Joy v. Bank of Am., N.A., Case. No.: 6:15-CV-03014-SRB

• Court: United States District Courts. 8th Circuit. Western District of Missouri
• Writing for the Court: STEPHEN R. BOUGH UNITED STATES DISTRICT JUDGE
• Decision Date: 16 September 2015
• Docket Number: Case. No.: 6:15-CV-03014-SRB
• Parties: WESLEY J. JOY and KIMBERLY O. JOY Plaintiffs, v. BANK OF AMERICA, N.A. and KOZENY & MCCUBBIN, L.C., Defendants.

WESLEY J. JOY and KIMBERLY O. JOY Plaintiffs,
v.
BANK OF AMERICA, N.A. and KOZENY & MCCUBBIN, L.C., Defendants.

Case. No.: 6:15-CV-03014-SRB

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

September 16, 2015

ORDER

Before the Court is Defendant Bank of America, N.A.'s Motion to Dismiss (Doc. #29). For the reasons stated below, Defendant's Motion to Dismiss is granted in part and denied in part. The motion is GRANTED with respect to Plaintiffs' claims for Injunctive Relief (Count I), Negligence (Count II), Declaratory Judgment (Count IV), and Wrongful Foreclosure (Count V). The motion is DENIED with respect to Plaintiffs' claim for violations of the Missouri Merchandising Practices Act (Count VII).

I. BACKGROUND

Plaintiffs Wesley and Kimberly Joy assert this action against Bank of America, N.A., their lender, ("BANA"), Federal National Mortgage Association, and Kozeny and McCubbin following the foreclosure of their property. Plaintiffs executed a Deed of Trust in connection with a purchase money loan on February 27, 2004. In 2012, Defendant BANA, the loan servicer, paid a large road tax assessment and requested repayment of the assessment from Plaintiffs within twelve months. Plaintiffs claim BANA breached its duty to Plaintiffs and failed to comply with the terms of the Deed of Trust after it paid the special tax assessment. Plaintiffs defaulted on

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their loan due to the increased payments, and Defendant FNMA took title of the property at the foreclosure sale.

In the First Amended Complaint, Plaintiffs assert five counts: (1) Temporary Restraining Order, Preliminary Injunction, Permanent Injunction, (2) Negligence against Defendant Bank of America, (3) Breach of Duty against Defendant Kozeny and McCubbin, (4) Declaratory Judgment, (5) Wrongful Foreclosure, (6) Quiet Title against Defendant FNMA, and (7) Violations of the Missouri Merchandising Practices Act against Bank of America.

On July 31, 2015, Defendant BANA filed its motion to dismiss Plaintiffs' First Amended Complaint. Plaintiffs filed their response in support of their claims for negligence and violation of the Missouri Merchandising practices Act ("MMPA"). The Court notes that Plaintiffs have failed to respond to Defendant BANA's arguments supporting dismissal of the other remaining claims.

II. LEGAL AUTHORITY

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed for "failure to state a claim upon which relief can be granted." "To survive a motion to dismiss, 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 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal citations omitted); Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015); Hamilton v. Palm, 621 F.3d 816, 817 (8th Cir. 2010). "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." Iqbal, 556 U.S. at 678; Ash v. Anderson Merchs., LLC, No. 14-3258, 2015 WL 4978701, at *1 (8th Cir. 2015).

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The court "must take all factual allegations [made by the plaintiff] as true when considering a motion to dismiss." Great Plains Trust Co. v. Union Pac. R.R. Co., 492 F.3d 986, 995 (8th Cir. 2007); Data Mfg., Inc. v. United Parcel Service, Inc., 557 F.3d 849, 851 (8th Cir. 2009) (noting "[t]he factual allegations of a complaint are assumed true and construed in favor of the plaintiff, even if it strikes a savvy judge that actual proof of those facts is improbable."). However, factual allegations which represent "legal conclusions or formulaic recitation of the elements of a cause of action . . . may properly be set aside." Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)) (internal citations omitted). The pleading standard "does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotations omitted); see, e.g., Ritchie v. St. Louis Jewish Light, 630 F.3d 713, 717 (8th Cir. 2011) (finding the district court appropriately granted a motion to dismiss where "facts pleaded in [plaintiff's] complaint [did] not permit [the court] to infer more than the mere possibility of misconduct.").

The "evaluation of a complaint upon a motion to dismiss is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Braden, 588 F.3d at 594 (internal citations omitted). "[T]he complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible." Braden, 588 F.3d at 594; see also Zoltek Corp. v. Structural Polymer Group, 592 F.3d 893 n. 4 (8th Cir. 2010) (noting the court's task "is to review the plausibility of the plaintiff's claim as a whole, not the plausibility of each individual allegation."). "In addressing a motion to dismiss, the court may consider the pleadings themselves, material embraced by the pleadings, exhibits attached to the

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pleadings, and matters of public record." Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th Cir. 2011) (internal...