Whittiker v. Deutsche Bank National Trust Co., Case No. 1:08 CV 300.

CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
Citation605 F.Supp.2d 914
Docket NumberCase No. 1:08 CV 300.
PartiesJerry A. WHITTIKER, et al., Plaintiffs, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, et al., Defendants.
Decision Date17 March 2009
605 F.Supp.2d 914
Jerry A. WHITTIKER, et al., Plaintiffs,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, et al., Defendants.
Case No. 1:08 CV 300.
United States District Court, N.D. Ohio, Eastern Division.
March 17, 2009.

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Colin P. Sammon, Thomas D. Robenalt, William J. Novak, Novak, Robenalt, Pavlik & Scharf, James B. Rosenthal, Jason R. Bristol, Joshua R. Cohen, Thomas A. Downie, Cohen, Rosenthal & Kramer, Kenard McDuffie, Trivers & Dickerson, Cleveland, OH, Jerry A. Whittiker, Garfield Heights, OH, for Plaintiffs.

Tracy A.S. Francis, Hugh E. McKay, Tracey L. Turnbull, Porter, Wright, Morris & Arthur, Andrea E.M. Stone, Frances F. Goins, Maria A. Del Monaco, Elizabeth A. Harvey, Ulmer & Berne, Cleveland, OH, Jami Wintz McKeon, Morgan, Lewis & Bockius, San Francisco, CA, Orville L. Reed, III, William D. Dowling, Buckingham, Doolittle & Burroughs, Akron, OH, for Defendants.

MEMORANDUM OPINION
(Resolving ECF 54, 70, 72, 74, 75, 76, and 92-2)

DAVID D. DOWD, JR., District Judge.


I. INTRODUCTION AND PROCEDURAL BACKGROUND

A. Defendants' Dispositive Motions

Plaintiffs allege in this putative class action that defendants violated the federal Fair Debt Collection Practices Act and the Ohio Corrupt Activities statute because of misrepresentations made by defendants during foreclosure proceedings against plaintiffs. Before the Court are motions by all defendants1 for judgment on the

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pleadings and or to dismiss all three counts of plaintiffs' first amended complaint (Complaint) for failure to state a claim.2 The collective bases of defendants' motions are: 1) lack of subject matter jurisdiction pursuant to the Rooker-Feldman doctrine; 2) abstention pursuant to the Younger doctrine; 3) res judicata (claim and issue preclusion); 4) FDCPA statute of limitations; and 5) no FDCPA violation.

Plaintiffs were granted leave to conduct limited discovery before responding to defendants' dispositive motions (ECF 82), after which plaintiffs filed an omnibus response to defendants' motions (ECF 85). Defendants each replied to plaintiffs' omnibus response,3 to which plaintiffs filed an omnibus sur-reply (ECF 95). DBNTC filed a reply to plaintiffs' sur-reply (ECF 97).

B. Report and Recommendation

The Court referred all of defendants' dispositive motions to United States Magistrate Judge Benita Pearson for a Report and Recommendation (ECF 93). Magistrate Judge Pearson heard oral argument on December 2, 2008, and subsequently issued a Report and Recommendation (Recommendation) regarding the disposition of those motions, as well as DBNTC's requests to take judicial notice of certain documents filed in support of its motion to dismiss (ECF 99). Magistrate Judge Pearson has recommended: 1) granting defendants' Rule 12 motions as to Count 1 of plaintiffs' Complaint alleging violation of the FDCPA; 2) dismissing without prejudice Counts 2 and 3 of plaintiffs' Complaint, which involve state law claims; and 3) granting DBNTC's request to take judicial notice of certain documents.

C. Plaintiffs' Objections to Report and Recommendation and Defendants' Responses

Plaintiffs requested and received an extension of time to file their objections to the Recommendation (ECF 100). Plaintiffs objected to the Recommendation (ECF 101) insofar as it recommends: 1)

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granting defendants' motions as to plaintiffs' federal claims under the FDCPA (Count 1); 2) dismissing without prejudice plaintiffs' state law claims (Counts 2 and 3); and 3) granting DBNTC's requests for judicial notice.

Defendants requested an extension of time to respond to plaintiffs' objections (ECF 102). The Court allowed defendants more time, but not as much as they requested (ECF 103). Three of the four defendants filed responses to plaintiffs' objections: WWR (ECF 104), Reisenfeld (ECF 106), and DBNTC (ECF 107).

MDK did not respond to plaintiffs' objections, but Kimball filed a stipulated dismissal dismissing Count 1 of the Complaint (FDCPA violation) against MDK with prejudice, and dismissing the remaining state claims—Counts 2 and 3—against MDK without prejudice. See ECF 105. Kimball's stipulated dismissal as to MDK specifically states that her claims against DBNTC remain. Id. The Court accordingly ordered the dismissal of Kimball's FDCPA claims (Count 1) against MDK with prejudice, and the dismissal of Kimball's state claims (Counts 2 and 3) against MDK without prejudice. See ECF 108. Consequently, defendant MDK's motion for judgment on the pleadings, ECF 70, is DENIED without prejudice as moot.

D. De novo Review

The Court conducted a de novo review of the Recommendation pursuant to Rule 72(b)(3) of the Federal Rules of Civil Procedure. As a result of that de novo review and for the reasons discussed below, the Court concludes as follows: 1) DBNTC's requests that the Court take judicial notice of certain documents filed in support of its motion to dismiss (ECF 76 and 92-2) are GRANTED; and 2) defendants' Rule 12 motions as to Count 1 of the Complaint alleging violations of the FDCPA (ECF 70, 72, 74 and 75), are GRANTED.

After dismissing plaintiffs' federal claims, Count 1, the Court declines to exercise jurisdiction over plaintiffs' state claims (Counts 2 and 3). Accordingly, defendants' motions as to plaintiffs' state law claims, Counts 2 and 3 (ECF 70, 72, 74 and 75), are DENIED without prejudice as moot.

Lastly, plaintiffs have moved for class certification (ECF 54). In light of the Court's ruling on defendants' dispositive motions, plaintiffs' motion for class certification is DENIED without prejudice as moot.

II. FACTS

A. Whittiker Foreclosure

On December 16, 2004, plaintiffs Jerry and Whittiker and Frances Whittiker (collectively, Whittiker) executed a promissory note to First NLC Financial Services, LLC, (First NLC) primarily for personal, family or household purposes. The note was secured by a mortgage to First NLC on property located in Maple Heights, Ohio.

On December 1, 2006, defendant DBNTC, claiming that it was the owner and holder of the note executed by Whittiker, sued Whittiker in the Cuyahoga County Court of Common Pleas to foreclose on the Maple Heights property (Whittiker Foreclosure Action). Defendant WWR, a law firm, filed and prosecuted the foreclosure action against Whittiker on behalf of DBNTC. The Whittiker Foreclosure Action concluded with a judgment in favor of DBNTC and the property was sold to DBNTC at a sheriff's auction in January, 2008. Whittiker alleges in the Complaint that DBNTC was not the owner and holder of the promissory note when the Whittiker Foreclosure Action was filed.

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B. Kimball Foreclosure

On November 20, 2004, plaintiff Valeria Kimball (Kimball) executed a promissory note to Ameriquest Mortgage Company (Ameriquest). The note was secured by a mortgage to Ameriquest on property located on East 173rd Street in Cleveland, Ohio. On May 25, 2005, defendant DBNTC, claiming that it was the owner and holder of the of the note executed by Kimball, sued Kimball in the Cuyahoga County Court of Common Pleas to foreclose on the East 173rd Street property (Kimball Foreclosure Action). Defendant MDK, a law firm, filed and prosecuted the foreclosure action against Kimball on behalf of DBNTC. The Kimball Foreclosure Action concluded with a judgment in favor of DBNTC and the property was sold to DBNTC at a sheriff's auction in November, 2006. Kimball alleges in the Complaint that DBNTC was not the owner and holder of the promissory note when the Kimball Foreclosure Action was filed.

C. Stepanek Foreclosure

On December 2, 2005, plaintiff James Stepanek (Stepanek) executed a promissory note to Argent Mortgage Company, LLC (Argent) primarily for personal, family or household purposes. The note was secured by a mortgage to Argent on property located on West 106th Street in Cleveland, Ohio. On March 25, 2008, defendant DBNTC, claiming that it was the owner and holder of the of the note and mortgage executed by Stepanek, sued Stepanek in the Cuyahoga County Court of Common Pleas to foreclose on the West 106th Street property (Stepanek Foreclosure Action). Defendant Reisenfeld, a law firm, filed and prosecuted the foreclosure action against Stepanek on behalf of DBNTC.

At the time the Complaint was filed, the Stepanek Foreclosure Action was pending. Stepanek alleges in the Complaint that DBNTC actually was not the owner and holder of the note and mortgage when the Stepanek Foreclosure Action was filed. However, the Court notes that the Stepanek mortgage was assigned prior to the Stepanek Foreclosure Action and recorded the same day that action was filed. See ECF 73-3.

III. LAW AND ANALYSIS

A. Rooker-Feldman Doctrine

The Court has Subject Matter Jurisdiction to Rule on this Case

As a threshold matter, defendants contend that the Court lacks subject matter jurisdiction over the Whittiker and Kimball claims under the Rooker-Feldman doctrine. Rooker-Feldman must be considered first because its application strips the Court of jurisdiction to consider affirmative defenses and the other bases of defendants' motions. See Hutcherson v. Lauderdale County, Tennessee, 326 F.3d 747, 755 (6th Cir.2003) (rehearing and suggestion for rehearing en banc denied).

The Rooker-Feldman doctrine stands for the "unremarkable proposition that a federal district court lacks subject matter jurisdiction to review a state court decision." Pittman v. Cuyahoga County Department of Children and Family Services, 241 Fed.Appx. 285, 287 (6th Cir. 2007) (citing McCormick v. Braverman, 451 F.3d 382, 389 (6th Cir.2006)); See D.C. Ct. of App. v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 416, 44 S.Ct. 149, 68 L.Ed. 362 (1923).

A recent United States Supreme Court decision in Exxon Mobil Corp. v.

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Saudi Basic Industries Corp.4 clarified that the application of the Rooker-Feldman doctrine is...

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