Deutsche Bank Nat'l Trust Co. v. Foxx

Decision Date19 September 2013
Docket NumberCase No. 8:13–cv–115–T–35TBM.
Citation971 F.Supp.2d 1106
PartiesDEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee under Pooling and Servicing Agreement dated as of May 1, 2007 Securitized Asset Backed Receivables LLC Trust 2007–BR4, Plaintiff, v. George J. FOXX, Unknown Spouse of George J. Foxx, Unknown Tenant 1 and Unknown Tenant 2, Defendants. George J. Foxx, Third–Party Plaintiff, v. Ocwen Loan Servicing, LLC, Third–Party Defendant.
CourtU.S. District Court — Middle District of Florida

971 F.Supp.2d 1106

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee under Pooling and Servicing Agreement dated as of May 1, 2007 Securitized Asset Backed Receivables LLC Trust 2007–BR4, Plaintiff,
v.
George J. FOXX, Unknown Spouse of George J. Foxx, Unknown Tenant 1 and Unknown Tenant 2, Defendants.

George J. Foxx, Third–Party Plaintiff,
v.
Ocwen Loan Servicing, LLC, Third–Party Defendant.

Case No. 8:13–cv–115–T–35TBM.

United States District Court,
M.D. Florida,
Tampa Division.

Sept. 19, 2013.


[971 F.Supp.2d 1110]


Jeffrey C. Sirolly, Michael D. Starks, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Orlando, FL, Jennifer B. Levy, Joy T. Reid, Natasha L. Coyle, Robert C. Okon, Sandra Rodriguez–Hickman, Steven J. Clarfield, Clarfield & Okon, P.A., West Palm Beach, FL, for Plaintiff.

George J. Foxx, Tampa, FL, pro se.


ORDER

MARY S. SCRIVEN, District Judge.

THIS CAUSE comes before the Court for consideration of the Motion to Dismiss (Dkt. 8) filed jointly by Plaintiff Deutsche Bank National Trust Company (“Deutsche

[971 F.Supp.2d 1111]

Bank”) and Third–Party Defendant Ocwen Loan Servicing, LLC (“Ocwen”); and the Response in opposition thereto (Dkt. 9) filed by Defendant George J. Foxx (“Foxx”). Upon consideration of all relevant filings, case law, and being otherwise fully advised, the Court GRANTS in part and DENIES in part the Motion to Dismiss.

I. BACKGROUND

On June 15, 2011, Plaintiff Deutsche Bank filed a Verified Complaint in state court for foreclosure against Foxx, Foxx's Unknown Spouse, Unknown Tenant # 1, and Unknown Tenant # 2. (Dkt. 2) In response to the Complaint, Foxx, proceeding pro se, filed a pleading titled “Counterclaim(s) and Demand for Trial by Jury Affirmative Relief in Wrongful Foreclosure Action.” (Dkt. 3) In the pleading, Foxx asserts fifteen claims against Plaintiff Deutsche Bank and Third–Party Ocwen. ( Id.) The Court construes Foxx's pleading as a counterclaim and third-party complaint (“Counterclaim and Third–Party Complaint”). This is Foxx's second lawsuit against Deutsche Bank and Ocwen, in which he seeks judicial relief stemming from the same operative facts described below. See George J. Foxx v. Ocwen Loan Servicing, et al., No. 8:11–CV–1766–T–17EAK–EAJ (M.D.Fla. filed Aug. 8, 2011).

Although the most recent pleading is difficult to follow, it appears that Foxx contends that he was served with wrongful foreclosure proceedings after having engaged in what he understood was a “Streamlined Modification Agreement” (“SMA”). ( Id.) According to Foxx, Ocwen extended to him an offer to modify his mortgage if he completed certain paperwork and forwarded it to Ocwen, along with the first modification payment. ( Id. at ¶ 3, 4) Foxx alleges he complied with these terms. ( Id. at ¶ 15) Believing that his compliance consummated a new, modified agreement, Foxx sent payments to Ocwen. ( Id.) Foxx claims that although Ocwen received and kept his payments, Ocwen failed to credit the payments to his account or render his account current. ( Id. at ¶ 16, 46, 49) 1 Foxx alleges that, “Ocwen teamed with Deutsche Bank to continue to carry out the deceptive ploys, tricks, and evil deeds[.]” ( Id. at ¶ 46)

Based on the foregoing, Foxx brings fifteen claims against Ocwen and Deutsche Bank. In response, Ocwen and Deutsche Bank filed the instant Motion to Dismiss.

II. LEGAL STANDARD

The threshold for surviving a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a low one. Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., S.A., et al., 711 F.2d 989, 995 (11th Cir.1983). A complainant must plead only enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1968–69, 167 L.Ed.2d 929 (2007) (abrogating the “no set of facts” standard for evaluating a motion to dismiss established in Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Although a complaint challenged by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a complainant is still obligated to provide the “grounds” for his entitlement to relief, and “a formulaic recitation of the elements of a cause of action will not do.” Berry v. Budget Rent A Car Sys., Inc., 497 F.Supp.2d 1361, 1364 (S.D.Fla.2007) (quoting

[971 F.Supp.2d 1112]

Twombly, 127 S.Ct. at 1964–65, 127 S.Ct. 1955). In evaluating the sufficiency of a complaint in light of a motion to dismiss, the well pleaded facts must be accepted as true and construed in the light most favorable to the complainant. Quality Foods, 711 F.2d at 994–95. However, the court should not assume that the plaintiff can prove facts that were not alleged. Id. Thus, dismissal is warranted if, assuming the truth of the factual allegations of the complaint, there is a dispositive legal issue which precludes relief. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

Although pro se pleadings are liberally construed and held to a less stringent standard than pleadings drafted by an attorney, they must nonetheless comport with the Federal Rules of Civil Procedure, which require a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); see also Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir.2006). In describing the insufficiency of a “shotgun” pleading, the Eleventh Circuit explained that such filings are subject to dismissal as they “impede the orderly, efficient, and economic disposition of disputes.” Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 165 (11th Cir.1997).

III. DISCUSSION

Deutsche Bank and Ocwen (collectively “Defendants”) seek dismissal of Count I with prejudice based on res judicata and seek dismissal of Count XI with prejudice based on the statute of limitations. Defendants move for Foxx's remaining thirteen claims to be dismissed without prejudice, arguing that Foxx's Counterclaim and Third–Party Complaint is an impermissible shotgun pleading. Foxx responds that res judicata is inapplicable under the circumstances of this case as to Count I. Further, Foxx argues that the statute of limitations does not bar Count XI because the statute of limitations was tolled. Lastly, Foxx argues that his remaining claims should not be dismissed because he concisely and clearly alleges causes of action for which relief could be granted.

Upon review of Foxx's Counterclaim and Third–Party Complaint, the Court agrees with Defendants that the forty-three page, 136 paragraph Complaint is a typical shotgun pleading.

i. Count I: Fair Credit Reporting Act

In Count I of Foxx's Counterclaim and Third–Party Complaint, he alleges that Defendants failed to comply with the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. In violation of the FCRA, Foxx claims that Ocwen “failed to conduct a proper investigation of disputed credit entries;” “failed to correct the credit reports even after it stated in the SMA it would do so;” “continued to falsely report to the credit bureaus negative information regarding [him] after 19 payments after the SMA was executed;” and “failed to take the appropriate corrective action after being advised to do so in 20 repeated notices of disputes.” (Dkt. 3 at ¶ 58–61) Defendants argue that Foxx's FCRA claim must be dismissed with prejudice on res judicata grounds. According to Defendants, this Court previously dismissed with prejudice an identical FCRA claim Foxx brought against Defendants in a related action, George J. Foxx v. Ocwen Loan Servicing, et al., No. 8:11–CV–1 766–T–17EAK–EAJ (M.D. Fla. filed Aug. 8, 2011) (“Prior Litigation”). Foxx, however, contends that res judicata is not proper under the circumstances of this case. Foxx asserts that during the pendency of the first action he continued to make payments to Defendants and that Defendants failed to update his credit records and provided inaccurate information.

[971 F.Supp.2d 1113]

To the extent that Foxx is attempting to revive the FCRA claim that this Court dismissed with prejudice in the Prior Litigation, the claim is barred by res judicata. Under the doctrine of res judicata, a final judgment on the merits in a prior suit bars a second suit involving the same parties and same cause of action on all matters that were part of the first suit and all issues that could have been litigated. Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499, 1501 (11th Cir.1984). Res judicata “bars a subsequent suit between the same parties based upon the same cause of action and is conclusive as to all matters germane thereto that were or could have been raised.” Harley v. Health Ctr. of Coconut Creek, Inc., 518 F.Supp.2d 1364, 1369 (S.D.Fla.2007). The elements necessary to establish res judicata are: (1) whether the issue in the present action is identical to the one decided in the prior proceeding, (2) whether the prior litigation reached a final judgment on the merits, and (3) whether the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication. Concordia v. Bendekovic, 693 F.2d 1073, 1076 (11th Cir.1982).

In the instant case, these three elements are met. Although Foxx does not specify which subsection of the FCRA Defendants allegedly violated, based on his factual allegations, it appears that Foxx is attempting to assert a violation of 15 U.S.C. § 1681s–2. In the Prior Litigation, Foxx brought a claim under the FCRA against Defendants, Ocwen and Deutsche Bank. Foxx alleged that Defendants violated the FCRA by “failing to adequately conduct an investigation with respect to the disputed information,” “furnishing inaccurate information relating to Mr. Foxx to the major consumer reporting agencies,” and “fail[ing] to report the results of any investigat[ive] findings to the consumer reporting agencies that the information provided by such person was incomplete or inaccurate.” (Prior Litigation, Dkt. 48 at ¶ 31, 32, 34)...

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