United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
case is before the Court on Defendant Ann L. Mell's
Motion to Dismiss, [Doc. No. 7] and Defendant Al-Yasiry's
Motion to Dismiss, [Doc. No. 13]. For the reasons set forth
below, the Motions will be granted.
March 11, 2019, Plaintiff, acting pro se, filed this lawsuit
in the St. Francois County, Missouri, Circuit Court against
Defendants concerning a property Plaintiff purchased in 2009
using a loan from the United States Department of
Agriculture, (“USDA”). Defendant Mell
subsequently removed this case to federal court pursuant to
28 U.S.C. §1442(a)(1).
November 2009, Plaintiff purchased property located at 3416
Hildebrecht Road, Doe Run, Missouri 63637 (the
“Hildebrecht Property”). To finance the purchase,
Plaintiff sought and obtained a $122, 000 loan from the USDA.
Plaintiff executed a Deed of Trust in favor of the USDA,
which the USDA recorded with the St. Francois County Recorder
of Deeds at Document No. 2009R-10926, and rerecorded at
condition of the loan, Plaintiff was required to obtain
property insurance. Plaintiff applied for and received a
homeowner's insurance policy from Farm Bureau Town and
Country Company of Missouri (hereinafter, “Farm
Bureau”). In September 2010, the Hildebrecht Property
suffered damage from fire. Plaintiff submitted a claim to
Farm Bureau, which denied coverage.
December 28, 2010, Farm Bureau filed a lawsuit in Missouri
state court naming Plaintiff and the USDA. See Mo.
No. 10SF-CC00289 (St. Francois County) (the “Farm
Bureau Lawsuit”). Farm Bureau alleged that on the
application for insurance, Plaintiff concealed the fact that
he had prior felony convictions. Farm Bureau alleged that the
USDA, as the mortgagee on the Hildebrecht Property, was
“subject to the same terms, exclusions, and conditions
that apply to the named insured.” The United States
counter-claimed, alleging Farm Bureau owed the United States
for the property loss under the homeowner's policy
because the United States was the mortgagee on the property.
Bureau and the USDA settled the claims between them, whereby
Farm Bureau agreed to pay the USDA an undisclosed amount of
money. On February 21, 2014, the USDA and Farm Bureau agreed
to a voluntary dismiss the USDA from the Farm Bureau Lawsuit.
USDA applied the settlement proceeds to the outstanding
balance of Plaintiff's loan, although the settlement was
insufficient to satisfy the outstanding principal balance.
Farm Bureau is still prosecuting the Farm Bureau Lawsuit
against Plaintiff in the state court.
stopped making payments to the USDA on the remaining balance
of the $122, 000 loan. On February 21, 2012, the USDA sent
via certified mail an acceleration letter pursuant to the
promissory note signed by Plaintiff, demanding full payment
of the outstanding loan balance and accrued interest. When
Plaintiff failed to comply, the USDA contacted the caretaker
of Plaintiff's property, notifying him that the USDA
intended to foreclose on Plaintiff's property.
April 30, 2018, the Substitute Trustee under the Deed of
Trust conducted a foreclosure sale of the Hildebrecht
Property. The foreclosure sale netted a total of eleven
thousand dollars ($11, 000.00) in proceeds. Because the
foreclosure sale did not satisfy the outstanding principal
balance on the loan, there were no excess proceeds to remit
suit was brought against Defendants Ann L. Mell, Substitute
Trustee and Salam A. Al-Yasiry, purchaser of the property at
the foreclosure sale.
raises six counts in his petition. In Count I Plaintiff
requests declaratory and injunctive relief seeking a
determination that the foreclosure sale of the Hildebrecht
Property was improper and that Defendant Mell did not have
authority as Substitute Trustee under the deed of trust to
conduct the foreclosure sale. Count II seeks to quiet title
in his favor of the property. Count III alleges Defendant
Mell was negligent by foreclosing on the property. Count IV
alleges that Defendant Mell breached her fiduciary duty to
him by foreclosing on the Hildebrecht Property. In Count V,
Plaintiff alleges Defendant Mell wrongfully foreclosed the
Property. Count VI, Plaintiff alleges that both defendants
acted willfully, wantonly and maliciously in that they knew
or should have known of their lack of “legal standing
and/or lack of interest in the Hildebrecht Property prior to
and following the Trustee's Sale.”
Mell moves to dismiss for lack of subject matter
jurisdiction. Defendant Mell moves to dismiss for lack of
subject matter jurisdiction and for failure to state a claim.