United States District Court, E.D. North Carolina, Eastern Division
C. 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." Id.
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. Consumer affairs. 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. 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. 26].
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