Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ekness v. Bank of America, N.A.

United States District Court, Eighth Circuit

November 18, 2013

Darwood Ekness and Cheryl Ekness, Plaintiffs,
v.
Bank of America, N.A., BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP, Federal Home Loan Mortgage Corporation, Peterson, Fram & Bergman, P.A., Steven H. Bruns Mortgage Electronic Registration Systems, Inc., John Does 1 thru 100, Defendants.

No appearance on behalf of plaintiffs.

Mark G. Schroeder, Esq. and Briggs & Morgan, PA, 80 South Eighth Street, Minneapolis, MN 55402 and Jared M. Goerlitz, Esq. and Peterson, Fram & Bergman, PA, counsel for defendants.

ORDER

DAVID S. DOTY, District Judge.

This matter is before the court upon the motions to dismiss by defendants.[1] Based on a review of the file, record and proceedings herein, and for the following reasons, the court grants the motions.

BACKGROUND

This mortgage dispute arises out of the foreclosure on property owned by plaintiff Darwood Ekness.[2] In June 2005, Ekness executed a note and mortgage with Bremer Bank National Association (Bremer Bank) for property located at 610 West Marshall Street in Marshall, Minnesota (property). Schroeder Aff. Exs. A-B. MERS served as nominee for Bremer Bank. Ver. Compl. ¶ 12. In December 2010, MERS assigned the mortgage to BAC.[3] Schroeder Aff. Ex C. On September 29, 2011, the assignment was recorded in Lyon County, Minnesota. Id . Bruns acknowledged the assignment as Vice President of MERS. Id.

Following the assignment, Ekness defaulted on the mortgage. Ver. Compl. ¶ 11. Thereafter, Ekness requested a loan modification, which BOA denied. Id . BOA foreclosed on the property and held a sheriff's sale on May 7, 2012. Id . ¶ 19. PFB represented BOA during the foreclosure. Id . ¶ 15.

On March 11, 2013, the Eknesses filed this pro se complaint in Minnesota court, alleging fraud, claims under Minnesota Statutes §§ 580.041, 580.03, 580.02 and 58.13 and a violation of the Real Estate Settlement Procedures Act (RESPA). Defendants timely removed[4] and move to dismiss.

DISCUSSION

I. Standard of Review

To survive a motion to dismiss for failure to state a claim, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Braden v. Wal-Mart Stores, Inc. , 588 F.3d 585, 594 (8th Cir. 2009) (citations and internal quotation marks omitted)). "A claim has facial plausibility when the plaintiff [has pleaded] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949 (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556 (2007)). Although a complaint need not contain detailed factual allegations, it must raise a right to relief above the speculative level. See Twombly , 550 U.S. at 555. "[L]abels and conclusions or a formulaic recitation of the elements of a cause of action" are not sufficient to state a claim. Iqbal , 129 S.Ct. at 1949 (citation and internal quotation marks omitted).

The court does not consider matters outside the pleadings under Rule 12(b)(6). See Fed.R.Civ.P. 12(d). The court, however, may consider matters of public record and materials that do not contradict the complaint, as well as materials that are "necessarily embraced by the pleadings." See Porous Media Corp. v. Pall Corp. , 186 F.3d 1077, 1079 (8th Cir. 1999) (citation and internal quotation marks omitted). Here, the Note, Mortgage, Assignment and Certificate of Sheriff's Sale are public records and necessarily embraced by the complaint. See Schroeder Aff. Exs. A-D.

II. Fraud

The Eknesses first argue that the foreclosure and sheriff's sale were invalid because the defendants committed fraud. Specifically, the Eknesses argue that defendants "jointly and together manufactured a false and fraudulent assignment" and "had no authority to assign" the mortgage. Ver. Compl. ¶¶ 34-36. Under Minnesota law, to prove common law fraud, a plaintiff must show (1) a false representation of material fact, (2) knowledge of the representation's falsity by the person making the representation, (3) intent that another person relies on the false representation or circumstances justifying reliance by the other person, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.