United States District Court, E.D. North Carolina, Southern Division
ORDER AND MEMORANDUM AND RECOMMENDATION
E. GATES A UNITED STATES MAGISTRATE JUDGE
pro se case is before the court on the application to proceed
in forma pauperis under 28 U.S.C. § 1915(a)(1)
(D.E. 1) by plaintiff Marian Elizabeth Dubar
("plaintiff), and for a frivolity review pursuant to 28
U.S.C. § 1915(e)(2)(B). These matters were referred to
the undersigned magistrate judge pursuant to 28 U.S.C. §
636(b)(1)(A) and (B), respectively. See D.E. dated 1
Feb. 2019. As set out below, the motion to proceed in
forma pauperis will be allowed, and it will be
recommended that plaintiffs claims be dismissed for lack of
subject matter jurisdiction.
ON IN FORMA PAUPERIS MOTION
court finds that plaintiff has adequately demonstrated her
inability to prepay the required court costs. Her motion to
proceed in forma pauperis is therefore ALLOWED.
AND RECOMMENDATION ON FRIVOLITY REVIEW
commenced this action on 31 January 2019. Her proposed
complaint (D.E. l-l)is on a preprinted complaint form, entitled
"Complaint and Request for Injunction," to which
are attached nine exhibits (D.E. 1-2 to 1-10).
alleged facts underlying plaintiffs complaint appear to be as
follows: In 1999, plaintiff entered into a mortgage and
promissory note on her home in Bolton, Columbus County, North
Carolina. See Motion to Enforce (D.E. 1-6) 1
(referencing 1999 mortgage and note); Aff. of Witness (D.E. 1-9
at pp. 2-3) 2 (giving address for plaintiff). As of 2018,
defendant Ditech Financial LLC ("Ditech") was the
creditor on plaintiffs mortgage and note. See Credit
Agreement Payoff ("CAP") Security and Lien
Release (D.E. 1-7 at pp. 3-4) 3. Ditech's
account for plaintiffs debt to it was no. 88150303-1.
January 2018, plaintiff issued a CAP Security and Lien
Release (D.E. 1-7 at pp. 3-4), labeled as Certified
Negotiable Security No. 000016780, purporting to provide for
payment of the remaining balance on plaintiffs debt to Ditech
in the amount of $83, 000.00 on specified
terms.On 9 January 2019, plaintiff had a copy of
the CAP Security and Lien Release hand delivered by a
messenger, Steven Gross, on Lisa Thomas at the office of
Ditech in Fort Washington, Pennsylvania. See Compl.
§ III.A, C; Aff. of Steven Gross (D.E. 1-8) 1. The CAP
Security and Lien Release was accompanied by a letter (D.E.
1-7 at p. 2) to defendant Gerald "Jerry" Lombardo,
the chief financial officer of Ditech, explaining that it
provided for the release of plaintiff from her debt to
Ditech. See Compl. § I.B.2 (identifying
Lombardo as Ditech's chief financial officer). The
delivery of the CAP Security and Lien Release on Ditech
effected the release of plaintiff from her debt to Ditech.
See Compl. § III.C. Ditech breached its
obligations under the CAP Security and Lien Release by not
releasing plaintiff from her debt. See Id. §
III. A., V. The breach occurred on 21 January 2019
(id. § V) and 30 January 2019 (id.
January 2019, plaintiff issued a check payable to Ditech in
the amount of $83, 000.00. Check (D.E. 1-9 at p. 1).
Plaintiff remained at her residence from 12 to 15 January
2019 between 8:00 a.m. to 5 p.m. waiting for a Ditech
representative to pick up the check. Aff. of Witness (D.E.
1-9 at pp. 2-3) 2. As of 16 January 2019, the date of
execution of the affidavit by plaintiff, no representative of
Ditech had come to pick up the check. Id. Ditech
violated the CAP Security and Lien Release in this additional
characterizes the claims she asserts in various ways,
including as trespass, breach of and default on the terms of
the CAP Security and Lien Release, breach of and default on
terms of the mortgage and note, physical and mental anguish,
emotional distress, fraud, racketeering, negligence, lack of
jurisdiction, loss of employment, and harm to her good name.
See, e.g., Compl. § II.B.3; PL's Start.
(D.E. 1-2) ¶¶ 1, 2, 6, 10 & True Bill; Verified
Aff. of Injury (D.E. 1-3) ¶¶ 2, 3, 12; Mot. to
Enforce (D.E. 1-6) 1-2. Plaintiff seeks specific performance
of the CAP Security and Lien Release and the "Remedy of
Satisfaction of [the] Mortgage" to the property in
Bolton. See Mot. to Enforce (D.E. 1-6); Compl.
¶ V. She seeks $5 million in damages. Compl. §
II.B.3; True Bill (DE. 1-2 at p. 3) (showing breakdown of
complaint form plaintiff used alleges "federal
question" as the basis for jurisdiction.Compl. § II.
In response to the directive to provide the specific federal
statute, federal treaty, and/or provision of the United
States Constitution at issue, plaintiff identified only N.C.
Gen. Stat. § 25-3-104. Id. § II.A. She did
not complete the portion of the form for cases based on
diversity of citizenship, which sought the citizenship of the
parties, although she lists a North Carolina address for
herself and the same Pennsylvania address for
defendants. Id. §§ LA, B; II.B.2.
APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW
allowing a party to proceed in forma pauperis, as
here, the court must conduct a frivolity review of the case
pursuant to 28 U.S.C. § 1915(e)(2)(B). The court must
dismiss the complaint if it determines that the action is
frivolous or malicious, 28 U.S.C. § 1915(e)(2)(B)(i);
fails to state a claim upon which relief can be granted,
id. § 1915(e)(2)(B)(ii); or seeks monetary
relief from an immune ...