Ezell v. Payne

• Decision Date: 31 January 2017
• Docket Number: CIVIL ACTION NO. 16-1166
• Parties: JAMES AND SONIA EZELL v. ANGELA RUTH PAYNE, ET AL.
• Court: U.S. District Court — Western District of Louisiana

JAMES AND SONIA EZELL v. ANGELA RUTH PAYNE, ET AL.

CIVIL ACTION NO. 16-1166

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION

January 31, 2017

JUDGE ROBERT G. JAMES

MAG. JUDGE KAREN L. HAYES

REPORT AND RECOMMENDATION

Before the undersigned magistrate judge, on reference from the District Court pursuant to 28 U.S.C. § 636(b)(1)(B), is a motion to dismiss for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), filed by defendants, Angela Ruth Payne, Charlotte Russ, and Todd C. Sylvester. [doc. # 5]. For reasons assigned below, it is recommended that the motion to dismiss be GRANTED, and that the case be DISMISSED, in its entirety.

Background

On November 18, 2003, James Ezell executed a promissory note in favor of Washington Mutual Bank, FA for the sum of $240,000. (Pl. Opp. to Defs. Exceptions). To secure the note, James Ezell and Sonia Ezell signed a mortgage, pledging their real property located at 1113-1115 Monroe Avenue, Asbury Park, New Jersey 077112 (the "Ezell property"). Id.

On September 25, 2008, the Office of Thrift Supervision seized Washington Mutual¹ and transferred ownership to the Federal Deposit Insurance Corporation ("FDIC"), which, in turn, immediately sold all of Washington Mutual's assets and substantially all of its liabilities toJPMorgan Chase ("JPMC"). See Deutsche Bank National Trust Co. v. Federal Deposit Insurance Corporation, Civ. Action No. 09-1656 (D. D.C. 6/17/2015); Pl. Opp. to Defs. Exceptions, Exh. 9.

Beginning in July 2008, the Ezells stopped making installment payments on the loan. See JPMorgan Chase Bank v. Ezell, Docket No. 48546-08 (Superior Ct. N.J.) (Foreclosure Complaint); Pl. Opp. to Defs. Exceptions, Exh. 3 [doc. # 1-1, pg. 126-134]. Accordingly, on December 8, 2008, JPMC commenced foreclosure proceedings against the Ezell property in the Superior Court of New Jersey. Id.² On April 21, 2010, JPMC introduced into evidence in the foreclosure action an instrument asserted to be a "true copy" of the original note signed by the Ezells on November 18, 2003. (Pl. Amend. Compl., pg. 3 [doc. # 22]).³ However, there were no endorsements associated with the note. Id.

On August 9, 2013, the Clerk of Court for the Superior Court of New Jersey dismissed, without prejudice, the foreclosure action for failure to prosecute. Id. Upon JPMC's motion, however, the New Jersey court reinstated the foreclosure action on April 25, 2014. Id.

On April 18, 2014, the Federal Deposit Insurance Corporation, as Receiver of Washington Mutual Bank, FA (FDIC-R), assigned the mortgage on the Ezell property to JPMC.⁴ Charlotte Russ executed the assignment as Vice-President for JPMC as attorney-in-fact for theFDIC-R. Id. Russ executed the assignment before Angela Payne, a notary public with jurisdiction in Ouachita Parish, Louisiana. Id.

On October 8, 2014, JPMC assigned the mortgage on the Ezell property to PennyMac Corp.⁵ Shillen Johnson, Vice-President of JPMC, executed the assignment before Todd Sylvester, a Notary Public with jurisdiction in Ouachita Parish. Id.

On November 26, 2014, PennyMac filed an amended foreclosure complaint in the New Jersey foreclosure action, asserting ownership of the Ezells' "refinance mortgage loan" by way of the alleged October 8, 2014, transfer from JPMC. (Pl. Amend. Compl., pg. 4 [doc. # 22]; see also Pl. Prop. 2^nd Amend. Compl., ¶¶ 31-32 [doc. # 26]).

On April 6, 2015, the Ezells filed an answer and counterclaim (apparently in the New Jersey foreclosure action), together with a third-party claim against JPMC. (Pl. Amend. Compl., pg. 5 [doc. # 22]; see also Pl. Prop. 2^nd Amend. Compl., ¶¶ 35 [doc. # 26]).

On May 6, 2016, James and Sonia Ezell, who, by this point, were Alabama domiciliaries, filed the instant suit against JPMC employees (and Louisiana domiciliaries), Angela Ruth Payne, Charlotte Russ, Todd C. Sylvester, and Shillen Johnson, in the Monroe City Court, Ouachita Parish, Louisiana. Plaintiffs allege that each of the assignments purportedly confected by defendants, involving their New Jersey property, are fraudulent.

Specifically, as to Russ and Payne, plaintiffs contend that

1. Ms. Russ did not appear before Ms. Payne as Vice-President of JPMC and attorney in fact for the FDIC-R because none of Washington Mutual's mortgage loans were received by the FDIC as of September 25, 2008.

2. JPMC was not the attorney in fact for the FDIC-R on April 18, 2014.

3. Ms. Russ had no knowledge as to the whereabouts, possession or ownership of Plaintiffs' November 18, 2003 mortgage loan with Washington Mutual.

4. Ms. Payne, as a notary public and JPMC employee, knew or should have known that Ms. Russ has never been a Vice-President of JPMC.

5. Ms. Russ and Ms. Payne conspired with Nationwide Title Clearing, Inc. and JPMC to assist JPMC's attempt to steal money or real property from Mr. Ezell.

6. Ms. Russ' actions violated Louisiana Revised Statutes §§ 14:12, 14:26 and 14:72.2.

7. Ms. Payne's actions violated Louisiana Revised Statutes §§ 35:601, 14:12, 14:26, and 14:72.2.

As to Johnson and Sylvester, plaintiffs assert that,

1. Ms. Johnson did not appear before Mr. Sylvester as Vice-President of JPMC because none of Washington Mutual's mortgage loans were received by the FDIC as of September 25, 2008 and, therefore, the FDIC-R could not have assigned the mortgage to JPMC on April 18, 2014.

2. JPMC was not the attorney in fact for the FDIC-R on April 18, 2014.

3. Ms. Johnson had no knowledge as to the whereabouts, possession or ownership of plaintiffs' November 18, 2003, mortgage loan with Washington Mutual.

4. Mr. Sylvester, as a notary public and JPMC employee, knew or should have known that Ms. Johnson has never been a Vice-President of JPMC.

5. Ms. Johnson and Mr. Sylvester conspired with the Law Office of Adam W. Scheinbach, Zuker Goldberg & Ackerman, LLC, JPMC and Penny Mac to assist JPMC and PennyMac's attempt to steal money or real property from Mr. Ezell.

6. Ms. Johnson's actions violated Louisiana Revised Statutes §§ 14:12, 14:26 and 14:72.2.

7. Mr. Sylvester's actions violated Louisiana Revised Statutes §§ 35:601, 14:12, 14:26, and 14:72.2.

On June 17, 2016, while the case was still pending in Monroe City Court, defendants,Payne, Russ, and Sylvester, filed Exceptions of Lack of Subject Matter Jurisdiction, No Right of Action, No Cause of Action, Prescription and Alternative Motion to Dismiss for Nonconformity with Article 891 and Exception of Vagueness.

On, or about July 15, 2016, plaintiffs filed their opposition to defendants' motion to dismiss wherein they asserted that defendants' actions transgressed federal law. They argued that the actions of the two notaries, Angela Payne and Todd Sylvester, violated plaintiffs' civil rights under the equal protection and due process clauses of the U.S. Constitution. In addition, the purported assignments violated the National Stolen Property Act, 18 U.S.C. §§ 2314 and 1342. Plaintiffs also vaguely referenced 42 U.S.C. § 1981 and the First, Fourth, Thirteenth and Fourteenth Amendments of the U.S. Constitution.

Pursuant to plaintiffs' federal law allegations, first asserted in their opposition brief, defendants, Payne, Russ, and Sylvester, removed the case to federal court on August 10, 2016, on the basis of federal question jurisdiction, 28 U.S.C. § 1331.⁶ The instant motion to dismiss for failure to state a claim upon which relief can be granted promptly followed on August 22, 2016.

On November 4, 2016, plaintiffs filed a motion for leave of court to file an amended complaint and an out-of-time opposition to defendants' motion to dismiss. [doc. # 13].⁷ On December 8, 2016, the court granted plaintiffs' motion, but explained that it would extendconsideration of defendants' motion to dismiss to encompass plaintiffs' amended complaint. (Dec. 8, 2016, Order [doc. # 20]).⁸ On December 16, 2016, defendants filed a reply memorandum in support of their motion to dismiss. [doc. # 25]. Thus, the matter is ripe.⁹

12(b)(6) Standard

The Federal Rules of Civil Procedure sanction dismissal where the plaintiff fails "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A pleading states a claim for relief when, inter alia, it contains a "short and plain statement . . . showing that the pleader is entitled to relief . . ." Fed.R.Civ.P. 8(a)(2).

To withstand 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007)). A claim is facially plausible when it contains sufficient factual content for the court "to draw the reasonable inference that the defendant is liable for the misconductalleged." Id. Plausibility does not equate to possibility or probability; it lies somewhere in between. See Iqbal, supra. Plausibility simply calls for enough factual allegations to raise a reasonable expectation that discovery will reveal evidence to support the elements of the claim. See Twombly, 550 U.S. at 556, 127 S.Ct. at 1965. Although the court must accept as true all factual allegations set forth in the complaint, the same presumption does not extend to legal conclusions. Iqbal, supra. A pleading comprised of "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" does not satisfy Rule 8. Id. Moreover, courts are compelled to dismiss claims grounded upon invalid legal theories even though they might otherwise be well-pleaded. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827 (1989).

Nevertheless, "[t]he notice pleading requirements of Federal Rule of Civil Procedure 8 and case law do not require an inordinate amount of detail or precision." Gilbert v. Outback Steakhouse of Florida Inc., 295 Fed. Appx. 710, 713 (5^th Cir. Oct. 10, 2008) (citations and internal quotation marks omitted). Further, "a complaint need not pin plaintiff's claim...