Harris v. Chase Bank, N.A., et al

Filing 19

ORDER: IT IS ORDERED THAT:1.Defendants Seterus and FNMAs Motion to Dismiss [Docket No. 2] is GRANTED.2.Chase Defendants Motion to Dismiss [Docket No. 12] is GRANTED.3.In view of the Plaintiffs failure to respond, the hearing scheduled for June 7, 2012 is CANCELLED.LET JUDGMENT BE ENTERED ACCORDINGLY.(Written Opinion). Signed by Judge Joan N. Ericksen on May 30, 2012. (slf)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Tracy Harris,
Plaintiff,
v.

Civil No. 12-669 (JNE/AJB)
ORDER

Chase Bank USA, N.A.; JP Morgan Chase
Bank, N.A.; Chase Home Finance, LLC;
Lender Business Processing Service; and
Federal National Mortgage Association,
Defendants.
This is a mortgage foreclosure case. The Complaint in this action contains claims in the
nature of “show me the note” and private causes of action under the Home Affordable Mortgage
Program (“HAMP”). Tracy Harris brought this action against Chase Bank USA, N.A., JP
Morgan Chase Bank, N.A., Chase Home Finance, LLC (collectively, “Chase Defendants”),
Lender Business Processing Service (“Seterus”)1, and Federal National Mortgage Association
(“FNMA”) in state court. Invoking subject-matter jurisdiction on the basis of diversity of
citizenship and 12 U.S.C. § 1723a(a) (2006), Seterus and FNMA removed the action from state
court on March 15, 2012; the Chase Defendants consented to removal. On March 26, 2012, this
Court ordered Seterus and FNMA to file an Amended Notice of Removal that properly alleged
the citizenship of all parties. The Amended Notice of Removal was filed on March 31, 2012,
and the Court finds that it has jurisdiction over this matter under 28 U.S.C. § 1332(a). The
Defendants now move to dismiss the action under Rule 12(b)(6) of the Federal Rules of Civil

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The Notice of Removal and Amended Notice of Removal state that the Complaint
incorrectly identified IBM Lender Business Process Services, Inc., now known as Seterus, Inc.,
as Lender Business Processing Service.
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Procedure. There are currently two motions to dismiss before the Court—one filed by
Defendants Seterus and FNMA, and the other filed by the Chase Defendants.
Harris’s brief in response to Defendants Seterus and FNMA’s Motion to Dismiss was due
on April 12, 2012, and the brief in response to the Chase Defendants’ Motion to Dismiss was due
on May 16, 2012. Harris filed no response to either Motion, and the time for responding has
long passed. Because the Court’s own review of the allegations supports Defendants’ assertions
that the Complaint is insufficiently pled and fails to state a cause of action, and for the reasons
more fully set forth in Defendants Seterus and FNMA’s Memorandum supporting their Motion
to Dismiss, the Motion will be granted with respect to all Defendants.
One additional matter deserves clarification. The removed action was Hennepin County
Case No. 27-cv-12-39. To the extent that Harris attempted to amend the Complaint by serving,
but not filing, an Amended Complaint on three of the five defendants prior to removal, the
proposed amendment is disregarded. In Minnesota, a state court action may be commenced by
serving—but not filing—a complaint. Minn. R. Civ. P. 3.01. This is colloquially referred to as
“pocket service” because a plaintiff may serve one or more defendants and keep the complaint
“in his pocket” rather than making a public filing. However, it is this Court’s judgment that once
a case is open in the state court, the action cannot be commenced again with the service of a
nonpublic document. Once a court file is open, any subsequent papers that are required to be
served must also be filed with the court within a reasonable time after service. See Minn. R. Civ.
P. 5.04. Such papers must also be served upon each of the parties. Minn. R. Civ. P. 5.01. The
purported amendment was not filed in either state or federal court, was not attached to the Notice
of Removal in this Court, and also was not served on two of the five defendants. In any event,

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the purported Amended Complaint would also be inadequate, as explained in the Chase
Defendants’ Memorandum in support of their Motion to Dismiss.
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1. Defendants Seterus and FNMA’s Motion to Dismiss [Docket No. 2] is GRANTED.
2. Chase Defendants’ Motion to Dismiss [Docket No. 12] is GRANTED.
3. In view of the Plaintiff’s failure to respond, the hearing scheduled for June 7, 2012 is
CANCELLED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: May 30, 2012
s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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