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Helmert v. Cenlar FSB

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

June 18, 2019

JOHN C. HELMERT JR. PLAINTIFF
v.
CENLAR FSB and NATIONSTAR MORTGAGE, LLC DEFENDANTS

          ORDER

          MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE.

         This 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.

         A. Factual Background

         On June 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”).

         On or 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.

         On June 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.”

         Nevertheless, 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 20, 2014.

         On July 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 Nationstar.

         On December 9, 2016, Defendant Nationstar rescinded the initial foreclosure sale and conducted another foreclosure sale.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.

         Plaintiff's 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.

         B. Standard

         Before 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).

         C. Discussion

         a. Plaintiff's claims against the Defendants ...


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