Hollins v. Bank of America N.A.

Filing 10

Memorandum Opinion and Order: For the reasons stated herein, the Court DENIES IN PART and GRANTS IN PART Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction and for Failure to State a Claim (Doc. No. 5 ). Judge Pamela A. Barker on 5/22/2023. (P,K)

Case: 1:22-cv-02261-PAB Doc #: 10 Filed: 05/22/23 1 of 15. PageID #: 325

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANITA HOLLINS,

Case No. 1:22-cv-02261-PAB

Plaintiff,
-vs-

JUDGE PAMELA A. BARKER

BANK OF AMERICA, N.A.,
Defendant.

MEMORANDUM OPINION & ORDER

This matter is before the Court on Defendant Bank of America, N.A.’s (“BANA”) Motion to
Dismiss for Lack of Subject Matter Jurisdiction and for Failure to State a Claim (Doc. No. 5). On
February 26, 2023, Plaintiff Anita Hollins (“Hollins”) filed a Brief in Opposition (Doc. No. 8), to
which BANA replied (Doc. No. 9).
For the following reasons, the Court DENIES IN PART and GRANTS IN PART BANA’s
Motion to Dismiss.
I.

Procedural History
On December 16, 2022, Hollins filed a Complaint against BANA under Federal Rules of Civil

Procedure 60(d)(1) and (d)(3). (Doc. No. 1.) On January 24, 2023, BANA filed the present Motion
to Dismiss for Lack of Subject Matter Jurisdiction under Rule 12(b)(1) or, in the alternative, for
Failure to State a Claim under Rule 12(b)(6). (Doc. No. 5.) On February 26, 2023, Hollins filed a
Brief in Opposition to BANA’s Motion to Dismiss. (Doc. No. 8.) And, on March 2, 2023, BANA
filed a Reply. (Doc. No. 9.)

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II.

Factual Allegations
In her Complaint, Hollins makes the following factual allegations. Hollins owned a house in

Cleveland, Ohio “subject to a Note made to Quicken Loans and a Mortgage made to Mortgage
Electronic Registration System [(“MERS”)] as nominee of Quicken Loans.” (Doc. No. 1 at ¶ 1.)
Quicken Loans “specially endorsed and transferred” the Note to Countrywide Bank, who “allegedly”
further endorsed and transferred the Note “by blank endorsement to” BANA. (Id. at ¶ 2.) BANA
sued Hollins and others in the Cuyahoga County Court of Common Pleas “alleging default on the
Note and seeking to foreclose the equity of redemption of the Mortgage.” (Id. at ¶ 3.)
The assigned magistrate decided that BANA “must present evidence showing: . . . if it is not
the original mortgagee, the chain of assignment and transfers.” (Id. at ¶ 5.) BANA’s attorney
provided the court a mortgage assignment “directly from . . . [MERS] as nominee of Quicken Loans
to [BANA], over the intervening specially endorsed Note holder Countrywide Bank.” (Id. at ¶ 6.)
Hollins raised as a defense that MERS “wrongfully executed” the mortgage assignment “after the
Note and Mortgage had passed to Countrywide Bank by special endorsement.” (Id. at ¶ 7.)
The magistrate decided that Hollins “lack[ed] standing to challenge the validity of the
mortgage assignment.” (Id.) Hollins objected to the magistrate’s decision that she lacked standing.
(Id. ¶ 10.) On June 19, 2018, the state trial court adopted the magistrate’s decision, overruling her
objection. (Id. at ¶ 11.)
Hollins appealed, but the Ohio Eighth District Court of Appeals affirmed. (Id. at ¶ 13.)
Hollins applied for reconsideration and an en banc hearing. (Id. at ¶ 15.) On October 10, 2019, the
state appellate court denied both applications. (Id.) Hollins filed for certification to the Ohio Supreme

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Court, which, on February 18, 2020, the court denied. (Id. at ¶ 16.) On April 11, 2022, Hollins’s
house was sold at a Sheriff Sale for $97,900. (Id. at ¶ 22.)
Hollins alleges that BANA’s attorney provided a “facially false assignment of mortgage” to
the state trial court, which was “fraud . . . directed at the machinery of the court.” (Id. at ¶¶ 28, 32.)
Therefore, Hollins seeks an order from this Court “setting aside the judgment” of the Cuyahoga Court
of Common Pleas “for fraud on the court under Federal Rule[s] of Civil Procedure 60(d)(1) [and
(d)](3).” (Id. at ¶¶ 24, 36.)
III.

Law and Analysis
BANA seeks dismissal of Hollins’s complaint under Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6). (Doc. No. 5.) BANA first argues that this Court lacks subject matter
jurisdiction over Hollins’s complaint under the Rooker-Feldman doctrine. (Id. at p. 1.) Alternatively,
BANA argues that Hollins has failed to state an independent cause of action under Rule 60(d). (Id.)
For the reasons set forth below, the Court finds that it has subject matter jurisdiction over Hollins’s
Complaint, and, therefore, it can proceed to evaluate BANA’s argument and concludes, for the
reasons set forth below, that Hollins has not stated a claim for relief under Rules 12(b)(6) and 60(d).
A.

Subject Matter Jurisdiction

Federal Rule of Civil Procedure 12(b)(1)’s standard of review depends on whether the
defendant makes a facial or factual challenge to subject matter jurisdiction. Wayside Church v. Van
Buren Cty., 847 F.3d 812, 816-17 (6th Cir. 2017). A facial attack “questions merely the sufficiency
of the pleading” and requires the district court to “take[] the allegations in the complaint as true.”
Gentek Bldg. Prods. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). To survive a facial

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attack, a complaint must have a short and plain statement of the grounds for the court’s jurisdiction.
Fed. R. Civ. P. 8(a); Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 387 (6th Cir. 2016).
By contrast, a factual attack “raises a factual controversy requiring the district court ‘to weigh
the conflicting evidence to arrive at the factual predicate that subject-matter does or does not exist.’”
Wayside Church, 847 F.3d at 817 (quoting Gentek Bldg. Prods., Inc., 491 F.3d at 330). The plaintiff
has the burden of proving subject matter jurisdiction when a defendant challenges it. Rogers v.
Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986). A court may allow “affidavits, documents
and even a limited evidentiary hearing to resolve disputed jurisdiction facts.” Ohio Nat’l Life Ins.
Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).
BANA argues that this Court lacks subject matter jurisdiction under the Rooker-Feldman
doctrine because Hollins’s Complaint is “seeking appellate review of the final judgment(s) entered in
the State Court Action.” (Doc. No. 5 at p. 8.) Hollins responds that she is “not seeking appellate
review.” (Doc. No. 8 at p. 5.) Rather, she argues that “the [state court] judgment itself was obtained
by fraud, so Rooker-Feldman does not apply to prevent this Court’s jurisdiction.” (Id.) In its Reply,
BANA asserts that Hollins’s Complaint “would necessarily require this Court to revisit the State
Court Judgment itself and because the claims are so inextricably intertwined with each other RookerFeldman applies and precludes this Court from exercising jurisdiction.” (Doc. No. 9 at p. 4.)
As an initial matter, BANA does not make it clear in its Motion whether it is making a facial
or factual attack on subject matter jurisdiction. Hollins argues in her Opposition that BANA’s attack
is facial. (Doc. No. 8 at p. 7.) The Court agrees. Although BANA attached several documents to its
Motion to Dismiss, all “are either ones specifically referenced in [Hollins’s] [C]omplaint or ones that
were otherwise filed in the foreclosure action and [of] which this Court may take judicial notice.”
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King v. CitiMortgage, Inc., 2011 U.S. Dist. LEXIS 79722 at *11-12 (S.D. Ohio July 20, 2011)
(citations omitted) (construing defendant’s attack as facial even though defendant attached public
documents from the foreclosure proceeding); see also Embassy Realty Invs., LLC v. City of Cleveland,
877 F. Supp. 2d 564, 569 (N.D. Ohio 2012) (same). None of the documents BANA attached “give
rise to a factual controversy” so the Court does not need to “weigh . . . conflicting evidence.” Ohio
Nat’l Life Ins. Co., 922 F.2d 320 at 325. The Court therefore construes BANA’s attack as facial, and
it will take the allegations in Hollins’s Complaint as true. Gentek Bldg. Prods., 491 F.3d at 330; see
also DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004) (determining Rule 12(b)(1) motion to
be a facial challenge where district court made no factual findings).
“The Rooker-Feldman doctrine bars lower federal courts from conducting appellate review of
final state-court judgments because 28 U.S.C. § 1257 vests sole jurisdiction to review such claims in
the Supreme Court.” VanderKodde v. Mary Jane M. Elliott, P.C., 951 F.3d 397, 402 (6th Cir. 2020).
Rooker-Feldman is an “exceedingly narrow limitation on the jurisdiction of district courts.”
Hohenberg v. Shelby Cty., 2023 U.S. App. LEXIS 12363 at *4 (6th Cir. May 19, 2023) (quoting
VanderKodde, 951 F.3d at 400). To determine “whether Rooker-Feldman bars a claim,” a court must
look “to the ‘source of the injury the plaintiff alleges in the federal complaint.’ . . . If the source of
the plaintiff’s injury is the state-court judgment itself, then Rooker-Feldman applies.” Larry E.
Parrish, P.C. v. Bennett, 989 F.3d 452, 456 (6th Cir. 2021) (quoting VanderKodde, 951 F.3d at 402).
“To determine the source of a plaintiff’s injury, a court must look to the requested relief.” Id.
As applied herein, the Rooker-Feldman analysis pulls in opposite directions. On one hand,
the source of Hollins’s injury is the fact that BANA’s attorney allegedly provided the state trial court
“a facially false assignment of mortgage.” (Doc. No. 1 at ¶ 28.) Rooker-Feldman does not apply
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when “a third party’s actions” are the source of the injury. Rose v. Oakland Cty., 2023 U.S. App.
LEXIS 8334 at *22 (6th Cir. Apr. 7, 2023) (quoting VanderKodde, 951 F.3d at 402); see also Lea v.
Tracy Langston Ford, Inc., 2019 U.S. App. LEXIS 38710 at *7 (6th Cir. Dec. 30, 2019) (finding
Rooker-Feldman did not bar fraud claim against defendant’s attorney in state court proceedings). Nor
does it apply to “conduct leading up to the issuance of” an order or judgment. Cunningham v. Dep’t
of Children’s Servs., 842 F. App’x 959, 964 (6th Cir. 2021) (Rooker-Feldman does not apply to
conduct leading up to a juvenile court’s issuance of ex parte order); see also Brown v. First
Nationwide Mortg. Corp., 206 F. App’x 436, 440 (6th Cir. 2006) (Rooker-Feldman does not apply to
conduct during foreclosure proceedings); Hughes v. Deutsche Bank Nat’l Tr. Co., 2019 U.S. Dist.
LEXIS 173763 at *16 (N.D. Ohio Oct. 7, 2019) (same). Here, the actions of BANA’s attorney (a
third party) are the source of Hollins’s injury. And the attorney took those actions leading up to the
state trial court’s judgment. So, the “source of the injury” inquiry suggests that the Rooker-Feldman
doctrine does not bar this Court from entertaining Hollins’s Complaint.
But Hollins’s Complaint specifically seeks “an order setting aside the judgment of the Court
of Common Pleas of Cuyahoga County, State of Ohio, Case Number CV-833789.” In Kost v.
Kreeger, 832 F. App’x 438 (6th Cir. 2021), the plaintiffs litigated a property dispute through all levels
of the Michigan state courts. Id. at 438. After the Michigan Supreme Court denied them leave to
appeal, the plaintiffs sued in federal district court, asserting in their complaint that “[t]his case seeks
to challenge a state judicial decision.” Id. at 439. The Sixth Circuit concluded from this statement
that “the self-declared source of Plaintiff’s injury is Defendant’s state-court judgment.” Id. And it
rejected the plaintiffs’ assertion that “they are not seeking to vacate or reject the state court’s
judgment.” Id.
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Like the plaintiffs in Kost, at every level of the state court system, Hollins raised the defense
that MERS did not have the authority to assign her mortgage to BANA. (Doc. No. 1 at ¶¶ 7, 13, 16.)
While both the Ohio state trial and appellate courts found that she lacked standing to challenge the
mortgage assignment, both nonetheless analyzed and determined that MERS had the authority to
assign the mortgage to BANA. (Doc. No. 5-5 at PageID #234.) Bank of Am. v. Rogers, 2019 WL
1762192 at *8-9 (Ohio App. 8th Dist. Apr. 18, 2019). The Ohio Supreme Court did not accept
Hollins’s appeal, Bank of Am. v. Rogers, 183 N.E.3d 1169 (Ohio 2020), and she now asks a federal
district court to set aside the state court judgment. So, when the Court looks to the “requested relief,”
it suggests that the Rooker-Feldman doctrine bars this Court from entertaining Hollins’s Complaint.
However, the Sixth Circuit has held that while a lower federal court generally may not review
a state court’s judgment, “[a] federal court ‘may entertain a collateral attack on a state court judgment
which is alleged to have been procured through fraud, deception, accident, or mistake.’” In re Sun
Valley Foods Co., 801 F.2d 186, 189 (6th Cir. 1986) (quoting Resolute Ins. Co. v. North Carolina,
397 F.2d 586, 589 (4th Cir. 1968)); see also Simonoff v. Saghafi, 786 F. App’x 582, 586 (6th Cir.
2019) (citing In re Sun Valley Foods and recognizing that Rooker-Feldman does not bar collateral
attacks on state judgments procured through fraud). 1
Here, Hollins alleges that BANA improperly procured its judgment by “providing a fraudulent
document” that “deceived” the state court. (Doc. No. 1 at ¶ 31, 35.) In other words, her Complaint
focuses on “the improper procurement of the judgment” and alleges that BANA “deceived the [state]
[c]ourt into a wrong decree.” Int’l Christian Music Ministry Inc. v. Ocwen Fed. Bank, 289 F. App’x

But see Dale v. Selene Fin. LP, 2016 U.S. Dist. LEXIS 39474 at *10 (N.D. Ohio Mar. 25, 2016) (Carr, J.) (in a case
before Simonoff, a district court questioned whether In re Sun Valley Foods “remains good law,” noting that there is an
“absence of any Sixth Circuit case applying the fraud exception”).
1

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63, 65 (6th Cir. 2008) (citation and internal quotation marks omitted). So, Hollins’s Complaint falls
within the In re Sun Valley Foods exception and outside the “exceedingly narrow set of cases” to
which the Rooker-Feldman doctrine applies. VanderKodde, 951 F.3d at 400; see also Brown, 206 F.
App’x at 440 (6th Cir. 2006) (plaintiff’s “claim that the mortgage foreclosure decree was procured
by fraud is not barred by Rooker-Feldman”).
Accordingly, the Court finds that it has subject matter jurisdiction over Hollins’s Complaint
and, therefore, denies that portion of BANA’s Motion to Dismiss seeking dismissal on the basis of
lack of subject matter jurisdiction.
B.

Failure to State a Claim

Under Rule 12(b)(6), the Court accepts Hollins’s factual allegations as true and construes the
Complaint in the light most favorable to Hollins. See Gunasekera v. Irwin, 551 F.3d 461, 466 (6th
Cir. 2009). To survive a motion to dismiss under this Rule, “a complaint must contain (1) ‘enough
facts to state a claim to relief that is plausible,’ (2) more than ‘a formulaic recitation of a cause of
action’s elements,’ and (3) allegations that suggest a ‘right to relief above a speculative level.’”
Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).
The measure of a Rule 12(b)(6) challenge—whether a complaint raises a right to relief above
the speculative level— “does not ‘require heightened fact pleading of specifics, but only enough facts
to state a claim to relief that is plausible on its face.’” Bassett v. Nat’l Collegiate Athletic Ass’n, 528
F.3d 426, 430 (6th Cir. 2008) (quoting Twombly, 550 U.S. at 555-56). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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Deciding whether a complaint states a claim for relief that is plausible is a “context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.
Consequently, examination of a complaint for a plausible claim for relief is undertaken in
conjunction with the “well-established principle that Federal Rule of Civil Procedure 8(a)(2) requires
only a short and plain statement of the claim showing that the pleader is entitled to relief. Specific
facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.” Gunasekera, 551 F.3d at 466 (quoting Erickson v. Pardus,
551 U.S. 89, 93 (2007)) (internal quotation marks omitted). Nonetheless, while “Rule 8 marks a
notable and generous departure from the hyper-technical, code-pleading regime of a prior era, . . . it
does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”
Iqbal, 556 U.S. at 679.
BANA argues that “no fraud upon the court was committed during the State Court Action.”
(Doc. No. 5 at p. 10.) And even if fraud were committed, Hollins has failed to “timely assert such a
claim.” (Id.) BANA further argues that Hollins had a “full and fair opportunity to challenge” the
mortgage assignment, and her “Complaint is predicated on a misunderstanding of Ohio law.” (Id. at
p. 13.)
In her Opposition, Hollins “abandons her contemplated independent causes of action under
60(d)(1).” (Doc. No. 8 at p. 8.) She only responds to BANA’s motion as to Rule 60(d)(3). (Id.)
Hollins argues that her Complaint is timely because she did not have a “matured cause of action” until
June 6, 2022, when her property was sold at a Sheriff’s Sale. (Id. at p. 9.) Finally, she asserts that
she pleaded enough facts in her Complaint to state a claim for relief under Rule 60(d)(3). (Id.)

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As an initial matter, because Hollins does not oppose BANA’s Motion to Dismiss her Rule
60(d)(1) claim, she has abandoned that claim. Brooks v. Spiegel, 2021 U.S. App. LEXIS 26752 at *7
(6th Cir. Sep. 3, 2021) (citing Doe v. Bredesen, 507 F.3d 998, 1007-08 (6th Cir. 2007)). The Court
will therefore only consider her claim under Rule 60(d)(3).
For the following reasons, the Court finds that Hollins’s Complaint fails to state a claim under
Rule 60(d)(3) because: (1) Rule 60(d)(3) does not empower this Court to set aside a state court
judgment for fraud; and (2) even if it did, Hollins has not stated a claim to relief under Rule 60(d)(3)
that is plausible on its face.
First, Rule 60(d)(3) reads in relevant part: “This rule does not limit a court’s power to: . . . set
aside a judgment for fraud on the court.” The Rule does not grant this Court an additional power,
“but merely allows continuation of whatever power the court would have had to entertain an
independent action if the rule had not been adopted.” 11 Wright & Miller, Federal Practice and
Procedure § 2868 (3d ed.).
The Rule does not indicate on which court the fraud must be committed. Unquestionably, a
plaintiff can bring a Rule 60(d)(3) claim in the same court that issued the judgment. See, e.g., Hunter
v. Sterling Mortg. & Inv. Co., 2022 U.S. App. LEXIS 5797 at *15 (6th Cir. Mar. 4, 2022). Some
courts have also permitted parties to bring independent actions in other federal courts. See, e.g.,
Morrel v. Nationwide Mut. Fire Ins. Co., 188 F.3d 218, 223 (4th Cir. 1999). But “the majority of
cases hold that the federal courts cannot enjoin the enforcement of state judgments.” 11 Wright &
Miller, Federal Practice and Procedure § 2868 (3d ed.).
Rule 1 provides in relevant part: “These rules govern the procedure in all civil actions and
proceedings in the United States district courts . . . .” Fed. R. Civ. P. 1 (emphasis added). So, in
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interpreting that portion of Rule 60(d)(3) which provides that the Rule “does not limit a court’s
power,” it is referring to “a [district] court’s power.” Fed. R. Civ. P. 60(d)(3). Similarly, when the
Rule provides that a court has the power to “set aside a judgment for fraud on the court,” it is referring
to “fraud on the [district] court.” Id.; see also Aaron v. Michigan, 2011 U.S. Dist. LEXIS 133866, at
*2 (E.D. Mich. Nov. 21, 2011) (citing Rule 1 and reaching same result).
Policy considerations support this interpretation:
It is appropriate that the court that has been victimized by fraud be the one to redress
the wrong, rather than a court of another sovereign. It is generally recognized that a
motion in the court that rendered judgment, rather than an independent action for
relief, is the preferable remedy. . . . Those who argue for federal power in these
circumstances concede that the federal court cannot permit relitigation of matters that
have already been decided in the state court. . . . The line between those things
properly decided and new allegations of fraud is frequently unclear, and the state court
that decided the case is in the best position to draw the line.
11 Wright & Miller, Federal Practice and Procedure § 2868 (3d ed.) (quoting ALI, Study of the
Division of Jurisdiction between State and Federal Courts, Official Draft 1969, pp. 311-12).
Other district courts in this circuit have reached similar conclusions. E.g., Buchanan v.
Midland Funding LLC, 2017 U.S. Dist. LEXIS 153131 at *16 (W.D. Mich. Aug. 28, 2017) (finding
that plaintiff who claimed defendants perpetuated fraud on a state court “is seeking a remedy in the
wrong court”); Hiles v. NovaStar Mortg., Inc., 2015 U.S. Dist. LEXIS 97595 at *4 (S.D. Ohio July
27, 2015) (“[I]f a plaintiff believes that a state court judgment was obtained by fraud on the state
court, the plaintiff’s remedy is by way of a motion for relief from judgment under state law (and
before the state court), not by way of a collateral attack on that court’s judgment in federal court.”);
Lamie v. Wright, 2014 U.S. Dist. LEXIS 59322 at *32 (W.D. Mich. Mar. 14, 2014) (“The universal
rule in the federal courts . . . is that an equitable action to set aside a judgment may only be heard by
the court whose judgment is challenged.”), R&R adopted, Lamie v. Wright, 2014 U.S. Dist. LEXIS
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92191 at *1 (W.D. Mich. July 8, 2014); Hicks v. City of Barberton, 2012 U.S. Dist. LEXIS 163608
at *18 (N.D. Ohio Nov. 15, 2012) (“[Plaintiff] has not shown that defendants engaged in conduct
directed toward deceiving this Court and therefore, his request for relief pursuant to Rule 60(d)(3) is
denied.”); Sessley v. Wells Fargo Bank, N.A., 2012 U.S. Dist. LEXIS 29661 at *25 (S.D. Ohio Mar.
6, 2012) (“If the plaintiffs believed that the judgment against them was obtained by a fraud committed
on the [state] court, that argument should have been made in a Rule 60 motion to that court.”).
Second, even if Rule 60(d)(3) empowered this Court to set aside the state court judgment,
Hollins has not stated a claim to relief under Rule 60(d)(3) that is plausible on its face. Rule 60(d)(3)
requires conduct:
1) on the part of an officer of the court; that 2) is directed to the judicial machinery
itself; 3) is intentionally false, willfully blind to the truth, or is in reckless disregard
for the truth; 4) is a positive averment or a concealment when one is under a duty to
disclose; and 5) deceives the court.
Hunter v. Sterling Mortg. & Inv. Co., 2022 U.S. App. LEXIS 5797 at *14 (6th Cir. Mar. 4, 2022)
(quoting Carter v. Anderson, 585 F.3d 1007, 1011 (6th Cir. 2009)). Hollins must prove fraud on the
court by clear and convincing evidence. Id.
Fraud on the court means fraud “which does or attempts to, subvert the integrity of the court
itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform
in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Id.
(quoting Gen. Med., P.C. v. Horizon/CMS Health Care Corp., 475 F. App’x 65, 71 (6th Cir. 2012)).
The fraud must be “the most egregious conduct involving a corruption of the judicial process itself.”
Gen. Med., P.C., 475 F. App’x 65 at 71. Rule 60(d) is “available only to prevent a grave miscarriage
of justice, which is a demanding standard.” Hunter, 2022 U.S. App. LEXIS 5797 at *7 (quoting
United States v. Beggerly, 524 U.S. 38, 47 (1998)) (internal quotation marks omitted). Lastly, Rule
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60(d) “has no time limitation.” 2 Kennard v. Means Indus., 2019 U.S. App. LEXIS 9705 at *3 (6th
Cir. Apr. 2, 2019) (quoting Rodriguez v. Schwartz, 465 F. App’x 504, 508 (6th Cir. 2012)).
Hollins satisfies the first element by alleging that BANA’s attorney, “an officer of the court,”
perpetrated the fraud. (Doc. No. 1 at ¶ 28.) She also satisfies the second element by alleging that the
attorney directed the fraud “at the machinery of the court.” (Id. at ¶ 32). And she satisfies the third
and fourth elements by alleging that the fraud “was a positive statement which was false” and “in
reckless disregard for the truth.” (Id. at ¶¶ 33, 35.) The Court must accept Hollins’s allegations as
true. See Gunasekera, 551 F.3d at 466.
But Hollins fails to satisfy the fifth and final element: that the fraud “deceives the court.”
While a district court is generally confined to considering only the pleadings in a motion to dismiss,
the court may “take judicial notice of ‘matters of public record, orders, items appearing in the record
of the case, and exhibits attached to the complaint.’” Elec. Merch. Sys. LLC v. Gaal, 58 F.4th 877,
883 (6th Cir. 2023) (citation omitted). Specifically, a court may “take judicial notice of another
court’s opinion not for the truth of the facts recited therein, but for the existence of the opinion.”
Hancock v. Miller, 852 F. App’x 914, 919 (6th Cir. 2021) (citing Winget v. JP Morgan Chase Bank,
N.A., 537 F.3d 565, 576 (6th Cir. 2008)).
Hollins alleges that the state trial court “was deceived by the Assignment of Mortgage,
necessarily accepting it at face value as a valid assignment of the Mortgage to [BANA].” (Doc. No.
1 at ¶ 35.) This Court does not need to “accept as true legal conclusions or unwarranted factual

BANA argues that Hollins did not file her Complaint “within a reasonable time” and cites an unpublished Sixth Circuit
case, Buell v. Anderson, 48 F. App’x 491 (6th Cir. 2002), in support. Buell did not impose a time limit. Id. at 498. Rather,
it recognized that because independent actions “are not time-limited,” they “will only prevail to prevent ‘a grave
miscarriage of justice.’” Id. (quoting Beggerly, 524 U.S. at 46). Without controlling Sixth Circuit case law, the Court
will not impose a time limit on Hollins’s Rule 60(d)(3) action.

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inferences.” Lewis v. ACB Bus. Servs., 135 F.3d 389, 405 (6th Cir. 1998). The Court does not accept
Hollins’s legal conclusion that the state trial court was deceived. Nor does it accept Hollins’s factual
inference that the state trial court “necessarily accept[ed]” the mortgage assignment “at face value as
a valid assignment.” (Doc. No. 1 at ¶ 35.) While the state trial court found Hollins lacked standing
to challenge the validity of the mortgage assignment, it also explicitly found that the mortgage
assignment was “properly executed and recorded.” (Doc. No. 5-5 at PageID #234.) Hollins appealed
the state trial court’s finding, but the state appellate court affirmed, and it found that “Ohio law is
clear that MERS has authority to assign a mortgage when it is designated as both nominee and
mortgagee.” Bank of Am. v. Rogers, 2019 WL 1762192 at *8.
Moreover, the specific fraud that Hollins’s complaint alleges is that BANA’s attorney failed
“to present into evidence proofs of the chain of assignments of mortgage.” (Doc. No. 1 at ¶ 17). Even
if this Court accepts as true the allegation that BANA’s attorney failed to submit certain evidence,
such “fraud” is hardly “egregious conduct” that corrupts “the judicial process itself.” Gen. Med.,
P.C., 475 F. App’x 65 at 71. Examples of conduct meeting this high standard are “bribing a judge,
employing counsel to exert improper influence on the court, and jury tampering.” Id. Failing to
present evidence does not rise to this level. See Kennard, 2019 U.S. App. LEXIS 9705 at *3 (agreeing
that nondisclosure of pertinent facts to a court, without more, does not constitute fraud on the court).
Accordingly, the Court grants BANA’s Motion to Dismiss for Failure to State a Claim.
IV.

Conclusion
For the reasons set forth above, the Court DENIES IN PART and GRANTS IN PART

BANA’s Motion to Dismiss (Doc. No. 5).

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Case: 1:22-cv-02261-PAB Doc #: 10 Filed: 05/22/23 15 of 15. PageID #: 339

IT IS SO ORDERED.
s/Pamela A. Barker
PAMELA A. BARKER
U. S. DISTRICT JUDGE

Date: May 22, 2023

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