Gunnell v. Fannie Mae et al

Filing 19

MEMORANDUM DECISION granting 18 Motion to Dismiss. Signed by Judge Ted Stewart on 2/13/13. (ss)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

RUEL GUNNELL,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

vs.

FANNIE MAE, et al.,

Case No. 2:11-CV-407 TS

Defendants.

This matter is before the Court on Defendants’ Motion to Dismiss. For the reasons
discussed below, the Court finds that Plaintiff’s Complaint fails to state a claim upon which
relief may be granted and allowing amendment would be futile. Therefore, the Court will grant
the Motion and dismiss this case.
I. BACKGROUND
On July 23, 2003, Plaintiff executed a deed of trust against real property located in
Draper, Utah, securing his payment obligations under a $322,700 note executed the same day.
The deed of trust identifies America’s Wholesale Lender as the lender, MERS as beneficiary
“solely as nominee for Lender and Lender’s assigns,” and Scott Lundberg as trustee.

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On June 9, 2009, MERS recorded a substitution of trustee, naming ReconTrust as
successor trustee. On March 5, 2010, MERS assigned the beneficial interest under the deed of
trust to BAC Home Loans Servicing, LP FKA Countrywide Home Loans Servicing, LP. On
March 8, 2010, ReconTrust recorded a notice of default on the property.
Plaintiff filed his Complaint on May 4, 2011. The parties agreed to stay this matter in an
effort to engage in settlement negotiations. The Court granted the stay on June 27, 2011.
Plaintiff was offered and executed a Home Affordable Modification Agreement on
December 16, 2011. ReconTrust recorded a cancellation of notice of default on June 13, 2012.
On December 27, 2012, Defendants sought to lift the stay. Plaintiff did not respond and
the stay was lifted on January 10, 2013. That same day, Defendants filed the instant Motion to
Dismiss. To date, Plaintiff has failed to respond.
II. STANDARD OF REVIEW
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.1 Plaintiff must provide “enough facts to
state a claim to relief that is plausible on its face.”2 All well-pleaded factual allegations in the
complaint are accepted as true and viewed in the light most favorable to the nonmoving party.3
But, the court “need not accept . . . conclusory allegations without supporting factual
1

GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.

1997).
2

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007).

3

GFF Corp., 130 F.3d at 1384.
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averments.”4 “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.”5
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.”6 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.’”7
Plaintiff is proceeding pro se in this matter. “A pro se litigant’s pleadings are to be
construed liberally and held to a less stringent standard than formal pleadings drafted by
lawyers.”8 This means “that if the court can reasonably read the pleadings to state a valid claim
on which the plaintiff could prevail, it should do so despite the plaintiff’s failure to cite proper
legal authority, his confusion of various legal theories, his poor syntax and sentence construction,

4

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).
5

Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

6

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (citing 5B
WRIGHT & MILLER § 1357 (3d ed. 2004 & Supp. 2007)).
7

Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007) (quoting Jacobsen v.
Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)).
8

Hall, 935 F.2d at 1110.
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or his unfamiliarity with pleading requirements.”9 “Dismissal of a pro se complaint for failure to
state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has
alleged and it would be futile to give him an opportunity to amend.”10
III. DISCUSSION
Plaintiff’s Complaint contains thirteen separate causes of action. Those causes of action
will be discussed below. However, rather than going through each claim individually, the Court
will group those claims that are similar in nature.
A.

NON-JUDICIAL FORECLOSURE
Plaintiff’s first and second causes of action challenge the constitutionality of Utah’s non-

judicial foreclosure statute. As a non-judicial foreclosure has not occurred in this matter and a
cancellation of notice of default has been recorded, Plaintiff’s claims on this point are moot.11
Therefore, these claims must be dismissed. Further, the Court finds that Plaintiff has failed to
state a claim under 42 U.S.C. §§ 1981, 1982, 1983, and 1988, as set forth in his First Cause of
Action.
B.

SECURITIZATION
The bulk of Plaintiff’s Complaint, his second through ninth causes of action, involve

various claims that have all been rejected by the Utah courts. Plaintiff argues that Defendants
lack the authority to foreclose, that his mortgage has been securitized, and that Defendants must
9

Id.

10

Perkins v. Kan. Dep’t of Corrs., 165 F.3d 803, 806 (10th Cir. 1999).

11

See Evans v. ReconTrust Co., N.A., 2:11-CV-547 DAK, 2012 WL 1076267, at *3 (D.
Utah Mar. 29, 2012).
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show him the note before they can commence foreclosure proceedings. Because no foreclosure
has occurred and a cancellation of notice of default has been recorded, many of these claims are
moot. The rest have been repeatedly rejected.12 Therefore, these claims must be dismissed.
C.

HAMP-BASED CLAIMS
Plaintiff’s tenth through thirteen causes of action are all based upon the Home Affordable

Modification Program (“HAMP”). In his Tenth Cause of Action, Plaintiff alleges that he is a
third-party beneficiary of HAMP. Plaintiff’s Eleventh Cause of Action alleges that Defendants
were negligent in their evaluation of Plaintiff’s request for a HAMP modification. In his Twelfth
and Thirteenth Causes of Action, Plaintiff brings claims for infliction of emotional distress and
breach of contract because Defendants denied his request for a modification under HAMP.
As an initial matter, the Court finds that all of these claims are now moot because
Plaintiff has now entered into a Home Affordable Modification Agreement.13 Therefore, these
claims must be dismissed. Even if these claims were not moot, this Court has repeatedly held
that there is no private right of action under HAMP and that parties may not bring other claims
that merely disguise HAMP-based claims.14 Moreover, Plaintiff has not alleged allegations
sufficient to withstand a motion to dismiss on any of these claims. Therefore, they fail on the
merits.

12

See Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc., 680
F.3d 1194, 1203-04 (10th Cir. 2011).
13

See Docket No. 18, Ex. 6.

14

See Shurtliff v. Wells Fargo Bank, N.A., No. 1:10-CV-165 TS, 2010 WL 4609307, at *3
(D. Utah Nov. 5, 2010).
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IV. CONCLUSION
It is therefore
ORDERED that Defendants’ Motion to Dismiss (Docket No. 18) is GRANTED. The
Clerk of the Court is directed to close this case forthwith.
DATED February 13, 2013.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

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