Saimplice v. Ocwen Loan Servicing Inc.

368 F. Supp. 3d 858
CourtDistrict Court, E.D. North Carolina
DecidedJanuary 23, 2019
DocketNo. 5:18-CV-308-D
StatusPublished
Cited by7 cases

This text of 368 F. Supp. 3d 858 (Saimplice v. Ocwen Loan Servicing Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Saimplice v. Ocwen Loan Servicing Inc., 368 F. Supp. 3d 858 (E.D.N.C. 2019).

Opinion

JAMES C. DEVER III, United States District Judge

On June 27, 2018, Chilove Chery Saimplice ("Saimplice" or "plaintiff"), proceeding pro se, filed a complaint against Ocwen Loan Servicing Inc.1 ("Ocwen Loan"), One *861West Bank2 ("OneWest Bank"), Indy Mac3 ("IndyMac"), and Trustee Services of Carolina4 ("TSC"; collectively "defendants") [D.E. 1]. On July 23, 2018, Ocwen Loan, OneWest Bank, and IndyMac moved to dismiss for failure to state a claim [D.E. 11], filed a memorandum in support [D.E. 12], and answered the complaint [D.E. 13]. On August 13, 2018, Saimplice responded in opposition [D.E. 18]. On August 14, 2018, TSC moved to dismiss the complaint [D.E. 19], and TSC filed a memorandum in support [D.E. 20]. On August 14, 2018, the court notified Saimplice about the motion, the response deadline, and the consequences of failing to do so [D.E. 21]. See Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam). Saimplice did not respond. As explained below, the court grants defendants' motions to dismiss.

I.

Saimplice owned a home located at 4605 Marathon Lane in Raleigh, North Carolina. See Compl., Ex. C [D.E. 1-8] 2. On April 16, 2011, a tornado damaged her home. See id. at 4; [D.E. 18] 2. To repair the damage, Saimplice sought coverage from State Farm Insurance Company ("State Farm"). See Compl., Ex. C [D.E. 1-8]; [D.E. 18] 2. State Farm sent Saimplice a check covering the cost of repairs. See Compl., Ex. C [D.E. 1-8]; [D.E. 18] 2. Saimplice signed the check and sent it to IndyMac, which at the time serviced the mortgage on her home, for its signature. See Compl., Ex. C [D.E. 1-8]; [D.E. 18] 2. IndyMac never returned the check to Saimplice, and Saimplice could not repair the storm damage to her home. See [D.E. 18] 2. IndyMac is a division of OneWest Bank. On December 1, 2013, IndyMac transferred the servicing of Saimplice's mortgage loan to Ocwen Loan. See Compl., Ex. [D.E. 1-19] 43.

Saimplice fell behind on her mortgage payments and, in 2018, Deutsche BankNational Trust Company, the mortgagee on the loan, initiated foreclosure proceedings. See Compl., Ex. A-3 [D.E. 1-3]; Compl., Ex. I [D.E. 1-13] 3-4. On June 7, 2018, the Wake County Superior Court authorized a foreclosure sale of Saimplice's property because she was in default on the mortgage and had not "shown [any] valid legal reason why foreclosure should not commence." Compl., Ex. A-3 [D.E. 1-3]. On July 9, 2018, the property sold at a foreclosure sale. See Compl., Ex. B-3 [D.E. 1-7]. On July 23, 2018, TSC recorded a deed to the property as substitute trustee. See [D.E. 20] 12; Ex. H [D.E. 20-8] 2-4; cf. Compl., Ex. B [D.E. 1-4].

Saimplice alleges that she did not miss any mortgage payments. See Compl. [D.E. 1] 3; Compl., Ex. 19 [D.E. 1-19]. Saimplice also alleges that "the bank" demanded duplicate payments on her mortgage, kept approximately $ 49,000 in insurance proceeds for the 2011 storm damage to her home unlawfully, and withdrew money from her personal checking account without authorization. See Compl. [D.E. 1] 3. Finally, Saimplice asserts that defendants filed false documents concerning the foreclosure with the Wake County Superior Court. See id. at 8. Saimplice seeks $ 20 million in damages. See id. at 7.5

*862II.

A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-63, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012) ; Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quotation omitted); see Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences "in the light most favorable to the [nonmoving party]." Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, --- U.S. ----, 135 S.Ct. 2218,

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Bluebook (online)
368 F. Supp. 3d 858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saimplice-v-ocwen-loan-servicing-inc-nced-2019.