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Dubar v. Ditech Financial LLC

United States District Court, E.D. North Carolina, Southern Division

March 6, 2019

MARIAN ELIZABETH DUBAR, Plaintiff,
v.
DITECH FINANCIAL LLC and GERALD LOMBARDO, Defendants.

          ORDER AND MEMORANDUM AND RECOMMENDATION

          JAMES E. GATES A UNITED STATES MAGISTRATE JUDGE

         This 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.

         ORDER ON IN FORMA PAUPERIS MOTION

         The 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.

         MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW

         I. BACKGROUND

         Plaintiff commenced this action on 31 January 2019. Her proposed complaint (D.E. l-l)[1]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).

         The 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)[2]; 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[3] (D.E. 1-7 at pp. 3-4) 3. Ditech's account for plaintiffs debt to it was no. 88150303-1. Id.

         On 2 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.[4]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. § III.A).

         On 12 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 manner. Id.

         Plaintiff 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 damages).

         The complaint form plaintiff used alleges "federal question" as the basis for jurisdiction.[5]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.[6] Id. §§ LA, B; II.B.2.

         II. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW

         After 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. ยง 1915(e)(2)(B)(ii); or seeks monetary relief from an immune ...


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