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Luther v. Wells Fargo Bank, N.A.

United States District Court, W.D. Virginia, Danville Division

April 18, 2014

JAMES T. LUTHER, Plaintiff,


ROBERT S. BALLOU, Magistrate Judge.

Plaintiff James T. Luther ("Luther") filed this action pro se against Defendants Wells Fargo Bank, N.A. ("Wells Fargo") and Atlantic Law Group, LLC ("ALG"), asserting various claims arising out of the attempted foreclosure of his property. Defendants filed a Motion to Dismiss this action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Luther filed a response to the motion to dismiss, and moved for summary judgment on all counts of the Complaint. (Dkt. No. 17).

The Court referred these dispositive motions to me for proposed findings of fact and a recommended disposition pursuant to 28 U.S.C. ยง 636(b)(1)(B). I find that oral argument will not aid the court with regard to the pending motions, which have been fully briefed and are ripe for decision. Having reviewed the relevant documents, case law, and statutory authority, I conclude that Luther's Complaint fails to plead sufficient facts to support his claims, and RECOMMEND that the Court GRANT Defendants' Motion to Dismiss pursuant to Rule 12(b)(6) (Dkt. No. 7), DENY Luther's Motion for Summary Judgment (Dkt. No. 17), and allow Luther leave to file an amended complaint within ten (10) days of the date it acts upon this Report and Recommendation.


This is the second case filed by Luther against Wells Fargo in which he seeks to enjoin the foreclosure of his property located at 2194 Dogwood Lane, Fieldale, Virginia (the "Fieldale property").[1] See Case No. 4:11cv0057. Luther's previous action alleged that Wells Fargo's attempt to foreclose on his property was fraudulent and violated the Federal Truth in Lending Act and the Federal Real Estate Settlement and Procedures Act. After allowing Luther to amend his complaint, the Court dismissed the action with prejudice for failure to state a claim under Rule 12(b)(6).

The current action arises from Wells Fargo's renewed attempt to foreclose on the Fieldale property based upon a promissory note ("the note")[2] that Luther executed in favor of Wachovia Bank, N.A. (a predecessor in interest to Wells Fargo) on February 23, 2007, and which is secured by a deed of trust on the Fieldale property.[3] Dkt. Nos. 8-1, 8-2. Wells Fargo instituted a foreclosure action on the secured property because of Luther's apparent default on the note. Luther filed this suit alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), wrongful foreclosure, fraud, and mail fraud and seeking "a release of any liens and a quieting of the title relating to his property, " along with monetary damages, statutory relief, court costs and fees. Dkt. No. 1. Luther also filed a Motion for Temporary Restraining Order to prevent the foreclosure of his property. On January 6, 2014, Defendants notified the Court that the foreclosure of the Fieldale property was placed on hold during the pendency of this litigation. Based upon that representation, the Court denied Luther's motion for a temporary restraining order. Dkt. No. 16.


The factual portion of Luther's Complaint summarizes a series of correspondence between Wells Fargo and Luther, beginning with a letter from Wells Fargo dated October 4, 2013, notifying Luther that his mortgage was referred to foreclosure. Dkt. No. 1-1. Luther responded to the notice by letter dated October 15, 2013, disputing the validity of the debt and asking Wells Fargo to release its title and claims to his property and cease further communication. Dkt. No. 1-2. On October 29, 2013, Wells Fargo responded to Luther's letter, attaching a copy of the note and security instrument, as well as a copy of this Court's Order in the 2011 case denying Luther the relief sought in that action and allowing Wells Fargo to move forward with foreclosure. Wells Fargo stated that an order ceasing communication was placed on Luther's account, but that the liens would not be released until the account deficient balance is paid in full or other remedies are executed to offset the balance owed. Dkt. No. 1-4.

On November 5, 2014, Luther wrote to Wells Fargo disputing the account numbers referenced in Wells Fargo's previous letters, asserting violations of the FDCPA, and threatening suit if the liens were not released. Dkt. No. 1-5. Wells Fargo responded on December 5, 2013, addressing the alleged discrepancies in the account numbers associated with the Fieldale property and validating the debt owed. Wells Fargo also referred Luther to ALG for questions related to the foreclosure. Dkt. No. 1-7. On December 10, 2013, Luther sent Wells Fargo a "Notice of Impending Legal Action" asserting the illegality of Wells Fargo's attempted foreclosure. Dkt. No. 1-8. A few days later, Wells Fargo published in the Martinsville Bulletin a notice of Trustee's Sale of the Fieldale property scheduled for January 7, 2014, by Substitute Trustee ALG Trustee, LLC, C/O Atlantic Law Group, LLC. Dkt. No. 1-9.[4] On December 17, 2013, Luther initiated this action against Defendants to stop the impending foreclosure on the Fieldale property. Luther asserts that Defendants have violated the FDCPA and that their actions constitute fraud and mail fraud.


The purpose of a Rule 12(b)(6) motion to dismiss is to test the sufficiency of the plaintiff's complaint. See Edwards v. City of Goldsboro , 178 F.3d 231, 243 (4th Cir. 1999). In considering a Rule 12(b)(6) motion, a court must accept all factual allegations in the complaint as true and must draw all reasonable inferences in favor of the plaintiff. Erickson v. Pardus , 551 U.S. 89, 94 (2007). Legal conclusions in the guise of factual allegations, however, are not entitled to a presumption of truth. Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Moreover, a court "need not accept the legal conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. Pshp. , 213 F.3d 175, 180 (4th Cir. 2000).

To survive a Rule 12(b)(6) motion to dismiss, the claimant's "[f]actual allegations must be enough to raise a right to relief above the speculative level, " and the pleading must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 570 (2007) (citation omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 678. Plaintiffs must offer enough facts to "nudge[] their claims across the line from conceivable to plausible, " Twombly , 550 U.S. at 570, and from which the court, calling upon "its judicial experience and common sense, " can conclude that the pleader has "shown" that he is entitled to relief. Fed.R.Civ.P. 8(a); Iqbal , 556 U.S. at 679.

Here, Luther is proceeding pro se, thus his pleadings must be "liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson , 551 U.S. at 93 (internal citation omitted). However, the court is not required to accept a pro se plaintiffs contentions as true, Denton v. Hernandez , 504 U.S. 25, 32 (1992), and cannot ignore a clear failure to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs. , 901 F.2d 387, 391 (4th Cir. 1990) ("The special judicial solicitude' with which a district court ...

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