United States District Court, W.D. Missouri, Western Division
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.
ORDER GRANTING MOTION TO DISMISS
KAYS, CHIEF JUDGE
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).
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.
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.
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).
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.
point, the Petition is unclear as to when, Plaintiff Blythe
McDonnell 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. 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.
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.
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.
retained FAS pursuant to Section 9 of the Deed of Trust,
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 ...