United States District Court, W.D. Virginia, Harrisonburg Division
GLEN E. CONRAD CHIEF UNITED STATES DISTRICT JUDGE
Marsha Lambert Maines, proceeding pro se and in forma
pauperis, filed this action against Ronald J. Guillot, Jr.;
Kimberly E. Hartin; Johnie R. Muncy; American Mortgage
Investment Partners ("AMIP"); and Mortgage
Electronic Registration Systems, Inc. ("MERS").
Guillot, Muncy, AMIP, and MERS have moved to dismiss the
complaint for failure to state a claim, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. For the
reasons set forth below, the motions will be granted and the
complaint will be dismissed as to all
following facts are either set forth in the complaint,
supported by documents referenced or relied upon in the
complaint, or are matters of public record of which the court
is permitted to take judicial notice. See Phillips v.
Pitt County Mem. Hosp., 572 F.3d 176, 180 (4th Cir.
2009) ("In reviewing a Rule 12(b)(6) dismissal, we may
properly take judicial notice of matters of public record. We
may also 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")
(internal citations omitted).
September 12, 2005, the plaintiff obtained a loan from
Countrywide Home Loans, Inc. ("Countrywide") for
property located at 102 Dinwiddie Court in Stephens City,
Virginia. The loan was secured by a deed of trust on the
property in favor of MERS as beneficiary and nominee for
Countrywide. In 2010, MERS assigned the deed of trust to BAC
Home Loans Servicing, LP. The deed of trust was later
assigned to Wilmington Savings Fund Society, FSB, D/B/A
Christina Trust as Trustee of the Residential Credit
Opportunities Trust ("Wilmington").
6, 2015, the plaintiff filed a voluntary Chapter 13 petition
in the United States Bankruptcy Court for the Western
District of Virginia. On July 24, 2015, the bankruptcy case
was converted to one under Chapter 7. Thereafter, Wilmington
filed a motion for relief from the automatic stay imposed by
11 U.S.C. § 362. On October 13, 2015, the bankruptcy
court entered an order granting Wilmington's motion and
permitting "Wilmington and its successors and assigns to
proceed under state law as it pertains to the real property
located at 102 Dinwiddie Court, Stephens City, VA
22655-5901." In re Maines. No. 15-60865 (Bankr.
W.D. Va. Oct. 13, 2015). The plaintiff moved to stay the
bankruptcy court's order pending appeal to this
court. The bankruptcy court denied the plaintiffs
motion, and the subject property was sold at a foreclosure
sale on November 24, 2015.
February 1, 2016, the plaintiff filed the instant action
against Guillot, Hartin, Muncy, AMIP, and MERS. According to
the complaint, Guillot, Hartin, and Muncy are attorneys
employed by the law firm of Samuel I. White, P.C., which
served in the capacity as substitute trustee for the
foreclosure proceedings. The defendants indicate that AMIP is
the servicing agent for the underlying loan.
the plaintiffs allegations are difficult to follow, she
appears to assert the following claims in the instant action:
(1) that the defendants unlawfully foreclosed on the property
after receiving notice of her intent to rescind the loan
pursuant to the Truth in Lending Act; (2) that the defendants
violated the Virginia Consumer Protection Act; (3) that the
defendants violated the Fair Debt Collection Practices Act;
and (4) that the defendants engaged in identity theft. The
plaintiff seeks to recover statutory damages, actual damages,
and attorney's fees and litigation costs.
Muncy, AMIP, and MERS have moved to dismiss the complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The court notified the plaintiff of the
defendants' motions as required by Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975). The motions are
now ripe for decision.
12(b)(6) of the Federal Rules of Civil Procedure permits a
party to move for dismissal of a complaint for failure to
state a claim upon which relief can be granted. To survive
dismissal for failure to state a claim, a plaintiff must
establish "facial plausibility" by pleading
"factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v.. Iqbal. 556
U.S. 662, 678 (2009). "At bottom, a plaintiff must
'nudge [her] claims across the line from conceivable to
plausible' to resist dismissal." Wag More Dogs.
LLC v. Cozart. 680 F.3d 359, 364-65 (4th Cir. 2012)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). While a pro se litigant's pleadings are
liberally construed, Gordon v. Leeke, 574 F.2d 1147,
1151 (4th Cir. 1978), a pro se complaint must still contain
sufficient facts "to raise a right to relief above the
speculative level" and "state a claim to relief
that is plausible on its face." Twombly. 550
U.S. at 555, 570.
28 U.S.C. § 1915(e), which applies to cases filed iri
forma pauperis, the court must dismiss a case "at any
time" if the court determines that the complaint
"fails to state a claim on which relief may be
granted." 28 U.S.C. § 1915(e)(2)(B)(ii). The
standards for reviewing a complaint for dismissal under
§ 1915(e)(2)(B)(ii) are the same as those which apply
when a defendant moves for dismissal under Rule 12(b)(6).
De'Lonta v. Angelone, 330 F.3d 630, 633 (4th