Davis v. JP Morgan Chase Bank, National Association et al

Filing 11

ORDER granting 7 Motion for Summary Judgment; denying without prejudice 9 Motion to Dismiss; plaintiff to show cause for failure to serve process within 14 days from date of entry of this ORDER Signed by Honorable David C. Bramlette, III on 3/25/2014 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
GEDDIETH E. DAVIS

PLAINTIFF

VS.

CIVIL ACTION NO. 5:13-cv-41(DCB)(MTP)

JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION; LINDSEY McBRIDE;
FIRST MORTGAGE COMPANY; RENA
SCHMIDT, D/B/A CENTURY 21 RIVER
CITIES REALTY; RENA SCHMIDT;
NATIONWIDE TRUSTEE SERVICES, INC.;
STEPHANIE FONTENO; and JOHN AND
JANE DOES 1-99

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the Court on defendant JPMorgan Chase
Bank, N.A. (“Chase”)’s Motion for Summary Judgment (docket entry 7)
and

Motion

to

Dismiss

(docket

entry

9).

Having

carefully

considered the motions, to which no responses have been filed, and
being fully advised in the premises, the Court finds as follows:
On

February

11,

2013,

the

plaintiff

Geddieth

E.

Davis

(“Davis”) filed suit in Adams County Circuit Court against the
defendants

seeking

damages

for

fraudulent

inducement,

fraud,

misrepresentation, fraud in the procurement, breach of fiduciary
duty, breach of contract, breach of the covenant of good faith and
fair dealing - tortious interference, wanton gross negligence,
wrongful

foreclosure,

and

private

nuisance

-

malice,

all

in

connection with the purchase, financing, and foreclosure of a home.
The state court suit was removed to this Court on March 21, 2013.
In its motion for summary judgment, Chase shows that the home

was purchased in March of 2004, that the purchase was financed by
First Mortgage Company, and that Davis defaulted on the note in
2011.

On November 2, 2011, the trustee instituted foreclosure

proceedings, and the property was sold to defendant Chase on
December 1, 2011.

The plaintiff has asserted two types of claims

in this action: (1) those associated with the origination of the
loan in 2004, and (2) those involving the 2011 foreclosure.
The plaintiff’s loan closing took place on March 2, 2004.
Because this action was not commenced until nine years later, all
of the plaintiff’s claims relating to the origination of the loan
are time-barred. See Miss. Code Ann. § 15-1-49 (three-year statute
of limitations for tort and breach of contract claims).
The plaintiff’s claims involving the foreclosure consist of:
(1) fraud and misrepresentation, (2) breach of fiduciary duty, (3)
breach of contract, (4) negligence, (5) wrongful foreclosure, and
(6) private nuisance - malice.
Fraudulent

misrepresentation

must

be

related

to

past

or

presently existing facts, not future conduct. Spragins v. Sunburst
Bank, 605 So.2d 777, 781 (Miss. 1992).

A party must also state

with particularity the circumstances constituting fraud, and the
failure to do so requires “dismissal on the pleadings for failure
to state a claim.”

Southland Securities Corp. v. Inspire Ins.

Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004). The particulars
of

a

misrepresentation

claim

must

2

likewise

be

stated

with

particularity.

Grissom v. Liberty Mutual Fire Ins. Co., 678 F.3d

397, 403 (5th Cir. 2012).
particulars

of

her

The plaintiff fails to allege any of the
fraud

and

misrepresentation

claims.

Furthermore, the terms of her loan including interest rate and
repayment terms, as well as specific compensation First Mortgage
Company was to receive, were fully disclosed in the documents
signed

by

the

plaintiff.

Thus,

the

plaintiff

cannot

have

reasonably relied on any oral representations.
The plaintiff’s breach of fiduciary duty claim fails because
she has not shown a fiduciary relationship with Chase.

The

Mississippi Supreme Court has never held that the relationship
between a mortgagor and a mortgagee is a fiduciary one.

Hopewell

Enterprises, Inc. v. Trustmark National Bank, 680 So.2d 812, 816
(Miss. 1996).

Nor did Chase have a contractual relationship with

the plaintiff; therefore, her breach of contract and breach of
implied covenant of good faith and fair dealing claims fail as a
matter of law. See Austin Firefighters Relief & Retirement Fund v.
Brown, 760 F.Supp.2d 662, 676 (S.D. Miss. 2010); Baldwin v. Laurel
Ford Lincoln-Mercury, Inc., 32 F.Supp.2d 894, 899 (S.D. Miss.
1998); BC’s Heating & Air and Sheet Metal Works, Inc. v. Vermeer
Mfg. Co., 2012 WL 642304, at *7 (S.D. Miss. Feb. 27, 2012).
Likewise, the plaintiff has not offered any proof to establish
any tortious interference with any contractual relationship she had
with any other party.

She offers no evidence of her alleged

3

contractual

relationship

with

First

Mortgage,

nor

does

she

establish that such contract “would have been performed but for the
alleged interference of” Chase.

See Southern General Agency, Inc.

v. ACCC Ins. Co., 2011 WL 1343160, at *2 (S.D. Miss. March 31,
2011).
Relying

on

her

previous

allegations,

the

charges Chase with “wanton gross negligence.”

plaintiff

also

However, under

Mississippi law, “[n]egligence can only proceed from a duty imposed
by contract, or by the statutes of the state, or by well-defined
public policy. A claim sounding in negligence fails as a matter of
law unless the plaintiff was owed a legal duty.”

Anderson v.

Litton Loan Servicing, LP, 2010 WL 445593, at *4 (S.D. Miss. Feb.
1,

2010).

A

mortgage

is

“simply

an

arms

length

business

transaction involving a normal debtor-creditor relationship” under
which “the loan agreement fixes the contractual term.”
Enterprises, 680 So.2d at 817.

Hopewell

Thus, the parties are free to

pursue any contractual or statutory rights, including the exercise
of any “lawful remedies against a borrower in default.”

Temple-

Inland Mortg. Corp. v. Jones, 749 So.2d 1161, 1169 (Miss. App.
1999).
The terms of the relationship between the plaintiff and Chase
were fixed by the terms of the loan.
So.2d at 817.

Hopewell Enterprises, 680

The plaintiff defaulted by failing to make the

required payments in a timely manner. Chase’s Exhibits “A” at ¶ 3,

4

and “B” at ¶ 1.

Because of the plaintiff’s default, Chase was free

to foreclose, and owed no further duty to the plaintiff. Anderson,
2010 WL 445593, at *4; Rosemont Gardens Funeral Chapel-Cemetery,
Inc. v. Trustmark National Bank, 330 F.Supp.2d 801, 811 (S.D. Miss.
2004); Teeuwissen v. JPMorgan Chase Bank, N.A., 2011 WL 5593164, at
*8 (S.D. Miss. Nov. 17, 2011).
The plaintiff’s claim for “wrongful foreclosure” is based on
her allegation that the foreclosure sale was conducted without
legal right or authority.
title state.

Mississippi is an “intermediate theory”

See O’Neal Steel, Inc. v. EB Inc., 186 F.3d 638, 643-

44 (5th Cir. 1999); Anderson v. Kimbrough, 741 So.2d 1041, 1047-48
(Miss. App. 1999).

As a result, “the borrower maintains title to

the property” after executing the mortgage, “however, once the loan
goes into default, the mortgagee immediately receives title and the
right to possess the property.”

Millette, 186 F.3d at 643 n.10.

“The subsequent foreclosure is the mechanism by which the trustee
procedurally

perfects

the

interest

which

is

automatically

transferred upon default.

Indeed, the transfer of title to the

trustee

not

upon

default

is

affected

even

if

a

subsequent

foreclosure sale is set aside due to procedural irregularities.”
Martin v. USDA Rural Housing Service, 276 B.R. 552, 556 (Bankr.
N.D. Miss. 2001).

The undisputed evidence confirms that there was

no wrongful foreclosure.
The plaintiff was required to make all the monthly payments

5

required by her loan.

See Chase’s Exhibit “B” at ¶ 1.

However,

the plaintiff concedes that by October 2010 she was in default.
See Chase’s Exhibit “Q” at ¶ 95.

The substitute trustee’s deed

further confirmed the plaintiff’s “default” under the deed of trust
at the time of the December 1, 2011 sale.

See Chandler v. Bank of

Brooksville, 178 So. 797, 799 (Miss. 1938)(“A deed made by a
trustee will be presumed, prima facie, to have been made after
compliance with its requirements of notice, of time, place, and
terms of sale”).

As a result, Chase “was free to foreclose on the

security” and cannot be guilty of “bad faith.”

See Rosemont

Gardens, 330 F.Supp.2d at 811; Peoples Bank & Trust Co. v. L & T
Developers, Inc., 434 So.2d 699, 708 (Miss. 1983).

Procedurally,

state law requires that notice of a non-judicial foreclosure be
posted at the courthouse and published for three consecutive weeks
before the sale.

Miss. Code Ann. § 89-1-55.

The substitute

trustee’s deed establishes that notice was posted at the Adams
County Courthouse on November 8, 2011, and published in the Natchez
Democrat for three consecutive weeks beginning on November 10,
2011.

See Chase’s Exhibit “P.”

Thus, all of the substantive and

procedural foreclosure requirements were met.
The

plaintiff

also

has

no

foreclosure based upon her default.

standing

to

challenge

the

By failing to make all of her

contractually required payments, title to the property passed to
Chase “immediately” upon her default.

6

See Millette, 186 F.3d at

643 n.10.

Because she had “no possessory interest in the Property

at the time of the foreclosure,” the plaintiff does “not have
standing to pursue claims for wrongful foreclosure” in this action.
Patton v. American Home Mortgage Servicing, Inc., 2013 WL 1310560,
at * 3 (S.D. Miss. March 28, 2013).
Finally, the plaintiff attempts to raise a claim for private
nuisance

and

“malice.”

Specifically,

she

contends

that

the

defendants “caused an evasion upon [her] private use and enjoyment”
of the subject property.

See Chase’s Exhibit “Q” at ¶ 186.

“A private nuisance is a nontrespassory invasion of another’s
interest in the use and enjoyment of his property.”

Biglane v.

Under the Hill Corp., 949 So.2d 9, 14 (Miss. 2007)(citing Leaf
River Forest Products, Inc. v. Ferguson, 662 So.2d 648, 662 (Miss.
1995)). Under this doctrine, “[o]ne landowner may not use his land
so as to unreasonably annoy, inconvenience, or harm others.”

Id.

Thus, excessive noise, threatening animals, and air pollution from
adjacent landowners can support a potential private nuisance cause
of action.

Biglane, 949 So.2d at 11; Williams v. King, 860 So.2d

847, 851-52 (Miss. App. 2003); Vicksburg Chemical Co. v. Thornell,
355 So.2d 299, 300 (Miss. 1978).
In this instance, the plaintiff no longer has any right to
“use and enjoyment” of the subject property following her default.
See Biglane, 949 So.2d at 14.

At that point, title to the subject

property “immediately” passed to Chase.

7

See Millette, 186 F.3d at

643 n.10. Moreover, there is no allegation that Chase has used the
land “so as to unreasonably annoy, inconvenience, or harm” the
plaintiff’s use of “her” land.

See Biglane, 949 So.2d at 14.

Instead, this action involves only a single tract of land owned by
Chase, in which the plaintiff no longer has any interest.

Thus,

this claim also fails as a matter of law.
The Court therefore finds that Chase is entitled to judgment
as matter of law with respect to all of the plaintiff’s origination
and

foreclosure-related

claims.

Accordingly,

Chase

shall

be

dismissed from this action with prejudice.
Chase also moves for dismissal of the remaining defendants for
insufficient service of process pursuant to Fed.R.Civ.P. 12(b)(5).
None of the remaining defendants has been served with process,
despite the fact that this suit originated in the Circuit Court of
Adams County more than a year ago.
Mississippi Rule of Civil Procedure 4(h) provides:
If a service of the summons and complaint is not made
upon a defendant within 120 days after the filing of the
complaint and the party on whose behalf such service was
required cannot show good cause why such service was not
made within that period, the action shall be dismissed as
to that defendant without prejudice upon the court’s own
initiative with notice to such party or upon motion.
Miss.R.Civ.P. 4(h)(emphasis added).
Federal Rule of Civil Procedure 4(m) provides:
If service of the summons and complaint is not made upon
a defendant within 120 days after the filing of the
complaint, the court, upon motion or on its own
initiative after notice to the plaintiff, shall dismiss
8

the action without prejudice as to that defendant or
direct that service be effected within a specified time;
provided that if the plaintiff shows good cause for the
failure, the court shall extend the time for service for
an appropriate period. ....
Fed.R.Civ.P. 4(m)(emphasis added).
Since the plaintiff’s 120 days to serve process had not
expired before removal to federal court, Federal Rule 4(m) applies.
See Robinson v. Roxy Investments, L.P., 2008 WL 3165834, at *1
(S.D. Miss. Aug. 1, 2008)(citing Hanna v. Plummer, 380 U.S. 460,
473-74

(1965),

and

Fed.R.Civ.P.

81

(providing

that

“[t]hese

[federal] rules apply to civil actions removed to the United States
District Courts....”)).
This Court therefore may extend the plaintiff’s time for
service of process to a date which would permit the plaintiff to
cure any alleged insufficiencies in service of process.
2008 WL 3165834, at *1.

Robinson,

See also Henderson v. U.S., 517 U.S. 654

(1996); Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996)(“We agree
with the majority of circuits that have found that the plain
language of rule 4(m) broadens a district court’s discretion by
allowing it to extend the time for service even when plaintiff
fails to show good cause.”); 28 U.S.C. § 1448 (“In all cases
removed from any State court to any district court of the United
States in which any one or more of the defendants has not been
served with process or in which the service has not been perfected
prior

to

removal,

or

in

which

9

process

served

proves

to

be

defective, such process or service may be completed or new process
issued in the same manner as in cases originally filed in such
district court.”).
The plaintiff has not responded to Chase’s motion and has not
shown “good cause.”

However, even if “the plaintiff lacks good

cause, the court has discretion to extend the time for service.”
Thrasher v. City of Amarillo, 709 F.3d 509, 511 (5th Cir. 2013).
Such relief may be warranted when, for example, the “applicable
statute of limitations would bar the refiled action, or if the
defendant is evading service or conceals a defect in attempted
service.”

Fed.R.Civ.P. 4(m) advisory committee notes (1993).

In this case, the Court finds it unlikely that the plaintiff
will be able to show “good cause.”

Nevertheless, the Court shall

deny Chase’s motion without prejudice, and allow the plaintiff
fourteen (14) days to show “good cause” for her failure to serve
the defendants with process, or any other circumstances explaining
the delay.

Failure to do so could result in dismissal of this

action.
Accordingly,
IT IS HEREBY ORDERED that defendant JPMorgan Chase Bank,
N.A.’s Motion for Summary Judgment (docket entry 7) is GRANTED, and
said defendant is dismissed from this action with prejudice;
FURTHER ORDERED that defendant JPMorgan Chase Bank, N.A.’s
Motion to Dismiss the remaining defendants for insufficient service

10

of process (docket entry 9) is DENIED WITHOUT PREJUDICE.

The

plaintiff shall have fourteen (14) days from the entry of this
Memorandum Opinion and Order to show cause for her failure to serve
the defendants with process, or any other circumstances explaining
the delay.

Failure to do so could result in dismissal of this

action.
SO ORDERED, this the 25th day of March, 2014.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

11