Frederick A. Johnson v. The Bank of New York Mellon , 576 F. App'x 650 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-1343
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Frederick A. Johnson
lllllllllllllllllllll Plaintiff - Appellant
v.
The Bank of New York Mellon, formerly known as The Bank of New York, as
Trustee for Certificate Holders of CWMBS, Inc. CHL Mortgage Pass-Through
Trust 2006-3, Mortgage Pass-Through Certificates, Series 2006-3; Mortgage
Electronic Registration System, Inc.; MERSCORP, Inc., and also all other
persons, unknown claiming any right, title, estate, interest, or lien in the real estate
described in the complaint herein
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: July 9, 2014
Filed: August 25, 2014
[Unpublished]
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Before MURPHY, SHEPHERD, and KELLY, Circuit Judges.
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PER CURIAM.
In 2005, appellant Frederick Johnson executed a promissory note to
Countrywide Bank, N.A. secured by a real estate mortgage from Johnson to MERS1
as nominee for Countrywide. The mortgage was duly recorded in the real estate
records of Hennepin County, Minnesota. The loan was subsequently securitized into
a trust entitled Certificate Holders of CWMBS, Inc. CHL Mortgage Pass-Through
Trust 2006-3, Mortgage Pass-Through Certificates, Series 2006-3 (the “Trust”) with
the Bank of New York Mellon (“BONYM”) as trustee. On August 11, 2011, MERS
assigned the mortgage to BONYM as trustee for the Trust. On August 30, 2011, this
assignment of mortgage was recorded in the real estate records of Hennepin County.
Subsequently, BONYM instituted foreclosure proceedings against Johnson.
Johnson commenced an action in Minnesota state court against BONYM and
the Trust, seeking a declaration that the foreclosure proceedings were invalid and
seeking to quiet title to the real property. Johnson alleged that BONYM violated the
Pooling and Servicing Agreement (“PSA”) governing the securitization of the loan
and the transfer of the mortgage to the Trust. Johnson claimed that identified
assignments of the real estate mortgage were not recorded as required by the PSA and
that the failure to record assignments of the real estate mortgage bars foreclosure
pursuant to Minnesota Statute § 580.02. The action was removed to federal court,
and defendants moved to dismiss. The district court2 granted the motion to dismiss,
1
MERS is the Mortgage Electronic Registration System. “With MERS, initial
mortgage loans are recorded [in the county real estate records], fees are paid, and
MERS is listed as the mortgagee of record. When an interest in the mortgage is
transferred among MERS members, the MERS system tracks the assignments for
priority purposes. MERS at all times remains the mortgagee of record in the county
property records. The subsequent assignments are not recorded.” Brown v. Mort.
Electronic Registration Systems, Inc., 738 F.3d 926, 929 (8th Cir. 2013).
2
The Honorable David S. Doty, United States District Judge for the District of
Minnesota, adopting the report and recommendations of the Honorable Arthur J.
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concluding that the complaint’s allegations with respect to unrecorded assignments
were insufficient under Federal Rule of Civil Procedure 8 as conclusory and
speculative and that Johnson lacked standing to challenge the appellees’ compliance
with the PSA. Johnson appeals, and we affirm.
We review the district court’s grant of a motion to dismiss de novo, taking the
factual allegations in the complaint as true and affording the non-moving party all
reasonable inferences from those allegations. Owen v. Gen. Motors Corp., 533 F.3d
913, 918 (8th Cir. 2008). Rule 8 requires that a complaint present a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). In order to survive a motion to dismiss under Rule 12(b)(6), “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp.v. Twombly, 550 U.S. 544, 570 (2007)). Accordingly, at the pleading stage
a plaintiff must show that success on the merits is more than a “sheer possibility.”
Id.; see also Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393,
417 (2010) (Stevens, J., concurring in part and concurring in the judgment) (“It is a
long-recognized principle that federal courts sitting in diversity ‘apply state
substantive law and federal procedural law.’” (quoting Hanna v. Plumer, 380 U.S.
460, 465 (1965))).
In this appeal, Johnson asserts the single argument that BONYM, as trustee for
the Trust, may not institute foreclosure proceedings because not all of the
assignments of the real estate mortgage have been recorded as required by Minnesota
statute and that the PSA lists assignments which remain unrecorded. Accordingly,
he has waived his claim that foreclosure may not be instituted due to a breach of the
PSA “because the issue was not developed in his briefs as required by Federal Rule
Boylan, United States Magistrate Judge for the District of Minnesota.
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of Appellate Procedure 28(a)(9)(A).” Rotskoff v. Cooley, 438 F.3d 852, 854 (8th Cir.
2006).
We agree with the district court that Johnson’s claim is not plausible on its
face. As an initial matter, the allegation that the PSA reflects unrecorded assignments
is indeed conclusory and speculative. Assuming that Minnesota law requires that
assignments of a real estate mortgage be recorded for foreclosure to proceed, the
complaint reflects compliance in this instance as it concedes the real estate mortgage
from Johnson as mortgagor to MERS as mortgagee was assigned on August 22, 2011,
from MERS to BONYM, as trustee for the Trust. This assignment was recorded in
the real estate records of Hennepin County, Minnesota on August 30, 2011.
Accordingly, the short chain of mortgage assignments is complete, and BONYM can
show the assignment of record which assigned the real estate mortgage from MERS
(the original mortgagee) to BONYM, which permits BONYM to proceed with
foreclosure.
Accordingly, we affirm the district court’s dismissal of Johnson’s complaint.
The Appellees’ motion for sanctions is denied.
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