Hasan v. CitiMortgage Inc. et al

Filing 7

Opinion & Order signed by Judge James S. Gwin on 1/19/17. The Court, for the reasons set forth in this order, grants defendant CitiMortgage's motion to dismiss and dismisses this action in its entirety against the remaining 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. (Related Docs. 1 and 4 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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KARIEM HASAN,
:
:
Plaintiff,
:
:
vs.
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CITIMORTGAGE INC., et al.,
:
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Defendants.
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CASE NO. 1:16-CV-02417

OPINION & ORDER
[Resolving Doc. Nos. 1 and 4]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Pro se Plaintiff Kariem Hasan filed this action against Citimortgage Inc.
(“Citimortgage”), Reimer, Arnovitz, Cherner & Jeffrey, Attorney Edward G. Bohnart, and the
Cuyahoga County Sheriff’s Department. In the Complaint, Plaintiff challenges the validity of
his mortgage and the state court foreclosure action filed against him by Citimortgage. He
asserts claims under 42 U.S.C. §§ 1983, 1985 and 1986, and 18 U.S.C. §§ 241 and 242, and
seeks monetary damages.
I. Background
Plaintiff purchased property located at 33324 Overland Lane, Solon, Ohio 44139 in
2009. He obtained a mortgage loan for $ 234,572.00. Citimortgage acquired the mortgage by
merger, and filed an Assignment of Mortgage in 2014. On April 25, 2014, Citimortgage,
through Attorney Bohnart, filed a foreclosure action in the Cuyahoga County Court of Common

Pleas.1 The court entered judgment in favor of Citimortgage on June 22, 2015. The Ohio
Eighth District Court of Appeals upheld the judgment of foreclosure. The property has been set
for sheriff’s sale but has yet to be sold.
Plaintiff contends the mortgage is fraudulent. He claims the mortgage was an
unconscionable contract because the note did not contain the phrase “pay to the order of.”2 He
further states he was not aware he was signing the promissory note, he was not aware that the
lender was obtaining a promissory note, and was not aware of the mortgage-backed security
arrangement when he signed the mortgage. He indicates he thought he had obtained a loan for
the property but the lenders actually “created funds” using his signature on the promissory note.
He contends he did not receive any cash from the transaction and therefore the transaction was
fraudulent. He states that the mortgage is fraudulent and the sheriff’s sale cannot proceed in
good faith. He asserts claims under 42 U.S.C. §§ 1983 and 1985, and 18 U.S.C. §§241 and 242.
He also asserts state law tort claims.
Citimortgage filed a Motion to Dismiss under Federal Civil Procedure Rules 12(b)(1)
and (6).3 Citimortgage contends this action is barred by the Rooker-Feldman doctrine, and the
doctrines of res judicata and collateral estoppel. Citimortgage also claims Plaintiff failed to
state a claim for relief on the merits of his causes of action. For the reasons stated below, the
Court grants Citimortgage’s Motion to Dismiss and dismisses this action.

1

See Citimortgage, Inc. v. Hasan, No. CV-14-825994 (Cuyahoga Cty Ct. Comm. Pl. filed
Apr. 25, 2014).
2

Doc. No. 1 at 2.

3

Doc. No. 4.
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II. Legal Standard
Defendant Citimortgage seeks to dismiss the Plaintiff’s claims under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). Federal Rule of Civil Procedure 12(b)(1) allows
dismissal for “lack of jurisdiction over the subject matter” of claims asserted in the Complaint.4
Generally, Fed. R. Civ. P. 12(b)(1) Motions fall into two categories: facial attacks and factual
attacks.5
Citimortgage facially attacks the Complaint citing the Rooker-Feldman Doctrine.6 This
Court therefore must accept the Plaintiff’s material allegations in the Complaint as true.7 The
Plaintiff has the burden of proving subject matter jurisdiction in order to survive a Motion to
Dismiss pursuant to Rule 12(b)(1).8 Lack of subject matter jurisdiction is a non-waivable, fatal
defect.9
Citimortgage also attacks the sufficiency of the Plaintiff’s Complaint under 12(b)(6). To
survive a 12(b)(6) Motion to Dismiss, a Complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.”10 The plausibility
requirement is not “akin to a probability requirement,” but requires “more than a sheer

4

FED. R. CIV. P. 12(b)(1).

5

United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994).

6

DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004).

7

Ritchie, 15 F.3d at 598.

8

Madison–Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996).

9

Von Dunser v. Aronoff, 915 F.2d 1071, 1074 (6th Cir. 1990).

10

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
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possibility that the Defendant has acted unlawfully.”11 The Court may grant a Motion to
Dismiss only when “it appears beyond doubt” that the Plaintiff fails to state a claim upon which
relief may be granted.12
In addition, District Courts are permitted to conduct a limited screening and to dismiss,
without a Motion from either party, a Complaint if it appears that the allegations are “totally
implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to
discussion.”13 The Court is also authorized to dismiss the Complaint where the asserted claims
lack an arguable basis in law, or if the Court lacks subject matter jurisdiction over the matter.14
III. Analysis
Citimortgage first asserts this action is barred by the Rooker-Feldman doctrine. United
States District Courts do not have jurisdiction to overturn state court decisions even if the
Plaintiff claims the state court judgment is unconstitutional.15 Only the United States Supreme
Court can hear an appeal of a state court judgment.16 Under this principle, generally referred to
as the Rooker-Feldman doctrine, a party losing his case in state court cannot file a case in a
United States District Court claiming that the state court judgment itself violates his or her

11

Id.

12

FED. R. CIV. P. 12(b)(6); Conley v. Gibson, 355 U.S. 41, 45 (1957).

13

Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (citing Hagans v. Lavine, 415 U.S. 528,
536-37 (1974)).
14

Id. at 480; see also Neitzke v. Williams, 490 U.S. 319 (1989); Sistrunk v. City of Strongsville,
99 F.3d 194, 197 (6th Cir.1996); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990).
15

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 292 (2005).

16

Id. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker
v. Fidelity Trust Co., 263 U.S. 413 (1923).
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federal rights, and asking the Court to reverse the state court decision.17
The Rooker-Feldman doctrine is applied narrowly. It is not triggered “simply because a
party attempts to litigate in federal court a matter previously litigated in state court.”18 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.”19 If the source of the Plaintiff’s injury is
the state court judgment itself, then the Rooker-Feldman doctrine bars the federal claim.20 “If
there is some other source of injury, such as a third party’s actions, then the Plaintiff asserts an
independent claim and Rooker-Feldman does not apply.21 In conducting this inquiry, the Court
should also consider the Plaintiff’s requested relief.22
Citimortgage claims that because the essence of Plaintiff’s Complaint is that the
mortgage is fraudulent, he directly attacks the foreclosure judgment. The Court disagrees.
While Plaintiff seeks to relitigate matters already decided by the state court, he requests
monetary damages and does not ask this Court to overturn the state court judgment. The
Rooker-Feldman doctrine does not apply in this case.
Plaintiff’s claims, however, are barred by res judicata. The state court already decided

17

Exxon Mobil Corp., 544 U.S. at 283-84; Berry v. Schmitt, 688 F.3d 290, 298-99 (6th Cir.
2012); Kovacic v. Cuyahoga County Dep’t of Children and Family Services, 606 F.3d 301,
308-311 (6th Cir. 2010); Lawrence v. Welch, 531 F.3d 364, 369 (6th Cir. 2008).
18

Exxon Mobil Corp., 544 U.S. at 293; Berry, 688 F.3d 298-99.

19

McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir. 2006); see Berry, 688 F.3d at 299;
Kovacic, 606 F.3d at 310.
20

McCormick, 451 F.3d at 393.

21

Id.; see Lawrence, 531 F.3d at 368-69.

22

Evans v. Cordray, No. 09-3998, 2011 WL 2149547, at *1 (6th Cir. May 27, 2011).
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that the mortgage was valid when it granted a judgment of foreclosure and assessed damages.
Plaintiff cannot assert claims in this federal court case to relitigate issues already decided by the
state courts.23 This Court must give full faith and credit to the state court foreclosure
judgment.24
Furthermore, Plaintiff already tried, unsuccessfully, to relitigate the foreclosure matter in
federal court. He filed his first action in this District Court on September 16, 2016 against
Citimortgage, asserting claims under the Truth in Lending Act, the Federal Debt Collection
Practices Act.25 The Court granted Citimortgage’s Motion to Dismiss on January 5, 2017. He
has now filed this action asserting new claims against Citimortgage under 52 U.S.C. §§ 1983
and 1985 and 18 U.S.C. §§ 241 and 242. The final judgment on the merits of Plaintiff’s first
federal law suit precludes him from bringing this second federal lawsuit based on the same facts
against the same Defendant to assert new claims .26 Plaintiff cannot continue to litigate this
matter multiple times in the hope of obtaining a different result.
Because res judicata bars the Plaintiff from relitigating this case, it is no longer open to
discussion.27 The Complaint is dismissed against all remaining Defendants.
IV. Conclusion
Accordingly, Citimortgage’s Motion to Dismiss under Federal Civil Procedure Rules

23

Grava v. Parkman Twp., 73 Ohio St.3d 379, 382 (1995).

24

Id.; Migra v. Warren City School District Board of Educ., 465 U.S. 75, 81 (1984).

25

Hasan v. Citimortgage, No. 1:16 CV 2311 (N.D. Ohio Jan. 5, 2017) (Lioi, J.)

26

Gargallo v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 918 F.2d 658, 660 (6th Cir. 1990).

27

Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (citing Hagans v. Lavine, 415 U.S. 528,
536-37 (1974)).
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12(b)(6) is granted.28 Furthermore, because this action is barred by res judicata, it is dismissed
in its entirety against the remaining 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.29
IT IS SO ORDERED.

Dated: January 19, 2017

28

Doc. No. 4.

29

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

28 U.S.C. § 1915(a)(3) provides:
An appeal may not be taken in forma pauperis if the trial court certifies that it is not
taken in good faith.
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