Summary
finding reference to the UCC is insufficient to raise a federal question
Summary of this case from Okawaki v. First Hawaiian BankOpinion
Civil No. 04-6043-TC.
September 24, 2004
FINDINGS AND RECOMMENDATION
Plaintiff filed a complaint alleging Grand Theft by Fraud and Conversion, Fraud Upon the State Court, and Collusion and Conspiracy to Deprive Due Process Rights, with a "Criminal Referral Requested." The jurisdictional basis and the specific nature of plaintiff's claims are not clear. Plaintiff's claims arise out of the foreclosure and sale of plaintiff's residence by Countrywide Mortgage to Wells Fargo Bank and plaintiff's attempts to forestall, resist and invalidate that process.
Before the court are defendants' motions to dismiss and/or for summary judgment (#20) and (#26). Plaintiff filed an "Opposition to defendant(s) motion 12(B)6 defense as bad faith" (#25) in which she generally opposes defendants' contentions as "not defensible." However, plaintiff has not responded on the merits to defendants' motions.
By Order (#33) entered June 23, 2004, plaintiff was advised of the federal summary judgment standard and allowed 30 days to file additional evidence or argument. No additional briefing has been filed.
The relevant facts are as follows: Plaintiff's property ("family home") was sold to Wells Fargo Bank of Minnesota, N.A. ("Wells Fargo") pursuant to a non-judicial trust deed foreclosure conducted pursuant to ORS Chapter 86. Plaintiff was subsequently evicted in a FED eviction proceeding in Marion County Case No. 03C14825. Countrywide Mortgage, Inc., ("Countrywide") was the loan servicer for Wells Fargo at the time of the foreclosure.
Although ORS 86.755(5) provides that the purchaser at a foreclosure sale is entitled to possession of the property the tenth day following the sale, plaintiff avoided eviction by removing the state court proceeding to this court, Wells Fargo Bank of Minnesota, NA v. Whitus, USDC No. 6-03-06031-TC. The removal was subsequently denied. Defendant Dougherty represented Wells Fargo in the eviction proceeding, which resulted in a judgment of restitution of the premises in favor of Wells Fargo following a trial in Marion County Case No. 03C14825. Defendant Roth Fennell represented Countrywide and Wells Fargo in the removal action.
Plaintiff subsequently filed another state court action against defendants and the judge who conducted the eviction trial, making claims similar to the ones alleged in this action.
The FED followed an earlier state court judgment in which defendants McGavic and Ing represented Magnus Services Inc., an assignee of plaintiff's creditor, in enforcing a credit card debt. The court entered a judgment in favor of the plaintiff Magnus and against plaintiff. Marion County Circuit Court Case No. 02C18633, Mangus Services Inc. v. Dawn C. Whitus.
Plaintiff has also filed two bankruptcy proceedings, In Re Whitus, United States Bankruptcy Court Case No. 03-67797- fra 13, and In Re Whitus, United States Bankruptcy Court Case No. 603-65396-aer 13. In the second bankruptcy plaintiff also filed an adversary proceeding against Wells Fargo and Countrywide,Whitus v. Wells Fargo Bank, et al., Adversary Proceeding No. 03-6319-fra.
Plaintiff's claims are not at all clear. Plaintiff alleges that the credit card case and the FED case became "commingled" and resulted in void judgments. In her first four claims, plaintiff alleges that the FED judgment was based on fraudulent documents and an "unenforceable" contract. In her fifth claim, plaintiff challenges the credit card judgment concluding that the judgment is "void" and based on "fraud." In her sixth claim plaintiff refers to a section of the Fair Debt Collection Practices Act, 15 U.S.C. § 1629g for the proposition that a debt collector must "validate" a debt by providing certain information to the debtor.
Plaintiff refers to due process and the debt collection statute, but has not alleged how defendants' alleged conduct violated her due process rights or the Fair Debt Collection Practices Act. Plaintiff generally contends that the prior state court judgments are void and that the defendants have engaged in fraud. Plaintiff's claims are essentially an attempt to appeal the decisions or obtain relief from the judgments of the state courts.
Defendants' Motion (#20): Defendants McGavic and Ing move to dismiss and for partial summary judgment on various grounds. It is not necessary to address all of the grounds raised in defendants' motion. Although plaintiff has not alleged a federal jurisdictional basis for her claims and none is apparent in the pleadings before the court, this deficiency could arguably be cured. Similarly, plaintiff has failed to allege any facts that state a federal claim for relief against defendants McGavic or Ing. However, plaintiff's failure to state a claim could possibly be cured by amendment.
However, there are other, more fundamental problems with plaintiff's case that are clearly dispositive of her claims. As noted above, the essence of plaintiff's claims is a challenge to two state court cases that were resolved against her. Plaintiff apparently seeks to have this court review and invalidate the state court judgments.
Under the Rooker-Feldman doctrine, a federal court is without jurisdiction to hear what amounts to an appeal from a state court judgment. In Bianchi v. Rylaarsdam, 334 F.3d 895 (9th Cir. 2003) the Ninth Circuit Court of Appeals explained the Rooker-Feldman doctrine as follows:
"In analyzing a Rooker-Feldman challenge, it is instructive to consider the Supreme Court's precise language that was the genesis of this doctrine. Although the principle that federal courts lack jurisdiction to hear appeals from state court decisions was firmly established in Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), it was not until sixty years later in D.C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed. 206 (1983), that the now-familiar test was articulated:
"If the constitutional claims presented to a United States District Court are inextricably intertwined with the state court's denial in a judicial proceeding of a particular plaintiff's application [for relief], the the District Court is in essence being called upon to review a state court decision. This the District Court may not do."Id., at 483 n. 16, 103 S.Ct. 1303.
United States District Courts . . . do not have jurisdiction, however, over challenges to state court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the State court's action was unconstitutional.
Id., at 486, 103 S.Ct. 1303.
Rooker-Feldman is a powerful doctrine that prevents federal courts from second-guessing state court decisions by barring the lower federal courts from hearing de facto appeals from state court judgments: If claims raised in the federal court are "inextricably intertwined" with the state court's decision such that the adjudication of federal claims would undercut the state court ruling or require the district court to interpret the application of state laws or procedural rules, then the federal complaint must be dismissed for lack of jurisdiction. See, Feldman, 460 U.S. at 483 n. 16 and 485, 103 S.Ct. 1303. Simply put, "the United States District Court, as a court of original jurisdiction, has no authority to review the final determinations of a state court in a judicial proceeding." Worldwide Church of God v. McNair, 805 F.2d 888, 890 (9th Cir. 2003).
In this case, plaintiff alleges the invalidity of the state court judgments and seeks to "undercut the state ruling." Rooker-Feldman makes clear that this proceeding cannot serve as an appeal from the state courts and this court is without jurisdiction to entertain a challenge that is "inextricably intertwined" with the prior state court judgments.
To the extent that plaintiff's allegations could be liberally construed as stating a claim under the Fair Debt Collection Practices Act, 15, U.S.C. § 1629g, plaintiff has not disputed defendants' proof that they provided validation of the credit card debt, as required under the statute. See, Statement of Material Facts (#22) paragraph 5. In addition, defendants' undisputed facts establish that any such claim would be barred by the one year statute of limitations. 15 U.S.C. 1692k(d).
Defendants' Motion (#26): Defendants Doughtery, Routh Fennell PC, Wells Fargo Bank Minnesota, NA and Countrywide Mortgage, Inc., also move to dismiss and/or for summary judgment.
None of the moving defendants have been served with a summons issued by the Clerk of the court in accordance with Fed.R.Civ.P. 4(a). See, Proofs of service filed by plaintiff.
As discussed above, plaintiff has not alleged a federal jurisdictional basis for her claims and none is apparent from the pleadings before the court. Plaintiff's allegations and defendants exhibits establish that there in no complete diversity of the parties. Strawbridge v. Curtis, 3 Cranch 267, 2 LEd 435 (1806). Plaintiff's references to various constitutional principles and federal statutes (as well as the Uniform Commercial Code) are insufficient to raise a bone fide federal question. See, M.K. v. Archdiocese of Portland, 228 Fed. Supp. 2d 1168 (D. Or 2002).
In addition to the Rooker-Feldman obstacle discussed above, plaintiff's claims against the moving defendants, to the extent they are based upon the alleged invalidity of the deed of trust or a defect in the foreclosure proceeding, are barred by issue preclusion.
Although Wells Fargo was the named plaintiff in the eviction action, Countrywide, Robert C. Doughtery and the firm Routh Fennel were aligned in interest with Wells Fargo. Plaintiff had an opportunity to introduce evidence regarding the alleged invalidity of the deed of trust that was foreclosed, or otherwise challenge the foreclosure, which she did. However, judgment was rendered against her. Therefore, any claims relating to the validity of the deed or defects in the foreclosure proceeding are barred by the doctrine of issue preclusion.
Plaintiff has not alleged any claims against defendant Routh Fennel. The absence of any factual allegations against a named defendant will entitle that defendant to have the complaint dismissed as to him. Polk v. Montgomery County, 548 F. Supp. 613, 614 (D. Md. 1981).
Plaintiff's claim against defendant Dougherty appears to be based upon his presentation of evidence and argument at the eviction proceeding. The is nothing in the record, other than plaintiff's unsubstantiated allegations, to suggest that any of the proffered evidence was "fraudulent" or that any of the arguments were improper. Plaintiff has failed to allege any facts that state a cognizable claim against defendant Dougherty.
Plaintiff's confusing references to the Uniform Commercial Code are immaterial. The foreclosure of a deed of trust is governed by ORS Chapter 86, not the Uniform Commercial Code. See, ORS 86.735.
Plaintiff fails to state a claim for violation of debt collection practices laws arising out of the moving defendants' alleged conduct, because the foreclosure of a deed of trust does not constitute the collection of a debt. Hulse v. Ocwen, et al.,, 195 F. Supp. 2d 118 (D. Or. 2002).
Based on defendants' uncontroverted exhibits and argument, I find that there are no genuine material issues of fact remaining in this case and that defendants are entitled to judgment as a matter of law. Defendants' motions to dismiss and/or for summary judgment (#20) and (#26) should be allowed. Plaintiff's claims should be dismissed and judgment should be entered in favor of defendants. This action should be dismissed with prejudice.