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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

PHILLIP L. ADAMCZYK, 

SUSAN C. ADAMCZYK,

Plaintiffs,

vs. Case No. 4:10cv444-RH/WCS

THRIVENT FINANCIAL BANK,

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiffs, pro se, filed a civil complaint against the Defendant alleging several

causes of action, doc. 1, and asserting jurisdiction is proper here based on both federal

question jurisdiction and because of diversity, see doc. 2. Service was directed, doc. 6,

and Defendants filed a motion to dismiss, doc. 9, on November 5, 2010. Plaintiffs have

already filed a response to the motion to dismiss, doc. 10. 

The motion to dismiss asserts that Plaintiffs appear to seek to "avoid their

obligations under a mortgage on their Panama City property," and have brought

"numerous generic accusations against the banking and lending industry at large . . . ." 

Doc. 9, p. 1. Defendant contends that Plaintiffs' "boilerplate" language in the complaint
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fails to state any cognizable legal claim. Id. Defendant argues that Plaintiffs fail to

provide any specific allegation against Defendant, fail to provide "any factual support for

any purported claim" against the Defendant. Id., at 4. 

Standard of Review

The issue on whether a complaint should be dismissed pursuant to FED. R. CIV.

P. 12(b)(6) for failing to state a claim upon which relief can be granted is whether the

plaintiff has alleged enough plausible facts to support the claim stated. Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The

complaint's allegations must be accepted as true when ruling on a motion to dismiss,

Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992), cert. denied,

113 S. Ct. 1586 (1993), and dismissal is not permissible because of "a judge's disbelief

of a complaint's factual allegations." Twombly, 127 S.Ct. at 1965, quoting Neitzke v.

Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). However,

To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to "state a claim to relief that is plausible on its

face." Id. [Twombly], at 570, 127 S.Ct. 1955. A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct

alleged. Id., at 556, 127 S.Ct. 1955. The plausibility standard is not akin

to a "probability requirement," but it asks for more than a sheer possibility

that a defendant has acted unlawfully. Ibid. Where a complaint pleads

facts that are "merely consistent with" a defendant's liability, it "stops short

of the line between possibility a0nd plausibility of 'entitlement to relief.' " 

Id., at 557, 127 S.Ct. 1955 (brackets omitted).

Ashcroft v. Iqbal, 556 U.S. , 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). 

Pro se complaints are held to less stringent standards than those drafted by an

attorney. Wright v. Newsome, 795 F.2d 964, 967 (11th Cir. 1986), citing Haines v.

Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). 

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Nevertheless, a complaint must provide sufficient notice of the claim and the grounds

upon which it rests so that a "largely groundless claim" does not proceed through

discovery and "take up the time of a number of other people . . . ." Dura

Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577

(2005), quoted in Twombly, 127 S.Ct. at 1966.

Analysis

Plaintiffs' complaint does not present any statements of fact showing how the

named Defendant, Thrivent Financial Bank, harmed the Plaintiffs. Instead, the

complaint consists of general complaints the home lending industry. There is no

statement which identifies any specific loan or contract between the Plaintiffs and the

Defendant. There is no factual allegation that even states when these parties had any

dealing with each other. The most that is stated is that Plaintiffs "entered into a

consumer contract for the refinance of a property located at 7205 Thomas Drive, United

1203D, Panama City, FL, 32408 . . . ." Doc. 1, p. 2. That is not sufficient. It is unknown

where this contract was signed and executed. It is unknown when the contract was

signed. It is unknown what role, if any, the Defendant had in this contract. Plaintiffs'

complaint is insufficient to establish a basis for any liability against the Defendant. 

Plaintiffs assert that "Defendants charged false fees" but do not state with any

specificity the fees charged or why they were "false," who acted as agent for Defendant,

or who the other parties are. Plaintiff's complaint lists fees charged by a lender at

settlement, doc. 1, pp. 12-13, but it is unknown when settlement occurred, or if this

Defendant was the "Lender" referenced. Plaintiffs provides no specific facts that relate

to these parties or to a specific agreement. 

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In responding to the motion to dismiss, Plaintiffs contend that they "stipulated

each fee charged with particularity." Doc. 10, p. 1. Plaintiffs only asserted in the

complaint: "Lender charged fees to Petitioner [Plaintiffs] that were in violation of the

limitations imposed by the Real Estate Settlement Procedures Act as said fees were

simply contrived and not paid to a third party vendor." Doc. 1, p. 12. Plaintiffs fails to

state what limitations were imposed, or how they were violated. The particular fees

which are alleged to be unconnected to charges by a third party are not identified. 

Moreover, Plaintiffs never clearly allege in the complaint whether or not the Defendant

was the Lender. Plaintiffs provided a listing of fees charged at "settlement" but there is

no indication of what settlement was being referenced, where the settlement occurred

(so this Court can determine it has jurisdiction), or when settlement occurred (so it can

be determined that the claims are not time barred). Moreover, after listing the fees,

Plaintiffs stated:

Debtor is unable to determine whether or not the above fees are valid in

accordance with the restrictions provided by the various consumer

protection laws. Therefore, please provide; a complete billing from each

vendor who provided the above listed services; the complete contact

information for each vendor who provided a billed service; clearly stipulate

as to the specific service performed; a showing that said service was

necessary; a showing that the cost of said service is reasonable; a

showing of why said service is not a regular cost of doing business that

should rightly be included in the finance charge.

Doc. 1, p. 13. Those statements relate to disputed charges but are not sufficient to

constitute an allegation of improper or fraudulent fees, or that such fees violated a

limitation imposed by the Real Estate Settlement Procedures Act.

Throughout the complaint, Plaintiffs refer to the scheme of securing a loan, but

refer to lenders, agents, and even Defendant's attorney, but provide no names of any

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persons. It is not even clear whether the Defendant is the "original lender" in this case. 

See doc. 1, p. 10. At another point Plaintiffs claim that the "Defendants, by and though

Defendants' Agents, conspired with other Defendants . . ." Doc. 1, p. 10. There is only

one Defendant in this case. 

Plaintiffs allege that "Defendants claim" a controversy but produce no contract. 

Doc. 1, p. 9. Defendant is not required to produce a contract. That is Plaintiffs'

obligation. 

Plaintiffs allege also that "Defendants claim agency to represent the principal in a

contractual agreement . . ." but state that "Defendants have failed to provide any

evidence of said agency . . . ." Id., at 9. Defendant has not raised an agency claim;

these are Plaintiffs' claims. 

Furthermore, Plaintiffs state that "Defendants lack standing to invoke the subject

matter jurisdiction of the court." Doc. 1, p. 9. That is also nonsense. It is Plaintiff that

must show that this court has jurisdiction of their claims. 

The language used in the complaint, doc. 1, is obviously copied from other

sources, contains boilerplate and vague legal conclusions, and provides no specific

factual basis against this Defendant. Without pointing to some wrongful action which

can be attributed to this Defendant, there is no need to continue this litigation on any of

the multitude of claims asserted. 

Because the complaint fails to state a claim under Rule 8, it moreover, clearly

falls short of the heightened pleading requirements for a claim for fraud under Rule 9. 

Under Fed.R.Civ.P. 9(b), there is a heightened pleading requirements for claims of

fraud which require a complaint "to state with particularity the circumstances constituting

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fraud." Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1237 (11th Cir. 2008). The

Eleventh Circuit has concluded:

Rule 9(b) is satisfied if the complaint sets forth "(1) precisely what

statements were made in what documents or oral representations or what

omissions were made, and (2) the time and place of each such statement

and the person responsible for making (or, in the case of omissions, not

making) same, and (3) the content of such statements and the manner in

which they misled the plaintiff, and (4) what the defendants obtained as a

consequence of the fraud."

Tello v. Dean Witter Reynolds, Inc., 494 F.3d 956, 972 (11th Cir. 2007) (quoting Ziemba

v. Cascade Int'l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001)); Mizzaro, 544 F.3d at 1237. 

Plaintiffs' claims do not meet that standard.

Plaintiffs request that the motion to dismiss be treated as a motion for more

definite statement. Doc. 10, p. 2. This also is nonsense. This is Plaintiff's complaint.

Most telling is the allegation that Defendant and other lenders "swooped in and

convinced Americans to sell their homes, get out of their safe mortgage agreements,

and speculate with the equity they had gained by purchasing homes they could not

afford." Doc. 1, p. 3. Perhaps this happened to Plaintiffs; perhaps not. The complaint

simply does not say. If it did, then it is incumbent upon Plaintiffs to allege what it is that

Defendant illegally did to provide refinancing. Without such allegations, a homeowner's

arms-length decision to pull equity out of their residence to speculate in the real estate

market is a problem without legal remedy.

Plaintiffs had also filed a motion for preliminary injunction, doc. 3, with the

initiation of this case. Since Plaintiffs' complaint is insufficient, Plaintiffs have

correspondingly failed to meet the prerequisites for injunctive relief, that is, a substantial

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likelihood of success on the merits. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir.

2000). 

Conclusion

In light of the foregoing, it is respectfully RECOMMENDED that Defendant's

motion to dismiss, doc. 9, be GRANTED and Plaintiffs' complaint, doc. 1, be

DISMISSED for failure to state a claim upon which relief may be granted, and Plaintiffs'

motion for a preliminary injunction, doc. 3, be DENIED.

IN CHAMBERS at Tallahassee, Florida, on November 24, 2010.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

Case No. 4:10cv444-RH/WCS