Rivera v. Bank of America, N.A., No. 19-2868 (8th Cir. 2021)
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After BANA canceled the foreclosure sale of plaintiff's residence, he filed an amended complaint alleging claims of wrongful foreclosure, violation of the Missouri Merchandising Practices Act (MMPA), and negligent misrepresentation. The district court denied BANA's motion for dismissal for failure to state a claim and denied plaintiff's request for leave to file an amended complaint, entering an order dismissing the case with prejudice.
The Eighth Circuit affirmed, construing plaintiff's pro se motion for a temporary restraining order as a petition initiating a civil action against BANA under Missouri law, and determining that plaintiff's conduct throughout the course of litigation amounts to an acknowledgement that his filing before the St. Louis County Circuit Court was both a motion and a petition. The court explained that when the district court dissolved the temporary restraining order, a live case and controversy remained in the form of plaintiff's claims. Therefore, this case is not moot. The court also concluded that the district court did not err in dismissing plaintiff's negligent misrepresentation claim for failure to state a claim. Finally, the court concluded that the district court did not abuse its discretion in denying plaintiff leave to again amend his complaint.
Court Description: [Shepherd, Author, with Colloton and Wollman, Circuit Judges] Civil case - Foreclosures. The pleading plaintiff filed with state court was both a motion and a petition under Missouri law, and when defendant moved the matter to federal court and obtained an order dissolving the state court's temporary restraining order, there was still a live case or controversy before the district court on plaintiff's claims for wrongful foreclosure, violation of the Missouri Merchandising Practices Act and negligent misrepresentation, and the court properly considered defendant's motion to dismiss for failure to state a claim; the court would not consider an argument not made to the district court, and the district court properly dismissed plaintiff's negligent misrepresentation claim for failure to state a claim; the district court did not abuse its discretion by denying plaintiff's motion for leave to file a second amended complaint where the request was raised in two lines in a response to a motion to dismiss and did not present any grounds or argument for the request.
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