Mary Louise Bell v. Federal National Mortgage Association et al

Filing 24

MEMORANDUM.The Court will DENY Plaintiffs motion to remand 10 , GRANT Fannie Maes and CIT Banks motion to dismiss [ 7], and DISMISS Plaintiffs claims against Fannie Mae and CIT Bank. An appropriate order will enter.Signed by District Judge Curtis L Collier on 9/27/2017. (SAC, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
MARY LOUISE BELL,
Plaintiff,
v.
FEDERAL NATIONAL MORTGAGE
ASSOCIATION, ASPEN TITLE AND
ESCROW, LLC, TN, FINANCIAL
FREEDOM SENIOR FUNDING
CORPORATION, and CIT BANK, N.A.,
Defendants.

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2:16-CV-327
Judge Curtis L. Collier

MEMORANDUM
Before the Court is a motion to remand for lack of subject matter jurisdiction filed by
Plaintiff, Mary Louise Bell. (Doc. 10.) Plaintiff argues diversity jurisdiction does not exist
because she and Defendant Aspen Title and Escrow, LLC, TN (“Aspen Title”) are both citizens
of the state of Tennessee and the amount in controversy does not exceed $75,000. Defendants
Federal National Mortgage Association (“Fannie Mae”) and CIT Bank, N.A. (“CIT Bank”)
responded in opposition to Plaintiff’s motion. (Doc. 18.) Aspen Title has not responded to the
motion to remand.

Defendant Financial Freedom Senior Funding Corporation (“Financial

Freedom”) has not yet appeared in the action and does not appear to have been served. The time
for Plaintiff to file a reply in support of her motion has expired, and this matter is now ripe. For
the reasons set out below, the Court will DENY the motion to remand.
Also before the Court is a motion to dismiss filed by Defendants Fannie Mae and CIT
Bank (collectively, the “Moving Defendants”).

(Doc. 7.)

The Moving Defendants argue

Plaintiff’s claims against them should be dismissed under Rule 12(b)(6) of the Federal Rules of

Civil Procedure for failure to state a claim on which relief can be granted. Plaintiff responded in
opposition (Doc. 19), and the Moving Defendants replied (Doc. 22). For the reasons set out
below, the Court will GRANT the motion to dismiss.

I.

BACKGROUND1
On August 8, 2008, Plaintiff obtained a reverse mortgage from Financial Freedom on the

real property known as 406 Putters Court in Church Hill, Tennessee (the “Property”). The value
of the Property in 2008 was $156,700. In connection with obtaining the reverse mortgage,
Plaintiff executed various instruments, including a note in the amount of $285,000; an
Adjustable Rate Home Equity Conversion Deed of Trust (the “First Deed of Trust”) in favor of
Financial Freedom, recorded in Book 920, Pages 693–703, instrument number 08006912, in
Hawkins County, Tennessee (Doc. 7-1); and an Adjustable Rate Home Equity Conversion
Second Deed of Trust (the “Second Deed of Trust”) in favor of the Secretary of Housing and
Urban Development (the “Secretary”), recorded in Book 920, Pages 704–713, instrument
number 08006913, in Hawkins County, Tennessee (Doc. 7-2). Aspen Title was named as the
trustee in both Deeds of Trust.
Financial Freedom’s interest in the First Deed of Trust was transferred, through Mortgage
Electronic Registration Systems, Inc., to CIT Bank on October 22, 2015. (Doc. 1-1 at 26–27.)
On March 16, 2016, CIT Bank substituted Shapiro & Ingle, LLP (“Shapiro”) for Aspen as trustee
as to the First Deed of Trust. (Id. at 29.)
1

This summary of the facts is drawn from Plaintiff’s Complaint and the exhibits attached
to Plaintiff’s Complaint. Because a number of pages are missing from certain of the exhibits
attached to Plaintiff’s Complaint, the Court has also referred to the complete copies of those
exhibits supplied by Defendants without objection from Plaintiff. Because all of the cited
exhibits are contracts or other legally effective documents, where the exhibits contradict
Plaintiff’s allegations, the Court has relied on the facts as set out in the exhibits. See Carrier
Corp. v. Outokumpu Oyj, 673 F.3d 430, 441 (6th Cir. 2012).
2

Plaintiff made all of the mortgage payments she was required to make and paid her
county property taxes. She did not, however, pay her city property taxes or maintain flood
insurance on the Property as required under the Deeds of Trust.
On May 17, 2016, Shapiro, as trustee, foreclosed on the First Deed of Trust and sold the
Property to CIT Bank for $180,836. (Id. at 30–31.) CIT Bank transferred its interest in the
Property to Fannie Mae the same day. (Id.) Following correspondence with Plaintiff and
communications with her counsel, Fannie Mae filed a detainer warrant in the General Sessions
Court for Hawkins County, Tennessee on September 23, 2016. (Id. at 34–36.)
Plaintiff filed this action in Chancery Court for Hawkins County on October 12, 2016.
(Id. at 4–14.) The Complaint does not enumerate any causes of action. The demand section,
however, seeks a restraining order and injunction against Defendants to prevent them from
proceeding with the eviction; asks to have both Deeds of Trust set aside, found to be
unconscionable, and declared null and void; and asks to have Plaintiff’s rights in the Property
restored to her. The body of the Complaint also characterizes the Defendants’ actions as fraud,
as a violation of the Tennessee Consumer Protection Act, Tenn. Code Ann. §§ 47-18-101 et seq.
(the “TCPA”), and as the intentional infliction of emotional distress on Plaintiff.
Defendants CIT Bank, Fannie Mae, and Aspen removed the action to this Court on
October 24, 2016 based on diversity jurisdiction, alleging Aspen is a fraudulently joined and
nominal party whose citizenship should not be considered for purposes of removal. (Doc. 2.)

II.

STANDARD OF REVIEW
A.

Motion to Remand

A defendant may remove any civil action filed in state court to federal court if the district
court would have had subject matter jurisdiction had the case been originally filed in federal
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court. 28 U.S.C. § 1441. The party seeking removal to federal court bears the burden of
establishing the district court has original jurisdiction over the matter. Long v. Bando Mfg. of
Am., Inc., 201 F.3d 754, 757 (6th Cir. 2000). Removal petitions are strictly construed, with all
doubts resolved against removal. Her Majesty the Queen in Right of the Province of Ontario v.
City of Detroit, 874 F.2d 332, 339 (6th Cir. 1989).
A defendant removing a case to federal court on the basis of diversity of citizenship
jurisdiction has the burden of proving these jurisdictional requirements exist at the time of
removal. Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir. 2000). If a case does not
involve a federal question, complete diversity of citizenship must exist between the parties and
the amount in controversy must exceed $75,000 for the federal court to have subject matter
jurisdiction. 28 U.S.C. § 1332; see U.S. Fid. & Guar. Co. v. Thomas Solvent Co., 955 F.2d 1085,
1089 (6th Cir. 1992). The removal statute is construed strictly and narrowly against removal.
Her Majesty the Queen, 874 F.2d at 339. If doubt exists as to the propriety of removal, the case
should be remanded to state court. Smith v. Nationwide Prop. & Casualty Ins. Co., 505 F.3d 401,
405 (6th Cir. 2007).
B.

Motion to Dismiss

A party may move to dismiss a claim for failure to state a claim upon which relief can be
granted. Fed. R. Civ. P. 12(b)(6). In ruling on such a motion, a court must accept all of the
factual allegations in the complaint as true and construe the complaint in the light most favorable
to the plaintiff. Gunasekera v. Irvwin, 551 F.3d 461, 466 (6th Cir. 2009) (quoting Hill v. Blue
Cross & Blue Shield of Mich., 49 F.3d 710, 716 (6th Cir. 2005)). If a party presents matters
outside the pleadings in connection with the motion, the court must either exclude those matters
from consideration or treat the motion as one for summary judgment. Fed. R. Civ. P. 12(d).
Documents attached to pleadings are considered part of the pleadings for all purposes, however,
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Fed. R. Civ. P. 10(c), and the consideration of documents referred to in a complaint and integral
to the claims does not convert a motion to dismiss into a motion for summary judgment,
Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 335–36 (6th Cir. 2007).
In deciding a motion to dismiss under Rule 12(b)(6), a court must determine whether the
complaint contains “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The factual content pleaded by a plaintiff
must permit a court “to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility as explained by
the Court “is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at
679 (quoting Fed. R. Civ. P. 8(a)(2)). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. at 678.

III.

DISCUSSION
The Court will first address Plaintiff’s motion to remand. Because the Court concludes it

does have subject-matter jurisdiction, in this case, the Court will then address the Moving
Defendants’ motion to dismiss. Although Plaintiff is the movant as to the motion to remand, the
Moving Defendants bear the burden of proof on both motions.
A.

Motion to Remand

Plaintiff argues complete diversity does not exist because she has a valid cause of action
against Aspen, a Tennessee citizen, and she argues the amount in controversy does not exceed
$75,000 because the only relief she is seeking is to restrain Fannie Mae from proceeding with the
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eviction and to set aside the foreclosure.

The Moving Defendants contend the Court has

diversity jurisdiction because Aspen is a nominal and fraudulently joined party and the value of
the Property exceeds $75,000.
1.

Diversity of Citizenship

When an action is removed based on diversity, federal jurisdiction attaches “only when
all parties on one side of the litigation are of a different citizenship from all parties on the other
side of the litigation.” SHR Ltd. P’ship v. Braun, 888 F.2d 455, 456 (6th Cir. 1989). However,
fraudulent joinder of non-diverse defendants will not defeat removal on diversity grounds. To
prove fraudulent joinder, the removing party must demonstrate “a plaintiff could not have
established a cause of action against non-diverse defendants under state law.” Alexander v. Elec.
Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994). If there is a “colorable basis” for predicting a
plaintiff may recover against non-diverse plaintiffs, the Court must remand the action to the state
court in which it was brought. Id. In applying this rule, the district court must resolve all
disputed questions of fact and ambiguities in the controlling state law in favor of the
nonremoving party; all doubts as to the propriety of removal are resolved in favor of remand.
Coyne v. American Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999) (internal quotation omitted).
A party bears a heavy burden when it relies on fraudulent joinder to establish subject
matter jurisdiction. The law of fraudulent joinder “requires removing defendants to do more
than simply articulate a basis for dismissal of the plaintiff’s claims against the non-diverse
defendants who have allegedly been fraudulently joined.”

Waterloo Coal Co. v. Komatsu

Mining Sys., Inc., No. C2-02-560, 2003 WL 124137, at *2 (S.D. Ohio Jan. 9, 2003). Similarly, a
formal or nominal party “is one who has no interest in the result of the suit and need not have
been made a party thereto.” Grant County Deposit Bank v. McCampbell, 194 F.2d 469, 472 (6th
Cir. 1952).
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The benefit of the doubt given to a plaintiff in a fraudulent joinder inquiry is more
deferential than the benefit of doubt given under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Little v. Purdue Pharma, L.P., 227 F. Supp. 2d 838, 846 (S.D. Ohio 2002). Because
the fraudulent joinder jurisdictional inquiry is different from the inquiry on a motion to dismiss,
there could be a colorable basis for predicting a plaintiff may recover on claims against a nondiverse defendant such that the defendant is not fraudulently joined, even if those claims later fail
to survive a motion to dismiss in state court. See Batoff v. State Farm Ins. Co., 977 F.2d 848,
852–53 (3d. Cir. 1992).
The question the Court must decide is whether Aspen was fraudulently joined, thus
allowing its citizenship to be disregarded. Answering this question is complicated by the lack of
clarity as to the causes of action Plaintiff seeks to assert and the inconsistencies in and among
Plaintiff’s filings. Plaintiff’s motion to remand expressly states that the only relief she is seeking
is to enjoin Fannie Mae from evicting Plaintiff from the Property and to set aside the foreclosure
deed. (Doc. 11 at 7.) Her Complaint, by contrast, asks that the Deeds of Trust, rather than the
foreclosure deed, be set aside.2 (Doc. 2-1 at 13.) Plaintiff’s response to the Motion to Dismiss
also argues in support of claims under the TCPA, for fraud, and for wrongful foreclosure. (Doc.
19 at 5–9.) Under any of these causes of action, the Court concludes the Moving Defendants
have met their burden to show Plaintiff has no colorable claim against Aspen.
Plaintiff argues Aspen as trustee was integral to the execution of the reverse mortgage,
which Plaintiff claims involved fraudulently causing her to execute two deeds of trust. Plaintiff

2

Plaintiff’s Complaint also asserts she “has suffered intentional emotional distress by all
defendants.” (Doc. 2-1 ¶ 24.) Plaintiff’s Complaint never asks for relief for this alleged
emotional distress, and none of her briefs refer to such a cause of action against any of the
Defendants. To the extent Plaintiff intended to assert a cause of action for intentional infliction
of emotional distress, which the Court doubts, the Court deems any such claim abandoned.
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alleges in her Complaint that there was no valid reason for the execution of two deeds of trust
and that the execution of two deeds of trust doubled the amount of money she owed for the
mortgage. Plaintiff also alleges it was the second, allegedly improper, deed of trust that was
foreclosed on. All of this, Plaintiff argues, gives her a valid cause of action against Aspen for
fraud or misrepresentation.
As the Moving Defendants point out, the copies of the Deeds of Trust Plaintiff attached
to her Complaint are incomplete.

An examination of the complete documents yields no

indication that it was improper for Plaintiff to execute both Deeds of Trust in connection with
obtaining her reverse mortgage. Each Deed of Trust, in fact, explains its relationship to the other
as part of the reverse mortgage structure. (Doc. 7-1 [First Deed of Trust] ¶ 13, “Relationship to
Second Security Instrument”; (Doc. 7-2 [Second Deed of Trust] ¶ 13, “Relationship to First
Security Instrument.”) Both Deeds of Trust secure the same indebtedness and do not increase
the amount of money Plaintiff owes. Finally, the exhibits attached to Plaintiff’s Complaint make
it clear that it was the First Deed of Trust that was foreclosed on, including by the foreclosure
documents’ specific references to the instrument number assigned to the First Deed of Trust as
recorded by the Register of Deeds for Hawkins County. Plaintiff has not stated a colorable claim
against Aspen for fraud or misrepresentation in relation to the execution of two deeds of trust.
Plaintiff’s other potential causes of action fare no better.

To the extent Plaintiff

complains of the foreclosure sale or seeks to set aside the foreclosure deed, Aspen had been
replaced as trustee before the sale took place. (See Doc. 1-1 at 29.) To the extent Plaintiff seeks
to enjoin eviction proceedings, Aspen has taken no action to evict Plaintiff. To the extent
Plaintiff seeks to have the Property returned to her, Aspen has no interest in the Property to
return. And to the extent Plaintiff asserts a claim against Aspen under the TCPA, Plaintiff’s

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claim is barred for the same reason the Court will address below as to the motion to dismiss—
any claim under the TCPA is barred by the five-year statute of repose.3
Because Aspen was fraudulently joined, the Court disregards its citizenship and
concludes there is complete diversity of citizenship in this matter.
2.

Amount in Controversy

Plaintiff asserts in her motion to remand that the only relief she seeks is injunctive relief
against eviction and setting aside the foreclosure and the foreclosure deed. (Doc. 11 at 7.) As
discussed in the foregoing section, this assertion contradicts the position Plaintiff takes in
response to the motion to dismiss, in which she argues she is entitled to damages under the
TCPA. Regardless of this discrepancy, the Court concludes the Moving Defendants are correct
that the amount in controversy exceeds $75,000.
In an action seeking injunctive relief, “the amount in controversy is measured by the
value of the object of the litigation.” Cleveland Hous. Renewal Project v. Deutsche Bank Trust
Co., 621 F.3d 554, 560 (6th Cir. 2010) (quoting Hunt v. Wash. State Apple Adver. Comm’n, 460
F.3d 818, 829 (6th Cir. 2006)). Whether the object of the litigation is to enjoin Plaintiff’s
eviction, to set aside the foreclosure sale, or to set aside the Deeds of Trust, the object of the
litigation is the Property, and the value at issue is the value of the Property. Plaintiff asserts the
value of the Property in 2008 was $156,700. The amount of the note as secured by the Deeds of
Trust was $285,000. The Property sold at foreclosure for $180,836. All of these amounts are
well in excess of the $75,000 jurisdictional threshold. The Court concludes that the Moving
Defendants have established that the amount in controversy is in excess of $75,000.

3

In addition, as explained above, the allegedly unfair and deceptive act of having
Plaintiff execute both Deeds of Trust was neither unfair nor deceptive.
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Because there is complete diversity among the parties and the amount in controversy is in
excess of $75,000, the Court has subject matter jurisdiction over this action and will DENY
Plaintiff’s motion to remand.
B.

Motion to Dismiss

The Moving Defendants argue Plaintiff has failed to state a claim against them for
violation of the TCPA, for fraud, for wrongful foreclosure, to quiet title, or for declaratory or
injunctive relief.

(Doc. 7.)

Plaintiff responds only as to the TCPA, fraud, and wrongful

foreclosure. (Doc. 19.) Given the lack of clarity as to Plaintiff’s causes of action in her
complaint and her failure to respond to the Moving Defendants’ arguments on these issues, the
Court concludes Plaintiff did not intend to assert a claim to quiet title or for declaratory relief. In
the alternative, as the Moving Defendants argue in their reply (Doc. 22), Plaintiff has abandoned
any such claims by failing to respond to the Moving Defendants’ arguments. The Moving
Defendants are also correct that injunctive relief is a remedy rather than a cause of action and is
therefore unavailable if Plaintiff cannot state a claim for relief under an appropriate legal theory.
1.

The TCPA

The Moving Defendants argue Plaintiff’s TCPA claim is barred both by the one-year
statute of limitations and the five-year statute of repose. Plaintiff responds that her claim was
brought within one year of her discovery of Defendants’ unlawful acts and is therefore not barred
by the statute of limitations. She also argues the statute of repose should be waived based on the
doctrine of fraudulent concealment.

Because the Court finds the statute of repose to be

dispositive of Plaintiff’s claim, the Court need not consider the statute of limitations.
The TCPA contains the following time limitations:
Any action commenced pursuant to § 47-18-109 shall be brought within one (1)
year from a person’s discovery of the unlawful act or practice, but in no event
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shall an action under § 47-18-109 be brought more than five (5) years after the
date of the consumer transaction giving rise to the claim for relief.
Tenn. Code Ann. § 47-18-110. Plaintiff executed the Deeds of Trust on August 8, 2008. She
filed this action on October 12, 2016, more than eight years later. Plaintiff’s TCPA claim is
therefore barred by the five-year statute of repose.
Plaintiff argues the TCPA’s statute of repose can be waived where there has been
fraudulent concealment. Plaintiff relies primarily on Fahrner v. SW Manufacturing, Inc., 48
S.W.3d 141 (Tenn. 2001) and French v. First Union Securities, Inc., 209 F. Supp. 2d 818 (M.D.
Tenn. 2002). In Fahrner, an employment discrimination case, the Tennessee Supreme Court
actually addressed the tolling of statutes of limitations, mentioning a statute of repose only in a
single parenthetical. In French, the district court had no other authority for concluding the
TCPA’s statute of repose could be tolled than the single parenthetical in Fahrner. The Court
does not find either case persuasive that Tennessee courts would toll the TCPA statute of repose
based on fraudulent concealment. See Cates v. Stryker Corp., No. 3:10-CV-546, 2012 WL
256199, at *5 (E.D. Tenn. Jan. 27, 2012) (finding Fahrner and French not persuasive to toll the
TCPA statute of repose based on fraudulent concealment) (citing Penley v. Honda Motor Co., 31
S.W.3d 181, 184–85 (Tenn. 2000)).
The Tennessee Supreme Court, on the contrary, has explained that where the Tennessee
legislature has intended statutes of repose to be subject to tolling, the legislature has expressly
incorporated that exception into the relevant statute.

Penley, 31 S.W.3d at 184–85

(distinguishing statutes of limitations from statutes of repose and rejecting argument that statute
of repose for Tennessee Products Liability Act was subject to tolling for periods of mental
incompetency by the plaintiff). Thus, for example, the statute of repose for a Tennessee medical
malpractice case is expressly subject to tolling for fraudulent concealment. See Tenn. Code Ann.
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§ 29-26-116(a)(3) (“In no event shall any such action be brought more than three (3) years after
the date on which the negligent act or omission occurred except where there is fraudulent
concealment on the part of the defendant . . . .”). Plaintiff’s reliance on medical malpractice
cases in which the statute of repose was tolled is therefore misplaced.4 The Court concludes
Plaintiff’s TCPA claim is barred by the five-year statute of repose in Tenn. Code Ann. § 47-18110.
The Moving Defendants argue in the alternative that Plaintiff’s allegations are
insufficient to support a TCPA claim on various substantive grounds, and that Plaintiff has not
alleged any specific act of fraudulent concealment that could toll the statute of limitations or
statute of repose. Plaintiff has not responded to these arguments. If Plaintiff’s TCPA claim were
not barred by the statute of repose, Plaintiff’s failure to respond to the Moving Defendants’
additional arguments would, alternatively, entitle the Moving Defendants to dismissal of
Plaintiff’s TCPA claims against them.
2.

Fraud

The Moving Defendants argue Plaintiff fails to state a claim against them for fraud
because all of the allegations of wrongdoing in obtaining the reverse mortgage are directed
toward Financial Freedom, not the Moving Defendants, and her allegations of irregularities in
the foreclosure are contradicted by the documents attached to the Complaint and Plaintiff’s
admission that she had not paid city taxes or maintained flood insurance as required under the
Deeds of Trust. Plaintiff’s response continues to focus on the alleged wrongdoing of parties
other than Fannie Mae and CIT Bank in inducing her to obtain the reverse mortgage. Her
response refers to alleged fraud by the Moving Defendants only in an indirect and general way:
4

Also unpersuasive is Plaintiff’s reliance on Soldano v. Owens Corning Fiberglass
Corp., 696 S.W.2d 887 (Tenn. 2005), which dealt with the statute of limitations in a construction
dispute.
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Had it not been for the fraud perpetrated upon Ms. Bell by Defendants [Financial
Freedom] and Aspen she would not have signed two deeds of trust and Defendant
CIT would not have acquired title to her home to then convey its interest to
Defendant Fannie Mae. Since Defendants Fannie Mae and CIT were a party to
the fraudulent scheme and acquired the property from Ms. Bell they are both
proper parties to this action.
(Doc. 19 at 8.) These allegations do no more than raise a “sheer possibility” that the Moving
Defendants have acted unlawfully, if they even do so much. See Iqbal, 556 U.S. at 678. Plaintiff
has failed to state a claim against the Moving Defendants for fraud.
3.

Wrongful Foreclosure

Finally, the Moving Defendants argue Plaintiff fails to state a claim against them for
wrongful foreclosure because she fails to allege any irregularity or illegality in the foreclosure
sale itself. Plaintiff insists in response that her allegation that she was current on her mortgage
payments at the time of the foreclosure sale makes the foreclosure sale wrongful. In addition,
Plaintiff argues her counsel’s inability to find a document appointing CIT Bank as trustee makes
the foreclosure wrongful.
Under Tennessee law, a foreclosure sale may be set aside if the foreclosure sale was not
“legally held, conducted, and consummated,” or if there is “evidence of irregularity, misconduct,
fraud, or unfairness on the part of the trustee or the mortgagee that caused or contributed to an
inadequate price.” Holt v. Citizens Central Bank, 688 S.W.2d 414, 416 (Tenn. 1984). Plaintiff
has not alleged facts that would state a claim for wrongful foreclosure that is plausible on its
face. See Twombly, 550 U.S. at 570. Plaintiff need not have been delinquent in her mortgage
payments to give the holder of the First Deed of Trust the right to foreclose, where she admits
she failed to fulfill other contractual obligations, namely paying city property taxes and
maintaining flood insurance. And Plaintiff’s argument that the foreclosure sale was irregular
because she cannot locate a document making CIT Bank the trustee to conduct the foreclosure
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sale is inconsistent with the documents attached to her Complaint, specifically the transfer of the
First Deed of Trust to CIT Bank on October 22, 2015 (Doc. 1-1 at 26–27) and CIT Bank’s
substitution of Shapiro as trustee on March 16, 2016 (id. at 29), both of which were executed
before Shapiro conducted the foreclosure sale on May 16, 2016.
Plaintiff has failed to state a claim for relief for wrongful foreclosure that is plausible on
its face. The Moving Defendants are therefore entitled to the dismissal of Plaintiff’s wrongful
foreclosure claims against them, and the Court will GRANT their motion to dismiss.

IV.

CONCLUSION
The Court will DENY Plaintiff’s motion to remand (Doc. 10), GRANT Fannie Mae’s

and CIT Bank’s motion to dismiss (Doc. 7), and DISMISS Plaintiff’s claims against Fannie Mae
and CIT Bank.
An appropriate order will enter.

/s/
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE

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