United States District Court, E.D. North Carolina, Southern Division
EARL BRITT SENIOR U.S. DISTRICT JUDGE
matter is before the court on Ditech Financial LLC's
(“defendant”) motion to dismiss this action based
on lack of subject matter jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(1) and for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
(DE # 16.) Plaintiff has filed a response in opposition to
the motion. (DE # 19.) Defendant has not filed a reply, and
the time within which to do so has expired.
complaint, (DE # 7), appears to be related to a foreclosure
proceeding regarding property formerly owned by
plaintiff's father, and perhaps now owned by plaintiff.
According to documents filed in the foreclosure proceeding,
the amount owed on a mortgage of the property was $53, 489.28
as of 13 April 2014. (DE # 19, Ex. K.) On 16 March 2017,
defendant Nodell, Glass & Haskell LLP, on behalf of
defendant, provided documentation to plaintiff indicating the
payoff amount was $67, 866.32. (DE # 7-1.)
a pro se litigant, alleges that the payoff amount
provided in March 2017 is incorrect. (See Compl., at
4.) At a foreclosing proceeding on 14 September 2016, she
claims that she was provided a payoff total between $42, 250
and $56, 000 and secured a loan based on that information.
(Id.) She asserts, “At this time, all action
should cease and desist until we can obtain accurate figures
with documentation with full explanation . . . .”
response to defendant's motion to dismiss, she claims
that defendants conspired to initiate a wrongful foreclosure
proceeding. (DE # 19, at 1.) She alleges that they used a
counterfeit mortgage instrument to obtain a default judgment
on the property, an action which she says violates criminal
statute 18 U.S.C. § 474. (Id. at 2.)
court considers defendant's challenge this court's
subject matter jurisdiction. Pursuant to 28 U.S.C. §
1331, a federal court possesses original jurisdiction over a
civil action arising under federal law. Cases arise under
federal law “‘when federal law creates the cause
of action asserted, '” or when a “state-law
claim [has] a ‘federal issue' [that] is ‘(1)
necessarily raised, (2) actually disputed, (3) substantial,
and (4) capable of resolution in federal court without
disrupting the federal-state balance approved by
Congress.'” Commonwealth of Virginia ex rel.
Hunter Labs., L.L.C. v. Commonwealth, 828 F.3d 281, 287
(4th Cir. 2016) (quoting Gunn v. Minton, 568 U.S.
251, 257-58 (2013)). This court also possesses original
jurisdiction pursuant to 28 U.S.C. § 1332(a) if the
civil action has an amount in controversy exceeding $75, 000,
exclusive of interest and costs, and is between citizens of
different states. “In order to establish diversity
jurisdiction, the parties must be completely diverse; none of
the plaintiffs may share citizenship with any of the
defendants.” Owens-Illinois, Inc. v. Meade,
186 F.3d 435, 440 (4th Cir. 1999). The burden of proving
subject matter jurisdiction in response to a Rule 12(b)(1)
motion to dismiss is on the plaintiff, the party asserting
jurisdiction. Williams v. United States, 50 F.3d
299, 304 (4th Cir. 1995).
court lacks federal question jurisdiction over
plaintiff's claims. In her complaint, plaintiff asserts
that this court has federal question jurisdiction. (DE # 7,
at 3.) However, plaintiff did not provide any statutory basis
or other explanation for this assertion. (See id.)
Later, in her response to the motion to dismiss, plaintiff
alleges that defendants violated a federal statute, 18 U.S.C.
§ 474. However, that statute is a criminal statute.
Consequently, the statute is inapplicable to this civil
action and does not provide a ground for invoking subject
matter jurisdiction. See, e.g., Sanderlin v.
Hutchens, Senter & Britton, P.A., 783 F.Supp.2d 798,
801 n.1 (W.D. N.C. 2011) (determining that 18 U.S.C. §
474 was “insufficient to invoke subject matter
jurisdiction” in a civil action disputing a
foreclosure); Vogler v. Countrywide Home Loans,
Inc., No. 1:10CV370, 2010 WL 3394034, at *9 (M.D. N.C.
Aug. 26, 2010) (memorandum and recommendation) (finding 18
U.S.C. § 474 “completely irrelevant” to
plaintiff's foreclosure dispute and dismissing the
claim), adopted (M.D. N.C. Sept. 29, 2010). Further,
the payoff amount dispute, if anything, is a state-law
foreclosure dispute, and generally “federal courts do
not interfere in state court foreclosure proceedings.”
Houey v. Carolina First Bank, 890 F.Supp.2d 611, 620
(W.D. N.C. 2012); see also Arnold v. Waterfield Mortg.
Co., 966 F.Supp. 387, 389 (D. Md. 1996) (“[T]his
Court should refrain from interfering in a state foreclosure
proceeding.”), aff'd, 116 F.3d 472 (4th
Cir. 1997). Plaintiff's complaint does not raise
sufficient federal issues, so federal question jurisdiction
is not triggered.
complaint also does not invoke diversity jurisdiction.
Plaintiff states in her complaint that she is a North
Carolina resident. (DE # 7, at 3.) However, the complaint
also states that defendant Nodell, Glass & Haskell LLP is
located in Raleigh, North Carolina. (Id. at 2.)
Thus, the parties to this action share citizenship and fail
to meet the requirements for diversity jurisdiction.
Therefore, plaintiff does not satisfy her to burden of
proving subject matter jurisdiction. Due to this conclusion,
the court does not reach the issue of whether plaintiff has
failed to state a claim under Rule 12(b)(6).
defendant's motion to dismiss is GRANTED, and this case