The opinion of the court was delivered by: JAMES MOODY, District Judge
Pending before the Court is Defendant's Motion to Dismiss
Plaintiff's Complaint, and Brief in Support. Plaintiff's
complaint was removed from the Circuit Court of Jefferson County,
Arkansas, based upon diversity jurisdiction. Defendant's motion
to dismiss seeks dismissal pursuant to Fed.R.Civ.P. 12 (b)(6),
statutes of limitations, res judicata, collateral estoppel,
waiver, laches and failure to mitigate damages. Plaintiffs have
failed to respond to Defendant's motion to dismiss. The Court
hereby grants Defendant's motion to dismiss.
Under Arkansas law, when "testing the sufficiency of the
complaint on a motion to dismiss, all reasonable inferences must
be resolved in favor of the complaint, and the pleadings are to
be liberally construed." Shelnutt v. Laird, ___ S.W.3d ___,
2004 WL 2750314 (Ark. 2004), citing (Clayborn v. Bankers
Standard Insurance Co., 348 Ark. 557, 75 S.W.3d 174 (2002)). The
Eighth Circuit Court of Appeals held that, "a complaint should
not be dismissed unless it appears that the pleaders could prove
no set of facts in support of their claims which would entitle
them to relief." Mann v. Arkansas State Medical Bd., Slip Copy,
2005 WL 1925916 (E.D. Ark. 2005), citing (Jenkins v. McKeith,
395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed. 2d 404(1968)).
The complaint or the exhibits thereto allege the following:
The deed of trust allowed in rem actions against
Plaintiff Stephanie Cheney signed the Deed of Trust,
and was obligated as a borrower to Lender's Mortgage Co.
Plaintiff Travis Cheney signed the Loan Modification Agreement
to the Deed of Trust, which added his name as borrower on the
Deed of Trust, thus obligating himself as a borrower to Lender's
The note, which was signed by Lawrence Piper, Jr., and not the
two Plaintiffs, became in default. Defendant instituted
foreclosure on the Plaintiffs' property, which was secured by the
Deed of Trust.
Defendant exercised its options under the security
agreement/deed of trust.
Therefore, Plaintiffs' claims are dismissed for failure to
state a claim upon which relief may be granted under Fed R. Civ.
P. 12(b)(6), and the Defendant's Motion to Dismiss is GRANTED
Further, the Court finds that the Plaintiffs' claims are barred
by res judicata and collateral estoppel (for failing to litigate
this issue at the foreclosure proceedings), waiver, laches,
statutes of limitations (for failing to timely dispute the debt
as required by the Fair Debt Collection Practices Act, which
allows 30 days to act; failing to respond to the Trustee's notice
of default and intent to sell; and waiting two years to bring
suit), and failure to mitigate damages (by failing to call or
write the bank for an explanation or discussion). Finally, the
Plaintiffs' claims for embarrassment, humiliation, and depression
are dismissed because there is no allegation of willfulness,
wantonness or intentional wrong causing mental distress or
physical injury. Vandiver Food Stores, Inc. v. Insurance Co. of
North America, 909 F. Supp. 618 (E.D.Ark. 1995), citing
(Midwest Buslines, Inc. v. Johnson, 291 Ark. 304,
724 S.W.2d 453, 454 (1987)).
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