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Wilkie v. Nationstar Mortgage LLC

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

October 8, 2019

ROBERT V. WILKIE, Plaintiff,
v.
NATIONSTAR MORTGAGE LLC d/b/a MR COOPER MORTGAGE LLC, Defendant.

          MEMORANDUM OF DECISION AND ORDER

          Martin Reidinger, Judge

         THIS MATTER is before the Court on the Defendant's Motion to Dismiss [Doc. 15]; the Plaintiff's “Notice of Motion and Motion for the Clerk of Court to Correct an Inadvertent Mistake by the Plaintiffs [sic]” [Doc. 20]; the Plaintiff's “Notice of Motion and Motion to Dismiss Defendant['s] Motion to Dismiss for Insufficiency of Process” [Docs. 25, 29][1]; and the Plaintiff's “Notice of Motion and Motion for a 7 Day Leave to File and Amend Complaint” [Doc. 26].

         I. PROCEDURAL BACKGROUND

         On February 15, 2019, the Plaintiff initiated this action against “Nationstar Insurance Company.” [Doc. 1]. The Plaintiff served the Defendant Nationstar Mortgage LLC (“Nationstar”) with a Summons and the Complaint on March 30, 2019. On April 22, 2019, Nationstar sought an extension of time until May 21, 2019, to respond to the Complaint. [Doc. 9]. The Court granted Nationstar's motion on April 23, 2019. [Doc. 10]. On May 6, 2019, the Plaintiff filed an Amended Complaint alleging four claims for relief against Nationstar.[2] [Doc. 12].

         On May 21, 2019, Nationstar filed a Motion to Dismiss the Amended Complaint pursuant to Rule 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure on the grounds that the Court lacks subject matter jurisdiction and that the Amended Complaint fails to state a claim upon which relief may be granted. [Doc. 15]. On June 12, 2019, the Honorable W. Carleton Metcalf, United States Magistrate Judge, entered an Order giving the Plaintiff until June 21, 2019, to respond to Nationstar's Motion. [Doc. 16]. On June 13, 2019, the Plaintiff attempted to file a Second Amended Complaint [Doc. 18]; however, Judge Metcalf struck that pleading because it failed to comply with Rule 15(a)(2) of the Federal Rules of Civil Procedure.[3] [Doc. 19].

         On June 19, 2019, the Plaintiff filed a pleading entitled “Notice of Motion and Motion for the Clerk of Court to Correct an Inadvertent Mistake by the Plaintiffs” [Doc. 20]. In this Motion, the Plaintiff indicates that he wishes to amend his Complaint to change the name of the defendant to “Nationstar Mortgage LLC dba Mr. Cooper.” [Id.]. Nationstar filed a Response in opposition to this motion to amend on July 2, 2019. [Doc. 23]. On July 1, 2019, the Plaintiff filed a second motion to amend, along with a proposed amended complaint. [Doc. 26]. After receiving an extension of time to do so [Doc. 28], Nationstar filed a Response in opposition to this second motion to amend on July 29, 2019. [Doc. 30].

         On July 1, 2019, the Plaintiff filed a motion seeking the dismissal of the Nationstar's Motion to Dismiss on the grounds that the Motion was not properly served pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure. [Doc. 25]. The Plaintiff filed a substantially identical version of this motion again on July 18, 2019. [Doc. 28]. Nationstar filed a Response in opposition to these two motions on July 29, 2019. [Doc. 31]. These matters are now ripe for disposition.

         II. STANDARD OF REVIEW

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) addresses whether the Court has subject matter jurisdiction to hear the dispute. See Fed.R.Civ.P. 12(b)(1). Where a defendant contends that a complaint fails to allege facts upon which subject matter jurisdiction can be based, the Court must assume as true the factual allegations in the Complaint. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). If, on the other hand, a defendant contends that the jurisdictional allegations contained in the complaint are false, the court may go beyond the allegations of the complaint and conduct an evidentiary hearing to determine if there are facts to support the court's exercise of jurisdiction over the dispute. Id. The burden of establishing subject matter jurisdiction on a motion to dismiss rests with the party asserting jurisdiction. Id.; Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995).

         III. FACTUAL BACKGROUND

         Taking the well-pled factual allegations in the Complaint as true, and taking judicial notice of certain public records referenced in the Complaint, the following is a summary of the relevant facts.[4]

         On February 23, 2006, Judith S. Wilkie (“Borrower”), who is the deceased spouse of the Plaintiff, executed a Deed of Trust (“Deed of Trust”) in favor of Access National Mortgage. The Deed of Trust secured repayment of a Note in the amount of $100, 779.00. [See Doc. 15-2 Ex. A: Deed of Trust].[5] The Deed of Trust related to the property located at 601 Dixie Avenue NW, Valdese, North Carolina 28690. [Id.]. After the Borrower passed away, the Plaintiff became the executor of the Borrower's estate. Due to a default on the mortgage loan, Trustee Services of Carolina, LLC (“Trustee”), the substitute trustee under the Deed of Trust, served a Notice of Foreclosure Hearing on the Plaintiff on July 10, 2018. [See Doc. 15-2 Ex. B: Notice of Hearing].[6] The Trustee named Nationstar as the current holder of the Note and set a hearing in front of the Clerk of Superior Court for Burke County, North Carolina (the “Clerk”) for August 14, 2018. [Id.].

         The Plaintiff generally alleges that Nationstar made false representations to the Clerk in an affidavit but fails to specifically identify the representations. [Doc. 12: Am. Compl. at ¶ 1]. The Plaintiff claims that he was only two months behind on the loan and that Nationstar was not applying a suspense balance to the loan. [Id. at ¶¶ 2-3]. However, the two documents attached to the Amended Complaint and referenced by the Plaintiff therein appear to contradict these allegations. First, “Ex. A, Doc. 1” appears to be a payoff quote which does not show the delinquency of the loan. [Doc. 12 at 7: Am. Complaint Ex. A, Doc. 1]. Second, “Ex. A, Doc. 2” is a letter from Nationstar dated May 3, 2018 stating that the loan was three (3) payments delinquent at that time. [Doc. 12 at 8: Am. Compl. Ex. A, Doc. 2]. The Plaintiff does not allege in the Amended Complaint that he made any additional payments prior to the foreclosure.

         The foreclosure hearing went forward on August 14, 2018 and, after the hearing, the Clerk entered an Order to Allow Foreclosure (“Foreclosure Order”) on the same day. [See Doc. 15-2 Ex. C: Order to Allow Foreclosure]. The Plaintiff attempted to appeal this Order on October 19, 2018. However, this appeal was well outside of the ten (10) day time period prescribed under N.C. Gen. Stat. § 45-21.16(d1). [See Doc. 15-2 Ex. D: Appeal]. Moreover, the foreclosure sale had already occurred on September 7, 2018. [See Doc. 15-2: Ex. E: Order Dismissing Appeal]. Therefore, the Superior Court of Burke County dismissed the appeal. [Id.].

         The Plaintiff claims that he submitted documents for a loan modification to Nationstar, but the emails he attaches to Nationstar show that those documents were submitted on September 5, 2018, after the foreclosure hearing on August 14, 2018. [Doc. 12 at 9: Am. Compl. ¶ 4, Ex. A, Doc. 3]. The Plaintiff also makes a variety of conclusory allegations alleging that Nationstar engaged in dual tracking; that he was entitled to a loan modification; and that Nationstar cannot prove a default, among other allegations. [Id. at ¶¶ 5-16].

         The Plaintiff claims that he is asserting four claims for relief in the case caption: (1) Predatory Lending; (2) Fraud; (3) Breach of Contract; and (4) Dual Tracking. [Doc. 12 at 1]. However, it is unclear in the body of the Amended Complaint how his allegations relate to these claims. The Plaintiff further claims that his damages ...


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