Riggins v. Wells Fargo Bank, N.A. et al

Filing 40

REPORT AND RECOMMENDATIONS re 26 Motion to Dismiss, filed by Wells Fargo Bank, N.A., American Home Mortgage Servicing, Inc., 21 Motion to Dismiss,, Motion for More Definite Statement, filed by Martin Allen, 36 Motion to Strike filed by Robert F . Riggins, 12 Motion to Dismiss filed by Wells Fargo Bank, N.A., American Home Mortgage Servicing, Inc., 8 Motion to Stay filed by Robert F. Riggins, 39 Motion to Strike, filed by Delbert Waldrip, Charles Ramsey, 25 Motion to Dismiss, filed b y Delbert Waldrip, Charles Ramsey, 10 Motion to Dismiss, filed by Delbert Waldrip, Charles Ramsey, 18 Motion to Dismiss, filed by Michael W. Zientz, L. Keller Mackie, Brandon Wolf, Robert D. Valdespino, Troy Martin, Ron Bedford, Brenda Rolon, Deborah Martin, 31 Motion for Hearing filed by Robert F. Riggins. Signed by Judge Nancy Stein Nowak. (mailed on 8/13/2010 by certified mail, or sent via electronic transmittal)(rg)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF TEXAS S A N ANTONIO DIVISION

R O B E R T F. RIGGINS, P la in tiff, v. W E L L S FARGO BANK, N.A., O P T I O N ONE MORTGAGE CO., A M E R IC A N HOME MORTGAGE SERVICING, INC., H IG H L A N D CAPITAL LENDING, INC., F R E E D O M LENDING, M A C K I E , WOLF & ZIENTZ, R O B E R T D. VALDESPINO, T R O Y MARTIN, D E B O R A H MARTIN, B R E N D A ROLON, K A T H L E E N VARGAS, R O N BEDFORD, M I C H A E L W. ZIENTZ, K A T H Y SMITH, M A R T IN ALLEN, C H A R L E S RAMSEY, D I B R E L L WALDRIP, J O H N and JANE DOES 1-1000, L . KELLER MACKIE, B R A N D O N WOLF, D efen d a n ts.

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C I V I L ACTION NO. S A -1 0 -C V -0 2 9 3 XR (NN)

R E P O R T AND RECOMMENDATION TO: H o n o r a b le Xavier Rodriguez U n ite d States District Judge T h is report and recommendation recommends dismissing this case. I have authority to e n te r this report and recommendation under 28 U.S.C. § 636(b) and the district judge's order of

referral.1 N a tu r e of the case. Plaintiff Robert F. Riggins, pro se, filed suit against multiple d e fe n d a n ts seeking declaratory and injunctive relief. In his original complaint, Riggins sought to s u e 18 named defendants and 1,000 John Doe defendants for numerous causes of action.2 Riggins c o m p la in ed about the foreclosure of property and procedures related to property foreclosures. Riggins asked the court to stay the execution of a state-court order authorizing the foreclosure sale o f his home.3 In response, numerous defendants moved to dismiss this case for failing to state a c la im .4 Riggins responded to one of the motions5 and then twice purported to amend his

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Docket entry # 30. Docket entry # 7.

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Docket entry # 8 (Riggins's petition to stay execution of state court judgment, stating that he had sought relief in bankruptcy court). Docket entry # 10 (motion to dismiss by Comal County Judges Charles Ramsay and Dibrell Waldrip, stating that Riggins's claims against them arise out of proceedings involving the foreclosure sale of Riggins's home over which they presided and asserting Eleventh Amendment immunity); docket entry # 12 (motion to dismiss by Wells Fargo, N.A., American Home Mortgage Servicing and Kathy Smith, asserting various reasons Riggins's allegations fail to state a claim upon which relief may be granted); docket entry # 18 (motion to dismiss by Mackie, Wolf & Zientz, P.C.; Robert D. Valdespino; Troy Marin, Deborah Martin, Brenda Rolon; Ron Bedford; L. Keller Mackie; and Michael W. Zientz, incorporating the reasoning of Wells Fargo's motion to dismiss); docket entry # 21 (motion to dismiss by Martin Allen stating that he is the Comal County District Court Administrator and complaining that Riggins's complaint does not give him notice of the allegations against him); docket entry # 25 (motion to dismiss plaintiff's amended complaint by Judges Ramsay and Waldrip asserting judicial immunity); docket entry # 26 (motion to dismiss plaintiff's amended complaint by Wells Fargo, N.A., American Home Mortgage Servicing and Kathy Smith, complaining that Riggins has made only implausible, speculative, conclusory allegations). Subsequently, another motion was filed. See docket entry # 39 (motion to strike plaintiff's second amended complaint by Judges Ramsay and Waldrip).
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Docket entry # 15. 2

complaint.6 The district judge then referred the case to me. B e c a u s e Riggins's pleadings indicated that Riggins challenges a state-court order a u th o riz in g the forced sale of his home, I issued a show cause order discussing the reasons R ig g in s 's allegations fail to state a claim. I directed Riggins to show cause in writing by August 9 , 2010 why this case should not be dismissed for the reasons discussed in the order. I warned R ig g in s that if he failed to respond by August 9, 2010, I would recommend dismissing this case fo r the reasons discussed in the show-cause order, and for failing to comply with a court order and fa ilin g to prosecute.7 T h e August 9, 2010 deadline passed. Riggins did not respond. To the extent that Riggins m ay later claim an inability to respond by the deadline, such inability is unlikely because Riggins file d a pleading in his bankruptcy proceeding on August 6, 2010. To the extent that Riggins may c la im that he did not receive the show-cause order, that is unlikely also because the address R ig g in s provided to the bankruptcy court is the same address he provided to this court. If Riggins re ceiv e d bankruptcy filings at the address, he likely received my show-cause order. S ta n d a r d for a Motion to Dismiss. A defendant in a civil action may move to dismiss u n d e r Rule 12(b)(6) for "failure to state a claim upon which relief may be granted." 8 T o survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead "enough fa cts to state a claim to relief that is plausible on its face." "Factual allegations m u s t be enough to raise a right to relief above the speculative level, on the

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Docket entry #s 16 & 27.

See Fed. R. Civ. P. 41(b) (permitting the defendant to move for dismissal on grounds the plaintiff failed to prosecute his case); Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980) (explaining that "a federal district court possesses the inherent authority to dismiss an action for want of prosecution").
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Fed. R. Civ. P. 12(b)(6). 3

assumption that all the allegations in the complaint are true (even if doubtful in f a c t) ." 9 W h e n considering a motion to dismiss, if the motion appears meritorious and a more carefully d rafte d complaint might cure any deficiencies, the district court must first "give the plaintiff an o p p o rtu n ity to amend his complaint, rather than dismiss it . . . ."10 W h y Riggins's allegations fail to state a claim. There are at least three reasons R ig g in s 's allegations fail to state a claim upon which relief may be granted. L a ck of standing. The first reason Riggins's allegations fail to state a claim is that Riggins la c k s standing to pursue relief on behalf of others. "[S]tanding raises the issue of whether the p la in tiff is entitled to have the court decide the merits of the dispute or of particular issues." 11 To h a v e standing, "[a] plaintiff must allege personal injury fairly traceable to the defendant's a lle g ed ly unlawful conduct and likely to be redressed by the requested relief."12 A plaintiff "g e n era lly must assert his own legal rights and interests, and cannot rest his claim to relief on the le g a l rights or interests of third parties."13 The party invoking federal jurisdiction bears the burden o f establishing the[] elements [of standing].14 In the original complaint, Riggins sought relief for "himself, wife, and all other natural

In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).
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Fuller v. Rich, 925 F. Supp. 459, 461 (N.D. Tex. 1995). Pederson v. La. St. Univ., 213 F.3d 858, 869 (5th Cir. 2000). Allen v. Wright, 468 U.S. 737, 751 (1984). Warth v. Seldin, 422 U.S. 490, 499 (1975). Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). 4

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persons and citizens of the State of Texas who pay mortgages in the State of Texas. . . ." 15 C o n s is te n t with that representation, Riggins referred to "plaintiffs" throughout his complaint, in d ica tin g he seeks relief on behalf of others. Riggins has standing to bring claims on his own b e h a lf, but he lacks standing to bring claims on behalf of his wife and other persons who pay m o rtg a g e s in Texas. To the extent Riggins seeks relief on behalf of himself, the only personal in ju ry Riggins complained about is the foreclosure sale of his home. As discussed below, this c o u rt lacks jurisdiction to consider that injury. L a ck of subject matter jurisdiction. The second reason Riggins's allegations fail is lack s u b je c t matter jurisdiction. Under the Rooker-Feldman doctrine, a federal court lacks jurisdiction to entertain a collateral attack on a state-court order.16 "When issues raised in a federal court are `in e x tricab ly intertwined' with a state judgment and the court is `in essence being called upon to re v ie w the state-court decision,' the court lacks subject matter jurisdiction to conduct such a re v ie w ."17 "The casting of a complaint in the form of a civil rights action cannot circumvent this ru le , as absent a specific delegation `federal district court[s], as court[s] of original jurisdiction, la c k [ ] appellate jurisdiction to review, modify, or nullify final order[s] of state court[s].'" 18 W h e re subject matter jurisdiction is questioned, the plaintiff bears the burden of demonstrating s u b je c t matter jurisdiction.19 In determining whether subject matter jurisdiction exists, the district

15

Docket entry # 7, p. 1. See Liedtke v. St. Bar of Tex., 18 F.3d 315, 317 (5th Cir. 1994). Davis v. Bayless, 70 F.3d 367, 375-76 (5th Cir. 1995). Liedtke, 18 F.3d at 317. See Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980). 5

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court may consider matters outside the pleadings.20 T h e issues raised by Riggins in this case are inextricably intertwined with the state-court o rd e r permitting the foreclosure sale of Riggins's home. Prior to this lawsuit, defendant Wells F a rg o Bank applied for a home equity foreclosure.21 In the application, Wells Fargo explained th a t Riggins and his wife borrowed money against the equity in their home22 and defaulted on the n o te . Wells Fargo sought to foreclose on the note and sell the home at public auction. Wells F a rg o named defendants Robert D. Valdespino, Troy Martin, Deborah Martin, Brenda Rolon, K a th le e n Vargas, Ron Bedford, and Michael Zientz as trustees for the auction. On March 1, 2010, th e presiding judge of the 433d Judicial District Court, Comal County, Texas--defendant Charles R a m sey -- g ra n te d the application, authorizing Wells Fargo to proceed with the foreclosure sale.23 A s part of the foreclosure proceeding, Riggins likely appeared before defendant Judge Dibrell W a ld rip , because Riggins complained that Waldrip "failed to provide impartiality to the plaintiff in a court setting. . . ."24 Although references to the state-court proceeding are vague in the o rig in a l complaint, Riggins complained about Wells Fargo's lawsuit and the appointment of tru s tees.25 He further complained about being denied due process by Judges Ramsey and Waldrip a n d not having the opportunity to be heard.26 These allegations show that Riggins seeks review of
20

Id. See docket entry # 10, exh. 1. Riggins provided a copy of the note. See docket entry # 17, exh. 1. See docket entry # 10, exh. 2. See also docket entry # 27, exh. G. Docket entry # 7, ¶ 13. Id., ¶¶ 34-36. Id., ¶ 37. 6

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the state-court order. R ig g in s purported to amended his complaint in response to Wells Fargo's motion to d is m is s and confirmed that he challenges the state-court order. In the response, Riggins stated that h e "had a case, Comal County District Court, case no. C-2010-0090-D brought by WELLS F A R G O BANK, N.A., AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF SOUNDVIEW H O M E LOAN TRUST 2007-OPT5 . . . in a home foreclosure case."27 Riggins complained about h o w defendant law firm Mackie, Wolf and Zientz aided and abetted in foreclosing on his home a n d that he had not signed a mortgage note with Wells Fargo. He also complained about d e fe n d a n t Kathy Smith28 as trustee for the sale,29 and explained why he believed the sale was u n la w fu l30 and constituted a RICO violation.31 These allegations confirm that Riggins seeks re v ie w of the state-court order. In the original complaint, Riggins also complained about "Deprivation of Rights, D e p riv a tio n of Rights Under Color of Law, Civil Action for Deprivation of Rights, . . . [and] D e n ial of Liberty Interest. . . ."32 He sought "protection of their due process rights and redress for in ju rie s . . . and protections of the 14th Amendment."33 By so pleading, Riggins indicated he

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Docket entry # 16, ¶ 1.

Kathy Smith signed the assignment of note and deed of trust, assigning Riggins's loan from Option One Mortgage Corporation to Wells Fargo Bank. See docket entry # 27, exh. C.
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Docket entry # 16, ¶¶ 11-13. Id., ¶¶ 14-16. Id., ¶¶ 17-22. Docket entry # 7, ¶ 23. Id., ¶ 25. 7

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brought a civil rights action. Casting his complaint in the form of a civil rights action does not o v e rc o m e the jurisdictional bar. Riggins may not use a civil rights action to collaterally attack the s tate -co u rt order. Riggins could have sought review of the state-court order by appealing in state c o u rt, but he cannot obtain that review in federal court. A v o id in g the bankruptcy court's order. The third reason Riggins's allegations fail is that R ig g in s cannot use this lawsuit to avoid the bankruptcy court's order. The bankruptcy court may h e a r and determine bankruptcy cases, to include core proceedings.34 That authority includes "c o u n te rcla im s by the estate against persons filing claims against the estate;" "orders to turn over p ro p e rty of the estate;" and "motions to terminate, annul, or modify the automatic stay." 35 R ig g in s 's claims fall within these categories. R ig g in s sought protection from his creditors in bankruptcy court prior to filing this la w su it. As part of that proceeding, defendant attorney Michael W. Zientz, on behalf of defendant A m e ric a n Home Mortgage Servicing, Inc., asked for relief from the automatic bankruptcy stay to p e rm it American Home Mortgage Servicing, Inc. to foreclose on Riggins's home.36 Riggins re sp o n d e d by making many of the allegations made in this case, alleging that American Home M o rtg a g e Servicing, Inc. had committed theft, fraud, fraudulent concealment, fraudulent c o n v e y a n c e and conversion. He further complained about complicity by defendants Capital L e n d in g , Inc., Option One Mortgage Inc., and Wells Fargo Bank NA.37 The bankruptcy judge

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28 U.S.C. § 157. Id.
C a u s e No. 10-50894-rbk, docket entry # 19 (Bankr. W.D. Tex. Mar. 23, 2010).

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Id., docket entry # 22, Apr. 19, 2010. 8

lifted the stay, permitting American Home Mortgage Servicing, Inc. to foreclose on the property. Riggins then filed this lawsuit. By challenging the same matters in this lawsuit as in the b a n k ru p tc y proceeding, Riggins showed that he seeks to circumvent the bankruptcy judge's order liftin g the bankruptcy stay to permit the foreclosure sale. To the extent that Riggins seeks to a p p e a l the bankruptcy judge's order, the bankruptcy rules provide for appeals of bankruptcy o rd e rs . Riggins has not complied with those rules. R e c o m m e n d a tio n . For the reasons discussed above, I recommend dismissing this case for la c k of standing, as barred by Rocker-Feldman doctrine, as an attempt to circumvent the b a n k ru p tc y judge's order, for failing to comply with a court order and for failing to prosecute.38 T h ere is no need to permit Riggins to amend his complaint, because despite repeated attempts to a m e n d his complaint, each purported amendment contains the same deficiencies.39 In his most re cen t attempt to amend, Riggins purported to bring criminal charges against certain defendants in th e capacity of a "Private Attorney General." Riggins alleged the defendants commenced a ju d icia l foreclosure sale using fraudulent documents and unlawfully foreclosed on his property.40 T h es e allegations show that Riggins seeks to challenge the state-court order, despite amendment.

See Fed. R. Civ. P. 41(b) (permitting the defendant to move for dismissal on grounds the plaintiff failed to prosecute his case); Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980) (explaining that "a federal district court possesses the inherent authority to dismiss an action for want of prosecution"). Morrison v. City of Baton Rouge, 761 F.2d 242, 246 (5th Cir. 1985) (explaining that where the plaintiff has been given an opportunity to amend her complaint, the court may assume the plaintiff has pleaded her best case). See Dark v. Potter, 293 Fed. App'x 254, 257 (5th Cir. 2008) (applying the rule to a pro se plaintiff's complaint and stating, "this court often assumes a plaintiff asserts its best case after the plaintiff is `apprised of the insufficiency' of the complaint"). Docket entry # 37, pp. 34-37. See also docket entry # 27, p. 4 (complaining about filing a foreclosure action in Texas state district court). 9
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If the district court accepts the recommendation to dismiss the case, the court can DENY: (1) R ig g in s 's motion to stay (docket entry # 8) as barred by the Rooker-Feldman doctrine; (2) pending m o tio n s to dismiss (docket entry #s 10, 12, 18, 21, 25 & 26) as moot; (3) Riggins's motion for a h e a rin g (docket entry # 31) and motion to strike (docket entry # 36) as moot; and (4) the motion to s trik e plaintiff's second amended complaint filed by Judges Ramsay and Waldrip (docket entry # 3 9 ) as moot. I also recommend ADMONISHING Riggins about the requirements of Rule 11(b) of the F e d era l Rules of Civil Procedure and WARNING Riggins that the court will impose sanctions if h e files another case violating the rule. Under the rule, the court may sanction an unrepresented p a rty for filing a paper advancing claims, defenses, and other legal contentions the party knows a re not warranted by existing law. This case violates the rule because Riggins advanced legal c o n ten tio n s he knows or should have known are not warranted by existing law--he sought to c irc u m v e n t the state-court order even though he knew he could appeal the order;41 he styled his o rig in a l complaint as a civil rights claim in an effort to invoke the court's jurisdiction where no ju ris d ic tio n exists; and he attempted to act as a private attorney general to criminally sue the d e fe n d a n ts . I recommend that Riggins be warned that continuing to present claims, defenses and c o n ten tio n s without basis in this or other proceedings may result in sanctions. I n s tr u c tio n s for Service and Notice of Right to Object/Appeal. The United States D is tric t Clerk shall serve a copy of this report and recommendation on all parties by either (1) e le c tro n ic transmittal to all parties represented by attorneys registered as a "filing user" with the

See docket entry # 37, exh. I (transcript of the state-court hearing for the application for foreclosure in which the defendant state-court judge advised Riggins, "You have a right to appeal."). 10

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clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt re q u e s te d . Written objections to this report and recommendation must be filed within 14 days a fte r being served with a copy of same, unless this time period is modified by the district court.42 S u ch party shall file the objections with the clerk of the court, and serve the objections on all other p a rtie s and the magistrate judge. A party filing objections must specifically identify those fin d in g s , conclusions or recommendations to which objections are being made and the basis for s u c h objections; the district court need not consider frivolous, conclusive or general objections. A p a rty 's failure to file written objections to the proposed findings, conclusions and re co m m e n d a tio n s contained in this report shall bar the party from a de novo determination by the d is tric t court.43 Additionally, failure to file timely written objections to the proposed findings, c o n c lu sio n s and recommendations contained in this report and recommendation shall bar the a g g rie v e d party, except upon grounds of plain error, from attacking on appeal the unobjected-to p ro p o s e d factual findings and legal conclusions accepted by the district court.44 S I G N E D on August 13, 2010.

_____________________________________ N A N C Y STEIN NOWAK U N IT E D STATES MAGISTRATE JUDGE

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28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b).

Thomas v. Arn, 474 U.S. 140, 149-152 (1985); Acuña v. Brown & Root, 200 F.3d 335, 340 (5th Cir. 2000).
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Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996). 11