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Jacobs v. U.S. Bank and Trust N.A.

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

December 20, 2017

Barbara Jacobs, et al., Plaintiffs
v.
U.S. Bank and Trust N.A., et al., Defendants

          MEMORANDUM OPINION

          Jeffrey J. Helmick United States District Judge

         I. Background

         On May 23, 2013, U.S. Bank Trust N.A. initiated a foreclosure action against Ronald O. Jacobs and Barbara J. Jacobs in the Lucas County Court of Common Pleas. On November 12, 2014, the trial court granted U.S Bank Trust's motion for summary judgment against Ronald Jacobs and granted a default judgment against Barbara Jacobs. Ronald and Barbara Jacobs appealed those rulings. On November 6, 2015, the Sixth District Court of Appeals affirmed the judgment of the trial court. U.S. Bank Trust, N.A. v. Jacobs, No. L-14-1268, 2015 WL 6951464 (Ohio App. 2015).

         On December 8, 2016, the Jacobs initiated this suit against U.S. Bank and Trust N.A.[1] and Residential Finance Corp. The relevant pleadings filed in this action are as follows:

• On January 18, 2017, U.S. Bank filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(3), (4), (5), and (6). (Doc. No. 7).
• On January 24, 2017, Plaintiffs filed an Amended Complaint naming the same two Defendants. The only relevant change was to the designation of U.S. Bank, whose address was listed “c/o SANDHU Law Group LLC, 1213 Prospect Ave., Suite, 300, Cleveland, OH 44115[2].” (Doc. No. 8).
• On March 7, 2017, Plaintiffs filed a motion for a stay of execution seeking to enjoin and restrain “Grantee of U.S. Bank & Trust, Trifera LLC and those acting in concert or participation with them from proceeding to the removal and or eviction of Plaintiffs from their principal place of dwelling” (Doc. No. 15).
• On March 14, 2017, Defendant U.S. Bank moved to strike Plaintiffs' amended complaint. (Doc. No. 16).
• On March 14, 2017, Defendant U.S. Bank moved to strike Plaintiffs' motion to stay or in the alternative filed a brief in opposition to the motion for a stay. (Doc. No. 17).
• On March 21, 2017, Plaintiffs moved for leave to file a second amended complaint as they sought “to add the claim of Waiver of Plaintiffs Performance to the claims and dismiss without prejudice the second defendant RESIDENTIAL FINANCE CORP. pursuant to Fed. R 41a(1)” and to perfect service on the Defendant U.S. Bank. (Doc. No. 19). Defendant U.S. Bank filed an opposition brief on April 4, 2017. (Doc. No. 21).
• On April 24, 2017, Plaintiffs filed their first amended complaint instanter as represented in their motion for leave. (Doc. No. 22). In this amended complaint they named U.S. Bank and Trust, N.A. as the sole defendant “c/o Richard K. Davis, 800 Nicollet Mall, Minneapolis, MN 55402.” (Id.)
• On June 1, 2017, Defendant U.S. Bank moved to dismiss pursuant to Fed. R Civ. P. 12(b)(6). (Doc. No. 27). Plaintiff filed a response on June 6, 2017. (Doc. No. 29). Defendant's reply was submitted on June 15, 2017. (Doc. No. 30).

         With the issues having been briefed by the respective parties, I now turn to a discussion of the relevant issues.

         II. Pro Se Litigants

         Historically, pro se litigants are afforded extra consideration. See Haines v. Kerner, 404 U.S. 519 (1972). The pitfalls of self-representation were addressed by the Court in Eagle Eye Fishing Corp. v. U.S. Dept. of Commerce, 20 F.3d 503, 506 (1st Cir. 1994):

[T]he “right of self-representation is not a ‘license not to comply with the relevant rules or procedure and substantive law.'” . . . . The Constitution does not require judges-or agencies, for that matter-to take up the slack when a party elects to represent himself.

(Citations omitted).

         An unrepresented plaintiff voluntarily assumes the risks and accepts the hazards which accompany self-representation. See McNeil v. United States, 508 U.S. 106, 113 (1993), wherein the Supreme Court noted that “we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.” Similarly, the Sixth Circuit requires pro se litigants to adhere to the rules of the court. See Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); Brock v. Hendershott, 840 F.2d 339, 342-43 (6th Cir. 1988).

         III. Applicable Legal Standard

         Fed. R. Civ.P. 12(b)(6) provides for dismissal of a lawsuit for “failure to state a claim upon which relief can be granted.” Courts must accept as true all of the factual allegations contained in the complaint when ruling on a motion to dismiss. Erickson v. Pardus,551 U.S. 89, 94 (2007); Thurman v. Pfizer, Inc.,484 F.3d 855, 859 (6th Cir. 2007). To survive a motion to dismiss under Rule 12(b)(6), “even though a complaint need not contain ‘detailed' factual allegations, its ‘factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are ...


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