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Pearson v. The Commercial Bank of Ozark

United States District Court, M.D. Alabama, Southern Division

April 26, 2018

LORENZO PEARSON, Plaintiff,
v.
THE COMMERCIAL BANK OF OZARK, et al., Defendants.

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          TERRY F. MOORER, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff, who is proceeding pro se, filed this 42 U.S.C. § 1983 action on October 12, 2017. Pursuant to this Court's Order giving him an opportunity to amend (Doc. 8), Plaintiff filed an Amended Complaint. (Doc. 9). Plaintiff names as Defendants the Commercial Bank of Ozark and Commercial Bancshares of Ozark, Inc. (Doc. 9). The Court understands Plaintiff to allege that the Defendants violated his due process rights, the Truth in Lending Act (TILA) 15 U.S.C. § 1601 (1979) and the Fair Debt Collection Practices Act, (FDCPA) 15 U.S.C. § 1692 when they instituted foreclosure proceedings on his property located at 40 Bowden Street, Ariton, Alabama in state court in October, 2015. He claims that the state foreclosure proceedings were unlawful and should be “set[] aside” by this Court because the mortgage he gave on his property was void since he provided rescission notices to Defendants in June 2010. (Doc. 9 at p. 5).

         Specifically, in his Amended Complaint, Plaintiff alleges that Defendants have violated his Constitutional rights to due process because he was not appraised of the October 15, 2015 state court foreclosure hearing. (Doc. 9 at. pp. 5-6). He also alleges that the state court foreclosure proceedings instituted by Defendants violated TILA because in June 2010 he rescinded the terms of the mortgage which made the mortgage null and void. (Doc. 9 at pp. 1-5 and 7-8). Further, he alleges that the state foreclosure proceedings violated FDCPA because Defendants' subsequent sale of the property was unlawful since his June 2010 rescission notices nullified the mortgage. (Doc. 9 at pp. 8-11). Plaintiff also alleges state law claims for conversion and fraudulent misrepresentation arising from the alleged unlawful foreclosure proceedings. (Doc. 9 at pp. 9-13). The Amended Complaint seeks declaratory and injunctive relief and money damages. (Doc. 9 at pp. 5, 13).

         On February 6, 2018, this Court entered an Order granting Plaintiff's application to proceed in forma pauperis. (Doc. 7). In forma pauperis proceedings are governed by 28 U.S.C. § 1915 which requires this court to conduct a preliminary review of the complaint to ensure the action is not “frivolous or malicious, ” “fails to state a claim on which relief can be granted, ” or “seeks monetary relief against a defendant who is immune from such relief.” See 28 U.S.C. § 1915(e)(2)(B). Accordingly, the Court now conducts a review pursuant to 28 U.S.C. 1915.

         II. Discussion and Analysis

         Initially, the Court must address whether it has subject matter jurisdiction over Plaintiff's claims. See Mitchell v. Brown & Williamson Tobacco Corp. 294 F.3d 1309, 1314 (11th Cir. 2002) (The court has an “independent obligation” to determine whether it has jurisdiction.) (Citations omitted). As Plaintiff proceeds pro se, the court will liberally construe the allegations of his complaint. See Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). Plaintiff alleges a violation of his Fourteenth Amendment due process rights pursuant to 42 U.S.C. § 1983. Section 1983 provides a remedy when a person acting under color of law deprives a plaintiff of a right, privilege, or immunity secured by the Constitution, laws, or treaties of the United States. See 42 U.S.C. § 1983.[1] Plaintiff brings his due process claim pursuant to § 1983 and brings causes of actions under federal statutes TILA and FDCPA. Therefore, he arguably invokes the Court's federal question jurisdiction pursuant to 28 U.S.C. § 1331.[2]

         A. Prior Court Order Enjoining Plaintiff's Suits against the Commercial Bank of Ozark

         On June 10, 2015, in a case previously filed in this Court, the Court issued an Order finding that “Lorenzo Pearson . . . has abused process by repeatedly removing cases to federal court on the basis of arguments that are patently frivolous and violative of their Rule 11 certifications.”. Thus, the Court ordered that Pearson was “ENJOINED from filing . . . direct suits in this court against . . . the Commercial Bank of Ozark or its agents, servants, employees, officers, or directors, [without first] submit[ting] a petition for leave to file, along with a proposed . . . complaint and a copy of this Order, to this court for consideration.” (See The Commerical Bank of Ozark v. Lorenzo Pearson and Clarissa Pearson, 1:15-cv-73-WKW, Doc. 12). In filing the instant action, Plaintiff has failed to follow the directions of this Court. Accordingly, the Court concludes that this action could be dismissed solely on this basis pursuant to 28 U.S.C. § 1915. However, for the sake of thoroughness, the Court will now address other bases for dismissal pursuant to 28 U.S.C. § 1915.

         B. State Action/Private Actor

         The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving a person of “life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV (emphasis added). Additionally, claims brought under 42 U.S.C. § 1983 for violations of Fourteenth Amendment rights, must be asserted against state actors. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). (Emphasis added). Plaintiff brings suit against the defendants Commercial Bank of Ozark and Commercial Bancshares of Ozark, Inc., private entities, alleging violations of his due process rights. The law is clear that the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful. Focus on the Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1263, 1277 (11th Cir. 2003); see also Martinez v. Ashtin Leasing, Inc., 417 Fed.Appx. 883, 884-85 (11th Cir. 2011) (unpublished) (quoting Pinellas). Accordingly, there is no viable cause of action under 42 U.S.C. § 1983 against the defendants, Commercial Bank of Ozark and Commercial Bancshares of Ozark, Inc. who are private entities, for their alleged role in the foreclosure proceedings instituted on Plaintiff's property. Thus, Plaintiff's due process claims against them warrants dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B) because he fails to state a claim against Defendants upon which relief maybe granted.

         C. Declaratory and Injunctive Relief

         Plaintiff claims that in June of 2010 he provided rescission notices to Defendants pursuant to TILA which voided the mortgage on the property upon which Defendants foreclosed. (Doc. 9 at pp. 1-5, 7-8). Further, he argues that the subsequent sale of his property was unlawful under FDCPA because the mortgage was void. (Doc. 9 at pp. 8-11). Thus, he argues because there was no mortgage upon which to foreclose that this Court should enter a “judgment setting aside Dale County Alabama Circuit Court Judgment from November 15th, 2015.” (Doc. 9 at pp. 5, 7-8). This is precisely the kind of relief which the Rooker-Feldman doctrine requires this Court to abstain from awarding. Indeed, the United States Supreme Court held that 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 district court review and rejection of those judgments.” Exxon Mobil Corp., v. Saudi Basic Industries Corp. 544 U.S. 280, 284 (2005). Further, suits requesting a federal court to declare a state court judgment “null and void” are properly dismissed under the Rooker-Feldman doctrine “for want of subject-matter jurisdiction.” Id. at 283-84. (Citation omitted). Accordingly, the Court concludes that this claim is due to be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B).

         D. Money Damages ...


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