Lee v. Standard Mortgage Corporation et al
Filing
19
ORDER AND REASONS denying in party and denying without prejudice in part 17 Motion to Dismiss for Lack of Jurisdiction, Motion for Judgment on the Pleadings. Signed by Judge Kurt D. Engelhardt on 2/6/2014. (mmm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JESSIE MAE LEE ESTATE, ET AL
CIVIL ACTION
VERSUS
NO. 13-3851
STANDARD MORTGAGE CORP., ET AL
SECTION “N” (2)
ORDER AND REASONS
Considering Omni Bank’s Motion to Dismiss under Rule 12(b)(1) and Judgment on the
Pleadings under Rule 12(c) (Rec. Doc. 17);
IT IS ORDERED that the motion is hereby DENIED IN PART and DENIED
WITHOUT PREJUDICE IN PART..
Plaintiff brought the instant action pro se against defendants Omni Bank and Standard
Mortgage Corp., seeking to enjoin foreclosure proceedings commenced against her in state court
and seeking damages under various theories and statutes. In the instant motion, Omni Bank
seeks dismissal of the plaintiff’s claims against it on two grounds: (1) Plaintiff has no standing
to bring a claim against Omni because the foreclosure sale never actually occurred and Omni no
longer holds the note or mortgage in question; and (2) the plaintiff should be estopped from
bringing damage claims because she failed to list the cause of action as an asset in the
bankruptcy proceeding commenced shortly after the instant suit was filed.
Omni’s standing argument is without merit. Standing is ascertained as of the time that
suit was filed. See Carr v. Alta Verde Industries, Inc., 931 F.2d 1055, 1061 (5th Cir. 1991) (“As
with all questions of subject matter jurisdiction except mootness, standing is determined as of the
date of the filing of the complaint ....”); Davis v. Fed. Election Comm’n, 554 U.S. 724, 734
(2008) (“the standing inquiry remains focused on whether the party invoking jurisdiction had the
requisite stake in the outcome when the suit was filed”); see also Baisden v. I'm Ready
Productions, Inc., 693 F.3d 491, 510 n. 19 (5th Cir. 2012), cert. denied, 133 S.Ct. 1585 (2013).
That foreclosure proceedings might have been terminated1 after the instant suit was filed would
have no effect on the plaintiff’s standing.2 Omni also argues that plaintiff lacks standing
because Omni no longer holds a mortgage or note on the subject property (having assigned the
note to Standard years ago) and thus there is no “causal connection” between the foreclosure and
Omni. Assuming without deciding that such a causal connection is required for standing, this
argument ignores several of the causes of action asserted by the plaintiff which, although
somewhat vague, do not appear to relate to the foreclosure. See Rec. Doc. 1 (alleging, e.g., that
neither of the defendants explained the workings of the interest rate or its volatility, that they
1
Omni cites to Exhibit C to support the assertion that the foreclosure was cancelled on
August 15, 2013. See Rec. Doc. 17-2 at 4. Exhibit C to Omni’s memorandum is a jumble of
various documents and pleadings. See Rec. Doc. 17-5. While it is possible that a document
evidencing an end to the foreclosure proceedings might exist somewhere in this in globo
miscellany, the Court cannot find it. This is the reason behind the Court’s rules prohibiting in
globo exhibits and requiring pinpoint citations to multi-page exhibits. See Rec. Doc. 16 at 3-4
(“Exhibits shall not be submitted in globo....Citations to...documents or materials with three or
more pages must include some sort of pinpoint citation.”).
2
Such a termination, under certain circumstances, might be a cause for mootness.
However, Omni does not mention or brief the issue of mootness. Moreover, not all of plaintiff’s
causes of action appear to be confined to the foreclosure.
2
charged improper fees for placing the loan as “sub-prime” and improperly retained funds
belonging to the plaintiff). Thus, to the extent the motion is based on lack of standing, it is
denied.
Omni’s second argument is that the plaintiff should be judicially estopped from
recovering damages because she failed to disclose her claims herein as assets in her bankruptcy
filing. This claim may well have merit. However, it has no bearing on the Court’s jurisdiction
or whether the plaintiff has stated in her complaint a plausible claim for recovery. Rather, it is
an affirmative defense3 which does not appear on the face of the complaint. Thus, it has no place
in a motion brought under Rules 12(b)(1) and 12(c). See, e.g., EPCO Carbon Dioxide Products,
Inc. v. JP Morgan Chase Bank, NA, 467 F.3d 466, 470 (5th Cir. 2006) (although dismissal for
failure to state a claim “may be appropriate based on a successful affirmative defense, that
defense must appear on the face of the complaint”). Accordingly, the motion will be denied in
this respect as well. However, this denial shall be without prejudice to Omni’s right to reassert
the argument via an appropriate procedural vehicle.
Finally, the Court cautions the plaintiff that she is responsible for familiarizing herself
with the rules of this Court. A copy of the Local Civil Rules can be found on the Court’s
website at http://www.laed.uscourts.gov/LocalRules/LocalRules.htm. In particular, the plaintiff
is reminded that any party opposing a motion must file and serve on opposing counsel a written
opposition to the motion no later than eight days before the noticed submission date. See LR 7.5.
3
See, e.g., Love v. Tyson Foods, Inc., 677 F.3d 258, 267 (5th Cir. 2012) (“Judicial
estoppel is an affirmative defense.”).
3
If a party requires additional time to prepare a written opposition, the party must file a written
request prior to the deadline. In the future, if the plaintiff (or any party) fails to submit a timely
written opposition to a motion, the Court will treat the motion as unopposed.
New Orleans, Louisiana, this 6th day of February, 2014.
____________________________________
KURT D. ENGELHARDT
UNITED STATES DISTRICT JUDGE
4
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