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Parrish v. Wells Fargo, N.A.

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

September 24, 2019

PATRICIA PARRISH as next friend and with power of attorney for NORMAN FROSSARD, JR. PLAINTIFF



         The Plaintiffs in this case are Patricia Parrish and Norman Frossard. In their Complaint [1][1], 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 [12] all of the Plaintiffs’ claims. Dean Morris, LLC joined in the Motion, see Joinder [19], and the issues are fully briefed and ripe for review.

         Factual and Procedural Background

         In June 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.[2]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.

         The Plaintiffs’ Complaint [1] does not assert discrete claims but instead contains mixed allegations of fact and law. Based on the Court’s reading of the Plaintiffs’ Complaint [1], 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 Frossard.

         Defendant Wells Fargo filed a Motion to Dismiss [12] 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 [19].

         Standard of Review

         In 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)).

         A 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).

         At the outset, the Court notes that the Plaintiffs’ Response [14] in opposition to the instant Motion asserts various new claims and legal and factual theories.[3] “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)).

         “Accordingly, 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 of action).

         In 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 [14].

         I. Federal Claims

         As noted above the Plaintiffs’ have asserted federal claims under the Real Estate Settlement Procedures Act, the Fair Debt Collection ...

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