Houey v. Carolina First Bank


Court: United States District Court, W.D. North Carolina, Asheville Division

Date published: Nov 8, 2011


In August 2011, Plaintiffs Helen Cliette Houey and Emmanuel Houey (Houeys), appearing pro se, filed a 37-page complaint in state court alleging eighteen causes of action against the defendants. [Doc. 1-1]. The  Houeys alleged $290,000.00 in damages stemming primarily from the defendants’ foreclosure of real property owned by plaintiff Helen Houey in Shelby, North Carolina. [Id.]. The property at issue has been pledged as collateral for a promissory note purportedly in default. [Id.]. TD Bank is the successor by merger to Carolina First Bank, and it removed the action to this Court on September 8, 2011, based on diversity and federal question jurisdiction. [Doc. 1].

In response to the removal, Michelle Smith filed the motions to remand the action to state court and to cancel the foreclosure sale. [Doc. 10]. In the motion to remand, Smith states that she has changed the names of the plaintiffs because Emmanuel Houey does not own the real property at issue; instead, she and Helen Houey allegedly own the property. [Id.]. Helen Houey has not, however, moved for leave to amend the complaint to add Smith as a party plaintiff. Fed.R.Civ.P. 15. Nor has Smith moved for leave to intervene in the action as a plaintiff. Fed.R.Civ.P. 24. Instead, Smith has simply signed both pending motions on Helen Houey’s behalf. [Doc. 10]. In addition, Plaintiff Emmanuel Houey has not moved to dismiss the claims he has asserted against the defendants. 



IT IS, THEREFORE, ORDERED as follows: DENIED DENIED1. the Motion for Remand [Doc. 10] filed in this matter by Michelle Smith is hereby without prejudice; 2. the Motion to Cancel Foreclosure Sale [Doc. 12] filed in this matter by Michelle Smith is hereby without prejudice; 3. Plaintiffs Helen and Emmanuel Houey may file a response to TD Bank’s Motion to Dismiss [Doc. 7] on or before fifteen (15) days from entry of this Order. Failure to do so may result in the dismissal of this action without further notice.

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