United States District Court, E.D. Virginia, Alexandria Division
CLOTILDE C. JIMENEZ, Plaintiff,
WELLS FARGO BANK, N.A., ET AL., Defendants.
M. HILTON UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendants Wells Fargo Bank,
N.A. and Select Portfolio Servicing Inc.'s Motion to
Clotilde Jimenez's Complaint is construed to allege that
Plaintiff rescinded his subject mortgage loan under the
Truth-in-Lending Act, 15 U.S.C. § 1601, et seq.
("TILA"), more than eight years after the loan
closed, and that Defendants ignored his rescission by
continuing to enforce their rights under the loan documents.
Plaintiff claims he was entitled to TILA rescission because
he recently learned that various unidentified financial
institutions were somehow manipulating the United States
currency system and the London Inter Bank Offer Rate
("LIBOR"). Plaintiff alleges neither how this
scheme was carried out nor what role, if any, the Defendants
played. Based on Defendant's refusal to honor
Plaintiff's rescission notice, Plaintiff asserts three
claims: (1) Larceny of Real Estate and Filing Fraudulent
Mortgage Documents; (2) Remove Cloud of Title/Quiet Title;
and (3) Request for Permanent Injunction.
February 28, 2007, Plaintiff executed an Adjustable Rate Note
("Note") for $348, 000 (the "Loan") in
favor of Bear Stearns Residential Mortgage Corporation
("Bear Stearns"). Plaintiff secured the Note by
executing a deed of trust ("Deed of Trust")
concerning certain real property located at 117 Glacier Way,
Stafford, VA (the "Property"). The Note was later
endorsed in blank and securitized. Wells Fargo is the trustee
of the trust that holds the Note, and the assignee for the
Deed of Trust. Select Portfolio Servicing Inc.
("SPS") is the servicer of the loan.
November 5, 2014, Plaintiff filed a Chapter 7 Bankruptcy in
the United States Bankruptcy Court for the Eastern District
of Virginia. In his bankruptcy schedules, Plaintiff stated
that the Property was worth $311, 017.00 and that Loan's
secured lien exceeded the Property's value. Plaintiff did
not dispute that the Loan was secured by the Property.
Plaintiff also represented that he had no claims concerning
November 26, 2014, Wells Fargo moved for relief from the
automatic stay. The Bankruptcy Court granted Wells
[T]he automatic stay imposed by 11 U.S.C Section 362 is
modified to permit the movant and its successors and assigns
to enforce the lien of its deed of trust as it pertains to
the real property located at 117 Glacier Way, Stafford, VA .
. . .
appealed the Order Granting Relief from Stay based, in part,
on the grounds that Defendants violated the Crime
Victims' Rights Act, 18 U.S.C. 3771; committed mortgage
fraud; and committed federal ''Misprision of
Felony." The District Court denied Plaintiff's
appeal because Plaintiff offered "no grounds to show
that the Bankruptcy's decision was clearly erroneous or
contrary to law" and because the Plaintiff received a
discharge while the appeal was pending.
Plaintiff s schedules stated that the Property was fully
encumbered by secured claims; that Plaintiff did not dispute
those secured claims; and that Plaintiff had no causes of
action concerning the Loan, the Trustee abandoned the
Property. Plaintiff received a discharge on February 18,
2015. His case was closed on April 3, 2014.
September 17, 2015, Plaintiff filed a document captioned,
"Rescission of Mortgage Loan Due to 'LIBOR'
Banking/Securities Fraud" ("Rescission
Notice"). Plaintiff appears to invoke TILA to rescind
the Note and Deed of Trust. The Bankruptcy Court refused to
act on Plaintiff's Rescission Notice because his
bankruptcy case closed.
16, 2016, Plaintiff commenced this action in the Circuit
Court of Stafford County, Virginia. Lacking specific factual
allegations, the Complaint generally complains that various
law enforcement agencies should have arrested Defendants for
engaging in unspecified criminal conduct. To the extent
Plaintiff raises civil issues, it appears he alleges that
Defendants wronged him by enforcing the Loan's lien after
he filed his Rescission Notice in his bankruptcy case.
Plaintiff asserts three claims: Larceny of Real Estate and
Filing Fraudulent Mortgage Documents, Remove Cloud of
Title/Quiet Title, and Request for Permanent Injunction.
motion to dismiss for failure to state a claim under
Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of a
complaint. See, e.g., Edwards v. City
of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999);
District 28, United Mine Workers of Am., Inc. v. Wellmore
Coal Corp., 609 F.2d 1083, 1085-86 (4th Cir. 1979).
Generalized, unsupported assertions are insufficient to state
should dismiss a complaint if the plaintiff fails to proffer
"enough facts to state a claim to relief that is
plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A plaintiff's
"obligation to provide the 'grounds' of his
'entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Id. at 555. A
claim will lack "facial plausibility" unless the
plaintiff "plead[s] 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, 663 (2009). A complaint must
contain sufficient evidentiary facts to raise a plausible-as
opposed to merely conceivable-inference that the Plaintiff is
entitled to relief. Twombly, 550 U.S. at 570;
Iqbal, 556 U.S. at 680. Plaintiff must ...