Anderson et al v. Ocwen Loan Servicing, LLC et al

Filing 16

ORDER as to defendants' motions, 5 6 , on or before 6/30/17, the estate of plaintiff Hazel Ilene Anderson shall obtain the services of counsel or court will dismiss the claims of Hazel Ilene Anderson without further notice. Defendants' de adline for answering plaintiffs' complaint is stayed pending determination of whether the estate of Hazel Ilene Anderson is a party to this action and further order of court. Court denies plaintiffs' first and second causes of action and st rikes plaintiffs' third cause of action. Defendant American Modern Insurance Group's motion for a protective order is granted 10 . Clerk directed to mail a copy of this order to David R. Anderson, 7040 North Hampton Road, Lincoln, NE 68506. Ordered by Magistrate Judge Cheryl R. Zwart. (Copy mailed as directed)(CCB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID R. ANDERSON, and H. ILENE
ANDERSON,
4:17CV3054
Plaintiffs,
ORDER

vs.
OCWEN LOAN SERVICING, LLC, and
AMERICAN MODERN INSURANCE
GROUP,
Defendants.

Plaintiffs have filed a pro se complaint. Defendants have moved to strike
or for a more definite statement, and to dismiss any claims by H. Ilene Anderson,
deceased, (Filing Nos. 5 and 6); and Defendant American Modern Insurance
Group’s (“American Modern”) has moved for a protective order, (Filing No. 10).
Plaintiffs have not responded to the motions and the deadline for doing so has
passed. The motions are deemed fully submitted.

1.

Motion to Dismiss.

Defendants move to dismiss any claims by H. Ilene Anderson, explaining
Plaintiff Hazel Ilene Anderson is not the real party in interest and lacks capacity
to sue and David R. Anderson lacks capacity to sue on behalf of Hazel Ilene
Anderson. David R. Anderson is not an attorney and he cannot represent the
interests of any other individual in this court. Plaintiff Hazel Ilene Anderson is
deceased, and any claims filed on her behalf must be filed by her estate through
her personal representative and/or the person appointed by the probate court to
pursue the claim. An estate, cannot litigate its action in this forum without

representation by licensed counsel. Knoefler v. United Bank of Bismarck, 20
F.3d 347, 347-48 (8th Cir. 1994). As such, the claims of Plaintiff Hazel Ilene
Anderson will be dismissed unless an attorney timely enters an appearance on
her behalf.
2.

Motion to Strike and/or Make More Definite and Certain.

Defendants argue they cannot determine what Plaintiffs’ complaint is
alleging and against whom those claims are made. Liberally construing the pro
se complaint, (Haines v. Kerner, 404 U.S. 519 (1972)):
 Plaintiffs’ first claim is against only Defendant Ocwen Loan Servicing, LLC,
(“Ocwen”) and alleges Ocwen improperly serviced a loan secured by a
deed of trust on the property located at 7040 North Hampton Road,
Lincoln, Nebraska (the “Property”); specifically alleging that Ocwen failed
to properly apply payments and provide accurate pay off amounts;
increased the interest rate on the loan without justification and in violation
of its terms; improperly posted late fees to the account; and is threatening
to foreclose without first providing a Notice of Default or Notice of Sale.
 Plaintiffs’ second claim is against only Defendant American Modern and
alleges American Modern breached an insurance contract with Plaintiffs by
failing to provide insurance coverage for roof damage to the Property
arising from a May 2016 hail storm.
 Plaintiffs’ third claim does not allege a claim against either Defendant: It
appears to be denying affirmative defenses that Plaintiffs anticipate
Defendants will raise in their respective answers.

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The court will grant Defendants’ motion to strike as to the “Third Cause of
Action.” It does not request relief of any kind and serves only to confuse the
issues. As to first and second claims, striking the claims would be improper and
there is no current need to make them more definite and certain.

3.

Motion for Protective Order.

Plaintiffs served written discovery on Defendant American Modern before
the state court Complaint was removed to this forum. Under the federal rules,
discovery is premature at this time and Plaintiffs’ written discovery will be
stricken.

Accordingly,
IT IS ORDERED:
1)

As to Defendants Motions, Filing Nos. 5 and 6:
a)

On or before June 30, 2017, the Estate of Plaintiff Hazel Ilene
Anderson shall obtain the services of counsel and have that
attorney file an appearance on its behalf, in the absence of
which the court will dismiss the claims of Hazel Ilene
Anderson without further notice.

b)

Allegations 1-4 of Plaintiff’s “Third Cause of Action” are
stricken.

c)

As to Plaintiffs’ First and Second Causes of Action,
Defendants’ Motions to Strike and to Make More Definite and
Certain are denied.
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2)
Defendants’ deadline for answering or otherwise responding to
Plaintiffs’ complaint is stayed pending a determination of whether the
Estate of Plaintiff Hazel Ilene Anderson is a party to this action and further
order of the court.
3)
Defendant American Modern Insurance Group’s motion for a
protective order, (Filing No. 10), is granted, and the written discovery
served in the state court action is stricken.
4)
The clerk shall mail a copy of this order to David R. Anderson, 7040
North Hampton Road, Lincoln, Nebraska 68506
June 9, 2017.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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