Settle v. Bank of America N.A. et al

Filing 8

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 2 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $11.77 within thirty (30) days of the da te of this Order. Plaintiff is instructed to make his remittance payable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that plaintiff's request for additional time to establish the jurisdictional basis for this action [ECF No. 6 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall show cause within thirty (30) days of this Order why the Court should not dismiss this action for lack of jurisdiction. See Fed. R. Civ. P. 12(h)(3). ( Response to Court due by 12/19/2014.) Signed by District Judge Ronnie L. White on 11/19/2014. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KELVIN SETTLE,
Plaintiff,
v.

BANK OF AMERICA, N.A., et al.,
Defendants.

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No. 4:14-CV-1704-RLW

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Kelvin Settle (registration no. 26754044), an inmate at Duluth Federal Prison Camp, for leave to commence this action without
payment of the required filing fee. For the reasons stated below, the Court finds that plaintiff
does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing
fee of $11.77. See 28 U.S.C. § 1915(b)(l). Additionally, the Court will order plaintiff to show
cause why this action should not be dismissed for lack of jurisdiction.

28 u.s.c. § 1915(b)(l)
Pursuant to 28 U.S.C. § 1915(b)(l), a prisoner bringing a civil action in forma pauperis is
required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his or
her prison account to pay the entire fee, the Court must assess and, when funds exist, collect an
initial partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the
prisoner's account, or (2) the average monthly balance in the prisoner's account for the prior sixmonth period. After payment of the initial partial filing fee, the prisoner is required to make
monthly payments of 20 percent of the preceding month's income credited to the prisoner's
account. 28 U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these

monthly payments to the Clerk of Court each time the amount in the prisoner's account exceeds
$10, until the filing fee is fully paid. Id.
Plaintiff has submitted an affidavit and a certified copy of his prison account statement
for the six-month period immediately preceding the submission of his complaint. A review of
plaintiffs account indicates an average monthly deposit of $0, and an average monthly balance
of $58.87. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court
will assess an initial partial filing fee of $11. 77, which is 20 percent of plaintiffs average
monthly balance.
28 U.S.C. § 1915(e)

Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint filed in forma
pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is immune from such relief. An action is
frivolous if it "lacks an arguable basis in either law or fact." Ne itzke v. Williams, 490 U.S. 319,
328 (1989); Denton v. Hernandez, 504 U.S. 25 , 31 (1992). An action is malicious if it is
undertaken for the purpose of harassing the named defendants and not for the purpose of
vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63 (E.D.N.C. 1987),
aff'd 826 F.2d 1059 (4th Cir. 1987). A complaint fails to state a claim if it does not plead
"enough facts to state a claim to relief that is plausible on its face ." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
Discussion

Plaintiff brings this action against defendants Bank of America, N.A. and Millsap &
Singer, P.C., alleging that defendants violated Article 9 of the Uniform Commercial Code
("Article 9"), committed the tort of conversion, and violated the doctrine of accord and
satisfaction by selling a parcel of real property in an unauthorized sale despite plaintiff

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purportedly holding ·a "security interest lien" on the property, and exercising dominion and
control over the property.
Putting aside for a moment the fact that both Article 9 and the tort of conversion
generally apply to personal property, as opposed to real property, 1 and the fact that plaintiff's
accord and satisfaction claim is premised on his action in purportedly paying off a principal
obligation on his mortgage of approximately $35,500 by mailing the lender a check for $470.79
and writing on the back of the check that it constituted payment in full, 2 the Court notes that
plaintiff has failed to state the jurisdictional grounds for filing this action in federal court.
Plaintiff does not set forth any laws or constitutionally protected rights that defendants allegedly
violated. See 28 U.S.C. § 1331. Further, plaintiff has not alleged diversity of citizenship and the
amount in controversy is unspecified. 3 See 28 U.S.C. § 1332.

1

See IA MoPRAC § 25.2 ("Article 9 generally applies to any interest (regardless of its form) in
personal property and fixtures, which is created by contract and secures the payment or other
performance of an obligation."); White v. Fed. Home Loan Mortg. Corp., 2013 U.S. Dist. LEXIS
51119, at *9 (W.D. Mo. Feb. 12, 2013) (noting that "Article 9 ... expressly states that it 'does
not apply to ... [t]he creation or transfer of an interest in or lien on real property."') (quoting
Mo. Rev. Stat. § 400.9-109(d)(l 1)); Columbia Mut. Ins. Co. v. Long, 258 S.W.3d 469, 476 (Mo.
Ct. App. 2008) ("Missouri cases establish that the tort of conversion is the unauthorized
assumption of the right of owriership over the personal property of another to the exclusion of the
owrier's rights.") (internal citation and quotation marks omitted).
2

Plaintiff argues that "[p ]ursuant to the doctrine of accord and satisfaction, where a debtor sends
a check and at that time informs the creditor that he intends the check to be consider [sic] full
payment then, by the acceptance and cashing of the check, the creditor agrees to the settlement,
and cannot therefore seek additional compensation." However, for the doctrine of accord and
satisfaction to apply, the tender of the instrument to the claimant must be made in "good faith,"
and the amount of the claim must be "unliquidated or subject to a bona fide dispute." R.S. Mo. §
400.3-31 l(a)(i)-(ii).
Plaintiff's claim that Bank of America was unresponsive to his
communication disputing his mortgage contract agreement based on media reports that Bank of
America reached a $10 billion settlement with Fannie Mae for improper mortgage handling is
clearly insufficient to give rise to a set of circumstances in which the doctrine of accord and
satisfaction would be applicable.

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Further, the Rooker-Feldman doctrine provides that a federal district court lacks
jurisdiction to consider a claim which "in effect constitutes a challenge to a state court decision."

Ballinger v. Culotta, 322 F.3d 546, 548 (8th Cir. 2003) (citing District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923)). This is so because federal district courts "exercise original, not appellate, jurisdiction."

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283 (2005). Indeed, if a state
trial court erred, its judgment is not void, but rather is to be reviewed and corrected by the
appropriate state appellate court, and recourse to the federal level is limited solely to an
application for a writ of certiorari to the United States Supreme Court. See Weekly v. Morrow,
204 F.3d 613, 615 (5th Cir. 2000) (internal citations omitted).
Within the Eighth Circuit, the Rooker-Feldman doctrine forecloses not only
straightforward appeals, but also more indirect attempts by federal plaintiffs to undermine state
court decisions. Lemons v. St. Louis Cnty., 222 F.3d 488, 492 (8th Cir. 2000). Accordingly,
courts are prohibited from exercising jurisdiction over claims that are "inextricably combined"
with specific claims already adjudicated in state courts. See id. at 492-93 . "A general federal
claim is inextricably intertwined with a state court judgment 'if the federal claim succeeds only
to the extent that the state court wrongly decided the issue before it."' Id. at 493 (quoting

Pennzoil Co. v. Texaco, Inc., 481U.S.1, 25 (1987) (Marshall, J., concurring)).
Plaintiff brought an action in state court seeking to enjoin the sale of the same parcel of
property on the same grounds he raises here. Settle v. Bank of America, et al., Case No. 1422CCQ9329 (22nd Judicial Circuit, St. Louis City).

After holding a hearing, the state court

dismissed the action on the defendants' motion.

3

Plaintiff makes several references to a $1,000,000 lien on the parcel of real property. However,
the documents which plaintiff submitted to evidence the lien refer to plaintiff as both the creditor
and debtor, and are largely incomprehensible.
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Because plaintiff is proceeding pro se and in forma pauperis, the Court will grant his
request for additional time to establish the jurisdictional basis for this action, and will dismiss the
action if he fails to properly do so.
Accordingly,

IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.

IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $11.77
within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance
payable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) his
prison registration number; (3) the case number; and (4) that the remittance is for an original
proceeding.

IT IS FURTHER ORDERED that plaintiffs request for additional time to establish the
jurisdictional basis for this action [ECF No. 6] is GRANTED.

IT IS FURTHER ORDERED that the plaintiff shall show cause within thirty (30) days
of this Order why the Court should not dismiss this action for lack of jurisdiction. See Fed. R.
Civ. P. 12(h)(3).

Dated this 19th day of November, 2014.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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