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Lee v. Deutsche Bank National Trust Co.

United States District Court, E.D. Louisiana

March 6, 2019

JESSIE LEE
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, ET AL.

         SECTION: “J” (1)

          ORDER

          CARL J. BARBIER UNITED STATES DISTRICT JUDGE.

         Before the Court are Motions to Dismiss filed by BRMC Properties, LLC and Brian Mahon (collectively, “BRMC Defendants”) (Rec. Doc. 24) and JP Morgan Chase Bank, N.A. (“Chase”) (Rec. Doc. 35). Plaintiff filed in opposition to the motions. (Rec. Docs. 29, 67). Considering the motions, the memoranda, the record, and the law, the Court finds that the motions to dismiss should be DENIED.

         FACTS AND PROCEDURAL HISTORY

         Pro se Plaintiff Jessie Lee claims in his complaint that he suffered from a scheme perpetuated (or aided in) by the defendants to collect funds for home loans not actually due.[1] Lee's central allegation is that his home was illegally foreclosed upon in a sham foreclosure proceeding in the Civil District Court for the Parish of Orleans. It was a fraudulent foreclosure, says Lee, because the wrong party foreclosed. Lee claims that right belonged exclusively to the Long Beach Securities Corporation.[2]

         The party that filed suit against Lee for executory process was Deutsche Bank National Trust Company (“Deutsche Bank”).[3] Lee incurred the debt on March 24, 2005; it is evidenced by a promissory note and secured by a mortgage on real property located at 904 N. Rendon Street, New Orleans, Louisiana (the “Property”).[4] In the foreclosure proceeding Lee did not claim he had not defaulted on his debt. Rather, he argued that the letter giving him notice of an intent to foreclose listed the “client” as JP Morgan Chase and not Deutsche Bank.[5] The state court found this to be inconsequential because the note was endorsed in blank. This meant the “note could have been enforced by any entity in possession.”[6] See La. R.S. 10:3-202. The state court denied Lee's request for an injunction[7] and allowed the sheriff's sale to go forward on January 25, 2018. At the sale, the Property was purchased by BRMC.[8]

         After an adverse resolution of the foreclosure proceeding, Lee filed his original complaint with this Court on March 19, 2018.[9] The assigned magistrate judge allowed Plaintiff to amend his complaint by supplementing it with an exhibit on June 7, 2018.[10] Plaintiff then motioned for an extension of time in which to amend his complaint to include a jury demand.[11] The Court granted the motion, giving Plaintiff 14 days to “file a jury demand compliant” with the Federal Rules of Civil Procedure.[12]At the end of the two weeks allowed, Plaintiff motioned for an extension of time “to add additional indispensable parties.”[13] The Court once again allowed Plaintiff to amend his complaint but in so doing the Court urged “Plaintiff to cure any deficiencies of service alleged to exist by Defendants” and noted the Court would not grant another opportunity to amend “[a]bsent extraordinary circumstances.” (Rec. Doc. 44). Plaintiff filed his amended complaint on September 20, 2018. (Rec. Doc. 51).

         STANDARD OF LAW

         “A motion to dismiss pursuant to Rule 12(b)(5) turns on the legal sufficiency of the service of process.” Holly v. Metro. Transit Auth., 213 Fed.Appx. 343, 344 (5th Cir. 2007) (per curiam). If there is an objection, the party attempting service has the burden of proving service was proper. Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992).

         DISCUSSION

         I. BRMC's Motion to Dismiss for Insufficient Service of Process

         The BRMC defendants ask for dismissal pursuant to Fed. R. Civ. Proc. 12(b)(5) on the ground that they were improperly served by certified mail. For service to have been proper, it must be authorized by some other authority. The Federal Rules of Civil Procedure provide:

         Unless federal law provides otherwise, an individual--other than a minor, an incompetent person, or a person whose waiver has been filed--may be served in a judicial district of the United States by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located ...

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