Liebman v. Deutsche Bank Nat'l Trust Co.

• Decision Date: 11 February 2014
• Docket Number: Civil Action No. 13–1392 CKK
• Citation: Liebman v. Deutsche Bank Nat'l Trust Co., 15 F.Supp.3d 49 (D. D.C. 2014)
• Parties: Jay Liebman, et al., Plaintiffs, v. Deutsche Bank National Trust Company, et al., Defendant.
• Court: U.S. District Court — District of Columbia

15 F.Supp.3d 49

Jay Liebman, et al., Plaintiffs

v.Deutsche Bank National Trust Company, et al., Defendant.

Civil Action No. 13–1392 CKK

United States District Court, District of Columbia.

February 11, 2014

Jay Liebman, Hallandale Beach, FL, pro se.

Andrea Liebman, Hallandale Beach, FL, pro se.

Christopher M. Corchiarino, Goodell, Devries, Leech & Dann, LLP, Baltimore, MD, for Defendant.

Jonathan M. Streisfeld, Fort Lauderdale, FL, pro se.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, UNITED STATES DISTRICT JUDGE

Plaintiffs Jay and Andrea Liebman bring this action pro se challenging the judicial foreclosure of their property as well as the servicing of their mortgage prior to the foreclosure. Presently before the Court are several motions to dismiss filed by various groups of Defendants in this case. Upon consideration of the parties' submissions,¹ the applicable authorities, and the entire record, the Court shall GRANT (1) Defendant Judge Schumacher's [25] Motion to Dismiss Amended Complaint with Prejudice, (2) Defendants Ocwen Loan Servicing LLC and Deutsche Bank's [17] Motion to Dismiss Plaintiffs' Amended Complaint, (3) Defendants Adam Hartley, Scott Sherman, and Baker Donelson Bearman Caldwell & Berkowitz's [18] Motion to Dismiss Plaintiffs' Amended Complaint, and (4) Defendants William C. Erbey, Ronald M. Farris, Joseph Ackerman, Hugo Banziger, Anushu Jain, Jurgen Fitschein, Rainer Neske, Herman–Josef Lamberti, Stefan Krause, Kevin Parker, Pierre De Weck, Clemens Borsig, and Michael Cohrs' [29] Motion to Dismiss Plaintiffs' Amended Complaint. The Court shall also GRANT Defendant Deutsche Bank's [24] Motion to Strike Affidavit of Default Filed by Plaintiffs Against the Trust or in the Alternative Response to Affidavit of Default. The remaining Defendants in this action are dismissed for failure to serve pursuant to this Court's January 14, 2014 [34] Order. Because this Court concludes that it lacks subject matter jurisdiction over claims relating to the propriety of the judicial foreclosure of Plaintiffs' property that have already been decided in Florida state court, this case is dismissed with prejudice to the extent it challenges this judicial foreclosure. To the extent Plaintiffs bring claims that are independent from a challenge to this judicial foreclosure proceeding, these claims are dismissed without prejudice for improper venue and failure to serve. Accordingly, this action is hereby dismissed in its entirety.

I. BACKGROUND

Plaintiffs Jay and Andrea Liebman are Florida residents who have brought suit against Deutsche Bank National Trust Company (“Deutsche Bank”) and a series of individuals and businesses involved in a foreclosure action against their home. Specifically, Plaintiffs sue Deutsche Bank, Joseph Ackerman, Hugo Banziger, Anshu Jain, Jurgen Fitschien, Rainer Neske, Hermann–Josef Lamberti, Stefan Krause, Kevin Parker, Pierre De Weck, Clemens Borsig, Michael Cohrs, Ocwen Loan Servicing LLC, Reena Ruzario, William C. Erbey, Ronald Farris, Ashresh Pandey, Judge Marc Schumacher, Adam Hartley, Scott Sherman, an individual named only as Mr. Baker, an individual named only as Mr. Donelson, an individual named only as Mr. Bearman, an individual named only as Mr. Caldwell, an individual named only as Mr. Berkowitz, an individual named only as Mr. Koplowitz, an individual named only as Mr. Ostrow, five John Doe Defendants (“John Does 1–5”), the Dade County Circuit Court, Kopelowitz Ostrow P.A., Elizabeth Wellborn, Yasmin Chew–Alexis, Brian Koplowitz, Jeffrey Ostrow, Baker Donelson Bearman Caldwell & Berkowitz P.C., and Chantel Grant.² Am. Compl. at 1–2. Plaintiffs contend that foreclosure on their home by Deutsche Bank in Florida state court “is presently pursued under color of law with no standing.” Id. at 3. Specifically, Plaintiffs allege that Deutsche Bank has no proof that it owns the loan related to their home, and, based on allegedly abusive billing practices in the past, has improperly asserted that Plaintiffs are in default on their home loan. Id. at 3–4. Plaintiffs allege a conspiracy led by Deutsche Bank among all the Defendants, including the state court judge presiding over the foreclosure action in Florida state court, to improperly foreclose on their home and the homes of others like them. Plaintiffs request injunctive and declaratory relief “to prevent a great miscarriage of justice”, that is “the threat of foreclosing on [their] home ‘under color of law’ ....” Id. at 4, 14. Plaintiffs also request punitive damages in the amount of ten billion dollars on behalf of themselves and others like them for Defendants' overcharging of mortgage-related fees resulting in improper foreclosures. Id. at 33. In essence, Plaintiffs seek to invoke this Court's “powers of protection against unlawful taking and excessive, deceptive charging on our mortgage saving us from a Fraudulent Foreclosure.” Id. at 26. Invoking 42 U.S.C. § 1983, as well as various other federal statutes and provisions of the United States Constitution, Plaintiffs assert the following counts, apparently all of which are asserted against all of the Defendants: (1) Material Breach of Contract, (2) Duress, (3) Extortion, (4) Conspiracy, (5) Defamation of Character, (6) Theft by Conversion, (7) Breach of Duty, (8) Deception/Deceit, (9) Fraud, (10) Abuse of Process, (11) Negligence, (12) Contradictory Statements, (13) Loss of Consortium, (14) Intentional Infliction of Emotional Distress, (15) Negligent Infliction of Emotional Distress, and (16) False, Deceptive, Misleading Representation. Id. at 37–44.

Plaintiffs filed suit in this Court on September 5, 2013, and filed their [6] Amended Complaint on October 31, 2013. At the time Plaintiffs filed this lawsuit, they were involved in the above-referenced judicial foreclosure action against Deutsche Bank in the Circuit Court of the 11th Judicial Circuit in and for Miami–Dade County, Florida. Id. at 3–4. This case, Deutsche Bank National Trust Company as Trustee for the Registered Holders of CDC Mortgage Capital Trust 2003–HE4 Mortgage Pass–Through Certificates 2003–HE4, et al., v. Liebman, et al., No.2010–CA–35247, was presided over by Defendant Judge Marc Schumacher. On December 19, 2013, Judge Schumacher issued a Final Judgment of Foreclosure in this case, concluding that the Liebmans owed Deutsche Bank $212,212.31. This order also set a date for sale of the foreclosed-upon property.³

II. LEGAL STANDARD

A. Rule 12(b)(1)

A court must dismiss a case pursuant to Rule 12(b)(1) when it lacks subject matter jurisdiction. In determining whether there is jurisdiction, the Court may “consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C.Cir.2003) (citations omitted); see also Jerome Stevens Pharms ., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C.Cir.2005) (“[T]he district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.”). “At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact.” Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1106 (D.C.Cir.2005). In spite of the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the plaintiff's burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. Envtl. Prot. Agency, 121 F.Supp.2d 84, 90 (D.D.C.2000). “Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff['s] factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C.2007) (internal citations and quotation marks omitted).

B. Rule 12(b)(3)

When presented with a motion to dismiss for improper venue under Rule 12(b)(3), the Court “accepts the plaintiff's well-pled factual allegations regarding venue as true, draws all reasonable inferences from those allegations in the plaintiff's favor and resolves any factual conflicts in the plaintiff's favor.” James v. Verizon Servs. Corp., 639 F.Supp.2d 9, 11 (D.D.C.2009). “Because it is the plaintiff's obligation to institute the action in a permissible forum, the plaintiff usually bears the burden of establishing that venue is proper.” Freeman v. Fallin, 254 F.Supp.2d 52, 56 (D.D.C.2003). In order “[t]o prevail on a motion to dismiss for improper venue, the defendant must present facts that will defeat the plaintiff's assertion of venue.” Khalil v. L–3 Commc'ns Titan Grp., 656 F.Supp.2d 134, 135 (D.D.C.2009) (internal citation omitted). Unless there are “pertinent factual disputes to resolve, a challenge to venue presents a pure question of law.” Williams v. GEICO Corp., 792 F.Supp.2d 58, 62 (D.D.C.2011).

C. Rule 12(b)(5)

A court ordinarily may not exercise personal jurisdiction over a party named as a defendant in the absence of service of process (or waiver of service by the defendant). See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999) (citing Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) (“Before a ... court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.”); Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444–45, 66 S.Ct. 242, 90 L.Ed. 185 (1946) (“[S]ervice of summons is the procedure by which a court ... asserts jurisdiction over the person of the party served.”)). Pursuant to Federal Rule of Civil...