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5:13-cv-00103-JMC Date Filed 07/10/13 Entry Number 11 Page 1 of 5



Civil Action No. 5:13-cv-00103-JMC




John C. Carrington and
Deborah T. Carrington




Mortgage Electronic Registration Systems, )
Inc. and IndyMac Bank, F.S.B.,



This matter is before the court on Mortgage Electronic Registration Systems, Inc.’s

(“MERS”) Motion to Dismiss (“Motion”)1, [Dkt. No. 4], John C. Carrington and Deborah C.

Carrington’s (“Plaintiffs”) Complaint, [Dkt. No. 1]. For the reasons discussed below, the court

grants the Motion.


Plaintiffs brought the present action to quiet the title on their principal residence in

Orangeburg County (“the Residence”) on January 9, 2013. [Dkt. No. 1]. Plaintiffs executed and

delivered a note and mortgage to IndyMac Bank, F.S.B. (“IndyMac”), granting a lien on the

Residence. MERS’ Memorandum in Support of Motion to Dismiss [Dkt. No. 4-1 at 2]2. The

mortgage, which confirms the obligations under the note, was filed and recorded in the public

records of Orangeburg County. Id. Plaintiffs admit that they have not made any payments for at

least a year. Id. Despite acknowledging having executed the instruments and failing to make

payments, Plaintiffs contend that the loan and mortgage are not enforceable because Defendants

1 Although Plaintiffs filed complaints against IndyMac and MERs, IndyMac did not join MERS in filing this Motion.
2 In Plaintiffs’ Memorandum in Support of Denial of MERS’ Motion, [Dkt. No. 9-1 at 2], Plaintiffs have agreed with
the facts as set forth in MERS’ Memorandum in Support of Motion to Dismiss; therefore, for the purposes of this
Motion, the court assumes that these facts are true.


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cannot produce the original documents. [Dkt. No. 1]. Alternatively, Plaintiffs request that the

court compel Defendants to foreclose on the subject property. Id. MERS counters that

Plaintiffs’ Complaint fails to state a claim on which relief can be granted because under South

Carolina law, an original instrument need not be produced to permit foreclosure and because

Plaintiffs cannot compel them to select and exercise a remedy. [Dkt. No. 4-1 at 2-3].


For a complaint to survive a motion to dismiss, the Federal Rules of Civil Procedure

require that it contain “a short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although Rule 8(a) does not require “detailed factual

allegations,” it requires “more than an unadorned, the-defendant-unlawfully-harmed-me

accusation,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555–57 (2007)), in order to “give the defendant fair notice . . . of what the claim is and

the grounds upon which it rests,” Twombly, 550 U.S. at 555 (internal citations omitted). Stated

otherwise, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at

570). A claim is facially plausible “when the plaintiff pleads factual content that allows the court

to draw [a] reasonable inference that the defendant is liable for the misconduct alleged.” Id.

(quoting Twombly, 550 U.S. at 556). A complaint alleging facts which are “merely consistent

with a defendants’ liability . . . stops short of the line between possibility and plausibility of

‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks


Additionally, the Federal Rules of Civil Procedure set forth the appropriate form of

pleadings and require a party to present its “claims or defenses in numbered paragraphs, each


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limited as far as practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b). Furthermore,

“[i]f doing so would promote clarity, each claim founded on a separate transaction or occurrence

. . . must be stated in a separate count or defense.” Id. The pleading requirements of Rule 8 and

Rule 10 interact cohesively to enable the opposing party and the court to discern the nature and

bases of the claims made. See Cunningham v. LeGrand, C.A. No. 2:11–cv–0142, 2011 WL

1807360, at * 2 (S.D.W. Va. May 10, 2011) (quoting Fikes v. City of Daphne, 79 F.3d 1079,

1082–83 (11th Cir. 1996)).

In evaluating a motion to dismiss, a plaintiff's well-pleaded allegations are taken as true,

and the complaint, including all reasonable inferences therefrom, is liberally construed in the

plaintiff's favor. McNair v. Lend Lease Trucks, Inc., 95 F.3d 325, 327 (4th Cir. 1996). The court

may consider only the facts alleged in the complaint, which may include any documents either

attached to or incorporated in the complaint, and matters of which the court may take judicial

notice. Tellabs v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the court

must accept the plaintiff's factual allegations as true, any conclusory allegations are not entitled

to an assumption of truth, and even those allegations pled with factual support need only be

accepted to the extent that “they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at



Strangely, Plaintiffs do not contest the fact that they owe money on the mortgage, or the

amount that they owe. Rather, they argue that because Defendants3 have not produced the

original documents upon request, their liability for the debt has been extinguished. Plaintiffs

3 For the purposes of this Motion, the court assumes that all Plaintiffs’ factual allegations in the pleadings are true, in
particular, that MERS is a proper Defendant. However, in their Motion, MERS asserts, without supporting
evidence, that they are not a proper Defendant. The court need not resolve this factual dispute as Plaintiffs’ claims
are dismissed.


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argue that Defendants’ refusal or inability to produce these documents has created a cloud on the

title and that Defendants cannot foreclose on the subject property without these documents. This

argument is not compelling for several reasons. First, the purpose of producing these original

documents in a foreclosure action is to verify the terms of the agreement—including how much

money Plaintiffs owe, if any, and to whom they owe it. However, here, Plaintiffs do not contest

that they owe money or the amount that they owe. Next, even if Plaintiffs did dispute their

underlying debt, South Carolina law allows banks and lending institutions to copy promissory

notes and records by digitizing them or other means. See S.C. Code § 34-3-540 (1998)4. These

reproductions are considered original records for evidentiary purposes, even if the original

documents have actually been discarded. Id. Finally, even if MERS no longer had the originals

and had not copied them, other evidence of the documents’ contents would be admissible. See

Rule 1004, SCRE; see also Windham v. Lloyd, 172 S.E.2d 117 (S.C. 1970) (noting that if it was

shown that the original document in a foreclosure action was lost, destroyed, or unavailable, the

admission of secondary evidence was justified). Therefore, Plaintiffs’ first count does not state a

claim upon which relief can be granted because Defendants are not required to produce the

original documents in a foreclosure action.

Alternatively, Plaintiffs request that the court compel Defendants to foreclose on the

subject property. However, this is a baseless request. A mortgage creates a right, not a

requirement, to foreclose if the debtor defaults. See, e.g., Lever v. Lighting Galleries, Inc., 647

S.E.2d 214 (S.C. 2007); see also U.S. Bank Trust Nat. Ass’n v. Bell, 684 S.E.2d 199 (S.C. Ct.

App. 2009). Additionally, the terms of the mortgage allowed the mortgagee to forbear the right

to foreclosure without relinquishing it. [Dkt. 10-1]. Therefore, the mortgagee may choose to

4 The court assumes without deciding that MERS is within the scope of this statute, and Plaintiffs have not alleged


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foreclose or not to foreclose on the subject property at any point before the applicable statute of

limitations, S.C. Code § 15-3-520 (1988), has tolled.


For the foregoing reasons, the court GRANTS MERS’ Motion to Dismiss, [Dkt. No. 4].

Plaintiffs’ claims against Defendant Mortgage Electronic Registration Systems, Inc. are



July 10, 2013
Greenville, South Carolina

United States District Judge