United States District Court, D. Minnesota
Michelle A. Baker, Plaintiff,
CitiMortgage, Inc.; and Christian Bank & Trust, as Trustee for Securitized Trust Citigroup Mortgage Loan Trust Inc 2015-PS1 Trst, Mortgage Electronic Registration System “MERS”; Defendants.
Michelle A. Baker, plaintiff
Christopher Steven Comstock, Joseph Martin Callaghan, Lucia
Nale, and Thomas Vangel Panoff, Mayer Brown LLP; Cameron A.
Lallier and Thomas W. Pahl, Foley & Mansfield, PLLP;
counsel for defendant CitiMortgage Inc.
REPORT AND RECOMMENDATION
KATHERINE MENENDEZ, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the motion to dismiss the
Complaint filed by the Defendants CitiMortgage, Inc., and
Mortgage Electronic Registration System, Inc.
(“MERS”), pursuant to Federal Rule of Civil
Procedure 12(b)(6). [Defs.' Mot., ECF No. 20.] In the
Complaint, the Plaintiff, Michelle A. Baker, who is appearing
pro se, asserts several claims against the
Defendants based on allegedly wrongful conduct in connection
with the securitization of a mortgage loan Ms. Baker received
for the purchase of her home. [Compl., ECF No. 1-1.] Based on
the facts alleged in the complaint, the Defendants'
motion, Ms. Baker's response and on the entire record of
this proceeding, the Court concludes that Ms. Baker has
failed to state a claim upon which relief can be granted and
this action should be dismissed.
purposes of considering the Defendants' motion to
dismiss, the Court must take all the factual allegations in
the Complaint to be true. Morton v. Becker, 793 F.3d
185, 187 (8th Cir. 1986). However, the Court is not required
to accept as true any wholly conclusory statements,
Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d
799, 805 (8th Cir. 1999), or legal conclusions drawn from the
facts alleged, Westcott v. City of Omaha, 901 F.2d
1486, 1488 (8th Cir. 1990). The Court may also consider
certain matters in the record that are attached to or
embraced by the Complaint. See Porous Media Corp. v. Pall
Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (the court
considering a motion to dismiss for failure to state a claim
may consider materials that are part of the public record as
well as materials necessarily embraced by the pleadings).
Ms. Baker is representing herself in this litigation, and as
such, her pleading is entitled to a liberal construction.
Though this does not permit the Court to add factual
allegations that are not included, it means that the Court
construes the Complaint “in a way that permits the
layperson's claim to be considered within the proper
legal framework.” Solomon v. Petray, 795 F.3d
777, 787 (8th Cir. 2015) (citing Stone v. Harry, 364
F.3d 912, 914 (8th Cir. 2004)).
that Ms. Baker is not a trained lawyer, the Court notes that
the Complaint contains numerous conclusory statements, and
sections that are difficult to follow. She also uses a host
of legal jargon that lacks a discernible and clear meaning.
These features of the Complaint make it challenging to
understand the nature of Ms. Baker's claims. And
unfortunately, her response to the motion to dismiss [ECF No.
30], restates the same sort of arguments and conclusory
statements that characterize the Complaint without engaging
with the legal arguments raised by Defendants. Nonetheless,
the Court has endeavored to read Ms. Baker's Complaint in
the best possible light.
Baker owns real property in Andover, Minnesota. [Compl.
¶ 3.] On March 3, 2010, she obtained financing for the
purchase of the home through a loan from CitiMortgage.
[See Id. ¶¶ 11, 15-16, 8(2) (referring to a
“Tangible Note” regarding the mortgage loan at
issue); see also id., Ex. A ¶ 6; Promissory
Note, Defs.' Ex. 1, ECF No. 23-1.] The loan was secured
with a mortgage, which made MERS the nominee for
CitiMortgage, and Ms. Baker is listed as the mortgagor.
[Mortgage, Defs.' Ex. 2, ECF No. 23-2.]
October 28, 2011, a Notice of Default was filed with the
Anoka County Recorder's Office as ins#
2011.2025249007.” [Compl. ¶ 38.] Ms. Baker alleges
that the same day “MERS recorded an Assignment of
Warranty Deed, ” which was “signed by Brenda
Enriquez as Assistant Secretary for MERS.”
[Id. ¶¶ 34-35.] Ms. Baker asserts that Ms.
Enriquez “was not employed by MERS.”
[Id. ¶ 36.] Three Notices of Sale were also
recorded on May 9, 2012; July 16, 2015; and November 22,
2016. [Id. ¶ 39.]
Baker makes several allegations concerning 26 U.S.C. §
1031. She alleges that she “was issued an
Uncertificated Security to execute in the capacity of
(Accommodation Party) to a Tangible Note Bill of Exchange on
March 3, 2010 regarding a purported loan to (Accommodated
Party) CITIMORTGAGE, INC for $154, 849.00.” [Compl.
¶ 29.] CitiMortgage, she asserts, “is an account
debtor Accommodated Party to a 26 U.S. Code § 1031 -
Exchange of property held for productive use or
investment.” [Id. ¶ 30.] As part of this
exchange, CitiMortgage “deployed MERS as an electronic
agent under the Constructive Warranty Deed as
nominee/beneficiary. . . .” [Id. ¶ 18.]
However, on information and belief, Ms. Baker asserts that
“MERS only tracks and updates ownership of the Payment
Intangible registered with the MERS database software
system[, but] MERS cannot transfer the beneficial right to
the Tangible Accommodated Note instrument. . . .”
[Id.] She asserts that MERS “does not have the
requisite title [or] perfected security interest . . . to
proceed in a foreclosure” of the real property at
issue. [Id. ¶ 20.]
Baker further alleges that CitiMortgage improperly
securitized the mortgage loan at issue. She asserts that
CitiMortgage sold the loan to CMLT 2015-PS1 Trust. [Compl.
¶ 29(2).] CitiMortgage allegedly assigned or transferred
a security interest in the property to a Sponsor of the CMLT
2015-PS1 trust before the trust's closing date.
[Id. ¶ 16.] CitiMortgage allegedly did not
receive full value in exchange for securitization of the
loan, but “delivered a converted . . . unsecured
Tangible Note as ‘order paper' to Sponsor for
Accommodated Party services rendered associated to
originating the exchange transaction. . . .”
[Id. ¶ 17.]
Baker also alleges that she “hired CERTFIED FORENSIC
LOAN AUDITORS, LLC, out of Los Angeles, CA to perform a
Forensic Chain of Title Securitization Analysis
(“the Audit”) completed by a court qualified
expert to verify” her claims and that her loan was
securitized. [Compl. ¶ 24.] She states that “[t]he
results of the Audit clearly show that Plaintiff's Note
and Security Deed was never transferred[, but instead, ] was
. . . pooled, sold, transferred with other loans and
mortgages.” [Id. ¶ 25.] She asserts that
this is problematic because the Note and the Mortgage cannot
be separated. [Id. ¶¶ 26-27.]
these allegations, Ms. Baker asserts the following claims:
(1) “Lack of Standing/Wrongful Foreclosure, ”
[Compl. ¶¶ 2(2)-15(2)];
(2) “Fraud in the Concealment, ” [id.
(3) “Fraud in the Inducement, ” [id.
(4) “Unconscionable Contract, ” [id.
(5) “Breach of Contract, ” [id.
(6) “Breach of Fiduciary Duty, ” [id.
(7) “Quiet Title, ” [id. ¶¶
(8) “Slander of Title, ” [id.
(9) “Temporary Restraining Order and For Injunctive
Relief, ” [id. ...