Parker v. Chase Home Fin. LLC
| Decision Date | 19 October 2011 |
| Docket Number | Case No. 11-05043-CV-DGK |
| Parties | THOMAS PARKER and THERESA PARKER Plaintiffs, v. CHASE HOME FINANCE, LLC, et al., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
This suit arises out of the foreclosure of Plaintiffs' property. Now pending before the Court are Motions to Dismiss for Failure to State a Claim on behalf of Defendant Millsap & Singer, P.C. (Doc. 10) and Defendant JPMorgan Chase Bank, National Association (Successor by merger to Chase Home Finance, LLC) (Doc. 8). Both Defendants seek dismissal as to all claims asserted against them in Plaintiffs' "First Amended Petition to Set Aside Foreclosure And For Damages" pursuant to Fed. R. Civ. P. 8 and 12(b)(6). If its Motion to Dismiss is not granted, Defendant Millsap & Singer alternatively moves to strike portions of the Complaint pursuant to Fed. R. Civ. P. 12(f). Plaintiffs did not respond to any of these motions.
For the following reasons, the Court holds that all counts against Millsap & Singer, P.C. and JPMorgan Chase Bank, National Association (Successor by merger to Chase Home Finance, LLC) should be dismissed for failure to comply with Fed. R. Civ. P. 8 and 12(b)(6). Thus, Defendants' Motions are GRANTED and all claims are DISMISSED WITHOUT PREJUDICE.
This suit arises out of the January 4, 2011 foreclosure of Plaintiffs' property located at 9 Rocky Ridge Road in Lampe, Missouri. On February 23, 2011, Plaintiffs filed an action in the Circuit Court of Stone County, Missouri seeking to set aside the foreclosure as unlawful and to receive damages. The original complaint named four defendants (Chase Home Finance, LLC ("CHF); Millsap & Singer, P.C. ("Millsap & Singer"); Deutsche Bank National Trust Company ("Deutsche"); and WAMU Series 2007-HE1 Trust ("WAMU")) and alleged five counts collectively against all defendants: fraud, wrongful foreclosure, fair debt collection practices act, accounting, and unjust enrichment.
On March 31, 2011, before any defendant had filed a responsive pleading, Plaintiffs filed a "First Amended Petition to Set Aside Foreclosure And For Damages" ("FAP"). The FAP is identical to the original petition with a few notable exceptions including the addition of a quiet title claim and an injunction claim against all defendants and a breach of fiduciary duty/malpractice claim against Defendant Millsap & Singer.
On April 22, 2011, CHF removed the action to the United States District Court for the Western District of Missouri (Doc. 1). Plaintiffs have served process on both CHF and Millsap & Singer and have specifically requested that process not be issued with respect to Defendants Deutsche and WAMU. On May 1, 2011, CHF merged with and into JPMorgan Chase Bank, National Association ("Bank"). Therefore, CHF's Motion to Dismiss is now filed by its successor, Bank.
In their FAP, Plaintiffs allege that on February 12, 2007, they signed a Deed of Trust in the amount of $114,000 in favor of Washington Mutual Bank on property located in StoneCounty, Missouri (Doc. 9-2, ¶¶ 7-9). The original Trustee was Ozark Mountain Title. Id. ¶ 9. Plaintiffs then allege that on November 20, 2007, Millsap & Singer sent a Notice of Trustee's Sale noting that the legal holder of the note had exercised its power of acceleration; Plaintiffs claim the letter did not indicate under whose power the sale was exercised. Id. ¶ 10. On September 25, 2008 Plaintiffs indicate that Washington Mutual Bank was closed by the Office of Thrift Supervision of the U.S. Government. Id. ¶ 12. Plaintiffs allege that in February of 2009, Millsap & Singer instructed them to make a $12,000 check payable to Washington Mutual to "catch their loan up, despite that bank having been closed for months." Id. ¶¶ 13. On November 5, 2010, Plaintiffs allege that Millsap & Singer attempted a foreclosure sale, bidding in the sale on behalf of their other client, Deutsche Bank. Id. ¶ 14. Plaintiffs then claim to have written a letter to Millsap & Singer declaring the sale "void." Id. ¶¶16.
Plaintiffs further allege that under the terms of the Deed of Trust, Washington Mutual is the "Lender" on the loan and is, therefore, the only entity entitled to invoke the power of sale. Id. ¶25. They also contend that neither the Loan Servicer nor the Trustee have the power to bring an action for foreclosure in their own names. Id. ¶ 28. Plaintiff maintains that Millsap & Singer has acted unethically, serving as both attorney for the mortgagee and as Trustee for the property and refusing to remove itself from either position or to act in a manner consistent with its duty as Trustee. Id. ¶ 43. Furthermore, Plaintiffs allege that Defendants "Chase Home Finance, Deutsche Bank, and Millsap & Singer do not now and did not, at the time of the foreclosure, own the mortgage, the mortgage note, any security agreements, nor have the requisite power to represent the real party in interest." Id. ¶¶ 59. In particular, they allege that Millsap & Singer "did not have the current authority to proceed with the sale of foreclosure, norto defend the claims of the Plaintiffs because of events subsequent to closing that changed both the ownership and authority of the subject note and mortgage." Id. ¶¶ 60.
A complaint must be dismissed if it fails to state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6). In reviewing the adequacy of a complaint, the court assumes that the factual allegations in the complaint are true and construes them in the light most favorable to the plaintiff. Data Mfg, Inc. v. UPS, Inc., 557 F.3d 849, 851 (8th Cir. 2009). To survive a 12(b)(6) motion to dismiss, the complaint must do more than recite the bare elements of a cause of action. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1954 (2009). Rather, it must include "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "While a complaint . . . does not need detailed factual allegations," a plaintiff must provide the grounds of his entitlement with more than mere "labels and conclusions," or "a formulaic recitation of the elements of a cause of action." Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir. 2008) (quoting Twombly, 550 U.S. at 545 (internal citations omitted)). A complaint that alleges only "naked assertion[s] devoid of 'further factual enhancement'" will not survive a motion to dismiss. Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557).
Rule 8(a) also requires the plaintiff to give each defendant sufficient notice of the claims against it. Tatum v. State of Iowa, 822 F.2d 808, 809-10 (8th Cir. 1987) (citing Conley v. Gibson, 355 U.S. 41, 48 (1957). To put an individual defendant on sufficient notice of the claims against it, a plaintiff must explain each defendant's involvement by informing the defendant of the alleged acts of which it is accused that could result in that defendant's liability.Frey v. Herculaneum, 44 F.3d 667, 672 (8th Cir. 1995). Where a complaint fails to do this, it fails under even the most liberal pleading standard. Id.
Millsap & Singer argues that Plaintiffs' Complaint consists of nothing more than labels, conclusions, and "recitations to legal allegations," and that it therefore fails to state a claim upon which relief can be granted. Millsap & Singer also asserts that Plaintiffs fail to state a single allegation of fact showing that Defendant is liable for any alleged violation. This Court agrees and finds that Plaintiffs have failed to state a claim for any of the eight causes of action against Defendant Millsap & Singer.
As a preliminary matter, the Court notes that many of Plaintiffs' allegations are based on their position, set forth in paragraph 63 of their petition, that "[t]he sole owner of the property are the Plaintiffs, who hold the property in fee simple with no liens thereon" (Doc. 9-2, ¶ 63). The basis of this claim is Plaintiffs' assertion that "when Washington Mutual sold Plaintiff[s'] first Mortgage note without an assignment of Deed of Trust at the time of the note's sale, Plaintiff[s'] first mortgage note became an unsecured note" Id. ¶ 53.
However, Defendants state that on November 29, 2007, Millsap & Singer was appointed successor Trustee in a document recorded with the Stone County Recorder. Defendants submit a copy of the Successor Trustee Appointment as evidence (Doc. 11) and request that the Court take judicial notice of this document as a public record on file with the Recorder of Deeds. Defendants argue that this evidence demonstrates that Defendants had a right to foreclose on the disputed property, and therefore, each of Plaintiffs' claims should be dismissed for failure to statea claim. Although Courts must generally ignore materials outside the pleadings when considering a motion to dismiss, it may consider materials that are part of the public record. Noble Sys. Corp. v. Alorica Cent., LLC, 543 F.3d 978, 982 (8th Cir. 2008) (quoting Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)). Here, the Court finds that records from the Recorder of Deeds are public records and may be considered in deciding the pending motions to dismiss.
Plaintiffs have failed to respond to Millsap & Singer's motion by disputing the authenticity of the Successor Trustee Appointment, challenging the Court's consideration of this public record for purposes of deciding the instant motions, or providing citations to Missouri law challenging the Defendant's ability to foreclose on the subject property pursuant to its duty as Trustee. Rather, Plaintiffs rely solely on generalized allegations that Millsap & Singer has no authority to proceed with the foreclosure sale.
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