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Wright v. Quicken Loans Inc.

United States District Court, D. South Carolina

December 20, 2017

Edwin Wright, Plaintiff,
v.
Quicken Loans Inc. and Shariff Holdings, LLC, Defendants.

          REPORT AND RECOMMENDATION

          Bristow Merchant United States Magistrate Judge

         The 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.

         The pro 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).[1] 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].[2]

         Alternatively, 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"].

         Essentially, 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.[3] 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.[4] 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 previous litigation"].

         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[5] 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 the FDCPA"].

         Therefore, 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 claim.].

         The parties are referred to the Notice Page attached hereto.

         Notice of Right to File Objections to Report and Recommendation

         The 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).

         Specific 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 objections to:

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. ...


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