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Clements v. The Bank of New York Mellon

United States District Court, D. South Carolina, Greenville Division

September 19, 2019

Stephen A. Clements, Plaintiff,
v.
The Bank of New York Mellon, Defendant.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald, United States Magistrate Judge.

         The plaintiff, proceeding pro se, filed the instant action alleging violations of federal law due to a foreclosure action filed by the defendant against him. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.

         The plaintiff filed this case against the defendant on August 2, 2019 (doc. 1). By Order filed on August 7, 2019, the plaintiff was informed that his complaint was subject to summary dismissal because it fails to state a claim upon which relief may be granted (doc. 8). In the same Order, the plaintiff was informed that he could attempt to cure the defects in his complaint by filing an amended complaint within fourteen days (doc. 8 at 7-8). The plaintiff was informed that if he failed to file an amended complaint or cure the deficiencies outlined in the Order, the undersigned would recommend that his claims be dismissed (id.). The plaintiff has failed to file an amended complaint within the time provided; accordingly, the undersigned recommends that the instant matter be dismissed.

         BACKGROUND

         This case arises from a state foreclosure action (2018-CP-23-04940) filed against the plaintiff by the defendant, The Bank of New York Mellon (“state foreclosure action”). The court takes judicial notice of the state foreclosure action filed in the Greenville County Court of Common Pleas.[1] See The Bank of New York Mellon, et al. v. Clements, et al., C/A No. 2018-CP-23-04940, Greenville County Public Index, https://www2.greenvillecounty.org/SCJD/ PublicIndex/PISearch.aspx (enter the plaintiff's name and 2018-CP-23-04940) (last visited September 9, 2019). In the instant action, the plaintiff, dissatisfied with the way the state foreclosure action proceeded, seeks damages from the defendant for its alleged violation of several federal laws, including: Federal Protection Act, Federal Debt Collections Practices Act, Federal Consumer Financial Law, Protecting Tenant from Foreclosure Act, Truth in Lending Act (“TILA”), Regulation Z (12 C.F.R. § 1026), Home Ownership & Equity Protection Act, Mortgage Disclosure Improvement Act, and the Electronic Signatures in Global and National Commerce Act (doc. 1 at 1-2).

         In essence, the plaintiff alleges that the defendant (who is not the original mortgage holder) did not have standing to pursue the state foreclosure action against the plaintiff (id.).[2] The plaintiff contends that there was another foreclosure action filed by this defendant in 2015 that was dismissed, and the plaintiff asserts that due to that prior action, the defendant was barred from filing the state foreclosure action by res judicata (id. at 3-4). The plaintiff also asserts that he has been defrauded by the collusion and civil conspiracy the defendant engaged in and that he was not well-represented in the state foreclosure action because of malpractice by Attorney Alan Stewart (although Mr. Stewart is not identified in the state court filings/docket) (id. at 4). The plaintiff contends that the loan is predatory and charges an interest rate in excess of that allowed for by law, violates TILA by its own terms/vagueness, that he was never given documentation required by Regulation Z, and that he was never given a notice of right to cure (id. at 4-5).

         For relief, the plaintiff seeks a temporary restraining order and preliminary injunction (presumably to prevent the execution of the foreclosure and sale of the property) (id. at 6). The plaintiff also seeks rescission of the foreclosure, money damages, the right to ownership of the property, a termination of the defendant's interest in the plaintiff's property, and a return of funds that were in his escrow account (id.).

         STANDARD OF REVIEW

         The plaintiff is a pro se litigant and his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction, however, does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

         “The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed.R.Civ.P. 41(b)). Federal courts are courts of limited jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Since federal courts have limited subject matter jurisdiction, there is no presumption that the court has jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999) (citing Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 337 (1895)). Accordingly, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists, “and to dismiss the action if no such ground appears.” Bulldog Trucking, 147 F.3d at 352; see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).

         DISCUSSION

         As noted above, the plaintiff filed this action seeking damages from the defendant as a result of the state foreclosure action (doc. 1). For the reasons that follow, the instant matter is subject to summary dismissal.

         State Foreclosure Action

         The plaintiff filed this action seeking damages from the defendant as a result of the state foreclosure action (doc. 1). The plaintiff's complaint, however, is subject to summary dismissal because, under the Rooker-Feldman doctrine[3], this Court is without jurisdiction over this action. Weather ...


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