United States District Court, E.D. North Carolina, Southern Division
HENRY T. LOCKLEAR, Plaintiff,
FEDERAL HOME MORTGAGE CORPORATION, and WELLS FARGO BANK, N.A., Defendants.
C. DEVER, III CHIEF UNITED STATES DISTRICT JUDGE
January 30, 2017, Wells Fargo Bank, N.A. ("Wells
Fargo" or "defendant") moved to dismiss this
action for lack of subject-matter jurisdiction and failure to
state a claim [D.E. 16]. See Fed.R.Civ.P. 12(b)(1), (6). On
January 31, 2017, the court notified Henry T. Locklear
("Locklear" or "plaintiff') about the
motion to dismiss and the consequences of failing to respond
[D.E. 18]. See Roseboro v. Garrison, 528 F.2d 309,
310 (4th Cir. 1975) (per curiam). Locklear did not respond,
although on February 24, 2017, Locklear asked the pro bono
panel to review his case [D.E. 20]. As explained below, the
court grants Wells Fargo's motion to dismiss, denies
Locklear's request that the pro bono panel review his
case, and dismisses Locklear's action for lack of
about September 26, 2005, Locklear and his wife ("Ms.
Locklear") obtained a $115, 000 loan from Sidus
Financial, LLC ("Sidus"). Compl. [D.E. 7]
¶¶ 5-6. Locklear and Ms. Locklear memorialized
their loan obligations in a Promissory Note (the
"Note") and secured their obligations with a Deed
of Trust encumbering their residence at 1823 Snake Road,
Lumberton, North Carolina (the "Collateral
Property"). Id. ¶¶6-7; [D.E. 16-1]
(Note); [D.E. 16-2] (Deed of Trust). On September 28, 2005,
the Deed of Trust was recorded in Book D1491 at Page 889 of
the Robeson County, North Carolina Public Registry.
and Ms. Locklear defaulted on their loan payments. On June
14, 2007, the Clerk of Robeson County Superior Court
("Clerk") entered an Order to Allow Foreclosure
Sale (the "Foreclosure Order"). [D.E. 16-3].
Plaintiff and Ms. Locklear appealed the Foreclosure Order,
but, on October 4, 2007, the Robeson County Superior Court
dismissed their appeal in an Order to Dismiss Appeal. [D.E.
16-4]. Plaintiff and Ms. Locklear sought reconsideration in
Robeson County Superior Court, but they withdrew their motion
for reconsideration on January 17, 2008. [D.E. 16-5].
March 17, 2008, and October 16, 2013, Locklear and Ms.
Locklear filed numerous voluntary bankruptcy petitions in the
United States Bankruptcy Court for the Eastern District of
North Carolina (the "Bankruptcy Court"). Each time
Locklear or Ms. Locklear filed a voluntary bankruptcy
petition, the Substitute Trustee had to advertise notice of
the foreclosure sale, delaying the actual foreclosure of the
property. See N.C. Gen. Stat. § 45-21.22(c).
January 9, 2013, Locklear filed a voluntary petition under
Chapter 13 in the Bankruptcy Court, and the case was assigned
case number 13-00155-9-SWH (the "January Bankruptcy
Case"). [D.E. 16-6]. On February 26, 2013, the
Bankruptcy Court dismissed the January Bankruptcy Case. [D.E.
16-7]. On May 24, 2013, Locklear filed another voluntary
petition under Chapter 13 in the Bankruptcy Court, and the
case was assigned case number 13-03385-5-RDD (the "May
Bankruptcy Case"). [D.E. 16-8]. On May 24, 2013, the
Bankruptcy Court dismissed the May Bankruptcy Case. [D.E.
16-9]. On August 5, 2013, the Clerk re-activated the 2007
foreclosure proceeding in an Order Rendering File Active.
[D.E. 16-10]. On October 16, 2013, pursuant to the
Foreclosure Order, Wells Fargo purchased the Collateral
Property at a foreclosure sale. On October 16, 2013, Locklear
filed another bankruptcy petition and the case was assigned
case number 13-06493-8-DMW (the "October Bankruptcy
Case"). [D.E. 16-11]. OnDecember3, 2013, the Bankruptcy
Court dismissed the October Bankruptcy Case. [D.E. 16-12]. On
April 25, 2014, the Bankruptcy Court entered an Order
Confirming the Automatic Stay is Not in Effect in which the
Bankruptcy Court held that because Locklear filed two prior
bankruptcy cases in 2013 that were dismissed for failure to
pay the filing fee, Locklear's filing of the October
Bankruptcy Case had not triggered the automatic stay.
See [D.E. 16-13]; 11 U.S.C. § 362(c)(4)(A)(i).
Fargo assigned its bid to Federal Home Loan Mortgage
Corporation ("Freddie Mac"), and the Substitute
Trustee conveyed title to the Collateral Property to Freddie
Mac in the Substitute Trustee's Deed. See [D.E. 16-15,
16-16]. OnNovember25, 2013, the Substitute Trustee's Deed
was recorded in Book D 1930, Page 163 of the Robeson County,
North Carolina Registry of Deeds.
February 28, 2014, Locklear filed a complaint against Wells
Fargo and Freddie Mac (the "State Court Complaint")
in Robeson County Superior Court, Case 14 CVS 00451 (the
"State Court Action"). [D.E. 16-17]. The complaint
in the State Court Action essentially replicates the instant
complaint. Compare Id. with Compl. On May 2, 2014,
the Robeson County Superior Court entered an order denying
Locklear's request for a preliminary injunction to enjoin
the enforcement of a Writ of Possession of the Collateral
Property (the "Order"). [D.E. 16-18]. On May 19,
2014, Locklear voluntarily dismissed the State Court Action.
See [D.E. 16-19].
Locklear's complaint, Locklear makes five claims for
relief against Wells Fargo - breach of contract, abuse of
process, libel, slander, and request for a restraining order.
See [D.E. 7] Compl. ¶¶ 42-62. All five claims
concern the foreclosure. See id.
motion to dismiss under Rule 12(b)(1) tests subject-matter
jurisdiction, which is the court's "statutory or
constitutional power to adjudicate the case." Steel
Co. v. Citizens for a Better Env't 523 U.S. 83, 89
(1998) (emphasis omitted'): see Holloway v. Pagan
River Dockside Seafood. Inc., 669 F.3d 448, 453 (4th
Cir. 2012); Constantine v. Rectors & Visitors of
George Mason Univ., 411 F.3d 474, 479-80 (4th Cir.
2005). As the party asserting that this court has
subject-matter jurisdiction, Locklear must prove that
subject-matter jurisdiction exists. See,
e.g.. Steel Co., 523 U.S. at 104; Evans
v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999);
Richmond. Fredericksburg & Potomac R.R. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991). In
considering a motion to dismiss for lack of subject-matter
jurisdiction, the court may consider evidence outside the
pleadings without converting the motion into one for summary
judgment. See, e.g.. Evans, 166 F.3d at 647.
Rooker-Feldman doctrine prohibits a
"party losing in state court... from seeking what in
substance would be appellate review of the state judgment in
a United States district court, based on the losing
party's claim that the state judgment itself violates the
loser's federal rights." Johnson v. De
Grandy,512 U.S. 997, 1005-06 ri994>: see D.C.
Court of Appeals v. Feldman.460 U.S. 462, 476 (1983);
Thana v. Bd. of License Comm'rs for Charles
Cty.,827 F.3d 314, 318-20 (4th Cir. 2016);
Washington v. Wilmore. 407 F.3d 274, 279 (4th Cir.
2005). The Rooker-Feldman doctrine
encompasses "not only review of adjudications of the
state's highest court, but also the decisions of its
lower courts." Brown & Root. Inc. v.
Breckenridee.211 F.3d 194, 199 (4th Cir. 2000)
(quotation omitted). Rooker-Feldman
"reinforces the important principle that review of state
court decisions must be made to the state appellate courts,
and eventually to the Supreme Court, ...