von Germeten v. Planet Home Lending LLC

Filing 105

ORDER signed by Judge Pamela Pepper on 5/23/2019. 101 102 Plaintiff's motions to compel DENIED. 103 Plaintiff's motion for temporary restraining order/immediate injunctive relief DENIED. Show Cause Hearing set for 6/6/2019 at 10:30 AM in Courtroom 222, 517 E. Wisconsin Ave., Milwaukee, WI 53202 before Judge Pamela Pepper. By 6/4/2019 defendant to provide the court with authority supporting requests in its motion for sanctions. (cc: all counsel, via mail to Dean von Germeten)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DEAN VON GERMETEN,
Plaintiff,
v.

Case No. 17-cv-167-pp

PLANET HOME LENDING, LLC,
Defendant.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTIONS TO COMPEL (DKT. NOS. 101,
102), DENYING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING
ORDER AND INJUNCTIVE RELIEF (DKT. NO. 103), REQUIRING THE
DEFENDANT TO PROVIDE AUTHORITY SUPPORTING ITS REQUEST FOR
RELIEF AND MOTION FOR SANCTIONS (DKT. NO. 104) AND REQUIRING
PARTIES TO APPEAR IN PERSON FOR A SANCTIONS HEARING ON
JUNE 6, 2019 AT 10:30 A.M.
______________________________________________________________________________
Since filing his complaint in February 2017, the plaintiff has buried the
defendant and its attorneys in filings, many of which he has also filed with the
court. On January 29, 2018, the court issued an order finding that the
plaintiff’s complaint did not state a claim for a violation of any provision of the
federal Constitution or of federal law. Dkt. No. 52. Understanding that the
plaintiff was representing himself, however, the court gave him the opportunity
to amend his complaint to state such a claim. Id. at 10. The court ordered,
however, that “neither party shall engage in discovery—demand documents
from the other side, or file motions asking the court to require the other party
to provide documents—until the court issues a scheduling order . . . .” Id. at
14.
1

The plaintiff filed an amended complaint on February 27, 2018. Dkt. No.
60. Two weeks later, defendant Planet Home Lending filed a motion asking the
court to impose sanctions, including dismissal. Dkt. No. 61. Planet asserted
that although the court had ordered that neither party could demand
documents from the other until the court ordered discovery to start, the
plaintiff had continued to demand information from the defendant. Dkt. No.
61-1. It asserted that the plaintiff also had filed a separate lawsuit in Racine
County. Id. at 3. Planet asked the court to punish the plaintiff for failing to
follow the court’s order by dismissing this lawsuit. Id. at 4. This motion
prompted a flood of filings from the plaintiff—between March 14, 2018 and
March 21, 2019, the plaintiff filed thirty motions, letters and other documents.
Planet filed another request for sanctions and asked for a hearing. Dkt.
No. 94. In an order dated March 21, 2019, the court denied the plaintiffs’ many
motions, as well as Planet’s motions for sanctions. Dkt. No. 96. The court
screened the amended complaint, and dismissed Michael Dubek, Jeffrey
Bergida and Mark Clauss as defendants. Id. at 34. The court also dismissed a
number of the plaintiff’s frivolous claims, but concluded that—construing his
complaint very broadly—he may have stated a claim under RESPA that Planet
did not correctly respond to a qualified written request, a claim under TILA that
Planet may have failed to provide information required by the statute, and a
claim under the FDCPA that Planet tried to collect a debt the plaintiff did not
owe and falsely represented the amount of the debt. Id. at 18-23. At the end of
the order, the court explained, as clearly as it could, the next step in the
2

litigation—the court would allow the defendant to respond to the claims it had
allowed to go forward. Id. at 32-33. The court stated, however, that “[u]ntil the
defendant responds to the amended complaint, there is nothing else for the
plaintiff to do. The court will order the plaintiff not to file any other
documents—no letters, no affidavits, no notices, no motions, nothing—until he
hears from the court.” Id. at 33. The court also stated that
[i]f the plaintiff wants to proceed with the three claims upon which
the court has allowed him to proceed, he must stop clogging the
court’s docket with filings. He must stop burying the defendant in
paper. He must stop demanding that this court declare him the
winner of this lawsuit before the lawsuit even has gotten underway.
He must follow the rules that every litigant in this court must
follow—the Federal Rules of Civil Procedure, and this court’s local
rules (which the plaintiff can access on the court’s web site,
https://www.wied.uscourts.gov/local-rules-and-orders-0).
The court has denied the defendant’s two motions for
sanctions. If, however, the plaintiff continues to flood the court and
the defendant with repetitive, frivolous pleadings, and fails to follow
this court’s orders and the federal and local rules, the court will have
a basis to consider any future requests for sanctions.
Id.at 33-34.
On April 9, 2019, the defendant responded to the amended complaint by
filing a motion to dismiss. Dkt. No. 97. The Federal Rules of Civil Procedure
allow a defendant to file a motion to dismiss in lieu of an answer. Fed. R. Civ.
P. 12. Under this court’s local rules, the plaintiff had twenty-one days to file a
brief opposing that motion. Civ. L.R. 7(b). On April 18, 2019, the court received
a two-page document from the plaintiff, which said, “Any/all court decisions re:
the above case is/are: ACCEPTED FOR HONOR ON BEHALF OF THE UNITED
STATES.” Dkt. No. 99. The rest of the document quoted some statutes that
3

don’t apply to this case and some sections of the UCC. Id. at 1-2. The plaintiff
also filed ninety-four pages of documents, most of which he has filed before in
support of the portions of his complaint and amended complaint that this court
dismissed as frivolous and unfounded. Dkt. No. 99-1. The defendant
(generously) considered this document dump as a brief in opposition to the
motion to dismiss, and filed its reply. Dkt. No. 100. As of May 1, 2019—the
date the defendant filed its reply—the motion to dismiss was fully briefed, and
all that is left is for the court to rule on that motion.
But on May 8, 2019, the plaintiff filed a motion to compel evidence. Dkt.
No. 101. This “motion” reiterates all the frivolous arguments the court rejected
in its March 21, 2019 order. Not two weeks later, the plaintiff filed this same
motion again. Dkt. No. 102. On May 22, 2019, the plaintiff filed a motion for
temporary restraining order and immediate injunctive relief. Dkt. No. 103. He
asserted that the defendant had notified him of its intent to accelerate his loan,
and had threatened foreclosure if he did not cure the default. Id. He alleged
that the “judge in this case”—the court can’t tell whether he means this court,
or the judge in the state-court case—had allowed the case to proceed “to a
stage placing Plaintiff’s property, health and life at risk,” and alleged that “the
judge and defendants are cooperating to drive Plaintiff into receivership and
destitution for making a case against fraudulent lender practices and now
must become victim to same.” Id.
Today, the court received from the defendant a renewed request for
sanctions. Dkt. No. 104. The defendant argues that the documents the plaintiff
4

has filed in the last two weeks violate the court’s order telling the plaintiff that
he could not file anything else until he heard from the court. Id. at 1. Most
concerning, the motion alleges that the plaintiff has recorded with the Racine
County Register of deeds a $4,014,012 notice of lien against Planet’s CEO,
Michael Dubeck and its lawyer, Mark Clauss (both of whom the court
dismissed as defendants back in March). Id.; Dkt. No. 104-1. The notice
indicates that the plaintiff is trying to place a lien on the property of Dubeck
and Clauss. Id. at 2. The defendant indicates that there are other documents
“of record” that harm it, such as outstanding UCC financing statements, a
“recorded ‘Correction Instrument’ appointing Judge Pepper as [the plaintiff’s]
personal trustee,” and “a UCC Financing Statement saying the United States of
America owes [the plaintiff] $900,000,000,000.00.” Dkt. No. 104 at 2. The
defendant asks the court to enter an order “in a form that [Planet] can record
with the register of deeds invalidating the $4.14M liens against Planet’s
personnel and one of its attorneys” and “invalidating [the plaintiff’s]
appointment of Judge Pepper as his trustee.” Id. at 3. The defendant asks the
court to make these orders in rem so as to bar the plaintiff from filing them
again in the future, to grant the defendant its fees and costs and to dismiss the
case with prejudice. Id.
The court will dismiss the plaintiff’s motions to compel and the motion
for injunctive relief. As noted above, the motions to compel contain the same
assertions that this court dismissed in March. As for the request for injunctive
relief, the plaintiff has not demonstrated the factors required to obtain
5

injunctive relief in federal court—a reasonable likelihood of success on the
merits of his case, no adequate remedy at law and irreparable harm. See, e.g.,
Roland Machinery Co. v. Dresser Indus., Inc., 749 F.2d 380 (7th Cir. 1984).
As for the defendant’s motion for sanctions, the time has come for the
court to consider that request. The court has assumed for some time now that
the plaintiff may struggle with health or mental health issues, given the nature
of his filings. It has tried to give him an opportunity to state a valid federal
claim. It has tried to keep in mind that he is not a lawyer and may not
understand the rules that govern federal litigation or the relevant law. It has
tried to assume that the plaintiff is acting in good faith, and simply struggles
with issues that many people who represent themselves confront. But the
plaintiff now has re-filed pleadings that the court expressly dismissed, despite
the court’s order dismissing those claims. Much more concerning, he has taken
legal action against the defendant’s CEO and its lawyer, private citizens who
are not parties to this lawsuit and who are doing their jobs. He has tried to
place liens on Mr. Dubeck’s home and other property, and on Mr. Clauss’s
home and other property. This action is personal, vindictive and abusive.
The court is going to hold a hearing at the date and time it provides
below. It will require the plaintiff to appear at this hearing. The court is
formally giving the plaintiff notice that at this hearing, it will consider whether
to use its inherent authority to sanction the plaintiff for failing to follow the
court’s March 21, 2019 order. See Fuery v. City of Chi., 900 F.3d 450, 464 (7th
Cir. 2018) (“A district court may impose sanctions under its inherent authority
6

‘where a party has willfully abused the judicial process or otherwise conducted
litigation in bad faith.’”). The plaintiff must be prepared to explain to the court
at this hearing why the court should not sanction him for filing documents
making arguments the court already has rejected, for filing duplicative motions
and for abusing the litigation process by trying to place a lien on the homes of
the defendant’s CEO and its lawyer. If the plaintiff does not appear for this
hearing, he may face sanctions for failing to comply with this court’s order to
appear. Those sanctions may include, but are not limited to, dismissal of this
case and monetary penalties.
As for the defendant’s request that the court issue in rem orders
invalidating the lien and the other documents the plaintiff has filed in courts
other than this one, the defendant provides no authority allowing a federal
district court to invalidate a lien filed in state court, or for a district court to
order in rem relief. The court will require that, before the hearing date, the
defendant provide the court with authority supporting its requests in this
regard.
Finally, between now and the date of the hearing, the court will consider
the defendant’s motion to dismiss the complaint under Fed. R. Civ. P. 12(b)(6)
and will be prepared to rule on that motion at the hearing, if necessary.
The court DENIES the plaintiff’s motion to compel evidence. Dkt. No.
101.
The court DENIES the plaintiff’s motion to compel evidence. Dkt. No.
102.
7

The court DENIES the plaintiff’s motion for temporary restraining order
and immediate injunctive relief. Dkt. No. 103.
The court ORDERS that by the end of the day on June 4, 2019, the
defendant shall provide the court with authority demonstrating that this court
has the authority to invalidate a state-court lien or to order the Department of
Financial Institutions to invalidate UCC statements.
The court ORDERS that the parties shall appear in person on June 6,
2019 at 10:30 a.m. in Room 222 of the federal courthouse, 517 East
Wisconsin Avenue, Milwaukee, Wisconsin 53202, to show cause why the
court should not sanction the plaintiff for violating the court’s orders and
engaging in abusive litigation practices. If the plaintiff fails to appear at this
hearing, he may be subject to sanctions for failing to comply with this order,
including dismissal of this case and monetary sanctions.
Dated in Milwaukee, Wisconsin this 23rd day of May, 2019.
BY THE COURT:
____________________________________
HON. PAMELA PEPPER
United States District Judge

8