Dillard v. Rubin Lublin Suarez Serrano, LLC et al

Filing 50

ORDER re 31 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by HSBC Mortgage Services, Inc.. Signed by Judge S. Thomas Anderson on 3/28/2013. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRI CT OF TENNESSEE
WESTERN DIVISION

RENATA DEALEAN DILLARD,
Plaintiff,
vs.
RUBIN LUBLIN SUAREZ SERRANO,
et al.,
Defendants.

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No. 12-2182-STA-dkv

ORDER GRANTING THE MOTION TO DISMISS FILED BY HSBC
AND
ORDER OF PARTIAL DISMISSAL

Before the Court is HSBC Mortgage Services, Inc.’s Motion to
Dismiss. (ECF No. 31.) For the reasons stated herein, that motion
is GRANTED.
On March 5, 2012, Plaintiff Renata DeAlean Dillard, a resident
of Cordova, Tennessee, filed a pro se Verified Complaint for
Emergency Injunctive, Declaratory Relief and Demand for Jury Trial
against Rubin Lublin Suarez Serrano, LLC (the “Attorneys”); Bank of
America, N.A. (“BANA”); The Bank of New York Mellon f/k/a The Bank
of New York (“BNYM”); and HSBC Mortgage Services, Inc. (“HSBC”).
(ECF No. 1.) On May 30, 2012, HSBC filed its Motion to Dismiss
pursuant to Rules 8(a)(2), 9(b), and 12(b)(6) of the Federal Rules
of Civil Procedure. (ECF No. 31.) Although Plaintiff has not
responded to this motion, the Court declines to issue a show cause
order because Plaintiff has responded to a similar motion filed by

BANA and BNYM. (See ECF No. 5 (motion to dismiss filed by BANA and
BNYM); ECF Nos. 14 & 15 (Plaintiff’s response).)1
This is an action to set aside a non-judicial foreclosure. On
February 4, 2005, Plaintiff entered into two loan transactions
secured by the property located at 8821 Overlea Cove, Cordova,
Tennessee 30816 (the “Real Property”).2 The original lender on the
$185,520

loan

(the

“First

Mortgage”)

was

America’s

Wholesale

Lender, and the original lender on the $46,380 loan (the “Second
Mortgage”) was Countrywide Home Loans of Tennessee, Inc. Plaintiff
alleges that BANA, BNYM, and HSBC are “are upon information and
belief . . . creditors, assignee(s), trustee(s) and/or holders of
Plaintiff’s

purported

mortgage

loan

.

.

.

.”

(Compl.

¶

4.)

According to HSBC, “[a]t the time of default, the first mortgage
was held by [BNYM] and the second mortgage was held by Household
Financial, Inc. The second mortgage is the only loan affecting the
[Real] Property in which HSBC has any legal interest.” (ECF No. 31-

1

In an order issued on March 1, 2013, the Court granted the motion to
dismiss filed by BANA and BNYM. (ECF No. 46.)
2
(See Compl. Exs. A, B, F & G.) Ordinarily, a court may not consider
matters outside the pleadings unless the motion is converted to a summary
judgment motion.

There are, however, exceptions to this general rule. Documents
attached to a motion to dismiss are considered part of the pleadings
if they are referred to in the plaintiff’s complaint and are central
to the Plaintiff’s claim. . . . Courts may also consider public
records, matters of which a court may take judicial notice, and
letter decisions of governmental agencies.
Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999) (citations
omitted), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506
(2002); see also Green v. Gandy, No. 5:10-cv-367-JMG, 2011 WL 4688639, at *3
(E.D. Ky. Oct. 3, 2011); Bazzy v. IndyMac Mortgage Servs., No. 09-CV-13436, 2010
WL 707371, at *1 (E.D. Mich. Feb. 23, 2010).

2

1 at 1.) Although BNYM sold its interest in the Real Property to
BANA at a foreclosure sale, “to date, HSBC has taken no action
adverse to the Plaintiff or otherwise instituted any proceedings to
enforce its security interest in the [Real] Property.” (Id. at 12.)3
The

allegations

in

the

Complaint

about

the

Notice

of

Acceleration and Foreclosure refer to “certain Defendants” (Compl.
¶¶ 9-10), although the underlying documents make clear that the
Attorneys mailed the Notice of Acceleration and conducted the
foreclosure on behalf of their client, BNYM. BANA, which purchased
BNYM’s interest in the Real Property at the foreclosure sale,
subsequent mailed Plaintiff a “Move Out Agreement.” (Id. ¶ 11.)
The Complaint asserts claims for violation of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq., and
the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18
U.S.C.

§§

1961

et

seq.

(Compl.

¶

93.)

The

Complaint

seeks

declaratory relief and money damages. (Id. p. 16.)
3

HSBC has explained its interest in the Real Property:

The second mortgage was recorded on March 14, 2005 as
Instrument No. 05038858 in the Office of the Shelby County Register.
The lender on the second mortgage was Countrywide Home Loans of
Tennessee, Inc. The Deed of Trust for the second mortgage was
transferred via corporate assignment of deed of trust to Countrywide
Home Loans, Inc. The corporate assignment was recorded on February
21, 2007 as Instrument No. 07031522 in the Office of the Shelby
County Register. The Deed of Trust was subsequently transferred via
corporate assignment of deed of trust to Household Financial Center,
Inc. The corporate assignment was recorded on May 8, 2007 as
Instrument No. 07074293 in the Office of the Shelby County Register.
HSBC Mortgage Services, Inc. and Household Financial Center Inc. are
both legal entitles to HSBC. The second mortgage is the only loan
affecting the [Real] Property in which HSBC Mortgage Services, Inc.
has any legal interest.
(Id. at 2-3 (record citations omitted).)

3

In assessing whether the complaint in this case states a claim
on which relief may be granted, the Court applies the standards
under Federal Rule of Civil Procedure 12(b)(6), as stated in
Ashcroft v. Iqbal, 556 U.S. 662, 677-79, 129 S. Ct. 1937, 1949-50,
173 L. Ed. 2d 868 (2009), and in Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555-57, 127 S. Ct. 1955, 1964-66, 167 L. Ed. 2d 929
(2007). “Accepting all well-pleaded allegations in the complaint as
true, the Court ‘consider[s] the factual allegations in [the]
complaint to determine if they plausibly suggest an entitlement to
relief.’” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011)
(quoting Iqbal, 556 U.S. at 681, 129 S. Ct. at 1951) (alteration in
original). “[P]leadings that . . . are no more than conclusions[]
are

not

entitled

to

the

assumption

of

truth.

While

legal

conclusions can provide the framework of a complaint, they must be
supported by factual allegations.” Iqbal, 556 U.S. at 679, 129 S.
Ct. at 1950; see also Twombly, 550 U.S. at 555 n.3, 127 S. Ct. at
1964-65 n.3 (“Rule 8(a)(2) still requires a ‘showing,’ rather than
a blanket assertion, of entitlement to relief. Without some factual
allegation in the complaint, it is hard to see how a claimant could
satisfy the requirement of providing not only ‘fair notice’ of the
nature

of

the

claim,

but

also

‘grounds’

on

which

the

claim

rests.”).
Rule 8(a)(2) requires “[a] pleading that states a claim for
relief” to contain “a short and plain statement of the claim

4

showing that the pleader is entitled to relief.”4 A complaint
violates these provisions when it “is so verbose that the Court
cannot identify with clarity the claim(s) of the pleader and
adjudicate such claim(s) understandingly on the merits.” Harrell v.
Dirs. of Bur. of Narcotics & Dangerous Drugs, 70 F.R.D. 444, 446
(E.D. Tenn. 1975); see also Flayter v. Wis. Dep’t of Corr., 16 F.
App’x 507, 509 (7th Cir. 2001) (dismissing 116-page complaint
pursuant to Rule 8(a)(2)); Vicom v. Harbridge Merch. Servs., Inc.,
20 F.3d 771, 775-76 (7th Cir. 1994) (criticizing district court for
declining to dismiss amended complaint with prejudice pursuant to
Rule 8(a) and noting that “[a] complaint that is prolix and/or
confusing makes it difficult for the defendant to file a responsive
pleading and makes it difficult for the trial court to conduct
orderly litigation); Plymale v. Freeman, ___ F. App’x ___, 1991 WL
54882, at *1 (6th Cir. Apr. 12, 1991) (district court did not abuse
its discretion in dismissing with prejudice “rambling” 119-page
complaint containing nonsensical claims); Jennings v. Emry, 910
F.2d 1434, 1436 (7th Cir. 1990) (“A . . . complaint must be
presented with intelligibility sufficient for a court or opposing
party to understand whether a valid claim is presented and if so
what it is. And it must be presented with clarity sufficient to
avoid requiring a district court or opposing party to forever sift
through its pages in search of that understanding.”) (citations
omitted).

4

See also Fed. R. Civ. P. 8(d)(1) (“Each allegation must be simple,
concise, and direct.”).

5

Federal courts have not hesitated to dismiss lawsuits by pro
se litigants challenging foreclosures on this basis. For example,
one district court in this circuit recently stated as follows:
Even under the lenient standards governing pro se
pleadings, Plaintiff’s complaint in this case is an
incomprehensible grab-bag of disjointed references to
various statutes, treaties, legal doctrines, judicial
rulings, and the like. Similarly, Plaintiff has eschewed
any sort of straightforward response to Defendants’
motions, and instead has submitted over 70 pages of
documents bearing such captions as “affidavit of fact,”
“writ in the nature of discovery,” and “legal notice of
removal.” The Court appreciates that the legal system can
be difficult for a layperson to navigate, but the rules
of pleading are designed to facilitate access to the
courts by pro se litigants without the need for
specialized legal training or expertise, requiring only
a “short and plain statement” of the grounds for relief.
See Fed. R. Civ. P. 8(a)(2). Plaintiff has made no effort
to satisfy this standard, but instead appears intent on
obscuring the nature of and factual basis for his claims
in this case. Moreover, he cites a litany of state and
federal laws — e.g., criminal statutes that do not confer
a private right of action — without any attempt to allege
facts that might forge a link between these laws and a
viable cause of action.
Under this record, no amount of liberal construction
of Plaintiff’s pro se submissions can rescue this suit
from dismissal. While it is evident that Plaintiff is
dissatisfied with the outcome of the state court tax
foreclosure and landlord/tenant proceedings, it is far
less clear how he proposes to forge a link between this
dissatisfaction and a viable cause of action that lies
within this Court’s subject matter jurisdiction. Instead,
for the reasons identified in Defendants’ motions and
discussed above, the Court finds that Plaintiff’s
complaint must be dismissed.
Nassar El v. Smith, No. 11-11957, 2012 WL 313985, at *3 (E.D. Mich.
Jan. 31, 2012); see also Samples v. Bank of Am., N.A., No. 3:12-CV44, 2012 WL 1309135, at *3 (E.D. Tenn. Apr. 16, 2012) (dismissing
complaint under Rules 8(a) and 12(b)(6) where “[t]he specific
factual allegations of the complaint consist of, at most, two
6

sentences

relating

to

the

Property

and

the

origination

of

plaintiff’s loan” and the remainder of the complaint addresses “the
mortgage industry, mortgage-backed securities, and allegations of
misconduct against the mortgage industry and its processes as a
whole” with no discussion of the allegedly wrongful conduct of BANA
and its impact on plaintiffs); Bajwa v. John Adams Mortg. Co., No.
11-CV-12183-DT, 2011 WL 6009266, at *6 (E.D. Mich. Nov. 30, 2011)
(dismissing certain claims in action challenging a foreclosure as
incomprehensible); Smith v. MERS, No. 10-125008, 2011 WL 4469148,
at *3-4 (E.D. Mich. Aug. 4, 2011) (report and recommendation),
adopted, 2011 WL 4479481 (E.D. Mich. Sept. 27, 2011); Sherman v.
Saxon Mortg. Servs., Inc., No. 10-2282-STA-tmp, 2010 WL 2465459, at
*5 (W.D. Tenn. June 14, 2010) (dismissing pro se complaint for
numerous reasons, including failure to comply with Rule 8(a)).
“Pro se complaints are to be held to less stringent standards
than formal pleadings drafted by lawyers, and should therefore be
liberally construed.” Williams, 631 F.3d at 383 (internal quotation
marks omitted). Pro se litigants, however, are not exempt from the
requirements of the Federal Rules of Civil Procedure. Wells v.
Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v.
Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011) (“[A] court cannot
create a claim which [a plaintiff] has not spelled out in his
pleading”) (internal quotation marks omitted); Payne v. Secretary
of Treas., 73 F. App’x 836, 837 (6th Cir. 2003) (affirming sua
sponte dismissal of complaint pursuant to Fed. R. Civ. P. 8(a)(2)

7

and stating, “[n]either this court nor the district court is
required to create Payne’s claim for her”).
In its Motion to Dismiss, HSBC argues that the Complaint must
be dismissed pursuant to Rule 12(b)(6) because it does not allege
any discernible claim against it. (ECF No. 31-1 at 9-10.) That
argument is well taken. Plaintiff’s Complaint is insufficient to
identify the nature of her claims against HSBC, which has taken no
action adverse to Plaintiff. HSBC is not the originating lender on
the Second Mortgage and, while a sister corporation now holds the
Second Mortgage, it has taken no steps to enforce its security
interest. The Court GRANTS this aspect of HSBC’s motion to dismiss.
Additionally, HSBC has incorporated the arguments presented by
BANA and BNYM under Rules 8(a)(2) and 12(b)(6) about the pleading
deficiencies in the Complaint. (Id. at 7-8.) The Court granted that
aspect of the motion to dismiss filed by BANA and BNYM, stating as
follows:
Plaintiff’s Complaint is one of a series of similar form
complaints filed in this district that contains few
discernible claims. Much of the complaint consists of a
list of cases (Compl. ¶¶ 27-48) and what purports to be
a lengthy summary of the provisions of the “National
Currency Act (later called ‘National Bank Act’),” as
enacted by the Thirty-eighth Congress (id. ¶¶ 49-92; see
also
id.
¶
19
(“The
law
that
Governs
this
note/bond/mortgage, security interest lien is the
Statutes at Large Public Law 13 38th Congress Stat 99118, the National currency Act, which is expressed as
prima facie Law under the United States Code Title 13
Banks and Banking . . . .”). The 38th Congress sat from
March 4, 1863, to March 4, 1865. Plaintiff is presumably
referring to the National Bank Act of 1864, 13 Stat. 99,
which provided, inter alia, for the federal chartering of
national banks. Plaintiff’s vague references to the
National Bank Act of 1864, which is currently codified,
as amended, in Title 12 of the United States Code, are
8

insufficient to give fair notice of her claims under that
statute. See Twombly, 550 U.S. at 555, 127 S. Ct. at
1964.
(ECF No. 46 at 11-12; see also id. at 12-14 (dismissing specific
claims under National Bank Act.) This analysis applies to any
claims asserted against HSBC. The Court GRANTS this aspect of
HSBC’s Motion to Dismiss.
Finally, HSBC argues that Plaintiff’s fraud claims, including
her RICO claim, do not comply with Rules 9(b) and 12(b)(6). (ECF
No. 41-1 at 10-12.) The Court has granted that aspect of the motion
to dismiss filed by BANA and BNYM. (See ECF No. 46 at 16-21, 2426.) That analysis applies to Plaintiff’s fraud and RICO claims
against HSBC. The Court GRANTS this aspect of HSBC’s Motion to
Dismiss.
For all the foregoing reason, the Court GRANTS HSBC’s Motion
to Dismiss pursuant to Rules 8(a), 9(b), and 12(b)(6) of the
Federal Rules of Civil Procedure. Because the Complaint, on its
face, does not include any factual allegations against HSBC, and
because Plaintiff failed to respond to HSBC’s Motion to Dismiss,
the claims against HSBC are DISMISSED WITH PREJUDICE.
IT IS SO ORDERED this 28th day of March, 2013.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

9