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Lane v. Bayview Loan Servicing LLC

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

December 10, 2018

BERNADINE M. LANE, Plaintiff,
v.
BAYVIEW LOAN SERVICING LLC, et al., Defendants.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Factual and Procedural History

         On 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 ¶ 18).

         Plaintiff 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.).

         Plaintiff 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.).

         After 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).

         On 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[1] 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).

         Plaintiff 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).

         Plaintiff 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).[2]

         II. Standard of Review

         The 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).

         To 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.

         In 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 ...


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