DAVIS et al v. COUNTRYWIDE HOME LOANS, INC. et al

Filing 13

MOTION to Dismiss, filed by Defendants BAC GP, LLC, BAC HOME LOANS SERVICING, LP, BANK OF AMERICA, N.A., COUNTRYWIDE HOME LOANS, INC.. (Strzynski, Matthew)

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DAVIS et al v. COUNTRYWIDE HOME LOANS, INC. et al Doc. 13 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION DWAYNE RANSOM DAVIS and MELISA DAVIS, on behalf of themselves and all others similarly-situated, Plaintiffs, vs. COUNTRYWIDE HOME LOANS, INC.; BANK OF AMERICA, N.A.; BAC GP, LLC; and BAC HOME LOANS SERVICING, LP, Defendants. DEFENDANTS' MOTION TO DISMISS Defendants Countrywide Home Loans, Inc., Bank of America, N.A., BAC GP, LLC, and BAC Home Loans Servicing, LP (collectively, "Defendants"), by counsel, move this Court to dismiss Plaintiffs' Complaint with prejudice pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In support of Defendants' Motion, and as set forth in more detail in the accompanying memorandum, Defendants state as follows: 1. Plaintiffs' claims are barred by the Rooker-Feldman doctrine, res judicata, and Case No: 1:10-cv-01303-JMS-DML collateral estoppel. 2. Plaintiffs lack standing to assert a RICO claim because they have failed to plead injury "by reason of" the alleged racketeering activity, and have failed to plead any of the underlying RICO sections on which they rely. Dockets.Justia.com 3. Defendants are not a "debt collector" under the Fair Debt Collection Practices Act, and the underlying foreclosure proceeding was an action to enforce a security interest, not an attempt to collect a debt. WHEREFORE, Defendants request that this Court dismiss Plaintiffs' Complaint with prejudice and grant any other relief that the Court deems proper. Respectfully submitted, /s/ Matthew R. Strzynski Matthew R. Strzynski, Attorney No. 23765-15 KRIEG DeVAULT LLP mstrzynski@kdlegal.com 12800 North Meridian Street, Suite 300 Carmel, Indiana 46032-9422 (317) 566-1110 FAX: (317) 636-1507 Attorneys for Defendants Countrywide Home Loans, Inc.; Bank of America, N.A.; BAC GP, LLC; and BAC Home Loans Servicing, LP 2 Of counsel: Richard Cullen, pro hac vice pending J. William Boland, pro hac vice pending Bryan A. Fratkin, pro hac vice pending Brian E. Pumphrey, pro hac vice pending McGUIREWOODS LLP One James Center 901 East Cary Street Richmond, Virginia 23219 Phone: (804) 775-1000 Fax: (804) 775-1061 rcullen@mcguirewoods.com wboland@mcguirewoods.com bfratkin@mcguirewoods.com bpumphrey@mcguirewoods.com Bradley Kutrow, pro hac vice pending McGUIREWOODS LLP Bank of America Corporate Center 100 North Tryon Street, Suite 2900 Charlotte, North Carolina 28202-4011 Phone: (704) 343-2049 Fax: (704) 373-8935 bkutrow@mcguirewoods.com 3 CERTIFICATE OF SERVICE I certify that a copy of the foregoing Corporate Disclosure Statement was filed electronically on this 10th day of November, 2010. Notice of this filing will be sent to the parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. For those parties which are not registered with the Court's electronic filing system, I certify that a copy of this Corporate Disclosure Statement has been served by depositing a copy of it in the United States mail, first class postage prepaid. Irwin B. Levin Richard E. Shevitz Eric S. Pavlack Vess A. Miller Gabriel A. Hawkins ilevin@cohenandmalad.com rshevitz@cohenandmalad.com epavlack@cohenandmalad.com vmiller@cohenandmalad.com ghawkins@cohenandmalad.com Counsel for the Plaintiffs and Proposed Class /s/ Matthew R. Strzynski KD_3085767_1.DOC Clifford T. Rubenstein MAURER RIFKIN & HILL, P.C. 11550 North Meridian Street, Suite 115 Carmel, IN 46032 Counsel for the Plaintiffs and Proposed Class 4

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