UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JAMES PERKINS, et al., 

Plaintiffs,

Case No. 2:11-cv-952

v. JUDGE GREGORY L. FROST

Magistrate Judge E.A. Preston Deavers

WELLS FARGO BANK, N.A., et al.,

Defendants.

OPINION AND ORDER

The captioned case is an action brought by Plaintiffs James Perkins and Marianne

Perkins, who are proceeding pro se and assert twenty-one claims related to underlying state court

foreclosure proceedings that resulted in a scheduled December 16, 2011 sheriff’s sale of their

residence. Plaintiffs have named as defendants two banks, Wells Fargo Bank, N.A. (“Wells

Fargo”) and Fifth Third Bank, as well as the law firm involved in the state proceedings, Lerner,

Sampson & Rothfuss.

On November 9, 2011, Plaintiffs filed a motion for a preliminary injunction by which

they seek to stop the sheriff’s sale. (ECF No. 12.) Pursuant to S. D. Ohio Civ. R. 65.1(a), this

Court therefore held an informal preliminary telephone conference with the parties on November

14, 2011. The Court then set an expedited briefing schedule on the preliminary injunction

motion. (ECF No. 19.) Wells Fargo filed a memorandum in opposition in accordance with that

briefing schedule (ECF No. 25) and Plaintiffs filed both an affidavit (ECF No. 26) and a reply

memorandum (ECF No. 27). Plaintiffs have also filed an amended complaint. (ECF No. 23.)

The preliminary injunction motion came on for a hearing on November 30, 2011, at which

Plaintiffs presented testimony and the parties presented oral argument on the issues raised.

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In its briefing and at the hearing, Wells Fargo asserted that Plaintiffs are impermissibly

attempting to have this Court review state court judgments. Review of the various attachments

to the briefing and the pleading indicates that Plaintiff lost in the state courts, both in the

common pleas court and the court of appeals. They have also recently unsuccessfully attempted

to obtain relief from the common pleas court judgment by way of a motion that included many of

the grounds they assert create the claims presented in their amended complaint before this Court. 

Whether Wells Fargo is correct that at the heart of these claims is an attempt to reverse the state

court proceedings and that such action is barred by the Rooker-Feldman doctrine is open to some

debate. 

Recently, a judicial officer in the Northern District of Ohio addressed the application of

this doctrine in a case that similarly arose from a state foreclosure proceeding and in which a pro

se plaintiff similarly sought relief related to alleged fraud. That judicial officer explained:

As a threshold matter, this Court cannot void the judgment of foreclosure. 

Federal district courts do not have jurisdiction over challenges to state court

decisions even if those challenges allege that the State court's action was

unconstitutional. See District of Columbia Court of Appeals v. Feldman, 460 U.S.

462, 483 n. 16, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co.,

263 U.S. 413, 415–16, 44 S.Ct. 149, 68 L.Ed. 362 (1923). Federal appellate review

of state court judgments can only occur in the United States Supreme Court, by

appeal or by writ of certiorari. Id. Under this principle, generally referred to as the

Rooker–Feldman Doctrine, a party losing his case in state court is barred from

seeking what in substance would be appellate review of the state judgment in a

United States District Court based on the party’s claim that the state judgment itself

violates his or her federal rights. Johnson v. DeGrandy, 512 U.S. 997, 1005–06, 114

S.Ct. 2647, 129 L.Ed.2d 775 (1994). Federal jurisdiction cannot be invoked merely

by couching the claims in terms of a civil rights action. Lavrack v. City of Oak Park,

No. 98–1142, 1999 WL 801562, at *2 (6th Cir. Sept. 28, 1999); see Valenti v.

Mitchell, 962 F.2d 288, 296 (3d Cir. 1992).

The United States Sixth Circuit Court of Appeals has applied two elements

to a Rooker[-]Feldman analysis. First, in order for the Rooker–Feldman doctrine to

apply to a claim presented in federal district court, the issue before the court must be

inextricably intertwined with the claim asserted in the state court proceeding. Catz

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v. Chalker, 142 F.3d 279, 293 (6th Cir. 1998); see Tropf v. Fidelity National Title

Insurance Co., 289 F.3d 929, 937 (6th Cir. 2002). “Where federal relief can only be

predicated upon a conviction that the state court was wrong, it is difficult to conceive

the federal proceeding as, in substance, anything other than a prohibited appeal of

the state court judgment.” Catz, 142 F.3d at 293. The Rooker–Feldman doctrine

applies when the party losing his case in state court files suit in federal district court

seeking redress for an injury allegedly caused by the state court’s decision itself. 

Coles v. Granville, 448 F.3d 853, 857–59 (6th Cir. 2006). Second, the

Rooker–Feldman doctrine precludes a district court’s jurisdiction where the claim

is a specific grievance that the law was invalidly or unconstitutionally applied in

plaintiffs’ particular case as opposed to a general constitutional challenge to the state

law applied in the state action. Id.

In the present action, Plaintiff essentially questions the state court’s decision

granting a foreclosure and sale. Any review of federal claims asserted in this context

would require the Court to review the specific issues addressed in the state court

proceedings against him. This Court lacks subject matter jurisdiction to conduct

such a review or grant the relief as requested. Feldman, 460 U.S. at 483–84 n.16;

Catz, 142 F.3d at 293.

Dunn v. Clunk, No. 1:11 CV 2075, 2011 WL 4730406, at *1-2 (N.D. Ohio Oct. 7, 2011). This

same rationale might apply in the instant case where, in order to grant relief on the claims

Plaintiffs assert, this Court would be called upon to revisit and invalidate the state courts’

decisions. 

As counsel for Wells Fargo acknowledged toward the end of the hearing, not all judicial

officers have applied the Rooker-Feldman doctrine in foreclosure cases. For example, in

Fletcher v. Federal National Mortgage Association, No. 3:11cv00083, 2011 WL 5175611 (S.D.

Ohio Oct. 4, 2011), a judicial officer from this District addressed a situation in which pro se

plaintiffs brought a federal case arising from a state foreclosure proceeding, but that magistrate

judge rejected the contention that Rooker-Feldman applied. The Fletcher magistrate judge

explained:

The Rooker–Feldman Doctrine prevents federal district courts from exercising

appellate jurisdiction over state court judgments and applies to cases, “brought by

state-court losers complaining of injuries caused by state-court judgments rendered

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before the district court proceedings commenced and inviting district court review

and rejection of those judgments.” Exxon–Mobil Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Accordingly, federal

district courts lack jurisdiction under Rooker–Feldman when (1) a case is brought by

parties unsuccessful in state court, (2) the plaintiff complains of injuries caused by

state-court judgments, (3) the state-court judgment was rendered prior to the district

court proceedings commencing, and (4) plaintiffs invite the district court to review

and reject those state-court judgments. Id.

Because there is little question that Plaintiffs were unsuccessful in their statecourt claims, the state-court judgments were rendered prior to proceedings

commencing in this Court, and that Plaintiffs plainly seek rejection of those

judgments, the sole question is whether the injuries of which Plaintiffs complain

were caused by the state-court judgments.

Defendants correctly point out that the key to such a determination is the

source of the alleged injuries. (Doc. # 18 at 127). However, they mistakenly rely on

an unpublished opinion (Kafele v. Lerner, Sampson & Rothfuss, L.P.A., 161 Fed.

Appx. 487, 490, 2005 U.S.App. LEXIS 28680, *8 (6th Cir. 2005)) to support their

determination that Plaintiffs are complaining of injuries caused by the state-court

judgments. (Doc. # 18 at 7). The Eastern Division of the United States District

Court for the Southern District of Ohio held Kafele to have limited precedential

value because (1) unpublished decisions are not controlling authority and (2) Kafele

failed, “to recognize a significant change in circuit law wrought by the Supreme

Court's ruling in Exxon Mobile, earlier the same year.” Miller v. Countrywide Home

Loans, Inc. 747 F. Supp. 2d 947, 957 (S.D. Ohio 2010) (citations omitted).

In order to provide guidance in the wake of Exxon–Mobil Corp., the United

States Court of Appeals for the Sixth Circuit explained:

Federal jurisdiction is proper if a federal plaintiff presents an

independent claim, “albeit one that denies a legal conclusion that a

state court has reached in a case to which he was a party.” Id. [ Exxon

Mobile Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293, 125

S.Ct. 1517, 161 L.Ed.2d 454 (2005) ] (quoting GASH Assocs. v.

Rosemont, 995 F.2d 726, 728 (7th Cir.1993)). In the wake of Exxon

Mobil Corp., we recently adopted a Fourth Circuit rule to

differentiate between claims attacking state-court judgments, which

are barred by Rooker–Feldman, and independent claims, over which

lower federal courts have jurisdiction. The focus, we held, must be on

... the source of the injury that the plaintiff alleges in

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the federal complaint. If the source of the injury is the

state court decision, then the Rooker–Feldman

doctrine would prevent the district court from

asserting jurisdiction. If there is some other source of

injury, such as a third party's actions, then the plaintiff

asserts an independent claim.

 McCormick [v. Braverman ], 451 F.3d [382] at 393 [(6th. Cir.2006)]. 

Thus, a complaint in which the plaintiff contends he was injured by

the defendants, rather than by the state court decision itself, is not

barred by Rooker–Feldman, even if relief is predicated on denying

the legal conclusion reached by the state court.

Brown v. First Nationwide Mortg. Corp., 206 Fed.Appx. 436, 439 (6th Cir.2006).

The Sixth Circuit Court addressed a situation similar to the matter sub judice

in Todd v. Weltman, Weinberg & Reis Co., L.P .A., 434 F.3d 432 (6th Cir. 2006). In

Todd, the Plaintiff filed a complaint in the U.S. District Court for the Southern

District of Ohio claiming that Defendant had filed a false affidavit as part of a

garnishment action Defendant had previously executed against Plaintiff in Ohio state

court. Id. At 435. The Defendant filed a motion to dismiss arguing, inter alia, that

the Rooker–Feldman Doctrine barred jurisdiction. Id. At 434.

Applying the Supreme Court’s holding in Exxon–Mobile, the Sixth Circuit

stated:

The Rooker–Feldman doctrine does not preclude jurisdiction

over Plaintiff’s claim. Defendant in the instant case claims this Court

lacks subject matter jurisdiction because Plaintiff’s federal claim is

inextricably intertwined with the Ohio state court decision that

Defendant's affidavit was valid. This argument ignores the fact that

Plaintiff here does not complain of injuries caused by this state court

judgment, as the plaintiffs did in Rooker and Feldman. Instead, after

the state court judgment, Plaintiff filed an independent federal claim

that Plaintiff was injured by Defendant when he filed a false affidavit. 

This situation was explicitly addressed by the Exxon–Mobil Court

when it stated that even if the independent claim was inextricably

linked to the state court decision, preclusion law was the correct

solution to challenge the federal claim, not Rooker–Feldman. While

Defendant is technically correct that this guidance was not essential

to the holding on the facts of Exxon Mobil, as that case dealt with

parallel state and federal proceedings, the Supreme Court went

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beyond the facts of the case to give clear instructions to the circuits

on how to address additional factual situations. To follow the

reasoning of Defendant would be to ignore these unambiguous

directives from the Supreme Court.

A brief reading of Plaintiffs’ complaint shows it is clear that Plaintiffs claim

their injuries were caused by the Defendants, rather than the state-court judgment. 

Plaintiffs’ claims include allegations of false affidavits, insufficient notice, and

failure to show standing. (Doc. # 2 at 16). All of Plaintiffs’ claims are based on

alleged conduct of the Defendants. Furthermore, the claims presented by Plaintiffs

were not raised or addressed in the state-court action and are therefore independent

claims permissible under Rooker–Feldman. Accordingly, Plaintiffs claim is not

barred under the Rooker–Feldman Doctrine.

Fletcher, 2011 WL 5175611, at *2-4. Under this analysis, the preclusive effect of the RookerFeldman doctrine that proved dispositive in Dunn would not apply in the case sub judice. 

This does not mean, however, that this Court could necessarily proceed to address the

merits of Plaintiffs’ claims. Additional analysis in Fletcher provides:

Although the Rooker–Feldman Doctrine does not prevent this Court from

exercising jurisdiction, preclusion prevents the Court from providing Plaintiffs the

relief they seek. The difference is that preclusion is not a jurisdictional matter. 

Exxon–Mobil, 544 U.S. at 293.

The Full Faith and Credit Act, 28 U.S.C. § 1738, requires federal courts to,

“give the same preclusive effect to a state-court judgment as another court of that

State would give.” Id. at 293 (citing Parsons Steel, Inc. v. First Alabama Bank, 474

U.S. 518, 523, 106 S.Ct. 768, 88 L.Ed.2d 877 (1986)). Furthermore, 18 U.S.C. §

1257 provides that only the United States Supreme Court shall have authority to

review final judgments rendered by a state’s highest court. “Because the Supreme

Court was specifically given jurisdiction to hear appeals from final judgments of the

highest state courts, lower federal courts do not have jurisdiction to review such

judgments.” Peiper v. Am. Arbitration Ass’n, 336 F.3d 458, 461 (6th Cir. 2003)

(citing District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103

S.Ct. 1303, 75 L.Ed.2d 206 (1983)).

Plaintiffs state in their prayer for relief, “I want the Court to stop all

impending action against my home. I want the Court to vacate all actions the

Defendant prevailed using false affidavits.” (Doc. # 2 at 16). As a court of original

jurisdiction, this Court lacks the authority to vacate a state-court judgment. See

Feldman, 460 U.S. at 483.

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Fletcher, 2011 WL 5175611, at *4. This latter analysis, subsequently adopted by a district judge

in Fletcher v. Federal National Mortgage Association, No. 3:11cv083, 2011 WL 5191392, at *1

(S.D. Ohio Oct. 31, 2011), arguably could inform the Court’s disposition of the issues Plaintiffs

have placed before the Court. 

In relevant part, Plaintiffs state in their prayer for relief that they seek:

a. The immediate issuance of a Preliminary Injunction or Temporary

Restraining Order precluding the foreclosure sale of their property or

any other disposition of the subject property pending the

determination of this action.

. . . 

d. That the Court find the transactions the subject of this action are

illegal and void.

e. That the foreclosure which was instituted be deemed and declared

illegal and void and that further proceedings in connection with the

foreclosure be enjoined. 

(ECF No. 23, at 64.) Such requests echo the relief impermissibly sought in Fletcher. At the

same time, however, Plaintiffs also seek monetary damages. Marianne Perkins testified that

Plaintiffs ask for damages, injunctive relief, and to “divest” Wells Fargo of the house based on

her feeling that there has not been a “valid” foreclosure process. In asking for more than the

relief sought in Fletcher, Plaintiffs arguably push at least one aspect of the case again back

toward a Rooker-Feldman issue. 

Ultimately, it does not matter in terms of disposition whether the Rooker-Feldman

doctrine rationale of Dunn or the doctrine of preclusion rationale of Fletcher applies here. The

end result is the same. Under either analysis, as well as most likely under a res judicata analysis

as presented by Wells Fargo, this Court is unable to grant Plaintiffs a stay of the sheriff’s sale,

and that is a conclusion sufficient to dispose of the injunctive relief motion. See Baker v.

People’s Choice Home Loan, Inc., No. 3:10-cv-327, 2010 WL 3447614, at *2-3 (S.D. Ohio Aug.

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27, 2010) (noting problem with determining source of injury in foreclosure injunction case and

concluding that “[o]n the basis of the evidence before it, this Court cannot determine definitively

whether its subject matter jurisdiction is ousted by the Rooker-Feldman doctrine or whether the

action is barred on the merits by res judicata. However, it is clear that Plaintiff has not

established that it is likely she will prevail on the merits.”).

Even if this Court were wholly incorrect and the Dunn or Fletcher approaches cannot

apply here, the request for injunctive relief fails on the merits. In considering whether injunctive

relief is warranted, this Court must consider (1) whether Plaintiffs have demonstrated a strong

likelihood of success on the merits; (2) whether Plaintiffs will suffer irreparable injury in the

absence of equitable relief; (3) whether a stay would cause substantial harm to others; and (4)

whether the public interest is best served by granting a stay. Cooey v. Strickland, 589 F.3d 210,

218 (6th Cir. 2009) (citing Workman v. Bredesen, 486 F.3d 896, 905 (6th Cir. 2007); Ne. Ohio

Coal. for Homeless & Serv. Employees Int’l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009

(6th Cir. 2006)). The Sixth Circuit has explained, “ ‘[t]hese factors are not prerequisites that

must be met, but are interrelated considerations that must be balanced together.’ ” Id. (quoting

Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.

1991)).

Plaintiffs have failed to demonstrate a strong likelihood of success on the merits. 

Marianne Perkins testified that she “feels” that Plaintiffs have proven their RICO claim “95%,”

but Plaintiffs failed to offer much in the way of actual evidence to support this feeling. Rather,

Plaintiffs “ask[] this Court to build inference upon inference and to accept conclusory

speculation as evidence.” Nuovo v. Whitacre, No. 2:10-cv-240, 2010 WL 2294271, at *4 (S.D.

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Ohio June 3, 2010). This is problematic for Plaintiffs because, as this Court has previously

noted, “[s]peculation is not evidence.” Cooey v. Strickland, No. 2:04-cv-1156, 2010 WL

1610608, at *2 (S.D. Ohio Apr. 16, 2010). Marianne Perkins testified a number of times and

stated in oral argument that discovery is needed. Such discovery may or may not uncover

evidence that would support Plaintiffs’ claims. The absence of supporting evidence at this

juncture precludes this Court from concluding that the first factor weighs in favor of granting

injunctive relief.

Plaintiffs have similarly failed to establish that they will suffer irreparable injury in the

absence of equitable relief. This Court recognizes the subjective emotional issues surrounding

the loss of a residence, but the Court is cognizant that “although Plaintiffs face what could be the

imminent removal from their home, they have not shown that they will suffer irreparable harm

from the occurrence of that event.” Fletcher v. Fed. Nat’l Mortg. Ass’n, No. 3:11cv00083, 2011

WL 1337422, at *3 (S.D. Ohio Mar. 18, 2011). Rather, “if they eventually prove one or more

violations of their legal rights, they may be entitled to recover monetary/compensatory

damages.” Id. The Sixth Circuit has explained that “a plaintiff’s harm is not irreparable if it is

fully compensable by money damages.” Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th

Cir. 1992).

In addition to removal from the house in which they are currently residing, Plaintiffs also

assert that the effect of a foreclosure on their credit reports presents irreparable harm. This

argument fails to credit (as discussed above) that this Court cannot invalidate the foreclosure

judgment as a form of relief. At best, this Court could award only monetary damages. 

Moreover, Plaintiffs have failed to present any evidence that the sheriff’s sale (as opposed to the

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foreclosure judgment) would harm their credit reports.

Because neither of the first two factors in the injunctive relief inquiry weigh at all in

Plaintiffs’ favor, this Court will not discuss the remaining two factors, which implicate some

complicated issues upon which little or no evidence was presented. See, e.g., Baker, 2010 WL

3447614, at *4 (“It is impossible to tell whether the public interest favors stopping one more

foreclosure sale in an area of the nation with an extraordinary burden of such sales at the present

or whether, instead, the health of the residential real estate market might be boosted by rapid

enforcement of mortgage obligations.”). Additionally, having concluded that the request for a

preliminary injunction fails on multiple grounds, this Court need not and will not discuss Wells

Fargo’s remaining alternative arguments against injunctive relief.

The Court DENIES Plaintiffs’ motion for a preliminary injunction. (ECF No. 12.) 

IT IS SO ORDERED.

 /s/ Gregory L. Frost 

GREGORY L. FROST

UNITED STATES DISTRICT JUDGE

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