Anderson v. Suntrust Mortgage et al
Filing
25
MEMORANDUM DECISION AND ORDER granting 7 Motion to Dismiss ; granting 12 Motion to Dismiss ; finding as moot 16 Motion to Reconsider Based Upon New Evidence; finding as moot 17 Motion to Strike ; finding as moot 21 Motion to Strike Plaintiff's Motion to Reconsider. Signed by Judge Ted Stewart on 5/6/2011. (las)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
PAUL E. ANDERSON
Plaintiff,
MEMORANDUM DECISION AND
ORDER GRANTING MOTIONS TO
DISMISS
vs.
SUNTRUST MORTGAGE, INC.,
STERLING EDMUNDS, HOME LOAN
CORPORATION, and BEN STREUSAND,
Case No. 1:10-CV-178 TS
Defendants.
The Court has before it Defendants SunTrust Mortgage, Inc. and Home Loan
Corporation’s separate Motions to Dismiss under Fed.R.Civ.P. 12(b)(6).1 Also before the Court
is Plaintiff’s Motion to Reconsider Based Upon New Found Evidence2 and Defendants’ Motions
to Strike Plaintiff’s Motion to Reconsider as an unauthorized sur-reply.3 As explained in more
detail below, the Court finds that Plaintiff has failed to plead a cognizable legal claim upon
which relief may be granted. The Court will, therefore, grant Defendants’ Motions. As the Court
1
Docket Nos. 7 & 12.
2
Docket No. 16.
3
Docket Nos. 17 & 21.
1
will dismiss Plaintiff’s Complaint, Plaintiff’s Motion to Reconsider and Defendants’ related
Motions to Strike are moot and will, therefore, be denied.
I. PLAINTIFF’S COMPLAINT
Plaintiff’s pro se Complaint, removed to this Court on October 27, 2010, alleges the
following:
On or about March 2, 2010, Plaintiff sent Defendants4 a letter entitled “Conditional
Acceptance And Opportunity to Cure.” Plaintiff alleges that this letter “tender[ed] full settlement
in legal tender funds held in escrow on a pending foreclosure on Plaintiff’s home” and demanded
that Defendants produce “the original, unaltered (wet-ink signature) promissory note.”5 Plaintiff
contends that Defendants failed to respond to this letter and, as a result of such failure,
Defendants tacitly admitted that they no longer possess the promissory note, are not “holders in
due course,” and have committed fraud.6
Plaintiff alleges that on March 12, 2010, Plaintiff sent another letter to Defendants
entitled “Notice of Counterfeit Security and Other Violations of Federal Law And Statement of
Facts.”7 Again, Plaintiff maintains that Defendants failed to respond and, by such failure, tacitly
admitted to various assertions allegedly contained in this letter. Plaintiff contends that by failing
to respond, Defendants admitted, by not denying, that Plaintiff’s note had been “illegally”
4
Plaintiff’s Complaint fails to distinguish among the various Defendants, instead referring
only to them collectively as “Defendants.”
5
Docket No. 1, Ex. 1, ¶¶ 13-14.
6
Id. ¶ 14.
7
Id. ¶ 15.
2
converted into a security, that Defendants profited substantially by such security and have failed
to credit Plaintiff any of these profits, that Defendants failed to register this security, and that
Defendants violated RICO, usury, and antitrust laws.8 Plaintiff alleges that Defendants’
securitization of his promissory note grants him “an automatic right of rescission of the original
contract and Plaintiff exercised said right to cancel and rescind said contract.”9
Plaintiff further alleges that, by failing to respond to these letters, Defendants have (1)
admitted to a tort claim for damages for the trebled amount of $967,204.77.10 Additionally,
Plaintiff contends that Defendants must accept his offer to “clear title to the subject property, pay
an additional $150,000 to Plaintiff for any loss, damage, and injury he has sustained; remove
all/any negative comments on Plaintiff’s credit report attributed to this transaction,” and produce
all “wet ink signature” documents that prove Plaintiff’s claims.11 Plaintiff asserts that if
Defendants fail to do so, they have already “tacitly agreed to waive all rights to object to the
terms of the contract and agreed that judgment in the amount of $1,117,204.77, as well as clear
title to the subject property be entered against Defendants and all agents et als.”12
In Plaintiff’s prayer for relief, Plaintiff requests the Court enter a declaratory judgment
which (1) bars Defendants from further collecting on any of his alleged debts; (2) dismisses the
8
Id. ¶¶ 16-19.
9
Id. ¶ 19.
10
Id. ¶ 22.
11
Id. ¶ 24.
12
Id.
3
allegedly fraudulent mortgage; (3) orders Defendants to remove all negative comments from
Plaintiff’s credit report; (4) directs Defendants to pay him his tort claim damages of $967,204.77
and an additional $150,000 for Plaintiff’s loss, damage, and injury; (5) declares that Defendants
committed fraud, violated RICO, usury, and antitrust laws; and (6) permanently restrains
Defendants from filing any action against Plaintiff.
II. LEGAL STANDARD
As noted previously, Plaintiff is proceeding pro se and the Court, therefore, construes his
pleadings liberally. As the Tenth Circuit has held, however, “[w]hile we of course liberally
construe pro se pleadings, [Plaintiff’s] pro se status does not excuse the obligation of any litigant
to comply with the fundamental requirements of the Federal Rules of Civil and Appellate
Procedure.”13 Pro se litigants must “follow the same rules of procedure that govern other
litigants.”14
In considering a motion to dismiss under Rule 12(b)(6), all well-pleaded factual
allegations, as distinguished from conclusory allegations, are accepted as true and viewed in the
light most favorable to Plaintiff as the nonmoving party.15 Plaintiff must provide “enough facts
to state a claim to relief that is plausible on its face.”16 All well-pleaded factual allegations in the
amended complaint are accepted as true and viewed in the light most favorable to the nonmoving
13
Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994).
14
Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (internal quotation marks and
citation omitted).
15
Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002).
16
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007).
4
party.17 But, the court “need not accept . . . conclusory allegations without supporting factual
averments.”18 “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence
that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is
legally sufficient to state a claim for which relief may be granted.”19 The Supreme Court has
explained that a plaintiff must “nudge[ ][his] claims across the line from conceivable to
plausible” to survive a motion to dismiss.20
In considering the adequacy of a plaintiff’s allegations in a complaint subject to a motion
to dismiss, a district court not only considers the complaint, but also “documents incorporated
into the complaint by reference, and matters of which a court may take judicial notice.”21 Thus,
“notwithstanding the usual rule that a court should consider no evidence beyond the pleadings on
a Rule 12(b)(6) motion to dismiss, ‘[a] district court may consider documents referred to in the
complaint if the documents are central to the plaintiff’s claim and the parties do not dispute the
documents’ authenticity.’”22
17
GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.
1997).
18
S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir. 1998); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
19
Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).
20
Twombly, 550 U.S. at 547.
21
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (citing 5B
WRIGHT & MILLER § 1357 (3d ed. 2004 & Supp. 2007)).
22
Alvarado v. KOBTV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007) (quoting Jacobsen v.
Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)).
5
III. DISCUSSION
Defendants contend that Plaintiff’s Complaint fails to identify a legally cognizable claim
which would entitle him to his requested relief. As such, Defendants argue that Plaintiff’s
Complaint is subject to dismissal under Fed.R.Civ.P. 12(b)(6). In Plaintiff’s response, he does
not directly contend with Defendants’ arguments, but instead repeats many of the assertions
included in his Complaint and also attempts to invoke irrelevant snippets of admiralty law which
he argues entitles him to relief.
The Court has carefully reviewed Plaintiff’s Complaint and agrees with Defendants that
Plaintiff has failed to plead a legally cognizable claim. Plaintiff has failed to identify what legal
authority supports his assertion that Defendants’ failure to respond to his two letters—containing
various and, at times, incomprehensible demands—entitles him to release from his mortgage, his
property free and clear of all competing claims, and damages in the amount of $1,117,204.77.
The Court is aware of no legal authority which allows for such relief. Although the Court can
identify specific words which relate to legal claims—i.e., RICO, fraud, tort, rescission—Plaintiff
has not identified how these claims are applicable. Simply providing the Court with a list of
words which may have legal significance is insufficient to survive a Motion to Dismiss under
Fed.R.Civ.P. 12(b)(6). The Court, therefore, will grant Defendants’ Motions.
IV. CONCLUSION
It is therefore
ORDERED that Defendants’ Motions to Dismiss (Docket Nos. 7 & 12) are GRANTED.
It is further
6
ORDERED that Plaintiff’s Motion to Reconsider Based Upon New Evidence (Docket
No. 16) and Defendants’ Motions to Strike (Docket Nos. 17 & 21) are DENIED AS MOOT.
The Clerk of the Court is directed to close this case forthwith.
DATED May 6, 2011.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?