United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.
plaintiffs Derryn and Dwight Jones bring this action under
the Fair Debt Collection Practices Act ("FDCPA"),
15 U.S.C. § 1692 et seq.; the Racketeer Influenced and
Corrupt Organization Act ("RICO"), 18 U.S.C. §
1961 et seq.; and Ohio state law. This matter is before the
Court on the motion to dismiss of defendants U.S. Bank, N.A.,
as Trustee for Credit Suisse First Boston Mortgage Securities
Corp., CSMS Mortgage Backed Pass Through Certificates Series
2006-2 ("U.S. Bank"), Wells Fargo Bank, N.A. d/b/a
America's Servicing Company ("Wells Fargo"),
Thompson Hine, LLP, and Scott A. King (Doc. 35) and the
motion to dismiss of defendants Lerner, Sampson &
Rothfuss and Matthew I. McKelvey (Doc. 37). Plaintiffs have
not responded to the motions to dismiss.
Facts and Procedural Background
December 2005, plaintiff Derryn Jones executed a note to
MortgagelT, Inc. in return for a home loan in the principal
amount of $123, 200.00. (Note, Exh. A to Exh. A-2, Doc. 16-2
at 6-9). Plaintiffs granted MortgagelT a mortgage
on their residence to secure the note. (Mortgage, Exh. B to
Exh. A-2, Doc. 16-2 at 10-27). In January 2012, themortg age
was assigned to "US Bank National Association, as
Trustee for CSMC Mortgage-Backed Pass-Through Certificates,
Series 2006-2." (Corporate Assignment of Mortgage, Exh.
C to Exh. A-2, Doc. 16-2 at 28-30).
March 2012, U.S. Bank filed a foreclosure complaint against
plaintiffs in the Hamilton County, Ohio Court of Common
Pleas. (Complaint in Foreclosure, Exh. A-2, Doc. 16-2 at
2-5). U.S. Bank was represented on the foreclosure complaint
by Matthew I. McKelvey, an attorney with Lerner, Sampson
& Rothfuss. (See Id. at 5).
2012, plaintiffs filed a pro se bankruptcy petition under
Chapter 13. (See Docket Sheet for Case No.
1:12-bk-13483, Exh. D, Doc. 13-4 at l). The petition was
dismissed in August 2012 for failure to file information.
October 2012, plaintiffs filed an amended answer and
counterclaim in the foreclosure action. (Amended Answer,
Affirmative Defenses and a Counterclaim for Recoupment, Exh.
F-l, Doc. 35-1 at 1-37). In this filing, plaintiffs raised a
variety of arguments concerning U.S. Bank's lack of
standing or capacity and also alleged that Lerner, Sampson
& Rothfuss had violated the FDCPA by failing to verify
the amount of the debt. (See generally Id. at 8-34).
November 2012, U.S. Bank moved to dismiss the counterclaim.
(Motion to Dismiss, Exh. F-2, Doc. 35-2). U.S. Bank was
represented on the motion to dismiss by Scott A. King, an
attorney with Thompson Hine. (See Id. at 2).
April 2013, plaintiff Dwight Jones again filed a pro se
bankruptcy petition under Chapter 13. (See Docket
Sheet for Case No. 1:13-bk-l 1966, Exh. E, Doc. 13-5 at 1).
The petition was dismissed in August 2013 for failure to make
plan payments. (See id.).
2013, the mortgage was assigned from "US Bank National
Association, as Trustee for CSMC Mortgage Backed Pass-Through
Certificates, Series 2006-2, by Wells Fargo Bank, N.A., as
Their Attorney-in-Fact" to "U.S. Bank National
Association, as Trustee for Credit Suisse First Boston
Mortgage Securities Corp., CSMC Mortgage-Backed Pass-Through
Certificates, Series 2006-2." (Corporate Assignment of
Mortgage, Exh. F, Doc. 13-6 at 1).
February 2014, plaintiff Dwight Jones filed an affidavit in
opposition to a motion for summary judgment in the state
foreclosure action. (Affidavit in Support of Opposition to
Renewed Motion for Summary Judgment and Specific Negative
Averment, Exh. A-3, Doc. 16-3). In relevant part, plaintiff
asserted that due to fraud related to the assignment of the
loan to U.S. Bank, the state court lacked jurisdiction over
the foreclosure action. (See Id. at 7). Plaintiff
attached a Notice of Revocation of Power of Attorney, in
which plaintiffs asserted that they had discovered
"various elements of fraud, fraudulent inducement,
fraudulent misrepresentation, entrapment, and
nondisclosure" on the part of U.S. Bank and Lerner,
Sampson & Rothfuss, among others. (See Notice of
Revocation of Power of Attorney, Exh. O to Exh. A-3, Doc.
16-3 at 73).
March 2014, the magistrate in the state foreclosure action
found that the note was properly assigned to U.S. Bank, that
the note and mortgage were valid, and that U.S. Bank had
standing to foreclose. (Magistrate's Decision
(Foreclosure), Exh. A-4, Doc. 16-4 at 2-4). In September
2014, the state court adopted the magistrate's decision
and entered summary judgment in U.S. Bank's favor in the
foreclosure action. (Entry Granting Motion for Summary
Judgment and Decree in Foreclosure, Exh. A-5, Doc. 16-5). The
state court's order was drafted by Mr. McKelvey of
Lerner, Sampson & Rothfuss. (See Id. at 1, 5).
The order indicated that this draft had been
"submitted" to plaintiffs before it was filed with
the court. (See Id. at 5).
appealed the foreclosure action to the First District Ohio
Court of Appeals. (See Entry of Dismissal, Exh. B,
Doc. 16-6). The First District dismissed the appeal for lack
of prosecution in January 2015 because plaintiffs failed to
file an appellate brief. (See id.). Plaintiffs filed
an appeal to the Supreme Court of Ohio, which declined
jurisdiction in July 2015. (See Case Information for
Case No. GEN-2015-0491, Exh. C, Doc. 16-7).
Ms. Jones again filed a pro se bankruptcy petition under
Chapter 13 in December 2014. (See Docket Sheet for
Case No. 1:14-bk-14978, Exh. J, Doc. 13-10 at 1). The
bankruptcy court dismissed the petition in March 2015 for Ms.
Jones' failure to pay the filing fee. (See id.).
August 24, 2015, Ms. Jones filed another pro se bankruptcy
petition under Chapter 13. (See In re Derryn Jones,
CM/ECF for U.S. Bankr. Court for S.D. Ohio, Case No.
1:15-bk-13268, Doc. 1). Edward J. Boll of Lerner, Sampson
& Rothfuss entered an appearance and a request for notice
on behalf of Wells Fargo. (Id., Doc. 18).
December 7, 2015, Ms. Jones filed an adversary proceeding in
the bankruptcy case against Wells Fargo and U.S. Bank.
(See Adversary Proceeding Complaint, Exh. D-2, Doc.
16-9). In this complaint, Ms. Jones alleged that U.S. Bank
violated the FDCPA by trying to collect on her home loan debt
when the assignment of the mortgage to U.S. Bank was
"materially false and misrepresented that
Defendants' clients own a note and mortgage of plaintiff
s." (Id. at 9). Scott King of Thompson Hine
appeared on behalf of U.S. Bank and filed a motion to
dismiss. (See Jones v. Wells Fargo Bank, N.A.,
CM/ECF for U.S. Bankr. Court for S.D. Ohio, Case No.
1:15-ap-l 116, Doc. 5). On January 4, 2016, the bankruptcy
court dismissed Ms. Jones' bankruptcy petition with
prejudice finding that the petition was not filed in good
faith. (Order Granting Motion to Dismiss, Exh. D-4, Doc.
16-11 at 1-2). In dismissing Ms. Jones' petition, the
bankruptcy court barred Ms. Jones "or anyone having or
purporting to have a possessory interest" in
plaintiffs' residence from filing for bankruptcy
protection for a period of 180 days. (Id. at 2). On
January 7, 2016, the bankruptcy court dismissed the complaint
in the adversary proceeding based on the dismissal of the
primary bankruptcy case. (See Jones, Case No.
1:15-ap-1116, Doc. 7).
January 26, 2016, plaintiffs filed a mandamus action in the
Supreme Court of Ohio against Thompson Hine, Mr. King,
Lerner, Sampson & Rothfuss, and Mr. McKelvey.
(See Docket Sheet for Case No. 2016-0124, Exh. M,
Doc. 13-13 at 1). The Supreme Court of Ohio dismissed the
action in May 2016 and denied plaintiffs' motion for
reconsideration in June 2016. (See Id. at 2-3).
26, 2016, Mr. Jones filed a pro se bankruptcy petition under
Chapter 13. (See In re Dwight Jones, CM/ECF
for U.S. Bankr. Court for S.D. Ohio, Case No. 1:16-bk-l 2757,
Doc. 1). On October 26, 2016, the bankruptcy court dismissed
Mr. Jones' bankruptcy case for failure to comply with
court orders and barred plaintiffs from filing for bankruptcy
protection for a period of 180 days. (Order Dismissing Case,
Exh. E-2, Doc. 16-13).
this procedural background, plaintiffs filed the instant
action on July 25, 2016. (Doc. 1). In November 2016,
plaintiffs filed the amended complaint that is the subject of
the instant motions to dismiss. (Doc. 27).
12(b)(6) permits dismissal of a complaint for "failure
to state a claim upon which relief can be granted."
Fed.R.Civ.P. 12(b)(6). The complaint must contain a
"short and plain statement of the claim showing that the
pleader is entitled to relief." Fed.R.Civ.P. 8(a). The
plaintiffs ground for relief must entail more than
"labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do." Bell
Ail Corp. v. Twombfy,550 U.S. 544, 555 (2007). The
plaintiff has satisfied Rule 12(b)(6) if he has pled enough
facts "to state a claim to relief that is plausible on
its face." Id. at 570. Specific facts are not
necessary and the pleader is only required to give fair
notice of the claim and the grounds upon which it rests.
Sensations, Inc. v. City of Grand Rapids, 526 F.3d
291, 295 (6th Cir. 2008). The Court must hold pro se
pleadings to less ...