Tatar v. Wells Fargo Bank, N.A.,

Filing 10

OPINION AND ORDER granting 4 Motion to Dismiss. Signed by District Judge Marianne O. Battani. (BThe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN J. TATAR,
Plaintiff,
v.

CASE NO. 12-13314
HON. MARIANNE O. BATTANI

WACHOVIA BANK, N.A.,
Defendant.
___________________________________/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
Before the Court is Defendant's Motion to Dismiss (Doc. No. 4). The Court has
reviewed all the relevant filings and finds oral argument will not aid in the resolution of this
dispute. See E. D. Mich. LR 7.1(f)(2). For the reasons that follow, the Court GRANTS
Defendant’s motion.
I. STATEMENT OF FACTS
Plaintiff John Tatar has filed six prior cases relating to the 2010 foreclosure of his
mortgage on property located at 16451 Savoie, Livonia, Michigan. All six cases have been
dismissed. See 11-11212, 11-51423, 11-51424, 11-51425, 11-51426, and 11-13090. In
his most recent Complaint, which was removed from Wayne County Circuit Court, Plaintiff
alleges that the foreclosure sale is void ab initio and that he should have been able to
participate in a loan modification through the Home Affordable Mortgage Program (HAMP).
The facts giving rise to the claim were detailed in the Opinion and Order Granting
Defendant’s Motion to Dismiss and/or for Summary Judgment on all of Plaintiff’s Claims in
Case No. 11-11212, dated June 23, 2011.

Notably, on June 13, 2005, Plaintiff received a loan in the amount of $244,850 from
World Savings Bank, FSB1 and executed an adjustable rate mortgage for 16451 Savoie,
Livonia, as security for the note. (Doc. No. 4, Exs. 6, 7, 9, 10) After Plaintiff defaulted on
his loan, Defendant initiated foreclosure proceedings and purchased the property, which
was sold August 18, 2010, at a sheriff’s sale. (Doc. No. 4, Ex. 8). The redemption period
expired on February 18, 2011, the date Plaintiff filed his first action. (See Doc. No. 4, Ex.
11).

Wells Fargo successfully moved for dismissal of that case. Thereafter, Tatar filed

four miscellaneous cases raising claims relating to the foreclosure. Those cases likewise
were dismissed. Finally, Plaintiff filed another civil action, Case No. 11-13090, and filed an
application to proceed in forma pauperis. Although the Court found that Plaintiff lacked the
ability to pay the fees needed to commence a civil action, the Court found that the
complaint was barred by res judicata.
In its Motion to Dismiss, Wells Fargo advances several grounds for dismissal: res
judicata, lack of standing, failure to state a claim under HAMP, and that lack of prejudice
to Plaintiff resulting from the adjournment of the sheriff’s sale. The Court discusses the
merits below.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) allows a district court to dismiss a complaint
that fails “to state a claim upon which relief can be granted.” “This rule allows a defendant
to test whether, as a matter of law, the plaintiff is entitled to legal relief even if every
allegation in the complaint is true.” Tidik v. Ritsema, 938 F. Supp. 416, 421 (E.D. Mich.
1

World Savings Bank, FSB became Wachovia Mortgage, FSB, which
subsequently merged into Wells Fargo Bank, N.A.
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1996). Thus, when faced with a Rule 12(b)(6) motion to dismiss, a district court “must
construe the complaint in the light most favorable to the plaintiff, [and] accept all factual
allegations as true[.] In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir. 1993).
III. ANALYSIS
In addressing the merits of Defendant’s motion, the Court has reviewed several of
Defendant’s exhibits, which were not attached to the Complaint. Pursuant to Rule 12(d)
of the Federal Rules of Civil Procedure, the Court deems the exhibits to be central to
Plaintiff’s claims. See Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507, 514 (6th Cir.
1999) (finding insurance policies were not matters outside the pleadings because they were
referred to throughout the complaint and central to the claims).
The Court finds that the pending Complaint is barred by res judicata for the same
reasons that guided its analysis in Case No. 11-13090. The doctrine “is applicable to a
second suit involving the same cause of action that was raised in the first suit, and will bar
relitigation of issues which actually were or might have been presented before the court in
the first action.” Senior Accountants, Analysts, and Appraisers Ass’n v. City of Detroit, 231
N.W.2d 479, 481 (Mich. App. 1975). In other words, “[c]laim preclusion applies not only to
bar the parties from relitigating issues that were actually litigated but also to bar them from
relitigating issues that could have been raised in an earlier action.” J.Z.G. Resources, Inc.
v. Shelby Ins. Co., 84 F.3d 211, 214 (6th Cir. 1996) (emphasis in original).
The Court finds that res judicata bars this action because all of the elements are
met: “(1) the first action was decided on the merits, (2) the matter contested in the
[pending] action was or could have been resolved in the first, and (3) both actions involve
the same parties or their privies.” See Dart v. Dart, 586, 597 N.W.2d 82, 88 (Mich. 1999).
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Here, Plaintiff’s claims arise from the same transaction challenged in his first lawsuit, the
foreclosure of his mortgage and sheriff’s sale. Had Tatar exercised reasonable diligence,
he could have raised all of these claims. See Adair v. State, 680 N.W.2d 386, 396 (Mich.
2004). Further, the Court’s dismissal of Plaintiff’s claims against Wachovia in the previous
suit constitutes a final decision on the merits. Further, the dismissal applies not only to
Wachovia, but also to the defendant in this case--Wells Fargo, as they are the “same
parties or their privies.” WSF became Wachovia, which subsequently merged into Wells
Fargo. (See Doc. No. 4, Exs. 9 and 10.)
In sum, the propriety of the foreclosure had been litigated by Tatar against this
Defendant. To the extent that his claims here were not litigated to conclusion, they are
barred because they could have and should have been litigated. Bragg v. Flint Bd. of
Educ., 540 F.3d 775, 777 (6th Cir. 2009).
In addition, Wells Fargo asks the Court to issue an injunction to permanently enjoin
Plaintiff from filing additional lawsuits relating to the foreclosure. Certainly, this Court has
the authority to issue an injunctive order to require a prolific and vexatious litigant to meet
specified restrictions before filing a complaint. See Feathers v. Chevron U.S.A., Inc., 141
F.3d 264, 269 (6th Cir. 1998); Filipas v. Lemons, 835 F.2d 1145, 1146 (6th Cir. 1987).
Nevertheless, the Court does not find an injunction is warranted at this juncture. Although
Plaintiff has challenged the foreclosure on more than one occasion, the Court declines to
characterize his conduct as rising to the level of prolific or vexatious. Feathers, 141 F.3d
at 269. The Court does advise Plaintiff that additional lawsuits challenging the propriety
of the foreclosure process may result in sanctions.

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IV. CONCLUSION
For the reasons stated, Defendant’s Motion is GRANTED. Plaintiff's Complaint is
DISMISSED in its entirety.
IT IS SO ORDERED.

s/Marianne O. Battani
MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE
Dated:

November 2, 2012

CERTIFICATE OF SERVICE
Copies of this Order were served upon Plaintiff via ordinary U.S. Mail and Counself
for the Defendant via the Court’s ECF Filing System.

s/Bernadette M. Thebolt
Case Manager

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