Opinion
Civil No. 03-3203 (DWF/JGL)
April 2, 2004
David Hinz and Jennifer Hinz, Bloomington, Minnesota, for Plaintiffs Pro Se
Alan H. Maclin, Esq., and Brent R. Lindahl, Esq., Briggs and Morgan, Saint Paul, Minnesota, for Defendant, Washington Mutual Bank, F.A.
MEMORANDUM OPINION AND ORDER
Introduction
The above entitled matter came on for hearing before the undersigned United States District Judge on February 27, 2004, pursuant to Defendant Washington Mutual Bank, F.A.'s ("Washington Mutual Bank") Motion to Dismiss.
Washington Mutual bank, F.A. is improperly named in the Hinzes' Verified Complaint as Washington Mutual Home Loans. Washington Mutual Bank, F.A. is the successor by operation of law to Great Western Mortgage Corporation.
In their Complaint, Plaintiffs David and Jennifer Hinz allege a variety of claims, including fraud; breach of contract; violations of the Truth in Lending Act, as implemented at 12 C.F.R. Part 226; violations of the Federal Deposit Insurance Act, 12 U.S.C. § 1828; violations of 42 U.S.C. § 1983; commission of a criminal conspiracy under 18 U.S.C. § 241; and violations of the U.S. Constitution Art. I, § 8, cl. 1, 3, 5 and 18, and the 5th, 7th, and 14th Amendments. All of these claims arise from a contract for mortgage entered into between the Hinzes and Great Western Mortgage Corporation. For the reasons set forth below, the Court hereby grants Washington Mutual Bank's Motion to Dismiss.
Background
On or about October 24, 1996, David and Jennifer Hinz entered a contract for a mortgage loan with Great Western Mortgage Corporation. The Hinzes state in their Verified Complaint that $160,000 of mortgage debt exists on this loan. The Hinzes contend that this mortgage is void and that they are harmed under several theories. First, they contend that Washington Mutual Bank did not offer lawful consideration, namely, gold- or silver-backed currency, when the mortgage was signed, and therefore the contract is void. Second, they allege that by issuing the mortgage, Washington Mutual Bank illegally "created" wealth by charging interest. Third, the Hinzes contend that they are owed $2,160,003.79 in lost consideration. The Hinzes also seek to cancel the remaining debt on the mortgage.
Discussion
I. Motion to DismissA. Standard of Review
In deciding a motion to dismiss, the Court must assume all facts in the Complaint to be true and construe all reasonable inferences from those facts in the light most favorable to the complainant. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). The Court grants a motion to dismiss only if it is clear beyond any doubt that no relief could be granted under any set of facts consistent with the allegations in the Complaint. Id. The Court may grant a motion to dismiss on the basis of a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 326 (1989). The Court need not resolve all questions of law in a manner which favors the complainant; rather, the Court may dismiss a claim founded upon a legal theory which is "close but ultimately unavailing." Id. at 327.
1. Failure to State a Claim
The Hinzes contend that their mortgage is void because the mortgage was backed by currency that was not backed by either gold or silver. Courts in this district and throughout the United States have rejected this and similar claims. See Russ, et al., v. GMAC Mortgage, et al., No. 03-3161 (D. Minn. October 7, 2003) (Rosenbaum, J.); see also Rene v. Citibank, NA, 32 F. Supp.2d 539, 544 (E.D.N.Y. 1999); Thiel v. First Fed. Sav. Loan Ass'n, 646 F. Supp. 592, 598) (N.D. Ind. 1986) (imposing sanctions for making such claims). Because this Court also finds no merit to such claims, the Court grants Washington Mutual Bank's Motion to Dismiss.
2. Statute of Limitations
Minnesota civil actions under contract must be initiated within six years. See Minn. Stat. § 541.05 subd. 1(1) (2003); see also Jacobson v. Bd. of Trustees of the Teachers Ret. Ass'n. 627 N.W.2d 106, 110 (Minn.Ct.App. 2001). Minnesota requires fraud claims to be brought within six years. See Minn. Stat. § 541.05, subd. 1(6) (2003). The Truth In Lending Act requires claims to be asserted within one year. See 15 U.S.C. § 1640(e) (2003). Finally, claims brought pursuant to 42 U.S.C. § 1983 are barred unless the claims are brought within a six-year statute of limitations. See Hetteloid v. Indep. Sch. Dist. No. 361, 149 F. Supp.2d 863, 867 (D. Minn. 2001). All of the Hinzes' claims arise from the mortgage executed in 1996. Thus, the Court finds that all of the Hinzes' claims are time-barred by the applicable statutes of limitation.
3. Insufficiency of Service of Process
Fed.R.Civ.P. 4 places the burden on the plaintiff to properly present a summons for signature and seal by the Court, after which the plaintiff must properly serve the defendants. See Mende v. Millstone, 269 F. Supp.2d 246, 251 (S.D.N.Y. 2003). Even actual notice by a defendant of a suit does not lift the burden of the service requirement from a plaintiff. See Sieg v. Karens, 693 F.2d 803, 807 (8th Cir. 1982) (citations omitted).
The Court's records show that no summonses were ever issued by the Hinzes in this case, nor have any of the Defendants waived this requirement. Thus, the Hinzes have not properly placed any of the Defendants on notice. The Court recognizes that the Hinzes are proceeding pro se in this matter, and may therefore not fully appreciate the procedural requirements of bringing a lawsuit in federal court. However, the Court is obligated to uphold the rights and protections afforded Defendants when those Defendants are brought before this Court. Therefore, the Court grants Washington Mutual Bank's Motion to Dismiss based on the failure of the Hinzes to properly serve Washington Mutual Bank.
4. Failure to Plead Fraud Claims with Sufficient Particularity
Fed.R.Civ.P. 9(b) requires fraud claims to be stated with particularity. To be sufficiently particular, a plaintiff must provide the time, place and content of the fraudulent misrepresentations. See Fames v. Gateway 2000, Inc., 122 F.3d 539, 549-50 (8th Cir. 1995). "[C]onclusory allegations that a defendant's conduct was fraudulent and deceptive are not sufficient to satisfy the rale." See Commercial Prop. Invs., Inc. v. Quality Inns Int'l, Inc., 61 F.3d 639, 644 (8th Cir. 1995) (citing In re Flight Transp. Corp. Sec. Litig., 593 F. Supp. 612, 620 (D. Minn. 1984).
In this case, the Hinzes fail to specifically state how they were allegedly defrauded. The only alleged basis for the Hinzes' fraud claims are that gold or silver was not used to back the mortgage issued by Washington Mutual Bank or the currency issued to Washington Mutual Bank by the U.S. Comptroller. As the Court has previously discussed, the Hinzes' claims regarding the United States's monetary system are without merit. Thus, the Court grants Washington Mutual Bank's Motion to Dismiss.
For the reasons stated, IT IS HEREBY ORDERED:
1. Defendant Washington Mutual Bank's Motion to Dismiss is GRANTED.