United States District Court, N.D. Alabama, Jasper Division
MEMORANDUM OF OPINION
Scott Cooler United States District Judge.
Plaintiff Barbara Reese (“Plaintiff” or
“Reese”) filed a Notice of Appeal of Order to
Vacate Emergency Injunction to Stop Eviction and Complaint
for Wrongful Ejectment and Wrongful Foreclosure (doc. 1-3 at
8) on January 4, 2019 in the Circuit Court in Walker Count,
Alabama. On January 28, 2019, Defendant Federal
Home Loan and Mortgage Corporation (“Freddie
Mac”) filed a Motion to Dismiss in state court (doc.
1-3 at 19) contesting the sufficiency Reese's complaint
and service under the Alabama Rules of Civil Procedure.
Defendants removed the case from the Circuit Court of Walker
County, Alabama on January 29, 2019. (Doc. 1.) Freddie Mac
then renewed its Motion to Dismiss based on the Federal Rules
of Civil Procedure. (Doc. 11.) Reese has filed a timely
response to that motion styled as a Motion to Deny Defendants
Motion to Dismiss. (Doc. 12.) The motion is fully briefed and
ripe for review. For the reasons stated below, Freddie
Mac's initial Motion to Dismiss (doc. 1-3 at 19) is due
to be terminated as moot, and Freddie Mac's Motion to
Dismiss (doc. 11) is due to be granted. Reese's Motion to
Deny Defendants Motion to Dismiss (doc. 12) is due to be
2007, Reese executed a mortgage in favor of Gateway Mortgage
Group LLC, for the purchase of 641 Hayfield Loop, Dora,
Alabama (the “Property”). Reese's mortgage
was then assigned to JP Morgan before it was assigned to
Defendant Bayview Loan Servicing, LLC (“Bayview”)
in January 2017. Prior to the reassignment, Reese had
repeatedly asked for mortgage refinancing assistance. Prior
to foreclosure, Reese sent Bayview all the required documents
to complete a loan modification. Bayview did not acknowledge
receipt of such documents. Instead, Bayview foreclosed on the
allegations as to Freddie Mac's role in this process are
unclear from the face of the complaint. The only allegations
made specifically about Freddie Mac are that they promote
homeownership by supporting the reliable supply of affordable
mortgages, purchase mortgages and sell mortgage-backed
securities, and are a public government-sponsored enterprise
with a business address in Virginia.
general, a pleading must include “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). However, in order to
withstand a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), a complaint “must plead enough facts to state
a claim to relief that is plausible on its face.”
Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1347-48
(11th Cir. 2016) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)) (internal quotation
marks omitted). “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). Stated another way, the
factual allegations in the complaint must be sufficient to
“raise a right to relief above the speculative
level.” Edwards v. Prime, Inc., 602 F.3d 1276,
1291 (11th Cir. 2010). A complaint that “succeeds in
identifying facts that are suggestive enough to render [the
necessary elements of a claim] plausible” will survive
a motion to dismiss. Watts v. Fla. Int'l Univ.,
495 F.3d 1289, 1296 (11th Cir. 2007) (quoting
Twombly, 550 U.S. at 556) (internal quotation marks
evaluating the sufficiency of a complaint, this Court first
“identif[ies] pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. This Court
then “assume[s] the veracity” of the
complaint's “well-pleaded factual
allegations” and “determine[s] whether they
plausibly give rise to an entitlement to relief.”
Id. Review of the complaint is “a
context-specific task that requires [this Court] to draw on
its judicial experience and common sense.” Id.
If the pleading “contain[s] enough information
regarding the material elements of a cause of action to
support recovery under some ‘viable legal theory,
'” it satisfies the notice pleading standard.
Am. Fed'n of Labor & Cong. of Indus. Orgs. v.
City of Miami, 637 F.3d 1178, 1186 (11th Cir. 2011)
(quoting Roe v. Aware Woman Ctr. for Choice, Inc.,
253 F.3d 678, 683-84 (11th Cir. 2001)).
wrongful foreclosure action is brought by the mortgagor
against the mortgagee. See e.g., Jackson v. Wells Fargo
Bank, N.A., 90 So.3d 168, 171 (Ala. 2012); Paint
Rock Properties v. Shewmake, 393 So.2d 982, 984 (Ala.
1981). “A mortgagor has a wrongful foreclosure action
whenever a mortgagee uses the power of sale given under a
mortgage for a purpose other than to secure the debt owed by
the mortgagor.” Reeves Cedarhurst Dev. Corp. v.
First Am. Fed. Sav. & Loan Assoc., 607 So.2d 180,
182 (Ala. 1992). “Any improper use of the power for
such purposes as oppressing the debtor, or serving the
purposes of other individuals, will be considered by the
court as a fraud in the exercise of the power.”
Johnson v. Shirley, 539 So.2d 165, 168 (Ala. 1988).
has not alleged that Freddie Mac was the mortgagee for her
loan, that Freddie Mac was a party to her mortgage with
Bayview, or that Freddie Mac was even associated with her
mortgage. Reese's complaint alleges that Bayview, not
Freddie Mac, was the mortgagee of her mortgage. Accordingly,
Reese has failed to state a claim against Freddie Mac for
also brings claims against Freddie Mac for violations of
Regulation X of the Real Estate Settlement Procedures Act
(“RESPA”). Reese specifically alleges violations
of RESPA's so-called Dual Tracking regulation, 12 C.F.R.
§ 1024.41(g). RESPA is a consumer protection statute
that establishes certain actions that must be followed by
entities or persons responsible for servicing federally
related mortgage loans. See e.g., 12 U.S.C. §
2605. RESPA's Dual Tracking regulation provides that
“[i]f a borrower submits a complete loss mitigation
application after a servicer has made the first notice or
filing required by applicable law for any judicial or
non-judicial foreclosure ...