United States District Court, M.D. Alabama, Northern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
M. BORDEN, UNITED STATES MAGISTRATE JUDGE
to 28 U.S.C. § 636(b)(1) this case was referred to a
United States Magistrate Judge for review and submission of a
report with recommended findings of fact and conclusions of
law. Doc. 4. Plaintiff Rickey Lett asserts a breach of
contract claim against Defendant Bayview Loan Servicing, LLC.
Doc. 1. Pending before the court is Defendant's Motion to
Dismiss. Doc. 6. After careful consideration of the
parties' submissions, the applicable law, and the record
as a whole, the undersigned Magistrate Judge RECOMMENDS that
the Motion to Dismiss (Doc. 6) be GRANTED.
pending before the court are four Motions for Judgment on the
Merits filed by Plaintiff. Docs. 15 & 17-19. The
Magistrate Judge RECOMMENDS that those motions be DENIED.
JURISDICTION AND VENUE
court has subject matter jurisdiction over the claims in this
lawsuit pursuant to 28 U.S.C. § 1332. The parties do not
contest personal jurisdiction or that venue is proper in the
Middle District of Alabama. The court finds adequate
allegations to support both.
FACTUAL AND PROCEDURAL BACKGROUND
Lett resides in Montgomery, Alabama. Doc. 1 at 1. Bayview
Loan Servicing, LLC (hereinafter Bayview) is located in Coral
Gables, Florida. Doc. 1 at 1. On January 18, 2006, Lett took
out a mortgage from CitiFinancial Corporation LLC
(“CitiFinancial”). Doc. 1 at 3. The
“Disclosure Statement, Note and Security
Agreement” Lett signed set his annual percentage rate
at 11.75%. Doc. 1 at 3. In May 2017, Lett's mortgage
account was transferred from CitiFinancial to Bayview. Doc. 1
at 3. From May 3, 2017 until August 31, 2018 Bayview charged
Lett monthly interest at the rate of 11.292%. Doc. 1 at 3.
This is 0.458% less than his stated annual percentage rate.
alleges that Bayview owes him a duty to charge 11.75%
interest each month, per the Disclosure Statement, Note and
Security Agreement he signed with CitiFinancial in January
2006. Doc. 1 at 4. As a result of Bayview's breach of
duty, Lett was denied financial rights to a contractual
agreement (the Disclosure Statement, Note and Security
Agreement). Doc. 1 at 4. Bayview deceived Lett by charging
him 11.292% interest each month, as opposed to the agreed
upon 11.75%. Doc.1 at 4. Lett additionally alleges that he
suffered a pattern of illegal extortion in his house payments
from May 3, 2017 to August 31, 2018. Doc. 1 at 4. Lett made
all relevant payments in a timely manner, as required by his
contract with Bayview. Doc. 1 at 4. He claims that he
suffered damages, loss of money, time, opportunity, and a
host of other losses. Doc. 1 at 5.
STANDARD OF REVIEW
considering a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, the court must
“take the factual allegations in the complaint as true
and construe them in the light most favorable to the
plaintiff.” Pielage v. McConnell, 516 F.3d
1282, 1284 (11th Cir. 2008). To survive a motion to dismiss,
a complaint must include “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
“plausible on its face” if “the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The complaint “requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. Factual allegations need
not be detailed, but “must be enough to raise a right
to relief above the speculative level, ”
Twombly, 550 U.S. at 555, and “unadorned,
the-defendant-unlawfully-harmed-me accusation[s]” will
not suffice. Iqbal, 556 U.S. at 678.
addition to the pleading requirements of Twombly and
Iqbal, a plaintiff's pro se status must
be considered when evaluating the sufficiency of a complaint.
“A document filed pro se is ‘to be
liberally construed,' and ‘a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.'” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). Yet any leniency cannot serve as a
substitute for pleading a proper cause of action. See
Odion v. Google Inc., 628 Fed.Appx. 635, 637 (11th Cir.
2015) (recognizing that although courts must show leniency to
pro se litigants, “this leniency does not give
a court license to serve as de facto counsel for a
party, or to rewrite an otherwise deficient pleading in order
to sustain an action”) (internal quotation marks
omitted). “While the pleadings of pro se
litigants are liberally construed, they must still comply
with procedural rules governing the proper form of
pleadings.” Hopkins v. St. Lucie Cnty. Sch.
Bd., 399 Fed.Appx. 563, 565 (11th Cir. 2010) (internal
citations and quotation marks omitted).
collaterally estopped from litigating this action.
“Collateral estoppel . . . has the dual purpose of
protecting litigants from the burden of relitigating an
identical issue with the same party or his privy and of
promoting judicial economy by preventing needless
litigation.” Parklane Hosiery Co., Inc. v.
Shore, 439 U.S. 322, 326 (1979). The elements of
collateral estoppel, or issue preclusion, are: “(1) the
issue at stake is identical to the one involved in the prior
litigation; (2) the issue was actually litigated in the prior
suit; (3) the determination of the issue in the prior
litigation was a critical and necessary part of the judgment
in that action; and (4) the party against whom the earlier
decision is asserted had a full and fair opportunity to
litigate the issue in the earlier proceeding.”