Birchfield v. Deutsche Bank National Trust Company (RLJ2)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT GREENEVILLE

JACQUELINE BIRCHFIELD, )

)

Plaintiff, )

)

v. ) No. 2:19-CV-005

)

DEUTSCHE BANK NATIONAL TRUST )

COMPANY, et al. )

)

Defendants. )

MEMORANDUM OPINION

This civil action is before the Court on Plaintiff’s motions for recusal [docs. 59,

66],1 Plaintiff’s motion to amend [doc. 34], Plaintiff’s miscellaneous motions [docs. 9,

10, 25], and Defendants’ motions to dismiss [docs. 3, 14]. All of these motions are now

ripe for the Court’s review. See E.D. Tenn. L.R. 7.1(a). For the reasons stated below,

Plaintiff’s motions for recusal [docs. 59, 66] will be DENIED, Plaintiff’s motion to

amend [doc. 34] will be DENIED, Plaintiff’s motions for a TRO or preliminary

injunction [docs. 9, 10] will be DENIED, Plaintiff’s motion to recognize service [doc.

25] will be DENIED, and Defendants’ motions to dismiss [docs. 3, 14] will be

GRANTED.

1 When not otherwise specified, citations to the record indicate documents on the record

for the instant case, Case No. 2:19-cv-005.

I. MOTIONS TO RECUSE

Before addressing the merits of any other pending motion, the Court will first

address Plaintiff’s second and third motions to recuse. In her second motion to recuse,

Plaintiff contends that she has had to rely on friends to research and learn about the facts

of her case, and has worked with “research teams.” [Doc. 59]. Plaintiff asserts that she

has the right to associate with these research teams to assist in court matters. Plaintiff

asserts that the undersigned had no right to deny her the assistance of a research team,

and the undersigned has been “hostile” against non-lawyers. Plaintiff argues at length

that the undersigned improperly gave an “exclusive monopoly” and granted “special

emoluments” to bar association members, and relied on precedent created by members of

state and federal bars. In her third motion to recuse, Plaintiff reiterates these same

claims, and also asserts that other judges of this Court likely hold animus against her as a

non-lawyer. [Doc. 66].

Judicial disqualification is required under 28 U.S.C. § 455(a) “in any proceeding

in which [the Court’s] impartiality might reasonably be questioned.” The standard for

judicial disqualification is set forth in Liteky v. United States, 510 U.S. 540 (1994):

First, judicial rulings alone almost never constitute a valid basis for a bias

or partiality motion. … In and of themselves (i.e., apart from surrounding

comments or accompanying opinion), they cannot possibly show reliance

upon an extrajudicial source; and can only in the rarest circumstances

evidence the degree of favoritism or antagonism required … when no

extrajudicial source is involved. Almost invariably, they are proper

grounds for appeal, not for recusal. Second, opinions formed by the judge

on the basis of facts introduced or events occurring in the course of the

current proceedings, or of prior proceedings, do not constitute a basis for a

bias or partiality motion unless they display a deep-seated favoritism or

antagonism that would make fair judgment impossible. Thus, judicial

remarks during the course of a trial that are critical or disapproving of, or

even hostile to, counsel, the parties, or their cases, ordinarily do not support

a bias or partiality challenge. They may do so if they reveal an opinion that

derives from an extrajudicial source; and they will do so if they reveal such

a high degree of favoritism or antagonism as to make fair judgment

impossible. … Not establishing bias or partiality … are expressions of

impatience, dissatisfaction, annoyance, and even anger, that are within the

bounds of what imperfect men and women, even after having been

confirmed as federal judges, sometimes display. A judge’s ordinary efforts

at courtroom administration – even a stern and short-tempered judge’s

ordinary efforts at courtroom administration – remain immune.

Id. at 555.

The plaintiff has the burden of establishing objective evidence of bias, i.e.,

whether a reasonable person, knowing all the surrounding circumstances, would consider

the judge impartial. Gargallo v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 91-

3822, 1992 WL 99456, at *5 (6th Cir. May 12, 1992); United States v. Sammons, 918

F.2d 592, 599 (6th Cir. 1990). “‘Personal’ bias is prejudice that emanates from some

source other than participation in the proceedings or prior contact with related cases [and]

… arises out of the judge’s background and associations.” Sammons, 918 F.2d at 599

(quoting Wheeler v. Southland Corp., 875 F.2d 1246, 1251-52 (6th Cir. 1989)).

The undersigned is also mindful that the Sixth Circuit has cautioned that “[t]here

is as much obligation upon a judge not to recuse himself when there is no occasion as

there is for him to do so when there is.” Easley v. Univ. of Mich. Bd. of Regents, 853

F.2d 1351, 1356 (6th Cir. 1988) (alteration in original) (citation omitted). In short,

unnecessary recusals waste judicial resources. City of Cleveland v. Krupansky, 619 F.2d

576, 579 (6th Cir. 1980). Likewise, granting groundless disqualification motions also

encourages judge-shopping.

To the extent that Plaintiff’s second and third motions to recuse rely on the same

grounds raised in her first motion to recuse, Plaintiff’s motion to recuse will be denied on

the same grounds as her first motion. As to Plaintiff’s contention that the undersigned

improperly limited Plaintiff’s association with a research group, the Court did not in any

way limit Plaintiff’s association with any group, but merely limited the parties that could

file pleadings in the instant action, after clear abuse by Plaintiff’s friend, Judson Witham,

after the Court denied his motion to intervene. This Court has the “inherent authority to

manage [its] docket and courtrooms with a view towards the efficient and expedient

resolution of cases.” Dietz v. Bouldin, 136 S. Ct. 1885, 1893 (2016). The Court was

exercising this authority in limiting Mr. Witham’s ability to continue filing frivolous

motions in this matter. Moreover, other than the order limiting Mr. Witham’s ability to

file pleadings, Plaintiff’s only indication of bias against non-lawyers are rulings in favor

of Defendants in this matter. As the Court previously explained, disagreement with the

Court’s orders is insufficient to merit recusal. Accordingly, Plaintiff has not met her

burden of establishing objective evidence of bias, and her motions to recuse [docs. 59,

66] will be DENIED. Because recusal is not warranted, the Court will now address the

merits of the pending motions.

II. Motions to Dismiss

a. Background

In her pro se complaint, Plaintiff offers a tangled web of vague allegations against

the Defendants. [Doc. 2]. Plaintiff lists the following Defendants: (1) Deutsche Bank

National Trust Company, as Trustee for J.P. Morgan Mortgage Acquisition Trust

(“Deutsche Bank”); (2) Chase Bank Acquisition Trust; (3) Chase Bank USA NA;2

(4) Premier Mortgage Funding; and (5) Select Portfolio Services.3 Plaintiff alleges that

the following acts of Defendants are the basis for her complaint:

(1) Defendants baited her into a subprime mortgage based on her credit

information;

(2) Defendants failed to verify her employment, income, or conduct a

meaningful credit history investigation when offering her a mortgage;

(3) Defendants moved her mortgage out of the United States without her

knowledge;

(4) Defendants did not disclose their subprime mortgage scheme to her;

(5) Defendants falsified Real Estate Settlement Procedures Act (“RESPA”)

and Truth in Lending Act (“TILA”) disclosures;

(6) Defendants misled her into a payment lowering scheme, causing her to

default on monthly payments for 90 days; and

(7) Defendants failed to comply with written requests for records.

Plaintiff appears to allege that, through these actions, Defendants are liable under the

Racketeer Influenced and Corrupt Organizations Act (“RICO”), RESPA, TILA, and are

criminally liable for extortion and bank fraud. [Id.]. Although Plaintiff does not

specifically explain this in her complaint, it appears that this matter arises out of a

foreclosure on Plaintiff’s residence, located at 351 Lyons Road, Bluff City, Tennessee

(the “Property”), which resulted in her eviction from the home.

2 Named Defendants Chase Bank Acquisition Trust and Chase Bank USA NA will be

collectively referred to as “Chase” in this memorandum opinion.

3 Plaintiff completes her list of defendants with “Et Al.” However, Plaintiff never

identifies any other defendants by name in the body of her complaint.

As background, in 2012, Plaintiff and her then-husband, through counsel, filed a

complaint in the Sullivan County Chancery Court, against Chase and Deutsche Bank,

among several others, alleging that, as a result of numerous transfers of Plaintiffs’

mortgage loans, Defendants no longer held any interest in the subject property, and

unlawfully attempted to collect payment from Plaintiffs, clouded Plaintiffs’ title, and

claimed a default status as to the mortgage loan to pursue a foreclosure sale. [Case No.

2:12-cv-185, doc. 1-2]. Plaintiff and her then-husband, through counsel, also filed suit

against the same defendants in the Carter County Chancery Court, raising the same

allegations. [Case No. 2:12-cv-206, doc. 1-2]. Both cases were ultimately removed to

federal court. [Case No. 2:12-cv-185, doc. 1; Case No. 2:12-cv-206, doc. 1]. After

several motions to dismiss were filed by defendants, including Chase, Plaintiffs filed a

notice of voluntarily dismissal of both cases. [Case No. 2:12-cv-185, doc. 44; Case No.

2:12-cv-206, doc. 48].

In 2016, Deutsche Bank filed suit against Plaintiff, her then-husband, Chase, and

several others, in the Sullivan County Chancery Court. [Case No. 2:16-cv-19, doc. 1-1].

The case was then removed to federal court. [Id., doc. 1]. In its complaint, Deutsche

Bank alleged that the Property was conveyed to the Birchfields on October 25, 2006, via

a warranty deed, and financed through a purchase money loan from Chase (“First Loan”),

evidenced by a promissory note (“First Note”). [Id., doc. 1-1]. To secure repayment of

the First Loan and First Note, the Birchfields executed a purchase money Deed of Trust

conveying the Property to David R. Wilson as Trustee for Chase (“First Deed of Trust”).

Although somewhat unclear on the face of the complaint, it appears that the Birchfields

also executed a Second Deed of Trust to David R. Wilson, as Trustee for Chase.

Deutsche Bank alleged that, by mistake, the legal description of the property in the First

Deed of Trust and Second Deed of Trust correctly described Tract I of the Property, and

contained the correct address, but failed to include the legal descriptions for Tracts II and

III of the Property, despite the parties’ intention that Tracts II and III be included.

Ultimately, Chase assigned the First Deed of Trust to Deutsche Bank, which appointed

Wilson & Associates, as the successor trustee. When the Birchfields defaulted under the

First Loan and First Deed of Trust, Wilson & Associates conducted a non-judicial

foreclosure sale, at which Deutsche Bank was the highest bidder, and Wilson &

Associates conveyed the Property to Deutsche Bank via Trustee’s Deed. Deutsche Bank

alleges that the Trustee’s Deed correctly described Tract I, and contained the correct

address of the Property, but failed to include the correct legal descriptions of Tracts II and

III, despite the parties’ intentions to include Tracts II and III in the Trustee’s Deed. As a

result, Deutsche Bank sought rescission and reformation of the contracts. [Id.].

The Court ultimately granted summary judgment in favor of Deutsche Bank, and

granted rescission of the foreclosure sale and reformation of the erroneous deeds of trust

and Trustee’s Deed. [Id., doc. 41]. The Court concluded that the exclusion of Tracts II

and III in these documents was due to mutual mistake, noting that the Birchfields

conceded that they intended to include all three tracts of land in the deeds of trust. [Id.].

Thereafter, in October 2018, Ms. Birchfield filed a pro se petition for Chapter 7

bankruptcy. [Case No. 2:18-bk-51800, doc. 1]. In her petition, Ms. Birchfield stated that

she was claiming a homestead exemption of more than $160,375, and wrote “disputed

residential domicile” to the side of the questionnaire. [Id. at 23]. Additionally, in listing

her secured claims on the petition, Ms. Birchfield listed Chase Bank as a creditor, as to

the Property, and stated that the claim was disputed. [Id. at 25].

During her bankruptcy proceeding, Plaintiff began filing motions reminiscent of

those filed in the instant case, starting with a Demand for Production of Proof of Standing

and Loan Servicing Agreements. [Id., doc. 18]. In this motion, Plaintiff stated that, in

August 2018, she sent a “qualified written request” demanding production of evidence to

Select Portfolio Services, Chase, and Deutsche Bank, but received no response. [Id. at

2-3]. Plaintiff claimed that the RESPA required these parties to acknowledge receipt of

her “qualified written request” and provide answers within certain time frames. [Id. at 4].

Plaintiff also referenced alleged duties of those parties under the TILA. [Id.]. Plaintiff

asserted that the debt collectors at issue had never proven their genuine ownership of the

alleged debt or their standing to sue or foreclose on the Property. [Id. at 11]. The

bankruptcy court ultimately denied this motion. [Id., doc. 27].

Plaintiff then filed a motion, demanding production of records, and asking the

court to take notice of the predatory subprime loan at issue, police raids of Deutsche

Bank, and fines levied against Deutsche Bank. [Id., doc. 34 at 1]. Plaintiff again

mentioned the “qualified written requests” and stated that Premier Mortgage Funding,

Deutsche Bank, Chase, Select Portfolio Services, and others had engaged in unlawful

servicing and collecting activities. [Id. at 2-3]. Plaintiff further asserted that the

mortgage on the Property was void for fraud because it began as an unlawful predatory

subprime mortgage. [Id. at 4].

Deutsche Bank then filed a motion for relief from the automatic stay provisions of

the bankruptcy code. [Id., doc. 32]. Deutsche Bank asserted that the foreclosure sale of

the Property was conducted on August 23, 2018, and, after the Property was sold to

Deutsche Bank, a Substitute Trustee’s Deed was executed on August 27, 2018. [Id. at 3].

Thus, Deutsche Bank asserted that, when Plaintiff filed her bankruptcy action on October

23, 2018, she did not hold a legal or equitable interest in the Property, and thus, the

Property should not be considered part of the bankruptcy estate. [Id.].

Plaintiff objected to the motion, labeling it “fraudulent.” [Id., doc. 42 at 1].

Plaintiff stated that the mortgage was obtained by deception and fraud, and therefore, was

a contract against public policy. [Id. at 1-2]. Plaintiff also stated that the mortgage was

fraudulent and not enforceable because Premier Mortgage Funding concealed the

“Improper, Unlawful, Predatory and Deceptive DISBURSEMENTS” on its RESPA

statement. [Id. at 2]. Plaintiff contended that subprime predatory mortgages and falsified

RESPA disbursement disclosures voided mortgages where such deceptions were

employed. [Id. at 5]. Plaintiff further stated that the alleged false loan disbursement

statements violated the TILA. [Id.].

After a hearing on the motion, the bankruptcy court entered an order stating that

any opposition to the motion was either withdrawn or overruled at the hearing. [Id., doc.

46 at 1-2]. The bankruptcy court granted Deutsche Bank’s motion, concluding that the

Property was never property of the bankruptcy estate, and Deutsche Bank was free to

proceed with its state law remedies against the Property. [Id. at 2]. In a separate order,

the bankruptcy court denied Plaintiff’s motion demanding production of documents. [Id.,

doc. 48]. The bankruptcy court then entered a final order of discharge. [Id., doc. 52].

In the instant case, Chase has filed a motion to dismiss, arguing that Plaintiff’s

claims are barred by res judicata and fail to state a claim upon which relief may be

granted. [Doc. 4 at 6, 8]. As to res judicata, Chase contends that Plaintiff’s arguments

would have been compulsory counterclaims in the lawsuit initiated by Deutsche Bank,

No. 2:16-cv-19, but Plaintiff failed to raise it at that time. [Id. at 7]. As to failure to state

a claim, Chase contends that Plaintiff’s claims are unsupported, hypothetical claims. [Id.

at 8]. As to her RICO claims, Chase argues that Plaintiff has failed to articulate with any

specificity how any actions of Chase amounted to “racketeering activity” or how such

directly affected her. [Id. at 9]. Finally, as to Plaintiff’s RESPA claims, Chase contends

that the RESPA only applies to loan servicers, and Plaintiff has not alleged that Chase is

a servicer, nor has Plaintiff alleged any damages in connection to this claim as to Chase.

[Id. at 10].

Plaintiff responds that this case is not ripe for dismissal under Rule 12(b)(6).

[Doc. 5 at 2]. Plaintiff contends that her pleading is plausible in light of various fines and

penalties that Plaintiff alleges the government has leveled against the Defendants. [Id. at

6]. Plaintiff contends that res judicata does not apply, because Defendants fraudulently

concealed the instant causes of action. [Id. at 13]. Plaintiff further reiterates many of the

allegations of her complaint.

Chase replies that Plaintiff’s response fails to cure the complaint’s deficiencies,

namely, that Plaintiff has failed to allege with any level of specificity the details

necessary to support any of the causes of action. [Doc. 6 at 1]. Chase asserts that the

complaint, and Plaintiff’s response to the motion to dismiss, are replete of any details

regarding Plaintiff’s own mortgage, the only issue on which she has standing to sue. [Id.

at 2]. Regarding res judicata, Chase asserts that Plaintiff’s argument that there are newly

discovered causes of action fails in the face of Plaintiff’s own documents, which do not

sufficiently articulate any plausible cause of action. [Id. at 3].

Plaintiff has also filed an unauthorized sur-reply, see E.D. Tenn. L.R. 7.1(d),

arguing that full discovery should be ordered because Defendants have gone to great

lengths to secret their “racketeering activities.” [Doc. 7 at 3]. Plaintiff also contends that

Federal Rule of Civil Procedure 8(a) only requires notice of the claim, and proof is not

required until after discovery. [Id. at 5].

Defendants Deutsche Bank and Select Portfolio Services have also filed a motion

to dismiss, raising many of the same arguments raised by Chase. [Doc. 15]. These

defendants argue that all of Plaintiff’s claims have been, or should have been, litigated in

the prior lawsuits, and thus, the claims are barred by res judicata. [Id. at 5-6].

Additionally, these defendants contend that the allegations regarding RICO, RESPA,

fraud, and invalidity of the underlying security interests held by Chase and Deutsche

Bank are compulsory counterclaims under Rule 13(a) because they arose out of the same

transaction or occurrence, and therefore, should have been brought in No. 2:16-cv-19.

[Id. at 7]. These defendants further argue that Plaintiff has failed to state a RICO claim,

because she fails to specify how any actions of Defendants amount to “racketeering

activity” or how they directly affected her. [Id. at 8]. The defendants then contend that

Plaintiff has failed to state a RESPA claim because the only semi-factual allegation is that

Defendants failed to provide records required by the RESPA, but this allegation is

blatantly false. [Id. at 9-10]. Plaintiff did not respond to this motion to dismiss, and the

time for doing so has long passed. See E.D. Tenn. L.R. 7.1(a).

b. Standard of Review

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint

may be dismissed for failure to state a claim if a plaintiff fails to proffer “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). When considering a Rule 12(b)(6) motion, a court must treat all of the

well-pleaded allegations of the complaint as true and construe all of the allegations in the

light most favorable to the non-moving party. DIRECTTV, Inc. v. Treesh, 487 F.3d 471,

476 (6th Cir. 2007). However, the Court “need not accept as true legal conclusions or

unwarranted factual inferences, and [c]onclusory allegations or legal conclusions

masquerading as factual allegations will not suffice.” In re Travel Agent Comm’n

Antitrust Litig., 583 F.3d 896, 903 (6th Cir. 2009) (internal citations and quotation marks

omitted). Dismissal under Rule 12(b)(6) “is proper when there is no set of facts that

would allow the plaintiff to recover.” Carter by Carter v. Cornwell, 983 F.2d 52, 54 (6th

Cir. 1993); see also Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005) (“To survive a

motion to dismiss under Rule 12(b)(6), a complaint must contain either direct or

inferential allegations respecting all the material elements to sustain a recovery under

some viable legal theory.”).

c. Analysis

i. Res Judicata

A claim is barred by the doctrine of res judicata if the following elements are

present: “(1) a final decision on the merits by a court of competent jurisdiction; (2) a

subsequent action between the parties or their ‘privies’; (3) an issue in the subsequent

action which was litigated or which should have been litigated in the prior action; and

(4) an identity of the causes of action.” Bittinger v. Tecumseh Prods. Co., 123, F.3d 877,

880 (6th Cir. 1997).

1. Final Judgments

Finality “is considered in a more pragmatic and less technical way in bankruptcy

cases than in other situations.” Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565,

578 (6th Cir. 2008) (quoting Lindsey v. O’Brien, Tanksi, Tanzer & Young Health Care

Providers of Conn., 86 F.3d 482, 488 (6th Cir. 1996)) (internal quotation marks omitted).

Thus, when an order in a bankruptcy cases “finally dispose[s] of discrete disputes within

the larger case, it may be appealed immediately.” Id. (quoting Lindsey, 86 F.3d at 488)

(internal quotation marks omitted) (alteration in original). Accordingly, a bankruptcy

court’s order overruling a debtor’s objection to claims is a final order, because it ends

litigation on the merits and leaves nothing for the court but execution of the judgment.

Morton v. Morton, 298 B.R. 301, 303 (6th Cir. BAP 2003).

As Defendants concede, Plaintiff’s 2012 lawsuits (Case Nos. 2:12-cv-185,

2:12-cv-206) were both voluntarily dismissed, and thus, do not involve final decisions on

the merits for purposes of res judicata. However, the Court’s grant of summary

judgment in favor of Deutsche Bank in No. 2:16-cv-19 is clearly a final judgment for

purposes of res judicata. See In re City of Detroit, 531 B.R. 171, 174 (E.D. Mich. 2015)

(“A summary judgment constitutes a ‘final decision on the merits’ for res judicata

purposes.”) (citing Helfrich v. Metal Container Corp., 11 F. App’x 574, 576 (6th Cir.

2001)). Additionally, with regard to Plaintiff’s bankruptcy proceeding, at the very least,

the bankruptcy court’s decision to overrule Plaintiff’s objections to Deutsche Bank’s

motion for relief from the automatic stay provisions of the bankruptcy code constitutes a

final decision on the merits. See Morton, 298 B.R. at 303. Accordingly, the Court

concludes that the first element of res judicata is met as to the prior litigation in No.

2:16-cv-19 and the relevant portion of the bankruptcy proceeding.

2. Same Parties Involved

As to No. 2:16-cv-19, Ms. Birchfield, Deutsche Bank, and Chase were all named

parties in the action. Because these two parties were specifically named, the second

element is clearly met as to Deutsche Bank and Chase with regard to that action.

Moreover, although Select Portfolio Services was not a named party in No. 2:16-cv-19,

res judicata bars not only the same parties, but also those in privity with the parties, from

bringing suit later. Sanders Confectionary Prods., Inc. v. Heller Financial, Inc., 973 F.2d

474, 481 (6th Cir. 1992). “Privity in this sense means a successor in interest to the party,

one who controlled the earlier action, or one whose interests were adequately

represented.” Id. It appears to the Court that Select Portfolio Services was a loan

servicer to Deutsche Bank. [Doc. 15 at 6]. A loan servicer who takes over servicing

duties from a creditor is a successor in interest, and thus, in privity with the creditor for

res judicata purposes. Chapman v. JPMorgan Chase Bank, N.A., 651 F. App’x 508, 510

(6th Cir. 2016). Thus, Select Portfolio Services is a party in privity with Deutsche Bank,

and the second element of res judicata is met as to all parties, relating to No. 2:16-cv-19.

Likewise, with regard to Plaintiff’s prior bankruptcy action, entities such as

creditors and equity security holders in the debtor should be considered parties for res

judicata purposes, because the Bankruptcy Code contains a strong preference for final

resolution of all claims involving the debtor. Sanders Confectionary, 973 F.2d at 480-81.

The Court concludes that Chase and Deutsche Bank, Plaintiff’s creditors, and Select

Portfolio Services, a loan servicer for Deutsche Bank, all qualify as “parties” to

Plaintiff’s prior bankruptcy action, in light of this definition of “parties.” Thus, the

second element of res judicata is met as to Plaintiff’s prior bankruptcy action.

3. Claims Were, or Should Have Been, Raised Previously

Under Federal Rule of Civil Procedure 13(a), counterclaims that arise out of the

same transaction or occurrence as the opposing party’s claim and do not require adding

another party over whom the court cannot acquire jurisdiction are compulsory

counterclaims. Fed. R. Civ. P. 13(a)(1). The rule provides exceptions if (a) when the

action was commenced, the claim was the subject of another pending action; or (b) the

opposing party sued on its claim by attachment or other process that did not establish

personal jurisdiction over the pleader on that claim, and the pleader does not assert any

counterclaim under Rule 13(a). Fed. R. Civ. P. 13(a)(2).

Plaintiff’s claims in the instant action were clearly compulsory counterclaims

under Rule 13(a) in No. 2:16-cv-19. All of Plaintiff’s allegations relate to the validity of

the mortgage on, and subsequent foreclosure of, the Property. Because the subject matter

of Deutsche Bank’s claims in No. 2:16-cv-19 were directly related to the validity of the

First and Second Deeds of Trust, and the subsequent Trustee’s Deed that stemmed from

the foreclosure on the Property, Plaintiff’s allegations that the mortgage and foreclosure

were illegal and invalid were necessary counterclaims that arose out of the same

transaction or occurrence. Moreover, Plaintiff would not have needed to add another

party over which the Court could not have acquired jurisdiction, as evidenced by the

acquisition of jurisdiction in the instant action. Finally, none of the exceptions to Rule

13(a) apply. Accordingly, Plaintiff’s claims were compulsory counterclaims in No.

2:16-cv-19, and thus, should have been raised in that action. The third element of res

judicata is met as to No. 2:16-cv-19.

Additionally, bankruptcy courts have original jurisdiction over all claims arising

under the Bankruptcy Code, 28 U.S.C. § 1334(b), and such “core” proceedings either

invoke a substantive right created by federal bankruptcy law or could not exist outside of

the bankruptcy. Browning v. Levy, 283 F.3d 761, 773 (6th Cir. 2002) (quoting Sanders

Confectionary Prods., Inc., 973 F.2d at 483). However, even though a bankruptcy court

does not have jurisdiction to reach a final decision on a non-core claim, it nevertheless,

“may hear a proceeding that is not a core proceeding but that is otherwise related to a

case under title 11,” and, in such situation, shall “submit proposed findings of fact and

conclusions of law to the district court, and any final order or judgment shall be entered

by the judge.” Browning, 283 F.3d at 773 (quoting 28 U.S.C. § 157(c)(1)) (internal

quotation marks omitted). Thus, res judicata may apply to a non-core claim, even though

the claim could not have been finally adjudicated by the bankruptcy court. Id. A claim is

“related to” the bankruptcy proceeding if “the outcome of that proceeding could

conceivably have any effect on the estate being administered in bankruptcy.” Id.

(quoting Sanders Confectionary, 973 F.2d at 482). Plaintiff clearly could have, and

indeed did, raise the instant claims as non-core claims in her bankruptcy proceeding.

Nearly all of Plaintiff’s instant claims were raised, in some manner, in her motions

seeking disclosures during the pendency of her bankruptcy proceeding, each of which the

bankruptcy court denied. Because Plaintiff could have, and indeed did, raise these claims

in her bankruptcy proceeding, the third element of res judicata is present as to the

underlying bankruptcy proceeding.

4. Identity of Claims is Present

The identity of claims element “is satisfied if ‘the claims arose out of the same

transaction or series of transactions” or if the “claims arose out of the same core of

operative facts.” Browning, 283 F.3d at 773-74 (internal quotation marks omitted). As

the Court previously explained, Plaintiff’s instant claims stem out of the mortgage and

subsequent foreclosure on the Property, which was also the subject of No. 2:16-cv-19,

and the subject of Deutsche Bank’s motion for relief from the stay provisions in

Plaintiff’s bankruptcy action. Because the claims all arose out of the same core of

operative facts, the final element of res judicata is present as to both No. 2:16-cv-19 and

the bankruptcy proceeding.

5. Concealment of Claims

Plaintiff alleges that res judicata should not apply because Defendants wrongfully

concealed the issues at hand. The Sixth Circuit has addressed claims of “wrongful

concealment” in the res judicata context with reference to the standards for “fraudulent

concealment” in the statute of limitations context. Browning, 283 F.3d at 770. To invoke

the doctrine of fraudulent concealment, a Plaintiff must show “affirmative concealment”

and “mere silence or unwillingness to divulge wrongful activities is not sufficient.” Id.

(citing Helmbright v. Martins Ferry, No. 94-4089, 1995 WL 445730, at *1 (6th Cir.

1995)).

In the instant case, Plaintiff’s allegations that Defendants have attempted to

conceal the claims she presently raises do not meet this standard. Plaintiff has made no

specific allegations of affirmative concealment on the part of Defendants. Rather,

Plaintiff’s allegations essentially contend, in a generalized fashion, that Defendants failed

to disclose their subprime mortgage scheme to her. This is precisely the type of “mere

silence or unwillingness to divulge” that cannot suffice to invoke the wrongful

concealment defense to res judicata. Moreover, the record is clear that Plaintiff did in

fact learn of her claims, at least by the time of her bankruptcy proceeding, as she raised

many of the same allegations before the bankruptcy court. Accordingly, the Court

concludes that Plaintiff’s claims are not saved from the doctrine of res judicata by her

allegation of wrongful concealment.

6. Conclusion

In sum, each of the elements of res judicata is present as to both No. 2:16-cv-19

and Plaintiff’s previous bankruptcy proceeding. Moreover, the doctrine of wrongful

concealment does not save Plaintiff’s claims. Accordingly, the Court finds that all of

Plaintiff’s instant claims are barred by the doctrine of res judicata, and the case will be

dismiss as to Defendants Chase, Deutsche Bank, and Select Portfolio Services.

ii. Failure To State a Claim

In the alternative, the Court also finds that Plaintiff’s complaint is due to be

dismissed for failure to state a claim on which relief can be granted. Under Federal Rule

of Civil Procedure 9(b), if a plaintiff alleges fraud or mistake, she “must state with

particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). The

Sixth Circuit has stated that Rule 9(b) requires a plaintiff to “allege the time, place, and

content of the alleged misrepresentations on which he or she relied; the fraudulent

scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud.”

Sanderson v. HCA-The Healthcare Co., 447 F.3d 873, 877 (6th Cir. 2006) (quoting

Yuhasz, 341 F.3d at 563)) (internal quotation marks omitted). In other words, Rule 9(b)

requires a Plaintiff specify the “who, what, when, where, and how” of the alleged fraud.

Id. Rule 9(b)’s heightened pleading standard applies to RICO claims that involve

allegations of fraud. Justice v. Nelson, No. 3:19-cv-185, 2019 WL 6971371, at *1 (E.D.

Tenn. Dec. 19, 2019). Because it is clear from the face of her complaint that all of

Plaintiff’s claims are based on alleged fraud, her pleading is required to meet the

heightened pleading standards of Rule 9(b). However, Plaintiff’s complaint lacks any

detail about the alleged fraud, other than nonsensical and conclusory statements.

Plaintiff’s complaint fails to even mention the circumstances of the foreclosure on her

home, which appear to be the underlying fact of her complaint. Accordingly, the Court

finds that Plaintiff’s complaint is due to be dismissed as to Defendants Chase, Deutsche

Bank, and Select Portfolio Services for failure to meet the heightened pleading standard

of Rule 9(b).

Plaintiff also fails to plead necessary elements of her purported RESPA claim. It

appears that Plaintiff attempts to assert a claim for a violation of the RESPA under

§ 2605.

A borrower can sue a servicer under § 2605 for failure to disclose whether

loan servicing rights may be transferred. Section 2605 requires that a

borrower be notified of certain loan servicing transfers and receive certain

information upon request. Subsection (e) of § 2605 specifically requires

“any servicer of a federally related mortgage loan” to respond to a

“qualified written request” (a “QWR”) from the borrower that seeks

“information relating to the servicing” of the loan.

Hutchens v. Bank of America N.A., 3:11-cv-624, 2012 WL 1618316, at *5 (E.D. Tenn.

May 9, 2012) (internal citations omitted). Only “servicers” of federally related mortgage

loans are bound by the RESPA to respond to QWRs, and failure to plead that a defendant

is a loan servicer will defeat a plaintiff’s cause of action under the RESPA, because she

has not established that liability is plausible. Id. Because Plaintiff does not assert that

any of the defendants are loan servicers, her complaint fails under the general pleading

standards of Federal Rule of Civil Procedure 8 as to any RESPA claim.

Moreover, to the extent that Plaintiff alleges that Defendants have violated various

criminal statutes, Plaintiff cannot bring criminal charges against Defendants because

criminal actions in federal courts are initiated by the United States Attorney and cannot

be brought by the Court or a pro se Plaintiff in a civil action. Copeland v. Donahue, No.

5:12CV0541, 2012 WL 6738699, at *5 (N.D. Ohio, Dec. 29, 2012) (citing 28 U.S.C.

§ 547; Fed. R. Crim. P. 7(c)).

For all these alternative reasons, Plaintiff has failed to state a claim upon which

relief can be granted, and the Court will therefore GRANT Defendants Chase, Deutsche

Bank, and Select Portfolio Services’ Motions to Dismiss [docs. 3, 14].

III. Motion to Amend

In her motion to amend, Plaintiff asserts that she attempted to file appellate papers

in the circuit court in Bristol, Tennessee, but the court clerks refused to accept the

appellate papers unless a “litigation tax” was paid. [Doc. 34]. Plaintiff contends that this

action violated her due process and equal protection rights, and she moves to add the

clerks of the Sullivan County Court as defendants in this action. [Id.].

After a responsive pleading or Rule 12(b)(6) motion has been served, a party may

move for leave to amend a complaint by leave of the Court. Fed. R. Civ. P. 15(a). Under

Rule 15(a)(2), a “court should freely give leave [to amend] when justice so requires.” Id.

The Court, however, must balance the harm to the moving party if he is not permitted to

amend against the prejudice caused to the other party if leave to amend is granted.

Foman v. Davis, 371 U.S. 178, 182 (1962). Specifically, “[a] motion to amend a

complaint should be denied if the amendment is brought in bad faith, for dilatory

purposes, results in undue delay or prejudice to the opposing party, or would be futile.”

Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995) (citation omitted). Amendment of a

complaint is futile when the proposed amendment would not permit the complaint to

survive a motion to dismiss. Miller v. Calhoun County, 408 F.3d 803, 817 (6th Cir.

2005).

“It is well established that judges are entitled to absolute judicial immunity from

suits for money damages for all actions taken in the judge’s judicial capacity, unless these

actions are taken in the complete absence of any jurisdiction.” Bush v. Rauch, 38 F.3d

842, 847 (6th Cir. 1994). This absolute judicial immunity also extends to non-judicial

offers who perform “quasi-judicial” duties. Id. This quasi-judicial immunity “extends to

those persons performing tasks so integral or intertwined with the judicial process that

these persons are considered an arm of the judicial officer who is immune.” Id. The

Supreme Court has developed a “functional” approach for determining whether an

official is entitled to absolute immunity, and the court must look to the nature of the

function performed, rather than the identity of the actor who performed it. Id. (internal

quotation marks omitted).

The court clerks’ task of mailing transcripts to indigent prisoners, so that they can

appeal their convictions, is a judicial act for purposes of quasi-judicial immunity.

Yabrough v. Garrett, 579 F. Supp. 2d 856, 860 (E.D. Mich. 2008) (citing Lyle v. Jackson,

49 F. App’x 492, 494 (6th Cir. 2002)). A court clerk’s “discretion to review documents,

interpret rules, and determine whether they comply with the procedural rules, is precisely

the kind of juridical act entitled to immunity.” Petersen v. Garett, No. 04-60196, 2007

WL 465732, at *3 (E.D. Mich. Feb. 6, 2007). Moreover, a court clerk “performs

quasi-judicial duties when he accepts and dockets filings; and is therefore immune from

suit relating to these quasi-judicial duties.” Shavers v. Liefer, No. 1:06-cv-196, 2006 WL

1360965, at *1 (W.D. Mich. May 15, 2006) (citing Bradley v. United States, 84 F. App’x

492, 493 (6th Cir. 2003)).

In light of this case law, the Court concludes that the Sullivan County court clerks

perform quasi-judicial duties in determining whether documents filed in the court comply

with procedural rules, including rules relating to the payment of fees. Because such is a

quasi-judicial duty, the Sullivan County court clerks are entitled to absolute quasi-judicial

immunity from suit in this regard. Accordingly, any amendment of Plaintiff’s complaint

to add her proposed claims against the Sullivan County court clerks would be futile, and

the Court will accordingly DENY the motion to amend [doc. 34].

IV. Miscellaneous Motions

Several other motions filed by Plaintiff remain pending before the Court.

Although these motions are now moot as to Defendants Chase, Deutsche Bank, and

Select Portfolio Services, based on the Court’s grant of these Defendants’ motions to

dismiss, the Court will nevertheless address these motions as they relate to the remaining

Defendant, Premier Mortgage Funding.

First, Plaintiff moves for a temporary restraining order (“TRO”) against the

Defendants, asserting that they were pursuing “POLICE ACTION against Your Plaintiff

to have Her put in the Street and Made Homeless,” which she asserted would cause her

irreparable harm. [Doc. 9 at 3]. Plaintiff later states that Defendants should be prevented

from evicting her from her family home. [Id. at 4]. The Court will DENY Plaintiff’s

request for a TRO. First, according to more recent filings, it appears that Plaintiff has

already been evicted from the Property, and thus, the Court has no power to restrain

Defendant Premier Mortgage Funding from seeking such eviction. Moreover, Federal

Rule of Civil Procedure 65 only permits the Court to issue a temporary restraining order

if “specific facts in the affidavit or a verified complaint clearly show that immediate and

irreparable injury, loss, or damage will result to the movant before the adverse party can

be heard in opposition[.]” Fed. R. Civ. P. 65(b)(1) (emphasis added). As noted

previously, neither Plaintiff’s complaint, nor her motion for a TRO, contain specific facts,

but rather, contain generalized and conclusory allegations against all Defendants

collectively. Additionally, Plaintiff’s eviction from her home, after foreclosure, is not the

type of irreparable injury that a TRO is intended to prevent. Accordingly, a TRO is not

warranted, and the Court will DENY the motion [doc. 9].

In a separate motion, Plaintiff seeks a TRO and a permanent injunction on the

same grounds as her previous motion. The Court will DENY Plaintiff’s request for a

TRO in the second motion for the same grounds as it will deny the first motion.

Additionally, the Court concludes that Plaintiff intended to request a “preliminary

injunction” rather than a “permanent injunction,” as a permanent injunction would only

be applicable after a ruling on the merits of the case. The first element a Plaintiff must

establish in seeking a preliminary injunction is that there is a strong likelihood that she

will succeed on the merits. Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000). For

the same reasons explained above, Plaintiff has not shown any likelihood of success on

the merits in her case against Defendant Premier Mortgage Funding. Accordingly, the

Court will DENY Plaintiff’s motion for a TRO and preliminary injunction [doc. 10].

Finally, Plaintiff moves for the Court to recognize service on Defendants, take

notice of facts, and order discovery in this matter. [Doc. 25]. Because the remaining

defendant, Premier Mortgage Funding, appears to have been properly served at this

juncture, the Court will DENY Plaintiff’s request to recognize service as moot. The

Court will further DENY Plaintiff’s request to take judicial notice of facts, finding that

such would not be proper at this point in the litigation. Furthermore, the Court will

DENY Plaintiff’s request to order discovery. At this stage in the litigation, Plaintiff has

filed an application for entry of a clerk’s default against Premier Mortgage Funding,

based on its failure to respond to the complaint within the time outlined by the Federal

Rules of Civil Procedure. Should Defendant Premier Mortgage Funding make an

appearance in this matter, discovery should proceed as normal under the Court’s

scheduling order. However, a separate order requiring Premier Mortgage Funding to

engage in discovery at this stage in the litigation would merely create confusion.

Accordingly, the Court will DENY Plaintiff’s motion [doc. 25].

V. Conclusion

For the reasons stated herein, Plaintiff’s motions for recusal [docs. 59, 66] will be

DENIED, Plaintiff’s motion to amend [doc. 34] will be DENIED, Plaintiff’s motions for

a TRO or preliminary injunction [docs. 9, 10] will be DENIED, Plaintiff’s motion to

recognize service [doc. 25] will be DENIED, and Defendants’ motions to dismiss [docs.

3, 14] will be GRANTED. This matter will be dismissed as to Defendants Chase,

Deutsche Bank, and Select Portfolio Services. An order consistent with this opinion will

follow.

s/ Leon Jordan

United States District Judge