Victorian v. Wells Fargo Home Mortgage et al

Filing 45

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's motion to strike is GRANTED in part, to the extent that it requests that the Court exclude all references to facts and exhibits not contained in Plaintiff's amended complaint; th e motion is otherwise DENIED. (Doc. No. 35 .) IT IS FURTHER ORDERED that Plaintiff shall have until October 6, 2015 to file a response to the motion to dismiss filed by Defendants Wells Fargo Home Mortgage and Deutsche Bank National Trust Company. Signed by District Judge Audrey G. Fleissig on September 30, 2015. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LENORE VICTORIAN,
Plaintiff,
v.
WELLS FARGO HOME MORTGAGE,
et al.
Defendants.

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No. 4:15-CV-00667-AGF

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s motion to strike the motion to dismiss
filed by Defendants Wells Fargo Home Mortgage (“Wells Fargo”) and Deutsche Bank
National Trust Company (“Deutsche Bank”); to exclude all reference to facts and exhibits
not contained in Plaintiff’s first amended complaint; or to treat Defendants’ motion as a
motion for summary judgment. (Doc. No. 35.) For the reasons set forth below,
Plaintiff’s motion shall be granted in part.
BACKGROUND
Plaintiff’s amended complaint asserts several claims arising out of the foreclosure
sale of her home. In relevant part, Plaintiff alleges that Wells Fargo approved Plaintiff to
enter a Trial Period Plan for modification of her loan under the federal government’s
Home Affordable Modification Program (“HAMP”). Plaintiff alleges that after making
timely trial period payments, Wells Fargo informed her that she did not meet the
requirements for a permanent loan modification under HAMP because she had a second

mortgage on her property. Based in part on these allegations, Plaintiff asserts claims
against Wells Fargo for breach of contract, fraud, and various statutory violations.
Wells Fargo and Deutsche Bank have moved to dismiss the complaint for failure
to state a claim under Federal Rule of Civil Procedure 12(b)(6). These Defendants make
several arguments in support of dismissal, but one argument relies upon a document
outside of the pleadings. Defendants assert that this document is a copy of Plaintiff’s
Request for Mortgage Assistance (“RMA”) (Doc. No. 31-1), which Plaintiff purportedly
submitted in applying for a HAMP modification and in which Defendants assert that
Plaintiff misrepresented the amount of her monthly payment on her second mortgage.
Plaintiff argues that the RMA was never mentioned in her complaint and appears
to be missing some pages. Plaintiff argues that she cannot respond to any arguments
regarding the RMA without conducting discovery relating to all of the documents
submitted by Plaintiff to Defendants regarding her income and expenses in connection
with her HAMP application. Plaintiff asserts that while she has some of these documents
in her possession, she does not have the RMA attached to Defendant’s motion in her
possession.
Plaintiff therefore asks that the Court (1) strike Defendant’s motion, (2) exclude
all references to facts and exhibits not contained in Plaintiff’s amended complaint, or (3)
treat the motion as a motion for summary judgment, pursuant to Federal Rule of Civil
Procedure 12(d), and allow Plaintiff time to conduct discovery before responding.
Plaintiff has not responded to the motion to dismiss on the merits and asserts that
she cannot do so without knowing whether the Court will consider the extrinsic evidence
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presented by Defendants and whether the Court will treat the motion as one for summary
judgment. Therefore, she also requests additional time to respond the motion to dismiss.
Wells Fargo and Deutsche Bank respond that the RMA is necessarily embraced by
Plaintiff’s amended complaint and is therefore not a matter outside the pleadings. These
Defendants contend that in the amended complaint, Plaintiff alleges that she “sent Wells
Fargo documents that evidenced her financial circumstances.” (Doc. No. 24 at 2.)
Defendants further argue that the entire gist of Plaintiff’s amended complaint is that
Wells Fargo was obligated to modify Plaintiff’s loan based on her HAMP application,
and the application, including the RMA, is therefore embraced by the pleadings. Wells
Fargo also argues that Plaintiff’s assertion regarding any pages missing from the RMA is
specious because the only missing pages are “fax page numbers that do not affect the
substance of that document.” (Doc. No. 36 at 7 n.6.)
DISCUSSION
In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
courts must generally ignore materials outside the pleadings, but they may consider “the
pleadings themselves, materials embraced by the pleadings, exhibits attached to the
pleadings, and matters of public record.” Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th
Cir. 2011). A motion to dismiss under Rule 12(b)(6) must be treated as a motion for
summary judgment when matters outside the pleadings are presented and not excluded by
the trial court. Fed. R. Civ. P. 12(d). Matters outside the pleadings include any written
evidence “in support of or in opposition to the pleading that provide[s] some

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substantiation for and does not merely reiterate what is said in the pleadings.” McAuley
v. Federal Ins. Co., 500 F.3d 784, 787 (8th Cir. 2007).
Although Plaintiff’s amended complaint broadly and briefly references
documentation sent to Wells Fargo, it contains no mention of or reference to the RMA.
Therefore the RMA does not merely reiterate what is said in the pleadings.
The Court concludes that the RMA is a matter outside the pleadings and will grant
Plaintiff’s motion to the extent that it requests that the Court exclude all references to the
RMA and any other facts outside of Plaintiff’s amended complaint.
Because the Court will exclude references to matters outside the pleadings, it will
deny as moot Plaintiff’s alternative requests to strike the motion to dismiss or to treat the
motion as one for summary judgment.
The Court will also grant Plaintiff additional time to respond to the motion to
dismiss, until October 6, 2015, which is the same date on which Plaintiff’s response to
the other motion to dismiss in this case (filed by the remaining Defendant, Chase Bank
USA, N.A.) is due.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion to strike is GRANTED in
part, to the extent that it requests that the Court exclude all references to facts and
exhibits not contained in Plaintiff’s amended complaint; the motion is otherwise
DENIED. (Doc. No. 35.)

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IT IS FURTHER ORDERED that Plaintiff shall have until October 6, 2015 to
file a response to the motion to dismiss filed by Defendants Wells Fargo Home Mortgage
and Deutsche Bank National Trust Company.

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AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 30th day of September, 2015.

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