United States District Court, N.D. Alabama, Southern Division
BERNADINE M. LANE, Plaintiff,
BAYVIEW LOAN SERVICING LLC, et al., Defendants.
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
case is before the court on Defendant Bayview Loan Servicing,
LLC‘s Motion to Dismiss. (Doc. # 9). The Motion has
been fully briefed (Docs. # 10, 12) and is ripe for review.
After careful review, and for the reasons explained below,
the court finds that Defendant‘s Motion to Dismiss
(Doc. # 9) is due to be granted.
Factual and Procedural History
November 28, 2000, Plaintiff Bernadine Lane borrowed $64, 125
from Coats & Co., Inc. to purchase the property at 9704
Williamsburg Drive, Birmingham, Alabama 35215 (hereinafter
the "Property"). (Doc. # 8 at ¶¶ 15-16).
On November 29, 2000, Coats & Co., Inc. transferred the
promissory note to Fleet National Bank. (Id. at
¶ 16). Shortly thereafter on December 4, 2000, the note
was transferred to Mortgage Electronic Registration System,
Inc. (MERS). (Id. at ¶ 17). On April 5, 2013,
the promissory note was again transferred to JP Morgan Chase
Bank (hereinafter "JP Morgan"). (Id. at
alleges that from November 29, 2000 to April 2017, she made
timely loan payments to JP Morgan, until she decided to
completely pay off the remaining balance of her mortgage
debt. (Id. at ¶ 19). Plaintiff claims that on
September 12, 2017 she sent the CEO of JP Morgan "an
instruction letter, documents and the necessary negotiable
instruments in the amount of $27, 734.50 to pay off, offset,
settle and close the mortgage loan with funds from [her]
Treasury Offset Account." (Id. at ¶ 20).
Plaintiff then received several notices from JP Morgan in
September and October of 2017, informing her that Defendant
Bayview Loan Servicing would start servicing her loan on
October 2, 2017. (Id. at ¶ 21). On November 8,
2017, Plaintiff defaulted on her loan and allegedly received
a Notice of Default and Intent to Accelerate. (Id.).
alleges that over the course of about seven months, she sent
Defendant a series of documents which she insists has some
legal effect. First, she sent Defendant a "CONDITIONAL
ACCEPTANCE FOR VALUE (hereinafter "CAFV") for PROOF
OF CLAIM pact along with presentments" on December 1,
2017. (Id. at ¶ 22). According to Plaintiff,
this document expressed her agreement to make any necessary
payments to Defendant, but only if Defendant provided her
with the following:
the necessary proof(s) of their claim as to any FRAUD ON THE
CONTRACT and/or whether the mortgage contract itself may be
an unconscionable contract and/or other controversies that
may exist within the contract and/or FULL DISCLOSURE as to
the mortgage contract (document for discovery) regarding
proof of the actual accounting of what was loaned, bank money
or bank credit, jurisdiction, constitutional matters,
monetary conditions within the State and other various proofs
of claim to support a valid lawful contract.
(Id.). Plaintiff states that the document gave
Defendant thirty days to respond. (Id.).
receiving no response, Plaintiff sent Defendant two
"Notice[s] of Fault and Opportunity to Cure and Contest
Acceptance" in January 2018. (Id. at ¶
23-24). She alleges that due to its failure to respond, it is
Defendant which "officially went into default."
(Id. At ¶ 24). She sent Defendant a third CAFV
in February 2018, along with "the Presentments for
Redemption to Cure Plaintiff/Affiant‘s Default
Payoff." (Id. at ¶ 25). Again, Plaintiff
received no response and insists that Defendant accepted her
presentments. (Id. at ¶ 26).
February 3, 2018, Defendant‘s foreclosure attorney
notified Plaintiff of Defendant‘s intent to foreclose.
(Id.). Plaintiff sent a fourth CAFV to Defendant on
February 8. 2018. (Id.). On February 23, 2018,
Plaintiff sent Defendant "a Fifth Notice of Final
Default, Asservation and Res Judicata, Affidavit of
Certification of Non-Response and Dishonor, a Secured Party
Security Agreement, Security Party Common Law Copyright
Notice, and Legal Notice of Demand." (Id. at
¶ 28). Defendant‘s foreclosure attorney then
informed Plaintiff that the foreclosure sale originally
scheduled for March 5, 2018 was cancelled. (Id.).
After Attorney Jahan Berns of Sirote &
Permutt informed Plaintiff that the foreclosure
sale was rescheduled for August 2018, Plaintiff sent
Defendant another CAFV. (Id. at ¶ 30).
Nevertheless, Defendant commenced foreclosure proceedings as
scheduled on August 17, 2018. (Id. at ¶ 32).
filed a Complaint in the Circuit Court of Jefferson County on
August 21, 2018, and thereafter, the action was removed to
this court on August 23, 2018. (Doc. # 1). Defendant filed a
Motion to Dismiss on August 29, 2018 arguing that
Plaintiff‘s Complaint did not satisfy the applicable
pleading standard. (Doc. # 3). The court denied
Defendant‘s Motion on September 6, 2018, but found that
the Complaint was "utterly incomprehensible" and a
classic example of shotgun pleading. (Doc. # 7).
filed her Amended Complaint on October 5, 2018. She asserts
eight claims against Defendant: (1) Dishonor, Non Response
and Default; (2) Negligence; (3) Misrepresentation and Fraud;
(4) Wrongful Foreclosure; (5) Breach of the Implied Covenant
of Good Faith and Fair Dealing; (6) Unjust Enrichment; (7)
Void or Cancel Trustee‘s Deed Upon Sale; and (8) Quiet
Title and Preliminary and Permanent Injunction. (Doc. # 8 at
19-28). After Defendant filed a Motion to Dismiss the Amended
Complaint (Doc. # 9), Plaintiff filed a document entitled
"Plaintiff‘s Conditional Unopposed Motion for
Dismissal of Complaint for Proof of Claim (Facts) of
Plaintiff‘s Refusal to Pay and Dishonor and Defendant
Timely and Proper Performance, Respond, Honor - not Default
and Dishonor." (Doc. # 10).
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).
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