Perdum v. Wells Fargo Home Mortgage et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and on Grounds of Res Judicata with Brief In Support

N.D. Ga.April 12, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CYNTHIA PERDUM, Plaintiff, CIVIL ACTION CASE Vs. NO. 1:17-cv-00972-SCJ-JCF WELLS FARGO HOME MORTGAGE; SHAPIRO PENDERGAST & HASTY, LLP; NATIONWIDE TITLE CLEARING, INC.; and U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendants. DEFENDANT SHAPIRO PENDERGAST & HASTY, LLP’S MOTION TO DISMISS WITH INCORPORATED BRIEF COMES NOW Shapiro Pendergast & Hasty, LLP f/k/a Shapiro & Swertfeger, LLP (“SPH” or “the Law Firm”) pursuant to Rules 12(b)(6) and 8(c)(1), and moves the court for an order dismissing Plaintiff’s complaint with prejudice. I. PROCEDURAL HISTORY AND CLAIMS Plaintiff is a vexatious litigant. This is her fifth foreclosure-avoidance law suit involving the same property and Wells Fargo’s authority to foreclose under the terms of her Security Deed. (See section on res judicata below). Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 1 of 26 2 She filed this action on February 13, 2017, in DeKalb County Superior Court. Pursuant to 28 U.S.C. §§ 1442(a)(1) and 1444, Department of Housing and Urban Development ("HUD") removed the action to this Court on March 16, 2017, based on 28 U.S.C. § 2410. (Doc. 1 at 2). Among other Defendants, Plaintiff asserts claims against Wells Fargo Home Mortgage (“Wells Fargo” or “WFHM”) which she identifies as a “division of Wells Fargo Bank, N.A.” (Doc. 1-1 at 4). She avers that Wells Fargo and the Law Firm “plan to foreclose as soon as humanly possible” contrary to Georgia law, the terms of the subject Security Deed, and HUD requirements.” (Doc. 1-1 at 4). Although her claims appear to be mainly directed at Defendants other than the Law Firm, throughout her complaint she indiscriminately implies wrongdoing on the part of "Defendants" without specifying who did what. See Doc. 1-1 at Introduction and at ¶¶ 6, 12, 36, 39, 75, 76, 77, 78, 86, 88, 89, 97, 98, 99. In a conclusory and confusing manner, Plaintiff alleges that “[t]he Defendants,[footnote 1] and each of them, were the agents, employees, representatives, partners, officers, principals and/or joint venturers of each of the remaining defendants, and in doing the things hereinafter alleged, were acting with the scope, course and purpose of such agency, employment or position, or within the apparent scope, course and purpose of such agency, employment or position and Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 2 of 26 3 with permission and consent of each of the remaining defendants.”1 Doc. 1-1 at 6, ¶ 6. Footnote 1 states, “Whenever, appearing in this complaint, each and every reference to Defendants or to any of them, is intended to be and shall be a reference to all Defendants hereto, and to each of them, unless said reference is specifically qualified.” Id. at 6, footnote 1. She challenges the “Defendants’” authority to conduct a non-judicial foreclosure sale of the property known as 5100 King Arthur Lane, Ellenwood, Georgia (“Property”) which property she identifies as her residence. (See Doc. 1-1 at 3-4 “Introduction,” and ¶ 1; and pg. 16, ¶ 39). She contends that the “chain of title” is broken, that she has been denied knowledge of the “true secured creditor,” and that any attempt to show an unbroken chain of title “will mean that [Defendant Nationwide Title Clearing, Inc.]2 created the documents, the same way documents used to be created by DocX which she alleged was “forced to close because of illegal acts.” Id. at Pg. 8, ¶ 11-12. She attached an audit as an exhibit to her complaint supporting a challenge to the 1 See Williams v. Bank of Am., 1:13-CV-00910-AT-AJB, 2014 WL 12543865, at *6 (N.D. Ga. Jan. 23, 2014), report and recommendation adopted sub nom. Williams v. Bank of Am., N.A., 1:13-CV-0910-AT, 2014 WL 12550440 (N.D. Ga. Feb. 19, 2014) (holding that conclusory statements such as this “are clearly insufficient to state a claim” pursuant to Twombly, 550 U.S. at 555 which recognizes that “courts are not required to accept as true legal conclusions pleaded as factual allegations.”) 2 Nationwide Title Clearing, Inc. has moved for summary judgment. (Doc. 10). Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 3 of 26 4 recorded Assignment of her Security Deed (Doc. 1-1, pg. 9-11, ¶¶ 16-22) while simultaneously correctly acknowledging that “she is not allowed to challenge the assignment in Georgia.”3 Id. at ¶ 21. She also alleges in a conclusory manner the Law Firm has not provided her with proper notices of acceleration, or foreclosure4 and “because the true creditor” is the Secretary of Housing and Urban Development, the Secretary’s “pre-non- judicial foreclosure rules … have also been violated.” (Doc. 1-1 at 4). Relevant to the Law Firm, she alleges she sent letters to SPH and to Wells Fargo requesting a loan modification. She complains that the modification was denied because she did not make the trial payments which she complains “were the full amount of the loan payments.” She avers that she then requested an explanation for the denial of the loan modification. (Doc. 1-1 at 12, ¶¶ 25-27, pg. 16, ¶ 40). She alleges that one of the letters she sent SPH and Wells Fargo requested information 3 See Edward v. BAC Home Loan Serv., L.P., 534 Fed.Appx. 888, 891 (11th Cir.2013) (per curiam) (citing Montgomery, 740 S.E.2d at 438 and O.C.G.A. § 9-2- 20(a), and holding that non-parties lacks authority to challenge an assignment). 4 A genuine copy of the most recent foreclosure notice sent to Plaintiff by the Firm on behalf of Wells Fargo Bank, N.A. prior to this action is attached hereto as Exhibit A. This exhibit is central to Plaintiff’s claim and the Court may take judicial notice thereof. The referenced sale was halted when the DeKalb County Superior Court entered a temporary restraining order (Exhibit B). No sale has occurred and no foreclosure is pending. Nevertheless, the Law Firm is not a party to the Security Deed so this conclusory allegation does not allege a breach of any duty the firm owed to Plaintiff. Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 4 of 26 5 regarding the “current owner” of her Note pursuant to 15 USC § 1641(f)(2) of the Truth in Lending Act (“TILA”); that she informed Wells Fargo and SPH that the request was “also a Request for Information pursuant to 12 C.F.R. §1024.26(d)(2)(i)(A);”5 and that “WFHM failed to timely comply.”6 ¶ 30. The complaint includes nine claims, three of which are asserted against the Law Firm, to wit, Wrongful Attempted Foreclosure (“Second Claim for Relief”); Negligence/Gross Negligence (“Fourth Claim for Relief”); and Fair Debt Collection Practices Act violation (“Eighth Claim for Relief”). (Doc. 1-1 at 40-41 and 48). The complaint includes ninety allegations spanning twenty-nine pages purported to be “relevant to all causes.” (Doc. 1-1 at pgs. 7-35). However, these ninety allegations are not relevant to all of Plaintiff’s claims. Among other vague allegations, Plaintiff specifically challenges Wells Fargo’s authority to foreclose (Doc. 1-1 at 40, ¶¶ 119-122); challenges the recorded assignment of her Security Deed (Id. at ¶¶ 11-14 and 16-21); and alleges violations of the Sherman and Clayton Acts (Id. at 47-48).7 5 Presumably, Plaintiff meant 12 C.F.R. § 1024.36, not § 2024.26. 6 These statutes, however, only apply to loan “servicers.” Plaintiff does not allege that the Law Firm is the servicer of her loan and indeed it is not. Regardless, she has not asserted a claim against SPH under these statutes. 7 Her Sherman Act and Clayton Act claims are bogus, nonsensical "short sale agreement" conspiracy claims whereby she alleges federal antitrust law was violated by denying her the opportunity to purchase her own loan in a short sale. Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 5 of 26 6 II. STATEMENT OF FACTS8 Plaintiff purchased the Property on or about September 21, 2000 under a Warranty Deed a genuine copy of which is attached hereto as Exhibit C. On November 22, 2002, she refinanced her original mortgage loan with a mortgage loan (the "Loan") made by Washington Mutual Bank, FA ("WAMU").9 To secure repayment of the Loan, Plaintiff executed a Security Deed encumbering the Property in favor of WAMU ("Security Deed")10 which is recorded at Deed Book 13931, Pages 454 - 463, DeKalb County records. A genuine copy is attached hereto as Exhibit D. 8 See the substantially similar “Background and Procedural History” in this Court’s Report and Recommendation in Perdum v. Wells Fargo Bank, N.A., 1:13-CV- 04304-AT-JCF, 2014 WL 12069854, at *1 (N.D. Ga. May 9, 2014), report and recommendation adopted sub nom. Perdum v. Wells Fargo Bank, Nat'l Ass'n, 1:13- CV-4304-AT, 2014 WL 12069855 (N.D. Ga. May 29, 2014). 9 See Doc. 1-1 at 7, ¶ 10. 10 Id. Plaintiff admits she refinanced and executed the Security Deed in favor of Washington Mutual Bank, F.A. A copy thereof is attached as Exhibit A to her complaint. Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 6 of 26 7 By an instrument recorded at Deed Book 19478, Page 358, DeKalb County records, WAMU assigned the Security Deed to Wells Fargo Bank, N.A. (the "Assignment").11 A genuine copy is attached hereto as Exhibit E.12 III. DISCUSSION Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” To state a claim that can survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not 11 Plaintiff refers to Wells Fargo as the “alleged assignee of the loan,” and contends that it is thus “obligated to adhere and abide by the legal binding contracts signed by [her] in favor of Washington Mutual Bank.” (Doc. 1-1 at 36, ¶ 102). 12 The Court may consider the Warranty Deed, the Security Deed and Assignment referenced herein without converting this motion into a motion for summary judgment as they are authentic, undisputed documents central to the complaint. See Horsley v. Feldt, 304 F. 3d 1125, 1134-35 (11th Cir. 2002); Harris v. Ivax Corp., 182 F.3d 799, 802 n.2 (11th Cir. 1999); Okim v. Bank of Am., No. 1:12-cv-01759- TWT-GGB, 2012 U.S. Dist. LEXIS 168788, at *7 (N.D. Ga. Oct. 25, 2012); Jerome v. Marriott Resid. Inn Barcelo Crestline/AIG, No. 1:04-CV-2690-WSD, 2005 U.S. Dist. LEXIS 47644, at *6 (N.D. Ga. Mar. 25, 2005). Further, they are all publicly recorded documents. Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 7 of 26 8 suffice,” and “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 678-79. To be plausible, the complaint must contain “well-pleaded facts” that “permit the court to infer more than the mere possibility of misconduct.” Id. at 679. A. Wrongful Attempted Foreclosure (Count Two) Seeking Damages In Plaintiff’s Second Claim for Relief which is directed at all Defendants and entitled “Wrongful Attempted Foreclosure,” Plaintiff alleges that Wells Fargo, acting for itself “rather than as an agent for the true secured creditor” lacks an interest in the property, and lacks standing to seek non-judicial foreclosure because it “did not have the authority of the Secretary to foreclose.” She then alleges that “as a direct and proximate cause of [Wells Fargo’s] actions/inactions,” she was harmed. (Doc. 1-1 at 40, ¶¶ 119-122). To prevail on a claim for wrongful attempted foreclosure under Georgia law, the plaintiff must prove “a knowing and intentional publication of untrue and derogatory information concerning the debtor's financial condition, and that damages were sustained as a direct result of this publication.” Bates v. JPMorgan Chase Bank, NA, 768 F.3d 1126, 1134 (11th Cir. 2014) quoting Aetna Fin. Co. v. Culpepper, 171 Ga. App. 315, 319, 320 S.E.2d 228, 232 (1984). Plaintiff’s complaint fails to include factual allegations stating a claim for relief against SPH for wrongful attempted foreclosure. Her own complaint shows Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 8 of 26 9 that she was in default. See Doc. 1-1 at ¶¶ 73-85 wherein she complains repeatedly about not being able to purchase her own “defaulted note.” Also, she does not allege any facts relating to the publication by SPH (or anyone else) of any information regarding her financial condition, and does not allege facts showing damages incurred as a result of a wrongful attempted foreclosure. Moreover, belying her argument that Wells Fargo lacks authority to foreclose, the plain language of the Security Deed gave the grantee and its successor/assignee, Wells Fargo, a power of sale.13 “In [You v. JP Morgan Chase Bank, N.A., 293 Ga. 67, 743 S.E.2d 428, 430 (2013)], the Georgia Supreme Court clarified that the holder of a security deed possesses full authority to exercise the power of sale and foreclose after the debtor's default…” Muhammad v. JPMorgan Chase Bank, NA, 567 Fed. Appx. 851, 854 (11th Cir. 2014). Therefore, as the assignee of record, Wells Fargo has authority to enforce the power of sale provisions of the Security Deed. For these reasons, Plaintiff's claim for attempted wrongful foreclosure must be dismissed. 13 The Security Deed states in relevant part, “[t]his Security Instrument secures to Lender: … the repayment of the Loan … and … the performance of Borrower’s covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby grant and convey to Lender and Lender’s successors and assigns, with power of sale, the [Property]. Exhibit D at pg. 2. See also pg. 7, ¶ 18 describing exercise of the power of non-judicial foreclosure sale. Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 9 of 26 10 B. Negligence/Gross Negligence (“Fourth Claim for Relief”) Under Georgia law, the necessary elements of a negligence claim “are the existence of a legal duty; breach of that duty; a causal connection between the defendant's conduct and the plaintiff's injury; and damages.” Ceasar v. Wells Fargo Bank, N.A., 744 S.E.2d 369, 373 (Ga. Ct. App. 2013). “Thus, the threshold issue in a negligence action is whether and to what extent the defendant owes a legal duty to the plaintiff. A legal duty sufficient to support liability in negligence is either a duty imposed by a valid statutory enactment of the legislature or a duty imposed by a recognized common law principle declared in the reported decisions of our appellate courts. (Citations and punctuation omitted).” Boller v. Robert W. Woodruff Arts Ctr., Inc., 311 Ga.App. 693, 695-696(1), 716 S.E.2d 713 (2011). Although the heading of Plaintiff’s “Fourth Claim for Relief” states it is “Against WFHM, HUD, FHA, GNMA, NTC, SPH,” the allegations of negligence (all of which are conclusory) are directed at WFHM, HUD, FHA, and GNMA, which Plaintiff only vaguely claims owed “a duty to avoid harming her.” (Doc. 1-1 at 42, ¶ 127). She also included a vague and conclusory “catch-all” allegation that “[a]s a direct and proximate cause of these defendants’ actions/inactions discussed Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 10 of 26 11 throughout this complaint, Ms. Perdum has been harmed, injured and suffered damages.”14 (Doc. 1-1 at 42 at ¶ 128). Plaintiff has failed to allege facts supporting the elements of a negligence claim. Critically, she has failed to allege any cognizable statutory or common law legal duty owed to her by the Law Firm which it breached. Plaintiff likewise failed to plead causation and damages.15 Accordingly, her negligence claim is due for dismissal as against SPH. 14 The only other reference to a duty allegedly breached by SPH is in ¶ 86 which states in a vague and conclusory manner, “Defendants and their co-conspirators knowingly fail in their duty to advise the homeowner-mortgagor of their full range of loss mitigation options, thereby causing many of them to lost their homes in the foreclosure process. Mediation negotiations should include a look at the possibility of selling the note and mortgage to the homeowner-mortgagor for the net present value ("NPV") of the note and mortgage (i.e., the amount which the lender would realize upon the foreclosure sale it was seeking to approve), but this does not occur with these defendants when pursuing their foreclosure proceedings against the Plaintiff.” Doc. 1-1 at 29, ¶ 86. There is no such statutory or common law duty imposed upon foreclosure counsel. 15 See Vieira v. Citigroup, Inc., 1:12-CV-1636-TWT, 2012 WL 6194350, at *5-6 (N.D. Ga. Dec. 12, 2012) (“The Plaintiff's claims against Pendergast for wrongful foreclosure and negligence are not colorable claims that a state court would even consider because the Plaintiff has not shown that Pendergast owed him a duty. …Here, Pendergast is not the foreclosing party, CitiMortgage is. … The Plaintiff has not alleged any duty owed to him by Pendergast, and typically a law firm owes no duty to its clients' adversary. … Accordingly, there is no possibility that the Plaintiff can establish a claim against Pendergast for wrongful foreclosure. Likewise, the claims against Pendergast for negligence are not colorable because the Plaintiff has not shown that Pendergast owed him a duty. …In the absence of such a showing, the Court concludes Pendergast owed no duty to the Plaintiff. See Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 11 of 26 12 C. Fair Debt Collection Practices Act Violation (“Eighth Claim for Relief”) Plaintiff’s FDCPA claim is premised upon alleged violations of 15 U.S.C 1692e. (Doc. 1-1 at 48-49, ¶¶ 152-159). In this vague claim, she alleges that the Law Firm “as agents for WFHM” sent her “a letter and documents” in which the Firm demanded payment and threatened foreclosure “if the debt was not paid.” (Doc. 1-1 at 48, ¶ 154). She states that the firm’s letters all state that the firm is a “‘debt collector trying to collect a debt’; and/or that the [sic] letter was ‘an attempt to collect a debt’.” Id. ¶ 158. She concludes without explanation that this was in violation of the FDCPA “especially 1692e16 which prohibits a ‘debt collector’ from using ‘false, deceptive, or misleading representation or means in connection with the collection of any debt’.” (Doc. 1-1 at 49, ¶ 155). She also alleges (again, in a conclusory manner) that her “payment obligations under the promissory note at issue in this action” are encompassed by the “FDCPA’s definition of ‘debt’ in 1692a (5).” (Id. at 49, ¶ 157). Without explanation or elaboration, she alleges that “WFHM is not a ‘creditor’ under the definition of McCarter v. Bankers Trust Co., 247 Ga.App. 129, 132, 543 S.E.2d 755 (2000) (concluding that law firm for lender had no duty to mortgagor when lender had right to foreclose). Accordingly, the Court concludes the Plaintiff cannot establish a claim against Defendant Pendergast for negligence.”) (Internal citations omitted). 16 She does not specifically cite violation of any other section of the FDCPA. Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 12 of 26 13 FDCPA.” She then concludes that “WFHM and SPH are liable for statutory damages.” Id. at ¶¶ 158-159. The FDCPA only applies to the actions of a “debt collector.”17 15 USC § 1692e; see also Davidson v. Capital One Bank (USA), N.A., 797 F.3d 1309, 1313 (11th Cir. 2015) (“There is no dispute that § 1692e applies only to debt collectors.”). The Act bars debt collectors from engaging in certain abusive practices in connection with the collection of debt. For example, § 1692e provides that a “debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” Here, Plaintiff does not plausibly allege that the Law Firm falls within the statutory definition of that term and thus her FDCPA claim fails. See Thomas v. US Bank Nat'l Ass'n, 15-14427, 2017 WL 117121, at *4-5 (11th Cir. Jan. 12, 2017); Farquharson v. Citibank, N.A., 664 Fed. Appx. 793, 799-800 (11th Cir. 2016) (“In their Amended Complaint, Plaintiffs assert that Citigroup and Wolfe are each “debt collectors;” however, such “threadbare recitals of a cause of action's elements” do 17 The term “debt collector” is defined in the FDCPA as (1) “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts” or (2) any person “who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). For the purpose of section 1692f(6) ..., such term also includes any person who uses an instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. 15 U.S.C. § 1692(a)(6). Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 13 of 26 14 not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) (“[L]egal conclusions masquerading as facts will not prevent dismissal.”))” See also Cyrus v. Wells Fargo Bank, N.A., No. 1:12-CV-01156-TWT-LTW, 2013 WL 869398, at *4 (N.D. Ga. Feb. 7, 2013) (Walker, M.J.) (“Reciting the statutory definition without offering any facts in support is insufficient to plausibly allege that Defendants meet the definition of debt collectors, such that the FDCPA applies to them.”), report and recommendation adopted, 2013 WL 870075 (N.D. Ga. Mar. 7, 2013) (Thrash, J.); see also Correa v. BAC Home Loans Servicing LP, No. 6-11- cv-1197-Orl-22DAB, 2012 WL 1176701, at *12 (M.D. Fla. Apr. 9, 2012) (because the plaintiff cited only the general definition of a debt collector and stated that defendants are debt collectors in a conclusory manner, the plaintiff failed to allege facts sufficient to state a claim for relief under the FDCPA). Plaintiff has also failed to allege sufficient facts that would allow a reasonable inference or a plausible claim that the Law Firm used a false, deceptive, or misleading representation in connection with any attempt to collect a debt from the Plaintiff. See, e.g., Librizzi v. Ocwen Loan Servicing, LLC, 120 F. Supp. 3d 1368, 1381 (S.D. Fla. 2015) (“Even assuming arguendo Defendant Ocwen was a ‘debt collector,’ ... Plaintiff's Amended Complaint does not allege the contents of the communications which plausibly indicate that an attempt to collect the debt was Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 14 of 26 15 ‘false, deceptive, or misleading,’ 15 U.S.C. § 1692e, or ‘unfair or unconscionable.’ 15 U.S.C. § 1692f.”) Plaintiff has not plausibly shown that SPH engaged in any debt collection activity or that it took any specific actions against her in violation of the FDCPA. She has not even identified or attached the purportedly offensive letter or documents, and never alleges that which was false, deceptive or misleading therein. See Williams v. Ocwen Loan Servicing, LLC, 1:15-CV-3914-ELR-JSA, 2016 WL 5339359, at *8-12 (N.D. Ga. May 9, 2016), report and recommendation adopted, 1:15-CV-03914-ELR, 2016 WL 5660347 (N.D. Ga. May 26, 2016) Finally, available remedies for violations of the FDCPA include actual damages, the potential for additional damages up to $1,000 subject to the Court's discretion, and reasonable costs and attorney's fees. 15 U.S.C. §1692k(a)(1)-(3). Here, Plaintiff does not allege she has incurred actual damages, and instead requests that she be awarded statutory damages and attorney’s fees. Since Plaintiff is pro se, she is not entitled to recover attorney’s fees. However, she also has not alleged facts showing entitlement to any “additional damages.” For these reasons, her FDCPA claim is due for dismissal. Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 15 of 26 16 D. Res Judicata “Under res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.” Montana v. United States, 99 S. Ct. 970, 973 (1979) (citations omitted). “The purpose behind the doctrine of res judicata is that the ‘full and fair opportunity to litigate protects [a party's] adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions.’” Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999) (quoting Montana, 99 S. Ct. at 974-75). “Res judicata bars the filing of claims which were raised or could have been raised in an earlier proceeding.” Ragsdale, 193 F. 3d at 1238 (citations omitted); see also De Souza v. J.P. Morgan Chase Home Lending Div., 608 Fed. Appx. 776, 780-81 (11th Cir. 2015). “[F]or res judicata purposes, claims that ‘could have been brought’ are claims in existence at the time the original complaint [was] filed [.]” Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1357 (11th Cir. 1998) (quoting Manning v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir. 1992)). “Res judicata comes in two forms: claim preclusion (traditional ‘res judicata’) and issue preclusion (also known as ‘collateral estoppel’).” Cmty. State Bank v. Strong, 651 F.3d 1241, 1263 (11th Cir. 2011). Issue preclusion or collateral estoppel forecloses the relitigation of issues that have been previously litigated and decided. Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 16 of 26 17 CSX Trans., Inc. v. Bhd. of Maint. of Way Emps., 327 F.3d 1309, 1316 (11th Cir. 2003). When the prior decision was made by a federal court, federal preclusion principles apply. Id. And when the prior decision was made by the same court, the court may apply preclusion principles sua sponte. See Shurick v. Boeing Co., 623 F.3d 1114, 1116 n.2 (11th Cir. 2010). Insituform Techs., LLC v. Cosmic TopHat, LLC, 959 F. Supp. 2d 1335, 1341 (N.D. Ga. 2013) (italics added).” Cordner v. Specialized Loan Servicing, LLC, 1:15-CV-2090-TWT-JFK, 2016 WL 3675557, at *10-11 (N.D. Ga. June 7, 2016), report and recommendation adopted, 1:15-CV- 2090-TWT, 2016 WL 3634722 (N.D. Ga. July 7, 2016). As stated above, Plaintiff has filed numerous foreclosure-related civil actions directed at Wells Fargo Bank, N.A. One such action was also directed at the Law Firm. Although only one of these actions has a res judicata effect here, the Law Firm is also providing information about the other actions so that this Court is fully apprised of Plaintiff’s vexatious and frivolous conduct leading up to this action. PERDUM 1 On May 3, 2013, Plaintiff filed a complaint against Wells Fargo Bank, N.A. in DeKalb Superior Court (Case No. 13-CV-5259-7) which was removed to this Court June 5, 2013. See Cynthia D. Perdum v. Wells Fargo Bank N.A., Civil Action No.: 1:13-CV-01889-SCJ (2013). Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 17 of 26 18 In her “Complaint for Wrongful Attempted Foreclosure, Title Fraud, Intentional Infliction of Emotional Distress and Damages,” (Doc. 1-1 in Case No. 1:13-CV-01189-SCJ, Exhibit F attached hereto), she sought to enjoin foreclosure of the Property which had been noticed by “the law office of Shapiro & Swertfeger, LLP” as “attorney for Defendant Bank, Wells Fargo Bank, N.A.” Id. at 3, ¶¶ 8, 11. (Movant was formerly known as Shapiro & Swertfeger, LLP.) She claimed in her complaint that Wells Fargo Bank, N.A. was “guilty of attempted wrongful foreclosure, participating in a mortgage scam.” Id. at 1. She described the Security Deed and the Assignment to Wells Fargo. Id. at 2, ¶¶3-4, 7. Like here, she alleged that Wells Fargo (which was then attempting to foreclose on May 7, 2013) was “not the secured creditor with authority to foreclose under Georgia law” (Id. at 4, ¶ 14) and has “no authority to enforce the foreclosure provisions of the security deed” (Id. at 6, ¶ 25). Also like here, she challenged the Assignment as being “fraudulent.” (Id. at 8, ¶ 34). She asserted claims for wrongful foreclosure (Count 1) referencing “wrongful attempted foreclosure” (Id. at ¶¶ 16-17, 23) and claimed “title fraud” (Count III) on grounds that the Assignment is “fraudulent.” (Id. at 11-13, ¶¶ 51-58). On February 6, 2014, this Court entered an Order granting Wells Fargo’s Motion to Dismiss, holding: Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 18 of 26 19 “The majority of Plaintiff’s claims against Defendant hinge on Plaintiff’s assertion that the Assignment is fraudulent. However, Plaintiff does not provide any facts that indicate how the Assignment is fraudulent. Instead, Plaintiff merely asserts, in regards to the Assignment, that ‘Defendant created this document in order to induce the Court into believing [it] had standing to foreclose’ [Doc. No. 1-1, 10]. Plaintiff further alleges that ‘Defendant submitted an invalid and fraudulent assignment’ [id. at 13]. In essence, Plaintiff argues that the mere existence of the Assignment proves Defendant has perpetrated fraud and, more specifically, that the Assignment itself is fraudulent. Obviously, such an argument is conclusory and a prime example of the type of meritless accusation the Twombly and Iqbal decisions seek to prevent. The Assignment is a valid document between Washington Mutual and Wells Fargo, and is properly recorded in the Deed Book of DeKalb County Superior Court [Doc. No. 3-4, 1]. Plaintiff does not present evidence that calls into question the validity of the Assignment. In summary, Plaintiff does not present a set of facts that show her fraudulent-assignment argument is facially plausible. …” Judgment was entered in favor of Wells Fargo on February 6, 2014. (Doc. 15). Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 19 of 26 20 The complaint currently before this Court in large part mirrors Plaintiffs' previous action in Perdum I but adds new parties and purports to include new claims. Regardless, her claims against SPH are precluded by the doctrine of res judicata because SPH is in privity with Wells Fargo as its foreclosure counsel, and since Plaintiff’s “new” claims, no matter how characterized or labeled, all relate to Wells Fargo’s right to foreclose on the Property. Despite the fact that foreclosure sales have been halted and re-scheduled, the underlying issue has been adjudicated. Wells Fargo is the secured creditor with authority to foreclose. PERDUM 2 On December 31, 2013, Plaintiff, proceeding pro se, filed a complaint in this Court against Wells Fargo, for “Accounting Equitable,” “Account Stated,” and breach of fiduciary duty. See Cynthia D. Perdum v. Wells Fargo Bank N.A., Civil Action No.: 1:13-cv-4304-AT (2013) - Doc. 1 at ¶¶ 12, 15, 19. Wells Fargo again moved to dismiss under Fed. R. Civ. P. 12(b)(6). (Doc. 4). Plaintiff did not respond to the motion, but rather filed an “Amended Complaint on Account.” (Doc. 6). That complaint contained no counts and only one allegation - “The defendant owes the plaintiff $364,317.00” - which Plaintiff supported with an IRS 2012 Cancellation of Debt 1099-C apparently issued by Plaintiff to Wells Fargo. (See Docs. 6 and 6-1 in such case). Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 20 of 26 21 As it had done before, Wells Fargo moved to dismiss the Amended Complaint. (Doc. 11 in such case). This time, Plaintiff filed a response but it was “disjointed and confusing and provide[d] no support for the lone allegation in the Amended Complaint.” (Doc. 14-1 in such case).18 This Court submitted a Report and Recommendation (“R&R”) stating in relevant part: “Wells Fargo claims that the Amended Complaint fails to meet the basic federal pleading standards. (Doc. 11-1 at 7). The undersigned agrees. As previously noted, Plaintiff alleges in her Amended Complaint that Wells Fargo owes her $364,317.00. (Doc. 6 at ¶ 3). Yet she offers nothing to explain why Wells Fargo owes her that amount or what legal authority entitles her to relief. (See generally id.). The lone document submitted to support her allegation does nothing to support it. Plaintiff submitted an IRS form, Cancellation of Debt 1099- C, indicating that Plaintiff discharged Wells Fargo's purported debt of $364,317.00, not that Wells Fargo owes her any amount of money. (See Doc. 6-1). Such a document, even when characterized as an 18 The foregoing description of the case is nearly verbatim taken from the Report and Recommendation in Perdum v. Wells Fargo Bank, N.A., 1:13-CV-04304-AT-JCF, 2014 WL 12069854, at *1 (N.D. Ga. May 9, 2014), report and recommendation adopted sub nom. Perdum v. Wells Fargo Bank, Nat'l Ass'n, 1:13-CV-4304-AT, 2014 WL 12069855 (N.D. Ga. May 29, 2014) Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 21 of 26 22 “account” by Plaintiff, (Doc. 6 at ¶ 3), does not show that Wells Fargo actually ever owed Plaintiff the amount claimed.” The R&R recommended denying Wells Fargo’s motion to dismiss the original complaint as moot, and dismissing the Amended Complaint on Rule 12(b)(6) grounds. Judge Totenberg agreed finding as follows and dismissing the complaint: “And the Court agrees with the Magistrate Judge that allowing Plaintiff a third opportunity to plead her case in this Court would be futile. Plaintiff has already brought an unsuccessful case against Wells Fargo, dismissed with prejudice on February 5, 2014. See Perdum v. Wells Fargo Bank, N.A., No. 1:13-cv-1889-SCJ (N.D. Ga. Feb. 5, 2014). Thus, any claim against Wells Fargo based on the same facts alleged in this previous case, and alluded to here, is likely barred by the doctrine of res judicata. See O.C.G.A. § 9-12-40 (“A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.”) James v. Intown Ventures, LLC, 725 S.E.2d 213, 215 (Ga. 2012).” Perdum v. Wells Fargo Bank, Nat'l Ass'n, 1:13-CV-4304-AT, 2014 WL 12069855, at *1 (N.D. Ga. May 29, 2014). Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 22 of 26 23 PERDUM 3 In January 2015, Ms. Perdum filed a Chapter 13 petition pro se and a Chapter 13 Plan in In re Perdum, 15-50395-MGD, 2015 WL 5436713, at *2 (Bankr. N.D. Ga. July 30, 2015). Wells Fargo objected to confirmation and filed a Proof of Claim listing $40,361.31 in arrearages. Ms. Perdum filed an Objection to Wells Fargo’s Proof of Claim alleging that she did not owe Wells Fargo or alternatively that Wells Fargo's claim was unsecured. After the bankruptcy court overruled her Objection, Ms. Perdum filed a “Motion to Determine Secured Status of Washington Mutual Bank FA, Wells Fargo Bank, N.A. and to Strip Lien Effective Upon Discharge” (Doc. 37 in such Bankruptcy Case) arguing that Wells Fargo lacked an interest in the Security Deed. The Bankruptcy Court disagreed holding: “Wells Fargo holds an allowed secured claim, the Court cannot confirm a Chapter 13 plan that does not treat the claim.” In re Perdum, 15-50395-MGD, 2015 WL 5436713, at *2 (Bankr. N.D. Ga. July 30, 2015). PERDUM 4 On October 6, 2016, Ms. Perdum filed an action in Florida state court asserting claims against certain persons who signed, witnessed or notarized the assignment of the subject Security Deed being known as Cynthia D. Perdum vs. Maria Leonor Gerholdt (in her Personal and Official Capacities as Notary); Mary Jo McGowan; Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 23 of 26 24 Crystal Moore; and Susan Straatmann; Sixth Judicial Circuit Court for Pinellas County, Florida, Case No. 2016-006430-CI-007. 19 Such action remains pending. PERDUM 5 On October 31, 2016, Ms. Perdum filed a complaint against Wells Fargo and the Law Firm in the DeKalb County Superior Court styled Cynthia Perdum vs. Wells Fargo Bank, N.A. and Shapiro Pendergast & Hasty, LLP, Superior Court of DeKalb County, Civil Action File No. 16cv11502-6. Therein, she sought a temporary restraining order halting the foreclosure sale scheduled for the next day, November 1, 2017, and an interlocutory injunction pending adjudication of Perdum 4, her Florida action. Although an ex parte temporary restraining order was entered, the preliminary injunction she requested was denied. Plaintiff then filed a dismissal of her complaint. IV. CONCLUSION. Plaintiff has not stated any claim against Shapiro Pendergast & Hasty, LLP for wrongful attempted foreclosure, negligence, or for violation of the Fair Debt Collection Practices Act. Moreover, her vague claims appear to hinge upon Wells Fargo’s status as a “secured creditor” with authority to foreclose. This issue has 19 Plaintiff mentions this action in the instant complaint. See Doc. 1-1 at 50, ¶ 156. Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 24 of 26 25 already been adjudicated in favor of Wells Fargo with whom the Law Firm is in privity. Her complaint is clearly due for dismissal. SHAPIRO PENDERGAST & HASTY, LLP /S DENISE R. GRIFFIN BY:________________________________ DENISE R. GRIFFIN STATE BAR OF GEORGIA NO. 310777 ATTORNEY FOR DEFENDANT SHAPIRO PENDERGAST & HASTY, LLP 295 SOUTH CULVER STREET, SUITE B LAWRENCEVILLE, GA 30046 770/963-7147 (TELEPHONE) 770/963-9676 (FACSIMILE) DRGRIFFIN@LOGS.COM Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 25 of 26 26 CERTIFICATE OF SERVICE This is to certify that on April 12, 2017, the undersigned served the following party with a true copy of the foregoing by depositing the same in the U.S. Mail, postage pre-paid, addressed as follows: Plaintiff: Cynthia Perdum 5100 King Arthur Lane Ellenwood, GA 30294 This will further certify that I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system which will automatically send e-mail notification of such filing to all attorneys of record. SHAPIRO PENDERGAST & HASTY, LLP /S DENISE R. GRIFFIN BY:________________________________ DENISE R. GRIFFIN STATE BAR OF GEORGIA NO. 310777 ATTORNEY FOR DEFENDANT SHAPIRO PENDERGAST & HASTY, LLP 295 SOUTH CULVER STREET, SUITE B LAWRENCEVILLE, GA 30046 770/963-7147 (TELEPHONE) 770/963-9676 (FACSIMILE) DRGRIFFIN@LOGS.COM Case 1:17-cv-00972-SCJ-JCF Document 14 Filed 04/12/17 Page 26 of 26 EXHIBIT A Case 1:17-cv-00972-SCJ-JCF Document 14-1 Filed 04/12/17 Page 1 of 6 Case 1:17-cv-00972-SCJ-JCF Document 14-1 Filed 04/12/17 Page 2 of 6 Case 1:17-cv-00972-SCJ-JCF Document 14-1 Filed 04/12/17 Page 3 of 6 Case 1:17-cv-00972-SCJ-JCF Document 14-1 Filed 04/12/17 Page 4 of 6 Case 1:17-cv-00972-SCJ-JCF Document 14-1 Filed 04/12/17 Page 5 of 6 Case 1:17-cv-00972-SCJ-JCF Document 14-1 Filed 04/12/17 Page 6 of 6 EXHIBIT B Case 1:17-cv-00972-SCJ-JCF Document 14-2 Filed 04/12/17 Page 1 of 2 Case 1:17-cv-00972-SCJ-JCF Document 14-2 Filed 04/12/17 Page 2 of 2 EXHIBIT C Case 1:17-cv-00972-SCJ-JCF Document 14-3 Filed 04/12/17 Page 1 of 2 Case 1:17-cv-00972-SCJ-JCF Document 14-3 Filed 04/12/17 Page 2 of 2 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