Bowen v. Wells Fargo Bank, NA
| Decision Date | 17 August 2011 |
| Docket Number | Case No. 2:11-cv-91-FtM-29SPC |
| Parties | BARRY J. BOWEN, Plaintiff, v. WELLS FARGO BANK, N.A., Defendant. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court on defendant's Motion to Dismiss Plaintiffs' First Amended Complaint (Doc. #19) filed on May 2, 2011. Plaintiff filed a Response in Opposition (Doc. #22) and defendant filed an unauthorized1 Reply (Doc. #23), which the Court will nonetheless consider.
In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff. Erickson v. Pardus, 551 U.S. 89 (2007); Christopher v. Harbury, 536 U.S. 403, 406 (2002). "To survive dismissal, the complaint's allegations must plausibly suggest that the [plaintiff] has a right to relief, raising that possibility above a speculative level; if they do not, the plaintiff's complaint should be dismissed." James River Ins. Co.v. Ground Down Eng'g, Inc., 540 F.3d 1270, 1274 (11th Cir. 2008)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). The former rule -- that "[a] complaint should be dismissed only if it appears beyond doubt that the plaintiffs can prove no set of facts which would entitle them to relief," La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) -- has been retired by Twombly. James River Ins. Co., 540 F.3d at 1274. Thus, the Court engages in a two-step approach: "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). Alternatively, dismissal is warranted if, assuming the truth of the factual allegations of plaintiff's complaint, there is a dispositive legal issue which precludes relief. Neitzke v. Williams, 490 U.S. 319, 326 (1989); Brown v. Crawford County, Ga., 960 F.2d 1002, 1009-10 (11th Cir. 1992). The Court may take judicial notice of matters of public record without converting a Rule 12(b)(6) to a Rule 56 motion. Halmos v. Bomardier Aerospace Corp., 404 F. App'x 376 (11th Cir. 2010).
On March 2, 2011, plaintiff Barry J. Bowen (plaintiff or Bowen), through counsel, filed an Amended Complaint against WellsFargo Bank N.A. (defendant or Wells Fargo).2 Taking all the allegations as true, the following facts are set forth:
Plaintiff owned a residence in Cape Coral, Florida (the Property) (Doc. #5, ¶ 16), and Wells Fargo owned the Promissory Note and mortgage securing the funds that plaintiff used to refinance the Property. (Id., ¶ 17.) In late 2009, while current with payments, plaintiff contacted Wells Fargo to discuss a loan modification due to a change in personal circumstances. (Id., ¶¶ 18-19.) Wells Fargo responded that they would only consider the matter if he was 90 days past due on his payments, and instructed him to stop making his payments. (Id., ¶ 20.) Plaintiff complied, but shortly after the 90 days past due date, and before he could apply for a loan modification program, Wells Fargo initiated foreclosure proceedings. (Id., ¶ 21.) Plaintiff was then told by Wells Fargo to send a hardship letter and seek a stay of the foreclosure proceedings. Plaintiff sent the letter, and did not file an answer to the foreclosure proceedings because Wells Fargo told him not to do so. Plaintiff also did not hire an attorney because Wells Fargo told him one was not needed. (Id., ¶¶ 22-24.) A Default (Doc. #19-2, Exh. B) was entered in state court on April30, 2010. Plaintiff provided paperwork requested by Wells Fargo, and upon calling to ensure receipt, plaintiff learned from Wells Fargo that it had sold the house at a foreclosure sale on August 16, 2010, to itself. (Doc. #5, ¶¶ 25, 30.) The Final Summary Judgment of Mortgage Foreclosure (Doc. #19-3, Exh. C) in state court was issued on July 16, 2010, for $180,450.98, with a public sale to occur on August 16, 2010.
Plaintiff found a Notice posted on his door that he had to vacate no later than January 20, 2011. On January 19, 2011, plaintiff hired counsel but was unsuccessful in blocking his eviction. Plaintiff was duly evicted the next day, with the Lee County Sheriff's Office appearing at 9:00 a.m. to instruct him to vacate within the hour. (Doc. #5, ¶¶ 32-34.) Real estate agents and movers "descended upon Bowen's home" to place his remaining personal property in bags and leave them on the edge of the property, and plaintiff was prohibited from setting foot on the property. (Id., ¶¶ 35-36.) Plaintiff's emergency petition for writ of mandamus was denied on January 21, 2011. Bowen v. Wells Fargo Bank, N.A., 56 So. 3d 2 (Fla. 2d DCA 2011). (Doc. #19-4, Exh. D.)
Count I alleges a claim under the Fair Debt Collection Practices Act (FDCPA) for false, deceptive, and misleading representations made in connection with collection of the debt, and seeks rescission of the Circuit Court Judgment, title to theProperty, damages in the amount not less than $240,000, and fees and costs. Count II alleges a claim under common law fraud, and seeks rescission of the Circuit Court Judgment, title to the Property, damages in the amount of $240,000, and attorney fees and costs. Count III alleges a claim under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), and seeks damages in the amount of $240,000, punitive damages, and attorney fees and costs. Count IV alleges a breach of contract, and seeks damages in the amount of $240,000, punitive damages, and attorney fees and costs.
Defendant argues that the Court lacks jurisdiction pursuant to the Rooker-Feldman3 doctrine and that the claims are otherwise barred by res judicata. Defendant further argues that it is not a "debt collector" under the FDCPA as a mortgage holder, the claim of fraud is not pled with the requisite specificity, national banks are expressly exempted from the scope of FDUTPA, and that the breach of contract claim fails to state a claim.
Subject matter jurisdiction relates to the Court's power to adjudicate a case. Morrison v. Nat'l Austl. Bank Ltd., 130 S. Ct. 2869, 2877 (2010); Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1243 (2010). "[A] court must first determine whether it hasproper subject matter jurisdiction before addressing the substantive issues." Taylor v. Appleton, 30 F.3d 1365, 1366 (11th Cir. 1994). If jurisdiction is found to be lacking, the Court can not proceed at all; its sole remaining duty is to state that it lacks jurisdiction and dismiss the case. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998); see also University of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) ().
"The Rooker-Feldman doctrine makes clear that federal district courts cannot review state court final judgments because that task is reserved for state appellate courts or, as a last resort, the United States Supreme Court." Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009). This is a narrow doctrine, confined to "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Lance v. Dennis, 126 S. Ct. 1198, 1201 (2006)(quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)); Casale, 558 F.3d at 1260. The Eleventh Circuit has focused on this language as delineating the boundaries of the Rooker-Feldman doctrine. Green v. Jefferson County Comm'n, 563 F.3d 1243, 1249-50 (11th Cir. 2009), cert. denied, 130 S. Ct.199 (2009); Nicholson v. Shafe, 558 F.3d 1266, 1274 (11th Cir. 2009). The Rooker-Feldman doctrine applies when:
(1) the party in federal court is the same as the party in state court; (2) the prior state court ruling was a final or conclusive judgment on the merits; (3) the party seeking relief in federal court had a reasonable opportunity to raise its federal claims in the state court proceeding; and (4) the issue before the federal court was either adjudicated by the state court or was inextricably intertwined with the state court's judgment.
Parker v. Potter, 368 F. App'x 945, 948 (11th Cir. 2010)(quoting Storck v. City of Coral Springs, 354 F.3d 1307, 1310 n.1 (11th Cir. 2003)). "A claim is inextricably intertwined if it would effectively nullify the state court judgment, [ ] or it succeeds only to the extent that the state court wrongly decided the issues. Casale, 558 F.3d 1258 at 1260(internal quotation marks and citations omitted).
In the instant case, the parties are the same as the parties in the state court action, and the state court foreclosure ruling was a final judgment on the merits. There is no indication of a direct appeal of the state court judgment, but the Florida District Court of Appeals denied an emergency writ of mandamus to stop the foreclosure. Based on the allegations in the Complaint however, it is not clear that plaintiff had a reasonable opportunity to raise his claims in the state court before the entry of the final judgment. Additionally, with certain allegations stricken (discussed below), there is no indication that the issues raised inthis federal case were adjudicated by the state court, or that they were inextricably intertwined with the foreclosure judgment.
Plaintiff argues that he is seeking compensatory damages, and not seeking to review or overturn the state court foreclosure action or to have the property returned to him. (Doc. #22, ¶ 1.1.) Rescission of the state court judgment and return of title to the property are sought as remedies in Counts I and II. Such relief would only be available if the federal court were to invalidate the state court judgment, which it clearly does not have the jurisdiction to do. T...
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