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Sweeris v. Carrington Mortgage Services, LLC

United States District Court, N.D. West Virginia, Martinsburg

October 23, 2019

JAMES B. SWEERIS, Plaintiff,
v.
CARRINGTON MORTGAGE SERVICES, LLC and DOES 1 TO 50, Defendants.

          REPORT AND RECOMMENDATION

          ROBERT W. TRUMBLE UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Pending before the Court is Plaintiff James B. Sweeris's (“Plaintiff”) pro se Motion [ECF No. 2] for Leave to Proceed In Forma Pauperis.[1] Because Plaintiff seeks to proceed in forma pauperis, the undersigned must conduct a preliminary review to determine whether Plaintiff's pro se Complaint [ECF No. 1] sets forth any viable claims. See 28 U.S.C. § 1915(e)(2)(B). Because the undersigned concludes that Plaintiff's complaint fails to state a claim upon which relief can be granted, the undersigned recommends that Plaintiff's complaint be dismissed, without prejudice, and Plaintiffs' motion to proceed in forma pauperis be denied as moot.

         II. THE COMPLAINT

         Other than the stated amount in controversy, this complaint is identical to the three previous complaints filed by the Plaintiff.[2] The subject of Plaintiff's complaint is a piece of land located at 42 Mopar Avenue, Harpers Ferry, West Virginia 25425 (“42 Mopar Avenue”). See generally ECF No. 1. Plaintiff alleges that there is a “cloud on all title activity” regarding 42 Mopar Avenue because a mortgage note and a deed of trust have taken “divergent paths.” Id. at 4-5. Plaintiff alleges that this divergence of paths occurred as a result of the mortgage crisis circa 2010. Id. at 4. Plaintiff alleges that “Defendants' have no legal right, title, or interest in real property which is the subject matter of this action . . . .” Id. at 5.

         Plaintiff further alleges that Defendant violated his due process and constitutional rights by following improper mortgage company procedures. Id. Plaintiff claims that Defendant improperly serviced the mortgage note and/or deed of trust through an independent broker/realtor and followed improper noticing procedures. Id. Plaintiff also alleges fraud, negligence, and misrepresentation on account of Defendant's “multiple violations of ignoring proper loan procedures.” Id.

         In his prayer for relief, Plaintiff states that Defendant has no legal right, title, or interest in 42 Mopar Avenue. Id. Plaintiff also seeks monetary and punitive damages in the amount of $150, 000. Id.

         IIII. LEGAL STANDARD

         When filing a lawsuit in federal court, the plaintiff is required to pay certain filing fees. The court has the authority to allow a case to proceed without the prepayment of fees “by a person who affirms by affidavit that he or she is unable to pay costs . . . .” L.R. Gen. P. 3.01. The plaintiff files this affidavit along with her request or motion for leave to proceed in forma pauperis. Id. The Supreme Court of the United States has explained that the purpose of the “federal in forma pauperis statute . . . is designed to ensure that indigent litigants have meaningful access to the federal courts.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).

         When a plaintiff seeks to proceed in forma pauperis, the court conducts a preliminary review of the lawsuit before allowing the case to proceed. See 28 U.S.C. § 1915(e). This includes cases filed by non-prisoners. See Michau v. Charleston Cnty., S.C., 434 F.3d 725, 727 (4th Cir. 2006) (holding that the district court did not abuse its discretion when it dismissed the non-prisoner complaints under 28 U.S.C. § 1915(e)(2)(B)). The court must dismiss a case at any time if the court determines that the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). A case is often dismissed sua sponte (i.e., on the court's own decision) before the defendant is notified of the case “so as to spare prospective defendants the inconvenience and expense of answering such complaints.” Neitzke, 490 U.S. at 324. When reviewing pro se complaints, the Court must construe them liberally. See Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         As stated above, under the federal in forma pauperis statute, the court may dismiss a case if the complaint is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). A complaint is frivolous if it is without “an arguable basis either in law or fact.” Neitzke, 490 U.S. at 325. A complaint filed in forma pauperis which fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) is not automatically frivolous. See id. at 328. Cases should only be dismissed as frivolous when the legal theories are “indisputably meritless, ” or where the claims rely on factual allegations which are “clearly baseless.” Id. at 327; see also Denton v. Hernandez, 504 U.S. 25, 32 (1992). This includes claims where the plaintiff has little or no chance of success. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).

         The federal in forma pauperis statute allows a court to sua sponte dismiss a complaint that “fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). Federal Rule of Civil Procedure 8(a)(2) “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Although a complaint need not assert “detailed factual allegations, ” it must contain “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id. at 555 (citations omitted). To survive dismissal for failure to state a claim, the complaint must raise a right to relief that is more than speculative. Id. In other words, the complaint must contain allegations that are “plausible” on their face, rather than merely “conceivable.” Id. at 555, 570. Therefore, in order for a complaint to survive dismissal for failure to state a claim, the plaintiff must “allege facts sufficient to state all the elements of [his or] her claim.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir.2002)); Iodice v. United States, 289 F.3d 279, 281 (4th Cir. 2002). A “claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, a well-pleaded complaint must offer more than “a sheer possibility that a defendant has acted unlawfully” in order to meet the plausibility standard and survive dismissal for failure to state a claim. Id.; see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).

         IV. DISCUSSION

         A. ...


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