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Brisby v. Moynihan

United States District Court, S.D. Mississippi, Northern Division

June 30, 2014

JUMAANE BRISBY, Plaintiff,
v.
BRIAN MOYNIHAN, et al., Defendants.

ORDER

DANIEL P. JORDAN, III, District Judge.

This removed pro se case is before the Court on the motion to dismiss [3] filed by Defendants Brian Moynihan; Bank of America, N.A., successor by merger to BAC Home Loan Servicing, L.P. f/k/a Countrywide Home Loans Servicing, L.P.; and Tange Cain, to which Defendant Emily Kaye Courteau has filed a joinder [6]. Because Plaintiff has failed to plead any facially plausible claims, the motion is granted.

I. Facts and Procedural History

On December 20, 2007, Plaintiff Jumaane Brisby obtained a $39, 900.00 loan from Countrywide Bank, FSB. The note was secured by a Deed of Trust covering Brisby's property on McCluer Road in Jackson, Mississippi. The Deed of Trust listed Recontrust Company, N.A., as trustee and MERS as nominee and beneficiary for Countrywide. In August 2010, MERS assigned the Deed of Trust to BAC Home Loans Servicing, L.P. Cain signed the assignment on behalf of MERS. At some point thereafter, Brisby defaulted on his loan payments, and in May 2013, Bank of America, N.A., successor by merger to BAC Home Loan Servicing, L.P. ("BANA") appointed Emily Kaye Courteau, an attorney with Morris & Associates, as the Substitute Trustee on the Deed of Trust.

On July 17, 2013, Brisby sent a document to Morris & Associates entitled Qualified Written Request, Complaint, Dispute of Debt and Validation of Debt Letter, TILA Request. On September 17, 2013, Brisby sent a Notice of Conditional Acceptance Pending Proof of Claim to BANA, MERS, and Morris & Associates. In very general terms, both documents disputed BANA's rights under the Deed of Trust. On September 25, 2013, Courteau conducted a foreclosure sale at which BANA purchased the property.

Aggrieved by the foreclosure, Brisby filed this lawsuit against Moynihan, BANA's CEO; BANA, Cain, and Courteau in Hinds County Chancery Court on December 17, 2013. Defendants removed the case to this Court and filed their motion to dismiss. Following the issuance of two show-cause orders, Brisby filed a one-page, nonsubstantive response, and Defendants filed a timely reply. The Court has personal and subject-matter jurisdiction and is prepared to rule.

II. Standard

In considering a motion under Rule 12(b)(6), the "court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

To overcome a Rule 12(b)(6) motion, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555 (citations and footnote omitted). "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." Iqbal, 556 U.S. at 678.

Ordinarily, in ruling on a Rule 12(b)(6) motion, the Court should look only to the face of the complaint to assess whether the plaintiff states a claim. However, the Court may consider documents outside the complaint that are "(1) attached to the motion; (2) referenced in the complaint; and (3) central to the plaintiff's claims." Maloney Gaming Mgmt., L.L.C. v. St. Tammany Parish, 456 F.App'x 336, 341 (5th Cir. 2011) (citations omitted). Here, most of the factual background was gleaned from documents submitted by Defendants in support of their motion. The documents submitted are central to Plaintiff's claims and are therefore properly before the Court.

In this case, Brisby is proceeding pro se. "It is well-established that pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers.'" Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (citing Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981)). "However, regardless of whether the plaintiff is proceeding pro se or is represented by counsel, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.'" Id. (citing S. Christian Leadership Conference v. Supreme Court of the State of La., 252 F.3d 781, 786 (5th Cir. 2001) (additional citation omitted)).

III. Analysis

Brisby's 28-page Complaint, supplemented by an 11-page Judicial Notice of Adjudicative Facts, does not contain separate counts or assert discrete claims. Defendants have characterized Brisby's Complaint as possibly asserting one or more of the following nine claims: (1) wrongful foreclosure, (2) theft, (3) fraud, (4) fraudulent conveyance, (5) violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), (6) violation of the Fair Debt Collection Practices Act ("FDCPA"), (7) violation of the Real Estate Settlement Procedures Act ("RESPA"), (8) violation of the Federal Deposit Insurance Act ("FDIA"), and violation of 18 U.S.C. ยง 1001. The Court's review of the Complaint does ...


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