Fedorova v. Foley
| Docket Number | 1:22-cv-991 |
| Decision Date | 10 August 2023 |
| Parties | ELENA FEDOROVA, Plaintiff, v. WILLIAM P. FOLEY, II, et al., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
REPORT AND RECOMMENDATION
Pro se plaintiff, Elena Fedorova (“Fedorova”) filed the present lawsuit related to the mortgage of property on Hastings, Michigan. This matter is now before the Court on defendant PennyMac Loan Services, LLC's motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P 12(b)(6) (ECF No. 82).
The Court previously set out the factual background for Fedorova's lawsuit:
Opinion (ECF No. 196, PageID.1409-1410).
PennyMac has moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. A complaint may be dismissed for failure to state a claim if it fails to give the defendants a fair notice of the claim and the grounds upon which it rests. Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007).
To 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. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotation marks omitted).
In making this determination, the complaint must be construed in the light most favorable to the plaintiff, and its well-pleaded facts must be accepted as true. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). While Pro se pleadings are to be liberally construed, see Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011), “this court is not required to conjure up unpled allegations.” Dietz v. Sanders, 100 Fed.Appx. 334, 338 (6th Cir. 2004). Thus, “an unadorned, the - defendant - unlawfully - harmed - me accusation” is insufficient to state a claim for relief. See Iqbal, 556 U.S. at 678. Finally, “[w]hen a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein.” Bassett v. National Collegiate Athletic Association, 528 F.3d 426, 430 (6th Cir. 2008).
Fedorova's 119-page complaint is a collection of allegations against over 100 defendants spread across the country. The complaint appears to consist of 28 counts, many of which contain multiple claims against multiple defendants.[1] Fedorova's complaint appears based on a theory that the American real estate mortgage system is a criminal scheme and that the defendants (including such diverse entities and governmental agencies as JP Morgan Chase, the American Land Title Association, Detroit Legal News Publishing, LLC, the United States Department of Justice, the Security and Exchange Commission, the Florida Office of Governor DeSantis Notary Section, the Illinois Attorney Registration and Disciplinary Committee [sic], and the State Bar of California) are all part of that criminal scheme.
Id.[2] Plaintiff also alleged that former defendant Frank Bisigano (“Bisigano”) “is a former CEO of JP Morgan Chase Bank who operates a sophisticated enterprise (Bisignano's Enterprise) in terms of receipt, collection, depositing, and disbursement of funds.” Id. at PageID.17. “Biginano's [sic] Enterprise is printing and mailing Fedorova ‘billing statements'; Notices; letters; ‘Modifications'; ‘Payoffs' and other fictitious documents on actor's Penny Mac letterheads.” Id.
Fedorova identified defendant PennyMac as follows:
PennyMac Loan Servicing, LLC, (“PennyMac”, fna Countrywide Financial, Inc.) a low-capitalized entity who rents their names for a fee to be used on letterheads prepared by real Servicers from Foley/Bisignano Enterprises. PennyMac pretends to be Fedorova's Servicer. The business of PennyMac is to pose as a creditor or an agent representing a creditor when in fact it is neither. Despite correspondence and notices posted under the name of PennyMac by unknown people who sign nothing, it actually does not receive nor disburse any money. The entire business model is devoted to steering consumers into default with false statements of authority and false reports that are not related to any data input by any PennyMac employee. They also like to lie about “audits” when “loans” are “boarded,” which seems to be something that never actually happens. Nobody actually says what PennyMac does. It often poses as creditor when it is in fact acting as an agent for third parties. Those third parties, when pushed, cannot supply any corroborative evidence that they own any debt, note or mortgage. They have always been parties to Purchase and Assumption Agreements (both titled as such and using other titles) in which the complete ownership and control of any closing and servicing of any transaction with homeowners is vested in those third parties. In short, the business of PennyMac has [sic] limited to collecting royalties for use of its name - the same as national banks [here: BONY] who pose as trustees of nonexistent trusts implying nonexistent trust accounts with nonexisting unpaid loan accounts. PennyMac has also allowed the hiring of robowitnesses to testify in court in sworn testimony -asserting that PennyMac is a servicer who receives, deposits, and distributes payments from homeowners to creditors. This has always been false. Such witnesses testify that reports offered in court are a compilation of data produced from PennyMac's business of collecting and distributing money. This is also false. The financial technology (FINTECH) companies that perform all such work are not subject to any control or direction from PennyMac, nor are they working indirectly on PennyMac's behalf. In short, virtually all activities attributed to PennyMac are false. Legally they could not be the foundation for any admissible evidence in a court of law nor the foundation for any statement or notice (e.g., a notice of default) that FINTECH companies mail under the letterhead of Ocwen. PennyMac and related companies [here: Caliber] appear in the chain of paper in hundreds of thousands of transactions that are falsely labeled as “mortgage loans [sic]. Without PennyMac's 's [sic] role in foreclosures claiming trillions of dollars due, there would have been no such foreclosures. If the foreclosure actors used the name of any other party, who was actually involved in the money trail, they would have lost each foreclosure attempt,...
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