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Iar Family Trust v. Suntrust Mortgage, Inc.

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

April 14, 2014

IAR FAMILY TRUST and BURNETT BOYKIN Plaintiffs,
v.
SUNTRUST MORTGAGE, INC., SUNTRUST BANK, INC., ANDREW COGBILL, SUBSTITUTE TRUSTEE SERVICES, INC. c/o HUNTCHENS, SENTER KELLAM & PETTIT, PA, JEREMY B. WILKINS, SUBSTITUTE TRUSTEE SERVICES OF CAROLINA, LLC c/o BROCK AND SCOTT PLLC Defendants.

ORDER

GRAHAM C. MULLEN, District Judge.

I. INTRODUCTION

THIS MATTER is before the Court on Defendants' Motions to Dismiss (Doc. Nos. 12, 16, 20), Plaintiffs' Responses in Opposition (Doc. Nos. 27, 28, 29, 31, 35, 37), and Defendants' Replies (Doc. Nos. 32, 33, 42, 44). For the reasons stated herein, Defendants' Motions are GRANTED.

II. BACKGROUND

Plaintiff Burnett Boykin obtained a loan in the original principal amount of $1, 290, 600.00 from Defendant SunTrust Bank on November 17, 2006. (Compl. at 2). The loan was evidenced by a promissory note and secured by a deed of trust executed by Boykin and his wife Joyce and recorded on November 21, 2006. ( Id. ) The deed secured real property located at 9114 Woodhall Lake Drive, Waxhaw, North Carolina. ( Id. at 3).

On August 26, 2009, alleging that Boykin had defaulted under the terms of his loan, a foreclosure action was commenced by Defendant Substitute Trustee Services, Inc. (STS) before the Clerk of Superior Court of Union County, North Carolina. (Compl. Ex. A). The Clerk entered an order allowing the foreclosure of the property to proceed. Id. Boykin appealed the Clerk's order to the Superior Court of Union County, and on July 10, 2012, that court found that SunTrust had not met its burden to prove that it was the holder of the note and deed. (Compl. at 2). On October 1, 2012, STS filed a notice of dismissal pursuant to Rule 41(a) of the North Carolina Rules of Civil Procedure dismissing the foreclosure proceedings without prejudice to refile at a later date. ( Id. at 3).

On December 2, 2011, SunTrust notified Boykin that he was in default under the terms of the note as a result of his alleged failure to make monthly payments from July 1, 2008 through June 1, 2010, and July 1, 2010 through December 2, 2011. (Compl. Ex. E). On April 10, 2013, after providing Boykin with a statement of the amounts due under the note, (Compl. Ex. G), Defendant Trustee Services of Carolina, LLC (TSC) initiated a second foreclosure action before the Union County Clerk of Court. (Compl. at 5). On July 24, 2013, the Clerk entered an order allowing the foreclosure sale after finding that SunTrust is the holder of the note evidencing a valid debt owed by Boykin, that Boykin was in default of that note, and that SunTrust is entitled to foreclose. (Doc. No. 13 Ex. 1).[1]

On July 23, 2013, Boykin filed this Complaint (Doc. No. 1) asserting claims for fraud and violations of the Fair Debt Collection Practices Act (FDCPA), the Real Estate Settlement Procedures Act (RESPA), and the Truth in Lending Act (TILA).

III. DISCUSSION

When faced with a Rule 12(b)(6) motion to dismiss, courts are instructed to "accept as true all well-pleaded allegations and... view the complaint in a light most favorable to the plaintiff." Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). After "assum[ing] the veracity" of these factual allegations, the court is to "determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, a "complaint may proceed even if it strikes a savvy judge that actual proof of [the facts alleged] is improbable, and that a recovery is very remote and unlikely.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). However, the court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts., Inc. v. J.D. Assocs. LLP, 213 F.3d 175, 180 (4th Cir. 2000).

A. Plaintiff IAR Family Trust

As an initial matter, the Court notes that the Complaint was filed by an Edward Kitchen on behalf of Boykin and an entity named "IAR Family Trust." Mr. Kitchen does not appear to be licensed to practice law in North Carolina, even though some of the exhibits filed with the Complaint list him as an "Attorney." ( See, e.g., Compl. Ex. M-2). N.C. Gen. Stat. ยง 84-4 prohibits the practice of law or the provision of legal services "for another person, firm, or corporation" by persons not licensed to practice law in the State of North Carolina. Mr. Kitchen appears to have violated this provision in several respects, not the least by filing this Complaint in the first place.

Moreover, the entity he purports to represent-IAR Family Trust-does not appear to be a proper party to this suit. Defendants correctly point out that the Complaint is entirely devoid of any allegation relating to IAR Family Trust. The injuries complained of in this suit stem from the efforts to collect a debt owed by Boykin, who is solely obligated to repay the loan and who executed the deed at issue here. Nevertheless, because Boykin is a proper ...


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