Federal Housing Finance Agency et al v. Boyter

Filing 2

ORDER that this matter is REMANDED in accordance with § 1915(e)(2)(B)(i) for lack of subject matter jurisdiction to the North Carolina General Court of Justice, Superior Court Division, for Union County. Signed by Chief Judge Frank D. Whitney on 6/8/2015. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:15-CV-00249-FDW-DCK
FEDERAL
HOUSING
FINANCE
AGENCY,
SUBSTITUTE
TRUSTEE
SERVICES, INC., and HUTCHENS LAW
FIRM, LP,
Plaintiffs,
vs.
DIANNE BOYTER,
Defendant.

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ORDER

THIS MATTER is before the Court sua sponte on Pro Se Defendant’s Notice of Removal.
(Doc. No. 1). For the reasons stated below, this case is REMANDED to the North Carolina
General Court of Justice, Superior Court Division, for Union County.
I.

BACKGROUND

This civil action arises from foreclosure proceedings brought against pro se Defendant
Dianne Boyter (“Defendant”) in the North Carolina General Court of Justice, Union County
Superior Court, as to real property located at 5909 Four Wood Drive, Matthews, North Carolina,
28104 (the “Subject Property”). (Doc. No. 1). According to the Notice of Removal, on or about
August 17, 2006, Defendant entered into a real estate transaction with Amerisouth Mortgage
Company for the amount of $303,200.00. (Doc. No. 1, pp. 7, 9). Federal National Mortgage
Association (“FNMA”) later became the holder of the promissory note and owner of the deed of
trust (Doc. No. 1, p. 9). On behalf of FNMA, Plaintiffs instituted a foreclosure action against
Defendant seeking to foreclose on the Subject Property. (Doc. No. 1, ¶ 12). Proceedings in this
matter are ongoing, and a hearing before the Clerk of Superior Court for Union County on
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Plaintiffs’ Motion to Withdraw Voluntary Dismissal is scheduled for Monday, June 8, 2015. (Doc.
No. 1, p. 13).
II.

ANALYSIS

The existence of subject matter jurisdiction is a threshold issue. While there is no pending
motion to dismiss this matter for lack of subject matter jurisdiction, “it is well-recognized in our
jurisprudence that the issue of subject matter jurisdiction may be raised sua sponte.” Unitrin Auto
and Home Ins. Co. v. Bastida, No. 3:09-cr-00217, 2009 WL 3591190, at *1 (W.D.N.C. Oct. 26,
2009) (citing Contrick v. Ryan, 540 U.S. 443, 455 (2004)). “The subject matter jurisdiction of
federal courts is limited and the federal courts may exercise only that jurisdiction which Congress
has prescribed.” Chris v. Tenet, 221 F.3d 648, 655 (4th Cir. 2000) (citing Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Absent a proper basis for subject matter
jurisdiction, a case must be dismissed. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 96
(1998); accord Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999); Evans v.
B.F. Perkins Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The party seeking federal
jurisdiction has the burden of proving that subject matter jurisdiction exists.

Richmond,

Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
As noted above, this case arises out of a foreclosure conducted under Chapter 45 of the
North Carolina General Statutes. Foreclosure actions brought under state law do not give rise to
federal question subject matter jurisdiction. See e.g., Jennifer Belter Formichella, PLLC, 2012
WL 2501110, *2 (citing City of Durham v. Wadsworth, 2009 WL 186174 (M.D.N.C. 2009)
(remanding tax foreclosure action); McNelly v. Moab Tiara Cherokee Kituwah Nation Chief, 2008
WL 4166328 (W.D.N.C. 2008) (nothing in “simple foreclosure action of real property … suggests
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the presence of a federal question”)); Trustee Services of Carolina, LLC v. Rivera, 2012 WL
1645534, *2 (W.D.N.C. May 2, 2012) (same)).
Furthermore, the Court notes that dismissal is also appropriate under the Younger
abstention doctrine, which provides that abstention is proper in federal court when (1) there is an
ongoing state court proceeding; (2) the proceeding implicates important state interests; and (3) the
plaintiff has an adequate opportunity to present the federal claims in the state proceeding. See
Younger v. Harris, 401 U.S. 37 (1971); Emp’rs Res. Mgmt. Co. v. Shannon, 65 F.3d 1126, 1134
(4th Cir. 1995).
Here, Defendant’s Notice of Removal and exhibits attached to this Notice reveal that there
is an ongoing foreclosure proceeding in the North Carolina General Court of Justice for Union
County regarding foreclosure of the Subject Property. (Doc. No. 1). Furthermore, this case
concerning the ongoing foreclosure matters clearly implicates important state interests. See Toney
v. LaSalle Bank Nat’l Ass’n, 896 F. Supp. 2d 455, 476 (D. S.C. 2012) (citing Shaffer v. Heitner,
433 U.S. 186, 207-08 (1977) (recognizing a state’s “strong interests in assuring the marketability
of property within its borders[ ] and in providing a procedure for peaceful resolution of disputes
about the possession of that property”) (footnote omitted in original); Sergeon v. Home Loan Ctr.,
Inc., No. 3:09-CV-01113-J-32JBT, 2010 WL 5662930 (collecting cases applying Younger
abstention in light of a pending state foreclosure proceeding); Barkowski v. Fremont Inv. & Loan
of Anaheim, Cal., 368 F. Supp. 2d 822, 828 (N.D. Ohio 2005 (applying Younger abstention in the
context of a pending state foreclosure proceeding); Prindable v. Ass’n of Apt. Owners of 2987
Kalakaua, 304 F. Supp. 2d 1245, 1262 (D. Haw. 2003) (finding that foreclosure and ejectment
proceedings were important state interests under Younger)). Finally, Defendant has an adequate
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state forum to defend herself against any claims brought against her in this matter. In fact, as
previously noted, Defendant is currently a party to foreclosure proceedings instituted by Plaintiffs
and currently pending in North Carolina State Court. Under North Carolina law, a clerk hearing a
foreclosure of a deed of trust by power of sale must find: (i) a valid debt of which the foreclosing
party is the holder; (ii) default; (iii) right to foreclose by power of sale under the debt instrument;
(iv) notice to all parties entitled to it; (v) compliance with various consumer-protection notice
provisions; and (vi) that the debtor is not an active-duty member of the armed services. N.C. Gen.
Stat. § 45-21.16(d). Decisions of the clerk under N.C. Gen. Stat. §45-21.1 are appealable to the
superior court within ten days and become final, non-appealable orders if not appealed by the
deadline. Phil Mechanical Constr. Co. v. Hillier, 72 N.C. App. 318, 325 (1985)).
Accordingly, any claims or defenses brought by Defendant in this case must be addressed
by the clerk in the foreclosure proceedings currently pending in Union County. Moreover, North
Carolina law specifically provides Defendant with a means to appeal the clerk’s decision, should
Defendant find such action necessary after the clerk renders her decision. Thus, dismissal is also
appropriate under the Younger abstention doctrine.
The Court also notes that the present action is one of many similar actions filed by
Defendant with this Court and the United States Bankruptcy Court in an apparent effort to delay
the above-referenced foreclosure proceedings, which were originally initiated against Plaintiff in
February 2011. (Doc. No. 1, ¶ 2). According to the Court’s review of its records and the materials
filed along with the present Notice of Removal, on August 29, 2011, Defendant originally filed an
action to quiet title to the real property at issue in the present matter, i.e., 5905 Four Wood Drive,
Matthews, North Carolina 28104. See Boyter v. Bank of America, N.A., 3:11-cv-00412. In that
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case, Defendant sought to have the deed at issue in the present action declared a nullity and the
holder of the note “forever enjoined from foreclosing on subject property.” Id. On December 27,
2011, Defendant voluntarily dismissed that case without prejudice. Id., Doc. No. 3. Shortly
thereafter, on March 26, 2012, Defendant filed a second action to quiet title with this Court, which
concerned the same foreclosure proceedings at issue in the present matter. See Boyter v. Banker
of America Corp., 3:12-cv-00189. In that case, Defendant sought to have “the American Mortgage
Deed of Trust be declared a nullity by this Court,” and to have the defendants in that case “forever
enjoined from foreclosing on subject property.” Id. at Doc. No. 28, p. 2. In reviewing the
Complaint, United States Magistrate Judge David Keesler found, “[t]he crux of Plaintiffs’ action
seems to be to prevent Defendants from foreclosing on their property.” Id. at p. 4. On October 9,
2012, Judge Keesler ultimately concluded “that Plaintiffs are attempting to avoid the original
jurisdiction granted to the Clerk of Superior Court of Union County, North Carolina,” held that
the Court lacked subject matter jurisdiction over the case, and recommended that the case be
dismissed. Id. at pp. 7-8. United States District Court Judge Robert Conrad subsequently affirmed
Judge Keesler’s Order, and the case was dismissed from this Court on November 20, 2012. See
id. at Doc. No. 29.
Interestingly, on September 20, 2012, while the case referenced immediately above was
pending before Judges Conrad and Keesler, Defendant filed a separate complaint, again
concerning the foreclosure at issue in the present case. See Boyter v. Moynihan et al., 3:12-cv00586. In his order granting dismissal of Plaintiff’s [Defendant’s] complaint, United States
District Court Judge Max Cogburn stated that “plaintiff [Defendant] attempts to sue the bank, bank
officials, the law firm assisting the bank, and the substitute trustee service that were involved in
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the foreclosure of plaintiff’s home in Union County, North Carolina. This is not plaintiff’s first
attempt to do so, as she has filed two other actions in this court against these same defendants as
well as attempted to remove the state foreclosure proceeding to this court.” Id., Doc. No. 35.
Finally, on March 26, 2013, in a Notice of Removal strikingly similar to the present Notice
of Removal, Defendant sought removal of the same state foreclosure proceedings at issue in the
present case and the cases described above. See Boyter v. Hutchens, Senter, Kellam & Pettit, P.A.,
3:13-cv-00201. In his March 29, 2013 order remanding that case for lack of subject-matter
jurisdiction, Judge Cogburn found that “plaintiff [was] attempting to remove from state court a
foreclosure proceeding lodged against her.” Id. at Doc. No. 3.
Along with these matters filed with the United States District Court, Defendant has also
filed numerous bankruptcy petitions with the United States Bankruptcy Court for the Western
District of North Carolina. In a December 5, 2013 Order entered by United States Bankruptcy
Judge Laura Beyer, Judge Beyer found that the case before her was “the pro se Debtor’s (i.e.,
Defendant’s) third bankruptcy case in the last fourteen months.” See In re: Dianne Berghmans
Boyter, Case No. 13-bk-32506, Doc. No. 10. After noting that both of Defendant’s prior two cases
were voluntarily dismissed within two months of Defendant filing the petitions, and after finding
that the petition before her was “bare-bones” and “without most of the required schedules and
statements,” Judge Beyer stated, “it appears that the Debtor [Defendant] may have filed this case
in bad faith and that it may be an abuse of the bankruptcy process.” Id. Consequently, Judge
Beyer ordered Defendant to appear and show cause why her case should not be dismissed and
“why she should not be barred from filing additional bankruptcy cases in the future.”

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Id.

Ultimately, Defendant filed a motion seeking to be dismissed from the case, and the case was
voluntarily dismissed on March 11, 2014. Id., Doc. No. 69.
Based on the above findings exhibiting Defendant’s blatant and egregious abuse of the
judicial process in filing numerous frivolous lawsuits related to the foreclosure of the Subject
Property over the course of more than four years, the Court warns Defendant that submitting
further frivolous filings to the Court could result in Defendant being held in contempt of Court.
III.

CONCLUSION

For the above reasons, this matter is REMANDED in accordance with § 1915(e)(2)(B)(i)
for lack of subject matter jurisdiction to the North Carolina General Court of Justice, Superior
Court Division, for Union County. The Clerk of Court is respectfully directed to send a certified
copy of this Order, along with Document 1 filed in this matter, to the Clerk of Superior Court for
Union County, 400 North Main Street, Monroe, North Carolina, 28112.
Additionally, for the reasons stated herein, Defendant is ordered not to submit future
frivolous filings to the Court. Defendant’s failure to follow this Order could result in her being
held in contempt of court. Moreover, Defendant is hereby put on notice that if she submits further
frivolous filings to this Court, the Court will consider imposing a prefiling injunction on
Defendant.1

IT IS SO ORDERED.

The Court notes that Petitioners are free to submit non-frivolous filings to the Court. Federal courts “should not in
any way limit a litigant’s access to the courts absent exigent circumstances, such as a litigant’s continuous abuse of
the judicial process by filing meritless and repetitive actions.” Thomas v. Fulton, 260 Fed. Appx. 594, 586 (4th Cir.
2008) (quoting Cromer v. Kraft Foods N. Am. Inc., 390 F.3d 812, 817 (4th Cir. 2004)). However, “[f]ederal courts
have the authority to issue prefiling injunctions against vexatious litigants.” Id. (citing Cromer, 390 F.3d at 817).
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Signed: June 8, 2015

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