Perez v. Wells Fargo Bank, N.A.

Filing 9

ORDER granting 6 Motion to Dismiss. Signed by District Judge Max O. Cogburn, Jr on 10/29/2012. (Pro se litigant served by US Mail.)(blf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12cv580
ROBERT PEREZ,

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

Plaintiff,
Vs.
WELLS FARGO BANK, N.A., d/b/a
WELLS FARGO HOME MORTGAGE,
d/b/a AMERICA’S SERVICING
COMPANY,
Defendant.
_______________________________

MEMORANDUM
OF DECISION AND
ORDER

THIS MATTER is before the court on defendant’s Motion to Dismiss (#6). In
accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),1 plaintiff, who is
proceeding pro se, was cautioned that defendant had moved to dismiss this action and that
he had an opportunity to file a written response to that motion. Plaintiff did not respond.
I.
Defendant has filed a Motion to Dismiss contending that plaintiff has failed to state
a cause of action against it. Rule 12(b)(6), Federal Rules of Civil Procedure, provides for
dismissal where a party has failed to state a cause of action as a matter of law. In Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Court held that to survive a Rule
12(b)(6) motion to dismiss, a plaintiff must allege facts in his complaint that “raise a right
to relief above the speculative level.” Id., at 555.
[A] plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to
relief” requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do . . . .
1

While Roseboro v. Garrison involves motions for summary judgment, this court
finds it helpful to advise pro se litigants of their right to respond to a motion to dismiss.
-1-

Id. (second alteration in original; citation omitted). Further, a complaint will not survive Rule
12(b)(6) review where it contains “naked assertion[s] devoid of further factual
enhancement.” Id., at 557.

Instead, a plaintiff must now plead sufficient facts to state a

claim for relief that is “plausible on its face.” Id., at 570 (emphasis added).The court again
visited the Rule 12(b)(6) pleading standard in Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct.
1937 (May 18, 2009). In Ashcroft, the Court held that Rule 8 “demands more than an
unadorned, the defendant-unlawfully-harmed-me accusation.” Id., S.Ct., at 1949. The Court
explained that, “to survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (citing
Twombly, supra; emphasis added). What is plausible is defined by the Court:
[a] claim has facial plausibility when the plaintiff pleads sufficient factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.
Id. This “plausibility standard” requires “more than a sheer possibility that a defendant has
acted unlawfully.” Id. Thus, a complaint fall short of the plausibility standard where plaintiff
“pleads facts that are ‘merely consistent with’ a defendant’s liability . . . .” Id.
While the court accepts plausible factual allegations made in the complaint as true and
considers those facts in the light most favorable to plaintiff in ruling on a motion to dismiss,
a court "need not accept as true unwarranted inferences, unreasonable conclusions, or
arguments." Eastern Shore Mkt.'s Inc. v. J.D. Assoc.'s, LLP, 213 F. 3d 175, 180 (4th Cir.
2000).
II.
In this action, plaintiff seeks to enjoin a foreclosure proceeding in state court.
Specifically, plaintiff seeks through injunction and raising certain federal claims to avoid
repayment of amounts due to Wells Fargo under a $122,150 mortgage loan, which is
-2-

reflected note dated September 29, 2004, and secured by a Deed of Trust of the same date
on real property located at 18813 Coachman's Trace, Cornelius, North Carolina.
On August 6, 2012, plaintiff filed his pro-se Complaint in Mecklenburg County, North
Carolina Superior Court, seeking damages for alleged violations of the Real Estate
Settlement Procedures Act, 12 U.S.C. 2601, et seq. (RESPA) and the Truth In Lending Act,
15 U.S.C. 1601 (TILA) in connection with consummation of theloan underlying the Note and
Deed of Trust. Plaintiff seeks "[r]escission of the entire Mortgage and note amounting to
clear title to property with fixtures." Complaint (#1). Plaintiff also seeks injunctive relief
to permanently enjoin the foreclosure of the Cornelius property. Id.
On September 7, 2012, defendant removed this action to this court asserting federal
question jurisdiction. Notice of Removal (#1). On September 10, 2012, plaintiff sold the
property. See Plaintiff’s Exhibit C.
III.
In accordance with Rule 12(b)(6), the court has carefully reviewed plaintiff’s
Complaint and determined that he has attempted to allege 24 claims under RESPA and
TILA. As defendant has shown, all of these claims are time barred as they alleged occurred
some eight years prior to plaintiff bringing his action in state court. Section 2614 of RESPA
provides that claims for violations of § 2605 must, at the latest, be brought within three years from
the date of the occurrence of the violation:
§ 2614. Jurisdiction of courts; limitations
Any action pursuant to the provisions of section 2605, 2607, or 2608 of this title may
be brought in the United States district court or in any other court of competent
jurisdiction, for the district in which the property involved is located, or where the
violation is alleged to have occurred, within 3 years in the case of a violation of
section 2605 of this title and 1 year in the case of a violation of section 2607 or 2608
of this title from the date of the occurrence of the violation, except that actions
brought by the Secretary, the Attorney General of any State, or the insurance
commissioner of any State may be brought within 3 years from the date of the
occurrence of the violation.
-3-

12 U.S.C. § 2614. See Booker v. Washington Mut. Bank, 2007 U.S. Dist. LEXIS 9632, at *11
(M.D.N.C. Feb. 9, 2007). Review of the pleadings reveals that the events upon which plaintiff’s
federal claims are founded all occurred on or before September 29, 2004. Inasmuch as plaintiffs
did not file this suit until August6, 2012 – more than “3 years in the case of a violation of section
2605 ...” 12 U.S.C. § 2607 – the three-year statute of limitation had, therefore, run at the time this
action was filed. Likewise, plaintiff’s TILA and any Regulation Z claims are subject to the one-year
statute of limitations in 15 U.S.C. § 1640(e), which provides that "[a]ny action under this section
may be brought ... within one year from the date of the occurrence of the violation." See 12 C.F.R.
§ 226.1(e); Cordon v. Aurora Loan Servs., Inc., 2010 WL 3418214, at *6 (E.D. Va. Aug. 26, 2010)
(the TILA statute of limitations applies to Regulation Z). The statutes of limitations under TILA and
RESPA begin to run on the "date of the occurrence of the violation." 12 U.S.C. § 2614; 15 U.S.C.
§ 1640(e). Thus, all of plaintiff’s federal substantive claims are time barred.
Finally, plaintiff’s 25th claim for injunctive relief, enjoining foreclosure of the property,
is patently moot as defendant has proffered a public record showing that plaintiff has
conveyed the property to third parties. Such action for injunctive relief is moot because “
plaintiff must make a clear showing that he will likely be irreparably harmed absent . . . [injunctive]
relief.” White v. Miller, 2011 WL 1168045, *2 (D.S.C. Mar. 7, 2011)(citation deleted).

As

plaintiff no longer an owner of the property, there is no possible harm and thus nothing to
enjoin.

-4-

ORDER
IT IS, THEREFORE, ORDERED that defendant's Motion to Dismiss (#6) is
GRANTED, and this action is DISMISSED in its entirety.

Signed: October 29, 2012

-5-