Abiola v. Select Portfolio Servicing, Inc. et al

Filing 83

ORDER denying 74 Motion for Judgment and Sanctions; denying 76 Motion to Stay. Signed by District Judge Terrence G. Berg. (AChu)

Case 2:17-cv-13741-TGB-KGA ECF No. 83, PageID.995 Filed 01/19/23 Page 1 of 7

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AKIB ABIOLA,

2:17-CV-13741-TGB-KGA
Plaintiff,

vs.
SELECT PORTFOLIO
SERVICING, INC., DLJ
MORTGAGE CAPITAL, INC.,
and JPMORGAN CHASE BANK,
N.A.,
Defendants.

ORDER DENYING MOTION
FOR JUDGMENT AND
SANCTIONS (ECF NO. 74)
AND DENYING MOTION FOR
STAY (ECF NO. 76)

Self-represented Plaintiff Akib Abiola returns to the Court,
challenging the enforcement of a settlement agreement he entered into
in 2018. He has filed a Motion for Entry of Judgment and Sanctions
Against the Defendants (ECF No. 74) and a Motion to Stay the Court’s
December 19, 2022 Order Enforcing the Settlement Agreement (ECF No.
76). For the reasons below, these motions will be DENIED.
I.

BACKGROUND
The procedural history of this case is recounted at length in the

Court’s prior order. (ECF No. 75.) In short: Abiola sued Defendants over
a home he had purchased with his ex-wife, asking for damages and orders
compelling Defendants to allow him to modify his home loan and blocking
any attempts to foreclose on his home. The parties reached a settlement
in late 2018, in which Abiola agreed to vacate his home by January 4,
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2019 in exchange for two payments. Accordingly, the Court entered an
order dismissing and closing the case.
More than two years after Abiola was supposed to have vacated the
property, in July 2021, Defendants moved to enforce the settlement
agreement. (ECF No. 47.) They asserted that Abiola had accepted the
first settlement payment but remained in possession of the house. Abiola
responded that the agreement was invalid for several reasons—among
others, because Defendants misrepresented its terms (he did not
elaborate), and because Defendants had extended him other offers that
superseded and nullified it. (ECF Nos. 51, 53.)
The Court referred the motion to Magistrate Judge Kimberly G.
Altman, who recommended granting it. (ECF No. 59.) Unfortunately, her
recommendation was not properly served on Abiola. The deadline for
objections thus passed without any filings from him, and the Court
adopted the recommendation. (ECF No. 60.) When Abiola learned what
had happened, he filed belated objections. (ECF No. 61.) He also
submitted a number of other filings, accusing Defendants of fraud,
racism, and other misconduct, asking the Court to launch a criminal
investigation, and seeking an evidentiary hearing. (ECF Nos. 62, 65, 66.)
On December 19, 2022, after receiving Abiola’s objections, the Court
vacated its prior order to consider them. After reviewing the objections,
the Court overruled them and re-adopted the recommendation of
Magistrate Judge Altman. (ECF No. 75.) It also struck Abiola’s
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supplemental filings as procedurally improper and denied his request for
an evidentiary hearing, concluding that—while disputes remained over
the origination of Abiola’s loan—there were no facts left for the Court to
find concerning his entry into the settlement agreement. Noting that
Abiola had already referred his case to various government agencies, the
Court further explained that it lacked authority to order a criminal
investigation in a civil case.
Four days before the Court entered this order, on December 15,
Abiola submitted a “Motion for Entry of Judgment and Sanctions.” (ECF
No. 74.) In this filing, he repeated his arguments that the settlement was
“null and void.” He added that he had requested proof that Defendants’
counsel had authority to enter into the agreement in the first place but
had not received it. He also repeated his accusations that Defendants
were engaging in misconduct and, as a sanction, asked for the entry of a
$1,000,000 judgment against them.
After the Court entered its order, on December 29, Abiola filed a
motion to stay it or refer his case for mediation. (ECF No. 76.) Repeating
his accusations of fraud and adding additional allegations of misconduct,
he asserted that the stay was necessary to allow the government agencies
to which he had referred his case to complete their investigations into his
reports of fraud and other crimes unimpeded.
Then, on January 4, 2023, Abiola filed a notice of appeal from the
Court’s December 19, 2022 order. (ECF No. 77.)
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Defendants have not filed a response to Abiola’s Motion for
Judgment and Sanctions. But they have responded to Abiola’s Motion for
a Stay (ECF Nos. 79, 80), and Abiola has further filed a reply (ECF No.
81). The Court now addresses these two motions.
II.

Discussion
A. Motion for Judgment and Sanctions (ECF No. 74)
Because Abiola has filed a Notice of Appeal, the Court must begin

by determining whether it has jurisdiction to address this motion. The
filing of a notice of appeal generally divests a district court of jurisdiction
to act in a case, except on remedial matters unrelated to the merits of the
appeal. Fort Gratiot Sanitary Landfill, Inc. v. Mich. Dep’t of Natural Res.,
71 F.3d 1197, 1203 (6th Cir. 1995); see also Fed. R. Civ. P. 4(a)(4).
The central focus of Abiola’s motion are his arguments that the
settlement agreement is invalid and his accusations that Defendants and
their counsel are engaging in serious misconduct. The filing contains
fresh allegations of improprieties and a request for monetary sanctions
that Abiola has not previously made. These are not “remedial” matters;
they go to the very heart of Abiola’s appeal, which concerns whether the
settlement is enforceable. The Court cannot decide them without
expanding its prior order and infringing on the Sixth Circuit’s appellate
jurisdiction. See N.L.R.B. v. Cincinnati Bronze, 829 F.2d 585, 588 (6th
Cir. 1987). The motion is therefore DENIED without prejudice.

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B. Motion for Stay (ECF No. 76)
Abiola asks for an indefinite stay to “allow the government agencies
[to which he has referred his case] to conduct their investigations [of his
reports of fraud and other crimes] unimpeded”—or for the Court to refer
his case to mediation. (ECF No. 76, PageID.964-65.) He does not discuss
his likelihood of success on appeal.
Defendants respond that Abiola has no authority supporting his
proposition that the Court should stay enforcement of its order to allow
other government branches to investigate a matter he has now litigated
and lost. (ECF Nos. 79, 80.) They ask for attorneys’ fees incurred in
responding to the motion, as well as an order enjoining Abiola from
further filings in this case.
Under Federal Rule of Appellate Procedure 8(a), a party seeking to
stay a district court order pending an appeal must first make its request
in the district court.1 A court evaluating such a request considers the
same four factors that are typically considered in evaluating a motion for
a preliminary injunction: (1) the likelihood that the party the party will
prevail on the merits; (2) the likelihood that the party will be irreparably
harmed without a stay; (3) the prospect that others will be harmed if the
court grants a stay; and (4) public interest. Mich. Coalition of Radioactive

The Court acknowledges that Abiola moved for a stay before he filed a
notice of appeal. In light of his pending appeal, the Court will construe
his filing as a motion under Federal Rule of Appellate Procedure 8.
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Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). The
party seeking the stay has the burden of demonstrating its entitlement
to the stay. SIEU Local 1 v. Husted, 698 F.3d 341, 342 (6th Cir. 2012).
Abiola has failed to demonstrate his entitlement to a stay. With
respect to the first stay consideration, the Court does not see a reasonable
likelihood of reversal on appeal. Abiola admits that he accepted the first
settlement payment check but failed to move out, which he was
unambiguously required to do by the terms of the agreement. And his
arguments that Defendants’ post-settlement actions nullified the
settlement and that the Court lacks jurisdiction to enforce the agreement
have already been twice rejected.
As for the second consideration, loss of unique property is certainly
a serious harm. Yet under the terms of the settlement agreement Abiola
was supposed to have vacated it over four years ago.
As for the third and fourth considerations, the Court concludes that
Defendants in this case and public policy would both be harmed by
granting a stay. Abiola has extended by over four years his stay at a
property that he agreed to surrender to Defendants. It is not clear what,
if any, payments he has made on the property during this time. To be
sure, it is in the public interest to allow investigations of alleged
mortgage fraud. But Abiola has been disputing his loan for many years
and has already once purported to settle his claims against Defendants.

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Public policy is not well served by allowing litigants to escape their
obligations under a settlement agreement at the first feeling of remorse.
Abiola’s Motion for a Stay is thus DENIED. He remains free to seek
a stay from the Sixth Circuit. See Fed. R. App. P. 8(a)(2). The Court notes
that, under Federal Rule of Civil Procedure 62(a), the December 19, 2022
order was automatically stayed for 30 days after entry.
In light of Abiola’s self-represented status and his pending appeal,
the Court does not find that an award of attorneys’ fees is appropriate.
Since the matter is now pending in the Sixth Circuit, however, Abiola is
WARNED that any additional filings submitted to this Court during the
pendency of his appeal will be viewed as repetitive and harassing. See
Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 269 (6th Cir. 1998).
III. Conclusion
For the reasons explained above, Abiola’s Motion for Judgment and
Sanctions (ECF No. 74) is DENIED. His Motion to Stay the Court’s
December 19, 2022 Order (ECF No. 76) is also DENIED.
IT IS SO ORDERED, this 19th day of January, 2023.
BY THE COURT:
/s/Terrence G. Berg
TERRENCE G. BERG
United States District Judge

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