Hickson v. Home Federal of Atlanta

• Decision Date: 28 September 1992
• Docket Number: No. 1:92-cv-914-RHH.,1:92-cv-914-RHH.
• Citation: 805 F. Supp. 1567
• Parties: Trent T. HICKSON, Plaintiff, v. HOME FEDERAL OF ATLANTA, Defendant.
• Court: U.S. District Court — Northern District of Georgia

805 F. Supp. 1567

Trent T. HICKSON, Plaintiff, v. HOME FEDERAL OF ATLANTA, Defendant.

No. 1:92-cv-914-RHH.

United States District Court, N.D. Georgia, Atlanta Division.

September 28, 1992.

COPYRIGHT MATERIAL OMITTED

Trent T. Hickson, Somerset, N.J., for plaintiff.

Hugh Marshall Worsham, Jr., Hishon & Burbage, Michael J. Shavel and Hill Wallack, Princeton, N.J., for defendant.

ORDER

ROBERT H. HALL, District Judge.

This is a civil rights and fair housing action brought pursuant to 42 U.S.C. §§ 1981, 3605, 3613, and 3617; an action for violation of a bankruptcy stay brought pursuant to 11 U.S.C. § 362; and a state law action for invasion of privacy. Jurisdiction is vested with the Court pursuant to 28 U.S.C. § 1331. This case is before the Court on Defendant's Motions to Dismiss for insufficiency of service of process, and for failure to state a claim 4, and on Plaintiff's Motion for Summary Judgment. 11. The Court GRANTS in part and DENIES in part Defendant's Motion to Dismiss, and DENIES Plaintiff's Motion for Summary Judgment.

BACKGROUND

Plaintiff, Trent T. Hickson ("Hickson"), is an African-American currently living in the State of New Jersey. Defendant, Homebanc Federal Savings Bank¹ ("Homebanc"), is a banking corporation in the State of Georgia. On December 29, 1984, Hickson purchased property at 4397 Coopers Creek Drive in Smyrna, Georgia ("the Property") with a $64,000 loan from Homebanc. Hickson executed and gave to Homebanc a promissory note ("the Note") in the amount of $64,000, secured by a security deed to the Property. The Security Deed entitled Homebanc to foreclose on the Note should Hickson sell or transfer any part of the Property without Homebanc's prior written consent.

In 1985, Hickson relocated to New Jersey, and leased the Property to various tenants between 1985 and 1991. In September of 1990, Hickson transferred title to the Property to a New Jersey corporation ("the Corporation"), of which he was either an "independent director," or "the owner." Complaint, p. 4. Homebanc treated the transfer as a default under the Security Deed, and shortly thereafter began foreclosure proceedings on the Property. Hickson offered to deed the property to Homebanc in lieu of foreclosure, but Homebanc refused the offer.

James W. Cloud, a Homebanc representative, testified that in January of 1985, Homebanc sold Hickson's Note and Deed to the Federal National Mortgage Association ("FNMA"), and assumed the responsibilities of FNMA's servicing agent. Affidavit of James W. Cloud, p. 2. Mr. Cloud testified further that it is FNMA's standard policy not to accept deeds in lieu of foreclosure on residential mortgages that are in default, and that Homebanc, as FNMA's servicing agent, refused Hickson's offer pursuant to that policy. Id. at 2-3. Homebanc also alleges that Hickson has failed to make any payments on the Note since February, 1991, and that such failure is a default under the Security Deed, entitling Homebanc to foreclose on the Property. Motion to Dismiss, ¶ 10.

On May 16, 1991, Hickson filed for Chapter 13 bankruptcy, automatically staying Homebanc's foreclosure proceedings. The U.S. Bankruptcy Court dismissed Hickson's bankruptcy case on January 7, 1992, thus lifting the stay. Hickson alleges that while his bankruptcy petition was pending, Homebanc reported to a credit agency that Hickson was delinquent on his loan payments. Complaint, p. 6.

Hickson claims that by refusing to accept his deed in lieu of foreclosure, Homebanc violated 42 U.S.C. §§ 3605, 3613 & 3617 prohibiting discrimination in the financing of housing. Complaint at p. 1. Hickson alleges specifically that Homebanc "deliberately and maliciously inflicted distress by exhibiting unreasonable business conduct that has resulted in violations of rights secured to the plaintiff by 42 U.S.C. § 3605, § 3617, § 3613." Id. at 7. Hickson claims also that Homebanc violated 42 U.S.C. § 1981, guaranteeing Hickson equal rights under the law, by foreclosing on the Note and reporting financial information regarding Hickson to credit agencies. Id. at 1. Hickson alleges that Homebanc's actions "caused interference with his business affairs of employment, and capabilities to conduct trade and commerce," and that its actions were "deliberate and malicious." Id. at 1, 7. Hickson claims further that Homebanc violated 11 U.S.C. § 362², imposing an automatic stay on various legal proceedings against a party that has filed for bankruptcy, by reporting financial information regarding Hickson to a credit agency. Hickson's Brief in Opposition to Defendant's Motion to Dismiss, p. 2. Finally, Hickson claims that Homebanc tortiously invaded his privacy by making its report to the credit agency. Id. at 4; Complaint, p. 1.

Homebanc has moved the Court to dismiss Hickson's complaint due to insufficient service of process and Hickson's failure to state a claim upon which relief can be granted. 4. Hickson has moved the Court to grant him Summary Judgment on all claims against Homebanc. 11. Hickson originally filed his suit in Federal District Court in New Jersey. At oral argument on Homebanc's Motion to Dismiss, Homebanc challenged the venue. The New Jersey district court found that it had "no personal jurisdiction over Defendant and that venue in the District of New Jersey is improper," and transferred the case to this Court. Order of April 8, 1992. Thus, the case is before this Court on Homebanc's Motion to Dismiss and Hickson's Motion for Summary Judgment.

DISCUSSION

A. Homebanc's Motion to Dismiss for Insufficient Service of Process.

In support of its Motion to Dismiss for lack of jurisdiction, Homebanc asserts that it was served "by mail only, a method of service not authorized under Fed.R.Civ.P. 4 except in accordance with the specific procedures set forth therein." Homebanc's Memorandum in Further Support of its Motion to Dismiss, p. 2. Homebanc contends further that "since those procedures have not been satisfied, plaintiff's Complaint is subject to dismissal." Id. Homebanc does not elaborate on its assertion, and does not inform the Court specifically how Hickson failed to satisfy Rule 4's requirements.

Federal Rule of Civil Procedure 12(b)(5) recognizes motions to dismiss for "insufficiency of service of process." If a party fails to raise a Rule 12(b) objection sufficiently in its answer, or by motion, the objection is waived. Fed.R.Civ.P. 12(h)(1). The Court has not found any case law within the Eleventh Circuit explaining the detail with which a party making a rule 12(b)(5) motion must describe the insufficiency of the service. Courts in other circuits, however, have found that the objection "must be specific and must point out in what manner the plaintiff has failed to satisfy the requirements of the service provision utilized." Photolab Corp. v. Simplex Specialty Co., 806 F.2d 807, 810 (8th Cir.1986) (citing Travelers Ins. Co. v. Panama-Williams, Inc., 424 F.Supp. 1156, 1157 (N.D.Okla.1976)), cited with approval by King v. Best Western Country, 138 F.R.D. 39, 43 (S.D.N.Y.1991), and 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1353 (1990).

In Panama-Williams, the defendant filed a Motion to Dismiss, but failed to specify in its motion "in what particulars the service of process was deficient." 424 F.Supp. at 1157. Because the court was unable to determine from looking at the summons and the marshal's return of service that the defendant was not properly served, the court found that it could not sustain the motion to dismiss. Id.

The facts in the case before the Court are very similar to those in Panama-Williams. Homebanc, in its Motion to Dismiss, concedes that it was served by mail, but protests obtusely that certain unenumerated "procedures" were not "satisfied." Homebanc's Memorandum in Further Support of its Motion to Dismiss, p. 2. Homebanc gives the Court no hint as to which procedures it refers, nor does Homebanc suggest how Hickson failed to satisfy them. Furthermore, neither the summons nor the return of service were entered into the record, so the Court is unable to make an independent determination of whether Homebanc was properly served.

The Court adopts the requirement enunciated in Panama-Williams, that Homebanc must specify in its brief in support of its Motion to Dismiss in what particulars service of process was deficient. Based on this requirement, the Court finds that Homebanc failed to object properly to the sufficiency of Hickson's service of process. The Court, therefore, DENIES Homebanc's Motion to Dismiss for Insufficiency of Service of Process.

B. Homebanc's Motion to Dismiss for Failure to State a Claim.

1. Standard of Review.

Federal Rule of Civil Procedure 12(b)(6) allows dismissal of a complaint which fails "to state a claim upon which relief can be granted." In consideration of a Rule 12(b)(6) motion, the court may look only to the pleadings. See Rule 12(b). The court furthermore construes the pleadings broadly, accepting all facts pleaded therein as true and viewing all inferences in a light most favorable to the nonmoving party. Cooper v. Pate, 378 U.S. 546, 546, 84 S.Ct. 1733, 1733, 12 L.Ed.2d 1030 (1964). Thus, a motion to dismiss will be granted only if "it appears beyond doubt that the nonmovant can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

A pro se complaint is held to even less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972) (pro se complaints are to be liberally construed); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976) (same); Watson v. Ault, 525 F.2d 886, 891 (5th Cir.1976) (same).

2. 42 U.S.C. §§ 3605, 3613, 3617.

To state a claim under section 3605 of the Fair Housing Act,³ Hickson must plead that: (1) he was a member...