United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Merchant United States Magistrate Judge
above-captioned case has been removed from the Court of
Common Pleas for Berkeley County, South Carolina. As the
Plaintiff is pro se, under Local Civil Rule 73.02 DSC,
pretrial proceedings in this action have been referred to the
assigned United States Magistrate Judge.
se Plaintiff brought this action asserting various claims
related to the foreclosure of real property by the Defendants
and subsequent attempts to evict him from the property. On
November 9, 2017, the Defendants filed a motion to dismiss,
seeking dismissal of this case on numerous grounds. As the
Plaintiff is proceeding pro se, a Roseboro Order was
entered by the Court on November 13, 2014, advising Plaintiff
of the importance of a dispositive motion and of the need for
him to file an adequate response. Plaintiff was specifically
advised that if he failed to file a properly supported
response, the Defendants' motion may be granted, thereby
ending his case. However, notwithstanding the specific
warning and instructions as set forth in the Court's
Roseboro order, the Plaintiff has failed to respond
to the motion, or to contact the Court in any way. Therefore,
based on the foregoing, Plaintiff meets all of the criteria
for dismissal under Chandler Leasing Corp..
Lopez, 669 F.2d 919 (4th Cir.
1982). Accordingly, it is recommended that
this action I be dismissed for lack of prosecution. See
Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978);
Rule 41(b), Fed.R.Civ.P.; Ballard v. Carlson. 882
F.2d 93, 95 (4th Cir. 1989). cert, denied
sub nom. Ballard v. Volunteers of America. 493 U.S.
1084 (1990) [Magistrate Judge's prior explicit warning
that a recommendation of dismissal would result from
plaintiff failing to obey his order was proper grounds for
the district court to dismiss suit when plaintiff did not
comply despite warning].
if Plaintiff s case is not dismissed for failure to prosecute
and is instead considered on the merits, the Defendants are
still entitled to summary judgment in this case. First,
Plaintiffs failure to respond to the motion by itself may be
considered as a basis on which to grant the Defendants'
motion. Cf. Coker v. International Paper Co.. No.
08-1865, 2010 WL 1072643, at * 2["[A] plaintiff can
abandon claims by failing to address them in response to a
summary judgment motion."]; Jones v. Danek Medical.
Inc.. No. 96-3323, 1999 WL 1133272 at * 3 (D.S.C. Oct.
12, 1999)["The failure of a party to address an issue
raised in summary judgment may be considered a waiver or
abandonment of the relevant cause of action."].
Moreover, the Defendants have provided probative arguments
(discussed herein below) showing that they are entitled to
dismissal of this case, while Plaintiff has failed to provide
any support his allegations or to show why this case should
not be dismissed. Johnson v, Reno Police Chief. 718
F.Supp. 36.38 CD.Nd. 1989)[Even a pro se plaintiff may not
rely wholly on conclusory allegations, but rather must allege
facts which, if proven would entitle the plaintiff to relief
H: Harper v. United States. 423 F.Supp. 192,
196(D.S.C. 1976) ["[W] here the claims in a complaint
are insufficiently supported by factual allegations, these
claims may be properly dismissed by summary dismissal"].
Plaintiff is attempting through this court action to
relitigate his foreclosure case, which has already been
decided adversely to him, and to which Plaintiff took no
appeal. See Defendants' Exhibits C, D, E and
F. In addition to the foreclosure action,
in which Plaintiff was the Defendant, the instant case is the
second case Plaintiff has filed challenging the validity of
the note and mortgage and the Defendant Quicken Loans'
right to foreclose thereon. See Defendants'
Exhibit H [Wright v. Quicken Loans. Inc.. No.
2015-CP-08-00482]. Plaintiff has also previously sought an
automatic stay from the United States Bankruptcy Court. That
case was dismissed. See In re Edwin P. Wright. Civ.
No. 17-03142 (filed June 26, 2017). Based on this case
history, the undersigned agrees with the Defendants that
Plaintiffs claims in this case are barred by the doctrine of
res judicata. Wilson v. GMAC Mortg.. LLC, No.
14-1615, 2015 WL 5244967, at * 2 (D.S.C. Sept. 8, 2015) [res
judicata bars a litigant "from raising any issues which
were adjudicated in the former suit and any issue which might
have been raised in the former suit"]; see also
Boston v. Stobbe, 586 F.Supp.2d 574, 580 (D.S.C. 2008)
["[O]nce a court of competent jurisdiction actually and
necessarily determines an issue, that determination remains
conclusive in subsequent suits, based on a different cause of
action but involving the same parties, or privies, to the
undersigned further agrees with the Defendants that, even if
this case was not barred by res judicata, Plaintiffs
assertion that the foreclosure on his real property was
invalid under a "split note" theory of
relief is without merit, as the "split
note" theory is not viable under South Carolina law.
Scheider v. Deutsche Bank Nat. Trust Co.. 572
F.Appx. 185, 190 (4th Cir. 2014) ["South
Carolina has long upheld the familiar and uncontroverted
proposition... that the assignment of a note secured by a
mortgage carries with it an assignment of the mortgage"]
(internal citations omitted). Plaintiff s additional claim
that the Defendants violated the Fair Debt Collections
Practices Act(FDCPA), 15 U.S.C. § 1692, et seq., also
fails as a matter of law because the Defendants are not
"debt collectors" as defined by that Act.
Carrington v. Indy Mac Mortg. Servs., No. 12-1060,
2013 WL 530050, at * 2 (D.S.C. Feb. 8, 2013)
["[Creditors, mortgagees, and mortgage servicing
companies are not debt collectors subject to liability under
it is recommended that the Defendants' motion to dismiss
be granted, and that this case be dismissed. Neitzke v.
Williams, 490 U.S. 319, 322-330 (1989) [under 28 U.S.C.
§ 1915 a claim is frivolous and may be dismissed where
it is presented in a patently insubstantial complaint,
petition, or pleading]; see generally, Leeds v.
Meltz, 85 F.3d 51, 53 (2d Cir. 1996)["While the
pleading standard is a liberal one, bald assertions and
conclusions of law" are not sufficient to avoid
dismissal of a complaint for failure to state a proper
parties are referred to the Notice Page attached hereto.
of Right to File Objections to Report and
parties are advised that they may file specific written
objections to this Report and Recommendation with the
District Judge. Objections must specifically identify the
portions of the Report and Recommendation to which objections
are made and the basis for such objections. "[I]n the
absence of a timely filed objection, a district court need
not conduct a de novo review, but instead must 'only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.'"
Diamond v. Colonial Life & Ace. Ins. Co., 416
F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72
advisory committee's note).
written objections must be filed within fourteen (14) days of
the date of service of this Report and Recommendation. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see
Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal
Rule of Civil Procedure 5 may be accomplished by mailing
Robin L. Blume, Clerk United States District Court Post
Office Box 835 Charleston, South Carolina 29402
Failure to timely fde specific written objections to
this Report and Recommendation will result in waiver of the
right to appeal from a judgment of the District Court based
upon such Recommendation. 28 U.S.C. §
636(b)(1); Thomas v. Am,474 U.S. 140(1985);
Wright v. Collins,766 F.2d 841 (4th Cir. ...