Pace v. Deutsche Bank National Trust Company et al

Filing 21

ORDER granting 7 & 20 Defendants' Motions to Dismiss Plaintiff's Complaint. Signed by Judge George C. Smith on 9/10/2018. (er)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

GABRIEL PACE,
Plaintiff,
Case No. 2:18-cv-195
JUDGE SMITH
Magistrate Judge Jolson

v.
DEUTSCHE BANK NATIONAL TRUST
AS TRUSTEE FOR FIRST FRANKLIN
MORTGAGE LOAN TRUST 2006-FFI6,
ASSET-BACKED CERTIFICATES,
SERIES 2006-FF16, et al.,
Defendants.

OPINION AND ORDER
Presently pending before the Court is Defendants Deutsche Bank National Trust
Company; Bank of America, N.A.; and Specialized Loan Servicing’s Motions to Dismiss
Plaintiff Gabriel Pace’s Complaint. (Docs. 7 and 20). Plaintiff did not respond to either motion
and no replies in support were filed. The time for any such filings has lapsed and this matter is
now ripe for disposition. For the reasons that follow, Defendants’ Motions to Dismiss are
GRANTED.
I. BACKGROUND
On September 26, 2006, Gabriel Pace (“Plaintiff” or “Pace”) executed two notes and two
mortgages. First, Plaintiff effected a Note promising to the Note Holder the principal amount of
the loan—$472,000—plus interest. (Doc. 7-2, Compl. in Foreclosure). Plaintiff then secured a
mortgage which granted to Mortgage Electronic Registration Systems, Inc. (“MERS”), its

successors and assigns, a security interest in 7541 Milford Ave., Westerville, OH 43082
(“Property”). (Id.). Plaintiff then executed the second note and mortgage on the Property,
originally in the amount of $118,000. (Doc. 7-4, Title Ins. Commit.). On March 22, 2007,
MERS assigned the first mortgage to Deutsche Bank National Trust Company (“Deutsche
Bank”). (Doc. 7-3, Assign. of Mort.).
Plaintiff defaulted on both mortgages. On April 2, 2007, Deutsche Bank brought a
foreclosure action against Plaintiff in the Delaware County, Ohio Court of Common Pleas.
(Doc. 7-2). On May 3, 2007, Deutsche Bank moved for summary judgment, which was granted
on July 31, 2007. (Doc. 7-5, State S.J. Ord.). The court issued a Judgment entry and Decree of
Foreclosure on July 31, 2007. (Id.). Plaintiff elected not to appeal the state court’s valid final
judgment. (See Doc. 7-6, State Docket).
On March 6, 2018, Plaintiff filed suit in this Court asserting 20 claims against Deutsche
Bank, Bank of America, N.A. (“BANA”), and Specialized Loan Servicing (“SLS”) (collectively
“Defendants”). Plaintiff’s Complaint alleges that Defendants’ conduct before and after the
foreclosure proceedings was contrary to law. (See generally Doc. 1, Compl.). Defendants now
submit that Plaintiff’s claims are barred under: 1) the Rooker-Feldman doctrine; 2) the doctrine
of res judicata; and 3) Rule 12(b)(6). (See generally Docs. 7-1 and 20-1).
II. STANDARDS OF REVIEW
A.

Rule 12(b)(1)
Defendants 1 bring their motions pursuant to Rule 12(b)(1) of the Federal Rules of Civil

Procedure, alleging that this Court lacks subject matter jurisdiction over Plaintiff’s claims,
asserting that the Court is barred from hearing the claims pursuant to the Rooker-Feldman doctrine.

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Defendants Deutsche Bank and BANA mistakenly characterize their motion to dismiss for lack of subject matter
jurisdiction pursuant to Rooker-Feldman under Rule 12(b)(6). (See Doc. 7, Mot. at 2). A motion to dismiss for lack

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Rule 12(b)(1) provides for dismissal when the court lacks subject matter jurisdiction.
Without subject matter jurisdiction, a federal court lacks authority to hear a case. Thornton v. Sw.
Detroit Hosp., 895 F.2d 1131, 1133 (6th Cir. 1990). Motions to dismiss for lack of subject matter
jurisdiction fall into two general categories: facial attacks and factual attacks. United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial attack under Rule 12(b)(1) “questions merely
the sufficiency of the pleading,” and the trial court therefore takes the allegations of the complaint
as true. Wayside Church v. Van Buren Cty., 847 F.3d 812, 816 (6th Cir. 2017). To survive a facial
attack, the complaint must contain a short and plain statement of the grounds for jurisdiction. Rote
v. Zel Custom Mfg. LLC, 816 F.3d 383, 387 (6th Cir. 2016).
A factual attack is a challenge to the factual existence of subject matter jurisdiction. No
presumptive truthfulness applies to the factual allegation. Glob. Tech., Inc. v. Yubei (XinXiang)
Power Steering Sys. Co., 807 F.3d 806, 810 (6th Cir. 2015). When examining a factual attack
under Rule 12(b)(1), “the court can actually weigh evidence to confirm the existence of the factual
predicates for subject-matter jurisdiction.” Glob. Tech., Inc. v. Yubei (XinXiang) Power Steering
Sys. Co., 807 F.3d 806, 810 (6th Cir. 2015) (quoting Carrier Corp. v. Outokumpu Oyj, 673 F.3d
430, 440 (6th Cir. 2012)). The plaintiff has the burden of establishing jurisdiction in order to
survive the motion to dismiss. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004); Moir v.
Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990).
B.

Rule 12(c)
Defendants also bring their motions to dismiss pursuant to Rule 12(c) of the Federal Rules

of Civil Procedure, alleging that Plaintiff’s claims are precluded under the doctrine of res judicata.

of subject matter jurisdiction is most appropriately brought pursuant to Rule 12(b)(1). See Tropf v. Fid. Nat’l Title
Ins. Co., 289 F.2d 929, 936–37 (6th Cir. 2002) (interpreting Rooker-Feldman to be a limitation on a court’s
jurisdiction).

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Rule 12(c) provides that “[a]fter the pleadings are closed—but early enough not to delay
trial—a party may move for judgment on the pleadings.” The standard of review for a motion for
judgment on the pleadings is the same as that used to address a motion to dismiss under Rule
12(b)(6). Id.; Lindsay v. Yates, 498 F.3d 434, 438 (6th Cir. 2007).
Rule 12(b)(6) permits dismissal of a lawsuit for “failure to state claim upon which relief
can be granted.” To meet this standard, a party must allege sufficient facts to state a claim that is
“plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A pleading will
satisfy this plausibility standard if it contains “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). In considering whether a complaint fails to state a claim upon which
relief can be granted, the Court must “construe the complaint in the light most favorable to the
plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.”
Ohio Police & Fire Pension Fund v. Standard & Poor’s Fin. Servs. LLC, 700 F.3d 829, 835 (6th
Cir. 2012) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However, “the
tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals
of a cause of action’s elements supported by mere conclusory statements.” Iqbal, 556 U.S. at 663.
Thus, while a court is to afford plaintiff every inference, the pleading must still contain facts
sufficient to “provide a plausible basis for the claims in the complaint;” a recitation of facts
intimating the “mere possibility of misconduct” will not suffice. Flex Homes, Inc. v. Ritz-Craft
Corp of Mich., Inc., 491 F. App’x 628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at 679.
In sum, “[f]or purposes of a motion for judgment on the pleadings, all well-pleaded
material allegations of the pleadings of the opposing party must be taken as true, and the motion
may be granted only if the moving party is nevertheless clearly entitled to judgment.” JPMorgan

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Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (quoting S. Ohio Bank v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973)).
III. DISCUSSION
Defendants are now before the Court moving to dismiss Plaintiff’s Claims on the bases of:
1) Rooker-Feldman, 2) res judicata, and 3) Plaintiff’s failure to state a claim upon which relief can
be granted. The Court will address these arguments in turn.
A.

Rooker-Feldman
The first issue before the Court is whether this Court has subject matter jurisdiction over

Plaintiff’s claims. Rooker-Feldman limits a district court’s jurisdiction over cases and
controversies. See Tropf, 289 F.2d at 936–37. A motion to dismiss for lack of subject matter
jurisdiction pursuant to Rooker-Feldman is a facial attack of a court’s subject matter jurisdiction.
King v. CitiMortgage, Inc., No. 2:10-CV-01044, 2011 WL 2970915, at *5 (S.D. Ohio July 20,
2011) (Graham, J.).
The Rooker-Feldman doctrine originates from two Supreme Court decisions: Rooker v.
Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983). In each case, the Court found that the lower federal courts lacked subject
matter jurisdiction over the controversies because, pursuant to 28 U.S.C. § 1257, the Supreme
Court alone has appellate jurisdiction over state court decisions. See Rooker, 263 U.S. at 414–
15; Feldman, 460 U.S. at 478–79.
The Supreme Court revisited the Rooker-Feldman doctrine in Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280 (2005). In Exxon, the Supreme Court stated that the
Rooker-Feldman doctrine “is confined to cases . . . brought by state-court losers complaining of
injuries caused by state-court judgments rendered before the district court proceedings

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commenced and inviting district court review and rejection of those judgments.” Exxon Mobil,
544 U.S. at 284.
After Exxon, the Sixth Circuit has narrowly construed Rooker-Feldman. See Coles v.
Granville, 448 F.3d 853, 857 (6th Cir. 2006). To determine the applicability of the RookerFeldman doctrine, the Sixth Circuit has adopted the “source of the injury” test. See McCormick
v. Braverman, 451 F.3d 382, 393 (6th Cir. 2007). The district court must determine whether the
“source of the injury is the state court decision,” if so, “then the Rooker-Feldman doctrine would
prevent the district court from asserting jurisdiction.” Id. The Sixth Circuit has emphasized that
“the pertinent inquiry after Exxon is whether the ‘source of the injury’ upon which plaintiff bases
his federal claim is the state court judgment, not simply whether the injury complained of is
‘inextricably intertwined’ with the state-court judgment.” Kovacic v. Cuyahoga Cty. Dep’t of
Children & Family Servs., 606 F.3d 301, 309 (6th Cir. 2010) (quoting McCormick, 451 F.3d at
393–395). Thus, “if the plaintiff has a claim that is in any way independent of the state-court
judgment, the Rooker-Feldman doctrine will not bar a federal court from exercising jurisdiction.”
Abbott v. Michigan, 474 F.3d 324, 330 (6th Cir. 2007) (footnote omitted).
Therefore, this Court must make the determination as to whether Plaintiff seeks relief
from the state court judgment itself or if there is any independent source from which he is
seeking relief. The Sixth Circuit has found that claims based on the conduct which gave rise to
the state court proceedings originate out of an independent source from the state court judgment.
See Kovacic, 606 F.3d at 310; Pittman v. Cuyahoga Cty. Dep’t of Children & Family Servs., 241
F. App’x 285, 289 (6th Cir. 2007); Brown v. First Nationwide Mortg. Corp., 206 F. App’x 436,
439 (6th Cir. 2006).

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1.

Counts One through Seventeen, Nineteen, and Twenty

Pace is before this Court seeking relief after a state court has issued a valid final
judgment in a foreclosure action. (See Docs. 1, Compl., and 7-5, State S.J. Ord.). The case at
bar appears to be factually similar to Brown. The plaintiff in Brown filed suit in federal court
after a state foreclosure proceeding, alleging: “fraud, breach of the duty of good faith, rescission
of the sale of real property, conversion, breach of a settlement agreement, and intentional
infliction of emotional distress” against a defendant mortgage lender. Brown, 206 F. App’x at
438. The district court dismissed Brown’s claims against the mortgage lender finding that
Rooker-Feldman stripped the court of subject matter jurisdiction. Id. On appeal, the Sixth
Circuit overturned the district court, finding that “the source of the injury asserted by Brown’s
complaint is the defendant’s conduct, not the state court judgment[.]” Id. at 440.
Like the plaintiff in Brown, in Counts 1, 2, 5–17, and 19, Pace has asserted claims against
Defendants to include: fraudulent conduct before and throughout the foreclosure proceedings;
violation of federal laws before and throughout the foreclosure proceedings; breach of the duty
of good faith; and conversion. (See generally Doc. 1, Compl.). Given the factual similarities
between the facts of this case and Brown, this Court finds that the source of Plaintiff’s injury
upon which he bases Claims 1, 2, 5–17, and 19 is the Defendants’ conduct which gave rise to the
state court proceedings, rather than the state court judgment itself. Thus, Rooker-Feldman is
inapplicable to Counts 1, 2, 5–17, and 19.
In Counts 3 and 4, Pace has asserted claims that may be predicated on Defendants’
unlawful conduct in collecting the money judgment after the adjudication of the foreclosure
proceedings. 2 (See Doc. 1, Compl. at ¶¶ 17–23 and 94–95). The source of injury of these

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It is unclear from Plaintiff’s Complaint which alleged facts give rise to Counts 3 and 4. (See Doc. 1, Compl. at
¶¶ 17–23). As “[p]ro se plaintiffs enjoy the benefit of a liberal construction of their pleadings and filings[,]” for

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claims may not be the state court judgment itself, but rather Defendants’ allegedly unlawful
methods of collecting the state judgment. As such, Rooker-Feldman would not act as a bar to
this Court’s jurisdiction over Claims 3 and 4.
Rooker-Feldman does not bar this Court from hearing Count 20. In Count 20, Plaintiff is
seeking to collect damages to recoup resources spent in litigating both the state case and the
current federal case. While the Court acknowledges that Count 20 is not predicated on a
recognized cause of action, the Court also finds that Rooker-Feldman does not strip this Court of
subject matter jurisdiction over the claim because the source of Plaintiff’s injury is independent
from the state court judgment.
2.

Count Eighteen

In Count 18, Plaintiff alleges that Defendants were unjustly enriched when Plaintiff paid
Defendants the balance and accrued interest of the loan. (Doc. 1, Compl. at ¶¶ 82–86). The
Court finds that Rooker-Feldman bars the Court from hearing this claim. The unjust enrichment
claim does not arise out of the conduct which gave rise to the initial foreclosure action. Instead,
the source of injury for Plaintiff’s unjust enrichment claim is the state court judgment itself, as
the state court ordered Plaintiff to pay the remaining balance of the loan, plus interest, to
Defendants. (Doc. 7-5, State S.J. Ord.). Accordingly, because in Count 18 Plaintiff seeks relief
from the state court judgment itself, this Court lacks subject matter jurisdiction as to Plaintiff’s
unjust enrichment claim.

Rooker-Feldman purposes, this Court will apply a liberal interpretation of Counts 3 and 4. See Boswell v. Mayer, 169
F.3d 384, 387 (6th Cir. 1999). Such an interpretation for Rooker-Feldman purposes is not a finding that Plaintiff has
met Rule 8’s pleading requirements.

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Thus, the Court finds that Rooker-Feldman does not deprive this Court of subject matter
jurisdiction over Counts 1–17, 19, and 20. However, the Court does not have subject matter
jurisdiction over Count 18; as such, the Court grants Defendants’ Motions to Dismiss Count 18.
B.

Res Judicata
The Court now addresses whether Plaintiff is precluded by the doctrine of res judicata

from asserting the remaining claims. In Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S.
75 (1984), the Supreme Court stated that “[i]t is now settled that a federal court must give to a
state-court judgment the same preclusive effect as would be given that judgment under the law of
the State in which the judgment was rendered.” Id. at 89. “Under Ohio law, the doctrine of res
judicata consists of the two related concepts of claim preclusion . . . and issue preclusion.” Ohio
ex rel. Boggs v. City of Cleveland, 655 F.3d 516, 519 (6th Cir. 2011) (internal quotation marks
omitted). Defendants assert that Plaintiff’s claims are barred by claim preclusion. (Docs. 7-1,
BANA/Deutsche Mem. at 13, and 20-1, SLS Mem. at 2). 3 Claim preclusion, under Ohio law,
consists of four elements:
(1) a final decision on the merits by a court of competent jurisdiction; (2) a
subsequent action between the same parties or their ‘privies’; (3) an issue in
the subsequent action which was litigated or which should have been litigated
in the prior action; and (4) an identity of the causes of action.
Winget v. JPMorgan Chase Bank, N.A., 537 F.d 565, 577–78 (6th Cir. 2008) (quoting Browning
v. Levy, 283 F.3d 761, 771–72 (6th Cir. 2002)). The Court will now address whether each of the
four elements have been met.

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While SLS did not expressly argue that Plaintiff’s claims are barred by claim preclusion, SLS adopted and
incorporated “the facts, case law, and legal arguments” asserted in Deutsche Bank and BANA’s Motion to Dismiss.
(Doc. 20, Mot. at 2).

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1.

Valid Final Judgment on the Merits

On July 31, 2007, the Delaware County Court of Common Pleas granted Deutsche Bank’s
Motion for Summary Judgment in its foreclosure action against Gabriel Pace (Plaintiff in the
current case). (Doc. 7-5, State S.J. Ord.). A judgment in a foreclosure action is a final decision
on the merits of the case. See CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d 299, 2014-Ohio1984, ¶ 19 (citing Ohio Rev. Code § 2505.02(B)(1)). Thus, the Court finds that there was a valid
final judgment on the merits in the state foreclosure action.
2.

Same Parties or Privies Thereof

Deutsche Bank and Plaintiff were parties in the prior action. (See Docs. 7-2, Compl. in
Foreclosure and 7-5, State S.J. Ord.). The Court must now determine whether BANA and SLS
are in privity with a party in the prior case. Courts within Ohio “have applied a broad definition
to determine whether the relationship between the parties is close enough to invoke” res judicata.
Kirkhart v. Keiper, 101 Ohio St.3d 377, 2004-Ohio-1496, 805 N.E.2d 1089, ¶ 8. For the purpose
of claim preclusion, loan servicers are in privity with lenders. Dale v. Selene Fin. LP, No.
3:15CV1762, 2016 WL 1170772 at *7 (N.D. Ohio Mar. 25, 2012) (citations omitted). Because
both BANA and SLS are loan servicers, the Court finds that BANA and SLS are in privity with
Deutsche Bank (the lender) for claim preclusion purposes.
3.

Claims Litigated or Could Have Been Litigated in Prior Action

Claims brought forth in a subsequent action need not have been actually litigated in the
prior action; “[a]s the ‘could have’ phrasing implies, this element concerns only the legal
possibility of bringing the disputed claims in the previous action.” United States ex rel. Sheldon
v. Kettering Health Network, 816 F.3d 399, 416 (6th Cir. 2016) (citations omitted). Thus, the
scope of this prong “precludes litigati[on of] a claim or defense that should have been raised . . . in
the prior suit.” Mitchell v. Chapman, 343 F.3d 811, 819 (6th Cir. 2003) (citations omitted).
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Plaintiff could have brought Claims 1, 2, 5–17, and 19 against Defendants in the previous
suit. Plaintiff knew of the conduct for which he now seeks redress at the time of the foreclosure
case as these claims are based upon Defendants’ actions prior to and throughout the foreclosure
proceedings. (See generally Doc. 1, Compl.). Thus, the Court finds that Claims 1, 2, 5–17, and
19 could have been litigated in the prior action.
4.

Same Transaction or Occurrence

The last element of res judicata is satisfied if the claims “arose of the same core of operative
facts.” Browning, 283 F.3d at 774 (citation and internal quotation marks omitted). The subject of
the state foreclosure action was the notes and mortgages executed on Plaintiff’s property. (See
Docs. 7-2, Compl. in Foreclosure and 7-5, State S.J. Ord.). Counts 1, 2, 5–17, and 19 allege that
Defendants acted contrary to law when executing the notes and mortgages that were the subject of
the previous state judgment. (See generally Doc. 1, Compl.). Thus, Counts 1, 2, 5–17, and 19
arose out of the same operative facts that gave rise to the state foreclosure proceedings and the
fourth element of res judicata is met.
The Court finds that the doctrine of res judicata bars Plaintiff from litigating Counts 1, 2,
5–17, and 19. Accordingly, the Court shall grant Defendants’ Motion to Dismiss Counts 1, 2, 5–
17, and 19.
C.

Failure to State a Claim
As an alternative to the jurisdictional arguments, Defendants argue that Plaintiff has failed

to state a claim on the remaining claims. The Court will address the remaining claims in turn.
1.

Count Three: Violations of the Fair Debt Collection Practices Act

To successfully allege a violation of the Fair Debt Collection Practices Act (“FDCPA”) a
plaintiff must show that: (1) plaintiff is a “ ‘consumer’ as defined by the Act; (2) the
‘debt’ . . . arise out of transactions which are ‘primarily for personal, family, or household
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purposes’; (3) defendant [is] a ‘debt collector’ as defined by the Act; and (4)
defendant . . . violated § 1692e’s prohibitions.” Sohi v. Diversified Adjustment Serv., Inc., No.
1:15-CV-563, 2016 WL 2745298, at *6 (S.D. Ohio May 10, 2016) (citation omitted). Plaintiff
has failed to assert three of the required elements. Plaintiff has not asserted that: 1) he is a
consumer as defined in 15 U.S.C. § 1692; 2) that Defendants are “debt collectors”; and 3) that
the debt arose out of transactions that Plaintiff entered into “primarily for personal, family, or
household purposes.” (See Doc. 1, Compl. at ¶¶ 17–20).
Furthermore, Plaintiff has failed to provide Defendants with sufficient factual support of
the FDCPA claim. After the Supreme Court’s decisions in Twombly and Iqbal, a “plaintiff must
present a facially plausible complaint assert more than bare legal conclusions.” Theile v.
Michigan, 891 F.3d 240, 243 (6th Cir. 2018) (citing Twombly, 550 U.S. at 556; Iqbal, 556 U.S.
at 677–678). Plaintiff’s Complaint fails to present any facts in support of his FDCPA claim;
instead, Plaintiff merely asserts “bare legal conclusions.” (See Doc. 1, Compl. at ¶¶ 17-20). As
such, Plaintiff has failed to meet the pleading standard established in Twombly and Iqbal.
In addition to arguing that Plaintiff has failed to sufficiently plead a violation of FDCPA,
Defendants also assert that Plaintiff’s FDCPA claim is barred by the applicable statute of
limitations. (Doc. 7-1, BANA/Deutsche Mem. at pp. 9–10). But because Plaintiff has not
sufficiently detailed the conduct which gives rise to this Claim, the Court declines to decide as to
whether the statute of limitations has run. Thus, for the foregoing reasons, this Court dismisses
Count Three of Plaintiff’s Complaint.
2.

Claim Four: Violation of the Fair Credit Reporting Act (FCRA)

In Count Four of the Complaint, Plaintiff alleges that Defendants violated the Fair Credit
Reporting Act (“FCRA”). (Doc. 1, Compl. at ¶¶ 21–23). “Only one provision of the FCRA

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applies to those who furnish credit information—15 U.S.C. § 1681s-2 . . . .” King, 2011 WL
2970915, at *10. To establish a violation of this section of the FCRA, a plaintiff must allege
defendants’ willful failure to comply with the statute’s requirements. See Boggio v. USAA Fed.
Sav. Bank, 696 F.3d 611, 615 (6th Cir. 2012) (citations omitted).
Plaintiff has not asserted that Defendants’ alleged violation of the statute was willful.
(See Doc. 1, Compl. at ¶¶ 21–23). Because Plaintiff has failed to plead the necessary elements of
a violation of the FCRA, the Court grants Defendants’ Motions to Dismiss Count 4.
3.

Claim Eighteen: Unjust Enrichment

In the alternative, even if Rooker-Feldman does not limit this Court’s subject matter
jurisdiction as to Count 18, Plaintiff is nonetheless barred from asserting an unjust enrichment
claim against Defendants. In Count 18, Plaintiff alleges that Defendants have been unjustly
enriched as Plaintiff paid the principal and interest of the debt on May 21, 2009. (Doc. 1,
Compl. at ¶ 83). Defendants argue that the existence of a written contract bars Plaintiff from
asserting an unjust enrichment claim. (Doc. 7-1, BANA/Deutsche Mem. at pp. 21–22). “To
establish unjust enrichment” under Ohio law, “a plaintiff must demonstrate ‘(1) a benefit
conferred upon a defendant; (2) knowledge by the defendant of the benefit; and (3) retention of
the benefit by the defendant under circumstances it would be unjust to do so without
payment[.]’ ” Wuliger v. Mfrs. Life Ins. Co., 567 F.3d 787, 799 (6th Cir. 2009) (change in the
original, citation omitted). Furthermore, “Ohio law is clear that a plaintiff may not recover under
the theory of unjust enrichment or quasi-contract when an express contract covers the same
subject.” Id. (internal quotation marks and citation omitted).
In his Complaint, Plaintiff has acknowledged the existence of written promissory notes.
(See Doc. 1, Compl. at ¶¶ 9 and 25–28). Thus, given the existence of a written contract between

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the parties, Plaintiff is barred under applicable law from obtaining relief under the theory of
unjust enrichment. To the extent that Rooker-Feldman does not strip this Court of subject matter
jurisdiction over Count 18, Plaintiff has failed to state a claim upon which relief can be granted.
Accordingly, the Court grants Defendants’ Motion to Dismiss Count 18.
4.

Claim Twenty: Claim for Attorney’s Fees and Costs

In Count 20, Plaintiff asserts a cause of action predicated on recovering attorneys’ costs
and fees. (Doc. 1, Compl. at ¶¶ 94–95). However, as Defendants correctly point out in their
response, a claim of “Attorney’s Fees and Costs” is not a recognized cause of action in this
Court. (See Doc. 7-1, BANA/Deutsche Mem. at pp. 23–24). Thus, Count 20 is dismissed.

IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ Motions to Dismiss
Plaintiff’s Complaint. All of Plaintiff’s claims are hereby DISMISSED. The Clerk is directed to
remove Documents 7 and 20 from the pending motions list and enter final judgment in favor of
the Defendants.
IT IS SO ORDERED.
s/ George C. Smith__________________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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