Avery et al v. Bank of New York, Mellon et al
Memorandum Opinion and Order dismissing this matter. An appeal from this decision could not be taken in good faith. Judge John R. Adams on 12/23/11. (K,C)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
DENNIS K. AVERY, et al.,
BANK OF NEW YORK, MELLON, et al., )
CASE NO. 5:11 CV 2729
JUDGE JOHN R. ADAMS
MEMORANDUM OF OPINION
On December 15, 2011, pro se Plaintiffs Dennis K. Avery and Kim P. Avery filed this
action under 42 U.S.C. §§ 1982 and 1983 against Bank of New York, Mellon(“Mellon”), Litton
Loan Servicing, LP (“Litton”), and MDF Financial Services (“MDF”). Plaintiffs seek to stop a
sheriff’s sale of their property, scheduled for December 16, 2011,1 on the grounds that Mellon
falsely represented the terms of a refinanced mortgage loan, Litton falsely represented its authority
to negotiate a loan workout plan on behalf of Mellon, and MDF misrepresented a “money back
guarantee” to successfully negotiate a workout plan with Litton on Plaintiffs’ behalf.
While pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365
(1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court may dismiss an
action sua sponte if the complaint is so “implausible, attenuated, unsubstantial, frivolous, devoid
of merit, or no longer open to discussion” as to deprive the court of jurisdiction. Apple v. Glenn,
183 F.3d 477, 479 (6th Cir. 1999)(citing Hagans v. Lavine, 415 U.S. 528, 536-37 (1974)). The
See, Bank of New York Mellon v. Avery, Summit County Common Pleas Court Case No.
CV-2009-06-4556, at http://www.cpclerk.co.summit.oh.us/PublicSite/Home.aspx.
claims asserted in this action satisfy these criteria.
As an initial matter, this Court cannot vacate the Summit County Common Pleas Court
judgment, nor enjoin the execution of its judgment. United States District Courts do not have
jurisdiction over challenges to state court decisions even if those challenges allege that the state
court’s action was unconstitutional. See District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 483 n. 16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923). Federal
appellate review of state court judgments can only occur in the United States Supreme Court, by
appeal or by writ of certiorari. Id. Under this principle, generally referred to as the Rooker-Feldman
Doctrine, a party losing a state court case is barred from seeking what in substance would be
appellate review of the state judgment in a United States District Court based on the party’s claim
that the state judgment itself violates federal rights. Johnson v. DeGrandy, 512 U.S. 997, 1005-06
(1994). Federal jurisdiction cannot be invoked merely by couching the claims in terms of a civil
rights action. Lavrack v. City of Oak Park, No. 98-1142, 1999 WL 801562, at *2 (6th Cir. Sept. 28,
1999); see Valenti v. Mitchell, 962 F.2d 288, 296 (3d Cir.1992).
The United States Sixth Circuit Court of Appeals has applied two elements to a RookerFeldman analysis. First, in order for the Rooker-Feldman doctrine to apply to a claim presented in
federal district court, the issue before the court must be inextricably intertwined with the claim
asserted in the state court proceeding. Catz v. Chalker, 142 F.3d 279, 293 (6th Cir. 1998); see Tropf
v. Fidelity National Title Insurance Co., 289 F.3d 929, 937 (6th Cir. 2002). “Where federal relief
can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive
the federal proceeding as, in substance, anything other than a prohibited appeal of the state court
judgment.” Catz, 142 F.3d at 293. The Rooker-Feldman doctrine applies when the party losing her
case in state court files suit in federal district court seeking redress for an injury allegedly caused
by the state court's decision itself. Coles v. Granville, 448 F.3d 853, 857-59 (6th Cir. 2006).
Second, the Rooker-Feldman doctrine precludes a district court’s jurisdiction where the claim is a
specific grievance that the law was invalidly or unconstitutionally applied in plaintiff’s particular
case as opposed to a general constitutional challenge to the state law applied in the state action.
To the extent Plaintiffs claim there was not a proper legal basis for the foreclosure action
in state court, they are directly attacking the state court’s decision. Any review of the federal claims
asserted in this context would require the Court to review the specific issues addressed in the state
court proceedings. This Court lacks subject matter jurisdiction to conduct such a review or grant
the relief requested. Feldman, 460 U.S. at 483-84 n. 16; Catz, 142 F.3d at 293.
To the extent
Plaintiffs seek to litigate the foreclosure matter anew, they cannot proceed. A federal court must
give a state court judgment the same preclusive effect it would have in the courts of the rendering
state. 28 U.S.C. § 1738; Dubuc v. Green Oak Township, 312 F.3d 736, 744 (6th Cir. 2002). The
preclusive effect of the previous state court judgment is therefore governed by Ohio law on
preclusion. Id. Under Ohio law, an existing final judgment or decree is conclusive as to all claims
which were or might have been litigated in the first lawsuit. National Amusement, Inc. v.
Springdale, 53 Ohio St. 3d 60, 62 (1990). The doctrine of res judicata requires a plaintiff to present
every ground for relief, or forever be barred from asserting it. Id. The purpose of this doctrine is
to promote the finality of judgments and thereby increase certainty, discourage multiple litigation,
and conserve judicial resources. Allen v. McCurry, 449 U.S. 90, 94 (1980). The Ohio court has
already determined that the mortgage was valid. This Court is bound to give full faith and credit
to the decision of that court. Plaintiffs are therefore barred by the doctrine of res judicata from
litigating these questions again in federal court.
Accordingly, 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.
IT IS SO ORDERED.
Date: December 23, 2011
/s/ John R. Adams
JOHN R. ADAMS
UNITED STATES DISTRICT JUDGE
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