United States District Court, E.D. Virginia, Richmond Division
KOBI J. MULLINS, Plaintiff,
WELLS FARGO BANK, N.A., et al., Defendants.
E. Payne Senior United States District Judge.
matter is before the Court on DEFENDANT WELLS FARGO BANK,
N.A.'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT (ECF
No. 3), the MOTION FOR SUMMARY JUDGMENT filed by the
plaintiff (ECF No. 5), DEFENDANT WELLS FARGO BANK, N.A.'S
MOTION TO DEEM THE PLAINTIFF'S AMENDED COMPLAINT FILED
(ECF No. 7), and DEFENDANTS' MOTION TO STRIKE AFFIDAVIT
OF FACT (ECF No. 13). For the reasons set forth below, the
DEFENDANT WELLS FARGO BANK, N.A. 'S MOTION TO DISMISS
PLAINTIFF'S COMPLAINT (ECF No. 3) will be granted; the
MOTION FOR SUMMARY JUDGMENT (ECF No. 5) will be denied;
DEFENDANT WELLS FARGO BANK, N.A. 'S MOTION TO DEEM THE
PLAINTIFF'S AMENDED COMPLAINT FILED (ECF No. 7) will be
denied as moot; and DEFENDANTS' MOTION TO STRIKE
AFFIDAVIT OF FACT (ECF No. 13) will be granted.
plaintiff, Kobi J. Mullins, filed a document entitled
"Quiet Title Compliant" [sic] (ECF No. 1-4, pp.
13-15) in the Circuit Court of Chesterfield County to which
was attached a document entitled "AFFIDAVIT OF
FACT" (ECF No. 1-4, pp. 14-17). Together those documents
will be referred to as the "Quiet Title Complaint."
The action arises out of a promissory note as to which
Mullins is in default and a foreclosure on the mortgaged
property. Mullins attached to the Quiet Title Complaint over
100 pages of documents, a few of which pertain to the loan
and most of which are nonsensical, concocted by Mullins (such
as "Demands for Validation of Subscribed Oath of
Office" and similarly irrelevant documents) of no legal
Quiet Title Complaint names as defendants: (1) Wells Fargo
Bank, N.A. ("Wells Fargo"), the holder of the
promissory note; (2) Samuel I. White, PC ("SIWPC"),
the trustee on the Deed of Trust; (3) the law firm of
Shuttleworth, Ruloff, Swain, Haddard & Morecock (the
"Shuttleworth Firm"), as to whom no allegations are
made in the Quiet Title Complaint; and (4) Fidelity National
Title Insurance Company ("Fidelity"), which has not
been served and as to which no allegation is made in the
Quiet Title Complaint.
allegations of the Quiet Title Complaint are conclusory,
garbled, and nonsensical. Like many pro se
complaints, these statements use flowery and meaningless
phrases apparently thought by Mullins to have some legal
import, but which, in reality, serve to obscure whatever
claims are being made.
the defendants have sought to determine what they think this
matter is about (to the extent that can be discerned). To
some extent, the defendants have presented contextual
information based on their dealings with Mullins through the
course of a lengthy history of substantial defaults on his
defendants set it, Mullins seeks to quiet title to the
mortgaged property by attacking the validity of a foreclosure
sale that Wells Fargo and SIWPC initiated. In particular,
Mullins seems to claim superior right to the mortgaged
property under three theories: (1) that Wells Fargo
"split" the promissory note from the Deed of Trust,
thereby rendering the Deed of Trust null and void; (2) that
there are defects in the securitization of the note that
relieve Mullins of the obligation to repay his loan; and (3)
the so-called "show me the note" theory, arguing
that the inability of Wells Fargo to produce the original
note relieves Mullins of the obligation to pay it.
seems to agree that the defendants have accurately set out
the bases for his "quiet title" claim. Hence, the
Court will consider that to be the case.
the Quiet Title Complaint vaguely mentions a "fraudulent
scheme" (Quiet Title Compl. ¶ 3) and alludes to
"false representations" (Quiet Title Compl., Aff.
of Fact ¶ 9). However, it is not possible to discern
from the pleadings either the nature of the "fraudulent
scheme" or the substance of the "false
the Quiet Title Complaint alleges, in conclusory language,
that Wells Fargo and SIWPC violated several federal statutes,
namely the Truth in Lending Act, 15 U.S.C. § 1601, the
Fair Debt Collection Practices Act, 15 U.S.C. § 1692(e),
the Real Estate Settlement Procedures Act, 12 U.S.C. §
2605(e), the Dodd-Frank Wall Street Reform and Consumer
Protection Act, 12 U.S.C. § 5533, the Freedom of
Information Act, 5 U.S.C. § 552, the Federal Trade
Commission Act, 15 U.S.C. § 45, and the Uniform
Commercial Code §§ 9-203(b) and 9-210. The Quiet
Title Complaint is devoid of any factual allegations
regarding how those federal statutes were violated.
September 2, 2016, Mullins filed an Amended Petition To Quiet
Title To Realty (the "Amended Petition") (ECF No.
8-2, pp. 2-3) in which he proposed to add "Fannie
Mae" as a defendant. The Amended Petition, however,
makes no allegation that Fannie Mae acted either wrongfully
or unlawfully. In fact, the Amended Petition makes no factual
allegation about Fannie Mae's conduct except to state
that "Fannie May claims ownership of my land and real
estate." (ECF No. 8-2, p. 2). Nothing in the record
shows that Fannie Mae has been served.
action was timely removed to this Court on October 14, 2016
(ECF No. 1).
February 1, 2008, Mullins entered into a loan agreement with
Wells Fargo for the property located at 5346 Meadoway Road,
Chesterfield, Virginia (the "Property"). (Quiet
Title Compl. ¶ 3, Ex. A; Aff. of Fact ¶¶ 2-5)
. The loan is evidenced by a promissory note (the
"Note") in the amount of $285, 150.00. The Note is
secured by a Deed of Trust. The Note, the Deed of Trust, and
the accompanying documents collectively are referred to as
the "Loan Documents" . (Mot. to Dismiss, Ex. A, Ex.
SIWPC, on behalf of Wells Fargo, is the trustee on the Deed
to Mullins, he made mortgage payments to Wells Fargo from
April 1, 2008 through April 2016. (Quiet Title Compl., Aff.
of Fact ¶ 6) . It appears that Wells Fargo scheduled a
foreclosure sale, but the Quiet Title Complaint makes no
mention of Mull ins defaulting on his loan. See
(Quiet Title Compl. ¶ 3). Nonetheless, it can be
inferred that Mullins went into default by not making
payments required by the Loan Documents and that Wells Fargo
scheduled a foreclosure sale on the Property. That inference
is supported by all the other briefing papers. This
litigation, an apparent effort to forestall the foreclosure,
civil cases, pro se or otherwise, a motion to
dismiss under Fed.R.Civ.P. 12(b)(6) challenges the legal
sufficiency of a Complaint. Jordan v. Alternative
Resources Corp., 458 F.3d 332, 338 (4th Cir. 2006).
Courts should assume the veracity of all well-pleaded
allegations in the Complaint, and should deny a motion to
dismiss where those well-pleaded allegations state a
plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). A claim is "plausible" when
the plaintiff pleads facts sufficient to allow the court to
draw the reasonable inference that the defendant is liable
for the alleged misconduct. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) . The court should
grant a motion to dismiss, however, where the allegations are
nothing more than legal conclusions, or where they permit a
court to infer no more than a possibility of misconduct.
Iqbal, 556 U.S. at 678-79.
courts must typically construe a pro se
plaintiff's pleadings liberally, see Erickson v.
Pardus, 551 U.S. 89, 94 (2007), a court is not required
to accept a pro se plaintiff's legal conclusions
that are presented as factual allegations, Twombly,
550 U.S. at 555. Nor should accept, as facts,
"unwarranted inferences, unreasonable conclusions, or
arguments." E. Shore Mkts., Inc. v. T.D. Assocs.
Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
Civ. P. 15(a)(2) provides that "a party may amend its
pleading only with the opposing party's written consent
or the court's leave. Courts should freely give leave
when justice so requires." "Leave to amend a
pleading should be denied only when the amendment would be
prejudicial to the opposing party, there has been bad faith
on the part of the moving party, or the amendment would have
been futile." Djenasevic v. Dep't of
Justice, No. 16-6085, 2016 WL 4120669, at *1 (4th Cir.