Merone v. Select Portofolio Servicing, Inc. et al

Filing 27

OPINION AND ORDER granting in part and denying in part 26 defendants' Motion to Dismiss. Plaintiff may file a second amended complaint within fourteen days of the date of this Opinion and Order. If no such amended complaint is filed, the case will be closed without further notice. See Opinion and Order for details. Signed by Judge John E. Steele on 3/4/2016. (AMB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PIERRE LOUIS MERONE,
Plaintiff,
v.

Case No: 2:15-cv-202-FtM-29CM

SELECT PORTOFOLIO SERVICING,
INC. and THE BANK OF NEW YORK
MELLON,
Defendants.

OPINION AND ORDER
This matter comes before the Court on review of defendants’
Motion to Dismiss Amended Complaint (Doc. #26) filed on July 13,
2015.

Plaintiff has not filed a response and the time to do so

has expired.

For the reasons stated below, the motion is due to

be granted.
I.
Because plaintiff is proceeding pro se, his pleadings are
held to a less stringent standard than pleadings drafted by an
attorney and will be liberally construed.
F.3d 1157, 1160 (11th Cir. 2003).
Amended

Complaint,

plaintiff

Hughes v. Lott, 350

According to the two count

Pierre

Louis

Merone

(Merone

or

plaintiff) executed a mortgage for the purchase of property located
at 5135 40th Street NE, Naples Florida (Property) from Countrywide
Home Loans, Inc.

(Doc. #7, ¶ 7.)

On or about June 2008, Merone

defaulted on his loan obligation and engaged in a loan modification
request.

(Id. ¶¶ 8-9.)

Defendant Select Portfolio Servicing,

Inc. (SPS) acquired the mortgage (Id. ¶¶ 10-11.)
On November 20, 2014, the Property was sold for $274,200.00.
(Id. ¶ 12.)

On November 21, 2014, plaintiff’s request for loan

modification was denied.

(Id. ¶ 13.)

Plaintiff was not aware of

the sale of the Property or the denial of the loan modification
until after they occurred.

(Id. ¶ 14.)

Plaintiff alleges that in order to foreclose, defendant, The
Bank of New York Mellon f/k/a The Bank of New York, as Trustee for
the Certificate Holders CWALT, Inc., Alterative Loan Trust 2006OA3 Mortgage Pass-Through Certificates Series 2006 (The Bank of
New York) used an unendorsed note and an unsupported allegation
that it had the right to foreclose.

(Id. ¶ 15.)

Plaintiff alleges

a violation of the duty of good faith and fair dealing because he
was led to believe that SPS had standing to process a loan
modification.

(Id. ¶ 16.)

Merone alleges he has suffered damages

of legal expenses, eviction, emotional stress, pain and suffering,
and mental anguish.
quiet

title,

(Id. ¶ 17.)

punitive

and

compensatory

interest, and all taxable costs.
Defendants

seek

to

As relief, plaintiff seeks to
damages,

prejudgment

(Id.)

dismiss

the

Amended

Complaint

with

prejudice asserting the claims are barred by the Rooker-Feldman
Doctrine.

(Doc. #26.)

Specifically, defendants allege that

2

plaintiff is attempting to relitigate issues that were already
adjudicated by the Circuit Court in the foreclosure action, or
that should have been raised in the foreclosure action.

(Id.)

Defendants also assert that the Amended Complaint fails to state
a claim for relief.

(Id.)
II.

As

an

initial

matter,

defendants

ask

the

Court

to

take

judicial notice of Case No. 09-CA-1102, the foreclosure action
from state court and, specifically, the documents attached to their
motion. 1

A district court may consider extrinsic evidence in

ruling on a motion to dismiss “if it is (1) central to the
plaintiff's claim, and (2) its authenticity is not challenged.”
SFM Holdings, Ltd. v. Banc of Amer. Secs., LLC, 600 F.3d 1334,
1337 (11th Cir. 2010); see also Trustmark Ins. Co. v. ESLU, Inc.,

1

The docket from the Foreclosure Action (Doc. #26-2); the
Foreclosure Complaint (Doc. #26-3); the Answer (Doc. #26-4); the
Motion for Summary Final Judgment and Attorney’s Fees (Doc. #265); the Notice of Hearing (Doc. #26-6);
the record of Hearing
(Doc. #26-7); the Summary Final Judgment of Foreclosure (Doc. #268); the Notice of Sale dated July 29, 2010 (Doc. #26-9); the Order
on Plaintiff’s Motion to Reschedule Sale date October 27, 2014
(Doc. #26-10); the Re-Notice of Sale dated October 28, 2014 (Doc.
#26-11); the confirmation of scheduled publication from Business
Observer Legals (Doc. #26-12); Proof of Publication (Doc. #26-13);
the Certificate of Sale (Doc. #26-14); the Certificate of Title
(Doc. #26-15); Motion for Writ of Possession (Doc. #26-16); a copy
of the Notice to Vacate (Doc. #26-17); Amended Motion for Writ of
Possession and Certification (Doc. #26-18); Order Directing Clerk
to Issue a Writ of Possession;
(Doc. #26-19); the Writ of
Possession (Doc. #26-20); Return of Service for Writ of Possession
(Doc. #26-21); and Pierre Merone’s Emergency Motion to Stay
Eviction (Doc. #26-22).

3

299 F.3d 1265, 1267–68 (11th Cir. 2002).

The public records

reflecting the state court foreclosure proceeding comply with both
of these requirements.

Thus, defendants’ motion to dismiss need

not be converted to a motion for summary judgment.

Harper v.

Lawrence County, 592 F.3d 1227, 1232 (11th Cir. 2010); Jones v.
Auto. Ins. Co. of Hartford, 917 F.2d 1528, 1531–32 (11th Cir.
1990).
court

Moreover, the documents submitted pertaining to the state
foreclosure

proceeding

are

“central” to a plaintiff's claims.

public

records

which

are

Horne v. Potter, 392 F. App’x

800, 802 (11th Cir. 2010).

Additionally, “a court may take notice

of

.

another

court's

order

.

.

for

the

limited

purpose

of

recognizing the ‘judicial act’ that the order represents or the
subject matter of the litigation.”

United States v. Jones, 29

F.3d 1549, 1553 (11th Cir. 1994).

Therefore, the Court takes

judicial notice of those documents that were filed in the state
Court foreclosure proceedings as they are central to plaintiff’s
claims.
III.
Jurisdiction in this case is premised upon diversity of
citizenship, which has not been challenged.

The difficulty with

the Amended Complaint is that even when the Court reads its
allegations with the deference due a pro se litigant and with the
benefit of the judicially noticed documents, there is still no
cause of action which is plausibly set forth.

4

While it may be

that the Court should abstain from the exercise of its jurisdiction
under the Rooker-Feldman doctrine 2, the Court simply cannot tell
based upon the lack of any plausible causes of action.

The Court

will dismiss the Amended Complaint without prejudice, and give
plaintiff a final opportunity to file a second amended complaint
setting forth plausible causes of action.
As plaintiff is currently proceeding pro se, that is, without
being

represented

opportunity

to

by

an

advise

attorney,
plaintiff

the
of

Court

some

will

of

the

take

this

important

responsibilities and obligations that he bears as a pro se party,
including some requirements of the Local Rules of this Court 3
(“Local Rules”) and the Federal Rules of Civil Procedure 4 (“Fed.
R. Civ. P.”).
In the body of the Second Amended Complaint, plaintiff should
clearly set forth the violations and claims he seeks to assert,
and describe how each named defendant is involved in each alleged
claim.
for

the

Plaintiff must provide support in the statement of facts
claimed

violations.

More

than

conclusory

and

vague

2

Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C. Court of
Appeals v. Feldman, 460 U.S. 462 (1983).
3

The Local Rules
www.flmd.uscourts.gov.

are

accessible

4

on

the

internet

at

A copy of the current Federal Rules of Civil Procedure can
be obtained at law libraries, book stores, and from other widely
available sources.

5

allegations are required to state a cause of action.

Plaintiff

must state what rights under the Constitution, laws, or treaties
of the United States have been violated.

It is improper for

plaintiff to merely list constitutional rights or federal rights
and/or statutes.

Plaintiff must provide factual support for the

claimed violations.
Plaintiff is reminded that his pro se status does not free
him from the requirements of the Federal Rules of Civil Procedure,
which plaintiff is directed to consult before filing additional
material.

While the Court has set forth some obligations and

requirements in this Order, this Order does not set forth all of
those requirements and should not be relied upon as limiting
plaintiff's duties and obligations in litigating this case.

The

Court directs plaintiff to review the “Proceeding Without a Lawyer”
section of this Court’s website at www.flmd.uscourts.gov.
Accordingly, it is now
ORDERED:
1.

Defendants’ Motion to Dismiss Amended Complaint (Doc.

#26) is GRANTED in part and DENIED in part.

The motion is granted

to the extent the Amended Complaint is dismissed without prejudice
and otherwise denied.
2.

Plaintiff may file a second amended complaint within

FOURTEEN (14) DAYS of the date of this Opinion and Order.

6

If no

such amended complaint is filed, the case will be closed without
further notice.
DONE AND ORDERED at Fort Myers, Florida, this __4th__ day of
March, 2016.

Copies: Parties of record

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