Howard v. ABN Amro Mortg. Grp., Inc.

• Decision Date: 26 March 2014
• Docket Number: CAUSE NO. 1:13CV543-KS-MTP
• Court: U.S. District Court — Southern District of Mississippi
• Parties: TAMMY T. HOWARD PLAINTIFF v. ABN AMRO MORTGAGE GROUP, INC.; CITIMORTGAGE, INC.; FEDERAL HOME LOAN BANK CHICAGO C/O WELLS FARGO; and JOHN DOES 1-10 DEFENDANTS

TAMMY T. HOWARD PLAINTIFF v. ABN AMRO MORTGAGE GROUP, INC.; CITIMORTGAGE, INC.;FEDERAL HOME LOAN BANK CHICAGO C/O WELLS FARGO; and JOHN DOES 1-10 DEFENDANTS

CAUSE NO. 1:13CV543-KS-MTP

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION

SO ORDERED AND ADJUDGED: March 26, 2014

MEMORANDUM OPINION AND ORDER

This matter is before the Court on two motions: (1) Defendants CitiMortgage, Inc. ("CitiMortgage") and ABN AMRO Mortgage Group, Inc.'s ("ABN") Motion to Dismiss [7]; and (2) Defendants Federal Home Loan Bank Chicago c/o Wells Fargo ("FHLB") and Wells Fargo's Motion to Dismiss [9]. Having considered the submissions of the parties, the record, and the applicable law, the Court finds that FHLB and Wells Fargo's Motion to Dismiss [9] should be granted, and that CitiMortgage and ABN's Motion to Dismiss [7] should be granted in part and denied in part.

BACKGROUND

Plaintiff Tammy T. Howard is the owner of certain real property located in Greene County, Mississippi (the "Subject Property"). On November 24, 2003, Plaintiff and her husband, John W. Howard, executed a Note [7-1] and Deed of Trust [7-2], encumbering the Subject Property, in order to secure a loan in the amount of $128,000.00. ABN is listed as the "Lender" under the Note and Deed of Trust. In 2007, ABN and CitiMortgage merged with only CitiMortgage surviving the merger. (See Miss. Sec'y ofState Filings [1-2].)¹ In August of that same year, Plaintiff and her husband received a letter stating that the servicing of their mortgage loan was being transferred from ABN to CitiMortage, and that future loan payments should be forwarded to CitiMortgage. (See August 10, 2007 Letter [7-3].)

On June 24, 2013, Plaintiff filed suit against ABN, CitiMortgage, FHLB, and Wells Fargo in the Circuit Court of Greene County, Mississippi, alleging numerous claims relating to the mortgage loan. (See Compl. [1-1 at ECF p. 8].) The Complaint, which is far from a model of clarity as to the specific claims alleged or the conduct of each Defendant giving rise to the Plaintiff's various allegations of wrongdoing, appears to assert the following causes of action: breach of contract; breach of the covenant of good faith and fair dealing; fraud; negligence; breach of fiduciary duty; failure to adequately evaluate Plaintiff's loan for a Home Affordable Modification Program ("HAMP") modification;² violation of the Fair Debt Collection Practices Act; violation of the Real Estate Settlement Procedures Act; negligent credit reporting; and conspiracy. The Complaint states that the Plaintiff executed the Note and Deed of Trust in favor of ABN; identifies CitiMortgage as the master servicer of the Plaintiff's mortgage; and alleges, "[u]pon information and belief," that FHLB and Wells Fargo are "the investor of the Note and Deed of Trust". (See Compl. [1-1 at ECF pp. 9, 11].) Plaintiff seeks monetary relief and requests that the "Defendants be ordered to surrender the subjectproperty . . . ." (Compl. [1-1 at ECF p. 21].) Plaintiff further prays that she "be entitled to strip this mortgage." (Compl. [1-1 at ECF p. 21].)

On July 29, 2013, CitiMortgage and ABN removed the proceeding to this Court. (See Notice of Removal [1].) Subject matter jurisdiction is asserted on the basis of federal question, diversity of citizenship, and supplemental jurisdiction. See 28 U.S.C. §§ 1331, 1332, 1367. On August 26, 2013, Wells Fargo and FHLB joined in and consented to the removal. (See Doc. Nos. [5], [6].) The Defendants filed their respective dismissal motions the following day, on August 27.

DISCUSSION

I. Wells Fargo and FHLB's Motion to Dismiss [9]

Wells Fargo and FHLB seek dismissal of the Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). To withstand a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.; see also In re Great Lakes Dredge & Dock Co., 624 F.3d 201, 210 (5th Cir. 2010) ("To be plausible, the complaint's '[f]actual allegations must be enough to raise a right to relief above the speculative level.'") (quoting Twombly, 550 U.S. at 555). A complaint containing mere "labels and conclusions, or a formulaic recitation of the elements" is insufficient. Bowlby v. City ofAberdeen, Miss., 681 F.3d 215, 219 (5th Cir. 2012) (citation and internal quotation marks omitted). Although courts are to accept all well-pleaded facts as true and view those facts in the light most favorable to the nonmoving party, courts are not required "to accept as true a legal conclusion couched as factual allegation." Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (citations omitted). Ultimately, the court's task "is to determine whether the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of success." In re McCoy, 666 F.3d 924, 926 (5th Cir. 2012) (citing Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)). A court may consider matters of public record and documents that are referenced in the complaint and central to the plaintiff's claim in deciding a Rule 12(b)(6) motion. See Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 570 n.2 (5th Cir. 2005) (citations omitted).

Wells Fargo and FHLB argue that the Complaint fails to state a claim against them on the following basis:

Plaintiff has not levied a single factual allegation pertaining to these Defendants. Indeed, while Plaintiff asserts a morass of conclusory allegations directed toward unidentified "servicers" and "Defendants" generally, the Complaint contains only a single sentence naming FHLBC or Wells Fargo: "Upon information and belief, the investor of the Note and Deed of Trust is Federal Home Loan Bank - Chicago C/O Wells Fargo." (Compl. ¶ 9.)

(Wells Fargo and FHLB's Brief in Supp. of Mot. to Dismiss [10] at p. 1.) The Court agrees with this argument. Most of the averments in the Complaint that can be construed as asserting facts, as opposed to inoperative legal conclusions, are aimed at CitiMortgage or the "servicers". The Complaint is devoid of well-pleaded allegations leading to the plausible inference that FHLB and Wells Fargo, as "investor[s]" in theNote and Deed of Trust, are one and the same as CitiMortgage or "servicers" of the Plaintiff's loan. Plaintiff's numerous conclusory assertions of wrongdoing against all of the "Defendants" are also insufficient. For example, paragraph 45 of the Complaint asserts that "[t]he Defendants failed to adequately evaluate and determine Plaintiff's eligibility for loan modification as required [by] . . . . [HAMP] and other programs such as the National Mortgage Settlement Program." (Compl. [1-1 at ECF pp. 17-18].) The previous forty-four (44) paragraphs of the Complaint do not discuss any requests for loan modification made by the Plaintiff to Wells Fargo or FHLB. Instead, Plaintiff claims that "CMI [CitiMortgage] has denied every such request for modification . . . ." (Compl. [1-1 at ECF p. 14].) Paragraph 51 of the Complaint alleges that "[t]he Defendants have been negligent in their handling of the Plaintiff's mortgage, their servicing of the Plaintiff's mortgage, [sic] in failing to make disclosures related to the Plaintiff's mortgage, as discussed above and as may be shown through the course of discovery." (Compl. [1-1 at ECF p. 19].) The previous fifty (50) paragraphs of the Complaint neither evidence any handling or servicing of the Plaintiff's mortgage by Wells Fargo or FHLB, nor lead to the reasonable inference that these Defendants were required to make any disclosures to the Plaintiff related to the mortgage. The Court could go on, but the pattern is the same. The Complaint makes passing references to various wrongs committed by the "Defendants," but fails to present any factual content tying FHLB or Well Fargo to the alleged acts or omissions.

The Supreme Court has held that "a naked assertion of" wrongdoing devoid of "further factual enhancement" falls short of the pleading requirements of Federal Rule of Civil Procedure 8(a)(2). Twombly, 550 U.S. at 557. Similarly, the Fifth Circuit hasprovided that "[w]here the complaint is devoid of facts that would put the defendant on notice as to what conduct supports the claims, the complaint fails to satisfy the requirement of notice pleading." Anderson v. U.S. Dep't of Hous. & Urban Dev., 554 F.3d 525, 528 (5th Cir. 2008) (citing Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 165-66 (5th Cir. 1999)). It necessarily follows that the Plaintiff's "conclusory allegations against all 'defendants'" fail to state a claim upon which relief can be granted as to FHLB and Wells Fargo. Bunton v. Corr. Corp. of Am., No. 4:04cv354, 2007 WL 2077690, at *3 (N.D. Miss. July 11, 2007) (finding dismissal appropriate in the absence of factual allegations pertaining to a particular defendant); cf. Rogers v. Nationwide Prop. & Cas. Ins. Co., 433 F. Supp. 2d 772, 776 (S.D. Miss. 2006) (holding that the plaintiffs' non-fact specific assertions of wrongdoing as to all defendants failed to establish a possibility of recovery against a non-diverse defendant in determining fraudulent joinder); Banger v. Magnolia Nursing Home, L.P., 234 F. Supp. 2d 633, 638 (S.D. Miss. 2002) (same).

Plaintiff's opposition to dismissal focuses on the possibility that facts revealed in discovery will support her "good faith belief" that all Defendants have a contractual relationship resulting in shared liability on her claims:

At bottom, although the

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