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Simms v. Nationstar Mortg., LLC

United States District Court, E.D. Missouri, Eastern Division

September 3, 2014

MICHAEL W. SIMMS, Plaintiff,
v.
NATIONSTAR MORTGAGE, LLC, et al., Defendants

Page 928

For Michael W. Simms, Plaintiff: Gregory P. White, LEAD ATTORNEY, WHITE LAW OFFICE, Clayton, MO.

For Nationstar Mortgage, LLC, Federal National Mortgage Association, Defendants: Matthew J. Gartner, LEAD ATTORNEY, HUSCH BLACKWELL, LLP, St. Louis, MO.

For St. Louis County Department of Revenue, Defendant: Robert E. Fox, Jr., LEAD ATTORNEY, ST. LOUIS COUNTY COUNSELOR'S OFFICE, Clayton, MO.

For Metropolitan St. Louis Sewer District, Defendant: Kenneth D. Goins, LEAD ATTORNEY, METROPOLITAN ST. LOUIS SEWER DISTRICT, St. Louis, MO.

Page 929

MEMORANDUM AND ORDER

CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE.

This diversity matter is before the Court on defendant South & Associates, P.C.'s (" South" ) Motion to Dismiss Plaintiff's First Amended Petition (" Petition" ), and plaintiff Michael W. Simms' (" plaintiff" ) Motion to File Second Amended Complaint. The motions are fully briefed and ready for decision. For the following reasons, the Court will grant in part and deny in part South's motion to dismiss the Petition, and grant in part and deny in part plaintiff's motion for leave to file a second amended complaint. Plaintiff will be granted leave to file a second amended complaint in accordance with this Memorandum and Order.

I. Background

This case arises out of a foreclosure sale that occurred on November 27, 2012, of real property owned by plaintiff and commonly known as 6175 Newton Terrace Drive, St. Louis, Missouri 63129. South, a law firm, was appointed successor trustee under a deed of trust held by defendant Nationstar Mortgage, LLC (" Nationstar" ). South sold the property at foreclosure in its capacity as successor trustee. Count I of the Petition asserts a claim of wrongful foreclosure against Nationstar, the Federal National Mortgage Association (" Fannie Mae" ) and South. The Petition alleges there is no evidence that South mailed plaintiff notice of the foreclosure sale as required by Missouri law, alleges that plaintiff did not receive written notice of the sale, and asserts that the sale is void as a result. Count I asks that the foreclosure be set aside as unlawful and also seeks actual and punitive damages. Count II asserts a claim to quiet title against the defendants.

Plaintiff originally filed this action in state court alleging wrongful foreclosure and naming as defendants Nationstar, Fannie Mae, St. Louis County and the Metropolitan St. Louis Sewer District (" MSD" ). Complete diversity was lacking on the face of the petition as plaintiff, St. Louis County and MSD are citizens of the State of Missouri. Nationstar removed

Page 930

the case to federal court on the basis of diversity jurisdiction, 28 U.S.C. § 1332(a)(1), claiming that St. Louis County and MSD were nominal parties fraudulently joined to defeat diversity whose citizenship should be disregarded for purposes of diversity jurisdiction. Shortly after removal, plaintiff filed the Petition adding South as a defendant, and also filed a motion to remand.

In the Memorandum and Order of April 18, 2014 (Doc. 31), the Court concluded that South was a nominal party whose citizenship should be disregarded for purposes of diversity jurisdiction, and that St. Louis County and MSD were fraudulently joined and plaintiff's claims against them should be dismissed. The Court further concluded that complete diversity of citizenship existed among the real parties in ...


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