Tasic et al v. Wells Fargo Bank, N.A. et al

Filing 26

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs motion to remand is denied. (Doc. No. 6). Signed by District Judge Audrey G. Fleissig on 6/20/2013. (KSH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MIRSAD TASIC and SEVALA TASIC,
Plaintiffs,
v.
WELLS FARGO BANK, N.A. and
HEARTLAND BANK,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 4:13CV00840 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Plaintiffs Mirsad Tasic and Sevala
Tasic to remand the case to the Missouri state court in which it was filed. For the reasons
set forth below, this motion shall be denied.
BACKGROUND
Plaintiffs, husband and wife and citizens of Missouri, filed this complaint in
Missouri state court on March 20, 2013. They alleged that a September 12, 2008
promissory note between Mirsad Tasic and Defendant Heartland Bank (“Heartland”) for
$96,740.00 (“the Note”), and a Deed of Trust for Plaintiffs’ residence that secured the
Note, were unenforceable. The Note, which is attached as an exhibit to Plaintiffs’ state
court complaint, required a monthly payment of $641.82, plus interest of 7% per annum,
with a maturity date of October 1, 2038. Mirsad Tasic’s name on the signature line was
hand-printed in capital letters. On the bottom of the Note is an undated stamped

endorsement of the Note to Defendant Wells Fargo Bank, N.A. (“Wells Fargo”), with the
purported signature of Pearl Dilg, a vice president of Heartland.
The Deed of Trust, also attached to the original complaint, also shows Mirsad
Tasic’s name on the signature line as hand-printed in capital letters. Each of the eight
pages of this document is initialed, “M.T.” The Deed of Trust includes a notary’s signed
statement that Mirsad Tasic personally appeared before her and, pursuant to a waiver of
marital rights by Sevala Tasic, executed the Deed of Trust.
In the Complaint, Plaintiffs asserted that the Note and Deed of Trust were void
because Mirsad Tasic’s name on the Note “was printed on the signature line . . . and thus
. . . was not signed by Plaintiff Mirsad Tasic”; Mirsad Tasic did not sign his name before
the notary whose name appears on the Deed of Trust; the notary’s signature is that of
another person; and Sevala Tasic did not sign the Note, Deed of Trust, or the marital
waiver. The original complaint includes the allegation that Sevala Tasic “cannot sign her
name.”
Plaintiffs further asserted that the endorsement of the Note by Heartland to Wells
Fargo was improper because it was “unaccompanied by affidavit of a competent witness
as proof that the person signing said notes was Vice President of said bank . . . .”; and
because Mirsad Tasic had not signed the Note in the first place. (Doc. No. 4 at 15-16.)
The complaint was in four counts: Counts I through III sought declaratory
judgment against Wells Fargo that the Note and lien on Plaintiffs’ residence were void.
In Count IV, Plaintiffs sought to quiet title to their residence against both Defendants.

2

For the purposes of diversity jurisdiction, Wells Fargo is a citizen of South Dakota and
Heartland is a citizen of Missouri.
On May 2, 2013, Wells Fargo, with the consent of Heartland, removed the case
from state court. Wells Fargo maintained that the Note was properly endorsed to Wells
Fargo, and that there was no basis to bring a quiet title claim against Heartland which has
no cognizable interest in the property in question. Thus, Wells Fargo asserted, Heartland
was improperly joined and should not be considered for diversity jurisdiction. On the
same day, Heartland filed a motion to dismiss for failure to state a claim, arguing that the
Note had been validly assigned and disclaiming any interest in the matter.
On May 5, 2013, Plaintiffs filed a First Amended Complaint, echoing the
allegations in the original complaint, and adding Heartland as a Defendant to the counts
for declaratory judgment that the Note, Deed of Trust, and marital waiver were void.
Plaintiffs add the allegations that the endorsement of the Note to Wells Fargo was
without any effect because Dilg was not a vice president of Heartland and the
endorsement was not authorized by the by-laws or resolution of “said Bank.” In addition,
the First Amended Complaint includes a count for damages against Heartland for
employing the notary mentioned above, and knowing about all the alleged signature
deficiencies on the documents; and a count for damages against Wells Fargo.
Also on May 5, 2013, Plaintiffs filed the motion to remand now under
consideration. They argue that they must seek to quiet title against both Defendants
because the endorsement of the Note from Heartland to Wells Fargo was invalid in that it
lacked a third-party affidavit and, therefore, Heartland still has an interest in the property.
3

Plaintiffs assert that because the Deed of Trust is recorded with the St. Louis County
Recorder of Deeds, but the Note “and assignment thereof” are not, “there is nothing in
the land records to show that Heartland Bank has assigned its interest in said deed of trust
and is no longer interested in said deed of trust.” (Doc. No. 7 at 8.) Plaintiffs argue that
the claims in the First Amended Complaint should be considered for the purposes of
diversity jurisdiction.
Heartland opposes the motion to remand, maintaining that only the complaint at
the time of removal is relevant to the jurisdictional question and that at the time of
removal Heartland was not a proper party to the suit. Heartland argues that it is not a
necessary party to Plaintiffs’ quiet title claim because of the endorsement of the Note to
Wells Fargo. Thus, according to Wells Fargo, Heartland was fraudulently joined. Wells
Fargo argues further that the result remains the same even under the First Amended
Complaint.
In support of its position, Heartland submits a copy of an Assignment of the Deed
of Trust from Heartland’s nominee to Wells Fargo, as recorded with the St. Louis County
Recorder of Deeds on November 11, 2011; the affidavit of Pearl Dilg attesting that she
signed the endorsement on the Note as a vice president of Heartland; and the affidavit of
the notary whose name appears on the Deed of Trust and marital waiver, attesting that the
signature on those documents was her official signature, and that it was her practice to

4

require borrowers in the process of acquiring loans to be in front of her when they sign
the documents she notorizes. (Doc. No. 19-1, 19-2, 19-3.)1
An exhibit to the notary’s affidavit is a waiver of marital rights with regard to the
property, with Sevala Tasic’s name hand-printed on the signature line in capital and
lower case letters. Another exhibit to the notary’s affidavit is a signature card dated
September 12, 2008, showing Mirsad Tasic’s name typed and hand-printed in capital
letters. The card is notorized by the same notary.
DISCUSSION
For this Court to have jurisdiction over this matter there must be complete
diversity of citizenship of the parties, as well as an amount in controversy greater than
$75,000. See 28 U.S.C. § 1332. Here, there is no assertion that the amount in
controversy has not been met. For purposes of diversity of citizenship, “a plaintiff cannot
defeat a defendant’s right of removal by fraudulently joining a defendant who has no real
connection with the controversy.” Donner v. Alcoa, Inc., 709 F.3d 694, 697 (8th Cir.
2013) (citations omitted). “A defendant seeking removal [must] prove that the plaintiff's
claim against the diversity-destroying defendant has no reasonable basis in fact and law.”
Knudson v. Sys. Painters, Inc., 634 F.3d 968, 980 (8th Cir. 2011) (citation omitted).
“However, joinder is not fraudulent where there is arguably a reasonable basis for
predicting that the state law might impose liability based upon the facts involved.” Id.;

1

It is proper for the Court to consider materials outside the pleadings in resolving a
fraudulent joinder issue on a motion to remand. See In re Genetically Modified Rice
Litig., 618 F. Supp. 2d 1047, 1052 (E.D. Mo. 2009) (considering affidavits and other
evidence).
5

see also Hatcher v. McJunkin Red Man Corp., No. 4:12-CV-1887 CAS, 2013 WL
1037815, at *4 (E.D. Mo. Mar. 14, 2013).
When a plaintiff seeks to remand a case to state court on the theory that the case
was improperly removed due to fraudulent joinder, this Court considers the state of the
case at the time of removal. See Kent v. Bank of Am., N.A., No. 11–2315 (JRT/LIB),
2012 WL 3582717, at *2 n.2 (D. Minn. Aug. 17, 2012) (“For the purposes of fraudulent
joinder, the Court need only consider the claims brought against [Defendant] in the
original—not the amended—complaint because fraudulent joinder exists if ‘on the face
of plaintiff’s state court pleadings, no cause of action lies against the resident
defendant.’”) (quoting Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir. 1983)).2
As noted above, in Plaintiffs’ original complaint, Heartland is only implicated as a
Defendant in Plaintiffs claim to quiet title for the property in question. The Court
concludes that there is no reasonable basis for predicting that a Missouri court might find
merit to Plaintiff’s theory of why the assignment of the Note to Wells Fargo was void.
Third-party affidavits were not necessary for the endorsement of the Note. See Mo. Rev.
Stat. § 400.3-205(a) (applying the principals of § 400.3-110 to an endorsement by the

There is some conflicting authority on this point. See, e.g., Estates of Hope and Briney
v. Mr. Heater Corp., No. 08–cv–701–bbc, 2009 WL 1009793, at *3 (W.D. Wis. April 13,
2009) (holding that motion to amend should be considered). However, this Court agrees
with another court in this Circuit that “[s]witching the order of analysis would permit a
plaintiff faced with a meritorious fraudulent joinder argument to plead in the amended
complaint fewer facts than would be passable under Fed. R. Civ. P. 12(b)(6) and create a
colorable claim that compels remand.” Brinkman v. Bank of Am., N.A., ___ F. Supp. 2d
___, 2012 WL 3582928, at *9 n.5 (D. Minn. Aug. 12, 2012).
2

6

holder of a negotiable instrument); Mitchell v. Residential Funding Corp., 334 S.W.3d
477, 504 (Mo. Ct. App. 2010) (holding that a promissory note is a negotiable instrument).
Plaintiffs’ claim that the assignment was not valid because the Note was not
“signed” by Mirsad Tasic is equally baseless. The Court concludes that there was no
reasonable basis in fact and law to include Heartland as a Defendant in the original
complaint, and that thus, at the time of removal, there was complete diversity of
citizenship between the parties.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ motion to remand is denied. (Doc.
No. 6).

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 20th day of June, 2013.

7