United States District Court, E.D. North Carolina, Eastern Division
W. Flanagan United States District Judge
matter comes before the court upon defendants' motions to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim upon which relief can be
granted. (DE 38, 41, 44). Plaintiff has failed to respond to
these motions, and the time for doing so has elapsed. In this
posture, the issues raised are ripe for ruling. For the
following reasons, the court grants defendants' motions.
OF THE CASE
proceeding pro se, commenced this action on June 25, 2018,
asserting, as pertinent here, that defendants Branch Banking
and Trust Company (“BB&T”); Morgan Stanley
Mortgage Capital, Inc.; FV-1, Inc.; Morgan Stanley Mortgage
Capital Holdings, LLC; U.S. Bank Trust National Association;
and Igloo Series II Trust violated the Truth in Lending Act
(“TILA”), 15 U.S.C. § 1601, et seq,
in connection with a residential mortgage loan
transaction. For this violation, plaintiff seeks
monetary relief including compensatory and punitive damages
between $100, 000.00 and $2, 000, 000.00; pre and post
judgment interest; attorney's fees; and the refund of
wrongfully collected sums. Additionally, plaintiff seeks
rescission of the loan transaction.
3, 2018, defendant BB&T filed the instant motion to
dismiss for failure to state a claim upon which relief can be
granted. On June 6, 2018, defendants FV-1, Inc., Morgan
Stanley Mortgage Capital Holdings, LLC, and Morgan Stanley
Mortgage Capital, Inc. filed the instant motion to dismiss on
similar grounds also for failure to state a claim upon which
relief can be granted. Finally, on June 6, 2018, defendants
Igloo Series II Trust and U.S. Bank Trust National
Association filed the instant motion to dismiss also for
failure to state a claim upon which relief can be granted.
facts alleged in the complaint may be summarized as follows.
On July 7, 2005, plaintiff obtained a mortgage on her
property located at 544 Pine Ridge Road, Roanoke Rapids,
North Carolina (“the property”), by executing a
negotiable promissory note and deed of trust with BB&T
for $249, 000. (Compl. ¶¶ 36-38, 59). According to
the complaint, BB&T failed to disclose material
information during this transaction. (Id.
¶¶ 87, 92). Due to a series of allegedly unlawful
and fraudulent transfers, defendants FV-I, Inc.; Morgan
Stanley Mortgage Capital Holdings, LLC; U.S. Bank Trust
National Association; and Igloo Series II Trust became
holders of the negotiable promissory note and deed of trust.
(Id. ¶¶ 11-14, 43-44, 53). Despite allegedly
lacking a lawful ownership interest in the property,
defendants foreclosed on the property on June 20, 2018.
(Id. ¶ 121).
Standard of Review
survive a motion to dismiss” under Rule 12(b)(6),
“‘a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Factual allegations must be enough to raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. In evaluating whether a claim is stated,
“[the] court accepts all well-pled facts as true and
construes these facts in the light most favorable to the
plaintiff, ” but does not consider “legal
conclusions, elements of a cause of action, . . . bare
assertions devoid of further factual enhancement[, ] . . .
unwarranted inferences, unreasonable conclusions, or
arguments.” Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.
2009) (citations omitted).
argue the one-year statute of limitations under TILA bars
plaintiff's claim for monetary relief. Additionally,
defendants argue that TILA's three-year statute of repose
bars plaintiff's claim for rescission of the loan
Plaintiff's claim for monetary damages under TILA
requires creditors to disclose material information to
borrowers during the execution of a loan. 15 U.S.C. §
1638(a). If a creditor violates this disclosure requirement,
a borrower can seek monetary damages by filing suit
“within one year ...