United States District Court, D. Nebraska
LISA A. RABBE, Plaintiff,
WELLS FARGO, N.A., GOVERNMENT NATIONAL MORTAGE ASSOCIATION, as Trustee for Guaranteed Remic Pass-Through Securities and MX Securities Ginnie Mae Remic Trust 2003-062; HOMESERVICES LENDING, LLC, and JOHN DOES 1-100, Defendants.
MEMORANDUM AND ORDER
SMITH CAMP SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff Lisa A. Rabbe's
Motions for Temporary Restraining Order, ECF Nos. 10, 23; and
Motion for Default Judgment, ECF No. 24. Also before the
Court is the Motion to Dismiss for Failure to State a Claim,
ECF No. 20, submitted by Defendant Wells Fargo, N.A. For the
reasons stated below, the Motion to Dismiss will be granted;
the Motions for Temporary Restraining Order will be denied;
and the Motion for Default Judgment will be construed as a
motion for clerk's entry of default and referred to the
Clerk of Court.
following factual summary is based on Rabbe's allegations
in her Complaint, ECF No. 1, and her factual assertions in a
previous lawsuit, all of which the Court accepts as true for
purposes of the Motion to Dismiss. The Court considers
matters from Rabbe's previous lawsuit as “matters
of public record.” See Levy v. Chi, 477 F.3d
988, 991 (8th Cir. 2007) (“In considering a 12(b)(6)
motion, a court can consider certain documents outside the
pleadings themselves, including exhibits to the pleadings,
and matters of public record.”).
19, 2003, Rabbe obtained a home loan for $178, 589 (the
“Loan”) which was transferred to Wells Fargo as
owner and holder. Compl., ECF No. 1 at 6-7. The Loan was
evidenced by a Promissory Note (the “Note”) and
secured by a Deed of Trust (the “Deed of Trust”)
encumbering real property located at 3108-10 North 95th
Street, Omaha, Nebraska 68134 (the “Property).
Id. at 2, 7.
this action, on February 6, 2017, Rabbe and her husband filed
a Complaint in the Douglas County, Nebraska, District Court,
captioned Randolph Michael Rabbe and Lisa Ann Rabbe v.
Wells Fargo Home Mortgage, Inc. and Wells Fargo, N.A.,
No. CI 17-983. The action was removed to this Court on April
13, 2017, and assigned No. 8:17-cv-00131 (the “First
Lawsuit”). In the First Lawsuit, Rabbe and her husband
alleged that Wells Fargo breached the terms of the Loan by
funding the Loan with tender that was allegedly “not
backed by or redeemable in Federal Reserve Notes, coins or
lawful money of the United States” and by charging
“an interest rate that was 20 times greater than what
was authorized in the contract.” See No.
8:17-cv-00131, ECF No. 1-1. Rabbe and her husband also
alleged Wells Fargo committed fraud, violations of the Truth
in Lending Act (TILA), violations of the Racketeer Influenced
Corrupt Organizations Act (RICO), and usury under Neb. Rev.
Stat. § 45-101.04. Id. Rabbe and her husband
sought an injunction barring Wells Fargo from enforcing its
rights under the Deed of Trust. Id.
29, 2017, this Court granted Wells Fargo's motion for
judgment on the pleadings and dismissed the First Lawsuit.
The Court concluded that many of Rabbe's claims failed as
a matter of law because they were premised on a faulty
“vapor money” claim-that banks do not lend
“real” money, a claim that “has been
uniformly rejected by every court to consider it.” Mem.
and Order, No. 8:17-cv-00131, ECF No. 24 at 4. The Court
reasoned that Rabbe failed to allege a factual basis for any
of her breach-of-contract, fraud, or racketeering claims, and
provided “no factual basis for those claims.”
Id. at 6. The Court also held that her usury claim
was precluded by state law and her TILA claim was
time-barred. Id. at 4. The Court concluded that
Rabbe failed to state any viable claims and amendment of her
pleadings would be futile. Id. at 10.
appealed the First Lawsuit to the United States Court of
Appeals for the Eighth Circuit. That court summarily affirmed
and held that “the denial of leave to amend was proper,
” and “the grant of judgment on the pleadings was
correct for the reasons stated by the district court.”
Rabbe v. Wells Fargo Home Mortg., Inc., 720
Fed.Appx. 819, 820 (8th Cir. 2018). Rabbe sought a rehearing
en banc, which was denied. She did not appeal to the
United States Supreme Court, and the decision became final.
filed this lawsuit on December 3, 2018, against Wells Fargo,
Government National Mortgage Association, and Homeservices
Lending, LLC. She asserts several causes of action based on
wrongful foreclosure, fraud, intentional infliction of
emotional distress, declaratory relief, as well as violations
of the Real Estate Settlement Procedures Act (RESPA). Each of
her claims is based on “Plaintiff's original loan
transaction and subsequent securitization.” Comp., ECF
No. 1 at 3. She asserts that Defendants Government National
Mortgage Association, and Homeservices Lending, LLC have
failed to answer or otherwise respond to her Complaint and
Wells Fargo's Motion to Dismiss
Fargo argues that Rabbe's claims against it are barred by
the doctrine of res judicata. Res judicata, or “claim
preclusion, ” which bars “relitigation of a claim
on any grounds raised before or on any grounds which could
have been raised in the prior action.” Poe v. John
Deere Co., 695 F.2d 1103, 1105 (8th Cir. 1982). The
doctrine applies “when the party against whom the
earlier decision is being asserted had a ‘full and fair
opportunity' to litigate the issue in question.”
Lovell v. Mixon, 719 F.2d 1373, 1376 (8th Cir.
1983). “Under Nebraska law, claim preclusion bars
relitigation of any right, fact, or matter directly addressed
or necessarily included in a former adjudication if (1) the
former judgment was rendered by a court of competent
jurisdiction, (2) the former judgment was a final judgment,
(3) the former judgment was on the merits, and (4) the same
parties or their privies were involved in both
actions.” Hill v. AMMC, Inc., 915 N.W.2d 29,
33 (Neb. 2018). “The doctrine bars relitigation not
only of those matters actually litigated, but also of those
matters which might have been litigated in the prior
action.” Fetherkile v. Fetherkile, 907 N.W.2d
275, 286 (Neb. 2018).
respect to Wells Fargo, the elements of claim preclusion are
met in this case. This Court's decision and the decision
of the Eighth Circuit in the First Lawsuit were decisions
rendered by courts of competent jurisdiction. The prior
judgment was a final judgment on the merits and was
unsuccessfully appealed by Rabbe, thus satisfying the second
and third elements. Finally, both the First Lawsuit and this
case involve Wells Fargo and both cases arise out of the same
nucleus of operative fact. The First Lawsuit was based on the
Loan and Wells Fargo's foreclosure of the Property
securing its repayment. In this case, Rabbe alleges that the
Defendants' security interests in the Property have not
been perfected, and they lack standing to foreclose. Thus, as
it relates to Wells Fargo, both lawsuits are based on whether
Wells Fargo properly secured repayment of Rabbe's Loan.
Accordingly, Plaintiff's claims could have been litigated
in the First Lawsuit and are barred in this action.
Motion for Temporary ...