United States District Court, W.D. Tennessee, Western Division
ORDER GRANTING MOTION TO DISMISS AND DISMISSING AS
MOOT MOTION FOR SUMMARY JUDGMENT
CHARMIANE G. CLAXTON, UNITED STATES MAGISTRATE JUDGE
the Court is Defendant Carrington Mortgage Services,
LLC's (“Carrington”) Motion to Strike, or, in
the Alternative, Motion to Dismiss (Docket Entry
(“D.E.”) #10) (“Motion to Dismiss”)
and Carrington's Motion for Summary Judgment. The parties
have consented to the jurisdiction of the United States
Magistrate Judge. (D.E. #24). For the reasons set forth
herein, Carrington's Motion to Dismiss is GRANTED and its
Motion for Summary Judgment is DISMISSED AS MOOT.
November 22, 2016, Plaintiff Latasha Tennial filed a Petition
to Set Aside Foreclosure and for Injunctive Relief in the
Chancery Court for the Thirtieth Judicial District at
Memphis. (D.E. # 1-1). Plaintiff alleges that she purchased
property located at 4573 Fawn Hollow Cove in Memphis,
Tennessee for $90, 250.00 in October 2005. (Compl. ¶ 5).
Her mortgage was initially with Argent Mortgage Company, LLC,
but she refinanced on January 10, 2008 with Community
Mortgage Company (“CMS”). (Compl. ¶¶
5-6). CMS was sold to Countrywide Home Loans in March 2008,
who then merged services with Bank of America in June 2008.
(Compl. ¶¶ 7, 9). Plaintiff alleges that Bank of
America “improperly” foreclosed upon her home
without notification in March 2011, thereby placing her home
for sale. (Compl. ¶ 12).
April 10, 2013, Plaintiff alleges that she received a notice
from Bank of America that her loan would be transferred to
Carrington effective May 1, 2013; however, she alleges that
they never actually released the loan to Carrington according
to the Shelby County Register of Deeds. (Compl. ¶ 13).
In May 2013, Plaintiff alleges that she received a mortgage
statement from Carrington with a balance forwarded of $35,
244.06, which included late fees and default costs. (Compl.
¶ 14). Plaintiff alleges that Carrington provided
“deficient mortgage services and foreclosures
processes, ” “denied all foreclosure prevention
benefits, ” and engaged in “predatory lending
practices and accounting.” (Compl. ¶ 14). In
October 2013, Plaintiff alleges that she received a
“Keep My Tennessee Home Grant” in the amount of
$39, 844.00. (Compl. ¶ 15). Plaintiff alleges that this
amount was paid directly to Carrington on her behalf
“to reinstate the mortgage” but that it was
“never taken out of default.” (Compl.
¶¶ 15-16). Plaintiff further alleges that she
understood that a protection lien was placed on the property
for a five year Making Home Affordable Period in November
2013 and that the loan would be completely forgiven if
Plaintiff remained in the home for five years. (Compl. ¶
16). Plaintiff alleges that she did remain in the home for
five years but that, on December 12, 2013, she received a
letter from Carrington stating that she owed $911.92 for her
loan that was still in default, which included a late fee.
(Compl. ¶ 18).
alleges that she notified Carrington in January 2014 that she
was under the care of her physician, was unable to make
payments, and requested mortgage assistance for foreclosure
prevention to no avail. (Compl. ¶ 19). On October 27,
2014, Plaintiff alleges that a detainer warrant was placed on
her door. (Compl. ¶ 20). She alleges that a judgment was
entered against her even though she was under a Chapter 13
bankruptcy, that she appealed to Circuit Court, that the
matter was ordered back to General Sessions court, and that,
at the time of filing the Complaint in this case, that matter
was still pending. (Compl. ¶ 20). She alleges that
Carrington willingly reported false information to the IRS
that Plaintiff had abandoned her property in December 2014
even though it was aware that she remained in the home.
(Compl. ¶ 21). She alleges that falsified documents were
submitted to the Shelby County Register of Deeds that led to
the transfer of Plaintiff's property out of her name
while a pending appeal from General Sessions in Shelby County
was filed in Circuit Court. (Compl. ¶ 22). She states
she opened several Chapter 13 bankruptcy cases in an effort
to obtain relief but that Defendants deceived the Bankruptcy
Court by alleging that she was not interested in keeping her
property and by seeking an FED when they knew she had filed
bankruptcy. (Compl. ¶ 23).
August 2015, Plaintiff alleges she had physical damage to her
roof. Plaintiff alleges the damage was inspected and a
partial check of $1982.30 was made out to her and Carrington.
(Compl. ¶ 24). Plaintiff alleges that check was
deposited with Carrington to be held until the repairs were
completed, which was done in September. (Id.)
However, Plaintiff alleges that Carrington only released
$660.77; they kept $1321.53 and did not apply it either to
the mortgage balance or remove the loan from default status.
(Id.) Plaintiff alleges that Carrington did not pay
her homeowners' insurance that is escrowed into the
mortgage payments. (Compl. ¶ 25).
Plaintiff argues that she is entitled to have the foreclosure
set aside because of the “fraud of the defendant”
according to Rule 9 of the “Tennessee Rules of Civil
Procedure.” (Compl. ¶ 26). Further, Plaintiff
alleges that she is entitled to injunctive relief to prohibit
the alienation of the property and that she is entitled to
injunctive relief to prohibit the issuance of any writ of
possession for the 4573 Fawn Hollow Cove property by any
property. (Compl. ¶ 27). Finally, Plaintiff alleges that
she is entitled to have the homeowners' insurance policy
reinstated for the property while the issues are being
litigated. (Compl. ¶ 28).
initial matter, Plaintiff's Complaint was originally
filed unsigned. Rule 11(a) of the Federal Rules of Civil
Procedure require the Court to “strike an unsigned
paper unless the omission is promptly corrected after being
called to the attorney's or party's attention.”
See Metro. Life Ins. Co. v. McGhee, No.
15-2467-STA-dkv, 2016 WL 2742429, at *4 n.16 (W.D.Tenn. May
10, 2016); Perrywatson v. United Airlines, Inc., No.
10 C 0639, 2011 WL 2470103, at *2 (N.D. Ill. June 20, 2011)
(noting that “[t]he sanction [of striking an unsigned
paper] is mandatory.”) However, as Plaintiff addresses
in her Response, on February 24, 2016, a signed Complaint was
filed with the Chancery Court for the Thirtieth Judicial
District at Memphis (D.E. #19-1). Thus, this issue has been
remedied and no longer remains before the Court.
12(b)(6) of the Federal Rules of Civil Procedure provides
that a claim may be dismissed for failure to state a claim
upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). In
addressing a motion to dismiss under Rule 12(b)(6), the court
must construe the complaint in the light most favorable to
plaintiff and accept all well-pled factual allegations as
true. League of United Latin Am. Citizens v.
Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). A plaintiff
can support a claim “by showing any set of facts
consistent with the allegations in the complaint.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563
(2007). This standard requires more than bare assertions of
legal conclusions. Bovee v. Coopers & Lybrand
C.P.A., 272 F.3d 356, 361 (6th Cir. 2001). “[A]
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. Any
claim for relief must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Erickson v. Pardus, 551 U.S. 89,
93 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). “Specific
facts are not necessary; the statement need only ‘give
the defendant fair notice of what the . . . .claim is and the
grounds upon which it rests.” Id. (citing
Twombly, 550 U.S. at 555).
a complaint must contain sufficient facts “state a
claim to relief that is plausible on its face'” to
survive a motion to dismiss. Twombly, 550 U.S. at
570. “The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 US. 662,
678 (2009) (citing Twombly, 550 U.S. at 556).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550