Please ensure Javascript is enabled for purposes of website accessibility

Disgruntled homeowner’s lawsuit dismissed

Virginia Lawyers Weekly//August 1, 2022

Disgruntled homeowner’s lawsuit dismissed

Virginia Lawyers Weekly//August 1, 2022

Where a disgruntled homeowner sued both federal and private defendants for claims relating to her home purchase, maintenance and foreclosure proceedings, but there was no subject matter jurisdiction over the federal defendants, and the claims against all defendants failed to state a claim, the lawsuit was dismissed.


Marlene S. Earley asserts a litany of violations against both federal and private defendants related to plaintiff’s initial home purchase, home maintenance and foreclosure proceedings. Pending before the court are multiple motions to dismiss.


The federal defendants argue that there is no subject matter jurisdiction considering the record reveals no evidence that plaintiff ever filed a claim for injury or damages with United States Department of Housing and Urban Development, or HUD, under the Federal Tort Claims Act, or FTCA.

To begin, plaintiff has improperly named HUD as a defendant rather than the United States, which standing alone is sufficient to merit dismissal. But even if plaintiff brought these claims against the United States, no federal law mandates the waiver of immunity for alleged constitutional tort violations under FTCA.

Suggesting the application of Bivens also proves futile because such a cause of action “is available only against federal officials in their individual capacities,” and plaintiff has not named any individual federal officials as defendants in this case. Even if plaintiff’s constitutional claims proceeded to the merits, both claims fail to state a plausible claim.

While plaintiff pleads a panoply of claims under federal statute, this court finds no evidence that (a) plaintiff enjoys a private right of action under any of the cited statutes or (b) that the federal government has explicitly or even implicitly waived its sovereign immunity under any of the statutes plaintiff cites. Moreover, none of these statutes or regulations waive the United States’ presumptive sovereign immunity.

Plaintiff’s claim of “waste fraud and abuse committed within HUD during the inspection of Plaintiff’s initial home purchase or repeated reporting” also merits dismissal. Applying a favorable reading to the bare allegations of the amended complaint, plaintiff makes out no plausible claim that HUD committed fraud in connection with plaintiff’s home purchase.

Plaintiff also petitions this court to require HUD investigate her complaints in plaintiff’s preferred manner and to place her in a new, affordable home. But plaintiff’s challenge to HUD enforcement decisions is not subject to judicial review. In any event, plaintiff lacks Article III standing to assert her injunctive claims against HUD.


To the extent plaintiff seeks to enjoin the IRS from collecting any tax, her claim is barred by the Tax Anti-Injunction Act. Revisiting the amended complaint, two of the three statutes cited by plaintiff for her claims against the IRS do not provide her an avenue to seek relief before this court.

Bank of America

Plaintiff’s allegations against Bank of America, or BofA, relate to BofA’s role as a former mortgagee and servicer of plaintiff’s mortgage. BofA therefore does not qualify as a “debt collector” under the Fair Debt Collection Practices Ac, or FDCPA.

Plaintiff further alleges that BofA violated the Real Estate Settlement Procedures Act by failing to alert her that the service of her loan had been transferred from BofA to Carrington Mortgage Services LLC, or CMS, on Sept. 15, 2016. Because plaintiff filed the original complaint on Dec. 23, 2021, this claim falls outside the three-year statute of limitations. Neither has plaintiff expressly argued an equitable tolling defense.

Plaintiff generally avers fraud against all defendants in this matter. But she has failed to meet even the minimum pleading requirements of Federal Rule of Civil Procedure 9(b) as to any fraud claim against BofA.


Plaintiff’s claims based upon the HUD handbook fail to state a claim because “HUD regulations do not provide [] Plaintiff with a private right of action” and, in any event, plaintiff provides no discernable allegations in support of how CMS allegedly violated this section.

To the extent plaintiff avers that CMS violated plaintiff’s Home Affordable Modification Program Trial Payment Program agreement, that claim fails because the  program does not create a private right of action for borrowers against servicers or lenders. Similarly plaintiff lacks a private right of action to enforce the CARES Act, which is sufficient to merit dismissal of that claim. Further the amended complaint reveal no actions taken by CMS which violate the CARES Act. Finally plaintiff cannot advance her FDCPA claim against CMS because CMS is not a “debt collector” as defined by the statute.

Plaintiff has not alleged “the who, what, when, where, and how of the alleged fraud.” Additionally, each of the statutes cited by plaintiff are bare criminal statutes upon which courts are traditionally unwilling to interpret a private right of action.


Plaintiff’s claim against Erie Insurance Group arises out of an insurance claim that, on its own, raises no justiciable federal question with a private right of action. There is no diversity jurisdiction and no supplemental jurisdiction. Erie is dismissed from the suit.


Plaintiff did not serve the Law Office of Gerald Shapiro. To afford any additional time to plaintiff would interfere with judicial efficiency and the interests of justice. Therefore, the law office is dismissed without prejudice.

Defendants’ motions to dismiss granted.

Earley v. U.S. Department of Housing and Urban Development, Case No. 1:21-cv-1437, July 7, 2022. EDVA at Alexandria (Alston). VLW 022-3-294. 37 pp.

Verdicts & Settlements

See All Verdicts & Settlements

Opinion Digests

See All Digests