Barrows et al v. Bank of America, NA

Filing 16

ORDER:Defendant Bank of America's Motion to Dismiss for failure to state a claim 13 is GRANTED. Plaintiffs have until and including November 21, 2014 to file an Amended Complaint. If the Pro Se Plaintiffs fail to file an Amended Complaint by November 21, 2014, the Clerk is directed to close this case. Signed by Judge Virginia M. Hernandez Covington on 11/4/2014. (AKH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SCOTT O. BARROWS and
JUDY L. BARROWS,
Plaintiffs,
v.

Case No. 8:14-cv-2121-T-33TGW

BANK OF AMERICA, NA,
Defendant.
________________________________/
ORDER
This cause is before the Court pursuant to Defendant
Bank of America’s Motion to Dismiss filed on October 15, 2014.
(Doc. # 13). Pro Se Plaintiffs, Scott and Judy Barrows (“the
Barrowses”), did not file a response in opposition to the
Motion. Upon due consideration, and for the reasons stated
below, the Court grants Bank of America’s Motion.
I.

Background
On August 28, 2014, the Barrowses initiated an action

against Bank of America requesting declaratory judgment and
quiet title. (Doc. # 1). Subsequently, on September 26, 2014,
the Barrowses filed a return of service alleging that Bank of
America had been properly served. (Doc. # 8). On October 3,
2014, Bank of America filed a status report with this Court
stating that, although Bank of America was not served in

accordance with the Federal Rules, it was willing to waive
service of process. (Doc. # 11 at 2). Thereafter, on October
15, 2014, Bank of America filed the present Motion (Doc. #
13), arguing that: (1) Barrowses fail to state a claim to
quiet title; (2) Barrowses fail to state a claim for a
declaratory judgment; and (3) the precedent cited by the
Barrowses provides no support for their claims. (Id.).
II.

Legal Standard
On a motion to dismiss, this Court accepts as true all

of the factual allegations in the complaint and construes
them in the light most favorable to the plaintiff. Jackson v.
Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
Further, this Court favors the plaintiff with all reasonable
inferences from the allegations in the complaint.

Stephens

v. Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990) (“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”).
However, the Supreme Court explains that:
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

2

raise a
level.

right

to

relief

above

the

speculative

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted). Further, courts are not “bound to accept
as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
III.

Analysis
From the Court’s review of the Complaint, it appears the

dispute
judgment

between
and

the

quiet

parties
title.

is

The

premised
Court

has

on

declaratory

subject

matter

jurisdiction over this matter pursuant to 28 U.S.C. § 1332; 1
therefore, state substantive law applies. Under Florida law,
in order to state a claim for quiet title, the Barrowses must
establish: “(1) the plaintiff’s valid title; (2) the manner
which the plaintiff obtained the title; (3) the basis upon
which the defendant asserts an interest on the title, and (4)
the invalidity of the defendant’s interest in the property.”
Stark v. Frayer, 67 So. 2d 237, 239 (Fla. 1953). “A claim for
quiet title in Florida ‘must not only show title in the

1

In sufficiently establishing diversity jurisdiction, the
Barrowses have alleged that they are citizens of Florida and
Bank of America has its principal place of business in a state
other than Florida. (Doc. # 1 at ¶¶ 1-3). Furthermore, Scott
and Judy Barrows have adequately alleged that the amount in
controversy in this action exceeds the jurisdictional
threshold of $75,000. (Id. at ¶ 4).

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plaintiff to the lands in controversy, but also that a cloud
exists, before relief can be given against it.’” Lane v. Guar.
Bank, 552 F. App’x 934, 936 (11th Cir. 2014)(quoting Stark v.
Frayer, 67 So. 2d 237, 239 (Fla. 1953)).
It is Bank of America’s position that the Barrowses have
failed to state a claim upon which relief can be granted as
they have failed to set forth sufficient facts to support
their claims. (Doc. # 13). This Court recognizes that Bank of
America’s obligations and defenses to the Barrowses arise
under the note and mortgage to the subject property, which
are not attachments to the Complaint, and Rule 8 of the
Federal Rules of Civil Procedure requires that a complaint
contain only sufficient factual matter, that when accepted as
true, “state[s] a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Accepting

the

Barrowses

allegations

as

true

and

construing them in the light most favorable to the Barrowses,
the Complaint fails to set forth sufficient facts to plausibly
show that Bank of America’s interest in the property was
invalid, and that the underlying mortgage or assignment was
a cloud on the Barrowses title. The Barrowses allege that
they “purchased their property on July 27, 1999 and encumbered
the same with Whitney Bank as the original lender in excess

4

of $620,000.00 and a current balance claimed by Defendant is
$520,000.000.”

(Doc.

#

1

at

¶

4).

Thereafter,

Bank

of

America’s successors sold the mortgage and note to Washington
Mutual Mortgage Pass Through Certificates, WMALT Series 20054, “thus converting the note and mortgage to a trust and
shares of stock which are owned by shareholders of the trust.”
(Id. at ¶¶ 5, 8). The Barrowses contend that Bank of America
is not in possession of the original mortgage and note, and
therefore,

it

is

not

the

party

entitled

to

enforce

the

mortgage and note. (Id. at ¶ 9).
The Barrowses center their quiet title claim on the
failure of Bank of America to respond to their “notarial
presentment” for proof of the validity of the mortgage and
assignment. (Doc. # 1 at ¶ 10). Bank of America’s failure to
respond

to

the

Barrowses

unilateral

demand,

however,

is

legally insufficient to create a cloud on their title. Lane,
552

F.

App’x

at

936.

The

Barrowses

offer

their

own

unsupported, subjective belief that the failure to respond
rendered the mortgage and assignment invalid. (Doc. # 1 at ¶
12). This subjective belief, however, does not rise to the
level of stating a claim that is “plausible on its face.”
Iqbal, 556 U.S. at 678. Because Bank of America’s failure to
respond does not render the mortgage and assignment invalid

5

or create a cloud on the Barrowses title, this Court concludes
that the Barrowses have failed to state a claim upon which
relief can be granted.
Upon due consideration of the well-pleaded allegations
of Scott and Judy Barrows’ Complaint, which the Court must
accept as true at this point in time, the Court determines
that it is appropriate to grant Bank of America’s 12(b)(6)
Motion.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant

Bank

of

America’s

Motion

to

Dismiss

for

failure to state a claim (Doc. # 13) is GRANTED.
(2)

Plaintiffs have until and including November 21, 2014 to
file an Amended Complaint. If the Pro Se Plaintiffs fail
to file an Amended Complaint by November 21, 2014, the
Clerk is directed to close this case.
DONE and ORDERED in Chambers, in Tampa, Florida, this

4th day of November, 2014.

Copies: All Counsel and Parties of Record

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