Oliver v. Two Point Mortgage Trust 2017 et al

Filing 17

Memorandum Opinion and Order. The Conwell Defendants' Motion to Dismiss the Plaintiff's Complaint (Doc. No. 12 ) is granted with respect to her § 1983 claims, and all of the Plaintiff's remaining federal claims in the cas e are dismissed pursuant to the court's authority established in Apple v. Glenn.The Plaintiff's Motion for Default Judgment (Doc. No. 8) is denied as moot.There being no viable federal claim in the case, the court declines to exercisesupple mental jurisdiction over the Plaintiff's state-law claims, which are better resolved by the Ohio courts. The state-law claims, accordingly, are dismissed without prejudice. The court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Signed by Judge Solomon Oliver, Jr, on 4/28/2021. (R,Sh)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SHEILA OLIVER, Pro Se,
Plaintiff
v.
TOWD POINT MORTGAGE TRUST
2017, et al.,

Defendants

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Case No.: 1: 20 CV 2427

JUDGE SOLOMON OLIVER, JR.

MEMORANDUM OF OPINION
AND ORDER

Background
This is a fee-paid civil action filed by pro se Plaintiff Sheila Oliver. Plaintiff filed her
Complaint on October 22, 2020 against four Defendants: Towd Point Mortgage Trust 2017, U.S.
National Bank Association (“Towd Point”); Towd Point’s legal counsel Manley, Deas, Kochalski
LLC; Jocelyn Conwell, LLC; and Jocelyn Conwell. (Doc. No. 1.)
Although the Complaint is not entirely clear, it pertains to the Plaintiff’s failure to make
payments on her mortgage loan, her filing for bankruptcy, and the sale of her property. She alleges
she signed an “unconscionable contract” to purchase her residence located on Lambert Road in
Cleveland (id. at 2), and that after she fell several months behind in paying her mortgage, her
attorney, Defendant Jocelyn Conwell, did not afford her “knowledge of different options regarding
the foreclosure procedure” and did not give her any alternatives,” including a short sale and lease
option, “to keep her house.” (Id. at 5.) She complains she was persuaded to think that her only

option was to file Chapter 7 Bankruptcy. (Id. at 6.)
In addition, the Plaintiff complains that after an order was entered on May 5, 2020 in her
bankruptcy case granting a motion for relief from stay and abandonment, “the automatic stay was
terminated as an abandonment of the subject property.” (Id. at 5.) She complains her “property was
never prosecuted in the proper manner” and that the subsequent sale of the property was somehow
“fraudulent.” (Id. at 10.)
Alleging violations of 42 U.S.C. § 1983, conspiracy to interfere with civil rights under 42
U.S.C. § 1985, and violations of 42 U.S.C. § 1986, as well as state-law claims for “malicious abuse
of process” and intentional infliction of emotional distress, she seeks monetary damages. (See id.
at 6-11, “Counts and Charges.”)
Defendants Jocelyn Conwell, LLC and Jocelyn Conwell (collectively, “the Conwell
Defendants”) filed a motion for an extension of time to respond to the Plaintiff’s Complaint on
February 2, 2021, which the court granted on February 16, 2021, the same day the Plaintiff filed a
Motion for Default Judgment (Doc. No. 8). The Conwell Defendants thereafter filed a Motion to
Dismiss the Complaint as against them pursuant to Fed. R. Civ. P. Rule 12(b)(6). (Doc. No. 12.)
That motion is now fully briefed.
In their motion, the Conwell Defendants argue that the Plaintiff’s Complaint fails to state any
plausible federal constitutional claim against them under § 1983 because they are not state actors,
and that her Complaint otherwise fails to allege plausible state-law claims. The Conwell Defendants
do not specifically address the Plaintiff’s claims of conspiracy under 42 U.S.C. §§ 1985 and 1986.
Additionally, neither of the other two Defendants (i.e., Manley, Deas, Kochalski LLC and Towd
Point (collectively, the “Towd Point Defendants”) has answered or otherwise responded to the
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Plaintiff’s Complaint, although an attorney at Manley, Deas has filed an appearance on behalf of
Towd Point.
Standard of Review
A complaint is subject to dismissal under Fed. R. Civ. P. 12(b)(6) if it fails to state claim on
which relief may be granted. To survive a Rule 12(b)(6) dismissal, the “complaint must present
‘enough facts to state claim to relief that is plausible on its face’” when its well-pleaded factual
allegations are presumed true and all reasonable inferences are drawn in the non-moving party’s
favor. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross and Blue Shield, 552 F.3d 430,
434 (6th Cir. 2008), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Although pro se
pleadings generally are entitled to a liberal construction, Erickson v. Pardus, 551 U.S. 89, 94 (2007),
even pro se complaints must satisfy this standard to avoid a dismissal. See Barnett v. Luttrell, 414
F. App’x. 784, 786 (6th Cir. 2011).
Further, “[i]t is well-established that the federal courts are under an independent obligation
to examine their own jurisdiction.” Kusens v. Pascal Co., Inc., 448 F.3d 349, 359 (6th Cir. 2006).
Federal district courts “may, at any time, sua sponte dismiss” any complaint, even a fee-paid
complaint, “for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure when the allegations of [the] complaint are totally implausible, attenuated,
unsubstantial, frivolous, devoid of merit, or no longer open to discussion.” Apple v. Glenn, 183 F.3d
477, 479 (6th Cir. 1999).
Discussion
Upon review, the court finds that all of the Plaintiff’s federal claims in this case are
subject to dismissal pursuant to Rule 12(b)(6) and/or Apple v. Glenn.

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In order to state a claim under § 1983, a plaintiff must allege that she suffered a
deprivation of a right secured by the federal Constitution or laws of the United States by a person
acting under color of state law. Smith v. Hilltop Basic Resources, Inc., 99 F. App’x 644, 645–46,
(6th Cir. 2004). As the Conwell Defendants assert in their motion (see Doc. No. 12 at 4) and the
Plaintiff concedes in her opposition brief (see Doc. No. 14 at 1), Defendant Jocelyn Conwell is a
private attorney practicing in her private law firm, Jocelyn Conwell LLC, and represented the
Plaintiff in a bankruptcy proceeding. Private attorneys do not act under color of state law and are
not state actors for purposes of § 1983 by virtue of representing clients in court proceedings.
Smith, 99 F. App’x 644. Accordingly, the Conwell Defendants cannot be held liable under §
1983.
Additionally, even though the Towd Point Defendants have not answered or otherwise
responded to the Plaintiff’s Complaint, the court on its own review finds that the Complaint on
its face indicates that they, too, are not state actors subject to suit for constitutional violations
under § 1983. The Plaintiff’s Complaint and attachments indicate that Towd Point is a private
creditor in connection with the Plaintiff’s mortgage loan and that Manley Deas is a private law
firm. Nothing in the Plaintiff’s Complaint suggests that either of the Towd Point Defendants
engaged in state action in any way in connection with the Plaintiff’s mortgage loan or
bankruptcy. Accordingly, the court finds the Plaintiff’s Complaint is implausible and devoid of
merit to the extent it alleges claims under § 1983 against any of the Defendants in the case.
Further, upon its own review, the court finds the Plaintiff’s Complaint totally implausible
and devoid of merit to the extent it alleges federal claims against any of the Defendants under 42
U.S.C. §§ 1985 and 1986.

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Section 1985 provides remedies to private persons injured by certain conspiracies to
violate civil rights. But § 1985 does not apply to all alleged conspiratorial conduct. It applies
only to conspiracies involving racial, or other traditionally cognizable class-based discriminatory
animus. Radvansky v. City of Olmsted Falls, 395 F.3d 291, 314-15 (6th Cir. 2005); see also
Miller v. Countrywide Home Loans, 747 F.Supp. 2d 947, 955 (S.D. Ohio 2010). To state a
claim, a plaintiff must demonstrate: (1) a conspiracy; (2) for the purpose of depriving, either
directly or indirectly, any person or class of persons of the equal protection of the laws, or of
equal privileges or immunities of the laws; (3) an act in furtherance of the conspiracy; (4)
whereby a person is either injured in his person or property or deprived of any right or privilege
of a citizen of the United States. Radvansky, 395 F.3d at 314.
Nothing in the Plaintiff’s Complaint is suggestive of the elements. The Plaintiff’s
Complaint is premised on her contentions that her lawyer did not provide her alternatives to
filing for bankruptcy after she admittedly fell behind in making her mortgage payments and/or
that proper foreclosure procedure was somehow not followed in her case. Nothing alleged in her
Complaint suggests that she claims, or could claim, a conspiracy involving racial or other
traditionally cognizable class-based discriminatory animus. Accordingly, the court finds her
claims under § 1985 subject to dismissal under Apple v. Glenn as without merit.
The court likewise finds her claims under § 1986 subject to dismissal. “Where [a]
plaintiff has stated no cause of action under § 1985, no cause of action exists under § 1986.”
Braley v. City of Pontiac, 906 F.2d 220, 227 (6th Cir. 1990).
In sum, upon its own review of the Plaintiff’s Complaint and the Conwell Defendants’
Motion to Dismiss, the court finds that all of the Plaintiff’s alleged federal claims are subject to

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dismissal either under Rule 12(b)(6) and/or Apple v. Glenn.
Conclusion
Accordingly, the Conwell Defendants’ Motion to Dismiss the Plaintiff’s Complaint (Doc.
No. 12) is granted with respect to her § 1983 claims, and all of the Plaintiff’s remaining federal
claims in the case are dismissed pursuant to the court’s authority established in Apple v. Glenn.
The Plaintiff’s Motion for Default Judgment (Doc. No. 8) is denied as moot.
There being no viable federal claim in the case, the court declines to exercise
supplemental jurisdiction over the Plaintiff’s state-law claims, which are better resolved by the
Ohio courts. The state-law claims, accordingly, are dismissed without prejudice. See Perry v.
Se. Boll Weevil Eradication Found., 154 F. App'x 467, 478 (6th Cir. 2005) (“Although the
plaintiffs may very well have valid state-law tort claims, once the district court dismissed the
core federal claims from the case, it was appropriate for it to dismiss, without prejudice, the state
claims, so that the plaintiffs may pursue these claims in a more appropriate forum.”).
The court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this
decision could not be taken in good faith.
IT IS SO ORDERED.

/s/ SOLOMON OLIVER, JR.
SOLOMON OLIVER, JR.
UNITED STATES DISTRICT JUDGE
Dated: April 28, 2021

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