Cheng Lee, et al v. Federal National Mortgage, et al

Filing

PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Bobby E. Shepherd and Jane Kelly (UNPUBLISHED) [4122308] [13-2460]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-2460
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Cheng Lee; Sheng Lee
lllllllllllllllllllll Plaintiffs - Appellants
v.
Federal National Mortgage Association; SunTrust Mortgage, Inc.; and also all
other persons, unknown claiming any right, title, estate, interest, or lien in the real
estate described in the complaint herein
lllllllllllllllllllll Defendants - Appellees

Wilford and Geske, P.A.,
lllllllllllllllllllll Defendant
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: December 4, 2013
Filed: February 10, 2014
[Unpublished]
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Before MURPHY, SHEPHERD, and KELLY, Circuit Judges.
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PER CURIAM.

Appellate Case: 13-2460

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Date Filed: 02/10/2014 Entry ID: 4122308

In January 2008, appellants Sheng Lee and Cheng Lee refinanced their home
in Ramsey County, Minnesota, through a loan from SunTrust Mortgage, Inc.
(“SunTrust”) evidenced by a promissory note signed by the Lees and secured by a
mortgage to Mortgage Electronic Registration System, Inc. (“MERS”) covering the
property and recorded in the county records. By late 2009, the Lees had fallen behind
in their loan payments. According to Ramsey County records, on November 20,
2009, MERS assigned the mortgage to SunTrust. SunTrust executed a Notice of
Pendency and Power of Attorney to Foreclose the Mortgage, appointing Wilford,
Geske & Cook, P.A. (“Wilford”) as attorney-in-fact with power to foreclose. This
notice was recorded in Ramsey County on November 24, 2009.1
Foreclosure was not completed as a result of the 2009 default because the Lees
and SunTrust entered into a Loan Modification Agreement, which allowed the Lees
to come current on amounts then past due on their loan. However, under the modified
agreement, the Lees again defaulted on the loan. MERS once more assigned the
mortgage to SunTrust in a recorded assignment on February 1, 2012. SunTrust
executed another Notice of Pendency and Power of Attorney to Foreclose the
Mortgage, appointing Wilford as attorney-in-fact with power to foreclose. This
notice was recorded on April 6, 2012. A Sheriff’s Certificate of Sale and Foreclosure
Record was recorded on May 29, 2012, reflecting non-judicial foreclosure and sale
of the property to SunTrust on May 25, 2012. SunTrust assigned the Sheriff’s
Certificate of Sale to the Federal National Mortgage Association (“FNMA”) on July
3, 2012.
The Lees brought this action against FNMA, SunTrust, and Wilford
challenging the non-judicial foreclosure sale of their home and seeking to quiet the
title to the property as well as damages, contending that (1) the foreclosure sale was

1

It is not disputed that the first assignments were filed prior to the Lees entering
into a loan modification.
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Date Filed: 02/10/2014 Entry ID: 4122308

invalid due to an unrecorded pre-foreclosure assignment of mortgage from SunTrust
to FNMA, citing Minn. Stat. § 580.02 (stating requirements that must be met before
foreclosure) and Hathorn v. Butler, 75 N.W. 743, 744 (Minn. 1898) (holding that any
assignments of mortgage-security instruments must be recorded before the
commencement of a foreclosure proceeding) and (2) the officers who executed the
assignments of real estate mortgage and power of attorney to foreclose the mortgage
were not legally authorized to do so. The district court2 granted the appellees’ motion
to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), concluding that the
Lees failed to plead specific facts stating a claim. The Lees appeal from this
dismissal, and we affirm.
We review de novo a district court’s grant of a motion to dismiss for failure to
state a claim, accepting the factual allegations of the complaint as true and drawing
all reasonable inferences in favor of the plaintiff. Blankenship v. USA Truck, Inc.,
601 F.3d 852, 853 (8th Cir. 2010). Federal Rule of Civil Procedure 8 requires that
a complaint present a “short and plain statement of the claim showing that the pleader
is entitled to relief.” In order to survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Accordingly, at the
pleading stage a plaintiff must show that success on the merits is “more than a sheer
possibility.” Id.; see also Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co.,
559 U.S. 393, 417 (2010) (Stevens, J., concurring) (“It is a long-recognized principle
that federal courts sitting in diversity ‘apply state substantive law and federal
procedural law.’” (quoting Hanna v. Plumer, 380 U.S. 460, 465 (1965)).

2

The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
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On appeal, the Lees contend that in order to bring a quiet title action in
Minnesota, the only facts which must be shown are possession by the plaintiff and an
adverse claim by the defendant. We have previously rejected this precise claim.
Karnatcheva v. JPMorgan Chase Bank, N.A., 704 F.3d 545, 548 (8th Cir. 2013).
Further, a careful examination of the Lees’ complaint reveals that their claims of an
unrecorded pre-foreclosure assignment of mortgage to FNMA and lack of authority
to execute the relevant instruments are based solely upon “information and belief.”
This conclusory allegation is an example of the type of speculation as to the invalidity
of the adverse claimants’ title which we have held does not satisfy the requirements
of Rule 8. Id. (holding a quiet title complaint is subject to dismissal where the
“pleadings, on their face, have not provided anything to support [the plaintiffs’] claim
that the defendants’ adverse claims are invalid, other than labels and conclusions,
based on speculation that transfers affecting payees and assignments of the notes were
invalid”).3
The judgment of the district court is affirmed.
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3

We agree with the district court that the “Fannie Mae Single Family/2009
Selling Guide” obtained from the internet does not support the claim that the adverse
claim by FNMA is invalid.
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Date Filed: 02/10/2014 Entry ID: 4122308