United States District Court, D. South Carolina, Florence Division
E. Rogers, III United States Magistrate Judge
who is proceeding pro se, originally filed this action in
state court. Defendants removed it to this court pursuant to
28 U.S.C. § 1331 based upon the presence of federal
questions under the Real Estate Settlement Procedures Act
(RESPA) 12 U.S.C. §§ 2601 et seq., and the
Truth in Lending Act (TILA) 15 U.S.C. §§ 1601,
et seq. This action arises out of Plaintiff's
attempts to modify her mortgage loan and avoid foreclosure of
before the court are Plaintiff's Motion to Continue Case
(Document # 21), Motion to Vacate Summary Eviction Order
(Document # 27), and Motion to Appoint Counsel (Document #
30) and Defendant LSF9 Master Participation Trust through its
servicer Caliber Home Loans, Inc.'s Motion to Strike
(Document # 24). All pretrial proceedings in this case were
referred to the undersigned pursuant to the provisions of 28
U.S.C. § 636(b)(1)(A) and (B) and Local Rule
September and October of 2016, Defendants filed Motions to
Dismiss (Documents # 13, 18). Because she is proceeding
pro se, Plaintiff was warned pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
that a failure to respond to Defendants' motions could
result in the motions being granted, resulting in dismissal
of her claims. Plaintiff has not filed responses to these
motions. However, on November 8, 2016, Plaintiff filed a
Motion to Continue Case (Document # 21), requesting that the
court “continue her case 4:16-3199 until January
calendar in order for me to have my eye and back surgeries
and meet with my attorneys.” Motion to Continue
(Document # 21) p. 2. She indicated that she had been working
with her attorneys (who have not made an appearance in this
case) to complete a Making Home Affordable Loan. This motion
is granted. Plaintiff shall have fourteen days from the date
of this order to file a response to Defendants' motions.
January 26, 2017, Plaintiff filed a Motion to Vacate Summary
Eviction Order, or in the Alternative, Motion to Stay
(Document # 27), in which she asks the court to vacate an
eviction order dated January 18, 2017, entered by an
unidentified court or stay the eviction order until the
present case is settled. The Rooker-Feldman doctrine
prohibits lower federal courts from reviewing the findings or
rulings of state court decisions. District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 476, 103
S.Ct. 1303, 75 L.Ed.2d 206 (1983); Friedman's, Inc.
v. Dunlap, 290 F.3d 191 (4th Cir.2002). Further, the
Anti-Injunction Act provides that “[a] court of the
United States may not grant an injunction to stay proceedings
in a State court except as expressly authorized by Act of
Congress, or where necessary in aid of its jurisdiction, or
to protect or effectuate its judgments.” 22 U.S.C.
§ 2283. As such, this court lacks jurisdiction to
provide the relief sought by Plaintiff in this motion.
Therefore, the motion is denied.
February 27, 2017, Plaintiff filed a Motion to Appoint
Counsel (Document # 30). She states that she is on disability
income and is the sole caretaker for her
eighty-seven year old mother. Plaintiff asserts that she has
interviewed “no less than three attorneys” who
have all quoted retainer fees of ten thousand dollars or
more. For these reasons, she seeks appointment of counsel.
There is no constitutional right to appointment of counsel in
civil cases, and the decision whether to appoint counsel is
within the discretion of the Court. 28 U.S.C. § 1915(d);
Smith v. Blackledge, 451 F.2d 1201 (4th Cir. 1971).
However, the appointment “should be allowed only in
exceptional cases.” Cook v. Bounds, 518 F.2d
779, 780 (4th Cir. 1975). Plaintiff has failed to point to
exceptional circumstances warranting appointment of counsel
in this case. Therefore, her motion is denied.
LSF9 Master Participation Trust through its servicer Caliber
Home Loans, Inc. filed a Motion to Strike (Document # 24)
certain portions of Plaintiff's Motion to Continue.
Specifically, this Defendant seeks to strike copies of a
settlement offer (Document # 21-1 pp. 1, 2, 19) made by way
of counsel for Defendant to Plaintiff. Defendant argues that
settlement negotiations are inadmissible pursuant to Rule 408
of the Federal Rules of Evidence and, thus, should be
stricken. The court did not consider these portions of
Plaintiff's motion to continue in ruling on the motion.
Defendant also states that these settlement offers should not
be a part of the public record. However, Rule 408 prohibits
the use of evidence of settlement negotiations “either
to prove or disprove the validity or amount of a disputed
claim or to impeach by a prior inconsistent statement or a
contradiction.” It makes no mention regarding the
public nature of such evidence, and further provides that a
court may admit such evidence for other purposes. Therefore,
Defendant's motion is denied.
reasons discussed above, Plaintiff's Motion to Continue
Case (Document # 21) is GRANTED and Plaintiff shall have
fourteen days from the date of this order to file a response
to Defendants' Motions to Dismiss (Documents # 13, 18).
Plaintiff is reminded that failure to respond to these
motions could result in dismissal of her case. See
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
Plaintiff's Motion to Vacate Summary Eviction Order
(Document # 27) is DENIED, Plaintiff's Motion to Appoint
Counsel (Document # 30) is DENIED, and Defendant LSF9 Master
Participation Trust's Motion to Strike (Document # 24) is