Trahan v. Deutsche Investment Management Americas, Inc. et al
Filing
90
ORDER AND REASONS GRANTING 66 Motion to Dismiss Pursuant to Federal Rule 12 (b)(6) as set forth in document. Signed by Judge Ivan L.R. Lemelle on 11/21/2016. (mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NORMAN PAUL TRAHAN
CIVIL ACTION
VERSUS
NO. 15-3039
DEUTSCHE INVESTMENT MANAGEMENT
AMERICAS, INC., ET AL.
SECTION “B”(2)
ORDER AND REASONS
Before the court is Defendant’s, GMFS, LLC, “Motion to
Dismiss Pursuant to Federal Rule 12 (b)(6)” (Rec. Doc. 66) as
well as Plaintiff’s, Norman Paul Trahan, “Opposition to
Defendant’s Motion to Dismiss Pursuant to Federal Rule 12
(b)(6)” (Rec. Doc. 71). Defendant GMFS seeks dismissal of any
claims against it, arguing that Plaintiff’s Amended Complaint
does not provide a cause of action upon which relief can be
granted. For the reasons set forth below, IT IS ORDERED that the
Defendant’s Motion to Dismiss Pursuant to Federal Rule 12 (b)(6)
is GRANTED.
I.
FACTS AND PROCEDURAL HISTORY
On March 24, 2005, the Plaintiff, Norman Paul Trahan, executed
a promissory note in favor of PLC Finance, Inc. for $84,000 and
secured by a Mortgage executed by Trahan 1. This Mortgage was given
in
favor
of
Mortgage
Electronic
1
Registration
Systems,
Inc.
For a more comprehensive procedural history please refer to the
Court’s July 20, 2016 Order and Reasons.
1
(“MERS”) as nominee for PLC Finance, Inc. On March 24, 2005, the
promissory note was endorsed to GMFS. GMFS executed an open Allonge
to the Note, rendering it bearer paper. GMFS sold all right, title,
and interest of this loan to Goldman Sachs on May 29, 2005.
On February 1, 2007, Deutsche Bank National Trust Company
moved to enforce the Promissory Note and Mortgage by executory
process and a state district court issued an Order for the sale
and seizure of the property. The property was sold at public
auction on May 16, 2007. Plaintiff added Defendant, GMFS, in their
August 13, 2015 First Amended Complaint.
GMFS filed a Motion to Dismiss against the Plaintiff and this
Court issued an Order and Reasons regarding the motion on July 20,
2016. This Court stated that the motion would be granted unless
the Plaintiff filed an amended complaint within fourteen days of
the Order. In the amended complaint the Court ordered that the
Plaintiff
against
detail
the
facts
Defendant.
that
would
Plaintiff
support
timely
legal
filed
conclusions
the
Amended
Complaint and GMFS in the instant action has moved to dismiss the
case for a second time.
RULE 12 (b)(6) DISMISSAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted. Such a motion is rarely
granted because it is viewed with disfavor. See Lowrey v. Tex. A
2
& M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
When reviewing a motion to dismiss, courts must accept all
well-pleaded
facts
as
true
and
view
them
in
the
light
most
favorable to the non-moving party. Baker v. Putnal, 75 F.3d 190,
196 (5th Cir. 1996). However, “[f]actual allegations must be enough
to raise a right to relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). “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.”
2009)(quoting
Gonzales
v.
Ashcroft
Kay,
v.
577
Iqbal,
F.3d
129
600,
603
S.Ct.
(5th
1937,
Cir.
1949
(2009))(internal quotation marks omitted). The Supreme Court in
Iqbal explained that Twombly promulgated a “two-pronged approach”
to determine whether a complaint states a plausible claim for
relief. Iqbal, 129 S.Ct. at 1950. First, courts must identify those
pleadings that, “because they are no more than conclusions, are
not entitled to the assumption of truth.” Id. Legal conclusions
“must
be
supported
by
factual
allegations.”
Id.
“Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 1949.
Upon identifying the well-pleaded factual allegations, courts
“assume their veracity and then determine whether they plausibly
3
give rise to an entitlement of relief.” Id. at 1950. 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. at 1949. This
is a “context-specific task that requires the reviewing court to
draw
on
its
plaintiffs
judicial
must
experience
“nudge[]
their
and
claims
common
across
sense.”
the
Id.
line
The
from
conceivable to plausible.” Twombly, 550 U.S. at 570.
DISCUSSION
12 C.F.R § 226.34(a) enumerates various actions that
creditors who extend mortgage credits are prohibiting from
taking. A creditor as described in this section is defined as “a
person who regularly extends consumer credit 3 that is subject
to a finance charge or is payable by written agreement in more
than four installments (not including a down payment), and to
whom the obligation is initially payable, either on the face of
the note or contract, or by agreement when there is no note or
contract.” 12 C.F.R § 226.2 (17)(i).
Plaintiff in his First Amended complaint (Rec. Doc. 61) and
his Opposition (Rec. Doc. 71) bring claims against the Defendant
under 12 C.F.R § 226.34(a)(4). Even if GMFS meets the statutory
definition of creditor, this code section is only applicable to
creditors who extend mortgage credits. Plaintiff has not plead
facts that demonstrate GMFS extended mortgage credits to him.
4
Allegations of executing a promissory note and selling the
mortgage to Goldman Sachs do not constitute facts that
demonstrate GMFS extended mortgage credits to the Plaintiff. The
alleged harm that Plaintiff suffered under 12 C.F.R §
226.34(a)(4) was not caused by any actions attributable to GMFS.
Consequently, the Defendant’s motion to dismiss should be
granted because Plaintiff has failed to state a claim upon which
relief can be granted, especially without factual allegations to
support legal conclusions.
New Orleans, Louisiana, this 21st day of November, 2016.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
5
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