United States District Court, D. South Carolina, Greenville Division
Stephen A. Clements, Plaintiff,
The Bank of New York Mellon, Defendant.
REPORT OF MAGISTRATE JUDGE
F. McDonald, United States Magistrate Judge.
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
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.
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. See The Bank of New York
Mellon, et al. v. Clements, et al., C/A No.
2018-CP-23-04940, Greenville County Public Index,
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).
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.). 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).
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.).
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.
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
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.
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, this Court is without jurisdiction over
this action. Weather ...