Federal Judges
Hirsch’s Notice of Removal to Federal Court Relies Upon Sovereign Citizen Status
Pro Se Debra Hirsch has removed the state case to federal court to circumvent the scheduled hearing regards a writ of possession of her residential homestead.
Hirsch v. 18th Judicial Circuit Court of Florida
(6:21-cv-01920)
District Court, M.D. Florida
NOV 16, 2021 | REPUBLISHED BY LIT: DEC 18, 2021
Update 10 Feb., 2022
ORDER (FEB 10, 2022)
THIS CAUSE is before the Court on Plaintiff’s Demand for Removal (“Demand,” Doc. 9), wherein Plaintiff requests that the Undersigned be removed from this case.
Under 28 U.S.C. § 144, a judge must recuse himself when a party “files a timely and sufficient affidavit that the judge . . . has a personal bias or prejudice either against him or in favor of any adverse party.”
However, to warrant recusal under this provision, “the moving party must allege facts that would convince a reasonable person that bias actually exists.”
Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000).
Similarly, under 28 U.S.C. § 455(a), a judge must “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
A judge “shall also disqualify himself . . .
The Court must determine “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).
Plaintiff’s Demand is based on her disagreement with the Undersigned’s issuance of orders “which were unsworn declarations.”
(Doc. 9 at 2).
The Demand also attaches, and thus seems to direct its objection to, the Undersigned’s Initial Order (“Order,” Doc. 4), requiring the parties to file a Disclosure Statement and Notice of Pendency of Other Actions in accordance with the Local Rules.1
Arguments for recusal under both §§ 144 and 455 should “be made on the basis of conduct extra-judicial in nature as distinguished from conduct within a judicial context.”
Davis v. Bd. Of Sch. Comm’rs of Mobile Cnty., 517 F.2d 1044, 1052 (5th Cir. 1975) (emphasis added).2
Because Plaintiff’s objection is based solely on the Undersigned’s issuance of the Order as “unsworn,” this contention is “completely judicial—as opposed to extra-judicial—in nature, and [is] therefore improper
1 This is the only order that has been issued thus far by the Undersigned in this case.
2 Cases decided by the Fifth Circuit prior to October 1, 1981, are binding on this Court.
See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).
grounds for recusal.”
DeBose v. Univ. of S. Fla. Bd. of Trustees, No. 8:15-cv-2787- EAK-AEP, 2018 WL 8919875, at *2 (M.D. Fla. Mar. 9, 2018) (emphasis in original); id.
(“Conduct is considered ‘extra-judicial’ when it occurs outside the present judicial proceedings.”
(citing Liteky v. United States, 510 U.S. 540, 555 (1994))).
Further, “expressions of impatience, dissatisfaction, annoyance, and even anger” with “[a] judge’s ordinary efforts at courtroom administration” are insufficient grounds for establishing bias or partiality.
Liteky, 510 U.S. at 555–56.
Because Plaintiff’s Demand challenges only the administration of the Undersigned’s orders within the judicial context, it is due to be dismissed.
In accordance with the foregoing, it is ORDERED and ADJUDGED that Plaintiff’s Demand for Removal (Doc. 9) is DENIED.
DONE and ORDERED in Orlando, Florida on February 10, 2022.
CARLOS E. MENDOZA
UNITED STATES DISTRICT JUDGE
Copies furnished to:
Counsel of Record Unrepresented Party
Update 24 Jan., 2022
Latest filing by pro se Hirsch is to strike bank’s filings.
LIF’s trackin’ this newly removed foreclosure case. Bookmark for updates as it happens.
A QUICK GUIDE TO SOVEREIGN CITIZENS
UNC School of Government
Revised November 2013
Note: Much of the information for this paper was provided by detectives Rob Finch and Kory Flowers of the Greensboro, NC, Police Department, Amy Funderburk of the NC Administrative Office of the Courts, and David Adinolfi of the NC Attorney General’s Office.
What is a sovereign citizen?
“Sovereign citizen” is a catchall phrase referring to a variety of anti-government individuals and groups who share some common beliefs and behaviors. The organizations to which many sovereign citizens belong have a variety of names: Moorish Nation, The Aware Group, Washitaw Nation, the North Carolina American Republic, Republic of United States of America, etc. The same views may be embraced by Freeman, Freemen on the Land, Sons of Liberty, and Aryan Nation. Many sovereign citizens may not affiliate with any of those groups. In one way or another, though, all sovereign citizens, whether tied to an organization or not, adhere to a view that the existing American governmental structure, including the courts and law enforcement, is illegitimate and that they, the sovereign citizens, retain an individual common law identity exempting them from the authority of those fraudulent government institutions.
Sovereign citizens may issue their own driver’s licenses and vehicle tags, create and file their own liens against government officials who cross them, question judges about the validity of their oaths, challenge the applicability of traffic laws to them and, in extreme cases, resort to violence to protect their imagined rights. They speak an odd quasi-legal language and believe that by not capitalizing names and by writing in red and using certain catch phrases they can avoid any liability in our judicial system. They even think they can lay claim to vast sums of money held by the United States Treasury, based on the premise that the government has secretly pledged them as security for the country’s debts. Based on these beliefs, and a twisted understanding of the Uniform Commercial Code, they try various schemes that they think discharge them from responsibility for their debts.
At their most harmless, sovereign citizens are cranks who talk what seems like gibberish to cops and magistrates and judges and then become law abiding when they face real legal trouble. At a different level, they may severely burden the courts and other government offices with the filing of hundreds and hundreds of pages of nonsensical documents. And at their very worst, they may resort to deadly force to defend their strange beliefs.
What they believe
Although the myriad sovereign citizen groups, and individuals not tied to a particular group, all have their own idiosyncrasies in their beliefs, they tend to share some common ideas. The first is that
there are two classes of citizens within the United States. One class is sovereign or “de jure” citizens or “original citizens of the states.” The second class, first created by the Fourteenth Amendment, is federal or U.S. citizens. Sovereign citizens enjoy all the rights of the constitution, but federal citizens do not. Federal citizens, the sovereigns believe, have bargained away their freedoms by accepting benefits from the United States government. Much of what sovereigns do is intended to rescind or denounce that federal citizenship and reclaim their common law sovereign citizen status with all its rights. That helps explain why they refuse to get drivers’ licenses or register vehicles, reject Social Security, avoid using ZIP codes, and may not pay taxes, because those are all forms of contracting with the government and accepting the lesser class of federal citizenship.
Reconstruction history is important to many sovereign citizens. Their view is that the governments established in southern states after the Civil War were imposed against the will of and without the consent of the citizens and are not lawful. These sovereigns distinguish between the original state, of which they are citizens, and the false and illegitimate state that occupies the same territory. And, as already mentioned, they view the Fourteenth Amendment as the source of the new separate class of federal citizenship.
A second significant tenet for sovereign citizens, blending with the distinction between sovereign and federal citizens, is that when the federal government abandoned the gold standard in the 1930s it substituted its citizens as collateral for the country’s debts by pledging each citizen’s future earnings to foreign investors. As with all other aspects of sovereign ideology, the details can vary considerably, but generally the explanation for how this happens is that a secret United States Treasury account is set up for each citizen at birth, some large sum of money placed in it or pledged to it, ranging from hundreds of thousands of dollars — $630,000 is a common number — to millions depending on which sovereign citizen group’s version you hear. As a consequence, they say, two separate identities are created. The corporate shell account, the one pledged as security, is the “strawman” to which sovereign citizens refer and, in their view, is separate and distinct from their true flesh and blood identity.
In sovereign citizens’ view, the government-controlled and enslaved strawman is evidenced by documents showing the person’s name in all capital letters. Birth certificates, social security cards, driver’s licenses, tax forms, etc., therefore, represent only the shell corporate identity, the strawman, because they are written in all caps.
A sovereign citizen avoids inadvertent subjection to this false government, and avoids being mistaken for a federal citizen, by signing documents in a certain manner — for example, by identifying oneself as “John Doe, Executive Trustee for the Private Contract Trust known as JOHN DOE.” Or by identifying oneself as executor for the strawman, or using a copyright symbol with the name, or saying “John Doe, Secured Party, Authorized Representative, Attorney-in-Fact in behalf of JOHN DOE ©,” or interspersing colons or hyphens or other odd punctuation in the name, or using the prefix “Noble” or the suffix “Bey” or “El Bey” with one’s name. And so on.
To further avoid inadvertent submission to the false government, the sovereign citizen may use red ink, add thumbprints to documents, put the zip code in brackets or say “near” as part of the address. There are innumerable varieties of this queer view of the law, but all are intended by the sovereign citizen to make sure you know you are no longer dealing with the enslaved strawman or a federal citizen with limited rights, you now have the real common law flesh and blood sovereign citizen in front of you.
Sovereign citizens’ views about the strawman and the treasury account also help explain their fascination with the Uniform Commercial Code. They tend to believe that by filing a UCC financing statement they can establish their superior right to that Treasury account. Having established such a right they then can create bonds which they tender to creditors as payment of their debts. As they read the UCC, if the creditor wrongly refuses to accept this tender the sovereign debtor is discharged from any responsibility. There are various other UCC schemes as well that involve security agreements, hold- harmless agreements, birth certificate bonds, and various UCC forms.
Again, the beliefs and practices can vary considerably from group to group and person to person, but once you are familiar with the ideas above you are more likely to realize you are dealing with a sovereign citizen. A sovereign citizen named Fred Jones may say “I am agent of Fred Jones” to inform you that he is not the corporate entity strawman FRED JONES and thus is beyond the court’s jurisdiction. Sovereign citizens may want to bring their own court reporters to court proceedings. There will be talk about common law, about Admiralty Law, and about oaths of office. A sovereign citizen may carry a copy of Black’s Law Dictionary as a reference resource for their common law views. For those who identify themselves as Moorish Nation or something similar, there also is belief that a 1787 treaty (fictitious) between the United States and Morocco grants them immunity from US law. Some may claim to occupy United Nations Indigenous People’s Seat 215 — there is no such thing — and create their own birth certificates and passports in addition to driver’s license and vehicle registrations.
Sovereign citizens tend to believe in squatters’ rights and have been known to move into houses that have been foreclosed and abandoned. They will fix up the place and have utilities turned on, then will file documents they believe confirm their new ownership of the property.
The point to remember is that, whatever circuitous and illogical route they take to get there — there is no point in trying to find a consistency or a rational pattern in the beliefs — sovereign citizens reject the current federal, state and local governments and consider themselves outside their authority. Ironically enough, at the same time they file paper after paper with the very courts whose legitimacy they deny, seeking to vindicate their common law rights.
North Carolina appellate cases
There are few state appellate court decisions debunking sovereign citizens’ arguments because sovereign citizens almost always represent themselves and either do not appeal the trial court decisions against them or are unable to perfect an appeal properly. Also, most of the arguments they make are so obviously frivolous that courts feel free to reject them without much explanation. There are, though, at least two North Carolina Court of Appeals’ opinions discussing and rejecting a sovereign citizen’s arguments about the trial court’s lack of jurisdiction over him. The opinions, both involving the same defendant, are State v. Phillips I, 149 N.C. App. 310 (2002), and State v. Phillips II, 152 N.C. App. 679 (2002). The first opinion includes the more detailed discussion of the defendant’s assertions about jurisdiction. For the most part the second opinion refers back to the first opinion. Then in Phillips v. Wood, 341 F.Supp.2d 576 (MDNC 2004), the federal district court rejected the same defendant’s attempts to sue the state judges and magistrate for their actions in connection with his state convictions.
Names of their organizations
Two of the most prevalent sovereign citizen groups in North Carolina are the Moorish Nation and the Washitaw Nation. Moorish Nation adherents may refer also to the Moorish Science Temple, Moorish Republic, United Nuwaubian Nation of Moors (NUNM), MU’UR Republic or other variations. Moorish sovereigns tend to be black and younger; many get started on this path in prison. The Washitaw Nation, a Moorish branch, is tied to a group in Poverty Point, Louisiana. White supremacist organizations such as the Aryan Nation may embrace sovereign citizen ideology as well. So too may Freemen and related groups.
Organizations such as the North-Carolina American Republic (in the Mooresville area), the Embassy of Heaven, Aware Group and Carolina Liberty also sometimes are listed as sovereign citizens, but at least some of them say they are different. The North-Carolina American Republic, for example, distinguishes itself as believing it is the real sovereign state of North Carolina, rejecting the notion of separate sovereign rights for individuals. Their particular fantasy is that the state government put in place by the Reconstruction Acts is invalid and that they have re-established the legitimate government of the state. Accordingly the North-Carolina American Republic has named its own governor, legislature, etc. It’s a different route than the one followed by sovereign citizens but leads to the same self-serving conclusion that the established state institutions do not have jurisdiction over them.
Not all sovereign citizens affiliate with any particular organization. Individuals may access sovereign citizen theory and documents easily through the internet. And not surprisingly there are any number of vendors of driver’s licenses, license tags, pleadings and other papers who are glad to sell their wares to anyone who sees in them a means to be free from traffic tickets, debts, taxes and other government obligations.
Identification
Sovereign citizens may drive vehicles — which they will call “conveyances” — with odd license tags and registration documents. The license tag might say “Republic of North Carolina” or something along those lines, or “Kingdom of Heaven” or “Washitaw Nation” or “Washitaw Trustee” or a variation on those or the other organizational names mentioned above. A common license tag and registration will say “MU’UR REPUBLIC” and have a United Nations symbol with the words “Indigenous National” or something similar. Also look for words like “Private Registrant.” Sovereign citizens also tend to put gold stickers on documents and use multiple notary stamps.
Sovereign citizens typically carry their own unique drivers’ licenses. Just as with the vehicle tags, the driver’s license may be issued in the name of the Washitaw Nation, North Carolina American Republic or whatever particular sect the person has chosen. Some groups issue what appears to be a passport from a foreign government, but on closer examination the issuer is the MU’UR Republic or ISIS- Abaannaki Aboriginal Nation or other make-believe government. One common factor in much sovereign citizen identification, particularly for blacks, is inclusion of “Bey” or “El Bey” in the person’s name, such as “John-Doe El Bey.”
In addition to this contrived identification the sovereign citizen may carry a legitimate state driver’s license. When stopped by an officer or otherwise asked by an official for identification, the person may produce the fictitious driver’s license first but then when backed into a corner will pull out a real license. Some sovereign citizens have gotten regular state drivers’ licenses issued to them with their El Bey name. They also may file a document with the register of deeds purporting to change their name to El Bey, believing that such a filing is all they need to do.
Some sovereign citizens will dress in what looks like a law enforcement uniform and will carry a badge identifying themselves as “county rangers.”
Buzzwords
Below are some unusual words or phrases or manner of punctuation or writing that are commonly used by sovereign citizens, reflecting their beliefs. Some of the words are legitimate legal terms in the proper context but are meaningless in the way they are used by sovereign citizens. For example, the Uniform Commercial Code (UCC) indeed exists and is important law for commercial transactions, but it has none of the purposes ascribed to it by sovereign citizens. It would take a long time to explain why sovereign citizens speak and write the way they do, or the meanings of these particular words; just be aware that the recurrence of these ways of communicating is one indicator that the person is a sovereign citizen.
Strawman Indigenous
De facto government Non-resident alien
Conveyance (rather than vehicle) Traveling in a private capacity
References to UCC Use of red ink
IRS Form 1099-OID Sui juris
Travelling in a commercial capacity Redemption
Aboriginal El Bey
Who is the victim? Where is your oath of office?
© after a person’s name Brackets around a zip code
“Employer ID Number” rather than SSN Domicile
Reference to HJR-192 Charge Back Notice
UN Indigenous People’s Seat 215 Debtor is transmitting utility
Use of “near” with zip code U.S. Minor, Outlying Islands
Special Trust Deposit In Admiralty
Dishonor in commerce Accepted for value
Thumbprints on documents Executor
Common law Final solution
Man on the land Free man
Referring to the government as a corporation Requesting an official’s bond Affidavit of truth Fiduciary
Judicial District of Tens Letters of Marque
Title 4 flag Sovereign Living Soul
UCC-1 Statement UCC-1-207
Silence is acquiescence State Citizen
Filings
Ironically, given their views on the illegitimacy of the government, sovereign citizens are prolific at filing papers with those same government offices. Clerks of courts and registers of deeds are the most frequent victims. Most of the papers sovereign citizens file seek relief from criminal charges or demand money, and many are designed to harass or intimidate public officials. A sampling of the kinds of documents clerks of court and registers of deeds might expect from sovereign citizens include:
• A notice of copyright as to the person’s name, often labeled “Common Law Copyright Notice.”
• “Registered Warrant Claim for Trust Special Deposit.”
• Filings responding to traffic tickets or other charges labeling those documents as “abandoned paperwork” and demanding that the court official respond with authentication of authority, a certified copy of the official’s oath, a certified copy of the officials “Bar Bond”, and so on.
• A response to a traffic ticket or other charge labeled as an “Affidavit of Specific Negative Averment, Opportunity to Cure, and Counterclaim.”
• “Negative averment” appears on various documents, with the idea that it puts the burden on the official to respond.
• “Notice of International Commercial Claim Within The Admiralty ab initio Administrative Remedy.”
• Notices of default and commercial liens and demands for payment.
• “Express Specific Reservations of Rights.”
• “Certification of Non-Response.”
• An invoice for an outrageous sum of money, in the millions or billions of dollars.
• “Non-Negotiable Declaration in the Form for Trust Affidavit in Commerce.”
• “Notice of Default for Notice and Demand for Full Disclosure.”
• “Affidavit of Citizenship and Domicile.”
• “Legal Notice: Right to Travel.”
• “Notice of Dishonor.”
• “Notice of Silver Surety Bond.”
• “Asseveration.”
• “Non-Statutory Abatement: Notice of Default, Default Judgment, and Praecipe.”
It is common for sovereign citizens to attempt to file their documents on legal-size paper.
Sovereign citizens also use a “Charge Back Notice” in response to bills. The message intended by the notice is that the bill will be paid by the United States Treasury from the sovereign citizen’s
strawman account. It is common for documents that sovereign citizens file and send to businesses, banks, and court officials to say, in effect, that the failure to deny or respond is deemed by the sovereign to be acceptance of their position.
Some of the most troublesome activities by sovereigns are their lawsuits and liens against public officials. Court can deal with frivolous lawsuits through Rule 11 sanctions, contempt and gatekeeper orders. A false liens can be more difficult to address because the official often does not know until much later that it has been filed and because filing offices generally are not charged with determining the legitimacy of a document before accepting it. To help address that problem the legislature in 2012 enacted a new statute, GS 14-118.6, making it a Class I felony to knowingly present for filing a false lien or encumbrance against the property of a public officer or employee based on that person’s performance of official duties. The statute subsequently has been amended to include false claim’s against an officials spouse or child as well. The statute also establishes a procedure for the Register of Deeds to reject such a filing and allows the public official to sue for treble damages under the unfair and deceptive trade practices law.
This paper may be used for educational purposes without permission. Use for commercial purposes or without acknowledgement is prohibited.
© 2012, 2013 School of Government, University of North Carolina at Chapel Hill.
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U.S. District Court
Middle District of Florida (Orlando)
CIVIL DOCKET FOR CASE #: 6:21-cv-01920-CEM-LRH
Create an Alert for This Case on RECAP
| Hirsch v. 18th Judicial Circuit Court of Florida Assigned to: Judge Carlos E. Mendoza Referred to: Magistrate Judge Leslie R. Hoffman
Cause: 28:1441 Notice of Removal |
Date Filed: 11/16/2021 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Federal Question |
| Plaintiff | ||
| Debra Annette Hirsch | represented by | Debra Annette Hirsch c/o 125 Macaw Lane Merritt Island, FL 32952 321-704-0606 PRO SE |
| V. | ||
| Defendant | ||
| 18th Judicial Circuit Court of Florida | ||
| Date Filed | # | Docket Text |
|---|---|---|
| 11/16/2021 | 1 |
MOTION for Change to Proper Venue by Debra Annette Hirsch. Filing fee $402; receipt number ORL101139. (Attachments: # 1 Exhibit A,B,C, # 2 Exhibit D,E,F, # 3 Exhibit G,H,I)(SPM) (Entered: 11/16/2021) |
| 11/19/2021 | 2 | Letter MOTION for Clarification re 1 MOTION for Change to Proper Venue by Debra Annette Hirsch. (SPM) (Entered: 11/23/2021) |
| 12/03/2021 | 3 | NOTICE to the Courts to take judicial notice regarding 1 MOTION to Change to Proper Venue by Debra Annette Hirsch. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(SPM) (Entered: 12/03/2021) |
| 12/13/2021 | 4 |
INITIAL ORDER re: Case Management and Deadlines. Signed by Judge Carlos E. Mendoza on 12/13/2021. (MEH) ctp (Entered: 12/13/2021) |
| 12/13/2021 | 5 | NOTICE TO COUNSEL AND PARTIES: Failure to comply with ANY Local Rules or Court Orders may result in the imposition of sanctions including, but not limited to, the dismissal of this action or entry of default without further notice. Signed by Judge Carlos E. Mendoza on 12/13/2021. (MEH) ctp (Entered: 12/13/2021) |
Appellate Judges
The Eleventh Circuit Issues Another Glossed Opinion to Dismiss a Pro Se Lawyer’s Appeal
All motions under Rule 60(b) OTHER THAN those based on Rule 60(b)(4) must be made within a reasonable time.
Henry v. City of Mount Dora, No. 21-14120 (11th Cir. Sep. 16, 2022)
REPUBLISHED BY LIT: SEP 17, 2022
Before LUCK, LAGOA, and ANDERSON, Circuit Judges. PER CURIAM:
Marie Henry, proceeding pro se, appeals the district court’s denial of her Federal Rule of Civil Procedure 60(b)(4), (d)(3) motion seeking relief from the court’s order dismissing her federal claims raised pursuant to several federal statutes, and remanding to state court her state law claims raised pursuant to Florida state law.
After filing an ethics complaint against one of the defendants and a pro se motion to disqualify a judge in a predatory lending case, Henry was referred to a Florida Bar grievance committee on two counts of misconduct and, after disciplinary proceedings that she challenged as defective, she was suspended for 6 months.
She originally filed her complaint in Florida state court, but the Florida Bar removed her case to the United States District Court for the Middle District of Florida.
On appeal, she argues, first, that the district court erred by denying her Rule 60 motion as untimely.
Second, she contends that the court abridged her due process right to an impartial tribunal, notice, and an opportunity to be heard by dismissing her federal claims where the defendants did not unanimously consent to removal, the court judicially noticed facts without a hearing, and the judge was a member of an adverse party.
Third, she asserts that the court erred by failing to analyze fraud on the court.
Finally, she argues that the court’s denial of an extension to file objections to a magistrate judge’s report and recommendation violated 28 U.S.C. § 2072.
I.
LIT OBJECTS TO THE PANEL SUMMARY, WHICH DOES NOT PROVIDE DATES FOR THE FLORIDA BAR SUSPENSION, WHICH WAS IN MARCH 2015 , AND GLOSSES OVER THE FACT IT TOOK THE BAR YEARS TO PROSECUTE AND REACH ITS FINAL DISPOSITION.
A Federal Notice of Appeal is Not Limited to 30 Days, that’s a Judicial Rule Subordinate to Statute https://t.co/gyXvQ7Ha1Z
— lawsinusa (@lawsinusa) September 17, 2022
We review de novo the denial of a motion to set aside a judg-ment for voidness under Rule 60(b)(4).
Stansell v. Revolutionary Armed Forces of Colom., 771 F.3d 713, 736 (11th Cir. 2014).
Motions pursuant to Rule 60(b)(4) are not subject to a reasonable timeliness requirement or a typical laches analysis.
Id. at 737-38.
But “Rule 60(b)(4) does not provide a license for litigants to sleep on their rights.”
United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 275 (2010).
When considering whether a movant slept on her rights, we have noted that subject matter jurisdiction cannot be waived and have addressed the merits of the movant’s jurisdictional argument.
See Stansell, 771 F.3d at 737
(holding that movant waived “his right to object to any defects in the service of process or to any denial of his right to be heard” because he “sat on his rights for nine months” but addressing alleged jurisdiction issues).
We may affirm for any reason supported by the record.
Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1088 n.21 (11th Cir. 2007).
Here, the district court applied a reasonable time requirement to Henry’s Rule 60(b)(4) motion, but that requirement was inappropriate.
See Stansell, 771 F.3d at 737.
However, Henry sat on her rights by waiting more than 2 years to file her Rule 60(b)(4) motion.
See id. at 737-38.
Thus, we affirm the district court as to any issues raised by Henry that do not relate to subject matter jurisdiction because she slept on her rights for over two years.
Bircoll, 480 F.3d at 1088 n.21.
Like in Stansell, however, we next consider Henry’s arguments that the district court lacked subject matter jurisdiction.
See Stansell, 771 F.3d at 737.
LIT DISAGREES WITH THE PANEL OPINION WHICH CONTRADICTS ITSELF AND THIS COURT’s OWN RULINGS TO RELY UPON A SCOTUS BANKRUPTCY CASE, WHICH IS INAPPOSITE TO THE FACTS HERE.
FURTHERMORE, THE CITE, WHEN READ FULLY, IS NOT ABOUT DELAY IN APPEALING AT ALL:
“United had actual notice of the filing of Espinosa’s plan, its contents, and the Bankruptcy Court’s subsequent confirmation of the plan. In addition, United filed a proof of claim regarding Espinosa’s student loan debt, thereby submitting itself to the Bankruptcy Court’s jurisdiction with respect to that claim…. United therefore forfeited its arguments regarding the validity of service or the adequacy of the Bankruptcy Court’s procedures by failing to raise a timely objection in that court.“
United Student Aid Funds v. Espinosa, 559 U.S. 260, 275 (2010)
—————
Before HULL, MARCUS and WILSON, Circuit Judges.:
“All motions under Rule 60(b) other than those based on Rule 60(b)(4) must be made within a reasonable time. See Fed. R. Civ. P. 60(c). ” Sec. & Exch. Comm’n v. J&J Mgmt. Consulting, No. 15-14628, at *4 (11th Cir. Oct. 3, 2016)
II.
Federal Rule of Civil Procedure 60(b)(4) provides relief from a final judgment or order if the judgment is void.
Fed. R. Civ. P. 60(b)(4).
A judgment is not void under Rule 60(b)(4) merely because it was erroneous.
Espinosa, 559 U.S. at 270.
Generally, it is void solely if it is premised on a jurisdictional error depriving the court of even arguable jurisdiction or on a due process violation that deprived a party of notice or the opportunity to be heard.
See id. at 271.
Federal courts always have jurisdiction to determine their own jurisdiction.
In re Nica Holdings, Inc., 810 F.3d 781, 789 (11th Cir. 2015).
The Rooker-Feldman1 doctrine is a narrow jurisdictional doctrine concerning a court’s subject matter jurisdiction that bars parties who lose a case in state court from appealing their loss in a federal district court.
Behr v. Campbell, 8 F.4th 1206, 1208 (11th Cir. 2021);
Alvarez v. Att’y Gen for Fla., 679 F.3d 1257, 1264 (11th Cir. 2012).
Neither res judicata nor the requirement that all defendants consent to removal is jurisdictional.
See Narey v. Dean, 32 F.3d 1521, 1524-25 (11th Cir. 1994);
In re Bethesda Mem’l Hosp., Inc., 123 F.3d 1407, 1410 n.2 (11th Cir. 1997).
An appellant abandons any argument not briefed before us, made in passing, or raised briefly without supporting arguments or authority.
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004);
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).
We can consider sua sponte an abandoned issue if a forfeiture exception applies and extraordinary circumstances warrant review.
United States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc), petition for cert. filed (U.S. May 17, 2022) (No. 21-1468).
Here, Henry was not entitled to relief pursuant to her Rule 60(b)(4) motion because she did not identify any jurisdictional defect depriving the district court of arguable jurisdiction.
See Espinosa, 559 U.S. at 271.
The requirement that all defendants consent to removal is not jurisdictional.
See In re Bethesda Mem’l Hosp., Inc., 123 F.3d at 1410 n.2.
Res judicata is not jurisdictional either.
Narey, 32 F.3d at 1524–25.
Moreover, to the extent Henry argues that the district court erred by concluding the Rooker-Feldman doctrine applied, that is an argument over which the court had jurisdiction because a court always has jurisdiction to determine its own jurisdiction.
See In re Nica Holdings, Inc., 810 F.3d at 789.
Moreover, Henry points to no error in the district court’s application of the doctrine, nor to any other possible jurisdictional problem that might have deprived the district court of arguable jurisdiction.
Thus, we affirm the district court’s denial of Henry’s Rule 60(b)(4) motion.
1 Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feld- man, 460 U.S. 462 (1983).
Hey Congress,
When y’all gonna pass the Judicial Transparency and Ethics Enhancement Act, to bring these Outlaws in Dirty Black Robes, called judges, back into line? Judges are replacing democracy with tyranny, and they have no respect for Congress. https://t.co/L5fbbwJz27 pic.twitter.com/WDFC3oFGN6
— lawsinusa (@lawsinusa) September 16, 2022
III.
We review a district court’s denial of a Rule 60(d)(3) motion for relief from a judgment due to the opposing party’s fraud on the court for abuse of discretion.
See Cox Nuclear Pharm., Inc. v. CTI, Inc., 478 F.3d 1303, 1314 (11th Cir. 2007) (Rule 60(b)(3) motion).
Rule 60 does not limit a court’s power to set aside a judgment for fraud on the court.
Fed. R. Civ. P 60(d)(3).
A movant must prove fraud on the court with clear and convincing evidence.
See Booker v. Dugger, 825 F.2d 281, 283-84 (11th Cir. 1987)
(appealing denial of Rule 60(b) motion after denial of § 2254 petition).
Fraud on the court is limited to exceptional conduct like bribery or evidence falsification involving an attorney.
Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978) (prior version of Rule 60).
We have held that, in independent actions challenging a judgment for fraud on the court, the alleged fraud must not have been raised in the original litigation, and it must not have been possible for the complaining party to raise the issue through reasonable diligence.
See Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1552 (11th Cir. 1985).
Here, the district court addressed fraud on the court, and it correctly found that Henry failed to show sufficiently egregious conduct.
The conduct Henry points to on appeal, even if true, does not fall within the category of egregious conduct that can constitute fraud on the court, but instead amounts to, at most, arguably erroneous legal arguments, or conduct that occurred before she filed her complaint, neither of which come close to the necessary showing of fraud on the court.
See Rozier, 573 F.2d at 1338.
Furthermore, she does not challenge any conduct that was not raised before her Rule 60 motion or that she could not have raised through reasonable diligence.
See Travelers Indem. Co., 761 F.2d at 1552;
Bircoll, 480 F.3d at 1088 n.21.
Thus, we affirm the denial of her Rule 60(d)(3) motion.
LIT OBJECTS TO THE PANEL SUMMARY, WHICH DOES NOT PROVIDE THE ‘CONDUCT’ AT ISSUE, AND BLANKS HENRY’S ARGUMENTS.
IV.
We review a district court’s denial of a motion for extension of time for abuse of discretion.
See Lizarazo v. Miami-Dade Corr. & Rehab. Dep’t, 878 F.3d 1008, 1010-11 (11th Cir. 2017)
(extension of time to file motion for substitution).
A request for an extension should be granted if good cause is shown. Fed. R. Civ. P. 6(b).
Here, Henry arguably has shown good cause for an extension in her motion for an extension to file objections to the magistrate judge’s report and recommendation concerning her Rule 60 motion because she asserted that she did not receive the report and recommendation until after the time for her to file objections had passed and she had been occupied caring for a family member.
We assume arguendo that she showed good cause for an extension.
However, the consequence for failing to object to the magistrate’s report and recommendation is waiver of the right to challenge those issues on appeal.
11th Cir. R. 3-1.
Because we have reviewed Henry’s arguments as if she had not waived them for failing to object, we affirm the denial of her motion for the reasons discussed above.
See R. 3-1; Fed. R. Civ. P. 6(b).
AFFIRMED.
LIT OBJECTS TO THE SCANT LEGAL ANALYSIS OF THE ‘CONSEQUENCE FOR FAILING TO OBJECT TO THE MAGISTRATE REPORT’.
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Federal Judges
Lawyer Calvin Curtis Stole Over $13M Sentenced to 8 Years in Jail. He Wants a Favor from The Florida Bar.
Attorney Calvin Carl Curtis submitted a request for disciplinary revocation, with the caveat he can reapply in 5 years.
LIF Commentary
“It is unbelievable and painful that Mr. Curtis continues to spend potential restitution to support a lavish lifestyle for his girlfriend in Orlando while his disabled victims are unable to pay rent on their mobile homes or afford basic necessities.
Apparently stealing more than $12,700,000 [corrected sum by LIF] isn’t shameful enough,”
said Kelly White, an attorney who is representing several of Curtis’ victims.
On May 24, Despicable Utah Attorney Calvin Carl Curtis, who is also a member of the Florida Bar, submitted a request for disciplinary revocation, with the caveat he can reapply in 5 years.
Salt Lake City Estate Planning Attorney Sentenced to 97 Months in Prison and Ordered to Pay over $12.7 Million Dollars to 26 Victims
MAY 6, 2022 | REPUBLISHED BY LIT: JUN 1, 2022
“FBI agents went to Curtis’ office late last month and found a $2,000 check for legal work he provided, according to the report.
Prosecutors also asked a judge to clarify that Curtis’ restriction on performing legal work is already in effect and he should cease any work as a lawyer.
Prosecutors asked a judge to require Curtis to get a full-time job immediately.”
SALT LAKE CITY – Attorney Calvin Curtis, 61, of Salt Lake City, was sentenced to serve 97 months in federal prison by a U.S. District Court Judge today. Curtis was ordered to pay $12,779,496 in restitution to the 26 victims of his crimes and sentenced to an additional three years of supervised release upon his release from federal prison.
Curtis previously pleaded guilty in November of 2021, to embezzling millions of dollars from clients of his estate planning law firm based in Salt Lake City, known as Calvin Curtis Attorney at Law PLLC, and Curtiselderlaw.com.
By the time of his sentencing, it had been discovered that Curtis had embezzled over $12 million dollars from his former clients who prosecutors say are elderly, incapacitated, or disabled individuals.
In the plea agreement, Curtis admitted that he is an attorney who specialized in special needs trusts and that beginning in January 2008, he began a fraudulent scheme to defraud a client known as “G.M.” out of money. Curtis admitted that due to his role, he had access to millions of dollars in two different trust accounts belonging to victim G.M., and that he transferred at least $9,500,000 intended for the care of G.M. into his own accounts, and then used this money for his own personal use. Curtis admitted that he also created fake financial statements and submitted these to the court ordered conservator of G.M. to conceal the fraud.
In pleading guilty to the wire fraud charge, Curtis admitted that on January 25, 2018, that he caused a wire communication from a Schwab Investment Account to his own Wells Fargo account, resulting in a transfer of $1,485,000.
Curtis admitted that he used the money for his own personal benefit to make mortgage payments on his combined home and office located on South Temple Street in Salt Lake City, Utah; to support a lavish lifestyle with frequent travel; to purchase tickets to basketball and football games; to give lavish gifts to others; and to support the operations of his law firm.
In pleading guilty to the money laundering count, Curtis admitted that he fraudulently caused $135,000 to be transferred online from G.M. to his own Wells Fargo account, and that he used these funds to wire $95,000 to The Fechtel Company for the remodel of his home in Tampa, Florida.
Curtis admitted that he knew these transactions were illegal at the time they occurred, and that the money was not used for the benefit of G.M.
Assistant United States Attorneys prosecuted the cases against Curtis and Special Agents from the FBI and IRS Criminal Investigation conducted the investigation.
Topic(s):
Financial Fraud
Component(s):
USAO – Utah
United States v. Curtis
(2:21-cr-00464)
District Court, D. Utah
NOV 8, 2021 | REPUBLISHED BY LIT: JUN 1, 2022
Curtis’ South Temple mansion has been sold to House of Hope, which provides services to women with substance abuse disorders.
1135 E South Temple Salt Lake City, UT 84102 (Office Property)
JUDGMENT as to Calvin Curtis (1), Count(s) 1, BOP 97 months.
36 months probation with standard and special conditions as stated on the record.
No fine.
SPA $200.
Restitution of $12,779,496.51 as stated on the record.
Forfeiture of real property located at 1135 East South Temple Street in Salt Lake City, Utah;
a money judgment equal to the value of any property, real or personal, constituting or derived from proceeds traceable to the scheme to defraud and not available for forfeiture as a result of any act or omission of the defendant(s) for one or more of the reasons listed in 21 U.S.C. 853(p);
substitute property as allowed by 28 U.S.C. 2461(c) and 21 U.S.C. 853(p);
funds in the amount of $384,919.04 seized from Wells Fargo Bank account ending in 3424;
jewelry purchased at Summit Diamond for $73,935.;
Count(s) 2, BOP 97 months.
36 months probation with standard and special conditions as stated on the record.
No fine. SPA $200.
Restitution of $12,779,496.51 as stated on the record.
Forfeiture of real property located at 1135 East South Temple Street in Salt Lake City, Utah;
a money judgment equal to the value of any property, real or personal, constituting or derived from proceeds traceable to the scheme to defraud and not available for forfeiture as a result of any act or omission of the defendant(s) for one or more of the reasons listed in 21 U.S.C. 853(p);
substitute property as allowed by 28 U.S.C. 2461(c) and 21 U.S.C. 853(p);
funds in the amount of $384,919.04 seized from Wells Fargo Bank account ending in 3424;
jewelry purchased at Summit Diamond for $73,935.
Defendant Termed.
Case Closed.
Signed by Judge David Barlow on 05/06/2022.(jl)
(Entered: 05/09/2022)
1305 Bayshore Blvd, Tampa, FL 33606
Sold for $1.75M in April 2021
Sold to Doctor Rose (Where'd the Dosh Go?)
Judge rejects plea deal for Utah attorney charged with embezzling millions
APR 19, 2022 | REPUBLISHED BY LIT: JUN 1, 2022
Judge David Barlow and Calvin Curtis
A prominent Salt Lake City attorney thought he would be spending just over six years in prison after embezzling more than $12 million from dozens of clients over a span of 13 years.
Instead, a federal judge refused to accept the 73-month plea deal — indicating the punishment was not harsh enough and that he doesn’t believe Calvin Curtis is fully remorseful.
Curtis was a special needs trust attorney, representing some of the most vulnerable clients in Utah — many of whom suffer from severe mental or physical disabilities.
Prior to the ruling, Curtis cried and apologized to the victims.
Cameras were not allowed in the courtroom.
Kris Sanford, who has been paralyzed since 2009, addressed Curtis directly during the hearing.
“Your moral compass is not there,”
Sanford said.
“It’s disgusting… I guess on the advice of my attorney, I’m going to stop there.”
Sanford, who said he “only” lost about $40,000, asked the judge to ignore the recommended 73-month sentence that prosecutors reached with Curtis.
Aaron Hall, who is legally blind, also asked the judge to ignore the plea deal. He said he lost about half a million dollars.
“This brought me almost to suicide,”
Hall said.
“He gave fraudulent accounts to family members who were questioning me and drove me to the point where I was questioning my own sanity and whether I did something wrong… It’s really embarrassing being a father not being able to take care of your children. Your children shouldn’t have to pay all your bills.”
Sherry McConkey was in court representing her mother-in-law. Glenn McConkey has severe Alzheimer’s and dementia.
In that case, Curtis admitted he stole approximately $12 million.
“I just kept on staring at him going, ‘Wow, how can you be so evil?’”
Sherry McConkey said.
“I don’t believe his apology, so therefore I don’t accept it.”
While addressing the court, Curtis agreed that his actions were “evil.”
He addressed some of the victims by name, referring to them as “dear friends” that he took advantage of.
“Unfortunately, most of everything they’ve said is true, and I’m very sorry about that,”
Curtis said.
“I accept responsibility. It’s my fault. I pray for them. I hope they pray for me.”
“If that man never speaks my name again, it would be too soon,”
Hall responded.
This article seems appropriate as we w8 for @TheFlaBar to drop the list for JUNE 1, which is not available at this time. https://t.co/HFVg2Z0Stj
— lawsinusa (@lawsinusa) June 1, 2022
Curtis withdrew his guilty plea after learning the judge found the plea deal “unreasonable.”
Some victims, like Matt Hess, said they were not sure how to feel, worried the case could now drag on or go to trial. Hess’ disabled daughter is one of the victims.
A prominent Salt Lake City attorney thought he would be spending just over six years in prison after embezzling more than $12 million from dozens of clients over a span of 13 years.
Instead, a federal judge refused to accept the 73-month plea deal — indicating the punishment was not harsh enough and that he doesn’t believe Calvin Curtis is fully remorseful.
Curtis was a special needs trust attorney, representing some of the most vulnerable clients in Utah — many of whom suffer from severe mental or physical disabilities.
Prior to the ruling, Curtis cried and apologized to the victims. Cameras were not allowed in the courtroom.
Kris Sanford, who has been paralyzed since 2009, addressed Curtis directly during the hearing.
“Your moral compass is not there,” Sanford said. “It’s disgusting… I guess on the advice of my attorney, I’m going to stop there.”
Sanford, who said he “only” lost about $40,000, asked the judge to ignore the recommended 73-month sentence that prosecutors reached with Curtis.
Aaron Hall, who is legally blind, also asked the judge to ignore the plea deal. He said he lost about half a million dollars.
“This brought me almost to suicide,” Hall said. “He gave fraudulent accounts to family members who were questioning me and drove me to the point where I was questioning my own sanity and whether I did something wrong… It’s really embarrassing being a father not being able to take care of your children. Your children shouldn’t have to pay all your bills.”
Sherry McConkey was in court representing her mother-in-law. Glenn McConkey has severe Alzheimer’s and dementia.
In that case, Curtis admitted he stole approximately $12 million.
“I just kept on staring at him going, ‘Wow, how can you be so evil?’” Sherry McConkey said. “I don’t believe his apology, so therefore I don’t accept it.”
While addressing the court, Curtis agreed that his actions were “evil.” He addressed some of the victims by name, referring to them as “dear friends” that he took advantage of.
“Unfortunately, most of everything they’ve said is true, and I’m very sorry about that,” Curtis said. “I accept responsibility. It’s my fault. I pray for them. I hope they pray for me.”
“If that man never speaks my name again, it would be too soon,” Hall responded.
Curtis withdrew his guilty plea after learning the judge found the plea deal “unreasonable.”
Some victims, like Matt Hess, said they were not sure how to feel, worried the case could now drag on or go to trial. Hess’ disabled daughter is one of the victims.
“It’s good and bad I guess,” Hess said. “It’s good in the sense that we might get something a little more out of this. He might get a few more years. I don’t think we’re going to find any more money.”
Judge David Barlow said he believed a more appropriate sentence would be somewhere between 8-10 years in prison, or 97 to 121 months.
He referred to Curtis’ actions as “unspeakable,” “calculated,” and “cold blooded.”
“It’s just about as terrible as a thing can be,” Barlow said. “So heinous and so devastating… Im not convinced he’s taken full accountability.”
Barlow gave credit to Curtis for cooperating with the investigation and forfeiting approximately $1.4 million. He said that he hopes both sides come together to reach a more reasonable plea deal in order to avoid trial.
The likelihood of the remaining $11 million being returned is “failingly small” if not “impossible.”
Utah attorney pleads guilty to embezzling $9.5M from his clients
Prosecutors had said Calvin Curtis used the money to fund a “lavish lifestyle.”
NOV 18, 2021 | REPUBLISHED BY LIT: JUN 1, 2022
SALT LAKE CITY – Attorney Calvin Curtis, 61, of Salt Lake City, pleaded guilty in federal court today to two counts involving wire fraud and money laundering for his role in embezzling at least $9.5 million dollars from clients of his estate planning law firm based in Salt Lake City, known as Calvin Curtis Attorney at Law PLLC, and Curtiselderlaw.com.
Prosecutors and defense attorneys have agreed to recommend a sentence of 73 months in federal prison during Curtis’s sentencing which is scheduled to occur on March 15, 2022.
In the plea agreement, Curtis admitted that he is an attorney who specializes in special needs trusts and that beginning in January 2008, he began a fraudulent scheme to defraud a client known as “G.M.” out of money.
Curtis admitted that due to his role, he had access to millions of dollars in two different trust accounts belonging to victim G.M. and that he transferred at least $9,500,000 intended for the care of G.M. into his own accounts and then used this money for his own personal use.
Curtis admitted that he also created fake financial statements and submitted these to the court ordered conservator of G.M. to conceal the fraud.
In pleading guilty to the wire fraud charge, Curtis admitted that on January 25, 2018, that he caused a wire communication from a Schwab Investment Account to his own Wells Fargo account, resulting in a transfer of $1,485,000.
Curtis admitted that he used the money for his own personal benefit to make mortgage payments on his combined home and office located on South Temple Street in Salt Lake City, Utah; to support a lavish lifestyle with frequent travel; to purchase tickets to basketball and football games; to give lavish gifts to others; and to support the operations of his law firm.
In pleading guilty to the money laundering count, Curtis admitted that he fraudulently caused $135,000 to be transferred online from G.M. to his own Wells Fargo account, and that he used these funds to wire $95,000 to The Fechtel Company for the remodel of his home in Tampa, Florida.
Curtis admitted that he knew these transactions were illegal at the time they occurred, and that the money was not used for the benefit of G.M
At this time, it is alleged that Curtis embezzled funds from at least 22 additional trusts in amounts more than $9,500,000.
Anyone who believes they may be a victim of this crime is encouraged to call the FBI at (801) 579-1400 to file a report.
“Defrauding vulnerable and elderly adults is a reprehensible and greedy act that is deserving of federal prison time,” said Acting United States Attorney Andrea T. Martinez. “The United States Attorney’s Office is committed to prosecuting and holding those accountable who defraud elderly and vulnerable clients. Our concern is with the victims of these crimes and their ability to obtain basic needs moving forward.”
“Calvin Curtis’ greed had devastating consequences for his clients, who placed their trust and money in his hands,” said Special Agent in Charge Dennis Rice of the Salt Lake City FBI. “Sadly, financial fraud cases like this are not limited to a few victims. We hope this case sends a strong message that the FBI will do what it takes to make sure such crimes don’t go unpunished.”
“The IRS is proud to collaborate with our law enforcement partners to combat the seemingly ever present fraud in Utah,”¬ stated IRS Phoenix Field Office Special Agent in Charge Darren Lian. “This plea brings the United States one step closer to justice for the many victims who have serious losses in this unfortunate case.”
Assistant United States Attorneys are prosecuting the cases against Curtis and Special Agents from the FBI and IRS Criminal Investigations are conducting the investigation.
Topic(s):
Elder Justice
Financial Fraud
Component(s):
USAO – Utah
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• 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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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.
LIF UPDATE
JUL 28, 2024
The case settles on remand from the 11th Circuit and Daniels signs a loan modification agreement with a commencement date of Jun 20, 2023 for a sum of $329k and a period of 144 months with a balloon payment of $267k due on maturity. Her property at 3927 Dunaire Dr, Valrico, FL 33596 is valued today at appx. $457k.
As an aside, admonished Florida lawyer Constance Daniels had around $400k worth of IRS Tax Liens released between 2023 and 2024 ($383k).
LIF UPDATE
OCT 26, 2022
Five months after the 11th Circuit saved a colleague and lawyer from foreclosure, the mandate issued (without en banc hearing) and as instructed (reversed and remanded) the lower court has reopened the case.
LIT will be tracking this case closely, stay tuned.
LIF COMMENTARY
The article below starts with Constance Daniels failure to pay for her law school tuition loan issued in 2003. She defaulted in 2005 per the complaint. The USA won a judgment of $164k+ in 2011.
In 2010, Wells Fargo commenced foreclosure proceedings in state court, Hillsborough County.
While all this was going on, Ms Daniels, a Republican, was attempting to become a State judge in 2014, which failed.
In late November of 2017 a settlement was reached, dismissing the Wells Fargo foreclosure complaint.
In 2017-2018, lawyer Daniels was failing to look after her client(s). Many moons later, in 2021, that would result in a slap on the wrist by the referee, Hon. Daniel D. Diskey for Fl. Bar.
Then we move onto the June 2018 complaint, filed by Daniels against the mortgage servicer. It was removed to the lower court in Middle District of Florida Federal Court.
The court, via one of the Moody clan of judges, sided with Select Portfolio Servicing, LLC and this formed the appeal which was decided this week by the 11th Circuit.
In Nov. 2020, Wells Fargo filed a renewed foreclosure complaint against Daniels and her homestead in State court. In Sept 2021, Wells Fargo voluntarily dismissed the case and terminated the lis pendens ‘due to loan modification’.
The issue for LIF in this case is quite clear. Who the 11th Circuit has chosen to upend it’s prior stance that mortgage servicers can do no wrong under the FDCPA, despite irrefutable facts confirming otherwise.
For example, LIF refers to the case we highlighted regarding a deficiency judgment (State case, March 2022):
“Florida Lawyer Stephanie Schneider Appeals a Mortgage Foreclosure Deficiency Judgment”
In that case, LIF investigated beyond the court opinions to discover the wife is a Florida Lawyer and her husband, Laurence Schneider is owner of S&A Capital, Inc., a mortgage investment company, has built a national portfolio of performing mortgages that have been written off by other financial institutions.
Our angst is clear. Lawyers are being treated preferentially by the courts over regular citizens and homeowners.
In the case of Daniels, whilst she may have legitimate arguments, there have been many citizens who have failed before her by the wordsmithing by the Federal and Appellate Court(s), which has refused to apply the correct legal interpretation of the FDCPA, or clarify the question(s) with the federal consumer agency, the CFPB.
Whilst LIF is unhappy with the anti-consumer watchdog, the Consumer Financial Protection Bureau (CFPB) which is a revolving door for staff to leave the Bureau and go work for a creditor rights law firm without any restriction or time limit (non-compete), the Daniels case should have been referred to the CFPB for interpretation about the matters of ‘first impression’.
The Second Circuit recently did so for a RESPA question in Naimoli v Ocwen and we highlighted the case on our sister website, LawsInTexas.com (Laws In Texas). Instead of doing so in Daniels, there is a dissenting opinion by Judge Lagoa, who’s father in law is a senior judge in SD Florida (Paul C. Huck) and her hubby is a Jones Day Partner and apparently the leader of the Miami Chapter of the Federalist Society. Lagoa herself is a former Florida Supreme Court justice appointed by Gov DeSantis who ‘ensured he puts conservatives on the bench so that anyone coming to court knows how the court will rule’.
LIF anticipates the Daniels case will be subject to a rehearing petition and presented to the full en banc court for reconsideration. The opinion here is similar to the recent Newsom FDCPA opinion, which was too negative towards Wall St and the financial banking services community. As such, it was vacated by the en banc panel while they reconsider. The courts’ decision is currently pending.
In this case, there is still time for the 11th Circuit to correctly ask the CFPB to provide its opinion on the underlying facts raised on appeal and decided by the 3-panel.
However, what the judiciary won’t do is apply this retroactively to the thousands of cases which have been incorrectly tossed in the last 14 years, resulting in homeowners losing their homes to wrongful foreclosures.
United States v. Daniels (2011)
(8:11-cv-01058)
District Court, M.D. Florida
MAY 13, 2011 | REPUBLISHED BY LIT: MAY 26, 2022
USA Motion for Summary Judgment with Exhibits, Doc. 13, Aug 17, 2011
ORDER granting Motion for summary judgment in favor of the Plaintiff and against the defendant in the amount of $109,813.74,
together with accrued interest in the amount of $54,097.10 as of February 28, 2011,
plus interested at the rate of 8.25 percent per annum and a daily rate of $24.80, until the date of judgment;
for post-judgment interest, at the legal rate, from the entry of final judgment until the date of payment;
and for such other costs of litigation otherwise allowed by law.
The Clerk of Court is directed to close the case.
Signed by Judge Elizabeth A. Kovachevich on 9/22/2011.
(SN) (Entered: 09/22/2011)
U.S. District Court
Middle District of Florida (Tampa)
CIVIL DOCKET FOR CASE #: 8:11-cv-01058-EAK-AEP
| USA v. Daniels Assigned to: Judge Elizabeth A. Kovachevich Referred to: Magistrate Judge Anthony E. Porcelli Demand: $164,000 Cause: 28:1345 Default of Student Loan |
Date Filed: 05/13/2011 Date Terminated: 09/22/2011 Jury Demand: None Nature of Suit: 152 Contract: Recovery Student Loan Jurisdiction: U.S. Government Plaintiff |
| Plaintiff | ||
| 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.
LIF’s Post Reverse and Remand from CA11 Update, July 28, 2024
The case would settle.
(8:18-cv-01652)
District Court, M.D. Florida
NOTICE of settlement Pending by Constance Daniels (Diamond, Kaelyn)
(Entered: 05/10/2023)
60-DAY ORDER OF DISMISSAL re 52 Notice of Pending Resolution. All pending motions, if any, are DENIED as moot. The Clerk is directed to close the file. Signed by Judge James S. Moody, Jr. on 5/10/2023. (SMB)
(Entered: 05/10/2023)
| CLOSED,MEDIATION |
U.S. District Court
Middle District of Florida (Tampa)
CIVIL DOCKET FOR CASE #: 8:18-cv-01652-JSM-CPT
| Daniels v. Select Portfolio Servicing, Inc. Assigned to: Judge James S. Moody, Jr Referred to: Magistrate Judge Christopher P. Tuite
Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 07/11/2018 Date Terminated: 05/10/2023 Jury Demand: Plaintiff Nature of Suit: 190 Contract: Other Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 05/24/2022 | 32 | USCAS OPINION issued by court as to Appellant Constance Daniels. Decision: REVERSED and REMANDED as to 29 Notice of Appeal. EOD: 05/24/22; Mandate to issue at a later date. USCA number: 19-10204-GG. (AG) (Entered: 05/26/2022) |
| 08/31/2022 | 33 | USCA ORDER: Appellant’s motion for appellate attorney’s fees is TRANSFERRED to the district court for its consideration of whether Appellant is entitled to appellate attorney’s fees and the amount of appellate attorney’s fees to which Appellant is entitled, if any, as too 29 Notice of Appeal filed by Constance Daniels. EOD: 08/29/2022; USCA number: 19-10204-GG. (AG) (Entered: 08/31/2022) |
| 08/31/2022 | 34 | MOTION for Attorney Fees by Constance Daniels. (Attachments: # 1 Exhibit A, # 2 Declaration, # 3 Exhibits 1-4 to Declaration, # 4 Exhibit)(AG) (Filed in the 11th Circuit on 8/29/2022) Modified on 8/31/2022 (AG). (Entered: 08/31/2022) |
| 09/01/2022 | 35 | ENDORSED ORDER denying without prejudice 34 Motion for Attorney’s Fees. The record reflects that the Mandate from the Eleventh Circuit has not been issued. The Motion for Attorney’s Fees may be refiled after the mandate is issued and docketed. The Motion shall also be modified to comply with the Court’s local rules. Signed by Judge James S. Moody, Jr on 9/1/2022. (JG) (Entered: 09/01/2022) |
| 10/26/2022 | 36 | MANDATE of USCA: REVERSED AND REMANDED as to 29 Notice of Appeal filed by Constance Daniels. Issued as Mandate: 10/26/22. USCA number: 19-10204-GG. (Attachments: # 1 Bill of Costs, # 2 USCA memo)(JNB) (Entered: 10/26/2022) |
| 10/26/2022 | 37 | ENDORSED ORDER: The Clerk is directed to reopen the case. The parties shall file a joint status report within fourteen days as to how they wish to proceed in light of the Eleventh Circuit’s Opinion. Signed by Judge James S. Moody, Jr. on 10/26/2022. (SMB) (Entered: 10/26/2022) |
| 11/03/2022 | 38 | NOTICE of Appearance by Gabriela N. Timis on behalf of Select Portfolio Servicing, Inc. (Timis, Gabriela) (Entered: 11/03/2022) |
| 11/09/2022 | 39 | STATUS report by Constance Daniels. (Diamond, Kaelyn) (Entered: 11/09/2022) |
| 11/09/2022 | 40 | CASE MANAGEMENT REPORT. (Diamond, Kaelyn) (Entered: 11/09/2022) |
| 11/09/2022 | 41 | MOTION for Attorney Fees as to Entitlement to Appellate Fees and Costs Only by Constance Daniels. (Diamond, Kaelyn) (Entered: 11/09/2022) |
| 11/09/2022 | 42 | ENDORSED ORDER: Defendant shall file its answer on or before November 18, 2022. Signed by Judge James S. Moody, Jr. on 11/9/2022. (SMB) (Entered: 11/09/2022) |
| 11/14/2022 | 43 | CASE MANAGEMENT AND SCHEDULING ORDER: Discovery due by 5/26/2023; Dispositive motions due by 6/30/2023; Pretrial Conference set for TUESDAY, DECEMBER 5, 2023, at 9:00 A.M. in Tampa Courtroom 17 before Judge James S. Moody Jr. Jury Trial set on the JANUARY 2024 trial term in Tampa Courtroom 17 before Judge James S. Moody Jr. Conduct mediation hearing by 6/16/2023. Lead counsel to coordinate dates. Signed by Judge James S. Moody, Jr. on 11/14/2022. (SMB) (Entered: 11/14/2022) |
| 11/18/2022 | 44 | ANSWER and affirmative defenses to 23 Amended Complaint by Select Portfolio Servicing, Inc.(Kohn, Joseph) Modified text on 11/21/2022 (MCB). (Entered: 11/18/2022) |
| 11/23/2022 | 45 | RESPONSE in Opposition re 41 MOTION for Attorney Fees as to Entitlement to Appellate Fees and Costs Only filed by Select Portfolio Servicing, Inc. (Kohn, Joseph) Modified text on 11/28/2022 (SET). (Entered: 11/23/2022) |
| 12/12/2022 | 46 | ENDORSED ORDER denying without prejudice as premature 41 Motion for Attorney Fees for the reasons stated in the Response 45. Signed by Judge James S. Moody, Jr on 12/12/2022. (JG) (Entered: 12/12/2022) |
| 01/04/2023 | 47 | NOTICE of mediation conference/hearing to be held on June 14, 2023 at 1:30 P.M. before Gregory Holder. (Diamond, Kaelyn) (Entered: 01/04/2023) |
| 01/04/2023 | 48 | ORDER appointing Gregory P. Holder, Esq. as mediator in this action. Mediation is scheduled for June 14, 2023, at 1:30 p.m. Signed by Judge James S. Moody, Jr. on 1/4/2023. (SMB) (Entered: 01/04/2023) |
| 03/30/2023 | 49 | STIPULATION /Joint Motion to Extend Case Management Deadlines and Incorporated Memorandum of Law by Constance Daniels. (Diamond, Kaelyn) (Entered: 03/30/2023) |
| 03/31/2023 | 50 | ENDORSED ORDER granting in part 49 Joint Motion to Extend Case Management Deadlines filed by Constance Daniels. The pretrial conference and trial dates remain unchanged. No further extensions of time will be granted absent a showing of good cause. The Court will enter an amended scheduling order separately. Signed by Judge James S. Moody, Jr. on 3/31/2023. (SMB) (Entered: 03/31/2023) |
| 03/31/2023 | 51 | CASE MANAGEMENT AND SCHEDULING ORDER: Discovery due by 7/25/2023; Dispositive motions due by 8/29/2023; Pretrial Conference set for TUESDAY, DECEMBER 5, 2023, at 9:00 A.M. in Tampa Courtroom 17 before Judge James S. Moody Jr. JURY TRIAL is set on the JANUARY 2024 trial term in Tampa Courtroom 17 before Judge James S. Moody Jr. Signed by Judge James S. Moody, Jr. on 3/31/2023. (SMB) (Entered: 03/31/2023) |
| 05/10/2023 | 52 | NOTICE of settlement Pending by Constance Daniels (Diamond, Kaelyn) (Entered: 05/10/2023) |
| 05/10/2023 | 53 | 60-DAY ORDER OF DISMISSAL re 52 Notice of Pending Resolution. All pending motions, if any, are DENIED as moot. The Clerk is directed to close the file. Signed by Judge James S. Moody, Jr. on 5/10/2023. (SMB) (Entered: 05/10/2023) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 07/28/2024 18:04:57 |
JUDGE ESKRIDGE
“ORDER re: By email to the Case Manager, the parties have provided notice of settlement of their dispute.”FIFTH CIRCUIT
“By informing the court that the case had settled, the plaintiff did not “instigate dismissal.” https://t.co/zq7t3oR77E pic.twitter.com/t5p1Tb5p80— lawsinusa (@lawsinusa) July 24, 2024
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.
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
Selective Justice = Ochlocracy and Corruption.
WHY IS THERE NO CHARGES FOR LAWYERS STEALIN’ MILLIONS? https://t.co/gkMkVMboYZ@USAO_NJ @USAO_MDFL @SDFLnews @CityBocaRaton @AGAshleyMoody @flcourts @TheFlaBar @FLBarPresident @SWFLCourts @WSJ @nytimes @reason @MotherJones @ABC— lawsinusa (@lawsinusa) May 26, 2022
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
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