Norbert Kraus, et al v. CitiMortgage, Inc., et al

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Diana E. Murphy and Lavenski R. Smith (UNPUBLISHED) [4043564] [12-2364]

United States Court of Appeals
For the Eighth Circuit
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No. 12-2364
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Norbert A. Kraus; Claire J. Fox-Krause; William G. Bedard;
John Murphy; Janet Murphy; Ted J. Theis; and Shannon K. Theis
lllllllllllllllllllll Plaintiffs - Appellants
v.
CitiMortgage, Inc.; Mortgage Electronic Registration Systems, Inc.;
MERSCORP, Inc.; Usset, Weingarden, and Liebo, P.L.L.P.
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: May 13, 2013
Filed: June 10, 2013
[Unpublished]
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Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.
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PER CURIAM.
Appellants are seven homeowners (the Homeowners) who filed suit against
CitiMortgage, Inc.; Mortgage Electronic Registration Systems, Inc.; and
MERSCORP, Inc. (the Lenders/Servicers) for unlawfully foreclosing or attempting

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to foreclose on their home mortgages. The Homeowners also filed suit against Usset,
Weingarden, and Liebo, P.L.L.P. (the Law Firm), which they claim assisted with
some of the foreclosures. The district court1 dismissed the Homeowners’ complaint
for failure to state a claim on which relief can be granted and denied leave to amend.
We affirm.
The Homeowners first challenge the district court’s subject matter jurisdiction,
contending that diversity of citizenship was lacking because the Law Firm was not
fraudulently joined. We have recently rejected identical arguments contesting the
assertion of fraudulent joinder, concluding that the claims alleged had no reasonable
basis in law and fact under Minnesota law. See Dunbar v. Wells Fargo Bank, N.A.,
709 F.3d 1254, 1256 (8th Cir. 2013); Karnatcheva v. JPMorgan Chase Bank, N.A.,
704 F.3d 545, 546 (8th Cir. 2013); Murphy v. Aurora Loan Servs., LLC, 699 F.3d
1027, 1031-32 (8th Cir. 2012). Because the claims asserted against the Law Firm in
this case similarly lack a reasonable basis in law and fact, we conclude that there was
diversity jurisdiction under 28 U.S.C. § 1332(a) and that the district court did not err
in dismissing those claims.
We next address the claims against the Lenders/Servicers. Although the
Homeowners asserted twelve claims against the Lenders/Servicers, they have
abandoned on appeal all but four—quiet title, slander of title, conversion, and breach
of fiduciary duty. We affirm the dismissal of the quiet title claim on the basis of our
recent dismissal of a virtually identical claim in Jerde v. JPMorgan Chase Bank, N.A.,
502 F. App’x 616, 617 (8th Cir. 2013) (per curiam). See also Dunbar, 709 F.3d at
1257 (affirming the dismissal of a similar quiet title claim that relied in part on the
same seven grounds asserted in this case). We affirm the dismissal of the slander of
title claim as well, because like the slander of title claim rejected in Dunbar, the

1

The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
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Homeowners in this case “have failed to plead factual content that ‘permit[s] the court
to infer more than the mere possibility of misconduct.’” Dunbar, 709 F.3d at 1258
(alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
We likewise affirm the district court’s dismissal of the Homeowners’
conversion and breach of fiduciary duty claims, because each claim relies upon the
“show-me-the-note” theory rejected by the Minnesota Supreme Court in Jackson v.
Mortgage Electronic Registration Systems, Inc., 770 N.W.2d 487 (Minn. 2009). The
conversion claim is premised on the allegation that the Lenders/Servicers “were not
entitled to enforce the Original Notes and were not entitled to receive payments on
the notes from the Plaintiffs.” Compl. ¶ 76. As we concluded in Murphy, this claim
is nothing more than a variation of a show-me-the-note claim. See Murphy, 699 F.3d
at 1031. We conclude that the breach of fiduciary duty claim suffers from the same
defect, in that the only non-conclusory fact alleged in support thereof is that the
Lenders/Servicers failed to disclose “information regarding the entity that held the
promissory notes and could enforce the mortgages securing Plaintiff’s [sic] property.”
Compl. ¶ 92. Because these claims are merely show-me-the-note claims in different
dress, we affirm the district court’s dismissal of both claims.
The Homeowners’ also appeal from the district court’s denial of their oral
motion to amend the complaint, arguing that the district court failed to rule on the
motion and that justice requires that they be granted leave to amend. The district
court’s order states: “Having reviewed Plaintiffs’ proposed Amended Complaint, the
Court concludes that Plaintiffs cannot allege a set of facts that would survive a
motion to dismiss. Accordingly, the Court denies Plaintiffs’ request to amend[.]” D.
Ct. Order of May 4, 2012, at 8-9 n.3. Because the district court clearly addressed the
Homeowners’ request for leave to amend, their first argument is without merit. To
the extent the Homeowners’ contend that they should have been granted leave to
amend because justice so requires, they have failed to demonstrate that the district
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court erred by concluding that the proposed amendment would be futile.
Accordingly, we affirm the district court’s denial of leave to amend.
The judgment is affirmed.
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