Muathe et al v. Bank of America NA et al

Filing 21

MEMORANDUM AND ORDER granting 5 M&T Bank's Motion to Dismiss; granting 8 Bank of America's Motion to Dismiss; and denying 10 plaintiffs' Motion to Remand to State Court. Signed by Chief Judge J. Thomas Marten on 5/14/14. Mailed to pro se parties Paul M. Muathe and Donald M. Muathe by regular mail. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PAUL M. MUATHE and
DONALD M. MUATHE,
Plaintiffs,
v.

Case No. 14-2147-JTM

GOVERNMENT NATIONAL
MORTGAGE ASSOCIATION,
et al.,
Defendants.
MEMORANDUM AND ORDER
Acting pro se, plaintiffs Paul and Donald Muathe originally filed a petition in
Johnson County District Court on February 21, 2014, seeking a quiet title to real estate
property in Shawnee, Kansas. On March 28, 2014, the Government National Mortgage
Association (GNMA) removed the case to the U.S. District Court for the District of
Kansas. The plaintiffs filed a Motion to Remand to State Court (Dkt. 10) on April 24, to
which all named defendants have responded. Defendants M&T Bank Corporation and
Bank of America, N.A. have each filed a separate motion to dismiss, to which the
plaintiffs have failed to timely respond.1 The court is prepared to rule on the motions.
I. Factual Background
The plaintiffs seek a quiet title to real estate property located at 7518 Anderson
Street, Shawnee, Kansas 66227. In their petition, they state that Paul Muathe executed a
note with defendant Bank of America on July 15, 2009, which was secured by a
1See

Dkts. 5 & 8.

mortgage on this property. The plaintiffs claim that they are ready and willing to
perform the contract, but they are concerned that they may be “making payments for
the benefit of the wrong party due to possible cloud on the title . . . .”
The plaintiffs worry about “the possibility of an unperfected chain of title
transfers” in any securitization of the mortgage by Bank of America. Specifically, the
plaintiffs are apprehensive about the potential failure to provide “delivery receipts at
each and every step of the securitization process.” As a basis for their concerns of a
cloud on the title, the plaintiffs cite their research about Bank of America’s “much
publicized mortgage documentation fraud and illegal securitization dealings . . . .”
Noting that no assignments have been recorded on the subject matter property
mortgage loan documents, the plaintiffs fear that a cloud may exist on the property title,
and they refuse to continue making payments to “unknown, hidden, wrong or
undisclosed holders in due course with no proper recorded legal standing and no
perfected chain of title transfer.”
As a result of these fears, the plaintiffs demand that the defendants produce the
“original wet ink signed mortgage and promissory note,” securitization documentation,
and “each and every intervening agreement between any and all parties . . . .” If these
documents are not produced, the plaintiffs seek a quiet title to the property.
II. Motion to Remand
The plaintiffs filed a motion asking the court to remand this case to state court.
They argue that this court has no federal question jurisdiction, as the claims are based
solely on state law and seek state law remedies. They also argue that the court lacks
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diversity jurisdiction because the claims fail the $75,000 damages threshold. Citing 28
U.S.C. § 1446(b)(2)(A), the plaintiffs also argue that GNMA’s removal was improper
because it failed to secure consent to removal from all other defendants. The plaintiffs’
arguments rest on flawed assumptions, as the court explains below.
A. Jurisdictional Concerns
Although diversity or federal question jurisdiction is generally required in all
cases, this case presents an exception to the general rule. The United States and its
agencies may remove any action brought under 28 U.S.C. § 2410. 28 U.S.C. § 1444
(2012). Although the pro se plaintiffs do not identify it as such, this case is brought
against the GNMA, a United States agency, under 28 U.S.C. § 2410. Section 2410 is the
only section authorizing a civil action against the United States or its agencies in state
court to quiet title to real property. The plaintiffs identify their quiet title action as
stemming from KAN. STAT. ANN. § 60-1002. However, a case brought against the GNMA
based solely on Kansas law would fail, as the federal agency would be entitled to
sovereign immunity. To clear that hurdle, the court must construe the action as one
brought under § 2410, which waives sovereign immunity in quiet title cases. As a § 2410
action brought against a United States agency, the agency can remove the action to
federal court under § 1444. The GNMA properly identified § 1444 as the basis for
removal here.
Section 1444 gives the United States a substantive right of removal that is
independent of jurisdictional limitations. See Hood v. United States, 256 F.2d 522, 525 (9th
Cir. 1958). The judicial power of the federal courts extends to any case in which the
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United States is a party. U.S. CONST. art. III, § 2, cl. 2. Additionally, other statutes give
the United States the right to remove cases without regard to the amount in
controversy. See 28 U.S.C. §§ 1442, 1442a & 1443. Section 1444 falls within this family of
statutes. As a result, there is no defect in this court’s subject matter jurisdiction over the
case.
B. Unanimous Consent from Other Defendants
The plaintiffs also argue that the GNMA must obtain consent from the other
defendants before removing this case. The plaintiffs rely on 28 U.S.C. § 1446(b)(2)(A),
which states: “When a civil action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join in or consent to the
removal of the action.”
As the court established above, this civil action was not “removed solely under
section 1441(1).” The GNMA removed the case by relying on § 1444, which does not
require consent by other defendants. Section 1444 states that “[a]ny action brought
under section 2410 of this title against the United States in any State court may be
removed by the United States to the district court of the United States for the district and
division in which the action is pending.” 28 U.S.C. § 1444 (emphasis added). “Congress
has used the passive term ‘may be removed’ together with identification of particular
defendants to permit those defendants to remove certain types of cases without
obtaining consent of other defendants.” Alban v. Exxon Mobil Corp., Nos. MJG-06-3098—
MJG-06-3176, 2006 WL 6161862, at *2 (D. Md. Dec. 27, 2006) (emphasis added). The

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language of § 1444 does not require the United States or its agencies to obtain consent of
the other defendants before removing the case to federal court.
The plaintiffs’ motion to remand relies on general rules that are not applicable in
this case. Section 1444 allows the GNMA to remove the case to federal court without
consent from the other defendants and without meeting the hurdles of diversity or
federal question jurisdiction. As a result, the court denies the plaintiffs’ motion to
remand.
III. Motions to Dismiss
M&T Bank and Bank of America filed separate motions to dismiss that rely on
the same substantive arguments, namely that the Muathes fail to state a claim and that
plaintiff Donald Muathe lacks standing for his claim. Accordingly, the court’s analysis
for the two motions is combined here. M&T Bank filed its Motion to Dismiss (Dkt. 5) on
April 4, 2014, and Bank of America filed its Motion to Dismiss (Dkt. 8) on April 7.2 This
court requires a response to a motion to dismiss to be filed within twenty-one days of
service of the motion. D. Kan. Local Rule 6.1(d)(2). The plaintiffs have not filed a
response to either motion, and the deadline for doing so was weeks ago. The court
holds that the plaintiffs’ claims should be dismissed for failure to state a claim, so it
does not need to address Donald Muathe’s standing.

2Bank

of America originally filed its motion in Johnson County District Court on March 18, 2014, but the
date of its renewal in federal court is used here for purposes of the response deadline.

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A. Legal Standard: Rule 12(b)(6) Failure to State a Claim
Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” The
complaint must give the defendant adequate notice of what the plaintiff’s claim is and
the grounds of that claim. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).
“In reviewing a motion to dismiss, this court must look for plausibility in the
complaint . . . . Under this standard, a complaint must include ‘enough facts to state a
claim to relief that is plausible on its face.’ “ Corder v. Lewis Palmer Sch. Dist. No. 38, 566
F.3d 1219, 1223–24 (10th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (clarifying and affirming
Twombly’s probability standard). The “mere metaphysical possibility that some plaintiff
could prove some set of facts in support of the pleaded claims is insufficient; the
complaint must give the court reason to believe that this plaintiff has a reasonable
likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original). “The issue in
resolving a motion such as this is ‘not whether [the] plaintiff will ultimately prevail, but
whether the claimant is entitled to offer evidence to support the claims.’ “ Bean v.
Norman, No. 008-2422, 2010 WL 420057, at *2, (D. Kan. Jan. 29, 2010) (quoting
Swierkiewicz, 534 U.S. at 511).

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The court must construe pro se pleadings liberally, but “it need accept as true
plaintiff’s well-pleaded contentions, not his conclusory allegations.” Loggins v. Cline, 568
F. Supp. 2d 1265, 1268 (D. Kan. 2008). It is not “the proper function of the district court
to assume the role of advocate for the pro se litigant,” and the court should not
“construct arguments or theories for the plaintiff” or “supply additional factual
allegations to round out a plaintiff’s complaint.” Shelby v. Mercy Regional Hospital, 2009
WL 1067309, at *2 (D. Kan. April 21, 2009). Moreover, pro se litigants are subject to and
must follow procedural rules governing all litigants. Green v. Dorrell, 969 F.2d 915, 917
(10th Cir. 2002). Even a pro se plaintiff bears the burden of alleging “enough facts to
state a claim to relief that is plausible on its face.” Bafford v. Pokorski, 2008 WL 2783132,
at *3 (D. Kan. July 17, 2008).
B. Analysis
The defendants argue that the plaintiffs can only maintain an action for quiet title
if one of the defendants tries to enforce a lien or if a lien on the property ceases to exist.
They point out that the complaint alleges neither of these scenarios, so it fails to state a
claim under Kansas law. The court agrees.
Kansas allows the owner of a property to maintain a quiet title action “[w]hen a
lien on property has ceased to exist, or when an action to enforce a lien is barred by a
statute of limitation or otherwise . . . .” KAN. STAT. ANN. § 60-1002(b). In their complaint,
the plaintiffs do not assert either of these conditions. They do not allege that any
defendant—or any entity, for that matter—has attempted to enforce a lien. The
plaintiffs allege that Paul Muathe executed a valid note and mortgage in favor of Bank
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of America, giving it a lien on the property. The plaintiffs do not allege that Bank of
America has assigned this lien, nor do they allege that it has attempted to enforce the
lien. The plaintiffs also do not allege that the lien on the property ceased to exist at any
time. Rather, the plaintiffs express only a concern that there might be a “possible cloud
on the title,” citing “the involvement of Mortgage Electronic Registration Systems Inc.’s.
[sic]” The plaintiffs do not specifically explain why this company’s involvement piqued
their interests.
The plaintiffs explain that their concerns about a clouded title also rest on
“research based of [sic] defendant(s) [sic] much publicized mortgage documentation
fraud and illegal securitization dealings . . . .” They assert that “financial institutions
have recently been known to fill [sic] false ‘lost mortgage/note affidavits’ as a way to
conceal the unknown, unraveled and shady behind the scene securitization dealings.”
Finally, the plaintiffs state that there are no recorded assignments on the subject matter
property mortgage loan documents.
Presumably, the plaintiffs are worried about their mortgage loan being
securitized, a process in which the bank sells its interest in a mortgage and the
mortgage gets bundled with others and sold as part of a security. Essentially, the
plaintiffs argue that because they have read about Bank of America’s prior bad
securitization behavior, they are concerned that their mortgage might end up in the
same situation with an incomplete chain of title transfer. This worry is probably natural
for anyone who has lived through the wake of the recent economic turmoil in this
country, in which securitized mortgages played a prominent role. However, the
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plaintiffs do not even allege that Bank of America has securitized their mortgage. After
stating that Paul Muathe entered into an agreement with Bank of America, the plaintiffs
do not allege any action by any of the defendants. Their assertion that there are no
recorded assignments on the mortgage is unhelpful because this fact is as consistent
with the conclusion that no assignments have been made as it is with the conclusion
that the title is now suspect. The plaintiffs’ fear, without any facts in support, cannot
establish a claim. Simply put, the plaintiffs’ concerns are inadequate to state a plausible
legal claim for relief.
The plaintiffs have failed to state a claim for quiet title under KAN. STAT. ANN.
§ 60-1002. They do not allege that a lien has ceased to exist, nor do they allege that
anyone has attempted to enforce a lien on the property. The court grants the motions to
dismiss the complaint for failure to state a claim against M&T Bank and Bank of
America.
IT IS THEREFORE ORDERED this 14th day of May, 2014, that the plaintiffs’
Motion to Remand to State Court (Dkt. 10) is denied.
IT IS ALSO ORDERED that M&T Bank’s Motion to Dismiss (Dkt. 5) and Bank of
America’s Motion to Dismiss (Dkt. 8) are granted.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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