Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Reppert v. Feld

United States District Court, D. Nebraska

May 18, 2017

KYLE REPPERT, Plaintiff,
v.
KERRY FELD, CALIBER HOME LOANS INC., and THEODORE E. VASKO, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Plaintiff 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).

         I. SUMMARY OF COMPLAINT

         Plaintiff 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 Mortgage. (Id.)

         Caliber 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.”

         II. APPLICABLE STANDARDS OF REVIEW

         The 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. § 1915(e)(2)(B).

         Pro se 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.”).

         “The 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).

         A. Due Process

         In this 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 are present.

         Plaintiff 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. 1993).

         The 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.

         However, 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.