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Ponce v. Wells Fargo Bank, N.A.

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

September 12, 2019

MICHAEL PONCE, Plaintiff,
v.
WELLS FARGO BANK, N.A., BROKER SOLUTIONS, INC., U.S. BANK, NA AS TRUSTEE FOR SECURITIZED TRUST GINNIE MAE REMIC 2018-034 TRUST, JOHN DOES 1-100 INCLUSIVE, Defendants.

          ORDER

          ROSEANN A. KETCHMARK, JUDGE

         Before 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 PROVISIONALLY GRANTED.

         Background

         Pro se 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. (Id.)

         Legal Standard

         To 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 omitted).

         Federal 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.

         I. Discussion

         As to 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.

         A. 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.

         B. Count III: Plaintiff Does Not State a Claim for Quiet Title

         To 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).

         Here, 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 ...


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