United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
Taggart seeks a writ of mandamus to compel the United States
Department of Justice (“DOJ”), Office of the
Comptroller of Currency (“OCC”), the Department
of the Treasury, the Office of the Inspector General of the
Department of the Treasury (“Treasury OIG”), the
Department of Housing and Urban Development
(“HUD”), and the Office of the Inspector General
of the Department of Housing and Urban Development
(“HUD OIG”) to investigate and prosecute fraud
allegedly committed by Wells Fargo Bank N.A. (Am. Pet. for
Writ of Mandamus, ECF No. 4.) This is one of six lawsuits
Taggart has filed relating to a pending foreclosure action
against him in the Montgomery County Court of Common Pleas.
(Statement of Facts (“SOF”) ¶ 1, Am. Pet.
for Writ of Mandamus.) Including the imminent dismissal of this
case, Taggart is zero for five with the sixth case still
pending. Here, the Defendants filed a Motion to Dismiss
(Mot., ECF No. 7) pursuant to Rule 12(b)(1) arguing that
Taggart lacks standing and the Court lacks subject matter
jurisdiction and also pursuant to Rule 12(b)(6) contending
that Taggart's Amended Petition fails to state a claim.
Taggart responded to the Motion (Pl's Resp. in Opp., ECF
Nos. 11, 12), which the Court now grants because the
Defendants are immune from suit and the Court lacks subject
matter jurisdiction over Taggart's claim.
April 1, 2010, Wells Fargo initiated its foreclosure action
against Taggart in the Montgomery County Court of Common
Pleas. (SOF ¶ 1, Am. Pet. for Writ of Mandamus.) Wells
Fargo claimed it was a successor in interest to a mortgage
and note created by an entity known as American Partners Bank
N.A. (Id.) Taggart asserts that the mortgage
“was purported to have been created” on December
16, 2008 (id. ¶ 7) but American Partners Bank
N.A. did not exist on that date (id. ¶ 6). To
come to this conclusion, Taggart traced the history of
American Partners Bank.
to Taggart, Federal City Bancorp., Inc. purchased Assurance
Partners Bank in April 2005 and changed its name to American
Partners Bank. (Id. ¶ 22.) On January 16, 2008,
Affinity Financial Corp., Inc. purchased American Partners
Bank and on January 21, 2008 changed its name to Waterfield
Bank. (Id. ¶¶ 23, 24.) Taggart contends
that once this name change took place, American Partners Bank
ceased to exist (id. ¶ 33) and thus could not
be the entity that created the mortgage and note at issue in
the pending foreclosure action. Taggart asserts that the six
government defendants “failed to take action upon
knowledge” of this fraud. (Id. ¶ 31.)
emailed Richard Delmar, Counsel to the Inspector General of
the Treasury OIG, on June 5, 2017 claiming that his mortgage
and note were fraudulent. He did not receive a response.
(Id. ¶¶ 5-8.) In conflict with his claim
that the Defendants failed to take any action, Taggart also
alleges that DOJ and the HUD OIG investigated the mortgage
and note in question. (Id. ¶ 3.) The other
defendants also “knew of the bank fraud for many years
and simply ignored it.” (Id. ¶
Taggart asks the Court to “command all government
agencies to enforce all laws applicable (sic) regulate and
enforce mortgages, notes and financial instruments, and take
any action related to fraud, and fraud on the Court committed
by Wells Fargo…and all parties who are proffering, or
holding ‘American Partners Bank' documents created
after January 21, 2008 to be valid.” (Id.
¶ 51.) Taggart also states that the government
agencies' failure to investigate will result in his
filing a complaint with the United States Congress which,
along with his Complaint in this case, will be immediately
provided to “all public news outlets and news
magazines.” (Id. ¶ 64.)
party's Rule 12(b)(1) motion “may be treated as
either a facial or factual challenge to the court's
subject matter jurisdiction.” Gould Elecs. Inc. v.
United States, 220 F.3d 169, 176 (3d Cir. 2000)
modified, Simon v. United States, 341 F.3d
193 (3d Cir. 2003) (referencing Mortensen v. First Fed.
Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir.
1977)). When, as here, presented with a facial attack, the
Court “must only consider the allegations of the
complaint and documents referenced therein and attached
thereto, in the light most favorable to the plaintiff.”
Id. The plaintiff bears the burden of showing that
the action is properly in federal court. Samuel-Basset v.
Kia Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004).
defendant may move to dismiss for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1) if the party is immune from suit. “Absent a
waiver, sovereign immunity shields the Federal Government and
its agencies from suit.” F.D.I.C. v. Meyer,
510 U.S. 471, 475 (1994). The United States or its agencies
can only be sued if they consent. Id. (citing
United States v. Mitchell, 463 U.S. 206, 212
(1983)). A plaintiff bears the “burden of persuasion to
convince the court it has jurisdiction.” Gould
Elecs. Inc., 220 F.3d at 178. Taggart contends that
jurisdiction is proper under the Mandamus Act, the
Administrative Procedure Act (“APA”), and the
“federal question statute.” (SOF ¶¶ 59,
60, Am. Pet. for Writ of Mandamus.)
Mandamus Act provides district courts with original
jurisdiction over an action “to compel an officer or
employee of the United States or any agency thereof to
perform a duty owed to the plaintiff.” 28 U.S.C §
1361. Courts may only grant a petition for a writ of mandamus
as an “extraordinary remedy” if a plaintiff
“has exhausted all other avenues of relief and only if
the defendant owes him a clear nondiscretionary duty.”
Pittston Coal Grp. v. Sebben, 488 U.S. 105, 121
(1988); Heckler v. Ringer, 466 U.S. 602, 616 (1984).
The plaintiff bears the burden of showing that he has no
other means of relief and that there is a clear and
indisputable right to the writ he seeks. See In re
Nwanze, 242 F.3d 521, 524 (3d Cir. 2001). Even if the
plaintiff meets this burden, courts have discretion to grant
or deny the writ. Id.
seeks a writ compelling government agencies to investigate
and prosecute Wells Fargo for “bank fraud.”
Although Taggart has the burden of proving that the Court has
subject matter jurisdiction over the claim, he fails to show
that any defendants have a non-discretionary duty to
investigate Wells Fargo. Taggart contends that the DOJ
“has an obligation to take action against banks who are
flagrantly committing bank fraud.” (SOF ¶¶
42, 45, 46, Am. Pet. for Writ of Mandamus.) The DOJ has
discretion to investigate and prosecute cases. Morrow v.
Meehan, 258 Fed.Appx. 492, 494 (3d Cir. 2007);
Mashak v. ...