UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

JOHN K. ZESTOS,

Plaintiff, CASE NO. 09-CV-10644

v. DISTRICT JUDGE THOMAS L. LUDINGTON

MAGISTRATE JUDGE CHARLES E. BINDER

FIRST MORTGAGE LOAN

SERVICING,

Defendant.

/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

RECOMMENDING SUA SPONTE DISMISSAL

I. RECOMMENDATION

IT IS RECOMMENDED that this case be SUA SPONTE DISMISSED for lack of subject

matter jurisdiction pursuant to Apple v. Glenn, 183 F.3d 477 (6th Cir. 1999).

II. REPORT

Plaintiff John K. Zestos filed this pro se action on February 20, 2009. By order of U.S.

District Judge Thomas L. Ludington, the case was referred to the undersigned Magistrate Judge

for general pretrial case management on February 24, 2009.

The authority to screen and sua sponte dismiss complaints under 28 U.S.C. § 1915(e)(2)

is limited to those complaints filed in forma pauperis. Benson v. O’Brian, 179 F.3d 1014, 1015

(6th Cir. 1999). Plaintiff in this case paid the filing fee and did not seek in forma pauperis status.

“Generally, a district court may not sua sponte dismiss a complaint where the filing fee has been

paid unless the court gives the plaintiff the opportunity to amend the complaint.” Apple v. Glenn,

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183 F.3d 477, 478 (6th Cir. 1999) (per curiam). A district court may, however, sua sponte dismiss

an action at any time for lack of subject matter jurisdiction when the allegations of a complaint are

“totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to

discussion.” Id. at 479. In such a case, the plaintiff need not be given an opportunity to amend.

Id.

The complaint in this case consists of the following paragraph:

Wrongful foreclosure, there were not standing legal grounds to foreclose plaintiff

never borrowed anything from G.M.A.C. Mortgage. After structures and contents

within were damaged by windstorm, 5-23-02, all contents were thrown away.

G.M.A.C. Mortgage bought the servicing of the loan. When the windstorm

damaged the collateral, the value changed to negative. Collected payments for two

years while house sat vacant. Demolished house but failed to deduct the appraised

value of the house. We are asking this honorable court the [sic] return of our deed

to our house and the money that was collected each month while the house was

vacant along with whatever this honorable court deems appropriate.

(Compl. at 1.) Construing the pro se complaint liberally, as required by Haines v. Kerner, 404

U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), Plaintiff seeks to overturn a past foreclosure

of a mortgage and asks that the deed to his house and an unspecified amount of money be returned

to him.

I suggest that this case be sua sponte dismissed for lack of subject matter jurisdiction as the

complaint is devoid of merit because foreclosure and redemption of real property is a matter of

state law over which this Court has no jurisdiction. See MICH. COMP. LAWS § 125.1448a (“The

circuit court has jurisdiction to foreclose mortgages of real estate . . . .”); MICH. COMP. LAWS §

600.1605 (“The county in which the subject of action . . . is situated, is a proper county in which

to commence and try” an action for “the recovery of real property” and “the foreclosure of all liens

or mortgages on real property . . . .”); MICH. COMP. LAWS § 600.3140 (covering the redemption

of foreclosed property). 

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Plaintiff’s use of the term “wrongful foreclosure” and his assertion that there was “no

standing legal ground to foreclose” clearly indicates that a Michigan court has already entered a

judgment of foreclosure which Plaintiff seeks to have overturned. This Court has no power to

overturn state court judgments pursuant to the Rooker-Feldman doctrine. The Sixth Circuit has

explained the foundation of the doctrine as follows:

In District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303,

75 L. Ed. 2d 206 (1983), the Supreme Court held that federal court review of state

court proceedings is jurisdictionally limited to the Supreme Court of the United

States by 28 U.S.C. § 1257. See also Patmon v. Michigan Sup. Ct., 224 F.3d 504,

506 (6th Cir. 2000). We refer to this doctrine as the Rooker-Feldman doctrine. See

also Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149, 68 L. Ed. 362 (1923).

The Feldman Court stated that “United States District Courts . . . do not have

jurisdiction . . . over challenges to state court decisions in particular cases arising out

of judicial proceedings even if those challenges allege that the state court’s action

was unconstitutional. Review of those decisions may only be had in this Court.”

Feldman, 460 U.S. at 486, 103 S. Ct. 1303; see also Anderson v. Charter Township

of Ypsilanti, 266 F.3d 487, 492 (6th Cir. 2001).

Tropf v. Fidelity Nat’l Title Ins. Co., 289 F.3d 929, 936 (6th Cir. 2002). The Supreme Court

recently reviewed the doctrine’s applicability and stated:

The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind from

which the doctrine acquired its name: cases brought by state-court losers

complaining of injuries caused by state-court judgments rendered before the district

court proceedings commenced and inviting district court review and rejection of

those judgments.

Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 125 S. Ct. 1517, 1521-22, 161

L. Ed. 2d 454 (2005). Lower federal courts also lack jurisdiction to review any federal claims that

are “inextricably intertwined” with a state court’s decision. See Feldman, 460 U.S. at 486-87. A

plaintiff’s federal claim is inextricably intertwined if the claim can succeed only to the extent that

the state court wrongly decided the issues before it. Catz v. Chalker, 142 F.3d 279, 293 (6th Cir.

1998) (“‘Where federal relief can only be predicated upon a conviction that the state court was

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wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a

prohibited appeal of the state-court judgment.’”) (quoting Keene Corp. v. Cass, 908 F.2d 293, 296-

97 (8th Cir.1990)).

In this case, in order to grant the relief Plaintiff seeks, this Court would have to alter,

amend, or annul the state court’s order of foreclosure. In other words, Plaintiffs seek to undo a

state court judgment, and as the Rooker-Feldman doctrine instructs, the United States Supreme

Court is the only federal court with jurisdiction to do so. 

Accordingly, I suggest that the complaint is devoid of merit and should be sua sponte

dismissed.

III. REVIEW

The parties to this action may object to and seek review of this Report and Recommendation

within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1). Failure

to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474

U.S. 140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Howard v. Sec’y of Health & Human Servs., 932

F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are

advised that making some objections, but failing to raise others, will not preserve all the objections

a party may have to this Report and Recommendation. Willis v. Sec’y of Health & Human Servs.,

931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370,

1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be

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served upon this Magistrate Judge.

 s/ Charles` E Binder 

CHARLES E. BINDER 

Dated: March 20, 2009 United States Magistrate Judge

CERTIFICATION

I hereby certify that this Report and Recommendation was electronically filed this date,

served on John Zestos by First Class Mail, and served on U.S. District Judge Thomas

Ludington in the traditional manner.

Dated: March 20, 2009 By s/Mimi D. Bartkowiak 

Law Clerk to Magistrate Judge Binder

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