Anderson v. Wells Fargo Bank, NA et al
Filing
85
ORDER denying Plaintiff's 74 Motion to Amend/Correct; and granting Defendants' 75 Motion to Dismiss. A separate Judgment shall be entered. Signed by District Judge Keith Starrett on August 4, 2016 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
EVA ANDERSON
PLAINTIFF
V.
CIVIL ACTION NO. 2:15-CV-88-KS-MTP
WELLS FARGO BANK, NA, et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
For the reasons below, the Court denies Plaintiff’s Motion to Amend [74] and
grants Defendant’s Motion to Dismiss. This case is closed.1
A.
Motion to Amend [74]
Plaintiff filed a Motion to Amend [74] her Complaint. She represents that the
proposed second amended complaint “maintains the counts and allegations against the
same defendants from the original complaint with the exception of” three “additional
defendants but accounts for significant factual and procedural developments that have
been discovered since the original complaint was filed.” She also alleges that the new
complaint includes “additional facts to show a long line of deception and fraud.”
1
On May 16, 2016, Plaintiff filed a Notice of Appeal [68] as to the Court’s
Order [67] denying her Motion for Reconsideration [57] and granting Defendant Citi
Residential Lending’s Motion for Judgment on the Pleadings [59]. Generally, a
notice of appeal divests this Court of jurisdiction. Winchester v. U.S. Attorney for the
S.D. of Tex., 68 F.3d 947, 949 (5th Cir. 1995). However, the Court may “take action
in aid of the appeal . . . .” Id. Assuming arguendo that the Court’s previous order
[67] constituted a final judgment from which Plaintiff may take an appeal, this
Court may still address the parties’ pending motions because its actions are “in aid
of the appeal.” Id.
Defendant opposes Plaintiff’s motion on various grounds.2
Rule 15 provides that “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave. The court should freely give leave when
justice so requires.” FED. R. CIV. P. 15(a)(2). The Court considers five factors when
addressing a motion for leave to amend: “1) undue delay, 2) bad faith or dilatory
motive, 3) repeated failure to cure deficiencies by previous amendments, 4) undue
prejudice to the opposing party, and 5) futility of the amendment.” Smith v. EMC
Corp., 393 F.3d 590, 595 (5th Cir. 2004). “A court must have a substantial reason to
deny a party’s request for leave to amend,” Stem v. Gomez, 813 F.3d 205, 215 (5th Cir.
2016), and the Court “should grant a pro se party every reasonable opportunity to
amend.” Pena v. United States, 157 F.3d 984, 987 n. 3 (5th Cir. 1998).
Among other reasons, Defendant argues that Plaintiff’s amendment would be
futile because her claims would still be subject to dismissal pursuant to Rule 12(b)(6).
The Court agrees. Although Plaintiff represented in her motion that the proposed
second amended complaint “accounts for significant factual . . . developments that have
been discovered since the original complaint was filed,” and that it contains “additional
facts to show a long line of deception and fraud,” the proposed second amended
complaint contains no new factual allegations. In fact, much of it [74-1] is copied
verbatim from Plaintiff’s first amended complaint [1-2].
2
Plaintiff filed the motion [74] on July 8, 2016. Defendant filed a timely
response [79, 80] on July 21, 2016. Accordingly, Plaintiff’s reply was due by August
1, 2016. FED. R. CIV. P. 6(a), (d); L.U.Civ.R. 7(b)(4). Plaintiff did not file a reply, and
her motion is ripe for review.
2
The only new material in the proposed second amended complaint are various
citations to and quotations from cases Plaintiff has cited throughout this litigation in
response to Defendants’ argument that Plaintiff lacks standing to challenge the
assignment of her note. This legal issue has already been addressed by the Court, and
Plaintiff’s proposed second amended complaint contains no new facts that would alter
the Court’s analysis. Accordingly, it would be subject to dismissal for the same reasons
provided in the Court’s prior opinions,3 and “[w]hen an amended complaint would still
fail to survive a Rule 12(b)(6) motion, it is not an abuse of discretion to deny” a motion
to amend. Stem, 813 F.3d at 216.
Plaintiff also seeks to add three new Defendants – Ocwen Loan Servicing,
Heritage Title, and HomEq Servicing Corporation. These Defendants were or should
have been known to Plaintiff prior to filing her original complaint over a year ago, as
they were identified in her loan documents. In fact, she has previously sued them to
challenge the validity of her mortgage note and/or deed of trust. See Anderson v.
Barclays Capital Real Estate, 136 So. 3d 1080 (Miss. Ct. App. 2013).
“Although Rule 15(a) does not impose a time limit for permissive amendment,
at some point, time delay on the part of a plaintiff can be procedurally fatal.” Smith,
393 F.3d at 595. “[T]he plaintiff bears the burden of showing the delay to be due to
oversight, inadvertence, or excusable neglect.” Id. Plaintiff made no attempt to explain
3
See Anderson v. Wells Fargo Bank, NA, No. 2:15-CV-88-KS-MTP, 2016 U.S.
Dist. LEXIS 51577 (S.D. Miss. Apr. 18, 2016); Anderson v. Wells Fargo Bank, NA,
No. 2:15-CV-88-KS-MTP, 2016 U.S. Dist. LEXIS 27110 (S.D. Miss. Mar. 3, 2016).
3
why she failed to include these defendants in her original complaint or first amended
complaint. Her vague references to “factual developments” and “additional facts” are
insufficient. She included no new factual allegations in her proposed second amended
complaint, much less facts specifically pertaining to the three new defendants.
Accordingly, the Court finds that she did not meet her burden of justifying the delay.
The Court also notes that amendment would be futile as to at least two of the
new defendants. The Mississippi Court of Appeals affirmed a trial court’s grant of
summary judgment as to HomEq Servicing and Heritage Title in Plaintiff’s previous
suit challenging her mortgage note. Anderson v. Barclays Capital Real Estate, 136 So.
3d 1080 (Miss. Ct. App. 2013) (affirming summary judgment in favor of HomEq
Servicing and Heritage Title as to Plaintiff’s suit challenging her mortgage note), cert.
denied, 145 So. 3d 674 (Miss. 2014). “Res judicata bars a second action between the
same parties on the same subject matter directly involved in the prior action.” EMC
Mortg. Corp. v. Carmichael, 17 So. 3d 1087, 1090 (Miss. 2009). Dismissal under Rule
12(b)(6) is appropriate where a claim is barred by the principle of res judicata, Stone
v. La. Dep’t of Revenue, 590 F. App’x 332, 335-36 (5th Cir. 2014), and “[w]hen an
amended complaint would still fail to survive a Rule 12(b)(6) motion, it is not an abuse
of discretion to deny the motion.” Stem, 813 F.3d at 216.
For all the reasons provided above, the Court finds that Plaintiff’s proposed
amendment would be futile, and that Plaintiff has unduly delayed seeking an
amendment. Accordingly, the Court denies Plaintiff’s Motion to Amend [74].
B.
Motion to Dismiss [75]
4
Defendant Wells Fargo Bank, N.A. – the last remaining Defendant in this case
– filed a Motion to Dismiss [75] pursuant to Rule 12(b)(6). Therein, Defendant asserted
various arguments in favor of dismissal.
First, Defendant presented the same argument addressed by the Court in its
previous rulings. Defendant argues that Plaintiff has no standing to challenge the
assignment of her note based on alleged violations of a pooling and servicing agreement
to which she was neither a party nor a third-party beneficiary. For the reasons
provided in prior opinions, the Court agrees. Anderson, 2016 U.S. Dist. LEXIS 51577
at *3-*4; Anderson, 2016 U.S. Dist. LEXIS 27110 at *3-*4. Plaintiff has no standing to
challenge the assignment of her mortgage based on alleged noncompliance with a
pooling and servicing agreement to which she was neither a party nor a third-party
beneficiary. The Court incorporates its prior rulings herein.
Upon an exceedingly liberal reading of the amended complaint, Plaintiff may
assert fraud claims against Defendant. “In alleging fraud . . . , a party must state with
particularity the circumstances constituting fraud or mistake.” FED. R. CIV. P. 9(b).
This rule requires Plaintiff to identify the “time, place, and contents of the false
representations, as well as the identity of the person making the representation, and
what that person obtained thereby.” Owens v. Jastrow, 789 F.3d 529, 535 (5th Cir.
2015). Plaintiff provided no particular or specific allegations regarding the
circumstances of the alleged fraud.4
4
Defendant also asserted a res judicata argument, but it is not necessary for
the Court to address it.
5
For these reasons, the Court finds that dismissal pursuant to Rule 12(b)(6) is
appropriate. The Court grants Defendant’s Motion to Dismiss [75].
C.
Conclusion
For the reasons provided above, the Court denies Plaintiff’s Motion to Amend
[74] and grants Defendant Wells Fargo’s Motion to Dismiss [75]. Wells Fargo was the
last remaining Defendant in this matter. Accordingly, this case is now closed.
SO ORDERED AND ADJUDGED this 4th day of August, 2016.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
6
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