Bolling v. Wells Fargo Bank, N. A.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM OR ALTERNATIVELY FOR MORE DEFINITE STATEMENT

W.D. Mo.June 21, 2017

27584520v1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION RICHARD BOLLING, Plaintiff, vs. WELLS FARGO BANK, N.A., et al., Defendants. ) ) ) ) ) ) ) ) ) ) Case No. 4:17-cv-00381-ODS DEFENDANTS’ WELLS FARGO BANK, N.A. AND GOVERNMENT NATIONAL MORTGAGE ASSOCIATION’S MOTION TO DISMISS OR, ALTERNATIVELY, FOR MORE DEFINITE STATEMENT AND SUGGESTIONS IN SUPPORT Defendants Wells Fargo Bank, N.A. and Wells Fargo Bank, N.A. as Trustee for Securitized Trust Ginnie Mae Guaranteed REMIC Pass-Through 2010-068 Trust (collectively “Wells Fargo”), and Defendant Government National Mortgage Association (“Ginnie Mae”) by and through their attorneys, Lathrop Gage, LLP, hereby move the Court to dismiss Plaintiff’s Complaint in its entirety pursuant to Rule 12(b)(6) or, alternatively, for more definite statement pursuant to Rule 12(e). In support of this motion, Wells Fargo and Ginnie Mae state and allege as follows: I. INTRODUCTION Plaintiff alleges that he owns property located at 221 South Gaar St., Lone Jack, Missouri 64070 (the “Property”). (Complaint ¶ 3.) Plaintiff alleges that he pledged the Property to Wells Fargo, however, his allegations are confusing and, at times, contradictory. (Complaint ¶ 11.) It is unclear exactly what Plaintiff is alleging in his Complaint. Defendants, however, have made their best attempt to decipher the Complaint. Case 4:17-cv-00381-HFS Document 7 Filed 06/21/17 Page 1 of 17 -2- 27584520v1 Plaintiff alleges that Defendant “GNMA 2010-068” is attempting to “make an unlawful claim to legal title through a fraudulent assignment of enforcement rights” of the Deed of Trust and unlawful claim of ownership of the Property. (Complaint ¶ 11.) The remainder of paragraph 11 of Plaintiff’s Complaint makes allegations that are indecipherable. Throughout the Complaint, Plaintiff refers to exhibits, however, no exhibits were attached to Plaintiff’s Complaint. Plaintiff alleges that his home loan was included in a “1031 - Exchange.” (Complaint ¶ 13.) Plaintiff, however, fails to provide any factual support for this allegation. Plaintiff alleges that Wells Fargo unlawfully assigned, transferred, or conveyed his Note and “account debtor capacity as Accommodated Party” to “Ginnie Mae successor and successor defendants” because Wells Fargo “never negotiated the Tangible Note by operation of law for full value in accordance with all applicable law to Ginnie Mae.” (Complaint ¶¶ 16-17.) Plaintiff further alleges that Defendants cannot produce documents which demonstrate that his Deed of Trust was assigned to the GNMA 2010-068 Trust. (Complaint ¶ 18.) Plaintiff makes the conclusory allegation that Defendants cannot prove possession, assignment, or ownership of his Note or Deed of Trust and, therefore, have no claim of title or security interest in the Property. (Complaint ¶ 20.) Plaintiff asserts ten claims against Defendants for Lack of Standing/Wrongful Foreclosure, Fraud in the Concealment, Fraud in the Inducement, Unconscionable Contract, Breach of Contract, Breach of Fiduciary Duty, Quiet Title, Slander of Title, Temporary Restraining Order and Injunctive Relief, and Declaratory Relief. Plaintiff seeks “a judicial determination and declaration of its (sic) rights about the Real Property and the corresponding Tangible Note and Deed of Trust. (Complaint ¶ 21.) Plaintiff further seeks damages from Defendants, injunctive relief, and cancellation of “written instruments.” (Complaint ¶ 22.) Case 4:17-cv-00381-HFS Document 7 Filed 06/21/17 Page 2 of 17 -3- 27584520v1 Additionally, Plaintiff alleges that he was issued an uncertificated security in connection with a loan to Wells Fargo for $155,406.00 on March 29, 2010. (Complaint ¶ 25.) Plaintiff claims that Wells Fargo is an account debtor to a “26 U.S. Code § 1031 - Exchange of property held for productive use or investment.” (Complaint ¶ 26.) Plaintiff makes several other allegations regarding this purported transaction in which Wells Fargo was allegedly the debtor, however, those allegations are vague and unclear. (Complaint ¶¶ 25-32.) Plaintiff claims that an Assignment of Deed of Trust was filed with the Jackson County Recorder’s Office on August 9, 2010, and that this purported assignment was allegedly void because it occurred in violation of the terms of an unidentified trust. (Complaint ¶ 31.) Plaintiff alleges that “only the Depositor, (sic) is the rightful party that can convey the asset into the trust pursuant to investor offering documents as filed with the Securities and Exchange Commission.” (Complaint ¶ 32.) Plaintiff does not offer any facts that show he is entitled to the requested relief. Plaintiff does not allege that he borrowed money from Defendants, that he executed a Note or Deed of Trust in favor of Defendants, the date of such a transaction, the identity of his lender, or the amount of the alleged loan. Plaintiff does not allege that a foreclosure sale has taken place or the alleged date of the sale. It appears that Plaintiff is asserting the discredited “show me the note” theory in alleging that Defendants cannot prove that they have a valid security interest in the Property and the right to foreclose. Plaintiff also seems to be challenging the assignment of his Note, Defendants alleged failure to follow applicable laws pertaining to the assignment, and Defendants alleged failure to comply with certain unidentified “offering documents” filed with the Securities and Exchange Commission. Plaintiff has failed to meet the pleading standards required by Rule 8, and has offered only conclusory allegations devoid of any factual support. Plaintiff’s Complaint fails to state any Case 4:17-cv-00381-HFS Document 7 Filed 06/21/17 Page 3 of 17 -4- 27584520v1 claim against Defendants and it should be dismissed in its entirety. Alternatively, if the Court does not dismiss Plaintiff’s Complaint, Defendants respectfully request a more definite statement from Plaintiff so that Defendants may understand and respond to his allegations. II. MOTION TO DISMISS STANDARD The purpose of a motion to dismiss for failure to state a claim upon which relief can be granted is to test the legal sufficiency of the complaint. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). On a motion to dismiss, a court accepts as true all of the factual allegations in the complaint, and reviews the complaint to determine whether it shows the pleader is entitled to relief. Id.; Fed.R.Civ.P. 8(a)(2). Under Rule 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This pleading standard does not require “detailed factual allegations,” Twombly, 550 U.S. at 555, but “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation,” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). A pleading that offers labels, conclusions, a formulaic recitation of elements, or naked assertions devoid of factual enhancement does not suffice. Id. Only well-pleaded facts are accepted as true, while “[t]hreadbare recitals of the elements of a cause of action” and legal conclusions are not.” Id. A viable complaint must include “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. While a court must accept factual allegations as true, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Carton v. General Motors Acceptance Corp., 611 F.3d 451, 454 (8th Cir.2010) (internal citations omitted). Case 4:17-cv-00381-HFS Document 7 Filed 06/21/17 Page 4 of 17 -5- 27584520v1 III. Bolling Cannot State a Claim Against Defendants for Wrongful Foreclosure. Count I of Plaintiff’s Complaint attempts to state a claim against Defendants for “Lack of Standing/Wrongful Foreclosure.” Plaintiff makes the conclusory allegations that Defendants do not have the equitable right to foreclose on the Property and cannot prove to the Court that they have a valid interest in the Deed of Trust. (Complaint ¶ 35.) Plaintiff has not pled that a foreclosure proceeding is underway, nor the dates such foreclosure commenced. Instead, Plaintiff asks the Court to enjoin Defendants from foreclosing on the Property at some point in the future. A district court considering injunctive relief evaluates the movant’s likelihood of success on the merits, the threat of irreparable harm to the movant, the balance of the equities between the parties, and whether an injunction is in the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc); Powell v. Ryan, 855 F.3d 899, 902 (8th Cir. 2017) Here, Plaintiff has not pled facts which show any likelihood of success on the merits. Plaintiff’s Complaint does not allege facts which show the transaction at issue in this litigation, the date of the transaction, the real parties in interest, or whether Plaintiff is in default. Plaintiff has not pled facts which demonstrate irreparable harm, the balance of the equities, or that an injunction would serve the public interest. Certainly, allowing borrowers in default to improperly use the court system to delay a foreclosure does not justify injunctive relief and is not in the public interest. Plaintiff has not alleged facts which establish the elements necessary for the Court to award injunctive relief. Plaintiff’s claim for injunctive relief seems to be based on the “show me the note” theory, which has been uniformly rejected. It is well-settled that Missouri is one of many states that does not recognize the “show me the note” theory. Hobson v. Wells Fargo Home Mortg., 2011 WL Case 4:17-cv-00381-HFS Document 7 Filed 06/21/17 Page 5 of 17 -6- 27584520v1 3704815, at *2 (E.D. Mo. 2011 (Plaintiff’s “show me the note” theory, which posits that “only the holder of an original wet-ink signature note has the lawful power to initiate a non-judicial foreclosure” has been uniformly rejected by courts around the country.); Spence v. JPMorgan Chase Bank, N.A., 2011 WL 4733445, at *2 (W.D. Mo. 2011)(This “show me the note” theory has been uniformly rejected by courts around the country.); Jerde v. JP Morgan Chase Bank, N.A., 2013 WL 978403 (8th Cir. 2013) (Rejecting the “show me the note” theory, stating the case was “yet another in a long line of lawsuits brought by homeowners who have defaulted on their mortgages but claim that the entities asserting legal title to their mortgages do not have the authority to foreclose.”); Barnes v. Federal Home Loan Mortg. Corp, et al., 2013 WL 1314200, at *6 (2013), aff’d, 550 Fed. Appx. 340 (8th Cir. 2014) (“Missouri law contains no requirement that a note be physically present at the time of the foreclosure sale, that the successor trustee (or any other party) possess the original note to show it to the borrower at any particular time, or that the location of the note be disclosed to the borrower after he has executed it.”). Plaintiff also seems to be challenging the alleged assignment of his Note and Deed of Trust. This argument is likewise without merit. Plaintiff seems to allege that his Note was improperly assigned to a trust, however, assuming this is true, Plaintiff does not have standing to challenge whether the purported assignment of his Note conformed with the terms of the trust. (Complaint ¶¶ 31-32.) To establish standing, Plaintiff must show he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision. Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372 (8th Cir. 2016). Plaintiff has not done this. In rejecting similar claims by property owners attempting to prevent foreclosure, the Eighth Circuit found that the property owners lacked Case 4:17-cv-00381-HFS Document 7 Filed 06/21/17 Page 6 of 17 -7- 27584520v1 standing to challenge the assignment because they were not injured by the assignment and any harm to the homeowners was not fairly traceable to the alleged invalid assignment. Id. at 373. Additionally, Plaintiff cannot state a claim for wrongful foreclosure because he does not allege that a foreclosure took place. Further, Plaintiff cannot assert a claim for damages based on wrongful foreclosure because Plaintiff has not pled that there is no default on the Note and Deed of Trust. “A plaintiff asserting a wrongful foreclosure claim for damages must plead and prove that when the foreclosure proceeding was begun, there was no default on its part that would give rise to a right to foreclose.” Wivell v. Wells Fargo Bank, N.A., 2013 WL 3665529, at *3 (W.D. Mo. 2013). For all of these reasons, Count I of Plaintiff’s Complaint must be dismissed. IV. Count II of Plaintiff’s Complaint Fails to State a Claim for Fraudulent Concealment. In Count II of Plaintiff’s Complaint, he alleges that Wells Fargo “concealed the fact that they were not a Federal Reserve Depository Bank.” (Complaint ¶ 48.) Plaintiff makes many other confusing allegations in Count II of his Complaint, including that Plaintiff allegedly acted as guarantor for Wells Fargo in an unidentified transaction, that Wells Fargo concealed a third- party “Sponsor Bank warehouse lender,” and that Wells Fargo concealed the terms of unidentified securitization agreements. (Complaint ¶ 48.) Rule 9(b) imposes heightened pleading requirements for claims grounded in fraud: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud. OmegaGenesis Corp. v. Mayo Found. for Med. Educ. & Research, 851 F.3d 800, 804 (8th Cir. 2017). Conclusory allegations that a defendant’s conduct was fraudulent and deceptive are not sufficient to satisfy the rule. Drobnak v. Andersen Corp., 561 F.3d 778, 783 (8th Cir.2009). Rule 9(b)’s particularity requirement demands a higher degree of notice than that required for other claims, and is intended to enable the defendant to respond specifically and quickly to the Case 4:17-cv-00381-HFS Document 7 Filed 06/21/17 Page 7 of 17 -8- 27584520v1 potentially damaging allegations. United States ex rel. Joshi v. St. Luke’s Hosp., Inc., 441 F.3d 552, 556 (8th Cir.2006). To satisfy the particularity requirement of Rule 9(b), the complaint must plead such facts as the time, place, and content of the defendant’s false representations, as well as the details of the defendant’s fraudulent acts, including when the acts occurred, who engaged in them, and what was obtained as a result. United States ex rel. Joshi v. St. Luke’s Hosp., Inc., 441 F.3d 552, 556 (8th Cir.2006); U.S. ex rel. Raynor v. Nat’l Rural Utilities Co-op. Fin., Corp., 690 F.3d 951, 955 (8th Cir. 2012). Here, Plaintiff’s Complaint is devoid of this heightened particularity. Plaintiff’s Complaint does not contain enough facts to allow Defendants to respond to these potentially damaging allegations, nor are there sufficient facts to state a claim that is plausible on its face. Rule 9(b) requires more than such generalized and conclusory allegations. Further, Plaintiff’s fraud claim is likely barred by the five-year statute of limitations contained in Mo. Rev. Stat. 516.120. Plaintiff does not allege facts which show the date of the transaction upon which he asserts this fraud claim, however, the Complaint refers to an assignment of Plaintiff’s Deed of Trust on August 9, 2010. Assuming Plaintiff’s Note and Deed of Trust were executed prior to this purported assignment, the alleged fraud occurred more than five years ago. For all of these reasons, Count II of Plaintiff’s claim must be dismissed. V. Count III of Plaintiff’s Complaint Does Not State A Claim for Fraudulent Inducement. In Count III of Plaintiff’s Complaint, he alleges that Defendants intentionally misrepresented to him that they were entitled to exercise the power of sale provision contained in the Deed of Trust. (Complaint ¶ 58.) Plaintiff further alleges that Defendants are not the holder or owner of his Note and have no interest in the Property. Count III of Plaintiff’s Complaint fails Case 4:17-cv-00381-HFS Document 7 Filed 06/21/17 Page 8 of 17 -9- 27584520v1 to meet Rule 9(b)’s standard for pleading a fraud claim and Plaintiff does not allege sufficient facts to state a claim that is plausible on its face. Plaintiff does not allege any details regarding the alleged fraudulent inducement, including the dates of the alleged misrepresentations, the identity of the person or persons who made them, and how Plaintiff was damaged as a result. Further, Plaintiff’s allegations that Defendants are not the holder of his Note and have no right to foreclose upon the Property sound again like the discredited and previously rejected “show me the note” theory. As explained above, Plaintiff’s conclusory allegations that Defendants have no right to foreclose on the Property cannot state a claim for relief. Plaintiff does not allege sufficient facts to even identify the transaction at issue, moreover, Plaintiff does not allege that there is no default giving rise to a right to foreclose. Plaintiff’s attempts to challenge the Defendants’ holder status or interest in his Note and Deed of Trust are without merit. See Hobson, 2011 WL 3704815, at *2 (E.D. Mo. 2011). Accordingly, Count III of Plaintiff’s Complaint must be dismissed. VI. Count IV of Plaintiff’s Complaint Does Not State a Claim for Unconscionable Contract. In Count IV, Plaintiff alleges that Defendants’ actions resulted in Plaintiff being forced, tricked, and misled into parting with his property. (Complaint ¶ 66.) Plaintiff alleges that Wells Fargo failed to clarify that it was “acting solely in the capacity as Accommodated Party account debtor beneficiary for a purported loan of money.” (Complaint ¶ 70.) Plaintiff further alleges that Wells Fargo “concealed they were financially benefitting by bargaining with a third party to acquire a service release premium via wire funds transfer to table fund the purported loan at the closing using a warehouse line of credit.” (Complaint ¶ 70.) It is unclear from the Complaint exactly what claim Plaintiff is attempting to assert in Count IV. Case 4:17-cv-00381-HFS Document 7 Filed 06/21/17 Page 9 of 17 -10- 27584520v1 If Plaintiff is arguing that an alleged contract between Plaintiff and Wells Fargo should not be enforced because it is unconscionable, Plaintiff has not identified or sufficiently described such a contract. Plaintiff has not identified the specific provisions of the alleged contract that Plaintiff claims are unconscionable. Plaintiff has not provided the Court with the terms of the alleged contract in order to determine if the contract is objectively unreasonable. Plaintiff has not provided sufficient facts to state any claim against Wells Fargo based on an alleged contract. As such, Count IV of Plaintiff’s Complaint must be dismissed. VII. Count V of Plaintiff’s Complaint Does not State a Claim for Breach of Contract. Plaintiff has failed to allege the elements required to state a claim for breach of contract. A breach of contract claim includes the following essential elements: (1) the existence and terms of a contract; (2) that plaintiff performed or tendered performance pursuant to the contract; (3) breach of the contract by the defendant; and (4) damages suffered by the plaintiff. Braughton v. Esurance Ins. Co., 466 S.W.3d 1, 8 (Mo. Ct. App. 2015). Here, Plaintiff does not plead the terms of the contract upon which he bases his claim. Plaintiff does not allege that he performed pursuant to the contract. Plaintiff does allege that Wells Fargo breached the alleged contract, but Plaintiff does not provide sufficient factual allegations that would enable the Court to determine that the conduct alleged to have occurred constituted a breach of contract. Plaintiff has not cited a specific provision of the contract that he alleges Wells Fargo breached, nor has he alleged how he was damaged by Wells Fargo’s alleged breach. Further, the Court does not have to accept Plaintiff’s unsupported conclusions that “Wells Fargo was paid in full for their Accommodated capacity to the Tangible Note and Deed of Trust when it sold and relinquished its interest in Plaintiff’s real Property to Depositor.” (Complaint ¶ 76.) Plaintiff makes this confusing and Case 4:17-cv-00381-HFS Document 7 Filed 06/21/17 Page 10 of 17 -11- 27584520v1 conclusory allegation without any evidence or factual support. Plaintiff has failed to allege the elements necessary to state a breach of contract claim, and dismissal is appropriate. Further, Plaintiff’s breach of contract claim is likely barred by the five-year statute of limitations contained in Mo. Rev. Stat. 516.120. Plaintiff filed this action on March 28, 2017. Plaintiff refers to an assignment of his Deed of Trust on August 9, 2010. Accordingly, if the assignment of Plaintiff’s note is the alleged “breach,” then Plaintiff’s claim is time-barred and must be dismissed. VIII. Plaintiff Cannot State a Claim Against Defendants for Breach of Fiduciary Duty. In Count VI of his Complaint, Plaintiff claims that Wells Fargo “failed to disclose to Plaintiff that they were not the legitimate creditor but more accurately, were account debtor in the accommodated table funded 26 U.S. Code 1031 Exchange of property held for productive use or investment to GNMA 2010-068.” (Complaint ¶ 80.) Plaintiff claims that Wells Fargo “failed to meet their fiduciary duty to satisfy, release, and reconvey the Real Property Lien Deed of Trust and the beneficial security interest (personal property) therein after receiving payment for all sums represented as the service release premium.” (Complaint ¶ 81.) Plaintiff’s allegations are unclear and incoherent. Notwithstanding this, Plaintiff does not state a claim against Defendants for breach of fiduciary duty. Plaintiff does not allege the relationship between Plaintiff and Defendants that he claims creates a fiduciary duty. Plaintiff at times refers to Wells Fargo as lender, and at times as the debtor, or “accommodated party.” Plaintiff refers to himself as “accommodation party” and guarantor. Plaintiff has not sufficiently identified the basis of any alleged fiduciary relationship between himself and Defendants. Case 4:17-cv-00381-HFS Document 7 Filed 06/21/17 Page 11 of 17 -12- 27584520v1 To the extent that Plaintiff is claiming that Wells Fargo was his lender, Plaintiff cites no Missouri statute or case that creates or recognizes a fiduciary duty on the part of a lender to a borrower. In fact, under Missouri law the contractual relationship between a lender and borrower does not establish a fiduciary duty on the part of the lender. Hall v. NationsBank, 26 S.W.3d 295, 297 (Mo. Ct. App. 2000). A lender and borrower ordinarily have a non-fiduciary, arm’s length relationship. Id.; Wivell v. Wells Fargo Bank, N.A., 773 F.3d 887, 900 (8th Cir. 2014). For all of these reasons, Count VI of Plaintiff’s Complaint must be dismissed. IX. Count VII of Plaintiff’s Complaint Fails to State a Claim for Quiet Title. Under Missouri law, a suit to quiet title is a statutory action and a “means to determine the respective estates, titles, and interests of multiple people claiming an interest in land.” Robson v. Diem, 317 S.W.3d 706, 712 (Mo.Ct.App. 2010). While Mo. Rev. Stat. § 527.150 establishes the elements of a quiet title claim, federal pleading standards-Rules 8 and 12(b)(6)-are applied to Missouri substantive law to determine if the Complaint states a claim. Simms v. Nationstar Mortg., LLC, 44 F. Supp. 3d 927, 935 (E.D. Mo. 2014). To state a cause of action to quiet title, a plaintiff must allege (1) ownership in the real property, (2) that the defendant claims some title, estate or interest in the real property, and (3) that the defendant’s claim is adverse and prejudicial to the plaintiff. Id. Plaintiff must also plead facts showing that he has a superior title to the property at issue than the defendants. Id. Here, Plaintiff makes the conclusory allegation that “all Defendants are without any legal right whatsoever, and Defendants have no estate, title, lien, or interest in or to the Real Property, or any part of the Real Property.” (Complaint ¶ 87.) Plaintiff further claims that Defendants do not “hold a perfected and secured claim in the Real Property.” (Complaint ¶ 88.) Under Iqbal, Plaintiff’s conclusory assertions are not entitled to be accepted as true. Iqbal, 556 U.S. at 678. Case 4:17-cv-00381-HFS Document 7 Filed 06/21/17 Page 12 of 17 -13- 27584520v1 Further, these allegations are contradicted by Plaintiff’s allegation that he pledged the Property as collateral to Wells Fargo. (Complaint ¶ 11.) Plaintiff does not allege any facts which support his conclusory allegations. Moreover, Plaintiff’s claim that none of the Defendants have a “perfected and secured claim in the Real Property” is merely another attempt to argue the discredited “show me the note” theory. Taking Plaintiff’s allegations as true for purposes of this motion, it appears that Plaintiff claims he granted Wells Fargo a lien interest in the Property and now challenges the assignment of his Note and Deed of Trust. Plaintiff has, however, provided no factual allegations that support his claim. Plaintiff offers only conclusory allegations devoid of any factual support. Accordingly, dismissal is appropriate. X. Count VIII of Plaintiff’s Complaint Fails to State a Claim for Slander of Title. Count VIII of Plaintiff’s Complaint makes several difficult to follow allegations regarding “UCC 1 Financial Statements,” “credit swaps,” “Exchange of transferable record Smart Note personal property (payment intangible),” and “Secret Liens.” (Complaint ¶¶ 94-97.) Plaintiff alleges that the “act of recording the purported August 9, 2010 Assignment of Deed of Trust into the Official Records of the Jackson County Recorder’s Office is a communication to a third party of false statement derogatory to Plaintiff’s title made with malice causing special damages to the Plaintiff’s claim of title.” (Complaint ¶ 99.) Plaintiff’s confusing and conclusory allegations do not state a claim against Defendants for slander of title. The elements of a slander of title action are: plaintiff must have the title to some specific real property in the sense of some interest or estate in the property; the words employed by the defendant must be false; the words must be maliciously published by the defendant; and the use of the words must cause pecuniary loss or injury to the plaintiff. Arbors at Sugar Creek Case 4:17-cv-00381-HFS Document 7 Filed 06/21/17 Page 13 of 17 -14- 27584520v1 Homeowners Association v. Jefferson Bank & Trust Co., Inc., 464 S.W.3d 177 (Mo. 2015). Here, Plaintiff has offered merely labels and conclusions and no factual support for his claims. Accordingly, Plaintiff has failed to state a claim that is plausible on its face. Notwithstanding this, Plaintiff’s slander of title claim is barred by the five-year statute of limitations contained in Mo. Rev. Stat. 516.120. Plaintiff alleges that the act of allegedly recording an assignment on August 9, 2010 constituted slander of title. Plaintiff filed this action on March 28, 2017, accordingly, this claim is time-barred and must be dismissed. XI. Plaintiff is Not Entitled to Injunctive Relief. Plaintiff seeks injunctive relief in both Count I and Count IX of his Complaint. In support of Defendants’ argument that Count IX of Plaintiff’s Complaint should be dismissed, Defendants hereby reincorporate their arguments and authorities stated above regarding dismissal of Count I of the Complaint. Plaintiff has not pled facts which show any likelihood of success on the merits. Plaintiff’s Complaint does not allege facts which show the transaction at issue in this litigation, the date of the transaction, the real parties in interest, or whether Plaintiff is in default. Plaintiff has not pled facts which demonstrate irreparable harm, the balance of the equities, or that an injunction would serve the public interest. Plaintiff makes the conclusory allegation that Defendants have violated numerous federal and state statutes and have an “inability to establish a claim of right to Plaintiff’s Note or Deed of Trust.” (Complaint ¶ 104.) Plaintiff offers only conclusory allegations devoid of any factual support and dismissal is appropriate. XII. Plaintiff Cannot State a Claim for Declaratory Relief. In Count X, Plaintiff moves the Court to determine the rights, obligations, and interest of the parties regarding the Property. (Complaint ¶ 107.) Plaintiff makes the conclusory allegation that he should be the “equitable owner of the Subject Property” and asks the Court to declare that Case 4:17-cv-00381-HFS Document 7 Filed 06/21/17 Page 14 of 17 -15- 27584520v1 Defendants have no interest in the Property. (Complaint ¶ 109.) Plaintiff, however, has not alleged sufficient facts that would allow the Court to determine the status of the parties with respect to the Property. Plaintiff has not pled facts which clearly demonstrate the relationship he alleges exists between the parties to this action. Plaintiff’s Complaint does not allege facts which show the contract or transaction at issue in this litigation, the date of the transaction or contract, the parties to the contract or their capacity. Moreover, Plaintiff does not allege whether he is in default under the Note and Deed of Trust referenced in his Complaint. Plaintiff alleges that he pledged the Property to Wells Fargo, then alleges that Wells Fargo was the debtor. Plaintiff’s allegations are confusing and conclusory and do not state any claim for relief, including declaratory relief, against Defendants. Accordingly, dismissal is appropriate. XIII. Alternatively, Defendants Move for a More Definite Statement. In the event that the Court denies Defendants’ Motion to Dismiss Plaintiff’s Complaint, Defendants move the Court to order Plaintiff to provide a more definite statement of his allegations against Defendants so that Defendants can adequately respond. Federal Rule of Civil Procedure 12(e) provides that: “[i]f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading.” Plaintiff’s Complaint is confusing and unintelligible. Defendants are unable to respond to Plaintiff’s allegations without a more definite statement regarding the contract or transaction at issue in this action, the alleged relationship between the parties, and the dates of the transactions, contracts, and conduct alleged to have occurred. Plaintiff does not allege that he borrowed money from Defendants, that he executed a Note or Deed of Trust in favor of Defendants, the Case 4:17-cv-00381-HFS Document 7 Filed 06/21/17 Page 15 of 17 -16- 27584520v1 identity of his lender, or the amount of the alleged loan. Moreover, Defendants request a more definite statement of the conduct by each Defendant that Plaintiff claims was wrongful and supports his claims as well as facts regarding Plaintiff’s alleged damages. Throughout the Complaint, Plaintiff references a “§ 1031 - Exchange,” which is a provision of the Internal Revenue Code that allows investors to defer capital gains taxes when selling property. Plaintiffs allegations regarding “1031 - Exchange” are vague, ambiguous, and confusing. Plaintiff has not pled sufficient facts nor clearly articulated allegations that would allow Defendants to respond. Defendants require a more definite statement in order to adequately understand and respond to Plaintiff’s Complaint. WHEREFORE, Defendants Wells Fargo Bank, N.A., Wells Fargo Bank, N.A. as Trustee for Securitized Trust Ginnie Mae Guaranteed REMIC Pass-Through 2010-068 Trust, and Government National Mortgage Association respectfully request that the Court enter an order dismissing Plaintiff’s Complaint in its entirety and granting Defendants their costs incurred in defending this action, or, alternatively, ordering Plaintiff to provide a more definite statement of his allegations and claims against Defendants, and granting such other and further relief as the Court deems just and proper. LATHROP & GAGE LLP /s/ Jehan K. Moore Michael J. Abrams (42196) Jehan Kamil Moore (59431) 2345 Grand Boulevard, Suite 2200 Kansas City, Missouri 64108-2618 Telephone: (816) 292-2000 Telecopier: (816) 292-2001 mabrams@lathropgage.com jmoore@lathropgage.com Attorneys for Defendant Wells Fargo Case 4:17-cv-00381-HFS Document 7 Filed 06/21/17 Page 16 of 17 -17- 27584520v1 Bank, N.A., Wells Fargo Bank, N.A. as Trustee for Securitized Trust Ginnie Mae Guaranteed REMIC Pass-Through 2010- 068 Trust, and Government National Mortgage Association. CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing was electronically filed with the Court this 21st day of June, 2017, and was also served via U.S. Mail to the following: Richard Bolling 221 South Gaar St. Lone Jack, MO 64070 /s/ Jehan K. Moore Jehan K. Moore Case 4:17-cv-00381-HFS Document 7 Filed 06/21/17 Page 17 of 17