United States District Court, N.D. Alabama, Northeastern Division
JAMES L. HINES, Plaintiff,
REGIONS BANK f/k/a UNION PLANTERS BANK, N.A., Defendant.
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE.
the Court are defendant Regions Bank's motion to dismiss
this action by pro se plaintiff James L. Hines and
Mr. Hines's motion for entry of default against Regions.
(Docs. 7, 12). Mr. Hines filed this action on September 14,
2016 in the Circuit Court for Madison County, Alabama in
response to Regions's efforts to foreclose on a mortgage
on his property in Scottsboro, Alabama. (Doc. 1-1, pp. 3, 6).
Mr. Hines filed for bankruptcy under Chapter 7 in October
2013 and has been in default on his mortgage since December
7, 2014. (Doc. 1-1, p. 5).
Hines acknowledges that Regions's mortgage on his
property survived his bankruptcy, but he argues that Regions,
through its conduct, has lost the right to accelerate the
balance of the mortgage. (Doc. 1-1, p. 6). Mr. Hines filed
this suit because “a non-judicial foreclosure [would]
not allow him to assert the defenses he is entitled
to.” (Doc. 1-1, p. 5). As defenses to foreclosure, Mr.
Hines asserts Regions's violation of the Real Estate
Settlement Procedures Act (RESPA), estoppel by acquiescence,
laches, and unclean hands. (Doc. 1-1, p. 6).
removed this case from state to federal court pursuant to 28
U.S.C. § 1441 because Mr. Hines's RESPA claims arise
under federal law. (Doc. 1, p. 3). After removing the case,
relying on Rule 12(b)(6), Regions moved the Court to dismiss
Mr. Hines's complaint for failure to state a claim on
which the Court may grant relief. (Doc. 7). Mr. Hines
responded by moving the Court to enter a default against
Regions based on his assertion that Regions's response to
his state court complaint was untimely. (Doc. 12). For the
reasons explained below, the Court will grant in part and
deny in part Regions's motion to dismiss this action. The
Court also will deny Mr. Hines's motion for entry of
default against Regions.
STANDARD OF REVIEW
Rule 8(a)(2), a complaint must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). A motion to
dismiss based on Rule 12(b)(6) asks the Court to dismiss a
complaint because the plaintiff has not pleaded a claim on
which relief can be granted. Fed.R.Civ.P. 12(b)(6). To
resolve Regions's motion to dismiss, the Court must
consider whether Mr. Hines has alleged facts that
“state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). The facts that Mr. Hines alleges must
be sufficient for the Court “to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. At the motion to dismiss stage,
the Court “must and do[es] assume that any well-pleaded
allegations in the amended complaint are true.”
Edwards v. Prime, Inc., 602 F.3d 1276, 1284 (11th
Cir. 2010). Like any other plaintiff, a pro se
plaintiff must offer factual support for his claim, but
“[a] pro se pleading is held to a less
stringent standard than a pleading drafted by an attorney and
is liberally construed.” Waldman v. Conway,
871 F.3d 1283, 1289 (11th Cir. 2017) (internal quotations
Mr. Hines's Request for Default Against Regions
respect to his request for an entry of default against
Regions, which Mr. Hines raised in his response to
Regions's motion to dismiss, Mr. Hines contends that,
after filing this action on September 7, 2016, he served
process “on Regions Bank at its address in Birmingham,
Alabama” and on Regions's “attorney of
record, W.L. Longshore.” (Doc. 12, p. 1). Mr. Hines
contends that “Regions cannot deny that it received and
was aware of the Complaint, yet [Regions] failed to answer
the complaint or file a motion to dismiss within the time
limit set forth under Rule 12, Alabama Rules of Civil
Procedure and is in default.” (Doc. 12, pp. 1-2).
In response, Regions argues that it cannot be in default
because Mr. Hines never properly served Regions, and Regions
timely removed the case to this Court before Mr. Hines
effectively served Regions with process. (Doc. 1, p. 2; Doc.
13, p. 2).
original state court complaint, which Regions attached to its
notice of removal, indicates that Mr. Hines filed this case
on September 14, 2016. (Doc. 1- 1, pp. 2-3). The Court's
review of the docket indicates that Regions's December
13, 2016 removal of the case from state to federal court was
the bank's first response to Mr. Hines's complaint.
(See Doc. 1, p. 2; Doc. 1-1, p. 2; Doc. 13-1, p. 2).
Although Regions's response comes well after Mr. Hines
filed this case, Regions's delay may result in default
only if Mr. Hines properly served the bank; without proper
service of process, the Court does not obtain jurisdiction
over a party. See Pardazi v. Cullman Med. Ctr., 896
F.2d 1313, 1317 (11th Cir. 1990) (“Service of process
is a jurisdictional requirement: a court lacks jurisdiction
over the person of a defendant when that defendant has not
been served.”). The records from the state court
proceedings, also attached to Regions's notice of
removal, indicate that Mr. Hines attempted to serve Regions
on September 14, 2016 by sending a copy of the summons and
complaint via certified mail to a post office box. (Doc. 1-1,
p. 9). Mr. Hines asserts that he also served Regions with
process by sending the summons and complaint to Regions's
counsel in the foreclosure proceedings, Longshore, Buck and
Longshore P.C. (Doc. 12, p. 1).
Alabama Rules of Civil Procedure permit a plaintiff to serve
a corporate entity “by serving an officer, a partner
(other than a limited partner), a managing or general agent,
or any agent authorized by appointment or by law to receive
service of process.” Ala. R. Civ. P.
4(c)(6). A plaintiff may use certified mail to
serve a corporation, but the addressee of that certified
mailing must be one of the persons listed in Rule 4(c)(6).
See Ala. R. Civ. P. 4(h)(2)(B)(i). Even where the
plaintiff properly addresses the certified mailing,
Alabama's rules state that:
[s]ervice by certified mail shall be deemed complete and the
time for answering shall run from the date of delivery to the
named addressee or the addressee's agent as evidenced
by signature on the return receipt. Within the meaning
of this subdivision, “agent” means a person or
entity specifically authorized by the addressee to receive
the addressee's mail and to deliver that mail to the
Civ. P. 4(h)(2)(C) (emphasis added).
Hines's attempts at service do not comport with
Alabama's rules. Mr.
addressed his summons and complaint to a P.O. Box, not to an
officer, general agent, or authorized agent of Regions.
(See Doc. 1-1, p. 9). Therefore, this attempt at
service was inadequate. See Ex Parte LERETA, LLC,
226 So.3d 140, 145 (Ala. 2016)).
Mr. Hines's attempt to serve process on Regions's
through the bank's counsel in the foreclosure proceedings
may be closer, it too misses the mark.
Neither the Alabama Code nor our Rules of Civil Procedure
authorize process service on the defendant's attorney
unless performed in compliance with Rule 4(h), Singleton
v. Allen, 431 So.2d 547 (Ala. Civ. App. 1983), or unless
there is credible evidence of the appointment of the attorney
as agent for purposes of service of process, or that he is
authorized by law in accordance with Rule 4(c)(1).
Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d
45, 52 (Ala. 2003) (quoting Colvin v. Colvin, 628
So.2d 802, 803 (Ala. Civ. App. 1993)). Longshore, Buck and
Longshore's representation of Regions in the foreclosure
proceeding does not make that firm Region's general agent
for service of process. See LVNV Funding, LLC v.
Boyles, 70 So.3d 1221, 1228 (Ala. Civ. App. 2009)
(holding that a party's attorney did not, by virtue of
its representation alone, become the party's agent for
service of process.). Mr. Hines's has not pointed to
evidence beyond Longshore's representation in the
foreclosure proceeding from which the Court could conclude
that Longshore was Regions's authorized agent for service
of process. Therefore, this effort to serve process was
inadequate. In addition, neither of Mr. Hines's attempts
at service resulted in the return of a signed receipt as
contemplated by Rule 4(h)(2)(C). (See Doc. 1-1, p.
2; Doc 13-1, p. 2; Ala. R. Civ. P. 4(h)(2)(C)).
Regions became aware of Mr. Hines's case does not render
the manner in which Mr. Hines served Regions with process
valid under the governing law. See Albra v. Advan,
Inc., 490 F.3d 826, 829 (11th Cir. 2007) (“A
defendant's actual notice is not sufficient to cure
defectively executed service.”). Without proper service
of process, Regions was not obligated to answer the complaint
or otherwise defend the case, and because Regions had no such
obligation, Mr. ...