Poole v. GMAC Mortgage, LLC, 4:11-cv-01849

Dwayne and [co-plaintiff] Poole obtained a mortgage on July 10, 2006, and allegedly defaulted; the property was sold at a trustee’s sale in May 2011 and later conveyed by GMAC.
The Pooles filed a pro se wrongful foreclosure petition in Franklin County, Missouri (Mar. 29, 2011); GMAC removed the action to federal court and moved to dismiss.
The Pooles filed Chapter 13 bankruptcy (July 28, 2011); the bankruptcy court lifted the stay as to the foreclosure. GMAC later filed Chapter 11 (May 14, 2012), causing another automatic stay and administrative closure of the federal case until bankruptcy matters resolved.
The district court reopened the case in Nov. 2017 after GMAC represented the Chapter 11 plan had been confirmed and the automatic stay terminated, and GMAC refiled a Rule 12(b)(6) motion to dismiss (Dec. 5, 2017); the Pooles did not respond and failed to keep the court apprised of an address.
The complaint asserted multiple claims (wrongful foreclosure, FDCPA, RESPA, TILA rescission, FCBA, common-law fraud, and various other vague statutory violations) largely premised on GMAC’s alleged failure to produce an original "wet-ink" note.
The court dismissed all claims for failure to state a claim, explaining the "show me the note" theory is not a viable basis for wrongful foreclosure in Missouri and addressing statute-specific defects (standing under FDCPA, lack of RESPA damages, TILA rescission time-bar, inadequately pleaded fraud, and FCBA inapplicability).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Wrongful foreclosure	Foreclosure invalid because GMAC cannot produce original "wet-ink" note; thus lacked standing	Deed of trust contained power-of-sale; assignment and appointment of successor trustee were recorded and lawful	Dismissed — Missouri law allows nonjudicial foreclosure by power-of-sale; "show me the note" theory rejected
FDCPA	Foreclosure/collection practices violated FDCPA because of failure to produce original note	GMAC is not a "debt collector" and the note theory does not state an FDCPA claim	Dismissed — no allegation GMAC is a debt collector; claim implausible
RESPA	Servicer failed to respond properly to qualified written request	GMAC produced documents in response; plaintiffs did not plead actual damages	Dismissed — plaintiffs did not plead actual damages required under RESPA
TILA rescission	Plaintiffs seek rescission under TILA §1635 due to disclosure defects	Even if disclosures were deficient, three-year rescission window expired (loan 2006; claim filed 2011)	Dismissed — TILA rescission period expired before suit was filed
Fraud (common-law)	Various vague fraud allegations tied to failure to produce original note and other unspecified misrepresentations	Allegations lack specificity as to who, what, when, reliance, or resulting injury	Dismissed — fraud not pled with the particularity and elements required

Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleadings must state a plausible claim, not mere conclusions)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleading)
Erickson v. Pardus, 551 U.S. 89 (2007) (courts liberally construe pro se pleadings)
Zoltek Corp. v. Structural Polymer Grp., 592 F.3d 893 (8th Cir. 2010) (assess plausibility using judicial experience and common sense)
Peters v. General Serv. Bureau, Inc., 277 F.3d 1051 (8th Cir. 2002) (FDCPA prohibits deceptive or harassing collection practices)
Rand Corp. v. Yer Song Moua, 559 F.3d 842 (8th Cir. 2009) (TILA rescission standards)
Noble Sys. Corp. v. Alorica Cent., LLC, 543 F.3d 978 (8th Cir. 2008) (courts may consider public records and materials embraced by the pleadings)