Lemay v. Wells Fargo Bank/Home Mortgage et al

Filing 19

OPINION AND ORDER by Chief Judge Gregory K Frizzell ; granting 6 Motion to Dismiss; granting 8 Motion to Dismiss (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
WILLIAM KEITH LEMAY,
an individual
Plaintiff,
v.
WELLS FARGO BANK, N.A.;
WELLS FARGO HOME MORTGAGE,
and BRET D. DAVIS,
Defendants.

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Case No. 16-CV-749-GKF-FHM

OPINION AND ORDER
Before the court is the Motion to Dismiss [Doc. No. 6] of defendant Brett Davis (“Mr.
Davis”) and the Motion to Dismiss [Doc. No. 8] of defendants Wells Fargo Bank, N.A., and
Wells Fargo Home Mortgage (collectively, “Wells Fargo”). For the reasons set forth below, the
motions are granted.
I. Background
This dispute arises from Wells Fargo’s foreclosure on the home of plaintiff William
Keith Lemay (“Mr. Lemay”). On August 4, 2016, the District Court for Washington County,
Oklahoma, entered judgment in Wells Fargo N.A.’s favor in the underlying foreclosure action.
[Doc. No. 6-1]. Mr. LeMay filed the instant suit on December 16, 2016, alleging fraud, bank
fraud, conspiracy, obstruction of justice, tax fraud, money laundering, wire fraud, perjury, due
process violations, failure to produce the original note, and violations of the PATRIOT Act.
[Doc. No. 2]. The complaint consists of a hodgepodge of filings from other courts, a declaration
by Franklin Garfield, Esq. in a federal bankruptcy proceeding in Arizona, assorted caselaw, and
excerpts from a booklet entitled “Your Money.” Mr. Davis and Wells Fargo now move to
dismiss.

II. Failure to State a Claim
On a motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6), the court must determine
whether the plaintiff states a claim upon which relief can be granted. To that end, a complaint
must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). “[A] plaintiff’s obligation . . . requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id.
at 555 (quotation marks omitted). In construing a complaint, “the court should not assume the
role of advocate, and should dismiss claims” that are vague or incomprehensible. See Verry v.
City of El Reno, No. CIV-05-1121-F, 2005 WL 3187265, at *1 (W.D. Okla. Nov. 29, 2005);
Moser v. Okla., 118 Fed. App’x 378, 381 (10th Cir. 2004). The plausibility requirement helps
“weed out” claims lacking any reasonable prospect of success. See Robbins v. Okla., 519 F.3d
1242, 1248 (10th Cir. 2008).
Mr. Lemay’s complaint “consists of an unintelligible patchwork of inapplicable case law,
irrelevant statutes[,] and memorand[a] apparently procured from the internet.” See Lee v. First
Un. Bank & Trust, No. 11-CV-637-TCK, 2012 WL 1955873, at *1 (N.D. Okla. May 30, 2012)
(quotation marks and citation omitted). Indeed, the bulk of Mr. Lemay’s allegations appear to be
“a boilerplate recitation of someone’s thoughts on the banking and real estate industries”
available for download “on various websites.” See Johnson v. BAC Home Loan Servicing, LP,
No. 5:10-CV-271-F, 2011 WL 223874, at *5 (E.D. N.C. 2011). Specifically, the “affidavit” of
Neil Franklin Garfield, Esq.—attached to the complaint—advances a “vapor money” theory, a
“convoluted and nonsensical argument that a plaintiff does not owe . . . money advanced by [a]
lender . . . because the indebtedness was not funded by the lender with actual money.” Gilford v.

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Bank of N.Y. Mellon, No. 1:14-CV-03808-CC-JCF, 2015 WL 11978618, at *3 (N.D. Ga. Apr.
16, 2015) (quotation marks and citation omitted). That so-called “theory” has been roundly
rejected by federal courts. See id.; Evans v. Beneficial Fin., Inc., No. DKC 14-1994, 2015 WL
535718, at *5 (D. Md. Feb. 9, 2015) (collecting cases).
In this way, the complaint not only fails to state “any cognizable claim or set of facts
from allegations therein,” see Lee, 2012 WL 1955873, at *1; see also Perkins v. Bank of N.Y.
Mellon, No. 3:10CV449-JAG, 2011 WL 486943, at *4 (E.D. Va. Feb. 4, 2011); Stewart v. HSBC
Bank, USA, No. 3:10CV586, 2010 WL 3522087, at *3 (E.D. Va. Sept. 3, 2010), but also fails to
comply with Rule 8(a)(2)’s requirement for “a short and plain statement of the claim showing”
entitlement to relief, Fed. R. Civ. P. 8(a)(2); Johnson, 2011 WL 223874, at *5; Stewart, 2010
WL 3522087, at *3; Perkins, 2011 WL 486943, at *4. Mr. Lemay responds that a pro se
litigant’s complaint must be construed liberally. And that is true. But “pro se status does not
excuse the obligation of any litigant to comply with the fundamental requirements of the Federal
Rules of Civil [Procedure].” See Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994).
Accordingly, Lemay’s claims are dismissed for failure to state a claim upon which relief can be
granted.1
III. The Rooker-Feldman Doctrine
Alternatively—to the extent the court can divine anything from the complaint—Mr.
Lemay’s claims against Wells Fargo, N.A. are barred by the Rooker-Feldman doctrine. The

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Mr. Lemay responded to defendants’ motions to dismiss on February 23, 2017, filing an
“Objection to Defendants’ Motion to Dismiss” [Doc. No. 17] and an “Affidavit of Truth” [Doc
No. 18]. While these filings provide clarifying detail concerning the state court foreclosure
proceedings, they do not address the fundamental deficiencies with Mr. Lemay’s complaint. To
the contrary, Mr. Lemay doubles down on the vapor money theory, which undergirds all of his
claims, [Doc. No. 18, pp. 2, 5–8], and makes clear the gravamen of his complaint concerns the
state court proceedings, [id. at 3–5]; [Doc. No. 17, pp. 2–5].
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Rooker-Feldman doctrine provides that “federal district courts lack jurisdiction to review state
court judgments.” Read v. Klein, 1 Fed. App’x 866, 869 (10th Cir. 2001); Campbell v. City of
Spencer, 692 F.3d 1278, 1281 (10th Cir. 2012) (“Rooker-Feldman is a jurisdictional
prohibition[.]”). Rather, pursuant to 28 U.S.C. § 1257, “[r]eview of [a] state court judgment
must proceed to the state’s highest court and then to the United States Supreme Court.” In this
way, “[t]he Rooker-Feldman doctrine prohibits federal suits that amount to appeals of state-court
judgments.” Bolden v. City of Topeka, 441 F.3d 1129, 1139 (10th Cir. 2006). Specifically, it
bars jurisdiction of cases brought by state-court losers complaining of” injuries related to claims
that were—or should have been—raised in state proceedings. See Exxon Mobile Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 284 (2005). The doctrine reaches all claims “inextricably
intertwined” with a state court judgment. See Tal v. Hogan, 453 F.3d 1244, 1256 (10th Cir.
2006).
Here, all of Mr. Lemay’s claims arise from the same nucleus of common fact—Wells
Fargo’s foreclosure on his property. A judgment of foreclosure was entered by the Washington
County District Court on August 4, 2016, [Doc. No. 6-1, p. 4], months before this action was
filed. Now, in one form or another, Mr. Lemay effectively seeks to “invalidate the foreclosure
judgment.” See Le Mar v. Midfirst Bank, Civ. No. 15-cv-1988 (KM), 2016 WL 869016, at *6
(D.N.J. Mar. 7, 2016). At a minimum, Mr. Lemay’s due process, fraud, and perjury claims
“implicate[ ] the validity of the procedures leading to the foreclosure, as well as the foreclosure
proceeding itself.” See id. Consequently, they are barred. 2

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Admittedly, Rooker-Feldman does not apply to claims against non-parties to the underlying
state court proceedings. See Lance v. Dennis, 546 U.S. 459, 465 (2006); Mo’s Express, LLC v.
Sopkin, 441 F.3d 1229, 1234–35 (10th Cir. 2006). But that does not mean the claims brought
against Davis or Wells Fargo Home Mortgage survive. Here, the complaint’s lack of specific
allegations against Davis and Wells Fargo Home Mortgage does not comport with Fed. R. Civ.
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IV. Compulsory Counterclaim Rule
Any remaining claims against Wells Fargo, N.A., are barred by Oklahoma’s compulsory
counterclaim rule. Okla. Stat. tit. 12, § 2013(A) requires a party assert any counterclaim that
“arises out of the transaction or occurrence that is the subject matter of” the complaint. The
failure to do so bars any later action on such claims. See Valley View Angus Ranch, Inc. v. Duke
Energy Field Servs., Inc., 497 F.3d 1096, 1103 (10th Cir. 2007) (citing Okla. Gas & Elec. Co. v.
Dist. Ct., Fifteenth Jud. Dist., Cherokee Cty., 784 P.2d 61, 64 (Okla. 1989)). A claim and
counterclaim are transactionally related if they: (1) implicate common issues of law or fact; (2)
are supported or refuted by substantially the same evidence; (3) are logically connected; and (4)
would raise res judicata issues in a subsequent suit on the counterclaim. See Fox v. Maulding,
112 F.3d 453, 456 (10th Cir. 1997).
Here, Mr. Lemay’s claims spring from the same issues underlying the foreclosure
action—specifically, the issuance and terms of Mr. Lemay’s loan obligation; Mr. Lemay’s
compliance with those obligations; and the ultimate foreclosure on Mr. Lemay’s property. To
that end, substantially the same evidence supports the claims in both actions, which are logically
related as a matter of fact and law. Moreover—at least with respect to Wells Fargo Bank,
N.A.—res judicata bars Mr. Lemay’s claims. In the state court foreclosure action, Mr. Lemay
challenged the validity of the note, mortgage, and foreclosure process in nearly a dozen filings.

P. 8. “It is not the sheer length of [Mr. Lemay’s] filing, the number of paragraphs, or the number
of claims that triggers the Rule 8 violation. Rather, the culprit is [Mr. Lemay’s] failure to
connect his . . . claims to the [c]omplaint’s . . . factual allegations.” See Hart v. Salois, 605 Fed.
App’x 694, 701 (10th Cir. 2015). Mr. Lemay’s “multiple collective allegations against the
defendants and his corresponding failure to identify each individual defendant’s culpable actions
only exacerbated this significant deficiency.” See id. Put simply, it is not defendants’ burden “to
‘piece’ together the plaintiff[’]s complaint.” See Glenn v. First Nat’l Bank in Grand Junction,
868 F.2d 368, 371 (10th Cir. 1989). Accordingly, any claims alleged against Davis or Wells
Fargo are dismissed for failure to comply with Rule 8.
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[Doc. No. 6-1]. He may not do so again on a different basis. See Carris v. John R. Thomas
Assoc., P.C., 896 P.2d 522, 527 (Okla. 1995). Both the doctrine of claim preclusion and the
compulsory counterclaim rule are “designed to prevent piecemeal litigation.” See Miller v.
Miller, 956 P.2d 887, 896 (Okla. 1998); McDaneld v. Lynn Hickey Dodge, Inc., 979 P.2d 252,
256 (Okla. 1999). Thus, any claims asserted against Wells Fargo, N.A. not precluded by the
Rooker-Feldman doctrine are barred by Oklahoma’s compulsory counterclaim rule.
WHEREFORE, to the Motion to Dismiss [Doc. No. 6] of defendant Brett Davis and the
Motion to Dismiss [Doc. No. 8] of defendants Wells Fargo Bank, N.A., and Wells Fargo Home
Mortgage are granted. 3
IT IS SO ORDERED this 24th day of February.

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Because dismissal is warranted, the court need not address other arguments raised in
defendants’ motions.
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