Opinion
C.A. No. 2:19-cv-03297-BHH-MGB
07-08-2020
Ronnell Demar Bey, Plaintiff, v. Erica G. Lybrand and PrimeLending A PlainsCapital Company, Defendants.
ORDER AND REPORT AND RECOMMENDATION
Plaintiff Ronnell Demar Bey ("Plaintiff"), proceeding pro se, brings this civil action against Erica G. Lybrand ("Lybrand") and PrimeLending A PlainsCapital Company ("PrimeLending") (collectively, "Defendants") alleging various transgressions and violations in relation to the foreclosure and sale of certain property. This matter is before the Court upon Defendants' respective Motions to Dismiss the Complaint (Dkt. Nos. 20, 23), and Plaintiff's Motion to Amend the Complaint (Dkt. No. 46). Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration. For the reasons set forth below, the undersigned denies Plaintiff's Motion to Amend the Complaint (Dkt. No. 46) and recommends that the Court grant Defendants' Motions to Dismiss (Dkt. Nos. 20, 23) in their entirety.
BACKGROUND
By way of background, Plaintiff executed a note on June 27, 2014, agreeing to pay the principal sum of $188,522.00, plus 4.25% interest per annum, to the order of the lender, PrimeLending, by July 1, 2044 (the "Note"). (Dkt. No. 1-1 at 25-27.) The Note was secured by a mortgage agreement entered into by Plaintiff, which covered real property located at 412 Eastover Circle, Summerville, South Carolina, 29483 (the "Mortgage"). (Id. at 15-24.) The Mortgage was assigned to PrimeLending on April 2, 2015. (Dkt. No. 21-1 at 4.)
State Foreclosure Action , Case No. 2015-CP-08-00965
On April 17, 2015, PrimeLending, by and through its counsel, Lybrand, filed a summons and complaint in the Berkley County Court of Common Pleas, South Carolina, alleging that Plaintiff breached his obligations under the Note and requesting foreclosure on the Mortgage. (See Dkt. No. 21-1.) The court issued a Judgement of Foreclosure and Sale on October 18, 2016, in which the Master in Equity found that Plaintiff was "in default of the terms of the Note and Mortgage . . . for non-payment of the amounts set forth [therein]" and liable for a final total debt of $228,591.53. (Id. at 5.)
The Court may take judicial notice of public records, such as those filed in a state foreclosure action. See, e.g., Clements v. Bank of New York Mellon, No. 6:19-CV-02161-BHH-KFM, 2019 WL 5073697, at *1 (D.S.C. Sept. 19, 2019), adopted, 2019 WL 5063443 (D.S.C. Oct. 9, 2019) (taking judicial notice of state foreclosure action filed in the Greenville County Court of Common Pleas); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("We note that '[t]he most frequent use of judicial notice . . . is in noticing the content of court records.'").
Plaintiff filed a Notice of Appeal on October 31, 2016, with the South Carolina Court of Appeals, asserting that the Master in Equity improperly granted foreclosure without sufficient evidence; violated his constitutional rights to due process and equal protection of the law; violated his civil rights by acting under the color of authority; and denied him the right to face his accuser. (Dkt. Nos. 21-2, 21-3.) The Court of Appeals affirmed the Judgement of Foreclosure and Sale on October 9, 2019, and remitted the case to the lower court on November 14, 2019. (Dkt. Nos. 21-3, 21-4.)
On December 16, 2019, PrimeLending filed an Amended Motion for Writ of Assistance with the Berkley County Court of Common Pleas, stating that Plaintiff had refused to vacate the premises despite the Judgement of Foreclosure and subsequent sale of the property on December 6, 2016. (Dkt. No. 21-5.) Plaintiff filed a response on January 20, 2020. (Dkt. No. 21-6.) The state court ultimately granted PrimeLending's motion and issued a Writ of Assistance on January 31, 2020, ordering that Plaintiff remove himself from the property. (Dkt. No. 21-7.)
Federal Court Action , Case No. 2:19-CV-03297-BHH-MGB
On November 22, 2019, approximately one week after the South Carolina Court of Appeals issued the remitter in the state foreclosure action, Plaintiff filed the instant Complaint with the United States District Court for the District of South Carolina against Defendants PrimeLending and Lybrand. (Dkt. No. 1.)
Initial Complaint (Dkt. No. 1)
Although Plaintiff used the Court's standard pro se civil complaint form in initiating this federal action, he did not raise any substantive claims in the form itself; instead, his Complaint directs the Court to a compilation of supplemental documents attached thereto. (See Dkt. Nos. 1, 1-1.) Specifically, the attachments include: a copy of the Note and the Mortgage with handwritten notes in the margins; a letter dated April 25, 2016, addressed to Plaintiff and authored by a member of PrimeLending's legal counsel, discussing certain discovery requests in the state court action; a letter dated August 25, 2016, addressed to Plaintiff and authored by Defendant Lybrand, identifying PrimeLending's anticipated witness in the state court action; and several documents reflecting a purported administrative "Consumer Enforcement Action," initiated by Plaintiff on or around October 21, 2019. (See Dkt. No. 1-1.) According to these latter documents, it appears Plaintiff sent a series of notarized demands to Defendant Lybrand, as a representative of PrimeLending, seeking $2,066,000 in damages for alleged violations of the Truth in Lending Act ("TILA") and the Fair Debt Collections Practices Act ("FDCPA") as cited verbatim below:
1. Violated 15 USC 1692c(a); Communication without prior consent, expressed permission(Id. at 11-13.) It seems that neither Lybrand nor PrimeLending responded to Plaintiff's "administrative" demands.
2. Violated 15 USC 1692c(b); Communication without prior consent, expressed permission
3. Violated 15 USC 1692d ; Harass and oppressive use of intercourse about an alleged debt.
4. Violated 15 USC 1692d(1); Attacking my reputation, accusing me of owing an alleged debt to you.
5. Violated 15 USC 1692d(2); Use of obscene or profane language on my report (saying I owe you a debt)
6. Violated 15 USC 1692e ; Using false, deceptive or misleading representations
7. Violated 15 USC 1692e(2)(A); False representation of the character and amount of the alleged debt
8. Violated 15 USC 1692e(2)(B); False representation of any service rendered or compensation
9. Violated 15 USC 1692e(8); Communicating false information
10. Violated 15 USC 1692e(9); Use/distribution of communication with authorization or approval
11. Violated 15 USC 1692e(10); False Representation (not a party to alleged debt by my consent)
12. Violated 15 USC 1692e(12); False representation/implication (innocent purchasers for value)
13. Violated 15 USC 1692f ; Unfair Practices attempting collect an alleged debt.
14. 15 USC 1692f(1); Attempting to collect a debt unauthorized by an agreement between parties.
15. 15 USC 1692g(a)(4); Certifiable Validation and Verification of alleged debt(s)
16. 15 USC 1692j (a,b); Furnishing certain deceptive forms. (You are not a party in the alleged debt)
17. IDENTITY THEFT[;] Obtaining personal identification information without prior consent and creating an account in my name without my knowledge.
18. Invasion of Individual and Family Privacy.
Although somewhat unclear from the documents provided, it appears that Plaintiff attempted to pursue this "Consumer Enforcement Action" through a notary protest process, rather than a formal administrative complaint. (See S.C. Code Ann. § 36-3-505.) Specifically, the documents indicate that Plaintiff sent Lybrand a "Consumer Enforcement Action/Consumer Enforcement Settlement Order" and an "Affidavit of Truth & Notice Title 15 U.S.C. 1692g et al" on or around October 21, 2019; a follow-up "Affidavit of Notice of Fault Opportunity To Cure & 15 U.S.C. 1692g et al" on or around November 5, 2019; and, finally, a "Notary Affidavit/Certificate of Default (Administrative Default Judgment Due to Non Response)," on or around November 12, 2019, after Lybrand did not respond to Plaintiff's previous mailings. (See Dkt. No. 1-1.) The undersigned notes, however, that while these notarizations verify that Plaintiff signed and mailed the aforementioned documents to Lybrand, they do not—in and of themselves—wield any legal power or prove that Plaintiff is legally entitled to $2,066,000 in purported damages.
Defendants' Motions to Dismiss (Dkt. Nos. 20, 23)
Defendants filed respective Motions to Dismiss Plaintiff's Complaint on February 17, 2020, based on the following grounds: (1) Plaintiff failed to properly serve Defendants as required under Rule 4 of the Federal Rules of Civil Procedure; (2) Plaintiff's Complaint fails to satisfy the pleading standards under Rule 8 of the Federal Rules of Civil Procedure; (3) Plaintiff's Complaint fails to specify Defendants' involvement in each of the alleged claims; (4) Plaintiff's Complaint does not assert a "substantial" federal claim; (5) Plaintiff's Complaint fails to establish that Defendants are considered "debt collectors" for purposes of the FDCPA; (6) any purported violations of the FDCPA or TILA are barred by the applicable statutes of limitations; (7) the issue of Plaintiff's liability under the Mortgage and Note, as well as the resulting foreclosure, was decided at the state court level and is therefore barred under the Rooker-Feldman doctrine; and (8) Defendant Lybrand is protected from suit under the doctrine of attorney immunity. (See Dkt. Nos. 21, 24.)
Plaintiff's Amended Complaint and Response to Motion to Dismiss (Dkt. No. 46)
On February 18, 2020, the undersigned issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedure and the possible consequences if he failed to adequately respond to Defendants' Motions to Dismiss. (Dkt. Nos. 26, 27.) On March 16, 2020, Chief Judge Harwell issued a Standing Order extending all deadlines in civil cases by twenty-one days. (Dkt. No. 38.) On March 24, 2020, Plaintiff filed a Motion for an Extension of Time to respond to the Motions to Dismiss. (Dkt. No. 32.) The Court granted Plaintiff's request, citing Judge Harwell's Standing Order and giving Plaintiff until April 10, 2020, to file his response(s). (Dkt. No. 35.) Plaintiff failed to respond to Defendants' Motions to Dismiss by the prescribed deadline, and the Court granted yet another extension allowing Plaintiff through April 30, 2020, to file his response(s). (Dkt. No. 41.)
On May 4, 2020, Plaintiff filed an "Amended Complaint and Response to Motion to Dismiss," alleging five general causes of action against Defendants. (Dkt. No. 46.) Specifically, Plaintiff alleges: (1) violations under the South Carolina Unfair Trade Practices Act ("SCUTPA"); (2) wrongful foreclosure; (3) violations of the FDCPA; (4) fraud; and (5) breach of contract. In addition to these five causes of action, Plaintiff's filing also offers the following "response" to Defendants' Motions to Dismiss:
Although Plaintiff alleges violations of both "the State and Federal Unfair Trade Practices Act," no such federal statute exists. Accordingly, the undersigned's analysis considers only the South Carolina Unfair Trade Practices Act in evaluating Plaintiff's proposed amended complaint.
The proposed amended complaint appears to abandon any claim for violations under the TILA.
I the Plaintiff have addressed the issues motioned by the Defendants.(Id. at 5.) Because Plaintiff's time to amend his initial Complaint as a matter of course had expired under the Federal Rules of Civil Procedure, the undersigned construed Plaintiff's filing as a motion to amend the Complaint and gave Defendants an opportunity to respond accordingly. (See Dkt. No. 47.)
1. I have named the violators who injured me.
2. I have [p]roduced valid cause of action and complaint.
3. I have also produced the attachment's showing all the dates and times of service. (see original complaint)
4. I have Expert witness to establish facts of investigation and service.
5. Defendants have injured I Bey, Ronnell Demar, Plaintiff and I have a lawful and legal right to remedy as previously filed in this suit for damages and redress.
The undersigned also found that the body of Plaintiff's filing operates as the proposed amended complaint itself. (See Dkt. No. 47.)
Defendants' Memorandum in Opposition to Plaintiff's Motion to Amend (Dkt. No. 49)
Pursuant to the Court's Order, Defendants filed a joint Memorandum in Opposition to Plaintiff's Motion to Amend on May 22, 2020, arguing that the proposed amended complaint fails to cure the deficiencies discussed in the pending Motions to Dismiss and should therefore be denied as futile. (Dkt. No. 49.) In particular, Defendants claim that Plaintiff's amended complaint fails "to provide any factual basis for his claimed causes of action" as required under the fundamental pleading standard in Rule 8 of the Federal Rules of Civil Procedure. (Id. at 2-3.) For these reasons, Defendants conclude that "this trivial action should be dismissed." (Id. at 7.)
LEGAL STANDARDS
A. Motion to Dismiss
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss an action where the complaint fails "to state a claim upon which relief can be granted." Because a Rule 12(b)(6) motion tests only the "legal sufficiency" of the complaint, the court's analysis is limited to determining whether the complaint satisfies the minimal pleading standard under Rule 8. See Doe 202a v. Cannon, No. 2:16-CV-00530-RMG, 2018 WL 317818, at *1 (D.S.C. Jan. 8, 2018). Specifically, Rule 8(a)(2) states that the complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 does not require "detailed factual allegations" to survive a motion to dismiss, it "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Indeed, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" for purposes of satisfying the Rule 8 pleading standard. See id. (referencing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Rather, the complaint must contain sufficient factual matter to state a claim to relief that is "plausible on its face," such that the allegations allow a court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." See id. (referencing Twombly, 550 U.S. at 556). Thus, while the court must take all factual allegations in the complaint as true in evaluating a Rule 12(b)(6) motion to dismiss, it "need not assume the veracity of bare legal conclusions." See Balas v. Reveley, 734 F. App'x 201, 202 (4th Cir. 2018) (referencing Burnette v. Fahey, 687 F.3d 171, 180 (4th Cir. 2012)); Twombly, 550 U.S. at 555 (explaining that the court is "not bound to accept as true a legal conclusion couched as a factual allegation").
In reviewing a Rule 12(b)(6) dismissal, the Court may "consider documents attached to the complaint, as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic." Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
B. Motion to Amend
Rule 15 of the Federal Rules of Civil Procedure allows a plaintiff, subject to certain time limitations, to amend a pleading once as a matter of course. See Fed. R. Civ. P. 15(a). Otherwise, a plaintiff may amend the complaint only with leave of the court or with the consent of the defendant. See id.; see also Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006). Rule 15(a) provides, however, that leave to amend should be "freely give[n] . . . when justice so requires." This liberal rule "gives effect to the federal policy in favor of resolving cases on their merits instead of disposing of them on technicalities." Laber, 438 F.3d at 426 (citing Conley v. Gibson, 355 U.S. 41, 48 (1957), and Ostrzenski v. Seigel, 177 F.3d 245, 252-53 (4th Cir. 1999)). The Fourth Circuit has interpreted "Rule 15(a) to provide that 'leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile.'" Laber, 438 F.3d at 426-27 (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)). C. Liberal Construction of Pro Se Pleadings
The federal court is charged with liberally construing complaints filed by pro se litigants, so as to allow for the development of a potentially meritorious claim. See, e.g., Boag v. MacDougall, 454 U.S. 364 (1982); Cruz v. Beto, 405 U.S. 319 (1972). "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. . . ." Rice v. Nat'l Sec. Council, 244 F. Supp. 2d 594, 596 (D.S.C. 2001), aff'd sub nom. Rice v. Mills, 46 F. App'x 212 (4th Cir. 2002). Notwithstanding this less stringent standard, however, a pro se complaint may be subject to dismissal if there is a clear failure in the pleading to allege facts supporting a claim cognizable in a federal district court. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (referencing Weller v. Department of Social Services, 901 F.2d 387 (4th Cir. 1990)); see also Odom v. Ozmint, 517 F. Supp. 2d 764, 768 (D.S.C. 2007) (explaining that a district court may not rewrite a petition to include claims that were never presented).
DISCUSSION
I. Defendants' Motions to Dismiss (Dkt. Nos. 20, 23)
The Fourth Circuit has made clear "that it is not the Court's role to resolve pleading deficiencies prior to dismissal." See Rivers v. Goodstein, No. 2:18-CV-2032-RMG-MGB, 2018 WL 4658487, at *1 (D.S.C. Sept. 7, 2018), adopted, 2018 WL 4656239 (D.S.C. Sept. 27, 2018) (referencing Abdul-Mumit v. Alexandria Hyundai, LLC, 896 F.3d 278, 292 (4th Cir. 2018)). Nevertheless, the Fourth Circuit has also emphasized that "a pro se plaintiff should generally be given an opportunity to file an Amended Complaint in order to correct factual pleading deficiencies" and enable adjudication on the merits. See id. (referencing Goode v. Cent. Va. Legal Aid Soc., Inc., 807 F.3d 619 (4th Cir. 2015)). The same principle applies here.
Viewing Plaintiff's allegations under the more liberal, forgiving pro se pleading standard, the undersigned finds that Plaintiff's initial Complaint would otherwise be subject to dismissal absent an opportunity to amend. As discussed above, Plaintiff's initial Complaint does not raise any substantive causes of action against Defendants, but rather, refers the Court to a collection of confusing attachments without any context or explanation. (See Dkt. Nos. 1, 1-1.) In reviewing these attachments, the only mention of a conceivable federal claim appears in the ambiguous monetary demands Plaintiff previously sent Defendant Lybrand as part of his "Consumer Enforcement Action." One of the documents, titled "Affidavit Notice of Default & 15 U.S.C. 1692g et al," makes the very general assertion that PrimeLending violated the FDCPA and TILA; other than listing the purported statutory violations, however, the attachments include no factual basis or support for these vague allegations. (Dkt. No. 1-1 at 9-12.) Moreover, it is unclear as to whether these allegations apply only to PrimeLending, or whether Defendant Lybrand is also implicated.
As Defendants correctly note, it also appears Plaintiff never properly served Lybrand or PrimeLending with a fully executed summons and complaint as required under Rule 4 of the Federal Rules of Civil Procedure. However, dismissal based solely on improper service of process is generally disfavored, as this Court prefers to construe Rule 4 in such a way that encourages adjudication on the merits. See Heaton v. Stirling, No. 2:19-CV-0540-RMG, 2020 WL 728604, at *2 (D.S.C. Feb. 13, 2020), reconsideration denied, 2020 WL 838468 (D.S.C. Feb. 18, 2020) (explaining that dismissal is not necessary where the parties "have received actual notice of the suit and have not been prejudiced by the technical defect in service"). Because Defendants have reasonable notice of the federal action against them, the undersigned declines to dismiss this case for failure to effect proper service of process and, instead, decides this matter on the legal sufficiency of Plaintiff's Complaint as discussed in greater detail below.
Such bare, unsupported conclusions are insufficient, even for a pro se party like Plaintiff, to state a claim for relief under Rule 8(a). See Garner v. Cohen, No. 2:16-CV-561-TLW-MGB, 2016 WL 9175627, at *4 (D.S.C. Sept. 1, 2016), adopted, 2017 WL 2645754 (D.S.C. June 20, 2017) (finding complaint's "vague references to [pro se] Plaintiff's rights being violated, absent any specific facts or allegations against the Defendants, [were] wholly insufficient to state any sort of plausible claim"); see also Iqbal, 556 U.S. at 678 (explaining that a complaint does not suffice under Rule 8(a) if it tenders "naked assertions" or "labels and conclusions" without "further factual enhancement"). And without further explanation, the undersigned simply cannot distill a plausible cause of action from the nonsensical documents attached to Plaintiff's initial Complaint. Thus, the Court must look to Plaintiff's proposed amended complaint to determine whether he can cure the factual pleading deficiencies in his initial Complaint and survive Defendants' Motions to Dismiss under Rule 12(b)(6).
II. Plaintiff's Proposed Amended Complaint (Dkt. No. 46)
As stated above, "leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile." See Laber, 438 F.3d at 426-27 (quoting Johnson, 785 F.2d at 509). Generally, an amendment is "futile" if it "would fail to withstand a motion to dismiss." Woods v. Boeing Co., 841 F. Supp. 2d 925, 930 (D.S.C. 2012). Accordingly, in order to determine futility, the court analyzes an amended complaint under Rule 12(b)(6). See Hall v. Greystar Mgmt. Servs., L.P., 637 F. App'x 93, 97 (4th Cir. 2016) ("An amendment is futile if the amended claim would fail to survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)."); Martin v. Boeing Co., No. 2:16-CV-02797-DCN, 2016 WL 7239914, at *2 (D.S.C. Dec. 15, 2016) (noting that the discussion of a motion to dismiss and subsequent motion to amend "dovetails substantially" under Rule 12(b)(6)).
In this case, the undersigned finds that Plaintiff's proposed amended complaint more clearly defines the universe of claims alleged and specifies the Defendants against whom each cause of action is raised. To reiterate, Plaintiff's amended complaint alleges: (1) violations under the SCUTPA against both Defendants; (2) wrongful foreclosure against PrimeLending; (3) violations of the FDCPA against both Defendants; (4) fraud against both Defendants; and (5) breach of contract against both Defendants. (See Dkt. No. 46.) Notwithstanding these proposed amendments, however, the undersigned agrees with Defendants that Plaintiff's amended complaint still fails to state a valid claim upon which relief may be granted, such that the opportunity to amend would be futile. Thus, for the reasons set forth below, the undersigned finds that Plaintiff's Motion to Amend the Complaint (Dkt. No. 46) should be denied and recommends that Defendants' Motions to Dismiss (Dkt. Nos. 20, 23) be granted.
A. Plaintiff's Amended Complaint Fails to Satisfy Rule 8 Pleading Requirements
At the outset, the undersigned finds that Plaintiff cannot cure the deficiencies in his initial Complaint through further amendment because his proposed amended complaint is comprised of conclusory, disjointed legal arguments that fail to state a plausible claim to relief under Rule 8. The undersigned addresses each of the five claims in turn.
Although Plaintiff's FDCPA claim appears to be the only federal cause of action alleged in the proposed amended complaint, the undersigned addresses each claim in an abundance of caution.
SCUTPA Violations
The SCUTPA prohibits "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." S.C. Code Ann. § 39-5-20. To adequately plead a claim for violation of the SCUTPA, the plaintiff must show "(1) that the defendant engaged in an unfair or deceptive act in the conduct of trade or commerce; (2) the unfair or deceptive act affected public interest; and (3) the plaintiff suffered monetary or property loss as a result of the defendant's unfair or deceptive act." See Davis v. Citimortgage, Inc., No. 0:15-CV-04643-MGL, 2016 WL 4040084, at *5 (D.S.C. July 28, 2016) (referencing Health Promotion Specialists, LLC v. S.C. Bd. of Dentistry, 403 S.C. 623, 638, 743 S.E.2d 808, 816 (2013)).
In the instant case, Plaintiff fails to state a plausible claim under the SCUTPA because the amended complaint does not allege that Defendants' actions affected a public interest. Rather, Plaintiff simply states that Defendants violated the SCUTPA by "engag[ing] in a pattern of reneging upon promises to modify or otherwise restructure loans, including, but [not] limited to, the loan subject of this case." (Dkt. No. 46 at 1.) Such bare allegations—reflecting what appears to be no more than a personal loss by Plaintiff—are insufficient to satisfy the aforementioned pleading requirements under S.C. Code § 39-5-20. See, e.g., Bartley v. Wells Fargo Bank, NA, No. 3:14-CV-3814-CMC, 2015 WL 5158708, at *9 (D.S.C. Sept. 2, 2015) (dismissing SCUTPA claim because foreclosure of plaintiff's property reflected a private wrong, rather than a public interest); Davis, 2016 WL 4040084, at *5 (dismissing SCUTPA claim where plaintiff's complaint was individual and "private in nature," such that he failed to allege an impact on public interest); see also White v. White, 886 F.2d 721, 723 (4th Cir. 1989) (dismissing pro se complaint because it "failed to contain any factual allegations tending to support his bare assertion"). Plaintiff's SCUTPA claim would therefore fail to survive Defendants' Rule 12(b)(6) motions despite the proposed amendments.
Wrongful Foreclosure
Although Plaintiff's amended complaint alleges "wrongful foreclosure" as the second cause of action, it appears this claim also falls under the purview of the SCUTPA. Specifically, Plaintiff's amended complaint states that he "attempted to pay the delinquent dues to [PrimeLending] but [his] attempts were rejected" in violation of S.C. Code § 39-5-20. (See Dkt. No. 46 at 2, referencing "unfair methods of competition and unfair or deceptive acts or practices.") Plaintiff further asserts that PrimeLending owed him a "duty of utmost care, honesty, loyalty and full disclosure of all material facts." (Id.) For the same reasons stated above, these ambiguous allegations similarly fail to establish that Defendants' actions affected a public interest and are therefore insufficient to state a plausible claim for relief under the SCUTPA. See Bartley, 2015 WL 5158708, at *9-10.
Violations of the FDCPA
"Congress 'enacted the FDCPA with the goal of eliminating abusive, deceptive, and unfair debt collection practices.'" See Thomas v. Fairway Indep. Mortg., No. 4:19-CV-2799-SAL-TER, 2020 WL 2812743, at *2 (D.S.C. May 5, 2020), adopted sub nom., 2020 WL 2793733 (D.S.C. May 29, 2020) (citing Clark v. Absolute Collection Serv., Inc., 741 F.3d 487, 490 (4th Cir. 2014)); see also 15 U.S.C. § 1692. To establish a claim under the FDCPA, the plaintiff must prove that (1) he has been the object of collection activity arising from consumer debt; (2) the defendant is a debt collector as defined by the FDCPA; and (3) the defendant has engaged in an act or omission prohibited by the FDCPA. See id. (referencing Boosahda v. Providence Dane LLC, 462 F. App'x 331, 333 n.3 (4th Cir. 2012)).
Here, Plaintiff's amended complaint alleges that Defendants violated his rights under the FDCPA by "attempting to extort and rob [him] using deceptive, misleading and abusive practices." (See Dkt. No. 46 at 2-3, asserting that such conduct constitutes "criminal activity.") Plaintiff then goes on to list those same eighteen statutory violations cited in the initial Complaint. (See id. at 3-4.) (Supra p. 4.) The undersigned finds that Plaintiff's FDCPA claim fails for several reasons.
First, neither PrimeLending nor Lybrand constitute a "debt collector" for purposes of the FDCPA. The FDCPA defines "debt collector" as "(1) a person whose principal purpose is to collect debts; (2) a person who regularly collects debts owed to another; or (3) a person who collects its own debts, using a name other than its own as if it were a debt collector." See Richardson v. Shapiro & Brown, LLP, 751 F. App'x 346, 349 (4th Cir. 2018) (citing Henson v. Santander Consumer USA, Inc., 817 F.3d 131, 136 (4th Cir. 2016)); see also 15 U.S.C. § 1692a(6). As Defendants correctly note, "debt collectors" generally do not include "creditors, mortgagors, mortgage servicing companies, trustees exercising their fiduciary duties, or assignees of debt so long as the debt was not in default at the time it was assigned." Quinlin v. CarringtonMortgage Servs., LLC, No. 0:13-CV-1502-MGL, 2014 WL 3495838, at *8 (D.S.C. July 14, 2014). Accordingly, "creditors collecting their own debts are not 'debt collectors' for purposes of the FDCPA and are exempt from the FDCPA's provisions." Brown v. Wachovia Bank, No. 8:10-CV-1816-HMH-JDA, 2011 WL 5024297, at *3 (D.S.C. Sept. 30, 2011).
Here, PrimeLending operated as a creditor seeking to collect on its own debts in foreclosing on Plaintiff's property. See Barber v. Rushmore Loan Mgmt. Servs., LLC, No. 3:17-CV-00982-TLW-SVH, 2018 WL 4957409, at *4 (D.S.C. Feb. 21, 2018), adopted, 2018 WL 4489290 (D.S.C. Sept. 19, 2018), aff'd, 769 F. App'x 106 (4th Cir. 2019) (explaining that owner and holder of mortgage and note acted as a creditor in "foreclosing its own debts"). Thus, PrimeLending does not qualify as a "debt collector" for purposes of Plaintiff's FDCPA claim. See, e.g., Bartley, 2015 WL 5158708, at *8 (dismissing FDCPA claim against owner and holder of note and mortgage because FDCPA explicitly excludes creditors collecting their own debts from the definition of "debt collector"); Barber, 2018 WL 4957409, at *4 (same).
As a legal representative of PrimeLending, Lybrand is most likely exempt from the FDCPA as well. See Barber, 2018 WL 4957409, at *4 (noting that "debt collector" does not include an "officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor" under 15 U.S.C. § 1692(a)(6)).
However, even if Defendants did qualify as debt collectors, Plaintiff's bare, conclusory allegations once again fail to satisfy the pleading standard under Rule 8 and therefore preclude this Court from construing a plausible cause of action under the FDCPA. See Richardson, 751 F. App'x at 349 (finding plaintiff's allegation that defendants proceeded with foreclosure proceedings despite failing to adequately verify debt "too conclusory to satisfy the pleading standard" required to raise a claim under the FDCPA); see also Iqbal, 556 U.S. at 678 (noting that Rule 8 "demands more than an unadorned, the defendant-unlawfully-harmed-me accusation"). Thus, Plaintiff's FDCPA claim would also fail to survive Defendants' Motions to Dismiss despite the proposed amendments.
Defendants contend that Plaintiff's FDCPA claim is also barred by the one-year statute of limitations. (See Dkt. Nos. 21, 24, citing 15 U.S.C. § 1692k(d), which states that an action under the FDCPA must be brought within one year of the violation.) Specifically, Defendants argue that "Bey filed this [federal] suit on November 11, 2019, over five years after signing the Note and Mortgage and over three years after receiving the letters from PrimeLending's counsel [as attached to the initial Complaint]. Assuming Bey's FDCPA claims arise from these documents, those claims are time-barred." (Dkt. Nos. 21, 24.) Although the undersigned agrees with the logic of this argument, Plaintiff's allegations are simply too ambiguous and conclusory to make such a determination based on the pleadings and, thus, the undersigned declines to address the statute of limitations at this time.
Fraud
To establish fraud under South Carolina law, a plaintiff must show the following elements: "(1) a representation; (2) its falsity; (3) its materiality; (4) knowledge of its falsity or a reckless disregard for its truth or falsity; (5) intent that the plaintiff act upon the representation; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on its truth; (8) the hearer's right to rely thereon; and (9) the hearer's consequent and proximate injury." See Williams v. Quest Diagnostics, Inc., 353 F. Supp. 3d 432, 446 (D.S.C. 2018) (referencing Hendricks v. Hicks, 374 S.C. 616, 620, 649 S.E.2d 151, 152-53 (S.C. App. 2007)). Claims of fraud are subject to a heightened pleading standard under Rule 9 of the Federal Rules of Civil Procedure, which directs the plaintiff to "state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b) (emphasis added). Indeed, "averments of fraud must state the precise time and place of the fraud and the acts alleged to be fraudulent; these allegations should be substantiated with particulars." Lemacks v. Consol. Freightways Corp. of Delaware, No. 1:95-CV-02117-CES, 1997 WL 998323, at *3 (D.S.C. July 16, 1997).
Here, Plaintiff's amended complaint alleges that Defendants "mispresented the amount of the debt owed at the time of acceleration without proof that there was a default in the debt and committed fraud by wrongful [f]oreclosure using unfair practices to take [his] property over an alleged debt." (Dkt. No. 46 at 4.) Plaintiff further claims that he "tried to pay the amount represented to be owed, but that [PrimeLending] foreclosed anyway because they refused [his] money and told [him] he had to wait 90 days but in fact that greater amount was not owed." (Id.) Plaintiff asserts that he had a "state and federal right to consumer negotiation" and that he was "intentionally tricked," in that Defendants "used fraudulent evidence, [and] redacted discovery to cover for falsifying a debt." (Id. at 4-5.) Even with a more liberal construction, the undersigned finds these allegations too vague to satisfy the level of specificity required under Rule 9.
At the outset, the very content of the purported misrepresentations is unclear, as Plaintiff alleges that Defendants—in addition to overstating the amount owed on the Note and Mortgage—relied on some sort of "fraudulent evidence" to hide the falsified debt, without providing any further explanation as to the actual misrepresentations contained in this "evidence." Plaintiff's amended complaint also fails to specify the time and place of the alleged misrepresentation(s); whether the speaker of the misrepresentation(s) had knowledge of its falsity; and whether Plaintiff's reliance on the misrepresentation(s) was reasonable. See Bartley, 2015 WL 5158708, at *10 (referencing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 1297 (2d ed. 1990)) (explaining that the plaintiff must plead with particularity "the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby"). Moreover, the amended complaint improperly groups Defendants together "without specifying which [D]efendant committed which wrong," making it almost impossible for Defendants to ascertain the claims raised against them. See id. (explaining that the complaint must "set forth with particularity each defendant's culpable conduct"); see also Juntti v. Prudential-Bache Securities, Inc., 993 F.2d 228, 1993 WL 138523, at *2 (4th Cir. 1993) ("Further indicative of the insufficiently particular character of the complaint is its impermissible aggregation of defendants without specifically alleging which defendant was responsible for which act.").
As evidenced by the ambiguities above, Plaintiff's fraud claim simply does not meet the level of specificity required under Rule 9. See, e.g., Jackson v. Smith & Downey, PA, No. 2:17-CV-3299-PMD-JDA, 2018 WL 4560534, at *4 (D.S.C. June 18, 2018), adopted sub nom., 2018 WL 3722288 (D.S.C. Aug. 6, 2018) (dismissing fraud claim where complaint "lumped all Defendants together" and did not allege with specificity what representations were false or why plaintiff's reliance on any misrepresentation was reasonable); Thomas Daniels Agency, Inc. v. Nationwide Ins. Co. of Am., No. 2:14-CV-04928-RMG, 2015 WL 12805688, at *3-4 (D.S.C. Mar. 17, 2015) (finding that fraud claim lacked requisite particularity because complaint provided no indication of when the alleged misrepresentation occurred and failed to specify each defendant's participation in the fraud). Thus, the undersigned finds that Plaintiff's proposed fraud allegations would be futile if given the opportunity to amend.
Breach of Contract
"To recover for breach of contract, the plaintiff must prove: (1) a binding contract; (2) a breach of contract; and (3) damages proximately resulting from the breach." See Morris v. Ocwen Loan Servicing, LLC, No. 0:16-CV-01772-JMC, 2017 WL 1035944, at *6 (D.S.C. Mar. 17, 2017) (referencing Hennes v. Shaw, 397 S.C. 391, 399, 725 S.E.2d 501, 506 (S.C. Ct. App. 2012)). In this case, the undersigned finds Plaintiff's allegations so unintelligible and disjointed that no reasonable person could possibly draw a valid breach-of-contract claim from his amended complaint.
Specifically, Plaintiff alleges that:
[Defendants] rejected my right to review a full Discovery of the alleged Contract without showing an undue burden on the Defendants and the Court the account had been turned over to "collections" (presumably meaning ABS or Alessi & Koenig). (See First Am. Compl. § 96). As noted, supra, NRS 116A.640 specifically prohibits a community manager such as CMC from rejecting a tender of an assessment simply because it is late, and it prohibits the collections of fees or other charges from a client not specified in the management agreement. A breach of contract claim cannot stand on these bases, however. The first issue—wrongful rejection of the tender of a delinquent amount—is a matter of wrongful foreclosure. The second issue—a community manager's charging of fees not specified in a management agreement—concerns charges by a community manager to an HOA ("a client") not authorized in the management agreement between them, as opposed to charges by a community manager (on behalf of an HOA) to a homeowner not authorized in the CC&R. See Nev. Rev. Stat. § 116A.640(10).(Dkt. No. 46 at 5.) The undersigned simply cannot make sense of such vague, incomprehensible, and seemingly irrelevant allegations. Among other things, Plaintiff's references to the Nevada Code and a "management agreement" appear completely out of context. Consequently, the undersigned finds that Plaintiff's proposed breach-of-contract claim, like those four claims before it, also fails to state a plausible claim to relief under Rule 8. See Pearson v. Select Portfolio Servicing., Inc., No. 8:17-CV-01624-PX, 2018 WL 1035768, at *2 (D. Md. Feb. 23, 2018) (explaining that although pro se plaintiffs are generally "given more leeway," the court is not obligated "to ferret through a complaint that is so confused, ambiguous, vague or otherwise unintelligible that its true substance, if any, is well disguised") (internal citations omitted).
It is clear from the discussion above that—despite taking a second bite at the apple—Plaintiff's proposed amended complaint fails to plead a coherent, plausible claim to relief under Rule 8. And because Plaintiff's amended complaint cannot cure the deficiencies in the initial Complaint, the undersigned finds that Plaintiff's Motion to Amend (Dkt. No. 46) must be denied as futile and recommends that the Court grant Defendants' Motions to Dismiss (Dkt. Nos. 20, 23) for failure to state a claim. See, e.g., Bond v. United States, 742 F. App'x 735, 737-38 (4th Cir. 2018), cert. denied, 139 S. Ct. 1619 (2019) (affirming denial of plaintiff's request to amend complaint as futile because "bare assertions" in the proposed amended complaint were insufficient to plead a claim to relief); Martin, 2016 WL 7239914, at *2-6 (dismissing complaint after denying motion to amend where both the initial and amended complaints failed to plead sufficient factual allegations in support of the alleged causes of action); see also Iqbal, 556 U.S. at 678-79 ("Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.")
B. Plaintiff's Amended Claims Are Barred by the Rooker-Feldman Doctrine
Although the aforementioned pleading deficiencies are more than sufficient to deny Plaintiff's proposed amendments under Rule 15, the undersigned notes that the Rooker-Feldman doctrine further confirms the futility of Plaintiff's amended complaint. Under the Rooker-Feldman doctrine, a "party losing in state court is barred from seeking what in substance would be appellate review of the state judgment in a United States district court." Am. Reliable Insurc. Co. v. Stillwell, 336 F.3d 311, 316 (4th Cir. 2003) (citing Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994)); Plyler v. Moore, 129 F.3d 728, 731 (4th Cir. 1997), cert. denied, 524 U.S. 945 (1998). This general rule "extends not only to issues actually decided by a state court but also to those that are 'inextricably intertwined with questions ruled upon by a state court.'" See Boyd v. Simmons, No. 6:18-CV-576-BHH-JDA, 2018 WL 4999804, at *2 (D.S.C. Mar. 14, 2018), adopted, 2018 WL 4356579 (D.S.C. Sept. 13, 2018) (referencing Plyler, 129 F.3d at 731).
This doctrine derives from two U.S. Supreme Court cases, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983).
The Rooker-Feldman doctrine "operates principally to preserve the structure of appeals from state courts to the United States Supreme Court under 28 U.S.C. § 1257(a) and to bar any proceeding that would functionally amount to a lateral appeal to a United States district court." Moore v. City of Asheville, N.C., 396 F.3d 385, 392 n.2 (4th Cir. 2005), cert. denied, 546 U.S. 819 (2005). The doctrine prevents a federal court from asserting jurisdiction in cases brought by state court litigants dissatisfied with state court judgments and "inviting district court review and rejection of those judgments." Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005); see also Stanfield v. Charleston Cty. Court, No. 2:15-CV-0756-PMD-MGB, 2015 WL 4929186, *5 (D.S.C. Aug. 18, 2015) ("Despite Plaintiff's strenuous attempts to distinguish his cause of action as a violation of constitutional law as opposed to an attack on a state court judgment, Plaintiff has no claim independent of the adverse state-court decisions.").
Despite the unintelligible, vague nature of Plaintiff's amended complaint, the undersigned agrees with Defendants that many of Plaintiff's allegations appear to derive from his frustrations relating to the Judgement of Foreclosure and Sale of property ordered by the Master in Equity in the underlying state court action. For example, Plaintiff's amended complaint suggests that PrimeLending refused Plaintiff's payments and misrepresented the amount left owing on the loan; such allegations inevitably challenge the state court's determinations regarding Plaintiff's default under the Note and Mortgage. It is well-established, however, that "claims requesting federal district court review of a state court's eviction and foreclosure proceedings," such as those alleged by Plaintiff, are barred under the Rooker-Feldman doctrine. See, e.g., Boyd, 2018 WL 4999804, at *3 (dismissing plaintiff's claims under Rooker-Feldman where complaint challenged defendants' ability to secure a lien and judgment against plaintiff's property in state foreclosure proceeding); Cross v. Deutsche Bank Tr. Co. Americas, No. 3:11-CV-1010-CMC-PJG, 2011 WL 1624958, at *2 (D.S.C. Apr. 28, 2011) (dismissing claims that were "clearly attempting to attack the validity of the state court foreclosure proceedings, particularly the judgment of foreclosure"). Accordingly, even if Plaintiff's amended complaint could satisfy the pleading standard under Rule 8, the undersigned finds that the proposed amendments are still futile under the Rooker-Feldman doctrine.
C. Attorney Immunity
Finally, the undersigned notes that Plaintiff's proposed amended complaint raises at least four causes of action against Defendant Lybrand, which presumably stem from her representation of PrimeLending in the state foreclosure proceedings. As a general rule, "an attorney is immune from liability to third persons arising from the performance of [her] professional activities as an attorney on behalf of and with the knowledge of [her] client." Milford v. Middleton, No. 2:16-CV- 2441-RMG-MGB, 2017 WL 9286992, at *5 (D.S.C. Dec. 5, 2017), adopted, 2018 WL 348059 (D.S.C. Jan. 10, 2018). Further, an attorney owes no duty to a non-client unless she "breaches some independent duty to a third person or acts in [her] own personal interest, outside the scope of [her] representation of the client." Stiles v. Onorato, 318 S.C. 297, 300, 457 S.E.2d 601, 602 (1995).
As Defendants correctly note, Plaintiff has not demonstrated that Defendant Lybrand owed him any sort of independent duty as a non-client, or that she acted in her own personal interest and outside the scope of her representation of PrimeLending. Accordingly, notwithstanding the deficiencies discussed above, Plaintiff's common law claims against Defendant Lybrand likely fail under the general rule of attorney immunity. See, e.g., Hunt v. Mortg. Elec. Registration, 522 F. Supp. 2d 749, 758-59 (D.S.C. 2007) (dismissing claims against law firm where plaintiff failed to allege any duty owed or violated by the firm in relation to the foreclosure of plaintiff's property); Bartley, 2015 WL 5158708, at *5-6 (same).
CONCLUSION
For the reasons stated above, the undersigned DENIES Plaintiff's Motion to Amend the Complaint (Dkt. No. 46) as futile and RECOMMENDS that Defendants' Motions to Dismiss (Dkt. Nos. 20, 23) be granted with prejudice.
IT IS SO ORDERED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE July 8, 2020
Charleston, South Carolina
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
Post Office Box 835
Charleston, South Carolina 29402
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).