Leblanc v. MIS Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ALLISON KATHLEEN LEBLANC, etc., )
)
Plaintiff, )
)
vs. ) CIV A. NO. 24-0209-KD-MU
)
MIS INC., et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff Allison Kathleen Leblanc, proceeding pro se, filed a complaint and an
amended complaint against six defendants asserting claims based on the foreclosure
and subsequent ejectment from property previously owned by Kathy Heindl (Leblanc’s
mother). (Docs. 1 and 6). This action was referred to the undersigned, pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4), and is now before the Court on the
motions to dismiss Plaintiff’s amended complaint filed by Defendants Sheriff Huey Mack
and Deputy Clarence Herring (Docs. 15, 16) and by Defendants Regions Bank
(“Regions”) and the Federal Home Loan Mortgage Corporation (“Freddie Mac”) (Doc.
13), Plaintiff’s untimely responses thereto (Doc. 35, 39), and these Defendants’ replies
to Plaintiff’s responses (Doc. 36, 41). For the reasons stated below, it is recommended
as follows: 1) that any and all claims purportedly asserted by Plaintiff on behalf of
Heindl, the estate of Heindl, or any trust be dismissed without prejudice; 2) that the
motion to dismiss filed by Defendants Mack and Herring be granted and that Plaintiff’s
amended complaint be dismissed, without prejudice, with leave to file a second
amended complaint as to these Defendants, and 3) that the motion to dismiss filed by
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Defendants Regions and Freddie Mac be granted and that Plaintiff’s amended
complaint against these Defendants be dismissed with prejudice.
I. Factual Allegations/Uncontroverted Facts
The complaint filed on June 25, 2024 was filed by Allison-kathleen of the family
Leblanc and named as Plaintiff: “Allison-kathleen of the family Leblanc ... acting on
behalf of herself and the estate of KATHY B HEINDL.” (Doc. 1, PageID. 1). The
amended complaint filed on July 19, 2024 was filed by Allison-Kathleen of House
Leblanc “acting in the best commercial interest of ALLISON LEBLANC and KATHY B
HEINDL” and again named as Plaintiff: “Your Orator: Allison-kathleen of house Leblanc
... acting on behalf of herself and the estate of KATHY B HEINDL.” (Doc. 6, Page ID.
48). Later, in response to the motion to dismiss by Sheriff Mack and Deputy Herring,
Plaintiff purported to submit the response on behalf of “Plaintiff, Allison-Kathleen:
LeBlanc, as Trustee of the Kathy Boutwell Heindl Trust.” (Doc. 35, PageID. 333, 338).
In her amended complaint, Leblanc asserts claims against Defendants MIS, Inc.,
Regions Bank, Freddie Mac, Mo’s Towing LLC, Deputy Sheriff Clarence Herring, and
Baldwin County Sheriff Huey Hoss Mack. (Doc. 6, PageID. 48). Leblanc claims she “is
the lawful and rightful owner” of property located at 26451 Baldwin Beach Expressway,
Robertsdale, Alabama 36567 (the “Property”). (Id., PageID. 49). LeBlanc alleges that
Regions originated a loan on August 14, 2015, secured by a mortgage on the Property
and that “[t]he mortgage was transferred to Freddie Mac without Your Orator’s
knowledge, violating SEC Rule 10b-5 and Rule 424(b)(5).” (Doc. 6 at 2, PageID. 49).
She further alleges that Regions committed procedural violations and failed to submit
necessary documents for a valid foreclosure, invalidly assigned the mortgage, and
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engaged in “questionable securitization practices” involving BNY Mellon U.S. Mortgage
Fund. (Id.). Leblanc avers that “Freddie Mac (holder of unassigned mortgage) instructed
Regions Mortgage to foreclose in their own name to avoid taxes, once again breaking
the chain of title.” (Id.). She further asserts that “Regions Bank and Freddie Mac were
involved in predatory lending practices, imposing unfair and abusive loan terms on the
borrower.” (Id., PageID. 50).
Leblanc claims that, on “October 24, 2023, attorneys for MIS, Inc. filed for the
seizure of and entitlement to certain lands situated at 26451 Baldwin Beach Express,
Robertsdale, Alabama 36567” and that “[o]n June 20th, 2024, Sheriff Deputy Clarence
Herring, under the command of Sheriff Huey Hoss Mack, did forcibly remove Your
Orator and her family from the home and executed a search and seizure violating her
2nd and 4th amendment rights.” (Id.). She further alleges that “on June 20-24, MIS Inc.
employees enlisted the assistance of Mo’s Towing LLC, and without proper authority or
justification, towed and/or damaged several pieces of [Leblanc’s] personal property,”
including several vehicles, a golf cart, a fishing boat, a storage building, a camper, and
several trailers. (Id.). Leblanc also alleges that “Mo’s Towing LLC unlawfully confiscated
several pieces of personal property without just compensation or cause, thereby
abusing eminent domain principles and causing significant harm.” (Id.).
The Court notes that many of Leblanc’s factual allegations are controverted by
written documents submitted by various Defendants with their motions to dismiss. For
example, the loan and mortgage documents, as well as the Warranty Deed, show that it
was Kathy B. Heindl who owned and mortgaged the Property.1 (Doc. 32-8, PageID.
1 Because Plaintiff refers to the Note and Mortgage in her amended complaint and
these documents are central to her claims, the Court may consider them in ruling on the
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297-98; Doc. 13-1, PageID. 114-16; Doc. 13-2, PageID. 118-33). As reflected in a
subsequent Foreclosure Deed, Heindl defaulted on the loan, Regions foreclosed on the
Property, and then Regions sold the Property at public auction on September 21, 2023
to Defendant MIS.2 (Doc. 13-3, PageID. 135-37). The Property was conveyed to MIS by
the Foreclosure Deed dated September 26, 2023, and recorded September 28, 2023, at
Instrument No. 2088370 in the Probate Records of Baldwin County, Alabama. (Id.). On
October 24, 2023, MIS filed an action for ejectment and declaratory judgment in Baldwin
County Circuit Court, 05-CV-2023-901333, against Allison Leblanc, Kathy Heindl, and
J.P. Leblanc, who remained in actual possession of the Property. (Doc. 32-1, PageID.
231-34). MIS moved for summary judgment in its favor, and, on April 23, 2024, the state
court granted summary judgment in favor of MIS. (Doc. 32-1, PageID. 235-38; Doc. 32-
3, PageID. 240). On June 11, 2024, the state court issued a writ of restitution or
possession, commanding law enforcement “to restore [MIS] to possession of the land
and tenements which [MIS] recovered of [Allison Leblanc, Kathy Heindl, and J.P.
Leblanc] in an action of forcible entry and detainer ....” (Doc. 32-4, PageID. 241). Deputy
Clarence Herring served Kathy Heindl with the writ on June 20, 2024. (Doc. 32-6,
PageID. 242). The state court awarded damages for mesne profits to MIS on July 15,
motions to dismiss without converting the motions into summary judgment motions. See
Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997).
2 The Court may take judicial notice of the Foreclosure Deed as a document publicly
recorded by the Probate Court of Baldwin County, Alabama. See Mizell v. Wells Fargo
Bank N.A., 2024 WL 997338, at *1 n.2 (M.D. Ala. Feb. 12, 2024) (citing Fed. R. Evid.
201(b)(2)); Cobb v. JP Morgan Chase, LLC, 2011 WL 13221045, at *1 n. 4 (N.D. Ga.
2011); Galstaldi v. Sunvest Comm. USA, LLC, 637 F. Supp. 2d 1045, 1054 (S.D. Fla.
2009)) (taking judicial notice of “the publicly-recorded foreclosure deeds…filed as
exhibits with defendants’ motion to dismiss”).
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2024, finding that MIS “obtained fee simple title to the Property via Foreclosure Deed”
and that the court’s writ of possession “was duly executed.” (Doc. 32-6, PageID. 243-
44).
Based on the allegations set forth in her amended complaint, Plaintiff asserts
claims against all six defendants as follows:
Count I: Breach of Contract, alleging that “Defendants breached the contract by
unlawfully seizing the property and holding Your Orator liable without proper disclosure
and authority;”
Count II: Unjust Enrichment, asserting that “Defendants were unjustly enriched
at Your Orator’s expense by obtaining a security interest through manipulative and
deceptive acts;”
Count III: Fraud, alleging that “Defendants engaged in fraudulent activities by
misrepresenting the terms of the mortgage and the securitization process” and that
“Your Orator relied on these misrepresentations to her detriment...;”
Count IV: Violation of the Truth in Lending Act (“TILA”), in which she avers that
“Defendants failed to make required disclosures under TILA” and “Defendants’ actions
violated 15 U.S.C. § 1635(f), entitling Your Orator to rescission and damages;” and
Count V: Unlawful Confiscation and Abuse of Eminent Domain, based upon her
assertions that “MIS Inc. and Mo’s Towing LLC abused principles of eminent domain by
seizing private property without just compensation or legal cause, constituting a
violation of rights secured to Your Orator by the Fifth Amendment.” She further supports
this claim by the allegation that “[t]he unlawful towing resulted in substantial and
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irreparable damage to Your Orator’s property, including the critical medical bed of Kathy
B. Heindl, further justifying the need for Mo’s Towing LLC to be held accountable.”3
Notably, although she alleges that “[o]n June 20th, 2024, Sheriff Deputy Clarence
Herring, under the command of Sheriff Huey Hoss Mack, did forcibly remove Your
Orator and her family from the home and executed a search and seizure violating her
2nd and 4th amendment rights,” Leblanc does not set forth a cause of action for illegal
or improper search and seizure or for any violation of her 2nd and 4th amendment
rights.
II. Standard of Review
Defendants seek dismissal of Plaintiff’s complaint pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure. Defendants argue that Plaintiff’s
complaint is due to be dismissed, pursuant to Rule 12(b)(1), because this Court lacks
subject matter jurisdiction because Plaintiff does not have standing to pursue this
action. “[T]he party invoking the court’s jurisdiction must prove, by a preponderance of
the evidence, facts supporting the existence of jurisdiction.” Jory v. United States, 562
F. App’x 926, 927 (11th Cir. 2014) (citing McCormick v. Aderholt, 293 F.3d 1254, 1257
(11th Cir. 2002)). “Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction
can be asserted on either facial or factual grounds.” Carmichael v. Kellogg, Brown &
Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009) (citing Morrison v. Amway Corp.,
323 F.3d 920, 925 n.5 (11th Cir. 2003)). “Facial challenges to subject matter jurisdiction
are based solely on the allegations in the complaint,” and when considering a facial
challenge, “the court must … take the complaint’s allegations as true.” Id. “However,
3 Plaintiff has not served Mo’s Towing LLC.
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where a defendant raises a factual attack on subject matter jurisdiction, the district court
may consider extrinsic evidence such as deposition testimony and affidavits.” Id.
A defendant may also move to dismiss a complaint, pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, on the basis that the plaintiff has failed to state a
claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). To survive a
motion to dismiss, a plaintiff must plead “only enough facts to state a claim to relief that
is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see
also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a 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.’” (citation omitted)). “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. . . . [This standard]
asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678.
That is, “[f]actual allegations must be enough to raise a right to relief above the
speculative level,” and must be a “‘plain statement’ possess[ing] enough heft to ‘sho[w]
that the pleader is entitled to relief.’” Twombly, 550 U.S. at 555, 557 (second brackets
in original). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
In determining whether a claim is stated, the factual allegations are accepted as
true, except for conclusory assertions or a recitation of a cause of action’s elements,
and the allegations must be considered in the light most favorable to the plaintiff. See
id.; Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). In addition, “[a] complaint
is subject to dismissal for failure to state a claim ‘when its allegations, on their face,
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show that an affirmative defense bars recovery on the claim,’” Douglas v. Yates, 535
F.3d 1316, 1321 (11th Cir. 2008) (quoting Cottone v. Jenne, 326 F.3d 1352, 1357 (11th
Cir. 2003)), or “when, on the basis of a dispositive issue of law, no construction of the
factual allegations will support the cause of action,” Marshall Cnty. Bd. of Educ. v.
Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
III. Discussion
The Court will first analyze the ground for dismissal posed by both sets of
defendants and then proceed to those particular to Defendants Mack and Herring,
before concluding with those asserted by Defendants Regions and Freddie Mac.
A. Standing
Defendants seek dismissal of any claims Plaintiff has asserted on behalf of Kathy
Heindl, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, for lack of
subject matter jurisdiction based on their assertion that Plaintiff lacks standing to pursue
such claims on behalf of Heindl, an estate, or a trust. A Rule 12(b)(1) motion to dismiss
for lack of subject matter jurisdiction can proceed as either a facial or factual attack.
Stalley ex rel. United States v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229,
1232 (11th Cir. 2008).
A facial attack on the complaint requires the court merely to look and see
if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction,
and the allegations in his complaint are taken as true for the purposes of
the motion. By contrast, a factual attack on a complaint challenges the
existence of subject matter jurisdiction using material extrinsic from the
pleadings, such as affidavits or testimony.
Id. at 1232–33. Standing is an element of subject matter jurisdiction, “and the party
invoking federal jurisdiction bears the burden of establishing its existence.” Id. at 1232
(quoting Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1003 (11th Cir. 2004)).
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The complaint filed on June 25, 2024 was filed by Allison-kathleen of the family
Leblanc and named as Plaintiff: “Allison-kathleen of the family Leblanc ... acting on
behalf of herself and the estate of KATHY B HEINDL.” (Doc. 1, PageID. 1). The
amended complaint filed on July 19, 2024 was filed by Allison-Kathleen of House
Leblanc “acting in the best commercial interest of ALLISON LEBLANC and KATHY B
HEINDL” and again named as Plaintiff: “Your Orator: Allison-kathleen of house Leblanc
... acting on behalf of herself and the estate of KATHY B HEINDL.” (Doc. 6, Page ID.
48). Later, in her responses to the motions to dismiss filed by these defendants, Plaintiff
purported to submit the responses on behalf of “Plaintiff, Allison-Kathleen: LeBlanc, as
Trustee of the Kathy Boutwell Heindl Trust.” (Doc. 35, PageID. 333, 338; Doc. 39,
PageID. 367).
While Leblanc states that she is “acting in the best commercial interest of” herself
and Heindl, and that she is “acting on behalf of herself and the estate of Kathy B.
Heindl,” she does not allege any facts whatsoever plausibly demonstrating that Heindl
passed away, that she is the executor or administrator of any Estate for Heindl, or that
she has the authority to act on behalf of Heindl. As noted above, in response to
Defendants’ argument that Plaintiff lacks standing to bring claims on behalf of Heindl,
Plaintiff asserted that she “is acting as the trustee of the trust that holds the property
and is therefore entitled to enforce the terms of the mortgage and loan agreements as
they relate to the property held in trust.” (Doc. 39, PageID. 367-38). However, the Note
and Mortgage, as well as the Foreclosure Deed, clearly show the property was owned
and held by Heindl, with no mention of any trust. Then, in a confusing and contradictory
manner, she alleges on the same page of her response that she has been “acting on
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behalf of the estate of KATHY BOUTWELL HEINDL” and that her “involvement is
necessary to protect the estate’s interests.” (Id., PageId. 368).
Although Plaintiff cannot materially alter her pleadings through a response brief,
see Young v. Midwest Recovery Sys., No. CA 19-0564, 2019 WL 7882532, at *8 n.6
(S.D. Ala. Dec. 10, 2019) (“[A] Plaintiff cannot amend her complaint in any manner
through a response to a motion to dismiss.”), even if she could, the claim that a trust of
which Plaintiff is trustee owns or owned the Property is flatly contradicted by the Note,
Mortgage, and Foreclosure Deed. (See Docs. 13-1, 13-2, and 13-3). Those documents
state that the borrower and owner of the property was “Kathy B Heindl,” not a trust or
estate, and the Property was sold at foreclosure to MIS, not to an estate or to a trust.
In sum, Plaintiff has made no showing that she has legal authority to represent
the interests of Heindl. While she can represent herself pro se; that is, without an
attorney, she cannot litigate this case on behalf of Heindl. 28 U.S.C. § 1654 (limiting a
pro se plaintiff to “plead[ing] and conduct[ing] their own cases personally.”). Additionally,
even if Plaintiff could make a showing that she is the administrator of Heindl’s estate or
the trustee of a trust, she cannot represent the estate or trust in this action without an
attorney. See Irele v. Griffin, 65 F.4th 1280, 1284–85 (11th Cir. 2023) (holding an
executor of an estate cannot proceed pro se on behalf of estate unless there are no
additional beneficiaries and/or creditors); Franklin v. Garden State Life Ins., 462 F.
App’x 928, 930 (11th Cir. 2012) (“Because [plaintiff], as a non-lawyer, was not permitted
to proceed pro se on behalf of [the] estate, she can prove no set of facts entitling her to
relief.”); Chase Bank USA, N.A. v. Jacucci, No. 19-cv-62318, 2020 WL 10229080, at *1
(S.D. Fla. Jan. 17, 2020) (citing Knoefler v. United Bank of Bismarck, 20 F.3d 347, 347–
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48 (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.”); Mitchelle
Art 89 Trust v. Astor Alt, LLC, No. 15-cv-463, 2015 WL 4394887, at *2 & n.6 (N.D. Ga.
July 15, 2015) (“Because [the executruix of the Estate] and [the trustee of the Trust] are
not attorneys and are not authorized to practice law in this Court, they cannot represent
the Trust in this action.”).
Accordingly, because Plaintiff cannot represent Heindl or any estate or trust that
may exist and be a proper party to this action in a pro se capacity, all claims purportedly
asserted by her on behalf of Heindl or one of these entities is due to be dismissed
without prejudice.
B. Defendants Mack and Herring
Defendants Mack and Herring base their motion to dismiss on several grounds,
including their contention that Plaintiff’s amended complaint, as asserted against them,
is an impermissible shotgun pleading that must be dismissed. (Doc. 15, PageID. 138).
For the reasons set forth below, the undersigned agrees.
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that the complaint
contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” This requirement is to ensure that the complaint gives fair notice of the plaintiff’s
claims and the grounds therefor to the defendants and the court. See Leatherman v.
Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993). A
defendant needs preciseness and clarity in a plaintiff’s allegations to “discern what the
plaintiff is claiming and to frame a responsive pleading.” Anderson v. Dist. Bd. of Trs. of
Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir.1996). Likewise, the court should not
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be taxed with “the cumbersome task of sifting through myriad claims, many of which
[may be] foreclosed by governmental immunities, statutes of limitations and similar
defenses.” Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984). “[S]ufficient detail
must be given so that the defendant, and the Court, can obtain a fair idea of what the
plaintiff is complaining, and can see that there is some legal basis for recovery.” Id. at
556.
A plaintiff’s statement of his claims must “possess enough heft to ‘sho[w] that the
pleader is entitled to relief.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)
(quoting Fed. R. Civ. P. 8(a)(2)). Even though “detailed factual allegations” are not
needed, “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Id. at 555. Rule 8 “demands more than an unadorned, the-defendant-
unlawfully-harmed-me-accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
complaint consisting of naked assertions, without further factual enhancement, or one
that offers mere “labels and conclusions” will not suffice. Id. “To survive a 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.’” 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.
Plaintiff’s amended complaint is what has often been referred to as a “shotgun
pleading.” In Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1321 (11th
Cir. 2015), the Eleventh Circuit described the “four rough types” of shotgun pleadings:
(1) a complaint containing multiple paragraphs and counts where each count adopts the
allegations and content of all preceding paragraphs and counts, (2) a complaint that is
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“replete with conclusory, vague, and immaterial facts not obviously connected to any
particular cause of action,” (3) a complaint that does not separate into a different count
each cause of action or claim for relief, and (4) a complaint that asserts multiple claims
against multiple defendants without specifying which defendant is responsible for which
act or which of the defendants a specific claim is brought against. Id. at 1321-23
(footnotes omitted). “The unifying characteristic of all types of shotgun pleadings is that
they fail to one degree or another, and in one way or another, to give the defendants
adequate notice of the claims against them and the grounds upon which each claim
rests.” Id. at 1323. The Eleventh Circuit has “condemned shotgun pleadings for
decades.” See Nurse v. Sheraton Atlanta Hotel, 618 F. App’x 987, 990 (11th Cir. 2015)
(citing Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 n. 54 (11th Cir. 2008)
(“since 1985 we have explicitly condemned shotgun pleadings upward of fifty times”)).
Plaintiff’s amended complaint contains three of the four impermissible “shotgun
pleadings” categories. First, the amended complaint “contain[s] multiple counts where
each count adopts the allegations of all preceding counts, causing each successive
count to carry all that came before....” For example, the first sentence of each count
states, “Your Orator reasserts and incorporates by reference the assertions contained in
Paragraphs 1-4.” (Doc. 6, PageID. 50). Paragraphs 1-4 contain all the factual
allegations described above. (Id., PageID. 49-50). In addition, the amended complaint is
“replete with conclusory, vague, and immaterial facts not obviously connected to any
particular cause of action.” For example, the amended complaint contains the
conclusory statement that Herring, under the command of Mack, “executed a search
and seizure violating her 2nd and 4th amendment rights,” but it includes no facts that
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describe what Herring did, much less facts that support this conclusion. (Id.). Finally,
Plaintiff’s amended complaint also “assert[s] multiple claims against multiple defendants
without specifying which defendant(s) are responsible for which acts or omissions.”
Each of the five counts is asserted against all six defendants without specifying the acts
or omissions of any particular defendant. (Id., PageID. 50). More importantly, no count
seems to be directly addressed to these Defendants or the conclusory “factual”
allegations attributed to them. (Id., PageID. 49-50). Nor do any of Plaintiff’s requests for
relief seem directed to these Defendants. (Id., PageID. 51).
This Court recognizes that Plaintiff is proceeding pro se in this action and
acknowledges that “pro se pleadings are held to a less strict standard than pleadings
filed by lawyers and thus are construed liberally.” Giles v. Wal-Mart Distrib. Ctr., 359 F.
App’x 91, 93 (11th Cir. 2009). However, “this liberal construction ‘does not give a court
license to serve as de facto counsel for a party, or to rewrite an otherwise deficient
pleading in order to sustain an action.’” Id. (quoting GJR Invs., Inc. v. Cty. of Escambia,
132 F.3d 1359, 1369 (11th Cir. 1998)). Plaintiff’s amended complaint clearly does not
meet the pleading requirements of Rule 8, nor does it give these Defendants fair notice
of the claims asserted against them and the grounds therefor. Accordingly, the
undersigned recommends that Plaintiff’s claims against Defendants Mack and Herring
be dismissed without prejudice and with leave to file a second amended complaint.
In pleading the second amended complaint, Plaintiff is cautioned that she must
(1) comply with the pleading requirements of Rules 8(a) and 9 of the Federal Rules of
Civil Procedure (particularly Rule 9(b) if alleging fraud); (2) include a factual background
section setting forth, in separately numbered paragraphs and in plain and simple
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language, specific factual allegations in support of any claims asserted against these
Defendants; (3) set forth in a separately numbered count each claim made, identify the
specific defendants that each claim is made against, and set forth the specific acts
and/or omissions of each defendant that supports each claim; and (4) exclude all
generalized and immaterial facts, statements, and allegations that are not specifically
related to her claims. See Nurse v. Sheraton Atlanta Hotel, 618 F. App’x 987, 988 (11th
Cir. 2015). Plaintiff must also explain the grounds upon which she bases her claim that
she has standing to pursue the claims set forth in her second amended complaint, as
well as set forth facts supporting this Court’s jurisdiction.
C. Defendants Regions and Freddie Mac
Defendants Regions and Freddie Mac assert that Counts I-IV of Plaintiff’s
amended complaint are due to be dismissed because Plaintiff lacks standing to bring
those claims and, even if she had standing, those claims fail as a matter of law.
Additionally, these Defendants argue that that are entitled to be dismissed from Count V
because this count was not directed toward them and, even if it was, it fails to state a
cause of action.
1. Lack of Standing
Regions and Freddie Mac argue that Counts I–IV of Plaintiff’s amended
complaint should be dismissed for lack of subject matter jurisdiction because Plaintiff
lacks standing to bring any of these four claims. Specifically, they aver that Plaintiff has
not demonstrated that she has suffered an “injury in fact,” one of the essential elements
of standing.
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To demonstrate standing, a plaintiff must establish “the triad of injury in fact,
causation, and redressability.” Stalley, 524 F.3d at 1232. An injury in fact is “a harm
suffered by the plaintiff that is concrete and actual or imminent, not conjectural or
hypothetical.” Id. Thus, the question presented here is whether Plaintiff has suffered an
actual injury from Regions or Freddie Mac’s alleged conduct.
As noted above, the Note, Mortgage, Warranty Deed, and Foreclosure Deed
unequivocally belie Plaintiff’s allegation that she “is the lawful and rightful owner” of the
Property. (Doc. 6, PageID. 49). The loan and mortgage documents, as well as the
Warranty Deed, show that it was solely Kathy B. Heindl who owned and mortgaged the
Property. (Doc. 32-8, PageID. 297-98; Doc. 13-1, PageID. 114-16; Doc. 13-2, PageID.
118-33). As reflected in a subsequent Foreclosure Deed, Heindl defaulted on the loan,
Regions foreclosed on the Property, and then Regions sold the Property at public
auction on September 21, 2023 to Defendant MIS. (Doc. 13-3, PageID. 135-37). The
Property was conveyed to MIS via the Foreclosure Deed dated September 26, 2023,
and recorded September 28, 2023, at Instrument No. 2088370 in the Probate Records
of Baldwin County, Alabama. (Id.).
The uncontroverted evidence shows that Plaintiff was not a party to these
contracts or transactions. When exhibits attached to a motion to dismiss contradict the
allegations in a pleading, the exhibits control. See Crenshaw v. Lister, 556 F.3d 1283,
1292 (11th Cir. 2009); Infante v. Bank of Am. Corp., 468 F. App’x 918, 921 n.2 (11th Cir.
2012) (explaining that documents referred to in the complaint and central to plaintiff’s
claim may be considered for purposes of a motion to dismiss and, when they contradict
allegations in the complaint, are controlling).
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A non-party to a contract lacks standing to enforce the contract, unless the non-
party is an intended third-party beneficiary of the contract. See Bochese v. Town of
Ponce Inlet, 405 F.3d 964, 981 (11th Cir. 2005). Under Alabama law, a party claiming
third-party beneficiary status must show that the contracting parties intended to bestow
a direct benefit upon the third party at the time they entered the contract. WM Mobile
Bay Environmental Center, Inc. v. City of Mobile, 441 F. Supp. 3d 1259, 1264–65 (S.D.
Ala. 2020). The Note and Mortgage documents, as well as the Foreclosure Deed,
clearly show that Regions and Heindl were the only two parties involved in those
transactions. Moreover, the documents do not refer to Plaintiff at all. As such, she is
clearly not a party to the Note or Mortgage, nor has she alleged any facts showing she
is an intended third-party beneficiary under either contract. Therefore, Plaintiff has no
standing to bring a breach of contract claim based on the loan or mortgage.
For the same reasons, Plaintiff lacks standing to bring the unjust enrichment,
fraud, and TILA claims set forth in Counts II-IV. Each of these claims is entirely
predicated on the Note and Mortgage. For her unjust enrichment claim, Plaintiff alleges
that Defendants obtained “a security interest through manipulative and deceptive acts.”
(Doc. 6, PageID. 50). For her fraud claim, she alleges that Defendants misrepresented
“the terms of the mortgage and the securitization process,” and for her TILA claim, she
claims Defendants failed to make required disclosures regarding the loan. (Id.).
Because Plaintiff was not a party to the note and mortgage transactions, she clearly
lacks standing to bring each of these claims. The uncontroverted evidence shows that it
was Regions and Heindl, not Regions and Leblanc, who were the parties to the Note
and Mortgage. Even if accepted as true, Defendants’ alleged conduct in regard to the
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Property, the Note, and the Mortgage did not injure Plaintiff because she has no legally
cognizable interest in the contracts between Regions and Heindl or in the Property
itself. Therefore, Plaintiff lacks standing to pursue the claims set forth in Counts I–IV
and those counts are due to be dismissed.
2. Failure to State a Claim
Regions and Freddie Mac also seek dismissal of all counts set forth by Plaintiff,
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a
claim upon which relief may be granted.
a. Breach of Contract
Defendants assert that Plaintiff fails to adequately allege the elements of a
breach of contract claim. In Count I of the amended complaint, Plaintiff reasserts all of
the factual allegations set forth therein and then states that “Defendants breached the
contract by unlawfully seizing the property and holding Your Orator liable with proper
disclosure and authority” and “[a]s a result, Your Orator has suffered damages,
including the loss of property and associated financial losses.” (Doc. 6, PageID. 50). As
an initial matter, it is unclear from the face of the amended complaint as to which
Defendants Plaintiff refers and to what “contract” she refers. To the extent she is
referring to the Note or the Mortgage - the only contracts referenced in the amended
complaint – Plaintiff is not a party to either of those contracts. See, discussion supra.
The elements of breach of contract under Alabama law are “(1) a valid contract
binding the parties; (2) the plaintiffs’ performance under the contract; (3) the defendant’s
nonperformance; and (4) resulting damages.” Dupree v. PeoplesSouth Bank, 308 So.3d
484, 490 (Ala. 2020). First, Plaintiff has failed to allege facts showing the existence of a
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contract to which she is a party and the evidence shows that she is not a party to the
Note or Mortgage. Of equal import, Plaintiff has also not alleged that she (or, for that
matter, Heindl) performed under the contract by making the required payments. To state
a claim for breach of contract, the plaintiff must explain “which Defendant did what, and
when, that would constitute a breach of the mortgage contract.” See Collins v. BSI Fin.
Servs., Case No. 2:16-cv-262-WHA, 2016 WL 6776284, at *13 (M.D. Ala. Nov. 15,
2016). In addition to failing to distinguish between any of the six defendants, Plaintiff
does not allege facts showing what was unlawful or improper about “Defendants”
alleged conduct, and she has not alleged that Regions or Freddie Mac were even
involved in “seizing” the Property at all. In fact, she alleges that MIS, not Regions or
Freddie Mac, “filed for the seizure of and entitlement to” the Property. (Doc. 6, PageID.
49).
The Court agrees with Defendants. Plaintiff is simply not a party to either the
Note or Mortgage, nor has she made any allegation that Regions and Freddie Mac
breached some other contract with her. As such, her breach of contract claim in Count I
is due to be dismissed.
b. Unjust Enrichment
In Count Two, Plaintiff claims “Defendants were unjustly enriched at Your
Orator’s expense by obtaining a security interest through manipulative and deceptive
acts.” (Id., PageID. 50). The elements of an unjust enrichment claim under Alabama law
are: “(1) the defendant knowingly accepted and retained a benefit; (2) provided by
another; ... (3) who has a reasonable expectation of compensation.” Trimark Foodcraft,
LLC v. Selma Dev., LLC, Civ. A. No. 18-00259-JB-N, 2018 WL 5074686, at *4 (S.D.
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Ala. Aug. 31, 2018) (quoting Portofino Seaport Village, LLC v. Welch, 4 So.3d 1095,
1098 (Ala. 2008)). The problem here is that the benefit allegedly provided to Regions
and Freddie Mac in this case, which Plaintiff alleges was the “security interest” or
mortgage, was not provided by her, but by Heindl. Therefore, she cannot meet the
second element. And, because Plaintiff cannot have a reasonable expectation of
compensation for a security interest that she did not provide, she cannot meet the third.
Further, under Alabama law, unjust enrichment is an equitable doctrine that
applies only where there is no adequate remedy at law. See Mantiply v. Mantiply, 951
So. 2d 638, 654 (Ala. 2006). “[W]here an express contract exists, . . . the law generally
will not recognize an implied contract regarding the same subject matter.” Kennedy v.
Polar-BEK & Baker Wildwood P’ship, 682 So. 2d 443, 447 (Ala. 1996). In other words, a
claim for unjust enrichment is a claim for breach of an implied contract. Plaintiff’s claim
for unjust enrichment seems to arise from the Note and Mortgage, which are the same
contracts that presumably form the basis of her breach of contract claim. Because her
own pleadings make clear that she is seeking a remedy for money damages under her
breach of contract claim, Plaintiff’s claim for unjust enrichment under the same implied
or quasi-contract is not cognizable. See Rice v. JPMorgan Chase Bank, N.A.,No. 7:14-
cv-00318-LSC, 2014 WL 3889472, at *11 (N.D. Ala. Aug. 5, 2014) (dismissing unjust
enrichment claim premised on similar allegations that defendant was “unjustly enriched
by the payment of fees, insurance proceeds, and equity in the home” as barred by the
mortgage contract); Selman v. CitiMortgage, Inc., Civ. A. No. 12-0441-WS-B, 2013 WL
838193, at *13 (S.D. Ala. Mar. 5, 2013) (same). Accordingly, dismissal of Plaintiff’s
unjust enrichment claim is warranted.
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c. Fraud
Plaintiff alleges in Count III that “Defendants engaged in fraudulent activities by
misrepresenting the terms of the mortgage and the securitization process” and that
“Your Orator relied on these misrepresentations to her detriment, resulting in financial
loss and damage to her property rights.” (Doc. 6, PageID. 50). As Defendants argue,
Plaintiff’s allegations of fraud fail to satisfy the requirements of Federal Rule of Civil
Procedure 9(b). Rule 9(b) states that “[i]n all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particularity.” Fed. R.
Civ. P. 9(b) (emphasis added). “This Rule serves an important purpose in fraud actions
by alerting defendants to the precise misconduct with which they are charged and
protecting defendants against spurious charges of immoral and fraudulent behavior.”
Brooks v. Blue Cross & Blue Shield, 116 F.3d 1364, 1370–71 (11th Cir. 1997) (citation
omitted). To satisfy the heightened pleading standard, a plaintiff “must allege: (1) the
precise statements, documents, or misrepresentations made; (2) the time, place, and
person responsible for the statement; (3) the content and manner in which these
statements mislead the plaintiff; and (4) what the defendants gained by the alleged
fraud.” Id. at 1380–81.
Plaintiff’s allegations of fraud fall woefully short of the Rule 9(b) standard. She
alleges only that “Defendants,” without differentiating between any of the six
defendants, misrepresented “the terms of the mortgage and the securitization process.”
(Doc. 6, PageID. 50). She does not describe which specific defendants made any
alleged misrepresentation, the precise misrepresentations made, when they were
made, who made them, where they were made, how she (who was not even a party to
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the Note or Mortgage) was misled by them, or what “Defendants” gained by these
alleged misrepresentations. See Brooks, 116 F.3d at 1381 (“Rule 9(b) is not satisfied
where the complaint vaguely attributes the alleged fraudulent statements to
‘defendants.’”); Rolle v. Montgomery, No. CV-12-S-3313-NE, 2013 WL 12349544, at *6
(N.D. Ala. July 19, 2013) (“A plaintiff cannot lump together all of the defendants in their
allegations of fraud, but instead must make specific allegations with respect to each
defendant.”).
Additionally, any claim for fraud based on the “terms of the mortgage” is barred
by the subject statute of limitations. See Ala. Code § 6-2-38 (l) (1975) (“All actions for
any injury to the person or rights of another not arising from contract and not specifically
enumerated in this section must be brought within two years.”). In Alabama, claims
sounding in fraud or misrepresentation are subject to a two-year statute of limitations.
See, e.g., Ala. Code § 6-2-38 (l) (1975). As a matter of law, fraud is discoverable when
a person receives documents capable of putting her “on such notice that the fraud
reasonably should be discovered.” Liberty Nat’l Life Ins. v. Parker, 703 So. 2d 307, 308
(Ala. 1997). In this same vein, the Alabama Supreme Court has held the date when
“documents were received was the date the fraud was or should have been
discovered.” Colafrancesco v. Crown Pontiac-GMC, Inc., 485 So. 2d 1131, 1134 (Ala.
1986) (emphasis in original). The Mortgage was issued to Heindl in August 2015 -
roughly nine years before this lawsuit was filed. Under Alabama law, Heindl, and by
extension Plaintiff, was on notice of any alleged “misrepresentations” regarding the
terms of the Mortgage at that time, and any fraud claims were therefore barred as of
August 2017.
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d. Violation of the Truth in Lending Act
In Count IV, Plaintiff alleges that “Defendants failed to make required disclosures
under TILA” and these “actions violated 15 U.S.C. § 1635(f), entitling Your Orator to
rescission and damages.” (Doc. 6, PageID. 50). Plaintiff does not allege any facts in
support of her alleged TILA claims, relying instead on these legal conclusions. This
Court agrees with Defendants that, for this reason alone, Count IV fails to pass muster
under Twombly and Iqbal.
Second, Plaintiff’s claim is premised on an alleged violation of § 1635(f).
However, § 1635 expressly exempts “residential mortgage transaction[s]” from its ambit.
See, e.g., Dunn v. Bank of America, N.A., 844 F.3d 1002, 1005 (8th Cir. 2017)
(affirming dismissal of claim for rescission under § 1635 because there was “no doubt
that the loan agreement in question constitutes a residential mortgage transaction.”).
For this additional reason, any TILA claim based on the mortgage transaction
referenced in Plaintiff’s complaint fails as a matter of law.
Third, the TILA claim is time-barred. To recover damages under TILA, a plaintiff
must file an action “within one year from the date of the occurrence of the violation.” 15
U.S.C. § 1640(e). A “violation,” for purposes of the statute, occurs at the same time as
the loan transaction. In re Smith, 737 F.2d 1549, 1552 (11th Cir. 1984). To claim the
right of rescission under TILA, a plaintiff must file an action within “three years after the
date of the consummation of the transaction or upon the sale of the property, whichever
occurs first.” 15 U.S.C. § 1635(f). The loan at issue in this case closed in August of
2015, nearly nine years before Plaintiff filed her action. Accordingly, any TILA claim
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based on the mortgage transaction referenced in Plaintiff’s complaint fails as a matter of
law, for this reason, as well.
e. Unlawful Confiscation and Abuse of Eminent Domain
Finally, Plaintiff alleges in Count V that “MIS Inc. and Mo’s Towing LLC abused
principles of eminent domain by seizing private property without just compensation or
legal cause, constituting a violation of rights secured to Your Orator by the Fifth
Amendment.” (Doc. 6, PageID. 50). Plaintiff fails to state a claim against Regions and
Freddie Mac in Count V for multiple reasons. First, most obviously, Plaintiff does not
name Regions or Freddie Mac in Count V. Instead, it is clearly directed against “MIS
Inc. and Mo’s Towing LLC.” (Id.). Even if this Count had been directed against Regions
and Freddie Mac, it would not state a cause of action. Plaintiff makes clear she is
pursuing a right of action premised on a violation of the Takings Clause of the Fifth
Amendment. (Id.). Under the Takings Clause, “private property [shall not] be taken for
public use, without just compensation.” U.S. Const. amend. V. As the Note and
Mortgage documents and the Foreclosure Deed show, Plaintiff was not the owner of the
Property. Further, “the Takings Clause bars the federal government from taking private
property without paying for it; it has no application to private entities taking property
pursuant to a written contract through a state’s nonjudicial foreclosure process.” Key v.
JPMorgan Chase Bank, N.A., Civ. A. No. 1:17-cv-4341-MLB-CMS, 2018 WL 6818660,
at *6 (N.D. Ga. Mar. 23, 2018) (citing Stop the Beach Renourishment, Inc. v. Fla. Dep’t
of Env’l Prot., 560 U.S. 702, 713 (2010)). Plaintiff has not alleged that either of these
Defendants is a federal actor for purposes of the Takings Clause. See id. Thus, Plaintiff
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has failed to state a claim under the Takings Clause against Regions or Freddie Mac.
Accordingly, Count V is also due to be dismissed.
IV. CONCLUSION
Based upon the foregoing, it is recommended as follows:
1) Because Plaintiff cannot represent Heindl or any estate or trust that may exist
in this action in a pro se capacity, any and all claims purportedly asserted by Plaintiff on
behalf of Heindl, the estate of Heindl, or any trust be dismissed without prejudice;
2) The motion to dismiss filed by Defendants Mack and Herring be granted and
that Plaintiff’s amended complaint be dismissed, without prejudice, and with leave to
amend her complaint as to Defendants Mack and Herring as set forth above within 14
days from the date of the district court’s order; and
3) The motion to dismiss filed by Defendants Regions and Freddie Mac be
granted and that Plaintiff’s amended complaint against these Defendants be dismissed
with prejudice, as an amendment to assert any claims by Plaintiff Allison Kathleen
Leblanc, individually, against Regions and Freddie Mac arising from the events set forth
in this action would be futile.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the
manner provided by law. Any party who objects to this recommendation or anything in it
must, within fourteen (14) days of the date of service of this document, file specific
written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b); S.D. Ala. Gen.LR 72(c). The parties should note that under Eleventh Circuit
Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations
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contained in a report and recommendation in accordance with the provisions of 28
U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order
based on unobjected-to factual and legal conclusions if the party was informed of the
time period for objecting and the consequences on appeal for failing to object. In the
absence of a proper objection, however, the court may review on appeal for plain error if
necessary in the interests of justice.” 11th Cir. R. 3-1. To be specific, an objection must
identify the specific finding or recommendation to which objection is made, state the
basis for the objection, and specify the place in the Magistrate Judge’s report and
recommendation where the disputed determination is found. An objection that merely
incorporates by reference or refers to the briefing before the Magistrate Judge is not
specific.
DONE this 13th day of February, 2025.
/s/ P. Bradley Murray
UNITED STATES MAGISTRATE JUDGE
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