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Jester v. Wells Fargo Bank, N.A.

United States District Court, E.D. Oklahoma

March 21, 2018

TIMMY DEWAYNE JESTER, Plaintiff,
v.
WELLS FARGO BANK N.A. and WELLS FARGO HOME MORTGAGE, Defendants.

          OPINION AND ORDER

          James H. Payne United States District Judge

         Before this Court are (1) Defendants' Motion to Dismiss Second Amended Complaint (Dkt. 41), (2) Defendants' Motion for Leave to File Judgment Rolls (Dkt. 42), (3) Plaintiff's “Motion for Leave to Amend Its Second Amended Complaint” (Dkt. 46), (4) Plaintiff's “Emergency Motion for a Evidentiary Hearing for a Temporary Restraining Order or Preliminary Injunction” (Dkt. 48), and (5) Plaintiff's “Emergency Motion for a Order to Show Cause and Request an Evidentiary Hearing” (Dkt. 49). Plaintiff is proceeding pro se and in forma pauperis. In the interest of efficiency, the Court will address each of the pending motions in this Opinion and Order.

         BACKGROUND

         Plaintiff Timmy Dewayne Jester (“Plaintiff”) filed his original pro se Complaint in this matter on December 2, 2016, seeking relief against Defendants Wells Fargo Bank, N.A. and Wells Fargo Home Mortgage (together, “Defendants”) for foreclosure fraud and unjust enrichment. (Dkt. 2). On July 26, 2017, after obtaining permission from the Court, Plaintiff filed a Second Amended Complaint, adding various causes of action against Defendants.

         The Second Amended Complaint is rambling, repetitive, and difficult to decipher. However, it is plain from the pleading and Defendants' Motion to Dismiss that Plaintiff's claims stem from his attempts to prevent Defendants from enforcing their Oklahoma State Court Foreclosure Judgment against him, in Wagoner County No. CJ-2012-308 (the “2012 Foreclosure”). The relevant proceedings are below described.

         I. The 2012 Foreclosure Proceeding

         In the 2012 Foreclosure, Defendants moved for summary judgment, and Plaintiff opposed Defendants' motion by questioning the validity of the indorsement from Washington Mutual Bank, FA, on his note and by alleging Mortgage Electronic Registration Services, Inc. (“MERS”) mortgages are invalid in Oklahoma. (See Dkt. 41-3 (Jester's Response to Motion for Summary Judgment, June 16, 2014)).[1] Judge Shook of the Wagoner County District Court overruled Plaintiff's objections in that case and entered judgment in favor of Defendants on October 8, 2014. (Dkt. 41-4 (Journal Entry of Judgment)). The Journal Entry of Judgment in the 2012 Foreclosure indicates the trial judge reviewed the original wet ink note and determined the indorsements were valid. (See Id. at 2-3). The trial judge also specifically found that Defendants demonstrated standing to enforce the note. (Id. at 3). The Journal Entry of Judgment was amended on January 13, 2015, to clarify the judgment was only in rem. (Dkt. 41-5 Amended Journal Entry of Judgment)).

         Plaintiff sought to vacate the judgment in the 2012 Foreclosure. (Dkt. 41-6 (Jester's Amended Response for Motion to Vacate Summary Judgment, Feb. 20, 2015)). In that motion, Plaintiff raised numerous allegations against Defendants, including: (1) the indorsement on the note was forged and invalid, (2) Plaintiff's mortgage payments had not been credited properly, in violation of various statutes including the Oklahoma Consumer Protection Act (“OCPA”), 15 Okl. St. §§ 752 et seq., (3) MERS mortgages cannot be valid in Oklahoma, (4) misconduct occurred during Plaintiff's Chapter 7 bankruptcy proceeding in 2011, (5) Plaintiff's prior counsel during the 2012 Foreclosure acted negligently and incompetently, and (6) the loan was improperly serviced, in violation of the Real Estate Procedures Act (“RESPA”), 12 U.S.C. §§ 2601-2617. (Id.). The Wagoner County District Court denied Plaintiff's motion to vacate on April 8, 2015. (See Dkt. 41-8 (Court of Civil Appeals Opinion), ¶ 4). Plaintiff appealed, and on October 26, 2015, the Oklahoma Court of Civil Appeals (“COCA”) affirmed the judgment in favor of Defendants. (Dkt. 41-8 (COCA Opinion)). On April 11, 2016, the Oklahoma Supreme Court denied Plaintiff's petition for certiorari. (Dkt. 41-9 (Oklahoma Supreme Court Order)).

         II. Plaintiff's Chapter 7 Bankruptcy Proceeding

         Also pertinent to this matter is Plaintiff's 2011 bankruptcy proceeding, No. 11-80627-TRC, in the United States Bankruptcy Court for the Eastern District of Oklahoma (the “Bankruptcy Case”). A Chapter 7 Bankruptcy discharge was entered in that case on July 27, 2011. (See Dkt. 41-1 (Discharge of Debtor)). On October 28, 2014, Plaintiff sought to reopen his Chapter 7 Bankruptcy to pursue an adversary proceeding against Defendants. (See Dkt. 41-10 (Motion to Reopen Case for Purpose of Complaints)). Plaintiff requested the Bankruptcy Court review the state court judgment against him in the 2012 Foreclosure. (Id.). He alleged a litany of violations of state and federal law committed by Defendants, including violation of the bankruptcy discharge injunction and automatic stay laws by foreclosing on his mortgage; fraud; robo-signing; misapplication of his payments; violation of RESPA; and intentional infliction of emotional distress. (Id.). On December 30, 2014, following a hearing, Judge Cornish issued an order denying Plaintiff's request to reopen, finding the Bankruptcy Court had no authority to set aside the state court judgment in the 2012 Foreclosure. (Dkt. 41-11 (Order Denying Motion to Reopen)). Judge Cornish concluded the Rooker-Feldman doctrine prevented the Bankruptcy Court “from acting as an appellate court to review a final, state court judgment or claims inextricably intertwined with them.” (Id. at 4). Judge Cornish also found no violation of the automatic stay and no violation of the discharge injunction. (Id.).

         Plaintiff appealed Judge Cornish's ruling to the Bankruptcy Appellate Panel (“BAP”), which affirmed the Bankruptcy Court's order on October 22, 2015. (Dkt. 41-12 (Opinion, BAP Appeal No. EO-15-2)). Plaintiff then appealed to the Tenth Circuit Court of Appeals, which affirmed the BAP's Opinion on July 25, 2016. (Dkt. 41-13 (Order in Tenth Circuit No. 15-7079)).

         III. The Present Proceeding

         Following the Tenth Circuit's Order and Judgment in the Bankruptcy Case, Plaintiff filed a Complaint in this matter. In the Second Amended Complaint, Plaintiff again seeks review of the 2012 Foreclosure judgment, along with review of the judgment in the Bankruptcy Case. The Second Amended Complaint lists twenty causes of action against Defendants: (1) foreclosure fraud; (2) unjust enrichment; (3) fraud upon the court; (4) misrepresentation; (5) breach of contract; (6) misapplication of payments; (7) deceit; (8) violation of RESPA, 12 U.S.C. §§ 2601-2617; (9) violation of the OCPA, 15 Okl. St. §§ 761(c)-(d)[2]; (10) lack of standing; (11) dual tracking; (12) promissory fraud; (13) actual fraud (14) constructive fraud; (15) violation of the automatic stay laws under 11 U.S.C. § 362(a); (16) violation of the discharge injunction; (17) violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692e, 1692f, 1692j, and 1692k[3]; (18) violation of the Fourteenth and Fifteenth Amendments; (19) forgery; and (20) infliction of emotional stress. (See Dkt. 38, at 1). Plaintiff seeks relief in the form of voiding the judgment in the 2012 Foreclosure, permanent injunction, reimbursement of fees and costs, reimbursement of payments paid on the loan plus interest, and civil monetary penalties available under Oklahoma and federal law. (Id. at 35-39).

         Defendants have filed a motion to dismiss the allegations against them pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. 41). Defendants simultaneously filed a Motion for Leave to File Judgment Rolls (Dkt. 42). Plaintiff has responded to the Defendants' motion. (Dkt. 43). Defendants have filed a Reply. (Dkt. 44). Plaintiff thereafter filed an unauthorized Surreply brief. (Dkt. 45).[4]

         On September 7, 2017, Plaintiff filed a Motion for Leave to Amend the Second Amended Complaint. (Dkt. 46). Defendants filed an Objection and Response to Plaintiff's Motion to Amend. (Dkt. 47). On November 3, 2017, Plaintiff filed two motions: an “Emergency Motion for a Evidentiary Hearing for a Temporary Restraining Order or Preliminary Injunction” (Dkt. 48) and an “Emergency Motion for a Order to Show Cause and Request an Evidentiary Hearing” (Dkt. 49). Defendants filed an Objection and Response to each motion. (Dkts. 50, 51). The pending motions are now ripe for review by this Court.

         DISCUSSION

         IV. Defendants' Motion to Dismiss Second Amended Complaint

         A. Standard of Review

         1. Rule 12(b)(1) - Lack of Subject Matter Jurisdiction

         The party asserting jurisdiction has the burden to allege jurisdictional facts demonstrating the presence of federal subject matter jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002). Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction “generally take one of two forms.” Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). “First, a moving party may make a facial attack on the complaint's allegations as to the existence of subject matter jurisdiction. In reviewing a facial attack, the district court must accept the allegations in the complaint as true.” Id. (internal citation omitted).

         The second type of attack goes beyond the allegations in the complaint and challenges “the facts upon which subject matter jurisdiction depends.” Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (citation omitted). When reviewing a factual attack on subject matter jurisdiction, “a district court may not presume the truthfulness of the complaint's factual allegations, ” and a court's reference in such an instance “to evidence outside the pleadings does not convert the motion to a Rule 56 motion” for summary judgment. Id. (citations omitted). When ruling on a factual attack, a court “has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts” without converting the motion into one for summary judgment. Stuart, 271 F.3d at 1225. To defeat a Rule 12(b)(1) motion based on a factual attack, a “plaintiff must present affidavits or other evidence sufficient to establish the court's subject matter jurisdiction by a preponderance of the evidence.” Southway v. Central Bank of Nigeria, 328 F.3d 1267, 1274 (10th Cir. 2003) (citation omitted). Here, Defendants state they are raising a factual attack on the jurisdictional facts alleged by Plaintiff.

         2. Review of Pro Se Pleadings

         The Court further notes that, while pro se pleadings must be liberally construed and must be held to less stringent standards than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972), a district court should not assume the role of advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Moreover, even pro se plaintiffs are required to comply with the “fundamental requirements of the Federal Rules of Civil and Appellate Procedure, ” and the liberal construction to be afforded does not transform “vague and conclusory arguments” into valid claims for relief. Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). The court “will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. N.M., 113 F.3d 1170, 1173-74 (10th Cir. 1997).

         B. Subject Matter Jurisdiction Over Claims Challenging the ...


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