Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wirsche v. Bank of America, N.A.

United States District Court, Fifth Circuit

December 13, 2013

DEBRA WIRSCHE, Plaintiff,
v.
BANK OF AMERICA, N.A., et al, Defendants.

ORDER

MICAELA ALVAREZ, District Judge.

The Court now considers the self-styled "Defendants' Corrected Motion for More Definite Statement, "[1] filed by Bank of America, N.A. et al ("Defendants"), and the self-styled "Motion for Attorneys McGlinchey Stafford and Associates Jeffrey R. Seewald and Courtney L. Ebeier Show Authority to Proceed in State and Federal Action Against Plaintiff Pursuant Tex.R.Civ.P. 10, 11, 12, 13 and Fed.R.Civ.P. 11 (a) (b) (c), "[2] filed by Debra Wirsche ("Plaintiff").

After considering the motions, record, and relevant authorities, the Court GRANTS Defendants' motion for a more definite statement and DENIES Plaintiff's motion. To allow Plaintiff to file a more definite statement by January 2, 2014, the Court CONTINUES the pretrial conference as scheduled until January 14, 2014.

I. Defendants' Motion for a More Definite Statement

Defendants bring this motion for a more definite statement under Federal Rule of Civil Procedure 12(e), which provides that such a motion is appropriate where a pleading to which a response is required "is so vague or ambiguous that the party cannot reasonably prepare a response."[3] In requesting such relief, the movant should specify "the defects complained of and the details desired."[4]

Such motions are to be considered in the context of the liberal pleading standard of Rule 8.[5] As a result, it is well-established that motions for a more definite statement are generally disfavored and should not be allowed to serve as a substitute for discovery.[6] At the same time, they should be granted in order to correct a deficiency in a pleading that "fails to specify the allegations in a manner that provides sufficient notice."[7] The combination of these pleadings makes clear that a motion for more definite statement is "used to provide a remedy only for an unintelligible pleading rather than a correction for lack of detail."[8]

As the Court has previously noted, Plaintiff's complaint lacks sufficient detail to clarify whether her claims arose before or after her previous claim's dismissal. Thus, Defendants cannot discern whether to plead res judicata. [9] Further, Plaintiff has not identified any statutes or contract provisions violated by Defendants, or any common law cause of action. In particular, Plaintiff has not identified a specific provision of the Texas Constitution imposing a duty on Defendants to offer a modification of the terms of her loan.

Under Federal Rule of Civil Procedure 8, a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought. In other words, Plaintiff must plead facts specific enough to support a viable cause of action, not vague facts or conclusory legal allegations.[10] The cause of action must be recognized in the law. Unless Plaintiff meets this standard, the Court will dismiss her complaint for failure to state a claim upon which relief may be granted.[11] If Plaintiff does not amend her complaint, Defendants may move under Federal Rule of Procedure 41(b) to dismiss the complaint.

II. Plaintiff's Motion for Attorneys to Show Authority

Plaintiff attempts to force Defendants' counsel to prove the authority by which they represent Defendants. Plaintiff's reliance on Texas Rule of Civil Procedure 12 is inapposite. This Court applies Texas substantive law, but follows the Federal Rules of Civil Procedure, not the Texas Rules of Civil Procedure. "The line between procedural and substantive law is hazy, but no one doubts federal power over procedure."[12] Even if the Texas Rules of Civil Procedure did apply here, "the primary purpose of rule 12 is to enforce a party's right to know who authorized the suit, "[13] and Plaintiff demonstrates her awareness of her opponent's identity by listing Defendants' representatives at length.[14] Defendants' counsels have complied with the signature requirements of Federal Rule of Civil Procedure 11, and do not need to demonstrate any additional authority to represent their clients.

Plaintiff then wanders from the titular subject of her motion. In passing, she charges the Court lacks jurisdiction because no justiciable controversy exists, citing Aetna Life Insurance Co. v. Haworth . [15] Plaintiff brought suit to prevent foreclosure upon her home; in so doing, she herself alleges that a "case or controversy" suitable for judicial determination exists. Plaintiff herself must seek to establish a justiciable controversy or risk dismissal of her claim.

Next, Plaintiff alleges that she has not received "adequate notice of his adversary's claims and defenses."[16] Because Plaintiff brought this action, she is bringing legal claims against Defendants and must give adequate notice. If Plaintiff believes Defendant failed to give proper notice of intent to foreclose, then that is a different claim, and she must support it.

Plaintiff then repeats her claim that "NO CERTIFIED DOCUMENTS, including sworn affidavits, authenticating a claim have been entered into the county or state court by the Defendants...."[17] Again, Plaintiff must support her own claim, and cannot do so by alleging Defendants' lack of documents. On a distantly related note, Defendants have already shown, and Plaintiff does not contest, that they possess an interest in Plaintiff's home.[18]

Next, Plaintiff alleges the case "belongs in County and State court."[19] Plaintiff is correct that Defendants subjected themselves to Texas jurisdiction by doing business in Texas. But the Constitution of the United States allows diverse citizens - parties who are citizens of different States - to enter Federal court as well, if certain conditions set by Congress have been met.[20] Here both of those conditions have been met. While Plaintiff is correct that State and Federal ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.