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Jones v. U.S. Bank National Association

United States District Court, S.D. Ohio, Western Division

May 17, 2017

DERRYN NICOLE JONES, et al., Plaintiffs,
v.
U.S. BANK NATIONAL ASSOCIATION, et al., Defendants.

          Black, J.

          REPORT AND RECOMMENDATION

          KAREN L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.

         Pro se 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.[1]

         I. Facts and Procedural Background[2]

         In 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).[3] 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).

         In 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).

         In June 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).[4] The petition was dismissed in August 2012 for failure to file information. (See id.).

         In 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).

         In 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).

         In 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.).

         In June 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).

         In 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).

         In 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).

         Plaintiffs 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).

         Meanwhile, 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.).

         On 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).

         On 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).

         On 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).

         On July 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).

         Against 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).

         II. Legal Standard

         Rule 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 ...


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