McWilliams v. JPMorgan Chase Bank National Association et al

Filing 10

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the motion to dismiss filed by defendant J.P. Morgan Chase Bank National for failure to state a claim for relief [Doc. # 6 ] is denied without prejudice. Signed by District Judge Carol E. Jackson on 7/24/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
ROSCOE R. MCWILLIAMS, JR., et al.,
Plaintiffs,
vs.
J.P. MORGAN CHASE BANK, NATIONAL
ASSOCIATION, et al.,
Defendants.

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Case No. 4:14-CV-768 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion to dismiss filed by defendant J.P.
Morgan Chase Bank National Association (Chase Bank) for failure to state a claim for
relief. Plaintiffs have not filed a response and the time allowed for doing so has
expired.
I.

Background

On March 17, 2014, plaintiffs, Roscoe McWilliams, Jr. and Emma McWilliams,
filed this action in the Circuit Court for St. Louis County, Missouri, alleging wrongful
foreclosure (Count I) and injunctive relief (Count II).
According to the complaint, Mr. McWilliams executed a Deed of Trust for the
purchase of real property, legally known as Lot 9 of Parc Charlene, Plat 2. Chase Bank
is the holder of the note. In 2009, Chase Bank claimed that Mr. McWilliams was in
default on the loan. The default was recorded and a sheriff’s sale was scheduled for
February 11, 2014. In their complaint, plaintiffs allege that Mr. McWilliams was not in
default and that the foreclosure was unlawful. Plaintiffs seek monetary damages and
a court order enjoining the sheriff’s sale.

II.

Discussion

In the instant motion, Chase Bank argues that “Count I fails because the nonjudicial foreclosure has not been conducted and no cause of action for attempted
wrongful foreclosure exists under Missouri law.” See Doc. #6, at p. 1 (emphasis
added). Chase Bank further argues that Count II fails because a court cannot “enjoin
an event that was scheduled in the past and did not occur.” Id. at pp. 1, 4 (emphasis
added). Thus, the primary basis for Chase Bank’s motion to dismiss is that “the
foreclosure sale has not been held.” Id. at pp. 3, 4.
However, the instant motion also contradictorily states that plaintiff “fails to
state a claim against Chase – in his attempt to forestall eviction after Chase purchased
the property at a foreclosure sale after Plaintiff failed to make his monthly note
payments.” Id. at p. 3 (emphasis added). Furthermore, in their notice of removal,
Chase Bank states:
Plaintiffs request money damages, costs, and an order enjoining the sale
of the property. Since the foreclosure sale has already been conducted,
Plaintiffs’ current prayer for relief is moot. Because they sought to enjoin
the foreclosure sale from occurring on the basis that Plaintiffs allegedly
were no in [sic] default of the loan, they will no doubt seek to set aside
the sheriff’s sale.
[Doc. #8-1, ¶ 6] (emphasis added).
Because of the defendant’s inconsistent statements regarding foreclosure
proceedings with respect to the property at issue, the Court is unable to grant the
motion.
Accordingly,

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IT IS HEREBY ORDERED that the motion to dismiss filed by defendant J.P.
Morgan Chase Bank National for failure to state a claim for relief [Doc. #6] is denied
without prejudice.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 24th day of June, 2014.

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