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Harris v. Wells Fargo Bank, N.A.

United States District Court, W.D. Tennessee, Western Division

March 18, 2019

HEATHER HOGROBROOKS HARRIS, Plaintiff,
v.
WELLS FARGO BANK, N.A., Defendant.

          REPORT AND RECOMMENDATION FOR SUA SPONTE DISMISSAL FOR LACK OF STANDING AND REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS

          DIANE K. VESCOVO CHIEF UNITED STATES MAGISTRATE JUDGE

         On June 11, 2018, the plaintiff, Heather Hogrobrooks Harris (“Harris”), filed a twenty-three (23) page type-written pro se complaint, which also included fifteen (15) pages of exhibits, against the defendant, Wells Fargo Bank, N.A. (“Wells Fargo”), in the United States District Court for the Western District of Tennessee. (Compl., ECF No. 1.) This case has been referred to the United States Magistrate Judge for management and for all pretrial matters for determination and/or report and recommendation as appropriate. (Admin. Order 2013-05, Apr. 29, 2013.)

         Harris's complaint alleges claims under 42 U.S.C. §§ 1981, 1982, and 1985(3), as well as state law claims for “Breach of an Unconscionable Contract, ” detrimental reliance, fraudulent misrepresentation, and violations of Tennessee consumer protection statutes. (Compl. 14-21, ECF No. 1.) After receiving permission from the court to extend the time for filing a responsive pleading, (ECF No. 18), Wells Fargo filed an answer on September 14, 2018, (ECF No. 22). The court then conducted a Rule 16 scheduling conference during which the undersigned magistrate judge sua sponte raised the issue of standing and subject matter jurisdiction, requested briefs from the parties on these issues, and set a briefing deadline of December 7, 2018. (Sched. Order 1-2, ECF No. 34.) Wells Fargo entered its brief on standing and jurisdiction on December 7, 2018. (Def.'s Br., ECF No. 40). Harris, on the other hand, did not file anything regarding the requested briefing until December 14, 2018, after the time for briefing had expired. (Pl.'s Br., ECF No. 43 & Pl.'s Supp. Br., ECF No. 44.)

         On January 3, 2019, Wells Fargo filed a motion for judgment on the pleadings asking that the court enter judgment in its favor because Harris's complaint “fails to plead sufficient factual matter to render any of her claims plausible.” (Mot. for J. on the Plead. 1, ECF No. 51.) Harris filed a response in opposition on January 7, 2019, (Pl.'s Resp. in Opp., ECF No. 53), to which Wells Fargo replied, (Def.'s Reply, ECF No. 58). Harris, without leave of court, filed a sur-reply on January 28, 2019. (Pl.'s Sur-Reply, ECF No. 60.)

         For the reasons that follow, it is recommended that Harris's complaint be dismissed sua sponte in its entirety for lack of standing. In the alternative, it is recommended that Wells Fargo's motion for judgment on the pleadings be granted.

         I. PROPOSED FINDINGS OF FACT

         This case arises out of Harris's attempts to assume the mortgage of her late husband, Jimmy D. Harris, following his death in March of 2015, and to obtain a mortgage modification from Wells Fargo. (Compl. 1, ECF No. 1.) The late Mr. Harris was the sole mortgagor and owner of the property at issue - 579 Byron Drive Memphis, Tennessee 38109. (Id. at ¶ 1.) In 2005, when Mr. Harris took out a mortgage on the property, the appraised property value was $120, 000. (Id. at ¶ 11.) Mr. Harris's 2005 mortgage loan was approximately $98, 000. (Id.) The most recent appraisal of the property, done in 2018 by the County Assessor, values the property at $90, 000. (Id.) As of the time of the filing of this suit, the balance due on the mortgage was approximately $48, 000. (Id.)

         In 2013, Mr. Harris was diagnosed with lung cancer. (Id. at ¶ 5.) Harris alleges that she contacted Wells Fargo on her husband's behalf in September 2014, in order to obtain an application to participate in the Home Affordable Modification Program (“HAMP”) in an attempt to lower the mortgage payments due to her husband's failing health. (Id. at ¶¶ 5-6.) Harris alleges that Wells Fargo agreed to send a HAMP application. (Id. at ¶ 6.) On October 26, 2014, Mr. Harris mailed Wells Fargo a power of attorney document, which allowed Harris to discuss the mortgage and execute documents on his behalf. (Id. at ¶¶ 6-7.) Harris claims that throughout December 2014, she made four or five calls to Wells Fargo, but never received a refinancing packet. (Id. at ¶ 7.)

         Mr. Harris died on March 10, 2015. (Id.) From what the court can glean from the complaint, Mr. Harris had a will which left the real property to Harris. (Id. at ¶ 8.) In lieu of probating the will, on May 19, 2015, Harris recorded an Affidavit of Heirship with the Register of Deeds “to have her inherited property officially registered and placed in her name.” (Id. at ¶ 10.)

         Harris continued to pay Mr. Harris's mortgage from his death through June of 2015, but she claims she “could not continue as her reserve resources had dwindled significantly . . . .” (Id. at ¶ 9.) Harris alleges that during the first three months after Mr. Harris's death, she requested copies of all mortgage documents, but did not receive all requested documents, (id.), and that she requested HAMP applications, (id. at ¶ 12). She claims that she sent Wells Fargo copies of her marriage license, Mr. Harris's death certificate, and her Affidavit of Heirship, asking that Wells Fargo send her documents regarding the mortgage. (Id.) Harris claims to have dealt with fifteen or more employees of Wells Fargo in trying to modify the mortgage on the property. (Id. at ¶ 13.)

         In October 2015, Harris received a notice of foreclosure. (Id. at ¶ 14.) Harris alleges that after contacting the foreclosure firm listed on the notice, she finally received her first HAMP application, which “she promptly filled out and returned.” (Id. at ¶ 15.) In December 2015, however, Harris received a second notice of foreclosure. (Id. at ¶ 16.) Harris alleges that a Wells Fargo representative informed her that the Affidavit of Heirship was insufficient to vest her with a property interest in Mr. Harris's property. (Id. at ¶ 17.) The Wells Fargo representative purportedly informed Harris that the “only way she could stop the foreclosure sale” was to open an estate in probate court and submit Mr. Harris's will to probate and provide Wells Fargo with letters testamentary, “at which time they would modify the loan.” (Id. at ¶ 19.) Harris opened an estate in probate court but the probate court refused to admit the will to probate. An appeal of the probate court's ruling was pending before the Tennessee Court of Appeals at the time Harris filed this lawsuit.[1] (Id. at ¶ 20.)

         Upon filing the will for probate, Harris was named the administrator of Mr. Harris's estate, (id. at ¶ 24), and provided letters testamentary, which she sent to Wells Fargo, (id. at ¶ 23). Harris received another foreclosure notice. (Id. at ¶ 23.) Harris, “absolutely devastated by [Wells Fargo] scheduling another foreclosure sale, ” withdrew as the administrator of the estate and appealed the probate court's decision denying probate of the will. (Id. at ¶ 24.) She alleges that Wells Fargo continued sending notices of foreclosure to Harris's address, despite “[knowing] the name and addresses of the attorney and the two other people mentioned in the will, ” (id. at ¶ 27), and has still continued sending mail to Harris as the representative of the estate “even though [Harris] has not held that title since June of 2016 and [Wells Fargo] knows there is and has been no Estate representative since, ” (id. at ¶ 28).

         Thereafter, Harris sent in another HAMP application, but received notices back from Wells Fargo stating that she was missing documents. (Id. at ¶ 29.) Harris purportedly responded to those notifications, sending in the proper documents, but still received another notice of foreclosure. (Id.) In January of 2017, Harris filed for bankruptcy, (id. at ¶ 30), which she claims was because Wells Fargo refused to allow her to modify Mr. Harris's mortgage, (id. at 1).

         Harris further alleges that in April of 2017 Wells Fargo allowed her to make “trial payments” totaling roughly 40% of her monthly income. (Id. at ¶ 31.) Although she paid these trial payments from May of 2017 through February 2018, Harris claims that Wells Fargo then called to inform her that she could not assume the loan until the probate matter was closed. (Id. at ¶ 35.) Wells Fargo purportedly returned all but one of her trial payments and Harris believes Wells Fargo wrongfully failed to pay her interest for the payments it held. (Id. at ¶ 32.)

         Harris alleges that she repeatedly - “about five times starting in November 2017” - returned the documents requested by Wells Fargo, but Wells Fargo “will not explain[] why [it] won't accept the document sent in compliance with their request and conformity with its form.” (Id. at ¶¶ 37-38.) Harris, “simply spent at this point, ” filed a complaint with the Consumer Financial Protection Bureau on December 27, 2017. (Id. at ¶ 39.) After Wells Fargo responded to Harris's Consumer Financial Protection Bureau complaint, Harris asserts that she received a “Notice of Action Taken and Statement of Reasons” informing her that the assumption could not be granted because the loan was not assumable “without any explanation of why”. (Id. at ¶¶ 33, 40; Ex. H, ECF No. 1-8.) Harris surmises that this rejection “[was] for retaliation, ” and “to cover up” Wells Fargo's unjust treatment of Harris, and to “unjustly enrich itself with the equity in the property.” (Id. at 1, ¶¶ 40, 42.)

         On January 18, 2018, Harris alleges that she received a call from a Wells Fargo representative, who informed her that the mortgage modification could not be completed because Harris “did not have a vested interest in the property . . . until [the court entered] an order closing the probate and an order from that court proclaiming [Harris] as the sole owner of the property” because there were two other heirs mentioned in the will, and apparently, Wells Fargo had reservations as to the true owner of the property. (Id. at ¶ 40.)

         Harris believes that Wells Fargo engaged in discriminatory lending practices by imposing requirements upon her for which “it will not offer her a reason[, ] and which cannot be discerned from the documents it sends or program rules available to [her].” (Id. at ¶ 43.) She also asserts that, at the time the 2005 mortgage was entered into, Mr. Harris received “less favorable terms that his then credit rating, income[, ] and full VA eligibility should have earned because of Wells Fargo's race based lending practices.” (Id. at ¶ 44.)

         Based on the foregoing facts, Harris alleges claims under 42 U.S.C. §§ 1981, 1982, and 1985(3), as well as state law claims for “Breach of an Unconscionable Contract, ” detrimental reliance, fraudulent misrepresentation, and violations of the Tennessee consumer protection statutes. (Id. at 14-21.)

         II. PROPOSED CONCLUSIONS OF LAW

         A. Standing

         Lack of standing implicates the case-or-controversy requirement of Article III, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), and, therefore, is a threshold issue in every federal case. Midwest Media Prop., L.L.C. v. Symmes Twp., Ohio, 503 F.3d 456, 469-70 (6th Cir. 2007). “When Article III standing is at issue, the plaintiff must allege facts sufficient to establish the requisite individualized harm.” Griffin v. Bank of Am., N.A., 226 F.Supp.3d 899, 901 (N.D. Ohio 2016)(citing Keener v. Nat'l Nurses Org. Comm., 615 Fed.Appx. 246, 251 (6th Cir. 2015)). Specifically, to establish standing, a plaintiff must allege (1) a concrete and particularized injury-in-fact; (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that a favorable decision will redress the injury. Lujan, 504 U.S. at 560-61. If a plaintiff cannot establish the requirements for standing, the court must dismiss the claim. Patel v. Hughes, No. 3:13-0701, 2014 WL 4655285, at *4 (M.D. Tenn. Sept. 16, 2014). “It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers.” Warth v. Seldin, 422 U.S. 490, 518 (1975).

         In its “Brief on Subject Matter Jurisdiction and Plaintiff's Standing, ” Wells Fargo argues that Harris does not have standing to bring her claims because she was neither a party to the deed of trust, nor an intended beneficiary of the mortgage contract. (Def.'s Br. on Standing 7-10, ECF No. 40.) Harris filed two separate “Response[s] to the Issue of her Standing, ” neither of which discuss the court's requested briefing on subject-matter jurisdiction and standing. (Pl.'s Br., ECF No. 43 & Pl.'s Supp. Br., ECF No. 44.) Instead, her responses continue to plead her case, criticize Wells Fargo's brief and actions with regard to this case, and complain about the court's handling of this case. (See Pl.'s Br., ECF No. 43 & Pl.'s Supp. Br., ECF No. 44.)

         Federal law specifies that cases in courts of the United States may be conducted only by the parties personally or through counsel. 28 U.S.C. § 1654. Section 1654 provides that, “[i]n all courts of the United States, the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.” The federal courts have long held that § 1654 preserves a party's right to proceed pro se, but only on his own claims. Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 201-03 (1993); United States v. 9.19 Acres of Land, 416 F.2d 1244, 1245 (6th Cir. 1969); accord Shepherd v. Wellman, 313 F.3d 963, 970-71 (6th Cir.2003)(pro se party may not prosecute a wrongful death action on behalf of other beneficiaries).

         An estate is represented by a lawfully appointed executor or administrator. Harris does not allege that she is the appointed representative of her late husband's estate, and therefore the court presumes that she is not. Davis, 2013 WL 4446240, at *5 (“The complaint does not allege that [plaintiff] is her son's personal representative, and therefore the court assumes that [plaintiff] is not acting in a representative capacity for her son's estate.”). In fact, Harris pleads the exact opposite. Harris's complaint alleges that she “withdrew as the administrator of the estate” after being “absolutely devastated by [Wells Fargo] scheduling another foreclosure sale for her property” while her late husband's will was submitted to probate. (Compl. ¶ 24, ECF No. 1.) She claims that “[she] has not held that title since June of 2016 and . . . there is and has been no Estate representative since.” (Id. at § 28.) Therefore, Harris cannot establish that she is the administrator of the estate for the purposes of establishing standing. Because Harris is not the administrator of her late husband's estate, she cannot bring claims against Wells Fargo on behalf of his estate.

         Even if Harris were the administrator of her late husband's estate, “an executor of an estate may not appear pro se when the estate has beneficiaries and creditors other than the litigant.” Matthews, 2014 WL 3049906, at *5 (quoting Shepherd, 313 F.3d at 970). Here, Harris's complaint sets forth that her late husband's estate has multiple heirs: (1) Harris, (2) Mr. Harris's adult son, and (3) “another [person] that [Mr. Harris] accepted as his son since his high school days.” (Compl. ¶ 8, ECF No. 1.)[2] Harris should not be allowed to proceed pro se in this instance where “interests other than [her] own are at stake.” Shepherd, 313 F.3d at 970. Accordingly, Harris lacks standing to proceed on the estate's behalf.

         Finally, to the extent that Harris is asserting claims related to the mortgage contract between Wells Fargo and Mr. Harris, Harris has no standing to assert them. See Coleman v. Indymac Venture, LLC, 966 F.Supp.2d 759, 770 (W.D. Tenn. 2013)(holding that the plaintiff has no standing to sue as a borrower/debtor under the Deed of Trust where another person is the only borrower listed under that agreement); see also Ivey v. Wells Fargo Home Mortg., No. 15-2259-STA-cgc, 2015 WL 12826638, at *2 (W.D. Tenn. Sept. 28, 2015)(holding that the “[p]laintiff lacks standing to bring any claims for breach of the deed of trust between [borrower] and [lender]); Dey El ex rel Ellis v. First Tennessee Bank, No. 13-2449-JDT-dkv, 2013 WL 6092849, at *11 (W.D. Tenn. Nov. 18, 2013)(holding “[t]o the extent that [plaintiff's] claims arise out of the loan transaction between [debtor] and [lender], he lacks standing to pursue such claims because he was not a party to the transaction”). Harris alleges that Mr. Harris entered into a contractual relationship with Wells Fargo in 2005 concerning the mortgage of his property; however, Harris does not allege that she was a party to this agreement. (Compl. ¶ 1, ECF No. 1.) Generally, Tennessee law presumes that contracts are “executed for the benefit of the parties thereto and not third persons.” Owner-Operator Indep. Drivers Assoc., Inc. v. Concord EFS, Inc., 59 S.W.3d 63, 68 (Tenn. 2001); Ward v. Glover, 206 S.W.3d 17, 33 (Tenn. Ct. App. 2006). Non-parties to a contract have no standing to sue for its enforcement, except under circumstances that are not present in this case.[3] Concord EFS, Inc., 59 S.W.3d at 68 (holding that non-parties to a contract lacked standing unless they could show that they were intended third-party beneficiaries of the contract). Because Harris was not a party to the mortgage contract between Mr. Harris and Wells Fargo and because she was not an intended beneficiary of that mortgage contract, Harris the requisite causal connection does not exist between Wells Fargo's refusal to modify her late husband's deed of trust and the injury presented by a potential foreclosure. Lujan, 504 U.S. at 560-61.

         Therefore, Harris lacks standing to state claims with relation to the contract between Mr. Harris and Wells Fargo. Accordingly, it is recommended that Harris's complaint be dismissed sua sponte in its entirety for lack of standing.

         B. Wells Fargo's Motion for Judgment on the Pleadings

         Also before the court is Wells Fargo's January 3, 2019 motion for judgment on the pleadings. (Mot. for J. on the Pleadings, ECF No. 51.) Harris filed a response in opposition on January 7, 2019, (Pl.'s Resp., ECF No. 53), and Wells Fargo filed a reply on January 22, 2019, (Def.'s Reply, ECF No. 58).[4]

         1. Standard of Review

         In deciding a motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure, the court applies the standards under Rule 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009) and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). See Lindsay v. Yates, 498 F.3d 434, 437 (6th Cir. 2007)(“[T]he legal standards for adjudicating Rule 12(b)(6) and Rule 12(c) motions are the same.”) To survive a Rule 12(b)(6) motion to dismiss following Iqbal and Twombly, a complaint must “‘contain 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 Iqbal, 556 U.S. at 678). The court “construes the complaint in a light most favorable to the plaintiff” and “accepts all factual allegations as true” to determine whether they plausibly suggest an entitlement to relief. HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir. 2012). However, “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.” Iqbal, 556 U.S. at 679.

         “Pro se complaints are to be held ‘to less stringent standards than formal pleadings drafted by lawyers,' and should therefore be liberally construed.” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011)(quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir.2004)). Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Further, the courts are not required to act as counsel for a pro se litigant; nor are they required to sort through the pleadings to create a claim on behalf of the plaintiff. Pliler v. Ford, 542 U.S. 225, 231 (2004)(“[D]istrict judges have no obligation to act as counsel or paralegal to pro se litigants.”); Brown v. Matauszak, 415 Fed.Appx. 608, 613 (6th Cir. 2011)(“[A] court cannot create a claim which [a plaintiff] has not spelled out in his pleading.”)(internal quotation marks omitted). Requiring the court “to ferret out the strongest cause of action on behalf of pro se litigants . . . would transform the courts from neutral arbiters of disputes into advocates for a particular party.” Young Bok Song v. Gipson, 423 Fed.Appx. 506, 510 (6th Cir. 2011). “While courts are properly charged with protecting the rights of all who come before it, that responsibility does not encompass advising litigants as to what legal theories they should pursue.” Id.

         2. Harris's Federal Claims

         a. 42 U.S.C. § 1985(3)

         In a paragraph titled “42 U.S.C. § 1985(3), ” Harris alleges the following:

[Wells Fargo] caused the county sheriff on many occasions to place [Harris's] residence for sale, coerced [her] to take actions in state courts in attempt to save her home, denied her the application of state and federal regulations and public policy edicts specifically enacted to protect her against the loss of her home[, ] and ultimately denied her modification and assumption attempts . . . without any explanation.

(Compl. ¶ 45, ECF No. 1.) Harris alleges that this constitutes a violation of 42 U.S.C. § 1985(3). (Id.) In its motion for judgment on the pleadings, Wells Fargo argues that Harris has failed to plead sufficient facts indicating that Wells Fargo has engaged in any racially discriminatory treatment of Harris. (Mot. for J. on the Pleadings 6, ECF No. 51-1.) Wells Fargo also argues that, even if Harris could plead racial animus, her claim under § 1985(3) must fail because Wells Fargo cannot conspire with itself. (Id. at 9.) Harris's ...


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