Salley v. Bank of Am., N.A.

VICTORIA S. SALLEY, Plaintiff, v. BANK OF AMERICA, N.A., et al., Defendants.

No. 5:13-CV-753-D

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

SO ORDERED: June 18, 2014

ORDER

On October 28, 2013, Victoria S. Salley ("Salley" or "plaintiff'), who is proceeding pro se, filed a complaint against Bank of America, N.A. ("Bank of America"), Carrington Mortgage Services, LLC ("Carrington"), and the North Carolina Department of the Secretary of State ("NCSOS") (collectively, "defendants"), alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692-1692p, the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961-1968, and "United States Acts," as well as "SEC violations," mail fraud, common-law fraud, trespass, conversion, unjust enrichment, and "illegal possession." See Compl. [D.E. 1].¹ Salley seeks $9,963,153.00 in damages. See id. 3.

In support of her claims, Salley's three-page complaint alleges only the following facts (at best). On or about March 23, 2007, Salley obtained a loan for the purchase of real property located at 110 Few Circle, Durham, North Carolina. Salley executed a promissory note ("the Note") anddeed of trust ("the Deed") in favor of Bank of America, and Bank of America then securitized the Note. See Compl. 1-2; [D.E. 19-1] (copy of the Deed).² From Salley's other filings, the court gathers that Salley defaulted on her loan by September 2011, and that Bank of America foreclosed on her property in 2013. See Resp. Opp'n Mots. Dismiss [D.E. 30] 1-2.

On November 25, 2013, NCSOS moved to dismiss Salley's complaint based on Eleventh Amendment immunity and pursuant to Federal Rule of Civil Procedure 12(b)(6) [D.E. 15]. On December 4, 2013, and December 23, 2013, respectively, Bank of America and Carrington moved to dismiss Salley's complaint pursuant to Federal Rules of Civil Procedure 8(a), 9(b), and 12(b)(6) [D.E. 18, 21]. Pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam), the court notified Salley about the motions, the consequences of failing to respond, and the response deadlines [D.E. 17, 20]. On December 30, 2013, Salley filed a motion for extension of time to file a response to defendants' motions to dismiss [D.E. 23], which the court granted the next day [D.E. 24].

On January 27, 2014, Salley filed a motion for summary judgment [D.E. 25]. On January 30, 2014, Bank of America, Carrington, and NCSOS moved to stay certain pretrial deadlines, the discovery period, and the deadline to respond to Salley's motion for summary judgment pending a ruling on their motions to dismiss [D.E. 26]. On April 8, 2014, the court granted defendants' motion to stay [D.E. 31].

On February 10, 2014, Carrington moved to strike Salley's motion for summary judgment [D.E. 28]. On February 20, 2014, Salley filed additional evidence "pertinent to [her] case."[D.E. 29]. On February 27, 2014, Salley responded to defendants' motions to dismiss [D.E. 30]. Salley's response to defendants' motions to dismiss is identical to her motion for summary judgment.

As explained below, the court grants defendants' motions to dismiss [D.E. 15, 18,21], denies Salley's motion for summary judgment [D.E. 25], and dismisses as moot Carrington's motion to strike [D.E. 28].

I.

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for "failure to state a claim upon which relief can be granted" tests whether the complaint is legally and factually sufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562-63,570 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 132 S. Ct. 1327 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008); accord Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). In considering a motion to dismiss, a court need not accept a complaint's legal conclusions drawn from the facts. See, e.g., Iqbal, 556 U.S. at 678. Similarly, a court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 677-79.

The legal sufficiency of a complaint depends, in part, on whether it meets the standards for a pleading stated in Federal Rules of Civil Procedure 8 and 9. See Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). 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). Rule 8(a)(2) aims to assure that the defendant has adequate notice of the nature of the claims against it. See, e.g., Francis, 588 F.3d at 192. Under Rule 9(b), a party who alleges fraud must go a step further: the party "must state with particularity the circumstances constituting fraud." Fed. R. Civ. P. 9(b).Specifically, the party must allege "the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby." Harrison v. Westinehouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999) (quotation omitted); see McCaulev v. Home Loan Inv. Bank, F.S.B., 710 F.3d 551, 559-60 (4th Cir. 2013); United States ex rel. Nathan v. Takeda Pharms. N. Am., 707 F.3d 451, 455-61 (4th Cir. 2013); Adkins v. Crown Auto, Inc., 488 F.3d 225, 231-32 (4th Cir. 2007); Dunn v. Borta, 369 F.3d 421, 426-34 (4th Cir. 2004); United States ex rel. Harrison v. Westinghouse Savannah River Co., 352 F.3d 908, 921-22 (4th Cir. 2003); Riggs v. Orkin, Inc., No. 7:11-CV-5-D, 2011 WL 2417016, at *3 (E.D.N.C. June 13, 2011) (unpublished).

As for a complaint's factual sufficiency, a party must plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "[N]aked assertions of wrongdoing," devoid of "factual enhancement," cannot "cross the line between possibility and plausibility of entitlement to relief." Francis, 588 F.3d at 193 (quotations omitted). A plaintiff armed with nothing more than "labels and conclusions," or "a formulaic recitation of the elements of a cause of action," cannot proceed into the litigation process. Twombly, 550 U.S. at 555 & n.3; see Francis, 588 F.3d at 193.

Although a court must liberally construe a pro se plaintiff's allegations, it "cannot ignore a clear failure to allege facts" that set forth a cognizable claim. Johnson v. BAC Home Loans Servicing, LP, 867 F. Supp. 2d 766, 776 (E.D.N.C. 2011); see Giarratano, 521 F.3d at 304 n.5. "The special judicial solicitude with which a district court should view . . . pro se complaints does not transform the court into an advocate. Only those questions which are squarely presented to a court may properly be addressed." Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (quotation omitted). Every party—pro se or otherwise—must comply with the Federal Rules of CivilProcedure. See Iqbal, 556 U.S. at 678; Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (per curiam).

The court first addresses Bank of America's motion to dismiss [D.E. 18], which concerns counts one through seven of Salley's complaint. Salley alleges that Bank of America violated the FDCPA (four specific provisions) and RICO (generally), and committed "SEC violations," mail fraud, common-law fraud, trespass, conversion, unjust enrichment, and "illegal possession." Compl. 2. In support of these numerous claims, however, Salley fails to put Bank of America on reasonable notice of the substance of the dispute.³ Specifically, in counts one through four, Salley alleges that Bank of America violated the FDCPA, but fails to identify a specific debt or any specific activities that Bank of America undertook to collect it. In count five, Salley alleges generally that Bank of America engaged in "RICO violations" and "SEC violations," but fails to identify the specific provisions of RICO and the Securities Exchange Act that Bank of America allegedly violated. Salley also alleges that Bank of America engaged in mail fraud and common-law fraud, but fails to give any details concerning the alleged fraud. Cf. Fed. R. Civ. P. 9(b). In counts six and seven, Salley alleges that Bank of America committed unjust enrichment, trespass, and conversion, but fails even to give "a formulaic recitation of the elements of [these] cause[s] of action." Twombly, 550 U.S. at 555. Salley also alleges that Bank of America engaged in "illegal possession," an unknown cause of action under North Carolina law. Finally, Salley directs her numerous allegations in counts one through seven at Bank of America and Carrington collectively. Salley, however, must distinguishbetween the two defendants to state a claim against either one of them. See, e.g., Southland Sec. Corp. v. INSpire Ins. Solutions Inc., 365 F.3d 353, 365 (5th Cir. 2004); Maeluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001) (per curiam); Banks v. Bosch Rexroth Corp., Civil Action No. 5:12-345-DCR, 2014 WL 868118, at *7 (E.D. Ky. Mar. 5, 2014) (unpublished); Chandler v. Volunteers of Am., Se., Inc., Civil Action No. CV-12-S-3701-NW, 2013 WL 4058078, at *3 (N.D. Ala. Aug. 12, 2013) (unpublished). In sum, Salley's complaint falls far short of meeting the pleading standards in Rules 8 and 9. Accordingly, the court grants Bank of America's motion to dismiss [D.E. 18] and dismisses the complaint against Bank of America without prejudice.

Alternatively, even if Salley's complaint did meet the pleading requirements of Rules 8(a) and 9(b), her allegations fail to state a claim against Bank of America upon which relief can be granted. In counts one through four, Salley alleges that Bank of America violated sections 1692g, 1692e, 1692f, and 1692a(6) of the FDCPA. To state a claim under the FDCPA, Salley must plausibly allege that (1) she was the object of collection activity arising from a "consumer debt" as defined by the FDCPA, (2) Bank...