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Hesed-El v. Aldridge Pite, LLP

United States District Court, S.D. Georgia, Augusta Division

March 2, 2018

BRO T. HESED-EL, Plaintiff,
v.
ALDRIDGE PITE, LLP; WELLS FARGO BANK, N.A.; and FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendants.

          ORDER

          BRIAN K. EPPS UNITED STATES MAGISTRATE JUDGE.

         Plaintiff commenced the above-captioned case pro se and requests permission to proceed in forma pauperis (“IFP”). Having considered Plaintiff's affidavit of poverty, the Court GRANTS the motion. (Doc. no. 2.) If in the future, however, it appears Plaintiff's financial situation has improved, the Court may act on its own initiative to require him to pay either the entire filing fee or an appropriately determined partial filing fee. Because the Court has now ruled on Plaintiff's IFP request, Plaintiff's Emergency Motion to Request Court Decision on Pauper's Affidavit is MOOT. (Doc. no. 5.)

         Because he is proceeding IFP, Plaintiff's complaint must be screened to protect potential defendants. Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984). Pleadings drafted by pro se litigants must be liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), but the Court may dismiss a complaint, or any part thereof, that is frivolous or malicious or that fails to state a claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(i) & (ii).

         1. SCREENING OF THE COMPLAINT

         Plaintiff names (1) Aldridge Pite, LLP; (2) Wells Fargo Bank, N.A.; and (3) Federal National Mortgage Association (“FNMA”) as defendants. (Doc. no. 1, pp. 1, 2.) Taking all of Plaintiff's factual allegations as true, as the Court must for purposes of the present screening, the facts are as follows.

         Plaintiff owed FNMA $97, 916.78 on mortgages for 3620 Goldfinch Drive and 2818 Meadowbrook Drive in Augusta, Georgia. (Doc. no. 1, p. 4.) On September 28, 2015, Plaintiff sent two checks totaling $86, 509.24, which allegedly and inexplicably satisfied both mortgages in full. (Id.) Nevertheless, Wells Fargo took possession of the property by obtaining a “void judgment.” (Id.; doc. no. 1-1, p. 9.)

         Plaintiff filed suit on September 6, 2016 in an attempt to stop Wells Fargo's foreclosure. (Doc. no. 1-1, p. 2.) While that litigation was pending, Aldridge Pite e-mailed Plaintiff a form letter informing him he owed FNMA $97, 916.78, Wells Fargo was authorized to collect the debt, and they had been retained in connection with the debt. (Id. at 2, 11.) Aldridge Pite referred to itself throughout the letter as a law firm. (Id. at 3-4, 11.) However, no lawyers were involved in drafting the letter, which was generated by a computer-automated process. (Id. at 5.)

         Liberally construing Plaintiff's allegations in his favor and granting him the benefit of all reasonable inferences to be derived from the facts alleged, the Court finds Plaintiff has arguably stated a claim under the FDCPA against Defendants.

         II. INSTRUCTIONS

         IT IS HEREBY ORDERED

         that service of process shall be effected on Defendants. The United States Marshal shall mail a copy of the complaint (doc. no. 1) and this Order by first-class mail and request that Defendants waive formal service of the summons. Fed.R.Civ.P. 4(d). Individual defendants have a duty to avoid unnecessary costs of serving the summons, and if a defendant fails to comply with the request for waiver, the defendant must bear the costs of personal service unless good cause can be shown for failure to return the waiver. Fed.R.Civ.P. 4(d)(2). A defendant whose return of the waiver is timely does not have to answer the complaint until sixty days after the date the Marshal mails the request for waiver. Fed.R.Civ.P. 4(d)(3). However, service must be effected within 90 days of the date of this Order, and the failure to do so may result in the dismissal of any unserved defendant. Fed.R.Civ.P. 4(m). Plaintiff is responsible for providing sufficient information for the Marshal to identify and locate a defendant to effect service.

         IT IS FURTHER ORDERED

         that Plaintiff shall serve upon Defendants, or upon their attorney if appearance has been entered by counsel, a copy of every further pleading or other document submitted to the Court. Plaintiff shall include with the papers to be filed a certificate stating the date a true and correct copy of any document was mailed to Defendants or their counsel. Fed.R.Civ.P. 5; Loc. R. 5.1. Every pleading shall contain a caption setting forth the name of the court, the title of the action, and the file number. Fed.R.Civ.P. 10(a). Any paper received by a District Judge or Magistrate Judge that has not been properly filed with the Clerk of Court or that fails to include a caption or certificate of service will be returned.

         It is Plaintiff's duty to cooperate fully in any discovery that may be initiated by a defendant. Upon being given at least five days' notice of the scheduled deposition date, Plaintiff shall appear and permit his deposition to be taken and shall answer, under oath and solemn affirmation, any question that seeks information relevant to the subject matter of the pending action. Failing to answer questions at the deposition or giving evasive or incomplete responses to questions will not be tolerated and may subject Plaintiff to severe sanctions, including dismissal of this case. Defendants shall ...


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