# ORIGINAL 3Jn tbe Wniteb**~tates** 

# <!Court ofjf 

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BRIDGET ALLEN,Plaintiff,

v. THE UNITED STATES, Defendant. No. 13-642C (Filed: July 15, 2014) UNREPORTED 

# FILED JUL 1

### 5 2014 U.S

. COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) Motion to dismiss for lack ofsubject matterjurisdiction, RCFC 12(b)(l); Motion to dismiss for failure to state a claim, RCFC 12(b)(6)**~~~~~~~~~)** ORDERDISMISSING CASE On September 4, 2013, pro se plaintiff("plaintiff' or "Ms. Allen") filed a complaint in which she asserts that the United States has participated in a conspiracy to seize herproperty withoutjust compensation, in violation ofthe Fifth Amendment ofthe United States Constitution. 1 Plaintiffhas subsequently filed multiple motions to amend, supplement, and otherwise correct her complaintto add new allegations and legal contentions. See DocketNos. 5 ("Notice ofErrata" seeking, among other things, to add to the complaint a request for an accounting), 17 (motion seeking leave to amend the complaint to include certain allegations concerning the United States Department of Veterans Affairs ("VA") and the Federal Deposit Insurance Corporation ("FDIC"), 21

1Ms

.Allen applied for leave to proceed in forma pauperis on October 12, 2013. Her application is GRANTED for the purpose offiling the complaint.(Notice ofErrata alleging that the VA "ExercisedEminent Domain ofthe Plaintiffs Property" and renaming the description ofan "exhibit" to her complaint).2 Although her pleadings are difficult to follow, she alleges that government and private entities have taken herproperty in connectionwiththe foreclosure ofherhome. In addition to the VA and the FDIC, Ms. Allen raises allegations against the Department ofHousing and Urban Development ("HUD") and GovernmentNational MortgageAssociation ("Ginnie Mae");3 Washington Mutual Bank, F.A. ("Washington Mutual"); JPMorgan Chase Bank, N.A. ("Chase"), and a United States bankruptcy court. Ms. Allen seeks paymentby the United States of"approximately over and above $400,000." Compl. at 15. Pending before the court is the government's motion, pursuantto Rules 12(b)(l) and 12(b)(6) ofthe Rules ofthe United States Court ofFederal Claims ("RCFC"), to dismiss the complaint for lack ofsubjectmatterjurisdiction and for failure to state a

2 The court hereby GRANTS Ms. Allen's requests to amend, supplement, or otherwise correct her complaint. 3 Ginnie Mae was established as a corporation within HUD pursuant to 12 U.S.C. § 1723a. Ginnie Mae: furnishes fiduciary services to itselfand other departments and agencies ofthe Government, and guarantees privately issued securities backed by trusts or pools ofmortgages or loans which are insured or guaranteed by the Federal Housing Administration (["FHA"]), the [VA] orthe Rural Housing Service (["RHS"]) and certain other loans or mortgages guaranteed or insured by the Government. 24 C.F.R. § 300.3. Among other things, Ginnie Mae serves "to guarantee the timely payment of principal ofand interest on securities that are based on and backedby a trust or pool composed ofmortgages which are insured or guaranteed by

... VA." 24 C.F.R. § 320.l; see generally, Securities and Exchange Commission v. Radius Capital Com., No. 2:11-CV-116-FTM-29DNF, 2012 WL 695668 (M.D. Fla. Mar. 1, 2012) (after "amortgage-backed security is sold to investors, the homeowners' monthly payments ofprincipal and interest are 'passed through' from the Issuer to the investors"). 2claim upon which reliefcan be granted. Forthe reasons that follow, the government's motion is GRANTED. I. BACKGROUND In January 2003, plaintiffobtained a $113, 189.00 home loan from Washington Mutual which was apparently guaranteed by the VA.4 In 2008, Washington Mutual entered receivership, and the FDIC was appointed as receiver. Compl. 

### iii! 28, 48. Under the receivership, the FDIC entered into an agreementwith Chase, through which Washington Mutual's assets, including Ms. Allen's mortgage note, were transferred to Chase. Id. 

## ii 49. Ms. Allen also alleges that on December 20, 2013 the VA, acting through Chase, foreclosed on Ms. Allen's property. Pl.'s Mot. to Am. & Supp. Compl. at 1, Dock. No. 17. Ms. Allen further alleges that following the foreclosure sale, the VA became the owner ofthe property. Id. Plaintiffasserts that these actions constituted a taking ofherproperty, which "consists ofvarious forms ofcollateral, such as the Deposit Account, proceeds paid to Ginnie Mae Investors, real property and the Note." Compl. 

## ii

4 The facts described herein are derived from plaintiffs complaint, amended complaint, from exhibits and attachments in the bankruptcy litigation captioned In re Allen, No. 10-20094, (Bankr. E.D. Va. Apr. 20, 2011), and are undisputed unless otherwise noted. The court notes that reference to the bankruptcy proceedings are solely to provide background information concerning the size and date ofMs. Allen's mortgage, and do notprovide a basis for the court's decision. Plaintiffhas twice moved for "MandatoryJudicial Notice" concerning the operation or application ofcertainprovisions ofstate or federal law. As plaintiffrecognizes, "[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known withinthe trial court'sjurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Because plaintiff seeksjudicial notice oflegal conclusions or facts that do not satisfy the aforementioned standard, plaintiffs motions are hereby DENIED. 3

# - 69. Plaintiffalso alleges that she has a cognizableproperty interest in regards to bankruptcy claims that were previously adjudicated. 5 OnJanuary 6, 2014, the government filed a motion to dismiss the complaint pursuant to RCFC 12(b)(l) and 12(b)(6). As noted above, plaintiffhas filed multiple motions to amend, supplement, and otherwise correct her complaint to add new allegations and legal contentions. The government has responded to all ofMs Allen's pleadings and Ms. Allen has filed responses. II. DISCUSSION

a. The government's motion to dismiss for lack ofsubject matterjurisdiction i. Standard ofreview When considering whether to dismiss a complaint for lack of jurisdiction, the court generally assumes thatthe plaintiffs factual allegations are true. Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004). This rule does not apply in cases, such as the one at bar, in which the moving party challenges the facts necessary to establish the court's subject matterjurisdiction. Reynolds v. Army & AirForce Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). Rather, once a defendant challenges thejurisdictional facts, the plaintiffhas the obligation ofdemonstrating that the court hasjurisdiction. See id. at 748 (dismissal is appropriate ifplaintifffails to establishjurisdiction after being given an opportunity to be heard). Moreover, the plaintiff"must do more than merely reiterate the facts in its well-pleaded complaint: plaintiffmust respond to defendant's challenge and put forth affirmative evidence to establishjurisdiction." N. Hartland, L.L.C. v. United

5 See In re Allen, No. 10-20094 (Bankr. E.D. Va. Apr. 20, 2011). 4States, 78 Fed. Cl. 172, 179 (2007), affd, 309 F. App'x 389 (Fed. Cir. 2009). Although the court affords aproseplaintiffleniency when interpreting herpleading, Erikson v. Pardus, 551 U.S. 89, 94 (2007), that plaintiffmust still demonstrate that her complaint satisfies the court'sjurisdictionalrequirements. Bernard v. United States, 59 Fed. Cl. 497, 499 (2004) ("This latitude, however, does not relieve a prose plaintifffrom meeting jurisdictional requirements."), affd, 98 F. App'x 860 (Fed. Cir. 2004). Under the TuckerAct, 28 U.S.C. § 1491, this courtpossessesjurisdiction to "renderjudgmentupon any claim againstthe United States founded either upon the Constitution, or any Act ofCongress or any regulation ofan executive department, or upon any express or implied contractwiththe United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 149l(a)(l). In the context ofa takings claim, plaintiffmust allege that (1) she possessed "aproperty interest for purposes ofthe Fifth Amendment," Am. Pelagic Fishing Co. v. United States, 379 F.3d 1363, 1372 (Fed. Cir. 2004); and (2) that a "governmental action at issue amounted to a compensable taking ofthatproperty interest," id. Where a plaintifffails to establish that ataking was committed, the court will dismiss the complaintunder RCFC 12(b)(1 ). See Ameristar Fin. Servicing, Co. v. United States, 75 Fed. Cl. 807, 812 (2007). b. Plaintiff's claims against Chase, Washington Mutual, the FDIC, and the bankruptcy courts must be dismissed for lack ofjurisdiction The government contends that certain ofplaintiffs claims are not against the government ofthe United States or cannot give rise to a takings claim and thus the court lacksjurisdiction to hear them. Specifically, the government observes that Chase and Washington Mutual are private entities, and thatthe FDIC, when acting in its capacity as 5a receiver, does not constitute a government entity within the meaning ofthe Fifth Amendment. The government also argues that there is no set offacts that could allow the court to exercisejurisdiction to review the bankruptcy court's determination. Plaintiffresponds by asserting that the questions ofwhether (1) the FDIC was acting in its capacity as a receiver; (2) Washington Mutual acted as her lender; (3) Chase, ratherthan the government, foreclosed on her home; and (4) the bankruptcy court "confiscated" herproperty; constitute controverted facts that render dismissal under RCFC 12(b)( 1) inappropriate. In essence, plaintiffseeks to delay dismissal to allow for discovery and resolution ofthe matter on summaryjudgment. Forthe reasons explained below, the court holds that it lacksjurisdictionto hear plaintiffs claims against Chase, Washington Mutual, the FDIC, or the bankruptcy courts. To begin, the court agrees with the government thatthis court is without jurisdictionto considerplaintiffs claims against Chase or Washington Mutual. Chase and Washington Mutual represent private banking entities that are not part ofthe federal government and therefore cannot be liable for a taking. Moreover, whether Ms. Allen disputes thesejurisdictional facts is irrelevant, because oncejurisdiction is challenged, plaintiffbears the burden ofestablishingjurisdiction. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747. Thus, plaintiffs claims against Chase and Washington Mutual must be dismissed. The court similarly concludes that the FDIC was acting as a receiver and therefore the court lacksjurisdictionto consider plaintiffs claims against the FDIC. Although plaintiff-contraryto her initial pleadings-presently disputes the FDIC's status as a
6

# - receiver, the court is not obligated to accept as true plaintiffs allegations concerning jurisdictional facts or conclusions oflaw. More importantly, the other allegations in the complaint describe conduct that would clearly have beenundertaken in the FDIC's capacity as a receiver. The Supreme Court has explained that when acting as a receiver, "the FDIC is not the United States

...." O'Melveny & Myers v. F.D.I.C., 512 U.S. 79, 85 (1994). Thus, as a receiverthe FDIC acts as a non-governmental entity and cannot commit a taking. Ameristar Fin. Servicing, Co., 75 Fed. Cl. at 812 (dismissing taking claim against the FDIC for lack of jurisdiction). Accordingly, plaintiffs claims against the FDIC must be dismissed. Finally, the court agrees with the governmentthat 

### itlacksjurisdiction to review the decision ofthe bankruptcy court for apossible taking. In orderto entertain Ms. Allen's bankruptcy-relatedtakings claim, the court "wouldhave to determine whether [Ms. Allen] suffered a categorical taking of[her] property at the hands ofthe bankruptcy trustees and courts .... Such a determination would require the court to scrutinize the actions ofthe bankruptcy trustees and courts." Allustiarte v. United States, 256 F.3d 1349, 1351-52 (Fed. Cir. 2001). Under binding Federal Circuitprecedent, this court is not permitted to conduct such a review. Id. Accordingly, plaintiffs claims againstthe bankruptcy court must be dismissed.

c. The government's motion to dismiss for failure to state a claim i. Standard ofreview To defeat a motion to dismiss for failure to state a claim under RCFC 12(b)(6), a plaintiffmust allege facts "plausibly suggesting (not merely consistent with) a showing of

7entitlement to relief." Kam-Almaz v. United States, 682 F.3d 1364, 1367 (Fed. Cir. 2012). Although the court assumes that all the allegations in the complaint-however doubtful in fact-are true, those facts "mustbe enough to raise a right to reliefabove the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007); Bank of Guam v. United States, 578 F.3d 1318, 1326 (Fed. Cir. 2009). As previously noted, in the context ofa takings claim, plaintiffmust allege that (1) she possessed a cognizable property interest and (2) that a "governmental action at issue amounted to a compensable taking ofthatproperty interest." Am. Pelagic Fishing Co., 379 F.3d at 1372. When no such cognizable property interest is found, the takings analysis cannot continue, and the complaint mustbe dismissed for failure to state a claim upon which reliefcan be granted. See Meyers v. United States, 96 Fed. Cl. 34, 62 (2010). ii. Plaintiffhas failed to state a claim for a taking with regard to HUDGinnie Mae and the VA The government argues thatplaintiffhas failed to allege that a cognizableproperty right has beentaken from her, and therefore has failed to state a claim against HUDGinnie Mae or the VA for a taking. In particular, the government contends that plaintiff fails to allege facts that raise a non-speculative claim that she provided funds to Washington Mutual (priorto receivership) that were not refunded to her when it entered receivership, and that any claims based on such an account do not state a non-frivolous taking allegation against the United States. In response, plaintiffargues that HUD-Ginnie Mae committed ataking by securitizing plaintiffspromissory note and by allegedly "funneling" Ms. Allen's loan payments to investors. Compl. 

## iii! 33-41. Plaintiffalso

8alleges that the VA took herproperty when the VA allegedly purchasedherhome at a foreclosure sale. 6 With regard to HUD-Ginnie Mae, the court agrees withthe governmentthat the decision to securitize her mortgage did not give rise to a "taking." Ms. Allen did not have aproperty interest in any particular entity holding her mortgage. See Patrick v. Bank ofNYMellon, No. 11-CV-01304-REB-MJW, 2012 WL 934288, at* 16 (D. Colo. Mar. 1, 2012), report and recommendation adopted, 11-CV-01304-REB-MJW, 2012 WL 934228 (D. Colo. Mar. 20, 2012), affd, 502 F. App'x 744 (10th Cir. 2012). Thus, Ms. Allen cannot state a claim with regard to HUD-Ginnie Mae's actions in connection with the decision to securitize her mortgage. Ms. Allen's taking claims based on allegations ofactions by the VA must also be dismissed for failure to state a claim. Ms. Allen alleges that the VA, as her loan guarantor, wrongfully authorized the foreclosure ofher home and took ownership ofthe premises in violation ofthe Fifth Amendment. The Government correctly argues that these contentions do not state a taking claim because Ms. Allen does not dispute that she did not make her mortgage payments to the bankholding her mortgage (Chase),7 and Chase, not the VA, foreclosed on the loan. In addition, Ms. Allen cannot state a taking claim against the VA for a taking after the foreclosure, when the VA allegedlypurchased

6Plaintiffs complaint alleges numerous legal conclusions concerning the legal effect ofcertain transactions between Washington Mutual, Chase, the FDIC, and the VA. The court is not obligated to accept legal conclusions as true. See Kam-Almaz, 682 F.3d at 1368. 7 Ms. Allen's mortgage note was transferred from Washington Mutual to Chase and Chase has been determined to be the rightful owner ofthe mortgage note. In re Allen, No. 10-20094-BFK, 2012 WL 3201837, at *4 (Bankr. E.D. Va. Aug. 2, 2012). 9the property at the foreclosure sale, because Ms. Allen lost herproperty interest in the home following the foreclosure. See Anderson v. United States, 85 Fed. Cl. 532, 544 (2009) (original mortgagor had no cognizable property interest afterthe VApurchased home at foreclosure sale). Because Ms. Allen cannot state a taking claim ifshe does not have a property interest, her claims against the VA must be dismissed. 

### III. CONCLUSION Forthe reasons explained above, the government's motion to dismiss the complaintpursuant to RCFC 12(b)(l) and RCFC 12(b)(6) is GRANTED.8 The Clerk shall enterjudgment accordingly. IT IS SO ORDERED.

8 Having dismissed plaintiff's complaint in its entirety, there is no basis for the courtto set a schedule for discovery orto require the government to file an answer to the complaint. Accordingly, plaintiffs previously stayed Motion for Clarification ofCivil Procedure in the Court ofFederal Claims, DocketNo. 13, is DENIED as moot. Plaintiffsmotion for a Temporary Restraining Order is similarly DENIED as moot. 10