United States District Court, E.D. Missouri, Eastern Division
JUANITA W. WICKS, Plaintiff,
BANK OF NEW YORK MELLON, et al., Defendants.
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE.
matter is before me upon the motion of plaintiff Juanita W.
Wicks for leave to proceed in forma pauperis in this
civil action, filed pursuant to the Real Estate Settlement
Procedures Act (“RESPA”), 12 U.S.C. § 2601
et seq. The motion will be granted. In addition, for
the reasons discussed below, this case will be dismissed.
28 U.S.C. § 1915(e)(2), this Court is required to review
a complaint filed in forma pauperis and to dismiss
it if it is frivolous, malicious, or fails to state a claim
upon which relief can be granted. A Court is also required to
dismiss a case if it determines at any time that it lacks
subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3). “It
is well established that standing is a jurisdictional
prerequisite that must be resolved before reaching the merits
of a suit.” City of Clarkson Valley v. Mineta,
495 F.3d 567, 569 (8th Cir. 2007) (citing McCarney v.
Ford Motor Co., 657 F.2d 230, 233 (8th Cir. 1981));
see also Lewis v. Casey, 518 U.S. 343, 349 n. 1
(1996) (internal citations omitted) (standing “is
jurisdictional and not subject to waiver”).
instant case is the second RESPA action plaintiff has filed
in this Court. The first began on February 22, 2016, when
plaintiff filed a pro se complaint against Wells
Fargo, Greg A. Luber, and Bank of New York Mellon. See
Wicks v. Wells Fargo, , Case No. 4:16-cv-243-CDP (E.D.
Mo. Apr. 1, 2016) (hereafter “Wicks 1”).
Plaintiff filed the complaint on behalf of herself and her
husband, Feldon Wicks. She alleged that Wells Fargo, Greg
Luber, and Bank of New York Mellon acted unlawfully under
RESPA by committing fraud in conjunction with a mortgage on a
home located at 1504 Hudson Road in St. Louis, Missouri. In
an order dated March 1, 2016, I noted that plaintiff
apparently lacked standing to bring the action because she
was not a property owner or mortgagor on the Hudson Road
property, and gave her the opportunity to provide me with
information that she had a legal interest in the property. On
April 1, 2016, I dismissed the complaint for lack of subject
matter jurisdiction when plaintiff did not provide such
information. I also determined that plaintiff was
impermissibly attempting to represent another party in
federal court. I take judicial notice of this record and my
March 1, 2016 and April 1, 2016 orders. See Cravens v.
Smith, 610 F.3d 1019, 1029 (8th Cir. 2010) (quoting
In re Papatones, 143 F.3d 623, 624 n. 3 (1st Cir. 1998)
(“The court may take judicial notice of its own orders
and of records in a case before the court.”));
United States v. Morris, 451 F.2d 969, 972 (8th Cir.
1971) (The district court may take judicial notice of its own
instant complaint, plaintiff writes: “I'm refiling
my case because Feldon F. Wicks granted me ‘POA' in
May of this year (2017).” (Docket No. 1 at 6). Included
in the complaint is a copy of a Missouri Durable Power of
Attorney executed by Feldon Wicks. (Id. at 11-16).
Feldon Wicks has not filed his own financial affidavit or
motion for leave to proceed in forma
pauperis, which he is required to do if he is
pursuing this action on his own behalf, nor has he signed the
complaint as required by Rule 11 of the Federal Rules of
alleges that defendants committed fraud against Feldon Wicks
in conjunction with a mortgage on the 1504 Hudson Road
property. Plaintiff does not claim to be the property owner
or a mortgagor on the property, but instead advances claims
on behalf of Feldon Wicks. For example, plaintiff writes that
she intends to forward a letter to the U.S. Department of
Justice and the Consumer Financial Bureau concerning
violations committed against Mr. Wicks in the United States
Bankruptcy Court. She also claims that Wells Fargo began
returning Mr. Wicks's mortgage payments, and rejected
applications for modification. Plaintiff alleges that Mr.
Wicks continues to have problems paying his mortgage, and
that she was “refiling” her complaint
“because they are threatening Mr. Wicks with
‘foreclosure' again.” (Id. at 9). As
relief, plaintiff states that she wants a civil trial, and
“$2, 000, 000 for all we've been through trying to
keep Mr. Wicks in his home (1504 Hudson Rd; 63136).”
(Id. at 5). Elsewhere in the complaint, plaintiff
states she wants “Mr. Wicks's home to be granted to
him ‘free and clear' of any liabilities to any
entity.” (Docket No. 1 at 9).
5, 2017, plaintiff filed a document entitled
“Injunction.” Therein, plaintiff claims that Mr.
Wicks informed her that Bank of New York Mellon set a
foreclosure date, but that he had discovered, from his
homeowner's insurance company, that another lender may
hold the deed to his property. On July 10, 2017, plaintiff
filed a pro se motion seeking a temporary
restraining order, alleging that Wells Fargo and Bank of New
York Mellon “refused to talk to us” and it was
unknown which lender held the deed to the Hudson Road
property. (Docket No. 5 at 2). Plaintiff claimed that the
matter needed to be “cleared and explained to us
because Mr. Wicks told me he has a foreclosure date”
Wicks 1, I determined that plaintiff lacked standing
to bring a lawsuit relative to the Hudson Road property
because she had no legal interest in it. Here, she again
brings suit relative to the Hudson Road property without
providing information that she has the necessary legal
interest. Instead, she states she is “refiling”
the case because Feldon Wicks granted her power of attorney.
As in Wicks 1, I conclude that this case is subject
to dismissal for lack of subject matter jurisdiction because
plaintiff has failed to demonstrate that she has a legal
interest in the Hudson Road property, and therefore that she
has standing to bring this lawsuit. Fed.R.Civ.P. 12(h)(3);
Mineta, 495 F.3d at 569 (“It is well
established that standing is a jurisdictional prerequisite
that must be resolved before reaching the merits of a
suit”). Plaintiff is proceeding under the mistaken
belief that she can represent Feldon Wicks's interests in
federal court because he granted her power of attorney.
Plaintiff is proceeding pro se in this matter, there
is no information upon which I can conclude she is a licensed
attorney, and the allegations in the complaint are for
violations of Mr. Wicks's rights. Federal law provides that
“parties may plead and conduct their own cases
personally or by counsel . . .”. 28 U.S.C. § 1654.
This means that only licensed attorneys may represent other
persons before this Court. Feldon Wicks's grant of power
of attorney to plaintiff does not satisfy this requirement.
The case is subject to dismissal on this basis, as well.
for all of the foregoing reasons, IT IS HEREBY
ORDERED that plaintiff's motion for leave to
proceed in forma pauperis (Docket No. 2) is
IS FURTHER ORDERED that this case is
DISMISSED without prejudice A separate order