Boe v. JP Morgan Chase Bank, NA et al

Filing 52

ORDER OVERRULING plaintiff's objections [Docket Nos. 45-46] and ADOPTING the Report and Recommendation of the Magistrate Judge dated April 13, 2011 34 . Accordingly, IT IS HEREBY ORDERED that: 1. Defendants' Motion to Dismiss 16 is GRANTED. 2. Plaintiff's Motion to Deny Dismissal Motion 32 is DENIED. (Written Opinion). Signed by Judge John R. Tunheim on August 16, 2011. (HAM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 10-2171 (JRT/JJG)

TIMOTHY J. BOE,
Plaintiff/Counter Defendant,
v.

JP MORGAN CHASE BANK, NA and
CHASE HOME FINANCE LLC,

ORDER ADOPTING THE REPORT
AND RECOMMENDATION OF THE
MAGISTRATE JUDGE

Defendants/Counter Claimants,
JOHN OR JANE DOES 1-100, unknown
investors, and JOHN ROES 1-100, being
undisclosed mortgage aggregators
(wholesalers), mortgage originators, loan
seller, Trustee of Pooled Assets, Trustee
for holders of certificates of
Collateralized Mortgage Obligations,
Defendants.

Timothy J. Boe, 5121 70th Avenue, Princeton, MN 55371, pro se.
Edwin H. Caldie, III and Monica L. Davies, LEONARD, STREET AND
DEINARD, PA, 150 South Fifth Street, Minneapolis, Suite 2300, MN
55402, for defendants/counterclaimants JP Morgan Chase Bank, NA and
Chase Home Finance LLC.

Before the Court are plaintiff Timothy J. Boe’s objections to the Report and
Recommendation of United States Magistrate Judge Jeanne H. Graham dated April 13,
2011. (Docket No. 34.) Boe executed a promissory note and mortgage in favor of

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defendant JP Morgan Chase Bank, N.A. on February 28, 2007, in exchange for a loan of
$232,400 to purchase real estate. (Compl. ¶¶ 8, 9, Docket No. 1.) Boe defaulted on the
loan, resulting in foreclosure and a sheriff’s sale of the home on March 19, 2009. (Id.
¶ 31.) Boe subsequently filed suit against JP Morgan Chase Bank and Chase Home
Finance LLC (collectively “Chase”) on May 27, 2010.
Boe’s complaint alleges that Chase violated: (1) the Truth in Lending Act
(“TILA”), (2) the Real Estate Sales Procedures Act (“RESPA”), and (3) Minnesota’s
statute of frauds, Minn. Stat. § 513.04.1 Boe also states a claim for intentional infliction
of emotional distress and alleged defects in the foreclosure process. Boe requests that the
Court void the mortgage, note, and foreclosure; he also seeks injunctive relief as well as
damages. Chase denies any wrongdoing, and asserts a counterclaim for a declaratory
judgment that it is the rightful property owner. (Docket No. 5.) Chase moved to dismiss
the suit pursuant to Federal Rule of Civil Procedure 12(c).2 (Docket No. 16.) On
April 13, 2011, the Magistrate Judge issued a Report and Recommendation
recommending that the Court grant Chase’s motion and dismiss the case.

(Docket

No. 34.) Boe raises numerous objections to the Report and Recommendation, including
objections that the TILA limitations period should be tolled, Chase violated the statute of
frauds, the statute of frauds is unconstitutional, and Chase has “unclean hands.”
1

In his complaint, Boe cites Minn. Stat. § 336.2-201, the statute of frauds governing sales
of goods. Liberally construing Boe’s complaint, the Magistrate Judge analyzed the claim
pursuant to Minn. Stat. § 513.04, governing conveyances of real property. The Court now does
so as well.
2

Boe’s memorandum in opposition to Chase’s motion to dismiss is styled as and
docketed as a “Motion to Deny Dismissal.” (Docket No. 32.)
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The Court reviews de novo those portions of the Magistrate Judge’s Report and
Recommendation to which Boe objects. See 28 U.S.C. § 636(b)(1)(C); D. Minn. L.R.
72.2. When considering a motion for judgment on the pleadings under Fed R. Civ. P.
12(c), the Court must “‘accept as true all factual allegations set out in the complaint’ and
. . . ‘construe the complaint in the light most favorable to the plaintiff[s], drawing all
inferences in [their] favor.’” Ashley County, Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th
Cir. 2009) (quoting Wishnatsky v. Rovner, 433 F.3d 608, 610 (8th Cir. 2006)). A motion
for judgment on the pleadings is reviewed under the same standard as a motion to dismiss
under Rule 12(b)(6). See Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009).
“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.’” Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). In order to pass the plausibility requirement a claim must assert more than
“an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Although the Court holds pro se litigants
to a lesser pleading standard, they must still allege sufficient facts to support their claim.
See Gerstner v. Sebig, LLC, 386 Fed. App’x 573, 575 (8th Cir. 2010).
The Magistrate Judge correctly concluded that the complaint fails to state a claim
on which relief can be granted.

Boe does not challenge the Magistrate Judge’s

determination that his TILA and RESPA claims are barred by the statute of limitations;
he objects, however, that the limitations period should be tolled for his TILA claim based
on the federal common law doctrine of fraudulent concealment. See Evans v. Rudy-3-

Luther Toyota, Inc., 39 F. Supp. 2d 1177, 1184 (D. Minn. 1999) (explaining that under
the doctrine of fraudulent concealment, TILA’s limitations period would commence on
“the date on which the borrower discovers or has a reasonable opportunity to discover the
fraud involving the complained of TISA violation”) (internal quotation marks omitted).
A plaintiff must establish two elements to support the application of the doctrine of
fraudulent concealment: “1) that the Defendant engaged in a course of conduct to conceal
evidence of the Defendant’s alleged wrongdoing; and 2) that the Plaintiff failed to
discover the facts giving rise to [his] claim despite [his] exercise of due diligence.” Id.
After a careful review of Boe’s complaint, the Court finds it bereft of factual allegations
to support either element. Accordingly, Boe’s TILA claim must be dismissed.3
In his objection, Boe reasserts his claim that Chase’s failure to sign the mortgage
loan documents violates the statute of frauds. Boe’s argument, however, is contrary to
the statutory language which makes clear that only the person “‘creating, granting,
assigning, surrendering, or declaring’ the interest in real property must sign the
document.” Boe v. TCF Nat. Bank, No. 10-2362, 2010 WL 3827946, at *3 (D. Minn.
Sept. 24, 2010) (quoting Minn. Stat. § 513.04). Here, Boe created the interest in his real
property and in his complaint he acknowledges signing the promissory note. (Compl.
¶¶ 8, 13.) Boe’s complaint does not sufficiently allege that the statute of frauds violates
the federal constitution’s Equal Protection clause or prohibition on laws “impairing the

3

Moreover, to the extent Boe has asserted allegations of common law fraud, they have
not been pled with sufficient particularity. Fed. R. Civ. P. 9(b).
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obligation of contracts,” and the Court finds his constitutional challenges without merit.
U.S. Const. art. I, § 10, cl. 1.
Finally, Boe objects that he should be able to proceed with his claim of unclean
hands despite the fact such a claim was not included in his complaint, and despite Boe’s
failure to attribute any of the conduct supporting the claim to Chase directly. The Court
overrules this objection due to the lack of factual support in the complaint. The Court
also overrules all other objections discernable in Boe’s submission but not specifically
addressed in this order.

ORDER
Based on the foregoing, and the records, files, and proceedings herein, the Court
OVERRULES plaintiff’s objections [Docket Nos. 45-46] and ADOPTS the Report and
Recommendation of the Magistrate Judge dated April 13, 2011 [Docket No. 34].
Accordingly, IT IS HEREBY ORDERED that:
1.

Defendants’ Motion to Dismiss [Docket No. 16] is GRANTED.

2.

Plaintiff’s Motion to Deny Dismissal Motion [Docket No. 32] is DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: August 16, 2011
at Minneapolis, Minnesota.

__________s/ John R. Tunheim________
JOHN R. TUNHEIM
United States District Judge

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