COWART v. BANK OF AMERICA, N.A. et al

Filing 6

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 12/31/2015, that in forma pauperis status be granted for the sole purpose of entering this Order and Recommendation.RECOMMENDED that Plaintiff's Motion for Preliminary Injunction [Doc. # 4 ] and Motion for Temporary Restraining Order [Doc. # 5 ] be denied, and that this action be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for failing to state a claim upon which relief may be granted, but without prejudice to Plaintiff asserting any state law claims she may have in state court. (Taylor, Abby)

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

SANDRA S. COWART,
Plaintiff,
v.
BANK OF AMERICA, N.A., SHAPIRO &
INGLE, LLP, CORNISH LAW, PLLC,
Defendants.

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1:15CV1098

ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on a Complaint filed by Plaintiff Sandra S. Cowart.
In the Complaint, Plaintiff attempts to challenge state court foreclosure proceedings and a state
court order finding that her residence in Greensboro, North Carolina, may be sold at foreclosure
sale, which is presently scheduled for January 11, 2016. Plaintiff names as Defendants Bank of
America, N.A. (“Bank of America”), and two alleged substitute trustees, Shapiro & Ingle, LLP,
and Cornish Law, PLLC. Plaintiff has also filed a Motion for Preliminary Injunction [Doc. #4]
and a Motion for Temporary Restraining Order [Doc. #5], seeking to stop the foreclosure sale.
In conjunction with the Complaint, Plaintiff also submitted an Application for Leave to
Proceed In Forma Pauperis. “The federal in forma pauperis statute, first enacted in 1892 [and
now codified at 28 U.S.C. § 1915], is intended to guarantee that no citizen shall be denied access
to the courts ‘solely because his poverty makes it impossible for him to pay or secure the costs.’”
Nasim v. Warden, Md. House of Correction, 64 F.3d 951, 953 (4th Cir. 1995) (quoting Adkins

v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342 (1948)). “Dispensing with filing fees,
however, [is] not without its problems. Parties proceeding under the statute d[o] not face the
same financial constraints as ordinary litigants. In particular, litigants suing in forma pauperis
d[o] not need to balance the prospects of successfully obtaining relief against the administrative
costs of bringing suit.” Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th Cir. 2004).
To address this concern, the in forma pauperis statute provides that “the court shall
dismiss the case at any time if the court determines that – . . . (B) the action or appeal – (i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
As to the first of these grounds for dismissal, the United States Supreme Court has
explained that “a complaint, containing as it does both factual allegations and legal conclusions,
is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490
U.S. 319, 325 (1989). “The word ‘frivolous’ is inherently elastic and not susceptible to
categorical definition. . . . The term's capaciousness directs lower courts to conduct a flexible
analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of
a claim.” Nagy, 376 F.3d at 256-57 (some internal quotation marks omitted).
As to the second grounds for dismissal, a plaintiff “fails to state a claim on which relief
may be granted,” 28 U.S.C. § 1915(e)(2)(B)(ii), when the complaint does not “contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (internal citations omitted) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard “demands more than an

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unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. In other words, “the tenet
that a court must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.1 In addition, the Court may anticipate affirmative
defenses which are clear on the face of the complaint. Todd v. Baskerville, 712 F.2d 70 (4th Cir.
1983).
In this case, Plaintiff alleges in her Complaint that Defendant Bank of America obtained
an order of foreclosure on her residence “without ever proving standing as holder in due
course.” (Compl. [Doc. #3] at 2 (emphasis omitted).) Plaintiff states that a “de novo hearing”
was held on February 4, 2015. (Id.) Plaintiff further alleges that at this hearing, a witness
testified to hearsay, a copy of her mortgage note did not match the original copy, the record
showed two securitizations of her mortgage note which caused it to be null and void, and that
her chain of title showed that Bank of America was not a proper holder of her mortgage note.
(Id. at 2-3.) Plaintiff seeks as relief a “federal common law lein [sic] in the amount of
$165,900.00” and other relief “due to fraudulent filing without jurisdiction (subject matter) and
standing to foreclose and sale.” (Id. at 4.)
In her Motion for Preliminary Injunction [Doc. #4], Plaintiff seeks to bar the sale of her
residence. She says that Defendant Bank of America has “issued a Notice of Trustee Sale and
1

Although the Supreme Court has reiterated that “[a] document filed pro se is to be liberally construed
and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation marks omitted),
the United States Court of Appeals for the Fourth Circuit has “not read Erickson to undermine Twombly’'s
requirement that a pleading contain more than labels and conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304
n.5 (4th Cir. 2008) (internal quotation marks omitted) (applying Twombly standard in dismissing pro se
complaint).

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intends to sell the property at a public auction.” (Id. at 1.) Plaintiff claims that her note is
owned by Bank of New York Mellon Trust rather than Defendant Bank of America. She claims
that Defendant Bank of America is attempting to defraud her and the state court.
Similarly, in Plaintiff’s Motion for Temporary Injunction [Doc. #5], Plaintiff seeks to
stop the pending foreclosure sale of her residence. She says that she has lived in the residence
for 40 years. Plaintiff asks for a “temporary restraining order to stop the foreclosure sale of her
property pending resolution of her Motion to Strike a Void Judgment.” (Id. at 2.)
For the reasons that follow, the Complaint should be dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B) because it fails to state a claim on which relief may be granted. First, Plaintiff
makes no specific factual allegations against the two alleged substitute trustees. Therefore,
Plaintiff has failed to state a claim upon which relief may be granted against them. Plaintiff does
make allegations against Defendant Bank of America, but Plaintiff does not state any claim
under federal law or any basis for any federal claim against Bank of America. Instead, Plaintiff’s
claims are all efforts to challenge the February 4, 2015 state court judgment, which apparently
resulted in the impending foreclosure sale of Plaintiff’s residence. However, the “RookerFeldman doctrine” prohibits federal district courts from asserting subject matter jurisdiction for
the purpose of reviewing state court decisions. See D.C. Ct. of Appeals v. Feldman, 460 U.S.
462 (1983); Rooker v. Fidelity Tr. Co., 263 U.S. 413 (1923). Thus, 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 state judgment itself
violates the loser’s federal rights.” Johnson v. De Grandy, 512 U.S. 997, 1005–06 (1994); see also

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Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) (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”). Pursuant to this doctrine, Plaintiff may not assert claims that “ask this court to
determine that the state foreclosure order is invalid or wrongly decided.” Harris v. SunTrust
Mortgage, Inc., No. 12-CV-378, 2013 WL 1120846, at *3 (M.D.N.C. Mar. 18, 2013). Plaintiff
may therefore not assert claims in this Court challenging the determination of the state court.
Plaintiff had an avenue for appealing that decision in state court. The present suit was filed after
the state court order was entered, and to the extent Plaintiff challenges or seeks review of that
state court foreclosure order, this Court lacks subject matter jurisdiction of those claims pursuant
to the Rooker-Feldman doctrine. As noted above, Plaintiff also fails to allege facts that would
state a federal cause of action independent of the state court hearing and order of foreclosure.
Therefore, for all of these reasons, this case should be dismissed.2
Because this Court lacks subject matter jurisdiction over Plaintiff’s claims, her Motions
for Preliminary Injunction and for a Temporary Restraining Order should be denied.
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The Court also notes that to the extent Plaintiff seeks to proceed in forma pauperis in this matter, it
appears that Plaintiff could make payments toward the filing fee in this case. In this regard, the Court notes that
“[a] litigant is not required to show that he is completely destitute in order to qualify as an indigent within the
meaning of § 1915(a). . . . However, the ‘privilege to proceed without posting security for costs and fees is
reserved to the many truly impoverished litigants who, within the District Court’s sound discretion, would remain
without legal remedy if such privilege were not afforded to them.’” Stallings v. Warden of Evans Correctional
Inst., 8:10CV2668, 2010 WL 5387488 (D.S.C. Dec. 22, 2010) (quoting Brewster v. N. Am. Van Lines, Inc., 461
F.2d 649, 651 (7th Cir. 1972)). In the present case, based on the information presented in Plaintiff’s Affidavit,
it appears that Plaintiff would not be without a legal remedy if she is denied in forma pauperis status. Therefore,
if this case were otherwise to proceed, the Court would intend to set up a payment schedule for Plaintiff to pay
the filing fee. However, the Court will not impose such a requirement at this time, as the case is subject to
dismissal, as set out above.

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Plaintiff’s request to proceed in forma pauperis shall be granted for the sole purpose of
entering this Order and Recommendation.
IT IS THEREFORE ORDERED that in forma pauperis status be granted for the sole
purpose of entering this Order and Recommendation.
IT IS RECOMMENDED that Plaintiff’s Motion for Preliminary Injunction [Doc. #4]
and Motion for Temporary Restraining Order [Doc. #5] be denied, and that this action be
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for failing to state a claim upon which relief may
be granted, but without prejudice to Plaintiff asserting any state law claims she may have in state
court.
This, the 31st day of December, 2015.

/s/ Joi Elizabeth Peake
United States Magistrate Judge

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