Des Rochers v. Blucher et al
Filing
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REPORT AND RECOMMENDATIONS RE: 1 Complaint filed by The: Brian L. Des Rochers. The undersigned RECOMMENDS that the District Court DISMISS thiscase. ORDER GRANTING 2 Motion to Proceed in forma pauperis filed by The: Brian L. Des Rochers. Signed by Judge Andrew W. Austin. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
THE: BRIAN L. DES ROCHERS
V.
WILLIAM BLUCHER, et al.
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A-16-CV-556-LY
ORDER ON IN FORMA PAUPERIS STATUS AND REPORT AND
RECOMMENDATION ON THE MERITS OF THE CLAIMS
TO:
THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiff Brian L. Des Rochers’s (“Des Rochers”) Application to Proceed
In Forma Pauperis and Financial Affidavit in Support, along with her Complaint. Dkt. No. 2 at 1
and Dkt. No. 1 at 1. The District Court referred the above motions to the undersigned Magistrate
Judge for a determination pursuant to 28 U.S.C. § 636(b) and Rule 1(c) of Appendix C of the Local
Rules of the United States District Court for the Western District of Texas, Local Rules for the
Assignment of Duties to United States Magistrate Judges.
I. APPLICATION TO PROCEED IN FORMA PAUPERIS
After reviewing Plaintiff Brain L. Des Rochers’s Application to Proceed In Forma Pauperis,
the Court finds that he is indigent. Accordingly, the Court HEREBY GRANTS Des Rochers in
forma pauperis status and ORDERS his Complaint be filed without pre-payment of fees or costs
or giving security therefor pursuant to 28 U.S.C. § 1915(a)(1). This indigent status is granted subject
to a later determination that the action should be dismissed if the allegation of poverty is untrue or
the action is found frivolous or malicious pursuant to 28 U.S.C. § 1915(e). Des Rochers is further
advised that although he has been granted leave to proceed in forma pauperis, a Court may, in its
discretion, impose costs of court at the conclusion of this lawsuit, as in other cases. Moore v.
McDonald, 30 F.3d 616, 621 (5th Cir. 1994).
As stated below, this Court has conducted a § 1915(e) review of the claims made in Des
Rochers’s Complaint and is recommending his claims be dismissed under 28 U.S.C. § 1915(e).
Therefore, service upon the Defendants should be withheld pending the District Court’s review
of the recommendations made in this report. If the District Court declines to adopt the
recommendations, then service should be issued at that time upon the Defendants.
II. SECTION 1915(e) FRIVOLOUSNESS REVIEW
Because Des Rochers has been granted leave to proceed in forma pauperis, the Court is
required by standing order to review his Complaint under §1915(e)(2), which provides in relevant
part that “the court shall dismiss the case at any time if the court determines that . . . the action or
appeal “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii)
seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
“A complaint filed IFP may be dismissed as frivolous if it lacks an arguable basis in law or fact,”
Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995), and the claims “are of little or no weight, value, or
importance, not worthy of serious consideration or trivial.” Deutsch v. United States, 67 F.3d 1080,
1083 (3d Cir. 1995).
Pro se complaints are liberally construed in favor of the plaintiff. Haines v. Kerner, 404
U.S. 519, 520–21 (1972). The court must “accept as true factual allegations in the complaint and
all reasonable inferences that can be drawn therefrom.” Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.
1996); see also Watts v. Graves, 720 F.2d 1416, 1419 (5th Cir. 1983). In deciding whether a
complaint states a claim, “[t]he court’s task is to determine whether the plaintiff has stated a legally
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cognizable claim that is plausible, not to evaluate the plaintiff’s likelihood of success.” Lone Star
Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). “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.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id. Moreover, the petitioner’s pro
se status does not offer him “an impenetrable shield, for one acting pro se has no license to harass
others, clog the judicial machinery with meritless litigation, and abuse already overloaded court
dockets.” Farguson v. Mbank Houston N.A., 808 F.2d 358, 359 (5th Cir. 1986).
Des Rochers’s claims, filed May 9, 2016, arise out of a residential mortgage refinancing loan
of $46,000.00 that was advanced on October 13, 2011, by El Dorado Savings Bank (“the Bank”).
Dkt. No. 5 at 1. Des Rochers sues William Blucher, CFO of the Bank, George L. Cook, Jr., CEO
of the Bank, and Thomas P. Griffin, counsel to the Bank, (“Defendants”). Id. Des Rochers alleges
violations of the Truth in Lending Act (TILA) for failure to rescind the loan under 12 C.F.R. §
226.23. Id. He also alleges violations of the Fair Debt Collection Practices Act (“FDCPA”) §§
1692-1692p. Id. His initial complaint alleged fraud, constructive fraud, fraud by conversion,
fraudulent inducement, and mail fraud, but his supplement withdrew those claims as inappropriate
since they are criminal statutes which do not provide a civil cause of action. Dkt. No. 4 at 4. Des
Rochers seeks $4,340,000 in damages as well as declaratory and injunctive relief. Dkt. No. 1 at 1.
Des Rochers’s claim for failure to rescind the mortgage pursuant to 12 C.F.R. § 226.23 has
no legal merit. TILA establishes a right to rescind certain credit transactions involving a lien on the
borrower’s principal dwelling. 15 U.S.C. § 1635(a); 12 C.F.R. § 226.23(a). Des Rochers states that
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on February 3, 2016, he sent a “Notice of Void Mortgage Contract” to Defendants. Dkt. No. 1 at 1.
TILA, however, does not grant a right of rescission to residential mortgage transactions. See 15
U.S.C. § 1635(e)(1); Gipson v. Deutsche Bank Nat’l Trust Co., No. 3:13–CV–4820–L, 2015 WL
2069583, at *10 (N.D. Tex. May 4, 2015). Because Des Rochers’s claim for “failure to rescind”
pertains to a residential mortgage, his right of rescission claim under TILA necessarily fails.
Des Rochers’s claim under the FDCPA is also without legal merit because Defendants are
not “debt collectors.” The FDCPA “prohibits ‘debt collectors’ from making false or misleading
representations and from engaging in various abusive and unfair practices.” Heintz v. Jenkins, 514
U.S. 291, 292 (1995). To prevail on an FDCPA claim, a plaintiff must prove that (1) he has been
the object of collection activity arising from consumer debt; (2) the defendant is a “debt collector”
as defined by the FDCPA; and (3) the defendant has engaged in an act or omission prohibited by the
FDCPA. E.g., Turner v. Nationstar Mortg. LLC, 2015 WL 9918693, at *4 (N.D. Tex. Nov. 13,
2015). A “debt collector” is “any person who uses any instrumentality of interstate commerce or the
mail in any business the principal purpose of which is the collection of any debts, or who regularly
collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due
another.” 15 U.S.C. § 1692a(6). The Defendants are not in the principal business of collecting debts
and the mortgage in question originated with the Bank and is not debt “due another.”
Des Rochers’s FDCPA claim also fails because his allegations of “false representations” are
not sufficiently pled. Des Rochers alleges that the “false representations” made by the Defendants
included, inter alia, that “[t]he funds lent by the BANK [sic] were ‘fiat’ money with no intrinsic
value” and that the “BANK [sic] took the promissory note with our signature to the U.S. Treasury
to create the money, then put the money in escrow, fractionalized it by at least 10 and then ‘loaned’
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us one of those ten as a ‘mortgage.’” Dkt. No. 1 at 1. Pro se pleadings are construed liberally, but
pro se plaintiffs must still provide sufficient facts in support of their claims. United States v. Pineda,
988 F.2d 22, 23 (5th Cir. 1993). Pleadings must “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 663 ( 2009). “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.” Id. at 678. Even under the rule of liberal construction, the facts
which Des Rochers puts forth in support of his FCDPA claim do not allow the court to draw the
reasonable inference that the defendants are liable for the misconduct alleged.
Finally, this is not the first lawsuit of this kind that Des Rochers has filed. On May 12, 2016,
Des Rochers filed suit against Brian T. Moynihan, CEO, Bank of America Corporation, and Paul M.
Donofrio, CFO, Bank of America Corporation, seeking $4,340,000 as well as declaratory and
injunctive relief. Des Rochers v. Moynihan, et al., No. A-16-CV-567-SS (W.D. Tex. filed May 12,
2016). He alleged the same violations as in the case currently before the court (violations of C.F.R.
§ 226.23, violations of the FDCPA §§ 1692-1692p, fraud, constructive fraud, fraud by conversion,
fraudulent inducement, and mail fraud) with the addition of a claim under 17 U.S.C. § 501 for
infringement of copyright. On May 19, 2016, the case was dismissed with prejudice by Judge Sparks
for lack of legal merit. See Order Dismissing Case with Prejudice of May 19, 2016, Dkt. No. 6 at
1. A court possesses the inherent power “to protect the efficient and orderly administration of
justice,” including “the power to levy sanctions in response to abusive litigation practices.” In re
Stone, 986 F.2d 898, 902 (5th Cir. 1993). Id. Sanctions may be appropriate when a pro se litigant
has a history of submitting multiple frivolous claims. FED. R. CIV. P. 11; Mendoza v. Lynaugh, 989
F.2d 191, 195-97 (5th Cir. 1993).
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III. ORDERS AND RECOMMENDATIONS
In accordance with the foregoing discussion, the Court HEREBY GRANTS Des Rochers
in forma pauperis status. The undersigned RECOMMENDS that the District Court DISMISS this
case pursuant to 28 U.S.C. § 1915(e)(2)(B). The Clerk is directed to remove this case from the
docket of the undersigned and return it to the district judge.
IV. WARNINGS
The parties may file objections to this Order and Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive or general objections. See
Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file
written objections to the proposed findings and recommendations contained in this Report within
fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo
review by the District Court of the order and proposed findings and recommendations in the Report
and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to
proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. §
636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto Ass’n,
79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED this 16th day of August, 2016.
_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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