United States District Court, S.D. Georgia, Augusta Division
BRO T. HESED-EL, Plaintiff,
ALDRIDGE PITE, LLP; WELLS FARGO BANK, N.A.; and FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendants.
K. EPPS UNITED STATES MAGISTRATE JUDGE.
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.)
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).
SCREENING OF THE COMPLAINT
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.
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.)
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.)
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
IS HEREBY ORDERED
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.
IS FURTHER ORDERED
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.
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 ...