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Florida Attorney Filing Lawsuits Against Deutsche Bank is Facing Sanctions for Telling the Truth, Repeatedly

The Straw Man, Deutsche Bank National Trust Co., the name used to illegally and unlawfully steal homesteads from American homeowners, is seeking sanctions from Lee Segal, a Florida attorney who obtained $30m or so in default judgments against Deutsche Bank. We’re smiling.

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LIT COMMENTARY

Update: Sep 18, 2021

Deutsche Bank is seeking $45,000 in attorney fees as well as other “just and proper” financial penalties from Lee Segal of Segal & Schuh Law Group for multiple filings. Segal is fighting the bid, saying it was filed too late as the case has been dismissed. After our last update on May 6th, 2021, the sanctions has slowly progressed as you can see from the docket, with the last recorded entry on August 6, Doc. 55.

Depoalo v. Deutsche Bank , Case No: 2:21-cv-38-SPC-NPM (M.D. Fla. Mar. 1, 2021)

MAR 1, 2021 | REPUBLISHED BY LIT: MAY 6, 2021

OPINION AND ORDER1

Before the Court is Defendant Deutsche Bank National Trust Company’s Amended Motion to Quash Service of Process and Vacate Clerk’s Default (Doc. 13), Plaintiff Darleen Depoalo’s Motion for Remand (Doc. 21), and Depoalo’s Motion to Strike Untimely Hearsay Declaration and/or for Leave to Reply (Doc. 26).

For the following reasons, the Court grants the motion to quash, denies the motion to remand, and denies the motion to strike.

1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide, nor does it have any agreements with them. The Court is also not responsible for a hyperlink’s availability and functionality, and a failed hyperlink does not affect this Order.

PROCEDURAL BACKGROUND

This is one of over 25 virtually identical complaints filed across Florida against Deutsche Bank National Trust Company (“DBNTC”) by a cadre of attorneys associated with Attorney Lee Segal.2 (Doc. 14).3

In short, the plaintiffs in these lawsuits allege DBNTC’s prosecution of foreclosure actions were “fraudulent, illegal, and perjurious” and rendered the rulings void. (Doc. 3 at 4).

2 Mr. Segal signed his filings in federal court as Lior Segal, but as Lee Segal in state court. Mr. Segal’s Florida Bar registration information lists his name as Lee Segal, as does his admission to the Middle District of Florida.

3 This may be a significant under-estimation, as recent filings reference over 50 virtually identical cases. (See Case No. 2:21-cv-42-SPC-NPM, Doc. 27).

JUDGE CHAPPELL

First, the plaintiffs allege DBNTC never legally owned the mortgages it sought to foreclose. (Id. at 4-5).

LIT COMMENT: ABSOLUTELY CORRECT.

Second, the plaintiffs allege that the beneficiaries of the trust holding the mortgages never authorized the foreclosure suits. (Id. at 5).

LIT COMMENT: ABSOLUTELY CORRECT.

Third, the plaintiffs allege DBNTC’s trust license had been revoked so it was illegal for it to act as a trustee to the pooled mortgages.(Id.)

LIT COMMENT: ABSOLUTELY CORRECT.

Thus, the plaintiffs allege, DBNTC engaged in a series of frauds in attempting to collect an unlawful debt, including recording a lis pendens, in violation of Florida’s Civil Remedies for Criminal Practices Act, Fla. Stat. § 772.101, et seq.

LIT COMMENT: ABSOLUTELY CORRECT, NATIONWIDE, NOT JUST FL.

The complaints in each case are fundamentally identical except for the quintessential variables of the plaintiff and property. But these facts are virtually irrelevant to the legal claims as currently pled.

Indeed, the allegations as to the supposed fraudulent behavior in each of the underlying foreclosure actions is generalized and not case specific.

Tellingly threading these complaints together, all but one of the complaints before the undersigned, including those ostensibly filed by attorneys other than Mr. Segal like this one, have the same transposition typos citing non-existent Fla. Stat.§ 772.013(1)–(4) and § 772.014, instead of correct citations to Fla. Stat. § 772.103(1)–(4) and § 772.104. (See Doc. 3 at 11).4

LIT COMMENT: WHAT? LIKE DEUTSCHE BANK, A STRAW MAN, USED BY ROGUE FORECLOSURE MILL LAWYERS, FILED HUNDREDS OF THOUSANDS OF UNLAWFUL COMPLAINTS WITH ROBO-SIGNED, FAKE DOCS – AND WHEREIN NOTHING HAPPENED…TOO BIG TO FAIL, TOO BIG TO JAIL.

But the complaints themselves are not the only similarity linking these cases. Foreclosure actions necessarily take place in the county where the mortgaged property is located.

Nearly every lawsuit filed by Mr. Segal and his colleagues, however, contain the same procedural oddity: they were filed in a separate county from the underlying foreclosure action.

Here, for example, Depoalo’s property is in Palm Harbor, Pinellas County, Florida. Depoalo brought this fraud action related to the Pinellas County foreclosure not in Pinellas County, however, but half a state away in rural Hendry County, Florida.

4 The undersigned has nine cases involving these claims against either DBNTC or the Bank of New York Mellon: 2:21-cv-9-SPC-NPM, 2:21-cv-37-SPC-NPM, 2:21-cv-38-SPC-NPM, 2:21- cv-39-SPC-NPM, 2:21-cv-40-SPC-NPM, 2:21-cv-42-SPC-NPM, 2:21-cv-47-SPC-NPM, 2:21-cv-66-SPC-NPM, and 2:21-cv-80-SPC-NPM. Seven have transposition errors as to § 772.103. Eight have transposition errors as to § 772.104. The only complaint that contains multiple counts, Case 2:21-cv-47-SPC-NPM, is not internally consistent as to its transposition errors, with Count 1 citing § 772.103 and § 772.104, Count 2 citing § 772.013 and § 772.014, and Count 3 citing § 772.103 and § 772.014. Only one case, 2:21-cv-80-SPC-NPM, appears to correctly cite the statutes invoked.

Another pronounced procedural oddity linking these lawsuits is this matter before the Court: service of process. Depoalo sued in Hendry County 20th Judicial Circuit Court on November 17, 2020. Depoalo served her complaint and summons on “CT CORP” at 28 Liberty Street in New York on November 18, 2020. (Doc. 13-1). The process server, Michael Levey, included on the affidavit of service:

Per Jacquelin Walton at the security desk, the respondent Deutsche Bank of 60 Wall Street NY NY has directions to continue to serve process at CT Corp 28 Liberty Street NY NY 10005 as no one currently is present in the building who is authorized to accept legal papers. As of 11/12/20 she does not know when this method will revert to the original service address.

(Id.) On November 20, 2020, CT Corporation System (“CT”) sent a letter to Depoalo’s counsel, Megan Lazenby, indicating that CT was not the registered agent of DBNTC and would be unable to forward the complaint and summons purportedly served by Levey. (Doc. 13-2 at 3).5

Depoalo sought summary judgment after default. (See Doc 1-2 at 27). DBNTC appeared on or about January 7, 2021, (Doc. 21 at 4; Doc. 1-2 at 4), then removed the matter to federal court based on diversity jurisdiction on January 14, 2021, (Doc. 1).

5 CT had sent Ms. Lazenby at least four other letters in November and December 2020 indicating the same—that CT is not the registered agent for DBNTC and could not accept service on its behalf. (Doc. 13-4).

FL. ATTORNEY LEE SEGAL

MOTION TO REMAND

Multiple motions are before the Court, but Depoalo’s motion to remand must be addressed first given it implicates the Court’s jurisdiction. See Univ. of S. Alabama v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999) (“[A] federal court must remand for lack of subject matter jurisdiction notwithstanding the presence of other motions pending before the court.”).

Depoalo argues that DBNTC’s notice of removal was untimely because her complaint was served on November 18, 2020, but removal was not effected until January 14, 2021, well beyond the 30-day time limit.

DBNTC responds that removal was timely because the complaint has never been properly served and notice of removal was filed shortly after DBNTC first learned of this case.

A notice of removal “shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b)(1).

A “defendant’s time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, ‘through service or otherwise,’ after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service.”

Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347- 48 (1999).

“Even where a defendant has actual notice of the filing of a suit, service of process is ineffective where it does not comply with the rules of service.”

Hunt v. Nationstar Mortg., LLC, 782 F. App’x 762, 764 (11th Cir. 2019) (per curiam).

“In actions removed from state court, the sufficiency of service of process prior to removal is determined by the law of the state from which the action was removed.”

Rentz v. Swift Transp. Co., Inc., 185 F.R.D. 693, 696 (M.D. Ga. 1998); Usatorres v. Marina Mercante Nicaraguenses, S.A., 768 F.2d 1285, 1286 n.1 (11th Cir. 1985).

Here, the parties cannot reasonably dispute that DBNTC’s notice of removal was untimely if service was proper, and timely if service was improper.

Thus, resolution of the motion to remand turns entirely on resolution of DBNTC’s motion to quash.

MOTION TO QUASH

Florida law sets specific requirements for serving financial institutions. Fla. Stat. § 48.092.

Financial institutions may designate a registered agent for service of process within the state, but it is not required. Fla. Stat. § 655.0201(2).

If the financial institution has no registered agent, “service may be made to any officer, director, or business agent of the financial institution at its principal place of business or at any other branch, office, or place of business in the state.” Fla. Stat. § 655.0201(3)(a).

DBNTC is a national banking organization formed under the laws of the United States and is authorized by the United States Department of Treasury to transact in the business of banking and to act as a fiduciary. (Doc. 13-3).

DBNTC’s main office is in Los Angeles, California and its primary trust operations office is in Santa Ana, California. (Doc. 24-1 at 3; see Doc. 13-3).6 DBNTC does not have a branch, office, or place of business in Florida. (Doc. 24-1 at 3).

Like many Deutsche Bank-affiliated entities (see Doc. 22-1 at 1; Doc. 22-2 at 1), DBNTC maintained an office at 60 Wall Street to accept service at that address but has not done so since March 2020 due to the COVID-19 pandemic. (Doc. 24-1 at 4).

Since DBNTC has no registered agent, branch, office, or place of business in Florida, Depoalo must have served DBNTC in California to comply with Florida’s law of service. Depoalo asserts she first sought to serve Deutsche Bank at 60 Wall Street, New York, NY, but was instructed to serve CT at 28 Liberty Street, New York, NY.

This is where the defect in Depoalo’s service begins.

Depoalo equated DBNTC—Deutsche Bank National Trust Company— with Deutsche Bank.

Regardless of the connection between these two entities (see Doc. 12) (corporate disclosure statement), Depoalo has not proved that service upon some other Deutsche Bank entity effectuates valid service upon DBNTC.

See Amtrust N. Am. v. Sennebogen Maschinenfabrij GmbH, 2020 WL 5441407, at *11 (M.D. Fla. Aug. 25, 2020) (summons for lawsuit against German company Sennebogen GmbH served upon its American affiliate, Sennebogen LLC, was ineffectual), R&R adopted by 2020 WL 5423203, at *1 (M.D. Fla. Sept. 10, 2020).

Nor can Depoalo prove that attempted service upon Deutsche Bank’s purported agent, CT, renders valid service upon the separate and distinct entity of DBNTC.

Depoalo seeks to save her service defect by arguing about the pre- and post-COVID-19 service norms at 60 Wall Street. Levey is familiar with serving “various Deutsche Bank entities” at 60 Wall Street. (Doc. 22-1 at 1).

Before the COVID-19 pandemic, Levey and his agents would approach the security desk for service, then the security personnel would contact the appropriate Deutsche Bank employee who came to the lobby to accept service. (Id. at 2).

When the COVID-19 pandemic began, 60 Wall Street became vacant and, at some point, a paper sign was taped up that read:

“Please direct all service to: . . . CT Corporation System Registered Agent, 28 Liberty Street.” (Id. at 2, 6-9).

This paper sign was updated in early December 2020 to read:

“Please direct all Deutsche Bank service EXCEPT for service [on] Deutsche Bank National Trust Company to: . . . CT Corporation.” (Id. at 5, 10).

But this misses the mark.

Florida law requires service upon DBNTC in California.

That DBNTC accepted service at 60 Wall Street before March 2020 as a courtesy does not codify a change to statutes governing service. Moreover, DBNTC had not designated CT as its registered agent (Doc. 24-1 at 5), and, given the many identical lawsuits handled by Depoalo’s attorney and her colleagues, Depoalo had ample notice that CT was not a registered agent of DBNTC and could not accept service on its behalf. Service here was defective and must be quashed.

Florida’s service statutes are strictly enforced.

Shurman v. Atl. Mortg. & Inv. Corp., 795 So. 2d 952, 954 (Fla. 2001).

If a party fails to comply with Florida’s service requirements, subsequent judgments are voidable.

Floyd v. Fed. Nat’l Mortg. Ass’n, 704 So. 2d 1110, 1112 (Fla. Dist. Ct. App. 1998).

DBNTC was never served.

Instead, Depoalo served a purported agent of a non- party. This service is so defective that it amounted to no notice whatsoever to DBNTC of the proceedings.

The improper service necessitates a finding of good cause to void the default judgment.

Id.; Fed. R. Civ. P. 55(c) (permitting court to set aside entry of default for good cause).

The irony here is palpable:

Depoalo failed to appreciate the separate corporate identities of DBNTC and Deutsche Bank where her complaint asserts a blurring of mortgage owners and mortgage servicers caused her damages.

The continued, knowingly invalid service on non-party, non-agent CT of lawsuits against DBNTC followed by default judgments in state court…

…has the same stink of fraud-upon-the-court that the numerous plaintiffs allege was perpetrated upon them.

Depoalo will not be afforded a set of rules apart from DBNTC.

Because the Court finds service was defective here, it follows that DBNTC’s removal to federal court was timely. DBNTC learned of the lawsuit and promptly removed it within the 30-day time limit.

Depoalo’s motion to remand is denied.

MOTION TO STRIKE

Depoalo moves to strike the Declaration of Ronaldo Reyes (Doc. 24-1) as untimely. The declaration was attached to DBNTC’s response to Depoalo’s motion to remand.

Depoalo first argues the declaration should be stricken because it was not filed alongside DBNTC’s motion to quash. Depoalo’s argument lacks merit.

As discussed, the motion to remand and the motion to quash are intertwined and resolution of one requires consideration of the other. The Court will not strike an affidavit because it was filed with DBNTC’s memorandum opposing Depoalo’s motion to remand rather than with DBNTC’s motion to quash.

Depoalo then argues that the declaration contains hearsay because Reyes signed it and it was notarized in California where he works, rather than in New York where the service efforts took place.

Reyes’ declaration is signed in his capacity as Vice President of DBNTC and provides sufficient foundation for his knowledge of DBNTC’s operations.

Depoalo’s argument fails.

Finally, Depoalo asks for leave to respond should the Court deny her motion to strike. This request is denied.

Motion practice is not a barter system.

Depoalo’s strategic choice of responding to DBNTC’s motion to quash with her own motion to strike rather than submitting full substantive briefing is hers to make.

The deadline to respond has now passed.

The motion to strike contains ample argument responding to DBNTC’s motion to quash. The Court will not provide multiple opportunities to brief the same motion.

CONCLUSION

Service here was defective and DBNTC received no notice of the lawsuit.

As soon as DBNTC learned of the state court proceeding, it appeared and removed this matter to federal court.

That removal was timely and appropriate.

Until Depoalo serves DBNTC, the Court lacks jurisdiction over it.

The Court will allow 30 days for Depoalo to properly serve DBNTC.

Given the service irregularities in this lawsuit and the related lawsuits, if Depoalo fails to effectuate service, the Court will dismiss this matter with prejudice.

Accordingly, it is now ORDERED:

Defendant Deutsche Bank National Trust Company’s Motion to Quash Service of Process and Vacate Clerk’s Default (Doc. 13) is GRANTED.

Service is QUASHED and the default entered against Deutsche Bank National Trust Company in state court is VACATED.

Plaintiff Darleen Depoalo’s Motion for Remand (Doc. 21) is DENIED.

Plaintiff Darleen Depoalo’s Motion to Strike Untimely Hearsay Declaration and/or for Leave to Reply (Doc. 26) is DENIED.

LEE SEGAL TAKES ON DEUTSCHE BANK NATIONAL TRUST IN FEDERAL COURT

04/30/2021 2950 Summer Swan Land Trust v. Deutsche Bank National Trust Company
2:21-cv-00042-SPC-NPM
ORDERED: This action is DISMISSED with prejudice for failure to serve, failure to prosecute, and failure to comply with Court Orders. The Clerk is DIRECTED to enter judgment, terminate any pending motions or deadlines, and close the case. Signed
Judge Sheri Polster Chappell
04/30/2021 Quest Systems LLC v. Deutsche Bank National Trust Company
2:21-cv-00040-SPC-NPM
ORDERED: This action is DISMISSED with prejudice for failure to serve, failure to prosecute, and failure to comply with Court Orders. The Clerk is DIRECTED to enter judgment, terminate any pending motions or deadlines, and close the case. Signe
Judge Sheri Polster Chappell
04/30/2021 Weber v. Deutsche Bank National Trust Company
2:21-cv-00039-SPC-NPM
ORDERED: This action is DISMISSED with prejudice for failure to serve, failure to prosecute, and failure to comply with Court Orders. The Clerk is DIRECTED to enter judgment, terminate any pending motions or deadlines, and close the case. Signe
Judge Sheri Polster Chappell
04/30/2021 Market Tampa Investments, LLC v Deutsche Bank National Trust Company
2:21-cv-00037-SPC-NPM
ORDERED: This action is DISMISSED with prejudice for failure to serve, failure to prosecute, and failure to comply with Court Orders. The Clerk is DIRECTED to enter judgment, terminate any pending motions or deadlines, and close the case. Signed
Judge Sheri Polster Chappell
04/30/2021 Kenny v. Deutsche Bank National Trust Company
2:21-cv-00009-SPC-NPM
ORDERED: This action is DISMISSED with prejudice for failure to serve, failure to prosecute, and failure to comply with Court Orders. The Clerk is DIRECTED to enter judgment, terminate any pending motions or deadlines, and close the case. Signed

 

 

 

PLAINTIFF DEFENDANT COUNTY PLAINTIFF

ATTORNEY

AREIAS, EVA Deutsche Bank National Trust Company, As Trustee Alachua

01 2020 CA 002497

Segal, Lee
AREIAS, EVA Deutsche Bank National Trust Company, As Trustee Clay

2020-CA-000955

Lazenby, Megan
ABPAYMAR, LLC, As Trustee For The 30531 Midtown Court Land Trust Deutsche Bank National Trust Company, As Trustee, In Trust Registered Holders Of Long Beach Mortgage Loan Trust 2005-3, Asset- Backed Certificates, Series 2005-3 Baker

2020-CA-000115

Segal, Lee
ABPAYMAR LLC, As Trustee Deutsche Bank National Trust Company Clay

2020-CA-000695

Segal, Lee; Lazenby, Megan
ABPAYMAR LLC, As Trustee Deutsche Bank National Trust Company Pasco

2020-CA-1437ESB

Segal, Lee
DECOURSY, RICHARD Deutsche Bank National Trust Company, As Trustee USDC ND – Panama City Div. 5:21-cv-00014 Segal, Lee
DECOURSY, RICHARD Deutsche Bank National Trust Company, As Trustee For Residential Asset Securitization Trust Series 2003-A10, Mortgage Pass- Through Certificates Series 2003-AJ USDC MD – Ocala Div. 5:21-cv-00040 Segal, Lee
HAULSEE, MICHAEL AND MARCIA Deutsche Bank National Trust Company, As Trustee USDC ND – Pensacola Div. 3:21-cv-00077 Turner-Hahn, Carla; Wolf, Matthew

 

 

PLAINTIFF DEFENDANT COUNTY PLAINTIFF

ATTORNEY

HAULSEE, MICHAEL AND MARCIA Deutsche Bank Trust Company Americas, As Trustee For Residential Accredit Loans, Inc.

Mortgage Asset-Backed Pass-Through Certificates,

Series 2007-QS4

USDC MD – Tampa Div. 8:20-cv-02410

Dismissed

Segal, Lee
LOFGREN, ANNA Deutsche Bank National Trust Company, As Trustee For Wamu Mortgage Pass- Thru Certificates, Series 2006-Ar1 Trust And Deutsche Bank Trust Company Americas, F.K.A Banker Trust Company, As Trustee And Custodian For IXIS 2005-HE4 Bradford

04-2020-CA-000340

Segal, Lee
LOFGREN, ANNA Deutsche Bank National Trust Company, As Trustee Okeechobee 2020-CA-000212 Lazenby, Megan
BCP Management LLC, As Trustee For 11717 81st Place Land Trust Deutsche Bank National Trust Company, As Trustee For The Gsamp Trust 2005- HE3 Mortgage Pass-Through Certificates Series 2005-HE3 Brevard

05-2020-CA-047023

Segal, Lee
BCP Management, LLC, As Trustee For The 10611 Bamboo Road Land Trust Deutsche Bank National Trust Company, As Trustee For Harborview Mortgage Loan Trust 2006-8 USDC MD – Ocala Div. 5:21-CV-00071 Segal, Lee
BCP Management, LLC, As Trustee For 18522 Sunward Lake Land Trust Deutsche Bank National Trust Company, As Trustee For Morgan Stanley Home Equity Loan Trust Series 2006-3 USDC ND – Panama City Div. 5:21-cv-00017 Segal, Lee
JACARANDA, LLC, As Trustee For The Certificateholders Of The Brev 1144 Land Trust Deutsche Bank National Trust Company, As Trustee For Soundview Home Loan Trust 2004-1, Asset-Backed

Certificates Series 2004-1

Brevard

05-2020-CA-035223

Segal, Lee

 

PLAINTIFF DEFENDANT COUNTY PLAINTIFF

ATTORNEY

ZIFERRYN VENTURES LLC, As

Trustee Of The 8172 Via Rosa Land Trust

Deutsche Bank National Trust Company, As Indenture Trustee For Mortgage Trust 2005-2 Charlotte

2020-CA-000747

Dismissed

Lazenby, Megan; Segal, Lee
ZIFERRYN VENTURES LLC, As

Trustee Of The 8172 Via Rosa

Land Trust

Deutsche Bank National Trust Company As Indenture Clay

2020-CA-000929

Lazenby, Megan; Mausser, Gregory K.
YHT And Associates, Inc., As Trustee Under 20438 Homosassa Court I.V. Trust Dated January 17, 2012 Deutsche Bank National Trust Company, As Trustee On Behalf Of The Holders Of The Residential Accredit Loans, Inc., Mortgage-Asset- Backed Pass-Through Certificates, Series 2007-Qs3 USDC MD – Jacksonville Div. 3:21-cv-00050 Segal, Lee
KENNY, TAMMY Deutsche Bank National Trust Company, As Trustee Of Argent Mortgage Securities, Inc., Asset- Backed Pass Through Certificates Series 2004- W11, Under The Pooling And Servicing Agreement Dated As Of October 1, 2004 Without Recourse USDC MD – Ft. Myers Div. 2:21-cv-00009 Segal, Lee
GEORGE WEBER, As Trustee Of The 12321 Adventure Drive Land Trust Dated 12/30/2011 Deutsche Bank National Trust Company, As Trustee For New Century Home Equity Loan Trust Series 2005-B, Asset-Backed Pass- Through Certificates USDC MD – Ft. Myers Div. 2:21-cv-00039 Segal, Lee
GEORGE WEBER, As Trustee Of The 12321 Adventure Drive Land Trust Dated 12/30/2011 Deutsche Bank National Trust Company, As Trustee For New Century Home Equity Loan Trust, Series 2005-B, Asset-Backed Pass- Through Certificates USDC ND – Gainesville Div. 1:21-cv-00015 Segal, Lee

 

 

PLAINTIFF DEFENDANT COUNTY PLAINTIFF

ATTORNEY

GEORGE WEBER, As Co-

Trustee Of The 10703 Beagle Run Place Land Trust, Dated 12/30/11

Deutsche Bank National Trust Company Lee

2020-CA-005336

Segal, Lee
GEORGE WEBER, As Co-

Trustee Of The 10703 Beagle Run Place Land Trust, Dated 12/30/11

Deutsche Bank National Trust Company USDC MD – Jacksonville Div. 3:21-cv-00102 Segal, Lee
INLAND ASSETS, LLC, As

Trustee For The 4417 Rudder Way Land Trust

Deutsche Bank National Trust Company, As Trustee For GSAMP Trust 2006-NC2,

Mortgage Pass-Through Certificates, Series 2006- NC2

USDC MD – Jacksonville Div. 3:21-cv-00040 Segal, Lee
INLAND ASSETS, LLC, As

Trustee For The 4417 Rudder Way

Deutsche Bank National Trust Company Pasco

2020-CA-001794

Segal, Lee
INLAND ASSETS, LLC, As

Trustee For 4462 Rudder Way Trust

Deutsche Bank National Trust Company Walton

2020-CA-000410

Lazenby, Megan; Wolf, Matthew
BLACKROCK ASSET MANAGEMENT, LLC As

Trustee For The 2950 Summer Swan Land Trust

Deutsche Bank National Trust Company, As Trustee For Indymac Indx Mortgage Loan Trust 2007-AR1, Mortgage Pass-Through Certificates Series 2007-AR1 USDC MD – Ft. Myers Div. MD 5:21-cv-00042 Segal, Lee
BLACKROCK ASSET MANAGEMENT, LLC, As

Trustee For RC Certificateholders Land Trust

Deutsche Bank National Trust Company Hillsborough 20-CA-009950 Wolf, Matthew
MARKET TAMPA INVESTMENTS, LLC Deutsche Bank National Trust Company, As Trustee For Novastar Mortgage Funding Trust, Series 2007 Novastar Home Equity Loan Asset-Back Certificates,

Series 2007

USDC MD – Ft. Myers Div. 2:21-cv-00037 Segal, Lee

 

PLAINTIFF DEFENDANT COUNTY PLAINTIFF

ATTORNEY

LP ASSETS, LLC, As Trustee Deutsche Bank National Trust Company Dixie

2020-CA-000035

Segal, Lee
LP ASSETS, LLC, As Trustee DEUTSCHE BANK NATIONAL TRUST COMPANY, As

Trustee For Financial Asset Securities Corp., Soundview Home Loan Trust 2007- WMC1, Asset-Backed Certificates, Series 2007- WMC1

Pinellas

19-008350-CI

Segal, Lee
LP ASSETS, LLC, As Trustee Deutsche Bank National Trust Company, As Trustee For Financial Asset Securities Corp., Soundview Home Loan Trust 2007- WMCI, Asset-Backed Certificates, Series 2007- WMC1 Pinellas

20-003799-CI

Segal, Lee
KEATHEL CHAUNCEY, ESQ. As

Trustee Only For The 1234 Holly Circle Land Trust

Deutsche Bank National Trust Company Escambia

2020-CA-001394

Segal, Lee
GINSBERG-KLEMMT, ERIKA Deutsche Bank National Trust Company, As Trustee For American Home Mortgage Assets Trust 2006- 5, Mortgage-Backed Pass- Through Certificates, Series 2006-5 USDC ND – Tallahassee Div. 4:21-cv-00041 Segal, Lee
GINSBERG-KLEMMT, ERIKA Deutsche Bank National Trust Company, As Trustee For American Home Mortgage Assets Trust 2006- 5, Mortgage-Backed Pass- Through Certificates, Series 2006-5 USDC SD – Key West Div. 4:21-cv-10010 Segal, Lee
COOK, WALLACE Deutsche Bank Trust Company Americas Glades

2020-CA-000084

Segal, Lee

 

PLAINTIFF DEFENDANT COUNTY PLAINTIFF

ATTORNEY

COOK, WALLACE Deutsche Bank National Trust Company, As Trustee Of Argent Securities Inc., Mortgage-Backed Pass- Through Certificates 2004- W1, Under The Pooling And Servicing Agreement Dated February 1, 2004, And Deutsche Bank Trust Company Americas, Formerly Known As Bankers Trust, As Trustee And Custodian Nassau

2020-CA-000270

Segal, Lee
COOK, WALLACE Deutsche Bank Trust Company Americas, As Trustee For Residential Accredit Loans, Inc., Mortgage Asset-Backed Pass-Through Certificates, Series 2004-QS4 Volusia 2020-11139 Segal, Lee
BONAFIDE PROPERTIES, LLC,

As Trustee For The Anderson Family Land Trust

Deutsche Bank National Trust Company Gulf

2020-CA-000131

Segal, Lee
DIGIOVANNI, LEONARDO Deutsche Bank National Trust Company F.K.A. Bankers Trust Company Of California, N.A., As Trustee Of The Vendee Mortgage Trust 1999-3, And Deutsche Bank National Trust Company, F.K.A. Bankers Trust Company Of California, N.A., As Trustee Of The Vendee Mortgage Trust 1999-2 Hardee

2020-CA-000292

Segal, Lee
FUBAR ASSETS, LLC, as Trustee For, 3417 70th Glen East Land Trust Deutsche Bank National Trust Company, As Trustee USDC – MD- Tampa Div. 8:20-cv-03090 Lazenby, Megan

 

 

PLAINTIFF DEFENDANT COUNTY PLAINTIFF

ATTORNEY

SHEN YI, LLC, A New Mexico Limited Liability Company, As Trustee Of The 1970 Hidden Lake Dr I.V. Trust Under Agreement Dated August 25, 2011 Deutsche Bank National Trust Company Hendry

2020-CA-000336

Segal, Lee
DEPOALO, DARLEEN Deutsche Bank National Trust Company, As Trustee Under The Pooling Abd Servicing Agreement Dated As Of April 1, 2006 Morgan Stanley Abs Capital 1 Trust 2006-NC3, Mortgage Pass- Through Certificates Series 2006-NC3 USDC MD – Ft. Myers Div. 2:21-cv-00038 Lazenby, Megan
FLORIDA LIMITED INVESTMENT PROPERTIES, INC. Deutsche Bank Trust Company Americas USDC SD – Ft. Pierce Div. 2:21-cv-014039 Segal, Lee
ABUNDANT LIFE HOMES, LLC Deutsche Bank National Trust Company, As Indenture Trustee For American Home Mortgage Investment Trust 2007-1 USDC ND – Tallahassee Div. 4:21-cv-00053 Lazenby, Megan; Wolf, Matthew
QUEST SYSTEMS, LLC, As

Trustee Of The 16347 Coco Hammock Land Trust Dated November 29, 2012

Deutsche Bank National Trust Company, As Trustee For American Home Mortgage Asset Tryst 2006- 2, Mortgage Pass-Through

Certificates, Series 2006-2

USDC MD – Ft. Myers Div. 2:21-cv-00040 Segal, Lee
QUEST SYSTEMS, LLC, A New

Mexico Limited Liability Company As Successor Trustee Under The 4787 Woodward Land Trust Dated October 22, 2012

Deutsche Bank National Trust Company, As Trustee For Long Beach Mortgage Loan Trust 2006-4 Sarasota

2020-CA-004318

Segal, Lee; Mausser, Gregory K.

 

PLAINTIFF DEFENDANT COUNTY PLAINTIFF

ATTORNEY

ZIFFERRYN VENTURES, LLC, As

Trustee For The 8172 Via Rosa Land Trust

Deutsche Bank National Trust Company Orange

2020-CA-003153

Segal, Lee
ZIFERRYN VENTURES, LLC, As

Trustee For The 12033 Gandy Blvd Unit 175 Trust

Deutsche Bank National Trust Company, As Trustee For Harborview Mortgage Loan Trust 2005-9 Mortgage Loan Pass-Through Certificates, Series 2005-9 Pinellas

19-000251-CI

Segal, Lee
ZIFERRYN VENTURES, LLC, As

Trustee For The 12033 Gandy Blvd Unit 175 Trust

Deutsche Bank National Trust Company, As Trustee For Harborview Mortgage Loan Trust 2005-9 Mortgage Loan Pass-Through Certificates, Series 2005-9 Pinellas

20-003796-CI

Segal, Lee
JEFFREY M. HAHN and CARLA TURNER HAHN Deutsche Bank National Trust Company, As Trustee For Gsaa Home Equity Trust 2006-10, Asset-Backed

Certificates, Series 2006-10

USDC MD – Tampa Div. 8:21-cv-00039 Segal, Lee; Lazenby, Megan
SHANNON, SEAN Deutsche Bank National Trust Company USDC MD – Orlando Div. 6:21-cv-00198 Segal, Lee
WILSON, ALBERT Deutsche Bank National Trust Company, As Trustee USDC SD – Ft. Pierce Div. 2:21-cv-14036 Segal, Lee

Before the Court is Plaintiff Tammy Kenny’s Amended Motion to consolidate (Doc. 33) and Defendant Deutsche Bank National Trust Company’s response in opposition (Doc. 36).

Kenny asks the Court to consolidate twenty-five similar cases with this one for the purpose of appealing an Order denying remand and quashing service.

Deutsche Bank opposes on many grounds.

To start, Kenny points to nothing suggesting a district court can decide to consolidate cases only for an interlocutory appeal.

Whether to consolidate cases on appeal is a matter handled by the appellate court.

And when cases are consolidated by a district court for all purposes, each case still maintains its separate identity—ending in a separate judgment and notice of appeal. Hall v. Hall, 138 S. Ct. 1118, 1131 (2018). So, the Court denies the request to consolidate.

Even if the Court could consolidate, it cannot do so with all these cases for a separate reason. This Court may consolidate certain cases before it. Fed. R. Civ. P. 42(a); Local Rule 1.07(b).

But Kenny does not seek to only consolidate the cases assigned to the Court.

Kenny wants to consolidate a list of cases assigned to other judges, including many from other Divisions and Districts. Yet the Court does not have the power to simply pluck cases away from other federal judges around Florida.

As Deutsche Bank notes, there is theoretically a process by which Kenny could try consolidating a bunch of cases across the State. But it is much more involved than this empty-handed request to a single judge. So the Motion is denied.

Relatedly, Kenny filed a Notice of Appeal (Doc. 35) yesterday.

There are several issues with this.

Without authorization, Kenny is trying to appeal a nonfinal interlocutory order (i.e., she’s trying to appeal an order that is currently unappealable).

Caterpillar Inc. v. Lewis, 519 U.S. 61, 74 (1996) (“An order denying a motion to remand, standing alone, is obviously not final and immediately appealable as of right.” (cleaned up));

Stelly v. Employers Nat’l Ins., 431 F.2d 1251, 1254 (5th Cir. 1970) (explaining an order quashing service is a nonfinal, interlocutory order if it not effectively dispositive).

What’s more, Kenny misfiled the Notice in CM/ECF as a mere case notice.

Until a notice of appeal is properly filed, the Eleventh Circuit will have no inkling of an attempted appeal and CM/ECF will not trigger its necessary functions to process an appeal.

Finally, Kenny failed to pay the filing fee. Leaving aside the substantive issue—certain dismissal of the appeal—the Court strikes the Notice because it was misfiled.

If Kenny would like to try appealing at this time, she must make any necessary filings.

Accordingly, it is now

ORDERED:

(1) Plaintiff’s Amended Motion to Consolidated [sic] Related Cases for Purpose of Appeal (Doc. 33) is DENIED.

(2) The Court STRIKES Plaintiff’s Notice of Appeal (Doc. 35).

If Plaintiff intends to pursue an appeal, she must make the appropriate filings.

DONE and ORDERED in Fort Myers, Florida on April 2, 2021.

/s/ _________
SHERI POLSTER CHAPPELL
UNITED STATES DISTRICT JUDGE

U.S. District Court
Middle District of Florida (Ft. Myers)
CIVIL DOCKET FOR CASE #: 2:21-cv-00066-NPM

Shen Yi, LLC v. Deutsche Bank National Trust Company
Assigned to: Magistrate Judge Nicholas P. Mizell
Demand: $859,000

Case in other court:  In the Circuit Court of the 20th Judicial Circuit, 2020-CA-000336

Cause: 18:1961 Racketeering (RICO) Act

Date Filed: 01/26/2021
Date Terminated: 04/07/2021
Jury Demand: Plaintiff
Nature of Suit: 470 Racketeer/Corrupt Organization
Jurisdiction: Diversity
Plaintiff
Shen Yi, LLC
a New Mexico Limited Liability Company, as Trustee of the 1970 Hidden Lake Dr I.V. Trust Under Agreement Dated August 25, 2011
represented by Lee Segal
Segal & Schuh Law Group, PL
18167 US Hwy 19 N Ste 100
Clearwater, FL 33764
727-824-5775
Fax: 888-672-7347
Email: lee@segalschuh.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
V.
Defendant
Deutsche Bank National Trust Company
as Trustee, in Trust for the Registered Holders of Morgan Stanley ABS Capital I Inc. Trust 2006-HE8, Mortgage Pass-Through Certificates, Series 2006-HE8
represented by Benjamin Bruce Brown
Quarles & Brady, LLP
Suite 300
1395 Panther Ln
Naples, FL 34109-7874
239/659-5026
Fax: 239/213-5426
Email: benjamin.brown@quarles.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDJoseph T. Kohn
Quarles & Brady, LLP
Suite 300
1395 Panther Ln
Naples, FL 34109-7874
239/262-5959
Fax: 239/213-5599
Email: joseph.kohn@quarles.com
ATTORNEY TO BE NOTICED
Interested Party
Lee Segal represented by Brett J. Preston
Hill Ward Henderson, PA
101 E Kennedy Blvd – Ste 3700
PO Box 2231
Tampa, FL 33602-5195
813/221-3900
Fax: 813/221-2900
Email: brett.preston@hwhlaw.com
TERMINATED: 05/27/2021
LEAD ATTORNEYLee Segal
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Interested Party
Segal & Schuh Law Group, P.L. represented by Brett J. Preston
(See above for address)
TERMINATED: 05/27/2021
LEAD ATTORNEYLee Segal
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

YOUR DONATION(S) WILL HELP US:

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



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 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
USA represented by I. 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 Daniels represented by Constance Daniels
PO Box 6219
Brandon, FL 33608
PRO SE

 

Date Filed # Docket Text
05/13/2011 1 COMPLAINT against Constance Daniels filed by USA. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Civil Cover Sheet)(MRH) (Entered: 05/13/2011)
05/13/2011 2 Summons issued as to Constance Daniels. (MRH) (Entered: 05/13/2011)
05/13/2011 3 ORDER 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)
05/13/2011 4 STANDING ORDER: Filing of documents that exceed twenty-five pages. Signed by Judge Elizabeth A. Kovachevich on 7/15/08. (MRH) (Entered: 05/13/2011)
05/19/2011 5 NOTICE of designation under Local Rule 3.05 – track 1 (CLM) (Entered: 05/19/2011)
05/20/2011 6 CERTIFICATE 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)
05/25/2011 7 CERTIFICATE OF SERVICE by USA (Notice of Designation Under Local Rule 3.05) (Gold, I.) (Entered: 05/25/2011)
07/06/2011 8 RETURN of service executed on 7/5/11 (Marshal 285) by USA as to Constance Daniels. (MRH) (Entered: 07/06/2011)
07/27/2011 9 MOTION 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)
07/27/2011 10 MOTION 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)
07/28/2011 11 CLERK’S ENTRY OF DEFAULT as to Constance Daniels. (MRH) (Entered: 07/28/2011)
07/29/2011 12 ANSWER to 1 Complaint by Constance Daniels.(BES) (Entered: 07/29/2011)
08/17/2011 13 MOTION for summary judgment by USA. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Gold, I.) (Entered: 08/17/2011)
09/09/2011 14 ENDORSED 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)
09/22/2011 15 ORDER 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)
10/12/2011 16 ABSTRACT 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.

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



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Appellate Circuit

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.

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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).

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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.

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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.

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