Smith v. Bank of Am., N.A.

• Decision Date: 20 September 2012
• Docket Number: CAUSE NO. 2:11CV120-MPM-JMV
• Parties: FREDRICK SMITH PLAINTIFF v. BANK OF AMERICA, N.A., Et Al., DEFENDANTS
• Court: U.S. District Court — Northern District of Mississippi

FREDRICK SMITH PLAINTIFF
v.
BANK OF AMERICA, N.A., Et Al., DEFENDANTS

CAUSE NO. 2:11CV120-MPM-JMV

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI DELTA DIVISION

Dated: September 20, 2012

MEMORANDUM OPINION AND ORDER
Introduction

Before the court is Defendants' Motion to Dismiss or Alternative Motion for Summary Judgment [# 39] filed March 15, 2012. After he failed to timely respond to Defendants' motion, by Order [# 43] dated August 10, 2012, the court notified pro se Plaintiff Frederick Smith that because Defendants had submitted matters outside the pleadings in support of the instant motion, the court would treat the motion as one for summary judgment. Additionally, the court explained the summary judgment procedure and granted Smith an additional fourteen days to respond to the motion. Despite this, Smith failed to respond.¹

This lawsuit arises from a dispute between the parties concerning their respective duties and obligations under a loan and/or foreclosure of Smith's home located at 7601 Broken Hickory Drive, Walls, Mississippi. Smith is seeking injunctive and declaratory relief and money damages and expressly asserts causes of action of fraud, fraudulent misrepresentation, wrongful foreclosure,

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slander of title, unlawful interference with possessory interest, and conflict of interest. By their motion, Defendants seek dismissal of each of these claims along with claims asserted under the TILA² and RICO³ . Because Smith has failed to submit any proof in support of these claims and for other reasons set out more specifically below, Defendants are entitled to judgment on certain of these claims. Additionally, because additional putative claims in the in forma pauperis Complaint-not addressed by Defendants' motion for summary judgment-fail to state a claim on which relief may be granted, the Complaint will be dismissed in its entirety.

Facts

The Complaint alleges Smith resides on property located at 7601 Broken Hickory Drive, Walls, Mississippi (the "Property"), and that he executed a Deed of Trust to Lem Adams III, as Trustee, for the benefit of Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for WMC Mortgage, which was filed on April 26, 2005, in the land records of DeSoto County in Book 2203 at Page 503. On May 19, 2011, ReconTrust notified Smith of a foreclosure sale of the Property scheduled for June 9, 2011. Smith filed the instant in forma pauperis Complaint on June 3, 2011. The Complaint alleges that Defendants must prove 1) the existence of the note, 2) that Smith signed the note, 3) that Defendants are owners or holders of the note, and 4) that a balance is due and owing on the note. Compl. ¶ 16. Smith requests injunctive relief "to stop the violation of the Foreclosure Act, the UCC, and the FDCA by Defendants," id. at ¶ 23; declaratory relief "to determine the actual status and validity of the loan, deed of truest, nominated beneficiaries, actual beneficiaries, loan servicers, [and] trustees instituting foreclosure proceedings and related matter,

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id. at ¶ 27"; and money damages.

Additional facts are relevant to the court's determination herein; however, for the sake of economy, the court will recite these facts in the analysis section of this opinion.

Summary Judgment Standard

Summary judgment shall be granted if the movant shows "that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c)(2).⁴ Summary judgment is proper "where a party fails to establish the existence of an element essential to his case and on which he bears the burden of proof." Washington v. Armstrong World Indus., 839 F.2d 1121, 1122 (5th Cir. 1988). "A complete failure of proof on an essential element renders all other facts immaterial because there is no longer a genuine issue of material fact." Id.

This court may grant summary judgment only if, viewing the facts in a light most favorable to Plaintiff, Defendants demonstrate that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995). If Defendants fail to discharge the burden of showing the absence of a genuine issue concerning any material fact, summary judgment must be denied. John v. Louisiana, 757 F.2d 698, 708 (5th Cir. 1985). The existence of an issue of material fact is a question of law that this court must decide, and in making that decision, it must "draw inferences most favorable to the party opposing the motion, and take care that no party will be improperly deprived of a trial of disputed factual

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issues." Id. at 712.

There must, however, be adequate proof in the record showing a real controversy regarding material facts. Conclusory allegations, Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990), unsubstantiated assertions, Hopper v. Frank, 16 F.3d 92, 96-97 (5th Cir. 1994), or the presence of a mere scintilla of evidence, Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994), is not enough to create a real controversy regarding material facts. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). In the absence of proof, the court does not "assume that the nonmoving party could or would prove the necessary facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (emphasis omitted).

Analysis

Defendants address seven causes of action that Smith has attempted to plead.⁵ Four arise under Mississippi common law: 1) fraud, 2) fraudulent misrepresentation, 3) wrongful foreclosure, and 4) slander of title; and three arise under federal statutory law: 1) the Fourth and Fourteenth Amendments to the United States Constitution, 2) 15 U.S.C. § 1635(a) of the Truth-in-Lending Act ("TILA") and Regulation Z, 12 C.F.R. § 226.23, and 3) Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962, et seq. The court will address each of these claims in turn.

1. Fraud and Misrepresentation Claims

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Defendants argue, inter alia, that they are entitled to summary judgment because Smith has failed to offer any proof in support of his fraud and fraudulent misrepresentation claims. The Court agrees.

For example, ¶ 29 of the Complaint states, "Defendants and all or them concealed material facts known to them but not to Plaintiffs regarding sales and assignments of the Note, transfers of the Note, and charges with the intent to defraud Plaintiffs." Additionally, ¶ 30 of the Complaint states in pertinent part:

Defendants each of them made false representations, concealments and nondisclosures with knowledge of the misrepresentations, intending to induce Plaintiff' [sic] reliance thereon, which the unsuspecting Plaintiff justifiably relied upon, resulting in general and special damages as well as mental distress.

The elements for fraud claims under Mississippi law are: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; and (9) his consequent and proximate injury. Spragins v. Sunburst Bank, 605 So. 2d 777, 780 (Miss. 1992); Shell Oil Co. v. Mills Oil Co., Inc., 717 F.2d 208, 214 (5th Cir. 1983) (citing Gardner v. State, 235 Miss. 119, 108 So. 2d 592, 594 (1959); Holland v. People's Bank and Trust Co., 3 So. 3d 94, 100 (Miss. 2008). These elements must be proved by clear and convincing evidence. Spragins, 605 So. 2d at 780. Failure to prove any one of these elements is fatal to a fraud claim. Id. at 780-81. Because Smith has submitted no evidence whatsoever in support of his fraud and fraudulent misrepresentation claims, Defendants are entitled to summary judgment.

2. Wrongful Foreclosure Claim

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In support of his wrongful foreclosure claim, Smith alleges in pertinent part the following:

36. Defendant MERS was . . . never . . . a Beneficiary of this loan or any other. MERS is solely a registration service for tracking Trust Deeds and mortgages and also the Notes. MERS records Trust Deeds in their name as a "nominee", with no actual ownership interest in the Loan . . . MERS is not a trustee and has no right to collect any payments on the Note, neither does MERS have any right to enforce the notes or to be a party in any Foreclosure proceedings. . . MERS . . . has unlawfully nominated a successive trustee.
37. Plaintiffs' [sic] alleges [sic] on information and belief that the loan was sold or transferred without notifying the Plaintiffs in writing. Therefore, the loan is void of legal rights to enforce it.
38. Plaintiffs allege that while MERS

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