Shipman v. Funds Management Branch et alMOTION to Dismiss for Failure to State a ClaimW.D.N.C.December 27, 20161 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION SHARON SHIPMAN, Plaintiff, vs. FUNDS MANAGEMENT BRANCH, DIVISION OF FEDERAL INVESTMENTS BUREAU OF THE FISCAL SERVICES; RYAN HANNA; BANK OF AMERICA; PAUL DONOFRIO SCS AND ITS TRUSTEES, Defendants. Civil Action No. 3:16-cv-00772-RJC-DSC DEFENDANT BANK OF AMERICA, N.A. AND PAUL DONOFRIO’S MOTION TO DISMISS Defendants Bank of America, N.A.1 and Paul Donofrio, by and through undersigned counsel and pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, hereby move this Court to dismiss all claims asserted against them in Plaintiff’s Complaint for failure to state a claim upon which relief can be granted. This Motion will be supported by the pleadings, the record, a Memorandum of Law in Support of Defendants’ Motion to Dismiss, which is filed contemporaneously herewith and incorporated herein by reference, oral argument, and any other evidence requested or permitted by the Court. WHEREFORE, Defendants respectfully request that the Court grant their Motion and dismiss all of Plaintiff’s claims with prejudice. 1 Plaintiff names “Bank of America” as a defendant; however, no known legal entity exists with that name. It is assumed that Plaintiff meant to name Bank of America, N.A. and, therefore, Defendant will respond as Bank of America, N.A. Case 3:16-cv-00772-RJC-DSC Document 13 Filed 12/27/16 Page 1 of 3 2 This the 27th day of December, 2016. /s/ Nathan J. Taylor_____________________ Nathan J. Taylor (SBN #26779) McGuireWoods LLP 201 North Tryon Street, Suite 3000 Charlotte, North Carolina 28202-4011 704.343.2113 (Direct Line) 704.444.8875 (Direct FAX) ntaylor@mcguirewoods.com (E-mail) Counsel for Defendants Bank of America, N.A. and Paul Donofrio Case 3:16-cv-00772-RJC-DSC Document 13 Filed 12/27/16 Page 2 of 3 3 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION SHARON SHIPMAN, Plaintiff, vs. FUNDS MANAGEMENT BRANCH, DIVISION OF FEDERAL INVESTMENTS BUREAU OF THE FISCAL SERVICES; RYAN HANNA; BANK OF AMERICA; PAUL DONOFRIO SCS AND ITS TRUSTEES, Defendants. Civil Action No. 3:16-cv-00772-RJC-DSC CERTIFICATE OF SERVICE I hereby certify that on December 27, 2016, a copy of the foregoing pleading, with any and all attachments, was filed electronically with the clerk of court via ECF, which will serve all counsel of record, and served via First-Class Mail to any party not filing ECF, postage prepaid, addressed to: Sharon Chambliss Shipman 1001 East W.T. Harris Blvd Suite P104 Charlotte, NC 28262 This the 27th day of December, 2016. /s/ Nathan J. Taylor _________________ Nathan J. Taylor Case 3:16-cv-00772-RJC-DSC Document 13 Filed 12/27/16 Page 3 of 3 1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION SHARON SHIPMAN, Plaintiff, vs. FUNDS MANAGEMENT BRANCH, DIVISION OF FEDERAL INVESTMENTS BUREAU OF THE FISCAL SERVICES; RYAN HANNA; BANK OF AMERICA; PAUL DONOFRIO SCS AND ITS TRUSTEES, Defendants. Civil Action No. 3:16-cv-00772-RJC-DSC DEFENDANT BANK OF AMERICA, N.A. AND PAUL DONOFRIO’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Defendants Bank of America, N.A.1 (“BANA”) and Paul Donofrio, by their undersigned counsel, submit this memorandum in support of their contemporaneously filed motion to dismiss the “Action for Trustee to Perform Under Terms of the Deed” (“Complaint”) filed by Sharon Shipman (“Plaintiff”) . INTRODUCTION AND FACTUAL BACKGROUND Plaintiff’s Complaint is styled as an “Action for Trustee to Perform Under Terms of the Deed.” (See generally Compl.). At no point in the document does Plaintiff reference BANA or Donofrio or even indicate why they are parties to this lawsuit. Rather, Plaintiff states that, on August 26, 2016, she executed a “Deed of Special Trust” in which she “terminates and disclaims any/all purported resident agency, public office, public trusteeship, and/or public Suretyship…” and “delivers…in trust, the Collateral” to the “Trustee,” who she defines as various governmental entities. (Compl. ¶ 2 & Attachment B). The “Collateral” is defined as “’Sharon Chambliss d/b/a 1 Plaintiff names “Bank of America” as a defendant; however, no known legal entity exists with that name. It is assumed that Plaintiff meant to name Bank of America, N.A. and, therefore, Defendant will respond as Bank of America, N.A. Case 3:16-cv-00772-RJC-DSC Document 13-1 Filed 12/27/16 Page 1 of 5 2 ‘SHARON CHAMBLISS’ a/k/a ‘SHARON CHAMBLISS SHIPMAN.” (Compl. Attachment B). On October 3, 2016, Plaintiff executed a Quit Claim deed in which she purported to assign the property located at 4431 Trillium Fields Drive, Charlotte, North Carolina 28269 (the “Property”) to SCS Trustee. (Compl. ¶ 1 & Attachment A). As a matter of public record, Plaintiff’s interest in the Property is subject to a Deed of Trust held by BANA. On June 8, 2007, Plaintiff, and her husband, executed a Deed of Trust to secure repayment of a Note in favor of BANA and related to the Property. See Deed of Trust, attached hereto as Defs.’ Exh. A.2 Although unclear, Plaintiff seems to contend that, by executing the “Deed of Special Trust,” she released the Property from any encumbrance, such as the Deed of Trust. (Compl. ¶ 6). The Complaint bears the indicia of “sovereign citizen” ideology. Plaintiff attempts to state no valid claim against and defendant and the Complaint should be dismissed with prejudice. ARGUMENT I. Standard of Review. A Rule 12(b)(6) motion for failure to state a claim for which relief can be granted challenges the legal sufficiency of a complaint. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). A claim is stated if the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This plausibility standard requires that the complaint's factual allegations “be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. “Threadbare recitals of the elements of a cause 2 The Court may take judicial notice of this document because it is central to Plaintiff’s Complaint and it is a document recorded in the Mecklenburg County Recorder’s Office. See Sun Chems. Trading Corp. v. CBP Res., Inc., 2004 U.S. Dist. LEXIS 15460 (M.D.N.C. June 3, 2004) (quotations omitted) (recognizing that a Court may take judicial notice of certain documents relevant to the complaint). Case 3:16-cv-00772-RJC-DSC Document 13-1 Filed 12/27/16 Page 2 of 5 3 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). In evaluating whether a claim is stated, “[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff,” but does not consider “legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). Nor will the court accept as true “unwarranted inferences, unreasonable conclusions, or arguments.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n. 26 (4th Cir. 2009). The court may consider “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice” when deciding a Rule 12(b)(6) motion. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). II. The Complaint Fails to State a Claim Upon Which Relief Can be Granted and Should Be Dismissed with Prejudice. “Sovereign citizen” ideology asserts that the federal, state, and local governments have no authority over its adherents and that all laws or regulations passed by those bodies cannot be enforced against them. James-Bey v. Stancil, 2016 U.S. Dist. LEXIS 62313, at *4 n.1 (W.D.N.C. May 10, 2016). It is manifestly erroneous as a matter of law. Id. Plaintiff seems to assert that by disclaiming her identity with certain governmental entities, as she seems to do in the “Deed of Special Trust”, and by executing the Quit Claim deed, the Deed of Trust that she executed in favor of BANA is not enforceable. (Compl. ¶¶ 1-6, Attachments A- B). She cites no authority for this proposition and it is frivolous. A borrower cannot release herself from a deed of trust. See In re Foreclosure of a Deed of Trust, 2016 N.C. App. LEXIS 316 at *29 (N.C. Ct. App. Apr. 5, 2016) (holding that a deed of trust executed by a borrower is a valid and enforceable instrument against the subject property). Case 3:16-cv-00772-RJC-DSC Document 13-1 Filed 12/27/16 Page 3 of 5 4 Moreover, Plaintiff’s Complaint does not even attempt to state any claim for relief against BANA or Donofrio, as it simply requests that the “Trustee” perform its actions under the “Deed of Special Trust.” (Compl. Prayer for Relief). As such, Plaintiff has not stated “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face[]” against BANA or Donofrio. Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). Plaintiff’s Complaint should be dismissed with prejudice. CONCLUSION For the foregoing reasons, this Court should dismiss all claims against Defendant BANA and Donofrio with prejudice. This the 27th day of December, 2016. /s/ Nathan J. Taylor_____________________ Nathan J. Taylor (SBN #26779) McGuireWoods LLP 201 North Tryon Street, Suite 3000 Charlotte, North Carolina 28202-4011 704.343.2113 (Direct Line) 704.444.8875 (Direct FAX) ntaylor@mcguirewoods.com (E-mail) Counsel for Defendants Bank of America, N.A. and Paul Donofrio Case 3:16-cv-00772-RJC-DSC Document 13-1 Filed 12/27/16 Page 4 of 5 5 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION SHARON SHIPMAN, Plaintiff, vs. FUNDS MANAGEMENT BRANCH, DIVISION OF FEDERAL INVESTMENTS BUREAU OF THE FISCAL SERVICES; RYAN HANNA; BANK OF AMERICA; PAUL DONOFRIO SCS AND ITS TRUSTEES, Defendants. Civil Action No. 3:16-cv-00772-RJC-DSC CERTIFICATE OF SERVICE I hereby certify that on December 27, 2016, a copy of the foregoing pleading, with any and all attachments, was filed electronically with the clerk of court via ECF, which will serve all counsel of record, and served via First-Class Mail to any party not filing ECF, postage prepaid, addressed to: Sharon Chambliss Shipman 1001 East W.T. Harris Blvd Suite P104 Charlotte, NC 28262 This the 27th day of December, 2016. /s/ Nathan J. Taylor Nathan J. 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