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Reaves v. Trustee Services of Carolina

United States District Court, E.D. North Carolina, Western Division

May 24, 2018



          LOUISE W. FLANAGAN United States District Judge.

         This matter is before the court regarding defendant's motion to dismiss for lack of jurisdiction and for failure to state a claim (DE 14). Plaintiff has not responded and the time for response has expired. In this posture, the issues raised are ripe for ruling. For the following reasons, defendant's motion is granted.


         Plaintiff commenced this action pro se on August 9, 2017, asserting that her residential mortgage loan “is or was at any time serviced by” defendant. (Compl. (DE 1) at 1). Plaintiff claims that defendant violated federal law, including the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601, et seq. (“RESPA”) and the Fair Debt Collection Practices Act, 15 U.SC. §§ 1692 et seq. (“FDCPA”), as well as state and common law, in connection with its servicing of plaintiff's mortgage loan. Plaintiff asserts that the amount in controversy exceeds $5, 000, 000.00, and she asserts unspecified injury. Plaintiff attaches voluminous documentation exceeding 550 pages in length that she asserts is part of the complaint.

         Upon plaintiff's motion for extension of time to make service, the court on January 11, 2018, allowed plaintiff to make service on or before February 13, 2018. Plaintiff filed on January 25, 2018, documentation regarding service relating back to August 9, 2017, as proof of service in this case. Six days later, on January 31, 2018, a document styled as a motion to dismiss was filed by an attorney identified as Aaron B. Anderson, purporting to represent defendant in accordance with a “Limited Special Appearance.” (Mot. to Dismiss (DE 9) at 1). On February 7, 2018, the court noted deficiency in the form of the motion and deficiency in appearance by counsel and filing method. The court held in abeyance time for response to that motion to dismiss and directed counsel for defendant to cure deficiencies as noted in the order.

         On February 20, 2018, counsel entered a notice of appearance on behalf of defendant and filed the instant motion to dismiss. Defendant seeks dismissal of the complaint for insufficient process; insufficient service of process; lack of personal jurisdiction; failure to state a claim; and lack of subject matter jurisdiction, [1] under Federal Rules of Civil Procedure 8(a)(2), 12(b). In support of the instant motion, defendant relies upon a memorandum in support, with attachments including a North Carolina Secretary of State printout; an appointment of substitute trustee; and an order to allow foreclosure sale.

         A day later, on February 21, 2018, Aaron B. Anderson filed a “notice of no representation” in response to the court's order. On February 26, 2018, referencing the instant motion to dismiss filed February 20, 2018, the clerk issued a letter to plaintiff providing notice of the filing of the instant motion to dismiss and the time period for response thereto by March 16, 2018. On the same date, the court entered a text order allowing Aaron B. Anderson to withdraw, and, noting the instant “new motion, ” the court observed that “the clerk properly has noticed plaintiff, proceeding pro se, of the response deadline to that motion.” (Feb. 26, 2018, Text Order).


         A. Standard of Review

         Rule 12 permits dismissal of a complaint for “lack of subject-matter jurisdiction, ” “lack of personal jurisdiction, ” “insufficient process, ” “insufficient service of process, ” and “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b). To state a claim for relief, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a).

         “To survive a motion to dismiss” under 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff, ” but does not consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement[, ] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).

         B. Analysis

         1. Service of Process

         “Unless service is waived, proof of service must be made to the court.” Fed.R.Civ.P. 4(l). “If a defendant is not served within 90 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed.R.Civ.P. 4(m). A corporation, partnership, or ...

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