United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
filed his Complaint in this matter on March 27, 2017
(Filing No. 1.) The court has given Plaintiff leave
to proceed in forma pauperis. (Filing No. 6.) The
court now conducts an initial review of the Complaint to
determine whether summary dismissal is appropriate under 28
U.S.C. §§ 1915(e)(2).
SUMMARY OF COMPLAINT
purchased real property located at 1705 Martha Street, Omaha,
Nebraska 68108 (“the Property”) on or about July
11, 2013. Plaintiff executed a deed of trust naming Plaintiff
as the borrower, Freedom Lending LLC as the lender, and
attorney Matt Saathoff as the trustee. The loan was
guaranteed by the Department of Veterans Affairs, as
evidenced by the executed VA Guarantee and Assumption Policy
Rider executed by Plaintiff. (Filing No. 1 at CM/ECF pp
9-10.) On November 2, 2016, Reppert's mortgage loan
was sold to EverBank. (Id. at CM/ECF p. 7.) Caliber
Home Loans was named as the servicer. (Id.) A letter
dated November 7, 2016, informed Reppert of the sale of the
Home Loans substituted attorney Kerry Feld as the trustee on
the Deed of Trust on November 21, 2016. (Id. at
CM/ECF p. 12.) Feld subsequently executed a Notice of Default
stating Plaintiff had failed to make debt payments as they
became due and the debt was accelerated pursuant to the terms
of the Deed of Trust. (Id. at CM/ECF p. 8.) The
Trustee sold the property at a sale on March 6, 2017. It was
purchased by Defendant Theodore Vasko. (Id. at
CM/ECF p. 28.) On March 13, 2017, Vasko filed a Complaint for
Unlawful Detainer in the County Court of Douglas County,
Nebraska seeking to have Plaintiff vacated from the property.
(Id.) Reppert subsequently filed his Complaint in
this court naming Kerry Feld, Caliber Home Loans, Inc., and
Theodore Vasko as Defendants. He seeks to have the sale of
the Property voided and returned to him and monetary damages
for “irreparable emotional harm.”
APPLICABLE STANDARDS OF REVIEW
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate.
See 28 U.S.C. § 1915(e). The court must dismiss
a complaint or any portion of it that states a frivolous or
malicious claim, that fails to state a claim upon which
relief may be granted, or that seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
plaintiffs must set forth enough factual allegations to
“nudge their claims across the line from conceivable
to plausible, ” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 569-70 (2007); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“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.”).
essential function of a complaint under the Federal Rules of
Civil Procedure is to give the opposing party ‘fair
notice of the nature and basis or grounds for a claim, and a
general indication of the type of litigation
involved.'” Topchian v. JPMorgan Chase Bank,
N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting
Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir.
1999)). However, “[a] pro se complaint must be
liberally construed, and pro se litigants are held to a
lesser pleading standard than other parties.”
Topchian, 760 F.3d at 849 (internal quotation marks
and citations omitted).
case, Defendant alleges his due process rights were violated
because the government took his property without allowing
adequate time to prepare his defense. He further alleges his
sale of the Property by the trustee was fraudulent because he
did not receive proper notice of the sale. Finally he asserts
Caliber Home Loans had no authority to appoint Kerry Feld as
the Trustee; therefore, the Notice of Default and subsequent
sale of the Property were improper. The Complaint asserts
both federal question jurisdiction and diversity jurisdiction
fails to state a claim for which relief can be granted.
Liberally construed, Plaintiff is asserting a claim against
the individual defendants under 42 U.S.C. § 1983 for
violating his right to due process by illegally conducting a
trustee's sale. To state a claim under 42 U.S.C. §
1983, a plaintiff must allege a violation of rights protected
by the United States Constitution or created by federal
statute, and also must show that the alleged deprivation was
caused by conduct of a person acting under color of state
law. West v. Atkins, 487 U.S. 42, 48 (1988);
Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.
complaint does not allege any state action for the purposes
of section 1983. The trustee's sale of the Property was
conducted privately without government participation.
Likewise, Plaintiff is not alleging the government had any
obligation to send him notice of default and/or notice of
acceleration of the debt. Plaintiff does assert the
“government” removed him from his home, but
pleads no facts supporting this claim.
a determination that no state officer or employee was
involved does not end the inquiry. “To act under color
of state law . . . does not require . . . that the defendant
be an officer of the state. Private acts or conduct may incur
liability under § 1983 if the individual is a
‘willful' participant in joint action with the
State or its agents.'” Midfelt v. Circuit Court
of Jackson County, Mo., 827 F.2d 343, 345-46 (8th Cir.
1987)(internal quotations omitted). Thus, even if the
defendants are not officers of the state, if there ...