Ogle v. BAC Home Loans Servicing LP

• Decision Date: 14 February 2013
• Docket Number: 2:11–cv–745.,Case Nos. 2:11–cv–540
• Citation: 924 F.Supp.2d 902
• Parties: Charles R. OGLE, et al., Plaintiffs, v. BAC HOME LOANS SERVICING LP, et al., Defendants. Bank of America, N.A., Plaintiff, v. Ogleshill Farm, LLC, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

924 F.Supp.2d 902

Charles R. OGLE, et al., Plaintiffs,

v.BAC HOME LOANS SERVICING LP, et al., Defendants.

Bank of America, N.A., Plaintiff,

v.Ogleshill Farm, LLC, et al., Defendants.

Case Nos. 2:11–cv–540, 2:11–cv–745.

United States District Court,

S.D. Ohio,

Eastern Division.

Feb. 14, 2013.

Charles R. Ogle, Rockbridge, OH, pro se.

Melanie A. Ogle, Rockbridge, OH, pro se.

Eric T. Deighton, Carlisle, Mcnellie, Rini, Kramer & Ulrich, Co, LPA, Beachwood, OH, Phyllis A. Ulrich, Brian R Gutkoski, Richard L. McNellie, Carlisle, Mcnellie, Rini, Kramer & Ulrich Co., LPA, Cleveland, OH, James W. Sandy, McGlinchey Stafford PLLC, Beachwood, OH, James Scott Wertheim, McGlinchey Stafford PLC, Cleveland, OH, for Defendants.

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

This matter is before the Court on Defendants Bank of America and Carlisle, McNellie, Rini, Kramer, & Ulrich, Co, LPA's Motions for Judgment on the Pleadings (Docs. 59 and 65 in Case No. 2:11–cv–540; and Docs. 44 and 53 in Case No. 2:11–cv–745). Plaintiffs Charles and Melanie Ogle have responded and have also filed a Motion for Default Judgment and Motion for Judgment on the Pleadings (Docs. 54 and 55 in Case No. 2:11–cv–745). These motions are briefed and ripe for disposition. For the reasons that follow, the Court GRANTS Bank of America's Motion for Judgment on the Pleadings; GRANTS Carlisle, McNellie, Rini, Kramer, & Ulrich, Co, LPA's Motion for Judgment on the Pleadings; DENIES Charles and Melanie Ogle's Motion for Default Judgment; and DENIES the Ogles' Motion for Judgment on the Pleadings.

I. BACKGROUND

On May 17, 2005, Plaintiff Charles Ogle executed a promissory note (the “note”), whereby he agreed to repay $98,000 (plus interest) loaned to him by America's Wholesale Lender (“AWL”), which was doing business as Countrywide Home Loans, Inc. (“CHL”). On the same day, Plaintiff Charles Ogle, and his wife, Plaintiff Melanie Ogle, granted a mortgage to CHL, thereby granting CHL a security interest in Plaintiffs' property.¹ In an effort to meet the monthly obligation under the terms of the note, Plaintiffs established an automatic monthly mortgage loan payment from their personal checking account. In the fall of 2009, however, Plaintiffs determined that their loan payment was going to BAC Home Loans Servicing L.P. (“BAC”) (now Bank of America N.A. successor by merger), and not CHL, and they thereafter ceased making payments. In March 2010, BAC initiated an action in the Hocking County Ohio Court of Common Pleas, asserting its right to foreclose as holder of the note executed by Plaintiff Charles Ogle. Plaintiffs challenged the foreclosure, and in February 2011, BAC voluntarily dismissed the action, presumably without prejudice.

In June 2011, pro se Plaintiffs Charles and Melanie Ogle initiated Case No. 2:11–cv–540 in this Court (the “federal action”) against fourteen parties alleging that these defendants are unlawfully attempting to displace them from their home. The defendants in the federal action include BAC, AWL, CHL, Sandra Williams, Mortgage Electronic Registration Systems, Inc. (“MERS”), Carlisle McNellie Rini Kramer & Ulrich Co., LPA (“Carlisle”), and CoreLogic Document Solutions (“Corelogic”) ² (these parties collectively will be referred to as the “Defendants”). Plaintiffs, the Ogles, assert a number of federal and state claims, including a claim under the Racketeer Influenced and Corrupt Organizations Act, a claim under the Ohio Corrupt Practices Act, and a claim under the Fair Debt Collection Practices Act.

In July 2011, Bank of America, N.A., refiled the foreclosure action in the Hocking County Ohio Court of Common Pleas. In the state foreclosure action, Plaintiffs filed a Third Party Complaint, which essentially presents the same claims against the same parties as presented in this Court in Case No. 2:11–cv–540.

In August 2011, the Court denied Plaintiffs' Renewed Motion for Preliminary Injunction (Doc. 34). Also in August 2011, Plaintiffs removed the foreclosure action to this Court, which is assigned Case No. 2:11–cv–745. On January 12, 2012, the Court issued an Opinion and Order denying Defendants' Motion to Strike, granting Defendants' Motion to Dismiss, denying Plaintiffs' Motion for Sanction, and granting Third Party Defendants' Motion to Dismiss Third Party Complaint (Doc. 48). All of Plaintiffs claims in Case No. 2:11–cv–540 were dismissed against all Defendants except for Carlisle as they had not moved to dismiss. Additionally, the foreclosure action remains pending.

II. STANDARD OF REVIEW

The standard for reviewing a motion for judgment on the pleadings under Federal Rules of Civil Procedure 12(c) is identical to the standard applied to a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Mixon v. Ohio, 193 F.3d 389, 399–400 (6th Cir.1999).

Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a lawsuit for “failure to state a claim upon which relief can be granted.” A Rule 12(b)(6) motion to dismiss is directed solely to the complaint and any exhibits attached to it. Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir.1983). The merits of the claims set forth in the complaint are not at issue on a motion to dismiss for failure to state a claim. Consequently, a complaint will be dismissed pursuant to Rule 12(b)(6) only if there is no law to support the claims made, or if the facts alleged are insufficient to state a claim, or if on the face of the complaint there is an insurmountable bar to relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir.1978). Rule 12(b)(6) must be read in conjunction with Rule 8(a) of the Federal Rules of Civil Procedure, which requires the complaint to contain a “short and plain statement of the claim showing that the pleader is entitled to relief[.]”

A court, in considering a 12(b)(6) motion to dismiss, must “construe the complaint in the light most favorable to the plaintiff,” accepting as true all the plaintiff's factual allegations. Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.2009). Although in this context all of the factual allegations in the complaint are taken as true, a court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Consequently, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).

Furthermore, to survive dismissal pursuant to Rule 12(b)(6), a claim must containsufficient factual matter to “state a claim to relief that is plausible on its face.” Twombly, at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, at 1950. While a complaint need not contain “detailed factual allegations,” its “factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true.” Twombly, at 555, 127 S.Ct. 1955. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” Iqbal, at 1950 (quoting Fed.R.Civ.P. 8(a)(2)). In the final analysis, the task of determining plausibility is “context-specific [and] requires the reviewing court to draw on its judicial experience and common sense.” Id.

III. DISCUSSION

Defendant Carlisle moves for judgment on the pleadings on all of Plaintiffs' claims against them in Case No. 2:11–cv–540, as well as judgment on the pleadings on the Ogle's Third Party claims in Case No. 2:11–cv–745. Plaintiff BAC also moves for judgment on the pleadings on the Ogle's counterclaims in Case No. 2:11–cv–745. The Ogles have moved for default judgment against BAC and also seek judgment on the pleadings on their counterclaims. The Court will address the motions in turn.

A. Carlisle's Motion for Judgment on the Pleadings

Plaintiffs, the Ogles, brought fifteen claims against Defendants in their Amended Complaint and Third Party Complaint in Case No. 2:11–cv–540, which include: violation of the Racketeer Influenced and Corrupt Organizations Act, violation of the Fair Debt Collection Practices Act, violation of the Real Estate Settlement Procedures Act, violation of the Truth in Lending Act, violation of the Fair Credit Reporting Act, violation of the Ohio Consumer Sales Practices Act, violation of the Ohio “Baby RICO” statute, unfair or deceptive acts or practices, wrongful foreclosure, civil conspiracy, negligent servicing, breach of contract and the covenant of good faith and fair dealing, slander of title, declaratory relief, and injunctive relief. All of these claims were dismissed against all the Defendants with the exception of Defendant Carlisle who did not move. Now, Defendant Carlisle moves for judgment on the pleadings for the same reasons the Court found all the claims should be dismissed against the other Defendants in its January 12, 2012 Opinion and Order.

The Court has carefully reviewed its analysis in the January 12th Opinion and Order and finds that for the same reasons the Court granted the other Defendants' Motion to Dismiss, those claims should also be dismissed against Defendant Carlisle. Plaintiffs have failed to allege any additional facts against Defendant Carlisle to sufficiently plead the aforementioned claims. Accordingly, Defendant Carlisle is entitled to judgment on the pleadings on all of Plaintiffs' claims brought in Case No. 2:11–cv–540. Additionally, this case is hereby dismissed.

B. Ogle's Third–Party Complaint and Counterclaims in Case No. 2:11–cv–745

Carlisle moves for judgment on the pleadings on the Ogle's Third–Party...