United States District Court, S.D. Georgia, Brunswick Division
ORDER and MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE
matter is before the Court for review of Plaintiff's
pro se Complaint and Motions to Proceed in Forma
Pauperis. After review, the Court DENIES Plaintiff's
Motions for Leave to Proceed in Forma Pauperis,
(docs. 2, 5, 6). For the reasons which follow, I RECOMMEND
the Court DISMISS Plaintiff's Complaint, DIRECT the Clerk
of Court to CLOSE this case, and DENY Plaintiff in forma
pauperis status on appeal.
filed her Complaint on March 6, 2017. (Doc. 1.) Plaintiff
also filed a Motion for Leave to Proceed in Forma
Pauperis. (Doc. 2.) The Court deferred ruling on
Plaintiff's Motion and directed Plaintiff to file another
Motion within fourteen (14) days of the Court's Order.
(Doc. 4.) In response, Plaintiff filed two Motions for Leave
to Proceed in Forma Pauperis. (Docs. 5, 6.)
Complaint, Plaintiff asserts she entered into a loan
repayment and security agreement with Defendant Accredited
Home Lenders in the amount of $247, 500.00 on September 26,
2006, for real property located in Jesup, Georgia, by virtue
of a power of sale contained in a security deed from
Plaintiff to Mortgage Registration System. (Doc. 1, p. 4.)
Plaintiff contends this security deed was last “sold,
assigned and transferred to” Defendant Deutsche Bank
Trust Company as trustee for Morgan Stanley Home Equity Loan
Trust 2007-1. (Id.) Plaintiff contends “the
defendant” acted in “an unfair, deceptive, and
fraudulent manner” during the loan origination process
and “imposed unfair and abusive loan terms” on
her. (Id.) Additionally, Plaintiff contends Mortgage
Registration System is a robo-signer with no firsthand
knowledge of the contents of the assignment to Defendant
Accredited Home Lenders. Plaintiff maintains Defendants
Accredited Home Lenders and Deutsche Bank falsified
information regarding Plaintiff's income in order to
qualify Plaintiff for this loan, even though all of the
financial records she submitted revealed the loan was too
high for Plaintiff to pay. Plaintiff avers she has contacted
Defendant Deutsche Bank over the past several years, but
Defendant Deutsche Bank has “refused to help correct
this fraudulent loan.” (Id. at p. 5.) Instead,
Plaintiff contends Defendants Select Portfolio Servicing and
Deutsche Bank have continued to assess payments, fees,
interest, and penalties against her.
also alleges Defendant Deutsche Bank's refusal to assist
her is a violation of the Home Affordable Modification
Program (“HAMP”), the purpose of which is to
assist homeowners, such as Plaintiff, who are in default on
their mortgages and at risk of default to avoid foreclosure.
Plaintiff also alleges Defendant Deutsche Bank has made no
effort to mitigate against its losses resulting from her
default. Accordingly, Plaintiff asserts Defendant Deutsche
Bank should be enjoined from pursuing foreclosure or
authorizing another entity to pursue foreclosure proceedings
against her. (Id. at p. 6.) Plaintiff also requests
that Defendant Deutsche Bank be enjoined from naming a
substitute trustee. Plaintiff seeks summary judgment in her
favor and damages in the amount of $400, 000.00 for the pain
and suffering Defendant Deutsche Bank has caused her.
28 U.S.C. § 1915(a)(1), the Court may authorize the
filing of a civil lawsuit without the prepayment of fees if
the plaintiff submits an affidavit that includes a statement
of all of his assets and shows an inability to pay the filing
fee and also includes a statement of the nature of the action
which shows that he is entitled to redress. Even if the
plaintiff proves indigence, the Court must dismiss the action
if it is frivolous or malicious, or fails to state a claim
upon which relief may be granted. 28 U.S.C. §
1915(e)(2)(B)(i)-(ii); Grayson v. Mayview State
Hosp., 293 F.3d 103, 113 n.19 (3d Cir. 2002)
(non-prisoner indigent plaintiffs are “clearly within
the scope of § 1915(e)(2)”); Dutta-Roy v.
Fain, No. 1:14-CV-280-TWT, 2014 WL 1795205, at *2
(N.D.Ga. May 5, 2014) (frivolity review of indigent
non-prisoner plaintiff's complaint).
reviewing a Complaint on an application to proceed in
forma pauperis, the Court is guided by the instructions
for pleading contained in the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 8 (“A pleading
that states a claim for relief must contain [among other
things] . . . a short and plain statement of the claim
showing that the pleader is entitled to relief.”);
Fed.R.Civ.P. 10 (requiring that claims be set forth in
numbered paragraphs, each limited to a single set of
circumstances). Further, a claim is frivolous under Section
1915(e)(2)(B)(i) “if it is ‘without arguable
merit either in law or fact.'” Napier v.
Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting
Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.
1915 also “accords judges not only the authority to
dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the
complaint's factual allegations and dismiss those claims
whose factual contentions are clearly baseless.”
Bilal, 251 F.3d at 1349 (quoting Neitzke v.
Williams, 490 U.S. 319, 327 (1989)). Whether a complaint
fails to state a claim under Section 1915(e)(2)(B)(ii) is
governed by the same standard applicable to motions to
dismiss under Federal Rule of Civil Procedure 12(b)(6).
Thompson v. Rundle, 393 F.App'x 675, 678 (11th
Cir. 2010). Under that standard, this Court must determine
whether the complaint contains “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, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff
must assert “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not” suffice. Twombly, 550 U.S. at 555.
analysis, the Court will abide by the long-standing principle
that the pleadings of unrepresented parties are held to a
less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006)
(“Pro se pleadings are held to a less
stringent standard than pleadings drafted by
attorneys.”) (emphasis omitted) (quoting Hughes v.
Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)). However,
Plaintiff's unrepresented status will not excuse mistakes
regarding procedural rules. McNeil v. United States,
508 U.S. 106, 113 (1993) (“We have never suggested that
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
Whether Plaintiff can Pursue a Cause of Action Pursuant to
authorized HAMP as part of the Emergency Economic
Stabilization Act of 2008, (“EESA”) see
12 U.S.C. § 5219a(a), which has the stated purpose of
giving the Secretary of the Treasury the “authority and
facilities” necessary “to restore liquidity and
stability to the financial system of the United
States[.]” 12 U.S.C. § 5201(1). The EESA
“was not passed for the ‘especial benefit' of
struggling homeowners, even though they may benefit from
HAMP's incentives to loan servicers.” Miller v.
Chase Home Fin., LLC, 677 F.3d 1113, 1116 (11th Cir.
2012). Under the EESA, the Secretary is charged with,
inter alia, acting in a manner that “preserves
homeownership and promotes jobs and economic growth[.]”
12 U.S.C. § 5201(2)(B). The Act provides for: oversight
of the Secretary's actions by a “Financial
Stability Oversight Board[;]” oversight of the Troubled
Assets Relief Program (“TARP”) by the Comptroller