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 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
KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT.
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.
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
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). 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).
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:
Blythe McDonnell 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.
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.
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.
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.
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.
though other Defendants, retained Sound Mind pursuant to
Section 9 of the Deed of Trust, which governs how the lender
protects its interest in ...