Appellate Judges
Federal Judge Winsor Baulks Dismissal With Prejudice in Disbarred Lawyers Alleged Perjured Complaint
This is a LIT Series on Tim Howard’s shady past and present (not the American goalkeeper) but the Lawyer accused of finchin’ millions from retired NFL players.
HOWARD v. GDB CAPITAL GROUP LLC
(4:19-cv-00049)
District Court, N.D. Florida
JAN 23, 2019 | REPUBLISHED BY LIT: APR 11, 2022
ORDER GRANTING DISMISSAL WITHOUT PREJUDICE AND AWARDING FEES
Phillip Howard sued GDB Capital and others, alleging federal and state claims.
The claims relate to real estate transactions that Howard claims were actually usurious loans.1
Howard has acted improperly and dishonestly throughout this litigation, and I issued an order requiring him to show cause why he should not be sanctioned.
ECF No. 54.
At a hearing on the issue, I determined that sanctions were appropriate.
1 There is no operative complaint.
I will refer to various iterations of the complaint by their given titles, though not all of them are correctly styled. Howard titled his first repleading as a “Second Amended Complaint.”
ECF No. 29.
After that was dismissed, he filed a “Third Amended Complaint,”
ECF No. 38,
followed by a “Verified Third Amended Complaint” (filed without leave),
ECF No. 39.
Because the “Verified Third Amended Complaint” was filed improperly, it was stricken.
ECF No. 56 at 6.
Howard missed the filing deadline for his “Fourth Amended Complaint,”
see ECF Nos. 56 at 7, 60 at 1,
so it never became operative.
Compare with 11th Circuit Opinion re Shotgun Pleading dismissed with prejudice and Judge ‘Glossing’ Tjoflat’s detailed concurring opinion, including pleading a complaint concisely – a warning to lawyers.
Here, Howard’s entire lack of a complaint, combined with a review of the federal docket and in conjuction with the related state court dockets and filings, clearly shows Howards’ complaint(s) commanded dismissal WITH prejudice, sanctions or not.
Now, Howard asks that his case be dismissed without prejudice.
ECF No. 72 at 5, 7.
The defendants agree that the case should be dismissed, but they want it with prejudice.
ECF Nos. 71, 73.
Having carefully considered the parties’ arguments, I find that dismissal without prejudice is sufficient.
This order also imposes sanctions on Howard, as announced at the hearing.
BACKGROUND
Howard (then a licensed attorney2) initially sued on behalf of himself and his then-wife, Jennifer Howard.
(To avoid confusing the two Howards, this order will refer to Jennifer Howard as “the wife,” despite the fact that they are no longer married.)
Throughout the case, Howard consistently failed to comply with the court’s orders, resulting in four show-cause orders.
See ECF Nos. 5, 10, 54, 59.
The third show-cause order3 came after the wife (his one-time purported co-plaintiff) filed notice through her attorney that the case was filed without her knowledge or authorization.
See ECF No. 48 ¶ 1; ECF No. 54.
Howard’s response to the order was equivocal and did not say directly whether the wife authorized the suit.
See generally ECF No. 55.
It addressed ancillary issues, claiming Howard and the wife had met
2 Recently, the Florida Supreme Court disbarred him.
See Fla. Bar v. Phillip Timothy Howard, 2022 WL 872176, at *1 (Fla. Mar. 24, 2022).
3 The first and second show-cause orders addressed Howard’s failure to timely serve defendants.
See ECF Nos. 5, 10.
The fourth addressed his untimely filing of the Fourth Amended Complaint.
See ECF No. 59.
As Judge Winsor confirms himself (see footnote 4 above), if you review the attached motion for attorney fees in the related state court case, specifically page 7, which was filed in June of 2020…Jennifer C. Howard claimed she did not sign said closing documents in defiance of evidence to the contrary, including a notary public claiming she witnessed her signing the papers.
So how is she any more credible than Mr. Howard, especially when she was never cross examined by Judge Winsor?
Who’s making ‘conclusory’ judgments now about a parties integrity when they are not present in the courtroom?
with the U.S. Attorney’s office to discuss the allegedly usurious transactions, that the wife knew about the litigation, that the lawsuit was in her interest, and that he would (apparently gratuitously) give her litigation proceeds.
See generally id.
I held a hearing to address the sanctions issue and other matters.
See ECF No. 56.
When Howard testified under oath at the hearing, he continued to offer vague and evasive answers about whether the wife authorized a lawsuit in her name.
See ECF No. 69 at 19-22.
For example, when I asked Howard how the wife had manifested consent to the filing, he responded that she knew about the case and stood to benefit from it.
Id. at 22:4-5.
Only after I pointed out that awareness is not the same thing as consent did he unequivocally claim that he had asked her directly if he could file the lawsuit and that she said yes.
Id. at 22:16-17.
Because the latter statement would have directly answered the court’s questions (and the earlier show-cause order) but was offered only after repeated questioning, and based on Howard’s overall manner of testimony, I found him not credible.4
ECF No. 69 at 45:21-23.
My finding is that the wife never authorized Howard to sue on her behalf.
4 Howard’s other testimony further undermined his credibility.
For example, Howard gave shifting and inconsistent explanations for why the wife’s purported signature was on the notarized deed to property in dispute,
see ECF No. 60 at 42.
His (improperly filed) “Fourth Amended Complaint” claimed that only he had signed the deed,
ECF No. 60 ¶ 15,
despite her apparent signature and despite earlier filings claiming that both he and the wife had transferred the property,
ECF Nos. 23¶ 9; 38 ¶ 15; 39 ¶ 15.
At the hearing, Howard explained away this inconsistency by saying the wife had “authorized” the signature purporting to be hers but had not physically signed the deed,
ECF No. 69 at 34:1-5,
contradicting the notary’s attestation that the wife had appeared personally to sign the deed,
ECF No. 60 at 42.
Overall, Howard was simply not credible.
Mrs. Jennifer Howard did not show up for the State Court Trial on Aug. 16, 2019 as she was too distraught over the potential loss of her beloved beach house
(and not for the millions of dollars her husband stole from mentally impaired victims).
No live testimony or cross examination could occur as a result, because the trial proceeded in her absence.
– see page 3 of attached attorney fee motion.
DISMISSAL
The defendants seek dismissal with prejudice.
ECF Nos. 70, 71.
Howard instead seeks dismissal without prejudice under Rule 41(a)(2), so that the matter can be resolved in a related state court proceeding.
ECF No. 72 ¶¶ 14, 18.5
To dismiss with prejudice, I would have to “specifically find[] that lesser sanctions would not suffice.”
Betty K. Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1338 (11th Cir. 2005).
Although I must keep the defendants’ interest in mind when ruling on a Rule 41(a)(2) motion for voluntary dismissal without prejudice,
see Fisher v. Puerto Rico Marine Mgmt., Inc., 940 F.2d 1502, 1503 (11th Cir. 1991)
(explaining that “Rule 41(a)(2) exists chiefly for protection of the defendants”),
I find that dismissal without prejudice is warranted here.
5 I will treat Howard’s response to the post-hearing order (ECF No. 72) as a motion for voluntary dismissal under Rule 41(a)(2).
Ordinarily, a plaintiff may voluntarily dismiss without a court order “before the opposing party serves either an answer or a motion for summary judgment.”
Fed. R. Civ. P. 41(a)(1)(A)(i).
“But if the plaintiff previously dismissed any federal or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.”
Fed. R. Civ. P. 41(a)(1)(B).
The court takes judicial notice that Howard appears to have previously dismissed similar claims in state court.
See ECF No. 60
¶¶ 23, 59; id. at 50; Howard v. GDB Capital Grp., Case No. 2018-CA-68 (Fla. 2d Cir. Ct. Mar. 16, 2018).
After the trial, Jennifer Crouse Howard filed for divorce on Sept. 4, 2019.
– see page 3 of attached attorney fee motion.
Notably, the SEC case was filed only a few days before her divorce petition, namely August 29, 2019.
LIF suggests, and it is based on a limited audit and review of the cases and supporting documents, the divorce appears to be engineered. From an outsider peering inwards, it certainly could be assumed that Mrs. Howard was concerned regarding her own personal knowledge and conduct prior to the SEC investigation and she is desperately trying to separate herself from any civil or criminal liability.
After all, she had personally benefited from the fraud – as indicated in court filings and could fall under the co-conspirator category. In short, she enjoyed a lavish lifestyle as a result of the theft of her then-husband’s client investments/retirement funds.
The defendants will suffer little harm, if any, from dismissal without prejudice.
They have all been made parties to the state-court proceeding.
See ECF No. 74 at 3.
Chapman argues that he would be prejudiced because he “would be required to start over in his defense of these claims in a new case.”
ECF No. 73 at 3.
But this is not sufficient legal prejudice under the Rule.
See McCants v. Ford Motor Co., 781 F.2d 855, 856-57 (11th Cir. 1986).6
Nor do the other defendants identify special circumstances to justify dismissal with prejudice.
I find that the sanctions announced below are likely sufficient. See Fed. R. Civ. P. 11(c)(4)
(“A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.”).
Accordingly, I will grant Howard’s request for dismissal without prejudice.
SANCTIONS
This does not resolve the sanctions issue.
See Absolute Activist Value Master Fund Ltd. v. Devine, 998 F.3d 1258, 1266 (11th Cir. 2021)
(explaining that “even when a voluntary dismissal disposes of an entire action, district courts retain jurisdiction” to consider sanctions).
I find that awarding attorney’s fees is appropriate here.
6 Chapman also argues that he is not a party to the state court proceeding, but he has since been named as a party.
See ECF No. 74 at 3.
SEC CASE AGAINST PHILLIP ‘TIM’ HOWARD, et al
(IN THE SAME FEDERAL COURTHOUSE, N.D. Fl.)
“Howard represented National Football League (“NFL”) players who suffered concussion-related brain injuries during their NFL careers in connection with a class action lawsuit against the NFL (the “NFL Concussion Lawsuit”).
Howard has acknowledged that these players’ “brain function is not there, their body has been beat up from the NFL, they don’t have employment capacity, they don’t have credit, and they don’t have capital anymore.”
Nonetheless, Howard and Reinhard solicited these players to invest in the Funds.
As a result, the majority of the Funds’ investors are former NFL More than half of them used their retirement accounts in order to make the investments happen.
To lure investors, the Defendants knowingly or recklessly materially misrepresented the Funds’ investment focus, how the Funds would use investor money, and Reinhard’s background and experience in the securities industry.”
Because the fourth show-cause order placed Howard on notice of potential sanctions, Rule 11 permits the court to award “part or all of the reasonable attorney’s fees and other expenses directly resulting from” his Rule 11 violations.
Fed. R. Civ. P. 11(c)(4); 11(c)(5)(B).
In the Eleventh Circuit, a lawyer may be subject to Rule 11 sanctions when he “files a pleading that has no reasonable factual basis” or “files a pleading in bad faith for an improper purpose.”
Didie v. Howes, 988 F.2d 1097, 1104 (11th Cir. 1993).
Howard filed his first three complaints for an improper purpose by joining his wife as a plaintiff without her authorization.
See Rule 11(b)(1);
see also Albritton v. Cagle’s, Inc., 508 F.3d 1012, 1017 (11th Cir. 2007)
(“An attorney may not file lawsuits without authorization of the plaintiffs on whose behalf the lawsuit is purportedly filed.”).
And there was no reasonable basis to assert claims on her behalf.
As discussed above, I do not believe that dismissal with prejudice is the only sanction sufficient to capture the gravity of Howard’s conduct or deter similar conduct in the future.
Instead, I will direct Howard to pay defendants’ attorney’s fees incurred responding to his Third Amended Complaint (ECF No. 38), “corrected” Third Amended Complaint, (ECF No. 39), and Fourth Amended Complaint (ECF No. 60).
Those fees were incurred because Howard’s filings joined a plaintiff he had no authority to join.
I will also award attorney’s fees that defendants incurred in connection with this sanctions matter, including fees incurred in preparation for the and the memoranda that defendants filed with respect to the sanctions issue, because defendants also incurred those costs on account of Howard’s sanctionable misconduct under Rule 11.
Mrs. Howard is facing civil cases regarding her mounting credit card debt, this law suit is the AMEX line of credit which is being pursued in Florida court; amount payable: $134k.
CONCLUSION
1. Howard must pay the attorney’s fees and costs incurred by the remaining defendants in preparing and filing ECF Nos. 40, 41, 58, 67, 70, 71, and 73.
2. The parties must confer regarding the amount of fees to be awarded and file a joint notice no later than April 8, 2022 indicating whether they have agreed as to the amount.
If the parties cannot agree, the court will refer the matter to the magistrate judge to make a recommendation regarding a reasonable amount.
3. Howard’s request to dismiss without prejudice (ECF No. 72) is GRANTED.
The clerk will enter a judgment that says,
“This case is dismissed without prejudice under Rule 41(a)(2).”
Defendant’s motions to dismiss with prejudice (ECF Nos. 58, 71) are DENIED.
4. The court will retain jurisdiction to enter judgment on the Rule 11 and 28 U.S.C. § 1927 sanctions.
5. The clerk will administratively close the file.
SO ORDERED on March 30, 2022.
s/ Allen Winsor
United States District Judge
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District of Florida (Tallahassee)
CIVIL DOCKET FOR CASE #: 4:19-cv-00049-AW-MAF
| HOWARD et al v. GDB CAPITAL GROUP LLC et al Assigned to: JUDGE ALLEN C WINSOR Referred to: MAGISTRATE JUDGE MARTIN A FITZPATRICK Demand: $1,500,000 Cause: 18:1962 Racketeering (RICO) Act |
Date Filed: 01/23/2019 Date Terminated: 03/30/2022 Jury Demand: Plaintiff Nature of Suit: 370 Other Fraud Jurisdiction: Diversity |
| Plaintiff | ||
| PHILLIP TIMOTHY HOWARD | represented by | PHILLIP TIMOTHY HOWARD HOWARD & ASSOCIATES PA – TALLAHASSEE FL 2120 KILLARNEY WAY STE 125 TALLAHASSEE, FL 32309 850-298-4455 Fax: 850-216-2537 Email: tim@howardjustice.com ATTORNEY TO BE NOTICED |
| Plaintiff | ||
| JENNIFER HOWARD | represented by | PHILLIP TIMOTHY HOWARD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICEDJERRY LEWIS RUMPH , JR SWEETING & RUMPH PA – TALLAHASSEE FL 864 EAST PARK AVENUE TALLAHASSEE, FL 32301 850-681-1010 Email: jerry@sweetingrumph.com ATTORNEY TO BE NOTICED |
| V. | ||
| Defendant | ||
| GDB CAPITAL GROUP LLC | represented by | ROBERT SCOTT GERSHMAN GERSHMAN & GERSHMAN PA – DELRAY BEACH FL 2160 W ATLANTIC AVENUE 2ND FLOOR DELRAY BEACH, FL 33445 561-684-8898 Email: robert@rglawfirm.us ATTORNEY TO BE NOTICED |
| Defendant | ||
| JEFFREY STUART GALLOWAY TERMINATED: 12/03/2019 |
||
| Defendant | ||
| JEFF GALLOWAY REAL ESTATE INC TERMINATED: 12/03/2019 |
||
| Defendant | ||
| DOUGLAS JOHN DEHAAN TERMINATED: 12/03/2019 |
||
| Defendant | ||
| GAYLE H DEHAAN TERMINATED: 12/03/2019 |
||
| Defendant | ||
| GARY BROTHERTON, JR | represented by | ROBERT SCOTT GERSHMAN (See above for address) ATTORNEY TO BE NOTICED |
| Defendant | ||
| ADDYS THEDRICK WALKER TERMINATED: 12/03/2019 |
||
| Defendant | ||
| LINDA BEDELL TERMINATED: 12/03/2019 |
||
| Defendant | ||
| PROVIDENCE CAPITAL HOLDINGS LLC TERMINATED: 12/03/2019 |
||
| Defendant | ||
| NEW EDGE MANAGEMENT LLC TERMINATED: 12/03/2019 |
||
| Defendant | ||
| BARRY RYAN CHAPMAN | represented by | CHRISTOPHER KEITH RITCHIE GALLOWAY LAW FIRM – PENSACOLA FL 118 E GARDEN STREET PENSACOLA, FL 32502 850-436-7000 Fax: 850-436-7099 Email: critchie@gallowaylawfirm.com ATTORNEY TO BE NOTICEDJOHN MICHAEL GRIMLEY , JR GALLOWAY LAW FIRM – PENSACOLA FL 118 E GARDEN STREET PENSACOLA, FL 32502 850/436-7000 Fax: 850/436-7099 Email: mgrimley@gjtbs.com ATTORNEY TO BE NOTICED |
| Defendant | ||
| JEFF KAHN TERMINATED: 12/03/2019 |
||
| Defendant | ||
| INNOVATIVE RETURNS INC TERMINATED: 12/03/2019 |
||
| Defendant | ||
| GORHAM INVESTMENTS INC TERMINATED: 12/03/2019 |
||
| Defendant | ||
| ANTONIO CORTEZ HENDERSON TERMINATED: 12/03/2019 |
||
| Defendant | ||
| SHEILA HENDERSON TERMINATED: 12/03/2019 |
||
| Defendant | ||
| GULF COAST REALTY OF ST GEORGE ISLAND INC TERMINATED: 12/03/2019 |
||
| Defendant | ||
| KAHN ADVISORS TERMINATED: 12/03/2019 |
||
| V. | ||
| Intervenor Defendant | ||
| DOUGLAS JOHN DEHAAN | represented by | CECILY MARIE PARKER BEGGS & LANE RLLP – PENSACOLA FL 501 COMMENDENCIA ST PENSACOLA, FL 32502 850-432-2451 Fax: 850-469-3331 Email: cmp@beggslane.com ATTORNEY TO BE NOTICED |
| Intervenor Defendant | ||
| GAYLE H DEHAAN | represented by | CECILY MARIE PARKER (See above for address) ATTORNEY TO BE NOTICED |
| Date Filed | # | Docket Text |
|---|---|---|
| 01/23/2019 | 1 | COMPLAINT against All Defendants ( Filing fee $ 400 receipt number AFLNDC-4384882.), filed by PHILLIP TIMOTHY HOWARD. (HOWARD, PHILLIP) (Entered: 01/23/2019) |
| 01/24/2019 | 2 | DOCKET ANNOTATION BY COURT: To ATTORNEY PHILLIP HOWARD re: 1 Complaint. Party names (including aliases) are to be added using all caps and no punctuation. (See “Style Guide for Electronic Case Filing,” available on Clerk’s website.) The party names will be corrected by the clerk. Further, counsel is advised by this entry, that a Civil Cover Sheet must be filed as a separate entry using the event selection “Civil Cover Sheet” which is found under “Other Filings” under “Other Documents”. PLEASE FILE THE CIVIL COVER SHEET. (cle) (Entered: 01/24/2019) |
| 03/27/2019 | 3 | CIVIL COVER SHEET. (Attachments: # 1 Civil Cover Sheet) (HOWARD, PHILLIP) (Entered: 03/27/2019) |
| 06/28/2019 | 4 | ORDER REASSIGNING CASE. Case reassigned to JUDGE ALLEN C WINSOR for all further proceedings. CHIEF JUDGE MARK E WALKER no longer assigned to case. Signed by CHIEF JUDGE MARK E WALKER on 6/28/19. **Please use the new judge’s initials for all future filings: 4:19cv49-AW/CAS. (pll) (Entered: 06/28/2019) |
| 07/15/2019 | 5 | ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED – Plaintiffs initiated this case by filing a complaint on January 23, 2019. ECF No. 1 . Since then, there has been no activity in the case. Plaintiffs are directed to show cause no later than 7/29/2019 why this case should not be dismissed. Signed by JUDGE ALLEN C WINSOR on 7/15/2019. (cle) (Entered: 07/15/2019) |
| 07/26/2019 | 6 | NOTICE Summons – Addys Walker by PHILLIP TIMOTHY HOWARD (HOWARD, PHILLIP) (Entered: 07/26/2019) |
| 07/26/2019 | 7 | NOTICE Summons – Defendants by PHILLIP TIMOTHY HOWARD (Attachments: # 1 Gary Brotherton, # 2 GDB Capital, # 3 Gulf Coast Realty, # 4 Galloway Real Estate, # 5 Jeff Galloway, # 6 Jeff Kahn, # 7 Kahn Advisors, # 8 Linda Bedell, # 9 New Edge Mgmt, # 10 Provident) (HOWARD, PHILLIP) (Entered: 07/26/2019) |
| 07/29/2019 | 8 | RESPONSE TO ORDER TO SHOW CAUSE by PHILLIP TIMOTHY HOWARD. (HOWARD, PHILLIP) (Entered: 07/29/2019) |
| 07/30/2019 | 9 | Summons Issued as to LINDA BEDELL, GARY BROTHERTON, JR, JEFFREY STUART GALLOWAY, GDB CAPITAL GROUP LLC, GULF COAST REALTY OF ST GEORGE ISLAND INC, JEFF GALLOWAY REAL ESTATE INC, JEFF KAHN, KAHN ADVISORS, NEW EDGE MANAGEMENT LLC, PROVIDENCE CAPITAL HOLDINGS LLC, and ADDYS THEDRICK WALKER. (Attachments: # 1 SUMMONS, # 2 SUMMONS, # 3 SUMMONS, # 4 SUMMONS, # 5 SUMMONS, # 6 SUMMONS, # 7 SUMMONS, # 8 SUMMONS, # 9 SUMMONS, # 10 SUMMONS) (cle) (Entered: 07/30/2019) |
| 11/08/2019 | 10 | ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED – The 90-day time limit for service has expired with no proof of service having been filed. Accordingly, Plaintiffs shall show cause, if any, no later than seven days from the date of this Order, why this case should not be dismissed for failure to effect service within the specified time limit. Show Cause Response due by 11/15/2019. Signed by JUDGE ALLEN C WINSOR on 11/8/2019. (cle) (Entered: 11/08/2019) |
| 11/15/2019 | 11 | RESPONSE TO ORDER TO SHOW CAUSE by PHILLIP TIMOTHY HOWARD. (HOWARD, PHILLIP) (Entered: 11/15/2019) |
| 11/22/2019 | 12 | ACKNOWLEDGMENT OF SERVICE Executed as to 10 Order,, Set Deadlines, 11 Response to Order to Show Cause Phillip Timothy Howard Acknowledgment filed by PHILLIP TIMOTHY HOWARD. (HOWARD, PHILLIP) (Entered: 11/22/2019) |
| 11/25/2019 | 13 | NOTICE of Appearance by ROBERT SCOTT GERSHMAN on behalf of GARY BROTHERTON, JR (GERSHMAN, ROBERT) (Entered: 11/25/2019) |
| 11/26/2019 | 14 | First MOTION for Extension of Time to File Response/Reply as to 1 Complaint Unopposed by GARY BROTHERTON, JR. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Motion) (GERSHMAN, ROBERT) (Entered: 11/26/2019) |
| 11/27/2019 | 15 | ORDER GRANTING EXTENSION OF TIME TO RESPOND TO COMPLAINT – re: 14 First MOTION for Extension of Time to File Response. The motion is GRANTED. Moving Defendants’ deadline to respond to the complaint (ECF No. 1 ) is extended to 1/14/2020. Signed by JUDGE ALLEN C WINSOR on 11/27/2019. (cle) (Entered: 11/27/2019) |
| 12/02/2019 | 16 | ORDER DISMISSING CLAIMS AGAINST UNSERVED DEFENDANTS – re: 1 Complaint. This matter is dismissed without prejudice as to all Defendants other than Barry Ryan Chapman, Barry Ryan Chapman Law Firm, GDB Capital Group, LLC, and Gary Donald Brotherton, Jr. Signed by JUDGE ALLEN C WINSOR on 12/2/2019. (cle) (Entered: 12/03/2019) |
| 12/04/2019 | 17 | INITIAL SCHEDULING ORDER – Fed.R.Civ.P. 7.1 Corporate Disclosure Statement Deadline set for 12/18/2019. Rule 26 Meeting Report due by 1/17/2020. Discovery due by 3/31/2020. Signed by JUDGE ALLEN C WINSOR on 12/4/2019. (cle) (Entered: 12/05/2019) |
| 12/10/2019 | 18 | Corporate Disclosure Statement/Certificate of Interested Persons by GDB CAPITAL GROUP LLC. (GERSHMAN, ROBERT) (Entered: 12/10/2019) |
| 12/30/2019 | 19 | First MOTION for Extension of Time to File Response/Reply by BARRY RYAN CHAPMAN. (GRIMLEY, JOHN) (Entered: 12/30/2019) |
| 12/31/2019 | 20 | ORDER GRANTING EXTENSION OF TIME TO RESPOND TO COMPLAINT. Defendant Barry Ryan Chapman has filed a motion for an extension. ECF No. 19 . The motion is GRANTED. Mr. Chapman’s deadline to respond to the complaint (ECF No. 1) is extended to 1/14/2020). Signed by JUDGE ALLEN C WINSOR on 12/31/19. (blb) (Entered: 12/31/2019) |
| 01/10/2020 | 21 | MOTION TO DISMISS PLAINTIFFS’ COMPLAINT by BARRY RYAN CHAPMAN. (GRIMLEY, JOHN) (Internal deadline for referral to judge if response not filed earlier: 1/24/2020).) Modified on 1/13/2020 to amend title of document. (cle) (Entered: 01/10/2020) |
| 01/14/2020 | 22 | MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM To Dismiss Complaint by GDB CAPITAL GROUP LLC. (GERSHMAN, ROBERT) (Entered: 01/14/2020) |
| 01/17/2020 | 23 | Rule 26(f) Planning Meeting Report (docketed as RULE 26 Disclosures) by PHILLIP TIMOTHY HOWARD. (HOWARD, PHILLIP) Modified on 1/21/2020 (tss). (Entered: 01/17/2020) |
| 01/22/2020 | 24 | RULE 26 Disclosures by GARY BROTHERTON, JR, GDB CAPITAL GROUP LLC. (GERSHMAN, ROBERT) (Entered: 01/22/2020) |
| 01/24/2020 | 25 | SCHEDULING AND MEDIATION ORDER signed by JUDGE ALLEN C WINSOR on 1/24/20. Discovery due by 7/22/2020. Dispositive Motions to be filed by 8/12/2020. Mediation Report due by 9/2/2020. Jury Trial set for 12/16/2020 at 08:30 AM in U.S. Courthouse Tallahassee before JUDGE ALLEN C WINSOR. Case referred to mediation. (tss) (Entered: 01/24/2020) |
| 01/28/2020 | 26 | MOTION to Amend/Correct by PHILLIP TIMOTHY HOWARD. (HOWARD, PHILLIP) (Entered: 01/28/2020) |
| 01/29/2020 | 27 | RESPONSE to Motion re 22 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM To Dismiss Complaint, 21 MOTION for Disbursement of Funds MOTION to Dismiss Plaintiffs’ Complaint filed by PHILLIP TIMOTHY HOWARD. (HOWARD, PHILLIP) (Entered: 01/29/2020) |
| 01/29/2020 | 28 | ORDER DENYING AS MOOT MOTION TO AMEND – re: 26 MOTION to Amend. A party may file a first amended complaint without leave if they do so within 21 days after service. Because the amended complaint was filed within that time, no motion was needed. So the motion to amend is denied as moot. Plaintiffs should have filed the amended complaint as a standalone document, not as an attachment to the motion. Plaintiffs shall refile the amended complaint as a standalone document within two days of the date of this order, 1/31/2020. Defendants’ motions to dismiss the original complaint (ECF Nos. 21 and 22 ) are denied as moot. Defendants shall respond to the amended complaint within 14 days after Plaintiffs refile their amended complaint as a standalone document, 2/14/2020. Signed by JUDGE ALLEN C WINSOR on 1/29/2020. (cle) (Entered: 01/29/2020) |
| 01/31/2020 | 29 | SECOND AMENDED COMPLAINT against GARY BROTHERTON, JR, BARRY RYAN CHAPMAN, GDB CAPITAL GROUP LLC, filed by PHILLIP TIMOTHY HOWARD. (HOWARD, PHILLIP) (Entered: 01/31/2020) |
| 02/07/2020 | 30 | MOTION to Dismiss 29 Amended Complaint by BARRY RYAN CHAPMAN. (Internal deadline for referral to judge if response not filed earlier: 2/21/2020). (GRIMLEY, JOHN) (Entered: 02/07/2020) |
| 02/11/2020 | 31 | MOTION to Dismiss by GDB CAPITAL GROUP LLC. (Internal deadline for referral to judge if response not filed earlier: 2/25/2020). (GERSHMAN, ROBERT) (Entered: 02/11/2020) |
| 02/14/2020 | 32 | RULE 26 Disclosures by BARRY RYAN CHAPMAN. (GRIMLEY, JOHN) (Entered: 02/14/2020) |
| 02/24/2020 | 33 | RESPONSE in Opposition re 30 MOTION to Dismiss Amended Complaint filed by PHILLIP TIMOTHY HOWARD. (HOWARD, PHILLIP) (Entered: 02/24/2020) |
| 02/26/2020 | 34 | RESPONSE to Motion re 31 MOTION to Dismiss filed by PHILLIP TIMOTHY HOWARD. (HOWARD, PHILLIP) (Entered: 02/26/2020) |
| 04/03/2020 | 35 | ORDER REASSIGNING CASE. Case reassigned to MAGISTRATE JUDGE MARTIN A FITZPATRICK for all further proceedings. MAGISTRATE JUDGE CHARLES A STAMPELOS no longer assigned to case. Signed by CHIEF JUDGE MARK E WALKER on 4/3/2020. (erl)**Please use the new judge’s initials for all future filings: 4:19cv49-AW/MAF. (Entered: 04/06/2020) |
| 05/26/2020 | 36 | NOTICE of Appearance by JERRY LEWIS RUMPH, JR on behalf of JENNIFER HOWARD (RUMPH, JERRY) (Entered: 05/26/2020) |
| 06/19/2020 | 37 | ORDER GRANTING MOTIONS TO DISMISS – The motions to dismiss, ECF Nos. 30 , 31 , are GRANTED. Plaintiffs may file a third amended complaint within 14 days. (7/3/2020). Signed by JUDGE ALLEN C WINSOR on 6/19/2020. (cle) (Entered: 06/19/2020) |
| 07/01/2020 | 38 | THIRD AMENDED COMPLAINT against GARY BROTHERTON, JR, BARRY RYAN CHAPMAN, GDB CAPITAL GROUP LLC, filed by PHILLIP TIMOTHY HOWARD. (HOWARD, PHILLIP) (Entered: 07/01/2020) |
| 07/02/2020 | 39 | Corrected THIRD – Verified AMENDED COMPLAINT against GARY BROTHERTON, JR, BARRY RYAN CHAPMAN, GDB CAPITAL GROUP LLC, filed by PHILLIP TIMOTHY HOWARD. (HOWARD, PHILLIP) (Entered: 07/02/2020) |
| 07/21/2020 | 40 | MOTION to Dismiss Plaintiff’s Third Amended Complaint by BARRY RYAN CHAPMAN. (Internal deadline for referral to judge if response not filed earlier: 8/4/2020). (GRIMLEY, JOHN) (Entered: 07/21/2020) |
| 07/24/2020 | 41 | MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by GARY BROTHERTON, JR, GDB CAPITAL GROUP LLC. (GERSHMAN, ROBERT) (Entered: 07/24/2020) |
| 08/06/2020 | 42 | RESPONSE in Opposition re 21 MOTION for Disbursement of Funds MOTION to Dismiss Plaintiffs’ Complaint filed by PHILLIP TIMOTHY HOWARD. (HOWARD, PHILLIP) (Entered: 08/06/2020) |
| 08/11/2020 | 43 | MOTION to Compel by GARY BROTHERTON, JR. (GERSHMAN, ROBERT) (Entered: 08/11/2020) |
| 08/12/2020 | 44 | MOTION to Compel Discovery by GARY BROTHERTON, JR. (GERSHMAN, ROBERT) (Entered: 08/12/2020) |
| 08/12/2020 | 45 | RESPONSE to Motion re 43 MOTION to Compel , 44 MOTION to Compel Discovery filed by PHILLIP TIMOTHY HOWARD. (HOWARD, PHILLIP) (Entered: 08/12/2020) |
| 08/25/2020 | 46 | MOTION for Extension of Time to Complete Discovery by PHILLIP TIMOTHY HOWARD. (HOWARD, PHILLIP) (Entered: 08/25/2020) |
| 08/25/2020 | 47 | ORDER REGARDING DISCOVERY MOTIONS signed by JUDGE ALLEN C WINSOR on 8/24/20. The parties must promptly confer in person, by phone, or by videoconference (i.e., not merely in writing) on any outstanding discovery issues, including the fee request. No later than 8/31/2020, movants must file a notice indicating what, if any, issues remain. The clerk will set a telephonic hearing for September 2 or later. The clerk will also terminate 43 MOTION to Compel which the later filing 44 MOTION to Compel is deemed to have superseded. (tss) (Entered: 08/25/2020) |
| 08/25/2020 | 48 | NOTICE by JENNIFER HOWARD re 1 Complaint (RUMPH, JERRY) (Entered: 08/25/2020) |
| 08/31/2020 | 49 | STATUS REPORT by PHILLIP TIMOTHY HOWARD. (HOWARD, PHILLIP) (Entered: 08/31/2020) |
| 09/01/2020 | 50 | NOTICE of Proposal for Settlement – Mediation Dates by PHILLIP TIMOTHY HOWARD (HOWARD, PHILLIP) (Entered: 09/01/2020) |
| 09/14/2020 | 51 | NOTICE of Filing Answers to Discovery by PHILLIP TIMOTHY HOWARD (HOWARD, PHILLIP) (Entered: 09/14/2020) |
| 10/05/2020 | 52 | NOTICE of Appearance by CECILY MARIE PARKER on behalf of DOUGLAS JOHN DEHAAN, GAYLE H DEHAAN (PARKER, CECILY) (Entered: 10/05/2020) |
| 10/05/2020 | 53 | MOTION to Intervene by DOUGLAS JOHN DEHAAN, GAYLE H DEHAAN. (Attachments: # 1 Exhibit DeHaan Answer to Complaint, Counterclaim, and Crossclaim) (PARKER, CECILY) (Entered: 10/05/2020) |
| 12/02/2020 | 54 | ORDER REMOVING CASE FROM TRIAL CALENDAR AND ORDERING PHILLIP HOWARD TO SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED signed by JUDGE ALLEN C WINSOR on 12/2/20. Show Cause Response due by 12/12/2020. Mr. Howard is ordered to show cause as to why the case should not be dismissed or why some other sanction should not be imposedfor violating Rule 11. He must file his response within 10 days (12/12/2020) of the date of this order. The case is removed from the trial calendar. The trial will be reset later if necessary. (tss) (Entered: 12/02/2020) |
| 12/11/2020 | 55 | RESPONSE TO ORDER TO SHOW CAUSE by PHILLIP TIMOTHY HOWARD. (HOWARD, PHILLIP) (Entered: 12/11/2020) |
| 03/29/2021 | 56 | OMNIBUS ORDER signed by JUDGE ALLEN C WINSOR on 3/29/21. The issue of sanctions is DEFERRED. The 38 Third Amended Complaint and the 39 Corrected Third Amended Complaint are STRICKEN. 40 and 41 Motions to Dismiss are DENIED as moot. The 53 motion to intervene is DENIED without prejudice. The 46 motion to amend the litigation schedule is DENIED without prejudice. The 44 motion to compel is DENIED without prejudice. Plaintiff may file a Fourth Amended Complaint no later than 4/12/2021. The clerk will set this matter for a hearing at the United States Courthouse in Tallahassee for May 17, 2021 at 8:30 a.m. (tss) (Entered: 03/30/2021) |
| 03/30/2021 | 57 | NOTICE OF HEARINGScheduling Conference, Motion and Sanctions Hearing set for 5/17/2021 at 08:30 AM in U.S. Courthouse Tallahassee before JUDGE ALLEN C WINSOR.Per Administrative Order, to protect the health and safety of all occupants, all persons who enter any courthouse within the Northern District of Florida are required to practice social distancing measures and to wear face masks or other face coverings that cover the person’s nose and mouth while in any public or common area within the facility.Face masks are required in the Courtroom.Note: If you or any party, witness or attorney in this matter has a disability that requires special accommodations, such as a hearing impairment that requires a sign-language interpreter or a wheelchair restriction that requires ramp access, please contact the Clerk’s Office at least one week prior to the hearing (or as soon as possible) so arrangements can be made. s/TiAnn Stark Courtroom Deputy Clerk to the Honorable Allen Winsor (tss) (Entered: 03/30/2021) |
| 04/13/2021 | 58 | MOTION to Dismiss by GARY BROTHERTON, JR. (Internal deadline for referral to judge if response not filed earlier: 4/27/2021). (GERSHMAN, ROBERT) (Entered: 04/13/2021) |
| 04/21/2021 | 59 | ORDER TO SHOW CAUSE – re: 56 OMNIBUS ORDER. The court will dismiss this case without prejudice for failure to prosecute unless, by 4/27/2021, Plaintiff Phillip Howard shows cause why the court should not. Signed by JUDGE ALLEN C WINSOR on 4/21/2021. (cle) (Entered: 04/21/2021) |
| 04/27/2021 | 60 | VERIFIED FOURTH AMENDED COMPLAINT (HOWARD, PHILLIP) Modified to edit title on 4/28/2021 (rcb). (Entered: 04/27/2021) |
| 04/27/2021 | 61 | RESPONSE TO ORDER TO SHOW CAUSE. (HOWARD, PHILLIP) Modified to edit title on 4/28/2021 (rcb). (Entered: 04/27/2021) |
| 05/04/2021 | 62 | MOTION for Extension of Time to File Response/Reply Unopposed by GARY BROTHERTON, JR. (Attachments: # 1 Text of Proposed Order) (GERSHMAN, ROBERT) (Entered: 05/04/2021) |
| 05/07/2021 | 63 | Second MOTION to Intervene by DOUGLAS JOHN DEHAAN, GAYLE H DEHAAN. (PARKER, CECILY) (Entered: 05/07/2021) |
| 05/10/2021 | 64 | NOTICE OF RESCHEDULED HEARINGScheduling Conference, Motion and Sanctions Hearing reset for 6/28/2021 at 01:00 PM in U.S. Courthouse Tallahassee before JUDGE ALLEN C WINSOR.Per Administrative Order, face masks must be worn in any public or common area within the courthouse.Note: If you or any party, witness or attorney in this matter has a disability that requires special accommodations, such as a hearing impairment that requires a sign-language interpreter or a wheelchair restriction that requires ramp access, please contact the Clerk’s Office at least one week prior to the hearing (or as soon as possible) so arrangements can be made. s/TiAnn Stark Courtroom Deputy Clerk to the Honorable Allen Winsor (tss) (Entered: 05/10/2021) |
| 05/10/2021 | 65 | MOTION for Extension of Time to File Answer re 60 Amended Complaint by BARRY RYAN CHAPMAN. (GRIMLEY, JOHN) (Entered: 05/10/2021) |
| 05/11/2021 | 66 | ORDER REGARDING 60 COMPLAINT. The motions for extensions of time to respond (ECF Nos 62 , 65 ) are DENIED as moot. Signed by JUDGE ALLEN C WINSOR on 05/11/2021. (rcb) (Entered: 05/11/2021) |
| 06/28/2021 | 67 | Minute Entry for proceedings held before JUDGE ALLEN C WINSOR:Status Conference and Motion Hearing held on 6/28/2021 – written order to follow (Court Reporter Lisa Snyder (USDC-Tallahassee)) (tss) (Entered: 06/28/2021) |
| 07/06/2021 | 68 | ORDER. Defendants have until 7/23/2021 to file additional memoranda or materials relating to the sanctions issue. If they do so, Howard will have 14 days (8/6/2021) to respond. The motion to intervene (ECF No. 63 ) is DENIED as moot. Signed by JUDGE ALLEN C WINSOR on 07/06/2021. (rcb) (Entered: 07/06/2021) |
| 07/10/2021 | 69 | NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Scheduling and Motion Hearing held on 6/28/2021, before Judge Allen Winsor. Court Reporter/Transcriber Lisa Snyder, Telephone number 8505671374. Tape Number: lisasnydercr@gmail.com.
Redaction Request due 7/19/2021. Release of Transcript Restriction set for 10/15/2021. (ls) (Entered: 07/10/2021) |
| 07/22/2021 | 70 | MEMORANDUM in Support re 21 MOTION for Disbursement of Funds MOTION to Dismiss Plaintiffs’ Complaint filed by BARRY RYAN CHAPMAN. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (GRIMLEY, JOHN) (Entered: 07/22/2021) |
| 07/22/2021 | 71 | MOTION for Sanctions and Submission of Supporting Materials by Defendants GDB Capital Group, LLC and Gary Donald Brotherton, Jr. by GARY BROTHERTON, JR. (GERSHMAN, ROBERT) (Entered: 07/22/2021) |
| 08/06/2021 | 72 | RESPONSE TO 68 ORDER TO SHOW CAUSE by PHILLIP TIMOTHY HOWARD. (HOWARD, PHILLIP) Modified on 8/10/2021 to link to the Order. (kjw) (Entered: 08/06/2021) |
| 08/09/2021 | 73 | RESPONSE in Opposition re 71 MOTION for Sanctions and Submission of Supporting Materials by Defendants GDB Capital Group, LLC and Gary Donald Brotherton, Jr. filed by BARRY RYAN CHAPMAN. (GRIMLEY, JOHN) (Entered: 08/09/2021) |
| 08/13/2021 | 74 | NOTICE by PHILLIP TIMOTHY HOWARD (HOWARD, PHILLIP) (Entered: 08/13/2021) |
| 11/02/2021 | 75 | NOTICE of Filing Affidavit by PHILLIP TIMOTHY HOWARD (HOWARD, PHILLIP) (Entered: 11/02/2021) |
| 03/30/2022 | 76 | ORDER GRANTING 72 DISMISSAL WITHOUT PREJUDICE AND AWARDING FEES. Howard must pay the attorney’s fees and costs incurred by the remaining defendants in preparing and filing, ECF Nos. [40, 41, 58, 67, 70, 71, and 73]. The parties must confer regarding the amount of fees to be awarded and file a joint notice no later than April 8, 2022 indicating whether they have agreed as to the amount. The clerk will enter a judgment that says, “This case is dismissed without prejudice under Rule 41(a)(2).” Defendant’s motions to dismiss with prejudice, ECF Nos. 58 , 71 are DENIED. The court will retain jurisdiction to enter judgment on the Rule 11 and 28 U.S.C. § 1927 sanctions. The clerk will administratively close the file. Signed by JUDGE ALLEN C WINSOR on 3/30/2022. (atm) Modified on 4/1/2022 (bkp). (Entered: 03/30/2022) |
| 03/30/2022 | 77 | CLERK’S JUDGMENT re 76 ORDER GRANTING DISMISSAL WITHOUT PREJUDICE AND AWARDING FEES (atm) (Entered: 03/30/2022) |
| 04/07/2022 | 78 | Joint MOTION for Sanctions Notice of Agreement on the Amount of Sanctions Awardable Against Plaintiff to Defendants by GARY BROTHERTON, JR. (GERSHMAN, ROBERT) (Entered: 04/07/2022) |
| 04/08/2022 | 79 | ORDER CONFIRMING FEE AWARD re 78 Joint MOTION for Sanctions Notice of Agreement on the Amount of Sanctions Awardable Against Plaintiff to Defendants filed by GARY BROTHERTON, JR. The fee amount appropriate in light of the courts order awarding fees (ECF No. 76 ). Howard must pay $17,000 to Defendants GDB Capital Group, LLC and Gary Donald Brotherton and $6,900 to Barry Ryan Chapman within 30 days. Any party may file a notice of complianceor noncompliancewith this order signed by JUDGE ALLEN C WINSOR on 4/8/22. (bkp) (Entered: 04/08/2022) |
Appellate Circuit
God Goes in Front of Me and Makes the Crooked Straight and I Get to Keep My Pension
Ex-Inmate and Former Congresswoman Corrine Brown is Confident of Her Plea Deal Keepin’ Her out of Jail and Ending Her Criminal Case.
Former congresswoman Corrine Brown to take plea deal
Brown faced retrial this fall on federal fraud charges
May 17, 2021 | REPUBLISHED BY LIT: May 17, 2022
JACKSONVILLE, Fla. – Former congresswoman Corrine Brown is set to change her plea Wednesday in a federal case that involves charges of fraud and conspiracy, avoiding a retrial that was scheduled to take place this fall.
Tuesday morning, News4JAX reporter Jim Piggott spoke with Corrine Brown by phone. She said everything will come out in court tomorrow.
“I want you to know, God has been good to me,”
Brown said.
“I just talked to my pastor and I know that He goes in front of me and make the crooked straight. That’s all I can tell you, He’s good.”
Former U.S. Rep. Corrine Brown is set to change her plea Wednesday in a federal case that involves charges of fraud and conspiracy, avoiding a retrial that was scheduled to take place this fall.
Brown was indicted in 2016 on charges that included conspiracy, wire fraud, and tax fraud, on accusations that she used contributions to the One Door for Education charity for personal expenses.
Brown was convicted on some of the charges in May 2017, and began a five-year prison sentence in January 2018. Brown was released in April 2020, due to coronavirus concerns.
Following her conviction, Brown appealed the guilty verdict, arguing the trial judge wasn’t justified in replacing a juror who said the Holy Spirit told him Brown was not guilty.
A three-judge panel of the 11th Circuit of the U.S. Court of Appeals initially upheld Brown’s conviction.
Brown’s attorneys then asked for a rehearing before the full 11th Circuit, known as an “en banc” hearing. In May 2021, the appellate court reversed the conviction with a 7-4 decision, sending the case back to the district court for a potential retrial.
In October 2021, we learned that prosecutors planned to re-try Brown on the felony counts she faced in her 2017 trial.
At the time, we learned prosecutors had already extended her a plea deal to avoid being retried and the possibility of a return to prison, an offer she rejected at the time.
Following the appointment of a new defense team, Brown’s retrial was set to take place in September of 2022.
News4JAX Jim Piggott spoke with attorney Curtis Fallgatter,
“(Jim) Are you surprised at all?
(Curtis) A little bit, but not terribly because of the age of the case, the complexity of the case, the number of issues, reversal on appeal issues about a retrial, can I get a conviction, the age of Brown.”
The court document indicating that Brown will be changing her plea does not indicate what charges she may be pleading guilty to, or what sentence could potentially be imposed.
Fallgatter doesn’t believe Brown will serve any additional time.
He said she would not agree to that, and the agreement should be an end to the case.
Brown is getting her pension, and that likely will not change.
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Appellate Circuit
Foreclosure Sanctions Maxed Out After Lapin And Leichtling Rip Opposing Counsel
Julio Marrero and Marrero Law continue to file patently frivolous removals and in bad faith sayeth Associate Jan Williams of LL-Lawfirm.com
Third District Court of Appeal
State of Florida
Opinion filed April 20, 2022.
Not final until disposition of timely filed motion for rehearing.
Nos. 3D21-0373 & 3D21-0668
Lower Tribunal No. 16-28602
Max Kraushaar, et al.,
Appellants, vs.
Wells Fargo Bank, N.A., etc.,
Appellee.
APR 20, 2022 | REPUBLISHED BY LIT: APR 27, 2022
Appeals from the Circuit Court for Miami-Dade County, Barbara Areces, Judge.
Marrero, Chamizo, Marcer Law, LP, and Julio C. Marrero, for appellants.
Lapin & Leichtling, LLP, and Justin G. Prociv, for appellee.
Before FERNANDEZ, C.J., and LINDSEY, and MILLER, JJ. PER CURIAM.
Affirmed.
See Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985);
Person v. Bank of N.Y. Mellon Tr. Co., 201 So. 3d 842, 843 (Fla. 4th DCA 2016).
Wells Fargo Bank N.A. v. Kraushaar
(1:21-cv-21156)
District Court, S.D. Florida
MAR 26, 2021 | REPUBLISHED BY LIT: APR 25, 2022
ORDER
THIS CAUSE comes before the Court on Plaintiff Wells Fargo Bank N.A.’s Motion to Remand, for Sanctions Pursuant to the Court’s Inherent Power to Sanction, and for Reasonable Fees and Costs (the “Motion”) [ECF No. 6].
The Court has reviewed the Motion and the record and is otherwise fully advised. For the reasons that follow, the Motion is granted.
On November 4, 2016, Plaintiff, as Trustee for AEGIS Asset Backed Securities Trust Mortgage Pass Through Certificates Series 2004-4, brought a mortgage foreclosure action against Defendants in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida (“State Circuit Court”).1
On March 26, 2021, Defendants Max Kraushaar and Olinda Kraushaar removed this action from the State Circuit Court (the “Notice of Removal”). [ECF No. 1]. On April 5, 2021,
1 The Court takes judicial notice of the State Circuit Court’s online docket and the documents therein in the original state action titled Wells Fargo Bank N.A. v. Max Kraushaar et al., Case No. 2016-028602-CA-01. See Fed. R. Evid. 201; United States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987) (“A court may take judicial notice of its own records and the records of inferior courts.”).
Plaintiff filed the instant motion, arguing that Defendants’ Notice of Removal is facially deficient and fails to show that removal is proper. [ECF No. 6].
Plaintiff also argues that the Court lacks subject matter jurisdiction over this action. Id.
In addition, the Motion details the recent string of improper removals in state post-judgment foreclosure actions by Julio Marrero, Esq., and the law firm Marrero, Chamizo, Marcer Law LP, who represent Defendants. Id.
Defendants failed to timely respond to the Motion.
This error is fatal for Defendants because “on a motion to remand, the removing party bears the burden of showing the existence of federal subject matter jurisdiction.”
Williams v. Aquachile, Inc., 470 F. Supp. 3d 1277, 1279 (S.D. Fla. 2020) (quoting Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1343 (11th Cir. 2009)).
Because Defendants failed to timely respond to the Motion, they fail to establish the Court’s subject matter jurisdiction.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Plaintiff Wells Fargo Bank N.A.’s Motion to Remand, for Sanctions Pursuant to the Court’s Inherent Power to Sanction, and for Reasonable Fees and Costs, [ECF No. 6], is GRANTED.
2. The above-styled case is REMANDED to Eleventh Judicial Circuit in and for Miami-Dade County, Florida.
3. Plaintiff Wells Fargo Bank N.A. shall be awarded $500.00 as reasonable costs and attorney’s fees, which Plaintiff shall recover from Defendants Max Kraushaar and Olinda Kraushaar and their counsel, Julio Marrero, Esq., of the law firm Marrero, Chamizo, Marcer Law LP, jointly and severally.
4. Any pending motions are DENIED as moot.
5. This case is CLOSED.
DONE AND ORDERED in Chambers in Miami, Florida, this 21st day of April, 2021.
JUDGE DARRIN P. GAYLES, SD FL.
Motion for Sanctions
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U.S. District Court
Southern District of Florida (Miami)
CIVIL DOCKET FOR CASE #: 1:21-cv-21156-DPG
| Wells Fargo Bank N.A. v. Kraushaar et al Assigned to: Judge Darrin P. Gayles
Cause: 12:1441 Federal Mortgage Foreclosure |
Date Filed: 03/26/2021 Date Terminated: 04/21/2021 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Federal Question |
| Plaintiff | ||
| Wells Fargo Bank N.A. as Trustee for AEGIS Assest Backed Securities Trust Mortgage Pass Through Certificates Series 2004-4 |
represented by | Jan Timothy Williams Lapin & Leichtling, LLP 255 Alhambra Circle Suite 1250 Coral Gables, FL 33134 3058300421 Email: jwilliams@ll-lawfirm.com ATTORNEY TO BE NOTICED |
| V. | ||
| Defendant | ||
| Max Kraushaar | represented by | Julio Cesar Marrero Marrero, Chamizo, Marcer Law, LP 3850 Bird Road, Suite 902 Coral Gables, FL 33146 305-446-0163 Email: eqramul@marrerorealestatelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED |
| Defendant | ||
| Olinda Kraushaar | represented by | Julio Cesar Marrero (See above for address) ATTORNEY TO BE NOTICED |
| Date Filed | # | Docket Text |
|---|---|---|
| 03/26/2021 | 1 | NOTICE OF REMOVAL (STATE COURT COMPLAINT – Complaint for Foreclosure) Filing fee $ 402.00 receipt number AFLSDC-14555290, filed by Olinda Kraushaar, Max Kraushaar.(Marrero, Julio) (Entered: 03/26/2021) |
| 03/26/2021 | 2 | Clerks Notice of Judge Assignment to Judge Darrin P. Gayles.Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Edwin G. Torres is available to handle any or all proceedings in this case. If agreed, parties should complete and file the Consent form found on our website. It is not necessary to file a document indicating lack of consent.
Pro se (NON-PRISONER) litigants may receive Notices of Electronic Filings (NEFS) via email after filing a Consent by Pro Se Litigant (NON-PRISONER) to Receive Notices of Electronic Filing. The consent form is available under the forms section of our website. (scn) (Entered: 03/26/2021) |
| 03/26/2021 | 3 | Clerks Notice to Filer re: Electronic Case. State Court Records not included. Filer is instructed to file a Notice (Other) with the State Court Records attached within 24 hours. (scn) (Entered: 03/26/2021) |
| 03/26/2021 | 4 | Clerks Notice to Filer re: Electronic Case. No Civil Cover Sheet. Filer is instructed to file a Notice (Other) with the Civil Cover Sheet attached within 24 hours of the notice. (scn) (Entered: 03/26/2021) |
| 04/05/2021 | 5 | NOTICE OF COURT PRACTICE. Unless otherwise specified by the Court, every motion shall be double-spaced in Times New Roman 12-point typeface. Multiple Plaintiffs or Defendants shall file joint motions with co-parties unless there are clear conflicts of position. If conflicts of position exist, parties shall explain the conflicts in their separate motions. Failure to comply with ANY of these procedures may result in the imposition of appropriate sanctions, including but not limited to, the striking of the motion or dismissal of this action. Signed by Judge Darrin P. Gayles (jsi) (Entered: 04/05/2021) |
| 04/05/2021 | 6 | Plaintiff’s MOTION to Remand to State Court for Sanctions Pursuant to the Court’s Inherent Power to Sanction, and for Reasonable Fees and Costs by Wells Fargo Bank N.A.. Attorney Jan Timothy Williams added to party Wells Fargo Bank N.A.(pty:pla). (Williams, Jan) (Entered: 04/05/2021) |
| 04/21/2021 | 7 | Order Granting 6 Plaintiff’s MOTION to Remand to State Court for Sanctions Pursuant to the Court’s Inherent Power to Sanction, and for Reasonable Fees and Costs filed by Wells Fargo Bank N.A. The above-styled case is REMANDED to Eleventh Judicial Circuit in and for Miami-Dade County, Florida. Closing Case. Signed by Judge Darrin P. Gayles on 4/21/2021. See attached document for full details. (scn) (Entered: 04/21/2021) |
| 04/21/2021 | 8 | Transmittal Letter Sent with DE#7 to: Eleventh Judicial Circuit in and for Miami-Dade County, Florida. State Court Case Number: 16-028602-CA-01. (scn) (Entered: 04/21/2021) |
| 05/10/2021 | 9 | ACKNOWLEDGMENT OF RECEIPT as to 8 Transmittal Letter Sent. (scn) (Entered: 05/10/2021) |
Appellate Judges
April 2022 Foreclosure Stay Raises Serious Questions as to ‘Divorce Status’ Of Tim and Jennifer Howard
We suggested our doubts in our first article and our suspicions are only further endorsed by the foreclosure of their former marital home.
TOWD POINT MORTGAGE TRUST 2016 1 US BANK NATIONAL vs HOWARD, PHILLIP TIMOTHY & JENNIFER CROUSE, ET AL.
MAY 13, 2021 | REPUBLISHED BY LIT: APR 17, 2022
THE SEC NEEDS TO TAKE JUDICIAL NOTICE
Note: This is only one property, there is the beach home, etc.
Considering the history of the lawyer Phillip Tim Howard and his deception, along with our review of the court documents, including the ongoing SEC investigation and complaint, we’re pretty sure based on our audit, this divorce is a sham, but it’s up to the government and related authorities to review and prosecute as necessary.
This con man and ‘the wife’ should be behind bars, not selling assets and avoiding forfeiture of funds recovered. Any net proceeds of their ‘extravagant lifestyle’ should be returned to duped investors – and according to court records, many victims lost their entire life savings.
Motion to Stay While Loss Mitigation is Pending with Lender and Order Granting Stay
(The original complaint is also included, which details the facts.).
Federal Judge Winsor in a related case and recent opinion stated;
“To avoid confusing the two Howards, this order will refer to Jennifer Howard as “the wife,” despite the fact that they are no longer married.”
The Certificate of Service Sends the Mail to the Same Address for both Tim and Jennifer Howard in Jacksonville, Fl.
The Certificate of Service confirms JOINT Counsel for the Howards’ is an admitted foreclosure defense firm.
The Residential Home is Currently On the Market for Sale and the Court filings show this Realtor as the Listing Agent
SALES ASSOCIATE
Joana is a native of Kentucky (Go Wildcats!) but has lived in the Tallahassee area over 20 years. Prior to becoming a licensed real estate agent, she was a legal assistant and then a stay at home mom for many years. She is the mother of four wonderful children who keep her on her toes! She enjoys the outdoors, traveling and spending time with friends and family.
Meeting new people and helping clients whether they are buying or selling a home is Joana’s passion. Her client dedication and love of helping others are what motivate her most. A focused listener, Joana is known for her intuition and diligence while employing genuine concern and honesty as she creates a positive experience for both sides in any real estate transaction.
Her business approach is simply this: she listens to the client’s needs and matches them to the right property, then assures a smooth and efficient transaction. Her bubbly and outgoing personality and her ability to “talk to anyone” contribute to her success when negotiating deals for her clients.
850-544-2120
joanavrealty@gmail.com
The Home is Shown as ‘Under Contract’ as at 4/17/2022 for $1,098,000.
Let’s hope the buyer has a good real estate lawyer to check out the liens, loans and why the HOA is a defendant in the foreclosure proceedings.
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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.
Gov. Ron DeSantis Is Aligned With Totalitarianism and His Laws Confirm He’s “The Unwanted Dictator”
God Goes in Front of Me and Makes the Crooked Straight and I Get to Keep My Pension
When the World’s Bankers and Governments Are Behavin’ Like Thieves and Criminals, It Really Is Time to Object, Vociferously
Who is Catalina Azuero, a Liar Lawyer at Goodwin Procter LLP?
Two Florida Foreclosure Lawyers Matt Fuqua and Clay Milton Commit the Most Abhorrent Act
Who is Liar Lawyer Sabrina Rose-Smith of Goodwin Procter, LLP?
April 2022 Foreclosure Stay Raises Serious Questions as to ‘Divorce Status’ Of Tim and Jennifer Howard
Rewind 2008: The Home Snatchers Stole Millions of Homes, Lives and Citizen’s Trust By Unimaginable Fraud
Thieves, Drunks and Scoundrels. Florida Bar’s Lyin’ Lawyers (August 2021)
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Acceleration2 years agoWho is Catalina Azuero, a Liar Lawyer at Goodwin Procter LLP?
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Bankruptcy3 years agoTwo Florida Foreclosure Lawyers Matt Fuqua and Clay Milton Commit the Most Abhorrent Act
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Appellate Circuit2 years agoWho is Liar Lawyer Sabrina Rose-Smith of Goodwin Procter, LLP?
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Eleventh Circuit1 year agoOperation Whiteout: Lyin’ Senior Judge Kenneth “Magic” Marra Tosses CFPB Claims
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Appellate Circuit2 years agoFormer Florida Foreclosure Defense Lawyer Indicted
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Eleventh Circuit2 years agoFlorida Insurance Defense Lawyer Curtis Lee Allen Faces Ethics Complaint Filed by the Florida Bar
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Appellate Circuit2 years agoSenate Judiciary and Code of Conduct Snubbed by Judges Lagoa and Luck as they Refuse to Recuse in Florida Voting Case
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Appellate Circuit2 years agoDemocratic Members of the Senate Judiciary Have Suggested Judge’s Luck and Lagoa’s Non-Recusal Violates the Code of Conduct
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