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Griffin v. Hsbc Mortgage Services, Inc.

United States District Court, N.D. Mississippi, Greenville Division

July 1, 2015

LAKISHA ROCHELLE GRIFFIN, Plaintiff,
v.
HSBC MORTGAGE SERVICES, INC., HSBC FINANCE CORPORATION, AMERICAN SECURITY INSURANCE, CO., ASSURANT, INC., LSI REAL ESTATE TAX, CORELOGIC SERVICES, CORESTAR FINANCIAL GROUP, LLC, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., MERSCORP HOLDINGS, INC., JOHN DOES AFFILIATES FOR CORESTAR FINANCIAL GROUP 1-5, JOHN DOES INSURANCE DEFENDANTS 6-10, FEES AND CHARGES DEFENDANTS 16-20, HSBC JOHN DOES 21-25, OTHER JOHN DOES 26-30, CALIBER HOME LOANS, INC., AMERIPRISE INSURANCE COMPANY, IDS PROPERTY CASUALTY INSURANCE COMPANY, TRUCK INSURANCE EXCHANGE, AND JOHN DOES SERVICES, Defendants.

ORDER ON PENDING MOTIONS

DEBRA M. BROWN, District Judge.

This multi-count action arises from a dispute concerning the servicing of a debt consolidation loan. Plaintiff Lakisha Rochelle Griffin contends that the loan originator and servicer (along with their agents, assigns and successors), and various insurance companies mishandled her loan payments in breach of the deed of trust and in violation of other state and federal laws. Defendant Assurant, Inc. ("Assurant"); Defendant American Security Insurance Company ("American Security"); and Defendants Mortgage Electronic Registration Systems, Inc., and Merscorp. Holdings, Inc. (collectively, "MERS"); have moved to dismiss Griffin's Second Amended Complaint. Docs. #30, #32, #24. Griffin has moved to strike much of the evidence submitted by American Security in support of its motion to dismiss. Doc. #51.

I

Relevant Allegations

In early 2006, Griffin "sought out a debt consolidation loan [that] would cover the debt on her home, her property taxes, her hazard insurance, and her flood insurance with one predictable monthly payment to a single entity." Doc. #2 at ¶ 23. Griffin secured a loan and executed a promissory note and deed of trust, using her home as collateral. Id. at ¶ 25; Doc. #32-1. The deed of trust identifies Corestar Financial Group, LLC, as "Lender, " and Mortgage Electronic Systems, Inc., as the "nominee for Lender and Lender's successors and assigns."[1] Doc. #32-1 at ¶¶ (C), (E).

"HSBC" serviced the loan.[2] Doc. #2 at ¶¶ 25-26. Griffin claims that "HSBC employed a number of different service providers to perform or exercise various parts of the lender's duties, obligations and rights as well as its duties, obligations and rights as the loan servicer." Id. at ¶ 26. "HSBC" purportedly hired American Security and the John Doe insurance companies to handle all of its obligations related to insurance. Id. at ¶ 26(a)-(c). These obligations included force placing flood and hazard insurance upon the occurrence of certain events to protect the collateral property against catastrophic loss. Id. at ¶¶ 26(a), 52-54, 74.

In April of 2013, a fire destroyed the collateral property-Griffin's home. Id. at ¶ 68. A few months later, Griffin discovered that "HSBC" had farmed out many of its obligations to other entities. Id. at ¶ 25. She also learned that her home was not insured despite charges for force placed hazard insurance appearing on both the March and April 2013 loan account statements. Id. at ¶ 74. These revelations prompted a series of communications between Griffin, "HSBC, " and many of the other defendants regarding Griffin's loan payments and the defendants' handling of those funds. Id. at ¶¶ 72-109. After receiving many delayed and inadequate responses to her queries, Griffin filed this suit in the Circuit Court of Washington County, Mississippi. Defendant HSBC Finance Corporation removed the action to this federal court, [3] with the consent or joinder of the other defendants.

Griffin alleges ten causes of action: (1) breach of contract; (2) breach of escrow fiduciary duties; (3) fraud or misrepresentation; (4) violation of the Real Estate Settlement Procedures Act;

(5) violation of Mississippi consumer protection statutes; (6) civil conspiracy regarding insurance; (7) breach of the implied covenant of good faith and fair dealing; (8) accounting; (9) declaratory judgment; and (10) unjust enrichment.

II

Assurant's Motion to Dismiss

On October 8, 2014, Assurant filed a motion to dismiss challenging this Court's subject matter jurisdiction and this Court's personal jurisdiction over it, and alleging that Griffin's complaint "fails to state a claim against Assurant under federal pleading standards." Doc. #30 at 2. The next day, in compliance with the Court's local rules, Magistrate Judge Jane Virden stayed the attorney conference and disclosure requirements, and all discovery not related to the jurisdictional issue pending resolution of Assurant's motion. Doc. #35. On December 19, 2014, before Assurant filed an answer or motion for summary judgment, Assurant's counsel, on behalf of Assurant and Griffin, filed a joint stipulation of dismissal with prejudice purporting to dismiss Assurant pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). Doc. #50.

The joint stipulation does not constitute a stipulation of dismissal under Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure because it is not "signed by all parties who have appeared."[4] But, it does substantially satisfy the requirements for dismissal under Rule 41(a)(1)(A)(i), which "allows a plaintiff to voluntarily dismiss an action without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment." See In re Amerijet Int'l, Inc., 785 F.3d 967, 973 (5th Cir. 2015) (internal quotation marks and citation omitted). The joint stipulation is signed by Griffin's counsel, was filed before Assurant filed either an answer or motion for summary judgment, and expresses Griffin's clear intent to dismiss Assurant with prejudice.[5] That it is titled, "Joint Stipulation of Dismissal of Defendant Assurant, Inc. with Prejudice" rather than "Notice of Dismissal" is not controlling. See Oswalt v. Scripto, Inc., 616 F.2d 191, 195 (5th Cir. 1980) (explaining that in interpreting Rule 41, this Circuit does not "countenance a mechanistic view of the Federal Rules of Civil Procedure [that] exalt[s] form over substance"); see also Williams v. Ezell, 531 F.2d 1261, 1263 (5th Cir. 1976) ("That it was styled a Motion for Dismissal' rather than a Notice of Dismissal' is, in our opinion, a distinction without a difference.").

Because the substance of the joint stipulation satisfies Rule 41(a)(1)(A)(i), Assurant's dismissal with prejudice was effectuated. Florists' Mut. Ins. Co. ex rel. Plains Growers v. Ickes-Braun Glasshouses, Inc., 474 F.2d 250, 255 (5th Cir. 1973) ("[R]eading the rules governing dismissal by notice and dismissal by motion together, we conclude that it was intended by the rule-makers to permit dismissal against such of the defendants as have not served an answer or motion for summary judgment, despite the fact that the case might remain pending against other defendants."); Kay v. Online Vacation Ctr. Holdings Corp., 539 F.Supp.2d 1372, 1373 n.1 (S.D. Fla. ...


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