Kaiser et al v. Federal Home Loan Mortgage Corporation et al
Filing
16
ORDER granting 5 Motion to Dismiss (Written Opinion). Signed by Senior Judge David S. Doty on 4/10/2014. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 13-2611(DSD/FLN)
Robert Kaiser, an individual,
and Karla Hill-Kaiser, an
individual,
Plaintiffs,
ORDER
v.
ABN AMRO Mortgage Group, Inc.,
a Delaware corporation,
CitiMortgage, Inc., a New York
corporation, Federal Home Loan
Mortgage Corporation, ABC
Corporation, and also all other
persons unknown claiming any
right, title, estate, interest,
or lien in the real estate
described in the complaint herein,
Defendants.
Erich J.S. Hartmann, Esq., Jesse H. Kibort, Esq. and
Daniels & Kibort, PLLC, 14225 Highway 55, Plymouth, MN
55447, counsel for plaintiffs.
Kevin T. Dobie, Esq., Gerald G. Workinger, Jr. and Usset,
Weingarden & Liebo, PLLP, 4500 Park Glen Road, Suite 300,
Minneapolis, MN 55416, counsel for defendants.
This matter is before the court upon the motion to dismiss by
defendants Federal Home Loan Mortgage Corporation (Freddie Mac),
CitiMortgage, Inc. (CitiMortgage) and ABN AMRO Mortgage Group, Inc.
(ABN) (collectively, defendants).
Based on a review of the file,
record and proceedings herein, and for the following reasons, the
court grants the motion.
BACKGROUND
This
mortgage
dispute
arises
out
of
the
foreclosure
on
property owned by plaintiffs Robert Kaiser and Karla Hill-Kaiser
(collectively, plaintiffs).
On September 29, 2003, plaintiffs and
ABN executed a note and mortgage for property located at 16908
Leyte Street N.E., Ham Lake, Minnesota.
Ver. Compl. ¶¶ 1, 8-9.
The mortgage was recorded by the Anoka County Recorder (Anoka
County) on September 30, 2003.
Weingarden Decl. Ex. B, at 9.
September 1, 2007, ABN merged into CitiMortgage.
On
See id. Ex. C, at
5. CitiMortgage filed a certificate of merger with Anoka County on
April 28, 2010.
Plaintiffs
See id. at 8.
defaulted
on
their
mortgage,
initiated non-judicial foreclosure proceedings.
CitiMortgage
purchased
foreclosure sale.
the
property
the
property
See id. Ex. F, at 2.
during
the
redemption
at
the
and
See id. Ex. D.
May
29,
2013,
Plaintiffs did not redeem
period,
and
conveyed the property to Freddie Mac on July 18, 2013.
G.
CitiMortgage
CitiMortgage
See id. Ex.
That conveyance was recorded with Anoka County on July 26,
2013.
See id.
On August 30, 2013, plaintiffs filed this action in Minnesota
court,
alleging
claims
for
violations
2
of
Minnesota
Statutes
§§ 580.02 and 580.04.1
Defendants timely removed and move to
dismiss.
DISCUSSION
I.
Standard of Review
To survive a motion to dismiss for failure to state a claim,
“a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(citations and internal quotation marks omitted).
facial
plausibility
when
the
plaintiff
[has
“A claim has
pleaded]
factual
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)).
Although a complaint need not
contain detailed factual allegations, it must raise a right to
relief above the speculative level.
See Twombly, 550 U.S. at 555.
“[L]abels and conclusions or a formulaic recitation of the elements
of a cause of action” are not sufficient to state a claim.
Iqbal,
129 S. Ct. at 1949 (citation and internal quotation marks omitted).
1
In addition, plaintiffs originally pleaded claims (1) for a
violation of Minnesota Statutes § 58.04, (2) for negligent and
constructive misrepresentation and (3) under Minnesota’s Private
Attorney General statute. Plaintiffs waived such claims at oral
argument. As a result, dismissal is warranted as to those claims.
3
The court does not consider matters outside the pleadings
under Rule 12(b)(6).
See Fed. R. Civ. P. 12(d).
The court,
however, may consider matters of public record and materials that
do not contradict the complaint, as well as materials that are
“necessarily embraced by the pleadings.” See Porous Media Corp. v.
Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (citations and
internal quotation
marks
omitted).
In
this case,
the
note,
mortgage documents, certificate of merger and recorded conveyances
are matters of public record and are properly considered.
II.
Minnesota Statutes § 580.02
In Minnesota, “any mortgage of real estate containing a power
of sale, upon default being made in any condition thereof, may be
foreclosed by advertisement.”
requirements
must
be
met
Minn. Stat. § 580.01.
before
a
party
may
Several
foreclose
by
advertisement, including that the mortgage and any assignments must
have been recorded.
Id. § 580.02.
Plaintiffs argue that the
foreclosure was invalid because there were unrecorded assignments
of the mortgage.
Specifically, plaintiffs allege that “upon
information and belief ... between the [m]ortgage [l]oan closing
and
the
[foreclosure],
[p]laintiffs’
[m]ortgage
numerous times to several different entities.”
was
assigned
Ver. Compl. ¶ 38.
Further, plaintiffs allege that “upon information and belief ...
4
ABN,
Citi[Mortgage],
and
Freddie
Mac,
failed
to
record
the
[m]ortgage each and every time the [m]ortgage was assigned.”
Id.
¶ 14.
Plaintiffs also argue that there is an unrecorded assignment,
as demonstrated by the discrepancy between the October 22, 2012,
notice of pendency, which lists ABN as the mortgagee, and the
October 29, 2012, notice of mortgage foreclosure sale, which lists
CitiMortgage as the mortgagee.
That argument is unavailing.
See Weingarden Decl. Exs. D-E.
The notice of pendency - though it
listed ABN as the mortgagee - was signed by CitiMortgage, “as
successor in interest by merger to ABN.”
Id. Ex. D, at 2.
Indeed,
as already explained, ABN merged into CitiMortgage in 2007, as
evidenced by the duly-filed certificate of merger.
at 8.
See id. Ex. C,
As a result, the difference between the two notices
identified by plaintiffs does not indicate the existence of an
unrecorded assignment.
Moreover, the additional allegations “upon information and
belief” fail, as they are entirely speculative, not adequately
pleaded under Iqbal and Twombly and wholly insufficient to state a
claim.
In other words, “the plaintiff[s’] pleadings, on their
face, have not provided anything to support their claim that the
defendants’ adverse claims are invalid, other than labels and
conclusions, based on speculation” that there were unrecorded
assignments.
Karnatcheva v. JPMorgan Chase Bank, N.A., 704 F.3d
5
545, 548 (8th Cir. 2013) (citations omitted), cert. denied 134 S.
Ct. 72 (2013). As a result, plaintiffs have not adequately pleaded
a claim under § 580.02, and dismissal of that claim is warranted.
III.
Minnesota Statutes § 580.04
Plaintiffs
§
580.04.
next
That
allege
section
a
claim
requires
under
that
Minnesota
each
Statutes
foreclosure
by
advertisement notice include “the name of the mortgagor, the
mortgagee, [and any] assignee of the mortgage.”
§ 580.04(1).
Minn. Stat.
Plaintiffs again allege that there were unrecorded
assignments and that the notice of foreclosure did not list any
assignees.
As already explained, however, plaintiffs have not
adequately pleaded any facts suggesting that there were unrecorded
assignments of the mortgage.
As a result, the § 580.04 claim also
fails, and dismissal is warranted.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that the
motion to dismiss [ECF No. 5] is granted.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:
April 10, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?