Whitmore v. Bank of New York Mellon et al

MOTION to Dismiss for Failure to State a Claim

E.D. La.March 8, 2017

1828318.1 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA WILMORE WILEY WHITMORE Plaintiff, v. BANK OF NEW YORK MELLON, et al., Defendants. § § § § § § § § § § § CIVIL ACTION NO. 2:17-cv-01265 SECTION: “I” JUDGE: Lance M. Africk MAGISTRATE JUDGE: Janis van Meerveld DEFENDANTS BANK OF AMERICA’S MOTION TO DISMISS PURSUANT TO RULE 12(B)(6) Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant Bank of America National Association (“BANA”) respectfully submits this Motion to Dismiss, with prejudice, all claims asserted against BANA in the Petition for Injunctive Relief, Declaratory Relief and Damages filed by pro se Plaintiff, Wilmore Wiley Whitmore. (R. Doc. 1). For the reasons more fully explained in the Memorandum in Support of Motion to Dismiss submitted contemporaneously herewith, and incorporated herein, all of the claims set forth in the Petition against BANA should be dismissed, with prejudice. WHEREFORE, Defendant Bank of America National Association respectfully requests that the Court grant its Motion and dismiss, with prejudice, all of the claims against BANA in the Plaintiff’s Petition on the grounds that it fails to state any claims upon which relief can be granted. Case 2:17-cv-01265-LMA-JVM Document 11 Filed 03/08/17 Page 1 of 2 1828318.1 2 Respectfully submitted, this 8th day of March, 2017. s/ Stephen W. Rider STEPHEN W. RIDER, T.A. (La. #02071) SARAH E. EDWARDS (La. #36444) McGLINCHEY STAFFORD, PLLC 601 Poydras Street, 12 th Floor New Orleans, LA 70130 Telephone: (504) 586-1200 Facsimile: (504) 910-9566 ATTORNEYS FOR DEFENDANT BANK OF AMERICA NATIONAL ASSOCIATION CERTIFICATE OF SERVICE I hereby certify that in accordance with the Eastern District of Louisiana’s electronic filing procedures, this document has been electronically filed. A Notice of Electronic Filing will be sent by the Court to all counsel of record who have consented to email notification and electronic service. This document is available for viewing and downloading from the Court’s ECF system. Service to all pros se parties and known counsel of record who have not consented to email notification and electronic service has been made via U.S. Mail, postage prepaid, this 8th day of March, 2017. s/ Stephen W. Rider STEPHEN W. RIDER Case 2:17-cv-01265-LMA-JVM Document 11 Filed 03/08/17 Page 2 of 2 1828317.1 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA WILMORE WILEY WHITMORE Plaintiff, v. BANK OF NEW YORK MELLON, et al., Defendants. § § § § § § § § § § § CIVIL ACTION NO. 2:17-cv-01265 SECTION: “I” JUDGE: Lance M. Africk MAGISTRATE JUDGE: Janis van Meerveld NOTICE OF SUBMISSION PLEASE TAKE NOTE that Defendant Bank of America National Association will submit its Rule 12(b)(6) Motion to Dismiss on Wednesday, April 5, 2017 at 9:00 A.M., before the Honorable Lance M. Africk, United States District Court Judge for the Eastern District of Louisiana, 500 Poydras Street, New Orleans, Louisiana 70130. Respectfully submitted, this 8th day of March, 2017. s/ Stephen W. Rider STEPHEN W. RIDER, T.A. (La. #02071) SARAH E. EDWARDS (La. #36444) McGLINCHEY STAFFORD, PLLC 601 Poydras Street, 12 th Floor New Orleans, LA 70130 Telephone: (504) 586-1200 Facsimile: (504) 910-9566 ATTORNEYS FOR DEFENDANT BANK OF AMERICA NATIONAL ASSOCIATION Case 2:17-cv-01265-LMA-JVM Document 11-1 Filed 03/08/17 Page 1 of 2 1828317.1 2 CERTIFICATE OF SERVICE I hereby certify that in accordance with the Eastern District of Louisiana’s electronic filing procedures, this document has been electronically filed. A Notice of Electronic Filing will be sent by the Court to all counsel of record who have consented to email notification and electronic service. This document is available for viewing and downloading from the Court’s ECF system. Service to all pros se parties and known counsel of record who have not consented to email notification and electronic service has been made via U.S. Mail, postage prepaid, this 8th day of March, 2017. s/ Stephen W. Rider STEPHEN W. RIDER Case 2:17-cv-01265-LMA-JVM Document 11-1 Filed 03/08/17 Page 2 of 2 1828242.4 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA WILMORE WILEY WHITMORE Plaintiff, v. BANK OF NEW YORK MELLON, et al., Defendants. § § § § § § § § § § § CIVIL ACTION NO. 2:17-cv-01265 SECTION: “I” JUDGE: Lance M. Africk MAGISTRATE JUDGE: Janis van Meerveld MEMORANDUM IN SUPPORT OF BANK OF AMERICA’S MOTION TO DISMISS Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant Bank of America National Association (“BANA”) respectfully submits this Motion to Dismiss, seeking dismissal, with prejudice, of all claims asserted against it in the Petition for Injunctive Relief, Declaratory Relief and Damages (the “Petition”) filed by pro se Plaintiff, Wilmore Wiley Whitmore (“Whitmore”). INTRODUCTION The Petition contends that BANA breached a short sale agreement between the parties. As a result of the alleged breach of contract, Whitmore asserts that BANA engaged in tortious conduct, including fraudulent misrepresentation. Whitmore’s claims all rest on the single contention that BANA filed a State Court foreclosure suit before a deadline set forth in the purported short sale agreement between Whitmore and BANA. For the reasons set forth below, Whitmore’s claims against BANA fail as a matter of law and should be dismissed, with prejudice: Case 2:17-cv-01265-LMA-JVM Document 11-2 Filed 03/08/17 Page 1 of 11 1828242.4 2 First, all of Whitmore’s claims are barred by res judicata based on the final, non- appealable Order to Dismiss, voluntarily filed by Whitmore in his prior State Court Injunction Action. Second, Whitmore’s breach of contract claim fails as a matter of law, because Whitmore did not timely sign and return the short sale agreement; Third, Whitmore’s tort claims are facially time-barred by Louisiana’s one-year prescriptive period. ALLEGATIONS Whitmore allegedly received a short sale letter from BANA (the “Short Sale Letter”) dated January 31, 2013, along with a proposed Short Sale Agreement.1 The Short Sale Letter notified Whitmore that he qualified to participate in the federal government’s Home Affordable Foreclosure Alternatives (HAFA) short sale program.2 The Short Sale Letter detailed the short sale process and explained that if Whitmore chose to accept the short sale option, he was required to “sign and return the agreement to us via mail or fax…by February 14, 2013.”3 The Short Sale Agreement explicitly stated that BANA “must have these documents by February 14, 2013.”4 According to the Short Sale Agreement attached to Whitmore’s Petition, he did not sign the Short Sale Agreement until March 7, 2013.5 Whitmore’s own exhibit establishes that he did not timely sign and return the Short Sale Agreement. According to Whitmore, Bank of New York Mellon (“BNY”) filed a Petition for Executory Process in State Court (the “Foreclosure Action”) on March 7, 2013.6 On March 13, 1 Exh. A to Petition. Prior to receiving this letter, Whitmore’s mortgage loan had been in default. See Exh. H to Petition (Letter dated May 9, 2013). 2 Exh. A to Petition. 3 Id. 4 Id. 5 Id. The Short Sale Agreement was also signed by Teresa G. Whitmore. 6 Petition ¶ 6(a). Case 2:17-cv-01265-LMA-JVM Document 11-2 Filed 03/08/17 Page 2 of 11 1828242.4 3 2013, the State Court entered an Order for seizure and sale of Whitmore’s property (the “Property”).7 On March 22, 2013, a Notice of Seizure of the Property was filed by the Sheriff’s Office in the 22nd Judicial District Court.8 Whitmore was served with the Notice of Seizure on March 25, 2013.9 According to Whitmore’s Petition, advertisement for the Sheriff’s Sale of the Property was set to commence on March 28, 2013.10 On July 24, 2013, Whitmore filed a Petition for Injunctive Relief in the State Court seeking to halt the Foreclosure Action (the “State Court Injunction Action”).11 In his State Court Injunction Action, as here, Whitmore alleged that BANA violated the Short Sale Agreement by prematurely foreclosing on the Property.12 Whitmore attached a copy of the Short Sale Letter and Short Sale Agreement to his State Court Injunction Action.13 Whitmore then voluntarily dismissed the State Court Injunction Action, with prejudice, on August 16, 2013 (the “Order to Dismiss”).14 RULE 12(B)(6) LEGAL STANDARD Dismissal is appropriate at the pleadings stage when a plaintiff fails “to state a claim upon which relief can be granted.”15 A plaintiff must “plead sufficient facts to state a claim to relief that is plausible on its face.”16 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that” the plaintiff is entitled 7 Exh. B to Petition. 8 Exh. C to Petition. 9 Petition ¶ 5(H). 10 Exh. E to Petition. 11 A copy of the Petition for Injunctive Relief in the State Court Injunction Action is attached hereto as Exhibit 1. 12 Exh. 1 ¶ VIII. 13 A copy of the Short Sale Letter and Short Sale Agreement are attached as an exhibit to the Petition in the State Court Injunction Action, Exhibit 1. 14 A copy of the Order to Dismiss used in the State Court Injunction Action is attached hereto as Exhibit 2. 15 Fed. R. Civ. P. 12(b)(6). 16 Ashcroft v. Iqbal, 556 U.S. 662, 687 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Case 2:17-cv-01265-LMA-JVM Document 11-2 Filed 03/08/17 Page 3 of 11 1828242.4 4 to the relief sought.17 Although all well-pleaded facts are deemed true, a court is not bound to accept as true conclusory allegations or legal conclusions masquerading as facts.18 Pro se litigants, such as Whitmore, are not exempt from the requirement that they plead sufficient facts to state a plausible claim for relief or from the principle that mere legal conclusions do not suffice to prevent dismissal.19 When considering a motion to dismiss, pursuant to Rule 12(b)(6), a court may consider: (1) “facts” stated in the complaint; (2) documents attached to the complaint; and (3) matters of which judicial notice may be taken under Federal Rule of Evidence 201.20 A court may take judicial notice of “matters of public record,”21 including court records and documents recorded in local mortgage or conveyance records.22 The court also may consider documents that are central to the claim asserted are referred to in the complaint, but are not attached by the plaintiff.23 ARGUMENT I. This Court Should Dismiss Whitmore’s Petition under Rule 12(b)(6) Because it is Barred by Res Judicata Whitmore’s claims, which are all premised on the Short Sale Agreement being valid and enforceable, are barred by res judicata, and therefore should be dismissed under Rule 12(b)(6). Res judicata is a preclusion doctrine that prevents parties from re-litigating matters that were, or could have been, raised in a previous action.24 To establish that a second action is barred under 17 Iqbal, 556 U.S. at 678. 18 Cuvillier v. Taylor, 503 F.3d 397, 410 (5th Cir. 2007); Jefferson v. Lead Indus. Ass’n, Inc., 106 F.3d 1245, 1250 (5th Cir. 1997). 19 See Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002). 20 See, e.g., R2 Invs. LDC v. Phillips, 401 F.3d 638, 640 n.2 (5th Cir. 2005); Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017–18 (5th Cir. 1996). 21 Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007). 22 See, e.g., Lamar Cnty. Elec. Co-op Ass’n v. Rayburn Country Elec. Co-op, Inc., 330 F. Supp. 2d 763, 764 n.1 (taking judicial notice of related state court foreclosure proceeding records); Creative Realty Inc. v. HD Supply Waterworks Grp. Inc., 2014 WL 970165, at *3 (W.D. La. Mar. 12, 2014) (taking judicial notice of documents filed in Louisiana mortgage and conveyance records). 23 Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004). 24 Oreck Direct, LLC v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009). Case 2:17-cv-01265-LMA-JVM Document 11-2 Filed 03/08/17 Page 4 of 11 1828242.4 5 res judicata, a party must establish: (1) the judgment in the first action is valid; (2) the judgment in the first action is final; (3) the parties involved in the valid, final judgment from the first action are the same; (4) the causes of action asserted in the second suit existed at the time of the valid, final judgment in the first action; and (5) the causes of action asserted in the second action arose out of the same transaction or occurrence that was the subject matter of the first action.25 The central inquiry is “whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action.”26 Here, the essential elements to invoke res judicata are present, and Whitmore’s claims should be dismissed. A. The Prior Judgment is Valid. Here, the Order to Dismiss from the State Court Injunction Action is a valid Judgment that was issued by the State Court, at Whitmore’s request.27 B. The Judgment is Final. Case law is clear that a final judgment is issued when, as here, the plaintiff voluntarily dismisses his claim with prejudice.28 Here, the Order to Dismiss was entered in the State Court Injunction Action on August 16, 2013. Whitmore filed this separate lawsuit more than three years after the Order to Dismiss became final. C. The Parties are the Same. There must be an “identity of parties” to invoke res judicata.29 Identity of parties does not mean the parties must be the same physical or material parties.30 For purposes of res 25 La. Rev. Stat. § 13:4231; Chevron U.S.A., Inc. v. Louisiana, 07-2469 (La. 9/8/08), 993 So. 2d 187, 194. When a state court renders a final judgment, a federal court must look to the preclusion law of the state in which the judgment was rendered, which in this case is Louisiana. In re Keaty, 397 F.3d 264, 270 (5th Cir. 2005). 26 Chevron U.S.A., 993 So. 2d at 194. 27 See Exh. 2. 28 See, e.g., Buck v. Deutsche Bank Nat. Trust Co., No. CIV.A. 05-2986, 2006 WL 1968863, at *3 (E.D. La. July 12, 2006) (plaintiff’s voluntary dismissal of her state court action, with prejudice, resulted in a final judgment); see also Shields v. Allstate Ins. Co., No. CIV.A. 08-2573, 2008 WL 3884326, at *2 (E.D. La. Aug. 18, 2008) (same). 29 Burguieres v. Pollingue, 02-1385 (La. 2/25/03), 843 So. 2d 1049, 1054. Case 2:17-cv-01265-LMA-JVM Document 11-2 Filed 03/08/17 Page 5 of 11 1828242.4 6 judicata, “there exists an identity of parties whenever the same parties, their successors, or others appear, as long as they share the same quality as the parties or there is privity between the parties.”31 “[A] ‘privy’ is one who, after the commencement of the action, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, purchase or assignment.”32 Here, Whitmore and BNY were parties to the State Court Injunction Action. Whitmore alleges that BANA serviced Whitmore’s loan for BNY.33 As BNY’s loan servicer, BANA is in privity with BNY. Consequently, the parties involved in the State Court Injunction Action, which resulted in the final Order to Dismiss, are the same parties before the Court in Whitmore’s Petition. D. The Causes of Action Existed At the Time of Final Judgment. The causes of action asserted in this lawsuit all existed at the time the Order to Dismiss was entered in the State Court Injunction Action. Whitmore asserted all of his claims in State Court, yet chose to voluntarily dismiss that case, with prejudice.34 Whitmore cannot now reassert those previously dismissed causes of action in this Court when he has already voluntarily dismissed them, with prejudice, in the State Court Injunction Action.35 30 United Gen. Title Ins. Co. v. Casey Title, Ltd., 01-600 (La. App. 5th Cir. 10/30/01), 800 So. 2d 1061, 1067. 31 Smith v. Parish of Jefferson, 04-860 (La. App. 5th Cir. 12/28/04), 889 So. 2d 1284, 1287. 32 P. Charles Calahan, APLC v. Scottsdale Ins. Co., 05-0098 (La. App. 3rd Cir. 6/1/05), 903 So. 2d 1251, 1259; see also Taylor v. Sturgell, 553 U.S. 880, 894 (2008) (“[N]onparty preclusion may be justified based on a variety of pre- existing substantive legal relationships between the person to be bound and a party to the judgment. Qualifying relationships include, but are not limited to, preceding and succeeding owners of property . . . and assignee and assignor.”). 33 See, Petition ¶¶ 5(A) and (O), Exh. A to Petition. 34 See Exhs. 1: Petition for Injunctive Relief in the State Court Injunction Action; and 2, Order to Dismiss. 35 If Whitmore’s claims are not barred by res judicata, then they are certainly barred by collateral estoppel. This doctrine precludes relitigation of issues that were a necessary part of, and actually were decided in connection with, a prior judgment. Matter of Lewisville Properties, Inc., 849 F.2d 946, 949 (5th Cir. 1988). Unlike res judicata, Louisiana law does not require that there be a mutuality of parties for collateral estoppel to apply. See, e.g., Smith v. Parish of Jefferson, 2004-CA-860, (La. App. 5 Cir. 2004); 889 So. 2d 1284, 1287; Lastie v. Warden, 611 So. 2d 721 (La. App. 4 Cir. 1992). Case 2:17-cv-01265-LMA-JVM Document 11-2 Filed 03/08/17 Page 6 of 11 1828242.4 7 E. The Causes of Action Arise Out of the State Court Injunction Action. Whitmore’s claims in this case arise out of the same transactions and occurrences that were the subject matter of the State Court Injunction Action; namely, the alleged “breach” of the Short Sale Agreement. Accordingly, Whitmore’s claims are precluded by the final Order to Dismiss and may not be re-litigated in this Court. II. This Court Should Dismiss the Petition Because there was No Short Sale Contract between Whitmore and BANA Louisiana law requires three elements to establish a breach of contract: “(1) the obligor’s undertaking of an obligation to perform; (2) that the obligor failed to perform the obligation (i.e., breach); and (3) that the breach resulted in damages to the obligee.”36 “The burden of proof in an action for breach of contract is on the party claiming rights under the contract.”37 To establish a breach of contract claim, Whitmore must prove, by a preponderance of the evidence, an identifiable contractual promise that BANA failed to honor.38 Whitmore must also establish damages caused by the alleged breach of BANA's contractual promises.39 “A contract is formed in Louisiana by the consent of the parties established through offer and acceptance.”40 There must also be a “meeting of the minds” between the parties to make a contract enforceable.41 When the parties have contemplated a certain form for acceptance, it is 36 Warren v. Geller, 924 F. Supp. 2d .13, 724 (E.D. La. 2013) (citations omitted); see also Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 2014-2592 (La. 12/8/15), 193 So. 3d 1110, 1113. 37 Bond v. Allemand, 632 So.2d 326,329 (La. App. 1st Cir. 1993). 38 See Louque v. Allstate Ins. Co., 314 F.3d 776, 782 (5th Cir. 2002); Miller v. Loyola Univ. of New Orleans, 02- 0158 (La. App. 4 Cir. 9/30/02); 829 So.2d 1057, 1062. 39 See Bynog v. Adley, 406 So.2d 653 (La. App. 2 Cir. 1981). 40 Express Lien, Inc. v. Nationwide Notice, Inc., No. CV 16-2926, 2016 WL 7097382, at *4 (E.D. La. Dec. 5, 2016) (citing La. Civ. Code Ann. art. 1927). 41 Id.; see also Read v. Willwoods Cmty., 2014-1475, p. 5 (La. 3/17/15); 165 So. 3d. 883, 887. Case 2:17-cv-01265-LMA-JVM Document 11-2 Filed 03/08/17 Page 7 of 11 1828242.4 8 presumed that the parties did not intend to bind themselves in until the contract is executed in that form.42 According to the exhibits attached to Whitmore’s Petition, the Short Sale Agreement was conditioned upon Whitmore signing and returning the Short Sale Agreement to BANA by February 14, 2013.43 The Short Sale Letter provided for the following condition for acceptance and contract formation: If you [Whitmore] agree to the terms of the agreement and want to proceed with a HAFA short sale, you must sign and return the agreement to us via mail or fax to 1.888.649.6677 by February 14, 2013.44 The Short Sale Agreement specifically stated that “[w]e must have these documents by February 14, 2013”.45 Whitmore does not allege that he signed and returned the Short Sale Agreement to BANA by February 14, 2013. Whitmore could not allege that he timely accepted the offer because the Short Sale Agreement attached to Whitmore’s Petition was not signed by Whitmore (or his real estate agent) until March 7, 2013, approximately three weeks after the signing deadline.46 Whitmore simply failed to timely accept the Short Sale Agreement. As a result, Whitmore cannot show that BANA had a contractual duty to refrain from foreclosing before May 31, 2013. Without a valid contract, BANA cannot be liable for breaching the contract, as a matter of law. All of Whitmore’s claims are predicated on the existence of a valid Short Sale Agreement. However, no such agreement ever existed. No contract was established between the 42 La. Civ. Code Ann. art. 1947; see, e.g., Baldwin v. Bass, 28,984 (La. App. 2 Cir. 12/11/96), 685 So. 2d 436, 439, writ denied, 97-0111 (La. 3/7/97), 690 So. 2d 20 (citing La. Civ. Code Ann. art. 1947). 43 Exh. A to Petition. 44 Exh. A to Petition (emphasis added). 45 Id. 46 Exh. A to Petition. Case 2:17-cv-01265-LMA-JVM Document 11-2 Filed 03/08/17 Page 8 of 11 1828242.4 9 parties because Whitmore failed to timely sign and return the Short Sale Agreement. As a result, Whitmore’s claims based on breach of the alleged Short Sale Agreement must be dismissed. III. This Court Should Dismiss the Tort Claims as Facially Prescribed A. Governing Legal Standard Civil Code Article 3447 states that “liberative prescription is a mode of barring actions as a result of inaction for a period of time.”47 The party urging the exception of prescription ordinarily bears the burden of proof.48 However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to prove a suspension or interruption of the applicable prescriptive period.49 Where no evidence is introduced to support or controvert an exception of prescription, the court must decide the exception upon the face of the petition, accepting all factual allegations as true.50 B. Argument The Petition asserts tort claims against BANA for “fraudulent misrepresentation” and acts of “bad faith and deception,” including false statements that resulted in the commencement of the Foreclosure Action.51 Any such tort claims are subject to a one-year liberative prescriptive period.52 Here, Whitmore did not file his tort claims against BANA within the one-year prescriptive period under Civil Code Article 3492. In his Petition, Whitmore claims that the Defendants prematurely “instituted a foreclosure against plaintiff based upon fraudulent 47 La. Civ. Code art. 3447. 48 Hogg v. Chevron, USA, 09-2632 (La. 7/6/10), 45 So. 3d 991, 998. 49 Campo v. Correa, 01-2707 (La. 6/21/02), 828 So. 2d 502, 508. 50 Duckworth v. Louisiana Farm Bureau Mut. Ins. Co., 11-2835 (La. 11/2/12), 125 So. 3d 1057, 1072. 51 Petition ¶ 6. See La. Civ. Code art. 2315 (“Every act of man that causes damage to another obliges him by whose fault it happened to repair it.”). 52 La. Civ. Code art. 3492; see also Southern v. Bank One of Louisiana, N.A., 32,105 (La. App. 2 Cir. 8/18/99), 740 So. 2d 775, 779 (claims for damage caused through fraud and wrongful conduct are allegations generally thought of as sounding in tort). Case 2:17-cv-01265-LMA-JVM Document 11-2 Filed 03/08/17 Page 9 of 11 1828242.4 10 misrepresentation of material facts.”53 Under these allegations, Whitmore’s damages, vis-à-vis the Foreclosure Action, arise exclusively from the filing of the Foreclosure Action against the Property and the resulting advertisement of the possible Sheriff’s Sale of Whitmore’s Property.54 Article 3492’s one-year prescriptive period began on either, March 7, 2013 (the date the Foreclosure Action was filed), or March 28, 2013 (the date Whitmore alleges the Sheriff’s Sale advertisements began).55 Whitmore’s Petition admits that he was contemporaneously well aware of the facts upon which the tort claims are based. Whitmore was admittedly served with the foreclosure suit on March 25, 2013.56 Whitmore contends that he often communicated with BANA between March and July of 2013 about his foreclosure disputes.57 Whitmore filed his State Court Injunction Action on July 24, 2013.58 Whitmore, however, did not file this lawsuit within one year of these events. Instead, he waited until January 30, 2017 to file this Petition, which was almost three years too late. Whitmore’s tort claims against BANA are facially prescribed, and should be dismissed.59 CONCLUSION Whitmore has pled his “best case” and cannot cure the fatal pleading deficiencies enumerated above.60 Accordingly, Defendant BANA respectfully requests that the Court grant its Motion to Dismiss all claims asserted against BANA, with prejudice. 53 Petition ¶ 6(2). 54 Petition ¶ (6)(1). 55 Exh. E to Petition. 56 See Petition ¶ 5(H). 57 See Petition ¶ 5(I-M). 58 See Petition ¶ 5(K). 59 See Pickett v. Willis-Knighton Pierremont Health Ctr., 43,692 (La. App. 2nd Cir. 11/5/08), 998 So. 2d 777, 779 (A claim is facially prescribed where the “petition facially shows that the prescriptive period has expired.”). 60 Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009). Case 2:17-cv-01265-LMA-JVM Document 11-2 Filed 03/08/17 Page 10 of 11 1828242.4 11 Respectfully submitted, this 8th day of March, 2017. s/ Stephen W. Rider STEPHEN W. RIDER, T.A. (La. #02071) SARAH E. EDWARDS (La. #36444) McGLINCHEY STAFFORD, PLLC 601 Poydras Street, 12 th Floor New Orleans, LA 70130 Telephone: (504) 586-1200 Facsimile: (504) 910-9566 ATTORNEYS FOR DEFENDANT BANK OF AMERICA NATIONAL ASSOCIATION CERTIFICATE OF SERVICE I hereby certify that in accordance with the Eastern District of Louisiana’s electronic filing procedures, this document has been electronically filed. A Notice of Electronic Filing will be sent by the Court to all counsel of record who have consented to email notification and electronic service. This document is available for viewing and downloading from the Court’s ECF system. Service to all pro se parties and known counsel of record who have not consented to email notification and electronic service has been made via U.S. Mail, postage prepaid, this 8th day of March, 2017. s/ Stephen W. Rider STEPHEN W. RIDER Case 2:17-cv-01265-LMA-JVM Document 11-2 Filed 03/08/17 Page 11 of 11 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 1 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 2 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 3 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 4 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 5 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 6 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 7 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 8 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 9 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 10 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 11 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 12 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 13 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 14 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 15 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 16 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 17 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 18 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 19 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 20 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 21 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 22 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 23 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 24 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 25 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 26 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 27 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 28 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-3 Filed 03/08/17 Page 29 of 29 Case 2:17-cv-01265-LMA-JVM Document 11-4 Filed 03/08/17 Page 1 of 1