Johnson v. Citimortgage, Inc. et al

Filing 23

ORDER AND REASONS: IT IS ORDERED that Defendant's 18 motion to dismiss is GRANTED AS UNOPPOSED, it appearing to the Court that Defendant's motion has merit. IT IS FURTHER ORDERED that all of Plaintiff's claims in the above-captioned matter are DISMISSED WITHOUT PREJUDICE. Signed by Judge Ivan L.R. Lemelle on 2/21/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
VAN PATRICK JOHNSON

CIVIL ACTION

VERSUS

NO. 16-892

CITIMORTGAGE, INC. ET AL.

SECTION "B"(3)

ORDER AND REASONS
Before the Court is Defendant “Nationstar Mortgage LLC’s FRCP
12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction;
FRCP 12(b)(6) Motion to Dismiss for Failure to State a Claim, and,
in the Alternative, FRCP 12(E) Motion for More Definite Statement.”
Rec. Doc. 18. The motion was set for submission on January 18,
2017.

Pursuant

to

Local

Rule

7.5,

Plaintiff’s

memorandum

in

opposition was due on or before January 10, 2017. No memorandum in
opposition was filed. Further, no party filed a motion to continue
the noticed submission date or a motion for extension of time
within which to oppose the motion. Thus, the motion is deemed to
be unopposed. As discussed below, it further appears to the Court
that the motion has merit. Accordingly,
IT IS ORDERED that the motion to dismiss (Rec. Doc. 18) is
GRANTED AS UNOPPOSED. Additionally, it appears that this Court
lacks

subject

doctrine.

matter

jurisdiction

under

the

Rooker-Feldman

I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of a note executed by Van Patrick Johnson

(“Plaintiff”) on November 7, 2007. Rec. Doc. 1 at ¶ 1. The
$417,000.00 note was payable in monthly installments of $2,987.44
to America’s Mortgage Resource, Inc. Id. at ¶¶ 1-2. The note was
secured by a mortgage on property located at 12164 Dey Say Street,
Lutcher, Louisiana. Id. at ¶ 2.
In August 2008, Plaintiff “requested a temporary moratorium
plan on the total note principal for three (3) months . . . .” Id.
at ¶ 3. The loan servicing agent, Defendant CitiMortgage, Inc.
(“CitiMortgage”), granted the request and purportedly agreed that
any delinquent payments would not be reported to credit bureaus.
Id. at ¶¶ 4-5. When Plaintiff subsequently tried to purchase
commercial property, he discovered that his credit report showed
that he was approximately 30-90 days past due on his mortgage. Id.
at ¶ 6.
Thereafter, in January 2010 Plaintiff qualified for a “Home
Affordable Modification Trial Period Plan,” which reduced his
monthly payments to $2,006.80; on September 17, 2010, a Loan
Modification

Agreement

(the

“Agreement”)

reduced

his

monthly

payments to $1,528.97. Id. at ¶¶ 7-8. According to this Agreement,
his monthly payments were to remain at this lower rate for five
years. Id. at ¶ 9.

2

On October 15, 2010 Defendant CitiMortgage notified Plaintiff
that, effective November 1, 2010, his loan would be serviced by
Defendant

Nationstar

Mortgage,

LLC

(“Nationstar”)

and

that

Nationstar would honor the Agreement. Id. at ¶ 10. However, when
he received mortgage loan statements from Nationstar, Plaintiff
discovered that he was being charged for additional legal and
property inspection fees that were not part of the Agreement and
increased his monthly payments to $3,085.39. Id. at ¶¶ 12-13.
On March 31, 2011, Nationstar filed a petition in the 23rd
Judicial District Court (“JDC”), alleging that Plaintiff defaulted
on the note. Id. at ¶ 15. The suit was eventually dismissed on
August 14, 2013. Id. At some point thereafter, Plaintiff believes
his loan was sold to CitiMortgage. Id. at ¶ 16.
On July 1, 2014, CitiMortgage filed suit in the 23rd JDC,
alleging that Plaintiff failed to make payments in accordance with
the Agreement. Id. at ¶ 17.1 A Writ of Seizure and Sale was issued
on July 8, 2014 and a Sheriff’s sale was scheduled. Id. at ¶¶ 2021.
Plaintiff claims that CitiMortgage “filed inaccurate and
manipulated invoice statements with the court” and led Plaintiff
“to believe that it was reviewing a loan modification package . .

Plaintiff’s complaint suggests that CitiMortgage referred to an October 1,
2010 agreement in their petition in state court, but we will assume that the
parties were referring to the September 17, 2010 Agreement.
1

3

. but . . . was simultaneously initiating foreclosure proceedings
. . . .” Id. at ¶¶ 18-19.
Consequently,

on

February

1,

2016,

Plaintiff

filed

a

complaint in this Court, asserting various causes of action against
Defendants CitiMortgage and Nationstar, including those arising
from predatory lending, accepting an excessive debt to income
ratio, mortgage fraud, mortgage servicing fraud, dual tracking,
and wrongful foreclosure and seizure. Id. at ¶ 23. Plaintiff
requests

preliminary

and

permanent

injunctions

enjoining

CitiMortgage form seizing and/or selling Plaintiff’s property,
damages, and attorney’s fees. Id. at ¶ 24, p. 10.
After

filing

the

complaint,

Plaintiff

failed

to

serve

Defendants. Consequently, the matter was placed on this Court’s
September 28, 2016 call docket. Rec. Doc. 3. At that time, the
case was “passed for 30 days.” Rec. Doc. 4. On October 20, 2016,
counsel for Plaintiff submitted a summons to be issued to both
Defendants. Rec. Docs. 5-7. CitiMortgage and Nationstar attempted
to return executed summons’ on November 16, 2016, but they were
marked deficient. Rec. Docs. 8-9. The summons’ were appropriately
returned

on

extension,

November

Defendant

28,

2016.

Nationstar

Rec.
filed

Docs.
the

11-12.

instant

dismiss on December 21, 2016. Rec. Docs. 10, 13, 18.

4

After

an

motion

to

II.

THE PARTIES’ CONTENTIONS

Defendant asserts several grounds for dismissal, including
four potential grounds for lack of subject matter jurisdiction and
nine potential grounds for failure to state a claim. See Rec. Doc.
18-1 at 5, 11-19. Because the motion was unopposed and we agree
that this Court lacks subject matter jurisdiction under the RookerFeldman doctrine, we will only discuss this ground for dismissal.
III. LAW AND ANALYSIS
“The standard of review for a Rule 12(b)(1) motion to dismiss
for lack of subject matter jurisdiction is the same as that for a
Rule 12(b)(6) motion.” SPSL OPOBO Liberia, Inc. v. Mar. Worldwide
Servs., Inc., No. 07-3355, 2008 WL 2079918, at *1 (E.D. La. May
15, 2008) (citing Benton v. United States, 960 F.2d 19, 21 (5th
Cir. 1992). Accordingly, this Court must accept all well-pleaded
facts as true and view them in the light most favorable to the
non-moving party. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.
1996). “To 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) (internal quotation marks omitted). A claim is
facially plausible “when the plaintiff pleads factual content that
allows

the

court

to

draw

the

reasonable

inference

that

the

defendant is liable for the misconduct alleged.” Id. Generally,
“[i]n ruling on a motion to dismiss for lack of subject matter
5

jurisdiction, a court may evaluate (1) the complaint alone, (2)
the complaint supplemented by undisputed facts evidenced in the
record, or (3) the complaint supplemented by undisputed facts plus
the

court’s

resolution

of

disputed

facts.”

Den

Norske

Stats

Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001).
“Federal courts are courts of limited jurisdiction. They
possess only that power authorized by [the] Constitution and
statute, which is not to be expanded by judicial decree. It is to
be presumed that a cause lies outside this limited jurisdiction.”
Rasul v. Bush, 542 U.S. 466,
omitted),

superseded

on

489 (2004)

other

grounds

by

(internal citations
statute,

Detainee

Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2739, as
recognized in Aamer v. Obama, 742 F.3d 1023, 1028 (D.C. Cir. 2014).
In order to provide a federal forum for plaintiffs who
seek to vindicate federal rights, Congress has conferred
on the district courts original jurisdiction in federalquestion cases—civil actions that arise under the
Constitution, laws, or treaties of the United States. 28
U.S.C. § 1331. In order to provide a neutral forum for
what have come to be known as diversity cases, Congress
also has granted district courts original jurisdiction
in civil actions between citizens of different States,
between U.S. citizens and foreign citizens, or by
foreign states against U.S. citizens. [28 U.S.C.] §
1332. To ensure that diversity jurisdiction does not
flood the federal courts with minor disputes, § 1332(a)
requires that the matter in controversy in a diversity
case exceed a specified amount, currently $75,000.
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552
(2005).

The

burden

of

persuasion

for

establishing

diversity

jurisdiction is on the party asserting it. Hertz Corp. v. Friend,
6

559 U.S. 77, 96 (2010) (citing Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994); McNutt v. Gen. Motors Acceptance
Corp., 298 U.S. 178, 189 (1936); 13E Wright & Miller § 3602.1, at
119). Further, subject matter jurisdiction “cannot be created by
waiver or consent” and federal courts “must consider jurisdiction
sua sponte if not raised by the parties.” Howery v. Allstate Ins.
Co., 243 F.3d 912, 919 (5th Cir. 2001). If a court lacks subject
matter jurisdiction, the case must be dismissed. CleanCOALition v.
TXU Power, 536 F.3d 469, 473 (5th Cir. 2008) (citing Home Builders
Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th
Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81
F.3d 1182, 1187 (2d Cir. 1996))).
Nonetheless, under the Rooker-Feldman doctrine, derived from
Rooker v. Fidelity Trust Company, 263 U.S. 413 (1923), overruled
on other grounds by Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 284 (2005) and D.C. Court of Appeals v. Feldman, 460
U.S. 462 (1983), “inferior federal courts do not have the power to
modify or reverse state court judgments.” Matter of Reitnauer, 152
F.3d 341, 343 (5th Cir. 1998).
No statute exists . . . granting federal district courts
jurisdiction to hear appeals from state court decisions.
28 U.S.C. § 1257 provides that “[f]inal judgments or
decrees rendered by the highest court of a State in which
a decision could be had, may be reviewed by the Supreme
Court by writ of certiorari . . . .” No parallel
provision
exists
similarly
granting
appellate
jurisdiction over state court decisions to the inferior
federal courts. The Supreme Court has definitively
7

established, in what has become known as the RookerFeldman doctrine, that “federal district courts, as
courts
of
original
jurisdiction,
lack
appellate
jurisdiction to review, modify, or nullify final orders
of state courts.” [Liedtke v. State Bar of Tex., 18 F.3d
315, 317 (5th Cir. 1994) (citing Kimball v. The Florida
Bar, 632 F.2d 1283, 1284 (5th Cir. 1980); Chrissy F. by
Medley v. Miss. Dep’t of Pub. Welfare, 995 F.2d 595 (5th
Cir. 1993); Reed v. Terrell, 795 F.2d 472 (5th Cir.
1985); Hagerty v. Succession of Clement, 749 F.2d 217
(5th Cir. 1984)).] “If a state trial court errs[,] the
judgment is not void, it is to be reviewed and corrected
by the appropriate state appellate court. Thereafter,
recourse at the federal level is limited solely to an
application for a writ of certiorari to the United States
Supreme Court.” [Id. (citing Rooker, 263 U.S. 413;
Feldman, 460 U.S. 462).]
Weekly v. Morrow, 204 F.3d 613, 615 (5th Cir. 2000). In other
words,

it

applies

to

“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.” Exxon
Mobil Corp., 544 U.S. at 284. Further,
[A]
federal
complainant
cannot
circumvent
this
jurisdictional limitation by asserting claims not raised
in the state court proceedings or claims framed as
original claims for relief. If the district court is
confronted
with
issues
that
are
“inextricably
intertwined” with a state judgment, the court is “in
essence being called upon to review the state-court
decision,” and the originality of the district court’s
jurisdiction precludes such a review.
United States v. Shepherd, 23 F.3d 923, 924 (5th Cir. 1994)
(quoting Feldman, 460 U.S. at 482 n. 16) (citing Liedtke v. State
Bar of Tex., 18 F.3d 315, 317-18 (5th Cir. 1994)).

8

In Flores v. Citizens State Bank of Roma, Texas, appellants
filed

a

civil

rights

and

Racketeer

Influenced

and

Corrupt

Organizations Act (RICO) complaint against a bank, bank employees,
and two constables after a constable removed various items from
the appellants’ place of business pursuant to a state court
judicial foreclosure. 132 F.3d 1457, 1997 WL 803150, at *1 (5th
Cir. 1997) (unpublished). The Fifth Circuit determined that the
appellants’ claims “ar[o]se solely from the state-court litigation
and

[were]

‘inextricably

intertwined’

with

the

state

court’s

judgment. The sole purpose of this action [was] to review the state
court’s foreclosure and seizure of property pursuant to the related
writ of execution and, therefore, [it] cannot be reviewed in
federal court.” Id.
In United States v. Shepherd, the government filed suit on
behalf of the Farmers Home Administration (“FmHA”) in a federal
district court in an attempt to set aside a judgment of the 121st
JDC that confirmed the validity of a series of foreclosure sales,
one of which extinguished a junior lien held by the FmHA. 23 F.3d
923, 924 (5th Cir. 1994). The government complained that John
Shepherd schemed to extinguish the FmHA’s junior lien by purchasing
superior liens and conducting fraudulent foreclosure sales. Id. On
appeal, the Fifth Circuit determined that the district court did
not

have

jurisdiction

to

review

or

disturb

the

state

court

judgment. Id. at 925. Instead, the government had ample state court
9

remedies available to it, including filing a motion for new trial,
seeking a bill of review proceedings, or by filing a writ of error
in an intermediate appellate court. Id.
In

Carter

v.

Deutche

Bank

National

Trust

Company,

the

plaintiff obtained a $499,900.00 mortgage loan secured by property
located at 2418 Ormond Boulevard in Destrehan, Louisiana. No. 10797, 2010 WL 3074323, at *1 (E.D. La. Aug. 2, 2010). After the
plaintiff defaulted on the loan, the mortgagees filed a petition
for executory process in the 29th JDC. Id. The state court issued
a writ of seizure and sale. Id. The plaintiff never appealed this
order, but, after a writ of possession was ordered in favor of the
mortgagees, she filed a motion to vacate the sale in state court.
Id. This motion was denied and the plaintiff appealed. Id. Before
the motion was denied, however, the plaintiff filed a complaint in
federal court, alleging that the mortgagees obtained the state
court foreclosure “through fraud and that they violated her 14th
amendment rights, her privacy rights, the Real Estate Settlement
Procedures Act (RESPA), and the Truth in Lending Act (TILA).” Id.
The defendants moved to dismiss the complaint pursuant to the
Rooker-Feldman doctrine. Id. at *1-2. The court determined that it
lacked

jurisdiction

to

(1)

“interfere

with

ongoing

state

proceedings that implicate important state interests” and (2) “to
review state-court judgments.” Id. at *2 (citing Younger v. Harris,
401 U.S. 37, 54 (1971); Pennzoil Co. v. Texaco, Inc., 481 U.S. 1,
10

14 (1987); Rooker, 263 U.S. 413; Feldman, 460 U.S. 462). The
plaintiff’s claims that the state court judgment was fraudulently
or wrongfully obtained were consequently dismissed, as were her
claims that the defendants violated certain rights arising under
federal

law,

because

the

latter

claims

were

“inextricably

intertwined” with the state court’s judgment. Id.
Here, Defendant argues that the 23rd JDC ordered the seizure
and sale of Plaintiff’s property on July 8, 2014. Rec. Doc. 18-1
at 7 (citing Rec. Doc. 18-3 at 15).2 On August 19, 2014, Plaintiff
filed a “Verified Petition” seeking to enjoin the seizure and sale.
Id. (citing Rec. Do. 18-3 at 50-57). On November 18, 2015, Judge
Jessie M. LeBlanc of the 23rd JDC denied Plaintiff’s petition. Id.
(citing Rec. Doc. 18-3 at 163). On January 12, 2016, Judge LeBlanc
allowed Plaintiff to file a devolutive appeal with the Louisiana
Fifth Circuit. Id. (citing Rec. Doc. 18-3 at 174). After Plaintiff
failed to file briefings, the Louisiana Fifth Circuit dismissed
his appeal on June 6, 2016. Id. (citing Rec. Doc. 18-3 at 315). On
February 1, 2016, Plaintiff asserted several claims in this Court
in an attempt to enjoin the seizure and sale and to obtain damages.
See Rec. Doc. 1 at ¶¶ 23-26.
Like

Flores,

Shepherd,

and

Carter,

this

Court

lacks

jurisdiction to review the state court’s judgment. Plaintiff had

Rec. Doc. 18-3 is Exhibit B attached to Defendant’s motion. It will be cited
according to the record document page number provided by this Court’s CM/ECF
system.
2

11

the opportunity to raise any objections to the writ of seizure and
sale in the 23rd JDC and in the Louisiana Fifth Circuit. Because
Plaintiff’s “sole purpose” in this action is to obtain review of
the

state

court’s

judgment

of

foreclosure,

we

lack

original

jurisdiction and Plaintiff’s claims must be dismissed.
IV.

CONCLUSION

For the reasons outlined above,
IT IS ORDERED that Defendant’s motion to dismiss (Rec. Doc.
18) is GRANTED AS UNOPPOSED, it appearing to the Court that
Defendant’s motion has merit.
IT IS FURTHER ORDERED that all of Plaintiff’s claims in the
above-captioned matter are DISMISSED WITHOUT PREJUDICE.

A motion for reconsideration of this Order, based on the
appropriate Federal Rule of Civil Procedure, if any, must be filed
within

thirty

(30)

days

of

this

Order.

The

motion

must

be

accompanied by an opposition memorandum to the original motion.
Because such a motion would not have been necessary had a timely
opposition memorandum been filed, the costs incurred in connection
with the motion, including attorney’s fees, may be assessed against
the party moving for reconsideration. See Fed. R. Civ. P. 16, 83.
A statement of costs and fees conforming to Local Rules 54.2 and
54.3 shall be submitted by all parties desiring to be awarded costs

12

and attorney’s fees no later than eight (8) days prior to the
noticed submission date of the motion for reconsideration.
New Orleans, Louisiana, this 21st day of February, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

13