Bland v. Bank of America NA

Filing 18

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 10/30/2017. 17 Judge Joseph's Report and Recommendations ADOPTED. 14 Defendant Bank of America's MOTION to Dismiss GRANTED. Case DISMISSED for failure to state a claim upon which relief can be granted. (cc: all counsel, via mail to Mackray Bland)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MACKRAY BLAND,
Plaintiff,
v.

Case No. 17-cv-536-pp

BANK OF AMERICA NA,
ALAN WYSKOCHIL,
and JOHN DOE,
Defendants.

ORDER ADOPTING RECOMMENDATION (DKT. NO. 17), GRANTING
MOTION TO DISMISS (DKT. NO. 14) AND DISMISSING CASE

On April 14, 2017, the plaintiff filed a motion, asking the court to issue a
preliminary restraining order barring the Milwaukee County Circuit Court from
ruling in Federal Nat’l Mortgage v. Estate of Mackray Holifield, et al., Milwaukee
County Circuit Court Case No. 2014cv006378, and staying foreclosure,
sheriff’s sale and eviction proceedings. Dkt. No. 1. Magistrate Judge Nancy
Joseph denied as moot the plaintiff’s motion for leave to proceed without
prepaying the filing fee. Dkt. No. 4. In the process, she reviewed the plaintiff’s
claims, and concluded that he had not stated any claims for which a federal
court could grant relief; as far as she could tell, the plaintiff was trying to
appeal a judgment issued in state court. Id. at 2. For this reason, the judge
dismissed the plaintiff’s case without prejudice. Id. at 3.

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On May 17, 2017, the court received from the plaintiff a motion for
reconsideration. Dkt. No. 6. In that motion, the plaintiff described what he
perceived to be flaws in the mortgage contract for the property that had been
foreclosed in the state court case, and argued that those facts showed that he
had been denied federal due process. Id. at 1-2. Judge Joseph denied that
motion, again finding that the plaintiff had not stated any claims that would
entitle him to federal relief. Dkt. No. 7. She noted, however, that he could file
an amended complaint if he thought he could state such claims. Id. On May
30, 2017, the plaintiff filed an amended complaint. Dkt. No. 8. Judge Joseph
vacated the prior order of dismissal, and allowed the plaintiff to proceed on the
amended complaint. Dkt. No. 9.
Some forty-five days later, on July 17, 2017, defendant Bank of America
filed a motion to dismiss. Dkt. No. 14. Under this court’s rules, the plaintiff had
twenty-one days—in other words, until August 7, 2017—to oppose the motion
to dismiss. Despite that fact, the plaintiff has not filed anything else since Bank
of America filed its motion.
On October 10, 2017, Judge Joseph issued a report and
recommendation to this court. Dkt. No. 17. She recommended that this court
grant the defendant’s motion to dismiss based on the plaintiff’s failure to state
a claim. Id. at 3. She concluded that the plaintiff’s amended complaint had the
same problem as his original complaint. She indicated that the amended
complaint “vaguely allege[d]” that Bank of America, acting in concert with a
notary public named Alan Wyskochil, falsified mortgage documents. Id. at 2.
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The judge explained that federal and state courts were different, and that a
person who had lost a case in state court could not appeal that loss in federal
court. Id. at 2-3. Because Judge Joseph perceived that the plaintiff was trying
to appeal the loss of his state foreclosure case in federal court, she
recommended that this court dismiss the case. Id. at 3.
At the end of her decision, Judge Joseph informed the plaintiff that if he
wanted to object to her recommendation, he had to file that objection in writing
within fourteen days of the date of her order. Id. at 3. Because she issued her
order on October 10, 2017, the plaintiff’s objections (if he had any) were due by
October 25, 2017. The court has not received any objection from the plaintiff.
Under Fed. R. Civ. P. 72(b), if a party does not object to a magistrate
judge’s report and recommendation, the district court reviews the magistrate
judge’s recommendation for clear error. Fed. R. Civ. P. 72(b); Johnson v. Zema
Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999) (citations omitted). This
court must decide only whether Judge Joseph’s report and recommendation
were clearly erroneous. The court concludes that they were not.
In the amended complaint, the plaintiff alleged that the notary public,
“acting under the color of law,” and Bank of America engaged in a conspiracy
to deprive him and his deceased grandfather of their property in violation of the
Fifth Amendment to the U.S. Constitution. Dkt. No. 8. He asserted that the
notary public and the bank falsely verified a loan document, to cover up the
fact that the originator of the loan had manipulated the plaintiff’s “elderly
illiterate grandfather by subjecting him to predatory lending absent federally
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mandated counseling.” Id. The plaintiff asked the court to issue a restraining
order barring “the lower court” from “implementing any further actions in case
#14CV6378,” “staying foreclosure, Sheriff’s Sale, and all eviction processes
pending an Order of adjudication from this Court.” Id. He also argued that he
had been damaged by the defendants’ actions, and he asked for $286,000 in
monetary damages, injunctive relief “vacating the lower court’s foreclosure,”
and an award of clear title to the property foreclosed upon in state court. Id.
A review of the on-line docket shows that on October 24, 2016,
Milwaukee County Circuit Court Judge David Hansher entered a default
judgment of foreclosure. Federal Nat’l Mortgage v. Estate of Mackray Holifield,
et al., Milwaukee County Circuit Court Case No. 2014CV006378 at dkt. no. 49,
found at https://wcca.wicourts.gov. The judgment issued on October 27, 2016.
Id. at dkt. no. 44. The notice of sheriff’s sale was dated January 30, 2017. Id.
at dkt. no. 35. On March 24, 2017, the plaintiff (representing himself) filed a
motion to vacate the foreclosure and sheriff’s sale. Id. at dkt. no. 34. The sheriff
filed the report of sale on April 12, 2017. Id. at dkt. no. 28. The court granted
confirmation of the sale on April 24, 2017. Id. at dkt. nos. 19, 17. The court
also struck the plaintiff’s motion to vacate. Id. at dkt. no. 18.
Having unsuccessfully tried to convince the state court to vacate its own
foreclosure judgment and the confirmation of the sheriff’s sale, the plaintiff has
come to the federal court, and asks the federal court to vacate the state court’s
orders. The law does not allow this court to do what the plaintiff asks. As
Judge Joseph mentioned in her order, the state court system and the federal
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court system are separate, independent court systems. The state court is not a
“lower court” of this court—it is a completely separate court in and of itself.
This court does not have authority to act as an appellate court for the state
court, or to overturn decisions by a state court.
The Supreme Court made this clear in a pair of cases called Rooker v.
Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983). Together, those two decisions created
the “Rooker-Feldman doctrine,” which “divests all federal courts except the
Supreme Court of jurisdiction to adjudicate suits by plaintiffs who effectively
seek review and rejection of an adverse state-court judgment.” Podemski v.
U.S. Bank Nat’l Assn., 2017 WL 4792195 (7th Cir. Oct. 24, 2017).
This is true regardless of whether the state court was right or wrong.
“The reason a litigant gives for contesting the state court’s decision cannot
endow a federal district court with authority; that’s what it means to say that
the Rooker-Feldman doctrine is jurisdictional.” Iqbal v. Patel, 780 F.3d 728,
729 (7th Cir. 2015)). Even if the state court was completely wrong in making
the decision that it made, the Rooker-Feldman doctrine prohibits this federal
court from overturning that decision.
Appearing to realize from Judge Joseph’s first decision that this might be
the case, the plaintiff tried to state his claim differently in the amended
complaint. In the amended complaint, he added the allegation that the
defendants had acted under color of state law to deprive him of his rights

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under the Fifth Amendment.1 This appears to be an attempt by the plaintiff to
cast his case as a civil rights case under 42 U.S.C. §1983. Setting aside the
facts that neither the Bank of America nor the notary defendant are state
actors, and that the plaintiff has asserted no facts to indicate that the
government took the plaintiff’s property for public use, the Seventh Circuit has
held that a plaintiff may not circumvent Rooker-Feldman by recasting his suit
as a civil rights action. Louis-Kenny-Reed: El v. Makowiecki, 2011 WL
5149469, * 1 (7th Cir. Nov. 1, 2011).
For all of these reasons, the court finds that Judge Joseph’s
recommendation that this court dismiss the plaintiff’s case was not clearly
erroneous.
The court ADOPTS the recommendation of the magistrate judge that it
grant defendant Bank of America’s motion to dismiss the case. Dkt. No. 17.
The court GRANTS defendant Bank of America’s motion to dismiss. Dkt.
No. 14.
The court ORDERS that this case is DISMISSED for failure to state a
claim upon which relief can be granted. The clerk will enter judgment
accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment.
The “Takings Clause” of the Fifth Amendment to the United States
Constitution prohibits the government from taking private property for public
use without just compensation.
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See Fed. R. of App. P. 3, 4. This court may extend this deadline if a party timely
requests an extension and shows good cause or excusable neglect for not being
able to meet the 30-day deadline. See Fed. R. App. P. 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
of judgment. The court cannot extend this deadline. See Fed. R. Civ P. 6(b)(2).
Any motion under Federal Rule of Civil Procedure 60(b) must be filed within a
reasonable time, generally no more than one year after the entry of the
judgment. The court cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 30th day of October, 2017.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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