Deel et al v. Wells Fargo Bank, N.A. et al
Memorandum of Opinion and Order For the reasons set forth herein, 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. Judge Benita Y. Pearson on 7/28/2017. (JLG)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
LORI L. DEEL, et al.,
WELLS FARGO BANK, N.A., et al.,
CASE NO. 5:16CV1949
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION AND
Pro se Plaintiffs Lori L. Deel and John W. Deel filed this action against Wells Fargo
Bank, N.A. (“Wells Fargo”), Mortgage Electronic Registration Systems, Inc. (“MERS”), Lender
Processing Services, Inc. (“LPS”), and Liquenda Allotey (“Allotey”) to challenge a foreclosure
action filed in the Summit County Court of Common Pleas. Plaintiffs assert claims under the
Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., the Real Estate
Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq., and the Racketeer Influenced
Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. Plaintiffs also assert multiple
state law claims. Plaintiffs seek monetary damages. In addition, Plaintiffs ask that this Court:
vacate judgment in the state court foreclosure action; enjoin the sale of the property through
Sheriff’s auction; void the mortgage and note on the property; award Plaintiffs full,
unencumbered title to the property; and enjoin the Defendants from ever making a claim to the
property or to the monies owed on the mortgage.
On December 1, 2006, Plaintiffs executed a note and mortgage in the amount of
$134,400.00 in favor of Fremont Investment and Loan (“Fremont”) with regard to the property
located at 2820 South Main Street, Akron, Ohio 44319. ECF No. 1, ¶¶ 12-13. Freemont
nominated MERS to act as the mortgagee. Id. at ¶ 15. On March 12, 2009, the note and the
mortgage were transferred to Wells Fargo as Trustee for the Certificate Holders of Carrington
Mortgage Trust, Series, 2007-FRE. Id. at ¶¶ 16-17. Plaintiffs claim this assignment was invalid
because it was "robo-signed" by Allotey. Id. at ¶¶ 18-20, 27-29. At some point in time not
alleged in the Complaint, Plaintiffs defaulted on the mortgage.
For the purposes of judicial efficiency, the Court incorporates by reference prior factual
findings as to the proceedings of Plaintiffs’ foreclosure action in state court. See Deel v. Wells
Fargo Bank, N.A. (“Deel I”), No. 5:15 CV 2042, 2016 WL 1301166, at *1 (N.D. Ohio Apr. 1,
2016) (Lioi, J.). In Deel I, Plaintiff filed an action against Wells Fargo, MERS, LPS, and
Allotey, seeking to vacate the judgment of foreclosure, void the note and mortgage, receive clean
title to the property, and obtain monetary damages. Id. Plaintiffs’ complaint in Deel I listed six
counts, which contained a total of eleven claims. Id. at *2. In Count One, Plaintiffs asserted
claims under the FDCPA, RESPA, and state law “contending [that] they did not receive proper
notice of the transfer of the mortgage into the trust.” Id. Plaintiffs also alleged that Defendants
“misrepresented the legal status of the note and mortgage by claiming a legal interest in them,
and filing a foreclosure action.” Id. In Count Two, Plaintiffs asserted “claims for negligence and
breach of fiduciary duties [on grounds that Plaintiffs] did not authorize the securitization of their
loan, and claimed the securitization process left their note without a lawful owner, making it
void.” Id. In Count Three, they asserted that Defendants “made fraudulent representations to
them, but [did] not indicate what these fraudulent representations were.” Id. Count Four
contained “claims for civil conspiracy stating, without explanation, that [D]efendants jointly and
separately caused them to suffer damages.” Id. In Count Five, Plaintiffs asserted that
Defendants “behaved outrageously and are liable to [Plaintiffs] for intentional infliction of
emotional distress.” Id. Lastly, in Count Six, Plaintiffs asserted that Defendants “violated
[RICO] and the Ohio Corrupt Practices Act (“OCPA”), Ohio Rev. Code § 2923.31, by
attempting to collect an unlawful debt through a pattern of . . . mail fraud, wire fraud, forgery,
and general fraud.” Id. (quotations omitted).
Defendants each filed Rule 12(b)(1) and 12(b)(6) motions to dismiss Plaintiffs’
Complaint in Deel I. Id. On April 1, 2016, another division of the Court dismissed the action on
grounds that: (1) the Rooker-Feldman doctrine divests the Court of jurisdiction to overturn a state
court judgment (Id. at *5-*6); (2) the doctrine of res judicata barred the Court from
reconsidering matters already decided by the state courts (Id. at *6-*7); (3) the statute of
limitations expired for their FDCPA claims (Id. at *7); (4) Defendants are not debt collectors
under the FDCPA (Id.); (5) Plaintiffs failed to allege sufficient facts to suggest they had a
plausible claim under RESPA (Id.); and (6) Plaintiffs’ RICO claim failed because Plaintiffs
failed to allege facts that supported a finding that Plaintiffs’ mortgage was an unlawful debt, nor
did Plaintiffs sufficiently plead that Defendants engaged in two predicate offenses (Id. at *8). Id.
Plaintiffs have now filed the instant action, which is nearly identical to Deel I. In the
instant action, Plaintiffs assert the same claims against the same Defendants based on the same
facts, and seek the same relief.
II. Standard for Dismissal
The Court is required to construe Plaintiffs’ pro se Complaint liberally and to hold
Plaintiffs’ Complaint to a less stringent standard than one drafted by an attorney. Spotts v.
United States, 429 F.3d 248, 250 (6th Cir. 2005) (citing Haines v. Kerner, 404 U.S. 519, 520
(1972)). Pursuant to Apple v. Glenn, 183 F.3d 477 (6th Cir. 1999) (per curiam), District Courts
are permitted to conduct a limited screening procedure and to dismiss, sua sponte, a fee-paid
complaint filed by a non-prisoner if it appears that the allegations are “totally implausible,
attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion.” Apple,
183 F.3d at 479 (citing Hagans v. Lavine, 415 U.S. 528, 536–37 (1974)). Dismissal on a sua
sponte basis is also authorized where the asserted claims lack an arguable basis in law, or if the
District Court lacks subject matter jurisdiction over the matter. 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, 1198 (6th Cir. 1990).
III. Law and Analysis
The doctrine of res judicata dictates that a final judgment on the merits of a claim
precludes a party from bringing a subsequent lawsuit on the same claim or from raising a new
defense to defeat the prior judgment. Gargallo v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
918 F.2d 658, 660 (6th Cir. 1990). It bars relitigation of every issue actually brought before the
court and every issue or defense that should have been raised in the previous action. Id. The
purpose of the doctrine of res judicata is “to promote the finality of judgments and thereby
increase certainty, discourage multiple litigation, and conserve judicial resources.” Westwood
Chemical Co. v. Kulick, 656 F.2d 1224, 1227 (6th Cir. 1981). A subsequent action will be
subject to a res judicata bar only if there is an identity of the facts creating the right of action and
of the evidence necessary to sustain each action. Id. Both of these requirements are met in this
The Court notes that res judicata is an affirmative defense that generally must be raised
by the Defendant. Fed.R.Civ.P. 8(c). However, the Supreme Court of the United States and the
Sixth Circuit Court of Appeals have indicated that a Court may take the initiative to assert the res
judicata defense sua sponte in “special circumstances.” Arizona v. California, 530 U.S. 392, 412
(2000); Hutcherson v. Lauderdale Cty., Tennessee, 326 F.3d 747, 757 (6th Cir. 2003); Holloway
Constr. Co. v. United States Dep’t of Labor, 891 F.2d 1211, 1212 (6th Cir. 1989) (affirming a
District Court’s sua sponte assertion of res judicata where the District Court decided the original
case and adding that “a District Court may invoke the doctrine of res judicata in the interests of,
inter alia, the promotion of judicial economy”). In Arizona, the Supreme Court recognized that a
“special circumstance” exists when “a Court is on notice that it has previously decided the
issue[s] presented.” Arizona, 530 U.S. at 412 (quotations omitted).
The Court is on notice that Plaintiffs have already litigated their claims against
Defendants and the issues presented in this action have already been decided. See Deel v. Wells
Fargo Bank, N.A., No. 5:15 CV 2042, 2016 WL 1301166, at *1 (N.D. Ohio Apr. 1, 2016) (Lioi,
J.). Plaintiffs are, therefore, precluded by the doctrine of res judicata from litigating this matter
for a second time. The Court, hereby, asserts sua sponte that Plaintiffs cannot continue to
litigate this action in this Court. This lawsuit is barred by the doctrine of res judicata.
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.
July 28, 2017
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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