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Bey v. Brown

United States District Court, N.D. Ohio, Eastern Division

March 30, 2017

SAKINA MAYSAN BEY, fka Sheila M. Hayes, Plaintiff,
v.
JEFFREY J. BROWN, etc.,, Defendants.

          MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS. 24, 25, AND 26]

          Benita Y. Pearson United States District Judge.

         Pending are:

Defendant James Dimon's Motion to Dismiss the Amended Complaint (ECF No. 24);
Defendants Bruce Daryl, Keith Anderson, Denmar Dixon, and Gary Tillett's[1]Motion to Dismiss the Amended Complaint Under Fed.R.Civ.P. 12(b)(6) for Failure to State a Claim (ECF No. 25); and,
Defendants Ronald M. Faris and Michael R. Bourque, Jr.'s[2] Motion to Dismiss the Amended Complaint Under Rule 12(b)(6) (ECF No. 26).

         For the reasons that follow, the motions are granted.

         I. Background

         In February 2016, Pro Se Plaintiff Sakina Maysan Bey, fka Sheila M. Hayes, filed a seventy-eight-paragraph Complaint (ECF No. 1) against 11 Defendants alleging that her mortgage on 1422 Lansdowne Blvd., Youngstown, Ohio has been “securitized” and suggesting that Plaintiff did not receive “real money” for her mortgage. The Complaint (ECF No. 1) is remarkably similar to form complaints available for purchase on the Internet.[3] Defendants Bruce Daryl, Keith Anderson, Denmar Dixon, and Gary Tillett filed a Motion to Dismiss (ECF No. 17) that Plaintiff opposed, see ECF No. 19. Defendants Ronald M. Faris and Michael R. Bourque, Jr. also filed a Motion to Dismiss (ECF No. 21). These motions were denied without prejudice. See Order (ECF No. 29).

         On May 23, 2016, Plaintiff filed an Amended Complaint (ECF No. 20)[4] as of right, see Fed.R.Civ.P. 15(a)(1)(B), that dropped six of the defendants and some of the claims. The Amended Complaint (ECF No. 20) is against Defendants Bruce Daryl, Keith Anderson, Denmar Dixon, Ronald M. Faris, and James Dimon. The overriding theme of the Amended Complaint (ECF No. 20) focuses on an alleged campaign of unanswered document requests directed at the various corporate officers of the mortgagees appearing in the chain of title. It asserts claims for “Default of Estoppel by Acquiescence” (Count I), Fraud in the Factum (Count II), violations of the Ohio Corrupt Practices Act (“OCPA”) (Count III), unspecified “Crimes Against Humanity” (Count V), violation of the Truth in Lending Act (“TILA”) and the Home Ownership Equity Protection Act (“HOEPA”) (Count VI), violation of the Real Estate Settlement Procedures Act (“RESPA”) (Count VII), and seeks temporary and permanent injunctive relief (Count IV)[5] and rescission. Though Plaintiff alleges entitlement to relief under a broad range of claims, all of her claims arise out of the enforcement of Plaintiff's mortgage.

         The Amended Complaint (ECF No. 20) is related to a foreclosure action brought by Ditech Financial LLC (“Ditech”), f/k/a Green Tree Servicing LLC, against Plaintiff. On March 2, 2016, Ditech filed a Complaint for Foreclosure in the Mahoning County, Ohio Court of Common Pleas in Case No. 2016 CV 00680. It alleged that there is due and unpaid on a promissory note the sum of $23, 490.46 plus interest at the rate of 5.875% per annum from April 1, 2015. The foreclosure is in rem only because of Plaintiff's Chapter 7 bankruptcy discharge in the United States Bankruptcy Court for the Northern District of Ohio, being Case No. 07-40011-kw. In the state court proceeding, Ditech sought to foreclose on the real property located at 1422 Lansdowne Blvd., Youngstown, Ohio. The state court foreclosure action is now closed - on December 28, 2016, the court filed an In Rem Judgment Entry and Decree of Foreclosure.

         All five (5) remaining Defendants, all individually named corporate officers, have moved for dismissal of the Amended Complaint (ECF No. 20). Plaintiff only opposes Defendants Bruce Daryl, Keith Anderson, and Denmar Dixon's Motion to Dismiss (ECF No. 25). See Affidavit of Fact Plaintiff's Memorandum in Opposition (ECF No. 27).

         II. Standard of Review

         In deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court must take all well-pleaded allegations in the complaint as true and construe those allegations in a light most favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted). A cause of action fails to state a claim upon which relief may be granted when it lacks “plausibility in th[e] complaint.” Twombly, 550 U.S. at 564. A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Iqbal, 556 U.S. at 677-78 (quoting Fed.R.Civ.P. 8(a)(2)). Plaintiff is not required to include detailed factual allegations, but must provide more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id. at 557. It must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Twombly, 550 U.S. at 556. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. at 557 (brackets omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)). The Court “need not accept as true a legal conclusion couched as a factual allegation or an unwarranted factual inference.” Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 539 (6th Cir. 2012) (citations and internal quotation marks omitted).

         III. Analysis

         A. Defendants Bruce Daryl, Keith Anderson, and Denmar Dixon's Motion to Dismiss the Amended Complaint Under Fed.R.Civ.P. 12(b)(6) for Failure to State a Claim (ECF No. 25)

         1. Counts I and II are subject to dismissal due to Plaintiff's failure to meet the heightened pleading requirements of Fed.R.Civ.P. 9(b) with respect to the elements of fraud and “estoppel by aquiescence” does not otherwise qualify as an independent cause of action.

         Counts I and II of the Amended Complaint (ECF No. 20) are based on common law fraud, with Plaintiff alleging that “written statements as to alleged ownership of the Plaintiff's mortgage loan and the legal entitlement to demand monies/species from Plaintiff and institute foreclosure proceedings were false statements of material fact which were false when made and known by said Defendants to be false when made.” ECF No. 20 at PageID #: 320, ¶ 15. Coupled with the allegations in Count I, Plaintiff surmises that Defendants failure to respond to Plaintiff's barrage of document requests allegedly sent to Defendants prior to the litigation ...


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