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

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

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

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

Update: July 25, 2021

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

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

COMPLAINT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

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

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

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

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

Impugning Qualifications and Integrity of Judges or Other Officers.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpts of his comments are highlighted below:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CERTIFICATE OF SERVICE

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

Patricia Ann Toro Savitz Staff Counsel

NOTICE OF TRIAL COUNSEL AND DESIGNATION OF PRIMARY EMAIL ADDRESS

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

MANDATORY ANSWER NOTICE

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

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Acceleration

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

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

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FL Honest Lending Report

REPUBLISHED BY LIT: JUL 5, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



Continue Reading

Appellate Circuit

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

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

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

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

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

MAY 29, 2021

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

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

(May 28, 2021)

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

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

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

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

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

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

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

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

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

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

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

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

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

I. Background

A. Facts

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

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

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

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

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

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

B. Procedural History

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

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

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

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

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

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

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

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

The district court granted Truist’s motion to dismiss.

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

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

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

Wright timely appealed.

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

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

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

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

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

In its 28 U.S.C. § 1927 states:

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

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

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

and

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

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

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

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

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

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

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

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

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

II. Analysis

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

A. Breach of Duty by a Notary Public

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. Georgia RICO Act

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

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

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

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

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

This argument fails for two reasons.

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

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

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

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

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

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

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

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

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

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

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

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

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

C. Punitive Damages and Attorney’s Fees

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

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

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

III. Sanctions

A. Wright’s Motion for Sanctions

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

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

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

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

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

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

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

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

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

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

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

In Thomas, we awarded sanctions where the lawyer made:

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

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

(3) thinly veiled threats aimed at opposing counsel,

(4) a racial slur, and

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

Id. at 1323.

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

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

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

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

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

B. Truist’s Motion for Sanctions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See Bonfiglio, 986 F.2d at 1394;

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

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

IV. Conclusion

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

AFFIRMED and REMANDED.

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Bankers

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

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

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LIT COMMENTARY

Update: May 6, 2021

Deutsche Bank is seeking $45,000 in attorney fees as well as other “just and proper” financial penalties from Lee Segal of Segal & Schuh Law Group for multiple filings. Segal is fighting the bid, saying it was filed too late as the case has been dismissed.

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

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

OPINION AND ORDER1

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

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

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

PROCEDURAL BACKGROUND

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

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

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

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

JUDGE CHAPPELL

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

LIT COMMENT: ABSOLUTELY CORRECT.

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

LIT COMMENT: ABSOLUTELY CORRECT.

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

LIT COMMENT: ABSOLUTELY CORRECT.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FL. ATTORNEY LEE SEGAL

MOTION TO REMAND

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

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

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

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

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

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

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

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

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

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

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

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

MOTION TO QUASH

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But this misses the mark.

Florida law requires service upon DBNTC in California.

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

Florida’s service statutes are strictly enforced.

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

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

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

DBNTC was never served.

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

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

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

The irony here is palpable:

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

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

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

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

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

Depoalo’s motion to remand is denied.

MOTION TO STRIKE

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

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

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

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

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

Depoalo’s argument fails.

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

Motion practice is not a barter system.

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

The deadline to respond has now passed.

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

CONCLUSION

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

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

That removal was timely and appropriate.

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

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

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

Accordingly, it is now ORDERED:

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

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

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

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

LEE SEGAL TAKES ON DEUTSCHE BANK NATIONAL TRUST IN FEDERAL COURT

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

 

 

 

PLAINTIFF DEFENDANT COUNTY PLAINTIFF

ATTORNEY

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

01 2020 CA 002497

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

2020-CA-000955

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

2020-CA-000115

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

2020-CA-000695

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

2020-CA-1437ESB

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

 

 

PLAINTIFF DEFENDANT COUNTY PLAINTIFF

ATTORNEY

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

Mortgage Asset-Backed Pass-Through Certificates,

Series 2007-QS4

USDC MD – Tampa Div. 8:20-cv-02410

Dismissed

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

04-2020-CA-000340

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

05-2020-CA-047023

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

Certificates Series 2004-1

Brevard

05-2020-CA-035223

Segal, Lee

 

PLAINTIFF DEFENDANT COUNTY PLAINTIFF

ATTORNEY

ZIFERRYN VENTURES LLC, As

Trustee Of The 8172 Via Rosa Land Trust

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

2020-CA-000747

Dismissed

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

Trustee Of The 8172 Via Rosa

Land Trust

Deutsche Bank National Trust Company As Indenture Clay

2020-CA-000929

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

 

 

PLAINTIFF DEFENDANT COUNTY PLAINTIFF

ATTORNEY

GEORGE WEBER, As Co-

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

Deutsche Bank National Trust Company Lee

2020-CA-005336

Segal, Lee
GEORGE WEBER, As Co-

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

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

Trustee For The 4417 Rudder Way Land Trust

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

Mortgage Pass-Through Certificates, Series 2006- NC2

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

Trustee For The 4417 Rudder Way

Deutsche Bank National Trust Company Pasco

2020-CA-001794

Segal, Lee
INLAND ASSETS, LLC, As

Trustee For 4462 Rudder Way Trust

Deutsche Bank National Trust Company Walton

2020-CA-000410

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

Trustee For The 2950 Summer Swan Land Trust

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

Trustee For RC Certificateholders Land Trust

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

Series 2007

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

 

PLAINTIFF DEFENDANT COUNTY PLAINTIFF

ATTORNEY

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

2020-CA-000035

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

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

Pinellas

19-008350-CI

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

20-003799-CI

Segal, Lee
KEATHEL CHAUNCEY, ESQ. As

Trustee Only For The 1234 Holly Circle Land Trust

Deutsche Bank National Trust Company Escambia

2020-CA-001394

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

2020-CA-000084

Segal, Lee

 

PLAINTIFF DEFENDANT COUNTY PLAINTIFF

ATTORNEY

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

2020-CA-000270

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

As Trustee For The Anderson Family Land Trust

Deutsche Bank National Trust Company Gulf

2020-CA-000131

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

2020-CA-000292

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

 

 

PLAINTIFF DEFENDANT COUNTY PLAINTIFF

ATTORNEY

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

2020-CA-000336

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

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

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

Certificates, Series 2006-2

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

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

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

2020-CA-004318

Segal, Lee; Mausser, Gregory K.

 

PLAINTIFF DEFENDANT COUNTY PLAINTIFF

ATTORNEY

ZIFFERRYN VENTURES, LLC, As

Trustee For The 8172 Via Rosa Land Trust

Deutsche Bank National Trust Company Orange

2020-CA-003153

Segal, Lee
ZIFERRYN VENTURES, LLC, As

Trustee For The 12033 Gandy Blvd Unit 175 Trust

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

19-000251-CI

Segal, Lee
ZIFERRYN VENTURES, LLC, As

Trustee For The 12033 Gandy Blvd Unit 175 Trust

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

20-003796-CI

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

Certificates, Series 2006-10

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

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

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

Deutsche Bank opposes on many grounds.

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

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

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

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

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

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

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

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

There are several issues with this.

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

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

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

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

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

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

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

Accordingly, it is now

ORDERED:

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

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

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

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

/s/ _________
SHERI POLSTER CHAPPELL
UNITED STATES DISTRICT JUDGE

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

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

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

Cause: 18:1961 Racketeering (RICO) Act

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

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