United States District Court, N.D. Mississippi, Aberdeen Division
PATRICIA PARRISH as next friend and with power of attorney for NORMAN FROSSARD, JR. PLAINTIFF
WELLS FARGO, N.A., and DEAN MORRIS, LLC DEFENDANTS
SHARION AYCOCK UNITED STATES DISTRICT JUDGE.
Plaintiffs in this case are Patricia Parrish and Norman
Frossard. In their Complaint , the Plaintiffs allege that
Frossard has Alzheimer’s and requires constant care and
supervision, and that Parrish, Frossard’s daughter, is
his primary caregiver and has power of attorney over his
affairs. The Plaintiffs assert a variety of claims based in
federal and state law arising from a foreclosure on
Frossard’s home conducted by Wells Fargo, N.A. and Dean
Morris, LLC. Now before the Court is Wells Fargo’s
Motion to Dismiss  all of the Plaintiffs’ claims.
Dean Morris, LLC joined in the Motion, see Joinder
, and the issues are fully briefed and ripe for review.
and Procedural Background
of 2011, Frossard purchased a home on Mimosa Drive in
Starkville, Mississippi. Frossard purchased the home through
a loan secured from Edward Jones Mortgage, LLC backed by the
Department of Veterans Affairs. Frossard is a veteran. Edward
Jones Mortgage assigned the Deed of Trust to Wells Fargo
Bank, N.A. According to the Plaintiffs, in October of 2017
Parrish “became aware” that no payments had been
made on the loan since May of 2017. Parrish alleges that she
contacted Wells Fargo on October 17, 2017 for information
about how to bring the loan current. According to Parrish,
Wells Fargo advised her to complete an application for loan
modification and reinstatement. Parrish alleges that she
completed the application, offered to bring the loan current,
and provided proof of funds to Wells Fargo. Parrish further
alleges that she contacted Wells Fargo on November 1, 2017
and was informed that a public auction of the home had
already been held, and that as a result of the sale the
property reverted back to Wells Fargo.According to
Parrish, no auction was conducted. On November 6, 2017, Wells
Fargo conveyed the property to Veterans Affairs. On February
1, 2018, Veterans Affairs filed an eviction complaint on the
property in Oktibbeha County Justice Court, and a Judgment of
Eviction was entered on April 11, 2018.
Plaintiffs’ Complaint  does not assert discrete
claims but instead contains mixed allegations of fact and
law. Based on the Court’s reading of the
Plaintiffs’ Complaint , including the Chancery Court
Complaint [1-1] incorporated by reference, it appears that
the Plaintiffs are asserting federal claims under the Real
Estate Settlement Procedures Act, the Fair Debt Collection
Practices Act, the Fair Credit Reporting Act, and a claim for
wrongful foreclosure under Mississippi law. The Plaintiffs
ultimately request that the Court set aside the substitute
trustee’s deed and return title of the home to
Wells Fargo filed a Motion to Dismiss  requesting that
the Court dismiss all of the Plaintiffs’ claims with
prejudice for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). Defendant Dean Morris, LLC joined
in the Motion. See Joinder .
deciding the Defendants’ Motion to Dismiss, the Court
must read the Complaint in the light most favorable to the
Plaintiff and all well-pled, material allegations in the
Complaint must be taken as true. Estelle v. Gamble,
429 U.S. 97, 112, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). It is
the purpose of a Rule 12(b)(6) motion to test the formal
sufficiency of the statement for relief. Murray v. Amoco
Oil Co., 539 F.2d 1385 (5th Cir. 1976). When deciding a
Rule 12(b)(6) motion to dismiss, the Court is limited to the
allegations set forth in the complaint and any documents
attached to the complaint. Walker v. Webco Indus.,
Inc., 562 Fed.Appx. 215, 216–17 (5th Cir. 2014)
(per curiam) (citing Kennedy v. Chase Manhattan
Bank USA, NA, 369 F.3d 833, 839 (5th Cir. 2004)).
legally sufficient complaint must establish more than a
“sheer possibility” that the plaintiff’s
claim is true. Ashcroft v. Iqbal, 556 U.S. 662,
678-79, 129 S.Ct. 937, 173 L.Ed.2d 868 (2009). It need not
contain detailed factual allegations, but it must go beyond
labels, legal conclusions, or formulaic recitations of the
elements of a cause of action. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007). In other words, a “[plaintiff’s]
complaint therefore must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Id. at 570, 127 S.Ct.
1955. If there are insufficient factual allegations to raise
a right to relief above the speculative level, the claim must
be dismissed. Id. at 555, 127 S.Ct. 1955.
“[C]onclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to
prevent a motion to dismiss.”
Fernandez–Montes v. Allied Pilots Assn., 987
F.2d 278, 284 (5th Cir. 1993). “Threadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Turner v.
Lt. Driver, 848 F.3d 678, 685 (5th Cir. 2017).
outset, the Court notes that the Plaintiffs’ Response
 in opposition to the instant Motion asserts various new
claims and legal and factual theories. “As a
general rule, ‘[a] claim which is not raised in the
complaint, but, rather, is raised only in response to a
motion for summary judgment is not properly before the
court.’” McLin v. Chiles, No.
3:14CV636-DPJ, 2016 WL 208322, at *2 (S.D.Miss. Jan. 15,
2016) (quoting Cutrera v. Bd. of Supervisors of La. State
Univ., 429 F.3d 108, 113 (5th Cir. 2005)). “This
rule is rooted in the need to provide adequate notice. As
stated in De Franceschi v. BAC Home Loans Servicing,
L.P., ‘[a] properly pleaded complaint must give
fair notice of what the claim is and the grounds upon which
it rests.’” Id. (citing De
Franceschi v. BAC Home Loans Servicing, L.P., 477
Fed.Appx. 200, 204 (5th Cir. 2012) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 698–99 (2009) (internal
quotations and emphasis omitted)).
district courts do not abuse their discretion when they
disregard claims or theories of liability not present in the
complaint and raised first in a motion opposing summary
judgment.” Id. This rule encompasses new
factual theories supporting previously pleaded legal
theories. See, e.g., id.; see also
Green v. JP Morgan Chase Bank, N.A., 562 Fed.Appx. 238,
240 (5th Cir. 2014) (affirming refusal to consider new
factual theory); Benavides v. EMC Mortg. Corp.,
Civil Action No. 3–12–46, 2013 WL 416195, at *4
(S.D. Tex. Jan. 31, 2013) (Costa, J.) (refusing to consider
new factual theory supporting previously pleaded legal cause
accordance with these authorities, the Court will not
recognize any new claims, and their attendant legal and
factual theories, raised for the first time in the
Plaintiffs’ Response .
noted above the Plaintiffs’ have asserted federal
claims under the Real Estate Settlement Procedures Act, the
Fair Debt Collection ...