Barrows et al v. Bank of America, NA

Filing 30

ORDER: Defendant Bank of America's Motion to Dismiss Amended Complaint 26 is GRANTED. This case is dismissed and the Clerk is directed to close this case. Signed by Judge Virginia M. Hernandez Covington on 12/23/2014. (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 Amended Complaint filed
on December 5, 2014. (Doc. # 26). 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, which this Court construes to request
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 a Motion to Dismiss the Complaint (Doc. # 13),
arguing that: (1) the Barrowses fail to state a claim to quiet
title,

(2)

the

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.).
On November 4, 2014, this Court granted Bank of America’s
Motion and provided the Barrowses leave to file an Amended
Complaint on or before November 21, 2014. (Doc. # 16). On
November

20,

2014,

the

Barrowses

filed

their

Amended

Complaint. (Doc. # 24). Thereafter, on December 5, 2014, Bank
of America filed the present Motion pursuant to Federal Rule
of Civil Procedure 12(b)(6), which is ripe for this Court’s
review.
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

2

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
raise a right to relief above the speculative
level.
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 Amended Complaint this

Court construes the Barrowses allegations to be premised on
declaratory judgment and quiet title. (See Doc. # 24). The
Court

has

subject

matter

jurisdiction

3

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 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, 67 So. 2d at
239).
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. # 26 at 3). Specifically, Bank of America

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).

4

states that “Even though the plaintiffs removed the phrase
‘quiet title’ when they amended their pleadings, the Amended
complaint still requests relief that amounts to quieting
title.” (Id.). Furthermore, Bank of America submits that the
Barrowses continue to contend “that the mortgage is an adverse
interest in the title of their property and that [Bank of
America]

should

be

required

to

prove

their

claim

or

be

estopped from asserting it.” (Id.). This Court agrees.
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. In the Amended Complaint, 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 of $620,000.00 and a current balance
claimed by Defendant is $520,000.000.” (Doc. # 24 at ¶ 5).
Thereafter,

Barrowses

argue

that

Bank

of

America’s

successors sold the mortgage and note to Washington Mutual
Mortgage

Pass

Through

Certificates,

WMALT

Series

2005-4,

“thus converting the note and mortgage to a trust and shares
of stock which are owned by shareholders of the trust.” (Id.

5

at ¶¶ 7, 10). 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 ¶ 11).
The Barrowses center their quiet title claim on Bank of
America continuing to demand payment of the note and “an
actual and present need for a declaration of the validity of
[Bank of America’s] rights in [the Barrowses] property and
assets.” (Id. at ¶¶ 12, 13). Because Bank of America’s actions
do not render the mortgage and assignment invalid 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.
Moreover, to state a claim for declaratory judgment, the
Barrowses must show,
(1) that there is an actual, bona fide, and present
need for the declaration, (2) that the declaration
deals with a present and ascertainable controversy,
(3) that some right or privilege of the complaining
party is dependent upon the facts or the law
applicable to the facts, (4) that there is a person
who has an adverse interest in the subject matter,
(5) that all adverse parties are presently before
the court, and (6) that the party seeks more than
an advisory opinion.
(Doc. # 26 at 5-6); Trianon Condo. Ass’n, Inc. v. QBE Ins.
Corp., 741 F. Supp. 2d 1327, 1331 (S.D. Fla. 2010). Bank of

6

America contends that “if, as here, a plaintiff fails to
allege a valid cause of action regarding the subject matter
of the claim, then no declaratory judgment is warranted or
permitted on that issue.” (Id. at 6); see Knights Armament Co.
v. Optical Sys. Tech., Inc., 568 F. Supp. 2d 1369, 1375 (M.D.
Fla. 2008) (finding that the plaintiff did not plead valid
case or controversy regarding ownership of technology for
night vision devices, and, thus, could not seek declaratory
judgment).
Since this Court has found that the Barrowses have failed
to state a cognizable cause of action for quiet title, it is
apparent that the allegations in the Amended Complaint are
speculative and do not amount to a present and ascertainable
controversy. Therefore, the Barrowses have failed to state a
cause of action for declaratory judgment.
This Court has no obligation to hypothesize federal
claims, even considering the Barrowses pro se status. See
Gibbs v. United States, 865 F. Supp. 2d 1127, 1151 (M.D. Fla.
2012). This Court notes that this is the second time in which
the Barrowses have failed to file a response to Bank of
America’s

Motion

to

Dismiss

to

the

operative

Complaint.

“Courts are not allowed to act as de facto counsel or to
rewrite a deficient pleading.” Butler v. Broward County Cent.

7

Examining

Bd.,

367

Fed.

Appx.

991,

992

(11th

Cir.

2010)(unpublished); GJR Invs., Inc. v. County of Escambia,
132 F.3d 1359, 1369 (11th Cir. 1998). “Moreover, the legal
parameters of a lawsuit cannot be expanded sua sponte by the
district court.” Id.
Upon due consideration of the well-pleaded allegations
of Scott and Judy Barrows’ Amended 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 and dismiss this case.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Bank of America’s Motion to Dismiss Amended
Complaint (Doc. # 26) is GRANTED.

(2)

This case is dismissed and the Clerk is directed to close
this case.
DONE and ORDERED in Chambers, in Tampa, Florida, this

23rd day of December, 2014.

Copies: All Counsel and Parties of Record

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