Sessley v. Wells Fargo Bank, N.A.
| Decision Date | 06 March 2012 |
| Docket Number | Case No.2:11-cv-348 |
| Parties | PHILLIP SESSLEY, et al., Plaintiffs, v. WELLS FARGO BANK, N.A., et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION AND ORDER
This matter is presently before the Court on the Motion to Dismiss of Defendants Wells Fargo Bank, N.A., Sand Canyon Corporation, and Option One Mortgage Corporation (Doc. 12), which is hereby GRANTED, Defendants Dennis Reimer, Peter Mehler, and Reimer & Lorber Co., L.P.A.'s Motion to Dismiss Complaint (Doc. 15), which is hereby GRANTED, and Plaintiffs Phillip Sessley and Leonadra Hutchins Sessley Request for Leave to File First Amended Verified Complaint & Declaratory Judgment (Doc. 29), which is hereby DENIED.
On April 24, 2011, Phillip Sessley and Leonadra R. Huchins Sessley, who are proceeding without the assistance of counsel, filed the complaint in this action.1 In the complaint, the plaintiffs contend that the Franklin County, Ohio Court of Common Pleas' ruling in Case No. 07CVE-02-1896, affirmed on appeal in Wells Fargo Bank, N.A. v. Sessley, et al., 188 Ohio App. 3d 213, 935 N.E.2d 70 (Ohio Ct. App. 2010) ("Foreclosure Action"), was "predicated on fraud, mistake, and surprise," is "void ab initio" and constitutes an "illegal foreclosure." (Doc. 6 at 2.)The plaintiffs allege that the defendants made intentional misrepresentations, engaged in bad faith, unfair business practices, and malicious and unconscionable conduct during the Foreclosure Action. The plaintiffs request monetary damages, attorney fees and costs, restitution, divestment of the property at issue, declaratory relief determining "the validity of the foreclosure proceedings and sheriff sale proceedings," a "determination that the plaintiffs are the legal and equitable titled owners of the subject property," and an "injunction and restraining order against the defendants, their legal counsels, employees and representatives from any further attempts to sell, assign or transfer the defendants' ownership title or interest" in the subject property." Id at 3.
On September 27, 2011, the plaintiffs filed a request for leave to file an amended complaint. The proposed amended complaint also submits that the Foreclosure Action should be vacated because of the defendants' alleged misrepresentations and fraud, which allegedly constitute unclean hands, bad faith and fraudulent conduct, unfair business practices, and discrimination in the mortgage loan made to the plaintiffs and the "baseless foreclosure complaint against the plaintiffs[.]" (Doc. 29 at 9.) The plaintiffs request relief in the form of money damages, and "an order voiding the foreclosure action," "recision of the trustee's deed upon sale," restitution, declaratory relief, permanent injunctive relief "enjoining defendants from their unlawful activity, and attorneys fees and costs." Id. at 42-43, ¶¶ 196-197, 110-115.2
The facts relied upon in this Opinion and Order were taken from the pleadings or documents that are properly considered part of the pleadings and from the filings in the Foreclosure Action of which this Court takes judicial notice. See Weiner v. Klais and Co., Inc.,108 F.3d 86, 89 (6th Cir. 1997) (); see also Walburn v. Lockheed Martin Corp., 431 F.3d 966, 972 n.5 (6th Cir. 2005) ().
On May 15, 2001, Mr. Sessley signed an adjustable rate note in favor of Option One Mortgage Corporation ("Option One") in the amount of $85,500.00 ("Note"). That same day, as security for the Note, both Mr. and Mrs. Sessley signed an open-end mortgage ("Mortgage") naming Option One as mortgagee, for property located at 963 N. Nelson Road, Columbus, Ohio 43219. The Mortgage was recorded on May 18, 2001 as Instrument 200105180109654 in the Franklin County, Ohio Recorder's Office. On February 8, 2007, Option One executed a corporation assignment of an open-end mortgage transferring its interest in the Note and Mortgage to Wells Fargo Bank, N.A., as Trustee for Option One Mortgage Loan Trust 2001-C, Asset-Backed Certificates, Series 2001-C ("Trustee Wells Fargo"), which was recorded on March 9, 2007 as Instrument No. 200703090042324 in the Franklin County, Ohio Recorder's Office. On approximately November 1, 2005, the Sessleys defaulted under the terms of the Note and Mortgage by reason of nonpayment. Subsequently, Trustee Wells Fargo retained Reimer & Lorber Co., LP A, and attorneys Peter Mehler and Dennis Reimer ("Foreclosure Counsel") to initiate the Foreclosure Action against the plaintiffs.
In the Foreclosure Action, the plaintiffs filed counterclaims and crossclaims against the Trustee Wells Fargo and Option One n/k/a Sand Canyon Corporation ("Sand Canyon"). Those claims were for (1) violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq.; (2)violations of the Home Ownership Equity Protection Act, 15 U.S.C. § 1639; (3) violations of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq.; (4) violations of the Federal Trade Commission Act, 15 U.S.C. 45(a); (5) violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. 1692 etseq.; (6) violations of the Ohio Consumer Sales Practices Act ("CSPA"), Ohio Revised Code Chapter 1345; (7) conversion; (8) breach of contract; (9) breach of fiduciary duty; (10) fraud; and (11) conspiracy. The trial court entered summary judgment in favor of the Trustee Wells Fargo on its foreclosure complaint and in favor of the defendants on each of the Sessleys' counterclaims and crossclaims. The trial court's judgment was affirmed by the Court of Appeals of Ohio, Tenth Appellate District, Appeal No. 09AP-178, on June 24, 2010. The Sessley's then sought discretionary review from the Supreme Court of Ohio, which denied their request. Wells Fargo Bank, N.A. v. Sessley, 126 Ohio St. 3d 1618 (Oct. 27, 2010).
As a result of the Foreclosure Action, a decree of foreclosure was issued in favor of the Trustee Wells Fargo on October 28, 2008. The notice of Sheriff's sale was filed on January 30, 2009, and the Trustee Wells Fargo purchased the property at issue at the February 27, 2009 Sheriff's sale. The Sheriff's sale was confirmed on April 14, 2009 and a motion to amend the order confirming the Sheriff's sale and ordering a distribution was granted on May 26, 2009. The praecipe for writ of possession was filed on February 2, 2011, and the eviction was completed on March 24, 2011 by the Sheriff's department.
On April 25, 2011, the Sessleys filed the complaint in the instant action. They named as defendants the same defendants as those named in the counterclaims and crossclaims in the Foreclosure Action, i.e., Trustee Wells Fargo, Option One, and Sand Canyon, and also named Foreclosure Counsel as defendants. In the complaint, the plaintiffs allege the following claimsfor relief: (1) violations of the FDCPA; (2) fraud and deceit; (3) unjust enrichment; (4) negligent infliction of emotional distress; (5) unfair business practices; (6) violations of the Ohio CSPA; (7) the Ohio Racketeer Influenced and Corrupt Organizations Act ("RICO"), Ohio Rev. Code § 2923.31 et seq.; (8) wrongful foreclosure; (9) quiet title and other relief; (10) violation of the Equal Employment Opportunity Commission ("EEOC") and discrimination; (11) injunctive relief; and (12) damages in excess of $25,000. (Doc. 6 at 1.)
In the proposed amended complaint, the plaintiffs named as defendants the same entities and individuals named in the complaint. The proposed amended complaint alleges the following claims for relief: (1) declaratory judgment; (2) negligence; (3) breach of contract; (4) unjust enrichment; (5) violation of the FDCPA; (6) Ohio RICO violations; (7) EEOC and discrimination; (8) quiet title; (9) violation of the Ohio CSPA. (Doc. 29 at 1.)
A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than are formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 30 L. Ed. 2d 652(1972); see also Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). A court should make a reasonable attempt to read the pleadings of a pro se litigant to state a valid claim on which the plaintiff could prevail, despite any failure to cite proper legal authority, confusion of various legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. Ashiegbu v. Purviance, 74 F. Supp.2d 740, 749 (S.D. Ohio 1998) (Kinneary, J.) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). "This standard does not mean, however, that pro se plaintiffs are entitled to take every case to trial." Id. (citing Pilgrim v. Littlefield, 92 F.3d 413,416 (6th Cir. 1996)). "Indeed, courtsshould not assume the role of advocate for the pro se litigant." Id. (citing Hall, 935 F.2d at 1110). See also Derrick v. Dana Driveshaft Mfg., LLC, No. 3:09CV793, 2010 U.S. Dist. LEXIS 91243, at *8 (N.D. Ohio Sept. 2, 2010) ().
The plaintiffs filed their motion to amend the complaint on September 27, 2011. (Doc. 29.) The defendants filed memoranda in opposition to the plaintiffs' request to amend the complaint (Docs. 33, 35), and the plaintiffs filed a reply brief in support of their motion to amend (Doc. 36).
A. Rule 15 of the Federal Rules of Civil Procedure
Generally, leave to amend a complaint shall be freely granted "when justice so requires." Fed. R. Civ. P. 15(a). The grant or denial of the request to amend a complaint is left to the broad discretion of the district court. Gen'l Electric Co. v, ...
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