PLS Investments, LLC v. Ocwen Loan Servicing, LLC , 699 F. App'x 166 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1225
PLS INVESTMENTS, LLC,
Plaintiff - Appellant,
v.
OCWEN LOAN SERVICING, LLC; HSBC BANK USA, National Association as
Trustee for Fremont Home Trust 2004-B Asset Backed Certificates, Series 2004-B;
REAL HOME SERVICES AND SOLUTIONS, INC.,
Defendants - Appellees.
Appeal from the United States District Court for the Western District of North Carolina,
at Statesville. David C. Keesler, Magistrate Judge. (5:14-cv-00139-DCK)
Submitted: September 28, 2017 Decided: October 17, 2017
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John G. Vannoy, Jr., Daniel S. Johnson, VANNOY, COLVARD, TRIPLETT &
VANNOY, PLLC, North Wilkesboro, North Carolina, for Appellant. Marc James Ayers,
Birmingham, Alabama; Brian M. Rowlson, Charlotte, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
PLS Investments, LLC (“PLS”) brought this diversity action against HSBC Bank,
USA, National Association (“HSBC”), Ocwen Loan Servicing, LLC (“Ocwen”), and
REALHome Services and Solutions, Inc. (“RHSS”), alleging that Defendants wrongfully
caused PLS’s parcel of real property to be listed on various real estate websites at a steep
discount, resulting in significant diminution in the parcel’s value. PLS pleaded claims of
negligence and gross negligence, as well as a violation of North Carolina’s Unfair and
Deceptive Trade Practices Act (UDTPA), N.C. Gen. Stat. § 75-1.1 (2015). Defendants
moved for summary judgment, arguing that PLS failed to adduce evidence that
Defendants actually listed PLS’s property for sale. The magistrate judge * agreed, granted
the motion, and dismissed the complaint. PLS timely appealed, and we affirm.
We review a district court’s grant of summary judgment de novo, “viewing all
facts and reasonable inferences therefrom in the light most favorable to the nonmoving
party.” Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 208 (4th Cir. 2017) (internal
quotation marks omitted). Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a).
To prevail on a claim of negligence in North Carolina, a plaintiff must establish
the essential elements of duty, breach, proximate cause, and damages. See Ward v.
*
The parties consented to the jurisdiction of a magistrate judge. 28 U.S.C.
§ 636(c) (2012).
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Carmona, 770 S.E.2d 70, 72 (N.C. 2015). To prove gross negligence, a plaintiff must
show that the defendant acted “purposely and with knowledge that such act [was] a
breach of duty to others.” Ray v. N.C. Dep’t of Transp., 727 S.E.2d 675, 684 (N.C. 2012)
(internal quotation marks omitted). And to demonstrate a violation of the UDTPA, a
plaintiff must establish “that (1) the defendants committed an unfair or deceptive act or
practice, or an unfair method of competition, (2) in or affecting commerce, (3) which
proximately caused actual injury to the plaintiff[] or to the plaintiff[’s] business.”
Walker v. Sloan, 529 S.E.2d 236, 243 (N.C. Ct. App. 2000); see N.C. Gen. Stat. § 75-1.1.
This case arises out of the sale of three adjacent parcels of land, all of which share
the same street address. PLS purchased one of the parcels, which contained a house, for
$1.18 million (“the PLS property”), and endeavored to sell this property within a year of
purchase. HSBC acquired the other two parcels, which were unimproved lots, in a
foreclosure sale for approximately $705,000 (“parcel 6A” and “parcel 6B”).
According to PLS, in Defendants’ efforts to sell parcel 6B, Defendants actually
listed the PLS property for sale on Hubzu.com (“Hubzu”) at a price far below its market
value. This false listing then spread to other real estate websites, thereby allegedly
damaging the value of the PLS property. However, despite extensive discovery, PLS did
not produce the offending Hubzu listing. While the record reveals some confusion
stemming from the fact that the parcels share the same street address, PLS failed to
identify any evidence that Defendants marketed the PLS property. Rather, the two listing
agreements entered into by Ocwen, HSBC’s loan serving company, and RHSS, a real
estate brokerage company, specifically reference parcel 6B as the property to be listed for
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sale. Without any proof that Defendants listed the PLS property on Hubzu, PLS cannot
establish the existence of a genuine issue of material fact as to negligent acts committed
by Defendants. Moreover, as the magistrate judge held, PLS also failed to present triable
issues of fact relating to causation and damages. For several years, both before and after
HSBC attempted to sell parcel 6B, PLS consistently listed its property for roughly 50 per
cent more than its appraised value, and consequently received little interest from
prospective buyers. And while PLS’s owners estimated that the PLS property’s value
dropped by approximately $400,000 to $500,000 as a result of Defendants’ alleged
negligence, the court correctly characterized this as unsupported speculation insufficient
to permit a factfinder “to arrive at a reasonable conclusion.” Weyerhaeuser Co. v.
Godwin Bldg. Supply Co., 234 S.E.2d 605, 607 (N.C. 1977) (internal quotation marks
omitted). Thus, we conclude that the magistrate judge properly dismissed PLS’s claim
for negligence. Because PLS’s causes of action for gross negligence and a violation of
the UDTPA require even greater proof of Defendants’ alleged misconduct, we find that
the court properly dismissed these claims as well.
Accordingly, we affirm the order of the magistrate judge. We dispense with oral
argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED
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