Behrens v. GMAC Mortgage, LLC

Filing 20

MEMORANDUM AND ORDER - IT IS ORDERED: 1. The plaintiff shall have until October 4, 2013, to do the following: a. file sufficient evidence with the Court, or allege facts in an amended complaint, showing that this case is not moot; b. file an amended complaint establishing the plaintiff's standing to pursue his claim; and c. file an amended complaint alleging facts supporting the applicability of the FDCPA and/or SFMFA to this case. 2. In order to be considered, any response the plaintiff wi shes to file should be received by the Court on or before October 4, 2013. The Court intends that time to include the time necessary for delivery by mail. 3. Absent effective compliance with this order, the Court may dismiss the plaintiff's comp laint in part or in full without further notice. 4. The Clerk of the Court is directed to set a case management deadline in this matter with the following text: October 4, 2013: deadline for plaintiff to file amended complaint and establish that case is not moot. 5. The Court reserves the right to conduct further review of the plaintiff's claims pursuant to 28 U.S.C. § 1915(e)(2) after the plaintiff addresses the matters set forth in this Memorandum and Order. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRYAN BEHRENS,
Plaintiff,

8:13-CV-72

vs.
MEMORANDUM AND ORDER
GMAC MORTGAGE, LLC,
Defendant.
The plaintiff filed his complaint (filing 1) in this matter on March 4,
2013, and has now paid the final installment of his initial partial filing fee.
The Court now conducts an initial review of the complaint to determine
whether summary dismissal is appropriate pursuant to 28 U.S.C. § 1915(e)
and the Court's independent obligation to consider its subject matter
jurisdiction where there is a reason to suspect that such jurisdiction is
lacking. See Hart v. United States, 630 F.3d 1085, 1089 (8th Cir. 2011); see
also Bacon v. Neer, 631 F.3d 875, 877 (8th Cir. 2011).
The initial question is whether this case is moot. "Through the passage
of time and the occurrence of irrevocable events, disputes may disappear so
that federal courts no longer can grant effective relief. When this happens,
the issue is moot and a federal court has no power to decide the issue."
Lebanon Chem. Corp. v. United Farmers Plant Food Inc., 179 F.3d 1095, 1099
(8th Cir. 1999) (citation omitted); see Calderon v. Moore, 518 U.S. 149, 150
(1996). The relief sought by the plaintiff's complaint is an injunction stopping
a foreclosure sale that was, according to the complaint, scheduled to occur on
March 15, 2013. Filing 1 at 1. Thus, a question of mootness appears on the
face of the complaint.
And the foreclosure at issue has already occurred, as evidenced by
public records that the Court finds to be judicially noticeable. See Noble Sys.
Corp. v. Alorica Cent., 543 F.3d 978, 982 (8th Cir. 2008); see also, Bacon, 631
F.3d at 877-78; Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005).
Pottawattamie County, Iowa property records (attached to this order for the
benefit of the plaintiff and any reviewing court) establish that the property
has been sold and deeded to a third party. As a result, the Court can no
longer grant the relief requested in the plaintiff's complaint, and this case is
moot. Mootness relates to justiciability, presenting a jurisdictional bar to the
Court's power to hear the case. Bacon, 631 F.3d at 877.

It is unfortunate that the sale took place despite the pre-sale filing of
the plaintiff's complaint. But, it must be noted, that delay was occasioned by
the plaintiff's procedural choices in filing his in forma pauperis complaint.
Had the plaintiff filed this claim as a motion in the related receivership
action, case no 8:8-cv-13, formal service of process and a filing fee would have
been unnecessary. Nor did the plaintiff ask for a temporary restraining order,
which might have been addressed ex parte. See Fed. R. Civ. P. 62(b). But
when the plaintiff filed a separate complaint seeking an injunction, service of
process was required. See Fed. R. Civ. P. 65(a); see generally Fed. R. Civ. P. 5.
And because the plaintiff is a prisoner filing in forma pauperis, payment of
the plaintiff's initial partial filing fee was also required. This case may be
moot as a result, but that process was implemented by Congress and the
Court is not at liberty to ignore it. See 28 U.S.C. § 1915(e).
Beyond the question of mootness, other issues appear on the face of the
plaintiff's complaint. There is also a substantial question regarding the
plaintiff's standing to pursue the claim. The stay upon which the plaintiff
relies, see case no. 8:8-cv-13 filings 85 and 107, was not entered for the
plaintiff's benefit: it was entered to protect the receivership that was directed
to "take immediate possession and control" of all assets belonging to the
plaintiff. See case no. 8:8-cv-13 filing 85 at 4. Given the scope of the
receivership, and the sweeping authority conferred on the receiver, it is
highly questionable whether the plaintiff has standing to seek enforcement of
the stay with respect to receivership assets: the receiver, and not the
plaintiff, is now the real party in interest with respect to the real property at
issue and any proceeds from its sale. Cf. First State Bank of N. Cal. v. Bank
of Am., N.T. & S.A., et al., 618 F.2d 603, 604 (9th Cir. 1980). And standing, of
course, is also a fundamental element of federal court jurisdiction. U.S. v.
Fast, 709 F.3d 712, 715 (8th Cir. 2013).
The Court also notes the plaintiff's citations to the Fair Debt Collection
Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p, and the Single Family
Mortgage Foreclosure Act (SFMFA), 12 U.S.C. §§ 3751-3768. But the FDCPA
generally does not apply to a creditor attempting to collect its own debts (as
opposed to a third-party collection agency). See 15 U.S.C. § 1692(6); see also
Marshall v. Deutsche Bank Nat. Trust. Co., 445 Fed. Appx. 900, 901 (8th Cir.
2011). And the SFMFA only applies to foreclosure proceedings instituted by
the Secretary of Housing and Urban Development on property held by or
subject to a loan guaranteed by the Secretary. See 12 U.S.C. § 3752(10); see
also Termarsch v. Homeq Servicing Co., 399 F. Supp. 2d 827, 829 (W.D. Mich.
2005). The plaintiff does not allege facts from which it could be reasonably
inferred that the FDCPA or SFMFA are applicable, and the complaint thus
fails to state a claim for relief under those acts.
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To summarize: the primary defect in the plaintiff's complaint is that
the relief it seeks can no longer be granted by the Court, so this case is moot.
Second, the orders upon which the plaintiff relies, entered by this Court in
the receivership action, also authorized the receiver to take possession and
control of the plaintiff's assets—meaning that the plaintiff would lack
standing to enforce the stay in defense of those assets, because the receiver is
the real party in interest. Third, the complaint alleges no facts establishing
that the defendant is a "debt collector" within the meaning of the FDCPA.
And finally, the complaint alleges no facts establishing that the SFMFA is
applicable to this case. The Court will require the plaintiff to file an amended
complaint alleging facts that support federal court jurisdiction and stating a
federal claim for relief. And the plaintiff shall be required to allege facts or
file evidence with the Court establishing that this case is not moot. This
matter will not proceed until the plaintiff does so.
IT IS ORDERED:
1.

The plaintiff shall have until October 4, 2013, to do the
following:
a.

file sufficient evidence with the Court, or allege facts
in an amended complaint, showing that this case is
not moot;

b.

file an amended complaint establishing the plaintiff's
standing to pursue his claim; and

c.

file an amended complaint alleging facts supporting
the applicability of the FDCPA and/or SFMFA to this
case.

2.

In order to be considered, any response the plaintiff wishes
to file should be received by the Court on or before October
4, 2013. The Court intends that time to include the time
necessary for delivery by mail.

3.

Absent effective compliance with this order, the Court may
dismiss the plaintiff's complaint in part or in full without
further notice.

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4.

The Clerk of the Court is directed to set a case
management deadline in this matter with the following
text: October 4, 2013: deadline for plaintiff to file amended
complaint and establish that case is not moot.

5.

The Court reserves the right to conduct further review of
the plaintiff’s claims pursuant to 28 U.S.C. § 1915(e)(2)
after the plaintiff addresses the matters set forth in this
Memorandum and Order.

Dated this 28th day of August, 2013.
BY THE COURT:

John M. Gerrard
United States District Judge

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