Perez v. Law Offices of John D. Clunk, Co.

Decision Date20 July 2015
Docket NumberCASE NO. 1:15 CV 701
PartiesWILLIAM PEREZ, et al., Plaintiffs, v. LAW OFFICES OF JOHN D. CLUNK, CO. L.P.A., et al., Defendants.
CourtU.S. District Court — Northern District of Ohio

Judge Dan Aaron Polster


Pro se Plaintiffs William Perez and Alicia Ruitto filed this action under 42 U.S.C. §§ 1983, 1985, 1986, 1988, and 18 U.S.C. §§ 24, 242, 641, 1341, 1342, and 2315 against the Law Offices of John D. Clunk, Co., LP.A. ("Law Firm"), Bayview Loan Servicing, LLC. ("Bayview"), and the Cuyahoga County Sheriff's Office ("Sheriff's Office"). In the Complaint (Doc. # 1), Plaintiffs challenge the validity of a commercial mortgage loan, which was the subject of a foreclosure action in the Cuyahoga County Court of Common Pleas. See Bayview Loan Servicing, LLC v. Perez, No. 787650 (Cuyahoga Cty Ct. Comm. Pl. Mar. 25, 2015). They seek monetary damages and legal title to the commercial property.


Plaintiff Alicia Ruitto purchased a commercial property on 9613 Madison Avenue, Cleveland, Ohio. She was the record title holder of the property. In 2004, Ruitto executed a mortgage on the property in the sum of $ 116,350.00 in favor of Interbay Funding, LLC. Perezdid not sign the mortgage. That mortgage was assigned to Bayview.

In 2012, Bayview filed a foreclosure action in the Cuyahoga County Court of Common Pleas. See Bayview Loan Servicing, LLC v. Perez, No. 787650 (Cuyahoga Cty Ct. Comm. Pl. Mar. 25, 2015). Perez filed an answer and numerous other pro se documents claiming to be Ruitto's common law husband, and indicating he had dower interests in the property superior to Bayview's mortgage. Bayview filed a Motion for Summary Judgment. They supplemented the Motion on August 8, 2014 to address Perez's purported dower interest. On January 23, 2014, the Magistrate Judge determined there was no credible evidence that Perez was Ruitto's common law husband, and Perez had no interest in the property or the foreclosure action. The court adopted the Magistrate's decision on February 18, 2015.

The Magistrate granted summary judgement to Bayview on March 6, 2015. In that decision, he reiterated that Perez had no interest in the subject property and the claims against him were previously dismissed. Judgment was granted to Bayview in the amount of $103,193.25 plus interest from April 1, 2011. The property was ordered to be sold a sheriff's sale. That order was adopted by the court on March 31, 2015.

The Cuyahoga County Court of Common Pleas docket indicates Plaintiffs filed a Notice of Removal of the foreclosure action to this federal court on April 9, 2015. No such Notice of Removal was filed in this Court. Instead, Plaintiffs filed a new civil action on April 9, 2015, listing Bayview, the Law Firm, and the Sheriff's Office as Defendants.

In this Complaint, Plaintiffs contend they signed an unconscionable contract to purchase property located at 3952 Circlewood Dr., Cleveland, Ohio. The Circlewood Drive property appears to a residential property and was not the subject of the foreclosure action. They contendthe purchase of this property constituted "fraud in the factum" because they were not aware they were signing a promissory note or that the lender was obtaining a promissory note. (Doc. # 1 at 2). They allege they believed they were obtaining a loan for the property. They assert the lender "created funds obtained by Petitioner's signature on the promissory note." They indicate the property was in their name first before a lien was put on the title. Plaintiffs allege there was never a physical exchange of money at the closing of the purchase.

Plaintiffs then indicate the Defendants filed a foreclosure action against them in 2012, referring to the foreclosure action on Ruitto's Madison Avenue commercial property. They assert that pursuant to the National Housing Act, in order for a mortgagee to initiate a foreclosure action, certain requirements must be met. They indicate an "organizational certificate [must] be acknowledged before a judge of some court of records and [must], with the acknowledgment, [be] authenticated by the court and transmitted to the Comptroller of Currency, who shall record and preserve the same in his office." (Doc. #1 at 5). They claim Bayview had no right to accept the assignment of the mortgage. They also contend they have a common law marriage and the durable power of attorney purportedly executed by Alicia Ruitto, provides Perez with an interest in the Madison Avenue property.

Plaintiffs assert eight claims for relief. First they indicate the Defendants denied them "due course justice" and equal protection under color of state law. (Doc. #1 at 6). They seek relief under 42 U.S.C. § 1983. Second, they allege the Defendants conspired to violate their constitutional rights by going "in disguise to hold a sheriff's sale." (Doc. # 1 at 6). They contend this is a violation of 42 U.S.C. § 1985, entitling them to damages under 42 U.S.C. § 1986. Third, Plaintiffs assert the court neglected to prevent a sale of the property. Fourth, theyassert the Defendants are liable for malicious abuse of process. Fifth, they assert the Defendants are criminally liable to them under 18 U.S.C. §§ 241 and 242. Sixth, they assert claims of intentional infliction of emotional distress. Seventh, they assert the Defendants are criminally liable for mail fraud in violation of 18 U.S.C. §§ 1341 and 1342. Finally, Plaintiffs asserts they were induced into signing a fraudulent promissory note in violation of 18 U.S.C. § 2315. Although not formally stated as a cause of action, Plaintiffs also assert the Defendants aided and abetted in a conspiracy to commit larceny in violation of 18 U.S.C. § 641. They seek monetary damages in the amount of $ 2,400,000.00 and free and clear title to the "subject property." (Doc. #1 at 15).

The Law Firm filed a Motion for Judgment on the Pleadings pursuant to Federal Civil Procedure Rule 4, and Rule 12(f). (Doc. #6). They first indicate they have not been properly served with the complaint in this matter. In addition they contend: (1) Plaintiffs cannot assert constitutional claims against private parties under 42 U.S.C. § 1983; (2) Plaintiffs are not members of a protected class to assert a conspiracy claim under 42 U.S.C. § 1985; (3) Plaintiffs cannot maintain a private criminal action; (4) Plaintiffs cannot assert abuse of process claims for instituting a proper legal action and litigating through to judgment; (5) Plaintiffs failed to allege any outrageous conduct for an intentional infliction of emotional distress claim; and (6) statements made during court proceedings cannot be used as the basis for a common law fraud claim. They state this Court lacks subject matter jurisdiction to entertain this action.

Bayview filed a Motion to Dismiss the Complaint under Federal Civil Procedure Rule 12(b)(6). (Doc. #8). Bayview claims that as private parties, they cannot be held liable under 42 U.S.C. § 1983. They assert Plaintiffs did not allege class-based discrimination as required tostate a claim under 42 U.S.C. § 1985. They contend they did not owe a duty to Plaintiffs and therefore did not neglect to prevent injury to them. They also assert that this claim is unintelligible. They indicate Plaintiffs have not alleged sufficient facts to suggest the foreclosure process was perverted or brought for an improper purpose. They assert Plaintiffs cannot bring criminal charges against them in a civil action. They claim Plaintiffs did not allege they engaged in outrageous actions to state a claim for intentional infliction of emotional distress.

Finally, the Sheriff's Office filed a Motion to Dismiss pursuant to Federal Civil Procedure Rule 12(b)(1) and (12)(b)(6). (Doc. #16). They assert the Plaintiffs are barred from litigating this case under the Rooker-Feldman Doctrine and the Younger Doctrine. They claim the Plaintiffs are attempting to collaterally attack the state court judgment in the foreclosure case, the injury was caused by the state court judgment, and this Court lacks subject matter jurisdiction to consider Plaintiffs' claims. Alternatively, they assert the Plaintiffs' Complaint is so vague and stated only through "buzz words" that it fails to state a viable claim for relief. They indicate it lacks a coherent legal theory and should be dismissed on that basis.


Federal Rule of Civil Procedure 12(b)(1) allows dismissal for "lack of jurisdiction over the subject matter" of claims asserted in the Complaint. Fed.R.Civ.P. 12(b)(1). Generally, Fed.R.Civ.P. 12(b)(1) motions fall into two categories: facial attacks and factual attacks. Fed.R.Civ.P. 12(b)(1); United States v. Richie, 15 F.3d 592, 598 (6th Cir. 1994). A facial attack tests the adequacy of the complaint, Scheuer v. Rhodes, 416 U.S. 232, 235-37 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984), while a factual attack evaluates theactual existence of subject matter jurisdiction, Ohio Hosp. Ass'n v. Shalala, 978 F.Supp. 735, 739 (N.D. Ohio 1997). The importance of this distinction has to do with the nature of the Court's consideration of the facts and allegations presented in connection with the Rule 12(b)(1) motion. If the motion presents a facial attack, the Court must take all of the material allegations in the Complaint as true and construe them in the light most favorable to the non-moving party. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994)(citing Scheuer, 416 U.S. at 235-37). In contrast, if the motion presents a factual attack, then the Court is free to consider extrinsic evidence and may weigh the evidence of its own jurisdiction without affording the Plaintiff the presumption of truthfulness. Ritchie, 15 F.3d at 598; Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986); see also Ernst v. Rising, 427 F.3d 351, 372 (6th Cir. 2005). The Plaintiff has the burden of proving subject matter jurisdiction in order...

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