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Toss v. Homeward Residential, Inc.

United States District Court, D. Minnesota

March 3, 2014

Koffi Toss, formerly known as Koffi Samaro and Shannon Fouther, Plaintiffs,
v.
Homeward Residential, Inc., Federal National Mortgage Association, Defendants.

Jonathan L.R. Drewes, Esq. and Drewes Law, PLLC, counsel for plaintiffs.

Jared D. Kemper, Esq., Andrew Peters, Esq. and Dykema Gossett, PLLC, counsel for defendants.

ORDER

DAVID S. DOTY, District Judge.

This matter is before the court upon the motion to dismiss by defendants Homeward Residential, Inc. (Homeward) and Federal National Mortgage Association (Fannie Mae) (collectively, defendants). Based on a review of the file, record and proceedings herein, and for the following reasons, the motion is granted.

BACKGROUND

This mortgage dispute arises out of the foreclosure of property owned by plaintiff Koffi Toss, formerly known as Koffi Samaro. In January 2006, Toss executed a mortgage serviced by Homeward on property located at 934 Fuller Avenue in St. Paul, Minnesota (Property). Compl. ¶¶ 1, 5. In July 2012, Toss defaulted on the mortgage and a sheriff's sale was scheduled for September 11, 2012. Id . Ex. A, at 8.

On July 26, 2012, Homeward approved Toss for a four-month forbearance plan (Forbearance Plan), pursuant to which Toss would make reduced monthly payments of $400. Id . Ex. B, at 1. Homeward informed Toss that he could accept the Forbearance Plan offer in writing or by contacting Homeward by telephone. Id . Toss called the provided telephone number and made his first payment by telephone. Compl. ¶ 13. Thereafter, Toss made all payments required by the Forbearance Plan. Id . ¶ 14. The Forbearance Plan provided that Homeward would not "proceed to foreclosure sale during this Forbearance Plan, provided [Toss] compl[ied] with the terms of the Forbearance Plan." Id . Ex. B, at 2.

On December 12, 2012, prior to the expiration of the Forbearance Plan, Homeward caused a sheriff's sale to be held. Compl. ¶ 17. Homeward purchased the Property at the sale and assigned the Property to Fannie Mae. Id . ¶¶ 4, 17. Toss and another occupant of the Property, plaintiff Shannon Fouther (collectively, plaintiffs), allege that they did not receive notice prior to the foreclosure sale. Id . ¶ 31-32. Alternatively, plaintiffs allege that the "loss mitigation phone number" included with the notice was incorrect. Compl. ¶¶ 36-37.

On July 12, 2013, plaintiffs filed this action in Minnesota court, alleging (1) breach of contract, (2) violations of Minnesota Statutes § 580.02, (3) violations of Minnesota Statutes §§ 580.03 and 580.041, (4) slander of title and (5) a quiet-title claim under Minnesota Statutes § 559.01. Defendants timely removed, 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 (2009) (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).

II. Breach of Contract

Plaintiffs first allege that Homeward breached the Forbearance Plan by foreclosing on the Property before the Forbearance Plan expired. Defendants respond that Minnesota Statutes § 513.33 precludes such a claim. Section 513.33 provides that a "debtor may not maintain an action on a credit agreement[1] unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and debtor." Minn. Stat. § ...


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