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Crockett v. Mutual of Omaha

Court of Appeals of Tennessee, Nashville

July 30, 2015

ELIZABETH E. CROCKETT
v.
MUTUAL OF OMAHA, ET AL.

Session January 21, 2015

Appeal from the Circuit Court for Davidson County No. 12C889; 12C986 Joseph P. Binkley, Jr., Judge.

Elizabeth E. Crockett, Nashville, Tennessee, appellant, pro se. Courtney H. Gilmer and Jaime L. DeRensis, Nashville, Tennessee, for appellee, Mutual of Omaha Bank.

Lauren Paxton Roberts, Nashville, Tennessee, for appellees HSBC Bank, N.A., USA and Mortgage Electronic Registration Systems, Inc.

Edward D. Russell, Brentwood, Tennessee, for appellee M&T Bank.

W. Neal McBrayer, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Andy D. Bennett, J., joined.

OPINION

W. NEAL McBRAYER, JUDGE

I. Factual and Procedural Background

On February 29, 2012, Elizabeth Crockett filed, pro se, a complaint against Mutual of Omaha Bank ("Mutual of Omaha"), M&T Bank Corp. ("M&T"), HSBC Bank ("HSBC"), and Mortgage Electronic Registration Systems ("MERS") (collectively, "Appellees") in Davidson County Circuit Court. The complaint alleged that Appellees attempted to foreclose on certain property in which Ms. Crockett claims an interest. Ms. Crockett also alleged that Appellees failed to produce an "original, unaltered, genuine wet ink signature contract" and failed to respond to her "notices and demands" requesting information about her account. Ms. Crockett demanded two forms of relief: (1) a temporary restraining order and injunction preventing Appellees from foreclosing on unspecified property; and (2) a declaratory judgment that Appellees had a duty to respond to her requests for information.

Despite its length, the complaint provides little factual detail. The complaint does not specify any particular real property, loan or deed of trust, or include any documents relating to a loan, deed of trust, or foreclosure. However, Ms. Crockett filed a "Petition to Perpetuate Discovery, " to which she attached several exhibits, including a promissory note, a deed of trust, allonges, and a foreclosure notice. From those exhibits, we can determine that Ms. Crockett received a loan from the Bank of Arizona on December 12, 2003, for the purchase of a property on Kenner Avenue in Nashville, Tennessee. The loan was transferred to HSBC Bank USA as Trustee. Ms. Crockett received a foreclosure notice regarding the Kenner Avenue property in December 2011. Ms. Crockett also attached as an exhibit her nine-page letter to M&T and Mutual of Omaha requesting information related to her account under the Real Estate Settlement Procedures Act ("RESPA"). 12 U.S.C.A. §§ 2601-2617 (2012); see also Regulation X, 12 C.F.R. § 1024 (2015); Regulation Z, 12 C.F.R. § 226 (2015).

Appellees moved to dismiss Ms. Crockett's complaint, among other grounds, for failure to state a claim upon which relief can be granted. After a hearing, the trial court granted Ms. Crockett an additional sixty days to file and serve an amended complaint. The court also continued the hearing on the motions to dismiss.

Ms. Crockett filed an amended complaint, which was similar to her first complaint. The amended complaint added a request for a declaration that Appellees were required to produce a "bona fide claim." Appellees again moved to dismiss Ms. Crockett's complaint for failure to state a claim. After a hearing, the trial court allowed Ms. Crockett another opportunity to file an amended complaint.

In her second amended complaint, Ms. Crockett alleged that Appellees "colluded to initiate a fraudulent foreclosure action against" her; "failed to produce a bona fide claim"; and failed to respond to Ms. Crockett's requests for information regarding their claims against her. Further, Ms. Crockett alleged that "unless a TRO [temporary restraining order] and preliminary injunction is [sic] granted, [Ms. Crockett] will suffer irreparable injury, damage and loss of [her] real property." Later in the complaint, Ms. Crockett alleged that it was in the public interest to grant her the relief sought because, without relief, she would "continue to be harmed." However, she did not specify what harm would ensue. Appellees renewed their motions to dismiss for failure to state a claim.

After a hearing on the motions, the trial court entered an order of dismissal. In its order of dismissal, the court noted the lack of factual allegations relating to Appellees and their ...


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