Opinion
CIVIL ACTION NO. 02-CV-7566
September 30, 2003
MEMORANDUM AND ORDER
Plaintiffs Earnest Luqman and Dorothy Trotter ("Luqman") bring this action, pro se, against Defendants Interbay Funding, L.L.C. and First Union National Bank ("Interbay") alleging numerous federal and state law violations. Now before the Court is Interbay's Motion To Dismiss Pursuant to Fed.R.Civ.P. 12(c) (docket no. 14). For the reasons set forth below, the Motion will be granted.
FACTUAL BACKGROUND
Accepting all well — pleaded allegations as true, the relevant facts are as follows. Luqman executed a mortgage on real estate at 6122 Germantown Ave, Philadelphia, Pennsylvania, with Interbay on April 30, 2001. Luqman claims that the mortgage violated a number of federal statutes, including 18 U.S.C. § 1962 and 1964, 42 U.S.C. § 1983, 15 U.S.C. § 1601, 15 U.S.C. § 1692, and 15 U.S.C. § 1679. He also attempts to state a claim under House Joint Resolution 192 of 1933 ("H.J.R. 192") and to move under Fed.R.Civ.P. 12(b) to dismiss state foreclosure proceedings brought by Interbay. Finally, Luqman makes a number of state law claims, including the claim that Interbay committed fraud by using his "signature for misleading purposes." Plaintiffs' Complaint at ¶ 1.
The mortgage is signed by Dorothy Trotter and Ernest Trotter, a/k/a Ernest Usamah Luqman.
The Complaint cites 15 U.S.C. § 1962 rather than 15 U.S.C. § 1692. Because 15 U.S.C. § 1962 has been repealed, the Court will assume that this was a typographical error.
Luqman filed the Complaint in this case on September 27, 2002. Interbay then commenced a foreclosure action against Luqman in the Pennsylvania Court of Common Pleas on October 2, 2002 (September Term 2002, No. 004640). Default judgment was entered against Luqman on January 2, 2003, and a Writ of Execution for a sheriffs sale was issued on February 13, 2003. Despite the fact that default judgment had been entered, Luqman filed a Notice of Removal on April 14, 2003.
It is unclear from the state court record whether the sheriffs sale ever took place. On July 11, 2003, however, Interbay filed with the Court of Common Pleas a Praecipe to Settle, Discontinue and End the foreclosure action.
The record does not reveal why Interbay chose to file its praecipe in state court after Luqman had filed the Notice of Removal.
LEGAL STANDAND
A motion under Rule 12(c) is considered under the same standard as a motion to dismiss under Rule 12(b)(6). Regalbuto v. City of Philadelphia, 937 F. Supp. 374, 376 (E.D. Pa. 1995). When deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court must "take the well — pleaded factual allegations in the complaint as true," construe those facts in the light most favorable to the non — moving party, and "ascertain whether they state a claim on which relief could be granted." Papasan v. Allain, 478 U.S. 265, 283 (1986). The Court may dismiss the Complaint only if "it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations." H. J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50 (1989) (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984)). A complaint by a pro se plaintiff is examined under a less stringent standard than a complaint that has been authored by an attorney and will be dismissed only if it is "beyond doubt" that no set of facts could be proven to support the claim for relief. McDowell v. Delaware State Police, 88 F.3d 188, 189 (3d Cir. 1996) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).ANALYSIS
1. RICO
To bring a RICO claim under 18 U.S.C. § 1962(a), a plaintiff must show that there was a pattern of racketeering activity that included at least two predicate acts. H.J. Inc., 492 U.S. at 237. Luqman attempts to bring a claim under 18 U.S.C. § 1964, which creates a civil remedy for violation of 18 U.S.C. § 1962, but fails to meet the two predicate acts requirement. While Luqman states that Interbay committed fraud in the course of the mortgage transaction, he fails to allege a second predicate act that is relevant to his RICO claim. Even if a second predicate act were alleged, however, the RICO claim would still be insufficient because Luqman fails to plead fraud with particularity as required by Fed.R.Civ.P. 9(b). Accordingly, the Complaint fails to state a claim under 18 U.S.C. § 1962 and 1964.
2. Section 1983
To establish a claim under § 1983, Luqman must demonstrate that Interbay acted under color of state law. Regalbuto 937 F. Supp. at 377. A claim arises under color of state law for purposes of § 1983 if the activities meet the state action requirement of the Fourteenth Amendment. See Krvnickv v. University of Pittsburgh, 742 F.2d 94, 97 (3d Cir. 1984). A bank's use of state foreclosure proceedings does not make it a state actor. See Shipley v. First Federal Savings Loan Ass'n, 703 F. Supp. 1122, 1128 (D. Del. 1988). Because Luqman fails to allege any actions by Interbay under color of state law, he fails to state a claim under § 1983.
3. Truth — in — Lending Act
Luqman alleges that the mortgage violated the Truth — in — Lending Act ("TILA"), 15 U.S.C. § 1601. TILA "was passed primarily to aid the unsophisticated consumer so that he would not be easily misled as to the total costs of financing. . . .[T]he Act seeks `to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various terms available to him and avoid the uninformed use of credit.'" Thomka v. A.Z. Chevrolet. Inc., 619 F.2d 246, 248 (1980) (quoting 15 U.S.C. § 1601).
A TILA claim must be filed within one year of the violation. 15 U.S.C. § 1640(e). The mortgage was dated April 30, 2001, and Luqman's Complaint was filed more than one year later on September 27, 2002. Because any TILA claim related to the mortgage would be time — barred, Luqman's claim under 15 U.S.C. § 1601 will be dismissed.
Section 1640 creates an exception to this statute of limitations when there has been "an action to collect the debt which was brought more than one year from the date of the occurrence of the violation as a matter of defense by recoupment or set — off in such action, except as otherwise provided by State law." 15 U.S.C. § 1640(e).
The exception does not apply to this case, however, because Luqman brought his TILA claim as an original claim rather than as a defense to the foreclosure action that was brought in the Court of Common Pleas on October 2, 2002. Furthermore, the Court of Common Pleas entered default judgment on January 2, 2003.
4. Fair Debt Collection Practices Act and Credit Repair Agency Statute
Luqman attempts to bring a claim under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCA"). The FDCA governs the activities of debt collectors, and the definitions provision specifically excludes "any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor." 15 U.S.C. § 1692a. There are no facts in the pleadings to suggest that Interbay falls under the FDCA definition of debt collectors. Accordingly, the Complaint fails to state a claim under the statute.
There are two defendants in this case: Interbay L.L.C. and First Union National Bank. According to the record from the state court, Interbay L.L.C. held the mortgage on 6122 Germantown Ave. Accordingly, Interbay L.L.C. was a creditor, not a debt collector. There are no facts in the pleadings to suggest that First Union National Bank was a debt collector.
Luqman also cites 15 U.S.C. § 1679, which regulates the conduct of credit repair agencies. There are no factual allegations in the Complaint regarding credit repair agencies. Accordingly, the Complaint fails to state a claim under this provision.
5. H.J.R. 192
Luqman attempts to make an additional federal claim under H.J.R. 192. H.J.R. 192 was adopted by Congress to prohibit contracts that demand payment in gold. (H.J.R. 192, 73d Cong. (1933)). There are no facts in the record to suggest that Luqman's mortgage required payment in gold. Accordingly, there is no reason to believe that Interbay violated H.J.R. 192.
6. State Law Claims
Luqman states a number of claims under state law, including fraud, usury, and embezzlement. He also claims that the mortgage contract is void for lack of consideration.
When a federal court would have original jurisdiction over a claim on the basis of 28 U.S.C. § 1331, it may exercise supplemental jurisdiction over claims "that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." 28 U.S.C. § 1367. Because the federal claims asserted by Luqman must be dismissed on the pleadings, the Court will not exercise supplemental jurisdiction over the state law claims.
Diversity jurisdiction is also lacking. While Luqman claims that jurisdiction exists under § 1332, he fails to plead either his own citizenship or Interbay's citizenship. A plaintiff must explicitly plead diversity of citizenship in order to successfully plead jurisdiction under § 1332. See Wright Miller § 1208. Because it appears that this Court lacks subject matter jurisdiction over the state law claims, they will be dismissed.
7. Foreclosure Action
This Court also lacks jurisdiction over the foreclosure action. Luqman's Notice of Removal lists federal question jurisdiction as the grounds for removal, but the foreclosure claim does not arise under either a federal statute or the Constitution. Furthermore, there is neither diversity jurisdiction nor supplemental jurisdiction over the foreclosure claims for the same reasons that there is neither diversity nor supplemental jurisdiction over the state claims in the Complaint. "If at anytime before final judgment it appears that the district court lacks subject matter jurisdiction [over a matter that has been removed], the case shall be remanded." 28 U.S.C. § 1447. Accordingly, the foreclosure claims will be remanded to state court.
Finally, Luqman moves to dismiss the foreclosure action against him under Fed.R.Civ.P. 12(b). Luqman filed his 12(b) motion as part of his federal Complaint on September 27, 2002, apparently in an attempt to attack the expected foreclosure action. The foreclosure action was not brought until October 2, 2002, however, and it was filed in state court. Furthermore, the Court of Common Pleas entered default judgment prior to removal. By the time Luqman removed the foreclosure action, there was no longer any pending claim to be removed. Accordingly, there is no claim against Luqman for this Court to dismiss, so Luqman's motion under Rule 12(b) will be denied.
CONCLUSION
It is beyond doubt that no set of facts could be proved to support Luqman's claims for relief. Accordingly, the Complaint will be dismissed. Because Luqman has filed the Complaint pro se, however, the Court will grant him twenty days to file an amended Complaint if he can do so in good faith. Those claims that were removed from the Pennsylvania Court of Common Pleas will be remanded to that court.
Interbay also argues that its Motion to Dismiss should be granted because Luqman failed to sign his Complaint and because he failed to conduct a reasonable inquiry into the relevant law, as required by Fed.R.Civ.P. 11. The Court need not reach these allegations because the Complaint will be dismissed on other grounds.
ORDER
AND NOW, this ___ day of September, 2003, upon consideration of Defendants' Motion To Dismiss (docket no. 14), it is ORDERED that Defendants' Motion is GRANTED for the reasons stated in the accompanying Memorandum, and the claims set forth in the Complaint are DISMISSED. Plaintiffs shall have twenty (20) days from the receipt of this Order to file an Amended Complaint if they are able in good faith to do so.It is FURTHER ORDERED that the foreclosure claim that was removed from the Pennsylvania Court of Common Pleas (docket no. 22) is REMANDED.