Stern v. Bank of Am. Corp.

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Citation112 F.Supp.3d 1297
Docket NumberCase No. 2:15–cv–153–FtM–29CM.
Parties David STERN, Personal Representative of the Khaki Realty Trust, Plaintiff, v. BANK OF AMERICA CORPORATION, Defendant.
Decision Date30 June 2015

112 F.Supp.3d 1297

David STERN, Personal Representative of the Khaki Realty Trust, Plaintiff,

Case No. 2:15–cv–153–FtM–29CM.

United States District Court, M.D. Florida, Fort Myers Division.

Signed June 30, 2015.

112 F.Supp.3d 1298

Adam Jeffrey Stevens, Jackman, Stevens, Ricciardi & McClurg, P.A., Ft. Myers, FL, Richard Ricciardi, Burandt, Adamski & Feichthaler, PL, Cape Coral, FL, for Plaintiff.

William P. Heller, Gregory King, Marc J. Gottlieb, Akerman Senterfitt, LLP, Ft. Lauderdale, FL, for Defendant.


JOHN E. STEELE, Senior District Judge.

This matter comes before the Court on review of Defendant's Motion to Dismiss Plaintiff's Amended Complaint (Doc. # 11) filed on March 30, 2015. Plaintiff filed a Response (Doc. # 17) on April 8, 2015. For the reasons set forth below, the motion is granted.


Plaintiff David Stern (Stern), acting as personal representative of the Khaki Realty Trust (the Trust) has filed an Amended Complaint (Doc. # 9) against Defendant Bank of America Corporation (BOA) seeking a declaratory judgment concerning a parcel of real property owned by the Trust. The underlying facts, as set forth in the Amended Complaint, are as follows:

Stern, via the Trust, owns a parcel of real property (the Property) located in Cape Coral, Florida. (Id. at ¶ 3.) The Property was originally purchased by Ana

112 F.Supp.3d 1299

and Marvin Fuller (the Fullers) in 2005 and the Fullers executed a mortgage (the Mortgage) at the time of purchase. (Id. at ¶¶ 8–9.) Sometime thereafter, the Mortgage was assigned to Countrywide Home Loans, Inc. (Countrywide). (Id. at ¶¶ 10.) As a result of the Fullers' failure to make required mortgage payments, Countrywide accelerated the mortgage and filed a mortgage foreclosure action. (Id. at ¶¶ 10, 25.) In April 2008, the Fullers filed for bankruptcy and, ultimately, received a discharge of their debts including their mortgage obligation. (Id. at ¶¶ 11–12.) In 2011, the mortgage foreclosure action against the Fullers was dismissed without prejudice. (Id. at ¶ 13.) The Mortgage was assigned to BOA in 2014. (Id. at ¶ 14.) In April 2014, Marvin Fuller died. Subsequently, Ana Fuller executed a quitclaim deed transferring to Stern her right, title, and interest in the Property. (Id. at ¶ ¶ 16–17.) BOA is currently in possession of the Property and has taken actions to prevent Stern from accessing and occupying it. (Id. at ¶ 15.)

Based on these allegations, Stern seeks a declaratory judgment (1) that the statute of limitations bars BOA from foreclosing upon the Property; (2) that BOA is not entitled to possession of the property; and (3) that BOA must yield possession of the property to the Trust. BOA now moves to dismiss, arguing that the Amended Complaint fails to state a claim upon which relief can be granted.


Under Federal Rule of Civil Procedure 8(a)(2), a Complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). This obligation "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). To survive dismissal, the factual allegations must be "plausible" and "must be enough to raise a right to relief above the speculative level." Id. at 555, 127 S.Ct. 1955. See also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir.2010). This requires "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citations omitted).

In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), but "[l]egal conclusions without adequate factual support are entitled to no assumption of truth," Mamani v. Berzaín, 654 F.3d 1148, 1153 (11th Cir.2011) (citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "Factual allegations that are merely consistent with a defendant's liability fall short of being facially plausible." Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir.2012) (internal quotation marks and citations omitted). Thus, the Court engages in a two-step approach: "When there are...

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5 cases
  • In re Koyle, Case No. 2:15-CV-00239
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • March 8, 2016
    ...still has the right to file later foreclosure actions. . . so long as they are based on separate defaults." Stern v Bank of Am. Corp.,112 F. Supp. 3d 1297, 1300 (M.D. Fla. 2015).36 In Utah, borrowers have three months within which to cure defaults on their loans after a notice of default ha......
  • Christiana Trust v. Taveras, 5D15–680.
    • United States
    • Court of Appeal of Florida (US)
    • February 19, 2016
    ...(Bkrtcy.M.D.Fla.2015) ; Summerlin Asset Mgmt. V Trust v. Jackson, 2015 WL 4065372 (S.D.Fla. July 2, 2015) ; Stern v. Bank of Am. Corp., 112 F.Supp.3d 1297 (M.D.Fla.2015) ; LNB–017–13, LLC v. HSBC Bank USA, 96 F.Supp.3d 1358 (S.D.Fla.2015). We further note that Beauvais has been set for rehe......
  • Trust Mortg. LLC v. Residential Credit Solutions Inc. (In re Gonzalez), CASE NO. 15–17653–RAM
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Southern District of Florida
    • January 12, 2016
    ...that have ruled on this issue have all reached the opposite conclusion as the Beauvais court. See e.g. Stern v. Bank of America Corp. 112 F.Supp.3d 1297 (M.D.Fla.2015) (expressly rejecting the holding in Beauvais ); Torres v. Countrywide Home Loans, Inc., 2014 WL 3742141, at *1 (S.D.Fla. Ju......
  • Leon v. Integon Nat'l Ins. Co., Case No: 2:18-cv-673-FtM-38CM
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • October 30, 2018
    ...documents outside the pleadings if they are central to the claim and their authenticity is undisputed. Stern v. Bank of America Corp., 112 F. Supp. 3d 1297, 1301 (M.D. Fla. 2015) (citing Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005)). Here, Leon did not attach the Policy to her Compla......
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