Opinion
C. A. 6:22-cv-03916-DCC-KFM
01-27-2023
Derrick Mahoney, Plaintiff, v. Nationstar Mortgage, LLC; Mortgage Electronic Registration Systems, Inc.; Finkel Law Firm; Thomas Shook; Defendants.
ORDER AND REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge.
This is a civil action filed by a pro se non-prisoner plaintiff. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court. The plaintiff's complaint was entered on the docket on November 7, 2022 (doc. 1). By orders filed December 1,2022, and December 20, 2022, the plaintiff was given a specific time frame in which to bring his case into proper form for judicial screening (docs. 7; 11). The plaintiff complied with the court's orders, and the case is now in proper form for judicial screening. However, upon review of the plaintiff's complaint, the undersigned recommends it be dismissed.
LITIGATION HISTORY AND ALLEGATIONS
The court takes judicial notice that on June 29, 2018, the plaintiff purchased property located at 725 Streamside Drive, Piedmont, South Carolina 29673 (“the Subject Property”). See Title to Real Estate, https://viewer.greenvillecounty.org/countyweb/login Display.action?countyname=Greenville (click Login as Guest, Accept, Search Public Records, Book - Page, Choose Book Type “DE” and enter Book 2542 and Page 456, Click Search, Click on Instrument Number 2018049135) (last visited January 26, 2023). On June 29, 2022, Nationstar Mortgage, LLC (“Nationstar”) filed a foreclosure proceeding for the Subject Property in the Greenville County Court of Common Pleas. Greenville County Public Index, https://publicindex.sccourts.org/ Greenville/PublicIndex/PISearch.aspx (enter the plaintiff's name and 2022CP2303421) (last visited January 26, 2023) (“the Foreclosure Action”). In the Foreclosure Action, on July 22, 2022, the plaintiff filed an answer, asserting verbatim:
1) Loan is disputed for Truth in Lending violation, Mr. Cooper was asked to provide a copy of the right of [rescission] they covered with me with my signature on it and it has not been done to date.
2) I request that the case be dismissed for failing Seal and Teste of Process which states: All writs and process issuing from a court of the United States shall be under the seal of the court and signed by the clerk thereof.
Greenville County Public Index (enter the plaintiff's name and 2022CP2303421) (last visited January 26, 2023). The plaintiff, dissatisfied with foreclosure proceedings, filed a notice of removal in the Foreclosure Action on November 7, 2022. Id.; see Nationstar Mort., LLC v. Mahoney, et al., C/A No. 6:22-cv-03915-DCC-KFM (D.S.C.). The Foreclosure Action, as removed, remains pending at this time. Nationstar Mort., LLC, C/A No. 6:22-cv-03915-DCC-KFM. Along with the notice of removal of the Foreclosure Action, the plaintiff on the same date filed his complaint in the instant action, seeking money damages and equitable relief with respect to the Foreclosure Action filed by the defendants regarding the Subject Property (doc. 1).
In the instant action, the plaintiff alleges that the defendants have wrongfully filed the Foreclosure Action because the defendants lacked standing to bring the Foreclosure Action based upon an assignment of right filed by the defendants after instituting the Foreclosure Action (id. at 3-5). The plaintiff further contends that the loan on the Subject Property violates the Truth in Lending Act, 15 U.S.C. § 1601, et seq. (“TILA”), because the defendants did not disclose all of the terms of the loan and the loan acceleration clause charges an interest rate in excess of the rate allowed under South Carolina law (id. at 5-6). The plaintiff also asserts that the defendants did not provide the plaintiff a demand letter or right to cure notice prior to filing the Foreclosure Action (id. at 5-6). The plaintiff further contends that the defendants violated Regulation Z (id. at 6). The plaintiff also alleges that the defendants have violated the Uniform Commercial Code in their collections actions against the plaintiff (id. at 6-7). The plaintiff further alleges that he is protected under the Protecting Tenants Foreclosure Act (id. at 7). For relief, the plaintiff seeks rescission of the Foreclosure Action, an order preventing the defendants from attempting to ever foreclose on the Subject Property, an order declaring the plaintiff has the right to retain ownership of the Subject Property, and money damages (id. at 8).
After filing this action, the plaintiff filed a quit claim deed regarding the Subject Property in the Greenville County Register of Deeds on November 14, 2022. See Title to Real Estate (click Login as Guest, Accept, Search Public Records, Book - Page, Choose Book Type “DE” and enter Book 2673 and Page 2646, Click Search, Click on Instrument Number 2022085352) (last visited January 26, 2023). The deed purported to transfer ownership of the Subject Property to Valesia Mahoney. Id.
On January 10, 2023, the plaintiff filed a motion seeking to amend his complaint to add Valesia Mahoney as a party and additional claims against the defendants relating to the wrongful Foreclosure Action (doc. 13). The proposed amended complaint alleges that the wrongful foreclosure constituted a breach of the contract created when the plaintiff signed the deed for the property, that the Foreclosure Action was illegally filed, as well as that the Foreclosure Action should be dismissed and ownership of the property remain with the plaintiff and Valesia (id. at 2-7). For relief in the proposed amended complaint, the plaintiff and Valesia seek money damages and to have the foreclosure rescinded (id. at 7).
STANDARD OF REVIEW
As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings. This court possesses the inherent authority to review the pro se complaint to ensure that subject matter jurisdiction exists and that a case is not frivolous, even if the pleading is not subject to the pre-screening provisions of 28 U.S.C. § 1915. See Mallard v. U.S. Dist. Ct., 490 U.S. 296, 307-08 (1989) (“Section 1915(d) . . . authorizes courts to dismiss a ‘frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision.”); Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir. 2012) (unpublished) (finding that “frivolous complaints are subject to dismissal pursuant to the inherent authority of the court, even when the filing fee has been paid . . . [and] because a court lacks subject matter jurisdiction over an obviously frivolous complaint, dismissal prior to service of process is permitted.” (citations omitted)); see also Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (finding that “district courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee”). Accordingly, “[t]he present Complaint is subject to review pursuant to the inherent authority of this Court to ensure that subject matter jurisdiction exists and that the case is not frivolous.” Trawick v. Med. Univ. of S.C., C/A No. 2:16-cv-730-DCN-MGB, 2016 WL 8650132, at *4 (D.S.C. June 28, 2016), R&R adopted by 2016 WL 8650131 (D.S.C. July 7, 2016), aff'd 671 Fed.Appx. 85 (4th Cir. 2016) (mem).
The plaintiff paid the full filing fee; thus, this case is not subject to the pre-screening provisions of 28 U.S.C. § 1915. Additionally, the plaintiff is not a prisoner; thus, the case is not subject to the screening provided for in 28 U.S.C. § 1915A.
DISCUSSION
The plaintiff asserts that this court has jurisdiction over this action based upon federal question and diversity jurisdiction (doc. 1). As set forth in more detail below, this matter is subject to dismissal because it is duplicative of the Foreclosure Action.
This action is duplicative of the Foreclosure Action
Efficient judicial administration generally requires the federal courts to avoid duplicative federal litigation. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). Generally, a case pending in federal court “may be dismissed for reasons of wise judicial administration whenever it is duplicative of a parallel action already pending in another federal court.” Nexsen Pruet, LLC v. Westport Ins. Corp., C/A No. 3:10-cv-00895-JFA, 2010 WL 3169378, at *2 (D.S.C. Aug. 5, 2010) (internal quotation marks omitted) (quoting Motley Rice, LLC v. Baldwin & Baldwin, LLP, 518 F.Supp.2d 688, 697 (D.S.C. 2007)). Suits are considered parallel if “substantially the same parties litigate substantially the same issues in different forums.” New Beckley Mining Corp. v. Int'l Union, United Mine Workers of Am., 946 F.2d 1072, 1073 (4th Cir. 1991) (citing LaDuke v. Burlington N. R.R., 879 F.2d 1556, 1559 (7th Cir. 1989)). Although some of the parties in the instant action are not parties in the Foreclosure Action, the instant matter seeks relief relating to the Subject Property at question in the Foreclosure Action and requests that the court order certain things be done in the Foreclosure Action. Compare doc. 1 with Nationstar Mort., LLC, C/A No. 6:22-cv-03915-DCC-KFM. Indeed, here, the plaintiff's requested relief involves, in essence, having the Foreclosure Action dismissed and declaring as void any interest in the Subject Property held by the defendants (that the defendants seek to enforce in the Foreclosure Action). As such, the instant matter and the Foreclosure Action are parallel suits.
Because the instant matter and the Foreclosure Action are parallel suits, the newer of the two cases - the instant action - should be dismissed. Here, although the plaintiff filed the instant action on the same date he removed the Foreclosure Action to this court, the Foreclosure Action has been pending since June 29, 2022. Compare doc. 1 with Greenville County Public Index (enter the plaintiff's name and 2022CP2303421) (last visited January 26, 2023). As such, in light of the foregoing, the interests of justice weigh heavily in favor of dismissing this action in light of the Foreclosure Action, which remains pending at this time. See Van Dusen v. Barrack, 376 U.S. 612, 615 (1964) (internal quotation marks and citation omitted) (dismissal of duplicative action necessary to “prevent the waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense.”).
Motion to Amend
As noted above, on January 10, 2023, the plaintiff filed a motion seeking to amend his complaint to add a plaintiff and amend the claims brought in this action (doc. 13). Pertinent to the instant matter, Federal Rule of Civil Procedure 15 states, “[A] party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Amendments under Rule 15 are generally freely given unless doing so would be prejudicial to the opposing party, have been made in bad faith, or would be futile. Jones v. Lexington Cnty. Det. Ctr., 586 F.Supp.2d 444, 450 (D.S.C. 2008) (denying motion to amend as futile); see United States v. Kellogg Brown & Root Inc., 525 F.3d 370, 376 (4th Cir. 2008) (noting that if a proposed amended complaint fails to state a claim under Rule 12(b)(6), amendment would be futile, and denial of a motion to amend is appropriate). Here, as outlined above, the claims in the plaintiff's proposed amended complaint - as those in the original complaint - assert claims duplicative of the Foreclosure Action and seek damages and equitable relief relating to the alleged wrongful foreclosure of the Subject Property by the defendants. As such, the plaintiff's motion (doc. 13) is denied as futile because the proposed amended complaint is likewise duplicative of the Foreclosure Action.
CONCLUSION AND RECOMMENDATION
Now, therefore, based upon the foregoing, IT IS HEREBY ORDERED that the plaintiff's motion to amend the complaint (doc. 13) is denied; FURTHERMORE, IT IS HEREBY RECOMMENDED that the district court dismiss this action without prejudice and without issuance and service of process because this matter is duplicative of the pending Foreclosure Action. See Britt v. DeJoy, 49 F.4th 790 (4th Cir. 2022). The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
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 250 East North Street, Room 2300 Greenville, South Carolina 29601
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).