NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 14-3758

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ROBERT M. BAUER, 

Appellant

v.

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; 

METLIFE HOME LOANS, A Division of Metlife Bank, N.A.; 

GREENTREE SERVICING LLC

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On Appeal from United States District Court 

for the Western District of Pennsylvania

(W.D. Pa. No. 1-14-cv-00079)

District Judge: Honorable J. Frederick Motz

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Submitted Pursuant to Third Circuit LAR 34.1(a)

June 1, 2015

Before: FISHER, JORDAN and SHWARTZ, Circuit Judges

(Filed: July 17, 2015)

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OPINION*

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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

FISHER, Circuit Judge

Robert M. Bauer appeals an order of the United States District Court for the 

Western District of Pennsylvania granting a motion brought by Green Tree Servicing 

LLC (“Green Tree”) to dismiss Bauer’s lawsuit on the basis that he lacks standing. We 

will affirm that order.

I.

We write principally for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we will set forth only those facts that are necessary 

to our analysis.

On September 15, 2008, Bauer executed a mortgage that named himself as the 

borrower and AmTrust Bank (“AmTrust”) as the lender, with Mortgage Electronic 

Registration Systems, Inc. (“MERS”), a separate corporation acting as a nominee for 

AmTrust and AmTrust’s successors and assigns, named as the mortgagee. The mortgage 

provided that Bauer mortgaged, granted, and conveyed “to MERS (solely as nominee for 

Lender and Lender’s successors and assigns) and to the successors and assigns of MERS” 

the property in question.1In 2009, AmTrust and its assets were placed into receivership 

by the Federal Deposit Insurance Corporation (“FDIC”), which then executed a purchase 

and assumption agreement with New York Community Bank (“NYCB”). Subsequently, 

in 2012, MERS assigned Bauer’s mortgage to MetLife Home Loans (“MetLife”), and in 

 

1 Appellant’s App. at 21.
3

2013, MetLife assigned Bauer’s mortgage to Green Tree. Bauer later defaulted on his

mortgage and, in February 2014, Green Tree filed a mortgage foreclosure complaint 

against Bauer in the Court of Common Pleas of Erie County.

Shortly thereafter, Bauer commenced this action in federal court, alleging that his 

mortgage had been transferred to NYCB after AmTrust entered FDIC receivership, that 

this receivership resulted in MERS being unable to assign his mortgage, and that the 

subsequent transfers from MERS to MetLife and from MetLife to Green Tree were 

invalid. Bauer sought a declaratory judgment that neither MetLife nor Green Tree “owns 

the mortgage” and that he was not indebted to MetLife and Green Tree. He also requested 

monetary damages, among other things. Green Tree moved to dismiss the action pursuant 

to Rule 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure; this motion was later 

joined by MERS. The District Court granted the motion and Bauer timely appealed.

II.

We have jurisdiction over this case pursuant to 28 U.S.C. § 1291. We exercise 

plenary review when a District Court dismisses a case for lack of subject matter 

jurisdiction or for failure to state a claim upon which relief can be granted.2 Because we 

will dismiss all of Bauer’s claims for lack of standing, we have no occasion to address the 

District Court’s other grounds for granting the motion to dismiss. 

 

2 Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009); Gould Elecs. Inc. v. 

United States, 220 F.3d 169, 176 (3d Cir. 2000).
4

III.

The District Court, in its memorandum accompanying the order granting Green 

Tree’s motion to dismiss, wrote that Bauer did not have standing to bring his lawsuit 

because he is not a party to the agreements assigning the mortgage nor is he a third-party 

beneficiary of the assignments. Bauer challenges this determination.

“To satisfy the Article III case or controversy requirement, a plaintiff must 

establish that he or she has suffered an ‘injury in fact’ that is both ‘concrete and 

particularized’ and ‘actual or imminent, not conjectural or hypothetical.’”3 Therefore, we 

must first determine whether Bauer has suffered or will suffer an injury in fact.

Bauer has not alleged an “invasion of a legally protected interest” and thus lacks 

the injury-in-fact required to show standing.4 He has an obligation to pay his loan on 

schedule, and to surrender his house in the event of an uncured default. His interest is in 

 

3 Doe ex rel. Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 542 (3d Cir. 2011) (quoting 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

4 Lujan, 504 U.S. at 560.
5

not being required to pay the same claim twice.

5 Because he makes no allegation of any 

invasion of that interest, he has not suffered an injury.6

Therefore, because Bauer has suffered no injury to a legally protectable interest by 

the assignment of the contract, we hold that Bauer does not have standing to raise his 

claims and the District Court properly granted Green Tree’s motion to dismiss under Rule 

12(b)(1).7

IV.

For the reasons set forth above, we will affirm the order of the District Court.

 

5 See 6A C.J.S. Assignments § 132 (2015).

6 See Rajamin v. Deutsche Bank Nat’l Trust Co., 757 F.3d 79, 85 (2d Cir. 2014) (finding 

lack of Article III standing when plaintiffs had “not pleaded or otherwise suggested that 

they ever paid defendants more than the amounts due [on their note], or that they ever 

received a bill or demand from any entity other than defendants,” or that there was “any 

threat or institution of foreclosure proceedings ... by any entity other than defendants”); 

JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1263 (Pa. Super. Ct. 2013) 

(“Pursuant to [Pennsylvania’s Uniform Commercial Code], a debtor who satisfies his 

obligations under a negotiable instrument cannot be required to do so again, even if the 

recipient of the debtor’s performance is not the holder of the note in question.”). But cf. 

Culhane v. Aurora Loan Servs. of Neb., 708 F.3d 282, 289 (1st Cir. 2013) (“The 

foreclosure of the plaintiff’s home is unquestionably a concrete and particularized injury 

to her.”).

7 Bauer also argues that the District Court erred in granting the motion to dismiss without 

having ruled on MERS’s motion to set aside the order of default entered against MERS 

under Federal Rule of Civil Procedure 55. Where a complaint is dismissed for lack of 

subject matter jurisdiction, as here, a plaintiff is not entitled to an entry of default against 

a defendant and therefore, the entry of default is a nullity and required no action by the 

District Court. Cf. Animal Sci. Prods., Inc. v. China Nat’l Metals & Minerals Imp. & Exp.

Corp., 596 F. Supp. 2d 842, 880 (D.N.J. 2008) (concluding that plaintiff’s complaint 

failed to establish subject matter jurisdiction and thus “granting [p]laintiff’s motion for 

default judgment would be wholly inappropriate”).