Collins v. Wells Fargo Bank N.A.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

VIRGIL H. COLLINS, ) CASE NO. 1:23-cv-164

)

Plaintiff, ) JUDGE BRIDGET MEEHAN BRENNAN

)

v. )

)

WELLS FARGO BANK, N.A., ) MEMORANDUM OPINION

TRUSTEE FOR CARRINGTON ) AND ORDER

MORTGAGE LOAN TRUST, et al., )

)

Defendants. )

Pro se plaintiff Virgil Collins’s (“Plaintiff” or “Collins”) filed motions with the Court

seeking the following relief: a change of judge; a “plain error” correction of the Court’s

jurisdiction decision pursuant to Rule 60(b)(6); clarification; reconsideration; to vacate or modify

the Court’s order; leave to amend the complaint; and a written opinion. (Docs. 29, 30.)

Defendants’ omnibus opposition was timely submitted. (Doc. 31.)

For the following reasons, Plaintiff’s motions are DENIED.

I. BACKGROUND

On January 27, 2023, Plaintiff named Wells Fargo Bank N.A. (“Wells Fargo”),

Carrington Mortgage Loan Trust (“Carrington”), New Century Mortgage Corporation and New

Century Liquidating Trust (collectively “NCMC”), and Joanne Brown as defendants in a multi-

count complaint alleging, among other things, fraud, Truth in Lending violations, and an

entitlement to injunctive and declaratory relief. (Doc. 1.) The factual background of Plaintiff’s

complaint is summarized in the Court’s May 5, 2023 Memorandum Opinion and Order, which

the Court reincorporates in this decision. (Doc. 19 at 292–96.)1

In that Order, the Court did not consider Defendants’ motions to dismiss (Docs. 9, 18)

because it lacked subject matter jurisdiction to grant relief from a state court judgment. (See

Doc. 19 at 292, 297.) The Court dismissed the action pursuant to Apple v. Glenn, 183 F.3d 477,

479 (6th Cir. 1999) without prejudice to Plaintiff bringing his claims in state court. (See id. at

300.)

On May 23, 2023, Plaintiff filed a combined motion for leave to file a motion for

reconsideration and a motion for extension of time to file an appeal. (Doc. 21.) Carrington and

Wells Fargo opposed this motion on June 6, 2023. (Doc. 22.) On June 23, 2023, the Court

denied Plaintiff’s motion for reconsideration and instructed Plaintiff to file his notice of appeal

within thirty days. (Doc. 23.) Collins filed a notice of appeal to the Sixth Circuit on July 19,

2023. (Doc. 24.) On March 29, 2024, the Sixth Circuit affirmed this Court’s judgment. Collins

v. Wells Fargo Bank, N.A., No. 23-3603, 2024 WL 3493330, 2024 U.S. App. LEXIS 7513 (6th

Cir. Mar. 29, 2024) (“Collins II”).

On May 8, 2024, Plaintiff filed a “motion for a change of judge in attached Fed. R. Civ.

P. 60(b) complaint.” (Doc. 29.) On the same day, Plaintiff also filed an “Emergency Motion for

a civil rule 60(B)(6) ‘plain error’ correction in its jurisdiction, Motion for clarification, Motion to

reconsider, Motion to vacate or modify its order, Motion to amend complaint to a civil rights

complaint, [and] Motion for a written opinion.” (Doc. 30.) On May 21, 2024, Carrington and

1 For ease and consistency, record citations are to the electronically stamped CM/ECF document

and PageID# rather than any internal pagination.

Wells Fargo opposed Collins’s emergency motion, but did not respond to his motion for a

change of judge. (Doc. 31.)2 Plaintiff has not replied and the deadline for doing so has passed.

II. ANALYSIS

A. Change of Judge

In his motion for a change of judge, Collins argues this Court’s decision to dismiss his

amended complaint sua sponte was “based on an illegal document.” (Doc. 29 at 351.) Plaintiff

contends the Court’s “abuse of discretion caused excessive time and money to properly litigate

[his] case” and he “respectfully request[s] that this court assigns a different judge to review the

attached Civil Rule 60(B) Complaint.” (Id.)

The Court construes Plaintiff’s motion for a change of judge as a motion to disqualify

under 28 U.S.C. § 144, or § 455. See Consol. Rail Corp. v. Yashinksy, 170 F.3d 591, 597 (6th

Cir. 1999) (“28 U.S.C. §§ 144 and 455 govern when a judge should recuse herself.”). “[A] judge

is presumed to be impartial, and the party seeking disqualification ‘bears the substantial burden

of proving otherwise.’” Huth v. Hubble, No. 5:14-cv-1215, 2016 WL 6610808, at *2, 2016 U.S.

Dist. LEXIS 156863, at *7 (N.D. Ohio Feb. 23, 2016) (quoting Scott v. Metro. Health Corp., 234

Fed. App’x 341, 352 (6th Cir. 2008)).

The judge does not bear the burden of proving he or she is impartial. See id. Rather, the

movant bears the burden of “convincing the court that a reasonable person would find that the

bias exists.” United States v. Hoffa, 382 F.2d 856, 861 (6th Cir. 1967) (citing Rhodes v.

McDannel, 945 F.2d 117, 120 (6th Cir. 1991)). “Disqualification under both Sections 144 and

455 must be predicated ‘upon extrajudicial conduct rather than judicial conduct’ and upon ‘a

personal bias as distinguished from a judicial one, arising out of the judge’s background and

2 Defendants Joanne Brown and NCMC did not oppose these motions.

association and not from the judge’s view of the law.’” Yashinksy, 170 F.3d at 597 (internal

citations omitted). Without any extrajudicial basis for recusal, a judge may not recuse him or

herself. See Hoffa, 382 F.2d at 861 (“There is an obligation upon a judge not to recuse himself

when there is no occasion.”).

Collins has not presented a basis for disqualification. The only conduct discussed in his

motion concerns the Court’s prior ruling. (See Doc. 29 at 351.) Accordingly, Plaintiff has not

met his burden, and this motion is denied.

B. Rule 60(b)(6)

Plaintiff’s motion seeks relief under Federal Rule of Civil Procedure 60(b)(6). (Doc. 30

at 353–55.) Plaintiff requests the Court “grant his motion for a Civil Rule 60(B) reversal based

on the mistake by the District Court judge[.]” (Id. at 355.)

At this point, this Court and the Sixth Circuit have both assessed whether Plaintiff is

entitled to relief under Rule 60. In the first instance, the Court determined it lacked jurisdiction

to grant relief. (Doc. 19). Upon reconsideration, the Court found it did not err in dismissing this

action. (Doc. 23.) On appeal, the Sixth Circuit found this Court “correctly concluded that

Rooker-Feldman bars Collins’s claims for relief from the state-court foreclosure proceedings.”

Collins II, 2024 WL 3493330, at *3, 2024 U.S. App. LEXIS 7513, at *8–9. The Sixth Circuit

explained “[g]ranting Collins’s requested relief would amount to overturning the state court’s

judgment.” Id.3

Plaintiff repeats the same arguments here. (Compare Doc. 21 at 302–04 with Doc. 30 at

353–55.) His only new assertion is that “the District Court’s error was transferred to the 6th

3 Plaintiff does not seek relief for his Truth in Lending Act or Home Ownership and Equity

Protection Act claims. The Sixth Circuit held these claims “likewise fail” because they are

untimely. Collins II, 2024 WL 3493330, at *4, 2024 U.S. App. LEXIS 7513 at *11–12.

Circuit Court of Appeals.” (Doc. 30 at 354.) This argument in insufficient to warrant relief

under Rule 60(b). Rule 60(b) does not allow a federal court to grant relief from a judgment it did

not issue.

C. Motion for Clarification

Plaintiff’s motion for clarification cites case law from the Eighth Circuit on the legal

effect of an amended complaint. (See Doc. 30 at 355–56 (citing Thomas v. United Steelworkers

Loc. 1938, 743 F.3d 1134, 1139 (8th Cir. 2014)).) To Plaintiff, the “Original Complaint was

superseded, and now has no legal effect in law.” (Id. at 356.) He therefore “moves this court to

clarify why these parameters do not apply to his case” and whether the Court is permitted to

“abandon de novo review” when considering res judicata and the Rooker-Feldman doctrine. (Id.

at 357.) He also asks the Court to “clarify whether a court can base their final decision by using

a superseded Complaint with a different caption[.]” (Id.)

The Federal Rules of Civil Procedure do not provide for a motion for clarification. That

said, the Sixth Circuit has recognized such motions to “clarify the scope” of a previous order.4

United States v. Riley, 609 Fed. App’x 837, 841 n.2 (6th Cir. 2015) (noting if a party “were

concerned only with clarifying the scope of the district court’s Order, it could have filed a

motion for clarification with the district court”); see also Dixit v. Smith, No. 2:21-cv-2602, 2023

WL 6367666, at *1, 2023 U.S. Dist. LEXIS 176771, at *2 (W.D. Tenn. Sept. 29, 2023) (“Case

law holds that the general purpose of a motion for clarification is to explain or clarify something

4 In other circumstances, the Sixth Circuit affirmed a district court’s decision to construe a

motion to clarify “as one seeking relief from judgment pursuant to Rule 60(b) of the Federal

Rules of Civil Procedure.” In re Walter, 282 F.3d 434, 439 (6th Cir. 2022). The Court

addressed Plaintiff’s arguments in support of his Rule 60(b) motion and found them to be

insufficient to grant relief from judgment. To the extent that Collins’s motion for clarification

seeks relief under Rule 60(b), this motion is denied for the same reasons.

ambiguous or vague in the court’s order or judgment.”) (internal quotation marks omitted);

United States v. Troutman, No. 1:11-cr-472, 2022 WL 326523, at *1, 2022 U.S. Dist. LEXIS

20069, at *2 (N.D. Ohio Feb. 3, 2022) (“[A] motion for clarification is properly used to clarify

the scope of a district court’s prior order.”).

Collins’s request for clarification does not seek to clarify the scope of this Court’s or the

Sixth Circuit’s orders. Moreover, nothing in these orders is ambiguous or vague. Instead,

Plaintiff aims to relitigate arguments both the Sixth Circuit and this Court have rejected. See

Union Home Mortg. Corp. v. Cromer, No. 4:21-cv-385, 2022 WL 5174149, at *1, 2022 U.S.

Dist. LEXIS 184481, at *2 (N.D. Ohio Mar. 16, 2022) (“The Court denied Defendants’ request

for clarification because [] it was ‘merely a motion for reconsideration and an attempt to

relitigate issues previously decided by the Court[.]’”). Thus, the motion for clarification is

denied.

D. Motion for Reconsideration

Plaintiff argues a “legal framework known as ROGS”5 presents exceptions to the Rooker-

Feldman and res judicata doctrines. (Doc. 30 at 357–58.) In sum, under United States v.

Throckmorton, 98 U.S. 61 (1878) (discussing exceptions to res judicata) and McCormick v.

Braverman, 451 F.3d, 382, 393 (6th Cir. 2006) (discussing exceptions to the Rooker-Feldman

doctrine), the Court has jurisdiction over Collins’s case. (Doc. 30 at 361–62.)

Courts “evaluate a motion to reconsider as a motion to alter or amend judgment pursuant

to Federal Rule of Civil Procedure 59(e).” United States v. Thompson, 580 F.Supp.3d 503, 505

5 According to Plaintiff, ROGS “is an acronym for Reasonable Person Standard (R): Ordinary

Care (O): Government Immunity (G): and Statute of Limitations (S).” (Doc. 30 at 357.) Though

his motion discusses ROGS at length, Plaintiff has not cited an authority following this

framework.

(N.D. Ohio 2022) (citing Moody v. Pepsi-Cola Metro. Bottling Co., 915 F.2d 201, 206 (6th Cir.

1990)). Three situations justify altering or amending judgment under Rule 59(e): (1)

accommodating an intervening change in controlling law; (2) accounting for new evidence not

available at trial; or (3) correcting a clear error of law or to prevent a manifest injustice.

Sherwood v. Royal Ins. Co. of Am., 290 F. Supp. 2d 856, 858 (N.D. Ohio Nov. 10, 2003).

Like his previous motion, Collins does not argue there was an intervening change in

controlling law, nor does he point to new evidence not available at trial.6 (See Doc. 30 at 357–

62.) Instead, his motion to reconsider is simply another attempt to relitigate matters already

decided. The Court considered and rejected almost identical arguments raised in Collins’s

previous motion to reconsider. (Compare Doc. 21 at 303 with Doc. 30 at 361 (each citing

McCormick, 451 F.3d at 393); see also Doc. 23 at 323 (“Plaintiff claims res judicata does not

apply because he was denied due process during the foreclosure action. This argument is not

well-taken.”); Doc. 23 at 323 (“The Court did not commit a clear error of law in determining that

the Rooker-Feldman Doctrine bars this Court from overturning or granting relief from a state

court judgment.”)). Collins II, 2024 WL 3493330, at *4, 2024 U.S. App. LEXIS 7513, at *10

(“[T]he court did not err in sua sponte applying Rooker-Feldman because subject-matter

jurisdiction was clearly lacking as to those claims.”).

6 Plaintiff alludes to evidence “that has now surfaced that shows that the Trial Court Judge was

actively involved with the scheme to deny Collins access to court proceedings, when she became

aware of Collins’s attempt to have NCMC enjoined to the case.” (Doc. 30 at 366.) Still,

Plaintiff’s pending motions merely repeat his attacks on the state court’s adjudication of his case

without discussing new evidence. (See id. at 360.) As the Sixth Circuit noted in its opinion,

“[r]ather than collusion, the most plausible explanation for NCMC’s absence in state court is

that, according to Collins’s pleadings, NCMC filed for bankruptcy and went out of business a

decade before Wells Fargo filed the foreclosure action.” Collins II, 2024 WL 3493330, at *4,

2024 U.S. App. LEXIS 7513, at *11.

Plaintiff has not set forth facts or law of a strongly convincing nature to induce the Court

to reverse its prior decisions. Equal Emp’t Opportunity Comm’n v. Dolgencorp, LLC, 277

F.Supp.3d 932, 941 (E.D. Tenn. 2017). As a result, Plaintiff has not met his burden of showing

that he is entitled to extraordinary relief under Rule 59(e). See Thompson, 580 F.Supp.3d at 505

(“A motion to alter or amend a judgment is ‘extraordinary and is seldom granted because it

contradicts notions of finality and repose.’”).

E. Motion to Vacate or Modify

In support of his motion to vacate or modify the Court’s order, Collins repeats his

arguments about the ROGS framework. (Doc. 30 at 362–65.) Plaintiff does not specify how the

Court should modify its order, nor does he identify which Federal Rule of Civil Procedure serves

as the basis for his motion. Instead, Collins devotes most of this motion to explaining a “catch

and kill” scheme by his “rogue attorney.” (Id. at 364–65.)

To the extent this motion seeks to vacate or modify this Court’s order under Rules 59 and

60, this motion is denied for the same reasons as Plaintiff’s Rule 59(e) and 60(b) motions. See

Smith v. Hudson, 600 F.2d 60, 62 (6th Cir. 1979) (“[A] motion which asks a court to vacate and

reconsider, or even to reverse its prior holding, may properly be treated under rule 59(e) as a

motion to alter or amend a judgment.”).

F. Motion to Amend

Collins moves for leave to amend his complaint to include “a civil rights fourteenth

amendment complaint.” (Doc. 30 at 365–66.) He seeks to add a claim against an Ohio state

court judge who allegedly “has a history of wrongfully issuing Summary Judgment” and was

“actively involved with the scheme to deny Collins access to court proceedings.” (Id. at 366.)

The Sixth Circuit has made clear that “[a]lthough leave to amend a complaint should be

granted liberally when the motion is made pretrial, different considerations apply to motions

filed after dismissal.” Russell v. GTE Gov’t Sys. Corp., 141 Fed. App’x 429, 437 (6th Cir. 2005)

(quoting In re General Motors Corp. Anti Lock Brake Prods. Liab. Litig., 174 F.R.D. 444, 446

(E.D. Mo. 1997), aff’d, 172 F.3d 623 (8th Cir. 1999)). “Amendments after judgment should be

allowed only if the standards under Rule 59(e) or 60(b) are met.” Id. (citing Twohy v. First Nat’l

Bank of Chicago, 758 F.2d 1185, 1196 (7th Cir. 1985) and Oleson v. United States, 27 Fed.

App’x 566, 570 (6th Cir. 2001)).

As discussed above, Collins has not shown he meets the Rule 59(e) or Rule 60(b)

standards. Moreover, his motion is untimely as the foreclosure proceedings concluded years ago.

(Doc. 19 at 294–95.) See also Russell, 141 Fed. App’x at 437 (denying a plaintiff’s motion to

amend a complaint as untimely). Plaintiff’s motion to amend his complaint is denied.

G. Motion for a Written Opinion

Lastly, Collins moves for a written opinion. He concedes he could not “locate relevant

Rules in the Ohio Federal Rules of Appellant Procedure” and instead “is basing his motion on a

Florida Rule of Procedure 9.330.” (Doc. 30 at 366.) It appears this request aims to obtain

answers to questions about the Court’s dismissal of Plaintiff’s complaint sua sponte and the

absence of certain Supreme Court or Sixth Circuit cases. (Id. at 367–69.) Defendants highlight

Plaintiff “has already received numerous written opinions from this court and the Sixth Circuit.”

(Doc. 31 at 385.)7

7 Defendants also argue because the Court is sitting in diversity, it “must apply the substantive

law of the state in which the action is pending—Ohio.” (Doc. 31 at 385 (citing Degussa

Admixtures, Inc. v. Burnett, 277 Fed. App’x 530, 532 (6th Cir. 2008)).) Both Plaintiff’s original

and amended complaints purport to “bring[] this case pursuant to the federal question

jurisdiction.” (Doc. 1 at 2; Doc. 12 at 195.)

Plaintiff has benefitted from multiple written opinions by both this Court and the Sixth

Circuit, and he is now receiving the benefit of this opinion as well. (See Docs. 19, 23.) See also

Collins IT, 2024 WL 3493330, 2024 U.S. App. LEXIS 7513. Plaintiffs request for an opinion

that addresses specific questions as he has presented them is not cognizable under the Federal

Rules of Civil Procedure and lacks merit. This motion is denied.

I. CONCLUSION

For the reasons stated herein, Plaintiff's motions (Docs. 29, 30) are DENIED.

IT IS SO ORDERED.

Date: February 19, 2025 ¢

BRIDGET MEEHANBRENNAN

UNITED STATES DISTRICT JUDGE

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