Thomas et al v. US Bank et al

Filing 27

ORDER holding (1) Entry of judgment of dismissal of all claims against all defendants will be withheld for twenty one (21) days; and (2) The Plaintiffs will be allowed fourteen (14) days from the date hereof to respond to the Motion to Dismiss with a meritorious argument. Signed by Jane M Virden on 12/11/2013. (lec)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION
EDDIE THOMAS, ET AL.
VS.

PLAINTIFFS
CIVIL ACTION NO.: 2:12-cv-121-MPM-JMV

US BANK, ET AL.

DEFENDANTS

ORDER
This matter comes before the court on Defendant US Bank’s Motion to Dismiss for
Failure to State a Claim [18]. Plaintiffs Eddie Thomas and Elizabeth Thomas, who assert
various alleged causes of action arising from the asserted wrongful foreclosure of their home,
have not responded in opposition. The court has considered the motion and finds it is well taken
for the reasons hereafter discussed.
First, as in Taylor v. Ocwen Loan Servicing, LLC, No. 2:12–CV–107–SA–JMV, 2013
WL 494076 at *4 (N.D. Miss. Feb. 7, 2013) and Smith v. Bank of America, N.A., No. 2:11-CV120–MPM–JMV, 2012 WL 4320845 at * 11 (N.D. Miss. Sep. 20, 2012) where the virtually
identical Complaint was used, the instant complaint identifies only non-cognizable or
implausible claims. “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,
556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A
court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor
of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009). But, the
court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556

U.S. at 678-79. A legally sufficient complaint must establish more than a “sheer possibility” that
the plaintiff's claim is true. Id. It need not contain detailed factual allegations, but it must go
beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action.
Twombly, 550 U.S. at 555. In other words, the face of the complaint must contain enough factual
matter to raise a reasonable expectation that discovery will reveal evidence of each element of
the plaintiff’s claim. Lormand, 565 F.3d at 255-57. If there are insufficient factual allegations to
raise a right to relief above the speculative level, the claim must be dismissed. Twombly, 550
U.S. at 555. For the same reasons articulated by the court in Smith and Taylor, the instant
complaint fails to state a cognizable claim.
Secondly, the borrowers here are judicially estopped from arguing the subject
promissory note is unenforceable, having twice reaffirmed it in their prior bankruptcy
proceeding. The first of these bankruptcies was initiated by a Chapter 7 petition on September
24, 1999. During that Chapter 7 proceeding, the Thomases specifically agreed to pay certain
arrearages owed on the subject mortgage. The second bankruptcy
Thomas only

as initiated by a hapter

hich as filed by

petition on August , 2004.

rs.

uring that

proceeding, Ms. Thomas again specifically acknowledged the validity of the subject debt and
agreed to pay it.
Thirdly, the borrowers have not served US Bank with process. On February 11, 2013, an
executed return was filed purporting to reflect service on US Bank. That return, however, was
served on another entity. Indeed, the return admits as much, stating it was served on a party by a
different name but at the same address. Significantly, the return lists as the relevant address as
one in Florida. But US Bank is a Delaware corporation with its principal place of business in

Minnesota. US Bank has not been served with process. Because this lawsuit was first filed on
November 5, 2013, the 120-day limitation for serving process has expired.
Finally, in vie of the Plaintiffs’ pro se status, the court ill instruct the court clerk to
withhold entry of this dismissal for twenty one (21) days from the date hereof, and the
Thomases will be allowed an additional fourteen (14) days from the date hereof to respond to the
Motion to Dismiss. Such a response should rebut the reasons for dismissal recognized in the
Smith and Taylor cases, copies of which are simultaneous herewith being provided to Plaintiffs.
Should the Plaintiffs elect to respond, the court will reconsider its findings in light of the
response. If the Plaintiffs do not respond with merit, this case will be dismissed at the
conclusion of the twenty one day period.
IT IS, THEREFORE, ORDERED:
(1) Entry of judgment of dismissal of all claims against all defendants will be
withheld for twenty one (21) days; and
(2) The Plaintiffs will be allowed fourteen (14) days from the date hereof to
respond to the Motion to Dismiss with a meritorious argument.
SO ORDERED, this the 11th day of December 2013.

/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE