Reineiro v. The Bank of New York Mellon

Filing 264

Amended ORDER - plaintiff's amended petition fails to state any claims against the defendants. The Court GRANTS Defendant South's Motion to Dismiss 71 ; GRANTS BANA and BONY's Motion to Dismiss 74 ; DENIES AS MOOT plaintiff's motions in limine 116 , 117 , 118 , 119 and 126 ; DENIES AS MOOT BONY and BANA's Motions to Stay Briefing on the Motions in Limine 158 , 160 ; DENIES AS MOOT BANA's Motion for Extension of Time to File Response to Plaintiff's Interrogatories 159 ; DENIES AS MOOT Plaintiff's Motions to Compel Discovery 179 , 182 , 210 , 215 , 227 , 244 , 257 , 258 ; DENIES AS MOOT plaintiff's Motion for In Camera Inspection 181 , DENIES plaintiff's Motion for Lea ve to Amend 191 ; DENIES plaintiff's Motion for Reconsideration 198 and GRANTS BONY's Motion to Substitute Attorney 121 ; DENIES Plaintiff's Motion to Remand 252 ; DENIES Plaintiff's Motion to Reconsider 259 and DENIES Plaintiff's Motion for Judicial Notice 261 . Signed on 12/30/15 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda) Copy sent via regular and certified mail (70062760000064140621) on 12/30/2015 (Carr, Lori).

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
TYNISHA LATRICE REINERIO,
Plaintiff,
v.

THE BANK OF NEW YORK MELLON f/k/a
THE BANK OF NEW YORK, SOUTH
& ASSOCIATES, P.C., and BANK OF
AMERICA, N.A.,
Defendants.

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Case No. 15-CV-161-FJG

AMENDED ORDER1
Currently pending before the Court is Defendant SouthLaw, P.C. (“South’s”)
Motion to Dismiss (Doc. # 71); Bank of America N.A. (“BANA”) and The Bank of New
York Mellon (“BONY’s”) Motion to Dismiss (Doc. # 74); plaintiff’s motions in limine
(Docs. 116,117,118,119 and 126); BONY and BANA’s Motions to Stay Briefing on the
Motions in Limine (Doc. # 158, 160); BANA’s Motion for Extension of Time to File
Response to Plaintiff’s Interrogatories (Doc. # 159); Plaintiff’s Motions to Compel
Discovery (Doc. # 179, 182, 210, 215, 227, 244, 257, 258); plaintiff’s Motion for In
Camera Inspection (Doc. # 181), plaintiff’s Motion for Leave to Amend (Doc. #191)
plaintiff’s Motion for Reconsideration (Doc. # 198) and BONY’s Motion to Substitute
Attorney (Doc. # 121); Plaintiff’s Motion to Remand (Doc. # 252); Plaintiff’s Motion for
1

The Court initially issued this Order on December 8, 2015. Although plaintiff mailed her Motion to
Remand on December 4, 2015, it was not docketed by the Clerk’s office until December 11, 2015. This
Amended Order rules plaintiff’s Motion to Remand, Motion for Reconsideration, Motions to Compel and
the Motion for Judicial Notice, which plaintiff filed after the December 8, 2015 order was docketed.

Reconsideration (Doc. # 259) and Plaintiff’s Motion for Judicial Notice (Doc. # 261).
I. BACKGROUND
On February 15, 2005, plaintiff signed a promissory note and deed of trust to
Countrywide Home Loans, Inc. d/b/a America’s Wholesale Lender to refinance property
located at 13128 Ashland Avenue, Grandview, Missouri 64030. (Amended Petition, ¶¶
2, 5). On February 13, 2012, Mortgage Electronic Registration Systems, Inc., as
nominee for America’s Wholesale Lender assigned the Mortgage/Deed of Trust on the
property to The Bank of New York Mellon. Non-judicial foreclosure of the property
occurred on December 4, 2014. On December 16, 2014, plaintiff filed a petition in
Jackson County Circuit Court to enjoin the foreclosure of the property. Defendants
BONY and BANA removed the case to this Court on March 5, 2015. On July 20, 2015,
the Court denied defendants’ motions to dismiss, because they were based on plaintiff’s
initial petition, not on plaintiff’s Amended Petition. The Court granted the defendants a
period of additional time to answer or otherwise respond to the Amended Petition. The
Court now considers on the merits, the defendants’ Motions to Dismiss.
II. STANDARD
To survive a motion to dismiss under 12(b)(6), Aa complaint must contain sufficient
factual matter, accepted as true, to state a claim for relief that is plausible on its face.@
Ashcroft v. Iqbal, 556 U.S. 662,129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007)). A pleading that merely pleads Alabels and conclusions@ or a Aformulaic
recitation@ of the elements of a cause of action, or Anaked assertions@ devoid of Afurther
factual enhancement@ will not suffice. Id. (quoting Twombly). ADetermining whether a

2

complaint states a plausible claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.@ Id.
at 1950. Under Fed. R. Civ. P. 12(b)(6) we must accept the plaintiff=s factual allegations
as true and grant all reasonable inferences in the plaintiff=s favor. Phipps v. FDIC, 417
F.3d 1006, 1010 (8th Cir. 2005).
III. DISCUSSION
A. BANA/BONY’s Motion to Dismiss
1. Count II- Wrongful Foreclosure
Plaintiff alleges in the “General Factual Allegations” section of her Complaint that
she was not in default at the time of non-judicial foreclosure nor was she in default at
the time of publication advertising the Trustee’s Sale of the property. (Amended Petition,
¶¶ 6-7). In Count II, plaintiff also alleges that the defendants failed to comply with the
Pooling and Service Agreements during the securitization process, which required
delivery of the actual mortgage documents. She also alleges that defendants never
owned or purchased the note and never had a right or interest in the note, so the nonjudicial foreclosure was void. (Amended Petition, ¶¶ (11-13, 46-49).
Defendants argue that plaintiff has offered no factual support for her assertion
that she was not in default under the note. In response plaintiff points to the statements
contained in ¶¶ 6-7 of the General Factual Allegation section of the Complaint. In order
to clarify this issue of whether plaintiff was in default at the time of the foreclosure, the
Court requested that the parties provide additional briefing on this issue. On November
16, 2015, plaintiff responded stating that she made all scheduled payments when due.
She states that she was not in default on the date of foreclosure or at the time of

3

publication advertising the Trustee’s Sale of the property. Plaintiff asserts that she
maintained a record of her payment history until her storage space was compromised
and this resulted in the loss of her payment records. Plaintiff also alleges that she has
been prejudiced because she has not been able to obtain records from either Ticor Title
or Countrywide Home Loans, Inc., showing the payments she made on the loan.
However, as BONY notes, this fact is irrelevant because neither Ticor Title nor
Countrywide Home Loans, Inc. would have records related to the issue of whether
plaintiff was in default. BONY states that Bank of America was the loan servicer for
plaintiff’s account during the relevant time period. Plaintiff did attach as an exhibit to her
response, a Bank of America Loan History Statement which provides a history of the
transactions related to her loan from February 28, 2005 (the date of the loan closing),
through December 8, 2014 (the date of the foreclosure sale). The Loan History
statement reflects that plaintiff made only two payments in 2013 and made no payments
on the loan in 2014. (Plaintiff’s Response to Court’s Order, Exhibit 8, p. 9-11).
Defendants BONY and BANA argue that this exhibit demonstrates that contrary to
plaintiff’s assertions and claims, she actually was in default at the time of the nonjudicial foreclosure. The Court agrees and finds that plaintiff has failed to state a claim
for wrongful foreclosure, because she has failed to show that she was not in default.
Alternatively, defendants argue that plaintiff’s wrongful foreclosure claim should
be dismissed because she lacks standing. Defendants argue that courts in the Eighth
Circuit have held that debtors lack standing to challenge defendants’ compliance with
pooling and servicing agreements.
Plaintiff argues in opposition that Missouri caselaw provides that one of the

4

circumstances which may render a foreclosure sale void arises when “the foreclosing
party does not hold title to the secured note.” Williams v. Kimes, 996 S.W.2d 43,45
(Mo. banc. 1999); Morris v. Wells Fargo Home Mortg., No. 4:11CV1452-CEJ, 2011 WL
3665150 at *2 (E.D.Mo. Aug. 22, 2011). Plaintiff argues that because the defendants did
not comply with the terms of the Pooling & Service Agreements, they did not have
possession of the note and if they did not possess the note, then plaintiff could be
subject to multiple enforcements of the note.
In Schwend v. U.S. Bank, N.A., No. 4:10CV1590CDP, 2013 WL 686592
(E.D.Mo. Feb.26, 2013), the Court stated, “‘A judicial consensus has developed holding
that a borrower lacks standing to (1) challenge the validity of a mortgage securitization
or (2) request a judicial determination that a loan assignment is invalid due to
noncompliance with a pooling and servicing agreement.’” Id. at *3 (quoting Metcalf v.
Deutsche Bank Nat. Trust Co., No. 3:11CV3014D, 2012 WL 2399369, at *4 (N.D.Tex.
June 26, 2012)). Similarly, in Millon v. JP Morgan Chase Bank, N.A., 518 Fed. Appx.
491, 496 (8th Cir. 2013), the Court found that the plaintiff in that case failed to explain
how the “note was securitized and transferred” had any “legal significance that impacts
[the note holder’s] right to enforce the note.” See also, Banks v. HSBC Bank USA, N.A.,
No. 14-000139-CV-W-JTM, 2014 WL 4829541, *2 (W.D.Mo. Sept. 29, 2014)(same).
See also Bailey v. Deutsche Bank Trust Co. Americas, No. 15-0014-CV-W-ODS, 2015
WL 1097393, *3, (W.D.Mo. Mar. 11, 2015)(same).
Courts have also rejected plaintiff’s claim that the defendants needed to have
ownership or title to a note. In Barnes v. Federal Home Mortg. Corp., No. 5:12-CV06062-DGK, 2013 WL 1314200 (W.D.Mo. Mar. 28, 2013), aff’d, 550 Fed.Appx. 340 (8th

5

Cir. 2014), the plaintiff alleged that since the Note had not been specifically endorsed in
defendants’ favor, the defendants did not own or hold title to the Note and could not
foreclose on the property. The Court stated that there was “no merit to this argument.”
Id. at *4. The Court noted that:
[u]nder Missouri’s enactment of U.C.C. Article 3, the Note is a negotiable
instrument, thus, §400.3-301 governs who may enforce it and foreclose on
the Property. . . .Under Missouri law, a special endorsement is not
necessary to enforce a negotiable instrument. Although Plaintiff has cited
a number of cases, none of them state that the holder of a note that has
been endorsed in blank is forbidden from enforcing the note through the
foreclosure process. On the contrary, MoRev.Stat.§ 400.3-301 recognizes
that the holder of a note endorsed in blank can enforce it. Accordingly,
this portion of the Complaint fails to state a claim.
Id. at *5 (internal citations omitted). Similarly, in the case In re Washington, 468 B.R.
846 (W.D.Mo. Dec.1, 2011), aff’d sub nom Washington v. Deutsche Bank Nat. Trust
Co., No. 11-01278-CV-FJG, 2012 WL 4483798 (W.D.Mo. Sept. 28, 2012), the Court
explained:
Under Mo.Rev.Stat. § 400.3–301, a “Person entitled to enforce” an
instrument is defined as “(i) the holder of the instrument, (ii) a nonholder in
possession of the instrument who has the rights of a holder, or (iii) a
person not in possession of the instrument who is entitled to enforce the
instrument pursuant to Section 400.3–309 or 400.3–418(d). A person may
be a person entitled to enforce the instrument even though the person is
not the owner of the instrument or is in wrongful possession of the
instrument.” “Holder” with respect to a negotiable instrument, means the
person in possession if the instrument is payable to bearer. “If a
negotiable instrument has been endorsed in blank,2 as the Note in this
case has been, the instrument becomes payable to ‘bearer’ and may be
negotiated by transfer of possession alone.” 3 “If an instrument is payable
to bearer, it may be negotiated by transfer of possession alone.” 4 Finally,
under Missouri law, a party entitled to enforce a note is also entitled to
enforce the deed of trust securing that note, regardless of whether that
2

A “blank endorsement” is an endorsement which does not identify a person to whom
the instrument is payable. See Mo.Rev.Stat. § 400.3-205(b).
3
Mo.Rev.Stat.§ 400.3-205(b).
4
Mo.Rev.Stat.§ 400.3-201(b).
6

transfer is recorded. “Possession of the note insures that this creditor, and
not an unknown one, is the one entitled to exercise rights under the deed
of trust, and that the debtor will not be obligated to pay twice.”
Id. at 853 (internal citations omitted). The Note at issue in this case was attached
as an exhibit to the Motion to Dismiss. On the last page of the Note, it states:

Pay to the Order Of
__________________________
WITHOUT RECOURSE
Countrywide Home Loans, Inc., a New York Corporation Doing Business
as America’s Wholesale Lender
The Note is signed by David A. Spector, Managing Director. Defendants state
that BONY was the “holder” of the note at the time of foreclosure and because the note
in this case is endorsed in blank, the Court finds that BONY had the right to enforce it.
As discussed above, the Court finds that plaintiff lacks standing to challenge the
note securitization process or the defendants’ compliance with the Pooling and Service
agreements. As the Court noted in Banks v. HSBC Bank USA, N.A., 2014 WL
4829541, *2 “[w]hen a party lacks standing to assert a claim, the Court lacks subject
matter jurisdiction over such a claim.” Accordingly, the Court hereby finds that plaintiff
has failed to state claim for wrongful foreclosure and thus GRANTS defendants’ Motion
to Dismiss Count II.
2. Count III - Abuse of Process
The elements of an abuse of process claim include the following:
(1) the present defendant made an illegal, improper, perverted use of
process, a use neither warranted nor authorized by the process; (2) the
defendant had an improper purpose in exercising such illegal, perverted or
improper use of process; and (3) damage resulted.
Stafford v. Muster, 582 S.W.2d 670, 678 (Mo. banc 1979). “The phrase ‘use of process,’
7

appearing in element (1) above, refers to some willful, definite act not authorized by the
process or aimed at an objective not legitimate in the proper employment of such
process.” Id.
In support of this allegation, plaintiff alleges again that defendants never owned
or purchased the note, they never had a right or interest in the note, the sale was void
and defendants improperly reported to the IRS that plaintiff had a tax obligation resulting
from the debt owned at the time of the foreclosure.
Defendants argue that this claim is based on plaintiff’s ownership argument and
her assertion that the defendants did not comply with the Pooling and Service
Agreements. In opposition, plaintiff states that BONY was not the noteholder and
plaintiff owed no debt to BONY at the time of the non-judicial foreclosure. Plaintiff
alleges that BONY was aware that they had no legal right to foreclose on the property
and that plaintiff owed no debt to BONY. Plaintiff claims that she was damaged,
because BONY foreclosed on her property and is still attempting to collect monies for a
non-existent debt. As discussed above, the Court has determined that plaintiff has no
standing to assert a claim that the defendants did not comply with the Pooling and
Service agreement or to challenge the validity of the mortgage securitization. The Court
has also determined that plaintiff’s arguments that defendants did not own or purchase
the note or did not have a right or interest in the note are irrelevant because BONY was
the “holder” of the note at the time of the foreclosure and because the note was
endorsed in blank, BONY was entitled to enforce it. Accordingly, the Court finds that
because plaintiff has failed to show that the defendants used an illegal, improper or
perverted use of process in the non-judicial foreclosure of the property at issue, plaintiff

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has failed to state a claim for Abuse of Process. Accordingly, defendants’ Motion to
Dismiss Count III is hereby GRANTED.

3. Negligent Misrepresentation5
In order to state a claim for negligent misrepresentation plaintiff must allege:
(1) speaker supplied information in the course of his business or because
of some other pecuniary interest; (2) due to speaker’s failure to exercise
reasonable care or competence in obtaining or communicating this
information, the information was false; (3) speaker intentionally provided
the information for the guidance of a limited group of persons in a
particular business transaction; (4) listener justifiably relied on the
information; and (5) that as a result of listener’s reliance on the statement,
he/she suffered a pecuniary loss.
Miller v. Big River Concrete, L.L.C., 14 S.W.3d 129,133 (Mo.App. 2000).
In the Amended Complaint, plaintiff alleges that BANA provided mailings to her
stating that BONY was the holder of the note. Plaintiff argues that BONY failed to
comply with the Pooling and Service Agreements during the securitization process and
thus they never owned or purchased the note. Plaintiff asserts that BANA failed to
exercise reasonable care or competence in communicating that BONY was the holder
of the note and intentionally provided this information for the guidance of the collective
defendants to pursue a wrongful foreclosure against her. Plaintiff alleges that she relied
on the information that BONY was the holder and has suffered damages.
Defendants argue that this claim is based on the Pooling and Service
Agreements, which plaintiff has no standing to challenge and the ownership
agreements, which are legally irrelevant. In opposition, plaintiff alleges that BANA failed

5

The Negligent Misrepresentation claim is listed as Count One, although numerically it
is the third count which plaintiff asserts against BANA.
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to exercise care and communicated false information to her that BONY held title or
possession of title at the time of the foreclosure. However, this claim is also based on
the ownership argument which the Court has previously rejected. Accordingly, because
the Court has determined that BONY was the “holder” of the note at the time of the
foreclosure, there was no false information communicated to plaintiff and she cannot
state a claim for negligent misrepresentation.
4. Count I -Declaratory Judgment
In her counts for Declaratory Judgment against BANA and BONY, plaintiff
reasserts her allegations regarding failure to comply with the Pooling and Servicing
Agreements and lack of title or possession of title. Plaintiff then requests that the Court
set aside the non-judicial foreclosure.
Section 2201(a) of Title 28 provides in part:
In a case of actual controversy within its jurisdiction, except with respect to
Federal taxes . . . any court of the United States, upon the filing of an
appropriate pleading, may declare the rights and other legal relations of
any interested party seeking such declaration, whether or not further relief
is or could be sought.
28 U.S.C. §2201(a). In the case In re MSP Aviation, LLC, 531 B.R. 795, 804 (D.Minn.
June 5, 2015), the Court noted, “[a] declaratory judgment is a remedy, not a cause of
action. See, e.g., Onvoy, Inc. v. ALLETE, Inc., 736 N.W.2d 611, 617-18 (Minn.2007)(a
declaratory judgment action may be maintained only where there is a justiciable
controversy); Buck v. American Airlines, Inc., 476 F.3d 29, 33 n.3 (1st Cir.2007)(noting
that the Declaratory Judgement Act, 28 U.S.C.§ 2201 ‘creates a remedy, not a cause of
action.’).”
In the instant case, the Court finds that plaintiff has failed to state a claim for

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declaratory judgment. Plaintiff requested that the Court set aside the non-judicial
foreclosure because of the alleged failures of defendants to comply with the Pooling &
Service Agreements and also because they neither held the title nor had possession of
the title. However, as discussed above, the Court has found that plaintiff had no basis
to challenge the foreclosure on these grounds. Accordingly, plaintiff’s claims for
declaratory judgment must also be dismissed. See Lara v. Federal Nat. Mortg. Ass’n,
Civ. No. 13-676 (SRN/AJB), 2013 WL 3088728 at *3 (D.Minn. June 18, 2013)(finding
that were plaintiff had failed to state a substantive claim, the amended complaint also
failed to state a claim for declaratory judgment)(citing Weavewood, Inc. v. S&P Home
Invs.,LLC, 821 N.W.2d 576, [579] (Minn.2012)(“A declaratory judgment is a ‘procedural
device’ through which a party’s existing legal rights may be vindicated so long as a
justiciable controversy exists.”)). Accordingly, the Court hereby GRANTS defendants’
Motion to Dismiss Count I – Declaratory Judgment.
B. South’s Motion to Dismiss
1. Count II - Wrongful Foreclosure/ Count I- Declaratory Judgment
Plaintiff alleges that South executed the non-judicial foreclosure as the trustee.
Plaintiff asserts that the non-judicial foreclosure was void for the same reasons
discussed above – failure to comply with the Pooling and Service Agreements during
the securitization process and also because the defendants never owned, purchased or
had a right or interest in the note. For the reasons which were discussed above, the
Court finds that plaintiff lacks standing to assert a claim for wrongful foreclosure against
South, the trustee. Because plaintiff has no standing to assert this claim, she also
cannot assert a claim for declaratory judgment. Accordingly, defendant South’s Motion

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to Dismiss Counts I and II is hereby GRANTED.
2. Count III – Defamation
Plaintiff alleges that because BONY failed to comply with the Pooling and Service
Agreements, defendants did not have title or possession of title as trustee due to
defects in the securitization process. Plaintiff asserts that defendant made written and
on-line statements which contained false and defamatory statements that plaintiff was in
default. Plaintiff alleges that defendant was negligent in making these statements and
failed to use reasonable care as to the truth or falsity of the statements and she suffered
damages. (Amended Complaint, ¶¶ 32-39).
In order to state a claim for defamation, plaintiff must allege: “1) publication, 2) of
a defamatory statement, 3) that identifies the plaintiff, 4) that is false, 5) that is published
with the requisite degree of fault, and 6) damages the plaintiff’s reputation.” Nigro v. St.
Joseph Med. Ctr., 371 S.W.3d 808, 818 (Mo.App. 2012).
South states that the defamation claim should be dismissed because Missouri
law does not impose any duty on trustees to investigate whether the sale is proper or
not. South alleges that a trustee’s duty is limited only to “conducting a fair and impartial
foreclosure sale.” Killion v. Bank Midwest, N.A., 987 S.W.2d 801, 813 (Mo.App.1998).
In Hammond v. First Magnus Corp., No. 14-0032-CV-W-ODS, 2014 WL 1374826
(W.D.Mo. Apr. 8, 2014), the Court stated that “[p]laintiff has failed to raise a cause of
action if they are alleging that [the trustees] failed to investigate the properties’ titles
because a trustee may proceed without investigating unless the trustee has actual
knowledge of anything that would legally prevent the foreclosure.” Id. at *3. In her
suggestions in opposition, plaintiff acknowledges, “that Missouri law does not place a

12

duty on a trustee to investigate the veracity of instructions it receives from a lender its
successors and assigns.” (Doc. # 86, p.4). However, plaintiff argues that this has no
application to her causes of action because South was not the trustee at the time of
publication or non-judicial foreclosure. In reply, South states that plaintiff has failed to
plead facts suggesting how it would or could have known about or suspected that BANA
and BONY had not complied with the Pooling and Service agreement or did not own the
note at the time of the foreclosure sale. South states that plaintiff’s acknowledgement
that South did not have a duty to investigate undermines all of her allegations against it.
The Court agrees and finds that plaintiff has failed to state a claim for defamation
against South. Accordingly, South’s Motion to Dismiss Count III – Defamation is hereby
GRANTED.
C. Plaintiff’s Motion for Leave to Amend
On September 14 and 16, 2015, plaintiff filed four separate documents (Docs. #
162,165, 166 & 167). In these various pleadings, plaintiff added additional counts
against the defendants currently named in the petition, removed other counts and
named an additional defendant. Pursuant to the Scheduling and Trial Order, the
deadline for leave to either join additional parties or to amend the pleadings was August
3, 2015. The Court informed plaintiff in an order dated September 22, 2015 that the
pleadings would not be considered as either amending the petition or adding any
additional defendants. If she wished to file an Amended petition, plaintiff was directed to
file a motion asking for leave to do so and explaining the reasons she wished to amend
the petition and why the request to amend was not timely filed.
On September 25, 2015, plaintiff filed the present Motion for Leave to Amend

13

(Doc. # 191). In the motion, plaintiff alleges that she has learned that the “promissory
note” at issue in this case is not in fact a promissory note because it does not adhere to
the Missouri statutes. Instead, she alleges that the note is non-negotiable and is
considered a security pursuant to 15 U.S.C. §78c Section 10. Additionally, plaintiff
alleges that she can now prove that she funded the loan with her own credit and
Countrywide Home Loans, could not have funded the loan because the National
Currency Act declares that a bank cannot lend its own credit. Plaintiff also states that
she was unaware that she could exercise her rights under the Federal Truth in Lending
Act, 15 U.S.C. § 1635 and Regulation Z.
In circumstances where a party seeks leave to amend a pleading
outside the deadline established by the court’s scheduling order, the party
must satisfy the good cause standard of Rule 16(b)(4), rather than the
more liberal standard of Rule 15(a). Sherman v. Winco Fireworks, Inc.,
532 F.3d 709, 716 (8th Cir.2008). Under Eighth Circuit law, “ a motion for
leave to amend filed outside the district court’s Rule 16(b) scheduling
order requires a showing of good cause.” Williams v. Tesco Servs. Inc.,
719 F.3d 968, 977 (8th Cir.2013). In order to meet the “good cause”
requirement, a party must establish “‘diligence in attempting to meet the
order’s requirements.’ “ Sherman, 532 F.3d at 716-17 (quoting Rahn v.
Hawkins, 464 F.3d 813, 822 (8th Cir.2006)). In addition, leave to amend is
properly denied when the proposed amendment would be futile. See Zutz
v. Nelson, 601 F.3d 842, 852 (8th Cir.2010). And a proposed amendment
is deemed futile when “the district court reache[s] the legal conclusion that
the amended complaint could not withstand a motion to dismiss under
Rule 12(b)(6).” Id. at 850 (citations omitted).
Wagner v. City of St. Louis Dept. of Public Safety, No. 4:12CV01901AGF, 2014 WL
3529678, *2 (E.D.Mo. July 16, 2014).
In the instant case, the Court finds that plaintiff has failed to meet the “good
cause” standard for amendment of her petition. In Croskey v. County of St. Louis, No.
4:14CV00867ERW, 2015 WL 5885806, (E.D.Mo. Oct. 8, 2015), the Court stated that
“[g]ood cause requires a change in circumstance, law, or newly discovered facts. Hartis
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v. Chicago Title Ins. Co., 694 F.3d 935, 948 (8th Cir.2012). ‘The primary measure of
good cause is the movant’s diligence in attempting to meet the order’s requirements.’
Sherman [v. Winco Fireworks, Inc.], 532 F.3d at 716 (quoting Rahn v. Hawkins, 464
F.3d 813, 822 (8th Cir. 2006)).”
This case was removed on March 5, 2015. The Scheduling Order was entered
on July 15, 2015, setting the deadline to join additional parties and to amend the
pleadings as August 3, 2015, a date which had been agreed to and suggested by the
parties. Plaintiff offers no explanation as to why she could not have filed her Motion to
Amend before the August 3, 2015 deadline, other than a reference to the fact that she
does not have a legal background and accepted the use of the term “promissory note”
literally in reference to the case. She states that her “newly acquired knowledge and
evidence” serves to further substantiate her original allegations and prove additional
causes of action. However, as other courts have noted, a plaintiff’s “pro se
representation does not excuse [her] from complying with court orders or the Federal
Rules of Civil Procedure.” Salau v. Jones, No. 2:14-CV-04307-NKL, 2015 WL 5999781,
*3 (W.D.Mo. Oct. 13, 2015). Although plaintiff alleges that she recently acquired this
information, she does not allege that such information was unattainable or unknowable
or that she could not have investigated these potential causes of action before the
deadline. Accordingly, the Court finds that plaintiff has failed to show good cause for
amending her petition.
However, even if the Court were to find that plaintiff had shown good cause, the
Court finds that plaintiff’s Motion to Amend should be denied because the proposed
additional claims would be futile. In Witte v. Culton, No. 4:11CV02036ERW, 2012 WL

15

5258789 (E.D.Mo. Oct. 24, 2012), the Court stated, “[u]nder the liberal amendment
policy of Rule 15(a), a district court’s denial of leave to amend pleadings is appropriate
only in those limited circumstances in which undue delay, bad faith on the part of the
moving party, futility of the amendment, or unfair prejudice to the non-moving party can
be demonstrated. Roberson v. Hayti Police Dept., 241 F.3d 992, 995 (8th Cir.2001).” Id.
at *2.
Plaintiff seeks leave to amend her petition to claim that her Adjustable Rate Note
is not a promissory note under the UCC. Missouri law clearly provides that a note is a
negotiable instrument under Missouri law. See Fannie Mae Mortg. Ass’n. v. Conover,
428 S.W.3d 661, 669 (Mo.App. 2015). Thus, it would be futile to allow plaintiff to assert
a claim which is contrary to Missouri law.
Plaintiff also seeks leave to amend her petition to assert that “Countywide
Home Loans, Inc. (dba America’s Wholesale Lender) did not fund the loan because
such would have been in violation of The National Currency Act, 12 U.S.C. §§ 27, 28 &
53, which declares that a bank cannot lend its own credit.” (Proposed Amended
Petition, ¶ 8). Section 27 of the National Banking Act relates to certificates of authority
to commence banking. Section 28 of the statute has been repealed and Section 53
states only that “all of the capital stock of every national banking association shall be
paid in before it shall be authorized to commence business.” 12 U.S.C. § 53. The Court
finds that none of these sections describe a cause of action which plaintiff may assert
against a financial institution. Additionally, as in Taylor v. Ocwen Loan Servicing, LLC,
No. 2:12-CV-107-SA-JMV, 2013 WL 494076, *4 (N.D.Miss. Feb. 7, 2013) vacated in
part on other grounds, 2014 WL 280399 (N.D.Miss. Jan. 24, 2014),“[plaintiff] provides

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no case law or supporting facts to show that she has a private right to sue Defendants
under the National Currency Act.” Thus, the Court finds that it would be futile to allow
plaintiff to amend her petition to assert a claim under this statute.
Plaintiff also seeks leave to add a claim under the Federal Truth in Lending Act,
15, U.S.C. § 1635 and Regulation Z, arguing that she rescinded the loan by rescinding
her signature from the Deed of Trust due to lack of full disclosure and fraud. As the
Court in Taylor explained:
The TILA is a federal consumer protection statute that provides
consumers with a cause of action against creditors who fail to make
required disclosures. 15 U.S.C. §§ 1601 et seq. However, Section 1635,
which allows the remedy of rescission, does not apply to ‘residential
mortgage transactions.’ See 15 U.S.C. § 1635 (e). Furthermore, TILA
claims for rescission are subject to a three year statue of repose. 15
U.S.C. §§ 1635(f). This limitations period is not subject to equitable tolling.
Id. at *3. In the instant case, plaintiff closed her loan on February 15, 2005, over
ten years ago. The same three year period also applies to claims under Regulation Z.
See Hartman v. Smith, 734 F.3d 752,758 (8th Cir. 2013). Therefore, the Court also finds
that it would be futile to allow plaintiff to amend her petition to assert any claims under
these statutes.
Plaintiff also attempts to assert claims against the defendants for constructive
fraud, telecommunications fraud, mail fraud, fraud by conversion and fraud by
inducement. Fed.R.Civ.P. 9(b) states in part: “[i]n alleging fraud or mistake, a party
must state with particularity the circumstances constituting fraud or mistake.” In Wivell
v. Wells Fargo Bank, N.A., 773 F.3d 887 (8th Cir.2014), the Court noted:
“To satisfy the particularity requirement of Rule 9(b), the complaint must
plead such facts as the time, place, and content of the defendant’s false
representations, as well as the details of the defendant’s fraudulent acts,
including when the acts occurred, who engaged in them, and what was
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obtained as a result.” United States ex rel Joshi v. St. Luke’s Hosp., Inc.,
441 F.3d 552, 556 (8th Cir.2006). “Put another way, the complaint must
identify the ‘who, what, where, when and how’ of the alleged fraud.” Id.
(quoting United States ex rel. Costner v. URS Consultants, Inc., 317 F.3d
883, 888 (8th Cir.2003)).
Id. at 898. In the instant case, plaintiff’s proposed amended petition is completely
devoid of any of the specifics relating to her fraud claims. Accordingly, the Court finds
that it would be futile to allow plaintiff to amend her petition, because she has not
sufficiently plead any of her fraud claims against the defendants.
D. Plaintiff’s Motion to Remand
Plaintiff argues that this case should be remanded because there is no diversity
jurisdiction as defendant South is a citizen of the State of Missouri. Plaintiff alleges that
her claims of wrongful foreclosure, declaratory judgment, defamation, constructive
fraud, telecommunications fraud and mail fraud are well supported and valid causes of
action. Plaintiff alleges that she did not fraudulently join South and the case should be
remanded so she can assert her claims against South in state court. The Court however
disagrees. As discussed above, the Court finds that plaintiff has no standing to assert
any claims against defendant South. Accordingly, plaintiff’s Motion to Remand is
hereby DENIED (Doc. # 252).
E. Plaintiff’s Motion to Reconsider
There is no specific rule which references Motions to Reconsider in the Federal
Rules of Civil Procedure. Courts “typically construe such a filing as a Rule 59 (e) motion
to alter or amend the judgment or as a Rule 60(b) motion for relief from judgment.”
Ackerland v. United States, 633 F.3d 698,701 (8th Cir.2011). “[A] Rule 59(e) motion
serves the limited function of correcting manifest errors of law or fact or presenting

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newly discovered evidence. Holder v. United States, 721 F.3d 979,986 (8th Cir.2013).
Such a motion cannot be used to introduce new evidence, tender new legal theories, or
raise arguments which could have been offered or raised prior to entry of judgment. Id.”
Williams v. Raynor Rensch & Pfieffer, No. 8:11-CV-446, 2015 WL 3764838, *1 (D.Neb.
June 16, 2015). In her Motion to Reconsider plaintiff states that the Court’s December
8, 2015 Order failed to acknowledge the pending Motion to Remand or rule it before
rendering judgment. Plaintiff also states that the Motion to Remand clarifies that the
case was wrongfully removed and the court does not have jurisdiction. Plaintiff then
proceeds to present arguments which she previously raised during briefing on the
motions to dismiss. As discussed above, the Court has explained why the Motion to
Remand was not addressed in the December 8, 2015 Order. The Court has now
considered and denied the Motion to Remand. Plaintiff’s motion presents no other
grounds which would justify granting relief pursuant to Fed.R.Civ.P. 59(e). Accordingly,
the Court hereby DENIES plaintiff’s Motion to Reconsider (Doc. # 259).
F. Plaintiff’s Motion for Judicial Notice
In her Motion for Judicial Notice, plaintiff once again reiterates arguments which
she has previously raised and asserts that she was somehow treated unfairly by the
Court. As discussed above, due to a delay in the Clerk’s office, plaintiff’s Motion to
Remand was not docketed until December 11, 2015, three days after the Order ruling
the other pending motions was issued. Additionally, this delay in docketing also caused
the December 8, 2015 order to be delayed in being mailed to plaintiff. These delays,
although regrettable were not intentional. Plaintiff also argues that she was prejudiced
because the Court considered BONY’s email request regarding inability to schedule

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depositions, despite a statement in the Scheduling Order stating that email was not a
viable method to contact plaintiff. However, the Scheduling Order states nothing about
how plaintiff shall be contacted. Accordingly, because the Motion for Judicial Notice
presents arguments which have previously been considered and rejected by the Court,
the Court hereby DENIES plaintiff’s Motion for Judicial Notice (Doc. # 261).
IV. CONCULSION
Accordingly, because the Court has determined that plaintiff’s amended petition
fails to state any claims against the defendants. The Court hereby GRANTS Defendant
South’s Motion to Dismiss (Doc. # 71); GRANTS BANA and BONY’s Motion to Dismiss
(Doc. # 74); DENIES AS MOOT plaintiff’s motions in limine (Docs. 116,117,118,119 and
126); DENIES AS MOOT BONY and BANA’s Motions to Stay Briefing on the Motions in
Limine (Doc. # 158, 160); DENIES AS MOOT BANA’s Motion for Extension of Time to
File Response to Plaintiff’s Interrogatories (Doc. # 159); DENIES AS MOOT Plaintiff’s
Motions to Compel Discovery (Doc. # 179, 182, 210, 215, 227, 244, 257,258); DENIES
AS MOOT plaintiff’s Motion for In Camera Inspection (Doc. # 181), DENIES plaintiff’s
Motion for Leave to Amend (Doc. #191); DENIES plaintiff’s Motion for Reconsideration
(Doc. # 198) and GRANTS BONY’s Motion to Substitute Attorney (Doc. # 121); DENIES
Plaintiff’s Motion to Remand (Doc. # 252); DENIES Plaintiff’s Motion to Reconsider
(Doc. # 259) and DENIES Plaintiff’s Motion for Judicial Notice (Doc. # 261).

Date: December 30, 2015
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge 

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