Mitchell v. KeyBank National Association

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LOWANDA L. MITCHELL,

Plaintiff,

Case No. 2:25-cv-310

vs. Judge Douglas R. Cole

Magistrate Judge Elizabeth P. Deavers

KEYBANK NATIONAL ASSOCIATION,

et al.,

Defendants.

INITIAL SCREEN REPORT AND RECOMMENDATION AND ORDER

Plaintiff, Lowanda L. Mitchell, an Ohio resident proceeding here pro se, was granted

leave to proceed in forma pauperis by previous Order of the Court. (ECF No. 3.)

This matter is now before the Undersigned to undertake the initial screen required by law

to identify cognizable claims and to recommend dismissal of Plaintiff’s Complaint, or any

portion of it, which is frivolous, malicious, fails to state a claim upon which relief may be

granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §

1915A(a); 28 U.S.C. § 1915(e)(2). Having completed the initial screen, the Undersigned

RECOMMENDS that Plaintiff be allowed to proceed on her claims against KeyBank National

Association but that all other claims be DISMISSED in their entirety.

I.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that--

* * *

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

1Formerly 28 U.S.C. § 1915(d).

of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court

holds pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’”

Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April

1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however,

has limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v.

Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591,

594 (6th Cir. 1989)).

II.

Construed very broadly, Plaintiff’s Complaint appears to be comprised of three separate

documents, a 26-page “Original Complaint” naming KeyBank National Association as a

Defendant (ECF No. 4),2 a second “Original Complaint” filed April 16, 2025 also naming

2 In the first “Original Complaint,” Plaintiff suggests that she may be intending to name Key

Bank National Home Loan Trust 2002-6 as a Defendant. (See, e.g., ECF No. 4 at III.

PARTIES.) Any such entity, to the extent Plaintiff considers it to be distinct from KeyBank

National Association, however, is not named as a Defendant in the other documents construed

here as part of her Complaint. Further, the first “Original Complaint” refers throughout to the

KeyBank National Association as a Defendant (ECF No. 5), and a document attached to the

“Original Complaint and incorporated into the second “Original Complaint” which is itself titled

as a “Complaint for Fraud, Unjust Enrichment, Fraud Upon the Court, and Monetary Damages.”

(ECF Nos. 4-1; ECF No. 5 at 9-15.) This third document names as Defendants KeyBank NA,

Franklin County Recorder’s Office, Attorneys Jessica M. Johnson and Tamara Gurchik, Judges

Colleen O’Donnell and Andria Noble, “other Unknown Defendants,” Autumn Frandsen, Cindy

Windsor, Brandon Cox Hendrix, and the “Franklin County Treasurer.” (Id.) From the Court’s

experience, the first two filings are styled as if prepared by counsel while the duplicate filings are

more consistent with typical pro se filings.

Between all filings, Plaintiff’s second “Original Complaint” contains the most

information shedding light on the alleged factual background for Plaintiff’s claims. In short,

Plaintiff’s claims arise from a state court foreclosure action, culminating in a Sheriff’s Sale on

March 10, 20233, and the loss of Plaintiff’s home of more than twenty years. The factual

background as alleged by Plaintiff, and taken as true for purposes of this screening, is set forth

here verbatim:

5. On or about July 8, 2002, Plaintiff executed a mortgage and promissory note with

KeyBank National Association for the subject property at 1224 E. 25th Ave,

singular “Defendant” and Plaintiff has not submitted service forms for any such entity.

Additionally, the state court’s docket sheet indicates that the Plaintiff in the underlying

foreclosure action was KeyBank, N.A. See KeyBank, N.A. v. Lowanda Mitchell, et al., Case No.

22 CVE-05-3404, filed in the Franklin County Court of Common Pleas on May 19, 2022. The

state court’s docket and filings are available at

https://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline. The Court takes judicial notice of the

state court’s docket sheet. Palmer v. Commonwealth Credit Union, Inc., No. 3:24-CV-295-RGJ,

2024 WL 4906504, at *1 (W.D. Ky. Nov. 27, 2024) (collecting cases). For these reasons, for

purposes of this Initial Screen Report and Recommendation and Order, the Undersigned does not

construe Plaintiff’s Complaint to include Key Bank National Home Loan Trust 2002-6 as a

Defendant.

3 See KeyBank, N.A. v. Lowanda Mitchell, et al., Case No. 22 CVE-05-3404.

Columbus, Ohio 43211. This agreement constituted an unenforceable adhesion

contract, drafted exclusively by the Defendant and presented to Plaintiff on a take-

it-or- leave-it basis without negotiation or meaningful opportunity for review. The

terms disproportionately favored the Defendant and placed all risk solely upon the

Plaintiff, while falsely conveying fairness and legality on the face of the document.

Plaintiff was misled regarding her rights and obligations, and key information was

either omitted o misrepresented. The initial mortgage terms were purported to be|

conventional and fair; however, material aspects of the agreement were concealed

or misrepresented.

6. The mortgage was subsequently pooled and securitized into the Key Bank

National Home Loan Trust 2002-6. Plaintiff was never informed of the

securitization process or the implications of her loan being transferred into a trust.

The endorsement, assignment, and negotiation of the note failed to comply with the

requirements of the Uniform Commercial Code and applicable Ohio state laws.

There was no proper chain of title or legal standing to enforce the mortgage note.

A licensed private investigator, serving as a witness in fact, conducted an

independent audit of the Plaintiffs mortgage] and note. This audit confirmed

numerous violations, irregularities, and evidence of misrepresentation that support

Plaintiffs claims. The findings include improper| endorsements, defective

assignments, broken chain of title, and procedural deficiencies consistent with

fraudulent foreclosure practices.

7. Defendant falsely represented to the Court that it had legal standing to foreclose

on| Plaintiff’s property. It lacked possession of the original note, proper

endorsement, and a valid assignment of the mortgage. The reliance on robo-signed

documents and| unverified assignments further misled the Court and prejudiced the

Plaintiff. Publicly available court records reflect that KeyBank National

Association has been a named defendant in numerous legal actions across multiple

jurisdictions, many of which involved allegations of improper foreclosure,

predatory servicing, deceptive lending practices, and violations of federal lending

laws. These cases show a pattern of misconduct and support Plaintiffs position that

Defendant's actions in this case were not isolated incidents, but rather part of a

broader institutional problem.

8. Defendant initiated foreclosure proceedings and Plaintiff was forcibly removed

from her home based on misrepresentations to the court and fraudulent documents.

The foreclosure proceedings were carried out despite Plaintiffs consistent

objections and| without a legitimate demonstration of Defendant's lawful interest in

the mortgage note.

9. The Borrower Covenant within the mortgage contains false and misleading

statements regarding the rights and obligations of the parties. Specifically, the

Covenant includes language stating that the 'Borrower is lawfully seised of the

estate hereby conveyed and has the right to grant and convey the Property.’ This

clause misrepresents the true nature of the transaction by suggesting that the

Plaintiff voluntarily and knowingly conveyed the estate under valid terms and

conditions. In reality, the Plaintiff was misled into signing a contract she did not

fully understand, without full disclosure or negotiation, under false assurances of

fairness and legitimacy. The language in the Covenant falsely suggests lawful

authority and enforceability, when the underlying mortgage contract was an

unconscionable adhesion agreement. Specifically, the Plaintiff had never possessed

the property prior to the execution of the mortgage contract and would not have

taken possession absent signing the agreement. Therefore, the assertion in the

Borrower Covenant that the Plaintiff was 'lawfully seised' of the estate and had the

right to convey is a legal and factual misrepresentation. It falsely implies prior

ownership and legal authority that did not exist at the time of execution. This clause

contributed to the fraudulent appearance of legitimacy and was relied upon by the

Defendant to unlawfully assert rights it did not possess.

10. Plaintiff was denied clear, accurate disclosures as required under the Truth in

Lending Act (TILA), subjected to unlawful and deceptive servicing practices under

the Real Estate Settlement Procedures Act (RESPA), and consistently misled about

the identity of the the party in interest. The Defendant failed to respond to Qualified

Written Requests, failed to provide accurate payoff information, and engaged in

predatory servicing practices that exacerbated Plaintiffs financial hardship and

undermined her ability to preserve her home.

(ECF No. 5.)

Between both “Original Complaints,” Plaintiff asserts the following claims against

KeyBank: Breach of Contract, Fraud in the Factum, Breach of Fiduciary under Ohio Trust Law,

Violation of the Ohio Uniform Commercial Code, Violation of the Truth in Lending Act,

Violation of the Consumer Credit Protection Act, Violations of MERS Procedures, Securities

Fraud under the Ohio Securities Act, Violations of the Dodd-Frank Act, Violation of the Real

Estate Settlement Procedures Act, Violation of the Fair Debt Collection Practices Act, Breach of

the Covenant of Good Faith and Fair Dealing, Violation of the Ohio Civil RICO Statute.

Plaintiff also asserts what appears to be a claim for a “Pattern of Misconduct” by KeyBank,

Fraudulent Misrepresentation in Borrower Covenant, Lack of Standing and Wrongful

Foreclosure, and Restitution. In both “Original Complaints,” by way of relief, Plaintiff seeks a

declaration that KeyBank lacked standing, injunctive relief, rescission of the mortgage, equitable

relief, and various forms of monetary damages.

In her duplicate additional filings, Plaintiff further alleges the following. The

Franklin County Recorder’s Office improperly recorded Plaintiff’s name and the parcel number,

facilitating the wrongful foreclosure. The deed was fraudulently changed, KeyBank and

unknown insurers filed false insurance claims on her foreclosed property without valid proof of

loss, and she was wrongfully assessed taxes and forced to pay unearned interest without lawful

justification. Further, she alleges that Defendant Judges O’Donnell and Andria Noble presided

over two versions of the same case with different case numbers, violating Plaintiff’s due process

rights. Finally, she asserts that Defendants Johnson and Gurchik, both attorneys, knowingly

participated in fraudulent court proceedings. Among other relief, Plaintiff requests that this

Court declare the foreclosure proceedings void due to fraud, immediately reverse the wrongful

foreclosure, invalidate fraudulent property records at the Franklin County Recorder’s Office,

investigate and prosecute KeyBank for insurance fraud, and award her monetary damages.

IV.

At this stage in the proceedings, without the benefit of briefing, the Undersigned

concludes that Plaintiff’s claims against KeyBank may proceed. The Undersigned expresses no

opinion as to the merits of those claims. For the following reasons, however, the Undersigned

RECOMMENDS that Plaintiff’s remaining claims be DISMISSED in their entirety.

A. Plaintiff’s Claims against Judges and Attorneys

Plaintiff names Judges O’Donnell and Noble as Defendants, alleging that having two

different judges preside over her foreclosure action violated her due process rights and

constituted a fraud upon the Court. Plaintiff also names as Defendants attorneys Johnson and

Gurchik, presumably counsel for KeyBank in the state court foreclosure action, alleging their

participation in fraudulent court proceedings. These claims fail for many reasons.

First and fundamentally, Plaintiff’s allegations of fraudulent actions are wholly vague and

conclusory and, therefore, fail to state any type of plausible claim against any of these

Defendants. Further, “while a federal court may have jurisdiction over a fraud-upon-the-court

claim where the fraud may have infected a prior judgment of this court, it does not have

jurisdiction where the fraud allegedly infected some other court's judgment” as Plaintiff alleges

here. EQMD, Inc. v. Farm Bureau Gen. Ins. Co. of Michigan, No. 19-13698, 2021 WL 843145,

at *9 (E.D. Mich. Mar. 5, 2021) (citations omitted).

Moreover, with respect to the Defendant Judges, “[i]t is well established that judges and

other court officers enjoy absolute immunity from suit on claims arising out of the performance

of judicial or quasi-judicial functions.” Foster v. Walsh, 864 F.2d 416, 417 (6th Cir. 1988);

Dixon v. Clem, 492 F.3d 665, 674 (6th Cir.2007). There are only two exceptions to judicial

immunity:

First, a judge is not immune from liability for nonjudicial actions, i.e., actions not

taken in the judge's judicial capacity. Second, a judge is not immune for actions,

though judicial in nature, taken in the complete absence of all jurisdiction.

Harvey v. Franklin Cnty., Ohio, No. 2:22-CV-3886, 2023 WL 3688172, at *3 (S.D. Ohio May

25, 2023) (quoting Mireles v. Waco, 502 U.S. 9, 11–12, 112 S.Ct. 286, 288 (1991) (internal

citations omitted)). Here, the Defendant Judges would have been acting in a judicial capacity

when presiding over the foreclosure action. In the state of Ohio, common pleas courts have

“subject-matter jurisdiction over actions in foreclosure.” Bank of Am., N.A. v. Kuchta, 141 Ohio

St.3d 75, ¶ 20, 2014-Ohio-4275, 21 N.E.3d 1040, 1046 (Ohio 2014); see also Ohio Rev. Code §

2305.01. And, as Plaintiff alleges that the foreclosed property was located in Columbus, Ohio,

which lies within Franklin County, as Franklin County Common Pleas Court Judges, these

Defendants would properly have jurisdiction over the foreclosure proceeding. Finally,

“presiding over and rendering judgment in a foreclosure proceeding falls squarely within the

realm of ‘function[s] normally performed by a judge.’” Smith v. Manley, Deas, & Kochalski,

LLC, No. 2:21-cv-00931, 2022 WL 4621554 (S.D. Ohio Sep. 30, 2022) (quoting Stump v.

Sparkman, 435 U.S. 349, 362 (1978)). Accordingly, it is RECOMMENDED that Plaintiff’s

claims against the Judge and attorneys involved in the underlying foreclosure action be

DISMISSED.

B. Plaintiff’s Claims against the Franklin County Recorder’s Office

As noted, Plaintiff alleges that the Franklin County Recorder’s Office engaged in fraud

by, inter alia, misrepresenting foreclosure records to facilitate property seizure. A county

recorder’s office, however, is not a legal entity capable of being sued. El-Bey v. United States,

No. 1:21-CV-574, 2022 WL 394379, at *4 (S.D. Ohio Feb. 9, 2022), report and recommendation

adopted, No. 1:21-CV-574, 2022 WL 2835003 (S.D. Ohio July 20, 2022) (finding the Clinton

County Recorder’s Office was not an entity capable of being sued); Pratt v. Ohio, No. 1:15-CV-

510, 2015 WL 5447789, at *2 (S.D. Ohio Sept. 16, 2015), report and recommendation adopted,

No. 1:15-CV-510, 2015 WL 5884895 (S.D. Ohio Oct. 7, 2015) (same finding with respect to the

Hamilton County Recorder’s Office). And, even if it were an entity capable of being sued,

Plaintiff’s allegations are far too vague and conclusory to state any plausible claim.

Accordingly, it is RECOMMENDED that any claims against the Franklin County Recorder’s

Office be DISMISSED.

C. Remaining Defendants

Plaintiff makes no factual allegations against Defendants Frandsen, Windsor, Hendrix, or

the Franklin County Treasurer; she merely mentions them by name in the caption of her

duplicate filings, which the Court has construed here as an extension of her “Original

Complaints.” It is a basic pleading requirement that a plaintiff attribute factual allegations to

particular defendants. See Twombly, 550 U.S. at 544 (holding that, in order to state a claim,

Plaintiff must make sufficient allegations to give a defendant fair notice of the claim). “When a

person is named as a defendant without an allegation of specific conduct, even under the liberal

construction afforded to pro se complaints, the complaint against that defendant is subject to

dismissal.” Kynwulf v. Corcoran, No. 2:24-CV-213, 2025 WL 1093387, at *4 (S.D. Ohio Apr.

11, 2025) (citing Gilmore v. Corr. Corp. of Am., 92 F. App'x 188, 190 (6th Cir.2004) (dismissing

complaint where plaintiff failed to allege how any named defendant was involved in the violation

of his rights)). Accordingly, it is RECOMMENDED that any claims Plaintiff has intended to

assert against these Defendants be DISMISSED.

V.

For the reasons set forth above, it is RECOMMENDED that the Complaint be

DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) with the exception of Plaintiff’s claims

against KeyBank National Association.

Further, it is ORDERED that the United States Marshal shall serve a copy of the

Complaint (ECF Nos. 4, 5), summons, and this order upon Defendant KeyBank National

Association as directed by Plaintiff. All costs of service shall be advanced by the United States.

It is further ORDERED that Plaintiff shall serve upon this Defendant or, if appearance

has been entered by counsel, upon Defendant’s attorney(s), a copy of every further pleading or

other document submitted for consideration by the Court. Plaintiff shall include with the original

paper to be filed with the clerk of court a certificate stating the date a true and correct copy of

any document was mailed to defendants or counsel. Any paper received by a district judge or

magistrate judge which has not been filed with the clerk or which fails to include a certificate of

service will be disregarded by the court.

It is further ORDERED that Plaintiff shall inform the Court promptly of any changes in

Plaintiff’s address which may occur during the pendency of this lawsuit.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a forfeiture of the right to de novo review of by the District Judge

and waiver of the right to appeal the judgment of the District Court. Even when timely

objections are filed, appellate review of issues not raised in those objections is forfeited. Robert

v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s

report, which fails to specify the issues of contention, does not suffice to preserve an issue for

appeal . . . .” (citation omitted)).

/s/ Elizabeth A. Preston Deavers______

DATED: April 25, 2025 ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE