Boston v. Nationstar Mortgage et al

Filing 4

ORDER and REPORT AND RECOMMENDATION: Plaintiff's 1 Motion for Leave to Proceed In Forma Pauperis is GRANTED. Accordingly, it is ORDERED that judicial officers who render services in this action shall do so as if the costs had been prepaid. The Magistrate Judge RECOMMENDS that the Court DISMISS this action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Objections to R&R due by 4/25/2018. Signed by Magistrate Judge Chelsey M. Vascura on 4/11/2018. (kpt)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

LONNIE BOSTON,
Plaintiff,
Civil Action 2:18-cv-283
Judge James L. Graham
Magistrate Judge Chelsey M. Vascura

v.

NATIONSTAR MORTGAGE, et al.,
Defendants.

ORDER and REPORT AND RECOMMENDATION
Plaintiff, Lonnie Boston, who is proceeding without the assistance of counsel, brings this
action against Nationstar Mortgage; the Franklin County Sheriff; and Bethany Suttinger, an
attorney with the law firm of Lerner Sampson & Rothfuss. As this Court observed in its April 3
Opinion and Order denying Plaintiff’s motion for a temporary restraining order, Plaintiff alleges
that the Franklin County Court of Common Pleas “entered a Decree of Foreclosure without
serving an indispensable party;” that “proper notice of the alleged foreclosure” was not given; and
that there was a failure “to validate the debt.” (ECF No. 2.) Plaintiff purports to assert claims
under the Truth in Lending Act (“TILA”), the Fair Debt Collection Practices Act (the “FDCPA”),
and the Real Estate Settlement Procedures Act (“RESPA”). This matter is before the Court for
consideration of Plaintiff’s Motion for Leave to Proceed In Forma Pauperis, which is
GRANTED. (ECF No. 1.) Accordingly, it is ORDERED that judicial officers who render
services in this action shall do so as if the costs had been prepaid.

This matter is also before the Court for the initial screen of Plaintiff’s Complaint under 28
U.S.C. § 1915(e)(2) to identify cognizable claims and to recommend dismissal of Plaintiff’s
Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2). Having performed the initial screen, for the reasons that follow and those
set forth in this Court’s April 3 Opinion and Order, which the undersigned incorporates by
reference, it is RECOMMENDED that the Court DISMISS this action for failure to state a claim
upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
I.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing
frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490 U.S. 319,
324 (1989)). To address this concern, Congress included subsection (e)1, which provides in
pertinent part as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid,
the court shall dismiss the case at any time if the court determines that-*

*

*

(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
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Formerly 28 U.S.C. § 1915(d).
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28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte
dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or
upon determination that the action fails to state a claim upon which relief may be granted.
When the face of the complaint provides no basis for federal jurisdiction, the Court may
dismiss an action as frivolous and for lack of subject matter jurisdiction under both 28 U.S.C.
§ 1915(e)(2)(B) and Fed. R. Civ. P. 12(h)(3). Williams v. Cincy Urban Apts., No. 1:10-cv-153,
2010 WL 883846, at *2 n.1 (S.D. Ohio Mar. 9, 2010) (citing Carlock v. Williams, 182 F.3d 916,
1999 WL 454880, at *2 (6th Cir. June 22, 1999) (table)).
Further, to properly state a claim upon which relief may be granted, a plaintiff must satisfy
the basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule
8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual
demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,
727 F.3d 502, 503 (6th Cir. 2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of
action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
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complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its
face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “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. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank , 727 F.3d at 504 (citations omitted). Further, the
Court holds pro se complaints “‘to less stringent standards than formal pleadings drafted by
lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., 374 F. App’x 612, 614 (6th Cir. 2010)
(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however, has
limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v. Gen.
Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594
(6th Cir. 1989)).
II.
Plaintiff seeks only equitable relief. (See ECF No. 1-1.) Plaintiff’s allegations in support
of the causes of action identified in the Complaint are as follows in their entirety:
On or about October 29, 2014, The Franklin County Court Civil Division entered a
Decree of Foreclosure without serving an indispensable party.
Defendant[s’] failed to give proper notice of the alleged foreclosure, failed to join
an indispensable party who is a fee simple title holder[,] failed to validate the debt
as required via RESPA.
Defendant Nationstar filed [their] own motion to vacate the judgement [sic] and the
Franklin County Court failed to response [sic] to the motion to vacate.
Defendant[s] continue to proceed with a fraudulent foreclosure sale of Plaintiff’s
property, when they have knowledge of the violations.
(ECF No. 1.)

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This Court concluded in its April 3 Opinion and Order that the Rooker –Feldman doctrine
prevents this Court from exercising jurisdiction over the subject matter of Plaintiff’s claims for
equitable relief. (See ECF No. 2.) Moreover, Plaintiff’s allegations do not state a claim under
any of the three federal statutes that Plaintiff cites.
A. TILA
TILA “provides statutory penalties for failure to make certain disclosures required under
the statute.” Thielen v. GMAC Mortg. Corp., 671 F. Supp. 2d 947, 953 (E.D. Mich. 2009). “One
of the primary purposes of TILA is ‘to assure a meaningful disclosure of credit terms so that the
consumer will be able to compare more readily the various credit terms available to him and avoid
the uninformed use of credit.’” Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002)
(quoting 15 U.S.C. § 1601(a)). None of Plaintiff’s allegations in this action relate to the
disclosure of credit terms. Accordingly, the Complaint does not raise a claim under TILA upon
which this Court may grant relief.
B. FDCPA
The FDCPA prohibits debt collectors, as defined in 15 U.S.C. § 1692a(6), from making
any of a number of enumerated false representations or threats in connection with the collection of
a debt. 15 U.S.C. § 1692e. Plaintiff has neither alleged that any of the Defendants are debt
collectors, as defined in § 1692a(6), nor alleged that any of the Defendants made one of the false
representations or threats enumerated in § 1692e. Accordingly, the Complaint does not raise a
claim under the FDCPA upon which this Court may grant relief. See Wallace v. Washington Mut.
Bank, F.A., 683 F.3d 323, 326 (6th Cir. 2012) (claim under FDCPA requires that defendant must
be debt collector and must have violated one on the prohibitions of § 1692e).

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C. RESPA
RESPA requires (a) mortgagees to make certain disclosures to mortgage loan applicants,
(b) loan servicers to provide certain notices to borrowers, and (c) loan servicers to provide
responses to certain borrower inquiries. See 12 U.S.C. § 2605. Plaintiff alleges, specifically,
that Defendants violated RESPA by failing to give proper notice of the alleged foreclosure, failing
to join an indispensable party who is a fee simple title holder, and failing to validate the debt.
The undersigned first observes that Plaintiff has not alleged that either the Franklin County
Sheriff or Bethany Suttinger is a mortgage lender or a loan servicer. On the basis of Plaintiff’s
allegations, therefore, neither the Sheriff nor Ms. Suttinger is subject to liability under RESPA.
They are entitled to the dismissal of Plaintiff’s RESPA claim against them.
The undersigned also observes that Plaintiff has not alleged that Nationstar Mortgage
failed to make required disclosures at the time of the mortgage application or failed to respond to a
borrower inquiry as required by RESPA. Plaintiff’s claim must, therefore, be that Nationwide
Mortgage failed to provide a required notice to a borrower, in this case, Plaintiff. On the basis of
Plaintiff’s allegations, construed liberally, the undersigned concludes that Plaintiff’s RESPA claim
against Nationstar Mortgage is based on its alleged failure to notify Plaintiff of the foreclosure and
to validate the debt. This conclusion rests on an assumption that Nationstar Mortgage is the loan
servicer for the mortgage to which the foreclosure is connected; Plaintiff has not alleged as much.
In any event, Plaintiff has not stated a RESPA claim against Nationstar Mortgage on which this
Court may grant relief.
RESPA does not require a loan servicer to validate a debt absent a “qualified written
request” from a borrower. See 12 U.S.C. § 2605(e)(1)(A).

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The Complaint does not include an

allegation that Plaintiff made a qualified written request or that Nationstar Mortgage ignored a
qualified written request. Accordingly, Plaintiff has not alleged a RESPA violation on the basis
of the alleged failure to validate a debt.
RESPA does not require a specific notice of foreclosure. Regulations promulgated under
the authority of RESPA require loan servicers to provide certain notices to delinquent borrowers,
but those notices do not include notice of foreclosure. See 12 C.F.R. § 1024.39(b). Plaintiff has
not alleged a RESPA violation on the basis of Nationstar Mortgage’s alleged failure to provide
notice of foreclosure.
III.
For those reasons and the reasons set forth in the Court’s April 3 Opinion and Order, it is
RECOMMENDED that the Court DISMISS this action pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii).
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A Judge of this Court shall make a de novo determination of those
portions of the Report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may
recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

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The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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