United States District Court, N.D. Alabama, Southern Division
STEVEN C. ELLIS, et al., Plaintiffs,
BANK OF AMERICA NA, et al., Defendants.
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
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.
Factual and Procedural History
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
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”),  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).
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). Ditechreplaced 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).
also assert that Defendants Bank of America and Fannie Mae,
as well as Ditechand New Residential Mortgage,
“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).
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).
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). 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
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 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.
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.
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
Bank of America and Fannie Mae
Plaintiffs’ Shotgun Pleading
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.”(Doc. # 23 at 2).
This court agrees.
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” 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 ...