Graham v. Anderson

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:23-CV-30-D

TREVOR G. GRAHAM, )

Plaintiff,

v. ORDER

AARON B. ANDERSON, et al.,

Defendants.

On January 20, 2023, Trevor G. Graham (“Graham” or “plaintiff’) filed a pro se complaint

against Aaron B. Anderson (“Anderson”), Brock and Scott PLLC (“B&S”), Closeline Settlement

(“Closeline”), and Mortgage Electronic Registration Systems, Inc. (“MERS”) (collectively

“defendants”) alleging breach of contract, slander of title, and fraud and seeking damages and

declaratory relief [D.E. 1]. On February 19, 2023, MERS moved to dismiss [D.E. 16] and filed a

memorandum in support [D.E. 17]. On February 22, 2023, the court issued a Rule 12 notice,

notifying Graham of MERS’s motion to dismiss [D.E. 20]. On February 27, 2023, Graham

reoronded in opposition [D.E. 26]. On March 13, 2023, MERS replied [D.E. 32]. On March 17,

2023, Graham responded [D.E. 39].

On March 13, 2023, Closeline moved to dismiss [D.E. 30] and filed a memorandum in

support [D.E. 31]. On March 13, 2023, the court issued a Rule 12 notice, notifying Graham of

Closeline Settlement’s motion to dismiss [D.E. 33]. On March 30, 2023, Graham responded in

opposition [D.E. 41]. On April 14, 2023, Closeline replied [D.E. 46].

On March 15, 2023, Anderson and B&S moved to dismiss [D.E. 35] and filed a

memorandum in support [D.E. 36]. On March 16, 2023, the court issued a Rule 12 notice, notifying

Graham of Anderson and B&S’s motion to dismiss [D.E. 38]. On March 30, 2023, Graham

responded in opposition [D.E. 42]. As explained below, the court grants defendants’ motions to

‘dismiss and dismisses without prejudice Graham’s complaint.

L .

This action concerns a default on a home loan and foreclosure on the real property associated

with that loan. On March 15, 2007, Graham and Premium Capitol Funding LLC D/B/A Topdot

Mortgage (“Premium Capitol”) executed an adjustable rate note (“Note”) in favor of Premium

Capitol. See Compl. [D.E. 1] Tf 6, 8; [D.E. 36-1]. On March 27, 2007, Graham and Premium

Capitol secured the Note by a deed of trust.(“Deed of Trust”). See Compl. ff 6, 8; [D.E. 1-2]. The

Deed of Trust listed Closeline as trustee for Premium Capitol. See [D.E. 1-2] 2. Paragraph 25 of

the Deed of Trust empowers the Lender to substitute the Trustee for the Deed of Trust. See id. at

2-3, 13. On August 4, 2011, the Deed of Trust was assigned to The Bank of New York Mellon. See

‘Compl. { 11; [D.E. 1-4].

On October 29, 2018, Graham filed a complaint in the Wake County Superior Court against

Bank of America, N.A., Shellpoint Mortgage Servicing, and MERS. See [D.E. 17] 2; [D.E. 17-1];

[D.E. 31] 3; [D.E. 36] 5. This state court action included substantially similar causes of action for

breach of contract, fraud, and slander of title, which challenged the assignment of the Deed of Trust

(“assignment”). See [D.E. 17] 2; [D.E. 17-1]; [D.E. 31] 3; [D.E. 36] 5. On October 25, 2019,

Superior Court Judge A. Graham Shirley entered an order granting defendants’ motion for summary

judgment ‘on all claims and confirming the validity of the assignment. See [D.E. 17-1]. On

December 17, 2019, Trustee Services of Carolina, LLC (“Substitute Trustee”), was duly appointed

as the substitute trustee under the Deed of Trust. See Comp. ff] 12-13; [D.E. 1-6].

On April 20, 2022, Graham and his wife (“the Grahams”) defaulted on the loan, and the

Substitute Trustee initiated a foreclosure proceeding pursuant to the Deed of Trust by filing a notice

of hearing. See [D.E. 36-5]. On August 17, 2022, the Clerk of Court of Wake County held a

foreclosure hearing. See id. The clerk determined that all requirements for foreclosure under N.C.

Gen. Stat. § 45-21.16(d) were met and authorized the foreclosure sale to proceed. See id. On

August 26, 2022, the Grahams appealed the clerk’s order to the Wake County Superior Court. See

[D.E. 36-6]. On October 4, 2022, Superior Court Judge Stephan Futrell determined that all

requirements for foreclosure under N.C. Gen. Stat. § 45-21.16(d) were met and authorized the

foreclosure sale to proceed. See id. The Grahams did not appeal the court’s order.

The foreclosure sale of the property was scheduled for November 30, 2022. On November

28, 2022, the Grahams filed a motion to stay. See [D.E. 36-7]. On November 30, 2022, Superior

Court Judge Andrew Hanford denied the Grahams’ motion to stay. See id. On November 30, 2022,

the foreclosure sale of the property occurred. See id. No upset bids were filed and, by statute, the

foreclosure sale confirmed at the close of business on December 12, 2022. See N.C. Gen. Stat. §

45-21.29A; [D.E. 1-7]. On December 14, 2022, the Substitute Trustee granted and conveyed the

property. See [D.E. 1-7]. On January 5, 2023, the clerk recorded and audited the final report and

account of foreclosure sale. See [D.E. 36-10].

Il.

Defendants move to dismiss Graham’s complaint for numerous reasons. See [D.E. 17, 31,

36]. Defendants argue that Graham failed to effect proper service on any of the defendants and fails

to state a claim upon which relief can be granted. See [D.E. 17] 5, 7-9; [D.E. 31] 7-12; [D.E. 36]

20-21. MERS and Closeline argue that the statute of limitations bars all claims. See [D.E.

17] 6-7; [D.E. 31] 12. MERS argues that Graham lacks standing. See [D.E. 17] 7-8. Closeline

argues that this court does not have subject-matter jurisdiction and also requests attorney’s fees. See

_ {D.E. 31] 6-7, 12-13. B&S and Anderson argue that Graham’s claims are moot and barred by the

Rooker-Feldman doctrine. See [D.E. 36] 17-20, 22.

A.

“[Flederal courts, unlike most state courts, are courts of limited jurisdiction, created by

Congress with specified jurisdictional requirements and limitations.” Strawn v. AT & T Mobility,

LLC, 530 F.3d 293, 296 (4th Cir. 2008); see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 377 (1994); Priselac v. Chemours Co., 561 F. Supp. 3d 562, 568-69 (E.D.N.C. 2021).

A federal court “must determine that it has subject-matter jurisdiction over [a claim] before

it can pass on the merits of that [claim].” Constantine v. Rectors & Visitors of George Mason Univ.,

411 F.3d 474, 479-80 (4th Cir. 2005). A federal court has an independent obligation to assess its

own subject-matter jurisdiction, and may “raise a lack of subject-matter jurisdiction on its own

motion.” Id. at 480 (quotation omitted). Under 28 U.S.C. § 1332(a), the court has jurisdiction only

where “the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and

costs, and is between . . . citizens of different states.” 28 U.S.C. § 1332(a); see, e.g., Carden v.

Arkoma Assocs., 494 U.S. 185, 187 (1990). Graham, as the party asserting that this court has

subject-matter jurisdiction, must prove that subject-matter jurisdiction exists. See, e.g., Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 104 (1998); Lovern v. Edwards, 190 F.3d 648, 654 (4th

Cir. 1999); Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).

Graham contends that this court has subject-matter jurisdiction based on N.C. Gen. Stat. §

1-75.8. See Compl. 7 5.' N.C. Gen. Stat. § 1-75.8 grants jurisdiction in rem or quasi in rem to courts

™N.C. Gen. Stat. § 1-75.8 states:

of the state of North Carolina. Viewing the complaint in the light most favorable to Graham, this

court does not have subject-matter jurisdiction based on N.C. Gen. Stat. § 1-75.8. Cf. Atlantic

Purchasers, Inc. v. Aircraft Sales, Inc., 101 F.R.D. 779, 782-83 (W.D.N.C. 1984); Hutchinson v.

Bank of N.C., N.A., 392 F. Supp. 888, 895 n.7 (M.D.N.C. 1975). The court also lacks diversity

jurisdiction under 28 U.S.C. § 1332(a@). See Compl. ff 1-5. The parties in this action are not

completely diverse. See id. at 1-4. Likewise, federal question jurisdiction does not apply under

28 U.S.C. § 1331. Thus, the court lacks subject-matter jurisdiction over Graham’s claims. See, □□□□□

Carden, 494 U.S. at 187.

A court of this State having jurisdiction of the subject matter may exercise

jurisdiction in rem or quasi in rem on the grounds stated in this section. A judgment

in rem or quasi in rem may affect the interests of a defendant in a status, property or

thing acted upon only if process has been served upon the defendant pursuant to Rule

4(k) of the Rules of Civil Procedure. Jurisdiction in rem or quasi in rem may be

invoked in any of the following cases:

(1) | When the subject of the action is real or personal property in this |

State and the defendant has or claims any lien or interest therein, or

the relief demanded consists wholly or partially in excluding the

defendant from any interest or lien therein. This subdivision shall

apply whether any such defendant is known or unknown.

(2) When the action is to foreclose, redeem from or satisfy a deed of

trust, mortgage, claim or lien upon real or personal property in this

State.

(3) | When the action is for a divorce or for annulment of marriage of a

resident of this State.

(4) | When the defendant has property within this State which has been

attached or has a debtor within the State who has been garnished.

Jurisdiction under this subdivision may be independent of or

supplementary to jurisdiction acquired under subdivisions (1), (2) and

(3) of this section.

(5) = In any other action in which in rem or quasi in rem jurisdiction may

be constitutionally exercised.

N.C. Gen. Stat. § 1-75.8.

B.

Alternatively, the doctrine of collateral estoppel bars Graham’s claims. The doctrine of

“collateral estoppel” or “issue preclusion” is a subset of the res judicata genre. See In re Microsoft

Corp. Antitrust Litig., 355 F.3d 322, 326 (4th Cir. 2004); SEC v. Peters, No. 5:17-CV-630, 2021 WL

1112387, at *3 (E.D.N.C. Mar. 22, 2021) (unpublished). “Applying collateral estoppel forecloses

the relitigation of issues of fact or law that are identical to issues which have been actually

determined and necessarily decided in prior litigation in which the party against whom collateral

estoppel is asserted had a full and fair opportunity to litigate.” In re Microsoft Corp., 355 F.3d at 326

(cleaned up); see Sedlack v. Braswell Servs. Grp., Inc., 134 F.3d 219, 224 (4th Cir. 1998). Collateral _

estoppel applies if the proponent demonstrates:

(1) the issue or fact is identical to the one previously litigated; (2) the issue or fact

was actually resolved in the prior proceeding; (3) the issue or fact was critical and

necessary to the judgment in the prior proceeding; (4) the judgment in the prior

proceeding is final and valid; and (5) the party to be foreclosed by the prior resolution

of the issue or fact had a full and fair opportunity to litigate the issue or fact in the

prior proceeding.

In re Microsoft Corp., 355 F.3d at 326; see E. Assoc. Coal Co. v. Dir., Off. of Worker’s Comp.

Programs, 578 F. App’x 165, 173 (4th Cir. 2014) (per curiam) (unpublished); Collins v. Pond Creek

Mining Co., 468 F.3d 213, 217 (4th Cir. 2006); Tuttle v. Arlington Cnty. Sch. Bd., 195 F.3d 698,

703 n.6 (4th Cir. 1999); Sedlack, 134 F.3d at 224.

Defendants argue that Judge Shirley’s order granting summary judgment addressed the same

claims stemming from the validity of the assignment that Graham now brings in this federal action.

See [D.E. 17] 5-6; [D.E. 31] 11-12; [D.E. 36] 20-22. Graham’s challenge to the validity of the

assignment in this federal action replicates the one he asserted in the state court action. Compare

Compl. ff 11, 20, 29, 34 and [D.E. 1-4] with [D.E. 17-1] 2, 4, 11, 13. The state court granted

6 .

summary judgment in favor of the defendants in the state court case, dismissing Graham’s claims

with prejudice and finding the assignment valid. See [D.E. 17-1] J 11, 13. The state court’s order

discussed the validity of the assignment, the same issue present in the federal action, was a final,

valid order entering judgment in defendants’ favor. Graham was a party to the state court proceeding

and had a full and fair opportunity to litigate the issue, submitting “several hundred pages of

documents” to the state court. Id. at { 6. Thus, because Graham’s claims stem from the validity of

the assignment, and the state court already decided that the assignment was valid, collateral estoppel

Graham’s claims.

C.

Alternatively, Graham failed to properly serve defendants. Thus, this court lacks personal

jurisdiction over defendants. -

A motion to dismiss under Rule 12(b)(4) challenges the sufficiency or “form” of the process

itself, and a motion to dismiss under Rule 12(b)(5) challenges the sufficiency of the act of “service”

of process. See Fed. R. Civ. P. 12(b)(4), (6)(5); Lee v. City of Fayetteville, No. 5:15-CV-638, 2016

WL 1266597, at *2 (E.D.N.C. Mar. 30, 2016) (unpublished). Stated differently, a Rule 12(6)(4)

motion to dismiss objects to a defect in the content of the documents served, while a Rule 12(b)(5)

motion to dismiss objects to a defect in the act (or lack) of delivery. See, ¢.g., 5B CHARLES ALAN

WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1353 (3d ed. 2004). For

example, a typical Rule 12(b)(4) challenge alleges that the entity named in the summons is different

from the entity named in the complaint. A typical Rule 12(b)(5) challenge alleges that the process

was delivered by a person incapable of serving process (e.g., a party), to a person or entity incapable

of receiving service (e.g., a minor), or that the service was delivered in an improper way (e.g., via

first-class mail). See, e.g., Stokes v. JPMorgan Chase Bank, NA, No. 8:11-cv-2620, 2012 WL

7

527600, at *S—6 (D. Md. Feb. 16, 2012) (unpublished). Plaintiff bears the burden of establishing

proper service of process. See Mylan Lab’ys., Inc. v. Azko, N.V., 2 F.3d 56, 60 (4th Cir. 1993);

Dalenko v. Stephens, 917 F. Supp. 2d 535, 542 (E.D.N.C. 2013).

Service rules ensure due process and personal jurisdiction over a defendant. Moreover, the

rules concerning how to serve a corporation help to alert those receiving a corporation’s mail that

the mail includes a lawsuit deserving prompt attention. These rules concerning service of process

apply equally to litigants proceeding with or without counsel. Service of process is not a mere

formality, and courts should not overlook procedural deficiencies even if actual notice occurred.

See, e.g., Shaver v. Cooleemee Vol. Fire Dep’t, No. 1:07-cv-175, 2008 WL 942560, at *2 (M.D.N.C.

April 7, 2008) (unpublished); McDaniel v. Greyhound Lines, Inc., No. 3:08-cv-130, 2008 WL

2704774, at *4 (W.D.N.C. July 7, 2008) (unpublished); Hoyle v. United Auto Workers Loc. Union

5285, 444 F. Supp. 2d 467, 474 (W.D.N.C. 2006). —

A party may serve a corporation or individual by following the state law rules for service of

process where the action is pending. See Fed. R. Civ. P. 4(e) & (h). North Carolina law permits

service “[u]pon a domestic or foreign corporation” in the following ways:

a. By delivering a copy of the summons and of the complaint to an officer,

- director, or managing agent of the corporation or by leaving copies thereof in

the office of such officer, director, or managing agent with the person who is

apparently in charge of the office.

b. By delivering a copy of the summons and of the complaint to an agent

authorized by appointment or by law to be served or to accept service of

process or by serving process upon such agent or the party in a manner

specified by any statute.

c. By mailing a copy of the summons and of the complaint, registered or

certified mail, return receipt requested, addressed to the officer, director or

agent to be served as specified in paragraphs a and b.

d. By depositing with a designated delivery service authorized pursuant to 26

U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the

officer, director, or agent to be served as specified in paragraphs a. and b.,

delivering to the addressee, and obtaining a delivery receipt.

N.C. R. Civ. P. 4(j)(6). North Carolina law permits service upon a “natural person” in the following

ways:

a. By delivering a copy of the summons and of the complaint to the natural

person or by leaving copies thereof at the defendant's dwelling house or usual

place of abode with some person of suitable age and discretion then residing

therein.

b. By delivering a copy of the summons and of the complaint to an agent

authorized by appointment or by law to be served or to accept service of

process or by serving process upon such agent or the party in a manner

specified by any statute.

c. By mailing a copy of the summons and of the complaint, registered or

certified mail, return receipt requested, addressed to the party to be served,

and delivering to the addressee.

d. By depositing with a designated delivery service authorized pursuant to 26

U.S.C. § 7502(£)(2) a copy of the summons and complaint, addressed to the

party to be served, delivering to the addressee, and obtaining a delivery

receipt. As used in this sub-subdivision, “delivery receipt” includes an

electronic or facsimile receipt.

e. By mailing a copy of the summons and of the complaint by signature

confirmation as provided by the United States Postal Service, addressed to

the party to be served, and delivering to the addressee.

N.C. R. Civ. P. 4(j)(1). Plaintiff must prove that he accomplished service of process in a manner that

complies with Rule 4 of the Federal Rules of Civil Procedure. See Mylan Lab’ys, 2 F.3d at 59-60.

As for MERS, Closeline, and B&S, Graham failed to designate in his summons any of the

parties authorized by North Carolina Rule of Civil Procedure 4(j)(6) to accept service on behalf of

acorporation. See [D.E. 5, 6, 7, 34]. Accordingly, the summons was “defective” on its face. See

Lane v. Winn-Dixie Charlotte, Inc., 169 N.C. App. 180, 187, 609 S.E.2d 456, 460 (2005). Notably,

the party to whom service on a corporation must be addressed are essentially the same under the

North Carolina Rules of Civil Procedure and the Federal Rules of Civil Procedure. Compare N.C.

R. Civ. P. 4(j)(6) (requiring that service be directed or addressed to an “officer, director, or managing

agent” or registered agent) with Fed. R. Civ. P. 4(h) (requiring that service be directed to “an officer,

amanaging or general agent, or to any other agent authorized by appointment or by law”). Graham’s

summons fail to specify the proper title of an individual to receive service of process on behalf of

MERS or Closeline. Graham’s summons is defective. Therefore, Graham failed to properly serve

the complaint by authorized means or direct or address service of process to any officer, director, or

agent of MERS or Closeline. See Fed. R. Civ. P. 12(b)(4); Adams v. GE Money Bank, No. 1:06-cv-

227, 2007 WL 1847283, at *3 (M.D.N.C. June 25, 2007) (unpublished); Shaver, 2008 WL 942560,

at *2.

As for Anderson, Graham did not list on the summons Anderson’s dwelling or usual place

of abode or serve Anderson at his dwelling or usual place of abode. See [D.E. 8]; N.C. R. Civ. P.

(j)(1); cf. Tydings v. Allied Universal, Inc., No. 3:21-cv-588, 2022 WL 1124214, *4 (W.D.N.C.

Apr. 14, 2022) (unpublished).

Where the plaintiff fails to comply with procedural requirements for proper process or service

of process, a court may not exercise personal jurisdiction over the defendant. Koehler v. Dodwell,

152 F.3d 304, 306 (4th Cir. 1998); McDaniel, 2008 WL 2704774, at *5; Shaver, 2008 WL 942560,

- at*3; Adams, 2007 WL 1847283, at *3. Thus, this court lacks personal jurisdiction over defendants.

D.

Alternatively, even if the court has jurisdiction over defendants, Graham has failed to state

a claim upon which relief can be granted. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 554-63 (2007); Coleman v. Md. Court of Appeals, 626 F.3d

187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th

Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading “must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678

(quotation omitted); see Twombly, 550 U.S. at 570; Giarratano, 521 F.3d at 302. In considering the

motion, the court must construe the facts and reasonable inferences “in the light most favorable to

, 10

the [nonmoving party].” Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014) (quotation omitted);

see Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), abrogated on other

grounds by Reed v. Town of Gilbert, 576 U.S. 155 (2015). A court need not accept as true a

complaint’s legal conclusions, “unwarranted inferences, unreasonable conclusions, or arguments.”

Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 678-79. Rather, a plaintiff's

factual allegations must “nudge[ ] [his] claims,” Twombly, 550 U.S. at 570, beyond the realm of

“mere possibility” into “plausibility.” Iqbal, 556 U.S. at 678-79.

When evaluating a motion to dismiss, a court considers the pleadings and any materials

“attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus.., Inc.,

637 F.3d 435, 448 (4th Cir. 2011); see Fed. R. Civ. P. 10(c); Goines v. Valley Cmty. Servs. Bd., 822

F.3d 159, 166 (4th Cir. 2016); Thompson v. Greene, 427 F.3d 263, 268 (4th Cir. 2005). A court may

also consider a document submitted by a moving party if it is “integral to the complaint and there

is no dispute about the document’s authenticity.” Goines, 822 F.3d at 166. Additionally, a court

may take judicial notice of public records without converting the motion to dismiss into a motion

for summary judgment. See, e.g., Fed. R. Evid. 201; Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551

USS. 308, 322 (2007); Philips v. Pitt Cnty. Mem’! Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

As for Graham’s breach of contract claim, to state a claim for breach of contract “the

complaint must allege the existence of a contract between plaintiff and defendant, the specific

provisions breached, the facts constituting the breach, and the amount of damages resulting to

plaintiff from such breach.” RGK, Inc. v. U.S. Fid. & Guar. Co., 292 N.C. 668, 675, 235 S.E.2d

234, 238 (1977); Cantrell v. Woodhill Enter., Inc., 273 N.C. 490, 497, 160 S.E.2d 476, 481 (1968).

Graham alleges that defendants breached his “mortgage contract.” Compl. { 20. As for

Closeline, Anderson, and B&S, Graham fails to allege that any contract existed between him and

11

Closeline, Anderson, or B&S. Closeline, Anderson, and B&S are not parties to the relevant

contracts in this action, Graham’s Note or the Deed of Trust. See id. at 6, 8; [DE. 1-2, 36-1].

Moreover, Graham fails to allege what provisions Closeline, Anderson, or B&S breached because

Graham fails to allege a contract between Graham and those defendants. As for MERS, Graham

alleges that MERS assignment breached his “mortgage contract.” See Compl. 20. Graham,

however, fails to allege what provision of the Note or the Deed of Trust MERS breached by the

assignment. See id. at {] 7-22. Thus, Graham’s breach of contract claim fails. See, e.g., RGK, Inc.,

292 N.C. at 675, 235 S.E.2d at 238; Cantrell., 273 N.C. at 497, 160 S.E.2d at 481.

As for Graham’s slander of title claim, slander of title occurs when an individual maliciously

makes false statements about the title of another’s property, thus causing special damages. See

Mecimore v. Cothren, 109 N.C. App. 650, 654, 428 S.E.2d 470, 473 (1993). Under North Carolina

law, “[t]he elements of slander of title are (1) the uttering of slanderous words in regard to the title

of someone’s property, (2) the falsity of the words, (3) malice, and (4) special damages.” Id. at 655,

428 S.E.2d at 473.

Graham has not plausibly alleged that any defendant uttered any slanderous words, that those

words were false, the words were made with malice, or that he suffered special damages. See

Compl. ff 7-16, 23-30. Graham alleges that MERS knew or should have known that it could not

assign the Deed of Trust and alleges issues with the chain of title of the Deed of Trust. See id. at T]

23-30. Graham’s allegations are not slander of title allegations. Moreover, even assuming the

references to statements made to Graham by defendants via email or other documents constitute false

or slanderous words, see id. at [J] 7-16, 23-30; [D.E. 1-5] 2-3; [D.E. 1-6] 2-3; [D.E. 1-7]; [D.E. 1-8]

2; [D.E. 1-10], Graham has not alleged malice. See, e.g., Cardon v. McConnell, N.C. 461, 461,

12

27 S.E. 109, 109 (1897) (holding that if the defendant’s false assertion was made in good faith, a

slander-of-title claim fails), Thus, Graham’s slander of title claim fails.

As for Graham’s fraud claim, a plaintiff must allege a “(1) [flalse representation or

concealment ofa material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive,

(4) which does in fact deceive, (5) resulting in damage to the injured party.” Forbis v. Neal, 361

N.C. 519, 526-27, 649 S.E.2d 382, 387 (2007). In alleging these elements, the plaintiff “must state

with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b); see United States ex

rel. Grant v. United Airlines Inc., 912 F.3d 190, 197 (4th Cir. 2018).

Graham’s alleges that “[d]efendants fraudulent conduct” caused him to suffer damages and

that “[dJefendants acted with malice, fraud and/or oppression.” See Compl. ff 31-32. Rule 9(b)

requires Graham to state his claim of fraud with particularity, which he has failed to do. See Fed.

R. Civ. P. 9(0). Graham does not set forth what damages allegedly occurred or any other information

to specify his claim of fraud, such as “the time, place, and contents of the false representations, as

well as the identity of the person making the misrepresentation and what he obtained thereby.” U.S.

ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 379 (4th Cir. 2008). Thus, Graham

fails to plausibly state a claim of fraud. See id. Viewing the complaint in the light most favorable

to Graham, Graham’s fraud, slander of title, and breach of contract claims fail. Accordingly, the

court grants defendants’ motion to dismiss.

Il.

In sum, the court GRANTS defendants’ motions to dismiss [D.E. 16, 30, 35] and

DISMISSES WITHOUT PREJUDICE plaintiff's complaint [D.E. 1].

13

SO ORDERED. This & day of June, 2023.

‘ahs C. DEVER Il

United States District Judge

14