Nanya-Nashut, ex rel Hand v. Bankone, National Association Trustee, CIVIL ACTION NO. 03-4022 (E.D. Pa. 9/9/2003)

Decision Date09 September 2003
Docket NumberCIVIL ACTION NO. 03-4022.
PartiesNanya-Nashut, ex rel KEVIN HAND and Nanya-Adhiym, ex rel MILTON HAND, Plaintiffs v. BANKONE, NATIONAL ASSOCIATION TRUSTEE; HOMECOMINGS FINANCIAL; and PURCELL, KRUG & HALLER, Defendants.
CourtU.S. District Court — Eastern District of Pennsylvania
MEMORANDUM

ROBERT KELLY, Senior District Judge.

I. FACTUAL SUMMARY

On July 8, 2003, Plaintiffs filed their Complaint pro se against BankOne, National Association Trustee, Homecomings Financial and Purcell, Krug & Haller ("Purcell")(collectively the "Defendants").1 Plaintiffs' Complaint arises from a foreclosure of real property. The Defendants are the foreclosing mortgage lenders and their respective counsel.2

Defendant Homecomings Financial is the servicing agent of BankOne, National Association, Trustee. They commenced a foreclosure action in April of 2002 against the property at issue in this case. Apparently, Defendant Homecomings Financial also was the purchaser of the property at the sheriff's sale in May, 2003. Reading Plaintiffs' Complaint liberally, the Court finds that Plaintiffs assert numerous claims against the Defendants arising from the property foreclosure. Specifically, the Court finds that the Plaintiffs assert claims of fraud, violations of the Fourth and Fifth Amendments, violations of 42 U.S.C. § 1983, 42 U.S.C. § 1985, 42 U.S.C. § 1986, along with a claim of attorney malpractice. Additionally, they assert the Defendants slandered Plaintiffs' title to the property. Finally, Plaintiffs assert they are entitled to remedies under 18 U.S.C. § 1964. Defendants have moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the entire case against them, alleging that the Plaintiffs have failed to state a claim. For the foregoing reasons, this Court will dismiss Plaintiffs' Complaint.

II. STANDARD OF REVIEW

A motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), tests the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A court must determine whether the party making the claim would be entitled to relief under any set of facts that could be established in support of his or her claim. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)(citing Conley, 355 U.S. at 45-46): see also Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3d Cir. 1985). Pertaining to pro se complaints, courts must hold them "to less stringent standards than those drafted by attorneys." Bieros v. Nicola, 839 F. Supp. 332, 334 (E.D. Pa. 1993). A pro se plaintiff's claims can be dismissed under Rule 12(b)(6) only "if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." McDowell v. Del. State Police, 88 F.3d 188, 189 (3d Cir. 1996)(quotations omitted). In considering a motion to dismiss, all allegations in the complaint must be accepted as true and viewed in the light most favorable to the non-moving party. Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989)(citations omitted). "On the other hand, a judge may not become a surrogate attorney for the party, even one who is proceeding pro se. Taylor v. Diznoff, 633 F. Supp. 640, 641 (W.D. Pa. 1986)(quoting Mazur v. Pa. Dept. of Transp., 507 F. Supp. 3, 4 (E.D. Pa. 1980), aff'd 649 F.2d 860 (3d Cir. 1981)). "A pro se plaintiff must abide by the Federal Rules of Civil Procedure and when confronted by motions to dismiss must articulate reasons why the motions should not be granted." Id. (quoting Mazur, 507 F. Supp. at 4).

III. DISCUSSION
A. FRAUD

The first claim the Court will examine is Plaintiffs' claim of fraud. Pursuant to Federal Rule of Civil Procedure 9(b), a claim for fraud must be plead with particularity. FED. R. CIV. P. 9(b). According to Rule 9(b), a plaintiff must plead "(1) a specific false representation of material fact; (2) knowledge by the person who made it of its falsity; (3) ignorance of its falsity by the person to whom it was made; (4) the intention that it should be acted upon; and (5) that the plaintiff acted upon it to his damage." Stevens v. Citigroup. Inc., No. CIV.A. 00-3815, 2000 WL 1848593 (E.D. Pa. Dec. 15, 2000)(citations omitted). In examining Plaintiffs' Complaint, the Court sees no allegations of any specific false representation of material fact on the part of the Defendants to the Plaintiffs. Rather, it appears that Defendants merely foreclosed on the property. Therefore, a claim for fraud has not been pled with particularity and cannot stand.

B. FOURTH AMENDMENT

The Plaintiffs allege the Defendants violated their Fourth Amendment rights. The Fourth Amendment provides the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV. Plaintiffs' do not affirmatively state what alleged actions by Defendants violated the Fourth Amendment, but it appears that the Plaintiffs are asserting that the Defendants unlawfully seized their property by foreclosing on it. The Fourth Amendment protections however, only protect against government action, not private action. See United States v. Jacobsen, 466 U.S. 109, 114-15 (1984)(citations omitted). Merely because Defendants engaged in an alleged unlawful state foreclosure proceeding does not make these Defendants state actors. See Buzzanco v. Lord Corp., 173 F. Supp.2d 376, 383 (W.D. Pa. 2001)(stating plaintiffs' claims that defendants misused state replevin procedure is not enough to establish defendants were state actors). Therefore, since no state action took place as to these Defendants, Plaintiffs' Fourth Amendment claim must also be dismissed.

C. FIFTH AMENDMENT

Plaintiffs next claim is that Defendants violated their Fifth Amendment rights. "The Fifth Amendment prohibits, in part, deprivations of property accomplished without due process of law." Mason v. Abington Township Police Dept. No. CIV. A. 01-1799, 2002 WL 31053827, at *5 (E.D. Pa. Sept. 12, 2002)(citing U.S. CONST. amend. V). However, "[t]he limitations of the [F]ifth [A]mendment restrict only federal governmental action and not the actions of private entities." Nguyen v. United States Catholic Conference, 719 F.2d 52, 54 (3d Cir. 1983)(citing Pub. Utils. Comm'n v. Pollak, 343 U.S. 451, 461 (1952)). Therefore, since the Fifth Amendment only restricts federal governmental action, Plaintiffs do not have a viable Fifth Amendment claim against the private Defendants.

D. SECTIONS 1983, 1985 AND 1986
1. Section 1983

Next, Plaintiffs allege the Defendants violated 42 U.S.C. § 1983. "In order to state a claim under Section 1983, a plaintiff must allege two things: 1) the violation of a right secured by the Constitution and laws of the United States; and 2) the commission of the deprivation by a person acting under color of state law." Buzzanco, 173 F. Supp.2d at 381 (citing West v. Atkins, 487 U.S. 42, 48 (1988)). "Under color of state law" has the same meaning as state action. Id (citing United States v. Price, 383 U.S. 787, 794 n. 7 (1966)). In examining Plaintiffs' Complaint, the Court cannot find any alleged action by the Defendants that rise to the level of state action. Even where a bank and an attorney utilize state foreclosure procedures, that will not constitute state action. See Shipley v. First Fed. Sav. & Loan Ass'n of Del., 703 F. Supp. 1122, 1129-31 (D. Del. 1988), aff'd 877 F.2d 57 (3d Cir. 1989)(holding Bank and attorney who filed foreclosure action against real property did not engage in state action for purposes of Section 1983). Since the Plaintiffs have failed to assert the Defendants are state actors, Plaintiffs' Section 1983 claim against Defendants is dismissed.

2. Section 1985

Next, the Court will examine Plaintiffs' Section 1985 claim. In order to state a claim under Section 1985, a plaintiff must allege the following four elements:

(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.

Moles v. Griffy, No. 00-2147, 2001 WL 1152984, at *4 (E.D. Pa. Sept. 18, 2001)(citing United Bhd. of Carpenters & Joiners of Am., Local 610. AFL-CIO v. Scott, 463 U.S. 825, 828-29 (1983)). "Moreover, there must be some racial or other invidiously discriminatory animus behind the conspirators' actions." Id. (citing Scott, 463 U.S. at 829). Furthermore, "[i]t is well established that § 1985(3) does not itself create any substantive rights; rather, it serves only as a vehicle for vindicating federal rights and privileges which have been defined elsewhere." Brown v. Philip Morris Inc., 250 F.3d 789, 805 (3d Cir. 2001)(citing Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366 (1979)). Since Plaintiffs' Section 1983 claim is dismissed, it therefore follows that their Section 1985 claim must also be dismissed.3 See Moles, 2001 WL 1152984, at *4 (stating plaintiff's inability to sustain claim under Section 1983 necessarily causes his Section 1985 conspiracy claim grounded in same underlying action to fail as well).

3. Section 1986

Plaintiffs' also assert a Section 1986 claim. "Without a properly pled claim under § 1985, a plaintiff cannot bring a § 1986 claim." Toth v. Bristol Township, 215 F. Supp.2d 595, 599 (E.D. Pa. 2002)(citing Clark v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir. 1994)). For the reasons previously stated, the Court has dismissed Plaintiffs' Section 1985 claim, therefore, it follows that their Section 1986 claim must also be dismissed since `"transgressions of § 1986 by definition depend upon a preexisting violation of § 1985.'" Clark, 20 F.3d at 1295 (quoting Rogin v. Bensalem Township, 616 F.2d 680, 696 (3d Cir. 1980)).

E. ATTORNEY MALPRACTICE

The Plaintiffs'...

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