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Appellate Circuit

Judges Charles Wilson, Bert Jordan and Patrick Higginbotham’s Opinion Vacated by 11th Cir. Poll

Judge Pat Higginbotham on his annual excursion to Florida from the 5th Cir., sitting by designation.

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11th Circuit vacates previous ruling on Alabama’s abortion consent bypass law

The 11th Circuit vacated its previous ruling that found parts of Alabama’s abortion consent bypass law unconstitutional. In a two-page notice released Thursday, the court granted a petition for rehearing the case en banc.

JAN 27, 2022 | REPUBLISHED BY LIT: MAR 12, 2022

The 11th Circuit vacated its previous ruling that found parts of Alabama’s abortion consent bypass law unconstitutional. In a two-page notice released Thursday, the court granted a petition for rehearing the case en banc.

“A majority of the judges in active service on this Court having voted in favor of granting rehearing en banc, it is ordered that this appeal will be reheard en banc… the panel’s opinion is vacated,” the 10-judge panel wrote.

Alabama Attorney General Steve Marshall filed the petition for rehearing with the 11th Circuit. Marshall’s office has yet to respond to a request for comment on the court’s decision to grant a rehearing and vacate its previous opinion.

Ten of the 11 active judges for the 11th Circuit participated in the poll to rehear the case. Circuit Judge Andrew Brasher, a Donald Trump appointee, recused himself from the poll and did not participate in Thursday’s decision. Brasher served as Alabama’s Solicitor General from 2014 to 2019.

Alabama’s Parental Consent act required a minor to receive written permission from one of her parents to receive an abortion. If consent is not given by the parents, they may alternatively receive a judicial order allowing the procedure, so long as she is “mature and well-informed enough to make the abortion decision on her own.”

In 2014, the law was amended, changing the process by which a minor can attain a judicial order. Instead of the process being a relatively private affair, the changes required minors to request a judge’s permission before an open court.

Reproductive Health Services, an abortion clinic located in Montgomery, filed the initial challenge in court against the amendments to the Parental Consent Act. They claimed that the changes turned the process into a de facto trial.

In June of 2021, U.S. Circuit Judges Charles Wilson, a Bill Clinton appointee, Adalberto Jordan, a Barack Obama appointee, and Patrick Higginbotham, a Ronald Reagan appointee who usually presides at the Fifth Circuit, ruled the amendments to be unconstitutional because it created obstacles for a minor to get the procedure.

The three-judge panel wrote in a 60-page opinion that the amendments to “the Act [created] an undue burden under Whole Woman’s Health and Casey.” Under the precedent set by Casey, states cannot place restrictions on abortion providers that burden the women seeking to end a pregnancy.

The notice did not indicate when oral arguments will be held in the rehearing of the case.

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Appellate Circuit

God Goes in Front of Me and Makes the Crooked Straight and I Get to Keep My Pension

Ex-Inmate and Former Congresswoman Corrine Brown is Confident of Her Plea Deal Keepin’ Her out of Jail and Ending Her Criminal Case.

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Former congresswoman Corrine Brown to take plea deal
Brown faced retrial this fall on federal fraud charges

May 17, 2021 | REPUBLISHED BY LIT: May 17, 2022

JACKSONVILLE, Fla. – Former congresswoman Corrine Brown is set to change her plea Wednesday in a federal case that involves charges of fraud and conspiracy, avoiding a retrial that was scheduled to take place this fall.

Tuesday morning, News4JAX reporter Jim Piggott spoke with Corrine Brown by phone. She said everything will come out in court tomorrow.

“I want you to know, God has been good to me,”

Brown said.

“I just talked to my pastor and I know that He goes in front of me and make the crooked straight. That’s all I can tell you, He’s good.”

Former U.S. Rep. Corrine Brown is set to change her plea Wednesday in a federal case that involves charges of fraud and conspiracy, avoiding a retrial that was scheduled to take place this fall.

Brown was indicted in 2016 on charges that included conspiracy, wire fraud, and tax fraud, on accusations that she used contributions to the One Door for Education charity for personal expenses.

Brown was convicted on some of the charges in May 2017, and began a five-year prison sentence in January 2018. Brown was released in April 2020, due to coronavirus concerns.

Following her conviction, Brown appealed the guilty verdict, arguing the trial judge wasn’t justified in replacing a juror who said the Holy Spirit told him Brown was not guilty.

A three-judge panel of the 11th Circuit of the U.S. Court of Appeals initially upheld Brown’s conviction.

Brown’s attorneys then asked for a rehearing before the full 11th Circuit, known as an “en banc” hearing. In May 2021, the appellate court reversed the conviction with a 7-4 decision, sending the case back to the district court for a potential retrial.

In October 2021, we learned that prosecutors planned to re-try Brown on the felony counts she faced in her 2017 trial.

At the time, we learned prosecutors had already extended her a plea deal to avoid being retried and the possibility of a return to prison, an offer she rejected at the time.

Following the appointment of a new defense team, Brown’s retrial was set to take place in September of 2022.

News4JAX Jim Piggott spoke with attorney Curtis Fallgatter,

“(Jim) Are you surprised at all?

(Curtis) A little bit, but not terribly because of the age of the case, the complexity of the case, the number of issues, reversal on appeal issues about a retrial, can I get a conviction, the age of Brown.”

The court document indicating that Brown will be changing her plea does not indicate what charges she may be pleading guilty to, or what sentence could potentially be imposed.

Fallgatter doesn’t believe Brown will serve any additional time.

He said she would not agree to that, and the agreement should be an end to the case.

Brown is getting her pension, and that likely will not change.

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Appellate Circuit

Foreclosure Sanctions Maxed Out After Lapin And Leichtling Rip Opposing Counsel

Julio Marrero and Marrero Law continue to file patently frivolous removals and in bad faith sayeth Associate Jan Williams of LL-Lawfirm.com

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Third District Court of Appeal
State of Florida

Opinion filed April 20, 2022.
Not final until disposition of timely filed motion for rehearing.

Nos. 3D21-0373 & 3D21-0668
Lower Tribunal No. 16-28602

Max Kraushaar, et al.,
Appellants, vs.
Wells Fargo Bank, N.A., etc.,
Appellee.

APR 20, 2022 | REPUBLISHED BY LIT: APR 27, 2022

Appeals from the Circuit Court for Miami-Dade County, Barbara Areces, Judge.

Marrero, Chamizo, Marcer Law, LP, and Julio C. Marrero, for appellants.

Lapin & Leichtling, LLP, and Justin G. Prociv, for appellee.

Before FERNANDEZ, C.J., and LINDSEY, and MILLER, JJ. PER CURIAM.

Affirmed.

See Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985);

Person v. Bank of N.Y. Mellon Tr. Co., 201 So. 3d 842, 843 (Fla. 4th DCA 2016).

Wells Fargo Bank N.A. v. Kraushaar

(1:21-cv-21156)

District Court, S.D. Florida

MAR 26, 2021 | REPUBLISHED BY LIT: APR 25, 2022

ORDER

THIS CAUSE comes before the Court on Plaintiff Wells Fargo Bank N.A.’s Motion to Remand, for Sanctions Pursuant to the Court’s Inherent Power to Sanction, and for Reasonable Fees and Costs (the “Motion”) [ECF No. 6].

The Court has reviewed the Motion and the record and is otherwise fully advised. For the reasons that follow, the Motion is granted.

On November 4, 2016, Plaintiff, as Trustee for AEGIS Asset Backed Securities Trust Mortgage Pass Through Certificates Series 2004-4, brought a mortgage foreclosure action against Defendants in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida (“State Circuit Court”).1

On March 26, 2021, Defendants Max Kraushaar and Olinda Kraushaar removed this action from the State Circuit Court (the “Notice of Removal”). [ECF No. 1]. On April 5, 2021,

1 The Court takes judicial notice of the State Circuit Court’s online docket and the documents therein in the original state action titled Wells Fargo Bank N.A. v. Max Kraushaar et al., Case No. 2016-028602-CA-01. See Fed. R. Evid. 201; United States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987) (“A court may take judicial notice of its own records and the records of inferior courts.”).

Plaintiff filed the instant motion, arguing that Defendants’ Notice of Removal is facially deficient and fails to show that removal is proper. [ECF No. 6].

Plaintiff also argues that the Court lacks subject matter jurisdiction over this action. Id.

In addition, the Motion details the recent string of improper removals in state post-judgment foreclosure actions by Julio Marrero, Esq., and the law firm Marrero, Chamizo, Marcer Law LP, who represent Defendants. Id.

Defendants failed to timely respond to the Motion.

This error is fatal for Defendants because “on a motion to remand, the removing party bears the burden of showing the existence of federal subject matter jurisdiction.”

Williams v. Aquachile, Inc., 470 F. Supp. 3d 1277, 1279 (S.D. Fla. 2020) (quoting Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1343 (11th Cir. 2009)).

Because Defendants failed to timely respond to the Motion, they fail to establish the Court’s subject matter jurisdiction.

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Plaintiff Wells Fargo Bank N.A.’s Motion to Remand, for Sanctions Pursuant to the Court’s Inherent Power to Sanction, and for Reasonable Fees and Costs, [ECF No. 6], is GRANTED.

2. The above-styled case is REMANDED to Eleventh Judicial Circuit in and for Miami-Dade County, Florida.

3. Plaintiff Wells Fargo Bank N.A. shall be awarded $500.00 as reasonable costs and attorney’s fees, which Plaintiff shall recover from Defendants Max Kraushaar and Olinda Kraushaar and their counsel, Julio Marrero, Esq., of the law firm Marrero, Chamizo, Marcer Law LP, jointly and severally.

4. Any pending motions are DENIED as moot.

5. This case is CLOSED.

DONE AND ORDERED in Chambers in Miami, Florida, this 21st day of April, 2021.

 

 

 

 

JUDGE DARRIN P. GAYLES, SD FL.

Motion for Sanctions

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U.S. District Court
Southern District of Florida (Miami)
CIVIL DOCKET FOR CASE #: 1:21-cv-21156-DPG

Wells Fargo Bank N.A. v. Kraushaar et al
Assigned to: Judge Darrin P. Gayles

Case in other court:  Miami-Dade County Circuit State Court, 16-028602-CA-01

Cause: 12:1441 Federal Mortgage Foreclosure

Date Filed: 03/26/2021
Date Terminated: 04/21/2021
Jury Demand: None
Nature of Suit: 220 Real Property: Foreclosure
Jurisdiction: Federal Question
Plaintiff
Wells Fargo Bank N.A.
as Trustee for AEGIS Assest Backed Securities Trust Mortgage Pass Through Certificates Series 2004-4
represented by Jan Timothy Williams
Lapin & Leichtling, LLP
255 Alhambra Circle
Suite 1250
Coral Gables, FL 33134
3058300421
Email: jwilliams@ll-lawfirm.com
ATTORNEY TO BE NOTICED
V.
Defendant
Max Kraushaar represented by Julio Cesar Marrero
Marrero, Chamizo, Marcer Law, LP
3850 Bird Road, Suite 902
Coral Gables, FL 33146
305-446-0163
Email: eqramul@marrerorealestatelaw.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Defendant
Olinda Kraushaar represented by Julio Cesar Marrero
(See above for address)
ATTORNEY TO BE NOTICED

 

Date Filed # Docket Text
03/26/2021 1 NOTICE OF REMOVAL (STATE COURT COMPLAINT – Complaint for Foreclosure) Filing fee $ 402.00 receipt number AFLSDC-14555290, filed by Olinda Kraushaar, Max Kraushaar.(Marrero, Julio) (Entered: 03/26/2021)
03/26/2021 2 Clerks Notice of Judge Assignment to Judge Darrin P. Gayles.Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Edwin G. Torres is available to handle any or all proceedings in this case. If agreed, parties should complete and file the Consent form found on our website. It is not necessary to file a document indicating lack of consent.

Pro se (NON-PRISONER) litigants may receive Notices of Electronic Filings (NEFS) via email after filing a Consent by Pro Se Litigant (NON-PRISONER) to Receive Notices of Electronic Filing. The consent form is available under the forms section of our website. (scn) (Entered: 03/26/2021)

03/26/2021 3 Clerks Notice to Filer re: Electronic Case. State Court Records not included. Filer is instructed to file a Notice (Other) with the State Court Records attached within 24 hours. (scn) (Entered: 03/26/2021)
03/26/2021 4 Clerks Notice to Filer re: Electronic Case. No Civil Cover Sheet. Filer is instructed to file a Notice (Other) with the Civil Cover Sheet attached within 24 hours of the notice. (scn) (Entered: 03/26/2021)
04/05/2021 5 NOTICE OF COURT PRACTICE. Unless otherwise specified by the Court, every motion shall be double-spaced in Times New Roman 12-point typeface. Multiple Plaintiffs or Defendants shall file joint motions with co-parties unless there are clear conflicts of position. If conflicts of position exist, parties shall explain the conflicts in their separate motions. Failure to comply with ANY of these procedures may result in the imposition of appropriate sanctions, including but not limited to, the striking of the motion or dismissal of this action. Signed by Judge Darrin P. Gayles (jsi) (Entered: 04/05/2021)
04/05/2021 6 Plaintiff’s MOTION to Remand to State Court for Sanctions Pursuant to the Court’s Inherent Power to Sanction, and for Reasonable Fees and Costs by Wells Fargo Bank N.A.. Attorney Jan Timothy Williams added to party Wells Fargo Bank N.A.(pty:pla). (Williams, Jan) (Entered: 04/05/2021)
04/21/2021 7 Order Granting 6 Plaintiff’s MOTION to Remand to State Court for Sanctions Pursuant to the Court’s Inherent Power to Sanction, and for Reasonable Fees and Costs filed by Wells Fargo Bank N.A. The above-styled case is REMANDED to Eleventh Judicial Circuit in and for Miami-Dade County, Florida. Closing Case. Signed by Judge Darrin P. Gayles on 4/21/2021. See attached document for full details. (scn) (Entered: 04/21/2021)
04/21/2021 8 Transmittal Letter Sent with DE#7 to: Eleventh Judicial Circuit in and for Miami-Dade County, Florida. State Court Case Number: 16-028602-CA-01. (scn) (Entered: 04/21/2021)
05/10/2021 9 ACKNOWLEDGMENT OF RECEIPT as to 8 Transmittal Letter Sent. (scn) (Entered: 05/10/2021)
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Appellate Circuit

The 3rd Branch is Now Circlin’ the Wagons Around the Ivory Tower

Gov. DeSantis appoints Gordo and Lobree to the Third District Court of Appeal, Apr 25, 2019 as conservative, constitutional judges.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CALVIN E. JACKSON and CARMEN A. JACKSON,

Appellants,

v.

WILMINGTON SAVINGS FUND SOCIETY, FSB, D/B/A CHRISTIANA TRUST, NOT INDIVIDUALLY, BUT AS TRUSTEE FOR

PRETIUM MORTGAGE ACQUISITION TRUST, and UNITED STATES OF AMERICA, BY AND THROUGH THE SMALL BUSINESS ADMINISTRATION,

Appellees.

No. 4D20-2779 [March 31, 2022]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Barry J. Stone, Senior Judge; L.T. Case No. 062014CA021611AXXXCE.

Bruce Jacobs of Jacobs Legal, PLLC, Miami, for appellants.

Adam G. Schwartz of Fox McCluskey Bush Robison PLLC, Stuart, for appellee Wilmington Savings Fund Society, FSB.

 

 REPUBLISHED BY LIF: APR 1, 2022

PER CURIAM.

Affirmed.

CONNER, C.J., GERBER and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

Third District Court of Appeal
State of Florida

Opinion filed March 30, 2022.
Not final until disposition of timely filed motion for rehearing.

No. 3D21-606
Lower Tribunal No. 12-38811

Joseph T. Buset,
Appellant,

vs.

HSBC Bank USA, National Association, etc.,
Appellee.

 REPUBLISHED BY LIF: MAR 30, 2022

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Charles K. Johnson, Judge.

Jacobs Legal, PLLC, and Bruce Jacobs, for appellant.

Greenberg Traurig, P.A., and Kimberly S. Mello and Arda Goker (Orlando), for appellee.

Before LOGUE, MILLER, and LOBREE, JJ. PER CURIAM.

Affirmed.

Bank of New York Mellon v. Simpson, 227 So. 3d 669, 670

(Fla. 3d DCA 2017)

(“This Court has held to the principle that that Rule 1.540(b) does not have as its purpose or intent the reopening of lawsuits to allow parties to state new claims or offer new evidence omitted by oversight or inadvertence.”);

see also JPMorgan Chase Bank, N.A. v. Llovet, 330 So.3d 1006, 1010 (Fla. 3d DCA 2021);

HSBC Bank USA, Nat’l Ass’n v. Buset, 241 So. 3d 882, 891 (Fla. 3d DCA 2018).

Third District Court of Appeal
State of Florida

Opinion filed March 30, 2022.
Not final until disposition of timely filed motion for rehearing.

Nos. 3D20-1470; 3D21-0737; 3D21-0409
Lower Tribunal No. 19-29733

Stanislav Fiskin,
Appellant,

vs.

Wilmington Trust, N.A., etc.,
Appellee.

 REPUBLISHED BY LIF: MAR 30, 2022

Appeals from the Circuit Court for Miami-Dade County, Abby Cynamon and Charles K. Johnson, Judges.

Cotzen Law, P.A., and Michael L. Cotzen, for appellant.

Fox McCluskey Bush Robison PLLC, and Eric S. Matthew (Stuart), for appellee.

Before FERNANDEZ, C.J., and LINDSEY, and LOBREE, JJ. PER CURIAM.

Affirmed.

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