Fontaine v. Citibank, N.A. et al

Filing 51

OPINION AND ORDER by Magistrate Judge Steven P. Shreder GRANTING 46 MOTION to Dismiss Amended Complaint by CitiMortgage, Inc., Citibank, N.A., Citigroup, Inc., Merscorp Holdings, Inc., Mortgage Electronic, U.S. Bank, NA.; and GRANTING 47 MOTION to Dismiss Plaintiff's Amended Complaint by U.S. Bancorp, Inc.. Case is hereby dismissed with prejudice. (ndd, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
JULIE ELICE FONTAINE,
Plaintiff,
v.
CITIBANK, N.A.; CITIMORTGAGE,
INC.; CITIGROUP, INC.; U.S.
BANCORP, INC.; U.S. BANK, NA;
MORTGAGE ELECTRONIC; and
MERSCORP HOLDINGS, INC.,
Defendants.

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Case No. CIV-14-536-SPS

OPINION AND ORDER
This matter comes before the Court on motion by Defendants Citibank,
CitiMortgage, Citigroup, U.S. Bank, Mortgage Electronic, and Merscorp Holdings
[Docket No. 46] and by Defendant U.S. Bancorp, Inc. [Docket No. 47] (collectively,
“Defendants”) to dismiss the Amended Complaint of pro se Plaintiff Julie Elice Fontaine.
Plaintiff sued the Defendants in state court in Wagoner County, alleging violations, inter
alia, of the Truth in Lending Act and the Uniform Electronic Transactions Act, arising
out of a mortgage transaction. The Defendants removed the case to this Court [Docket
No. 3], and have now moved to dismiss the Plaintiff’s Amended Complaint. For the
reasons set forth below, the Court finds that the Motion to Dismiss Amended Complaint
and Incorporated Memorandum of Law by Defendants Citibank, CitiMortgage,
Citigroup, U.S. Bank, MERS, and Merscorp [Docket No. 46] and Defendant U.S.

Bancorp, Inc.’s Motion to Dismiss Plaintiff’s Amended Complaint [Docket No. 47]
should be GRANTED.
BACKGROUND
In her original state court Petition in Wagoner County, Case No. CJ-2014-0355,
the Plaintiff alleged a number of facts related to the acquisition of a mortgage-secured
title to property in Broken Arrow, Oklahoma, and identified six causes of action: fraud
by omission, missing public assignments and violation of Oklahoma law, fraud in the
inducement, violations of the OCC Consent Order (described in detail in the Petition),
violations of 15 U.S.C. § 1641(g), and breach of contract. See Docket No. 3, Ex. 1, pp.
46-49. Upon removal of the case, Defendants filed Motions to Dismiss [Docket No. 1415], and as part of Ms. Fontaine’s Responses,1 she requested leave to file an Amended
Complaint, and further requested permission for her Amended Complaint to be over the
twenty-five page limit [Docket Nos. 35-36]. The Court notes that the proposed Amended
Complaint submitted by Ms. Fontaine was thirty-seven pages in length, but contained
over seventy additional pages of exhibits and was accompanied by a “Memorandum of
Points and Authorities in Support of Plaintiff’s First Amended Complaint for
Expungement of Mortgage and the Note.” This Court entered a Minute Order granting in

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The Plaintiff, proceeding pro se, filed a number of “responses” to the Motions to Dismiss,
titled, in part, “Motion to Strike.” Affording Ms. Fontaine some leeway as a pro se litigant, the
Court construes these “Motions” as the requisite responses to Defendants’ Motions. See United
States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [her] arguments
liberally; this rule of liberal construction stops, however, at the point at which we begin to serve
as [her] advocate.”).
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part and denying in part Ms. Fontaine’s motion to file an Amended Complaint, denying
her motion to exceed the page limitation, and directing her to:
[F]ile within 14 days an Amended Complaint in compliance with Fed. R.
Civ. P. 8, i. e., “a short and plaint statement of the claim showing that the
pleader is entitled to relief [and] a demand for the relief sought.” Plaintiff
must set forth the legal theories on which she is suing, the wrongdoing she
claims was committed by the Defendants, the injury she suffered as a result
of such misconduct, the damages she suffered as the result of such injury,
and any non-monetary relief to which she may be entitled.
Docket No. 38. On September 8, 2015,2 Ms. Fontaine filed her Amended Complaint
against the Defendants. The Defendants have now renewed their Motions to Dismiss,
noting that Ms. Fontaine’s Amended Complaint does not include any counts or causes of
actions and asserting that: (i) Ms. Fontaine’s assertions that her mortgage and note are no
longer valid because her loan was securitized is an argument that has previously and
unanimously been rejected by other courts; (ii) although Ms. Fontaine references the
Truth in Lending Act and the Uniform Electronic Transactions Act, she has failed to state
a claim as to either of these statutes and any claim under the Truth in Lending Act is
barred by the one-year statute of limitations; and (iii) Ms. Fontaine has failed to satisfy
Fed. R. Civ. P. 8(a).

Defendant U.S. Bancorp, Inc. adopts and incorporates those

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The Court notes that the Amended Complaint was filed eighteen days after the Minute Order
was issued, outside the directed fourteen days. In the interests of justice, the Court finds that the
Amended Complaint should not be stricken on this basis, and instead proceeds to evaluating the
sufficiency of the Amended Complaint itself. See, e. g., Peel v. Turner, 2007 WL 2156393, at *1
(N.D. Okla. July 25, 2007) (“Although plaintiff filed his amended complaint beyond the date
specified by the Court, the Court finds that, in the interest of justice, the amended complaint
should not be stricken. However, the Court directs plaintiff that, in the future, he shall adhere to
the Court’s orders, including deadlines for pleadings.”).
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arguments and further asserts that it is not a proper party and that Ms. Fontaine further
failed to allege any actions attributable to U.S. Bancorp, Inc. in her Amended Complaint.
ANALYSIS
A complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are
not required, but the statement of the claim under Rule 8(a)(2) must be “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007),
citing Papasan v. Allain, 478 U.S. 265, 286 (1986). “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor
does a complaint suffice if it tenders naked assertion[s] devoid of further factual
enhancement . . . To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face. A
claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555-557, 570 [internal quotation
marks omitted]. “While legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. “While the
12(b)(6) standard does not require that Plaintiff establish a prima facie case in her
complaint, the elements of each alleged cause of action help to determine whether
Plaintiff has set forth a plausible claim.” Khalik v. United Air Lines, 671 F.3d 1188, 1192
(10th Cir. 2012). This requires a determination as to “whether the complaint sufficiently
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alleges facts supporting all the elements necessary to establish an entitlement to relief
under the legal theory proposed.” Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007),
quoting Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
This Court is to liberally construe pro se pleadings, see Diversey v. Schmidly, 738
F.3d 1196, 1199 (10th Cir. 2013); “this rule of constructions stops, however, at the point
at which we begin to serve as [the pro se litigant’s] advocate.” Pinson, 584 F.3d at 975.
Here, the Court finds that the Plaintiff has failed to comply with this Court’s previous
Order directing her to file an Amended Complaint in compliance with Fed. R. Civ. P.
8(a), and that her Amended Complaint should therefore be dismissed. Her twenty-two
page Amended Complaint recites facts without linking them to state or federal statutes,
and further fails to identify any causes of action or legal theories upon which she is suing,
despite repeated opportunities from this Court that would allow her to do so. “Although
pro se litigants’ filings are held to less stringent standards than formal pleadings drafted
by lawyers, they are still subject to the federal rules of civil and appellate procedure. At a
minimum, rule 8(a) requires a comprehensible, short and plain statement of the claim(s)
sufficient to give the opposing party reasonable and fair notice of the basis of the
complaint.” Abdelsamed v. Colorado, 6 Fed. App. 771, 772 (10th Cir. 2001) [internal
citations and quotations omitted]. Furthermore, the Court notes that Ms. Fontaine has
filed a number of similar cases in other Courts, and that at least one has already been
dismissed for this very same reason, indicating previous instruction on the pleading
requirements.

See, e. g., Case No. CIV-14-1944-WQH-DHB, Fontaine v. Bank of

America, et al., Docket No. 64 (S.D. Cal. June 25, 2015) (“Plaintiff’s [First Amended
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Complaint] consists of a series of bolded headings followed by dense paragraphs of
indefinite allegations. . . . [and] fails to identify violations of law allegedly committed by
Defendants, with the exception of references to violations of two federal statutes. With
respect to the two federal statutes . . . Plaintiff’s [First Amended Complaint] does not
indicate the alleged wrongful act performed by each Defendant, preventing Defendants
from responding to the allegations.”).
The Court also finds that the Amended Complaint should be dismissed for two
additional reasons. First, any claim under the Truth in Lending Act is outside the statute
of limitations. Ms. Fontaine alleges that she entered into her mortgage on September 5,
2006. She did not file this case until October 17, 2014, well outside the one-year statute
of limitations. 15 U.S.C. § 1640(e) (“[A]ny action under this section may be brought . . .
within one year from the date of the occurrence of the violation[.]”). See also Betancourt
v. Countrywide Home Loans, Inc., 344 F. Supp. 2d 1253, 1257 (D. Colo. 2004)
(“Consummation of the transaction occurs ‘at the time a contractual relationship is
created between a creditor and a customer irrespective of the time of performance of
either party.’ . . . [T]he contractual relationship has been held to occur when the borrower
signed the promissory note.”) [internal citations omitted].
Second, Ms. Fontaine has failed to state a claim under either the Truth in Lending
Act or the Uniform Electronic Transactions Act because she has filed to plead specific
facts as to any specific Defendant, and the Amended Complaint is therefore devoid of
factual allegations detailing how the Defendants, specifically, are liable. As such, the
Court finds that the complaint does not “contain sufficient factual matter, accepted as
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true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The
Plaintiff’s conclusory allegations are insufficient to “[nudge her] claims . . . across the
line from conceivable to plausible[,]” Iqbal, 129 S. Ct. at 1951 [citation and internal
quotations omitted], and the Amended Complaint should therefore be dismissed for
failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).
Finally, the Defendants have requested that any dismissal in this case be with
prejudice, as Ms. Fontaine has been given opportunities to amend her pleadings and has
failed to state any actionable claims. Fed. R. Civ. P. 15(a)(2) provides that the “court
should freely give leave when justice so requires,” and that is especially true “when the
plaintiff is proceeding pro se.” Panicker v. State Dept. of Agriculture, 498 Fed. Appx.
755, 757 (10th Cir. 2012). However, the Court agrees with Defendants’ position that
amendment in this case would be futile. See Chapman v. Chase Manhattan Mortgage
Corp., 2007 WL 2815246, at *4 (N.D. Okla. Sept. 24, 2007) (“Chapman states that Chase
harmed his credit by erroneously reporting that he was one month behind on his
mortgage. This type of claim falls squarely within the [Fair Credit Reporting Act] and,
under Williams[ v. CSC Credit Services, Inc., 2007 WL 1959219 (N.D. Okla. June 29,
2007)], Chapman’s claim under the OCPA is barred.”).

Because the Plaintiff has

repeatedly failed to state a claim for relief under any viable cause of action, amendment
to allow further claim for damages for the same actions would be futile. See Jefferson
County School Dist. No. R-1 v. Moody’s Investor’s Services, Inc., 175 F.3d 848, 859
(10th Cir. 1999) (“Although Fed. R. Civ. P. 15(a) provides that leave to amend shall be
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given freely, the district court may deny leave to amend where amendment would be
futile[.] A proposed amendment is futile if the complaint, as amended, would be subject
to dismissal.”).
CONCLUSION
Consequently, IT IS ORDERED that the Motion to Dismiss Amended Complaint
and Incorporated Memorandum of Law by Defendants Citibank, CitiMortgage,
Citigroup, U.S. Bank, MERS, and Merscorp [Docket No. 46] and Defendant U.S.
Bancorp, Inc.’s Motion to Dismiss Plaintiff’s Amended Complaint [Docket No. 47] are
hereby GRANTED, and this case is hereby DISMISSED WITH PREJUDICE.
DATED this 3rd day of March, 2016.

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