Tully et al v. Bank of America, N.A. et al

Filing 32

MEMORANDUM OPINION AND ORDER. 1. Plaintiffs' Motion to Remand to State Court (Doc. No. 17 ) is DENIED. 2. Bank Defendants' Amended Motion to Dismiss (Doc. No. 7 ) is GRANTED. 3. Sheriff Stanek's Motion to Dismiss (Doc. No. 10 ) is GRANTED. 4. Plaintiffs' Amended Complaint (Doc. No. 6 ), as it is asserted against Sheriff Stanek, is DISMISSED WITH PREJUDICE. 5. Plaintiffs' Amended Complaint (Doc. No. 6 ), as it is asserted against the Bank Defendants, is DISMISSED WITHOUT PREJUDICE.(Written Opinion). Signed by Judge Donovan W. Frank on 5/17/2011. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Mark A. Tully; Thane T. Truax and
Vicki K. Truax; Kenneth Britt and
Lavera “Sand” Britt; Jerry G. Lindholm
and Janelle C. Lindholm; Robi J. Nash;
Jorge L. Cervera and Julia Cervera;
Brad A. Cartier; Donald Houck and
Nathan Houck; Jared Rothenberger;
Scott Dobesh; Jeffrey F. Cox; Chip A.
Rice and Linda S. Rice; and Richard
Procter,
Plaintiffs,
v.

Civil No. 10-4734 (DWF/JSM)

MEMORANDUM
OPINION AND ORDER

Bank of America, N.A.; BAC Home Loans
Servicing, LP; Wells Fargo Bank, N.A. as
Trustee for BAFC Mortgage; U.S. Bank
National Association, as Trustee;
Countrywide Document Custody Services,
a Division of Treasury Bank, NA; Countrywide
Home Loans, Inc.; The Bank of New York Mellon
f/k/a The Bank of New York as Trustee for
The Benefit of Alternative Loan Trust and
Certificateholders CWALT, Inc. Alternative
Loan Trust; MERSCORP, Inc.; Mortgage
Electronic Registration Systems, Inc.;
and Richard W. Stanek, in his official capacity
as Sheriff of Hennepin County,
Defendants.
_____________________________________________________________________
William B. Butler, Esq., Butler Liberty Law, LLC, counsel for Plaintiffs.
Mark G. Schroeder, Esq., and Molly B. Thornton, Esq., Briggs & Morgan, PA, counsel
for Bank Defendants.
Charles H. Salter, Assistant County Attorney, Hennepin County Attorney’s Office,
counsel for Defendant Richard W. Stanek.
_____________________________________________________________________

INTRODUCTION
This matter is before the Court on a Motion to Remand to State Court brought by
Plaintiffs, a Motion to Dismiss brought by Defendant Richard W. Stanek, and a Motion
to Dismiss brought by Bank of America, N.A. (“BOA NA”); BAC Home Loans
Servicing, LP (“BAC HLS”); Wells Fargo Bank, N.A. as Trustee for BAFC Mortgage;
U.S. Bank National Association as Trustee; Countrywide Document Custody Services, a
Division of Treasury Bank, N.A.; Countrywide Home Loans, Inc.; The Bank of New
York Mellon f/k/a The Bank of New York as Trustee for The Benefit of Alternative Loan
Trust and Certificateholders CWALT, Inc. Alternative Loan Trust; MERSCORP, Inc.;
and Mortgage Electronic Registration Systems, Inc. (“MERS”) (together, the “Bank
Defendants”). For the reasons set forth below, the Court denies Plaintiffs’ Motion to
Remand, grants Sheriff Stanek’s Motion to Dismiss, and grants the Bank Defendants’
Motion to Dismiss.
BACKGROUND
Plaintiffs are homeowners and individual borrowers who claim ownership
interests in various residential properties located in Minnesota. (Am. Compl. ¶¶ 20-33.)
Plaintiffs allege that loans on the various properties at issue are evidenced by promissory
notes and secured by mortgages. (Id.) Plaintiffs allege that Defendants MERS or BOA
NA are the mortgagees of record for all but two of the loans at issue in this action. (Id.)
Plaintiffs allege that all of the loans at issue are serviced by either BOA NA or BAC
HLS. (Id. ¶¶ 45-58.) Plaintiffs allege that the Countrywide Document Custody Services

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and Countrywide Home Loans, Inc. (“Countrywide Defendants”) were acquired by Bank
of America in 2009, and that Wells Fargo, N.A. and The Bank of New York Mellon
claim securitized loans in two of the loans at issue. (Id. ¶¶ 38, 45-46.) Defendant
Richard Stanek is Sheriff of Hennepin County. (Id. ¶ 43.) Except for Sheriff Stanek,
none of the Defendants are Minnesota entities or have their principal places of business in
Minnesota. (Compl. ¶¶ 34-40; Am. Compl. ¶¶ 34-40.)
Plaintiffs originally commenced this action in Hennepin County District Court on
or around October 22, 2010. (Doc. No. 1.) On November 24, 2010, the Bank Defendants
removed this action to federal court with the consent of Sheriff Stanek. The Bank
Defendants based removal on two counts of the original complaint, one that alleged a
violation of the Fifth and Fourteenth Amendments to the United States Constitution
(original Count IV), and a second that alleged the violation of federal constitutional rights
pursuant to 42 U.S.C. § 1983 (original Count XVI). (Doc. No. 1.) The Bank Defendants
based removal on 28 U.S.C. § 1331. (Id.)
On December 1, 2010, the Bank Defendants filed a motion to dismiss. In
response, Plaintiffs filed an Amended Complaint. The Amended Complaint alleges
fourteen causes of action: (I) Mortgages are Invalid and Unenforceable; (II) Slander of
Title; (III) Defendants are Not Holders in Due Course of the Original Notes; (IV) Due
Process Violation; (V) Defendants Do Not have Legal Standing to Foreclose Mortgage;
(VI) Defendants are not Real Parties in Interest; (VII) Fraud; (VIII) Negligent
Misrepresentation; (IX) Unjust Enrichment; (X) Equitable Estoppel; (XI) Qui-Tam
Private Attorney General Enforcement of Minn. Stat. §§ 357.18, 508.82, 508A.82;
3

(XIII) Third-Party Beneficiary; and (XIV) Accounting. The Amended Complaint does
not allege claims under the Fifth and Fourteenth Amendments to the United States
Constitution or a violation of federal constitutional rights pursuant to 42 U.S.C. § 1983.
Instead, Plaintiffs’ due process claim is asserted under the Minnesota Constitution.
Plaintiffs challenge the Bank Defendants’ legal rights with respect to the
underlying residential mortgages and promissory notes. Plaintiffs allege that they
executed original notes and/or mortgages in favor of an entity different from the Bank
Defendants who now claim the legal right to foreclose on Plaintiffs’ homes (Am. Compl.
¶ 4); that many of the Plaintiffs have demanded that the Bank Defendants provide proof
of ownership and evidence of chain of title to the original notes and/or mortgages (id.
¶ 5); that the Bank Defendants refused to comply with Plaintiffs’ demands (id. ¶ 6); that
the Bank Defendants do not have valid, clear, legal title to and are not holders in due
course of Plaintiffs’ original notes (id. ¶¶ 7-8); and that Bank Defendants cannot assert
rights under the mortgages or demand that the county sheriff remove Plaintiffs from their
homes through foreclosure (id. ¶ 11). Plaintiffs also allege that the Bank Defendants
securitized and sold Plaintiffs’ original notes into a “pooling and servicing agreement”
(“PSA”), in which at least 100 percent of the present value of the total payments due on
Plaintiffs’ original notes were sold to third-party purchasers or mortgage-backed
securities (id. 12), and that the Bank Defendants sold all of the rights to receive 100
percent of the payments due on Plaintiffs’ original notes to entities and trusts created by
the PSA. (Id. ¶ 14.) Plaintiffs further allege their original notes are not unconditionally

4

enforceable negotiable instruments and that the Bank Defendants cannot assert the right
to foreclose on the mortgages. (Id. ¶¶ 16-17.)
Plaintiffs filed a motion to remand to state court. The Bank Defendants and Sheriff
Stanek filed separate motions to dismiss the Amended Complaint. The Court considers
the motions below.
DISCUSSION
I.

Motion to Remand
Plaintiffs assert that because they amended their complaint, which does not

contain the previously pled federal claims, the Court lacks subject-matter jurisdiction
over this action. In particular, Plaintiffs assert that the Amended Complaint only alleges
state-law claims and that the Court should decline to exercise supplemental jurisdiction
over those claims and remand this action to state court.
Pursuant to 28 U.S.C. § 1441(a), a defendant may remove “any civil action
brought in a State court of which the district courts of the United States have original
jurisdiction . . . to the district court of the United States for the district and division
embracing the place where such action is pending.” A party opposing removal may bring
a motion requesting that the federal court remand the case back to state court. 28 U.S.C.
§ 1447(c). The district court shall remand the case back to state court if it determines that
the court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c); Martin v. Franklin
Capital Corp., 546 U.S. 132, 134 (2005). On a motion to remand, the party seeking
removal and opposing remand bears the burden of demonstrating federal jurisdiction. In

5

re Bus. Men’s Assur. Co. of Am., 992 F.2d 181, 183 (8th Cir. 1993). The Court should
resolve any doubt as to the propriety of removal in favor of remand. Id.
The propriety of removal is determined by the record as it stands at the time the
petition for removal is filed. See Hatridge v. Aetna Causalty & Surety Co., 415 F.2d 809,
814 (8th Cir. 1969); Nelson v. Citibank (South Dakota) N.A., 794 F. Supp. 312, 315 (D.
Minn. 1992) (explaining that federal jurisdiction is not defeated by post-removal
amendments to eliminate federal claims).1 There is no dispute that federal question
jurisdiction existed at the time of removal, as Plaintiffs’ original complaint stated claims
under both federal constitutional and statutory law. Therefore, the Court concludes that
removal was proper and that the Court can properly exercise jurisdiction over this action.2
The Bank Defendants contend that the Court also has subject matter jurisdiction
via the parties’ diversity of citizenship (now and at the time of the original Complaint)
because Plaintiffs fraudulently joined Sheriff Stanek. When a plaintiff has joined a
non-diverse party as a defendant in a state case, the defendant may avoid remand to state

1

Under Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988), the Court has
discretion to remand a properly removed action when all federal-law claims have been
eliminated and only pendent state-law claims remain. 484 U.S. at 345. However,
whether the Court has federal question jurisdiction over Plaintiffs’ claims is determined
by reference to the record as of the time of removal. Here, Plaintiffs’ original Complaint
was in effect at the time of removal.
2

Plaintiffs acknowledge that the Court may retain jurisdiction over the remaining
state-law claims based on supplemental jurisdiction, but argues that the Court should
decline to do so. (Pls.’ Mot. in Supp. of Mot. to Remand to State Court at 4, 5.) At the
hearing on this matter, the Court indicated that unless the Court also has diversity
jurisdiction, it would remand the action back to state court.

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court (in the absence of a substantial federal question) by demonstrating that the nondiverse party was fraudulently joined. Wiles v. Capitol Indemnity Corp., 280 F.3d 868,
871 (8th Cir. 2002). The Eighth Circuit has defined fraudulent joinder as “the filing of a
frivolous or otherwise illegitimate claim against a non-diverse defendant solely to prevent
removal.” Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 809 (8th Cir. 2003). Joinder is
fraudulent when there is no reasonable basis in fact and law supporting a claim against
the non-diverse defendant. Id. at 810 (8th Cir. 2003).
While both the original Complaint and the Amended Complaint fail to clearly
specify which claims are being asserted against Sheriff Stanek, it appears that Plaintiffs
claim that Sheriff Stanek violated Plaintiffs’ rights to due process by conducting sheriff
foreclosure sales by advertisement. (See Count IV—“Foreclosure of Plaintiffs’ homes,
by advertisement and through a sale conducted by Minnesota county sheriffs, violated the
Minnesota Constitution’s due process clause.”) In their opposition to the Bank
Defendants’ Amended Motion to Dismiss, Plaintiffs explain that they allege that the
Bank Defendants in this action are using the lack of court scrutiny in the non-judicial
foreclosure process to wrongfully dispossess people of their homes and that Sheriff
Stanek is the agent for this violation. (Pls.’ Mem. in Opp’n to Defs.’ Am. Mot. to
Dismiss at 26.) Plaintiffs also allege that Defendants have violated their rights to due
process under the Minnesota Constitution.
In Guidarelli v. Lazaretti, 223 N.W.2d 890, 892 (Minn. 1975), the Minnesota
Supreme Court affirmed the constitutionality of Minnesota’s foreclosure by
advertisement statute, Minn. Stat. § 580. 223 N.W.2d at 892 (noting that the statutory
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scheme allows for 4 weeks’ notice before sale, permits the mortgagor to redeem within
6 months or 1 year, and does not deprive mortgagor of the use and possession of property
prior to the foreclosure sale). Plaintiffs claim that they do not allege that foreclosure by
advertisement, by itself, violates Plaintiffs’ due process rights; but rather, that the
foreclosures in this case are irregular and, because of that irregularity, violate due
process. Plaintiffs, however, have not alleged any facts that would show that Sheriff
Stanek deviated from the statutory procedures or otherwise acted improperly or
negligently. Therefore, Plaintiffs’ due process claim against Sheriff Stanek necessarily
fails.3
Because there is no reasonable basis supporting Plaintiffs’ claim against Sheriff
Stanek, the Court concludes that Plaintiffs’ joinder of Sheriff Stanek in this action was
fraudulent. Therefore, Sheriff Stanek’s citizenship is disregarded in the Court’s diversity
jurisdiction analysis. Absent Sheriff Stanek, the parties in this action are completely
diverse.4 Thus, the Court concludes that it has diversity jurisdiction over this action
pursuant to 28 U.S.C. § 1332.

3

To the extent that Plaintiffs original Complaint states a claim against Sheriff
Stanek for alleged federal constitutional and § 1983 claims based on Sheriff Stanek’s
involvement in the foreclosure by advertisement process, those allegations would
similarly fail. See, e.g., Hayek v. City of St. Paul, 488 F.3d 1049, 1054 (8th Cir. 2007)
(explaining that under § 1983, government officials are entitled to dismissal if the alleged
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person should have known).
4

According to the allegations in Plaintiffs’ original and amended Complaints, all of
the Plaintiffs are Minnesota residents and none of the Bank Defendants are Minnesota
(Footnote Continued on Next Page)

8

Because the Court has subject matter jurisdiction over this action, the Court denies
Plaintiffs’ motion to remand.
II.

Motions to Dismiss
In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court assumes all

facts in the complaint to be true and construes all reasonable inferences from those facts
in the light most favorable to the complainant. Morton v. Becker, 793 F.2d 185, 187 (8th
Cir. 1986). In doing so, however, a court need not accept as true wholly conclusory
allegations, Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir.
1999), or legal conclusions drawn by the pleader from the facts alleged. Westcott v. City
of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). A court may consider the complaint,
matters of public record, orders, materials embraced by the complaint, and exhibits
attached to the complaint in deciding a motion to dismiss under Rule 12(b)(6). Porous
Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).
To survive a motion to dismiss, a complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
545 (2007). Although a complaint need not contain “detailed factual allegations,” it must
contain facts with enough specificity “to raise a right to relief above the speculative
(Footnote Continued From Previous Page)
entities or have their principal places of business in Minnesota. (Compl. ¶¶ 1, 20-42;
Am. Compl. ¶¶ 1, 20-42.) Plaintiffs’ and the Bank Defendants’ diversity is supported by
affidavits submitted by the Bank Defendants. (Aff. of Richard Anderson ¶ 2; Aff. of
Devra Lindgren ¶¶ 2-6.) In addition, there is no dispute that the amount in controversy
exceeds $75,000.

9

level.” Id. at 555. As the United States Supreme Court recently reiterated, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,”
will not pass muster under Twombly. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(citing Twombly, 550 U.S. at 555). In sum, this standard “calls for enough fact[s] to raise
a reasonable expectation that discovery will reveal evidence of [the claim].” Twombly,
550 U.S. at 556.
A.

The Sheriff Stanek’s Motion to Dismiss

Upon careful review of the Amended Complaint, the Court discerns no factual or
legal basis for any claim asserted against Sheriff Stanek. First, as explained above,
Plaintiffs’ Amended Complaint fails to state a due process claim against Sheriff Stanek.
Further, none of Plaintiffs’ remaining state-law claims are directed against Sheriff
Stanek. Even if any of those claims were directed at Sheriff Stanek, Plaintiffs fail to
specify or plead any act or failure to act by Sheriff Stanek or the sheriff’s office that
would support any of the remaining state-law claims.
Plaintiffs do not dispute the merits of Sheriff Stanek’s motion to dismiss. Instead
they argue only that Sheriff Stanek’s memorandum in support of his motion to dismiss
was untimely and should not be considered.
Because it is apparent to the Court that there is no legal or factual basis for a claim
against Sheriff Stanek, the Court grants Sheriff Stanek’s motion to dismiss.
B.

Bank Defendants’ Motion
1.

Standing

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The Bank Defendants argue that Plaintiffs failed to allege sufficient facts to
demonstrate that they have standing to seek the relief requested because (1) they do not
allege that their mortgages have been foreclosed upon, or if so, that the redemption period
remains unexpired; (2) they do not allege the current status of their loans; and (3) any
purported damage to Plaintiffs is not attributable to the Bank Defendants, but rather is
based on Plaintiffs’ failure to comply with their loan obligations.
To have standing under Article III of the Constitution, a plaintiff must allege (1) a
concrete injury in fact, (2) that is fairly traceable to the challenged action, and (3) that is
likely to be redressed by the relief sought. See Lujan v. Defenders of Wildlife, 504 U.S.
555, 560–61 (1992). In this action, Plaintiffs allege that the Bank Defendants are using
invalid liens to dispossess Plaintiffs of their homes. (Am. Comp. ¶¶ 45-63.) In their
Amended Complaint, Plaintiffs allege generally that each Plaintiff executed an original
promissory note and a mortgage relative to their respective properties in Minnesota.
With respect to each property, Plaintiffs attach a legal description.5 Plaintiffs further
allege generally that the Bank Defendants have published Notices of Foreclosure
indicating that they are entitled to foreclose on Plaintiffs’ homes. (Am. Compl. ¶ 69.)
Plaintiffs, however, do not allege any additional facts with respect to each
Plaintiff’s respective mortgage or loan status. For example, Plaintiffs do not allege when
the Notices of Foreclosure were published or when the alleged foreclosure sales are

5

The legal descriptions were actually attached as exhibits to the original Complaint,
but are referenced in the Amended Complaint.

11

scheduled to occur. Nor do Plaintiffs allege facts with respect to whether any of the
mortgages have already been foreclosed upon and, if so, whether the redemption period
has expired. The failure to allege additional specific facts regarding the status of each
loan and foreclosure period is fatal to Plaintiffs’ claims against the Bank Defendants
because it evidences a lack of standing. Without more detailed factual allegations,
Plaintiffs cannot demonstrate an injury in fact that is likely to be redressed by the relief
sought from the Court.6
Plaintiffs’ failure to allege sufficient details with respect to each mortgage and the
status of each loan is highlighted by evidence that has been submitted via affidavit in
relation to the pending motion to dismiss.7 For example, Plaintiffs submitted documents
related to Plaintiff Richard Proctor’s mortgage in opposition to the Bank Defendants’
motion to dismiss. Among these documents is what Plaintiffs claim to be a true and
correct copy of Plaintiff Proctor’s Sheriff’s Certificate of Sale and Foreclosure Record,
which states that Plaintiff Richard Proctor’s property was sold at public auction on
6

The Court does not hold that it is necessary for Plaintiffs to actually have lost their
homes in order to have standing. In their opposition, Plaintiffs argue that their injury is
concrete, actual, and imminent because their loans are being foreclosed upon. Plaintiffs’
Amended Complaint, however, only contains a general allegation that the Bank
Defendants have published notices of foreclosure. The complete dearth of specifics with
respect to each contested loan and the status of any related foreclosure proceedings
makes it impossible for the Court to ascertain whether a particular Plaintiff has standing
to assert claims against the Bank Defendants.
7

The Court may consider the complaint, matters of public record, orders, materials
embraced by the complaint, and exhibits attached to the complaint in deciding a motion
to dismiss under Rule 12(b)(6). Porous Media Corp., 186 F.3d at 1079.

12

March 5, 2010. (Aff. of William B. Butler ¶ 3, Ex. 6.)8 In addition, the Bank Defendants
claim that the properties belonging to Plaintiffs Jorge and Julia Cervera, Jeffrey Cox,
Donald and Nathan Houck, and Thane and Vicki Traux were also sold at sheriff
foreclosure sales on March 30, 2010, June 4, 2010, June 4, 2010, and May 27, 2010,
respectively. (Aff. of Jonathan Gershon ¶¶ 5, 6, 8, 14 & Exs. D, E, G, M.)
While Plaintiffs’ Amended Complaint is silent on the issue, it appears that these
plaintiffs failed to attempt to redeem after their properties were sold through foreclosure
sales. Plaintiffs’ Amended Complaint is also silent as to whether any of the above
redemption periods were tolled, whether the parties agreed to extend the redemption
period, or whether any of these plaintiffs otherwise preserved their right of redemption. 9
8

The Sheriff’s Certificate of Sale in the record is not signed. However, that it is not
signed does not affect the Court’s decision in this matter. Instead, it underscores the need
for more detailed information in the Amended Complaint as to the status of the contested
loans and mortgages.
9

A sheriff’s certificate of sale is prima facie evidence that a foreclosure is valid.
Every sheriff’s certificate of sale made under a power to sell contained in a
mortgage shall be prima facie evidence that all the requirements of law in
that behalf have been complied with, and prima facie evidence of title in fee
thereunder in the purchaser at such sale, the purchaser’s heirs or assigns,
after the time for redemption therefrom has expired.

Minn. Stat. § 580.19. In addition, Minn. Stat. § 580.23 provides the method by which a
mortgagor may redeem a property after foreclosure. In most cases, the property must be
redeemed within six months of the foreclosure sale. Id. § 580.23, subd. 1(a). The period
to redeem may be extended in certain circumstances, such as by agreement of the parties.
See Twenty Assocs. v. First Nat’l Bank & Trust Co., 273 N.W. 696, 697, 700 (Minn.
1937) (by agreement of the parties). The period to redeem may also be preserved. See,
e.g., Minn. Stat. § 580.28.

13

Thus, it is impossible for the Court to discern whether the Plaintiffs whose properties
may have already been sold have a right to relief. See Stein v. Chase Home Fin.,
No. 09-1995, 2010 WL 4736828, at *6 (D. Minn. Aug. 13, 2010) (holding at the
summary judgment stage that a plaintiff could not challenge the validity of a foreclosure
because the challenge was raised after the expiration of the redemption period).
As to the remaining Plaintiffs, for whom there is no information as to the current
status of the Plaintiffs’ loans or pending or past foreclosure proceedings, the Court cannot
determine whether there is a viable controversy between the parties, let alone one that can
be redressed by the relief sought. Plaintiffs argue that if they receive a favorable decision
by this Court—namely a determination that the Bank Defendants’ mortgages are invalid
and a decision to quiet title—Plaintiffs will not lose their respective homes through
foreclosure. However, if those homes have already been lost through foreclosure (which
appears to be the case with at least some properties and is unclear for others), Plaintiffs
fail to explain how the relief sought can redress their alleged injuries.
For the reasons stated above, the Court concludes that Plaintiffs’ Amended
Complaint lacks sufficient factual allegations to demonstrate that Plaintiffs have standing
to pursue their causes of action. Accordingly, the Court dismisses Plaintiffs’ Amended
Complaint without prejudice.10

10

The Bank Defendants also argue that Plaintiffs cannot demonstrate that any
threatened injury (i.e., the loss of their homes through foreclosure) is attributable to the
Bank Defendants, rather than the result of Plaintiffs’ failure to comply with their loan
(Footnote Continued on Next Page)

14

2.

Rule 8 of the Federal Rules of Civil Procedure

The Bank Defendants also argue that Plaintiffs’ Amended Complaint is a “kitchen
sink” pleading and fails under Rule 8. Under Rule 8, a complaint must include “a short
and plain statement of the claim showing that the pleader is entitled to relief.”11 Fed. R.
Civ. P. 8(a)(2). While the Rule 8 pleading standard does not require “detailed factual
allegations,” it does demand “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Iqbal, 129 S. Ct. at 1949. A complaint will not suffice if it
“tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting
Twombly, 550 U.S. at 557).
Plaintiffs’ Amended Complaint asserts fourteen causes of action involving
fourteen different mortgage loans against nine separate Bank Defendants. Plaintiffs
assert each of the causes of action against the Defendants generally, but do not otherwise
specify which claims are asserted against any particular defendant, or which specific
claims each Plaintiff is asserting. Thus, the Bank Defendants, and the Court, are left to
guess which Plaintiffs are asserting which claims against which Defendants. The Court
concludes that such pleading is inadequate and that Rule 8 requires greater specificity

(Footnote Continued From Previous Page)
obligations. The Court declines to reach the issue of whether the purported lack of
causation evidences a lack of standing here.
11

Claims for fraud and mistake are governed by Rule 9(b) of the Federal Rules of
Civil Procedure.

15

than that found in Plaintiffs’ Amended Complaint. See, e.g., Liggens v. Morris, 749 F.
Supp. 967, 971 (D. Minn. 1990). Therefore, should Plaintiffs choose to re-file this
action with more detailed factual allegations so as to address the standing issue
discussed above, Plaintiffs must address the Amended Complaint’s inadequacies under
Rule 8.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1.

Plaintiffs’ Motion to Remand to State Court (Doc. No. [17]) is DENIED.

2.

Bank Defendants’ Amended Motion to Dismiss (Doc. No. [7]) is

GRANTED.
3.

Sheriff Stanek’s Motion to Dismiss (Doc. No. [10]) is GRANTED.

4.

Plaintiffs’ Amended Complaint (Doc. No. [6]), as it is asserted against

Sheriff Stanek, is DISMISSED WITH PREJUDICE.
5.

Plaintiffs’ Amended Complaint (Doc. No. [6]), as it is asserted against the

Bank Defendants, is DISMISSED WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: May 17, 2011

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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