West v. Wells Fargo Bank, N.A., CIVIL ACTION FILE NO. 1:16-cv-00393-WSD-AJB

• Decision Date: 03 January 2017
• Docket Number: CIVIL ACTION FILE NO. 1:16-cv-00393-WSD-AJB
• Parties: HERETTA L. WEST, Plaintiff, v. WELLS FARGO BANK, N.A., Defendant.
• Court: U.S. District Court — Northern District of Georgia

HERETTA L. WEST, Plaintiff, v. WELLS FARGO BANK, N.A., Defendant.

CIVIL ACTION FILE NO. 1:16-cv-00393-WSD-AJB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

January 3, 2017

UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

This matter is before the Court on Defendant Wells Fargo Bank, N.A.'s ("Defendant") motion to dismiss Plaintiff's complaint. [Doc. 3]. For the reasons set forth below, the undersigned RECOMMENDS that the motion be GRANTED and that the action be DISMISSED WITH PREJUDICE.

I. BACKGROUND

On April 20, 2007, Plaintiff Heretta West ("Plaintiff") obtained a loan from MortgageIT, Inc. ("MortgageIT") in the amount of $743,200.00. [Doc. 3-2].¹To secure repayment of the promissory note, Plaintiff executed a security deed which conveyed legal title and power of sale of the real property located at 2398 Monte Villa Court, Marietta, Georgia 30062 (the "Property") to MortgageElectronic Registration Systems, Inc. ("MERS") as nominee for MortgageIT. [Id.].² On January 20, 2012, MERS transferred and assigned its rights, title, and interest in the security deed to HSBC Bank USA, National Association as Trustee For MortgageIT Securities Corp. Mortgage Loan Trust Series 2007-1, Mortgage Pass-Through Certificates ("HSBC").³ Wells Fargo is the servicer of the loan on behalf of HSBC. [Doc. 1 at 9, ¶ 31 & Doc. 3-1 at 2].

On November 27, 2013, Plaintiff, proceeding pro se, filed a complaint in the Superior Court of Cobb County. See West v. Wells Fargo Bank, N.A., Case No. 13-1-10266-34.3 (hereinafter "West I"). [Doc. 3-4]. On April 9, 2014, Plaintiff voluntarily dismissed that complaint. [Doc. 3-5]. On October 1, 2014, again proceeding pro se, Plaintiff filed a another complaint in the Superior Court of Cobb County that was nearly identical to the complaint filed in West I. See West v. Wells Fargo Bank, N.A., Case No. 14-1-7667-53 (hereinafter ("West II"). [Doc 3-6]. Plaintiff voluntarily dismissed West II on December 2, 2014. [Doc. 3-7].

On January 9, 2015, Plaintiff, proceeding pro se, filed a third complaint in the Superior Court of Cobb County. See West v. Wells Fargo Bank, N.A., Case No. 15-1-175-52 ("West III"). [Doc. 3-8]. In West III, Plaintiff asserted claims against Defendant for conversion, attempted wrongful foreclosure, breach of good faith and fair dealing, unfair and deceptive business practices, fraud, violations under the Real Estate Settlement Procedures Act ("RESPA"), unjust enrichment, "adequate assurances of performance," unconscionability, and sought a declaratory judgment and reasonable attorney's fees. [Doc. 3-8]. On December 21, 2015, the Cobb County Superior Court dismissed Plaintiff's claims with prejudice. [Doc. 3-9].

Plaintiff, proceeding pro se, filed a complaint in this Court on February 9, 2016. [Doc. 1]. Plaintiff's complaint asserts claims against Defendant for violation of the Fair Debt Collections Practices Act ("FDCPA") (Count I), violation of the Fair Credit Reporting Act ("FCRA") (Count II), negligence (Count III) , intentional infliction of emotion distress ("IIED") (Count IV), declaratory judgment/quiet title (Count V), injunctive relief, (Count VI), wrongful foreclosure (Count VII), and violation of the Georgia Fair Business Practices Act ("GFBPA") (Count VIII). [Doc. 1]. She seeks equitable and injunctive relief, compensatory and punitive damages, and attorney's fees. [Doc. 1 at 36-37].

Defendant moved to dismiss Plaintiff's complaint on two primary grounds: (1) Plaintiff's claims are barred by the doctrines of res judicata, collateral estoppel, and the "two dismissal" rule; and (2) Plaintiff's complaint fails to state a claim upon which relief can be granted. [Doc. 3-1]. Plaintiff responded. [Doc. 4]. Defendant did not file a reply. (See Dkt.). With briefing concluded, the motion to dismiss is ripe for recommended resolution.

II. LEGAL STANDARDS

"At the motion to dismiss stage, all well-pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff." Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11^th Cir. 1999); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (noting that all allegations in the complaint are to be taken to be true even if doubtful in fact). However, "courts may infer from the factual allegations in the complaint 'obvious alternative explanation[s],' which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer." Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11^th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 682 (2009)). Additionally, the Court is not required to accept Plaintiff's legal conclusions. See Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11^th Cir. 2009), abrogated onother grounds by Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012) (citing Iqbal, 556 U.S. at 678). Nor will the Court "accept as true a legal conclusion couched as a factual allegation." See Twombly, 550 U.S. at 555.

To avoid dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Under Rule 8 of the Federal Rules of Civil Procedure, a pleading states a claim when it contains, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed R. Civ. P. 8(a)(2). Although the factual allegations of a complaint must generally be taken as true when ruling on a motion to dismiss, a court should not accept "conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts." Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11^th Cir. 2002). While a complaint need not contain detailed factual allegations, mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555; accord Iqbal, 556 U.S. at 678-79 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" and are "not entitled to the assumption of truth."). Rather, plaintiffs are required to make factual allegationsthat are "enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Complaints must "contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282-83 (11^th Cir. 2007) (per curiam) (internal quotation marks omitted). The Court also may dismiss a claim pursuant to Rule 12(b)(6) when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action. Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11^th Cir. 1993).

A "document filed pro se is 'to be liberally construed,' . . . , and 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.' " Erikson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also Mederos v. United States, 218 F.3d 1252, 1254 (11^th Cir. 2000) (discussing that pro se filings are entitled to liberal construction). "Courts do and should show a leniency to pro se litigants not enjoyed by those with the benefit of a legal education. . . . Yet even in the case of pro se litigants this leniency does not give a court license to serve as de facto counsel for a party, . . . or to rewrite an otherwise deficient pleading in order to sustain anaction." GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11^th Cir. 1998) (citations omitted), overruled on other grounds as recognized in Randall v. Scott, 610 F.3d 701, 709 (11^th Cir. 2010).

III. DISCUSSION

A. Res Judicata and Collateral Estoppel⁴

1. Res Judicata

To the extent that Plaintiff's claims are predicated upon her contention that Defendant has no right to initiate foreclosure proceedings or foreclose on the Property, or can be construed to be part of the same foreclosure proceeding that was scheduled for February 2015 (even though a new foreclosure date has subsequently beenscheduled for March 1, 2016, [Doc. 1 at 2]), Plaintiff's claims are barred by res judicata.

Under the principle of res judicata, or claim preclusion, a final judgment on the merits in a civil action operates to preclude a party, or those in privity with that party, from re-litigating in a subsequent proceeding issues that were or could have been raised in the original action. Federated Dep't Stores, Inc., v. Moitie, 452 U.S. 394, 398 (1981); Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11^th Cir. 1999) (holding that res judicata "bars the filing of claims which were raised or could have been raised in an earlier proceeding") (citation omitted). The doctrine is "a rule of fundamental and substantial justice, of public policy and of private peace," operating to protect defendants against duplicative litigation over the same claims, and accordingly, may not be overridden based on equitable considerations. Federated Dep't Stores, Inc., 452 U.S. at 401 (quotation omitted). "The doctrine of res judicata is one of finality, providing that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights and responsibilities of the parties and their privies. As to the parties in the prior proceeding and their privies, res judicata constitutes an absolute bar to a subsequent judicial proceeding involving the same cause of action." Baptiste v. IRS, 29 F.3d 1533, 1539 (11^th Cir. 1994).

In considering whether to give preclusive effect to state-court judgments under res judicata or collateral estoppel, the federal court must apply the rendering...