United States District Court, D. Minnesota
Federal Trade Commission and Consumer Financial Protection Bureau, Plaintiffs,
Green Tree Servicing LLC, Defendant.
REPORT AND RECOMMENDATION
E. RAU, United States Magistrate Judge.
above captioned case is before the Court on Roy J.
Dixon's (“Dixon”) Verified Emergency Motion
for Civil Contempt and Injunction Relief
(“Motion”) [Doc. No. 6]. This matter was referred
to the undersigned pursuant 28 U.S.C. § 636(b)(1) and
District of Minnesota Local Rule 72.1(a)(3)(A) for a Report
and Recommendation. See (Order of Referral) [Doc.
No. 8]. For the reasons set forth below, this Court
recommends that Dixon's Motion be denied because he has
no standing to enforce the Stipulated Order for Permanent
Injunction and Monetary Judgment (“Consent
Order”) [Doc. No. 5].
Federal Trade Commission (“FTC”) and Consumer
Financial Protection Bureau (collectively,
“Plaintiffs”), filed a lawsuit against Green Tree
Servicing LLC (“Green Tree”)
under Sections 5(a) and 13(b) of the Federal Trade Commission
Act (“FTC Act”), 15 U.S.C. §§ 45(a) and
53(b); the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. §§ 1692-1692p; and
the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.
§§ 1681-1681x, to obtain permanent injunctive
relief, restitution, disgorgement, and other equitable relief
for violations of the FDCPA, Section 5 of the FTC Act, and
(Compl.) [Doc. No. 1 ¶ 1]. Soon thereafter, the parties
entered into a stipulated consent order. See
(Consent Order). Green Tree was ordered to pay Plaintiffs
$48, 000, 000 to establish a redress fund (the
“Fund”), that Plaintiffs managed. (Id.
§ I). In particular, it was Plaintiffs'
responsibility to redress Green Tree's consumers on the
basis of the alleged violations. See (id.
the Consent Order established an oversight regime whereby
Plaintiffs would oversee Green Tree's compliance with the
Consent Order. For example, Green Tree must: (1) submit
compliance reports to Plaintiffs, (2) respond to requests for
additional information by Plaintiff regarding compliance
reports and compliance in general; and (3) comply with
Plaintiffs' subsequent discovery requests without court
intervention. See, e.g., (id. §§
XV, XVIII, XX). Plaintiffs “have overseen Green
Tree's compliance with the Consent Order since it was
entered in April 2015, and there were no fillings or other
activity before this Court until Dixon filed his pro
se motion on May 5, 2017.” (Green Tree Servicing
LLC's Resp. to Pro Se Non-Party Claimant Roy
Dixon's “Verified Emergency Mot. for Civil Contempt
& Inj. Relief, ” “Green Tree's
Resp.”) [Doc. No. 12 at 3].
Dixon's Motion, he requests that the Court order Green
Tree to show cause that it did not violate the Consent Order
with respect to the handling of Dixon's mortgage and
foreclosure of his property in Florida. See (Mot. at
1, 3-5). In addition to an order to show cause,
Dixon also requests that the Court stay the sale of his
Florida property and enjoin Green Tree “from taking any
further action against [his] property.” See
(id. at 5).
Court ordered the parties to respond to Dixon's Motion.
See (Text Only Order Dated Aug. 31, 2017) [Doc. No.
9]. Each of the parties to the Consent Order provided an
individual Response. See (Pl. Federal Trade
Commission's Resp. to Roy Dixon's Mot. for Civil
Contempt & Inj. Relief, “FTC's Resp.”)
[Doc. No. 11]; (Green Tree's Resp.). The FTC asserts that
Green Tree “does not appear to have violated Section V
or Section VIII [of the Consent Order], but the FTC needs
more information [from Green Tree] to address the potential
violations of Section IV and IX.” See
(FTC's Resp. at 3); see also (id. 3-7)
(FTC's arguments directed thereto).
Tree asserts that Dixon's Motion should be denied because
he lacks standing to enforce the Consent Order. (Green
Tree's Resp. at 1-2, 9-13). Specifically, Green Tree
asserts that “nothing in the Consent Order authorizes
Dixon (or any other non-party) to enforce its
provisions.” (Id. at 12), Specifically, Green
Tree argues that because Dixon is a non-party to the Consent
Order, for him to have standing he must demonstrate that the
Consent Order “intended to give [him] a legally binding
and enforceable right to [benefits under the Consent Order],
” which he has failed to do. (Id. at 11)
(internal quotation marks omitted) (first alteration in
original). Green Tree also asserts the terms of the Consent
Order preclude third party enforcement. See
(id.). In particular, sections I-III, VI, VIII, XV,
XVIII, and XX of the Consent Order allegedly support Green
Tree's position that only Plaintiffs had enforcement
rights and that consumers did not retain any individual
rights to assert claims against the Fund. (Id.).
Alternatively, Green Tree asserts that Dixon's claims are
foreclosed on the basis of res judicata and
collateral estoppel because the harms alleged by Dixon have
been adjudicated to his detriment in both federal and state
courts. See (Green Tree's Resp. at 2,
filed a Reply to these Reponses. (Third-Party Claimant Roy J.
Dixon's Reply with Suppl. Evidence Exs. in Supp.,
“Dixon's Reply”) [Doc. No. 17]. Most of
Dixon's Reply deals with the Florida federal and state
court decisions and Green Tree's alleged wrong-doing.
See generally (Dixon's Reply). Dixon provides no
rebuttals regarding Green Tree's standing argument.
See (Dixon's Reply at 10-11). With respect to
Green Tree's res judicata and collateral
estoppel arguments, Dixon's position is difficult to
decipher, but apparently he believes that the Florida state
court decisions does not have preclusive effect because the
court lacked subject matter jurisdiction. See
(id. at 10) Specifically, it is Dixon's position
that the Florida state court lacked subject matter
jurisdiction because Green Tree merged with another entity in
August 2015 and Green Tree was never substituted in the state
court action. See (id.); see also
(FTC's Resp. at 2) (mentioning the Green Tree merger).
of the procedural irregularities implicated by the manner in
which Dixon filed his Motion, this Court lacks jurisdiction
to entertain Dixon's requests for relief because he lacks
standing. Cf. (Green Tree's Resp. at 7)
(suggesting that Dixon's Motion be denied because he did
not timely file a motion to intervene under Rule 24 of the
Federal Rules of Civil Procedure and because he did not
properly serve his Motion). In other words, even if Dixon had
properly brought a motion to intervene under the Federal
Rules of Civil Procedure, the Court could not entertain it
because Dixon has no standing to effectuate the relief that
he seeks. As a result, this Court recommends Dixon's
Motion be denied. Because Dixon's Motion fails on the
threshold issue of standing, this Court does not address
Green Tree's other arguments related to the Rule 24 of
the Federal Rules of Civil Procedure, res judicata,
or collateral estoppel.