Demeritte v. Novastar Mortgage et al

Filing 6

ORDER DISMISSING CASE Closing Case. Motions terminated: 3 MOTION to Appoint Counsel filed by Jennifer Ann Demeritte. Signed by Judge Marcia G. Cooke on 10/30/2014. (tm) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 14-62281-Civ-COOKE/TORRES
JENNIFER DEMERITTE, a living woman
Non-corporate entity, Naked Owner and Bailor,
(tertius interveniens) and General Executor
for the Estate Jennifer Ann Demeritte,
Plaintiff,
vs.
NOVASTAR MORTGAGE, INC.; DEUTSCHE BANK
NATIONAL TRUST COMPANY as Trustee for Securitized
Trust Novastar Mortgage Funding Trust, Series 2007-1;
NOVASTAR MORTGAGE, INC.; NOVASTAR
MORTGAGE FUNDING CORPORATION; NOVASTAR
MORTGAGE, INC.; MORTGAGE ELECTRONIC
REGISTRATION SYSTEM a/k/a MERS and
DOES 1 THROUGH 100, INCLUSIVE,
Defendants.
_____________________________________________________/
ORDER DISMISSING CASE
“We also have held that ‘[a] district court may conclude a case has little or no chance
of success and dismiss the complaint before service of process when it determines from the
face of the complaint that the factual allegations are ‘clearly baseless' or that the legal
theories are ‘indisputably meritless.’” Davis v. Kvalheim, 261 F. App'x 231, 234-35 (11th Cir.
2008) (quoting Carroll v. Gross, 984 F.2d 392, 393 (11th Cir.1993)). Plaintiff Jennifer Ann
Demeritte’s suit to rescind the foreclosure of her home is “indisputably meritless” given the
applicability of the Rooker-Feldman Doctrine, and is therefore dismissed.
I. BACKGROUND
Plaintiff Jennifer Demeritte, proceeding pro se, brings this action against several
defendants seeking actual damages, statutory damages, punitive damages, litigation costs,
and injunctive relief arising from the alleged wrongful foreclosure of her property located at

1251 SW 189th Avenue, Pembroke Pines, Florida 330291 (“Subject Property”) on grounds
that the Defendants lack standing to foreclose Subject Property. See generally Compl., ECF
No. 1.
On or about February 28, 2007, Plaintiff obtained a $620,000.00 mortgage loan from
Defendant Novastar secured by a first mortgage/trust deed on the Subject Property. Compl.
¶ 35. It is unclear based upon Plaintiff’s causes of action whether the Subject Property has
been foreclosed upon, or whether foreclosure proceedings against the Subject Property have
begun; the latter seems more likely. Plaintiff avers that
Defendants, and each of them, through the actions alleged above, have or
claim the right to illegally commence foreclosure under the Note on the
Property via a foreclosure action supported by false or fraudulent documents.
Said unlawful foreclosure action has caused and continues to cause Plaintiff’s
great and irreparable injury in that real property is unique.
...
Defendants, and each of them, disparaged Plaintiff s exclusive valid title by
and through the preparing, posting, publishing, and recording of the
documents previously described herein, including, but not limited to, the
Notice of Default, Notice of Trustee’s Sale, Trustee’s Deed, and the
documents evidencing the commencment [sic] of judicial foreclosure by a
party who does not possess that right.
Compl. ¶¶ 78, 110.
II. LEGAL STANDARD
A complaint “must contain . . . a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, “[t]o survive a motion to
dismiss, a complaint must 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); see
also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (noting that a plaintiff must
articulate “enough facts to state a claim to relief that is plausible on its face.”). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. at 678. A complaint’s factual allegations must be enough to raise a right to
relief above speculative level.

Id.

Detailed factual allegations are not required, but a

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pleading “that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a
cause of action will not do.’” Id. (quoting Bell Atl. Corp v. Twombly, 550 U.S. at 555).
A court need not have to accept legal conclusions in the complaint as true. See
Ashcroft v. Iqbal, 556 U.S. at 678. “While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.”

Id. at 679.

A “[O]nly a

complaint that states a plausible claim for relief survives a motion to dismiss.” Id. When a
plaintiff pleads facts that are merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to relief. See id. at 678.
The purpose of a motion to dismiss is to test the facial sufficiency of a complaint. See
Hermoza v. Aroma Restaurant, LLC, No. 11-23026-CIV, 2012 WL 273086, at *1 (S.D. Fla.
Jan. 30, 2012). Therefore, a court’s consideration when ruling on a motion to dismiss is
limited to the complaint and any incorporated exhibits. See Grossman v. Nationsbank, N.A.,
225 F.3d 1228, 1231 (11th Cir. 2000).
III.

DISCUSSION

Liberally construing Plaintiff’s claim2, Plaintiff is asking this Court to invalidate
and/or interfere with the underlying foreclosure procedures by ruling that the state court
foreclosure judgment – if there is one – is void or that the procedures should be enjoined.
However, this Court lacks subject matter jurisdiction to do so, as Plaintiff seeks a de facto
appeal of a previously litigated state court matter. The Rooker-Feldman doctrine, which
provides that “United States district courts do not have subject matter jurisdiction to review
the judgments of a state court,”
 Bosdorf v. Beach, 79 F.Supp.2d 1337, 1339 (S.D. Fla. 1999)
(quoting District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983)), bars this
Court from hearing Plaintiff’s claims since she is essentially seeking appellate review of the
underlying foreclosure proceedings, which are pending in state court. Rooker v. Fidelity Trust
Co., 263 U.S. 413 (1923); Feldman, 460 U.S. 462 (1983). The Rooker-Feldman doctrine applies

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A pro se litigant’s pleadings must be construed more liberally than those pleadings drafted by
attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Powell v. Lennon, 914 F.2d 1459,
1463 (11th Cir. 1990) (“In the case of a pro se action,…the court should construe the complaint more
liberally than it would formal pleadings drafted by lawyers”). However, “this lenience does not give
a court license to serve as de facto counsel for a party…or to rewrite an otherwise deficient pleading
in order to sustain an action.” GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369
(11th Cir. 1998) (internal citations omitted).

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to “cases brought by state-court losers complaining of injuries caused by state-court
judgments rendered before the federal district court proceedings commenced and inviting
district court review and rejection of those judgments.” Exxon Mobile Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 281 (2005). The Rooker-Feldman doctrine further affirms that no
federal courts, other than the United States Supreme Court, have the authority to review
final judgments of state courts. Goodman v. Sipos, 259 F.3d 1327, 1332 (11th Cir. 2001).
The Rooker-Feldman doctrine encompasses claims, such as Plaintiff’s, that are
“inextricably intertwined” with a state court judgment. Id. Plaintiff is attempting to a have
this Court review and resolve issues that are the subject of a pending state court proceeding.

Plaintiff alleges that Defendants previously commenced the underlying foreclosure
proceedings in Florida state court, but Defendants have not, and cannot, demonstrate they
own the promissory note and mortgage on the Subject Property or otherwise establish
standing to maintain the foreclosure. See generally Compl. Therefore, in asking this Court to
enjoin the foreclosure proceedings against the Subject Property and declare that the
Defendants lack standing to enforce the promissory note and mortgage, Plaintiff is seeking
the resolution of an issue – namely standing – that the state court will necessarily address
and resolve in the underlying foreclosure proceeding. See McLean v. JP Morgan Chase Bank,
N.A., 79 So. 3d 170, 173 (Fla. Dist. Ct. App. 2012) (noting that “[a] crucial element in any
mortgage foreclosure proceeding is that the party seeking to foreclose must demonstrate that
it has standing to foreclose”).
Even if a foreclosure judgment has not been issued, this Court must nevertheless
abstain from entertaining Plaintiff’s claims based upon the Colorado River abstention
doctrine, which addresses the circumstances in which federal courts should abstain from
exercising their jurisdiction because a parallel lawsuit is proceeding in one or more state
courts. See Beepot v. J.P. Morgan Chase Nat. Corporate Servs., Inc., No. 3:10-CV-423-J-34TEM,
2011 WL 4529604, at *8 (M.D. Fla. Sept. 30, 2011) (finding that “Colorado River
abstention is entirely appropriate in this case,” where a loan that is the subject of a
foreclosure action between the same parties in state court is also before the federal court).

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IV. CONCLUSION
For the aforementioned reasons, Plaintiff’s Complaint (ECF No. 1) is DISMISSED.
Plaintiff should litigate her claims in the underlying foreclosure proceeding. The Clerk of
Court shall CLOSE this case. All pending motions, if any, are DENIED as moot.
DONE and ORDERED in chambers, at Miami, Florida, this 30th day of October
2014.

Copies furnished to:
Edwin G. Torres, U.S. Magistrate Judge
Counsel of record

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