Harris v. Huntington National Bank et al

Filing 24

MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 12/15/2015; re 23 MOTION to Dismiss for Lack of Jurisdiction filed by Huntington National Bank, 21 MOTION to Dismiss Plaintiff's Complaint for lack of service filed by Mortgage Electronic Registration Systems, Inc., 10 MOTION to Dismiss for Lack of Jurisdiction , failure to state a claim, and the doctrines of res judicata and collateral estoppel filed by Citimortgage Inc., 22 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim filed by Citimortgage Inc. ; separate order shall issue.cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CASE NO.: 5:15-CV-165-TBR
NATASHA HARRIS

PLAINTIFF

v.
HUNTINGTON NATIONAL BANK
CITIMORTGAGE, INC.

DEFENDANTS

MEMORANDUM OPINION
This matter comes before the Court on Defendant CitiMortgage, Inc.’s motion to dismiss,
(Docket #10, 22); Defendant Mortgage Electronic Registration Systems, Inc.’s motion to
dismiss, (Docket #21); and Defendant Huntington National Bank’s motion to dismiss, (Docket
#23). Plaintiff has not responded. For the following reasons, Defendants’ motions to dismiss
(Docket #10, 22, 21, 23) will be GRANTED.
BACKGROUND
Plaintiff Natasha Harris owns the property located at 2027 Seitz Street, Paducah,
Kentucky (the “Property”). In 2005, Harris used the Property as collateral to secure a mortgage
(the “Mortgage”) with Union Federal Bank of Indianapolis (“Union Federal). (Docket #1).
Through a series of mergers and assignments the Mortgage is now owned by Defendant
CitiMortgage, Inc. (“CitiMortgage”).
In 2012, CitiMortgage initiated a foreclosure action against Harris in McCracken County
Circuit Court. Harris defended that action on the grounds that the Mortgage was not properly
transferred to CitiMortgage or the transfers were not properly documented, among other
arguments. (Docket #10-5). Harris argued that CitiMortgage could not prove that it was the real
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party in interest and lacked standing to foreclose on the Mortgage. On April 23, 2015, the
McCracken County Circuit Court ruled in favor of CitiMortgage and issued a judgment and
order of sale. (Docket #10-5).
On July 22, 2015, Harris filed this action pro se. (Docket #1). CitiMortgage filed a
motion to dismiss on August 17, 2015. (Docket #10). Harris did not timely respond to that
motion. On September 17, 2015, Harris filed an amended complaint which added claims against
Defendant Huntington National Bank (formerly Union Federal) and Defendant Mortgage
Electronic Registration System, Inc. (“MERS”). (Docket #16). CitiMortgage moved to strike
this amended complaint on the grounds that Harris did not first seek leave of the Court. (Docket
#19). This Court conducted a teleconference to discuss the pending motions with Harris and the
Defendants. (Docket #17, 18). The Court granted leave for Harris to file her amended complaint
and denied CitiMortgage’s motion to strike. (Docket #20). The Court ordered the Defendants to
file an answer or motion responding to Harris’s amended complaint within twenty-one days. The
Court also informed Harris that she was required to respond to these motions.
All three Defendants have now filed a motion to dismiss. CitiMortgage argues this action
is a “pseudo appeal” from the state court action that is barred by both res judicata and the
Rooker-Feldman doctrine. (Docket #10, 22). Defendant Huntington National Bank joins
CitiMortgage’s arguments. (Docket #23). MERS argues it has not been properly served.
(Docket #21). Harris has not responded to these motions and the time to do so has passed.
Nevertheless, the Court will address the merits of the motions to dismiss. 1

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A failure to prosecute, which may include the failure to respond to a motion to dismiss, is
analyzed under Rule 41(b). “In the context of dismissal pursuant to Rule 41(b) for failure to
prosecute, we look to four factors for guidance: (1) whether the party's failure is due to
willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party's
conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to
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DISCUSSION
Harris filed this suit following CitiMortgage’s foreclosure upon the Property.
CitiMortgage filed its foreclosure action in state court in McCracken County Circuit Court.
(Docket #22-3). In that action, Harris argued CitiMortgage did not have standing to sue because
CitiMortgage did not own the Mortgage. Harris argues there were several defects in the transfer
of ownership from Union Federal to MERS to CitiMortgage. (Docket #22-7). The state court
found in favor of CitiMortgage. (Docket #22-4). Harris filed a motion to vacate (Docket #22-8)
which was denied. (Docket #22-10). Harris also filed a motion to set aside the judgment
(Docket #22-11) which was also denied. (Docket #22-12).
In this case, Harris argues Defendants fraudulently transferred the Mortgage and that
CitiMortgage is not the true owner of the Mortgage. (Docket #16). Defendants argue Harris’s
claim should be denied because it is barred by res judicata. Res judicata consists of two
concepts, claim preclusion and issue preclusion (also called collateral estoppel).” Moorhead v.
Dodd, 265 S.W.3d 201, 203 (Ky. 2008). “Claim preclusion bars subsequent litigation between
the same parties or their privies, on a previously adjudicated cause of action.” Id. (citing Buis v.
Elliott, 142 S.W.3d 137, 139-40 (Ky. 2004)). “Issue preclusion, on the other hand, precludes the
relitigation of an issue that was actually litigated and decided in a prior proceeding.” Id. In this
case, claim preclusion bars Harris’s claims against CitiMortgage as both parties were present in
the state court action and the state court found in favor of CitiMortgage. Issue preclusion also
bars Harris’s claims because Harris was a party in the state court case, the same issues were
raised, these issue were actually litigated and necessary to the state court action, and the state
court found against Harris, the party to be bound. Miller v. Admin. Office of the Courts, 361

dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal
was ordered.” Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999).
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S.W.3d 867, 872 (Ky. 2011). Finally, res judicata also bars Harris’s claims based on new legal
theories but founded upon the same facts. Moorhead, 265 S.W.3d at 203 (“the rule against
splitting causes of action precludes successive actions arising from one transaction”); Combs v.
Prestonsburg Water Co., 84 S.W.2d 15, 18 (Ky. 1935) (“parties are required to bring forward
their whole case; and ‘the plea of res judicata applies not only to the points upon which the court
was required by the parties to form an opinion and pronounce judgment, but to every point which
properly belonged to the subject of litigation, and which the parties, exercising reasonable
diligence, might have brought forward at the time.’”) (citation omitted).
Defendants also argue this Court lacks jurisdiction due to the Rooker-Feldman doctrine.
See Dist. of Columbia Ct. Of App. v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust
Co., 263 U.S. 462 (1923). “The Rooker-Feldman doctrine deprives federal courts of jurisdiction
over ‘cases brought by state-court losers complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and inviting district court review and
rejection of those judgments.’” Bell v. Countrywide Home Loans, Inc., 2014 U.S. Dist. LEXIS
79985 *5-6 (W.D. Ky. 2014) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
280, 284 (2005)). It is “simply impermissible” for this Court “to sit as a quasi-appellate court
and enter an order which will circumvent the state court’s final judgment.” Id. Several parties
have attempted to appeal a state court foreclosure action in federal court in this manner, and the
federal courts have routinely found they lacked jurisdiction to reconsider the state court’s
judgment. See e.g. Id.; McCroy v. N.Y. Bank & Trust Co., 2008 WL 2714116, at *1 (E.D. Mich.
2008); Hammond v. HSBC Mortg. Servs., 2010 U.S. Dist. LEXIS 33629 (W.D. Ky. 2010).
Finally, MERS argues the claims against it must be dismissed because MERS has not
been properly served. “The Federal Rules of Civil Procedure provide a very specific method for

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apprising a defendant of a lawsuit and conferring a court’s jurisdiction over him.” King v.
Taylor, 694 F.3d 650, 656 n. 1 (6th Cir. 2012). Rule 4(c) requires a summons be served with a
copy of the complaint. The plaintiff bears the burden of showing proper service has been made.
Fed. R. Civ. P. 4(c); Skinner v. City of Memphis, 2012 U.S. Dist. LEXIS 142790 (W.D. Tenn.
2012). “[W]ithout proper service of process, consent, waiver, or forfeiture, a court may not
exercise personal jurisdiction over a named defendant.” King, 694 F.3d at 655. A defendant’s
awareness of the fact they have been sued “makes no legal difference to the question whether he
was properly served.” Id. at 655-56. MERS argues that Harris did not serve MERS with both a
summons and a copy of the complaint. (Docket #21-1). The record shows that while
CitiMortgage and Huntington National Bank have been served with summons (Docket #4, 5),
MERS has not. Accordingly, this Court lacks jurisdiction over MERS.
CONCLUSION
IT IS HEREBY ORDERED that, for the foregoing reasons, Defendants’ motions to
dismiss (Docket #10, 22, 21, 23) will be GRANTED.
A separate judgment and order shall be issued.

cc:

counsel of record;
December 15, 2015

Natasha Harris, pro se
2027 Seitz St.
Paducah, KY 42003

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