Coleman v. Indymac Venture, LLC., Case No. 2:12–cv–2125–JTF–dkv.

• Court: United States District Courts. 6th Circuit. Western District of Tennessee
• Writing for the Court: JOHN T. FOWLKES
• Citation: 966 F.Supp.2d 759
• Parties: Dardanuis COLEMAN, Plaintiff, v. INDYMAC VENTURE, LLC., Defendant.
• Docket Number: Case No. 2:12–cv–2125–JTF–dkv.
• Decision Date: 20 August 2013

966 F.Supp.2d 759

Dardanuis COLEMAN, Plaintiff,
v.
INDYMAC VENTURE, LLC., Defendant.

Case No. 2:12–cv–2125–JTF–dkv.

United States District Court,
W.D. Tennessee,
Western Division.

Aug. 20, 2013.

[966 F.Supp.2d 765]

Dardanuis Coleman, Collierville, TN, pro se.

ORDER ADOPTING REPORT AND RECOMMENDATION FOR SUA SPONTE DISMISSAL
JOHN T. FOWLKES, JR., District Judge.

Before the Court is the Plaintiff's “Petition to Rescind Foreclosure, Complaint for Damages and Emergency Stay,” filed on February 15, 2012. (DE # 1). On March 25, 2013, the case was referred to the Magistrate Judge pursuant to 28 U.S.C. §§ 636–639. (DE # 4). On June 12, 2013, the Magistrate Judge entered her report, recommending that the case be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2). (DE # 5) No objections have been filed to the Magistrate Judge's Report and Recommendation.

After reviewing the Magistrate Judge's Report and Recommendation and the entire record in this case, the Court hereby ADOPTS the Magistrate Judge's Report and Recommendation.

IT IS THEREFORE ORDERED that the case be DISMISSED for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2).

REPORT AND RECOMMENDATION FOR SUA SPONTE DISMISSAL DIANE K. VESCOVO, United States Magistrate Judge.

On February 15, 2012, the plaintiff, Dardanuis Coleman (“Coleman”), a resident of Shelby County, Tennessee, filed a pro se “Petition to Rescind Foreclosure, Complaint for Damages and Emergency Stay,” (Compl., Docket Entry (“D.E.”) 1), accompanied by a motion seeking leave to proceed in forma pauperis, (D.E. 2.) On February 17, 2012, the court issued an order granting Coleman leave to proceed in forma pauperis, (D.E. 3), and referred the case to the pro se staff attorney for screening pursuant to Local Rule 4.1. This case has now been referred to the United States Magistrate Judge for management and for all pretrial matters for determination and/or report and recommendation as appropriate. (Order of Reference, D.E. 4.). For the reasons that follow, it is recommended that this case be dismissed for failure to state a claim.

I. PROPOSED FINDINGS OF FACT

This is an action to rescind a nonjudicial foreclosure of real property located at 309 North Monterey Cove, Collierville, Tennessee 38017 (“property”). The complaint states that on January 5, 2006, Coleman and his wife, as tenants by the entirety, obtained a construction loan from Indymac Bank in the amount of $714,000. (Compl., D.E. 1 ¶ 6.) According to the public records of the Shelby County Registrar of Deeds, a Construction Deed of Trust and Security Agreement (“Deed of Trust”) dated December 21, 2005, was signed by Bavarian A. Coleman and Dardanuis L. Coleman and recorded on January 5, 2006, as Instrument No. 06003331. This document states that the borrower on the construction loan was Coleman's wife, Bavarian A.

[966 F.Supp.2d 766]

Coleman (“Mrs. Coleman”). The complaint states that the loan was executed at the office of Carlton Orange, Esq. at Orange Law Firm PC in Memphis, Tennessee. ( Id. ¶ 10.) The Deed of Trust states that the borrower, Mrs. Coleman, transferred to Trustee Carlton W. Orange, Esq., the property, as security for the repayment of the loan.

The complaint alleges that in 2006 Coleman began having difficulties making payments on the loan and he attempted to modify the loan agreement. ( Id. ¶¶ 11–12.) Indymac Bank denied the loan modification, the Coleman's last draw on the loan was in February 2007, and the last payment Coleman made on the loan was in April 2007. ( Id. ¶¶ 14–15.) Coleman then “commenced ... the process of reapplying for a loan mortgage.” The complaint alleges that on July 13, 2007, Indymac Bank sent to Coleman requests for further information “in order for his loan modification request to be processed” to which Coleman responded promptly. ( Id. ¶¶ 20–21.) Coleman continued to use his personal funds to build the house while Indymac Bank sent an inspector to inspect the work done on the house at least four times between the summer of 2007 and the spring of 2010. ( Id. ¶¶ 19, 23.) Coleman alleges that he had no notice of any impending foreclosure although he was regularly in touch with Indymac Bank to discuss the loan modification application. ( Id. ¶ 24.)

The complaint alleges that Indymac Bank organized Indymac Venture LLC (“Indymac Venture”), and that Indymac Venture conducted a foreclosure sale of the property on June 9, 2010.¹ ( Id. ¶¶ 25, 27.) Indymac Venture “purportedly” advertised the foreclosure sale on three dates in the Memphis Commercial Appeal newspaper: May 4, May 11, and May 18, 2010. ( Id. ¶ 26.) According to the complaint, on June 9, 2010, Indymac Venture sold the property to Indymac Bank at the foreclosure sale. ( Id. ¶ 27.) ² Coleman found out about the foreclosure and transfer of deed on June 15, 2010. ( Id. ¶ 30.) On January 6, 2011, Coleman was notified of an action to evict him and his wife from the property and of a hearing on the matter in Shelby County General Sessions Court on February 7, 2011. ( Id. ¶ 31.) ³

The complaint sets forth the following claims for relief: (1) Count I—Rescission of Foreclosure Sale; (2) Count II—Fair Debt Collection Practices Act Violation

[966 F.Supp.2d 767]

(“FDCPA”); (3) Count III—Tennessee Consumer Protection Act Violation (“TCPA”); (4) Count IV—Tennessee Home Loan Protection Act (“THLPA”); and (5) Count V—Unlawful Entry. ( Id. ¶¶ 32–49.) Coleman seeks a temporary restraining order prohibiting Indymac Venture from taking possession or initiating legal action to take possession of the property, rescission of the foreclosure of the property, and damages arising under the FDCPA, TCPA, and unlawful entry under T.C.A § 29–18–101. ( Id. ¶¶ 50–58.)

II. PROPOSED CONCLUSIONS OF LAW A. 28 U.S.C. § 1915(e)(2) Screening

Pursuant to Local Rule 4.1(a), service will not issue in a pro se case where the pro se plaintiff has been granted leave to proceed in forma pauperis until the complaint has been screened under 28 U.S.C. § 1915(e)(2). The clerk is authorized to issue summonses to pro se litigants only after that review is complete and an order of the court issues. This report and recommendation will constitute the court's screening. The court is required to screen in forma pauperis complaints and to dismiss any complaint, or any portion thereof, if the action—

(i) is frivolous or malicious;

fails to state a claim on which relief may be granted; or

seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2).

B. Standard of Review for Failure to State a Claim

In assessing whether the complaint in this case states a claim on which relief may be granted, the standards under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as stated in Ashcroft v. Iqbal, 556 U.S. 662, 678–679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), are applied. Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir.2010). “Accepting all well-pleaded allegations in the complaint as true, the Court ‘consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.’ ” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir.2011) (quoting Iqbal, 556 U.S. at 681, 129 S.Ct. 1937) (alteration in original). “[P]leadings that ... are no more than conclusions[ ] are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937;see also Twombly, 550 U.S. at 555 n. 3, 127 S.Ct. 1955 (“Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds' on which the claim rests.”).

“ Pro se complaints are to be held to less stringent standards than formal pleadings drafted by lawyers, and should therefore be liberally construed.” Williams, 631 F.3d at 383 (internal quotation marks omitted). Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir.1989); see also Brown v. Matauszak, 415 Fed.Appx. 608, 613 (6th Cir.2011) (“[A] court cannot create a claim which [a plaintiff] has not spelled out in his pleading”) (internal quotation marks omitted); Payne v. Sec'y of Treas., 73 Fed.Appx. 836, 837 (6th Cir.2003) (affirming sua sponte dismissal of complaint pursuant to

[966 F.Supp.2d 768]

Fed.R.Civ.P. 8(a)(2) and stating, “[n]either this court nor the district court is required to create Payne's claim for her”); cf.Pliler v. Ford, 542 U.S. 225, 231, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004) (“District judges have no obligation to act as counsel or paralegal to pro se litigants.”); Young Bok Song v. Gipson, 423 Fed.Appx. 506, 510 (6th Cir.2011) (“[W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only would that duty be overly burdensome, it would transform the courts from neutral arbiters of disputes into advocates for a particular party. While courts are properly charged with protecting the rights of all who come before it, that responsibility does not encompass advising litigants as to what legal theories they should pursue.”).

C. Subject–Matter Jurisdiction

As an initial matter, the court must determine whether it has subject-matter jurisdiction over this action. “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian...