Foor v. Citi Mortgage Inc. et al

Filing 56

ORDER GRANTING re 18 MOTION to dismiss party filed by Progressive Casualty Ins Co, GRANTING 27 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Citi Mortgage Inc., GRANTING 26 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by MO State Attorney Ge, GRANTING 39 MOTION to dismiss party filed by Mortgage Electronic Registration System, Inc., DENYING 37 MOTION to consolidate cases MOTION for order to Transfer filed by Sydney Foor, DENYING 44 MOTION to consolidate cases MOTION to seal document, MOTION to consolidate cases MOTION for order to Transfer filed by Sydney Foor, Sydney Marie Foor, DENYING AS MOOT 8 MOTION for temporary restraining order filed by Sydne y Foor, DENYING 35 MOTION to appoint counsel filed by Sydney Foor, DENYING 53 MOTION to consolidate cases filed by Sydney Foor. Plaintiff's claims are dismissed, in their entirety, against all the Defendants. Signed on 10/3/16 by District Judge M. Douglas Harpool. (View, Pat) Modified on 10/3/2016 (View, Pat). Copy of Order mailed to Plaintiff.

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
SYDNEY FOOR, Relator for Stephanie
Foor,
Plaintiff,
v.
CITI MORTGAGE, INC. et al.,
Defendants.

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Case No. 2:15-cv-4296-MDH

ORDER
Before the Court is Defendant Progressive Casualty Insurance Company’s Motion to
Dismiss (Doc. 18); The Missouri Attorney General’s Motion to Dismiss (Doc. 26); Defendant
Citi Mortgage, Inc.’s Motion to Dismiss (Doc. 27); and Defendant Mortgage Electronic
Registration System, Inc.’s Motion to Dismiss (Doc. 39).

Plaintiff has filed excessive

documents in this case, some of which appear to be “responses” to the pending motions to
dismiss. After reviewing the numerous filings in this case, the Court finds that the pending
motions to dismiss are ripe for review.
Plaintiff has filed this pro se lawsuit against numerous defendants. Plaintiff’s most recent
complaint, the Second Amended Complaint, was filed on March 29, 2016 and names the
following defendants: CT Corporation Services; Originator US Bank; Government National
Mortgage Association as Trustee for Securitized Trust Ginnie Mae Remic Trust 2008-065;
Ginnie Mae; Citimortgage; Mortgage Electronic Registration System; and Does 1 through 100,
Inclusive. In interpreting the numerous “pleadings” and documents filed by Plaintiff, the Court
believes Plaintiff’s lawsuit is based on a defective foreclosure on her property. At this time,
there are four defendants who have filed Motions to Dismiss. Plaintiff has filed a Proof of

Service alleging the following have been served via certified mail: Citimortgage, Inc., Stonegate
Mortgage Corp., FHA/HUD, Mo Attorney General; MLLF; MERS; and Progressive Casualty
Insurance. (Doc. 24). From the record it does not appear defendants Martin Leigh Law Firm, CT
Corporation Services, US Bank, Government National Mortgage Association, or Ginnie Mae
have been served. Finally, in addition to excessive notice of filings, Plaintiff has also filed
several “motions” which are addressed herein.
STANDARD
“To survive a motion to dismiss [under 12(b)(6)], a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A complaint is facially plausible where its factual content
“allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”

Id.

The plaintiff must plead facts that show more than a mere speculation or

possibility that the defendant acted unlawfully. Id.; Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). While the Court accepts the complaint’s factual allegations as true, it is not required
to accept the plaintiff’s legal conclusions. Ashcroft, 556 U.S. at 678. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
The court’s assessment of whether the complaint states a plausible claim for relief is a
“context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Ashcroft, 556 U.S. at 679. The reviewing court must read the complaint as a
whole rather than analyzing each allegation in isolation. Braden v. Wal-Mart Stores, Inc., 588
F.3d 585, 594 (8th Cir. 2009). With regard to a pro se complaint the Court must liberally
construe the allegations and “pro se litigants are held to a lesser pleading standard than other
parties.” Whitson v. Stone County Jail, 602 F.3d 920, 922 n. 1 (8th Cir.2010) (citation omitted)

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However, a Plaintiff must allege sufficient facts to support her claims. Stone v. Harry, 364 F.3d
912, 914 (8th Cir. 2004); citing, Dunn v. White, 880 F.2d 1188, 1197 (10th Cir.1989) (regarding
a pro se plaintiff, “we will not supply additional facts, nor will we construct a legal theory for
plaintiff that assumes facts that have not been pleaded.”); and Cunningham v. Ray, 648 F.2d
1185, 1186 (8th Cir.1981) (“pro se litigants must set [a claim] forth in a manner which, taking
the pleaded facts as true, states a claim as a matter of law.”); see also, Johnson v. Nixon, 367 F.
App'x 715 (8th Cir. 2010); citing, Frey v. City of Herculaneum, 44 F.3d 667, 672 (8th Cir.1995)
(complaint fell short of meeting even liberal standard for notice pleading where it was entirely
conclusory and gave no idea what acts individual defendants were accused of that could result in
liability).
Further, Rule 12(b)(5) “authorizes a motion to dismiss on grounds of insufficiency of
service of process.” Steelman v. Lahontan, LLC, No. 4:12-CV-206 CAS, 2013 WL 1352013, at
*1 (E.D. Mo. Apr. 2, 2013). “Pursuant to Federal Rule of Civil Procedure 4, when no waiver of
service has been obtained or filed, service upon a corporation may be properly effectuated by one
of two ways: (1) by following the procedures prescribed for individuals under Federal Rule of
Civil Procedure 4(e)(1); or (2) by “by delivering a copy of the summons and of the complaint to
an officer, a managing or general agent, or any other agent authorized by appointment or by law
to receive service of process and—if the agent is one authorized by statute and the statute so
requires—by also mailing a copy of each to the defendant .” Id., see Fed.R.Civ.P. 4(h).
ANALYSIS
1. Progressive Casualty Insurance Company.
Progressive moves the Court to dismiss Plaintiff’s claims for failure to state a claim upon
which relief can be granted. A review of the record before the Court reflects that Plaintiff’s First

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Amended Complaint includes a handwritten reference to Progressive on the caption page.
However, other than Plaintiff’s handwritten reference to Progressive, the only other reference to
this Defendant is when Progressive is mentioned as a payee in the documents. Further, in
Plaintiff’s Second Amended Complaint, (Doc. 10), the most current pleading, Plaintiff makes no
reference, or allegation, against defendant Progressive. As a result, the Court finds Progressive’s
Motion to Dismiss is well taken and that Plaintiff has abandoned her claim against this
Defendant. Therefore, Progressive shall be dismissed from this lawsuit. In addition, even if
Plaintiff did not intend to drop her claim against Progressive, construing Plaintiff’s claims under
a liberal standard, Plaintiff’s reference to Progressive in her first pleadings fails to state any
claim against Progressive, and therefore would be dismissed pursuant to Rule 12(b)(6).
Therefore, for the reasons stated herein, Progressive’s Motion to Dismiss is GRANTED. (Doc.
18).
2. Attorney General
The Attorney General’s Motion to Dismiss argues Plaintiff’s Complaint should be
dismissed for several reasons. The AG argues Plaintiff lacks standing to bring her claim; her
Second Amended Complaint abandons her claim against the Attorney General; her claims are
barred by Eleventh Amendment immunity; she is not entitled to injunctive relief; and she fails to
state a claim upon which relief can be granted.
A review of Plaintiff’s Second Amended Complaint, along with her other complaints,
does not reflect any cause of action against the Attorney General. Similar to Progressive,
Plaintiff’s First Amended Complaint contains a handwritten reference to the Attorney General on
the caption page. However, there is no reference to the AG in Plaintiff’s Second Amended
Complaint.

Again, Plaintiff’s lawsuit concerns the alleged mishandling of a foreclosure by

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certain creditors. However, there are no allegations against the Attorney General in her lawsuit,
and even more specifically, Plaintiff abandons reference to the Attorney General in her Second
Amended Complaint. The Attorney General does not appear in Plaintiff’s caption, nor in the
documents attached to the “pleading.” As a result, the Court finds that Plaintiff has abandoned
her claim against this Defendant. In the alternative, if Plaintiff did not intend to abandon her
claim against this Defendant, Plaintiff’s claim against the Attorney General would be barred by
Eleventh Amendment Immunity and she has failed to state a claim upon which relief can be
granted. Therefore, for the reasons stated herein, the Attorney General’s Motion to Dismiss is
GRANTED. (Doc. 26).
3. Citi Mortgage
Defendant CitiMortgage moves the Court to dismiss Plaintiff’s claim for failure to state a
claim upon which relief can be granted, or in the alternative, to file a more definite statement, or
in the alternative to strike the Complaint due to failure to comply with Fed. R. Civ. P. 11(a).
First, CitiMortgage argues it has never been served with a copy of the complaint(s)
reflected on ECF. Rather, CitiMortgage attaches a February 2016 complaint that it received with
a summons. Plaintiff’s allegations against CitiMortgage appear to be based on a loan transaction
and subsequent default and foreclosure. CitiMortgage argues Plaintiff’s allegations of unlawful
ownership of the note and wrongful disclosure fail as a matter of law. CitiMortgage also
contends Plaintiff does not have standing to challenge the assignment of the note and further that
Plaintiff has failed to allege that Plaintiff was not in default and that a foreclosure sale occurred
and therefore her claim must fail.
With respect to the other allegations and counts contained in Plaintiff’s complaint,
Defendant argues Plaintiff has failed to plead the required elements of fraud; intentional

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infliction of emotional distress; slander; quiet title; declaratory relief; TILA and HOEPA;
RESPA; rescission of the loan and therefore should be dismissed.
While the Court has attempted to construe and decipher Plaintiff’s complaints and alleged
causes of action under the liberal standard afforded to a pro se Plaintiff, the Court simply cannot
construct a legal theory based on any “facts” in Plaintiff’s pleadings. The Court is not required
to decipher a complaint when it falls short of meeting even the liberal standard for notice
pleading, when as found here, the allegations, if any, are entirely conclusory and give no idea
what acts individual defendants were accused of that could result in liability. Instead, after a few
introductory typewritten pages, Plaintiff then has attached numerous documents and subsequent
handwritten notes in her filings. The Court finds that even after reading these documents as
favorably to the Plaintiff as possible, it is impossible to determine what complaints she has
against this Defendant, as well as the other Defendants referenced throughout her filings.
Plaintiff’s “complaint,” along with her excessive filings, leaves the Court, and the Defendants, to
guess as to what relevance her attachments and handwritten notes have to any of her alleged
claim. As a result, the Court GRANTS the Motion to Dismiss. (Doc. 27).
4. MERS
Defendant MERS moves to dismiss Plaintiff’s complaint for insufficient service of
process. Unlike the other defendants, MERS does not waive service and argues the Summons it
received failed to include a copy of any complaint, despite Plaintiff’s filing of multiple
complaints in this case.
MERS argues pursuant to Rule 4(c)(1) a summons must be served with a copy of the
complaint and failure to do so may result in a dismissal pursuant to Rule 12(b)(5). See LNV
Corp. v. Robb, 843 F.Supp. 2d 1002, 1003 (Mo.W.D. Jan. 31, 2012). If the Court lacks

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jurisdiction over the Defendant, it has discretion to dismiss the cause of action. Steelman v.
Lahontan, LLC, No. 4:12-CV-206 CAS, 2013 WL 1352013, at *2 (E.D. Mo. Apr. 2, 2013);
citing, Marshall v. Warwick, 155 F.3d 1027, 1033 (8th Cir.1998) (“the [district] court has
discretion to either dismiss the action, or quash service but retain the case.”) (internal citations
omitted). Here, the Court believes the determination of whether Plaintiff has properly served
MERS is not required. If Defendant MERS had waived service, as some of the other Defendants
did, the Court believes a Motion to Dismiss for Failure to State a Claim would be well taken
because Plaintiff has failed to state a cause of action against this Defendant.
The Court has a right as a threshold matter to inquire as to whether this Court has
jurisdiction to proceed with this case. See, Myers v. Richland Cty., 429 F.3d 740, 74 (8th Cir.
2005) (“[a]ny party or the court may, at any time, raise the issue of subject matter jurisdiction”)
(internal citations omitted) and United States v. Hays, 515 U.S. 737, 742, 115 S. Ct. 2431, 2435,
132 L. Ed. 2d 635 (1995) (“The federal courts are under an independent obligation to examine
their own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional]
doctrines.’”). Here, Plaintiff has failed to allege a claim in this Court upon which she has
standing, or upon which this Court has jurisdiction, and therefore, for the reasons set forth
herein, Plaintiff’s claims against MERS are DISMISSED.
5. Plaintiff’s Motions
Plaintiff has also filed numerous motions. First, Plaintiff has a pending “Application for
Temporary Restraining Order, Preliminary Injunction and Declaratory Relief.”

(Doc. 8).

Plaintiff’s “motion” has typewritten across the top of the first page “In Circuit Court of Camden
County, Missouri” with handwritten notes above it that states “U.S. District Court Western
District of Mo Southern Division,” “dropped off 3/2/2016 Camdenton, MO Camden County

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courthouse, no answer.” Plaintiff sets forth numerous allegations in this document regarding the
foreclosure that was to “happen within the next week.” The document was filed on March 8,
2016. However, Plaintiff then filed a second amended complaint on March 29, 2016 and at that
time did not request any further action taken with request to her prior “application.” As a result,
the Court DENIES Plaintiff’s Application for TRO, (Doc. 8), finding it moot.
Plaintiff has also filed a third motion for appointment of counsel. (Doc. 35). The Court
has previously denied the appointment of counsel in this case two times. (See Docs. 3 and 14).
Plaintiff’s application provides no further evidence to justify the appointment of counsel.
Plaintiff’s Motion is DENIED. (Doc. 35).
Finally, Plaintiff has filed several motions to consolidate. Plaintiff first requests that the
Court consolidate her cases, including bankruptcy cases, and to again appoint her a
representative. Plaintiff refers to case numbers 90-30568; 05-23820; 13-20925; 13-21618; 1121620; 15-04296; and 16-3004. Plaintiff has shown no connection to any case numbers listed in
her handwritten notes and the only case referenced in her “motion” that was previously before
this Court has been dismissed. See Case No. 16-3004.
Consolidate is DENIED.

(Doc. 37).

Therefore, Plaintiff’s Motion to

Plaintiff’s second motion to consolidate moves to

consolidate because Plaintiff believes all her cases are related “due to the fact that I applied for
SSDI in 2002 for myself and in 2005 for my daughter.”

(Doc. 44).

Plaintiff moves to

consolidate case numbers 16-3004; 15-4296; and 16-4052.

However, the two other cases

referenced in Plaintiff’s motion have already been dismissed. Therefore, Plaintiff’s Motion is
DENIED. (Doc. 44).
Plaintiff’s last motion, (Doc. 53), is a handwritten note that states in its entirety: “To the
judge, I, Motion the court to consolidate all cases and file under seal as false claims act, see doc

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in 2:15-cv-04296 – MDH.” For the reasons set forth herein, Plaintiff’s motion is DENIED.
(Doc. 53).
6. Remaining Defendants
Finally, Plaintiff claims she has served Stonegate Mortgage Corp., FHA/HUD and
MLLF. (See Doc. 24). Plaintiff does not reference any service of defendants Martin Leigh Law
Firm, CT Corporation Services, US Bank, Government National Mortgage Association or Ginnie
Mae. Regardless of whether Plaintiff has obtained proper service on these Defendants, which the
Court does not believe has occurred, the Court’s review of Plaintiff’s multiple complaints, and
excessive filings in this case, does not reveal that Plaintiff has established that she has standing
to bring claims against these Defendants based on the information she has provided to the Court,
or that she has complied with the Federal Rules of Civil Procedure for bringing a lawsuit against
these parties. See, Myers v. Richland Cty., 429 F.3d 740, 74 (8th Cir. 2005) (“[a]ny party or the
court may, at any time, raise the issue of subject matter jurisdiction”) (internal citations omitted)
and United States v. Hays, 515 U.S. 737, 742, 115 S. Ct. 2431, 2435, 132 L. Ed. 2d 635 (1995)
(“The federal courts are under an independent obligation to examine their own jurisdiction, and
standing ‘is perhaps the most important of [the jurisdictional] doctrines.’”). Here, the Court is
unable to decipher Plaintiff’s basis for standing for her alleged claims against these Defendants.
The Court’s attempt to comprehend Plaintiff’s filings has not revealed a basis for this lawsuit to
proceed in this Court. Even reading Plaintiff’s filings as favorably as possible the Court is
unable to establish that Plaintiff has alleged a claim upon which she has standing, or upon which
this Court has jurisdiction, and therefore, for the reasons set forth herein, Plaintiff’s claims are
dismissed, in their entirety.

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CONCLUSION
For the reasons set forth herein, Defendant Progressive Casualty Insurance Company’s
Motion to Dismiss (Doc. 18) is GRANTED; The Missouri Attorney General’s Motion to
Dismiss (Doc. 26) is GRANTED; Defendant Citi Mortgage, Inc.’s Motion to Dismiss (Doc. 27)
is GRANTED; and Defendant Mortgage Electronic Registration System, Inc.’s Motion to
Dismiss (Doc. 39) is GRANTED. In addition, Plaintiff’s pending motions are DENIED for the
reasons set forth herein. Finally, Plaintiff’s claims are dismissed, in their entirety, against all the
Defendants, for the reasons set forth herein.

IT IS SO ORDERED.
Dated: October 3, 2016

/s/ Douglas Harpool
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE

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