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 Nationstar Mortgage LLC d/b/a Mr. Cooper's Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Dkts. 9, 10.1 Plaintiff filed what the Court construes as his Complaint (Dkt. 1) pro se on November 29, 2019.2 The Court recommends that Nationstar's Motion to Dismiss be GRANTED and all claims against Nationstar be DISMISSED with prejudice.
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 show that Plaintiff defaulted on the note, which led to a notice of default, acceleration of the debt, notice of foreclosure, and sale of the property ata 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 Nationstar violated the above statutes.
When subject matter jurisdiction is challenged, the court "is free to weigh the evidence and resolve factual disputes in order to satisfy itself that it has power to hear the case." Montez v. Dep't of the Navy, 392 F.3d 147, 149 (5th Cir. 2004); Krim v. Pcorder.com, 402 F.3d 489, 494 (5th Cir. 2005). The court may consider any of the following in resolving a Rule 12(b)(1) motion: "(1) thecomplaint alone; (2) the complaint supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008); see also Schaeffler v. United States, 889 F.3d 238, 242 (5th Cir. 2018). The plaintiff bears the burden of establishing subject matter jurisdiction. Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380, 388 (5th Cir. 2014). If the plaintiff fails to meet his burden, the case must be dismissed. Id.
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.
Plaintiff's Complaint cites 48 U.S.C. § 1988 as the source of this Court's jurisdiction.3 Id. at 3. Nationstar has moved to dismiss this case for lack of jurisdiction under Rule 12(b)(1) because 42 U.S.C. § 1988 does not create a private cause of action and does not confer federal jurisdiction. See Harding v. Am. Stock Exch., Inc., 527 F.2d 1366, 1370 (5th Cir. 1976) ( ; Galan v. Wolf, No. CIV. A. 90-855, 1990 WL 109374, at *2 (E.D. La. July 17, 1990), aff'd, 925 F.2d 1459 (5th Cir. 1991) () (internal citation omitted)).
It is clear that 42 U.S.C. § 1988 does not confer federal jurisdiction. However, Plaintiff has attempted to assert claims under federal statutes that can confer federal jurisdiction. See 42 U.S.C. § 3613(a)(1)(A) ( ); 12 U.S.C.A. § 2614 ( ). Therefore, the Court will consider Nationstar's Motion to Dismiss under Rule 12(b)(6). See Armbrister v. McFarland, No. 3:18-CV-1211-B-BH, 2018 WL 6004310, at *4 n.4 (N.D. Tex. Oct. 30, 2018), report and recommendation adopted, No. 3:18-CV-1211-B-BH, 2018 WL 5994992 (N.D. Tex. Nov. 15, 2018) ( ).
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 has passed 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 ofaction 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...
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