Miller v. Loans

• Citation: 747 F.Supp.2d 947
• Decision Date: 30 September 2010
• Docket Number: Case No. 2:09–CV–674.
• Parties: Dana J. MILLER, Plaintiff,v.COUNTRYWIDE HOME LOANS, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

747 F.Supp.2d 947

Dana J. MILLER, Plaintiff,

v.COUNTRYWIDE HOME LOANS, et al., Defendants.

Case No. 2:09–CV–674.

United States District Court, S.D. Ohio, Eastern Division.

Sept. 30, 2010.

Dana J. Miller, Galena, OH, pro se.Kimberly Smith Rivera, James Scott Wertheim, McGlinchey Stafford PLLC, Phyllis A. Ulrich, Carlisle McNelli Rini Kramer & Ulrich Co., LPA, Cleveland, OH, for Defendants.

OPINION AND ORDER

EDMUND A. SARGUS, JR., District Judge.

Plaintiff Dana J. Miller, who is proceeding pro se, is (or was) a resident homeowner in Delaware County, Ohio. His original Complaint was filed on August 3, 2009; however, on September 28, he moved for an extension of time to file an amended complaint, which led to his filing of the present Amended Complaint (Doc. 19) on October 19, 2009,¹ naming the same defendants less two “John Does” who had been included in the original Complaint. In much greater detail than his original pleading, Plaintiff now complains of procedures employed and costs imposed in inducing him to refinance his home loan and mortgage on March 28, 2006, and in the subsequent foreclosure proceedings against him initiated by Defendant Countrywide Home Loans, Inc. (Countrywide) in the Common Pleas Court of Delaware County, Ohio, on August 28, 2008, which led to a judgment in foreclosure by that court on April 21, 2009. Besides Countrywide, the Defendants named in the Amended Complaint are Quantum Appraisal Company, which Plaintiff believed had done the appraisal that was used to support the refinanced home loan and mortgage,² and Mortgage Electronic Registration Systems, Inc, (MERS), named in documents pertinent to the foreclosure proceeding, as well as the law firm of Carlisle, McNelli, Rini, Kramer and Ulrich Co. LPA (Carlisle–McNeilli), which represented Countrywide in the foreclosure proceeding against Plaintiff Miller.

After 65 paragraphs of generally applicable factual allegations related primarily to circumstances surrounding the refinancing of his home loan and its mortgage in 2006 as well as to various details of, or related to, the subsequent foreclosure proceedings that followed, beginning in August 2008 and ending with entry of judgment on April 21, 2009 ( Id., ¶¶ 10–75), Plaintiff attempts to set out eight separate causes of action. As titled by Plaintiff in the Amended Complaint, they may be summarized as follows:

First Cause of Action—FRAUD (presumably under the law of Ohio) “from the beginning of solicitation for the mortgage loan to Plaintiff, through the fraudulent appraisal and continuing into the foreclosure action and attempted theft of the Plaintiff's property.” ¶¶ 76–78.

Second Cause of Action—TILA VIOLATIONS (expressly under 15 U.S.C. § 1635 and regulation Z 226.23) (12 C.F.R 226.23) for failure to provide documents and full disclosure prior to and/or at closing. ¶¶ 79–84.

Third Cause of Action—PREDATORY LENDING (presumably under the law of Ohio) [see ORC § 1345.031(A) and (B)(12) (mortgage loan “flipping”) ] in Countrywide's solicitation of, and arrangements for, Plaintiff's refinancing of his mortgage loan. ¶¶ 85–88.

Fourth Cause of Action—FRAUDULENT CONCEALMENT (presumably under the law of Ohio) by Countrywide and Quantum in failing to disclose the true nature of the mortgage loan refinancing based on Quantum's inflated appraisal. ¶¶ 86–96.

Fifth Cause of Action—VIOLATION OF FAIR DEBT COLLECTION PRACTICES ACT (expressly under 15 U.S.C. § 1601 et seq.) by Countrywide's failure “to honestly disclose the true nature of the alleged loan.” (15 U.S.C. § 1601(a)) Plaintiff also alleges Countrywide's violations of the Act in failing to provide validation and verification of Plaintiffs mortgage within 28 days of his demand made June 10, 2008, or before foreclosure proceedings were commenced against him on August 28, 2008 (15 U.S.C. § 1692). ¶¶ 98–106.

Sixth Cause of Action—VIOLATION OF THE OHIO DECEPTIVE TRADE PRACTICES ACT (expressly under O.R.C. §§ 1345.01—13) by Countrywide and Quantum in failing to accurately, fairly and honestly appraise Plaintiff's property and conspiracy to produce an inflated appraisal to fraudulently qualify Plaintiff for a loan to obtain unjust enrichment from Plaintiff. ¶¶ 107–111.

Seventh Cause of Action—WIRE AND MAIL FRAUD (expressly in violation of 18 U.S.C. § 1342) by Defendants in using interstate telephone lines, electronic mail and United States Postal Service to transmit false and fraudulent representations in furtherance of their fraudulent dealings with Plaintiff. ¶¶ 112–116.

Eighth Cause of Action—VIOLATIONS OF RICO (expressly 18 U.S.C. §§ 1961, 1962, 62(b), and 62(c)) in a pattern of racketeering activity involving more than two acts of wire fraud in violation of 18 U.S.C. § 1343 and by fraudulent activities and schemes to obtain money and property by means of false and fraudulent pretenses and by making knowingly false and misleading representations with the intent that Plaintiff and others similarly situated surrender ownership of real property as a result of such fraudulent actions, including fraudulent foreclosure actions. ¶¶ 117–129.

In the closing sub-paragraphs of his Amended Complaint, Plaintiff expressly seeks threefold actual damages totaling not less than $12,000,000 as provided in 18 U.S.C. § 1964(c), plus $12,000,000 punitive damages, plus fees and costs, and such “other, further, or general relief that this Court deems just and equitable.”

Plaintiff asserts there is “subject matter jurisdiction under the laws of the United States of America, Article III § 2, U.S. Constitution: 42 U.S.C. 1983, 1985 and 1986 (failure to prevent) as conferred by the U.S. Constitution 28 USC 1331 and 1343 under the 1st, 4th, 5th, 6th, 8th, and 14th Amendments.” Doc. 19, ¶ 7. Plaintiff also refers to jurisdiction “supplemented by 28 USC 1367(a)” and to “constitutional violations of state and federal law, procedure and practice by state and federal officials and officers of the court.” Ibid. (italics. by Pltf.).

Posture of the Case and Applicable Law.

Defendant Quantum having been dismissed as explained in note 1 above, the Court now has before it separate motions to dismiss based on Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. Pro., filed by Defendants Countrywide and MERS (Doc. 25) and by Defendant Carlisle–McNelli (Doc. 28). Each was filed before answer or other pleading responsive to either Plaintiff's original or Amended Complaint. Because Plaintiff is thus far proceeding pro se and the pleadings are as yet incomplete, the issues presented are Limited and subject to liberal analysis in Plaintiff's favor.

Both motions before the Court recognize this to the extent they agree that the Court is basically required to construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of any of his claims that would entitle him to relief. See, e.g., LRL Properties v. Portage Metro Housing Authority, 55 F.3d 1097, 1101 (6th Cir.1995) (cited by Defendants Countrywide and MERS); Bower v. Federal Express Corp., 96 F.3d 200, 203 (6th Cir.1996) (cited by Defendant Carlisle–McNelli). Defendants cite further authority to the effect that the Court is not required to supply omitted critical facts or accept unwarranted factual inferences or legal conclusions. See Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389 (6th Cir.1998); Kottmyer v. Maas, 436 F.3d 684 (6th Cir.2006). And, indeed, recent Supreme Court authority appears to have added still further standards to Rule 12(b)(6) analysis. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (“Factual allegations must be enough to raise a right to relief above the speculative level.”); Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) (“When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”).

The Court is well aware of this authority and its pertinence to the issues presented by the Defendants' two motions. However, this Plaintiff is proceeding pro se while none of the above authority involves a pro se plaintiff, and as the Second Circuit has recognized, recent Supreme Court authority also makes clear that circumstance remains an important consideration in evaluating the complaint in this case, Citing the Supreme Court's opinion in Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam), the circuit court explains:

.... The Court reversed the Tenth Circuit's dismissal of a prisoner's Eighth Amendment claim, holding that the court of appeals had “depart[ed] from the liberal pleading standards” of Rule 8(a). Id. at 2200. The Court reiterated that “[s]pecific facts are not necessary,” and that the complainant “need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Id. (quoting Twombly, 127 S.Ct. at 1964 (internal quotation marks omitted) (alteration in original)). But Erickson also emphasized that the court of appeals' departure from Rule 8(a)'s liberal pleading standard was particularly unwarranted because the complainant was pro se: “A document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Id. (internal quotation marks and citations omitted).Boykin v. KeyCorp., 521 F.3d 202, 213–14 (2nd Cir.2008).

Bearing in mind this less-stringent pleading standard, the Court first notes that Plaintiff still must present fair notice of a claim or claims against the Defendants that are within this Court's jurisdiction. Pursuant to Article III of the Constitution, this is a court of limited jurisdiction, as possibly applicable in these circumstances, authorized to hear civil cases arising under the...