BAC Home Loans Servicing LP v. Fall Oaks Farm LLC

BAC HOME LOANS SERVICING LP, Plaintiff,

v.FALL OAKS FARM LLC, et al., Defendants.

Case No. 2:11-cv-274

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Dated: January 24, 2013

JUDGE GREGORY L. FROST

Magistrate Judge Terence P. Kemp

OPINION AND ORDER

This matter is before the Court for consideration of a motion for judgment on the pleadings (ECF No. 78) and a motion for summary judgment (ECF No. 94), both of which were filed by Third-Party Defendant Carlisle, McNellie, Rini, Kramer & Ulrich Co., L.P.A. For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART the motion for judgment on the pleadings (ECF No. 78) and GRANTS the motion for summary judgment. (ECF No. 94.)

I. Background

This is a mortgage foreclosure case in which Bank of America N.A. ("BANA") is the holder of a promissory note related to a mortgage on property allegedly purchased by James Moder and Holly Moder.¹ BANA originally filed an action in the Hocking County Court of Common Pleas, asserting that the Moders were in default. The Moders removed the action to this Court, and the removal went unchallenged despite significant deficiencies. BANA amendedits pleading to obtain a money judgment and foreclosure on the underlying property. (ECF No. 8.) The Moders in turn filed counterclaims against BAC (ECF Nos. 19, 52), and James Moder filed a third-party complaint against Bank of America Corporation, Mortgage Electronic Registration Systems, Inc., MERSCORP Inc., Ted Cassell, and Shannon Montgomery ("the BANA Defendants"), as well as against the law firm representing BANA, Carlisle, McNellie, Rini, Kramer & Ulrich Co., L.P.A. ("Carlisle") (ECF No. 53).

Carlisle previously filed a motion for leave to file a motion to dismiss or an answer. (ECF No. 45.) This Court granted leave to plead, accepted Carlisle's filing as an answer, and denied the motion to dismiss component of that document as untimely filed. (ECF No. 60, at 5-7.) The Court also noted, however, that Carlisle remained free to raise its grounds for dismissal in a Rule 12(c) motion for judgment on the pleadings or elsewhere later in the case. (Id. at 7.) Carlisle elected to do just that and filed a motion for judgment on the pleadings on August 29, 2012. (ECF No. 78.) Carlisle has also filed a motion for summary judgment on select claims asserted in the third-party complaint. (ECF No. 94.) James Moder did not file a memorandum in opposition to either motion, both of which are ripe for disposition.

II. Discussion

A. Motion to Dismiss

1. Standard Involved

Carlisle seeks dismissal under Federal Rule of Civil Procedure 12(c), which requires that this Court review the motion in the same manner that the Court would review a motion made under Rule 12(b)(6). Ferron v. Zoomego, Inc., 276 F. App'x 473, 475 (6th Cir. 2008); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 761 (6th Cir. 2006). In order to determine whether JamesModer has asserted claims in his third-party complaint upon which this Court can grant relief, the Court must construe that pleading in his favor, accept the factual allegations contained in the pleading as true, and determine whether the factual allegations present a plausible claim. See Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007). The Supreme Court has explained, however, that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Consequently, "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.

To be considered plausible, a claim must be more than merely conceivable. Twombly, 550 U.S. at 556; Ass'n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007). What this means is that "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. The factual allegations of a pleading "must be enough to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. at 555. See also Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008).

2. Analysis

As a threshold matter, this Court must address Carlisle's disturbingly poor briefing on its Rule 12(c) motion. To place this discussion in the proper context, it is necessary to begin with the fact that the Magistrate Judge had previously ordered James Moder and Holly Moder as the removing parties to file all copies of all records and proceedings other than those that wereattached to the notice of removal. (ECF No. 50.) This was necessary because, in the course of preparing to address this litigation, both the undersigned and Magistrate Judge discovered that the state court record filed here was initially incomplete. As part of the supplemental record filings, this Court was supplied with the third-party complaint filed by James Moder. (ECF No. 53.)

After subsequently reading Carlisle's Rule 12(c) motion and its memorandum in support, however, this Court was concerned that the docket continued to fail to reflect the appropriate pleadings. What caused this concern was the fact that the Rule 12(c) briefing repeatedly addresses claims that do not exist in this litigation and repeatedly cites to "record" material that is not in the record (in other words, Carlisle pinpoint cites to pages or paragraphs in the third-party complaint and elsewhere that simply do not exist). The Court also recognized that Carlisle states in its motion for summary judgment briefing that "on April 3, 2011, Moder filed his TPC against no fewer than seven parties, including Carlisle, and asserted fifteen claims. (ECF No. 53.)" (ECF No. 94, at PAGEID # 1483.) Carlisle's citation to "ECF No. 53" matches the third-party complaint on the Court's docket, but as the time-stamp on the first page of that pleading indicates, the third-party complaint was filed in the state court on March 3, 2011, not on April 3, 2011. (ECF No. 53, at PAGEID # 796.) Additionally, the third-party complaint on the docket contains only fourteen counts, not fifteen claims as Carlisle states. (ECF No. 53 ¶¶ 1-39.) Such curious discrepancies raised the possibility that Moder had served Carlisle with an amended third-party complaint in April 2011 that had never been filed with any court.

Concerned that the docket did not include such an amended third-party complaint or some other pleading or filings-and generally confused by much of the Rule 12(c) briefingchoices-the undersigned had his law clerk contact by telephone Carlisle's counsel. Because the Magistrate Judge had already ordered the Moders to supplement the docket with all missing documents, the Moders had already been afforded the opportunity to remedy any docket error. Moreover, given the Moders' pro se status, this Court concluded that perhaps counsel could provide additional clarification.

Such clarification was not forthcoming. Counsel for Carlisle initially represented that the issues surrounding the briefing were possibly the result of an additional pleading that was not part of the federal docket, but counsel subsequently informed the law clerk that it did not appear that any such additional pleading existed. Counsel also suggested that typographical errors were involved, but scrivener's errors do not explain many of the inexplicable briefing issues discussed below. Regardless of whatever is the underlying cause of the state of the briefing-typographical errors, sloppy cutting and pasting without effective editorial supervision, gross incompetency, other unidentified factors, or a combination of all of the above-the motion practice before this Court ultimately presents less than ideal advocacy. Because Carlisle elected to stand by this briefing, the Court shall proceed to address the Rule 12(c) motion.

The Court notes that it is addressing some but not all of the briefing because Carlisle has provided this Court with many at best ineffective and at worst incomprehensible briefing provisions. Such a curious approach arguably violates the Local Civil Rules, which require that "[a]ll motions and applications tendered for filing shall be accompanied by a memorandum in support thereof which shall be a brief statement of the grounds, with citations of authorities relied upon." S. D. Ohio Civ. R. 7.2(a)(1). It unarguably violates common sense and good practice. It makes little sense to be confusing when you are telling the Court that yourentitlement to judgment is clear.

Turning to Carlisle's arguments, this Court begins with the assertion that judgment on the pleadings is warranted on the entirety of Moder's third-party claims because he lacks standing. This is perhaps not a bad argument. The BANA Defendants recently pursued this same rationale for summary judgment. But immediately after presenting this assertion, Carlisle directs this Court via its first citation to "ECF No. 49, pp. 27-28." (ECF No. 78, at PAGEID # 1082.) This is unhelpful because the forty-ninth filing on the docket is a two-page pro hac vice order filed by the Magistrate Judge.

In regard to this portion of the Rule 12(c) motion, the Court elects to address the alternative arguments for relief presented elsewhere in the Rule 12(c) briefing and in the motion for summary judgment. By this approach, the Court can avoid much of the confusion the briefing presents and not waste its time when a dispositive argument exists elsewhere in the filings before this Court. See Simpson v. Mack, No. 1:11-cv-314-HJW, 2012 WL 3028522, at *1 (S.D. Ohio July 25, 2012) ("To the extent [Defendant's] motion may be construed as a Rule 12(c)...