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Wright v. Perry

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

June 30, 2014

EARL WRIGHT, Plaintiff,
v.
MS. JODY PERRY, et. al., Defendants.

MEMORANDUM AND RECOMMENDATION AND ORDER

DAVID S. CAYER, Magistrate Judge.

THIS MATTER is before the Court on Defendants' "Motion[s] to Dismiss" (documents ##5 and 11) and the parties' briefs and exhibits. See documents ##5, 6, 11, 12, 13, 15, and 16.

This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1), and these Motions are 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

This matter is nearly identical to an earlier action filed by the pro se Plaintiff and dismissed by the Honorable Robert J. Conrad, Jr. on May 5, 2014. See Wright v Bank of America, 3:14cv94-RJC-DSC, "Order" (document #9) (affirming Memorandum and Recommendation and Order, granting Motion to Dismiss).[1]

Plaintiff filed this Complaint the next day. Plaintiff's claims arise out of a mortgage loan secured by real property located at 7511 Caribou Court in Charlotte, North Carolina ("the "Property"). Plaintiff executed two Deeds of Trust on the property to secure loans in the amount of $125, 440 and $82, 550 (the "First Deed of Trust" and the "Second Deed of Trust").

On November 27, 2007, the substitute trustee 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. For a more detailed statement of the facts, see 3:14cv94-RJC-DSC, "Memorandum and Recommendation and Order" (document #5).

Plaintiff now re-asserts the claims that were dismissed previously. He alleges that Defendant Bank of America violated the Fair Housing Act ("FHA") by selling the Second Deed of Trust to Defendant Select Portfolio in November 2012 following the foreclosure. Plaintiff further alleges that from 2008 through 2013, Defendants reported the status of the second loan to credit reporting agencies ("CRAs") in violation of the Fair Credit Reporting Act ("FCRA"). Plaintiff also attempts to state a claim under N.C. Gen. Stat. § 45-93(3).

As the Court previously found, Defendant Bank of America did not "sell" the mortgage loan secured by the Second Deed of Trust to Defendant Select Portfolio. Bank of America merely transferred the servicing of the loan to Select Portfolio.

Defendants' Motions to Dismiss have been fully briefed and are ripe for determination.

II. DISCUSSION

In reviewing a Rule 12(b)(6) motion, "the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari , 7 F.3d 1130, 1134 (4th Cir. 1993). The plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007). "[O]nce 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. A complaint attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains enough facts to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In Iqbal, the Supreme Court articulated a two-step process for determining whether a complaint meets this plausibility standard. First, the court identifies allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Id . "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id . (citing Twombly , 550 U.S. at 555) (allegation that government officials adopted challenged policy "because of" its adverse effects on protected group was conclusory and not assumed to be true). Although the pleading requirements stated in "Rule 8 [of the Federal Rules of Civil Procedure] mark[] a notable and generous ...


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