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Evans v. Green Tree Servicing LLC.

United States District Court, M.D. Tennessee, Cookeville Division

June 22, 2017

MARK EVANS Plaintiff,
v.
GREEN TREE SERVICING LLC., SMITH COUNTY, TENNESSEE, STATE OF TENNESSEE Defendants.

          Crenshaw Chief Judge.

          REPORT AND RECOMMENDATION

          JEFFERY S. FRENSLEY U.S. MAGISTRATE JUDGE.

         Pending before the Court are Motions to Dismiss filed by Green Tree Servicing LLC, (“Green Tree”)(Docket No. 16) with supporting memorandum (Docket No. 17); the State of Tennessee (Docket No. 19) with supporting memorandum (Docket No. 20); and Smith County, Tennessee (Docket No. 22) with supporting memorandum (Docket No. 23). The pro se plaintiff has filed a response to each of the motions. Docket Nos. 28, 40 and 41. Defendant, Green Tree has filed a reply to plaintiff's response. Docket No. 34. For the reasons stated herein, the undersigned recommends that each of the defendants' motions to dismiss be Granted and that plaintiff's complaint be dismissed.

         RELEVANT FACTS

         Plaintiff filed a complaint against Green Tree, the State of Tennessee and Smith County, Tennessee arising out of the 2007 purchase of a foreclosed property in Smith County, Tennessee for which he was unable to receive a deed. Docket No. 1. Plaintiff alleges that Green Tree is “guilty of violation of federal and Tennessee Consumer Protection acts as well as breach of contract and breach of deed of contract, and criminal felony fraud and life endangerment.” Id. He alleges that the State of Tennessee “is guilty of not enforcing state laws and forcing [the] county to enforce state laws.” Id. Plaintiff alleges Smith County is “guilty of Fraud, criminal felony fraud, and aidding (sic) and a betting (sic) both as well as life endangerment professinal (sic) mis-contuct (sic) and negulance (sic).” Id.

         STANDARD OF REVIEW

         1. Federal Rule of Civil Procedure 12(b)(1)

         A party seeking to dismiss a claim pursuant to Rule 12(b)(1) may engage in either, (1) a facial attack to the complaint; or (2) a factual attack on the allegations averred in the pleadings. See Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). A facial attack is a challenge to the court's subject matter jurisdiction that takes the material allegations of the complaint as true and construes them in the light most favorable to the nonmoving party. See RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134-35 (6th Cir. 1996). In contrast, a factual attack is not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject matter jurisdiction. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994); see also, Ohio Nat'l Life, 922 F.2d at 325.

         2. Federal Rule of Civil Procedure 12(b)(6).

         Fed. R. Civ. P. 12(b)(6) provides that a complaint may be dismissed if it fails to state a claim upon which relief can be granted. The purpose of this rule is to permit a defendant to test whether, as a matter of law, the plaintiff is entitled to relief even if everything alleged in the complaint is true. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993).

         A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the complaint which would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In order to preclude dismissal under Fed.R.Civ.P. 12(b)(6), a complaint must contain either direct or inferential allegations which comprise all of the essential, material elements necessary to sustain a claim for relief under some viable legal theory. Lewis v. ACB Business Services, Inc., 135 F.3d 389, 406 (6th Cir. 1998).

         The Court is required to construe the complaint in the light most favorable to the plaintiff and to accept all well-pleaded allegations of fact as being true. Collins v. Nagle, 892 F.2d 489, 493 (6th Cir. 1989). Despite the Court's responsibility to liberally construe the complaint in the plaintiff's favor, ''more than bare assertions of legal conclusions is ordinarily required to satisfy federal notice pleading requirements.'' Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). Accordingly, the Court does not have to accept as true mere legal conclusions and unwarranted inferences of fact. Morgan v. Churchs Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).

         Finally, while pro se complaints are to be construed liberally (Haines v. Kerner, 404 U.S. 519, 520 (1972)), that liberality does not allow a court to conjure up unpled facts. McFadden v. Lucas, 713 F.2d 143, 147 n.4 (5th Cir. 1983); Slotnick v. Staviskey, ...


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