Summerlin v. Shellpoint Mortg. Servs.

• Citation: 165 F.Supp.3d 1099
• Decision Date: 29 February 2016
• Docket Number: Case No.: 2:15-cv-00039-RDP
• Parties: Kathy Summerlin, Plaintiff, v. Shellpoint Mortgage Services, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

165 F.Supp.3d 1099

Kathy Summerlin, Plaintiff,

v.Shellpoint Mortgage Services, et al., Defendants.

Case No.: 2:15-cv-00039-RDP

United States District Court, N.D. Alabama, Southern Division.

Signed February 29, 2016

Kathy Summerlin, Dora, AL, pro se.

Patrick L.W. Sefton, Sasser Sefton & Brown PC, Montgomery, AL, Stephen B. Porterfield, Sirote and Permutt PC, Birmingham, AL, for Defendants.

MEMORANDUM OPINION

R. DAVID PROCTOR

, UNITED STATES DISTRICT JUDGE

I. Introduction

The court has before it Defendant Shellpoint Mortgage Services's Motion to Dismiss Plaintiff's Amended Complaint (Doc. # 14), filed April 24, 2015. Shellpoint filed a Brief in Support of its Motion to Dismiss (Doc. # 15). Plaintiff¹ had the opportunity to file a responsive brief but did not do so. Therefore, Shellpoint's Motion is ripe for review. For the reasons outlined below, the court finds that the Motion is due to be granted and this case is due to be dismissed with prejudice.

II. Facts and Procedural History

Plaintiff brought this case pro se to stop foreclosure of her home in Jefferson County, Alabama, and alleged violations of the Real Estate Settlement Practices Act (“RESPA”) and the Fair Debt Collection Practices Act (“FDCPA”) relating to a notice of service transfer, violations of the FDCPA concerning a pre-foreclosure notice, and fraud upon origination of her mortgage loan, among other things. The court discerns the following allegations supporting those claims from Plaintiff's Amended Complaint and the many, non-enumerated exhibits attached to the Amended Complaint.²

On May 6, 2008, Plaintiff received a loan from Empire Equity Group Inc. d/b/a 1st Metropolitan Mortgage, which was secured by a mortgage and promissory note (the “Note”). (Doc. # 13). The agent and payee on the Note was Taylor, Bean & Whitaker Mortgage Corp. (“TB&W”). (Id. ). The Note was supported by a Direct Endorsement Approval for a HUD/FHA-Insured Mortgage. (Id. ). With an Assignment of Mortgage dated May 6, 2008 (the “Assignment”), from Mortgage Electronic Registration Systems, Inc. (“MERS”), acting as the nominee for TB&W to BAC Home Loans Servicing, LP (“BAC”), MERS transferred and assigned to BAC, “its successors, transferees, and assigns forever, all right, title and interest of [MERS] in and to” Plaintiff's mortgage. (Id. ). Sirote & Permutt, P.C., was the vendor for the Assignment. (Id. ).

Bank of America, N.A., thereafter became the successor by merger to BAC, and, utilizing the law firm of McFadden, Lyon & Rouse, L.L.C. (“McFadden”), instituted foreclosure actions in September 2012. (Doc. # 13). Plaintiff sent McFadden letters disputing Bank of America's ownership of the debt and declaring the debt “ and void.” (Id. ). McFadden sent Plaintiff a letter on February 4, 2013, stating that alternatives to foreclosure exist, but otherwise the foreclosure sale is scheduled for March 18, 2013. (Id. ). Plaintiff does not state what occurred next. However, effective August 1, 2013, Bank of America placed Plaintiff's account with Resurgent Mortgage Servicing (“Resurgent”) for mortgage servicing. (Id. ).

On October 30, 2013, Resurgent sent Plaintiff a letter stating that it had not received any payments since it began servicing the loan, and that the loan had been past due since January 1, 2009. (Doc. # 13). Resurgent stated in that letter it had placed a restriction on Plaintiff's account preventing further contact with Plaintiff due to correspondence from her requesting a “cease and desist.” (Id. ). However, Resurgent stated that if it received no further information from Plaintiff within thirty days of the date of the letter's receipt, it “will assume this dispute is resolved.” (Id. ). It does not appear Plaintiff sent any more information to Resurgent during that time period.

Subsequently, effective March 1, 2014, Resurgent became part of Shellpoint Mortgage Servicing (“Defendant” or “Shellpoint”). (Docs. # 13, 15-1). On November 11, 2014, Defendant Elizabeth Loefgren of Sirote & Permutt, on behalf of Shellpoint, sent Plaintiff a foreclosure notice setting forth the total amount owed on the debt but also providing contact information for Plaintiff to discuss alternatives to foreclosure. (Doc. # 13). It appears from Ms. Loefgren's December 12, 2014 letter that she received from Plaintiff a letter on December 8, 2014.³ (Id. ). Ms. Loefgren responded to Plaintiff in a letter dated December 12, 2014, stating that she forwarded Plaintiff's letter to Shellpoint for review and a response. (Id. ).

On December 17, 2014, Plaintiff filed her Complaint in the Circuit Court of Jefferson County, Alabama. (Doc. # 1-2). Defendant removed the case to this court in January 2015. (Doc. # 1). Pursuant to the court's March 19, 2015 Order (Doc # 12), which directed Plaintiff to amend her Complaint to comply with the Federal Rules of Civil Procedure (among other things),⁴ Plaintiff filed an Amended Complaint against Defendants Loefgren and Shellpoint on April 10, 2015.⁵ (Doc. # 13).

Defendant timely responded by filing a Motion To Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)

. (Doc. # 14). In its brief, Defendant argues that Plaintiff's claims are confusing and do not meet pleading standards ordered by this court and required under the Federal Rules of Civil Procedure. (Doc. # 15). Defendant contends the Amended Complaint simply repeats the four causes of action in the original Complaint (the court reads the pleadings as including more claims than that), and advances certain arguments as to why all of Plaintiff's claims “lack merit” and should be dismissed with prejudice. (See id. ). Further, Defendant asserts Plaintiff's claims misconstrue the law or misstate the facts, and thus fail to state a claim for relief, and that some claims are barred by the statute of limitations. (Id. ). Defendant includes as exhibits a Notice of Transfer of Servicing dated February 14, 2015, and the initial Complaint.⁶ (Docs. # 15-1, 15-2).

III. The Amended Complaint

The Amended Complaint is a shotgun pleading. It is jumbled and difficult to follow. Its style is further in violation of the court's directives in its March 19, 2015 Order instructing Plaintiff to amended her pleadings. (Doc. # 12). The court would be entitled to dismiss the Complaint on these grounds alone. Nevertheless, the court will also address the other reasons why Plaintiff's Amended Complaint is due to be dismissed. Construing Plaintiff's Amended Complaint liberally, the court reads it as setting forth four “sections” presenting seven causes of action.⁷ (See Doc. # 13).

Plaintiff alleges in section one that Shellpoint lacks legal capacity to foreclose on a property in Alabama for the following reasons. (Doc. # 13). On November 11, 2014, Ms. Loefgren commenced foreclosure actions (i.e. , preparing, signing, and sending a Notice of Acceleration of a Promissory Note and Mortgage to Plaintiff (the “Notice”)) on Plaintiff's home on behalf of Shellpoint. (Id. ). Plaintiff avers that Shellpoint (1) is neither a resident of, nor licensed to conduct business in Alabama, and (2) has not obtained a non-residential bond prior to or following the sending of the Notice. (Id. ). Thus, Plaintiff contends Shellpoint has no standing to foreclose on Plaintiff's home.

Section two sets forth a claim under the FDCPA related to the Notice.⁸ (Doc. # 13). Plaintiff asserts Defendant has no legal entitlement to Plaintiff's house, and thus violated the FDCPA by purportedly threatening nonjudicial foreclosure and collection of the mortgage debt. (Id. ). Plaintiff also appears to aver that the Notice does not follow FDCPA debt collector notice requirements, and that Defendant did not give Plaintiff an opportunity to dispute the debt. (See id. ). (Note: The allegations appearing in a later section of the Amended Complaint, contending that “in September 2013” Plaintiff disputed the debt and declared it “ and void,” seemingly contradict the FDCPA claim regarding the Notice. (Id. )).

Section three is a single paragraph requesting relief for separate violations of the FDCPA and RESPA. (Doc. # 13). Plaintiff alleges that Shellpoint failed to provide a service transfer notice in violation of RESPA, and, paradoxically, any notices that were given did not comply with the FDCPA. (Id. ). Specifically, Plaintiff avers that, prior to receiving a December 22, 2014 notice of sale, the only communications “or knowledge” she had regarding Shellpoint “was received in a Notice of Force-placed insurance from the Insurance Dept. on June 7/11/2014 [sic],” and a similar one received August 20, 2014. (Id. ). “The notice stated, Shellpoint Mortgage Services was the mortgagee and lienholder on the mortgage in question.” (Id. ). Further, Plaintiff contends that she had received no communications from Shellpoint or Resurgent as required by RESPA or the FDCPA prior to or following August 2014 regarding a merger or name change. (Id. ). In contradiction of certain of her other allegations, Plaintiff notes that “[n]o attempts or efforts were made by Shellpoint related to collection of a debt, either by mail or phone.” (Id. ).

Finally, section four references Alabama state law claims of fraud, malice, and wantonness, and requests punitive damages. (Doc. # 13). As grounds for these claims, Plaintiff asserts she sent to Resurgent in September 2013 a dispute of the mortgage debt, declaring the debt “ and void.” (Id. ). Plaintiff indicates she alleged in the dispute the mortgage and Note were counterfeit because, in summary: (1) the mortgage originator was not licensed to originate mortgages in Alabama, and the origination “lacked lawful consideration;” (2) the mortgage was directly endorsed to the lender and payee TB&W; the Note is “non-negotiable;” (3) TB&W did not assign or transfer the Note; (4) the “payee” did not sign the Note; and (5) the mortgage and the “titile” were not perfected and were void from the time of origin. (Id. ). Accordingly, Plaintiff asserts that Shellpoint and its...