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Stout v. First Tennessee Bank

United States District Court, Western District of Tennessee, Western Division

April 20, 2015

CHARLES EDWARD STOUT, Plaintiff,
v.
FIRST TENNESSEE BANK and ELBERT L. THOMAS, JR., Defendants.

ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS REPORT AND RECOMMENDATION ON IN FORMA PAUPERIS SCREENING PURSUANT TO 28 U.S.C. § 1915 AND ON CERTIFICATION OF APPEALABILITY PURSUANT TO RULE 24 OF THE FEDERAL RULES OF APPELLATE PROCEDURE

CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE

Before the Court is Plaintiff Charles Edward Stout’s Motion for Leave to Proceed In Forma Pauperis (“Motion for IFP Status”) (Docket Entry “D.E.” #2) and Plaintiff’s pro se Complaint (D.E. #1), which must be screened pursuant to 28 U.S.C. § 1915 (“Section 1915”) if Plaintiff is granted leave to proceed in forma pauperis. The Motion for IFP Status has been referred to the United States Magistrate Judge for determination and the Section 1915 screening has been referred for Report and Recommendation.[1] For the reasons set forth herein, Plaintiff’s Motion for IFP Status is GRANTED, it is recommended that Plaintiff’s Complaint be DISMISSED pursuant to Section 1915 for failure to state a claim upon which relief may be granted, and it is recommended that leave to proceed in forma pauperis on appeal be DENIED pursuant to Rule 24 of the Federal Rules of Appellate Procedure.

I. Background

On March 23, 2015, Plaintiff filed a Complaint to Quiet Title and for Declaratory and Injunctive Relief (“Complaint”) against First Tennessee Bank and Elbert L. Thomas, Jr., CEO (collectively “Mortgage Defendants”).[2] The allegations in Plaintiff’s Complaint are difficult for the Court to decipher, but he appears to contend that his property located at 4799 Harvest Knoll Cove in Memphis, Tennessee should not have been subjected to foreclosure. (Compl. ¶¶ 8-10). Specifically, Plaintiff alleges that he “made regular monthly payments . . . from April 2012 through December, 2014.” (Id. ¶ 10c) He states that, on or about November, 2013, he received a Notice from First Tennessee Bank regarding its “authority to foreclose.” (Id. ¶¶ 10d, 12b). He alleges that, in or about January 2014, his property was subjected to an “illegal judicial sale, ” and that in or about December 2014 he was sent a notice of a “FORTY-FIVE DAY PRE-FORECLOSURE.” (Id. ¶¶ 10, 12a). He further claims that, on or about February 20, 2015, he received a “NOTICE OF DEFAULT/INTENT FORECLOSURE SALE.” (Id. ¶ 11).

Based upon these allegations, Plaintiff’s Complaint raises the following purported claims: violations of the Uniform Commercial Code, Uniform Foreign Money Claims Act, and Uniform Judicial Code (Compl. ¶¶ 13-18); a “Cause of Action to Set Aside Foreclosure Claim” (Compl. ¶¶ 30-37); a “Cause of Action and Claim for Failure of Consideration” (Compl. ¶¶ 38-40); a claim for usury (Compl. ¶¶ 41-43); a claim for breach of contract (Compl. ¶¶ 44-48); a claim for ultra vires (Compl. ¶¶ 49-50); a claim for indefiniteness of contract (Compl. ¶¶ 51-52); a claim for unconscionability (Compl. ¶¶ 53-55); a claim for fraud (Compl. ¶¶ 56-60); a cause of action for cancellation (Compl. ¶¶ 61-62); a “cause of action following trust property into its product against trustee” (Compl. ¶¶ 63-65); a civil RICO claim for illegality by monopoly, conspiracy, and racketeering (Compl. ¶¶66-72); a “cause of action involving federal officials” (Compl. ¶¶ 78-79); a cause of action regarding tax event reporting (Compl. ¶¶ 80-83); a request for the disbarment of defense counsel (Compl. ¶¶ 109-110); and, “allegations of criminal wrongdoing” (Compl. ¶¶ 73-77).

II. Motion for IFP Status

Initially, the Court must consider Plaintiffs Motion for IFP Status. On the basis of the information set forth in Plaintiffs affidavit, Plaintiffs Motion for IFP Status is GRANTED. The Clerk shall record the defendants as First Tennessee Bank and Elbert L. Thomas, Jr.

III. Section 1915 Screening

Pursuant to Section 1915, in proceedings in forma pauperis, notwithstanding any filing fee, or any portion thereof, that may have been paid, the Court shall dismiss the case at any time if the court determines that the allegation of poverty is untrue or that the action or appeal is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief 28 U.S.C. § 1915(e)(2).

To state a claim upon which relief may be granted, a pleading must include a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). Such a statement must “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). Pleadings and documents filed by pro se litigants are to be “liberally construed, ” and a “pro se complaint, however inartfully pleaded, must be held to a less stringent standard than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, “the lenient treatment generally accorded to pro se litigants has limits.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (citing Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)). The basic pleading essentials are not abrogated in pro se cases. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989) A pro se complaint must still “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Barnett v. Luttrell, 414 Fed.Appx. 784, 786 (6th Cir. 2011) (quoting Ashcroft, 556 U.S. at 678) (internal quotations and emphasis omitted). District Courts “have no obligation to act as counsel or paralegal” to pro se litigants. Pliler v. Ford, 542 U.S. 225, 231 (2004). District Courts are also not “required to create” a pro se litigant’s claim for him. Payne v. Secretary of Treasury, 73 Fed.Appx. 836, 837 (6th Cir. 2003).

A. Breach of Contract

First, Plaintiff asserts a claim for breach of contract. As a basis for this claim, Plaintiff states as follows: “Mortgage Defendants contracted with this Petitioner[] to loan Petitioner Legal Tender ‘Dollars’ of U.S. currency. The contracting parties contracted that the loan would be repaid in Legal Tender ‘Dollars.” The contracting parties did not enter into a contract to loan or borrow and repay in Negotiable Instruments. Mortgage Defendants failed to lend this Petitioner Legal Tender ‘Dollars’ as lawfully defined by the U.S. Congress in the form of U.S. Silver Coin.” (Compl. ¶ 45).

An action for breach of contract requires the following: “(1) the existence of an enforceable contract, (2) nonperformance amounting to a breach of the contract, and (3) damages caused by the breach of the contract.” ARC LifeMed, Inc. v. AMC-Tennessee, Inc., 183 S.W.3d 1, 26 (Tenn. Ct. App. 2005). Plaintiff has failed to allege the basic elements of a claim for breach of contract, has only loosely alleged that a contract was formed, and does not specify the parties to the alleged contract; instead, his claims focus on his general dispute regarding whether United States Dollars constitute legal tender and, similarly, the legality of negotiable instruments. These allegations are wholly insufficient to support a claim for breach of ...


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