Bey v. Bank of America et al

Filing 29

ORDER AND REASONS granting 8 Motion to Dismiss for Failure to State a Claim. Plaintiffs Complaint is DISMISSED WITH PREJUDICE in its entirety. Signed by Judge Jay C. Zainey on 7/6/2015. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KHARA AMUN BEY

CIVIL ACTION

VERSUS

NO: 14-2797

BANK OF AMERICA, ET AL.

SECTION: "A" (5)

ORDER AND REASONS
Before the Court is a Motion to Dismiss (Rec. Doc. 8) filed
by defendant Bank of America, N.A. ("BANA").
Amun Bey, opposes the motion.1

Plaintiff, Khara

The motion, set for submission on

March 11, 2015, is before the Court without oral argument. For
the reasons that follow, the motion is GRANTED.
I.

BACKGROUND
Petitioner, proceeding pro se and in forma pauperis, brings

this action to quiet title to property located at 3649 Lake Lynn
Drive, Gretna, Louisiana.

Plaintiff claims that he is entitled

to do so "through [i]ndigenous family lineage, [a]ffidavit, and
corporeal possession."
More specifically, Plaintiff claims that he took corporeal
possession of the property with the intent to possess as owner on
October 13, 2014, as evidenced by his acts of maintenance and

1

The parties dispute whether Plaintiff timely filed his
opposition to BANA's motion. However, as Plaintiff is proceeding
pro se, the Court will consider all briefing for purposes of the
present motion.
1

repair.

He alleges that at the time of taking possession the

property had been abandoned and eviction proceedings had been
instituted against it.
Plaintiff received a letter from Dean Morris, L.L.P. (a law
firm), dated October 30, 2014, informing any "occupants" that the
Federal Home Loan Mortgage Corporation ("Freddie Mac") owns the
property and was instituting eviction proceedings.

Plaintiff

claims that there is no evidence of Freddie Mac's ownership and
that it is a negligent misrepresentation.
Plaintiff also claims that defendant BSM Financial, L.P.,
originally held a mortgage on the property which it then
transferred to BANA, recorded on October 30, 2014.

Plaintiff

alleges that neither of these entities ever owned the property,
thus rendering the transfers fraudulent.

He further alleges that

as corporations they cannot have ownership rights on real
property.
Plaintiff filed this Complaint December 10, 2014, claiming
that these allegedly "fraudulent conveyances constitute a cloud
on [his] title" and seeking a ruling of this Court that any
ownership claims of Defendants are "null and void."
II.

STANDARD OF REVIEW
In the context of a motion to dismiss the Court must accept

all factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff’s favor. Lormand v. US

2

Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (citing Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007); Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974); Lovick v. Ritemoney, Ltd.,
378 F.3d 433, 437 (5th Cir. 2004)). However, the foregoing tenet
is inapplicable to legal conclusions. Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009). Thread-bare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice. Id. (citing Bell Atlantic Corp. v. Twombly, 550, U.S.
544, 555 (2007)).
The central issue in a Rule 12(b)(6) motion to dismiss is
whether, in the light most favorable to the plaintiff, the
complaint states a valid claim for relief. Gentilello v. Rege,
627 F.3d 540, 544 (5th Cir. 2010) (quoting Doe v. MySpace, Inc.,
528 F.3d 413, 418 (5th Cir. 2008)). To avoid dismissal, a
plaintiff must plead sufficient facts to “state a claim for
relief that is plausible on its face.” Id. (quoting Iqbal, 129 S.
Ct. at 1949). “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.” Id. The Court does not accept as true
“conclusory allegations, unwarranted factual inferences, or legal
conclusions.” Id. (quoting Plotkin v. IP Axess, Inc., 407 F.3d
690, 696 (5th Cir. 2005)). Legal conclusions must be supported by
factual allegations. Id. (quoting Iqbal, 129 S. Ct. at 1950).

3

Pro se pleadings must be given the benefit of liberal
construction. Cooper v. Sheriff of Lubbock Cnty., 929 F.2d 1078,
1081 (5th Cir. 1991). On the other hand, pro se litigants are not
exempt from the requirement that they plead sufficient facts to
allege a plausible claim for relief or from the principle that
mere legal conclusions do not suffice to prevent dismissal.
Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir.
2002) (citing Christian Leader. Conf. v. Sup. Ct. of La., 252
F.3d 781, 786 (5th Cir. 2001)).
III. DISCUSSION
a.

Subject Matter Jurisdiction
Federal courts have the responsibility to consider the

question of subject matter jurisdiction sua sponte if it is not
raised by the parties and to dismiss any action if jurisdiction
is lacking.

Giannakos v. M/V Bravo Trader, 762 F.2d 1295, 1297

(5th Cir. 1985) (citing Fed. R. Civ. P. 12(h)(3); In re Kutner,
656 F.2d 1107, 1110 (5th Cir. 1981)); 28 U.S.C.A. § 1447(c) (West
2006).

Subject matter jurisdiction can never be waived nor can

jurisdiction be conferred by consent of the parties.

Id. (citing

C. Wright A. Miller & E. Cooper, Fed. Prac. & Proc. § 3522
(1984)).

It is well-established that the party invoking the

jurisdiction of a federal court has the burden of proving that
the exercise of such jurisdiction is proper.

In re North

American Philips Corp., 1991 WL 40259, at *2 (5th Cir. 1991).
4

Although not raised by the parties, the Court had concern as
to a lack of diversity between Plaintiff and one of the
defendants, Jennifer Honeycutt.
citizen of Louisiana.2

It appears that Plaintiff is a

To that end, the Court ordered

supplemental briefing to address this issue.

(Rec. Doc. 22).

Having reviewed this briefing, the Court now finds that it has
jurisdiction to consider this matter.

Several factors indicate

that Jennifer Honeycutt was domiciled in Texas at the time of
filing, rendering complete diversity between the parties.

The

amount in controversy exceeds the $75,000.00 threshold.
b.

Failure to State a Claim
BANA contends that Plaintiff cannot maintain this quiet

title action for several reasons.

First, BANA notes that

Plaintiff has only alleged possession of the property beginning
in October 2014 and presents no just title concerning the
property.

BANA points out that this falls far short of the bad

faith acquisitive prescription period of thirty years.

BANA also

argues that Plaintiff's arguments concerning ownership by
occupancy of abandoned property applies only to movables.

Next,

BANA argues that the Court may take judicial notice of the prior

2

Plaintiff claims that "his status" is that of an
"Indigenous American National." Courts have previously rejected
such an assertion of citizenship as patently frivolous. See,
e.g., Hampton v. City of Durham, no. 10cv706, 2010 WL 3785538, at
*2-3 (M.D. NC Sept. 22, 2010)(collecting cases). This Court does
the same.
5

mortgages and transfers regarding this property, and that
Plaintiff cannot point to any invalid conveyances concerning the
property.

Finally, BANA argues that any claims of ownership by

Plaintiff on the basis of his "Moorish American National"
heritage are frivolous.
To state a prima facie case in a quiet title action,
Plaintiff must provide the following: 1.) claim of ownership
(i.e., "prima facie proof that the plaintiffs are the owners of
the property"); 2.) existence of clouds; 3.) description of the
property; and 4.) prayer for cancellation of the clouds.

Spencer

v. James, 955 So.2d 1287, 1292-93 (La. App. 2 Cir. 2007).
Plaintiff's general contention that one may establish
ownership of an abandoned thing by occupancy is irrelevant in
this case.

The lending institutions holding a mortgage on the

property asserted their right to seize the property, i.e.,
asserted their ownership, upon the default of the Honeycutts.
(Rec. Doc. 8-2).3

Thus, the voluntariness that comprises an

3

The Court may consider documents which are incorporated by
reference in the complaint. Dorsey v. Portfolio Equities, Inc.,
540 F.3d 333, 338 (5th Cir. 2008)(citing Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308 (2007)). The Court may also
take notice of matters of public record, such as mortgage and
conveyance documents. See Morlock, LLC v. Bank of America, N.A.,
573 F. Appx. 364, 366 n.3 (5th Cir. 2014).
Further, Plaintiff is incorrect that corporations cannot
exercise ownership over immovable property. La. C.C. art. 479
("The right of ownership may exist only in favor of a natural
person or a juridical person."); La. C.C. art. 24 (providing, in
part, "[a] juridical person is an entity to which the law
attributes personality, such as a corporation or a partnership").
6

essential part of a finding of abandonment is not present in
these facts.

See Porrier v. Dale's Dozer Srvc., Inc., 770 So.2d

531, 537 (La. App. 1 Cir. 2000)([A]bandonment . . . requires a
manifestation of the intent to give up ownership.").

The Court

goes no further in examining the applicability of such a theory
to these circumstances.
Even assuming that Plaintiff has had corporeal possession
since October 13, 2014, Plaintiff cannot establish any other
prima facie case for ownership or even for a possessory action.
La. C.C. art. 794 (requiring thirty years of acquisitive
prescription to establish ownership in the absence of just title
and good faith); La. C.C.P. art. 3658 (requiring a minimum of one
year of possession as an element of a possessory action).

Any

claim to ownership by Plaintiff based on his alleged status as an
"Indigenous Moorish American National" lacks any legal basis and
is thus disregarded as frivolous.

See, e.g., Bey v. Cherry, no.

14-4802, 2015 WL 300388, at *2 (D. N.J. Jan. 21, 2015)(collecting
cases).
Finally, the Court finds that Plaintiff has pleaded his
"best case" and thus will not be permitted to amend his
Complaint. Brewster v. Dretke, 587 F.3d 764, 767–68 (5th Cir.
2009)(citing Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.
1998)).

Further amendment based on these facts would not cure

the Complaint's current deficiencies.

7

Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Dismiss (Rec. Doc. 8) filed
by defendant Bank of America, N.A. ("BANA") is GRANTED.

Pursuant

to F.R.C.P. 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B), Plaintiff’s
Complaint is DISMISSED WITH PREJUDICE in its entirety.
July 6, 2015
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

8