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Carter v. Rogers, Townsend, & Thomas, P.C.

United States District Court, M.D. North Carolina

February 28, 2014

JAMES J. CARTER and GLADYS M. CARTER, Plaintiffs,
v.
ROGERS, TOWNSEND, & THOMAS, P.C., DAVID N., JOHN DOE, JOHN P. FETNER, WALTER INVESTMENT MANAGEMENT CORP., MARK J. O'BRIEN, GREEN TREE SERVICING, INC., and JOHN DOE, Defendants.

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

L. PATRICK AULD, Magistrate Judge.

This case comes before the Court on Plaintiffs' Application for Leave to Proceed In Forma Pauperis (Docket Entry 1), filed in conjunction with Plaintiffs' pro se Complaint (Docket Entry 2). Also before the Court are Plaintiffs' Motion for Emergency Hearing (Docket Entry 4) and Defendants' Motion for Extension of Time to Respond to Plaintiffs' Complaint (Docket Entry 5). The Court will grant Plaintiffs' request to proceed as a pauper for the limited purpose of recommending dismissal of this action, under 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim, and will deny the pending motions as moot.

BACKGROUND

Plaintiffs' Complaint puts forth the following material factual allegations:

(1) on or before April 12, 2012, Defendants[1] sent a "foreclosure petition and related documents to [Plaintiffs]" (Docket Entry 2 at 3)[2] and filed said "foreclosure petition and related documents in the Randolph County Superior Court" (id. at 5);

(2) the foreclosure petition identified Green Tree Servicing LLC ("Green Tree") as the owner of the property at issue when in fact Fannie Mae owned the property and Green Tree "is at most the Servicer for the alleged debt" (id. at 9);

(3) the foreclosure petition identified the property at issue as "148 Renola Dr. Archdale, NC 27263 f/k/a 134 Renola Dr. Archdale, NC 27263 with a legal description of Lots 133, 134, and 135 in the LH Kinney Subdivision" when in fact the "correct legal address of the property is 134a Renola Dr. Archdale, NC 27263 [and t]he correct legal description of the property is Lots 133, 134, 135, and 136 in the LH Kinney Subdivision" (id.);

(4) Defendants "schedule[d] and then cancel[ed] a hearing before the Clerk of Courts for the Randolph County Superior Court" (id. at 19); and

(5) Defendants "failed to provide [Plaintiffs] with written information proving the right of Green Tree [] to pursue collection of this debt" (id. at 21).

Based on the foregoing events, Plaintiffs apparently pursue claims for: (1) fraud/mail fraud (id. at 3-4, 9-12, 14-16, 19-23); (2) conspiracy under federal law (id. at 5-7); (3) violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO") (id. at 7-9); (4) slander (id. at 12-14); and (5) attempted grand larceny (id. at 17-19). They demand (1) "judgment and relief in an amount in excess of $100, 000, 000 in compensatory and punitive damages for each claim in this Complaint and from each Defendant" (id. at 23); (2) "triple the damages awarded on each claim... for violations of the Federal RICO Act" (id. at 24); (3) that the Court "refer this matter to the U.S. Attorney and FBI for investigation of possible criminal violations" (id.); (4) that the Court "refer this matter to the North Carolina State Bar for investigation of whether the attorneys named as Defendants committed violations of their duties as licensed attorneys and Officers of the Court" (id.); (5) that "the Court order Defendants to retract all statements related to the alleged debt and remove any reference to an alleged debt to Green Tree [] from any and all Credit Bureaus or other locations whereby they have previously reported it" (id.); and (6) that "the Court issue an immediate injunction ordering Defendants and all other parties to cease and desist any and all collection or foreclosure actions related to the property in question until such time as this case reaches its conclusion" (id.).

After filing their Complaint and Application for Leave to Proceed In Forma Pauperis, Plaintiffs moved for a hearing "on the grounds that Plaintiffs have been shut out of State Court... [and] are suffering irreparable harm every day that they are not allowed to defend themselves in State Court against false and defamatory accusations Defendants in the above entitled matter have filed against them in the Randolph County Superior Court." (Docket Entry 4 at 1.) Defendants subsequently filed their instant Motion for Extension of Time to Respond to Plaintiffs' Complaint, in which they stated that they had "received a copy of the Complaint by certified mail along with unsigned summonses, " as well as a letter from Plaintiffs "indicating that [they] will be moving for a default judgment against [] Defendants if a response to the Complaint is not filed by July 18, 2012." (Docket Entry 5 at 2.) In light of that demand, although "Defendants do not believe that a civil action has been properly initiated in this Court or that they have been properly served, [they] seek an extension of time... to prepare and submit a response to the Complaint and Motion for Emergency Hearing." (Id.) Defendants thereafter responded to Plaintiffs' Application for Leave to Proceed In Forma Pauperis. (Docket Entry 6.) Plaintiffs did not reply. (See Docket Entries dated Aug. 8, 2012, to present.)

LEGAL BACKGROUND

"The federal in forma pauperis statute, first enacted in 1892 [and now codified at 28 U.S.C. § 1915], is intended to guarantee that no citizen shall be denied access to the courts solely because his poverty makes it impossible for him to pay or secure the costs.'" Nasim v. Warden, Md. House of Corr. , 64 F.3d 951, 953 (4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont de Nemours & Co. , 335 U.S. 331, 342 (1948)). "Dispensing with filing fees, however, [is] not without its problems. Parties proceeding under the statute d[o] not face the same financial constraints as ordinary litigants. In particular, litigants suing in forma pauperis d[o] not need to balance the prospects of successfully obtaining relief against the administrative costs of bringing suit." Nagy v. Federal Med. Ctr. Butner , 376 F.3d 252, 255 (4th Cir. 2004).

To address this concern, the in forma pauperis statute provides, in relevant part, that "the court shall dismiss the case at any time if the court determines that -... (B) the action or appeal -... fails to state a claim on which relief may be granted...." 28 U.S.C. § 1915(e)(2). Under this standard, a complaint falls short when it does not "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (emphasis added) (internal citations omitted) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). This standard thus "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id . In other words, "the tenet that a court must accept as true all of ...


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