IN RE: PHILIP RICHARD ROGERS and JILL DENISE ROGERS, Debtors. PHILIP RICHARD ROGERS and JILL DENISE ROGERS, Plaintiffs,
v.
SELENE FINANCE, LP, Defendant.
CASE NO. 2: 10-bk-21060ADVERSARY PROCEEDING NO. 2: 14-ap-02068
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON
September 30, 2016
IN RE: PHILIP RICHARD ROGERS and JILL DENISE ROGERS, Debtors. PHILIP RICHARD ROGERS and JILL DENISE ROGERS, Plaintiffs, v. SELENE FINANCE, LP, Defendant.
CASE NO. 2: 10-bk-21060ADVERSARY PROCEEDING NO. 2: 14-ap-02068
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON
September 30, 2016
CHAPTER 7
JUDGE FRANK W. VOLK
MEMORANDUM OPINION AND ORDER
Pending is the motion by Defendant Selene Finance, LP, ("Selene") to dismiss this action ("Motion") Dckt. 63.
The Plaintiffs, Philip and Jill Rogers, initiated this adversary proceeding seeking a declaration that Selene violated federal law by harassing the Rogers. Additionally, the Rogers seek relief under 11 U.S.C. 105, petitioning the Court to cancel their indebtedness to Selene along with "other fines and damages" that the Court deems appropriate.
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In the Motion, Selene contends that the Rogers have failed to state a claim upon which relief can be granted. This matter is a core proceeding pursuant to 28 U.S.C. 157(b)(2)(i) and the Court has jurisdiction pursuant to 28 U.S.C. 157 and 28 U.S.C. 1334.
The Rogers petitioned for relief under Chapter 7 on October 28, 2010 (the "Bankruptcy Proceeding"). On February 2, 2011, the Rogers received their discharge. On August 26, 2011, the Court granted the Rogers' Motion to Compel CitiMortgage, Inc. ("CitiMortgage") to Provide Written Detailed Information Concerning Mortgage Loan of Debtors. CitiMortgage was adjudged in contempt on April 13, 2012, and was again required to provide written information concerning the Rogers' mortgage loan, as well as paying the Rogers' attorney fees. CitiMortgage was adjudged in contempt a second time on February 21, 2013, and was, a third time, required to provide written information regarding the Rogers' mortgage loan and cover the Rogers' attorney fees. Bankr. Proceeding Dkt. 48.
The Rogers filed the instant adversary proceeding on February 26, 2014. In their complaint, the Rogers stated that they were seeking cancelation of their indebtedness to Selene under 11 U.S.C. 105 due to alleged violations of federal laws. The Rogers stated that on two separate occasions following discharge, Selene sent representatives to the Rogers' home respecting a loan obligation. The first instance occurred on January 22, 2013, when "a man who would not identify himself, gave to Philip Richard Rogers, a card with a number which later was found to be the number for Selene Finance, and told Mr. Rogers to call that number. " (Compl. at 1-2).
The second alleged violation of the discharge injunction occurred the following day on January 23, 2013. Another Selene representative arrived at the Rogers' home and requested that
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they not attend their bankruptcy court hearing that day and instead attempt to reach a settlement with Selene. The Rogers attended the hearing and Mr. Rogers testified concerning the visits by a Selene representative. The Rogers claim that Selene continues to send letters and "make demanding phone calls. " (Compl. at 3).
A. Governing Standard
Federal Rule of Civil Procedure 12(b)(6) is made applicable to adversary proceedings by its insolvency counterpart, Federal Rule of Bankruptcy Procedure 7012(b). Federal Rule of Civil Procedure 8(a)(2) requires that a pleader provide "a short and plain statement of the claim showing . . . entitlement to relief. " Fed. R. Ci v. P. 8(a)(2); Erickson v. Pardus 551 U.S. 89 93 (2007). Rule 12(b)(6) correspondingly permits a defendant to challenge a complaint when it "fails to state a claim upon which relief can be granted . . . . " Fed. R. Ci v. P. 12(b)(6).
The required "short and plain statement" must provide "'fair notice of what the . . . claim is and the grounds upon which it rests. '" Bell Atlantic Corp. v. Twombly 550 U.S. 544 555 (2007) (quoting Conley v. Gibson 355 U.S. 41 47 (1957), overruled on other grounds Twombly 550 U.S. at 562-63); McCleary-Evans v. Maryland Dep't of Transp State Highway Admin 780 F. 3d 582, 585 (4th Cir. 2015). Additionally, the showing of an "entitlement to relief amounts to "more than labels and conclusions . . . . " Twombly 550 U.S. at 558. It is now settled that "a formulaic recitation of the elements of a cause of action will not do. " Id. at 555; McCleary-Evans 780 F. 3d at 585; Giarratano v. Johnson 521 F. 3d 298, 304 (4th Cir. 2008).
The complaint need not "forecast evidence sufficient to prove the elements of a claim, " but it must "allege sufficient facts to establish those elements. " Wright v. N. Carolina 787
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F.3d 256, 270 (4th Cir. 2015); Walters v. McMahen 684 F. 3d 435, 439 (4th Cir. 2012) (internal quotation marks and citation omitted). Stated another way, the operative pleading need only contain "factual allegations . . . sufficient to raise a right to relief above the speculative level. " Twombly 550 U.S. at 555; Ashcroft v. Iqbal 556 U.S. 662 678 (2009) (noting the opening pleading "does not require 'detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. "). In sum, the complaint must allege "enough facts to state a claim to relief that is plausible on its face. " Twombly 550 U.S. at 570.
As noted in Iqbal the Supreme Court has consistently interpreted the Rule 12(b)(6) standard to require a court to "'accept as true all of the factual allegations contained in the complaint . . . . '" Erickson 551 U.S. at 94 (citing Twombly 550 U.S. at 555); see also South Carolina Dept. of Health and Environmental Control v. Commerce and Industry Ins. Co 372 F. 3d 245, 255 (4th Cir. 2004) (quoting Franks v. Ross 313 F. 3d 184, 192 (4th Cir. 2002)). The Court is additionally required to "draw all reasonable . . . inferences from those facts in the plaintiff's favor . . . . " Edwards v. City of Goldsboro 178 F. 3d 231, 244 (4th Cir. 1999).
While the Court liberally construes pro se pleadings, Gordon v. Leeke 574 F.2d 1147, 1151 (4th Cir. 1978), it must not stray over the line and advocate for the litigant. See Brock v. Carroll 107 F. 3d 241, 243 (4th Cir. 1997) (Luttig, J concurring); Beaudett v. City of Hampton 775 F.2d 1274 1278 (4th Cir. 1985).
B. Analysis
Selene seeks to have this case dismissed inasmuch as "Debtors' three-page Complaint vaguely alleges only violations of non-specific 'Federal Laws. '" (Mot. at 1). Selene is correct. The operative pleading fails to state a claim upon which relief can be granted. The facts
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alleged by the Rogers, along with their unadorned assertion that Selene's conduct violated "Federal Law, " fall well short of the Rule 12(b)(6) bar.
It is, accordingly, ORDERED that Selene's Motion be, and hereby is, GRANTED to the extent that the Rogers have until October 15, 2016, to file an amended complaint herein, a motion for contempt against Selene in the main case, or both.
Noncompliance with this Memorandum Opinion and Order will result in the dismissal without prejudice of this adversary proceeding, as the Rogers will be deemed to have failed to prosecute the matter pursuant to Federal Rule of Civil Procedure 41(b) and the factors espoused in Hillig v. Comm'r of Internal Revenue 916 F.2d 171 174 (4th Cir. 1990).
In the event that the Rogers file an amended complaint as permitted, the parties are directed to meet and confer on or before October 30, 2016, and tender to the Court on or before November 15, 2016, a proposed scheduling order, giving due regard to the health issues mentioned.
The Clerk shall transmit a copy of this written opinion and order to counsel of record and, additionally, to the Rogers at their last known address, via certified mail, return receipt requested.
/s/_________ Frank W. Volk, Chief Judge United States Bankruptcy Court Southern District of West Virginia
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Footnotes:
The Court has also received the September 27, 2016, motion from the Rogers seeking that discovery and trial be held in abeyance for six months inasmuch as one of the plaintiffs is afflicted with a serious health condition. The matter may be first discussed among the Rogers and opposing counsel in the event the Rogers continue the pursuit of this action pursuant to the terms of this Memorandum Opinion and Order. It is ORDERED that the motion be, and hereby is, DENIED without prejudice.
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Footnotes:
The Court has also received the September 27, 2016, motion from the Rogers seeking that discovery and trial be held in abeyance for six months inasmuch as one of the plaintiffs is afflicted with a serious health condition. The matter may be first discussed among the Rogers and opposing counsel in the event the Rogers continue the pursuit of this action pursuant to the terms of this Memorandum Opinion and Order. It is ORDERED that the motion be, and hereby is, DENIED without prejudice.
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