Schneider-Melicia et al v. Mixion et al

Filing 4

ORDER denying 3 Motion to Stay. This action is DISMISSED without prejudice for lack of subject-matter jurisdiction. Signed by District Judge Max O. Cogburn, Jr on 8/6/2018. (Pro se litigant served by US Mail.)(chh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:18-cv-00408-MOC-DSC *SEALED*
MICHAEL J. MELICIA
SUSAN A. SCHNEIDER-MELICIA,

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Plaintiffs,
Vs.
MARIE HAUER
JIM MIXION
DENNIS JOSEPH GILMORE
DALE FAUSS
ANDREW VINNING
ANDREW J. CECERE
MARIE SATTERFIELD
MICHAEL R. BOURQUE JR.
DAVID S. KREISMAN,
Defendants.

ORDER

THIS MATTER is before the court on pro se plaintiff’s Motion for Emergency Stay. In
such motion, plaintiffs contend that defendants have unlawfully moved forward with the
foreclosure sale of their property in state court, despite having removed that action to this court.
For relief, they ask this Court in the present motion to for an “EMERGENCY STAY on the sale
of our private abode and barring any further action by the Iredell County Court” until this matter
can be heard. Motion (#3) at 4. Plaintiffs’ motion and underlying Complaint suffer from a number
of problems, making both the instant motion and the Complaint subject to summary dismissal.
First, plaintiffs’ claim in the instant motion that the state court and defendants have
somehow acted ultra vires by proceeding with the state-court action after it was removed to federal
court finds no support in the record. The instrument plaintiffs filed with this Court on July 26,
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2018, is a pro se form captioned “Complaint and Request for Injunction.” Such is not captioned a
“Notice of Removal,” and nowhere in the document is it arguable that plaintiffs are attempting to
remove the action from state court. Rather, plaintiffs claim federal question jurisdiction in Section
II of their Complaint and go on to claim as a basis for jurisdiction that this is a Qui Tam action
under the False Claims Act, citing the United States Attorneys Manual as the source. Complaint
at § II. In their statement of claim, plaintiffs state as follows in relevant part:
Plaintiffs/realtors Schneider, Susan P. Melicia, a/k/a Susan A. SchneiderMelicia, relator in proper persona & Melicia, Michael Joseph, a/k/a Michael J.
Melicia, or any numeral or combination of the names used are Beneficiaries/Sole
Heirs. We have continued to settle the Matter privately & lawfully with the
Defendants but the Defendants continue to attempt to HARM the Beneficiaries, and
set court dates without having lawful standing or jurisdiction to do so while the
foreclosure case is under way, The defendants refuse to answer or show proof of
claim of debit or prove jurisdiction which has been requested multipliable times,
and moved in the Special Proceeding Court to foreclose on the property that has
been conveyed into the Private Express Trust, So there fore We are asking... Motion
to Move the court for a Permanent Injunction and enter a Default Judgment against
the Defendants for failure to show standing as a third party Debt collector under
oath.
***
Plaintiff /relator declares the debt pertaining to account/trust account no.
PLA 001042 BNC Mortgage Inc, sold to U.S. BANK N.A. (2007-2 mortgage passthrough certificate, series 2007-2), OCWEN LOAN SERVICES LLC trust account
no.7100746325 has been forgiven as stated to OCWEN FINANCIAL
CORPORATION & It's Subsidiaries., Defendant's, a debt collector for U.S. BANK
N.A. Plaintiff, in good faith and good conscience tendered a lawful, negotiable
instrument (RE346530609US) as per UCC laws to OCWEN LOAN SERVICES
LLC a subsidiary. Defendant, with intent and purpose to settle account/trust account
no.7100746325, release 'said' lien on the property and make all parties whole which
was delivered via USPS registered mail on 05 AUGUST 2016. to CFO office of
MCHAEL BROUQUE JR of OCWEN FINANCIAL CORPORATION.,
defendant, retained ownership of the negotiable instrument without settlement and
closure of account/trust account no.7100746325. Plaintiff has repeatedly requested
from MCHAEL BROUQUE JR, CFO for OCWEN FINANCIAL
CORPORATION, defendant. The return of the original, wet ink signature
negotiable instrument as well as validation of the outstanding debt prior to the
foreclosure notice on 22 March 2016. all actions of the defendant has violated UCC
laws, plaintiff/relator, in good faith and good conscience, has made many attempts
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to settle this matter and make all parties whole. Defendant has not responded to our
claim that they are HARMING and moving against Private Trust Estate within the
U.S TRUST Jurisdiction. Plaintiff can and will show proof by way of Sept 20, 2017
Certified Forensic Audit (available upon request) showing the defendants actions
are damaging and fraudulently harming not only this Trust/Estate Beneficiaries.
Not to mentioned as well as the U.S and NC State Tax &Treasury Authorities, and
as well as the U.S National Debit.
Complaint (#1) at 5-6 (errors in the original). Plaintiffs then go on to state the relief they seek at
the conclusion of the Complaint, as follows:
This complaint is to be Filed as a Qui Tam Complaint under Title 31 subsection
3730(b)(1)& 3730(b)(2) as relator. Defendants have been allowed by Iredell
County Court to improperly cause Harm to the Plaintiffs. The Defendants have
not proven their claims but merely just made fraudulent statement into the courts
without proof of claim or validation of any debt owed. Defendants have used
fraudulent and misleading statements to attempt to wrongfully foreclose and
administer our Estates without our authorization, and are acting out of jurisdiction,
As this is a Tax matter and the amount in questioned supersedes Jurisdiction of
lredell Superior Courts, and must be in the Federal Jurisdiction.
Plaintiffs relief:
1st, A peaceful existence in our pursuit of life, liberty and happiness is pursuant
to the Declaration of Independence which the Supreme Court has ruled to
include property and labor. (suing for peace); and
2nd, Relief from the court judgment order l 7SP145 on Sept 12, 2017, and order
of this case being recognized as a matter of Beneficiary's Trust; and
3rd, Absent to answer issue or any other claim(s) the Chancellor shall decree all
Beneficiary's Equitable claims, and that the defendants parties named above be
permanently disbarred for fraudulent claims, and actions; and
4th, A decree to the proper party(s) for all proceeds of account/trust
no:7100746325 . and account/trust court Claim Number l 7SP145. and any/all
accounts, instruments and all securities attached hereto to be returned to the estate,
and provide the beneficiary a court appointed trustee; and
5th, A decree for unimpeachable , indefeasible, root title, absolute deed and
possession to the land, known to as Iredell County District Tax ID no. 566000309/ Iredell County District Parcel Identification no. 0301B0500A007 . a.k.a.
121 Easter Lane, Davidson North Carolina; and
6th, A decree to Defendant(s) to remove all documents recorded with the Clerk
and Recorder of lredell County showing any interest in the land or personal
property; and
7th, Recognition of the proper status/standing of beneficiary/relator's and Notice
to all agencies/instrumentalities for correction of all records; and
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8th, All other relief as the nature of this case may require that is within good
conscience and good reason which results in what is fair, just and right for all
parties.
Id. at 6. Thus, the Court can in no manner find that plaintiffs have removed or attempted to remove
any action from state court. The request for an emergency stay is, therefore, denied.
Second, the filing of such motion has caused the Court to consider its subject-matter
jurisdiction inasmuch as such review required close review of the Complaint. Lack of subjectmatter jurisdiction may be raised at any time either by a litigant or the court. Mansfield, C. &
L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884). The ability of the court to independently address
subject-matter jurisdiction is important to finality inasmuch as a litigant, even one who remains
silent on the issue of jurisdiction, may wait until they receive an adverse judgment from a district
court and raise the issue of subject-matter jurisdiction for the first time on appeal, thereby voiding
the judgment. Capron v. Van Noorden, 2 Cranch 126, 127, 2 L.Ed. 229 (1804). The Federal
Rules of Civil Procedure anticipate this issue and provide that “[w]henever it appears by
suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the
court shall dismiss the action.” Fed.R.Civ.P. 12(h)(3).
Even when the Court assumes the facts as pled to be true, plaintiffs unequivocally
attempt to bring this action as a qui tam matter under the False Claims Act (“FCA”). A pro se
litigant may not bring a qui tam action under the FCA. United States ex rel. Lu v. Ou, 368 F.3d
773, 775–76 (7th Cir. 2004). As the Court of Appeals for the Fourth Circuit has held:
Although a qui tam relator is entitled by statute to a share of the recovery if his
action is successful, see 31 U.S.C. § 3730(d) (2000), the United States is the real
party in interest, and the need for adequate legal representation on behalf of the
United States counsels against permitting pro se suits.
United States ex rel. Brooks v. Lockheed Martin Corp., 237 Fed. Appx. 802, 803 (4th Cir. 2007)
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(citing United States ex rel. Milam v. Univ. of Tex., 961 F.2d 46, 50 (4th Cir. 1992)).1 Since this
Court “lacks subject matter jurisdiction to hear a qui tam action brought on behalf of the United
States by a pro se litigant,”2 this action will be dismissed.
Third, and finally, this Court has broadly read the Complaint to determine whether
plaintiffs may, perhaps, be attempting to bring this action under some other theory. Clearly, they
are unhappy with what appears to be a foreclosure sale of their property in Iredell County. The
latest motion reveals that a sale has occurred and that they believe that such sale was improper.
Much of the language of the Complaint is very familiar to this Court as it speaks of trusts, alleged
payments of the underlying debt through “tender of a negotiable instrument,” and how the loan
servicer is allegedly violating the UCC in proceeding with the foreclosure. In addition, it appears
that plaintiffs may be attempting to assert claims against defendants as “debt collectors” for alleged
unfair acts.
In accordance with the Rooker-Feldman Doctrine, plaintiffs fail to assert actionable claims
in this Court. The essence of their Complaint is a challenge to what appears to be ongoing
proceedings in state court to foreclose on the note and sell their property pursuant to North Carolina
foreclosure laws. The Court notes that “foreclosure actions brought under state law do not give
rise to federal question subject-matter jurisdiction.” Parker v. Investire, LLC, No. CV JKB-16256, 2016 WL 687496, at *1 (D. Md. Feb. 19, 2016) (citing McNeely v. Moab Tiara Cherokee
Kituwah Nation Chief, 2008 WL 4166328 (W.D.N.C 2008) (nothing in “simple foreclosure action
of real property...suggests the presence of a federal question.”)). The Court observes that plaintiffs

1
While Brooks is unpublished and is not binding, the Court finds it highly persuasive. Such decision is
included in the record herein by reference to the Federal Appendix citation, where it may be read in its entirety.
2
Brantley v. Title First Titling Agency, 1:12-CV-608, 2012 WL 6725592, at *3 (S.D. Ohio Sept. 27, 2012),
report and recommendation adopted, 1:12CV608, 2012 WL 6725591 (S.D. Ohio Dec. 27, 2012),

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appear to challenge the servicing of their loan and an alleged inability of the servicer to provide a
“wet signature” copy of the note. This is but one of many pro se cases seeking to challenge ongoing
foreclosure proceedings based on a theory that the mortgage or promissory note was exchanged as
part of the now infamous financial crisis created by mortgage backed securities. Courts have
repeatedly held that the mere fact of securitization and the fact that a negotiable promissory note
has changed hands -- even a number of times -- does not extinguish the homeowners’ obligations
under their note. Webb v. Equifirst Corp., 2016 WL 1274618, at *5 (W.D. Va. Mar. 31, 2016).
As this court’s colleague in the Western District of Virginia recently explained:
The Webbs appear to contend that interests cannot be, or were not,
transferred properly during the securitization process. (Second Compl. ¶¶ 14, 16–
25; see also First Compl. 7 (“[I]f the Defendants, and each of them, did not hold
and possess the Note on or before the closing date of the Trust herein, they are
estopped and precluded from asserting any secured or unsecured claim in this
case.”).) But there is nothing inherent in securitization that alters the Webbs'
obligations under their Note or prevents a purchaser of the Note from enforcing it.
As explained by the court in Upperman v. Deutsche Bank National Trust Co., No.
01:10-cv-149, 2010 WL 1610414, at *2 (E.D. Va. Apr. 16, 2010): “[t]here is no
legal authority that the sale or pooling of investment interest in an underlying note
can relieve borrowers of their mortgage obligations or extinguish a secured party's
rights to foreclose on secured property.” Judge Moon of this court quoted this same
language in rejecting theories similar to those asserted here. Blick v. JP Morgan
Chase Bank, N.A., No. 3:12-cv-1, 2012 WL 1030115, at *5 (W.D. Va. Mar. 27,
2012), aff'd, 474 Fed.Appx. 932 (4th Cir. 2012); see also McFadden v. Fannie Mae,
No. 7:11-cv-335, 2012 WL 37169, at *5 (W.D. Va. Jan. 9, 2012) (“[T]he Fourth
Circuit has rejected the notion that the validity of a note or deed of trust is
compromised by transfer to another party.” (citing Horvath v. Bank of N.Y., N.A.,
641 F.3d 617, 619 (4th Cir. 2011)).
Id. at *5.
This action has clearly been brought as a collateral attack on foreclosure proceedings that
were either before or had been determined by the North Carolina General Court of Justice in Iredell
County. Such a collateral attack is barred by the Rooker-Feldman doctrine, which prohibits actions

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attacking state-court judgments in federal court. In the most recent motion, plaintiffs claim that the
state court improperly sold their property. Under the Rooker-Feldman doctrine, "a party losing in
state court is barred from seeking what in substance would be appellate review of the state
judgment in a United States district court, based upon losing party's claim that the state judgment
itself violates the losers ... rights." Johnson v. DeGrandy, 512 U.S. 997, 1005-06 (1994); Rooker
v. Fidelity Trust Company, 263 U.S. 413, 416 (1923).
This Court has closely reviewed the Complaint and the pleadings and determined that if it
were to read such Complaint broadly to assert claims beyond the FCA, such Complaint would then
violate the Rooker-Feldman doctrine as it seeks to overturn the determinations of a state court.
This Court simply does not sit as a court of appeal from decisions issued by state courts, which
have their own appellate systems. Givens v. Homecomings Fin., 278 Fed. Appx. 607, at *2 (6th
Cir.2008) (unpublished) (where a mortgagor brought a FDCPA claim against a mortgagee after a
state court granted the mortgagee possession of the residence due to the mortgagor's default,
upholding the trial court's ruling that it lacked jurisdiction under the Rooker–Feldman doctrine,
since the FDCPA action was effectively an attempt to appeal the state court order); Kafele v.
Lerner, Sampson & Rothfuss, L.P.A., 161 Fed. Appx. 487, at *2 (6th Cir.2005) (unpublished)
(upholding the trial court's ruling that it lacked jurisdiction under the Rooker–Feldman doctrine,
stating “[t]hat the plaintiffs' [fair debt collection practices and other] claims are indeed
‘inextricably intertwined’ is evident from the fact that there is simply no way for this or any other
court to grant relief without disturbing the judgments of foreclosure entered by the state court”);
Done v. Wells Fargo Bank, N.A., No. 08–cv–3040 (JFB)(ETB), 2009 WL 2959619, at *3–5
(E.D.N.Y. Sept. 14, 2009) (stating that the plaintiff's federal lawsuit, in which the plaintiff was

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complaining of the injury from losing his home after a state foreclosure proceeding, was “squarely
foreclosed by the Rooker–Feldman doctrine,” and was alternatively barred by claim preclusion
and collateral estoppel); Burlinson v. Wells Fargo Bank, N.A., Civil No. 08–cv–01274–REB–
MEH, 2009 WL 646330, at *6 (D.Colo. Mar. 9, 2009) (stating that “any claim that Defendants
violated the FDCPA by foreclosing on a property in which they had no legal interest is barred by
Rooker–Feldman”).
In the end, this Court lacks subject-matter jurisdiction over this Complaint regardless of
how broadly it is read. The Federal Rules of Civil Procedure provide that “[w]henever it appears
by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the
court shall dismiss the action.” Fed.R.Civ.P. 12(h)(3). The Court will dismiss the action for want
of subject-matter jurisdiction; however, since the merits of the Complaint are not reached where
subject-matter jurisdiction is lacking, the dismissal will be without prejudice. S. Walk at
Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th
Cir. 2013).
ORDER
IT IS, THEREFORE, ORDERED that pro se plaintiff’s Motion for Emergency Stay (#3)
is DENIED, and this action is DISMISSED without prejudice for lack of subject-matter
jurisdiction.

Signed: August 6, 2018

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