United States District Court, D. South Carolina, Beaufort Division
Atiya S. Nelson and Jermaine Johnson, Plaintiffs,
US Bank Trust NA, as Trustee for LSF9 Master Participation Trust on behalf of LSF9 Master Participation Trust, Defendant.
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
matter is before the Court on the Report and Recommendation
(“R. & R.”) of the Magistrate Judge (Dkt. No.
25) recommending that the Court grant Defendant's motion
to dismiss (Dkt. No. 19). For the reasons set forth below,
this Court adopts the R. & R. as the order of the Court.
Defendant's motion to dismiss (Dkt. No. 19) is granted.
proceeding pro se, have filed this action seeking
monetary damages for Defendant's alleged violation of the
Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. §
1692, et seq., and the South Carolina Consumer
Protection Code, S. C. Code Ann. § 37-1-101, et
seq. Plaintiffs allege that the Defendant has attempted
to foreclose on the Plaintiffs' “intellectual
property” by attempting to “collect a disputed
debt prior to validation and verification” through the
use of “false representations.” (Dkt. No. 1 at
3.) Defendant has filed a motion to dismiss. (Dkt. No. 19.)
Rule 12(b)(6), a “complaint must be dismissed if it
does not allege ‘enough facts to state a claim to
relief that is plausible on its face.'”
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.
2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). On a motion to dismiss, this Court must
“take all of the factual allegations in the complaint
as true.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “However, while the court must draw all
reasonable inferences in favor of the plaintiff, it need not
accept legal conclusions, “unwarranted inferences,
unreasonable conclusions or arguments.” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d
250, 253 (4th Cir. 2009) (citing Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999);
Giarratano, 521 F.3d at 298). Although this matter
is before the Court on a Rule 12 motion to dismiss, this
Court may consider documents such as court filings, notes,
and mortgages in ruling on the motion.
Court liberally construes complaints filed by pro se
litigants to allow the development of a potentially
meritorious case. See Cruz v. Beto, 405 U.S. 319
(1972); Haines v. Kerner, 404 U.S. 519 (1972). As
Plaintiffs are proceeding pro se, their pleadings
are considered pursuant to this liberal standard. The
requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege
facts which set forth a viable federal claim, nor can the
Court assume the existence of a genuine issue of material
fact where none exists. Weller v. Dep't of Social
Services, 901 F.2d 387 (4th Cir. 1990).
Atiya S. Nelson owned property at 353 Riley Street in
Yemassee South Carolina. Nelson borrowed money that was
secured by a mortgage on the Riley Street property. (Dkt.
Nos. 19-2 (the Note), 19-3 (the Mortgage).) It is not clear
to the Court whether Plaintiff Johnson has any connection to
this property as he was not a signatory to the loan or
mortgage documents, and there is no indication that he was an
owner of the Riley Street property.
around August 7, 2015, Defendant commenced a foreclosure
action on the Mortgage based on non-payment of the Note.
(Dkt. No. 19-7.) Plaintiff Nelson contested the validity of
the debt, the Defendant's right to foreclose on her
property, and the foreclosure action itself in that state
court action. These proceedings resulted in an order of
foreclosure being entered, and the property was sold pursuant
to the foreclosure order. (Dkt. Nos. 19-8, 19-9, 19-10.)
Nelson filed a motion to set aside the foreclosure order
under Rule 60(b), SC Rules Civil Procedure, which was denied.
(Dkt. No. 19-11.) Defendant asserts, and Plaintiffs have not
disputed, that Nelson did not appeal the denial of her Rule
60(b) motion to set aside, and that the State Court
foreclosure action is now closed.
reasons thoroughly explained by the Magistrate Judge in the
R. & R., Plaintiffs' attempt to challenge the state
court's decision to grant Defendant a judgment of
foreclosure is barred by the doctrines of res
judicata and collateral estoppel. (Dkt. No. 25 at 4-5.)
Further, to the extent Plaintiffs are seeking review of the
judgment of the state court, this Court lacks subject matter
jurisdiction under the Rooker-Feldman Doctrine. (Dkt. No. 25
Court reviews de novo any part of the R. & R. to
which there has been proper objection. Fed.R.Civ.P. 72(b)(2).
Plaintiff Nelson's objections to the R. & R. are
difficult to follow, but she appears to argue that the
Defendant should not have been allowed to bring the
foreclosure action because the securitization of her mortgage
means “[t]he loan is no more” and “the
security is forever lost.” (Dkt. No. 30 at 2.)
Court has reviewed the objections and concluded that
Plaintiffs have not specifically objected to the
Magistrate's findings that their claims are barred by the
doctrines of res judicata and collateral estoppel or
that this Court lacks subject matter jurisdiction under the
Rooker-Feldman Doctrine. This Court's review of the