United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Millsap & Singer,
PC's Motion to Dismiss, [Doc. No. 6] and Defendant
Flagstar Bank's Motion to Dismiss, [Doc. No. 10].
Plaintiff has not responded to either motion, however, she
has filed a pro se pleading styled “Response
to Motion to Transfer to Federal Court and Motion to Deny
Transfer to Federal Court.” Defendants move to dismiss
Plaintiff's Petition for failure to state a claim upon
which relief can be granted under Fed.R.Civ.P. 12(b)(6). For
the reasons set forth below, Defendants' Motions will be
November 24, 2010, Plaintiff executed a deed of trust in
favor of JLB Corporation, granting a security interest on
property located at 1121 Bopp Road, St. Louis, Missouri
63131-4129 (the “Property”), to secure a
residential mortgage loan in the amount of $257, 954.00. The
Deed of Trust was recorded on December 9, 2010, in the real
property records at Book 19269, page 287.
Plaintiff defaulted on her mortgage loan payments, Flagstar
filed a lawsuit on August 6, 2014, seeking a judgment of
foreclosure and to clear title as to a UCC Financing
Statement recorded as against the Property.
Circuit Court for St. Louis County entered summary judgment
in favor of Flagstar on July 7, 2015, ordering that
“the Property be sold at public sale either by
Sheriff's Execution on this Judgment, by trustee's
sale under the power of sale given in said Deed of Trust
being foreclosed or by any other legally available method . .
Missouri Court of Appeals for the Eastern District affirmed
the grant of summary judgment on October 18, 2016.
received the Notice of Trustee's Sale scheduling the
foreclosure sale of the Property on June 23, 2017. The
Property was sold at foreclosure sale on June 23, 2017.
filed her four-count Petition on June 20, 2017 in the Circuit
Court of St. Louis County, State of Missouri seeking to
enjoin a foreclosure sale scheduled for June 23, 2017. After
the Petition was filed, the foreclosure sale was held.
Flagstar Bank, FSB was the successful purchaser in the amount
of $217, 300.00. The Successor Trustee's Deed listing
Flagstar Bank, FSB as the new owner of the property was
recorded on June 29, 2017 in Book 22588 at Page 1532. Count I
of Plaintiff's Complaint and Petition is not titled. It
contains references to TILA and rescission. Count II is
brought seeking a preliminary injunction. Count III seeks
permanent injunction and Count IV is titled Quiet Title.
Since the foreclosure sale has occurred, Counts II and III
will be dismissed as moot.
to Dismiss Standard
purpose of a Rule 12(b)(6) motion to dismiss is to test the
legal sufficiency of a complaint so as to eliminate those
actions “which are fatally flawed in their legal
premises and designed to fail, thereby sparing litigants the
burden of unnecessary pretrial and trial activity.”
Young v. City of St. Charles, 244 F.3d 623, 627 (8th
Cir.2001) quoting Neitzke v. Williams, 490 U.S. 319,
326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A complaint
must be dismissed for failure to state a claim upon which
relief can be granted if it does not plead “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 554, 570 (2007)(abrogating the prior “no set of
facts” standard set forth in Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Courts
“do not require heightened fact pleading of specifics,
but only enough facts to state a claim to relief that is
plausible on its face.” Id., 550 U.S. at 555.
A complaint must set forth factual allegations which are
enough to “raise a right to relief above the
speculative level.” Id. However, where a court
can infer from those factual allegations no more than a
“mere possibility of misconduct”, the complaint
must be dismissed. Cole v. Homier Distributing Co.,
Inc., 599 F.3d 856, 861 (8th Cir.2010)(citing
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173
L.Ed.2d 868.1950 (2009)).
passing on a motion to dismiss, a court must view the
allegations of the complaint in the light most favorable to
the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94
S.Ct. 1683, 40 L.Ed.2d 90 (1974); Kottschade v. City of
Rochester, 319 F.3d 1038, 1040 (8th Cir.2003). While a
complaint challenged by a Rule 12(b)(6) motion does not need
detailed factual allegations, a plaintiff must still provide
the grounds for relief, and neither “labels and
conclusions” nor “a formulaic recitation of the
elements of a cause of action” will suffice.
Twombly, 550 U.S. at 555. (internal citations
omitted). “Although the pleading standard is liberal,
the plaintiff must allege facts-not mere legal
conclusions-that, if true, would support the existence of the
claimed torts.” Moses.com Securities v.
Comprehensive Software Systems, Inc., 406 F.3d 1052,
1062 (8th Cir.2005) citing Schaller Tel. Co. v. Golden
Sky Systems, 298 F.3d 736, 740 (8th Cir.2002). In
viewing the complaint in the light most favorable to the
plaintiff, the court should not dismiss it merely because the
court doubts that the plaintiff will be able to prove all of
the necessary allegations. Bennett v. Berg, 685 F.2d
1053, 1058 (8th Cir.1982). The primary issue for a court to
consider is not whether the plaintiff will ultimately prevail
in the lawsuit, but whether the complaint adequately states a
claim; and therefore, the plaintiff is entitled to present
evidence in support of that claim. A complaint may not be
dismissed based upon a district court's assessment that
the plaintiff will fail to present evidentiary support for
the complaint's allegations or will ultimately fail to
prove one or more claims to the satisfaction of the
factfinder. Twombly, 550 U.S. at 556; Neitzke v.
Williams, 490 U.S. at 327 (“What Rule 12(b)(6)
does not countenance are dismissals based upon a judge's
disbelief of a complaint's factual allegations.”).
However, “[w]here the allegations show on the face of
the complaint there is some insuperable bar to relief,
dismissal under Rule 12(b)(6) is appropriate.”
Benton v. Merrill Lynch & Co., 524 F.3d 866, 870
(8th Cir. 2008). Further, courts “‘are not bound
to accept as true a legal conclusion couched as a factual
allegation.'” Ashcroft v. Iqbal, 556 U.S.
662, 129 S.Ct. 1937, 173 L.Ed.2d 868.1950 (2009)(quoting
Twombly, 550 U.S. at 555). When considering a motion to
dismiss, a court can “begin by identifying pleadings
that, because they are no more than conclusions, are not
entitled to the assumption of truth.” Ashcroft v.
Iqbal, 129 S.Ct. at 1950. Legal conclusions must be
supported by factual allegations to survive a motion to
dismiss. Id. With this plausibility standard in
mind, this Court turns to an examination of the
Congress enacted TILA in 1968 to ‘assure a meaningful
disclosure of credit terms so that the consumer will be able
to compare more readily the various credit terms available to
him and avoid the uninformed use of credit.'”
Koons Buick Pontiac GMC, Inc. v. Nigh,543 U.S. 50,
53-54, 125 S.Ct. 460, 160 L.Ed.2d 389 (2004) (quoting 15
U.S.C. § 1601(a)). TILA “requires a creditor to
disclose information relating to such things as finance
charges, annual percentage rates of interest, and
borrowers' rights, and it prescribes civil liability for
any creditor who fails to do so.” Koons Buick,543 U.S. 54. TILA applies to businesses and individuals when
the following four criteria are met: (1) credit is offered or
extended to consumers; (2) the offering or extension of
credit is done regularly; (3) the credit is ...