Tucker v. U.S. Bank, N.A. et al
Filing
6
Memorandum of Opinion and Order. Plaintiff's Motion to proceed in forma pauperis (Related doc # 4 ) is granted. The Court finds Plaintiff has failed to state any claims against the Defendants based on fraud and has failed to establish this Court's jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. § 1332. As to Plaintiff's claims based on federal question jurisdiction and supplemental state law claims, the Clerk's Office is directed to forwa rd the appropriate documents to the U.S. Marshal for service of process, which must be perfected within 120 days of this Order. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Christopher A. Boyko on 3/24/2014. (H,CM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
PRESTON C. TUCKER,
Plaintiff,
v.
U.S. BANK, N.A., et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
CASE NO. 1:13 CV 1260
JUDGE CHRISTOPHER A. BOYKO
MEMORANDUM OF OPINION
AND ORDER
Before the Court is pro se Plaintiff Preston C. Tucker’s above-captioned in forma
pauperis Complaint. Mr. Tucker names U.S. Bank, N.A., Trustee for the Holder of the SASCO
2006-BC4 Trust Fund, Attorney Ted A. Humbert and Bank of America as Defendants. He asserts
the Defendants violated the Fair Debt Collection Practices Act (the “FDCPA”), 15 U.S.C. §§ 1692,
et seq., the Real Estate Settlement Procedures Act of 1974 (“RESPA”), 12 U.S.C. § 2605, and
engaged in mail fraud, predatory lending practices, as well as several other State law violations.
Plaintiff, who was incarcerated at the Federal Prison Camp in Loretto, Pennsylvania
at the time he filed this Complaint,1 also asserts the Court’s jurisdiction based on diversity of
citizenship. Mr. Tucker claims he is a resident of Pennsylvania and believes Texas is the principle
place of business for both U.S. Bank and Bank of America. He also claims Defendant Attorney
Humbert’s principle place of business is in Ohio. Further, he maintains venue in the Northern
District of Ohio is proper because the controversy involves real estate located in Maple Heights,
Ohio.
Plaintiff seeks declaratory relief, as well as $2000.00 in statutory damages, $87,200 actual
damages and $100,000 punitive damages. For the reasons set forth below, the Court lacks
jurisdiction based on diversity of citizenship and Plaintiff has failed to a claim for relief based on
fraud.
Background
Mr. Tucker alleges he is the sole owner of real property located at 5115 Stanley Avenue,
Maple Heights, Ohio (“the property”). On August 2, 2006, he executed a promissory note in favor
of Countrywide Home Loans (“Countrywide”), which was secured by a mortgage against the
property to Mortgage Electronic Registration System, Inc. (“MERS”), a mortgage registration
company. On or about August 9, 2011, he alleges the Defendants’ claim MERS assigned its interest
in the mortgage to U.S. Bank. Plaintiff disputes this assertion, however, and alleges that the
promissory note was not assigned, but still held by Bank of America as the “successor in interest”
after it was purchased by Countrywide. Mr. Tucker states he has been advised that both Bank of
America and U.S. Bank are servicing the note. Bank of America also allegedly offered to “enter[]
1
Plaintiff advised the Court that he has been transferred from F.C.I. Loretto and is now
serving his sentence at the Federal Correctional Institute “Low” in Butner, South Carolina.
-2-
into a new security interest [, but] [a]t no point did Bank of America indicate that their authority to
do so rested with a third party.” (Doc. No. 1 at ¶14.)
In August 2012, Mr. Humbert mailed a letter to Tatianna A. Cotton, “the current spouse of
the Plaintiff.” (Doc. No. 1 at ¶20.) He argues Ms. Cotton was never a signatory on the mortgage
agreement and, therefore, had no legal rights or obligations to it. Moreover, he and Ms. Cotton are
“presently separated and are preparing to proceed with divorce proceedings.” Id. Under these
circumstances, Mr. Tucker complains Mr. Humbert had no right to contact Ms. Cotton as a third
party and disclose his personal information to her without his express consent.
On or about August 20, 2012, Mr. Tucker mailed a Notice to Mr. Humbert directing him
to “cease and desist from further actions and communications related to alleged debt.”(Doc. No. 1
at ¶24.) Instead of complying with his request, however, Plaintiff alleges “the Defendants persisted
in litigating a lawsuit . . . where Mrs. Cotton was named as a ‘Jane Doe’ Defendant in the
pleadings.”2 (Doc. No. 1 at ¶25.) Mr. Tucker states that these disclosures to Ms. Cotton, as a third
party, violated his rights under 15 U.S.C. §1692(c)(b).
Plaintiff alleges Bank of America, as successor in interest to Countrywide, was obligated to
provide him 15 days advance notice before it transferred the servicer of his mortgage. Moreover,
he alleges U.S. Bank never provided the requisite notice within 15 days after the transfer went into
effect. Even though Plaintiff alleges each Defendant claims it is servicing his loan, neither Bank of
America nor U.S. Bank allegedly provided notice to Mr. Tucker, in direct violation of 12 U.S.C.
2
A foreclosure action was filed against Plaintiff on July 23, 2012 in the Cuyahoga County
Court of Common Pleas. See U.S. Bank National Association, as Trustee etc. vs. Preston C.
Tucker, et al., No. CV-12-787643 (Ct. Com. Pl. Cuyahoga Ct.)(McCormick, J.) Judge
McCormick dismissed the complaint on January 18, 2013, without prejudice, based on the
Defendant’s failure to file the appropriate verification affidavit.
-3-
§2605(k)(1)(E).
Finally, Plaintiff alleges that all of the confusion surrounding the assignment of his mortgage
has clouded the “true holder of the Note and the Mortgage on the Real Property.” (Doc. No. 1 at ¶
54.) As a consequence, he complains he is unsure to whom he should pay his mortgage and seeks
a declaratory judgment identifying the “true and correct legal owner of the Note and Mortgage on
the property.” (Doc. No. 1 at ¶56.)
In the alternative, he asks the Court to void the Note and
Mortgage if the holder cannot be identified.
Standard of Review
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365
(1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is required to
dismiss any claim under 28 U.S.C. §1915(e) if it fails to state a basis upon which relief can be
granted, or if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319 (1989);
Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d 194, 197
(6th Cir. 1996). For the reasons stated below, this Court lacks subject matter jurisdiction based on
diversity of citizenship and Plaintiff’s claims based on fraud are dismissed pursuant to 28 U.S.C.
§ 1915(e).
Diversity Jurisdiction
Plaintiff asserts this Court’s jurisdiction based on both federal question and diversity of
citizenship. Although he may have stated arguable RESPA and FDCPA claims in light of the Sixth
Circuit’s recent opinion in Glazer v. Chase Home Finance LLC, 704 F.3d 453 (6th Cir. 2013),
Plaintiff has failed to establish diversity jurisdiction.
To constitute diversity jurisdiction, a complaint must not only show that the amount in
-4-
controversy exceeds $75,000, but also include complete diversity of citizenship---such that all parties
on one side of the controversy are of diverse citizenship from all parties on the other side at the time
the complaint is filed. See 28 U.S.C. § 1332; Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826,
828-31(1989). Although Plaintiff was incarcerated in Pennsylvania when he filed this Complaint,
he has not averred that his domicile is in Pennsylvania.
For purposes of diversity jurisdiction, a person is a citizen of the state in which he or she is
domiciled. Certain Interested Underwriters at Lloyd's v. Layne, 26 F.3d 39, 41 (6th Cir.1994);
Stifel v. Hopkins, 477 F.2d 1116, 1120 (6th Cir.1973). Domicile is established by an intent to remain
in a particular state permanently, or at least indefinitely. Stifel, 477 F.2d at 1120. Domicile is not
lost by protracted absence from home, where the intention to return remains. Id. It is apparent from
the facts stated in the Complaint that the Plaintiff was a resident of Ohio prior to his current federal
incarceration. Moreover, he asserts an ownership interest in real property located in Ohio. Most
cases have uniformly held that incarceration does not change a prisoner's domicile for purposes of
the diversity statute. See Polakoff v. Henderson, 370 F.Supp. 690, 693 (N.D.Ga.1973)(“A prisoner
does not acquire a new domicile in the place of incarceration, but retains the domicile he had prior
to incarceration.”), affirmed, 488 F.2d 977 (5th Cir. 1974); Jones v. Hadican, 552 F.2d 249, 250 (8th
Cir. 1977)( per curiam )(“With respect to the domicile of prisoners, the traditional rule is that a
prisoner does not acquire a new domicile when he is incarcerated in a different state; instead he
retains the domicile he had prior to his incarceration.”), cert. denied, 431 U.S. 941 (1977). Just as
the simple fact of Plaintiff’s incarceration in Pennsylvania does not establish his domicile in that
state, his recent transfer to a prison in South Carolina does not automatically shift his domicile to that
state either. See e.g. Nouse v. Nouse, 450 F.Supp. 97, 100 (D. Md. 1978)(“plaintiff has not lost his
-5-
status as a citizen of Maryland and become a citizen of Pennsylvania simply because of his
incarceration in that state.”) Because the Court finds Plaintiff is a citizen of Ohio and he avers
Defendant Humbert is a citizen of Ohio, diversity jurisdiction does not exist. See Jerome–Duncan,
Inc. v. Auto–By–Tel, L.L.C.,176 F.3d 904, 907 (6th Cir.1999)(diversity jurisdiction only exists when
Plaintiff is a citizen of a different state than all Defendants).
Fraud
The Complaint is replete with conclusory allegations of fraud. Plaintiff has not, however,
pled fraud against the Defendants’ with adequate particularity. Under Rule 9(b) of the Federal Rules
of Civil Procedure, a plaintiff is required to plead allegations of fraud with particularity. Pursuant
to this requirement:
at a minimum the fraud claimant should allege ‘the parties and
participants to the alleged fraud, the representations made, the nature
in which the statements are alleged to be misleading or false, the time,
place and content of the representations, the fraudulent scheme, the
fraudulent intent of the defendants, reliance on the fraud, and the
injury resulting from the fraud.’
Stone v. Mehlberg, 728 F.Supp. 1341, 1351 (W.D. Mich. 1989)(citing Michaels Bldg. Co. v.
Ameritrust Co., N.A., 848 F.2d 674, 679 (6th Cir.1988)). The fact that Plaintiff is proceeding pro
se does not relieve him from his duty to meet the minimal requirements for alleging fraud. Id
Conclusion
Based on the foregoing, Plaintiff is granted leave to proceed in forma pauperis (Doc. No. 4).
The Court finds he has failed to state any claims against the Defendants based on fraud and has failed
to establish this Court’s jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. § 1332.
As to Plaintiff’s claims based on federal question jurisdiction and supplemental state law claims, the
-6-
Clerk's Office is directed to forward the appropriate documents to the U.S. Marshal for service of
process, which must be perfected within 120 days of this order. See FED. CIV. R. 4(m). The Clerk's
Office shall include a copy of this Order in the documents to be served upon the Defendants. The
Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be
taken in good faith.3
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
UNITED STATES DISTRICT JUDGE
DATED: March 24, 2014
3
28 U.S.C. § 1915(a)(3) provides: “An appeal may not be taken in forma pauperis if the trial
court certifies in writing that it is not taken in good faith.”
-7-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?