Thompson v. Commerce Bancshares Incorporated et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EDGAR MILTON THOMPSON,
Plaintiff,
v.
COMMERCE BANCSHARES INCORPORATED,
et al.,
Defendants.
Case No. 25-1295-KHV-BGS
REPORT AND RECOMMENDATION
FOR DISMISSAL OF COMPLAINT
Plaintiff Edgar Thompson filed this action pro se1 . In conjunction with his federal court
complaint (Doc. 1), Plaintiff filed a motion to proceed without prepayment of fees, which is a
motion requesting leave for Plaintiff to proceed in forma pauperis (“IFP”). Doc. 3. After review of
Plaintiff’s complaint, however, the Court recommends to the District Court that Plaintiff’s federal
claims be dismissed for failure to state a claim upon which relief can be granted and recommends
that the District Judge decline to exercise jurisdiction over any state-law claims and dismiss those
claims without prejudice.
I. 	Standard of Review for IFP Complaints
When a Plaintiff proceeds IFP, the court may screen the Complaint under 28 U.S.C. §
1915(e)(2). The court “shall dismiss” an in forma pauperis case “at any time if the court determines
that … the action or appeal – (i) is frivolous or malicious; (ii) fails to state a claim on which relief
may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.”
1 Plaintiff proceeds pro se. The Court construes his filings liberally and holds him to a less stringent standard
than trained lawyers. See Haines v. Kerner, 404 U.S. 519, 520-521 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). But the Court does not assume the role of advocate for the pro se litigant. Id., at 1110.
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28 U.S.C. § 1915(e)(2). “When a plaintiff is proceeding in forma pauperis, a court has a duty to
review the complaint to ensure a proper balance between these competing interests.” Mitchell v.
Deseret Health Care Facility, No. 13-1360-RDR-KGG, 2013 WL 5797609, at *1 (D. Kan. Sept. 30,
2013). The purpose of § 1915(e) is “the prevention of abusive or capricious litigation.” Harris v.
Campbell, 804 F. Supp. 153, 155 (D. Kan. 1992) (internal citation omitted) (discussing similar
language contained in § 1915(d), prior to the 1996 amendment). Sua sponte dismissal under § 1915(d)
may be appropriate when “on the face of the complaint it clearly appears that the action is frivolous
or malicious.” Hall v. Bellmon, 935 F.2d 1106, 1108 (10th Cir. 1991) (citing Henriksen v. Bentley, 644
F.2d 852, 854 (10th Cir.1981)).
In addition, the court also has an obligation to ensure it has subject matter jurisdiction to
hear and resolve the action. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the action.”). The court may raise the issue
sua sponte. See 1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006).
Federal courts are courts of limited jurisdiction and may only exercise jurisdiction when authorized.
Pfuetze v. Kansas, No. 10-1139-CM-GLR, 2010 WL 3892243, at *3 (D. Kan. Sept. 29, 2010), aff'd, 420
F. App'x 854 (10th Cir. 2011). When it becomes apparent that subject matter jurisdiction is lacking,
the court must dismiss the case regardless of the stage of the proceeding. Fish v. Kobach, 189 F.
Supp. 3d 1107, 1124–25 (D. Kan. 2016). The court has a duty to raise and resolve issues of subject
matter jurisdiction, even if no party has objected to the exercise of jurisdiction. Wachovia Bank v.
Schmidt, 546 U.S. 303, 305 (2006). To determine whether a plaintiff has adequately alleged subject-
matter jurisdiction, the court looks to the face of the complaint. Penteco Corp. v. Union Gas Sys., Inc.,
929 F.2d 1519, 1521 (10th Cir. 1991).
A pro se Plaintiff’s complaint must still “set forth the grounds of plaintiff’s entitlement to
relief through more than labels, conclusions, and a formulaic recitation of the elements of a cause of
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action.” Fisher v. Lynch, 531 F.Supp.2d 1253, 1260 (D. Kan. 2008) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 127 S. Ct. 1955, 1964–65, 167 L.Ed.2d 929 (2007), and Hall, 935 F.2d at 1110
(holding that a plaintiff need not precisely state each element, but must plead minimal factual
allegations on those material elements that must be proven)). “In other words, plaintiff must allege
sufficient facts to state a claim which is plausible – rather than merely conceivable – on its face.” Id.
(citing Twombly, 550 U.S. at 570, 127 S. Ct. at 1974). See also Bemis, 500 F.3d at 1218 (stating that
factual allegations in the complaint must establish “above the speculative level” that plaintiff is
entitled to relief).
The Court’s relaxed scrutiny of the pro se plaintiff’s pleadings “does not relieve [him] of the
burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall, 935 F.2d
at 1110. A pro se plaintiff’s pleading conclusory statements is insufficient to state a claim because
no special legal training is required to “recount the facts surrounding his alleged injury[.]” Id. See
also Olson v. Carmack, 641 Fed. App’x. 822, 825 (10th Cir. 2016). If this Court finds, after construing
the allegations in Plaintiff’s complaint liberally, that Plaintiff has failed to state a claim upon which
relief may be granted, the court is compelled to recommend that the action be dismissed.
II. 	Plaintiff’s Claims and Factual Allegations
Most of the following facts come from Plaintiff's Complaint and attached exhibits. See
generally Docs. 1, 5. For § 1915 screening purposes, the Court accepts the Plaintiff's allegations as
true and construes all reasonable inferences drawn from those allegations in the light most favorable
to the Plaintiff. See Kay, 500 F.3d at 1217-18.
On December 23, 2025, pro se Plaintiff Edgar Thompson initiated this action by filing a civil
complaint using the Court’s standard form. Doc. 1. Numerous exhibits were filed in support of the
complaint. See Doc. 5. The complaint alleges that Defendants Commerce Bancshares Incorporated,
First American Title, and HomEq Servicing engaged in fraud and constitutional violations in
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connection with a residential mortgage loan on Plaintiff’s home in Wichita, Kansas. The complaint
seeks injunctive and declaratory relief, as well as monetary damages.
According to the complaint and its attached exhibits, Plaintiff obtained a residential
mortgage loan for his home in March 2005. The exhibits include a disclosure form titled “Notice to
Customer Required by Law and Federal Reserve Regulation Z,” which reflects a loan amount of
$10,000, an amount financed of $9,481.12, monthly payments of $102.78, and a balloon payment
due in April 2020. Based on these terms, Plaintiff alleges that the mortgage should have been fully
paid off by April 1, 2020, and that any continued assertion of indebtedness after that date is
fraudulent. In his motion for a temporary restraining order, he also attached a Truth in Lending Act
disclosure dated March 11, 2005, issued by Meritage Mortgage Corporation which reflects the
original loan amount, payment schedule, and a balloon payment due in April 2020.2 Plaintiff further
alleges that, at some point after the loan was executed, servicing of the mortgage was transferred to
Commerce Bank without his knowledge or consent.
The exhibits also reflect that, notwithstanding Plaintiff’s belief that the loan had been
satisfied, Defendants continued to treat the loan as active. Plaintiff attaches a Mortgage Default
Notice dated November 25, 2025, issued by Commerce Bank Mortgage, which states that Plaintiff
was in default on the loan in the amount of $13,902.49 and that failure to cure the default by
December 25, 2025, could result in acceleration of the debt and foreclosure proceedings. The notice
further advised Plaintiff of his right to contest the default or reinstate the loan prior to a foreclosure
sale. Plaintiff disputes the validity of the default notice and asserts that any claimed delinquency is
the product of fraud rather than missed payments. In support, Plaintiff attaches county tax records
reflecting that he has continued to pay real estate taxes on the property over an extended period.
Those records show recurring tax payments from at least 2005 through 2024. Plaintiff contends that
2 The District Judge denied as moot the motion for a temporary restraining order on January 5, 2026.
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his continued possession of the property and payment of taxes demonstrate his ownership interest
and undermine Defendants’ claims of default.
Beginning in 2025, Plaintiff sent a series of written communications to Commerce Bank
Mortgage and its representatives asserting what he characterizes as “partial claims” and demands for
correction of the loan account. In those submissions, Plaintiff alleged that Defendants’ conduct
amounted to constitutional violations, housing discrimination, and racially motivated misconduct.
He asserted that the original mortgage amount, payment history, and payoff date conclusively
established that the loan obligation had been satisfied and that any further enforcement activity was
unlawful. Plaintiff also submitted complaints to federal agencies, including the United States
Department of Justice and the Department of Housing and Urban Development, alleging housing
discrimination and civil-rights violations arising from Defendants’ handling of his mortgage. The
exhibits include confirmation pages indicating that those complaints were received, but do not
reflect that any agency made findings or took enforcement action on Plaintiff’s behalf.
Plaintiff characterizes Defendants’ actions as part of an ongoing scheme designed to prevent
him from fully owning his home. He alleges that Defendants’ continued assertion of a mortgage
balance, issuance of default notices, and pursuit of enforcement remedies deprive him of property
without due process of law. He goes on to contend that Defendants engaged in improper
accounting practices, misstated loan balances, and manipulated payment calculations to prevent him
from satisfying the mortgage obligation. He asserts that these actions constitute “continual criminal
fraud” and violate federal criminal statutes, including 18 U.S.C. § 1010, as well as his constitutional
right to due process. Plaintiff requests that the Court enter restraining and injunctive relief
preventing foreclosure activity and declare that his mortgage has been paid in full. He further seeks
compensatory and punitive damages based on the alleged fraud and constitutional violations.
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For the reasons stated below, the undersigned Magistrate Judge recommends that Plaintiff’s
claims be dismissed.
III. 	Analysis
As an initial matter, the Court notes that Plaintiff does not clearly identify discrete causes of
action, but instead makes generalized references to various federal statutes, constitutional provisions,
and common-law theories. Construed liberally, the complaint appears to assert claims sounding in
fraud, due process violations, and other claims arising from the mortgage transaction and
subsequent enforcement efforts. Because the complaint lacks clarity as to the precise legal bases for
relief, the Court addresses the claims by category. First, the Court explains why Plaintiff’s purported
federal claims fail to state a claim upon which relief may be granted. The Court then addresses
Plaintiff’s remaining state-law claims and explains why it should decline to exercise supplemental
jurisdiction over those claims.
a. 	Plaintiff’s Federal Claims
Plaintiff purports to invoke federal jurisdiction by referencing various federal statutes and
constitutional provisions, including claims framed as fraud and due process violations. Although the
complaint does not clearly articulate the elements of any specific federal cause of action, it does
mention the Fifth and Fourteenth Amendment as a basis for jurisdiction. For purposes of this
Report and Recommendation, the Court construes the complaint as attempting to assert a due
process claim under the Fifth and Fourteenth Amendment. 3
3 In his complaint, Plaintiff alleges criminal fraud and cites to 18 U.S.C. § 1010. He also attempts to invoke
that statute as a basis of jurisdiction. Criminal statutes do not provide for a private right of action and are
unenforceable through a civil action. Andrews v. Heaton, 483 F.3d 1070, 1076-77 (10th Cir. 2007) (affirming
dismissal of plaintiff’s lawsuit alleging violations of various criminal statutes). To the extent Plaintiff is
attempting to enforce criminal statutes, the undersigned recommends those claims be dismissed because
they do not provide a civil cause of action. Id.
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Due process violations under the Fifth and Fourteenth Amendments require a defendant to
be a state actor. Smith v. Kitchen, 156 F.3d 1025, 1028 (10th Cir. 1997) (stating that due process
claims under the Fifth Amendment do not apply to private actors); Gray v. Univ. of Colorado Hosp.
Auth., 672 F.3d 909, 927-28 (10th Cir. 2012) (stating same as to Fourteenth Amendment). The Fifth
Amendment applies to actions by the federal government, while the Fourteenth Amendment applies
to actions by state governments. In either context, a private party is subject to constitutional due
process requirements only if its conduct can fairly be attributed to the government—that is, if the
private party may be deemed a “state actor.” Smith, 156 F.3d at 1028.
Here, the complaint does not allege facts suggesting that any Defendant’s conduct is
attributable to either the federal or a state government. All Defendants are private financial
institutions or private actors, and nothing in the pleadings supports treating them as state actors
under any recognized test. See Gilmore v. Salt Lake Cmty. Action Program, 710 F.2d 632, 635–36 (10th
Cir. 1983) (applying the state action tests to find no federal action). Moreover, the complaint does
not allege that Plaintiff was denied notice or an opportunity to be heard; rather, the allegations
reflect a dispute with private entities over a mortgage transaction. Therefore, Plaintiff’s federal
causes of action fail, and the undersigned recommends that they be dismissed for failure to state a
claim upon which relief may be granted.
b. 	Plaintiff’s State Law Claims
In addition to his federal claims, Plaintiff appears to assert various claims arising under state
law, including claims for fraud and breach of contract. Because all federal claims are subject to
dismissal at the screening stage, the Court must determine whether to exercise supplemental
jurisdiction over Plaintiff’s remaining state-law claims.4
4 The Court does not appear to have diversity jurisdiction because the amount in controversy is less than
$75,000. See 28 U.S.C. § 1332(a) (stating that federal courts have jurisdiction between citizens of different
states when the amount in controversy exceeds $75,000). The amount in controversy requirement is an
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Under 28 U.S.C. § 1367, a federal court may exercise supplemental jurisdiction over state-law
claims that are part of the same case or controversy as claims over which it has original jurisdiction.
However, § 1367(c) permits a court to decline to exercise supplemental jurisdiction where, among
other circumstances, it has dismissed all claims over which it has original jurisdiction. In deciding
whether to retain or decline jurisdiction over remaining state-law claims, the court considers the
interests of judicial economy, convenience, and fairness. Tufaro v. Oklahoma ex rel. Bd. of Regents of
Univ. of Oklahoma, 107 F.4th 1121, 1141 (10th Cir. 2024). When federal claims are dismissed at an
early stage of the proceedings, these factors ordinarily weigh in favor of declining supplemental
jurisdiction and dismissing the state-law claims without prejudice. Johnston v. Prairie View, Inc., No.
2:19-CV-02041-HLT, 2020 WL 2025499, at *10 (D. Kan. Apr. 27, 2020).
Here, Plaintiff’s federal claims are subject to dismissal at the screening stage, and therefore,
the Court should decline to exercise jurisdiction over any remaining state law claims. Federal district
courts are not courts of general mortgage supervision. Plaintiff is effectively asking the federal court
to adjudicate the correctness of a loan payoff dispute, declare the mortgage satisfied, and enjoin a
lender from exercising contractual remedies. None of which warrant federal intervention.
Moreover, Plaintiff’s federal claims are facing dismissal at an early stage of the proceedings which
favors declining supplemental jurisdiction. See Johnston, 2020 WL 2025499, at *10. Therefore, the
undersigned Magistrate Judge recommends that the Court decline to exercise supplemental
jurisdiction over his state law claims under § 1367(c).
estimate of the amount that will be put at issue in the course of the litigation. McPhail v. Deere & Co., 529
F.3d 947, 956 (10th Cir. 2008). Here, Plaintiff’s own exhibits demonstrate that he is in default in the amount
of $13,902. According to his complaint, his original home mortgage was $9,481.12. There appear to be no
other monetary damages claimed anywhere in the complaint. Moreover, most of the relief sought is
injunctive and declaratory in nature. Thus, the Court does not have diversity jurisdiction over the state law
claims. Even if the Court were inclined to consider his state-law claims, assertions of fraud must be pleaded
with particularity, and Plaintiff’s complaint falls well short of that standard. See Fed. R. Civ. P. 9(b)
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For the reasons explained above, the undersigned Magistrate Judge recommends that the
District Judge dismiss Plaintiff’s federal claims under 28 U.S.C. § 1915 (e)(2)(B)(ii) because
Plaintiff’s federal claims do not state a viable cause of action, and the Court should decline to
exercise jurisdiction over his state law claims and dismiss those claims without prejudice for lack
of jurisdiction.
IT IS THEREFORE RECOMMENDED to the District Court that Plaintiff’s complaint
(Doc. 1) be DISMISSED for failure to state a claim.
IT IS ORDERED that a copy of the recommendation shall be sent to Plaintiff via certified
mail. Pursuant to 28 U.S.C. § 636(b)(1), Fed R. Civ. P. 72, and D. Kan, Rule 72.1.4, Plaintiff shall
have fourteen (14) days after service of a copy of these proposed findings and recommendations to
serve and file with the U.S. District Judge assigned to the case, any written objections to the findings
of fact, conclusions of law, or recommendations of the undersigned Magistrate Judge. Plaintiff’s
failure to file such written, specific objections within the 14-day period will bar appellate review of
the proposed findings of fact, conclusions of law, and the recommended disposition. See Moore v.
United States, 950 F.2d 656 (10th Cir. 1991).
IT IS SO RECOMMENDED.
Dated January 12, 2026, at Wichita, Kansas.
/s/ B ROOKS S EVERSON
Brooks G. Severson
United States Magistrate Judge
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