Laverpool v. Taylor Bean & Whitaker Reo LLC, Civil Action No. 16–690 (CKK)

• Decision Date: 10 January 2017
• Docket Number: Civil Action No. 16–690 (CKK)
• Parties: Keith LAVERPOOL, Plaintiff v. TAYLOR BEAN & WHITAKER REO LLC, et al., Defendants
• Court: U.S. District Court — District of Columbia

229 F.Supp.3d 5

Keith LAVERPOOL, Plaintiff

v.TAYLOR BEAN & WHITAKER REO LLC, et al., Defendants

Civil Action No. 16–690 (CKK)

United States District Court, District of Columbia.

Signed January 10, 2017

Keith Laverpool, Conyers, GA, pro se.

Matthew R. Brooks, Troutman Sanders LLP, Atlanta, GA, Darren W. Dwyer, Troutman Sanders LLP, Washington, DC, Michelle Jeanette Hirsch, Office of Attorney General of the State of Georgia, Atlanta, GA, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, United States District Judge

Plaintiff Keith Laverpool brings this action pro se challenging the foreclosure of his property located in Lithonia, Georgia and the servicing of his mortgage prior to the foreclosure. Plaintiff names three separate classes of defendants in this action: (i) the private banking institutions that serviced his mortgage, Taylor Bean & Whitaker REO, LLC; Taylor Bean & Whitaker Mortgage; and RoundPoint Mortgage Servicing Corp. (collectively, "Mortgage Defendants"); (ii) Judge Clarence F. Seeliger of the Georgia State Superior Court, who presided over the foreclosure action ("Defendant Seeliger"); and (iii) the U.S. Department of Housing and Urban Development ("HUD"). Plaintiff brings various civil rights claims under 42 U.S.C. § 1983, claims of "Dishonest government Services and Mail Fraud," and claims of "racketeering violations" or RICO violations under 18 U.S.C. §§ 1961 –1968. Compl. ¶¶ 1–6, 68–96. While Plaintiff's claims and legal theories are not a model of clarity, the Court construes his pro se filings liberally in considering the instant motions. Toolasprashad v. Bur. of Prisons , 286 F.3d 576, 583 (D.C. Cir. 2002).

Presently before the Court are the motion to dismiss filed by Judge Seeliger and the separately filed motion to dismiss of the three Mortgages Defendants.¹ Also before the Court is Plaintiff's Motion to Amend Complaint. Although the Court has taken pains to advise Plaintiff of the consequences of failing to respond to the dispositive motions filed by the Mortgage Defendants and Judge Seeliger, Plaintiff has not filed any opposition to the Motions to Dismiss currently before the Court.² The Court, nonetheless, shall not treat these Motions as conceded, but shall examine the substance of Defendants' asserted bases for dismissal. Upon consideration of the parties' submissions,³ the applicable authorities, and the entire record, the Court finds that the Court lacks jurisdiction over the claims against Judge Seeliger and the Mortgage Defendants, and accordingly shall GRANT Defendant Judge Seeliger's [5] Motion to Dismiss and shall also GRANT the [4] Motion to Dismiss of Defendants Taylor Bean & Whitaker Reo LLC, Taylor Bean & Whitaker Mortgage, and Round Point Mortgage Servicing Corp. Furthermore, the Court shall DENY Plaintiff's [14] Motion for Leave to Amend Complaint as futile.

I. BACKGROUND

This action arises out of the circumstances surrounding the foreclosure of Plaintiff's residential property in DeKalb County, Georgia and is only Plaintiff's latest in a long line of challenges to the foreclosure of his property. Whereas the resolution of the motions before the Court turn more on the procedural history of Plaintiff's prior litigation than on the underlying facts, the Court shall set out the factual background only to the extent necessary to fairly address the motions before it. However, the Court shall set out in greater detail the history of the prior litigation that preceded Plaintiff's filing of this action.

A. Factual Background

In June 2007, Plaintiff obtained a loan ("the Loan") from Taylor Bean & Whitaker Mortgage in the amount of $177,219. Compl. ¶ 13. The Loan was secured by the deed to the residential property located at 1580 Smithson Court, Lithonia, Georgia. See, e.g.,id. Ex. J at 2. It appears on September 23, 2009, RoundPoint Mortgage Servicing Corporation began servicing Plaintiff's loan. Id. ¶ 26; id. Ex. E (Jan. 27, 2015, Letter from Troutman Sanders to Plaintiff indicating that Taylor, Bean & Whitaker Mortgage Corp. "is no longer servicing your Loan. Effective as of September 23, 2009, servicing of the Loan was transferred to RoundPoint Mortgage Servicing Corporation."). Experiencing difficulties meeting his payment obligations under the Loan, Plaintiff requested and indeed received temporary assistance from RoundPoint; in a letter dated July 12, 2012, RoundPoint agreed to accept reduced monthly payments for a period of three months under a Temporary Repayment Agreement. Compl., Ex. C; see also Compl. ¶ 32; Seeliger Mot. to Dismiss at 7. Plaintiff continued to have difficulties making payments on the Loan and made additional efforts "in the process of navigating the loan modification process." Compl. ¶ 34. Plaintiff's failure to make payments on the Loan ultimately led to the foreclosure action at issue in this matter.

B. Foreclosure Action and Prior Collateral Proceedings

Although the foreclosure proceedings are at the heart of Plaintiff's claims, his Complaint and the exhibits annexed thereto do not lay out the foreclosure proceedings particularly clearly. Accordingly, the Court looks to the recitation of the facts surrounding the foreclosure proceedings set out in the Opinion and Order of the United States District Court for the Northern District of Georgia in Plaintiff's wrongful foreclosure action, Laverpool v. Taylor, Bean & Whitaker Mortgage Corp. , No. 1:15cv566, 2015 WL 8179844 (N.D. Ga. Dec. 7, 2015) (" Laverpool II ").⁴ See Fletcher v. Evening Star Newspaper Co. , 133 F.2d 395, 395 (D.C. Cir. 1942) (permitting the court to take judicial notice of opinions involving "the same subject matter or questions of a related nature between the same parties"); see also infra section III.A (further discussing the permissibility of the Court's evaluation of the record beyond the complaint in evaluating whether a case must be dismissed for lack of subject matter jurisdiction). Wherever possible, however, the Court shall also refer to Plaintiff's Complaint.

Plaintiff again defaulted on the Loan obligations, ultimately—though not immediately—resulting in the foreclosure proceedings that Plaintiff challenges in this action. By letter dated August 28, 2014, RoundPoint notified Plaintiff that he was in default. Compl., Ex. F.⁵ Plaintiff appears to have completed an application for loan modification on September 1, 2014, using the Uniform Borrower Assistance Form provided to him by Roundpoint. Id. It is unclear to this Court whether RoundPoint ever received this September 1, 2014, application for loan modification, though the Court will accept as true Plaintiff's assertion that he "submitted documentation for a loan modification with RoundPont Mortgage Servicing Corporation." Id. ¶ 18.⁶ The Court nonetheless notes that Plaintiff seems to implicitly acknowledge that even though he sent the request, it does not appear to have been processed.⁷ Id. Ex. F. The Court additionally notes that the United States District Court for the Norther District of Georgia found that Plaintiff's first application for loan modification with RoundPoint was submitted on "January 9, 2015, at the earliest." Laverpool II , 2015 WL 8179844, at *2.

Following Plaintiff's default on his loan obligations, Taylor Bean Whitaker Mortgage ("TBW Mortgage") initiated foreclosure proceedings. In a letter prepared by counsel and dated December 29, 2014, TBW Mortgage advised Plaintiff of his default on the Loan and that a foreclosure sale of the property securing the loan (his residential property located at 1580 Smithson Court) would take place on February 3, 2015. Id. , at *2. The sale was held and the Property was purchased by TBW Mortgage, which filed a petition on February 23, 2015, in DeKalb County Superior Court, seeking to have the court confirm and approve the foreclosure sale ("Confirmation Action"). Id. ; see also Seeliger Mot. to Dismiss, Ex. A. This Confirmation Action was assigned to Judge Seeliger, who issued an order on April 14, 2015, reviewing and approving of the manner in which the foreclosure sale had been conducted, and finding that "Petitioner fulfilled all of the legal requirements of conducting a non-judicial foreclosure sale required by statute, including notice, advertisement, and conduct of sale. The property at issue brought its true market value of $110,000.00 at the time of the foreclosure sale. The Court hereby confirms the foreclosure sale conducted by Petitioner regarding the property."Taylor Bean & Whitaker Mortgage v. Laverpool , No. 15cv2569–3 (DeKalb Cnty. Super. Ct. Apr. 14, 2015) (Order confirming foreclosure sale); Seeliger Mot. to Dismiss, Ex. B at 2. Plaintiff filed a motion for reconsideration, which the Superior Court denied on June 24, 2015; and filed a notice of appeal with the Court of Appeals for the State of Georgia, which dismissed the appeal on August 26, 2015, for lack of jurisdiction on account of Plaintiff's failure to timely file his notice of appeal. Laverpool v. Taylor, Bean & Whitaker Mortgage Corp. , No. A15A2293 (Ga. Ct. App. Aug. 26, 2015) (Order dismissing appeal).

As these foreclosure proceedings commenced and proceeded, Plaintiff pursued multiple avenues in seeking to protect his property against foreclosure. Plaintiff again applied for loan modification, again submitting the Uniform Borrower Assistance Form dated January 1, 2015. Compl., Ex. H. RoundPoint appears to have received and processed this second request. Id. , Ex. G (e-mails between Scott Curry, a "Portfolio Specialist" with RoundPoint, and Plaintiff dated between January 18, 2015, and January 20, 2015, seemingly referring to Plaintiff's loan modification application dated January 1, 2015).

Additionally, in the months leading up to TBW Mortgage's issuance of the foreclosure notice letter on December 29, 2014, Plaintiff filed four separate bankruptcy cases in the Northern District of Georgia. Each was dismissed. Laverpool II , 2015 WL 8179844, at *1, n.1. Plaintiff also filed two separate actions...