Conant v. Wells Fargo Bank, N.A., Civil Action No. 13–572 CKK

24 F.Supp.3d 1

Terry Walter Conant, Plaintiff

v.Wells Fargo Bank, N.A., et al., Defendants.

Civil Action No. 13–572 CKK

United States District Court, District of Columbia.

February 14, 2014

Terry Walter Conant, South Lake Tahoe, CA, pro se.

Paul A. Kaplan, Womble Carlyle Sandridge & Rice, LLP, Business Litigation, Drew E. Shenkman, Holland & Knight, LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, United States District Judge

Plaintiff Terry Walter Conant (“Conant” or “Plaintiff”) brings this action pro se challenging the foreclosure of his property. Presently before the Court are motions by several Defendants for dismissal of this lawsuit. Also before the Court are several motions by Plaintiff arguing that certain Defendants are in default, as well as a motion to strike filed by Defendants Wells Fargo Bank, N.A., and Anglin, Flewelling, Rasmussen, Campbell & Trytten, LLP. Upon consideration of the pleadings¹ , the relevant legal authorities, and the record as a whole, the Court issues the following rulings. The Court GRANTS IN PART and HOLDS IN ABEYANCE IN PART Defendants Wells Fargo Bank, N.A.'s and Anglin, Flewelling, Rasmussen, Campbell & Trytten, LLP's [6] Motion to Dismiss Pursuant to Rule 12(b)(2), 12(b)(5) and 12(b)(6) or, in the Alternative, for Summary Judgment Pursuant to Rule 12(d). Specifically, Defendant Anglin, Flewelling, Rasmussen, Campbell & Trytten, LLP's is DISMISSED WITHOUT PREJUDICE for lack of personal jurisdiction and failure to serve. Plaintiff's claims against Defendant Wells Fargo for violation of the Consent Judgment in United States v. Bank of America Corp., et al., No. 12–0361 (D.D.C. Apr. 4, 2012) and for violation of his due process rights are DISMISSED. The Court requests additional briefing from both parties as to Plaintiff's claims that Defendant Wells Fargo lacks standing to foreclose on his mortgage, has committed fraud, has violated the Fair Debt Collection Practices Act, and has committed intentional infliction of emotional distress. In making a determination as to Plaintiff's remaining claims, the Court will consider Plaintiff's [14] Motion to Portray and Assert the Certified Securitization Audit, with Memorandum of Law, as well as the exhibits attached to this filing. The Court also GRANTS Defendant LPS Agency Sales and Posting, Inc.'s [9] Motion to Dismiss Complaint and Incorporated Memorandum of Law. Defendant LPS Agency Sales and Posting, Inc. is DISMISSED WITH PREJUDICE because Plaintiff has failed to state claim upon which relief can be granted against this Defendant. The Court also GRANTS Defendant NDeX West, LLC's [35] Motion to Dismiss, or in the Alternative, for Summary Judgment. Defendant NDeX West is DISMISSED WITHOUT PREJUDICE for lack of personal jurisdiction. In addition, Defendants John Does 1–20 are DISMISSED WITHOUT PREJUDICE for failure to serve. The Court also DENIES Defendant Wells Fargo Bank, N.A.'s and Anglin, Flewelling, Rasmussen, Campbell & Trytten, LLP's [28] Objection and Motion to Strike Affidavit of Terry Conant Filed in Support of Plaintiff's “Answer to Court Order (July 31, 2013) and/or Motion for Summary Judgment to Dismiss.” With respect to motions filed by Plaintiff, the Court DENIES Plaintiff's [ 15] Motion for Default Judgment, Damages and Enforcement of the Consent Decree Regarding Defendants Wells Fargo Bank, N.A. and Anglin, Flewelling, Rasmussen, Campbell & Trytten, LLP; Plaintiff's [ 16] Motion to Quash Defendants LPS Agency Sales and Posting, Inc.'s Motion to Dismiss Complaint and Incorporating Memorandum of Law; Plaintiff's [ 17] Motion to Quash Defendants Wells Fargo Bank, N.A. and Anglin, Flewelling, Rasmussen, Campbell & Trytten, LLP Motion to Dismiss Pursuant to Rule 12(b)(2), 12(b)(5) and 12(b)(6) or, in the Alternative, for Summary Judgment Pursuant to Rule 12(d); and Plaintiff's [39] Motion for Order of Default Judgment, Damages, and Enforcement of the Consent Decree Terms and Conditions, Jointly and Severally Against the Defendants Wells Fargo Bank, N.A., Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP.

I. BACKGROUND

A. Factual Background

Before proceeding to the facts of this case, the Court must clarify several preliminary issues of dispute. Plaintiff initially filed a fifty-four page Complaint in this action on April 19, 2013, which generally challenged the propriety of the foreclosure action against him by Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) and its agents. See generally Compl. On May 30, 2013, Defendants Wells Fargo and Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP (“AFRCT”) filed their [6] Motion to Dismiss Pursuant to Rule 12(b)(2), 12(b)(5) and 12(b)(6) or, in the Alternative, for Summary Judgment Pursuant to Rule 12(d). Rule 12(d) states that, “[i]f, on a motion under Rule 12(b) ... matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). Wells Fargo and AFRCT's motion also included a “Statement of Undisputed Material Facts in Support of Motion to Dismiss Pursuant to Rule 12(b)(2), 12(b)(5) and 12(b)(6) or, in the Alternative, for Summary Judgment Pursuant to Rule 12(d) ” as well as documentary evidence in support of this statement of facts. See Wells Fargo MTD at 23–27. Because this motion sought, in the alternative, summary judgment as to Plaintiffs' claims, and included a statement of facts in support of this request, the Court provided Plaintiff with the following background in alerting him of the need to respond to this motion:

The Court notes that Defendants' motion is brought in part as a motion for summary judgment under Federal Rule of Civil Procedure 56. Plaintiff is warned that, on a motion for summary judgment, “any factual assertions in the movant's affidavits will be accepted by the district judge as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion.” Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir.1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.1982) ). In other words, a party opposing a motion for summary judgment, such as Plaintiff, may not rebut the factual assertions set forth in the moving party's affidavits, sworn statements, or other materials simply by claiming that those factual assertions are false or incorrect. Instead, the party opposing summary judgment must either (a) show that the materials relied upon by the moving party do not establish the absence or presence of a genuine dispute, or (b) come forward with its own affidavits, sworn statements, or other competent materials contradicting the moving party's assertions. See Fed.R.Civ.P. 56(c)(1). In so doing, the party must point to specific parts of the record that support its argument; the Court need not consider materials not specifically identified. See Fed.R.Civ.P. 56(c)(3).

Order (May 31, 2013), ECF No. [8] at 2. In his responsive pleading, Plaintiff did not provide additional materials supporting his claims or specifically respond to Wells Fargo and AFRCT's statement of facts.

See Pl.'s Opp'n to Wells Fargo MTD. Instead, Plaintiff submitted a generalized affidavit on his own behalf stating that he “affirm[ed] and assert[ed] [that] all statements, representation of facts and circumstances portrayed in the Original Complaint and all subsequent pleadings made by me in the above styled case are true and correct based on knowledge and belief.” Id., Ex. 1 (Affidavit of Terry Walter Conant).

Defendants Wells Fargo and AFRCT subsequently moved to strike the portion of Plaintiff's affidavit in which he stated that “all statements, representation of facts and circumstances portrayed in the Original Complaint and all subsequent pleadings made by me in the above styled case are true and correct based on knowledge and belief.” See Wells Fargo Mot. to Strike at 1. The Court denies this motion to strike. In opposing Defendant Wells Fargo and AFRCT's motion for summary judgment, Plaintiff has apparently chosen to transform his Complaint into a verified complaint, and to rely on the materials previously submitted to the Court. Accordingly, although Plaintiff has not rebutted the factual statement contained in Wells Fargo's motion to dismiss, or in the alternative, for summary judgment, he has essentially offered his complaint as an opposing statement of facts. To the extent the statements in this document and subsequent filings prior to the filing of Plaintiff's Opposition are supported by materials in the record that have been submitted by Plaintiff, the Court will consider them in assessing Defendants' motion for summary judgment.

In making this assessment, the Court must also clarify which of Plaintiff's prior pleadings are properly before the Court. On July 26, 2013, Plaintiff filed a[ 14] Motion to Portray and Assert the Certified Securitization Audit, with Memorandum of Law. In this filing, Plaintiff asserts that Wells Fargo is not the owner of his loan, but rather that the loan was securitized and sold on the secondary mortgage securities market. Pl.'s Mot. to Portray at 1–2. Much of this filing is incomprehensible, and consists of seemingly irrelevant boilerplate discussion of Florida law that is irrelevant to this case. Id., Ex. 1 (Memorandum of Points and Authorities in Support of Plaintiff's Plaintiff's [sic] Motion to Portray and Assert the Certified Securitization Audit, with Memorandum of Law). However, this filing also includes as an exhibit a “Property Securitization Analysis Report” prepared by a company called Mortgage Compliance Investigators. Id., Ex. 2 (Property Securitization Analysis Report). This document contains an affidavit from an individual named Damion Emholtz who states that he is a private investigator who has researched the ownership of Plaintiff's mortgage. Id., ...