United States District Court, E.D. Arkansas, Jonesboro Division
are a motion to dismiss filed by Wilson & Associates,
PLLC ("Wilson") (ECF No. 8) and a motion to dismiss
filed by Bank of America, N.A. ("Bank of America")
(ECF No. 15). Plaintiff has only responded to the latter.
Both motions are ripe for consideration.
Erich and Shirley Williams filed a Verified Petition for
Temporary Restraining Order in the Circuit Court of
Crittenden County, Arkansas, on May 2, 2019, seeking to stop
to a non-judicial foreclosure sale of their home from
occurring on May 6th. The action arises out of a
Plaintiffs' bankruptcy action and Plaintiffs'
allegations that Plaintiffs' current loan servicer (not
named as a party) improperly collected fees in violation of a
bankruptcy order. Bank of America removed the case to this
Court on May 17, 2019 on the basis of diversity and also federal
questions arising from Plaintiffs' citation to violations
of several federal bankruptcy court mandates as grounds for
setting aside the foreclosure of their property.
filed a motion to dismiss for failure to state a claim for
relief that is plausible on its face, relying on the familiar
standards set forth in Aschraft and
Twombly. Specifically, Wilson argues that while it
does not appear that Plaintiffs have alleged any claim
against it, to the extend certain allegations could
pertain to it, the claims would be barred by the provisions
of Ark. Code Ann. § 16-22-310(a), which provides in
relevant part that no attorney shall be civilly liable for
conduct in connection with the attorney's professional
services to persons within whom the attorney is not in
privity of contract, including attorneys appointed as part of
a non-judicial foreclosure pursuant to Ark. Code Ann. §
18-50-101, et seq. There are some exceptions, but
none that are put forth by Plaintiffs. Plaintiffs and Wilson
are not in privity of contract with each other. Wilson also
argues that it was acting in capacity as counsel and
attorney-in-fact for the bank and could only act on the
authority granted by its principal; therefore, its presence
as a party is not necessary to grant injunctive relief.
Plaintiff wholly failed to respond to this motion. After
consideration of the arguments raised therein in conjunction
with the Verified Petition for Temporary Restraining Order,
the Court finds that Wilson's motion is well taken and
will be granted.
America also filed a motion to dismiss for failure to state a
claim and lack of subject matter jurisdiction. First, Bank of
America argues that Plaintiffs have yet to file a complaint
sufficient to initiate a civil action. To the extent the
petition for temporary restraining order is read as a
complaint, it fails to allege any actionable conduct by Bank
of America or to state a claim for which relief can be
granted. Finally, Bank of America argues that since the
nonjudicial foreclosure has been cancelled, the petition is
moot and should be dismissed for lack of subject matter
Court will consider the Verified Petition for Temporary
Restraining to be a complaint. The complaint alleges that
Plaintiffs purchased the property at 1300 Baywood Circle in
West Memphis on August 14, 2009. The purchase was subject to
a deed of trust held by Pulaski Bank & Trust Company.
They filed Chapter 13 bankruptcy on July 26, 2011 and
received an order of discharge on November 20, 2018. A
bankruptcy court order was entered to the effect that
Plaintiffs remain $3,789.36 in arrears on their mortgage owed
to PennyMac Loan Services, LLC ("PennyMac") as
servicer for Bank of America. Plaintiffs allege that PennyMac
has disregarded the order of the bankruptcy court and has
included corporate advances that were in violation of the
bankruptcy orders and Rule 3002.1. The complaint concludes
with a request that the sale be cancelled "until all
proper parties are joined and are in privity of contract with
Plaintiffs." Plaintiff further ask that they be allowed
to stay in the home until a hearing can be had before this
complaint must contain "a short and plain statement of
the claim that the pleader is entitled to relief to survive a
motion to dismiss under Rule 12(b)(6) for failure to state a
claim upon which relief can be granted. Fed.R.Civ.P. 8(a)(2).
Specific facts are not required; the complaint must simply
'"give the defendant fair notice of what... the
claim is and the grounds upon which it rests.'"
Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197,
167 L.Ed.2d 1081 (2007) (quoting Bell Ail. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007)). However, the complaint "must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550
U.S. at 570, 127 S.Ct. 1955). "A pleading that offers
'labels and conclusions' or 'a formulaic
recitation of the elements of a cause of action will not do.
Id. "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." Id.
argued by Bank of America, there are simply no allegations of
wrongdoing by it, much less any that pass the
Twombly and Ashcraft standards.
Furthermore, the non-judicial sale scheduled for May 2, 2019
was cancelled. There is no other relief sought by Plaintiffs
in their pleading that they have not already received. The
issue is moot as there is no pending controversy. Cravens
v. New Century Mortg. Co., No. 4;11CV00289 SWW, 2011 WL
5085299, at *2 (E.D. Ark. Oct. 26, 2011).
conclusion, the motions to dismiss filed by Wilson &
Associates, PLLC (ECF No. 8) and Bank of America, N.A. (ECF
No. 15) are both GRANTED.
 Bank of America argues that joinder of
Wilson & Associates is improper and must be disregarded
for removal purposes, but Wilson & Associates