Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McDonnell v. Nationstar Mortgage LLC

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

May 22, 2018

BLYTHE and SEAN MCDONNELL, Plaintiffs/Counter-claim Defendants,
v.
NATIONSTAR MORTGAGE LLC, and Defendant/Counter-claim Plaintiff, FIELD ASSET SERVICES, LLC a/k/a ASSURANT FIELD ASSET SERVICES, SOLUTIONSTAR FIELD SERVICES, LLC, SPECTRUM FIELD SERVICES, INC., and SOUND MIND REAL ESTATE, LLC, Defendants.

          ORDER GRANTING MOTION TO DISMISS

          GREG KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT.

         This lawsuit alleges Defendant Nationstar Mortage LLC (“Nationstar”), the assignee on Plaintiff Blythe McDonnell's home mortgage deed of trust, and the other Defendants unlawfully entered her home and caused damage to it. Nationstar has filed a counterclaim alleging breach of the mortgage note and deed of trust.

         Now before the Court is Defendant Sound Mind Real Estate, LLC's (“Sound Mind”) Motion to Dismiss Count I of Plaintiffs' First Amended Complaint (Doc. 65). Because Count I of the First Amended Complaint (Doc. 54) fails to plead a viable Missouri Merchandising Practices Act (“MMPA”) claim against Sound Mind, the motion is GRANTED.

         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). However, because the motion presents matters outside the pleadings, namely, a work order from Field Asset Services hiring Sound Mind to provide property preservation services, “the motion must be treated as one for summary judgment under Rule 56.” See Fed. R. Civ. P. 12(d).

         Factual Background

         Count I of Plaintiffs' First Amended Complaint is brought under the MMPA, Mo. Rev. Stat. § 407.020-.025. The allegations relevant to that count and the pending motion are as follows:

         Plaintiff Blythe McDonnell[1] granted a deed of trust secured by a house, in Kansas City, Missouri. On February 7, 2013, the deed of trust was assigned to Nationstar, apparently so it could service the loan. At some point, it is unclear when, Nationstar hired Defendant Spectrum Field Services, Inc., (“Spectrum”) to inspect the premises.

         Spectrum inspected the property on September 18, 2016. Based on a comment from a neighbor, Spectrum reported the house was vacate. On September 20, 2106, Specturm left a notice 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 21, 2016, Plaintiffs were at the house and saw the notice on the door. Plaintiff Sean McDonnell called the number the next day and advised that the house was not vacant, and that he did not permit anyone to enter the house.

         Around this time, Defendant Field Asset Services, LLC, (“FAS”) hired Sound Mind to perform property preservation services at the house. On September 24, 2016, Sound Mind-acting on behalf of Nationstar, FAS, and Defendant Solutionstar Field Services, LLC-entered the property by climbing over a locked fence and mowed the grass, trimmed the trees, and removed personal items from the yard. Later that same day, Mr. McDonnell called the phone number again and reiterated that Defendants were not allowed or permitted to return to the property.

         On September 25, 2016, Sound Mind entered the house, changed the lock on the back door, and winterized the house. As part of winterizing the house, its employees turned off power at the breaker box, which rendered the home's sump pump inoperable. A rainstorm subsequently caused water to enter the partially finished basement; it could not be pumped out, and standing water caused significant damage in the basement.

         Nationstar, though other Defendants, retained Sound Mind pursuant to Section 9 of the Deed of Trust, which governs how the lender protects its interest in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.