United States District Court, W.D. North Carolina, Asheville Division
ROBERT V. WILKIE, Plaintiff,
NATIONSTAR MORTGAGE LLC d/b/a MR COOPER MORTGAGE LLC, Defendant.
MEMORANDUM OF DECISION AND ORDER
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]; and the
Plaintiff's “Notice of Motion and Motion for a 7
Day Leave to File and Amend Complaint” [Doc. 26].
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. [Doc. 12].
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. [Doc. 19].
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].
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.
STANDARD OF REVIEW
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).
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.
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]. 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]. 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.
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.
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.].
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].
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 ...