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Smith v. Deutsche Bank National Trust Co.

United States District Court, D. Massachusetts

August 24, 2017

PATRICIA ARDELE SMITH, Plaintiff,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Soundview Home Loan Trust 2005-OPT4, Asset-Backed Certificates, Series 205- PT4, Defendant.

          MEMORANDUM AND ORDER

          Indira Talwani, United States District Judge.

         On 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.

         I. Background

         On 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.).[1] 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 real property.

         On June 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.

         On 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.

         II. Discussion

         A. 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.

         B. Review of the Complaint

         When a 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).

         1. Court's Lack of Jurisdiction to Adjudicate the Matter as an Original Action

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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 ...


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