United States district court, based on the losing party's claim
that

the

rights.”

state

judgment

itself

violates

the

loser's

federal

Johnson v. De Grandy, 512 U.S. 997, 1005–06 (1994);

see also Exxon Mobil Corp., 544 U.S. at 284

(holding that,

under the Rooker-Feldman doctrine, a federal court cannot assert
jurisdiction in “cases brought by state-court losers complaining
of injuries caused by state-court judgments rendered before the
district court proceedings commenced and inviting district court
review and rejection of those judgments”).
The

Rooker-Feldman

doctrine

bars

this

court

from

considering the validity of the foreclosure, as that issue was
adjudicated by the Lee County Superior Court, which found that
Plaintiffs were in default and SunTrust Mortgage had standing to
foreclose (Doc. 15, Ex. G). 4
and

for

lack

of

evidence

Plaintiffs’ claims to quiet title
to

prove

4

title

must

therefore

be

Further, Plaintiffs could have sought appellate review pursuant to
N.C. Gen. Stat. § 45–21.16(d1), which entitled them to a de novo
review by a North Carolina superior court judge. See Watkins v. Clerk
of Superior Court for Gaston Cnty., No. 3:12–cv–033–RJC, 2012 WL
5872750, at *5 (W.D.N.C. Nov. 20, 2012) (“The Rooker-Feldman doctrine
is particularly relevant when there is a means of appeal provided by
the state.”).

7

dismissed as to all Defendants, as those claims ask this court
to

determine

wrongly

that

the

decided.

evidence

to

state

(See

prove

Doc.

title

foreclosure
1

claim)

(Compl.)

order

is

at

(asserting

invalid

or

13-17

(lack

of

that

there

is

insufficient evidence for SunTrust Mortgage to claim title); id.
at

22-24

(quiet

title

claim)

(seeking

a

declaration

and

determination that Plaintiffs are the rightful holders of title
to the Property).)

This result is in accord with other North

Carolina federal district courts that have considered this issue
in the context of challenges to state foreclosure orders.

See,

e.g., Pitts v. U.S. Hous. & Urban Dev., No. 5:12–CV–72–D, 2013
WL 214693, at *3 (E.D.N.C. Jan. 18, 2013) (finding that RookerFeldman doctrine bars consideration of claims that challenge a
North Carolina clerk of court’s decision in a state foreclosure
action); Watkins v. Clerk of Superior Court for Gaston Cnty.,
No. 3:12–cv–033–RJC, 2012 WL 5872750, at *6 (W.D.N.C. Nov. 20,
2012) (same); Adolphe v. Option One Mortg. Corp., No. 3:11–cv–
418–RJC, 2012 WL 5873308, at *4 (W.D.N.C. Nov. 20, 2012) (same);
Poindexter

v.

Wells

Fargo

Bank,

N.A.,

No.

3:10cv257-RJC-DLH,

2010 WL 3023895, *2 (W.D.N.C. July 29, 2010) (same).
Further, it is also worth noting that even if the RookerFeldman

doctrine

did

not

apply,

this

court

is

nevertheless

precluded from considering any of Plaintiffs’ claims that seek
to challenge the validity of the state court foreclosure order.
8

Under North Carolina law, issues that the clerk of court decides
at a foreclosure hearing as to the validity of the debt and the
trustee's right to foreclose are precluded from re-litigation if
not appealed to the state superior court. 5

Phil Mechanic Const.

Co., Inc. v. Haywood, 72 N.C. App. 318, 322, 325 S.E.2d 1, 3
(1985); see also Sedlack v. Braswell Servs. Group, Inc., 134
F.3d 219, 224 (4th Cir. 1998) (noting that a court is precluded
from re-litigating issues “that are identical to issues which
have been actually determined and necessarily decided in prior
litigation”).

As

such,

Plaintiffs’

claims

that

seek

to

challenge the sufficiency of the evidence at the foreclosure
hearing

and

considered.

Defendants’

status

as

to

the

Note

cannot

be

See Gilbert v. Res. Funding LLC, 678 F.3d 271, 280

(4th Cir. 2012) (agreeing with district court that issues the
clerk

of

court

decides

at

a

foreclosure

hearing

as

to

the

validity of the debt and the trustee’s right to foreclose cannot
be re-litigated); Mixon v. Wells Fargo Home Mortg., No. 3:12–cv–
77–RJC–DLH, 2012 WL 1247202, at *2-3 (W.D.N.C. Apr. 13, 2010)
(federal

court

cannot

re-litigate

issues

underlying

a

North

Carolina superior court's order permitting foreclosure); Merrill
5

A plaintiff has two means of attacking a foreclosure order: (1)
through a de novo appeal to the state superior court, N.C. Gen. Stat.
§ 45–21.16(d1); or (2) by raising legal or equitable defenses in a
separate state superior court action to enjoin the foreclosure sale,
id. § 45–21.34.
Both options expire ten days after the foreclosure
order is entered. See id. § 45–21.29A. In this case, Plaintiffs did
not utilize either of these two review mechanisms, and their ten-day
period for doing so has long since expired.

9

Lynch Bus. Fin. Servs., Inc. v. Cobb, No. 5:07–cv–129–D, 2008 WL
6155804, at *4 (E.D.N.C. Mar. 18, 2008) (federal lawsuit seeking
to challenge the validity of a North Carolina foreclosure order
was precluded). 6
Plaintiffs’ other federal claims fare no better.
Plaintiffs’

claims

for

rescission

under

TILA 7

subject to a three-year statute of limitations. 9

and

First,

HOEPA 8

are

Beach v. Ocwen

6

Plaintiffs are precluded from re-litigating issues when they had a
full and fair opportunity to litigate those issues in the previous
state suit; mutuality of the parties is not required.
Thurston v.
United States, 810 F.2d 438, 445 (4th Cir. 1987). Accordingly, issues
decided at the foreclosure hearing are precluded now even as to
Plaintiffs’ claims against Defendants that were not parties to the
state foreclosure proceedings.
7

TILA and its implementing regulation, Regulation Z (12 C.F.R.
§§ 226.1, et seq.), require a lender to make a series of material
disclosures to a borrower.
If a lender fails to make these
disclosures and the loan is secured by an interest in the borrower’s
principal dwelling, the borrower has the right to rescind the loan
transaction. 15 U.S.C. § 1635(a).
8

HOEPA, an amendment to TILA, requires creditors making “high-cost”
or “high-rate” loans to provide additional disclosures to certain
borrowers. 15 U.S.C. §§ 1631–32; 1639. HOEPA applies if a loan meets
one of two high-cost loan triggers: (1) the annual percentage rate
exceeds by eight percent the yield on Treasury securities of
comparable maturity for first-lien loans, or above ten percent for
subordinate-lien loans; or (2) the total of all the loan's points and
fees exceed eight percent of the loan total or $400 (adjusted for
inflation), whichever is greater.
15 U.S.C. § 1602(bb)(1), (3); 12
C.F.R. § 226.32(a)(1)(i), (ii).
9

Civil damages under TILA are governed by a one-year statute of
limitations. 15 U.S.C. § 1640(e). In this case, the complaint makes
clear that Plaintiffs are seeking rescission, not civil damages,
pursuant to their TILA claim.
(See Doc. 1 (Compl.) at 18
(“Plaintiffs, through this public Complaint which is intended to be
construed, for purposes of this claim, as a formal Notice of
Rescission, hereby elect to rescind the transaction.”).) Accordingly,
the three-year statute of limitations for rescission applies.

10

Fed. Bank, 523 U.S. 410, 411 (1998); In re Cmty. Bank of N. Va.,
418 F.3d 277, 305 (3d Cir. 2005).
(Doc.

1

(Compl.)

expired in 2006. 10

at

7),

and

so

Here, the Loan closed in 2003
the

statute

of

limitations

Additionally, Plaintiffs’ RESPA claim under

12 U.S.C. § 2607 (prohibiting kickbacks and unearned fees) is
subject

to

a

one-year

statute

of

limitations

pursuant

to

12

U.S.C. § 2614 that runs from the date of the violation, which
will not typically accrue later than the closing.

See (Doc. 1

(Compl.) at 7 (noting that the closing in this case was in
2003)); Vega v. JP Morgan Chase Bank, N.A., 654 F. Supp. 2d
1104, 1114 (E.D. Cal. 2009).
RESPA

claims

are

clearly

Therefore, the TILA, HOEPA, and
time-barred

complaint and will be dismissed. 11

on

the

face

of

the

See Goodman v. Praxair, Inc.,

494 F.3d 458, 464 (4th Cir. 2007) (noting that claim can be
dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6)
10

Even if the court considers Plaintiffs’ 2009 federal lawsuit as
notice of rescission under TILA, the three-year statute of limitations
would have still expired. Cf. Gilbert v. Res. Funding, LLC, 678 F.3d
271, 277-78 (4th Cir. 2012) (noting that statute of limitations for
rescission under TILA is satisfied if a plaintiff exercises, not
enforces, her right to rescind within three years of the closing).
11

Further, even if the statute of limitations were not at issue,
these claims would be dismissed anyway because the complaint is “bare
of any factual allegations supporting the . . . causes of actions
alleged against Defendants, let alone sufficient facts to establish
the essential elements of the claims.” Booker v. Wash. Mut. Bank, FA,
375 F. Supp. 2d 439, 441 (M.D.N.C. 2005). For example, the complaint
fails to allege facts making plausible that the required disclosures
under TILA and HOEPA were not made because it only references
“improper disclosures” without additional specificity.
Additionally,
a claim under RESPA requires the identification of unlawful payment of
referral fees, kickbacks, and other unearned fees, but the complaint
fails to allege what, if any, actual charges are at issue.

11

based on the statute of limitations if all necessary facts to
decide this issue appear clearly on the face of the complaint).
Next, Plaintiffs’ claim for slander of title also fails.

A

slander of title is ultimately a defamatory attack upon property
and

requires

that

a

plaintiff

show

a

falsity,

malicious

publication, and some pecuniary loss.

Selby v. Taylor, 57 N.C.

App.

(1982).

119,

121,

290

S.E.2d

767,

769

In

this

case,

Plaintiffs’ only allegation is that Defendants “made a false and
malicious

written

Plaintiffs’
harm.”
the

title

or
to

spoken
their

public

residential

(Doc. 1 (Compl.) at 17.)

elements

dismissed.
pleading

of

the

cause

statement

of

property

disparaging
that

causes

This is a mere recitation of

action,

and

therefore

will

be

Twombly, 550 U.S. at 555 (holding that plaintiff’s

obligation

“requires

more

than

.

.

.

a

formulaic

recitation of the elements of a cause of action”). 12
Plaintiffs’ claim for “commercial dishonor” of Defendants
will also be dismissed.
this

claim

Commercial
states

that

is

based

Claim

in

on

According to Plaintiffs’ complaint,
Plaintiffs’

Admiralty

“Declarants

have

“Notice

of

Administrative
exhausted

12

their

International

Remedy,”

which

Administrative

Moreover, the only conceivable basis for this claim relates to the
foreclosure, which Plaintiffs, as discussed above, cannot collaterally
attack.
See Selby, 57 N.C. App. at 121, 290 S.E.2d at 769 (“If the
alleged infirmity of the title exists, the action will not lie,
however malicious the intent to injure may have been, because no one
can be punished in damages for speaking the truth.” (quoting Cardon v.
McConnell, 120 N.C. 461 (1897)).

12

Remedies

and

controverting
subsequent

the

respondents

and

arguing

Administrative

are

‘within
or

‘ESTOPPED’
the

Judicial

(Compl.) at 12-13, Ex. A-2).

from

Admiralty’
process.”

ever

in
(Doc.

any
1

This fails to state a cause of

action rooted in either federal or state law.

Additionally, to

the extent that Plaintiffs are seeking through this claim to
challenge
court

the

lacks

propriety

of

jurisdiction

the

state

pursuant

foreclosure
to

the

order,

the

Rooker-Feldman

doctrine, see Jordahl v. Democratic Party of Va., 122 F.3d 192,
202 (4th Cir. 1997) (holding that claims are subject to the
Rooker-Feldman doctrine when they require that the federal court
determine that the state court judgment was erroneous).
Finally, Plaintiffs’ FCRA claim 13 will be dismissed.

In

connection with this claim, Plaintiffs assert that Defendants
“illegally reported negative information as to the Plaintiff to
one

or

more

Credit

Reporting

Agencies

.

.

.

The

negative

information included but was not limited to an excessive amount
of debt into which Plaintiffs was [sic] deceived into signing.”
(Doc. 1 (Compl.) at 21-22.)
information”

must

“report

Under FCRA, “furnishers of credit
accurate

13

information

to

consumer

The elements of an FCRA claim under 15 U.S.C. § 1681s-2(b) are as
follows: (1) there is a dispute over inaccurate information on a
credit report that was furnished to the credit reporting agency by the
defendants; (2) the credit reporting agency notified the defendants of
the dispute; and (3) defendants failed to undertake an investigation
of the dispute.
Smith v. Encore Credit Corp., 623 F. Supp. 2d 910,
922 (N.D. Ohio 2008).

13

reporting

agencies

regarding

a

consumer's

credit.”

Bach

v.

First Union Nat'l Bank, 149 F. App'x 354, 358 (6th Cir. 2005).
A plaintiff alleging violations of § 1681s–2(b) of FCRA, as is
the case here, may bring a private cause of action against the
furnisher,

but

only

if

the

plaintiff

can

“show

that

the

furnisher received notice from a consumer reporting agency, not
the plaintiff, that the credit information is disputed.”

Downs

v. Clayton Homes, Inc., 88 F. App'x 851, 853–54 (6th Cir. 2004).
In this case, Plaintiffs have failed to allege that they
disputed the accuracy of the information that was reported by
the SunTrust Defendants or that the SunTrust Defendants received
notice of the dispute from a credit reporting agency.
dismissal is appropriate.

As such,

See id. at 854; see also Smith v.

Encore Credit Corp., 623 F. Supp. 2d 910, 922 (N.D. Ohio 2008)
(finding

that

negligently

or

Plaintiffs’
willfully

allegations

furnished

that

inaccurate

“Defendants

information”

to

credit reporting agencies is not enough to survive a motion to
dismiss). 14
3.

Defendants
Clerk

of

Motion to Dismiss Claims Against Defendants Bell
and Thomas
Thomas

Superior

and

Court

Bell
for

14

are
Lee

the

Clerk

County,

and

Assistant

North

Carolina,

Plaintiffs’ claim for deprivation of civil rights is not separately
addressed. Plaintiffs do not assert in their complaint a deprivation
of civil rights cause of action against the SunTrust Defendants. (See
Doc. 1 (Compl.) at 10-12.)

14

respectively.

As part of their claim for deprivation of civil

rights, Plaintiffs allege that Thomas and Bell, in their “public
and

private

capacit[ies],”

“deprived

the

Plaintiffs

[of]

due

process of law for conducting a ‘non-judicial’ foreclosure where
the Clerk and Assistant Clerk are illicitly assuming the role of
a judge or at best practicing law without a license.”
(Compl.) at 9-12.)

(Doc. 1

Plaintiffs’ claim should be dismissed.

First, Plaintiffs have failed to properly serve Thomas and
Bell in their official capacities, and the court therefore lacks
jurisdiction as to any claims against these Defendants in that
regard.
service

North
upon

Carolina

an

officer

law

requires

of

the

State

that
of

a

plaintiff

North

make

Carolina

by

delivering process to the officer’s designated agent, or absent
designation

of

agent,

delivery

General of North Carolina.

of

process

to

the

Attorney

N.C. Gen. Stat. § 1A-1, Rule 4(j);

see also Fed. R. Civ. P. 4(j)(2) (allowing service on state in
manner
served

prescribed
Thomas

employment.

by

and

state
Bell

law).

In

individually

this

case,

Plaintiffs

at

their

place

of

This fails to comply with North Carolina’s rules of

service, and service should have been made on the authorized
agent or the Attorney General.

Accordingly, all claims against

Thomas and Bell in their official capacities are dismissed for
insufficiency of service of process, Fed. R. Civ. P. 12(b)(5),
and lack of personal jurisdiction, Fed. R. Civ. P. 12(b)(2);
15

Koehler v. Dodwell, 152 F.3d 304, 306 (4th Cir. 1998) (“Absent
waiver or consent, a failure to obtain proper service on the
defendant deprives the court of personal jurisdiction over the
defendant.”).
But even if there are remaining claims against Thomas and
Bell in their personal capacities, 15 those claims cannot survive.
First, any claim against Thomas and Bell that seeks to challenge
the sufficiency of the state foreclosure order is subject to the
Rooker-Feldman doctrine, is precluded, and must be dismissed.
(See supra Part II.A.2.)

Further, pursuant to N.C. Gen. Stat.

§§ 7A-40 and 7A-102, Bell and Thomas are judicial officers for
the Superior Court Division of North Carolina’s General Court of
Justice.
applies
there

As such, they are entitled to judicial immunity, which
to

is

bar
a

civil

complete

suits

against

absence

of

judicial

officers

jurisdiction.

unless

Everson

v.

Doughton, 267 F. App’x 229, at *1 (4th Cir. 2008) (per curiam); 16

15

It does appear that Plaintiffs served Thomas and Bell properly in
their personal capacities.
Pursuant to Federal Rule of Civil
Procedure 4(e)(2)(A), service is properly made upon an individual when
a copy of the summons and the complaint is delivered to the individual
personally. In this case, the docket shows that a copy of the summons
and complaint was personally delivered to Thomas and Bell by the Lee
County Sheriff’s Office.
(Doc. 7 (showing proof of personal service
signed by Captain Kevin Kirkman of the Lee County Sheriff’s Office).)
Accordingly, any claims against Thomas and Bell in their personal
capacities are not dismissed for insufficiency of service of process.
16

Unpublished decisions of the Fourth Circuit lack precedential value
but are cited for “the weight they generate by the persuasiveness of
their reasoning.” See Collins v. Pond Creek Mining Co., 468 F.3d 213,
219 (4th Cir. 2006) (citation omitted)).

16

see also Kincaid v. Vail, 969 F.2d 594, 601 (4th Cir. 1992)
(extending

absolute

judicial

immunity

to

clerks

of

There was no such complete lack of jurisdiction here.

court).
See N.C.

Gen. Stat. § 45-21.16 (stating that foreclosure proceedings are
to be held before the clerk of court).
allowed

Thomas

and

Bell

to

act

in

a

North Carolina law

judicial

capacity

with

regard to foreclosure hearings, both are entitled to judicial
immunity, and Plaintiffs cannot assert civil claims against them
for their role in the foreclosure proceedings.

See Harper v.

O’Hanlon, No. 3:11–cv–00081, 2012 WL 912785, at *5-6 (S.D.W. Va.
Feb. 23, 2012) (noting that even if a judicial officer is sued
in his personal capacity, judicial immunity is still grounds for
dismissal). 17

As such, all claims against Thomas and Bell are

dismissed.
4.

Plaintiffs

Motion to Dismiss Claims
Hutchens, HSKP, and STS
have

also

filed

suit

Against

against

the

Defendants

substitute

trustee, STS, and counsel for SunTrust Mortgage, Hutchens and
his law firm, HSKP.

17

Even if service had been proper as to Thomas and Bell in their
official capacities, the claims would still be dismissed for the same
reason, i.e., judicial immunity.
Further, the Eleventh Amendment
would prevent recovery of civil damages for claims against Thomas and
Bell, as the Eleventh Amendment bars suits against state agencies and
state officers acting in their official capacity.
See Gray v. Laws,
51 F.3d 426, 430 (4th Cir. 1995); Glover v. Gaston Cnty. D.A. Office,
No. 3:07CV234, 2007 WL 2712945, at *2 (W.D.N.C. Sept. 14, 2007)
(finding that Eleventh Amendment barred recovery against a North
Carolina clerk of court).

17

In

the

only

section

of

the

complaint

to

specifically

mention one of these Defendants, Plaintiffs state as part of
their deprivation of civil rights claim that they suffered harm
from “imperfections in the foreclosure process” when Defendant
Bell allowed Defendant Hutchens to “submit deceptive documents”
to the court claiming that SunTrust Mortgage had proper standing
to foreclose.

(Doc. 1 (Compl.) at 10.)

This is nothing more

than a bare and generalized accusation of wrongdoing that is not
sufficient to survive a motion to dismiss.
Iqbal, 556 U.S. 662, 678 (2009).
does

not

explain

how

or

by

See Ashcroft v.

Specifically, the assertion

what

means

Hutchens

violated

Plaintiffs’ constitutional rights, including what documents were
submitted and what made them deceptive, and Plaintiffs’ claim of
deprivation of a constitutional right is not nudged “across the
line from conceivable to plausible.”
Booker

v.

Wash.

(M.D.N.C.

2005)

complaint

is

Mut.

Bank,

(dismissing

bare

of

any

FA,

Twombly, 550 U.S. at 570;

375

plaintiff’s
factual

F.

Supp.

complaint

allegations

2d

439,

when

441

“[t]he

supporting

the

federal and state causes of actions . . . let alone sufficient
facts to establish the essential elements of the claims”). 18

18

Plaintiffs allege they were deprived of civil rights pursuant to 42
U.S.C. § 1983 (providing civil remedy for deprivation of rights), 42
U.S.C. § 1985 (prohibiting conspiracy to interfere with civil rights),
and 42 U.S.C. § 1986 (providing civil remedy against those who have
knowledge of wrongs committed under section 1985 yet neglect or refuse
to prevent those wrongs).
Plaintiffs’ threadbare allegations do not
state a claim under any of these statutes.

18

Further, although neither Hutchens, HSKP, nor STS is again
mentioned by Plaintiffs in the complaint, Plaintiffs assert in
one of their response briefs that these Defendants “preceded in
collusion with [Bell] to induce an erroneous judgment” at the
foreclosure

hearing.

(Doc.

36

at

3.)

To

the

extent

this

constitutes a claim against Hutchens, HSKP, or STS, it will be
dismissed as an improper collateral attack on the foreclosure
order properly entered by the State court.

Additionally, the

slander of title claim and the FCRA claim are dismissed for the
reasons stated in the court’s dismissal of these claims against
the

SunTrust

Accordingly,

all

Defendants. 19
claims

(See

against

supra

Hutchens,

Part

HSKP,

and

II.A.2.)
STS

are

dismissed.
B.

Motion for Summary Judgment by Defendants Stephenson
and Lucas

Defendant Stephenson, the closing attorney on the Loan, and
Defendant Lucas, the attorney for the substitute trustee, have
moved for summary judgment.

For the reasons stated below, their

motion will be granted.

19

The commercial dishonor claim, lack of evidence to prove title
claim, and TILA claim are alleged only against the SunTrust Defendants
and/or Defendant Stephenson, and therefore these claims do not apply
to Hutchens, HSKP, or STS. (Doc. 1 (Compl.) at 12-18.) Additionally,
because Hutchens, HSKP, and STS did not become involved with
Plaintiffs until the foreclosure proceedings, any claims based on
alleged wrongs that pre-date the foreclosure (i.e., the RESPA claim
and HOEPA claim) lack merit.

19

1.

Standard for Summary Judgment

Summary judgment is appropriate when there is no genuine
dispute as to any material fact and the moving party is entitled
to judgment as a matter of law.

Fed. R. Civ. P. 56(a); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A genuine dispute

as to a material fact exists when there is sufficient evidence
on which a reasonable jury could return a verdict in favor of
the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248-49 (1986).

But where an adverse party “fails to bring

forth

that

facts

material

showing

point

then,

reasonable

regardless

of

minds
any

could

proof

or

differ

on

a

evidentiary

requirements imposed by the substantive law, summary judgment,
if

appropriate,

shall

be

entered.”

Bouchat

v.

Balt.

Ravens

Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (internal
quotation marks, alteration marks, and citations omitted).
2.
The

Claims Against Stephenson and Lucas

court

will

grant

summary

judgment

Plaintiffs’ claims against Stephenson and Lucas.

as

to

all

of

The slander of

title claim, the TILA claim, the RESPA claim, the HOEPA claim,
the FCRA claim, and the quiet title claim all fail for the
reasons noted above as to the SunTrust Defendants’ motion to
dismiss.

(See supra Part II.A.2.); see also Brown v. Griffin,

112 F.3d 508, at *1 (4th Cir. 1997) (unpublished Table decision)
(affirming

district

court’s

grant
20

of

summary

judgment

when

plaintiff failed to state a claim under Federal Rule of Civil
Procedure 12(b)(6)).

As such, only the deprivation of civil

rights claim as to Lucas will be specifically addressed. 20
Plaintiffs’ complaint alleges that Lucas, as a state actor
subject

to

liability

“deceptive

documents”

standing to foreclose.

under

42

indicating

U.S.C.
that

§

1983,

SunTrust

submitted

Mortgage

had

(Doc. 1 (Compl.) at 10); see Real Estate

Bar Ass’n for Mass., Inc. v. Nat’l Real Estate Info. Servs., 608
F.3d

110,

121

(1st

Cir.

2010)

(noting

that

required for liability under section 1983).

state

action

is

This allegation is

without merit because Lucas was not a state actor.

A private

party is only a state actor when there is joint action between
the state and the private party, the state has significantly
encouraged the private actor, or when a function performed by
the private party has traditionally been an exclusively public
function.

S.P. v. City of Takoma Park, 134 F.3d 260, 269 (4th

Cir. 1998).
Plaintiffs,
trustee.

In the foreclosure proceedings complained of by
Lucas

was

acting

as

counsel

(Doc. 32, Lucas Aff. ¶ 2.)

20

for

the

substitute

There is no evidence or

The commercial dishonor claim and lack of evidence to prove title
claim are alleged only against the SunTrust Defendants, and therefore
these claims do not apply to Stephenson or Lucas. (Doc. 1 (Compl.) at
12-17.) Further, Plaintiffs do not name Stephenson in the deprivation
of civil rights claim.
(See id. at 10-12.)
The court will not
construe the claim as against Stephenson because, as the closing
attorney, Stephenson was not involved in the foreclosure proceedings
that underlie the claim.

21

indication that Lucas was a joint participant with the State, or
that the State coerced Lucas’ actions.

See (Doc. 32, Lucas Aff.

¶¶ 3-4); Smith v. Coffy, No. 2:08–0201–RMG, 2011 WL 2418606, at
*3 (D.S.C. May 27, 2011) (Marchant, M.J) (collecting cases and
noting that private attorneys in litigation are not state actors
for the purposes of section 1983), report and recommendation
adopted by 2011 WL 2418528 (D.S.C. June 13, 2011). 21
Further, Plaintiffs’ general assertion that the foreclosure
process

violates

due

process

because

“it

permits

home

and

landowners to be deprived of their property interest and rights;
without the debtor being heard in any considerable manner or
competent

judicial

oversight”

(Doc.

1

(Compl.)

at

12)

is

baseless.

North Carolina law authorizes foreclosure hearings

before

clerk

the

of

court,

N.C.

Gen.

Stat.

§

45-21.16,

and

provides a ten-day period to file a de novo appeal with the
superior court, id. § 45-21.16(d1).

The fact that Plaintiffs

chose not to utilize this appeal procedure and are now unhappy
with

the

result

does

not

give

rise

to

a

constitutional

violation.

21

To the extent Plaintiffs are also attempting to allege violations of
42 U.S.C. §§ 1985 and 1986 against Lucas, those too fail. Plaintiffs
fail to allege a race or class-based discriminatory animus necessary
for liability under section 1985, and summary judgment is appropriate.
Haverstick Enters., Inc. v. Fin. Fed. Credit, Inc., 32 F.3d 989, 994
(6th Cir. 2004). Additionally, because the section 1985 claim fails,
summary judgment is also appropriate on the section 1986 claim. Id.

22

C.

Plaintiffs’ Claims Against John or Jane Does 1-100

Fictitious-party

pleading

is

generally

not

permitted

in

federal court, and the court may dismiss fictitious-party claims
sua

sponte

except

when

the

plaintiff

provides

a

specific

description of the defendant such that process can be served.
Richardson

v.

Johnson,

598

F.3d

734,

738

(11th

Cir.

2010).

Here, the court is unable to sufficiently identify John or Jane
Does 1–100 (nor have Plaintiffs aided the court in this regard),
and

Plaintiffs’

claims

against

such

unknown

parties

are

dismissed.
D.

Remaining Motions

Plaintiffs have several motions outstanding: a motion for a
“Preliminary
Seizure

of

Injunction
Plaintiffs’

and

Stay

Property”

of

Possession

(Doc.

47),

a

Prohibiting
motion

for

“Replevin in Detinent” (Doc. 48), and a motion for “Issuance of
Cease and Desist Order for the Replevin in Detinent” (Doc. 56),
which all ultimately seek to stay the foreclosure and recover
the Property.

These claims are specious because the foreclosure

has already occurred and the Property is now owned by a third
party who is not involved in this lawsuit.

See Sampson v. Wash.

Mut. Bank, 453 F. App’x 863, 864 n.1 (11th Cir. 2011) (per
curiam) (an action to enjoin a foreclosure sale that has already
occurred

is

moot).

Further,

because

23

the

court

has

either

dismissed or granted summary judgment as to all of Plaintiffs’
claims, these additional motions are now moot.
The

final

remaining

motions

before

the

court

are

Plaintiffs’ motion for leave to file an amended complaint (Doc.
61) and renewed motion to amend complaint, which purports to
include
However,

a

copy
the

of

court

the

proposed

finds

that

amended

complaint

is

improper

document

responds

to

legal

motions

to

dismiss

and

does

amended
the

document

because

arguments
not

complaint

submitted

the

majority

raised

actually

(Doc.

in

raise

64).

as
of

an
the

Defendants’
new

factual

allegations that would more specifically articulate Plaintiffs’
claims.

Further, Plaintiffs’ attempts to plead new causes of

action in this document are ultimately restatements of their
same (non-cognizable) grievances – that SunTrust Mortgage did
not have standing to foreclose and that the Lee County Clerk of
Court lacked authority to conduct the foreclosure hearing.

See

Katyle v. Penn Nat. Gaming, Inc., 637 F.3d 462, 471 (4th Cir.
2011) (stating that a district court may deny leave if amending
the complaint would be futile, i.e., if the proposed amended
complaint fails to state a claim under the applicable rules and
accompanying standards).

Accordingly, leave to amend is denied.

24

III. CONCLUSION
For the reasons stated above, IT IS ORDERED that:
1.

The

SunTrust

motion

Banks,

to

Inc.,

dismiss

SunTrust

by

SunTrust

Bank,

and

Mortgage,

Mortgage

Inc.,

Electronic

Registration Systems, Inc. (Doc. 14) is GRANTED, and Plaintiffs’
claims as to these Defendants are DISMISSED with prejudice;
2.

The motion to dismiss by Lee County Clerk of Superior

Court Susie K. Thomas and Lee County Assistant Clerk of Superior
Court Robin D. Bell (Doc. 16) is GRANTED, and Plaintiffs’ claims
as to these Defendants are DISMISSED with prejudice;
3.

The

motion

to

dismiss

by

Hilton

T.

Hutchens,

Jr.,

Senter, Kellam, & Petit, P.A. f/k/a The Law Firm of Hutchens,
Senter, & Britton, P.A., and Substitute Trustee Services, Inc.
(Doc.

28)

is

GRANTED,

and

Plaintiffs’

claims

as

to

these

Defendants are DISMISSED with prejudice;
4.

The

motion

for

summary

judgment

by

April

E.

Stephenson, P.A. and Manly Andrew (Doc. 32) is GRANTED;
5.

Plaintiffs’ claims against John or Jane Does 1-100 are

DISMISSED with prejudice;
6.

Plaintiffs’

Injunction

and

Plaintiffs’
Detinent”

Stay

Property”

(Doc.

48),

“Petition
of

Possession

(Doc.
and

for

47),

“Motion

25

Motion

of

Preliminary

Prohibiting
motion

for

for

Issuance

Seizure

of

“Replevin

in

of

Cease

and

Desist Order for the Replevin in Detinent” (Doc. 56) are DENIED
as moot; and
7.

Plaintiffs’ Motion for Leave to File Amended Complaint

(Doc. 61) is DENIED.

/s/ Thomas D. Schroeder
United States District Judge
March 18, 2013

26