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Laverpool v. Taylor Bean & Whitaker Reo LLC

United States District Court, District of Columbia

January 10, 2017

TAYLOR BEAN & WHITAKER REO LLC, et al., Defendants


          COLLEEN KOLLAR-KOTELLY, United States District Judge

         Plaintiff Keith Laverpool brings this action pro se challenging the foreclosure of his property located in Lithonia, Georgia and the servicing of his mortgage prior to the foreclosure. Plaintiff names three separate classes of defendants in this action: (i) the private banking institutions that serviced his mortgage, Taylor Bean & Whitaker REO, LLC; Taylor Bean & Whitaker Mortgage; and RoundPoint Mortgage Servicing Corp. (collectively, “Mortgage Defendants”); (ii) Judge Clarence F. Seeliger of the Georgia State Superior Court, who presided over the foreclosure action (“Defendant Seeliger”); and (iii) the U.S. Department of Housing and Urban Development (“HUD”). Plaintiff brings various civil rights claims under 42 U.S.C. § 1983, claims of “Dishonest government Services and Mail Fraud, ” and claims of “racketeering violations” or RICO violations under 18 U.S.C. §§ 1961-1968. Compl. ¶¶ 1-6, 68-96. While Plaintiff's claims and legal theories are not a model of clarity, the Court construes his pro se filings liberally in considering the instant motions. Toolasprashad v. Bur. of Prisons, 286 F.3d 576, 583 (D.C. Cir. 2002).

         Presently before the Court are the motion to dismiss filed by Judge Seeliger and the separately filed motion to dismiss of the three Mortgages Defendants.[1] Also before the Court is Plaintiff's Motion to Amend Complaint. Although the Court has taken pains to advise Plaintiff of the consequences of failing to respond to the dispositive motions filed by the Mortgage Defendants and Judge Seeliger, Plaintiff has not filed any opposition to the Motions to Dismiss currently before the Court.[2] The Court, nonetheless, shall not treat these Motions as conceded, but shall examine the substance of Defendants' asserted bases for dismissal. Upon consideration of the parties' submissions, [3] the applicable authorities, and the entire record, the Court finds that the Court lacks jurisdiction over the claims against Judge Seeliger and the Mortgage Defendants, and accordingly shall GRANT Defendant Judge Seeliger's [5] Motion to Dismiss and shall also GRANT the [4] Motion to Dismiss of Defendants Taylor Bean & Whitaker Reo LLC, Taylor Bean & Whitaker Mortgage, and Round Point Mortgage Servicing Corp. Furthermore, the Court shall DENY Plaintiff's [14] Motion for Leave to Amend Complaint as futile.

         I. BACKGROUND

         This action arises out of the circumstances surrounding the foreclosure of Plaintiff's residential property in DeKalb County, Georgia and is only Plaintiff's latest in a long line of challenges to the foreclosure of his property. Whereas the resolution of the motions before the Court turn more on the procedural history of Plaintiff's prior litigation than on the underlying facts, the Court shall set out the factual background only to the extent necessary to fairly address the motions before it. However, the Court shall set out in greater detail the history of the prior litigation that preceded Plaintiff's filing of this action.

         A. Factual Background

         In June 2007, Plaintiff obtained a loan (“the Loan”) from Taylor Bean & Whitaker Mortgage in the amount of $177, 219. Compl. ¶ 13. The Loan was secured by the deed to the residential property located at 1580 Smithson Court, Lithonia, Georgia. See, e.g., id., Ex. J at 2. It appears on September 23, 2009, RoundPoint Mortgage Servicing Corporation began servicing Plaintiff's loan. Id. ¶ 26; id., Ex. E (Jan. 27, 2015, Letter from Troutman Sanders to Plaintiff indicating that Taylor, Bean & Whitaker Mortgage Corp. “is no longer servicing your Loan. Effective as of September 23, 2009, servicing of the Loan was transferred to RoundPoint Mortgage Servicing Corporation.”). Experiencing difficulties meeting his payment obligations under the Loan, Plaintiff requested and indeed received temporary assistance from RoundPoint; in a letter dated July 12, 2012, RoundPoint agreed to accept reduced monthly payments for a period of three months under a Temporary Repayment Agreement. Compl., Ex. C; see also Compl. ¶ 32; Seeliger Mot. to Dismiss at 7. Plaintiff continued to have difficulties making payments on the Loan and made additional efforts “in the process of navigating the loan modification process.” Compl. ¶ 34. Plaintiff's failure to make payments on the Loan ultimately led to the foreclosure action at issue in this matter.

         B. Foreclosure Action and Prior Collateral Proceedings

         Although the foreclosure proceedings are at the heart of Plaintiff's claims, his Complaint and the exhibits annexed thereto do not lay out the foreclosure proceedings particularly clearly. Accordingly, the Court looks to the recitation of the facts surrounding the foreclosure proceedings set out in the Opinion and Order of the United States District Court for the Northern District of Georgia in Plaintiff's wrongful foreclosure action, Laverpool v. Taylor, Bean & Whitaker Mortgage Corp., No. 1:15cv566, 2005 WL 8179844 (N.D.Ga. Dec. 7, 2015) (“Laverpool II”).[4] See Fletcher v. Evening Star Newspaper Co., 133 F.2d 395, 395 (D.C. Cir. 1942) (permitting the court to take judicial notice of opinions involving “the same subject matter or questions of a related nature between the same parties”); see also infra section III.A (further discussing the permissibility of the Court's evaluation of the record beyond the complaint in evaluating whether a case must be dismissed for lack of subject matter jurisdiction). Wherever possible, however, the Court shall also refer to Plaintiff's Complaint.

         Plaintiff again defaulted on the Loan obligations, ultimately-though not immediately- resulting in the foreclosure proceedings that Plaintiff challenges in this action. By letter dated August 28, 2014, RoundPoint notified Plaintiff that he was in default. Compl., Ex. F.[5] Plaintiff appears to have completed an application for loan modification on September 1, 2014, using the Uniform Borrower Assistance Form provided to him by Roundpoint. Id. It is unclear to this Court whether RoundPoint ever received this September 1, 2014, application for loan modification, though the Court will accept as true Plaintiff's assertion that he “submitted documentation for a loan modification with RoundPont Mortgage Servicing Corporation.” Id. ¶ 18.[6] The Court nonetheless notes that Plaintiff seems to implicitly acknowledge that even though he sent the request, it does not appear to have been processed.[7] Id., Ex. F. The Court additionally notes that the United States District Court for the Norther District of Georgia found that Plaintiff's first application for loan modification with RoundPoint was submitted on “January 9, 2015, at the earliest.” Laverpool II, 2005 WL 8179844, at *2.

         Following Plaintiff's default on his loan obligations, Taylor Bean Whitaker Mortgage (“TBW Mortgage”) initiated foreclosure proceedings. In a letter prepared by counsel and dated December 29, 2014, TBW Mortgage advised Plaintiff of his default on the Loan and that a foreclosure sale of the property securing the loan (his residential property located at 1580 Smithson Court) would take place on February 3, 2015. Id., at *2. The sale was held and the Property was purchased by TBW Mortgage, which filed a petition on February 23, 2015, in DeKalb County Superior Court, seeking to have the court confirm and approve the foreclosure sale (“Confirmation Action”). Id.; see also Seeliger Mot. to Dismiss, Ex. A. This Confirmation Action was assigned to Judge Seeliger, who issued an order on April 14, 2015, reviewing and approving of the manner in which the foreclosure sale had been conducted, and finding that “Petitioner fulfilled all of the legal requirements of conducting a non-judicial foreclosure sale required by statute, including notice, advertisement, and conduct of sale. The property at issue brought its true market value of $110, 000.00 at the time of the foreclosure sale. The Court hereby confirms the foreclosure sale conducted by Petitioner regarding the property.” Taylor Bean & Whitaker Mortgage v. Laverpool, No. 15cv2569-3 (DeKalb Cnty. Super. Ct. Apr. 14, 2015) (Order confirming foreclosure sale); Seeliger Mot. to Dismiss, Ex. B at 2. Plaintiff filed a motion for reconsideration, which the Superior Court denied on June 24, 2015; and filed a notice of appeal with the Court of Appeals for the State of Georgia, which dismissed the appeal on August 26, 2015, for lack of jurisdiction on account of Plaintiff's failure to timely file his notice of appeal. Laverpool v. Taylor, Bean & Whitaker Mortgage Corp., No. A15A2293 (Ga.Ct.App. Aug. 26, 2015) (Order dismissing appeal).

         As these foreclosure proceedings commenced and proceeded, Plaintiff pursued multiple avenues in seeking to protect his property against foreclosure. Plaintiff again applied for loan modification, again submitting the Uniform Borrower Assistance Form dated January 1, 2015. Compl., Ex. H. RoundPoint appears to have received and processed this second request. Id., Ex. G (e-mails between Scott Curry, a “Portfolio Specialist” with RoundPoint, and Plaintiff dated between January 18, 2015, and January 20, 2015, seemingly referring to Plaintiff's loan modification application dated January 1, 2015).

         Additionally, in the months leading up to TBW Mortgage's issuance of the foreclosure notice letter on December 29, 2014, Plaintiff filed four separate bankruptcy cases in the Northern District of Georgia. Each was dismissed. Laverpool II, 2015 WL 8179844, at *1, n.1. Plaintiff also filed two separate actions in the Superior Court of DeKalb County, Georgia, both of which were removed by the defendants to the United States District Court for the Northern District of Georgia. In the first, which Plaintiff filed on December 3, 2014, Plaintiff named TBW Mortgage, RoundPoint, and MERS as defendants in an action to quiet title as to his residential property which secured the Loan. Laverpool v. Taylor Bean & Whitaker Mortgage Corp., No. 1:15cv78 (N.D.Ga. removed Jan. 9, 2015) (“Laverpool I”). After the defendants had removed the case to Federal Court and filed their motion to dismiss for failure to state a claim, Plaintiff voluntarily dismissed the action on January 16, 2015. See Laverpool II, 2015 WL 8179844 at *1 n.1.

         In his second suit, filed on January 26, 2015, Plaintiff raised a claim of attempted unlawful foreclosure, sought emergency injunctive relief to stop the foreclosure sale, and also sought compensatory and punitive damages. Laverpool II, No. 1:15cv566 (N.D.Ga. removed Feb. 26, 2015). On December 7, 2015, the court dismissed the case upon the defendants' motion for failure to state a claim. Laverpool II, 2015 WL 8179844, at *2. Plaintiff filed a Notice of Appeal with the United States Court of Appeals for the Eleventh Circuit and sought leave to proceed on appeal in forma pauperis. The District Court denied his Application to Appeal In Forma Pauperis, finding that his Complaint “fail[ed] to state a viable claim for relief, his statement of issues to be appealed bears no legal or factual relation to the issues that required dismissal of Plaintiff's Complaint. This action is simply Plaintiff's latest attempt to challenge the validity of his mortgage debt and delay foreclosure and dispossession following his default on his loan obligations.” Laverpool II, No. 1:15cv566 (N.D.Ga. Mar. 29, 2016) (Opinion & Order denying Application to Appeal IFP) at 7-8, ECF No. 16. The court thus concluded that the appeal was not taken in good faith and that the application to proceed on appeal in forma pauperis must be denied. Id. at 8. The Court of Appeals for the Eleventh Circuit similarly concluded that the appeal was frivolous, lacking “arguable merit either in law or fact, ” and therefore denied Plaintiff's motion to proceed in forma pauperis after a brief substantive review of the case. Laverpool II, No. 15-15780 (11th Cir. Nov. 9, 2016) (Order denying motion for IFP status).

         C. Plaintiff's Particular Claims against Defendants

         In the present action, Plaintiff seeks this Court's intervention regarding the foreclosure sale of his residential property that secured the Loan and reasserts claims that both federal and Georgia state courts have already rejected. Plaintiff styles his claims as presenting a federal question, alleging violations under the Hobbs Act and RICO provisions, and bringing forth constitutional challenges under the Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments. Compl. ¶ 8. While Plaintiff's theories as to the liability of each defendant are not entirely clear, the Court shall construe them liberally and attempt to summarize them briefly.

         Just as in both the Georgia state and federal court proceedings, Plaintiff's claims here revolve around his assertion that the foreclosure on his property was a part of the Mortgage Defendants' pattern and practice of unfair lending procedures, including “‘Dual-Tracking, '” and that the Georgia state and federal courts were complicit in permitting the Mortgage Defendants to pursue foreclosures improperly. Id. ¶¶ 33-38. Plaintiff seems to assert, in essence, that the Mortgage Defendants' practices and Georgia state law are not in accordance with federal efforts undertaken to protect borrowers following the national mortgage crisis. Plaintiff alleges that the “void in Georgia law opens the door for the State and the Corporations to defraud the Government of funds set aside for its Citizens, ” id. ¶ 42, and further allows the “Banks/Mortgage companies to put Fraud on the Court, ” id. ¶ 44. Plaintiff argues, it appears, that in his case, this fraud and illegality took shape in what he characterizes as impermissible dual-tracking: Mortgage Defendants, he claims, pursued foreclosure on the Property while Plaintiff simultaneously pursued loan modification to avoid foreclosure. Id. ¶¶ 33-35, 48-54. Plaintiff also seems to argue that the foreclosure process was defective because “[a]bsent a Landlord-Tenant relationship TWB REO LLC doesn't have standing to bring this action before the court leaving the Court in want of Jurisdiction . . . TBW's Counsel brought the case in bad faith with deceit and lacks merit.” Id. ¶¶ 60-61. Judge Seeliger, Plaintiff alleges, became a participant in the unlawful foreclosure process when he “knowingly, willingly, and intentionally joined the ongoing scheme, artifice, and/or conspiracy to deprive Plaintiff of fundamental and statutory rights and the Citizens of Georgia of honest government services.” Id. ¶ 37.

         From these assertions, Plaintiff makes five separate claims against the various defendants.[8] Plaintiff brings three separate civil rights claims under § 1983, id. ¶¶ 68-81, 86-89, alleging that all Defendants, including the Mortgage Defendants, acted “under color of state law, ” id. ¶ 69. More specifically, in Count One, Plaintiff alleges due process violations, [9]seemingly under the theory that the dual tracking of which Plaintiff complains and the judicial confirmation of the foreclosure sale of his property resulted in a deprivation of property without due process of law. In Count Two, Plaintiff adds an additional aspect to his due process claims, alleging Fourteenth Amendment violations by the Mortgage Defendants and also clarifies his theory of Judge Seeliger's involvement. Plaintiff here alleges that because he was not in a landlord-tenant relationship with the Mortgage Defendants, they did not “have standing to bring this action before the court leaving the Court in want of Jurisdiction.” Id. ¶¶ 78-79. Therefore, Plaintiff claims, Defendant Seeliger “became an accomplice and co-conspirator to violate among other things Plaintiff's due process rights and opportunity to be heard” when he “negligently” confirmed the foreclosure sale through proceedings over which Plaintiff claims the Superior Court of DeKalb County lacked jurisdiction. Id. ¶ 78.

         Plaintiff's Third and Fourth Counts are predicated on Mortgage Defendants' use of the U.S. Mail to send him documents that, he claims were part of their “conspiracy or other scheme or artifice to deprive the Citizens of Georgia of honest government services and Plaintiff of fundamental and statutory rights.” Id. ¶¶ 83-84. He therefore alleges against the Mortgage Defendants claims of “Dishonest Government Services” and Mail Fraud. Id. ¶¶ 82-85 (Count 3). Plaintiff further asserts, without more explanation or clarification, that this conduct violates the Equal Protection Clause, and that he suffers this injury as a “Class of One.” Id. ¶¶ 86-89 (Count 4). Finally, in the Fifth Count of the Complaint, [10] Plaintiff raises claims of “racketeering violations, ” or RICO violations under 18 U.S.C. §§ 1961-1968. Plaintiff contends that all of the defendants formed an “‘association-in-fact' enterprise” for the purpose of engaging in “dishonest government services, ” including the dual tracking that Plaintiff alleges resulted in the unlawful foreclosure on his property and related harms. Id. ¶¶ 92-95. Through these claims, Plaintiff seeks a declaration that Defendants' conduct amount to constitutional violations, injunctive relief against the defendants, compensatory and punitive damages for his injuries, the issuance of a Civil Investigative Demand, and any other relief that the Court deems appropriate.

         For the reasons discussed below, the Court shall not address Plaintiff's claims on the merits, but rather finds that the Court lacks subject matter jurisdiction and must dismiss Plaintiff's claims accordingly.


         A court must dismiss a case pursuant to Rule 12(b)(1) when it lacks subject matter jurisdiction. In determining whether there is jurisdiction, the Court may “consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted); see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (“[T]he district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.”). “At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact.” Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). In spite of the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the plaintiff's burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. Envtl. Prot. Agency, 121 F.Supp.2d 84, 90 (D.D.C. 2000). “Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff[‘s] factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C. 2007) (internal citations and quotation marks omitted). See also Bradley v. DeWine, 55 F.Supp.3d 31, 37 (D.D.C. 2014) (articulating the legal standard to be applied in assessing defendants' challenge to the court's subject-matter jurisdiction where, as here, the pro se plaintiff sought relief in the federal district court regarding the state foreclosure decree) (quoting Bailey v. WMATA, 696 F.Supp.2d 68, 71 (D.D.C. 2010)); Jerome Stevens Pharms. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005)).

         III. ...

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