Davis v. Wells Fargo NA et al

Filing 20

REPORT AND RECOMMENDATION: The undersigned recommends that Defendants' Motions to Dismiss be GRANTED. Signed by Magistrate Judge E. Clifton Knowles on 7/17/2013. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JANICE A. DAVIS,

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Plaintiff,

v.

JOHN A. BARNEY,
WILSON & ASSOCIATES, PLLC,
Defendants.

CASE NO. 3:12-cv-1181
JUDGE TRAUGER / KNOWLES

REPORT AND RECOMMENDATION
I. Introduction and Background
This matter is before the Court upon two Motions to Dismiss: one filed by Defendant
John A. Barney, and the other, filed by Defendant Wilson & Associates, PLLC (hereinafter
“Defendants”). Docket Nos. 16, 18. Defendants’ Motions are filed pursuant to Fed. R. Civ. P.
12(b)(6). Id. In support of their Motions, Defendants have filed accompanying Memoranda of
Law. Docket Nos. 17, 19.
Plaintiff has not responded to either Motion.
This is a pro se, in forma pauperis action, regarding foreclosure activities concerning
Plaintiff’s real property located at 1005 9th Avenue South, Nashville, Davidson County,
Tennessee. See Docket No. 1 and attachments thereto. Plaintiff sues numerous Defendants
seeking injunctive relief against their “illegal actions” and against subsequent sales of 1005 9th

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Avenue.1 Id. Plaintiff also seeks compensatory damages, attorney’s fees, and that the court
grant her “clear title” to her home. Id.
Defendants John A. Barney and Wilson & Associates, PLLC, filed the instant Motions to
Dismiss and accompanying Memoranda of Law on June 9 and June 10, 2013, respectively.
Docket Nos. 16, 18. Defendants argue that Plaintiff has failed to state a claim against them
because she fails to allege any specific wrongdoing by Defendants. Docket Nos. 17, 19.
Specifically, Defendants argue that “the only allegation the Plaintiff makes against the
undersigned is that [they] represented Wells Fargo in state court proceedings.” Id.
For the reasons set forth below, the undersigned recommends that Defendants’ Motion to
Dismiss be GRANTED.
II. Facts2
A. Background Contextual “Facts”
In 2006, Plaintiff purchased a house located at 1005 9th Avenue. She obtained a
mortgage on the property from WMC Mortgage. WMC Mortgage was later sued in a class
action suit brought by first time, minority home buyers in San Francisco, California. The parties
in the class action reached a settlement agreement. Plaintiff was awarded damages in the amount
of $145,000, which she never received because Wells Fargo kept the award. Even though the
award was enough to pay off Plaintiff’s mortgage, Wells Fargo initiated foreclosure proceedings
on Plaintiff’s home. Plaintiff then attempted to enter a loan modification program through

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Of the named Defendants, only John Barney and Wilson & Associates are parties to the
instant Motions. Accordingly, “Defendants,” as used throughout the remainder of this Report
and Recommendation, references only Mr. Barney and Wilson & Associates.
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Unless otherwise noted, the following “facts” are derived from Plaintiff’s Complaint.
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Housing and Urban Development, but was “blocked” by Wells Fargo. Wells Fargo then
“attempted” to sell Plaintiff’s home to Bank of America through Wilson & Associates in May of
2011.
Plaintiff brought an action against Wells Fargo, Saxon Mortgage, and WMC Mortgage,
in Chancery Court claiming that they wrongfully foreclosed on her home. Order Granting
Summ. J., 97th unnumbered page of Docket No. 1. Specifically, Plaintiff alleged that there was
not proper documentation transferring the deed to her property from WMC to Wells Fargo, and
therefore, that Wells Fargo did not have standing to initiate foreclosure proceedings. Pl.’s Resp.
to Def.’s Mem. in Supp. of Def.’s Mot. for Summ. J. 2, 72nd unnumbered page of Docket No. 1.
Plaintiff further alleged that even if there had been a valid transfer, WMC failed to notify her of
the transfer, leaving her unsure of her rights regarding the class action settlement agreement with
WMC. Id. at 76th unnumbered page of Docket No. 1.
Chancellor Carol McCoy granted summary judgment for Wells Fargo, Saxon Mortgage,
and WMC Mortgage, finding that:
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2.

3.

Wells Fargo gave proper notice of the Plaintiff’s default
and of the right to cure pursuant to the terns of the Deed of
Trust.
The foreclosure of the property was conducted properly in
that Plaintiff was given timely written notice of the
Substitute Trustee’s sale and the sale was properly
published in accordance with requirements of T.C.A. §355-117.
The Plaintiff has no private right of action for a loan
modification.

Order Granting Summ. J. 1, 97th unnumbered page of Docket No. 1.
Plaintiff then filed this suit against Wells Fargo, the Chancery Court for Davidson
County, Wilson & Associates, and John Barney. Docket No. 1. Plaintiff also indicated that she
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would like to add Chancellor McCoy as a defendant as well. Id. Upon initial review, Plaintiff’s
claims against the Chancery Court, Chancellor McCoy, and Wells Fargo were dismissed without
prejudice for lack of jurisdiction. Docket Nos. 5, 6.
B. “Facts” Pertaining to the Instant Defendants3
Plaintiff alleges that Wells Fargo “attempted” to sell Plaintiff’s home to Bank of America
through Wilson & Associates in May of 2011. Docket No. 1, 8th unnumbered page.
Plaintiff avers that:
The Attorney from Wilson and Associates on October 25, 2012
bragged and admitted that he had had the $145,000 proceeds from
the class action suit since 2006-2007, since they were sent to the
harmed parties. He also bragged and stated that after he took the
funds that were designated (to give me relief from their
descriminatory [sic] practices and which were to allow me to pay
off this bad mortgage) he pocketed the money and proceeded to
foreclose on my property for the non-payment of the mortgage. . . .
The attorney came back as a rebuttal bragging that after he took
the $145,000 to pay off a $123,500 (est) mortgage he kept the
remaining (est) $21,500 and proceed [sic] to foreclose on the
property, knowing he had intercepted the funds the government
had provided for me to cure the debt and he laughingly stated the
trail of misery he caused me by being forced to file bankruptcy to
stop the foreclosures he had created, while still sitting on the
funds.
Id. at 14th-15th unnumbered pages.
Plaintiff further avers that:
When we went to court in January of 2012 Circuit under Judge
Hamilton Gayden, I was sent a 50 page brief whic [sic] I presneted
[sic] to the court from an attorney Skipper Ray and the Wilson and

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Defendant Barney is an attorney licensed to practice law in the State of Tennessee
(Docket No. 17), while Defendant Wilson & Associates is a law firm with offices in the State of
Tennessee (Docket No. 19). Defendant Wilson & Associates represented Wells Fargo in the
Chancery Court action. Id.
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Associates attorney in court had not even seen the document. That
was when I questioned the origin of this continued attempt to take
my property. Ultimately, Judge Gayden consolidated the cases and
sent them up to Chancery and that is where we are now. Please
note that in all of these deliberations, my attorneys and I were
trying to locate the $145,000 from the class action suit with WMC
and in the hearing in December before the Honorable Carol
McCoy, she asked the same attorney, Mr. Barney “How did you
obtain Ms. Davis’ property and he said, “I securitized the Note” . .
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Id. at 17th unnumbered page.
Plaintiff also states, “had the attorney for Wells Fargo, Mr. Barney [not] been so arrogant
in letting me know that he had exacted this suffering on my life, I wouldn’t have known.” Id. at
18th and 19th unnumbered pages. She notes, “But looking back, my mortgage problems begn
[sic] when I signed the mortgage in July 2006, because that his the year the Wells Fargo attorney
bragged to have taken the $145,000 that would have automatically paid off my mortgage.” Id. at
19th unnumbered page.
III. Analysis
A. Standard of Review: Motion to Dismiss
Fed. R. Civ. P. 12(b)(6) provides that a claim may be dismissed for failure to state a
claim
upon which relief can be granted. In order to state a claim upon which relief can be granted, a
complaint must contain either direct or inferential allegations respecting all material elements to
sustain a recovery under some viable legal theory. Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir.
2005). Conclusory allegations or legal conclusions masquerading as factual allegations will not
suffice. Id. A complaint containing a statement of facts that merely creates a suspicion of a
legally cognizable right of action is insufficient. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955,

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1965 (2007). The “[f]actual allegations must be enough to raise a right to relief above the
speculative level”; they must “state a claim to relief that is plausible on its face.” Id. At 1965,
1974. See also, Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th
Cir. 2007).
Moreover, the United States Supreme Court has recently addressed the appropriate
standard that must be applied in considering a Motion to Dismiss for failure to state a claim. See
Ashcroft v. Iqbal, 129 S. Ct. 1937, 137 L. Ed. 2d 868 (2009). The Iqbal Court stated in part as
follows:
Two working principles underlie our decision in Twombly. First,
the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of the cause of action,
supported by mere conclusory statements, do not suffice . . . . Rule
8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior error, but it does not
unlock the doors of discovery for plaintiff armed with nothing
more than conclusions. Second, only a complaint that states a
plausible claim for relief survives a motion to dismiss . . . .
Determining whether a complaint states a plausible claim for relief
will, as the Court of Appeals observed, be a context-specific task
that requires the reviewing court to draw on its judicial experience
and common sense. . . . But where the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged - but it has not “show[n]” “that the pleader is entitled to relief.”
129 S.Ct. at 1949-1950, 173 L. Ed. 2d at 884 (citations omitted).
While the Court takes into account that the Plaintiff is pro se and is therefore held to a
less stringent standard, this does not “abrogate basic pleading requirements.” Jordan v. Koehler,
14 F.3d 601 (6th Cir. 1993); see also Wells v. Brown, 891 F.2d 591 (6th Cir.1989) (stating that
“trial and appellate courts should not have to guess at the nature of the claim asserted”).

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B. The Case at Bar
Plaintiff asserts her federal claims in this action under 42 U.S.C. §§ 1981 and 1982. In
order for Plaintiff’s § 1981 claim to survive Defendants’ Motions to Dismiss, Plaintiff’s
Complaint must allege facts that indicate that it is “plausible” that Defendants: (1) blocked some
contractual right of Plaintiff, and (2) the interference was racially motivated. See e.g., Williams
v. Richland County Children’s Services, 489 Fed.Appx. 848 (6th Cir. 2012). Similarly, § 1982
deals with racial discrimination in leasing or selling property; accordingly, a proper pleading
citing a violation of this statute therefore must allege discrimination. See e.g., Jones v. Alfred H.
Mayer Co., 392 U.S. 409 (1968).
Regarding Plaintiff’s § 1981 claim, Plaintiff does not submit that she had any type of
contractual relationship with either Defendant, or that either Defendant personally “blocked
some contractual right” of Plaintiff. Docket No. 1. Instead, she asserts that Defendants
represented Wells Fargo in the proceeding in Chancery Court, and that Defendant Barney
“bragged and admitted he had had the $145,000 proceeds from the class action suit,” “pocketed
the money and proceeded to foreclose” on her property, and “laughingly stated the trail of misery
he caused me.” Significantly, a critical element of both §1981 and §1982 is racially motivated
discrimination. Plaintiff alleges no facts suggesting either that Defendant Barney’s asserted
actions or Defendants’ decision to represent Wells Fargo was racially motivated. As Plaintiff
does not assert facts that give rise to a plausible inference that there was any type of contractual
relationship between herself and Defendants, nor does she assert that Defendants’ actions were
racially motivated, Plaintiff has failed to state a claim under either §§ 1981 or 1982.

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IV. Conclusion
For the foregoing reasons, the undersigned recommends that Defendants’ Motions to
Dismiss be GRANTED.4
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

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E. CLIFTON KNOWLES
United States Magistrate Judge

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Because the undersigned recommends granting Defendants’ Motions to Dismiss, this
court should decline to exercise pendent jurisdiction over Plaintiff’s state court claims.
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