UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MAURICE JENKINS,

Plaintiff, CIVIL ACTION NO. 09-12451

vs.

 DISTRICT JUDGE NANCY G. EDMUNDS

WELLS FARGO BANK, N.A., MAGISTRATE JUDGE MONA K. MAJZOUB

Defendant.

__________________________/

REPORT AND RECOMMENDATION

I. RECOMMENDATION: Defendant’s Motion to Dismiss or in the Alternative for Summary

Judgment (docket no. 9) should be GRANTED and Plaintiff’s Complaint should be dismissed with

prejudice.

II. REPORT:

Plaintiff filed a pro se civil complaint alleging violations of the Racketeer Influenced and

Corrupt Organizations Act (“RICO”), the Fair Debt Collection Practices Act (“FDCPA”), and fraud

in connection with what Plaintiff argues was an unlawful mortgage foreclosure. (Docket no. 1).

Defendant filed this Motion to Dismiss or in the Alternative for Summary Judgment on August 4,

2009. (Docket no. 9). Plaintiff responded on August 28, 2009. (Docket no. 16). All pretrial

matters have been referred to the undersigned for decision. (Docket no. 6). The Court dispenses

with oral argument pursuant to E.D. Mich. LR 7.1(e). The matter is now ready for ruling pursuant

to 28 U.S.C. § 636(b)(1)(B).

A. Facts and Procedural History

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On May 23, 2001 Plaintiff executed a note and mortgage in favor of Delta Funding

Corporation (“Delta”) for property located at 20785 Winchester, Southfield, Michigan. (Docket no.

9). The mortgage was recorded on October 22, 2001. (Docket no. 9, ex. 1). On July 14, 2003 Delta

assigned all of its “rights, title, and interest” in the mortgage to Wells Fargo Bank Minnesota, N.A.

(the “First Mortgage Assignment”). (Docket no. 9, ex. 2). The assignment was recorded the

following week. (Docket no. 9, ex. 2). On or around February 20, 2004, Wells Fargo Bank

Minnesota, N.A. merged into and began operating as Wells Fargo Bank, N.A. (“Defendant”).

(Docket no. 1). On January 2, 2007 Delta executed a second assignment of a “100% undivided

interest” in the mortgage to Wells Fargo Bank Minnesota, N.A. (the “Second Mortgage

Assignment”). (Docket no. 1). The Second Mortgage Assignment was recorded on February 15,

2007. (Docket no. 1).

At some point Plaintiff defaulted on the terms of his mortgage loan and Defendant initiated

foreclosure proceedings. From December 13, 2005 to May 22, 2007, Defendant scheduled and

subsequently cancelled three foreclosure sales of the Southfield property. (Docket no. 9). A fourth

foreclosure sale, scheduled for September 18, 2007, was cancelled after Plaintiff filed his sixth

Chapter 13 bankruptcy petition. (Docket no. 9). The bankruptcy court dismissed the Plaintiff’s

sixth petition on October 22, 2007. (Docket no. 9). After the dismissal the Defendant published a

notice of foreclosure of the Southfield property. (Docket no. 9, ex. 4). The notice stated that a

foreclosure sale would be held on December 11, 2007 on a $319,034.76 mortgage default. (Docket

no. 9, ex. 4). Shortly after the first notice of sale was published, the bankruptcy court modified the

October 22, 2007 order dismissing Plaintiff’s bankruptcy case and scheduled a hearing on a motion

filed in the case.

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Three more notices of foreclosure were published on November 16, 23 and 30, 2007. 

(Docket no. 9, ex. 4). On December 10, 2007 Plaintiff filed another bankruptcy case, this time under

Chapter 7 of the Bankruptcy Code. Defendant contends it did not receive prior notice of the Chapter

7 bankruptcy filing. (Docket no. 9). Notwithstanding the fact that Plaintiff was involved in two

bankruptcy cases, on December 11, 2007 Plaintiff’s home was sold at public auction to the

Defendant for $323,361.98. A sheriff’s deed was issued to the Defendant. (Docket no. 9, ex. 4).

Several days after the sale, Ocwen Loan Servicing, LLC, the servicing agent for the Defendant, filed

motions in Plaintiff’s Chapter 13 and Chapter 7 bankruptcy cases to void and annul the automatic

stay nunc pro tunc and confirm the foreclosure sale on the Southfield property. (Docket no. 9). The

bankruptcy court granted the unopposed motions on January 22 and January 23, 2008, holding that

the foreclosure sale of the Southfield property and the sheriff’s deed of sale were a valid deed and

sale. (Docket no. 9, ex. 5, 6). Plaintiff did not file a notice of appeal of the bankruptcy court orders.1

The last day to redeem the property was June 11, 2008. (Docket no. 9). On or around June

9, 2008 Plaintiff filed an action in the Oakland County Circuit Court against Defendant, Ocwen

Loan Servicing, LLC, and Delta challenging the validity of the foreclosure action. (Docket no. 9,

ex. 7). Plaintiff’s state court complaint alleges that the December 11, 2007 sheriff’s sale was

improper and illegal. (Docket no. 9, ex. 7). Plaintiff argues in the complaint that the First Mortgage

Assignment was invalid and fraudulent and created a cloud on his title, making it impossible for him

to refinance his mortgage loan. He further argues that Delta issued the Second Mortgage

Assignment in an attempt to correct the deficiencies in the First Mortgage Assignment. (Docket no.

1

The Court takes judicial notice of the bankruptcy court docket sheets in case number 07-

58371 and 07-65081.

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9, ex. 7). The state court complaint seeks an order vacating the foreclosure sale and awarding

Plaintiff damages to compensate him for money paid to Defendant during the cloud of title issues. 

(Docket no. 9, ex. 7).

Defendant filed a motion for summary disposition in the Oakland County Circuit Court case,

arguing in part that the Plaintiff failed to plead fraud with particularity and asserting that the

foreclosure was valid. (Docket no. 9, ex. 8). The state court granted the Defendant’s motion for

summary disposition on May 6, 2009. (Docket no. 9, ex. 9). Plaintiff filed an appeal of the Circuit

Court order. (Docket no. 9, ex. 10). On May 22, 2009 the 46th District Court for the City of

Southfield entered a judgment of possession in favor of Defendant. (Docket no. 9, ex. 12). Plaintiff

filed an appeal from the judgment of possession on June 26, 2009. (Docket no. 9, ex. 13). The

appeals of the Oakland County Circuit Court order and the 46th District Court judgment are

pending. (Docket no. 9 at 5).

Plaintiff filed the instant Complaint in this Court on June 22, 2009. (Docket no. 1). In the

instant Motion, Defendant moves the Court to dismiss the Complaint pursuant to Federal Rule of

Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6). Defendant argues that the Court lacks subject

matter jurisdiction under the Rooker-Feldman doctrine, the Complaint was not properly served, the

Complaint fails to state a claim under the FDCPA and RICO, and the claims must be dismissed

under the doctrine of res judicata.

B. Standard

A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(1) challenges the

court’s subject matter jurisdiction by attacking the jurisdictional claim on its face, in which case all

factual allegations of the Plaintiff must be considered as true, or by attacking the factual basis for

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jurisdiction. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). If the factual basis for

jurisdiction is challenged, the court must weigh the evidence and the plaintiff bears the burden of

proving jurisdiction. Id. Federal Rule of Civil Procedure 12(b)(5) permits a party to raise the

defense of insufficiency of service of process in a motion to dismiss. The decision whether to

dismiss a complaint for improper service of process is within the sound discretion of the court.

Sherer v. Construcciones Aeronauticas, S.A., 987 F.2d 1246, 1247 (6th Cir. 1993).

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim upon which relief can be granted challenges the legal sufficiency of a complaint. When

determining a motion under Rule 12(b)(6), the court must construe the complaint in a light most

favorable to the plaintiff, accept all well-pled factual allegations as true, and determine whether the

plaintiff’s allegations present plausible claims. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-

56 (2007). To survive a Rule 12(b)(6) motion to dismiss “the complaint must contain either direct

or inferential allegations respecting all material elements to sustain a recovery under some viable

legal theory.” Bishop v. Lucent Tech., Inc., 520 F.3d 516, 519 (6th Cir. 2008) (citation and internal

quotation marks omitted). A complaint containing a statement of facts that merely creates a

suspicion of a legally cognizable claim can not survive a Rule 12(b)(6) motion. Id. The complaint's

“ ‘[f]actual allegations must be enough to raise a right to relief above the speculative level;’ they

must ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. at 555, 570 (2007)).

C. Analysis

1. The Bankruptcy Court Orders

Plaintiff contends that this Court has subject-matter jurisdiction over his Complaint because

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the foreclosure action originated in the Federal bankruptcy court. Plaintiff challenges the January

22 and 23, 2008 bankruptcy court orders voiding and annulling the automatic stay nunc pro tunc and

confirming the foreclosure sale for the Southfield property on the grounds that the orders were

fraudulently induced by the Defendant.

According to the Plaintiff, the Defendant claimed it owned the mortgage indebtedness by

way of a questionable noncorporate First Mortgage Assignment. (Docket no. 1). Plaintiff alleges

that the Defendant presented the defective Second Mortgage Assignment to the bankruptcy court

to show that it had the right to foreclose the mortgage interest. (Docket no. 16). He further alleges

that the Defendant and its attorneys misled the Federal Bankruptcy Court by convincing it that the

note and Second Mortgage Assignment were proper, causing the bankruptcy court to issue orders

validating the foreclosure sale. (Docket no. 16 at 4). Although Plaintiff states that the bankruptcy

court was deceived by false and misleading statements made to it by an officer of the court, Plaintiff

did not seek relief from the bankruptcy court orders pursuant to Federal Rule of Civil Procedure

60(b)(3) or Rule 60(d)(3).

Under the version of Federal Rule of Bankruptcy Procedure 8002(a) in effect at the time the

bankruptcy court orders were entered, Plaintiff was required to file a notice of appeal within ten days

of the January 22 and January 23, 2008 orders. The Plaintiff did not file a notice of appeal of the

orders. The bankruptcy court orders held that the December 11, 2007 foreclosure sale and sheriff

deed of sale resulting therefrom were valid. (Docket no. 9-6 and 9-7). This Court lacks jurisdiction

to review the bankruptcy court orders. Walker v. Bank of Cadiz (In re LBL Sports Center, Inc.), 684

F.2d 410, 412 (6th Cir. 1982) (the requirements of the Bankruptcy Rule 8002(a) are jurisdictional).

2. The State Court Orders

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Defendant argues that this Court lacks subject-matter jurisdiction over the Plaintiff’s

Complaint pursuant to the Rooker-Feldman Doctrine. Defendant asserts that the Plaintiff’s claims

amount to an appeal of the judgments issued by the Oakland County Circuit Court and the 46th

District Court for the City of Southfield.

The Rooker-Feldman doctrine raises a jurisdictional bar that prevents a federal district court

from ruling on an issue that is inextricably intertwined with a claim asserted in a state court

proceeding. DLX, Inc. v. Kentucky, 381 F.3d at 516-17. A “federal claim is inextricably intertwined

with the state-court judgment if the federal claim succeeds only to the extent that the state court

wrongly decided the issues before it.” Id. (citing Peterson Novelties, Inc. v. City of Berkley, 305

F.3d 386, 391 (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 proceedings as, in substance,

anything other than a prohibited appeal of the state-court judgment.” Pieper v. Am. Arbitration

Ass’n, Inc., 336 F.3d 458, 460 (6th Cir. 2003) (citation and internal quotation marks omitted).

Plaintiff’s federal Complaint asserts that the foreclosure action was improper and illegal

because Defendant based its right to foreclose the mortgage interest on invalid mortgage

assignments. Likewise, Plaintiff argued in his Oakland County Circuit Court complaint that the

December 11, 2007 foreclosure sale was improper and illegal and was based on invalid and

fraudulent mortgage assignments. (Docket no. 9, ex. 7). Both the Oakland County Circuit Court

complaint and the Complaint filed in this Court seek an order vacating the foreclosure sale. (Docket

no. 9, ex. 7).

Were this Court to rule in favor of the Plaintiff and vacate the foreclosure sale, it would lead

to the conclusion that the Oakland County Circuit Court judgment and the 46th district court

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judgment of possession were wrongly decided. Since Plaintiff’s federal claims depend on factual

issues inextricably intertwined with the state court determinations, this Court lacks jurisdiction over

the claims.

3. Independent Cause of Action

Plaintiff argues that this Court has subject-matter jurisdiction over his claims because the

instant action asserts an independent federal cause of action. (Docket no. 16 at 3). The Complaint

alleges that the Defendant violated the RICO statute (“RICO”), the FDCPA, and committed fraud

under penalty of perjury. (Docket no. 1). Defendant asserts that the Plaintiff failed to state a claim

upon which relief can be granted.

To establish a RICO violation the Plaintiff must show (1) two or more predicate offenses;

(2) the existence of an enterprise engaged in or affecting interstate or foreign commerce; (3) a nexus

between the pattern of racketeering activity and the enterprise; and (4) an injury to his business or

property by reason of the above. Frank v. D’Ambrosi, 4 F.3d 1378, 1385 (6th Cir. 1993). Plaintiff

contends that the Defendant violated the RICO statute by participating in a conspiracy to collect a

debt it was not entitled to collect because of the defective mortgage assignments. (Docket no. 1).

Plaintiff failed to allege facts which show that the Defendant engaged in or conspired to engage in

a pattern of racketeering activity, therefore the Complaint fails to sufficiently plead a RICO claim.

Plaintiff also fails to state a claim for violation of the FDCPA. The FDCPA bars debt

collectors from pursuing consumer debts in violation of the act. 15 U.S.C. § 1692, et seq. The

statute defines “debt collector” to include any person who uses instruments of interstate commerce

or mail in any business whose principal purpose is the collection of debts, or who regularly collects

the debts of another or collects its own debts using any name other than its own. 15 U.S.C.

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§ 1692a(6). Since a “debt collector” does not include any “officer or employee of a creditor while,

in the name of the creditor, collecting debts for such creditor,” creditors are not liable under the

FDCPA. 15 U.S.C. § 1692a(6).

Plaintiff does not argue before this Court that he was making mortgage payments to an entity

other than Defendant. More significantly, he does not plead facts sufficient to show that the

principal purpose of Defendant’s business was the collection of debts, or that the Defendant

regularly attempted to collect the debts of another or collect its own debts using the name of another. 

Based on the allegations before the Court, Plaintiff has failed to show that Defendant was a debt

collector for purposes of the FDCPA. See Romberger v. Wells Fargo Bank, N.A., No. 07-13210,

2008 WL 3838026, at *4 (E.D. Mich. August 14, 2008); King v. Ocwen, No. 07-11359, 2008 WL

111260, at *11 (E.D. Mich. January 8, 2008) (creditors are not included in the definition of “debt

collectors” under the FDCPA).

Similarly, Plaintiff’s civil Complaint fails to make out an actionable claim of fraud. To

establish fraud, the Plaintiff must show that (1) the Defendant made a material representation; (2)

the representation was false; (3) the Defendant knew the representation was false or was made

recklessly without knowledge of its truth; (4) the Defendant made the representation with the

intention that Plaintiff should act on it; (5) the Plaintiff acted in reliance on the representation; and

(6) the Plaintiff suffered injury as a result of his reliance. Little Caesar Enter., Inc. v. Oppco, Inc.,

219 F.3d 547, 551 (6th Cir. 2000). Plaintiff contends that the Defendant and its attorneys made

misrepresentations to the bankruptcy court which caused the bankruptcy court to rely on the

allegedly defective mortgage assignments. Plaintiff has failed to plead facts sufficient to show that

Defendant made a misrepresentation, with the intention that Plaintiff would rely on it, and that

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Plaintiff relied on the misrepresentation to his own detriment. Therefore, the Plaintiff has failed to

state a cognizable claim of fraud.

The Court finds that the instant Complaint was filed by Plaintiff in an attempt to delay the

eviction process and relitigate claims that are based on the same transaction and events as were

litigated in prior state court actions. The Court therefore agrees with the Defendant’s contention that

even if this Court did have jurisdiction over Plaintiff’s claims, which it does not, the claims would

be subject to dismissal under the doctrine of res judicata.

4. Service of Process

Defendant argues that the Plaintiff’s Complaint must be dismissed for insufficient service

of process pursuant to Federal Rule of Civil Procedure 12(b)(5). Defendant asserts that there is no

evidence that a Summons and copy of the Complaint were served upon a director, trustee, or person

in charge of an office or business of the Defendant as required under Federal Rule of Civil Procedure

4(h). (Docket no. 9 at 8).

Plaintiff is proceeding in forma pauperis. Federal Rule of Civil Procedure 4(c)(3) provides

that a Plaintiff proceeding in forma pauperis is entitled to have his Summons and Complaint served

by the United States Marshal. On June 23, 2009 the Court directed the United States Marshal to

serve a copy of the Complaint and Summons on Defendant. (Docket no. 5). The Marshal Service

acknowledged receipt of the Summons and Complaint on July 7, 2009. (Docket no. 7). The docket

does not show that the Defendant was properly served with process.

Federal Rule of Civil Procedure 4(m) states that the court must dismiss the action or order

that service be made within a specified time if service is not made within 120 days after the

complaint is filed. Because the Court lacks jurisdiction over the Plaintiff’s Complaint, the

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Complaint should be dismissed for failure to effectuate proper service in accordance with Rule 4(m)

and Rule12(b)(5).

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

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

but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C.

§ 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver

of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (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).

Filing of objections which raise some issues but fail to raise others with specificity, will not preserve

all the objections a party might 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 served upon this Magistrate Judge.

Any objections must be labeled as “Objection #1,” “Objection #2,” etc. Any objection must

recite precisely the provision of this Report and Recommendation to which it pertains. Not later

than ten days after service of an objection, the opposing party must file a concise response

proportionate to the objections in length and complexity. The response must specifically address

each issue raised in the objections, in the same order and labeled as “Response to Objection #1,”

“Response to Objection #2,” etc.

Dated: December 03, 2009 s/ Mona K. Majzoub 

MONA K. MAJZOUB

UNITED STATES MAGISTRATE JUDGE

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PROOF OF SERVICE

I hereby certify that a copy of this Report and Recommendation was served upon Maurice

Jenkins and Counsel of Record on this date.

Dated: December 03, 2009 s/ Lisa C. Bartlett 

Case Manager

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