von Germeten v. Planet Home Lending LLC

Filing 96

ORDER signed by Judge Pamela Pepper on 3/21/2019. 53 Plaintiff's motion for declaratory judgment DENIED. 61 Defendant's motion for sanctions DENIED. 63 82 Plaintiff's motions to quash DENIED. 69 Plaintiff's motion for set tlement DENIED. 73 75 76 Plaintiff's motions for court of special equity DENIED. 87 Plaintiff's motion for immediate injunctive relief DENIED. 89 Plaintiff's motion for judgment DENIED. 94 Defendant's motion for sanction s under Rule 11(c) DENIED. 95 Plaintiff's motion to produce evidence and mandatory counter-claim DENIED. Defendants Michael Dubek, Jeffrey Bergida and Mark A. Clauss DISMISSED. Defendant to file responsive pleading. Parties may not begin discovery until the court enters scheduling order setting deadlines for discovery and dispositive motions. Plaintiff may not file any documents of any kind until further order of the court. (cc: all counsel, via mail to Dean von Germeten)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DEAN-RICHARD VONGERMETEN,
Plaintiff,
v.

Case No. 17-cv-167-pp

PLANET HOME LENDING, LLC,
MICHAEL DUBECK, JEFFREY BERGIDA,
and MARK CLAUSS,
Defendants.

ORDER SCREENING AMENDED COMPLAINT (DKT. NO. 60), DISMISSING
DEFENDANTS DUBECK, BERGIDA AND CLAUSS, DENYING PLAINTIFF’S
MOTION FOR DECLARATORY JUDGMENT (DKT. NO. 53), DENYING
DEFENDANT’S MOTION FOR SANCTIONS (DKT. NO. 61), DENYING
PLAINTIFF’S MOTIONS TO QUASH (DKT. NOS. 63, 82), DENYING
PLAINTIFF’S MOTION FOR SETTLEMENT (DKT. NO. 69), DENYING
PLAINTIFF’S MOTIONS FOR A COURT OF SPECIAL EQUITY (DKT. NOS. 73,
75, 76), DENYING PLAINTIFF’S MOTION FOR IMMEDIATE INJUNCTIVE
RELIEF (DKT. NO. 87), DENYING PLAINTIFF’S MOTION FOR JUDGMENT
(DKT. NO. 89), DENYING DEFENDANT’S MOTION FOR SANCTIONS UNDER
RULE 11(c) (DKT. NO. 94) AND DENYING PLAINTIFF’S MOTION TO
PRODUCE EVIDENCE AND MANDATORY COUNTER-CLAIM (DKT. NO. 95)

The plaintiff is representing himself. On January 29, 2018, the court
dismissed the plaintiff’s original complaint at the screening stage, finding that
he had not stated a claim for federal relief. Dkt. No. 52. The court ordered the
plaintiff to file an amended complaint by March 30, 2018. Id. The plaintiff did
so on February 27, 2018. Dkt. No. 60. Before the court could screen the
amended complaint, the plaintiff filed numerous notices, letters and motions.
See Dkt. Nos. 62-95. This order screens the amended complaint, denies the
outstanding motions and discusses next steps.
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I.

BACKGROUND
A.

Original Complaint

The plaintiff filed his original complaint on February 6, 2017. Dkt. No. 1.
While the complaint awaited screening, the only defendant—Planet Home
Lending, LLC—filed a motion to dismiss the case for failure to state a claim.
Dkt. No. 13. The plaintiff responded with a motion for summary judgment, dkt.
no. 19, and other documents, see dkt. nos. 21-51.
The court screened the original complaint on January 29, 2018 and
addressed the outstanding motions on the docket. Dkt. No. 52. In finding that
the complaint did not state a claim, the court stated that
[e]ven construing the plaintiff’s complaint liberally, the court finds
that the complaint does not state a cause of action for which a
federal court may grant relief. On page five of the complaint form,
under section C., “Jurisdiction,” the plaintiff marked the box that
says, “I am suing for a violation of federal law under 28 U.S.C.
§1331.” Dkt. No. 1 at 5. But nowhere in the complaint does he
mention any federal laws. In the letter he attached to the
complaint—the letter he wrote to the defendant—the plaintiff
mentions RESPA, the FDCPA, and TILA, but his complaint does not
refer to any of those statutes. The complaint does not explain which
of those statutes this particular defendant violated, or what actions
this particular defendant took that violated any provisions of any of
those statutes (or any others). Rather, he makes general assertions
that he has learned that “banks”—in general—are engaging in
certain lending practices. He also states that he has “reason to
believe” that the defendant is not a bona fide creditor; the court
suspects that he means that while he may owe money to someone
on his loan, he doesn’t believe the defendant can prove that he owes
that money to the defendant.
In fact, the plaintiff does not ask this court to decide whether
the defendant violated a federal law at all. Instead, he asks the court
to conduct a “civil administrative process,” to assist him in obtaining
proof that the defendant owns his mortgage debt. He asks that, if
the defendant is not able to prove “via requested documents that
they are a qualified creditor to whom [his] mortgage loan is owed,”
the court issue an order requiring the defendant to “cease & desist
all collection activity immediately, including any/all threat of
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foreclosure,” to prohibit the defendant from selling the loan and to
declare him the free and clear owner of the home. Dkt. No. 1 at 5.
Federal courts decide disputes between parties. If a person
with a mortgage loan believes a lender has violated some specific
provision of RESPA or the FDCPA or TILA, that person may file a
lawsuit making that allegation (and the lender may defend against
it). But without a specific dispute between this plaintiff and this
defendant over a specific violation of federal law, the federal district
court does not have the authority to open up an administrative
proceeding to decide whether the defendant owns the plaintiff’s loan.
The plaintiff asserts that he has been making his mortgage
payments and that his loan is in good standing. He seems to have
brought this lawsuit solely because he came across information that
leads him to believe that there are some lenders who claim to own
loans that they don’t own, and he wants to make sure that isn’t the
case with his loan. That is not a “dispute” that the federal court
system can resolve.
There are procedures that give borrowers the ability—even the
right—to find out who owns a mortgage loan. The plaintiff appears
to be familiar with at least some of those procedures. He knows
about the QWR (“qualified written request”) procedure under
RESPA, because he attempted to make a QWR, dated January 18,
2017, to the defendant. The certified mail receipt he attached to the
complaint shows that the lender received that request at its office in
Dallas, Texas on January 22, 2017, dkt. no. 1-1 at 7, and he
attaches a letter from the defendant, dated January 24, 2107, in
which the defendant acknowledges receipt of the request and
informs him that they are reviewing his loan file, dkt. no. 1-1 at 8.
Rather than waiting for the QWR process to play out, the plaintiff
filed this federal complaint on February 6, 2017—less than two
weeks after the defendant wrote to him that it was reviewing his loan
file.
On March 17, 2017, the court received a letter from the
plaintiff. Dkt. No. 7. In it, he told the court that the administrative
process he’d asked the court to preside over was finished and that
the defendant had not provided him “any documentation as required
by law to prove or establish themselves as a bonafide creditor.” Id.
Based on this alleged failure, he asked the court to order the
defendant to stop “all further collection matters,” order the
defendant to return all his payments to him, grant him damages for
“violating Fair Credit Lending Practices” and order the defendant to
grant him free and clear title to the property. Id. Oddly, he attached
to this letter a letter from the defendant, dated March 3, 2017—two
weeks earlier—in which the defendant informed him that it was still
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reviewing his loan file, and that it would respond to him once it had
finished. Dkt. No. 7-1 at 5.
On the same day—March 17, 2017—the court received a
second letter from the plaintiff. Dkt. No. 8. In this letter, he informed
the court that the defendant had responded to his request and
offered to make the note available for him to inspect, but the plaintiff
stated that the terms of inspection the defendant had offered were
not acceptable to him. Id. In this letter, he asked the court to order
the defendant to “send wet ink promissory note to Racine County
Clerk.” Id. The plaintiff has filed numerous other documents in the
ensuing months—some of them motions, some simply copies of
documents or correspondence.
It is possible that since filing his complaint on February 6,
2017, the plaintiff has identified a violation of one of the statutes he
referenced in his letters to the defendant. The court will give the
plaintiff an opportunity to amend his complaint, to allege some
specific violation of federal law that he believes this defendant has
committed.
Dkt. No. 52 at 6-10. The court warned the plaintiff that his amended complaint
must stand on its own—in other words, it would take the place of the original
complaint. Id. at 10. The court explained that there was nothing more for the
plaintiff to file at that point but the amended complaint. Id. at 11.
B.

Amended Complaint

The amended complaint is twenty-one pages long. Dkt. No. 60. The
plaintiff added three defendants to the caption: Michael Dubeck, Jeffrey
Bergida and Mark Clauss. Id. at 1. The plaintiff appears to allege that Michael
Dubeck is the CEO of Planet Home Lending, LLC, and that both he and the
corporation reside in Connecticut. Id. The plaintiff alleges that defendant
Bergida resides in Florida, but does not explain who Bergida is or what position
he holds.1 Id. The plaintiff alleges that defendant Clauss resides in Wisconsin.

In May 2017, the plaintiff filed a letter addressed to “Jeffrey R. Bergida, Esq.,
Sr. Counsel & Compliance Officer, Planet Home Lending Co.” Dkt. No. 10. He
provided another letter to Bergida, addressing him by the same title, with his
1

4

Id. The amended complaint does not explain the role that Clauss played in the
plaintiff’s allegations, but the docket indicates that defendant Mark Clauss is
the attorney who has represented Planet Home Lending in this case since it
filed a motion to dismiss in May of 2017. See Dkt. No. 13.
As recounted above, the court’s previous screening order required the
plaintiff to cite specific provisions of federal law that he believed the defendants
had violated. Pages two through five of the amended complaint appear to be his
attempt to do so. The plaintiff starts with this declaration:
PLAINTIFF CLAIMS DECEPTIVE BUSINESS PRACTICES, FALSE
BILLING,
FRAUD
IN
THE
FACTUM/CONCEALMENT,
MISREPRESENTATION, MISSUSE OF THE MAILS, UNFAIR
SURPRISE UNJUST ENRICHMENT, AND SEEKS RESTITUTION IN
TERMS
MONETARY
AND
EQUITY,
CANCELLATION
OF
DEFENDANT’S ATTORNEY FEES, MORTGAGE AGREEMENT SETOFF FREE & CLEAR TITLE TO SAID PROPERTY PLUS MONETARY
RECOUPMENT; REQUESTING GSA BONDS WITH INSTRUCTIONS
TO IDEMNIFY MY EN LEGIS
Dkt. No. 60 at 2. He follows this declaration with a “relevant statutes” section.
Id. The plaintiff reproduces the text of various federal statutes: “18 U.S. Code
§1005 – Bank Entries, reports and transactions,” “§1341 Frauds and swindles,”
“§1346 (2011) Definition of ‘scheme or artifice to defraud,’” “18 U.S. Code
§1349 – Attempt and conspiracy,” “Mail Fraud (18 USC 1341, 1342, & 1345;
39 USC 3005 & 3007),” “31 U.S. Code § 1341(a)(1)(A) & (B) – Limitations on
expending and obligating amounts,” “18 USC §1961 (RICO),” “15 U.S. Code
§1641(e)(2),” “15 U.S. Code §1641(f)(1)(f),” “12 CFR §230.4(a)(1) Disclosure of
Account opening,” “18 U.S. Code §1831n – Accounting objectives, standards,
and requirements (GAAP),” “15 U.S. Code §1692(f) – Unfair practices,” “15 USC

amended complaint. Dkt. No. 60-2 at 1. The court does not know whether
Bergida is, in fact, an officer of Planet Home Lending Company.
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1692e(2)(A)- False or misleading representations,” “12 USC 2605(k) RESPA,”
and “WI 428.103.” Id. at 3-5.
Next comes what appears to be the facts section. The plaintiff alleges that
he “began QWR inquiry on January 18, 2017 to determine defendant’s status
as bonafide payee to mortgage documents via QWR per 12 U.S.C. Section
2605(e)[.]” Id. at 5. He says that the defendant sent “a letter of March 3” but
that he had not given license to “exceed the statutory window of an
administrative process, max 45 days per Dodd-Frank Act, Section 1463(c).” Id.
The amended complaint states, “Ability to actually view alleged original note
did not take place until late June 20, 2017(1), a full 5 months, far exceeding
the 45 days for meaningful disclosure required by law.” Id.
Next, the amended complaint alleges that the plaintiff’s QWR request
asked “who the owner of the obligation was,” but that the defendant “treated”
that as “irrelevant.” Id. The plaintiff alleges that the defendant was obligated to
respond “per 15 U.S. Code §1641(a)” and that “Disclosures should have
occurred under 15 U.S. Code §1641(e)(2)(A).” Id. He says that he asked the
defendant to “prove their standing with legal right to demand debt payment as
creditor,” and that, to do so, he had requested to see a “wet-ink signature of
the original note.” Id. The plaintiff alleges that he eventually viewed “a
document alleged to be the original” at Gray & Associates, LLP in New Berlin,
Wisconsin, but that he “challenges the validity of the notice to be proved by
Affidavit under penalty of perjury and forensic examination.” Id. at 7.
Next, the plaintiff alleges that attorney’s fees are being added to his
monthly billing statements and that “no contract offer or acceptance to pay
attorney fees was entered into by Plaintiff.” Id. at 7. He points to paragraphs
seven and twenty-one of the mortgage security agreement and alleges that “Par.
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21 citation of WI 428 is limited and does not allow defendant to attach legal
fees to a monthly mortgage statement or even bill for services.”2 Id. at 8. He
states that he did not agree to pay the fees for legal services and that his
contract is unconscionable under Wis. Stat. §428.106. Id. at 9-10. He says that
adding attorney’s fees to his monthly mortgage statements violates 15 U.S.C.
§1692f and §1692e(2)(A) because it is a false representation of the amount of
the debt; he alleges that the defendant is trying to collect an amount not
authorized by the agreement creating the debt. Id. at 9.
Amidst his allegations that the defendant has improperly added
attorney’s fees to his statement, the plaintiff also asserts that because
“Defendant and legal counsel work as a team,” their behavior toward the
plaintiff “constitute[s] a pattern of RICO violation[s] where parties in this case
conspire to deprive Plaintiff of his property using predatory, bully billing and
collection tactics.” Id. at 9. He says this practice is also a “misuse of the mails.”
Id. He cites criminal mail fraud statutes. Id.
The plaintiff then “challenges the veracity of the alleged original note held
by defendant[.]” Id. at 10. He says that the mortgage documents were “robosigned, never sealed in Plaintiff’s presence, evidenced by unnotarized copies in
plaintiff’s possession.” Id. He states that “there existed fraudulent concealment
and in the factum and inducement in the original local documents” because,
he alleges, certain facts were not disclosed to him. Id. He “demands to see a
chain of custody that incorporates defendant’s standing with all relevant
parties, assignments, owner(s), beneficiaries, payments and conveyances.” Id.

Attached to the plaintiff’s amended complaint is a document that looks to be
the “mortgage agreement” to which the plaintiff refers. Dkt. No. 60-2 at 34. The
amended complaint does not reference this attachment.
2

7

Finally, the plaintiff notifies the court—as he did in his original
complaint—that “[i]t has come to Plaintiff’s attention that banks and servicers
are engaging in economic practices of deceptive accounting (4,5), similar to
stealing or swindling.” Id. at 11. In support of this argument, the plaintiff
references a single paragraph from the 1961 version of a publication from the
Federal Reserve Bank of Chicago called “Modern Money Mechanics: a workbook
on deposits, currency and bank reserves” authored by Dorothy M. Nichols. Id.
at 12, Dkt. No. 60-1 at 6. He says that he offered to settle with “defendant”—he
does not say which one—by “offering a novation dated June 22, 2017 to
overlook systemic fraud of defendant’s industry, granting permission to
leverage the note in exchange for defendant returning free and clear title and to
stop billing plaintiff.” Dkt. No. 60 at 13. He says the defendant did not respond,
and has “refused to honor that agreement.” Id. He also says that he sent the
defendant a “lawful Bill-of-Exchange dated July 18, 2017 for full pay-off of said
alleged ‘loan’ as a tax credit which defendant retained and did not return for
cause or cure, which under UCC 4-603 qualifies as an acceptance,” but the
defendant did not respond to this, either. Id.
The amended complaint concludes by saying that its intent “is recovery
of damages, settlement and closure of said alleged mortgage ‘loan,’ attendant
fees and charges.” Id. at 14.
C.

Other Filings

Between the time the court issued the January 29, 2019 screening order
and the time the plaintiff filed his signed amended complaint, he filed six
documents (including an unsigned amended complaint). Since the court
received the signed amended complaint on February 27, 2018, the plaintiff has
filed thirty-one letters, motions, affidavits and other documents.
8

On the day that the court issued its January 29, 2018 screening order,
the plaintiff filed a motion for declaratory judgment asking the court to prevent
the defendant from attaching attorney fees to his billing statements. Dkt. No.
53. Along with the motion, the plaintiff filed an affidavit attesting that all his
accounts are prepaid. Dkt. No. 54.
Two days later, the plaintiff filed a fourteen-page “Response to
Defendant’s Original Request for Declaratory Judgement and Motion to
Dismiss.” Dkt. No. 55. This document appears to be a response to Planet Home
Lending’s motion to dismiss, dkt. no. 13, which the defendant had filed eight
months earlier and which the court had decided in the January 29, 2018 order,
dkt. no. 52 at 13.
On February 12, 2018, the plaintiff filed an unsigned complaint. Dkt. No.
56. The February 27, 2018, signed amended complaint supersedes that
document (and his original complaint).
On February 13, 2018, the court received a letter from the plaintiff. Dkt.
No. 57. The letter did not ask the court to do anything. It contained statements.
The next day, the court received from the plaintiff a document entitled “UCC
FINANCING STATEMENT.” Dkt. No. 58.
A little over two weeks after the court received the signed, amended
complaint, defendant Planet Home Lending filed a motion for sanctions under
Fed. R. Civ. P. 37. Dkt. No. 61. The motion alleged that the plaintiff violated the
court’s January 29, 2018 order by filing a state court case and by filing tax
form 1099-A’s with the IRS. Id. OnMarch 20, 2018, the court received from the
plaintiff a motion to quash the defendant’s motion for sanctions. Dkt. No. 63.
Between March 23 and August 27 of 2018, the court received seventeen
filings from the plaintiff. Dkt. Nos. 64-80. Several the filings are letters, like the
9

letter the court received on February 13, 2018—they consist of declarations. In
one letter, dated March 21, 2018, the plaintiff stated that he “solicit[ed] the
court’s assistance to effect [a] set-off;” the plaintiff appeared to be asking the
court to order that the mortgage and promissory notes be treated as debt
instruments/government obligations to be applied to any tax liabilities he may
have had. Dkt. No. 64. Other letters made no requests, simply stating long lists
of declaratory facts or citing statutes or regulations; still others were not
addressed to the court. Dkt. Nos. 65-67, 77. Almost all the letters had pages of
attachments—one as long as ninety-four pages.
Several of the filings are affidavits of various sorts—an affidavit of
mailing, an affidavit stating various laws, an affidavit acknowledging and
accepting a warranty deed. Dkt. Nos. 70, 71, 74, 78, 79. One filing is nothing
but documents (accompanied by a request for a hearing, which the plaintiff
included in many of his filings). Dkt. No. 68. One filing is a notice to the court
that the plaintiff had received a billing statement. Dkt. No. 72. One document
is titled, “Final Notice of Default with Opportunity to Cure;” it is addressed to
defendants Dubeck and Clauss. Dkt. No. 80.
Four of the documents the plaintiff filed are motions, seeking action from
the court: Motion for Settlement and Closure of Case and Account, dkt. no. 69,
and three motions “For a Court of Special Equity Via Security Deposit,” dkt.
nos. 73, 75, 76. On September 24, 2018, the defendant filed a single response
to all these motions. Dkt. No. 81. On February 27, 2019, the defendant
supplemented that omnibus response. Dkt. No. 91. While it is docketed as a
letter, the plaintiff filed a reply to the defendant’s response on March 4, 2019.
Dkt. No. 92.

10

The plaintiff has filed eleven other documents since October 1, 2018.
There are more letters—one relating to an indemnity bond, dkt. no. 85, and two
relating to a postal money order the plaintiff says he sent to Planet Home
Lending to settle the case, dkt. nos. 86, 88. There is a letter addressed to
defendant Clauss. Dkt. No. 90. There is a notice to Planet Home Lending,
containing the plaintiff’s allegation that Planet’s continuing to bill him is “false
billing” that could “incur additional charges.” Dkt. No. 93. He has filed four
more motions: a Motion to Quash Response, dkt. no. 82; a Motion for
Immediate Injunctive Relief and Notice of Contract Violation, dkt. no. 87; a
Motion for Judgment and Notice of Administrative Default, dkt. no. 89; and a
Motion for Defendants to Produce Accounting Evidence and Mandatory
Counter-Claim to Defendants Motion Per FRCP 13, dkt. no. 95.
Not surprisingly, the defendant has filed another motion for sanctions,
and has requested a hearing. Dkt. No. 94.
II.

ANALYSIS
A.

Screening
1.

Standard

Section 1915(e)(2)(B) of Title 28 requires a court to dismiss a case filed by
an unrepresented plaintiff at any time if the court determines that it “(i) is
frivolous or malicious; (ii) fails to state a claim upon which relief may be
granted; or (iii) seeks monetary relief against a defendant who is immune from
such relief.”
A claim is legally frivolous when it lacks an arguable basis either in law
or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Felton v. City of Chi.,
827 F.3d 632, 635 (7th Cir. 2016). At this stage, the court accepts the factual
allegations in the complaint as true and draws all reasonable inferences in
11

favor of the plaintiff. Hotchkiss v. David, 713 F. App’x 501, 505 (7th Cir. 2017).
The Supreme Court has explained that a court may dismiss a claim as
factually frivolous if it is “clearly baseless,” “fanciful,” “fantastic,” delusional,”
“irrational,” or “wholly incredible.” Felton, 827 F.3d at 635 (citing Denton, 504
U.S. at 32-33). A court may dismiss a claim as legally frivolous if it is “based on
an indisputably meritless legal theory.” Id. The court, however, may not
dismiss a claim as frivolous simply because it finds that “the plaintiff’s
allegations are unlikely.” Johnson v. Stovall, 233 F.3d 486, 489 (7th Cir. 2000)
(citing Denton, 504 U.S. at 33).
To state a claim under the federal notice pleading system, the plaintiff
must provide a “short and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). A plaintiff does not need to plead
specific facts, but his statement must “give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). A complaint that offers “labels and conclusions” or “formulaic
recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state a claim,
a complaint must contain sufficient factual matter, accepted as true, “that is
plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “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. (citing Twombly, 550 U.S. at 556). The complaint allegations “must
be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).

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Courts liberally construe the pleadings of “pro se” litigants (that is, those
litigants who proceed without a lawyer), and they hold pro se complaints,
however inartfully pleaded, to less stringent standards than formal pleadings
drafted by lawyers. Erikson v. Pardus, 551 U.S. 89, 93 (2007). At the same
time, “‘Rule 8(a) requires parties to make their pleadings straightforward, so
that judges and adverse parties need not try to fish a gold coin from a bucket of
mud.’” Standard v. Nygren, 658 F.3d 792, 800 (7th Cir. 2011) (quoting United
States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir.
2003)).
2.

Defendants Dubeck, Bergida and Clauss

The caption of the plaintiff’s amended complaint names four
defendants—Planet Home Lending, LLC, Michael Dubeck, Jeffrey Bergida and
Mark Clauss. Dkt. No. 60 at 1. The facts section of the amended complaint,
however, consistently refers to “defendant”—in the singular form. As far as the
court can tell, when the plaintiff says “defendant,” he means Planet Home
Lending, LLC. Apart from the caption’s reference to Dubeck as the CEO of
defendant Planet Home Lending, LLC, the plaintiff has not identified who these
individuals are, what role they play in his allegations or why he believes they,
as individuals, are liable to him. He does not describe any actions that these
individuals took to violate federal and/or state law. The amended complaint
does not even mention these individuals anywhere except in the caption.
Because the plaintiff includes no allegations against the individual defendants,
the court will dismiss defendants Michael Dubeck, Jeffrey Bergida and Mark
Clauss from the case.

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3.

Frivolous statutory claims against Planet Home Lending

In its January 29, 2018 order, the court told the plaintiff that it was
giving him an opportunity to amend the complaint, “to allege some specific
violation of federal law that he believes [Planet Home Lending] has committed.”
Dkt. No. 52 at 10. It appears that the plaintiff’s response to this instruction
was to fill the first several pages of the amended complaint with references to,
or reproductions of the text of, no fewer than fifteen federal laws, a federal
regulation and one Wisconsin statute. Dkt. No. 60 at 2-5. Most of the statutes
the plaintiff listed are criminal statutes—making false statements under 18
U.S.C. §1005, various kinds of fraud under 18 U.S.C. §§1341, 1342 and 1345,
conspiracy to defraud under 18 U.S.C. §1349, racketeering under 18 U.S.C.
§1961, generic conspiracy under 18 U.S.C. §371, 18 U.S.C. §42 (which the
plaintiff identifies as “EXTORTIONATE CREDIT TRANSACTIONS,” but which
actually prohibits the importation or shipment of invasive or injurious animals
into the United States). Id. at 2-4. But the plaintiff does not have a private right
of action under any of these statutes. McGee v. Nisson Motor Acceptance Corp.,
619 F. App’x 555, 555 (7th Cir. 2015). To the extent that the plaintiff attempts
to make claims against Planet Home Lending under these criminal statutes,
those claims are frivolous. Id.
He also cites 39 U.S.C. §§3005 and 3007. Dkt. No. 60 at 3. Section 3005
is a law that allows the U.S. Postal Service to take certain actions to prohibit
the use of the United States mails to conduct fraudulent advertising or lottery
schemes. Section 3007 allows the Postal Service to ask a district court for
permission to detain mail as part of such actions. The plaintiff has no private
right of action under these statutes, and to the extent that he tries to bring

14

claims against Planet Home Lending under these statutes, those claims are
frivolous.
The plaintiff mentions that he believes that he is an issuer of a security
sold publicly as a mortgage-backed security and says that he can “file a 1099
OID per Title 26 § 1275 for recovery of proceeds, making the holder subject to
unpaid taxes.” Dkt. No. 60 at 4. Section 1275 of Title 26 is a definition statute
for the portion of the Internal Revenue Code that governs bonds and other debt
instruments. The plaintiff cannot “sue”—or file documents with the IRS, even—
under a definition statute. If this is a claim, it is frivolous.
Next, the plaintiff lists 31 U.S.C. §§1341(a)(1)(A) and (B). This statute is
known as the “Anti-Deficiency Act;” it prohibits “[a]n officer or employee of the
United States Government or of the District of Columbia” from making or
authorizing expenditures that exceed the amount appropriated for the
expenditure. See Salazar v. Ramah Navejo Chapter, 567 U.S. 182, 197 (2012).
Planet Home Lending is not an officer or employee of the United States
Government or the District. To the extent that the plaintiff is attempting to
bring claims against Planet Home Lending under this statute, those claims are
frivolous.
The plaintiff lists 12 U.S.C. §1831n. Dkt. No. 60 at 4. This is part of the
Financial Institution Reform, Recovery and Enforcement Act of 1989 (FIRREA).
FIRREA gives the Federal Deposit Insurance Corporation (FDIC) the “statutory
authority to administer claims against a depository institution for which the
FDIC is receiver.” Farnik v. F.D.I.C., 707 F.3d 717, 720-21 (7th Cir. 2013).
“Courts lack jurisdiction to hear such claims unless plaintiffs first present
them to the FDIC.” Id. The plaintiff does not indicate that he has made any

15

claims against Planet with the FDIC. That means that this court does not have
jurisdiction to hear a FIRREA claim against Planet.
The plaintiff also lists a federal regulation—12 C.F.R. §230.4(a)(1). Dkt.
No. 60 at 4. This regulation is part of Regulation DD, and was promulgated
under the Truth in Savings Act (TISA), 12 U.S.C. §§4301-4313. Cobb v.
Monarch Finance Corp., 913 F. Supp. 1164, 1170 (N.D. Ill. 1995). The plaintiff
has not listed the Truth in Savings Act in his laundry list of statutes. Even if he
had, it does not apply to the plaintiff’s allegations about his mortgage and
promissory note. Congress explained that the purpose of the Truth in Savings
Act was to “require the clear and uniform disclosure of the rates of interest
which are payable on deposit accounts by depository institutions and the fees
assessable against deposit accounts, “so that consumers can make a
meaningful comparison between the competing claims of depository
institutions with regard to deposit accounts.” 12 U.S.C. §4301(b). The plaintiff
is not alleging that he was trying to decide where to open a bank account, and
that because Planet Home Lending did not give him clear information about its
interest rates and fees on bank accounts, he could not make an accurate
comparison of Planet’s rates and fees with the rates and fees of other banks.
This regulation does not apply.
The court understands that the plaintiff has a theory that the American
banking system is fraudulent. He states that theory as follows:
It has come to Plaintiff’s attention that banks and servicers are
engaging in economic practices of deceptive accounting . . . similar
to stealing or swindling. The process begins by the bank opening a
transaction account in the name of the depositor but without the
depositor’s knowledge. 2. Depositing the promissory note into
depositor’s transaction accounts, 3. Crediting the account with a
value of money for the face value of the promissory note, again
without informing the depositor, 4. Representing and discounting
the note as of zero worth to the depositor, to obtain its value for free,
16

creating the perception of a “loan” in reverse direction to which it
actually occurred, and then crediting the fraudulently structured
payments back to themselves, to make more loans, reward
investors, etc. using the depositor’s credit, making note depositors
debt sureties to those notes, without compensation. authorization
or full disclosure, which voids any contract. . . . The consumer
(credit) “loan” occurs on the receivables side of the ledger and one
set of books, however, the liability side of books should show cash
credit in favor of Plaintiff for deposit of his note, lending it to the
bank, according to 12 U.S.C. 1813(L)(1) and GAAP/GAAS. Generally
Accepted Accounting Practices . . . are advocated by the Financial
Accounting Standards Board (FASB) . . . .
Dkt. No. 60 at 11-12. He mentions Regulation DD in connection with this
theory.
The plaintiff does not allege that this specific defendant, Planet Home
Lending, engaged in the practice he alleges above. He indicates only that
“banks and servicers” engage in the practice. Assuming for the sake of
argument that the plaintiff had alleged that Planet was engaged in this
practice, he appears to be trying to argue that this practice is the same thing
as opening up a consumer depository account, and that Planet would have had
an obligation to tell him about its interest rates and fees so that he could shop
around for another bank. The argument borders on the absurd. The
disclosures that Planet was required to make to the plaintiff were the
disclosures required by statutes governing the issuance of mortgages, not
statutes governing the disclosure of interest rates and fees on consumer
deposit accounts.
The plaintiff’s claims in this regard are the kind of “clearly baseless,”
“fanciful,” “fantastic,” delusional,” “irrational” and “wholly incredible” claims
that this court need not allow to proceed.

17

4.

Other claims against Planet Home Lending

The plaintiff lists provisions of 15 U.S.C. §1641. Dkt. No. 60 at 4. These
are provisions of the Truth in Lending Act (TILA), 15 U.S.C. §1601, et seq. He
lists 15 U.S.C. §1692, a provision of the Fair Debt Collection Practices Act, 15
U.S.C. §1692, et seq. Dkt. No. 60 at 4-5. He lists 12 U.S.C. §2605(k), a
provision of the Real Estate Settlement Practices Act (RESPA), 12 U.S.C. §2601,
et seq. Dkt. No. 60 at 5. Finally, he cites a Wisconsin statute, Wis. Stat.
§428.103(1)(e). Dkt. No. 60 at 5. That statute allows mortgage lenders who hold
a first lien on certain mortgage loans to contract to collect their attorneys’ fees
from the borrower in foreclosure cases.
a.

RESPA Claim

The first line of the facts section of the amended complaint states that
the plaintiff undertook a QWR inquiry on January 18, 2017. Id. at 6. The
amended complaint does not say to whom the plaintiff submitted the QWR, or
whether he submitted it to Planet Home Lending. It does not explain what the
QWR requested. That information was in the plaintiff’s original complaint.3 In
its previous screening order, the court recounted,
The plaintiff’s complaint alleges that he originally took out a home
loan from Flagstar Bank through “Bank of Wisconsin, Kenosha
(defunct).” Dkt. No. 1 at 2. He alleges that the loan was “recently
acquired by the defendant, Planet Home Lending, who told him over
the phone that it had bought his debt or that Flagstar had sold it to
them. Id. He indicates that “last year,” the defendant notified him
that he should “direct [his] monthly payments to them,” and says
that he has done that; he says that his loan is in good standing.”

The court explicitly told the plaintiff that his amended complaint needed to
stand on its own. It wrote: “He may not simply refer the reader of the amended
complaint back to the original complaint, or to any of the many documents he
has filed to date. The amended complaint must stand on its own.” Dkt. No. 52
at 10.
3

18

Dkt. No. 52 at 5. With this context (and because the amended complaint cites
12 U.S.C. §2605 immediately after his sentence on QWR), the court assumes
that the plaintiff’s reference to a “QWR” is a reference to a “Qualified Written
Request,” which is a statutory term defined in RESPA. See 12 U.S.C. §2605.
Dkt. No. 60 at 5. Because the plaintiff cited 12 U.S.C. §2605(e) in his list of
statutes, because he mentions a “QWR,” and because the court knows what it
knows from the original—now superseded—complaint, the court assumes that
the plaintiff is trying to state a claim under RESPA.
“RESPA imposes certain duties on servicers of federally related mortgage
loans.” Perron on behalf of Jackson v. J.P. Morgan Chase Bank, N.A., 845 F.3d
852 (7th Cir. 2017).
As relevant here, the statute requires loan servicers to promptly
respond to a “qualified written request” from a borrower seeking
“information related to the servicing” of his loan or alleging that his
account is in error. § 2605(e)(1)(A)–(B). The Act gives borrowers a
cause of action against a servicer for actual damages suffered “as a
result of” a servicer’s failure to comply with these duties.
§ 2605(f)(1)(A); see also Catalan v. GMAC Mort. Corp., 629 F.3d 676,
681 (7th Cir. 2011). Statutory damages of up to $2,000 are available
if the borrower proves that the servicer engaged in a “pattern or
practice of noncompliance” with its RESPA duties. § 2605(f)(1)(B).
Successful plaintiffs may also recover costs and attorney’s fees.
§ 2605(f)(3).
“[T]he statutory duty to respond does not arise with respect
to all inquiries or complaints from borrowers to servicers.” Medrano
v. Flagstar Bank, FSB, 704 F.3d 661, 666 (9th Cir. 2012). Rather,
the statute covers only written requests alleging an account error or
seeking information relating to loan servicing. “Servicing” is a
defined term, which limits the scope of the loan servicer’s duty to
respond. “Servicing” means “receiving any periodic payments from a
borrower pursuant to the terms of any loan, including amounts for
escrow accounts ..., and making the payments of principal and
interest and such other payments with respect to the amounts
received from the borrower as may be required” by the terms of the
loan. § 2605(i)(3). So a qualified written request can’t be used to
collect information about, or allege an error in, the underlying
19

mortgage loan. Medrano, 704 F.3d at 666–67; see also Poindexter v.
Mercedes–Benz Credit Corp., 792 F.3d 406, 413–14 (4th Cir. 2015).
If a loan servicer receives a valid qualified written request, RESPA
requires it to take the following actions, but only “if applicable”: (A)
“make appropriate corrections in the account of the borrower”; (B)
after investigating the account, “provide the borrower with a written
explanation or clarification” explaining why the account is correct;
or (C) “provide the borrower with ... [the] information requested by
the borrower” or explain why it is “unavailable.” § 2605(e)(2)(A), (B)
& (C); see also Catalan, 629 F.3d at 680. The statute also requires
the servicer to provide the contact information of an employee who
can provide further assistance. § 2605(e)(2)(C).
Id. at 856-57.
The plaintiff has alleged that he made a QWR on January 18, 2017.
Dkt. No. 60 at 6. The court assumes—the amended complaint does not
specifically allege—that the plaintiff sent his QWR to defendant Planet
Home Lending, LLC. Dkt. No. 60 at 6.4 The court can discern that the
plaintiff has alleged three problems with the defendant’s response to the
QWR: (1) the defendant did not respond until more than forty-five days
after the QWR; (2) that the plaintiff could not view the alleged original note
until five months after he made his initial request; and (3) that the
defendant treated his inquiry about the owner of the obligation as
irrelevant. Id. The court does not have a copy of the defendant’s response
to the plaintiff’s QWR. However, liberally construing the plaintiff’s
complaint, he has alleged that the defendant did not properly respond to
his QWR and thus he has stated a claim under RESPA.

Attached to the plaintiff’s original complaint is a letter addressed to Planet
Home Lending. Dkt. No. 1-1 at 1. That letter is dated January 18, 2017. The
court assumes that this document is what the plaintiff refers to as his
“Qualified Written Request.”
4

20

The plaintiff has not provided much of the “who, what, when, where,
why” that helps to notify a defendant and the court about what it is the
plaintiff is claiming. (The court notes here that the plaintiff did not do what the
court asked him to do in its January 29, 2018 order—such as using the court’s
form complaint and including any relevant facts and claims from his original
complaint in any free-standing amended complaint.) Because the court is
required to liberally construe the claims of a plaintiff who is representing
himself, however, the court concludes that the amended complaint alleges that
Planet Home Lending did not properly respond to his QWR, and that he has
stated a claim under RESPA.
b.

TILA Claim

Next, the amended complaint alleges that when the plaintiff asked for the
identity of the owner of the loan, “disclosures should have occurred under 15
U.S.C. 1641(e)(2)(A).” Dkt. No. 60 at 6. This section of the TILA states that “[f]or
purposes of this section, a violation is apparent on the face of the disclosure
statement if—(A) the disclosure can be determined to be incomplete or
inaccurate by a comparison among the disclosure statement, any itemization of
the amount financed, the notice, or any other disclosure of disbursement[.]” 15
U.S.C. §1641(e)(2)(A). Based on the facts the plaintiff has pled, the court cannot
figure out how the defendant has violated this provision of the TILA. The
amended complaint does not allege that the plaintiff received a disclosure
statement. It does not say who he received a disclosure statement from, or
what the disclosure statement said if he did receive one.
But the next provision of the statute, 15 U.S.C. §1641(f)(2), states in
part, “[u]pon written request by the obligor, the servicer shall provide the
obligor, to the best knowledge of the servicer, with the name, address, and
21

telephone number of the owner of the obligation or the master servicer of the
obligation.” 15 U.S.C. §1641(f)(2). This provision seems to apply to the
allegations in the amended complaint that “[i]ncluded in Plaintiff’s QWR was
the request to know who the owner of the obligation was which the defendant
treated as irrelevant[;]” and “Plaintiff requested defendant prove their standing
with legal right to demand debt payment as creditor, producing documents
including but not limited to original wet-ink signed note. The mere providing of
office address and phone numbers under TILA does not prove standing.” Dkt.
No. 60 at 6. At this early stage, the court will allow the plaintiff to proceed on a
TILA claim under 15 U.S.C. §1641(f)(2). See Sanchez v. Onewest Bank, FSB,
No. 11 CV 6820, 2013 WL 139870, at *4 (N.D. Ill. Jan. 10, 2013) (“‘[A] violation
of §1641(f)(2) occurs . . . when the servicer sends an inadequate response to
that request.’”) (quoting Bradford v. HSBC Mortg. Corp., 829 F.Supp.2d 340,
352 (E.D. Va. 2011)).
c.

FDCPA Claim

The amended complaint appears to allege that the original mortgage note
did not allow for the addition of attorney’s fees to the balance of the plaintiff’s
mortgage: “No contract offer or acceptance to pay attorney fees was entered
into by Plaintiff.” Dkt. No. 60 at 7. The amended complaint asserts that
paragraphs two, seven and twenty-one of the “mortgage security Agreement”
address attorney’s fees. Id. The amended complaint asserts that these
provisions required the defendant to “prove lawful creditor status.” Id. The
pleading asserts that the plaintiff
has not contracted with defendant for legal services, has not
asked for title opinions and is not in foreclosure, and did not
ascribe any legal cost for defendants fulfilling their burden
under the law, presuming it to be a tax-deductible business
expense for Defendant, who has sent at least 5 billing
22

statements to which attorney fees were added to monthly
mortgage statement in violation of 15 USC 1692e(2)(A) . . . .
Id. at 9. It also alleges that “[a]dding additional fees on to the monthly mortgage
statement violates 15 USC § 1692f(1) and making a ‘false representation of the
amount . . . of any debt.’ § 1692e(2)(A).” Id.
Construing these allegations liberally, the plaintiff is alleging that by
including attorneys’ fees in his mortgage statements, Planet Home Lending is
attempting to collect a debt that isn’t authorized by the mortgage agreement
and is falsely representing the amount of the debt he owes. On page thirty-four
of one of the plaintiff’s attachments to his amended complaint, there is a
document titled “MORTGAGE.” Dkt. No. 60-2 at 34. The “Mortgage” appears to
be an un-notarized mortgage dated October 31, 2011, issued to borrower
“Dean Von Germeten” by lender “Flagstar Bank, FSB, a Federally Chartered
Savings Bank,” and indicating that the borrower owes the lender $30,000.00
dollars. Id. at 34-38. Paragraph 21 is titled “Attorneys’ Fees,” and says that if
the document is “subject to Chapter 428 of the Wisconsin Statutes, ‘reasonable
attorneys’s fees’ shall mean only those attorneys’ fees allowed by that Chapter,”
id. at 37.
The amended complaint does not refer to this attachment, so the court
does not know whether this is the “mortgage security Agreement” to which the
plaintiff refers. But at this early stage, the court will allow the plaintiff to
proceed on a claim that Planet Home Lending has violated the FDCPA by trying
to collect a debt the plaintiff does not owe and by falsely representing the
amount of the debt he owes.
d.

Wis. Stat. §428.103 claim

The final statute listed in the amended complaint is a state-law claim.
Federal courts can exercise “supplemental jurisdiction” over state-law claims if
23

they have jurisdiction over federal claims to which the state-law claims are “so
related . . . that they form part of the same case or controversy under Article III
of the United States Constitution.” 28 U.S.C. §1367(a).
As the court noted, Wis. Stat. §428.103 allows mortgage lenders to
contract with borrowers, or charge borrowers, for attorneys’ fees under certain
conditions. In the case of mortgage loans made after November 1, 1981, the
statute does not apply unless the amount of the loan was $25,000 or less. Wis.
Stat. §428.101(3).
The amended complaint insists that if the plaintiff did contract with
Planet Home Lending to be obligated for attorneys’ fees, such a contract is
unconscionable under Wis. Stat. §428.106(2). Regardless, it does not appear
that this statute applies to the plaintiff. The “mortgage security Agreement”
referenced in the amended complaint indicates that the mortgage was issued in
October 2011 and that the borrower (the plaintiff) owed the lender $30,000.
Dkt. No. 60-2 at 34. For mortgages issued after 1981, Wis. Stat. §428.103
applies only to those for which the amount financed was $25,000 or less. The
court will not allow the plaintiff to proceed on this claim.
B.

Remaining Motions
1.

Plaintiff’s Motions
a.

Motion for Declaratory Judgment (Dkt. No. 53)

This motion is duplicative of several of the motions that the court denied
in its first screening order (Dkt. No. 52, denying plaintiff’s motion for summary
judgment and plaintiff’s motion for final judgment). The motion asks the court
to decide the lawsuit in favor of the plaintiff before the defendant has had the
opportunity to answer the plaintiff’s allegations. As the court explained in its
original screening order, this motion is premature. There is a process that any
24

party filing a case in federal court must follow. A party cannot come into
federal court and demand that he “win” without any input from the defendant.
If the plaintiff wants to proceed in federal court, he must respect the federal
court process. The next step in that process is for the defendant to answer the
allegations in the amended complaint on which the court is allowing the
plaintiff to proceed. The defendant has a right to answer those allegations. The
court will deny this motion.
b.

Motions to Quash (Dkt. Nos. 63, 82)

On March 20, 2018 the plaintiff filed a “motion to quash” the defendant’s
first motion for sanctions. Dkt. No. 63. Several months later, when the
defendant filed an omnibus response to the plaintiff’s numerous motions, the
plaintiff filed a “motion to quash response.” Dkt. No. 82. These “motions to
quash” do not allege that the defendant’s responses were procedurally
improper. They only reiterate the arguments that the plaintiff has made in
many, many other filings. They are the plaintiff’s responses to the defendant’s
filings, and that is how the court considers them. The court will deny the
motions to quash but will consider the plaintiff’s arguments in the context of
the defendants’ motions.
The court warns the plaintiff, however, that the defendant has a right to
file motions—just as much of a right as the plaintiff does. It is improper, and
an abuse of the legal process, for the plaintiff to try to “quash” everything the
defendant files. If the plaintiff continues to ask the court to “quash” anything
the defendant files, the court will have to consider sanctions against him for
abusing the litigation process.

25

c.

Motion for Settlement and Closure of Case (Dkt. No. 69)

On May 2, 2018, the plaintiff filed “Fiduciary Appointment and Motion
For The Court To Effect Full Settlement & Closure Of Said Case and Account.”
Dkt. No. 69. The “motion” tells the court that the defendant has continued to
send the plaintiff billing statements, and makes a number of declarations and
assertions. Id. It asserts that the plaintiff is current on all payments, as a
result of the fact that there are no payments due because of “fraudulent
concealment in the original loan agreement.” Id. at 1. The “motion says that
“[t]o settle this matter once and for all, by the Power of Appointment Act of
1951, Plaintiff hereby appoints yourself, the Honorable Pamela Pepper, to act
as trustee and fiduciary, via IRS Form 56, to effect payment to defendant(s)
should your honor rule against any prior points of law plaintiff has made.” Id.
This isn’t a motion. It doesn’t ask the court for any relief. The plaintiff’s
assertion that he is “appointing” this court as a trustee or fiduciary under the
Powers of Appointment Act of 1951 is absurd. This court is the independent,
neutral arbiter of disputes between the parties. The court will deny this motion.
d.

Motions for Court of Special Equity (Dkt. Nos. 73, 75,
76)

The plaintiff has filed three motions that refer to a “court of special
equity via special deposit.” Dkt. Nos. 73, 75 and 76. The second and third
motions are redundant; the plaintiff filed them six days and twelve days after
filing the first motion. These motions cite no authority and do not ask the court
for any relief. The first motion (the only one the court will discuss, because the
second and third motions are moot) declares that the plaintiff finds “the
employment of statutes to be mere gamesmanship that do not adequately serve
the cause of Justice.” Dkt. No. 73 at 1. The plaintiff asserts that he does not
have any adequate remedy in statutory laws, and he purports to proceed “in
26

equity.” Id. He asserts that courts of “Special Equity have exclusive jurisdiction
over private cestui que trusts5 . . . and special deposits,” then states that he
“invoke[s] a court of Special Equity by special deposit from which relief may be
granted by motion or application.” Id.
In this federal district court, “[t]here is one form of action—the civil
action.” Fed. R. Civ. P. 2; see also Matter of U.S. Brass Corp., 110 F.3d 1261,
1267 (7th Cir. 1997) (observing that law and equity were merged in federal
courts more than a half century ago). “The ‘black letter’ rule is that an
applicant for equitable relief has no right to such relief, but merely a right to
appeal to the equitable discretion of the judge.” Id. To the extent that this
motion is the plaintiff’s appeal to this court of law to ignore the valid laws of
the United States and “do justice” as it sees fit, the court rejects that appeal,
and denies the motions.
e.

Motion for Immediate Injunctive Relief (Dkt. No. 87).

On February 1, 2019, the plaintiff filed a one-page document titled
“Notice of Contract Violation Motion for Immediate Injunctive Relief.” Dkt. No.
87. Stripped of its frills, the “motion” states that the defendant has continued
to send the plaintiff billing statements. Id. It announces that the plaintiff gives
the court notice that he is going to be filing tort claims “with WI Secretary of
State,” and asks the court for “immediate injunctive relief from further billings
and harassment by defendants, with punitive damages payable in favor of the
Plaintiff.” Id.
This motion is another version of the plaintiff’s request that the court
resolve the lawsuit in his favor before the defendant has had the opportunity to

5

A cestui que trust is someone for whose benefit a trust is created.
27

respond. The plaintiff frames this version as a request for injunctive relief. A
party seeking injunctive relief in federal court must show (1) irreparable harm,
(2) that traditional legal remedies would be inadequate, and (3) that the claim
has some likelihood of success on the merits. Girl Scouts of Manitou Council,
Inc. v. Girl Scouts of U.S. of America, Inc., 549 F.3d 1079, 1086 (7th Cir. 2008)
(citations omitted). The plaintiff’s motion does not come close to meeting any of
these requirements for injunctive relief and, as such, the court will deny it.
f.

Motion for Judgment (Dkt. No. 89)

On February 4, 2019, the plaintiff filed a motion for judgment in his
favor. Dkt. No. 89. In this “motion,” the plaintiff asserts that the defendant’s
lawyers have violated his “common-law copyright/tradename trademark.” Id. at
1. He alleges that defense counsel is “acting as a secondary obstructing party,”
apparently for not accepting his various efforts to get the defendant to accept
anything less than the mortgage payments it demands as “settlement” of his
debt. Id. He concludes by asking the court to “award him the damages
requested and proven, for his time prosecuting this case against such obdurate
defendants.” Id. at 2.
This court is unaware of any “common-law copyright/tradename
trademark.” This is yet another version of the plaintiff’s attempt to get the court
to declare him the winner of his lawsuit, and to deprive the defendant of its
ability to defend itself. It is not defense counsel who is being “obdurate.” It is
the plaintiff. The court will deny this motion.
g.

Motion for Production and Mandatory Counter-Claim
(Dkt. No. 95)

On March 18, 2019, the plaintiff filed a Motion for Defendants to Produce
Accounting Evidence and Mandatory Counter-Claim to Defendants Motion Per
FRCP 13. Dkt. No. 95. The plaintiff demands that the court require the
28

defendants to produce “under equity, GAAP ledger accountings of actual loan
proceeds proving substance was extended by defendants.” Id. at 1. He repeats
his bizarre claim that he extended credit to the bank and the loan services “via
his promissory note and mortgage security agreement.” Id. at 1-2. He repeats
that he has made “numerous lawful tenders” that the defendant has rejected,
says the defendants recently accepted “a tender as final payment for full
settlement and closure of the account” by cashing a money order, and repeats
that he doesn’t have to pay. Id. He also raises again his “common-law
copyright/trademark.” Id. At the end of the motion, the words “[b]e it so
ordered” appear, followed by a colon, and then a signature line for this court.
Id. at 4. The plaintiff’s notarized signature follows. Id.
The court will not order the defendant to produce any documents. This
motion directly violates this court’s January 29, 2018 order 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 . . . .” Dkt. No. 52 at 14. Because the
defendant has not had the opportunity to respond to the claims on which the
court has allowed the plaintiff to proceed, it is premature for the court to order
the parties to exchange discovery (something the court already has explained to
the plaintiff in the January 29 order). If this case makes it as far as scheduling,
the court will set deadlines for exchanging discovery, but that time has not yet
come.
The plaintiff mentions in the caption of the motion Fed. R. Civ. P. 13,
which requires a party to assert in its responsive pleading any claim that the
responding party has that arises out of the same transaction or occurrence
that is the subject of the opposing party’s claim. Rule 13 would require the
29

defendant to assert any counterclaims it might have against the plaintiff in its
answer, if it files one. There is no pleading filed against the plaintiff, so there is
nothing for him to counter-claim.
The court will deny this motion.
2.

Defendant’s Motions For Sanctions (Dkt. Nos. 61, 94)

On March 14, 2018, the defendant filed a motion for relief under Fed. R.
Civ. P. 37(b)(2)(A)—specifically asking the court to sanction the plaintiff by
dismissing this lawsuit. Dkt. No. 61. In its brief in support of the motion, the
defendant alleged that the plaintiff “continu[ed] to circumvent this Court’s
January 29, 2018 Order prohibiting him from conducting discovery.” Dkt. No.
61-1 at 1. The defendant explained that on February 14, 2018 (a year after the
plaintiff filed this federal lawsuit), the plaintiff had filed a suit against the
defendant in Racine County Circuit Court. Id. The state case was scheduled for
trial on April 2, 2018, and counsel argued that the state case was “designed to
circumvent this Court’s Order.” Id. The defendant asserted that the plaintiff
also had filed a complaint with the State of Wisconsin’s Department of
Financial Institutions, id., and had “filed UCC liens and 1099A’s against the
defendant somehow asserting that the defendant owes him for the money he
borrowed to buy his house,” id. at 3. The defendant asserted that all these
proceedings were attempts to harass the defendant and to circumvent this
court’s order “staying all discovery.” Id. at 1. The defendant also asserts that
the court “ordered the Plaintiff not to conduct discovery until further review of
this matter was complete,” but that the plaintiff filed the lawsuit in Racine
County Circuit Court “to avoid this prohibition.” Id. at 3. The defendant asked
the court to sanction the defendant by dismissing the case, ordering the UCC
Financing Statements immediately terminated, barring the plaintiff from future
30

filings, ordering the 1099-A statements void and granting “any other relief as
this Court may deem equitable and just per Fed. R. Civ. P. 65(b).”6 Id. at 4.
The plaintiff objected to the defendant’s motion. Dkt. No. 63. He
conceded that he’d filed a small claims action in Racine County against defense
counsel, and that he had appealed to the Department of Financial Institutions.
Id. at 1-2. He said that he has not asked for any discovery. Id. at 1. The
plaintiff stated that he “ha[d] no desire or intent to circumvent any court order”
and that he had filed the state court case in order to contest the escalating
attorney’s fees. Id. at 2.
The court will deny the defendant’s March 2018 motion for sanctions for
several reasons. First, while it is true that the court’s January 29, 2018 order
stated 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,” dkt. no. 52 at
14, that order applied in this case. This court does not have the authority to
tell the plaintiff that he can’t file lawsuits in other jurisdictions, or complaints
with state agencies. The court prohibited both parties in this case from
demanding documents from each other, or from asking this court to require the
other side to produce documents—nothing more.
Second, apart from the plaintiff’s bizarre March 18, 2019 motion—which
the court denied above—it does not appear that the plaintiff has tried to engage
in discovery. He filed a case in small claims court and filed various
submissions with the UCC and the IRS. But he has not—at least as far as the

Rule 65(b) is the rule governing temporary restraining orders; the court
suspects the defendant meant to cite Fed. R. Civ. P. 37(b), which allows a party
to seek sanctions against another party for failure to comply with a court order.
6

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court is aware—filed discovery demands on the defendant. That is what the
court told him he could not do.
The court well understands the defendant’s frustration. But this court
does not have the authority to sanction the plaintiff for filing other proceedings
in other forums. The court will deny the defendant’s March 2018 motion.
On March 8, 2019, the defendant filed a motion for sanctions under Fed.
R. Civ. P. 11(c). Dkt. No. 94. The defendant asserts that the amended
complaint and the plaintiff’s “many motions, letter demands, liens and filings”
have no basis “in federal or Wisconsin law.” Id. at 1. The defendant argues that
these claims are “patently frivolous,” subjecting the plaintiff to Rule 11
sanctions. Id. Finally, the defendant asserts that defense counsel sent the
plaintiff the “safe harbor” letter required by Fed. R. Civ. P. 11(c)(2) on February
6, 2019, but that the plaintiff had not withdrawn his claims within twenty-one
days of that date. Id. at 3.
While the plaintiff has not responded to this motion, the court will deny
it. The court agrees with the defendant that the plaintiff’s claims about lending
money to the defendant and promissory notes being deposits into banks and
the American banking system constituting theft or swindling are patently
frivolous. That is why the court is not allowing the plaintiff to proceed on those
claims. But as the court has explained, the plaintiff has alleged the bare bones
of TILA, RESPA and FDCPA claims. Because the court is allowing the plaintiff
to proceed on those claims—and only those claims—the court will deny the
motion for dismissal as a Rule 11 sanction.
III.

NEXT STEPS
The next step in this case is that the court will order the defendant to

respond to the amended complaint. There are different ways that the defendant
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might respond. If the defendant files an “answer” to the amended complaint,
the court will require the parties to file scheduling plans under Fed. R. Civ. P.
26(f). Once the court receives the scheduling plans, it either will issue a
scheduling order or will calendar a hearing to talk to the parties about
scheduling. If the defendant files a motion to dismiss rather than an answer,
the court will issue an order setting deadlines for the plaintiff to file a response
and the defendant to file a reply. The court will decide the motion after it is
fully briefed.
Until 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.
The court realizes that it has taken a long time to screen the amended
complaint. Part of the responsibility for that delay lies with the court and its
extremely crowded docket; part of it lies with the plaintiff, because of the
avalanche of filings he has made in this case. If the plaintiff wants to continue
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 making attacks on the defendant’s lawyer.
He must stop demanding that this court declare him the winner of this lawsuit
before the lawsuit even has gotten under way. 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
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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.
IV.

CONCLUSION
The court ORDERS that defendants Michael Dubek, Jeffrey Bergida, and

Mark Clauss are DISMISSED.
The court DENIES the plaintiff’s motion for declaratory judgment. Dkt.
No. 53.
The court DENIES the plaintiff’s motion for sanctions. Dkt. No. 61.
The court DENIES the plaintiff’s motions to quash. Dkt. Nos. 63, 82.
The court DENIES the plaintiff’s motion for settlement. Dkt. No. 69.
The court DENIES the plaintiff’s motions for a Court of Special Equity.
Dkt. Nos. 73, 75, 76.
The court DENIES the plaintiff’s motion for immediate injunctive relief.
Dkt. No. 87.
The court DENIES the plaintiff’s motion for judgment. Dkt. No. 89.
The court DENIES the defendant’s motion for sanctions under Rule
11(c). Dkt. No. 94.
The court DENIES the plaintiff’s motion to produce evidence and
mandatory counter-claim. Dkt. No. 95.
The court ORDERS Planet Home Lending, LLC to file a responsive
pleading to the amended complaint.
The court ORDERS that the parties may not begin discovery until after
the court enters a scheduling order setting deadlines for discovery and
dispositive motions.

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The court ORDERS that the plaintiff shall not file any documents of any
kind in this case until further order of the court.
The court ORDERS the plaintiff to mail all correspondence and legal
material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
DO NOT MAIL ANYTHING DIRECTLY TO THE JUDGE’S CHAMBERS. It will
only delay the processing of the case. Because the clerk of court will scan each
filing electronically and enter it on the docket when it is received, the plaintiff
need not mail copies of future filings to the defendant. The defendant will be
served electronically through the court’s electronic case filing system. The
plaintiff should, however, keep a personal copy of every document he files with
the court.
The court advises the plaintiff that, if he fails to file documents or take
other required actions by the deadlines the court sets, the court may dismiss
the case based on his failure to diligently pursue it. The parties must notify the
clerk of court of any change of address. Failure to do so could result in orders
or other information not being timely delivered, thus affecting the legal rights of
the parties.
Dated in Milwaukee, Wisconsin this 21st day of March, 2019.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge
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