United States District Court, E.D. North Carolina, Western Division
YAHUDAH WASHITAW OF EAST TERRA INDIANS, DAVID HOSKINS, KERKLON STACKHOUSE, AND SHAWN SINGLETARY, Plaintiffs,
PHH MORTGAGE CORPORATION, et al., Defendants.
Earl Britt Senior U.S. District Judge
matter is before the court on various motions.
proceeding pro se, appear to ask for three remedies:
land they once owned be returned to them; land they currently
own to be free of any encumbrances; and for an injunction to
prevent further interference from creditors. (See
Am. Compl., DE # 21, at 10-13.) Some plaintiffs assert they were,
or will soon be, wrongfully removed from their property,
apparently by some named defendants. (See id. at
10-11.) Others assert that some defendants are wrongfully
enforcing mortgage or tax collections against them. (See
id. at 11.) Plaintiffs appear to raise two causes of
action within these allegations. First, plaintiffs suggest
that the United Nations Declaration on the Rights of
Indigenous Peoples (“UNDRIP”) grants them certain
rights, and that defendants violated those rights by using
unconstitutional foreclosure procedures and enforcing land
taxation, amounting to trespass. (See id. at 3-5.)
Second, they appear to claim that North Carolina's
foreclosure procedures violate their due process rights under
the Fourteenth Amendment of the United States Constitution
because “a clerk and not an elected judge”
presided over their foreclosure proceedings. (Id. at
August and 5 September 2017, JPMorgan and Nationstar Mortgage
LLC (“Nationstar”), respectively, moved to
dismiss plaintiffs' complaint in its entirety. (DE ## 11,
14.) On 6 September 2017, plaintiffs amended their complaint
by right, removing Nationstar and adding DKL Investments LLC
(“DKL”) as a defendant. On 20 September 2017,
JPMorgan moved to dismiss plaintiffs' amended complaint
for the same reasons as it moved to dismiss their original
complaint. (DE # 28.) On 14 November 2017, defendant Caliber
Home Loans, Inc. f/k/a CIT Group/Sales Financing, Inc.
(“CIT Group”) also moved to dismiss
plaintiffs' amended complaint for similar reasons. (DE #
40.) Defendants PHH Mortgage Corporation, the State of North
Carolina, the United States, and DKL have not made an
appearance in the case.
Shawn Singletary and David Hoskins filed a response in
opposition to JPMorgan's motion to dismiss the amended
complaint, (DE # 34), to which JPMorgan filed a reply, (DE #
35), and Singletary and Hoskins filed a sur-reply, (DE # 44).
On 11 December 2017, Singletary and Hoskins filed a request
for an extension of time to respond to CIT Group's motion
to dismiss, (DE # 45), along with their response to CIT
Group's motion, (DE # 46). The request for an extension
of time to file is GRANTED.
moving defendants contend that plaintiffs have failed to
state any claim for relief and therefore request that the
court dismiss the amended complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6). That rule permits a court to
dismiss a complaint that does not “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 Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is plausible on its face if “the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Legal
conclusions and bare assertions devoid of further factual
enhancement do not constitute well-pled facts for motion to
dismiss purposes. See id. Although the court must
liberally construe a pro se plaintiff's pleadings,
Erickson v. Pardus, 551 U.S. 89, 94 (2007), it
“cannot ignore a clear failure to allege facts”
that set forth a cognizable claim, Johnson v. BAC Home
Loans Servicing, LP, 867 F.Supp.2d 766, 776 (E.D. N.C.
2011). If the court dismisses a plaintiff's complaint
upon a defendant's Rule 12(b)(6) motion and the same
legal arguments apply to its claims against remaining
defendants, the court may dismiss the complaint in its
entirety. See El-Bey v. Fletcher, No. 1:11CV901,
2012 WL 375233, at *2 n.1, 4 (M.D. N.C. Feb. 3, 2012) (order
and recommendation) (recommending dismissal of complaint in
its entirety when a party unpersuasively responded to
arguments for dismissal of claims against moving defendants
and those same arguments warranted dismissal of claim against
fail to state either claim they appear to raise. First,
plaintiffs are not immune from property taxation or
foreclosure as a result of some purported affiliation with
the Washitaw. See United States v. $7, 000.00 in U.S.
Currency, 583 F.Supp.2d 725, 732-33 (M.D. N.C. 2008)
(collecting cases and finding no international treaty granted
members of the Washitaw Nation immunity from federal law and
criticizing claims “attempt[ing] to benefit from the
protections of federal and state law while simultaneously
proclaiming their independence from and total lack of
responsibility under those same laws”). Further, courts
have consistently held that UNDRIP does not create a federal
cause of action. See, e.g., Isaac v.
Sigman, Civ. Action No. 16-5345 (FLW) (DEA), 2017 WL
2267264, at *6 (D.N.J. May 24, 2017) (collecting cases).
Consequently, to the extent plaintiffs rely on UNDRIP, they
do not state a claim upon which relief can be granted.
secondary due process argument also fails to state a claim.
Plaintiffs allege that having a clerk as opposed to an
elected judge preside over North Carolina's foreclosure
proceedings violates their Fourteenth Amendment due process
rights, but that is the extent of their allegations. They do
not explain what an elected judge presiding over the hearing
would do differently to offer some better opportunity to be
heard. Nor do they plead any other facts related to this
claim. More importantly, under North Carolina's
foreclosure under power of sale statute, the affected debtor
is entitled to notice of the hearing before the clerk; the
clerk of court is required to consider evidence of the
parties; the clerk's act of authorizing the foreclosure
sale is deemed a judicial act; and a party aggrieved by any
such act is entitled to appeal de novo to the
appropriate district or superior court judge. N.C. Gen. Stat.
§ 45-21.16. The statute “was enacted to meet the
[Fourteenth Amendment's] minimum due process requirements
of personal notice and a hearing.” Fed. Land Bank
of Columbia v. Lackey, 380 S.E.2d 538, 539-40 ( N.C.
App. 1989) (citation omitted), aff'd, 390 S.E.2d
138 ( N.C. 1990). Plaintiffs' apparent constitutional
claim does not set forth a cognizable claim.
plaintiffs request a remedy the court cannot grant. It
appears plaintiffs seek an injunction to stop current
foreclosure procedures and the enforcement of previous
foreclosure judgments. Because foreclosure proceedings are a
matter of state law, this federal court cannot grant an
injunction against these proceedings unless the injunction
is: “(1) expressly authorized by statute; (2) necessary
to aid the court's jurisdiction; or (3) required to
protect or effectuate the court's judgments.”
Denny's, Inc. v. Cake, 364 F.3d 521, 529 (4th
Cir. 2004). None of these circumstances are present. See
Fabian v. U.S. Bank, NA, No. 7:10-CV-00044-BR, 2010 WL
2510078, at *3 (E.D. N.C. June 17, 2010) (“No exception
to the [Anti-Injunction] Act applies, . . . [so] the court is
prohibited from enjoining the state foreclosure
action.”). Furthermore, this court, a federal court,
cannot undo the state court's foreclosure judgment.
See Smalley v. Shapiro & Burson, LLP, 526 F.
App'x 231, 235-37 (4th Cir. 2013). As a result,
plaintiffs fail to bring a cognizable claim for relief.
JPMorgan's and CIT Group's motions to dismiss are
GRANTED. For the same reasons, plaintiffs fail to state a
claim against the remaining defendants. This action is
DISMISSED WITH PREJUDICE. JPMorgan's and Nationstar's
motions to dismiss the initial complaint are DENIED as moot.
The Clerk is DIRECTED to close this case.
 On 25 July 2017,
“petitioners” David Hoskins, Shawn Singletary,
and Kerklon Stackhouse initiated this action on behalf of
themselves and other named individuals and the Yahudah
Washitaw of East Terra Indians with the filing a document
entitled “Notice of Return to Land Petition of
Prohibition Sales and Contract of Lands.” (DE # 1.) The
court construes this document as a complaint. On 6 September
2017, those same “petitioners” filed a
“Notice of Amended Petition Notice of Return to Lands
Petition of Prohibition Sales and Contract of Lands, ”
(DE # 21), which the court construes as an amended complaint.
In reciting plaintiffs' allegations and the relief they
seek, the court cites to the amended ...