McZeal et al v. Deutsche Bank National Trust Company et al

Filing 14

ORDER GRANTING 3 Motion to Dismiss; GRANTING 6 Corrected Motion to Dismiss ; GRANTING 7 Motion to Dismiss ; GRANTING 8 Motion to Dismiss for Lack of Jurisdiction ; GRANTING 9 Motion to Dismiss for Failure to State a Claim; GRANTING 11 Motion to Dismiss ; GRANTING 12 Motion to Dismiss. Signed by Judge Sam Sparks. (ml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

ZOI6JUN-7 PM 2:21

ALFRED McZEAL et at.,

Plaintiffs,
Case No. A-16-CA-430-SS

-vs-

DEUTSCHE BANK NATIONAL

TRUST

COMPANY et al.,

Defendants.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and
specifically Defendant Ocwen Loan Servicing, LLC's Motion to Dismiss [#3]; Defendant Liberty
Bank & Trust Company's Corrected Motion to Dismiss [#6] the Motion to Dismiss Pursuant to
1;

Federal Rule of Civil Procedure 12(b)(6) by Defendants Mackie Wolf Zientz & Mann, P.C., L.

Keller Mackie, Brandon B. Wolf;, Michael W. Zientz, and Leslie N. Mann [#7]; Defendants
MidSouth Bank, N.A., Jay L. Angelle, and SulmeyerKupetz's Motion to Dismiss with Prejudice

Pursuant to Rule 12(b)(6) [#9]; the Motion to Dismiss Pursuant to Federal Rule of Civil Procedure
1

2(b)(6) by Defendants JPMorgan Chase Bank, N.A. and EMC Mortgage LLC [#11]; and Defendant

Wells Fargo Bank, N.A.'s Motion to Dismiss [#12]. Plaintiffs have not responded to any of these
motions. Having reviewed the documents, the governing law, and the file as a whole, the Court
enters the following opinion and orders GRANTiNG the motions to dismiss.

Given this corrected motion, Defendant Liberty Bank & Trust Company's Motion to Dismiss [#4] is
DISMISSED as moot.

/

Background
Plaintiffs Alfred McZeal, Frederic Gladle, Barbara Gladle, J. Lydia Hemandez, Eutimio C.
Hernandez, Lofton Ryan Burns, Soledad Solano, Diemetrio Loya, and Jose Solano, all proceeding

pro Se, purport to bring a nationwide class action against thirty defendants, including various national
banks, mortgage lenders, mortgage loan servicers, law firms, and

lawyers.2

Their sprawling,

conclusory, and often incoherent complaint sets forth over twenty varying types of claims against

the thirty defendants, including: securities fraud; civil rights and constitutional violations; violations

of the Racketeer Influenced and Corrupt Organizations Act (RICO), Fair Housing Act, Real Estate
Settlement Procedures Act (RESPA), and a variety of consumer protection statutes; breach of
contract; trespass; conspiracy; and others.

Defendants Ocwen Loan Servicing, Liberty Bank & Trust Company, Mackie Wolf Zientz
& Mann, P.C., L. Keller Mackie, Brandon B. Wolf, Michael W. Zientz, Leslie N. Mann, MidSouth

Bank, N.A., Jay L. Angelle, SulmeyerKupetz, Elissa D. Miller, JPMorgan Chase Bank, N.A., EMC

Mortgage LLC, and Wells Fargo Bank, N.A., have all moved to dismiss the complaint for failure to
state a claim for relief and, in several cases, for lack of personal jurisdiction and failure of service

of process. Having reviewed the complaint, and considering Plaintiffs' failure to respond to any of
the six outstanding motions to dismiss, the Court finds dismissal of this lawsuit in its entirety is

warranted.

Plaintiffs also name the United States of America as a party plaintiff. See Compl. [#11 at 1. The pro se
Plaintiffs are prohibited from representing the interests of the United States. Cf Jones v. The Park at Lakeside
Apartments, 2008 WL 4820083, at *1_2 (S.D. Tex. Nov. 5, 2008) (citing decisions from the Ninth, Seventh, Eleventh,
Second, and Eighth Circuits in support of its conclusion apro se relator cannot prosecute a qui tam action on behalf of
the United States). The United States of America is not a proper party to this action, and is DiSMISSED.
2

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Analysis
I.

Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain "a short and plain

statement of the claim showing that the pleader is entitled to relief"

FED.

R.

CIV. P.

8(a)(2). A

motion under Federal Rule of Civil Procedure 12(b)(6) asks a court to dismiss a complaint for
"failure to state a claim upon which relief can be granted."

FED. R.

Civ. P. 12(b)(6). The plaintiff

must plead sufficient facts to state a claim for relief that is facially plausible. Ashcroft v. Iqbal, 556

U.s. 662, 678 (2009); Bell At!. Corp.

v.

Twombly, 550 U.S. 544, 570 (2007). "A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Iqbal, 566 U.S. at 678. Although
a plaintiffs factual allegations need not establish that the defendant is probably liable, they must

establish more than a "sheer possibility" that a defendant has acted unlawfully. Id. Determining

plausibility is a "context-specific task," and must be performed in light of a court's "judicial
experience and common sense." Id. at 679.
In deciding a motion to dismiss under Rule 1 2(b)(6), a court generally accepts as true all
factual allegations contained within the complaint.

Leatherman

v.

Tarrant Cly. Narcotics

Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). However, a court is not bound to
accept legal conclusions couched as factual allegations. Papasan

v.

A/lain, 478 U.S. 265, 286

(1986). Although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff

must plead "specific facts, not mere conclusory allegations." Tuchman v. DSC Commc 'ns Corp.,
14 F.3d 1061, 1067 (5th Cir. 1994). In deciding a motion to dismiss, courts may consider the

complaint, as well as other sources such as documents incorporated into the complaint by reference,
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and matters of which a court may take judicial notice. Tellabs, Inc.

v.

Makor Issues & Rights, Ltd.,

551 U.S. 308, 322 (2007).

II.

Application
Given the Plaintiffs' failure to respond to any of the motions to dismiss, the Court GRANTS

all of the motions as unopposed. See Local Rule CV-7(e)(2). Alternatively, the Court briefly turns

to the merits of the motions.

Plaintiffs' complaint fails to state a claim for relief against any of the defendants. The sole
factual allegation in the 75-page complaint is the "DESCRIPTION OF PROPERTIES/LOCATION"

giving the addresses of Plaintiffs' homes in Texas, Louisiana, and California; the remainder of the
document is a mishmash of conclusory, repetitious, and rather manic accusations frequently

underlined, italicized, and printed in bold type ofvarying sizes. Markedly absent from the complaint
are any facts whatsoever describing the underlying mortgage transactions and eventual foreclosures

which are presumably the subject of this lawsuit. Rather, the complaint is replete with wholly

conclusory statements like the following (sic throughout):
The above named Defendants conspired among themselves, had a 'meeting of the
minds', an agreed to conduct, and did conduct an insidiousfraud campail!n against
the plaintiff and the subject real property identifIed on Page 1 and Exhibit A ofthis
complaint,3 which said fraud campaign consisted of highly illegal criminal methods,
and unlawful transfers which includes, methods of forery, and fraud

The place where this fraud occurred was at the defendants business offices,
offices of their agents, in the country records office, us court houses, and in the
offices and sweatshops of third party ROBO-SIGNERS.
Specifically, defendants unlawful and deceitful acts constitute violations of Section
10 [of the Securities Exchange Act] "Manipulative and Deceptive Devices"

While the complaint frequently makes reference to various numbered and lettered exhibits, no exhibits were
attached to the complaint when filed. See Compl. [#1].

whereby "It shall be unlawful for any person directly or indirectly, by the use of any
means or instrumentality of interstate commerce or of the mails, or any facility of any
national securities exchange - To effect a short sale, or to use or employ any stop-loss
order in connectoin with the purchase of sale, or any security registered, on a national
securities exchange, in contravention of such rules and regulations as the
Commission may prescribe as necessary or appropriate in the public interest or for
the protection of investors."
Compl. [#1] at 17, 51.

Similarly, pages 19 through 27 of the Complaint, all of which purport to set forth "Specific

Allegations" against the defendants, are nine copies of the same twelve haphazard legal conclusions
with different defendants' names at the top of each page.
allegations are entirely conclusory and at times nonsensical.

See

id.

See id.

at 19-27. Plaintiffs' RICO
at 40-45 ("As setout in the

introductory of this complaint, is is specifically alleged herein that the named defendants and
ofthem individually

are corrupt persons and unlawful enterprises.... The nature of the association

between the RICO defendant and the RICO Enterprises is such that the RICO defendant utilize the
Enterprise to steal

. . .

engage in a great deal
."). Further, throughout the complaint, Plaintiffs

of

impassioned yet oddly retrograde name-calling, referring to the Defendants as "evil," "diabolical,"

"deceitful," "Dirty Low Down," "malicious," and "despicable."
Plaintiffs' allegations contain virtually no factual matter, let alone factual matter sufficient
for
to raise a right to relief above the speculative level. Their complaint plainly fails to state a claim

relief and is subject to dismissal in its entirety.
Finally, the Court notes that a number of these plaintiffs are well-known vexatious filers.

This Court sanctioned Plaintiffs Frederic and Barbara Gladle in April 2015, finding they "engaged
in bad-faith conduct designed to intentionally delay the adjudication of the Rule 736 foreclosure

action" on their propertythe same property again placed in issue here. Order of Apr. 2, 2015
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[#10], Deutche Bank Nat '1 Trust Co.

v.

Gladle et al., Case No. A- 15-CA-i 6-SS (W.D. Tex. 2015).

The Central District of California has declared Plaintiffs Lydia and Eutimio Hernandez vexatious

litigants and barred them from filing any new litigation in that District without permission. See
Wells Fargo Mot. Dismiss [#12-1] Ex. A (C.D. Cal. Order). Finally, the Southern District of Texas

has barred Plaintiff McZeal from filing suit therein without permission from the Chief Judge,

pointing out that since 1997, McZeal has "abus[ed] the courts to effect vexatious, irritable and
expensive litigation upon opposing parties" via "massive" complaints "alleging myriad causes of

action" that are "factuallyunsupported." Order ofMay 31,2007 [#11 at 1-2, 19, Washington Mutual
Bank, FA v. Merlet et al., Civil Action No. H-06-897 (S.D. Tex. 2007).

Reasoning the complaint was "simply too incoherent, bizarre, and unfounded to infer that any
further amendment would provide facts sufficient to state a claim," the Eastern District of Louisiana

recently dismissed with prejudice an action filed by McZeal raising RICO and other claims against
a host of defendants. McZealv. .J.P. Morgan ChaseBank, NA, Civil ActionNo. 13-6754, 2014 WL

3166715, at *6_9 (E.D. La. July 7, 2014). The Court finds it appropriate to follow suit and dismiss
this case with prejudice.
Consequently, the Court need not reach the defendants' alternative arguments.

Conclusion
Accordingly:
IT IS ORDERED that Defendant Ocwen Loan Servicing, LLC's Motion to Dismiss
[#3] is GRANTED;

IT IS FURTHER ORDERED that Defendant Liberty Bank & Trust Company's

Corrected Motion to Dismiss [#6] is GRANTED;

IT IS FURTHER ORDERED that the Motion to Dismiss Pursuant to Federal Rule

of Civil Procedure 12(b)(6) by Defendants Mackie Wolf Zientz & Mann, P.C., L. Keller
Mackie, Brandon B. Wolf, Michael W. Zientz, and Leslie N. Mann [#7] is GRANTED;
IT IS FURTHER ORDERED that Defendant Elissa D. Miller's Motion to Dismiss

with Prejudice for Lack of Personal Jurisdiction Pursuant to Rule 12(b)(2) & Joinder in
Motions to Dismiss Pursuant to Rule 12(b)(6) [#8] is GRANTED;
IT IS FURTHER ORDERED that Defendants MidSouth Bank, N.A., Jay L. Angelle,

and SulmeyerKupetz's Motion to Dismiss with Prejudice Pursuant to Rule 12(b)(6) [#9] is

GRANTED;
IT IS FURTHER ORDERED that the Motion to Dismiss Pursuant to Federal Rule

of Civil Procedure 12(b)(6) by Defendants JPMorgan Chase Bank, N.A. and EMC Mortgage
LLC [#11] is GRANTED;
IT IS FURTHER ORDERED that Defendant Wells Fargo Bank, N.A.'s Motion to

Dismiss [#12] is GRANTED;
IT IS FURTHER ORDERED that the above-styled and numbered cause is

DISMISSED WITH PREJUDICE; and
IT IS FINALLY ORDERED that the filing of any further meritless litigation in this

judicial district concerning the properties placed in issue by this suit will result in severe
sanctions to the responsible plaintiffs.
SIGNED this the '7

dayof June 2016.

SAM SPARKS
UNITED STATES DISTRICT JUDGE
430

rntds ord

bafim

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