561 B.R. 917
Bankr. N.D. Ga.2016Background
- Debtor (pro se) filed an adversary Complaint (and Amended Complaint) challenging Ocwen Loan Servicing and Enclave@Lakewood Estates HOA’s rights to foreclose on residential property; sought default judgments against defendants for alleged failure to respond.
- Debtor filed certificates of service claiming FedEx delivery on Sept. 22, 2016, but the certificates failed to identify recipients or addresses.
- Ocwen timely filed a Motion to Dismiss (Oct. 17, 2016), arguing (inter alia) improper service, failure to state a claim, that Ocwen was not properly named in the Amended Complaint, and that claims are barred by res judicata.
- Court found Debtor’s service proofs defective under Fed. R. Bankr. P. 7004/Rule 4 and that no entry of default had been obtained; therefore default judgment was inappropriate.
- On the merits, the Complaint was held to be a conclusory/shotgun pleading that failed Rule 8(a) and Rule 12(b)(6) standards and failed to plead fraud with Rule 9(b) particularity; many allegations mirrored prior dismissed suits.
- Court dismissed all claims against Ocwen (Motion to Dismiss granted), denied Debtor’s motions for default judgment against Ocwen and Enclave, and found res judicata barred re-litigation of previously-decided foreclosure claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of service of process | Service was made via FedEx on Sept. 22 and was adequate | Certificates lack recipient identity/address; service insufficient | Service proof inadequate; default inappropriate; personal jurisdiction not established |
| Timeliness of Ocwen's response | Ocwen failed to answer within 30 days; default warranted | Ocwen filed timely Motion to Dismiss within the response period | Ocwen timely responded (Motion to Dismiss filed Oct. 17) — no default |
| Failure to state a claim (Rule 12(b)(6) / Rule 8) | Complaint alleges fraud, wrongful foreclosure, and that Ocwen is a debt collector, entitling relief | Pleading is conclusory, a shotgun pleading, and fails to give fair notice | Complaint fails to state plausible claims; dismissed against Ocwen |
| Fraud pleading particularity (Rule 9(b)) and res judicata | Fraud and forged assignment allegations; new facts in reply | Fraud not pled with required specificity; claims largely mirror prior dismissed suits | Fraud claims dismissed for lack of particularity; res judicata bars re-assertion of prior claims |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (establishes plausibility standard for pleading)
- Ashcroft v. Iqbal, 556 U.S. 662 (applies pleading standards to dismiss conclusory allegations)
- Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235 (11th Cir. 1999) (elements for res judicata in this circuit)
- Lobo v. Celebrity Cruises, Inc., 704 F.3d 882 (11th Cir. 2013) (dismissal for failure to state a claim can be an adjudication on the merits for res judicata)
- United States v. Jones, 29 F.3d 1549 (11th Cir. 1994) (permitting judicial notice of prior court acts/entries)
- Bryant v. Avado Brands, Inc., 187 F.3d 1271 (11th Cir. 1999) (standards for considering documents and judicial notice)