Peeples v. Ditech Financial LLC et al

Filing 27

MEMORANDUM OPINION AND ORDER DENYING 20 MOTION to Dismiss Plaintiff's Amended Complaint as set out herein. Signed by Judge Virginia Emerson Hopkins on 2/20/2018. (JLC)

FILED
2018 Feb-20 PM 03:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
NICKELS BOWEN PEEPLES,

)
)
Plaintiff,
)
)
v.
) Case No.: 4:17-CV-1311-VEH
)
DITECH FINANCIAL LLC and
)
MORTGAGE ELECTRONIC
)
REGISTRATION SYSTEMS, INC., )
)
Defendants.
)

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION AND RELEVANT BACKGROUND
Before the Court is Defendant Ditcech Financial LLC’s (“Ditech”) Motion To

Dismiss (the “Motion”) Plaintiff Peeples’s Amended Complaint. (Doc. 20). This
action was originally removed to the United States District Court for the Northern
District of Alabama on August 4, 2017. (Doc. 1). Finding that the original Complaint
was a “shotgun” pleading, the Court ordered Peeples to replead. (Doc. 13). He did so
on November 28, 2017. (Doc. 18). The parties have completed their briefing, and the
Motion is ripe for review. (Docs. 20, 25, 26). Peeples’s Amended Complaint states
the relevant factual allegations on a 12(b)(6) Motion To Dismiss. (Doc. 18 at 2-5).

II.

STANDARD
A.

Federal Rule of Civil Procedure 12(b)(6)

A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See FED.
R. CIV. P. 12(b)(6) (“[A] party may assert the following defenses by motion: (6)
failure to state a claim upon which relief can be granted[.]”). The Federal Rules of
Civil Procedure require only that the complaint provide “‘a short and plain statement
of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is
and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99,
103, 2 L. Ed. 2d 80 (1957) (footnote omitted) (quoting FED. R. CIV. P. 8(a)(2)),
abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955,
1965, 167 L. Ed. 2d 929 (2007); see also FED. R. CIV. P. 8(a) (setting forth general
pleading requirements for a complaint including providing “a short and plain
statement of the claim showing that the pleader is entitled to relief”).
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8
does not mandate the inclusion of “detailed factual allegations” within a complaint.
Twombly, 550 U.S. at 555, 127 S. Ct. at 1964 (quoting Conley, 355 U.S. at 47, 78 S.
Ct. at 103). However, at the same time, “it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). “[O]nce a claim has been stated
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adequately, it may be supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550 U.S. at 563, 127 S. Ct. at 1969.
“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950. “While legal
conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Id. “When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id. (emphasis added). “Under Twombly’s construction of
Rule 8 . . . [a plaintiff’s] complaint [must] ‘nudge[] [any] claims’ . . . ‘across the line
from conceivable to plausible.’ Ibid.” Iqbal, 556 U.S. at 680, 129 S. Ct. at 1950-51.
A claim is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at
556, 127 S. Ct. at 1965).
III.

ANALYSIS
In the Motion, Ditech asks the Court to consider the mortgage note,
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assignments, and a letter during the foreclosure proceedings. (Doc. 20 at 2) (citing
Docs. 3-1, 3-2, 3-3, 3-4, 3-5). In support, Ditech cites the general rule for
“incorporation by reference.” (Id.). The rule is that:
[A] document attached to a motion to dismiss may be considered by the
court without converting the motion into one for summary judgment
only if the attached document is: (1) central to the plaintiff's claim; and
(2) undisputed. See Harris v. Ivax Corp., 182 F.3d 799, 802 n. 2 (11th
Cir.1999). “Undisputed” in this context means that the authenticity of
the document is not challenged. See, e.g., Beddall v. State Street Bank
and Trust Co., 137 F.3d 12, 16–17 (1st Cir.1998); GFF Corp. v.
Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th
Cir.1997); Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994).
Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). Black’s Law Dictionary
defines “authenticity” as “[t]he quality, state, or condition of being genuine, so that
the origin or authorship is reliably as claimed.” Authenticity, BLACK’S LAW
DICTIONARY (10th ed. 2014). In his response to the Motion, Peeples states that “[he]
does contest the authenticity of the endorsed note and the assignment.” (Doc. 25 at
2).1
The Defendants’ arguments are premised upon their allegation that the
mortgage at issue is a purchase money mortgage. (Doc. 20 at 1-2). However, their
sole basis for this factual allegation is a reference to all 16 pages of the Mortgage.

1

The Court assumes Peeples is referencing the documents actually attached to the
Motion. All of those documents are public records (except Doc. 3-5 which the Court did not
consider) and the Court takes judicial notice of them.
4

Defendants have not pointed out to the Court any specific language establishing that
the mortgage is a purchase money mortgage.
IV.

CONCLUSION
Based on the Defendants’ failure to establish, in the manner permitted by

Rule 12(b)(6), its assertion that the mortgage is a “purchase money mortgage,” the
Motion fails. Accordingly, the Motion is DENIED.
DONE and ORDERED this the 20th day of February, 2018.

VIRGINIA EMERSON HOPKINS
United States District Judge

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