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Taggart v. United States Department of Justice

United States District Court, E.D. Pennsylvania

April 23, 2018

KENNETH TAGGART, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.

          MEMORANDUM

          GERALD J. PAPPERT, J.

         Kenneth 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.)[1] 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.[2]

         I

         On 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.

         According 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.)

         Taggart 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. ¶ 41.)[3] 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.)

         II

         A 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).

         III

         A 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.)

         A

         i

         The 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.

         Taggart 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. ...


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