United States District Court, W.D. Missouri, Southern Division
ROSEANN A. KETCHMARK, JUDGE
the Court is Defendant Wells Fargo Bank, N.A. (“Wells
Fargo”)'s Motion to Dismiss for Failure to State a
Claim. (Doc. 8.) The motion is fully briefed. (Docs. 9, 16,
19.) After careful consideration, the motion is
Plaintiff, Michael Ponce, originally filed this action in the
Circuit Court of Dallas County, Missouri, on March 25, 2019.
The action was properly removed to this court on April 24,
2019, by Defendant Wells Fargo solely based on diversity of
citizenship. In his Complaint, Plaintiff alleges five causes
of action: Lack of Standing/Wrongful Foreclosure; Breach of
Contract Against Defendant Broker Solutions, Inc.; Quiet
Title; Temporary Restraining Order and For Injunctive Relief;
and Declaratory Relief. (Doc. 1-1.) All causes of action
apparently relate to a mortgage on Plaintiff's real
property located at 72 State Road, Ff, Long Lane, MO 65590.
survive a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim for 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)). “A
claim is facially plausible where the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Wilson v. Arkansas Dept. of Human
Serv., 850 F.3d 368, 371 (8th Cir. 2017) (internal
quotation marks and citation omitted). While a complaint does
not need to include detailed factual allegations, the
complaint must allege more than a sheer possibility that a
defendant acted unlawfully to survive a motion to dismiss.
Wilson, 850 F.3d at 371 (citation omitted). When
considering a motion to dismiss for failure to state a claim,
the well-pled allegations in the complaint must be accepted
as true and construed in the light most favorable to the
nonmoving party. Osahar v. U.S. Postal Service, 263
Fed.Appx. 753, 864 (8th Cir. 2008). Although the Court
liberally construes pro se pleadings, a complaint
“still must allege sufficient facts to support the
claims advanced.” Stone v. Harry, 364 F.3d
912, 914 (8th Cir. 2004). The Court will not “supply
additional facts” or “construct a legal theory
for plaintiff that assumes facts that have not been
pleaded.” Id. (quotation marks and citation
Courts sitting in diversity apply state substantive law.
See generally Morgantown Machine & Hydraulics of
Ohio, Inc. v. American Piping Products, Inc., 887 F.3d
413, 415 (8th Cir. 2018) (citing Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188
(1938)). Wells Fargo relies on Missouri law in their briefs
and no party argues another state's substantive law
should apply. Therefore, the Court looks to Missouri
substantive law to resolve the issues.
Count I, Wells Fargo argues Plaintiff does not state a cause
of action for his lack of standing/wrongful foreclosure
claims. As to Count II, Wells Fargo does not move to dismiss
and thus Count II will remain. As to Count III, Wells Fargo
argues Plaintiff does not state a claim for quiet title. As
to Count IV, Wells Fargo argues Plaintiff does not state a
claim for injunctive relief. As to Count V, Wells Fargo
argues Plaintiff has not sufficiently pled Plaintiff is
entitled to any declaration of rights. Additionally, as to
Counts I, III, IV, and V, Wells Fargo argues Plaintiff (1)
does not have standing to challenge the securitization of his
mortgage, and (2) Plaintiff has not made any meaningful
allegations with respect to Wells Fargo. Each of these
arguments will be addressed in turn.
Count I: Plaintiff Does Not State a Cause of Action for Lack
of Standing/Wrongful Foreclosure
Missouri recognizes actions for wrongful foreclosures in both
tort and equity. See generally Dobson v. Mortg. Elec.
Registration Sys./GMAC Mortg. Corp., 259 S.W.3d 19, 22
(Mo.Ct.App. 2008). “A wrongful foreclosure at law claim
and a wrongful foreclosure in equity claim both require that
a foreclosure sale occurred.” Smith v. Select
Portfolio Servicing, Inc., No. 2:16-CV-04203-NKL, 2016
WL 4942029, at *2 (W.D. Mo. Sept. 15, 2016) (citations
omitted). “Missouri law is clear that a cause of action
does not exist where a foreclosure sale has not occurred,
such as for an attempted wrongful foreclosure.”
Id. (citing Reese v. First Mo. Bank and Trust
Co., 736 S.W.2d 371, 373 (Mo. 1987) (en banc)
(“[O]ur authorizing a cause of action for wrongful
attempted foreclosure would effectively nullify the purposes
for having the expeditious non-judicial foreclosure deeds of
trust.”)). Therefore, Plaintiff must allege a
foreclosure sale actually took place. Id. Here,
Plaintiff has not alleged or pleaded a foreclosure sale has
occurred. Thus, Plaintiff has failed to state a claim for
wrongful foreclosure and Defendant's motion as to Count I
will be provisionally granted.
Count III: Plaintiff Does Not State a Claim for Quiet
state a claim for quiet title under Missouri law, a plaintiff
must allege (1) ownership of the described real estate; (2)
the defendant claims title or interest in said real estate;
and (3) the defendant's claim is adverse and prejudicial
to the plaintiff. Smith v. Select Portfolio Servicing,
Inc., No. 2:16-CV-04203-NKL, 2016 WL 4942029, at *3
(W.D. Mo. Sept. 15, 2016) (citing Howard v.
Radmanesh, 586 S.W.2d 67, 68 (Mo.Ct.App. 1979)).
Additionally, Plaintiff “has the burden to prove title
superior to the other party, not superior to the whole world,
and must prevail on the strength of its own title and not on
any weaknesses in the title of the other party.”
Ollison v. Vill. Of Climax Springs, 916 S.W.2d 198,
203 (Mo. 1996).
Plaintiff alleges to be the owner of real estate. (Doc. 1-1,
¶ 3). Plaintiff further alleges Defendants lack any
legal rights or title in the property. (Doc. 1-1, ¶ 52).
However, Plaintiff fails to plead facts demonstrating his
interest in the property is superior to that of the
Defendants. In fact, Plaintiff expressly alleges a mortgage
on his property exists and does not allege he has paid off
the mortgage or that the property is now unencumbered.
See Smith, 2016 WL 4942029, at *3 (finding Plaintiff
failed to state a claim for quiet title where he did not
allege his mortgage was paid off or the property was
unencumbered). These facts suggest Plaintiff's interest
in the property would actually be inferior and not ...