Smiley v. Nationstar Mortgage LLC
Smiley v. Nationstar Mortgage LLC
Opinion of the Court
ORDER
BEFORE THE COURT is Defendant Nationstar Mortgage LLC, d/b/a Champion Mortgage Company’s Motion to Dismiss the Second Amended Complaint (Dkt. 22).
FRAUDULENT INDUCEMENT
The second amended complaint represents Plaintiffs third and final attempt to allege a claim for relief. The first count, “Inducement of Fraud,” is exactly the same as the count alleged by the same title in the first amended complaint, save the deletion of the last two paragraphs. Those paragraphs alleged that Defendant Na-tionstar knew or should have known that Defendant Vertical Lend, Inc. (Vertical Lend) in 2007 had induced Elvira Smiley, long since divorced from George Smiley, to quitclaim her interest in the marital home in addition to the interest of the heirs and devisees of the estate of George Smiley, deceased, to herself.
As argued by Nationstar, the second amended complaint, assuming the allegations as true and construing them in the light most favorable to the Plaintiff, does not state a plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). Rather, it continues to represent the quintessential shotgun pleading as this Court has ruled before, by wholly incorporating all paragraphs of the complaint into the second and final count. See Weiland v. Palm Beach Cnty. Sheriffs Office, 792 F.3d 1313, 1321 (11th Cir. 2015); Davis v. Coca-Cola Bottling Co. v. Consolidated, 516 F.3d 955, 979 n. 54 (11th Cir. 2008) (collecting cases). Failure to correct such pleadings, given ample opportunity, supports dismissal. See Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005) (holding district court did not abuse its discretion in failing to permit filing of third amended complaint for “repeated failure to cure deficiencies by [previous] amendments” and quoting Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001)).
In addition to the failure to correct the obvious flaws, there are no allegations supporting fraud, much less allegations of fraud with the particularity required by Rule of Civil Procedure 9(b), committed by Nationstar. To plead fraudulent inducement and comply with Rule 9(b), the plaintiff must allege “(1) precisely what statements were made in what documents or oral representations or what omissions were made, and (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud.” Garfield v. NDC Health Corp., 466 F.3d 1255, 1262 (11th Cir. 2006) (citing Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) as quoting Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1371 (11th Cir. 1997)). The facts as alleged do
WRONGFUL FORECLOSURE
The second count alleging “illegal bank foreclosure” also fails to state a claim for relief. To the extent such a claim is cognizable in Florida, it requires the wrongful sale of property, which has not occurred here. Courts in the Middle District have held that Florida does not recognize a cause of action for wrongful foreclosure. See Raines v. GMAC Mortgage Co., No. 3:09-cv-477, 2009 WL 4715969, at *2 (M.D.Fla. Dec. 10, 2009); Perez v. IndyMac FSB, No. 6:12-cv-1146, 2012 WL 12538952, at *4 (M.D.Fla. Nov. 5, 2012). To the extent some courts mention wrongful foreclosure claims in Florida, those courts note that the real property must be sold at a foreclosure sale before any such action might be brought. See Hack v. Wachovia Bank, N.A., No. 12-cv-21436, 2012 WL 3043017, at *3 (S.D.Fla. July 25, 2012) (citing Raines); In re: Taylor, Bean & Whitaker Mortgage Corp., No. 3:09-bk-7047-JAF, 2011 WL 5245420, at *5 (Bank. M.D.Fla. Oct. 24, 2011) (citing Raines); Wells Fargo Bank, N.A. v. Averett Family P’ship, LLLP, No. 4:12-cv-140, 2012 WL 6728058, at *6 (M.D.Ga. Dec. 28, 2012) (citing Raines). Absent the ability to allege that the property has been sold, the Plaintiff cannot allege a claim for relief.
It is therefore ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss the Second Amended Complaint (Dkt. 22) is granted. This case is dismissed with prejudice as to Defendant Nationstar.
As to the Defendant Vertical Lend, Inc., Plaintiff shall show cause in writing on or before August 30, 2016, regarding the status of service of . process on Defendant Vertical Lend, Inc., failing which the case as to that Defendant- will be dismissed without prejudice and without further notice pursuant to Local Rule 3.10(a).
DONE AND ORDERED at Tampa, Florida, on August 23, 2016.
. On August 5, 2016, this Court entered an order at docket 23 directing the Plaintiff to file a response to the motion to dismiss within the time required by Local Rule 3.01(b) and warning Plaintiff's counsel that failure to do so would result in the Court ruling on the motion without the benefit of a response from the Plaintiff. Plaintiff's counsel, for some unknown reason, has failed to file a timely response to the motion to dismiss so the Court has no other alternative but to consider the merits of the motion without a response from the Plaintiff.
. Prior to the quitclaim deed executed with the assistance of Vertical Lend on October 18, 2007, Elvira Smiley quitclaimed her interest in May 2007 to her daughter Linata Smiley who was also living in the house at the time. In August 2007, Linata Smiley quitclaimed her interest to Elvira Smiley. Plaintiff alleges the property was not "probated to the siblings” as part of George Smiley's estate and, therefore, Linata could not quitclaim Plaintiff’s interest in August 2007.
Reference
- Full Case Name
- Nathaniel SMILEY v. NATIONSTAR MORTGAGE LLC, d/b/a Champion Mortgage Company, and Vertical Lend, Inc.
- Cited By
- 1 case
- Status
- Published