Opinion
C. A. 2:21-1147-BHH-SVH
10-22-2021
Tony Lamar Jenkins, Sr., Administrator/Executor, Plaintiff, v. Bank of America, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Tony Lamar Jenkins, Sr. ("Plaintiff), proceeding pro se, filed this complaint against Bank of America ("Defendant"). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge.
I. Factual and Procedural Background
On April 22, 2021, the undersigned issued an Order and Notice identifying deficiencies in his complaint and permitting him time to file an amended complaint correcting the deficiencies. [ECF No. 8]. By separate order, the undersigned issued an order directing Plaintiff to pay the filing fee or file a fully completed Form AO 240 if he wished to proceed in forma pauperis ("IFF') without prepaying funds. [ECF No. 7]. On May 6, 2021, Plaintiff filed an amended complaint and a new motion for leave to proceed IFP. [ECF Nos. 11, 12].
In his amended complaint, Plaintiff states:
I am in fact a natural person and consumer as defined in FDCPA. The defendant has engaged in fraudulent transactions and misleading practices. The defendant has caused my phone to ring repeatedly and addressed themselves as the debt collector for an alleged debt obligation stemming from a loan. As a consumer, under FDCPA there is no definition for a loan. The defendant is alleging a debt based out of abusive practices of using the consumers credit, in trust, and selling it back in the form of loans.
[ECF No. 11 at 4]. Plaintiff also makes such statements as:
In the estate of TONY LAMAR JENKINS SENIOR, as held in interest and trust of the corporation of the United States under the credit and/or SSN ending in 7329, being used to conduct business and commerce, I Am the card holder and legal and lawful executor of all transactions concerned.Id. at 6. He alleges defendant used his “credit card information, ending in 7329, ” which he states is “a common abusive practice of selling the credit back to the creditor; the consumer and natural person, in the form of loans and mortgages.” Id. As a basis for jurisdiction, Plaintiff lists 15 U.S.C. § 1692; 15 U.S.C. §§ 1601, 1602; 28 U.S.C § 3002(15); “Title 15 Ch. 41”; HJR 192; and 18 U.S.C. § 8. Id. at 3. Plaintiff attaches a mortgage statement from defendant. [ECF at 11-1 at 10].
II. Discussion
A. Standard of Review
Plaintiff filed his complaint pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. We ler v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990). Although the court must liberally construe a pro se complaint, the United States Supreme Court has made it clear a plaintiff must do more than make conclusory statements to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 677‒78 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face, and the reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678‒79.
B. Analysis
1. Failure to Complete AO 240
Plaintiff first filed an AO 240 in which he identified receiving $3,600 in VA pension. [ECF No. 3]. He lists monthly expenses, including an entry of “Other” costing $1,850, but left blank the space to identify a property of value. Id. The undersigned directed Plaintiff to fully complete another form. In response, Plaintiff filed a new form, which is mostly blank, but states “I invoke 18 U.S.C. § 8 (obligations of the United States) and HJR 192 as right to proceed without costs or indebtedness.” [ECF No. 12].
A litigant is not required to show that he is completely destitute to qualify as an indigent within the meaning of 28 U.S.C. § 1915(a). Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 337-44 (1948). However, the “privilege to proceed without posting security for costs and fees is reserved to the many truly impoverished litigants who . . . would remain without legal remedy if such privilege were not afforded to them.” Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). In Carter v. Telectron, Inc., 452 F.Supp. 939 (S.D. Tex. 1976), the court enunciated three legal tests used to determine whether a person should proceed IFP under 28 U.S.C. § 1915:
(1) Is the litigant barred from the federal courts by the reason of his “impecunity”?
(2) Is his access to the courts blocked by the imposition of an undue hardship?
(3) Is the litigant forced to contribute his last dollar, or render himself destitute, to prosecute his claim?Id. at 943; see also Abbot v. Commissioner of Social Security, C/A No. 4:10-2253-JFA-TER, 2010 WL 4226151, at *1 (D.S.C. Sept. 17, 2010); Schoenfeld v. Donaghue, C/A No. 4:07-617-RBH, 2007 WL 1302659, at *3 (D.S.C. May 2, 2007).
In light of Plaintiff's representation that he receives $3,600 in monthly VA benefits, and his refusal to provide the court with additional information requested to determine whether he should be permitted IFP, the undersigned recommends his motions be denied. If the district judge accepts this recommendation, Plaintiff would have 14 days from the date of the order denying to submit the required filing fee.
2. Failure to Meet Pleading Requirements for Complaint
Additionally, Plaintiff has failed to meet the minimal standards for the filing of a complaint. A civil action is commenced by filing a complaint with the court. Fed.R.Civ.P. 3. Pursuant to Fed.R.Civ.P. 8(a)(2), a pleading that states a claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Plaintiff cites to 15 U.S.C. § 1692, which is more commonly known as the Fair Debt Collection Practices Act (“FDCPA”). The FDCPA only applies to debt collectors, 15 U.S.C. § 1692a(6), and Plaintiff fails to allege any facts to establish that defendant is a debt collector. Carrington v. Indy Mac Mortg. Services, C/A No. 5:12-1060-JMC, 2013 WL 530050, at *3 (D.S.C. Feb. 8, 2013) (finding mortgage servicers and lenders, acting in collection of their own debts, are not debt collectors within the definition of the FDCPA); Brown v. Wachovia Bank, C/A No. 8:10-1816-HMH-JDA, 2011 WL 5024297, at *3 (D.S.C. Sept. 30, 2011) (“[C]reditors collecting their own debts are not “debt collectors” for purposes of the FDCPA and are exempt from the FDCPA's provisions.”).
Plaintiff further cites to the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq. [ECF No. 1 at 44]. TILA “has the broad purpose of promoting the informed use of credit by assuring meaningful disclosure of credit terms to consumers.” Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 559 (1980). Accordingly, creditors are required “to provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower's rights.” Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412 (1998). As Plaintiff does not identify how the TILA disclosure requirements were violated, he fails to state a plausible TILA claim. See McCleary-Evans v. Maryland Dep't of Transp., 780 F.3d 582, 585 (4th Cir. 2015) (noting that a plaintiff must plead enough to raise a right to relief above the speculative level); Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact).
Plaintiff also cites to House Joint Resolution (HJR) 192 (1933), codified at 31 U.S.C. § 5118, which provided for the suspension of the gold standard. See Holyoke Water Co. v. American Writing Paper Co., 300 U.S. 324, 339 n.1 (1937). Other litigants have argued that this joint resolution, among other things, requires the government to discharge any personal debts. Debt relief, redemption, and breach of contract claims based on HJR-192 have been rejected by federal courts presented with these theories. See Estes v. Toyota Fin. Serv., No. 14-CV-1300, 2015 WL 222137, at *5 (E.D.N.Y. Jan. 13, 2015) (noting that complaints seeking to invalidate loans based on HJR-195 have been universally rejected by federal courts presented with this theory); Gravatt v. United States, 100 Fed.Cl. 279, 283, 286-88 (2011) (discussing, and rejecting, debt relief and redemption theories, including claims that birth certificates and social security numbers are express contracts with the United States).
Plaintiff similarly fails to provide sufficient information for the court to determine the claims he intends to bring pursuant to 8 U.S.C. § 8, as this subsection defines “the term “obligation of the United States” for purposes of federal debt collection.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Plaintiffs motions to proceed IFP be denied and that he be given 14 days to pay the filing fee. The undersigned further recommends Plaintiffs case be dismissed with prejudice for failure to state facts showing he is entitled to relief.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).