Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Restivo v. Bank of America NA

United States District Court, M.D. Georgia, Athens Division

March 10, 2019

TINA RESTIVO, Plaintiff,
v.
BANK OF AMERICA NA, a/k/a BANK OF AMERICA CORPORATION, Defendant.

          ORDER ON DEFENDANT'S MOTION TO DISMISS

          C. ASHLEY ROYAL, SENIOR JUDGE UNITED STATES DISTRICT COURT

         On May 22, 201');">18, pro se Plaintiff Tina Restivo filed suit against Defendant Bank of America, NA (“BANA”) allegedly also known as Bank of America Corporation (“BAC”), [1');">1" name="FN1');">1" id= "FN1');">1">1');">1]seeking to have a state court judgment overturned and asserting a claim under the Truth in Lending Act (“TILA”), 1');">15 U.S.C. § 1');">1601');">1, et seq. Currently before the Court is BANA's Motion to Dismiss Plaintiff's Complaint. Having considered the Motion, pleadings, and applicable law, Defendant's Motion to Dismiss [Doc. 5] is GRANTED.

         BACKGROUND

         This case arises out of BANA's 201');">12 foreclosure of Plaintiff's property. Plaintiff is a well-known litigant in this court. Indeed, this is the fourth case between BANA and Plaintiff to come before the Court.

         In 2009, Plaintiff obtained a loan secured by a security deed on her property at 1');">1020 Bradley Gin Lane, Monroe, Georgia 30656. Plaintiff defaulted on her loan, and BANA became the owner of the property in a non-judicial foreclosure sale in 201');">12. When Plaintiff failed to relinquish possession, BANA filed a dispossessory action against Plaintiff in the Magistrate Court of Walton County. Plaintiff removed that action to this Court, Bank of America, N.A. v. Restivo, 3:1');">12-CV-1');">140(CAR), but the Court remanded the case for lack of jurisdiction on March 5, 201');">13. On March 1');">18, 201');">13, the Magistrate Court of Walton County issued BANA a Writ of Possession.

         On October 1');">18, 201');">13, Plaintiff filed a new cause of action against “Bank of America Corporation also known as Bank of America, NA, ”[2" name="FN2" id="FN2">2] in the Superior Court of Walton County attacking the dispossessory action and alleging wrongful foreclosure.[3] All properly named defendants removed that case to this Court, Restivo v. Bank of America Corporation, 3:1');">13-CV-1');">128(CAR), based upon diversity jurisdiction. The defendants subsequently filed a motion to dismiss, and on June 9, 201');">14, the Court dismissed the case for failure to state a claim upon which relief may be granted. The Eleventh Circuit affirmed the dismissal.

         On June 1');">15, 201');">15, Plaintiff filed a third action against BANA in the Superior Court of Walton County alleging the dispossessory action was void. BANA again removed the case to this Court, Restivo v. Bank of America, N.A., 3:1');">15-CV-72(CAR), but the Court remanded back it to state court for lack of subject matter jurisdiction under the Rooker-Feldman doctrine. On December 26, 201');">15, the Superior Court of Walton County issued a Final Judgment and Writ of Possession dismissing Plaintiff's claims. Plaintiff has now filed this action claiming that BANA's alleged fraudulent TILA violations void the state court's judgment, and Defendant has filed this Motion to Dismiss Plaintiff's Complaint for multiple reasons.[4]

         LEGAL STANDARD

         On a motion to dismiss, the Court must construe the complaint in the light most favorable to the plaintiff and accept as true all well-pled facts in a plaintiff's complaint.[5]To avoid dismissal pursuant to Federal Rule of Civil Procedure 1');">12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'”[6] A claim is plausible where the plaintiff alleges factual content that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[7] The plausibility standard requires that a plaintiff allege sufficient facts “to raise a reasonable expectation that discovery will reveal evidence” that supports a plaintiff's claims.[8] Furthermore, “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”[9]

         DISCUSSION

         Although Plaintiff's Complaint is less than clear, it essentially raises two claims: (1');">1) Defendant violated TILA at the consummation of Plaintiff's loan; and (2) because of Defendant's fraudulent TILA violations, this Court must overturn the Superior Court of Walton County's Final Judgment and Writ of Possession pursuant Federal Rule of Civil Procedure 60. Both of Plaintiff's claims are barred and must be dismissed.

         I. Relief from State Court Judgment Pursuant to Rule 60(b)

         This is Plaintiff's fourth case against BANA arising out of the 201');">12 foreclosure of her property nearly seven years ago. Here, Plaintiff seeks to have this Court invalidate the Superior Court of Walton County's Final Judgment and Writ of Possession due to fraud. Regardless of the merits (or lack thereof) of Plaintiff's allegations, this Court lacks jurisdiction to grant Plaintiff's request to overturn the state court's judgment.[1');">10" name= "FN1');">10" id="FN1');">10">1');">10]

         The Rooker-Feldman doctrine “bars a state court loser from later enlisting a federal district court to reverse [her] state court loss.”[1');">11');">1" name="FN1');">11');">1" id="FN1');">11');">1">1');">11');">1] Rooker-Feldman applies when “(1');">1) the plaintiff was the loser in state court, (2) the plaintiff is complaining of an injury caused by the state court's judgment, (3) the state court's judgment was ‘rendered before the district court proceedings commenced,' and (4) the plaintiff is ‘inviting district court review and rejection' of the state court's judgment.”[1');">12" name= "FN1');">12" id="FN1');">12">1');">12] Finally, the doctrine only applies to claims that are “inextricably intertwined” with the state court judgment. “A claim is ‘inextricably intertwined' with the state court judgment ‘if it would effectively nullify the state court judgment, or it succeeds only to the extent that the state court wrongly decided the issues.'”[1');">13" name="FN1');">13" id= "FN1');">13">1');">13]

         The elements of Rooker-Feldman are clearly satisfied here. As evidenced by the Walton County Superior Court's Final Judgment and Writ of Possession which Plaintiff attached to her Complaint, Plaintiff lost in state court. The Superior Court entered its Final Judgment on December 1');">16, 201');">15, awarding BANA possession of Plaintiff's former property. In claiming the Judgment is void due to fraud, Plaintiff is clearly asking the Court to review and reject the Final Judgment. In her Complaint, Plaintiff blatantly requests that this Court nullify the Superior Court's Final Judgment. Thus, the Court lacks jurisdiction to review the Superior Court of Walton County's Final Judgment, and Plaintiff's claim for relief from judgment under Rule 60 is DISMISSED without prejudice.[1');">14" name= "FN1');">14" id="FN1');">14">1');">14]

         II. TILA Violations

         Plaintiff's TILA claims are barred both by res judicata and TILA's statute of limitations. Plaintiff alleges that at the consummation of her loan on September 3, 2009, “the actual true lender funding the mortgage loan contract” was “fraudulently concealed, ” and this fraudulent concealment violated TILA.[1');">15" name="FN1');">15" id="FN1');">15">1');">15] Clearly aware that res judicata and TILA's statute of limitation pose problems for these claims, Plaintiff alleges that equitable tolling should be applied to “effectuate the congressional intent of TILA.”[1');">16" name="FN1');">16" id="FN1');">16">1');">16]Plaintiff's equitable tolling allegations, however, fail to save her claims.

         First, Plaintiff's TILA claims are barred by res judicata.[1');">17" name="FN1');">17" id= "FN1');">17">1');">17] “Under res judicata, also known as claim preclusion, a final judgment on the merits bars the parties to a prior action from re-litigating a cause of action that was or could have been raised in that action.”[1');">18" name="FN1');">18" id= "FN1');">18">1');">18]Res judicata applies if the following four elements are met: “(1');">1) the prior decision must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases must involve the same parties or their privies; and (4) both cases must involve the same causes of action.”[1');">19" name="FN1');">19" id= "FN1');">19">1');" ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.