Davis v. Countywide/Bank of America

Filing 11

MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [DOC. 7] AND DISMISSING CASE. Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PHILIP DAVIS, JR.,
Plaintiff,
vs.

Case No. 17-10614

COUNTRYWIDE HOME LOANS
a/k/a BANK OF AMERICA,

HON. AVERN COHN

Defendants.
__________________________________/
MEMORANDUM AND ORDER
GRANTING DEFENDANTS’ MOTION TO DISMISS (Doc. 7)
AND
DISMISSING CASE1
I. Introduction

Plaintiff Philip Davis Jr., proceeding pro se, filed a complaint naming
“Countrywide Home Loans aka Bank of America” as defendants. As best as can be
gleaned, plaintiff alleges that defendants have engaged in fraudulent and deceptive acts
and also discriminated against plaintiff on the basis of his race. As will be explained,
this is plaintiff’s fifth in a series of lawsuits brought in several jurisdictions against
defendants challenging the mortgage and defendants bad practices. All of plaintiff’s
prior lawsuits have been dismissed.
Before the Court is defendants’ motion to dismiss. (Doc. 7). For the reasons that
follow, defendants’ motion will be granted and the case will be dismissed.
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Upon review of the parties’ papers the Court deems this matter appropriate for
decision without oral argument. See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2).

In light of plaintiff’s history of filing multiple lawsuits challenging the mortgage, the
Court will enter a separate order enjoining plaintiff from filing any further lawsuits in this
district regarding this subject matter without leave of court.2
II. Background
A. Plaintiff’s Loan Transactions
On May 2, 2003, plaintiff obtained a loan in the amount of $159,150.00 (First
Loan) from Quicken Loans, Inc. to finance the purchase of residential property in
Redford, Michigan. As security for the First Loan, plaintiff granted a mortgage in favor
of Mortgage Electronic Registration Systems, Inc. (MERS) solely as nominee for the
Lender and Lenders successors and assigns (the 2003 Mortgage). The 2003 Mortgage
was recorded with the Wayne County Register of Deeds on June 25, 2003.
On January 11, 2008, plaintiff refinanced the First Loan through a loan in the
amount of $165,886.00 (the Refinanced Loan) from Security Atlantic Mortgage Co. Inc.
(Security Atlantic). As security for the Refinanced Loan, plaintiff granted a mortgage in
favor of MERS solely as nominee for the Lender and Lenders successors and assigns
(the 2008 Mortgage) on the property. The 2003 Mortgage was discharged by MERS on
February 2, 2008. The Discharge was recorded in the Wayne County Register of
Deeds. Security Atlantic assigned the 2008 Mortgage to Bank of America, N.A. (BANA)
by an assignment dated July 2, 2012 and recorded with the Wayne County Register of
Deeds. BANA then assigned the 2008 Mortgage to Nationstar Mortgage, LLC by

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In their motion to dismiss, defendants stated an intention to file a motion asking
to enjoin plaintiff. Rather than have defendants expend more resources, the Court will
enter the order.
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Assignment dated July 16, 2013 and recorded with the Wayne County Register of
Deeds.
B. Procedural History
1. Plaintiff’s Bankruptcy
On June 29, 2004, plaintiff filed for Chapter 13 bankruptcy in the United States
Bankruptcy Court for the Eastern District of Michigan, case no. 04-58347. On March
20, 2008, the Chapter 13 Trustee issued a Final Report and Account and the
bankruptcy was closed by order of the Bankruptcy Court.
2. Plaintiff’s First Lawsuit - Wayne County Circuit Court
On May 1, 2008, plaintiff, through counsel, filed suit in the Wayne County Circuit
Court against Countrywide Home Loans, Inc., Rock Financial Corporation and Security
Atlantic. Davis v. Countrywide, case no. 08-111203-CH (Wayne County Cir. Ct) (the
State Court Lawsuit) relating to his First Loan and 2003 Mortgage. Plaintiff asserted
claims of wrongful foreclosure, breach of contract, violation of the Michigan Consumer
Protection Act, discrimination/violation of the Michigan Civil Rights Act, and violation of
the Fair Debt Collection Practices Act. Id. Plaintiff also alleged that during the course of
his Chapter 13 bankruptcy his mortgage payments increased and he was treated
unfairly by the bankruptcy court. On November 7, 2008, the Wayne County Circuit
Court granted summary disposition for defendants.
2. Plaintiff’s Second Lawsuit - E.D. Michigan
Four years later, on November 30, 2012, Plaintiff filed a second lawsuit relating
to the property in this district against Countrywide Home Loans a/k/a/ Bank of America.

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Davis v. Countrywide, case no. 12-15284 (E.D. Mich.).3 Again, plaintiff alleged
wrongdoing in connection with his First Loan, increased payments during his Chapter 13
bankruptcy proceeding, predatory lending and unfair treatment by the bankruptcy court.
Plaintiff also claimed emotional distress, financial distress, racial discrimination, civil
rights violations and pain and suffering.
The district court granted defendants’ motion to dismiss and dismissed the case
on September 16, 2013. See Doc. 17 in case no. 12-15284. The district court found
that “Davis’ current claims concern matters that were already decided – or should have
been raised – in the state court action. They are thus barred by the doctrine of claim
preclusion or res judicata” which “’bars a subsequent action between the same parties
when the evidence or essential facts are identical’” Id. at pg. 9. The district court also
found that Plaintiff was “barred from using this litigation to launch a collateral attack on
the bankruptcy proceedings.” Id. at pg. 10.
3. Plaintiff’s Third Lawsuit - N.D. Illinois Lawsuit.
Almost two years after the dismissal in this district, on June 26, 2015, plaintiff
filed essentially the same claims as in the instant lawsuit in the Northern District of
Illinois. Davis v. Countrywide, case no. 15-C-5719 (N.D. Ill.). The district court denied
plaintiff’s motion to proceed in forma pauperis, and the case was dismissed without
prejudice on August 18, 2015 when plaintiff failed to pay the filing fee.
4. Plaintiff’s Fourth Lawsuit - D. Oregon
Shortly after the dismissal in the Northern District of Illinois, plaintiff filed a fourth
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The case was assigned to Hon. Patrick J. Duggan. In light of Judge Duggan’s
subsequent retirement, the case was not reassigned.
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lawsuit on September 15, 2015 in the District of Oregon, Portland Division, against
Countrywide Home Loans a/k/a Bank of America” and asserted allegations relating to
the 2003 Mortgage, Chapter 13 bankruptcy proceeding, predatory lending, racial
discrimination. Davis v. Countrywide, case no. 15-01750 (D. Or.). The district court
dismissed the case with prejudice on January 24, 2017. The district court, adopting the
report and recommendation of a magistrate judge, found that the complaint “mirrors the
complaint filed in Michigan state court on May 1, 2008” where the court granted
summary judgment and dismissed plaintiff’s claims. Further, the district court found that
plaintiff’s case was a “‘de facto’ appeal” of the Michigan state court’s ruling in favor of
defendant and therefore under the Rooker-Feldman doctrine, it was divested of
jurisdiction and barred from awarding relief. Finally, the district court found that even if
the Rooker-Feldman doctrine did not apply, plaintiff’s claims were barred by the doctrine
of claim preclusion, which “prevents litigation of claims that were previously litigated to a
final judgment on the merits and the parties to the instant litigation are the same as the
parties to the prior litigation.” See Doc. 40 in case no. 15-01750.
5. Plaintiff’s Fifth Lawsuit - S.D.N.Y. (the Instant Lawsuit)
A little less than month after the dismissal in the District of Oregon, on February
14, 2017, plaintiff filed the instant lawsuit in the Southern District of New York against
“Countrywide Home Loans a/k/a Bank of America.” The New York district court
transferred the case to this district on February 27, 2017. As noted above, the instant
lawsuit involves the same claims as all of the prior lawsuits. Plaintiff also appears to
seek class action relief based on defendants’ alleged bad mortgage practices.

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III. Legal Standards
Defendants move to dismiss under Fed. R. Civ. P. 12(b)(1) and 12 (b)(6).
As to Rule 12(b)(1), in determining whether the Court has subject matter
jurisdiction of a claim under Fed. R. Civ. P. 12 (b)(1), the Court must assume that
plaintiff’s allegations are true and must construe the allegations in a light most favorable
to them. 3D Systems, Inc. v. Envisiontec, Inc., 575 F. Supp.2d 799, 802 (E.D. Mich.,
2008). Where subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff
has the burden of proving jurisdiction in order to survive the motion. Id.
As to Rule 12(b)(6) a complaint must be dismissed if it does not “contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). The plausibility standard
demands more than a “sheer possibility that a defendant has acted unlawfully.” Id.
Rather, for a claim to be facially plausible, a plaintiff must plead “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 1949. Rule 12(b)(6) motion tests the sufficiency of a
plaintiff’s pleading. Fed. R. Civ. P. 12(b)(6). The Court need not accept as true “legal
conclusions or unwarranted factual inferences.” In Re Packaged Ice Antitrust Litig., 723
F. Supp. 2d 987, 1002 (E.D. Mich. 2010) (quoting Directv, Inc. v. Treesh, 487 F.3d 471,
476 (6th Cir. 2007)).
In considering a Rule 12(b)(6) motion, a court may consider “matters of public
record,” such as documents recorded with the Register of Deeds, orders, and items
appearing in the record of the case, as well as documents that are referred to in the
complaint and are central to a plaintiff’s claims. Commercial Money Ctr. Inc. v. Illinois
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Union Ins. Co., 508 F.3d 327, 335 (6th Cir. 2007); Amini v. Oberlin College, 259 F.3d
493, 502 (6th Cir. 2001). If the plaintiff does not directly refer to a document in the
pleadings, but that document governs the plaintiff’s rights and is necessarily
incorporated by reference, then the motion need not be converted to one for summary
judgment. Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997)
IV. Analysis
Defendants first contend that the complaint is barred by the Rooker-Feldman
doctrine, as the district court in Oregon found. The Court agrees. The Rooker-Feldman
doctrine removes subject matter jurisdiction from federal district courts where a plaintiff
seeks review of a state court judgment. See Rooker v. Fidelity. Trust Co., 263 U.S.
413, 415–16 (1923); Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462,
482–86 (1983). Under this doctrine, lower federal courts lack jurisdiction to review a
case litigated and decided in state court. District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 482 & n.16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,
415-16 (1923); see also Anderson v. Charter Twp. of Ypsilanti, 266 F.3d 487, 492 (6th
Cir. 2001). This is true even in the face of allegations that “the state court’s action was
unconstitutional.” Feldman, 460 U.S. at 486, 103 S. Ct. at 1317; see also Blanton v.
United States, 94 F.3d 227, 233-34 (6th Cir. 1996). Review of final determinations in
state judicial proceedings can be obtained only in the United States Supreme Court. 28
U.S.C. § 1257; Feldman, 460 U.S. at 476, 103 S. Ct. at 1311.
Here, although the allegations in the instant lawsuit are difficult to discern, to the
extent Plaintiff alleges injury due to the state court’s dismissal of his lawsuit rather than
some “independent” claim, the complaint is barred by Rooker-Feldman.
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Defendants also argue that plaintiff’s claims are barred by res judicata because
they were already litigated (or could have been) to final judgment in multiple courts, a
finding both a district judge in this district and the district court in Oregon. The Court
agrees.
The doctrine of res judicata bars a subsequent suit between the same parties
when the evidence or essential facts remain the same. Eaton Co. Bd. of Co. Rd.
Comm’rs v. Schultz, 205 Mich. App. 371, 375 (Mich. App. 1994). In Michigan, res
judicata applies where (1) both actions involve the same parties or their privies, (2) the
former suit was decided on the merits, and (3) the issues in the second action were or
could have been resolved in the former one. Id. Michigan follows a “broad rule” of res
judicata which bars not only claims actually litigated in the prior action, but every claim
arising out of the same transaction which the parties could have raised but failed to do.
Id. at 585 (noting that the doctrine of res judicata applies in a subsequent action
between the same parties and “not only points upon which the court was actually
required by the parties to form an opinion and pronounce a judgment, but to every point
which properly belonged to the subject litigation, and which the parties, exercising
reasonable diligence, might have brought forward at the time.”).
Clearly, plaintiffs’ claims in the instant case are barred by the doctrine of res
judicata. Each of plaintiff’s prior lawsuits name Countrywide and/or BANA as entities
that serviced plaintiff’s mortgage loan for the property. The State Court Action and the
lawsuits in the Eastern District of Michigan and District of Oregon were decided on the
merits and the respective appeal periods have expired. Plaintiff’s claims in the instant
lawsuit, even what appears to be a new claim seeking class action relief based on
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defendants alleged bad mortgage practices, could have been resolved in any of the
previous actions, including the State Court Lawsuit because the claims in this lawsuit
arise out of the same mortgage loan and the same property that were at issue in the
prior lawsuits. The facts and circumstances surrounding the origination or servicing of
the mortgage loans and the closed bankruptcy proceeding have not changed and
plaintiff was able to raise all of these claims in his first lawsuit. As such, plaintiff’s claims
are barred under the doctrine of res judicata.
Defendants lastly contend that dismissal is appropriate even if the Court has
subject matter jurisdiction and res judicata does not bar plaintiff’s claims because the
complaint does not meet basic pleading standards and the claims are barred by the
applicable statute of limitations. The Court agrees.
The complaint is mostly comprised of a recitation of grievances about the
mortgage industry as a whole and an amalgam of complaints in his prior lawsuits. The
allegations are vague and unsupported that they do not satisfy basic pleading
requirements. See Fed. R. Civ. P. 8. For example, plaintiff states that “Defendant did
unilaterally and contrary to the sign [sic] agreement raise the monthly payments on the
home loan.” See Doc. 1, Complaint, at pg. 14. Plaintiff does not supply requisite details
to support this claim such as when the alleged conduct occurred, and does not identify
the “agreement” on which his claim is based. Rule 12(b)(6) requires that a complaint
“contain something more . . . than . . . a statement of facts that merely creates a
suspicion [of] a legally cognizable right of action.” Twombly, 127 S. Ct. at 1965, supra
(Plaintiff’s “obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more
than labels and conclusions . . .”). Thus, plaintiff’s claims are subject to dismissal under
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Rule 12(b)(6).
Moreover, the claims are time-barred. Michigan’s statute of limitations for breach
of contract is 6 years. M.C.L. § 600.5807(8). The statute of limitations for fraud is also
six years. M.C.L. § 600.5813 (“All other personal actions shall be commenced within
the period of 6 years after the claims accrue . . . .”). Each of the claims in the instant
lawsuit appear to relate back to the 2003 Mortgage, including the origination of 2003
Mortgage (predatory lending and discrimination), the alleged “unilateral” raising of
payments “contrary to the signed agreement,” and the claimed wrongdoing or
unfairness of the 2004-2008 bankruptcy proceeding. See Doc. 1, Complaint, at pg. 14.
Thus, the alleged wrongdoing all occurred at least 8-14 years prior to the filing of the
instant case. As such, the claims are long since time barred.
V. Conclusion
For the reasons stated above, defendants’ motion to dismiss is GRANTED. This
case is DISMISSED.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: April 27, 2017
Detroit, Michigan

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