Jester v. Wells Fargo Bank, N.A. et al

Filing 54

OPINION AND ORDER by District Judge James H. Payne: granting 41 Defendant's Motion to Dismiss; denying 42 Defendants' Motion for Leave to File Judgment Rolls; denying 46 Plaintiff's Motion for Leave t o Amend Second Amended Complaint; denying 48 Plaintiff's Motion for Evidentiary Hearing, for Temporary Restraining Order, for Preliminary Injunction; denying 49 Plaintiff's Motion for Order to Show Cause and for Evidentiary Hearing (cjt, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

TIMMY DEWAYNE JESTER,

)
)
Plaintiff,
)
)
vs.
)
)
WELLS FARGO BANK N.A. and
)
WELLS FARGO HOME MORTGAGE, )
)
Defendants.
)

Case No. 16-CV-524-JHP

OPINION AND ORDER
Before this Court are (1) Defendants’ Motion to Dismiss Second Amended
Complaint (Dkt. 41), (2) Defendants’ Motion for Leave to File Judgment Rolls (Dkt.
42), (3) Plaintiff’s “Motion for Leave to Amend Its Second Amended Complaint”
(Dkt. 46), (4) Plaintiff’s “Emergency Motion for a Evidentiary Hearing for a
Temporary Restraining Order or Preliminary Injunction” (Dkt. 48), and (5)
Plaintiff’s “Emergency Motion for a Order to Show Cause and Request an
Evidentiary Hearing” (Dkt. 49). Plaintiff is proceeding pro se and in forma pauperis.
In the interest of efficiency, the Court will address each of the pending motions in
this Opinion and Order.

BACKGROUND
Plaintiff Timmy Dewayne Jester (“Plaintiff”) filed his original pro se
Complaint in this matter on December 2, 2016, seeking relief against Defendants
Wells Fargo Bank, N.A. and Wells Fargo Home Mortgage (together, “Defendants”)
for foreclosure fraud and unjust enrichment. (Dkt. 2). On July 26, 2017, after
obtaining permission from the Court, Plaintiff filed a Second Amended Complaint,
adding various causes of action against Defendants.
The Second Amended Complaint is rambling, repetitive, and difficult to
decipher. However, it is plain from the pleading and Defendants’ Motion to Dismiss
that Plaintiff’s claims stem from his attempts to prevent Defendants from enforcing
their Oklahoma State Court Foreclosure Judgment against him, in Wagoner County
Case No. CJ-2012-308 (the “2012 Foreclosure”). The relevant proceedings are
below described.
I.

The 2012 Foreclosure Proceeding
In the 2012 Foreclosure, Defendants moved for summary judgment, and

Plaintiff opposed Defendants’ motion by questioning the validity of the indorsement
from Washington Mutual Bank, FA, on his note and by alleging Mortgage Electronic
Registration Services, Inc. (“MERS”) mortgages are invalid in Oklahoma. (See Dkt.

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41-3 (Jester’s Response to Motion for Summary Judgment, June 16, 2014)).1 Judge
Shook of the Wagoner County District Court overruled Plaintiff’s objections in that
case and entered judgment in favor of Defendants on October 8, 2014. (Dkt. 41-4
(Journal Entry of Judgment)).

The Journal Entry of Judgment in the 2012

Foreclosure indicates the trial judge reviewed the original wet ink note and
determined the indorsements were valid. (See id. at 2-3). The trial judge also
specifically found that Defendants demonstrated standing to enforce the note. (Id.
at 3). The Journal Entry of Judgment was amended on January 13, 2015, to clarify
the judgment was only in rem. (Dkt. 41-5 Amended Journal Entry of Judgment)).
Plaintiff sought to vacate the judgment in the 2012 Foreclosure. (Dkt. 41-6
(Jester’s Amended Response for Motion to Vacate Summary Judgment, Feb. 20,
2015)). In that motion, Plaintiff raised numerous allegations against Defendants,
including: (1) the indorsement on the note was forged and invalid, (2) Plaintiff’s
mortgage payments had not been credited properly, in violation of various statutes
including the Oklahoma Consumer Protection Act (“OCPA”), 15 Okl. St. §§ 752 et
seq., (3) MERS mortgages cannot be valid in Oklahoma, (4) misconduct occurred
during Plaintiff’s Chapter 7 bankruptcy proceeding in 2011, (5) Plaintiff’s prior

1

The Court may take judicial notice of the public filings in the 2012 Foreclosure and in Plaintiff’s
Chapter 7 Bankruptcy proceeding, because they are matters of public record. Tal v. Hogan, 453
F.3d 1244, 1264 n.24 (10th Cir. 2006). Because the Court takes judicial notice of these public
filings, Defendants’ Motion for Leave to File Judgment Rolls (Dkt. 42) is denied.

3

counsel during the 2012 Foreclosure acted negligently and incompetently, and (6)
the loan was improperly serviced, in violation of the Real Estate Procedures Act
(“RESPA”), 12 U.S.C. §§ 2601-2617. (Id.). The Wagoner County District Court
denied Plaintiff’s motion to vacate on April 8, 2015. (See Dkt. 41-8 (Court of Civil
Appeals Opinion), ¶ 4). Plaintiff appealed, and on October 26, 2015, the Oklahoma
Court of Civil Appeals (“COCA”) affirmed the judgment in favor of Defendants.
(Dkt. 41-8 (COCA Opinion)). On April 11, 2016, the Oklahoma Supreme Court
denied Plaintiff’s petition for certiorari. (Dkt. 41-9 (Oklahoma Supreme Court
Order)).
II.

Plaintiff’s Chapter 7 Bankruptcy Proceeding
Also pertinent to this matter is Plaintiff’s 2011 bankruptcy proceeding, Case

No. 11-80627-TRC, in the United States Bankruptcy Court for the Eastern District
of Oklahoma (the “Bankruptcy Case”). A Chapter 7 Bankruptcy discharge was
entered in that case on July 27, 2011. (See Dkt. 41-1 (Discharge of Debtor)). On
October 28, 2014, Plaintiff sought to reopen his Chapter 7 Bankruptcy to pursue an
adversary proceeding against Defendants. (See Dkt. 41-10 (Motion to Reopen Case
for Purpose of Complaints)). Plaintiff requested the Bankruptcy Court review the
state court judgment against him in the 2012 Foreclosure. (Id.). He alleged a litany
of violations of state and federal law committed by Defendants, including violation
of the bankruptcy discharge injunction and automatic stay laws by foreclosing on
4

his mortgage; fraud; robo-signing; misapplication of his payments; violation of
RESPA; and intentional infliction of emotional distress. (Id.). On December 30,
2014, following a hearing, Judge Cornish issued an order denying Plaintiff’s request
to reopen, finding the Bankruptcy Court had no authority to set aside the state court
judgment in the 2012 Foreclosure. (Dkt. 41-11 (Order Denying Motion to Reopen)).
Judge Cornish concluded the Rooker-Feldman doctrine prevented the Bankruptcy
Court “from acting as an appellate court to review a final, state court judgment or
claims inextricably intertwined with them.” (Id. at 4). Judge Cornish also found no
violation of the automatic stay and no violation of the discharge injunction. (Id.).
Plaintiff appealed Judge Cornish’s ruling to the Bankruptcy Appellate Panel
(“BAP”), which affirmed the Bankruptcy Court’s order on October 22, 2015. (Dkt.
41-12 (Opinion, BAP Appeal No. EO-15-2)). Plaintiff then appealed to the Tenth
Circuit Court of Appeals, which affirmed the BAP’s Opinion on July 25, 2016. (Dkt.
41-13 (Order in Tenth Circuit Case No. 15-7079)).
III.

The Present Proceeding
Following the Tenth Circuit’s Order and Judgment in the Bankruptcy Case,

Plaintiff filed a Complaint in this matter. In the Second Amended Complaint,
Plaintiff again seeks review of the 2012 Foreclosure judgment, along with review of
the judgment in the Bankruptcy Case. The Second Amended Complaint lists twenty
causes of action against Defendants: (1) foreclosure fraud; (2) unjust enrichment;
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(3) fraud upon the court; (4) misrepresentation; (5) breach of contract; (6)
misapplication of payments; (7) deceit; (8) violation of RESPA, 12 U.S.C. §§ 26012617; (9) violation of the OCPA, 15 Okl. St. §§ 761(c)-(d)2; (10) lack of standing;
(11) dual tracking; (12) promissory fraud; (13) actual fraud (14) constructive fraud;
(15) violation of the automatic stay laws under 11 U.S.C. § 362(a); (16) violation of
the discharge injunction; (17) violation of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. §§ 1692e, 1692f, 1692j, and 1692k3; (18) violation of the
Fourteenth and Fifteenth Amendments; (19) forgery; and (20) infliction of emotional
stress. (See Dkt. 38, at 1). Plaintiff seeks relief in the form of voiding the judgment
in the 2012 Foreclosure, permanent injunction, reimbursement of fees and costs,
reimbursement of payments paid on the loan plus interest, and civil monetary
penalties available under Oklahoma and federal law. (Id. at 35-39).
Defendants have filed a motion to dismiss the allegations against them
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. 41).
Defendants simultaneously filed a Motion for Leave to File Judgment Rolls (Dkt.

2

It is unclear what subsection of the OCPA Plaintiff is referencing, as 15 Okl. St. § 761 was
repealed in 1980. Plaintiff later refers to 15 Okl. St. §§ 761.1(A), (B), and (E), which merely
describe liability and penalties for violations of the OCPA.
3
Plaintiff alleges the relevant statutes under the FDCPA are 15 U.S.C. § 1692(e), (f), (j), and (k).
However, the statute located at 15 U.S.C. § 1692(e) is simply a statement of purpose pertaining to
the FDCPA, and no subsections (f), (j), or (k) exist under § 1692. Instead, the Court reads
Plaintiff’s allegation to refer to the statutes located at 15 U.S.C. §§ 1692e, 1692f, 1692j, and 1692k,
as the headers of these subsections match the headers described by Plaintiff in the Second
Amended Complaint (Dkt. 38, at 25).

6

42). Plaintiff has responded to the Defendants’ motion. (Dkt. 43). Defendants have
filed a Reply. (Dkt. 44). Plaintiff thereafter filed an unauthorized Surreply brief.
(Dkt. 45).4
On September 7, 2017, Plaintiff filed a Motion for Leave to Amend the
Second Amended Complaint.

(Dkt. 46).

Defendants filed an Objection and

Response to Plaintiff’s Motion to Amend. (Dkt. 47). On November 3, 2017,
Plaintiff filed two motions: an “Emergency Motion for a Evidentiary Hearing for a
Temporary Restraining Order or Preliminary Injunction” (Dkt. 48) and an
“Emergency Motion for a Order to Show Cause and Request an Evidentiary
Hearing” (Dkt. 49). Defendants filed an Objection and Response to each motion.
(Dkts. 50, 51). The pending motions are now ripe for review by this Court.

Pursuant to Local Civil Rule 7.1(e), supplemental briefs are not encouraged and may be filed
“only upon motion and leave of Court.” Plaintiff failed to comply with this requirement. However,
Defendants have not objected to Plaintiff’s filing of a surreply. In the interest of giving Plaintiff
the opportunity to fully litigate his claim, the Court accepts the surreply and will consider its
substance.
4

7

DISCUSSION
IV.

Defendants’ Motion to Dismiss Second Amended Complaint
A.

Standard of Review
1.

Rule 12(b)(1) – Lack of Subject Matter Jurisdiction

The party asserting jurisdiction has the burden to allege jurisdictional facts
demonstrating the presence of federal subject matter jurisdiction. Montoya v. Chao,
296 F.3d 952, 955 (10th Cir. 2002). Rule 12(b)(1) motions to dismiss for lack of
subject matter jurisdiction “generally take one of two forms.” Stuart v. Colo.
Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). “First, a moving party
may make a facial attack on the complaint’s allegations as to the existence of subject
matter jurisdiction. In reviewing a facial attack, the district court must accept the
allegations in the complaint as true.” Id. (internal citation omitted).
The second type of attack goes beyond the allegations in the complaint and
challenges “the facts upon which subject matter jurisdiction depends.” Holt v.
United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (citation omitted). When
reviewing a factual attack on subject matter jurisdiction, “a district court may not
presume the truthfulness of the complaint’s factual allegations,” and a court’s
reference in such an instance “to evidence outside the pleadings does not convert the
motion to a Rule 56 motion” for summary judgment. Id. (citations omitted). When
ruling on a factual attack, a court “has wide discretion to allow affidavits, other
8

documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts”
without converting the motion into one for summary judgment. Stuart, 271 F.3d at
1225. To defeat a Rule 12(b)(1) motion based on a factual attack, a “plaintiff must
present affidavits or other evidence sufficient to establish the court’s subject matter
jurisdiction by a preponderance of the evidence.” Southway v. Central Bank of
Nigeria, 328 F.3d 1267, 1274 (10th Cir. 2003) (citation omitted). Here, Defendants
state they are raising a factual attack on the jurisdictional facts alleged by Plaintiff.
2.

Review of Pro Se Pleadings

The Court further notes that, while pro se pleadings must be liberally
construed and must be held to less stringent standards than formal pleadings drafted
by lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972), a district court should not
assume the role of advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Moreover, even pro se plaintiffs are required to comply with the “fundamental
requirements of the Federal Rules of Civil and Appellate Procedure,” and the liberal
construction to be afforded does not transform “vague and conclusory arguments”
into valid claims for relief. Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.
1994). The court “will not supply additional factual allegations to round out a
plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v.
N.M., 113 F.3d 1170, 1173-74 (10th Cir. 1997).

9

B.

Subject Matter Jurisdiction Over Claims Challenging the State
Court Judgment
1.

State-Based Claims

In the Second Amended Complaint, Plaintiff asserts fifteen state law claims
that were addressed in or intertwined with the 2012 Foreclosure judgment: (1)
foreclosure fraud; (2) unjust enrichment; (3) fraud on the court; (4)
misrepresentation; (5) breach of contract; (6) misapplication of payments; (7) deceit;
(8) violations of the OCPA for misapplication of payments; (9) lack of standing; (10)
dual tracking; (11) promissory fraud; (12) actual fraud; (13) constructive fraud; (14)
forgery; and (15) infliction of emotional distress. (See Dkt. 38, at 1). Defendants
seek dismissal of these claims, because they are based on two allegations already
rejected by the Wagoner County District Court in the 2012 Foreclosure—(1) that
Defendants lack standing to enforce the promissory note because the Washington
Mutual Bank indorsement is fraudulent, and (2) Defendants misapplied his
payments. Defendants argue Plaintiff’s claims amount to an improper request for
this Court to invalidate the state court’s rulings in the 2012 Foreclosure. The Court
agrees.
As Defendants correctly point out, Plaintiff’s claims, as enumerated above,
are subject to dismissal for lack of subject matter jurisdiction, pursuant to the
Rooker-Feldman doctrine. This doctrine is a jurisdictional prohibition, based on 28
10

U.S.C. § 1257, which holds that federal review of state court judgments may be
obtained only in the United States Supreme Court, not by collateral litigation in
federal district court. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Dist.
of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). The RookerFeldman doctrine applies to bar “a party losing in state court . . . from seeking what
in substance would be appellate review of the state judgment in a United States
district court, based on the losing party’s claim that the state judgment itself violates
the loser’s federal rights.” Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994).
In other words, the doctrine applies to “cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the district
court proceedings commenced and inviting district court review and rejection of
those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
284 (2005).
The doctrine also prohibits federal courts from hearing any claim that is
“inextricably intertwined” with a state court judgment. Tal v. Hogan, 453 F.3d 1244,
1256 (10th Cir. 2006). “A claim is inextricably intertwined if ‘the state-court
judgment caused, actually and proximately, the injury for which the federal-court
plaintiff seeks redress.’” Id. (quoting Kenmen Eng’g v. City of Union, 314 F.3d 468,
476 (10th Cir. 2002)). Nonetheless, Rooker-Feldman does not apply to claims
regarding the same subject matter as that presented in the state court action, as long
11

as the state-court judgment is not itself at issue. Bolden v. City of Topeka, Kan., 441
F.3d 1129, 1139 (10th Cir. 2006). The doctrine of res judicata governs litigation of
such repeat claims. Id. The federal court is tasked with distinguishing the two types
of claims. In re Miller, 666 F.3d 1255, 1261-62 (10th Cir. 2012).
Here, Plaintiff alleges in the Second Amended Complaint that the “Nature of
the Case” is, in part:
Judge Dennis Shook of the Wagoner County District Court State of
Oklahoma Case No. CJ-2012-0308 incorrectly granted Judgment on
October 8, 2014 in favor of the Defendant, Wells Fargo Bank, N.A. in
the Foreclosure Action filed against the Plaintiff Timmy Jester on July
6, 2012 where genuine issues of material facts exist which timely raised
and objected to by the Plaintiff. Where the Defendant Lacked Standing
to Foreclose on the Plaintiffs Property and the Court Lacked
Jurisdiction. The Foreclosure Judgment was based on Fraud, Deceit,
and Misrepresentation therefore the Foreclosure Judgment is Void.
(Dkt. 38, at 8). Plaintiff further alleges throughout the Second Amended Complaint
various grounds why the Wagoner County District Judge in the 2012 Foreclosure
was wrong in granting judgment against him, and why Defendants, Defendants’
attorneys, and Plaintiff’s previous attorneys are to blame. These allegations center
around claims that Defendants failed to credit his mortgage payments properly,
Defendants lacked standing to foreclose on his property, and the Washington Mutual
indorsement on the promissory note is fraudulent.
Although Plaintiff’s rambling allegations make it difficult to parse out the
facts underlying each of his numerous causes of action, it is clear that Plaintiff’s
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state-based claims are all attacks on the judgment in the 2012 Foreclosure. Plaintiff
already raised these challenges in the 2012 Foreclosure, and the Wagoner County
District Court and Oklahoma COCA already rejected these arguments in that
foreclosure proceeding. This Court could not find in Plaintiff’s favor on his statebased claims, and grant his requested relief, without undermining the 2012
Foreclosure judgment.

Moreover, the Tenth Circuit has clearly stated that

allegations of fraud in the state court proceeding do not prevent application of the
Rooker-Feldman doctrine to bar those fraud claims. See Tal, 453 F.3d at 1256-57;
Bradshaw v. Gatterman, 658 F. App’x 359, 362 (10th Cir. 2016).
After Plaintiff appealed the Wagoner County District Court’s judgment
against him in the 2012 Foreclosure to the Oklahoma COCA, and his petition for
certiorari to the Oklahoma Supreme Court was denied, Plaintiff’s remaining
recourse was to petition the United States Supreme Court pursuant to 28 U.S.C. §
1257. See Facio v. Jones, 929 F.2d 541, 543 (10th Cir. 1991). Plaintiff did not do
so, and the COCA’s opinion became final. Therefore, the 2012 Foreclosure has been
fully litigated and Plaintiff is bound by that state court result. Plaintiff invites this
court to review and reject the state court judgment in the 2012 Foreclosure, but
Rooker-Feldman bars this Court from entertaining such claims. This Court has no
jurisdiction to review the state court’s final order in the foreclosure proceeding.

13

Accordingly, Plaintiff’s fifteen state-based claims must be dismissed for lack of
subject matter jurisdiction.
2.

FDCPA and RESPA Claims

Plaintiff additionally alleges Defendants violated the FDCPA and RESPA.
Specifically, Plaintiff alleges an FDCPA violation occurred when Defendants
misapplied his mortgage payments (see Dkt. 38, at 25). Plaintiff fails to state any
facts to support a RESPA claim, but such a claim would necessarily be based on the
servicing of Plaintiff’s mortgage loan.

See, e.g., 12 U.S.C. § 2605 (setting

requirements for servicing of federally related mortgage loans).
These claims are also barred under Rooker-Feldman, because they present
issues that are inextricably intertwined with the 2012 Foreclosure proceedings. A
determination on the FDCPA and RESPA issues would necessarily require this
Court to revisit the question of whether Defendants’ foreclosure was proper. This
question was already answered as part of the 2012 Foreclosure judgment, and the
Rooker-Feldman doctrine prohibits this Court from reviewing and rejecting that
judgment. See Dillard v. Bank of New York, 476 F. App’x 690, 691-92 (10th Cir.
2012) (claims challenging bank’s documentation to foreclose and alleging that bank
used deceptive tactics in its pursuit of mortgaged property were barred by RookerFeldman doctrine, as they effectively sought review and rejection of foreclosure
proceedings); Orcutt v. Libel, 381 F.App’x 866, 866 (10th Cir. 2010) (claims that
14

foreclosures were illegal and that sought an injunction and damages are inextricably
intertwined with foreclosure decisions because they assert injuries based on the state
court decisions and, to prevail, would require the district court to review and reject
those decisions). Accordingly, Plaintiff’s FDCPA and RESPA claims are subject
to dismissal for lack of subject matter jurisdiction.
3.

Constitutional Claims

Plaintiff alleges the state courts in the 2012 Foreclosure violated his
constitutional rights under the Fourteenth and Fifteenth Amendments. However, as
Defendants point out, Plaintiff filed these claims in the wrong court. Pursuant to 28
U.S.C. § 1257, Plaintiff should have petitioned the United States Supreme Court for
certiorari to allege his constitutional rights were violated by the state courts in the
2012 Foreclosure. This is not the proper Court to make such a determination. Again,
Rooker-Feldman squarely bars this Court from hearing these claims, because
reviewing these claims would require review of the 2012 Foreclosure judgment.
Accordingly, Plaintiff’s constitutional claims are subject to dismissal for lack of
subject matter jurisdiction.
C.

Subject Matter Jurisdiction over Claims Decided in Bankruptcy
Court

In the Second Amended Complaint, Plaintiff asserts two claims that pertain to
his federal Bankruptcy Case: (1) violation of the automatic stay laws, codified at 11
15

U.S.C. § 362(a) and (2) violation of the discharge injunction, codified at 11 U.S.C.
524(a)(2). (See Dkt. 38, at 1). However, as Defendants point out, those claims were
already decided in Plaintiff’s Bankruptcy Case in Defendants’ favor. (See Dkt. 4111 (Order Denying Motion to Reopen)). That decision was affirmed by the Tenth
Circuit BAP and the Tenth Circuit Court of Appeals. (See Dkt. 41-12 (Opinion,
BAP Appeal No. EO-15-2); Dkt. 41-13 (Order, Tenth Circuit Case No. 15-7079)).
Therefore, these two claims are barred by the doctrine of res judicata.
Res judicata, or claim preclusion, “generally applies when there is a final
judgment on the merits which precludes the parties or their privies from relitigating
the issues that were decided or issues that could have been raised in the earlier
action.” Driver Music Co., Inc. v. Commercial Union Ins. Cos., 94 F.3d 1428, 1435
(10th Cir. 1996) (quotation omitted). To demonstrate res judicata, the defendant
bears the burden to prove (1) the prior suit ended with a judgment on the merits; (2)
the parties are identical or in privity; (3) the prior suit was based on the same cause
of action; and (4) the plaintiff had a full and fair opportunity to litigate the claim in
the prior suit. Nwosun v. General Mill Restaurants, Inc., 124 F.3d 1255, 1257 (10th
Cir. 1997).
Here, the elements of res judicata are met.

First, Plaintiff’s federal

Bankruptcy Case was fully adjudicated and ended with a judgment on the merits,
which was affirmed by the Tenth Circuit BAP and the Tenth Circuit Court of
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Appeals. (See Dkt. 41-11 (Order Denying Motion to Reopen); Dkt. 41-12 (Opinion,
BAP Appeal No. EO-15-2); Dkt. 41-13 (Order, Tenth Circuit Case No. 15-7079)).
Second, Plaintiff and Defendants were parties to the prior Bankruptcy Case. Third,
Plaintiff’s claims for violation of the automatic stay and discharge injunction were
addressed in the Bankruptcy Case, and Plaintiff’s claims for those violations arise
from the same set of facts in this case as in the Bankruptcy Case. See Nwosun, 124
F.3d at 1257 (noting that a cause of action for claim preclusion purposes “includes
all claims or legal theories of recovery that arise from the same transaction, event,
or occurrence.”). Fourth, Plaintiff had a full and fair opportunity to litigate the issues
of the automatic stay and discharge injunction in the Bankruptcy Case. Plaintiff
briefed those issues before Judge Cornish, and Judge Cornish held a hearing on those
issues before issuing a decision that rejected Plaintiff’s arguments. Accordingly,
claim preclusion applies, and Plaintiff is barred from raising those same arguments
here. These claims are subject to dismissal for lack of subject matter jurisdiction. 5
D.

Permanent Injunction

Finally, Plaintiff requests a permanent injunction preventing the foreclosure
sale of his home. (See Dkt. 38, at 38). To obtain a permanent injunction, a party

5

Because the Court disposes of Plaintiff’s claims based on lack of subject matter jurisdiction
pursuant to Rooker-Feldman and res judicata, the Court will not consider Defendants’ various
“alternative” arguments for dismissal, including Defendants’ arguments for dismissal based on
Rule 12(b)(6).

17

must prove: “(1) actual success on the merits; (2) irreparable harm unless the
injunction is issued; (3) the threatened injury outweighs the harm that the injunction
may cause the opposing party; and (4) the injunction, if issued, will not adversely
affect the public interest.” Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d
818, 822 (10th Cir. 2007) (quotation omitted). “A permanent injunction cannot be
granted if any of the four requirements has not been met.” Utah Env’l Cong. v.
United States Bureau of Land Mgmt., 119 F. App’x 218, 220 (10th Cir. 2004) (citing
Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1180 (10th Cir. 2003)).
For the reasons explained above, this Court concludes that Plaintiff cannot
succeed on the merits of his various claims because they are barred under either the
Rooker-Feldman doctrine or res judicata. This Court has no authority to enjoin the
judgment in the 2012 Foreclosure proceeding. Accordingly, Plaintiff cannot obtain
a permanent injunction.
E.

Plaintiff’s Response and Surreply

Plaintiff’s Response (Dkt. 43) and Surreply (Dkt. 45) in opposition to the
Motion to Dismiss do not offer any basis to save his claims. In his Response brief,
Plaintiff reiterates the allegations in the Second Amended Complaint and denies that
he is seeking review of the 2012 Foreclosure judgment. However, Plaintiff also
states in his Response that “the Oklahoma State Court Foreclosure Judgment is not
valid, it is void” (Dkt. 43, at 2), and it is clear from the substance of his Response
18

that he indeed seeks to reopen the 2012 Foreclosures proceedings. Plaintiff’s
adamant denials in this regard do not change the circumstances of this case.
In the Response, Plaintiff asserts he has a right to plead his case based on the
United States Constitution, 42 U.S.C. § 1983, and fraud on the court. (Id. at 6).
However, for the reasons explained above, Plaintiff’s recourse in the 2012
Foreclosure proceeding was to the United States Supreme Court, not this Court.
Plaintiff repeatedly insists that his allegation of fraud on the court in the 2012
Foreclosure proceeding permits this Court to set aside that judgment (see Dkt. 43, at
8-11). However, as Defendants explain in their Reply brief, allegations of fraud
perpetrated on the state court do not overcome the Rooker-Feldman bar. See, e.g.,
Farris v. Burton, 686 F. App’x 590, 592-93 (10th Cir. 2017). In Farris, the Tenth
Circuit rejected the plaintiff’s § 1983 claim brought in federal district court, in which
she alleged fraud on the court was committed during her state court divorce
proceeding. Id. The panel explained the plaintiff’s allegations implicated the
Rooker-Feldman bar, because her claims rested on “allegations concerning the statecourt proceedings or judgment.” Id. at 592 (quoting PJ ex. rel. Jensen v. Wagner,
603 F.3d 1182, 1193 (10th Cir. 2010)) (quotation marks and alteration omitted).
In his Response, Plaintiff relies on the Supreme Court’s decision in HazelAtlas Glass Co., v. Hartford-Empire Co., 322 U.S. 238 (1944), in which the Supreme
Court confirmed the Circuit Court’s ability to vacate its own judgment upon proof
19

of fraud. However, as the panel in Farris explained, “[t]he Hazel-Atlas decision
relates solely to the issue of fraud committed in a federal court and that court’s power
to remedy it; the decision says nothing about the jurisdiction of a federal court to
address fraud allegedly committed in a state court.” 686 F. App’x at 592-93. By
contrast, the Rooker-Feldman doctrine prohibits a federal court from reviewing
fraud allegedly committed in a state court. Accordingly, Rooker-Feldman prohibits
this Court from voiding the 2012 Foreclosure judgment and re-litigating issues that
were decided or should have been raised in the state court proceedings, even if fraud
on the court is alleged.
Plaintiff further argues the state court decided only two of his present twenty
claims, and the counterclaims he did raise in the 2012 Foreclosure proceeding were
ignored by the state court. However, as explained above, all of Plaintiff’s claims
(apart from the violation of the automatic stay and discharge injunction) would
require this Court to void the state court judgment and reconsider issues already
decided in the state court. If Plaintiff’s counterclaims were not heard by the state
court, the appropriate remedy was to petition the United States Supreme Court
pursuant to 28 U.S.C. § 1257. This Court has no authority to hear those claims or
decide whether Plaintiff’s constitutional rights were violated by the state court’s
action or inaction in the 2012 Foreclosure.

20

In addition, Plaintiff states in his Response brief that he was unaware he could
appeal to the United States Supreme Court, and the Supreme Court would have ruled
against him anyway. (Dkt. 43, at 3-4). Whatever the reason, Plaintiff’s failure to
follow proper appellate procedure does not confer this Court jurisdiction over
Plaintiff’s claims. Plaintiff’s claims must be dismissed.
V.

Plaintiff’s Motion for Leave to Amend
Plaintiff seeks leave to amend his Second Amended Complaint, to add several

new defendants: (1) attorneys at Shapiro and Cejda L.L.C., (2) attorneys at Baer
Timberlake Coulson & Cates PC, and (3) attorney Mark Hardin with Pierce Couch
Hendrickson Baysinger & Green L.L.P. (together, the “Attorneys”) (Dkt. 46).
Plaintiff seeks to add these defendants to assert claims against them for allegedly
providing false documentation to the state court in the 2012 Foreclosure proceeding.
Plaintiff also asks for leave to amend to clarify the cause of action and the nature of
the case. Plaintiff does not attach a proposed Third Amended Complaint, and he
does not explain how he proposes to amend his existing claims. Defendants oppose
Plaintiff’s request to amend. (Dkt. 47).
A.

Standard of Review

Plaintiff seeks amendment pursuant to Federal Rule of Civil Procedure
15(a)(2). Under Rule 15(a)(2), “‘a party may amend its pleading only with the
opposing party’s written consent or the court’s leave.’” Bylin v. Billings, 568 F.3d
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1224, 1229 (10th Cir. 2009) (quoting Fed. R. Civ. P. 15(a)(2)). “The rule instructs
courts to ‘freely give leave when justice so requires.’” Id. (quoting Fed. R. Civ. P.
15(a)(2)). The Rule’s purpose “is to provide litigants the maximum opportunity for
each claim to be decided on its merits rather than on procedural niceties.” Minter v.
Prime Equip. Co, 451 F.3d 1196, 1204 (10th Cir. 2006) (quotation omitted).
Therefore, “[r]efusing leave to amend is generally only justified upon a showing of
undue delay, undue prejudice to the opposing party, bad faith or dilatory motive,
failure to cure deficiencies by amendments previously allowed, or futility of
amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (citations
omitted). “A court properly may deny a motion for leave to amend as futile when
the proposed amended complaint would be subject to dismissal for any reason.”
Bauchman for Bauchman v. W. High Sch., 132 F.3d 542, 562 (10th Cir. 1997).
B.

Proposed Amendment to Add New Defendants

As Defendants point out, it would be futile to allow an amendment to add their
attorneys as defendants, because Oklahoma does not recognize a civil claim for the
type of fraud alleged—intrinsic fraud. The Oklahoma Supreme Court defines
“intrinsic fraud” as:
any fraudulent conduct of the successful party which was practiced
during the course of an actual adversary trial of the issues joined and
which had no effect directly and affirmatively to mislead the defeated
party to his injury after he announced that he was ready to proceed with
the trial. If during the trial the successful party urges forged
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instruments, or perjured testimony or fails to introduce witnesses of
whom he has knowledge and whose testimony would help his adversary
and impair his own case, he is guilty of fraud; but it is intrinsic fraud,
for relief from which application must be made to the court having
jurisdiction of the issues joined and tried.
Patel v. OMH Medical Center, Inc., 987 P.2d 1185, 1196 (Okla. 1999) (quotations
omitted). The Oklahoma Supreme Court in Patel further held: “in this state no civil
action may be maintained for damages caused by perjury, whether the petition for
damages refers to the tort as perjury or as fraud or deceit.” Id. at 1202 (citing Cooper
v. Parker-Hughey, 894 P.2d 1096 (Okla. 1995)). The Patel court explained that
“perjurious testimony constitutes a fraud or deceit on the finders of fact and on the
judicial system as a whole, and not on an individual litigant.” Id. (citing Cooper,
894 P.2d at 1100).
In addition, the Oklahoma Supreme Court has held that a second action
attacking alleged intrinsic fraud committed in a prior action is improper. FDIC v.
Jernigan, 901 P.2d 793 (Okla. 1995). In Jernigan, the court found that fraud
consisting of counsel’s false and misleading statements to the trial court did not rise
beyond intrinsic fraud—that is, fraud which is perpetrated within the course of
adversary proceedings. Id. at 798. The court held, “[r]elief from intrinsic fraud must
be sought by direct attack launched in the case in which the fraud was committed.”
Id. (citing Chapman v. Chapman, 692 P.2d 1369, 1373 n.6 (Okla. 1984)).

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Because Plaintiff alleges the Attorneys’ fraud occurred within the course of
the 2012 Foreclosure, Oklahoma law clearly requires Plaintiff to seek relief from
such fraud in the Oklahoma state court where that proceeding occurred.
Accordingly, Plaintiff cannot state a valid claim against the Attorneys for fraud on
the court, and this Court must deny Plaintiff’s request to add these defendants as
futile.
C.

Proposed Amendment to Clarify Existing Claims

The Court also denies Plaintiff’s request to amend his existing claims to
clarify the cause of action and the nature of the case. Plaintiff already has had ample
opportunity to state his claims and cure any deficiencies by previous amendment,
and Plaintiff points to no proposed amendments to the Second Amended Complaint
that would affect the outcome of this case. “Where the party seeking amendment
knows or should have known of the facts upon which the proposed amendment is
based but fails to include them in the original complaint, the motion to amend is
subject to denial.” Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d
1182, 1185 (10th Cir. 1990) (quotation omitted). Accordingly, Plaintiff’s request
for leave to amend his existing claims is denied.

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VI.

Plaintiff’s Emergency Motion for a Temporary Restraining Order or
Preliminary Injunction
On November 3, 2017, Plaintiff filed an “Emergency Motion for a Evidentiary

Hearing for a Temporary Restraining Order or Preliminary Injunction.” (Dkt. 48).
In this motion, Plaintiff states his property was sold at foreclosure auction on
October 17, 2017, by Sheriff’s sale, and he is currently subject to eviction from the
foreclosed property. Plaintiff reiterates many of the allegations in the Second
Amended Complaint, and he again asserts the 2012 Foreclosure judgment is void
and should be vacated by this Court. Plaintiff requests a temporary restraining order,
a preliminary injunction, and a permanent injunction enjoining Defendants from
selling or attempting to sell the property. In addition, he requests a declaration that
sale of the property to enforce the deed of trust/mortgage is improper and that
Defendants do not legally hold the note or deed of trust or have the right to foreclose
on the property. (See Dkt. 48, at 10-11).
This Court previously denied Plaintiff’s request for a temporary restraining
order and preliminary injunction. (See Dkt. 6 (Opinion and Order, Dec. 7, 2016)).
In that Opinion and Order, the Court concluded Plaintiff’s attempt to enjoin the sale
of the property was barred by the Rooker-Feldman doctrine, because it sought to
undo the state court’s order in the 2012 Foreclosure proceeding. (See id.). Plaintiff
presents no facts or arguments that would alter the Court’s conclusion in the
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December 7, 2016, Opinion and Order. Accordingly, Plaintiff’s requests for a
temporary restraining order and preliminary injunction are denied.
Moreover, the Court concludes above in Part I.D that Plaintiff is not entitled
to a permanent injunction. Plaintiff’s motion presents no arguments or facts to
change that conclusion. Accordingly, Plaintiff’s request for a permanent injunction
is denied.
VII. Plaintiff’s Emergency Motion for an Order to Show Cause
Finally, on November 3, 2017, Plaintiff filed an “Emergency Motion for a
Order to Show Cause and Request an Evidentiary Hearing.” (Dkt. 49). In this
motion, Plaintiff asks the Court to set a hearing regarding cancellation of the sale of
Plaintiff’s property. Plaintiff further requests that the Court vacate/dismiss the 2012
Foreclosure judgment, that the assignment of mortgage to Wells Fargo Bank NA be
removed from Plaintiff’s land record, and that Defendants be forever barred from
filing a claim on the property. (See Dkt. 49, at 12-13).
In response, Defendants state the confirmation of the Sheriff’s sale of the
subject property has already occurred, which renders the hearing request moot. (Dkt.
51). Defendants further argue the Court lacks jurisdiction to vacate or dismiss the
2012 Foreclosure judgment pursuant to the Rooker-Feldman doctrine and this Court
lacks jurisdiction to remove a recorded assignment of mortgage from the land
records.
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The Court agrees it lacks authority to grant Plaintiff’s requested relief. A
hearing on Plaintiff’s motion is unnecessary. For the reasons explained above in
Part I.B.1, Rooker-Feldman bars this Court from vacating or dismissing the
judgment in the 2012 Foreclosure proceeding. Further, Plaintiff cites no authority
that would permit this Court to remove an assignment of mortgage from the land
records, particularly when this Court is prohibited from vacating the 2012
Foreclosure judgment, and the Court is unaware of any such authority. Finally, a
permanent injunction prohibiting Defendants from filing a claim on Plaintiff’s
property is unavailable, for the reasons explained above in Part I.D. Accordingly,
Plaintiff’s motion (Dkt. 49) is denied in its entirety.
CONCLUSION
For the reasons outlined above, the Court concludes that dismissal of this
action as to Defendants is warranted. Accordingly, Defendant’s Motion to Dismiss
(Dkt. 41) is GRANTED. Plaintiff’s “Motion for Leave to Amend Its Second
Amended Complaint” (Dkt. 46) is DENIED. Plaintiff’s action is DISMISSED
WITHOUT PREJUDICE as to both Defendants.
In addition, it is ordered that:

Plaintiff’s “Emergency Motion for a

Evidentiary Hearing for a Temporary Restraining Order or Preliminary Injunction”
(Dkt. 48) is DENIED. Plaintiff’s “Emergency Motion for a Order to Show Cause

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and Request an Evidentiary Hearing” (Dkt. 49) is DENIED. Defendants’ Motion
for Leave to File Judgment Rolls (Dkt. 42) is DENIED.
IT IS SO ORDERED this 21st day of March, 2018.

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