Robinson v. Deutsche Bank Nat'l Trust Co., 5:12-CV-590-F
| Decision Date | 09 April 2013 |
| Docket Number | No. 5:12-CV-590-F,5:12-CV-590-F |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | SHARLENE Y. ROBINSON, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR ARGENT SECURITIES TRUST, ASSET-BACKED PASS-THROUGH CERTIFICATE SERIES 2006-M1 and HOMEWARD RESIDENTIAL INC. F/K/A AMERICAN HOME MORTGAGE SERVICING, INC., Defendants. |
This matter is before the court on Plaintiff Sharlene Robinson's Motion for Preliminary Injunction, found within Docket Entry 1 - 1, and the Motion to Dismiss [DE-14] filed by Defendants Deutsche Bank National Trust Company as Trustee for Argent Securities Trust, Asset-Backed Pass-Through Certificates Series 2006-M1 ("Deutsche Bank") and Homeward Residential, Inc. f/k/a American Home Mortgage Servicing, Inc. ("Homeward") (collectively, "Defendants"). Both motions are ripe for disposition.
Plaintiff initiated this action by filing a Complaint against Defendants in the North Carolina General Court of Justice, Superior Court Division in Wake County. Plaintiff asserts various state law claims against Defendants arising out of Plaintiff s inability to obtain a modification of her homemortgage and the eventual foreclosure on her home. While the action was pending before it, the Wake County Superior Court entered a Temporary Restraining Order on August 9, 2012, enjoining Defendants from selling or otherwise transferring title to the property at issue in this action. See August 9, 2012, Temporary Restraining Order [DE-1-1] at p. 74.
On September 7, 2012, Defendants filed a Notice of Removal [DE-1] in this court. On September 11, 2012, after being notified of the action, the undersigned issued an Order [DE-6] noting that the exhibits filed with the Notice of Removal did not indicate whether a hearing had been held on Plaintiff's Motion for Preliminary Injunction, which was filed in the Wake County Superior Court. The September 11, 2012, Order directed Defendants to file a notice informing the court of the status of Plaintiff's Motion for Preliminary Injunction, and setting a response deadline to the motion if the Wake County Superior Court had not yet ruled on that motion. In their timely response [DE-7] to the September 11, 2012, Order, Defendants stated that prior to the removal of this action, the Wake County Superior Court had extended the Temporary Restraining Order through September 24, 2012, but had not conducted a hearing on the Motion for Preliminary Injunction. The parties thereafter filed consent motions [DE-8; DE-9] to extend the time for Defendants to file an Answer and a response to the Motion for Preliminary Injunction, both of which were allowed. See September 14, 2012, Order [DE-10]; September 19, 2012, Order [DE-12]. The parties also filed a consent motion [DE-11] to extend the Temporary Restraining Order until such time as the court rules on the Motion for Preliminary Injunction, which was allowed by the court [DE-13].
On September 28, 2012, Defendants filed a Motion to Dismiss [DE-14] the Complaint in this action, and their response [DE-16] to the Motion for Preliminary Injunction. In their memorandum in support [DE-15] of the Motion to Dismiss, Defendants contend portions of Plaintiff's Complaintare an attempt to re-litigate issues that have already been judicially determined by the North Carolina state courts and should therefore be dismissed for lack of subject matter jurisdiction. Defendants also contend that Plaintiff fails to state any claim in the Complaint. Plaintiff filed her response [DE-17] to the Motion to Dismiss, but did not file any reply in support of her Motion for Preliminary Injunction. Defendants timely filed a reply [DE-19] in support of the Motion to Dismiss, and the motions are therefore ripe for ruling.
The following facts are alleged in the Complaint. On February 4, 2000, Plaintiff and her now ex-husband purchased a home located at 4219 Viewmont Drive in Raleigh, North Carolina. Compl. ¶ 4. Between the purchase of the home in February of 2000 and May 23, 2006, Plaintiff and her then-husband refinanced their home mortgage six times. Compl. ¶ 5. In the sixth refinancing on May 23, 2006, Plaintiff and her then-husband entered into a loan transaction secured by her home, and signed a Note with a principal balance of $116,000.00, made payable to Argent Mortgage Company ("Argent").1 Compl. ¶ 5. The Note was secured by a Deed of Trust. Compl. ¶ 5. Plaintiff later separated from her husband but continued to live in the home, and in 2011, she and her ex-husband executed a deed to the property transferring ownership to Plaintiff alone. Compl. ¶¶ 21-22.
Plaintiff had difficulty making the mortgage payments, and applied for a loan modification from her loan servicer, Defendant Homeward, in late 2010 or early 2011. Compl. ¶¶ 23, 25-27. In May of 2011, Defendant Homeward offered Plaintiff a loan modification pursuant to the federalHome Affordable Modification Program ("HAMP"). Compl.¶ 30, 33. Plaintiff alleges that "HAMP creates a system whereby the government subsidizes the cost of mortgage modifications on lenders, in exchange for the servicers' participation in a standard process for mortgage modification" and that "[t]o opt into HAMP, a servicer must execute a Servicer Participation Agreement"("SPA"). Compl. ¶ 33. Plaintiff alleges the 2011 loan modification offered to her did not comply with HAMP's affordability requirements, which she contends requires an offered modification to reduce the monthly payment to 31% of a borrower's gross income. Compl. ¶ 35. Rather, she contends the 2011 loan modification offered by Defendant Homeward required monthly payments amounting to 45% of her gross monthly income. Compl. ¶ 35.
Plaintiff was not able to pay her monthly mortgage payments under the 2011 modification, and she contacted Defendant Homeward in or around March of 2012 to request another loan modification. Compl. ¶ 36. She contends that Defendant Homeward incorrectly informed her that she could not apply for another loan modification until May of 2012. Compl. ¶¶ 36-39. After contacting Defendant Homeward on May 4, 2012, Plaintiff received a loan modification packet informing her she had 30 days to submit her paperwork to Defendant Homeward for a loan modification. Compl. ¶ 43. Plaintiff submitted her application on May 30, 2012. Compl. ¶ 50.
Meanwhile, Defendants commenced foreclosure proceedings against Plaintiff's home on February 29, 2012. Compl. ¶ 44. A foreclosure hearing took place on May 7, 2012, but Plaintiff chose not to attend, "believing that the only options that would enable her to keep her home were a loan modification or a Chapter 13 bankruptcy." Compl. ¶ 46. Plaintiff alleges that she contacted a bankruptcy attorney in or around March of 2012, and planned to file a Chapter 13 bankruptcy to save her home if she was not able to receive consideration for a loan modification. Compl. ¶ 40.At the May 7, 2012, foreclosure hearing, the Assistant Clerk of Superior Court issued an order allowing the foreclosure sale. Compl. ¶ 47.
Plaintiff contends Defendant Homeward advised her on May 29, 2012, that the foreclosure sale of her home was scheduled to take place on June 6, 2012, and that she was told she needed to submit the loan modification documentation before that date to keep the sale from taking place. Compl. ¶ 49. Plaintiff thereafter contacted Defendant Homeward on June 4, 2012, to confirm that it had received her paperwork. Compl. ¶ 51. Plaintiff alleges that during the June 4, 2012, phone call, Defendant Homeward informed her that it had received her paperwork, but it required additional documents. Compl. ¶ 52. She also alleges that an employee or agent of Defendant Homeward told her that no foreclosure sale was scheduled and no sale of her home would take place pending consideration of her application for a loan modification. Compl. ¶ 52. Plaintiff faxed additional documents to Defendant Homeward on June 4, 2012. Compl. ¶ 54. She also proceeded to cancel an appointment with her Chapter 13 bankruptcy attorney because she believed, based on Defendant Homeward's representations, that it would consider her application for a loan modification before proceeding to sell her home. Compl. ¶ 55.
Defendant Homeward did not, however, stop the foreclosure sale, and the Substitute Trustee conducted the sale on June 6, 2012. Compl. ¶ 56. Defendant Deutsche Bank purchased the home for $75,000. Compl. ¶¶ 56-57. The deed to the home was transferred to Deutsche Bank on June 20, 2012. Compl. ¶ 59. On that same date, Plaintiff first became aware that her home had been sold when she received a flyer from a real estate agent informing her the home had been foreclosed upon and offering her "cash for keys," an offer of payment of a sum of money in exchange for signing an agreement to move out the property immediately. Compl. ¶ 60. Plaintiff thereafter contacted theSubstitute Trustee and Defendant Homeward to find out why the sale had been conducted. Compl. ¶ 62.
Plaintiff was scheduled to be evicted from her home on August 13, 2012, but State Superior Court Judge G.W. Abernathy issued a Temporary Restraining Order enjoining the eviction. As stated above, the parties have agreed to keep the terms of the Temporary Restraining Order in place pending this court's ruling on Plaintiff's Motion for Preliminary Injunction.
Because the existence of subject matter jurisdiction is a threshold issue, this court must address Defendants' Motion to Dismiss pursuant to Rule 12(b)(1) before addressing the merits of the case. See Steel Co. v. Citizens for a Better Env 7, 523 U.S. 83, 95-102 (1998); accord Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999). Subject matter jurisdiction is both a constitutional and statutory requirement which restricts federal judicial power to a limited set of cases and...
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