Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Carter v. America Note Servicing

United States District Court, Western District of Virginia, Harrisonburg Division

May 15, 2014

IRENE CARTER, Plaintiff,
v.
AMERICA NOTE SERVICING, et aL, Defendants.

MEMORANDUM OPINION

Michael F. Urbanski United States District Judge

This matter is before the court on the motions to dismiss of defendants ALG Trustee, LLC ("ALG") and Adantic Law Group, LLC ("Adantic Law"). Dkt. Nos. 3 & 4, respectively. These motions are without merit and will accordingly be denied.

I.

In this action, plaintiff Irene Carter ("Carter") seeks a declaratory judgment in her favor and also alleges a violation of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. In her complaint she alleges the following facts relevant to the pending motions: on February 6, 2003, Carter took out a credit line Deed of Trust with Bank of America (a non-party). The 2003 Deed of Trust gave Bank of America a security interest in Carter's home. Carter refinanced the 2003 Deed of Trust with a second Deed of Trust between her and Bank of America on September 14, 2004. Carter has attached copies of both Deeds of Trust as exhibits to her complaint, as well as the settlement statement memorializing the refinancing agreement.

After the 2004 refinancing, Bank of America failed to close the account associated with the 2003 Deed of Trust, despite die fact it had been paid off and the security interest it created extinguished. On December 23, 2005, Bank of America assigned the 2003 Deed of Trust to United Guaranty Residential Insurance Company of North Carolina ("UGRI") (another non-party). UGRI subsequendy assigned the Deed of Trust to defendant America Note Servicing.

On May 1, 2013, America Note Servicing executed a Substitution of Trustee for the 2003 Deed of Trust which appointed defendant ALG, as Substitute Trustee. Pursuant to the authority supposedly conferred by the Substitution of Trustee, defendants ALG and Atlantic Law scheduled a foreclosure sale of Carter's home for Tuesday, June 11, 2013. Carter contacted Atlantic Law through her counsel on four different occasions in late May and early June of 2013 to inform them that security interest in Carter's home had been extinguished via the 2004 refinancing, but received no indication that the foreclosure sale would be cancelled. The sale was cancelled when Carter filed the present action in state court.

As to procedural history, Carter's complaint was removed by the defendants to federal court on February 11, 2014. Dkt. No. 1. The pending motions to dismiss were filed on February 17, 2014. Dkt. Nos. 3 & 4. Plaintiff responded to the motions on March 10, 2014. Dkt. No. 13. Defendants did not file reply briefs within the time allotted and the parties have waived oral argument. As such, the matter is now ripe for adjudication.

II.

Federal Rule of Civil Procedure 12(b)(6) permits a party to move for dismissal based upon a "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). The standard on such a motion is now well-established. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal. 556 U.S. 662, 678 (2009) (quoting Bell Ad. Corp. v. Twombly. 550 U.S. 544, 570 (2007)). A plaintiffs well-pled factual allegations, while assumed to be true, Ibarra v. United States. 120 F.3d 472, 474 (4th Cir. 1997), "must be enough to raise a right to relief above the speculative level." Twombly. 550 U.S. at 570. "[Additionally], the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. At end, the complaint must contain sufficient facts 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. Id. at 679; Fed.R.Civ.P. 8(a).

III.

In Count I of her complaint, Carter seeks a declaratory judgment that defendants do not have a security interest in her home. The Federal Declaratory Judgment Act provides, in relevant part, as follows:

In a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.

28 U.S.C. § 2201(a). "When determining whether an actual controversy exists in a declaratory judgment action, the Court must ask 'whether the facts alleged, under all the circumstances, show that there is a substantial controversy between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of declaratory judgment.'" Shore Bank v. Harvard. 934 F.Supp.2d 827, 837 (E.D. Va. 2013) (quoting Medlmmune. Inc. v. Genentech. Inc.. 549 U.S. 118, 127 (2007)); see also Artful Color. Inc. v. Hale. 928 F.Supp.2d 859, 861 (E.D. N.C. 2013) (quoting Maryland Cas. Co. v. Pacific Coal & Oil Co.. 312 U.S. 270, 272 (1941)) (same).

Defendant Atlantic Law argues that it should be dismissed because it "has not been alleged to be a putative party to the 2003 [Deed of Trust]" and is therefore "not a necessary party under applicable law to Count I." Mem. of Law in Supp. of Def. Atlantic Group, LLC's Mot. to Dismiss, Dkt. No. 4-1, at 5. Atlantic Law cites case law regarding the nature of a "necessary party" under Federal Rule of Civil Procedure 19 in support of its motion. Whether or not Atlantic Law is a necessary party under Rule 19, however, is not the relevant question.[1] Pursuant to Rule 12(b)(6), the question before the court is whether Carter has stated a claim under the Federal Declaratory Judgment Act upon which relief can be granted. As such, she must adequately allege "a case of actual controversy, " which requires a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Shore Bank. 934 F.Supp.2d at 837. Here, Carter has alleged that Atlantic Law, along with ALG, scheduled a foreclosure sale of Carter's home for Tuesday, June 11, 2013, and that, despite communications between Carter's counsel and Atlantic Law, the foreclosure sale was cancelled only after the present action was filed. These allegations plainly satisfy Carter's obligation to adequately allege a substantial controversy of sufficient immediacy and reality between herself and Atlantic Law at the motion to dismiss stage. C£ Young v. Wachovia Mortgage Co.. No. 11-CV-01963-CMA, 2011 WL 6934110, at ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.