Woodby v. Nationstar Mortgage LLC et al

Filing 19

ORDER granting 6 Motion to Dismiss for Failure to State a Claim; granting 14 Motion to Dismiss for Failure to State a Claim. Closing Case. Signed by Judge Darrin P. Gayles (hs01) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 15-24101-CIV-GAYLES/TURNOFF
JOHN STEVEN WOODBY,
Plaintiff,
v.
COUNTRYWIDE HOME LOANS, INC.,
et al.,
Defendants.
/
ORDER OF DISMISSAL
THIS CAUSE comes before the Court upon Defendants’ Motion to Dismiss [ECF No. 6]
and Defendant Countrywide Home Loans, Inc.’s Motion to Dismiss Plaintiff’s Complaint [ECF No.
14]. The Court has considered the parties’ written submissions and applicable law. For the reasons
that follow, the Court grants the motions to dismiss.
BACKGROUND
On June 29, 2005, Plaintiff executed a Note and Mortgage on a property in favor of
Countrywide Home Loans, Inc. (“Countrywide”) [ECF No. 1-3, exhibits B and C]. Countrywide
later transferred the Note to U.S. Bank, N.A. (“U.S. Bank”).
On September 21, 2015, Plaintiff, appearing pro se, filed this action in the Eleventh Judicial
Circuit in and for Miami-Dade County against Defendants Countrywide, Nationstar Mortgage LLC
(“Nationstar”), U.S. Bank, and Mortgage Electronic Registration Systems, Inc. (“MERS”).
Plaintiff’s claims all revolve around his contention that Countrywide was required to release
Plaintiff’s mortgage when it transferred the loan to U.S. Bank and that, as a result of the transfer, the
mortgage was stripped of the note, the chain of title was broken, and the mortgage is no longer
enforceable. With these allegations as his predicate, Plaintiff sets forth claims for (1) breach of

contract, (2) misrepresentation, (3) quiet title, (4) “[n]one of the Defendants have legal ownership of
the Woodby note,” (5) violation of Fla. Stat. § 673.5011(1)(B), (6) violation of 15 U.S.C. §
1641(G)(1)(D), and (7) declaratory judgment. On November 2, 2015, Defendants MERS, U.S.
Bank, and Nationstar removed the action to this Court. All defendants have now moved to dismiss
for failure to state a claim.
LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955
(2007)). Although this pleading standard “does not require ‘detailed factual allegations,’ . . . it
demands more than unadorned, the defendant –unlawfully-harmed-me accusations.” Id. (alteration
added) (quoting Twombly, 550 U.S. at 555).
Pleadings must contain “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted). Indeed,
“only a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556
U.S. at 679 (citing Twombly, 550 U.S. at 556). To meet this “plausibility standard,” a plaintiff must
“plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at 678 (alteration added) (citing Twombly, 550 U.S. at 556).
Although the Court must liberally construe pro se pleadings, pro se litigants must still comply with
procedural rules. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). When reviewing a
motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and
take the factual allegations therein as true. See Brooks v. Blue Cross & Blue Shield of Fla. Inc., 116
F.3d 1364, 1369 (11th Cir. 1997).

ANALYSIS
Plaintiff’s claims all stem from his allegation that Countrywide was required to release his
mortgage when it transferred the loan to U.S. Bank. Plaintiff’s argument is contrary to wellestablished law. “The transfer of a mortgage on the secondary market does not discharge a
mortgagor’s obligation under a mortgage and note even if the original lender was paid.” Howell v.
PHH Mortgage Corp. et al., No. 15-cv-883-Orl-TBS, 2015 WL 5829673 at *3 (M.D.Fla. Oct. 1,
2015) (quoting Altier v. Fed. Nat’l Mortg. Ass’n, No. 1:13-CV-164-MW/GRJ, 2013 WL 6388521, at
*3 (N.D. Fla. Dec. 6, 2013)). As a result, each of Plaintiff’s claims fail.
Plaintiff’s claims are also subject to dismissal for a myriad of other reasons. Plaintiff’s claim
for misrepresentation fails because he does not plead with any particularity the time, place, and
manner of any misrepresentations. See Brooks v. Blue Cross and Blue Shield of Fla., Inc., 116 F.3d
1364, 1371 (11th Cir. 1997). Plaintiff’s claim to quiet title fails because there is no cloud on title.
The Note and Mortgage are enforceable, notwithstanding the transfer. Accordingly, there is no cloud
on title as a matter of law. See Kaan v. Wells Fargo Bank, N.A., 981 F. Supp. 2d 1271, 1273 (S.D.
Fla. 2013). Plaintiff’s claim for a violation of Fla. Stat. § 673.5011(1)(B) fails because Plaintiff
specifically waived his right to presentment when he signed the note. See [ECF No. 1-3 at pg. 22, ¶
10] (“I and any other person who has obligations under this Note waive the rights of Presentment and
Notice of Dishonor.”). Finally, Plaintiff’s claim under 15 U.S.C. § 1641(g) must be dismissed as
Plaintiff fails to allege any facts regarding the sale, transfer, or assignment of his loan. Indeed,
Plaintiff merely recites the elements of a § 1641(g) claim without any detail or support. See Farson
v. Carrington Mortg. Service, LLC, No. 13-cv-2289-T-33TGW, 2013 WL 5705565 at * 1 (M.D. Fla.
Oct. 18, 2013) (dismissing TILA claim under § 1641(g) where plaintiff “merely reproduce[d] the
statutory requirements of section 1641(g)).

The Court finds that leave to amend is not appropriate. Plaintiff bases all of his claims on
Countrywide’s failure to release his mortgage following transfer of the loan. This is a legally
insufficient claim that cannot be cured through more artful pleading. See Howell, 2015 WL 5829673
at *4 (dismissing plaintiff’s action with prejudice where plaintiff could not cure deficiencies through
an amendment to the complaint).
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED AND ADJUDGED that Defendants’ Motion to Dismiss [ECF No. 6] and
Defendant Countrywide Home Loans, Inc.’s Motion to Dismiss [ECF No. 14] are GRANTED.
Plaintiff’s Complaint is DISMISSED with prejudice. It is further
ORDERED AND ADJUDGED that this action shall be CLOSED for administrative
purposes, and all pending motions are DENIED as moot.
DONE AND ORDERED in Chambers at Miami, Florida, this 24th day of May, 2016.

________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE