Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bank of America, N.A. v. Kissi

United States District Court, Fourth Circuit

September 6, 2013

BANK OF AMERICA, N.A., et al., Plaintiffs,
v.
DAVID KISSI, et al., Defendants.

MEMORANDUM OPINION

PAUL W. GRIMM, District Judge.

This Memorandum Opinion disposes of:

(1) Defendant David Kissi's Motion to Dismiss Bank of America's Claim Combined with the Kissis'[1] $100 Million Counter-Claim Against Bank of America, Countrywide, Specialized Loan Servicing, LLC, EMC, Chase Mortgage Bank, JP Morgan, David Panzer, John Burson, Sanford Saunders and Greenberg Traurig Law Firm ("Kissi Mot. to Dismiss & Countercl."), ECF No. 8, and Plaintiffs Bank of America, N.A. ("BANA") and Specialized Loan Servicing, LLC's ("SLS") Memorandum in Opposition to Kissi's Motion to Dismiss ("Pls.' Opp'n to Kissi's Mot. to Dismiss"), ECF No. 9;

(2) Plaintiffs' Motion to Dismiss Kissi's Counterclaim ("Pls.' Mot. to Dismiss Countercl."), ECF No. 10, and supporting Memorandum ("Pls.' Countercl. Mem."), ECF No. 10-1; Kissi's Opposition ("Kissi Opp'n to Pls.' Dismiss & Summ. J.), ECF No. 12; and Plaintiffs' Reply ("Pls.' Dismiss & Summ. J. Reply"), ECF No. 13;[2]

(3) Plaintiffs' Motion for Partial Summary Judgment, ECF No. 11, and supporting Memorandum ("Pls.' Summ. J. Mem."), ECF No. 11-3; Kissi's Opposition, ECF No. 12; and Plaintiffs' Reply, ECF No. 13;[3]

(4) Plaintiffs' Motion for Alternative Service, or in the Alternative, for an Extension of Time to Serve Edith Truvillion ("Pls.' Alt. Service Mot."), ECF No. 19; Kissi's Opposition ("Kissi's Alt. Service Opp'n"), ECF No. 20; and Plaintiffs' Reply ("Pls.' Alt. Service Reply"), ECF No. 21;

(5) Kissi's motion to transfer this case ("Kissi Transfer Mot."), ECF No. 23, and Plaintiffs' Opposition ("Pls.' Transfer Opp'n"), ECF No. 24;

(6) Kissi's "Motion to Dismiss Bank of America et al's Motion for Legal Fees" ("Kissi Legal Fees Mot."), ECF No. 26, and Plaintiffs' Opposition ("Pls.' Legal Fees Opp'n"), ECF No. 27;[4]

(7) Kissi's motion to stay these proceedings ("Kissi Stay Mot."), ECF No. 32, [5] and Plaintiffs' Opposition ("Pls.' Stay Opp'n"), ECF No. 33; and

(8) Defendant Edith Truvillion's Motion to Dismiss Bank of America et al's Claim Combined with a Motion for a Stay on Kissi Counter-Claim ("Truvillion Mot. to Dismiss"), ECF No. 34, and Plaintiffs' Opposition ("Pls.' Truvillion Dismiss Opp'n), ECF No. 35.

A hearing is not necessary. See Loc. R. 105.6.[6] For the reasons stated herein, Kissi's motion to dismiss is GRANTED with respect to Count Two and otherwise is DENIED and Kissi's purported counterclaim is STRICKEN; Plaintiffs' motion to dismiss Kissi's counterclaim is GRANTED; Plaintiffs' motion for partial summary judgment is DENIED without prejudice; Plaintiffs' motion for alternative service is DENIED as moot; Kissi's motion to transfer is DENIED; Kissi's motion to dismiss BANA's motion for legal fees is DENIED; Kissi's motion to stay is DENIED; and Truvillion's motion to dismiss and to stay is DENIED. Defendants must file their Answers no later than September 30, 2013. Except as expressly provided for herein, no other filings will be permitted until this Court enters a Case Management Order.

I. BACKGROUND[7]

This Memorandum Opinion seeks to untangle the Gordian Knot created by eight related motions, the briefing of which has become deeply convoluted by the use of unclear, consolidated responses and the disregard of the strictures of Fed.R.Civ.P. 7(b)(1). At the outset, resolving these motions requires a thorough understanding of the uniquely troublesome history of Defendants David Kissi and Edith Truvillion, both in this Court generally and with respect to Plaintiffs BANA and SLS specifically. Kissi and Truvillion are well known in this Court, and in many other courts, for their pattern of repeatedly engaging in extended, frivolous, vexatious, and abusive litigation against virtually anybody within reach.[8]

Kissi and Truvillion's trouble with the courts appears to date back at least to 2002, when an entity called Pramco II, LLC ("Pramco") brought a series of debt collection actions against Kissi and Truvillion. See Pramco II, LLC v. Kissi, No. PJM-02-42 (D. Md. filed Jan. 3, 2002); Pramco II, LLC v. Kissi, No. PJM-02-43 (D. Md. filed Jan. 3, 2002); Pramco II, LLC v. Kissi, No. PJM-02-44 (D. Md. filed Jan. 4, 2002). In 2003, in light of Kissi and Truvillion's continued abusive conduct, Pramco brought an additional action seeking, inter alia, "injunctive relief against frivolous and vexatious litigation." Pramco II, LLC v. Kissi, No. PJM-03-2241 (D. Md. filed Aug. 1, 2003). Judge Messitte granted Pramco's request for a preliminary injunction barring Defendants from attempting a collateral attack on any order of this Court and "prohibiting Defendants or their agents or individuals acting in concert with them from filing any pleadings, actions or proceedings" related to Pramco or any of a list of related cases and parties "without seeking leave of this Court." Preliminary Inj., Pramco II, LLC v. Kissi, No. PJM-03-2241 (D. Md. Oct. 10, 2003), ECF No. 53-1 (the " Pramco Injunction"); see also Pls.' Summ. J. Mem. Ex. Q, ECF No. 11-20 (same). The Pramco Injunction was made permanent by an order filed on October 25, 2004. Order, Pramco II v. Kissi, No. PJM-03-2241 (D. Md. Oct. 25, 2004), ECF No. 182.

Over the next several years, Kissi continued to bring frivolous motions in the Pramco cases, leading this Court to issue an order summarily denying all of Kissi and Truvillion's pending motions, noting that "[i]t is clear that even in the presence of the Preliminary Injunction, Defendants have taken actions suggesting a total disregard of the injunction and inviting further contempt criminal proceedings." Mem. Op., Pramco II, LLC v. Kissi, No. PJM-03-2241, 2 (D. Md. June 20, 2008), ECF No. 338. As such, "the Court expressly decline[d] to dissolve the preliminary injunction" still in effect. Id.

Kissi's more recent requests to dissolve the Pramco Injunction were denied by Chief Judge Chasanow, who observed that "Kissi's dozens of vexatious lawsuits have been directed against numerous individuals as well as organizational entities, often against the same Defendants multiple times." Mem. Op. & Order, ¶ 1, In re Kissi Litig., No. MC-12-287 (D. Md. Aug. 8, 2012) (the " Pramco Order"), ECF No. 1; see also Pls.' Summ. J. Mem. Ex. R, ECF No. 11-21 (same). The order also found that "[e]xcept for a few technical successes, Kissi has lost virtually every one of his lawsuits in both the trial courts and on appeal, where his pleadings hav[e] been consistently characterized as vexations and harassing, " and noted that Kissi had been sentenced to prison for, inter alia, contempt charges arising from Kissi's disregarding this Court's injunction. Pramco Order, supra ¶ 3-4.

Kissi and Truvillion's reputation for bringing ceaseless, frivolous litigation is not limited to Pramco or the District of Maryland. See, e.g., Kissi v. Pramco II, LLC, 401 F.Appx. 787, 788 (4th Cir. 2010) ("[Kissi] is enjoined from filing any further actions in this court until this sanction is paid and a district court judge certifies that his claim is not frivolous."); Kissi v. Gillespie, 348 F.Appx. 704, 705 (3d Cir. 2009) ("Because of his dilatory and vexatious conduct in that case and related cases... the District of Maryland issued a broad injunction prohibiting Kissi from filing any further actions or documents relating to the subject matter of the litigation in any other court."); Kissi v. United States, 493 F.Appx. 57, 59 (Fed. Cir. 2012) (acknowledging Kissi's "long and complicated litigation history"); United States v. Kissi, No. AW-05-254, 2013 WL 489989, at *3 (D. Md. Feb. 7, 2013) ("It is remarkable that following the Court's finding that Mr. Kissi's litigious conduct violated the terms of his supervised release, Mr. Kissi filed yet another lawsuit."); Kissi v. Pramco II LLC, No. JJF-09-133, 2009 WL 2424433, at *1 (D. Del. Aug. 5, 2009) ("Plaintiff is placed on NOTICE that future filings will be forwarded to the United States Court for the District of Maryland and WILL NOT BE CONSIDERED by this Court."); Kissi v. Pramco II, LLC, No 08-cv-1174, 2009 WL 8637883, at *3 (E.D. Va. March 4, 2009) ("The complaint presently before this Court patently is another instance of Kissi's ongoing contemptuous disregard for the orders of the federal courts and the rule of law in general."); Kissi v. Ammendale Trust, No. JLL-08-3574, 2009 WL 485179, at *1 (D.N.J. Feb. 26, 2009) (noting that Kissi "is no stranger to the federal courts" and finding Kissi's claim barred by the Pramco Injunction); Kissi v. Messitte, No. RWT-08-3360, 2009 WL 8660079, at *1 (D. Md. Jan. 30, 2009) ("Kissi's allegation is malicious, vexatious, and devoid of any basis in fact. The Complaint represents yet another attempt by Kissi to continue his campaign of repetitive, vexatious, and frivolous litigation."); Kissi v. Clement, No. 08-CV-1784, 2008 WL 7526326, at *5 (N.D. Ohio Oct. 3, 2008) ("Mr. Kissi has established a clear pattern of filing complaints in this court and in other district courts which are patently frivolous and vexatious, and which are certainly calculated to harass the defendants and abuse the judicial process. It also is apparent that he will continue on this course until he is prevented from proceeding in this manner. Accordingly, David M. Kissi is permanently enjoined from filing any new lawsuits or other documents without seeking and obtaining leave of court...."); Kissi v. Wilson, No. PJM-08-1638, 2008 WL 7555488, at *1 n.1 (D. Md. Aug. 29, 2008) ("This case was transferred here by the United States District Court for the Northern District of Ohio. This case represents one of many efforts by Kissi to evade the pre-filing injunction issued against him." (citations omitted)); Pramco II LLC v. Kissi, Nos. PJM-03-2241, PJM-02-42, PJM-02-43, PJM-02-44, PJM-03-748, 2008 WL 7546954, at *1 (D. Md. June 20, 2008) ("The Court has communicated with the U.S. District Court for the Northern District of Ohio and has advised that court of the existence of this Court's preliminary injunction and shall invite the Judges of that court to transfer their cases to Maryland."); Kissi v. United States, 102 Fed.Cl. 31, 38 (Ct. Fed.Cl. 2011) ("[Kissi's] frivolous claims in this case, coupled with his history in other U.S. courts, leads the Court to conclude that it is in the best interest of judicial resources to deter [Kissi] from filing future frivolous lawsuits in this Court.").

As a result of Kissi's continued abuse of litigants and the court system, this Court issued a broad prefiling injunction that bars Kissi from, inter alia, instituting new civil cases without approval from the Chief Judge or even entering the courthouse without specific permission. Mem. Op. & Order, In re Kissi, No. MC-13-33 (March 14, 2013) (the "Kissi Injunction"). Numerous other courts have subjected Kissi to similar restrictions. See, e.g., In re Kissi, No. 2425, 2013 WL 489023, at *3-4 (J.P.M.L. Feb. 6, 2013) (refusing to accept any filings from Kissi with respect to certain matters) (the "JPML Order"); Order, Kissi v. Capitol Bank, No. 2012-CA-8122B (D.C. Super. Ct. Jan. 3, 2013) (the "DC Injunction") (prefiling injunction); Kissi, 401 F.Appx. at 788 (Fourth Circuit prefiling injunction); Kissi, 2009 WL 2424433, at *1 (District of Delaware ordering that future filings by Kissi will not be considered and will be directed to the District of Maryland); Kissi, 2008 WL 7526326, at *5 (Northern District of Ohio enjoining Kissi from filing new documents without leave of court), Kissi, 102 Fed.Cl. At 38 (barring Kissi from filing further actions related to Pramco or his bankruptcy proceedings in the Court of Federal Claims).

Kissi and Truvillion's history with BANA and SLS is no exception from their wellestablished pattern. The interactions between the parties date back to 2006, when Defendants took out a mortgage on the property located at 4305 Ammendale Road, Beltsville, Maryland. Compl. ¶¶ 7-8, ECF No. 1. The loan secured by the mortgage is serviced by BANA and subserviced by SLS. Id. ¶ 9. Plaintiffs allege that Kissi and Truvillion are behind on their mortgage payments, but that no foreclosure action is pending; Plaintiffs do not allege that they have initiated any other lawsuits against Kissi or Truvillion. Id.

On April 3, 2012, Kissi and Truvillion filed their first lawsuit against BANA, SLS, and SLS officer John Beggins in the Circuit Court for Prince George's County (the "First Action"). Id. ¶ 10. That case alleged that BANA, SLS, and Beggins falsely asserted ownership over the Ammendale property, failed to account for mortgage payments twenty-five years earlier, and charged an inflated rate of interest because of Kissi and Truvillion's race. Id. ¶ 11. The case was removed to the United States District Court for the District of Maryland and this Court dismissed the complaint without leave to amend on June 27, 2012. Id. ¶¶ 10-12. Kissi and Truvillion filed several motions seeking, inter alia, reconsideration, transfer of the case to California, and the recusal of Judge Motz; all were denied. Id. ¶ 12. Kissi and Truvillion sought appellate review, which was denied for their failure to comply with the Fourth Circuit's injunction in Kissi v. Pramco II, LLC, 401 F.Appx. at 788. Compl. ¶ 12.

Shortly before the First Action was dismissed, Kissi and Truvillion filed a petition with the Judicial Panel on Multidistrict Litigation (the "JPML") (the "First Petition") seeking to consolidate the First Action with another case and to centralize the actions before the Central District of California. Id. ¶ 14. The First Petition was summarily closed upon the dismissal of the First Action. Id.

On July 9, 2012, Kissi and Truvillion filed a second lawsuit in the Circuit Court for Prince George's County (the "Second Action") against the same defendants and alleging the same claims as in the First Action. Id. ¶ 15. The defendants in that action moved to dismiss, and that motion was pending when the instant Complaint was filed. Id. Among the proceedings in the Second Action are Kissi and Truvillion's motion to transfer the case out of Maryland state court-where they brought the suit-to the United States District Court for the Central District of California. Id. ¶ 21. After the Complaint was filed, the Second Action was dismissed, as reflected in docket entries on December 11, 2012 and January 2, 2013. See Maryland Judiciary Case Search, http://casesearch.courts.state.md.us/inquiry/processDisclaimer.jis.

On July 16, 2012, Kissi and Truvillion filed a second petition with the JPML (the "Second Petition"), once again seeking to consolidate the First Action with other, unrelated actions notwithstanding the dismissal of the First Action. Compl. ¶ 16. The Second Petition was closed after another case was dismissed and the case lost its multidistrict nature. Id.

On July 24, 2012, Kissi and Truvillion filed an action in the United States District Court for the Central District of California against BANA, SLS, Beggins, SLS officer Susan Beck, and BANA officer Brian Moynihan (the "Third Action"). Id. ¶ 17. The Third Action "is predicated on the same vague allegations raised in the [First Action], as well as confusing allegations relating to a consent agreement' between the Federal Trade Commission and Countrywide." Id. The court refused to accept filing of the complaint without prepayment of a filing fee, noting that "[t]he district is not the proper venue for plaintiff's claim related to real property located in Maryland and his request, under Maryland law, for injunctive relief enforceable in Maryland." Id .; see Order re Leave to File Action Without Prepayment of Filing Fee, Kissi v. Bank of Am., No. UA-12-6356 (C.D. Cal. Aug. 3, 2012) (the "C.D. Cal. Order"), Pls.' Summ. J. Mem. Ex. K, ECF No. 11-14.

On August 31, 2012, Kissi and Truvillion filed another lawsuit in the Central District of California (the "Fourth Action") setting forth virtually identical allegations to those in the Third Action. Compl. ¶ 18. The court refused to hear these claims for the same reasons that it had given a month earlier. Id.

On October 16, 2012, Kissi filed a lawsuit in the Superior Court for the District of Columbia (the "Fifth Action") against "Bank of America/Countrywide/Specialized Loan Servicing, " as well as over 30 other defendants. Id. ¶ 19. At the time that Plaintiffs filed the instant Complaint, they had not yet been served in the Fifth Action. Id. The online docket indicates that it has since been dismissed. Court Cases Online, D.C. Courts, www.dccourts.gov/internet/CCO/jsf.

Plaintiffs assert that Kissi and Truvillion's conduct constitutes "vexatious and frivolous" litigation carried out "to attempt to extort money from SLS and BANA." Id. ¶ 24. This conduct has caused Plaintiffs "to incur substantial and unwarranted fees and costs in defending against said actions." Id. ¶ 28. Accordingly, Plaintiffs filed suit on November 6, 2012, asserting one count for injunctive relief and one count for damages for abuse of process. Id. ¶¶ 35, 40.

Kissi responded with a Motion To Dismiss Bank of America's Claim Combined With The Kissis' $100 Million Counter-Claim Against Bank of America, Countrywide, Specialized Loan Servicing LLC, EMC, Chase Mortgage Bank, JP Morgan, David Panzer, John Burson, Sanford Saunders and Greenberg Traurig Law Firm on November 28, 2012. In support of Kissi's purported counterclaim, Kissi asserts that "BOA, Countrywide and SLS have inherited the fraud and Conversion' for Unjust Enrichment' by EMC, JP Morgan, Chase Mortgage Bank and the law firm of Greenberg Traurig and its Agents, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.