United States District Court, N.D. Alabama, Southern Division
VIRGINIA EMERSON HOPKINS, UNITED STATES DISTRICT JUDGE
the Court is Defendant NOVAD Management Consulting's
(“NOVAD”) Motion To Dismiss (the
“Motion”) Plaintiffs' Amended Complaint.
(Doc. 31). Plaintiffs Jay Kelley and Gail Kelley
(collectively the “Kelleys”) responded to the
Motion. (Doc. 35). NOVAD replied. (Doc. 36). This Motion is
ripe for review.
Motion To Dismiss stage, the Court accepts everything in the
Complaint as true for purposes of this opinion only. The
Court will provide a brief summary of the basic facts alleged
in the Amended Complaint as they relate to the Motion To
Kelleys are Alabama residents who entered into a reverse
mortgage. (Doc. 28 at 1, ¶2 and 4, ¶4). On May 8,
2016, NOVAD became the service company for this mortgage.
(See Id. at 4-5, ¶8). “On October 22,
2016, [the Kelleys] received a letter dated October 17,
2016[, ] from [NOVAD] reiterating the five circumstances
under which a reverse mortgage becomes due and
payable.” (Id. at 5, ¶9). They letter
then stated that “[o]ne of the circumstances stated
above has occurred and placed this loan in a due and payable
status which requires the debt to be repaid. The total amount
due and payable as of 11/16/2016 is $287, 685.15.”
(Id. at 5, ¶10 and 16) (emphasis omitted).
However, none of those enumerated circumstances occurred.
(Id. at 6, ¶12)., 
The Kelleys bring one count in their Amended Complaint:
Plaintiffs submit that the evidence submitted herein clearly
shows that Defendants' wrongful contention that "One
of the above circumstances has occurred", is arbitrary
and capricious, is without supporting evidence, has no basis
in fact, is clearly an intentional act of deceit and
deception, designed to defraud Plaintiffs, and many others,
out of hundreds of thousands, if not millions of dollars.
(Doc. 28 at 9).
12(b)(6) motion attacks the legal sufficiency of the
complaint. See Fed. R. Civ. P. 12(b)(6) (“[A]
party may assert the following defenses by motion: (6)
failure to state a claim upon which relief can be
granted[.]”). The Federal Rules of Civil Procedure
require only that the complaint provide “‘a short
and plain statement of the claim' that will give the
defendant fair notice of what the plaintiff's claim is
and the grounds upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80
(1957) (footnote omitted) (quoting Fed.R.Civ.P. 8(a)(2)),
abrogated by Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 556, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007);
see also Fed. R. Civ. P. 8(a) (setting forth general
pleading requirements for a complaint including providing
“a short and plain statement of the claim showing that
the pleader is entitled to relief”).
plaintiff must provide the grounds of his entitlement to
relief, Rule 8 does not mandate the inclusion of
“detailed factual allegations” within a
complaint. Twombly, 550 U.S. at 555, 127 S.Ct. at
1964 (quoting Conley, 355 U.S. at 47, 78 S.Ct. at
103). However, at the same time, “it demands more than
an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
“[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550
U.S. at 563, 127 S.Ct. at 1969.
court considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679, 129 S.Ct. at
1950. “While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations.” Id. “When there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement to relief.” Id. (emphasis
added). “Under Twombly's construction of
Rule 8 . . . [a plaintiff's] complaint [must]
‘nudge [any] claims' . . . ‘across the line
from conceivable to plausible.' Ibid.”
Iqbal, 556 U.S. at 680, 129 S.Ct. at 1950-51.
is plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. at
1949. “The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility ...