Ezeyoke v. Ocwen Federal Bank FSB ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-25-2006
Ezekoye v. Ocwen Fed Bank
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3862
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BPS-170 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 05-3862
________________
ANDREW EZEYOKE, Individually and on behalf of others similarly situated
v.
OCWEN FEDERAL BANK FSB a/k/a OCWEN FINANCIAL CORPORATION a/k/a
OCWEN LOAN SERVICING, LLC a/k/a OCWEN FINANCIAL SERVICES; LONG
BEACH MORTGAGE COMPANY; WILLIAM ERBEY; CHRISTOPHER J. FOX; THE
LAW OFFICES OF MARK J. UDREN & ASSOCIATES; CHOMIE NEIL; GREGORY
WHITWORTH; JULIE TOWERS; LINDA A. MICHLER; MICHELLE S. PIERSON
Andrew Ezekoye,
Appellant
________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(W.D. Pa. Civ. No. 05-cv-01049)
District Judge: Honorable Arthur J. Schwab
________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
March 23, 2006
Before: RENDELL, AMBRO and BECKER, Circuit Judges
(Filed: April 25, 2006)
________________
OPINION
________________
PER CURIAM
Andrew Ezekoye, proceeding pro se, appeals an order of the United States District
Court for the Western District of Pennsylvania dismissing his class action complaint
against Ocwen Federal Bank FSB and several of Ocwen’s employees and attorneys. We
will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
Ezekoye executed a mortgage that was assigned to Ocwen Federal Bank FSB.
Ocwen notified Ezekoye that his mortgage was in default, brought a mortgage foreclosure
action against him in Pennsylvania state court, and obtained a judgment in its favor in
2000. In his complaint, Ezekoye alleges that Ocwen used false affidavits and forged
documents in the mortgage foreclosure action. He claims that Ocwen’s conduct related to
the mortgage foreclosure violated a host of federal and state statutes, and Pennsylvania
common law.
The District Court dismissed Ezekoye’s complaint under 28 U.S.C.
§ 1915(e)(2)(B), finding it barred by the doctrines of claim and issue preclusion. The
District Court explained that it had held in another action by Ezekoye that the final
judgment in the mortgage foreclosure action precludes him from raising claims of
conspiracy and fraud with regard to Ocwen’s conduct in that proceeding.
First, we note that a pro se litigant may not represent the interest of a class in a
class action lawsuit. Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975).
Regarding Ezekoye’s individual claims, the documents submitted by the parties in
support of, and in opposition to, dismissal of this appeal under 28 U.S.C. § 1915(e)(2)(B)
establish that Ezekoye previously alleged in a complaint filed in state court that Ocwen
used false affidavits and forged documents in the mortgage foreclosure action. This
2
complaint was removed to Ezekoye’s bankruptcy proceeding. The Bankruptcy Court
found the state court complaint barred by res judicata under Pennsylvania law due to
Ocwen’s judgment in the mortgage foreclosure action. The District Court affirmed.1
The Bankruptcy Court has entered a judgment on the merits in a prior suit by
Ezekoye against Ocwen based upon the same cause of action. The Bankruptcy Court’s
opinion reflects that Ezekoye alleged in his state court complaint that affidavits submitted
by Ocwen employees Julie Towers and Gregory Whitworth in the mortgage foreclosure
action were false, and that Ocwen forged a welcome letter. The same allegations are the
basis of Ezekoye’s present complaint, in which he claims violations of the Fair Debt
Collection Practices Act, 15 U.S.C. §§ 1692-1692o (“FDCPA”), and the civil RICO
statute, 18 U.S.C. §§ 1961-1968. As these claims could have been raised in Ezekoye’s
state court complaint,2 they are barred by the doctrine of claim preclusion. See Board of
Trustees v. Centra, 983 F.2d 495, 504 (3d Cir. 1992) (stating that claim preclusion gives
dispositive effect to a prior judgment if a particular issue, although not litigated, could
have been raised in the earlier proceeding).3
1
Ezekoye’s appeal of the District Court’s order is pending in this Court at C.A. No. 04-
4017. The pending appeal does not change the preclusive effect of the Bankruptcy
Court’s order. See, e.g., Amcast Indus. Corp. v. Detrex Corp., 45 F.3d 155, 160 (7 th Cir.
1995).
2
See Tafflin v. Levitt, 493 U.S. 455, 458 (1990) (holding state courts have concurrent
jurisdiction over civil RICO claims); Itri v. Equibank, N.A., 464 A.2d 1336, 1342-43 (Pa.
Super. 1983) (holding state courts have concurrent jurisdiction over FDCPA claims).
3
Although Ezekoye lists in his complaint numerous other statutes that he contends have
been violated, their mere mention is insufficient to state a claim for relief.
3
We also conclude that Ezekoye’s claims against Ocwen employees William Erbey,
Whitworth and Towers, who were not parties to the state court complaint, are barred. See
Lubrizol Corp. v. Exxon Corp., 871 F.2d 1279, 1288 (5th Cir. 1989) (noting employer-
employee relationship may ground a claim preclusion defense). Regarding Ezekoye’s
claims against Ocwen’s outside counsel for allegedly securing an unlawful judgment in
the mortgage foreclosure action based upon false affidavits, these claims are barred by the
doctrine of issue preclusion. See Board of Trustees, 983 F.2d at 505 (setting forth
elements of issue preclusion doctrine).4
Ezekoye argues that claim and issue preclusion are not proper grounds for
dismissal under § 1915(e)(2)(B). We disagree. The District Court properly invoked these
affirmative defenses under the circumstances of this case, where Ezekoye is plainly
seeking to relitigate the mortgage foreclosure action a third time, and where the District
Court has adjudicated a prior action by Ezekoye. See Neitzke v. Williams, 490 U.S. 319,
324 (1989) (stating that an in forma pauperis litigant lacks an economic incentive to
refrain from filing repetitive lawsuits, and that the in forma pauperis statute allows courts
to dismiss such suits to prevent abusive litigation); Gleash v. Yuswak, 308 F.3d 758, 760
4
Ezekoye further alleges in his present complaint that, like in the foreclosure action,
Ocwen and its counsel submitted false affidavits in the Bankruptcy Court proceeding
regarding the date the mortgage was assigned. The Bankruptcy Court found
discrepancies in the state court affidavits regarding the date the mortgage was assigned
immaterial. Similarly, Ezekoye fails to state a claim against Ocwen, its employee
Chomie Niel, and attorney Linda Michner based upon alleged discrepancies in the
affidavits regarding which entity serviced his loan. Finally, Ezekoye’s vague allegations
against attorney Michelle Pierson, who he states attempted to collect his debt on Ocwen’s
behalf, fail to state a claim for relief.
4
(7 th Cir. 2002) (holding district court may invoke claim preclusion as basis for dismissal
under § 1915(e)(2)(B) where doctrine’s application is so plain that it renders a suit
frivolous).
Accordingly, we will dismiss this appeal under 28 U.S.C. § 1915(e)(2)(B).
5