Summerlin v. Shellpoint Mortgage Services

165 F. Supp. 3d 1099, 2016 WL 778027, 2016 U.S. Dist. LEXIS 25197
CourtDistrict Court, N.D. Alabama
DecidedFebruary 29, 2016
DocketCase No.: 2:15-cv-00039-RDP
StatusPublished
Cited by4 cases

This text of 165 F. Supp. 3d 1099 (Summerlin v. Shellpoint Mortgage Services) is published on Counsel Stack Legal Research, covering District Court, N.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Summerlin v. Shellpoint Mortgage Services, 165 F. Supp. 3d 1099, 2016 WL 778027, 2016 U.S. Dist. LEXIS 25197 (N.D. Ala. 2016).

Opinion

MEMORANDUM OPINION

R. DAVID PROCTOR, UNITED STATES DISTRICT JUDGE

I. Introduction

The court has before it Defendant Shell-point Mortgage Services’s Motion to Dismiss Plaintiffs Amended Complaint (Doc. # 14), filed April 24, 2015. Shellpoint filed a Brief in Support of its Motion to Dismiss (Doc. # 15). Plaintiff1 had the opportunity to file a responsive brief but did not do so. Therefore, Shellpoint’s Motion is ripe for review. For the reasons outlined below, the court finds that the Motion is due to be granted and this case is due to be dismissed with prejudice.

II. Facts and Procedural History

Plaintiff brought this case pro se to stop foreclosure of her home in Jefferson County, Aabama, and alleged violations of the Real Estate Settlement Practices Act (“RESPA”) and the Fair Debt Collection Practices Act (“FDCPA”) relating to a notice of service transfer, violations of the [1104]*1104FDCPA concerning a pre-foreclosure notice, and fraud upon origination of her mortgage loan, among other things. The court discerns the following allegations supporting those claims from Plaintiffs Amended Complaint and the many, non-enumerated exhibits attached to the Amended Complaint.2

On May 6, 2008, Plaintiff received a loan from Empire Equity Group Inc. d/b/a 1st Metropolitan Mortgage, which was secured by a mortgage and promissory note (the “Note”). (Doc. # 13). The agent and payee on the Note was Taylor, Bean & Whitaker Mortgage Corp. (“TB&W”). (Id.). The Note was supported by a Direct Endorsement Approval for a HUD/FHA-Insured Mortgage. (Id.). With an Assignment of Mortgage dated May 6, 2008 (the “Assignment”), from Mortgage Electronic Registration Systems, Inc. (“MERS”), acting as the nominee for TB&W to BAC Home Loans Servicing, LP (“BAC”), MERS transferred and assigned to BAC, “its successors, transferees, and assigns forever, all right, title and interest of [MERS] in and to” Plaintiffs mortgage. (Id.). Sirote & Permutt, P.C., was the vendor for the Assignment. (Id.).

Bank of America, N.A., thereafter became the successor by merger to BAC, and, utilizing the law firm of McFadden, Lyon & Rouse, L.L.C. (“McFadden”), instituted foreclosure actions in September 2012. (Doc. # 13). Plaintiff sent McFadden letters disputing Bank of America’s ownership of the debt and declaring the debt “null and void.” (Id.). McFadden sent Plaintiff a letter on February 4, 2013, stating that alternatives to foreclosure exist, but otherwise the foreclosure sale is scheduled for March 18, 2013. (Id.). Plaintiff does not state what occurred next. However, effective August 1, 2013, Bank of America placed Plaintiffs account with Resurgent Mortgage Servicing (“Resurgent”) for mortgage servicing. (Id.).

On October 30, 2013, Resurgent sent Plaintiff a letter stating that it had not received any payments since it began servicing the loan, and that the loan had been past due since January 1, 2009. (Doc. # 13). Resurgent stated in that letter it had placed a restriction on Plaintiffs account preventing further contact with Plaintiff due to correspondence from her requesting a “cease and desist.” (Id.). However, Resurgent stated that if it received no further information from Plaintiff within thirty days of the date of the letter’s receipt, it “will assume this dispute is resolved.” (Id). It does not appear Plaintiff sent any more information to Resurgent during that time period.

Subsequently, effective March 1, 2014, Resurgent became part of Shellpoint Mortgage Servicing (“Defendant” or “Shellpoint”). (Docs. # 13, 15-1). On November 11, 2014, Defendant Elizabeth Lo-[1105]*1105efgren of Sirote & Permutt, on behalf of Shellpoint, sent Plaintiff a foreclosure notice setting forth the total amount owed on the debt but also providing contact information for Plaintiff to discuss alternatives to foreclosure. (Doc. # 13). It appears from Ms. Loefgren’s December 12, 2014 letter that she received from Plaintiff a letter on December 8, 2014.3 (Id.). Ms. Loefgren responded to Plaintiff in a letter dated December 12, 2014, stating that she forwarded Plaintiffs letter to Shellpoint for review and a response. (Id.).

On December 17, 2014, Plaintiff filed her Complaint in the Circuit Court of Jefferson County, Alabama. (Doc. # 1-2). Defendant removed the case to this court in January 2015. (Doc. # 1). Pursuant to the court’s March 19, 2015 Order (Doc # 12), which directed Plaintiff to amend her Complaint to comply with the Federal Rules of Civil Procedure (among other things),4 Plaintiff filed an Amended Complaint against Defendants Loefgren and Shellpoint on April 10, 2015.5 (Doc. # 13).

Defendant timely responded by filing a Motion To Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. # 14). In its brief, Defendant argues that Plaintiffs claims are confusing and do not meet pleading standards ordered by this court and required under the Federal Rules of Civil Procedure. (Doc. # 15). Defendant contends the Amended Complaint simply repeats the four causes of action in the original Complaint (the court reads the pleadings as including more claims than that), and advances certain arguments as to why all of Plaintiffs claims “lack merit” and' should be dismissed with prejudice. (See id.). Further, Defendant asserts Plaintiffs claims misconstrue the law or misstate the facts, and thus fail to state a claim for relief, and that some claims are barred by the statute of limitations. (Id.). Defendant includes as exhibits a Notice of Transfer of Servicing dated February 14, 2015, and the initial Complaint.6 (Docs. # 15-1,15-2).

III. The Amended Complaint

The Amended Complaint is a shotgun pleading. It is jumbled and difficult to follow. Its style is further in violation of the court’s directives in its March 19, 2015 Order instructing Plaintiff, to amended her pleadings. (Doc. # 12). The court would be entitled to dismiss the Complaint on these [1106]*1106grounds alone. Nevertheless, the court will also address the other reasons why Plaintiffs Amended Complaint is due to be dismissed. Construing Plaintiffs Amended Complaint liberally, the court reads it as setting forth four “sections” presenting seven causes of action.7 (See Doc. # 13).

Plaintiff alleges in section one that Shellpoint lacks legal capacity to foreclose on a property in Alabama for the following reasons. (Doc. # 13). On November 11, 2014, Ms. Loefgren commenced foreclosure actions (i.e., preparing, signing, and sending a Notice of Acceleration of a Promissory Note and Mortgage to Plaintiff (the “Notice”)) on Plaintiffs home on behalf of Shellpoint. (Id,.). Plaintiff avers that Shellpoint (1) is neither a resident of, nor licensed to conduct business in Alabama, and (2) has not obtained a non-residential bond prior to or following the sending of the Notice. (Id.).

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Bluebook (online)
165 F. Supp. 3d 1099, 2016 WL 778027, 2016 U.S. Dist. LEXIS 25197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/summerlin-v-shellpoint-mortgage-services-alnd-2016.