United States District Court, E.D. Missouri, Eastern Division
JULIAN L. WITENGIER and MARCELINE M. WITENGIER, Plaintiffs,
U.S. BANK NA, et al., Defendants.
MEMORANDUM AND ORDER
E. JACKSON, UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of defendant U.S.
Bank, N.A. to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). Plaintiffs have responded in opposition,
and the issues are fully briefed.
January 21, 2010, defendant U.S. Bank issued a loan to
plaintiffs for the purchase of real property, secured by a
note and deed of trust. The parties recorded the deed of
trust with the St. Louis County Recorder of Deeds on February
2, 2010. Several years later, on August 1, 2014, the parties
purportedly entered into a loan modification
contend that plaintiffs defaulted on the loan, and plaintiffs
do not dispute that claim. [Doc. #17 at 1 n.1]. Plaintiffs allege
that they contacted Anthony Catlin, a U.S. Bank employee who
was assigned to help them find a solution to their mortgage
difficulties. However, Catlin did not help them but instead
referred them to SouthLaw, P.C..
September 14, 2016, defendant U.S. Bank appointed SouthLaw as
the successor trustee under the deed of trust. [Doc. #15-1].
The Recorder of Deeds filed that instrument on September 21,
2016. Id. Defendants state that on September 26,
2016, SouthLaw sent notice to plaintiffs that a trustee's
sale would take place on October 13, 2016. [Doc. #17 at 2;
Doc. #15 at 1]. That notification also allegedly identified
SouthLaw as the successor trustee. [Doc. #17 at 2]. Plaintiffs
successfully halted the foreclosure after filing for
bankruptcy. [Doc. #15 at 2].
initiated this action pro se in the Twenty-First
Judicial Circuit Court of Missouri (County of St. Louis)
after the attempted foreclosure. See [Doc. #1-1].
Defendant U.S. Bank subsequently removed the action to this
Court on the basis of diversity of citizenship jurisdiction,
28 U.S.C. § 1332. Plaintiffs are Missouri citizens and
defendants U.S. Bank and Catlin are Ohio
citizens. In the complaint, plaintiffs assert claims
of breach of contract and breach of the covenant of good
faith and fair dealing. They also assert a quiet title
base their claims on a number of alleged defects in the both
the security instruments and the attempted foreclosure
process. First, with regard to the security instruments,
plaintiffs allege that (1) they did not receive an executed
copy of the modified loan agreement, (2) Southlaw was not
properly designated as the successor trustee,  and (3) U.S. Bank
fraudulently assigned the note and concealed its
“true” holder. [Doc. #1-1 at 4, 10]. Plaintiffs
additionally contend that defendants did not provide adequate
notice of the trustee's sale. Specifically, defendants
allegedly (1) directed notice to a “doe tenant, ”
(2) sent notice fewer than twenty days before the scheduled
foreclosure sale, and (3) did not record such notice in
“official records.” Id. at 4;
see Mo. Rev. Stat. § 443.325. Furthermore,
plaintiffs claim that upon inquiry, defendants did not
provide a “single point of contact” and evaded
plaintiffs' attempts to ascertain the reinstatement
amount. Id. at 5-8. Finally, plaintiffs summarily
assert that U.S. Bank and Southlaw perpetrated “a
series of fraudulent transactions” by “modifying
loan documents, manipulating property values and making loans
that were in violation of a multiplicity of [s]tate
laws.” Id. at 9.
instant motion, defendant U.S. Bank argues that Counts I and
II assert a claim for attempted wrongful foreclosure, which
is not a cause of action under Missouri law. The defendant
also argues that plaintiffs' contract claims are negated
by plaintiffs' allegation that the alleged contract with
U.S. Bank is “ineffective.” Finally, defendant
U.S. Bank argues that Count II should be dismissed because
plaintiffs have failed to allege the requisite elements of a
quiet title action under Missouri law.
purpose of a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure is to test the legal
sufficiency of the complaint. The factual allegations of a
complaint are assumed true and construed in favor of the
plaintiff, “even if it strikes a savvy judge that
actual proof of those facts is improbable.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)
(citing Swierkiewicz v. Sorema N.A., 534 U.S. 506,
508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319,
327 (1989) (“Rule 12(b)(6) does not countenance . . .
dismissals based on a judge's disbelief of a
complaint's factual allegations”); Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974) (a well-pleaded
complaint may proceed even if it appears “that a
recovery is very remote and unlikely”). The issue is
not whether the plaintiff will ultimately prevail, but
whether the plaintiff is entitled to present evidence in
support of his claim. Id. A viable complaint must
include “enough facts to state a claim to relief that
is plausible on its face.” Bell Atlantic
Corp., 550 U.S. at 570; see also Id. at 563
(“no set of facts” language in Conley v.
Gibson, 355 U.S. 41, 45-46 (1957), “has earned its
retirement.”). “Factual allegations must be
enough to raise a right to relief above the speculative
level.” Id. at 555. A district court may
consider public records on a motion to dismiss. Stahl v.
United States Dep't of Agric., 327 F.3d 697 (8th
of Contract and Covenant of Good Faith & Fair
Missouri law, extrajudicial foreclosure is not a statutory
right but rather “‘a contractual right
established by the power of sale provision in the deed of
trust.'” Mildfelt v. Circuit Court of Jackson
Cty., Mo., 827 F.2d 343, 346 (8th Cir. 1987) (quoting
Fed. Nat'l Mortg. Ass'n v. Howlett, 521
S.W.2d 428, 432 (Mo. 1975) (en banc)). And, under Missouri
law, a breach of contract claim requires a showing of (1)
“the existence of an enforceable contract between the
parties, ” (2) “mutual obligations arising under
the terms of the contract, ” (3) ...