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Lacey v. Wells Fargo Bank, N.A.

United States District Court, W.D. Tennessee, Western Division

October 7, 2014

Goldie Lacey and Dianne LACEY, PlaintiffS
v.
WELLS FARGO BANK, N.A., WILSON & ASSOCIATES, PLLC, Defendants. ,

REPORT AND RECOMMENDATION

TU M. PHAM, Magistrate Judge.

Before the court is the Motion to Dismiss filed by defendant Wilson & Associates, PLLC ("Wilson") on September 12, 2014. (ECF No. 16.) On September 29, 2014, plaintiffs Goldie Lacey and Dianne Lacey (the "Laceys") filed a document titled "Motion to Dismiss Defendants Motion to Dissmiss [sic] and Memorandum in Support, " which this court construes as a response in opposition to Wilson's motion. (ECF No. 18.) Wilson filed a reply on September 29, 2014. (ECF No. 21.) For the reasons below, it is recommended that Wilson's motion be granted.

I. PROPOSED FINDINGS OF FACT

This action relates to a non-judicial foreclosure of real property located at 7252 Shady Oaks Drive, in Bartlett, Tennessee. ("Property"). According to the complaint, on September 14, 2011, the Laceys received a written notice from Wilson, informing them that the Property was in foreclosure and that Wilson had been retained by defendant Wells Fargo Bank, N.A ("Wells Fargo"), to handle the foreclosure proceedings. The notice indicated that the Property would be sold at auction on October 14, 2011. The complaint alleges that the Laceys sent several Qualified Written Requests ("QWRs") to Wells Fargo. Through the QWRs, the Laceys requested that Wells Fargo investigate and conduct an audit on the account in order to "validate the debt so that it is accurate to the penny." The Laceys allege that the defendants either did not respond to the QWRs or did not respond appropriately. The complaint alleges that Wilson and Wells Fargo have violated the Real Estate Settlement Procedure Act, 12 U.S.C. § 2605(e) ("RESPA"), Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), engaged in fraud, violated the Laceys' due process rights, and cannot proceed with the foreclosure because it does not possess the original signed copy of the promissory note.

Wilson argues in its motion to dismiss that the Laceys' complaint does not satisfy the pleading standard under Rule 8 of the Federal Rules of Civil Procedure because the claims asserted by the Laceys cannot be clearly ascertained from the face of the complaint. Wilson further argues that the entire complaint should be dismissed under Rule 12(b)(6), as the Laceys have failed to set forth any facts that would support any claim against Wilson.

II. PROPOSED CONCLUSIONS OF LAW

A. Standard of Review

Rule 8(a)(2) requires "[a] pleading that states a claim for relief" to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint violates these provisions when it "is so verbose that the Court cannot identify with clarity the claim(s) of the pleader and adjudicate such claim(s) understandingly on the merits." Harrell v. Dirs. of Bur. of Narcotics & Dangerous Drugs , 70 F.R.D. 444, 446 (E.D. Tenn. 1975); see also Dillard v. Rubin Lublin Suarez Serrano, No. 12-2182-STA-dkv, 2013 WL 1314399, at *2 (W.D. Tenn. Mar. 28, 2013) (citing Flayter v. Wis. Dep't of Corr. , 16 F.App'x 507, 509 (7th Cir. 2001) (dismissing 116-page complaint pursuant to Rule 8(a)(2)); Vicom v. Harbridge Merch. Servs., Inc. , 20 F.3d 771, 775-76 (7th Cir. 1994) (criticizing district court for declining to dismiss amended complaint with prejudice pursuant to Rule 8(a) and noting that "[a] complaint that is prolix and/or confusing makes it difficult for the defendant to file a responsive pleading and makes it difficult for the trial court to conduct orderly litigation); Plymale v. Freeman, No. 90-2202 , 1991 WL 54882, at *1 (6th Cir. Apr. 12, 1991) (district court did not abuse its discretion in dismissing with prejudice "rambling" 119-page complaint containing nonsensical claims); Jennings v. Emry , 910 F.2d 1434, 1436 (7th Cir. 1990) ("A... complaint must be presented with intelligibility sufficient for a court or opposing party to understand whether a valid claim is presented and if so what it is. And it must be presented with clarity sufficient to avoid requiring a district court or opposing party to forever sift through its pages in search of that understanding.") (citations omitted)).

In assessing whether the complaint in this case states a claim on which relief may be granted, the standards under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as stated in Ashcroft v. Iqbal , 556 U.S. 662, 678-79 (2009), and Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555-57 (2007), are applied. Hill v. Lappin , 630 F.3d 468, 470B71 (6th Cir. 2010). "Accepting all well-pleaded allegations in the complaint as true, the Court consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.'" Williams v. Curtin , 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal , 556 U.S. at 681) (alteration in original). "[P]leadings that... are no more than conclusions[] are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal , 556 U.S. at 679; see also Twombly , 550 U.S. at 555 n.3 ("Rule 8(a)(2) still requires a showing, ' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only fair notice' of the nature of the claim, but also grounds' on which the claim rests.").

" Pro se complaints are to be held to less stringent standards than formal pleadings drafted by lawyers, and should therefore be liberally construed." Williams , 631 F.3d at 383 (internal quotation marks omitted). Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown , 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak , 415 F.App'x 608, 613 (6th Cir. 2011) ("[A] court cannot create a claim which [a plaintiff] has not spelled out in his pleading") (internal quotation marks omitted); Payne v. Sec'y of Treas. , 73 F.App'x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed.R.Civ.P. 8(a)(2) and stating, "[n]either this court nor the district court is required to create Payne's claim for her"); cf. Pliler v. Ford , 542 U.S. 225, 231 (2004) ("District judges have no obligation to act as counsel or paralegal to pro se litigants."); Young Bok Song v. Gipson , 423 F.App'x 506, 510 (6th Cir. 2011) ("[W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only would that duty be overly burdensome, it would transform the courts from neutral arbiters of disputes into advocates for a particular party. While courts are properly charged with protecting the rights of all who come before it, that responsibility does not encompass advising litigants as to what legal theories they should pursue.")

B. Claims

1. RESPA

In enacting RESPA

Congress's intent was "to insure that consumers throughout the Nation are provided with greater and more timely information on the nature and costs of the settlement process and are protected from unnecessarily high settlement charges caused by certain ...

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