United States District Court, N.D. Mississippi, Oxford Division
JOHN C. HELMERT JR. PLAINTIFF
CENLAR FSB and NATIONSTAR MORTGAGE, LLC DEFENDANTS
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE.
cause comes before the Court on Defendant Cenlar's
Motion to Dismiss, Doc. #3, and Defendant
Nationstar's Motion to Dismiss, Doc. #7. The
Court, having reviewed the motions, the parties'
submissions, and relevant authority, is now prepared to rule.
24, 2003, Plaintiff, John C. Helmert, Jr., and his ex-wife
purchased a home in Lafayette County, Mississippi, and
financed it through a loan with First National Bank; a deed
of trust was executed that same day (“First National
Deed of Trust”).
about April 17, 2006, Plaintiff and his former wife
refinanced their loan and granted a deed of trust to Merchant
and Farmers Bank. That same day, April 17, 2006, Merchant and
Farmers Bank assigned the deed of trust (“Merchant Deed
of Trust”) to Taylor, Bean & Whitaker Mortgage
Corporation. The First National Deed of Trust was cancelled
on April 25, 2006.
3, 2013, Taylor, Bean & Whitaker assigned the Merchant
Deed of Trust to Defendant Cenlar. In the Complaint Plaintiff
states that “the person who signed the assignment on
behalf of Taylor, Bean & Whitaker did not have the
authority to act on behalf of Taylor, Bean & Whitaker, as
he was actually employed by Defendant Cenlar and not Taylor,
Bean & Whitaker.”
on February 6, 2014, Defendant Cenlar assigned the Merchant
Deed of Trust to Defendant Nationstar. This assignment was
then recorded in the land records with the Office of the
Chancery Clerk of Lafayette County, Mississippi on February
11, 2014, Defendant Nationstar appointed a substitute trustee
and began foreclosure proceedings. A substitute trustee's
deed was executed and filed on September 16, 2014. One year
later, on October 26, 2015, a corrected assignment of deed of
trust was filed to correct, and replace, the June 3, 2013
assignment of the Merchant Deed of Trust to Cenlar. That same
day Cenlar assigned the corrected Merchant Deed of Trust to
December 9, 2016, Defendant Nationstar rescinded the initial
foreclosure sale and conducted another foreclosure sale.
Plaintiff alleges that Defendant Nationstar waited over one
year to rescind the wrongful foreclosure despite
“knowing that the September 2014 foreclosure of [his]
home was wrongful and performed with no authority to do
so” because of the invalid assignment of the Merchant
Deed of Trust that occurred on June 3, 2013.
Complaint asserts that Defendant Nationstar wrongfully
foreclosed on Plaintiff's property and “improperly
issued [him] two 1099-A forms” which “caused the
Plaintiff's tax liability to be greater than the amount
of taxes actually owed” for those years. Additionally,
Plaintiff alleges that Defendant Cenlar “negligently
and/or fraudulently assigned the deed of trust, ” and
that the acts and omissions of the Defendants caused
Plaintiff to suffer financially, emotionally, and physically.
the Court can grant a motion to dismiss, a defendant must
show that the plaintiff has not met the relevant pleading
standard to state a claim. Specifically, a defendant must
show that the plaintiff's complaint fails to “state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. at 678. In
making this determination, the court must view all facts and
inferences in the light most favorable to the nonmoving
party. Armstrong v. American Home Shield Corp., 333
F.3d 566, 567 (5th Cir. 2003).
Plaintiff's claims against the Defendants ...