United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter is before the court on defendant's motion for
summary judgment. (DE 57). Pursuant to 28 U.S.C. §
636(b)(1) and Federal Rule of Civil Procedure 72(b), United
States Magistrate Judge Robert B. Jones, Jr., entered
memorandum and recommendation (“M&R”),
wherein it is recommended that the court deny defendant's
motion. Defendants timely filed objections to the
M&R, and the issues raised are ripe for
ruling. For the reasons that follow, the court accepts the
recommendation in the M&R, and denies defendant's
OF THE CASE
proceeding pro se, commenced this action April 28, 2015,
asserting violations of federal consumer protection law,
breach of contract, and related state law torts against
defendants American Home Mortgage Servicing, Inc.
(“AHMSI”) and Ocwen Loan Servicing, LLC
(“Ocwen”). Plaintiff's claims arise from
defendants' alleged failures to service properly a loan
secured by property located at 2521 Springhill Ave, Raleigh,
North Carolina (“2521 Springhill Ave property”).
Plaintiff seeks compensatory and punitive damages.
initiated prior action asserting similar claims against AHMSI
in the General Court of Justice, Superior Court Division, for
Wake County on April 1, 2014, alleging that AHMSI failed to
properly credit her mortgage payments in violation of the
North Carolina Unfair and Deceptive Trade Practices Act.
Reeves v. Am. Home Mortg., Inc. (“Reaves
I”), No. 14 CVS 4069; see App. to
Defs.' Stmt. of Material Facts (“SOMF”) Ex. A
(DE 62-1). On May 29, 2014, the trustee for non-party Option
One, which was the original servicer for the loan, initiated
foreclosure proceedings against the 2521 Springhill Ave
property in Wake County Superior Court. In re Foreclosure
of Real Property Under Deed of Trust from Margaret W.
Reeves (“the foreclosure proceeding”),
Notice of Hr'g., No. 14 SP 1727; see App.
Defs.'s SOMF Ex. B (DE 62-2). On December 29, 2014, the
Wake County Superior Court stayed Reaves I pending
resolution of the foreclosure proceeding. Reaves I,
No. 14 CVS4069, Dec. 29, 2014 Order; see App. to
Defs.' SOMF Ex. C (DE 62-3). The record taken into this
court indicates that the foreclosure proceeding remains
pending. (DE 77-2 at 3). Nothing before the court indicates
that the stay of Reaves I has been lifted.
25, 2014, plaintiff filed a complaint against Wells Fargo
Bank, Trustee Services of Carolina, and Brock and Scott in
Wake County Superior Court alleging that those defendants did
not credit properly plaintiff's payments for property
taxes, and, as a result, she overpaid her taxes. Reeves
v. Wells Fargo Bank (“Reaves II”),
No. 14 CVS 8427; see App. to Defs.' SOMF Ex. D
(DE 62-4). Plaintiff filed a third action August 26, 2014,
against Sand Canyon Corporation, Dale Sugimoto, Brock and
Scott, and Ocwen Loan Servicing, alleging that the defendants
filed a fraudulent affidavit with the Wake County Register of
Deeds on April 7, 2014, in connection with the foreclosure
proceeding. Reeves v. Sand Canyon Corp.
(“Reaves III”), No. 14 CVS 11169;
see App. to Defs.' SOMF Ex. F (DE 62-6). On
December 29, 2014, the Wake County Superior Court dismissed
Reaves II and Reaves III with prejudice.
Reaves II, No. 14 CVS 8427, Dec. 29, 2014 Order;
see App. to Defs.' SOMF Ex. E (DE 62-5);
Reaves III, No. 14 CVS 11169, Dec. 29, 2014 Order,
App. to Defs.' SOMF Ex. G (DE 62-7).
case, standing as Reaves IV, defendants filed the
instant motion November 30, 2016, asserting that
plaintiff's claims are barred by the
Rooker-Feldman doctrine and res judicata, or, in the
alternative, that the court should stay this action pursuant
to Colorado River abstention pending resolution of
the foreclosure proceeding. In support of their motion,
defendants rely upon the state court files and
plaintiff's complaint. Plaintiff's response in
opposition does not address defendants' arguments, but
constitutes an attempt to present evidence pertinent to the
merits of her claims.
OF THE UNDISPUTED FACTS
court incorporates as follows the statement of facts set
forth in the M&R, where such statement accurately
reflects the evidence of record:
Plaintiff's claims relate to actions taken by Defendants
in the course of servicing her mortgage loan, including
during foreclosure proceedings in North Carolina state court.
Plaintiff and her now-deceased husband obtained a loan for
$117, 600.00 from First Greensboro Home Equity, Inc. on or
about December 23, 2002, secured by Plaintiff's
residence. Am. Compl. [DE-38] ¶¶ 17, 19. At the
time of origination, Option One was the servicer of the loan,
and AHMSI became the servicer on or about May 2008.
Id. ¶¶ 20, 36. AHMSI changed its name to
Homeward Residential Holdings in December 2012, and was
acquired that same month by Ocwen's parent corporation
(Ocwen Financial Corporation). Id. ¶¶ 2-3.
On or about June 7, 2013, Plaintiff received a letter from
Ocwen on behalf of Homeward Residential informing her that
she was delinquent on the loan by 21 payments. Id.
¶ 54. According to Plaintiff, Defendants violated
federal, state, and common law in connection with servicing
Plaintiffs mortgage loan by wrongfully taking the following
(i) adjusted escrow withholdings in amounts and at times that
are not permitted; (ii) failed to respond to inquiries by
[P]laintiff within the time required by law; (iii) when they
did respond, Defendants failed to do so timely as required by
law; (iv) failed to properly credit payments received from
[P]laintiff; (v) failed to notify Plaintiff [that] payments
received from her were not being credited, but rather held
for an unreasonable duration of time; (vi) failed to return
funds which Defendants [were] under [an] obligation to
return; (vii) making written and verbal false and misleading
statements as to the amount owed and status of
Plaintiff's account; (viii) notified Plaintiff that they
and other Defendants had commenced foreclosure or other
proceedings, notwithstanding that they were not permitted to
commence those proceedings; (ix) failed to timely and clearly
advise Plaintiff of changes to her obligations predicated
upon Defendants' files; and (x) frustrated and/or
harassed Plaintiff who attempted to find out more information
concerning her mortgages and her rights and obligations
[thereunder]. Id. ¶ 14.
Specifically, Plaintiff claims that Defendants violated the
Real Estate Settlement Practices Act (“RESPA”),
12 U.S.C. § 2601 et seq., by failing to respond
to qualified written requests sent by Plaintiff, Am. Compl.
[DE-38] ¶¶ 60-66; violated the Truth in Lending Act
(“TILA”);15 U.S.C. § 160.1 et seq.,
by failing to provide required notices, Am. Com pl. [DE-3
¶¶ 67-7]; violated the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692
et seq., by making false and misleading
representations to Plaintiff about the character, amount, and
legal status of her debt, Am. Compl. [DE-38] ¶¶
72-80; violated the North Carolina Fair Debt Collection
Practices Act (“NCDCPA”), N.C. Gen. Stat. §
75-50 et seq., by engaging in unfair acts in
collecting Plaintiff's debt, Am. Compl. [DE 38]
¶¶ 81-87; violated the North Carolina Unfair and
Deceptive Trade Practices Act (“NC UDTPA”), N.C.
Gen; Stat.§ 75-1.1 et seq., by failing to
properly credit Plaintiff's account, charging
unauthorized fees and costs, and sending false and misleading
communications, Am. Compl. [DE-38] at ¶¶ 88-94;
breached Plaintiffs contract by improperly crediting
Plaintiff's account, charging unauthorized fees and
costs, and attempting to foreclose on Plaintiff's
residence when she was not in default, Am. Compl. [DE-38]
¶¶ 95-99; breached the implied covenant of good
faith and fair dealing by acting to deprive Plaintiff of her
contractually-bestowed benefits and preventing her from
fulfilling her contractual obligations, Id.
¶¶ 100-04; and acted negligently in the course of
servicing Plaintiff's mortgage loan, Id.
¶¶ 105-09. Plaintiff seeks monetary relief, to
include actual, statutory, compensatory, and punitive
damages, costs, and attorney's fees. Id. at
23-24 ¶¶ 1-10.
(DE 73 at ...