Pullar et al v. Home Loan Center, Inc. et al

Filing 25

ORDER granting 3 motion to dismiss. Plaintiffs' Verified Complaint to Quiet Title (Doc. 2) is DISMISSED WITH PREJUDICE.. Signed by Judge Roy B. Dalton, Jr. on 6/3/2013. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

TIMOTHY R. PULLAR and JENNIFER
A. PULLAR,
Plaintiffs,
v.

Case No. 6:13-cv-396-Orl-37GJK

HOME LOAN CENTER, INC. d/b/a
LENDING TREE LOANS; US BANK
NATIONAL ASSOCIATION, as Trustee
for RFMSI 2006-S3; and ANY AND ALL
UNKNOWN PARTIES,
Defendants.

ORDER
This cause is before the Court on the following:
1.

Plaintiffs’ Verified Complaint to Quiet Title (Doc. 2), filed March 11, 2013;

2.

U.S. Bank National Association’s Motion to Dismiss Complaint to Quiet
Title (Doc. 3), filed March 11, 2013;

3.

Plaintiffss’ [sic] Objection and Opposition to Defendant’s, U.S. Bank
National Association, as Trustee for RFMSI 2006-S3, Motion to Dismiss
(Doc. 17), filed May 7, 2013; and

4.

Defendant’s Reply to Plaintiff’s [sic] Response to Defendant’s Motion to
Dismiss (Doc. 22), filed May 30, 2013.

Upon consideration, the Court hereby grants Defendant’s motion to dismiss.

BACKGROUND1
Plaintiffs own and reside in a house in Seminole County. (Doc. 2, ¶¶ 1–3.) In
2006, they mortgaged the property to Defendant Lending Tree Loans in exchange for a
$560,000 note secured by the property. (Doc. 2-1, pp. 5–17.) The mortgage
incorporated the note by reference. (Id. at 5; see also Doc. 3-1, p. 4.) The mortgage was
recorded. (Doc. 2, ¶ 4.)
Plaintiffs dispute that they received the $560,000 loan. (Id. ¶ 5.) They allege that
they repeatedly sent letters demanding that Lending Tree prove that it lent money to
Plaintiffs, to which Lending Tree did not respond. (Id. ¶¶ 5–6.)
In 2012, Lending Tree assigned the mortgage to Defendant U.S. Bank. (Doc. 2-3,
p. 2.) U.S. Bank has apparently initiated foreclosure on the property. (See Doc. 10.)
Plaintiffs, proceeding pro se, then filed this suit in state court to quiet their title to
the property. (Doc. 2.) The case was removed to this Court pursuant to diversity
jurisdiction. (Doc. 1.) U.S. Bank now moves to dismiss the Complaint. (Doc. 3.) Plaintiffs
responded. (Doc. 17.) U.S. Bank replied. (Doc. 22.) This matter is now ripe for the
Court’s adjudication.
STANDARDS
Federal Rule of Civil Procedure 8(a)(2) provides that a claimant must plead “a
short and plain statement of the claim.” On a motion to dismiss a complaint, the Court
limits its consideration to “the well-pleaded factual allegations.” La Grasta v. First Union
Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004). The factual allegations in the complaint
1

The following factual allegations, drawn from the Complaint, are accepted as
true for the purpose of considering the instant motion and are construed in the light
most favorable to Plaintiffs. See Castro v. Sec’y of Homeland Sec., 472 F.3d 1334,
1336 (11th Cir. 2006).

2

must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). In making this plausibility determination, the Court must accept
the factual allegations as true; however, this “tenet . . . is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A pleading that offers mere
“labels and conclusions” is therefore insufficient. Twombly, 550 U.S. at 555.
DISCUSSION
To state a claim for quiet title, Plaintiffs must show that: (1) they have title to the
subject property; and (2) there is a cloud on the title. Stark v. Frayer, 67 So. 2d 237, 239
(Fla. 1953). They must also demonstrate that the cloud—that is, Defendants’ claim to
the title—is invalid. Id. Plaintiffs have not done so here. All they have demonstrated is
that there was a valid mortgage (Doc. 2-1), incorporating by reference a valid note
(Doc. 3-1), which was later validly assigned to U.S. Bank (Doc. 2-3).
While difficult to comprehend,2 the thrust of Plaintiffs’ arguments in opposition to
the motion to dismiss appears to be that: (1) the mortgage and note are invalid because
Defendants did not respond to Plaintiffs’ demand letters (Doc. 17, ¶¶ 24–25); and
(2) the assignment is invalid because securitization separated the mortgage from the
note (id. ¶¶ 40–53). Neither of these arguments is well-taken.
The allegation that Defendants did not respond to Plaintiffs’ letters demanding
that Defendants prove their claims to the property, even accepted as true, does nothing
to demonstrate that the mortgage and note are invalid. The mortgage, which Plaintiffs
attached to their Complaint, is signed by both Plaintiffs. (Doc. 2-1, p. 16.) The mortgage
incorporates by reference the note. (Id. at 5.) The note is also signed by both Plaintiffs.
2

Any arguments raised by Plaintiffs that are not addressed in this Order were
patently frivolous or unsupported.

3

(Doc. 3-1, p. 6.) The mortgage is recorded. (Doc. 2, ¶ 4.) Plaintiffs cite to no law
demonstrating why the failure to respond to Plaintiffs’ demand letters would invalidate a
signed, recorded mortgage. Plaintiffs’ argument is therefore both unsupported and
insupportable. See Barrios v. Regions Bank, No. 5:13-cv-29, Doc. 31, pp. 3–4 (M.D.
Fla. Mar. 29, 2013) (Conway, C.J.) (calling a similar argument “frivolous”).
Plaintiffs’ argument that securitization separated the mortgage and the note,
rendering them unenforceable, is similarly unavailing. Plaintiffs allege that the note was
transferred into the trust for which U.S. Bank is trustee for the purpose of
“securitization,” thereby making the “note holder disappear.” (Doc. 17, ¶¶ 40–53.)
Nevertheless, a transfer of the note carries with it the transfer of the mortgage. Johns v.
Gillian, 184 So. 140, 143 (Fla. 1938) (“If the note . . . be transferred without any formal
assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as
an incident to the debt, unless there be some plain and clear agreement to the contrary,
if that be the intention of the parties.”); Taylor v. Bayview Loan Servicing, LLC, 74 So.
3d 1115, 1118 (Fla. 2d DCA 2011) (“[The assignee] also became the equitable owner of
the mortgage when [the assignor] endorsed the note to [the assignee] because the
ownership of the mortgage followed the note.”). Further, the mortgage was formally
assigned to U.S. Bank in August 2012. (Doc. 2-3, p. 2.) “Any form of assignment of a
mortgage, which transfers the real and beneficial interest in the securities
unconditionally to the assignee, will entitle him to maintain an action for foreclosure.”
Johns, 184 So. at 143. Therefore, whether and when securitization occurred is
irrelevant. U.S. Bank now holds both the note and the mortgage and thus a valid claim
to title. See Rhodes v. JPMorgan Chase Bank, N.A., No. 12-80368-CIV, 2012 WL
5411062, at *4 (S.D. Fla. Nov. 6, 2012) (noting that securitization did not deprive the

4

defendant loan servicer of its interest in the note and ability to foreclose).
As Plaintiffs have not sufficiently established that Defendants’ claims to title are
invalid, they have not adequately stated a quiet title claim. Thus, the motion to dismiss
is due to be granted. Furthermore, the exhibits attached and central to the Complaint
plainly contradict Plaintiffs’ conclusory legal allegations and demonstrate that Plaintiffs
are not plausibly entitled to relief on the theories set forth in the Complaint. Therefore,
this dismissal is with prejudice. See Thompson-Warren v. SunTrust Mortg., Inc.,
No. 6:13-cv-149, Doc. 17, p. 5 (M.D. Fla. Apr. 2, 2013) (Sharp, J.) (dismissing similar
pro se quiet title case with prejudice); Roder v. RH Funding Co., No. 6:12-cv-1076-Orl36KRS, 2012 WL 6799690, at *4–5 (M.D. Fla. Dec. 10, 2012) (Spaulding, M.J.)
(recommending dismissal with prejudice on similar facts).
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

U.S. Bank National Association’s Motion to Dismiss Complaint to Quiet
Title (Doc. 3) is GRANTED.

2.

Plaintiffs’ Verified Complaint to Quiet Title (Doc. 2) is DISMISSED WITH
PREJUDICE.

3.

The Clerk is DIRECTED to close this case.

DONE AND ORDERED in Chambers in Orlando, Florida, on June 3, 2013.

5

Copies:
Counsel of Record
Pro Se Parties

6