Narog et al v. Federal National Mortgage Association et al

Filing 20

ORDER adopting 18 Memorandum and Recommendations; granting 8 Motion to Dismiss for Failure to State a Claim by Chicago Title Insurance Company; granting 12 Motion to Dismiss and Motion to Strike by Bank of America H ome Loan Servicing LP, Federal National Mortgage Association. Plaintiffs are warned that if they do not serve their Complaint on the remaining defendants within (14) days, their case will be DISMISSED without prejudice. Plaintiffs are ORDERED to provide the Court with updated contact information within (14) days. Signed by Chief Judge Robert J. Conrad, Jr on 1/17/2012. (Pro se litigant served by US Mail.) (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11-CV-429-RJC-DCK
KIM NAROG and JOHN DOE,
Plaintiffs,
v.
FEDERAL NATIONAL MORTGAGE
ASSOCIATION, BANK OF AMERICA
HOME LOAN SERVICING LP,
LASALLE BANK NATIONAL
ASSOCIATION, CHICAGO TITLE
INSURANCE COMPANY, DAVID T.
SIMPSON TRUSTEE, MIDLAND
LOAN SERVICE INC.
Defendants.

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ORDER

THIS MATTER comes before the Court on Defendant Chicago Title Insurance
Company’s Rule 12(b)(6) Motion To Dismiss, (Doc. No. 8), Defendants Federal National
Mortgage Association, Bank of America, N.A., BAC Home Loans Servicing, LP, and LaSalle
Bank N.A.’s Motion To Strike And Motion To Dismiss, (Doc. No. 12), and the Magistrate
Judge’s Memorandum and Recommendation (“M&R”), (Doc. No. 18). The Court has
considered the motions and related briefs, and the matter is ripe for determination.
I.

BACKGROUND
On September 2, 2011, pro se Plaintiffs Kim Narog and John Doe (“Plaintiffs”) filed

their Complaint, (Doc. No. 1), alleging, inter alia, negligence, fraud, wrongful foreclosure,
breach of contract and unjust enrichment. On September 22, 2011, Plaintiffs filed an Amended
Complaint, seeking to add David T. Simpson, Midland Loan Service Inc. and Carroll
Management Group as defendants, (Doc. No. 3). Such amendment was allowed on September

27, 2011 pursuant to Federal Rule of Civil Procedure 15(a)(1). (Doc. No. 4).
On November 1, 2011, Defendant Chicago Title Insurance Company (“CTIC”) filed a
Rule 12(b)(6) Motion To Dismiss. (Doc. No. 8). The Magistrate Judge issued a “Roseboro
Notice” in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) on November 2,
2011, advising Plaintiffs of their right to respond to the motion to dismiss and warning them that
failure to respond would likely result in the pending motion being granted. (Doc. No. 10).
Plaintiffs failed to file a response, or a request for additional time to respond, and the time to do
so has lapsed.
On November 2, 2011, Defendants Federal National Mortgage Association, Bank of
America, N.A., BAC Home Loans Servicing, LP, and LaSalle Bank N.A. filed a Motion To
Strike And Motion To Dismiss, (Doc. No. 12). After the time had lapsed for Plaintiffs to
respond to both pending motions to dismiss, (Doc. Nos. 8; 12), the Magistrate Judge issued a
second “Roseboro Notice” on December 1, 2011 and sua sponte allowed Plaintiffs additional
time, through December 12, 2011, to respond to the pending motions to dismiss. (Doc. No. 17).
In his December 1, 2011 Order, the Magistrate Judge instructed Plaintiffs to respond to the
motions and further warned that failure to do so might lead to the complete dismissal of this
lawsuit. Id. To date, Plaintiffs have failed to respond. Moreover, Plaintiffs have apparently
failed to participate in this lawsuit and/or keep the Court updated with appropriate contact
information since September 22, 2011.
The Magistrate Judge issued an M&R on December 13, 2011, recommending that this
Court grant the pending motions to dismiss, (Doc. Nos. 8; 12). Plaintiffs did not object to the
M&R and the time for filing objections has now expired.

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II.

STANDARD OF REVIEW
The district court may assign dispositive pretrial matters pending before the court to a

magistrate judge for “proposed findings of fact and recommendations.” 28 U.S.C. §
636(b)(1)(B). The Federal Magistrate Act provides that “a district court shall make a de novo
determination of those portions of the report or specific proposed findings or recommendations
to which objection is made.” Id. at § 636(b)(1); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.
1983). “[I]n the absence of a timely filed objection, a district court need not conduct a de novo
review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005) (quoting FED . R. CIV . P. 72 advisory committee’s note).
In its review of a Rule 12(b)(6) motion, “the court should accept as true all well-pleaded
allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan
Labs, Inc. v. Matakari, 7 F.3d 1130, 1134 (4th Cir. 1993). The plaintiff’s “[f]actual allegations
must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). “[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the allegations in the complaint.” Id. at
563. A complaint attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.
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III.

DISCUSSION
A.

Chicago Title Insurance Company’s Rule 12(b)(6) Motion To Dismiss

In its Rule 12(b)(6) Motion To Dismiss, (Doc. No. 8), CTIC argues that Plaintiffs’ Amended
Complaint fails to provide factual support for the allegations listed therein, and fails to state which
causes of action apply to which Defendant. CTIC notes that the allegations in the Amended
Complaint are directed at “Claimant.” (Doc. No. 8 at 3). Claimant is a defined term in the
Amended Complaint referring to a “Qualified Bank Representative.” (Id.). CTIC states that it is
not authorized to act as a bank or financial institution and did not act as a bank or financial
institution or as the representative for a bank or financial institution in connection with the matters
at issue in the Amended Complaint. (Id.).
CTIC states that its role in this transaction was limited to being the original named trustee
on a deed of trust from Kim Narog to LaSalle Bank National Association (a role which ceased on
March 30, 2010 by virtue of the recordation of a Substitution of Trustee) and issuing policies of title
insurance in connection with Narog’s purchase of the property and the loan from LaSalle Bank
National Association. (Id. at 2-3). CTIC contends that the Amended Complaint contains no
allegations regarding any acts, conduct or omissions of CTIC as trustee or any allegations related
to the issuance of title insurance. (Id.). The Court agrees and Chicago Title Insurance Company’s
Rule 12(b)(6) Motion To Dismiss, (Doc. No. 8), is GRANTED.
B.

Federal National Mortgage Association, Bank of America, N.A., BAC Home Loans
Servicing, LP and LaSalle Bank, N.A.’s Motion To Strike And Motion To Dismiss

Defendants Federal National Mortgage Association, Bank of America, N.A., BAC Home
Loans Servicing, LP, and LaSalle Bank N.A. (the “Bank Defendants”) argue in their Motion To
Strike And Motion To Dismiss, (Doc. No. 12), that the Amended Complaint fails to state a claim
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upon which relief may be granted, and fails to set forth a plain statement of the claim showing
entitlement to relief. (Doc. No. 12 at 2).
Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the
... claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 545 (internal quotation and
citation omitted).
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of a cause of action's elements will not do. Factual allegations must be
enough to raise a right to relief above the speculative level on the assumption that all
of the complaint's allegations are true.
Id. The Bank Defendants argue that Plaintiffs fail to state a claim against them for any of the causes
of action cited in the caption of their Amended Complaint, as Plaintiffs’ bare and conclusory
statements fail to state any plausible claim. (Doc. No. 13 at 3). As the Bank Defendants note, all
except the first two paragraphs of the Amended Complaint set forth various discovery requests,
which take the form of requests for production of documents, questions akin to interrogatories,
true/false questions, and a lengthy definitions section relating to the document requests and
interrogatory type questions. (Id. at 5).
Plaintiff’s Amended Complaint fails to allege a single cause of action against the Bank
Defendants. More importantly, as the Bank Defendants note, there is not a single factual allegation
directed at them contained anywhere in the Amended Complaint. (Id.). Therefore, the Bank
Defendants’ Motion To Strike And Motion To Dismiss, (Doc. No. 12), is GRANTED.

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C.

David T. Simpson, Carroll Management Group and Midland Loan Service
Plaintiffs filed their Complaint on September 2, 2011. (Doc. No. 1). The case docket

reflects that a summons was issued by the Clerk of Court on September 2, 2011 for service of the
Complaint on Defendant Midland Loan Service, (Doc. No. 2), and on October 12, 2011 for service
on Carroll Management Group and David T. Simpson, (Doc. No. 6). However, the docket contains
neither (1) a return of summons or proof of service of the Complaint on Defendant nor (2) an
executed waiver of service by Defendant.

Federal Rule of Civil Procedure 4(m) provides as

follows:
If a defendant is not served within 120 days after the complaint is filed, the
court--on motion or on its own after notice to the plaintiff--must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure, the
court must extend the time for service for an appropriate period.
Plaintiffs had until January 3, 2012 to serve their Complaint on all defendants. The time has
now expired. Plaintiffs are hereby warned that if they do not serve their Complaint on the
remaining defendants within fourteen (14) days, their case will be DISMISSED without
prejudice.
D.

Contact Information

Finally, as the Magistrate Judge noted in his M&R, (Doc. No. 18 at 2), Plaintiffs have
failed to keep the Court updated with appropriate contact information since September 22, 2011.
The Clerk’s Office has attempted, unsuccessfully, to send copies of filings to Plaintiffs at the
address provided to the Court. Plaintiffs are ORDERED to provide the Court with updated
contact information within fourteen (14) days of the entry of this Order. Failure to do so will
result in the dismissal of all of Plaintiffs’ claims against all remaining defendants.

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IV.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1.

Defendant Chicago Title Insurance Company’s “Rule 12(b)(6) Motion To
Dismiss,” (Doc. No. 8), is GRANTED;

2.

Defendants Federal National Mortgage Association, Bank of America, N.A.,
BAC Home Loans Servicing, LP, and LaSalle Bank N.A.’s “Motion To Strike
And Motion To Dismiss,” (Doc. No. 12), is GRANTED;

3.

Plaintiffs are warned that if they do not serve their Complaint on the remaining
defendants within fourteen (14) days, their case will be DISMISSED without
prejudice; and

4.

Plaintiffs are ORDERED to provide the Court with updated contact information
within fourteen (14) days of the entry of this Order. Failure to do so will result
in the dismissal of all of Plaintiffs’ claims against all remaining defendants.

Signed: January 17, 2012

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