Deramus v. Shapiro Schwartz, LLP
| Decision Date | 02 June 2020 |
| Docket Number | CIVIL ACTION NO. 4:19-CV-4683 |
| Parties | BILLY TROY DERAMUS, Plaintiff, v. SHAPIRO SCHWARTZ, LLP AND NATIONSTAR MORTGAGE, LLC D/B/A MR. COOPER, Defendants. |
| Court | U.S. District Court — Southern District of Texas |
This matter is before the Court on Defendant Shapiro Schwartz, LLP's Motion for Judgment on the Pleadings pursuant to Federal Rules of Civil Procedure 12(c). Dkt. 29.1 Plaintiff has not filed a timely response.2 The Court recommends that Shapiro Schwartz LLP's (Shapiro's) Motion be GRANTED and all claims against Shapiro be DISMISSED with prejudice.3
Plaintiff's Complaint contains very few factual allegations and consists mostly of citations to seemingly irrelevant statutory provisions. From what the Court can ascertain, on December 30, 2014, Plaintiff executed a promissory note in the amount of $157,102.00 secured by a deed of trust on property in Harris County, Texas. Dkt. 1 at 2, 25. The Substitute Trustee's Deed and Notice of Trustee's Sale attached to Nationstar's Motion to Dismiss (Dkt. 10) show that Plaintiff defaultedon the note, which led to a notice of default, acceleration of the debt, notice of foreclosure, and sale of the property at a foreclosure sale on October 1, 2019. Dkt. 10-1. Nationstar purchased the property at the foreclosure sale with a credit bid of $152,000.00. Id. Plaintiff's Complaint includes no factual allegations about the foreclosure proceedings. Plaintiff appears to allege that he does not owe anyone money because Defendants did not give him gold or silver. Dkt. 1 at 10. Plaintiff alleges that he received documents, apparently from Shapiro Schwartz LLP, wrongly identifying him as a "tenant" and attempting to evict him from the property. Dkt. 1 at 6-7. Subsequent filings in this case indicate that Dieu Tuyetthi Troung instituted eviction proceedings against Plaintiff on December 27, 2019 based on the representation that he purchased the property on October 21, 2019. Dkt. 6, 15.
Plaintiff's Complaint cites 48 U.S.C. § 1988 as the source of this Court's jurisdiction. Id. at 3. The Complaint purports to assert claims for violations of 18 U.S.C. §§ 1341, 1342, 1344, 1348, 1349 and 1350 related to mail fraud; 18 U.S.C. §§ 241, 242, 245, and 246 related to civil rights; 31 U.S.C. §§ 5101, 5102, 5103 related to the monetary system; and 31 U.S.C. §§ 5301-5304, 5311-5332, and 5340-5355 related to monetary transactions and financial crimes. The Court construes the Complaint as also asserting claims for violation of the Federal Housing Act (FHA) and Real Estate Settlement Procedures Act (RESPA). Plaintiff's Complaint includes no factual allegations that explain how Shapiro violated the above statutes.
"After the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings." FED. R. CIV. P. 12(c). "A motion brought pursuant to Fed.R.Civ.P. 12(c) is designed to dispose of cases where the material facts are not in dispute and a judgment onthe merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts." Hebert Abstract Co. v. Touchstone Properties, Ltd., 914 F.2d 74, 76 (5th Cir. 1990). The standards for deciding motions under Rule 12(c) are the same as under Rule 12(b)(6). Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312-13 (5th Cir. 2002).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the conduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), this Court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff. Alexander v. AmeriPro Funding, Inc., 48 F.3d 68, 701 (5th Cir. 2017) (citing Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). However, the court does not apply the same presumption to conclusory statements or legal conclusions. Iqbal, 556 U.S. at 678-79.
Shapiro is entitled to judgment on the pleadings because Plaintiff's Complaint fails to state a claim for which relief can be granted against Shapiro and because Shapiro is protected from suit by attorney immunity.
A private cause of action to enforce a statute exists only if created by Congress. Alexander v. Sandoval, 532 U.S. 275, 286 (2001). "The judicial task is to interpret the statute Congress haspassed to determine whether it displays an intent to create not just a private right but also a private remedy." Id. The Court has already held that 42 U.S.C. § 1988 does not create a private cause of action or private remedy. Similarly, the criminal statutes to which Plaintiff cites do not confer Plaintiff with a private right of action or private remedy. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (); Quarles v. State of Tex., 312 F. Supp. 835, 837 (S.D. Tex. 1970) (). In addition, Title 31 of the U.S. Code regarding monetary transactions, financial crimes, and federal strategies for investigating and prosecuting financial crimes, does not provide for any private right of action. See McReynolds v. United States, No. 4:17-CV-422-ALM-CAN, 2017 WL 6884122, at *2 (E.D. Tex. Nov. 7, 2017), report and recommendation adopted, No. 4:17-CV-422, 2018 WL 338632 (E.D. Tex. Jan. 9, 2018) ().
Because 42 U.S.C. § 1988 related to civil rights; 18 U.S.C. §§ 1341, 1342, 1344, 1348, 1349 and 1350 related to mail fraud; 18 U.S.C. §§ 241, 242, 245, and 246 related to civil rights; 31 U.S.C. §§ 5101, 5102, 5103 related to the monetary system; and 31 U.S.C. §§ 5301-5304, 5311-5332, and 5340-5355 related to monetary transactions and financial crimes do not display any indication of Congressional intent to create a private right and a private remedy, Plaintiff's claims for violation of these statutes should be dismissed with prejudice under Rule 12(b)(6). Armbrister, 2018 WL 6004310, at *4 n.4; Hernandez v. Ciba-Geigy Corp. USA, 200 F.R.D. 285, 289 (S.D. Tex. 2001) ().
The FHA prohibits discrimination based on a person's race or other protected characteristics in connection with the sale or rental of real property. 42 U.S.C. § 3604; Simms v. First Gibraltar Bank, 83 F.3d 1546, 1559 (5th Cir. 1996) (). The FHA provides for a private remedy:
An aggrieved person may commence a civil action in an appropriate Unites States district court or State court not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice, or the breach of a conciliation agreement entered into under this title, whichever occurs last, to obtain appropriate relief with respect to such discriminatory housing practice or breach.
42 U.S.C. § 3613(a)(1)(A).
Plaintiff's complaint fails to explain how Shapiro allegedly violated the FHA. Plaintiff has also failed to allege that he belongs to a protected class, that Shapiro took any action because of his protected class, or that Shapiro treated others outside of his protected class differently than it treated him, allegations which are required to plead intentional discrimination under the FHA. Simms, 83 F.3d at 1559. For these reasons, the Complaint should be dismissed pursuant to Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Further, the FHA does not address foreclosure proceedings, and does not appear to provide any other plausible claim by Plaintiff against Shapiro. See 42 U.S.C. § 3604 (). Finally, the record establishes that Plaintiff executed the Note and Deed of Trust on December 14, 2014. Dkt. 10-1. Therefore, any claim under the FHA is barred by the applicable 2-year statute of limitations. For all of these reasons, Plaintiff's claims against Shapiro should be dismissed with prejudice.
Plaintiffs' Complaint makes a passing reference to Dkt. 1 at 3. Plaintiff fails to allege a provision of RESPA under which he sues and fails to include any factual allegations explaining how Shapiro allegedly violated the statute. Again, the Complaint should be dismissed on this basis pursuant to Twombly, 550 U.S. at 570.
In addition, private actions pursuant to RESPA must be brought "within 3 years in the case of a violation of section 2605 of this title and 1 year in the case of a violation of section 2607 or 2608 of this title from the date of the occurrence of the violation." 12 U.S.C.A. § 2614. Plaintiff executed his loan documents on December 14, 2014 and filed this case on November 29, 2019. Therefore, any claim he may have under RESPA is time-barred. Plaintiff has failed to plead a plausible claim against Shapiro for violations of RESPA and the claim should be dismissed with prejudice. See Twombly, 550 U.S. at 570.
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