United States District Court, E.D. North Carolina, Western Division
WALTER L. HINSON, Trustee for CELESTE G. BROUGHTON, Plaintiff,
CITIBANK, N.A., Defendant.
MEMORANDUM OF DECISION AND ORDER
REIDINGER, UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the Defendant Citibank
N.A.'s Motion to Dismiss [DE 13].
G. Broughton (the "Debtor") filed a Petition for
Relief under Chapter 13 of Title 11 of the United States
Bankruptcy Code on December 15, 2014. [Bankr. Case No.
14-07268-5-JNC (the "Bankruptcy Proceeding")]. On
July 14, 2015, the case was converted to one under Chapter 7.
On July 15, 2015, Walter L. Hinson (the
"Plaintiff") was appointed as the Chapter 7 Trustee
by order of the Bankruptcy Court. On May 19, 2016, on his own
motion, the Honorable Terrence W. Boyle, United States
District Court Judge for the Eastern District of North
Carolina, entered an Order withdrawing the reference to the
United States Bankruptcy Court for the Eastern District of
North Carolina. [Misc. Case No. 5:16-mc-19-BO]. The United
States District Court thereafter docketed the main bankruptcy
proceeding as Civil Case No. 5:16-cv~302-BO.
August 25, 2016, the Plaintiff instituted the present
adversary proceeding against Citibank, N.A.
("Citibank") pursuant to 11 U.S.C. §
544(a)(3), seeking: (1) avoidance of Citibank's
security interest on the grounds that the Deed of Trust
purporting to perfect such interest fails to properly and
adequately identify the underlying obligation (First Cause of
Action) and (2) avoidance of Citibank's Deed of Trust on
the grounds that it fails to properly identify the record
owner of the Real Property (Second and Third Causes of
Action). [DE 2: Corrected Complaint].
now seeks the dismissal of this action pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, arguing
that the Plaintiff has failed to state claims upon which
relief can be granted. [DE 13]. The Plaintiff has filed a
Response in opposition to Citibank's motion [DE 21], and
Citibank has filed a Reply [DE 22], Having been fully
briefed, this matter is ripe for disposition.
STANDARD OF REVIEW
order to survive a motion to dismiss pursuant to Rule
12(b)(6), "a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief
that is plausible on its face.'" Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To
be "plausible on its face, " a plaintiff must
demonstrate more than "a sheer possibility that a
defendant has acted unlawfully." Iqbal, 556
U.S. at 678.
reviewing the complaint, the Court must accept the
truthfulness of all factual allegations but is not required
to assume the truth of "bare legal conclusions."
Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir.
2011). "The mere recital of elements of a cause of
action, supported only by conclusory statements, is not
sufficient to survive a motion made pursuant to Rule
12(b)(6)." Walters v. McMahen, 684 F.3d 435,
439 (4th Cir. 2012).
whether a complaint states a plausible claim for relief is
"a context-specific task, " Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009), which
requires the Court to assess whether the factual allegations
of the complaint are sufficient "to raise a right to
relief above the speculative level, " Twombly,
550 U.S. at 555. As the Fourth Circuit has explained:
To satisfy this standard, a plaintiff need not forecast
evidence sufficient to prove the elements of the claim.
However, the complaint must allege sufficient facts to
establish those elements. Thus, while a plaintiff does not
need to demonstrate in a complaint that the right to relief
is probable, the complaint must advance the plaintiff's
claim across the line from conceivable to plausible.
Walters, 684 F.3d at 439 (citations and internal
quotation marks omitted).
the well-pleaded factual allegations of the Complaint as
true, the following is a ...