Germain et al v. Deutsche Bank National Trust Company et al

Filing 19

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Deutsche Bank National Trust Companys Motion to Dismiss 9 is DENIED. IT IS FURTHER ORDERED that a Rule 16 conference will be set by separate order. Signed by District Judge John A. Ross on 3/8/2016. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

GERARD GERMAIN and
THERESA M. GERMAIN,
Plaintiffs,
v.
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

No. 4:15-CV-1674 JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Deutsche Bank National Trust Company
(Deutsche Bank)’s Motion to Dismiss. (Doc. No. 9) Plaintiffs filed a response. (Doc. No. 18)
Deutsche Bank did not file a reply and the time for doing so has passed. The motion is, therefore,
fully briefed and ready for disposition. For the following reasons, the motion will be denied.
Background
On September 24, 2015, Plaintiffs filed an action to quiet title against Deutsche Bank in
the Circuit Court of St. Charles County, Case No. 1511-CC00812. Plaintiffs allege that on or
about June 15, 1999, they purchased real property known and numbered as 5191 Rosemount
Drive, St. Charles, Missouri 63304 (“the Property”). (Petition, Doc. No. 5 at ¶ 6) The Property
was scheduled to be sold by Trustee’s sale on May 21, 2014 at 1:00 p.m. (Id. at ¶ 7) Plaintiffs
filed a voluntary petition for Chapter 13 bankruptcy on May 21, 2014 at 1:01 p.m., prior to
completion of the Trustee’s sale, which created an automatic stay pursuant to 11 U.S.C. § 362.
(Id. at ¶¶ 8-10) Plaintiffs contend the sale of the Property to Deutsche Bank on May 21, 2014
was in violation of the automatic stay and thus void. (Id. at ¶ 12) Deutsche Bank moves to

dismiss Plaintiffs’ action for failure to state a claim based on their lack of eligibility as debtors
under 11 U.S.C. § 109(h)(1).
Legal Standard
In ruling on a motion dismiss under Rule 12(b)(6), the Court must “must accept the
allegations contained in the complaint as true and draw all reasonable inferences in favor of the
nonmoving party.” Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005). The complaint's
factual allegations must be sufficient “to raise a right to relief above the speculative level,”
however, and the motion to dismiss must be granted if the complaint does not contain “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, 570 (2007) (abrogating the “no set of facts” standard for Fed. R. Civ. P. 12(b)(6)
found in Conley v. Gibson, 355 U.S. 41, 45–46 (1957)). Thus, a dismissal under Rule 12(b)(6)
should be granted “only in the unusual case in which a plaintiff includes allegations that show,
on the face of the complaint, that there is some insuperable bar to relief.” Strand v. Diversified
Collection Serv., Inc., 380 F.3d 316, 317 (8th Cir. 2004). The issue on a motion to dismiss is not
whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present
evidence in support of his or her claim. Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995).
Discussion
In support of its motion to dismiss, Deutsche Bank argues that Plaintiffs were not eligible
debtors because they failed to obtain pre-petition credit counseling prior to filing their
bankruptcy petition. Thus, no automatic stay was triggered when they filed their petition. (Doc.
No. 8 at 5-7) Deutsche Bank submits Plaintiffs’ Certificate of Counseling which states that
Plaintiffs completed the required credit counseling on May 21, 2014, at 1:19 p.m. and a copy of
the Bankruptcy Court’s order dated May 22, 2014, dismissing Plaintiffs’ bankruptcy case for

-2-

failing to obtain the mandatory credit counseling before filing their petition. (See Doc. Nos. 9-2,
9-3)1
Plaintiffs respond that under § 109(h), a debtor has 180 days to receive credit counseling,
and that 180-day period includes the entire date of filing of the petition. Section 109(h)(1)
originally provided that in order to be eligible to file a bankruptcy case, an individual must have
received credit counseling “during the 180-day period preceding the date of the filing of the
petition by such individual.” Effective December 22, 2010, the word “preceding” was replaced
with the phrase “ending on” by the Bankruptcy Technical Corrections Act of 2010, Pub. L. 111327, § 2, 124 Stat. 3557, 3558 (2010). See Bankruptcy Law Manual § 3:7 (5th ed.) Because they
received credit counseling on the date of the filing of their petition, albeit after the filing of the
petition, Plaintiffs argue they have satisfied the express terms of § 109(h) and are entitled to be
debtors. (Doc. No. 18 at 3-4)
Accepting the allegations contained in the complaint as true and drawing all reasonable
inferences in favor of Plaintiffs, the Court finds Plaintiffs have sufficiently pled a plausible claim
for relief. Of course the Court is not reviewing the merits of the claim at this stage of the
proceedings. What effect, if any, the Bankruptcy Court’s order of dismissal has on Plaintiffs’
claim is for the Court to determine at a later date.
Accordingly,

1

In reviewing a Rule 12(b)(6) motion to dismiss, the court is “not precluded in [its] review of the
complaint from taking notice of items in the public record.” Levy v. Ohl, 477 F.3d 988, 991 (8th Cir.
2007) (quoting Papasan v. Allain, 478 U.S. 265, 269 n. 1 (1986)). See also Stahl v. U.S. Dep't of Agric.,
327 F.3d 697, 700 (8th Cir. 2003) (“The district court may take judicial notice of public records and may
thus consider them on a motion to dismiss”). In Missouri, as in other states, court records are public
records. Levy, 477 F.3d at 991 (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-98
(1978); Pulitzer Publ'g Co. v. Transit Cas. Co., 43 S.W.3d 293, 300-01 (Mo. banc 2001); R.S. Mo. §§
109.180, 476.010).

-3-

IT IS HEREBY ORDERED that Defendant Deutsche Bank National Trust Company’s
Motion to Dismiss [9] is DENIED.
IT IS FURTHER ORDERED that a Rule 16 conference will be set by separate order.

Dated this 8th day of March, 2016.

_________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

-4-