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Two Florida Foreclosure Lawyers Matt Fuqua and Clay Milton Commit the Most Abhorrent Act

…of Ethical Abuse Against Homeowner and Tenant(s); And They Train Government Officials on Ethics. Illegally Locked Out of Her Home for 94 days, Stalked and a Gun Pointed at their Person, this Homeowner was Brutally Treated as a result of Over-Zealous Advocacy by Unethical Attorneys Who Lied in Court Filings for Financial Greed.

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LIT UPDATE 26th MAY 2020

After LIT highlighted this case, the 2 rambo lawyers, A Clay Milton and  Harry Matthew Fuqua of Fuqua and Milton, P.A., Fl., had failed to pay the sanctions and indeed even turn up for the first hearing. Then it went deathly quiet. We’ve returned some 8 month later to find out if these rogue housejacking lawyers were suspended, reported to the Florida Bar of paid the $45k sanctions. Apparently and in keeping with the judiciary in 2020, the case went cold, has recently been closed and no action taken against these two despicable lawyers. The docket is structured so that LIT cannot find out any further information, it was effectively sealed after our published article gained the notice of the parties and the court(s). Another day, another coverup in Florida.

LIT UPDATE 4TH FEBRUARY 2020

The last order on this case was on 19 September 2019 wherein there was a response due in 21 days. Nothing has happened, the case has had zero movement since LIT shone the light on these despicable foreclosure lawyers, living it large and treating homeowners with contempt. We’d like to know why it’s in a state of limbo for over 4 months.

Screenshot from pacer update on 4th Feb, 2020 shows the same docket status.

Illegally Locked Out of Her Home for 94 days, Stalked and a Gun Pointed at their Person, this Homeowner was Brutally Treated as a result of “Over-Zealous Advocacy by Unethical Attorneys Who Lied in Court Filings for Financial Greed”

Ms. Dalia A. Harrison has been engaged in a years-long battle with Deltona over property in Chipley, Florida (“Chipley Property”) that she claims as her homestead. At some point Ms. Harrison stopped making payments to Deltona, so Deltona filed suit to foreclose on the Chipley Property on June 18, 2015. Ms. Harrison filed the petition commencing this case one day before the Chipley Property was scheduled to be sold at foreclosure by the Clerk of Court, Washington County, Florida pursuant to a Final Judgment of Foreclosure (“FJ”).

This is Ms. Harrison’s third bankruptcy case since October of 2016. Ms. Harrison filed two prior bankruptcy cases in the Northern District of Georgia; the first on October 21, 2016 and the second on July 26, 2017. Ms. Harrison’s first case (“First Georgia Case”) was dismissed on February 2, 2017 (more than twelve (12) months prior to the instant case), and her second case (“Second Georgia Case”) was dismissed on December 7, 2017. In both Georgia cases, Ms. Harrison filed Chapter 13 plans and made plan payments. Neither of Debtor’s Georgia cases was dismissed because Ms. Harrison failed to obey court orders or file required documents.

Ms. Harrison’s first two cases stayed hearings on Deltona’s motion for summary judgment in the foreclosure case. Deltona obtained its FJ after Ms. Harrison’s Second Georgia Case was dismissed. But for Deltona’s and its state and bankruptcy counsel’s actions, the petition commencing the current case should have stayed the foreclosure sale.

On the same day that she filed the petition commencing this case Ms. Harrison filed a motion to extend the automatic stay which the Court set for hearing on April 12, 2018.

Deltona’s bankruptcy counsel filed an objection to the motion to extend stay on April 10, 2018 and argued against the motion at the April 12 hearing. Based on Debtor’s testimony at that hearing the Court overruled Deltona’s objection and entered an order extending the stay for an additional sixty (60) days.

Debtor filed a Chapter 13 plan on April 20, 2018.16 From that date through June 14, 2018, when Debtor filed the Sanctions Motion, the record activity in this case was routine.

In response to the Sanctions Motion and OTSC, Deltona conceded that it violated the stay by continuing with the foreclosure sale. Its bankruptcy counsel argued that this stay violation was not willful and should not be sanctioned because Deltona’s state court attorney made a mistake of law.

Neither Deltona nor its bankruptcy counsel took any action at this time to vacate the foreclosure sale.

A.  Deltona’s stay violations.

Immediately after filing this case Ms. Harrison drove from Tallahassee to Washington County, Florida, where she delivered copies of her Chapter 13 petition to Deltona’s state court counsel and the Washington County Clerk of Court, and advised them verbally and via email that she had filed this case and that the automatic stay was in place.

The foreclosure sale.

The next day, March 27, 2018, Ms. Harrison waited in the lobby of the Washington County Clerk’s office before the scheduled foreclosure sale where she tried, to no avail, to convince Deputy Clerk Donjuan to cancel the sale. Deputy Clerk Donjuan told Ms. Harrison that she had to bring the issue to the attention of the presiding judge, so Ms. Harrison went to the Circuit Judge’s chambers.

Meanwhile, Deltona’s state court counsel convinced the Washington County Clerk of Court to disregard Ms. Harrison’s urgings that the sale was stayed, so the Clerk conducted the sale in Ms. Harrison’s absence. Deltona was the “successful” and only bidder.

Ms. Harrison testified that when she returned to the Clerk’s office and was told the sale had taken place she sat there and cried because she believed she had done all she could to stop the sale.

Deltona called Deputy Clerk Donjuan to testify on its behalf at the Final Hearing. In describing her interactions with Ms. Harrison, Deputy Clerk Donjuan: did not deny, but could not recall, telling Ms. Harrison to go to the presiding judge’s chambers to try to stop the sale; conceded that Ms. Harrison was upset but did not recall Ms. Harrison crying; and admitted that after the foreclosure sale Ms. Harrison repeatedly declared that it was not right that the Clerk went through with foreclosure.

In an apparent attempt to discredit some of Ms. Harrison’s testimony, Deltona introduced into evidence and played a portion of the security camera video of the Washington County Clerk of Court’s lobby before, during, and after the foreclosure sale.

That video shows:

  • Ms. Harrison enters the Clerk’s office lobby before the scheduled time for the foreclosure sale, walks over to Deputy Clerk Donjuan, and shows her some documents.
  • After roughly one minute of conversation, Deputy Clerk Donjuan exits the room. During Deputy Clerk Donjuan’s absence, Ms. Harrison is shaking her head, pacing constantly, and peering out of the window.
  • Ms. Harrison then exits the lobby. Approximately two minutes later Deputy Clerk Donjuan returns, then leaves the lobby again, and returns.
  • The sale then occurs with Ms. Harrison not present.
  • Ms. Harrison returns to the Clerk’s office lobby after the sale, and speaks with and shows documents to Deputy Clerk Donjuan. Deputy Clerk Donjuan then exits for the final time. At this point, Ms. Harrison is visibly upset: throwing her head back, shaking her head, walking in circles around the lobby, and appearing to try to speak to a Clerk’s Office employee seated in a bank teller style window.

Deltona’s continuous possession of, and actions to prevent Ms Harrison from accessing, the Chipley Property for approximately ninety-four (94) days post-petition.

Ten (10) days after the foreclosure sale the Washington County Clerk of Court issued a certificate of title to the Chipley Property to Deltona. On the same day, Deltona’s bankruptcy counsel filed their first Notice of Appearance in this case. Deltona then had its employee change the locks and put up “no trespassing” signs on the home. Meanwhile, Ms. Harrison continued contacting Deltona’s bankruptcy counsel, complaining about the sale in violation of the stay.

Ms. Harrison remained locked out of the Chipley Property from March 27 through June 29, 2018. This lockout ended the day after the initial OTSC Hearing at which Deltona and its bankruptcy counsel finally admitted in open court that Ms. Harrison had no access to the Chipley Property and agreed to give her a set of keys.

Damage to Ms. Harrison’s Chipley Property.

Deltona turned off the utilities after evicting a third-party tenant and left the Chipley Property vacant and without air conditioning for a considerable period. After Deltona admitted to the stay violations and gave Ms. Harrison access to the Chipley Property, Ms. Harrison traveled to the Chipley Property often, sleeping in her car or staying with a friend or relative. Upon assessing the damage, which she testified was extensive, Ms. Harrison began repairs including painting and replacing flooring.

Deltona called Mr. Worthington, denominated as its “man on the ground,” to testify on its behalf. After the foreclosure sale, Mr. Worthington went to the Chipley Property, drilled out the lock and deadbolt, and placed a new handle set on the front door. He testified that the front door to the house and the garage door were damaged.

Deltona’s harassment and stalking of Ms. Harrison.

Ms. Harrison testified that during her trips to the Chipley Property she saw Mr. Worthington drive by numerous times. On cross-examination Ms. Harrison asked Mr. Worthington if he had been “stalking” her.

Visibly displeased with that question, Mr. Worthington insisted that he had never “stalked” Ms. Harrison. But, on further questioning Mr. Worthington admitted that even after Deltona gave Ms. Harrison access to the Chipley Property in late June, at Deltona’s request he went by on numerous occasions to see if the house was being disturbed and to note if anyone was there.

This testimony is consistent with testimony given by Tracy Williams, Deltona’s Assistant Treasurer, at the OTSC Hearing:

[Mr. Worthington is] our on-site employee who does maintenance on our rentals and our inventory houses . . . I believe on almost a daily basis since May 1 [Mr. Worthington has driven by the house] . . . 72 times.

Ms. Williams calculated that of these seventy-two (72) trips, thirteen (13) took place after Deltona finally gave Ms. Harrison access to the Chipley property.

Ms. Harrison’s late-night confrontation with law enforcement at the Chipley Property.

Deltona called Deputy Sheriff Landon Fries to testify on its behalf at the Final Hearing. According to Deputy Fries, one evening in late June of 2018, his dispatcher sent him to the Chipley Property as a result of a report that a suspicious person was on the premises of a “foreclosed property.”

According to Deputy Fries, upon arrival at the Chipley Property he pulled into Ms. Harrison’s driveway at a “normal” rate of speed with his headlights, not his emergency lights, on.

Deputy Fries asked Ms. Harrison for identification and what business she had on the property; he denied that he drew his weapon. According to Deputy Fries, once he verified that Ms. Harrison’s driver’s license address matched that of the Chipley Property, he left.

Ms. Harrison recalled this incident differently.

According to Ms. Harrison she and her 62-year old mother were in the driveway unloading groceries after dark when a law enforcement officer pulled very quickly into the driveway with his “lights” on, and got out of his car with his flashlight in her face.

Ms. Harrison testified that the officer had his gun drawn, accused her and her mother of breaking and entering, required her to show proof of ownership of the property, and accused her of kicking down the front door to the home.

Ms. Harrison described Deputy Fries as confrontational and this incident as extremely distressing to both her and her mother. She testified that at the time she believed that she “could have been killed” at her own home.

Deltona’s bankruptcy counsel’s actions during this case.

The post-petition foreclosure sale by Deltona was bad enough; what Deltona’s bankruptcy counsel did after that shocks the conscience.

Deltona’s  bankruptcy  counsel  ignored  Debtor’s  legitimate complaints that Deltona had violated the stay.

Within four (4) days of the foreclosure sale, Ms. Harrison called and spoke with one of Deltona’s bankruptcy counsel, H. Matthew Fuqua.

According to Ms. Harrison, Mr. Fuqua did not acknowledge that Deltona had violated the automatic stay nor did he offer to correct the situation.

Deltona’s bankruptcy counsel made misleading and false representations to this Court.

When Deltona opposed Ms. Harrison’s motion to extend the automatic stay, its bankruptcy counsel did not advise the Court, in writing or at the hearing, that the sale had already taken place or that Deltona had locked Ms. Harrison out of the Chipley Property. Instead, Deltona’s bankruptcy counsel wrote that Deltona sought to “proceed” with the foreclosure:

[I]t is the Debtor’s sole intention in filing bankruptcy to frustrate Deltona’s right to foreclose on Ms. Harrison’s property in Washington County, Florida and to delay and impede Deltona’s right to proceed with its State Court right to relief.

Ms. Harrison’s sole intention in filing for bankruptcy relief is to unfairly thwart Deltona’s efforts to proceed with its foreclosure case.

Rather than inform the Court of the highly relevant fact that Deltona had completed the sale post-petition, Deltona’s bankruptcy counsel argued: 1) that the stay should not be extended because Ms. Harrison filed this case in bad faith; and, 2) alternatively, that there was no stay. In support of this second argument, Deltona’s bankruptcy counsel wrote:

The Order granting Deltona relief from stay entered in the [Second Georgia Case] was granted pursuant to the provisions of 11 U.S.C. § 362(d)(4) [sic] and the current proceedings [sic] were filed within 2 years after the date of entry of such order. As such, the automatic stay imposed by 11 U.S.C. § 362(a) [sic] upon the filing of the current proceedings [sic] was annulled and there is not currently an automatic stay in place that would prohibit Deltona from proceeding with its In Rem [sic] foreclosure action against the Debtor’s real property located in Washington County, Florida.

Every fact stated in the above paragraph is false.

…. read the Judges’ full order in the PDF link below…

UPDATE (Well, Kinda) : Sep 19, 2019 Proceeding Memo: Hearing Held (No Doc) – Update on Oct. 16, 2019 – NO MOVEMENT ON DOCKET AT ALL….Silence in the Court…

DebtEd, PRO_SE, PRVDISM, Repeat, DISMISSED_w/PREJUD

 

U.S. Bankruptcy Court
Northern District of Florida (Panama City)
Bankruptcy Petition #: 18-50089-KKS

Assigned to: Judge Karen K. Specie
Chapter 13
Voluntary
Asset

 

Debtor disposition:  Dismissed for Other Reason

Case Manager:   Jestin Hawkins
Date filed:   03/26/2018
Debtor dismissed:   09/06/2018
341 meeting:   08/30/2018
Deadline for filing claims:   06/04/2018
Deadline for filing claims (govt.):   09/24/2018

 

Debtor
Dahlia Andreen Harrison
5316 Cayuga Ct
Lithonia, GA 30038
Washington-FL
347-512-2540
SSN / ITIN: xxx-xx-6378
Tax ID / EIN: 95-8761023, 36-4613187
aka Dahlia Andreen McCarty
dba Rockwealth & Associates, LLC
represented by Dahlia Andreen Harrison
PRO SE
Trustee
Leigh D. Hart
P.O. Box 646
Tallahassee, FL 32302
850-681-2734
represented by Leigh D. Hart
P.O. Box 646
Tallahassee, FL 32302
850-681-2734
Fax : 850-681-3920
Email: ldhdock@earthlink.net
U.S. Trustee
United States Trustee
110 E. Park Avenue
Suite 128
Tallahassee, FL 32301
850-942-1660

 

Filing Date # Docket Text
09/19/2019 245 Hearing Held on 9/18/19: (Re: 229 Memorandum Opinion.)- Court’s Ruling Announced: 21 days to Submit Draft Proposed Order re: Rule 9011 as Announced; Appear.: Killian/Niles for Fuqua and Milton; CR: Kimberly Bartholomew (Phipps Rpting., 888-811-3408). (Weems, Janet) (Entered: 09/19/2019)

Attorneys train elected officials on ethics

Attorneys H. Matthew Fuqua, of Fuqua & Milton P.A., and Robert E. Larkin*, of Allen, Norton and Blue, presented an ethics training session for elected governmental officials on Thursday, July 14, in Marianna.

*LIT Disclaimer – Larkin is not involved in the foreclosure case and sanctions discussed herein, only the firm of Fuqua & Milton

Fuqua

Milton

Local government officials and constitutional officers are mandated by Florida Statute 112.3142 to receive four hours of ethics training every year. The seminar was sponsored by Carr, Riggs and Ingram, CPAs and was held at the Jackson County Ag complex on Penn Avenue.

This was the second year Fuqua and Larkin presented the seminar, which is offered as a public service to elected government officials. Covered topics included Public Records, Open Meetings, Voting Conflicts, Nepotism and Gifts.

Local government officials spanning the area from Holmes County to Gulf County were in attendance.

chief-judge-specie.fw_

KAREN K. SPECIE
Chief U. S. Bankruptcy Judge

Sanctions these 2 lawyers $45,500 for illegally evicting homeowner who was without a residence for several months as a result.

High-Living Lawyers Fail to Pay $45,500 Sanctions within 7 Days

These 2 Rambo and Rogue Lawyers have been Ordered to attend court on Sept 10, 2019. We hope there’s a full gallery of journalists in attendance and citizens and members of the public go to support Ms. Harrison.

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.



Acceleration

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

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

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FL Honest Lending Report

REPUBLISHED BY LIT: JUL 5, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.



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Bankruptcy

Thievin’ Miami Attorney Steals $386,000 and Not Only is He Not in Jail, He’s Still an Active Fl. Lawyer

In the first case attorney Cesar Dominguez stole $186,000 in escrow and in the second case he stole $200,000 from his law firm’s escrow account.

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Foreclosure Defense and Bankruptcy Lawyer Who Steals $386,000 is Not in Jail but Ready to Help Strugglin’ Homeowners

However, in a very recent Florida Bar complaint, Attorney Joseph Morburger is suspended for apparently pinchin’ only a net $19k.

Now, whether it’s $19k or $9, theft is theft.

But when it’s $386,000 and you are not suspended or reported for the crime of theft, then only one conclusion can be reasonable.

Clearly, it’s who you know again at the insidious Florida Bar which will determine your fate.

Attorney Morburger Suspended by Florida Supreme Court for $19k Theft.

APR 30, 2020 | REPUBLISHED BY LIT: JUN 19, 2021

COMPLAINT

The Florida Bar, Complainant, files this Complaint against Cesar J Dominguez, the respondent, pursuant to the Rules Regulating The Florida Bar and alleges:

1. Respondent is and was, at all times mentioned herein, a member of The Florida Bar, admitted on May 21, 1999, and he is subject to the jurisdiction of the Supreme Court of Florida.

2. Respondent resided and practiced law in Miami-Dade County, Florida, at all times material to this complaint.

3. The Eleventh Judicial Circuit Grievance Committee “A” found probable cause to file this complaint pursuant to Rule 3-7.4, of the Rules Regulating The Florida Bar, and this complaint has been approved by the presiding member of that committee.

THE FLORIDA BAR FILE NO. 2019-70,193

4. Respondent entered into an escrow agreement with LBTP Investments, LLC (seller) and Parcours Invest LLC (buyer) to hold $186,000.00 in escrow pending certain release conditions on or about July 15, 2016.

5. Respondent’s law firm, Law Offices of Dominguez and Associates, P.A., was listed as the escrow agent.

6. Respondent signed the agreement on behalf of the Law Office of Dominguez and Associates, P.A. acknowledging acceptance and receipt of the funds to be held in escrow in accordance with the terms and conditions of the Settlement Agreement and Escrow Agreement.

7. The release conditions required the $186,000.00 be held in escrow until the seller delivered one of the following:

a. A written and duly executed release and hold harmless instrument from Robert Ingham and his brokerage firm releasing Buyer and its agents from any and all liability related to any compensation, fees or commission and other monies that may be due Ingham under the Contract or related to the Property;

or

b. A final non-appealable Court Order declaring that Ingham and his brokerage firm is not entitled to a commission/fee or other compensation or monies related to the Property.

8. Respondent received $186,000.00 into his trust account on July 15, 2016.

9. A dispute arose with regard to the real estate contract and a lawsuit was filed over the $186,000.00 in brokerage fees held in escrow. The lawsuit was styled Distinguished Real Estate Services, LLC v. NRG Home Sale.com, Inc., Robert N Ingham, RI Law, P.A., (DISBARRED) and LBTP Investments, LLC, (REGISTERED AGENT IS DOMINGUEZ) case number 2017- 000139-CA-01.

10. Respondent entered an appearance in case number 2017-000139-CA- 01, on behalf of LBTP Investments, LLC (defendants), on or around June 7, 2017.

11. On September 5, 2017, a Final Summary Declaratory Judgment order was entered in case number 2017-00139-CA-01, directing that the $186,000.00 held in escrow be disbursed to “the Plaintiff in this action, as the Plaintiff is the only real estate broker entitled to any commissions under the Listing Contract.”

12. An appeal was filed on October 5, 2017, in the Third District Court of Appeal, case number 3D17-2201.

13. That appeal was not final until on or around September 23, 2018, when the mandate was issued in case number 3D17-2201.

14. Respondent represented to the court and parties involved that he would not distribute the escrow fees during the pendency of the litigation.

15. In a June 12, 2017, Memorandum of Law in Opposition to Defendant’s Motion to Direct Cesar Dominguez to Deposit $186,000 into Court Registry filed in the trial court, respondent stated that the $186,000.00 remained in escrow pursuant to the escrow agreement.

16. Nonetheless, respondent admits he improperly released the funds he was required to hold in escrow in violation of terms and conditions of the Settlement Agreement and Escrow Agreement.

17. In fact, respondent’s trust account statement shows a beginning balance of $6,065.87 and an ending balance of $3,065.84 for the month of June 2017.

18. Following the filing of a grievance with The Florida Bar, complainant informed The Florida Bar that he received a cashier’s check from respondent “for the compromised amount owed from his trust account” on or around October 24, 2018.

19. By reason of the foregoing, respondent has violated the following Rules Regulating The Florida Bar: 3-4.3 (Misconduct and Minor Misconduct); Rule 4-1.15 (Safekeeping Property); Rule 4-3.3(a) (Candor to the Tribunal; False Evidence; Duty to Disclose); Rule 4-4.1 (Transactions with Persons Other than Clients; Truthfulness in Statements to Others); 4-8.4(c) (A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); 5-1.1 (Trust Accounts).

THE FLORIDA BAR FILE NO. 2019-70,477

20. Respondent was the escrow agent in connection with a real estate contract between Alexander and Bonnie Angueira (sellers) and Jesus Fernandez and Yunia Hernandez (buyers) for a property located at 10701 SW 62nd Avenue, Pinecrest, Florida 33158.

21. Pursuant to paragraph thirteen of the real estate contract, the escrow agent was to immediately deposit the funds held in escrow.

22. Respondent, however, never deposited the escrow proceeds into his into his trust account.

23. Respondent sent an escrow receipt verification to Josie Wang, Avatar Real Estate Services, Listing Broker, and Magnolia Isusi, Miami New Realty, Cooperating Broker, affirming that the initial $50,000.00 was received in escrow on February 20, 2017, pursuant to the real estate contract.

24. However, respondent’s trust account shows no such deposit for the month of February 2017. Rather, the ending account balance for the month was $6,465.87.

25. Respondent sent an escrow receipt verification to Josie Wang, Avatar Real Estate Services, Listing Broker, and Magnolia Isusi, Miami New Realty, Cooperating Broker, affirming that an additional deposit of $150,000.00 was received in escrow on March 6, 2017, pursuant to the real estate contract.

Therefore, respondent should have been holding in escrow $200,000.00.

26. However, respondent’s trust account shows no such deposit for the month of March 2017. Rather, the ending account balance for March 2017 was $465.87.

27. The closing on the property did not occur, and the sellers demanded the funds in escrow be released to them as a result of the buyer’s alleged breach of contract.

28. At all times material, respondent represented that he held the
$200,000.00 in escrow.

29. On or around March 19, 2018, the trial court entered a Final Judgment Against Defendants Jesus Fernandez Torna and Yunia Hernandez finding them jointly and severally responsible for the $200,000.00 based on their material breach of the contract without justification.

30. Respondent acknowledged before the trial court that he had returned the funds to the defendants in violation of his duties as escrow agent on or around March 5, 2018.

31. As a result, on or around March 23, 2018, respondent was added as a defendant in case number 2017-013348-CA-01, and he paid a portion of the judgment to the plaintiffs.

32. By reason of the foregoing, respondent has violated the following Rules Regulating The Florida Bar: 3-4.3 (Misconduct and Minor Misconduct); Rule 4-1.15 (Safekeeping Property); Rule 4-4.1 (Transactions with Persons Other than Clients; Truthfulness in Statements to Others); 4-8.4(c) (A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); 5-1.1 (Trust Accounts).

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

Keri T. Joseph,
Bar Counsel
The Florida Bar
Miami Branch Office
444 Brickell Avenue
Rivergate Plaza,
Suite M-100 Miami,
Florida 33131-2404
(305) 377-4445
Florida Bar No. 84373
kjoseph@floridabar.org

MANDATORY ANSWER NOTICE

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

MIAMI FORECLOSURE DEFENSE, BANKRUPTCY & REAL ESTATE ATTORNEYS

The Law office of Dominguez & Associates regularly advises clients in foreclosure prevention & litigation strategies, Bankruptcy proceedings, and a variety of real estate matters including the purchase and sale of residential properties.

Mr. Cesar J. Dominguez, the principal lawyer of the firm, also earned a Master of Business Administration (MBA) degree.

His formal legal training and business education backed by years of practical business experience negotiating with banking institutions, real estate brokers, and mortgage companies provides the basis for his practice in foreclosure defense, Bankruptcy, and real estate transactions & litigation matters.

Foreclosure Defense

Reality of Foreclosure

We know what you are going through. You’ve had more than your share of difficulties the last few months. The good news is that you are not alone. The Law Office of Dominguez & Associates, P.A. can help. We understand that good people sometimes need a second chance. Most foreclosures are a result of an unexpected life event, such as:

Death in the Family
Difficult and costly Divorce
Lost a job or had to Change Jobs
Health problems with Expensive Medical Bills
Maybe you’re struggling with increased utility prices or fuel expenses or an adjustable rate mortgage (ARM) that is unbearable.
Maybe you’ve already had to file bankruptcy or get a forbearance and the repayment plan is not working out.
Maybe this is all a big mistake and the payments you’ve been sending were rerouted or lost because your mortgage has been sold or traded.

Foreclosure Process

The foreclosure process can be complicated and confusing. That is why having an experienced foreclosure attorney can aid in your ability to fully exercise your rights.

The foreclosure process starts with a notice of default. This begins a time period in which action may be taken to prevent the foreclosure. Once such time period expires, you will receive a notice of trustee sale. This gives an individual some time to stop the foreclosure.

That is where our experienced foreclosure lawyer can assist you. We know the system and how banks operate.

We will negotiate a Work-Out Agreement with your lender to reschedule your loan payments, modify payment terms by extending the original maturity, to lower the interest rate and so on.

We have many options available to you that can help you repay those arrearages without putting you in a financial pinch. We can specifically tailor a solution to best fit your financial needs, and negotiate such terms and conditions with your lender.

Bankruptcy

At the Law Office of Dominguez & Associates, our experienced foreclosure defense and Bankruptcy lawyer will work with your lender to reach an agreement regarding your loan.

Our clients appreciate the high-quality legal advice we provide and our practical approach to resolving their real estate and financial concerns.

However, if a Work-Out Agreement does not fit your needs, or if your lender rejects such agreement, then filing for Bankruptcy is the right option for you.

Chapter 7 Bankruptcy- Chapter 7 bankruptcy is a federal court procedure in which debtors are able to eliminate most types of unsecured debt. Chapter 7 Bankruptcy is often called the liquidation bankruptcy and aims to give individuals a fresh start.

Chapter 13 Bankruptcy- Chapter 13 bankruptcy is a federal court process in which debtors are able to repay all or some of their debts through an interest-free payment plan over a 3 or 5 year period. Chapter 13 bankruptcy is often called the reorganization or repayment bankruptcy.

While confidently handling many Chapter 7 bankruptcy and Chapter 13 bankruptcy matters, the Law Office of Dominguez & Associates, provides guidance and advice to clients regarding foreclosures and creditor harassment. We strive to help clients understand their rights and how to effectively deal with these issues.

Real Estate transactions and litigation

Our firm helps residential real estate clients develop and execute effective real estate agreements. We help people in purchases and sales of residential real estate and provide well-grounded legal guidance for clients. Our real estate attorney handles all types of transactions:

real estate purchase agreements – review and drafting of contracts; representing buyers, sellers, brokers, and investors
lease agreements – effective rental agreements for owners and renters; residential properties, office buildings, strip malls
1031 exchanges – like kind property exchanges to defer capital gains taxes
conveyances – transfer of real property, quit claims
construction agreements – between general contractors and homeowners

To learn more, please contact us to schedule your free initial consultation.

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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.



Hendersonville Police arrest suspects targeting elderly residents, stealing more than $10K

JUN 16, 2021 | REPUBLISHED BY LIT: JUN 19, 2021

Hendersonville Police have recently arrested two suspects in connection with a scam targeting the elderly.

The suspects, a 42-year-old and 28-year-old from Miami, Fla, were arrested by Hendersonville detectives with the assistance of multiple agencies across state lines after an ongoing investigation that began on June 7.

Police began their investigation after they were told about a scam that resulted in more than $10,000 in cash being stolen from two older Hendersonville residents.

Details of the scam

Phone calls were made to one of the victims by someone impersonating their grandson, saying they were in jail then passing the phone to someone they claimed was their attorney, officials said.

“The attorney” then shared with the victim how their grandson had been in a car accident that led to another person’s death, resulting in the grandson’s being arrested and charged.

The scammer continued explaining how money was needed to pay the grandson’s bond and associated costs to lessen the sentence, and that a judge had placed a gag order on the case so the victim could not contact or discuss it with anyone.

Instructions on how to package the money were provided by one of the suspects, and a courier was arranged to pick up and deliver the cash from the victim’s home to a second location.

An investigation revealed the couriers that transported the money had no knowledge of the criminal activity and were working as Uber drivers.

Foot chase at the mall results in arrest
The suspects continued to contact the victim claiming another, much larger transaction was needed to help their grandson resolve his legal troubles.

Hendersonville detectives got involved and orchestrated a money drop to help identify and arrest those involved.

Police were led to the 100 Oaks Mall in Nashville on June 8, where the 42-year-old suspect, after taking possession of the money, was taken into custody in the parking lot following a brief foot chase.

The suspect has been charged with two counts of theft over $10,000, attempted theft over $10,000, two counts of Financial Exploitation of an Elderly Person and Attempted Financial Exploitation of an Elderly Person.

He is currently being held in Sumner County Jail under a $150,000 bond and is scheduled to appear in General Sessions Court on June 23.

The second suspect was caught the next day.

Hendersonville detectives coordinated efforts with the Florida Highway Patrol and the Broward County, Florida Sheriff’s Office for assistance in locating and arresting the 28-year-old suspect, who had fled from a Smyrna hotel and was headed back to South Florida.

He was taken into custody at the Ft. Lauderdale International Airport by the Florida Highway Patrol, and a large amount of cash was recovered at the time of his arrest.

He is currently being held in Florida, pending extradition back to Sumner County, and faces the following charges: two counts of theft over $10,000, attempted theft over $10,000, two counts of Financial Exploitation of an Elderly Person, and Attempted Financial Exploitation of an Elderly Person.

Police issue a word of caution

Phone calls that pressure an individual to stay on the phone, urge individuals to make immediate payment in cash or by electronic means or instruct individuals not to contact anyone before making payment are scams, officials say.

Police urge the public to be weary of suspicious calls, hang up the phone and contact local law enforcement to confirm the legitimacy of the call.

This investigation is ongoing.

Several more victims in other jurisdictions and other area Middle Tennessee Law Enforcement agencies who were victimized by this scam throughout Middle Tennessee have come forward.

Any victim of a similar incident should report that to their local law enforcement agency.

If anyone has any information about the case, they are asked to call Hendersonville Police Criminal Investigation Division at (615) 264-5303 or the Hendersonville Crime Stoppers at (615) 594- 4113.

Tips may also be submitted using the P3 Tips Mobile Application.

Continue Reading

Appellate Judges

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.

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