Clark v. Deutsche Bank National Trust Company et al
Filing
61
OPINION AND ORDER denying 39 Motion for Partial Summary Judgment; granting in part and denying in part 17 Motion to Dismiss. All case management deadlines are suspended for a period of 30 days from the date of this Order. Signed by District Judge Keith Starrett on 7/23/13 (scp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
LOYD E. CLARK, JR.
PLAINTIFF
V.
CIVIL ACTION NO. 2:12-cv-231-KS-MTP
DEUTSCHE BANK NATIONAL TRUST COMPANY, as
TRUSTEE OF THE INDYMAC IMSC MORTGAGE LOAN
TRUST 2007-AR1, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-AR1 under the Pooling
and Servicing Agreement dated, June 1, 2007;
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC.; and JOHN AND JANE DOES 1-10
DEFENDANTS
OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss [17] of the Defendants
Deutsche Bank National Trust Company, etc. (“Deutsche Bank”) and Mortgage
Electronic Registration Systems, Inc. (“MERS”) and the Plaintiff Loyd E. Clark, Jr.’s
Motion for Partial Summary Judgment [39]. For the reasons stated below, the Motion to
Dismiss [17] will be granted in part and denied in part and the Motion for Partial
Summary Judgment [39] will be denied.
BACKGROUND
On November 16, 2012, Plaintiff filed suit against Deutsche Bank, MERS and
Shapiro & Massey in the Circuit Court of the Second Judicial District of Jones County,
Mississippi, asserting claims of wrongful foreclosure, slander of title and private
nuisance. (See Compl. [1-2].) Plaintiff’s allegations relate to his purported ownership of
two pieces of real property. One parcel of land is located at 168 Highway 15 North,
Laurel, Mississippi, 39443 (the “Jasper County Property”). The other is located on
County Barn Road, Laurel, Mississippi, 39440 (the “Jones County Property”).
On November 18, 2006, Plaintiff and Jodie D. Clark (who were married at that
time, but are now divorced) executed a Deed of Trust [17-6] in favor of Quicken Loans,
Inc., as the “Lender”, in order to secure a loan in the amount of $152,000.00. MERS is
identified as the “beneficiary” under the Deed of Trust. There is a discrepancy in the
Deed of Trust [17-6] as to the property pledged as collateral for the loan. The Deed of
Trust lists the street address for the Jasper County Property, but contains a legal
description pertaining to the Jones County Property. The Deed of Trust was filed in the
Jones County land records on December 6, 2006. A Mississippi Assignment of Deed of
Trust [17-10], indicating that MERS had assigned “all beneficial interest under” the
instrument to Deutsche Bank, was filed in the Jones County land records on November
15, 2011. A Substituted Trustees Deed [17-12] was filed in the Jones County land
records on March 28, 2012. This instrument provides that J. Gary Massey (of Shapiro &
Massey, L.L.C.), acting as the Substituted Trustee, sold land containing a legal
description pertaining to the Jones County Property to Deutsche Bank via a non-judicial
foreclosure sale on March 14, 2012, following the Plaintiff and Jodie Clark’s default
under the Deed of Trust [17-6].
The Complaint acknowledges Plaintiff’s failure to make certain mortgage
payments and default.1 Nonetheless, Plaintiff contends that the “default did not entitle
the Defendants to conduct a non-judicial foreclosure sale under Mississippi law.”
(Compl. [1-2] at ¶ 32.) Plaintiff posits that the proper entity did not conduct the subject
1
No mention of Plaintiff’s ex-wife, Jodie Clark, is made in the Complaint [1-2].
However, documents of public record attached to the Complaint and filed by the
Defendants indicate that Ms. Clark has at least as much of an interest in the subject
properties as the Plaintiff.
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foreclosure sale and that he was evicted “from his Jasper County Property even though
the collateral description for the second loan is the Jones County Property.” (Compl. [12] at ¶¶ 14, 32.) It is further alleged that the subject foreclosure was conducted in
violation of a host of Mississippi statutes; that the filing of instruments in the Jones
County land records by the Defendants disparaged Plaintiff’s title to the Jones County
Property and Jasper County Property; and that the Defendants tortiously caused an
invasion of the Plaintiff’s private use and enjoyment of the Jasper County Property.
Plaintiff seeks actual damages, punitive damages and attorney’s fees in relief.
On December 13, 2012, Deutsche Bank and MERS removed the proceeding to
this Court on the basis of diversity of citizenship jurisdiction under Title 28 U.S.C. §
1332. (See Notice of Removal [1].) On December 14, 2012, Shapiro & Massey filed its
Joinder and Consent to Notice of Removal [3]. Also on December 14, Plaintiff moved
for the remand of this action to state court. (See Mot. to Remand [4].) Plaintiff argued
that complete diversity of citizenship was lacking because he and Shapiro & Massey are
citizens of Mississippi. On April 5, 2013, the Court entered its Opinion and Order
Denying Remand [28], finding that Shapiro & Massey had been improperly joined and
dismissing it from the litigation without prejudice.
Currently pending is MERS and Deutsche Bank’s joint request for dismissal
pursuant to Federal Rule of Civil Procedure 12(b)(1), (6) and (7). (See Mot. to Dismiss
[17].) Further, Plaintiff seeks partial summary judgment under Federal Rule of Civil
Procedure 56. (See Mot. for Part. SJ [39].) These motions have been fully briefed and
the Court is ready to rule.
DISCUSSION
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MERS and Deutsche Bank’s Motion to Dismiss [17]
Defendants’ bases for dismissal can be divided into three subject areas. First,
Defendants argue that the Court lacks subject matter jurisdiction due to Plaintiff’s lack of
standing. See Fed. R. Civ. P. 12(b)(1). Next, Defendants make various arguments to
the effect that Plaintiff has failed to state any plausible claim for relief. See Fed. R. Civ.
P. 12(b)(6). Finally, Defendants assert that the Plaintiff failed to join Jodi Clark, a
necessary and indispensable party. See Fed. R. Civ. P. 12(b)(7). For the reasons
stated below, the Court finds that dismissal is not warranted pursuant to Rule 12(b)(1).
The Court also finds that Jodie Clark is a necessary party, but Defendants have failed to
show that she cannot be joined in this action. As a result, the Court will deny
Defendants’ request for dismissal under Rule 12(b)(7) and order that Ms. Clark be
joined to the litigation. Defendants’ remaining arguments in favor of dismissal may be
reurged once all the proper parties are before the Court.
1. Whether Dismissal Is Required Based on Plaintiff’s Lack of Standing
“Article III of the Constitution confines the federal courts to adjudicating actual
‘cases’ and ‘controversies.’” Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct. 3315, 82 L.
Ed. 2d 556 (1984). The case-or-controversy requirement reflects the separation of
powers principle, which is central to the foundation of the federal government, and limits
federal judicial power via several doctrines, such as standing, mootness and ripeness.
See id. Constitutional (or Article III) standing requires that a plaintiff “allege an injury in
fact that is fairly traceable to the defendant’s conduct and likely to be redressed by a
favorable ruling.” Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n.2
(5th Cir. 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct.
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2130, 119 L. Ed. 2d 351 (1992)). Prudential (or judicially imposed) standing
encompasses several principles, including “the general prohibition on a litigant’s raising
another person’s legal rights . . . .” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1,
12, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004) (citations omitted). A dismissal for lack of
Article III standing should be granted under Rule 12(b)(1), while a dismissal based on
prudential standing should be made under Rule 12(b)(6). FNC, Inc., 634 F.3d at 795
n.2. In considering dismissal under either Rule, the Court may rely on documents of
public record or documents attached to the complaint. See, e.g., Fin. Acquisition
Partners LP v. Blackwell, 440 F.3d 278, 286 (5th Cir. 2006) (dismissal under Rule
12(b)(6)); Voisin’s Oyster House, Inc. v. Guidry, 799 F.2d 183, 189 n.5 (5th Cir 1986)
(dismissal for lack of subject matter jurisdiction).
Defendants argue that the Plaintiff lost all legal interest in the Jones County
Property as a result of his divorce from Jodie Clark, and thus, he lacks standing to
assert the claims alleged in the Complaint. A Property Settlement Agreement [17-14]
incorporated by reference into a Judgement of Divorce [17-13] filed in the Chancery
Court of Jones County indicates that Ms. Clark “will Iive in Jones Co. at 266 County
Barn Rd.” and that the Plaintiff’s name “will be removed from property and mortgage in
Jones Co.” Plaintiff does not dispute that he lacks an ownership interest in the Jones
County Property as a result of his divorce from Jodie Clark. Plaintiff contests
Defendants’ standing argument on the basis that his claims concern the Jasper County
Property and he “is not pursuing claims regarding the Jones County Property.” (Pl.’s
Mem. Resp. to Mot. to Dismiss [31] at pp. 2, 9.)
Plaintiff’s position ignores his slander of title claim, under which he alleges that
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Defendants’ filing of instruments in the Jones County land records disparaged his “title
to the home located at 168 Highway 15 North, Laurel, Mississippi 39443 [the Jasper
County Property] and County Barn Road, Laurel, MS 39440 [the Jones County
Property].” (Compl. [1-2] at ¶ 74) (emphasis added). Thus, it would seem at first glance
that the Complaint partially violates “the general prohibition on a litigant’s raising another
person’s legal rights . . . .” Allen, 468 U.S. at 751. Upon closer inspection, however, the
Court finds no claim actually violating this rule of prudential standing.
Plaintiff’s divorce from Jodie Clark, apparently resulting in his loss of ownership
of the Jones County Property, was made effective July 12, 2012. (See Judg. of Divorce
[17-13].) All of the instruments purportedly disparaging Plaintiff’s title to the Jones
County Property were filed in the Jones County land records prior to that date. (See
Miss. Assign. of Deed of Trust [17-10]; Substitution of Trustee [17-11]; Substituted
Trustees Deed [17-12].) The Court is unaware of any rule of law that prohibits a party
from seeking damages relating to and incurred during the ownership of property solely
because such ownership terminates prior to litigation. Cf. Keys v. Chicago Title Ins.
Co., No. 3:11cv617, 2012 WL 4510471, at *3, 7 (S.D. Miss. Sept. 28, 2012) (rejecting
the argument that the plaintiff lacked standing to bring suit against a title insurance
company since the loss claim arose prior to the plaintiff conveying her interest in the
property). Even if the Plaintiff is attempting to assert a damage claim rightfully
belonging to his ex-wife, dismissal would be premature. Jodie Clark, as the real party in
interest, should be given an opportunity to join in the litigation and have her say on the
matter. See Arthur W. Tifford, PA v. Tandem Energy Corp., 562 F.3d 699, 707 (5th Cir.
2009) (“The absence of other potential litigants, even a real party in interest, can be
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excused or cured.”) (citing Fed. R. Civ. P. 17(a)(3)). Therefore, Defendants’ prudential
standing ground for dismissal is not availing.
Defendants also contend that all of Plaintiff’s claims against MERS are moot due
to the November 1, 2011 assignment of the Deed of Trust [17-6] from MERS to
Deutsche Bank. (See Miss. Assign. of Deed of Trust [17-10].) “‘Mootness is the
doctrine of standing in a time frame. The requisite personal interest that must exist at
the commencement of litigation (standing) must continue throughout its existence
(mootness).’” La. Envtl. Action Network v. City of Baton Rouge, 677 F.3d 737, 744 (5th
Cir. 2012) (quoting Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 524-25 (5th
Cir. 2008)). A federal court lacks the constitutional authority to resolve issues that have
been rendered moot. Id.
The Fifth Circuit’s decision in City of Baton Rouge disposes of Defendants’
request for dismissal of MERS based on the doctrine of mootness. In City of Baton
Rouge, the district court dismissed a citizen suit brought under the Clean Water Act on
the ground that a 2002 consent decree mooted the plaintiff’s claims. 677 F.3d at 739.
The Fifth Circuit reversed. Id. “[A]s a general rule, any set of circumstances that
eliminates actual controversy after the commencement of a lawsuit renders that action
moot.” Id. at 744. The 2002 consent decree was entered approximately eight years
prior to the filing of the plaintiff’s citizen suit and neither party argued that events
occurring subsequent to the initiation of the action rendered it moot. Id. at 745. “Thus,
the district court erred in examining whether the 2002 consent decree, and the ongoing
enforcement of its conditions, mooted LEAN’s citizen suit.” Id.
This suit was filed on November 16, 2012, approximately one year after MERS
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assigned the subject Deed of Trust to Deutsche Bank. Consequently, under City of
Baton Rouge, the Defendants’ reliance on an event occurring prior to the initiation of
this action for mootness-based dismissal is misplaced. Defendants’ citation to Judge
Ozerden’s decision in Black v. PrimeLending Co., No. 1:10cv433, 2011 WL 5563217
(S.D. Miss. Nov. 15, 2011), does not alter the Court’s opinion. Unlike the presuit
assignment of the Deed of Trust at issue here, PrimeLending assigned Black’s Deed of
Trust to Citimortgage approximately five months subsequent to the filing of that action.
See Black, 2011 WL 5563217, at *1.
Accepting “as true all material allegations of the complaint and . . . constru[ing]
the complaint in favor of the complaining party”, the Court determines that dismissal is
not warranted under Rule 12(b)(1) for lack of Article III standing. Ass’n of Am.
Physicians & Surgeons, Inc. v. Tex. Med. Bd., 627 F.3d 547, 550 (5th Cir. 2010)
(citation omitted). Furthermore, Defendants’ applications for dismissal based on
prudential standing and mootness are refused for the above-stated reasons.
2. Whether Dismissal Is Required Due to Plaintiff’s Failure to Join Jodie Clark
Federal Rule of Civil Procedure 12(b)(7) authorizes dismissal for “failure to join a
party under Rule 19.” Rule 19 provides for the joinder of persons in order to secure the
fair and complete disposition of all matters central to a lawsuit. See Pulitzer-Polster v.
Pulitzer, 784 F.2d 1305, 1308 (5th Cir. 1986). A Rule 19 analysis involves two inquiries.
See HS Res., Inc. v. Wingate, 327 F.3d 432, 439 (5th Cir. 2003). First, the district court
must consider whether a person should be joined as a party under Rule 19(a). Id. “If
joinder is warranted, then the person will be brought into the lawsuit. But if such joinder
would destroy the court’s jurisdiction, then the court must determine under Rule 19(b)
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whether to press forward without the person or to dismiss the litigation.” Id.
A party must be joined under Rule 19(a) if:
(A) in that person's absence, the court cannot accord complete relief among
existing parties; or
(B) that person claims an interest relating to the subject of the action and is
so situated that disposing of the action in the person's absence may:
(i) as a practical matter impair or impede the person's ability to protect the
interest; or
(ii) leave an existing party subject to a substantial risk of incurring double,
multiple, or otherwise inconsistent obligations because of the interest.
Fed. R. Civ. P. 19(a)(1). “It is to be stressed that the criteria set forth in Rule 19 are not
to be applied mechanically nor are they to be used to override compelling substantive
interests.” Schutten v. Shell Oil Co., 421 F.2d 869, 873 (5th Cir. 1970). “The inquiry
contemplated by Rule 19(a) is a practical one, and is addressed to the sound discretion
of the court.” R-Delight Holding LLC v. Anders, 246 F.R.D. 496, 499 (D. Md. 2007)
(citation omitted); see also 7 Charles Alan Wright et al., Federal Practice and Procedure
§ 1604 (3d ed.) (providing that there is no precise formula for deciding whether joinder
is required under Rule 19(a) and that determinations under the Rule are heavily
influenced by the particulars of individual cases). In a diversity action, such as this one,
state law is relevant in determining whether an outside party has a sufficient interest in a
controversy to require his or her joinder. See, e.g., Dore Energy Corp. v. Prospective
Inv. & Trading Co., 570 F.3d 219, 231 (5th Cir. 2009); Shell W. E & P Inc. v. Dupont,
152 F.R.D. 82, 85 (M.D. La. 1993).
Determining Jodie Clark’s specific interest in this matter is hampered by
discrepancies in the Deed of Trust [17-6] and conflicting positions taken by the Plaintiff.
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As noted above, the Deed of Trust contains a legal description pertaining to the Jones
County Property and a street address for the Jasper County Property. Furthermore, the
Deed of Trust lists a Tax ID Number of 176-35-00-023-00 and Parcel ID Number of
0165-21-000-011.00. A separate Deed of Trust [17-9] executed by the Plaintiff and
Jodie Clark in 2002 appears to pertain to the Jasper County Property and lists a Parcel
ID Number of 0165 21 000 001.00. Plaintiff’s divergent positions as to whether both the
Jasper County and Jones County Properties are at issue in this action are noted above.
Further confusing is the allegation in the Complaint that the Jones County Property
served as collateral for Plaintiff’s loan,2 compared with the Plaintiff seeking partial
summary judgment on the basis that the foreclosure sale is null and void because legal
instruments relating to the foreclosure were not filed in the land records of Jasper
County. (See Pl.’s Mot. for Part. SJ [39] at ¶¶ 4-5.)3 Ultimately, the Court is uncertain
whether the Plaintiff and Jodie Clark intended to pledge the Jasper County Property or
Jones County Property as collateral for the subject loan, and, as a result, whether
Jasper or Jones County was the appropriate locale for foreclosure proceedings.
2
(See Compl. [1-2] at ¶¶ 10-11.)
3
Certain representations made by Deutsche Bank further cast doubt on the
contours of this property dispute. Defendants’ joint briefing in support of dismissal takes
the position that the Jones County Property served as collateral for Plaintiff’s loan. (See
Mem. in Supp. of Mot. to Dismiss [18] at pp. 2, 4, 14-15.) Yet, Deutsche Bank’s Reply
Brief posits that the Plaintiff and Jodie Clark “lost title to the Jasper County property
once he went into default.” (Reply Brief [42] at p. 3.) Deutsche Bank also
acknowledges, “upon information and belief, that there may be a legal description error
in the Jasper County’s DOT, and that they may need to file an action in the Jasper
County Chancery Court to reform said description at the conclusion of this litigation.”
(Reply Brief [42] at p. 7 n.2.)
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Notwithstanding the foregoing, it is clear that Jodie Clark has at least as much of
an interest in this dispute as the Plaintiff. Plaintiff and Jodie Clark are described as joint
tenants “with full rights of survivorship” in both a Warranty Deed [17-1] appearing to
apply to the Jones County Property and a Warranty Deed [17-8] seemingly applicable to
the Jasper County Property. Moreover, the Plaintiff and Jodie Clark are identified as coborrowers in every Deed of Trust the parties have filed in this case. (See Doc. Nos. [173], [17-4], [17-5], [17-6], [17-7], [17-9].)
The Mississippi Supreme Court has held “that no proper and complete
adjudication of this dispute involving real property could be made in absence of the
persons owning interests in the property affected.” Aldridge v. Aldridge, 527 So. 2d 96,
98 (Miss. 1988) (finding that the trial court erred in proceeding on a suit to impose a lien
against real property without the presence of the property owners and the mortgagee);
see also Ladner v. Quality Exploration Co., 505 So. 2d 288, 291-92 (Miss. 1987)
(affirming dismissal of a claim seeking damages for trespass and conversion due to
plaintiffs’ failure to join all mineral interest holders); Armstrong v. Canady, 35 So. 138
(Miss. 1903) (applying the general rule that “[t]enants in common must join in actions ex
delicto and for injuries to their real property” in an action seeking statutory penalties for
a timber trespass). There are several analogous federal authorities. See, e.g., Dupont,
152 F.R.D. at 85 (finding that co-owners of real property were persons who must be
joined under Rule 19(a) in an action seeking a declaration of an oil company’s right
under a mineral lease to conduct operations on the property); Weaver v. Mid-Century
Ins. Co. of Los Angeles, Cal., 690 F. Supp. 845, 846 (E.D. Mo. 1988) (determining that
plaintiff’s ex-husband was a necessary party to a quiet title action since he remained
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liable on a promissory note encumbering real property); cf. Brackin Tie, Lumber & Chip
Co. v. McLarty Farms, Inc., 704 F.2d 585, 586-87 (11th Cir. 1983) (affirming the district
court’s ruling that a co-lessee was a necessary party, but not indispensable to the
lawsuit).
Under the weight of the preceding legal opinions, the Court finds that Jodie Clark
must be joined in this action pursuant to Rule 19(a). Her apparent joint ownership of the
Jasper County Property with the Plaintiff, and perhaps sole ownership of the Jones
County Property,4 may result in the Defendants being exposed to multiple or
inconsistent obligations if she were to bring her own suit relating to the subject
foreclosure. See Fed. R. Civ. P. 19(a)(1)(B)(ii). Such a result would also mean that
“complete relief” cannot be afforded to each of the “existing parties” in this cause in her
absence. Fed. R. Civ. P. 19(a)(1)(A). Alternatively, Ms. Clark’s ability to protect her
interests in a separate action may be impaired or impeded if she is found to be in privity
with the Plaintiff due to her execution of the aforementioned legal instruments. See
Fed. R. Civ. P. 19(a)(1)(B)(i).
Defendants have failed to show that Ms. Clark’s joinder is not feasible, i.e., that
her being made a party would destroy the Court’s subject matter jurisdiction or that she
is not subject to service of process. Accordingly, it is unnecessary for the Court to
decide whether to dismiss the action or to allow it to proceed without Ms. Clark under
Rule 19(b). Cf. In re Apple iPhone 3G & 3GS MMS Mktg. & Sales Practices Litig., 864
F. Supp. 2d 451, 456 (E.D. La. 2012) (“Because joinder of AT & T clearly was feasible
4
(See Property Settlement Agreement [17-4].)
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before Plaintiffs voluntarily dismissed it, there is no need to engage in analysis under
Rule 19(b).”). Instead, the Court will order that Ms. Clark be made a party to this action
pursuant to Rule 19(a)(2).5
Defendants’ remaining bases for dismissal are denied without prejudice.
Resolution of these merits-based defenses would be premature in the absence of Jodie
Clark given her interest in this matter. In addition, the lack of clarity regarding the
specific property or properties at issue in this cause makes deciding these defenses
under Rule 12(b)(6) unworkable. Development of the underlying facts through
discovery and subsequent clarification of the parties’ positions through summary
judgment briefing should assist with the just and expeditious determination of these
defenses. Cf. Harris v. City of Senatobia, No. 2:08cv37, 2009 WL 1766908, at *2 (N.D.
Miss. June 18, 2009) (denying defendants’ Rule 12(b)(6) dismissal motions and finding
that their defenses would be best resolved under Rule 56 after more light had been
shed on the facts underlying the plaintiff’s claims).
Plaintiff’s Motion for Partial Summary Judgment [39]
Plaintiff requests summary judgment on his claim for wrongful foreclosure.
Plaintiff contends that there is no genuine issue as to any material fact and that he is
entitled to summary judgment as a matter of law on the following ground: “Defendants’
failure to file a substitution of trustee of record in the office of the chancery clerk of the
5
“If a person has not been joined as required, the court must order that the
person be made a party. A person who refuses to join as a plaintiff may be made either
a defendant or, in a proper case, an involuntary plaintiff.” Fed. R. Civ. P. 19(a)(2).
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county where the land is situated (i.e. Jasper County) violates Mississippi Code § 89-545 and the foreclosure sale is void.” (Pl.’s Mem. in Supp. of Mot. for Part. SJ [38] at p.
5.)6 Plaintiff’s request for summary judgment is not well taken.
The party seeking summary judgment bears the initial “burden of demonstrating
the absence of a genuine issue of material fact.” Cannata v. Catholic Diocese of Austin,
700 F.3d 169, 172 (5th Cir. 2012) (citation omitted). Plaintiff has failed to meet this
burden since the documents submitted by him in support of summary judgment
evidence a fact issue as to the location of the property sold at foreclosure. Plaintiff
focuses on the Deed of Trust [17-6] and Mississippi Assignment of Deed of Trust [1710] both listing a parcel number that matches the parcel number on a purported Jasper
County Tax Assessor Report (“Tax Report”) [39-3]. The Tax Report indicates that the
real property consists of five (5) acres. Plaintiff’s myopic view overlooks the fact that the
Deed of Trust [17-6], Mississippi Assignment of Deed of Trust [17-10], Substitution of
Trustee [17-11] and Substituted Trustees Deed [17-12] all contain a legal description for
one (1) acre of land located in Jones County. Plaintiff’s position on summary judgment
that the property made the subject of the Deed of Trust [17-6] is the Jasper County
Property also conflicts with his initial position that the Jones County Property served as
collateral for the loan. (See Compl. [1-2] at ¶¶ 10-11, 14.) The Court is unable to hold
6
Section 89-5-45 of the Mississippi Code states in pertinent part: “Sales of land
made under deeds of trust by substituted trustees shall not convey the interest of the
grantor or grantors therein, but shall be absolutely null and void, both at law and in
equity, unless the substitution shall appear of record in the office of the chancery clerk
of the county where the land is situated . . . .”
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as a matter of law that the substitution of trustee should have been filed in Jasper
County or Jones County in the face of this convoluted record. Accordingly, Plaintiff’s
request for summary judgment must be denied.
CONCLUSION
For the foregoing reasons:
IT IS ORDERED AND ADJUDGED that MERS and Deutsche Bank’s Motion to
Dismiss [17] is granted in part and denied in part. The motion is granted to the extent
the Court concludes that the Plaintiff has failed to join a necessary party under Fed. R.
Civ. P. 19(a) and that within thirty (30) days of the entry of this Order the Plaintiff shall
either: (1) join Jodie Clark to this action through the filing of an amended complaint; or
(2) advise the Court in writing why Jodie Clark cannot be joined (in which case the Court
will determine whether Ms. Clark should be made an involuntary plaintiff or whether
dismissal is appropriate pursuant to Rules 12(b)(7) and 19(b)). The motion is denied in
all other respects.
IT IS FURTHER ORDERED AND ADJUDGED that all case management
deadlines are suspended for a period of thirty (30) days from the date of this Order.
IT IS FURTHER ORDERED AND ADJUDGED that Plaintiff’s Motion for Partial
Summary Judgment [39] is denied.
SO ORDERED AND ADJUDGED this the 23rd day of July, 2013.
s/ Keith Starrett
UNITED STATES DISTRICT JUDGE
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