Bartley v. Wells Fargo Bank NA et al
Filing
69
OPINION and ORDER adopting 51 Report and Recommendation; granting 28 Motion to Dismiss for Failure to State a Claim; granting 24 Motion to Dismiss; terminating 58 Motion for Extension of Time. Signed by Honorable Cameron McGowan Currie on 9/2/2015. (cbru, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Vanessa D. Bartley,
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Plaintiff,
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-versus)
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Wells Fargo Bank, NA; Deutsche Bank
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National Trust Company, as Trustee for HSI )
Assets Loan Obligation Trust 2007-WFI,
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Mortgage Pass Through Series 2007 WF1; )
and Rogers Townsend & Thomas PC,
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Defendants.
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___________________________________ )
Civil Action No. 3:14-3814-CMC-SVH
OPINION and ORDER
This matter is before the court on Plaintiff’s pro se complaint relating to a mortgage on
property located at 68 Lillifield Drive in Elgin, South Carolina. Plaintiff sues Wells Fargo Bank,
N.A., Deutsche Bank National Trust Company, as Trustee for HSI Asset Loan Obligation Trust
2007-WF1, Mortgage Pass-Through Certificates, Series 2007-WF1 (“Bank Defendants”), and
Rogers Townsend & Thomas PC (“RTT”).
I. BACKGROUND
On September 29, 2006, Plaintiff borrowed $319,580.00 from Defendant Wells Fargo
(hereinafter referred to as the “Loan”). The Loan was evidenced by a Balloon Note (hereinafter
referred to as the “Note”) and secured by a Mortgage given by Plaintiff in favor of Wells Fargo and
recorded on October 2, 2006 in the Kershaw County Register of Deeds in Book 2047 at Page 251
(hereinafter referred to as the “Mortgage”). The Mortgage encumbers certain real property located
at 68 Lillifield Drive in Elgin, South Carolina, 29045 (hereinafter referred to as the “Property”).
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Subsequently, on or about October 30, 2007, Wells Fargo assigned all right, title and interest
in the Note and the Mortgage to Deutsche Bank National Trust Company, as Trustee for HSI Assets
Loan Obligation Trust 2007-WFI, Mortgage Pass Through Series 2007 WF1 (“HSI Trust”), and the
Assignment of Mortgage was recorded in the Kershaw County Register of Deeds Office in Mortgage
Book 2047 at Page 251. A Corrective Assignment of Mortgage dated June 24, 2014 was recorded
in the Kershaw County Register of Deeds office on June 26, 2014 to correct a scrivener’s error in
the name of the assignee.
On October 25, 2007, HSI Trust, as owner and holder of the Note and Mortgage, initiated
a foreclosure action against Plaintiff in the Kershaw County Court of Common Pleas. This 2007
foreclosure action was voluntarily dismissed without prejudice. On September 24, 2009, HSI Trust
initiated a second foreclosure action against Plaintiff in the Kershaw County Court of Common
Pleas. Like the 2007 foreclosure action, the 2009 foreclosure action was voluntarily dismissed
without prejudice. Neither foreclosure action resulted in any foreclosure decree and/or judgment
against Plaintiff. Currently, there is no pending foreclosure action against Bartley which relates to
the subject Property.
Plaintiff and Defendant Wells Fargo have entered into three loan modification agreements,
the most recent of which was executed in 2011.
Plaintiff filed suit in this court on September 30, 2014, asserting the following causes of
action against Defendants: (1) breach of fiduciary duty; (2) underwriting violations; (3) predatory
lending violations; (4) predatory mortgage lending; (5) predatory mortgage servicing; (6) violations
of the Real Estate Settlement Procedures Act (“RESPA”); (7) legal standing; (8) violations of the
Fair Debt Collection Practices Act (“FDCPA”); (9) violations of the Truth in Lending Act (“TILA”);
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(10) Consumer Protection Act violations; (11) violation of the Unfair and Deceptive Trade Practices
Act, F.S. 501.201, et seq.; (12) fraud; (13) fraud in the inducement; (14) violation of the Home
Ownership and Equity Protection Act (“HOEPA”); and (15) unconscionable acts. Both RTT and
the Bank Defendants filed motions to dismiss, and on July 27, 2015, the Magistrate Judge to whom
this matter was assigned for pretrial matters issued a Report and Recommendation (“Report”)
recommending that the motions to dismiss be granted and the complaint dismissed.
After this court granted a motion for extension of time and set this matter for hearing for
Plaintiff to present her objections orally, Plaintiff filed written objections and a motion for leave to
file an amended complaint on August 14, 2015. ECF No. 63. Even though Plaintiff filed written
objections to the Report, the court determined that the hearing would proceed to ensure Plaintiff had
the opportunity to present all objections she wished to present. The time for Defendants to provide
a response to Plaintiff’s objections and motion to amend had not yet expired, and Defendants elected
to present oral argument at the hearing and review Plaintiff’s submissions from the hearing and file
a response to Plaintiff’s objections, if they so chose, by Monday, August 31, 2015. At the conclusion
of the hearing, the court took the matter under advisement. On August 31, 2015, Bank Defendants
and RTT filed responses addressing Plaintiff’s objections and material submitted at the hearing. See
ECF Nos. 67 & 68.
As a part of her oral presentation, Plaintiff admitted that issues in her complaint relate to “the
origination of [the] alleged loan.” Supplement to Obj. at 2, ECF No. 65. Although Plaintiff admitted
she owed repayment of the September 29, 2006, loan to some entity, Plaintiff reiterated her position
that she did not enter into an enforceable contract with either Bank Defendant when she executed
the Note and Mortgage on September 29, 2006, because of certain alleged infirmities at closing.
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II. REPORT AND RECOMMENDATION
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.
See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a specific objection is
made. The court may accept, reject, or modify, in whole or in part, the recommendation made by
the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b).
Defendants argue that the court’s review of the Report should be for clear error as Plaintiff
has failed to set forth objections with specificity. However, out of an abundance of caution, the court
has conducted a de novo review of the record, the applicable law, the Report and Recommendation
of the Magistrate Judge, and Plaintiff’s written and oral objections. The court agrees with the
conclusions of the Magistrate Judge and therefore adopts and incorporates the Report and
Recommendation by reference in this order.
III. MOTION TO AMEND
Plaintiff includes a motion to amend the complaint in her objections. See Obj., ECF No. 63.
Plaintiff argues that she should be able to amend her complaint as a matter of course under Rule
15(a)(1) of the Federal Rules of Civil Procedure. However, because Plaintiff has delayed seeking
to amend her complaint beyond twenty-one (21) days after the filing of Defendants’ motions, she has
forfeited her right to amend as a matter of course. See F.R.Civ.P. 15(a)(1).
Federal Rule of Civil Procedure 15(a)(2) provides that in cases other than those covered by
Rule 15(a)(1), “a party may amend its pleading only with the opposing party’s written consent or
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the court’s leave. The court should freely give leave when justice so requires.” The Supreme Court
has construed the phrase “when justice so requires” in Rule 15(a)(2) to preclude granting leave to
amend when any of the following are found to exist: “undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the
amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).
“Futility” means that the complaint, as amended, would fail to state a claim upon which relief
could be granted. Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996) (citations
omitted). In assessing “futility,” this court applies the same standard of legal sufficiency as applies
under Rule 12(b)(6). Id. Under Rule 12(b)(6), a motion to dismiss should be granted only when it
appears that Plaintiff can prove no set of facts in support of a claim that would entitle Plaintiff to
relief on that claim. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The purpose of a motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. See
Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Dismissal for failure to state a
claim upon which relief may be granted does not require defendant to establish “beyond doubt” that
plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007). Once 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. The court need not, however, accept unsupported legal allegations, see Revene v. Charles
County Comm’rs, 882 F.2d 870, 873 (4th Cir.1989), legal conclusions couched as factual allegations,
see Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any
reference to actual events, see United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir.1979).
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In considering a motion to dismiss, the court must view the complaint in the light most
favorable to Plaintiff and resolve every doubt in Plaintiff’s favor. Plaintiff’s allegations are to be
taken as true for the purpose of ruling upon the motion. Jenkins v. McKeithen, 395 U.S. 411, 421-22
(1969). In addition, any inference reasonably drawn from the complaint must be considered together
with Plaintiff’s allegations of fact. Murray v. City of Milford, 380 F.2d 468, 470 (2d Cir. 1967). It
is also well-settled that a complaint cannot be amended by Plaintiff’s briefs in opposition to a motion
to dismiss. Mylan Laboratories, Inc. v. Akzo, N.V., 770 F. Supp. 1053, 1068 (D. Md. 1991).
The futility analysis under Rule 15(a)(2) requires an initial assessment of the allegations of
the proposed amendment in light of the substantive law on which the claim is based. Rambus, Inc.
v. Infineon Techs., AG, 304 F. Supp. 2d 812, 819 (E.D. Va. 2004). “Futility is apparent if the
proposed amended pleading fails to state a claim under the applicable rules and accompanying
standards . . . .” See Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 471 (4th Cir. 2011).
As to amendment under Rule 15(a)(2), Plaintiff generally argues in her written and oral
presentation that she should be able to amend her complaint to cure the deficiencies noted by the
Magistrate Judge. However, Plaintiff has not provided a proposed amended complaint. Nor was she
able at oral argument to provide any factual support for her conclusory allegations of wrongdoing
or explain what harm or injuries she has suffered. Accordingly, based on the defects detailed in the
Report and Recommendation, the court concludes that amendment of the complaint would be futile,
and denies Plaintiff’s motion to amend.
IV. CONCLUSION
As noted above, Plaintiff has not provided a proposed amended complaint. Nor has she
provided information describing any harm or injuries she contends she suffered. For these reasons,
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and for the reasons stated in the Report, the court grants Defendants’ motions to dismiss Plaintiff’s
complaint (ECF Nos. 24 & 28) with prejudice.1
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
SENIOR UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
September 2, 2015
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“[U]nless otherwise specified, a dismissal for failure to state a claim under Rule 12(b)(6)
is presumed to be both a judgment on the merits and to be rendered with prejudice.” McLean v.
United States, 566 F.3d 391, 396 (4th Cir. 2009). However, the district court has the discretion to
specify that a dismissal is without prejudice. See Carter v. Norfolk Cmty. Hosp. Ass’n, Inc., 761
F.2d 970, 974 (4th Cir. 1985). The court exercises its discretion to dismiss this matter with prejudice
as it appears no amendment can cure the deficiencies inherent in Plaintiff’s complaint.
The Clerk should terminate the pending motion for extension of time (ECF No. 58) as it was
granted in part and denied in part when the court set oral argument.
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