United States District Court, E.D. North Carolina, Eastern Division
DEVER III CHIEF UNITED STATES DISTRICT JUDGE
15, 2017, Karolina Sorensson ("Sorensson" or
"plaintiff'), proceeding pro se and in forma
pauperis [D.E. 1, 4] filed a complaint against Ditech
Financial, LLC ("Ditech" or "defendant")
alleging improper debt collection techniques concerning a
mortgage on a property located in Beaufort, North Carolina
("property") [D.E. 5]. See [D.E. 28] 2. On December
18, 2017, Ditech moved to dismiss the complaint for failure
to state a claim [D.E. 18], and filed a memorandum in support
[D.E. 19]. On January 16, 2018, Sorensson responded [D.E.
24]. On January 25, 2018, Ditech replied [D.E. 25]. On April
6, 2018, Sorensson moved to cancel the foreclosure sale
concerning her residence [D.E. 26]. On April 30, 2018, Ditech
responded in opposition [D.E. 28]. On May 11, 2018, Sorensson
filed additional documents [D.E. 29]. On January 23, 2018,
during this litigation's pendency, Sorensson filed an
additional lawsuit against Ditech in Carteret County Superior
Court alleging the same set of facts. Ditech removed that
action to this court. See Sorensson v. Ditech Financial
LLC. No. 4:18-CV-42-D (Sorensson II). Sorensson II
includes an identical motion to dismiss and motion for
cancellation of the foreclosure sale [D.E. 12, 15]. As
explained below, the court grants Ditech's motions to
dismiss, and denies Sorensson's motions to cancel
19, 2007, Sorensson executed a promissory note on a home loan
in the amount of $159, 920.00. See [D.E. 19] 1. Subsequently,
Ditech acquired the promissory note. See id Sorensson
defaulted on that loan, and Ditech initiated foreclosure
proceedings "on or about February 10, 2017 in the
Superior Court for Carteret County, North Carolina."
Id. at 2. On May 15, 2017, Sorensson filed this
action. Sorensson alleges that Ditech used "unethical,
unnecessarily aggressive, predatory tactics to collect a
debt/foreclose [her] home" including "harassment,
apparent retaliation, intimidation, [and] white collar
crime." Compl. [D.E. 5] 6. She alleges that the loan was
illegally perpetuated, that Ditech changed the account number
without notice, that Ditech used attorneys not licensed to
practice in the State of North Carolina to foreclose on the
home, and that the loan was predatory in nature. See id She
also alleges "discrimination against gender, marital
status, disability/challenges, and race among other."
motion to dismiss under Rule 12(b)(6) tests the
complaint's legal and factual sufficiency. See
Ashcroft v. Iqbal. 556 U.S. 662, 677-80 (2009); Bell
Atl. Corp. v. Twombly. 550 U.S. 544, 554-63 (2007);
Giarratano v. Johnson. 521 F.3d 298, 302 (4th Cir.
2008). To withstand a Rule 12(b)(6) motion, a pleading
"must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face." Iqbal. 556 U.S. at 678 (quotation
omitted); see Twombly. 550 U.S. at 570;
Giarratano. 521 F.3d at 302. In considering the
motion, the court must construe the facts and reasonable
inferences "in the light most favorable to the
[nonmoving party]." Massey v. Oianiit 759 F.3d
343, 353 (4th Cir. 2014) (quotation omitted); see
Clatterbuck v. City of Charlottesville. 708F.3d 549,
557 (4th Cir. 20131 abrogated on other grounds
by Reed v. Town of Gilbert. 135 S.Ct. 2218 (2015). A
court need not accept as true a complaint's legal
conclusions, "unwarranted inferences, unreasonable
conclusions, or arguments." Giarratano. 521
F.3d at 302 (quotation omitted); see Iqbal. 556 U.S.
at 678-79. Rather, a plaintiffs allegations must "nudge[
] [her] claims," Twombly. 550 U.S. at 570,
beyond the realm of "mere possibility" into
"plausibility." Iqbal. 556 U.S. at 678-79.
evaluating a motion to dismiss, a court considers the
pleadings and any materials "attached or incorporated
into the complaint." E.I, du Pont de Nemours &
Co. v. Kolon Indus.. Inc.. 637 F.3d 435, 448 (4th Cir.
2011); see Fed.R.Civ.P. 10(c); Thompson v. Greene.
427 F.3d 263, 268 (4th Cir. 2005). A court also may take
judicial notice of public records without converting the
motion to dismiss into a motion for summary judgment.
See, e.g.. Fed.R.Evid. 201; Tellabs.
Inc. v. Makor Issues & Rights. Ltd.. 551 U.S. 308,
322 (2007); Philips v. Pitt Ctv. Mem'l Hosp..
572 F.3d 176, 180 (4th Cir. 2009).
standard used to evaluate the sufficiency of a pleading is
flexible, "and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers." Erickson v.
Pardus. 551 U.S. 89, 94 (2007) (per curiam) (quotation
omitted). Erickson, however, does not "undermine [the]
requirement that a pleading contain 'more than labels and
conclusions.'" Giarratano. 521 F.3d at 304
n.5 (quoting Twombly, 550 U.S. at 555); see Iqbal.
556 U.S. at 677-83; Coleman v. Md. Court of Appeals.
626 F.3d 187, 190 (4th Cir. 2010), affd, 566 U.S. 30
(2012):Nemet Chevrolet Ltd. v. Consumeraffairs.com.
Inc.. 591 F.3d250, 255-56 (4thCir. 2009); Francis v.
Giacomelli. 588 F.3d 186, 193 (4th Cir. 2009).
complaint mentions one legal cause of action, a violation of
42 U.S.C. § 3631, which prohibits persons from
interfering with the "selling, purchasing, renting,
financing, occupying, or contracting or negotiating for the
sale, purchase, rental, financing or occupation of any
dwelling" because of a person's "race, color,
religion, sex, handicap, ... familial status, ... or national
origin." 42 U.S.C. § 3631. Sorensson makes only two
factual claims concerning this allegation. First, that Ditech
allegedly refused to remove her ex-husband's name from
the loan, calling this refusal a "weapon of intimidation
to collect a debt. . . us[ing] [her] marital status" and
an "invasion of privacy" evincing "malicious
intent since the defendant was forcing me to fax them proof
of public records." [D.E. 24] 2-A. Second,
Sorensson alleges that "other ethnic groups, and
populations, other than mine, are NOT treated in the same
manner as ... Ditech ha[s] treated me[, ]" and that
Ditech is "working on actions that keep Hispanic
disabled females... in the situation where [they] can never
become homeowners becomes of the perpetuation of the
debt." Compl. at 4; [D.E. 24] 5.
conclusory allegations do not plausibly allege discrimination
prohibited by 42 U.S.C. § 3631. C£ United
States v. Nichols. 149 Fed.Appx. 149, 151 (4th Cir.
2005) (per curiam) (unpublished); United States v.
Wildes. 120 F.3d 468, 469 (4th Cir. 1997). Moreover, 42
U.S.C. § 3631 is a criminal statute and does not create
a private right of action for discriminatory housing
practices. See Jack v. Stubblefield. 5:09-CV-00046,
2009 WL 1809931, at *2 (W.D. Va. June 22, 2009)
(unpublished), affd. 342 Fed.Appx. 902 (4th Cir.
2009) (per curiam) (unpublished).
remaining claims concern various business practices that she
dislikes. See Compl. at 4-5. These alleged practices
include the transfer of her debt from one institution to
another, her apparent difficulty in contacting these
companies, and a change in her account number. See
id. Sorensson alleges that these practices amount to
"predatory lending" practices. See Compl.
at 5, [D.E. 24] 5.
Carolina does not recognize a cause of action for
"predatory lending." See Stephens v. Bank of
Am. Home Loans. Inc.. 5:16-CV-660-BR, 2017 WL 4322816,
*3 (E.D. N.C. Sept. 28, 2017) (unpublished). Accordingly,
that claim fails.
April 6, 2018, Sorensson moved to cancel the foreclosure sale
of the property. See [D.E.A 26]. In that
motion she reasserted the contentions raised in the complaint
and elaborated in her response to the motion to dismiss.
See [D.E. 24]; [D.E. 26]. In particular, Sorensson
contends that Ditech improperly set her rates, denied her
forbearance, and illegally perpetuated the loan after its
expiration. See Compl. at 6; [D.E. 24] 4-6; [D.E.
to this lawsuit, Ditech instituted foreclosure proceedings on
the property in Carteret County Superior Court. See [D.E. 28]
2. On February 15, 2018, the Carteret County Clerk of Court
issued a foreclosure order for the property. See
[D.E. 28-1]. Sorensson did not timely appeal that order or
post a bond. See [D.E. 28] 2. "n April 12, 2018, the
Property was foreclosed upon via public sale."
Id. at 2-3; see [D.E. 28-2]. Sorensson failed to
submit an upset bid within the 10-day window provided by N.C.
Gen. Stat. § 45-21.29A, or a bond to stay the
foreclosure sale under N.C. Gen. Stat. § 1-292. See
[D.E. 28] 3. The sale was confirmed on April 24, 2018.
See [D.E. 28] 3; [D.E. 28-3].
failed to contest the foreclosure proceedings according to
governing North Carolina law. Sorensson may not collaterally
attack the foreclosure proceedings here. See,
e.g.. Vicks v. Ocwen Loan Servicing. LLC. No.
3:16-CV-00263-FDW, 2017 WL 2490007, at *2-3 (W.D. N.C. June
8, 2017) (unpublished), affd, 704 Fed.Appx. 241 (4th Cir.
2017) (per curiam) (unpublished); Locklear v. Fed. Home
Mortg. Corp.. No. 7:16-CV-344-D, 2017 WL 1737634, at *4
(E.D. N.C. May 1, 2017) (unpublished;): Hardin v. Bank of
Am.. N. A.. No. 7:16-CV-75-D, 2017 WL 44709, at *5 (E.D.
N.C. Jan. 3, 2017) (unpublished); Newton v. Nationstar
Mortg. LLC. No. 7:15-CV-16-D, 2015 WL 3413256, at *3