Dale v. HomeQ Servicing Corporation et al

1 In the text of HomEq’s motion for a more definite statement and motion to strike
immaterial matter from the Debtor’s complaint, HomEq argues that the Debtor’s counts for
“Defenses to Foreclosure” and “Right to Recission (sic) under the TILA” should be dismissed for
a failure to state a claim upon which relief can be granted. HomEq’s requests to dismiss the
Debtor’s causes of action will be denied, without prejudice, pending submission of an amended
complaint.
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE WESTERN DISTRICT OF MISSOURI
In re: )
)
VIRGINIA P. DALE, ) Case No. 04-40152-JWV
)
Debtor. )
)
VIRGINIA P. DALE, )
)
Plaintiff, )
)
v. ) Adversary No. 04-4046-JWV
)
HOMEQ SERVICING CORP., )
)
Defendant. )
MEMORANDUM OPINION
This matter comes before the Court on HomeQ Servicing Corp.’s (“HomEq”) motion for a
more definite statement and motion to strike immaterial matter from the complaint filed against it by
Virginia P. Dale (“Debtor”), pro se. HomeEq argues that the Debtor’s complaint fails to aver facts
and causes of action with sufficient definiteness and/or particularity to enable HomEq to properly
prepare its answer.1 The Debtor responds asserting that she has no objection to amending her
adversary complaint.
Fed. R. Bankr. P. 7008(a) directs that a complaint must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief” and “a demand for judgment for the relief
the pleader seeks.” Each averment of the complaint must be simple, concise, and direct. Rule
7008(e). Further clarifying the content and form of a complaint is Rule 7010(b), which states:
All averments of a claim ... shall be made in numbered paragraphs, the contents of
each of which shall be limited as far as practicable to a statement of a single set of
circumstances .... Each claim founded upon a separate transaction or occurrence ...
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2 For example, the Debtor asserts in her response to HomEq’s motion that HomEq’s
mortgage is the result of a home improvement scam and that defenses/causes of action the Debtor
has arising out of the home improvement transaction would work to defeat HomEq’s mortgage. At
a minimum, the Debtor must provide HomEq with notice of the underlying facts of that dispute
demonstrating that the Debtor is entitled to the relief she seeks.
-2-
shall be stated in a separate count ... whenever a separation facilitates the clear
presentation of the matters set forth.
Fed. R. Bankr. P. 7010(b).
The Debtor’s complaint does not meet these minimum standards. For example, the Debtor
asserts a count of “Rights to Recission (sic) under the TILA” and avers that HomEq “made mistakes
in its disclosure of certain important terms” and further makes a conclusory statement that “[u]nfair
terms are prohibited terms in this loan.” The Debtor failed to put HomEq on notice of the “certain
important terms” and failed to provide a short plain statement of why the terms are unfair and
prohibited in her particular loan. In amending her complaint, the Debtor should independently address
her rights to determine the extent of HomEq’s lien through an accounting of the alleged debt, and
independently address any right to avoid HomEq’s lien under the Consumer Credit Protection Statutes,
15 U.S.C. §§ 1601 et seq., or based on some other infirmity.2
Finally, nothing in Rule 7008 contemplates the use of analogous cases in a party’s complaint.
The Debtor’s discussion of Beach v. Ocewn Federal Bank is stricken from the complaint.
Accordingly, the Court finds it appropriate to grant HomEq’s motion for a more definite
statement and motion to strike immaterial matter from the Debtor’s complaint, and the Court will allow
the Debtor twenty days to file an amended complaint. The Court strongly encourages the Debtor to
obtain legal counsel. A separate order shall be entered pursuant to Fed. R. Bankr. P. 9021.
ENTERED this 19th day of March 2004.
/s/ Jerry W. Venters
HONORABLE JERRY W. VENTERS
UNITED STATES BANKRUPTCY JUDGE
#10
A copy of the foregoing was mailed
conventionally or electronically to:
Virginia P. Dale
Jill D. Olsen is directed to serve parties of interest not receiving electronic notice
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