Wicks v. Bank of New York Mellon et al

Filing 6

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis (Docket No. 2 ) is GRANTED. IT IS FURTHER ORDERED that this case is DISMISSED without prejudice. A separate order of dismissal will be entered herewith. IT IS FURTHER ORDERED that plaintiff's pro se motion for temporary restraining order (Docket No. 5 ) is DENIED as moot. IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith. Signed by District Judge Catherine D. Perry on 8/10/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JUANITA W. WICKS,
Plaintiff,
v.
BANK OF NEW YORK MELLON, et al.,
Defendants.

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No. 4:17-cv-1784-CDP

MEMORANDUM AND ORDER
This matter is before me upon the motion of plaintiff Juanita W. Wicks for leave to
proceed in forma pauperis in this civil action, filed pursuant to the Real Estate Settlement
Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq. The motion will be granted. In addition,
for the reasons discussed below, this case will be dismissed.
Legal Standard
Under 28 U.S.C. § 1915(e)(2), this Court is required to review a complaint filed in forma
pauperis and to dismiss it if it is frivolous, malicious, or fails to state a claim upon which relief
can be granted. A Court is also required to dismiss a case if it determines at any time that it lacks
subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3). “It is well established that standing is a
jurisdictional prerequisite that must be resolved before reaching the merits of a suit.” City of
Clarkson Valley v. Mineta, 495 F.3d 567, 569 (8th Cir. 2007) (citing McCarney v. Ford Motor
Co., 657 F.2d 230, 233 (8th Cir. 1981)); see also Lewis v. Casey, 518 U.S. 343, 349 n. 1 (1996)
(internal citations omitted) (standing “is jurisdictional and not subject to waiver”).

Background
The instant case is the second RESPA action plaintiff has filed in this Court. The first
began on February 22, 2016, when plaintiff filed a pro se complaint against Wells Fargo, Greg
A. Luber, and Bank of New York Mellon. See Wicks v. Wells Fargo, et al., Case No. 4:16-cv243-CDP (E.D. Mo. Apr. 1, 2016) (hereafter “Wicks 1”). Plaintiff filed the complaint on behalf
of herself and her husband, Feldon Wicks. She alleged that Wells Fargo, Greg Luber, and Bank
of New York Mellon acted unlawfully under RESPA by committing fraud in conjunction with a
mortgage on a home located at 1504 Hudson Road in St. Louis, Missouri. In an order dated
March 1, 2016, I noted that plaintiff apparently lacked standing to bring the action because she
was not a property owner or mortgagor on the Hudson Road property, and gave her the
opportunity to provide me with information that she had a legal interest in the property. On
April 1, 2016, I dismissed the complaint for lack of subject matter jurisdiction when plaintiff did
not provide such information. I also determined that plaintiff was impermissibly attempting to
represent another party in federal court. I take judicial notice of this record and my March 1,
2016 and April 1, 2016 orders. See Cravens v. Smith, 610 F.3d 1019, 1029 (8th Cir. 2010)
(quoting In re Papatones, 143 F.3d 623, 624 n. 3 (1st Cir. 1998) (“The court may take judicial
notice of its own orders and of records in a case before the court.”)); United States v. Morris, 451
F.2d 969, 972 (8th Cir. 1971) (The district court may take judicial notice of its own records).
The Complaint
In the instant complaint, plaintiff writes: “I’m refiling my case because Feldon F. Wicks
granted me ‘POA’ in May of this year (2017).” (Docket No. 1 at 6). Included in the complaint
is a copy of a Missouri Durable Power of Attorney executed by Feldon Wicks. (Id. at 11-16).
Feldon Wicks has not filed his own financial affidavit or motion for leave to proceed in forma

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pauperis, which he is required to do if he is pursuing this action on his own behalf, nor has he
signed the complaint as required by Rule 11 of the Federal Rules of Civil Procedure.
Plaintiff alleges that defendants committed fraud against Feldon Wicks in conjunction
with a mortgage on the 1504 Hudson Road property. Plaintiff does not claim to be the property
owner or a mortgagor on the property, but instead advances claims on behalf of Feldon Wicks.
For example, plaintiff writes that she intends to forward a letter to the U.S. Department of Justice
and the Consumer Financial Bureau concerning violations committed against Mr. Wicks in the
United States Bankruptcy Court. She also claims that Wells Fargo began returning Mr. Wicks’s
mortgage payments, and rejected applications for modification. Plaintiff alleges that Mr. Wicks
continues to have problems paying his mortgage, and that she was “refiling” her complaint
“because they are threatening Mr. Wicks with ‘foreclosure’ again.” (Id. at 9). As relief, plaintiff
states that she wants a civil trial, and “$2,000,000 for all we’ve been through trying to keep Mr.
Wicks in his home (1504 Hudson Rd; 63136).” (Id. at 5). Elsewhere in the complaint, plaintiff
states she wants “Mr. Wicks’s home to be granted to him ‘free and clear’ of any liabilities to any
entity.” (Docket No. 1 at 9).
On July 5, 2017, plaintiff filed a document entitled “Injunction.” Therein, plaintiff
claims that Mr. Wicks informed her that Bank of New York Mellon set a foreclosure date, but
that he had discovered, from his homeowner’s insurance company, that another lender may hold
the deed to his property. On July 10, 2017, plaintiff filed a pro se motion seeking a temporary
restraining order, alleging that Wells Fargo and Bank of New York Mellon “refused to talk to
us” and it was unknown which lender held the deed to the Hudson Road property. (Docket No. 5
at 2). Plaintiff claimed that the matter needed to be “cleared and explained to us because Mr.
Wicks told me he has a foreclosure date” scheduled. (Id.)

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Discussion
In Wicks 1, I determined that plaintiff lacked standing to bring a lawsuit relative to the
Hudson Road property because she had no legal interest in it. Here, she again brings suit relative
to the Hudson Road property without providing information that she has the necessary legal
interest. Instead, she states she is “refiling” the case because Feldon Wicks granted her power of
attorney. As in Wicks 1, I conclude that this case is subject to dismissal for lack of subject matter
jurisdiction because plaintiff has failed to demonstrate that she has a legal interest in the Hudson
Road property, and therefore that she has standing to bring this lawsuit. Fed. R. Civ. P. 12(h)(3);
Mineta, 495 F.3d at 569 (“It is well established that standing is a jurisdictional prerequisite that
must be resolved before reaching the merits of a suit”). Plaintiff is proceeding under the
mistaken belief that she can represent Feldon Wicks’s interests in federal court because he
granted her power of attorney.

Plaintiff is proceeding pro se in this matter, there is no

information upon which I can conclude she is a licensed attorney, and the allegations in the
complaint are for violations of Mr. Wicks’s rights.1 Federal law provides that “parties may plead
and conduct their own cases personally or by counsel . . .”. 28 U.S.C. § 1654. This means that
only licensed attorneys may represent other persons before this Court. Feldon Wicks’s grant of
power of attorney to plaintiff does not satisfy this requirement. The case is subject to dismissal
on this basis, as well.
Accordingly, for all of the foregoing reasons,
IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis (Docket No. 2) is GRANTED.

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There is no indication in the record that Feldon Wicks is a minor or incompetent person such that the appointment
of a guardian or counsel to represent his interests is warranted. See Fed. R. Civ. P. 17(c); see also Hartmann v.
Carrol, 882 F. Supp. 2d 742 (D. Del. 2012).

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IT IS FURTHER ORDERED that this case is DISMISSED without prejudice. A
separate order of dismissal will be entered herewith.
IT IS FURTHER ORDERED that plaintiff’s pro se motion for temporary restraining
order (Docket No. 5) is DENIED as moot.
IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
good faith.
Dated this 10th day of August, 2017.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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