Bibolotti v. American Home Mortgage Servicing, Inc. et al

Filing 31

MEMORANDUM OPINION AND ORDER - DENYING 24 Motion to Dismiss Plaintiff's Amended Complaint. Signed by Magistrate Judge Amos L. Mazzant on 2/27/2012. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

ENZO BIBOLOTTI
V.
AMERICAN HOME MORTGAGE
SERVICING INC., ET AL.

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CASE NO. 4:11-CV-472
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant American Home Mortgage Servicing, Inc.
(“AHMSI”), Defendant Deutsche Bank National Trust Company, as trustee for Soundview Home
Loan Trust 2006-OPT 2, Asset Backed Certificates, Series 2006-OPT 2 (“Deutsche”), and Defendant
G. Moss & Associates, L.L.P.’s Motion to Dismiss Plaintiff’s Amended Complaint (Dkt. #24). The
Court, having considered the relevant pleadings, finds that Defendants’ motion should be denied.
On December 2, 2011, Defendants filed their motion to dismiss (Dkt. #24). On December
19, 2011, Plaintiff filed a response (Dkt. #27). On January 6, 2012, Defendants filed a reply (Dkt.
#30).
LEGAL STANDARD
Defendants move for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
which authorizes certain defenses to be presented via pretrial motions. A Rule 12(b)(6) motion to
dismiss argues that, irrespective of jurisdiction, the complaint fails to assert facts that give rise to
legal liability of the defendant. The Federal Rules of Civil Procedure require that each claim in a
complaint include “a short and plain statement . . . showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). The claims must include enough factual allegations “to raise a right to relief
above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, “[t]o

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.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(quoting Twombly, 550 U.S. at 570).
Rule 12(b)(6) provides that a party may move for dismissal of an action for failure to state
a claim upon which relief can be granted. FED . R. CIV . P. 12(b)(6). The Court must accept as true
all well-pleaded facts contained in the plaintiff’s complaint and view them in the light most favorable
to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In deciding a Rule 12(b)(6)
motion, “[f]actual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555; Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). “The Supreme
Court recently expounded upon the Twombly standard, explaining that ‘[t]o 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.’” Gonzalez, 577 F.3d at 603 (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949 (2009)). “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.”
Id. “It follows, that ‘where 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 ‘shown’ - ‘that the pleader is
entitled to relief.’” Id.
In Iqbal, the Supreme Court established a two-step approach for assessing the sufficiency of
a complaint in the context of a Rule 12(b)(6) motion. First, the Court identifies conclusory
allegations and proceeds to disregard them, for they are “not entitled to the assumption of truth.”
Iqbal, 129 S.Ct. at 1951. Second, the Court “consider[s] the factual allegations in [the complaint]
to determine if they plausibly suggest an entitlement to relief.” Id. “This standard ‘simply calls for
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enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the necessary
claims or elements.” Morgan v. Hubert, 335 F. App’x 466, 470 (5th Cir. 2009). This evaluation will
“be a context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 129 S.Ct. at 1950.
In determining whether to grant a motion to dismiss, a district court may generally not “go
outside the complaint.” Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003). When
ruling on a motion to dismiss a pro se complaint, however, a district court is “required to look
beyond the [plaintiff’s] formal complaint and to consider as amendments to the complaint those
materials subsequently filed.” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); Clark v.
Huntleigh Corp., 119 F. App’x 666, 667 (5th Cir. 2005) (finding that because of plaintiff’s pro se
status, “precedent compels us to examine all of his complaint, including the attachments”); Fed. R.
Civ. P. 8(e) (“Pleadings must be construed so as to do justice.”). Furthermore, a district court may
consider documents attached to a motion to dismiss if they are referred to in the plaintiff’s complaint
and are central to the plaintiff’s claim. Scanlan, 343 F.3d at 536.
DISCUSSION AND ANALYSIS
After reviewing the Amended Complaint, the motion to dismiss, the response, the reply, the
Court finds that Plaintiff has stated plausible claims for purposes of defeating a Rule 12(b)(6)
motion. The Court further finds that Plaintiff should be permitted discovery.

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It is therefore ORDERED that Defendant American Home Mortgage Servicing, Inc.,
Defendant Deutsche Bank National Trust Company, as trustee for Soundview Home Loan Trust
2006-OPT 2, Asset Backed Certificates, Series 2006-OPT 2, and Defendant G. Moss & Associates,
L.L.P.’s Motion to Dismiss Plaintiff’s Amended Complaint (Dkt. #24) is hereby DENIED.
SIGNED this 27th day of February, 2012.

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AMOS L. MAZZANT
UNITED STATES MAGISTRATE JUDGE

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