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Willis v. Tritle

United States District Court, W.D. North Carolina, Asheville Division

February 26, 2019



          Martin Reidinger United States District Judge.

         THIS MATTER is before the Court on the Motions to Dismiss filed by Defendants Richard J. Maita, Chris John Dobson, and Bank of America [Docs. 7, 20, 22].


         The Plaintiffs Geri D. Willis and Carmen L. Willis, proceeding pro se, commenced this action on December 19, 2017, by filing a Complaint against the Defendants William W. Tritle (“Tritle”), Chris Jon Dobson (“Dobson”), Richard J. Maita (misidentified in the Complaint and Amended Complaint as “Richard Matlina” and hereinafter referred to as “Maita”), and Bank of America (“BANA”).[1] [Doc. 1]. Before any of the Defendants made an appearance or filed an answer, the Plaintiffs filed an Amended Complaint on February 8, 2018. [Doc. 5].

         Defendants Dobson, Maita, and BANA all now move to dismiss the Plaintiffs' Amended Complaint for failing to state a claim upon which relief can be granted.[2] [Docs. 7, 20, 22]. The Plaintiffs have responded to each of these motions. [Docs. 19, 25, 26].


         The central issue for resolving a Rule 12(b)(6) motion is whether the claims state a plausible claim for relief. See Francis v. Giacomelli, 588 F.3d 186, 189 (4th Cir. 2009). In considering Defendants' motions, the Court accepts the allegations in the Amended Complaint as true and construes them in the light most favorable to the Plaintiffs. Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 253 (4th Cir. 2009); Giacomelli, 588 F.3d at 190-92. When considering a motion to dismiss, the Court is obligated to construe a pro se complaint liberally, “however inartfully pleaded[.]” Booker v. S.C. Dep't of Corr., 855 F.3d 533, 540 (4th Cir. 2017), cert. denied, 138 S.Ct. 755 (2018) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)), cert. denied, 138 S.Ct. 755 (2018).

         Although the Court must accept any well-pleaded facts as true and construe such facts liberally, it is not required to accept “legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement....”, 591 F.3d at 255; see also Giacomelli, 588 F.3d at 189.

         The claims need not contain “detailed factual allegations, ” but must contain sufficient factual allegations to suggest the required elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also, 591 F.3d at 256. “[A] formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor will mere labels and legal conclusions suffice. Id. Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         The complaint is required to contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. at 1974; see also, 591 F.3d at 255. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; see also, 591 F.3d at 255. The mere possibility that a defendant acted unlawfully is not sufficient for a claim to survive a motion to dismiss., 591 F.3d at 256; Giacomelli, 588 F.3d at 193. Ultimately, the well-pled factual allegations must move a plaintiff's claim from possible to plausible. Twombly, 550 U.S. at 570;, 591 F.3d at 256.


         While the Plaintiffs' allegations are inartfully pled and difficult to discern, the following is a recitation of the relevant facts based upon the public record and the well-pled factual allegations asserted by the Plaintiffs.

         On December 22, 2006, the Plaintiffs obtained a loan in the amount of $352, 750.00 (the “Loan”) to purchase real property commonly known as 3690 Penland Road, Spruce Pine, North Carolina 28777 (the “Property”). The Loan was obtained through Professional Lending Services, a business owned and operated by Defendant Dobson. [Doc. 5 at 9 ¶¶ 5, 6, 9]. The Plaintiffs were represented by Defendant Maita in this transaction. [Id. at ¶¶ 6, 10].

         To secure the Loan, the Plaintiffs executed a promissory note (the “Note”) and deed of trust (the “Deed of Trust”)[3] in favor of Community Resource Bank, N.A. (“Lender”). [Doc. 20-2]. The Deed of Trust secures the Loan by placing a lien on the Property and also names Mortgage Electronic Registration Systems, Inc. (“MERS”) as its beneficiary as nominee for the Lender and the Lender's successors and assigns. [Id.]. On February 27, 2013, MERS, acting as nominee for the Lender, assigned its interest in the Deed of Trust to Federal National Mortgage Association (“Fannie Mae”). [See Doc. 20-3].[4]

         The Plaintiffs allege that at the closing in December 2006, the Loan that was presented to them contained terms that they had not agreed to. When the Plaintiffs refused to sign the documents, Defendant Dobson assured them that Defendant Tritle “would redo [the Loan] over right in the next 3 months to Countrywide.”[5] [Doc. 5: Am. Complaint at 4 ¶ III]. The Plaintiffs then signed the documents. [Id.]. However, the promised “redo” was never done, thereby causing the Plaintiffs “mental and physical damages” -- including high blood pressure, a stroke, the loss of employment, and “great humiliation.” [Id. at ¶¶ III, IV].

         The Plaintiffs allege that the “Loan Seller” posed as a conventional mortgage lender, thereby leading the Plaintiffs “to reasonably believe that the Loan Seller, the mortgage broker, and the loan originator had an interest in the success” of the transaction, i.e., the repayment of the loan. [Id. at 10 ¶ 14]. The Plaintiffs allege that the “Loan Seller” used an inflated appraisal, thereby adding “an undisclosed cost to the loan.” [Id. at 10 ¶ 17]. Later in the Complaint, the Plaintiffs allege that the “Defendants” failed to provide a HUD-1 Settlement Statement and other disclosures at the closing. [Id. at 12 ¶ 35].

         The Plaintiffs state that they have “every reason to believe” that “the party receiving the payments (Countrywide) is neither the holder in due course of the note nor the owner of any rights under the mortgage provisions of the deed of trust, ” and that their “payments are not being forwarded to the holder in due course of the note nor to any other authorized party.” [Id. at 10 ¶¶ 19, 20].

         The Plaintiffs allege that their “alleged loan closing” was in fact a “part of an undisclosed hidden illegal scheme to issue unregulated securities (mortgage backed securities) based upon the negotiation of non-negotiable notes, the terms of which have been changed, altered, amended or modified AFTER the execution by the Plaintiff[s].” [Id. at 11 ¶ 25]. As part of this scheme, the Plaintiffs allege that the “Defendants” failed to advise the Plaintiffs: (1) that the loan “was not in [the Plaintiffs'] best interest”; (2) that the terms of the loan “were less favorable than the fixed-rate loan which Defendants previously advised Plaintiff[s] that they qualified for”; (3) that the loan was “an inter-temporal transaction (transaction where terms, risks, or provisions at the commencement of the transaction differ at a later time) on which Plaintiff[s were] providing cover for Defendants' illegal activities”; (4) that the Plaintiffs “would likely be placed in a position of default, foreclosure, and deficiency judgment regardless of whether [they] met [their] loan obligations once the true lender or true holder(s) in due course appeared; and (5) that the originating lender “had no intention of retaining ownership interest in the mortgage loan or fully servicing same….” [Id. at 11-12 ¶¶ 28-33]. The Plaintiffs allege that they would not have entered into the loan transaction had “the true nature of this scheme [been] revealed….” [Id. at 11 ¶ 26].

         In July 2016, the Plaintiff Geri D. Willis reviewed the mortgage documents and discovered a supposed “fraudulent transfer of real property.” [Id. at 8 ¶ 3]. Specifically, the Plaintiffs contend that: “There was no valid assignment of mortgage, between Community Resource Bank who had our [mortgage] documents. [sic] On December 22, 2006, where on the same day we were told that we were really with Countrywide.” [Id. (emphasis in original)]. The Plaintiffs further contend that BANA committed “fraud” and a “breach of contract” by producing “fraudulent, ‘ta-da' endorsements of promissory notes.” [Id. at 8 ¶ 4].

         Based on these allegations, the Plaintiff assert causes of action for: (1) violations of the Home Ownership Equity Protection Act, 15 U.S.C. § 1639, et seq. (“HOEPA”); (2) violations of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601, et seq. (“RESPA”); (3) violations of the Truth-in- Lending Act, 15 U.S.C. § 1601 et seq. (“TILA”); (4) fraudulent misrepresentation; (5) breach of fiduciary duty; (6) unjust enrichment; (7) civil conspiracy; and (8) a civil violation under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (“RICO”). [Doc. 5 at 13-19]. The Plaintiffs seek compensatory damages [Id. at 19]; a rescission of the Loan transaction [Id. at 14 ¶ 58(a)]; and a declaration that the Plaintiffs alone are “the rightful holder[s] of title to the property and that Defendant[s] . . . be declared to have no estate, right, title or interest in said property.” [Id. at 18-19 ¶ 108].


         A. Plaintiffs' Claims for Violations of HOEPA and ...

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