Behrens v. GMAC Mortgage, LLC

Filing 25

MEMORANDUM AND ORDER - IT IS ORDERED: The plaintiff's motion for status (filing 24 ) is denied. The plaintiff's motion to amend (filing 23) is granted. The plaintiff's complaint (filing 1 ) and amended complaint (filing 22 ) are dismissed. All claims having been dismissed, this case is terminated. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRYAN BEHRENS,
Plaintiff,
vs.

8:13-CV-72
MEMORANDUM AND ORDER

GMAC MORTGAGE, LLC,
Defendant.
This matter is before the Court on several documents filed by the
plaintiff, Bryan Behrens. But more importantly, the matter is before the
Court on its own initial preservice review of the plaintiff's complaint. In its
Memorandum and Order of August 28, 2013 (filing 20), the Court noted
defects in the plaintiffs' complaint calling the Court's jurisdiction into
question. The Court gave the plaintiff until October 4, 2013, to file documents
remedying the defects identified by the Court. See filing 20 at 3.
The plaintiff has responded by filing two effectively identical
documents, one of which has been docketed as an amended complaint (filing
22) and the other of which has been docketed as a motion to amend (filing
23).1 The plaintiff has also filed a motion for status (filing 24), asking for a
copy of the docket and summons issued in this case. The Court will grant the
motion to amend, to the extent that the Court will consider the allegations
and information contained in the plaintiff's supplementary filings in
determining whether the plaintiff has stated a federal claim for relief. But as
explained below, the Court finds that the plaintiff has not stated a federal
claim for relief, and therefore will dismiss the plaintiff's complaints. The
plaintiff's motion for status will be denied as moot, after the Court clarifies
for the plaintiff the procedural posture of the case.

It is not entirely clear what the plaintiff intended them to be: the plaintiff was directed to
file an amended complaint, but his responses show little regard for the pleading
requirements of Fed. R. Civ. P. 8(a). It would be within the Court's discretion to strike the
plaintiff's filings as noncompliant with Rule 8, or simply not to construe either as an
amended complaint in the first place—and, as a result, dismiss this case for failing to
comply with the Court's previous instructions. See, e.g., Mangan v. Weinberger, 848 F.2d
909, 911 (1988); Michaelis v. Neb. State Bar Ass'n, 717 F.2d 437, 438-39 (8th Cir. 1983). But
from an excess of caution, the Court will evaluate the merits of the plaintiff's "pleadings."
1

1. MOTION FOR STATUS
The plaintiff's motion for status reflects a misapprehension about the
procedural posture of the case. The plaintiff's motion requests "a copy of the
docket and also the summons that was issued by the Court. . . ." Filing 24 at
2. Summons has not been issued—as the plaintiff was informed by the
Court's Memorandum and Order of August 28, 2013 (filing 20), it is the
Court's practice to conduct an initial review of the complaint to determine if
dismissal is appropriate pursuant to 28 U.S.C. § 1915(e). See also, e.g.,
Barnett v. Bryce's Bail Bonding, Inc., 2013 WL 5646058, at *1 (8th Cir. Oct.
17, 2013); Pomerenke v. Bird, 491 Fed. Appx. 778, 779 (8th Cir. 2012).
The plaintiff is asking for copies of documents that do not exist, because
service of process is still pending preservice review.2 And, as will be explained
below, the case will not survive preservice review. So, the plaintiff's motion
for status will be denied as moot.
2. PRESERVICE REVIEW
The Court's previous order on initial review, its Memorandum and
Order of August 28, 2013 (filing 20), directed the plaintiff to address several
defects in his pleading. The Court observed the likelihood that the plaintiff's
request for injunctive relief was moot. Filing 20 at 1-2. The plaintiff has
responded to that observation by requesting money damages. That, at least,
is not moot. But the Court also directed the plaintiff to establish his standing
to pursue his claims, and allege facts stating a claim for relief under the
federal statutes identified in his complaint. Filing 20 at 2-3.
In response, the plaintiff's filings assert that the Court's jurisdiction "is
invoked under 15 USC 1692k(d) and 28 USC 1331, 1343." Filing 22 at 2. 15
U.S.C. § 1692k is, as will be discussed below, part of the Fair Debt Collection
Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p. Title 28 U.S.C. § 1331, of
course, is the basis for the Court's federal question jurisdiction. And 28
U.S.C. § 1343 provides for the Court's original jurisdiction in civil rights
actions. In sum, the plaintiff contends that the Court has jurisdiction over his
claims because he is claiming violations of federal law.3 So, the question is
whether he has stated a claim for such a violation.
The plaintiff seems to criticize this practice, characterizing it as an "'abuse of process'" and
complaining that he cannot find caselaw prohibiting the Court from ruling on his motion
prior to payment of fees. Filing 22 at 4. But a district court may, by rule, require
prepayment of filing fees. 28 U.S.C. § 1914(c). This district has done so. NEGenR 1.2(d);
NECivR 3.2. And even after the initial partial filing fee imposed by 28 U.S.C. § 1915(b)(1) is
paid, the practice of preservice dismissal pursuant to 28 U.S.C. § 1915(e) is well
established. See, e.g., Barnett, 2013 WL 5646058, at *1; Pomerenke, 491 Fed. Appx. at 779.
2

The plaintiff's recent filings contain no suggestion of diversity jurisdiction pursuant to 28
U.S.C. § 1332. To the extent that his original complaint can be read to provide a basis for
3

-2-

The Court is aware of its obligation to liberally construe pro se
pleadings. See Whitson v. Stone County Jail, 602 F.3d 920, 922 n.1 (8th Cir.
2010). Liberally construed, the plaintiff's pleadings can be read to assert
violations of three federal laws: (1) the FDCPA, (2) this Court's stay in case
no. 8-cv-13, and (3) the plaintiff's constitutional rights as enforced pursuant
to 42 U.S.C. § 1983. The Court will address each in turn.
(a) The FDCPA
In his original complaint, the plaintiff alleged that the defendant had
violated the FDCPA by not notifying him of the pending sale of his mortgaged
property. Filing 1 at 1-2. The Court previously observed that the FDCPA does
not apply to a creditor attempting to collect its own debts, as opposed to a
third party collection agency. See filing 20 at 2 (citing 15 U.S.C. § 1692(6);
Marshall v. Deutsche Bank Nat. Trust. Co., 445 Fed. Appx. 900, 901 (8th Cir.
2011)). In response, the plaintiff alleges that the defendant, as a mortgage
servicer, is not attempting to collect its own debt. Filing 22 at 1.
Generally, however, a mortgage servicer is not held to be a "debt
collector" within the meaning of the FDCPA either. See, Carter v. AMC, LLC,
645 F.3d 840, 843 (7th Cir. 2011); Allen v. Bank of Am., N.A., 933 F. Supp. 2d
716, 729 (D. Md. 2013); Casault v. Fed. Nat'l Mortg. Ass'n, 915 F. Supp. 2d
1113, 1126 (C.D. Cal. 2012); Caraang v. PNC Mortg., 795 F. Supp. 2d 1098,
1123 (D. Haw. 2011); Ruggia v. Washington Mut., 719 F. Supp. 2d 642, 648
(E.D. Va. 2010). But the application of that proposition in this case is
somewhat murkier, because of the possibility that the alleged current
lienholder, U.S. Bank, acquired the plaintiff's mortgage after it was in
default—raising the possibility that it (and by extension its agents) might be
"debt collectors" within the meaning of the FDCPA. See Caraang, 795 F.
Supp. 2d at 1123; see also Allen, 933 F. Supp. 2d at 729. And there is at least
an open question as to whether mortgage foreclosure is debt collection within
the meaning of the FDCPA. See generally Donnelly-Tovar v. Select Portfolio
Servicing, Inc., 2013 WL 791153, at *6-7 (D. Neb. Mar. 4, 2013); but cf. James
v. Ford Motor Credit Co., 47 F.3d 961, 962 (8th Cir. 1995).
That having been said, there is a more fundamental problem with the
plaintiff's claim, and it is one that the Court has no reason to believe can be
such jurisdiction, see filing 1 at 1, it is unavailing, for two reasons. First, the defendant in
the plaintiff's original complaint is "GMAC Mortgage, LLC," which is alleged to be a New
York corporation. Filing 1 at 1. But the defendant in the plaintiff's "amended complaint" is
said to be "Ocwen Loan Servicing LLC," and Ocwen's citizenship is not alleged. See filing 22
at 4. Second, even if diversity was established, the Court can find no sufficiently stated
claim for relief under state law in any of the plaintiff's pleadings. Nor would the Court be
permitted to entertain a collateral attack on a state-court foreclosure proceeding. See
Postma v. First Fed. Sav. & Loan of Sioux City, 74 F.3d 160, 162 (8th Cir. 1996).

-3-

remedied: nowhere in the pleadings does he allege any conduct by the
defendant that can even be liberally construed as violating the FDCPA. The
FDCPA is intended to eliminate abusive debt collection practices. See 15
U.S.C. § 1692(c). To that end, the FDCPA imposes many limitations and
requirements on debt collectors. It limits what a debt collector may reveal to
third parties while trying to collect a debt. See 15 U.S.C. § 1692b. It prohibits
harassing a consumer at work, or at unusual times or places. See 15 U.S.C. §
1692c. It prohibits abusive conduct by debt collectors, such as threatening
violence, public shaming, or anonymous telephone calls. See 15 U.S.C. §
1692d. It bars false representations to the consumer in connection with debt
collection. See 15 U.S.C. § 1692e. It prohibits "unfair or unconscionable"
means to collect a debt, such as undisclosed fees, or threatening the
nonjudicial seizure of collateral without a right of possession. See 15 U.S.C. §
§ 1692f. And it imposes requirements on what a debt collector must include
when communicating with a consumer about a debt. See 15 U.S.C. § 1692g.
But what the FDCPA emphatically does not do is impose notice
requirements on the foreclosure of a security interest. And the plaintiff's
claim, repeatedly asserted, is that the plaintiff was purportedly not given
proper notice of the foreclosure action on his real property. See filing 1 at 1-2;
filing 22 at 3-5. He does not claim to have been misled or injured by any of
the communications he did receive from the defendant.4 Even if the plaintiff
was not provided with proper notice of the pending foreclosure, there is
nothing in the FDCPA that regulates such conduct. Generally speaking,
foreclosure on a security interest in real property is a matter left to state law.
See Zajac v. Fed. Land Bank of St. Paul, 909 F.2d 1181, 1183 (8th Cir. 1990);
see also McNeill v. Franke, 171 F.3d 561, 564 (8th Cir. 1999). The FDCPA
does not change that in any way that is helpful to the plaintiff here.
The plaintiff does make repeated references to various sections of Title
12 of the United States Code. E.g. filing 22 at 6. He claims that "Federal
foreclosure laws are all governed under title 12 as approved and enacted by
Congress[.]" Filing 22 at 6. But, as in his initial complaint, he appears to be
conflating the FDCPA with the Single Family Mortgage Foreclosure Act, 12
U.S.C. §§ 3751-3768. Compare filing 22 at 6 with filing 1 at 1. And as
explained in the Court's previous order, that act only applies to foreclosure
The plaintiff does make a brief reference to the defendant's attorneys "provid[ing] false
and mis-leading [sic] information to the Iowa District Court, Pottawattamie County,"
purportedly in violation of 15 U.S.C. § 1692e. Filing 22 at 10. But the supposed "false
information" was, as best the Court can tell, not obtaining leave to proceed with foreclosure
from this Court in case no. 8-cv-13. It is unclear how that is a false representation within
the meaning of 15 U.S.C. § 1692e. And more fundamentally, with the limited exception of
credit reporting, 15 U.S.C. § 1692e only applies to false representations made to the
consumer. See Volden v. Innovative Fin. Sys., 440 F.3d 947, 954 (8th Cir. 2006).
4

-4-

proceedings instituted by the Secretary of Housing and Urban Development
on property held by or subject to a loan guaranteed by the Secretary. See
filing 20 at 2 (citing 12 U.S.C. § 3752(10); Termarsch v. Homeq Servicing Co.,
399 F. Supp. 2d 827, 829 (W.D. Mich. 2005)). There is nothing to suggest that
the property at issue at this case is such a property.
In sum, the plaintiff has not stated a claim for relief under the FDCPA,
nor is there any reasonable possibility that he could state such a claim.
Whether the plaintiff received proper notice of the defendant's foreclosure
action is determined under state law, not the FDCPA.
(b) Receivership Stay
In its previous order, the Court questioned the plaintiff's standing to
enforce the receivership stay. The Court explained that the stay was not
entered for the plaintiff's benefit; rather, it was entered to protect the
receivership's assets and preserve them for receivership purposes. As a
result, the Court suggested that the receiver, not the plaintiff, was the real
party in interest with respect to the real property at issue. See filing 20 at 2
(citing First State Bank of N. Cal. v. Bank of Am., N.T. & S.A., 618 F.2d 603,
604 (9th Cir. 1980)).
The plaintiff asserts several things in response. He contends that he
has a stake in the outcome of what happens to the property because he would
be liable for any remaining debt after the receivership is wound up. Filing 22
at 6-7. He also claims a "marital stake" in his wife's property interests, and
asserts the personal property rights of his minor children, with respect to
personal property allegedly present on the property. Filing 22 at 7. And he
simply disagrees with the Court's statement that the receivership stay was
not entered for his benefit, pointing to the fact that he was covered by the
stay as a receivership entity. Filing 22 at 8. He then sets forth a variety of
propositions (some more applicable than others) discussing the power to
dispose of property that is subject to a receivership.5 Filing 22 at 8-10.
The plaintiff's argument is, at its heart, self-contradictory. The
property at issue was either a receivership asset, or it wasn't. If it was, then
the receiver was empowered to "take immediate possession and control" of it
and dispose of it accordingly, and the plaintiff's remaining possessory interest
was functionally extinguished. See case no. 8:8-cv-13 filing 85 at 4. If the
property was not a receivership asset, then the plaintiff (or his family) might
retain an interest—but then, the receivership stay is out of play. The Court
The Court agrees as a general proposition that a federal court has jurisdiction to prevent a
state court action from contravening a decree that it has previously entered. See, Ark. Blue
Cross & Blue Shield v. Little Rock Cardiology Clinic, P.A., 551 F.3d 812, 817 (8th Cir.
2009). That is not the question. Rather, the question is whether the plaintiff is the proper
person to ask for such relief, particularly in a collateral proceeding.
5

-5-

notes that the plaintiff does not ask to have the property or its proceeds
transferred to the receiver—rather, he is seeking to have the property
returned to him, and money damages for himself on top of that. Filing 22 at
12. The relief sought in this case is inconsistent with the premise that the
property is a receivership asset. Simply put, the plaintiff cannot
simultaneously assert a right to possess property and claim that the same
property is a receivership asset: both cannot be true.
The plaintiff argues that for the Court to state that the receivership
stay was "not intended to protect Bryan Behrens as an individual from
lititgation [sic] civil and or criminal would be a blattent [sic] mis carraige [sic]
of Justice and a direct mis interpretation [sic] of the orders." Filing 22 at 8.
But the receivership stay is a product of this Court's orders, and it is the
Court's place to say what they mean. And the plaintiff is missing the point:
the purpose of the receivership stay was not to preserve the plaintiff's assets
for the plaintiff's benefit. Rather, it was to preserve the plaintiff's assets for
the receivership so that the receiver could use them to pay back the people
from whom the plaintiff stole. In other words, the stay was not meant to
make sure that no one could take the plaintiff's property away from him—it
was meant to establish a procedure to ensure that the plaintiff's property was
taken from him, to compensate his victims.
Nor can the plaintiff rely on any purported property interests of his
wife or children. The Court notes that in his latest filings, the plaintiff
purports to bring suit on his own behalf and on behalf of his wife and minor
children. See filing 22 at 1. But it is well established that a pro se party may
not represent others, even when it is a parent purporting to represent his
minor children. See, Myers v. Loudoun Cty. Pub. Sch., 418 F.3d 395, 400-01
(4th Cir. 2005); Johns v. Cty. of San Diego, 114 F.3d 874, 876-77 (9th Cir.
1997); Osei-Afriyie v. Med. Coll. of Penn., 937 F.2d 876, 882-83 (3d Cir. 1991);
Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.
1990); Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986); cf. United States
v. Agofsky, 20 F.3d 866, 872 (8th Cir. 1994). The plaintiff cannot rely on the
standing (if any) of others.
In short, if the Iowa foreclosure contravenes the receivership stay, then
it is the receiver who must object. If the plaintiff (or any of the receivership
claimants) believes the receiver is performing inadequately, then they should
take that up with the receiver, in the receivership proceeding. But it would be
utterly untenable for anyone with an arguable financial stake in a
receivership to be authorized to unilaterally and independently file collateral
cases purporting to assert receivership rights.

-6-

(c) 42 U.S.C. § 1983
The plaintiff also claims that this action "arises under the Fourth, Fifth
and Fourteenth Amendments to the United States Constitution and more
particularly under 42 USC 1983." Filing 22 at 2. The plaintiff makes repeated
reference to purported "due process" violations by the defendant. Filing 22,
passim. This claim is easily disposed of. To state a claim under 42 U.S.C. §
1983, a plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law. West
v. Atkins, 487 U.S. 42, 48 (1988). The traditional definition of acting under
color of state law requires that the defendant in a § 1983 action have
exercised power possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law. Id. at 49.
And a private party's mere invocation of state legal procedures does not
constitute action under color of state law. Youngblood v. Hy-Vee Food Stores,
Inc., 266 F.3d 851, 855 (8th Cir. 2001); Miller v. Compton, 122 F.3d 1094,
1098 (8th Cir. 1997). "[P]rivate misuse of a state statute does not describe
conduct that can be attributed to the State[.]" Lugar v. Edmondson Oil Co.,
Inc., 457 U.S. 922, 941 (1982). The plaintiff does not claim that Iowa law is
unconstitutional—at best, he claims that it has been misused or abused, and
that does not present a valid cause of action under § 1983. Lugar, 457 U.S. at
942; see also, Hassett v. Lemay Bank & Trust Co., 851 F.2d 1127, 1129-30
(8th Cir. 1988); Roudybush v. Zabel, 813 F.2d 173, 176-77 (8th Cir. 1987);
Higbee v. Starr, 698 F.2d 945, 946 (8th Cir. 1983).
(d) Leave to Amend
The plaintiff asks the Court "for latitude and opportunity to clarify and
or correct any defects in the motion to remedy these violations of Federal
Laws and award the relief sought." Filing 22 at 2. To the extent that the
plaintiff is seeking leave to further amend his complaint, his request will be
denied. While Fed. R. Civ. P. 15 is broadly construed to allow amendments,
the Court need not indulge in futile gestures. Geier v. Missouri Ethics Com'n,
715 F.3d 674, 678 (8th Cir. 2013). It is apparent, particularly when the
plaintiff's failure to remedy defects in his initial complaint is considered, that
any amendment here would be futile. The facts alleged by the plaintiff simply
do not state a claim for relief under federal law.
IT IS ORDERED:
1.

The plaintiff's motion for status (filing 24) is denied.

2.

The plaintiff's motion to amend (filing 23) is granted.
-7-

3.

The plaintiff's complaint (filing 1) and amended complaint
(filing 22) are dismissed.

4.

All claims having been dismissed, this case is terminated.

5.

A separate judgment will be entered.

Dated this 21st day of November, 2013.
BY THE COURT:

John M. Gerrard
United States District Judge

-8-