United States District Court, M.D. Florida, Orlando Division
JAMES A. SANDALER, Plaintiff,
WELLS FARGO BANK, N.A., Defendant.
E. MENDOZA, UNITED STATES DISTRICT JUDGE
CAUSE is before the Court on Defendant's Motion to
Dismiss (“Motion, ” Doc. 50), to which Plaintiff
filed a Response (Doc. 55). For the reasons stated below,
Defendant's Motion will be granted in part and denied in
January 23, 2006, Plaintiff obtained a loan, which was
secured by a mortgage on Plaintiffs home. (Second Am. Compl.,
Doc. 41, ¶ 11). Plaintiffs loan was eventually bundled
with other loans and deposited into a trust, and U.S. Bank,
National Association (“U.S. Bank”) held legal
title to the bundled loans. (Id. ¶ 13). Wells
Fargo was the subservicer for Plaintiffs loan. (Id.
¶ 12). In 2011, Plaintiff defaulted on his loan
payments, (see Id. ¶¶ 17, 19), and on
January 13, 2012, U.S. Bank filed a foreclosure action
against Plaintiff in the Circuit Court of the Eighteenth
Judicial Circuit in and for Brevard County. (Id.
¶ 21). While the foreclosure action was pending, on
April 17, 2013, Plaintiff filed for Chapter 7 Bankruptcy and
obtained a discharge on August 1, 2013. (Id. ¶
29 & n.13).
February 24, 2015, Plaintiff, proceeding pro se,
initiated the instant action against Defendant and Ocwen Loan
Servicing, LLC (“Ocwen”) by filing a Complaint in
the Circuit Court of the Eighteenth Judicial Circuit in and
for Brevard County, alleging wrongful foreclosure, unjust
enrichment, and breach of contract claims, arising out of
Defendant's alleged failure to convert a complete trial
loan modification agreement to a permanent loan modification
agreement. (Id. ¶ 54; Compl., Doc. 1-3, at
3-5). Prior to filing his Complaint-between September 7,
2011, and February 14, 2014-Plaintiff submitted five
different loan modification applications to Defendant. (Doc.
41 ¶¶ 18, 20, 24-25, 45). Plaintiff submitted his
sixth and final loan modification application on September
14, 2015. (Id. ¶ 57). However, none of
Plaintiff's applications resulted in a modification to
Plaintiff's loan. (See Id. ¶¶ 18, 20,
30-41, 45, 58).
1, 2015, U.S. Bank filed an Amended Complaint in the
foreclosure action, (Am. Verified Compl., Doc. 41-2, at
67-71; Brevard County Clerk of Courts Docket, Doc. 50-1, at
6), to which Plaintiff filed an Answer (Doc. 50-1 at 6). On
or about April 18, 2016, a final judgment of foreclosure was
entered in favor of U.S. Bank in the state foreclosure
action. (Doc. 41 ¶ 59; Final J. of Foreclosure, Doc.
41-3, at 71-74). U.S. Bank was also the prevailing bidder at
the August 17, 2016 foreclosure sale and obtained a
certificate of title to Plaintiff's property on September
6, 2016. (Id. ¶ 60; Doc. 50-1, at 9). Plaintiff
did not object to the foreclosure sale or appeal the state
September 27, 2016, Plaintiff-now represented by
counsel-filed an Amended Complaint in the instant action,
bringing federal and state-law claims related to the
servicing of his mortgage. (See generally Am.
Compl., Doc. 3). Defendant subsequently filed a Notice of
Removal (Doc. 1) pursuant to 28 U.S.C. § 1331 and then
moved to dismiss the Amended Complaint, (see Mot. to
Dismiss, Doc. 24). While the motion to dismiss was pending,
the parties filed a Joint Stipulation of Dismissal with
Prejudice as to Ocwen (Doc. 24), and Ocwen was terminated as
a party, (Jan. 23, 2017 Order, Doc. 37, at 1). In response to
Defendant's motion to dismiss, Plaintiff sought and was
granted leave to file the Second Amended Complaint.
(Pl.'s Unopposed Mot. for Leave to File Second Amended
Complaint, Doc. 39, at 1; Feb. 10, 2017 Order, Doc. 40).
After Plaintiff filed the Second Amended Complaint
(“SAC”), Defendant filed the Motion to Dismiss
currently before the Court, asking the Court to dismiss all
five counts asserted in the SAC.
the Motion was pending, the parties filed a Joint Stipulation
for Dismissal of Counts 2, 3, and 4 (“Joint
Stipulation, ” Doc. 69). The parties do not cite any
authority authorizing the dismissal of these claims. The
Court presumes the parties were attempting to dismiss the
claims under Federal Rule of Civil Procedure 41(a)(1)(A)(ii).
That Rule, however, only permits parties to voluntarily
dismiss “an action, ” rather than individual
claims. See Fed. R. Civ. P. 41(a)(1)(A)(ii).
Nevertheless, the Court will construe the Joint Stipulation
as a notice that Plaintiff does not oppose Defendant's
Motion to the extent it requests dismissal of Counts II, III,
and IV. Counts II, III, and IV will therefore be dismissed.
I and V remain. Count I alleges violations of the Real Estate
Settlement Procedures Act (“RESPA”), 12 U.S.C.
§ 2601 et seq., and its implementing
regulations, also known as “Regulation X, ” 12
C.F.R. § 1024.1 et seq., in relation to
Plaintiff's fifth and sixth loan modification
applications. Count V asserts a claim for negligent
mortgage servicing based on Defendant's alleged
violations of the National Mortgage Settlement as well as a
consent judgment entered in another matter (the “Ocwen
Consent Judgment” or “OCJ”).
Motion to Dismiss Legal Standard
pleading that states a claim for relief must contain . . . a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party
may move to dismiss a complaint for “failure to state a
claim upon which relief can be granted.” In determining
whether to dismiss under Rule 12(b)(6), a court accepts the
factual allegations in the complaint as true and construes
them in a light most favorable to the non-moving party.
See United Techs. Corp. v. Mazer, 556 F.3d 1260,
1269 (11th Cir. 2009). Nonetheless, “the tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions, ” and
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Furthermore, “[t]o survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible
on its face.'” Id. (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
argues that the SAC should be dismissed because the
Rooker-Feldman doctrine bars this Court from having
jurisdiction over Plaintiff's claims. Alternatively,
Defendant argues that Plaintiff's claims are barred by
Florida's compulsory counterclaim rule, that Plaintiff
should be judicially estopped from brining his claims, and
that Plaintiff has failed to state a claim. Defendant's
arguments will be addressed in turn.
on subject matter jurisdiction under [Rule] 12(b)(1) come in
two forms: ‘facial attacks' and ‘factual
attacks.'” Garcia v. Copenhaver, Bell &
Assocs., M.D.'s, P.A., 104 F.3d 1256, 1260-61 (11th
Cir. 1997) (quoting Lawrence v. Dunbar, 919 F.2d
1525, 1528-29 (11th Cir. 1990)). The present case involves a
factual attack. In other words, Defendant “challenge[s]
the existence of subject matter jurisdiction in fact,
irrespective of the pleadings.” Lawrence, 919
F.2d at 1529 (quotation omitted). On a factual attack, courts
may consider “matters outside the pleadings, such as
testimony and affidavits, ” id. at 1529
(quotation omitted), weigh the evidence, and make findings of
fact, as long as “the facts necessary to sustain
jurisdiction do not implicate the merits of [the]
plaintiff's cause of action, ” Garcia, 104
F.3d at 1261. In such a case, “no presumptive
truthfulness attaches to [the] plaintiff's allegations,
and the existence of disputed material facts will not
preclude the trial court from evaluating for itself the
merits of jurisdictional claims.” Lawrence,
919 F.2d at 1529 (quotation omitted).
to the Rooker-Feldman doctrine, “a United
States District Court has no authority to review final
judgments of a state court in judicial proceedings.”
D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482
(1983); see also Rooker v. Fid. Tr. Co., 263 U.S.
413, 415-16 (1923). In other words, district courts lack
jurisdiction to hear “cases brought by state-court
losers complaining of injuries caused by state-court
judgments rendered before the district court proceedings
commenced.” Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005). “The doctrine
applies both to federal claims raised in the state court and
to those ‘inextricably intertwined' with the state
court's judgment.” Casale v. Tillman, 558
F.3d 1258, 1260 (11th Cir. 2009) (quoting Feldman,
460 U.S. at 482 n.16). “A claim is inextricably
intertwined if it would effectively nullify the state court
judgment, or it succeeds only to the extent that the state
court wrongly decided the issues.” Id.
Rooker-Feldman doctrine applies only to federal
actions “filed after the state proceedings have
ended.” Nicholson v. Shafe, 558 F.3d 1266,
1275 (11th Cir. 2009). For the purposes of applying the
Rooker-Feldman doctrine, state court proceedings
(1) when the highest state court in which review is available
has affirmed the judgment below and nothing is left to be
resolved, (2) if the state action has reached a point where
neither party seeks further action, and (3) if the state
court proceedings have finally resolved all the federal
questions in the litigation, but state law or purely factual
questions (whether great or small) remain to be litigated.
Lozman v. City of Riviera Beach, 713 F.3d 1066, 1072
(11th Cir. 2013) (quoting Nicholson, 558 F.3d at
undisputed that Plaintiff filed the instant action on
February 24, 2015. (See Doc. 50 at 7 (noting that
Plaintiff filed his initial Complaint on February 24, 2015);
Doc. 55 at 8 (noting that commencement of this federal action
related back to February 24, 2015)). Defendant argues that
the third test applies in this case, and thus, for purposes
of the Rooker-Feldman doctrine, the state
foreclosure proceeding had ended when Plaintiff filed the
instant action. More specifically, Defendant asserts that
when Plaintiff initiated this action, the only issues
remaining to be litigated in the foreclosure action pertained
to the mortgage foreclosure under state law.
Court disagrees that the third test applies here. The
foreclosure action solely involved state law. Thus, the state
court could not have “finally resolved all the federal
questions in the litigation”; there were never any
federal questions for the state court to litigate. However,
even if the third test did apply here, there is a procedural
issue that prevents the application of
Supreme Court has cautioned courts on the narrow application
of Rooker-Feldman. “In Exxon Mobil,
the Court reminded lower courts that Rooker-Feldman
only applies to cases brought by those ‘complaining of
injuries caused by state-court judgments rendered
before the district court proceedings commenced . .
. .” Velazquez v. S. Fla. Fed. Credit Union,
546 F. App'x 854, 858 (11th Cir. 2013) (emphasis added)
(quoting Exxon Mobil, 544 U.S. at 284). While the
instant action was initiated on February 24, 2015, the state
court did not enter a final judgment in the foreclosure
action until April 22, 2016. Moreover, the fact that SAC was
not filed until February 10, 2017, after the state court
judgment was rendered, is of no import. Under the Federal
Rules of Civil Procedure, Plaintiff's SAC relates back to
the date of his original pleading. See Fed. R. Civ.
P. 15(c)(1)(B). Accordingly, the state court judgment had not
been rendered when this action commenced. It therefore
follows that when Plaintiff filed this action, he was not a
state-court loser complaining of injuries caused by a
state-court judgment. Thus, Rooker-Feldman cannot
apply here. See Exxon Mobil, 544 U.S. at 293-94
(holding that Rooker-Feldman did not apply where the
party initiating the subsequent federal action had “not
repaired to federal court to undo the [state court] judgment
in its favor”); Novick v. Wells Fargo Bank,
N.A., No. 16-cv-22982-GAYLES, 2017 WL 2464707, at *2
(S.D. Fla. June 7, 2017) (“The doctrine does not apply
in this instance as Plaintiff filed his federal action before
there was a final judgment in the Foreclosure Action.”
(citing Green v. Jefferson Cty. Comm'n, 563 F.3d
1243, 1249-50 (11th Cir. 2009))); cf. Figueroa v.
Merscorp, Inc., 766 F.Supp.2d 1305, 1321 (S.D. Fla.
2011) (“Procedurally, Rooker- Feldman may
apply here as this federal case was not filed until after the
state-court proceedings concluded.”),
aff'd, 477 F. App'x 558 (11th Cir. 2012). To
the extent Defendant's Motion requests that this case be
dismissed for lack of subject matter jurisdiction under
Rooker-Feldman, Defendant's Motion will be
argues that Plaintiff's claims are due to be dismissed
because they are compulsory counterclaims that Plaintiff was
required to assert in the state foreclosure action. Plaintiff
responds that his claims were not compulsory because they had