Nichols v. Wells Fargo Home Mortgage et al

Filing 42

RULING: Defendants' Motions to Dismiss (Rec Docs 24 and 35) are GRANTED. Plaintiff's Motion to Dismiss (Rec Doc 16), Motion to Deny Defendants Motion to Dismiss Plaintiffs Amended Compliant or in the Alternative to Abstain or Stay Proceedings for a More Definite Statement (Rec Doc 26), and Motion to Dismiss Plaintiff's Petition to Enforce Security Interest by Ordinary Process (Rec Doc 32) are hereby DENIED AS MOOT. Signed by Judge Shelly D. Dick on 2/1/2018. (KAH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

NETTIE B. NICHOLS

CIVIL ACTION

VERSUS

17-104-SDD-EWD

WELLS FARGO HOME MORTGAGE
ET. AL.
RULING
Pending before the Court are three separate motions.1 The original Motion to
Dismiss2 was filed by the pro se Plaintiff, Nettie B. Nichols (“Plaintiff” or “Nichols”) on June
16, 2017. Wells Fargo Home Mortgage, et. al. (“Defendants” or “Wells Fargo”) then filed
a Motion to Dismiss Plaintiff’s Amended Complaint or in the Alternative to Abstain or Stay
Proceedings or for a More Definite Statement,3 to which Plaintiff filed a Motion to Deny
Defendants Motion to Dismiss Plaintiffs Amended Complaint or in the Alternative to
Abstain or Stay Proceedings or for a More Definitive Statement.4 For the following
reasons, the Defendants’ Motion to Dismiss is GRANTED,5 and Plaintiff’s Motions6 are
DENIED as moot.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Before the Court is a pro se Plaintiff who filed her original Complaint7 in the United

1

Rec. Docs. 16, 24, 26.
Rec. Doc. 16.
3
Rec. Doc. 24.
4
Rec. Doc. 26.
5
Rec. Doc. 24
6
Rec. Doc. 16, 26, 32.
7
Rec. Doc. 1.
2

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States District Court for the District of Columbia on January 27, 2017. Plaintiff alleges
that Wells Fargo stopped accepting payment on a loan taken against a home which she
allegedly co-owned with Ms. Gloria R. LaMotte (“LaMotte”) in August and September
2016.8 The original servicer of the loan was America’s Servicing Company (“ASC”), which
Plaintiff alleges is a division of Wells Fargo Home Mortgage.9 The loan was taken by the
home’s co-owner, LaMotte, in 2000 and was assigned to Wells Fargo Home Mortgage
for loan servicing.10 LaMotte died in 2012.11 Plaintiff alleges:
In October 2016, Wells Fargo stopped all communication []
with the Plaintiff stating the house belongs to Wells Fargo and
they were taking possession of the house immediately
because Ms. LaMotte is dead. They further asserted that the
power of attorney held by the Plaintiff for Ms. LaMotte’s affairs
died with Ms. LaMotte; they refused to speak with the Plaintiff
concerning the account.12
Plaintiff asserts that she tried to pay the loan in November 2016, “and was asked by a
Wells Fargo representative for the papers from the court showing personal representative
[capacity] over the estate of Ms. LaMotte.”13
After Plaintiff provided “the papers from the Court,”14 Wells Fargo sent Plaintiff a
bill for $2,424.24.15 According to Plaintiff, she told Wells Fargo that she had made
payments in August and September, although upon review of her bill she “noticed” that
the payments for August and September were unapplied.16 Plaintiff further alleges that

8

Rec. Doc. 12-1, p. 2.
Id.
10
Id.
11
Id.
12
Id. at p. 2.
13
Id. at pp. 2-3.
14
Id. at p. 3.
15
Id. at p. 3.
16
Id.
9

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“Wells Fargo failed to apply her payments to the loan and refused to accept payments in
September and November. Instead, Wells Fargo allowed the loan to become 5 months
delinquent so they, as the Master Servicer on the loan, could give the account over to the
trustee, Deutsche Bank for foreclosure.”17 Plaintiff avers “the Defendants’ purpose is to
fraudulently take the house from the Plaintiff since Ms. LaMotte has passed.”18
Plaintiff alleges that Defendants knew of LaMotte’s death in 2012 because Plaintiff
notified ASC, and the Court published the will of LaMotte in the National Law Journal.19
Plaintiff alleges that ASC, Wells Fargo Home N.A., Deutshe Bank National Trust
Company as Trustee, and Soundview Home Loan Trust 2006-2 did not appear in the
District of Columbia courts.20 According to Plaintiff, “the Defendants’ time for filing a claim
of ownership has expired for 625 South 15 Street [,] Baton Rouge, LA 70802. All assets
were released to [Plaintiff], Personal Representative for [Ms. LaMotte], on April 30, 2013,
by the Superior Court of the District of Columbia Probate Division [.]”21 Plaintiff argues
that the home was willed to her “and ordered by the court because the creditors did not
appear in court to claim their asset.”22 It is Plaintiff’s contention that “[she] owns the home
but not the debt, as confirmed by Wells Fargo [.]”23
Simultaneous with the adjudication of this case, Plaintiff alleges that Deutshe
Bank, the trustee of the loan on the property, filed a foreclosure action in the 19th Judicial
District Court for the State of Louisiana on February 3, 2017.24 Plaintiff states that she
17

Id.
Id.
19
Id.
20
Id.
21
Id. at p. 4.
22
Id.
23
Id.
24
Id. at p. 4.
18

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called Dean Morris, the attorneys handling the foreclosure, and notified them that the
residence was subject to litigation in this Court.25 Plaintiff alleges that Dean Morris did
not proceed with the foreclosure because she provided “the papers from the court and
the Plaintiff’s bank statement to show proof of payments to the mortgage company.”26
Plaintiff “requests the foreclosure of the home to cease,” “to be absolved from the
debt against the property and to be reimbursed for the mortgage payments she made
over the last four and a-half years,” and seeks judgment against the Defendants for an
amount in excess of $75,000.”27
II.

LAW AND ANALYSIS
A. Motion to Dismiss Under Rule 12(b)(6)28
When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”29 The
Court may consider “the complaint, its proper attachments, documents incorporated into
the complaint by reference, and matters of which a court may take judicial notice.”30 “To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state
a claim to relief that is plausible on its face.’”31 In Twombly, the United States Supreme

25

Id. at 5.
Id.
27
Id. The Court has jurisdiction pursuant to diversity jurisdiction pursuant to 28 U.S.C. § 1332 because all
Defendants and the Plaintiff are domiciled in different states, and the amount in controversy is in excess of
$75,000 given that the property at issue is alleged to be $169,900.
28
The Court notes that Defendants moved for dismissal under Rule 12(b) without specifying which
subsection applied. Based upon the arguments presented in Defendants’ Motion to Dismiss, it is clear to
the Court that Defendants’ sought dismissal under Rule 12(b)(6); accordingly, the Court will analyze the
Defendants’ motion under the Rule 12(b)(6) standard.
29
In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin K. Eby Constr.
Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
30
Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (quoting Dorsey v. Portfolio
Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)).
31
In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Martin K. Eby Constr. Co. v. Dallas
Area Rapid Transit, 369 F.3d at 467).
26

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Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6)
motion to dismiss. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”32 A complaint is also insufficient if it
merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”33 However,
“[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”34 In order to satisfy the plausibility standard, the plaintiff must show “more than
a sheer possibility that the defendant has acted unlawfully.”35 “Furthermore, while the
court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable
to the plaintiff.’”36 On a motion to dismiss, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.”37
B. Motion to Dismiss the Complaint of a Pro Se Plaintiff
The United States Supreme Court has ruled that a more liberal standard applies
when the Court is evaluating a 12(b)(6) motion when the Plaintiff is pro se.38 The
Supreme Court in Erickson v. Pardus39 reasoned: “a pro se complaint, however inartfully

32

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and brackets omitted)
(hereinafter Twombly).
33
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted)
(hereinafter “Iqbal”).
34
Twombly, 550 U.S. at 570.
35
Iqbal, 556 U.S. at 678.
36
Taha v. William Marsh Rice University, 2012 WL 1576099 at *2 (quoting Southland Sec. Corp. v. Inspire
Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004).
37
Twombly, 550 U.S. at 556 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d
209 (1986)).
38
Erickson v. Pardus, 551 U.S. 90, 93 (2007).
39
Id.

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pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.”40 The Court in Erickson reversed and remanded the district court’s ruling, which
granted the 12(b)(6) motion, because the district court determined that the plaintiff failed
to allege that the denial of medical treatment in prison caused him “substantial harm.”41
The Supreme Court reasoned that the district court’s ruling was inconsistent with the
12(b)(6) standard outlined in Twombly and Iqbal, and the liberal pleading standard applied
when the Plaintiff is pro se.
The plaintiff in Erickson specifically alleged that prison officials violated his 8th
Amendment rights and sued under 42 U.S.C. § 1983 (“§ 1983”).42 The Court has carefully
reviewed Plaintiff’s Comprehensive Amended Complaint43 but is unable to discern under
what statute Plaintiff is seeking relief and what laws Defendants are alleged to have
breached. Unlike the pro se plaintiff in Erickson, Nichols has failed to allege which state
or federal laws Defendants violated and the statute that entitles her to the prayed for relief.
Because the plaintiff in Erickson sued under § 1983 and specifically alleged the laws
defendants allegedly violated, the Supreme Court was able to conclude that sufficient
facts were plead for his claim to survive a 12(b)(6) motion.44 As our sister court in the
Southern District of Texas noted: “Dismissal under Rule 12(b)(6) is proper not only where
the plaintiff fails to plead sufficient facts to support a cognizable legal theory, but also
where the plaintiff fails to allege a cognizable legal theory.”45 Even under the liberal lens
40

Id.
Id.
42
Id. at 90.
43
Rec. Doc. 12-1.
44
Erickson, 551 U.S. at 93.
45
Residents Against Flooding v. Reinvestment Zone Number Seventeen, City of Houston, Texas, 260
F.Supp.3d 738, 756 (S.D. Tex. May 9, 2017)(citing Kjelvander v. Citicorp, 156 F.R.D. 138, 140 (S.D. Tex.
1994)(citing Garret v. Commonwealth Mortgage Corp., 938 F.2d 591, 594 (5th Cir. 1991))).
41

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of the pro se pleading standard, Plaintiff’s Comprehensive Amended Complaint cannot
survive Defendants’ 12(b)(6) motion. By failing to specify any theory or law which entitles
Plaintiff to the relief sought, and which laws Defendants violated, the Court is unable to
perform a rudimentary 12(b)(6) analysis because Nichols has failed to plead a cognizable
legal theory and “the grounds of [her] entitlement to relief.”46 Further, the Court is unable
to identify a legal theory, based on the facts as pled, that entitles Plaintiff to the relief
sought. Finally, the Court finds that leave to amend any further would be futile considering
that Plaintiff has already amended her Complaint twice.47

46
47

supra n. 29.
See Rec. Doc. 10, Rec. Doc. 13, Rec. Doc. 12.

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III.

CONCLUSION
For the above stated reasons, Defendants’ Motions to Dismiss48 are GRANTED.

Plaintiff’s Motion to Dismiss,49 Motion to Deny Defendants Motion to Dismiss Plaintiffs
Amended Compliant or in the Alternative to Abstain or Stay Proceedings for a More
Definite Statement,50 and Motion to Dismiss Plaintiff’s Petition to Enforce Security Interest
by Ordinary Process,51 are hereby DENIED AS MOOT.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on February 1, 2018.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

48

Rec. Doc. 24. and Rec. Doc. 35-1.
Rec. Doc. 16.
50
Rec. Doc. 26.
51
Rec. Doc. 32.
49

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