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Berry v. Walter Mortgage Co.

United States District Court, W.D. Kentucky, Bowling Green Division

May 29, 2014



JOSEPH H. McKINLEY, Jr., Chief District Judge.

This matter is before the Court on motions to dismiss by Defendant, Ronnie Dortch [DN 14, DN 29], by Defendant, Jerry A. Burns [DN 27], by Defendant, Green Tree Servicing [DN 35], and on motions by Plaintiff, Elizabeth Berry, for a judgment of default against Defendant Ronnie Dortch [DN 21] and against Defendant Green Tree Servicing [DN 33]. Fully briefed, these matters are ripe for decision.


Upon a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), a court "must construe the complaint in the light most favorable to plaintiff[], " League of United Latin Am. Citizens v. Bredesen , 500 F.3d 523, 527 (6th Cir. 2007) (citation omitted), "accept all well-pled factual allegations as true[, ]" id., and determine whether the "complaint [] states a plausible claim for relief[, ]" Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009). Under this standard, the plaintiff must provide the grounds for his or her entitlement to relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). A plaintiff satisfies this standard only when he or she "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678. A complaint falls short if it pleads facts "merely consistent with a defendant's liability" or if the alleged facts do not "permit the court to infer more than the mere possibility of misconduct." Id. at 678, 679. Instead, the allegations must "show[ ] that the pleader is entitled to relief.'" Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

The Court recognizes that pro se pleadings are to be held to a less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner , 404 U.S. 519 (1972). The duty to be less stringent with pro se complaints, however, "does not require a court to conjure allegations on a litigant's behalf, '" Martin v. Overton , 391 F.3d 710, 714 (6th Cir. 2004) (quoting Erwin v. Edwards , 22 Fed.Appx. 579, 580 (6th Cir. 2001)), and the Court is not required to create a claim for the pro se plaintiff. Clark v. National Travelers Life Ins. Co. , 518 F.2d 1167, 1169 (6th Cir. 1975). To command otherwise would require the "courts to explore exhaustively all potential claims of a pro se plaintiff, [and] would also transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party." Beaudett v. City of Hampton , 775 F.2d 1274, 1278 (4th Cir. 1985). It is against this standard that the Court reviews the following facts.


Plaintiff, Elizabeth Berry, was the holder of a life estate interest in 2.592 acres located in Morgantown, Butler County, Kentucky. She obtained a 30-year mortgage from Defendant, Walter Mortgage Company, on April 21, 2006. The mortgage was secured by a promissory note on the Plaintiff's property. Plaintiff defaulted on the mortgage. On March 23, 2007, Walter Mortgage Company represented by Defendant, Jerry Burns, instituted a foreclosure action against the Plaintiff in Butler Circuit Court with Defendant, Judge Ronnie C. Dortch, presiding. On March 29, 2007, Burns, on behalf of Walter Mortgage Company, filed an Amended Complaint adding Plaintiff's husband and children as parties.

On June 9, 2009, Judge Dortch granted summary judgment in favor of Walter Mortgage Company and ordered the sale of the property. He also entered an order referring the foreclosure action to Butler County Master Commissioner. The property was sold by the Master Commissioner on December 17, 2010. On February 8, 2011, Judge Dortch signed the Order of Distribution and Order of Confirmation. (See Butler Circuit Court, Case Number 07-CI-00041.)

Berry filed this action against Walter Mortgage Company, Green Tree Servicing, Jerry Burns, and Judge Ronnie Dortch. Berry's original complaint was filed on November 1, 2013 and her amended complaint was filed on March 10, 2014. Berry asserts that her property was taken without compensation, due process, and equal protection in violation of 18 U.S.C. § 242. Specifically, Berry alleges that Walter Mortgage Company did not fulfill the conditions of the mortgage by failing to deed to Berry an acre of the property in question, not inspecting the plumbing, permitting the damaged septic tank to remain unrepaired, and not providing the finishing allowance. Berry maintains that the mortgage was not secured because the remainderment/co-owners, her daughters, and husband did not give permission or sign the promissory note or any document pertaining to the mortgage. Berry in her amended complaint contends that Green Tree Servicing services Walter Mortgage Company's accounts.

Likewise, Berry asserts a claim against Jerry Burns alleging that he was the attorney for Walter Homes and failed to validate the mortgage denying her family certain constitutional rights. Finally, Berry alleges that Judge Dortch denied her husband, her children, and herself equal protection of law by granting summary judgment in favor of Walter Mortgage Company, issuing an Order of Sale, and signing the Order of Confirmation.

Defendants have filed multiple motions to dismiss arguing that (1) a private cause of action under 18 U.S.C. § 242 does not exist, (2) Plaintiff's claims are barred by the statute of limitations; (3) three of the Defendants did not act under color of state law; and (4) Judge Dortch is protected by absolute judicial immunity. The Defendants raise other grounds for dismissal which are not necessary to address. Plaintiff filed motions for default judgment against Judge Dortch and Green Tree Servicing.


A. Private Cause of Action - 18 U.S.C. § 242

First, the Court notes that Plaintiff is asserting a cause of action against Defendants under a federal criminal statute 18 U.S.C. § 242. This criminal statute does not authorize any private civil cause of action. See Booth v. Henson , 290 Fed.Appx. 919, 920-21 (6th Cir. 2008)(stating that a private citizen lacks standing to file an action under criminal statutes 18 U.S.C. § 241 and 242); Kafele v. Frank & Woolridge Co. , 108 Fed.Appx. 307, 308-09 (6th Cir. 2004); Easterling v. Crawford, 2014 WL 428931, *10 (S.D. Ohio Feb. 4, 2014); Sefa v. Fayette County Police, 2012 WL 2793015, *1 (E.D. Ky. July 9, 2012); Kelly v. City of New Philadelphia, 2011 WL 3705151 (N.D. Ohio 2011). Further, ...

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