United States District Court, M.D. Tennessee, Nashville Division
JONATHAN S. PARRISH
U.S. BANK NATIONAL ASSOCIATION AS INDENTURE TRUSTEE OF THE GMACM HOME EQUITY LOAN TRUST 2004-HE3
REPORT AND RECOMMENDATION
BARBARA D. HOLMES UNITED STATES MAGISTRATE JUDGE
Honorable Aleta A. Trauger, District Judge
Order entered September 3, 2019 (Docket Entry No. 10), the
Court referred this pro se action to the Magistrate
Judge for pretrial proceedings under 28 U.S.C. §§
636(b)(1), Rule 72(b) of the Federal Rules of Civil
Procedure, and the Local Rules of Court.
pending before the Court is the motion to dismiss (Docket
Entry No. 5) filed by Defendant U.S. Bank National
Association, as Indenture Trustee of the GMACM Home Equity
Loan Trust 2004-HE3. Plaintiff has not filed a response to
the motion. For the reason set out below the Court
respectfully recommends that the motion be granted and this
action be dismissed.
S. Parrish (“Plaintiff”) is a resident of
Nashville, Tennessee. On June 18, 2019, he filed a pro
se lawsuit against U.S. Bank National Association, as
Indenture Trustee of the GMACM Home Equity Loan Trust
2004-HE3 (“Defendant” or “U.S.
Bank”), in the Chancery Court for Davidson County,
Tennessee. See Complaint (Docket Entry No. 1-2 at
4-10). U.S. Bank thereafter removed the case to this Court
under 28 U.S.C. §§ 1441 and 1446 on the basis of
diversity jurisdiction under 28 U.S.C. § 1332.
lawsuit centers around a piece of real property located at
4804 Danby Drive, Nashville, Tennessee (the
“Property”). Plaintiff and his wife purchased the
Property on December 17, 2004, by executing a loan agreement
in the amount of $149, 200.00 and a deed of trust securing
the loan in favor of the lender, GMAC Mortgage Corporation
(“GMAC”). See Complaint at 5, ¶
At the same time, Plaintiff and his wife also entered into a
home equity line of credit (“HELOC”) agreement
with GMAC and secured the line of credit agreement with a
separate deed of trust on the Property (“HELOC
DOT”). Id. Although Plaintiff does not allege any
facts as to the status of payments on the primary loan and
the HELOC, he asserts that he received a “Substitute
Trustee Sale Notice” from Shapiro & Ingle, LLP
(“Shapiro”), on January 4, 2019, stating that the
HELOC was in default, that the party entitled to enforce the
debt was U.S. Bank, and that the Property was scheduled to be
sold at a public auction on February 12, 2019. Id.
at 6, ¶ 11; Exhibit G (Docket Entry No. 1-2) at 61-64.
Plaintiff does not allege any additional facts concerning the
auction of the Property, and there is no indication from
anything in the record that the auction took place.
alleges that none of the deeds of trust or loan agreements
have been “negotiated in any way, through [endorsement]
or Assignment” to U.S. Bank, see Complaint at
6, ¶ 12, and he disputes that U.S. Bank has a legal
interest in the Property that gives it standing and an
equitable right to foreclose on the Property. Although
Plaintiff acknowledges that a Substitution of Trustee was
filed and recorded on December 12, 2018, in which U.S. Bank
states it is the lender on the HELOC and appoints Shapiro as
the substitute trustee on the HELOC DOT, he alleges that this
document was fraudulently filed in breach of the deed of
trust for the primary loan agreement, id. at 7,
¶ 15, and in a scheme “to drive Plaintiff into
foreclosure so that they could acquire the [Property] with
its large equity at a bargain basement price.”
Id. at 7-8, ¶¶ 15-17. Plaintiff further
alleges that his title to the property has been slandered
because the recording requirements for the deed of trust have
not been met. Id. at 9, ¶ 21. Seeking actual
damages and an order that (1) the title to the Property
remain in his name during the pendency of the litigation and
(2) any attempted sale of the Property be declared null and
void, id. at 8, ¶ 20, Plaintiff brings claims
against U.S. Bank for breach of contract, lack of standing,
fraud, and declaratory relief. Id. at 4.
MOTION TO DISMISS
of an answer, Defendant filed the pending motion to dismiss
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Defendant argues that Plaintiff fails to allege facts
supporting his claims for relief and that the underlying
premise for his lawsuit is flawed. Specifically, Defendant
argues that the notice of foreclosure sale that Plaintiff
received occurred not pursuant to enforcement of the primary
home loan agreement and its deed of trust but, instead,
pursuant to enforcement of the HELOC agreement and the HELOC
DOT. Defendant asserts that it was assigned GMAC's legal
interest in the HELOC DOT pursuant to a recorded
assignment and that it was within its rights to take
steps to enforce the HELOC DOT. Defendant contends that
Plaintiff's claims are based upon the instruments created
for the underlying home loan, not for the HELOC, and that
Plaintiff fails to allege facts supporting his claims of
fraud, breach of contract, or slander of title. Finally,
Defendant argues that Plaintiff fails to allege facts showing
that he has satisfied his payment obligations under the HELOC
agreement and, thus, fails to show that he has a factual or
legal basis for an equitable claim that the foreclosure
proceedings should be stopped and/or that he should be
granted a free and clear title to the Property.
Order entered September 5, 2019, Plaintiff was notified of
the motion, given a deadline of October 4, 2019, to file a
response, and advised that his failure to file a timely
response may result in the dismissal of the case.
See Docket Entry No. 11. The docket reflects that
Plaintiff has not responded to the motion nor made any other
type of filing since filing his complaint.
STANDARD OF REVIEW
motion to dismiss is reviewed under the standard that the
Court must accept all of the well pleaded allegations
contained in the complaint as true, resolve all doubts in
Plaintiff's favor, and construe the complaint liberally
in favor of the pro se Plaintiff. See Kottmyer
v. Maas, 436 F.3d 684 (6th Cir. 2006); Boswell v.
Mayer, 169 F.3d 384, 387 (6th Cir. 1999); Morgan v.
Church's Fried Chicken, 829 F.2d 10, 11-12 (6th Cir.
1987). However, Plaintiff must nonetheless provide factual
grounds supporting his claims for relief. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (abrogating
Conley v. Gibson, 355 U.S. 41 (1957)). See also
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
factual allegations must be enough to show a plausible right
to relief. Twombly, 550 U.S. at 555-61. The
complaint must contain either direct or inferential factual
allegations that are sufficient to sustain a recovery under
some viable legal theory. Id.; Scheid v. Fanny
Farmer Candy Shops, Inc., 859 F.2d 434, 436-37 (6th Cir.
1988). To state a plausible claim for relief, the alleged
facts must provide “more than a sheer possibility that
a defendant has acted unlawfully.” Mik v. Federal
Home Loan Mortg. Corp., 743 F.3d 149, 157 (6th Cir.
2014) (quoting Iqbal, 556 U.S. at 678). The well
pleaded factual allegations must "do more than create
speculation or suspicion of a legally ...