Ray v. HSBC Bank, N.A.

Filing 4

ORDER denying 2 Motion for Preliminary Injunction. Signed by District Judge Martin Reidinger on September 3, 2010. (Pro se litigant served by US Mail.)(jhg)

R a y v. HSBC Bank, N.A.

Doc. 4

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION C IV IL CASE NO. 1:10cv175

TH O M AS RAY, P l a i n t if f , vs . H S B C BANK, N.A., D e fen d a n t. )

) ) ) ) ) ) ) ) )

ORDER

TH IS MATTER is before the Court on the Plaintiff's Petition for T e m p o ra ry Injunction [Doc. 2]. On August 20, 2010, the Plaintiff filed a twenty-six page complaint which c o n ta in s rambling, inarticulate accusations against the banking industry in g e n e ra l. [Doc. 1]. Although the body of the complaint refers to "Defendants" th e only defendant named is HSBC Bank, N.A. (HSBC). The Plaintiff claims th a t he entered into a contract to refinance his residence at 395-397 North M a in Street, Waynesville, North Carolina but he does not state that the c o n tra c t was with or through HSBC. No date for any such refinancing

a g re e m e n t is specified and no lender, bank or mortgage company is

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id e n tifie d . The Plaintiff makes general allegations that "Defendants," who are n o t identified, defrauded him, engaged in predatory lending acts and failed to c o m p ly with various unspecified statutes. In essence, the complaint is a h a ra n g u e against the lending industry with no specific allegations against HSBC. See, e.g., Doc. 1, at 2 "Carefully Crafted Criminal Connivance

(G e n e ra l State of the Real Estate Industry);" at 3 "How it Works." The Plaintiff m a k e s allegations against the "Lender" but does not identify any person or e n tity as the lender. [Doc. 1, at 3-24]. He makes accusations against an "A g e n t" but makes no further identification thereof. [Id.]. He makes blanket re fe re n c e s to "swap derivatives," "false fees," a "RESPA 1 penalty," c o n s p ira c ie s with an unidentified appraiser and trustee, and deceptive a d ve rtis in g . [Id.]. He admits that the statute of limitations for claims pursuant to the Truth in Lending Act2 (TILA) and RESPA has expired but argues that e q u ita b le tolling is warranted.3 [Id., at 13-14]. He refers to "Easing of

U n d e rw ritin g Standards," "Risk Layering," and other banking practices in

Presumably this refers to the Real Estate Settlement Practices Act, 12 U.S.C. §§2601, et. seq.
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15 U.S.C. §§1601, et. seq.

The Fourth Circuit has not addressed equitable tolling for a TILA claim but has held it is not applicable to RESPA. Zaremski v. Keystone Title Assoc., Inc., 884 F.2d 1391 (4th Cir. 1989). 2

g e n e ra l but makes no specific allegations against HSBC. [Id., at 16-18]. For c a u s e s of action, he claims unjust enrichment by unspecified "defendants" a n d a claim to quiet title against the same "defendants," breach of fiduciary d u ty by an unidentified agent, appraiser, trustee and lender; negligence by u n id e n tifie d "defendants;" fraud by unidentified agents; breach of implied c o ve n a n t against the defendants in general; violations of the TILA by "d e fe n d a n ts ;"4 and intentional infliction of emotional distress by the "d e fe n d a n ts ." [Id., at 17-22]. On the same date that the complaint was filed, the Plaintiff filed a d o c u m e n t which is identical to the complaint except that, through this p le a d in g , the Plaintiff seeks a temporary restraining order. [Doc. 2]. In the m o tio n , the Plaintiff reveals that a state foreclosure action is pending against h is residence and that the sale was scheduled to occur during "the week of A u g u s t 13 th, 2010." [Doc. 2, at 24]. By the time this action was filed on August 2 0 , 2010, the foreclosure sale had occurred. No relief, whether in the form of a temporary restraining order or other relief attacking the foreclosure action, is available in this court. Bey ex rel. Erwin v. Pettis, 2010 WL 2812851

Although references are made to RESPA and the Home Ownership and Equity Protection Act, 15 U.S.C. §1639 (HOEPA), specific claims under those acts are not stated. 3

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(W .D .N .C . 2010); Gallant v. Deutsche Bank Nat. Trust Co., 2010 WL 537874 (W .D .V a . 2010); Pol v. Federal Reserve Bank of New York, 2009 WL 4017164 ( W .D .N .C . 2009); Snyder v. Ledford, 2008 WL 5392070 (W.D.N.C. 2008); W a c h o via Bank, N.A. v. Ellison, 2007 WL 2264623 (M.D.N.C. 2007). As a r e s u lt, the motion for a temporary restraining order is denied as moot. Bey, s u p ra . In essense, this Court "is without jurisdiction to grant the relief sought b y the [motion for a temporary restraining order], because doing so would e ffe c t iv e l y invalidate a final order issued in his state court foreclosure p r o c e e d in g s . If the plaintiff wishes to continue litigating the foreclosure

p r o c e e d in g brought against him in state court, he must do so in that forum." Id. R u le 11 of the Federal Rules of Civil Procedure provides in pertinent p a r t: B y presenting to the court a pleading, ...­whether by signing, filin g , submitting, or later advocating it-- an ... unrepresented party c e rtifie s that to the best of the person's knowledge, information a n d belief, formed after an inquiry reasonable under the c ir c u m s ta n c e s : (1 ) it is not being presented for any improper purpose, s u c h as to harass or to cause unnecessary delay or n e e d le s s increase in the cost of litigation; ( 2 ) the claims, ... and other legal contentions are wa rra n te d by existing law or by a nonfrivolous argument for extending,
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modifying, or reversing existing law or for establishing new law; [a n d ] ( 3 ) the factual contentions have evidentiary support o r , if specifically so identified, will likely have e vid e n tia ry support after a reasonable opportunity for fu rth e r investigation or discovery[.] F e d .R .C iv.P . 11(b). This Court has the authority to sanction a litigant if it d e te rm in e s that Rule 11(b) has been violated. Fed.R.Civ.P. 11(c). The Court's preliminary review of this complaint shows that it is most lik e ly frivolous and does not state claims against the named Defendant. The P la in tiff is heartily encouraged to consult an attorney before continuing with th is litigation. IT IS, THEREFORE, ORDERED that the Plaintiff's Petition for T e m p o ra ry Injunction [Doc. 2] is hereby DENIED.
Signed: September 3, 2010

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