United States District Court, D. Minnesota
Stacy A. Fleming and Brian J. Fleming, Plaintiffs,
U.S. Bank National Association, as Trustee for Citigroup Mortgage Loan Trust Inc., Mortgage Pass-Through Certificates, Series 2006-AR3; and Wells Fargo Bank, N.A., Defendants.
Stacy A. Fleming and Brian J. Fleming, 3975 Cardinal Court, Rosemount, MN 55068, pro se.
Charles F. Webber and Jessica Z. Savran, Faegre Baker Daniels LLP, 90 South Seventh Street, Suite 2200, Minneapolis, MN 55402, for Defendants.
REPORT AND RECOMMENDATION
HILDY BOWBEER, Magistrate Judge.
This matter is before the Court on a Motion to Dismiss filed by Defendants U.S. Bank National Association ("U.S. Bank") and Wells Fargo Bank, N.A. ("Wells Fargo") (collectively "Defendants") [Doc. No. 4]. The motion was referred to the undersigned by the Honorable Patrick J. Schiltz, United States District Judge, in an Order of Reference dated April 27, 2015 [Doc. No. 11]. Defendants move to dismiss all claims alleged by Plaintiffs Stacy A. Fleming and Brian J. Fleming (collectively "Plaintiffs") on the basis of claim preclusion and for failure to state a claim on which relief may be granted. For the reasons set forth below, the Court recommends that the motion be granted.
This is Plaintiffs' second lawsuit in a year against U.S. Bank and Wells Fargo. Their first lawsuit, Fleming v. U.S. Bank National Association, No. 14-cv-3446 (DSD/JSM) (" Fleming I "), was dismissed by the Honorable David S. Doty, United States District Judge, on February 6, 2015. Fleming I, No. 14-cv-3446 (DSD/JSM), slip op. at 1 (D. Minn. Feb. 6, 2015) [Doc. No. 24].
A. Plaintiffs' Prior Case
In Fleming I, Plaintiffs alleged violations of the Fair Debt Collection Practices Act (FDCPA) and the Real Estate Settlement Procedures Act (RESPA). Am. Compl., passim, Fleming I, No. 14-cv-3446 (DSD/JSM) [Doc. No. 12-1].) They also alleged state law claims for replevin and to set aside a foreclosure sale, based on a mortgage dispute and foreclosure proceedings. Id. at 10, 13. The facts of Fleming I, as summarized in Judge Doty's February 6, 2015, order, are briefly as follows.
On February 23, 2006, Plaintiffs executed a $390, 000 promissory note in favor of Gopher State Management Corporation ("Gopher State") for the purchase of a home in Rosemount, Minnesota. Fleming I, No. 14-cv-3446 (DSD/JSM), slip op. at 1-2 (D. Minn. Feb. 6, 2015) [Doc. No. 24]. Plaintiffs also executed a mortgage, which included a power of sale. Id. at 2. Gopher State later assigned the mortgage to Wells Fargo, who in turn assigned it to U.S. Bank. Id. The mortgage assignment to U.S. Bank was recorded on March 20, 2006. Id.
On July 18, 2014, Plaintiffs sent a "Qualified Written Request" (QWR) to U.S. Bank, requesting thirty-five categories of information and documents relating to the note and mortgage. Id. U.S. Bank forwarded the QWR to Wells Fargo, the loan servicer, who provided information to Plaintiffs such as loan status, payment history, loan validation, insurance, fees assessment, and estimated payoff date. Id. Eventually Plaintiffs defaulted on their note. Id. at 3. On August 14, 2014, U.S. Bank published and served Plaintiffs with a notice of foreclosure sale. Id. at 3. Before the sale occurred, however, Plaintiffs filed a petition for bankruptcy. Id. Plaintiffs then initiated suit in federal court against U.S. Bank and Wells Fargo.
Judge Doty dismissed Plaintiffs' FDCPA, RESPA, and replevin claims on February 6, 2015. Fleming I, No. 14-cv-3446 (DSD/JSM), slip op. at 10 (D. Minn. Feb. 6, 2015) [Doc. No. 24]. Judge Doty rejected Plaintiffs' "show-me-the-note" argument, finding that U.S. Bank was entitled to foreclose on the mortgage through a valid assignment. Id. at 6. Thus, the attempted foreclosure was not an abusive or deceptive practice under the FDCPA. Id. Judge Doty also rejected as conclusory Plaintiffs' allegations that U.S. Bank and Wells Fargo
(1) threatened to sue and take possession of the property; (2) asked the location of their employment and threatened to garnish their wages; (3) failed to provide validation of their debt within five days of being contacted; (4) intimidated them by trespassing on the property, taking photographs without permission, and looking through windows; and (5) acquired their personal and banking information without a permissible purpose.
Id. at 6-7.
Judge Doty dismissed the RESPA claim on the grounds that Plaintiffs had not identified any potential errors with their account; the QWR was invalid because many of the requests did not pertain to the servicing the note; Defendants had adequately responded to the QWR; and Plaintiffs failed to allege any harm or damages. Id. at 7-9. Finally, Judge Doty found that the state law claims for replevin and to set aside the foreclosure sale were not ripe for adjudication, due to the contingent nature of Plaintiffs' bankruptcy filing, and that in any event the replevin claim would fail because ...