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Mullin v. Southeast Bank

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

May 31, 2018

JAMES IRA MULLEN and SHANNON MENECE MULLEN Plaintiffs,
v.
SOUTHEAST BANK, Defendant.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE

         Pending is the ex parte Motion Requesting Emergency Temporary Restraining Order (“TRO motion”) (Doc. No. 3) filed by Plaintiffs James Mullen and Shannon Mullen against Defendant SouthEast Bank, seeking to prevent the foreclosure sale of their property, currently scheduled for June 1, 2018 at 10:00 a.m.

         In addition, as a threshold matter, because Plaintiffs seek to proceed in forma pauperis, the Court must (1) determine whether they have sufficient financial resources to pay the filing fee and (2) conduct an initial review of the Complaint (Doc. No. 1) pursuant to 28 U.S.C. § 1915(e).

         I. In Forma Pauperis Status

         Because it appears from their submission (Doc. No. 2) that Plaintiffs lack sufficient financial resources from which to pay the full filing fee in advance, the application will be granted.

         II. Initial Review of Complaint

         A. Legal Standard

         The Court is required to conduct an initial review of any in forma pauperis complaint and to dismiss it if it is facially 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); McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). In conducting this review, “a district court must (1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)). A pro se pleading must be liberally construed and “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         B. Factual and Procedural Background

         Plaintiffs allege that they reside at 4170 Cowan Road in Cookeville, Tennessee, and that defendant SouthEast Bank is likewise based in Cookeville. According to the Complaint, in the summer or fall of 2017, Defendant extended a mortgage loan to Plaintiffs that was secured by Plaintiffs' primary residence as collateral. The purpose of the mortgage was to satisfy a balloon payment of $42, 000 owed upon the maturity of a previous loan earlier in 2017. Under the terms of the loan extended by Defendant, Plaintiffs were required to make payments of at least $852.49 per month, even though their monthly income was only $915 per month. Plaintiffs expressed concern about their ability to make these payments in light of their income. Defendant's loan officer assured them that this was their best option for keeping their home, even though the loan officer was aware that both Plaintiffs are disabled and their income was unlikely to increase.

         Plaintiffs filed suit on May 31, 2018, seeking to prevent a foreclosure sale of their home from taking place on June 1, 2018, under 15 U.S.C. § 1640(k), which is also the asserted basis for this Court's jurisdiction. Plaintiffs also assert various causes of action under state tort law, including a claim for the tort of “unconscionability” and the negligent and intentional infliction of emotional distress.

         C. Discussion

         The Truth in Lending Act (“TILA”) statutory provision cited by Plaintiffs in the Complaint provides, in relevant part:

[n]otwithstanding any other provision of law, when a creditor, assignee, or other holder of a residential mortgage loan . . . initiates a judicial or nonjudicial foreclosure of the residential mortgage loan . . ., a consumer may assert a violation by a creditor of . . . section 1639c(a) of this title, as a matter of defense by recoupment or set off ...

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