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Wright v. Bank of America

United States District Court, W.D. North Carolina, Charlotte Division

April 7, 2014

EARL WRIGHT, Plaintiff,
v.
BANK OF AMERICA, Defendant.

MEMORANDUM AND RECOMMENDATION AND ORDER

DAVID S. CAYER, Magistrate Judge.

THIS MATTER is before the Court on Defendant's "Motion to Dismiss" (document #3) and the parties' briefs and exhibits. See documents ##3-1 and 4.

This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1), and the Motion is now ripe for the Court's consideration.

Having fully considered the arguments, the record, and the applicable authority, the undersigned respectfully recommends that the Motion to Dismiss be granted, as discussed below.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff's claims arise out of a mortgage loan secured by real property located at 7511 Caribou Court in Charlotte, North Carolina ("the "Property"). The Court takes judicial notice that on September 24, 1997, a North Carolina General Warranty Deed conveying the Property from Eastwood Construction Co., Inc. to Plaintiff was recorded by the Mecklenburg County Register of Deeds at Book 9266, Page 476.[1]

On March 13, 2003, Plaintiff executed a Deed of Trust in favor of Mortgage Electronic Registration Systems, Inc. ("MERS") as beneficiary and nominee for lender Mortgage Investors Corporation ("MIC") and its successors and assigns. The Deed of Trust was recorded by the Mecklenburg County Register of Deeds at Book 14996, Page 906 (the "First Deed of Trust") and secured a loan in the amount of $125, 440.

On November 21, 2006, Plaintiff executed a Deed of Trust in favor of MERS as beneficiary and nominee for lender First NLC Financial Services, LLC dba The Lending Center ("First NLC") and its successors and assigns. The Deed of Trust was recorded by the Mecklenburg County Register of Deeds at Book 21563, Page 256 (the "Second Deed of Trust") and secured a loan in the amount of $82, 550.

On November 27, 2007, substitute trustee Lisa A. Campbell conducted a foreclosure sale of the Property under the First Deed of Trust. A Substitute Trustee's Deed was recorded on December 17, 2007 conveying the Property to the Secretary of Veterans Affairs. On January 7, 2008, the Final Report and Account of Foreclosure Sale was filed with the Mecklenburg County Clerk of Superior Court. The foreclosure documents refer only to the First Deed of Trust.

On January 31, 2014, Plaintiff filed his pro se Complaint in Mecklenburg County Superior Court. Plaintiff alleges that Defendant violated the Fair Housing Act ("FHA") by selling the Second Deed of Trust to "Select Portfolio" in November 2012 after previously selling the house at foreclosure. Plaintiff further alleges that from 2008 through 2013, Defendant reported the status of the second loan to credit reporting agencies ("CRAs") in violation of the Fair Credit Reporting Act ("FCRA"). The caption of the Complaint also makes reference to N.C. Gen. Stat. § 45-93.3.

On March 4, 2014, Defendant removed the state court action to the United States District Court for the Western District of North Carolina. Defendant asserts the existence of federal question jurisdiction which appears proper.

On March 11, 2014, Defendant filed its Motion to Dismiss. Defendant attaches its letter to Plaintiff dated August 28, 2012 informing him that the handling and servicing of the loan was being transferred.[2] Defendant asserts that it did not "sell" the mortgage loan secured by the Second Deed of Trust to Select Portfolio as characterized by Plaintiff. Defendant merely transferred the servicing of the loan to Select Portfolio.

Defendant's Motion to Dismiss has been fully briefed and is ripe ...


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