848 F. Supp. 2d 818
S.D. Ohio2012Background
- BAC holds the note and mortgage and sought money judgment/foreclosure; Moders removed the state action to federal court; BAC amended its complaint; Moders counterclaimed and James Moder filed a third-party complaint against the BANA Defendants and Carlisle; Bank of America N.A. became successor by merger to BAC; multiple motions to dismiss and for sanctions were filed by Moders, BAC, BANA, and Carlisle; BAC sought leave to respond to Holly Moder’s counterclaims; the court addressed Rule 12(b)(6) issues and timing of motions.
- The court analyzed Carlisle’s two leave-to-file motions, granting one part to accept an answer and denying the dismissal portion as untimely; it also discussed the BANA Defendants’ sequence of Rule 12 motions and vacated a hearing.
- The court denied the Moders’ sanctions requests, denied James Moder’s and Holly Moder’s motions for sanctions, and denied or granted various motions to dismiss Counts in the third-party complaint, with Counts Five, Seven, Eight, Nine, Twelve, Thirteen, and Fourteen dismissed against the BANA Defendants.
- The court granted Carlisle’s first leave-to-file motion insofar as it accepted an answer and denied the second as moot; it granted BAC leave to file a response to Holly Moder’s counterclaims and set a hearing date for BAC’s motion to dismiss.
- The court acknowledged the record’s patchy removal history but found the record sufficiently complete for decision; it ordered BAC to file a response to counterclaims by February 10, 2012.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Moders have standing to challenge BAC’s foreclosure | Moders argue BAC lacks standing and seek dismissal | BAC has standing as holder of note/mortgage | Denied; BAC held the note with an endorsement in blank and plausibly pleaded standing |
| Whether Moders’ and BAC’s Rule 12(b)(6) motions were timely and properly consolidated | Moders contend timely, proper pleadings; combined filing acceptable in some circuits | Court adheres to Rule 12 structure; piecemeal filing improper | Partially granted; Carlisle’s combined filing treated as an answer with dispute over dismissal portion; other 12(b)(6) motions evaluated as timely per order |
| Whether the BANA Defendants’ second/third Rule 12(b)(6) motions were proper | BANA argues anew on Counts One/Eleven; second/third motions should be allowed | Rule 12(g)(2) bars successive motions; should have been raised earlier | Denied; second/third motions vacated as improper under Rule 12(g)(2) |
| Whether specific Counts in the third-party complaint should be dismissed under Rule 12(b)(6) and Rule 9(b) | Counts allege OCSPA, FDCPA, RICO, fraud with varied pleadings | Many counts fail to state a claim or plead with necessary particularity | Counts Five, Seven (federal/state RICO), Eight (mail/wire fraud with Rule 9(b) deficiencies), Nine (conspiracy under §1962(d)) and Twelve–Fourteen largely dismissed; others analyzed for plausibility and standing |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility pleading standard; no bare recitals of elements suffice)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (settled that legal conclusions are not presumed true; plausibility required)
- Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674 (6th Cir. 1988) (Rule 9(b) heightened pleading for fraud requires time, place, content; notice suffices)
- In re Foreclosure Cases, 521 F. Supp. 2d 650 (N.D. Ohio 2007) (standing in foreclosure requires holder of note and mortgage at filing)
- Moon v. Harrison Piping Supply, 465 F.3d 719 (6th Cir. 2006) (RICO pattern requires at least two predicate acts)
- American Town Ctr. v. Hall 83 Assocs., 912 F.2d 104 (6th Cir. 1990) (Rule 9(b) pleading has flexible standard considering discovery)
- United States v. Cmty. Health Sys., Inc., 342 F.3d 634 (6th Cir. 2003) (Rule 9(b) requires particularity for fraud; greater detail may be required)
- Dawes v. BAC Home Loans Servicing LP, No. 1:10-cv-02637 (N.D. Ohio 2011) (cited for defamation/defamatory statements in foreclosure context)