Nembhard v. Barrett Daffin Frappier Levine & Block, LLP
| Decision Date | 24 October 2017 |
| Docket Number | CIVIL ACTION NO. 1:17-CV-0746-WSD-JSA |
| Court | U.S. District Court — Northern District of Georgia |
| Parties | LORNA NEMBHARD, Plaintiff, v. BARRETT DAFFIN FRAPPIER LEVINE & BLOCK, LLP, and JP MORGAN CHASE BANK, NATIONAL, Defendants. |
Plaintiff Lorna Nembhard, proceeding pro se, filed the Complaint in this action on March 1, 2017, against Defendants JPMorgan Chase Bank National ("JPMorgan Chase") and Barrett Daffin Frappier Levine & Block, LLP ("Barrett"). Plaintiff claims that the Defendants lack standing to foreclose on the property based on alleged defects in the assignment and transfer of her mortgage. Plaintiff seeks injunctive relief, compensatory and punitive damages, attorney's fees, and litigation costs.
The action is now before the Court on the Motion to Dismiss Plaintiff's Complaint [6] filed by JPMorgan Chase, the Motion to Dismiss [7] filed by Defendant Barrett (collectively the "Motions to Dismiss"), and the "Plaintiff's Motion for Default Judgment against Barrett, Daffin, Frappier, Levine & Block LLP Never Answered to the Complaint Introduction") [10] ("Motion for Default Judgment"). For the reasons discussed below, the undersigned RECOMMENDS that Defendants' Motions to Dismiss [6][7] be GRANTED and that all of Plaintiff's claims be DISMISSED. In sum, the Court concludes that, as a matter of law, Plaintiff's claims must be dismissed on res judicata grounds. Moreover, the Court also finds that Plaintiff's claims must be dismissed because she has failed to assert a plausible claim for relief under any of the theories presented in the Complaint. The undersigned further RECOMMENDS that Plaintiff's Motion for Default Judgment [10] be DENIED.
On October 29, 2013, Plaintiff Lorna Nembhard filed an action in the Superior Court of Gwinnett County against JPMorgan Chase and Martin & Brunavs ("First Action"). See JPMorgan Chase Mot., Ex. A [6-2] (complaint in Superior Court Case No. 13-A-09220-9). Plaintiff styled her complaint in the First Action as an "Emergency Petition for Stay of Previous Discharge Order and Injunction to Halt Foreclosure of Petitioner's Property Due to an Illegal Transfer and Failure by Respondents to Produce Original Note, Schedules, Warranty Deed Show Voluntary Consent." See id. In the First Action, Plaintiff asserted claims for violation of 42 U.S.C. § 1983 and various state laws based on perceived defects in the assignment ofher mortgage and JPMorgan Chase's alleged lack of standing to foreclose on the Property. See id. Plaintiff alleged that "the controlling issues are whether or not Respondents' [sic] have established rights to Petitioner's real property under unsecured debt." Id. at ¶ 2.
On November 27, 2013, the First Action was removed to this Court, as Civil Action No. 1:13-CV-3957-WSD. On April 29, 2014, Judge Duffey entered an Order dismissing Plaintiff's claim for violation of 42 U.S.C. § 1983 on the basis that neither defendant was a state actor, and remanding the action to the Superior Court to address the remaining state law claims after declining to exercise supplemental jurisdiction. See JPMorgan Chase Mot., Ex. B [6-3]. On July 10, 2014, the Superior Court granted JPMorgan Chase's Motion to Dismiss the First Action. See JPMorgan Chase Mot., Ex. C [6-4], at 4 (). Thereafter, Plaintiff filed a Motion for Reconsideration, which was also denied by the Superior Court on November 3, 2014. See JPMorgan Chase Mot., Ex. D-E [6-5][6-6]. Plaintiff's appeals to the Georgia Court of Appeals were also denied. See JPMorgan Chase Mot., Ex. F-H [6-7]-[6-10].
On October 26, 2016, the Superior Court entered an Order granting JPMorgan Chase's Motion for Bill of Peace and permanently enjoining Plaintiff from "filing or serving any pleadings or suits related to the foreclosure and disposition of the[Property]" in the action without prior permission. See JPMorgan Chase Mot., Ex. K [6-12], at 3.
On March 1, 2017, Plaintiff filed an "Emergency Injunction to Halt Wrongful Foreclosure and to Request to Produce Original Note, with Mortgage Schedules, Warranty Deed, Land Titles with ALL Endorsements from Level III Audit" [1] ("Complaint") in this Court. The allegations set forth below are taken from the Plaintiff's Complaint [1] and its attached exhibits.
On November 29, 1996, Plaintiff obtained a mortgage loan in the amount of $68,967.00 from Fidelity National Mortgage Corporation ("Fidelity National"). Comp., Ex. D [1-4], at 2 (Security Deed dated November 29, 1996). The loan was secured by a deed ("Security Deed") to the Plaintiff's residence located at 6422 Wedgeview Drive, Tucker, Georgia 30084 (the "Property"). Id. Under the terms of the Security Deed, Plaintiff "grant[ed] and convey[ed] to [Fidelity National] and [Fidelity National's] successors and assigns, with power of sale, the [Property]." Id. On May 14, 2016, Fidelity National assigned its rights under the Security Deed to ChaseManhattan Mortgage Corporation ("Chase Manhattan"). Comp., Ex. B [1-2] ("Assignment").1
In the Complaint, Plaintiff alleges that there is "no evidence presented by Defendants perfecting JPMorgan Chase Bank as creditor instead of the alleged lender Fidelity National Mortgage Corp or Fidelity National Bank." Comp. at ¶ 4. She states that she "disputes the validity of the 'Assignment and Transfer of Mortgage' because bifurcation of the Note to claim the Note was lost created a nullity and cloud around the titles under contract law; rendering the alleged assignment to JPMorgan Chase Bank an illegal transaction unsupported by any endorsements on the Note." Id. at ¶ 8. Plaintiff claims that the "alleged assignment is defected and fraud." Id. at ¶ 10.
Plaintiff asserts multiple counts in the Complaint. In Count I, she asserts a claim for "common law mortgage fraud." Id. at ¶¶ 1-19. In Count II, she asserts a claim for "Barrett Daffin Frappier Levine & Block, LLP or JPMorgan Chase Bank Lack Standing." Id. at ¶¶ 20-68. In Count III, she asserts a claim for "Violations to Federal and State Laws." Id. at ¶¶ 69-106. In that count, Plaintiff appears to assert claims for violations of the Real Estate Settlement Procedures Act ("RESPA") and the Fair DebtCollection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692, et seq., and she also references the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601 et seq. In Count IV, she asserts a claim for "Fraudulent Practices" and "Violations of Plaintiff's civil rights: Depriving a right of Property Fourteenth Amendments pursuant to 42 U.S.C. § 1983" Id. at ¶¶ 107-119.
Defendants have filed Motions to Dismiss, arguing that all the claims asserted against them in the Complaint must be dismissed because the claims are barred by the doctrine of res judicata. Defendants argue further that, even if the Plaintiff's claims were not barred by res judicata, the claims must be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. The Court agrees with Defendants that the Plaintiff's claims are barred by the principle of res judicata. Further, the Court finds that, even if Plaintiff's claims were not barred by res judicata, her claims are otherwise subject to dismissal for failure to state a claim.
Defendants first argue that the Plaintiff's claims asserted in this action are barred by the doctrine of res judicata, because the Plaintiff previously asserted largely the same claims against JPMorgan Chase in the First Action and those claims were dismissed for failure to state a claim.
Under the principle of res judicata, or claim preclusion, a final judgment on the merits in a civil action operates to preclude a party, or those in privity with that party, from re-litigating in a subsequent proceeding issues that were or could have been raised in the original action. Federated Dep't Stores, Inc., v. Moitie, 452 U.S. 394, 398 (1981); see Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1356 (11th Cir. 1998). The doctrine is "a rule of fundamental and substantial justice, of public policy and of private peace," operating to protect defendants against multiplicious litigation over the same claims, and accordingly, may not be overridden based on equitable considerations. Federated Dep't Stores, 452 U.S. at 401 (internal quotes omitted). Baptiste v. IRS, 29 F.3d 1533, 1539 (11th Cir. 1994).
The doctrine of res judicata applies if the following four elements are present: (1) there is a final judgment on the merits of the first action; (2) the first decision was rendered by a court of competent jurisdiction; (3) the parties to both actions, or those in privity with them, are identical, and (4) the causes of action in both suits areidentical, or the claims asserted in both suits arise out of the same events or the same nucleus of facts. See Manning v. City of Auburn, 953 F.2d 1355, 1358-59 (11th Cir. 1992); Richardson v. Alabama State Bd. of Educ., 935 F.2d 1240, 1244 (11th Cir. 1991); Hart v. Yamaha-Parts Distrib., Inc., 787 F.2d 1468, 1470 (11th Cir. 1986); Ray v. Tennessee Valley Auth., 677 F.2d 818, 821 (11th Cir. 1982). Significantly, res judicata does not bar only those claims actually raised in the first suit; it also bars those claims which the plaintiff could have raised in the prior suit, if those claims arise out of the same transactions or events at issue in the prior suit. S...
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