United States District Court, W.D. North Carolina, Asheville Division
GERI D. WILLIS and CARMEN WILLIS, Plaintiffs,
WLLIAM W. TRITLE; CHRIS JON DOBSON; RICHARD J. MAITA; and BANK OF AMERICA, Defendants.
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant William W.
Tritle's Motion for Judgment on the Pleadings. [Doc. 37].
Plaintiffs Geri D. Willis and Carmen L. Willis (collectively
“Plaintiffs”), 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
“Defendants”). [Doc. 1]. On February 8, 2018,
Plaintiffs filed an Amended Complaint before any of the
Defendants made an appearance or filed an answer. [Doc. 5].
Plaintiffs' Amended Complaint alleges (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 ¶¶ 39-102]. Defendants Dobson, Maita,
and BANA each moved to dismiss the Plaintiffs' Amended
Complaint for failure to state a claim upon which relief can
be granted. [Docs. 7, 20, 22]. The Plaintiffs responded to
each of those motions. [Docs. 19, 25, 26].
February 26, 2019, this Court granted Defendant Dobson and
Defendant Maita's Motions to Dismiss. [Doc. 34]. This
Court denied Defendant BANA's Motion to Dismiss regarding
Counts I and III, which alleged HOEPA and TILA violations,
but dismissed the Plaintiffs' other claims against BANA.
the other Defendants, Defendant Tritle, proceeding pro
se, filed an Answer to Plaintiffs' Complaint on
April 5, 2018. [Doc. 18]. On April 24, 2018, counsel for
Defendant Tritle filed a Notice of Appearance. [Doc. 23].
Through counsel, Defendant Tritle filed a Motion to Amend his
Answer to the First Amended Complaint on May 18, 2018. [Docs.
28, 29]. On February 22, 2019, this Court issued an Order
granting Defendant Tritle's Motion. [Doc. 32]. On the
same day, Defendant Tritle filed the Amended Answer to the
Amended Complaint. [Doc. 33]. On March 14, 2019, Defendant
Tritle filed this Motion for Judgment on the Pleadings under
Federal Rule of Civil Procedure 12(c) and 12(h)(2) for
failure to state a claim upon which relief can be granted.
STANDARD OF REVIEW
Rule 12(c), “[a]fter the pleadings are closed-but early
enough not to delay trial-a party may move for judgment on
the pleadings.” Fed.R.Civ.P. 12(c). Motions under Rule
12(c) can include failure to state a claim upon which relief
can be granted. See Fed.R.Civ.P. 12(h)(2).
“Rule 12(c) motions are governed by the same standard
as motions brought under Rule 12(b)(6).” Massey v.
Ojaniit, 759 F.3d 343, 347 (4th Cir. 2014) (citing
Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th
to survive a motion for judgment on the pleadings for failure
to state a claim, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). To be “plausible on its face, ” a
plaintiff must demonstrate more than “a sheer
possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678.
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) (quoting Erickson v. Pardus, 551
U.S. 89, 94 (2007)). In considering the Defendant's
Motion for Judgment on the Pleadings, 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); Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). 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 . . .
.” Consumeraffairs.com, 591 F.3d at 255;
see also Giacomelli, 588 F.3d at 189.
whether a complaint states a plausible claim for relief is
“a context-specific task, ” Giacomelli,
588 F.3d at 193, which requires the Court to assess whether
the factual allegations of the complaint are sufficient
“to raise the right to relief above the speculative
level, ” Twombly, 550 U.S. at 555. As the
Fourth Circuit has explained:
To satisfy this standard, a plaintiff need not forecast
evidence sufficient to prove the elements of the claim.
However, the complaint must allege sufficient facts to
establish those elements. Thus, while a plaintiff does not
need to demonstrate in a complaint that the right to relief
is probable, the complaint must advance the plaintiff's
claim across the line from conceivable to plausible.
Walters, 684 F.3d at 439 (citations and internal
quotation marks omitted).
allegations contained in the Plaintiffs' Amended
Complaint are inartfully pled and difficult to discern. The
following summarizes the relevant facts based on the public
record and the well-pled factual allegations asserted by the
Plaintiffs, which are taken as true. The Court also considered
the factual allegations contained in Defendant Tritle's
Amended Answer to the Complaint, see Rinaldi v. CCX,
Inc., No. 3:05-CV-108, 2008 WL 2622971, at *2 n. 3 (W.D.
N.C. July 2, 2008), “where and to the extent they have
not been denied or do not conflict with the complaint,
” Jadoff v. Gleason, 140 F.R.D. 330, 331 (M.D.
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.
[Doc. 5 at ¶¶ 5, 6, 9]. Defendant Tritle was the
President of Professional Lending Services. [Id. at
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
secured the Loan by placing a lien on the Property and named
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”). [Doc. 20-3].
Plaintiffs allege that they had not agreed to terms contained
in the Loan presented to them at closing on December 2006.
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 at ¶ III]. The Plaintiffs
then signed the documents. [Id.]. However, the
promised “redo” was never done, which caused 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, 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 ¶ 14]. The
Plaintiffs further allege that the “Loan Seller”
used an inflated appraisal, which added “an undisclosed
cost to the loan.” [Id. at ¶ 17]. At the
closing, the Plaintiffs allege that the Defendants failed to
provide a HUD-1 Settlement Statement and other disclosures
required by TILA. [Id. at ¶ 35].
Plaintiffs state 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 their “payments are not
being forwarded to the holder in due course of the note nor
to any other authorized party.” [Id. at
¶¶ 19, 20].
Plaintiffs claim 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 ¶ 25]. As part of
this scheme, the Plaintiffs allege that the Defendants failed
to advise the Plaintiffs that: (1) the loan “was not in
[the Plaintiffs'] best interest”; (2) the terms of
the loan “were less favorable than the fixed-rate loan
which Defendants previously advised Plaintiff[s] that they
qualified for”; (3) 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 Plaintiffs [were] providing cover
for Defendants' illegal activities”; (4) 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) the originating ...