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McCain v. Bank of America

United States District Court, D. Columbia.

January 30, 2014

TERRYLYN MCCAIN, Plaintiff,
v.
BANK OF AMERICA, et al., Defendants

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[Copyrighted Material Omitted]

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TERRYLYN MCCAIN, Plaintiff, Pro se, Stockton, CA.

For BANK OF AMERICA, NA, RECONTRUST COMPANY, NA, BANK OF NEW YORK MELLON, Defendants: Thomas R. Lynch, LEAD ATTORNEY, BRADLEY ARANT BOULT CUMMINGS LLP, Washington, DC.

For VANZETTI PROPERTIES, LP, JOHN VANZETTI, STEVE VANZETTI, ANTHONY GHIO, Defendants: Joseph P. Esposito, LEAD ATTORNEY, HUNTON & WILLIAMS LLP, Washington, DC.

For SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR SAN JOAQUIN COUNTY, Defendant: Stephen Anthony Horvath, LEAD ATTORNEY, BANCROFT, MCGAVIN, HORVATH & JUDKINS, P.C., Fairfax, VA.

For STEVE MOORE, In his official and private capacity, SAN JOAQUIN COUNTY SHERIFF'S OFFICE, also known as SAN JOAQUIN COUNTY SHERIFFS DEPARTMENT, Defendants: Aaron W. Knights, D. Michelle Douglas, KALBIAN HAGERTY LLP, Washington, DC.

OPINION

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MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge.

Plaintiff Terrylyn McCain, who is proceeding pro se, brings this lawsuit against ten defendants, including financial institutions, property owners, the California Superior Court in San Joaquin County, the Sheriff of San Joaquin County and that Sheriff's Department, seeking a declaratory judgment with respect to the title of her San Joaquin, California home and an injunction against any eviction from or foreclosure of the property on grounds that such foreclosure and eviction violate her due process rights, have caused intentional infliction of emotional distress, contravene the False Claims Act, 31 U.S.C. § § 3729 et seq., and violate a consent judgment entered against multiple financial entities, including Bank of America, N.A. (" BOA" ), in an unrelated matter pending in this Court. See First Amended Compl. (" FAC" ) generally, ECF No. 4.

Pending before the Court are motions by the plaintiff for a temporary restraining order and by the defendants for dismissal of this lawsuit on multiple grounds. For the reasons explained below, the defendants' motion to dismiss for improper venue is granted.

I. BACKGROUND

The plaintiff's eighty-two page amended complaint provides the factual allegations outlined below. The plaintiff is a California homeowner, whose property is located in San Joaquin County, California. See FAC ¶ 108. The plaintiff originally obtained a mortgage from a non-party company, which subsequently " assigned" the mortgage to defendant BOA. Id. ¶ ¶ 11; 21. BOA thereafter foreclosed on the plaintiff's mortgage and the property was sold to defendants Vanzetti Properties, John Vanzetti, Anthony Ghio, and Steven Vanzetti (" Property Owner Defendants" ). Id. ¶ 23. The plaintiff alleges that these defendants, acting as agents of BOA, coordinated with " local government agencies" to deprive the plaintiff of her personal property in " violation the consent [judgment]." Id. ¶ 21.[1] Specifically, the plaintiff claims that defendants " have deliberately and with malice raced at break neck speed towards foreclosure and eviction of the [plaintiff] from her home in absolute defiance of several provisions of [a] CONSENT DECREE . . . and have acted as if they have powers to enforce the note even though they have not proved their ownership interest in the note and have not proved their possession of the original note." Id. ¶ 11.

The crux of the plaintiff's complaint is that the transfer of the deed of trust to BOA was fraudulent. Id. This led BOA " and it [sic] agents," which allegedly include

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defendants Recontrust Company N.A. and the Bank of New York Mellon (collectively with BOA, the " Bank Defendants" ), to " foreclose on [the plaintiff's] home without any admissible evidence that they are the note holders in violation of numerous sections of the Uniform Commercial Code." Id. ¶ 27. This purportedly violated the " Consent [judgment] . . . [which] specifically prohibits many of the particular actions taken by the [d]efendants." Id. ¶ 30. The plaintiff alleges that under the consent judgment, " all pleadings and other court documents in foreclosure proceedings must be accurate and complete," a requirement which allegedly cannot be met by BOA because BOA cannot produce the mortgage note. Id. Consequently, the plaintiff alleges that the foreclosure proceedings were premised on inaccurate documentation. Id.

Based upon the plaintiff's belief that the foreclosure action was improper and that any eviction action based on such foreclosure would be unlawful, the plaintiff also sued the Sheriff of San Joaquin County in his personal and private capacity, along with the entire San Joaquin County Sheriff's Department (collectively known as the " Sheriff's Department Defendants" ). Id. ¶ 21. The plaintiff alleges that the Sheriff " either knew or should have known that the consent [judgment] issued by this court in the . . . case filed against the[] five largest banks" was in force, and that he " is assisting the five largest banks in violating the" Consent Judgment. Id. In fact, the plaintiff alleges that the Sheriff " has set a custom and policy to defy and ignore the" Consent Judgment. Id. Based upon this policy, the Sheriff's Department will " take actions in defiance of the" Consent Judgment while " acting as agents for and on behalf of" BOA. Id.

Likewise, the plaintiff has named the Superior Court of the State of California, County of San Joaquin as a defendant in the instant suit to enjoin the Superior Court " prospectively" from issuing a future eviction notice. Id. ¶ 2.[2]

Based on the factual allegations outlined above, the plaintiff has styled seven causes of action (" COA" ): (1) " An order of Cease and Desist in the Nature of Injunctive Relief" for " violation of the consent decree" to prevent the plaintiff's eviction from her home (" First COA" ), FAC ¶ ¶ 2; 83; (2) " [v]iolation of the [plaintiff's] Rights to Due Process of law and Intentional infliction of emotional distress" (" Second COA" ), id. ¶ 107; (3) " conspir[acy]" by the defendants, in " violation of Section 1983, 1985 and 1986 of Title 42, U.S. Code, [s]ince the Non-state actors employed and used the state actors and government organs and instrumentalities to carry out their unlawful activities" (" Third COA" ), id. ¶ 122; and (4) violations of the Federal False Claims Act, 31 U.S.C. § 3729, against all defendants (" Fourth, Sixth, and Seventh COAs" ), id. ¶ ¶ 127-34; 144-58, and against the Bank defendants (" Fifth COA" ), id. ¶ ¶ 135-43.

The plaintiff seeks declaratory relief to reverse the foreclosure sale, id. ¶ 168, to issue a cease and desist order prohibiting " any further actions to sell the property subsequent to the fraudulent foreclosure on this alleged debt" or to evict the plaintiff from the subject property, id. ¶ ¶ 170-71, and a judgment declaring that BOA has never had any right to enforce the note, id. ¶ 169. Additionally, the plaintiff seeks an award of compensatory damages

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" in an amount to be proven at the time of trial." Id. ...


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