RESTIVO v. BANK OF AMERICA NA

Filing 9

ORDER granting 5 Motion to Dismiss for Failure to State a Claim. If Plaintiff persists in filing meritless law suits against this same Defendant, the Court will consider imposing sanctions. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 3/10/19 (lap)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
TINA RESTIVO,

:
:
Plaintiff,
:
v.
:
:
BANK OF AMERICA NA,
:
a/k/a BANK OF AMERICA
:
CORPORATION,
:
:
Defendant.
:
___________________________________ :

No. 3:18-CV-68 (CAR)

ORDER ON DEFENDANT’S MOTION TO DISMISS
On May 22, 2018, pro se Plaintiff Tina Restivo filed suit against Defendant Bank of
America, NA (“BANA”) allegedly also known as Bank of America Corporation (“BAC”), 1
seeking to have a state court judgment overturned and asserting a claim under the Truth
in Lending Act (“TILA”), 15 U.S.C. § 1601, et seq. Currently before the Court is BANA’s
Motion to Dismiss Plaintiff’s Complaint. Having considered the Motion, pleadings, and
applicable law, Defendant’s Motion to Dismiss [Doc. 5] is GRANTED.
BACKGROUND

Defendant contends that Bank of America, NA and Bank of America Corporation are in fact two separate
entities that cannot be combined for convenience of service.

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This case arises out of BANA’s 2012 foreclosure of Plaintiff’s property. Plaintiff is
a well-known litigant in this court. Indeed, this is the fourth case between BANA and
Plaintiff to come before the Court.
In 2009, Plaintiff obtained a loan secured by a security deed on her property at
1020 Bradley Gin Lane, Monroe, Georgia 30656. Plaintiff defaulted on her loan, and
BANA became the owner of the property in a non-judicial foreclosure sale in 2012. When
Plaintiff failed to relinquish possession, BANA filed a dispossessory action against
Plaintiff in the Magistrate Court of Walton County. Plaintiff removed that action to this
Court, Bank of America, N.A. v. Restivo, 3:12‐CV‐140(CAR), but the Court remanded the
case for lack of jurisdiction on March 5, 2013. On March 18, 2013, the Magistrate Court
of Walton County issued BANA a Writ of Possession.
On October 18, 2013, Plaintiff filed a new cause of action against “Bank of America
Corporation also known as Bank of America, NA,” 2 in the Superior Court of Walton
County attacking the dispossessory action and alleging wrongful foreclosure. 3 All
properly named defendants removed that case to this Court, Restivo v. Bank of America
Corporation, 3:13‐CV‐128(CAR), based upon diversity jurisdiction. The defendants
subsequently filed a motion to dismiss, and on June 9, 2014, the Court dismissed the case

2
3

Plaintiff sued BANA and BAC in addition to other defendants.
See Def.’s Notice of Removal, 3:13-cv-128, [Ex. A, Doc. 1-2, p. 3].
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for failure to state a claim upon which relief may be granted. The Eleventh Circuit
affirmed the dismissal.
On June 15, 2015, Plaintiff filed a third action against BANA in the Superior Court
of Walton County alleging the dispossessory action was void. BANA again removed the
case to this Court, Restivo v. Bank of America, N.A., 3:15‐CV‐72(CAR), but the Court
remanded back it to state court for lack of subject matter jurisdiction under the RookerFeldman doctrine. On December 26, 2015, the Superior Court of Walton County issued a
Final Judgment and Writ of Possession dismissing Plaintiff’s claims. Plaintiff has now
filed this action claiming that BANA’s alleged fraudulent TILA violations void the state
court’s judgment, and Defendant has filed this Motion to Dismiss Plaintiff’s Complaint
for multiple reasons. 4
LEGAL STANDARD
On a motion to dismiss, the Court must construe the complaint in the light most
favorable to the plaintiff and accept as true all well-pled facts in a plaintiff’s complaint. 5
To avoid dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), “a complaint

BANA’s main argument is that Plaintiff’s Complaint should be dismissed for insufficient service of
process pursuant to Fed. R. Civ. P. 4(m) and 12(b)(5). Ordinarily, the Court would give a pro se plaintiff an
extension of time to perfect service since “Rule 4(m) grants discretion to the district court to extend the time
for service of process even in the absence of a showing of good cause.” Horenkamp v. Van Winkle And Co.,
402 F.3d 1129, 1132 (11th Cir. 2005). Here, however, Plaintiff was put on notice that BAC and BANA are
separate corporations in 2013, see Def.’s Notice of Removal, 3:13-cv-128, [Doc. 1, p. 1], and more
importantly, perfecting service of process would be futile, because Plaintiff’s claims are barred by the
Rooker-Feldman doctrine, res judicata, and the statute of limitations, as explained below.
5 Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009).
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must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” 6 A claim is plausible where the plaintiff alleges factual content
that “allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” 7 The plausibility standard requires that a plaintiff allege sufficient
facts “to raise a reasonable expectation that discovery will reveal evidence” that supports
a plaintiff’s claims. 8 Furthermore, “a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted by lawyers.” 9
DISCUSSION
Although Plaintiff’s Complaint is less than clear, it essentially raises two claims:
(1) Defendant violated TILA at the consummation of Plaintiff’s loan; and (2) because of
Defendant’s fraudulent TILA violations, this Court must overturn the Superior Court of
Walton County’s Final Judgment and Writ of Possession pursuant Federal Rule of Civil
Procedure 60. Both of Plaintiff’s claims are barred and must be dismissed.
I.

Relief from State Court Judgment Pursuant to Rule 60(b)

This is Plaintiff’s fourth case against BANA arising out of the 2012 foreclosure of
her property nearly seven years ago. Here, Plaintiff seeks to have this Court invalidate
the Superior Court of Walton County’s Final Judgment and Writ of Possession due to

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Id.
8 Twombly., 550 U.S. at 556.
9 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and quotations omitted).
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fraud. Regardless of the merits (or lack thereof) of Plaintiff’s allegations, this Court lacks
jurisdiction to grant Plaintiff’s request to overturn the state court’s judgment. 10
The Rooker–Feldman doctrine “bars a state court loser from later enlisting a federal
district court to reverse [her] state court loss.” 11 Rooker-Feldman applies when “(1) the
plaintiff was the loser in state court, (2) the plaintiff is complaining of an injury caused
by the state court's judgment, (3) the state court's judgment was ‘rendered before the
district court proceedings commenced,’ and (4) the plaintiff is ‘inviting district court
review and rejection’ of the state court's judgment.” 12 Finally, the doctrine only applies to
claims that are “inextricably intertwined” with the state court judgment. “A claim is
‘inextricably intertwined’ with the state court judgment ‘if it would effectively nullify the
state court judgment, or it succeeds only to the extent that the state court wrongly decided
the issues.’” 13
The elements of Rooker-Feldman are clearly satisfied here. As evidenced by the
Walton County Superior Court’s Final Judgment and Writ of Possession which Plaintiff

Although BANA does not raise this issue, the Court “must inquire sua sponte into the issue whenever it
appears that jurisdiction may be lacking.” Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261 (11th Cir. 2000).
“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
action.” Fed. R. Civ. P. 12(h)(3). See also Asker v. Seminole Tribe of Fla., Inc., 730 F. App'x 751, 754 (11th Cir.
2018) (“We needn’t determine whether appellants had adequate notice of the district court’s intent to
dismiss because, as explained below, we conclude that the district court lacked subject-matter jurisdiction
to entertain appellants’ case.”).
11 Scott v. Frankel, 606 F. App'x 529, 531 (11th Cir. 2015) (“the only federal court empowered to review final
state court judgments is the Supreme Court of the United States”).
12 Id. See also Nicholson v. Shafe, 558 F.3d 1266, 1274 (11th Cir. 2009).
13 Id. (quoting Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009).
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attached to her Complaint, Plaintiff lost in state court. The Superior Court entered its
Final Judgment on December 16, 2015, awarding BANA possession of Plaintiff’s former
property. In claiming the Judgment is void due to fraud, Plaintiff is clearly asking the
Court to review and reject the Final Judgment. In her Complaint, Plaintiff blatantly
requests that this Court nullify the Superior Court’s Final Judgment. Thus, the Court
lacks jurisdiction to review the Superior Court of Walton County’s Final Judgment, and
Plaintiff’s claim for relief from judgment under Rule 60 is DISMISSED without
prejudice. 14
II.

TILA Violations

Plaintiff’s TILA claims are barred both by res judicata and TILA’s statute of
limitations. Plaintiff alleges that at the consummation of her loan on September 3, 2009,
“the actual true lender funding the mortgage loan contract” was “fraudulently
concealed,” and this fraudulent concealment violated TILA. 15 Clearly aware that res
judicata and TILA’s statute of limitation pose problems for these claims, Plaintiff alleges
that equitable tolling should be applied to “effectuate the congressional intent of TILA.” 16
Plaintiff’s equitable tolling allegations, however, fail to save her claims.

While some circuits have recognized an extrinsic-fraud exception to Rooker–Feldman, the Eleventh Circuit
has not. See id. at 532 n.4.
15 Id. at 4-5.
16 Id. at 3, 7.
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First, Plaintiff’s TILA claims are barred by res judicata. 17 “Under res judicata, also
known as claim preclusion, a final judgment on the merits bars the parties to a prior action
from re-litigating a cause of action that was or could have been raised in that action.” 18
Res judicata applies if the following four elements are met: “(1) the prior decision must
have been rendered by a court of competent jurisdiction; (2) there must have been a final
judgment on the merits; (3) both cases must involve the same parties or their privies; and
(4) both cases must involve the same causes of action.” 19 “The court next determines
whether the claim in the new suit was or could have been raised in the prior action; if the
answer is yes, res judicata applies.” 20
All elements of res judicata are satisfied. This Court—a court of competent
jurisdiction—issued a final judgment on the merits when it dismissed Plaintiff’s 2013
complaint against BANA for failure to state a claim. 21 Additionally, “claims are part of
the same cause of action for res judicata purposes when they arise out of the same
transaction or series of transactions.” 22 Here, all of Plaintiff’s claim arise out of her loan,

Although BANA does not raise the issue of res judicata as an affirmative defense, “[d]ismissal by the
court sua sponte on res judicata grounds ... is permissible in the interest of judicial economy where both
actions were brought before the same court.” Shurick v. Boeing Co., 623 F.3d 1114, 1116 (11th Cir. 2010)
(internal citations and quotations omitted).
18 In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001) (citing Allen v. McCurry, 449 U.S. 90, 94
(1980)).
19 Id. (citing See Israel Discount Bank Ltd. v. Entin, 951 F.2d 311, 314 (11th Cir.1992); In re Justice Oaks II, Ltd.,
898 F.2d 1544, 1550 (11th Cir.1990)).
20 Id. (citing Justice Oaks, 898 F.2d at 1552).
21 Griffin v. Focus Brands Inc., 685 F. App'x 758, 760 (11th Cir. 2017) (“[A] dismissal for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6) is a judgment on the merits.”).
22 In re Piper Aircraft Corp., 244 F.3d at 1296–97 (11th Cir. 2001).
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security deed, and the subsequent foreclosure of her property. Lastly, Plaintiff could have
brought her TILA claims in her 2013 complaint. 23
Plaintiff’s claims are also clearly barred by TILA’s statute of limitations. TILA
actions for statutory damages must be brought within one year, or three years for certain
violations, “of the date of the occurrence of the violation.” 24 “The violation ‘occurs’ when
the transaction is consummated.” 25 Plaintiff alleges in her Complaint that the “TILA
violations took place at consummation of the mortgage loan contract transaction”; the
loan consummation occurred on September 3, 2009. 26 Therefore, the statute of limitations
for Plaintiff’s TILA claims ended in September 2010 or September 2012 at the latest. 27
Furthermore, Plaintiff’s assertion that equitable tolling should apply to her TILA
claim is unavailing. Although the Eleventh Circuit has held that equitable tolling can be
applied to TILA claims when defendants have fraudulently concealed the cause of action
from the plaintiff, 28 Plaintiff’s allegations in no way show she is entitled to equitable
tolling. Plaintiff fails to allege how Defendant fraudulently hid this cause of action from

Plaintiff did in fact allege TILA violations in her 2012 Notice of Removal of the dispossessory action. See
Notice of Removal, 3:12-cv-140, [Doc. 1, p. 2].
24 15 U.S.C.A. § 1640(e).
25 In re Smith, 737 F.2d 1549, 1552 (11th Cir. 1984).
26 Pl.’s Complaint, [Doc. 1, p. 6, 5].
27 Although is it not clear if Plaintiff is seeking rescission, she would not be entitled to rescind since “[t]he
right to rescind does not apply to…residential mortgage transaction[s],” and the right expires “3 years after
consummation, upon transfer of all of the consumer's interest in the property, or upon sale of the property,
whichever occurs first.” 12 C.F.R. § 226.23(f)(1), (a)(3).
28 Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 708 (11th Cir. 1998).
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her, and she fails to allege that she has exercised due diligence in the many years since
the consummation of her loan. 29 All Plaintiff alleges is that Defendant violated TILA, but
the Eleventh Circuit has stated that a “mere violation of [TILA] cannot serve as
extraordinary circumstances that merit tolling.” 30 Thus, Plaintiff’s TILA claims are clearly
time-barred and are hereby DISMISSED with prejudice 31 as they are barred by res
judicata and fail to state a claim upon which relief can be granted. 32
The Court WARNS Plaintiff that it has the discretion to impose sanctions on
abusive litigants, and proceeding pro se does not provide a “license to harass others, clog
the judicial machinery with meritless litigation, and abuse already overloaded court
dockets.” 33 This is the fourth suit against BANA wherein Plaintiff has attempted to void

Justice v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993). (“The interests of justice side with the defendant
when the plaintiff does not file her action in a timely fashion despite knowing or being in a position
reasonably to know that the limitations period is running, and, of course, when she fails to act with due
diligence. It bears emphasizing, however, that due diligence on the part of the plaintiff, though necessary,
is not sufficient to prevail on the issue of equitable tolling.”) (citations omitted). t
30 Sampson v. Washington Mut. Bank, 453 F. App'x 863, 865 (11th Cir. 2011); see also Frazile v. EMC Mortg.
Corp., 382 F. App'x 833, 838 n.2 (11th Cir. 2010).
31 Generally, a pro se plaintiff must be allowed a chance to amend before their claims are dismissed with
prejudice. The Court, however, need not grant leave to amend if amending the complaint would be futile
or if the plaintiff has indicated he does not wish to amend his complaint. Bank v. Pitt, 928 F.2d 1108, 1112
(11th Cir. 1991), overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541 (11th Cir. 2002), en
banc (overruling Bank with respect to counseled complaints but not pro se complaints). Here, Plaintiff has
not attempted to amend her Complaint in response to Defendant’s Motion to Dismiss, and amendment
would be futile since Plaintiff’s claims are barred.
32 Jones v. Bock, 549 U.S. 199, 215, 127 S. Ct. 910, 920–21, 166 L. Ed. 2d 798 (2007) (“A complaint is subject to
dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to
relief. If the allegations, for example, show that relief is barred by the applicable statute of limitations, the
complaint is subject to dismissal for failure to state a claim.”).
33 Patterson v. Aiken, 841 F.2d 386, 387 (11th Cir. 1988).
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the foreclosure of her house and her dispossession. The Superior Court of Walton County
issued its Final Judgment and Writ of Possession four years ago in 2015. If Plaintiff
persists in filing meritless law suits against this same Defendant, the Court will
consider imposing sanctions.
CONCLUSION
For the above reasons, Defendant’s Motion to Dismiss [Doc. 5] Plaintiff’s
Complaint is hereby GRANTED.
SO ORDERED, this 10th day of March, 2019.
S/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT

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