Appellate Circuit
These ‘Ivory Tower’ Outlaws Want to Silence Florida’s Foreclosure Defense Lawyer Bruce Jacobs
Sanctions may include reprimand, contempt, striking of briefs or pleadings, dismissal of proceedings, costs, attorneys’ fees, or other sanctions.
Third District Court of Appeal
State of Florida
Opinion filed January 26, 2022.
No. 3D20-1712
Lower Tribunal No. 16-14544
Azran Miami 2, LLC,
Appellant, vs.
US Bank Trust, N.A., etc.,
Appellee.
JAN 26, 2022 | REPUBLISHED BY LIT: FEB 2, 2022
An Appeal from non-final orders from the Circuit Court for Miami-Dade County, Pedro P. Echarte, Jr., Judge.
Jacobs Legal PLLC, and Bruce Jacobs, for appellant.
Locke Lord LLP, and Steven J. Brotman (West Palm Beach), for appellee.
Before EMAS, GORDO and LOBREE, JJ.1
1Judge Gordo did not serve on the panel that issued the opinion in this case, and has replaced Judge Miller, who did serve on the panel that issued the opinion in this case.
Following the issuance of our opinion, Mr. Jacobs filed a motion which cites to, quotes from, and relies upon a 2018 lower court order in an unrelated case in which then-Circuit Court Judge Miller was the presiding judge.
Mr. Jacobs’ reliance on that order as ostensible support for his post-opinion motion in this case is even more puzzling given the fact that,
PER CURIAM.
On Motion to Certify Conflict, Request for Written Opinion, Motion for Rehearing, and/or Motion for Rehearing En Banc
The motion of appellant, Azran Miami 2, LLC, filed by Bruce Jacobs, Esq. and entitled Motion to Certify Conflict, Request for Written Opinion, Motion for Rehearing, and/or Motion for Rehearing En Banc, together with the twelve separately filed appendices (totaling nearly 3500 pages), filed by Mr. Jacobs in support of said motion, are stricken because they violate the Florida Rules of Appellate Procedure and the Rules Regulating the Florida Bar, as more fully detailed below.
ORDER TO SHOW CAUSE
Further, this court on its own motion and pursuant to Florida Rule of Appellate Procedure 9.410(a), finds there is a reasonable basis to conclude that the Motion to Certify Conflict, Request for Written Opinion, Motion for Rehearing, and/or Motion for Rehearing En Banc (“Mr. Jacobs’ Motion”), and
twelve days after issuing the 2018 order, Judge Miller vacated it, rendering it a legal nullity.
Mr. Jacobs’ post-opinion motion implies a derisive and unsupported basis for Judge Miller’s vacatur order, which is addressed in greater detail, infra at 12-13.
In light of Mr. Jacobs’ actions in this regard, and in an abundance of caution, Judge Miller has recused herself from further consideration of this cause, including our issuance of the instant order to show cause.
appendices thereto, violate the Rules of Appellate Procedure in the following manner:
1. Mr. Jacobs filed twelve separate appendices, totaling 3,469 pages (unpaginated and unindexed), comprised of documents that are outside the record on appeal, regarding events or proceedings occurring after Mr. Jacobs filed his notice of appeal in this cause, 2 and are otherwise unrelated to the instant appeal.
Mr. Jacobs failed to seek leave of court before filing these documents, and it appears there would have been no proper basis for granting leave had it been sought.
See, e.g., Konoski v. Shekarkhar, 146 So. 3d 89 (Fla. 3d DCA 2014)
(striking appellee’s appendix, which contained documents outside the record, noting that appellee did not seek leave to file such extra-record documents, and admonishing counsel for filing the unauthorized appendix);
Rosenberg v. Rosenberg, 511 So. 2d 593, 595 n. 3 (Fla. 3d DCA 1987)
(noting: “It is entirely inappropriate and subjects the movant to possible sanctions to inject matters in the appellate proceedings which were not before the trial court”);
Pedroni v. Pedroni, 788 So. 2d 1138 (Fla. 5th DCA 2001) (same);
2 In fact, most of the documents contained in the appendices were not even created (or the events to which they relate did not even take place) until after the briefing in this appeal had been completed and the appeal perfected.
Swyers v. State, 483 So. 2d 520, 521 (Fla. 4th DCA 1986)
(observing: “The law is clear that matters outside the record may not be made the subject of a motion for rehearing”);
Altchiler v. Dep’t of Prof’l Reg., 442 So. 2d 349, 350 (Fla. 1st DCA 1983)
(holding: “When a party includes in an appendix material or matters outside the record, or refers to such material or matters in its brief, it is proper for the court to strike the same. That an appellate court may not consider matters outside the record is so elemental that there is no excuse for any attorney to attempt to bring such matters before the court”) (citations omitted).
Jacobs violated Florida Rule of Appellate Procedure 9.330(a), which provides:
“A motion for rehearing shall state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its order or decision. The motion shall not present issues not previously raised in the proceeding.”
See also Rule 9.330, 2000 amend. comm. note
(providing that a motion for rehearing “should be utilized to bring to the attention of the court points of law or fact that it has overlooked or misapprehended in its decision, not to express mere disagreement with its resolution of the issues on appeal”);
Sherwood v. State, 111 So. 2d 96 (Fla. 3d DCA 1959)
(holding motion for rehearing may not be used as a means to reargue points involved in the case or to raise other or different grounds than those previously relied on in the appeal);
Ayala v. Gonzalez, 984 So. 2d 523, 526 (Fla. 5th DCA 2008)
(issuing show cause order and holding that a motion for rehearing in an appellate court is not “an open invitation for an unhappy litigant or attorney to reargue the same points previously presented, or to discuss the bottomless depth of the displeasure that one might feel toward this judicial body as a result of having unsuccessfully sought appellate relief”).
Mr. Jacobs has violated Rule 9.330(a), and the case law applying that rule, by alleging in his Motion:
a. The trial court denied Mr. Jacobs’ motion to vacate an earlier judgment “in deference to shadow rulings of this Court.”
Mr. Jacobs’ Motion at 2.
b. This Court has created a “shadow body of law that allows banks to commit fraud.”
Mr. Jacobs’ Motion at 2.
c. “The panel decision is already being paraded about by attorneys engaged in this systemic fraud as controlling law that grants a privilege to commit systemic fraud when it states no facts.”
Mr. Jacobs’ Motion at 4.
Wordle for Judges in Fl State Appellate Courts. pic.twitter.com/jvSBuXEi44
— LawsInTexas (@lawsintexasusa) February 1, 2022
d. “[T]he panel ruling perpetuates a shadow law that banks are above the constitution and can commit fraud with impunity.”
Mr. Jacobs’ Motion at 10.
e. This court’s issuance of a citation per curiam affirmed opinion in this case constitutes “an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice.”3
Mr. Jacobs’ Motion at 24.
3. Mr. Jacobs takes one or more frivolous positions, or makes one or more arguments in bad faith, in violation of Florida Rule of Appellate Procedure 9.410(a)
(providing that the court “may impose sanctions for
3 While Mr. Jacobs quoted language from Jones v. State, 477 So. 2d 566 (Fla. 1985), he takes it out of context and uses it in a misleading way and for a derogatory purpose.
Jones had nothing to do with the characterization of a per curiam affirmed opinion.
Instead, the quote is taken from a concurring opinion in Jones that addressed the requirements for common-law certiorari and further defined the phrase “departure from the essential requirements of the law” as meaning “something far beyond legal error.
It means an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice.”
Id. at 569 (Boyd, C.J., concurring).
Mr. Jacobs seizes upon this description of common-law certiorari, ostensibly using it to justify his accusation that the very issuance of the citation opinion in the instant case constitutes
“an abuse of judicial power” and “an act of judicial tyranny” resulting in a “miscarriage of justice.”
any violation of these rules, or for the filing of any proceeding, motion, brief, or other documents that is frivolous or in bad faith”).
One example of the frivolous or bad faith nature of Mr. Jacobs’ Motion (beyond that described elsewhere in this Order) is the basis offered for seeking this court’s certification, pursuant to rule 9.330(a)(2)(C), that the instant decision expressly and directly conflicts4
4 In fact, Mr. Jacobs’ Motion contains an extensive quote from a decision of the Florida Supreme Court that undermines his purported certification of express and direct conflict.
Mr. Jacobs’ Motion claims that the Florida Supreme Court, in Department of Legal Affairs v. District Court of Appeal, Fifth District, 434 So. 2d 310 (Fla. 1983) “warned about” the “shadow body of law” created by per curiam affirmed decisions.
Nowhere does the Florida Supreme Court describe a “shadow body of law” alluded to by Mr. Jacobs, nor does the Court “warn against” the issuance of per curiam affirmed decisions.
The issue and holding in that case, as framed by the Court, was “whether a per curiam appellate court decision with no written opinion has any precedential value.
We hold that it does not.”
Id. at 311 (emphasis added).
That holding cannot be reconciled with Mr. Jacobs’ certification that the citation per curiam affirmance in the instant case “expressly and directly conflicts with” decisions of other district courts.
See also The Florida Star v. B.J.F., 530 So. 2d 286, 289 n. 3 (Fla. 1988)
(discussing the contours of conflict jurisdiction, observing “there can be no actual conflict discernible in an opinion containing only a citation to other case law unless one of the cases cited as controlling authority is pending before this Court, or has been reversed on appeal or review, or receded from by this Court, or unless the citation explicitly notes a contrary holding of another district court or of this Court.”)
(citing Jollie v. State, 405 So. 2d 418, 420 (Fla. 1981)).
Further, the record itself (much less the near 3500 pages of extra-record appendices filed by Mr. Jacobs in support of his Motion) cannot be used to establish conflict jurisdiction.
Reaves v. State, 485 So. 2d 829, 830 n.3 (Fla. 1986)
(“The only facts relevant to our decision to accept or reject such petitions [based on conflict] are those facts contained within the four corners
with three other appellate court decisions.
First, Mr. Jacobs’ motion “certifies” that our decision “expressly and directly conflicts with a decision of the Second District which held the trial court abused its discretion to deny leave to plead or prove this same evidence of standing was fraudulently created,”
citing Sorenson v. Bank of New York Mellon as trustee for Certificate Holders CWALAT, Inc., 261 So. 3d 660 (Fla. 2d DCA 2018).
However, Sorenson was an appeal from a final judgment of foreclosure in which defendant raised as error the trial court’s denial of defendant’s motion to amend his answer and affirmative defenses to add a fraud defense.
Our sister court reversed, holding the trial court abused its discretion in denying Sorenson the opportunity to amend his affirmative defenses to include a fraud defense.
The court’s holding was premised upon the well-established legal propositions that:
under Florida Rule of Civil Procedure 1.190, leave of court to amend pleadings shall be given freely when justice so requires;
that this rule represents a public policy
of the decisions allegedly in conflict….
Thus, it is pointless and misleading to include a comprehensive recitation of facts not appearing in the decision below, with citations to the record, as petitioner provided here.
Similarly, voluminous appendices are normally not relevant”).
An inherent or implied conflict cannot serve as a basis for the Florida Supreme Court’s conflict jurisdiction.
Dept. of Health & Rehab. Servs. v. Nat’l Adoption Counseling Serv., Inc., 498 So. 2d 888 (Fla. 1986).
favoring the liberal amendment of pleadings;
and that trial courts should resolve all doubts in favor of allowing the amendment of pleadings to allow cases to be decided on their merits.
Id. at 663.
Sorenson, and these entrenched propositions, are inapposite to the issues raised in the instant appeal from a postjudgment order denying a motion for relief from judgment under Florida Rule of Civil Procedure 1.540, which we affirmed in a citation per curiam affirmed decision.
In his initial brief in the instant case, Mr. Jacobs asserted the following six claims:
I. Azran has a Constitutional Guarantee of Due Process
II. Fraud on the Court is NOT Due Process of Law
III. This Honorable Court Should Join the Other State and Federal Trial and Appellate Courts that Have Called out Systemic Fraud on the Court in Foreclosures
IV. The Ninth Circuit Holds There is No Litigation Privilege to Commit Systemic Fraud on the Court
V. Doctrine of Unclean Hands Bars the Equitable Relief of Foreclosure When the Plaintiff Engaged in Forgery, Perjury and Violated Florida’s RICO Statute
VI. The Trial Court Erred in Denying the Rule 1.540(b) Motion Without an Evidentiary Hearing
Sorenson is wholly inapplicable to these asserted claims and cannot serve as a basis for express and direct conflict with the instant case
involving a denial of a motion for relief from judgment under Rule 1.540.
The only aspects shared by this case and Sorenson are
that both are foreclosure cases;
both involve Mr. Jacobs as counsel for the defendant;
and both involve an allegation of fraud.
Indeed, if the panel decision in the instant case did somehow expressly and directly conflict with the Second District’s holding in Sorenson, the panel decision in this case would also expressly and directly conflict with dozens of decisions of our own court that stand for the same legal propositions reaffirmed by our sister court in Sorenson.5
Mr. Jacobs fares no better with the two remaining cases he cites as ostensible support for his request that this court certify express and direct conflict:
our sister court’s decision in Schwartz v. Bank of America, N.A., 267 So. 3d 414 (Fla. 4th DCA 2019)
and this court’s own decision in Barsan v. Trinity Financial Services, LLC, 258 So. 3d 516 (Fla. 3d DCA 2018).
Like Sorenson, Schwartz involved an appeal from a final summary
5 See, e.g., DiGiacomo v. Mosquera, 322 So. 3d 734 (Fla. 3d DCA 2021);
Fayad v. Univ. of Miami, 307 So. 3d 114 (Fla. 3d DCA 2020);
Pangea Produce Distribs., Inc. v. Franco’s Produce, Inc., 275 So. 3d 240, 242 (Fla. 3d DCA 2019);
JVN Holdings, Inc. v. Am. Constr. & Repairs, 185 So. 3d 599, 601 (Fla. 3d DCA 2016);
Off Lease Only, Inc. v. LeJeune Auto Wholesale, Inc., 187 So. 3d 868, 871 n. 4 (Fla. 3d DCA 2016);
Kay’s Custom Drapes, Inc. v. Garrote, 920 So. 2d 1168, 1171 (Fla. 3d DCA 2006);
Downtown Invs., Ltd. v. Segall, 551 So. 2d 561 (Fla. 3d DCA 1989).
judgment of foreclosure in which Mr. Jacobs represented the defendant homeowners.
On appeal, Mr. Jacobs contended the trial court erred in granting summary judgment because “discovery was outstanding and material issues of fact remained on the[] claim of fraud” regarding the endorsement to the promissory note.
Schwartz, 267 So. 3d at 414.
However, the Fourth District affirmed, holding that appellees properly established standing, that Schwartz failed to timely submit evidence to rebut the summary judgment motion and that judgment was properly entered in favor of Bank of America. Id.
Completing the trilogy, our court in Barsan, 258 So. 3d at 516, issued a citation per curiam affirmed opinion which reads in full:
Affirmed.
See § 673.3081(1), Fla. Stat. (2016);
Bennett v. Deutsche Bank Nat. Trust Co., 124 So. 3d 320, 322 (Fla. 4th DCA 2013)
(noting that the term “presumed” in section 673.3081(1) means that until some evidence is introduced which would support a finding that the signature is forged or unauthorized, the plaintiff was not required to prove that it is valid (citing UCC comment 1 to section 673.3081), and because defendants failed to make any evidentiary showing to support their claim that the signer was unauthorized, plaintiff was entitled to rely on the presumption to obtain summary final judgment).
See also
Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979);
Cardona v. Casas, 225 So. 3d 384 (Fla. 3dDCA 2017):
Rodriguez v. Lorenzo, 215 So. 3d 631, 632 (Fla. 3d DCA 2017)
(applying Applegate and noting that, in the absence of a transcript of the relevant hearing, the reviewing court is unable to determine whether the trial court abused its discretion).
None of the three cases cited by Mr. Jacobs “expressly and directly conflicts with” the decision in this case and cannot in good faith support the conflict certification request made pursuant to Florida Rule of Appellate Procedure 9.330(a)(2)(C).6
As a second example of arguments made, or positions taken, frivolously or in bad faith, Mr. Jacobs’ Motion quotes from and relies upon— as ostensible support for his legal position—a 2018 trial court order issued in an unrelated case
(Bank of New York Mellon v. Lisa S. Dulberg de Morales, Circuit Court Case Number 13-808).
That order, dated August 10, 2018, granted a motion to impose sanctions upon Bank of New York Mellon and Bank of America.
However, less than two weeks later, the trial
6 Indeed, because Barsan v. Trinity Fin. Services, LLC, 258 So. 3d 516 (Fla. 3d DCA 2018), was a decision issued by this court, Mr. Jacobs is precluded from relying upon it as a basis for seeking certification of express and direct conflict under rule 9.330(a)(2)(C).
That rule provides the procedure for a party to request that the appellate court certify that its decision expressly and directly conflicts with a decision of another district court of appeal, thereby providing a jurisdictional basis for discretionary review by the Florida Supreme Court, as conferred by the Florida Constitution.
See Art. V, § 3(b)(3), Fla. Const.
(providing that the Florida Supreme Court “may review any decision of a district court of appeal that . . expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law.”);
Art. V, § 3(b)(4), Fla. Const.
(providing that the Florida Supreme Court “may review any decision of a district court of appeal that passes upon a question. . . that is certified by it to be in direct conflict with a decision of another district court of appeal.”) (Emphasis added).
I am message box. Click edit button to change this text.
judge vacated that sanctions order, and ultimately denied the motion for sanctions after holding a subsequent hearing.7
While it is true that Mr. Jacobs’ Motion acknowledges that the August 10, 2018 order in that unrelated case was vacated by the trial court judge, Mr. Jacobs nevertheless fails to explain why he would quote from a vacated order in an unrelated case, or how such a vacated order from an unrelated case is anything more than a legal nullity, much less an order upon which this court should rely as persuasive authority for some legal proposition advanced by him.8
As a final example, the appendix to Mr. Jacobs’ Motion includes an April 15, 2019 order issued by a circuit court judge in the unrelated case of U.S. Bank v. Raul Zayas, circuit court case number 14-32372.
However, on November 6, 2019, this court quashed that trial court order.
U.S. Bank v.
7 Although Mr. Jacobs attaches the original trial court order of August 10, 2018, he fails to attach the August 22, 2018 order vacating the earlier order.
8 While we cannot know the actual motivation for Mr. Jacobs’ inclusion of portions of this vacated order in his Motion, it is noteworthy that the then-trial court judge who issued the order (and ten days later vacated it) presently serves on this court and served on the panel that issued the decision in the instant appeal.
Mr. Jacobs creates a negative implication by alleging in his Motion that the trial court judge “vacated her sanctions order that called out willful bad faith by BANA and BONYM just before Governor Rick Scott elevated her to the Third DCA.”
Mr. Jacobs’ Motion at 5-6.
Such a frivolous implication, made without basis, advancing no relevant position and serving no other apparent purpose but to malign or impugn the integrity of a judge, appears to violate Rule 4-8.2(a), Rules Regulating the Florida Bar.
Post Edited: Homeowner Announces Victory in Florida Against Wrongful Foreclosure, Quietly Affirmed on Appeal https://t.co/hXyc88iJ2o
— LawsInTexas (@lawsintexasusa) January 29, 2022
Zayas, 290 So. 3d 972, 973 (Fla. 3d DCA 2019)
(granting the petition for writ of certiorari, quashing the trial court order and holding “it is a departure from the essential requirements of law, not remediable on appeal, to subject a party to a show cause order and sanctions for failing to produce documents it has not previously been ordered to produce”).
The appendix does not contain this court’s opinion quashing that trial court order, nor does Mr. Jacobs’ Motion disclose the existence of this court’s subsequent decision quashing that trial court order.
WHEREFORE, Bruce Jacobs, Esq., Florida Bar Number 116203, of Jacobs Legal, PLLC, is hereby ordered to show cause within twenty days from the date of this order why sanctions should not be imposed upon him for violation of the Rules of Appellate Procedure.
As provided by Rule 9.410(a), such sanctions may include reprimand, contempt, striking of briefs or pleadings, dismissal of proceedings, costs, attorneys’ fees, or other sanctions.
YOUR DONATION(S) WILL HELP US:
• Continue to provide this website, content, resources, community and help center for free to the many homeowners, residents, Texans and as we’ve expanded, people nationwide who need access without a paywall or subscription.
• Help us promote our campaign through marketing, pr, advertising and reaching out to government, law firms and anyone that will listen and can assist.
Thank you for your trust, belief and support in our conviction to help Floridian residents and citizens nationwide take back their freedom. Your Donations and your Voice are so important.
Appellate Circuit
Constance Daniels, Student of Hard Knocks, Admonished Florida Lawyer and Friend of The Eleventh Circuit
LIF cannot comprehend how the People of Florida and the United States of America are so accepting of Brazen Corruption.
LIF UPDATE
JUL 28, 2024
The case settles on remand from the 11th Circuit and Daniels signs a loan modification agreement with a commencement date of Jun 20, 2023 for a sum of $329k and a period of 144 months with a balloon payment of $267k due on maturity. Her property at 3927 Dunaire Dr, Valrico, FL 33596 is valued today at appx. $457k.
As an aside, admonished Florida lawyer Constance Daniels had around $400k worth of IRS Tax Liens released between 2023 and 2024 ($383k).
LIF UPDATE
OCT 26, 2022
Five months after the 11th Circuit saved a colleague and lawyer from foreclosure, the mandate issued (without en banc hearing) and as instructed (reversed and remanded) the lower court has reopened the case.
LIT will be tracking this case closely, stay tuned.
LIF COMMENTARY
The article below starts with Constance Daniels failure to pay for her law school tuition loan issued in 2003. She defaulted in 2005 per the complaint. The USA won a judgment of $164k+ in 2011.
In 2010, Wells Fargo commenced foreclosure proceedings in state court, Hillsborough County.
While all this was going on, Ms Daniels, a Republican, was attempting to become a State judge in 2014, which failed.
In late November of 2017 a settlement was reached, dismissing the Wells Fargo foreclosure complaint.
In 2017-2018, lawyer Daniels was failing to look after her client(s). Many moons later, in 2021, that would result in a slap on the wrist by the referee, Hon. Daniel D. Diskey for Fl. Bar.
Then we move onto the June 2018 complaint, filed by Daniels against the mortgage servicer. It was removed to the lower court in Middle District of Florida Federal Court.
The court, via one of the Moody clan of judges, sided with Select Portfolio Servicing, LLC and this formed the appeal which was decided this week by the 11th Circuit.
In Nov. 2020, Wells Fargo filed a renewed foreclosure complaint against Daniels and her homestead in State court. In Sept 2021, Wells Fargo voluntarily dismissed the case and terminated the lis pendens ‘due to loan modification’.
The issue for LIF in this case is quite clear. Who the 11th Circuit has chosen to upend it’s prior stance that mortgage servicers can do no wrong under the FDCPA, despite irrefutable facts confirming otherwise.
For example, LIF refers to the case we highlighted regarding a deficiency judgment (State case, March 2022):
“Florida Lawyer Stephanie Schneider Appeals a Mortgage Foreclosure Deficiency Judgment”
In that case, LIF investigated beyond the court opinions to discover the wife is a Florida Lawyer and her husband, Laurence Schneider is owner of S&A Capital, Inc., a mortgage investment company, has built a national portfolio of performing mortgages that have been written off by other financial institutions.
Our angst is clear. Lawyers are being treated preferentially by the courts over regular citizens and homeowners.
In the case of Daniels, whilst she may have legitimate arguments, there have been many citizens who have failed before her by the wordsmithing by the Federal and Appellate Court(s), which has refused to apply the correct legal interpretation of the FDCPA, or clarify the question(s) with the federal consumer agency, the CFPB.
Whilst LIF is unhappy with the anti-consumer watchdog, the Consumer Financial Protection Bureau (CFPB) which is a revolving door for staff to leave the Bureau and go work for a creditor rights law firm without any restriction or time limit (non-compete), the Daniels case should have been referred to the CFPB for interpretation about the matters of ‘first impression’.
The Second Circuit recently did so for a RESPA question in Naimoli v Ocwen and we highlighted the case on our sister website, LawsInTexas.com (Laws In Texas). Instead of doing so in Daniels, there is a dissenting opinion by Judge Lagoa, who’s father in law is a senior judge in SD Florida (Paul C. Huck) and her hubby is a Jones Day Partner and apparently the leader of the Miami Chapter of the Federalist Society. Lagoa herself is a former Florida Supreme Court justice appointed by Gov DeSantis who ‘ensured he puts conservatives on the bench so that anyone coming to court knows how the court will rule’.
LIF anticipates the Daniels case will be subject to a rehearing petition and presented to the full en banc court for reconsideration. The opinion here is similar to the recent Newsom FDCPA opinion, which was too negative towards Wall St and the financial banking services community. As such, it was vacated by the en banc panel while they reconsider. The courts’ decision is currently pending.
In this case, there is still time for the 11th Circuit to correctly ask the CFPB to provide its opinion on the underlying facts raised on appeal and decided by the 3-panel.
However, what the judiciary won’t do is apply this retroactively to the thousands of cases which have been incorrectly tossed in the last 14 years, resulting in homeowners losing their homes to wrongful foreclosures.
United States v. Daniels (2011)
(8:11-cv-01058)
District Court, M.D. Florida
MAY 13, 2011 | REPUBLISHED BY LIT: MAY 26, 2022
USA Motion for Summary Judgment with Exhibits, Doc. 13, Aug 17, 2011
ORDER granting Motion for summary judgment in favor of the Plaintiff and against the defendant in the amount of $109,813.74,
together with accrued interest in the amount of $54,097.10 as of February 28, 2011,
plus interested at the rate of 8.25 percent per annum and a daily rate of $24.80, until the date of judgment;
for post-judgment interest, at the legal rate, from the entry of final judgment until the date of payment;
and for such other costs of litigation otherwise allowed by law.
The Clerk of Court is directed to close the case.
Signed by Judge Elizabeth A. Kovachevich on 9/22/2011.
(SN) (Entered: 09/22/2011)
U.S. District Court
Middle District of Florida (Tampa)
CIVIL DOCKET FOR CASE #: 8:11-cv-01058-EAK-AEP
| USA v. Daniels Assigned to: Judge Elizabeth A. Kovachevich Referred to: Magistrate Judge Anthony E. Porcelli Demand: $164,000 Cause: 28:1345 Default of Student Loan |
Date Filed: 05/13/2011 Date Terminated: 09/22/2011 Jury Demand: None Nature of Suit: 152 Contract: Recovery Student Loan Jurisdiction: U.S. Government Plaintiff |
| Plaintiff | ||
| USA | represented by | I. Randall Gold US Attorney’s Office – FLM Suite 3200 400 N Tampa St Tampa, FL 33602-4798 813/274-6026 Fax: 813/274-6247 Email: FLUDocket.Mailbox@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED |
| V. | ||
| Defendant | ||
| Constance Daniels | represented by | Constance Daniels PO Box 6219 Brandon, FL 33608 PRO SE |
| Date Filed | # | Docket Text |
|---|---|---|
| 05/13/2011 | 1 | COMPLAINT against Constance Daniels filed by USA. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Civil Cover Sheet)(MRH) (Entered: 05/13/2011) |
| 05/13/2011 | 2 | Summons issued as to Constance Daniels. (MRH) (Entered: 05/13/2011) |
| 05/13/2011 | 3 | ORDER regulating the processing of civil recovery actions. Service must be perfected by 09/10/2011. Signed by Deputy Clerk on 5/13/2011. (MRH) (Entered: 05/13/2011) |
| 05/13/2011 | 4 | STANDING ORDER: Filing of documents that exceed twenty-five pages. Signed by Judge Elizabeth A. Kovachevich on 7/15/08. (MRH) (Entered: 05/13/2011) |
| 05/19/2011 | 5 | NOTICE of designation under Local Rule 3.05 – track 1 (CLM) (Entered: 05/19/2011) |
| 05/20/2011 | 6 | CERTIFICATE OF SERVICE re 3 ORDER regulating the processing of civil recovery actions by USA (Gold, I.) Modified on 5/20/2011 (MRH). (Entered: 05/20/2011) |
| 05/25/2011 | 7 | CERTIFICATE OF SERVICE by USA (Notice of Designation Under Local Rule 3.05) (Gold, I.) (Entered: 05/25/2011) |
| 07/06/2011 | 8 | RETURN of service executed on 7/5/11 (Marshal 285) by USA as to Constance Daniels. (MRH) (Entered: 07/06/2011) |
| 07/27/2011 | 9 | MOTION for default judgment against Constance Daniels by USA. (Gold, I.) Modified on 7/27/2011 (MRH). NOTE: TERMINATED. INCORRECT MOTION RELIEF. ATTORNEY NOTIFIED. ATTORNEY TO REFILE. (Entered: 07/27/2011) |
| 07/27/2011 | 10 | MOTION for entry of clerk’s default against Constance Daniels by USA. (Gold, I.) Motions referred to Magistrate Judge Anthony E. Porcelli. (Entered: 07/27/2011) |
| 07/28/2011 | 11 | CLERK’S ENTRY OF DEFAULT as to Constance Daniels. (MRH) (Entered: 07/28/2011) |
| 07/29/2011 | 12 | ANSWER to 1 Complaint by Constance Daniels.(BES) (Entered: 07/29/2011) |
| 08/17/2011 | 13 | MOTION for summary judgment by USA. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Gold, I.) (Entered: 08/17/2011) |
| 09/09/2011 | 14 | ENDORSED ORDER TO SHOW CAUSE as to Constance Daniels.. The plaintiff filed a motion for summary judgment on 8/17/11. The defendant had up to and including 9/3/11 to respond to the motion. To date no response has been filed. Therefore, it is ORDERED that the defendant has up to and including 9/19/11 in which to show cause why the pending motion should not be granted. Signed by Judge Elizabeth A. Kovachevich on 9/9/2011. (SN) (Entered: 09/09/2011) |
| 09/22/2011 | 15 |
ORDER granting 13 Motion for summary judgment in favor of the Plaintiff and against the defendant in the amount of $109,813.74, together with accrued interest in the amount of $54,097.10 as of February 28, 2011, plus interested at the rate of 8.25 percent per annum and a daily rate of $24.80, until the date of judgment; for post-judgment interest, at the legal rate, from the entry of final judgment until the date of payment; and for such other costs of litigation otherwise allowed by law. The Clerk of Court is directed to close the case.. Signed by Judge Elizabeth A. Kovachevich on 9/22/2011. (SN) (Entered: 09/22/2011) |
| 10/12/2011 | 16 | ABSTRACT of judgment as to Constance Daniels. (DMS) (Entered: 10/12/2011) |
Order GRANTING Summary Judgment for $164k Student Loan Debt, Doc. 15, Sep 22, 2011
Daniels v. Select Portfolio Servicing, Inc.
LIF’s Post Reverse and Remand from CA11 Update, July 28, 2024
The case would settle.
(8:18-cv-01652)
District Court, M.D. Florida
NOTICE of settlement Pending by Constance Daniels (Diamond, Kaelyn)
(Entered: 05/10/2023)
60-DAY ORDER OF DISMISSAL re 52 Notice of Pending Resolution. All pending motions, if any, are DENIED as moot. The Clerk is directed to close the file. Signed by Judge James S. Moody, Jr. on 5/10/2023. (SMB)
(Entered: 05/10/2023)
| CLOSED,MEDIATION |
U.S. District Court
Middle District of Florida (Tampa)
CIVIL DOCKET FOR CASE #: 8:18-cv-01652-JSM-CPT
| Daniels v. Select Portfolio Servicing, Inc. Assigned to: Judge James S. Moody, Jr Referred to: Magistrate Judge Christopher P. Tuite
Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 07/11/2018 Date Terminated: 05/10/2023 Jury Demand: Plaintiff Nature of Suit: 190 Contract: Other Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 05/24/2022 | 32 | USCAS OPINION issued by court as to Appellant Constance Daniels. Decision: REVERSED and REMANDED as to 29 Notice of Appeal. EOD: 05/24/22; Mandate to issue at a later date. USCA number: 19-10204-GG. (AG) (Entered: 05/26/2022) |
| 08/31/2022 | 33 | USCA ORDER: Appellant’s motion for appellate attorney’s fees is TRANSFERRED to the district court for its consideration of whether Appellant is entitled to appellate attorney’s fees and the amount of appellate attorney’s fees to which Appellant is entitled, if any, as too 29 Notice of Appeal filed by Constance Daniels. EOD: 08/29/2022; USCA number: 19-10204-GG. (AG) (Entered: 08/31/2022) |
| 08/31/2022 | 34 | MOTION for Attorney Fees by Constance Daniels. (Attachments: # 1 Exhibit A, # 2 Declaration, # 3 Exhibits 1-4 to Declaration, # 4 Exhibit)(AG) (Filed in the 11th Circuit on 8/29/2022) Modified on 8/31/2022 (AG). (Entered: 08/31/2022) |
| 09/01/2022 | 35 | ENDORSED ORDER denying without prejudice 34 Motion for Attorney’s Fees. The record reflects that the Mandate from the Eleventh Circuit has not been issued. The Motion for Attorney’s Fees may be refiled after the mandate is issued and docketed. The Motion shall also be modified to comply with the Court’s local rules. Signed by Judge James S. Moody, Jr on 9/1/2022. (JG) (Entered: 09/01/2022) |
| 10/26/2022 | 36 | MANDATE of USCA: REVERSED AND REMANDED as to 29 Notice of Appeal filed by Constance Daniels. Issued as Mandate: 10/26/22. USCA number: 19-10204-GG. (Attachments: # 1 Bill of Costs, # 2 USCA memo)(JNB) (Entered: 10/26/2022) |
| 10/26/2022 | 37 | ENDORSED ORDER: The Clerk is directed to reopen the case. The parties shall file a joint status report within fourteen days as to how they wish to proceed in light of the Eleventh Circuit’s Opinion. Signed by Judge James S. Moody, Jr. on 10/26/2022. (SMB) (Entered: 10/26/2022) |
| 11/03/2022 | 38 | NOTICE of Appearance by Gabriela N. Timis on behalf of Select Portfolio Servicing, Inc. (Timis, Gabriela) (Entered: 11/03/2022) |
| 11/09/2022 | 39 | STATUS report by Constance Daniels. (Diamond, Kaelyn) (Entered: 11/09/2022) |
| 11/09/2022 | 40 | CASE MANAGEMENT REPORT. (Diamond, Kaelyn) (Entered: 11/09/2022) |
| 11/09/2022 | 41 | MOTION for Attorney Fees as to Entitlement to Appellate Fees and Costs Only by Constance Daniels. (Diamond, Kaelyn) (Entered: 11/09/2022) |
| 11/09/2022 | 42 | ENDORSED ORDER: Defendant shall file its answer on or before November 18, 2022. Signed by Judge James S. Moody, Jr. on 11/9/2022. (SMB) (Entered: 11/09/2022) |
| 11/14/2022 | 43 | CASE MANAGEMENT AND SCHEDULING ORDER: Discovery due by 5/26/2023; Dispositive motions due by 6/30/2023; Pretrial Conference set for TUESDAY, DECEMBER 5, 2023, at 9:00 A.M. in Tampa Courtroom 17 before Judge James S. Moody Jr. Jury Trial set on the JANUARY 2024 trial term in Tampa Courtroom 17 before Judge James S. Moody Jr. Conduct mediation hearing by 6/16/2023. Lead counsel to coordinate dates. Signed by Judge James S. Moody, Jr. on 11/14/2022. (SMB) (Entered: 11/14/2022) |
| 11/18/2022 | 44 | ANSWER and affirmative defenses to 23 Amended Complaint by Select Portfolio Servicing, Inc.(Kohn, Joseph) Modified text on 11/21/2022 (MCB). (Entered: 11/18/2022) |
| 11/23/2022 | 45 | RESPONSE in Opposition re 41 MOTION for Attorney Fees as to Entitlement to Appellate Fees and Costs Only filed by Select Portfolio Servicing, Inc. (Kohn, Joseph) Modified text on 11/28/2022 (SET). (Entered: 11/23/2022) |
| 12/12/2022 | 46 | ENDORSED ORDER denying without prejudice as premature 41 Motion for Attorney Fees for the reasons stated in the Response 45. Signed by Judge James S. Moody, Jr on 12/12/2022. (JG) (Entered: 12/12/2022) |
| 01/04/2023 | 47 | NOTICE of mediation conference/hearing to be held on June 14, 2023 at 1:30 P.M. before Gregory Holder. (Diamond, Kaelyn) (Entered: 01/04/2023) |
| 01/04/2023 | 48 | ORDER appointing Gregory P. Holder, Esq. as mediator in this action. Mediation is scheduled for June 14, 2023, at 1:30 p.m. Signed by Judge James S. Moody, Jr. on 1/4/2023. (SMB) (Entered: 01/04/2023) |
| 03/30/2023 | 49 | STIPULATION /Joint Motion to Extend Case Management Deadlines and Incorporated Memorandum of Law by Constance Daniels. (Diamond, Kaelyn) (Entered: 03/30/2023) |
| 03/31/2023 | 50 | ENDORSED ORDER granting in part 49 Joint Motion to Extend Case Management Deadlines filed by Constance Daniels. The pretrial conference and trial dates remain unchanged. No further extensions of time will be granted absent a showing of good cause. The Court will enter an amended scheduling order separately. Signed by Judge James S. Moody, Jr. on 3/31/2023. (SMB) (Entered: 03/31/2023) |
| 03/31/2023 | 51 | CASE MANAGEMENT AND SCHEDULING ORDER: Discovery due by 7/25/2023; Dispositive motions due by 8/29/2023; Pretrial Conference set for TUESDAY, DECEMBER 5, 2023, at 9:00 A.M. in Tampa Courtroom 17 before Judge James S. Moody Jr. JURY TRIAL is set on the JANUARY 2024 trial term in Tampa Courtroom 17 before Judge James S. Moody Jr. Signed by Judge James S. Moody, Jr. on 3/31/2023. (SMB) (Entered: 03/31/2023) |
| 05/10/2023 | 52 | NOTICE of settlement Pending by Constance Daniels (Diamond, Kaelyn) (Entered: 05/10/2023) |
| 05/10/2023 | 53 | 60-DAY ORDER OF DISMISSAL re 52 Notice of Pending Resolution. All pending motions, if any, are DENIED as moot. The Clerk is directed to close the file. Signed by Judge James S. Moody, Jr. on 5/10/2023. (SMB) (Entered: 05/10/2023) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 07/28/2024 18:04:57 |
JUDGE ESKRIDGE
“ORDER re: By email to the Case Manager, the parties have provided notice of settlement of their dispute.”FIFTH CIRCUIT
“By informing the court that the case had settled, the plaintiff did not “instigate dismissal.” https://t.co/zq7t3oR77E pic.twitter.com/t5p1Tb5p80— lawsinusa (@lawsinusa) July 24, 2024
Daniels v. Select Portfolio Servicing, Inc.
(2018-Present)
(8:18-cv-01652)
District Court, M.D. Florida
ORDER
THIS CAUSE comes before the Court upon Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint (Dkt. 24) and Plaintiff’s Response in Opposition (Dkt. 27).
The Court, having reviewed the motion, response, and being otherwise advised in the premises, concludes that Defendant’s motion should be granted.
Specifically, Plaintiff’s second amended complaint will be dismissed with prejudice because any further amendment is futile.
BACKGROUND
As the Court explained in its prior Order granting Defendant’s motion to dismiss, (see Dkt. 22), Plaintiff Constance Daniels initially filed suit in Florida state court against Defendant Select Portfolio Servicing, Inc. (“SPS”) alleging three Florida claims, which included a claim under Florida’s civil Racketeer Influenced and Corrupt Organizations (“RICO”) Act.
On July 10, 2018, SPS removed the case to this Court based on diversity jurisdiction.
On August 6, 2018, SPS moved to dismiss the entire complaint.
In relevant part, SPS argued that the complaint failed to allege any of the elements of a RICO claim.
On August 27, 2018, Daniels filed an amended complaint, which mooted SPS’s motion to dismiss.
Daniels’ amended complaint alleged two claims: a claim under the Fair Debt Collection Practices Act (“FDCPA”) and a claim under the Florida Consumer Collections Practices Act (“FCCPA”).
Both claims relied on the same allegations.
To summarize, Daniels alleged that SPS had “improperly servic[ed]” her mortgage loan “in reckless disregard” of her consumer rights. (Dkt. 12).
The amended complaint did not attach any mortgage statements.
SPS moved to dismiss Daniels’ amended complaint based on her failure to allege that SPS ever attempted to collect the mortgage balance.
The Court granted SPS’s motion.
The Court noted that the amended complaint did not identify or attach any communication from SPS to Daniels.
The Court also surmised that the dispute was more akin to a dispute about an improper accounting of Daniels’ mortgage.
The Court dismissed the FDCPA and FCCPA claims and provided Daniels a final opportunity to amend her complaint.
Daniels filed a second amended complaint.
The allegations are largely unchanged.
But, significantly, Daniels attaches multiple monthly mortgage statements that SPS sent to her.
She now claims that these mortgage statements constitute debt collection activity under the FDCPA and FCCPA.
SPS’s motion to dismiss argues that the monthly mortgage statements comply with Regulation Z of the Truth in Lending Act (the “TILA”)—they were not communications in connection with the collection of a debt—and therefore do not constitute debt collection activity under the FDCPA and FCCPA.
As explained further below, the Court agrees with SPS’s position based on the Court’s detailed review of the monthly mortgage statements.
Therefore, the second amended complaint will be dismissed with prejudice.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint when it fails to state a claim upon which relief can be granted.
When reviewing a motion to dismiss, a court must accept all factual allegations contained in the complaint as true.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citation omitted).
It must also construe those factual allegations in the light most favorable to the plaintiff.
Hunt v. Aimco Properties, L.P., 814 F.3d 1213, 1221 (11th Cir. 2016) (internal citation omitted).
To withstand a motion to dismiss, the complaint must include “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
A claim has facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Pleadings that offer only “labels and conclusions,” or a “formulaic recitation of the elements of a cause of action,” will not do.
Twombly, 550 U.S. at 555.
DISCUSSION
The FDCPA and FCCPA prohibit debt collectors from using a “false, deceptive, or misleading representation or means in connection with the collection of any debt.”
See e.g. 15 U.S.C. § 1692e (emphasis added);
Fla. Stat. § 559.72 (“In collecting debts, no person shall . . .”) (emphasis added).
It is axiomatic then that the “challenged conduct is related to debt collection” to state a claim under either statute.
Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1216 (11th Cir. 2012);
see also Garrison v. Caliber Home Loans, Inc., 233 F. Supp. 3d 1282, 1286 (M.D. Fla. 2017) (“the FCCPA is a Florida state analogue to the federal FDCPA.”) (internal citations omitted).
“[T]he Eleventh Circuit has not established a bright-line rule” as to what qualifies as “in connection with the collection of any debt.”
Dyer v. Select Portfolio Servicing, Inc., 108 F. Supp. 3d 1278, 1280 (M.D. Fla. 2015).
“As a general principle, the absence of a demand for payment is not dispositive,” and courts should “instead consider whether the overall communication was intended to induce the debtor to settle the debt.”
Wood v. Citibank, N.A., No. 8:14-cv-2819-T-27EAJ, 2015 WL 3561494, at *3 (M.D. Fla. June 5, 2015) (citations omitted).
The second amended complaint attaches multiple monthly mortgage statements.1
Because the communications at issue here are all monthly mortgage statements, a discussion of the TILA is necessary.
The TILA requires SPS, a servicer, to send monthly mortgage statements.
12 C.F.R. § 1026.41. Specifically, 12 C.F.R. § 1026.41(d) requires that servicers provide debtors with detailed monthly mortgage statements containing, among other things: the “amounts due;” the “payment due date;” “the amount of any late payment fee, and the date that fee will be imposed if payment has not been received;” “an explanation of amount due, including a breakdown showing how much, if any, will be applied to principal, interest, and escrow and, if a mortgage loan has multiple payment options, a breakdown of each of the payment options;” “any payment amount past due;” a breakdown of “the total of all payments received since the last statement” and “since the beginning of the current calendar year;” “a list of all transaction activity that occurred since the last statement;” “partial payment information;” “contact information;” and detailed “account information” and “delinquency information.”
The Consumer Financial Protection Bureau (the “CFPB”) has issued a bulletin providing that a
“servicer acting as a debt collector would not be liable under the FDCPA for complying with [monthly mortgage statement] requirements.”
Implementation Guidance for Certain Mortgage Servicing Rules, 10152013 CFPB GUIDANCE, 2013 WL 9001249 (C.F.P.B. Oct. 15, 2013).
Courts have largely followed this guidance.
See, e.g., Jones v. Select Portfolio Servicing, Inc., No. 18-cv-20389, 2018 WL 2316636, at *3 (S.D. Fla. May 2, 2018) (citing 12 C.F.R. § 1026.41(d));
Brown v. Select Portfolio Servicing, Inc., No. 16-62999-CIV, 2017 WL 1157253 (S.D. Fla. Mar. 24, 2017) (noting the guidance and finding that monthly mortgage statements in compliance with the TILA were not debt collection).
The monthly mortgage statements at issue here were in conformity with the TILA requirements.
Moreover, the subject statements were substantially similar to model form H-30(B) provided by Appendix X to Part 1026 of TILA Regulation Z.
See also Jones, 2018 WL 2316636, at *4 (noting the similarities between a monthly mortgage statement and the model form in concluding no debt collection).
Although the monthly mortgage statements may not be identical to model form H-30(B), the differences are not significant deviations.
Notably, the plaintiff in Brown brought a nearly identical lawsuit against SPS.
The court explained in detail why the plaintiff was unable to state a claim under the FDCPA and FCCPA because the monthly mortgage statement was required to be sent pursuant to the TILA.
The complaint in Brown was dismissed with prejudice because “amendment would be futile” given that the basis for the claims was a monthly mortgage statement that was not actionable as a matter of law.
See 2017 WL 1157253, at *2-*4.
Also, the Jones court discussed in detail the numerous prior decisions addressing this issue, including multiple cases from this district that have held that monthly mortgage statements
“are almost categorically not debt collection communications under the FDCPA.”
2018 WL 2316636, at *5 (citing cases).
The particular monthly mortgage statements before the court in Jones were also sent by SPS and were substantively identical to the statements at issue in this case and in Brown.
Most recently, in Mills v. Select Portfolio Servicing, Inc., No. 18-cv-61012- BLOOM/Valle, 2018 WL 5113001 (S.D. Fla. Oct. 19, 2018), the court “agree[d] with the reasoning in Jones and [concluded] that the Mortgage Statements at issue [were] not communications in connection with a collection of a debt.” Id. at *2.
In conclusion, the substance of the monthly mortgage statements at issue in this case is substantially similar to model form H-30(B).
Any minor discrepancies in the language—when taken in the context of the document as an otherwise carbon copy of form H-30(B)—do not take the statements out of the realm of a monthly mortgage statement and into the realm of debt collection communications.
It is therefore ORDERED AND ADJUDGED that:
1. Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint (Dkt.
24) is granted.
2. Plaintiff’s Second Amended Complaint is dismissed with prejudice.
3. The Clerk of Court is directed to close this case and terminate any pending motions as moot.
DONE and ORDERED in Tampa, Florida on December 18, 2018.
Copies furnished to: Counsel/Parties of Record
Judge Bert Jordan’s “Reputation” Warning to New Florida Lawyers
Constance Daniels Admonished by the Florida Bar (2021)
Constance Daniels, P.O. Box 6219, Brandon, admonishment in writing and directed to attend Ethics School effective immediately following a November 24 court order.
(Admitted to practice: 1995)
Daniels failed to act with reasonable diligence and failed to communicate with her client in connection with a dissolution of marriage action.
Daniels also failed to timely respond to the Bar’s formal complaint.
Constance Daniels v. Select Portfolio Servicing, Inc. (2022)
11th Cir., Published Opinion
(19-10204, May 24, 2022)
“A matter of first impression” 14 Years after the great recession and greatest theft of citizens homes in the history of the United States.
It’s quite incredulous how the 11th Circuit selects a Sanctioned Fl. Republican Lawyer, a failed judicial candidate and one who is facing foreclosure, for this ‘landmark’ published opinion in 2022.
Panel Author, Judge Bert Jordan, joined by Judge Brasher with a dissenting opinion by Judge Babs Lagoa
Selective Justice = Ochlocracy and Corruption.
WHY IS THERE NO CHARGES FOR LAWYERS STEALIN’ MILLIONS? https://t.co/gkMkVMboYZ@USAO_NJ @USAO_MDFL @SDFLnews @CityBocaRaton @AGAshleyMoody @flcourts @TheFlaBar @FLBarPresident @SWFLCourts @WSJ @nytimes @reason @MotherJones @ABC— lawsinusa (@lawsinusa) May 26, 2022
11th Circuit revives FDCPA lawsuit over mortgage statement language
How Westlaw is Summarizing the Latest Eleventh Circuit Opinion
(May 26, 2022)
Resolving an issue of first impression, a divided federal appeals panel has held that mortgage servicers can be liable under the Fair Debt Collection Practices Act for inaccuracies in monthly mortgage statements that contain additional debt-collection language.
Daniels v. Select Portfolio Servicing Inc., No. 19-10204, (11th Cir. May 24, 2022).
In a 2-1 decision, the 11th U.S. Circuit Court of Appeals on May 24 reinstated Constance Daniels’ lawsuit against Select Portfolio Servicing Inc., in which she alleges the company used faulty mortgage statements to try to collect payments she did not owe.
Writing for the panel majority, U.S. Circuit Judge Adalberto J. Jordan acknowledged that Select Portfolio was required to issue the mortgage statements under the Truth in Lending Act, 15 U.S.C.A. § 1638.
However, the mortgage statements fell within the scope of the FDCPA’s prohibition on false or misleading representations, 15 U.S.C.A. § 1692e, because they included additional debt-collection language — “this is an attempt to collect a debt” — the opinion said.
Judge Jordan reasoned that “in determining whether a communication is in connection with the collection of a debt, what could be more relevant than a statement in the communication than ‘this is an attempt to collect a debt’?”
U.S. Circuit Judge Barbara Lagao dissented, saying the majority treated the language like “magic words” that could convert an otherwise routine mortgage statement into a communication covered by the FDCPA.
Judge Lagoa also argued that the decision created a circuit split, although the panel majority insisted that the facts of Daniels’ case distinguished it from others in which federal circuit courts seemed to reach a contrary result.
District Court tosses FDCPA claims
Daniels sued Select Portfolio in the U.S. District Court for the Middle District of Florida in July 2018.
According to the suit, Daniels had prevailed in a state court foreclosure action brought by lender Wells Fargo in 2015, with the judge sanctioning Wells Fargo and enforcing an earlier loan modification agreement between the parties.
But Daniels’ mortgage servicer, Select Portfolio, later issued several monthly mortgage statements misstating the principal balance and amount due, and falsely claiming that her loan was in arrears, the suit says.
At least three of the mortgage statements included the sentence, “This is an attempt to collect a debt,” according to the suit.
Daniels accuses Select Portfolio of using false or misleading representations in connection with the collection of a debt, in violation of the FDCA and the Florida Consumer Collection Practices Act, Fla. Stat. Ann. § 559.72.
Select Portfolio moved to dismiss, saying Daniels was attempting hold it liable for issuing mortgage statements that are required under the Truth in Lending Act.
U.S. District Judge James S. Moody Jr. agreed and dismissed the suit in December 2018. Daniels v. Select Portfolio Servs. Inc., No. 18-cv-1652, (M.D. Fla. Dec. 18, 2018).
Judge Moody said that any discrepancies in language between Select Portfolio’s monthly statements and what is required under TILA “do not take the statements out of the realm of a monthly mortgage statement and into the realm of debt collection communications.”
On appeal, Daniels argued that compliance with TILA does not make a mortgage servicer immune from suit under the FDCPA and, even if it did, the monthly statements at issue included language beyond what is necessary under TILA.
Kaelyn S. Diamond and Michael A. Ziegler of the Law Office of Michael A. Ziegler represented Daniels.
Benjamin B. Brown and Joseph T. Kohn of Quarles & Brady LLP represented Select Portfolio.
By Dave Embree
YOUR DONATION(S) WILL HELP US:
• Continue to provide this website, content, resources, community and help center for free to the many homeowners, residents, Texans and as we’ve expanded, people nationwide who need access without a paywall or subscription.
• Help us promote our campaign through marketing, pr, advertising and reaching out to government, law firms and anyone that will listen and can assist.
Thank you for your trust, belief and support in our conviction to help Floridian residents and citizens nationwide take back their freedom. Your Donations and your Voice are so important.
Appellate Circuit
Deutsche Bank and Nationstar Watch as 11th Circuit Discharge the Shotgun Despite Hunt’s Pleadings
There can be no doubt that this is a frivolous appeal and we would not hesitate to order sanctions if appellant had been represented by counsel.
Hunt v. Nationstar Mortg., No. 21-10398
(11th Cir. May 27, 2022)
MAY 27, 2022 | REPUBLISHED BY LIT: MAY 30, 2022
Before ROSENBAUM, GRANT, and MARCUS, Circuit Judges. PER CURIAM:
Christopher M. Hunt, Sr., proceeding pro se, appeals following the district court’s dismissal of his civil complaint arising out of his 2006 purchase of residential property located in Atlanta, Georgia (the “Property”).
Hunt purchased the Property using proceeds from a loan that he eventually defaulted on, which prompted Nationstar Mortgage, LLC (“Nationstar”), then servicer of the loan, to seek a non-judicial foreclosure on the Property.
After filing or being named in a variety of related lawsuits,1 Hunt filed the instant pro se complaint in Georgia state court in June 2020 and named as defendants Nationstar, the Deutsche Bank National Trust
1 See, g., Hunt v. Nationstar Mortg., LLC, 684 F. App’x 938 (11th Cir. 2017) (unpublished) (“Hunt I”);
[MARCUS, ROSENBAUM AND ANDERSON]
Hunt v. Nationstar Mortg., LLC, 779 F. App’x 669 (11th Cir. 2019) (unpublished);
[PRYOR,W., GRANT AND ANDERSON]
Hunt v. Nationstar Mortg., LLC, 782 F. App’x 762 (11th Cir. 2019) (unpublished);
[PRYOR,W., GRANT AND ANDERSON]
Deutsche Bank Tr. Co. Am., as Tr. for Fifteen Piedmont Ctr. v. Hunt, 783 F. App’x 998 (11th Cir. 2019) (unpublished).
[TJOFLAT, JORDAN AND NEWSOM]
Companies (“Deutsche Bank”), and Jay Bray, the CEO of Nationstar.
He alleged that they had committed, inter alia, mortgage fraud and wrongful foreclosure in violation of federal laws, including the Sarbanes-Oxley Act and the Dodd-Frank Act.2
The district court denied a variety of preliminary motions filed by Hunt;
dismissed, without prejudice, the complaint as to defendant Bray for failure to effect proper service;
and
dismissed, with prejudice, the complaint as to Deutsche Bank and Nationstar, because it was a “shotgun” pleading, was barred by res judicata, and failed to state a claim upon which relief could be granted.3
After thorough review, we affirm.
I.
Whether a court has subject-matter jurisdiction, including removal jurisdiction, is a question of law that we review de novo.
See McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1241 (11th Cir. 2013).
We also review de novo a denial of a motion to
2 Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (hereinafter “Sarbanes-Oxley Act”), and the Dodd-Frank Wall Street Reform and Con- sumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010) (hereinafter “Dodd-Frank Act”).
3 Hunt also named Christian Sewing, the Chief Executive Officer (“CEO”) of Deutsche Bank, as a defendant, but he later voluntarily dismissed him.
And after filing the complaint, Hunt sought to add yet another defendant, the Albertelli Law Firm (“Albertelli Law”).
Bray, Sewing and Albertelli Law have not filed any briefs on appeal.
remand to state court. Conn.
State Dental Ass’n v. Anthem Health Plans, 591 F.3d 1337, 1343 (11th Cir. 2009).
A district court’s decision regarding the indispensability of a party is reviewed for abuse of discretion.
United States v. Rigel Ships Agencies, Inc., 432 F.3d 1282, 1291 (11th Cir. 2005).
We will disturb a district court’s refusal to change venue only for a clear abuse of discretion.
Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 255 (11th Cir. 1996).
We also review the district court’s denial of a motion for recusal for abuse of discretion.
Jenkins v. Anton, 922 F.3d 1257, 1271 (11th Cir. 2019).
We review a district court’s grant of a motion to dismiss for insufficient service of process, under Rule 12(b)(5), by applying a de novo standard to questions of law, and a clear error standard to the court’s findings of fact.
Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).
But when a party fails to object to a magistrate judge’s findings or recommendations in a report and recommendation, he “waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions.” 11th Cir. R. 3-1.
Under the circumstances, we review a claim on appeal only “for plain error,” if “necessary in the interests of justice.” Id.
We review the dismissal of a “shotgun” pleading under Rule 8 for abuse of discretion.
Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1294 (11th Cir. 2018).
When appropriate, we will review a district court’s dismissal for failure to state a claim under Rule 12(b)(6) de novo.
Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1056–57 (11th Cir. 2007).
We will also review a dismissal
REWIND 2022-2008 IS STILL HAPPENIN’ – FREQUENTLY – THE GREATEST THEFT OF HOMES IN HISTORY
Deutsche Bank /PHH Ocwen case frozen in time after LIT article was published, highlighting the homeowner’s plea to jurisdiction. https://t.co/IsKUrHZ84n @dwnews @ewarren @RandPaul #txlege— lawsinusa (@lawsinusa) May 29, 2022
based on res judicata de novo.
Jang v. United Techs. Corp., 206 F.3d 1147, 1149 (11th Cir. 2000).
We review de novo a district court’s conclusions on collateral estoppel, but review its legal conclusion that an issue was actually litigated in a prior action for clear error.
Richardson v. Miller, 101 F.3d 665, 667–68 (11th Cir. 1996).
While pro se pleadings are liberally construed, issues not briefed on appeal are normally forfeited and we will generally not consider them.
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
An appellant can abandon a claim by:
(1) making only passing reference to it;
(2) raising it in a perfunctory manner without supporting arguments and authority;
(3) referring to it only in the “statement of the case” or “summary of the argument”;
or
(4) referring to the issue as mere background to the appellant’s main arguments.
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681– 82 (11th Cir. 2014).
In addition, if a district court’s order rested on two or more independent, alternative grounds, the appellant must challenge all of the grounds to succeed on appeal.
See id. at 680.
When an appellant fails to challenge on appeal one of the grounds on which the district court based its judgment, he is deemed to have abandoned any challenge of that ground, and it follows that the judgment is due to be affirmed.
See id.
II.
Liberally construed, Hunt’s brief on appeal seeks to challenge the district court’s decisions:
(1) denying remand of his case to state court
and
denying his request to file an amended complaint adding another defendant, Albertelli Law;
(2) denying his request
to transfer the case;
(3) denying his request to disqualify the judge;
(4) dismissing, without prejudice, his complaint as to defendant Bray for failure to effect proper service;
and
(5) dismissing his complaint, with prejudice, as to Deutsche Bank and Nationstar.
To be sure, Hunt’s arguments about these decisions by the district court are not clearly stated.
But even if we were to assume that he has preserved his arguments on appeal, they fail on the merits.
First, we are unpersuaded by Hunt’s arguments that the district court should have allowed him to file an amended complaint to add another party to the suit, which would have deprived the federal court of jurisdiction, and should have remanded the case to state court.
Federal courts have diversity-of-citizenship jurisdiction when the parties are citizens of different states and the amount in controversy exceeds $75,000.
28 U.S.C. § 1332(a)(1).
A corporation is a citizen of every state where it was incorporated and the one state in which it has its principal place of business.
Daimler AG v. Bauman, 571 U.S. 117, 133, 137 (2014); 28 U.S.C. § 1332(c)(1).
A defendant may remove any civil action brought in a state court to a federal district court that has original jurisdiction over the action.
28 U.S.C. § 1441(a).
The removing party bears the burden of proving that removal jurisdiction exists.
McGee, 719 F.3d at 1241.
Here, the district court did not err in denying Hunt’s motion to remand. As we’ve held in a previous appeal, his motion was based on his belated and fraudulent attempts to join Albertelli Law, in an effort to defeat the district court’s diversity jurisdiction.
See Hunt I, 684 F. App’x. at 942-44.
However, Hunt asserted federal
Post Edited: Homeowner Announces Victory in Florida Against Wrongful Foreclosure, Quietly Affirmed on Appeal https://t.co/hXyc88iJ2o
— LawsInTexas (@lawsintexasusa) January 29, 2022
claims in his complaint, so the district court had jurisdiction in any event.
28 U.S.C. § 1441(a).
Accordingly, the district court correctly denied Hunt’s requests to remand the case and acted within its discretion to deny joinder.
Rigel Ships Agencies, Inc., 432 F.3d at 1291.
We also find no merit to Hunt’s claims that the district court should have transferred venue of his lawsuit.
A district court may transfer a civil action to any other district or division where it may have been brought “for the convenience of the parties and witnesses, and in the interest of justice.”
Robinson, 74 F.3d at 260 (quoting 28 U.S.C. § 1404(a)).
But in this case, the district court did not err because Hunt did not provide any cognizable reason for a transfer.
It appears that Hunt’s transfer request was based on his belief that case law in the United States District Court for the Middle District of Georgia would be more favorable to him – which is not a legitimate reason for transfer.
See 28 U.S.C. § 1404(a).
Similarly, we reject Hunt’s argument that the district court judge should have recused himself.
A judge must sua sponte recuse himself “in any proceeding in which his impartiality might reasonably be questioned” or “
28 U.S.C. § 455(a), (b)(1).
“The test is whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality.”
Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988).
“Ordinarily, a judge’s rulings in the same or a related case may not serve as
the basis for a recusal motion.”
McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir. 1990).
“The judge’s bias must be personal and extrajudicial; it must derive from something other than that which the judge learned by participating in the case.”
Id.
“The exception to this rule is when a judge’s remarks in a judicial context demonstrate such pervasive bias and prejudice that it constitutes bias against a party. Mere friction . . . however, is not enough to demonstrate pervasive bias.”
Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1329 (11th Cir. 2002) (quotation marks omitted).
As the record before us makes clear, no “objective, disinterested, lay observer fully informed of the facts underlying” these circumstances “would entertain a significant doubt about the judge’s impartiality.”
Parker, 855 F.2d at 1524.
Accordingly, the district court did not abuse its discretion in denying Hunt’s request for recusal or disqualification.
Nor do we find any merit to Hunt’s argument that the district court erred in dismissing the complaint against defendant Bray for lack of proper service.
When a federal court is considering the sufficiency of process after removal, it does so by looking to the state law governing process.
See Usatorres v. Marina Mercante Nicaraguenses, S.A., 768 F.2d 1285, 1286 n.1 (11th Cir. 1985).
Georgia law provides that service made “outside the state” of Georgia is to be done “in the same manner as service is made within the state.”
O.C.G.A. § 9-10-94.
Under Georgia law, service on natural persons is to be made “personally, or by leaving copies thereof at the defendant’s dwelling house or usual place of abode with some
person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized . . . to receive service of process.”
O.C.G.A. § 9-11-4(e)(7).
Notably, Hunt does not dispute these proposed findings set forth by the magistrate judge’s Report and Recommendation (“R&R”), that Hunt:
(1) mailed service to Bray;
and
(2) completed “corporate service” on Deutsche Bank, which Hunt asserted was also effective to serve Bray.
11th Cir. R. 3-1.
But, as the district court determined, Georgia law applied here and required personal service in these circumstances.
Albra, 490 F.3d at 829; O.C.G.A. § 9-11-4(e)(7).
Bray therefore was not properly served under Georgia law, and, for that reason, the district court did not err in dis- missing Hunt’s suit without prejudice as to Bray.
Finally, we find no error in the district court’s denial of injunctive relief and its dismissal of Hunt’s complaint against the two remaining defendants, Nationstar and Deutsche Bank.
A district court has the inherent authority to control its docket and ensure the prompt resolution of lawsuits, which includes the ability to dismiss a complaint on “shotgun” pleading grounds.
Shabanets, 878 F.3d at 1295.
We have described four types of “shotgun” com- plaints:
(1) those containing multiple counts where each count adopts all allegations of all preceding counts;
(2) those replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action;
(3) those that do not separate each cause of action or claim for relief into different counts;
and
(4) those asserting multiple claims against multiple defendants without
specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against.
Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1321–23 (11th Cir. 2015).
“Shotgun” pleadings violate Rule 8, which requires “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), by failing to, in one degree or another, give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.
Shabanets, 878 F.3d at 1294–96.
We generally require district courts to allow a litigant at least one chance to remedy any deficiencies before dismissing the complaint with prejudice, where a more carefully drafted complaint might state a claim.
See id.; Silberman v. Miami Dade Transit, 927 F.3d 1123, 1132 (11th Cir. 2019).
But it need not grant leave to amend the complaint when further amendment would be futile.
Silberman, 927 F.3d at 1133.
Under federal law, res judicata, or claim preclusion, bars a subsequent action if
“(1) the prior decision was rendered by a court of competent jurisdiction;
(2) there was a final judgment on the merits;
(3) the parties were identical in both suits;
and
(4) the prior and present causes of action are the same.”
Jang, 206 F.3d at 1148– 49 & n.1 (quotation marks omitted).
We have held that “if a case arises out of the same nucleus of operative facts, or is based upon the same factual predicate, as a former action, the two cases are really the same ‘claim’ or ‘cause of action’ for purposes of res judicata.”
Baloco v. Drummond Co., Inc., 767 F.3d 1229, 1247 (11th
Cir. 2014) (quotation marks omitted and alterations adopted).
“In addition, res judicata applies not only to the precise legal theory presented in the prior case, but to all legal theories and claims arising out of the nucleus of operative fact” that could have been raised in the prior case.
Id. (quotation marks omitted and alterations adopted).
Collateral estoppel, or issue preclusion, “refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided.”
Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984).
Thus, “collateral estoppel is appropriate only when the identical issue has been fully litigated in a prior case.”
In re McWhorter, 887 F.2d 1564, 1567 (11th Cir. 1989) (quotation marks omitted).
“The party seeking to invoke collateral estoppel bears the burden of proving that the necessary elements have been satisfied.”
Id. at 1566.
“[C]hanges in the law after a final judgment [generally] do not prevent the application of res judicata and collateral estoppel, even though the grounds on which the decision was based [may be] subsequently overruled.”
Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499, 1503 (11th Cir. 1984).
To safeguard investors in public companies and restore trust in the financial markets, Congress enacted the Sarbanes-Oxley Act of 2002, 116 Stat. 745.
See S. Rep. No. 107-146, pp. 2–11 (2002).
The Act contains several provisions, including a whistleblower protection provision which prohibits a publicly traded company or its officers from discharging an “employee” for providing information to a supervisory authority about conduct that the employee
“reasonably believes” constitutes a violation of federal laws against mail fraud, wire fraud, bank fraud, securities fraud, any SEC rule or regulation, or any provision of federal law relating to fraud against shareholders.
See 18 U.S.C. § 1514A(a)(1).
The Dodd-Frank Act whistleblower provision provides protection to individuals who provide “information relating to a violation of the securities laws to the” Securities and Exchange Commission (“SEC”).
15 U.S.C. § 78u-6(a)(6).
Thus, “[t]o sue under Dodd-Frank’s anti-retaliation provision, a person must first provide information relating to a violation of the securities laws to the [SEC].”
Dig. Realty Trust, Inc. v. Somers, 138 S. Ct. 767, 772–73 (2018) (quotation marks omitted and alterations adopted).
In his brief on appeal, Hunt does not expressly address the lower court’s “shotgun” pleading determination, and, as a result, the district court’s dismissal of the complaint is due to be affirmed.
Sapuppo, 739 F.3d at 681–82.
But in any event, the district court did not err in finding that his complaint was a “shotgun” pleading.
As the record reflects, the complaint consisted of three numbered paragraphs that spanned paragraphs and pages; failed to isolate claims by defendants;
and largely failed to discuss any facts — thereby falling into several of our identified categories of prohibited “shotgun” pleadings.
Weiland, 792 F.3d at 1321-23.
The district court also was correct that amendment would have been futile.
For one, res judicata and collateral estoppel barred Hunt’s claims for breach of contract and fraud, since Hunt sued the same parties for the same alleged breach of contract and fraud in several prior cases.
See, e.g., Hunt I, 684 F. App’x at 944.4
These decisions were final judgments and were “rendered by a court of competent jurisdiction,” “on the merits,” against the same parties, and “the prior and present causes of action [were] the same.”
Jang, 206 F.3d at 1149.
Moreover, even if some of Hunt’s claims had not been explicitly presented in any of his prior cases, they would still be barred by res judicata because every claim arose from the same facts as each of his prior cases, and he could have raised them in any of the prior proceedings.
Baloco, 767 F.3d at 1247.
Also, despite Hunt’s arguments, there have been no “changes in the law” that would “prevent the application of res judicata and collateral estoppel” in this case.
Precision Air Parts, 736 F.2d at 1503.
In addition, Hunt’s claims under the Sarbanes-Oxley Act and Dodd-Frank Act were futile because they fail to state a claim upon which relief could be granted.
As the record reflects, Hunt did not allege that he was an “employee” under the Sarbanes-Oxley Act, nor that he “provide[d] information relating to a violation of the securities laws to the [SEC]” as required under the Dodd-Frank Act.
4 To the extent that Hunt challenges the district court’s decisions under Fed. R. Civ. P. 60(b), we conclude that he has not identified any “extraordinary circumstances” entitling him to relief, and the district court did not abuse its discretion in this respect.
Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1316 (11th Cir. 2000) (quotation marks omitted).
Somers, 138 S. Ct. at 772–74.
Accordingly, Hunt did not state a cause of action under these statutes, and we affirm.
AFFIRMED.5
5 All of Hunt’s pending motions, which he filed after we imposed a filing restriction on him, are DENIED to the extent they request any relief.
For their part, Nationstar and Deutsche Bank have filed renewed motions for sanctions, requesting monetary sanctions against Hunt for his numerous motions before this Court under 11th Cir. R. 27-4.
Hunt is pro se and we DENY the motions for sanctions at this time.
See Woods v. I.R.S., 3 F.3d 403, 404 (11th Cir. 1993)
(“There can be no doubt that this is a frivolous appeal and we would not hesitate to order sanctions if appellant had been represented by counsel. However, since this suit was filed pro se, we conclude that sanctions would be inappropriate.”).
Although we are reluctant to impose sanctions on pro se appellants, we warn Hunt that our Court has imposed sanctions in circumstances like these, even for pro se litigants, and he is strongly cautioned against bringing any further frivolous motions or claims.
See Ricket v. United States, 773 F.2d 1214, 1216 (11th Cir. 1985)
(imposing sanctions on a pro se appellant who had been warned by the district court that the issues on appeal were frivolous).
YOUR DONATION(S) WILL HELP US:
• Continue to provide this website, content, resources, community and help center for free to the many homeowners, residents, Texans and as we’ve expanded, people nationwide who need access without a paywall or subscription.
• Help us promote our campaign through marketing, pr, advertising and reaching out to government, law firms and anyone that will listen and can assist.
Thank you for your trust, belief and support in our conviction to help Floridian residents and citizens nationwide take back their freedom. Your Donations and your Voice are so important.
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.
Former congresswoman Corrine Brown Update
JUL 28, 2024
On May 17, 2022, Corrine Brown pleaded guilty on the charges to avoid a second trial.
Former Congresswoman Brown was sentenced to the time that she had already served in the custody of the Federal Bureau of Prisons, specifically two years, eight months, and nine days.
Brown was also ordered to pay $62,650.99 in restitution to the Internal Revenue Service.
As of June 2024, the former member of Congress from Northeast Florida is looking for an interest-free payment plan for her federal debt. If accepted by the court, it sets the stage for Brown on the installment plan past her 82nd birthday.
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.
YOUR DONATION(S) WILL HELP US:
• Continue to provide this website, content, resources, community and help center for free to the many homeowners, residents, Texans and as we’ve expanded, people nationwide who need access without a paywall or subscription.
• Help us promote our campaign through marketing, pr, advertising and reaching out to government, law firms and anyone that will listen and can assist.
Thank you for your trust, belief and support in our conviction to help Floridian residents and citizens nationwide take back their freedom. Your Donations and your Voice are so important.
Mortgage Servicer PHH Ocwen: Scammin’ Homeowners Since 2008, with Government and Judicial Approval
A Message for Felon Francis Santa: We Cannot Be Bribed. Stop the Harassment
August 2022 List of Thievin’ and Lyin’ Attorneys In the State of Florida
Where Is He Now? Fraudster Francis Santa Was Sentenced to 88 Months for Conspiracy
Two Florida Foreclosure Lawyers Matt Fuqua and Clay Milton Commit the Most Abhorrent Act
Who is Catalina Azuero, a Liar Lawyer at Goodwin Procter LLP?
Disgraced and Disbarred: Why Are Former Judges and Lawyers Working as Mediators in Our Courts?
Lawyer Calvin Curtis Stole Over $13M Sentenced to 8 Years in Jail. He Wants a Favor from The Florida Bar.
April 2022 Foreclosure Stay Raises Serious Questions as to ‘Divorce Status’ Of Tim and Jennifer Howard
-
Editors Choice3 years agoWhere Is He Now? Fraudster Francis Santa Was Sentenced to 88 Months for Conspiracy
-
Bankruptcy5 years agoTwo Florida Foreclosure Lawyers Matt Fuqua and Clay Milton Commit the Most Abhorrent Act
-
Acceleration4 years agoWho is Catalina Azuero, a Liar Lawyer at Goodwin Procter LLP?
-
Editors Choice3 years agoJudge Barbara Hobbs Son is Arrested for Attempted Murder. Her ExtraJudicial Intervention is Granted
-
Editors Choice2 years agoA Message for Felon Francis Santa: We Cannot Be Bribed. Stop the Harassment
-
Federal Judges3 years agoSelective Justice: Law Firm Assistant Criminally Charged with $3M IOLTA Theft But Lawyers Who Steal Millions Are Not.
-
Eleventh Circuit4 years agoFlorida Insurance Defense Lawyer Curtis Lee Allen Faces Ethics Complaint Filed by the Florida Bar
-
Appellate Circuit4 years agoWho is Liar Lawyer Sabrina Rose-Smith of Goodwin Procter, LLP?
Pingback: The Florida Bar Want Gag Order Against Foreclosure Defense Lawyer Bruce Jacobs for Whistleblowin’ on The Lyin’ Judiciary – LawsInFlorida.com