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Ellis v. Bank of America NA

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

September 24, 2019

STEVEN C. ELLIS, et al., Plaintiffs,
v.
BANK OF AMERICA NA, et al., Defendants.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE

         This case is before the court on the Motions to Dismiss filed by Defendants Mortgage Electronic Registration Systems, Inc. (“MERS”) (Doc. # 21), Federal National Mortgage Association (“Fannie Mae”) (Doc. # 22), and Bank of America NA (“Bank of America”) (Doc. # 23) (collectively, “Defendants”). The Motions to Dismiss have been fully briefed (Docs. # 31-34) and are ripe for decision. After careful review, and for the reasons explained below, the court concludes that Defendants’ Motions to Dismiss are due to be granted in part.

         I. Factual and Procedural History

         This case concerns a mortgage on the residence of Plaintiffs Steven Ellis and Michelle Ellis (“Plaintiffs”). Plaintiffs claim that Defendants violated the terms of the mortgage agreement -- as well as several federal statutes -- while servicing the mortgage and conducting foreclosure proceedings.

         The following is based upon the well-pleaded factual allegations of Plaintiffs’ Complaint. Plaintiffs purchased property located at 2115 Old Cahaba Place, Helena, AL 35080. (Doc. # 16 at 3, ¶ 5). On May 30, 2003, Plaintiffs executed a mortgage loan and promissory note with New South Federal Savings Bank (“NSFSB”), [1] and they also executed a mortgage with MERS as “nominee” for NSFSB. (Doc. # 16 at 3, ¶ 5). According to the amended complaint, the mortgage contract with NSFSB “provides for an escrow account for the taxes and insurance, ” and the mortgagee is required to pay for the insurance and taxes from the amounts contained in the escrow account. (Doc. # 16 at 3, ¶ 5). Additionally, the mortgage contains an acceleration provision and allows for certain remedies in the event of a beach. (Doc. # 16 at 3, ¶ 5). The mortgage also “provides that Lender shall give notice to the borrower prior to acceleration following borrower’s breach of any covenant or agreement in this Security Instrument.” (Doc. # 16 at 3, ¶ 5).

         Currently, Plaintiffs’ loan is owned by Fannie Mae. (Doc. # 16 at 4, ¶ 8). Bank of America served as Plaintiffs’ loan servicer for Plaintiffs from 2008 to 2013. (Doc. # 16 at 6, ¶ 12). Ditech[2]replaced Bank of America as the loan servicer from 2013 until June 23, 2017, when New Residential Mortgage became the loan servicer and continues to occupy that position. (Doc. # 16 at 4, ¶ 8). Plaintiffs contend that the assignments and transfers of the note and mortgage are “defective, void, or otherwise unenforceable.” (Doc. # 16 at 5, ¶ 9).

         Plaintiffs also assert that Defendants Bank of America and Fannie Mae, as well as Ditech[3]and New Residential Mortgage, [4] “failed and refused to apply [Plaintiffs’] monthly payments properly, [failed to] accept the proper payments, . . . inflated the amount due, . . . improperly charged fees and expenses not authorized by the mortgage contract, ” and failed to send proper monthly statements to them. (Doc. # 16 at 3, 7). Plaintiffs claim that they are current on their mortgage payments, not in default on the loan, and not under any threat of foreclosure. (Doc. # 16 at 3, ¶ 6). They state that this case “was filed to address mortgage servicing related issues.” (Doc. # 16 at 4-5, ¶ 6).

         Plaintiffs’ Amended Complaint advances the following claims against Defendants Bank of America, Ditech, Fannie Mae, and New Residential Mortgage: Negligence, Wantonness, Unjust Enrichment, and Breach of Contract. (Doc. # 16). Plaintiffs also assert claims against Ditech and New Residential Mortgage for Violations of the Truth in Lending Act (“TILA”), the Real Estate Settlement Procedures Act (“RESPA”), and the Telephone Consumer Protection Act (“TCPA”). (Doc. # 16). Finally, Plaintiffs assert a claim against New Residential Mortgage for declaratory relief. (Doc. # 16 at 43).

         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). 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 Cir. 2016).

         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 Fed.Appx. 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.

         III. Analysis

         Defendants Fannie Mae, Bank of America, and MERS seek dismissal of Plaintiffs’ claims, arguing that none of Plaintiffs’ claims present a plausible cause of action. (Docs. # 21, 22, 23). The court addresses each claim below, in turn, and does so on a defendant-specific basis.

         A. MERS

         In their Response to Defendant MERS’ Motion to Dismiss, Plaintiffs acknowledge that they are not pursuing any claims against Defendant MERS and therefore do not oppose the granting of its motion to dismiss. (Doc. # 33). Consequently, Defendant MERS’ Motion to Dismiss (Doc. # 21) is due to be granted.

         B. Bank of America and Fannie Mae

         i. Plaintiffs’ Shotgun Pleading

         Before addressing the actual substantive claims in Plaintiffs’ Amended Complaint, it is necessary to first address the shotgun nature of the amended pleading. In their motions to dismiss, Bank of America and Fannie Mae first argue that under Federal Rules of Civil Procedure 8 and 12(b)(6), Plaintiffs’ Amended Complaint should be dismissed because it is a “shotgun pleading.”[5](Doc. # 23 at 2). This court agrees.

         A shotgun pleading is characterized by:

(1) multiple counts that each adopt the allegations of all preceding counts; (2) conclusory, vague, and immaterial facts that do not clearly connect to a particular cause of action; (3) failing to separate each cause of action or claim for relief into distinct counts; or (4) combing multiple claims against multiple defendants without specifying which defendant is responsible for which act.

McDonough v. City of Homestead, 771 Fed.Appx. 952, 955 (11th Cir. 2019); see Jackson v. Bankof America, N.A., 898 F.3d 1348, 1356 (11th Cir. 2018). The Eleventh Circuit has “little tolerance for shotgun pleadings”[6] and has held that “in a case in which a party, plaintiff or defendant, files a shotgun pleading, the district court ‘should strike the [pleading] and instruct counsel to replead the case-if counsel [can] in good faith make the representations required by Fed.R.Civ.P. 11(b).’” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1294 (11th Cir. 2018); Jackson, 898 F.3d at 1357. Implicit in this “notion [is] that if the plaintiff fails to comply with the court’s order-by filing a repleader with the same deficiency-the court should strike his pleading or, depending on the circumstances, dismiss [the] case and consider the imposition of monetary sanctions.” Jackson, 898 F.3d at 1357; Shabanets, 878 F.3d at 1295 (“A district court has the ‘inherent authority to control its docket and ensure the prompt resolution of lawsuits, ’ which includes the ability to dismiss a complaint on shotgun pleading ...


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