Muhammad v. O'Brien
| Decision Date | 05 April 2021 |
| Docket Number | Civil Action 1:20-CV-4802-MLB-JSA |
| Court | U.S. District Court — Northern District of Georgia |
| Parties | ALI S. MUHAMMAD, Plaintiff, v. TIM O'BRIEN, CEO of Select Portfolio Servicing, Inc., et al., Defendants. |
NON-FINAL REPORT AND RECOMMENDATION ON A MOTION TO DISMISS
Plaintiff Ali S. Muhammad, proceeding pro se, originally filed this action in the State Court of Fulton County on or about October 13, 2020, against Defendants Tim O'Brien, CEO of Select Portfolio Servicing, Inc.; Select Portfolio Servicing Inc. (“SPS”); JPMorgan Chase Bank, USA (“Chase”); and Deutsche Bank.[1] See Compl. [1-2]. Plaintiff alleges that Defendants breached a settlement agreement with him related to two prior court actions he filed against them. On or about November 2, 2020 Plaintiff filed an Amended Complaint [2]. On November 25 2020, Defendant SPS removed the action to this Court, with the consent of Chase and Deutsche Bank, the other Defendants who had been served with the Complaint at the time of removal.[2] See Notice of Removal [1] at ¶ 3, Ex. A [1-1].
The action is now before the Court on the Motion to Dismiss Plaintiff's Complaint and Amended Complaint [4] filed by Chase and the Motion to Dismiss Plaintiff's Amended Complaint [8] filed by SPS, Deutsche Bank, and O'Brien (collectively the “Motions to Dismiss”). For the reasons set forth below, the undersigned RECOMMENDS that the Motions to Dismiss [4][8] be GRANTED, and that Plaintiff's claims against Chase, SPS, and Deutsche Bank be DISMISSED for failure to state a claim although with leave to replead within thirty (30) days. The undersigned RECOMMENDS that Plaintiff's claims against O'Brien be DISMISSED without prejudice under Rule 4(m) based on Plaintiff's failure to serve him with the summons and Complaint within 90 days of filing the Complaint.
This is at least the fifth case the Plaintiff has filed in this Court, or has had removed to this Court, arising out of various disputes with Chase and other entities related to property located at 1560 Ravens Run, Jonesboro, Georgia 30226 (the “Property”). On January 13, 2015, Plaintiff filed a lawsuit against Chase, SPS, and other Defendants arising out of disputes over the Property, the mortgage loan, and Security Deed related to the Property. See Muhammad v. Dimon, et al., Civil Action No. 1:15-CV-0107-AT-ECS, N.D.Ga. (“Muhammad I”). Judge Totenberg dismissed Plaintiff's Complaint in that case for failure to state a claim on July 30, 2015. On December 29, 2015, Plaintiff filed a second federal action, this time asserting claims against Chase, SPS, Deutsche Bank, and other Defendants. See Muhammad v. JPMorgan Chase Bank, USA, et al., Civil Action No. 1:15-CV-4479-AT-WEJ, N.D.Ga. (“Muhammad II”). On June 20, 2016, Judge Totenberg dismissed Plaintiff's claims in Muhammad II.
On October 31, 2017, Plaintiff filed a third lawsuit against Chase, Deutsche Bank, SPS, and other Defendants. See Muhammad v. Deutsche Bank Nat'l Tr. Co. et al., No. 1:17-CV-4330-MLB-JSA, N.D.Ga. (“the 2017 Action”). Judge Brown dismissed Plaintiff's claims in that case on September 6, 2018. On December 20, 2018, Plaintiff filed another case against Chase, Deutsche Bank, SPS, and other Defendants, which was removed to this Court on January 24, 2019. See Muhammad v. JP Morgan Chase Bank, USA, et al., No. 1:19-CV-0417-MLB-JSA, N.D.Ga. (“the 2019 Action”).[3] After the undersigned recommended that the District Judge dismiss all claims in that case, Plaintiff voluntarily dismissed the 2019 Action on July 19, 2019.
Over a year later, on October 13, 2020, Plaintiff filed a “Verified Complaint for Enforcement of Confidential Settlement Agreement and Release; for Declaratory Judgment; for Damages for Breach of Agreement; and for Refund of All Monies Paid and Other Relief” [1-2] (“Complaint”) in the State Court of Fulton County initiating this action against Chase, SPS, Deutsche Bank, and O'Brien. On or about November 2, 2020, Plaintiff filed an “Amended Verified Complaint for Enforcement of Confidential Settlement Agreement and Release; for Declaratory Judgment; for Damages for Breach of Agreement; and for Refund of All Monies Paid and for Violation of the FDCPA and FCRA” [2] (“Amended Complaint”). The following facts are taken from Plaintiff's Amended Complaint and, unless otherwise noted, are assumed to be true for the purpose of resolving the pending motions.
Plaintiff alleges that, on or about July 2, 2019, he and Chase entered into a “Confidential Settlement Agreement and Release, ” “to completely resolve and release two pending court actions, referred to as the 2017 Action and the 2019 Action.” Amend. Compl. [2] at ¶ 2, Ex. A [2-1] (“Settlement Agreement”).[4] The Settlement Agreement states that Plaintiff shall file a “Notice of Dismissal with Prejudice” in the 2019 Action, that he will withdraw his motion for reconsideration in the 2017 action, and that he agrees that he will not file any additional motions for reconsideration and/or appeals of either the 2017 Action or the 2019 Action. Settlement Agreement at ¶¶ 3.1-3.3 (emphasis in original). Further, the parties agree that, within thirty days of Plaintiff's dismissal with prejudice of the 2019 Action and the withdrawal of his motion for reconsideration in the 2017 action, Chase will pay $2500 to Plaintiff. Id. at ¶ 3.4. Plaintiff also agrees to a complete release of any and all claims against Chase, any affiliated individual or entity, or any loan investor or servicer that has any interest in the Property, Loan, or Security Deed, arising out of the Loan, the Property, the Security Deed, the Released Claims, or any other claims or defenses that he could have raised in the 2017 Action, the 2019 Action, or any other action brought by Plaintiff against Chase. Id. at ¶ 4.
Plaintiff further alleges that Defendant SPS is the “servicer for the mortgage loan in this matter, ” and that Defendant Deutsche Bank “is the owner and holder of the mortgage note in question or is the investor in that mortgage.” Id. at ¶ 4. He alleges that, subsequent to entering the Settlement Agreement with Chase, he sent a to his Amended Complaint is signed only by Plaintiff, not by Chase. See Amend. Compl., Ex. A [2-1] at 7. “Demand letter to Defendant O'Brien advising that: Defendant Select Portfolio Servicing had Cancelled $270, 705.21 in debt against Plaintiff's account pursuant to a Cancellation of Debt Notice dated 06/27/2019.” Id. at ¶ 7.[5] Plaintiff alleges that he informed O'Brien that his “account should have a zero balance based upon the amount of debt cancelled, which was greater than the mortgage loan balance and exceeded the value of the property in question, ” and that he demanded “a refund of all amounts paid in 2019.” Id.[6] He contends that, despite the “Demand letter notice, ” SPS “continued to breach the Agreement and their own Debt Cancellation documents by continuing to send statements demanding payment of $9, 367.82.” Id. at ¶ 8.
Plaintiff has asserted six counts in the Amended Complaint. In Count I, “Enforcement of Agreement, ” Plaintiff alleges that O'Brien and Chase violated the Settlement Agreement by “continuing to collect a mortgage debt that they were not entitled to collect based upon both their Agreement and the Cancellation of Debt documents, ” “refusing to reduce Plaintiff's account to zero balance, ” “refusing to record a Satisfaction of Mortgage Debt, ” and “refusing to refund monies paid by Plaintiff in 2019 after the mortgage debt had been cancelled.” Id. at ¶ 10. Plaintiff requests that the Court “enforce the Agreement of the parties in accordance with the Settlement Agreement, require SPS Inc. to reduce Plaintiff's mortgage loan account to zero balance, require Defendant to record a Satisfaction of Mortgage and Cancellation of Security Deed against the subject property in the Public Records of the County where the property is located, and grant such other and further relief as the Court deems equitable, appropriate and just.” Id.
In Count II, for “Money Damages for Breach of Contract, ” Plaintiff alleges the O'Brien, SPS, and Chase “breached not only this Settlement Agreement herein but also violated the letter and spirit of the parties good faith and intentions.” Id. at ¶ 12. Plaintiff “demands Judgment against Defendants for actual, compensatory, statutory, consequential and exemplary damages for Defendants lack of good faith in breaching this Settlement Agreement and the letter and spirit of Plaintiff's Exhibits A through E.” Id. at ¶ 13.
In Count III, for “Declaratory Relief, ” Plaintiff alleges that “Declaratory Relief is appropriate under the facts and circumstances of this Complaint, ” and that he “has no other adequate remedy at law.” Id. at ¶¶ 15, 17. He requests that the Court “issue a Final Judgment and Declaration that: the Mortgage Debt as evidenced by the Mortgage Documents and Cancellation of debt documents has been Cancelled and Discharged.” Id. at ¶ 19.
In Count IV, for “Refund of All Monies Paid, ” Plaintiff states that his “Mortgage Loan Debt on the subject property was Cancelled pursuant to the Cancellation of Debt Form 1099-C, ” and he “is entitled to a refund of all payments made after the debt was cancelled on June 27, 2019.” Id. at ¶¶ 21-23.
In Count V, for “Violation of the FDCPA, ” Plaintiff alleges that O'Brien and SPS “are continuing to collect amounts already written off and charged off as a tax write off.” Id. at ¶ 27. Plaintiff alleges that “Defendants are still reporting the Cancelled Debt on Plaintiff's Credit Reports, they continue to seek to collect a debt which has already been cancelled and is not owed, in violation of the FDCPA (Fair Debt Collection Practices Act).” Id. at ¶ 28. Plai...
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