Vasko v. United States
| Decision Date | 19 August 2013 |
| Parties | CAROL ANN VASKO, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Pro Se Plaintiff; Failure to State a
Claim; Lack of Subject Matter
Jurisdiction; Breach of Contract;
Takings; Torts; Due Process.
Carol Ann Vasko, Austell, GA, pro se.
Loren M. Preheim, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington D.C., for the defendant. With him were Jeanne E. Davidson, Director, Commercial Litigation Branch, and Stuart F. Delery, Assistant Attorney General, Civil Division.
Carol Ann Vasko, a pro se plaintiff, filed a three-page complaint against the United States in the United States Court of Federal Claims, alleging a breach of contract and seeking damages "in excess of Ten Thousand Dollars . . . and costs and such other and further relief as this Court deems just and proper." Plaintiff's complaint was accompanied by an Application to Proceed In Forma Pauperis, which the court previously granted. Defendant filed an original motion to dismiss for failure to state a claim or, in the alternative, for summary judgment. In response, plaintiff filed an amended complaint, rendering defendant's motion moot, in which she added allegations of a taking under the Fifth Amendment of the United States Constitution and deprivation of plaintiff's constitutional rights to her earlier breach of contract claim. Plaintiff subsequently filed a motion to withdraw and strike her amended complaint.1 Defendantthen re-filed its motion to dismiss, or in the alternative, for summary judgment. On the same date plaintiff responded to the re-filed motion, plaintiff also filed a motion for leave to file a supplemental pleading and attached "Plaintiff's First Supplemental Pleading," in which she alleged that subsequent actions by defendant added to plaintiff's injury, and re-alleged and elaborated on the takings claim and due process claim alluded to in plaintiff's stricken amended complaint.
The sequence of filed, and withdrawn, pleadings in this case, as well as the multiple requests for extensions of time, clouded and prolonged the procedural history of the case. Plaintiff's allegations also are at times confused and contradictory, including with regard to the factual history of the property in question. Recognizing, however, Ms. Vasko's pro se status, the court has read her submissions carefully in order to compile the apparent facts and understand the fundamentals of her complaint. Plaintiff's allegations are each addressed for plaintiff's edification as to the reason her claims must fail, in addition to a ruling on defendant's motion.
Plaintiff states her interest in the property located at 1721 Nathan Lane, Austell, Georgia began in "1996 when she thought she purchased said property from a Bill Brown." Plaintiff included as exhibits to several of her pleadings a number of document copies, including an "owner's affidavit" from William A. Brown, Jr., a warranty deed to Ms. Vasko, dated September 27, 1996, which bears the signature of William A. Brown, Jr., but which plaintiff acknowledges was not recorded, a "Truth in Lending Disclosure Statement" from William A. Brown, Jr. regarding the property, and an earlier warranty deed, together with other various documents related to the history of the property.
(citation omitted). A security deed, dated December 14, 1992, recorded on December 22, 1992, and re-recorded on February 10, 1993, details the conveyance of the property to the McKinneys from American National Financial, Inc. and includes a VA Assumption Policy Rider. Defendant asserts that, "[a]fter Mr. McKinney failed to make payments due under the mortgage, the Bank of Oklahoma foreclosed on the home and, in late 2011, transferred ownership to the VA."
Plaintiff claims "that McKinney never lived nor intended to live at the property" and "that the property was purchased for McKinney's daughter, Debra McKinney Carter." Plaintiff alleges that William A. Brown, Jr. purchased the property from the McKinneys on September 26, 1996, one day prior to plaintiff's alleged purchase from Mr. Brown, as indicated by a notarized warranty deed signed by Mr. Brown, and an "unofficial" witness, as well as Debra June McKinney Carter, acting as her parents' "attorney-in-fact." The warranty deed conveying the property from the McKinneys to Mr. Brown, however, was not filed with the appropriate county in Georgia, Cobb County, until October 30, 2009, approximately thirteen years after plaintiff claims to have purchased the property from Mr. Brown.
Plaintiff alleges that when she purchased the property in 1996, "Brown said the property was to stay in McKinney's name . . . until Plaintiff's mortgage was paid off." Plaintiff claims her "only duty in the purchase was to make a monthly payment of Six Hundred Dollars ($600.00)," and that "[p]laintiff was to have no financial cares regarding the Property except for the monthly mortgage payment." Ms. Vasko further claims that "Bill Brown alleged that Plaintiff had an interest in the Property in question," although plaintiff does not specifically identify what type of property interest. Plaintiff has inconsistently identified her alleged interest in the Nathan Lane property, stating in various documents that she was an owner, tenant at will, and tenant at sufferance. In her now withdrawn amended complaint, however, plaintiff asserted,
Plaintiff alleges that, in 2003, she discovered that the property taxes for 1721 Nathan Lane "were very low, about Ninety Dollars ($90.00) a year compared to the neighbors [sic] that were about Nine Hundred Dollars ($900.00), the reason being McKinneys [sic] name was never removed from the tax roll, maintaining their generous exemptions." Plaintiff claims she "notified the tax assessor's office" that she owned the property and "[t]he taxes went up tremendously," leading her to contact Brown to "clarify[] that Plaintiff in no way was going to be responsible for this tax snafu, that her monthly payment was going to stay at Six Hundred Dollars ($600.00) as they agreed." After this exchange, plaintiff claims that "Brown sent Plaintiff a copy of McKinney's Bank of Oklahoma bank statement, the first time Plaintiff received any such information." Plaintiff asserts that, after learning about the McKinneys' loan from the Bank of Oklahoma, she began contacting the bank, as well as the VA, "putting them on notice that she was the owner of the property." She also claims that, sometime after 2003, she learned that her monthly payments of six hundred dollars to Brown were being used to pay "McKinney's monthly loan payment of $400.00," which plaintiff identifies as "the VA loan," while, according to plaintiff, "Brown kept $200.00." Plaintiff claims she "kept on paying for the mortgage, thinking the house was hers, when in reality Plaintiff was just paying off the VA loan, to the benefit of Defendant."
Sometime after the property taxes increased, the payments on the McKinneys' mortgage ceased. The parties disagree as to who was responsible for paying the mortgage. Plaintiff asserts that "Brown's representative stopped paying McKinney's mortgage," while defendant claims "Mr. McKinney failed to make payments due underthe mortgage."2 Both parties agree, however, that the Bank of Oklahoma foreclosed on the home in 2011, despite plaintiff having filed an injunction to stop the foreclosure in the Superior Court of Cobb County, Georgia on November 19, 2010.
On November 8, 2011, the Bank of Oklahoma transferred the property to the Secretary of Veterans Affairs. On January 10, 2012, in the Cobb County Magistrate Court, the Secretary of Veteran Affairs initiated a "Proceeding Against Tenant Holding Over" against "Howard S. McKinney, Helen A. McKinney And All Others," which defendant describes as "an eviction action against anyone living in the home." Plaintiff appears to have been living on the property at the time and received notice of the proceeding. She alleges that she attended a March 2, 2012 hearing, at which the court "entered the writ of possession in favor of the VA." Robert W. Shurtz, an attorney associated with the private law firm McCalla Raymer, represented the Secretary of Veterans Affairs at the dispossessory hearing. Plaintiff claims that she had met Attorney Shurtz at a hearing in February 2012, and that she had "assured Mr. Schurtz [sic] that she would appeal" if the court ruled in favor of the VA. Plaintiff also alleges that at the March 2, 2012 hearing,
Because Georgia law required that a tenant appealing a judgment in a dispossessory case pay both past due rent and "all future rent as it becomes due into the registry of the trial court," see Ga. Code Ann. § 44-7-56 (2012); see also Ga. Code Ann. § 44-7-54 (2012), on March 2, 2012, the Cobb County Magistrate Court issued an "Order on Motion to Compel Payment of Rent into Court," requiring plaintiff to pay rent each month in the amount of $600.00 to the court. The Magistrate Cou...
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