United States District Court, W.D. North Carolina, Asheville Division
GERI D. WILLIS and CARMEN L. WILLIS, Plaintiffs,
WILLIAM W. TRITLE, CHRIS JON DOBSON, RICHARD J. MAITA, and BANK OF AMERICA, Defendants.
Reidinger United States District Judge.
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].
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”). [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].
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. [Docs. 7, 20,
22]. The Plaintiffs have responded to each of these motions.
[Docs. 19, 25, 26].
STANDARD OF REVIEW
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. Consumeraffairs.com, 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).
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....” Consumeraffairs.com, 591 F.3d
at 255; see also Giacomelli, 588 F.3d at 189.
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 Consumeraffairs.com, 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
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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 Consumeraffairs.com, 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
Consumeraffairs.com, 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.
Consumeraffairs.com, 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; Consumeraffairs.com, 591 F.3d at 256.
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.
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].
secure the Loan, the Plaintiffs executed a promissory note
(the “Note”) and deed of trust (the “Deed
of Trust”) 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].
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.” [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].
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].
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].
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].
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].
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].
Plaintiffs' Claims for Violations of HOEPA and ...