McWilliams v. JPMorgan Chase Bank National Association et al

Filing 13

MEMORANDUM AND ORDER:IT IS HEREBY ORDERED that defendant's first amended motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) [Doc. # 11 ] is granted. An order of dismissal will be filed separately.. Signed by District Judge Carol E. Jackson on 2/2/15. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROSCOE R. MCWILLIAMS, JR., et al.,

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Plaintiffs,
vs.
J.P. MORGAN CHASE BANK, NATIONAL
ASSOCATION, et al.,
Defendants.

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

MEMORANDUM AND ORDER
This matter is before the Court on the first amended motion of defendant J.P.
Morgan Chase Bank, N.A. to dismiss the complaint for failure to state a claim for
relief, pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiffs have not filed a response, and
the time allowed for doing so has elapsed.
I.

Background

Plaintiffs Roscoe McWilliams, Jr. and Emma McWilliams bring this action
asserting a claim of wrongful foreclosure (Count I) and seeking injunctive relief
(Count II).1 According to the complaint, on September 28, 2006, Mr. McWilliams
executed a note and deed of trust for the purchase of real property in St. Louis
County, Missouri.

Defendant J.P. Morgan Chase Bank, N.A. (Chase Bank) is the

holder of the note.

On September 25, 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. Defendant South & Associates, P.C. was
appointed as successor trustee.

In the complaint, plaintiffs allege that Mr.

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 Plaintiffs filed this action in the St. Louis County Circuit Court.  It was removed by defendant J.P. Morgan Chase 
Bank, N.A., pursuant to 28 U.S.C. §§ 1332 and 1446. 

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McWilliams was not in default.

They seek monetary damages and an order

enjoining the sheriff’s sale.
II.

Legal Standard

The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules
of Civil Procedure is to test the legal sufficiency of the complaint.

The factual

allegations of a complaint are assumed true and construed in favor of the plaintiff,
“even if it strikes a savvy judge that actual proof of those facts is improbable.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319,
327 (1989) (“Rule 12(b)(6) does not countenance . . . dismissals

based on a

judge’s disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes, 416 U.S.
232, 236 (1974) (a well-pleaded complaint may proceed even if it appears “that a
recovery is very remote and unlikely”). The issue is not whether the plaintiff will
ultimately prevail, but whether the plaintiff is entitled to present evidence in
support of his claim. Id. A viable complaint must include “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see also id.
at 563 (stating the “no set of facts” language in Conley v. Gibson, 355 U.S. 41, 4546 (1957), “has earned its retirement.”). “Factual allegations must be enough to
raise a right to relief above the speculative level.” Id. at 555.
III.

Discussion
A.

Count I: Wrongful Foreclosure

Defendant argues that the complaint should be dismissed, because the nonjudicial foreclosure was never conducted and no cause of action for attempted
wrongful foreclosure exists under Missouri law. In the complaint, which was filed

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on March 17, 2014, plaintiffs allege that a sheriff’s sale was scheduled to take place
approximately a month earlier, on February 11, 2014.

However, neither in the

complaint nor in the pleadings subsequently filed do plaintiffs allege that the sale
actually occurred.

The Missouri Supreme Court has clearly and unconditionally

rejected attempted wrongful foreclosure as a cause of action. See Reese v. First
Missouri Bank & Trust Co. of Creve Coeur, 736 S.W.2d 371 (Mo. banc 1987) (“In
our view, our authorizing a cause of action for wrongful attempted foreclosure
would effectively nullify the purposes for having the expeditious non-judicial
foreclosure of deeds of trust.

If further provisions for delaying foreclosure of

security instruments is to be made, we believe the legislature should make the
decision.”).
Because plaintiffs have not alleged the actual occurrence of a foreclosure
sale, Count I fails to state a claim.
B.

Count II: Injunctive Relief

Defendant also argues that the request for injunctive relief in Count II is
moot. “A cause of action is moot when the question presented for decision seeks a
judgment upon some matter which, if the judgment was rendered, would not have
any practical effect upon any then existing controversy.”

Miller v. Mo. Dept. of

Corr., 436 S.W.3d 692, 696 (Mo. Ct. App. 2014). Because the date on which the
foreclosure sale was scheduled to take place has passed, the sale did not occur, and
plaintiffs have not alleged any future scheduled sale, plaintiffs’ claim for injunctive
relief is moot.
Furthermore, in considering a request for injunctive relief, district courts
must consider the threat of irreparable harm to the movant, the balance between

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this harm and harm to the nonmoving party if relief is granted, the movant’s
likelihood of success on the merits, and the effect on the public interest. Dataphase
Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). Because attempted
wrongful foreclosure is not a recognized cause of action in Missouri, the foreclosure
sale did not take place, and no future sale has been alleged, plaintiffs cannot
demonstrate irreparable harm or a likelihood of success on the merits.
Moreover, plaintiffs have not met the statutory requirements of a claim for
injunctive relief under Missouri law.

Pursuant to Mo. Rev. Stat. § 526.070, “no

injunction . . . shall issue in any case . . . until the plaintiff . . . shall have executed
a bond with sufficient surety or sureties to the other party.”

Plaintiffs have not

alleged they tendered any bond amount to secure the enjoined property.
Defendant South & Associates is not a party to the instant motion, nor has it
filed an answer to the complaint.

In its notice of removal, Chase Bank asserted

that South & Associates was fraudulently joined as a defendant. Plaintiffs did not
challenge the removal.

The complaint only refers to South & Associates as the

successor trustee. Plaintiffs do not allege that South & Associates violated any of
its duties as trustee, nor do they allege that South & Associates breached the deed
of trust.

Because plaintiffs have alleged no facts to support a cause of action

against South & Associates, the complaint will also be dismissed as to this
defendant for failure to state a claim.
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For the reasons set forth above,
IT IS HEREBY ORDERED that defendant’s first amended motion to dismiss
for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) [Doc. #11] is
granted.

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An order of dismissal will be filed separately.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 2nd day of February, 2015.

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