FONTAINE v. JPMORGAN CHASE BANK, N.A. et al
MEMORANDUM OPINION dismissing case. Signed by Judge Ketanji Brown Jackson on 5/16/2014. (lckbj3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JULIE ELICE FONTAINE,
JPMORGAN CHASE BANK, N.A., et
Civil Action No. 13-cv-1892 (KBJ)
Plaintiff Julie Elice Fontaine (“Plaintiff” or “Fontaine”), proceeding pro se, has
filed a complaint challenging the potential future foreclosure of property that she owns
in Jacksonville, Florida. (See Compl., ECF No. 1.) Fontaine seeks an injunction to
prevent two institutional defendants—JP Morgan Chase Bank, N.A. (“Chase”) and
Federal National Mortgage Association (“Fannie Mae”)—and ten John Does
(collectively, “Defendants”) from foreclosing on 4544 Deer Valley Drive (“the
Property”) at some point in the future, and she also claims that Defendants’ past actions
with respect to assigning the mortgage and securitizing the mortgage Note have both
violated her right to due process and caused her to suffer emotional distress. (See
Compl. ¶¶ 34-60.) Significantly for present purposes, the instant complaint appears to
constitute a preemptive strike against the mere possibility of future default because
Fontaine specifically alleges that she is not delinquent in her mortgage payments to date
and that the Property is not currently subject to foreclosure. (See id. ¶¶ 15, 57.)
As explained further below, this Court concludes that it does not have subject
matter jurisdiction to consider Fontaine’s challenge to a hypothetical potential future
foreclosure proceeding—which is the only foreclosure-related injury that the instant
complaint alleges. Moreover, given existing precedent in this jurisdiction and
elsewhere, Fontaine’s claims and allegations regarding Defendants’ wrongful treatment
of the mortgage Note plainly fail to state a claim upon which relief can be granted.
Consequently, despite the fact that Defendants have elected to file an answer containing
myriad affirmative defenses rather than moving to dismiss the complaint (see Chase
Answer, ECF No. 10, at 8-9; Fannie Mae Answer, ECF No. 11, at 8-9), Fontaine’s
complaint must be DISMISSED in its entirety sua sponte. A separate order consistent
with this opinion will follow.
Fontaine’s 44-page complaint, which was filed on November 27, 2013, is
exceedingly difficult to decipher. Relevant to the Property at issue here, the complaint
alleges that Fontaine initially entered into a mortgage agreement with PHH Mortgage
Corporation (“PHH”) and that PHH later assigned the mortgage to Chase (id. ¶¶ 3, 6;
Assignment of Mortg., Ex. 3 to Compl., ECF No. 1-3 at 2), but it purportedly did not
pass the physical Note to Chase at that time of the assignment. (See Compl. ¶¶ 8, 16.) 1
That assignment was recorded in the Clerk’s Office for Duval County, Florida (see Ex.
3 to Compl.), and at some point thereafter, one of the defendants securitized the Note
and passed ownership of it to a different party. (See Compl. ¶¶ 17, 21, 25, 44.)
Fontaine initially included PHH, formerly known as Cendant Mortgage Corporation, as a defendant in
this action, but this Court granted Fontaine’s subsequent motion to dismiss PHH from this case. (See
Minute Order of Apr. 25, 2014.)
These basic allegations of fact are the basis for the complaint’s contention that
the assignment and securitization of Fontaine’s mortgage Note—in particular, the fact
that the assignment allegedly was not accompanied by a physical transfer of the Note
and securitization further separated the mortgage from the Note—was wrongful. (See
id. ¶ 48). Fontaine contends that, because the original Note was not physically
transferred, the assignment of the Note was invalid and fraudulent such that Defendants
would not have standing to foreclose on the Property if they do attempt to do so in the
future. (See, e.g., id. ¶¶ 45-49.) Fontaine also alleges that Defendants’ handling of the
Note, and any possible future foreclosure action, violated her due process rights under
the Fifth and Fourteenth Amendments of the Constitution (id. ¶ 83), as well as the
Consent Orders issued in United States v. Bank of America, No. 12-361 (D.D.C. Apr. 4,
2012) (Compl. ¶¶ 3, 34, 37), and additionally constituted intentional infliction of
emotional distress (id. ¶ 51). Based on these claims, Fontaine requests compensatory
and punitive damages; a cease and desist order admonishing Defendants not to engage
in any future foreclosure proceedings related to the Property; a declaration that
Fontaine holds superior title to the property and that Defendants have no lawful claim
thereto; and an injunction preventing Defendants from foreclosing on the Property (or
any other property owned by any other similarly-situated mortgagor) in the future. (Id.
Notably, the complaint does not state that any foreclosure proceedings have been
initiated, or even threatened, with respect to the Property. Although the complaint
repeatedly alleges that Defendants “claim authority to foreclose and hold a foreclosure
sale” (Compl. ¶ 53 (emphasis supplied); see also id. ¶¶ 14, 43)—a proposition that
Fontaine vehemently denies—the complaint also emphatically maintains that Fontaine
has not already defaulted on her mortgage obligations. (See, e.g., id. ¶ 15 (“Plaintiff is
not in foreclosure nor ha[s she] been late with mortgage payments for any significant
period or significant number of times.”). Therefore, the gravamen of Fontaine’s
complaint appears to be that Defendants might at some point in the future decide to
foreclose on the Property if Fontaine happens to default on her mortgage obligations,
and that the Court should determine now whether Defendants’ actions (i.e., assignment
of the mortgage without physical possession of the Note and securitization of the Note)
destroyed the mortgage interest such that any such future foreclosure would be
inappropriate. (See, e.g., Compl. ¶ 52 (“The Defendants have a duty to refrain from
proceeding in the future with claims of ownership of the Note or Mortgage when they
lack standing and capacity because they do not have the Note in their possession as
required [by law].”); see also id. ¶ 17 (“Plaintiff may eventually be evicted from [her]
home if Plaintiff is not successful in achieving a court order of cease and desist in this
case if Defendants, et al., conspire to move forward with a foreclosure, albeit
illegally.”); id. ¶ 9 (asserting that “the securitization process” has caused “confusion
and uncertainty about who the Note-holder” is).)
The institutional Defendants answered Fontaine’s complaint on February 4,
2014. (See Answers, ECF No. 10-11.) 2 They assert seven affirmative defenses,
including failure to state a claim upon which relief may be granted, Fontaine’s own
breach of contract and unclean hands, and lack of standing. (See id. at 8-9.) With
respect to Plaintiff’s request for an injunction specifically, Defendants maintain that
Defendants Chase and Fannie Mae appear to have answered the complaint jointly, but have filed
substantively identical answer documents separately on the court’s docket. (See Answers, ECF Nos.
Fontaine lacks irreparable injury and that she has an adequate remedy at law, both of
which bar injunctive relief. (See id.) Finally, with respect to Fontaine’s due process
allegations, Defendants’ answer asserts that the lack of government action bars the
claim. (See id.)
The issue for the Court at present is whether there is subject matter jurisdiction
in this case, and also whether the complaint so patently fails to state a claim that it may
be dismissed sua sponte at this point in the litigation, despite the fact that there is no
pending motion to dismiss. See Kidwell v. FBI, 813 F. Supp. 2d 21, 27-28 (D.D.C.
2011) (citing Best v. Kelly, 39 F.3d 328, 331 (D.C. Cir. 1994)); see, e.g., Strunk v.
Obama, 880 F. Supp. 2d 1, 4-5 (D.D.C. 2011);; Perry v. Discover Bank, 514 F. Supp.
2d 94, 95 (D.D.C. 2007). As explained below, the Court concludes that Fontaine’s
complaint can, and must, be dismissed.
A. Dismissal For Lack Of Subject Matter Jurisdiction
As courts of limited jurisdiction, federal courts are required to assess their own
jurisdiction over any controversy they hear, even when the parties have not asserted any
jurisdictional question. See Noel Canning v. NLRB, 705 F.3d 490, 496 (D.C. Cir. 2013)
(citation omitted). For that reason, doubts about “subject matter jurisdiction may be
raised at any time, even by the court sua sponte.” Jerez v. Republic of Cuba, 777 F.
Supp. 2d 6, 15 (D.D.C. 2011) (citations omitted); see also Evans v. Suter, No. 09-5242,
2010 WL 1632902, at *1 (D.C. Cir. Apr. 2, 2010); G. Keys PC/Logis NP v. Pope, 630 F.
Supp. 2d 13, 15 (D.D.C. 2009) (“When it perceives that subject matter jurisdiction is in
question, the Court should address the issue sua sponte.” (citation omitted)).
Moreover, under Federal Rule of Civil Procedure 12(h)(3), “[i]f the court determines at
any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”
See also Hurt v. U.S. Ct. of Appeals for the D.C. Cir., 264 F. App’x 1, 1 (D.C. Cir.
2008) (“It was proper for the district court to analyze its own jurisdiction sua sponte
and dismiss the case for lack of jurisdiction.” (citation omitted)).
In assessing its jurisdiction over the claims presented pursuant to Rule 12(h)(3),
the court “must accept as true all of the factual allegations contained in the
complaint[,]” Banner Health v. Sebelius, 905 F. Supp. 2d 174, 182 (D.D.C. 2012)
(internal quotation marks omitted) (citing Brown v. District of Columbia, 514 F.3d
1279, 1283 (D.C. Cir. 2008), and “the allegations of the complaint should be construed
favorably to the pleader.” New York v. Microsoft Corp., 209 F. Supp. 2d 132, 138 n.6
(D.D.C. 2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on
other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)); see also Banner Health,
905 F. Supp. 2d at 182. In determining whether it has subject matter jurisdiction under
Rule 12(h)(3), the court may consider facts beyond the pleadings. See Land v. Dollar,
330 U.S. 731, 735 n.4 (1947).
Although pro se complaints must be liberally construed, see Haines v. Kerner,
404 U.S. 519, 520 (1972), United States v. Byfield, 391 F.3d 277, 281 (D.C. Cir. 2004),
this “benefit is not [ ] a license to ignore the Federal Rules of Civil Procedure.”
Sturdza v. United Arab Emirates, 658 F. Supp. 2d 135, 137 (D.D.C. 2009) (citation
omitted). Rather, even a pro se plaintiff must meet his burden of proving that the Court
has subject matter jurisdiction over the claims, including when the court raises the issue
sua sponte. See Hurt, 264 F. App’x at 1 (affirming the district court’s sua sponte
dismissal of pro se complaint for lack of subject matter jurisdiction); see also, e.g.,
Glaviano v. JP Morgan Chase Bank, N.A., No. 13-2049, 2013 WL 6823122, at *2
(D.D.C. Dec. 27, 2013) (dismissing pro se complaint for lack of subject matter
jurisdiction); Caldwell v. Kagan, 777 F. Supp. 2d 177, 178-79 (D.D.C. 2011) (sua
sponte dismissing pro se complaint for lack of subject matter jurisdiction under Rule
B. Dismissal For Failure To State A Claim
“Ordinarily, the sufficiency of a complaint is tested by a motion brought under
Rule 12(b)(6), which tests whether a plaintiff has properly stated a claim” upon which
relief can be granted. Bauer v. Marmara, 942 F. Supp. 2d 31, 37 (D.D.C. 2013) (citing
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). But if the complaint’s failure to state a
claim for the purpose of Rule 12(b)(6) “is patent, ‘it is practical and fully consistent
with plaintiffs’ rights and the efficient use of judicial resources’ for the court to act on
its own initiative and dismiss the action.” Bauer, 942 F. Supp. 2d at 37 (citation
omitted); see also Best, 39 F.3d at 331; Baker v. Dir., U.S. Parole Comm’n, 916 F.2d
725, 726 (D.C. Cir. 1990). Moreover, under Rule 8(a), a court is authorized to dismiss
a complaint that does not “contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility “is
not akin to a probability requirement, but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal quotation marks and
citations omitted). The plausibility standard is satisfied “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. (citation omitted).
In deciding whether to dismiss a complaint for failure to state a claim, the court
“must treat the complaint’s factual allegations—including mixed questions of law and
fact—as true and draw all reasonable inferences therefrom in the plaintiff’s favor.”
Epps v. U.S. Capitol Police Bd., 719 F. Supp. 2d 7, 13 (D.D.C. 2010) (citing Holy Land
Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003) and Browning
v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)). However, the court need not accept as
true inferences unsupported by the facts set out in the complaint or legal conclusions
cast as factual allegations. Browning, 292 F.3d at 242.
Notably, a pro se litigant’s complaint is generally held to less stringent standards
than formal pleadings that lawyers draft. See Haines, 404 U.S. at 520. But the
procedural rules must be followed nonetheless, and district courts have discretion to
dismiss a pro se plaintiff’s complaint sua sponte for non-compliance. See Kidwell, 813
F. Supp. 2d at 27-28 (citation omitted); see, e.g., Strunk, 880 F. Supp. 2d at 3; Perry,
514 F. Supp. 2d at 95. Courts may dismiss a complaint sua sponte where there is
simply “no factual or legal basis for alleged wrongdoing by defendants,” Perry, 514 F.
Supp. 2d at 95, such that it is patently obvious that the plaintiff cannot prevail on her
claims. See Best, 39 F.3d at 331; Baker, 916 F.2d at 726; see, e.g., Jessup v.
Progressive Funding, No. 13-0248, 2014 WL 1268809, at *7 (D.D.C. Mar. 28, 2014);
cf. Vahidallah v. Chase Bank, No. 13cv590, 2013 WL 3777181, at *1 (S.D. Cal. July
16, 2013) (sua sponte dismissing pro se mortgage and foreclosed-related complaint
pursuant to Rules 8 and 12(b)(6)); Sainte v. Suntrust Mortg., Inc., No. 10-cv-1637, 2010
WL 4639242, at *1 (N.D. Ga. Sept. 15, 2010) (recommending sua sponte dismissal
under Rules 8(a) and 12(b)(6)), adopted by 2010 WL 4638889.
A. Fontaine’s Challenge To Potential Future Foreclosure
As explained above, Fontaine’s complaint asks this Court to block a potential
future foreclosure that has not yet happened, and indeed, has not even seriously been
contemplated given the circumstances alleged here. But it is clear beyond cavil that
federal courts only have subject matter jurisdiction if there is a “Case” or
“Controvers[y]” to be decided, U.S. Const. art. III, § 2, and in the absence of any actual
or threatened injury, no such case or controversy exists. See Ravulapalli v. Napolitano,
840 F. Supp. 2d 200, 204 (D.D.C. 2012) (“The case or controversy requirement ‘means
that, throughout the litigation, the plaintiff must have suffered, or be threatened with,
an actual injury traceable to the defendant[.]” (quoting Spencer v. Kenma, 523 U.S. 1, 7
(1998))). This injury requirement is ordinarily conceptualized as a matter of “standing”
to bring a lawsuit in federal court; that is, in order to be eligible to have one’s case
heard in federal court, “[a] plaintiff must have suffered an injury in fact[,]” which is
defined as a real or threatened “invasion of a legally protected interest[.]” Silvious v.
Coca-Cola Co., 893 F. Supp. 2d 233, 236 (D.D.C. 2012) (internal quotation marks and
citation omitted); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(noting that, to have Article III standing, a plaintiff must suffer an actual injury). And
not any injury will do: the alleged injury must be “(a) concrete and particularized,
[and] (b) actual or imminent, not conjectural or hypothetical.” Silvious, 893 F. Supp.
2d at 236 (alteration in original) (citation omitted); see also Clapper v. Amnesty Int’l
USA, 133 S. Ct. 1138, 1147 (2013) (“To establish Article III standing, an injury must be
‘concrete, particularized, and actual or imminent[.]’” (quoting Monsanto Co. v.
Geertson Seed Farms, 130 S. Ct. 2743, 2752 (2010))). In other words, a challenge to a
mere “hypothetical injury[ ] does not state a case or controversy or establish a
plaintiff’s standing to sue, and hence must be dismissed for lack of subject matter
jurisdiction.” Fernebok v. District of Columbia, 534 F. Supp. 2d 25, 28 (D.D.C. 2008)
(citation omitted); see also Caldwell, 777 F. Supp. 2d at 179 (explaining that “[a]
district court [ ] lacks subject matter jurisdiction” under Rule 12(h)(3) “if [a] plaintiff
cannot establish Article III standing” (citation omitted)).
The instant complaint clearly misses the mark as far as injury allegations are
concerned. Far from establishing that Fontaine has already lost her house in
foreclosure, or even that foreclosure is a realistic possibility, the complaint alleges that
Fontaine is not delinquent on her mortgage payments. (Compl. ¶ 15.) Thus, the
complaint raises only the specter of potential foreclosure—i.e., that Fontaine could
“eventually be evicted from [her] home . . . if Defendants . . . conspire to move forward
with a foreclosure” sometime in the future. (Id. ¶ 17.) Such an eviction possibility is
purely hypothetical, which means that Fontaine has failed to allege the requisite injury
in fact for the purpose of establishing constitutional standing. See, e.g., Molina v.
FDIC, 870 F. Supp. 2d 123, 130-32 (D.D.C. 2012) (holding that plaintiff lacked
standing to sue loan servicer on the basis of allegedly discriminatory foreclosure
practices when the complaint did not allege that the plaintiff was delinquent on his
mortgage payments, or “that plaintiff lost his house in a foreclosure[,] or even that he
was funneled toward foreclosure” by the defendant, so there was no injury in fact);
Dicion v. Mann Mortg., LLC, No. 13-0533, 2014 WL 1366151, at *1, 4 (D. Haw. Apr.
4, 2014) (holding that plaintiff lacked standing to sue defendant mortgagors and loan
servicers to challenge foreclosure and assignment of the mortgage note because plaintiff
did not allege that the loan was in default or that any defendant had initiated foreclosure
proceedings, so there was no injury in fact). Consequently, this Court lacks subject
matter jurisdiction over Fontaine’s claim for injunctive relief and that claim must be
dismissed. See Fed. R. Civ. P. 12(h)(3).
B. Fontaine’s Challenge To Defendants’ Securitization Of The Mortgage
Note And Alleged Violation Of The Consent Order
The remaining allegations in the complaint are focused on PHH’s assignment of
the Note to Chase and on a Consent Judgment that was entered in the matter of United
States v. Bank of America Corp., No. 12-0361, ECF No. 14 (D.D.C. Apr. 4, 2012). To
the extent that Fontaine’s claim that she is entitled to an injunction, damages, and
declaratory relief rests on these allegations, her complaint must be dismissed for failure
to state a plausible claim for relief. 3
With respect to the Note, Fontaine appears to make two separate assertions:
first, that the assignment was invalid because PHH did not transfer physical possession
It seems to be the practice in this circuit and elsewhere that a court may sua sponte dismiss a
complaint under Federal Rule of Civil Procedure 12(b)(6) where, as here, it is patently obvious that the
complaint fails to state a claim. See, e.g., Baker v. Dir., U.S. Parole Comm’n, 916 F.2d 725, 726 (D.C.
Cir. 1990); Jefferies v. District of Columbia, 916 F. Supp. 2d 42, 46-47 (D.D.C. 2013); see also Adams
v. Eureka Fire Prot. Dist., 352 F. App’x 137, 139 (8th Cir. 2009). However, Rule 8(a)(2) appears to be
the procedural rule that more readily authorizes sua sponte action in this regard, insofar as that rule
requires a plaintiff to provide “a short and plain statement of the claim showing that the pleader is
entitled to relief” and thereby authorizes a court to evaluate the legal sufficiency of the pleading, with
or without a motion to dismiss. See Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (the district
court may sua sponte dismiss a complaint under Rule 8(a) (citation omitted)); Tanner v. Neal, 232 F.
App’x 924, 924-25 (11th Cir. 2007) (same). In this regard, both Rule 12(b)(6) and Rule 8(a)(2)
mandate that the complaint state a plausible claim—i.e., one upon which relief can be granted—or be
dismissed, and so interpreted, either rule leads to the same result. See Vahidallah v. Chase Bank, No.
13cv590, 2013 WL 3777181, at *1 (S.D. Cal. July 16, 2013); Sainte v. Suntrust Mortg., Inc., No. 10-cv1637, 2010 WL 4639242, at *1 (N.D. Ga. Sept. 15, 2010), adopted by 2010 WL 4638889.
of the Note; and second, that securitization was legally improper. Fontaine’s first
argument—that the law requires one who claims to be a mortgage holder to take
physical possession of the mortgage note and to produce the Note in order to prove his
interest in the property (see, e.g., Compl. ¶ 8 (complaining that there “was no evidence”
that Chase “was in possession of the Note or security instrument”))—fails as a matter of
law. Notably, in Florida, where Fontaine’s property is located, the law does not require
the physical possession of the original note in order to proceed to foreclosure. See Fla.
Stat. §§ 689, 701-702 (2008); see also Lawyers Title Ins. Co., Inc. v. Novastar Mortg.,
Inc., 862 So.2d 793, 798 (Fla. Dist. Ct. App. 2003). Thus, even without physical
possession of the note, “[a]n assignee of a mortgage and note” is “the real party in
interest, holds legal title to the mortgage and the note, and is the property party to . . .
foreclose[.]” Lawyers Title Ins. Co., 862 So.2d at 798 (citation omitted). Interpreting
similar state mortgage and foreclosure statutes, other courts have rejected the principle
that physical possession is required to create a right to foreclose. See, e.g., Busby v.
Capital One, N.A., 932 F. Supp. 2d 114, 123 (D.D.C. 2013) (dismissing the plaintiff’s
claim, inter alia, that defendant had no right to foreclose on her property because it
“d[id] not have physical possession of the note”); Lackey v. Wells Fargo Bank, N.A.,
No. 13-2217, 2014 WL 1356866, at *3 (8th Cir. Apr. 4, 2014) (noting that the Eighth
Circuit and “courts nationally” have “consistently rejected” the theory that an assignee
or other successor must have physical possession of the note in order to foreclose
(collecting cases)); Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 255 (5th
Cir. 2013) (rejecting the “split-the-note theory” and finding that an assignee of a deed
of trust has power to foreclose without actual physical possession of the note); Preston
v. Seterus, Inc., 931 F. Supp. 2d 743, 757 (N.D. Tex. 2013) (rejecting the argument that
“an assignee of a deed of trust lacks power to foreclose when the deed of trust is
assigned without the note” because under the relevant state law a “mortgage on real
estate follows the [ ] note it secures”)); Garcia v. HomeEQ Servicing Corp., No. 090374, 2009 WL 2579057, at *2-3 (E.D. Cal. Aug. 19, 2009) (noting that “[p]hysical
possession and legal status as holder of a note are distinct concepts” and that “[t]here is
no requirement in California that the holder of a note be in actual physical possession of
it in order to foreclose.” (citation omitted)).
Fontaine’s related argument—that, when the initial holder of the Note securitized
it, that act separated the Note from the Deed of Trust in a manner that somehow altered
the property interest (see Compl. ¶ 9 (challenging the “confusion and uncertainty about
who the Note-holder” is because of “the securitization process”); id. ¶ 13 (contending
that “the Note and Mortgage cannot be split” and that splitting results in fraudulent
assignment); see also id. ¶¶ 14, 17, 25, 42, 48, 57)—fares no better. This Court has
already joined every other court that has considered this issue in rejecting this specious
argument. See, e.g., Jessup, 2014 WL 1268809, at *7 (noting that “[c]ourts across the
country have already uniformly rejected [the] argument” that securitization destroys the
note, stripping the holder of ability to execute an assignment (citations omitted));
Flores v. GMAC Mortg., LLC, No. 12cv794, 2013 WL 2049388, at*2 (N.D. Cal. May
14, 2013); Boyter v. Wells Fargo Bank, N.A., No. 11cv03943, 2012 WL 1144281, at *5
(N.D. Cal. Apr. 4, 2012); Velez v. The Bank of N.Y. Mellon, No. 10cv468, 2011 WL
572523, at *4 (D. Haw. Feb. 15, 2011); Lane v. Vitek Real Estate Indus. Grp., 713 F.
Supp. 2d 1092, 1099 (E.D. Cal. 2010); Upperman v. Deutsche Bank Nat’l Trust Co.,
No. 10cv149, 2010 WL 1610414, at *3 (E.D. Va. Apr. 16, 2010); Chavez v. Cal.
Reconveyance Co., No. 10cv325, 2010 WL 2545006, at *2 (D. Nev. June 18, 2010).
Thus, to the extent that Fontaine’s due process and emotional distress claims rely on the
fact that Defendants may not have physical possession of the original Note documents,
or the contention that securitization invalidated the Note, these claims must be
dismissed because they do not state a plausible basis for relief under existing law. See
Busby, 932 F. Supp. 2d 114; Preston, 931 F. Supp. 2d at 757; Garcia, 2009 WL
2579057, at *2-3.
Similarly, there is no legal basis for Fontaine to seek relief in this matter based
on a contention that Defendant Chase is in violation of the Consent Judgment entered in
the Bank of America case. Other courts have held—and this Court agrees—that “by its
terms, this Consent Judgment is not enforceable by individual third-party beneficiaries”
because it “specifically states that enforcement actions may be brought by a ‘Party to
this Consent Judgment or the Monitoring Committee.’” Conant v. Wells Fargo Bank,
N.A., No. 13-572, 2014 WL 575758, at *9 (D.D.C. Feb. 14, 2014) (citation omitted).
(See also Consent J., Ex. 2 to Compl., ECF No. 1-2.) In response to similar actions that
individual homeowners have filed seeking to enforce the terms of the Consent
Judgment, judges in this very district have concluded that individual borrowers, such as
Fontaine, are neither parties to the Consent Judgment nor a member of the monitoring
committee, and therefore are not in a position to enforce any obligation imposed on the
parties to that judgment. See, e.g., Conant, 2014 WL 575758, at *9 (citations omitted);
McCain v. Bank of America, No. 13cv1418, 2014 WL 334196, at *7 (D.D.C. Jan. 30,
2014); Glaviano, 2013 WL 6823122, at *1 n.1; Ghaffari v. Wells Fargo Bank, N.A., No.
13-115, 2013 WL 6070364, at *4 (D.D.C. Nov. 19, 2013). Just as with the issue of the
effect of securitization, there is a robust body of precedent that resoundingly rejects the
contention that the Consent Judgment has application in an individual homeowner
lawsuit such as the one Fontaine brings here, and this Court sees no reason to depart
from the reasoned judgment and collective wisdom of the many prior judges in this
district and elsewhere who have considered whether an individual mortgagor, like
Fontaine, has a cause of action to challenge the Note holder’s conduct under that
Judgment. Therefore, the complaint’s allegations related to violation of the Consent
Judgment do not give rise to any plausible claim for relief on that basis.
For the foregoing reasons, this Court has no jurisdiction to enjoin Defendants
from engaging in a hypothetical future foreclosure; therefore, the complaint’s claim for
injunctive relief must be dismissed under Rule 12(h)(3). Moreover, it is patently
obvious that Fontaine cannot prevail on any claim that is based on an allegation that
securitization of the Note invalidated that interest or that Defendants were legally
required to have taken physical possession of the Note, nor is Fontaine legally entitled
to sue Defendants to enforce the terms of a Consent Judgment that different parties
entered into in an unrelated case. Accordingly, pursuant to Rules 8(a) and 12(b)(6), and
as stated in the accompanying order, Fontaine’s complaint is DISMISSED in its
entirety. See Baker, 916 F.2d at 726-27 (affirming district court’s sua sponte dismissal
of complaint where “plaintiff has not advanced a shred of a valid claim” and noting that
allowing the case to proceed “can only lead to a waste of judicial resources”).
DATE: May 16, 2014
Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?