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Eleventh Circuit

April Fools Parade of Undesirable Lawyers in Florida

LIF provides a detailed analysis of sanctioned lawyers in April 2021’s list of disciplined attorneys and who hold membership with the Florida Bar.

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Lawyers Behavin’ Badly in the Sunshine State (April 2021 List)

The Florida Supreme Court in recent court orders disciplined 17 attorneys, disbarring three, revoking the licenses of one, suspending 10, and reprimanding three.

MAR 17, 2021 | REPUBLISHED BY LIT: MAR 17, 2021

The public reprimand falls short of the necessary discipline in this case. Allen lost his position at his law firm as a result of the complaint yet the Florida Bar’s final disposition is a public slap? We disagree with this sanction.

Curtis Lee Allen, P.O. Box 16553, Temple Terrace, public reprimand and directed to attend a Professionalism Workshop effective immediately following a February 4 court order. (Admitted to practice: 1994)

In one matter, Allen became unprofessional in his questioning of a witness who he believed was repeatedly lying.

In another case, the trial court entered an order stating it had to intervene and set case management directives for both Allen and opposing counsel due to their unprofessional behavior toward each other.

In a third matter, the trial court entered an order finding that Allen engaged in unprofessional and aggressive behavior.

(Case No: SC20-1470)

The “Amlong” case has a lengthy history including appeals to the Eleventh Circuit and a very hefty legal bill at the end of it all for the Amlongs. In April’s Florida Bar list herein you’ll see sanctions for Bill Amlong and  attorney Jennifer Daley – all stemming from this one case.

William Robert Amlong, 500 N.E. 4 St., Suite 200, Ft. Lauderdale, suspended for 91 days effective 30 days following a February 4 court order. (Admitted to practice: 1985)

Amlong failed to properly supervise his associate and failed to take action to ensure that his associate complied with discovery requests and honestly advise the parties and the court of the facts.

Amlong acted in bad faith in pursuing frivolous claims and concealing evidence in a manner that vexatiously multiplied the proceedings.

(Case No: SC17-150)

Carl Robert Anderson, 5627 W. Cavedale Dr., Phoenix, AZ, suspended for 91 days effective 30 days following a February 16 court order. (Admitted to practice: 2005)

In Arizona, Anderson represented a homeowners association that was managed by a property management company.

He allowed the employees of that company to perform secretarial and paralegal work for him. In some instances, the work was for cases unrelated to the HOA matters.

In cases, Anderson failed to timely respond to discovery requests and failed to notify the clients of the requests.

Judgments were subsequently entered against his clients and he failed to notify them of the judgments.

This is a reciprocal discipline action based on the order filed by the State Bar of Arizona.

(Case No: SC19-422)

Brandon Joshua Barker, 3300 S. Dixie Hwy., Suite 1-775, West Palm Beach, suspended effective 30 days following a February 11 court order. (Admitted to practice: 2012)

The Florida Supreme Court ordered Barker to show cause by December 28, 2020.

Barker failed to file a response and was held in contempt and suspended until he has fully responded in writing to an official bar inquiry.

(Case No: SC20-1790)

Jennifer E. Daley, 500 N.E. 4 St., Fl. 2, Ft. Lauderdale, suspended for 91 days effective 30 days following a February 4 court order. (Admitted to practice: 1990)

Daley made false statements to opposing counsel, failed to disclose material facts, and obstructed opposing counsel’s access to evidence.

She also acted in bad faith in violation of 28 U.S.C. §1927.

(Case No: SC17-142)

David A. Fernandez, 4705 26 St. W., Bradenton, disciplinary revocation with leave to apply for readmission in five years effective 30 days following a February 18 court order. (Admitted to practice: 2010)

Fernandez was hired to serve as the closing agent and title agent for the sale of a home and was found guilty of multiple rules.

In additional matters pending at the grievance committee and staff level, Fernandez was accused of missing deadlines, failure to communicate with clients, engaging in a conflict of interest, being disqualified and removed as counsel in a matter due to a conflict, misusing client funds being held in his trust account, and conduct involving dishonesty or misrepresentation.

(Case No: SC20-670)

Andrew C. Hill, 11916 Trevally Loop, Apt. 311, Trinity, suspended effective 30 days following a February 3 court order. (Admitted to practice: 2007)

Hill was held in contempt of the court’s order dated June 27, 2019, due to a finding of probable cause for misconduct that occurred during his probation period in violation of Rule 3-5.1(c).

(Case No: SC20-1754)

Stephen Hillebrand, 46 N. Washington Blvd., Suite 20, Sarasota, disbarred effective 30 days following a February 4 court order. (Admitted to practice: 1983)

Hillebrand failed to diligently represent three clients;

failed to reasonably communicate with the clients;

and failed to complete the client’s representation to the detriment of the clients.

Hillebrand failed to appear at his scheduled sworn statement and failed to participate in the disciplinary proceedings.

(Case No: SC20-686)

Andrew David Hodes, 20512 Via Marisa, Boca Raton, suspended for 60 days and ordered to attend The Florida Bar’s Ethics School effective 30 days following a January 21 court order. (Admitted to practice: 2011)

Hodes drafted a quit claim deed for his client.

In error, Hodes listed the grantee as the client/petitioner, rather than the decedent’s brother as their retainer spelled out. The decedent’s son signed the incorrect deed and had it notarized.

After Hodes received the signed and notarized deed, he changed the date on the quit claim deed and changed the name of the grantee from the petitioner to the decedent’s brother.

Hodes then recorded the altered deed.

Thereafter, civil litigation was initiated regarding the ownership of the property, and the court found that Hodes committed acts of fraud, misrepresentation, forgeries and/or material alterations regarding the subject property and title to same.

Hodes’ intent was not to deceive or make a material misrepresentation, but rather, to correct the aforementioned errors that Hodes had made on the deed.

(Case No: SC20-1163)

Diane Marie McGuire, 42 Snapper Ave., Key Largo, public reprimand effective immediately following a February 11 court order. (Admitted to practice: 1990).

McGuire was found in contempt of court for failing to respond to official Bar inquiries

(SC20-1472).

William E. McManus, Jr., 119 E Watauga Ave., Johnson City, TN., disbarred effective March 22 following a February 18 court order. (Admitted to practice: 2002)

McManus was charged with bribery of a public servant, a felony offense in Tennessee.

McManus consented to disbarment in Tennessee and Florida.

This is a reciprocal discipline action based on the Tennessee Supreme Court’s order dated June 26, 2020.

(Case No: SC20-1694)

This lawyer’s residence is valued at $2.4M. How much of that purchase price came from this lawyer’s thievin’ antics? Time will tell but we start with just shy of $800k of misappropriation in the Bar petition below.

Enrique Miranda, 7820 SW 117th St., Miami, suspended by petition for emergency suspension effective immediately following a February 11 court order. (Admitted to practice: 1984)

Miranda presents a clear and present harm to the public for the inappropriate disbursement of escrow funds, misrepresentations about the funds held in trust, and violation of the fiduciary duty owed to both the remitter and the beneficiary of the funds deposited.

A petition for emergency suspension is granted by the Florida Supreme Court when The Florida Bar presents clear and convincing evidence that a lawyer appears to be causing great public harm (see Rule 3-5.2(a)) and also constitutes a formal complaint so that the matter is fully investigated and final disciplinary action is ordered.

(Case No: SC21-183)

Theft of Funds (Escrow)

PETITION FOR EMERGENCY SUSPENSION

This petition of The Florida Bar seeks emergency relief and requires the immediate attention of the court pursuant to Rule 3-5.2 of the Rules Regulating The Florida Bar. The Florida Bar seeks the emergency suspension of Enrique Miranda, Attorney No. 436119, from the practice of law in Florida based on facts that establish clearly and convincingly that Enrique Miranda appears to be causing great public harm as will be shown by facts supported by the affidavit of Mr. Thomas C. Duarte, Staff Auditor for the Miami Branch of The Florida Bar, attached hereto as Composite Exhibit “1,” as follows:

1. The filing of this Petition for Emergency Suspension has been authorized by the Executive Director of The Florida Bar.

2. Respondent, Enrique Miranda, is and at all times hereinafter mentioned, was a member of The Florida Bar and subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.

3. Respondent is currently the subject of two bar disciplinary matters which have been assigned The Florida Bar File Nos. 2020- 70,563(11D)(MES) and 2021-70,151(11D)(MES).

4. The bar’s investigation of this matter has indicated that respondent represents the clear and present harm contemplated by Rule 3- 5.2, and that his emergency suspension should be effected forthwith.

The Florida Bar File No. 2020-70,563(11D)(MES)

5. In the Florida Bar File No. 2020-70,563(11D)(MES), respondent agreed to act as escrow agent pursuant to the terms of a funds escrow agreement between Xeon Holding Limited (Complainant) and C.L. Campos Assesoria Empresarial (Campos). The agreement set forth the terms and conditions upon which respondent could disburse the $200,000.00 deposited into his trust account pursuant to the agreement.

6. The agreement required respondent to disburse $100,000.00 to Campos for pre-transaction expenses, and further required respondent to hold $95,000.00 in his trust account until all conditions precedent were met. The remaining $5,000.00 represented respondent’s fee.

7. Rather than complying with the terms of the agreement, respondent disbursed nearly all of the deposited funds within fifteen days of receipt.

8. He did not disburse the first $100,000.00 to Campos for the purpose of paying pre-transaction expenses as directed by the terms of the agreement, but rather disbursed $186,000.00 to various persons and entities who appear to be unrelated to the transaction governed by the agreement.

9. When the conditions precedent did not materialize for the disbursement of the remainder of the funds, complainant directed respondent to refund the $95,000.00 that was supposed to be remaining in trust. Respondent replied to this request by indicating that he was ill and would return the funds when he was well. Thereafter, respondent stopped responding to communications from counsel for complainant.

10. Upon inquiry by the bar, respondent made misrepresentations regarding the status and location of the $95,000.00 he was required to hold in trust. Respondent stated that on the date the condition precedent was due to occur, he was holding $98,615.00 in trust.

The Staff Auditor’s review of respondent’s trust account demonstrated this to be false. The balance in the trust account on the relevant date was $13,465.00.

Indeed,throughout the entirety of the six month period in which the investor was attempting to secure a refund of the funds that were to remain in trust, the balance in respondent’s trust account was insufficient to refund the amount owed, ranging instead between $4,429.00 and $13,465.00.

11. Approximately six months after complainant began requesting a refund of the $95,000.00, respondent finally returned same from funds recently deposited into his account from a law firm that appears to be unrelated to the transaction and/or escrow agreement.

The Florida Bar File No. 2021-70,151(11D)(MES)

12. In the Florida Bar File No. 2021-70,151(11D)(MES), while the bar’s investigation into the above described misconduct was actively pending, respondent received a deposit into his trust account in the amount of $581,008.79.

13. Thereafter respondent received what purported to be a contract governing these funds from Mr. Aldo Algandona, a person previously known to respondent. The purported contract indicated the funds were deposited as part of a renewable energy project that Algandona was developing in Panama, and that the funds were deposited for his benefit.

14. Respondent made no effort to communicate with the other party to the transaction. Instead, respondent relied solely on Algandona’s representations and disbursed the funds to him.

15. However, these funds were not the subject of a valid contract, but rather resulted from a wire fraud scheme. The couple remitting the funds believed they were making a deposit on the purchase of a home in North Carolina. The fraudster in this case hacked into the email account of the law firm/closing agent and changed the wiring instructions from the correct account to respondent’s trust account.

16. As escrow agent, respondent owed a fiduciary duty to both the remitter and the beneficiary of the funds deposited. See ie.,The Florida Bar v. Joy, 679 So. 2d 1165, 1167 (Fla. 1996).1
As such, minimal due diligence1 In Joy, this Court held, “Regardless of the escrow agent’s other relationships or duties to the principal parties (lawyers often hold funds in escrow where their client is one principal and some other non-client is another principal party) when principal parties agree upon an escrow agent, by undertaking to act as such, the escrow agent establishes a new legal relationship to the principal parties and by an expressed agreement or by agreement implied in law, agrees to certain basic inherent matters.

The relationship established is that of principal and agent and involves the escrow agent being an agent of, and owing a fiduciary duty to, all of the principal parties.

In the absence of an express agreement, written or oral, the law will imply from the circumstances of the escrow that the agent has undertaken a legal obligation (1) to know the provisions and conditions of the principal agreement concerning the escrowed property, and (2) to exercise reasonable skill and ordinary diligence in holding and delivering required respondent to make contact with the party remitting the funds and to confirm his or her understanding of the purpose and agreement regarding the funds.

17. Had respondent conducted the due diligence required of a fiduciary, the fraud in this transaction would have been discovered before the funds were disbursed from respondent’s trust account. At this time, although the bank was able to recover a portion of the funds respondent improperly disbursed, $5,934.79 of the defrauded homebuyer’s funds remain unaccounted for.
Conclusion

18. Respondent’s abject failure to uphold his fiduciary obligations to the remitter of the funds in both of the above referenced matters demonstrates that he represents the clear and present harm contemplated by Rule 3-5.2, and that his emergency suspension should be effected forthwith. This is especially true here, where he improperly disbursed the funds in the second case at a time when he was already under investigation for improper disbursements from his trust account in the first possession of the escrowed property (i.e., to disburse the escrowed funds) in strict accordance with the principals’ agreement.” matter, and where he made misrepresentations to the bar regarding the transaction.

19. The enclosed affidavit of Mr. Thomas C. Duarte is used by the bar to support this Petition for Emergency Suspension.

20. By reason of the foregoing, respondent has violated the following Rules Regulating The Florida Bar: 3-4.3 (Misconduct and Minor Misconduct), 4-1.15 (Safekeeping Property), 4-8.1 (Bar Admission and Disciplinary Matters), 4-8.4(c) (A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 5-1.1 (Trust Accounts).

WHEREFORE, based on the aforementioned facts, the bar asserts respondent has caused, or is likely to cause, immediate and serious harm to clients and/or the public and that immediate action must be taken for the protection of respondent’s clients and the public. Therefore, pursuant to Rule 3-5.2, The Florida Bar respectfully requests this court to:

A. Suspend respondent from the practice of law until further order of this court.

B. Order respondent to accept no new clients from the date of this Court’s order and to cease representing any clients after 30 days from the date of this Court’s order. Within the 30 days from the date of this Court’s order, respondent shall wind down all pending matters and shall not initiate any litigation on behalf of clients. Respondent shall withdraw from all representation within 30 days from the date of this Court’s order. In addition, respondent shall cease acting as personal representative for any estate, as guardian for any ward, and as trustee for any trust and will withdraw from said representation within thirty days from the date of this court’s order and will immediately turn over to any successor the complete financial records of any estate, guardianship or trust upon the successor’s appointment.

C. Order respondent to furnish a copy of the suspension order to all clients, opposing counsel and courts before which Enrique Miranda is counsel of record as required by Rule 3-5.1(h) and to furnish Staff Counsel with the requisite affidavit listing all clients, opposing counsel and courts so informed within 30 days after receipt of the court’s order.

D. Order respondent to refrain from withdrawing or disbursing any money from any trust account related to respondent’s law practice until further order of this court, a judicial referee appointed by this court or by order of the Circuit Court in an inventory attorney proceeding instituted under Rule 1-3.8, and to deposit any fees, or other sums received in connection with the practice of law or in connection with respondent’s employment as a personal representative, guardian or trustee, paid to respondent after issuance of this Court’s order of emergency suspension, into a specified trust account from which withdrawal may only be made in accordance with restrictions imposed by this Court. Further, respondent shall be required to notify bar counsel of The Florida Bar of the receipt and location of said funds within 30 days of the order of emergency suspension.

E. Order respondent to not withdraw any money from any trust account or other financial institution account related to respondent’s law practice or transfer any ownership of any real or personal property purchased in whole or in part with funds properly belonging to clients, probate estates for which respondent served as personal representative, guardianship estates for which respondent served as guardian, and trusts for which respondent served as trustee without approval of this court, a judicial referee appointed by this court or by order of the Circuit Court in an inventory attorney proceeding instituted under Rule 1-3.8.

F. Order respondent to notify, in writing, all banks and financial institutions where the respondent maintains an account related to the practice of law, or related to services rendered as a personal representative of an estate, or related to services rendered as a guardian, or related to services rendered as a trustee, or where respondent maintains an account that contains funds that originated from a probate estate for which respondent was personal representative, guardianship estate for which respondent was guardian, or trust for which respondent was trustee, of the provisions of this Court’s order and to provide all the aforementioned banks and financial institutions with a copy of this Court’s order. Further, respondent shall be required to provide bar counsel with an affidavit listing each bank or financial institution respondent provided with a copy of said order.

G. Order respondent to immediately comply with and provide all documents and testimony responsive to a subpoena from The Florida Bar for trust account records and any related documents necessary for completion of a trust account audit to be conducted by The Florida Bar.

H. Authorize any Referee appointed in these proceedings to determine entitlement to funds in any trust account(s) frozen as a result of an Order entered in this matter.

Respectfully submitted,

The two year suspension is below par for this case. This is the Cays Club Ponzi Scheme which earned the key directors lengthy sentencing, e.g. 40 years in jail. This lawyer was an integral part of the fraud replacing old funds with new investors. He should be in jail, but receives only 2 years suspension. Perhaps this is keeping with the fact that Donald Trump pardoned the 40 year directors sentence before leaving office in January 2021. We believe disbarment was the only sanction that would be acceptable. This is a “political” sanction in our personal opinion and one that revolves around ‘real estate investments’. Enough said.

Charles Paul-Thomas Phoenix, P.O. Box 742, Sanibel, suspended for two years effective 30 days following a January 28 court order. (Admitted to practice: 2001)

Phoenix was counsel for a vacation rental management company that was operating as a Ponzi scheme.

Phoenix signed a non-prosecution agreement with the U.S. Attorney’s Office agreeing to cooperate in the prosecution of the company’s executives in exchange for not being prosecuted himself.

In the agreement, Phoenix admitted to certain conduct constituting rule violations, including making false statements and failing to timely withdraw from his representation of the company despite his knowledge of its illegal activity.

(Case No: SC17-585)

Michael Anthony Saracco, 520 Brevard Ave., Cocoa, suspended for 45 days effective April 12 following a February 11 court order. (Admitted to practice: 2012)

Saracco failed to provide diligent and competent representation to a client in connection with filing an action against the client’s mortgage lender and failed to keep the client reasonably informed regarding the legal matter.

Saracco failed to respond to a motion to dismiss in the matter as well as an order to show cause, resulting in dismissal of the case without prejudice.

At his client’s request, Saracco filed a new lawsuit in federal court to preserve the claim. The court ultimately permitted Saracco to withdraw from the case.

Saracco provided a full refund to the client.

(Case No: SC21-141)

S A Siddiqui, 405 Gianna Way, St. Augustine, suspended for three years effective 30 days following a February 1 court order. (Admitted to practice: 2005)

In one matter, Siddiqui failed to competently and timely pursue the client’s family law matter and misrepresented to the client the status of the case.

In a second matter, Siddiqui failed to competently represent the client in his criminal case and failed to appear for jury selection.

In a third matter, Siddiqui failed to appear for court and misrepresented to the court that he did not receive notice of the court hearing.

(Case No: SC19-653)

Erik Donald Ulano, 4309 Bluewater Ave., Spring Hill, disbarred effective immediately following a February 18 court order. (Admitted to practice: 2002)

Beginning on October 1, 2018, Ulano became ineligible to practice law in Florida for not paying his Bar membership fees for fiscal year 2018-2019.

While he was ineligible to practice, Ulano repeatedly appeared in court in Hernando County on behalf of his client.

Ulano also failed to respond to the Bar’s inquiries and failed to participate in the disciplinary proceeding.

(Case No: SC20-749)

LIF is absolutely appalled at the sanction in this case.

Francisca Johanna Wider, 10843 White Aspen Ln., Boca Raton, public reprimand and attendance at The Florida Bar’s Ethics School effective immediately following a February 1 court order. (Admitted to practice: 1998)

In 2014, Wider prepared a last will and testament naming herself as the personal representative and providing for a sole beneficiary of the estate.

On June 29, 2016, the testator died.

Wider telephoned the sole beneficiary and informed her that she was “mentioned” in the will but did not tell the woman that she was the sole beneficiary of the estate.

Thereafter, Wider took possession of the entire contents of the deceased’s condominium and arranged for the removal of all the contents without the consent of the beneficiary.

Misrepresentations were made by Wider regarding the beneficiary’s status as sole beneficiary.

(Case No: SC19-317)

“The Locksmith With a Will”

Francisca J. Wider, Attorney

Francisca was born and raised in The Netherlands before coming to the United States to earn her Juris Doctorate from Nova Southeastern University’s Shephard Broad Law Center.

She was formerly an Assistant General Counsel with the State of Florida, Department of Banking & Finance and the Office of Financial Regulation, providing regulatory oversight of Florida’s financial services providers.

At Schwartz & Wider, P.A., Francisca focuses on probate and trust administration, as well as comprehensive estate and medicaid planning.

FOR INFORMATIONAL PURPOSES ONLY

(Schwartz is not part of the Bar Complaint, however, he was a witness on legal documents)

Richard A. Schwartz

Richard Schwartz is a retired Miami-Dade County Court Judge.

He is a Florida native, graduated from Miami Beach High School, University of Florida and the University of Miami School of Law.

Since retiring from the bench and moving to Boca Raton, he has focused on elder law and estate and medicaid planning.

COMPLAINT OF THE FLORIDA BAR

The Florida Bar, Complainant, files this Complaint against Francisca Johanna Wider, Respondent, pursuant to the Rules Regulating The Florida Bar and alleges:

1. Respondent is and, at all times mentioned in the Complaint, was a member of The Florida Bar, admitted on October 6, 1998 and is subject to the jurisdiction of the Supreme Court of Florida.

2. Respondent resided and practiced law in Palm Beach County, Florida, at all times material.

3. The Fifteenth Judicial Circuit Grievance Committee “C” found probable cause to file this Complaint pursuant to Rule 3-7.4, of the Rules Regulating The Florida Bar, and this Complaint has been approved by the presiding member of that committee.

4. In 2014, Respondent prepared Inge W. Fruth’s Last Will and Testament (hereinafter the “will”). (Attached hereto as TFB’s Exhibit 1 is a copy of the will.)

5. Respondent was named the Personal Representative in Ms. Fruth’s will.

6. Grace Barona, a neighbor and friend of Ms. Fruth, was named as the sole beneficiary of Ms. Fruth’s estate in Ms. Fruth’s will.

7. On June 29, 2016, Inge Fruth passed away.

8. In July of 2016, Respondent telephoned Ms. Barona and informed her that she (Ms. Barona) was “mentioned” in the will and that Respondent would call Ms. Barona in three weeks, upon Respondent’s return from vacation.

9. Unable to locate a key to Ms. Fruth’s condominium, Respondent used a locksmith to have a key made.

10. Respondent advised the property manager that there were no heirs or beneficiaries and since she (Respondent) was the Personal Representative, she would handle the condominium unit and its contents.

11. Without authorization, Respondent took possession of the entire contents of Inge Fruth’s condominium and arranged for the removal of all of the contents.

12. In August of 2016, after the contents of Ms. Fruth’s condominium had been removed, Respondent telephoned Ms. Barona and informed her that she was the sole beneficiary of Ms. Fruth’s estate.

13. On or about August 13, 2016, Respondent arrived at Ms. Barona’s place of residence. Without full and adequate disclosure of the consequences of the execution of the document, Respondent procured Ms. Barona’s signature on a document titled, Joinder, Waiver and Consent (hereinafter “Waiver and Consent”). (Attached hereto as TFB’s Exhibit 2 is a copy of the Waiver and Consent.)
14. Ms. Barona signed the Waiver and Consent with only a limited explanation by Respondent that the signature on the form was necessary to probate Ms. Fruth’s will.

15. The Waiver and Consent waived and consented to the part of the Petition for Administration which sought Respondent’s appointment as the Personal Representative.

16. On August 15, 2016, Respondent filed the Petition for Administration in the Seventeenth Judicial Circuit in and for Broward County, Case No. PRC-16- 0003527.

17. On August 18, 2016, Respondent filed the Waiver and Consent.

18. Ms. Barona retained legal counsel who advised her that the form she had signed provided Respondent consent to serve as the Personal Representative of the estate.

19. On August 24, 2016, Ms. Barona’s attorneys filed a document titled, Beneficiary Grace Barona’s Notice of Withdrawal of Waiver and Consent to the Extent Consent was Given to the Appointment of Francisca Wider to be Appointed Personal Representative (hereinafter “Notice of Withdrawal”).

20. On September 6, 2016, Ms. Barona’s attorneys filed a document titled, Beneficiary Grace Barona’s Objections and Motion to Strike from Ex Parte Calendar the Application of Francisca Wider for Appointment as Personal Representative (hereinafter “Objection to Appointment”).

21. The Notice of Withdrawal and the Objection to Appointment sought the withdrawal of the Waiver and Consent and objected to Respondent’s appointment as the Personal Representative based on Respondent’s failure to disclose material information and Respondent’s actions of removing valuable items in Ms. Fruth’s home without any accountability. (Attached hereto as TFB’s Composite Exhibit 3 are the Notice of Withdrawal and the Objection to Appointment.)

22. On December 8, 2016, the parties entered into a Settlement Stipulation wherein Ms. Barona’s legal counsel would replace Respondent as the Personal Representative, among other things.

23. In response to Ms. Barona’s Bar Complaint, Respondent takes the position that the Settlement Stipulation bars Ms. Barona from filing a Bar Complaint and that by filing a Bar Complaint, Ms. Barona has breached that agreement. (Attached hereto as TFB’s Composite Exhibit 4 are Respondent’s response to the Bar Complaint dated May 22, 2017 and the Settlement Stipulation.)

24. In furtherance of this position, in Respondent’s response to the Bar Complaint, Respondent stated, in pertinent part:
It is my position that this stipulation precludes Ms. Barona from pursuing any actions against me for anything that may have happened or was alleged to have happened prior to the execution of the Stipulation. There is nothing in the complaint that relates to any actions or alleged actions by me that occurred after the execution of the agreement. Therefore, this complaint by Ms. Barona should be dismissed.

(See p. 2 of Respondent’s response to the Bar Complaint in TFB’s Composite Exhibit 4.)

25. The language in the Settlement Stipulation that Respondent relies on reads as follows:

10. The Barona Parties and the Fruth Estate hereby remise, release, acquit, satisfy, and forever discharge the Wider Parties of and from any and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever… from the beginning of the world to the day of these presents, including but not limited to the Fruth Estate proceedings, except as expressly set forth in this Settlement Stipulation. (See ¶ 10 of the Settlement Stipulation in TFB’s Composite Exhibit 4.)

26. On October 28, 2017, in response to additional inquiries by the Bar, Respondent further stated, “Ms. Barona acted in bad faith by breaching this agreement. Depending on the outcome of this matter, I will consider what, if any, action to take regarding this willful breach of contract.” (See p. 1 of Respondent’s October 28, 2017 letter to the Bar, attached hereto as TFB’s Exhibit 5.)

27. Threatening to retaliate against a person who filed a bar complaint and/or entering into an agreement with a client to not write to The Florida Bar or to voluntarily withdraw a bar complaint if already submitted, is conduct prejudicial to the administration of justice.

28. By reason of the foregoing, Respondent has violated the following Rules Regulating The Florida Bar: 3-4.2 [Violation of the Rules of Professional Conduct as adopted by the rules governing The Florida Bar is a cause for discipline.]; 3-4.3 [Misconduct and Minor Misconduct]; 4-1.3 [A lawyer shall act with reasonable diligence and promptness in representing a client.]; 4-4.1(a) [In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.]; 4-8.4(a) [A lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.]; 4-8.4(c) [A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation ….];
4-8.4(d) [A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice ….]; and 5-1.1(e) [On receiving funds or other property in which a client or third person has an interest, a lawyer must promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer must promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, on request by the client or third person, must promptly render a full accounting regarding the property.].

WHEREFORE, The Florida Bar prays Respondent will be appropriately disciplined in accordance with the provisions of the Rules Regulating The Florida Bar as amended.

Respectfully submitted,

Barona’s Withdrawal of Waiver and Consent to Wider’s Appointment as Personal Representative

1. The Barona Waiver and Consent was signed by Barona without full and adequate disclosure of the consequences of the execution of the document and the ethical considerations regarding the preparation of a Will by an attorney which also names that same attorney to be the personal representative of the decedent’s estate.

Barona’s executed her signature on August 13, 2016 Waiver and Consent with only a limited explanation by Wider (with Barona under a time pressure few minutes on her way to work) that the signature on the form was necessary to probate the Will of the Decedent.

2. Barona, who is the sole beneficiary of the Estate, now withdraws and cancels her August 13, 2016 Waiver and Consent to the limited extent her Waiver and Consent waived and consented to that part of the Petition which seeks the appointment of Wider as the Personal Representative of the Estate.

3. Barona’s limited withdrawal of the Waiver and Consent will not prejudice the parties or the Court because her withdrawal is being filed with the Clerk and the Court and is being served upon the parties prior to the Court acting upon the Petition.

4. Barona was not sophisticated or experienced with Court proceedings on August 13, 2016. Based upon subsequently receiving an explanation (from counsel other than Wider or a member of her law firm) of the issues regarding the circumstances of when an attorney can ethically and legally prepare a Will which names that same attorney as the personal representative, she has determined she signed the Waiver and Consent in error to extent she is claimed to have consented to the appointment of Wider as personal representative.

Objection and Motion to Strike as to Wider’s Appointment

5. The Decedent’s Will which is the subject of the Petition names Wider as the Personal Representative (Article V.A, at page 2). The cover page of the Will also states it was “prepared by” Wider. Wider also notarized the execution of the Will (at page 7) and one of the witnesses was Richard Schwartz, a member of Wider’s law firm.

6. Wider’s role in being named by her client, Fruth, as the putative Personal Representative of Fruth’s Estate, calls into question the applicable conflict of interest provisions of Florida Bar Rules 4-1.7 and 4-1.B(a) of the Rules of Professional Conduct (full disclosure to client, client to be advised of desirability of seeking independent counsel, client to give informed consent, with a writing signed by the client, etc.), as well as the official commentary thereto.

7. The papers submitted by Wider in connection with her Petition and ex parte application for the granting the Petition do not reflect any documentation regarding the conflict of interest disclosures and client consent of the type recommended or required by Rule 4-1.B(a) for the Court to be able to appoint Wider as Personal Representative.

8. Barona submits that the matter of Wider’s appointment as Personal representative should not be treated as an ex parte matter. Unless and until those issues are properly presented and  explored — in a contested, evidentiary hearing — Wider should not be appointed as Personal Representative.

9. Barona is also concerned that valuable items in the Decedent’s home have been disposed of by Wider without any accountability.

Barona only learned recently from Wider herself that Wider got access to the locked apartment (under possibly questionable circumstances), after her entry she changed the locks, and that Wider claims to have disposed of the personal property and papers inside the apartment under circumstances that did not make sense to Barona, based on Barona’s knowledge of Fruth.

Barona is also concerned about other property of Fruth being placed at risk or being disposed of in a manner which would be contrary to Barona’s interests or desires.

WHEREFORE, Barona prays for entry of an Order acknowledging her withdrawal of the Waiver and Consent to the extent of the appointment of Wider as Personal Representative of the Estate, sustaining her objection and granting her motion to strike as to the appointment of Wider as Personal Representative at the August 30, 2016 ex parte calendar or otherwise, and for any other appropriate relief.

As an official arm of the Florida Supreme Court, The Florida Bar and its Department of Lawyer Regulation are charged with administering a statewide disciplinary system to enforce Supreme Court rules of professional conduct for the more than 108,000 members of The Florida Bar. Key discipline case files that are public record are posted to attorneys’ individual online Florida Bar profiles. Information on the discipline system and how to file a complaint are available at www.floridabar.org/attorneydiscipline.

Court orders are not final until time expires to file a rehearing motion and, if filed, determined. The filing of such a motion does not alter the effective date of the discipline.

Disbarred lawyers may not re-apply for admission for five years. They are required to go through an extensive process that includes a rigorous background check and retaking the Bar exam. Attorneys suspended for periods of 91 days and longer must undergo a rigorous process to regain their law licenses including proving rehabilitation. Disciplinary revocation is tantamount to disbarment.

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Eleventh Circuit

Attorney Lee Segal v. That German Bank and MD Fl. Still Rages On, In This Case.

The judiciary have been moving the motion for sanctions and attorney fees against Segal around the courts and it’s now landed into this case. Once LIF publishes, no doubt it will move again.

Published

on

BCP Management, LLC v. Deutsche Bank National Trust Company

(8:21-cv-00276-CPT)

District Court, M.D. Florida

NOV 9, 2021 | REPUBLISHED BY LIT: DEC 18, 2021

ORDER

Under 28 U.S.C. § 455, a judge must disqualify herself in any proceeding in which her impartiality might reasonably be questioned or if the judge has personal knowledge of disputed evidentiary facts concerning the proceeding.
28 U.S.C. § 455(a) & (b)(1).

When proper grounds exist, a judge has an affirmative and self-enforcing obligation to recuse herself sua sponte.

United States v. Kelly, 888 F.2d 732, 744 (11th Cir. 1989).

Today, I presided over a settlement conference for this case. (Doc. 53).

During the settlement conference, at which the parties reached an impasse, I became privy to certain confidential information.

Consequently, recusal is warranted.

The Clerk is directed to reassign this case to another magistrate judge by random draw and provide notice to the parties of the new magistrate judge.

ORDERED in Tampa, Florida on November 9, 2021.

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U.S. District Court
Middle District of Florida (Tampa)
CIVIL DOCKET FOR CASE #: 8:21-cv-00276-CPT

BCP Management, LLC v. Deutsche Bank National Trust Company
Assigned to: Magistrate Judge Christopher P. Tuite
Demand: $860,000

Case in other court:  Eighteenth Judicial Circuit Court, 20-CA-47023

Cause: 28:1441 Notice of Removal- Racketeering (RICO)

Date Filed: 02/02/2021
Date Terminated: 06/08/2021
Jury Demand: Plaintiff
Nature of Suit: 470 Racketeer/Corrupt Organization
Jurisdiction: Diversity
Plaintiff
BCP Management, LLC
as Trustee for 11717 81st Place Land Trust
represented by Lee Segal
Segal & Schuh Law Group, PL
18167 US Hwy 19 N Ste 100
Clearwater, FL 33764
727-824-5775
Fax: 888-672-7347
Email: lee@segalschuh.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
V.
Defendant
Deutsche Bank National Trust Company
as Trustee, on behalf of the Registered Holders of GSAMP Trust 2005-HE3, Mortgage Pass-Through Certificates, Series 2005-HE3
represented by Benjamin Bruce Brown
Quarles & Brady, LLP
Suite 300
1395 Panther Ln
Naples, FL 34109-7874
239/659-5026
Fax: 239/213-5426
Email: benjamin.brown@quarles.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDJoseph T. Kohn
Quarles & Brady, LLP
Suite 300
1395 Panther Ln
Naples, FL 34109-7874
239/262-5959
Fax: 239/213-5599
Email: joseph.kohn@quarles.com
ATTORNEY TO BE NOTICED

 

Date Filed # Docket Text
11/16/2021 56 NOTICE by Deutsche Bank National Trust Company of Impasse at Settlement Conference (Kohn, Joseph) (Entered: 11/16/2021)
11/10/2021 55 Case Reassigned to Magistrate Judge Christopher P. Tuite. New case number: 8:21-cv-276-CPT. Magistrate Judge Amanda Arnold Sansone no longer assigned to the case. (JNB) (Entered: 11/10/2021)
11/09/2021 54 ORDER of recusal. Signed by Magistrate Judge Amanda Arnold Sansone on 11/9/2021. (SFC) (Entered: 11/09/2021)
11/09/2021 53 Minute Entry. Virtual Proceedings held before Magistrate Judge Amanda Arnold Sansone: SETTLEMENT CONFERENCE held on 11/9/2021. Court declares an impasse. (Via Zoom) (CDM) (Entered: 11/09/2021)
11/08/2021 52 ENDORSED ORDER taking judicial notice of 32 Exhibits for Defendant’s Motion for Sanctions. Signed by Magistrate Judge Amanda Arnold Sansone on 11/8/2021. (SFC) (Entered: 11/08/2021)
11/01/2021 51 ORDER scheduling settlement conference. Settlement Conference set for 11/9/2021 at 10:00 AM in Zoom Video Conference before Magistrate Judge Amanda Arnold Sansone. See order for details. Signed by Magistrate Judge Amanda Arnold Sansone on 11/1/2021. (SFC) (Entered: 11/01/2021)
10/29/2021 50 NOTICE by Deutsche Bank National Trust Company re 47 Order directing compliance Amended Joint Notice of Availability for Status Conference (Kohn, Joseph) (Entered: 10/29/2021)
10/29/2021 49 NOTICE by Deutsche Bank National Trust Company re 47 Order directing compliance JOINT NOTICE OF AVAILABILITY FOR SETTLEMENT CONFERENCE (Kohn, Joseph) (Entered: 10/29/2021)
10/28/2021 48 Minute Entry. Virtual Proceedings held before Magistrate Judge Amanda Arnold Sansone: STATUS CONFERENCE held on 10/26/2021. (Via Zoom) (CDM) (Entered: 10/28/2021)
10/26/2021 47 ORDER directing parties to confer re: scheduling a settlement conference for 31 Motion for Sanctions and Attorneys Fees. See order for details. Response due 10/29/2021 at noon. Signed by Magistrate Judge Amanda Arnold Sansone on 10/26/2021. (SFC) (Entered: 10/26/2021)
10/07/2021 46 ORDER setting status conference for 10/26/2021 at 02:00 PM in Zoom Video Conference before Magistrate Judge Amanda Arnold Sansone. Signed by Magistrate Judge Amanda Arnold Sansone on 10/7/2021. (SFC) (Entered: 10/07/2021)
10/05/2021 45 NOTICE by Deutsche Bank National Trust Company re 44 Order setting status conference JOINT NOTICE OF AVAILABILITY FOR STATUS CONFERENCE (Kohn, Joseph) (Entered: 10/05/2021)
10/04/2021 44 ORDER directing parties to confer re: scheduling a status conference for 31 Motion for Sanctions and Attorneys Fees. See order for details. Signed by Magistrate Judge Amanda Arnold Sansone on 10/4/2021. (SFC) (Entered: 10/04/2021)
07/22/2021 43 RESPONSE in Opposition re 31 MOTION for Sanctions and Attorney’s Fees Against Lee Segal Personally filed by BCP Management, LLC. (Attachments: # 1 Affidavit Affidavit of Zachary Heathcote)(Segal, Lee) (Entered: 07/22/2021)
07/20/2021 42 ORDER denying 41 Motion to Reconsider Order granting in part Motion to File Excess Pages. The plaintiff’s response to the defendant’s 31 Motion for Attorney’s Fees is due by July 23, 2021 and cannot exceed twenty-five pages. Signed by Magistrate Judge Amanda Arnold Sansone on 7/20/2021. (MLM) (Entered: 07/20/2021)
07/16/2021 41 First MOTION for Reconsideration re 38 Order on Motion to Stay Order on Motion to File Excess Pages by BCP Management, LLC. (Segal, Lee) Modified on 7/19/2021 to edit text (CRH). (Entered: 07/16/2021)
06/28/2021 40 NOTICE of Filing Order by BCP Management, LLC. (Attachments: # 1 Order on Motion to Consolidate Cases)(Segal, Lee) Modified on 6/28/2021 to edit text (CRH). (Entered: 06/28/2021)
06/28/2021 39 NOTICE of supplemental authority by BCP Management, LLC. (Segal, Lee) (Entered: 06/28/2021)
06/25/2021 38 ORDER denying 36 Motion to Stay Response Deadline; granting in part 37 Motion to File Excess Pages. The plaintiff’s response to the defendant’s 31 Motion for Sanctions is due by July 12, 2021 and cannot exceed twenty-five pages. See order for further details. Signed by Magistrate Judge Amanda Arnold Sansone on 6/25/2021. (MLM) (Entered: 06/25/2021)
06/21/2021 37 First MOTION for Leave to File Other Document :Response to Defendant’s Motion for Attorney Fees and/or Sanctions to Exceed 20 Pages by BCP Management, LLC. (Segal, Lee) Modified on 6/22/2021 to change event type (CRH). (Entered: 06/21/2021)
06/14/2021 36 Amended MOTION to Stay re 35 Order directing response to motion Order pdf, 31 MOTION for Sanctions and Attorney’s Fees34 Notice (Other) Request to Abate Deadlines to Respond Pending Ruling on Motion to Consolidate by BCP Management, LLC. (Segal, Lee) Modified on 6/15/2021 to edit text (CRH). (Entered: 06/14/2021)
06/08/2021 35 ORDER dismissing the case for failure to prosecute; directing the Clerk to close the case; and directing the plaintiff to respond to 31 Motion for Sanctions and Attorney’s Fees by June 14, 2021. If no response is received, the defendant’s motion will be treated as unopposed. Signed by Magistrate Judge Amanda Arnold Sansone on 6/8/2021. (MLM) (Entered: 06/08/2021)
06/04/2021 34 NOTICE by BCP Management, LLC of Filing (Attachments: # 1 Motion to Consolidate Cases)(Segal, Lee) (Entered: 06/04/2021)
05/24/2021 33 ORDER TO SHOW CAUSE as to BCP Management, LLC. See order for details. Signed by Magistrate Judge Amanda Arnold Sansone on 5/24/2021. (MLM) (Entered: 05/24/2021)
05/24/2021 32 NOTICE to the Courts to take judicial notice regarding 31 MOTION for Sanctions and Attorney’s Fees Def’s Request for Judicial Notice and Notice of Intent to Use Summaries by Deutsche Bank National Trust Company. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Kohn, Joseph) (Entered: 05/24/2021)
05/24/2021 31 MOTION for Sanctions and Attorney’s Fees by Deutsche Bank National Trust Company. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Kohn, Joseph) (Entered: 05/24/2021)
04/21/2021 30 ORDER denying 24 Motion to Stay Adjudication of Motion to Quash and Conduct Discovery; granting 6 Motion to Quash Service; and Vacating Default Judgment entered in state court. See order for further details and deadlines. Signed by Magistrate Judge Amanda Arnold Sansone on 4/21/2021. (MLM) (Entered: 04/21/2021)
04/15/2021 29 CERTIFICATE of interested persons and corporate disclosure statement by BCP Management, LLC. (Segal, Lee) (Entered: 04/15/2021)
04/15/2021 28 NOTICE of a related action per Local Rule 1.07(c) by BCP Management, LLC. Related case(s): No (Segal, Lee) (Entered: 04/15/2021)
04/12/2021 27 RESPONSE in Opposition re 24 MOTION to Stay re 21 Response in Opposition to Motion Adjudication of Motion to Quash, Motion to Allow Subpoena Duces Tecum to CT, Compel Deposition filed by Deutsche Bank National Trust Company. (Kohn, Joseph) (Entered: 04/12/2021)
04/06/2021 26 NOTICE by Deutsche Bank National Trust Company re 18 Notice (Other) of Filing Order Denying Consolidation for Purposes of Appeal (Attachments: # 1 Exhibit)(Kohn, Joseph) (Entered: 04/06/2021)
04/06/2021 25 NOTICE of supplemental authority re 6 MOTION to Quash Service of Process MOTION to Vacate Clerk’s Default and Default Judgment by Deutsche Bank National Trust Company. (Kohn, Joseph) (Entered: 04/06/2021)
03/29/2021 24 MOTION to Stay re 21 Response in Opposition to Motion Adjudication of Motion to Quash, Motion to Allow Subpoena Duces Tecum to CT, Compel Deposition by BCP Management, LLC. (Segal, Lee) (Entered: 03/29/2021)
03/28/2021 23 NOTICE by BCP Management, LLC re 21 Response in Opposition to Motion of Reyes Affidavit Admitting Office (Attachments: # 1 Exhibit)(Segal, Lee) (Entered: 03/28/2021)
03/28/2021 22 NOTICE by BCP Management, LLC re 21 Response in Opposition to Motion of Affidavit of Lior Segal (Attachments: # 1 Exhibit)(Segal, Lee) (Entered: 03/28/2021)
03/26/2021 21 RESPONSE in Opposition re 6 MOTION to Quash Service of Process MOTION to Vacate Clerk’s Default and Default Judgment filed by BCP Management, LLC. (Segal, Lee) (Entered: 03/26/2021)
03/17/2021 20 ENDORSED ORDER granting 19 Motion for Extension of Time to File a Response to the defendant’s 6 Motion to Quash Service of Process and Motion to Vacate Clerk’s Default and Default Judgment. The plaintiff’s response is due by March 26, 2021. Signed by Magistrate Judge Amanda Arnold Sansone on 3/17/2021. (MLM) (Entered: 03/17/2021)
03/17/2021 19 First MOTION for Extension of Time to File Response/Reply as to 6 MOTION to Quash Service of Process MOTION to Vacate Clerk’s Default and Default Judgment, 17 Order directing response to motion to Defendant’s Motion to Quash Service & Incorporated Memorandum of Law by BCP Management, LLC. (Segal, Lee) (Entered: 03/17/2021)
03/17/2021 18 NOTICE by BCP Management, LLC of Filing (Attachments: # 1 Motion to Consolidate Cases)(Segal, Lee) (Entered: 03/17/2021)
03/11/2021 17 ENDORSED ORDER directing the plaintiff to respond to the defendant’s 6 Motion to Quash Service of Process and Motion to Vacate Clerk’s Default and Default Judgment. The plaintiff’s response is due by March 19, 2021. If no response is received, the defendant’s motion will be treated as unopposed. Signed by Magistrate Judge Amanda Arnold Sansone on 3/11/2021. (MLM) (Entered: 03/11/2021)
03/09/2021 16 ORDER approving Consent to Jurisdiction by US Magistrate Judge. Case reassigned to Magistrate Judge Amanda Arnold Sansone. Signed by Judge Charlene Edwards Honeywell on 3/9/2021. (BGS) (Entered: 03/09/2021)
03/09/2021 15 NOTICE of supplemental authority re 6 MOTION to Quash Service of Process MOTION to Vacate Clerk’s Default and Default Judgment (Second Notice) by Deutsche Bank National Trust Company. (Kohn, Joseph) (Entered: 03/09/2021)
03/09/2021 14 CONSENT to trial by U.S. Magistrate Judge by Deutsche Bank National Trust Company. (Kohn, Joseph) (Entered: 03/09/2021)
03/09/2021 13 CASE MANAGEMENT REPORT. (Kohn, Joseph) (Entered: 03/09/2021)
03/03/2021 12 NOTICE of a related action per Local Rule 1.07(c) by Deutsche Bank National Trust Company. Related case(s): Yes (Attachments: # 1 Exhibit)(Kohn, Joseph) (Entered: 03/03/2021)
03/01/2021 11 NOTICE informing the parties that they may consent to the jurisdiction of a United States magistrate judge by filing Form AO 85 Notice, Consent, and Reference of a Civil Action to a Magistrate Judge using the event Consent to Jurisdiction of US Magistrate Judge. (Signed by Deputy Clerk). (BGS) (Entered: 03/01/2021)
03/01/2021 10 NOTICE to Counsel of Local Rule 1.07(c), Local Rule 3.02(a)(2), and Local Rule 3.03.

-Local Rule 1.07(c) requires lead counsel to promptly file a Notice of a Related Action that identifies and describes any related action pending in the Middle District.

-Local Rule 3.02(a)(2) requires the parties in every civil proceeding, except those described in subsection (d), to file a case management report (CMR) using the uniform form at www.flmd.uscourts.gov. The CMR must be filed (1) within forty days after any defendant appears in an action originating in this court, (2) within forty days after the docketing of an action removed or transferred to this court, or (3) within seventy days after service on the United States attorney in an action against the United States, its agencies or employees. Judges may have a special CMR form for certain types of cases. These forms can be found at www.flmd.uscourts.gov under the Forms tab for each judge.

-Local Rule 3.03 requires each party to file a disclosure statement with the first appearance that identifies (1) each person that has or might have an interest in the outcome, (2) each entity with publicly traded shares or debt potentially affected by the outcome, (3) each additional entity likely to actively participate, and (4) each person arguably eligible for restitution. The disclosure statement must include this certification – I certify that, except as disclosed, I am unaware of an actual or potential conflict of interest affecting the district judge or the magistrate judge in this action, and I will immediately notify the judge in writing within fourteen days after I know of a conflict. (Signed by Deputy Clerk). (BGS) (Entered: 03/01/2021)

02/26/2021 9 NOTICE of filing of affidavit in opposition to re 7 Notice of filing supplemental authority, 6 MOTION to Quash Service of Process MOTION to Vacate Clerk’s Default and Default Judgment by BCP Management, LLC (Attachments: # 1 Affidavit of Michael Roth)(Segal, Lee) Modified text on 3/1/2021 (MCB). (Entered: 02/26/2021)
02/26/2021 8 NOTICE of filing of affidavit in opposition to re 7 Notice of filing supplemental authority, 6 MOTION to Quash Service of Process MOTION to Vacate Clerk’s Default and Default Judgment by BCP Management, LLC (Attachments: # 1 Affidavit of Michael Levey)(Segal, Lee) Modified text on 3/1/2021 (MCB). (Entered: 02/26/2021)
02/23/2021 7 NOTICE of supplemental authority re 6 MOTION to Quash Service of Process MOTION to Vacate Clerk’s Default and Default Judgment by Deutsche Bank National Trust Company. (Kohn, Joseph) (Entered: 02/23/2021)
02/22/2021 6 MOTION to Quash Service of Process , MOTION to Vacate Clerk’s Default and Default Judgment by Deutsche Bank National Trust Company. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18)(Kohn, Joseph) Motions referred to Magistrate Judge Amanda Arnold Sansone. (Entered: 02/22/2021)
02/08/2021 5 CORPORATE Disclosure Statement by Deutsche Bank National Trust Company identifying Corporate Parent Deutsche Bank Holdings, Inc., Corporate Parent Deutsche Bank Trust Corporation, Corporate Parent DB USA Corporation for Deutsche Bank National Trust Company.. (Kohn, Joseph) (Entered: 02/08/2021)
02/04/2021 4 ORDER transferring case to Tampa Division. Signed by Judge Anne C. Conway on 2/4/2021. (copies mailed/emailed)(AKC) (Entered: 02/04/2021)
02/03/2021 3 INITIAL CASE ORDER – Notice of Local Rule 3.02(a)(2), which requires the parties in every civil proceeding, except those described in subsection (d), to file a case management report (CMR) using the uniform form at www.flmd.uscourts.gov. The CMR must be filed (1) within forty days after any defendant appears in an action originating in this court, (2) within forty days after the docketing of an action removed or transferred to this court, or (3) within seventy days after service on the United States attorney in an action against the United States, its agencies or employees. Counsel have 14 days from the date of this order to file their disclosure statement (if not already filed) and to notify the court of a related action (not required if there are no related actions). Signed by Judge Anne C. Conway on 2/3/2021. (copies mailed/emailed)(AKC) (Entered: 02/03/2021)
02/02/2021 2 NEW CASE ASSIGNED to Judge Anne C. Conway and Magistrate Judge Embry J. Kidd. New case number: 6:21-cv-0223-ACC-EJK. (SJB) (Entered: 02/02/2021)
02/02/2021 1 COMPLAINT and NOTICE OF REMOVAL from 18th Judicial Circuit Brevard County Florida, case number 20-CA-47023 filed in State Court on 10/19/2020. (Filing Fee $402, Receipt # 113A-17839186) filed by Deutsche Bank National Trust Company. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 State Court COMPLAINT, # 7 State Court Other Documents, # 8 State Court Other Documents, # 9 State Court Docket Sheet, # 10 Civil Cover Sheet)(Kohn, Joseph) Modified on 2/2/2021 to correct docket text(SJB). Modified on 2/3/2021 (MEJ). (Entered: 02/02/2021)
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Eleventh Circuit

PPP Fraud Sentencing: In Florida an NFL Player Receives 3 Years. In Texas, a Regular Joe, 9 Years.

Former NFL player Josh Bellamy $1.2m PPP Loan Fraud versus $1.6m by Texas citizen Lee Price III, receives 3x the sentence, for the same crime and practically the same financial sum.

Published

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It doesn’t take a rocket scientist to confirm federal judges are dismissing sentencing guidelines and ordering low sentences depending on who is in front of them.

Ex-NFL player Bellamy gets 3 years for COVID relief fraud

DEC 13, 2021 | REPUBLISHED BY LIT: DEC 14, 2021

TAMPA, Fla. (AP) — Former NFL player Josh Bellamy has been sentenced to three years and one month in federal prison for fraudulently obtaining over $1.2 million in COVID-19 relief funds.

Bellamy, 32, of St. Petersburg, Florida, was sentenced Friday in Tampa federal court, according to court records. He pleaded guilty in June to conspiracy to commit wire fraud. Besides serving prison time, Bellamy must also pay restitution.

Bellamy most recently played for the New York Jets, who released him from the reserve/physically unable to play list in September 2020, just days before his arrest.

The wide receiver had been placed on the list in May of that year, ending his season before it began. He signed a two-year deal worth $5 million with New York in 2019 and played in seven games before injuring a shoulder and being placed on the season-ending injured reserve list.

According to court records, Bellamy obtained a Paycheck Protection Program loan of $1.2 million for his company, Drip Entertainment LLC, using falsified documents and false information.

Bellamy admitted to using the loan proceeds on personal items, such as jewelry and a stay at the Seminole Hard Rock Hotel and Casino.

Bellamy also sought loans on behalf of his family members and close associates.

Texas man who bought Lamborghini with $1.6 million PPP loan sentenced to 9 years in prison

NOV 30, 2021 | REPUBLISHED BY LIT: DEC 14, 2021

HOUSTON, Texas — A Houston businessman was sentenced to nine years in prison for a scheme in which he obtained and laundered more than $1.6 million in Paycheck Protection Program (PPP) loans guaranteed by the Small Business Administration (SBA) under the Coronavirus Aid, Relief and Economic Security (CARES) Act.

According to the U.S. Attorney’s office, 30-year-old Lee Price III, who pleaded guilty to wire fraud and money laundering charges, submitted fraudulent PPP applications to banks and other lenders on behalf of three entities: 713 Construction LLC, Price Enterprises Holdings LLC, and Price Logistic Services LLC.

Through the applications, Price sought over $2.6 million and obtained $1.6 million.

The applications allegedly stated each entity had numerous employees and significant payroll expenses. In addition, Price put down the name of a person who died shortly before the application was submitted.

After receiving the money, Price used the money on a Lamborghini Urus, a Ford F-350 truck, a Rolex watch, and to pay off a loan on a residential property. He also spent thousands at strip clubs and other Houston nightclubs.

Price was arrested and charged with making false statements to a financial institution, wire fraud, bank fraud and engaging in unlawful monetary transactions. He pleaded guilty in September to wire fraud and money laundering charges.

The CARES Act was enacted in March to provide emergency financial assistance for Americans due to the COVID-19 pandemic. Congress authorized more than $300 billion in additional PPP funding.

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Thank you for your trust, belief and support in our conviction to help Floridian residents and citizens nationwide take back their freedom. Your Donations and your Voice are so important.



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Appellate Circuit

Judge Jill Pryor on a Panel about Judicial Recusals? That’s a Contradiction, Right There.

Judge Cooke has a conflict of interest based on her financial statements, which revealed interests in companies doing business with one of the defendants.

Published

on

In the
United States Court of Appeals
For the Eleventh Circuit

No. 20-13674
Non-Argument Calendar

JAMES BUCKMAN, MAURICE SYMONETTE,

versus
LANCASTER MORTGAGE CO.,

Plaintiffs-Appellants,

DEUTSCHE BANK NATIONAL TRUST CO.,
as Trustee under the pooling and servicing agreement series rast 2006-A8,

SECURITY AND EXCHANGE COMMISSION,

U.S. TREASURY,

Defendants-Appellees,

ONE WEST BANK, et al.,

Defendants.

OCT 7, 2021 | REPUBLISHED BY LIT: OCT 7, 2021

Appeal from the United States District Court for the Southern District of Florida
D.C. Docket No. 1:19-cv-24184-MGC

Before JILL PRYOR, BRANCH, and LUCK, Circuit Judges. PER CURIAM:

James Buckman and Maurice Symonette (“Buckman and Symonette”) appeal from the district court’s dismissal with prejudice of their second amended complaint as an impermissible shotgun pleading.

They argue that the district court erred and demonstrated bias by dismissing their case because they had filed a motion for an additional three-day extension of time and the district court provided a window for responses to the motion by the defendants, but then dismissed the case before the responses were due.1

After review, we affirm.

1 Over four months after filing their notice of appeal from the dismissal of their complaint, Buckman and Symonette filed two motions for recusal of the district court judge, arguing that she had a conflict of interest based on her financial statements, which revealed interests in companies doing business with one of the defendants. (LIF: THAT DEFENDANT WOULD BE DEUTSCHE BANK)

The district court denied the motions.

Buckman and Symonette did not file an amended or new notice of appeal following entry of that order.

Therefore, we lack jurisdiction to review the district court’s denial of the motion for recusal.

See McDougald v. Jenson, 786 F.2d 1465, 1474 (11th Cir. 1986) (holding that, although we liberally construe notices of appeal under Federal Rule of Appellate Procedure 3 to include orders not expressly designated, that allowance does not extend to an order that was not entered when the notice of appeal was filed);

see also LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837–38 (11th Cir. 1998) (holding that we lacked jurisdiction over a post-judgment order awarding attorney’s fees where the motion for attorney’s fees was not filed until after the notice of appeal and the plaintiff failed to file an amended notice of appeal from the order awarding fees).

I. Background

In October 2019, Buckman and Symonette filed a pro se 45-page complaint against eight defendants including numerous banks, a mortgage company, the Security and Exchange Commission, the U.S. Treasury, and other entities, raising numerous claims including:

(1) quiet title;
(2) slander of title;
(3) unjust enrichment;
(4) violations of the Real Estate Settlement Procedures Act;
(5) fraud and concealment;
(6) violation of timely assignment and lack of consideration;
and
(7) various violations of several Florida statutes.

Thereafter, in December 2019, Buckman and Symonette filed a 51-page amended complaint asserting a total of 11 causes of action.

On July 24, 2020, the district court, sua sponte, struck the amended complaint as an impermissible shotgun pleading.

The district court set forth the pleading rules in its order, and provided that the plaintiffs had until July 31, 2020 to file a second amended complaint.

The district court emphasized that, in the second amended complaint, Plaintiffs are required to make a “short and plain statement of the claim showing that the pleader is entitled to relief . . .”

Fed. R. Civ. P. 8(a).

Plaintiffs must also state each theory of liability separately “in numbered paragraphs, each limited as far as practicable to a single set of circumstances.”

Fed. R. Civ. P. 10(b).

The newly amended complaint should clearly delineate which factual allegations and cited laws are relevant to the asserted cause of action.

This includes specifying which Defendant is liable under each cause of action and which Defendant is implicated in each factual allegation.

Failure to comply with this Order may result in the dismissal of this case with prejudice or other appropriate sanctions.

On July 31, 2020, the plaintiffs filed a motion for an extension of time to file their second amended complaint. The district court granted the motion and ordered that the second amended com- plaint be filed on or before August 6, 2020.

On August 6, 2020, the plaintiffs filed a motion seeking three more days to file their second amended complaint. On the same date, after filing their extension motion, they filed their second amended complaint.

The 92-page second amended complaint added 4 new causes of action and suffered from many of the same issues as the first amended complaint.

On August 17, 2020, the district court dismissed with prejudice the second amended complaint explaining that the second amended complaint “does not cure the defects that required striking of the initial Complaint.”

This appeal followed.2

2 Following the dismissal of their complaint, Buckman and Symonette filed a motion for reconsideration in the district court, which was denied. However, they do not raise any arguments related to the denial of their motion for re- consideration in their brief. Accordingly, the district court’s resolution of the motion for reconsideration is not before us.

II. Discussion

Buckman and Symonette argue that the district court erred and demonstrated bias when it dismissed their case with prejudice while their motion for extension of time was pending.

Specifically, they argue that the district court docketed their motion for a three- day extension of time to file the second amended complaint and set “responses due by 8/20/2020,” but then dismissed the case before that date.

They also raise arguments related to the merits of their underlying claims.

The district court did not err in dismissing the case. On the day the second amended complaint was due, Buckman and Symonette filed the request for a three-day extension of time, but they then filed a second amended complaint the same day.

The filing of the second amended complaint on the day it was due mooted the motion for an extension of time and the related re- sponse period.

Once the second amended complaint was filed, there was nothing left for the district court to do except review the complaint to determine whether the plaintiffs corrected the previously identified pleading issues.

To the extent that Buckman and Symonette’s brief could be liberally construed as challenging the district court’s dismissal of the second-amended complaint as an impermissible shotgun pleading, we review the district court’s decision for abuse of discretion.

Barmapov v. Amuial, 986 F.3d 1321, 1324 (11th Cir. 2021); see also Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)

(“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.”).

“A shotgun pleading is a complaint that violates either Federal Rule of Civil Procedure 8(a)(2) or Rule 10(b), or both.”

Barmapov, 986 F.3d at 1324.

Rule 8 requires that the complaint set forth “a short and plain statement of the claim” demonstrating an entitlement to relief, and Rule 10 requires that a plaintiff “state [his] claims in numbered paragraphs, each limited as far as practicable to a single set of circumstances.”

Fed. R. Civ. P. 8(a)(2) and 10(b).

Rule 10 further provides that each claim be stated in separate counts “[i]f doing so would promote clarity.” Id. R. 10(b).

We have repeatedly condemned the use of shotgun pleadings.

See Barmapov, 986 F.3d at 1324; Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001).

When a plaintiff files a shotgun pleading, a district court must give him one chance to replead before dismissing his case with prejudice on shotgun pleading grounds.
Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295–96 (11th Cir. 2018).

The district court should explain how the pleading violated the shotgun rule so that the plaintiff can remedy his next pleading.

Id.

Where, as here, the plaintiff is provided fair notice of the specific defects in his complaint and a meaningful chance to fix it but fails to correct the defects, the district court does not abuse its discretion by dismissing with prejudice on shotgun pleading grounds.

Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1358–59 (11th Cir. 2018).

Accordingly, the district court did not abuse its discretion in dismissing the second amended complaint with prejudice because Buckman and Symonette failed to correct the pleading defects.

Id.

Consequently, we affirm.

AFFIRMED.

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