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Hines v. Regions Bank

United States District Court, N.D. Alabama, Northeastern Division

February 15, 2018

JAMES L. HINES, Plaintiff,
v.
REGIONS BANK f/k/a UNION PLANTERS BANK, N.A., Defendant.

          MEMORANDUM OPINION

          MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE.

         Before 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).

         Mr. 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).

         Regions 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.

         I. STANDARD OF REVIEW

         Under 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 omitted).

         II. DISCUSSION

         a. Mr. Hines's Request for Default Against Regions

         With 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).

         The 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).

         The 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).[1] 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 addressee.

         Ala. R. Civ. P. 4(h)(2)(C) (emphasis added).

         Mr. Hines's attempts at service do not comport with Alabama's rules. Mr.

         Hines 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)).

         Although 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)).

         That 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. ...


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