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Poole v. GMAC Mortgage, LLC

United States District Court, E.D. Missouri, Eastern Division

January 9, 2018

DWAYNE F. POOLE, et al., Plaintiffs,



         The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Doc. 10] This matter is before the Court on GMAC Mortgage, LLC's (“GMAC”) Motion to Dismiss filed on December 5, 2017. [Doc. 39] For the reasons set forth below, the Court will grant Defendant's motion to dismiss the case.


          On July 10, 2006, the Pooles took out a mortgage on their property at 220 River Rock Drive, in Union, Missouri. When the Pooles allegedly defaulted on their payments, the property was foreclosed. GMAC purchased the property at a trustee's sale on May 4, 2011, and subsequently conveyed it to another party. [Doc. 17-1 ¶ 9] On March 29, 2011, the Pooles filed a pro se Petition for Wrongful Foreclosure in the Circuit Court of Franklin County, Missouri. The Pooles vacated the property at issue in December 2011.

         On July 28, 2011, the Pooles filed for Chapter 13 bankruptcy in the Eastern District of Missouri, triggering an automatic stay of other proceedings pursuant to 11 U.S.C. § 362. On August 18, 2011, GMAC filed a Motion for Order Granting Relief from the Automatic Stay to Proceed with Action to Recover Possession of Real Property and to Take Possession and Dispose of Any Personal Property Found Therein Combined with Notice of Hearing. [Doc. 17-1.] On September 15. 2011, the Honorable Kathy A. Surratt-States granted the motion and issued an order stating that the foreclosure was lawful and any action to recover possession would be exempted from the automatic stay.

         On October 24, 2011, GMAC removed the Pooles' wrongful foreclosure action to the United States District Court for the Eastern District of Missouri. [Doc. 1] On November 2, 2011, GMAC filed a Motion to Dismiss the Pooles' claim and a memorandum in support of the motion. [Doc. 8] The Pooles filed a Response on December 21, 2011 [Doc. 16] and GMAC filed a Reply on January 6, 2012 [Doc. 17].

         On May 14, 2012, GMAC filed for Chapter 11 bankruptcy in the Southern District of New York, triggering an automatic stay of other proceedings, including this action, pursuant to 11 U.S.C. § 362(a). On July 13, 2012, the Bankruptcy Court entered a Final Supplemental Order (“Order”). The Order allowed certain claims to proceed against GMAC during the bankruptcy process. On November 18, 2013, Defendant filed a Motion to Dismiss Plaintiffs' Petition for Wrongful Foreclosure [Doc. 24] and a memorandum in support of the motion [Doc. 27], in which Defendant argued that, pursuant to the Order, this Court could rule on its Motion to Dismiss notwithstanding the automatic stay. On March 28, 2014, the Court denied Defendant's motion, finding that Defendant had failed to demonstrate that the Court retained authority to rule on the motion despite the automatic stay, and ordered that the case be administratively closed “until such time as the bankruptcy proceedings have been concluded or Court action is otherwise required.” [Doc. 31] Additionally, the Court ordered that all pending motions in the case be denied without prejudice, and must be refiled if the case was subsequently reopened. Id.

         On May 16, 2017, Defendant filed a Motion to Reopen the case for the “limited purpose of dismissal or other final adjudication.” [Doc. 32] Defendant asserted that Plaintiffs have expressed a wish to rent or repurchase the property at issue in this action, and the “appearance of this case on title to the property prevents further transfer or sale of the property.” Id. In its memorandum in support of the motion, GMAC stated that “the Court may reopen the action . . . because the bankruptcy case's confirmation order has now been entered and the Chapter 11 plan has been effective since December 2013.” [Doc. 34 at 1] Defendant argued that the automatic stay terminated on the confirmation date of the Plan, pursuant to the operation of Section 362(c) of the Bankruptcy Code. The Court granted Defendants Motion to Reopen on November 14, 2017 [Doc. 35], and ordered Defendant to file a new Motion to Dismiss.

         On December 5, 2017, Defendant filed this motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6). [Doc. 39]. Plaintiffs have not responded to the Motion to Dismiss, and the time to do so has passed. Additionally, mail that this Court sent to Plaintiffs notifying them of the decision to reopen the case was returned without a forwarding address, and neither of the Pooles has notified the Court of any change of address[1]. [Doc. 38]


         In this case's long and somewhat tortured procedural history, this Court has never had occasion to address the substance of any of Plaintiffs' claims. In their petition for wrongful foreclosure, Plaintiffs asserted a veritable laundry list of conclusory claims. After parsing Plaintiffs' complaint, it appears that in addition to their claim for wrongful foreclosure, Plaintiffs also requested relief based on violations of the Fair Debt Collection Practices Act (“FDCPA”), the Real Estate Settlement Procedures Act (“RESPA”), the Truth in Lending Act (“TILA”), the Fair Credit Billing Act (“FCBA”), and allegations of common fraud, as well as a host of other allegations that are too vague to decipher, and all of which appear to be too baseless to address.[2]Plaintiffs appear to base their claims on a general allegation that because Defendant has not provided them with an original Note with “wet ink signature, ” Defendant could not have a valid right to foreclose on their property. Plaintiffs request relief in the form of an Order of this Court “denying Defendant's right to foreclose, ” and any other relief to which they are entitled, including litigation costs. Defendant argues that Plaintiffs' claims are without merit and must be dismissed because they fail to state a claim upon which relief can be granted.

         Motion to Dismiss for Failure to State a Claim

          I. Legal Standard

         A pleading is deficient and may be dismissed under Rule 12(b)(6) if a plaintiff fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a motion to dismiss for failure to state a claim, a plaintiff's allegations must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 8 “does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. 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.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). The reviewing court must accept the plaintiff's factual allegations as true and construe them in plaintiff's favor, but it is not required to accept the legal conclusions the plaintiff draws from the facts alleged. Iqbal, 556 U.S. at ...

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