Loudermilk et al v. Rushmore and Mr. Cooper et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DEREK LOUDERMILK, et al., )
)
Plaintiffs, )
)
vs. ) No. 4:24-cv-01360-MTS
)
RUSHMORE & MR. COOPER, et al., )
)
Defendants. )
MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motions to Dismiss. Docs. [5], [13].
The issues are fully briefed. For the reasons that follow, the Court will grant the Motions and
dismiss Plaintiffs’ Complaint. In lieu of dismissing this action, however, the Court will give
Plaintiffs an opportunity to file an amended complaint to reassert their claims consistent with
this Memorandum and Order, obtain counsel for House of Loudermilk Trust, and properly
serve Defendants. Failure to do so will result in dismissal, as appropriate.
I. Background
Plaintiffs Derek Loudermilk and House of Loudermilk Trust, proceeding pro se, filed
this wrongful-foreclosure action in state court against Defendants Nationstar Mortgage LLC
d/b/a Mr. Cooper or d/b/a Rushmore Servicing (“Nationstar”), Lakeview Loan Servicing, LLC
(“Lakeview”), PrimeLending, CSM Foreclosure Trustee Corporation (“CSM”), and up to 100
fictional parties. Doc. [3]. Plaintiffs challenge the foreclosure of their residence located at
3631 Hartford Street, in St. Louis (the “Property”). Id. at 2–4. They bring claims of wrongful
Case: 4:24-cv-01360-MTS Doc. #: 27 Filed: 11/25/25 Page: 1 of 15 PageID #:
<pageID>

2
foreclosure (Count I),1 fraud in the concealment (Count II), fraud in the inducement (Count
III), intentional infliction of emotional distress (Count IV), slander of title (Count V), quiet
title (Count VI), declaratory relief (Count VII), and violations of the Truth in Lending Act
(“TILA”) (Count VIII). Id. at 4–11. Defendants Nationstar and Lakeview filed a timely notice
of removal, invoking diversity and federal question jurisdiction. Doc. [1].
Defendants Nationstar, Lakeview, and PrimeLending filed Motions to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). Docs. [5], [13]. They argue that the
Complaint contains no meaningful allegations with respect to them, that Count I does not state
a valid cause of action under Missouri law, that Counts II and III fail to satisfy the particularity
requirement of Federal Rule of Civil Procedure 9(b), that Defendants’ alleged misconduct does
not rise to the level of outrageousness required to state a claim for intentional infliction of
emotional distress, that the allegations in Count V are conclusory, that Count VI fails to set
forth facts showing that Plaintiff have superior title to the Property, that Plaintiffs have not
shown that they are entitled to declaratory relief, and that Plaintiffs lack standing to bring a
TILA claim because they do not allege that they are borrowers under a loan. Doc. [6].
Plaintiffs oppose the Motions to Dismiss, arguing that they adequately alleged all of
their claims. Docs. [17], [19]. In the event that the Court finds deficiencies in the Complaint,
however, Plaintiffs request leave to amend to include additional facts and evidence, but they
1 Plaintiffs have styled Count I as a claim for “lack of standing to foreclose.” Doc. [3] at 4. In light of Plaintiffs’ pro
se status, the Court liberally construes Count I as asserting a claim for wrongful foreclosure. See Jackson v. Nixon,
747 F.3d 537, 544 (8th Cir. 2014) (explaining that liberally construing a pro se complaint means that “if the essence
of an allegation is discernible, even though it is not pleaded with legal nicety, then the district court should construe
the complaint in a way that permits the layperson’s claim to be considered within the proper legal framework” (quoting
Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004))).
Case: 4:24-cv-01360-MTS Doc. #: 27 Filed: 11/25/25 Page: 2 of 15 PageID #:
<pageID>

3
have not submitted a proposed amended pleading as required by the Eastern District of
Missouri’s Local Rule 4.07. Doc. [17] at 2.
II. Legal Standard
To survive a motion to dismiss for failure to state a claim, “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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). 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. A complaint that offers “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
When analyzing a motion to dismiss, “a court must accept the allegations contained in
the complaint as true and make all reasonable inferences in favor of the nonmoving party.”
Martin v. Iowa, 752 F.3d 725, 727 (8th Cir. 2014). But courts “need not accept as true a
plaintiff’s conclusory allegations or legal conclusions drawn from the facts.” Glick v. W.
Power Sports, Inc., 944 F.3d 714, 717 (8th Cir. 2019).
III. Discussion
A. Deficiencies in the Complaint
Other than alleging Defendants’ citizenships, the Complaint contains no factual
allegations regarding any named Defendant, does not specify which claims apply to which
Defendants, and fails to provide any details regarding the nature of the loan or the foreclosure.
Thus, the Complaint lacks sufficient factual allegations to allow the Court “to draw the
reasonable inference that [Defendants are] liable for the misconduct alleged,” Iqbal, 556 U.S.
at 663, and it fails to give Defendants fair notice of the nature and basis of any of the claims
Case: 4:24-cv-01360-MTS Doc. #: 27 Filed: 11/25/25 Page: 3 of 15 PageID #:
<pageID>

4
Plaintiffs might be asserting against them, see Topchian v. JPMorgan Chase Bank, N.A., 760
F.3d 843, 848 (8th Cir. 2014) (stating that the “essential function of a complaint . . . is to give
the opposing party fair notice of the nature and basis or grounds for a claim” (quoting Hopkins
v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999))); Frey v. City of Herculaneum, 44 F.3d 667,
672 (8th Cir. 1995) (concluding that the “complaint f[ell] short of meeting even the liberal
standard for notice pleading, since it [wa]s entirely conclusory, giving no idea what acts the
individual defendants [we]re accused of that could result in liability”). Additionally, Plaintiff
House of Loudermilk Trust is subject to being dismissed from the case because it may not
proceed without representation, and as a nonlawyer, Plaintiff Loudermilk is not permitted to
represent the trust. See Knoefler v. United Bank of Bismarck, 20 F.3d 347, 348 (8th Cir. 1994)
(“A nonlawyer, such as these purported ‘trustee(s) pro se’ has no right to represent another
entity, i.e., a trust, in a court of the United States.” (citing C.E. Pope Equity Trust v. United
States, 818 F.2d 696, 697–98 (9th Cir. 1987))). In light of Plaintiffs’ pro se status, the Court
will grant them leave to file an amended complaint and additional time to retain an attorney
for Plaintiff House of Loudermilk Trust. See Munz v. Parr, 758 F.2d 1254, 1259–60 (8th Cir.
1985) (explaining that a court should give a pro se plaintiff a statement of the complaint’s
deficiencies and a chance to amend the complaint); Rush v. State of Ark. DWS, 876 F.3d 1123,
1125–26 (8th Cir. 2017) (per curiam) (“[N]ormally pro se plaintiffs . . . are granted leave to
amend their pleadings). The Court will discuss the deficiencies specific to each claim in turn.
1. Count I – Wrongful Foreclosure
Under Missouri law, “[a] tort action for damages for wrongful foreclosure lies against
a mortgagee only when the mortgagee had no right to foreclose at the time foreclosure
proceedings were commenced.” Dobson v. Mortg. Elec. Registration Sys./GMAC Mortg.
Case: 4:24-cv-01360-MTS Doc. #: 27 Filed: 11/25/25 Page: 4 of 15 PageID #:
<pageID>

5
Corp., 259 S.W.3d 19, 22 (Mo. Ct. App. 2008) (citations omitted). Thus, “[a] plaintiff seeking
damages in a wrongful foreclosure action must plead and prove that when the foreclosure
proceeding was begun, there was no default on its part that would give rise to a right to
foreclose.” Id. (citations omitted). The Supreme Court of Missouri has made clear that “there
is no cause of action for attempted wrongful foreclosure.” Reese v. First Mo. Bank & Tr. Co.,
736 S.W.2d 371, 373 (Mo. 1987) (en banc) (“[O]ur authorizing a cause of action for wrongful
attempted foreclosure would effectively nullify the purposes for having the expeditious
non-judicial foreclosure deeds of trust.”).
Here, the Complaint fails to allege that there was no default on Plaintiffs’ part or that a
foreclosure sale has occurred. Instead, the Complaint repeatedly alleges that Plaintiffs are
challenging Defendants’ attempts to foreclose. E.g., Doc. [3] at 4 (“Defendants’ actions in the
processing, handling and attempted foreclosure of this loan. . . .”); id. at 7 (“Defendants’
conduct – fraudulently attempting to foreclose. . . .”). Plaintiffs’ response in opposition to the
motion to dismiss confirms that Defendants’ allegedly “improper actions include: Attempted
Foreclosure Without Standing” and “Wrongful Foreclosure Attempts.” Doc. [19] at 1–2.
Because “there is no cause of action for attempted wrongful foreclosure” under Missouri law,
Count I fails to state a claim and is subject to dismissal. See Reese, 736 S.W.2d at 373 (“[O]ur
authorizing a cause of action for wrongful attempted foreclosure would effectively nullify the
purposes for having the expeditious non-judicial foreclosure deeds of trust.”).
2. Counts II & III – Fraud in the Concealment & Fraud in the Inducement
Rule 9(b) provides that “[i]n alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and
other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b). To satisfy
Case: 4:24-cv-01360-MTS Doc. #: 27 Filed: 11/25/25 Page: 5 of 15 PageID #:
<pageID>

6
Rule 9(b)’s requirements, “the complaint must allege ‘such matters as the time, place, and
contents of false representations, as well as the identity of the person making the
misrepresentations and what was obtained or given up thereby.’” Drobnak v. Andersen Corp.,
561 F.3d 778, 783 (8th Cir. 2009) (quoting Schaller Tel. Co. v. Golden Sky Sys., Inc., 298 F.3d
736, 746 (8th Cir. 2002)). “In other words, the party must typically identify the ‘who, what,
where, when, and how’ of the alleged fraud.” BJC Health Sys. v. Columbia Cas. Co., 478 F.3d
908, 917 (8th Cir. 2007) (quoting United States ex rel. Costner v. URS Consultants, Inc., 317
F.3d 883, 888 (8th Cir. 2003)). “This requirement is designed to enable defendants to respond
‘specifically, at an early stage of the case, to potentially damaging allegations of immoral and
criminal conduct.’” Id. (quoting Abels v. Farmers Commodities Corp., 259 F.3d 910, 920 (8th
Cir. 2001)). “Conclusory allegations that a defendant’s conduct was fraudulent and deceptive
are not sufficient to satisfy the rule.” Id. (quoting Com. Prop. Invs. Inc. v. Quality Inns Int’l
Inc., 61 F.3d 639, 644 (8th Cir. 1995)).
Under Missouri law, the elements for the claims of fraudulent misrepresentation and
fraudulent inducement are identical: “(1) a representation; (2) its falsity; (3) its materiality;
(4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) the speaker’s intent that
it should be acted on by the person and in the manner reasonably contemplated; (6) the hearer’s
ignorance of the falsity of the representation; (7) the hearer’s reliance on the representation
being true; (8) the hearer’s right to rely thereon; and (9) the hearer’s consequent and
proximately caused injury.” Compare Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d
758, 765 (Mo. 2007) (en banc) (fraudulent misrepresentation), with SBFO Operator No. 3,
LLC v. Onex Corp., 101 F.4th 551, 557 (8th Cir. 2024) (quoting State ex rel. PaineWebber,
Inc. v. Voorhees, 891 S.W.2d 126, 128 (Mo. 1995) (en banc)) (fraudulent inducement). In a
Case: 4:24-cv-01360-MTS Doc. #: 27 Filed: 11/25/25 Page: 6 of 15 PageID #:
<pageID>

7
fraudulent concealment claim, “a party’s silence in the face of a legal duty to speak replaces
the first element: the existence of a representation.” Id. (citing Andes v. Albano, 853 S.W.2d
936, 943 (Mo. 1993) (en banc)). The duty to disclose “can be shown by the existence of
unequal positions, as in a relationship of trust from confidential relationship or some
demonstrably superior knowledge on the part of one party that is not within the fair and
reasonable reach of the other.” Littlefield v. Edmonds, 172 S.W.3d 903, 907 (Mo. Ct. App.
2005) (citing Van Booven v. Smull, 938 S.W.2d 324, 328 (Mo. Ct. App. W.D. 1997)).
Here, Plaintiffs’ fraud claims lack the level of particularity required by Rule 9(b). The
Complaint does not specify the time and place of the fraudulent conduct, facts about the nature
of the fraud, and which Defendant engaged in the fraudulent conduct. See Drobnak, 561 F.3d
at 783 (“[T]he complaint must allege such matters as the time, place, and contents of false
representations, as well as the identity of the person making the misrepresentations and what
was obtained or given up thereby.” (citation modified)). The Complaint also fails to allege
facts regarding the materiality of the representation, Defendants’ duty to disclose the
securitization of the loan, Plaintiffs’ right to rely on Defendants’ representation, and how
Defendants’ representation injured Plaintiffs. See Hess, 220 S.W.3d at 765 (stating the
elements of fraud in the concealment); Voorhees, 891 S.W.2d at 128 (stating the elements of
fraud in the inducement). Accordingly, Counts II and III do not meet Rule 9(b)’s heightened
pleading requirements and are subject to dismissal.
3. Count IV – Intentional Infliction of Emotional Distress
“To state a claim for intentional infliction of emotional distress, a plaintiff must plead
extreme and outrageous conduct by a defendant who intentionally or recklessly causes severe
emotional distress that results in bodily harm.” Gibson v. Brewer, 952 S.W.2d 239, 249 (Mo.
Case: 4:24-cv-01360-MTS Doc. #: 27 Filed: 11/25/25 Page: 7 of 15 PageID #:
<pageID>

8
1997) (en banc) (citing K.G. v. R.T.R., 918 S.W.2d 795, 799 (Mo. 1996) (en banc)). “The
conduct must have been ‘so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community.’” Id. (quoting Warrem v. Parrish, 436 S.W.2d 670, 673 (Mo. 1969)).
“The conduct must be ‘intended only to cause extreme emotional distress to the victim.’” Id.
(quoting K.G., 918 S.W.2d at 799).
Here, Defendants’ alleged misconduct—attempting to foreclose on the Property
without authority to do so—is not sufficiently extreme and outrageous to state a claim for
intentional infliction of emotional distress. The Complaint does not allege that Plaintiffs were
not in default, and it is in no way extreme or outrageous to foreclose on a property when a loan
is in default. Accordingly, Count IV fails to state a claim and is subject to dismissal.
4. Count V – Slander of Title
“Under Missouri law, a claim of slander of title requires the plaintiff to demonstrate:
(1) some interest in the property, (2) that the words published were false, (3) that the words
were maliciously published, and (4) that the plaintiff suffered pecuniary loss or injury as a
result of the false statement.” Jeffrey v. Cathers, 104 S.W.3d 424, 429 (Mo. Ct. App. 2003)
(citing Bechtle v. Adbar Co., L.C., 14 S.W.3d 725, 728 (Mo. Ct. App. 2000)). “An action for
slander of title cannot exist without a malicious intent.” Bechtle, 14 S.W.3d at 728 (citing
Tongay v. Franklin Cnty. Mercantile Bank, 735 S.W.2d 766, 770 (Mo. Ct. App. 1987)). To
plead the existence of malice, a plaintiff must plead facts “support[ing] a reasonable inference
that the representation not only was without legal justification or excuse, but also was not
innocently or ignorantly made.” Id. at 729.
Case: 4:24-cv-01360-MTS Doc. #: 27 Filed: 11/25/25 Page: 8 of 15 PageID #:
<pageID>

9
In Count V, Plaintiffs allege that “Defendants . . . disparaged Plaintiffs’ exclusive valid
title by . . . preparing, posting, publishing, and recording . . . various documents for
foreclosure” and that “Defendants knew the documents were false and created and published
them with the malicious intent to injure Plaintiffs.” Doc. [3] at 8. Because the Complaint
gives no indication of what documents Plaintiffs are challenging or what allegedly false
statements those unspecified documents contained, Plaintiffs “have failed to plead factual
content that permits the court to infer more than the mere possibility of misconduct.” Dunbar
v. Wells Fargo Bank, N.A.,709 F.3d 1254, 1258 (8th Cir. 2013) (quoting Iqbal, 556 U.S. at
679); see also Erickson v. Nationstar Mortg., LLC, 4:20-cv-0034, 2020 WL 7353708, at *4
(E.D. Mo. Dec. 15, 2020) (dismissing slander of title claim because it alleged only
“unsupported legal conclusions” and defendant was authorized to make assignment of the deed
of trust). As a result, Count V fails to state a claim and is subject to dismissal.
5. Count VI – Quiet Title
The Missouri quiet title statute provides that:
Any person claiming any title, estate or interest in real property . . . may institute
an action against any person or persons having or claiming to have any title,
estate or interest in such property . . . to ascertain and determine the estate, title
and interest of said parties, respectively, in such real estate, and to define and
adjudge by its judgment or decree the title, estate and interest of the parties
severally in and to such real property.
Mo. Rev. Stat. § 527.150(1).
“To state a claim for quiet title under Missouri law, a plaintiff must allege (1) ownership
of the described real estate; (2) that the defendant claims title or interest in the subject premises;
and (3) that such claim is adverse and prejudicial to the plaintiff.” Smith v. Select Portfolio
Servicing, Inc., 2:16-cv-04203-NKL, 2016 WL 4942029, at *3 (W.D. Mo. Sept. 15, 2016)
Case: 4:24-cv-01360-MTS Doc. #: 27 Filed: 11/25/25 Page: 9 of 15 PageID #:
<pageID>

10
(citing Howard v. Radmanesh, 586 S.W.2d 67, 67 (Mo. Ct. App. 1979)). “Plaintiffs must
‘plead facts showing they, in fact, have a superior title to the property at issue.’” Meng v. Fed.
Home Loan Mortg. Corp., 4:13-cv-2527-RWS, 2014 WL 1347556, at *2 (E.D. Mo. Apr. 4,
2014) (quoting Dufrenne v. CitiMortgage, Inc., 4:09-cv-1524-HEA, 2009 WL 5103275, at *3
(E.D. Mo. Dec. 17, 2009)).
Here, the Complaint fails to plead facts demonstrating that Plaintiffs have a superior
title to the Property. Plaintiffs expressly allege that a mortgage exists and do not allege that
they paid off the mortgage or that the Property is no longer encumbered, which suggests that
Plaintiffs’ interest in the Property is inferior to Defendants’ interest. See Smith, 2016 WL
4942029, at *3 (finding that plaintiff failed to state a claim for quiet title where he did not
“allege that he paid off the mortgage in full or that his property is no longer encumbered by
the mortgage”); Ponce v. Wells Fargo Bank, N.A., 6:19-cv-03152-RK, 2019 WL 4345989
(W.D. Mo. Sept. 12, 2019) (same). Thus, without any additional facts, Plaintiffs fail to state a
claim for quiet title. Count VI is therefore subject to dismissal.
6. Count VII – Declaratory Relief
“[A] declaratory judgment is a remedy, not a cause of action.” Ponce, 2019 WL
4345989, at *3 (alteration in original) (quoting STIM, LLC v. Aecom Tech. Servs., Inc., 4:15-
cv-0772-ODS, 2016 WL 1298145, at *2 (W.D. Mo. Apr. 1, 2016)). Plaintiffs are free to seek
declaratory relief for their substantive claims, but they cannot assert “declaratory relief” as an
independent cause of action. See Borishkevich v. Springfield Pub. Schs. Bd. of Educ., 541 F.
Supp. 3d 969, 977 n.1 (W.D. Mo. 2021) (explaining that declaratory judgment is a form of
relief, not a legal theory giving rise to a separate cause of action). Therefore, Count VII fails
to state a claim for relief and is subject to dismissal.
Case: 4:24-cv-01360-MTS Doc. #: 27 Filed: 11/25/25 Page: 10 of 15 PageID #:
<pageID>

11
7. Count VIII – TILA Violation
Congress enacted TILA in 1968 to “assure a meaningful disclosure of credit terms so
that the consumer will be able to compare more readily the various credit terms available to
him and avoid the uninformed use of credit.” Koons Buick Pontiac GMC, Inc. v. Nigh, 543
U.S. 50, 53–54 (2004) (quoting 15 U.S.C. § 1601(a)). TILA “requires a creditor to disclose
information relating to such things as finance charges, annual percentage rates of interest, and
borrowers’ rights, . . . and it prescribes civil liability for any creditor who fails to do so.” Id.
at 54; see also Rand Corp. v. Yer Song Moua, 559 F.3d 842, 846 (8th Cir. 2009) (discussing
disclosure requirements for loans secured by a borrower’s primary residence and availability
of rescission). “To state a claim under TILA a plaintiff must show that he did not receive
required written disclosures, or that the disclosures were not clear and conspicuous.” Whitely
v. Flagstar Bank, FSB, 4:17-cv-2075 HEA, 2018 WL 465789, at *2 (E.D. Mo. Jan. 17, 2018)
(quoting Goldblatt v. Herron, 4:10-cv-01183-DGK, 2011 WL 3584794, at *2–3 (W.D. Mo.
Aug. 15, 2011)).
Here, Plaintiffs’ conclusory allegation that “Defendants violated TILA by failing to
provide Plaintiffs with accurate material disclosures required by TILA” fails to meet the basic
pleading requirements of Fed. R. Civ. P. 8(a)(2). Doc. [3] at 10. The Complaint contains no
factual allegations suggesting that any Defendant is Plaintiffs’ creditor or an assignee of their
creditor, see Nieskens v. Peter, 0:09-cv-2085-DSD-SRN, 2010 WL 1626902, at *3 (D. Minn.
Apr. 21, 2010) (dismissing TILA claim where plaintiffs failed to allege facts suggesting that
defendant was a creditor), and it does not allege which Defendants failed to comply with
TILA’s disclosure requirements or specify how Defendants’ conduct violated those disclosure
requirements, see Vagle v. Flagstar Bank N.A., 0:24-cv-4637-KMM-DLM, 2025 WL
Case: 4:24-cv-01360-MTS Doc. #: 27 Filed: 11/25/25 Page: 11 of 15 PageID #:
<pageID>

12
1031145, at *5 (D. Minn. Apr. 7, 2025) (dismissing TILA claim that contained “nothing more
than conclusory statements” and did not allege which specific aspects of the communications
from the lender were inadequate); Taylor v. Mortg. Elec. Registration Sys., Inc., 4:13-cv-
00101-BSM, 2013 WL 12110523, at *3–4 (E.D. Ark. Aug. 14, 2013) (dismissing TILA claims
for rescission and damages for failure to allege facts supporting conclusory allegations and for
being time-barred). Further, the Complaint asserts that any applicable statute of limitations
was “tolled due to Defendants’ failure to effectively provide the required disclosures and
notices,” Doc. [3] at 10, but it fails to state when the loan originated and does not provide any
factual allegations indicating that equitable tolling should apply in this case, see 15 U.S.C. §
1640(e) (providing a one-year statute of limitations for filing suit once a violation of TILA has
occurred); Kramer v. Am. Wholesale Lenders, 4:10-cv-0156-TCM, 2011 WL 577390, at *3
(E.D. Mo. Feb. 9, 2011) (“A violation occurs when the transaction is consummated.” (citation
modified)); Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 706–08 (11th Cir. 1998)
(holding that “TILA is subject to equitable tolling”); Firstcom, Inc. v. Qwest Corp., 555 F.3d
669, 675 (8th Cir. 2009) (explaining that the party claiming the benefit of equitable tolling has
the burden of “establishing two elements: (1) that it has been pursuing its rights diligently,
and (2) that some extraordinary circumstance stood in its way” (citation modified)). Thus,
Count VIII is subject to dismissal.
B. Filing an Amended Complaint
Plaintiffs’ amended complaint must cure the deficiencies outlined above. In curing
those deficiencies, the amended complaint must clearly state which Defendants are implicated
in each count and specifically allege what each named Defendant did or failed to do that
resulted in injury to Plaintiffs. See Topchian, 760 F.3d at 848 (stating that the essential
Case: 4:24-cv-01360-MTS Doc. #: 27 Filed: 11/25/25 Page: 12 of 15 PageID #:
<pageID>

13
function of a complaint “is to give the opposing party fair notice of the nature and basis or
grounds for a claim”). It is not enough for Plaintiffs to make conclusory allegations against
Defendants as a group. If the amended complaint fails to make specific factual allegations
against any named Defendant, that Defendant will be dismissed from the case. See Potter v.
Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) (per curiam) (“Where a complaint alleges no
specific act or conduct on the part of the defendant and the complaint is silent as to the
defendant except for his name appearing in the caption, the complaint is properly dismissed,
even under the liberal construction to be given pro se complaints.”); see also Krych v. Hvass,
83 F. App’x 854, 855 (8th Cir. 2003) (unpublished per curiam) (affirming the dismissal of a
pro se complaint where individuals were merely named as defendants in the complaint, but
there were no specific allegations against them).
Additionally, Plaintiffs the amended complaint must include all the claims and factual
allegations they wish to assert because the amended complaint will completely replace the
original Complaint. See In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d at 928
(“It is well-established that an amended complaint supersedes an original complaint and
renders the original complaint without legal effect”). Any claims that are not included in the
amended complaint will be deemed abandoned and will not be considered. See id.
Finally, Plaintiff House of Loudermilk Trust must retain counsel if it wishes to proceed
as a party in this case. See United States v. Lylalele, Inc., 221 F.3d 1345 (8th Cir. 2000)
(unpublished per curiam) (“[T]rusts cannot appear in federal court without legal
representation.” (citing Knoefler, 20 F.3d at 348)); see also Knoefler, 20 F.3d at 348 (“A
nonlawyer, such as these purported ‘trustee(s) pro se’ has no right to represent another entity,
i.e., a trust, in a court of the United States.”). If Plaintiff House of Loudermilk Trust fails to
Case: 4:24-cv-01360-MTS Doc. #: 27 Filed: 11/25/25 Page: 13 of 15 PageID #:
<pageID>

14
retain counsel within 21 days of this Memorandum and Order, it will be dismissed from this
action without prejudice.
C. Service
As an additional matter, well over 90 days have passed since this case was removed,
but the record does not indicate that Plaintiffs have properly served Defendants CSM,
PrimeLending, or the fictious defendants. See Fed. R. Civ. P. 4(m) (“If a defendant is not
served within 90 days after the complaint is filed, the court—on motion or on its own after
notice to the plaintiff—must dismiss the action without prejudice against that defendant or
order that service be made within a specified time.”); see also id. at 4(l)(1) (providing that
“proof of service must be made to the court”). The Court will provide Plaintiffs an additional
21 days to request a summons for each of the unserved Defendants, including the fictitious
Defendants, and properly serve them, see Fed. R. Civ. P. 4(c)(1)–(2) (providing that “[t]he
plaintiff is responsible for having the summons and complaint served within the time allowed
by Rule 4(m)”); E.D. Mo. L.R. 2.02(B). If Plaintiffs fail to properly serve Defendants on or
before December 16, 2025, the unserved Defendants will be dismissed from the case without
prejudice.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendants’ Motions to Dismiss and
dismiss Plaintiffs’ Complaint. Plaintiffs will be given 21 days to (1) file an amended complaint
in accordance with the foregoing, (2) obtain counsel for Plaintiff House of Loudermilk Trust,
and (3) properly serve Defendants. Failure to timely comply with this Memorandum and Order
will result in the dismissal of the case. See Fed. R. Civ. P. 41(b).
Case: 4:24-cv-01360-MTS Doc. #: 27 Filed: 11/25/25 Page: 14 of 15 PageID #:
<pageID>

15
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motions to Dismiss Plaintiffs’
Complaint, Docs. [5], [13], are GRANTED.
IT IS FURTHER ORDERED that on or before December 16, 2025, Plaintiffs shall
submit an amended complaint that complies with the directives set forth in this Memorandum
and Order.
IT IS FURTHER ORDERED that if Plaintiffs are able to retain counsel for House of
Loudermilk Trust, then counsel must enter his or her appearance on or before December 16,
2025. Failure to obtain counsel for House of Loudermilk Trust will result in its dismissal from
this case.
IT IS FINALLLY ORDERED that on or before December 16, 2025, Plaintiffs must
serve the unserved Defendants and file proof of timely service. Failure to do so will result in
the dismissal of this action as to any unserved Defendant without prejudice and without further
notice pursuant to Federal Rule of Civil Procedure 4(m).
Dated this 25th day of November 2025.
MATTHEW T. SCHELP
UNITED STATES DISTRICT JUDGE
Case: 4:24-cv-01360-MTS Doc. #: 27 Filed: 11/25/25 Page: 15 of 15 PageID #:
<pageID>