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Schroeder v. Feld

United States District Court, D. Nebraska

December 9, 2019

KERRY FELD, Alleged Trustee; RYAN FORREST, and WILLIAM BLAKE, Defendants.



         This matter is before the court on Defendants Kerry Feld's and Ryan Forrest's preservice motion to dismiss (filing no. 7) and for preliminary review of Plaintiff Carla M. Schroeder's (“Plaintiff” or “Schroeder”) Complaint (filing no. 1) pursuant to 28 U.S.C. § 1915(e)(2). For the reasons discussed below, the court will dismiss this matter with prejudice.

         I. BACKGROUND

         Schroeder filed her Complaint on July 1, 2019, seeking redress for injuries under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. (Filing No. 1.) Schroeder named Kerry Feld (“Feld”), Ryan Forrest (“Forrest”), and William Blake (“Blake”) as Defendants and, liberally construed, appears to sue the law firm of Kozeny & McCubbin as well.[1]

         Schroeder alleges in conclusory fashion that Defendants, who “were the agents and employees of their co-defendants . . . acting within the scope of their authority as agents and employees, ” are attempting to collect a debt from Schroeder as the alleged Trustee for a “non-existent judgement [sic] creditor, an illusory Trust.” (Filing No. 1 at CM/ECF p. 1.) Schroeder alleges Defendants' collection efforts violate 15 U.S.C. § 1692(g), as there was no “prior offer or mediation, ” and § 1692(e) “pursuant to a frivolous foreclosure suit[, ] Case, Nebraska, Lancaster County, Cl-14 3845. . . . involving Bank of America.” (Id. at CM/ECF pp. 1-2.) Liberally construed, Schroeder alleges that in Case No. CI14-3845, Bank of America “failed to prove existence of the Original Note” evidencing the debt owed by Schroeder and instead supplied a “fabricated” document. (Id. at CM/ECF p. 2.) Schroeder alleges “Bank of America nor any entity can be found to own the property except for the Deed holder Carla M. Schroeder . . . and there is no proper Trustee holding a lien on this property.” (Id.) Based on these allegations, Schroeder seeks damages from Defendants for the “false, willful, wanton and unconsciousable” [sic] pretenses they directed toward Schroeder and for “intentional infliction of extreme emotional distress.” (Id.)

         The court granted Schroeder leave to proceed in forma pauperis on July 3, 2019. (Filing No. 5.) Before the court could conduct a preliminary review of Schroeder's Complaint to determine whether summary dismissal was appropriate under 28 U.S.C. § 1915(e)(2), Feld and Forrest, with Forrest acting as counsel, filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) with a supporting brief on July 23, 2019. (Filing Nos. 7 & 8.) Shortly thereafter on July 26, 2019, Forrest submitted an affidavit identifying both himself and Feld as attorneys and employees of Kozeny & McCubbin, L.C., and attaching copies of several pleadings in Schroeder v. Bank of America Nat'l Assoc., et al., Case No. CI14-3845, District Court of Lancaster County, Nebraska (hereinafter “Schroeder I”), accessed from JUSTICE, the Nebraska Judicial Branch's online case records website.[2] (Filing No. 10.) The background information included in Feld's and Forrest's brief and the exhibits to Forrest's affidavit is necessary to understand Schroeder's Complaint, and the court sets out that information next.

         On May 8, 2015, Schroeder filed an amended complaint in Schroeder I against Bank of America, Kozeny & McCubbin, Quicken Loans, Mortgage Electronic Systems, Inc. (“MERS”), and Title Source listing six causes action: quiet title, declaratory judgment, accounting and conversion, slander of title, injunctive relief, and wrongful foreclosure. Schroeder's claims arose out of a mortgage loan transaction wherein Schroeder and her late husband executed and delivered a promissory note (“Note”) and deed of trust (“Deed”) in favor of Quicken Loans, Inc. (“Quicken”) on or about April 20, 2006. (Filing No. 10 at CM/ECF p. 4, Ex. 1.) The Note is secured by a Deed encumbering certain real property and improvements located at 6500 Princeton Road, Firth, Nebraska 68358. The Deed was recorded on April 27, 2006, as Document No. 2006019584 in the Lancaster County Register of Deeds Office. The subject real estate is legally described as follows: Lot 27, irregular tract located in the Southeast ¼ of Section 16, Township 7 North, Range 7 East of the 6th P.M., Lancaster County, Nebraska (hereinafter the “Property”). (Id. at CM/ECF pp. 11-12, Ex. 1.) Essentially, Schroeder claimed the assignment of the Deed to Bank of America by MERS, as nominee for Quicken, and MERS' attempt to substitute Kozeny & McCubbin as trustee were invalid thereby depriving those defendants of authority to conduct a foreclosure sale of the Property. (Id. at CM/ECF p. 5, Ex. 1.)

         The District Court of Lancaster County, Nebraska granted summary judgment for Kozeny & McCubbin on May 6, 2016, for Bank of America and MERS on May 9, 2017, and for Title Source on May 11, 2017. (Filing No. 10 at CM/ECF pp. 17-53, Exs. 2-3.) Generally, the court concluded that Schroeder lacked standing to challenge the assignment of the Deed to Bank of America, that the assignment of the Note and Deed to Bank of America was proper, and there was no evidence of any defect in the trustee's sale process that would render it void or voidable should it proceed. (See, e.g., Id. at CM/ECF pp. 31-37, Ex. 2.) Schroeder filed a Motion to Vacate the court's orders granting summary judgment which the court denied. (Id. at CM/ECF pp. 54-59, Ex. 4.) Schroeder appealed to the Nebraska Court of Appeals, which affirmed the decision of the district court. (Id. at CM/ECF pp. 60-68, Ex. 5.)

         In the present motion to dismiss, Defendants argue that Schroeder's Complaint fails to state a claim upon which relief may be granted and her claims are barred by the doctrines of res judicata and collateral estoppel. Schroeder has not submitted a brief in opposition to Defendants' motion to dismiss and the time in which to do so has long expired. Thus, Defendants' motion is fully submitted for the court's consideration.


         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a motion to dismiss, the factual allegations in a complaint “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must be dismissed if it does not plead “enough facts to state a claim for relief that is plausible on its face.” Id. at 570. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that the plausibility standard does not require a probability but asks for more than a sheer possibility that a defendant has acted unlawfully).

         For the purposes of a motion to dismiss, the court must “assume that well-pleaded factual allegations in the complaint are true and construe the complaint, and all reasonable inferences arising therefrom, most favorably to the pleader.” Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990) (internal quotation marks omitted). The court will not, however, “blindly accept the legal conclusions drawn by the pleader from the facts.” Id.“When the allegations in a complaint, however true, could not raise a claim of entitlement to relief, the complaint should be dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6).” Hawkins Constr. Co. v. Peterson Contractors, Inc., 970 F.Supp.2d 945, 949 (D. Neb. 2013).

         While a complaint “does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotation marks omitted). “The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

         In addition, the court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See28 U.S.C. ยง 1915(e). The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks ...

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