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Fl. Lawyer Committed Criminal Mortgage Fraud which was Not Reported by Judge Marra

Mario German is a Florida attorney with a checkered past, based upon review by LIT. We found a clear case of closing attorney mortgage loan fraud and now he’s allegedly finchin’ escrow funds.

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LIT COMMENTARY

Now He’s Stealin’ Again.

Mario German is a Florida attorney with a checkered past, based upon review by LIT. We found a clear case of closing attorney mortgage loan fraud by Florida attorney Mario D. German which was never reported to the prosecutor or Florida Bar by S.D. Fl.  District United States Judge Kenneth A. Marra.

This type of scheme normally comes with lengthy jail terms, for example, see the case of Phillip Graham Rose, a closing attorney from Raleigh, was sentenced to 42 months and ordered to pay $1.6 million to the victims of the scheme.

A good example and explanation of this type of scheme is detailed by the Eleventh Circuit in US v Hill, a straw buyer mortgage fraud case, which we cite just a small snippet;

“The higher the property value the larger the loan, the larger the loan the higher the sales price, and the higher the sales price the larger the profit. In order to obtain loans for the highest possible property value, and reap the highest possible profit, Hill and his associates made a multitude of misrepresentations to lenders. They lied a lot. They lied about the true buyers, and they lied about the source of the down payments, and they lied about the value of the properties, and they lied about the income and employment of the buyers, and they lied about whether the buyers would occupy the properties, and they lied about whether any other properties owned by the buyers were being leased.”

U.S. v. Hill, 643 F.3d 807, 820 (11th Cir. 2011)

There is no way that Judge Marra was not aware of exactly what Mario German’s role was in this case, as outlined in his detailed order, yet he chose to blank the mortgage fraud.

Fast forward to 2020/21 and there’s two active cases, one now remanded to Florida State Court claiming theft of $202k and the other is in S.D. Fl. Federal Court, wherein German has stolen escrow funds and in the state court case he’s come up with a ‘hacker theory’ as to why those escrow funds vanished. LIT suggests the hacker and fraudster is right in view, namely the thievin’, schemin’ rogue lawyer called Mario German.

The most recent filing is a customer from Texas, who was buying used catalytic converters from suppliers in South America, only to find that his funds which were wired to German’s escrow, the $178k or so would allegedly be finched by German for his own personal use.

These are just the 3 cases we discovered and have reached court. The question remains, are these the only instances of this type of criminal behavior?

Below LIT has provided the most relevant filings for these three Mario German cases in the hopes that the FBI, DOJ, the Florida Bar and the clients attorneys have access to this information and act accordingly.

It’s highly unlikely the federal court in Florida or the judges therein will act appropriately,  as they are known to exclude and hide key evidence from litigants before the court.

The $178k Theft Case

Global Resource, Inc. v. Mario D. German Law Center, P.A. (9:21-cv-80561) District Court, S.D. Florida

ONGOING…

LIF Update: JULY 9, 2021

Judge Cannon issues a training guide on requirements for a default judgment for two of the defendants only (Nexus and Krantz), and which excludes Mario German and his law firm. Deadline for response is 20 July, 2021 and it better be an A Grade reply.

LIF Update: JULY 4, 2021

Judge Cannon denied default judgment while a ‘show cause’ order was pending. That expired on Wednesday, June 28th, 2021.  You would have expected an order on Thursday 29th entering default judgment and reporting the rogue lawyer to task via sanctions and he should be reported to the prosecutor. Instead, nothing. That liberal delay is never applied to civil litigants, it should not apply to a thievin’ lawyer.

LIF Update: May 15, 2021

When you read Mario German’s pro se reply, it just reminds us of LIT’s article and review of the attorney fraud perpetrated in the case at the First Circuit. You can read it here and make your own assumptions, but we can see that German is being evasive and struggling to answer the complaint with general and unavailing denials.

Michael J. Krantz, Disbarred Lawyer, named Defendant along with his company Nexus.

Krantz answers for company and himself (although that’s not clearly identified on page 1 of his reply, he states as much later on). As we’ve said before, you’re fine pro se in federal court if you are defending yourself, but for NEXUS, as a registered company, you have to hire a lawyer. You cannot represent the firm pro se.

Insofar as his answer, it’s hard to swallow when you read the reason for the actions which led up to this former lawyer being disbarred in 2015 – effectively the same allegations as here, misappropriation of escrow funds in a wire transfer arrangement.

IN RE: MICHAEL J. KRANTZ NO. BD-2015-073

S.J.C. Judgment of Disbarment entered by Justice Spina on August 10, 2015.1 SUMMARY2

This matter came before the Board of Bar Overseers and the Court on the respondent’s affidavit of resignation pursuant to Supreme Judicial Court Rule 4:01, 15. In the affidavit, the respondent acknowledged that the material facts summarized below could be proved by a preponderance of the evidence.

The respondent was admitted to practice in the Commonwealth on October 22, 1986.

In December 2011, in his capacity as an attorney, the respondent agreed to assist in the transfer of 15,500 Euros, with a U.S. dollar value of approximately $19,500, from an account maintained by his client in Lebanon to an account in the United States, and to hold the funds in escrow.

Between December 2011 and about July 2012, the respondent intentionally misappropriated the escrow funds, and did not return the funds to his clients on demand and on the termination of the representation.

This conduct violated the Massachusetts Rules of Professional Conduct, including, among others, Mass. R. Prof. C. 1.15(b) and (c), 1.16(d), and 8.4(c) and (h).

In addition, the respondent engaged in the unauthorized practice of law in Florida,

and operated a law office and used letterhead and other documents falsely identifying himself as practicing in a law firm in Florida, when he was a sole practitioner and was not licensed in Florida.

This conduct violated Mass. R. Prof. C. 5.5(a), 7.1, and 7.5(a).

On October 3, 2014, bar counsel filed a petition for discipline. On July 1, 2015, the respondent filed an affidavit of resignation.

On July 13, 2015, the Board of Bar Overseers voted to recommend that the affidavit of resignation be accepted and the respondent be disbarred forthwith.

On August 10, 2015, the Supreme Judicial Court entered a judgment accepting the affidavit of resignation and disbarring the respondent from the practice of law in the Commonwealth effective immediately upon the entry of the judgment.

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

2 Compiled by the Board of Bar Overseers based on the record filed with the Supreme Judicial Court.

ORDER FOLLOWING STATUS CONFERENCE

THIS CAUSE comes before the Court following a Status Conference Hearing held on May 28, 2021 [ECF No. 28]. For the reasons discussed in open court, the Court hereby ORDERS AND ADJUDGES as follows:

1. Defendant Nexus Capital Management, LLC, shall obtain counsel permitted to practice law before this Court and have counsel enter a notice of appearance on the electronic docket by no later than June 14, 2021.

2. Furthermore, by no later than June 14, 2021, Defendant Michael J. Krantz is directed to either: (1) retain counsel permitted to practice before the Court and notify the Court of such, or (2) file a Notice of Intent to Proceed Pro Se.

3. Defendant Michael J. Krantz also is directed to contact the Clerk of Court’s Office to ensure that he receives e-mail notifications of all activity on the Court docket.

4. The Court reserves ruling on Plaintiff’s pending Motion to Strike Pleadings [ECF No. 18] until further notice.

5. The Clerk is directed to mail a copy of this Order to the address on file for Mr. Michael J. Krantz.

DONE AND ORDERED in Chambers at Fort Pierce, Florida this 28th day of May 2021.

AILEEN M. CANNON
US District Judge

cc: counsel of record

U.S. District Court
Southern District of Florida (West Palm Beach)
CIVIL DOCKET FOR CASE #: 9:21-cv-80561-AMC

Global Resource, Inc. v. Mario D. German Law Center, P.A. et al
Assigned to: Judge Aileen M. Cannon
Cause: 12:0635 Breach of Insurance Contract
Date Filed: 03/16/2021
Jury Demand: None
Nature of Suit: 190 Contract: Other
Jurisdiction: Diversity

 

Date Filed # Docket Text
06/21/2021 33 PAPERLESS ORDER denying without prejudice 31 Plaintiff’s Motion for Entry of Final Default Judgment against Defendants Nexus Capital Management, LLC, and Michael Krantz. The Court’s Order to Show Cause 32 directed Defendants Nexus Capital Management, LLC, and Michael Krantz to show written cause for their failure to comply with Court orders by June 28, 2021. In addition, the Order to Show Cause 32 provides Defendants Nexus Capital Management, LLC, and Michael Krantz one final opportunity to comply with the Court’s Order 29 requiring that they retain counsel qualified to practice before the Court, or, in the case of Mr. Krantz, to indicate an intention to proceed pro se in this matter. Accordingly, Plaintiff’s Motion is premature at this juncture and may be refiled at a later date should Defendants Nexus Capital Management, LLC, and Michael Krantz fail to comply with the Court’s Order to Show Cause. Signed by Judge Aileen M. Cannon on June 21, 2021. (ahz) (Entered: 06/21/2021)
06/17/2021 32 ORDER TO SHOW CAUSE AS TO PRO SE DEFENDANTS MICHAEL J. KRANTZ AND NEXUS CAPITAL MANAGEMENT, LLC – Show Cause Response due by 6/28/2021. Signed by Judge Aileen M. Cannon on 6/17/2021. See attached document for full details. (ail) (Entered: 06/17/2021)

COMPLAINT FOR DAMAGES

COMES NOW Plaintiff Global Resource, Inc., who brings this Complaint against Defendants on the following grounds:

JURISDICTION AND VENUE

1. This Court has diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332. The matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, Plaintiff is a Delaware corporation with its principal place of business in Texas, and Defendants are citizens of Florida, as detailed in paragraphs 3 through 9, herein.

2. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because all or a substantial part of the events or omissions giving rise to Plaintiff’s claims occurred in Palm Beach County, Florida, in the Southern District of Florida.

THE PARTIES

3. Plaintiff Global Resource, Inc. (hereinafter “Global Resource”) is a Delaware corporation formed in 2004 with its principal place of business in the State of Texas. Global Resource’s sole director and owner is Sean Ramey (hereinafter “Ramey”), an individual who resides in Houston, Texas.

 

4. Defendant Mario D. German Law Center, P.A. (hereinafter “German Law Center”) is a Florida for-profit corporation formed in 1999 with its principal address at 55 N.W. Fifth Avenue 400, Boca Raton, FL 33432. On information and belief, German Law Center’s sole officer and director is Mario D. German, an individual who resides in Palm Beach County, Florida.

5. Defendant Nexus Capital Management, LLC (hereinafter “Nexus”) is a Florida limited liability company formed on or about August 1, 2013 with its principal address at 1374 Cypress Way, Boca Raton, FL 33486. Nexus’ sole member and manager is Defendant Michael
J. Krantz, an individual who resides in Palm Beach County, Florida.

6. Defendant Mario D. German (hereinafter “German”) is an individual who resides in Palm Beach County, Florida. German is the Director of Defendant German Law Center.

7. Defendant Michael J. Krantz (hereinafter “Krantz”) is an individual who resides in Palm Beach County, Florida. Krantz is the sole member, with the title of “Manager”, for Defendant Nexus.

FACTUAL ALLEGATIONS APPLICABLE TO ALL CLAIMS

8. Plaintiff Global Resource is a company engaged in the business of, among other things, purchasing automotive and industrial materials and refining them to extract a variety of residual metal compounds.

9. In connection with these activities, in or around May 2020, Global Resource entered into agreements with three suppliers for catalytic converters, evidenced by purchase orders attached as Exhibits 1-3 hereto. Specifically, those agreements provided the following:

a. Pursuant to a purchase order dated June 25, 2020, Global Resource agreed to order 1,500 kilograms of catalytic converters from a Venezuelan supplier for
$75,000 [Exhibit 1];

b. Pursuant to a purchase order dated July 12, 2020, Global Resource agreed to order 1,000 kilograms of catalytic converters from a Bolivian supplier for
$55,000 [Exhibit 2]; and

c. Pursuant to a purchase order dated July 13, 2020, Global Resource agreed to order 2,060 kilograms of catalytic converters from a Brazilian supplier for
$86,520 [Exhibit 3].1

10. Because the Suppliers were located outside the United States and did not have merchant accounts set up to receive funds directly from Plaintiff’s corporate credit account, Plaintiff and the Suppliers set out to find a solution to facilitate payment.

11. In or around May 2020, one of Plaintiff’s Suppliers referred Plaintiff to Angely Quintero, an agent of Defendant Nexus. Quintero introduced Plaintiff to Nexus, which Quintero represented was a legitimate payment service that could facilitate payments from Plaintiff to the Suppliers.

12. Quintero did not disclose to Plaintiff that Quintero had an arrangement with at least one Supplier to receive a 2.5% commission for referring Plaintiff to Nexus.

13. In or around May 2020, Quintero set up an introductory phone call between Ramey, acting for the Plaintiff, Defendant Krantz, and Joseph J. Camargo, acting as the agent for German Law Center.

1      The three suppliers will collectively be referred to herein as the “Suppliers” and the purchase orders will collectively be referred to herein as the “Purchase Orders”.

14. During that phone call, Krantz and Camargo made the following representations about Nexus and German Law Center, respectively, to Ramey:
a. Nexus was frequently engaged in providing payment services to companies and high net worth individuals who needed to transfer money overseas, including to and from Venezuelan citizens, which could be challenging to an inexperienced layperson;

b. Nexus had a large book of clients who could attest to Nexus’ legitimacy and efficacy as a payment servicer;

c. Nexus frequently, if not exclusively, utilized bank accounts belonging to German Law Center as escrow accounts for facilitating payments between its clientele;

d. German Law Center, whose representative Camargo was on the call, recognized, accepted, and actively participated in this business relationship by offering up its bank accounts for use as escrow accounts and directing funds pursuant to Nexus’ and Nexus’ clients’ instructions; and

e. Nexus and German Law Center were capable of and prepared to provide their services to Plaintiff by acting as transfer agent for the payment of funds from Plaintiff to the Suppliers.

15. Shortly thereafter, the Suppliers each signed an agreement with Nexus, titled “ESCROW / TRUST (Fiducia) AGREEMENT”, whereby Nexus represented that it would facilitate the payments from Plaintiff to the Suppliers, acting as “agent” for the transactions in exchange for a commission of 2.5% of the total payment price on each transaction (hereinafter the “Escrow Agreement(s)”). One of those agreements is attached hereto, unsigned by the supplier. [See Exhibit 4]. Discovery should yield the executed copies of these agreements, which are not in Plaintiff’s possession.
16. In July 2020, Nexus sent a letter to Plaintiff confirming Nexus’ arrangement with the Suppliers (hereinafter the “Confirmatory Letter”). Specifically, Nexus stated:
a. Nexus is retained primarily to provide Consulting, Custody, Paymaster, Escrow Services to facilitate the purchase, sale and delivery of assets to the Clients in the most secure and expeditious manner;

b. To provide the fastest most streamlined to facilitate Purchase and Sales of their assets, Nexus has engaged several Professional Associations (PA) and Law Firms to assist in these operations [sic]; and

c. Nexus is utilizing Attorney IOLTA accounts at principal USA banks to receive the funds for these transactions.

17. The Confirmatory Letter also included a list of five bank accounts at Chase, Bank of America, and Wells Fargo with corresponding Swift Codes, routing numbers, and account numbers. Under the list of bank accounts, Defendant Krantz affixed his signature on behalf of Defendant Nexus accompanied by the statement: “I hereby swear, under penalty of perjury, that the information provided herein is true and correct.” [See Exhibit 5].

18. Nexus represented to Plaintiff that it would “utilize” Defendant German Law Center for the transactions at issue. Notably, one of the Bank of America accounts listed in the Confirmatory Letter with the account number ending in “4048” was German Law Center’s IOLTA (Interest on Lawyers Trust Accounts) account. Id.

19. To fulfill Plaintiff’s obligations to the Suppliers pursuant to the Purchase Orders, and based on Defendants’ representations that they would facilitate Plaintiff’s payments, Plaintiff wired funds intended for disbursement to the Suppliers to German Law Center’s IOLTA account. Plaintiff selected the IOLTA account specifically because, among other things, Plaintiff had a general understanding that lawyer trust accounts were subject to stricter regulation.

20. Plaintiff initiated the following wires to German Law Center’s Bank of America account with the account number ending in “4048”:

21. Plaintiff wired a total of $178,400 to German Law Center. As detailed in the preceding table, the “Memo to Payee” in connection with each wire stated that the funds were intended for payment of a particular Supplier.

22. On July 1, 2020, Defendant Krantz sent an e-mail to Plaintiff instructing Plaintiff to fully execute a form titled “Release of Funds in Escrow” (hereinafter “July 1 Release Agreement”). [See Exhibit 6].

23. The July 1 Release Agreement, printed on Nexus letterhead and attached to that email, was formatted as a letter to Defendant German Law Center instructing it to release Plaintiff’s previously deposited funds for the benefit of the Suppliers.

24. Specifically, the Release Agreement instructed German Law Center to undertake the following:

You are hereby authorized to release funds sent in or otherwise deposited by me, Mr. Sean Ramey into your IOLTA account in the amount of SEVENTY TWO THOUSAND FIVE HUNDRED and 0/00 US Dollard ($72,500 USD) as provided by this agreement.

MARIO D. GERMAN LAW CENTER P.A. has received the above transfer and is in receipt of your transfer or wire receipt, and is prepared to distribute funds according to this agreement.

MARIO D. GERMAN LAW CENTER P.A. is hereby directed to disburse said funds held in escrow in the following manner; NINTY [sic] SEVEN AND A HALF Percent (97.5%) of gross transfer is to be released as directed solely by Mr. Sean Ramey (the Remitter) without delay and or limitations after the funds have fully cleared and credited into MARIO D. GERMAN LAW CENTER, P.A. Escrow Account. I, Sean Ramey direct these funds are to be distributed to Nexus Capital Management for the benefit of [one of the Suppliers]. The balance of funds held in Escrow by MARIO D. GERMAN LAW CENTER, P.A. is to be retained by Mario D. German Law Center, P.A. as fee for the Escrow and Paymaster services provided.

(all emphasis in original).

25. Additionally, the final paragraph of the Release Agreement contained the following language, titled “Disclosure”:
Once this document is duly executed it is a binding agreement that carries my full authority without any limitations whatsoever, and furthermore once the funds are transferred and or transmitted to the banking instructions as described herein above all liability and or responsibility on the part of MARIO D. GERMAN LAW CENTER, P.A. and/or Mario D. German, Esq. and or their officers is completely released without limitations and with prejudice.

(all emphasis in original).

26. On July 1, Ramey, acting for Plaintiff, executed and returned the July 1 Release Agreement to Krantz. [See Exhibit 7].

27. On July 11, 2020, Ramey executed an identical “Release of Funds in Escrow” form directing German Law Center to release 97.5% of $52,500 Plaintiff previously deposited for the benefit of the second Supplier. [See Exhibit 8].

28. On July 24, 2020, Plaintiff executed an identical “Release of Funds in Escrow” form directing German Law Center to release 97.5% of $37,900 Plaintiff previously deposited for the benefit of the third Supplier. [See Exhibit 9].

29. Defendants did not release the funds as instructed.

30. In reality, Defendants never intended to complete the transactions at issue, and, instead, transferred the money to themselves and/or for their own benefit.

31. None of the Suppliers ever received the funds deposited in German Law Center’s account for their benefit.

32. On August 14 and August 19, Plaintiff contacted Krantz and Camargo via email to inquire as to the status of the funds. Neither Krantz nor Camargo responded to these emails. See Exhibits 10 and 11.

33. On October 27, 2020, Ramey spoke with Camargo––who was, at all times acting for The German Law Center––over the phone. During this call, Camargo, on behalf of German Law Center, agreed to advance $20,000 to one of the Suppliers to facilitate shipment of the goods (which were never delivered to Plaintiff due to lack of payment). In support of this transparent stalling tactic, Defendants fabricated a wire transfer confirmation. [See Exhibit 12].

34. German Law Center never intended to pay this advance, never paid this advance, and in fact made this representation to convince Plaintiff that Defendants had not stolen Plaintiff’s funds or committed a fraud.

35. On December 14, 2020, Plaintiff emailed Krantz and Camargo once again requesting return of the funds. [See Exhibit 13]. Neither Krantz nor Camargo responded.

36. During this time period of August through December 2020, Plaintiff had several phone calls with Camargo acting for The German Law Center, who provided a variety of excuses as to what happened to Plaintiff’s money, including that (a) the money could not immediately be disbursed to the Suppliers due to anti-money laundering regulations governing large transactions with foreign individuals/entities; (b) that the Suppliers provided the wrong account numbers for disbursement; and (c) that the money had been invested in another venture and earning interest.

37. Defendants have avoided Plaintiff, concealed what happened to Plaintiff’s money, and made representations designed to lull Plaintiff into believing nothing had gone wrong so that Plaintiff would not exercise its legal rights or alert the criminal authorities.

38. Defendants fraudulently induced Plaintiff to transfer funds to German Law Center’s IOLTA account so that they could keep Plaintiff’s money for themselves or use the money for their benefit. Indeed, that is precisely what they did.

39. Apparently, Defendants did not limit their scheme to Plaintiff as they have been sued by other victims for similar fraudulent behavior, including by Recycled Paper International, LLC in the case styled Recycled Paper International, LLC v. Mario D. German Law Center, P.A., et al., Case No. 9:20-cv-81888 (S.D. Fla., Amended Complaint filed Oct. 22, 2020).

40. All conditions precedent to bringing this lawsuit have been satisfied or waived.

CLAIM I

CONVERSION AGAINST ALL DEFENDANTS

41. Plaintiff re-alleges and adopts all of the allegations set forth in paragraphs 1 through 40 above.

42. This is an action for conversion against German Law Center, German, Nexus, and Krantz.

43. German Law Center and Nexus, acting through the individuals discussed above, induced Plaintiff to transfer funds to German Law Center’s IOLTA account in connection with an agreement that Defendants would facilitate payments to Plaintiff’s Suppliers.

44. Plaintiff transferred money to German Law Center’s IOLTA account in connection with an agreement that Defendants would facilitate payments to Plaintiff’s Suppliers.

45. Defendants then converted the money by removing it from German Law Center’s IOLTA account and using it for various improper purposes or otherwise retaining it for themselves.

46. At all material times, Plaintiff was the rightful owner of the monies transferred to German Law Center’s IOLTA account.

47. Plaintiff has demanded the return of his monies, but the money has not been returned.

48. Plaintiff has been deprived of its possession of money in a manner that equates to conversion.

WHEREFORE, Plaintiff demands a judgment against Defendants, jointly and severally, for actual damages in an amount to be determined by the trier of fact, costs of the lawsuit, pre- and post-judgment interest, and such other relief as the trier of fact deems just and appropriate.

CLAIM II

CONSPIRACY TO CONVERT ASSETS AGAINST GERMAN AND KRANTZ

49. Plaintiff re-alleges and adopts all of the allegations set forth in paragraphs 1 through 40 above.

50. In or around May 2020, individual Defendants German and Krantz agreed to a series of unlawful acts that would convert Plaintiff’s money for their own benefit and benefit of others.

51. The underlying tort was conversion of Plaintiff’s money, as alleged in Claim I (which Claim is hereby incorporated, including paragraphs 41 through 48).

52. Each individual defendant had his own role in the conspiracy and performed overt acts in furtherance thereof:

a. Krantz established and managed Nexus to have an entity to enter into “Escrow Agreements” with the Suppliers and to facilitate Plaintiff’s Release Agreements with German Law Center;

b. German established and managed German Law Center and its IOLTA account, in which Plaintiff deposited the converted monies. In addition, German controlled the IOLTA account and unlawfully disbursed Plaintiff’s money from that account for his benefit, and for the benefit of the other Defendants herein.

53. Plaintiff has suffered significant damages in the loss of its money, as set forth herein, through the conversion of its money.

WHEREFORE, Plaintiff demands judgment against German and Krantz, jointly and severally, for actual damages in an amount to be determined by the trier of fact, costs of the lawsuit, pre- and post-judgment interest, and such other relief as the trier of fact deems just and proper.

CLAIM III BREACH OF CONTRACT

54. Plaintiff re-alleges and adopts all of the allegations set forth in paragraphs 1 through 40 above.

55. Plaintiff entered into an oral contract, evidenced by the Releases attached as Exhibits 7-9, for Nexus to process the funds for the benefit of the suppliers. Alternatively, Plaintiff was a third party beneficiary of the Escrow/Trust Agreement entered into between Nexus and the suppliers, an example of which is attached as Exhibit 4.

56. Under the contractual terms, Nexus, through the German Law Center IOLTA account, was required to disburse $70,687.50, $51,187.50, and $36,952.50, which Plaintiff had previously deposited into German Law Center’s IOLTA account, to Plaintiff’s Suppliers.

57. Nexus breached the terms of the agreement to disburse the funds by diverting the funds for its own benefit, and for the benefit of the other Defendants in this lawsuit.

58. Nexus’ conduct constitutes gross negligence or willful misconduct, as set forth herein, because it diverted the funds for the benefit of Defendants rather than disburse Plaintiff’s funds to the respective Suppliers as instructed.

59. Plaintiff has suffered damages as a consequence of Nexus’ material breaches of the contract.

WHEREFORE, Plaintiff prays that this Court enter judgment in its favor and against Nexus for actual damages in an amount to be determined by the trier of fact, costs of the lawsuit, pre- and post- judgment interest, and such other relief as the trier of fact deems just and appropriate.

CLAIM IV

BREACH OF FIDUCIARY DUTY AGAINST GERMAN, GERMAN LAW CENTER, AND NEXUS

60. Plaintiff re-alleges and adopts all of the allegations set forth in paragraphs 1 through 40 above.

61. German Law Center, as account holder for the IOLTA account in which Plaintiff deposited its monies in exchange for payment, was the effective trustee of Plaintiff’s funds and owed a fiduciary duty to Plaintiff.

62. German, as sole member of German Law Center, being a member of the Florida Bar and benefiting from that designation, and otherwise holding himself out as having control over German Law Center’s IOLTA account, was the effective trustee of Plaintiff’s funds and owed a fiduciary duty to Plaintiff.

63. Nexus, as the agent facilitating the transfer through the German Law Center’s IOLTA account to the suppliers of Plaintiff, owed a fiduciary duty to Plaintiff to execute the transfer according to the consent and direction of Plaintiff.

64. Indeed, German, German Law Center, and Nexus, as trustees of the funds transferred by Plaintiff with the obligation to act primarily for the benefit of Plaintiff and the suppliers, were given the trust and special confidence of Plaintiff to execute the funding instructions to the suppliers as agreed.

65. German, German Law Center, and Nexus breached their fiduciary duties by failing to disburse Plaintiff’s money consistent with its instructions and/or failing to return those funds to Plaintiff, resulting in a complete loss of all monies Plaintiff deposited in German’s and German Law Center’s IOLTA account.

66. As a result, Plaintiff has suffered financial damages in the form of the loss of all the funds deposited in German’s and German Law Center’s IOLTA account.

67. German, German Law Center, and Nexus had actual knowledge that failing to disburse Plaintiff’s money in accordance with Plaintiff’s instructions was wrong and that failure to do so would result in Plaintiff losing these funds.

68. Despite that knowledge, German, German Law Center, and Nexus intentionally pursued that course of conduct, which indeed resulted in Plaintiff’s total loss of the funds it deposited in German Law Center’s IOLTA account.

WHEREFORE, Plaintiff prays that this Court enter a judgment in its favor against German, German Law Center and Nexus for actual and punitive damages in an amount to be determined by the trier of fact, costs of the lawsuit, pre- and post-judgment interest, and such other relief as the Court deems just and appropriate.

CLAIM V

FRAUD IN THE INDUCEMENT

69. Plaintiff re-alleges and adopts all of the allegations set forth in paragraphs 1 through 40 above.

70. This action is against all defendants except German.

71. Nexus, directly and through its agent, Krantz, intentionally made false statements or omitted material facts regarding its role as escrow/transfer agent on Plaintiff’s contracts with the Suppliers, as set forth herein.

72. German Law Center, directly and through its agent, Camargo, intentionally made false statements or omitted material facts regarding its intention to hold Plaintiff’s funds in its IOLTA account and disburse Plaintiff’s funds according to Plaintiff’s instructions, as set forth herein.

73. Defendants Nexus and German Law Center, and their representatives, knew that the representations were false and intended for Plaintiff to rely on those false representations in wiring its money to German Law Center’s IOLTA account to enrich themselves.

74. Plaintiff reasonably relied on those false representations to its detriment.

Specifically, the representations and omissions caused Plaintiff to wire $178,400 to German Law Center’s IOLTA account as set forth herein, and to delay seeking enforcement of its rights while it was being led on by the ongoing fraud.

75. As a result of the false statements, material omissions, and fraudulent conduct by Defendants, Plaintiff suffered financial damages in the form of loss of the monies deposited in German Law Center’s IOLTA account.

WHEREFORE, Plaintiff prays that this Court enter judgment in its favor against all Defendants except German, awarding compensatory and punitive damages, costs of the lawsuit, and such other relief as the Court deems just and appropriate.

CLAIM VI

NEGLIGENT MISREPRESENTATION

76. Plaintiff re-alleges and adopts all of the allegations set forth in paragraphs 1 through 40 above.

77. This action is against all defendants except German.

78. Nexus, directly and through its agent, Krantz, intentionally made false statements or omitted material facts regarding its role as escrow/transfer agent on Plaintiff’s contracts with the Suppliers, as set forth herein.

79. German Law Center, directly and through its agent, Camargo, intentionally made false statements or omitted material facts regarding its intention to hold Plaintiff’s funds in its IOLTA account and disburse Plaintiff’s funds according to Plaintiff’s instructions, as set forth herein.

80. Defendants, except German, should have known that the statements made to Plaintiff were false, and would lead to Plaintiff’s reliance thereon.

81. Defendants, except German, intended for Plaintiff to rely on the false representations that, among other things, Plaintiff’s money that it deposited in German Law Center’s IOLTA account would be disbursed to the Suppliers consistent Plaintiff’s instructions.

82. Plaintiff reasonably and justifiably relied on the false statements to Plaintiff’s detriment, including, but not limited to, wiring $178,400 to German Law Center’s IOLTA account and delaying enforcement of its rights based on the false statements.

83. Defendants’ conduct, except German, constituted gross negligence as their conduct was so reckless or wanting in care, as set forth herein, that it constituted a conscious disregard for the rights of Plaintiff. Among other things, Defendants knew they intended to misappropriate Plaintiff’s money once it was deposited into German Law Center’s IOLTA account.

84. As a direct and proximate result of this conduct, Plaintiff suffered financial damages in the form of loss of the funds wired to German Law Center’s IOLTA account.
WHEREFORE, Plaintiff prays that this Court enter judgment in its favor against Defendants except German, awarding compensatory and punitive damages in an amount to be determined at trial, costs of the lawsuit, and such other relief as the Court deems just and appropriate.

CLAIM VII

UNJUST ENRICHMENT AGAINST ALL DEFENDANTS

85. Plaintiff re-alleges and adopts all of the allegations set forth in paragraphs 1 through 40 above.

86. Plaintiff conferred a benefit on all Defendants by transferring Plaintiff’s money to German Law Center’s IOLTA account, which was used to benefit all Defendants by retaining all of the funds for themselves or used for their benefits.

87. Defendants voluntarily accepted and retained the benefits conferred.

88. Defendants’ acceptance and retention of the benefits under these circumstances (of theft and/or conversion, as set forth in Count I, which is incorporated herein) makes it inequitable for Defendants to retain such benefits without returning the amount wired into German Law Center’s IOLTA account to Plaintiff.

89. Defendants have been unjustly enriched by Plaintiff’s transfer of money to German Law Center’s IOLTA account, that was kept by, and used for, Defendants’ benefit.

WHEREFORE, Plaintiff prays that this Court enter judgment in favor against all Defendants for actual damages in an amount to be determined by the trier of fact, costs of the lawsuit, pre-and post-judgment interest, and such other relief as the Court deems just and appropriate.

Respectfully submitted this 16th day of March, 2021.

WEINBERG WHEELER HUDGINS GUNN & DIAL, LLC

/s/Aaron M. Cohn
Aaron M. Cohn, Esq.
Florida Bar No.: 95552
Weinberg Wheeler Hudgins Gunn & Dial, LLC
3350 Virginia Street, Ste. 500
Miami, FL 33133
T: (305) 455-9500
F: (305) 455-9501
E-mail: acohn@wwhgd.com
malvarez@wwhgd.com
dmallqui@wwhgd.com
Counsel for Plaintiff

SILVER LAW GROUP

/s/ Scott L. Silver
Scott L. Silver
Fla. Bar No. 095631 Ryan Schwamm
Fla. Bar No. 1019116
11780 W. Sample Road Coral Springs,
Florida 33065
T: (954) 755-4799
F: (954) 755-4684
E-mail: ssilver@silverlaw.com
rshwamm@silverlaw.com
rfeinberg@silverlaw.com
Counsel for Plaintiff

The $200k Theft Case

Recycled Paper International, LLC v. JPMorgan Chase Bank, N.A. (9:20-cv-81888) District Court, S.D. Florida

REMANDED TO FLORIDA STATE COURT, DEC 2020

ORDER GRANTING MOTION TO REMAND

THIS CAUSE is before the Court on Plaintiff’s Motion to Remand [DE 20] (“Motion”). The Court has considered the Motion, Defendant JP Morgan Chase Bank

N.A.’s (“Chase”) Response [DE 27], Plaintiff’s Reply [DE 35], and the record in this case and is otherwise advised in the premises.

I.            BACKGROUND

The facts of this case are not in dispute. On or about June 12, 2020, Canacha, Inc. (“Canacha”), who is not a party to this action, attempted to transfer $202,221.96 to Plaintiff’s Chase bank account. But a hacker accessed Plaintiff’s email containing the account details and manipulated it to instruct Canacha to transfer the funds to Huatai USA, LLC, at a Chase account number that is not owned by either Plaintiff or Huatai USA, LLC. Canacha followed the instructions in the hacked email, and Chase processed the transaction on June 15, 2020. Plaintiff has yet to recover any of the fraudulently transferred funds.

Plaintiff initiated this action in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, on September 4, 2020, naming Chase as the sole defendant and asserting a single claim of a violation of Florida Statute § 670.207.1 Chase timely removed the action to federal court on October 9, 2020, under diversity jurisdiction.

Plaintiff filed its First Amended Complaint on October 22, 2020, this time also asserting claims of civil theft, conversion, and negligence against Mario D. German Law Center, P.A. (“German”), a Florida professional corporation and the alleged recipient of the transferred funds.

On the same day, Plaintiff moved to remand the case to state court, arguing that the joinder of German destroyed diversity.

I.            LEGAL STANDARD

 

Provided the requirements of original jurisdiction are satisfied, a defendant may remove a case from state court to federal court. 28 U.S.C. § 1441(a). The case must be remanded back to state court, however, “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction.” Id. § 1447(c). Rule

15(a) of the Federal Rules of Civil Procedure allows plaintiffs to amend a complaint once as a matter of right as long as no answer has been filed, and in all other circumstances with leave of court. Fed. R. Civ. Proc. 15(a)(1). The Rule specifies that leave to amend should be freely given “when justice so requires.” Fed. R. Civ. Proc.

15(a)(2). However, “a district court must scrutinize more closely an amended pleading that would name a new nondiverse defendant in a removed case because justice requires that the district court also balance the defendant’s interests in maintaining the federal forum.”  Dever v. Family Dollar Stores of Georgia, LLC, 755 F. App’x 866, 868 (11th Circuit 2018).

1 Florida Statute § 670.207 is a portion of the Uniform Commercial Code governing the description of beneficiaries in funds transfers.

In determining whether to permit a plaintiff to join a nondiverse defendant after removal, a district court should consider the following factors:

(1) the extent to which the purpose of the amendment is to defeat federal jurisdiction,

(2) whether the plaintiff has been dilatory in asking for amendment,

(3) whether the plaintiff will be significantly injured if amendment is not allowed, and

(4) any other factors bearing on the equities. Id.

I.             DISCUSSION

Plaintiff asserts that this balancing of equities weighs in its favor and the action should be remanded to state court.

Chase takes the opposite position, arguing that the Court should deny German’s joinder and retain jurisdiction over this action.

Applying the Dever factors, the Court finds that the joinder should be permitted and the case should be remanded to state court.

First, the Court finds that Plaintiff did not amend the Complaint for the purpose of destroying diversity. The undisputed facts show that Plaintiff was pursuing its civil theft claim against German even before it filed suit against Chase. Any party asserting a civil theft claim under Florida law is required by statute to send a written demand to the opposing party and then wait 30 days before filing suit. Fla Stat. § 772.11. Accordingly, Plaintiff delivered a demand letter to German on September 2, 2020, two days before it initiated this action against Chase. And while it is true that Plaintiff might have either waited for the expiration of the cure period before initiating this action or asserted its other two claims against German in the initial Complaint, the fact that Plaintiff did not do either of those things does not show that the joinder of German now is a mere ploy to destroy diversity. In fact, Plaintiff asserts, and Chase does not refute, that Plaintiff informed Chase of its intention to join German before Chase removed the matter.

The Court therefore concludes that the first factor weighs in favor of remand.

The Court also finds that Plaintiff has not been dilatory in amending the Complaint. Plaintiff sent the demand letter to German on September 2, 2020, and the cure period ended on October 3, 2020. Plaintiff moved to amend the Complaint on October 12, 2020, and filed the First Amended Complaint on October 22, 2020.2 Only one week elapsed after the cure period ended before Plaintiff sought leave to amend the Complaint, and only two additional weeks elapsed before Plaintiff filed the First Amended Complaint. These are not unreasonable delays. The second factor therefore also weighs in favor of remand.

Next, the Court finds that Plaintiff would be prejudiced if the case were not remanded. Plaintiff has already taken steps to recover damages from German, so this is not one of those cases where it seems unlikely that a plaintiff would seriously pursue its claims against a nondiverse defendant.

And given that Plaintiff may potentially recover treble damages against German, but not against Chase, this is also not a case where a plaintiff can be fully satisfied by the diverse defendant alone.

To require Plaintiff to maintain two separate actions in two separate courts would not only put additional strain upon Plaintiff’s resources, but it would undermine the exercise of judicial economy.

The third factor therefore also weighs in favor of remand.

2 Plaintiff withdrew its Motion for Leave to Amend Complaint, see DE 19, and, since Chase had not yet answered the initial Complaint, subsequently filed the First Amended Complaint pursuant to Rule 15(a)(1).

Finally, the Court finds that other factors bearing on the equities also support granting Plaintiff’s Motion. First, the case is still in the early stages of litigation, so remanding it would cause no unreasonable delay.

And second, Plaintiff stated in its Reply that it intends to assert a civil theft claim against an additional defendant: a Florida resident who is allegedly responsible for the hacked email and whose identity Plaintiff has just learned.3

And although Chase argues that the pendency of its yet-unripe Motion to Dismiss supports denying the Motion, the Court disagrees.

In the first instance, Chase’s argument relies upon accepting that the Motion to Dismiss is likely to succeed, and it would be inappropriate for the Court to prematurely evaluate the merits of the Motion to Dismiss. But also, Plaintiff has stated its intention of asserting an additional negligence claim against Chase based on newly-discovered information. The pendency of the Motion to Dismiss is therefore irrelevant to this proceeding.

The Court concludes that the Dever factors weigh strongly in favor of remanding this case to state court.

I.            CONCLUSION 

It is thereupon ORDERED AND ADJUDGED as follows:

  1. Plaintiff’s Motion to Remand [DE 20] is GRANTED.
  2. The case is hereby REMANDED to the Fifteenth Judicial Circuit in and for Palm Beach County.
  3. The Clerk of Court is hereby directed to forward a certified copy of this Order to the Clerk of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, re Case 50-2020-CA-009558-AF.
  4. The Clerk of Court is directed to CLOSE the case and DENY all other pending motions as MOOT.

DONE AND ORDERED in Chambers at Fort Lauderdale, Florida, on this 16th day of December, 2020.

James I Cohn
United States District Judge

Copy Provided:

Magistrate Judge William Matthewman
all counsel of record

3 Plaintiff has already presented a written demand to this individual and is waiting for the cure period to expire.

The Mortgage Fraud Case

Federal Deposit Insurance Corporation v. Mario D. German Law Center, P.A. (9:12-cv-81298) District Court, S.D. Florida

SETTLED 2 JUNE 2014 – DESPITE CLEAR MORTGAGE FRAUD BY LAWYER AS PER MARRA’s OWN ORDER

1914 Alamanda Way, Riviera Beach, FL 33404 - Sold for 220k

Sold for $88k (2014)

OPINION AND ORDER

This cause is before the Court upon Defendant Mario D. German Law Center, P.A.’s Motion to Sever Plaintiff’s Claims (DE 28). The Motion is fully briefed and ripe for review. The Court has carefully considered the Motion and is otherwise fully advised in the premises.

I. Background

On December 3, 2012, Plaintiff Federal Deposit Insurance Corporation (“FDIC”) brought this three count complaint against Defendant Mario D. German Law Center, P.A. (“Defendant”) for breach of contract (count one), breach of fiduciary duty (count two) and negligent misrepresentation (count three). The Complaint alleges the following:

AmTrust Bank (“AmTrust”) was a federally chartered savings bank with its principal place of business in Cleveland, Ohio. (Compl. ¶ 1, DE 1.)

On December 4, 2009, AmTrust was closed by the Office of Thrift Supervision and the FDIC was appointed Receiver.

(Compl. ¶ 2.)

LIT: FRAUD 1 – PROPERTY LOAN $220K for PROPERTY SOLD FOR $88K IN 2014

On or about February 10, 2009, AmTrust funded a purchase money loan in the sum of $220,000 to borrower Olivia Rudolfo (“Rudolfo”) for the purchase of property located at 1914 Alamanda Way, Riviera Beach, Florida. (Compl. ¶ 7.) Rudolfo purchased the property from Sonoma Bay, Inc. for $275,000, financed in part by the Rudolfo loan. (Compl. ¶ 8.) AmTrust required Rudolfo to pay no less than $55,928 as a cash-to-close down payment. (Compl. ¶ 9.)

Rudolfo defaulted on the loan without making a single payment.

(Compl. ¶ 10.)

Defendant was the closing agent on this loan and agreed to abide by AmTrust’s closing instructions. (Compl. ¶ 11.) Defendant certified that it closed the loan in compliance with all the conditions in those instructions. (Compl. ¶ 13.) Despite explicit instructions, Defendant closed the Rudolfo loan and disbursed funds in a matter inconsistent with the HUD-1 Settlement Statement. (Compl. ¶ 18.)

Defendant disbursed $115,500 in proceeds obtained from AmTrust loan proceeds to TLC Marketing Directors, Inc.* (“TLC”), even though the purchase contract for the transaction does not list any disbursements to TLC, TLC does not hold any lien against the property, and the disbursement is not standard in mortgage lending transactions. (Compl. ¶ 20.)

*LIT could only locate a 2008 entity named TLC Marketing Directors Incorporated, ownership by Keith Davis and Maria Davis of Jacksonville, Fl.

Defendant did not contact AmTrust to inform it of the disbursement to TLC prior to closing the Transaction, and instead closed the transaction without authorization from AmTrust to make this disbursement. (Compl. ¶ 21.)

Upon information and belief, Defendant did not collect $55,928 from Rudolfo; instead, TLC paid Rudolfo’s required cash-to-close down payment. (Compl. ¶ 22.)

Defendant did not contact AmTrust to inform it that Rudolfo did not pay his down payment. (Compl. ¶ 23.)

Thus, the true purchase price for the Rudolfo property was only $219,072 which caused AmTrust to fund a loan in excess of the true purchase price of the Rudolfo property. (Compl. ¶ 25.)

Had AmTrust known the true facts, AmTrust would not have funded the loan.

(Compl. ¶ 26.)

LIT: FRAUD 2 – PROPERTY LOAN $228,750 for PROPERTY LAST SOLD FOR $52,500 in 2011

On or about April 7, 2009, AmTrust funded a purchase money mortgage loan in the sum of $228,750 to Luis Jimenez for the purchase of property located at 1925 Alamanda Way, West Palm Beach, Florida 33404. (Compl. ¶ 27.)

Jimenez purchased the property from Sonoma for $305,000, financed in part by the Jimenez loan. (Compl. ¶ 28.)

AmTrust required Jimenez to pay no less than $81,436 as a cash-to-close down payment. (Compl. ¶ 29.)

Jimenez defaulted on the loan without making a single payment.

(Compl. ¶ 30.)

1925 Alamanda Way, Riviera Beach, FL 33404 - Last Sold for $52,500, May 2, 2011 (Redfin)

Defendant agreed to serve as closing agent in connection with this loan and agreed to abide by AmTrust’s closing instructions. (Compl. ¶ ¶ 31; 33.) Defendant closed the loan and disbursed funds in a manner inconsistent with the HUD-1 Settlement Statement. (Compl. ¶ 38.)

Defendant disbursed $144,265 in proceeds obtained from AmTrust’s loan proceeds to TLC, despite the fact that, upon information and belief, the purchase contract for the transaction did not list any disbursements to TLC, TLC did not hold any lien against the property and this disbursement was not standard in mortgage lending transactions. (Compl. ¶ 40.)

Defendant did not contact AmTrust to inform it of the disbursement to TLC prior to closing the transaction and instead closed the transaction without authorization from AmTrust to make the disbursement. (Compl. ¶ 41.)

Upon information and belief, Defendant did not collect $81,436 from Jimenez; instead, TLC paid the cash-to-close down payment. (Compl. ¶ 42.)

Defendant did not contact AmTrust to inform it that Jimenez did not pay his down payment. (Compl. ¶ 43.)

After accounting for Jimenez’ failure to pay his down payment, the true purchase price for the property was only $223,564. (Compl. ¶ 44.)

Defendant’s action caused AmTrust to fund a loan in excess of the true purchase price of the property. (Compl. ¶ 45.)

Had AmTrust known the true facts, AmTrust would not have funded the loan.

(Compl. ¶ 46.)

LIT: FRAUD 3 – PROPERTY LOAN $108K for PROPERTY SOLD FOR $82.5K IN 2014

On or about March 2, 2009, AmTrust funded a purchase money mortgage loan in the sum of $108,000 to borrower Jose Silva for the purchase of property located at 1926 Hibiscus Lane, Riviera Beach, Florida, 33404. (Compl. ¶ 47.)

Silva purchased the property from Sonoma for $240,000, financed in part by the loan. (Compl. ¶ 48.)

AmTrust required Silva to pay no less than $66,430 as a cash-to-close down payment. (Compl. ¶ 49.)

Silva defaulted on the loan after making only one payment.

(Compl. ¶ 50.)

Defendant agreed to serve as the closing agent in connection with the closing of the loan and agreed to abide by AmTrust’s closing instructions. (Compl. ¶ 51.) Despite the instructions, Defendant closed the loan and disbursed funds in a manner inconsistent with the HUD-1 Settlement Statement. (Compl. ¶ 58.)

Silva was to contribute $66,430 towards the purchase of the property. (Compl. ¶ 59.)

Defendant distributed $103,200 in proceeds obtained from AmTrust’s loan proceeds to TLC despite the fact that, upon information and belief, the purchase contract for the transaction did not list any disbursements to TLC, TLC did not hold any lien against the property and this disbursement was not standard in mortgage lending agreements. (Compl. ¶ 60.)

Defendant did not contact AmTrust to inform it of the disbursement to TLC prior to closing the transaction and instead closed the transaction without authorization from AmTrust to make the disbursement. (Compl. ¶ 61.)

Upon information and belief, Defendant did not collect $66,430; instead, TLC paid the required cash-to-close down payment. (Compl. ¶ 62.)

After accounting for Silva’s failure to pay his down payment, the true purchase price was only $173,570. (Compl. ¶ 64.)

Defendant’s actions caused AmTrust to fund a loan in excess of the true purchase price of the property and had AmTrust know the true facts, AmTrust would not have funded the loan.

(Compl. ¶ ¶ 65-66.)

1926 Hibiscus Ln, Riviera Beach, FL 33404

Sold for $82,500 (2014)

Defendant moves to sever Plaintiff’s claims, stating that these are three separate and distinct unrelated real estate transactions, with different agreements, documents, prices, transfers of money and damages.

Defendant states that it is not enough that the claims share the same closing agent for mortgage loans issued by the same lender.

In response, Plaintiff notes that the Complaint alleges similar conduct by Defendant, violation of the same contract language and involvement of the same third party, TLC.

II. Discussion

Defendant moves for severance pursuant to Rule 21 of the Federal Rules of Civil Procedure.

The Rule states, in part, “[t]he court may [ ] sever any claim against a party.” Fed. R. Civ. P. 21. “Among the factors to be considered by the court in exercising its discretion under Rule 21 are whether the claims arise from the same transaction or occurrence, whether they present some common question of law or fact, whether severance would facilitate settlement or
judicial economy, and the relative prejudice to each side if the claim is severed.” Hartley v. Clark, No. 3:09cv559/RV/EMT, 2010 WL 1187880, at * 4 (N.D. Fla. Feb. 12, 2010)

(citing Disparte v. Corporate Executive Bd., 223 F.R.D. 7, 12 (D.D.C. 2004) (severance of plaintiffs’ claims turns on considerations of whether claims arise from same transaction or occurrence, whether claims present some common question of law or fact, whether settlement of claims or judicial economy would be facilitated, whether prejudice would be avoided if severance were granted, and whether different witnesses and documentary proof are required for the separate claims);

In re High Fructose Corn Syrup Antitrust Litigation, 293 F. Supp. 2d 854, 862 (C.D.Ill.2003) (same);

Wausau Business Ins. Co. v. Turner Const. Co., 204 F.R.D. 248, 250(S.D.N.Y.2001) (same)).

Rule 42 of the Federal Rule of Civil Procedure provides: “For convenience, to avoid prejudice, or to expedite or economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.” Fed. R. Civ. P. 42(b).

At this stage in the proceedings, the Court concludes that the motion to sever should be denied. With respect to discovery and mediation, there is no basis to sever the case.

Based on the allegations, the claims substantially involve the same pattern of conduct, the same legal issues and the same witnesses.

Any differences highlighted by Defendant will not impact discovery or mediation enough to require severance.

With respect to Defendant’s concern that it will be limited in the scope and quantity of interrogatories (Mot. at 4), Defendant may move the Court for permission to craft discovery in an appropriate manner for this case.

Equally unpersuasive is Defendant’s contention that “due to the overlapping allegations asserted in the Plaintiff’s three causes of action, [Defendant] is prejudiced from identifying the documents, communications and witnesses specifically attributed to each transaction, and to prepare a proper defense to each claim.” (Mot. at 5.)

To the extent Defendant feels the Complaint did not provide him an adequate basis to respond to it, the proper course of action was
to file a motion for a more definite statement. See Fed. R. Civ. P. 12(e); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (“If a pleading ‘fails to specify the allegations in a manner that provides sufficient notice’ or does not contain enough information to allow a responsive pleading to be framed, the proper motion to be filed is a motion for a more definite statement.”).

Finally, the Court will deny without prejudice the application to sever the trial. Once the case has been better developed, the Court can determine whether convenience, avoidance of prejudice, or judicial economy requires severance of the trial.

IV. Conclusion

Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant Mario D. German Law Center, P.A.’s Motion to Sever Plaintiff’s Claims (DE 28) is DENIED.

DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 5th day of September, 2013.

KENNETH A. MARRA
United States District Judge

JOINT STIPULATION OF DISMISSAL WITH PREJUDICE

Plaintiff FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR AMTRUST BANK (“Plaintiff” or the “FDIC-R”), and Defendant, MARIO D. GERMAN LAW CENTER, P.A., (collectively “Parties”), by and through their undersigned counsel, hereby notify the Court that the parties have entered into a settlement agreement and stipulate and agree as follows, in accordance with that agreement:

  1. This action shall be dismissed with prejudice with each party to shall bear its own attorney’s fees and costs in this lawsuit.
  2. The Parties request the Court enter such order(s) as it may be necessary to effectuate the dismissal in accordance with the terms agreed to by the Parties.

WHEREFORE, the Parties respectfully request the Court enter an Order of Dismissal, dismissing this case with prejudice and further relief this Court deems just and proper.

Dated: June 2, 2014

Case No: 12-81298-CIV-MARRA/BRANSON

Respectfully submitted,

 s/ Kenneth Pollock, Esq

Kenneth Pollock, Esq.
Florida Bar. No. 69558

Gary R. Shendell, Esq.
Florida Bar No. 0964440

SHENDELL & POLLOCK, P.L.
Fountain Square
2700 N. Military Trail, Suite 150
Boca Raton, Florida 33487
Phone: (561) 241-2323
Fax: (561) 241-2330

dustin@shendellpollock.com
lisa@shendellpollock.com
grs@shendellpollock.com
Counsel for Defendant, Mario D. German Law

 s/ George Breur

Robert A. Hingston, Esq.
Florida Bar No. 181815

Michael Jay Rune, II, Esq.
Florida Bar No. 0086355

George Breur, Esq.
Florida Bar No. 33283

Welbaum Guernsey
901 Ponce De Leon Blvd., PH Suite Coral Gables, Florida 33134
Telephone: (305) 441-8900
Fax: (305)441-2255

bhingston@welbaum.com
mrune@welbaum.com
hjonczak@welbaum.com

Counsel for Plaintiff FDIC

ORDER GRANTING JOINT STIPULATION OF DISMISSAL WITH PREJUDICE

THIS CAUSE came on before the Court upon the Joint Stipulation of Dismissal With Prejudice, filed by Plaintiff FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR AMTRUST BANK (“Plaintiff” or the “FDIC-R”), and Defendant, MARIO GERMAN LAW CENTER, P.A., (collectively “Parties”). After having reviewed the Stipulation, and being otherwise fully advised in the matter, it is hereby

ORDERED AND ADJUDGED:

  1. This case is hereby dismissed with prejudice.
  2. Each party to bear its own fees and costs.

ENTERED this           day of, June, 2014

UNITED STATES DISTRICT JUDGE

cc:       Counsel of Record

U.S. District Court
Southern District of Florida (West Palm Beach)
CIVIL DOCKET FOR CASE #: 9:12-cv-81298-KAM

Federal Deposit Insurance Corporation v. Mario D. German Law Center, P.A.
Assigned to: Judge Kenneth A. Marra
Referred to: Magistrate Judge William Matthewman
Cause: 12:1819 Default of Promissory Note
Date Filed: 12/03/2012
Date Terminated: 06/04/2014
Jury Demand: Defendant
Nature of Suit: 190 Contract: Other
Jurisdiction: U.S. Government Plaintiff
Plaintiff
Federal Deposit Insurance Corporation
as Receiver for Amtrust Bank
represented by Heather Marie Jonczak
Carlton Fields Jorder Burt
100 SE 2nd Street
Suite 4200
Miami, FL 33131
(305) 530-0050
Fax: (305) 530-0055
Email: hjonczak@cfjblaw.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDMelissa Jill Gomberg
Welbaum Guernsey
901 Ponce de Leon Blvd. Penthouse Suite
Coral Gables, FL 33134
(305) 441-8900
Email: mgomberg@welbaum.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDRobert Allen Hingston
Welbaum, Guernsey, et. al.
7740 S.W. 104 Street
Suite #204
Pinecrest, FL 33156
305-441-8900
Fax: 305-441-2255
Email: rhingston@welbaum.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDLindsey Fallon Thurswell Lehr
Welbaum Guernsey Hingston Et Al
Penthouse Suite
901 Ponce De Leon Blvd., Floor 10
Coral Gables, FL 33134
(305) 441-8900
Fax: (305) 441-8900
Email: Lthurswell@welbaum.com
ATTORNEY TO BE NOTICEDMichael Jay Rune , II.
Carlton Fields PA
4200
100 SE 2nd Street
Miami, FL 33131
305-530-0050
Fax: 305-530-0055
Email: mrune@carltonfields.com
ATTORNEY TO BE NOTICED
V.
Defendant
Mario D. German Law Center, P.A.
a Florida Corporation
represented by Dustin Craig Blumenthal
Goldberg Segalla
222 Lakeview Drive
Suite 800
West Palm Beach, FL 33401
561-618-4450
Fax: 561-618-4485
Email: dblumenthal@goldbergsegalla.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDGary Robert Shendell
Shendell & Pollock PL
One Park Place Suite 310
621 NW 53rd Street
Boca Raton, FL 33487
561-241-2323
Fax: 561-241-2330
Email: gary@shendellpollock.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

 

Date Filed # Docket Text
09/06/2013 32 OPINION AND ORDER, denying 28 Motion to Sever. Signed by Judge Kenneth A. Marra on 9/5/2013. (cqs) (Entered: 09/06/2013)
09/06/2013 33 Unopposed MOTION for Extension of Time to Disclose Expert Testimony by September 27, 2013 re 31 Defendant’s MOTION for Extension of Time to Disclose Expert Report re 18 Scheduling Order, Order Referring Case to Magistrate Judge, Order Referring Case to Mediation,,,,,, 15 SCHEDULING REPORT – Rule 26(f)/16.1 by Mario D. German Law Center, P.A.. Responses due by 9/23/2013 (Blumenthal, Dustin) (Entered: 09/06/2013)
09/10/2013 34 ENDORSED ORDER granting 33 Motion for Extension of Time to disclose expert testimony. Expert Discovery due by 9/27/2013. Signed by Judge Kenneth A. Marra on 9/10/2013. (ir) (Entered: 09/10/2013)
09/26/2013 35 Second MOTION for Extension of Time to Disclose Expert Testimony by Mario D. German Law Center, P.A.. Responses due by 10/15/2013 (Blumenthal, Dustin) (Entered: 09/26/2013)
10/01/2013 36 AMENDED Unopposed Second MOTION for Extension of Time To Disclose Additional Expert Testimony by Mario D. German Law Center, P.A.. Responses due by 10/18/2013 (Blumenthal, Dustin)Text Modified on 10/1/2013 (cqs). (Entered: 10/01/2013)
10/02/2013 37 ORDER granting 36 Motion for Extension of Time to disclose expert testimony. Signed by Judge Kenneth A. Marra on 10/2/2013. (ir) (Entered: 10/02/2013)
10/27/2013 38 Joint MOTION for Extension of Time Extend Discovery Cut Off and Pretrial Deadlines re 18 Scheduling Order, Order Referring Case to Judge, Order Referring Case to Mediation,,,,,, by Mario D. German Law Center, P.A.. Attorney Gary Robert Shendell added to party Mario D. German Law Center, P.A.(pty:dft). Responses due by 11/15/2013 (Attachments: # 1 Text of Proposed Order)(Shendell, Gary) (Entered: 10/27/2013)
10/30/2013 39 ORDER granting 38 Motion to Extend Discovery. Discovery due by 2/28/2014. Dispositive Motions due by 3/10/2014. Calendar Call set for 8/15/2014 10:00 AM in West Palm Beach Division before Judge Kenneth A. Marra. Jury Trial set for 8/18/2014 09:00 AM in West Palm Beach Division before Judge Kenneth A. Marra. Signed by Judge Kenneth A. Marra on 10/29/2013. (ir) (Entered: 10/30/2013)
06/02/2014 40 STIPULATION of Dismissal by Federal Deposit Insurance Corporation (Attachments: # 1 Text of Proposed Order)(Breur, George) (Entered: 06/02/2014)
06/04/2014 41 ORDER DISMISSING CASE with prejudice. All pending motions are denied as moot. This case is CLOSED. Signed by Judge Kenneth A. Marra on 6/3/2014. (ir) (Entered: 06/04/2014)

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Acceleration

Who is Presiding Judge Andrea Gundersen, Mortgage Foreclosure Division, Seventeenth Judicial Circuit?

Judge Gundersen presides over all foreclosures in Broward County. She has been referred to JQC, asking that she be removed from the bench.

Published

on

FL Honest Lending Report

REPUBLISHED BY LIT: JUL 5, 2021

After orchestrating one of the largest consumer frauds in American history, the banking industry continues the unethical and illegal servicing and foreclosure practices that were uncovered during the “robo-signing” scandal which eventually led to the $25b settlement with 49 State Attorneys General in 2012.

While some of the unethical practices regarding origination were curbed after the settlement, unethical servicing and fraudulent foreclosures continue to plague homeowners.

Floridians for Honest Lending (FHL) reviewed several hundred foreclosure complaints filed in 2019 by Bank of America, the Bank of New York Mellon, and JP Morgan Chase in the Eleventh and Seventeenth Judicial Circuit Courts that comprise Miami-Dade and Broward counties respectively. Upon that review, FHL found 369 foreclosure complaints were filed with rubber-stamped blank endorsements with signatures of David SpectorLaurie MederMichele Sjolander, and Cynthia Riley, whose names became synonymous with the robo-signing scandal. Of those, 325 were loans originated by Countrywide, the disgraced mortgage company that was bought by Bank of America in 2008.

In addition, FHL found that in Miami-Dade alone, 310 homes had been sold at auction since January 2019 that included these same rubber-stamped blank endorsements from these same rubber-stamped blank endorsements, 21 of which were sold during the COVID-19 pandemic.

The fraudulent rubber-stamped blank endorsements are used to establish standing and the banks’ right to foreclose on homeowners, the same homeowners that were sold predatory loans and pushed into foreclosure with unethical servicing practices.

This practice of filing false documents was documented by 60 Minutes in 2011 and was part of the complaint filed by the 49 State Attorneys General.

It was discovered after the $25b National Mortgage Settlement that Bank of America and JP Morgan Chase continued to submit forged documents, now relying on forgery and perjury, in foreclosures across the nation.

Unfortunately, the banks’ reckless greed left millions of properties with mortgages and promissory notes corrupted and the chain of title on those properties broken, putting trial court judges in an uncomfortable position of either taking the banking industry to task for these forged documents or kicking a family out of their home.

Unfortunately, with little scrutiny from the media, legislators, or regulators, our court system has heavily favored the latter.

In fact, FHL’s review found that in Broward county, 217 of the 219 foreclosure complaints filed in 2019 that included fraudulent rubber stamps were assigned to Judge Andrea Gundersen.

Of these cases assigned to Judge Gundersen, 126 of them have been closed, none of which were ruled in favor of the defendant.

Currently, Judge Gundersen presides over all foreclosures in Broward County.

She was reassigned from Family Court and does not have prior experience in foreclosure litigation.

Since her reassignment, defense attorneys have filed motions for judicial disqualification against Judge Gundersen for allowing attorneys for Bank of America to misrepresent the law and argue that “fraud on the court” is allowed in foreclosure because of a “litigation privilege” and ordering the defendant to pay the Bank’s attorney’s fees for challenging the fraud.

In April 2021, Judge Gundersen granted nineteen motions for disqualification in cases she presided over.

The clients have referred Judge Gundersen to the Judicial Qualifications Commission asking that she be removed from the bench.

These fraudulent foreclosures impact real people like Ana Rodriguez, an 82-year-old homeowner who was a former Cuban political prisoner, who now faces eviction because she was sold a predatory loan by Countrywide.

It impacts people like Mrs. Marie Williams-James who never missed a mortgage payment but Bank of America foreclosed on her anyway and Mr. and Mrs. Simpson who were working on a mortgage modification when the Judge refused the bank’s motion for continuance and forced the Simpsons into a fraudulent foreclosure judgment.

There is a new foreclosure crisis looming due to the economic effects of the COVID-19 pandemic. As we get the pandemic under control, the federal government will be under increased pressure from the banking industry to lift the FHFA moratorium for federally-backed mortgages from Fannie Mae and Freddie Mac.

That moratorium only protects borrowers who had strong enough credit scores to qualify for government-backed mortgages. The elderly, communities of color, and first-time homebuyers who took subprime mortgages are not protected by any moratorium and are still being evicted during the pandemic.

The issue of fraudulent foreclosures must be resolved before this new crisis begins. This is an issue that demands action at the local, state, and federal levels from legislators, regulators, and our judicial system.

We cannot continue to allow fraud in our justice system for the convenience of the banking industry and at the expense of homeowners’ American Dream.

Floridian for Honest Lending is a project of Opportunity For All Floridians, a 501c4 non-profit organization. We believe that our system will only work with transparency, honesty, and accountability. Our research can be found here.

Each complaint filed by the banks’ attorneys is linked in the second column. The forged rubber stamps can usually be found on the promissory notes that are included in the exhibits.

Below you can also find a sample of the varied David Spector signatures.

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Bankers

The Fl. Bar Complaint by Judge Hanzman Against Attorney Bruce Jacobs is Personal

Judge Michael Hanzman’s name is appearing frequently in sanctions orders and Florida bar complaints of late and LIF investigates.

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Judge Michael Hanzman’s name is appearing frequently maligning lawyers and judges in orders, sanctions and/or bar complaints of late. Upon review LIF notes a trend; apparent abuse of office and power for personal vendetta’s.

LIF will be highlighting his cases separately and updating this and other articles frequently to expand on this breaking news story.

Update: July 25, 2021

On July 12, 2021, The Florida Bar’s amended request for extension of time is granted and the referee is allowed to and including September 17, 2021, in which to file the required referee’s report. ALL OTHER TIMES ARE EXTENDED ACCORDINGLY.

NOV 3, 2020 | REPUBLISHED BY LIT: JUN 20, 2021

COMPLAINT

The Florida Bar, Complainant, files this Complaint against Bruce Jacobs, respondent, pursuant to the Rules Regulating The Florida Bar and alleges the following:

1. Respondent is, and at all times mentioned in the complaint was, a member of The Florida Bar, admitted on September 24, 1997, and is subject to the jurisdiction of the Supreme Court of Florida.

2. Prior to the filing of this Complaint, there has been a finding of probable cause by a grievance committee as required by Rule 3-7.4(l) Rules Regulating The Florida Bar. The presiding member of that committee has approved the instant Complaint.

COUNT I: AS TO THE FLORIDA BAR FILE NO. 2019-70,188(11H)

3. Respondent’s conduct came to the attention of The Florida Bar as a result of a referral by the Third District Court of Appeal for the State of Florida.

4. Respondent represented the defendant in a civil lawsuit in the case styled HSBC Bank et. al, v. Aquasol Condominium Association, Inc., Case No.:13-29724-CA-01.

5. After a final judgment of foreclosure was entered in favor of the bank, respondent filed an appeal to the Third District Court of Appeal.

6. One of the issues raised by respondent on appeal was that the bank lacked standing to foreclose against his client because the bank was not the holder and owner of the note.

Yet, that issue had been addressed and ruled on in the seminal case HSBC Bank, USA, NA v. Buset, 241 So.3d 882 (Fla. 3d DCA 2018), which held that in order to establish standing in a foreclosure action you must prove that you were either the holder or owner of the note.

7. Respondent did not cite to, acknowledge, or address, the controlling adverse decision in Buset in his briefs, even though respondent was counsel of record in both the trial court and on appeal and was, therefore, fully aware of Buset’s holding and its binding nature on the court.

8. Notwithstanding same, the Third District Court of Appeal affirmed the trial court’s decision, finding no merit in the arguments raised by the appellant.

9. Respondent then filed a motion for rehearing and rehearing en banc.

In his motion, respondent made disparaging and reckless comments regarding the judiciary. Excerpts of his comments are highlighted below:

  • “Most disturbing, the opinion sends the wolves after Aquasol’s counsel personally by commending the trial court’s ‘patience’ for not holding him in contempt of court. Truthfully, no court should dare make the front page of the paper for jailing an attorney for asking about a false document in evidence. This Court’s opinion intentionally emboldens judges to abuse their contempt ”

 

  • “This Court’s insistence on ignoring established Florida Supreme Court law to benefit bad corporate citizens is certain to cause ”

 

  • “Fla. Stat. § 673.3011 controls enforcement of negotiable instruments, not mortgages. Ownership controls the right to enforce the mortgage. This Court is acting illegally by instructing the law is ”

 

  • “I refuse to accept the idea that you cannot win when you are right. This is a biblical, spiritual journey for me. I have faith I will be protected because I am acting so clearly within the law and this Honorable Court is ”

 

  • “It’s become clear to me that the ‘powers that be’ support this fraudulent foreclosure system that took so long to put in place. If only the Courts enforced the 2001 amendments to Article 9 and forced Banks to bring their contracts to prove their purchase of the debt to prove standing. This foreclosure crisis was such an interesting phenomenon. Courts kept covering up for Banks that were intentionally doing it wrong.”

 

  • “Banks have all the resources to do it right but made business decisions to do it fraudulently. It’s as if they knew the Courts would always let them get away with it. Some out of fear as elected officials. Some out of indifference. Some out of belief that banks and bad corporate citizens got them to their position and they are on that team. The banks should always win. I call those judges traitors to the constitution.”

 

  • “These banks have so much and keep taking more. They don’t care if you are rich or poor, white or It is easy to win when the game is rigged.”

 

  • “In the decade that I’ve fought on the trenches of foreclosure court, I’ve been blessed to help so many clients save their homes. Yet, I’ve had to warn them this broken system is riddled with fraud and The judges decide the rule of law, and whether any rule of law exists. Maybe the rule of law only applies to the rest of us.”

 

·        “This Court is sworn to protect and defend the constitution of the United States of America, not the foreclosure fraud of Bank of America or HSBC.”

 

  • “Why would anyone sworn to protect and defend the constitution stay silent while domestic enemies destroy our democracy from within? Is this really the world Americans should live in where those in power do not do what is right?”

 

  • “I’m fighting the modern-day monopoly. I am calling all the patriots who swore the oath to protect and defend the Constitution to join me. Any court that protects the monopoly over the rule of law is a traitor to the constitution and should be tried for ”

 

  • “This Court should not ignore Florida Supreme Court precedent and the actual facts of the dispute to reach a pre-determined result of blow the dogwhistle for judges to attack Aquasol’s counsel with contempt and jail for doing his job.

10. Upon review of respondent’s motion, which included a review of his initial and reply briefs, on or about September 26, 2018, the court issued an Order to Show Cause within ten days as to why the court should not impose sanctions against respondent for filing a motion and briefs which violated both the Florida Rules of Appellate Procedure and The Rules Regulating The Florida Bar. (A copy of the Third District Court of Appeal’s order is attached as Exhibit “A”).

11. On or about December 5, 2018, the court entered its order imposing sanctions. (A copy of the Third District Court of Appeal’s order is attached as Exhibit “B”).

Specifically, the court found that respondent impugned the qualifications or integrity of the court without any objectively or reasonable basis for doing so. The court further found that respondent filed a motion that was frivolous or in bad faith and was subject to sanctions pursuant to Florida Rule of Appellate Procedure 9.410(a) which provides:

“After 10 days’ notice, on its own motion, the court may impose sanctions for any violation of these rules, or for the filing of any proceeding, motion, brief, or other document that is frivolous or in bad faith. Such sanctions may include reprimand, contempt, striking of briefs or pleadings, dismissal of proceedings, costs, attorneys’ fees, or other sanctions.”

12. Additionally, the court found that not only did respondent’s conduct violate the Rules Regulating the Florida Bar, but it also violated the elementary norms of civility and professionalism.

13. As such, the court imposed reasonable attorney’s fees against Respondent not to exceed $5,000.00 and referred this matter to The Florida Bar.

14. Based on the foregoing, Respondent is in violation of Rule 4-8.2(a)

Impugning Qualifications and Integrity of Judges or Other Officers.

(A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, public legal officer, juror or member of the venire, or candidate for election or appointment to judicial or legal office) of the Rules Regulating The Florida Bar.

COUNT II: AS TO THE FLORIDA BAR FILE NO. 2019-70,358(11H)

15. Respondent’s conduct came to the attention of The Florida Bar as a result of a referral by the Third District Court of Appeal for the State of Florida.

16. Respondent represented the defendant in a civil lawsuit in the case styled Bank of America, N.A., v. Ryan Atkin, Case No. 3D18-1840, Lower Tribunal No. 09-87096.

17. The plaintiffs filed a petition for writ of prohibition with regard to a denial of a motion to disqualify the trial judge.

18. On or about September 17, 2018, respondent filed a Response to the Writ and a Motion to Disqualify the Third District Court of Appeal from ruling in the Atkin matter.

19. In his response, respondent made disparaging and reckless comments regarding the judiciary. Excerpts of his comments are highlighted below:

• “In Simpson [sic], this Court violated the standard of review, ignored Florida Supreme Court precedent, and falsified the facts in contradiction to the record.”

• “The impartiality of this Court is objectively questioned and it cannot issue a ruling with integrity in this case.”

• A named circuit court judge acted with “blatant disregard for the rule of law and the client’s constitutional rights” in an unrelated case and was upheld by this Court.

• The same circuit court judge has “recently escalated her illegal conduct.”

• A different, unnamed circuit court judge changed a favorable ruling because opposing counsel “threw a fundraiser for the new judge who rotated into the division.”

20. Similarly, respondent made the following disparaging and reckless comments regarding the judges of the Third District Court of Appeal, as well as the justices of the Florida Supreme Court, in his jurisdictional brief to the United States Supreme Court which he attached as Appendix 1 to his Response to the Writ:

• “The opinion [of this Court] mispresented facts, ignored Florida Supreme Court law, and disregarded evidence showing fraud. The Florida Supreme Court declined jurisdiction to address this factually and intellectually dishonest result.”

• “The Third District Misrepresented the Amended Rule 1.540(b) Motion to reach a pre-determined result – foreclosure.”

• “… the Dishonesty of the Third DCA’s opinion.”

• “The Florida Supreme Court has repeatedly declined to protect the constitutional rights of foreclosure defendants.”

• “[I]n virtually every appeal where the trial judge ruled in favor of undersigned counsel’s client, including Simpson, the Third DCA reversed with intellectually and factually dishonest opinions.”

• This Court “attempt[ed] to cover up, protect, and ignore well- documented fraud on the court in foreclosures. All to ensure a pre- determined result – foreclosure.”

• “The Third DCA’s Opinion is pretextual and arbitrary.”

• “This Court is called on to act because the Florida Supreme Court has taken no action to prevent the Third DCA from improperly ignoring fraudulent conduct in foreclosures.”

• “It is objectively reasonable to fear the Third DCA acted to reach a predetermined outcome that favors banks over homeowners – foreclosure. If the Florida Supreme Court will not act, this Court must.”

• “Democracy will not fail if financial institutions are held to the rule of law. To the contrary, democracy falls if the public is allowed to believe Courts are biased in favor of bad corporate citizens and a fraudulent foreclosure process.”

21. Upon review of respondent’s pleadings, on or about December 14, 2018, the court issued an Order to Show Cause requiring respondent, within ten days, to address why the court should not impose sanctions against him for violations of both the Florida Rules of Appellate Procedure and Rules Regulating The Florida Bar. (A copy of the Third District Court of Appeal’s order is attached as Exhibit “C”).

22. Specifically, the court found a reasonable basis to conclude that respondent violated Rule 4-8.2(a) on September 17, 2018 when he filed his response to the petition for writ of prohibition.

23. The court also concluded that same was violated when respondent filed as Appendix 1 to his Response a copy of a jurisdictional brief that was filed in an unrelated case to the United States Supreme Court.

24. On or about April 10, 2019, the court entered its order of referral to The Florida Bar. (A copy of the Third District Court of Appeal’s order is attached as Exhibit “D”).

25. Based on the foregoing, Respondent is in violation of Rule 4-8.2(a) Impugning Qualifications and Integrity of Judges or Other Officers.

(A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, public legal officer, juror or member of the venire, or candidate for election or appointment to judicial or legal office) of the Rules Regulating The Florida Bar.

COUNT III: AS TO THE FLORIDA BAR FILE NO. 2020-70,056(11H)

26. Respondent’s conduct came to the attention of The Florida Bar as a result of a referral by the Honorable Michael A. Hanzman of the Eleventh Judicial Circuit Court in Miami-Dade County.

27. Notably, Judge Hanzman’s referral raised similar concerns with regard to respondent’s conduct as those raised and sanctioned by the Third District Court of Appeals of Florida.

28. Here, respondent represented the defendant in a civil lawsuit in the case styled Bank of New York Mellon v. Ryan Atkin, Case No. 2009-87096 CA.

29. On or about July 26, 2019, respondent filed a Verified Motion for Judicial Disqualification. In his motion, respondent continued to make disparaging and reckless comments regarding a member of the judiciary.

(A copy of respondent’s Verified Motion for Judicial Disqualification excluding attachments is attached as Exhibit “E”).

Excerpts of his comments are highlighted below:

• Judge Hanzman refused to respect the notice of unavailability and his office advised the hearing was still scheduled to move forward at this juncture.

This is the latest of a series of improper actions by Judge Hanzman that gives rise to Mr. Atkin’s objectively reasonable fears that he will not be given a fair hearing in this court.

• Judge Hanzman Has Repeatedly Ignored Obvious Fraud on the Court by Large Financial Institutions in Foreclosures While Abusing His Power to Chill Defense Counsel’s Zealous Advocacy Against Those Financial Institutions.

• Judge Hanzman has made repeated statements on the record and off the record that reflect his indifference to large financial institutions presenting false evidence to the court to obtain the equitable relief of foreclosure.

His personal finances appear to be heavily invested in the financial services sector which gives Mr. Atkin a reasonable fear Judge Hanzman will not be fair and impartial because it will negatively impact his significant personal financial holdings.

• Here, this Honorable Court has allowed the most rich and powerful segment of our society, the financial sector in which he is personally heavily invested in, to engage in felony misconduct and walk away without any punishment in violation of the Judicial Canons and the rule of law.

The Court was “unimpressed” with these allegations of felony misconduct based on a prior foreclosure trial that involved entirely different misconduct which the Court similarly excused.

30. On July 29, 2019, respondent’s motion for disqualification was denied as untimely and legally insufficient.

31. In addition to the incident described above, on or about May 3, 2019 and July 14, 2019, respectively, respondent filed a Motion for Determination of Entitlement to Prevailing Party Attorneys’ Fees and Re-hearing, and a Motion for an Award of Attorney’s Fees and Costs for Order Determining Entitlement of Multiplier.

32. In denying the motions, the court found that the defendant was not entitled to attorney’s fees and costs because same was neither plead nor requested in his pleadings.

The court further explained that the rule with regard to a claim for attorney’s fees is well established pursuant to controlling authority which respondent did not cite to, acknowledge or address in his motion.

(A copy of Judge Michael A. Hanzman’s order is attached as Exhibit “F”).

33. Judge Hanzman’s July 31, 2020, order further stated:

“Apparently Defendant’s counsel – Bruce Jacobs – has not gotten the message or been deterred by our appellate court’s issuance of an Order to Show Cause based upon its finding of ‘a reasonable basis to conclude Mr. Jacobs violated his duty of candor to the tribunal … by failing to disclose to this court controlling adverse case law, ” Aquasol Condo Ass ‘n, Inc v. HSBC Bank USA, 43 Fla. L. Weekly D2271 (Fla. 3d Sept. 26 2018), or its later Order Imposing Sanctions” and referral to the Florida Bar for appropriate disciplinary proceedings based – in part- on Mr. Jacobs’ ‘extraordinary and corrosive ‘ attacks ‘on the integrity of the trial court and this court.

‘Aquasol Condo Ass ‘n, Inc v. HSBC Bank USA, Nat’/ Ass ‘n, 43 Fla. L. Weekly D2699 (Fla. 3d DCA Dec. 5, 2018). Despite the appellate court’s findings and Bar referral, Mr. Jacobs’ recently filed a scurrilous motion to disqualify this Court and once again violated Rule 4-8.2(a) of the Rules and Regulation of the Florida Bar by impugning the integrity of this Court, and he has once again failed to cite controlling authorities.

In sum, Mr. Jacobs is unrepentant, undeterred, and continues to engage in the exact same behavior he was sanctioned for and which is now presumably being investigated by the Bar. Accordingly, this Order will be sent to the Florida Bar so it may be considered as part of any disciplinary proceeding. ”

34. Based on the foregoing, Respondent is in violation of Rules 4- 3.3(a)(3) False Evidence; Duty to Disclose.

(A lawyer shall not knowingly: fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel) and Rule 4-8.2(a) Impugning Qualifications and Integrity of Judges or Other Officers.

(A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, public legal officer, juror or member of the venire, or candidate for election or appointment to judicial or legal office) of the Rules Regulating The Florida Bar.

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

The court further explained that the rule with regard to a claim for attorney’s fees is well established pursuant to controlling authority which respondent did not cite to, acknowledge or address in his motion.

(A copy of Judge Michael A. Hanzman’s order is attached as Exhibit “F”).

Tonya L. Avery,
Bar Counsel
The Florida Bar
Miami Branch Office
444 Brickell Avenue
Rivergate Plaza, Suite M-100
Miami, Florida 33131-2404
(305) 377-4445
Florida Bar No. 190292
tavery@floridabar.org

Patricia Ann Toro Savitz,
Staff Counsel
The Florida Bar
651 E. Jefferson Street
Tallahassee,
Florida 32399-2300
(850) 561-5839
Florida Bar No. 559547
psavitz@floridabar.org

CERTIFICATE OF SERVICE

I certify that this document has been efiled with The Honorable John A. Tomasino, Clerk of the Supreme Court of Florida; with copies provided via email to Benedict P. Kuehne, at ben.kuehne@kuehnelaw.com and Roy D. Wasson, at roy@wassonandassociates.com Attorneys for Respondent, and that copies have been furnished by United States Mail via certified mail No. 7017 3380 0000 1082 7201, return receipt requested to Benedict P. Kuehne100 SE 2nd St. Ste. 3105, Miami, FL 33131-2100 and to Roy D. Wasson via certified mail No. 7017 3380 0000 1082 7218 at 28 W. Flagler St. Ste. 600, Miami, FL 33130-1893 and to Tonya L. Avery, Bar Counsel, The Florida Bar, via email at tavery@floridabar.org, on this 3rd day of November, 2020.

Patricia Ann Toro Savitz Staff Counsel

NOTICE OF TRIAL COUNSEL AND DESIGNATION OF PRIMARY EMAIL ADDRESS

PLEASE TAKE NOTICE that the trial counsel in this matter is Tonya L. Avery, Bar Counsel, whose address, telephone number and primary email address are The Florida Bar, Miami Branch Office, 444 Brickell Avenue Rivergate Plaza, Suite M-100Miami, Florida 33131-2404, (305) 377-4445 and tavery@floridabar.org; and Respondent need not address pleadings, correspondence, etc. in this matter to anyone other than trial counsel and to Staff Counsel, The Florida Bar, 651 E Jefferson Street, Tallahassee, Florida 32399-2300, psavitz@floridabar.org.

MANDATORY ANSWER NOTICE

RULE 3-7.6(h)(2), RULES REGULATING THE FLORIDA BAR, PROVIDES THAT A RESPONDENT SHALL ANSWER A COMPLAINT.

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Appellate Circuit

Judge Charles Wilson and Judge Lisa Branch Like Nothin’ Better than Reviving a Personal Vendetta

Our refrain remains the same. Check the case history to see if you’re about to be “stitched-up” by a panel which is maliciously assembled to execute personal vendettas.

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In This 2021 Foreclosure Case with Sanctions, two members of the Appellate Panel were on Prior Decisions.

In the case of Judge Wilson, he sat on the Coastal Bank v. Martin case (11th Cir.) and in the case of Judge Branch, she was a Panel member in the $2.7M judgment case referenced herein, the Greenstein v. Bank of Ozarks, while she was a Justice on the Court of Appeals in Georgia State Court. Now, the lawyer who was a named party in that case in relation to CEP–TEN Mile Resorts, is before Branch as a Federal Circuit Judge and both Wilson and Branch are conveniently and non-randomly assigned to the 3-panel in this case.

It’s another example of judicial bias from the Eleventh Circuit. “Our refrain remains the same” and we warn parties to do their homework and look to the lower court and aged history of litigants to see if you’re about to be “stitched-up” by a panel which is maliciously assembled to execute personal vendettas.

MAY 29, 2021

Coastal Bank v. Martin, No. 17-11998 (11th Cir. Nov. 20, 2017)

Greenstein v Bank of the Ozarks,  (GA COA, 2014)

(May 28, 2021)

Before WILSON, MARTIN, and BRANCH, Circuit Judges. PER CURIAM:

More than eight years after Truist Bank foreclosed on Roderick Wright’s and his mother’s homes,1 Wright sued Truist, alleging misconduct related to the underlying loans.

On Truist’s motion, the U.S. District Court for the Northern District of Georgia dismissed Wright’s complaint for failure to state a claim.

Wright argues that the district court erred in dismissing his complaint because:

(1) he pleaded an actionable claim for breach of duty by a notary public,

(2) his Georgia RICO Act claim was not time-barred, and

(3) his substantive claims were adequate to support his claims for punitive damages and attorney’s fees.

Because the district court properly dismissed these claims, we affirm.

Truist requests that we deem Wright’s appeal to be frivolous and award sanctions.

Wright requests that we strike portions of Truist’s motion for sanctions for ad hominem language and for us to award sanctions in his favor.

Because we conclude that Wright’s appeal is frivolous, we grant Truist’s motion for sanctions and remand to the district court for an assessment of attorney’s fees and costs.

As to Wright’s motion to strike and for sanctions, we conclude that the arguments in Truist’s motion for sanctions were not improper and deny Wright’s motion.

1 Truist was then known as the Branch Banking and Trust Company.

I. Background

A. Facts

Wright owned a real estate development business and began banking with Truist around 2000. In March 2010, Truist approached Wright with a restructuring plan for some of his commercial loans.

The plan involved securing and cross- collateralizing the loans with Wright’s and his mother’s homes.

Wright alleges that Truist told him that the restructuring plan would be in his best interests. In reliance on that representation, he subsequently executed the plan.

According to Wright, there were no witnesses or notaries present when he signed the plan documents. Afterwards, he alleges, Truist affixed false notary public attestations and witness signatures to the documents.

Truist then allegedly refused to accept full payoffs of the loans.

In November 2010, several months after the parties executed the restructuring plan, Truist foreclosed on Wright’s and his mother’s homes.

B. Procedural History

On December 16, 2019, Wright filed a complaint against Truist in the Superior Court of Gwinnett County, Georgia. Wright alleged that Truist was liable for breach of duty by a notary public, a violation of the Georgia RICO Act, punitive damages, and attorney’s fees.2

Truist subsequently removed the case to the U.S. District Court for the Northern District of Georgia.

2 Wright also alleged counts of fraud, breach of fiduciary duties, economic duress, and to “set aside improper documents.” Because the district court dismissed these claims and Wright

Truist then moved to dismiss Wright’s complaint for failure to state a claim upon which relief can be granted. In its motion, Truist argued that:

(1) Georgia law does not recognize a private cause of action based on violations of the notary public statutes,

(2) Wright’s Georgia RICO Act claim was barred by the applicable five-year statute of limitations, and

(3) Wright was not entitled to punitive damages or attorney’s fees because he failed to establish his underlying claims.

Wright responded and argued that Truist’s “procurement and participation in the intentional violations of” the notary public statutes was actionable under Georgia law, his Georgia RICO Act claim was timely because it “ar[ose] out of the conduct associated with the execution of [sealed documents]” and was subject to a twenty-year statute of limitations, and his claims for punitive damages and attorney’s fees survived because his underlying claims were adequately pleaded.

The district court granted Truist’s motion to dismiss.

It found that “[i]n Georgia, there is no private cause of action for a claim arising under the notary public statutes,” and that “employers are neither subject directly to nor held vicariously liable for violations of OCGA § 45-17-11 committed by a notary public employed by them.”

It rejected Wright’s argument that a twenty-year statute of limitations applied to his Georgia RICO Act claim because the Georgia RICO Act contains a five-year statute of limitations.

Lastly, it dismissed Wright’s claims for punitive damages and attorney’s fees because it had dismissed all of Wright’s underlying claims.

Wright timely appealed.

2 Wright also alleged counts of fraud, breach of fiduciary duties, economic duress, and to “set aside improper documents.” Because the district court dismissed these claims and Wright does not challenge that decision on appeal, we will limit our discussion to Wright’s remaining claims.

On appeal, Wright argues that the district court improperly dismissed his claim for breach of duty by a notary public because it “misinterpreted case law detailing liability of an employer that procured an employee-notary’s violation of [the notary public statute].”

He also argues that it erred in dismissing his Georgia RICO Act claim because it “failed to recognize that the racketeering activity alleged . . . related to the improper attestations of the notaries subjecting the RICO claim to twenty-year statute of limitations under O.C.G.A. § 9-3-23 because the false swearing and false statements were upon sealed instruments.”

Finally, he argues that because his claim for breach of duty by a notary public and his Georgia RICO Act claim “should be reinstated . . . [his claims] for punitive damages and attorneys’ fees should likewise be reinstated.”

After Wright filed his opening brief, Truist filed a motion for sanctions under Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1927.3

In its 28 U.S.C. § 1927 states:

“Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”

Truist argued that Wright’s appeal was frivolous because it was clearly foreclosed by governing law. Truist also made references to the facts that:

(1) Wright’s counsel, Eric J. Nathan, had been sanctioned by this Court in Coastal Bank v. Martin, 717 F. App’x 860, 865–66 (11th Cir. 2017), for failing to disclose controlling authority,

and

(2) Truist had obtained a judgment against Nathan in a separate matter for $2,737,372.61. (LIF Comment: Greenstein v. Bank of the Ozarks, 757 S.E.2d 254 (Ga. Ct. App. 2014).

Based on these facts, Truist suggested that Wright and Nathan were waging a “vendetta” against it.

In response, Wright filed a motion to strike Truist’s motion for containing ad hominem language and requested sanctions.

He argued that Truist “inserted no fewer than eight ad hominem attacks directly, and unnecessarily, attacking the personal credibility and character of Counsel for Wright and Wright himself,” in violation of Eleventh Circuit Rule 25-6.4

According to Wright, it was inappropriate for Truist to mention that Nathan had been sanctioned by this Court or that it had obtained a judgment against Nathan.

He also requested that we impose sanctions against Truist and its counsel under our inherent authority for their purported “continued and pervasive ad hominem attacks.”

3 Rule 38 states: “If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.”

28 U.S.C. § 1927 states: “Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”

4 Eleventh Circuit Rule 25-6 states: “When any paper filed with the court, including motions and briefs, contains . . . ad hominem or defamatory language . . . the court . . . may without prior notice take appropriate action . . . includ[ing] ordering that: the document be sealed; specified language or information be stricken from the documents; the document be struck from the record; the clerk be directed to remove the document from electronic public access; the party who filed the document either explain why including the specified language or disclosing the specified information in the document is relevant, necessary, and appropriate or file a redacted or replacement document.”

II. Analysis

We review the district court’s grant of Truist’s motion to dismiss de novo, accepting the allegations in Wright’s complaint as true and construing them in the light most favorable to him. McGroarty v. Swearingen, 977 F.3d 1302, 1306 (11th Cir. 2020).

A. Breach of Duty by a Notary Public

Wright argues that the district court erroneously dismissed his claim for breach of duty by a notary public. The district court dismissed the claim because it found that, “[i]n Georgia, there is no private cause of action for a claim arising under the notary public statutes.”
Under O.C.G.A. § 45-17-8(d), “[a] notary public shall not execute a notarial certificate containing a statement known by the notary to be false nor perform any action with an intent to deceive or defraud.” In Anthony v. American General Financial Services Inc., 697 S.E.2d 166, 171–75 (Ga. 2010) (“Anthony I”), the Supreme Court of Georgia held that the notary public statutes do not create a private cause of action. We subsequently adopted that ruling and affirmed a district court’s dismissal of “a private civil claim under the notary fee statute.”5

5 In his complaint, Wright bases his claim for breach of duty by a notary public on O.C.G.A. § 45-17-8(d) in conjunction with O.C.G.A. § 51-1-6. Section 51-1-6 states:

“When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party  may recover for the breach of such legal duty if he suffers damage thereby.”

Wright does not make any argument related to O.C.G.A. § 51-1-6 on appeal.

Regardless, in Branch Banking & Trust Co. v. Morrisroe, 746 S.E.2d 859, 861 (Ga. Ct. App. 2013), the Court of Appeals of Georgia held that O.C.G.A. § 45-17-8(d) in conjunction with O.C.G.A. § 51-1-6 does not create a viable cause of action because “[a] duty cannot rest solely on OCGA § 51-1-6 . . . because it merely sets forth general principles of tort law.”

Thus, O.C.G.A. § 51-1-6 does not affect our analysis of whether there is a private cause of action for breach of duty by a notary public under O.C.G.A. § 45-17-8(d).

Anthony v. Am. Gen. Fin. Servs., Inc., 626 F.3d 1318, 1321 (11th Cir. 2010) (“Anthony II”).

Wright ignores these holdings and points to language in Anthony I where the Supreme Court of Georgia stated: “[A]lthough a corporation cannot be directly or vicariously liable for a violation of OCGA § 45-17-11, it still may be liable if it procures or otherwise qualifies as a party to or participating in such a violation by a notary.” 697 S.E.2d at 171;

See id. at 170 (“But under well-established principles, the corporation (or other person) may still be liable if it participates in or procures the notary’s violation. In terms of criminal liability, this is simply the concept of being a party to a crime.”).

He argues that this language permits his claim against Truist to go forward.

But Wright misinterprets this language. Although the Supreme Court of Georgia stated that a “corporation . . . may still be liable if it participates in or procures the notary’s violation,” Anthony I, 697 S.E.2d at 170 (emphasis omitted), it was not creating a private cause of action for violations of the notary public statutes.

Instead, it was merely noting that a plaintiff “may be able to pursue civil liability against [a party who violates the statute] under other applicable tort or contract laws of this State.” Id. at 175.

It is for those claims—for violations of “other applicable tort or contract laws”—that a corporation may be held liable as a joint wrongdoer under the notary public statutes.

See id. at 170 (“[I]n all cases, a person who maliciously procures an injury to be done to another, whether an actionable wrong or a breach of contract, is a joint wrongdoer and may be subject to an action either alone or jointly with the person who actually committed the injury.” (quoting O.C.G.A. § 51-12-30)).

Because the Supreme Court of Georgia and this Court have both clearly held that the notary public statutes do not create a private cause of action, the district court properly dismissed Wright’s claim.6

B. Georgia RICO Act

Next, Wright argues that the district court applied the wrong statute of limitations to his Georgia RICO Act claim.

Under the Georgia RICO Act, “[n]otwithstanding any other provision of law, a criminal or civil action or proceeding under this chapter may be commenced up until five years after the conduct in violation of a provision of this chapter terminates or the cause of action
accrues.” O.C.G.A. § 16-14-8 (2011)7;

See Glock, Inc. v. Harper, 796 S.E.2d 304, 306 (Ga. Ct. App. 2017).

The district court applied this five-year statute of limitations and found that Wright’s claim was “over three (3) years late” because “the most recent action taken by [Truist] relevant to this claim was on May 3, 2011, when it foreclosed on the last of the collateral properties.”8

Wright argues that his Georgia RICO Act claim is subject to the twenty-year statute of limitations of O.C.G.A. § 9-3-23 instead, because the claim arises out of conduct related to the execution of sealed instruments.9

This argument fails for two reasons.

First, the Georgia RICO Act states that the five-year statute of limitations applies “[n]otwithstanding any other provision of law.”10 O.C.G.A. § 16-14-8 (2011).

In his reply brief, Wright argues that “[t]he word ‘notwithstanding’ does not mean that no other rule could apply” and that nothing in the statute “prevent[s] a party from availing itself of a more liberal rule of law such as O.C.G.A. § 9-3-23.”11

But “notwithstanding” means: “Despite; in spite of.” Notwithstanding, Black’s Law Dictionary (11th ed. 2019).

Thus, we conclude that O.C.G.A. § 16-14-8 (2011) supplies the exclusive statute of limitations for Wright’s Georgia RICO Act claim. Because Wright did not file his claim within five years of May 3, 2011, the district court properly dismissed it.

Second, Wright’s expansive interpretation of the twenty-year statute of limitations for sealed instruments has been rejected by the Supreme Court of Georgia.

In Harris v. Black, the Supreme Court of Georgia held that “if suit is brought upon an official bond under seal, for a breach thereof,” then the twenty- year statute of limitations applies. 85 S.E. 742, 747 (Ga. 1915).

But “if the action is brought against the officer individually, and not upon his bond, different periods of limitations may apply according to whether the action sounds in tort or in contract; and if the former, the limitation is dependent upon the particular character of the tort.” Id.

Because Wright’s Georgia RICO Act claim is not a claim “upon an official bond,” it is not subject to the twenty-year statute of limitations of O.C.G.A. § 9-3-23 and was properly dismissed.

6 Even if O.C.G.A. § 45-17-8(d) created a private cause of action for breach of duty by a notary public, Wright’s claim would still fail because he did not meet the four-year statutes of limitations for injuries to realty or personalty under O.C.G.A. §§ 9-3-30 and 9-3-31. See, e.g., Godwin v. Mitzpah Farms, LLLP, 766 S.E.2d 497, 507 (Ga. Ct. App. 2014).

7 O.C.G.A. § 16-14-8 was amended in 2015. Because the amendment was not retroactive, see Glock, Inc. v. Harper, 796 S.E.2d 304, 306 (Ga. Ct. App. 2017), we will apply the version of the statute that was in effect at the relevant time.

8 Wright does not dispute that the statute of limitations on his Georgia RICO Act claim began to run on May 3, 2011.

9 See O.C.G.A. § 9-3-23 (“Actions upon bonds or other instruments under seal shall be brought within 20 years after the right of action has accrued.”).

10 Even though the district court dismissed Wright’s Georgia RICO Act claim based on O.C.G.A. § 16-4-8—the applicable statute of limitations—Wright did not discuss the statute at all in his opening brief.

C. Punitive Damages and Attorney’s Fees

Wright acknowledges that his claims for punitive damages and attorney’s fees must fail if his substantive claims are dismissed.

Because we affirm the district court’s dismissal of his substantive claims, we also affirm its dismissal of his claims for punitive damages and attorney’s fees.

See generally Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1304–05 (11th Cir. 2009).

III. Sanctions

A. Wright’s Motion for Sanctions

Wright argues that we should strike certain language in Truist’s motion for sanctions for being ad hominem and requests sanctions for Truist’s decision to include that language in its motion.

In particular, he contends that it was inappropriate for Truist to mention that Nathan had been sanctioned by this Court for a frivolous appeal or that Truist had obtained a multi-million-dollar judgment against Nathan.

Truist’s motion for sanctions was based, in part, on 28 U.S.C. § 1927.

To prevail on its claim for sanctions under § 1927, Truist was required to “show subjective bad-faith.” Hyde v. Irish, 962 F.3d 1306, 1310 (11th Cir. 2020).

“This standard can be met either (1) with direct evidence of the attorney’s subjective bad faith or (2) with evidence of conduct so egregious that it could only be committed in bad faith.” Id. (quotation omitted);

See Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1242 (11th Cir. 2007) (“A determination of bad faith is warranted where an attorney knowingly or recklessly pursues a frivolous claim or engages in litigation tactics that needlessly obstruct the litigation of non-frivolous claims.” (quotation omitted)).

The facts that Nathan had been sanctioned by this Court for a frivolous appeal and that Truist had obtained a multi-million-dollar judgment against him are clearly relevant to whether Nathan “knowingly or recklessly pursue[d] a frivolous claim.” Amlong, 500 F.3d at 1242.

And because these facts were relevant to Truist’s claims, we decline to strike or seal Truist’s motion or the related filings.

See 11th Cir. R. 25-6 (suggesting that a paper filed with the court may contain arguably ad hominem language where it is “relevant, necessary, and appropriate”).

Because we conclude that it was not inappropriate for Truist to mention these facts, we deny Wright’s request for us to award sanctions.

To award sanctions under our inherent powers, we “must find that the lawyer’s conduct ‘constituted or was tantamount to bad faith.’” Thomas v. Tenneco Packaging Co., Inc., 293 F.3d 1306, 1320 (11th Cir. 2002) (quotation omitted).

In Thomas, we awarded sanctions where the lawyer made:

“(1) insulting remarks about opposing counsel’s physical traits and demeanor,

(2) comments that called into question opposing counsel’s fitness as a member of the bar,

(3) thinly veiled threats aimed at opposing counsel,

(4) a racial slur, and

(5) unsubstantiated claims that opposing counsel was a racist.”

Id. at 1323.

Unlike the lawyer in Thomas, Truist did not engage in conduct “tantamount to bad faith.”

As already discussed, Truist’s mention of the facts that Nathan had been sanctioned by this Court and that Truist had obtained a multi-million-dollar judgment against him was not inappropriate because it was relevant to Truist’s claims under § 1927.

11 Ordinarily, we do not consider an argument raised for the first time on reply.

Mamone V.United States, 559 F.3d 1209, 1210 n.1 (11th Cir. 2009).

But we will address Wright’s argument here to demonstrate that it is frivolous.

B. Truist’s Motion for Sanctions

Truist argues that Wright’s appeal is frivolous and requests that we award attorney’s fees and double costs under Federal Rule of Appellate Procedure 38.

Wright argues that his appeal is not frivolous—specifically, that “[t]he two enumerations of error in this case are essentially issues of first impression in this Court . . . and have not been fully addressed or settled by any Georgia Appellate Court.”

We may impose sanctions under Rule 38 against a party who “raises clearly frivolous claims in the face of established law and clear facts.”

Parker v. Am.Traffic Sols., Inc., 835 F.3d 1363, 1371 (11th Cir. 2016) (quotation omitted);

See Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1359 (11th Cir. 2018).

“[A] claim is clearly frivolous if it is utterly devoid of merit.”

Parker, 835 F.3d at 1371 (quotation omitted).

When determining whether to award sanctions, we may review the “continuous series of events . . . which gave rise to this appeal.”

Bonfiglio v. Nugent, 986 F.2d 1391, 1393 (11th Cir. 1993).

Wright filed a complaint containing at least four counts that were barred by the applicable statutes of limitations, a conclusion that he does not challenge on appeal.

Then, on appeal, he raised two arguments that were directly foreclosed by precedent from the Eleventh Circuit and the Supreme Court of Georgia, and by the plain language of O.C.G.A. § 16-14-8 (2011).

See Bonfiglio, 986 F.2d at 1394 (awarding sanctions where the appellant “stubbornly filed [an] appeal in which he repeate[d] to this Court the utterly frivolous contentions he made in the district court”).

Finally, when Truist filed a motion for sanctions based on this conduct, Wright filed a meritless motion to strike and for sanctions.

Wright’s arguments on appeal were devoid of merit because Anthony I and Anthony II clearly establish that the notary public statutes do not create a private cause of action and because O.C.G.A. § 16-14-8 (2011) clearly establishes a five- year statute of limitations for Georgia RICO Act claims.

More egregiously, Wright did not even mention O.C.G.A. § 16-14-8 (2011)—the applicable statute of limitations, which the district court relied on to dismiss his Georgia RICO Act claim—in his opening brief.

Instead, he waited until his reply brief to argue that O.C.G.A. § 16-14-8 (2011) does not apply here because “[t]he word ‘notwithstanding’ does not mean that no other rule could apply.”

This argument is utterly devoid of merit and Wright has provided no non-frivolous argument why the Georgia RICO Act’s five-year statute of limitations does not bar his Georgia RICO Act claim.

Thus, as a sanction, we order Wright and his counsel to pay double the costs of this appeal, as well as reasonable attorney’s fees to Truist.

See Bonfiglio, 986 F.2d at 1394;

See Taiyo Corp. v. Sheraton Savannah Corp., 49 F.3d 1514, 1515 (11th Cir. 1995) (imposing joint and several liability for Rule 38 sanctions).

“We remand this case to the district court with instructions for it to calculate and assess the attorneys’ fees and costs that [Wright and his counsel are] to pay in connection with this appeal and to order that amount paid.” Bonfiglio, 986 F.2d at 1395.

IV. Conclusion

For these reasons, we affirm the district court’s decision and remand the case to the district court to assess attorney’s fees and costs.

AFFIRMED and REMANDED.

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