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Willis v. Tritle

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

July 12, 2019




         THIS MATTER is before the Court on Defendant William W. Tritle's Motion for Judgment on the Pleadings. [Doc. 37].


         The 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 (“BANA”) (collectively “Defendants”).[1] [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].

         The 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].

         On 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. Id.

         Unlike 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.


         Under 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 Cir.1999)).

         Therefore, 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.

         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) (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., 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 . . . .”, 591 F.3d at 255; see also Giacomelli, 588 F.3d at 189.

         Determining 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).


         The 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.[2] 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. N.C. 1991).

         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. [Doc. 5 at ¶¶ 5, 6, 9]. Defendant Tritle was the President of Professional Lending Services. [Id. at 2].

         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 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].[4]

         The 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.”[5] [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].

         The 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].

         The 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].

         The 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 ...

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