Jones v. Luthi, C.A. No. 6:06-2202-PMD.
| Decision Date | 09 June 2008 |
| Docket Number | C.A. No. 6:06-2202-PMD. |
| Citation | 586 F.Supp.2d 595 |
| Parties | Christopher Bernard JONES, Plaintiff, v. Perry S. LUTHI, Sr.; Desmine Sartain; Luthi Mortgage Company, Inc.; Carolina Tax Service; Luthi Construction Company; Liberty Funding; General Funding; Perry S. Luthi, Jr.; Martha Pace; Lori Murphy; Carol A. Simpson; Ira Handy; Handy's Moisture and Pest; Pete Peterson; Ron Platt; Marsha Platt; Sonny Ninan; Michael Doe; Dee Dee Doe; and Kim Doe, Defendants. |
| Court | U.S. District Court — District of South Carolina |
Christopher Bernard Jones, Enoree, SC, pro se.
Bruce Wyche Bannister, James W. Bannister, Bannister and Wyatt, Melvin R. Hutson, Melvin Hutson Law Office, Greenville, SC, David G. Ingalls, David Ingalls Law Office, Spartanburg, SC, for Defendants.
Carol A. Simpson, Greenville, SC, pro se.
Ira Handy, Taylor, SC, pro se.
Ron Platt, Greenville, SC, pro se.
Marsha Platt, Greenville, SC, pro se.
This matter is before the court upon several recommendations of United States Magistrate Judge Joseph R. McCrorey, filed in three separate Reports and Recommendations ("R & R"). Magistrate Judge McCrorey first recommended that Plaintiff Christopher Bernard Jones's ("Plaintiff" or "Jones") Motion to Certify a Class be denied. (See Doc. No. [125].) Magistrate Judge McCrorey also recommended that Plaintiff's Motions for Summary Judgment with respect to Defendants Carol Simpson, Ira Handy, Handy's Moisture and Pest Control, Sonny Ninan, Ronald Platt, and Marsha Platt be denied. (See Doc. No. [127].) In his last R & R, issued on February 15, 2008, Magistrate Judge McCrorey recommended that:
1. Plaintiffs motion for partial summary judgment (Doc. No. 70) as to his claim under the Truth in Lending Act be denied;
2. Plaintiff's motions for default judgment and motion for writ of mandamus be denied (Doc. Nos. 35, 56 and 92);
3. Plaintiff's motion for entry of judgment be denied (Doc. No. 82) 4. The motion for summary judgment of the defendants Perry S. Luthi, Sr., Desmine Sartain a/k/a Dee Dee Sartain, Luthi Mortgage Co., Inc., Carolina Tax Service, Luthi Construction Co., Liberty Funding, General Funding, Perry S. Luthi, Jr., Martha Pace, Lori Murphy, Pete Peterson, Michael Hurlburt, and Kimberly Ray (Doc. No. 71) be granted;
5. Summary judgment be granted sua sponte as to all claims against Carol A. Simpson for the reasons discussed herein; and
6. Summary judgment be granted sua sponte as to all claims against Ira Handy, Handy's Moisture and Pest Control, Ron Platt, Marsha Platt, and Sonny Ninan for the reasons discussed above.
(R & R dated Feb. 15, 2008 at 15.)1 As noted, the Record contains three Reports and Recommendations ("R & R") of a United States Magistrate Judge which were made in accordance with 28 U.S.C. § 636(b)(1)(B). A dissatisfied party may object, in writing, to an R & R within ten days after being served with a copy of that report. 28 U.S.C. § 636(b)(1). On or about February 22, 2008, Plaintiff filed objections to the Magistrate Judge's recommendation that Plaintiffs Motions for Summary Judgment with respect to Defendants Carol Simpson, Ira Handy, Handy's Moisture and Pest Control, Sonny Ninan, Ronald Platt, and Marsha Platt be denied. (See Doc. No. [135].) Then, on March 6, 2008, Plaintiff filed a Motion to Consolidate his objections, such that he would be able to respond to all R & Rs in one document. The court granted this motion and extended the time Plaintiff had to file objections to all three R & Rs. The court's order indicated that Plaintiff had up to and including March 22, 2008, in which to file any objections and that no further extensions would be granted. (See Doc. No. [141].)2
When no additional objections were filed, the court considered the objections filed on February 22, 2008 as the only objections filed in the case. On March 26, 2008, the court issued an order denying [33] Plaintiffs Motion to Certify Class; denying [67, 68, and 69] Plaintiffs Motions for Summary Judgment; denying [70] Plaintiffs Motion for Partial Summary Judgment as to his claim under the Truth in Lending Act; denying [35, 56, and 92] Plaintiffs Motions for Default Judgment and for Writ of Mandamus; denying [82] Plaintiffs Motion for Entry of Judgment; granting [71] the Motion for Summary Judgment filed by Defendants Perry S. Luthi, Sr., Desmine Sartain a/k/a Dee Dee Sartain, Luthi Mortgage Company, Inc., Carolina Tax Service, Luthi Construction Company, Liberty Funding, General Funding, Perry S. Luthi, Jr., Martha Pace, Lori Murphy, Pete Peterson, Michael Hulburt, and Kimberly Ray; granting summary judgment sua sponte in favor of Defendant Carol A. Simpson; and granting summary judgment sua sponte in favor of Defendants Ira Handy, Handy's Moisture and Pest Control, Ron Platt, Marsha Platt, and Sonny Ninan. (See Doc. No. [144].)
After the court entered this order, it appeared that Plaintiff had filed objections to all three Reports and Recommendations. Although it is not clear exactly when Plaintiff filed his objections, they were timely filed. Thus, in an order dated April 8, 2008, the court vacated its order dated March 26, 2008 and reinstated the matter for consideration of Plaintiffs objections.
Plaintiff filed the instant suit on August 2, 2006, and although he is an inmate at the Tyger River Correctional Institution, the case sub judice does not appear to be related to his confinement.3 Rather, the allegations of Plaintiff's Complaint concern real estate transactions in which he was involved in Greenville County in 2004, prior to his incarceration. Before being incarcerated, Plaintiff was a residential building contractor in Greenville County, and he purchased three vacant lots in the River Run subdivision in Greenville County from Liberty Funding, Inc., in 2004. The Defendants in this case were involved in the financing, construction, and litigation surrounding the purchase of these three lots and construction of dwellings on two of them.
When Plaintiff purchased these three lots in the River Run subdivision, his stated purpose was to build houses on the lots for resale.4 Plaintiff borrowed the purchase money for the lots from Luthi Mortgage Company, and Plaintiff also borrowed money to pay the cost of construction. Each loan was secured by a mortgage. Plaintiff purchased River Run lot number 19 on February 26, 2004, and the total amount of the loan was $82,099.20, of which $49,080.00 was available for draws as construction progressed. All of these draws were advanced to Plaintiff by April 4, 2004. On June 29, 2004, Luthi Mortgage Company filed a Lis Pendens and a Summons and Complaint seeking to foreclose for violating the terms of the note and mortgage. The Master in Equity for Greenville County granted judgment against Jones, and the property was sold to Luthi Mortgage Company at auction.5
Plaintiff purchased River Run lot number 5 on March 11, 2004. The total loan was $80,462.55, of which $51,960.00 was available for draws as construction progressed. There appears to be a dispute concerning the remainder of the facts about lot number 5. An affidavit of Mr. Luthi, Sr., indicates that none of the construction money was advanced since work never began on the planned house, and Jones signed a deed to Luthi Mortgage Company in lieu of foreclosure on May 10, 2005. (See Luthi Aff.) However, Plaintiff submits in his Objections that he could not have signed a deed to Luthi Mortgage Company on May 10, 2005, because he was incarcerated at that time. (Objections at 10.) He also states, "[H]ad the Plaintiff signed any transfer of any property in lieu, to Luthi Mortgage Company, it was certainly not voluntarily and without any compensation whatsoever." (Id.)
Plaintiff purchased River Run lot number 10 on April 26, 2004. The total loan was $80,462.55, of which $51,960.00 was available for draws as construction progressed. Of those construction funds, $24,061.60 was drawn, with the final draw occurring on November 4, 2004.6 Further draws were denied for lack of progress on the house and because mechanic liens revealed the money previously advanced had not been used to pay subcontractors and vendors as required. Luthi Mortgage Company filed a Lis Pendens and a Summons and Complaint seeking to foreclose on the property on December 16, 2004. The Master in Equity for Greenville County granted judgment against Plaintiff, and the property was sold to Luthi Mortgage Company at auction on June 30, 2005.7
As the Magistrate Judge noted in his R & R of February 15, 2008, the Complaint is jumbled, and it is difficult to ascertain Plaintiffs claims and to determine against which defendant or defendants the claims are alleged. (See Compl.; see also R & R dated Feb. 15, 2008, at 3.) In the "Jurisdiction" section of his Complaint, Plaintiff lists several federal statutes: 42 U.S.C. § 1983; the Racketeer Influenced and Corrupt Organization ("RICO") Act; Truth in Lending Act; Federal Trade Commission Act; Clayton Act; Sherman Antitrust Act; the mail fraud statute; the wire fraud statute; and the Real Estate Settlement Procedures Act ("RESPA"). (See Compl.) There is a section of the Complaint entitled "Complaint on Promissory Note," wherein Plaintiff demands judgment against the Defendants in the amount of $560,000, plus interest and costs, asserting the defendants owe him the amount of all three notes as well as any improvements on the three lots. (Compl. at 9.) Another section of the Complaint is entitled "Petition for Declaratory Judgment," and that section "demands a declaratory judgment against defendants for the sum of $560,000.00 plus interest and costs." (Id. at 10.) The Complaint also lists the following causes of action: (1) fraud; (2) civil conspiracy; (3) misrepresentation; (4) extortion; (5) deceit; and (6) violation of fiduciary duty. (See Compl.)
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