United States District Court, W.D. Missouri, Western Division
Fernando J. Gaitan, Jr. United States District Judge.
pending before the Court is defendant Bank of America,
N.A.'s (“BANA”) and Ocwen Financial
Corporation's (“Ocwen”) Motion to Consolidate
Cases (Doc. # 4) and Defendants' Motions to Dismiss (Doc.
December 4, 2007, Judith A. Kuhlman and Paul W. Kuhlman,
entered into a promissory note in the principal amount of
$165, 243.12. The Note was secured the same day by a Deed of
Trust. The Note and Deed of Trust related to real property
located at 3000 NE 76th Street, Gladstone,
Missouri 64119 (“Tract 1”). There is a parcel of
property adjoining the northern border of Tract 1, which is
also the subject of the lawsuit. This parcel will be referred
to as the “Adjacent Property” or “Tract
2.” A residence straddles both of these properties.
Approximately 40% of the residence is located on Tract 1 and
the remaining 60% is located on Tract 2.
Kuhlman died on August 9, 2010. On or about April 2012, the
Kuhlmans defaulted on the payment obligations under the Note.
In May 2013, plaintiff states that he contacted Judith
Kuhlman about the property located at 3000 N.E.
76th Street, Gladstone, Missouri. Plaintiff states
he agreed to make all necessary repairs to the property in
exchange for equity in the property. Plaintiff states that he
agreed to take a Quitclaim Deed to the property and assume
any and all responsibility for liens on the property, finish
repairs at his own expense and assist Judith Kuhlman in other
matters. Plaintiff also alleges that Judith Kuhlman does not
recall signing any note or deed or trust regarding securing
this property for a mortgage to Bank of America. Plaintiff
states that since acquiring the properties, he has furnished
goods and services to the Residence thereby making
significant, material, valuable and beneficial improvements
to the property. Plaintiff alleged that Judith Kuhlman
quitclaimed her interests in the property to him on June 1,
2013 and he filed the quitclaim with the Clay County Recorder
of Deeds on June 3, 2013. On June 7, 2013 plaintiff filed a
“Petition to Remove Lien” in the Clay County
District Court. Defendants removed the first case to this
Court on October 28, 2013. (Case No. 13-1055). In that case,
plaintiff Charles Emmons sued Bank of America, PRLAP, Inc.
and Ocwen Financial Corp. for Quiet Title and Quantum Meruit.
On May 5, 2014, Bank of America filed a counterclaim against
plaintiff Charles Emmons and a third-party complaint against
Judith Kuhlman and other entities. On July 7, 2014 Bank of
American and Ocwen Financial Corporation filed a Motion to
Dismiss for Failure to State a Claim. Plaintiff's counsel
failed to file a response to the motion or to an Order to
Show Cause. On September 3, 2014, the Court dismissed
plaintiff's First Amended Complaint in Case No. 13-1055.
The claims which remain in that case are Bank of
America's counterclaim for Quiet Title against Charles
Emmons and Bank of America's Third-Party Complaint
against Emmons, Judith Kuhlman and the Kuhlman Estate for
Reformation of Instruments, Quiet Title, Judicial Foreclosure
and Breach of Contract. On October 1, 2015, the Court stayed
the proceedings in Case No. 13-1055 in order to give the
parties an opportunity to resolve the matter. The parties
have been unsuccessful in resolving the litigation.
September 2, 2015, Charles Emmons filed a petition in the
Circuit Court of Clay County to Review Lien and Quiet Title
and in the alternative for Compensation Quantum Meruit. Named
as defendants were Bank of America, Ocwen, PRLAP, Inc. and
Judith Kuhlman. Defendants removed that case to this Court on
October 14, 2015 (Case No. 15-799). Bank of America and Ocwen
have filed the instant Motion to Dismiss this action and have
also moved to consolidate Case No. 15-799 with Case No.
survive a motion to dismiss under 12(b)(6), ''a
complaint must contain sufficient factual matter, accepted as
true, to state a claim for relief that is plausible on its
face.'' Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007)). A pleading that merely pleads
''labels and conclusions'' or a
''formulaic recitation'' of the elements of a
cause of action, or ''naked assertions''
devoid of ''further factual enhancement''
will not suffice. Id. (quoting Twombly).
''Determining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.'' Id. at 1950.
Under Fed.R.Civ.P. 12(b)(6) we must accept the
plaintiff's factual allegations as true and grant all
reasonable inferences in the plaintiff's favor.
Phipps v. FDIC, 417 F.3d 1006, 1010 (8th
Defendants' Motion to Dismiss
state that on December 4, 2007, Judith A Kuhlman and Paul W.
Kuhlman entered into a promissory note. Defendants state that
the promissory note was secured by a Deed of Trust. The Note
and the Deed of Trust relate to real property commonly
referred to as 3000 NE 76th Street, Kansas City,
Missouri 64119 (“Tract 1”). The parcel of
property adjoining the northern border of the Property is
also the subject of the lawsuit (“Tract 2”).
Defendants argue that plaintiff is unable to assert a claim
for quiet title, because he “has made the cardinal
error of attempting to use an alleged infirmity in another
party's interest to establish his own interest.”
(Suggestions in Support of Motion to Dismiss, p. 4).
Under Missouri law, any person claiming title or interest in
real property “may institute an action against any
person or persons having or claiming to have any title,
estate or interest in such property.” Mo.Rev.Stat.
§ 527.150(1). To maintain a cause of action for quiet
title, a plaintiff must plead: (1) ownership of the described
real estate; (2) that the defendant claims title or interest
in the subject premises; and (3) such claim is adverse and
prejudicial to plaintiff.
White v. CTX Mortgage, LLC, No. 13-0335-CV-W-DGK,
2014 WL 1806705, *6 (W.D.Mo. May 7, 2014). Plaintiffs must
plead “facts showing they, in fact, have a superior
title to the property at issue.” Dufrenne v.
Citimortgage, Inc., No. 4:09CV1524 HEA, 2009 WL 5103275,
*3 (E.D.Mo. Dec.17, 2009). Defendants state that while a
quitclaim deed is effective for purposes of conveying title,
an individual who takes title by quitclaim deed does so
subject to all outstanding interests and liens. Because
Emmons interest in the property is subject to a first
priority lien interest due to the Deed of Trust and the
default under the Loan, plaintiff has failed to adequately
allege superiority of title.
opposition, plaintiff states that he has alleged that he
“acquired fee simple interest in these Properties
(Tract 1 and Tract 2) by deed from Defendant Judith A.
Kuhlman in exchange for good and valuable consideration
received by her.” (Petition, Doc. 1-1, p.3 ¶ 7).
Plaintiff also states that “[s]ince acquiring the
Properties Plaintiff furnished goods and services to the
Residence thereby making significant, material, valuable, and
beneficial improvements to the Property.” (Petition, p.
3, ¶ 10). Plaintiff requests that the Court quiet ...