United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Talwani, United States District Judge.
August 21, 2017, Patricia Ardele Smith, who is proceeding
pro se, filed her Original Complaint/Writ to Vacate
a Void Order Pursuant to Federal Rules of Civil procedure
60(B) [#1], Emergency Motion for a Temporary Restraining
Order and Preliminary Injunction [#5], and Motion for Leave
to Proceed in Forma Pauperis[#7]. Smith, a debtor in
a bankruptcy proceeding in the District of Massachusetts,
seeks relief from an order of the bankruptcy court lifting
the automatic stay as to Deutsche Bank National Trust Company
(“Deutsche Bank”), one of Smith's creditors.
Smith represents that, because of the lift of the automatic
stay, Deutsche Bank has given notice that it will foreclose
on her home on August 25, 2017. She asks that the court
immediately enjoin Deutsche Bank from foreclosing on her
home. For the reasons set forth below, the Motion for Leave
to Proceed in Forma Pauperis[#7] is GRANTED, but the
Emergency Motion for a Temporary Restraining Order and
Preliminary Injunction is DENIED and the action is
DISMISSED FOR LACK OF JURISDICTION. The dismissal is without
prejudice to any relief plaintiff may seek in the bankruptcy
court or in state court.
April 14, 2017, Plaintiff filed a Chapter 13 bankruptcy
petition in the United States Bankruptcy Court for the
District of Massachusetts. See In re Patricia A.
Smith, Case No. 17-11351 (Bankr. D.
Mass.). Thereafter, the case was converted to a
Chapter 7 petition. On June 15, 2017, Deutsche Bank filed a
motion for relief from the automatic stay of imposed under 11
U.S.C. § 362, seeking to enforce a promissory note given
by Plaintiff and secured by a mortgage on Plaintiff's
30, 2017, the bankruptcy court granted Deutsche Bank's
motion to lift the automatic stay. On July 5, 2017, the
bankruptcy court received Smith's opposition to Deutsche
Bank's motion, which the bankruptcy court deemed to be
untimely. The bankruptcy court returned the document to Smith
with instructions to file it as a motion to vacate the order
lifting the automatic stay as to Deutsche Bank. Smith
complied, and, on July 18, 2017, the bankruptcy court held a
hearing on the motion to vacate and denied it the same day.
According to Plaintiff, on August 5, 2017, she received a
notice from a law firm representing Deutsche Bank,
“threatening to foreclose against [her] homestead on
August 25, 2017.” Compl. [#1] ¶ 4.
August 21, 2017, Plaintiff commenced the present action. In
her complaint, Plaintiff states that the lawsuit
“involves a demand by [her] to set aside a void order
issued by the Bankruptcy Court of [Massachusetts] . . . and
which void order will lead to the wrongful seizure of [her]
homestead and [her] eviction therefrom.” Compl. [#1]
¶ 6. She further contends that the order was
“procured by fraud on the part of Defendant Deutsche
Bank and the judgment was entered in violation of [her] due
process rights.” Id. Plaintiff expresses her
intent to “file an adversary complaint in [her]
bankruptcy case challenging the mortgage debt against [her]
homestead and asking the court to void the mortgage lien
against [her] homestead.” Id. ¶ 17.
Motion for Leave to Proceed in Forma Pauperis Upon
review of Plaintiff's motion for leave to proceed in
forma pauperis, the court concludes that she is without
income or assets to pay the filing fee. Accordingly, the
motion is GRANTED.
Review of the Complaint
plaintiff seeks to file a complaint without prepayment of the
filing fee, the court may conduct a preliminary screening of
the complaint pursuant to 28 U.S.C. § 1915(e)(2).
Further, a court has an obligation to inquire sua
sponte into its own subject matter jurisdiction, see
McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004), and
“[i]f the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the
action, ” Fed.R.Civ.P. 12(h)(3). In conducting this
review, the court liberally construes the complaint because
Plaintiff is proceeding pro se. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972).
Court's Lack of Jurisdiction to Adjudicate the Matter as
an Original Action
filed this action as a complaint or writ and represented on
her civil cover sheet that she is filing this action under
Rule 60(b) of the Federal Rules of Civil Procedure. [#1-1].
The court lacks jurisdiction over such an action.
states that this court has jurisdiction over this matter
pursuant to 12 U.S.C. § 2605(f). This statute provides a
private right of action against a servicer of a federally
related mortgage loan that fails to comply with requirements
regarding notice to borrowers of the assignment of the
servicing of the loan or obligations concerning payments from
escrow accounts. See 12 U.S.C. § 2605. However,
Plaintiff has failed to allege any facts that would support
such a claim.
also refers to 12 C.F.R. § 1024.41(a) as a basis for
this court's jurisdiction. Section 1024.41 of Title 12 of
the Code of Federal Regulations sets forth procedures a loan
servicer must follow if the servicer offers borrowers a loss
mitigation option to avoid foreclosure. Subsection (a) of
this regulation allows a borrower to enforce its provisions
pursuant to 12 U.S.C. § 2605(f). But, Plaintiff has not
made any allegations ...