Hasan v. CitiMortgage, Inc. et al

Filing 7

Memorandum Opinion and Order: Defendant's motion to dismiss (Doc. No. 4 ) is granted. Plaintiff's motion for additional time to respond to defendant's motion is moot, and denied as such. (Doc. No. 6 .) Pursuant to 28 U.S.C. Section 1915(a)(3), an appeal from this decision could not be taken in good faith. Judge Sara Lioi on 1/5/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

KARIEM HASAN,

PLAINTIFF,
vs.

CITIMORTGAGE, INC.,

DEFENDANT.

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CASE NO. 1:16cv2311

JUDGE SARA LIOI

MEMORANDUM OPINION
AND ORDER

This action is before the Court on motion of defendant Citimortgage (“defendant” or
“Citimortgage”) to dismiss plaintiff’s complaint (Doc. No. 1 [“Compl.”]). (Doc. No. 4.) On
October 26, 2016, pro se plaintiff Kariem Hasan (“plaintiff” or “Hasan”) requested an additional
thirty days to respond to the motion (Doc. No. 6). To date, however, no response has been filed.
For the reasons that follow, defendant’s motion to dismiss is granted.
A. Background
Plaintiff purchased property located at 33324 Overland Lane, Solon, Ohio 44139 (the
“property”) in 2009. He obtained a mortgage loan for $234,572.00, which was acquired by
Citimortgage. On April 25, 2014, Citimortgage filed a foreclosure action in the Cuyahoga
County Court of Common Pleas. See Citimortgage, Inc. v. Hasan, No. CV-14-825994
(Cuyahoga Cty Ct. Comm. Pl. filed Apr. 25, 2014). The state court entered judgment in favor of
Citimortgage on June 22, 2015. Plaintiff appealed that decision to the Ohio Eighth District Court
of Appeals on July 10, 2015. The appellate court upheld the judgment of foreclosure on April 14,

2016. The property has been set for sheriff’s sale but has yet to be sold.1
In this case, plaintiff challenges the assignment of the mortgage and validity of the
foreclosure action. According to plaintiff, Citimortgage owns mortgage, not the promissory note,
as Citimortgage claimed in the foreclosure action. He asserts three causes of action. First, he asks
the Court to quiet title in his name, free and clear of any encumbrances, including the mortgage
and judgment in favor of Citimortgage. (Compl. ¶¶ 27-32.) Second, plaintiff claims Citimortgage
violated 15 U.S.C. § 1641(g) of the Truth in Lending Act (“TILA”) by failing to disclose the
assignment of the mortgage. (Id. ¶¶ 33-37.) Third, plaintiff asserts violations of the Fair Debt
Collection Practices Act (“FDCPA”). (Id. ¶¶ 38-40.) Plaintiff asks this Court to award him title
to the property in fee simple, forever barring Citimortgage from seeking title to or claiming an
interest adverse to plaintiff’s interest in the property. He further asks this Court to declare that:
(1) plaintiff is the prevailing party; (2) the mortgage originator has no interest in the property;
and (3) defendant violated the FDCPA. Finally, plaintiff seeks actual and statutory damages,
costs, fees, and interest. (Compl. at 8-9.2)
Defendant’s motion to dismiss is brought pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). Citimortgage contends that the issues raised by plaintiff relative to the
property were already the subject of a state foreclosure action in the Cuyahoga County Court of
Common Pleas, Case No. CV-14-855884 Cuyahoga Cty. Ct. Comm. Pl. 2014), and the state

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The Court may take judicial notice of the docket of the foreclosure action in Cuyahoga County, Case No. CV-14825884, to which plaintiff refers in his complaint. (Compl. ¶ 20.) See Richey v. CitiMortgage, Inc., No. 1:13-CV01452, 2013 WL 5966176, at *1 n.9 (N.D. Ohio Nov. 8, 2013) (citation omitted).The docket is available at:
http://cpdocket.cp.cuyahogacounty.us/CV_CaseInformation_Docket.aspx?q=bgbpU5GbNWs9TTGWLHSgYw2.
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All references to page numbers are to the page identification numbers generated by the Court’s electronic filing
system.
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court granted judgment in defendant’s favor. Thus, defendant contends that this Court lacks
subject matter jurisdiction over the case under the Rooker-Feldman doctrine, and that the action
is barred by res judicata.
B. Discussion
1. Fed. R. Civ. P. 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) allows dismissal for “lack of jurisdiction over
the subject matter” of claims asserted in the complaint. Fed. R. Civ. P. 12(b)(1). “[W]here
subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff has the burden of
proving jurisdiction in order to survive the motion.” Rogers v. Stratton Indus., Inc., 798 F.2d
913, 915 (6th Cir. 1986).
A Rule 12(b)(1) motion may be premised on a facial attack or a factual attack. See
Abdelkhaleq v. Precision Door of Akron, No. 5:07cv3585, 2008 WL 3980339, at *2 (N.D. Ohio
Aug. 21, 2008). A facial attack “challenges the adequacy of the complaint[.]” Id. (citing Scheuer
v. Rhodes, 416 U.S. 232, 235-37, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974), overruled on other
grounds by Davis v. Scherer, 468 U.S. 183, 104 S. Ct. 3012, 82 L. Ed. 2d 139 (1984)). A factual
attack “contests the factual existence of subject matter jurisdiction[.]” Id. (citing Ohio Hosp.
Ass’n v. Shalala, 978 F. Supp. 735, 739 (N.D. Ohio 1997)).
If the motion presents a facial attack, the Court must take all of the material allegations in
the complaint as true and construe them in the light most favorable to the non-moving party.
United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994), cert. denied, 513 U.S. 868, 115 S. Ct.
188, 130 L. Ed. 2d 121 (1994) (citing Scheuer, 416 U.S. at 235-37). In contrast, if the motion
presents a factual attack, then the Court is free to consider extrinsic evidence and may weigh the
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evidence of its own jurisdiction without affording the plaintiff the presumption of truthfulness.
Id.
2. Fed. R. Civ. P. 12(b)(6)
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the pleading. Davis H.
Elliot Co., Inc. v. Caribbean Util. Co., Ltd., 513 F.2d 1176, 1182 (6th Cir. 1975). All allegations
of fact by the non-moving party are accepted as true and construed in the light most favorable to
that party. See Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998) (citing Meador v. Cabinet
for Human Res., 902 F.2d 474, 475 (6th Cir. 1990), cert. denied, 498 U.S. 867, 111 S. Ct. 182,
112 L. Ed. 2d 145 (1990)). The Court, however, “need not accept as true legal conclusions or
unwarranted factual inferences.” Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999) (citing
Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)).
The sufficiency of the pleading is tested against the notice pleading requirements of Fed.
R. Civ. P. 8. Rule 8(a)(2), which provides that a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief[.]” Although this standard is
liberal, Rule 8 still requires a complaint to provide the defendant with “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007). Thus, “[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting
Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
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3. Analysis
The Court lacks subject matter jurisdiction under the Rooker-Feldman doctrine
The Rooker-Feldman doctrine is based on two United States Supreme Court decisions
interpreting 28 U.S.C. § 1257(a). See District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,
44 S. Ct. 149, 68 L. Ed. 362 (1923). This statute was enacted to prevent “end-runs around state
court judgments” by requiring litigants seeking review of that judgment to file a writ of certiorari
with the United States Supreme Court. The Rooker-Feldman doctrine is based on the “negative
inference” that, if appellate court review of state judgments is vested in the United States
Supreme Court, then such review may not occur in the lower federal courts. Kovacic v.
Cuyahoga Cnty. Dep’t of Children and Family Servs., 606 F.3d 301, 309 (6th Cir. 2010). The
doctrine, however, has a narrow application. The doctrine “does not bar federal jurisdiction
‘simply because a party attempts to litigate in federal court a matter previously litigated in state
court.’” Berry v. Schmitt, 688 F.3d 290, 298 (6th Cir. 2012) (quoting Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 291, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005)). Rather, “the
doctrine applies only where a state-court loser initiates an action in federal district court,
complaining of injury caused by a state court judgment, and seeks review and rejection of that
judgment.” Id. at 298-99 (citing In re Cook, 551 F.3d 542, 548 (6th Cir. 2009)).

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To determine whether Rooker-Feldman bars a claim, the Court must look to the “source
of the injury the plaintiff alleges in the federal complaint.” McCormick v. Braverman, 451 F.3d
382, 393 (6th Cir. 2006). If the source of the plaintiff’s injury is the state-court judgment itself,
then the Rooker-Feldman doctrine bars the federal claim. “If there is some other source of injury,
such as a third party’s actions, then the plaintiff asserts an independent claim.” Id. In conducting
this inquiry, the Court should consider the plaintiff’s requested relief. Evans v. Cordray, 424 F.
App’x 537, 539 (6th Cir. 2011) (“The problem with the district court's analysis is that it
determined the source of Evans’s injury without reference to his request for relief.”)
In this case, plaintiff claims that he is entitled to a judicial declaration quieting title in
plaintiff as of the date of the loan, and requiring defendant to prove that it is the true party to
whom the debt is owed to satisfy the mortgage. (Compl. ¶¶ 30, 32.) In his prayer, plaintiff seeks,
among other things, a declaration from this Court that the “Mortgage Originator has no
enforceable secured or unsecured claim against the property[.]” (Compl. at 8.) To grant this
relief, the Court would have to reverse the decisions of the state courts. Thus, the RookerFeldman doctrine applies and this Court lacks jurisdiction to grant that relief.
Claims not barred by Rooker-Feldman are precluded by res judicata
To the extent plaintiff is seeking monetary damages for violations of TILA or the
FDCPA, he is not necessarily seeking appellate review of the state court judgment. Thus, the
Rooker-Feldman doctrine is not implicated. That does not mean, however, this Court can now
consider those claims. The doctrine of res judicata precludes plaintiff from relitigating issues and
claims that were decided by the state courts, as well as issues and claims that could, and should,
have been asserted in the state court action.
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Federal courts must give the same preclusive effect to a state court judgment as that
judgment would receive in the state courts. 28 U.S.C. § 1738; Abbott v. Michigan, 474 F.3d 324,
330-31 (6th Cir. 2007); Young v. Twp. of Green Oak, 471 F.3d 674, 680 (6th Cir. 2006). If
plaintiff would be precluded from filing this case in state court based on the case already decided
by the Court of Common Pleas, he cannot file the action in federal court and bypass the state
procedural bar. To determine the preclusive effect a prior state court judgment would have on the
present federal action, the Court must apply the law of preclusion of the state in which the
judgment was rendered. Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.
Ct. 892, 79 L. Ed. 56 (1984).
In Ohio, the doctrine of res judicata encompasses the two related concepts of claim
preclusion and issue preclusion. State ex rel. Davis v. Pub. Emp. Ret. Bd., 899 N.E.2d 975, 98182 (Ohio 2008). “Claim preclusion prevents subsequent actions by the same parties or their
privies based upon any claim arising out of a transaction that was the subject matter of a previous
action.” Id. (citation omitted). Claim preclusion also bars subsequent actions whose claims
“could have been litigated in the previous suit[.]” O’Nesti v. DeBartolo Realty Corp., 862 N.E.2d
803, 806 (Ohio 2007) (citation omitted). By contrast, issue preclusion, or collateral estoppel,
prevents the “relitigation of any fact or point that was determined by a court of competent
jurisdiction in a previous action between the same parties or their privies,” even if the causes of
action differ. Id. (citation omitted).

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Here, both the doctrine of claim preclusion and issue preclusion bar relitigation of the
claims plaintiff asserts in this complaint. Plaintiff could have challenged the assignment of the
mortgage in the foreclosure action, and raised his claims to quiet title and for alleged violations
of TILA, in the Court of Common Pleas. That court necessarily determined that Citimortgage
had a valid ownership interest in the mortgage when it granted a foreclosure judgment in favor of
defendant. Thus, these claims are barred by the doctrine of res judicata.
With respect to plaintiff’s FDCPA claim, that statute governs the conduct of debt
collectors, and defines that term to include “any person who uses any instrumentality of
interstate commerce or the mails in any business the principal purpose of which is the collection
of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). To the extent that plaintiff
claims that the foreclosure debt was not Citimortgage’s debt to collect, the FDCPA claim is also
barred by the doctrine of res judicata. Finally, FDCPA specifically excludes from the definition
of a debt collector “any officer or employee of a creditor while, in the name of the creditor,
collecting debts for such creditor.” 15 U.S.C. § 1692a(6)(A). To the extent that the debt is
Citimortgage’s to collect, a creditor collecting a debt in its name for itself is not a debt collector
as defined by the statute and, therefore, plaintiff has failed to state a FDCPA claim.

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C. Conclusion
For all the foregoing reasons, defendant’s motion to dismiss (Doc. No. 4) is granted.
Plaintiff’s motion for additional time to respond to defendant’s motion is moot, and denied as
such. (Doc. No. 6.) Pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be
taken in good faith.
IT IS SO ORDERED.

Dated: January 5, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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