Kantz v. Rubin Lublin, PLLC
| Decision Date | 06 April 2015 |
| Docket Number | No. 3:14-01113,3:14-01113 |
| Court | U.S. District Court — Middle District of Tennessee |
| Parties | WILLIAM E. KANTZ, JR., Plaintiff, v. RUBIN LUBLIN, PLLC, et al., Defendants. |
MEMORANDUM
Plaintiff, William E. Kantz, Jr., a Tennessee citizen, originally filed this action in the Circuit Court for Davidson County, Tennessee, against Defendants, Rubin Lublin, PLLC, a Tennessee professional limited liability company, Rubin Lublin, LLC, a Georgia limited liability company, and Federal Home Loan Mortgage Corporation ("FHLMC" or "Freddie Mac"). Plaintiff asserts claims for fraud, breach of contract, violation of the Tennessee Consumer Protection Act ("TCPA") Tenn. Code Ann. § 47-18-104(b)(39), and violation of the Fair Debt Collection Practices Act 15 U.S.C. § 1692 against Defendants Rubin Lublin TN, PLLC and/or Rubin Lublin LLC (collectively, "Rubin Lublin").
Plaintiff seeks declaratory relief that the Court determine that Defendant Rubin Lublin, acting as substitute trustee, failed to execute its duties under the deed of trust properly in conducting a foreclosure sale of Plaintiff's house, namely that no one appeared at the Davidson County Courthouse to cry the sale, and therefore the trustee's deed conveying the property to FHLMC was void. Plaintiff does not assert any substantive claim against Defendant FHLMC, but seeks reliefagainst Defendant FHLMC to set aside the trustee's deed. Defendants removed this action to this Court under 28 U.S.C. § 1331, the federal question statute.
This action arises out of Plaintiff's allegations that on February 20, 2014, at the Davidson County courthouse, no one on behalf of Defendant Rubin Lublin appeared at the foreclosure sale of Plaintiff's property to cry the sale of the property and that a sale of the property did not occur. On March 24, 2014, Plaintiff filed his action in the Circuit Court for Davidson County, Tennessee, that was later removed to this Court on May 6, 2014. Plaintiff's motion to amend his complaint was granted on May 12, 2014. (Docket Entry No. 13). On May 30, 2014, Plaintiff filed a second amended complaint. (Docket Entry No. 23). Defendant Rubin Lublin filed a motion to dismiss for failure to state a claim (Docket Entry No. 29).
On June 27, 2014, the Court conducted a case management conference. The Court stayed all proceedings for sixty (60) days and gave Plaintiff 30 days to arrange the repurchase of the property. The Court gave Defendant Rubin Lublin 30 days within which to arrange notice and foreclose on the property if Plaintiff failed to repurchase the property. Thereafter, the parties were to brief whether the claims were mooted. On August 26, 2014, Defendant Rubin Lublin filed notice that it held a trustee's sale, foreclosing on Plaintiff's property. (Docket Entry No. 43, Report of Trustee's Sale). On September 2, 2014, the Court granted Defendant Rubin Lublin's motion to stay discovery (Docket Entry No. 41) pending briefing on the mootness of claims and a ruling on Defendant Rubin Lublin's motion to dismiss (Docket Entry No. 29). See Docket Entry No. 46.
Before the Court is Defendant Rubin Lublin's motions to dismiss for failure to state a claim (Docket Entry No. 29); Defendant Rubin Lublin's motions to dismiss as moot (Docket Entry No. 49); Defendant FHLMC's motion to dismiss (Docket Entry No. 47); Plaintiff's motion for leave tofile third amended complaint (Docket Entry No. 61); Plaintiff's motion for clarification of response dates and/or request for briefing schedule (Docket Entry No. 67); Plaintiff's motion to accept memorandum of law in support of response to Defendant Rubin Lublin's motion to dismiss (Docket Entry No. 68); and Plaintiff's motion for partial summary judgment (Docket Entry No. 72).
In its motion to dismiss (Docket Entry No. 47), Defendant FHLMC contends that, as a result of the subsequent August 26, 2014 foreclosure sale, Plaintiff's claims against this Defendant are moot. Specifically, Defendant FHLMC contends that because the only relief sought against it is to set aside the initial trustee's deed arising from the February 20, 2014 foreclosure sale the recording of a new trustee's deed, following the second foreclosure sale on August 26, 2014, renders any claims against FHLMC as to the first foreclosure sale moot.
Plaintiff filed a response in opposition (Docket Entry No. 62) contending that he has filed a motion for leave to file a third amended complaint (Docket Entry No. 61) that asserts additional claims against FHLMC. Specifically, Plaintiff contends that the claims asserted against Defendant FHLMC in the third amended complaint, including violation of the Real Estate Settlement Practices Act, Fair Debt Collection Practices Act, Truth in Lending Act, and Tennessee Consumer Protection Act, relate to FHLMC's conduct following the initial February 20, 2014 foreclosure sale and are not rendered moot by the second foreclosure sale.
In its motion to dismiss as moot (Docket Entry No. 49), Defendant Rubin Lublin contends that because Plaintiff was given an exclusive opportunity to buy the property following the Court's June 27, 2014 case management conference and a new sale was completed on August 26, 2014 by the same purchaser and at the same sales price as the February 2014 sale, Plaintiff's claims are therefore moot. Defendant Rubin Lublin argues that to the extent any claims are not mooted by thesubsequent property sale these claims should be dismissed for failure to state a claim based upon the reasons stated in its prior motion to dismiss (Docket Entry No. 29).
In that motion, Defendant Rubin Lublin contends that: (1) Rubin Lublin, LLC should be dismissed as the appointment of substitute trustee and substitute trustee's deed reflect that the only trustee of the deed of trust was Rubin Lublin TN, PLLC; (2) the substitute trustee's deed is prima facie evidence that the sale took place and that notice was sent; (3) plaintiff has failed to properly plead a claim for fraud under Fed. R. Civ. P. 9(b); (4) Plaintiff cannot show the existence of a contract between him and Defendant Rubin Lublin as the deed of trust contains covenants only between the "Borrower and Lender;" (5) Plaintiff fails to identify the provision of the alleged contract that was breached; (6) an allegation of no notice or improper notice is implausible as Plaintiff had some notice of the foreclosure sale; (7) Plaintiff fails to state properly a claim under the TCPA as Plaintiff fails to set forth any particular allegations of intentionally fraudulent conduct or show any detrimental reliance; and (8) that Plaintiff fails to specify which provision under the FDCPA that he believes was violated or to show that Defendant Rubin Lublin qualifies as a debt collector.
Plaintiff did not file a response to Defendant Rubin Lublin's Rule 12(b)(6) motion, but filed a response (Docket Entry No. 65) to Defendant Rubin Lublin's motion to dismiss as moot (Docket Entry No. 49), asserting that the motion should be denied as he has filed a motion for leave to file a third amended complaint (Docket Entry No. 61). Plaintiff asserts, in essence, that the third amended complaint includes violations of the Real Estate Settlement Practices Act, Fair Debt Collection Practices Act, Truth in Lending Act, and Tennessee Consumer Protection Act that relateto Defendant Rubin Lublin's conduct following the initial February 20, 2014 foreclosure sale and are not rendered moot by the second foreclosure sale.
Plaintiff filed a second response (Docket Entry No. 66) to Defendant Rubin Lublin's motion to dismiss as moot, asserting his motion for leave to file a third amended complaint as a bases for denying Defendant Rubin Lublin's motion to dismiss. Plaintiff also asserts that he could have purchased the property on February 20, 2014, had the foreclosure sale actually been conducted; that Defendant Rubin Lublin and Bank of America, N.A. ("BANA") intentionally inflated the price following the June 27, 2104 case management conference to prevent him from repurchasing his property; and that Plaintiff is not required to have any damages to seek a declaratory judgment that an act or practice violates the TCPA.
In his motion for partial summary judgment (Docket Entry No. 72), Plaintiff contends that Defendant Rubin Lublin violated Tenn. Code Ann. §47-18-104(b)(39) of the TCPA by falsely representing that it or its agent conducted the foreclosure on Plaintiff's house when it knew that the foreclosure was not actually conducted as advertised. In response (Docket Entry No. 79), Defendant Rubin Lublin contends that Plaintiff's motion is unsupported by evidence as Plaintiff's "affidavit" is neither signed nor notarized and fails to set forth any facts that can support a claim that Defendant Rubin Lublin violated the TCPA; that the TCPA does not apply in this action; Plaintiff fails to prove the elements of a TCPA claim; and that Plaintiff's motion is premature as no answers have been filed by any Defendant, Defendants Rubin Lublin and FHLMC have pending dispositive motions, and the Court has stayed discovery until these motions are decided.
The Court granted Plaintiff three extensions of time to file a response to Defendants' motions to dismiss, giving Plaintiff from October 3, 2014 to October 27, 2014 to file a response. (Docket Entry Nos. 52, 55 and 59). After granting the third extension, the Court warned Plaintiff it was the final extension. (Docket Entry No. 59). On October 27, 2014, Plaintiff filed a response (Docket Entry No. 65) to Defendant Rubin Lublin's motion to dismiss as moot (Docket Entry No. 49). On October 28, 2014, one day past the deadline extension, Plaintiff filed his memorandum in support of his response (Docket Entry No. 66) to Defendant Rubin Lublin's motion to dismiss as moot.
On October 29, 2014, Plaintiff filed a motion to accept his late filed memorandum of law in support of his...
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