United States District Court, E.D. Wisconsin
SCREENING AMENDED COMPLAINT (DKT. NO. 60), DISMISSING
DEFENDANTS DUBECK, BERGIDA AND CLAUSS, DENYING
PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT (DKT. NO.
53), DENYING DEFENDANT'S MOTION FOR SANCTIONS (DKT. NO.
61), DENYING PLAINTIFF'S MOTIONS TO QUASH (DKT. NOS. 63,
82), DENYING PLAINTIFF'S MOTION FOR SETTLEMENT (DKT. NO.
69), DENYING PLAINTIFF'S MOTIONS FOR A COURT OF SPECIAL
EQUITY (DKT. NOS. 73, 75, 76), DENYING PLAINTIFF'S MOTION
FOR IMMEDIATE INJUNCTIVE RELIEF (DKT. NO. 87), DENYING
PLAINTIFF'S MOTION FOR JUDGMENT (DKT. NO. 89), DENYING
DEFENDANT'S MOTION FOR SANCTIONS UNDER RULE 11(c) (DKT.
NO. 94) AND DENYING PLAINTIFF'S MOTION TO PRODUCE
EVIDENCE AND MANDATORY COUNTER-CLAIM (DKT. NO. 95)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
plaintiff is representing himself. On January 29, 2018, the
court dismissed the plaintiff's original complaint at the
screening stage, finding that he had not stated a claim for
federal relief. Dkt. No. 52. The court ordered the plaintiff
to file an amended complaint by March 30, 2018. Id.
The plaintiff did so on February 27, 2018. Dkt. No. 60.
Before the court could screen the amended complaint, the
plaintiff filed numerous notices, letters and motions.
See Dkt. Nos. 62-95. This order screens the amended
complaint, denies the outstanding motions and discusses next
plaintiff filed his original complaint on February 6, 2017.
Dkt. No. 1. While the complaint awaited screening, the only
defendant-Planet Home Lending, LLC-filed a motion to dismiss
the case for failure to state a claim. Dkt. No. 13. The
plaintiff responded with a motion for summary judgment, dkt.
no. 19, and other documents, see dkt. nos. 21-51.
court screened the original complaint on January 29, 2018 and
addressed the outstanding motions on the docket. Dkt. No. 52.
In finding that the complaint did not state a claim, the
court stated that
[e]ven construing the plaintiff's complaint liberally,
the court finds that the complaint does not state a cause of
action for which a federal court may grant relief. On page
five of the complaint form, under section C.,
“Jurisdiction, ” the plaintiff marked the box
that says, “I am suing for a violation of federal law
under 28 U.S.C. §1331.” Dkt. No. 1 at 5. But
nowhere in the complaint does he mention any federal laws. In
the letter he attached to the complaint-the letter he wrote
to the defendant-the plaintiff mentions RESPA, the FDCPA, and
TILA, but his complaint does not refer to any of those
statutes. The complaint does not explain which of those
statutes this particular defendant violated, or what actions
this particular defendant took that violated any provisions
of any of those statutes (or any others). Rather, he makes
general assertions that he has learned that
“banks”-in general-are engaging in certain
lending practices. He also states that he has “reason
to believe” that the defendant is not a bona
fide creditor; the court suspects that he means that
while he may owe money to someone on his loan, he
doesn't believe the defendant can prove that he owes that
money to the defendant.
In fact, the plaintiff does not ask this court to decide
whether the defendant violated a federal law at all. Instead,
he asks the court to conduct a “civil administrative
process, ” to assist him in obtaining proof that the
defendant owns his mortgage debt. He asks that, if the
defendant is not able to prove “via requested documents
that they are a qualified creditor to whom [his] mortgage
loan is owed, ” the court issue an order requiring the
defendant to “cease & desist all collection
activity immediately, including any/all threat of
foreclosure, ” to prohibit the defendant from selling
the loan and to declare him the free and clear owner of the
home. Dkt. No. 1 at 5.
Federal courts decide disputes between parties. If a person
with a mortgage loan believes a lender has violated some
specific provision of RESPA or the FDCPA or TILA, that person
may file a lawsuit making that allegation (and the lender may
defend against it). But without a specific dispute between
this plaintiff and this defendant over a specific violation
of federal law, the federal district court does not have the
authority to open up an administrative proceeding to decide
whether the defendant owns the plaintiff's loan. The
plaintiff asserts that he has been making his mortgage
payments and that his loan is in good standing. He seems to
have brought this lawsuit solely because he came across
information that leads him to believe that there are some
lenders who claim to own loans that they don't own, and
he wants to make sure that isn't the case with his loan.
That is not a “dispute” that the federal court
system can resolve.
There are procedures that give borrowers the
ability-even the right-to find out who owns a mortgage loan.
The plaintiff appears to be familiar with at least some of
those procedures. He knows about the QWR (“qualified
written request”) procedure under RESPA, because he
attempted to make a QWR, dated January 18, 2017, to the
defendant. The certified mail receipt he attached to the
complaint shows that the lender received that request at its
office in Dallas, Texas on January 22, 2017, dkt. no. 1-1 at
7, and he attaches a letter from the defendant, dated January
24, 2107, in which the defendant acknowledges receipt of the
request and informs him that they are reviewing his loan
file, dkt. no. 1-1 at 8. Rather than waiting for the QWR
process to play out, the plaintiff filed this federal
complaint on February 6, 2017-less than two weeks after the
defendant wrote to him that it was reviewing his loan file.
On March 17, 2017, the court received a letter from the
plaintiff. Dkt. No. 7. In it, he told the court that the
administrative process he'd asked the court to preside
over was finished and that the defendant had not provided him
“any documentation as required by law to prove or
establish themselves as a bonafide creditor.”
Id. Based on this alleged failure, he asked the
court to order the defendant to stop “all further
collection matters, ” order the defendant to return all
his payments to him, grant him damages for “violating
Fair Credit Lending Practices” and order the defendant
to grant him free and clear title to the property.
Id. Oddly, he attached to this letter a letter from
the defendant, dated March 3, 2017-two weeks earlier-in which
the defendant informed him that it was still reviewing his
loan file, and that it would respond to him once it had
finished. Dkt. No. 7-1 at 5.
On the same day-March 17, 2017-the court received a second
letter from the plaintiff. Dkt. No. 8. In this letter, he
informed the court that the defendant had responded to his
request and offered to make the note available for him to
inspect, but the plaintiff stated that the terms of
inspection the defendant had offered were not acceptable to
him. Id. In this letter, he asked the court to order
the defendant to “send wet ink promissory note to
Racine County Clerk.” Id. The plaintiff has
filed numerous other documents in the ensuing months-some of
them motions, some simply copies of documents or
It is possible that since filing his complaint on February 6,
2017, the plaintiff has identified a violation of one of the
statutes he referenced in his letters to the defendant. The
court will give the plaintiff an opportunity to amend his
complaint, to allege some specific violation of federal law
that he believes this defendant has committed.
Dkt. No. 52 at 6-10. The court warned the plaintiff that his
amended complaint must stand on its own-in other words, it
would take the place of the original complaint. Id.
at 10. The court explained that there was nothing more for
the plaintiff to file at that point but the amended
complaint. Id. at 11.
amended complaint is twenty-one pages long. Dkt. No. 60. The
plaintiff added three defendants to the caption: Michael
Dubeck, Jeffrey Bergida and Mark Clauss. Id. at 1.
The plaintiff appears to allege that Michael Dubeck is the
CEO of Planet Home Lending, LLC, and that both he and the
corporation reside in Connecticut. Id. The plaintiff
alleges that defendant Bergida resides in Florida, but does
not explain who Bergida is or what position he
holds. Id. The plaintiff alleges that
defendant Clauss resides in Wisconsin.
The amended complaint does not explain the role that Clauss
played in the plaintiff's allegations, but the docket
indicates that defendant Mark Clauss is the attorney who has
represented Planet Home Lending in this case since it filed a
motion to dismiss in May of 2017. See Dkt. No. 13.
recounted above, the court's previous screening order
required the plaintiff to cite specific provisions of federal
law that he believed the defendants had violated. Pages two
through five of the amended complaint appear to be his
attempt to do so. The plaintiff starts with this declaration:
PLAINTIFF CLAIMS DECEPTIVE BUSINESS PRACTICES, FALSE BILLING,
FRAUD IN THE FACTUM/CONCEALMENT, MISREPRESENTATION, MISSUSE
OF THE MAILS, UNFAIR SURPRISE UNJUST ENRICHMENT, AND SEEKS
RESTITUTION IN TERMS MONETARY AND EQUITY, CANCELLATION OF
DEFENDANT'S ATTORNEY FEES, MORTGAGE AGREEMENT SET-OFF
FREE & CLEAR TITLE TO SAID PROPERTY PLUS MONETARY
RECOUPMENT; REQUESTING GSA BONDS WITH INSTRUCTIONS TO
IDEMNIFY MY EN LEGIS
Dkt. No. 60 at 2. He follows this declaration with a
“relevant statutes” section. Id. The
plaintiff reproduces the text of various federal statutes:
“18 U.S. Code §1005 - Bank Entries, reports and
transactions, ” “§1341 Frauds and swindles,
” “§1346 (2011) Definition of ‘scheme
or artifice to defraud, '” “18 U.S. Code
§1349 - Attempt and conspiracy, ” “Mail
Fraud (18 USC 1341, 1342, & 1345; 39 USC 3005 &
3007), ” “31 U.S. Code § 1341(a)(1)(A) &
(B) - Limitations on expending and obligating amounts,
” “18 USC §1961 (RICO), ” “15
U.S. Code §1641(e)(2), ” “15 U.S. Code
§1641(f)(1)(f), ” “12 CFR §230.4(a)(1)
Disclosure of Account opening, ” “18 U.S. Code
§1831n - Accounting objectives, standards, and
requirements (GAAP), ” “15 U.S. Code
§1692(f) - Unfair practices, ” “15 USC
1692e(2)(A)- False or misleading representations, ”
“12 USC 2605(k) RESPA, ” and “WI
428.103.” Id. at 3-5.
comes what appears to be the facts section. The plaintiff
alleges that he “began QWR inquiry on January 18, 2017
to determine defendant's status as bonafide payee to
mortgage documents via QWR per 12 U.S.C. Section
2605(e)[.]” Id. at 5. He says that the
defendant sent “a letter of March 3” but that he
had not given license to “exceed the statutory window
of an administrative process, max 45 days per Dodd-Frank Act,
Section 1463(c).” Id. The amended complaint
states, “Ability to actually view alleged original note
did not take place until late June 20, 2017(1), a full 5
months, far exceeding the 45 days for meaningful disclosure
required by law.” Id.
the amended complaint alleges that the plaintiff's QWR
request asked “who the owner of the obligation was,
” but that the defendant “treated” that as
“irrelevant.” Id. The plaintiff alleges
that the defendant was obligated to respond “per 15
U.S. Code §1641(a)” and that “Disclosures
should have occurred under 15 U.S. Code
§1641(e)(2)(A).” Id. He says that he
asked the defendant to “prove their standing with legal
right to demand debt payment as creditor, ” and that,
to do so, he had requested to see a “wet-ink signature
of the original note.” Id. The plaintiff
alleges that he eventually viewed “a document alleged
to be the original” at Gray & Associates, LLP in
New Berlin, Wisconsin, but that he “challenges the
validity of the notice to be proved by Affidavit under
penalty of perjury and forensic examination.”
Id. at 7.
the plaintiff alleges that attorney's fees are being
added to his monthly billing statements and that “no
contract offer or acceptance to pay attorney fees was entered
into by Plaintiff.” Id. at 7. He points to
paragraphs seven and twenty-one of the mortgage security
agreement and alleges that “Par. 21 citation of WI 428
is limited and does not allow defendant to attach legal fees
to a monthly mortgage statement or even bill for
services.” Id. at 8. He states that he did
not agree to pay the fees for legal services and that his
contract is unconscionable under Wis.Stat. §428.106.
Id. at 9-10. He says that adding attorney's fees
to his monthly mortgage statements violates 15 U.S.C.
§1692f and §1692e(2)(A) because it is a false
representation of the amount of the debt; he alleges that the
defendant is trying to collect an amount not authorized by
the agreement creating the debt. Id. at 9.
his allegations that the defendant has improperly added
attorney's fees to his statement, the plaintiff also
asserts that because “Defendant and legal counsel work
as a team, ” their behavior toward the plaintiff
“constitute[s] a pattern of RICO violation[s] where
parties in this case conspire to deprive Plaintiff of his
property using predatory, bully billing and collection
tactics.” Id. at 9. He says this practice is
also a “misuse of the mails.” Id. He
cites criminal mail fraud statutes. Id.
plaintiff then “challenges the veracity of the alleged
original note held by defendant[.]” Id. at 10.
He says that the mortgage documents were “robo-signed,
never sealed in Plaintiff's presence, evidenced by
unnotarized copies in plaintiff's possession.”
Id. He states that “there existed fraudulent
concealment and in the factum and inducement in the original
local documents” because, he alleges, certain facts
were not disclosed to him. Id. He “demands to
see a chain of custody that incorporates defendant's
standing with all relevant parties, assignments, owner(s),
beneficiaries, payments and conveyances.” Id.
the plaintiff notifies the court-as he did in his original
complaint-that “[i]t has come to Plaintiff's
attention that banks and servicers are engaging in economic
practices of deceptive accounting (4, 5), similar to stealing
or swindling.” Id. at 11. In support of this
argument, the plaintiff references a single paragraph from
the 1961 version of a publication from the Federal Reserve
Bank of Chicago called “Modern Money Mechanics: a
workbook on deposits, currency and bank reserves”
authored by Dorothy M. Nichols. Id. at 12, Dkt. No.
60-1 at 6. He says that he offered to settle with
“defendant”-he does not say which one-by
“offering a novation dated June 22, 2017 to overlook
systemic fraud of defendant's industry, granting
permission to leverage the note in exchange for defendant
returning free and clear title and to stop billing
plaintiff.” Dkt. No. 60 at 13. He says the defendant
did not respond, and has “refused to honor that
agreement.” Id. He also says that he sent the
defendant a “lawful Bill-of-Exchange dated July 18,
2017 for full pay-off of said alleged ‘loan' as a
tax credit which defendant retained and did not return for
cause or cure, which under UCC 4-603 qualifies as an
acceptance, ” but the defendant did not respond to
this, either. Id.
amended complaint concludes by saying that its intent
“is recovery of damages, settlement and closure of said
alleged mortgage ‘loan,' attendant fees and
charges.” Id. at 14.
the time the court issued the January 29, 2019 screening
order and the time the plaintiff filed his signed amended
complaint, he filed six documents (including an unsigned
amended complaint). Since the court received the signed
amended complaint on February 27, 2018, the plaintiff has
filed thirty-one letters, motions, affidavits and
day that the court issued its January 29, 2018 screening
order, the plaintiff filed a motion for declaratory judgment
asking the court to prevent the defendant from attaching
attorney fees to his billing statements. Dkt. No. 53. Along
with the motion, the plaintiff filed an affidavit attesting
that all his accounts are prepaid. Dkt. No. 54.
days later, the plaintiff filed a fourteen-page
“Response to Defendant's Original Request for
Declaratory Judgement and Motion to Dismiss.” Dkt. No.
55. This document appears to be a response to Planet Home
Lending's motion to dismiss, dkt. no. 13, which the
defendant had filed eight months earlier and which
the court had decided in the January 29, 2018 order, dkt. no.
52 at 13.
February 12, 2018, the plaintiff filed an unsigned complaint.
Dkt. No. 56. The February 27, 2018, signed amended complaint
supersedes that document (and his original complaint).
February 13, 2018, the court received a letter from the
plaintiff. Dkt. No. 57. The letter did not ask the court to
do anything. It contained statements. The next day, the court
received from the plaintiff a document entitled “UCC
FINANCING STATEMENT.” Dkt. No. 58.
little over two weeks after the court received the signed,
amended complaint, defendant Planet Home Lending filed a
motion for sanctions under Fed.R.Civ.P. 37. Dkt. No. 61. The
motion alleged that the plaintiff violated the court's
January 29, 2018 order by filing a state court case and by
filing tax form 1099-A's with the IRS. Id.
OnMarch 20, 2018, the court received from the plaintiff a
motion to quash the defendant's motion for sanctions.
Dkt. No. 63.
March 23 and August 27 of 2018, the court received seventeen
filings from the plaintiff. Dkt. Nos. 64-80. Several the
filings are letters, like the letter the court received on
February 13, 2018-they consist of declarations. In one
letter, dated March 21, 2018, the plaintiff stated that he
“solicit[ed] the court's assistance to effect [a]
set-off;” the plaintiff appeared to be asking the court
to order that the mortgage and promissory notes be treated as
debt instruments/government obligations to be applied to any
tax liabilities he may have had. Dkt. No. 64. Other letters
made no requests, simply stating long lists of declaratory
facts or citing statutes or regulations; still others were
not addressed to the court. Dkt. Nos. 65-67, 77. Almost all
the letters had pages of attachments-one as long as
of the filings are affidavits of various sorts-an affidavit
of mailing, an affidavit stating various laws, an affidavit
acknowledging and accepting a warranty deed. Dkt. Nos. 70,
71, 74, 78, 79. One filing is nothing but documents
(accompanied by a request for a hearing, which the plaintiff
included in many of his filings). Dkt. No. 68. One filing is
a notice to the court that the plaintiff had received a
billing statement. Dkt. No. 72. One document is titled,
“Final Notice of Default with Opportunity to
Cure;” it is addressed to defendants Dubeck and Clauss.
Dkt. No. 80.
the documents the plaintiff filed are motions, seeking action
from the court: Motion for Settlement and Closure of Case and
Account, dkt. no. 69, and three motions “For a Court of
Special Equity Via Security Deposit, ” dkt. nos. 73,
75, 76. On September 24, 2018, the defendant filed a single
response to all these motions. Dkt. No. 81. On February 27,
2019, the defendant supplemented that omnibus response. Dkt.
No. 91. While it is docketed as a letter, the plaintiff filed
a reply to the defendant's response on March 4, 2019.
Dkt. No. 92.
plaintiff has filed eleven other documents since October 1,
2018. There are more letters-one relating to an indemnity
bond, dkt. no. 85, and two relating to a postal money order
the plaintiff says he sent to Planet Home Lending to settle
the case, dkt. nos. 86, 88. There is a letter addressed to
defendant Clauss. Dkt. No. 90. There is a notice to Planet
Home Lending, containing the plaintiff's allegation that
Planet's continuing to bill him is “false
billing” that could “incur additional
charges.” Dkt. No. 93. He has filed four more motions:
a Motion to Quash Response, dkt. no. 82; a Motion for
Immediate Injunctive Relief and Notice of Contract Violation,
dkt. no. 87; a Motion for Judgment and Notice of
Administrative Default, dkt. no. 89; and a Motion for
Defendants to Produce Accounting Evidence and Mandatory
Counter-Claim to Defendants Motion Per FRCP 13, dkt. no. 95.
surprisingly, the defendant has filed another motion for
sanctions, and has requested a hearing. Dkt. No. 94.
1915(e)(2)(B) of Title 28 requires a court to dismiss a case
filed by an unrepresented plaintiff at any time if the court
determines that it “(i) is frivolous or malicious; (ii)
fails to state a claim upon which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.”
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992); Felton v. City of Chi., 827 F.3d 632, 635
(7th Cir. 2016). At this stage, the court accepts the factual
allegations in the complaint as true and draws all reasonable
inferences in favor of the plaintiff. Hotchkiss v.
David, 713 Fed.Appx. 501, 505 (7th Cir. 2017). The
Supreme Court has explained that a court may dismiss a claim
as factually frivolous if it is “clearly baseless,
” “fanciful, ” “fantastic, ”
delusional, ” “irrational, ” or
“wholly incredible.” Felton, 827 F.3d at
635 (citing Denton, 504 U.S. at 32-33). A court may
dismiss a claim as legally frivolous if it is “based on
an indisputably meritless legal theory.” Id.
The court, however, may not dismiss a claim as frivolous
simply because it finds that “the plaintiff's
allegations are unlikely.” Johnson v. Stovall,
233 F.3d 486, 489 (7th Cir. 2000) (citing Denton,
504 U.S. at 33).
state a claim under the federal notice pleading system, the
plaintiff must provide a “short and plain statement of
the claim showing that [he] is entitled to relief[.]”
Fed.R.Civ.P. 8(a)(2). A plaintiff does not need to plead
specific facts, but his statement must “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). A complaint that offers
“labels and conclusions” or “formulaic
recitation of the elements of a cause of action will not
do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555). To state
a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its
face.” Id. (quoting Twombly, 550 U.S.
at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable ...