Troyer v. Hershberger
| Decision Date | 14 February 2012 |
| Docket Number | CASE NO. 5:11cv2536 |
| Parties | CLARA TROYER, Plaintiff, v. FRED HERSHBERGER, et at., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
MEMORANDUM OF OPINION AND ORDER
Pro se Plaintiff Clara Troyer filed this action against Fred Hershberger, Dwain Schlabach, Holmes County Sheriff Timothy Zimmerly, Holmes County Deputy Sheriff Gary Chaney, Holmes County Deputy Sheriff Richard Hawkins, Holmes County Deputy Sheriff Roger Sprowl, Locksmith Richard Craft, Attorney Frank J. Rose, Attorney Paul Harvey, Commercial & Savings Bank ("CSB"), Holmes County Prosecutor Steve Knowling, and First Merit Bank Employee Gregory Locke. In the Amended Complaint, Plaintiff alleges the foreclosure proceedings filed against her were unfair. She seeks monetary and injunctive relief.
Plaintiff also filed an Application to Proceed In Forma Pauperis. ECF No. 3. That Application is granted.
CSB filed a foreclosure action in the Holmes County, Ohio Court of Common Pleas against Plaintiff and Andy Troyer on August 31, 2009. See Commercial & Savings Bank v. Trover, No. 11 CA 12, 2011 WL 5022820 at *1 (Ohio App. 5 Dist. Oct. 19, 2011). First Merit Bank held a second mortgage on the property in question. Id. at *1. The court granted summary judgment in favor of CSB on February 11, 2010. Id.
After summary judgment was granted but before the sheriff's sale took place, Andy Troyer and Clara Troyer filed a Chapter 13 Bankruptcy Petition on February 2, 2010. Id. An automatic stay was issued in the foreclosure action. The Bankruptcy Petition was dismissed on May 3, 2010 when the Troyers failed to comply with an order to file documents. Id. The stay was lifted and the sheriff's sale on the foreclosed property was set for May 13, 2010. Id.
On the day of the sheriff's sale, Andy Troyer filed a second Chapter 13 Bankruptcy Petition, and an automatic stay was issued in the foreclosure action. Id. The Petition was dismissed on the Motion of the Trustee on September 21, 2010. Id. The stay was lifted and the sheriff's sale was rescheduled for December 9, 2010. Id.
The day before that scheduled sheriff's sale, Clara Troyer filed a Chapter 13 Bankruptcy Petition. Id. Another automatic stay was issued. Id. The Petition was dismissed on February 23, 2011. The sheriff's sale was rescheduled for April 29, 2011.
Thereafter, Plaintiff filed numerous pro se Motions in the foreclosure action and on April 26, 2011, filed a civil suit against the Defendants named in this case. The pro se Motions were all denied. Plaintiff does not include the resolution, if any, of the civil action.
The sheriff sale was rescheduled for a final time for June 23, 2011 at 10:00 a.m. ECF No. 8-1 at 3. Plaintiff filed an appeal of the foreclosure action on the day of the sale at 8:36 a.m. apparently believing the appeal would stay the sheriff's sale. ECF No. 8-1 at 2. Plaintiff did not request a stay of the underlying action when she filed the appeal and none was granted by the Court of Appeals. ECF No. 8-1 at 2. The property was sold at sheriff's sale that day. ECF No. 8-1 at 3. Plaintiff filed an appeal of the confirmation of the sheriff's sale as well. ECF No. 8-1 at 3.
On October 12, 2011, Plaintiff was evicted from the foreclosed property by three Holmes County Deputy Sheriffs. She contends that she found the property open on December 6, 2011 and moved back into the residence. She was evicted for a second time on December 15, 2011.
Plaintiff now files the within lawsuit. In this action, Plaintiff claims the filing of the Notice of Appeal of the foreclosure action should have stayed further execution of the trial court's judgment. ECF No. 8-1 at 2. The sale was held as scheduled and Plaintiff contends it was conducted without legal authority. ECF No. 8-1 at 3. Therefore, Plaintiff argues that the transfer of the property by means of an illegal sale constitutes securities fraud and wire fraud. ECF No. 8-1 at 3. The sale documents were mailed to the Plaintiff and she claims that Defendants' actions constitute mail fraud as well. ECF No. 8-1 at 3. She asserts that the Prosecutor knew or should have known that the filing of the Notice of Appeal stayed the actionand his failure to cancel the sale denied her due process and equal protection. ECF No. 8-1 at 2. She claims her subsequent eviction violated the Fourth Amendment. ECF No. 8-1 at 12. She asserts claims under 42 U.S.C. §§ 1983, 1985, and 1986, 18 U.S.C. §§1341, 1343, and 1348, the Racketeer Influenced and Corrupt Organizations Act ("RICO") 18 U.S.C. § 1964(c), and 18 U.S.C. §§ 241 and 242. ECF No. 8-1 at 1. Plaintiff asks for an apology from the Defendants, reversal of the foreclosure judgment, return of the foreclosed property, and monetary damages. ECF No. 8-1 at 14-15.
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is required to dismiss an in forma pauperis action under 28 U.S.C. §1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an arguable basis in law or fact.1 Neitzke v. Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). A claim lacks an arguable basis in law or fact when it is premised on an indisputably meritless legal theory or when the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. A cause of action fails to state a claim upon whichrelief may be granted when it lacks "plausibility in the complaint." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949 (2009). The factual allegations in the pleading must be sufficient to raise the right to relief above the speculative level on the assumption that all the allegations in the complaint are true. Bell Atl. Corp., 550 U.S. at 555. The Plaintiff is not required to include detailed factual allegations, but must provide more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949. A pleading that offers legal conclusions or a simple recitation of the elements of a cause of action will not meet this pleading standard. Id. In reviewing a complaint, the Court must construe the pleading in the light most favorable to the Plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir.1998).
Although Plaintiff asserts claims under various civil rights and criminal statutes, this action is merely an attack on the State court's judgment of foreclosure and the validity of the court-ordered sheriff's sale in that action. All of the claims are based on Plaintiff's assumption that the filing of her Notice of Appeal one hour and thirty minutes before the scheduled sheriff's sale automatically stayed the proceedings and all other transactions in that case which occurred after this filing, including the sale, are void. This Court cannot entertain challenges to the State court's judgments or hear claims previously decided by the State court.
As an initial matter, Plaintiff misinterprets Ohio law on appellate procedure. The filing of the Notice of Appeal does not automatically stay the execution of the underlying judgment. Ohio Revised Code § 2505.09 sets forth the requirements for a stay of execution of a judgment. It provides in pertinent part:
[A]n appeal does not operate as a stay of execution until a stay of execution has been obtained pursuant to the Rules of Appellate Procedure or in another applicable manner, and a supersedeas bond is executed by the appellant to the appellee.
OHIO REV. CODE § 2505.09. Ohio Appellate Rule 7(a) requires that a litigant who wishes to obtain a stay of the judgment pending appeal request the stay from the trial court. The determination of whether to issue a stay rests within the trial court's sound discretion. See State ex rel. Verhovec v. Mascio, 81 Ohio St.3d 334, 336 (1998). In addition, Ohio Revised Code § 2505.09 also requires the Plaintiff to execute a supersedeas bond if the stay is issued. Obtaining a supersedeas bond is also a prerequisite to obtaining a stay of execution of a judgment pending appeal. See OHIO R. CIV. P. 62(B). There is no indication that Plaintiff followed either of these procedures or that the judgment was, in fact, stayed.
Furthermore, even if Plaintiff were improperly denied a stay of execution pending appeal, this Court cannot entertain challenges to the Sheriff's sale or the trial court's order affirming the sale. United States District Courts do not have jurisdiction over challenges to State court decisions even if those challenges allege that the State court's action was unconstitutional. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483 n. 16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923). Federal appellate review of State courtjudgments can only occur in the United States Supreme Court, by appeal or by writ of certiorari. Id. Under this principle, generally referred to as the Rooker-Feldman Doctrine, a party losing his case in State court is barred from seeking what in substance would be appellate review of the State court judgment in a United States District Court based on the party's claim that the State judgment itself violates his or her federal rights. Johnson v. DeGrandy, 512 U.S. 997, 1005-06 (1994). Federal jurisdiction cannot be invoked merely by couching the claims in terms of a civil rights action. Lavrack v. City of Oak Park, No. 98-1142, 1999 WL 801562, at *2 (6th Cir. Sept. 28, 1999); see Valenti v. Mitchell, 962 F.2d 288, 296 (3d Cir.1992).
The United States Sixth Circuit Court of Appeals has applied two elements to a...
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