Spence v. Bank of America, N.A. et al

Filing 11

ORDER granting 9 Defendants' Motion to Dismiss. Plaintiff may file an amended complaint on or before February 26, 2013. Signed by Judge Virginia M. Hernandez Covington on 2/19/2013. (CH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHN W. SPENCE,
Plaintiff,
v.

Case No. 8:12-cv-2794-T-33TGW

BANK OF AMERICA, N.A.
and FANNIE MAE REMIC TRUST
SERIES 2008-47 TRUST,
Defendants.
_______________________________/
ORDER
This cause comes before the Court in consideration of
Defendants’ Motion to Dismiss (Doc. # 9), filed on January
28, 2013.

Plaintiff filed a response in opposition to the

Motion (Doc. # 10) on February 11, 2013.

For the reasons

that follow, the Court grants the Motion.
I.

Background
In the spring of 2008, Plaintiff John Spence obtained

a loan of $255,937.00 from Defendant Bank of America, N.A.
and executed a promissory note to the Bank for that amount,
secured by a mortgage on certain real property.
2

at

5,

25).

Spence

now

alleges

that,

(Doc. # 1due

to

an

ineffective “transfer of ownership and security interest”
in the note and mortgage to Defendant “Fannie Mae Remic

Trust Series 2008-47 Trust,” neither the Bank nor the Trust
has

“any

claim

of

subject property.

title

or

security

interest”

in

the

(Doc. # 1 at ¶¶ 2, 3).

Accordingly, Spence filed this action on December 11,
2012,

asserting

causes

of

action

including

quiet

title

(Count I), declaratory relief under 28 U.S.C. § 2201 (Count
II), and fraud (Count III).
2013,

Defendants

Rules

12(b)(6)

Procedure.
II.

filed

and

a

8(a)

Id. at ¶ 1.

Motion
of

to

the

On January 28,

Dismiss

Federal

premised

Rules

of

on

Civil

(Doc. # 9).

Legal Standard
A complaint must contain a short and plain statement

of

the

claim

relief.

showing

that

the

pleader

Fed. R. Civ. P. 8(a)(2).

dismiss,

a

trial

court

is

entitled

to

In reviewing a motion to

accepts

as

true

all

factual

allegations in the complaint and construes the facts in the
light

most

favorable

to

the

plaintiff.

Jackson

v.

Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
However, courts are not “bound to accept as true a legal
conclusion couched as a factual allegation.”
Allain, 478 U.S. 265, 286 (1986).

2

Papasan v.

In Bell Atlantic Corp. v. Twombly, the Supreme Court
articulated

the

standard

by

which

claims

should

be

evaluated on a motion to dismiss:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough
to raise a right to relief above the speculative
level.
550 U.S. 544, 555 (2007) (internal citations omitted).
In

accordance

Procedure
accepted

8(a)
as

with

calls

true,

to

Twombly,
“for

sufficient

‘state

plausible on its face.’”

Federal

a

claim

to

Rule
factual
relief

for

relief

must

Civil

matter,
that

is

Ashcroft v. Iqbal, 556 U.S. 662,

663 (2009) (quoting Twombly, 550 U.S. at 570).
claim

of

include

“factual

A plausible

content

[that]

allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Id.

The Court notes that the present Motion to Dismiss has
not been converted into a motion for summary judgment in
accordance

with

Federal

Rule

of

Civil

Procedure

12(c)

because the Court has not considered matters outside the
pleadings.

“Rule 7(a) defines ‘pleadings’ to include both

the complaint and the answer, and Rule 10(c) provides that
3

‘[a] copy of any written instrument which is an exhibit to
a pleading is a part thereof for all purposes.’” Horsley v.
Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002) (quoting Fed.
R. Civ. P. 7(a) and 10(c)). Thus, the Court may consider
the

various

converting

exhibits
the

attached

Motion

to

to

the

Dismiss

Complaint

into

one

for

without
summary

judgment.
III. Discussion
Spence’s

Complaint

explains

that

“[t]his

Court

has

original jurisdiction over the claims in this action based
on 28 U.S.C. §§ 1331, 1343, 2201, 2202, 15 U.S.C. § 1692,
12 U.S.C. § 2605, and 42 U.S.C. § 1983.”
9).

(Doc. # 1 at ¶

However, not all of these statutes -- particularly 28

U.S.C. § 1343 and 42 U.S.C. § 1983, which apply to civil
rights violations -- appear to be relevant to the instant
action.

Indeed, Spence, who is represented by counsel,

does not attempt to state a civil rights violation of any
sort at any subsequent point in the Complaint.
In fact, despite his contention that 28 U.S.C. § 1331
applies to this case, Spence has neglected to state a cause
of

action

arising

federal statute.

under

the

U.S.

Constitution

or

any

Although Count II of the Complaint seeks

declaratory relief under 28 U.S.C. § 2201, that statute
4

alone does not confer jurisdiction upon a federal court
absent some federal question or diversity of citizenship.
See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667,
671 (1950) (“The operation of the Declaratory Judgment Act
is

procedural

only.

Congress

enlarged

the

range

of

remedies available in the federal courts but did not extend
their

jurisdiction.”)

(internal

quotations

and

citations

omitted).
Spence

has

attempted

to

allege

jurisdiction is appropriate in this case.
11).

that

diversity

(Doc. # 1 at ¶

However, “[c]itizenship, not residence, is the key

fact that must be alleged in the complaint to establish
diversity for a natural person.”

Taylor v. Appleton, 30

F.3d 1365, 1367 (11th Cir. 1994) (finding no jurisdiction
on diversity grounds where the plaintiff did “not allege
the citizenship of the natural defendants or the principal
place of business for the corporate defendants”); see also
Molinos Valle Del Cibao v. Lama, 633 F.3d 1330, 1342 n.12
(11th Cir. 2011) (“Ordinarily, the complaint must allege
the

citizenship,

defendants.”).

not

residence,

of

the

natural

Spence refers to himself as “an individual

residing in the City of Sarasota.”

5

(Doc. # 1 at ¶ 13).

Because

Spence

has

neglected

to

allege

his

citizenship,

diversity has not been properly established.
In
Court

addition

notes

to

that

contradictory

the

the

and

defects

Complaint

nonsensical

already

mentioned,

contains

factual

the

seemingly

self-

allegations.

For

instance, in the Complaint, Spence claims that “Bank of
America, N.A. is now out of business and is no longer an
operating company” (a claim characterized by Defendants as
“patently absurd” (Doc. # 9 at 8)), yet Spence also claims
that he “has been receiving mortgage statements from Bank
of

America,

N.A.”

dissolution.
Defendants’
oversight
stated

hardly

to

Dismiss,

reviewing

while

his

Defendant

business.”

despite

(Doc. # 1 at ¶¶ 24, 25).
Motion

that

apparently

Bank

of

(Doc. # 10 at ¶ 3).

clarifies

his

illogical

Spence

complaint
America,

its

alleged

In response to
“admits
.

.

N.A.

to

the

.

that

it

is

out

of

However, Spence’s response
Complaint;

the

response

refers, repeatedly, to events involving the Bank’s transfer
of

Spence’s

note

and

mortgage

that

allegedly

occurred

during 2000 and 2006 –- long before the March 29, 2008,
date

that

Spence

original loan.

himself

alleges

the

Bank

issued

the

(Doc. # 10 at ¶¶ 7, 8, 12, 17, 18, 19, 23).

6

Adding to the confusion, the Court notes that Counts I
and II of the Complaint appear to be predicated on Spence’s
subsequently-corrected statement that Bank of America, N.A.
is “out of business.”

(Doc. # 1 at ¶¶ 38, 44).

Although

Spence describes his previous assertion as an “error of the
scrivener and a mere oversight of the Plaintiff,” Spence
has not clarified to what extent the erroneous inclusion of
this

statement

impacts

Counts I and II.

the

causes

of

action

alleged

in

(Doc. # 10 at ¶ 3).

Furthermore, the Complaint is replete with conclusory
allegations such as “[Defendant] Trust never received the
legal right or ownership of Plaintiff’s promissory note”
and

“Bank

of

America,

N.A.

is

receive any mortgage payments.”
These

statements

further

not

legally

entitled

to

(Doc. # 1 at ¶¶ 47, 49).

obfuscate

Spence’s

claims

and

undermine the purpose of Rules 8 and 10 of the Federal
Rules of Civil Procedure, which “require the pleader to
present his claims discretely and succinctly, so that his
adversary

can

discern

responsive pleading.”

what

he

is

claiming

and

frame

a

Perez v. Indymac FSB, No. 6:12-cv-

1146-Orl-28TBS, 2012 U.S. Dist. LEXIS 158403, at *10 (M.D.
Fla. Nov. 5, 2012).

7

Additionally, in Count III, Spence fails to specify
any

sort

of

time

frame

during

which

the

alleged

fraud

occurred, other than “after the origination of Plaintiff’s
loan [on March 29, 2008].”

(Doc. # 1 at ¶ 47).

Because

fraud claims are subject to Federal Rule of Civil Procedure
9(b)’s

heightened

pleading

requirements,

Count

III

of

Spence’s Complaint is required to include
(1) precisely what statements were made in what
documents
or
oral
representations
or
what
omissions were made, and (2) the time and place
of each such statement and the person responsible
for making (or, in the case of omissions, not
making) same, and (3) the content of such
statements and the manner in which they misled
the plaintiff, and (4) what the defendants
obtained as a consequence of the fraud.
Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1237 (11th Cir.
2008) (internal quotations omitted).

Count III falls short

of Rule 9(b)’s requirements.
For

the

Defendants’

reasons
Motion

to

explained

above,

Dismiss.

the

Spence’s

Court

grants

Complaint

is

dismissed without prejudice, and the Court grants Spence
leave to amend the Complaint to state a claim, if possible.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:

8

Defendants’ Motion to Dismiss (Doc. # 9) is GRANTED.
Plaintiff

may

file

an

amended

complaint

on

or

before

February 26, 2013.
DONE and ORDERED in Chambers in Tampa, Florida, this
19th day of February, 2013.

Copies: All Counsel of Record

9