Daina v. Carrington Mortgage Services, LLC et al
Opinion & Order signed by Judge James S. Gwin on 1/8/18. The Court grants plaintiff's application to proceed in forma pauperis and dismisses this action for the reasons set forth in 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. (Related Docs. 1 and 2 ) (D,MA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
ANNA M. DAINA,
SERVICES, LLC, et al.,
CASE NO. 1:17-CV-01607
OPINION & ORDER
[Resolving Doc. No. 1]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Pro se Plaintiff Anna M. Daina filed this action under the Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. § 1692, the Real Estate Settlement Procedures Act (“RESPA”), 12
U.S.C. § 2602, the National Bank Act, 12 U.S.C. § 21, the Racketeer Influenced Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1961, and the UCC against Carrington Mortgage
Services, LLC (“Carrington”), Mortgage Electronic Registration System, Inc. (“MERS”),
Comptroller of Currency John C. Dugan, Securities and Exchange Commissioner Michael S.
Piwowar, Securities and Exchange Commissioner Kara M. Stein, Taylor, Bean & Whitaker
Mortgage Corp. (“TB&W”), BAC Home Loan Servicing, LP, John D. Clunk Co., LPA, Ted
Humbert, and John and Jane Does. In the Complaint, Daina challenges the validity of her
mortgage and state court foreclosure procedures. She seeks reversal of the state court
foreclosure judgment rendered against her in Cuyahoga County Court of Common Pleas Case
No. CV-15-849076, and an order enjoining eviction proceedings filed against her after the
resulting sheriff’s sale. She also seeks an award of monetary damages.
Plaintiff also filed an Application to Proceed In Forma Pauperis.1 That Application is
Carrington filed a foreclosure action against Daina in the Cuyahoga County Court of
Common Pleas, Case No. CV 15 849076, on July 31, 2015. That action concerned the property
located at 915 High Street, Bedford, Ohio 44146. Daina filed an Answer and Counterclaims.
The court granted a judgment of foreclosure in Carrington’s favor on August 5, 2016. Daina
appealed that decision but her appeal was dismissed sua sponte because she did not comply with
the Appellate Court’s local rules. The High Street property was sold at sheriff’s sale on
December 5, 2016. The sale was confirmed on January 10, 2017, and Carrington filed an
eviction action against Daina on February 13, 2017. Daina filed an Emergency Motion to Stay
the Eviction, which was granted. That stay was in effect until June 15, 2017.
Daina then filed her first civil action in federal court to contest the validity of the
mortgage, Carrington’s authority to file the foreclosure action, and the state court judgments.2
She asserted claims under the FDCPA, RESPA, the UCC and various state statutes. Carrington
and MERS filed a Motion to Dismiss asserting that the action was barred by res judicata and the
Rooker-Feldman Doctrine. The Court granted the Defendants’ Motion on June 30, 2017 and
Doc. No. 2
See Daina v. Carrington Mortgage Services, LLC, No. 1:17 CV 496 (N.D. Ohio June 30,
dismissed the remainder of the action under 28 U.S.C. § 1915(e). Daina did not appeal from the
Instead, Daina filed this action against many of the same Defendants, based on the same
facts and asserting the same claims. She alleges TB&W originally owned the mortgage and
assigned it to Bank of America on June 5, 2012 through a robo signature of MERS. She asserts
the robo signature is invalid to transfer or assign a mortgage. She alleges the mortgage was
assigned again in October 2014 to Carrington through a robo signature, and placed into a
securitized trust. She contends the mortgage was required to have been purchased from the
original mortgage holder, TB&W, and the chain of ownership was invalid, meaning Carrington
did not have standing to file the foreclosure action. Daina alleges the judgment of foreclosure is
therefore invalid and unenforceable. She seeks relief from this judgment under the FDCPA,
RESPA, the National Bank Act, RICO, the UCC and various state statutes.
Carrington and MERS filed a Motion to Dismiss, asserting this action is also barred by
res judicata, because it was previously litigated in federal and state court, and by the RookerFeldman Doctrine. For the reasons stated below, the Motion is granted, and this action is
II. Legal Standard
In deciding a Rule 12(b)(6) Motion to Dismiss for failure to state a claim upon which
relief can be granted, the Court must determine the legal sufficiency of the Plaintiff’s claim.3 In
addition, because Daina is proceeding in forma pauperis, the Court is required to screen the
See Mayer v. Mulod, 988 F.2d 635, 638 (6th Cir.1993). See also, Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007) (clarifying the legal standard for a Rule 12(b)(6) Motion to
Dismiss); Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (same).
pleading under 28 U.S.C. §1915(e) and dismiss it if it fails to state a claim upon which relief can
be granted. The standard for dismissal for failure to state a claim under Rule 12(b)(6) and §
1915(e) are the same.4 When determining whether a Plaintiff has stated a claim upon which
relief may be granted, the Court must construe the Complaint in the light most favorable to the
Plaintiff, accept all factual allegations to be true, and determine whether the Complaint contains
“enough facts to state a claim to relief that is plausible on its face.”5 A Plaintiff is not required to
prove, beyond a doubt, that the factual allegations in the Complaint entitle him to relief, but must
demonstrate that the “[f]actual allegations [are] enough to raise a right to relief above the
speculative level, on the assumption that all the allegations are true.”6 The Plaintiff’s obligation
to provide the grounds for relief “requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.”7
This is Daina’s second attempt to challenge the validity of her mortgage and the state
court judgment in federal court. The doctrine of res judicata stops a party who has received a
final judgment on the merits of a claim from bringing a subsequent lawsuit on the same claim or
from raising a new defense to defeat the prior judgment.8 It bars relitigation of every issue
Haines v. Kerner, 404 U.S. 519, 520 (1972); 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).
Id. at 555.
Twombly, 550 U.S. at 570.
Gargallo v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 918 F.2d 658, 660 (6th Cir. 1990).
actually brought before the Court and every issue or defense that should have or could have been
raised in the previous action.9
This doctrine promotes the finality of judgments, discourages multiple litigation, and
conserves judicial resources.10 A subsequent action will be subject to a res judicata bar only if
the facts supporting the claims and the evidence necessary to sustain each action are the same.
Both of these requirements are met in this case. Daina has raised the same claims for relief and
submitted substantially the same exhibits in support of her claims. She is therefore precluded
from litigating this matter in federal court for a second time.
In addition, the validity of the mortgage was necessarily decided by the state court when
it granted a judgment in favor of Carrington. Daina cannot file a case in federal court to
relitigate issues or claims already were decided by the state courts.11 This Court is required to
give full faith and credit to the state court foreclosure judgment.12
Finally, this Court cannot declare a state court foreclosure judgment or eviction judgment
to be unlawful. United States District Courts do not have jurisdiction to review or overturn state
court decisions.13 Only the United States Supreme Court can review a state court judgment,
either by appeal or by writ of certiorari.14 Under this principle, generally referred to as the
Westwood Chemical Co. v. Kulick, 656 F.2d 1224 (6th Cir. 1981).
Grava v. Parkman Twp., 73 Ohio St.3d 379, 382 (1995).
Id.; Migra v. Warren City School District Board of Educ.465 U.S. 75, 81 (1984).
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 292 (2005).
Rooker-Feldman Doctrine, a party losing his case in state court cannot file an action in a Federal
District Court claiming in essence that the state court judgment itself violated his or her federal
rights.15 To the extent Daina is asking this Court alter the state court judgment of foreclosure or
declare it to be unlawful, the Court lacks subject matter jurisdiction to hear that claim.
Accordingly, Daina’s Application to Proceed In Forma Pauperis is granted, and this
action is dismissed. 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.16
IT IS SO ORDERED.
Dated: January 8, 2018
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
Berry v. Schmitt 688 F.3d 290, 298-99 (6th Cir. 2012). See District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).
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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