UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CINDY LYNN REVERE,

Plaintiff,

v. Case No. 09-11851

Honorable Patrick J. Duggan

BANK OF NEW YORK as TRUSTEE

FOR S SCWABS INC., WILMINGTON

FINANCE a division of AIG FEDERAL

SAVINGS BANK, DEVON TITLE AGENCY,

COUNTRYWIDE HOME LOANS, and MERS,

Defendants.

____________________________/

OPINION AND ORDER 

At a session of said Court, held in the U.S.

District Courthouse, Eastern District

of Michigan, on May 18, 2009.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

 U.S. DISTRICT COURT JUDGE

Plaintiff initiated this pro se action against Defendants on May 14, 2009,

challenging foreclosure and eviction proceedings related to real property located at 2640

Hummer Lake Road in Ortonville, Michigan (“property”). With her Complaint, Plaintiff

has filed an “Emergency Ex-Parte Motion for Stay of Eviction Proceedings.” For the

reasons that follow, Plaintiff’s motion is denied.

Factual and Procedural Background

According to the documents attached to Plaintiff’s Complaint, on November 23,

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2005, Plaintiff signed a mortgage on the property in connection with a loan in the amount

of $282,000 from Defendant Wilmington Finance, a division of AIG Federal Savings

Bank. (Compl. Ex. 3 at 2.) The mortgage identified Defendant Mortgage Electronic

Registration Systems, Inc. (“MERS”) as the mortgagee. (Id.) On October 4, 2007,

Plaintiff was notified that foreclosure proceedings were being instituted against the

property as a result of outstanding mortgage debt totaling $294,018.05. (Id., Ex. 7 at 3.) 

A foreclosure sale occurred on November 6, 2007. (Id. at 4-5.) According to the

Sheriff’s Deed, MERS was the highest bidder at the sale and the property was conveyed

to it for $297,089.70. (Id. at 7.) On November 16, 2007, MERS quit claimed the

property to Defendant Bank of New York “as Trustee for the Certificateholder [sic] S

Cwabs, Inc. Asset-Backed Certificates, Series 2006-BC2” (“Bank of New York as

Trustee”). (Id. at 10 (capitalization removed).)

On November 19, 2008, as “representative of the new owner of the property,”

Defendant Countrywide (“Countrywide”) informed Plaintiff of its intent to market and

sell the property. (Compl. Ex. 7 at 15.) Countrywide further informed Plaintiff:

“Countrywide thus will soon begin legal proceedings necessary to take possession of the

property, otherwise known as an eviction.” (Id.) According to Countrywide’s notice,

although it might start the eviction process, it would “not attempt to formally take

possession of the property until January 18, 2009 or until legally allowed by state law,

whichever is later.” (Id.) In other words, as Countrywide provided: “. . . you have until

January 18, 2009, or later if required by law, to voluntarily vacate the property. After that

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time, Countrywide will attempt to take possession in accordance with state law.” (Id.)

On November 20, 2008, the Bank of New York as Trustee filed a complaint for

termination of tenancy against Plaintiff, “Mr. Occupant,” and “Mrs. Occupant” in the

52nd District Court- 2nd Division in Clarkston, Michigan (“state court”). (Compl. Ex. 7

at 16.) In its state court complaint, the Bank of New York as Trustee asserted that it “has

terminated tenancy and has a right to possession of the property because . . . Defendants

are wrongfully holding over after the expiration of the redemption period following a

mortgage foreclosure sale. (Id. (emphasis removed).) A summons was issued informing

Plaintiff of the state court complaint and summoning her to appear in court on December

16, 2008. (Id. at 17.) The summons provides, in part: “If you are in district court on time,

you will have the opportunity to give the reasons why you feel you should not be evicted. 

Bring witnesses, receipts, and other necessary papers with you.” (Id.)

Following a hearing in the state court on December 16, 2008, at which Plaintiff

was present (see Mot. at 5), 52nd District Court Judge Kelley Kostin issued a judgment

finding that the Bank of New York as Trustee has a right to possession of the property. 

(Compl. Ex. 2 at 3.) The judgment indicates that an order evicting Plaintiff would be

issued on or after January 30, 2009. (Id.) The judgment advised Plaintiff that she “may

file a motion for a new trial, a motion to set aside a default judgment, or file an appeal and

appeal bond.” (Id.) There is no indication in Plaintiff’s pleadings or the exhibits attached

thereto that she took any action in response to the judgment.

On May 11, 2009, pursuant to the judgment, Judge Kostin issued an order of

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eviction. (Compl. Ex. 1 at 1.) Plaintiff thereafter filed the pending action and motion.

Plaintiff’s Emergency Motion

In her motion, Plaintiff asks this Court to stay the writ of eviction pending the

disposition of her Complaint. Plaintiff indicates that “newly discovered evidence places

[her] and her children in eminent danger of being wrongfully evicted, . . .” (Mot. at 3.) 

According to Plaintiff, she and Countrywide “had an agreement or a meeting of the

minds” that eviction proceedings would not begin until January 19, 2009” and she was

unable to prepare a defense when she “was collaterally stunned and attacked with” the

summons to appear for the eviction hearing on December 16, 2008. (Id. at 4-5.) Plaintiff

indicates that, although she appeared at the December 16 hearing, she was “unprepared to

defend and [was] completely bewildered.” (Id. at 5.) Plaintiff provides that, since that

time, she has concluded that Defendants have perpetrated major fraud upon her. (Id.) 

Plaintiff argues that the Bank of New York as Trustee has failed to present or produce any

contract with Plaintiff and therefore lacks standing to bring the eviction proceedings

against her. (Id. at 6.) Plaintiff also alleges that Judge Kostin “made a pre-disposed

ruling against [her] . . .” (Id.)

Analysis

Plaintiff seeks relief from the state court’s eviction order in her pending motion. 

Pursuant to the Rooker-Feldman doctrine, this Court lacks subject matter to grant Plaintiff

relief. Under that doctrine, “lower federal courts lack subject matter jurisdiction to

review the decisions of state courts.” Givens v. Homecomings Financial, 278 Fed. App’x

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607, 608-09 (6th Cir. May 20, 2008) (unpublished opinion) (attached as Ex. 1) (citing

D.C. Ct. of App. v. Feldman, 460 U.S. 462, 476, 103 S. Ct. 1303, 1311 (1983) and Rooker

v. Fid. Trust Co., 263 U.S. 413, 416, 44 S. Ct. 149, 150 (1923)). As the Supreme Court

recently clarified, application of the Rooker-Feldman doctrine “is confined to . . . cases

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

rendered before the district court proceedings commenced and inviting [federal] district

court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus.

Corp., 544 U.S. 280, 284, 125 S. Ct. 1517,1521-22 (2005).

The circumstances of the present case are identical to those in Givens. Like the

plaintiff in that case, Plaintiff lost a state court foreclosure and possession action that

culminated in an eviction order. Givens, 278 Fed. App’x at 608. Also like the plaintiff in

Givens, Plaintiff is asking a federal district court to temporarily enjoin the execution of

the state court order. As the Sixth Circuit concluded in Givens, this Court lacks

jurisdiction to adjudicate Plaintiff’s request.

Accordingly,

IT IS ORDERED, that Plaintiff’s Emergency Ex-Parte Motion for Stay of

Eviction Proceedings is DENIED.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Cindy Lynn Revere

2640 Hummer Lake Road

Ortonville, MI 48462

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Exhibit 1

This case was not selected for publication in the Federal Reporter.

Not for Publication in West's Federal Reporter See Fed. Rule of Appellate Procedure 32.1

generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Sixth

Circuit Rule 28. (Find CTA6 Rule 28)

United States Court of Appeals,

Sixth Circuit.

Jason GIVENS, Plaintiff-Appellant,

v.

HOMECOMINGS FINANCIAL, Defendant-Appellee,

Trott & Trott, P.C., Defendant-Appellee,

Susan Myers, Defendant-Appellee.

No. 07-2359.

May 20, 2008.

Background: Mortgagor brought Fair Debt Collection Practices Act (FDCPA) action against

mortgagee following state court order granting mortgagee possession of residence due to

mortgagor's default. The United States District Court for the Eastern District of Michigan dismissed

the action. Mortgagor appealed.

Holdings: The Court of Appeals, Rogers, Circuit Judge, held that:

(1) federal court lacked subject matter jurisdiction over action under Rooker- Feldman doctrine, and

(2) action was also barred by res judicata.

Affirmed.

West Headnotes

[1] Courts 106 509

106 Courts

 106VII Concurrent and Conflicting Jurisdiction

 106VII(B) State Courts and United States Courts

 106k509 k. Vacating or Annulling Decisions. Most Cited Cases

Federal court lacked subject matter jurisdiction over Fair Debt Collection Practices Act (FDCPA)

action brought against mortgagee following state court order granting mortgagee possession of

2:09-cv-11851-PJD-VMM Doc # 4 Filed 05/18/09 Pg 6 of 9 Pg ID 236
residence due to mortgagor's default on mortgage, under Rooker- Feldman doctrine, since FDCPA

action was effectively an attempt to appeal the state court order. Fair Debt Collection Practices Act,

§ 802 et seq., 15 U.S.C.A. § 1692 et seq.

[2] Mortgages 266 497(1)

266 Mortgages

 266X Foreclosure by Action

 266X(K) Judgment or Decree

 266k497 Conclusiveness, Operation, and Effect of Judgment or Decree

 266k497(1) k. In General. Most Cited Cases

Fair Debt Collection Practices Act (FDCPA) action that was brought against mortgagee after state

court order granted mortgagee possession of residence due to mortgagor's default on mortgage was

barred by res judicata, since it was based on issue of whether mortgagee was entitled to possession

of the property, and this issue had been litigated in the state courts. Fair Debt Collection Practices

Act, § 802 et seq., 15 U.S.C.A. § 1692 et seq.

*608 On Appeal from the United States District Court for the Eastern District of Michigan.

Before: ROGERS, COOK, and McKEAGUE, Circuit Judges.

ROGERS, Circuit Judge.

**1 Jason Givens appeals the dismissal of his Fair Debt Collection Practices Act (“FDCPA”) action

under the doctrines of Rooker- Feldman and res judicata. Givens's mortgagee obtained a state court

order granting it possession of Givens's residence after he defaulted on his home mortgage. Givens

then filed the immediate action in district court, seeking an injunction barring the enforcement of

the order of possession. Because Givens's suit is essentially an appeal from a state court decision,

we affirm. The federal district courts do not hear appeals from state courts.

In December 2004, Givens executed a mortgage on his home. He defaulted on the loan shortly

thereafter, and the mortgagee, JP Morgan Chase bank, foreclosed. After a sheriff's sale was held, JP

Morgan Chase brought an eviction action in Michigan's 36th District Court. That court issued an

order granting possession to JP Morgan Chase and requiring Givens to vacate the premises. Givens

appealed that judgment to the Wayne County Circuit Court, but the appeal was dismissed due to his

failure to file a transcript of the lower court proceedings.

In December 2006, Givens brought the instant action in federal district court against Homecomings

Financial, who was JP Morgan Chase's loan servicer, as well as against the attorneys who assisted

JP Morgan Chase in the state proceedings. Givens alleged that defendants violated the FDCPA by

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failing to provide him with sufficient verification of his debt. He also brought related claims for

conspiracy, intentional infliction of emotional distress, and violations of RICO. Foremost among the

remedies requested, Givens asked that the district court issue a preliminary injunction enjoining

defendants from entering the property at issue and “dispos[ing] of” the order of possession. After

defendants moved for summary judgment, the district court dismissed Givens's complaint. The

district court concluded that, under the Rooker- Feldman doctrine, it lacked subject matter

jurisdiction over the suit because Givens was asking it to reverse the state court judgment. In the

alternative, it held that Givens's suit was barred by the doctrine of res judicata, as his claims were

either litigated, or could have been, during the state proceeding.

[1] The district court was correct. Because Givens is effectively attempting to appeal from the state

order granting possession to JP Morgan Chase, his suit was properly dismissed under RookerFeldman. Pursuant to that doctrine, lower federal courts lack subject matter jurisdiction*609 to

review the decisions of state courts. D.C. Ct. of App. v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303,

75 L.Ed.2d 206 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 416, 44 S.Ct. 149, 68 L.Ed. 362

(1923). As the Supreme Court has recently clarified, however, the application of Rooker- Feldman

is confined to “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 Indus. Corp., 544 U.S.

280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Thus, Rooker- Feldman deprives a lower court

of jurisdiction only when the cause of the plaintiff's complaints is the state judgment itself.

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

**2 Givens's suit fits squarely within this narrow range of cases over which jurisdiction does not

exist. It is clear from his complaint that the source of Givens's injuries is the state possession order.

Revealingly, the primary relief that Givens requests in his complaint is a temporary injunction that

would “enjoin Defendants from physically entering onto plaintiff[']s property” and that would

“dispos[e] ... of any other civil or procedural action regarding the subject property.” Because the

point of this suit is to obtain a federal reversal of a state court decision, dismissal on the grounds of

Rooker- Feldman was appropriate.FN1 See Kafele v. Lerner, Sampson & Rothfuss, L.P.A., 161

Fed.Appx. 487, 489-90 (6th Cir.2005) ( Rooker- Feldman barred FDCPA action filed after entry of

state foreclosure decree and order of sale).

FN1. Even assuming that Givens's claims for intentional infliction of emotional distress

could be construed as independent claims for relief, he has not made any arguments that

even remotely assert this on appeal. This court consequently declines to address that issue.

See Overstreet v. Lexington-Fayette Urban County Gov't, 305 F.3d 566, 578 (6th Cir.2002).

[2] For similar reasons, Givens's suit is also barred by the doctrine of res judicata. As discussed,

Givens's arguments all come down to one premise: that JP Morgan Chase was not entitled to

possession of the property in question. That issue, however, has already been litigated in the

Michigan courts. Under Michigan law, a party may not bring a second, subsequent action when “(1)

the prior action was decided on the merits, (2) both actions involve the same parties or their privies,

and (3) the matter in the second case was, or could have been, resolved in the first.” Adair v. State,

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470 Mich. 105, 680 N.W.2d 386, 396 (2004). Because all of those criteria are satisfied here,

dismissal was proper.

C.A.6 (Mich.),2008.

Givens v. Homecomings Financial

278 Fed.Appx. 607, 2008 WL 2121008 (C.A.6 (Mich.))

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