Deutsche Bank National Trust Company v. Boyd et al

Filing 15

MEMORANDUM AND ORDER, Granting 6 MOTION to Dismiss filed by USA and dismisses the complaint without prejudice. Signed by Judge J. Phil Gilbert on 5/27/2011. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEUTSCHE BANK NATIONAL TRUST
)
COMPANY, as Trustee for Argent Securities )
Inc., Asset-Backed Pass-Through Certificates, )
Series 2003-W5,
)
)
Plaintiff,
)
)
vs.
)
)
GARY BOYD, JACQUELINE J. BOYD,
)
UNITED STATES OF AMERICA,
)
UNKNOWN OWNERS, and NON-RECORD )
CLAIMANTS,
)
)
Defendants.
)

Civil No. 11-cv-94-JPG-DGW

MEMORANDUM AND ORDER
This matter comes before the Court on the motion of defendant United States of America
to dismiss this case for lack of the plaintiff’s standing to sue (Doc. 6). Specifically, the United
States argues that in this foreclosure action, the complaint does not allege any facts plausibly
suggesting the plaintiff has any interest in the property upon which foreclosure is sought. The
mortgage and the note attached to the complaint reflect the mortgagee as Argent Mortgage
Company, LLC. The United States argues that nothing in or attached to the complaint suggests
that the plaintiff has any interest in the property in issue.
The plaintiff has responded (Doc. 8) that it is the assignee of the mortgagee reflected in
the mortgage documents. It argues that its complaint complies with the Illinois statutory
foreclosure form set forth in 735 ILCS 5/15-1504, which does not require attachment of an
assignment, and that at paragraph 3(N) of the complaint it states that it is the mortgagee. It also
argues that the complaint complies with liberal federal notice pleading requirements and

adequately alerts the defendants to the nature of its claim. Finally, it argues the defendants have
constructive notice of its assignee status by virtue of the recorded assignment.
Federal Rule of Civil Procedure 12(b)(1) governs challenges to a plaintiff’s standing to
sue. American Fed. of Gov’t Emp., Local 2119 v. Cohen, 171 F.3d 460, 465 (7th Cir. 1999).
Where a defendant makes a facial challenge to the sufficiency of the complaint’s jurisdictional
allegations as a matter of law, as in the case at bar, all well-pleaded factual allegations are
accepted as true and construed in the light most favorable to the plaintiff. Garcia v. Copenhaver,
Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997); United States v. Ritchie, 15 F.3d 592, 598
(6th Cir. 1994); 2 James Wm. Moore et al., Moore’s Federal Practice, § 12.30[4], at 12-38 to
12-39 (3d ed.). Therefore, the Court takes all allegations in the complaint as true and examines
them to see if they allege sufficient facts to support the plaintiff’s standing to sue.
The doctrine of standing is a component of the Constitution’s restriction of federal
courts’ jurisdiction to actual cases or controversies. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992); see U.S. Const. art. III, § 2. Standing includes as an element an injury in fact
suffered by the plaintiff. Id. at 560. Without an injury in fact, a plaintiff lacks standing to sue.
The complaint contains contradictory allegations about who the mortgagee is in this case.
In paragraph 3(D) the plaintiff states that the mortgagee is Argent Mortgage Company, LLC, but
in paragraph 3(N) the plaintiff states that it is the mortgagee. No attachments clarify these
apparently conflicting statements. In light of these unexplained and apparently conflicting
statements, the Court finds the complaint does not sufficiently allege the plaintiff’s injury in fact
establishing its standing to sue. Accordingly, the Court GRANTS the United States’ motion to
dismiss (Doc. 6) and DISMISSES the complaint without prejudice.

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The Court FURTHER ORDERS that the plaintiff shall have up to and including June
10, 2011, to file an amended complaint alleging facts sufficient to show it is the mortgagee. The
Court notes that the plaintiff need not attach a copy of the relevant assignment or assignments to
the amended complaint; allegations showing the plaintiff’s injury in fact is all that is required at
the pleading stage. Whether the plaintiff can actually establish its right to bring this action as
assignee of Argent Mortgage Company, LLC, is a matter to be addressed at summary judgment
or at trial. Should the plaintiff fail to amend its complaint on or before June 10, 2011, the Court
will construe its failure as an intent not to prosecute this action and may dismiss this action on
the merits pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute.
IT IS SO ORDERED.
DATED: May 27, 2011
s/ J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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