McKind v. U.S. Bank National Association

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

ROLAND G. MCKIND, CASE NO. 3:23 CV 882

Plaintiff,

v. JUDGE JAMES R. KNEPP II

U.S. BANK NATIONAL

ASSOCIATION, et al.,

MEMORANDUM OPINION AND

Defendants. ORDER

INTRODUCTION AND BACKGROUND

This is a pro se action filed by Plaintiff Roland G. McKind relating to a state foreclosure.

In July 2022, a judgment of foreclosure was entered against Plaintiff in the Lucas County Court of

Common Pleas in connection with property Plaintiff owned, and the subject property was

scheduled for sale. See U.S. Bank Nat’l Ass’n, Substitute Plaintiff MTGLQ Investors, L.P. v.

Roland G. McKind, et al., No. G-4801-CI-0202001327-000 (Lucas Cnty. Ct. of Comm. Pleas).

This Court dismissed a prior action Plaintiff filed in federal court relating to the foreclosure.

See Roland G. McKind v. Lucas Cnty. Bd. of Comm’rs, et al., No. 3:23 CV 467 (N.D. Ohio) (May

23, 2023). In the prior case, Plaintiff sued the Lucas County Board of Commissioners and the

Judge in the foreclosure case, asserting claims and violations of his rights in connection with the

foreclosure. This Court dismissed the action on, among other grounds, the doctrines of Rooker-

Feldman and res judicata. Id.

In this case, Plaintiff also seeks to challenge the propriety of the foreclosure. This time, he

sues different defendants: U.S. Bank National Association as Trustee for NRZ Pass-Through Trust

V11 (“U.S. Bank”), PHH Mortgage Corporation (“PHH”), MTGLQ Investors, L.P. (“MTGLQ”),

and Shellpoint Mortgage (“Shellpoint”). (Doc. 1). The specific claims he seeks to assert are not

entirely clear,1 but they challenge the propriety of the foreclosure and the validity of documents

pertaining to his loan, which he contends are invalid due to forgery, fraud, or other irregularity.

See id. at ¶¶ 4-10. He seeks damages and other relief. Id. at ¶ 44.

Defendants have filed Motions to Dismiss Plaintiff’s Complaint for lack of subject-matter

jurisdiction and failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and

(6). See Doc. 17 (Motion of PHH); Doc.18 (Motion of U.S. Bank, MTGLQ, and Shellpoint).

Among other grounds, they contend Plaintiff has no private right of action under federal criminal

laws he cites and that his action is barred by the Rooker-Feldman doctrine.

Plaintiff has filed various Motions for Default Judgment against Defendants. (Docs. 11,

12, 13, 14, 15, 16). He also filed Motions for Summary Judgment (Docs. 23, 24, 25, 26), Amended

Motions for Summary Judgment (Docs. 28, 29, 30, 31), and Motions to Compel Discovery (Docs.

32 and 33).

For the reasons that follow, Defendants’ Motions to Dismiss are granted, Plaintiff’s

Motions are denied, and this action is dismissed.

STANDARD OF REVIEW

A complaint is subject to dismissal under Fed. R. Civ. P. 12(b)(6) if it fails to state claim

upon which relief can be granted. To survive a dismissal, a complaint “must present ‘enough facts

to state claim to relief that is plausible on its face’” when its factual allegations are presumed true

and all reasonable inferences are drawn in favor of the non-moving party. Total Benefits Plan.

1. Plaintiff’s Complaint refers to a number of federal criminal laws and provisions of the Uniform

Commercial Code, and it lists nine “Counts,” including “Wrongful Foreclosure,” “Fraudulent

Modified Note,” “Identity Theft,” “Forgery,” “Extortion,” “Mail Fraud,” “Money Laundering,”

“Wire Fraud,” and “Evidence Tampering.” (Doc. 1, at 8).

Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although pleadings and documents filed

by pro se litigants are “liberally construed” and held to a less stringent standards than formal

pleadings drafted by lawyers, Erickson v. Pardus, 551 U.S. 89, 94 (2007), even pro se complaints

must satisfy Rule 12(b)(6) to avoid dismissal. See Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir.

2010).

DISCUSSION

As a preliminary matter, there is no basis for default judgment against any Defendant. All

Defendants have appeared and responded to Plaintiff’s Complaint in accordance with the Court’s

rules and orders. As such, Plaintiff’s Motions for Default (Docs. 11, 12, 13, 14, 15, 16) are denied.

In addition, the Court agrees with Defendants that Plaintiff’s Complaint fails to state a

plausible claim upon which he may be granted relief. Plaintiff has no plausible claim under the

criminal laws he cites. Criminal statutes generally do not confer a private right of action, and

“courts do not ‘routinely, imply private rights of action in favor of the victims of violations of

criminal laws.’” See Butler v. Karet, 2021 WL 3633476, at *2 (N.D. Ohio) (quoting Ohlendorf v.

United Food & Commercial Workers Int’l Union, Local 876, 883 F.3d 636, 642 (6th Cir. 2018)).

The statutes Plaintiff cites do not provide a private right of action. See Ryan v. Ohio Edison Co.,

611 F.2d 1170, 1178-79) (6th Cir. 1979) (18 U.S.C. § 1341 does not provide a private right of

action); Wardlaw v. City of Detroit, 951 F.2d 351 (6th Cir. 1991) (table) (18 U.S.C. § 876 does not

provide a private right of action); Hariprasad v. Master Holdings, Inc., 788 F. App’x 783, 786-87

(2d Cir. 2019) (no basis identified for implying a private right of action under 18 U.S.C. § 473);

Malcom v. Colonial Life & Accident Co., 2022 WL 468949, at, *2-3 (E.D. Mich.) (18 U.S.C. §

471 does not provide a private right of action); Acevedo v. Cerame, 156 F. Supp. 3d 1326, 1329

(D.N.M. 2015) (no private right of action under 18 U.S.C. § 880).

Further, the Court finds Plaintiff’s Complaint fails to state a plausible claim for the same

reasons the Court dismissed Plaintiff’s prior complaint relating to the foreclosure.

Whatever Plaintiff’s claims are, they all rest on the premise that documents relating to his

loan or the modification of his loan were invalid and that foreclosure of his property was unlawful.

Those issues, however, were necessarily decided by the state court when it entered its foreclosure

judgment against Plaintiff in connection with the property. See, e.g., Givens v. Homecomings Fin.,

278 F. App’x 607, 609 (6th Cir. 2008) (action brought against mortgagee after state court order

granted mortgagee possession of residence due to mortgagor’s default was barred by res judicata);

Clark v. Lender Processing Serv., Inc., 949 F. Supp. 2d 763, 773-74 (N.D. Ohio 2013) (holding

that res judicata barred mortgagor’s claims where there was a prior, final decision on the merits in

an underlying state foreclosure action).

Accordingly, Plaintiff’s claims are barred by res judicata. This case involves the same

parties, or parties in privity with them, as the state foreclosure action and arises out of the same

transaction or occurrence, and Plaintiff’s claims relating to the validity of his loan or mortgage

could have been raised in the state case. See Rivet v. Regions Bank of La., 522 U.S. 470, 476 (1998)

(explaining that, under the doctrine of res judicata, “[a] final judgment on the merits of an action

precludes the parties . . . from relitigating issues that were or could have been raised in that action.”

(quoting Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)); Givens, 278 F. App’x

at 609.

In addition, to the extent Plaintiff seeks to invalidate the state court’s judgment of

foreclosure, his action is barred by the Rooker-Feldman doctrine, which provides that “lower

federal courts lack subject matter jurisdiction to review the decisions of state courts.” Givens, 278

F. App’x at 608. The Rooker–Feldman doctrine bars claims which, like Plaintiff’s claims here,

“rest[] on the premise that [a] state court entry of foreclosure was invalid.” Kafele v. Lerner,

Sampson & Rothfuss, L.P.A., 161 F. App’x 487, 490 (6th Cir. 2005); see also Heinz v. HSBC

Mortg. Svcs., Inc., 2021 WL 4942198, at *6 (N.D. Ohio) (granting motions to dismiss a complaint

challenging the validity of a state court foreclosure judgment on, among other grounds, the

doctrines of Rooker-Feldman and res judicata).

CONCLUSION

For the forgoing reasons, good cause appearing, it is

ORDERED that Defendants’ Motions to Dismiss Plaintiff’s Complaint (Docs. 17, 18) be,

and the same hereby are, GRANTED; and it is

FURTHER ORDERED that Plaintiff’s Motions for Default (Docs. 11-16), for Summary

Judgment (Docs. 23-26, 28-31), and for Discovery (Docs. 32, 33) be, and the same hereby are,

DENIED; and it is

FURTHER ORDERED that this action is DISMISSED pursuant to Fed. R. Civ. P.

12(b)(6); and the Court

FURTHER CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this

decision could not be taken in good faith.

/s James R. Knepp II

UNITED STATES DISTRICT JUDGE