Bray v. RMS Reverse Mortgage Soultions, INC et al

Filing 33

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion to Dismiss, 14], is GRANTED.IT IS FURTHER ORDERED this matter is dismissed.[Doc. No 14 Signed by District Judge Henry Edward Autrey on 11/28/16. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PATRICK RYAN VRAY,
Plaintiff,
v.
RMS REVERSE MORTGAGE
SOLUTIONS, et al.,
Defendants.

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No. 4:16CV88 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants' Motion to Dismiss for lack of
Standing, [Doc. No. 14]. Plaintiff opposes the motion. For the reasons set forth
below, Defendants' motion is well taken and will be granted.
Facts and Background
Plaintiffs’ Complaint alleges Defendants wrongfully foreclosed Plaintiff’s
deceased father’s property and “theft of personal property” by failing to send out
an “Important Notice” as required by HUD and/or FHA guidelines relating to
reverse mortgages, foreclosing the subject property and removing the contents
thereof. The Complaint seeks recovery of damages allegedly suffered by the estate
of Plaintiff’s father, Kenneth Wayne Bray. The Complaint identifies Barry
Fishbach as the personal representative of the Estate. Further, the Complaint
identifies the heirs of the Estate as plaintiff and his estranged brother, however, the

Complaint also details that a finding of heirship has not been made in the Missouri
Probate Court.
Defendants move to dismiss this matter for lack of subject matter
jurisdiction by reason of the fact that it has not been brought by the proper party,
i.e., the personal representative of the estate, Barry Fishbach.
Discussion
A motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1) may be either a “facial” challenge based on the face of the pleadings, or a
“factual” challenge, in which the court considers matters outside the pleadings. See
Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993); Osborn v. United States, 918
F.2d 724, 729, n. 6 (8th Cir. 1990); C.S. ex rel. Scott v. Mo. State Bd. of Educ., 656
F. Supp. 2d 1007, 1011 (E.D. Mo. 2009). Here, Defendant's challenge is based on
the face of the pleadings and is therefore a facial attack. In evaluating a facial
attack, “the court restricts itself to the face of the pleadings and the non-moving
party receives the same protections as it would defending against a motion brought
under Rule 12(b)(6).” Branson Label, Inc. v. City of Branson, Mo., 793 F.3d 910,
914 (8th Cir. 2015) (quoting Osborn, 918 F.2d at 729 n. 6). The court must accept
as true all of the factual allegations in the complaint, but it need not accept legal
conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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Under Article III, § 2 of the United States Constitution, federal jurisdiction
is limited to “Cases” and “Controversies.” U.S. Const. Art. III, § 2. “‘One element
of the case-or-controversy requirement’ is that plaintiffs ‘must establish that they
have standing to sue.’ ” Clapper v. Amnesty Int'l U.S.A., 133 S. Ct. 1138, 1146
(2013) (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). The “irreducible
constitutional minimum” of standing consists of three elements. Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992)). “The plaintiff must have (1) suffered an injury in fact, (2)
that is fairly traceable to the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial decision.” Id. “The plaintiff, as the
party invoking federal jurisdiction, bears the burden of establishing these
elements.” Id. (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990)). Where a
case is at the pleading stage, the plaintiff must “clearly...allege facts demonstrating
each element.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).
Defendants urge dismissal for lack of standing because Plaintiff is not the
personal representative of the Estate of Kenneth Wayne Bray, original owner of the
subject property.
Section 473.270 of the Missouri Revised Statutes provides:
Executors and administrators shall collect all money and debts of every kind
due to the decedent, and give receipts and discharges therefor, and shall commence
and prosecute all actions which may be maintained and are necessary in the course
of his administration, and defend all actions brought against him.
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Thus, a decedent's cause of action can only survive if brought by a personal
representative of his estate appointed by a probate court. Johnson v. Akers, 9
S.W.3d 608, 609–610 (Mo.2000). “A personal representative of an estate is
appointed by the probate division of the circuit court in the applicable jurisdiction
upon filing of letters of administration with the court.” Id. (citing Mo.Rev.Stat. §
473.110).
Plaintiff admits he is not the personal representative of his father’s estate.
Plaintiff, therefore, lacks standing to bring this claim, so this case must,
necessarily, be dismissed. “Standing is jurisdictional and a lack of standing cannot
be waived,” under the doctrine of laches or otherwise. See Sauter v. Schnuck
Market, Inc., 803 S.W.2d 54, 55 (Mo.App. 1990). Defendants’ Motion to Dismiss
for lack of subject matter jurisdiction is well placed.
Conclusion
Based upon the foregoing analysis, the Court concludes that Plaintiff lacks
standing to pursue this action, and therefore, the Court is without subject matter
jurisdiction.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss, [Doc. No

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14], is GRANTED.
IT IS FURTHER ORDERED this matter is dismissed.
Dated this 28th day of November, 2016.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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