                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-2006

Ezekoye v. Ocwen Fed Bank
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3862




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Ezekoye v. Ocwen Fed Bank" (2006). 2006 Decisions. Paper 1221.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1221


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
BPS-170                                                    NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                             ________________

                                   No. 05-3862
                                ________________


    ANDREW EZEYOKE, Individually and on behalf of others similarly situated

                                         v.

 OCWEN FEDERAL BANK FSB a/k/a OCWEN FINANCIAL CORPORATION a/k/a
 OCWEN LOAN SERVICING, LLC a/k/a OCWEN FINANCIAL SERVICES; LONG
BEACH MORTGAGE COMPANY; WILLIAM ERBEY; CHRISTOPHER J. FOX; THE
LAW OFFICES OF MARK J. UDREN & ASSOCIATES; CHOMIE NEIL; GREGORY
 WHITWORTH; JULIE TOWERS; LINDA A. MICHLER; MICHELLE S. PIERSON

                                     Andrew Ezekoye,
                                                 Appellant
                                ________________

                  On Appeal From the United States District Court
                     For the Western District of Pennsylvania
                         (W.D. Pa. Civ. No. 05-cv-01049)
                   District Judge: Honorable Arthur J. Schwab
                                ________________

          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                  March 23, 2006

             Before: RENDELL, AMBRO and BECKER, Circuit Judges

                               (Filed: April 25, 2006)
                                ________________

                                    OPINION
                                ________________
PER CURIAM

     Andrew Ezekoye, proceeding pro se, appeals an order of the United States District
Court for the Western District of Pennsylvania dismissing his class action complaint

against Ocwen Federal Bank FSB and several of Ocwen’s employees and attorneys. We

will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).

       Ezekoye executed a mortgage that was assigned to Ocwen Federal Bank FSB.

Ocwen notified Ezekoye that his mortgage was in default, brought a mortgage foreclosure

action against him in Pennsylvania state court, and obtained a judgment in its favor in

2000. In his complaint, Ezekoye alleges that Ocwen used false affidavits and forged

documents in the mortgage foreclosure action. He claims that Ocwen’s conduct related to

the mortgage foreclosure violated a host of federal and state statutes, and Pennsylvania

common law.

       The District Court dismissed Ezekoye’s complaint under 28 U.S.C.

§ 1915(e)(2)(B), finding it barred by the doctrines of claim and issue preclusion. The

District Court explained that it had held in another action by Ezekoye that the final

judgment in the mortgage foreclosure action precludes him from raising claims of

conspiracy and fraud with regard to Ocwen’s conduct in that proceeding.

       First, we note that a pro se litigant may not represent the interest of a class in a

class action lawsuit. Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975).

Regarding Ezekoye’s individual claims, the documents submitted by the parties in

support of, and in opposition to, dismissal of this appeal under 28 U.S.C. § 1915(e)(2)(B)

establish that Ezekoye previously alleged in a complaint filed in state court that Ocwen

used false affidavits and forged documents in the mortgage foreclosure action. This

                                               2
complaint was removed to Ezekoye’s bankruptcy proceeding. The Bankruptcy Court

found the state court complaint barred by res judicata under Pennsylvania law due to

Ocwen’s judgment in the mortgage foreclosure action. The District Court affirmed.1

       The Bankruptcy Court has entered a judgment on the merits in a prior suit by

Ezekoye against Ocwen based upon the same cause of action. The Bankruptcy Court’s

opinion reflects that Ezekoye alleged in his state court complaint that affidavits submitted

by Ocwen employees Julie Towers and Gregory Whitworth in the mortgage foreclosure

action were false, and that Ocwen forged a welcome letter. The same allegations are the

basis of Ezekoye’s present complaint, in which he claims violations of the Fair Debt

Collection Practices Act, 15 U.S.C. §§ 1692-1692o (“FDCPA”), and the civil RICO

statute, 18 U.S.C. §§ 1961-1968. As these claims could have been raised in Ezekoye’s

state court complaint,2 they are barred by the doctrine of claim preclusion. See Board of

Trustees v. Centra, 983 F.2d 495, 504 (3d Cir. 1992) (stating that claim preclusion gives

dispositive effect to a prior judgment if a particular issue, although not litigated, could

have been raised in the earlier proceeding).3


  1
   Ezekoye’s appeal of the District Court’s order is pending in this Court at C.A. No. 04-
4017. The pending appeal does not change the preclusive effect of the Bankruptcy
Court’s order. See, e.g., Amcast Indus. Corp. v. Detrex Corp., 45 F.3d 155, 160 (7 th Cir.
1995).
  2
    See Tafflin v. Levitt, 493 U.S. 455, 458 (1990) (holding state courts have concurrent
jurisdiction over civil RICO claims); Itri v. Equibank, N.A., 464 A.2d 1336, 1342-43 (Pa.
Super. 1983) (holding state courts have concurrent jurisdiction over FDCPA claims).
  3
   Although Ezekoye lists in his complaint numerous other statutes that he contends have
been violated, their mere mention is insufficient to state a claim for relief.

                                                3
       We also conclude that Ezekoye’s claims against Ocwen employees William Erbey,

Whitworth and Towers, who were not parties to the state court complaint, are barred. See

Lubrizol Corp. v. Exxon Corp., 871 F.2d 1279, 1288 (5th Cir. 1989) (noting employer-

employee relationship may ground a claim preclusion defense). Regarding Ezekoye’s

claims against Ocwen’s outside counsel for allegedly securing an unlawful judgment in

the mortgage foreclosure action based upon false affidavits, these claims are barred by the

doctrine of issue preclusion. See Board of Trustees, 983 F.2d at 505 (setting forth

elements of issue preclusion doctrine).4

       Ezekoye argues that claim and issue preclusion are not proper grounds for

dismissal under § 1915(e)(2)(B). We disagree. The District Court properly invoked these

affirmative defenses under the circumstances of this case, where Ezekoye is plainly

seeking to relitigate the mortgage foreclosure action a third time, and where the District

Court has adjudicated a prior action by Ezekoye. See Neitzke v. Williams, 490 U.S. 319,

324 (1989) (stating that an in forma pauperis litigant lacks an economic incentive to

refrain from filing repetitive lawsuits, and that the in forma pauperis statute allows courts

to dismiss such suits to prevent abusive litigation); Gleash v. Yuswak, 308 F.3d 758, 760

  4
    Ezekoye further alleges in his present complaint that, like in the foreclosure action,
Ocwen and its counsel submitted false affidavits in the Bankruptcy Court proceeding
regarding the date the mortgage was assigned. The Bankruptcy Court found
discrepancies in the state court affidavits regarding the date the mortgage was assigned
immaterial. Similarly, Ezekoye fails to state a claim against Ocwen, its employee
Chomie Niel, and attorney Linda Michner based upon alleged discrepancies in the
affidavits regarding which entity serviced his loan. Finally, Ezekoye’s vague allegations
against attorney Michelle Pierson, who he states attempted to collect his debt on Ocwen’s
behalf, fail to state a claim for relief.

                                              4
(7 th Cir. 2002) (holding district court may invoke claim preclusion as basis for dismissal

under § 1915(e)(2)(B) where doctrine’s application is so plain that it renders a suit

frivolous).

       Accordingly, we will dismiss this appeal under 28 U.S.C. § 1915(e)(2)(B).




                                              5
