United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
C. BURKE, UNITED STATES DISTRICT JUDGE
Compton and Faye Braithwaite, who are proceeding pro
se, filed an action to quiet title in the Circuit Court
of Madison County, Alabama, on April 25, 2017, against
Specialized Loan Servicing aka Specialized Loan Servicing LLC
(hereinafter referred to as “SLS”). (Doc 1-1, p.
12). Plaintiffs' claims are difficult to discern, but
they appear to assert federal claims pursuant to the Fair
Debt Collection Practices Act, 15 U.S.C.A. § 1692
et seq.(“FDCPA”) and Truth In
Lending Act, 15 U.S.C. § 1601 et seq.
(“TILA”) as well as state law claims for quiet
title, breach of contract, and fraud. All of plaintiffs'
claims arise out of a mortgage, note and subsequent
foreclosure action as a result of plaintiffs' default.
SLS answered and counterclaimed in the state court action on
June 9, 2017. The case was removed to this Court pursuant to
28 U.S.C. §§ 1441, 1446, 1331, and 1332 on June 12,
case currently is before the court on the motion for summary
judgment filed by SLS. (Doc. 16). Upon consideration of the
motion, the pleadings, the briefs, and the parties'
evidentiary submissions, the court concludes that the motion
should be granted as to all pending federal claims.
STANDARD OF REVIEW
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary
judgment, a party opposing a motion for summary judgment must
cite “to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c)(1)(A). “The court need consider only
the cited materials, but it may consider other materials in
the record.” Fed.R.Civ.P. 56(c)(3).
considering a summary judgment motion, the Court must view
the evidence in the record in the light most favorable to the
non-moving party and draw reasonable inferences in favor of
the non-moving party. White v. Beltram Edge Tool
Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015).
“[A]t the summary judgment stage[, ] the judge's
function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a
genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
“‘Genuine disputes [of material fact] are those
in which the evidence is such that a reasonable jury could
return a verdict for the non-movant. For factual issues to be
considered genuine, they must have a real basis in the
record.'” Evans v. Books-A-Million, 762
F.3d 1288, 1294 (11th Cir. 2014) (quoting Mize v.
Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.
1996)). “A litigant's self-serving statements based
on personal knowledge or observation can defeat summary
judgment.” United States v. Stein, 881 F.3d
853, 857 (11th Cir. 2018); see Feliciano v. City of Miami
Beach, 707 F.3d 1244, 1253 (11th Cir. 2013) (“To
be sure, Feliciano's sworn statements are self-serving,
but that alone does not permit us to disregard them at the
summary judgment stage.”). Even if the Court doubts the
veracity of the evidence, the Court cannot make credibility
determinations of the evidence. Feliciano, 707 F.3d
at 1252 (citing Anderson, 477 U.S. at 255). However,
conclusory statements in a declaration cannot by themselves
create a genuine issue of material fact. See Stein,
881 F.3d at 857 (citing Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 888 (1990)).
the standard for granting summary judgment mirrors the
standard for a directed verdict. Anderson, 477 U.S.
at 250 (citing Brady v. Southern R. Co., 320 U.S.
476, 479-480 (1943)). The district court may grant summary
judgment when, “under governing law, there can be but
one reasonable conclusion as to the verdict.”
Id. at 250. “[T]here is no issue for trial
unless there is sufficient evidence favoring the nonmoving
party . . . . If the evidence is merely colorable, or is not
significantly probative, summary judgment may be
granted.” Id. at 249-50 (internal citations
addition, parties who appear pro se are afforded a
leniency not granted to those who are represented by counsel.
Cf., e.g., Hughes v. Rowe, 449 U.S. 5, 9
(1980) (“It is settled law that the allegations of [a
pro se complaint filed by a state prisoner],
‘however inartfully pleaded,' are held to
‘less stringent standards than formal pleadings drafted
by lawyers.'”) (quoting Haines v. Kerner,
404 U.S. 519, 520 (1972)); Harmon v. Berry, 728 F.2d
1407, 1409 (11th Cir. 1984) (same); Woodall v. Foti,
648 F.2d 268, 271 (5th Cir. 1981) (“A pro se
complaint, however inartfully drafted, must be held to less
rigorous standards than the formal pleadings prepared by
lawyers and can only be dismissed for failure to state a
claim if it appears ‘beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.'”) (quoting
so, the leniency accorded pro se litigants is not
unqualified. A pro se plaintiff “must still
meet the essential burden of establishing that there is a
genuine issue as to a fact material to his case.”
Holifield v. Reno, 115 F.3d 1555, 1561 (11th Cir.
1997) (citing Brown v. Crawford, 906 F.2d 667,
669-70 (11th Cir. 1990)).
SUMMARY OF FACTS
facts are undisputed by the parties. The real property that
is the subject of this lawsuit is located in Madison County,
Alabama, at 215 Pebblestone Drive, Hunstville, Alabama 35806,
more particularly described as follows:
LOT 7, ACCORDING TO THE MAP OF PLAT OF STONE VALLEY, AS
RECORDED IN PLAT BOOK 38, PAGE 81, IN THE OFFICE OF THE JUDGE
OF PROBATE OF MADISON COUNTY, ALABAMA.
(Doc. 1-1, p. 27). On or about November 23, 2001, the
Brathwaites, as husband and wife, acquired title to the
Property by Corporation Warranty Deed. (Id.).
On or about November 23, 2001, the Brathwaites financed the
purchase by executing a note and mortgage in the amount of
$207, 000.00 with mortgagee, Old Stone Mortgage, L.L.C.,
SLS's predecessor in interest. (Doc. 16-1, p. 9-27). The
note and mortgage were later assigned by Old Stone Mortgage,
L.L.C. to Bankers Trust Company as Trustee through a Real
Estate Lien Assignment recorded on May 16,
2002. (Doc. 16-1, p. 28). The mortgage provides
in paragraph 20, that “[t]he Note or a partial interest
in the Note (together with this Security Instrument
[mortgage]) can be sold one or more times without prior
notice to Borrower.” (Doc. 16-1, p. 24). On June 9,
2017, the mortgage along with the note was assigned by
Deutsche Bank Trust Company Americas as Trustee fka Bankers
Trust Company as Trustee to The Bank of New York Mellon Trust
Company, National Association (“BNYM”) as
successor to Deutsche Bank Trust Company Americas f/k/a
Bankers Trust Corporation, as Trustee for Residential Asset
Securities Corporation, Home Equity Mortgage Asset-Backed
Pass-Through Certifies, Series 2002-KS1 (“BNYM”)
by an Assignment of Mortgage. (Doc. 16-1, p. 29). On or about
June 22, 2016, BNYM appointed SLS as its lawful
attorney-in-fact to service Residential Asset Securities
Corporation, Home Equity Mortgage Asset-Backed Pass-Through
Certifies, Series 2002-KS1 via a Limited Power of Attorney.
(Id. at p. 30 and Doc 16-1, p. 4-5) . On April 25,
2017, the plaintiffs filed this action in the Circuit Court
of Madison County and also filed a Notice of Lis Pendens
under Instrument No. 20170425000225510, in the Probate Court
of Madison County, Alabama. (Doc. 16). The Brathwaites admit
that they have failed to timely remit all regular monthly
payments under the note and mortgage. (Doc. 24). On September
21, 2017, BNYM foreclosed the Property; BNMY was the highest
bidder at the foreclosure sale; and a foreclosure deed was
entered and recorded in favor of BNYM on September 26,
2017. (Doc. 16-1, p. 7).