Brantley v. Citimortgage
ORDER that the automatic stay provision of 11 USC 362(a) does not apply and no stay of this litigation is in effect pursuant to that provision. REPORT AND RECOMMENDATION that defendant's 8 MOTION to Dismiss for Lack of Jurisdiction and Motion for Declaration of Plaintiff as Vexatious Litigator be Granted insofar as defendant moves to dismiss the complaint and be Denied with respect to defendant's request to declare plaintiff a vexatious litigator. Plaintiff's claims be D ismissed and this case be closed on the docket of the Court. ( Objections to R&R due by 11/4/2016). Signed by Magistrate Judge Karen L. Litkovitz on 10/18/2016. (art)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STA TES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Case No. l :16-cv-707
ORDER AND REPORT
Plaintiff Phillip Brantley brings this action seeking declaratory and injunctive relief
against defendant CitiMortgage in connection with property that was the subject of foreclosure
proceedings in state court. (Doc. 1). The matter is before the Court on (I) defendant's motion to
dismiss the complaint and to declare plaintiff a vexatious litigator (Doc. 8), plaintiffs opposing
memorandum (Doc. I 1), and defendant's reply (Doc. 12), and (2) defendant's response to the
Court's Order to show cause why this matter should not be stayed due to plaintiffs pending
bankruptcy proceedings (Doc. 14).
I. Defendant's response to the Court's Order to Show Cause (Doc. 14)
Defendant filed its Motion to Dismiss and Motion for Declaration of Plaintiff as
Vexatious Litigator on July 25, 2016. (Doc. 8). In the motion, defendant advised the Court that
plaintiff has filed four Chapter 13 bankruptcy petitions in the Southern District of Ohio since
June 2, 2015. (Id. at 7, citing Exhs. V to EE). Plaintiff filed the most recent petition, No. 1: l 6bk-12458, on June 30, 2016, the day after he filed the complaint in this matter. 1 (Id., citing Exh.
The Court "may take judicial notice of proceedings in other courts of record ...." Rodie v. Thistledown Racing
Club, Inc., 615 F.2d 736, 738 (6th Cir. I 980) (quoting Granader v. Public Bank, 417 F.2d 75 , 82-83 (6th Cir.
EE). That petition remains pending before the Bankruptcy Court. 2 (Id.). This Court therefore
ordered that the parties show cause in writing within 15 days why this matter should not be
stayed pursuant to 11 U.S.C. § 362 during the pendency of the bankruptcy proceedings. (Doc.
13). Plaintiff did not file a response to the Order to Show Cause. Defendant filed a response
asserting that this Court is not required to stay the case pursuant to the Bankruptcy Code, 11
U.S.C. § 362(c)(4). (Doc. 14). Section 362(c)(4)(A) provides:
(i) if a single or joint case is filed by or against a debtor who is an individual
under this title, and if 2 or more single or joint cases of the debtor were pending
within the previous year but were dismissed, other than a case refiled under a
chapter other than chapter 7 after dismissal under section 707(b), the stay under
subsection (a) shall not go into effect upon the filing of the later case; and
(ii) on request of a party in interest, the court shall promptly enter an order
confirming that no stay is in effect[.]
11 U.S.C. § 362(c)(4)(A). Defendant contends the District Court is not required to stay this
action because plaintiff filed two or more Chapter 13 petitions within the year preceding his most
recent bankruptcy filing which were dismissed by the Bankruptcy Court.
Defendant's argument is well-taken. Plaintiff filed two Chapter 13 bankruptcy petitions
in the year preceding his most recent bankruptcy filing on June 30, 2016: (1) Case No. 15-bk13794, which was filed on October 1, 2015 and dismissed on November 17, 2015; and (2) Case
No. 16-10600, which was filed on February 25, 2016 and dismissed on April 15, 2016. Because
these two bankruptcy cases were dismissed within one year of the filing of the June 30, 2016
bankruptcy petition, the automatic stay never went into effect. See Miley v. Thornburg Mortgage
Home Loans, No. 1:14-cv-2819, 2014 WL 11485571 , at *2-*3 (N.D. Ga. Sept. 9, 2014) (and
The earlier cases plaintiff filed are: ( 1) Case No. l 5-bk-23293, which was filed on June 2, 20 15 and dismissed on
July 23, 2015; (2) Case No. 15-bk- 13794, which was filed on October I, 20 15 and dismissed on November 17,
2015; and (3) Case No. 16-bk-10600, which was filed on February 25 , 2016 and dismissed on April 15, 2016. (Doc.
8, Exhs. V to EE). Each of these cases was dismissed due to plaintiff's failure to file a plan and/or schedules. (Id.).
cases cited therein). Pursuant to § 362(c)(4)(A)(i), the automatic stay provision of 11 U.S.C. §
362(a) does not apply to stay the instant case. Thus, the Court confirms no stay of the current
case is in effect.
II. Defendant's motion to dismiss the complaint and declare plaintiff a vexatious litigator
Defendant CitiMortgage moves the Court to dismiss the complaint with prejudice
pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) on the grounds the Court lacks subject matter
jurisdiction over the complaint pursuant to the Rooker-Feldman doctrine; plaintiff's complaint is
barred under the doctrines of res judicata and collateral estoppel; and the factual allegations of
the complaint fail to state a claim upon which relief can be granted. (Doc. 8). In addition,
defendant seeks to have plaintiff declared a vexatious litigator in light of the numerous state
court actions and bankruptcy petitions he has previously filed based on the same set of facts.
Plaintiff's arguments in response to defendant's motion are difficult to decipher. (Doc.
11). Plaintiff appears to argue that defendant's motion to dismiss is premature based on the
status of the pending bankruptcy proceedings. Plaintiff also denies that he is a vexatious litigator
and contends he has acted in good faith by persistently presenting his defenses and supporting
In reply, defendant alleges that plaintiff has not presented any arguments in opposition to
the arguments raised in its motion; he has not cited any legal authority or articulated any basis
for the Court to exercise jurisdiction over his claims; and plaintiff appears to have conflated his
bankruptcy filing with this case, which bears no relation to plaintiff's bankruptcy proceeding.
A. Defendant's motion to dismiss
1. Allegations of the complaint
Plaintiff Philip Brantley filed the complaint and a motion for a temporary restraining
order and injunctive relief against defendant in this Court on June 29, 2016. (Docs. I, 2).
Plaintiff makes the following allegations in the complaint: Plaintiff and Bobbie Brantley are the
legal title owners of property located at 11948 Gaylord, Cincinnati, Ohio 45240 (the
"Property"). 3 (Doc. 1, ii 1). Defendant CitiMortgage is the servicer of the promissory note on
the Property. (Id.,
CitiMortgage brought a lawsuit against plaintiff for breach of contract.
(Id., pp. 2-3). A title search purportedly disclosed that the mortgage on the Property was
fraudulently transferred multiple times. (Id. , p. 3). The mortgage was assigned to CitiMortgage
by assignment recorded on October 9, 2012. (Id., p. 5). Prior to that date, on or about June
2011, plaintiff stopped making payments on the loan after losing his job the preceding month.
(Id.). After unsuccessfully attempting to obtain a loan modification, plaintiff sent a notice of
rescission to defendant by certified mail with a return receipt on June 1, 2016, notifying
defendant of plaintiff's intent to rescind the loan. (Id.; Exhs. 1, 2). Plaintiff waited 20 days for
defendant "to take possession of the property tendered as part of the rescission" before sending a
"Notice of Default for the Rescission" to defendant. 4 (Id., p. 5).
Plaintiff brings a claim against CitiMortgage under the Truth in Lending Act (TILA), 15
U.S.C. § 1635, based on defendant's alleged failure to take possession of the Property after
The complaint indicates that Bobbie Brantley is also a plaintiff in this action (Doc. 1, ~ I), which is not accurate.
The only plaintiff in this pro se action is Phillip Brantley.
Plaintiff cites Exhibit 3 to the complaint in connection with this allegation. (Doc. 1, p. 5). However, there is no
such exhibit attached to the complaint.
plaintiff "tendered" it. 5 (Id., p. 3). Plaintiff alleges that defendant failed to take possession of the
Property within 20 days as purportedly required by§ 1635 and has therefore forfeited any claim
against plaintiff "for the obligation owed." (Id., p. 6). Plaintiff seeks a judgment declaring that
"the debt obligation attached to the real property is discharged"; enjoining defendant from
further collection activities and foreclosure actions against plaintiff related to the loan; enjoining
defendant from reporting the debt obligation to collection agencies; and ordering that the
"original wet ink signature of the promissory note" be returned to plaintiff. (Id., p. 7).
Plaintiff filed a motion for temporary restraining order and injunctive relief on June 29,
2016, seeking to enjoin a sheriffs sale of the Property which was scheduled to occur the
following day. (Doc. 2). Plaintiff attached an affidavit to the motion alleging that CitiMortgage
had failed to provide documents that plaintiff requested on August 17, 2016, to demonstrate that
it is the holder of the note on the Property. 6 (Doc. 2, Plaintiffs Aff. ). Plaintiff attached a second
affidavit stating that he sent a notice of rescission to CitiMortgage on June 1, 2016, and that
Ci ti Mortgage sent a reply on June 27, 2016, which plaintiff received the next day. (Id., Doc. 21). In the response regarding Loan Number 5002928417, counsel for CitiMortgage stated that
defendant had received plaintiffs "Notice of Rescission and Tender" and had reviewed the letter
and loan file. (Doc. 2-1, p. 2). Counsel advised plaintiff that under TILA, a borrower's right to
rescind expires three years after the loan closing or upon the sale of the property, whichever
Section 1635 gives the obligor in a consumer credit transaction in which a security interest in an obligor's principal
dwelling is acquired the right to rescind the transaction within a specified time period and provides that ownership
of the property vests in the obligor with no obligation to pay for it if the creditor does not take possession of the
property within a specified period of time after tender by the obligor. 15 U.S.C. § 1635.
This date is obviously incorrect because plaintiff signed the affidavit on June 28, 2016.
occurs first, and that plaintiffs right to cancel expired on September 14, 2008. 7 (Id.) . The letter
concluded by advising plaintiff that his "Notice of Rescission and Tender" was of no effect.
2. Dismissal pursuant to the Rooker-Feldman doctrine
Defendant moves to dismiss plaintiffs complaint pursuant to Fed. R. Civ. P. 12(b)(I) for
lack of jurisdiction under the Rooker-Fe/dman doctrine based on the history of state court
foreclosure proceedings on the Property. Plaintiff has not addressed this issue in his response to
the motion to dismiss.
Federal courts lack authority under the Rooker-Feldman doctrine to sit as state appellate
courts to review state court detenninations. See District of Columbia Court ofAppeals v.
Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). The
Rooker-Feldman doctrine applies to deprive a district court of subject matter jurisdiction "only
when a plaintiff complains of injury from the state court judgment itself." Coles v. Granville,
448 F.3d 853, 858 (6th Cir. 2006). The Rooker-Feldman doctrine "stands for the proposition
that a federal district court may not hear an appeal of a case already litigated in the state court."
United States v. Owens, 54 F.3d 271, 274 (6th Cir. 1995). The Supreme Court has reaffirmed
that the Rooker-Feldman doctrine applies where a case is brought by a loser in a state court
action, complaining of injuries caused by the state court's judgment rendered before the district
court proceedings commenced and inviting the district court to review and reject that judgment.
See Exxon Mobile Corp. v. Saudi Basic Indus. Corp. , 544 U.S. 280, 284 (2005). The crucial
question is whether the "source of injury" upon which the plaintiff bases his federal claim is a
Section 1635(£) provides that "An obligor's right of rescission shall expire three years after the date of
consummation of the transaction or upon the sale of the property, whichever occurs first, notwithstanding the fact
that the information and forms required under this section or any other disclosures required under this part have not
been delivered to the obligor[.)"
state court judgment. Lawrence v. Welch, 531 F.3d 364, 368 (6th Cir. 2008). See also Mines v.
Franklin Savings & Loan, No. 1:09-cv-914, 2011 WL 882976, at *2 (S.D. Ohio Jan. 31, 2011)
(Report and Recommendation), adopted as modified, 2011 WL 886128 (S.D. Ohio Mar. 10,
2011). "If the source of the injury is the state court decision, then the Rooker-Feldman doctrine
would prevent the district court from asserting jurisdiction." Lawrence, 531 F .3d at 368 (citation
After hearing oral arguments on plaintiffs motion for a temporary restraining order filed
in this case, the District Judge denied the motion on the ground plaintiff is barred by the
doctrines of Rooker-Feldman and res judicata from litigating his TILA claim in this Court. (Id.
at 4). A review of the record shows that the Property has been the subject of four lawsuits filed
by the parties to this lawsuit in state court, three of which were filed by plaintiff and one of
which was filed by CitiMortgage. The history of the state court litigation concerning the
Property and the loan on the Property dates back to October 22, 2012, when plaintiff filed a
complaint in the Hamilton County Court of Common Pleas for declaratory relief alleging that
CitiMortgage did not have standing to foreclose on the Property and asserting additional claims
for fraud, intentional infliction of emotional distress, quiet title, slander of title, rescission, and
violations of TILA and the Real Estate Settlement Procedures Act (RESP A). (Doc. 8, Exh. H,
Case No. Al2082450, Complaint). The Common Pleas Court granted Citimortgage' s motion for
summary judgment on June 3, 2013, after plaintiff failed to respond, and plaintiff did not appeal
the judgment. (Id., Exhs. I, J, K). Plaintiff filed another action against CitiMortgage related to
the Property and loan in the Hamilton County Court of Common Pleas on February 9, 2015,
alleging "trespass" and "administering property without rights." (Id., Exh. L, Case No.
A I 500708, Complaint). The Common Pleas Court granted the motion to dismiss on March I 7,
2015, and plaintiff did not appeal the decision. (Id., Exhs. M , N , 0). Plaintiff filed a third action
against CitiMortgage related to the Prop erty and loan in Hamilton County Small Claims Court on
September 25, 2015 , for "Failure to Rspond [sic] to Qualified written request pursuant to
[RESPA]," 12 U.S.C. §2605(e). (Id. , Exh . P, Case No. 15CV21133, Complaint). The case was
transferred to the Municipal Court docket on October 27, 2015. (Id. , Exh. Q). The Court issued
a final order granting CitiMortgage's motion for summary judgment on March 29, 2016, and
plaintiff did not appeal the judgment. (Id. , Exhs. T, Q, U). Finally, on May 30, 2014, before
plaintiff instituted his second and third actions, CitiMortgage filed an action in the Hamilton
County Court of Common Pleas to foreclose on the Property after plaintiff defaulted on a
promissory note for $315,000.000 secured by a mortgage on the Property.8 (Id., Exh. A, Case
No. A 1403220, Doc. 1). On March I 0, 2015, the Common Pleas Court entered a final judgment
and decree of foreclosure. (Id., Exh. E). Plaintiff did not appeal the judgment. (See Id. , Exh. F).
The Property was sold to a third party by foreclosure sale on June 30, 2016. (Id. , Docket entry).
Plaintiff now challenges the decree of foreclosure by seeking a judgment in this Court
that discharges his debt obligation in the foreclosed Property; enjoins defendant from pursuing
any collection activities against him, including foreclosure actions, and from contacting plaintiff
regarding the loan on the Property; enjoins defendant from reporting plaintiffs debt obligation
on the Property to collection agencies; and orders defendant to "return the original wet ink
signature of the promissory note" on the foreclosed Property to plaintiff. (Doc. 1). The source
of plaintiff s injury is the state court judgment of foreclosure and the relief sought contravenes
that judgment, which granted defendant CitiMortgage the right to sell the Property free of any
The Court may examine public documents without converting the motion to dismiss into one for summary
judgment. Wyser-Pratte Mgmt. Co. Inc. v. Telxon Co1 ., 41 3 F.3d 553, 560 (6th Cir. 2005).
interest of plaintiff, terminated plaintiff's rights in the Property, and authorized the sale of the
Property. (Doc. 8, Exh. E). Plaintiff is precluded from pursuing a claim under 15 U.S.C. § 1635
and obtaining the relief he seeks with respect to the Property. Lawrence, 531 F.3d at 368.
Plaintiff's complaint, which requests that the Court declare the debt obligation on the foreclosed
Property to be discharged and issue other relief related to the loan on the Property, identifies
injuries caused by the state court judgment rendered before the district court proceedings
commenced and invites the District Court to review and reject that judgment. See Exxon Mobile
Corp., 544 U.S. at 284. This Court therefore lacks subject matter jurisdiction over plaintiff's
complaint filed in federal court under the Rooker-Feldman doctrine. The complaint should be
dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(l).
3. Dismissal pursuant to the doctrines of res judicata and collateral estoppel
Defendant alleges that assuming, arguendo, plaintiff's complaint is not barred under the
Rooker-Feldman doctrine, plaintiff's claims are nonetheless barred under the doctrines of res
judicata (claim preclusion) and collateral estoppel (issue preclusion). 9
In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual
allegations as true and make reasonable inferences in favor of the non-moving party. Keys v.
Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (citing Harbin-Bey v. Rutter, 420 F.3d 571 , 575
(6th Cir. 2005)). Only "a short and plain statement of the claim showing that the pleader is
entitled to relief' is required. Id. (quoting Fed. R. Civ. P. 8(a)(2)). "[T]he statement need only
give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Id.
(quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks omitted) (quoting
Federal courts in the Sixth Circuit typically refer to "res judicata" as "claim preclusion" and "collateral estoppel"
as "issue preclusion." See Dubuc v. Green Oak Tp., 312 F.3d 736, 745 (6th Cir. 2002) (citing Black' s Law
Dictionary at 256, 1312 (7th ed. 1999)).
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Although the plaintiff need not
plead specific facts, the "[f]actual allegations must be enough to raise a right to relief above the
speculative level" and to "state a claim to relief that is plausible on its face ." Id. (quoting
Twombly, 550 U.S. at 555, 570). It is well-settled that a document filed prose is "to be liberally
construed" and that a pro se complaint, "however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers [.]" Erickson, 551 U.S. at 94
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, the Sixth Circuit has
recognized that the Supreme Court's liberal construction case law has not had the effect of
"abrogat[ing] basic pleading essentials" in prose suits. Wells v. Brown, 891 F.2d 591, 594 (6th
The doctrine of claim preclusion provides that a "final judgment on the merits of an
action precludes the parties or their privies from relitigating issues that were or could have been
raised in that action." Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981 ).
The doctrine of issue preclusion provides that "a deci sion precludes relitigation of the same issue
on a different cause of action between the same parties once a court decides an issue of fact or
law necessary to its judgment." Duncan v. Peck, 752 F.2d 1135, 1138 (6th Cir. 1985). Under
the doctrines of claim and issue preclusion, a federal court must give a state court judgment the
same preclusive effect it would have in the courts of the rendering state. Dubuc, 312 F.3d at 744.
Under Ohio law, " an existing final judgment or decree between the parties to litigation is
conclusive as to all claims which were or might have been litigated in the first lawsuit."
National Amusements, Inc. v. City ofSpringdale, 558 N.E.2d 1178, 1179 (Ohio 1990) (emphasis
in the original) (citation omitted). See also Grava v. Parkman Twp. , 653 N.E.2d 226, 228 (Ohio
1995) ("[ t]he doctrine of res judicata requires a plaintiff to present every ground for relief in the
first action, or be forever barred from asserting it") (citation omitted). See also State v. Dick, 738
N.E.2d 456, 460 (Ohio App. 3d Dist. 2000) C'resjudicata bars a subsequent action based upon
any claim arising out of the transaction or occurrence that was the subject matter of the previous
action, whether or not that particular claim was litigated, so long as there has been a valid, final
judgment rendered upon the merits") (citing Grava, 653 N.E.2d 226, syllabus) (emphasis in the
original). Under Ohio law, a prior judgment has preclusive effect if four elements are satisfied:
( 1) there is a final, valid decision on the merits by a court of competent jurisdiction; (2) the
second action involves the same parties or their privies as the first; (3) the second action raises
claims that were or could have been litigated in the first action; and (4) the second action arises
out of the transaction or occurrence that was the subject matter of the previous action. Felder v.
Community Mut. Ins. Co., No. 96-3320, 1997 WL 160373, at *3-4 (6th Cir. Apr. 4, 1997). Ohio
law defines "transaction" as a "common nucleus of operative facts. " Hapgood v. City of Warren,
127 F.3d 490, 494 (6th Cir. 1997) (quoting Grava, 653 N.E.2d at 229).
As the District Judge found in the Order Denying Plaintiffs Motion for a Temporary
Restraining Order, plaintiff is barred by the prior state court judgments from litigating his TILA
claim in this Court. (Doc. 6 at 3-4). The factual history outlined above shows that plaintiff has
filed multiple lawsuits and a prior TILA claim in state court against CitiMortgage which have
been resolved in CitiMortgage' s favor; a judgment of foreclosure has been issued against
plaintiff; and the Property has been sold to a third party pursuant to that state court judgment.
This action relates to the Property and loan at issue in the state court litigation and involves the
same parties and claims that either were litigated in state court or could have been litigated in
those lawsuits. Plaintiff is therefore precluded under the doctrines of claim preclusion and issue
preclusion from pursuing his claims in federal court. Accordingly, dismissal of the complaint is
warranted pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim to relief.
B. Motion to designate plaintiff as a vexatious litigator
Defendant seeks to have plaintiff declared a vexatious litigator based on his alleged
history of repeatedly filing frivolous claims. (Doc. 8 at 13-14). Defendant argues that plaintiffs
filing of three state court actions, one counterclaim in state court, and the current action - all of
which are related to the same nucleus of facts - together with plaintiffs four bankruptcy filings
warrant this designation and an injunction against future filings related to the Property and the
loan on the property.
Federal law allows the Court to classify a party as a " vexatious litigator" under certain
circumstances. See Filipas v. Lemons, 835 F.2d 1145 (6th Cir. 1987); Smiley v. The View, No.
1: l 4-cv-210, 2014 WL 1046011, at *3 (S.D. Ohio March 14, 2014) (citing Feathers v. Chevron
U.S.A. , 141F.3d264, 269 (6th Cir. 1998) ("[t]he general pattern of litigation in a particular case
may be vexatious enough to warrant an injunction in anticipation of future attempts to relitigate
old claims.") (citation omitted)). Pre-filing restrictions are a "proper method for handling the
complaints of prolific litigators," Filipas, 835 F.2d 1146, and an appropriate "mechanism to stop
the constant flow of meritless and repetitive complaints being filed on the same or similar
matters." Smiley, 2014 WL 1046011 , at *2 (citing Feathers, 141 F.3d at 269).
As authority for its position that the Court should classify plaintiff as a vexatious litigator
and impose pre-filing restrictions against him, defendant relies on two district court decisions:
Lomaz v. Ohio Dept. of Commerce, Div. ofState Fire Marshal, No. 5:03-cv-2609, 2005 WL
1126746 (N.D. Ohio Apr. 20, 2005) and Miller v. Ohio Bd. ofRegents, No. C-2-01-550, 2003
U.S. Dist. LEXIS 28921 , at *2 (S.D. Ohio Aug. 21, 2003). The Court in Miller found that the
plaintiff had a history of filing frivolous suits against the defendant and identified 15 lawsuits the
plaintiff had filed in state and federal court during an approximately five-year period, all of
which had been dismissed on initial screening or a motion to dismiss. Miller, 2003 U.S. Dist.
LEXIS 28921. In addition, the plaintiff had been declared a vexatious litigator under Ohio law.
Id. The Court in Lomaz found that the plaintiff, who had filed at least nine lawsuits in state and
federal court as well as a bankruptcy petition, had " engaged in harassing, threatening and
intimidating tactics; instituted frivolous lawsuits and filings; commenced actions taken solely to
interpose delay; refused to follow court orders; and failed to prosecute civil actions." Lomaz,
2005 WL 1126746, at *9. The Court found that the case before it "represent[ed] an example of
vexatious litigation as it [was] the third attempt by plaintiff to litigate a validly issued subpoena."
Neither Lomaz nor Miller supports a declaration classifying plaintiff as a vexatious
litigator in this case. Unlike the plaintiff in Lomaz, there is no allegation here that plaintiff has
engaged in harassing or threatening conduct. Further, although plaintiff has filed three prior
lawsuits and a counterclaim against Citigroup in state court, this number is well below the
number of actions filed by the plaintiffs in Lomaz and Miller and is not so great that designating
plaintiff as a vexatious litigator is warranted at this time. Should plaintiff continue to file
lawsuits related to the Property which has now been foreclosed on and sold, the imposition of
pre-filing restrictions as a way to stop plaintiff from continuing to file meritless and repetitive
complaints on the same or similar matters may be warranted at a future date. See Smiley, 2014
WL I 046011 , at *2. However, plaintiffs filings to date, considered alone or in conjunction with
his bankruptcy petitions, do not warrant classifying plaintiff as a "vexatious litigator" at this
IT IS THEREFORE ORDERED THAT:
1. The automatic stay provision of 11 U.S.C. § 362(a) does not apply and no stay of this
litigation is in effect pursuant to that provision.
IT IS THEREFORE RECOMMENDED THAT:
I. Defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(l) and 12(b)(6) and to
declare plaintiff a vexatious litigator (Doc. 8) be GRANTED insofar as defendant moves to
dismiss the complaint and be DENIED with respect to defendant' s request to declare plaintiff a
2. Plaintiffs claims be DISMISSED and this case be closed on the docket of the Court.
Karen L. LitkOVitz
United States Magistrate Judge
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Case No. 1: 16-cv-707
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum oflaw in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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