United States District Court, N.D. Oklahoma
U.S. BANK NATIONAL ASSOCIATION, Plaintiff,
v.
TONNIE CHICKE NICHOLS; BORIS BERNARD NICHOLS, Defendants.
OPINION AND ORDER
JOHN
E. DOWDELL, CHIEF JUDGE.
Before
the Court are a Notice of Removal (Doc. 2), Motion for Leave
to Proceed In Forma Pauperis (Doc. 4), and an
Application for Emergency Temporary Restraining Order,
Preliminary Injunction, and Declaratory Relief for Wrongful
Forclosure [sic]” (Doc. 5).
This
action is the latest of five cases filed in this District by
Tonnie Chicke Nichols and Boris Bernard Nichols, who are
defendants in the removed foreclosure proceeding.
(See Nos. 18-CV-55-JED-FHM, 18-CV-656-JED-JFJ,
19-CV-40-TCK-JFJ, 19-CV-203-JED-FHM, 19-CV-482-JED-FHM). They
have attempted to remove the foreclosure case multiple times,
without success, and they have unsuccessfully filed claims
against the foreclosing bank in an attempt to prevent
foreclosure.
Tonnie
and Boris Nichols initiated the instant proceeding by filing
a “Notice of Removal” of No. CJ-2017-1957 from
Tulsa County District Court. (See Doc. 2 at 1). The
Clerk docketed the case as a new civil pleading, apparently
because the “Notice” filed by Tonnie and Boris
Nichols references alleged claims against the bank. (See
Id. at 7-8).[1] The Court considers their filing another
attempt to remove the Tulsa County District Court action,
while at the same time attempting to reassert claims in an
effort to prevent foreclosure.
The
Nichols defendants' prior attempts to remove the
foreclosure proceeding have been unsuccessful and were
remanded due to untimeliness. United States District Judge
Terence C. Kern previously remanded the same Tulsa County
case after the Nichols defendants filed an earlier untimely
removal of the foreclosure action. (See No.
19-CV-40-TCK-JFJ, April 4, 2019 Opinion and Order, Doc. 17;
see also id., Doc. 28 [Tenth Circuit dismissal of
the Nichols defendants' appeal, for lack of appellate
jurisdiction]). After Judge Kern remanded the action, the
Nichols defendants filed a second Notice of Removal of the
Tulsa County action, in No. 19-CV-203-JED-FHM. The
undersigned remanded the second removal, determining (as had
Judge Kern) that the removal of the foreclosure case was
untimely.
The
Nichols defendants' request for leave to file in
forma pauperis (Doc. 4) is granted, but
their action will be remanded for the
reasons previously set forth in the prior remand orders by
the undersigned and by Judge Kern. (See
19-CV-40-TCK-JFJ, Doc. 17, 28; 19-CV-203-JED-FHM, Doc. 9). In
short, the Nichols defendants' Notice of Removal in this
case was untimely, just as their prior attempts to remove the
same Tulsa County foreclosure proceeding were untimely. They
have provided no new justification for removal.
In
addition, the Nichols defendants' attempt to assert
“claims” in their Notice of Removal is
procedurally improper. Any such claims would, in any event,
be dismissible as frivolous.[2] The gravamen of the claims they
reference in their Notice of Removal is the same as before:
they argue that the bank did not have standing to foreclose
because it was not the original lender. (See Order
dismissing claims in 18-CV-55-JED, 18-CV-656-JED, Doc. 10).
Their principal argument - that they should be relieved of
their mortgage under theories that (1) only credit was lent
to them and (2) there was a financial crisis created by
mortgage-backed securitizations - have been flatly rejected
by other courts. See, e.g., Scarborough v. LaSalle Bank
Nat'l Ass'n, 460 Fed.Appx. 743, 750-51 (10th
Cir. 2012) (citing cases). As the court explained in
Ladouceur v. Wells Fargo, 682 Fed.Appx. 649 (10th
Cir. 2017):
The Ladouceurs filed the present federal court complaints
against Wells Fargo claiming it lacked standing to foreclose
on the two properties because it didn't own the security
interests in their properties. . . . [T]he Ladouceurs allege
the contracts relating to the securitization of their loans
were fraudulent and the deeds of trust were not properly
assigned. Consequently, they contend Wells Fargo lacks
standing to foreclose on their properties. But as the
district court correctly held, the Ladouceurs are not parties
to the securitization assignments and have not stated any
plausible claim to relief arising out of the assignment of
the loan documents. “[S]ecuritization of a note does
not alter the borrower's obligation to repay the loan[;
it] is a separate contract, distinct from the borrower's
debt obligations under the note.” Because the
Ladouceurs have failed to state a plausible cause of action,
we affirm the dismissal of their complaints.
682 Fed.Appx. at 649 (quoting Thompson v. Bank of Am.,
N.A., 773 F.3d 741, 749 (6th Cir. 2014)). The Nichols
defendants' other theories have also been rejected by the
courts. See, e.g., Hodge v. Ocwen Loan
Serv., No. 11-CV-837-DN, 2012 WL 1434887 (D. Utah Apr.
25, 2012) (dismissing breach of contract, quiet title,
declaratory and injunctive relief claims that were premised
upon the securitization theory); see also Heaton v.
American Brokers Conduit, 496 Fed.Appx. 873, 876 (10th
Cir. 2012) (rejecting “split-note” and
securitization theories); Hoverman v. CitiMortgage,
Inc., 11-CV-118-DAK, 2011 WL 3421406 (D. Utah Aug. 4,
2011) (rejecting fraud / misrepresentation theory based upon
securitization of a loan: “the great weight of
authority from Federal District Courts around the nation . .
. suggests that securitization of loans does not affect the
rights of the lender or servicer of the loan to enforce its
rights under the loan”).
The
Nichols defendants submitted 511 pages of
“exhibits” with their Notice of Removal, and they
re-filed an “Application for Emergency Temporary
Restraining Order, Preliminary Injunction, and Declaratory
Relief for Wrongful Disclosure” (Doc. 5), which was
initially filed in state court. In the injunction
Application, the Nichols defendants contend that they are
likely to succeed on the merits because they received an
“arbitration award” dated July 11, 2019. (See
Id. at 6). They have provided a purported “Final
Arbitration Award, ” issued by Sitcomm Arbitration
Association in their exhibits. (See Doc. 3 at
10-37).[3] That document is a bizarre jumble of
inconsistent, nonsensical word salad. (See
id.).[4]
The
arbitration document purports to award the Nichols defendants
a total of $800, 000, comprised of $200, 000 from each of the
“respondents” to the arbitration, who are
identified as (1) the plaintiff bank in this case, (2) its
CEO, (3) the Attorney General of the State of Oklahoma, and
(4) First Mortgage, LLC. The document does not identify any
specific wrongdoing or basis for the award. Instead, the
“arbitrator” announced that the Nicholses had a
prior relationship with the four respondents and formed a
contract by making an unspecified counteroffer or
“conditional acceptance” to which the respondents
somehow “tacit[ly] acquiesce[d]” by failing to
respond:
On or about December 20, 2018, the Claimant [Nichols] and the
Respondent(s) entered into a written self-executing, binding,
irrevocable, contractual agreement coupled with interests,
for the complete resolution of their misconvictions and other
conflicts respecting their previous relationship. The
Respondent(s) made an attempt to change the terms of that
contractual agreement and the Claimant presented a counter
offer or conditional acceptance of the offer to the
Respondent(s). The record clearly documents that the
Respondent(s) have failed to properly respond after they
received the counter offer, whereby such nonresponse would
equate to tacit acquiescence thereby creating an estoppel
respecting the Respondent(s) and any future claims and/or
prior claims and/or present claims associated with the
instant matter.
(Doc. 3 at 32-33, ¶ 18).[5] While it vaguely references a
previous relationship, the document does not include any
facts regarding the relationship.
The
purported arbitration award is unlike any other this Court
has ever seen. It is devoid of any specific fact-finding.
While it references a contract dated December 20, 2018, there
is no actual discussion of what its terms are, nor does it
recite what the consideration or subject matter of the
purported contract was, whom the specific parties to the
purported contract were, whether they actually executed any
document and, if so, when, and it does not address a method
of service or notice, if any, that was given to any of the
“Respondent(s).” The only “terms” of
the “contract” that are cited are the same
“terms” as those in the purported unilateral
“conditional acceptance” “contract
template” that Sitcomm Arbitration Association makes
available on its own website. The arbitrator found that the
respondents, through “tacit acquiescence” to an
unspecified “counter offer” or “conditional
acceptance, ” gave the Nicholses the right to enforce a
...