Sayman et al v. Lehman Brothers FSB et al

Filing 32

MEMORANDUM AND RECOMMENDATIONS on 24 MOTION to Dismiss for Failure to State a Claim filed by Volkswagen Bank USA ( Objections to M&R due by 2/28/2014), ORDER granting re 26 MOTION Request for Judicial Notice. Signed by Magistrate Judge David S. Cayer on 2/11/2014. (Pro se litigant served by US Mail.)(chh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO: 3:13-CV-288-RJC-DSC
ROBERT W. SAYMAN and
MARY B. SAYMAN,

)
)
)
Plaintiffs,
)
)
v.
)
)
LEHMAN BROTHERS FSB,
)
VOLKSWAGEN BANK USA, NATIONSTAR
MORTGAGE, LLC,
)
)
Defendants.
)

)

MEMORANDUM AND RECOMMENDATION AND ORDER
THIS MATTER is before the Court on “Defendant Volkswagen Bank USA’s Motion to
Dismiss … Amended Complaint” (document #24) and “Motion for Judicial Notice” (document
#26), both filed December 9, 2013, and the parties’ briefs and exhibits. See documents ##24-26,
30 and 31.
This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1), and the Motion is now ripe for the Court’s consideration.
Having fully considered the arguments, the record, and the applicable authority, the
undersigned will grant Defendant’s “Motion for Judicial Notice” and respectfully recommend
that the Motion to Dismiss be granted, as discussed below.

I. FACTUAL AND PROCEDURAL BACKGROUND
On May 10, 2013, Plaintiffs filed their Complaint which as amended purports to state
claims for breach of contract, tort, and federal RICO violations. Plaintiffs’ claims arise from a
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real estate closing that occurred on May 10, 2006. At closing, Plaintiffs executed Notes and
Deeds of Trust. The Note and Deed of Trust on the “First Mortgage” is attached to the
Complaint and bears the date of July 18, 2007.

Plaintiffs accuse Defendants of improperly

“monetizing” those documents.
On December 9, 2013, Defendant Volkswagen Bank USA filed its Motion to Dismiss
alleging, inter alia, that Plaintiffs’ claims are barred by the applicable statutes of limitations. In
its “Motion for Judicial Notice,” Defendant asks the Court to consider documents executed by
Plaintiffs and recorded by the Mecklenburg County Register of Deeds.

The Court has

considered those documents. Accordingly, Defendant’s Motion for Judicial Notice is granted.
Defendant’s Motion to Dismiss has been fully briefed and is ripe for determination.

II. DISCUSSION
In reviewing 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. Matkari, 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
enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (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.
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In Iqbal, the Supreme Court articulated a two-step process for determining whether a
complaint meets this plausibility standard. First, the court identifies allegations that, because
they are no more than conclusions, are not entitled to the assumption of truth. Id. “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550 U.S. at 555) (allegation that government officials adopted
challenged policy “because of” its adverse effects on protected group was conclusory and not
assumed to be true). Although the pleading requirements stated in “Rule 8 [of the Federal Rules
of Civil Procedure] mark[] a notable and generous departure from the hyper-technical,
code-pleading regime of a prior era ... it does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions.” Id. at 678-79.
Second, to the extent there are well-pleaded factual allegations, the court should assume
their truth and then determine whether they plausibly give rise to an entitlement to relief. Id. at
679. “Determining whether a complaint contains sufficient facts to state a plausible claim for
relief “will ... be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. “Where the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged-but it has not
‘show[n]’-‘that the pleader is entitled to relief,’” and therefore should be dismissed. Id. (quoting
Fed. R. Civ. P. 8(a)(2)). In other words, if after taking the complaint’s well-pleaded factual
allegations as true, a lawful alternative explanation appears a “more likely” cause of the
complained of behavior, the claim for relief is not plausible. Id.
Accepting the factual allegations of the Amended Complaint as true, Plaintiffs’ purported
claims are barred by the applicable statutes of limitations. In North Carolina, a breach of
contract claim must be brought within three years. N.C. Gen. Stat. § 1-52.
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The statute of

limitations for conversion is three years. N.C. Gen. Stat. § 1-52(4).

A claim for fraud and

misrepresentation must be brought within three years of the time Plaintiffs knew or reasonably
should have known of the facts giving rise to the fraud and misrepresentation. N.C. Gen. Stat. §
1-52 (three year statute of limitations for fraud and misrepresentation). “Where a person is
aware of facts and circumstances which, in the exercise of due care, would enable him or her to
learn of or discover the fraud, the fraud is discovered for the purposes of the statute of
limitations.” Jennings v. Lindsey, 69 N.C. App. 710, 715, 318 S.E.2d 318, 321 (1984) (citations
omitted). A private suit under the federal RICO statute is governed by a four-year statute of
limitations, which runs from the date when Plaintiffs discovered or should have discovered their
alleged injury. Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143 (1987);
Klehr v. A.O. Smith Corp., 521 U.S. 179, 183. 138 L.Ed.2d 373, 117 S. Ct. 1984 (1997);
Potomac Elec. Power Co. v. Elec. Motor & Supply, Inc., 262 F.3d 260 (4th Cir. 2001).
A review of the documents submitted here shows that all events giving rise to
Plaintiffs’ purported claims occurred on or before August 2, 2007. Plaintiffs were aware or
reasonably should have been aware of all of those events no later than sometime in August 2007.
Plaintiffs’ Complaint was not filed until October 23, 2013. This falls well outside the applicable
statutes of limitations. For these reasons, Defendant’s Motion to Dismiss should be granted.

III. ORDER
IT IS HEREBY ORDERED that:
1. Defendant’s “Motion for Judicial Notice” (document #26) is GRANTED.
2. All further proceedings in this action, including all discovery, are STAYED pending
the District Judge’s ruling on this Memorandum and Recommendation and Order.
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IV. RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that
“Defendant Volkswagen Bank USA’s Motion to Dismiss … Amended Complaint” (document
#24) be GRANTED.

V. NOTICE OF APPEAL RIGHTS
The parties are hereby advised that, pursuant to 28 U.S.C. §636(b)(1)(c), written
objections to the proposed findings of fact and conclusions of law and the recommendation
contained in this Memorandum must be filed within fourteen (14) days after service of same.
Failure to file objections to this Memorandum with the District Court constitutes a waiver of the
right to de novo review by the District Judge. Diamond v. Colonial Life, 416 F.3d 310, 315-16
(4th Cir. 2005); Wells v. Shriners Hosp., 109 F.3d 198, 201 (4th Cir. 1997); Snyder v. Ridenour,
889 F.2d 1363, 1365 (4th Cir. 1989).

Moreover, failure to file timely objections will also

preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140, 147
(1985); Diamond, 416 F.3d at 316; Page v. Lee, 337 F.3d 411, 416 n.3 (4th Cir. 2003); Wells,
109 F.3d at 201; Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); United States v.
Schronce, 727 F.2d 91 (4th Cir. 1984).
The Clerk is directed to send copies of this Memorandum and Recommendation and
Order to the pro se Plaintiffs; to defense counsel; and to the Honorable Robert J. Conrad, Jr.
SO RECOMMENDED AND ORDERED.

Signed: February 11, 2014

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