Ledin v. Wells Fargo Bank, N.A.
MEMORANDUM AND ORDER granting 7 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Monti L. Belot on 2/28/14. (alm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WELLS FARGO BANK, N.A.,
MEMORANDUM AND ORDER
This case comes before the court on defendant’s motion to
dismiss. (Doc. 7). The motion has been fully briefed and is ripe for
(Docs. 8, 10).
Defendant’s motion is granted for the
Facts and Procedural History
Plaintiff’s father, Charles Ledin, obtained a mortgage for
property in Hutchinson, Kansas, from defendant Wells Fargo Bank.
2008, defendant issued a 1099-C, “Cancellation of Debt,” to Charles
Ledin in the amount of $23,245.01.
Plaintiff alleges that the 1099-C
released the mortgage on the property and defendant violated the
Mortgage Forgiveness Debt Relief Act by attempting to enforce the
On June 15, 2009, plaintiff filed an action in the District
Court of Reno County, Kansas, to quiet title.
Plaintiff sought the
release of defendant’s lien and a declaration that plaintiff was not
obligated to pay the outstanding mortgage.
On August 13, 2010, the
Defendant did not file a reply and the time for doing so has
court entered a judgment in favor of defendant and held that the
mortgage was a valid and enforceable lien against the property.
Plaintiff appealed the judgment.
During the appeal, plaintiff
and defendant entered into a settlement agreement.
to list the property for sale within sixty days of the agreement, pay
defendant $13,000 from the sale proceeds, dismiss the appeal and
release all claims against defendant.
Plaintiff, however, failed to
comply with the terms of the agreement.
Defendant filed a motion to
dismiss the appeal and confirm the settlement agreement.
Court of Appeals entered an order granting defendant’s motion and
dismissed the appeal.
Plaintiff filed a petition for review with the
Kansas Supreme Court and it was denied.
On May 15, 2012, plaintiff filed another action in Reno County.
Plaintiff alleged that the settlement agreement was unconstitutional
and that defendant illegally attempted to foreclose on the property
by forcing him to list the property for sale.
Plaintiff sought money
damages, a release from the mortgage and an injunction to prevent the
sale of the property.
In July 2012, plaintiff agreed to a dismissal
of his claims, with prejudice.
On September 19, 2012, plaintiff was
sanctioned by the district court for his filings in the 2009 case.
On January 3, 2014, plaintiff filed this action.
alleges that defendant has violated the Mortgage Forgiveness Debt
Relief Act by attempting to enforce the mortgage and by issuing a
fraudulent 1099-C. Plaintiff seeks an order invalidating the mortgage
and a money judgment in the amount of $55 billion.
Defendant moves for dismissal on the basis of res judicata,
settlement and waiver.
Motion to Dismiss Standards: FRCP 12(b)(6)
The standards this court must utilize upon a motion to dismiss
are well known. To withstand a motion to dismiss for failure to state
a claim, a complaint must contain enough allegations of fact to state
a claim to relief that is plausible on its face. Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007)).
pleaded facts and the reasonable inferences derived from those facts
are viewed in the light most favorable to plaintiff.
Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory allegations,
however, have no bearing upon this court’s consideration.
City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007).
end, the issue is not whether plaintiff will ultimately prevail, but
whether he is entitled to offer evidence to support his claims.
Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005).
Whether a prior judgment bars relitigation of a claim or issue
is addressed by the doctrine of res judicata. See Jackson Trak Group,
Inc. v. Mid States Port Authority, 242 Kan. 683, 690, 751 P.2d 122
In Kansas, the doctrine encompasses both issue preclusion,
i.e. collateral estoppel, and claim preclusion.
The concept of claim preclusion requires that the following four
elements be satisfied: (1) same claim; (2) same parties; (3) claims
were or could have been raised; and (4) a final judgment on the
Winston v. Kansas Dept. of SRS, 274 Kan. 396, 413, 49 P.3d
1274, cert. denied 537 U.S. 1088 (2002).
Although plaintiff’s claims are worded somewhat differently, the
court finds that they are identical.
This is because, for purposes
of claim preclusion, the term claim “connotes a natural grouping or
common nucleus of operative facts.”
Stanfield v. Osborne Industries,
Inc., 263 Kan. 388, Syl. ¶ 5, 949 P.2d 602 (1997), cert. denied 525
U.S. 831 (1998).
Plaintiff’s allegations of fraud concerning the
attempts to collect on the mortgage share the common nucleus of
operative facts that were present in both of the state cases.
Moreover, these allegations of fraud could have been raised in state
court because they allegedly occurred prior to the second state
Finally, plaintiff’s claims were adjudicated on the merits.
Semtek Int'l, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505–06, 121
S. Ct. 1021 (2001) (noting that using the words “with prejudice” in
an order of voluntary dismissal “is an acceptable form of shorthand
for an adjudication upon the merits”).
Therefore, plaintiff’s complaint is barred by the doctrine of
Moreover, the court would dismiss plaintiff’s complaint because
he waived all claims concerning the mortgage in the settlement
The agreement contains the following provision:
[Plaintiff and defendant] . . . release and discharge
each other from any and all claims, demands, actions,
causes of action . . . which they may now or hereafter have
or claim to have against each other . . . based in whole or
in part upon, relating to, or existing by reasons of the
facts and circumstances . . . that were asserted or could
have been asserted in the Lawsuit.
(Doc. 8, exh. C at 2-3).
The settlement agreement was confirmed by the Kansas Court of
Appeals and plaintiff has failed to allege facts which would suggest
that the agreement is not valid and enforceable.2
Therefore, plaintiff’s claims are barred by the settlement
Defendant’s motion to dismiss is granted.
A motion for reconsideration of this order is not encouraged.
Any such motion shall not exceed 3 double-spaced pages and shall
strictly comply with the standards enunciated by this court in Comeau
v. Rupp, 810 F. Supp. 1172, 1174 (1992).
The response to any motion
for reconsideration shall not exceed 3 double-spaced pages.
shall be filed.
IT IS SO ORDERED.
Dated this 28th day of February 2014, at Wichita, Kansas.
Monti L. Belot
UNITED STATES DISTRICT JUDGE
Plaintiff’s allegations that defendant somehow failed to act
with respect to the settlement agreement is incomprehensible. The
settlement agreement clearly requires plaintiff to act in dismissing
his claims and listing his property for sale. Plaintiff fails to
point to any provision in the settlement agreement which defendant has
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?