Luther v. Wells Fargo Bank, N.A. et al
Filing
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MEMORANDUM OPINION. Signed by Magistrate Judge Robert S. Ballou on 7/15/16. (ham)
IN THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
DANVILLE DIVISION
JAMES T. LUTHER,
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) Case No. 4:16-cv-00013
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Plaintiff,
v.
WELLS FARGO BANK, N.A., et al.,
Defendants.
MEMORANDUM OPINION
Defendants Wells Fargo Bank (“Wells Fargo”) and Atlantic Law Group (“Atlantic”)
move to dismiss James T. Luther’s (“Luther”) complaint with prejudice under Federal Rules of
Civil Procedure 12(b)(6), Rule 8(a) (Dkt. No. 4), and also seek a pre-filing injunction. Dkt. No.
6. The motions will be GRANTED.
Procedural History and Facts
This case represents Luther’s third attempt to forestall the foreclosure of his home located
at 2194 Dogwood Lane in Fieldale, Virginia. Luther filed his first complaint against Wells Fargo
on December 7, 2011 alleging fraud, violations of the Truth in Lending Act (“TILA”), 15 U.S.C.
§ 1601, and the Real Estate Settlement and Procedures Act (“RESPA”), 12 U.S.C. § 2605. See
Luther v. Wells Fargo, Case No. 4:11cv00057 (“the 2011 case” or “4:11cv00057”). The court
entered an order adopting the recommendation of the magistrate judge and dismissing the case
with prejudice on September 25, 2012. See id. at Dkt. No. 45. Luther filed a second lawsuit on
December 17, 2013 against Wells Fargo and Atlantic alleging violations of the Fair Debt
Collection Practices Act, wrongful foreclosure, fraud, and mail fraud. See Luther v. Wells Fargo,
Case No. 4:13cv00072 (“the 2013 case” or “4:13cv00072”). The court again adopted the
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magistrate judge’s recommendation and dismissed the case with prejudice. See id. at Dkt. Nos.
60 & 61. Luther filed a motion to reconsider pursuant to Rule 59(e), which the court denied. See
id. at Dkt. Nos. 64 & 65. Luther then appealed the 2013 case to the Fourth Circuit Court of
Appeals and that court affirmed the district court’s decision on December 2, 2015. See id. at Dkt
Nos. 74 & 75. Luther next filed a motion to set aside the judgment in both cases on February 10,
2016. See id. at Dkt. No. 81. Luther’s motion was denied on February 11, 2016. See id. at Dkt.
Nos. 83 & 84.
In the instant case, Luther originally filed his complaint in the Henry County Circuit
Court, stating that “Defendant has agreed to default provision of contracting in this matter and
has failed [sic] specific performance of releasing liens and deeds and return of fees and notes and
misapplied payments.” Dkt. No. 1-5, p. 3. 1 Luther also seeks to quiet title “pursuant to title 5566.5c and [for] return of fees and specific performance of default provisions agreed to by
defendants.” Id. Attached to his complaint are two exhibits. Exhibit 1 is a letter Luther wrote on
March 8, 2011 to John G. Stumpf (“Stumpf”), CEO of Wells Fargo. Dkt. No. 1-5, p. 16. Exhibit
2 is a second letter Luther wrote to Stumpf on or about June 13, 2011. Dkt. No. 1-5, p. 52. The
first letter is a purported “qualified written request” (“QWR”) 2 that seeks certain confirmation
and information from Stumpf about Luther’s loan with Wells Fargo. At the end of that letter,
Luther wrote verbatim:
WELLS FARGO BANK MR. JOHN G. STUMPF, CEO or any agents, transfers,
or assigns omissions of or agreement by silence of this RESPA REQUEST via
certified rebuttal of any and all points herein this RESPA REQUEST, agrees and
consents to including but not limited by any violations of law and/or immediate
terminate/remove any and all right, title and interest (liens) in JAMES THOMAS
LUTHER or any property or collateral connected to JAMES THOMAS Luther or
1
Defendants removed Luther’s case to this court on March 16, 2016.
These same letters were submitted in Luther’s 2013 case and I determined that they were not QWRs as defined by
statute. See Case No. 4:11cv00057, Dkt. No. 43, p. 12. However, they will be referred to as such in this opinion for
the sake of consistency and identification only.
2
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account REDACTED and waives any and all immunities or defenses in claims
and or violations agreed to in this RESPA REQUEST including but not limited by
any and all:
The letter continues by including a list of what appear to be Luther’s demands. In a final section
entitled “Power of Attorney,” Luther wrote:
When WELLS FARGO BANK MR. JOHN G. STUMPF, CEO fails by
not rebutting to any part of this RESPA REQUEST WELLS FARGO
BANK MR. JOHN G. STUMPF, CEP agrees with the granting unto
JAMES THOMAS LUTHER’S unlimited Power of Attorney and any and
all full authorization in signing and endorsing WELLS FARGO BANK
MR. JOHN G. STUMPF, CEO’s name upon any instruments in
satisfaction of the obligations of this RESPA REQUEST/Agreement or
any agreement arising from this agreement.
Exhibit 2 notes that Wells Fargo and Stumpf have failed to respond to the first letter and that this
failure “is their admission that the ‘Default Provisions under this QUALIFIED WRITTEN
REQUEST’ are in full effect.” It appears Luther believes that by sending this letter to which
Wells Fargo and Stumpf never responded, that Wells Fargo and Stumpf have agreed to Luther’s
demands and consented to granting him power of attorney over Wells Fargo’s affairs. Luther’s
complaint itself is very brief and states that Defendants have agreed to these “default provisions”
and that he seeks to quiet title to his property. The complaint is devoid of facts and instead
contains fifty-eight pages of exhibits, including his state court notice of lis pendens, a notice of
federal claim of common law lien, an application in the state court for a temporary restraining
order, a proposed order to quiet title, a letter Luther wrote to Atlantic, and the letters noted
above. Defendants have moved to dismiss Luther’s complaint on res judicata grounds, for failure
to state a claim under Federal Rule of Civil Procedure 12(b)(6), and for failure to satisfy the
minimum pleading requirements as enumerated in Ashcroft v. Iqbal, 556 U.S. 662 (2009), Bell
Atlantic v. Twombly, 550 U.S. 544 (2007), and Rule 8. Defendants also request that the court
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deny any leave to amend the complaint because such amendment would be futile and would be
made in bad faith.
Motion to Dismiss
Res Judicata3
The doctrine of res judicata means that a “final judgment on the merits of an action
precludes the parties or their privies from relitigating issues that were or could have been raised
in that action.” Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 298 (1981). “By precluding
parties in a subsequent proceeding from raising claims that were or could have been raised in a
prior proceeding, ‘[r]es judicata . . . encourages reliance on judicial decisions, bars vexatious
litigation, and frees the courts to resolve other disputes.’” Canterbury v. J.P. Morgan Acquisition
Corp., 958 F. Supp. 2d 637, 645 (W.D. Va. 2013) (quoting Brown v. Felsen, 442 U.S. 127, 131
(1979)). Res judicata applies when there has been “(1) a final judgment on the merits in an
earlier suit, (2) an identity of the cause of action in both the earlier and the later suit, and (3) an
identity of parties or their privies in the two suits.” Nash Cnty. Bd. of Ed. v. Biltmore Co., 640
F.2d 484, 486 (4th Cir. 1981).
Here, all three requirements have been met and res judicata bars Luther’s claims. The
first requirement has been met because Luther has brought two previous suits regarding the
foreclosure of his home, both of which were dismissed with prejudice following a Rule 12(b)(6)
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As an initial matter, it is appropriate to consider a motion to dismiss on the grounds of res judicata, despite the fact
that doing so requires the consideration of evidence outside the four corners of the pleadings. See Andrews v. Daw,
201 F.3d 521, 524 n.1 (4th Cir. 2000) (finding it proper to consider res judicata at the motion to dismiss phase when
it clearly appears on the face of the complaint); Thomas v. Consolidation Coal Co., 380 F.2d 69, 75 (4th Cir. 1967)
(holding the same). When considering a motion to dismiss on the basis of res judicata, the court may take judicial
notice of prior judicial proceedings when the res judicata defense raises no disputed issue of fact. Andrews, 201 F.3d
at 524 n.1 (citing Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992); Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th
Cir. 1984); Briggs v. Newberry County Sch. Dist., 838 F. Supp. 232, 234 (D.S.C.1992), aff’d, 989 F.2d 491 (4th Cir.
1993)). Luther raises no disputed issue of fact in his complaint; the issue he appears to raise is purely one of law,
i.e., whether Luther’s letters to Wells Fargo operate to relinquish Wells Fargo’s legal interest in his property.
Therefore, consideration of the res judicata defense is appropriate at the motion to dismiss phase of this case.
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motion to dismiss.4 The third requirement has also been met because Luther’s 2013 case named
both Wells Fargo and Atlantic as defendants, the same parties named in the instant case.
As for the second requirement, the court uses a transactional approach to determine
whether a plaintiff’s “new” claims in a subsequent lawsuit are barred under res judicata. “[T]he
appropriate inquiry is whether the new claim arises out of the same transaction or series of
transactions as the claim resolved by the prior judgment.” Keith v. Alridge, 900 F.2d 736, 740
(4th Cir. 1990) (quoting Harnett v. Billman, 800 F.2d 1308, 1313 (4th Cir. 1986)). A plaintiff
who could have brought his claims in a prior proceeding but did not is barred from bringing
tharose claims in a subsequent action if those claims arose out of the same transaction. Laurel
Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 164 (4th Cir. 2008); Canterbury, 958 F. Supp. 2d
at 645; see also Brown, 442 U.S. at 131 (holding that “[r]es judicata prevents litigation of all
grounds for, or defenses to, recovery that were previously available to the parties, regardless of
whether they were asserted or determined in the prior proceeding.”).
Luther’s claims in all of his cases have arisen from the foreclosure proceedings involving
his home at 2194 Dogwood Lane in Fieldale, Virginia. The cases all revolve around the same
promissory note, the same deed of trust, the same property, and the same purpose: to stop Wells
Fargo from foreclosing on Luther’s property. Though Luther’s theories of recovery are slightly
different in this case, nothing would have prevented him from bringing an action to quiet title in
either of his other two cases. More importantly, the letters Luther argues form the basis of his
claims in this case existed and were filed with the court in his 2011 case. See Case No.
4:11cv00057, Dkt. No. 3-1. Luther could have alleged a claim based on the letters in the prior
case, but he did not. This case arises from the same transaction as the 2011 and 2013 cases,
4
A Rule 12(b)(6) dismissal with prejudice operates as an adjudication on the merits for purposes of res judicata. See
McLean v. U.S., 566 F.3d 391, 396 (4th Cir. 2009) (accepting that a dismissal under Rule 12(b)(6) is an adjudication
on the merits).
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involves the same parties as the 2013 case, and purports to allege claims that could have been
brought previously. The prior cases were dismissed with prejudice. Accordingly, Luther’s claims
in this case are barred by the doctrine of res judicata.
Rule 12(b)(6) and Rule 8(a)
Even if res judicata did not bar Luther’s claims, Luther’s complaint would be dismissed
for failure to state a claim under Rule 12(b)(6) because his complaint is utterly lacking in facts to
support whatever claims he is attempting to make.
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint to determine
whether the plaintiff has properly stated a claim. See Edwards v. City of Goldsboro, 178 F.3d
231, 243 (4th Cir. 1999). A complaint must 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 plaintiff must “state[ ] a
plausible claim for relief” that “permit[s] the court to infer more than the mere possibility of
misconduct” based upon its “judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S.
at 679. The court accepts as true all well-pled facts and construes those facts in the light most
favorable to the plaintiff. Phillips v. Pitt County Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
However, “legal conclusions, formulaic recitation of the elements of a cause of action, or bare
assertions devoid of further factual enhancements fail to constitute well-pled facts for Rule
12(b)(6) purposes.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th
Cir. 2009) (citing Iqbal, 556 U.S. at 678)).
Plaintiffs must plead enough facts to “nudge[ ] their claims across the line from
conceivable to plausible,” and if the claim is not “plausible on its face,” it must be dismissed.
Twombly, 550 U.S. at 570. This plausibility requirement “does not impose a probability
requirement at the pleading stage; it simply calls for enough facts to raise a reasonable
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expectation that discovery will reveal evidence” supporting the plaintiff’s claim. Id. at 556.
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.” Iqbal,
556 U.S. at 679.
Allegations made in a pro se complaint are to be “liberally construed, and . . . must be
held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 93 (2007) (internal citation omitted). Notwithstanding this obligation, the court is
not required to accept a pro se plaintiff’s contentions as true, Denton v. Hernandez, 504 U.S. 25,
32 (1992), and cannot ignore a clear failure to allege facts positing a claim cognizable in a
federal district court. See Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Moreover, the court does not act as the pro se plaintiff’s advocate, sua sponte developing
statutory claims that the plaintiff failed to clearly raise on the face of the complaint. Id. (“The
‘special judicial solicitude’ with which a district court should view such pro se complaints does
not transform the court into an advocate. Only those questions which are squarely presented to a
court may properly be addressed.”).
Luther’s complaint is barely more than a single page consisting of two paragraphs
entitled “statement of facts” and “demand for relief.” See Dkt. No. 1-5, p. 3. The statement of
facts in its entirety reads:
Plaintiff alleges discharge of debt by defendants relating to deed of trust/mortgage
and an unjustifiable non release of deed, exhibit 4. Defendant has agreed to
default provisions of contracting in this matter and has failed specific
performance of releasing liens and deeds and return of fees and notes and
misapplied payments see exhibit 1 and 2 attached. This contracting between
Plaintiff and Defendant has been verified by Western District Federal Court. See
exhibit 3.
His demand for relief is equally terse, and states:
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The court to quiet the Title pursuant to title 55-66.5c and return of fees and
specific performance of default provisions agreed to by defendants including
return of original notes/monetary instruments or certified check for value thereof,
return of misapplied payments, bonds or liability insurance for John Stumpf, CEO
of Wells Fargo, defendant.
Luther’s complaint is essentially devoid of any discernible facts and leaves the court to
fill the factual void based on Luther’s litigation history, the exhibits attached to his
complaint, and his responses to the motion to dismiss.5 Even construing the complaint by
the liberal standards afforded to pro se litigants, it fails to meet Rule 8(a)’s requirement
that a complaint contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Accordingly, Defendants’ motion to
dismiss pursuant to Rule 12(b)(6) will be GRANTED.
Dismissal with Prejudice
Federal Rule of Civil Procedure 15(a)(2) governs any requests to amend a complaint, and
requires that leave be “freely given when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave to
amend should only be denied when permitting an amendment would be prejudicial to the
opposing party, there has been bad faith on the part of the movant, or when the amendment
would be futile. Laber v. Harvey, 438 F.2d 404, 426 (4th Cir. 2006) (citing Foman v. Davis, 371
U.S. 178, 182 (1962)).
This court has reviewed and rejected similar claims from Luther on two prior occasions.
In both of those cases, Luther’s claims were dismissed with prejudice. See Luther v. Wells Fargo
Bank, Case No. 4:11cv00057, 2012 WL 4405128 (W.D. Va. Sept. 25, 2012) (adopting the
magistrate judge’s recommendation to dismiss the case with prejudice); Luther v. Wells Fargo
Bank, N.A., Case No. 4:13cv00072, 2015 WL 1580982 (W.D. Va. Apr. 9, 2015) (adopting for a
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In deciding a motion to dismiss, the court must look at the complaint and its exhibits, not the factual allegations
raised for the first time in the plaintiff’s briefs. See Dickey v. Greene, 729 F.2d 957, 958 (4th Cir. 1984) (holding
that it was error for the court to consider matters not pleaded in the complaint at the motion to dismiss stage).
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second time the magistrate judge’s recommendation and dismissing the case with prejudice).
Luther has had ample time and opportunity to perfect any claims he may have had against the
defendants. He has been litigating his cases for approximately five years with no success
whatsoever, despite previous orders granting him leave to amend his complaints. More
importantly, Luther’s claims have already been dismissed with prejudice; any amendment he
would be allowed to make would be futile because his claims would again be barred by the
doctrine of res judicata. Accordingly, I will GRANT the defendants’ motion to dismiss this case
with prejudice.
Motion for Pre-Filing Injunction
Pre-filing injunctions are not favored, and “must be used sparingly” in light of the
Fourteenth Amendment. Cromer v. Kraft Foods North America, Inc., 390 F.3d 812, 817 (4th Cir.
2004). Courts considering issuing a pre-filing injunction must consider the constitutional
guarantees of due process and the right of access to the courts, as this right “‘lies at the
foundation of orderly government.’” Id. (quoting Chambers v. Baltimore & Ohio R.R. Co., 207
U.S. 142, 148 (1907)). Requests for pre-filing injunctions against a pro se plaintiff “should be
approached with particular caution” and should “remain very much the exception to the general
rule of free access to the courts.” Cromer (quoting Pavilonis v. King, 626 F.2d 1075, 1079 (1st
Cir. 1980)). A judge should not restrict a litigant’s right of access to the courts except in exigent
circumstances “‘such as a litigant’s continuous abuse of the judicial process by filing meritless
and repetitive actions.’” Cromer, 390 F.3d at 818 (quoting Brow v. Farrelly, 994 F.2d 1027, 1038
(3d Cir. 1993)).
When considering whether to impose such an injunction, a court must weigh and discuss
the following factors: (1) the party’s history of litigation, including whether he has filed
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vexatious, harassing, or duplicative lawsuits; (2) whether the party has a basis for pursuing the
litigation or simply intends to harass; (3) the extent of the burden on the courts and other parties
as a result of the party’s filings; and (4) the adequacy of alternative sanctions. Cromer, 390 F.3d
at 818 (internal citations omitted). Any resulting injunction must be “narrowly tailored to fit the
specific circumstances at issue” and cannot impose a blanket ban on any and all filings within a
district. Id. (quoting Brow, 994 F.2d at 1038); see also Safir v. United States Lines, Inc., 792
F.2d 19, 24 (2d Cir. 1986) (finding an injunction too broad when it barred a plaintiff from filing
any action in any related litigation). Finally, any litigant facing the possibility of a pre-filing
injunction must be given notice and an opportunity to be heard on the matter. Cromer, 390 F.3d,
at 819 (citing Brow, 994 F.2d at 1038)).
The first Cromer factor requires a review of the history of Luther’s litigation and whether
he has filed vexatious, harassing, or duplicative lawsuits. I find that he has. This case represents
Luther’s third attempt to stop Defendants from foreclosing on his property. In both of the
previous cases, Luther asserted unsupported theories in an attempt to absolve himself of the duty
to repay his mortgage. Luther has previously claimed that Wells Fargo violated multiple federal
statutes and that it had committed fraud. All of these claims were baseless and both prior cases
were dismissed with prejudice, with one of the dismissals affirmed by the Fourth Circuit Court of
Appeals. Luther is again attempting to delay or prevent the foreclosure of his property despite the
fact that over the past five years, he has failed to state a lawful basis for doing so. At this point, I
cannot but conclude that Luther’s repeated filings are duplicative and vexatious, and that they are
filed with an intent to harass.
The second Cromer factor requires consideration of whether Luther has a basis for
continuing his litigation, or whether he intends to harass the defendants. Luther has no legal basis
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for contesting the foreclosure of his property and he has failed to put forth any lawful reason why
the foreclosure should not take place, despite the fact that he has had five years to come up with
a viable theory. While Luther’s first case may have been brought with a good faith belief that he
was entitled to relief, I cannot conclude that after a substantial period of time and multiple
dismissals with prejudice that Luther can maintain any sort of good faith basis for continuing this
litigation. Accordingly, I must conclude that he continues to file suit against the defendants
solely for the purpose of harassing them.
The third factor considers the burden on the courts and the opposing parties triggered by
Luther’s repeated filings. Luther’s filings have created a significant burden on the opposing
parties, requiring Wells Fargo and Atlantic to respond to multiple motions, attend hearings,
engage in discovery, litigate an appeal, and expend time and money defending Luther’s repeated
baseless litigation. Luther’s various pleadings included motions to set aside judgments, proposed
orders quieting title and ordering the return of fees, requests for restraining orders, and a nonsensical “Federal Claims of Common Law Lien and Notice of Federal Common Law Lien and
Writ of Attachment” all of which required a response and thus the time and attention of the
opposing party. The court, too, has expended a vast amount of time and resources reviewing,
researching, and handling Luther’s cases. This expenditure serves no valuable purpose and takes
away time better spent on legitimate matters.
The final Cromer factor considers the adequacy of alternative sanctions. While there have
been no previous sanctions imposed against Luther, I am confident that a simple order to cease
filing frivolous motions or a monetary sanction would be inadequate. Luther has a history of
disobeying court orders and local rules regarding briefing schedules and filings. For example, in
his 2011 case, Luther continued to docket pleadings after his case was dismissed and after the
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district court denied his motion to set aside the judgment. See Case No. 4:11cv00057, Dkt. No.
50. He did the same thing at the Fourth Circuit when he continued to file pleadings in that case
almost a month after the court had issued its opinion denying his appeal. See Order at 1, Luther
v. Wells Fargo Bank, N.A., (No. 15-1539), Dkt. Nos. 32–34. In this case, Luther filed a sur-reply
without first obtaining leave of court. See Dkt. No. 20. Finally, Luther filed this case despite
previous court orders dismissing his case with prejudice and finding no basis for relief. A simple
order to follow the rules going forward will not be sufficient.
I also find that the imposition of a monetary sanction would likewise be insufficient to
deter Luther from filing frivolous or vexatious lawsuits. In a previous hearing, Luther admitted
under oath that, in an attempt to pay the balance of his mortgage with Wells Fargo, he wrote a
letter to Dr. Janet Yellen (the former head of the San Francisco branch of the Federal Reserve
Bank) and sought her permission to pay off his loan using Federal Reserve funds. See Transcript
of Oral Argument at 32, Luther v. Wells Fargo Bank, N.A., Case No. 4:13cv00072 (W.D. Va.
Jan. 16, 2015), Dkt. No. 72. When he received no response from Dr. Yellen, he interpreted that
as her acquiescence and proceeded to create a check using the San Francisco Federal Reserve’s
routing number, which he then tendered to Wells Fargo in purported satisfaction of his mortgage
debt. Id. 33. Based on Luther’s questionable response to Wells Fargo’s request for payment, I
find that the imposition of any monetary sanction would fail to deter Luther from repeated
filings, and that a pre-filing injunction is the only way to assure his compliance with court rules
that prohibit the filing of meritless pleadings.
Finally, I find that Luther has received adequate notice and opportunity to be heard on
Defendants’ request for a pre-filing injunction. In their motion for the injunction (which was
filed on March 16, 2016), Defendants included a bold-print, underlined notice which read “[t]he
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plaintiff is hereby on notice that defendants have requested the court to enter a pre-filing
injunction. The plaintiff is hereby afforded this notice and provided an opportunity to be heard
on this issue.” Dkt. No 7. Luther responded to this motion and specifically mentioned the prefiling injunction request in his response. Dkt. No. 16. He also filed a sur-reply referencing the
motion for pre-filing injunction. Dkt. No. 20. Neither side has requested a hearing in this case,
but both have had ample opportunity to do so. I find that Luther has been afforded the notice and
opportunity required by the Cromer decision, and that the imposition of a pre-filing injunction is
necessary to assure the orderly management of the court’s docket and the protection of the
defendants from harassing litigation.
I will tailor the pre-filing injunction narrowly to require that Luther obtain permission to
institute any action against the defendants in this case relating to the foreclosure of his home at
2194 Dogwood Lane in Fieldale, Virginia.
Conclusion
Luther’s instant complaint constitutes his third attempt to delay or prevent the foreclosure
on his property. Because it is his third attempt at litigating the same set of facts presented in his
previous two law suits, his claims are barred by res judicata. Even if they were not, Luther’s
complaint fails to state a claim under Rule 12(b)(6) and does not meet the pleading requirements
outlined in Rule 8(a). Therefore, Defendants’ motion to dismiss on these grounds will be
GRANTED in an accompanying order.
I have evaluated Defendants’ request for a pre-filling injunction under the Fourth
Circuit’s decision in Cromer and find that a pre-filing injunction is warranted in this case.
Accordingly, Defendants’ motion for a pre-filing injunction will be GRANTED in an
accompanying order.
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Entered: July 15, 2016
Robert S. Ballou
Robert S. Ballou
United States Magistrate Judge
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