Toney v. LaSalle Bank Nat'l Ass'n, C.A. No. 3:11–1686–MBS.

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtMARGARET B. SEYMOUR
Citation896 F.Supp.2d 455
PartiesLaura TONEY, Plaintiff, v. LaSALLE BANK NATIONAL ASSOCIATION, Trustee for Lehman Brothers Structured Asset Investment Loan Trust Sail 2005, Ocwen Federal Bank, a/k/a AltiSource Homes, Defendants.
Docket NumberC.A. No. 3:11–1686–MBS.
Decision Date25 September 2012

896 F.Supp.2d 455

Laura TONEY, Plaintiff,
v.
LaSALLE BANK NATIONAL ASSOCIATION, Trustee for Lehman Brothers Structured Asset Investment Loan Trust Sail 2005, Ocwen Federal Bank, a/k/a AltiSource Homes, Defendants.

C.A. No. 3:11–1686–MBS.

United States District Court,
D. South Carolina,
Columbia Division.

Sept. 25, 2012.


[896 F.Supp.2d 460]


Laura Toney, Bishopville, SC, pro se.

Robert A. Muckenfuss, McGuireWoods LLP, Charlotte, NC Sean A. O'Connor, Finkel Law Firm, Charleston, SC, for Defendants.


ORDER AND OPINION

MARGARET B. SEYMOUR, Chief Judge.

Plaintiff Laura Toney (“Plaintiff”) filed this action pro se against Defendants, LaSalle Bank National Association, Trustee for Lehman Brothers Structured Asset Investment Loan Trust Sail 2005 (“LaSalle”), and Ocwen Federal Bank a/k/a AltiSource Homes (“Ocwen”) (collectively “Defendants”), alleging claims under the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601

[896 F.Supp.2d 461]

1667f, arising out of a foreclosure action instituted against her by Defendants. (ECF No. 1.) Plaintiff also seeks a declaratory judgment and asserts state law claims for intentional infliction of emotional distress, deceptive and unfair trade practices, gross negligence, fraud, and fraudulent transfer. ( Id.) This matter is before the court on Plaintiff's motions for entry of default against Defendants pursuant to Fed. R. Civ. P. 55(a); LaSalle's motion to dismiss Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6), 8, and 9(b); Ocwen's motion to dismiss Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6); and LaSalle's motion for sanctions against Plaintiff pursuant to Fed. R. Civ. P. 11. (ECF Nos. 20, 21, 27, 28, 51, 61.)

In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02 D.S.C., the matter was referred to United States Magistrate Judge Joseph R. McCrorey for pretrial handling. On August 9, 2012, the Magistrate Judge issued a Report and Recommendation in which he recommended that the court deny Plaintiff's motions for entry of default, grant LaSalle's motion to dismiss, grant Ocwen's motion to dismiss, and deny LaSalle's motion for sanctions without prejudice. (ECF No. 79.) Plaintiff filed objections to the Report and Recommendation on August 22, 2012 and August 27, 2012, asking the court to reject the Magistrate Judge's recommendation. (ECF Nos. 81, 84.) For the reasons set forth below, the court adopts the Report and Recommendation of the Magistrate Judge, GRANTS the motions to dismiss of LaSalle and Ocwen, and DENIES LaSalle's motion for sanctions without prejudice and Plaintiff's motions for entry of default against LaSalle and Ocwen.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

The facts in the complaint as viewed in the light most favorable to Plaintiff are discussed in the Report and Recommendation. The court concludes, upon its own careful review of the record, that the Magistrate Judge's factual summation is accurate. The court adopts this summary as its own, and will only reference facts pertinent to the analysis of Plaintiff's claims.

On October 6, 2004, Plaintiff refinanced her house located at 729 Chatman Street in Bishopville, South Carolina (“the Property”). (ECF No. 1–1, pp. 38, 43.) During the closing, Plaintiff entered into and received a mortgage which was secured by the Property. ( Id.) On June 14, 2005, Plaintiff sent a letter to Ocwen stating her intention to rescind the loan due to the alleged occurrence of federal disclosure violations during the processing of the loan. (ECF No. 1–1, p. 1.) Plaintiff alleged that she was not provided any of the mandatory disclosures required by TILA prior to the closing. ( Id.; see also ECF No. 1, p. 3.)

On or about July 21, 2005, LaSalle, which had been assigned the mortgage by Ocwen, filed a lis pendens and complaint against Plaintiff, captioned Lasalle Bank v. Laura Toney, Case No.2005–CP–31–169, in the Court of Common Pleas of Lee County, South Carolina (the “Lee County Court”), seeking foreclosure of Plaintiff's mortgage and sale of the Property. (ECF No. 1–1, pp. 3–11.) On October 19, 2005, Plaintiff alleges that LaSalle finally responded to her notice of rescission letter. (ECF No. 1, p. 5.) Thereafter, LaSalle filed a motion for summary judgment on March 29, 2006. (ECF No. 1–1, p. 34.)

On February 16, 2007, the Lee County Court held a foreclosure hearing in the absence of Plaintiff or her attorney.1

[896 F.Supp.2d 462]

(ECF No. 1–1, p. 35.) On March 15, 2007, the Lee County Court entered an order finding that LaSalle “should have judgment of foreclosure of the mortgage and the mortgaged property should be ordered sold at public auction after due advertisement” and, as a result, granted summary judgment in favor of LaSalle in the foreclosure action. ( Id. at p. 40.) In support of the order granting summary judgment to LaSalle, the Lee County Court made the following findings of fact:

The Defendant Laura Toney alleges that she rescinded the loan by letter dated June 12, 2005. Pursuant to Title 15 Section 1635 of the U.S.Code, the obligor in a real estate secured consumer credit transaction shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms. The loan closing occurred on October 6, 2004, at which time the Defendant was provided the information and rescission forms. (Affidavit of Michael May filed March 29, 2006; Affidavit of Letia Benjamin). The information and rescission forms are signed by the Defendant Laura Toney to acknowledge that she was provided a copy of each at closing. Therefore, the Defendant's counterclaim that she rescinded the loan is without merit on its face since it is well outside the time to rescind permitted by law.
(ECF No. 1–1, pp. 37–38.)

On March 22, 2007, Plaintiff filed an application for a temporary restraining order, preliminary injunction, and permanent injunction in the Lee County Court. (ECF No. 52–2, pp. 8–13, 16–17.) On April 25, 2007, Plaintiff filed a motion for reconsideration of the foreclosure decision. (ECF No. 52–2, pp. 5–7.) On April 27, 2007, a notice of eviction was filed against Plaintiff and she was evicted from the Property shortly thereafter. (ECF No. 1–1, p. 49.) On May 7, 2007, the Property was sold at an auction to LaSalle. ( Id. at pp. 45–47.) After the sale of the Property and the denial of her motions, Plaintiff filed an appeal with the South Carolina Court of Appeals. Plaintiff states that her foreclosure case is currently pending with the South Carolina Supreme Court. (ECF No. 76, p. 3; see also ECF No. 51–2, pp. 1–2.)

On July 13, 2011, Plaintiff filed in this court a “Complaint to Set Aside Fraudulent Transfer, and Fraud; Declaratory Judgment for Entry of Default[,] Gross Negligence[,] Emotional Distress[,] Deceptive and Unfair Trade Practices.” (ECF No. 1.) Plaintiff alleges that she did not receive certain federal disclosures required by TILA at the time of her mortgage closing, including “choice of attorney notification, settlement statement, and good faith estimate.” ( Id. at p. 3.) Plaintiff alleges that Defendants' failure to make proper disclosures and failure to respond to her notice of rescission within twenty days resulted in Defendants losing their interest in the property. ( Id. at p. 5.) Further, Plaintiff alleges that Defendants' failure to respond to her notice of rescission within twenty days had the effect of reinstating Plaintiff's interest in the property and relieving her obligations under the original loan. ( Id. at pp. 5–8.) On July 13, 2011, Plaintiff filed a motion for a temporary injunction to enjoin Defendants from denying Plaintiff possession of the Property. (ECF No. 3.)

[896 F.Supp.2d 463]

On October 7, 2011, LaSalle filed a motion to extend its time to file an answer until October 21, 2011, which motion was granted by the court on October 11, 2011. (ECF Nos. 16, 18.) On October 19, 2011, Plaintiff moved for entry of default against Ocwen. (ECF No. 20.) On October 21, 2011, LaSalle filed a motion to dismiss Plaintiff's complaint. (ECF No. 21.) Plaintiff filed a second motion for entry of default against Ocwen on October 25, 2011. (ECF No. 27.) Additionally, on October 25, 2011, Plaintiff moved for entry of default against LaSalle. (ECF No. 28.) Plaintiff filed opposition to LaSalle's motion to dismiss on October 25, 2011, October 28, 2011, and November 2, 2011. (ECF Nos. 29, 30, 32.) On November 1, 2011, LaSalle filed opposition to Plaintiff's motion for entry of default. (ECF No. 31.) On December 28, 2011, Ocwen filed its answer to the complaint. (ECF No. 37.)

On February 27, 2012, the Magistrate Judge issued a Report and Recommendation in which he recommended denying Plaintiff's motion for temporary injunction, which recommendation was adopted by the court on March 22, 2012, 2012 WL 988061. (ECF Nos. 46, 57.) On March 7, 2012, LaSalle filed a motion for sanctions against Plaintiff, to which Plaintiff filed opposition on March 15, 2012. (ECF Nos. 51, 53.) On April 2, 2012, Plaintiff appealed the court's March 22, 2012 Order to the United States Court of Appeals for the Fourth Circuit. (ECF No. 62.) On April 6, 2012, Ocwen filed opposition to Plaintiff's motions for entry of default and a motion to dismiss the complaint. 2 (ECF Nos. 60, 61.) Plaintiff filed opposition to Ocwen's motion to dismiss on May 14, 2012. (ECF No. 76.)

Recently, on August 24, 2012, 475 Fed.Appx. 858 (4th Cir.2012), the Fourth Circuit affirmed the court's March 22, 2012 decision and issued the formal mandate of the court of appeals on September 17, 2012. (ECF Nos. 83, 89.)

II. LEGAL STANDARD AND ANALYSIS
A. Legal Standard
1. Magistrate Judge's Report and Recommendation

The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270–71, 96 S.Ct. 549, 46...

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19 practice notes
  • Cooper v. Brunswick Cnty. Sheriff's Dep't, No. 7:10–CV–14–D.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • September 27, 2012
    ...to a claim under North Carolina law), aff'd in part & rev'd in part on other grounds,362 N.C. 431, 666 S.E.2d 107 (2008); accord [896 F.Supp.2d 455]Buschi v. Kirven, 775 F.2d 1240, 1251–54 (4th Cir.1985); Iglesias v. Wolford, 539 F.Supp.2d 831, 835–36 (E.D.N.C.2008). Furthermore, in Nor......
  • Preferred Home Inspections, Inc. v. Bellsouth Telecomms., LLC, Civil Action No.: 3:14-cv-00673-MBS
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 24, 2014
    ...(8) the hearer's right to rely thereon; and (9) the hearer's consequent and proximate injury." Toney v. LaSalle Bank Nat'l Ass'n, 896 F. Supp. 2d 455 (D.S.C. 2012), aff'd, 512 F. App'x 363 (4th Cir. 2013); see also Regions Bank v. Schmauch, 582 S.E.2d 432, 444-45 (S.C. Ct. App. 2003). ......
  • John K. Fort, Chapter 7 Tr. for Int'l Payment Grp., Inc. v. Suntrust Bank, Case No.: 7:13-CV-1883-BHH
    • United States
    • U.S. District Court — District of South Carolina
    • August 25, 2016
    ...it knew it ought not to have done. (ECF No. 67-5 at 6 (citing Pilot Indus., 495 F. Supp. at 362; Toney v. LaSalle Bank Nat. Ass'n, 896 F. Supp. 2d 455 (D.S.C. Sept. 25, 2012); Steinke v. S.C. Dept. of Labor, Licensing & Reg., 336 S.C. 373, 520 S.E.2d 142, 153 (1999).) SunTrust avers tha......
  • Dingle v. Khan, 5:19-CV-129-D
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • February 20, 2020
    ...Cir. 2006) (applying Rule 12(b)(6) standard to doctrines of res judicata and collateral estoppel); Toney v. LaSalle Bank Nat. Ass'n, 896 F. Supp. 2d 455, 464 (D.S.C. 2012), aff'd, 512 F. App'x 363 (4th Cir. 2013) ("Res judicata is an affirmative defense and is treated as a basis for di......
  • Request a trial to view additional results
19 cases
  • Cooper v. Brunswick Cnty. Sheriff's Dep't, No. 7:10–CV–14–D.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • September 27, 2012
    ...to a claim under North Carolina law), aff'd in part & rev'd in part on other grounds,362 N.C. 431, 666 S.E.2d 107 (2008); accord [896 F.Supp.2d 455]Buschi v. Kirven, 775 F.2d 1240, 1251–54 (4th Cir.1985); Iglesias v. Wolford, 539 F.Supp.2d 831, 835–36 (E.D.N.C.2008). Furthermore, in Nor......
  • Preferred Home Inspections, Inc. v. Bellsouth Telecomms., LLC, Civil Action No.: 3:14-cv-00673-MBS
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 24, 2014
    ...(8) the hearer's right to rely thereon; and (9) the hearer's consequent and proximate injury." Toney v. LaSalle Bank Nat'l Ass'n, 896 F. Supp. 2d 455 (D.S.C. 2012), aff'd, 512 F. App'x 363 (4th Cir. 2013); see also Regions Bank v. Schmauch, 582 S.E.2d 432, 444-45 (S.C. Ct. App. 2003). ......
  • John K. Fort, Chapter 7 Tr. for Int'l Payment Grp., Inc. v. Suntrust Bank, Case No.: 7:13-CV-1883-BHH
    • United States
    • U.S. District Court — District of South Carolina
    • August 25, 2016
    ...it knew it ought not to have done. (ECF No. 67-5 at 6 (citing Pilot Indus., 495 F. Supp. at 362; Toney v. LaSalle Bank Nat. Ass'n, 896 F. Supp. 2d 455 (D.S.C. Sept. 25, 2012); Steinke v. S.C. Dept. of Labor, Licensing & Reg., 336 S.C. 373, 520 S.E.2d 142, 153 (1999).) SunTrust avers tha......
  • Dingle v. Khan, 5:19-CV-129-D
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • February 20, 2020
    ...Cir. 2006) (applying Rule 12(b)(6) standard to doctrines of res judicata and collateral estoppel); Toney v. LaSalle Bank Nat. Ass'n, 896 F. Supp. 2d 455, 464 (D.S.C. 2012), aff'd, 512 F. App'x 363 (4th Cir. 2013) ("Res judicata is an affirmative defense and is treated as a basis for di......
  • Request a trial to view additional results

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