Witengier et al v. U.S. Bank National Association et al

Filing 28

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of defendant Antony Catlin to dismiss for lack of jurisdiction [Doc. # 18 ] is granted. Signed by District Judge Carol E. Jackson on 4/21/2017. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JULIAN L. WITENGIER and MARCELINE
M. WITENGIER,
Plaintiffs,
vs.
U.S. BANK N.A., et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 4:16-CV-1855 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion of defendant Antony Catlin to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6).
Plaintiffs have responded, and the issues are fully briefed.1
I.

Background
On January 21, 2010, defendant U.S. Bank issued a loan to plaintiffs for the

purchase of real property, secured by a note and deed of trust. The parties
recorded the deed of trust with the St. Louis County Recorder of Deeds on
February 2, 2010. Several years later, on August 1, 2014, the parties purportedly
entered into a loan modification agreement.2

1

The Court recognizes that plaintiffs filed a late, overlong response to the instant motion,
without leave of Court. E.D. Mo. Loc. R. 4.01(B), (D). Because the Court finds that the tardy
filing was unintentional and did not prejudice defendants, the Court will consider plaintiffs’
arguments on the merits. See Cannon v. SSM Health Care, No. 4:14-CV-848 (CDP), 2014
WL 3600405, at *1 (E.D. Mo. July 22, 2014).
2

Plaintiffs challenge the validity of the loan modification agreement on the ground that they
did not receive an executed copy. [Doc. # 1-1 at 4]. Plaintiffs further contend that
defendant U.S. Bank and defendant SouthLaw “purport[] to be the owner[s]” of plaintiffs’
property “when they retain no interest whatsoever.” [Doc. #24 at 13].

Defendants contend that plaintiffs defaulted on the loan, and plaintiffs do not
dispute that claim.3 [Doc. #17 at 1 n.1].

Plaintiffs allege that they contacted

defendant Anthony Catlin, a U.S. Bank employee who was assigned to help them
find a solution to their mortgage difficulties. However, Catlin did not help them but
instead referred them to SouthLaw, P.C..
On September 14, 2016, defendant U.S. Bank appointed SouthLaw as the
successor trustee under the deed of trust. [Doc. #15-1]. The Recorder of Deeds
filed that instrument on September 21, 2016. Id. Defendants state that on
September 26, 2016, SouthLaw sent notice to plaintiffs that a trustee’s sale would
take place on October 13, 2016. [Doc. #17 at 2; Doc. #15 at 1]. That notification
also allegedly identified SouthLaw as the successor trustee.4 [Doc. #17 at 2].
Plaintiffs successfully halted the foreclosure after filing for bankruptcy.5 [Doc. #15
at 2].
Plaintiffs initiated this action pro se in the Twenty-First Judicial Circuit Court
of Missouri (County of St. Louis) after the attempted foreclosure. See [Doc. #1-1].
Defendant U.S. Bank subsequently removed the action to this Court on the basis of
diversity of citizenship jurisdiction, 28 U.S.C. § 1332.

Plaintiffs are Missouri

3

Plaintiffs do, however, summarily state that “[p]laintiffs are performing and have
performed all they are obligated to perform under Exhibit 1, except those things which the
[d]efendants, and each of them, are preventing [p]laintiffs from performing, including
specifically reinstatement of the subject mortgage.” [Doc. #1-1 at 7].
4

“A successor trustee is a substituted trustee with only such powers as the deed of trust
instrument gives him, and he becomes such only upon the happening of a contingency
therein named.” Sparks v. PNC Bank, 400 S.W.3d 454, 458 (Mo. Ct. App. 2013). Under the
terms of the parties’ deed of trust, U.S. Bank “at its option, may from time to time remove
Trustee and appoint a successor trustee to any Trustee appointed hereunder by an
instrument recorded in the county in which this Security Instrument is recorded.” [Doc.
#15-2 at 14 ¶ 24].
5

That case, In re Julian L. Witengier, No. 16-47386 (Bkrtcy. E.D. Mo. 2016) closed on
November 15, 2016. [Doc. #15 at 2 n.1].

2

citizens and defendants U.S. Bank and Catlin are Ohio citizens.6 In the complaint,
plaintiffs assert claims of breach of contract and breach of the covenant of good
faith and fair dealing. They also assert a quiet title claim.7
Plaintiffs base their claims on a number of alleged defects in the both the
security instruments and the attempted foreclosure process. First, with regard to
the security instruments, plaintiffs allege that (1) they did not receive an executed
copy of the modified loan agreement, (2) Southlaw was not properly designated as
the successor trustee,8 and (3) U.S. Bank fraudulently assigned the note and
concealed its “true” holder.9 [Doc. #1-1 at 4, 10]. Plaintiffs additionally contend
that defendants did not provide adequate notice of the trustee’s sale. Specifically,
defendants allegedly (1) directed notice to a “doe tenant,” (2) sent notice fewer
than twenty days before the scheduled foreclosure sale, and (3) did not record such
notice in “official records.” Id. at 4; see Mo. Rev. Stat. § 443.325. Furthermore,
plaintiffs claim that upon inquiry, defendants did not provide a “single point of
contact” and evaded plaintiffs’ attempts to ascertain the reinstatement amount. Id.
at 5–8.10 Finally, plaintiffs summarily assert that U.S. Bank and Southlaw
6

The complaint has been dismissed as to SouthLaw. Thus, its Missouri citizenship does not
destroy diversity.
7

The Court will not consider new claims asserted in plaintiffs’ response to defendants’
motions to dismiss. See [Doc. #24]. If the plaintiffs had intended to file an amended
complaint, they could have done so, and the Court will not accept new allegations included
by interlineation. See Fed. R. Civ. P. 15; Bailey v. Bonne Tere Mental Health Manager, No.
4:10-CV-1191 (JCH), 2010 WL 3938380, at *2 (E.D. Mo. Oct. 5, 2010).
8

The aforementioned recorded document appointing defendant Southlaw as the successor
trustee dispels plaintiffs’ contention about the improper designation, and the Court need not
address the allegation further. [Doc. #15-1].
9

Plaintiffs also claims that MERs “fraudulently created, executed and recorded” the deed of
trust. [Doc. #1-1 at 9]. MERs, however, is not a party to this action.
10

The complaint also briefly cites to the Real Estate Settlement Procedures Act (RESPA) as
a source of law. 12 U.S.C. §§ 2601, et seq. But plaintiffs fail to state anything more specific

3

perpetrated “a series of fraudulent transactions” by “modifying loan documents,
manipulating property values and making loans that were in violation of a
multiplicity of [s]tate laws.” Id. at 9.11
Catlin seeks dismissal of this action against him for lack of personal
jurisdiction. See Fed. R. Civ. P. 12(b)(2). He also moves for dismissal for failure to
state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).
II.

Discussion
A. Personal Jurisdiction
“To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff

must plead ‘sufficient facts to support a reasonable inference that the defendant[]
can be subjected to jurisdiction within the state.’” Creative Calling Sols., Inc. v. LF
Beauty Ltd., 799 F.3d 975 (8th Cir. 2015) (quoting K-V Pharm. Co. v. J. Uriach &
CIA, S.A., 648 F.3d 588, 591–92 (8th Cir. 2011)). The evidence must be viewed in
a light most favorable to the plaintiff; however, the burden does not shift to the
party challenging jurisdiction. Fastpath, Inc. v. Arbela Techs. Corp., 760 F.3d 816,
820 (8th Cir. 2014).
Personal jurisdiction can be specific or general. Viasystems, Inc. v. EBMPapst St. Georgen GmbH & Co., KG, 646 F.3d 589, 593 (8th Cir. 2011). “Specific
jurisdiction refers to jurisdiction over causes of action arising from or related to a
defendant’s actions within the forum state, while general jurisdiction refers to the
power of a state to adjudicate any cause of action involving a particular defendant,
regardless of where the cause of action arose.” Miller v. Nippon Carbon Co., Ltd.,
about how that federal statute applies to their case. See [Doc. #1-1 at 9].
11

Plaintiffs also include arguments pertaining to defendant U.S. Bank’s consent decree in an
unrelated matter. Id. at 7.

4

528 F.3d 1087, 1091 (8th Cir. 2008) (alterations in original) (quoting Bell Paper
Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 819 (8th Cir. 1994)).
“Specific personal jurisdiction can be exercised by a federal court in a
diversity suit only if authorized by the forum state’s long-arm statute and permitted
by the Due Process Clause of the Fourteenth Amendment.” Fastpath, Inc., 760 F.3d
at 820 (quoting Dairy Farmers of Am., Inc. v. Bassett & Walker Int’l, Inc., 702 F.3d
472, 475 (8th Cir. 2012) (internal quotation marks omitted)). Although some courts
collapse the analysis, these inquiries are separate. Dairy Farmers, 702 F.3d at 475
(citing Bryant v. Smith Interior Design Grp., Inc., 310 S.W.3d 227, 231–32 (Mo.
2010) (en banc) (analyzing the statutory and constitutional questions separately)).
“The reach of a state long arm statute is a question of state law,” while “the extent
to which the reach of a long arm statute is limited by due process is a question of
federal law.” Inst. Food Mktg. Assocs., Ltd. v. Golden State Strawberries, Inc., 747
F.2d 448, 455 (8th Cir. 1984).
Missouri’s long-arm statute authorizes personal jurisdiction over defendants
who, inter alia, transact business, make a contract, commit a tortious act, or own,
use, or possess real estate within the state. Mo. Rev. Stat. § 506.500.1. The cause
of action must arise out of the enumerated act in the statute. Mo. Rev. Stat. §
506.500.3. “In adopting the long-arm statute, the Missouri legislature ‘intended to
provide for jurisdiction, within the specific categories enumerated in the statutes . .
. to the full extent permitted by the due process clause.’” K-V Pharm. Co. v. J.
Uriach & CIA, S.A., 648 F.3d 588, 592 (8th Cir. 2011) (quoting State ex rel. Metal
Serv. Ctr. of Ga., Inc. v. Gaertner, 677 S.W.2d 325, 327 (Mo. 1984) (en banc));
see also Dairy Farmers, 702 F.3d at 475 (explaining that Missouri’s long-arm

5

statute only reaches the limits of due process within the specific categories
enumerated in the statute).
Plaintiffs do not address the issue of the propriety of exercising personal
jurisdiction over defendant Catlin in their memorandum in opposition to the motion.
See [Doc. #26]. However, because plaintiffs are pro se, the Court will search the
complaint for facts that could provide a basis for assuming personal jurisdiction.
Plaintiffs do not allege that defendant Catlin is a party to any contract. Thus,
the formation of a contract cannot provide for the exercise of jurisdiction over
Catlin. See Landstar Invs. II, Inc. v. Spears, 257 S.W.3d 630 (Mo. Ct. App. 2008)
(“it has long been a tenet of basic contract law that a contract generally binds no
one but the parties thereto, and it cannot impose any contractual obligation or
liability on one not a party to it” (internal quotation marks and citation omitted));
State ex rel. William Ranni Assocs., Inc. v. Hartenbach, 742 S.W.2d 134, 140 (Mo.
1987) (en banc) (“an agent for a disclosed principal is not a party to a contract and
is not liable for its nonperformance.”).
Although Missouri courts construe “transaction of any business” broadly, an
argument that defendant Catlin transacted business in Missouri would similarly fail.
Dairy Farmers of Am., Inc. v. Bassett & Walker Int’l, Inc., 702 F.3d 472, 476 (8th
Cir. 2012). A person or firm transacts business by visiting Missouri or sending its
product or advertising here. Id. A single transaction may confer jurisdiction, if that
is the transaction that gives rise to the suit. Chromalloy Am. Corp. v. Elyria Foundry
Co., 955 S.W.2d 1, 4 (Mo. 1997). But, “the use of mail or telephone
communications to Missouri is not by itself the transaction of business.” Dairy
Farmers, 702 F.3d at 476–77.

In the instant case, the plaintiffs have presented

6

evidence of several communications involving Catlin: an email dated October 7,
2016, and two phone calls from plaintiffs to Catlin seeking reinstatement figures.
[Doc. #24 at 4–5]. These communications do not establish that defendant Catlin
transacted business in Missouri. See Gross & Janes Co. v. Jeff Neill Timberland
Mgmt., Inc., No. 4:15-CV-1058 (JAR), 2016 WL 4665954, at *5 (E.D. Mo. Sept. 7,
2016) (“It is a defendant’s contacts with the forum state that are of interest in
determining if in personam jurisdiction exists, not its contacts with a resident”
(internal quotations and citations omitted)).
Lastly, plaintiffs have not pled any facts that would establish any element of
a tort. This is because “[a] party relying on a defendant’s commission of a tort
within this state to invoke long arm jurisdiction must make a prima facie showing of
the validity of his claim,” and plaintiffs have not asserted a cause of action for
negligence. Flooring Sys., Inc. v. Beaulieu Grp., LLC, 187 F. Supp. 3d 1091, 1096
(E.D. Mo. 2016) (citing State ex rel. William Ranni Assocs., Inc., 742 S.W.2d at
139).
Accordingly, the specifically enumerated acts required for the exercise of
Missouri long-arm jurisdiction are not present here. Plaintiffs have failed to make a
prima facie showing of personal jurisdiction over defendant Catlin. See Digi-Tel
Holdings, Inc. v. Proteq Telecomm. (PTE), Ltd., 89 F.3d 519, 522 (8th Cir. 1996).
Even if plaintiffs had established that an act under Missouri’s long-arm
statute was satisfied, assertion of jurisdiction over defendant Catlin would fail on
due process grounds. Due process requires that the defendant purposefully
establish “minimum contacts” in the forum state such that asserting personal
jurisdiction over the defendant does not offend “traditional conceptions of fair play

7

and substantial justice.” K-V Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 592
(8th Cir. 2011) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 464, 474–
477 (1985)). The defendant’s “connection must be based on ‘some act by which the
defendant purposefully avails itself of the privilege of conducting activities within
the forum State, thus invoking the benefits and protections of its laws.’” Creative
Calling Sols., Inc. v. LF Beauty Ltd., 799 F.3d 975, 980 (8th Cir. 2015) (quoting
Burger King, 471 U.S. at 474–75). The purposeful availment requirement is met
when the defendant’s contacts with the forum are “more than ‘random, fortuitous,
or attenuated,’ and must permit the defendant to ‘reasonably anticipate being haled
into court there.’” Id. at 980. Based on these principles, the Eighth Circuit has
established five factors that must be considered in determining whether sufficient
minimum contacts exist for personal jurisdiction:
(1) the nature and quality of the contacts with the forum state; (2) the
quantity of the contacts; (3) the relationship of the cause of action to
the contacts; (4) the interest of [the forum state] in providing a forum
for its residents; and (5) the convenience or inconvenience to the
parties.” Although “the first three factors are primary factors, and the
remaining two are secondary factors,” we look at all of the factors and
the totality of the circumstances in deciding whether personal
jurisdiction exists.
K-V Pharm. Co., 648 F.3d at 592-93 (alteration in original; citations omitted).
Applying these factors, defendant Catlin’s contacts with Missouri are not sufficient
to establish personal jurisdiction.

See Gross & Janes Co. v. Jeff Neill Timberland

Mgmt., Inc., No. 4:15-CV-1058 (JAR), 2016 WL 4665954, at *5 (E.D. Mo. Sept. 7,
2016) (citing T.J. Raney & Sons, Inc. v. Sec. Sav. & Loan Ass’n, 749 F.2d 523, 525
(8th Cir. 1984) (reasoning that phone conversation and written correspondence
with plaintiffs, standing alone, was insufficient to satisfy the requirements of due
process)).
8

If a court has general jurisdiction over a defendant, it can “adjudicate any
cause of action involving a particular defendant, regardless of where the cause of
action arose.” Miller v. Nippon Carbon Co., Ltd., 528 F.3d 1087, 1091 (8th Cir.
2008) (alterations in original) (quoting Bell Paper Box, Inc. v. U.S. Kids, Inc., 22
F.3d 816, 819 (8th Cir. 1994)). As with specific jurisdiction, general jurisdiction
may only be asserted insofar as it is authorized by state law and permitted by the
Due Process Clause. Viasystems, Inc. v. EBM-Papst St. Georgen GmbH & Co., KG,
646 F.3d 589, 595 (8th Cir. 2011). A court in Missouri may exercise general
jurisdiction over natural persons who are domiciled in the state. See Daimler AG v.
Bauman, 134 S. Ct. 746, 760 (2014) (“For an individual, the paradigm forum for
the exercise of general jurisdiction is the individual’s domicile”). Defendant Catlin is
not a domiciliary of Missouri. Accordingly, general personal jurisdiction cannot be
exercised over him.
Because the Court cannot exercise personal jurisdiction over defendant
Catlin, it need not address his 12(b)(6) arguments.
****
For the foregoing reasons,
IT IS HEREBY ORDERED that the motion of defendant Antony Catlin to
dismiss for lack of jurisdiction [Doc. #18] is granted.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 21st day of April, 2017.

9