Roers v. Bank of America, N.A.

Background

Alan J. Roers initially sued Bank of America, N.A. and Carrington Mortgage Services, LLC in state court concerning foreclosure and sheriff’s-sale issues involving two properties. Carrington removed the case to federal court. In an earlier order, the court denied Bank of America’s motion to dismiss and granted Carrington’s motion for judgment on the pleadings, dismissing Roers’s claims against Carrington without prejudice because the claims concerning one property were not ripe for review.

The court’s scheduling order set a deadline for motions to amend the pleadings. After Roers requested more time, the court extended the deadline and told him that his deadline to file a motion for leave to amend was December 18, 2023. The court also directed him to comply with Federal Rule of Civil Procedure 15 and District of Minnesota Local Rule 15.1.

Roers filed an Amended Complaint on December 18, 2023, but he did not file a motion for leave to amend. The Amended Complaint asserted claims that Bank of America wrongfully foreclosed on the 5412 Benton Avenue property, violated the Real Estate Settlement Procedures Act and the Fair Credit Reporting Act, and should have the sheriff’s sale set aside. It also sought attorney’s fees and expenses.

Motion to Strike

Bank of America moved to strike the Amended Complaint under Federal Rule of Civil Procedure 12(f). It argued that Roers had not obtained permission to amend and that the omission prevented Bank of America from responding to the proposed amendments. Roers said he believed the court had granted him permission when it extended the amendment deadline and canceled a later hearing. He also objected that Bank of America waited almost three months to file its motion.

The court explained that a party may amend a pleading without permission only within the time allowed by Rule 15(a)(1). More than 21 days had passed since Roers served the original Complaint and since Bank of America served its answer. Roers therefore needed either Bank of America’s written consent or the court’s permission under Rule 15(a)(2).

The court held that filing an amended complaint without the required permission was legally ineffective. It also found that Roers did not comply with Local Rule 15.1 because he did not file a motion to amend with a complete proposed amended complaint and a marked version showing the changes from the operative complaint. He also did not comply with the court’s December 4, 2023 order requiring a motion for leave to amend.

The court considered Roers’s self-represented status and his explanation that he misunderstood the canceled hearing. It concluded, however, that the hearing minutes clearly stated that the deadline was to file a motion for leave to amend, not the amended complaint itself. The court also found that Bank of America’s motion was timely under Rule 12(f)(2) because it was filed before Bank of America responded to the Amended Complaint, although the court noted that Bank of America did not explain its delay in filing the motion.

Ruling

Judge Elizabeth Cowan Wright granted Bank of America’s Motion to Strike Amended Complaint. The court ordered that Roers’s Amended Complaint be stricken from the record and that the Clerk remove it from the docket.

The court gave Roers one final opportunity to file a motion for leave to file an amended complaint. By April 29, 2024, he was required to file the motion, a proposed amended complaint that was complete in itself and did not incorporate the earlier complaint, and a marked version showing the changes as required by Local Rule 15.1. The court stated that it would decide the motion on the papers unless it determined that a hearing was necessary.

The court also ordered that Bank of America, if it sought an extension of the schedule, must file its own motion or a joint motion with Roers by April 29, 2024.