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McDonnell v. Nationstar Mortgage LLC

United States District Court, W.D. Missouri, Western Division

December 28, 2017

BLYTHE AND SEAN MCDONNELL, Plaintiffs/Counter-claim Defendants,
NATIONSTAR MORTGAGE LLC, and Defendant/Counter-claim Plaintiff, FIELD ASSET SERVICES, LLC d/b/a Assurant Field Services, LLC, Defendant.



         This lawsuit arises from allegations that Defendant Nationstar Mortage LLC (“Nationstar”) and Defendant Field Asset Services, LLC (“FAS”) unlawfully entered Plaintiff Blythe McDonnell's home and damaged it because Nationstar incorrectly believed she had defaulted on her mortgage and abandoned the property. Now before the Court is FAS's Motion to Dismiss Count I of Plaintiff's Petition (Doc. 38) and Plaintiff's Motion for Leave to File First Amended Complaint (Doc. 44).

         Because Count I in both the initial Petition and the proposed First Amended Complaint fails to plead a viable Missouri Merchandising Practices Act (“MMPA”) claim against FAS, the motion to dismiss is GRANTED and the motion for leave to file an amended complaint is GRANTED IN PART AND DENIED IN PART.

         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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). This requires more than pleading “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. “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 the complaint, the court construes it liberally and draws all reasonable inferences from the facts in the plaintiff's favor. Monson v. Drug Enforcement Admin., 589 F.3d 952, 961 (8th Cir. 2009). The court generally ignores materials outside the pleadings but may consider materials that are part of the public record or materials that are necessarily embraced by the pleadings. Miller v. Toxicology Lab. Inc., 688 F.3d 928, 931 (8th Cir. 2012).

         Factual Background

         Count I of Plaintiffs' initial Petition is brought under the Missouri Merchandising Practices Act, Mo. Rev. Stat. § 407.020-.025. Counts II through VI allege common law trespass, malicious trespass, conversion, breach of contract, and negligence, respectively.

         At some point, the Petition is unclear as to when, Plaintiff Blythe McDonnell[1] granted a deed of trust secured by real property (“the Property”), a house, located in Kansas City, Missouri. On February 7, 2013, the deed of trust was assigned to Nationstar, apparently so it could service the loan.[2] And at some point, it is unclear when, Nationstar hired FAS to investigate whether the Property had been abandoned, and if so, to secure it.

         On September 20, 2106, FAS left a notice posted on the door of the house stating that it had inspected the property and found it vacant. The notice advised Plaintiffs to call a specific telephone number in the event it was not vacant. On September 22, 2016, Plaintiff Sean McDonnell called the phone number and advised FAS that the house was not vacant, and that he did not permit anyone to enter the house.

         Despite Mr. McDonnell's phone call, FAS entered the house and removed personal property, changed the locks on the house, and winterized it. As part of winterizing the house, FAS employees allegedly turned off power at the breaker box, rendering the house's sump pump inoperable. A rainstorm subsequently caused water to enter the partially finished basement which, because the sump pump had been rendered inoperable by FAS's actions, led to standing water in the basement and significant property damage.

         Nationstar retained FAS pursuant to Section 9 of the Deed of Trust, [3] which concerns how the lender protects its interest in the Property. In relevant part, Section 9 states:

If . . . (c) Borrower has abandoned the Property, then Lender may do and pay for whatever is reasonable or appropriate to protect Lender's interest in the Property and rights under this Security Instrument, including . . . securing and/or repairing the Property. . . . Securing the Property includes, but is not limited to, entering the Property to make repairs, change locks, replace or board up doors and windows, drain water from pipes, eliminate building or other code violations or dangerous conditions, and have utilities turned on or ...

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