Opinion
4:18-CV-112-FL
01-09-2019
NELLIE NEWSOM, Plaintiff, v. BRANCH BANKING AND TRUST COMPANY, et al., Defendants.
ORDER and MEMORANDUM AND RECOMMENDATION
This pro se case is before the court on the motion to proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) (D.E. 1) by plaintiff Nellie Newsom ("plaintiff") and for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff has also filed a motion for a temporary restraining order and other injunctive relief. D.E. 1-6 ("TRO Motion"). The motion to proceed in forma pauperis was referred to the undersigned Magistrate Judge for determination pursuant to 28 U.S.C. § 636(b)(1)(A) and the other matters for issuance of a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See Public D.E. dated 23 Oct. 2018. As set out below, the motion to proceed in forma pauperis will be allowed; and it will be recommended that the TRO motion be denied and all but one of plaintiff's claims—the fifth cause of action—be dismissed for lack of subject matter jurisdiction pursuant to the Rooker-Feldman and Younger doctrines and/or failure to state a claim upon which relief can be granted.
ORDER ON IN FORMA PAUPERIS MOTION
The court finds that plaintiff has adequately demonstrated her inability to prepay the required court costs. Her motion to proceed in forma pauperis is therefore GRANTED.
MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW
AND TRO MOTION
I. PLAINTIFF'S ALLEGATIONS, CLAIMS, AND TRO MOTION
In this action, commenced on 25 June 2018, plaintiff alleges improprieties in lending practices and foreclosure proceedings relating to her real property located at 544 Pine Ridge Road, Roanoke Rapids, Halifax County, North Carolina ("the property"). See Compl. (D.E. 1-1) ¶¶ 2, 19. She contends that defendants, who are originators, servicers, or holders of the mortgage loan on the property, have violated state and federal regulations. See id. ¶¶ 2-18. The alleged violations are grounded, in part, on the purported fact that defendants have no ownership interest in the property in question and should not be permitted to sell, auction off, foreclose on, or otherwise transfer ownership of it. Id. ¶ 22.
Specifically, in her complaint, plaintiff alleges as follows: On 7 July 2005, plaintiff executed a negotiable promissory note and security interest in the form of a deed of trust for $249,000 with defendant Branch Banking and Trust Company ("BBT") as the original lender. Id. ¶¶ 3; 36-38. Plaintiff alleges that on or around 31 October 2005 the promissory note was sold, transferred, assigned, and securitized to Morgan Stanley Mortgage Loan Trust 2005-7 ("Morgan Stanley Trust"). Id. ¶ 42. Defendant Mortgage Electronic Registration Services, Inc. ("MERS") acted as the electronic agent and as a purported beneficiary for BBT under the deed and in a capacity as bailor/bailee for each successor defendant of the Morgan Stanley Trust. Id. ¶¶ 9, 28.
Defendant Deutsche Bank National Trust Company ("Deutsche Bank") is the Trustee of the Morgan Stanley Trust and defendant Morgan Stanley Mortgage Capital, Inc. ("Morgan Stanley Mortgage Capital") is the sponsor of the Morgan Stanley Trust. Id. ¶¶ 4, 7. Defendant Morgan Stanley Capital I, Inc. ("Morgan Stanley Capital") is the depositor. Id. ¶ 8. Defendant Wells Fargo Bank, National Association ("Well Fargo") is the master servicer of plaintiff's loan. Id. ¶ 5. Defendant Specialized Loan Servicing, LLC ("Specialized Loan Servicing") and defendant SN Servicing Corporation ("SN") are servicers of the loan. Id. ¶¶ 6, 10. Defendants FV-I, Inc. ("FV-I"), Morgan Stanley Mortgage Capital Holdings, LLC ("Morgan Stanley Mortgage Capital Holdings"), U.S. Bank Trust National Association ("U.S. Bank Trust"), and Igloo Series II Trust ("Igloo Trust") are holders of the loan. Id. ¶¶ 11, 12, 13, 15. Defendant Hutchens Law Firm ("Hutchens") is the firm representing SN and a substitute trustee of the loan. Id. ¶¶ 15, 16. John Does 1-100 are unnamed defendants who claim any right, title, or interest in plaintiff's property. Id. ¶ 17.
On 24 February 2014, an assignment deed of trust to FV-I, Inc. in trust for Morgan Stanley Mortgage Capital Holdings was recorded in Halifax County. Id. ¶ 43. The 24 February 2014 assignment of deed of trust was fraudulently signed and was an unlawful and void transfer. Id. ¶¶ 44-47.
On 8 November 2016, an assignment of deed of trust to Morgan Stanley Capital Holdings recorded in Halifax County was fraudulently signed and was an unlawful and void transfer. Id. ¶¶ 48-52. Also on 8 November 2016, another assignment of deed of trust to U.S. Bank Trust as Trustee of the Igloo Trust was recorded in Halifax County. Id. ¶ 53. This additional assignment of deed of trust on 8 November 2016 was also fraudulently signed and was an unlawful unilateral transfer that is void on its face. Id. ¶¶ 54-57. Only the depositor, Morgan Stanley Capital, has the right to convey the asset into the trust. Id. ¶ 58.
On 20 June 2018, defendants fraudulently foreclosed on the property. Id. ¶ 121.
Plaintiff asserts the following claims or, as she refers to them, causes of action, each sequentially numbered in the complaint as indicated: (1) lack of standing to foreclose and wrongful foreclosure, id. ¶¶ 60-73; (2) unconscionable contract, id. ¶¶ 74-80; (3) breach of contract, id. ¶¶ 81-85; (4) breach of fiduciary duty, id. ¶¶ 86-90; (5) violations of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601, et seq., id. ¶¶ 91-97; (6) violations of the Real Estate Settlement Procedures Act ("RESPA"), 1 U.S.C. § 2601, et seq., id. ¶¶ 98-103; (7) fraud in the concealment, id. ¶¶ 104-112; (8) fraud in the inducement, id. ¶¶ 113-119; (9) intentional infliction of emotional distress, id. ¶¶ 120-130; (10) slander of title, id. ¶¶ 131-141; (11) quiet title, id. ¶¶ 142-149; (12) rescission, id. ¶¶ 150-154; (13) declaratory relief, id. ¶¶ 155-158; and (14) a temporary restraining order and other injunctive relief enjoining sale of the property pending trial, id. ¶¶ 159-164. In addition to the injunctive relief noted, plaintiff seeks declaratory relief, monetary relief between $100,000 and $2 million (including compensatory and punitive damages), pre- and post-judgment interest, the refund of wrongfully paid sums, costs, and such other relief to which she is entitled. See, e.g., id. at 36-37 ¶¶ A-D, F, G.
In her complaint, plaintiff references the following exhibits she purports to attach to her complaint: the deed of trust, id. ¶ 21; an internet article, id. ¶ 23; an asset securitization manual, id. ¶ 24; a MERS procedural manual, id. ¶ 28; a MERS patent, id. ¶ 28; a Morgan Stanley prospectus supplement, id. ¶ 30; and an affidavit of a forensic expert, id. ¶ 34. But none of these documents are included anywhere in her filings. The documents that are attached to the complaint are: an affidavit by plaintiff (D.E. 1-2), a lis pendens (D.E. 1-3), and the TRO motion (D.E. 1-6) and a proposed order (D.E. 1-7) allowing it.
The TRO motion seeks essentially the same relief sought by plaintiff in her fourteenth cause of action—that is, enjoining defendants from selling the property pending trial on her claims.
II. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW
After allowing a party to proceed in forma pauperis, as here, the court must conduct a frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). The court must dismiss the if it determines that the action is frivolous or malicious, 28 U.S.C. § 1915(e)(2)(B)(i); fails to state a claim upon which relief can be granted, id. § 1915(e)(2)(B)(ii); or seeks monetary relief from an immune defendant, id. § 1915(e)(2)(B)(ii). 28 U.S.C. § 1915(e)(2)(B); see Denton v. Hernandez, 504 U.S. 25, 27 (1992) (standard for frivolousness).
Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain "a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(1), (2). Case law explains that the complaint must "'state[ ] a plausible claim for relief' that 'permit[s] the court to infer more than the mere possibility of misconduct' based upon 'its judicial experience and common sense.'" Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Likewise, a complaint is insufficient if it offers merely "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "naked assertion[s]" devoid of "further factual enhancement." Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)).
In evaluating frivolity specifically, a pro se plaintiff's pleadings are held to "less stringent standards" than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is not required to accept a pro se plaintiff's contentions as true. Denton, 504 U.S. at 32. Instead, the court is permitted to "pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327 (1989). Provided that a plaintiff's claims are not clearly baseless, the court must weigh the factual allegations in plaintiff's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.
A court may consider subject matter jurisdiction as part of the frivolity review. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that "[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure"); Cornelius v. Howell, No. 3:06-3387-MBS-BM, 2007 WL 397449, at *2-4 (D.S.C. 8 Jan. 2007) (discussing the lack of diversity jurisdiction during frivolity review as a basis for dismissal). "Federal courts are courts of limited jurisdiction and are empowered to act only in those specific situations authorized by Congress." Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 336 (1895). The burden of establishing subject matter jurisdiction rests on the party invoking jurisdiction, here plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) ("The burden of proving subject matter jurisdiction . . . is on the plaintiff, the party asserting jurisdiction."). The complaint must affirmatively allege the grounds for jurisdiction. Bowman, 388 F.2d at 760. If in a frivolity review the court determines that it lacks subject matter jurisdiction, it must dismiss the action pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). More generally, "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3).
One basis for subject matter jurisdiction, so-called federal question jurisdiction, is that a claim arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Another basis is diversity of citizenship or so-called diversity jurisdiction, which requires that the citizenship of each plaintiff be different from that of each defendant. Id. § 1332; see Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372-74 (1978). There are also statutes conferring jurisdiction for particular types of cases.
III. DISCUSSION
A. Injunctive Relief Enjoining Foreclosure Proceedings (Fourteenth Cause of Action) (Compl. ¶¶ 159-64) and TRO Motion
Plaintiff's fourteenth cause of action and TRO motion—both seeking, as indicated, to enjoin state court proceedings regarding the property pending resolution of plaintiff's claims in this court—should be dismissed and denied, respectively, for lack of subject matter jurisdiction because they implicate the Rooker-Feldman doctrine and the Younger doctrine. Each doctrine is discussed in turn below.
Because plaintiff's complaint does not make clear the current status of the state foreclosure proceedings, the court cannot conclusively determine the extent to which the Rooker-Feldman doctrine, which applies to completed state court proceedings, rather than the Younger doctrine, which applies to ongoing state proceedings, divests it of subject matter jurisdiction over the fourteenth cause of action, the TRO motion, and other causes of action specified below. No such conclusive determination, or resolution of the ambiguity in the status of the state proceedings, is necessary, however, because the court is satisfied that one doctrine or the other applies to the fourteenth cause of action, the TRO motion, and the other causes of action specified below. To accommodate the ambiguity, the court speaks at times in terms of both doctrines being implicated.
1. Rooker-Feldman Doctrine
The Rooker-Feldman doctrine bars federal courts from sitting "in direct review of state court decisions." District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-84 (1983). "[T]he Rooker-Feldman doctrine applies only when the loser in state court files suit in federal district court seeking redress for an injury allegedly caused by the state court's decision itself." Davani v. Virginia Dep't of Transp., 434 F.3d 712, 713 (4th Cir. 2006) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005)). This doctrine also prohibits a district court from reviewing constitutional claims that are "inextricably intertwined" with a state court decision. Shooting Point, LLC v. Cumming, 368 F.3d 379, 383 (4th Cir. 2004). A constitutional claim is "inextricably intertwined" with a state court decision if "'success on the federal claim depends upon a determination that the state court wrongly decided the issues before it.'" Id. (quoting Plyler v. Moore, 129 F.3d 728, 731 (4th Cir. 1997)); see also Curley v. Adams Creek Assocs., 409 F. App'x 678, 680 (4th Cir. 2011) (holding that Rooker-Feldman precluded subject matter jurisdiction over plaintiff's claim that the state court violated her due process rights by failing to give her notice before disposing of real property owned by her); Jordahl v. Democratic Party of Va., 122 F.3d 192, 202 (4th Cir. 1997) (holding that a federal claim is "'inextricably intertwined" where "in order to grant the federal relief sought, the federal court must determine that the [state] court judgment was erroneously entered or must take action that would render the judgment ineffectual"' (quoting Ernst v. Child and Youth Servs., 108 F.3d 486, 491 (3d Cir. 1997))).
In other words, Rooker-Feldman applies "when the federal action 'essentially amounts to nothing more than an attempt to seek review of [the state court's] decision by a lower federal court.'" Davis v. Durham Mental Health Devel. Disabilities Substance Abuse Area Auth., 320 F. Supp. 2d 378, 388 (M.D.N.C. 2004) (quoting Plyer v. Moore, 129 F.3d 728, 733 (4th Cir. 1997)). "The key inquiry is not whether the state court ruled on the precise issue raised in federal court, but whether the 'state-court loser who files suit in federal court seeks redress for an injury caused by the state-court decision itself.'" Willner v. Frey, 243 F. App'x 744, 747 (4th Cir. 2007) (quoting Davani, 434 F.3d at 718). "'[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, based on the losing party's claim that the state judgment itself violates the loser's federal rights.'" Brown & Root, Inc. v. Breckenridge, 211 F.3d 194, 198 (4th Cir. 2000) (quoting Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994)).
In Smalley v. Shapiro & Burson, LLP, 526 F. App'x 231 (4th Cir. 2013), the Fourth Circuit ruled that the claims of borrowers challenging practices engaged in by defendants during foreclosure proceedings were barred by Rooker-Feldman. Specifically, in that case, the borrowers instituted a federal suit charging the substitute trustees with claims under the Racketeer Influenced and Corrupt Organizations Act, the Fair Debt Collection Practices Act, Fair Housing Act, and Civil Rights Act, arising from their practices of supporting foreclosures with false affidavits. 526 F. App'x at 235. The Fourth Circuit held that even though the plaintiffs were not seeking to "undo" the state court judgments foreclosing on their homes, their success would necessitate a determination that the judgments, which awarded legal fees and commissions in reliance on allegedly false affidavits, were erroneous. Id. at 236. In short, because it was the state court judgments that were the cause of plaintiffs' harm, the court held that the federal court action was barred by Rooker-Feldman. Id. at 237.
Here, the basis for plaintiff's fourteenth cause of action and the TRO motion is the state court foreclosure proceedings. Determination of the fourteenth cause of action and the TRO motion in her favor could well require this court to find that completed state court foreclosure proceedings were conducted in an improper manner, produced an improper result, or both. The Rooker-Feldman doctrine prohibits this court from making such a determination. Plaintiff, of course, retains access to the state courts for pursuit of the relief she seeks.
The court concludes that the Rooker-Feldman doctrine is implicated by plaintiff's fourteenth cause of action and TRO motion and, consequently, that this court lacks subject matter jurisdiction over them to the extent that the Rooker-Feldman doctrine does apply. To the extent that the Rooker-Feldman doctrine does apply to them, the fourteenth cause of action is subject to dismissal and the TRO motion subject to denial on this ground. See, e.g., Jones v. Wells Fargo Bank, N.A., No. CV 6:17-2486-BHH, 2018 WL 4203672, at *2 (D.S.C. 4 Sept. 2018) ("It is abundantly clear both that Plaintiff's instant claims are "inextricably intertwined" with the state court foreclosure matters, and that the vast majority of specific issues he raises have already been 'actually decided' in the state court cases."); Carmichael v. Irwin Mort. Corp., No. 5:14-CV-122-D, 2014 WL 7205099, at *3 (E.D.N.C. 17 Dec. 2014) ("This court, however, lacks subject-matter jurisdiction to sit in direct review of a North Carolina state foreclosure action."); Everette v. Peele, No. 5:14-CV-213-BO, 2014 WL 4961099, at *3 (E.D.N.C. 28 July 2014) ("Although Plaintiff is not explicitly requesting that the court vacate or 'undo' the state court's judgment of foreclosure, to grant relief on this claim would require a finding that the state court's judgment was in error. As such, this claim should be dismissed as barred by the Rooker-Feldman doctrine."), mem. & recomm. adopted, 2014 WL 4961102, at *1 (3 Oct. 2014); Ruiz v. Nationstar Mortg. LLC, No. 1:12CV272, 2013 WL 4519180, at *3 (M.D.N.C. 26 Aug. 2013) ("Plaintiff's remedy for these and the other alleged defects in the state foreclosure proceeding was to appeal through the state judicial system and then seek review in the Supreme Court of the United States. This Court lacks subject matter jurisdiction to review the state court's order."), aff'd, 556 F. App'x 271 (4th Cir. 25 Feb. 2014); Grantham v. Grayspencer, 5:11-CV-689-BO, 2012 WL 13019697 (E.D.N.C. 12 June 2012) (dismissing removed action and denying stay of state foreclosure proceedings pursuant to Rooker-Feldman doctrine).
2. Younger Doctrine
Younger v. Harris, 401 U.S. 37 (1971) established the principle that federal courts should not intervene in state court criminal, civil, and administrative proceedings. Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975). "Younger and 'its progeny espouse a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances.'" Beam v. Tatum, 299 F. App'x 243, 245 (4th Cir. 2008) (quoting Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431 (1982)). Abstention is required where "(1) there is an ongoing state judicial proceeding brought prior to substantial progress in the federal proceeding; that (2) implicates important, substantial, or vital state interests; and (3) provides adequate opportunity to raise constitutional challenges." Nivens v. Gilchrist, 444 F.3d 237, 241 (4th Cir. 2006).
Here, not only does plaintiff challenge the legality of the state court foreclosure proceeding, but she asks this court to intervene and enjoin the state court from allowing the foreclosure sale to proceed and to otherwise insert itself into a pending state court proceeding. Matters relating to foreclosure proceedings unquestionably implicate important state interests. Harper v. Pub. Serv. Comm'n of W. Va., 396 F.3d 348, 352 (4th Cir. 2005) ("[P]roperty law concerns, such as land use and zoning questions, are frequently 'important' state interests justifying Younger abstention."); Wilder v. Hutchens, Senter, Kellam & Pettit, P.A., No. 3:14-CV-00361-FDW-DCK, 2014 WL 4854599, at *3 (W.D.N.C. 30 Sep. 2014) ("Plaintiff's claims concerning the ongoing foreclosure matters clearly implicate important state interests."); Hayes v. JP Morgan Chase Bank, No. 3:13-cv-1884-JFA, 2014 WL 4198897, at *3 (D.S.C. 20 Aug. 2014) ("Courts in this district have recognized that 'there is an important state interest in adjudicating foreclosure matters pertaining to real property located within the state.'" (quoting Dennis v. HSBC Mortg. Servs., Inc., No. 0:10-2693-MJP-PJG, 2011 WL 3876916, at *3 (D.S.C. 11 Aug. 2011))); Ward v. Branch Banking & Trust Co., No. ELH-13-01968, 2014 WL 2707768, at *9 (D. Md. 13 June 2014) (holding that the state has a substantial interest in foreclosure proceedings because they implicate state property law in case where plaintiff contended that defendants submitted falsified and invalid documents in a foreclosure proceeding). Plaintiff has an adequate state forum to pursue her claims. See Thomas v. Equitable Life Mortg. and Realty Investors, No. 3:13-130-CMC-PJG, 2013 WL 2352589, at *8 (D.S.C. 29 May 2013) (holding that plaintiff could raise his constitutional claims arising under foreclosure proceeding in state court because "'ordinarily a pending state [proceeding] provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights'" (quoting Kugler v. Helfant, 421 U.S. 117, 124 (1975))). The court accordingly concludes that to the extent the Younger doctrine, as opposed to the Rooker-Feldman doctrine, applies to plaintiff's fourteenth cause of action and the TRO motion, they are subject to dismissal and denial, respectively, on this ground.
For the reasons stated, it will be recommended that the fourteenth cause of action be dismissed and the TRO motion be denied.
B. Lack of Standing to Foreclose and Wrongful Foreclosure (First Cause of Action) (Compl. ¶¶ 60-73)
In her claim for lack of standing and wrongful foreclosure, which is against all defendants, plaintiff contends that none of them have an equitable right to foreclose on the property because they failed to perfect any security interest, cannot prove they possess a valid interest, and cannot move forward with foreclosure proceedings. Compl. ¶ 61. She contends that MERS cannot be a real party in interest in a securitized mortgage and lacks corporate authority to foreclose on the property. Id. ¶ 64. She requests that the title to the property remain in her name and that any attempted sale be deemed unlawful and void. Id. ¶ 62.
As with plaintiff's fourteenth cause of action for equitable relief, the court is without jurisdiction to resolve this claim on the merits. A resolution of this claim in plaintiff's favor would implicate the Rooker-Feldman and Younger doctrines. Walker v. Rushmore Loan Mgmt. Servs., LLC, No. 3:15-CV-607-RJC-DCK, 2016 WL 3746577, at *4 (W.D.N.C. 16 June 2016) (recommending dismissal of claim for lack of standing to foreclose on basis of Rooker-Feldman), rep. & recomm. adopted sub nom. Walker v. SGB Corp., 2016 WL 3741873 (11 July 2016); Naylor v. Wells Fargo Home Mortg., Inc., No. 3:15-CV-116-RJC, 2016 WL 55292, at *7 (W.D.N.C. 5 Jan. 2016) (same).
In addition, plaintiff's claim for wrongful foreclosure appears to rest on her incorrect understanding of North Carolina law with respect to MERS. Plaintiff's allegations with respect to this claim rest largely on her contention that the foreclosure proceedings are void based upon MERS' lack of authority to participate in the assignment of any security interest in the property. This argument has been rejected by other courts. See Hopper v. Mortg. Elec. Registration Sys., Inc., No. 318-CV-00034FDWDSC, 2018 WL 1278204, at *3 (W.D.N.C. 12 Mar. 2018) ("North Carolina courts have consistently held that use of MERS comports with North Carolina law; MERS has the authority to assign its rights under deeds of trust and has standing to participate in the foreclosure process."); Stephens v. Bank of Am., No. 5:16-CV-660-F, 2017 WL 384315, at *7 (E.D.N.C. 25 Jan. 2017) ("The assertion that MERS' involvement somehow voids deeds of trust and any assignments thereof has been squarely rejected in North Carolina."); In re Sprouse, No. 09-31054, 2014 WL 948490, at *4 (Bankr. W.D.N.C. 11 Mar. 2014) ("Plaintiff cannot now assert that the assignments are void (Seventh Claim), that Defendants' liens are void pursuant to 11 U.S.C. § 506(d) (Second Claim), or that the rights of the Trustee are superior to that of Defendants (Third Claim) based upon an attack on the use of MERS."); Joy v. Merscorp, Inc., 5:10-CV-218-FL, 2012 WL 7804203, at *13 (E.D.N.C. 15 May 2012) ("[O]ther courts have held that MERS is lawful and accordingly has the authority to assign its rights under deeds of trust and has standing to participate in the foreclosure process."), adopted in relevant part, 935 F. Supp. 2d 848, 859-60 (2013); see also English v. Ryland Mortg. Co., No. GJH-16-3675, 2017 WL 3475674, at *4 (D. Md. 11 Aug. 2017) ("Courts in this jurisdiction and elsewhere have 'routinely rejected challenges to loan securitization [] and assignments executed through the MERS system.'" (quoting Parker v. Am. Brokers Conduit, 179 F. Supp. 3d 509, 516-17 (D. Md. 2016))). Thus, even were the court to find it had jurisdiction to review the foreclosure proceedings, plaintiff has failed to state a claim upon which relief can be granted.
It will therefore be recommended that the first cause of action in the complaint be dismissed.
C. Unconscionable Contract (Second Cause of Action) (Compl. ¶¶ 74-80)
Plaintiff asserts her claim for unconscionable contract against BBT, Deutsche Bank, Wells Fargo, National Association, Specialized Loan Servicing, Morgan Stanley Capital I, and Does 1-100. She alleges specifically that these defendants' actions resulted in her being misled and tricked into losing the property. Compl. ¶ 75. The only specific allegations she asserts in this claim relate to BBT. Id. ¶¶ 76-80. She alleges that BBT concealed information about the financial benefit it would acquire when entering into the mortgage and intended to exploit plaintiff's disadvantage in the transaction. Id.
As an initial matter, because BBT is the only defendant as to which any specific allegations in this claim are asserted, the claim fails against all of the other defendants for failure to state a claim.
As to BBT, similar to plaintiff's fourteenth cause of action for equitable relief, the court is without jurisdiction to resolve this claim on the merits. The claim arises from and flows out of the state foreclosure proceedings and is more properly challenged in the state forum. A resolution of this claim in plaintiff's favor would implicate the Rooker-Feldman and Younger doctrines.
It will accordingly be recommended that the second cause of action in plaintiff's complaint be dismissed.
D. Breach of Contract (Third Cause of Action) (Compl. ¶¶ 81-85)
Plaintiff asserts her breach of contract claim against defendants BBT and MERS. This claim rests on plaintiff's allegation that BBT and MERS, as BBT's electronic agent, breached the deed of trust because BBT was paid in full, but failed to satisfy, release, and reconvey the security instrument as required by paragraph 23 the deed of trust. Compl. ¶¶ 83-85.
To state a claim for a breach of contract, a plaintiff must allege (1) the existence of a valid contract and (2) breach of the terms of that contract. Abbington SPE, LLC v. U.S. Bank, Nat'l Ass'n, No. 7:16-CV-249-D, 2016 WL 6330389, at *4 (E.D.N.C. 27 Oct. 2016), aff'd, 698 F. App'x 750 (4th Cir. 2017). Further, "[w]hen alleging that a defendant has breached a contract, a plaintiff must allege the specific provisions of the contract that were breached." Laws v. Priority Tr. Servs. of N.C., 610 F. Supp. 2d 528, 533 (W.D.N.C. 2009) (citing Polygenex Int'l, Inc. v. Polyzen, Inc., 133 N.C. App. 245, 252, 515 S.E.2d 457, 462 (1999)), aff'd sub nom. Laws v. Priority Tr. Servs. of N. Carolina, LLC, 375 F. App'x 345 (4th Cir. 2010).
As with plaintiff's fourteenth cause of action for equitable relief, the court is without jurisdiction to resolve this claim on the merits. The claim arises from and flows out of the state foreclosure proceedings and is more properly challenged in the state forum. A resolution of this claim in plaintiff's favor would implicate the Rooker-Feldman and Younger doctrines. It will therefore be recommended that the third cause of action in plaintiff's complaint be dismissed.
E. Breach of Fiduciary Duty (Fourth Cause of Action) (Compl. ¶¶ 86-90)
Plaintiff's claim of breach of fiduciary duty is against BBT. She alleges that it breached its purported fiduciary duties to disclose to her that it was not a legitimate creditor and to satisfy, release, and reconvey the real property lien deed of trust in accordance with paragraph 23 of the deed of trust. Compl. ¶¶ 87, 89.
As with plaintiff's fourteenth cause of action for equitable relief, the court is without jurisdiction to resolve this claim on the merits. The claim arises from and flows out of the state foreclosure proceedings and is more properly challenged in the state forum. A resolution of this claim in plaintiff's favor would implicate the Rooker-Feldman and Younger doctrines. See Broadnax v. BSI Fin. Servs. Inc., No. 1:17CV42, 2017 WL 4220456, at *3 (M.D.N.C. 21 Sept. 2017) (dismissing breach of fiduciary duty claim arising during foreclosure under Rooker-Feldman).
In addition, the fourth cause of action appears to fail to state a claim upon which relief can be granted because "[a]s a matter of law, there is no fiduciary relationship between a lender and a borrower under North Carolina law." Landmar, LLC v. Wells Fargo Bank, N.A., 978 F. Supp. 2d 552, 567 (W.D.N.C. 2013). Plaintiff has not asserted allegations taking her claim outside the scope of this general principle.
For the foregoing reasons, it will be recommended that the fourth cause of action in plaintiff's complaint be dismissed.
F. RESPA (Sixth Cause of Action) (Compl. ¶¶ 98-103)
Plaintiff asserts this claim against all defendants. She alleges that the payments between the defendants were misleading, deceptive, and self-serving. Compl. ¶ 102.
RESPA "was enacted to enable consumers to better understand the home purchase and settlement process and, where possible, to bring about a reduction in settlement costs." Stephens, 2017 WL 384315, at * 6 (citing 12 U.S.C. § 2601). RESPA requires "certain actions to be followed by entities or persons responsible for servicing federally related mortgage loans, including providing borrowers written notice of an assignment or transfer of the loan," as well as requiring lenders to provide certain services, including disclosure and preparation of particular forms and a good faith estimate of charges to be imposed at closing. Id. (citing 12 U.S.C. § 2605(b)). "RESPA creates a private right of action for only three types of wrongful acts: 1) failure of a loan servicer to provide proper notice about a transfer of servicing rights or to respond to a qualified written request for loan information, 12 U.S.C. § 2605; 2) payment of a kickback or unearned fees for real estate settlement services, 12 U.S.C. § 2607; and 3) requiring a buyer to use a title insurer chosen by the seller, 12 U.S.C. § 2608." Solomon v. PNC Mortg. Co., No. 5:13-CV-421-FL, 2013 WL 4461538, at *4 (E.D.N.C. 14 June 2013) (citing McKinney v. Fulton Bank, 776 F. Supp. 2d 97, 103 (D. Md. 2010)), mem. & recomm. adopted, 2013 WL 4461538, at *1 (20 Aug. 2013).
As with plaintiff's TILA claim, discussed below, her RESPA claim is independent from the foreclosure proceedings and does not implicate concerns of lack of subject matter jurisdiction as many of her other claims do. See Naylor, 2016 WL 55292, at *5 (allowing RESPA claim to proceed). However, plaintiff has not alleged adequate facts to support the assertion of this claim, including not identifying which defendants violated RESPA and in what way. See Stephens, 2017 WL 384315, at *7 (dismissing RESPA claim in part for providing only vague and facially insufficient allegations to support the claim). The conclusory allegations in plaintiff's claim relate mainly to the purpose of the statute and fail to adequately put a defendant on notice as to the nature of its alleged wrongdoing under this statute. Accordingly, while a RESPA claim is conceivably able to proceed in this litigation, the present allegations fail to adequately state a claim against any defendant upon which relief can be granted. It will therefore be recommended that this claim be dismissed.
G. Fraud in the Concealment (Seventh Cause of Action) (Compl. ¶¶ 104-12) and Fraud in the Inducement (Eighth Cause of Action) (Compl. ¶¶ 113-19)
In her claim for fraud in the concealment, plaintiff alleges that all defendants concealed the fact that the loans were securitized and the terms of the securitization agreements. Compl. ¶ 105. Specifically, plaintiff alleges that defendants changed the character of the loan by allowing it to be included in a pool with other notes and that had defendants advised plaintiff of that fact, she would not have entered into the loan. Id. ¶ 105-06. She claims that the actions were done with malice, fraud, and/or oppression, and plaintiff relied upon the misrepresentations to her detriment. Id. ¶¶ 108, 112.
In her fraud in the inducement claim, plaintiff alleges that defendants intentionally misrepresented to plaintiff that they were entitled to exercise the power of sale provision in the deed of trust when they have no legal entitlement to do so. Id. ¶ 114. Defendants misrepresented that they were the "'holder and owner'" of the note and beneficiary of the deed of trust in order to deceive plaintiff and are fraudulently foreclosing on the property. Id. ¶¶ 115-17.
Essential to a claim of fraud is a plausible allegation of a "(1) [a] false representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party." Jackson v. Minnesota Life Ins. Co., 275 F. Supp. 3d 712, 730 (E.D.N.C. 2017). Fraud claims must be pled with particularity. Fed. R. Civ. P. 9(b); Stephens, 2017 WL 384315, at *8 n.14.
As an initial matter, the court is without jurisdiction to resolve plaintiff's fraud claims on the merits. The claims arise from and flow out of the foreclosure proceedings and are more properly challenged in the state forum. A resolution of these claims in plaintiff's favor would implicate the Rooker-Feldman and Younger doctrines. Walker, 2016 WL 3746577, at *4 (making subsequently adopted recommendation that fraud claims relating to foreclosure be dismissed on basis of Rooker-Feldman); Naylor, 2016 WL 55292, at *7 (same).
In addition, the claims fail on the merits. Plaintiff does not allege specific information supporting her general allegations of fraud, as is required. She also fails to identify any conduct that is specific to one defendant versus any of the others. These vague, conclusory, and unparticularized allegations cannot support the assertion of a fraud claim. Biggers v. Wells Fargo Bank, N.A., No. 3:16-CV-431-JAG, 2017 WL 465855, at *3 (E.D. Va. 3 Feb. 2017), aff'd sub nom. Biggers v. Wells Fargo Bank Nat'l Ass'n, 690 F. App'x 816 (4th Cir. 2017) (dismissing plaintiff's fraud in the concealment and in the inducement claims "most notably because [plaintiff] fails to allege who made any fraudulent statements or when they were made"); English, 2017 WL 3475674, at *5 (dismissing fraud claims relating to loan and foreclosure proceedings where plaintiff failed "to plead particularized facts in support of his claims that the Defendants fraudulently concealed the fact of securitization or fraudulently induced him to enter into the Loan" and referred "to the Defendants collectively throughout the Complaint, making it impossible to discern which Defendant may be liable for which omission or misrepresentation.").
For all of these reasons, it will be recommended that the seventh and eighth causes of action in plaintiff's complaint be dismissed.
H. Intentional Infliction of Emotional Distress (Ninth Cause of Action) (Compl. ¶¶ 120-30)
In her ninth cause of action, plaintiff alleges that defendants' actions, which included attempted breaking and entering into the property, threatened her with loss of life and the property without any legal right or privilege and constituted reckless and outrageous conduct. Compl. ¶ 121-22. She claims that the conduct was undertaken in bad faith and with the specific intention of inflicting emotional distress upon plaintiff. Id. ¶¶ 125, 126.
Intentional infliction of emotional distress "claims require a showing of conduct 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Steele v. Capital One Home Loans, LLC, No. 3:13-CV-704-RJC-DSC, 2014 WL 3748928, at *4 (W.D.N.C. 30 July 2014) (quoting Guthrie v. Conroy, 152 N.C. App. 15, 22, 567 S.E.2d 403, 408-09 (2002)), aff'd, 594 F. App'x 215 (4th Cir. 2015).
As an initial matter, the court is without jurisdiction to resolve plaintiff's intentional infliction of emotional distress claim on the merits. The claim arises from and flows out of the foreclosure proceedings and is more properly challenged in the state forum. A resolution of this claim in plaintiff's favor would implicate the Rooker-Feldman and Younger doctrines. Walker, 2016 WL 3746577, at *4 (making subsequently adopted recommendation that intentional infliction of emotional distress claim relating to foreclosure be dismissed on basis of Rooker-Feldman); Naylor, 2016 WL 55292, at *7 (same).
Further, the claim fails on the merits. Here, at most, plaintiff alleges that defendants are carrying out an attempt to foreclose on the property. This does not amount to conduct which could be considered outrageous, extreme, or intolerable. Biggers, 2017 WL 465855, at *3 ("[C]arrying out a legal remedy is not the kind of "severe and outrageous" conduct which supports an [intentional infliction of emotional distress] claim."). Nor has plaintiff identified what conduct is attributable to which defendant.
It will therefore be recommended that the ninth cause of action in plaintiff's complaint be dismissed.
I. Slander of Title (Tenth Cause of Action) (Compl. ¶¶ 131-41)
In the tenth cause of action, plaintiff alleges that all defendants disparaged her exclusive valid title to the property through the preparing, posting, publicizing, and recording of the notice of default, notice of trustee's sale, trustee's deed, and other documents. Compl. ¶ 132. She further alleges that defendants' recording of the assignment of deed of trust was a communication to a third party of a false statement derogatory of her title made with malice causing special damages. Id. ¶ 136. Plaintiff alleges that the defendants' fraudulent and malicious publication of these documents has created a cloud on the title to the property. Id. ¶¶ 138, 141. "Slander of title occurs when an individual maliciously makes false statements about the title of another's property, thus causing special damages." Town of Nags Head v. Toloczko, 863 F. Supp. 2d 516, 535 (E.D.N.C. 2012), rev'd on other grounds, 728 F.3d 391 (4th Cir. 2013).
As with her similar claims, the court is without jurisdiction to resolve plaintiff's slander of title claim on the merits. The claim arises from and flows out of the foreclosure proceedings and is more properly challenged in the state forum. A resolution of this claim in plaintiff's favor would implicate the Rooker-Feldman and Younger doctrines. Walker, 2016 WL 3746577, at *4 (making subsequently adopted recommendation that slander of title claim relating to foreclosure be dismissed on basis of Rooker-Feldman); Naylor, 2016 WL 55292, at *7 (same). It will therefore be recommended that the tenth cause of action in plaintiff's complaint be dismissed.
J. Quiet Title (Eleventh Cause of Action) (Compl. ¶¶ 142-49)
In her claim for quiet title, plaintiff contends that defendants are without any legal rights to the property and that any claims they assert to any interest in the property constitute a cloud on her title to the property. Compl. ¶¶ 145, 146. She asks that all defendants be permanently enjoined from claiming any adverse claim to her title to the property. Id. ¶ 148.
As with her similar claims, the court is without jurisdiction to resolve plaintiff's quiet title claim on the merits. The claim arises from and flows out of the foreclosure proceedings and is more properly challenged in the state forum. A resolution of this claim in plaintiff's favor would implicate the Rooker-Feldman and Younger doctrines. Walker, 2016 WL 3746577, at *4 (making subsequently adopted recommendation that quiet title claim relating to foreclosure be dismissed on basis of Rooker-Feldman); Naylor, 2016 WL 55292, at *7 (same). It will accordingly be recommended that the eleventh cause of action in plaintiff's complaint be dismissed.
K. Rescission (Twelfth Cause of Action) (Compl. ¶¶ 150-54)
In her twelfth cause of action, plaintiff claims that she is entitled to rescind the loan and all accompanying loan documents for all of the defendants' violations of law. Compl. ¶¶ 151-52.
Rescission is an equitable contract remedy and to the extent this claim arises from and flows out of the foreclosure proceedings, the court is without jurisdiction to resolve this request for relief. See Dean v. Dean, No. 318-CV-213-FDW-DLH, 2018 WL 4494990, at *3 (W.D.N.C. 13 Feb. 2015) (holding that rescission is an equitable remedy rather than a stand-alone claim). A resolution of this claim in plaintiff's favor would implicate the Rooker-Feldman and Younger doctrines. Walker, 2016 WL 3746577, at *4 (making subsequently adopted recommendation that rescission claim relating to foreclosure be dismissed on basis of Rooker-Feldman); Naylor, 2016 WL 55292, at *7 (same). Moreover, to the extent that plaintiff's request for a remedy of rescission arises from the allegations contained her TILA claim, as set forth in more detail below, her request is duplicative of and subsumed by the TILA claim.
For all of these reasons, it will be recommended that the twelfth cause of action in plaintiff's complaint be dismissed.
L. Declaratory Relief (Thirteenth Cause of Action) (Compl. ¶¶ 155-58)
In the thirteenth cause of action, plaintiff seeks a judicial determination of the rights, obligations, and interests of the parties regarding the property. Compl. ¶ 156. She seeks a determination that she is the equitable owner of the property and that defendants have no interest in the property, and an injunction barring defendants from asserting any such interest. Id. ¶¶ 157-58.
As set forth above, the court is without jurisdiction to resolve plaintiff's declaratory relief claim on the merits. The claim arises from and flows out of the foreclosure proceedings and is more properly challenged in the state forum. A resolution of this claim in plaintiff's favor would implicate the Rooker-Feldman and Younger doctrines. It will therefore be recommended that the thirteenth cause of action be dismissed.
M. TILA (Fifth Cause of Action) (Compl. ¶¶ 91-97)
Plaintiff asserts her TILA claim against all defendants for failure to provide her with accurate and necessary disclosures as required under TILA. Compl. ¶ 92. She claims that any applicable statutes of limitations were tolled by defendants' failure to provide the required disclosures. Id. ¶ 93.
"TILA governs the terms and conditions of consumer credit by, inter alia, requiring lenders to disclose certain details about loans fees and costs." Stephens, 2017 WL 384315, at *3. Liability pursuant to TILA is limited to "creditors" and their "assignees." Id.; 15 U.S.C.A. § 1641 ("Except as otherwise specifically provided in this subchapter, any civil action for a violation of this subchapter or proceeding under section 1607 of this title which may be brought against a creditor may be maintained against any assignee of such creditor only if the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement, except where the assignment was involuntary."); Ward v. Branch Banking & Tr. Co., No. CIV.A. ELH-13-01968, 2014 WL 2707768, at *10 (D. Md. 13 June 2014) ("Thus, only creditors and their assignees—and not mere servicers lacking ownership interest in the loan—may be held liable under the TILA."). Under TILA, for residential mortgage transactions, "certain disclosures must be made before credit is extended or the transaction consummated" which "include a good faith estimate of the charges that borrowers are likely to incur in connection with the settlement of their mortgage," as well as a "statement of the consumer's right to obtain, upon a written request, a written itemization of the amount financed." Stephens v. Bank of Am. Home Loans, Inc., No. 5:16-CV-660-BR, 2017 WL 4322816, at *3 (E.D.N.C. 28 Sept. 2017) (citing 15 U.S.C. § 1638(a)(2)(B)). "TILA also provides that the borrower may remedy a creditor's failure to make required disclosures by seeking rescission of the loan, money damages, or both." Reedy v. Bank of Wells Fargo, No. 7:17-CV-00238, 2018 WL 1177357, at *3 (W.D. Va. 5 Mar. 2018).
Unlike most of plaintiff's other claims, her TILA claim arises independently of any foreclosure proceedings and does not flow from those matters. See Naylor, 2016 WL 55292, at *5 ("Plaintiff's claims for monetary damages under RESPA and TILA/HOEPA, however, are independent from and not inextricably intertwined with the state court's judgment in the foreclosure proceedings. These claims do not seek to relitigate the foreclosure proceedings but rather seek civil damages for Defendants' alleged failure to comply with the federal statutes at the time of the origination of the underlying Note."). Giving plaintiff's allegations a liberal construction, she has alleged that certain defendants are creditors or assignees of her loan, enough to plausibly assert violations of TILA against those defendants, and that violations of TILA have occurred. See Ward, 2014 WL 2707768, at *10 (allowing pro se plaintiff's TILA claim to proceed).
As a result, it will be recommended that plaintiff's fifth cause of action proceed against the entities identified in the complaint as creditors and their assignees—namely, BBT, Morgan Stanley Mortgage Capital, FV-I, Morgan Stanley Mortgage Capital Holdings, U.S. Bank Trust, and Igloo Trust. It will be recommended, however, that the TILA claim against the remaining defendants be dismissed for failure to state a claim against them.
TILA does impose statute of limitations provisions which may impact plaintiff's claims, but for purposes of the instant analysis, the court will accept as true plaintiff's allegation that any applicable statutes of limitations are subject to tolling provisions. McClain v. Wells Fargo Bank, N.A., No. CV TDC-17-1094, 2018 WL 1271231, at *5 (D. Md. 8 Mar. 2018) ("TILA has either a one- or three-year statute of limitations, depending on the provision of TILA allegedly violated."), aff'd, 738 F. App'x 797 (4th Cir. 2018).
IV. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED as follows:
1. The TRO motion be DENIED;
2. The first through fourth causes of action and sixth through fourteenth causes of action be DISMISSED without prejudice in their entirety;
See, e.g., S. Walk at Broadlands Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) (holding that a dismissal for lack of subject matter jurisdiction "must be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits"); Carter v. Norfolk Cmty. Hosp. Ass'n, 761 F.2d 970, 974 (4th Cir. 1985) ("A district court's dismissal under Rule 12 (b)(6) is, of course, with prejudice unless it specifically orders dismissal without prejudice.").
3. The fifth cause of action be permitted to proceed as to BBT, Morgan Stanley Mortgage Capital, FV-I, Morgan Stanley Mortgage Capital Holdings, U.S. Bank Trust, and Igloo Trust, but be DISMISSED without prejudice as to the remaining defendants;
4. The Clerk be DIRECTED to file a copy of plaintiff's signed proposed complaint at D.E. 1-1 as the complaint in this case; and
5. Plaintiff be ORDERED to prepare complete summonses for the defendants identified in paragraph 3 above (i.e., BBT, Morgan Stanley Mortgage Capital, FV-I, Morgan Stanley Mortgage Capital Holdings, U.S. Bank Trust, and Igloo Trust) and file them with the court, which finds that the proposed summons at D.E. 1-5 is deficient; upon their submission, the Clerk be directed to issue the summonses prepared by plaintiff; and the U.S. Marshal be directed to serve defendants by delivering each summons to the addressee listed in the summons along with a copy of the complaint, pursuant to Fed. R. Civ. P. 4(i)(2).
IT IS DIRECTED that a copy of this Memorandum and Recommendation and Associated Orders be served on plaintiff or, if represented, her counsel. Plaintiff shall have until 23 January 2019 to file written objections to the Memorandum and Recommendation. The presiding District Judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If a party does not file written objections by the foregoing deadline, 23 January 2019, plaintiff will be giving up the right to review of the Memorandum and Recommendation by the presiding District Judge as described above, and the presiding District Judge may enter an order or judgment based on the Memorandum and Recommendation without such review, subject to the District Judge's consideration of any separate memorandum plaintiff files on the issue of entry of a pre-filing injunction. In addition, plaintiff's failure to file written objections by the foregoing deadline will bar plaintiff from appealing to the Court of Appeals from an order or judgment of the presiding District Judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
SO ORDERED, this 9th day of January 2019.
/s/_________
James E. Gates
United States Magistrate Judge