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Frederick Banks v. Deborah Guffy

January 10, 2012

FREDERICK BANKS,
PLAINTIFF
v.
DEBORAH GUFFY, CITI FINANCIAL MORTGAGE CO. INC., LISA A. LEE, JOSEPH A. GOLDBECK, JR., GARY E. MCCAFFERTY, MICHAEL T. MCKEEVER, KRISTINA G. MORTHA, LESLIE E. PUIDA, THOMAS I. PULEO, JAY E. KRIVITZ, DAVID B. FEIN, ANN E. SWARTZ, ANDREW F. GORNALL, GOLDBECK MCCAFFERTY & MCKEEVER, COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PA, UNITED STATES ATTORNEY, DEPARTMENT OF JUSTICE, AND SECRETARY OF THE INTERIOR, DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court are four motions to dismiss the complaint filed by Frederick Banks ("Banks") in the above-captioned action. In his complaint, Banks asserts that defendants instituted foreclosure proceedings on his property located in Pittsburgh, Pennsylvania using flawed documents. He requests that the court compel (1) the state court to dismiss the foreclosure action, (2) the Secretary of the Interior to arrest and punish the defendants, and (3) the United States Attorney to present evidence of defendants' purported criminal wrongdoing to a grand jury. For the reasons that the follow, the motions to dismiss will be granted.

I. Background*fn1

Frederick Banks ("Banks") is a federal prisoner currently incarcerated at FCI - Forrest City in Arkansas. See Federal Bureau of Prisons, Inmate Locator, http://www.bop.gov/iloc2/LocateInmate.jsp (last visited Jan. 6, 2012). Banks claims that in October of 2010, National Public Radio reported that the Department of Justice was conducting an investigation into certain mortgage companies for filing mortgage foreclosure actions against consumers using flawed documents. (Doc. 1 ¶ 1). Banks asserts that during the same period, the defendants attempted to foreclose on his property using mortgage documents unrelated to him or his property. (Id. ¶ 2); see CitiFinancial Mortgage Co., Inc. v. Banks, Allegheny County, GD-06-001215.

A. The Real Property

The real property subject to the mortgage foreclosure action in the Court of Common Pleas of Allegheny County is located at 52 South 8th Street, Pittsburgh, Pennsylvania. (Doc. 26, Ex. A). The mortgage was made and given by Freddie Banks to Firstar Bank, N.A. on February 28, 2000. (See Doc. 26 ¶ 4; Doc. 26, Ex. B). The mortgage was later assigned to CitiFinancial Mortgage Co., Inc., and the mortgage foreclosure action was commenced on January 17, 2006. (Doc. 26, Ex. E).

Freddie Banks, the owner of the real property and the mortgagor, is Frederick Banks' mother. See United States ex rel. Vampire Nation v. CitiFinancial Mortgage Co., Inc., Civil Action No. 06-936, 2007 WL 2142404, at *2 (W.D. Pa. July 9, 2007). Freddie Banks passed away on December 18, 2006. (Doc. 26, Ex. C).*fn2 Nonetheless, in the mortgage foreclosure proceedings, Banks held himself out to be Freddie Banks, the owner and mortgagor of the real property. On January 19, 2011, CitiFinancial Mortgage Co., Inc. discontinued the mortgage foreclosure matter in the Court of Common Pleas of Allegheny County without prejudice. (Doc. 26, Ex. E, at 2).

B. Litigation in the Western District of Pennsylvania

On July 14, 2006, Banks filed an action in the Western District of Pennsylvania against CitiFinancial Mortgage Co., Inc., Goldbeck McCafferty & Mackeever, Lisa A. Lee, Cherly A. Dilchus, Beth Gradel, and Michael Mackeever. See United States ex rel. Vampire Nation v. CitiFinancial Mortgage Co., Inc., Civil Action No. 06-936, 2007 WL 2142404 (W.D. Pa. July 9, 2007). In that action, Banks alleged that defendants violated his rights by foreclosing on a home owned by him. Id. Asserting in that matter that he is African American, and defendants were trying to foreclose on his "poor black family," Banks claimed race discrimination. Id. After Banks represented to the court that he was not and had never been the owner of the home located at 52 South 8th Street, but rather his mother, Mrs. Freddie Banks, owned the house, the magistrate judge recommended that the court dismiss that action pursuant to the Prison Litigation Reform Act for failure to state a claim. Id. at *2. Banks lived in the home prior to his arrest and incarceration in February of 2005, see United States v. Banks, Criminal No. 2:03-CR-0245 (W.D. Pa.), which was prior to institution of the mortgage foreclosure proceedings. Without a legal interest in the real property, Banks lacked standing to bring the civil action. The district court adopted the magistrate judge's report and recommendation, dismissed the complaint and denied leave to amend as futile given Banks' lack of interest in the real property and therefore lack of standing to pursue his claims. United States ex rel. Vampire Nation v. CitiFinancial Mortgage Co., Inc., Civil Action No. 06-936, 2007 WL 2142410 (W.D. Pa. July 24, 2007).

C. Filing of the Instant Lawsuit

On October 15, 2010, Banks filed the instant action against numerous defendants. (Doc. 1). Claiming to be a Lakota Sioux American Indian, Banks asks the court to compel the Secretary of the Interior to have the defendants arrested and punished under the provisions of the Sioux Treaty of Fort Laramie of 1868. (Id. ¶ 3). He further requests that the court compel the U.S. Attorney to present evidence to a grand jury of criminal wrongdoing, violations of civil rights, and violations of the Target Asset Relief Program. (Id. ¶ 4).*fn3 Finally, Banks asserts that only the Oglala Sioux Tribal Court has jurisdiction over an American Indian in a mortgage foreclosure action. (Id. ¶ 5). Therefore, he requests that this court order the Court of Common Pleas of Allegheny County to dismiss the mortgage foreclosure action, CitiFinancial Mortgage Co., Inc. v. Banks, Allegheny County, GD-06-001215. (Id. ¶ 5). Banks, a frequent litigator in the federal courts, with three strikes under the Prison Litigation Reform Act ("PLRA"), a statute which requires the screening and dismissal of inmate complaints in certain circumstances, see 28 U.S.C. § 1915, claims that the instant action is criminal in nature, and thus, the PLRA does not apply. (Id. ¶ 6).

The court initially dismissed the action after Banks failed to pay the filing fee or move to proceed without prepayment of fees and costs within thirty (30) days. (See Docs. 5, 7). Banks moved to reopen the case, and proceed without prepayment of fees, asserting that he was in transit to FCI-Safford and did not receive the court's order. (Docs. 8, 9). The court granted the motions and had the complaint served. (Docs. 10, 12).

On February 22, 2011, the Court of Common Pleas of Allegheny County ("Court defendant") filed a motion to dismiss (Doc. 16) asserting Eleventh Amendment immunity and, in the alternative, that as a state entity, the court does not qualify as a "person" subject to suit under 42 U.S.C. § 1983. On March 31, 2011, defendants Lisa A. Lee, Joseph A. Goldbeck, Jr., Gary E. McCafferty, Michael T. McKeever, Kristina G. Murtha, Leslie E. Puida, Thomas I. Puleo, Jay E. Kivitz, David B. Fein, Ann E. Swartz, Andrew F. Gornall and Goldbeck McCafferty & McKeever (hereinafter the "law firm defendants") moved to dismiss the complaint (Doc. 26). The law firm defendants assert numerous grounds for dismissal, including pursuant to Federal Rule of Civil Procedure 41(b) for fraud on the court, the PLRA under the three-strikes rule, Rule 12(b)(6) for failure to state a claim, Rule 12(b)(1) for lack of jurisdiction, and Rule 12(b)(3) for improper venue. (Doc. 26). The third motion dismiss (Doc. 29), filed on April 1, 2011, by CitiFinancial Mortgage Co., Inc. and Deborah Guffy, a CitiFinancial employee (hereinafter "CitiFinancial defendants"), asserts that Banks' claims are barred by the doctrine of res judicata based on the 2006 Western District of Pennsylvania case, and that Banks lacks standing. Finally, the federal government, on behalf of the United States Attorney, the Department of Justice, and the Secretary of the Interior (hereinafter the "federal defendants"), filed a motion to dismiss (Doc. 31) on April 4, 2011. The federal defendants assert that the complaint fails to state a claim upon which relief can be granted and that the complaint is deficient on jurisdictional grounds. (Id.) Banks filed a brief in opposition (Doc. 34) on April 18, 2011. The motions have been fully briefed and are ripe for disposition.

II. Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)); see also Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts contained in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Federal notice and pleading rules require the complaint to provide "the defendant notice of what the . . . claim is and the grounds upon which it rests." Phillips, 515 F.3d at 232 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint in the face of a Rule 12(b)(6) motion, the court must conduct a three-step inquiry. See Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). In the first step, "the court must 'tak[e] note of the elements a plaintiff must plead to state a claim.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1947 (2009)). Next, the factual and legal elements of a claim should be separated; well-pleaded facts must be accepted as true, while mere legal conclusions may be disregarded. Id.; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once the well-pleaded factual allegations have been isolated, the court must determine whether they are sufficient to show a "plausible claim for relief." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. at 1950 (citing Twombly, 550 U.S. at 556); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"). A claim "has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is ...


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