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Strong v. HSBC Mortgage Services, Inc.

United States District Court, D. Nebraska

July 26, 2016

MIKE K. STRONG, Plaintiff,
v.
HSBC MORTGAGE SERVICES, INC.; CALIBER HOME LOANS, INC., U.S. Bank Trust N.A. as Trustee of LSF9 Master Participation Trust; KOZENY & MCCUBBIN, Kerry Feld, Successor Trustee; and KERRY FELD, Defendants.

          MEMORANDUM AND ORDER

          ROBERT F. ROSSITER, JR. United States District Judge.

         This matter is before the Court on Defendant Caliber Home Loans, Inc.’s (Caliber) Motion to Dismiss, or Alternatively, for More Definite Statement (Filing No. 9) and Defendants Kozeny & McCubbin and Kerry Feld, Successor Trustee’s (collectively, K&M) Motion to Dismiss, or in the Alternative, Motion for More Definite Statement (Filing No. 11).[1] See Fed. R. Civ. P. 12(b)(6), (e). Plaintiff Mike K. Strong (Strong)- proceeding pro se-opposes the motions (Filing Nos. 15, 16). For the reasons stated below, the Court grants Caliber’s and K&M’s respective motions to the extent they seek a more definite statement and denies the motions to the extent they seek dismissal.

         I.BACKGROUND

         On March 8, 2007, Strong and his wife executed a $357, 000 promissory note in favor of HSBC Mortgage Services, Inc. (HSBC) in return for a loan on their home in Gretna, Nebraska. According to the Complaint, HSBC later sold Strong’s debt to Caliber and K&M acted as trustee under a deed of trust on the property. On March 18, 2015, K&M recorded a notice of default on the loan based on Strong’s failure to make payments when due. The notice identified HSBC as the beneficiary of the deed of trust and the lawful holder of Strong’s promissory note. On May 15, 2015, K&M notified Strong the property would be sold at a foreclosure sale on June 8, 2015. In response, Strong filed a quiet title action in state court and requested a temporary restraining order but later voluntarily dismissed the Complaint and filed for bankruptcy. Strong avers his bankruptcy petition was dismissed because he “did not qualify.” It is not clear from the Complaint whether the foreclosure sale ever took place.

         On December 29, 2015, Strong filed the present “Quiet Title Action Declaratory Judgement” against HSBC, Caliber, and K&M in state court, alleging they “willfully violated, consumer credit reporting requirements, State and Federal mortgage disclosure and notice requirements, [and] State and Federal consumer protection regulations” and committed “fraud for profit and or unjustified risk based pricing ‘Mortgage Loan’ fraud.” That same day, Caliber removed the action to federal court (Filing No. 1) pursuant to 28 U.S.C. § 1331 because Strong asserted “numerous claims arising under and invoking federal law.”[2] See 28 U.S.C. §§ 1441(a), 1446. Upon removal, Caliber and K&M separately moved to dismiss, or in the alternative, for a more definite statement.

         II. DISCUSSION

         A. The Named Defendants

         As an initial matter, the Court has some additional questions about the status of some of the named defendants. HSBC is named in the Complaint, but the docket sheet indicates HSBC has not entered an appearance in this case. The materials Caliber submitted in support of removal (Filing No. 1-1) give some indication HSBC-like Caliber and K&M-was served with summons by certified mail in November 2015 while this case was pending in state court.

         Section 1446(b)(2)(A) provides “[w]hen a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.” In its Notice of Removal (Filing No. 1), Caliber (1) explains U.S. Bank Trust N.A., as Trustee for LSF9 Master Participation Trust, (US Bank) is a separate entity from Caliber and was never served with summons and (2) asserts “[t]o the extent [Strong] has properly served U.S. Bank, ” the Notice of Removal is also filed on U.S. Bank’s behalf. But Caliber’s Notice of Removal is otherwise silent as to the consent of the other named defendants, including HSBC. If HSBC was properly joined and served, Caliber presumably would have obtained and noted HSBC’s consent to remove this action.

         For his part, Strong did not allege any defect in removal, see 28 U.S.C. § 1447(c), and has not responded to Caliber’s assertion that U.S. Bank is a separate entity that has not been served. Indeed, Strong and Caliber both refer to U.S. Bank in their respective briefs regarding Caliber’s Motion to Dismiss. Strong also has not addressed HSBC’s failure to enter an appearance in this case. In opposing dismissal, Strong opines HSBC “is the only defendant who has provided the correct response to plaintiff’s complaint, which is no response, therefore subject [sic] to declaratory judgment and relief as defined in plaintiff’s complaint” (Filing No. 16). But Strong has not sought entry of default or default judgment under Federal Rule of Civil Procedure 55.

         The parties shall jointly or separately advise the Court in writing of the status of HSBC and U.S. Bank as defendants in this case within ten (10) days of the date of this order.

         B. Rule 12 Motions

         Caliber and K&M have each moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss Strong’s Complaint for failing “to state a claim upon which relief can be granted” (Filing Nos. 9, 11). “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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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. “The court accepts as true all factual allegations, but is ‘not bound to accept as true a legal conclusion couched as a factual allegation.’” McAdams v. McCord, 584 F.3d 1111, 1113 (8th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).

         In challenging the Complaint, Caliber and K&M do not take a scalpel to Strong’s allegations, opting instead for a broadsword and attempting to end this case with a single blow. Without delving into Strong’s allegations, despite some prior experience with Strong’s claims and this type of case, Caliber simply complains that Strong’s “nonsensical statements and accusations” fail “to provide any valid factual or legal basis for the relief he requests beyond conclusory statements.” According to Caliber, Strong “cites to random statutory regulations that [he] alleges Caliber has violated” but ...


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