Connect with us

Bankers

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.

Published

on

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: SEP 5, 2021

Judge Cannon decides to slow it down and send out an unnecessary scheduling order  on September 3, with trial date in July 2022. The default judgment(s) should have been entered and the corrupt lawyer(s) reported to the Florida Bar and Prosecutor. That, however, is not what happens in S.D. Fl. Federal Court when it involves lawyers.

LIF Update: AUG 26, 2021

On July 19, (Doc. 35) Global Resource file a response saying they are waiting for all parties to be held liable, including Mario German and his law firm before asking for default judgment.  The deadline for response is 20 July, 2021 has well and truly past and not a peep on the docket, as LIT anticipated. This is a clear case of theft of funds by all parties named by Global Resource and Cannon needs to release the cannonballs. It’s time.

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
06/21/202133PAPERLESS 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)
06/17/202132ORDER 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 byHeather 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 byDustin 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
09/06/201332OPINION AND ORDER, denying 28 Motion to Sever. Signed by Judge Kenneth A. Marra on 9/5/2013. (cqs) (Entered: 09/06/2013)
09/06/201333Unopposed 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)
09/10/201334ENDORSED 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)
09/26/201335Second 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)
10/01/201336AMENDED 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)
10/02/201337ORDER 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)
10/27/201338Joint 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)
10/30/201339ORDER 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)
06/02/201440STIPULATION of Dismissal by Federal Deposit Insurance Corporation (Attachments: # 1 Text of Proposed Order)(Breur, George) (Entered: 06/02/2014)
06/04/201441ORDER 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)

YOUR DONATION(S) WILL HELP US:

• Continue to provide this website, content, resources, community and help center for free to the many homeowners, residents, Texans and as we’ve expanded, people nationwide who need access without a paywall or subscription.

• Help us promote our campaign through marketing, pr, advertising and reaching out to government, law firms and anyone that will listen and can assist.

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



Appellate Circuit

Constance Daniels, Student of Hard Knocks, Admonished Florida Lawyer and Friend of The Eleventh Circuit

LIF cannot comprehend how the People of Florida and the United States of America are so accepting of Brazen Corruption.

Published

on

LIF UPDATE

OCT 26, 2022

Five months after the 11th Circuit saved a colleague and lawyer from foreclosure, the mandate issued (without en banc hearing) and as instructed (reversed and remanded) the lower court has reopened the case.

LIT will be tracking this case closely, stay tuned.

LIF COMMENTARY

The article below starts with Constance Daniels failure to pay for her law school tuition loan issued in 2003. She defaulted in 2005 per the complaint. The USA won a judgment of $164k+ in 2011.

In 2010, Wells Fargo commenced foreclosure proceedings in state court, Hillsborough County.

While all this was going on, Ms Daniels, a Republican, was attempting to become a State judge in 2014, which failed.

In late November of 2017 a settlement was reached, dismissing the Wells Fargo foreclosure complaint.

In 2017-2018, lawyer Daniels was failing to look after her client(s). Many moons later, in 2021, that would result in a slap on the wrist by the referee, Hon. Daniel D. Diskey for Fl. Bar.

Then we move onto the June 2018 complaint, filed by Daniels against the mortgage servicer. It was removed to the lower court in Middle District  of Florida Federal Court.

The court, via one of the Moody clan of judges, sided with Select Portfolio Servicing, LLC and this formed the appeal which was decided this week by the 11th Circuit.

In Nov. 2020, Wells Fargo filed a renewed foreclosure complaint against Daniels and her homestead in State court. In Sept 2021, Wells Fargo voluntarily dismissed the case and terminated the lis pendens ‘due to loan modification’.

The issue for LIF in this case is quite clear. Who the 11th Circuit has chosen to upend it’s prior stance that mortgage servicers can do no wrong under the FDCPA, despite irrefutable facts confirming otherwise.

For example, LIF refers to the case we highlighted regarding a deficiency judgment (State case, March 2022):

Florida Lawyer Stephanie Schneider Appeals a Mortgage Foreclosure Deficiency Judgment

In that case, LIF investigated beyond the court opinions to discover the wife is a Florida Lawyer and her husband, Laurence Schneider is owner of S&A Capital, Inc., a mortgage investment company, has built a national portfolio of performing mortgages that have been written off by other financial institutions.

Our angst is clear. Lawyers are being treated preferentially by the courts over regular citizens and homeowners.

In the case of Daniels, whilst she may have legitimate arguments, there have been many citizens who have failed before her by the wordsmithing by the Federal and Appellate Court(s), which has refused to apply the correct legal interpretation of the FDCPA, or clarify the question(s) with the federal consumer agency, the CFPB.

Whilst LIF is unhappy with the anti-consumer watchdog, the Consumer Financial Protection Bureau (CFPB) which is a revolving door for staff to leave the Bureau and go work for a creditor rights law firm without any restriction or time limit (non-compete), the Daniels case should have been referred to the CFPB for interpretation about the matters of ‘first impression’.

The Second Circuit recently did so for a RESPA question in Naimoli v Ocwen and we highlighted the case on our sister website, LawsInTexas.com (Laws In Texas). Instead of doing so in Daniels, there is a dissenting opinion by Judge Lagoa, who’s father in law is a  senior judge in SD Florida (Paul C. Huck) and her hubby is a Jones Day Partner and apparently the leader of the Miami Chapter of the Federalist Society. Lagoa herself is a former Florida Supreme Court justice appointed by Gov DeSantis who ‘ensured he puts conservatives on the bench so that anyone coming to court knows how the court will rule’.

LIF anticipates the Daniels case will be subject to a rehearing petition and presented to the full en banc court for reconsideration. The opinion here is similar to the recent Newsom FDCPA opinion, which was too negative towards Wall St and the financial banking services community. As such, it was vacated by the en banc panel while they reconsider. The courts’ decision is currently pending.

In this case, there is still time for the 11th Circuit to correctly ask the CFPB to provide its opinion on the underlying facts raised on appeal and decided by the 3-panel.

However, what the judiciary won’t do is apply this retroactively to the thousands of cases which have been incorrectly tossed in the last 14 years, resulting in homeowners losing their homes to wrongful foreclosures.

United States v. Daniels (2011)

(8:11-cv-01058)

District Court, M.D. Florida

MAY 13, 2011 | REPUBLISHED BY LIT: MAY 26, 2022

USA Motion for Summary Judgment with Exhibits, Doc. 13, Aug 17, 2011

ORDER granting  Motion for summary judgment in favor of the Plaintiff and against the defendant in the amount of $109,813.74,

together with accrued interest in the amount of $54,097.10 as of February 28, 2011,

plus interested at the rate of 8.25 percent per annum and a daily rate of $24.80, until the date of judgment;

for post-judgment interest, at the legal rate, from the entry of final judgment until the date of payment;

and for such other costs of litigation otherwise allowed by law.

The Clerk of Court is directed to close the case.

Signed by Judge Elizabeth A. Kovachevich on 9/22/2011.

(SN) (Entered: 09/22/2011)

U.S. District Court
Middle District of Florida (Tampa)
CIVIL DOCKET FOR CASE #: 8:11-cv-01058-EAK-AEP

USA v. Daniels
Assigned to: Judge Elizabeth A. Kovachevich
Referred to: Magistrate Judge Anthony E. Porcelli
Demand: $164,000
Cause: 28:1345 Default of Student Loan
Date Filed: 05/13/2011
Date Terminated: 09/22/2011
Jury Demand: None
Nature of Suit: 152 Contract: Recovery Student Loan
Jurisdiction: U.S. Government Plaintiff
Plaintiff
USArepresented byI. Randall Gold
US Attorney’s Office – FLM
Suite 3200
400 N Tampa St
Tampa, FL 33602-4798
813/274-6026
Fax: 813/274-6247
Email: FLUDocket.Mailbox@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
V.
Defendant
Constance Danielsrepresented byConstance Daniels
PO Box 6219
Brandon, FL 33608
PRO SE

 

Date Filed#Docket Text
05/13/20111COMPLAINT against Constance Daniels filed by USA. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Civil Cover Sheet)(MRH) (Entered: 05/13/2011)
05/13/20112Summons issued as to Constance Daniels. (MRH) (Entered: 05/13/2011)
05/13/20113ORDER regulating the processing of civil recovery actions. Service must be perfected by 09/10/2011. Signed by Deputy Clerk on 5/13/2011. (MRH) (Entered: 05/13/2011)
05/13/20114STANDING ORDER: Filing of documents that exceed twenty-five pages. Signed by Judge Elizabeth A. Kovachevich on 7/15/08. (MRH) (Entered: 05/13/2011)
05/19/20115NOTICE of designation under Local Rule 3.05 – track 1 (CLM) (Entered: 05/19/2011)
05/20/20116CERTIFICATE OF SERVICE re 3 ORDER regulating the processing of civil recovery actions by USA (Gold, I.) Modified on 5/20/2011 (MRH). (Entered: 05/20/2011)
05/25/20117CERTIFICATE OF SERVICE by USA (Notice of Designation Under Local Rule 3.05) (Gold, I.) (Entered: 05/25/2011)
07/06/20118RETURN of service executed on 7/5/11 (Marshal 285) by USA as to Constance Daniels. (MRH) (Entered: 07/06/2011)
07/27/20119MOTION for default judgment against Constance Daniels by USA. (Gold, I.) Modified on 7/27/2011 (MRH). NOTE: TERMINATED. INCORRECT MOTION RELIEF. ATTORNEY NOTIFIED. ATTORNEY TO REFILE. (Entered: 07/27/2011)
07/27/201110MOTION for entry of clerk’s default against Constance Daniels by USA. (Gold, I.) Motions referred to Magistrate Judge Anthony E. Porcelli. (Entered: 07/27/2011)
07/28/201111CLERK’S ENTRY OF DEFAULT as to Constance Daniels. (MRH) (Entered: 07/28/2011)
07/29/201112ANSWER to 1 Complaint by Constance Daniels.(BES) (Entered: 07/29/2011)
08/17/201113MOTION for summary judgment by USA. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Gold, I.) (Entered: 08/17/2011)
09/09/201114ENDORSED ORDER TO SHOW CAUSE as to Constance Daniels.. The plaintiff filed a motion for summary judgment on 8/17/11. The defendant had up to and including 9/3/11 to respond to the motion. To date no response has been filed. Therefore, it is ORDERED that the defendant has up to and including 9/19/11 in which to show cause why the pending motion should not be granted. Signed by Judge Elizabeth A. Kovachevich on 9/9/2011. (SN) (Entered: 09/09/2011)
09/22/201115ORDER granting 13 Motion for summary judgment in favor of the Plaintiff and against the defendant in the amount of $109,813.74, together with accrued interest in the amount of $54,097.10 as of February 28, 2011, plus interested at the rate of 8.25 percent per annum and a daily rate of $24.80, until the date of judgment; for post-judgment interest, at the legal rate, from the entry of final judgment until the date of payment; and for such other costs of litigation otherwise allowed by law. The Clerk of Court is directed to close the case.. Signed by Judge Elizabeth A. Kovachevich on 9/22/2011. (SN) (Entered: 09/22/2011)
10/12/201116ABSTRACT of judgment as to Constance Daniels. (DMS) (Entered: 10/12/2011)

Order GRANTING Summary Judgment for $164k Student Loan Debt, Doc. 15, Sep 22, 2011

Daniels v. Select Portfolio Servicing, Inc.

(2018-Present)

(8:18-cv-01652)

District Court, M.D. Florida

ORDER

THIS CAUSE comes before the Court upon Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint (Dkt. 24) and Plaintiff’s Response in Opposition (Dkt. 27).

The Court, having reviewed the motion, response, and being otherwise advised in the premises, concludes that Defendant’s motion should be granted.

Specifically, Plaintiff’s second amended complaint will be dismissed with prejudice because any further amendment is futile.

BACKGROUND

As the Court explained in its prior Order granting Defendant’s motion to dismiss, (see Dkt. 22), Plaintiff Constance Daniels initially filed suit in Florida state court against Defendant Select Portfolio Servicing, Inc. (“SPS”) alleging three Florida claims, which included a claim under Florida’s civil Racketeer Influenced and Corrupt Organizations (“RICO”) Act.

On July 10, 2018, SPS removed the case to this Court based on diversity jurisdiction.

On August 6, 2018, SPS moved to dismiss the entire complaint.

In relevant part, SPS argued that the complaint failed to allege any of the elements of a RICO claim.

On August 27, 2018, Daniels filed an amended complaint, which mooted SPS’s motion to dismiss.

Daniels’ amended complaint alleged two claims: a claim under the Fair Debt Collection Practices Act (“FDCPA”) and a claim under the Florida Consumer Collections Practices Act (“FCCPA”).

Both claims relied on the same allegations.

To summarize, Daniels alleged that SPS had “improperly servic[ed]” her mortgage loan “in reckless disregard” of her consumer rights. (Dkt. 12).

The amended complaint did not attach any mortgage statements.

SPS moved to dismiss Daniels’ amended complaint based on her failure to allege that SPS ever attempted to collect the mortgage balance.

The Court granted SPS’s motion.

The Court noted that the amended complaint did not identify or attach any communication from SPS to Daniels.

The Court also surmised that the dispute was more akin to a dispute about an improper accounting of Daniels’ mortgage.

The Court dismissed the FDCPA and FCCPA claims and provided Daniels a final opportunity to amend her complaint.

Daniels filed a second amended complaint.

The allegations are largely unchanged.

But, significantly, Daniels attaches multiple monthly mortgage statements that SPS sent to her.

She now claims that these mortgage statements constitute debt collection activity under the FDCPA and FCCPA.

SPS’s motion to dismiss argues that the monthly mortgage statements comply with Regulation Z of the Truth in Lending Act (the “TILA”)—they were not communications in connection with the collection of a debt—and therefore do not constitute debt collection activity under the FDCPA and FCCPA.

As explained further below, the Court agrees with SPS’s position based on the Court’s detailed review of the monthly mortgage statements.

Therefore, the second amended complaint will be dismissed with prejudice.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint when it fails to state a claim upon which relief can be granted.

When reviewing a motion to dismiss, a court must accept all factual allegations contained in the complaint as true.

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citation omitted).

It must also construe those factual allegations in the light most favorable to the plaintiff.

Hunt v. Aimco Properties, L.P., 814 F.3d 1213, 1221 (11th Cir. 2016) (internal citation omitted).

To withstand a motion to dismiss, the complaint must include “enough facts to state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

A claim has facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Pleadings that offer only “labels and conclusions,” or a “formulaic recitation of the elements of a cause of action,” will not do.

Twombly, 550 U.S. at 555.

DISCUSSION

The FDCPA and FCCPA prohibit debt collectors from using a “false, deceptive, or misleading representation or means in connection with the collection of any debt.”

See e.g. 15 U.S.C. § 1692e (emphasis added);

Fla. Stat. § 559.72 (“In collecting debts, no person shall . . .”) (emphasis added).

It is axiomatic then that the “challenged conduct is related to debt collection” to state a claim under either statute.

Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1216 (11th Cir. 2012);

see also Garrison v. Caliber Home Loans, Inc., 233 F. Supp. 3d 1282, 1286 (M.D. Fla. 2017) (“the FCCPA is a Florida state analogue to the federal FDCPA.”) (internal citations omitted).

“[T]he Eleventh Circuit has not established a bright-line rule” as to what qualifies as “in connection with the collection of any debt.”

Dyer v. Select Portfolio Servicing, Inc., 108 F. Supp. 3d 1278, 1280 (M.D. Fla. 2015).

“As a general principle, the absence of a demand for payment is not dispositive,” and courts should “instead consider whether the overall communication was intended to induce the debtor to settle the debt.”

Wood v. Citibank, N.A., No. 8:14-cv-2819-T-27EAJ, 2015 WL 3561494, at *3 (M.D. Fla. June 5, 2015) (citations omitted).

The second amended complaint attaches multiple monthly mortgage statements.1

Because the communications at issue here are all monthly mortgage statements, a discussion of the TILA is necessary.

The TILA requires SPS, a servicer, to send monthly mortgage statements.

12 C.F.R. § 1026.41. Specifically, 12 C.F.R. § 1026.41(d) requires that servicers provide debtors with detailed monthly mortgage statements containing, among other things: the “amounts due;” the “payment due date;” “the amount of any late payment fee, and the date that fee will be imposed if payment has not been received;” “an explanation of amount due, including a breakdown showing how much, if any, will be applied to principal, interest, and escrow and, if a mortgage loan has multiple payment options, a breakdown of each of the payment options;” “any payment amount past due;” a breakdown of “the total of all payments received since the last statement” and “since the beginning of the current calendar year;” “a list of all transaction activity that occurred since the last statement;” “partial payment information;” “contact information;” and detailed “account information” and “delinquency information.”

The Consumer Financial Protection Bureau (the “CFPB”) has issued a bulletin providing that a

“servicer acting as a debt collector would not be liable under the FDCPA for complying with [monthly mortgage statement] requirements.”

Implementation Guidance for Certain Mortgage Servicing Rules, 10152013 CFPB GUIDANCE, 2013 WL 9001249 (C.F.P.B. Oct. 15, 2013).

Courts have largely followed this guidance.

See, e.g., Jones v. Select Portfolio Servicing, Inc., No. 18-cv-20389, 2018 WL 2316636, at *3 (S.D. Fla. May 2, 2018) (citing 12 C.F.R. § 1026.41(d));

Brown v. Select Portfolio Servicing, Inc., No. 16-62999-CIV, 2017 WL 1157253 (S.D. Fla. Mar. 24, 2017) (noting the guidance and finding that monthly mortgage statements in compliance with the TILA were not debt collection).

The monthly mortgage statements at issue here were in conformity with the TILA requirements.

Moreover, the subject statements were substantially similar to model form H-30(B) provided by Appendix X to Part 1026 of TILA Regulation Z.

See also Jones, 2018 WL 2316636, at *4 (noting the similarities between a monthly mortgage statement and the model form in concluding no debt collection).

Although the monthly mortgage statements may not be identical to model form H-30(B), the differences are not significant deviations.

Notably, the plaintiff in Brown brought a nearly identical lawsuit against SPS.

The court explained in detail why the plaintiff was unable to state a claim under the FDCPA and FCCPA because the monthly mortgage statement was required to be sent pursuant to the TILA.

The complaint in Brown was dismissed with prejudice because “amendment would be futile” given that the basis for the claims was a monthly mortgage statement that was not actionable as a matter of law.

See 2017 WL 1157253, at *2-*4.

Also, the Jones court discussed in detail the numerous prior decisions addressing this issue, including multiple cases from this district that have held that monthly mortgage statements

“are almost categorically not debt collection communications under the FDCPA.”

2018 WL 2316636, at *5 (citing cases).

The particular monthly mortgage statements before the court in Jones were also sent by SPS and were substantively identical to the statements at issue in this case and in Brown.

Most recently, in Mills v. Select Portfolio Servicing, Inc., No. 18-cv-61012- BLOOM/Valle, 2018 WL 5113001 (S.D. Fla. Oct. 19, 2018), the court “agree[d] with the reasoning in Jones and [concluded] that the Mortgage Statements at issue [were] not communications in connection with a collection of a debt.” Id. at *2.

In conclusion, the substance of the monthly mortgage statements at issue in this case is substantially similar to model form H-30(B).

Any minor discrepancies in the language—when taken in the context of the document as an otherwise carbon copy of form H-30(B)—do not take the statements out of the realm of a monthly mortgage statement and into the realm of debt collection communications.

It is therefore ORDERED AND ADJUDGED that:

1. Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint (Dkt.

24) is granted.

2. Plaintiff’s Second Amended Complaint is dismissed with prejudice.

3. The Clerk of Court is directed to close this case and terminate any pending motions as moot.

DONE and ORDERED in Tampa, Florida on December 18, 2018.

 

 

 

 

Copies furnished to: Counsel/Parties of Record

Judge Bert Jordan’s “Reputation” Warning to New Florida Lawyers

Constance Daniels Admonished by the Florida Bar (2021)

Constance Daniels, P.O. Box 6219, Brandon, admonishment in writing and directed to attend Ethics School effective immediately following a November 24 court order.

(Admitted to practice: 1995)

Daniels failed to act with reasonable diligence and failed to communicate with her client in connection with a dissolution of marriage action.

Daniels also failed to timely respond to the Bar’s formal complaint.

(Case No: SC21-683)

Constance Daniels v. Select Portfolio Servicing, Inc. (2022)

11th Cir., Published Opinion

(19-10204, May 24, 2022)

“A matter of first impression” 14 Years after the great recession and greatest theft of citizens homes in the history of the United States.

It’s quite incredulous how the 11th Circuit selects a Sanctioned Fl. Republican Lawyer, a failed judicial candidate and one who is facing foreclosure, for this ‘landmark’ published opinion in 2022.

Panel Author, Judge Bert Jordan, joined by Judge Brasher with a dissenting opinion by Judge Babs Lagoa

11th Circuit revives FDCPA lawsuit over mortgage statement language

How Westlaw is Summarizing the Latest Eleventh Circuit Opinion

(May 26, 2022)

Resolving an issue of first impression, a divided federal appeals panel has held that mortgage servicers can be liable under the Fair Debt Collection Practices Act for inaccuracies in monthly mortgage statements that contain additional debt-collection language.

Daniels v. Select Portfolio Servicing Inc., No. 19-10204, (11th Cir. May 24, 2022).

In a 2-1 decision, the 11th U.S. Circuit Court of Appeals on May 24 reinstated Constance Daniels’ lawsuit against Select Portfolio Servicing Inc., in which she alleges the company used faulty mortgage statements to try to collect payments she did not owe.

Writing for the panel majority, U.S. Circuit Judge Adalberto J. Jordan acknowledged that Select Portfolio was required to issue the mortgage statements under the Truth in Lending Act, 15 U.S.C.A. § 1638.

However, the mortgage statements fell within the scope of the FDCPA’s prohibition on false or misleading representations, 15 U.S.C.A. § 1692e, because they included additional debt-collection language — “this is an attempt to collect a debt” — the opinion said.

Judge Jordan reasoned that “in determining whether a communication is in connection with the collection of a debt, what could be more relevant than a statement in the communication than ‘this is an attempt to collect a debt’?”

U.S. Circuit Judge Barbara Lagao dissented, saying the majority treated the language like “magic words” that could convert an otherwise routine mortgage statement into a communication covered by the FDCPA.

Judge Lagoa also argued that the decision created a circuit split, although the panel majority insisted that the facts of Daniels’ case distinguished it from others in which federal circuit courts seemed to reach a contrary result.

District Court tosses FDCPA claims

Daniels sued Select Portfolio in the U.S. District Court for the Middle District of Florida in July 2018.

According to the suit, Daniels had prevailed in a state court foreclosure action brought by lender Wells Fargo in 2015, with the judge sanctioning Wells Fargo and enforcing an earlier loan modification agreement between the parties.

But Daniels’ mortgage servicer, Select Portfolio, later issued several monthly mortgage statements misstating the principal balance and amount due, and falsely claiming that her loan was in arrears, the suit says.

At least three of the mortgage statements included the sentence, “This is an attempt to collect a debt,” according to the suit.
Daniels accuses Select Portfolio of using false or misleading representations in connection with the collection of a debt, in violation of the FDCA and the Florida Consumer Collection Practices Act, Fla. Stat. Ann. § 559.72.

Select Portfolio moved to dismiss, saying Daniels was attempting hold it liable for issuing mortgage statements that are required under the Truth in Lending Act.

U.S. District Judge James S. Moody Jr. agreed and dismissed the suit in December 2018. Daniels v. Select Portfolio Servs. Inc., No. 18-cv-1652, (M.D. Fla. Dec. 18, 2018).

Judge Moody said that any discrepancies in language between Select Portfolio’s monthly statements and what is required under TILA “do not take the statements out of the realm of a monthly mortgage statement and into the realm of debt collection communications.”

On appeal, Daniels argued that compliance with TILA does not make a mortgage servicer immune from suit under the FDCPA and, even if it did, the monthly statements at issue included language beyond what is necessary under TILA.

Kaelyn S. Diamond and Michael A. Ziegler of the Law Office of Michael A. Ziegler represented Daniels.

Benjamin B. Brown and Joseph T. Kohn of Quarles & Brady LLP represented Select Portfolio.

By Dave Embree

YOUR DONATION(S) WILL HELP US:

• Continue to provide this website, content, resources, community and help center for free to the many homeowners, residents, Texans and as we’ve expanded, people nationwide who need access without a paywall or subscription.

• Help us promote our campaign through marketing, pr, advertising and reaching out to government, law firms and anyone that will listen and can assist.

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



Continue Reading

Appellate Circuit

Deutsche Bank and Nationstar Watch as 11th Circuit Discharge the Shotgun Despite Hunt’s Pleadings

There can be no doubt that this is a frivolous appeal and we would not hesitate to order sanctions if appellant had been represented by counsel.

Published

on

Hunt v. Nationstar Mortg., No. 21-10398

(11th Cir. May 27, 2022)

MAY 27, 2022 | REPUBLISHED BY LIT: MAY 30, 2022

Before ROSENBAUM, GRANT, and MARCUS, Circuit Judges. PER CURIAM:

Christopher M. Hunt, Sr., proceeding pro se, appeals following the district court’s dismissal of his civil complaint arising out of his 2006 purchase of residential property located in Atlanta, Georgia (the “Property”).

Hunt purchased the Property using proceeds from a loan that he eventually defaulted on, which prompted Nationstar Mortgage, LLC (“Nationstar”), then servicer of the loan, to seek a non-judicial foreclosure on the Property.

After filing or being named in a variety of related lawsuits,1 Hunt filed the instant pro se complaint in Georgia state court in June 2020 and named as defendants Nationstar, the Deutsche Bank National Trust

1 See, g., Hunt v. Nationstar Mortg., LLC, 684 F. App’x 938 (11th Cir. 2017) (unpublished) (“Hunt I”);

[MARCUS, ROSENBAUM AND ANDERSON]

Hunt v. Nationstar Mortg., LLC, 779 F. App’x 669 (11th Cir. 2019) (unpublished);

[PRYOR,W., GRANT AND ANDERSON]

Hunt v. Nationstar Mortg., LLC, 782 F. App’x 762 (11th Cir. 2019) (unpublished);

[PRYOR,W., GRANT AND ANDERSON]

Deutsche Bank Tr. Co. Am., as Tr. for Fifteen Piedmont Ctr. v. Hunt, 783 F. App’x 998 (11th Cir. 2019) (unpublished).

[TJOFLAT, JORDAN AND NEWSOM]

Companies (“Deutsche Bank”), and Jay Bray, the CEO of Nationstar.

He alleged that they had committed, inter alia, mortgage fraud and wrongful foreclosure in violation of federal laws, including the Sarbanes-Oxley Act and the Dodd-Frank Act.2

The district court denied a variety of preliminary motions filed by Hunt;

dismissed, without prejudice, the complaint as to defendant Bray for failure to effect proper service;

and

dismissed, with prejudice, the complaint as to Deutsche Bank and Nationstar, because it was a “shotgun” pleading, was barred by res judicata, and failed to state a claim upon which relief could be granted.3

After thorough review, we affirm.

I.

Whether a court has subject-matter jurisdiction, including removal jurisdiction, is a question of law that we review de novo.

See McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1241 (11th Cir. 2013).

We also review de novo a denial of a motion to

2 Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (hereinafter “Sarbanes-Oxley Act”), and the Dodd-Frank Wall Street Reform and Con- sumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010) (hereinafter “Dodd-Frank Act”).

3 Hunt also named Christian Sewing, the Chief Executive Officer (“CEO”) of Deutsche Bank, as a defendant, but he later voluntarily dismissed him.

And after filing the complaint, Hunt sought to add yet another defendant, the Albertelli Law Firm (“Albertelli Law”).

Bray, Sewing and Albertelli Law have not filed any briefs on appeal.

remand to state court. Conn.

State Dental Ass’n v. Anthem Health Plans, 591 F.3d 1337, 1343 (11th Cir. 2009).

A district court’s decision regarding the indispensability of a party is reviewed for abuse of discretion.

United States v. Rigel Ships Agencies, Inc., 432 F.3d 1282, 1291 (11th Cir. 2005).

We will disturb a district court’s refusal to change venue only for a clear abuse of discretion.

Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 255 (11th Cir. 1996).

We also review the district court’s denial of a motion for recusal for abuse of discretion.

Jenkins v. Anton, 922 F.3d 1257, 1271 (11th Cir. 2019).

We review a district court’s grant of a motion to dismiss for insufficient service of process, under Rule 12(b)(5), by applying a de novo standard to questions of law, and a clear error standard to the court’s findings of fact.

Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).

But when a party fails to object to a magistrate judge’s findings or recommendations in a report and recommendation, he “waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions.” 11th Cir. R. 3-1.

Under the circumstances, we review a claim on appeal only “for plain error,” if “necessary in the interests of justice.” Id.

We review the dismissal of a “shotgun” pleading under Rule 8 for abuse of discretion.

Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1294 (11th Cir. 2018).

When appropriate, we will review a district court’s dismissal for failure to state a claim under Rule 12(b)(6) de novo.

Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1056–57 (11th Cir. 2007).

We will also review a dismissal

based on res judicata de novo.

Jang v. United Techs. Corp., 206 F.3d 1147, 1149 (11th Cir. 2000).

We review de novo a district court’s conclusions on collateral estoppel, but review its legal conclusion that an issue was actually litigated in a prior action for clear error.

Richardson v. Miller, 101 F.3d 665, 667–68 (11th Cir. 1996).

While pro se pleadings are liberally construed, issues not briefed on appeal are normally forfeited and we will generally not consider them.

Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

An appellant can abandon a claim by:

(1) making only passing reference to it;

(2) raising it in a perfunctory manner without supporting arguments and authority;

(3) referring to it only in the “statement of the case” or “summary of the argument”;

or

(4) referring to the issue as mere background to the appellant’s main arguments.

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681– 82 (11th Cir. 2014).

In addition, if a district court’s order rested on two or more independent, alternative grounds, the appellant must challenge all of the grounds to succeed on appeal.

See id. at 680.

When an appellant fails to challenge on appeal one of the grounds on which the district court based its judgment, he is deemed to have abandoned any challenge of that ground, and it follows that the judgment is due to be affirmed.

See id.

II.

Liberally construed, Hunt’s brief on appeal seeks to challenge the district court’s decisions:

(1) denying remand of his case to state court

and

denying his request to file an amended complaint adding another defendant, Albertelli Law;

(2) denying his request

to transfer the case;

(3) denying his request to disqualify the judge;

(4) dismissing, without prejudice, his complaint as to defendant Bray for failure to effect proper service;

and

(5) dismissing his complaint, with prejudice, as to Deutsche Bank and Nationstar.

To be sure, Hunt’s arguments about these decisions by the district court are not clearly stated.

But even if we were to assume that he has preserved his arguments on appeal, they fail on the merits.

First, we are unpersuaded by Hunt’s arguments that the district court should have allowed him to file an amended complaint to add another party to the suit, which would have deprived the federal court of jurisdiction, and should have remanded the case to state court.

Federal courts have diversity-of-citizenship jurisdiction when the parties are citizens of different states and the amount in controversy exceeds $75,000.

28 U.S.C. § 1332(a)(1).

A corporation is a citizen of every state where it was incorporated and the one state in which it has its principal place of business.

Daimler AG v. Bauman, 571 U.S. 117, 133, 137 (2014); 28 U.S.C. § 1332(c)(1).

A defendant may remove any civil action brought in a state court to a federal district court that has original jurisdiction over the action.

28 U.S.C. § 1441(a).

The removing party bears the burden of proving that removal jurisdiction exists.

McGee, 719 F.3d at 1241.

Here, the district court did not err in denying Hunt’s motion to remand. As we’ve held in a previous appeal, his motion was based on his belated and fraudulent attempts to join Albertelli Law, in an effort to defeat the district court’s diversity jurisdiction.

See Hunt I, 684 F. App’x. at 942-44.

However, Hunt asserted federal

claims in his complaint, so the district court had jurisdiction in any event.

28 U.S.C. § 1441(a).

Accordingly, the district court correctly denied Hunt’s requests to remand the case and acted within its discretion to deny joinder.

Rigel Ships Agencies, Inc., 432 F.3d at 1291.

We also find no merit to Hunt’s claims that the district court should have transferred venue of his lawsuit.

A district court may transfer a civil action to any other district or division where it may have been brought “for the convenience of the parties and witnesses, and in the interest of justice.”

Robinson, 74 F.3d at 260 (quoting 28 U.S.C. § 1404(a)).

But in this case, the district court did not err because Hunt did not provide any cognizable reason for a transfer.

It appears that Hunt’s transfer request was based on his belief that case law in the United States District Court for the Middle District of Georgia would be more favorable to him – which is not a legitimate reason for transfer.

See 28 U.S.C. § 1404(a).

Similarly, we reject Hunt’s argument that the district court judge should have recused himself.

A judge must sua sponte recuse himself “in any proceeding in which his impartiality might reasonably be questioned” or “

[w]here he has a personal bias or prejudice concerning a party.”

28 U.S.C. § 455(a), (b)(1).

“The test is whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality.”

Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988).

“Ordinarily, a judge’s rulings in the same or a related case may not serve as

the basis for a recusal motion.”

McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir. 1990).

“The judge’s bias must be personal and extrajudicial; it must derive from something other than that which the judge learned by participating in the case.”

Id.

“The exception to this rule is when a judge’s remarks in a judicial context demonstrate such pervasive bias and prejudice that it constitutes bias against a party. Mere friction . . . however, is not enough to demonstrate pervasive bias.”

Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1329 (11th Cir. 2002) (quotation marks omitted).

As the record before us makes clear, no “objective, disinterested, lay observer fully informed of the facts underlying” these circumstances “would entertain a significant doubt about the judge’s impartiality.”

Parker, 855 F.2d at 1524.

Accordingly, the district court did not abuse its discretion in denying Hunt’s request for recusal or disqualification.

Nor do we find any merit to Hunt’s argument that the district court erred in dismissing the complaint against defendant Bray for lack of proper service.

When a federal court is considering the sufficiency of process after removal, it does so by looking to the state law governing process.

See Usatorres v. Marina Mercante Nicaraguenses, S.A., 768 F.2d 1285, 1286 n.1 (11th Cir. 1985).

Georgia law provides that service made “outside the state” of Georgia is to be done “in the same manner as service is made within the state.”

O.C.G.A. § 9-10-94.

Under Georgia law, service on natural persons is to be made “personally, or by leaving copies thereof at the defendant’s dwelling house or usual place of abode with some

person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized . . . to receive service of process.”

O.C.G.A. § 9-11-4(e)(7).

Notably, Hunt does not dispute these proposed findings set forth by the magistrate judge’s Report and Recommendation (“R&R”), that Hunt:

(1) mailed service to Bray;

and

(2) completed “corporate service” on Deutsche Bank, which Hunt asserted was also effective to serve Bray.

11th Cir. R. 3-1.

But, as the district court determined, Georgia law applied here and required personal service in these circumstances.

Albra, 490 F.3d at 829; O.C.G.A. § 9-11-4(e)(7).

Bray therefore was not properly served under Georgia law, and, for that reason, the district court did not err in dis- missing Hunt’s suit without prejudice as to Bray.

Finally, we find no error in the district court’s denial of injunctive relief and its dismissal of Hunt’s complaint against the two remaining defendants, Nationstar and Deutsche Bank.

A district court has the inherent authority to control its docket and ensure the prompt resolution of lawsuits, which includes the ability to dismiss a complaint on “shotgun” pleading grounds.

Shabanets, 878 F.3d at 1295.

We have described four types of “shotgun” com- plaints:

(1) those containing multiple counts where each count adopts all allegations of all preceding counts;

(2) those replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action;

(3) those that do not separate each cause of action or claim for relief into different counts;

and

(4) those asserting multiple claims against multiple defendants without

specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against.

Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1321–23 (11th Cir. 2015).

“Shotgun” pleadings violate Rule 8, which requires “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), by failing to, in one degree or another, give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.

Shabanets, 878 F.3d at 1294–96.

We generally require district courts to allow a litigant at least one chance to remedy any deficiencies before dismissing the complaint with prejudice, where a more carefully drafted complaint might state a claim.

See id.; Silberman v. Miami Dade Transit, 927 F.3d 1123, 1132 (11th Cir. 2019).

But it need not grant leave to amend the complaint when further amendment would be futile.

Silberman, 927 F.3d at 1133.

Under federal law, res judicata, or claim preclusion, bars a subsequent action if

“(1) the prior decision was rendered by a court of competent jurisdiction;

(2) there was a final judgment on the merits;

(3) the parties were identical in both suits;

and

(4) the prior and present causes of action are the same.”

Jang, 206 F.3d at 1148– 49 & n.1 (quotation marks omitted).

We have held that “if a case arises out of the same nucleus of operative facts, or is based upon the same factual predicate, as a former action, the two cases are really the same ‘claim’ or ‘cause of action’ for purposes of res judicata.”

Baloco v. Drummond Co., Inc., 767 F.3d 1229, 1247 (11th

Cir. 2014) (quotation marks omitted and alterations adopted).

“In addition, res judicata applies not only to the precise legal theory presented in the prior case, but to all legal theories and claims arising out of the nucleus of operative fact” that could have been raised in the prior case.

Id. (quotation marks omitted and alterations adopted).

Collateral estoppel, or issue preclusion, “refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided.”

Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984).

Thus, “collateral estoppel is appropriate only when the identical issue has been fully litigated in a prior case.”

In re McWhorter, 887 F.2d 1564, 1567 (11th Cir. 1989) (quotation marks omitted).

“The party seeking to invoke collateral estoppel bears the burden of proving that the necessary elements have been satisfied.”

Id. at 1566.

“[C]hanges in the law after a final judgment [generally] do not prevent the application of res judicata and collateral estoppel, even though the grounds on which the decision was based [may be] subsequently overruled.”

Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499, 1503 (11th Cir. 1984).

To safeguard investors in public companies and restore trust in the financial markets, Congress enacted the Sarbanes-Oxley Act of 2002, 116 Stat. 745.

See S. Rep. No. 107-146, pp. 2–11 (2002).

The Act contains several provisions, including a whistleblower protection provision which prohibits a publicly traded company or its officers from discharging an “employee” for providing information to a supervisory authority about conduct that the employee

“reasonably believes” constitutes a violation of federal laws against mail fraud, wire fraud, bank fraud, securities fraud, any SEC rule or regulation, or any provision of federal law relating to fraud against shareholders.

See 18 U.S.C. § 1514A(a)(1).

The Dodd-Frank Act whistleblower provision provides protection to individuals who provide “information relating to a violation of the securities laws to the” Securities and Exchange Commission (“SEC”).

15 U.S.C. § 78u-6(a)(6).

Thus, “[t]o sue under Dodd-Frank’s anti-retaliation provision, a person must first provide information relating to a violation of the securities laws to the [SEC].”

Dig. Realty Trust, Inc. v. Somers, 138 S. Ct. 767, 772–73 (2018) (quotation marks omitted and alterations adopted).

In his brief on appeal, Hunt does not expressly address the lower court’s “shotgun” pleading determination, and, as a result, the district court’s dismissal of the complaint is due to be affirmed.

Sapuppo, 739 F.3d at 681–82.

But in any event, the district court did not err in finding that his complaint was a “shotgun” pleading.

As the record reflects, the complaint consisted of three numbered paragraphs that spanned paragraphs and pages; failed to isolate claims by defendants;

and largely failed to discuss any facts — thereby falling into several of our identified categories of prohibited “shotgun” pleadings.

Weiland, 792 F.3d at 1321-23.

The district court also was correct that amendment would have been futile.

For one, res judicata and collateral estoppel barred Hunt’s claims for breach of contract and fraud, since Hunt sued the same parties for the same alleged breach of contract and fraud in several prior cases.

See, e.g., Hunt I, 684 F. App’x at 944.4

These decisions were final judgments and were “rendered by a court of competent jurisdiction,” “on the merits,” against the same parties, and “the prior and present causes of action [were] the same.”

Jang, 206 F.3d at 1149.

Moreover, even if some of Hunt’s claims had not been explicitly presented in any of his prior cases, they would still be barred by res judicata because every claim arose from the same facts as each of his prior cases, and he could have raised them in any of the prior proceedings.

Baloco, 767 F.3d at 1247.

Also, despite Hunt’s arguments, there have been no “changes in the law” that would “prevent the application of res judicata and collateral estoppel” in this case.

Precision Air Parts, 736 F.2d at 1503.

In addition, Hunt’s claims under the Sarbanes-Oxley Act and Dodd-Frank Act were futile because they fail to state a claim upon which relief could be granted.

As the record reflects, Hunt did not allege that he was an “employee” under the Sarbanes-Oxley Act, nor that he “provide[d] information relating to a violation of the securities laws to the [SEC]” as required under the Dodd-Frank Act.

4 To the extent that Hunt challenges the district court’s decisions under Fed. R. Civ. P. 60(b), we conclude that he has not identified any “extraordinary circumstances” entitling him to relief, and the district court did not abuse its discretion in this respect.

Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1316 (11th Cir. 2000) (quotation marks omitted).

Somers, 138 S. Ct. at 772–74.

Accordingly, Hunt did not state a cause of action under these statutes, and we affirm.

AFFIRMED.5

5 All of Hunt’s pending motions, which he filed after we imposed a filing restriction on him, are DENIED to the extent they request any relief.

For their part, Nationstar and Deutsche Bank have filed renewed motions for sanctions, requesting monetary sanctions against Hunt for his numerous motions before this Court under 11th Cir. R. 27-4.

Hunt is pro se and we DENY the motions for sanctions at this time.

See Woods v. I.R.S., 3 F.3d 403, 404 (11th Cir. 1993)

(“There can be no doubt that this is a frivolous appeal and we would not hesitate to order sanctions if appellant had been represented by counsel. However, since this suit was filed pro se, we conclude that sanctions would be inappropriate.”).

Although we are reluctant to impose sanctions on pro se appellants, we warn Hunt that our Court has imposed sanctions in circumstances like these, even for pro se litigants, and he is strongly cautioned against bringing any further frivolous motions or claims.

See Ricket v. United States, 773 F.2d 1214, 1216 (11th Cir. 1985)

(imposing sanctions on a pro se appellant who had been warned by the district court that the issues on appeal were frivolous).

YOUR DONATION(S) WILL HELP US:

• Continue to provide this website, content, resources, community and help center for free to the many homeowners, residents, Texans and as we’ve expanded, people nationwide who need access without a paywall or subscription.

• Help us promote our campaign through marketing, pr, advertising and reaching out to government, law firms and anyone that will listen and can assist.

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



Continue Reading

Bankers

When the World’s Bankers and Governments Are Behavin’ Like Thieves and Criminals, It Really Is Time to Object, Vociferously

The appalling greed and corruption is playing out live since 2008 and without any accountability to the people. One Percenters are completely immune and laughing At You.

Published

on

Ukrainian who made appearance in Trump impeachment saga accused by U.S. of stealing, laundering billions

AUG 6, 2020 | REPUBLISHED BY LIT: MAY 17, 2022

The Justice Department on Thursday accused a Ukrainian oligarch who has been considered an ally of Ukraine’s president of stealing billions of dollars from a bank he once owned, then using a vast array of companies to launder that money in the United States and all over the world.

In a civil forfeiture complaint seeking to seize commercial properties in Kentucky and Texas, the Justice Department alleged that Ihor Kolomoisky and his business partner, Gennadiy Boholiubov, stole so much from PrivatBank that Ukraine’s national bank had to give the institution a $5.5 billion bailout “to stave off economic crisis for the whole country.”

Kolomoisky, one of Ukraine’s richest men, has ties to Ukrainian President Volodymyr Zelensky, and he played a role in the events that led to President Trump’s impeachment last year. He made a fortune in the rough-and-tumble capitalism that swept Ukraine after the Soviet Union’s collapse, amassing assets including airlines and financial institutions, and created a larger-than-life image for himself, going by the nickname “Benya,” and keeping a shark aquarium in his office.

Kolomoisky and Boholiubov were the two major owners of PrivatBank before it was nationalized in response to the fraud, the Justice Department said, and the men basically used it as a personal account to build a business empire in the United States. They requested money from PrivatBank — which they always received because they were owners — then moved the funds through a network of companies to “thoroughly disguise their nature, source, ownership, and control,” the Justice Department alleged.

Experts have expressed increasing concern that U.S. real estate — including factories and facilities important to American industry — has become a magnet for foreign money, including proceeds of criminal activities abroad. Among Kolomoisky’s and Boholiubov’s purchases were more than 5 million square feet of commercial real estate in Ohio; steel plants in Kentucky, West Virginia and Michigan; a cellphone manufacturing plant in Illinois; and commercial real estate in Texas, the Justice Department alleged. The forfeiture complaints sought to seize a roughly 19.5-acre office park in Dallas and the PNC Plaza building in Louisville.

Michael J. Sullivan, a lawyer for Kolomoisky, said in an email: “Mr. Kolomoisky emphatically denies the allegations in the complaints filed by the Department of Justice.” The allegations, which are not criminal charges, are similar to those in a lawsuit filed by the bank in a Delaware court. A lawyer for Boholiubov did not reply to an email seeking comment.

In a statement written in Russian, Kolomoisky said all the money used to purchase the U.S. properties was his own, received through a deal made with a mining company in 2007 and 2008 and from other businesses that banked with Privatbank.

Kolomoisky also has long been facing a criminal probe by the U.S. attorney’s office in Cleveland for possible money laundering. As a part of that case, the FBI raided the office of Optima Management Group in downtown Cleveland on Tuesday, as well as an Optima office in the Southeast Financial Center building in Miami.

In court documents, the Justice Department alleged Thursday that two Miami-based business associates of Kolomoisky and Boholiubov’s — Mordechai Korf and Uriel Laber — helped acquire and manage the oligarchs’ holdings in the United States, which often bear some version of the name “Optima.” Optima Ventures at one point became the “largest holder of commercial real estate in Cleveland,” using stolen funds to buy major downtown office buildings and a hotel, the Justice Department alleged.

Last year, Marc Kasowitz, a New York lawyer who also represents Trump, signed on to represent Kolomoisky and Boholiubov in the Delaware case. He did not immediately respond to a request for comment Thursday.

Under Ukraine’s last president, Petro Poroshenko, the government nationalized Privatbank, alleging that Kolomoisky and one of his business partners had defrauded the bank of billions of dollars. Kolomoisky denied those charges but decamped from Kyiv to Israel, where he also holds citizenship. He retained political power in Ukraine through his business holdings, which include a major Ukrainian television station.

Kolomoisky is seen as an ally to Zelensky, who was an actor before his election, starring in a comedy show that aired on Kolomoisky’s network. Zelensky’s election was widely seen as a boon for Kolomoisky, particularly after the new president made Kolomoisky’s personal lawyer the head of his administration. Some in the United States were suspicious of Zelensky’s ties to the mogul, thinking the connection ran counter to Zelensky’s promises to pursue an anti-corruption and reformist agenda.

Since then, however, Zelensky has not supported returning control of Privatbank to the oligarch, and he fired that top aide. Still, Kolomoisky has been comfortable enough with Ukraine’s current leadership that he returned from a self-imposed exile in Tel Aviv and is again based in Kyiv, where he maintains connections to members of the presidential administration.

In spring 2019, when Trump’s personal attorney Rudolph W. Giuliani embarked on a mission to press Zelensky to assist Trump by opening politically charged investigations into former vice president Joe Biden and his son, Giuliani’s associates met with Kolomoisky to request that Giuliani get a sit-down with the rising Ukrainian politician.

Giuliani associates Lev Parnas and Igor Fruman met with Kolomoisky in April 2019 in Tel Aviv, and, by all accounts, the meeting did not go well.

Giuliani associates claimed to have sway with both foreign billionaires and Trump administration officials

After the meeting, the two ­Florida-based business executives accused Kolomoisky of physically threatening them and filed a lawsuit against him in Ukraine. Parnas and Fruman, who assisted Giuliani in his Ukraine project, were charged in the United States with campaign finance violations last year. They have denied any wrongdoing.

Giuliani has said he provided legal advice to Parnas and Fruman in their fight against Kolomoisky. He also tweeted repeatedly about his displeasure with Kolomoisky in May 2019 just as he was pressuring Zelensky to assist Trump with a Biden investigation. At one point, Giuliani complained that Zelensky was being advised by “Kolomoisky’s representatives and enemies of President Trump.”

Meanwhile, a lawyer for Kolomoisky has told The Post that during the Tel Aviv meeting, Parnas and Fruman claimed that they could get top U.S. officials, including Vice President Pence and then-Energy Secretary Rick Perry, to travel to Ukraine around the time of Zelensky’s May 2019 inauguration — if Kolomoisky paid them several hundred thousand dollars. Kolomoisky did not pay the money, instead throwing the two men out of his office, his lawyer has said.

The attorney, Bruce Marks, told The Post that Kolomoisky had predicted to friends at the time: “This is going to end up in a bad scandal.”

Ukraine arrests ex-PrivatBank official as U.S. prioritizes criminal probe of former owners

FEB 26, 2021 | REPUBLISHED BY LIT: MAY 17, 2022

The National Anticorruption Bureau of Ukraine (NABU) has arrested the former deputy chairman of a Ukrainian bank at the heart of an FBI criminal investigation as he attempted to fly abroad in the latest sign Kyiv is taking steps to tackle corruption and lawlessness.

Volodymyr Yatsenko was detained at Boryspil Airport in Kyiv on February 22 after investigators forced the pilot of the private jet he was traveling on to land, the bureau announced in a tweet.

Mr. Yatsenko, who was on his way to Vienna after reportedly being tipped off about his arrest, was charged with the embezzlement of funds at PrivatBank, once the nation’s largest lender.

More arrests of management could follow, the Kyiv Post reported.

The FBI is investigating the two owners of PrivatBank – Ihor Kolomoisky and Gennadiy Boholiubov – in connection with accusations that more than $5 billion was stolen from the lender through fraudulent loans and that the money was then laundered.

In a move that made international headlines, Ukraine was forced to nationalize PrivatBank in 2016 and pump more than $5 billion into the lender in order to stave off its bankruptcy.

The U.S. accuses Messrs. Kolomoisky and Boholiubov of using some of the laundered proceeds to buy assets in the U. S., ranging from metals companies to commercial properties, with the help of two American associates based in Miami.

The Justice Department last year filed three civil forfeiture lawsuits in a Florida court against a U.S. real estate holding controlled by the two tycoons and run by the associates.

However, a judge agreed last week with a Justice Department request to temporarily suspend the civil forfeiture proceedings amid concerns it could harm the criminal investigation against the Ukrainian businessmen and their two American partners.

“Allowing [the tycoons] to conduct discovery would expose the identities of witnesses who have provided and will provide information and testimony in both the civil forfeiture actions and the criminal investigation,” the Justice Department said in its February 19 filing.

“If that occurs, the confidential informants may cease providing information, and, to the extent they are not reachable through process in the United States, they may make themselves unavailable for future testimony. Potential sources of information who have not yet been interviewed by the government would likely be deterred from coming forward” the Justice Department said in its filing.

The tycoons deny the accusations and neither Ukraine nor the United States has filed criminal charges against them.

Mr. Kolomoisky is one of the most influential tycoons in Ukraine and the U.S. government’s investigation into his activities is being closely followed.

The billionaire owns key media, energy, and metals assets and is believed to have outsized influence over the administration of President Volodymyr Zelenskyy.

Mr. Kolomoisky’s TV stations backed Mr. Zelenskyy’s successful presidential bid.

The U.S., one of Ukraine’s biggest backers financially and militarily, has repeatedly expressed concern about oligarchic influence over the nation’s government and economy.

Washington has also complained about the lack of investigations into corrupt tycoons and officials and has tied some aid to improvements in judicial reform.

The arrest of Mr. Yatsenko, who was flying on a private plane owned by Mr. Kolomoisky, is the latest in a series of moves by Kyiv to tackle cases that resonate with the U.S.

Mr. Zelenskyy last week approved sanctions on Viktor Medvedchuk, a tycoon and lawmaker with close ties to Russian President Vladimir Putin. Mr. Medvedchuk was sanctioned by the U.S. in 2014 for undermining democracy in Ukraine.

On February 2, Mr. Zelenskyy sanctioned three television stations believed to be owned by Mr. Medvedchuk. In late January he announced an investigation into Ukrainian individuals accused of interfering in the 2020 U.S. presidential elections.

The moves come after President Joe Biden was inaugurated on January 20. Mr. Biden knows Ukraine well, having served as the point man to Kyiv while serving as vice president from 2009 to 2017.

Political analysts say Mr. Zelenskyy is seeking to win over the Biden administration after a difficult relationship with the Trump administration caused by the 2019 impeachment investigation.

YOUR DONATION(S) WILL HELP US:

• Continue to provide this website, content, resources, community and help center for free to the many homeowners, residents, Texans and as we’ve expanded, people nationwide who need access without a paywall or subscription.

• Help us promote our campaign through marketing, pr, advertising and reaching out to government, law firms and anyone that will listen and can assist.

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



Continue Reading

Most Read