You're viewing Docket Item 25 from the case Pullar et al v. Home Loan Center, Inc. et al. View the full docket and case details.

Download this document:




Case 6:13-cv-00396-RBD-GJK Document 25 Filed 06/04/13 Page 1 of 6 PageID 885



UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

Plaintiffs,

TIMOTHY R. PULLAR and JENNIFER
A. PULLAR,



v.

HOME LOAN CENTER, INC. d/b/a
LENDING TREE LOANS; US BANK
NATIONAL ASSOCIATION, as Trustee
for RFMSI 2006-S3; and ANY AND ALL
UNKNOWN PARTIES,





Defendants.

Case No. 6:13-cv-396-Orl-37GJK






This cause is before the Court on the following:

ORDER

1.

2.

Plaintiffs’ Verified Complaint to Quiet Title (Doc. 2), filed March 11, 2013;

U.S. Bank National Association’s Motion to Dismiss Complaint to Quiet

Title (Doc. 3), filed March 11, 2013;

3.

Plaintiffss’ [sic] Objection and Opposition to Defendant’s, U.S. Bank

National Association, as Trustee for RFMSI 2006-S3, Motion to Dismiss

(Doc. 17), filed May 7, 2013; and

4.

Defendant’s Reply to Plaintiff’s [sic] Response to Defendant’s Motion to

Dismiss (Doc. 22), filed May 30, 2013.

Upon consideration, the Court hereby grants Defendant’s motion to dismiss.



Case 6:13-cv-00396-RBD-GJK Document 25 Filed 06/04/13 Page 2 of 6 PageID 886





BACKGROUND1



Plaintiffs own and reside in a house in Seminole County. (Doc. 2, ¶¶ 1–3.) In

2006, they mortgaged the property to Defendant Lending Tree Loans in exchange for a

$560,000 note secured by the property. (Doc. 2-1, pp. 5–17.) The mortgage

incorporated the note by reference. (Id. at 5; see also Doc. 3-1, p. 4.) The mortgage was

recorded. (Doc. 2, ¶ 4.)

Plaintiffs dispute that they received the $560,000 loan. (Id. ¶ 5.) They allege that

they repeatedly sent letters demanding that Lending Tree prove that it lent money to

Plaintiffs, to which Lending Tree did not respond. (Id. ¶¶ 5–6.)

In 2012, Lending Tree assigned the mortgage to Defendant U.S. Bank. (Doc. 2-3,

p. 2.) U.S. Bank has apparently initiated foreclosure on the property. (See Doc. 10.)

Plaintiffs, proceeding pro se, then filed this suit in state court to quiet their title to

the property. (Doc. 2.) The case was removed to this Court pursuant to diversity

jurisdiction. (Doc. 1.) U.S. Bank now moves to dismiss the Complaint. (Doc. 3.) Plaintiffs

responded. (Doc. 17.) U.S. Bank replied. (Doc. 22.) This matter is now ripe for the

Court’s adjudication.

STANDARDS

Federal Rule of Civil Procedure 8(a)(2) provides that a claimant must plead “a

short and plain statement of the claim.” On a motion to dismiss a complaint, the Court

limits its consideration to “the well-pleaded factual allegations.” La Grasta v. First Union

Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004). The factual allegations in the complaint



1 The following factual allegations, drawn from the Complaint, are accepted as
true for the purpose of considering the instant motion and are construed in the light
most favorable to Plaintiffs. See Castro v. Sec’y of Homeland Sec., 472 F.3d 1334,
1336 (11th Cir. 2006).



2

Case 6:13-cv-00396-RBD-GJK Document 25 Filed 06/04/13 Page 3 of 6 PageID 887




must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550



U.S. 544, 570 (2007). In making this plausibility determination, the Court must accept

the factual allegations as true; however, this “tenet . . . is inapplicable to legal

conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A pleading that offers mere

“labels and conclusions” is therefore insufficient. Twombly, 550 U.S. at 555.

DISCUSSION

To state a claim for quiet title, Plaintiffs must show that: (1) they have title to the

subject property; and (2) there is a cloud on the title. Stark v. Frayer, 67 So. 2d 237, 239

(Fla. 1953). They must also demonstrate that the cloud—that is, Defendants’ claim to

the title—is invalid. Id. Plaintiffs have not done so here. All they have demonstrated is

that there was a valid mortgage (Doc. 2-1), incorporating by reference a valid note

(Doc. 3-1), which was later validly assigned to U.S. Bank (Doc. 2-3).

While difficult to comprehend,2 the thrust of Plaintiffs’ arguments in opposition to

the motion to dismiss appears to be that: (1) the mortgage and note are invalid because

Defendants did not respond to Plaintiffs’ demand letters (Doc. 17, ¶¶ 24–25); and

(2) the assignment is invalid because securitization separated the mortgage from the

note (id. ¶¶ 40–53). Neither of these arguments is well-taken.

The allegation that Defendants did not respond to Plaintiffs’ letters demanding

that Defendants prove their claims to the property, even accepted as true, does nothing

to demonstrate that the mortgage and note are invalid. The mortgage, which Plaintiffs

attached to their Complaint, is signed by both Plaintiffs. (Doc. 2-1, p. 16.) The mortgage

incorporates by reference the note. (Id. at 5.) The note is also signed by both Plaintiffs.



2 Any arguments raised by Plaintiffs that are not addressed in this Order were

patently frivolous or unsupported.



3

Case 6:13-cv-00396-RBD-GJK Document 25 Filed 06/04/13 Page 4 of 6 PageID 888




(Doc. 3-1, p. 6.) The mortgage is recorded. (Doc. 2, ¶ 4.) Plaintiffs cite to no law



demonstrating why the failure to respond to Plaintiffs’ demand letters would invalidate a

signed, recorded mortgage. Plaintiffs’ argument is therefore both unsupported and

insupportable. See Barrios v. Regions Bank, No. 5:13-cv-29, Doc. 31, pp. 3–4 (M.D.

Fla. Mar. 29, 2013) (Conway, C.J.) (calling a similar argument “frivolous”).

Plaintiffs’ argument that securitization separated the mortgage and the note,

rendering them unenforceable, is similarly unavailing. Plaintiffs allege that the note was

transferred into the trust for which U.S. Bank is trustee for the purpose of

“securitization,” thereby making the “note holder disappear.” (Doc. 17, ¶¶ 40–53.)

Nevertheless, a transfer of the note carries with it the transfer of the mortgage. Johns v.

Gillian, 184 So. 140, 143 (Fla. 1938) (“If the note . . . be transferred without any formal

assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as

an incident to the debt, unless there be some plain and clear agreement to the contrary,

if that be the intention of the parties.”); Taylor v. Bayview Loan Servicing, LLC, 74 So.

3d 1115, 1118 (Fla. 2d DCA 2011) (“[The assignee] also became the equitable owner of

the mortgage when [the assignor] endorsed the note to [the assignee] because the

ownership of the mortgage followed the note.”). Further, the mortgage was formally

assigned to U.S. Bank in August 2012. (Doc. 2-3, p. 2.) “Any form of assignment of a

mortgage, which

transfers

the real and beneficial

interest

in

the securities

unconditionally to the assignee, will entitle him to maintain an action for foreclosure.”

Johns, 184 So. at 143. Therefore, whether and when securitization occurred is

irrelevant. U.S. Bank now holds both the note and the mortgage and thus a valid claim

to title. See Rhodes v. JPMorgan Chase Bank, N.A., No. 12-80368-CIV, 2012 WL

5411062, at *4 (S.D. Fla. Nov. 6, 2012) (noting that securitization did not deprive the



4

Case 6:13-cv-00396-RBD-GJK Document 25 Filed 06/04/13 Page 5 of 6 PageID 889




defendant loan servicer of its interest in the note and ability to foreclose).



As Plaintiffs have not sufficiently established that Defendants’ claims to title are

invalid, they have not adequately stated a quiet title claim. Thus, the motion to dismiss

is due to be granted. Furthermore, the exhibits attached and central to the Complaint

plainly contradict Plaintiffs’ conclusory legal allegations and demonstrate that Plaintiffs

are not plausibly entitled to relief on the theories set forth in the Complaint. Therefore,

this dismissal is with prejudice. See Thompson-Warren v. SunTrust Mortg., Inc.,

No. 6:13-cv-149, Doc. 17, p. 5 (M.D. Fla. Apr. 2, 2013) (Sharp, J.) (dismissing similar

pro se quiet title case with prejudice); Roder v. RH Funding Co., No. 6:12-cv-1076-Orl-

36KRS, 2012 WL 6799690, at *4–5 (M.D. Fla. Dec. 10, 2012) (Spaulding, M.J.)

(recommending dismissal with prejudice on similar facts).

CONCLUSION

Accordingly, it is hereby ORDERED AND ADJUDGED:

1.

U.S. Bank National Association’s Motion to Dismiss Complaint to Quiet

Title (Doc. 3) is GRANTED.

2.

Plaintiffs’ Verified Complaint to Quiet Title (Doc. 2) is DISMISSED WITH

PREJUDICE.

3.

The Clerk is DIRECTED to close this case.

DONE AND ORDERED in Chambers in Orlando, Florida, on June 3, 2013.










5

Case 6:13-cv-00396-RBD-GJK Document 25 Filed 06/04/13 Page 6 of 6 PageID 890






Copies:

Counsel of Record

Pro Se Parties





6