United States District Court, W.D. Missouri, Western Division
PRENTIS E. BOLES, Plaintiff,
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ADVANCE MORTGAGE CORPORATION; HOMEWARD RESIDENTIAL, INC.; OCWEN LOAN SERVICING, LLC; WELLS FARGO BANK, N.A.; DAVID BARNES APPRAISAL SERVICES, INC.; DOES 1-10; Defendants.
ORDER GRANTING MOTION TO DISMISS
GREG KAYS, District Judge.
This case arises from pro se Plaintiff Prentis Boles' ("Boles") allegation that Defendant United States Department of Veterans Affairs conspired with the other Defendants to inflate the appraised value of a house he purchased in 2007 and refinanced in 2008. Boles alleges the purpose of the inflated appraisal was to coax him into taking out a larger loan.
Now before the Court is Defendant David Barnes Appraisal Services, Inc.'s Motion to Dismiss Plaintiff's Complaint (Doc. 41) for insufficient process, insufficient service of process, and failure to state a claim. For the following reasons, the motion is GRANTED.
The relevant allegations in the Complaint (Doc. 5) and the documents attached to it are as follows. On March 11, 2007, Plaintiff Prentis Boles signed a contract to buy a house located at 3232 S. Cedar Avenue in Independence, Missouri ("the Property"), for $115, 000. To finance the purchase, Boles used benefits from the Veterans Administration Loan Eligibility Program to obtain a mortgage. His loan broker and the United States Department of Veterans Affairs ("the VA") told him that the mortgage terms depended on the outcome of an appraisal. The broker and the VA insisted that they choose the appraiser, and they chose Defendant David Barnes Appraisal Services, Inc.'s ("Barnes").
On or about April 16, 2007, Barnes appraised the Property at $115, 000 as of April 12, 2007. It based this appraisal on an evaluation of four comparable homes in the area. The appraisal listed the VA as the client and any VA-approved lender as the "Intended User." The Complaint does not allege that Boles viewed the appraisal prior to April 16, much less before signing the sales contract on March 11.
The lender subsequently agreed to loan Boles $114, 408 to purchase the property, and the VA approved Boles for $112, 000 of VA loan eligibility benefits. Boles then closed on the Property.
Between April 2007 and February 2008, Boles made the required monthly payments. In the spring of 2008, Boles refinanced and took out a new loan. From February 2008 to February 2013, Boles made each of his monthly payments. After experiencing financial hardship, Boles applied for, and received, a loan modification in February 2013 for a new loan in the amount of $118, 426.18.
After receiving the loan modification, a realtor told Boles that houses in his neighborhood had never been valued at more than $100, 000, and that he had grossly overpaid for the Property. On February 12, 2014, Boles hired Tucker Appraisals ("Tucker") to perform a retroactive appraisal of the Property as of April 30, 2007. Based on the value of three comparable homes in the area, Tucker valued the Property at $95, 000 as of April 30, 2007. Interestingly, both appraisers used the same house as a comparable. The Barnes appraisal valued this house at $116, 000 as of April 12, 2007; the Tucker appraisal valued it at $99, 930 as of April 30, 2014.
Boles alleges Barnes knew its appraisal was "misleading, fraudulent, and false." Compl. at ¶¶ 26-27. He also claims that he relied on the Barnes appraisal in agreeing to take out the first loan, that he would not have taken the loan out without the appraisal, and that he justifiably relied on the appraisal because Barnes held itself out as a VA-certified appraiser.
The Complaint asserts five counts, three of which are brought against "all Defendants": Intentional Misrepresentation (Count Three), Negligent Misrepresentation (Count Four), and Fraudulent Concealment (Count Five).
Standard of Review
A complaint may be dismissed if it fails "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). To avoid dismissal, a complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff need not demonstrate the claim is probable, only that it is more than just possible. Id.
In reviewing a pro se complaint, the court construes it liberally and draws all reasonable inferences from the facts in the Plaintiff's favor. Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 849 (8th Cir. 2014). The court generally ignores materials outside the pleadings but may consider materials that are part of the public record or materials that are ...