United States District Court, M.D. Tennessee, Nashville Division
WILLIAM E. KANTZ, JR., Plaintiff,
RUBIN LUBLIN, PLLC, et al., Defendants.
WILLIAM J. HAYNES, Jr., Senior District Judge.
Plaintiff, William E. Kantz, Jr., a Tennessee citizen, originally filed this action in the Circuit Court for Davidson County, Tennessee, against Defendants, Rubin Lublin, PLLC, a Tennessee professional limited liability company, Rubin Lublin, LLC, a Georgia limited liability company, and Federal Home Loan Mortgage Corporation ("FHLMC" or "Freddie Mac"). Plaintiff asserts claims for fraud, breach of contract, violation of the Tennessee Consumer Protection Act ("TCPA") Tenn. Code Ann. § 47-18-104(b)(39), and violation of the Fair Debt Collection Practices Act 15 U.S.C. § 1692 against Defendants Rubin Lublin TN, PLLC and/or Rubin Lublin LLC (collectively, "Rubin Lublin").
Plaintiff seeks declaratory relief that the Court determine that Defendant Rubin Lublin, acting as substitute trustee, failed to execute its duties under the deed of trust properly in conducting a foreclosure sale of Plaintiff's house, namely that no one appeared at the Davidson County Courthouse to cry the sale, and therefore the trustee's deed conveying the property to FHLMC was void. Plaintiff does not assert any substantive claim against Defendant FHLMC, but seeks relief against Defendant FHLMC to set aside the trustee's deed. Defendants removed this action to this Court under 28 U.S.C. § 1331, the federal question statute.
This action arises out of Plaintiff's allegations that on February 20, 2014, at the Davidson County courthouse, no one on behalf of Defendant Rubin Lublin appeared at the foreclosure sale of Plaintiff's property to cry the sale of the property and that a sale of the property did not occur. On March 24, 2014, Plaintiff filed his action in the Circuit Court for Davidson County, Tennessee, that was later removed to this Court on May 6, 2014. Plaintiff's motion to amend his complaint was granted on May 12, 2014. (Docket Entry No. 13). On May 30, 2014, Plaintiff filed a second amended complaint. (Docket Entry No. 23). Defendant Rubin Lublin filed a motion to dismiss for failure to state a claim (Docket Entry No. 29).
On June 27, 2014, the Court conducted a case management conference. The Court stayed all proceedings for sixty (60) days and gave Plaintiff 30 days to arrange the repurchase of the property. The Court gave Defendant Rubin Lublin 30 days within which to arrange notice and foreclose on the property if Plaintiff failed to repurchase the property. Thereafter, the parties were to brief whether the claims were mooted. On August 26, 2014, Defendant Rubin Lublin filed notice that it held a trustee's sale, foreclosing on Plaintiff's property. (Docket Entry No. 43, Report of Trustee's Sale). On September 2, 2014, the Court granted Defendant Rubin Lublin's motion to stay discovery (Docket Entry No. 41) pending briefing on the mootness of claims and a ruling on Defendant Rubin Lublin's motion to dismiss (Docket Entry No. 29). See Docket Entry No. 46.
Before the Court is Defendant Rubin Lublin's motions to dismiss for failure to state a claim (Docket Entry No. 29); Defendant Rubin Lublin's motions to dismiss as moot (Docket Entry No. 49); Defendant FHLMC's motion to dismiss (Docket Entry No. 47); Plaintiff's motion for leave to file third amended complaint (Docket Entry No. 61); Plaintiff's motion for clarification of response dates and/or request for briefing schedule (Docket Entry No. 67); Plaintiff's motion to accept memorandum of law in support of response to Defendant Rubin Lublin's motion to dismiss (Docket Entry No. 68); and Plaintiff's motion for partial summary judgment (Docket Entry No. 72).
In its motion to dismiss (Docket Entry No. 47), Defendant FHLMC contends that, as a result of the subsequent August 26, 2014 foreclosure sale, Plaintiff's claims against this Defendant are moot. Specifically, Defendant FHLMC contends that because the only relief sought against it is to set aside the initial trustee's deed arising from the February 20, 2014 foreclosure sale the recording of a new trustee's deed, following the second foreclosure sale on August 26, 2014, renders any claims against FHLMC as to the first foreclosure sale moot.
Plaintiff filed a response in opposition (Docket Entry No. 62) contending that he has filed a motion for leave to file a third amended complaint (Docket Entry No. 61) that asserts additional claims against FHLMC. Specifically, Plaintiff contends that the claims asserted against Defendant FHLMC in the third amended complaint, including violation of the Real Estate Settlement Practices Act, Fair Debt Collection Practices Act, Truth in Lending Act, and Tennessee Consumer Protection Act, relate to FHLMC's conduct following the initial February 20, 2014 foreclosure sale and are not rendered moot by the second foreclosure sale.
In its motion to dismiss as moot (Docket Entry No. 49), Defendant Rubin Lublin contends that because Plaintiff was given an exclusive opportunity to buy the property following the Court's June 27, 2014 case management conference and a new sale was completed on August 26, 2014 by the same purchaser and at the same sales price as the February 2014 sale, Plaintiff's claims are therefore moot. Defendant Rubin Lublin argues that to the extent any claims are not mooted by the subsequent property sale these claims should be dismissed for failure to state a claim based upon the reasons stated in its prior motion to dismiss (Docket Entry No. 29).
In that motion, Defendant Rubin Lublin contends that: (1) Rubin Lublin, LLC should be dismissed as the appointment of substitute trustee and substitute trustee's deed reflect that the only trustee of the deed of trust was Rubin Lublin TN, PLLC; (2) the substitute trustee's deed is prima facie evidence that the sale took place and that notice was sent; (3) plaintiff has failed to properly plead a claim for fraud under Fed.R.Civ.P. 9(b); (4) Plaintiff cannot show the existence of a contract between him and Defendant Rubin Lublin as the deed of trust contains covenants only between the "Borrower and Lender;" (5) Plaintiff fails to identify the provision of the alleged contract that was breached; (6) an allegation of no notice or improper notice is implausible as Plaintiff had some notice of the foreclosure sale; (7) Plaintiff fails to state properly a claim under the TCPA as Plaintiff fails to set forth any particular allegations of intentionally fraudulent conduct or show any detrimental reliance; and (8) that Plaintiff fails to specify which provision under the FDCPA that he believes was violated or to show that Defendant Rubin Lublin qualifies as a debt collector.
Plaintiff did not file a response to Defendant Rubin Lublin's Rule 12(b)(6) motion, but filed a response (Docket Entry No. 65) to Defendant Rubin Lublin's motion to dismiss as moot (Docket Entry No. 49), asserting that the motion should be denied as he has filed a motion for leave to file a third amended complaint (Docket Entry No. 61). Plaintiff asserts, in essence, that the third amended complaint includes violations of the Real Estate Settlement Practices Act, Fair Debt Collection Practices Act, Truth in Lending Act, and Tennessee Consumer Protection Act that relate to Defendant Rubin Lublin's conduct following the initial February 20, 2014 foreclosure sale and are not rendered moot by the second foreclosure sale.
Plaintiff filed a second response (Docket Entry No. 66) to Defendant Rubin Lublin's motion to dismiss as moot, asserting his motion for leave to file a third amended complaint as a bases for denying Defendant Rubin Lublin's motion to dismiss. Plaintiff also asserts that he could have purchased the property on February 20, 2014, had the foreclosure sale actually been conducted; that Defendant Rubin Lublin and Bank of America, N.A. ("BANA") intentionally inflated the price following the June 27, 2104 case management conference to prevent him from repurchasing his property; and that Plaintiff is not required to have any damages to seek a declaratory judgment that an act or practice violates the TCPA.
In his motion for partial summary judgment (Docket Entry No. 72), Plaintiff contends that Defendant Rubin Lublin violated Tenn. Code Ann. §47-18-104(b)(39) of the TCPA by falsely representing that it or its agent conducted the foreclosure on Plaintiff's house when it knew that the foreclosure was not actually conducted as advertised. In response (Docket Entry No. 79), Defendant Rubin Lublin contends that Plaintiff's motion is unsupported by evidence as Plaintiff's "affidavit" is neither signed nor notarized and fails to set forth any facts that can support a claim that Defendant Rubin Lublin violated the TCPA; that the TCPA does not apply in this action; Plaintiff fails to prove the elements of a TCPA claim; and that Plaintiff's motion is premature as no answers have been filed by any Defendant, Defendants Rubin Lublin and FHLMC have pending dispositive motions, and the Court has stayed discovery until these motions are decided.
A. PLAINTIFF'S MOTIONS FOR EXTENSION OF TIME AND FOR CLARIFICATION
The Court granted Plaintiff three extensions of time to file a response to Defendants' motions to dismiss, giving Plaintiff from October 3, 2014 to October 27, 2014 to file a response. (Docket Entry Nos. 52, 55 and 59). After granting the third extension, the Court warned Plaintiff it was the final extension. (Docket Entry No. 59). On October 27, 2014, Plaintiff filed a response (Docket Entry No. 65) to Defendant Rubin Lublin's motion to dismiss as moot (Docket Entry No. 49). On October 28, 2014, one day past the deadline extension, Plaintiff filed his memorandum in support of his response (Docket Entry No. 66) to Defendant Rubin Lublin's motion to dismiss as moot.
On October 29, 2014, Plaintiff filed a motion to accept his late filed memorandum of law in support of his response to Defendant Rubin Lublin's motion to dismiss (Docket Entry No. 68). In response (Docket Entry No. 69), Defendant Rubin Lublin asserts that Plaintiff fails to show excusable neglect to obtain an extension of time to respond to the rule 12(b)(1) motion as Plaintiff has offered no reason why his response was not timely filed and the record reflects that Plaintiff had time to draft and file a proposed third amended complaint.
The Court notes that Defendant Rubin Lublin's response is well taken, but in the Court's discretion, will grant Plaintiff's motion to accept memorandum of law in support of response to Defendant Rubin Lublin's motion to dismiss (Docket Entry No. 68) as the memorandum mainly asserts the allegations in his proposed third amended complaint.
Also, on October 29, 2014, in reference to Defendant Rubin Lublin's motion to dismiss for failure to state a claim (Docket Entry No. 29), Plaintiff filed a motion for clarification of response dates and/or request for briefing schedule (Docket Entry No. 67). Plaintiff "request[s] that the Court set a deadline for the response, if required, " stating that Plaintiff believed that Defendant Rubin Lublin's motion to dismiss as moot (Docket Entry No. 49) replaced the prior motion to dismiss (Docket Entry No. 29). (Docket Entry No. 67 at 1) (emphasis in original). Plaintiff also seeks that the discovery stay be lifted. In response (Docket Entry No. 69), Defendant Rubin Lublin asserts, among other things, that it made clear in its 12(b)(1) motion that any claims not deemed moot were still due to be dismissed based on the arguments in the pending 12(b)(6) motion. (Docket Entry No. 69 at 9, citing Docket Entry No. 50 at 4).
Defendant Rubin Lublin filed its Rule 12(b)(6) motion to dismiss on June 13, 2014, giving Plaintiff, pursuant to Local Rule 7.01(b) and Fed.R.Civ.P. 6(d), until June 30, 2014 to file a response. The action, however, was stayed on June 27, 2014 until the foreclosure sale on August 26, 2014, giving Plaintiff until August 29, 2014 to respond. Plaintiff contends that he did not file a response to the Rule 12(b)(6) motion because he accepted Defendant Rubin Lublin's Rule 12(b)(1) motion as a replacement for the Rule 12(b)(6) motion and that "[t]his idea was further strengthened by Rubin Lublin's overlapping arguments." (Docket Entry No. 67 at 1). Yet, Defendant Rubin Lublin's Rule 12(b)(1) motion was filed on September 11, 2014, thirteen days after Plaintiff's response was due. Further, in its Rule 12(b)(1) motion, Defendant Rubin Lublin specifically states that "[i]n the event that this Court finds that any claims have not been mooted, the Rubin Defendants assert that the claims are still due to be dismissed for failure to state a claim upon which relief can be granted, and have a pending motion to that effect." (Docket Entry No. 50 at 4). Defendant Rubin Lublin also notes that Plaintiff's response deadline "has long passed and the motion is now deemed unopposed pursuant to LR 7.01(b)." Id. at 4 n.1. Despite Defendant Rubin Lublin's assertions, Plaintiff waited until October 29, 2014 to file its motion for clarification.
Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure provides that "[w]hen an act may or must be done within a specified time, the court may, for good cause, extend the time: on motion made after the time has expired if the party failed to act because of excusable neglect." Factors to be considered when determining the existence of excusable neglect are: "(1) the danger of prejudice to the nonmoving party, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, (4) whether the delay was within the reasonable control of the moving party, and (5) whether the late-filing party acted in good faith." Nafziger v. McDermott Intern., Inc., 467 F.3d 514, 522 (6th Cir. 2006) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)).
The Court concludes that Plaintiff has failed to show any basis for excusable neglect as Plaintiff's reasons are contrary to the factual record and Plaintiff was given three extensions to file responses. Further, Plaintiff's request that the discovery stay be lifted should be denied as the Court stayed discovery until the motions to dismiss were decided. Accordingly, the Court concludes that Plaintiff's motion for clarification should be denied.
B. ANALYSIS OF THE MOTION TO FOR LEAVE TO AMEND COMPLAINT, 
Plaintiff moves the Court for leave to file a third amended complaint and alleges, in essence, that the February and post-stay foreclosure sales were fraudulent and failed to comply with any of the terms and conditions of the underlying note and deed of trust. Plaintiff includes BANA and Blank Rome, LLP as Defendants. Plaintiff asserts the following claims: (1) a declaratory judgment that both the February and August foreclosure sales are void and for a declaration that Defendant Rubin Lublin committed fraud, (Docket Entry No. 61-1 at ¶¶ 85-92); (2) "fraud in the February 20, 2014 foreclosure sale, " id. at ¶¶ 93-98; (3) "fraud in the August 26, 2014 foreclosure sale, " id. at ¶¶ 99-103; (4) breach of contract, id. at ¶¶ 104-110; (5) "return of property, " id. at ¶¶ 111-115; (6) violation of the Tennessee Consumer Protection Act, id. at ¶¶ 116-125; (7) violations of the Fair Debt Collection Practices Act ("FDCPA"), id. at ¶¶ 126-151; (8) violations of RESPA and the Truth in Lending Act ("TILA"), id. at ¶¶ 152-157; and (9) conspiracy, id. at ¶¶ 158-168.
Plaintiff originally filed this action in state court and subsequently filed an amended complaint. (Docket Entry No. 1-1). After removal of the action to federal court, this Court granted Plaintiff leave to file an amended complaint and a second amended complaint. (Docket Entry Nos. 21 and 22). Plaintiff seeks to file a third amended complaint, comprised of 30 pages and 168 paragraphs, adding two parties, 21 pages, 122 paragraphs and three counts to the previously filed second amended complaint, comprising of 9 pages and 46 paragraphs. In sum, Defendants contend that Plaintiff's proposed third amended complaint is a futile "shotgun" complaint consisting of disjointed speculative claims based upon false premises that fails to specify which count is directed at which defendant; that any claims regarding the February foreclosure sale were rendered moot by the subsequent August foreclosure sale; that the complaint alleges contradictory and demonstrably false facts; and that the complaint fails to allege sufficient factual matter to state a claim to relief that is plausible on its face.
"A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed.R.Civ.P. 15(a)(1). "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a)(2). Leave to amend a complaint should be freely given "when justice so requires, " id.; see Riverview Health Institute LLC v. Medical Mutual of Ohio, 601 F.3d 505, 520 (6th Cir. 2010), and should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility. Saint Torrance v. Firstar, 529 F.Supp.2d 836, 845 (S.D. Ohio 2007) (citing Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994)); see Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994) ("Several elements may be considered in determining whether to permit an amendment. Undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment are all factors which may affect the decision.'") (citations omitted). "A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.'" Riverview, 601 F.3d at 512 (citations omitted).
Additionally, Rule 9(b) of the Federal Rules of Civil procedure states that "a party must state with particularity the circumstances constituting fraud[.]" See Advocacy Org. for Patients and Providers v. Auto Club Ins. Ass'n, 176 F.3d 315, 322 (6th Cir. 1999) ("[A]llegations of fraudulent misrepresentation[s] must be made with sufficient particularity and with a sufficient factual basis to support an inference that they were knowingly made.'") (citation omitted).
[A] complaint is sufficient under Rule 9(b) if it alleges the time, place, and content of the alleged misrepresentation on which [the deceived party] relied; the fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud, and enables defendants to prepare an informed pleading responsive to the specific allegations of fraud.
United States ex rel. Poteet v. Medtronic, Inc., 552 F.3d 503, 518 (6th Cir. 2009) (internal quotations omitted). "A court need not accept claims that consist of no more than mere assertions and unsupported or unsupportable conclusions." Sanderson v. HCA-The Healthcare Co., 447 F.3d 873, 876 (6th Cir. 2006) (citing Kottmyer v. Maas, 436 F.3d 684, 688 (6th Cir. 2006)). Also, "[c]onclusory statements of reliance are not sufficient to explain with particularity how [a plaintiff] detrimentally relied on the alleged fraud." Evans v. Pearson Enters., 434 F.3d 839, 852-53 (6th Cir.2006) (citing Smith v. Mitlof, 198 F.Supp.2d 492, 504-05 (S.D.N.Y. 2002)) (holding that the complaint's allegation that the plaintiffs reasonably relied on the fraudulent representations was insufficient to meet the heightened pleading requirements of Rule 9(b)).
"Article III of the Constitution confines the power of the federal courts to adjudication of cases' or controversies.' The mootness doctrine, a subset of the Article III justiciability requirements, demands a live case-or-controversy when a federal court decides a case." Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 644 (6th Cir. 1997) (citations omitted). "Mootness results when events occur during the pendency of the litigation which render the court unable to grant the requested relief." Berger v. Cuyahoga Cnty. Bar Ass'n, 983 F.2d 718, 724 (6th Cir.1993).
Defendant Rubin Lublin and Defendant FHLMC have both filed motions to dismiss this action as moot under Fed.R.Civ.P. 12(b)(1). Defendant Rubin Lublin also has filed a motion to dismiss for failure to state a claim under Rule 12(b)(6). The Court is "bound to consider the 12(b)(1) motion first, since the Rule 12(b)(6) challenge becomes moot if this court lacks subject matter jurisdiction." Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990).
Fed. R. Civ. P. 12(b)(1) provides for dismissal of a claim for lack of subject matter jurisdiction that may consist of either a "facial attack" or a "factual attack." O'Bryan v. Holy See, 556 F.3d 361, 375 (6th Cir. 2009).
"A facial attack on the subject-matter jurisdiction alleged in the complaint questions merely the sufficiency of the pleading." And, "[w]hen reviewing a facial attack, a district court takes the allegations in the complaint as true.... If those allegations establish federal claims, jurisdiction exists." However, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss."
Id. at 375-76 (citations omitted). "A factual attack, on the other hand, is not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject matter jurisdiction." United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). On a factual attack, "no presumptive truthfulness applies to the factual allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id . (citation omitted). "[A] trial court has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts." Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). The plaintiff bears the burden of proof that jurisdiction exists under 12(b)(1). RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996). Here, the Court construes the Defendants' motions as a factual attack.
Upon a motion to dismiss under Fed.R.Civ.P. 12(b)(6), "a civil complaint only survives a motion to dismiss if it contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 629 (6th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (citation omitted). The Court must "construe the complaint in the light most favorable to the plaintiff, accept all its allegations as true, and draw all reasonable inferences in favor of the plaintiff.'" In re Travel Agent Com'n Antitrust Litig., 583 F.3d 896, 903 (6th Cir. 2009) (citation omitted). However, the Court "need not accept as true legal conclusions or unwarranted factual inferences... and conclusory allegations or legal conclusions masquerading as factual allegations will not suffice.'" Id . (citations and quotation marks omitted).
In Ashcroft v. Iqbal, the Supreme Court explained the requirements for sustaining a motion to dismiss under Fed. Rule Civ. Proc. 12(b)(6):
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." As the Court held in Twombly, 550 U.S. 544 (2007), the pleading standard Rule 8 announces does not require "detailed factual allegations, " but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Id. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." 550 U.S. at 555. Nor does a complaint suffice if it tenders "makes assertion[s]" devoid of "further factual enhancement." Id. at 557.
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id., at 570. A claim has facial plausibility 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 556. The plausibility standard is not akin to a "probability requirement, " but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief.'" Id., at 557 (brackets omitted).
Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. at 555.... Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 556. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d. Cir. 2007). But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but it has not "show[n]", "that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2).
In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief.
556 U.S. at 677-79.
As the Sixth Circuit stated, "[a] motion under Rule 12(b)(6) is directed solely to a complaint itself...." Sims v. Mercy Hosp., 451 F.2d 171, 173 (6th Cir. 1971); see also Passa v. City of Columbus, 123 Fed.Appx. 694, 698 (6th Cir. Ohio 2005). Yet, in evaluating a plaintiff's complaint, under Fed. Rule Civ. Proc. 10(c), any matters attached to the pleadings are considered part of the pleadings as are documents that a defendant attaches to a motion to dismiss that are referred to in the complaint and "central" to the claim. Weiner v. Klais and Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997); Rondigo, L.L.C. v. Township of Richmond, 641 F.3d 673, 680-81 (6th Cir. 2011) ("[A] court may consider exhibits attached [to the complaint], public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the complaint and are central to the claims contained therein, ' without converting the motion to one for summary judgment.") (quoting Bassett v. National Collegiate Athletic Ass', 528 F.3d 426, 430 (6th Cir. 2008)).
Consistent with the Court's instructions, Defendants conducted a foreclosure sale of Plaintiff's property on August 26, 2014, and thereafter filed briefs on the issue of mootness. Plaintiff's proposed third amended complaint reiterates many of the same claims and allegations in the second amended complaint, challenging the February foreclosure sale and also seeks to invalidate the August 26 foreclosure sale.
Based upon a review of Plaintiff's proposed third amended complaint, the Court concludes that Plaintiff's motion for leave to amend should be denied as futile. As discussed infrra, the August foreclosure sale cured any alleged defects from the February foreclosure sale and moots many of Plaintiff's claims. Also, Plaintiff's complaint is confusingly pled, contains false and contradictory factual allegations, and fails to allege sufficient factual matter that is plausible on its face.
In his proposed amended complaint, Plaintiff alleges:
51. Although Bank of America only paid $398, 126.15 to purchase the property at the February 20, 2014 foreclosure sale, on July 11, 2014, FHLMC's counsel demanded Mr. Kantz pay "the entire indebtedness" (over $460, 000) to re-purchase his own home. Mr. Humbracht's letter states:
... if your client wishes to purchase the property, he may be able to do so by paying the entire indebtedness in full. (Exhibit H) (underline added);
52. By demanding over $60, 000.00 more than Bank of America paid to purchase the property at the faux-February 20, 2014 foreclosure sale, FHLMC was attempting to garner an illegal sale profit for itself and/or Bank of America. (Admittedly, after Mr. Kantz's 30-day opportunity to purchase his property expired, FHLMC lowed its demand to only $433, 594.13);
53. By demanding over $60, 000.00 more than Bank of America paid to purchase the property at the faux-February 20, 2014 foreclosure sale, FHLMC was violating the Court's instructions as reflected in the June 27, 2014 Minute Entry;
54. Mr. Kantz was financially able to purchase the Property on February 20, 2014 for $398, 126.15. However, by July 2014, his fortunes had changed and he was unable to pay the $460, 000 demanded by FHLMC;
(Docket Entry No. 61-1 at ¶¶ 51-54) (emphasis in original).
In Plaintiff's June 30, 2014 letter to Defendant FHLMC, Plaintiff offered to purchase the property for $200, 000 "for free and clear title." (Docket Entry No. 71-2). On July 11, 2014, FHLMC's counsel responded, "I forwarded your settlement proposal to my client, [FHLMC]. [FHLMC] has rejected it. However, if your client wishes to purchase the property, he may be able to do so by paying the entire indebtedness in full." (Docket Entry No. 71-1).
Based upon Plaintiff's filings, Plaintiff's indebtedness at the time of the February foreclosure sale totaled over $420, 000.00. (Docket Entry No. 61-10). The note was payable in 360 monthly installments of principal and interest, accruing interest at 5.875% per annum. Id .; Docket Entry No. 61-22 at 10-13. Plaintiff made his last loan payment in September 2012, and the loan has been in default since September 2012. At that time of default, the outstanding principal balance was $365, 736.09. Interest accrued on that balance from September 2012 thru February 2014 at the rate of 5.875%. Thus, the principal amount due on the loan was $365, 736.09 and past due interest of $32, 230.49 had accrued. The total amount of principal and interest due on the note was $397, 966.58. The payment history reflects that during default, BANA made payments for property taxes and insurance such that prior to February 2014, there was a negative $19, 082.37 balance in the escrow account. The total debt owed at the time of the February foreclosure was $417, 048.95. Further, the mortgage and note provide that Plaintiff is liable for all costs, including reasonable attorneys' fees. (Docket Entry No. 61-22 at 11). Plaintiff does not allege that he does not owe this debt. Nor does he allege that he has made any payments since September 2012. Between February 2014 and August, interest continued to accrue on the note in the amount of $1, 790.58 per month. Thus, Defendant FHLMC did not demand Plaintiff pay an amount "over $60, 000 more" than the bid price.
Further, the deed of trust provides the borrower with the right to cure his default prior to foreclosure if the borrower (a) pays the lender all sums which would be due under the security instrument and the note as if no acceleration had not occurred; (b) cure any default of any other covenant or agreement; (c) pay all expenses incurred in enforcing the security instrument, including, but not limited to, reasonable attorneys' fees and other fees incurred for the purposes of protecting the lender's interest in the property; and (d) takes such action as the lender may reasonably require to assure that the lender's interest in the property and rights under the note and the borrower's obligation to pay continue unchanged. (Docket Entry No. 61-2 at 12, ¶ 19).
Based upon the cited exhibits, the Court concludes that Plaintiff's above allegations are factually implausible as the attached exhibits do not support these allegations. See HMS Prop. Mgmt. Group, Inc. v. Miller, 69 F.3d 537 (6th Cir. 1995) ("[A] court may disregard allegations contradicted by facts established in exhibits attached to the pleading.").
Further, Plaintiff argues contradictory factual allegations that the February foreclosure sale was improperly conducted, yet the August foreclosure sale was improper because the foreclosure sale did take place in February. For example, Plaintiff alleges:
20. At 11:00 AM, no person appeared in behalf of Bank of America, Rubin Lublin TN, PLLC and/or Rubin Lublin LLC to "cry the ...