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Nolan v. Shulman, Rogers, Gandal, Pordy & Ecker, P.A.

United States District Court, District of Columbia

September 13, 2017

VICKI R. NOLAN, Plaintiff,
v.
SHULMAN, ROGERS, GANDAL, PORDY & ECKER, P.A.; HSBC MORTGAGE CORPORATION USA; FEDERAL NATIONAL MORTGAGE ASSOCIATION; AND MCGUIREWODDS, LLP., Defendants.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE.

         Plaintiff Vicki R. Nolan brings this pro se action challenging a foreclosure proceeding. In 2005, Nolan used property she owned in Washington, D.C. to secure a mortgage from defendant HSBC Mortgage Corporation. (Compl. p. 4 ¶ 1 and Ex. A). Nolan subsequently filed a lawsuit in the District of Columbia Superior Court against HSBC and defendant Federal National Mortgage Association (“Fannie Mae”), which had assumed the loan. See Nolan v. HSBC Mortg. Corp., 16-cv-1265-TSC (D.D.C.), ECF No. 6, ECF pp. 2-4, 33-50. In that suit, Nolan asserted, inter alia, claims for fraud, intentional infliction of emotional distress, as well as slander of title, and sought “foreclosure and declaratory” relief. Id. at ECF No. 6, ECF p. 33. In June 2016, Fannie Mae removed the lawsuit to this court (hereinafterNolan I”). See Nolan v. HSBC Mortg. Corp., 16-cv-1265-TSC (D.D.C.), ECF No. 1.

         Shortly thereafter, both Fannie Mae and HSBC filed motions to dismiss. On July 1, 2016, this court ordered Nolan to respond to the motions by July 25, and warned her that failure to respond in a timely manner might result in the court treating the motions as conceded. Nolan I at ECF No. 12. The court later granted Nolan an extension through September 8, 2016, but she never responded or sought leave for an extension of the deadline, and the court dismissed Nolan I on September 30. Nolan I at July 27, 2016 Minute Order; id., ECF Nos. 14-15.

         Meanwhile, on July 13, 2016, shortly after removing Nolan I to this court, Fannie Mae (represented by a law firm that is not a defendant here) sought foreclosure on the property in D.C. Superior Court. See Federal National Mortg. Assoc. v. Nolan, 2016 CA 005095 R(RP) (D.C. Super. Ct.). Several months later, on September 9, the Superior Court entered a default judgment against Nolan. Id. That same day, Nolan filed the instant lawsuit. Subsequently, she obtained relief from the default judgment in the foreclosure proceeding, which is on-going, with mediation scheduled for mid-September. Id.

         In this case, Nolan names as defendants HSBC and its law firm during Nolan I (Shulman, Rogers, Gandal, Pordy & Ecker, P.A.), as well as Fannie Mae and its law firm during Nolan I (McGuireWoods LLP). Although her Complaint is difficult to comprehend, it appears that she seeks to recover “damages” related to the foreclosure of the Washington, D.C. property, give notice of lis pendens, [1] discharge her loan obligation on the property, obtain a refund on all loan payments, as well as obtain injunctive relief and a declaration that the foreclosure proceedings are “wrongful, unlawful and void.” (Compl. p. 1; id. p. 3 ¶ 3; id. p. 12 ¶ 35; id. p. 19 ¶ 1; id. p. 20 ¶ 4; id. p. 21 ¶¶ 11-12). Although many of these claims are not actionable, Nolan seeks relief for alleged “fraud on the court, ” (id. pp. 7-9 ¶¶ 17-19); fraud (id. pp. 10-11 ¶¶ 26-32); slander of title (id. p. 18); as well as violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (id. p. 3; id. pp. 9-10 ¶¶ 21-25; id. pp. 12-13); the District of Columbia Rules of Professional Conduct (id. p. 13); the Fourth Amendment Due Process Clause (id. p. 16); Executive Order 11615 (id. p. 6 ¶ 15);[2] the Economic Stabilization Act of 1970 (id.); the Emergency Banking Relief Act (id.); Public Law 73-10;[3] and provisions of the Uniform Commercial Code (id.).

         After Defendants filed motions to dismiss (ECF Nos. 5, 7), the court ordered Nolan to respond, and warned her that the court might treat as conceded any arguments advanced by the Defendants that she failed to address in her opposition. (ECF No. 9). Nolan filed two responses and an affidavit, to which she attached an evidentiary exhibit. (ECF Nos. 10, 11, 12).[4]

         For the reasons set forth below, the court will GRANT the Defendants' motions.

         A. Nolan I

         Nolan asks the court to “enjoin” Nolan I, which was pending when she filed the instant lawsuit. (Compl. pp. 8-10, ¶¶ 19-20). The court interprets Nolan's request as a plea to consolidate the two cases and, to the extent she seeks this type of relief, the court will deny her request for several reasons.

         First, it does not appear that this court has jurisdiction over Nolan I. Fannie Mae cited 12 U.S.C. § 1723(a) as the basis for removal, but the court assumes that Fannie Mae intended to cite 12 U.S.C. § 1723a(a), which the Circuit Court recognized as a legitimate basis for federal jurisdiction “in Fannie Mae cases” at the time of the removal. See Araya v. JPMorgan Chase Bank, N.A., 775 F.3d 409, 415 (D.C. Cir. 2014) (citing Pirelli Armstrong Tire Corp. Retiree Med. Benefits Tr. ex rel. Fed. Nat'l Mortg. Ass'n v. Raines, 534 F.3d 779, 785 (D.C. Cir. 2008)). Earlier this year, however, the Supreme Court held that § 1723a(a) does not create an independent basis for subject matter jurisdiction in federal court cases involving Fannie Mae. Lightfoot v. Cendant Mortg. Corp., 137 S.Ct. 553 (2017). Thus, it appears that this court is without jurisdiction over Nolan I.

         Second, even if this court had jurisdiction, Nolan I was dismissed on September 30, 2016 and therefore cannot be consolidated unless the court re-opens the case. Re-opening is not an option, however, because Nolan has not established that she meets the requirements of Federal Rule of Civil Procedure 60, which states that “[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . .; or (6) any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(1).

         The only possible basis for relief under Rule 60(b) appears to be alleged fraud. Although Nolan seems to allege that Shulman produced “false documents” and made “false statements, ” thereby purportedly committing “fraud on the court” (Compl. pp. 8-9; id. p. 10 ¶¶ 24, 28; id. p. 11 ¶ 30), it is unclear whether this alleged conduct occurred in this court or in D.C. Superior Court. Moreover, Nolan has provided no details about the alleged fraud and therefore this court is unable to determine whether she has made a prima facie case to support such a claim. See Davis v. U.S. Dep't of Health & Human Servs., 968 F.Supp.2d 176, 184 (D.D.C. 2013), aff'd, 2014 WL 2178705 (D.C. Cir. Apr. 25, 2014) (“Fraud on the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. Fraud upon the court refers only to very unusual cases involving far more than an injury to a single litigant. Examples include the bribery of a judge or the knowing participation of an attorney in the presentation of perjured testimony.”) (citation omitted). Accordingly, Nolan has not satisfied the requirements for relief pursuant to Rule 60(b), and the court will deny Nolan's request to “enjoin” Nolan I.

         B. Fannie Mae and McGuireWoods LLP's Motion to Dismiss

         Fannie Mae (the current note holder) and its Nolan I counsel, McGuireWoods, seek dismissal because Nolan does not mention them or any alleged misconduct by them in the body of the Complaint; they are named only in the case caption and the ...


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