United States District Court, N.D. Ohio, Eastern Division
SAKINA MAYSAN BEY, fka Sheila M. Hayes, Plaintiff,
JEFFREY J. BROWN, etc.,, Defendants.
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS.
24, 25, AND 26]
Y. Pearson United States District Judge.
Defendant James Dimon's Motion to Dismiss the Amended
Complaint (ECF No. 24);
Defendants Bruce Daryl, Keith Anderson, Denmar Dixon, and
Gary Tillett'sMotion 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 Motion to Dismiss the Amended Complaint
Under Rule 12(b)(6) (ECF No. 26).
reasons that follow, the motions are granted.
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. 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).
23, 2016, Plaintiff filed an Amended Complaint (ECF No.
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) 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
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
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).
Standard of Review
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,
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).
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.
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.
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