Brown et al v. Florida Coastal Partners, LLC et al

Filing 46

ORDER granting in part and denying in part 37 Defendant Carlisle's Motion to Dismiss and denying 40 Plaintiffs' Motion for Rule 11 Violation and Injunction. Signed by Magistrate Judge Terence P Kemp on 10/10/14. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Ronald Brown, et al.,

:

Plaintiffs,

:

v.

:

Florida Coastal Partners, LLC,

Case No. 2:13-cv-1225

:
:

Magistrate Judge Kemp

Defendants.

OPINION AND ORDER
This case (in which the parties have consented to full
disposition by the Magistrate Judge) is before the Court on two
motions.

They are: (1) a motion to dismiss filed by defendant

Carlisle, McNellie, Rinin, Kramer & Ulrich, Co., LPA
(“Carlisle”)(Doc. 37); and (2) a motion for “Rule 11 Violation
and Injunction of State Foreclosure Case 08 CVE 12 1598" filed by
plaintiffs Ronald Brown and Tonya Brown (collectively “the
Browns”), who are proceeding pro se

(Doc. 40).

For the reasons

set forth below, the motion to dismiss will be granted in part
and denied in part, and the motion for Rule 11 violation and
injunction will be denied.
I.

Background

The Browns are property owners who are parties to a
foreclosure action filed in the Delaware County Court of Common
Pleas as Case No. 08-CVE-12-1598.

A discussion of the procedural

history of that foreclosure action is necessary to resolve the
pending motions in this case.
CitiGroup Global Markets Realty Corp. (“CitiGroup”) filed
the foreclosure case against the Browns in December, 2008.

On

September 8, 2010, CitiGroup filed a motion to substitute Kondaur
Capital Corporation (“Kondaur”) as the plaintiff.

CitiGroup

attached an assignment of mortgage to the motion reflecting that
CitiGroup had assigned the mortgage and note to Kondaur.

Before

the Court of Common Pleas ruled on the motion to substitute, it
became aware that Mr. Brown had filed a petition in United States
Bankruptcy Court.

Consequently, pursuant to 11 U.S.C. §362, the

Court of Common Pleas stayed the case on October 11, 2010.

The

Court of Common Pleas lifted the stay and returned the case to
its active docket on July 5, 2011.

Thereafter, on October 24,

2011, the Court of Common Pleas granted the motion to substitute.
In doing so, the Court of Common Pleas noted that after the
action was filed, “Plaintiff CitiGroup ... assigned the subject
mortgage together with the note to Kondaur ....”

Carlisle acted

as counsel to both CitiGroup and Kondaur.
Kondaur and Florida Coastal Partners, LLC (“Florida
Coastal”) subsequently filed a joint motion to substitute party
plaintiff and counsel.

That motion, filed on August 20, 2013,

reflected that the note and mortgage were transferred by Kondaur
to Florida Coastal by assignment of mortgage dated December 11,
2011.

The motion also sought to replace Carlisle and substitute

Charles R. Griffith as the attorney for Florida Coastal.

The

Court of Common Pleas granted the joint motion to substitute
party plaintiff and counsel on September 25, 2013.
On December 13, 2013, while the foreclosure action was still
pending in the Court of Common Pleas, the Browns brought this
action pursuant to this Court’s federal question jurisdiction,
alleging that Florida Coastal and John Doe, Individuals 1-50
violated the Fair Debt Collection Practices Act, 15 U.S.C. §§1692
et seq.

The Browns also alleged fraud in connection with the

mortgage on their property and sought to quiet the title to the
property.

On January 3, 2014, the Browns filed an amended

complaint adding Mr. Griffith as a defendant and adding, among
other allegations, a claim for slander of title.
2

Finally, on May

23, 2014, with leave of Court, the Browns filed a “3rd amended
complaint” against Florida Coastal, Mr. Griffith, Carlisle, and
John Doe, Individuals 1-50.

Count one of the 3rd amended

complaint alleges that the defendants violated the FDCPA.

More

specifically, the Browns allege that Carlisle falsely represented
in the Common Pleas Court action that its clients were proper
party plaintiffs (specifically, holders of the loan) when, in
fact, they were debt collectors.

The Browns allege that

Carlisle’s false and misleading representations resulted in
judgments and sanctions against them in the foreclosure action.
Similarly, the Browns allege that Mr. Griffith falsely
represented that Florida Coastal was a proper party plaintiff in
that case when, in fact, it was also a debt collector.

The

Browns further allege that Florida Coastal and Mr. Griffith
misrepresented the character, amount, and legal status of the
mortgage and note in violation of the FDCPA.

The Browns also set

forth state law claims for foreclosure fraud (count two), slander
of title (count three), slander of credit (count four), emotional
distress (count five), and quiet title (count six).
One day after they filed the complaint in this case, the
Browns removed the state court foreclosure action from the
Delaware County Court of Common Pleas.
cv-1232.

It became Case No. 2:13-

On September 24, 2014, Judge Economus of this Court

issued an Opinion and Order adopting a Report and Recommendation
which determined that the Court lacked subject matter
jurisdiction over the dispute, and he remanded the case to the
Delaware County Court of Common Pleas.
reconsider that order.

The Browns have moved to

To date, it does not appear that a final

judgment has been entered in the foreclosure action.
II. Discussion
The Court will first address Carlisle’s motion to dismiss.
After doing so, the Court will address the Browns’ motion for
3

rule 11 violation and injunction.
A. Carlisle’s Motion to Dismiss
A 12(b)(6) motion to dismiss is directed solely to the
complaint and any exhibits attached to it.

Roth Steel Products

v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983).

The

merits of the claims set forth in the complaint are not at issue
in a motion to dismiss for failure to state a claim.
Consequently, a complaint will be dismissed pursuant to Fed. R.
Civ. P. 12(b)(6) only if there is no law to support the claims
made, or if the facts alleged are insufficient to state a claim,
or if on the face of the complaint there is an insurmountable bar
to relief.

See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697,

702 (6th Cir. 1978).
When analyzing a claim under a 12(b)(6) motion to dismiss, a
court must take all well-pleaded factual allegations as true and
construe those allegations most favorably toward the non-movant.
Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009).

Federal

Rule of Civil Procedure 8(a) admonishes a court to look only for
a “short and plain statement of the claim showing that the
pleader is entitled to relief,” rather than requiring the
pleading of specific facts.
(2007).
8(a).

Erickson v. Pardus, 551 U.S. 89, 93

Rule 12(b)(6) must be read in conjunction with Rule

The moving party is entitled to relief only when the

complaint fails to meet this liberal standard.

5A Wright &

Miller, Federal Practice and Procedure §1356 (1990).
On the other hand, more than bare assertions of legal
conclusions are required to satisfy the notice pleading standard.
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th
Cir. 1988).

“In practice, a complaint must contain either direct

or inferential allegations respecting all the material elements
to sustain a recovery under some viable legal theory.”
(emphasis in original, quotes omitted).
4

Id.

When a court considers a 12(b)(6) motion to dismiss, it “may
begin by identifying allegations that, because they are mere
conclusions, are not entitled to the assumption of truth.”
Ashcroft v. Iqbal, 556 U.S. 662, 665 (2009).

However, “[w]hen

there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give
rise to an entitlement to relief.”

Id.

To survive a motion to

dismiss, a plaintiff’s claim “requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action” will not suffice.

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007).

A complaint must be dismissed

if it does not plead “enough facts to state a claim to relief
that is plausible on its face.”

Id. at 570.

Finally, pro se

complaints are held to “less stringent standards than formal
pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519,
520 (1972), “and should therefore be liberally construed.”
Williams v. Curtain, 631 F.3d 380, 383 (6th Cir. 2011).
In its motion to dismiss, Carlisle argues that the Browns’
wrongful/fraudulent disclosure claim, FDCPA claim, fraud claim,
slander of title claim, and slander of credit claim should be
dismissed because the facts relevant to those claims have been
“conclusively decided” against the Browns in the state
foreclosure action.

More specifically, Carlisle argues that, in

the foreclosure action, the state court conclusively determined
that:
•

Carlisle brought the foreclosure action in the name
of a proper plaintiff, which held the note and the
mortgage and had standing to bring the complaint;

•

the mortgage assignments were proper;

•

Carlisle filed proper motions to substitute
plaintiff as the mortgage became assigned;

•

conditions

of

the

mortgage
5

were

broken

by

the

Browns by reason of default in payment;
•

the amount due under the note and mortgage as set
forth in the foreclosure complaint was correct;

•

there were no misrepresentations of material fact
involved in prosecuting the foreclosure action;

•

there were no misrepresentations made to the Browns
either orally or in writing; and

•

Carlisle did
affidavits.

See Doc. 37.

not

file

any

false

or misleading

Carlisle makes a limited number of additional

arguments in its motion to dismiss, arguing that:
•
•

the Browns do not allege any facts in support of
their fraud claim and their intentional infliction
of emotional distress claim;

•

the slander of title claim fails because the Browns
lack standing to challenge the validity of the
mortgage assignments because they are not parties
to those assignments;

•

Id.

a claim for wrongful/fraudulent foreclosure is not
a cause of action in Ohio;

the Browns do not plead that Carlisle is asserting
any right to the property as required to state a
quiet title claim.

For these reasons, Carlisle urges the Court to grant its

motion to dismiss.
In opposition, the Browns argue that Carlisle did not
represent a proper party or have the required documents to file a
foreclosure proceeding against them in state court.

The Browns

allege that Carlisle’s clients were servicers of the loan or debt
collectors and, consequently, Carlisle misrepresented that its
clients were able to pursue the foreclosure proceeding against
them in state court.

The Browns also allege that Carlisle’s

misrepresentations have caused them to suffer emotional distress.
6

Finally, the Browns assert that no “final decision” has been
entered in the state court foreclosure case.

See Doc. 38.

In its reply brief, Carlisle argues that the Browns are
attempting to attack collaterally the state court’s decision to
award a foreclosure judgment against them.

Carlisle acknowledges

that the foreclosure judgment did not resolve the Browns’
counterclaims, but it maintains that “the issues of fact alleged
by Plaintiffs in their complaint have already been adjudicated to
Plaintiffs’ detriment in the State Foreclosure Action.”

In

summary, Carlisle argues that “the allegations plead by Plaintiff
when considered along with Plaintiffs [sic] own exhibits and the
res judicata determinations made by the Delaware County Ohio
Common Pleas Court demonstrate that Plaintiffs’ claims have no
facial plausibility that Defendant is liable for he [sic]
misconduct alleged.”

See Doc. 39.
1. Res Judicata

The Court first examines Carlisle’s argument that the
Browns’ claims for wrongful/fraudulent disclosure, FDCPA
violation, fraud, slander of title, and slander of credit are
barred by the doctrine of res judicata because they have been
“conclusively decided” in the state foreclosure action.

When a

plaintiff attempts to litigate, in a new civil action, claims
which have once been dismissed by a court of competent
jurisdiction, res judicata principles apply.

Two separate

doctrines are encompassed in the concept of res judicata.

The

doctrine of claim preclusion prevents a litigant from raising a
new claim in a subsequent action if it arises out of the same
facts as a prior case and the claim could have been, but was not,
raised in that prior case.

The doctrine of issue preclusion,

sometimes referred to as collateral estoppel, applies when the
party attempts to litigate again claims which were actually
decided against the party in a prior case.
7

Because Carlisle

argues that the Browns are raising claims here which were decided
against them in the Court of Common Pleas case, the Court will
examine the issue preclusion prong of the res judicata doctrine.
For issue preclusion to apply, the party claiming preclusion
must demonstrate:
(1) the precise issue raised in the present case must
have been raised and actually litigated in the prior
proceeding; (2) determination of the issue must have been
necessary to the outcome of the prior proceeding; (3) the
prior proceeding must have resulted in a final judgment
on the merits; and (4) the party against whom estoppel is
sought must have had a full and fair opportunity to
litigate the issue in the prior proceeding.
Kosinski v. Commissioner of Internal Revenue, 541 F.3d 671, 675
(6th Cir. 2008), quoting United States v. Cinemark USA, Inc., 348
F.3d 569, 583 (6th Cir. 2003).

Here, the Browns contend that the

state court proceeding did not result in a final judgment on the
merits.

This Court agrees.

As noted above, the state court case

was removed to this Court, only to later be remanded for lack of
subject matter jurisdiction.

Consequently, the case is presently

pending in the Delaware County Court of Common Pleas.

Because

“[o]nly final judgments . . . possess issue-preclusive power,
Kosinski, 541 F.3d at 676, Carlisle is incorrect when it asserts
that the issues raised by the Browns have been conclusively
decided in the state court case.

To the extent that Carlisle’s

motion to dismiss is based on principles of res judicata, it will
be denied.
2. Fraud
In its motion to dismiss, Carlisle argues that a claim for
wrongful/fraudulent foreclosure is not recognized in Ohio.
Carlisle appears to be referring to the second cause of action in
the 3rd amended complaint, which the Browns refer to as
“foreclosure fraud.”

In that cause of action, the Browns allege

that the clients which Carlisle represented in the state court
8

foreclosure action were, contrary to Carlisle’s statements to
that court, “debt collectors and not owners of the mortgage and
note.”

Doc. 32, ¶45.

The Browns also allege that Carlisle

fraudulently executed a back-dated assignment of
Plaintiffs [sic] mortgage and note in November, 2008 to
make it appear that the assignment was executed by its
client . . . at a time when the Plaintiffs [sic] mortgage
was not in default and to conceal that its client was a
debt collector and not owner of the plaintiffs’ mortgage
and note.... Upon recordation [sic] of this back-dated
assignment, on December 1, 2008, [Carlisle] filed for
foreclosure against the Plaintiffs on behalf of its
client the next day December 2, 2008. As a result, the
filing of the foreclosure action by Defendant [Carlisle]
against the Plaintiffs in December, 2008 constitutes
foreclosure fraud.
Doc. 32, ¶46.

The Browns allege that, as a result of the

fraudulent assignment of the mortgage, “there is not a clear
chain of title leading to ownership of Plaintiffs’ mortgage and
note by the Defendant Florida Coastal.”

On this basis, the

Browns allege that the foreclosure action initiated by Carlisle
and continued by Griffith Law on behalf of its client Florida
Coastal constitutes fraud.
Even assuming that Carlisle is correct in arguing that
wrongful foreclosure is not an independent cause of action under
Ohio law, if the complaint is construed liberally, it appears
that the Browns are asserting a claim of fraud rather than
“wrongful foreclosure.”

The Browns’ fraud claim is based upon

two specific allegations – that Carlisle fraudulently back-dated
an assignment of the mortgage and note, and that it fraudulently
brought the foreclosure action on behalf of debt collectors.
“In alleging fraud ..., a party must state with
particularity, the circumstances constituting fraud....” Fed. R.
Civ. P. 9(b).

To satisfy this requirement, a plaintiff generally

must describe the time, place, and content of the purported fraud
and identity of the parties who participated in it.
9

See Sky

Techn. Partners, LLC v. Midwest Research Inst., 125 F. Supp. 2d
286, 299 (S.D. Ohio 2000).

According to Carlisle, the Browns

failed to plead any facts in support of their fraud claim, and
they maintain an “erroneous belief that a foreclosure plaintiff
needs to be the owner of the subject note and mortgage to be a
proper party plaintiff.”

Carlisle further argues that because

Ohio law allows a foreclosure action to be brought by the holder
of the note or mortgage, the Browns’ fraud claim must be
dismissed.
As noted above, however, the Browns complaint includes
specific allegations about the time, place, manner, and content
of the false statements they claim were made by Carlisle.

Those

allegations are sufficient to satisfy Rule 9(b)’s requirements.
Further, although Carlisle correctly states that, under Ohio law,
“the current holder of the note and mortgage is entitled to bring
a foreclosure action against a defaulting mortgagor even if the
current holder is not the owner of the note and mortgage,” Wood
v. Lerner Sampson & Rothfuss, 2014 WL 4249785, at *7 (N.D. Ohio
Aug. 27, 2014), quoting ABN AMRO Mortg. Grp., Inc. v. Evans, 2013
WL 1696728, at *5 (Ohio Ct. App. Apr. 18, 2013), the Browns
neither allege nor concede that Carlisle’s clients were holders
of the note and mortgage when they filed or continued the state
foreclosure case. Perhaps Carlisle can establish that its
clients had an interest in the mortgage or the note sufficient to
pursue the foreclosure action in the Delaware County Court of
Common Pleas, but the facts which would support that finding are
not properly before the Court in the context of a Rule 12(b)(6)
motion, which is an attack on the sufficiency of the complaint.
Further, for the reasons set forth above, this Court cannot, as
Carlisle urges, rely on the state court’s determination that the
Carlisle brought the lawsuit on behalf of proper parties.

For

these reasons, Carlisle’s motion to dismiss the Browns’ fraud
claim will be denied.
10

3. Infliction of Emotional Distress
Under Ohio law, there are two torts based on emotional
distress: intentional infliction of emotional distress and
negligent infliction of emotional distress.

Dicks v. Capital

Cities/ABC, Inc., 933 F. Supp. 694, 696-67 (S.D. Ohio 1996).

The

Browns’ complaint alleges “emotional distress,” but it does not
identify the particular tort they rely on in seeking relief.

In

its motion to dismiss, Carlisle construes the Browns’ “emotional
distress” claim as an intentional infliction of emotional
distress claim.

In their opposition to Carlisle’s motion, the

Browns do not oppose this construction.

Consequently, the Court

will also construe the Browns’ “emotional distress” claim as
attempting to plead a claim for the intentional infliction of
emotional distress.
In order to state a claim for intentional infliction of
distress under Ohio law, the plaintiff must plead that:
(1) the defendant intended to cause emotional distress or
knew or should have known that its conduct would result
in serious emotional distress to the plaintiff; (2)
defendant’s conduct was extreme and beyond all possible
bounds of decency and was such that it can be considered
as utterly intolerable in a civilized community; (3)
defendant’s conduct was the proximate cause of
plaintiff’s psychic injury; and (4) plaintiff’s emotional
distress was serious and of such a nature that no
reasonable person could be expected to endure it.
Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1110
(6th Cir. 2008).

In the 3rd amended complaint, the Browns state

only that “[t]he Defendants [sic] ongoing and continuous unfair,
misleading and deceptive practices debt collection practices
[sic] have cause [sic] plaintiffs’ emotional distress.”
¶53.

Doc. 32,

These conclusory allegations are plainly insufficient.
The Browns attempt elaborate on their “emotional distress

claim” in their opposition to the motion to dismiss, arguing that
they:
11

have endured nearly 7 years of emotional distress at the
hands of Carlisle who in September, 2013 continued to
make misrepresentations in State Court that the proper
party was before the Court. The Plaintiffs live with the
emotional distress on a daily basis knowing that an
adverse final judgment could occur against them at any
time as a result of the Carlisle’s [sic] false or
misleading statements or representations, engagement in
unfair practices, and furnishing certain deceptive forms
in relation to the foreclosure action they brought
against the Plaintiffs and ongoing since December, 2008.
See Doc. 38, at 5. But even if the 3rd amended complaint can be
construed to include these additional allegations, the Browns do
not allege that Carlisle’s conduct was extreme and beyond all
possible bounds of decency such that it can be considered as
utterly intolerable in a civilized community, nor have they
pleaded or identified facts that would plausibly support that
conclusion.

Although the Browns undoubtedly were concerned that

they would suffer an adverse final judgment, such concerns alone
cannot form the basis of an intentional infliction of emotional
distress claim.

See, e.g., Akar v. Federal Nat. Mortg. Ass’n,

843 F. Supp. 2d 154, 170 n.11 (D. Mass 2012) (noting that an
intent to foreclose on property at a time when the bank had not
yet become the holder of the subject mortgage is not conduct that
was “beyond all bounds of decency and ... utterly intolerable in
a civilized community”).

The Browns likewise do not allege that

their emotional distress was serious and of such a nature that no
reasonable person could be expected to endure it.

As a result,

the 3rd amended complaint fails to state a claim for intentional
infliction of emotional distress which is plausible on its face.
Accordingly, Carlisle’s motion to dismiss the Browns’ intentional
infliction of emotional distress claim will be granted.
4. Slander of Title
Carlisle next argues that the Browns’ slander of title claim
must be dismissed because the Browns lack standing to challenge
12

the validity of the mortgage assignments because they are not
parties to those assignments.

A recent decision from the Court

of Appeals, which Carlisle did not have the benefit of when it
filed its brief, forecloses this argument.
In Slorp v. Lerner, Sampson & Rothfuss, __ F.3d __, 2014 WL
4800100, at *4 (6th Cir. Sept. 29, 2014), the Court of Appeals
clarified the circumstances under which a mortgagor can challenge
the validity of an assignment which purports to assign the
mortgagee’s interest in the mortgage to another entity.

The

Court noted that some confusion in this area might have been
introduced into the case law by the unpublished decision in
Livonia Properties Holdings, LLC v. 12840-12976 Farmington Road
Holdings, LLC, 399 Fed. Appx. 97, 102 (6th Cir. 2010), where the
Court of Appeals stated that a homeowner did not have standing to
challenge the validity of a home-loan assignment in an action
contesting the foreclosure.

In Slorp, consistent with cases

subsequent to Livonia Properties, the Court of Appeals limited
the scope of that rule, clarifying “that a non-party homeowner
may challenge the validity of an assignment to establish the
assignee’s lack of title, among other defects.”

Slorp, supra.

Stated differently, the Court of Appeals determined that “a nonparty homeowner may challenge a putative assignment’s validity on
the basis that it was not effective to pass legal title to
putative assignee.”

Id.

The Court of Appeals noted that there was no dispute in
Livonia Properties that the assignor had assigned the title to
the assignee.

Instead, the issue in that case was whether the

homeowner had standing to argue that “the assignment was not
properly recorded and suffered from technical defects that
prevented the assignee from establishing record chain of title”
under the relevant law.

In contrast, the issue in Slorp was

whether the homeowner could challenge the assignment based on his
13

allegations that the assignment was fraudulent and the assignee
thus did not hold the title at the time of the foreclosure.
Consequently, the challenge in Livonia Properties was based upon
a technical defect in an otherwise valid assignment, whereas the
challenge in Slorp was based upon the validity of the assignment.
This distinction led the Court of Appeals to find that the
homeowner lacked standing in Livonia Properties, but the
homeowner indeed had standing in Slorp.
In this case, the Browns are challenging the validity of the
assignments and are not arguing that there are technical defects
in otherwise valid assignments.

Accordingly, the Browns have

standing to challenge the validity of the assignments.

For this

reason, the Court finds Carlisle’s argument that the Browns lack
standing to be without merit.
5. Quiet Title
Finally, Carlisle argues that the Browns fail to plead the
requisite facts to support a quiet title claim against Carlisle.
Ohio Revised Code §5303.01 allows an action to be brought by a
person in possession of real property “against any person who
claims an interest therein adverse to him, for the purpose of
determining such adverse interest.” Carlisle argues that because
it is not asserting any right to the property, the Browns’ claim
must be dismissed.

This Court agrees.

The 3rd amended complaint

alleges that Carlisle brought and pursued the foreclosure action
on behalf of its clients, but it does not allege that Carlisle
itself claimed an interest in the property.

On this basis,

Carlisle’s motion to dismiss the Browns’ quiet title claim will
be granted.
B. The Browns’ Motion for Rule 11 Violation and Injunction
The Court now turns to the Browns’ motion for Rule 11
violation and injunction of state foreclosure case 08-CVE-121598.

(Doc. 40).

In this motion, the Browns assert that the
14

following statement, made by Carlisle in its motion to dismiss,
is sanctionable under Fed. R. Civ. P. 11:
The State Court Foreclosure action filed by Carlisle
against Brown was brought by the proper party plaintiff
and was not fraudulent.
(Doc. 40 at 2).

According to the Browns, Carlisle continually

misrepresented to the state court that “its client Citi was a
holder of the Plaintiffs [sic] note and proper party.”
(internal quotations omitted).

Id. at 4

The Browns argue that “[t]he

foreclosure complaint and subsequent pleadings filed by Carlisle
in State Court, and their Motion to Dismiss and subsequent
pleadings in this Court, were intentionally and deliberately
filed to mislead, misrepresent and deceive State Court, this
Court and the Plaintiffs regarding Carlisle’s client Citi [sic]
standing to foreclose against the Plaintiffs.”

Id.

The Browns

further allege that they “just became aware in December, 2013 of
the applicability of specific aspects [sic] FDCPA in regards to
the State foreclosure complaint pending against them and
therefore equitable tolling should apply.”

Id.

Finally, the

Browns “respectfully request that this Court find in favor of
their Motion for Federal Rule 11 violation against Carlisle and
grant an Injunction against the foreclosure action....”

Id.

Carlisle opposes the Browns’ motion and argues that the
statement at issue (that “the State Court Foreclosure Action ...
against the Browns was brought by the proper party Plaintiff and
was not fraudulent”) “has already been determined by the State
Court not to be a Rule 11 violation, the adjudication of which
now precludes the Browns from raising that related claimed Rule
11 violation in this Court.”

(Doc. 41 at 4).

Here, the Browns have neither alleged nor shown that they
have complied with the “safe harbor” provisions of Fed. R. Civ.
P. 11(c)(2) by serving their request for sanctions on Carlisle 21

15

days before presenting it to the Court.

Consequently, the Court

cannot award sanctions on the basis of the present motion.

See

Ridder v. Springfield, 109 F.3d 288, 297 (6th Cir. 1997).

In

addition, the Browns do not provide any legal basis for the
issuance of an injunction staying the foreclosure case.

The

federal Anti-Injunction Act, 28 U.S.C. §2283, states that “[a]
court of the United States may not grant an injunction to stay
proceedings in a State court except as expressly authorized by
Act of Congress, or where necessary in aid of its jurisdiction,
or to protect or effectuate its judgments.”
appear to authorize such injunctions.

The FDCPA does not

See, e.g., Piper v.

Portnoff Law Associates, 262 F.Supp.2d 520, 529 (E.D. Pa.
2003)(“the FDCPA does not expressly authorize enjoining state
court proceedings”).

Nor is an injunction against the

continuation of the foreclosure case necessary in order for this
Court to exercise jurisdiction over the FDCPA claims or to
effectuate its judgments, since none have yet been rendered.
Accordingly, the Browns’ motion for Rule 11 violation and
injunction will be denied.

(Doc. 40).

IV. Conclusion
For the reasons set forth above, Carlisle’s motion to
dismiss (Doc. 37) is granted in part and denied in part.

The

Browns’ claims against Carlisle for the intentional infliction of
emotional distress and to quiet title are dismissed.
remainder of the motion to dismiss is denied.

The

Further, the

Browns’ motion for Rule 11 violation and injunction (Doc. 40) is
denied.
/s/ Terence P. Kemp
United States Magistrate Judge

16