Nwonwu v. Wheeler

Filing 31

ORDER finding as moot 29 Motion for Leave to Proceed in Forma Pauperis; finding as moot 30 Motion to Stay Discovery; granting in part and denying in part 19 Motion to Dismiss for Failure to State a Claim. The Clerk's Office is ordered to mail a copy of this order to Plaintiff's address of record. Signed District Judge M. Douglas Harpool on November 21, 2022. (CLC)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
CORDELIA O. NWONWU,

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Plaintiff,
v.
AMANDA WHEELER,
Defendant.

Case No. 6:22-cv-03063-MDH

ORDER
Before the Court is Defendant Amanda Wheeler’s (“Defendant Wheeler’s”) Motion to
Dismiss or for More Definite Statement. (Doc. 12). Pro Se Plaintiff Cordelia O. Nwonwu
(“Plaintiff”) responded to Defendant Wheeler’s Motion (Doc. 24) and Defendant Wheeler
responded in turn. (Doc. 25). For reasons herein, Defendant’s Motion to Dismiss for Failure to
State a Claim or for More Definite Statement is GRANTED IN PART AND DENIED IN PART.
Plaintiff’s Motion for Leave to Proceed in Forma Pauperis (Doc. 29) is MOOT 1. Defendant
Wheeler’s Motion to Stay Discovery (Doc. 30) is MOOT.

BACKGROUND
Plaintiff filed three separate complaints against various defendants in the United States
District Court for the District of Columbia. (Doc. 1). Due to lack of venue in the District of
Columbia, Plaintiff’s cases were transferred to the Western District of Missouri. (Doc. 3). Though
unclear, Plaintiff appears to generally allege violation of various state and federal laws stemming

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This Court granted Plaintiff’s initial Motion for Leave to Proceed in Forma Pauperis (Doc. 15).
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from a 2019 foreclosure of a residence in Willow Springs, Missouri. (Doc. 1 at 1). Plaintiff’s
allegations about Defendant Wheeler’s involvement in the alleged wrongful foreclosure remain
vague. Plaintiff asserts Defendant conspired with Zachary Johnson, defendant in another of
Plaintiff’s suits. (Doc. 1 at 2). Plaintiff alleges Defendant Wheeler assisted Zachary Johnson in
burglarizing Plaintiff’s home. (Doc. 1 at 2). Plaintiff also appears to claim Defendant Wheeler is
a notary and trustee for a loan Plaintiff received from Zachary Johnson. (Doc. 1 at ¶ 3.1). Plaintiff
further contends Defendant Wheeler, “misrepresented himself/herself to the court as a licensed
attorney when he does not have a license to practice law.” (Doc. 1 at ¶ 8.5). Plaintiff claims,
“Defendant [Wheeler] through the lender/bank dba Zachary S. Johnson demanded that Plaintiff
[provide] her vehicle, a van, as implied as part mortgage payment as understood by Plaintiff.”
(Doc. 1 at ¶ 15.2.f). Plaintiff asserts Defendant Wheeler “enabled” Zachary Johnson, who
continued “illegal debt collection without accounting for Plaintiff’s car in his possession and
Plaintiff’s chapter 7 bankruptcy discharge of all her debts.” (Doc. 1 at ¶ 15.2.f). Plaintiff appears
to claim Defendant Wheeler assisted with the wrongful eviction because Plaintiff Wheeler had
fallen in love with Plaintiff’s “stuff” and “fantasized looting Plaintiff’s property.” (Doc. 1 at ¶¶
15.2.f, 15.3.a). It appears Plaintiff intends to allege the following specific causes of action against
Defendant Wheeler: 1) wrongful foreclosure; 2) violation of the Fair Debt Collection Practices Act
(“FDCPA”); 3) violation of the Truth in Lending Act (“TILA”); 4) breach of contract; 5) violation
of Federal Trust and Lien Laws; 6) slander of title; 7) slander of credit; 8) infliction of emotional
distress. (Doc. 1 at 18-19).
STANDARD
A complaint must contain factual allegations, when accepted as true, sufficient to state a
claim of relief plausible on its face. Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010) (citing

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court “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) (internal citations omitted). The complaint’s factual
allegations must be sufficient to “raise a right to relief above the speculative level,” 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 Atl. Corp v. Twombly, 550 U.S. 544, 545 (2007). “The tenet that
a court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).“Though
pro se complaints are to be construed liberally…they still must allege sufficient facts to support
the claims advanced.” Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004) (citations omitted).

ANALYSIS
At the outset, this Court notes it is questionable whether any allegation in Plaintiff’s complaint
sufficiently implicates Defendant Wheeler so any harm is “fairly traceable” to any alleged action
on the part of Defendant Wheeler. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)
(justiciability requires injury be “fairly traceable” to challenged action). As Defendant Wheeler’s
Motion declines to raise this argument, however, the Court will analyze the substance of each
alleged count.

I.

Wrongful Foreclosure

Defendant Wheeler argues Plaintiff has generally failed to plead a prima facie case of wrongful
foreclosure. (Doc. 20 at 4). Specifically, Defendant Wheeler argues Plaintiff has failed to

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demonstrate she was not in default under the terms of a promissory note secured by a deed of trust,
a requirement for prima facie wrongful foreclosure claims. (Doc. 20 at 4). A wrongful foreclosure
tort action requires Plaintiffs show: “(1) the commencement of a foreclosure by sale (as
distinguished from judicial action) of a deed of trust; (2) that at the time the foreclosure proceeding
began, there was no default on the defendant's part that would give rise to a right to foreclose; so
that (3) the foreclosure is absolutely void.” Union Bank v. Murphy, No. 4:10-CV-00714-DGK,
2012 WL 4404372, at *8 (W.D. Mo. Sept. 24, 2012) (citations omitted). “A plaintiff seeking
damages in a wrongful foreclosure action must plead and prove that when the foreclosure
proceeding was begun, there was no default on its part that would give rise to a right to foreclose.”
Dobson v. Mortg. Elec. Registration Sys./GMAC Mortg. Corp., 259 S.W.3d 19, 22 (Mo. Ct. App.
2008). Though unclear, it appears Plaintiff alleges the foreclosure occurred in June 2019. (Doc. 1
at ¶¶ 15.3, 15.4). Plaintiff asserts she made timely mortgage payments to lender Zachary Johnson
only between January 2012 and December 2014. (Doc. 1 at ¶ 15.2). Plaintiff fails to plead she was
not in default of any mortgage when the foreclosure proceedings appear to have started in June
2019. Accordingly, Plaintiff has failed to make a prima facie case of wrongful foreclosure 2.

II.

FDCPA Violations

Defendant Wheeler argues Plaintiff has generally failed to plead a prima facie FDCPA claim.
(Doc. 20 at 5). Specifically, Defendant Wheeler argues Plaintiff has failed to allege Defendant

Though Plaintiff appears to assert she received a Title 7 bankruptcy discharge of debts, case law is clear
any Title 7 discharge does not apply to a lender’s in rem rights to foreclose property. See In re PenningtonThurman, 499 B.R. 329, 331 (B.A.P. 8th Cir. 2013), aff'd, 559 F. App'x 600 (8th Cir. 2014); Johnson v.
Home State Bank, 501 U.S. 78, 84 (1991).
2

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Wheeler is a debt collector within the meaning of the FDCPA statute. (Doc. 20 at 5). Plaintiff’s
complaint does not appear to specify under which provision of the FDCPA she intends to raise her
claims. Generally, though, an FDCPA claim requires: “(1) the plaintiff is a ‘consumer’ within the
meaning of the statute; (2) the defendant collecting the debt is a ‘debt collector’ within the meaning
of the statute; and (3) the defendant has violated by act or omission a provision of the FDCPA.”
Somlar v. Nelnet Inc., No. 4:16-CV-01037-AGF, 2017 WL 35703, at *2 (E.D. Mo. Jan. 4, 2017)
(citations omitted). A creditor using its own name to collect its own debt fails to qualify as a debt
collector for FDCPA purposes. Duhart v. LRAA Collections, 652 F. App'x 483, 484 (8th Cir. 2016).
It remains difficult to discern Plaintiff’s allegations about Defendant Wheeler’s role in any efforts
to collect debt. Plaintiff appears to assert Zachary Johnson loaned money to Plaintiff and
Defendant Wheeler simply acted as a trustee and notary. (Doc. 1 at ¶ 3.1). The paragraphs of
Plaintiff’s complaint that deal specifically with FDCPA allegations altogether fail to reference
Defendant Wheeler. (Doc. 1 at ¶¶ 2.1-2.9). Elsewhere Plaintiff alleges, “Defendant [Wheeler]
continued illegal debt collection as an accomplice, aiding and abetting the lender/bank dba Zachary
S. Johnson demanding Plaintiff pay even debts officially discharged from the bankruptcy court
and using harassment tactics trespassing, invading, looting, and burglarizing Plaintiff’s real and
personal property.” (Doc. 1 at ¶ 15.2e). The FDCPA statute defines “debt collector” as follows.
Any person who uses any instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of any debts, or who regularly
collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be
owed or due another. 15 U.S.C.A. § 1692a.
Though Plaintiff alleges conspiracy between Defendant Wheeler and lender Zachary Johnson,
Plaintiff fails to assert Defendant Wheeler regularly engages in debt collection. (Doc. 1 at 2). To
the limited extent Plaintiff makes any allegations about Defendant Wheeler’s role in alleged
events, those appear to remain limited to claims about Defendant Wheeler being a notary and
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trustee. (Doc. 1 at ¶ 3.1). Plaintiff’s claim that Defendant Wheeler aided and abetted Zachary
Johnson’s illegal debt collection amounts to only a conclusory statement void of any supporting
facts. (Doc. 1 at ¶ 15.2e). Plaintiff’s pleadings fail to establish Defendant Wheeler is a debt
collector for FDCPA statute purposes.

III.

TILA Violations

Plaintiff argues Defendant Wheeler and Zachary Johnson, “violated the [TILA], Regulation Z,
12 CFR § 226.23, which states that the security agreement signed with a lender can be rescinded
if they have not provided the proper disclosures.” (Doc. 1 at ¶ 3.1). Plaintiff then alleges, “the
original debt was actually zero because the Plaintiff’s financial asset was exchanged for FED’s
promissory notes in an even exchange.” (Doc. 1 at ¶ 3.1). Plaintiff then appears to allege Defendant
Wheeler conspired with Zachary Johnson to mislead the state court by executing an unlawful nonjudicial foreclosure. (Doc. 1 at ¶ 3.1). Plaintiff also claims Defendant Wheeler and Zachary
Johnson misrepresented themselves as licensed attorneys, when in in fact they are not. (Doc. 1 at
¶¶ 3.2, 3.5). Plaintiff offers no specific facts to support these claims. Defendant Wheeler interprets
Plaintiff’s claims to mean Defendant Wheeler violated the TILA by failing to notify Plaintiff of
Plaintiff’s right to rescind a home mortgage transaction. (Doc. 20 at 6). Defendant Wheeler then
argues any rescission the regulation contemplates, fails to include the mortgage at issue in
Plaintiff’s complaint, because the regulation specifically excludes residential mortgage
transactions. (Doc. 20 at 6).
Plaintiff’s complaint leaves little doubt the transaction at issue is a residential mortgage.
Plaintiff’s complaint regularly describes the property as her “home” and references the debt as a
“mortgage”. (Doc. 1 at 1, 2, ¶¶ 15.1, 10.2). Plaintiff also alleges the “loan was to secure personal

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housing for the plaintiff and [her] family.” (Doc. 1 at ¶ 10.3). Defendant Wheeler is correct that
the regulation subsection Plaintiff cites specifically exempts from any right to rescind any
residential mortgage transaction. 12 C.F.R. § 226.23(f)(1). To the extent Plaintiff attempts to allege
Defendant Wheeler violated Plaintiff’s right to rescind contemplated by 12 C.F.R. § 226.23(a),
this Court finds the TILA granted Plaintiff no such right because of the nature of the transaction
at issue. To the extent Plaintiff’s complaint contemplates an alternative TILA violation, this Court
finds Plaintiff’s allegations merely conclusory, void of alleged facts sufficient to state a claim.

IV.

Breach of Contract

Plaintiff appears to allege breach of contract. Specifically, Plaintiff claims, “[Plaintiff] was
never provided a loan; the original debt was actually zero because [Plaintiff’s] financial asset was
exchanged for FED’s promissory notes in an even exchange.” (Doc. 1 at ¶ 13.2). Plaintiff also
claims she, “purchased a home and obtained a mortgage loan from Zachary S. Johnson, in the
approximate amount of $109,500.00.” (Doc. 1 at ¶ 13.1). Plaintiff alleges she made regular
payments on the mortgage only between January 2012 and December 2014. (Doc. 1 at ¶ 15.2).
Plaintiff fails to allege she did not default. Defendant Wheeler argues Plaintiff, “failed to plead
that she performed her obligations under the promissory note and deed of trust.” (Doc. 20 at 7). “It
is elementary that a party to a contract cannot claim its benefit where he is the first to violate it.”
Tony Thornton Auction Serv., Inc. v. Quintis, 760 S.W.2d 202, 204 (Mo. Ct. App. 1988). Plaintiff’s
own allegations make clear she failed to make payments on the mortgage in question, perhaps
precluding a breach of contract claim. On the other hand, Plaintiff alleges Defendant Wheeler
“continued illegal debt collection as an accomplice, aiding and abetting…Zachary Johnson
demanding Plaintiff pay even debts officially discharged from the bankruptcy court and using

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harassment tactics…” (Doc. 1 at ¶ 15.2.e). Plaintiff also alleges Defendant Wheeler worked with
Zachary Johnson to acquire Plaintiff’s vehicle in part payment of the mortgage balance, but the
vehicle’s value was never reflected in the mortgage balance. (Doc. 1 at 15.2.e). It is conceivable
these allegations amount to an alleged contract breach on the part of Defendant as well.

V.

Federal Trust and Lien Laws Violation

Plaintiff claims Defendant Wheeler, “violated Federal Trust and Lien Laws when he/she signed
as trustee without legal authorization.” (Doc. 1 at 19). Defendant Wheeler argues that it remains
unclear what laws Plaintiff refers to, failing to assert any claim for which relief may be granted.
(Doc. 20 at 7). This Court agrees with Defendant Wheeler. Plaintiff’s Count Five allegations are
conclusory and state no cognizable right to relief.

VI.

Slander of Title

Plaintiff asserts Defendant Wheeler, “caused to be recorded various documents including a
Notice of Trustee Sale which has impaired [Plaintiff’s] title which constitutes slander of title.”
(Doc. 1 at 19). Defendant Wheeler argues Plaintiff has failed to allege Defendant Wheeler
published anything with malice. (Doc. 20 at 8). A slander of title claim under Missouri law
requires, “1) some interest in the property, 2) that the words published were false, 3) that the words
were maliciously published, and 4) that [the Plaintiff] suffered pecuniary loss or injury as a result
of the false statement.” Lau v. Pugh, 299 S.W.3d 740, 748–49 (Mo. Ct. App. 2009) (citations
omitted). Malice pleading in a slander of title action requires, “factual allegations sufficient to
create a plausible claim that [a defendant] acted with a reckless disregard for the truth, despite a
high degree of awareness of probable falsity. Dunbar v. Wells Fargo Bank, N.A., 709 F.3d 1254,

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1258 (8th Cir. 2013) (citations omitted). Plaintiff has failed to plead any facts indicating reckless
disregard on the part of Defendant Wheeler.

VII.

Slander of Credit

Plaintiff alleges, “the actions and inactions of the defendant [have] impaired her credit.” (Doc.
1 at 19). Defendant Wheeler argues generally that Missouri courts treat slander of credit claims as
defamation allegations and Plaintiff failed to plead a prima facie case. (Doc. 20 at 8). Defendant
Wheeler is correct that Missouri courts analyze slander of credit allegations through a lens of
defamation. Glanzer v. Bank of Am., N.A., No. 14-0298-CV-W-REL, 2014 WL 6604788, at *11
(W.D. Mo. Nov. 20, 2014). “The elements of a defamation claim are (1) publication, (2) of a
defamatory statement, (3) that identifies the claimant, (4) that is false, (5) that is published with
the requisite degree of fault, and (6) that damages the plaintiff's reputation.” Glanzer v. Bank of
Am., N.A., No. 14-0298-CV-W-REL, 2014 WL 6604788, at *11 (W.D. Mo. Nov. 20, 2014).
Plaintiff simply claims Defendant Wheeler’s actions and inactions have impaired her credit. (Doc.
1 at 19). Plaintiff offers no additional facts in support. Plaintiff’s allegations under Count Seven
are simply conclusory and fail to plead a prima facie defamation case.

VIII. Infliction of Emotional Distress
Plaintiff asserts, “the defendants have intentionally or negligently taken actions which have
caused the plaintiffs severe emotional distress.” (Doc. 1 at 19). Plaintiff offers no additional facts
in support of this claim. Defendant Wheeler argues generally Plaintiff has failed to plead a prima
facie case of either negligent or intentional infliction of emotional distress. This Court agrees,
finding Plaintiff’s claims to be entirely conclusory, void of supporting factual allegations.

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CONCLUSION
For foregoing reasons Defendant Wheeler’s Motion to Dismiss is GRANTED IN PART
AND DENIED IN PART. This Court dismisses with prejudice Plaintiff’s following claims
against Defendant Wheeler: 1) wrongful foreclosure; 2) FDCPA violation; 3) TILA violation; 4)
violation of Federal Trust and Lien Laws; 5) slander of title; 6) slander of credit; 7) infliction of
emotional distress. Plaintiff is ORDERED to re-plead the breach of contract allegation in clear
language with specific facts no later than December 22, 2022. Plaintiff is FURTHER
ORDERED to clearly explain her allegations about the FED promissory note, the vehicle provided
to Defendant Wheeler, and how these relate to Plaintiff’s breach of contract claim.

IT IS SO ORDERED.
Dated: November 21, 2022

/s/ Douglas Harpool______
DOUGLAS HARPOOL
United States District Judge

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