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This Latest 7th Circuit Result Materially Damages Conman Bill Erbey’s Claims

At the time this suit was filed, Ocwen was a limited liability company whose sole member was Ocwen Mortgage Servicing, a company incorporated in the U.S. Virgin Islands with its principal place of business there.

Published

on

…In His Ongoing St Croix Lawsuit

 “Defendants’ scheme was devious and unlawful: they secretly conspired to spread false accusations about and financially decimate Ocwen/Altisource.* Utilizing various nefarious tactics, including by improperly pressuring trustees and ratings agencies, Defendants first sought to prevent Ocwen from expanding its mortgage business…”

an extract from Bill Erbey’s lawsuit in St. Croix against Blackrock/PIMCO

*Bill Erbey’s $3 Billion dollar fined Ocwen/Altisource

7th Circuit Finds Insurer Has No Duty to Defend Mortgage Servicer Against Robocall Lawsuit

MAR 16, 2021 | REPUBLISHED BY LIT: MAR 17, 2021

A liability insurance carrier that excluded any violation of telecommunications laws from coverage had no duty to defend a loan servicer from a class-action lawsuit that accused it of making harassing robocalls to more than 1 million cell phones.

The 7th Circuit Court of Appeals on Friday affirmed a U.S. District Court’s declaration that Zurich American Insurance Co. did not have to defend Ocwen Mortgage Servicing from the lawsuit. Ocwen settled the action in June 2019 by agreeing pay $21.5 million in damages, plus about $4.7 million for the plaintiff’s attorney fees.

Tracee A. Beecroft says that after she discharged a mortgage debt through bankruptcy, Ocwen, headquartered in the Virgin Islands, called her cell phone 58 times, using an an automated dialing system for at least some of those calls. Beecroft claimed the constant calls were so stressful that she suffered a miscarriage.

In 2015, Beecroft filed a lawsuit in federal court in Minnesota on behalf of herself and other people who received robocalls from Ocwen on their cell phones. The suit was consolidated with another lawsuit filed in Illinois.

Eventually, a U.S. District Court certified a class consisting of the owners of 1,685,757 unique cell phone numbers. The suit alleged that Ocwen had violated the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act.

The TCPA prohibits the use of recorded or artificial voices on calls that are placed to consumers’ cell phones, while the FDCPA bars any calls that are made with an intent to “annoy, abuse or harass.”

Zurich was well aware of those laws and the potential liability they can impose. The carrier excluded damages caused by any violations of the TCPA and the FDCPA from coverage in the commercial general liability policies it issued to Ocwen from 2010 to 2016.

Ocwen, regardless, asked Zurich to defend it shortly after Beecroft filed suit. Instead, Zurich filed a lawsuit seeking a court declaration that it had no duty to defend. U.S. District Judge Charles P. Kocoras ruled in Zurich’s favor.

On appeal, Ocwen argued that while some of the phone calls its agents made to Beecroft may have illegal, not all of them were. Some calls were made to her home phone. Also, prerecorded voices may have been used in some of the calls to Beecroft’s cellphone, but not all, the company’s lawyers argued.

Ocwen said that if there was no violation of law on some of the calls, Zurich had a duty to defend its policyholder against those allegations.

The 7th Circuit disagreed. The appellate panel said the evidence shows that Beecroft had asked Ocwen to stop calling her, meaning that any calls made to her after that were in violation of the FDCPA’s prohibition against harassment. The lawsuit mentions only calls that were in violation of the law, so any calls that were made that did not violate law are not relevant to the suit, the appellate court said.

“Because Zurich had no duty to defend based on the factual allegations in Beecroft’s complaint, we affirm the district court’s judgment,” the opinion concludes.

Ocwen was also accused of violating consumer-protection laws in 2013. The mortgage servicer entered into a consent order with the federal Consumer Financial Protection Bureau agreeing to refund $125 million to 185,000 borrowers whose homes were foreclosed upon and agreed to help underwater borrowers by reducing the principle owed on their loans by $2 billion, the CFPB said in a press release at the time.

More recently, 33 state attorneys general objected to a proposed settlement in a class-action lawsuit that would allow an Ocwen successor, PHH Mortgage Corp., to escape more serious penalties for allegedly collecting illegal fees from homeowners who used its online system to make mortgage payments.

The U.S. Attorney’s Office entered the fray this month, filing a motion on March 3 asking the U.S. District Court in Southern Florida to reject the proposed settlement because it is too generous to the plaintiff’s attorneys without fairly compensating consumers.

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Zurich Am. Ins. Co. v. Ocwen Fin. Corp., No. 19-3052

(7th Cir. Mar. 12, 2021)

Before EASTERBROOK, ROVNER, and WOOD, Circuit Judges. WOOD, Circuit Judge.

Thanks to the diversity jurisdiction, federal courts are often asked to decide questions of insurance coverage;

state law almost always provides the rule of decision in such cases. This is one of them.

Zurich American Insurance sold a policy to Ocwen Financial, a debt-collection company. After a disgruntled consumer sued Ocwen, it tendered the dispute to Zurich, but Zurich asserted that policy exclusions relieved it of any duty to defend. Zurich then asked a federal court to decide whether this was indeed the case. The district court issued a judgment declaring that Zurich had no duty to defend Ocwen in the underlying litigation, and Ocwen has appealed.

We agree with the district court’s reading of the policy and therefore affirm.

I

At the time this suit was filed, Ocwen was a limited liability company whose sole member was Ocwen Mortgage Servicing, a company incorporated in the U.S. Virgin Islands with its principal place of business there. Zurich is incorporated in New York and has its principal place of business in Illinois.

Since the parties were of diverse citizenship and the amount in controversy exceeds $75,000, the district court had jurisdiction under 28 U.S.C. § 1332(a).

Ocwen collects and services debts. In 2015, Tracy A. Beecroft sued Ocwen in federal court in Minnesota for its attempts to collect on a mortgage loan that Beecroft had discharged in bankruptcy. The bankruptcy discharge should have been the end of things, but it was not.

To Beecroft’s displeasure, Ocwen aggressively pursued her for this debt.

The effects were traumatic for Beecroft: she suffered emotional and physical distress, including a stress-induced miscarriage, and she was later denied a mortgage because Ocwen wrongly reported the alleged default to credit agencies. Counts I through III of her complaint relied on the Fair Debt Collection Practices Act (FDCPA) and the Telephone Consumer Protection Act (TCPA); Count IV alleged common-law defamation; and Count V alleged common-law invasion of privacy.

II

From September 2010 to September 2016, Zurich insured Ocwen under a series of commercial general liability policies—a type of policy that entitles the insured to indemnification for various types of tort claims brought against it. The policies were largely identical and covered all damages caused by both “bodily injury” and “personal and advertising injury.” But two provisions in the policies expressly excluded injuries resulting from conduct that violates certain laws.

The first exclusion, for “Recording and Distribution of Material or Information in Violation of Law,” precludes coverage for bodily injury and personal and advertising injury:

directly or indirectly arising out of or based upon any action or omission that violates or is alleged to violate:

The [TCPA] …

The CAN-SPAM Act of 2003 [Pub. L. No. 108-187] [and amendments] …

The Fair Credit Reporting Act [FCRA] … including the Fair and Accurate Credit Transaction Act; or

Any federal, state statute, ordinance or regulation other than the TCPA, CAN-SPAM Act of 2003 or FCRA and their amendments and additions, or any other legal liability, at common law or otherwise, that addresses, prohibits or limits the printing, dissemination, disposal, monitoring, collecting, recording, use of, sending, transmitting, communicating or distribution of material or

The second exclusion, for “Violation of Communication or In- formation Law,” is similar in scope. It excludes bodily injury, property damage, and personal and advertising injury:

resulting from or arising out of any actual or alleged violation of:

the [TCPA], [Driver’s Privacy Protection Act, or DPPA], or [CAN-SPAM Act]; or

any other federal, state, or local statute, regulation or ordinance that imposes liability for the:

Unlawful use of telephone, electronic mail, internet, computer, facsimile machine or other communication or transmission device; or

Unlawful use, collection, dissemination, disclosure or re-disclosure of personal information of any manner

by any insured or on behalf of any insured.

Soon after Beecroft filed her suit, Ocwen asked Zurich to provide a defense pursuant to the insurance agreement. Zurich refused; instead, it filed this declaratory judgment action against Ocwen, arguing that the policy exclusions just noted absolved it of any duty to defend or indemnify Ocwen in the Beecroft lawsuit. See 28 U.S.C. § 2201.

Ocwen counterclaimed that Zurich breached its duty to defend, and Zurich responded with a motion for judgment on the pleadings. In order to resolve that motion, the court had to compare the policy language with the allegations in Beecroft’s complaint.

Beecroft’s initial complaint alleged that Ocwen frequently attempted to contact her as part of a debt-collection effort that included “letters, billing statements and repeated robocalls to [her] cellular phone.” She alleged that Ocwen “made approximately 58 phone calls to [her] cellular telephone using an automated telephone dialing system.”

The complaint described each of those 58 calls with specificity, including the date, time, and the caller ID. On two occasions, Beecroft picked up the phone and told Ocwen to stop calling.

In her first amended complaint, Beecroft expanded the list of the collection methods to “letters, billing statements and repeated robocalls to [her] cellular and home telephone.” (Our emphasis.) Her initial and amended complaints asserted that Ocwen used an autodialer because, on the two times that Beecroft actually answered, there “was a significant delay be- fore an operator would come onto the line and ask for [her]”—an allegedly telltale sign that Ocwen was using an autodialer before connecting her with a live operator.

Beecroft’s second amended complaint added an allegation that “some or all of the call to [her] cellular phone, including but not limited to the [58] calls listed above, were made using:

(a) Premier Global Dialer; (b) an IAT Predictive Dialer; (c) a Davox Dialer; (d) Aspect Dialer; or (e) similar dialing system that has the requisite capacity pursuant to the TCPA.”

In each version of the complaint, Beecroft maintained that Ocwen’s actions “were done unfairly, unlawfully, intentionally, deceptively and absent bona fide error, lawful right, legal defense, legal justification or legal excuse.”

In other parts of the com- plaint, Beecroft alleged that:

Ocwen and its agents intentionally and/or negligently caused emotional harm to [Beecroft] by engaging in highly offensive conduct in the course of collecting this debt, thereby invading and intruding upon [her] right to privacy.

This conduct included over 58 phone calls to [Beecroft’s] cellular telephone and additional calls to Plaintiff’s home phone … .

To similar effect, she asserted that Ocwen

“intentionally and/or negligently interfered, physically or otherwise, with the solitude, seclusion and/or private concerns or affairs of this Plaintiff, namely, by repeatedly and unlawfully calling Plaintiff’s cellular telephone with equipment prohibited by federal law.”

After reviewing the insurance policy and Beecroft’s complaint, the district court concluded that all of the factual allegations in Beecroft’s complaint fell within the scope of the policy exclusions. To the extent that Counts I through III alleged conduct that violated the TCPA, it found that the policy exclusion’s “catch-all” clause swept in the FDCPA as an “other statute” that regulates the communication of information.

Because the FDCPA prohibits calls made with the “intent to annoy, abuse or harass,” the court concluded that even if some of Ocwen’s calls to Beecroft did not violate the TCPA, they still violated the FDCPA because they were made after Beecroft had asked Ocwen to stop calling.

Calling someone after being asked to stop, the court thought, indicated an intent to abuse, harass, or at the very least annoy. The court also held that the common-law claims in Counts IV and V (defamation and invasion of privacy) were excluded because they were based on conduct “arising out of” the same operative facts as the conduct that was alleged to have violated the enumerated statutes.

Based on these findings, the court held that Zurich had no duty to defend Ocwen in the Underlying Litigation.1

This appeal followed. Ocwen does not disagree with the district court’s analysis of Counts I through IV; it argues only that the policy exclusion should not have applied to the common-law invasion-of-privacy claim in Count V. Ocwen contends that the potential for covered liability exists because the Beecroft complaint includes the possibility that (1) some calls were made to Beecroft’s home phone using a live operator, and (2) some calls were not made with the intent to annoy, abuse, or harass. The first of these points would preclude TCPA liabil- ity, because that statute prohibits calls to landlines only if those calls use artificial or prerecorded voices.

The second is designed to knock out the FDCPA theory, because that law does not cover calls that were made negligently, rather than intentionally. According to Ocwen, the Beecroft complaint potentially alleges conduct that neither falls into the enumer- ated statutes nor “arises out of” conduct that is alleged to violate those statutes.

We evaluate a district court’s grant of a motion for judg- ment on the pleadings de novo, viewing “the facts in the com- plaint in the light most favorable to the nonmoving party.” ProLink Holdings Corp. v. Fed. Ins. Co., 688 F.3d 828 (7th Cir. 2012); Landmark Am. Ins. Co. v. Hilger, 838 F.3d 821, 824 (7th Cir. 2016). We may affirm “only if it appears beyond doubt that [Ocwen] cannot prove any facts that would support [its] claim for relief.” Landmark, 838 F.3d at 824. The parties agree that Illinois law applies.

1 Beecroft’s lawsuit was later consolidated with a class action, Keith Snyder v. Ocwen Loan Serv. LLC, No. 1:14-cv-8461, 2019 WL 2103379 (N.D. Ill. May 14, 2019). Final judgment (based on an approved settlement) was entered on July 1, 2019.

III A

A purchaser buys insurance to transfer risk onto an entity that is willing to bear it (for a price). Commercial general lia- bility insurance addresses the risk of tort liability: a commer- cial policyholder—the insured—sleeps easier knowing that if it should be sued in tort, the insurer will pay for its defense and, if need be, indemnify its losses.

An insurer has a duty to defend its insured “unless it is clear from the face of the underlying complaint that the facts alleged do not potentially fall within the policy’s coverage.”

G.M. Sign, Inc. v. State Farm Fire and Cas. Co., 18 N.E.3d 70, 77 (Ill. App. Ct. 2014) . “If any portion of the suit potentially falls within the scope of coverage, the insurer is obligated to de- fend.” Health Care Indus. Liab. Ins. Program v. Momence Mead- ows Nursing Ctr., 566 F.3d 689, 694 (7th Cir. 2009). It is “the factual allegations in the complaint, and not the legal labels a plaintiff uses,” that matter. Id. at 696. And factual allegations “are only important insofar as they point to a theory of recov- ery.” Id. (citing U.S. Fid. & Guar. v. Wilkin Insulation Co., 578 N.E.2d 926, 932 (Ill. 1991) (“[A]n insurer has a duty to defend its insured if any theory of recovery alleges potential cover- age.”)).

When considering whether the facts alleged describe po- tentially covered liability, Illinois courts “liberally construe[]” the policy terms and the allegations in the complaint in the insured’s favor. Pekin Ins. Co. v. XData Sols., Inc., 958 N.E.2d 397, 400 (Ill. App. Ct. 2011). XData added that “[t]his is true even if the allegations are groundless, false, or fraudulent, and even if only one of several theories of recovery alleged in the complaint falls within the potential coverage of the pol- icy.” Id. Accordingly, a decision to excuse an insurer’s duty to defend based on an exclusionary clause in the contract “must be clear and free from doubt.” Evergreen Real Estate Servs., LLC v. Hanover Ins. Co., 142 N.E.3d 880, 887 (Ill. App. Ct. 2019). Reasonable disagreement about the applicability of an exclu- sion must be resolved in favor of the insured. Id.

To prevail against Zurich, Ocwen needs to establish that there are factual allegations in the Beecroft complaint that the policy exclusions do not remove from coverage. Even a single covered factual allegation would suffice to trigger Zurich’s duty to defend. See Title Indus. Assurance Co. v. First Am. Title Ins. Co., 853 F.3d 876, 887 (7th Cir. 2017).

Some of the language in the Zurich policy is straightforward. For example, injuries resulting from violations of the TCPA, CAN-SPAM Act, and FCRA are not covered—full stop. But there is also a catch-all clause that sweeps in more. The “arising out of” language excludes the underlying con- duct that forms the basis of the violation of an enumerated law, even if liability for that underlying conduct might exist under a legal theory that is not expressly mentioned in the policy exclusion (e.g., common-law invasion of privacy).

Stated differently, the “arising out of” phrase presents a “but-for” inquiry: if the plaintiff would not have been injured but for the conduct that violated an enumerated law, then the exclusion applies to all claims flowing from that underlying conduct regardless of the legal theory used. See G.M. Sign, Inc., 18 N.E.3d at 78 (“‘Arising out of’ means ‘originating from,’ ‘having its origin in,’ ‘growing out of,’ and ‘flowing from.’”).

G.M. Sign dealt with an arrangement quite similar to the one before us. In that case, State Farm issued a liability policy that excluded injuries “arising directly or indirectly out of” con- duct that “violates or is alleged to violate” the TCPA, the CAN-SPAM Act, or any other law that regulates the commu- nication of information. Id. at 74. The insured sent unsolicited faxes and was sued for alleged TCPA violations, common-law conversion, and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act. Id. at 73. Because all three counts in the complaint referred only to the factual allegations of faxes that were also alleged to have violated the TCPA, the court held that the common-law conversion claim fell within the policy exclusion. Id. at 79; see also Mesa Labs., Inc. v. Fed. Ins. Co., 436 F. Supp. 3d 1092, 1098–99 (N.D. Ill. 2020) (“[Plain- tiff’s] common law and TCPA counts derive from ‘the very same conduct,’ namely ‘the sending of unsolicited fax adver- tisements …’ triggering the Information Exclusion.”).

B

With these legal standards in mind, we are ready to turn to Ocwen’s three suggested constructions of Beecroft’s com- plaint. Any of these, it argues, allows it to avoid the policy exclusions.

1

The TCPA prohibits people from initiating “any telephone call to any residential line using an artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(B). It does not address calls that do not use artificial or prerecorded voices directed to residential lines.

Ocwen stitches together two components of Beecroft’s complaint to support an argument that it may have placed non-prohibited calls to Beecroft’s home phone.

First, it points to the complaint’s description of its collection efforts, which “include[d]” calls to Beecroft’s home phone (in addi-tion to cellular calls, letters, and billing statements).

Second, it cites the factual allegation in the complaint that Beecroft “answered approximately two calls from Ocwen,” and after answering the phone, “there was a significant delay before an operator would come onto the line and ask for” her. If these two sets of phone calls have any overlap, Ocwen argues, they would establish the potential for alleged behavior that does not violate the TCPA.

Calls to Beecroft’s home landline using a live operator would support her common-law invasion of privacy claim while steering clear of the exclusions.

2

The TCPA also forbids making

“any call … using any automatic telephone dialing system [(ATDS)] or an artificial or prerecorded voice” to “any telephone number assigned to … a cellular phone service.”

47 U.S.C. § 227(b)(1)(A)(iii). A call to Beecroft’s cell phone without using an ATDS or artificial or prerecorded voices would not violate the TCPA.

Ocwen finds this scenario in the complaint by flipping Beecroft’s decision to answer two phone calls on its head. Although Beecroft inferred that Ocwen was using an ATDS because of the delay before an operator came on the line, Ocwen argues that this allegation of ATDS usage was “based on an assumption drawn from a limited sample size” of two out of the 58 alleged phone calls. Further, Ocwen declines to read Beecroft’s allegation that “some or all of the calls to [her] cell phone … were made using [the five specified ATDS systems]” as foreclosing the possibility that some of those calls used no ATDS. Because the conjunction “or” can impose an exclusive choice between “some or all,” and because “some” is not “all,”

Ocwen argues that there might be a residuum of cell phone calls placed with old-fashioned manual dialing, and any such calls did not violate the TCPA.

3

Even if all that were true, though, Ocwen would still have the FDCPA to worry about.

Setting aside the live-operator calls to Beecroft’s home and the manually dialed calls to her cell phone, and assuming that neither violated the TCPA, it remains true that if Ocwen caused “a telephone to ring … repeatedly or continuously with the intent to annoy, abuse, or harass any person at that called number,” it violated the FDCPA. 15 U.S.C. § 1692d(5).

The district court reasoned that because “Beecroft pleaded for the calls to stop … the FDCPA [is] applicable as Ocwen’s calls were meant to annoy or harass.” Zurich Am. Ins. Co. v. Ocwen Fin. Corp., 357 F. Supp. 3d 659, 672 (N.D. Ill. 2018).

Ocwen insists that such an inference is erroneous.

Beecroft’s complaints accuse Ocwen of “intentionally and/or negligently” invading her privacy. Seizing on the word “negligently,” Ocwen argues that this means that at least some calls were not made with the requisite intent for an FDCPA violation.

C

In Illinois civil practice, “[t]he pleader must state the facts essential to his cause of action.” Knox Coll. v. Celotex Corp., 430 N.E.2d 976, 984 (Ill. 1981). “A pleading which merely para- phrases the law, ‘as though … to say that (the pleader’s) case will meet the legal requirements, without stating the facts,’ is insufficient.” Id.

While the duty to defend is not dependent on a complaint’s ability to satisfy a jurisdiction’s pleading standards, Illinois has harmonized the principles animating its fact-pleading rules with those guiding the duty-to-defend inquiry.

When reviewing a complaint to determine whether it alleges covered liability, Illinois courts “give little weight to the legal label that characterizes the underlying allegations.” Lexmark Int’l, Inc. v. Transp. Ins. Co., 761 N.E.2d 1214, 1221 (Ill. App. Ct. 2001).

Even the Federal Rules of Civil Procedure, which use the more liberal notice-pleading standard, require more than “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Our job is to focus on the pleaded facts, not on the labels attached to those facts. See Momence Meadows Nursing Ctr., 566 F.3d at 696.

Fairly read, Beecroft’s complaint does not allege that Ocwen called her home phone using a live operator.

The best Ocwen can do is to point to Paragraph 17 of the complaint, in which Beecroft states that she answered two phone calls with a live operator on the other end, and link it to the complaint’s separate references to calls to her home. But the natural reading of the complaint precludes such a linkage.

In the paragraph immediately before Beecroft’s description of those two phone calls, she alleges:

16. Throughout the months from October 1, 2013, until February 1, 2014, Defendant Ocwen made approximately 58 calls to Plaintiff’s cellular telephone using an automatic telephone dialing system in an attempt to collect the al- leged balance due on the Loan from Plaintiff. The phone calls are detailed in paragraphs 37–95 of this Complaint. The phone calls violated the Telephone Consumer Protec- tion Act and were an invasion of Plaintiff’s privacy.

“The phone calls” identified in the final sentence are the same “phone calls” referenced in the preceding sentence: the 58 calls to her cell phone. Significantly, the complaint contains no other factual allegations of “phone calls” other than those mentioned in paragraphs 37–95. This is the setting against which paragraph 17 must be read. There is no basis for as- suming that the “two phone calls from Ocwen” that Beecroft answered (as alleged in paragraph 17) came from a source other than the set of calls addressed in paragraph 16.

Paragraph 17 confirms this interpretation: its point was not to establish that there was a live operator, but that “there was a significant delay before an operator would come onto the line,” and “[t]his delay indicated that Ocwen used an automated dialer to call Plaintiff.”

Automated dialers are relevant only for establishing TCPA liability for calls made to cellular phones.

Compare 47 U.S.C. § 227(b)(1)(A), with 47 U.S.C. 227(b)(1)(B). Thus, we decline to read paragraph 17 in tandem with the stray references to calls to Beecroft’s home.

Whether Ocwen on one or more occasions did call Beecroft’s “home phone” is not pertinent for the TCPA if Beecroft is not complaining about such a (hypothetical) call in her lawsuit.

And in our view, a fair reading of the complaint reveals that she is not.

Furthermore, it remains true that the complaint contains no factual allegations that would substantiate the existence of calls that Ocwen placed to her home phone.

Ocwen’s assertion that the complaint potentially alleges calls made to Beecroft’s cell phone without the use of ATDS also goes nowhere.

We agree with the point that a sample size of two tells us nothing from a scientific point of view. But the complaint alleges that “some or all” of the calls to Beecroft’s cell phone “were made using” one of four specified ATDS systems or a “similar dialing system that has the requisite capacity pursuant to the TCPA.”

That signals that Beecroft is complaining about the ATDS calls, not a stray direct call.

While Ocwen’s proffered rules of grammatical construction hold true in isolation—no one disputes that “or” is disjunctive and that “some” does not mean “all”— these rules do not override the text taken as a whole. And that text does not say “some but not all” of the calls were placed using an ATDS system. It says that “some or all of the calls to Plaintiff’s cell phone, including but not limited to the [58] calls listed above,” (our emphasis.) were made using the specified ATDS systems.

If the word “some” stood alone (without the “or all”), it would still expressly “includ[e]” all 58 calls made to Beecroft’s cell phone. “Some,” in this context, cannot be read impliedly to omit calls in the group that it specifically purports to classify.

More likely, the word “some” plays a distributive role in relation to the specified ATDS systems Ocwen was using. “Some” of the calls were placed using Global Dialer, “some” were placed using IAT Predictive Dialer, “some” were placed using a Davox Dialer, “some” using Aspect Dialer, and the rest used “a similar dialing system … .”

It is also possible that Ocwen used only two or three of those systems. Either way, the reference to “some” calls serves only to distribute the group of 58 among the five options.

Finally, even if there were calls to Beecroft’s home or cell phone that did not violate the TCPA, Ocwen must still deal with the FDCPA.

Because the FDCPA requires an intent to annoy, abuse, or harass, Ocwen seeks refuge in Beecroft’s vague references to negligent conduct in Count V, where she says that Ocwen “intentionally and/or negligently” invaded her privacy by calling her repeatedly. But these are precisely the types of “legal labels” that Illinois courts refuse to credit without factual elaboration. See G.M. Sign, 18 N.E.3d at 79 (where a complaint is “so bereft of factual allegations” and is so vague that “myriad unpleaded scenarios could fall within its scope,” it cannot trigger a duty to defend).

Count V expressly incorporates by reference the 58 calls to Beecroft’s cell phone (and potential calls to her home). It was from this set of calls that the district court inferred Ocwen’s intent to “annoy or harass” when it continued to call Beecroft after she asked it to stop. “[T]here is no bright line rule for how many calls are sufficient to support an inference of an intent to harass, oppress or abuse.” Holliday v. Virtuoso Sourc- ing Grp., LLC, No. 11-CV-314-JPG-PMF, 2011 WL 5375062, at *2 (S.D. Ill. Nov. 4, 2011). The inference depends on the circumstances. Id.

Several district courts have found the requisite intent when the caller continues to call after being requested to stop. See Light v. Seterus, Inc., 337 F. Supp. 3d 1210 (S.D. Fla. 2018);

Masuda v. Citibank, N.A., 38 F. Supp. 3d 1130 (N.D. Cal. 2014);

Holliday, 2011 WL 5375062, at *2; Arteaga v. Asset Acceptance, LLC, 733 F. Supp. 2d 1218, 1227 (E.D. Cal. 2010) (discussing Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507 (9th Cir. 1994)) (“[A]a debt collector may harass a debtor by continuing to call the debtor after the debtor has requested that the debt collector cease and desist communication.”);

Chiverton v. Fed. Fin. Grp., Inc., 399 F. Supp. 2d 96, 104 (D. Conn. 2005).

The district court did not err in drawing a similar inference from Ocwen’s persistence in the face of Beecroft’s requests that they stop calling her.

IV

Because Zurich had no duty to defend based on the factual allegations in Beecroft’s complaint, we AFFIRM the district court’s judgment.

Appellate Circuit

Law Professor Challenges Eleventh Circuit’s Anomalous Rule as “Sort of Silly”

Under the anomalous rule, courts are immediately reviewing the propriety of the intervention denial. Pretending otherwise is unnecessary.

Published

on

The “Anomalous Rule” for Intervention Appeals

The Eleventh Circuit applied its “anomalous rule” for intervention appeals, which makes jurisdiction turn on the merits of intervention.

That’s sort of silly, and there’s a simpler option.

JAN 19, 2021 | REPUBLISHED BY LIT: JUN 1, 2021

In United States v. 60 Automotive Grilles, the Eleventh Circuit held that it lacked jurisdiction to immediately review a decision denying intervention as of right. That was because the district court correctly denied intervention.

Practically speaking, the court reviewed and affirmed the district court’s decision.

But under the “anomalous rule” that the Eleventh Circuit and other courts apply, appellate jurisdiction in intervention appeals turns on whether the district court correctly denied intervention.

This anomalous rule is one of a few different rules that the circuits use to govern intervention appeals.

All of these rules reach the same practical outcome: would-be intervenors can obtain immediate appellate review of decisions denying intervention.

The rules differ only in how courts describe the review. And the differences are unnecessary and potentially confusing.

It might be far simpler to say that all denials of intervention (or at least all denials of intervention as of right) are immediately appealable, regardless of whether the district court was correct.

The decision in 60 Automotive Grilles

60 Automotive Grilles was a civil forfeiture proceeding involving replacement automotive grilles. Customs officials seized the grilles because they bore counterfeit marks of automakers like Ford, Toyota, Mazda, Honda, and Chrysler. The importer of these grilles moved to dismiss the forfeiture action. Chrysler then sought to intervene as of right to defend its trademark and contractual rights. But the district court held that Chrysler’s interests were adequately represented by the government and denied intervention. Chrysler then appealed.

The Eleventh Circuit applied its “anomalous rule” for jurisdiction over intervention appeals. Under this rule, appellate courts have “provisional jurisdiction” to hear immediate appeals from the denial of intervention. Appellate jurisdiction exists to review denials of intervention as of right so long as the district court erred in denying intervention. And appellate jurisdiction exists to review denials of permissive intervention if the district court clearly abused its discretion. But if the district court was correct in denying intervention, the court of appeals lacks jurisdiction and must dismiss the appeal.

In 60 Automotive Grilles, the Eleventh Circuit concluded that the district court correctly denied intervention. The court could see no difference between what Chrysler sought via intervention and what the Government sought in the forfeiture action. Chrysler was thus adequately represented by an existing party. Because the district court was correct, the Eleventh Circuit lacked jurisdiction over the appeal.

The rules for intervention appeals

But, you might be asking, what’s the point of making appellate jurisdiction turn on the merits of the district court’s intervention decision? As a practical matter, the court of appeals still reviews the propriety of the intervention decision. It ultimately makes little difference whether the court of appeals exercises jurisdiction to affirm the district court’s decision or dismisses the appeal.

Some courts of appeals have nevertheless stuck with this traditional “anomalous rule” for intervention appeals. Others have relaxed it a bit, holding that they have jurisdiction to review denials of intervention as of right (but adhering to the traditional rule for denials of permissive intervention). And still other courts have gone all the way to holding that denials of intervention are always immediately appealable.

Again, all three approaches are effectively the same. And the first two—in which jurisdiction turns on the correctness of the district court’s decision—are odd uses of appellate jurisdiction. Judge Friendly made this point in Levin v. Ruby Trading Corp.:

Since this makes appealability turn on the merits, it is not a very effective or useful limitation of appellate jurisdiction; the propriety of the denial by the district judge must be examined before the appellate court knows whether it has jurisdiction, and the only consequence of the restriction on appealability is that on finding the district judge was right, it will dismiss the appeal rather than affirm.

(Quoted in 7C Wright, Miller & Kane, Federal Practice & Procedure § 1923, available at Westlaw.) So even under the anomalous rule, courts are immediately reviewing the propriety of the intervention denial. Pretending that anything otherwise is going on is unnecessary, awkward, and potentially confusing:

A court that in fact is doing everything it would do if it admitted to having jurisdiction should acknowledge that it is exercising jurisdiction. Not only is it more seemly to speak directly; accurate characterization may have some impact on . . . incidental questions . . . .

15B Wright, Miller & Cooper, Federal Practice & Procedure § 3914.18, available at Westlaw.

A rulemaking solution for intervention appeals

As Wright, Miller & Kane note, “[t]he only obstacle to following the simple rule . . . is that there is a substantial body of authority, including cases from the Supreme Court, making the more elaborate distinctions.” That is, courts might be too far along to clean this up.

Rulemaking thus might be appropriate. Under 28 U.S.C. §§ 1292(e) and 2072(c), the Supreme Court can (via the rulemaking process) create rules governing the timing of appeals. A rule governing intervention appeals might be as simple as the following:

Denials of motions to intervene under Federal Rule of Civil Procedure 24 are final decisions under 28 U.S.C. § 1291.

The normal requirements for time limits for appeals as of right would then apply unequivocally apply to intervention denials.

A rule governing intervention appeals might also take the step—suggested by Wright, Miller & Kane—of prohibiting immediate appeals from the denial of permissive intervention. These denials are reviewed under the deferential clear-abuse-of-discretion standard. And reversals are rare. As Wright, Miller & Kane note, “[t]he hope that the doctrine offers the would-be permissive intervenor is wholly illusory.” But so long as the possibility of reversal exists, parties will still appeal from the denial of permissive intervention. Rejecting these appeals outright thus might be the better rule. And although courts might be too deep into the existing rule to change, rulemakers are not.

United States v. 60 Automotive Grilles, 2020 WL 233450 (11th Cir. Jan. 15, 2020), available at the Eleventh Circuit.

About Bryan Lammon

Everything appellate jurisdiction and procedure

Final Decisions covers appellate jurisdiction and procedure: recent decisions, cert petitions, scholarship, rule changes, and more—including a weekly rundown of notable decisions and developments. It is a source for judges, litigators, and law professors looking to learn more about appellate jurisdiction and procedure, stay current in these areas, and gain insight into future developments.

I’m a law professor at the University of Toledo College of Law. I research federal appellate jurisdiction and procedure, primarily if and when parties can appeal. I have published several articles and essays in this area and have several more in the works. My article Rules, Standards, and Experimentation in Appellate Jurisdiction won the 2014 Howard B. Eisenberg Prize from the American Academy of Appellate Lawyers, which is awarded to the best article in the field of appellate practice and procedure. I have also received several teaching awards, including a University Outstanding Teacher Award, Outstanding Professor Award from the 2015 and 2019 graduating classes at the University of Toledo, the Beth Eisler First Year Teaching Award from the 2019 first-year class, and the Lee Ann Pizzimenti Educational Excellence and Distinguished Service Award.

Before becoming a law professor, I clerked for Judge Edward C. Prado on the United States Court of Appeals for the Fifth Circuit and practiced law at Jones Day in the Issues & Appeals group. I started my teaching career at as a Visiting Associate Professor at Washington University in St. Louis, where I also graduated from law school.

Last updated January 31, 2020.

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

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



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Appellate Circuit

Pro Se’s Appeal Judge Kenneth Marra’s Foreclosure Dismissal to 11th Cir. Drum Roll…

The Dixons allegations are conclusory, they abandoned claims on appeal and it’s futile expecting justice. Judge Marra’s Dismissal Affirmed.

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Judge Andrew L. Brasher Joins Three Committees, The Marra Judicial Defense Committee, The Bankers Club and the Anti-Non Prisoner League.

MAY 29, 2021

ORDERED AND ADJUDGED that the Dixons ‘ Motion Requesting Leave to File a Verified Second Amended Complaint Pursuant to FRCP Rule 15(a), Rule 19(a) & Rule 18(a) [DE 47] is granted in part and denied in part.

The Court is mindful that Plaintiffs are pro se, and is also cognizant of the policy favoring allowing pro se individuals liberal opportunities to amend.

That being said, Plaintiffs will be permitted one more opportunity to amend their complaint, but are instructed that should their claims fail to set forth the factual and legal basis for relief upon further amendment, this case will be dismissed with prejudice, and could result in the imposition of sanctions under Fed. R. Civ. P 11.

With these precautions, Plaintiffs may, on or before July 19, 2019, file a Second Amended Complaint for the following claims only: FDCPA, civil theft, and quiet title. If no pleading is filed within that time, this case will be closed for Plaintiffs failure to prosecute it.

Judge Kenneth A. Marra, S.D. Fl.

Dixon v. Green Tree Servicing, LLC, No. 19-80022-CIV MARRA/MATTHEWMAN, at *31-32 (S.D. Fla. July 3, 2019)

Roy and Blanche Dixon v. Green Tree Servicing (Ditech Financial) and Bank of America, N.A. (BANA) et al.

Before WILSON, LAGOA, and BRASHER, Circuit Judges. PER CURIAM:

Roy J. Dixon and Blanche L. Dixon (the Dixons) appeal pro se from a district court order denying them leave to amend and dismissing their claims with prejudice.

The Dixons filed a complaint against Bank of America, N.A. (BANA), and other defendants in federal district court alleging violations of the Fair Debt Collection Practices Act (FDCPA) and state-law civil theft.

The claims stemmed from BANA’s involvement in a mortgage and foreclosure dispute with the Dixons.

The district court dismissed the complaint with prejudice.

163 Rivera Ct., Royal Palm Beach, Fl.

The court also denied leave to file a third amended complaint, which included a new state-law civil theft claim and an implied damages claim under 42 U.S.C. § 1983.

Previously, the district court had also dismissed a Racketeer Influenced and Corrupt Organizations Act (RICO) claim for failure to state a claim.

The Dixons appealed.

On appeal, the Dixons argue that they properly removed their state foreclosure action to the district court; that the doctrine of fraudulent concealment delayed the running of the statute of limitations for their claims; and that they sufficiently alleged RICO, civil theft, and implied independent damages claims.

BANA filed a motion to strike portions of the Dixons’ appendix to their reply brief, which the Dixons opposed. After briefing was complete, the Dixons filed a motion to supplement the record.

We first consider whether the district court erred by determining that the Dixons had not initiated a removal case.

Then, we consider—with respect to each remaining claim—whether the district court erred by denying the Dixons’ motions to amend their complaint as futile and dismissing their case with prejudice.

Finally, we consider the pending motions.

I. Removal

We begin with the question of removal. A defendant may remove any civil action brought in state court to a federal district court that has original jurisdiction over the action. 28 U.S.C. § 1441(a).

To remove a civil action pending in state court, a defendant must file a notice of removal in the district court “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.” Id. § 1446(a), (b)(1).

If a case was not removable based on the initial pleadings, the defendant may file a notice of removal “within thirty days after receipt by the defendant, [of a document] from which it may first be ascertained that the case is . . . or has become removable.” Id. § 1446(b)(3).

The notice of removal must contain “a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.” Id. § 1446(a).

Once the defendant has complied with the requirements for removal, the action is removed “and the State court shall proceed no further unless and until the case is remanded.” Id. § 1446(d).

We review de novo a district court’s removal jurisdiction. McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1241 (11th Cir. 2013) (per curiam). The removing party bears the burden of proving that removal jurisdiction exists. Id.

Here, the district court properly found that this was not a removal case because the Dixons did not remove a case from state court to federal court.

As the district court explained in its April 29, 2019, order, the Dixons filed an original action in the district court when they filed a complaint alleging two causes of action.

They did not file a notice of removal, make a short and plain statement of the grounds for removal, or file a copy of all process, pleadings, and orders served upon them in the relevant state action. See § 1446(a), (b)(3).

The Dixons attached a “Notice of Removal” to their first amended complaint in the district court. That so-called Notice of Removal does not change the result here because the notice was a nullity.

Accordingly, there was no removal to challenge or remand.

And even if that notice is considered to be a “removal,” it would have been subject to remand upon a motion by a defendant because it was blatantly untimely—it was filed more than three years after the state foreclosure action began.

Therefore, we affirm the district court’s findings on removal.

II. FDCPA and Civil Theft

The district court dismissed the Dixons’ FDCPA claim on the grounds that the Dixons did not allege sufficient facts to support their claim and that their allegations were time barred.

The court similarly dismissed the Dixons’ civil theft claim for failure to allege sufficient facts.

The district court also denied as futile the Dixons’ motion for leave to add a new claim for civil theft against additional defendants:

Fannie Mae, and a law firm and an attorney both involved in the state court action.

The Dixons argue on appeal that the dismissals of the FDCPA and civil claims and denial of the motion to amend constituted an abuse of discretion by the district court.

Specifically, they contend that they sufficiently alleged specific facts to support their claims, and, with respect to the FDCPA claim, the doctrines of fraudulent concealment and equitable tolling tolled the statute of limitations.

We review de novo a district court’s grant of a motion to dismiss for failure to state a claim. Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1221 (11th Cir. 2016). We accept the allegations in the complaint as true and construe them in the light most favorable to the plaintiff. Id. To withstand a motion to dismiss, a plaintiff must plead facts that are sufficient to state a claim that is “plausible on its face.” Id.

A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

A plaintiff must allege “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id.

Thus, “conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).

We generally review for abuse of discretion a district court’s decision to deny leave to amend, but we review de novo the denial of leave to amend on grounds of futility. Boyd v. Warden, Holman Corr. Facility, 856 F.3d 853, 864 (11th Cir. 2017).

“An amendment is considered futile when the claim, as amended, would still be subject to dismissal.” Id.

To state a viable claim for civil theft under Florida law, a plaintiff must allege an injury resulting from the defendant’s violation of Florida’s criminal theft statute, Fla. Stat. § 812.014. United Techs. Corp. v. Mazer, 556 F.3d 1260, 1270 (11th Cir. 2009).

Specifically, a plaintiff must allege facts plausibly showing that the defendants knowingly obtained or used, or endeavored to obtain or use, the plaintiff’s property with “felonious intent” either temporarily or permanently to

(1) deprive the plaintiff of its right to or a benefit from the property or

(2) appropriate the property to the defendant’s own use or to the use of any person not entitled to the property. Id.

An appellant abandons issues that are not “plainly and prominently” raised in his initial brief. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).

Although briefs filed by pro se litigants are liberally construed, issues raised by these litigants for the first time in a reply brief are deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam).

Thus, when a party makes only passing references to an issue in the initial brief and does not devote a discrete section of the brief to the argument of that issue, the party has abandoned that issue on appeal. United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).

We generally will not consider an issue not raised in the district court.

Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).

When a district court’s judgment is based upon multiple, independent grounds, an appellant must convince us that each enumerated ground for the judgment against him is incorrect. Sapuppo, 739 F.3d at 680.

If an appellant does not properly challenge one of the grounds on which the district court based its judgment, the appellant is deemed to have abandoned any challenge to that ground, and we affirm the district court’s judgment. Id.

Here, the Dixons abandoned any argument that they properly stated their FDCPA claim by not raising the issue on appeal.

See Timson, 518 F.3d at 874.

Because this finding was an independent ground for the district court’s decision to dismiss this claim, we affirm the dismissal without reaching the question of whether the Dixons’ FDCPA claim was time barred. See Sapuppo, 739 F.3d at 680.

The Dixons also abandoned any argument that the district court erred in dismissing their civil theft claim against BANA by not plainly and prominently presenting it in their initial brief.1 See id. at 681.

The Dixons made only conclusory, passing references to this issue in their discussion of a separate issue; they did not devote a discrete section of the brief to their argument of this issue. Jernigan, 341 F.3d at 1283 n.8.

As for the Dixons’ motion for leave to add a new claim for civil theft against Fannie Mae, a law firm, and an attorney, the district court properly denied the motion as futile.

The Dixons did not assert sufficient facts to plausibly support this claim, even after multiple attempts and discrete instructions from the district court on how to generally plead a civil theft claim. See Hunt, 814 F.3d at 1221.

Rather, the Dixons recited the elements of a civil theft claim with only conclusory allegations to support their claim. See id.; Davila, 326 F.3d at 1185.

Accordingly, we affirm the district court’s dismissal of the Dixons’ FDCPA and civil theft claims and the court’s denial, as futile, of the Dixons’ motion for leave to amend their complaint to add a new civil theft claim.

1 In their opening brief, the Dixons argue that their “Final Verified Third Amended Complaint” sufficiently alleges a civil theft claim and that “[t]he District Court exercised an abuse of discretion in dismissing the DIXONS Civil Theft claim with prejudice.” While they provide arguments in support of allowing the third amended complaint, that complaint does not bring a civil theft claim against BANA, and they provide no other discussion or argument of their civil theft claim against BANA.

III. RICO

Next we turn to the district court’s denial of the Dixons’ motion for leave to amend their RICO claim as futile. The Dixons argue that they sufficiently pled a RICO claim. They argue that BANA is an enterprise that is separate from its codefendants and that the defendants committed extortion, mail fraud, and wire fraud by selling the Dixons’ home and appropriating the funds to Fannie Mae.

The Dixons also argue that they justifiably relied on the defendants’ unlawful acts of extortion and that their injury was caused by the defendants’ commission of the predicate acts of extortion, mail fraud, and wire fraud.

Finally, the Dixons argue that the district court should have allowed their RICO claim to proceed under the doctrine of fraudulent concealment.

RICO provides for civil and criminal liability against any person who conducts the affairs of an enterprise “through a pattern of racketeering activity or collection of unlawful debt.” See 18 U.S.C. §§ 1962(c), 1964.

“A RICO enterprise exists where a group of persons associates, formally or informally, with the purpose of conducting illegal activity.”

Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1264 (11th Cir. 2004) (internal quotation marks omitted).

However, this enterprise must be distinct from any person named in a RICO claim. United States v. Goldin Indus., Inc., 219 F.3d 1268, 1271 (11th Cir. 2000) (en banc).

To establish a pattern of racketeering activity, plaintiffs must show that: “(1) the defendants committed two or more predicate acts within a ten-year time span; (2) the predicate acts were related to one another; and (3) the predicate acts demonstrated criminal conduct of a continuing nature.” Jackson, 372 F.3d at 1264 (emphasis omitted).

Thus, the plaintiffs “must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989).

“Racketeering activity” includes any act which is indictable under the exhaustive list of criminal offenses outlined in 18 U.S.C. § 1961(1). This list of predicate acts includes extortion, as defined in 18 U.S.C. § 1951; wire fraud, as defined in 18 U.S.C. § 1343; and mail fraud, as defined in 18 U.S.C. § 1341. Id.§ 1961(1).

Under RICO, an “unlawful debt” is defined as a debt incurred in illegal gambling activity or a debt that charges a usurious interest rate. Id. § 1961(6).

Finally, Federal Rule of Civil Procedure 9(b) provides that a party alleging fraud “must state with particularity the circumstances constituting fraud” but that “[m]alice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b).

We have explained:

Rule 9(b) is satisfied if the complaint sets forth (1) precisely what statements were made in what documents or oral representations or what omissions were made, and (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud.

Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1237 (11th Cir. 2008) (internal quotation marks omitted).

Here, the district court properly denied the Dixons’ motion for leave to amend their civil RICO claim as futile.

The Dixons did not allege sufficient facts to support a plausible finding that there was a RICO enterprise, a pattern of racketeering activity, or the collection of an unlawful debt.

The Dixons alleged only conclusory statements that the defendants associated with BANA in furtherance of an illegal scheme; that is not sufficient to show the existence of a RICO enterprise. See Davila, 326 F.3d at 1185.

Their general allegations of mail fraud and wire fraud also do not satisfy the heightened Rule 9(b) pleading requirements. See Mizzaro, 544 F.3d at 1237. Additionally, BANA could not be a RICO enterprise because it was a party named in the RICO claim. See Goldin Indus., Inc., 219 F.3d at 1271.

Even if they amended their complaint, the Dixons’ RICO claim would still be subject to dismissal because they alleged only the loss of their own home—they did not plausibly allege criminal conduct of a continuing nature. See Jackson, 372

F.3d at 1264. Accordingly, we affirm the district court’s denial of the Dixons’ motion for leave to amend their civil RICO claim as futile.

IV. Implied Damages

The district court also denied the Dixons’ motion for leave to add an implied independent damages claim under 42 U.S.C. § 1983 as futile.

On appeal, the Dixons argue that they sufficiently alleged the claim against the attorneys involved in their state foreclosure action.

To state a claim under § 1983, a plaintiff must allege sufficient facts to establish that he or she was “deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999).

A private party may be considered a state actor for purposes of § 1983 only in “rare circumstances.”

Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001).

“[O]ne who has obtained a state court order or judgment is not engaged in state action merely because it used the state court legal process.”

Cobb v. Ga. Power Co., 757 F.2d 1248, 1251 (11th Cir. 1985).

Here, to the extent that the Dixons sought to assert an independent claim for damages under § 1983, the district court properly denied them leave to add the claim.

The conduct of the attorneys involved in the Dixons’ state foreclosure action in obtaining a state-law judgment against the Dixons does not constitute state action, and the Dixons did not sufficiently assert that these attorneys were acting under the color of state law.

Accordingly, we affirm the district court’s denial of the Dixons’ motion for leave to add an implied independent damages claim as futile.

V. Motions

Finally, we address the pending motions in this case.

A. Motion to Strike

BANA moved to strike portions of the Dixons’ reply brief appendix, specifically Appendices C, D, E, and G. The Dixons object only to the striking of Appendix G, which contains the transcript of a district court hearing in which the parties argued various motions, including the Dixons’ motion for leave to file a second amended complaint.

BANA argues that we should strike Appendix G because the Dixons never presented the transcript to the district court or made it part of the record, nor did they obtain leave from this Court before filing the document.

Appellants have the duty to order any necessary transcripts or to file a certificate stating that no transcript will be ordered within 14 days after filing the notice of appeal. Fed. R. App. P. 10(b)(1); 11th Cir. R. 10-1.

“We rarely supplement the record to include material that was not before the district court, but we have the equitable power to do so if it is in the interests of justice.”

Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 n.4 (11th Cir. 2003).
We have refused to consider supplemental material provided by a litigant who did not first request leave of court or move to supplement the record. See Ross v. Kemp, 785 F.2d 1467, 1474–75 (11th Cir. 1986).

We grant BANA’s motion to strike the appendices.

The Dixons certified that no transcripts would be ordered for their appeal and did not seek leave or move to supplement the record before filing supplemental materials with their reply brief.

See Fed. R. App. P. 10(b)(1); 11th Cir. R. 10-1; see also Ross, 785 F.2d at 1475.

Even if this transcript were properly submitted, it would not be dispositive because it does not show that the district court erred in denying the Dixons’ motion to quash the state foreclosure proceedings.

Accordingly, we grant BANA’s motion to strike Appendices C, D, E, and G to the Dixons’ reply brief.

B. Motion to Supplement

On February 22, 2021, the Dixons filed “Appellants’ Motion Seeking Leave to Supplement the Record on Appeal with Appellants’ March 27, 2019 Motion Seeking to Quash and/or an Injunction Against the State Court from Continuing with the Foreclosure Proceedings Without Jurisdiction.”
The filing attaches as an exhibit the motion to quash at issue, which appears on the district court docket at Docket Entry 36. The Dixons do not provide any basis for the request.

On February 26, 2021, BANA filed a response to the Dixons’ motion stating that it is “facially deficient” in that it articulates no ground or legal basis for supplementing the record. BANA also states that the document the Dixons seek to add to the record already is part of the record on appeal.

BANA is correct that the document the Dixons seek to add to the record already is part of the record on appeal. Thus, it is unnecessary to supplement the record with the document.

Additionally, while the motion’s title suggests that the Dixons also request “an Injunction Against the State Court from Continuing with the Foreclosure Proceedings Without Jurisdiction,” the body of the motion includes no such request and offers no support in favor of such a request.

Thus, the Dixons have not shown that an injunction is warranted. See Fed. R. App. P. 27(a)(2)(A) (“A motion must state with particularity the grounds for the motion, the relief sought, and the legal argument necessary to support it.”).

Accordingly, we deny the motion.

AFFIRMED IN PART, GRANTED IN PART, DENIED IN PART.

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