United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
case is before the court on Defendant Wells Fargo Bank,
N.A.'s Motion to Dismiss. (Doc. # 20). The Motion to
Dismiss has been fully briefed (Docs. # 21, 26, 28-29) and is
under submission. After careful review, and for the reasons
explained below, Defendant's Motion to Dismiss (Doc. #
20) is due to be granted.
Factual and Procedural History
December 2007, Plaintiffs Larry Montgomery, Jr., and Shameka
Montgomery borrowed $231, 880 from RMC Funding Corporation to
purchase the property at 6370 Letson Farm Road, Bessemer,
Alabama 35022 (hereinafter the “Property”). (Doc.
# 18 at 5-11, 22). In a promissory note signed by Plaintiff
Larry Montgomery, the borrowers waived their right to issue
notices of dishonor to the note holder. (Id. at 7).
The promissory note indicates that RMC Funding transferred
the promissory note to Defendant. (See Id. at 8).
secure the note, Plaintiffs granted a mortgage on the
Property to RMC Funding. (Id. at 9, 11). The
mortgage stated that Mortgage Electronic Registration
Systems, Inc. (“MERS”) was the mortgagee and that
MERS held legal title to the security interest conveyed by
the mortgage. (Id.). The mortgage granted MERS the
right to “foreclose and sell the Property.”
(Id. at 11).
allege that they sent Defendant a “Negotiable Debt
Instrument” on October 16, 2015. (Id. at 2).
Defendant responded to Plaintiffs' October 2015
correspondence on October 28, 2015. (Id. at 41). In
its response, Defendant stated that it could not provide any
information to Plaintiffs because their request for
information was too broad. (Id.). In a November 12,
2015 “Notice of Fault in Dishonor, ” Plaintiffs
averred that their October 16, 2015 instrument was a tender
offer to which Defendant was required to respond under
Uniform Commercial Code § 3-306(b). (Id. at
47). They concluded that Defendant had
“dishonored” the October 2015 tender offer
because it did not send an account statement to them.
(Id.). Plaintiffs directed Defendant to send them an
account statement and “an acknowledgment of acceptance
or rejection of the tender offer presented . . . October 16,
2015” within ten days. (Id.). On November 20,
2015, Defendant responded that Plaintiffs' account was
being reviewed and that it would respond by December 4, 2015.
(Id. at 45).
allege that Defendant accepted the terms of the Negotiable
Debt Instrument by not complying with the requests for
information made in that instrument. (Id. at 2, 37)
(stating that Defendant's “failure to sufficiently
respond or timely honor the Presentment, by the terms of the
Presentment, constitutes [Defendant's] acceptance and
approval”). Plaintiffs stated in a February 2016
“Notice of Default in Dishonor Consent to
Judgment” that the acceptance of their offer discharged
all debts, obligations, duties, and liabilities related to
the loan and constituted an agreement to convey title of the
Property to Plaintiffs. (Id. at 37). In February
2016, Plaintiffs purported to revoke their signatures on the
loan documents because they were misled and coerced into
agreeing to the loan. (Id. at 32-33). In March 2016,
Plaintiffs signed a “Rescission of Mortgage”,
which averred that Defendant had agreed to rescind the
mortgage “by tacit agreement due to fraud perpetrated
upon [Plaintiffs].” (Id. at 31). Plaintiffs
filed the “Rescission of Mortgage” with the
Jefferson County Probate Court. (Id.).
commenced foreclosure proceedings for the Property in
December 2016. (Id. at 29). Plaintiffs allege that
the foreclosure proceedings were fraudulent because Defendant
“was not a party” to the mortgage. (Id.
at 3). Plaintiffs also allege that Defendant lacks
“standing” to foreclose the Property because a
mortgage-backed security pool is the actual note holder for
the Property. (Id.).
their Amended Complaint, Plaintiffs first claim that
Defendant committed fraud by instituting foreclosure
proceedings for the Property. (Id.). Second,
Plaintiffs claim that Defendant breached a contract between
the parties. (Id.).
Standard of Review
Federal Rules of Civil Procedure require that a complaint
provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). However, the complaint must include
enough facts “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Pleadings that
contain nothing more than “a formulaic recitation of
the elements of a cause of action” do not meet Rule 8
standards, nor do pleadings suffice that are based merely
upon “labels and conclusions” or “naked
assertion[s]” without supporting factual allegations.
Id. at 555, 557. In deciding a Rule 12(b)(6) motion
to dismiss, courts view the allegations in the complaint in
the light most favorable to the non-moving party. Watts
v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir.
2007). Moreover, the court must liberally construe
Plaintiffs' Amended Complaint because they submitted the
complaint pro se. Erickson v. Pardus, 551
U.S. 89, 94 (2007). Having said that, “[a] district
court can generally consider exhibits attached to a complaint
in ruling on a motion to dismiss, and if the allegations of
the complaint about a particular exhibit conflict with the
contents of the exhibit itself, the exhibit controls.”
Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th
survive a motion to dismiss, a complaint must “state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although “[t]he plausibility standard is not akin to a
‘probability requirement, '” the complaint
must demonstrate “more than a sheer possibility that a
defendant has acted unlawfully.” Id. A
plausible claim for relief requires “enough fact[s] to
raise a reasonable expectation that discovery will reveal
evidence” to support the claim. Twombly, 550
U.S. at 556.
considering a motion to dismiss, a court should “1)
eliminate any allegations in the complaint that are merely
legal conclusions; and 2) where there are well-pleaded
factual allegations, ‘assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.'” Kivisto v. Miller, Canfield,
Paddock & Stone, PLC, 413 F. App'x 136, 138
(11th Cir. 2011) (quoting Am. Dental Ass'n v. Cigna
Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That task
is context specific and, to survive the motion, the
allegations must permit the court based on its
“judicial experience and common sense . . . to infer
more than the mere possibility of misconduct.”
Iqbal, 556 U.S. at 679. If the court determines that
well-pleaded facts, accepted as true, do not state a claim
that is plausible, the claims are due to be dismissed.
Twombly, 550 U.S. at 570.