Walsh v. Jp Morgan Chase Bank, Na

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
GREGORY WALSH, )
)
Plaintiff, )
)
v. ) Civil Action No. 14-0774 (ABJ)
)
JPMORGAN CHASE BANK, NA, et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
Plaintiff Gregory Walsh brings this pro se action against defendants JPMorgan Chase
Bank, N.A. (“JPMorgan Chase”), Wells Fargo Bank, N.A. (“Wells Fargo”), and Bank of New
York Mellon (“BNY Mellon”) (the “bank defendants”), Prince William County (Virginia)
Sheriff Glendell Hill and the Prince William County (Virginia) Sheriff’s Office (the “sheriff
defendants”), and BWW Law Group, LLC (“BWW”). Compl. [Dkt. # 1]. In essence, plaintiff
seeks to halt the planned foreclosures on two properties in Virginia. The six-count complaint
advances numerous allegations of wrongdoing by defendants that plaintiff contends make the
Virginia foreclosures invalid, including violations of the consent judgment entered in United
States v. Bank of America Corporation, et al., No. 12-cv-0361-RMC [Dkt. # 10, 14] (D.D.C.
April 4, 2012) (“consent judgment”), the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq., 42
U.S.C. §§ 1983, 1985, and 1986, and various other constitutional, statutory, and common law
rights. Compl. ¶¶ 66–109.
All defendants except for BNY Mellon have moved to dismiss the complaint under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be
granted. Sheriff Defs.’ Mot. to Dismiss [Dkt. # 4] at 1 (“Sheriffs’ Mot.”); Def. BWW’s Mot. to
Dismiss [Dkt. # 7] at 1 (“BWW Mot.”); Mot. to Dismiss by Wells Fargo [Dkt. # 13] at 1 (“Wells
Fargo Mot.”); Def. JPMorgan Chase’s Mot. to Dismiss & Incorporated Mem. of Law [Dkt. # 15]
at 1 (“JPMorgan Chase Mot.”). 1 Defendant BNY Mellon has not yet responded to the complaint.
Because the Court finds that plaintiff has failed to state any claim upon which relief can be
granted, it will dismiss the complaint as to all defendants. 2
BACKGROUND
I. Plaintiff’s Allegations
According to the complaint, plaintiff is the owner of two properties located in Bristow,
Virginia and Dumfries, Virginia. Compl. ¶ 1. Plaintiff alleges that “Defendants . . . have
deliberately and with malice raced at break neck speed towards foreclosure and eviction of the
Plaintiffs [sic] from their homes,” id. ¶ 7, and that he will soon “suffer irreparable harm,” id. ¶ 1.
Plaintiff also contends that all of the defendants are working together to deprive him of his rights
and his property under the direction of defendant Wells Fargo. Id. ¶ 3.
1 Defendants also variously contend that plaintiff’s claims are barred by res judicata,
JPMorgan Chase Mot. at 1; that the Court lacks subject matter jurisdiction, id.; Wells Fargo Mot.
at 1; that venue is improper in this District, BWW Mot. at 1; Mem. of Law in Supp. of Wells
Fargo Mot. [Dkt. # 13] at 12–14; and that the Court lacks personal jurisdiction over Sheriff Hill
and the Prince William County Sheriff’s Office, Sheriffs’ Mot. at 1. Although all of these
arguments raise serious questions that could potentially dispose of the case, because the Court
finds that plaintiff has entirely failed to state a claim, it will not address them here.
2 Although BNY Mellon has not yet responded to the complaint, the Court will dismiss the
complaint sua sponte as to that defendant pursuant to Rule 12(b)(6) because “it is ‘patently
obvious’ that the plaintiff cannot possibly prevail based on the facts alleged in the complaint.”
Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 127 (D.C. Cir. 2012), quoting Baker v. Dir.,
U.S. Parole Comm’n, 916 F.2d 725, 727 (D.C. Cir. 1990); see also Ananiev v. Freitas, --- F.
Supp. 2d ---, No. 13-00341(BAH), 2014 WL 1400857, at *5–*7 (D.D.C. Apr. 11, 2014) (sua
sponte dismissing, pursuant to Rule 12(b)(6), a pro se foreclosure-related complaint against two
banks and a law firm for violations of the United States v. Bank of America consent judgment,
the FCA, and other constitutional, statutory, and common law rights).
2
Plaintiff alleges repeatedly throughout the sixty-five page complaint that the three bank
defendants have engaged in improper practices that make the planned foreclosures on the
Virginia properties invalid. For instance, plaintiff claims that Wells Fargo and BNY Mellon
have “created several documents . . . which are designed to deceive the Plaintiffs [sic] and the
Courts and [to] give [Wells Fargo] a defective and fraudulent interest in” the two Virginia
properties. Id. ¶ 3. He also claims that the banks have not “proven their ownership interest in
the note and have not proven their possession of the original note,” id. ¶ 7, that the banks never
“provided the proper notification regarding any alleged assignment of the note,” id. ¶ 9, and that
JPMorgan Chase has failed to comply with plaintiff’s “lawful demand for them to Exhibit the
instrument.” Id. ¶ 10; see also id. ¶¶ 11, 14–24, 26, 28–30, 32–34, 36–37, 39, 42, 44, 46, 48–51,
56–57 (outlining the same and similar allegations about the improper foreclosure practices of the
bank defendants). Plaintiff further contends that the bank defendants’ actions violate the consent
judgment and the Uniform Commercial Code (“UCC”). See, e.g., id. ¶¶ 1, 6–7, 9–11, 14–15, 17,
19–20, 23–25, 28, 36, 39–40, 42, 44, 47–50, 56, 63–64. And plaintiff claims that the bank
defendants have conspired together to deprive him of his rights. See id. ¶ 36.
Plaintiff’s allegations against the sheriff defendants stem from the claims he brings
against the banks. The complaint explains that “[t]he Sheriff’s [sic] Defendants are sued
prospectively, in order to prevent irreparable harm from the planned foreclosures,” id. ¶ 4,
because the sheriff defendants “will be asked to assist the banks through their participation in an
auction of the subject property and the issuance of a Sheriff’s Deed, in violation of the consent
[judgment].” Id. ¶ 23. Plaintiff further alleges that Sheriff Hill “either knew or should have
known” that the bank defendants were violating the consent judgment and the UCC, and that he
“has established [a] custom and policy for his department . . . to assist the five largest banks in
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their foreclosure sales, even though they do not have a documented enforceable interest in the
note and mortgage as required under the consent [judgment].” Id. ¶ 36.
The complaint does not contain any express allegations against defendant BWW. See
generally id. In his opposition to BWW’s motion to dismiss, however, plaintiff identifies BWW
as a legal representative for Wells Fargo and JPMorgan Chase, and contends that it has “assisted
the other Defendants in filing an eviction case to obtain unlawful control and ownership” of
plaintiff’s properties. Mem. of P. & A. in Supp. of Opp. to BWW Mot. [Dkt. # 19] ¶¶ 4–5 (“Pl.’s
Opp. to BWW Mot.”). In the opposition, plaintiff also argues that “business partners, agents,
assigns and proxies” of Wells Fargo, such as BWW, are bound by the consent judgment “[b]y
implication.” Id. ¶ 40.
The complaint contains six counts styled as “Causes of Action” (“COA”). The first COA
alleges that all defendants conspired together in violation of 42 U.S.C. §§ 1983, 1985, and 1986,
and that the “[n]on-state actors employed and used the state actors and government organs and
instrumentalities to carry out their unlawful activities.” Id. ¶ 66. It further asserts that all
defendants “intentionally inflicted emotional distress” on plaintiff by improperly seeking to
foreclose on his property. Id. And it again repeats plaintiff’s claim that “the Defendants have
not established, with admissible evidence, that any of them are the holder of the note or the
holder of the Deed of Trust,” that documents related to the foreclosures are invalid, and that
defendants have violated the consent judgment and the UCC. Id. ¶¶ 69–72.
The second, third, fourth, and fifth COA purport to state qui tam claims under the FCA
on behalf of the United States government. See id. ¶¶ 73–103. These counts allege “wrongful
conduct” by various defendants (and, in the third COA, by Bank of America, N.A., which is not
a defendant in this case) including: the sale of mortgage-backed securities with false signatures,
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id. ¶¶ 75–77, 81–83, 91–93, 99–101; false representations to the government that defendants
“held good title to . . . notes and mortgages,” including plaintiff’s mortgages, id. ¶¶ 76–78, 82–
83, 92–93, 100, 106; that the United States has made “payments and approvals” based on false
claims by defendants, id. ¶¶ 78, 88, 97; the failure to pay “Millions of Dollars in Taxes” to the
federal government, id. ¶ 96; and a conspiracy by all defendants to “violate[] state and federal
laws and further[] an effort to transfer impaired securities to the Treasury, or other government
funded entity.” Id. ¶ 102.
The sixth and final COA seeks to enforce the consent judgment entered in United States
v. Bank of America against all defendants for many of the violations described above, and
contends that defendants have entered into a conspiracy to violate the consent judgment. Id.¶¶ 104–109.
Plaintiff seeks “equitable relief, statutory damages, actual damages, reasonable attorney’s
fees, and costs,” id. ¶ 111, as well as compensatory damages, pre-judgment and post-judgment
interest and fines under the FCA, declaratory relief, an order compelling defendants to cease the
foreclosure and eviction process, and punitive damages against all defendants “for engaging in
acts of oppression, fraud, and malice.” Id. ¶¶ 112–122.
II. Procedural Background
Plaintiff filed his complaint on May 6, 2014. Compl. The sheriff defendants moved to
dismiss on August 22, 2014, Sheriffs’ Mot.; BWW moved to dismiss on August 26, 2014, BWW
Mot.; and Wells Fargo moved to dismiss on September 22, 2014, Wells Fargo Mot. On
September 23, 2014, the Court issued a Fox Order advising the pro se plaintiff that if he did not
respond to those three motions to dismiss by October 20, 2014, the Court would treat the motions
conceded as to those defendants. Fox Order [Dkt. # 14] at 2. Defendant JPMorgan Chase moved
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to dismiss on September 23, 2014, JPMorgan Chase Mot., and the Court issued a second Fox
Order on September 24, 2014, giving plaintiff the same October 20, 2014 deadline to respond to
the JPMorgan Chase motion to dismiss. Fox Order [Dkt. # 17] at 2.
Plaintiff filed an opposition to the BWW motion to dismiss on October 22, 2014. Pl.’s
Opp. to BWW Mot. Defendant JPMorgan Chase provided a copy of plaintiff’s opposition to its
motion to dismiss to the Court, which was docketed on October 30, 2014. See Pl.’s Opp. to
JPMorgan Chase Mot. [Dkt. # 20]. Plaintiff did not file oppositions to the motions to dismiss by
the sheriff defendants or Wells Fargo. 3 BWW filed a reply to plaintiff’s opposition on October
30, 2014. Def. BWW’s Reply to Pl.’s Opp. to BWW Mot. [Dkt. # 21]. JPMorgan Chase filed a
reply to plaintiff’s opposition on November 7, 2014. Reply Mem. in Supp. of JPMorgan Chase
Mot. [Dkt. # 22].
Although it appears that BNY Mellon was timely served, see Aff. of Service [Dkt. # 23]
at 2, no counsel for that defendant has entered an appearance in this case, nor has BNY Mellon
responded to the complaint in any way. Plaintiff has not sought entry of default with respect to
BNY Mellon.
STANDARD OF REVIEW
In evaluating a motion to dismiss under Rule 12(b)(6), the Court must “treat the
complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences
that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111,
1113 (D.C. Cir. 2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)
(citations omitted). When a plaintiff proceeds pro se, the Court “take[s] particular care to
3 The Court notes that plaintiff’s failure to respond to the motions to dismiss of the sheriff
defendants and defendant Wells Fargo constitutes sufficient grounds alone for the Court to
dismiss the complaint as to those defendants. See Fox v. Strickland, 837 F.2d 507, 509 (D.C.
Cir. 1988); see also Fox Order [Dkt. # 14].
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construe the plaintiff's filings liberally, for such complaints are held ‘to less stringent standards
than formal pleadings drafted by lawyers.’” Cheeks v. Fort Myers Constr. Co., 722 F. Supp. 2d
93, 107 (D.D.C. 2010), quoting Haines v. Kerner, 404 U.S. 519, 520–21 (1972). Nevertheless,
the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported
by facts alleged in the complaint, nor must the Court accept plaintiff’s legal conclusions.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim is facially plausible when the pleaded factual content “allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id., quoting Twombly, 550 U.S.
at 556. “[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader
is entitled to relief.’” Id. at 679, quoting Fed. R. Civ. P. 8(a)(2). A pleading must offer more
than “‘labels and conclusions’” or a “‘formulaic recitation of the elements of a cause of action,’”
id. at 678, quoting Twombly, 550 U.S. at 555, and “the tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to legal conclusions.” Id. In ruling upon
a motion to dismiss, a court may ordinarily consider only “the facts alleged in the complaint,
documents attached as exhibits or incorporated by reference in the complaint, and matters about
which the Court may take judicial notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196
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(D.D.C. 2002), citing Equal Emp’t Opportunity Comm’n v. St. Francis Xavier Parochial Sch.,
117 F.3d 621, 624–25 (D.C. Cir. 1997).
ANALYSIS
The Court will grant defendants’ motions and dismiss the complaint because plaintiff has
failed to state any claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). First,
plaintiff lacks standing to enforce the consent judgment entered in United States v. Bank of
America because he is not a party to the agreement. Second, plaintiff has failed to satisfy the
basic procedural and pleading requirements for his False Claims Act allegations. And third,
plaintiff has failed to plead virtually any facts that would support his other statutory,
constitutional, and common law allegations.
I. Plaintiff lacks standing to enforce the consent judgment.
Plaintiff invokes the consent judgment in nearly every paragraph of the complaint, but all
of his claims related to it must fail because plaintiff is not a party to the consent judgment and
therefore lacks standing to enforce it. See McCain v. Bank of America, 13 F. Supp. 3d 45, 54
(D.D.C. 2014) (stating that the same consent judgment “simply does not create a private right of
action allowing third parties, such as the plaintiff, to bring claims for alleged violations”);
Ananiev v. Wells Fargo Bank, N.A., 968 F. Supp. 2d 123, 131–32 (D.D.C. 2013) (stating that an
action to enforce the same consent judgment may only be brought by a party to the consent
judgment). Moreover, plaintiff does not plead any facts that would suggest that he does have a
right to enforce the consent judgment, instead relying solely on an inapposite Supreme Court
opinion from 1838. See Pl.’s Opp. to JPMorgan Chase Mot. ¶¶ 1–2, 8, citing City of Georgetown
v. Alexandria Canal Co., 37 U.S. 91, 99 (1838) (holding that a private person seeking relief from
a public nuisance in a court of equity can only obtain relief if he “avers and proves some special
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injury”); see also Compl. ¶ 1. Therefore, plaintiff has failed to state a claim upon which relief
can be granted, and the portions of the complaint relating to the consent judgment, including the
sixth COA and parts of the first COA, must be dismissed.
II. Plaintiff fails to state a claim under the False Claims Act.
In the second, third, fourth, and fifth COA, plaintiff purports to bring a qui tam action
under the FCA. See Compl. ¶¶ 73–103. A qui tam action is a civil action brought by a private
person – a “relator” – on behalf of the United States government for alleged violations of the
FCA. See 31 U.S.C. § 3730(b)(1). Plaintiff has failed to meet the threshold procedural and
pleading requirements for a qui tam action, and so his FCA claims will be dismissed.
First, it is well-settled that a qui tam action may not be brought by a pro se plaintiff. See
McCain, 13 F. Supp. 3d at 57; United States ex rel. Fisher v. Network Software Assocs., 377 F.
Supp. 2d 195, 196 (D.D.C. 2005); United States ex rel. Rockefeller v. Westinghouse Elec. Co.,
274 F. Supp. 2d 10, 16–17 (D.D.C. 2003). Thus, the pro se plaintiff’s FCA claims fail at the
starting gate.
Second, plaintiff has failed to satisfy – or even to allege that he has satisfied – any of the
procedural requirements for a qui tam action. A relator bringing a civil action for violations of
the FCA must: (1) serve “[a] copy of the complaint and written disclosure of substantially all
material evidence and information . . . on the Government”; (2) file the complaint in camera and
under seal; and (3) refrain from serving the complaint on any defendant “until the court so
orders.” 31 U.S.C. § 3730(b)(2). In this case, there is no indication or allegation that plaintiff
served his complaint and disclosures on the government, and plaintiff did not file his complaint
under seal, nor did he await permission from the Court to serve the complaint on defendants.
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In addition, plaintiff has not met the basic pleading standard for a fraud claim.
“[B]ecause the False Claims Act is self-evidently an anti-fraud statute, complaints brought under
it must comply with [Federal Rule of Civil Procedure] 9(b).” United States ex rel. Totten v.
Bombardier Corp., 286 F.3d 542, 551–52 (D.C. Cir. 2002). Rule 9(b) requires a party alleging
fraud to “state with particularity the circumstances constituting [the] fraud.” Fed. R. Civ. P. 9(b).
Here, plaintiff does contend that various defendants presented false or fraudulent claims for
payment or approval to the government. See, e.g., Compl. ¶ 77 (alleging that all defendants
“knowingly presented or caused to be presented a false or fraudulent claim for payment or
approval” to a “government entity”); id. ¶ 83 (setting forth an identical allegation solely against
defendant Wells Fargo and non-party Bank of America, N.A.). But plaintiff has entirely failed to
“state with particularity the circumstances constituting [the] fraud” he alleges; indeed, it is
difficult to divine from the complaint what exactly plaintiff alleges any particular defendant
actually did. See Fed. R. Civ. P. 9(b). Plaintiff’s FCA claims fail for this reason, as well.
Finally, the Court notes that the FCA “does not apply to claims, records, or statements
made under the Internal Revenue Code of 1986.” 31 U.S.C. § 3729(d). Therefore, to the extent
plaintiff seeks in the third and fourth COA to bring FCA claims based on defendants’ alleged
avoidance of paying certain taxes, see Compl. ¶¶ 86, 96, those claims are not cognizable under
the FCA.
For all of these reasons, plaintiff has failed to state a claim under the FCA, and his FCA
allegations – including the second, third, fourth, and fifth COA – must be dismissed.
III. Plaintiff’s other constitutional, statutory, and common law allegations fail to state a
claim upon which relief can be granted.
Although the gravamen of the complaint is plainly the claims related to the consent
judgment and the FCA, plaintiff also alleges and alludes to various violations of his statutory,
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constitutional, and common law rights. Even construing these allegations in the light most
favorable to the plaintiff, however, none of them states a claim upon which relief may be
granted.
A. Plaintiff fails to state a claim for relief under sections 1983, 1985, and 1986.
In the first COA, plaintiff alleges that defendants have violated 42 U.S.C. §§ 1983, 1985,
and 1986. Compl. ¶ 66. But plaintiff fails to state a claim under any of these provisions.
Section 1983 provides relief to plaintiffs who show that their rights were deprived by a
defendant acting “under color of” state law. 42 U.S.C. § 1983. As an initial matter, plaintiff has
failed to plausibly allege that any of the private party defendants – the three banks and BWW –
has acted under color of state law. To make this showing, plaintiff would need to plausibly
allege the existence of “(1) some type of conspiracy or agreement between the state and the
private party; (2) a demonstration that the parties shared common goals; and (3) conduct in
furtherance of the conspiracy of the agreement that violates federally protected rights.” Coe v.
Holder, No. 13-cv-184(RLW), 2013 WL 3070893, at *2 (D.D.C. June 18, 2013), citing Lugar v.
Edmonson Oil Co., 457 U.S. 922, 941 (1982), and Dennis v. Sparks, 449 U.S. 24, 27–28 (1980).
But plaintiff merely contends that the “[n]on-state actors employed and used the state actors and
government organs and instrumentalities to carry out their unlawful activities,” Compl. ¶ 66, and
does not specify how or when this occurred. This conclusory statement, without more, is not
entitled to credence. See Iqbal, 556 U.S. at 678. Moreover, if plaintiff intended to allege that the
private defendants might act under color of state law through the sheriff defendants and the use
of judicial foreclosure proceedings, that claim would not be sufficient to establish a violation of
section 1983, either. See Coe, 2013 WL 3070893, at *2 (collecting cases). Therefore, plaintiff’s
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section 1983 claim fails as to defendants Wells Fargo, JPMorgan Chase, BNY Mellon, and
BWW.
Moreover, the section 1983 claim also fails as to state actor defendants Sheriff Hill and
the Prince William County Sheriff’s Office because plaintiff has not identified any action taken
by either defendant that violated his rights. 4 Indeed, plaintiff expressly acknowledges that “[t]he
Sheriff’s [sic] Defendants are sued prospectively,” based on the harm he anticipates suffering in
future foreclosure proceedings. Compl. ¶¶ 4, 23. But even if those foreclosures do come to
pass, and even if suing for prospective relief were appropriate in this case, plaintiff has failed to
plausibly allege that the foreclosures would violate his rights for the reasons stated elsewhere in
this opinion.
Section 1985 provides relief from three types of conspiracies: (1) a conspiracy to prevent
a person from holding public office or discharging the duties of that office; (2) a conspiracy to
intimidate or deter a party or witness in court; and (3) a conspiracy to deprive a person of rights,
privileges, and the equal protection of the laws. 42 U.S.C. § 1985(1)–(3). As sections 1985(1)
and 1985(2) plainly do not apply in this case, the Court assumes that plaintiff intends to assert a
claim under section 1985(3). But even a section 1985(3) claim must fail here, where plaintiff’s
allegations of conspiracy are vague and conclusory. See, e.g., Compl. ¶ 36 (alleging that
defendant Wells Fargo “acted in league with the other Defendants”); id. ¶ 66 (“Defendants
conspired . . . in violation of Section 1983, 1985 and 1986 . . . .”); see also Browning, 292 F.3d at
242. Moreover, as with the section 1983 claim, plaintiff has failed to plausibly allege that he is
being deprived of any rights or privileges in the first place. So the section 1985 claim, too, will
be dismissed.
4 Plaintiff’s claims against Sheriff Hill in his individual capacity fail for the same reason.
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Finally, section 1986 creates liability for a person who (1) has knowledge of a conspiracy
to commit a wrongful act under section 1985, and (2) “neglects or refuses” to prevent that act.
42 U.S.C. § 1986. But plaintiff has failed to plausibly allege the existence of a conspiracy under
section 1985, nor has he claimed that any defendant knew of such a conspiracy and “neglect[ed]
or refuse[d]” to prevent any wrongful acts. Therefore, plaintiff’s section 1986 claim will be
dismissed.
B. Plaintiff fails to state a claim for relief under the Uniform Commercial Code.
Throughout the complaint and in the first COA, plaintiff alleges that various defendants
have violated Uniform Commercial Code section 3-501, which concerns the presentment of
promissory notes. 5 See, e.g., Compl. ¶¶ 14, 19, 23–25, 30, 44, 56, 70; see also Ex. B to Compl.
[Dkt. # 1-3] at 1 (letter from plaintiff to JPMorgan Chase demanding that the bank “exhibit the
instrument” for his account “as required under UCC 3-501(b)(2) and the equivalent under [the]
Virginia Commercial Code”). It is not clear that the Court needs to address these state law
claims because there are no longer any questions remaining in this case that create federal
jurisdiction.
But the claims are deficient in any event. Plaintiff’s properties are located in Virginia,
and “‘mortgage foreclosure has traditionally been a matter for . . . state law.’” Simpson v.
Cleland, 640 F.2d 1354, 1360 (D.C. Cir. 1981), quoting Roberts v. Cameron-Brown Co., 556
F.2d 356, 361 (5th Cir. 1977). As adopted in Virginia, “the UCC ‘expressly excludes the
transfer of realty from its provisions,’” Harrison v. U.S. Bank Nat’l Ass’n, No. 3:12-CV-00224,
5 Plaintiff also makes reference to UCC sections 3-104, 3-106, 3-201, 3-203, 3-301, 3-305,
and 3-309. See Compl. ¶¶ 11, 17, 19, 30, 36, 44. To the extent plaintiff makes any intelligible
claims related to these provisions of the UCC, they are legal conclusions to which the Court
owes no deference. See Browning, 292 F.3d at 242.
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2012 WL 2366163, at *2 (E.D. Va. June 20, 2012), quoting Greenwood Assocs. Inc. v. Crestar
Bank, 248 Va. 265, 270 (1994), and so UCC section 3-501 would not apply in this case.
In addition, the UCC-related claims are inextricably intertwined with – and appear to
form the basis of – plaintiff’s claims related to the consent judgment, which the Court has
already determined must be dismissed. See Compl. ¶ 11 (“The Defendants Wells Fargo Bank,
NA and their agent, US Bank, 6 have violated the [consent judgment], since their attorneys cannot
establish their . . . property interest in the note for the [Virginia properties], pursuant to . . . UCC
3-501 . . . and the equivalent under state law.”). Thus, for all these reasons, plaintiff’s claims
related to the UCC will be dismissed.
C. Plaintiff’s other claims are insubstantial and conclusory.
Plaintiff has sprinkled allusions to other causes of action throughout the complaint. See,
e.g., Compl. ¶ 66 (intentional infliction of emotional distress); id. ¶ 119 (the due process clause
of the Fourteenth Amendment). To the extent that plaintiff intends to allege violations of the
rights to which he refers, he has failed to plausibly allege facts that would support his claims.
Therefore, the Court will dismiss the complaint in its entirety.
6 Plaintiff mentions U.S. Bank throughout the complaint, although that bank is not a
defendant in this case. See Compl. ¶¶ 11, 36, 39–40, 122.
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CONCLUSION
In the complaint, plaintiff avers that “the loss of a persons [sic] home is one of the most
traumatic things that anyone can experience.” Compl. ¶ 66. The Court is sympathetic to that
sentiment and to plaintiff’s situation. But that does not mean that plaintiff has stated a claim for
relief. And so, for the reasons stated above, the Court will grant defendants’ motions and
dismiss this case in its entirety. A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: December 4, 2014
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