Nell et al v. Wieland Financial Services LLC et al

Filing 59

ORDER all objections are overruled, the Report and Recommendation is incorporated herein by reference, and the claims as to all defendants are dismissed with prejudice. adopting 47 Report and Recommendations ; granting 16 Motion to Dismiss by Dave Sander, Wieland Financial Services LLC, John Wieland; granting 21 Motion to Dismiss by Sabadell United Bank; and denying 30 Motion to Amend/Correct the complaint by John A Nell, Rebecca L Nell Signed by Honorable Joseph F Anderson, Jr on 3/18/14.(mflo, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
John A. Nell and Rebecca L. Nell,

C/A No. 0:13-cv-00639-JFA

Plaintiffs,
vs.
Wieland Financial Services, LLC; Northstar
Mortgage Group, LLC; John Wieland; Dave
Sander; Beth Loftis; Sabadell United Bank and
its subsidiary Virtual Bank; and John and Jane
Does 1-10.

ORDER

Defendants.
John A. Nell and Rebecca L. Nell (“Plaintiffs”), who are proceeding pro se, bring this
action alleging breach of contract and contending that the defendants engaged in racketeering
activity and securities fraud in connection with the plaintiffs’ mortgage refinance. Plaintiffs seek
treble damages, restitution, costs, and attorney’s fees for their injuries.
The Magistrate Judge assigned to this action1 has prepared a Report and
Recommendation (“Report”) wherein she suggests that this court: (1) grant the motions to
dismiss filed by four of the defendants, Wieland Financial Services, Inc., John Wieland, Dave
Sander, and Sabadell United Bank; and (2) deny Plaintiffs’ motion to amend the complaint. The
Magistrate Judge also notes that Plaintiffs have failed to serve defendants Northstar Mortgage
Group, LLC, and John and Jane Does within 120 days of filing the complaint as required by Fed.

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The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of those portions of the Report to which specific objection is made and the court may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

R. Civ. P. 4(m). Additionally, although defendant Beth Loftis appears to have been served and
has failed to make an appearance, plaintiffs’ complaint does not state a claim for which relief can
be granted, even when plaintiffs’ factual allegations are assumed to be true. Thus, the Magistrate
Judge recommends that the remaining defendants who have not filed a motion to dismiss or
answer also are entitled to dismissal.
The Report sets forth in detail the relevant facts and standards of law on this matter, and
the court incorporates such without a recitation.
As the Magistrate Judge observes in her Report, the plaintiffs’ complaint is 242 pages
long.

It is styled “Breach of Contract Action” and contains an attachment of 21 exhibits

reflecting two loans financed by mortgages on the subject property. The Magistrate Judge
suggests that the factual allegations in the complaint are “rife with legalese and long discussions
of federal monetary policies, intermingled with legal conclusions.”

She suggests that the

primary claim by the plaintiffs, as gleaned from the lengthy complaint, relates to the defendants’
alleged transfers of promissory notes executed by the plaintiffs. This court may take judicial
notice that many of the allegations regarding monetary policy contained in the complaint are
available on the internet and have been included in other civil actions filed on this court’s docket.
The Magistrate Judge suggests that the motions to dismiss should be granted because the
factual allegations of the complaint, when separated from the intermingled legal conclusions, do
not support any cause of action against any of the defendants. The Magistrate Judge also
discusses the appropriate standard by which this court should measure the pleadings of pro se
litigants, and nevertheless concludes that dismissal is proper.
Relying upon the analysis by the court in Demmler v. Bank One NA, No. 2:05-CV-322,
2006 WL 640499, at *3 (S.D. Ohio Mar. 9, 2006), among others, the Magistrate Judge concludes

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that the complaint is “utterly frivolous” and lacking in legal foundation. She concludes that it
would be a waste of judicial resources to delve into the voluminous allegations of the complaint.
Plaintiffs were apprised of their right to object to the Report of the Magistrate Judge.
Plaintiffs have filed three documents now before this court: (1) a set of formal objections to the
Report, ECF No. 53; (2) a memorandum of law “In Support of Plaintiffs’ Right to Present Their
Case,” ECF No. 54; and (3) an “Explanation of Banking Exhibits to Help the Court Understand
Plaintiffs’ Complaint,” ECF No. 55. Finding no merit to any of the arguments advanced in any
of these three pleadings, this court is constrained to agree with the Magistrate Judge that
dismissal for failure to state a claim is appropriate.
Distilled to its essence, the gist of the plaintiffs’ objection memorandum is that the
Magistrate Judge who rendered the Report in this case did not understand the claims asserted.
To this end, the objection memorandum contains extensive personal invective against the
Magistrate Judge, suggesting that she has violated her “fiduciary obligations”;2 that she “is guilty
of fraud”;3 that she should “take a history lesson”;4 that she is “uneducated”;5 that she is guilty of
“displaying her corruption”;6 that she is a member of the American judiciary, which “today is
comparable to the old Soviet Union or even the Judges of the Third Reich”;7 that she is
“performing exactly the same way the uninformed Judges did in the Middle Ages”;8 that her
Report “mak[es] a mockery out of the United States Constitution and the one million men and
women who lost their lives in defense of this country”;9 and that the Judge is improperly

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Objection Memorandum at 3.
Id.
4
Id.
5
Id. at 4.
6
Id. at 5.
7
Id. at 7.
8
Id. at 10.
9
Id.
3

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“creating law from the bench in a conspiratorial effort to side with her brotherhood of bar
members and for the . . . enlargement of her pension account.”10
The objection memorandum also misstates the record in this case, suggesting incorrectly
on page 4 that “the Defendants have never denied one allegation [of the complaint].” The time
for the defendants to admit or deny allegations of the complaint has not arrived. This is because
all defendants, except for one, who have been served, have filed motions to dismiss. The filing
of such motions tolls the time for these defendants to answer.
Plaintiffs’ other pleadings filed in response to the Report also are of no help. The
document styled “Memorandum of Law in Support of Plaintiffs’ Right to Present Their Case”
contains quotations from cases and historical documents with lofty language about the “right to
be heard,” which offer little assistance to this court in analyzing the Report under review here.
In short, this court concludes that the plaintiffs have failed to advance any legitimate
grounds why the Report should not be adopted as the order of this court. Accordingly, all
objections are overruled, and the Report is incorporated herein by reference. This court hereby
dismisses the claims against all of the defendants with prejudice.

IT IS SO ORDERED.

March 18, 2014
Columbia, South Carolina

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Joseph F. Anderson, Jr.
United States District Judge

Id.
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