Duke et al v. Wells Fargo Bank N.A. Bank N.A. et al

Filing 44

Memorandum Opinion and Order... The court ORDERS that the motions to dismiss be, and are hereby, granted, and that plaintiffs' claims against Judge Fite, Codilis, Barrett Daffin, and Wells Fargo be, and are hereby, dismissed with prejudice. The court determines that there is no just reason for delay in, and hereby directs, entry of final judgment as to the dismissal of the claims against these defendants. (Ordered by Judge John McBryde on 3/2/2018) (wxc)

IN THE UNITED STATES DISTRICT CO RT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
KEISHA DUKE, ET AL.,
Plaintiffs,

vs.

§
§
§
§
§
§

MAR -·? 20!a

I

,I

NO. 4:17-CV-987-A

WELLS FARGO BANK N.A. BANK N.A.,§
ET AL.,
§
§

Defendants.

§

MEMORANDUM OPINION AND ORDER
Came on for consideration the motions of (1) defendants
Judge Fite and Beverly McDonald (together,

"Judge Fite"),

(2)Barrett Daffin Frappier Turner & Engel, LLP ("Barrett
Daffin"),

(3) Codilis & Stawiarski, P.C., and Sarah Cox

(together, "Codilis"), and (4) Wells Fargo Bank, N.A.

("Wells

Fargo") to dismiss. Plaintiffs, Keisha Duke and Keenan Duke, have
failed to respond to the motions, which are ripe for ruling. The
court, having considered the motions, the record, and applicable
authorities, finds that the motions should be granted.
I.

Background
On December 12, 2017, plaintiffs filed a document titled
"Claim" that has been docketed as their complaint. Doc. 1 1. The
complaint itself comprises seven pages and has 115 pages of

'The "Doc.

"reference is to the number of the item on the docket in this action.

exhibits attached.' The causes of action are identified as
trespass, uttering a forged instrument, fraud, conspiracy against
rights, unjust enrichment, mail fraud, and falsifying documents.
The "facts of the case" section of the document alleges: On
August 9, 2006, Keenan and Claire Duke acquired property at 5924
Walden Trail, Arlington, Texas. In 2012, Keenan fell ill and
transferred full ownership of the property to Keisha (who calls
herself "Prosecutor"). Keenan and Claire have no record of having
received a loan from Wells Fargo, so they stopped paying. Wells
Fargo identified itself as servicer and owner of a note and then,
as debt collector, threatened to foreclose in May 2014. Wells
Fargo provided a a copy of a Texas Home Equity Note and Texas
Equity Deed of Trust, but plaintiffs do not believe these are
valid documents. Barrett Daffin, as debt collector, sent a notice
of foreclosure signed by Felecia Clark. Fay Servicing sent a
notice claiming to be the new servicer. Judge Fite sent materials
saying that it had been hired to market the property. Codilis
sent a notice to vacate the property, stating that its client had
purchased the property at foreclosure sale on November 7, 2017.
Doc. 1.

2

The court is proceeding as though both plaintiffs are proper parties, although only plaintiff
Keisha Duke has signed any of the documents filed in this action. A prose party can act only on his or
her own behalf. Rodgers v. Lancaster Police & Fire Dep't, 819 F.3d 205, 210 & n. 11 (5th Cir. 2016).
2

Plaintiffs seek to recover $40,787,800.00 and other
equitable relief. Doc. 1 at 7.
II.
Grounds of the Motions
Judge Fite urges that plaintiffs have failed to allege any
facts to support a cause of action against it.
Barrett Daffin and Codilis likewise urge that plaintiffs
have failed to allege sufficient facts to state a plausible cause
of action against them. They additionally urge that they are
entitled to attorney immunity as they have been sued solely as
counsel representing clients.
Wells Fargo urges a number of grounds in support of its
motion, among them that plaintiffs have failed to allege
sufficient facts to state a claim against it and also that
plaintiffs' claims are barred by res judicata based on an earlier
action before the court.
III.
Applicable Legal Standards
A.

Pleading
Rule 8(a) (2) of the Federal Rules of Civil Procedure

provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"

3

Fed. R. Civ. P. S(a) (2),

•in order to give the defendant fair

notice of what the claim is and the grounds upon which it rests,"
Bell Atl. Coro. v. Twombly, 550 U.S. 544, 555 (2007)
quotation marks and ellipsis omitted) .

(internal

Although a complaint need

not contain detailed factual allegations, the "showing•
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
of action.

Twombly, 550 U.S. at 555 & n.3.

Thus, while a court

must accept all of the factual allegations in the complaint as
true,

it need not credit bare legal conclusions that are

unsupported by any factual underpinnings.
556 U.S. 662, 679 (2009)

See Ashcroft v. Iqbal,

("While legal conclusions can provide

the framework of a complaint, they must be supported by factual
allegations. ") .
Moreover, to survive a motion to dismiss for failure to
state a claim, the facts pleaded must allow the court to infer
that the plaintiff's right to relief is plausible.
U.S. at 678.

Iqbal,

556

To allege a plausible right to relief, the facts

pleaded must suggest liability; allegations that are merely
consistent with unlawful conduct are insufficient. Id. In other
words, where the facts pleaded do no more than permit the court
to infer the possibility of misconduct, the complaint has not
shown that the pleader is entitled to relief. Id. at 679.

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"Determining whether a complaint states a plausible claim for
relief .

[is] a context-specific task that requires the

reviewing court to draw on its judicial experience and common
sense."

Id.

As the Fifth Circuit has explained:

"Where the complaint is

devoid of facts that would put the defendant on notice as to what
conduct supports the claims, the complaint fails to satisfy the
requirement of notice pleading." Anderson v. U.S. Dep't of
Housing

&

Urban Dev., 554 F.3d 525, 528 (5th Cir. 2008). In sum,

"a complaint must do more than name laws that may have been
violated by the defendant; it must also allege facts regarding
what conduct violated those laws. In other words, a complaint
must put the defendant on notice as to what conduct is being
called for defense in a court of law." Id. at 528-29. Further,
the complaint must specify the acts of the defendants
individually, not collectively, to meet the pleading standards of
Rule 8(a). See Griggs v. State Farm Lloyds, 181 F.3d 694, 699
(5th Cir. 1999); see also Searcy v. Knight (In re Am. Int'l
Refinery), 402 B.R. 728, 738

(Bankr. W.D. La. 2008).

Fraud claims are subject to the heightened pleading
requirements of Rule 9(b) of the Federal Rules of Civil Procedure
and must be pleaded with particularity. Sullivan v. Lear Energy,
L.L.C.,

600 F.3d 542, 550-51 (5th Cir. 2010). Thus, the plaintiff

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must "specify the statements contended to be fraudulent,

identify

the speaker, state when and where the statements were made, and
explain why the statements were fraudulent." Id., at 551. See
Benchmark Elecs., Inc. v. J.M Huber Corp., 343 F.3d 719, 724

(5th

Cir. 2003).
In considering a motion to dismiss for failure to state a
claim, the court may consider documents attached to the motion if
they are referred to in the plaintiff's complaint and are central
to the plaintiff's claims. Scanlan v. Tex. A&M Univ.,
533, 536

343 F.3d

(5th Cir. 2003). The court may also refer to matters of

public record. Davis v. Bayless, 70 F.3d 367, 372 n.3
1995); Cinel v. Connick, 15 F.3d 1338, 1343 n.6

(5th Cir.

(5th Cir. 1994)

This includes taking notice of pending judicial proceedings.
Patterson v. Mobil Oil Corp., 335 F.3d 476, 481 n.l (5th Cir.
2003). And, it includes taking notice of governmental websites.
Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457
2005); Coleman v. Dretke, 409 F. 3d 665,
B.

667

(5th Cir.

(5th Cir. 2005).

Res Judicata
Dismissal under Rule 12(b) (6) on res judicata grounds is

appropriate when the elements of res judicata are apparent on the
face of the pleadings. Dean v. Mississippi Bd. of Bar Admissions,
394 F. App'x 172, 175 (5th Cir. 2010). In making such a ruling,
"[t)he court may consider documents attached to or incorporated

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in the complaint and matters of which judicial notice may be
taken."

United States ex rel. Willard v. Humana Health Plan of

Tex. Inc., 336 F.3d 375, 379 (5th Cir. 2003). In addition, the
court may take judicial notice of the record in a prior related
proceeding over which it presided, and may dismiss a complaint
sua sponte under principles of res judicata.
California, 530 U.S. 392, 412 (2000)

Arizona v.

(" [I]f a court is on notice

that it has previously decided the issue presented, the court may
dismiss the action sua sponte, even though the defense has not
been raised.") .
IV.
Analysis
The sole reference to Judge Fite in the complaint is at page
5 where plaintiffs allege: "Judge Fite deposits material signed
by Beverly McDonald on November 10, 2017 claiming PROF-2013-S3
LEGAL TITLE TRUST IV as client.

(EXHIBIT P) . " Doc. 1 at 5.

Exhibit P, in turn, consists of six form pages giving notice that
Judge Fite has been retained as real estate agent following
foreclosure and that plaintiffs might be entitled to a relocation
assistance settlement offer. Id. at 114-19. There are simply no
facts pleaded that would support any cause of action against
Judge Fite.

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The sole reference to Codilis in the complaint is at page 5
where plaintiffs allege:

"Codilis & Stawiarski, P.C. deposits

material signed by Sarah COX November 14, 2017 claiming PROF2013-S3 LEGAL TITLE TRUST IV (EXHIBIT Q) ." Doc. 1 at 5. Exhibit
Q, in turn, is a two-page letter giving notice to vacate the
property. Id. at 121-22. These facts are insufficient to state
any cause of action against Codilis.
The complaint does contain several references to Barrett
Daffin as follows:
[Barrett
claiming
servicer
contract

Daffin]; a debt collector; deposits material
to be agent of [Wells Fargo] is the owner and
of a loan and to have custody of the original
securing their rights in a Complaint May 2016.

[Barrett Daffin]; a Debt Collector; deposits material
dated November 10, 2016 signed by Felecia Clark that
threatens to sell my property on December 6, 2016 for
their own benefit or [Wells Fargo] without mention of
PRMF. (EXHIBIT I)

[Barrett Daffin]; a Debt Collector; deposits material
signed by Felecia Clark that threatens to sell my
property on July 4, 2017 for their own benefit or PROF2013-S3 LEGAL TITLE TRUST IV as agent or conspiring
with Fay Servicing (EXHIBIT N)

[Barrett Daffin] again deposits materials signed by
Felecia Clark which threatens to sell my property
November 6, 2017. (EXHIBIT 0)

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Doc. 1 at 4-5. Exhibit I is a notice of substitute trustee's sale
to take place on December 6, 2016. Id. at 75. Exhibit N is a
notice of substitute trustee's sale to take place on November 7,
2017. Id. at 105. Exhibits I and N are addressed to Claire Duke,
who is not a party to this action. Id. at 74, 104. And, Exhibit O
is a notice of substitute trustee's sale to take place on July 4,
2017.

Id. at 110. That sale did not take place. The facts alleged

do not support any cause of action against Barrett Daffin.
As a general rule, attorneys are immune from civil liability
to non-clients for actions taken in connection with representing
a client. Cantey Hanger, L.L.P. v. Byrd, 467 S.W.3d 477, 481
(Tex. 2015) . Attorneys have a right to practice their profession
and to advise their clients without making themselves liable for
damages. Kruegel v. Murphy, 126 S.W. 343, 345 (Tex. Civ. App.-Dallas 1910, writ ref'd). Attorneys participating in non-judicial
foreclosure are immune from suits such as this one. Campbell v.
Mortgage Electronic Registration Sys., Inc., No. 03-11-00429,
2012 WL 1839357, at *5-6 (Tex. App.--Austin May 18, 2012, pet.
denied). See Troice v. Proskauer Rose, L.L.P., 816 F.3d 348 (5th
Cir. 2016) (attorney immunity under Texas law is true immunity
from suit) . The record reflects that Codilis and Barrett Daffin
were acting on behalf of clients in sending the communications
about which plaintiffs complain. Plaintiffs have not pleaded any

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facts to suggest that these attorney defendants are not entitled
to such immunity.
Finally, Wells Fargo is mentioned throughout the complaint.
It is apparent that plaintiffs take the position that Wells Fargo
did not have any rights in the property, although the documents
attached to the complaint and documents submitted by Wells Fargo
of which the court takes judicial notice show that Wells Fargo is
the successor in interest to World Savings Bank, FSB, the
original lender. Further, on November 29, 2016, Wells Fargo
assigned the deed of trust at issue to Prof-2013-S3 Legal Title
Trust IV, by U.S. Bank National Association, as Legal Title
Trustee. Plaintiffs allegations are conclusory and nonsensical.
They appear to allege that no loan was made to Keenan Duke, yet
they have made thousands of dollars of payments and admit that
they are in default. They do not allege facts sufficient to state
a plausible claim against Wells Fargo. See Doc. 33 at 12-22 for a
thorough discussion of the reasons why plaintiffs' claims fail.
Under Fifth Circuit law,

"res judicata []

is the •venerable

legal canon' that insures the finality of judgments and thereby
conserves judicial resources and protects litigants from multiple
lawsuits.

Procter & Gamble Co. v. Amway Corp.,

(5th Cir. 2004)

376 F.3d 496, 499

(quoting United States v. Shanbaum, 10 F.3d 305,

310 (5th Cir. 1994)).

The doctrine precludes the relitigation of

10

claims which have been fully adjudicated or arise from the same
subject matter, and that could have been litigated in the prior
action.

Nilsen v. City of Moss Point, 701 F.2d 556, 560 (5th

Cir. 1983).

Under res judicata, a prior judgment bars a

subsequent judgment when (1) the parties are identical or in
privity;

(2) the judgment in the prior action was rendered by a

court of competent jurisdiction;

(3) the prior action was

concluded by a final judgment on the merits; and (4) the same
claim or cause of action was involved in both actions.

Test

Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir.
2005).
In determining whether the same claims or causes of action
are brought, the Fifth Circuit has adopted the transactional
test,

in which all claims arising from a "common nucleus of

operative facts" and could have been brought in the first
lawsuit, are barred by res judicata.
at 499.

Procter & Gamble, 376 F.3d

In Nilsen, the court explained:

[I]t is black-letter law that res judicata, by contrast
to narrower doctrines of issue preclusion, bars all
claims that were or could have been advanced in support
of the cause of action on the occasion of its former
adjudication
. not merely those that were
adjudicated.
701 F.2d at 560 (emphasis in original).
913 F.2d 1138, 1144

(5th Cir. 1990)

See also Matter of Howe,

(" [T]he critical issue is not

the relief requested or the theory asserted but whether plaintiff
11

bases the two actions on the same nucleus of operative facts.");
Petro-Hunt, LLC v. United States, 365 F.3d 385, 395-96 (5th Cir.
2004)

(prior judgment's preclusive effect extends to all rights

of plaintiff "with respect to all or any part of the transaction,
or series of connected transactions, out of which the [original)
action arose.") .
In this case, all four elements of res judicata are met as
to the claims of Keisha Duke ("Keisha") .

First, Keisha has

brought an action against the same defendant, Wells Fargo, in two
lawsuits.

Second, the judgment in the prior action, No. 4:17-CV-

590-A, was rendered by this court, which is a court of competent
jurisdiction.

Third, the prior action was concluded by a final

judgment on the merits, as all claims and causes of action in the
prior action were dismissed with prejudice for failure to state a
claim upon which relief might be granted.

Fourth, the claims and

causes of action raised by Keisha in both actions were related to
her interest in the same property and revolved around her belief
that Wells Fargo had acted wrongfully in relation to the lien on
the property and foreclose of that lien on the property.

Thus,

all of Keisha's claims in the instant action could have been
brought in the prior action, and must be dismissed.

3

3

As Wells Fargo notes, it appears that Keenan Duke is in privily with Keisha and that she has
(continued ... )

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v.
Order
For the reasons discussed herein,
The court ORDERS that the motions to dismiss be, and are
hereby, granted, and that plaintiffs' claims against Judge Fite,
Codilis, Barrett Daffin, and Wells Fargo be, and are hereby,
dismissed with prejudice.
The court determines that there is no just reason for delay
in, and hereby directs, entry of final judgment as to the
dismissal of the claims against these defendants.
SIGNED March 2, 2018.

3

( ... continued)
been purporting to represent his interests throughout the proceedings in reference to the property.
Nevertheless, the court need not determine if Keenan's claims are barred by res judicata because he
simply has not stated a plausible claim.

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