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Moreland v. The Bank of New York Mellon

United States District Court, S.D. Georgia, Brunswick Division

July 14, 2015

THE BANK OF NEW YORK MELLON, f/k/a The Bank of NY, successor to JP Morgan Chase Bank, successor to Chase Manhattan Bank, successor to Chemical Bank, as Trustee for IMC Home Loan Equity Trustee 1998-1 by Select Portfolio Servicing Inc.; RICHARD B. MANER; and JPMORGAN CHASE BANK N.A., Defendants.


J. RANDAL HALL, District Judge.

Plaintiff David L. Moreland seeks to challenge Defendants' foreclosure proceedings against him with this federal action, asserting a variety of civil and criminal causes of action under state and federal law. The problem is that he has brought this same challenge once before in state court, and lost. His claims are barred by res judicata, and Defendants Bank of New York Mellon and Select Portfolio Servicing, Inc.'s Motion to Dismiss, (Doc. no. 23), is GRANTED. These Defendants' earlier Motion to Dismiss (Doc. no. 18) is DENIED AS MOOT. Additionally, it is unclear - even after Plaintiff amended his Complaint - why Defendants JPMorgan Chase Bank and Maner are even named as Defendants in this case. Chase's Motion to Dismiss for failure to state a claim (Doc. no. 17) is GRANTED, and any intended claims against Defendant Maner are DISMISSED WITHOUT PREJUDICE.


The following facts are taken from Plaintiff's pro se Complaint. (Doc. no. 1, "Moreland II Compl.") They are supplemented by documents Plaintiff references in his Complaint which are central to that Complaint.[1]

Plaintiff purchased the subject Property on October 28, 1997, for $48, 775. (Moreland II Compl. ¶ 13; Doc. no. 18-2.) Plaintiff says the mortgage was first held by Residential Mortgage, but then was sold and resold several times, ultimately ending up in the hands of Defendant Select Portfolio Servicing, Inc. ("SPS"). (Moreland II Compl. ¶ 13; Doc. no. 18-4 ("Assignment").) The Assignment states that SPS is acting as "Attorney-in-Fact" for Defendant Bank of New York Mellon ("Trustee") and has the "authority to exercise the rights of a Loan Servicer." (Assignment ¶ 5.)

"The Plaintiff paid his mortgage payments directly to each of these corporation[s] when each one owned the promissory note. Then Plaintiff had to file bankruptcy three times, because Select Portfolio Servicing, Inc. made it difficult for the Plaintiff with frequently inaccurate information in the system." (Moreland II Compl. ¶ 13.)


On October 21, 2010, when foreclosure proceedings had been commenced against Plaintiff, he filed a pro se "Complaint to Set Aside Wrong Fraudulent Foreclosure and Petition for Interlocutory Injunction" against SPS in the Superior Court for Glynn County, Georgia. (Doc. no. 18-8 ("Moreland I Compl., " David Leon Moreland v. Select Portfolio Servicing, Inc., No. CE XX-XXXXX-XXX ("Moreland I")).)[2] In Moreland I, Plaintiff alleged 13 separate causes of action: (1) misrepresentation under Georgia Code section 33-15-122; (2) irregularities in sale; (3) fraud; (4) Georgia Racketeer Influenced and Corrupt Organizations Act ("RICO") violations; (5) trespass; (6) conversion; (7) wrongful foreclosure; (8) intentional infliction of emotional distress; (9) negligent infliction of emotional distress; (10) libel; (11) Fair Credit Reporting Act ("FCRA") violations; (12) punitive damages; and, by an amended complaint, (13) Real Estate Settlement Procedures Act ("RESPA") violations. (Id. (Moreland I Compl.); id. at 92 ("Moreland I Am. Compl.").) The Superior Court dismissed all of Plaintiff's claims with prejudice. (Doc. no. 18-10 ("Moreland I Order").) Plaintiff filed a Motion to Set Aside Judgment in the trial court on August 6, 2013, which was denied on November 25, 2013. (Doc. no. 18-11.) Plaintiff then filed a direct appeal to the Georgia Supreme Court, which transferred the appeal to the Georgia Court of Appeals. (Doc. no. 18-12.) The Georgia Court of Appeals dismissed the matter as untimely on February 3, 2014. (Doc. no. 18-13.)

After Plaintiff's appeal was dismissed, he was sent formal notice of a scheduled foreclosure sale of his property. (Doc. no. 18-14 ("Notice").) Plaintiff initiated the instant lawsuit shortly thereafter. (See Moreland II Compl.) The Complaint lists eight counts, including: (1) RESPA violations; (2) misrepresentation; (3) fraud; (4) conversion; (5) irregularities; (6) libel; (7) RICO violations; and (8) punitive damages. (Id. ¶¶ 14-21.) Plaintiff also filed a Motion for Preliminary Injunction to bar the foreclosure (Doc. no. 5), which was denied as moot after Defendants Trustee and SPS filed a notice informing the Court that the foreclosure sale was cancelled "out of an abundance of caution" (Doc. nos. 11, 12).

Defendant JPMorgan Chase Bank ("Chase") filed its Motion to Dismiss on September 4, 2014. (Doc. no. 17.) SPS and Trustee filed their first Motion to Dismiss on September 12, 2014. (Doc. no. 18.) The Court ordered Plaintiff to respond to or oppose these motions on September 17, 2014. (Doc. no. 21.) Plaintiff responded by moving to amend his Complaint "to add criminal and civil law, " bringing the total number of claims to 19: (9) "criminal and civil RICO 1961-1964"; (10) conspiracy; (11) trespass; (12) "criminal and civil asset forfeiture"; (13) money laundering; (14) tax fraud; (15) breach of implied covenant of good faith and fair dealing; (16) interference "and other laws"; (17) bankruptcy fraud; (18) fraudulent conveyance; and (19) fraudulent solicitation "and so forth." (Doc. no. 22 ("Moreland II Am. Compl.").) The Magistrate Judge granted Plaintiff's Motion to Amend his Complaint.[3] (See Doc. no. 28.)

Defendants Trustee and SPS argue that Plaintiff's Complaint is barred by res judicata and that his allegations fail to meet the pleading standards of Federal Rules 8, 9, and 12(b)(6). (Doc. no. 23-1, p. 8.) Defendant Chase moves to dismiss pursuant to 12(b)(6) because Plaintiff never identifies Chase in the Complaint other than to name it as a predecessor in interest to the other Defendants. (Doc. no. 17-1, p. 2.)


A. Plaintiff's Complaint Fails to State a Claim Against Defendants JPMorgan Chase Bank and Maner.

Defendant Chase has filed a Motion to Dismiss arguing that Plaintiff listed it as a Defendant but otherwise failed to make any allegations against it in his Complaint. (Doc. no. 17.) Defendant brings its motion ...

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