Opinion
8:13-CV-72
08-28-2013
BRYAN BEHRENS, Plaintiff, v. GMAC MORTGAGE, LLC, Defendant.
MEMORANDUM AND ORDER
The plaintiff filed his complaint (filing 1) in this matter on March 4, 2013, and has now paid the final installment of his initial partial filing fee. The Court now conducts an initial review of the complaint to determine whether summary dismissal is appropriate pursuant to 28 U.S.C. § 1915(e) and the Court's independent obligation to consider its subject matter jurisdiction where there is a reason to suspect that such jurisdiction is lacking. See Hart v. United States, 630 F.3d 1085, 1089 (8th Cir. 2011); see also Bacon v. Neer, 631 F.3d 875, 877 (8th Cir. 2011).
The initial question is whether this case is moot. "Through the passage of time and the occurrence of irrevocable events, disputes may disappear so that federal courts no longer can grant effective relief. When this happens, the issue is moot and a federal court has no power to decide the issue." Lebanon Chem. Corp. v. United Farmers Plant Food Inc., 179 F.3d 1095, 1099 (8th Cir. 1999) (citation omitted); see Calderon v. Moore, 518 U.S. 149, 150 (1996). The relief sought by the plaintiff's complaint is an injunction stopping a foreclosure sale that was, according to the complaint, scheduled to occur on March 15, 2013. Filing 1 at 1. Thus, a question of mootness appears on the face of the complaint.
And the foreclosure at issue has already occurred, as evidenced by public records that the Court finds to be judicially noticeable. See Noble Sys. Corp. v. Alorica Cent., 543 F.3d 978, 982 (8th Cir. 2008); see also, Bacon, 631 F.3d at 877-78; Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005). Pottawattamie County, Iowa property records (attached to this order for the benefit of the plaintiff and any reviewing court) establish that the property has been sold and deeded to a third party. As a result, the Court can no longer grant the relief requested in the plaintiff's complaint, and this case is moot. Mootness relates to justiciability, presenting a jurisdictional bar to the Court's power to hear the case. Bacon, 631 F.3d at 877.
It is unfortunate that the sale took place despite the pre-sale filing of the plaintiff's complaint. But, it must be noted, that delay was occasioned by the plaintiff's procedural choices in filing his in forma pauperis complaint. Had the plaintiff filed this claim as a motion in the related receivership action, case no 8:8-cv-13, formal service of process and a filing fee would have been unnecessary. Nor did the plaintiff ask for a temporary restraining order, which might have been addressed ex parte. See Fed. R. Civ. P. 62(b). But when the plaintiff filed a separate complaint seeking an injunction, service of process was required. See Fed. R. Civ. P. 65(a); see generally Fed. R. Civ. P. 5. And because the plaintiff is a prisoner filing in forma pauperis, payment of the plaintiff's initial partial filing fee was also required. This case may be moot as a result, but that process was implemented by Congress and the Court is not at liberty to ignore it. See 28 U.S.C. § 1915(e).
Beyond the question of mootness, other issues appear on the face of the plaintiff's complaint. There is also a substantial question regarding the plaintiff's standing to pursue the claim. The stay upon which the plaintiff relies, see case no. 8:8-cv-13 filings 85 and 107, was not entered for the plaintiff's benefit: it was entered to protect the receivership that was directed to "take immediate possession and control" of all assets belonging to the plaintiff. See case no. 8:8-cv-13 filing 85 at 4. Given the scope of the receivership, and the sweeping authority conferred on the receiver, it is highly questionable whether the plaintiff has standing to seek enforcement of the stay with respect to receivership assets: the receiver, and not the plaintiff, is now the real party in interest with respect to the real property at issue and any proceeds from its sale. Cf. First State Bank of N. Cal. v. Bank of Am., N.T. & S.A., et al., 618 F.2d 603, 604 (9th Cir. 1980). And standing, of course, is also a fundamental element of federal court jurisdiction. U.S. v. Fast, 709 F.3d 712, 715 (8th Cir. 2013).
The Court also notes the plaintiff's citations to the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p, and the Single Family Mortgage Foreclosure Act (SFMFA), 12 U.S.C. §§ 3751-3768. But the FDCPA generally does not apply to a creditor attempting to collect its own debts (as opposed to a third-party collection agency). See 15 U.S.C. § 1692(6); see also Marshall v. Deutsche Bank Nat. Trust. Co., 445 Fed. Appx. 900, 901 (8th Cir. 2011). And the SFMFA only applies to foreclosure proceedings instituted by the Secretary of Housing and Urban Development on property held by or subject to a loan guaranteed by the Secretary. See 12 U.S.C. § 3752(10); see also Termarsch v. Homeq Servicing Co., 399 F. Supp. 2d 827, 829 (W.D. Mich. 2005). The plaintiff does not allege facts from which it could be reasonably inferred that the FDCPA or SFMFA are applicable, and the complaint thus fails to state a claim for relief under those acts.
To summarize: the primary defect in the plaintiff's complaint is that the relief it seeks can no longer be granted by the Court, so this case is moot. Second, the orders upon which the plaintiff relies, entered by this Court in the receivership action, also authorized the receiver to take possession and control of the plaintiff's assets—meaning that the plaintiff would lack standing to enforce the stay in defense of those assets, because the receiver is the real party in interest. Third, the complaint alleges no facts establishing that the defendant is a "debt collector" within the meaning of the FDCPA. And finally, the complaint alleges no facts establishing that the SFMFA is applicable to this case. The Court will require the plaintiff to file an amended complaint alleging facts that support federal court jurisdiction and stating a federal claim for relief. And the plaintiff shall be required to allege facts or file evidence with the Court establishing that this case is not moot. This matter will not proceed until the plaintiff does so.
IT IS ORDERED:
1. The plaintiff shall have until October 4, 2013, to do the following:a. file sufficient evidence with the Court, or allege facts in an amended complaint, showing that this case is not moot;2. In order to be considered, any response the plaintiff wishes to file should be received by the Court on or before October 4, 2013. The Court intends that time to include the time necessary for delivery by mail.
b. file an amended complaint establishing the plaintiff's standing to pursue his claim; and
c. file an amended complaint alleging facts supporting the applicability of the FDCPA and/or SFMFA to this case.
3. Absent effective compliance with this order, the Court may dismiss the plaintiff's complaint in part or in full without further notice.
4. The Clerk of the Court is directed to set a case management deadline in this matter with the following text: October 4, 2013: deadline for plaintiff to file amended complaint and establish that case is not moot.
5. The Court reserves the right to conduct further review of the plaintiff's claims pursuant to 28 U.S.C. § 1915(e)(2) after the plaintiff addresses the matters set forth in this Memorandum and Order.
BY THE COURT:
____________________________
John M. Gerrard
United States District Judge
Pottawattamie County- Departments ; Services - Page Title
POTTA WATTAMIE COUNTY
Foreclosures
29903 OLD LINCOLN HIGHWAY, HONEY CREEK, IOWA 51542
Notice of Sheriff's Levy and Sale
STATE OF IOWA} SS. Iowa District Court
POTTAWATTAMIE COUNTY COURT CASE # EQCV100359
POTTAWATTAMIE COUNTY
SPECIAL EXECUTION
U.S. BANK, NATIONAL ASSOCIATION AS TRUSTEE FOR RAMP 2006NC2
PLAINTIFF
VS
BRYAN S. BEHRENS AND MICHELLE D. BEHRENS
DEFENDANT (Judgment Debtor)
As a result of the judgment rendered In the above referenced court case, an execution was issued by the court to the Sheriff of this county. The execution ordered the sale of defendants) Real Property
To satisfy the judgment. The property to be sold is SEE ATTACHED LEGAL DESCRIPTION
LOCALLYKNOWN AS: 29903 OLD LINCOLN HIGHWAYHONEYCREEK, IA51542 The described property will be offered tor sale at public auction tor cash only as follows:
Date of Sale: 3/15/2013 Time of Sale: 10:00 am Place of Sale: Pottawattamie CountySheriffs Office, 1400 Big Lake Rd, Council Bluffs, Iowa, 51501
0 Homestead: Defendant is advised that if the described real estate includes the homestead (which mustnot exceed V* Acre if within a city or town plat, or, if rural, must not exceed 40 Acres), defendant must file a homestead plat with the Sheriff within ten (10) days after service of this notice, or the Sheriff will have it platted and charge the costs to this case. Property exemption: Certain money or property may be exempt. Contact your attorney promptly to review specific provisions of the law and file appropriate notice, if applicable. Redemption: NO REDEMPTION PERIOD; SIX MONTH DELAY OF SALE FROM DATE OF JUDGMENT (05/17/12) Judgment Amount: $226,238.09 Does not include any costs. Attorney PETOSA PETOSA & BOECKER (515)222-9400
Jefferey D. Danker, SHERIFF POTTAWATTAMIE COUNTY, IOWA
BACK
Parcel 072023026021435000000
Find Property Res Sales Comm/Ind Sales
7744 26 100 006
Permanent Property Address
U S BANK NA
29903 OLD LINCOLN HWY
HONEY CREEK, IA 51542
Mailing Address
D S BANK NA
C/O OCWEN-GMAC LEGACY
1100 VIRGINIA DR
FORT WASHINGTON, PA 19034
District: 072
REAL ESTATE TAX
Click here for treasurer real estate tax information.
LEGAL DESCRIPTION
ROCKFORD TWP 26-77-44 PT NE NW S NW NE COMM 400'E 1965'SLY OF CENTER SW1/4 SEC 23 TH E541' SLY775'W528.17' NLY800.85'TO POB
ASSESSED VALUE
land: $41079 | dwelling: $213061 | building: $0 | total: $254140 | year/class: 2011/R |
land: $41079 | dwelling: $213061 | building: $0 | total: $254140 | year/class: 2012/R |
land: $41079 | dwelling: $213061 | building: $0 | total: $254140 | year/class: 2013/R |
OWNERS
1 D U S BANK NA book/page: 2013/8335 D
2011 RE14 | 3449.00 FOREST | RESERVE 8.44 acres |
2012 RE14 | 3449.00 FOREST | RESERVE 8.44 acres |
2013 RE14 | 3449.00 FOREST | RESERVE 8.44 acres |
ASSESSMENT DATA
PDF: 7 MAP: ROCKFORD TWP
Sale Date | Amount | Code | Book/Page | |
05/22/2013 | 215600 | D12 | 2013/08335 | |
12/16/2005 | 260000 | D000 | 106/13428 | |
09/19/2003 | 0 | D001 | 104/07907 | multiple parcel sale |
Interior Listing: Inspected Date Listed: 02/21/2006 KK Date Reviewed: 02/21/2006 KK LAND.......411206 sqFt 9.44 acres Residence 1 of 1 -- Single-Family / Owner Occupied BUILDING....1 Story Log-Pine 6/2 Rooms Above/Below 2/0 Bedrooms Above/Below 1662 SF Base AC
Built:1986 Normal Bsmt: Full Bsmt Finish: 1000 SF Attic Finish: 1/2 Finished
FINISH......Foundation: Cone Exterior: Log Roof: Wd / Gable
Interior: Log Flooring: Carpet / Tile / Hdwd
FIREPLACE.... 1 Masonry PLUMBING....1 Full Bath 1 Water Closet 1 Shower Stall/Tub 1 Fbgls Service Sink PORCHES....112 SF IS Frame Enclosed No Bsmt DECK/PATIOS..102 SF Wood Deck-Med
136 SF Wood Deck-Low
GARAGES(1)....1 Bsmt Stall
## | Outbuilding Type / Description | Dimension | Cap/Area | Year |
1 | Barn - Flat/FR | 34 x 30 | 1020 SF | 1960 |
2 | Lean-To/FR TO #1 | 5 x 8 | 40 SF | 1960 |
Image materials not available for display. Preparer
Information
POTTAWATTAMIE COUNTY SHERIFF'S OFFICE
1400 BIG LAKE ROAD COUNCIL BLUFFS, IA 51501
Individual's Name
PETOSA PETOSA &
BOECKER
Address
1350 NW 138TH ST SUITE 100
CLIVE, IA 50325
Address Tax Statements
Individual's Name Address
OCWEN-GMAC LEGACY
1100 VIRGINIA DRIVE
FORT WASHINGTON, PA 19034
SHERIFF'S DEED
In consideration of $215,600.00 heretofore paid, I, Jefferey D. Danker, Sheriff of Pottawattamie County, Iowa, do hereby sell and convey unto U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR RAMP 2006NC2 the following described property in Pottawattamie County, Iowa:
SEE ATTACHED LEGAL DESCRIPTION
[×] See attached sheet(s) for further description Upon the expiration of the redemption period (no redemption having been made) this Deed is given upon the surrender of the Sheriffs Certificate of Purchase, the same having been issued on 05/10/2013, In Cause Number EQCV100359. Plaintiff
U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR RAMP 2006NC2
vs.
Defendant
BRYAN S. BEHRENS AND MICHELLE D. BEHRENS
[×] No Redemption
Jefferey D. Danker
Sheriff of Pottawattamie County, IA
STATE OF IOWA, POTTAWATTAMIE COUNTY On this May 22, 2013 before me, a Notary Public in the state of Iowa, personally appeared Jefferey D. Danker to me known to be the person named in and who executed the foregoing instrument, and acknowledged that (he or she) executed the same as (his or her) voluntary act and deed.
____________________________
Notary Public in the state of Iowa
From the Center of the SW1/4 of Section 23, Township 77 North, Range 44 West (corner fence post), and assuming the 11/44 Line North of the South Line of Section 23 to bear due East and West; thence East along said 11/44 Line a distance of 400.08 feet to the Easterly R.O.W. of Public Highway 183; thence South 17 degrees 11' 31" East along said R.O.W. a distance of 1675.97 feet to a point of curvature; thence Southeasterly along said R.O.W. on a 11496.16 foot radius curve to the right a distance of 289.03 feet to the point of beginning; thence East a distance of 541.0 feet; thence Southeasterly on a 12017.74 foot radius curve to the right, initial tangent of which bears South 15 degrees 03' 05" East a distance of 775.31 feet to the 11/44 Line South of the North line of Section 26, Township 77 North, Range 44 West; thence South 87 degrees 30' West along said 11/44 line a distance of 528.17 feet to the Easterly R.O.W. of Public Highway No. 183; thence Northwesterly along said R.O.W. on a 11496.16 foot radius curve to the left, initial tangent of which bears North 11 degrees 45' 36" West, a distance of 800.85 feet to the point of beginning, lying in the NW1/4 of the NE1/4 and the NE1/4 of the NW1/4 of Section 26, Township 77 North, Range 44 West of the 5th P.M., Pottawattamie County, Iowa.