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Young v. PNC Bank, N. A.

United States District Court, N.D. Florida, Pensacola Division

January 29, 2018

DAVID A. YOUNG, Plaintiff,
v.
PNC BANK, N.A., Defendant.

          REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE

         This cause is before the court upon a Motion to Dismiss (ECF No. 16) filed by Defendant PNC BANK, N.A. (“PNC”). Plaintiff has filed a response (ECF No. 18). Additionally, Plaintiff filed a “Motion for Default Summary Judgment . . .” (ECF No. 13), to which Defendant has responded (ECF No. 21). Plaintiff subsequently filed an “Objection” to Defendant's response (ECF No. 24), and he has also filed an Affidavit (ECF No. 12) and a “Motion for Compensation/Damage Amount Change” (ECF No. 17). The court has considered all the above filings in recommending a ruling on Defendant's Motion to Dismiss.

         Dismissals for failure to state a claim are governed by Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). The allegations of the complaint are taken as true and are construed in the light most favorable to Plaintiff. Davis v. Monroe County Bd. of Educ., 120 F.3d 1390, 1393 (11th Cir. 1997). To survive the motion to dismiss, “a 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, 1949 (2009) (quotation and citation omitted). A claim is plausible on its face where “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). Plausibility means “more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (quotation and citation omitted).

         The determination of whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679 (citation omitted). The pleader is not entitled to relief “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.” Id. (citing Fed.R.Civ.P. 8(a)(2)). The court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Id. at 678 (quotation and citation omitted). And “bare assertions” that “amount to nothing more than a formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true.” Id. at 681 (quotation and citation omitted). Stated succinctly:

. . . a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Id. at 679.

         The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). After careful consideration, the undersigned concludes that Defendant's Motion to Dismiss should be denied without prejudice.

         Plaintiff identifies his claim as one for trespass, the subject of the trespass evidently being property located at 111 Mohawk Trail, Crestview, Florida (ECF No. 1-2 at 8). To obtain a loan on this property, on September 19, 2005, Plaintiff executed a note in the amount of $276, 000.00 from the original lender, National City Mortgage, and a mortgage secured by the property, which as Defendant shows is recorded in the public records of Okaloosa County, Florida (ECF Nos. 16-1, 16-2). The note was subsequently sold to Defendant PNC Bank, N.A.

         The basis for Plaintiff's trespass claim appears to be that, according to Plaintiff, Defendant's mortgage note, secured by a lien on Plaintiff's property, was in effect satisfied and replaced by Plaintiff's own promissory note that he drafted and delivered to a local branch of the Defendant bank on July 27, 2015. Plaintiff asserts that Defendant's lien against the mortgage of the property was “paid in full with the 27 July, 2015, Defendant Signed Accepted note security instrument as the collateral and money making the payment tendered under law with no controversy” (ECF No. 24 at 2).

         Plaintiff further states that “Plaintiff's injury and trespass of property is that the Defendant is threatening foreclosure and a bad credit rating with low credit scores if Plaintiff does not continue paying the monthly payments for an alleged debt that has been paid-in full with full settlement as of 27 July, 2015” (id.). Thus, Plaintiff's claim is that his own note effectively satisfied the original mortgage note, which is therefore no longer in effect, and as a consequence Defendant's attempts to enforce the terms of its original note, including foreclosure, constitute a trespass on the property.[1]

         The note tendered or delivered by Plaintiff, which stated that payments would be made every month until the obligation was fulfilled, appears to have been signed by Plaintiff on July 8, 2015, and also bears the signature of Lara Waters (dated July 27, 2015), who was identified as the manager of the bank branch that Plaintiff visited. Her signature carries the notation that the note was “Received/Accepted” by her (ECF No. 24 at 12). Plaintiff also presented a document titled as a “Release of Mortgage and Note for 111 Mohawk Trail, Crestview, Florida, ” in which the following statement appears: “Find enclosed negotiable security instrument payment and final settlement to, PNC Bank, NA, regarding final payoff, No. ******3101” (ECF No. 24 at 13). This document was similarly signed by Lara Waters, also on July 27, 2015, again with the notation that the document was “Received/Accepted” by her (id. at 13). Plaintiff has also submitted personal checks that he drafted as payments on Defendant's mortgage note; Plaintiff put handwritten statements on these drafts indicating that he was submitting the payments “under protest, ” and that his account had been paid off since July 25, 2015, the date upon which he presented his own note and release to Defendant's bank branch (id. at 14-16).

         Plaintiff further indicates that the “[o]riginal [b]lue inked” signature from Ms. Waters, together with the fact that he had not “received any verified document nor bill that states that any money is owed” to Defendant, showed that Defendant “Breached and Defaulted the Terms and Conditions of [Defendant's] new received, and accepted by signature bilateral contract, ” that is, Plaintiff's new note (see ECF No. 12 at 4-7).[2]Thus, Plaintiff seems to claim that, as a result of Defendant's actions or non-actions, his note was accepted as a new contract, and Defendant's subsequent efforts to collect on their original mortgage note constituted a trespass (ECF No. 1-2 at 9).

         Defendant contends that Plaintiff's presentment of his promissory note and “Release of Mortgage and Note” to Defendant's local bank branch was insufficient to establish a new contract and thus had no effect on the original mortgage note.[3] Defendant describes Plaintiff's documents as unilateral agreements that fall short ...


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