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Why Did Judge Jill A. Pryor Recuse – After Oral Argument – in this $826 Million Dollar Ponzi Scheme?

Judge Jill Pryor apparently recused herself AFTER oral argument, however, apart from a footnote in the final 2-panel opinion, there is nothing on the docket to suggest Jill Pryor recused, either by order or notation on the docket.

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LIT COMMENTARY

In this 11th Circuit appeal sat a 3 panel of Judges William Pryor, Jill Pyror (no relation) and a judge sitting by designation. Judge Jill Pryor apparently recused herself AFTER oral argument. Apart from the final order (a footnote confirms her recusal) affirming the conviction of the lower court for disgraced Florida Attorney Livoti, there is nothing on the docket to suggest Jill Pryor recused, either by order or notation on the docket. We would have expected such as it is an untimely recusal, so late in proceedings.

The same was true in the Burkes’ case (19-13015), where she denied the first recusal in an order and then immediately sealed the Burkes recusal motion – to which the Burkes refiled a 2nd recusal and to which she refused to respond, yet in the interim another 5 appellate judges would be assigned at some point to the Burkes case. Weird huh. We think so, it’s what you do when you’re trying to cover up FRAUD. That’s right, what they affirm in this sentence below for Livoti, they do themselves, “Fraud Upon Fraud” is the term judges seem to use today.

What’s even more interesting in the oral arguments is Aileen Cannon, then a prosecutor, was presenting oral argument before the 3-panel and she is now a sitting judge as of January 1st, 2021 – supposedly replacing retiring Senior Judge Ken Marra at S.D. Fl. Marra’s feet are stuck in glue and the same is true as regards the Burke’s complaint with now Chief Judge Bill Pryor – yup, that’s right – the same Pryor in this panel…the Burkes complaint looks like it’s heading for it’s first annual anniversary of percolatin’.

Read on and watch the video towards the end of this article…it’s confirmation that federal judges practice the ‘rule of law’ when they feel like it and become mob Outlaws in Robes (legal term is committing a conspiracy) when it concerns the judiciary.

That’s why judges judgin’ judges is a very, very bad idea.

WHY DID JUDGE JILL A. PRYOR, 11TH CIR., RECUSE AFTER ORAL ARGUMENT?

Judge Aileen M. Cannon Judicial Nomination Questionnaire

Broward lawyer gets 10 years in prison for $826 Million Dollar Scam

April 1, 2014 | Republished by LIT; Jan 26, 2021

Well-known South Florida lawyer Anthony Livoti Jr. was sentenced to 10 years in federal prison Tuesday for his role in a massive life insurance investment scheme that defrauded 30,000 investors worldwide.

He was also ordered to pay more than $826 million in restitution.

Shackled and dressed in khaki jail scrubs, Livoti showed the emotion of a scared man fighting to save himself from spending the rest of his life in prison — but he also displayed the skills of a tough attorney who fought for his clients in more than 40 years of lawyering.

“I had a life that was always filled with joy. I now have a life that is filled with sadness,” Livoti said, speaking of the three months that he has already spent locked up in the Federal Detention Center in Miami since his conviction.

Livoti, 65, of Fort Lauderdale, was best known as a police union lawyer and for his advocacy work for the gay community. He was convicted in December after a three-month trial.

The Ponzi scheme bought out life insurance policies at discount prices from seniors and people who were dying of AIDS, cancer and other terminal conditions. In what became known as the Mutual Benefits Corp. scam, led by Joel Steinger, (who received 20 years jail time out of a possible 50 year sentence) the policies were sold to investors who expected to make a profit by receiving the full insured value when the beneficiaries died.

Jurors took an extraordinarily long eight days of deliberations to find Livoti guilty of four charges, including conspiring to commit fraud and money laundering, but found him not guilty of 20 related counts.

Livoti, the only defendant who went to trial in the case, finally acknowledged his guilt in court Tuesday after long denying it.

“I lost my way and I wish I could go back and change it,” Livoti said, apologizing to the victims for what he called the “terrible wrong” he committed.

Livoti insisted that he had thought he was innocent of the charges until he went to trial and heard all of the evidence against him. He said he had thought that the problems with Mutual Benefits were caused because medical advances were helping people with AIDS live longer than expected and even survive.

Sentencing guidelines suggested a punishment of 80 years. Assistant U.S. Attorney Karen Rochlin recommended a 30-year term and the defense asked for six years in prison – twice the punishment that Livoti would have received if he took the last plea agreement prosecutors offered before he went to trial.

Livoti, the son of a New York state judge, told U.S. District Judge Robert Scola Jr. that he had already lost his reputation, his career and his freedom.

He begged the judge to give him hope, which he said he had lost, that he would not die in prison and could some day be released to spend the rest of his life with his husband, Michael Porter. He said he also wants to try to make amends for his crimes. The felony convictions mean he will lose his law license.

“Judge, I am a life worth saving,” Livoti said.

The couple, who met in 1999 and later married in New York, lived a relatively modest lifestyle, Porter told the judge. They shared a 1,350-square-foot home in Fort Lauderdale that Livoti bought in the 1970s, and Porter works as a teacher in the Broward County School District, defense attorney Joel Hirschorn said.

Porter wept as he told the judge how much he respected Livoti’s long history of advocating for gay rights and talked about the charitable work they both did for people with AIDS, having both lost many close friends to the disease.

“Please take into consideration all of the good Tony has brought into the world,” Porter asked the judge.

The defense acknowledged that Livoti received $900,000 over about 10 years for his work for Mutual Benefits, but Porter said the couple never lived an extravagant lifestyle.

Dozens of supporters crowded into the courtroom and many more wrote letters urging leniency for Livoti, who they said worked for free or greatly reduced rates for police officers, gay causes and charitable groups. One former employee wrote that Livoti secretly refused to bill for low-income juvenile defendants he was court-appointed to represent because he hoped to make a difference in their lives.

Retired Broward County Judge Robert Zack, a 30-year friend, was one of the supporters who spoke on Livoti’s behalf in the federal courtroom in Miami.

“He has an impeccable reputation,” Zack said. “He’s a lawyers’ lawyer,”

Union representatives from the Fraternal Order of Police praised Livoti’s dedication while other members wrote separately to say they were disgusted by what he did and were upset that the union was officially supporting him.

Federal prosecutors said Livoti abused his position as an attorney and violated the public trust.

Steinger, a convicted felon who pleaded guilty last week to his ringleader role, hid his involvement in the fraud by installing a figurehead executive to operate Mutual Benefits, prosecutors said. Steinger and his co-conspirators, including Livoti, raised more than $1.25 billion from investors until they were shut down by federal regulators in 2004, according to prosecutors.

Starting in 1994, Mutual Benefits fraudulenty marketed the insurance policy death benefits, known as viatical settlements, by promising a fixed rate of return with low risk, investigators said. Money from new investors was used to pay premiums on life insurance policies that were purchased by earlier investors and to repay investors who wanted their money back, prosecutors argued.

Scola gave Livoti credit for his long history of charitable work and for his “significant community service,” but said the massive fraud was “something that’s way above the norm.”

Livoti played a third-tier role — below Joel Steinger and others — in the Fort Lauderdale-based scam, but it was still a significant role for a lawyer, Scola said.

When he finally heard his fate, Livoti looked down and silently cried, tears dripping from his face.

At the end of the sentencing, Scola asked the lawyers the routine legal question of whether they had any objections — but it was Livoti, not his defense team, who replied.

Livoti made an unusual request for the judge to immediately reconsider the sentence he had just imposed.

“That’s a long time for me,” Livoti said.

Scola replied that he had sentenced Livoti to one-eighth of the sentence recommended by the guidelines and said the victims “will probably not be celebrating my sentencing.”

“That’s basically my life,” Livoti replied, going on to list the ages at which his parents and other family members had died — mostly in their 60s and 70s — as Porter and some supporters sobbed.

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Why is there no recusal recorded in order or note form anywhere on the docket for Judge Jill A. Pryor? And why did she only recuse AFTER oral argument?

General Docket
United States Court of Appeals for the Eleventh Circuit
Court of Appeals Docket #: 14-11699 Docketed: 04/18/2014
Termed: 10/04/2018
USA v. Anthony Livoti, Jr.
Appeal From: Southern District of Florida
Fee Status: Fee Paid
Case Type Information:
     1) Criminal
     2) Direct Criminal
     3) –
Originating Court Information:
     District: 113C-1 : 1:08-cr-21158-RNS-4
     Court Reporter: Joseph Millikan
     Sentencing Judge: Robert N. Scola, Junior, U.S. District Judge
     Date Filed: 12/23/2008
     Date NOA Filed:
     04/17/2014
Prior Cases:
     None
Current Cases:
Lead Member Start End
     Consolidated
14-11699 15-12697 09/03/2015
14-14081 14-14088 06/22/2015
     Related
14-11699 14-14088 09/10/2014

 

UNITED STATES OF AMERICA
Plaintiff – Appellee
Aileen Cannon
Direct: 772-293-0951
[COR LD NTC US Attorney]
U.S. Attorney Service – SFL
STE 510
99 NE 4TH ST 5TH FL
MIAMI, FL 33132-2111Nicole D. Mariani
Direct: 305-961-9285
[COR LD NTC US Attorney]
U.S. Attorney Service – SFL
99 NE 4TH ST 5TH FL
MIAMI, FL 33132-2111Kathleen Mary Salyer
[COR LD NTC US Attorney]
U.S. Attorney Service – SFL
99 NE 4TH ST 5TH FL
MIAMI, FL 33132-2111Madeleine R. Shirley
Direct: 305-961-9127
[COR LD NTC US Attorney]
U.S. Attorney Service – SFL
99 NE 4TH ST 5TH FL
MIAMI, FL 33132-2111Roger Cruz
Direct: 305-961-9001
[NTC US Attorney]
U.S. Attorney Service – SFL
99 NE 4TH ST 5TH FL
MIAMI, FL 33132-2111Michael Scott Davis, Assistant U.S. Attorney
Direct: 305- 961-9027
[NTC US Attorney]
U.S. Attorney Service – SFL
99 NE 4TH ST 5TH FL
MIAMI, FL 33132-2111Maureen Donlan
Direct: 305-961-9334
[NTC US Attorney]
U.S. Attorney Service – SFL
99 NE 4TH ST 5TH FL
MIAMI, FL 33132-2111Wifredo A. Ferrer
Direct: 305-789-7780
[NTC US Attorney]
Holland & Knight, LLP
Firm: 305-789-7709
701 BRICKELL AVE STE 3300
MIAMI, FL 33131Kevin James Larsen, I, Assistant U.S. Attorney
Direct: 305-961-9356
[NTC US Attorney]
U.S. Attorney Service – SFL
STE 510
99 NE 4TH ST 5TH FL
MIAMI, FL 33132-2111Alison Whitney Lehr
Direct: 305-961-9001
[NTC US Attorney]
U.S. Attorney Service – SFL
99 NE 4TH ST 5TH FL
MIAMI, FL 33132-2111Karen Rochlin
Direct: 305-961-9234
[NTC US Attorney]
U.S. Attorney Service – SFL
99 NE 4TH ST 5TH FL
MIAMI, FL 33132-2111Edward Norman Stamm
Direct: 305-961-9164
[NTC US Attorney]
U.S. Attorney Service – SFL
99 NE 4TH ST 5TH FL
MIAMI, FL 33132-2111
versus
ANTHONY LIVOTI, JR. (Federal Prisoner: 82098-004)
Defendant – Appellant
Richard Carroll Klugh, Jr.
Direct: 305-536-1191
[COR LD NTC Retained]
Law Office of Richard C. Klugh
Firm: 305-536-1191
25 SE 2ND AVE STE 100
MIAMI, FL 33131

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

versus

ANTHONY LIVOTI, JR.,

Defendant – Appellant.

04/18/2014  
9 pg, 178.75 KB
CRIMINAL APPEAL DOCKETED. Notice of appeal filed by Appellant Anthony Livoti, Jr. on 04/17/2014. Fee Status: Fee Not Paid. [Entered: 04/24/2014 12:20 PM]
04/21/2014  
3 pg, 98.28 KB
USDC order Granting Motion to Withdraw as Counsel for attorneys Jake Matthew Greenberg and Joel Hirschhorn as to Appellant Anthony Livoti, Jr. filed on 04/21/2014. The defendant does not qualify for the appointment of appellate counsel and must RETAIN an attorney to represent him for the appeal. Docket Entry 1070. [Entered: 04/24/2014 12:26 PM]
04/29/2014  
1 pg, 4.93 MB
APPEARANCE of Counsel Form filed by Kathleen Mary Salyer for USA. (ECF: Kathleen Salyer) [Entered: 04/29/2014 03:07 PM]
04/29/2014 E-filed Appearance of Counsel processed for Attorney Kathleen Mary Salyer for Appellee USA in 14-11699. [Entered: 04/29/2014 04:41 PM]
05/08/2014  
1 pg, 9.41 KB
Appellate fee was paid on 05/07/2014 as to Appellant Anthony Livoti, Jr.. [Entered: 05/08/2014 08:47 AM]
05/08/2014  
1 pg, 14.01 KB
Public Communication:. Letter to appellant as a reminder that district court denied his IFP status, allowed attorneys to withdraw and requested the appellant to retain counsel. [Entered: 05/08/2014 08:56 AM]
08/14/2014  
1 pg, 14.36 KB
Public Communication:. Reminder to Appellant that the Court is awaiting response to Appt-1 letter. [Entered: 08/14/2014 11:23 AM]
09/29/2014  
1 pg, 55.97 KB
APPEARANCE of Counsel Form filed by Richard C. Klugh for Appellant Anthony Livoti (ECF: Richard Klugh) [Entered: 09/28/2014 10:36 AM]
09/29/2014 Added Attorney(s) Richard Carroll Klugh Jr. for party(s) Appellant Anthony Livoti Jr., in case 14-11699. [Entered: 09/29/2014 09:21 AM]
10/20/2014  
1 pg, 14.75 KB
Briefing Notice issued to Appellant Anthony Livoti, Jr.. The appellants brief is due on or before 11/10/2014. The appendix is due no later than 7 days from the filing of the appellant’s brief. [Entered: 10/20/2014 02:23 PM]
11/10/2014  
6 pg, 72.7 KB
MOTION for extension of time to file appellants brief to 01/09/2015 filed by Anthony Livoti, Jr.. Motion is Unopposed. [7319716-1] (ECF: Richard Klugh) [Entered: 11/10/2014 07:40 PM]
12/02/2014  
2 pg, 152.17 KB
ORDER: Motion for extension to file appellant brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [7319716-2] Appellants brief due on 01/09/2015. JEC [Entered: 12/02/2014 11:18 AM]
01/09/2015  
7 pg, 74.49 KB
MOTION for extension of time to file appellant brief to 02/09/2015 filed by Anthony Livoti, Jr.. Motion is Unopposed. [7365626-1] (ECF: Richard Klugh) [Entered: 01/09/2015 07:48 PM]
01/14/2015  
2 pg, 145.09 KB
ORDER: Appellant’s motion for an extension of time for filing the following documents is GRANTED. Appellant’s brief is due February 9, 2015, with the Appellant’s appendix due no later than seven days from the filing of the appellant’s brief. [7365626-2] JEC [Entered: 01/14/2015 03:01 PM]
02/09/2015  
7 pg, 75.12 KB
MOTION for extension of time to file appellants brief to 03/11/2015 filed by Anthony Livoti, Jr.. Motion is Unopposed. [7389556-1] (ECF: Richard Klugh) [Entered: 02/09/2015 07:03 PM]
02/18/2015  
2 pg, 153.25 KB
ORDER: Motion for extension to file appellant brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [7389556-2] Appellants brief due on 03/11/2015. JEC [Entered: 02/18/2015 10:30 AM]
03/11/2015  
7 pg, 76.9 KB
MOTION for extension of time to file appellants brief to 04/10/2015 filed by Anthony Livoti, Jr.. Motion is Unopposed. [7413789-1] (ECF: Richard Klugh) [Entered: 03/11/2015 10:03 PM]
03/31/2015  
2 pg, 149.81 KB
ORDER: Motion for extension to file appellant brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [7413789-2] Appellants brief due on 04/10/2015. JEC [Entered: 03/31/2015 02:08 PM]
04/10/2015  
7 pg, 76.11 KB
MOTION for extension of time to file appellants brief to 05/11/2015 filed by Anthony Livoti, Jr.. Motion is Unopposed. [7440875-1] (ECF: Richard Klugh) [Entered: 04/10/2015 11:21 PM]
04/13/2015  
1 pg, 168.99 KB
APPEARANCE of Counsel Form filed by Madeleine R. Shirley for USA (ECF: Madeleine Shirley) [Entered: 04/13/2015 05:38 PM]
04/14/2015 Added Attorney Madeleine R. Shirley for party Appellee USA, in case 14-11699. [Entered: 04/14/2015 11:56 AM]
04/14/2015 E-filed Appearance of Counsel processed for Attorney Madeleine R. Shirley for Appellee USA in 14-11699. [Entered: 04/14/2015 11:57 AM]
04/22/2015  
2 pg, 57.43 KB
ORDER: Motion for extension to file appellant initial brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [7440875-2] Appellant’s brief due on 05/11/2015. JEC [Entered: 04/22/2015 02:43 PM]
05/11/2015  
7 pg, 76.21 KB
MOTION for extension of time to file appellants brief to 06/10/2015 filed by Anthony Livoti, Jr.. Motion is Unopposed. [7465968-1] (ECF: Richard Klugh) [Entered: 05/11/2015 07:20 PM]
05/20/2015  
2 pg, 152.56 KB
ORDER: Motion for extension to file appellant brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [7465968-2] Appellants brief due on 06/10/2015. JEC [Entered: 05/20/2015 03:16 PM]
06/04/2015  
1 pg, 44.71 KB
Amended Notice of Appeal filed by Attorney Richard Carroll Klugh, Jr. for Appellant Anthony Livoti, Jr.. [Entered: 06/04/2015 02:37 PM]
06/10/2015  
6 pg, 66.06 KB
MOTION to consolidate with 15-12697 briefing schedule filed by Anthony Livoti, Jr.. Motion is Unopposed. [7492371-1]–[Edited 06/17/2015 by RAV] (ECF: Richard Klugh) [Entered: 06/10/2015 10:18 PM]
06/18/2015 E-filed Appearance of Counsel processed for Attorney Richard Carroll Klugh Jr. for Appellant Anthony Livoti Jr. in 14-11699. [14-11699, 15-12697] [Entered: 06/18/2015 09:52 AM]
09/03/2015  
1 pg, 12.31 KB
ORDER: Motion to consolidate briefing schedule filed by Appellant Anthony Livoti, Jr. is GRANTED by clerk. [7492371-2] in 14-11699; ORDER: Motion to consolidate appeals filed by Appellant Anthony Livoti, Jr. is GRANTED by clerk. [7498756-2] in 15-12697 [14-11699, 15-12697] [Entered: 09/03/2015 03:44 PM]
09/08/2015  
1 pg, 698.08 KB
APPEARANCE of Counsel Form filed by Nicole Mariani for USA (ECF: Nicole Mariani) [Entered: 09/08/2015 01:26 PM]
09/08/2015 Added Attorney(s) Nicole D. Mariani for party(s) Appellee USA, in case 14-11699. [Entered: 09/08/2015 01:31 PM]
10/13/2015  
7 pg, 75.9 KB
MOTION for extension of time to file appellants brief to 11/12/2015 filed by Anthony Livoti, Jr.. Motion is Unopposed. [7598029-1] (ECF: Richard Klugh) [Entered: 10/13/2015 07:37 PM]
10/15/2015  
2 pg, 34.39 KB
ORDER: Motion for extension to file appellant brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [7598029-2] in 14-11699 consolidated w/15-12697 Appellants brief due on 11/12/2015, with the Appellant’s appendix due no later than seven days from the filing of the Appellant’s brief. JP [14-11699, 15-12697] [Entered: 10/15/2015 08:51 AM]
11/12/2015  
7 pg, 76.24 KB
MOTION for extension of time to file appellants brief to 12/14/2015 filed by Anthony Livoti, Jr.. Motion is Unopposed. [7624246-1] (ECF: Richard Klugh) [Entered: 11/12/2015 05:50 PM]
11/17/2015  
2 pg, 89.1 KB
ORDER: Motion for extension to file appellant brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [7624246-2] in 14-11699, Motion for extension to file appellant brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [7625985-2] in 15-12697 Appellants brief due on 12/14/2015. JP [14-11699, 15-12697] [Entered: 11/17/2015 03:57 PM]
12/14/2015  
7 pg, 73.24 KB
MOTION for extension of time to file appellants brief to 01/13/2016 filed by Anthony Livoti, Jr.. Motion is Unopposed. [7650972-1] (ECF: Richard Klugh) [Entered: 12/14/2015 08:01 PM]
12/18/2015  
3 pg, 41.44 KB
ORDER: Motion for extension to file appellant brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [7650972-2] in 14-11699 Appellant’s brief is due on 01/13/2016. JP [14-11699, 15-12697] [Entered: 12/18/2015 12:28 PM]
01/13/2016  
7 pg, 93.73 KB
MOTION for extension of time to file appellants brief to 02/12/2016 filed by Anthony Livoti, Jr.. Motion is Unopposed. [7672686-1] (ECF: Richard Klugh) [Entered: 01/13/2016 10:51 AM]
01/19/2016  
3 pg, 41.35 KB
ORDER: Motion for extension to file appellant brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [7672686-2] in 14-11699, and Motion for extension to file appellant brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [7672693-2] in 15-12697 Appellants brief due on 02/12/2016. JP [14-11699, 15-12697] [Entered: 01/19/2016 12:32 PM]
02/11/2016  
1 pg, 143 KB
APPEARANCE of Counsel Form filed by Aileen Cannon for USA (ECF: Aileen Cannon) [Entered: 02/11/2016 04:00 PM]
02/12/2016 Added Attorney(s) Aileen Cannon for party(s) Appellee USA, in case 15-12697 Attorney(s) Aileen Cannon for party(s) Appellee USA, in case 14-11699. [14-11699, 15-12697] [Entered: 02/12/2016 11:24 AM]
02/12/2016 E-filed Appearance of Counsel processed for Attorney Aileen Cannon for Appellee USA in 14-11699. [14-11699, 15-12697] [Entered: 02/12/2016 11:25 AM]
02/12/2016  
7 pg, 89.96 KB
MOTION for extension of time to file appellants brief to 03/14/2016 filed by Anthony Livoti, Jr.. Motion is Unopposed. [7698902-1] (ECF: Richard Klugh) [Entered: 02/12/2016 10:53 PM]
03/02/2016  
2 pg, 48.02 KB
ORDER: Motion for extension to file appellant brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [7698902-2] in 14-11699, Motion for extension to file appellant brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [7713541-2] in 15-12697 Appellants brief due on 03/14/2016. JP [14-11699, 15-12697] [Entered: 03/02/2016 12:56 PM]
03/14/2016  
6 pg, 91.77 KB
MOTION for extension of time to file appellants brief to 03/28/2016 filed by Anthony Livoti, Jr.. Motion is Unopposed. [7724143-1] (ECF: Richard Klugh) [Entered: 03/14/2016 09:58 PM]
03/15/2016 NOTICE OF CIP FILING DEFICIENCY to Richard Carroll Klugh, Jr. for Anthony Livoti, Jr. and Mrs. Aileen Cannon for USA in 14-11699. You are receiving this notice because you have not completed the Web-Based Stock Ticker Symbol Certificate of Interested Persons (CIP) via the Court’s public web-page. Failure to comply with 11th Cir. Rules 26.1-1 through 26.1-4 may result in dismissal of the case or appeal under 11th Cir. R. 42-1(b), return of deficient documents without action, or other sanctions on counsel, the party, or both. [14-11699, 15-12697]. Also, please e-file your Certificate of Interested Persons today [Entered: 03/15/2016 12:21 PM]
03/15/2016  
4 pg, 69.21 KB
Certificate of Interested Persons and Corporate Disclosure Statement filed by Attorney Richard Carroll Klugh, Jr. for Appellant Anthony Livoti, Jr.. On the same day the CIP is served, the party filing it must also complete the court’s web-based stock ticker symbol certificate at the link here http://www.ca11.uscourts.gov/web-based-cip or on the court’s website. See 11th Cir. R. 26.1-2(b). (ECF: Richard Klugh) [Entered: 03/15/2016 01:28 PM]
03/16/2016  
3 pg, 42.21 KB
ORDER: Motion for Extension to file appellant brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [7724143-2] in 14-11699 Appellant’s brief due on 03/28/2016. JP [14-11699, 15-12697] [Entered: 03/16/2016 08:17 AM]
03/23/2016  
6 pg, 194.61 KB
Certificate of Interested Persons and Corporate Disclosure Statement filed by Attorney Mrs. Aileen Cannon for Appellee USA. On the same day the CIP is served, the party filing it must also complete the court’s web-based stock ticker symbol certificate at the link here http://www.ca11.uscourts.gov/web-based-cip or on the court’s website. See 11th Cir. R. 26.1-2(b). (ECF: Aileen Cannon) [Entered: 03/23/2016 10:27 AM]
03/28/2016  
6 pg, 91.74 KB
MOTION for extension of time to file appellants brief to 04/04/2016 filed by Anthony Livoti, Jr.. Motion is Unopposed. [7736358-1] (ECF: Richard Klugh) [Entered: 03/28/2016 07:05 PM]
04/04/2016  
71 pg, 291.93 KB
Appellant’s brief filed by Anthony Livoti, Jr.. (ECF: Richard Klugh) [Entered: 04/04/2016 12:38 AM]
04/04/2016  
3 pg, 42.88 KB
ORDER: Motion for extension to file appellant brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [7736358-2] in 14-11699 Appellants brief due on 04/04/2016. JP [14-11699, 15-12697] [Entered: 04/04/2016 07:38 AM]
04/07/2016 Received paper copies of EBrief filed by Appellant Anthony Livoti, Jr. in 14-11699, 15-12697. [14-11699, 15-12697] [Entered: 04/08/2016 03:04 PM]
04/11/2016  
197 pg, 3.67 MB
Appendix filed [1 VOLUMES] by Appellant Anthony Livoti, Jr.. (ECF: Richard Klugh) [Entered: 04/11/2016 08:32 AM]
04/15/2016 Appellant’s PSI for the Electronic ROA Program filed by Attorney Richard Carroll Klugh, Jr. for Appellant Anthony Livoti, Jr. in 14-11699, 15-12697. [14-11699, 15-12697] [Entered: 04/18/2016 09:44 AM]
04/18/2016 Received paper copies of EAppendix filed by Appellant Anthony Livoti, Jr. in 14-11699, 15-12697. 1 VOLUMES – 2 SETS [14-11699, 15-12697] [Entered: 04/18/2016 09:42 AM]
04/20/2016  
10 pg, 19.99 KB
MOTION for extension of time to file appellees brief to 07/08/2016 at 11:59 pm filed by USA. Motion is Unopposed. [7758327-1] (ECF: Aileen Cannon) [Entered: 04/20/2016 02:31 PM]
04/22/2016  
2 pg, 165.98 KB
ORDER: Motion for extension to file appellee brief filed by Appellee USA is GRANTED. [7758327-2] Appellee’s brief is due on 07/08/2016. RSR [Entered: 04/22/2016 08:19 AM]
06/13/2016  
1 pg, 62.48 KB
TRANSCRIPT INFORMATION FORM SUBMITTED by Attorney Mrs. Aileen Cannon for Appellee USA. Transcript(s) ordered. (ECF: Aileen Cannon) [Entered: 06/13/2016 04:46 PM]
06/13/2016  
2 pg, 124.24 KB
Letter to stay briefing schedule filed by Attorney Mrs. Aileen Cannon for Appellee USA. (ECF: Aileen Cannon) [Entered: 06/13/2016 04:48 PM]
06/14/2016 TRANSCRIPT INFORMATION FORM PROCESSED. Transcript Order: Filer: United States of America, Court Reporter: Joseph Millikan, Proceeding Type and Date: Trial 11/19/2013 – 11/21/2013, Trial 12/03/2014 – 12/04/2014, Sentencing 04/01/2014 – 04/01/2014. [14-11699, 15-12697] [Entered: 06/14/2016 03:16 PM]
06/14/2016  
1 pg, 14.53 KB
The briefing schedule issued to Appellee USA in 14-11699, 15-12697 is hereby rescinded for the following reason(s): USA requested Transcripts. When the above matter(s) is resolved, the clerk will issue a notice advising counsel and the parties of the new schedule for filing briefs in this appeal. [14-11699, 15-12697] [Entered: 06/14/2016 03:18 PM]
06/20/2016  
1 pg, 157.26 KB
TRANSCRIPTS FILED. Transcript Order: Court Reporter: Joseph Millikan, Filer: United States of America, Proceeding Type and Date: Trial 11/19/2013 – 11/21/2013, Trial 12/03/2014 – 12/04/2014, Sentencing 04/01/2014 – 04/01/2014. [14-11699, 15-12697] [Entered: 07/20/2016 03:19 PM]
07/20/2016  
9 pg, 110.43 KB
MOTION for extension of time to file appellees brief to 09/06/2016 at 11:59 pm filed by USA. Motion is Unopposed. [7858861-1] (ECF: Aileen Cannon) [Entered: 07/20/2016 04:19 PM]
07/25/2016  
2 pg, 134.6 KB
ORDER: Motion for Extension to file appellee brief filed by Appellee USA is GRANTED. [7858861-2] in 14-11699 and Motion for Extension to file appellee brief filed by Appellee USA is GRANTED. [7858864-2] in 15-12697 Appellee’s brief due on 09/06/2016. RSR [14-11699, 15-12697] [Entered: 07/25/2016 07:58 AM]
08/17/2016  
9 pg, 29.68 KB
MOTION for extension of time to file appellees brief to 09/21/2016 filed by USA. Motion is Unopposed. [7885392-1] (ECF: Aileen Cannon) [Entered: 08/17/2016 04:11 PM]
08/17/2016  
9 pg, 29.68 KB
MOTION for excess words/pages filed by USA. Motion is Unopposed. [7885417-1] (ECF: Aileen Cannon) [Entered: 08/17/2016 04:20 PM]
08/22/2016  
2 pg, 20.92 KB
ORDER: Motion to file excess words/pages filed by Appellee USA is GRANTED. [7885417-2] in 14-11699, Motion to file excess words/pages filed by Appellee USA is GRANTED. [7885408-2] in 15-12697; Motion for extension to file appellee brief filed by Appellee USA is GRANTED. [7885392-2] in 14-11699, Motion for extension to file appellee brief filed by Appellee USA is GRANTED. [7885408-3] in 15-12697 Appellees brief is due on 09/21/2016. EEC [14-11699, 15-12697] [Entered: 08/22/2016 09:43 AM]
09/16/2016  
8 pg, 27.26 KB
MOTION for extension of time to file appellees brief to 10/03/2016 filed by USA. Motion is Unopposed. [7910832-1] (ECF: Aileen Cannon) [Entered: 09/16/2016 03:41 PM]
09/22/2016  
2 pg, 124.4 KB
ORDER: Motion for extension to file appellee brief filed by Appellee USA is GRANTED. [7910832-2] in 14-11699, Motion for extension to file appellee brief filed by Appellee USA is GRANTED. [7910838-2] in 15-12697 Appellee’s brief is due on 10/03/2016. RSR [14-11699, 15-12697] [Entered: 09/22/2016 11:08 AM]
09/22/2016  
8 pg, 25.86 KB
MOTION for excess words/pages filed by USA. Motion is Unopposed. [7916137-1] (ECF: Aileen Cannon) [Entered: 09/22/2016 05:29 PM]
09/27/2016  
2 pg, 20.53 KB
ORDER: Motion to File Excess Words/Pages filed by Appellee USA is GRANTED. [7916137-2] in 14-11699 and Motion to File Excess Words/Pages filed by Appellee USA is GRANTED. [7916138-2] in 15-12697 EEC [14-11699, 15-12697] [Entered: 09/27/2016 03:05 PM]
10/03/2016  
139 pg, 487.6 KB
Appellee’s Brief filed by Appellee USA. (ECF: Aileen Cannon) [Entered: 10/03/2016 10:11 AM]
10/04/2016 Received paper copies of EBrief filed by Appellee USA in 14-11699, 15-12697. [14-11699, 15-12697] [Entered: 10/05/2016 11:39 AM]
10/05/2016 Over the phone 14-day extension requested by Gabbie T. for Appellee’s counsel, Aileen Cannon, granted by Clerk. Awaiting Supplemental Appendix is due to be filed on 10/25/2016 as to Appellee United States of America.. [14-11699, 15-12697] [Entered: 10/05/2016 02:26 PM]
10/13/2016  
522 pg, 121.28 MB
Supplemental Appendix [2 VOLUMES] filed by Appellee USA. (ECF: Aileen Cannon) [Entered: 10/13/2016 05:14 PM]
10/14/2016 Received paper copies of EAppendix filed by Appellee USA in 14-11699, 15-12697. 2 VOLUMES – 2 SETS [14-11699, 15-12697] [Entered: 10/17/2016 07:57 AM]
10/20/2016  
6 pg, 92.35 KB
MOTION for extension of time to file reply brief to 12/19/2016 filed by Anthony Livoti, Jr.. Motion is Unopposed. [7941211-1] (ECF: Richard Klugh) [Entered: 10/20/2016 07:31 PM]
10/27/2016  
2 pg, 162.59 KB
ORDER: Motion for extension to file reply brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [7941211-2] in 14-11699 Reply brief due on 12/19/2016. GBT [14-11699, 15-12697] [Entered: 10/27/2016 09:17 AM]
12/19/2016  
7 pg, 94.02 KB
MOTION for extension of time to file reply brief to 01/18/2017 filed by Anthony Livoti, Jr.. Motion is Unopposed. [7992724-1] (ECF: Richard Klugh) [Entered: 12/19/2016 10:05 PM]
12/28/2016  
2 pg, 43.1 KB
ORDER: Motion for Extension to file reply brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [7992724-2] in 14-11699 Reply Brief due on 01/18/2017. GBT [14-11699, 15-12697] [Entered: 12/28/2016 10:07 AM]
01/18/2017  
7 pg, 94.16 KB
MOTION for extension of time to file reply brief to 02/17/2017 filed by Anthony Livoti, Jr.. Motion is Unopposed. [8016236-1] (ECF: Richard Klugh) [Entered: 01/18/2017 09:12 PM]
01/23/2017  
2 pg, 24.75 KB
ORDER: Appellant’s motion for an extension of time for filing their reply brief is GRANTED. [8016236-2] Appellant’s reply brief is due on 02/17/2017. GBT [14-11699, 15-12697] [Entered: 01/23/2017 02:37 PM]
02/17/2017  
7 pg, 94.12 KB
MOTION for extension of time to file reply brief to 03/20/2017 filed by Anthony Livoti, Jr.. Motion is Unopposed. [8047195-1] (ECF: Richard Klugh) [Entered: 02/17/2017 07:23 PM]
02/24/2017 Notice of deficient Motion filed by Richard Carroll Klugh, Jr. for Anthony Livoti, Jr. and Mrs. Aileen Cannon for USA . 14-11699 & 15-12697 are consolidated appeals. When filing documents please upload in both appeals . [14-11699, 15-12697] [Entered: 02/24/2017 10:10 AM]
02/24/2017  
2 pg, 35.64 KB
ORDER: The 4th motion for extension of time to file the Appellant’s reply brief is GRANTED. The brief is due March 20, 2017, with the Appellant’s supplemental appendix, if any, due no later than seven days from the filing date of the brief. [8047195-2] GBT [14-11699, 15-12697] [Entered: 02/24/2017 04:47 PM]
03/20/2017  
7 pg, 94.32 KB
MOTION for extension of time to file reply brief to 04/19/2017 filed by Anthony Livoti, Jr.. Motion is Unopposed. [8075387-1] (ECF: Richard Klugh) [Entered: 03/20/2017 05:51 PM]
03/31/2017  
2 pg, 31.75 KB
ORDER: Motion for extension to file reply brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [8075387-2] [8075388-2] Reply brief due on 04/19/2017. GBT [14-11699, 15-12697] [Entered: 03/31/2017 04:42 PM]
04/19/2017  
7 pg, 94.71 KB
MOTION for extension of time to file reply brief to 05/18/2017 filed by Anthony Livoti, Jr.. Motion is Unopposed. [8105861-1] (ECF: Richard Klugh) [Entered: 04/19/2017 09:16 PM]
04/25/2017  
2 pg, 51.8 KB
ORDER: Motion for extension to file reply brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [8105861-2] in 14-11699, Motion for extension to file reply brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [8105862-2] in 15-12697 Reply brief due on 05/18/2017. GBT [14-11699, 15-12697] [Entered: 04/25/2017 05:33 PM]
05/16/2017  
7 pg, 94.56 KB
MOTION for extension of time to file reply brief to 06/19/2017 filed by Anthony Livoti, Jr.. Motion is Unopposed. [8132451-1] (ECF: Richard Klugh) [Entered: 05/16/2017 07:30 PM]
05/22/2017  
2 pg, 112.83 KB
ORDER: Motion for extension to file reply brief filed by Appellant Anthony Livoti, Jr. is GRANTED. [8132451-2] Reply brief due on 06/19/2017. GBT [Entered: 05/22/2017 10:27 AM]
06/19/2017  
27 pg, 145.07 KB
Reply Brief filed by Appellant Anthony Livoti, Jr.. (ECF: Richard Klugh) [Entered: 06/19/2017 05:05 PM]
06/22/2017 Received paper copies of EBrief filed by Appellant Anthony Livoti, Jr. in 14-11699, 15-12697. [14-11699, 15-12697] [Entered: 06/28/2017 09:56 AM]
06/30/2017 The Court has determined that oral argument will be necessary in this case. Please forward 3 additional copies of the 1 volumes of Appendix filed 4/11/16 by Attorney Richard Carroll Klugh, Jr. for Appellant Anthony Livoti, Jr. in 14-11699 to the Clerk’s Office, Attention: Jenifer Tubbs. Your prompt attention to this matter is appreciated. [14-11699, 15-12697] [Entered: 06/30/2017 04:17 PM]
06/30/2017 The Court has determined that oral argument will be necessary in this case. Please forward 3 additional copies of the 2 volumes of Supplemental Appendix filed 10/13/16 by Attorney Mrs. Aileen Cannon for Appellee USA in 14-11699 to the Clerk’s Office, Attention: Jenifer Tubbs. Your prompt attention to this matter is appreciated. [14-11699, 15-12697] [Entered: 06/30/2017 04:17 PM]
07/12/2017 Additional copies of Appendix (3 sets – 1 vol ea) received from Richard Carroll Klugh, Jr. for Anthony Livoti, Jr. in 14-11699 and forwarded to the record room. [14-11699, 15-12697] [Entered: 07/12/2017 03:08 PM]
07/14/2017 Additional copies of Supplemental Appendix (3 sets – 2 vols ea) received from Mrs. Aileen Cannon for USA and forwarded to the record room. (Appeal 15-12697 has the same apx as this appeal.)–[Edited 07/14/2017 by TLH] [Entered: 07/14/2017 11:18 AM]
08/18/2017  Open Restricted Document
0 pg, 0 KB
Assigned to tentative calendar number 5 in Miami during the week of November 13, 2017. Counsel must be logged into CM/ECF in order to view the attached calendar. [14-11699, 15-12697] [Entered: 08/18/2017 10:48 AM]
09/08/2017 This appeal has been removed from tentative calendar # 5 and will be reassigned at a later date. [14-11699, 15-12697] [Entered: 09/08/2017 03:51 PM]
10/04/2017  Open Restricted Document
0 pg, 0 KB
Assigned to tentative calendar number 9 in Miami during the week of January 8, 2018. Counsel must be logged into CM/ECF in order to view the attached calendar. [14-11699, 15-12697] [Entered: 10/04/2017 09:43 AM]
10/11/2017 This appeal has been removed from tentative calendar # 9 and will be reassigned at a later date. [14-11699, 15-12697] [Entered: 10/11/2017 01:39 PM]
10/18/2017  Open Restricted Document
0 pg, 0 KB
Assigned to tentative calendar number 11 in Miami during the week of January 29, 2018. Counsel must be logged into CM/ECF in order to view the attached calendar. [14-11699, 15-12697] [Entered: 10/18/2017 11:29 AM]
10/24/2017 This appeal has been removed from tentative calendar # 11 and will be reassigned at a later date. [14-11699, 15-12697] [Entered: 10/24/2017 09:32 AM]
12/19/2017  Open Restricted Document
0 pg, 0 KB
Assigned to tentative calendar number 17 in Miami during the week of April 9, 2018. Counsel must be logged into CM/ECF in order to view the attached calendar. [14-11699, 15-12697] [Entered: 12/19/2017 02:00 PM]
01/05/2018 This appeal has been removed from tentative calendar # 17 and will be reassigned at a later date. [14-11699, 15-12697] [Entered: 01/05/2018 04:28 PM]
01/29/2018  Open Restricted Document
0 pg, 0 KB
Assigned to tentative calendar number 21 in Miami during the week of May 14, 2018. Counsel must be logged into CM/ECF in order to view the attached calendar. [14-11699, 15-12697] [Entered: 01/29/2018 09:56 AM]
03/23/2018  
40 pg, 198.64 KB
Notice of Exhibits filed by Attorney Mrs. Aileen Cannon for Appellee USA. (ECF: Aileen Cannon) [Entered: 03/23/2018 03:15 PM]
03/26/2018  Open Restricted Document
1 pg, 15.75 KB
Calendar issued as to cases to be orally argued the week of 05/14/2018 in Miami, Florida. Counsel are directed to electronically acknowledge receipt of this calendar by docketing the Calendar Receipt Acknowledged event in ECF. Counsel must be logged into CM/ECF in order to view the attached calendar. [14-11699, 15-12697] [Entered: 03/26/2018 02:01 PM]
03/26/2018 Oral argument scheduled. Argument Date: Tuesday, 05/15/2018 Argument Location: Miami, FL. [14-11699, 15-12697] [Entered: 03/26/2018 03:39 PM]
03/26/2018 Attorney Mrs. Aileen Cannon for Appellee USA hereby acknowledges receipt of a copy of the printed calendar for 05/15/2018. AUSA AIleen Cannon, 305-961-9002 will present argument. (ECF: Aileen Cannon) [Entered: 03/26/2018 06:15 PM]
05/15/2018 Oral argument held. Oral Argument participants were Richard Carroll Klugh, Jr. for Appellant Anthony Livoti, Jr. and Mrs. Aileen Cannon for Appellee USA in 14-11699. [14-11699, 15-12697] [Entered: 05/15/2018 10:45 AM]
10/04/2018  
1 pg, 9.03 KB
Judgment entered as to Appellant Anthony Livoti, Jr. in 14-11699, 15-12697. [14-11699, 15-12697] [Entered: 10/04/2018 10:34 AM]
10/04/2018  
31 pg, 118.27 KB
Opinion issued by court as to Appellant Anthony Livoti, Jr. in 14-11699, 15-12697. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court’s Opinions page at this link http://www.ca11.uscourts.gov/opinions. [14-11699, 15-12697] [Entered: 10/04/2018 10:40 AM]
10/25/2018  
38 pg, 759.94 KB
Petition for panel rehearing only filed by Appellant Anthony Livoti, Jr.. [14-11699] (ECF: Richard Klugh) [Entered: 10/25/2018 09:58 PM]
11/01/2018 Received paper copies of E-PFR filed by Appellant Anthony Livoti, Jr. in 14-11699, 15-12697. [14-11699, 15-12697] [Entered: 11/01/2018 10:39 AM]
01/10/2019  
3 pg, 43.57 KB
ORDER: Petition for panel rehearing only filed by Appellant Anthony Livoti, Jr. is DENIED. [8666101-1] [Entered: 01/10/2019 02:33 PM]
01/18/2019  
2 pg, 454.17 KB
Mandate issued as to Appellant Anthony Livoti, Jr. in 14-11699, 15-12697. [14-11699, 15-12697] [Entered: 01/18/2019 09:36 AM]

Appellate Circuit

Constance Daniels, Student of Hard Knocks, Admonished Florida Lawyer and Friend of The Eleventh Circuit

LIF cannot comprehend how the People of Florida and the United States of America are so accepting of Brazen Corruption.

Published

on

LIF COMMENTARY

The article below starts with Constance Daniels failure to pay for her law school tuition loan issued in 2003. She defaulted in 2005 per the complaint. The USA won a judgment of $164k+ in 2011.

In 2010, Wells Fargo commenced foreclosure proceedings in state court, Hillsborough County.

While all this was going on, Ms Daniels, a Republican, was attempting to become a State judge in 2014, which failed.

In late November of 2017 a settlement was reached, dismissing the Wells Fargo foreclosure complaint.

In 2017-2018, lawyer Daniels was failing to look after her client(s). Many moons later, in 2021, that would result in a slap on the wrist by the referee, Hon. Daniel D. Diskey for Fl. Bar.

Then we move onto the June 2018 complaint, filed by Daniels against the mortgage servicer. It was removed to the lower court in Middle District  of Florida Federal Court.

The court, via one of the Moody clan of judges, sided with Select Portfolio Servicing, LLC and this formed the appeal which was decided this week by the 11th Circuit.

In Nov. 2020, Wells Fargo filed a renewed foreclosure complaint against Daniels and her homestead in State court. In Sept 2021, Wells Fargo voluntarily dismissed the case and terminated the lis pendens ‘due to loan modification’.

The issue for LIF in this case is quite clear. Who the 11th Circuit has chosen to upend it’s prior stance that mortgage servicers can do no wrong under the FDCPA, despite irrefutable facts confirming otherwise.

For example, LIF refers to the case we highlighted regarding a deficiency judgment (State case, March 2022):

Florida Lawyer Stephanie Schneider Appeals a Mortgage Foreclosure Deficiency Judgment

In that case, LIF investigated beyond the court opinions to discover the wife is a Florida Lawyer and her husband, Laurence Schneider is owner of S&A Capital, Inc., a mortgage investment company, has built a national portfolio of performing mortgages that have been written off by other financial institutions.

Our angst is clear. Lawyers are being treated preferentially by the courts over regular citizens and homeowners.

In the case of Daniels, whilst she may have legitimate arguments, there have been many citizens who have failed before her by the wordsmithing by the Federal and Appellate Court(s), which has refused to apply the correct legal interpretation of the FDCPA, or clarify the question(s) with the federal consumer agency, the CFPB.

Whilst LIF is unhappy with the anti-consumer watchdog, the Consumer Financial Protection Bureau (CFPB) which is a revolving door for staff to leave the Bureau and go work for a creditor rights law firm without any restriction or time limit (non-compete), the Daniels case should have been referred to the CFPB for interpretation about the matters of ‘first impression’.

The Second Circuit recently did so for a RESPA question in Naimoli v Ocwen and we highlighted the case on our sister website, LawsInTexas.com (Laws In Texas). Instead of doing so in Daniels, there is a dissenting opinion by Judge Lagoa, who’s father in law is a  senior judge in SD Florida (Paul C. Huck) and her hubby is a Jones Day Partner and apparently the leader of the Miami Chapter of the Federalist Society. Lagoa herself is a former Florida Supreme Court justice appointed by Gov DeSantis who ‘ensured he puts conservatives on the bench so that anyone coming to court knows how the court will rule’.

LIF anticipates the Daniels case will be subject to a rehearing petition and presented to the full en banc court for reconsideration. The opinion here is similar to the recent Newsom FDCPA opinion, which was too negative towards Wall St and the financial banking services community. As such, it was vacated by the en banc panel while they reconsider. The courts’ decision is currently pending.

In this case, there is still time for the 11th Circuit to correctly ask the CFPB to provide its opinion on the underlying facts raised on appeal and decided by the 3-panel.

However, what the judiciary won’t do is apply this retroactively to the thousands of cases which have been incorrectly tossed in the last 14 years, resulting in homeowners losing their homes to wrongful foreclosures.

United States v. Daniels (2011)

(8:11-cv-01058)

District Court, M.D. Florida

MAY 13, 2011 | REPUBLISHED BY LIT: MAY 26, 2022

USA Motion for Summary Judgment with Exhibits, Doc. 13, Aug 17, 2011

ORDER granting  Motion for summary judgment in favor of the Plaintiff and against the defendant in the amount of $109,813.74,

together with accrued interest in the amount of $54,097.10 as of February 28, 2011,

plus interested at the rate of 8.25 percent per annum and a daily rate of $24.80, until the date of judgment;

for post-judgment interest, at the legal rate, from the entry of final judgment until the date of payment;

and for such other costs of litigation otherwise allowed by law.

The Clerk of Court is directed to close the case.

Signed by Judge Elizabeth A. Kovachevich on 9/22/2011.

(SN) (Entered: 09/22/2011)

U.S. District Court
Middle District of Florida (Tampa)
CIVIL DOCKET FOR CASE #: 8:11-cv-01058-EAK-AEP

USA v. Daniels
Assigned to: Judge Elizabeth A. Kovachevich
Referred to: Magistrate Judge Anthony E. Porcelli
Demand: $164,000
Cause: 28:1345 Default of Student Loan
Date Filed: 05/13/2011
Date Terminated: 09/22/2011
Jury Demand: None
Nature of Suit: 152 Contract: Recovery Student Loan
Jurisdiction: U.S. Government Plaintiff
Plaintiff
USA represented by I. Randall Gold
US Attorney’s Office – FLM
Suite 3200
400 N Tampa St
Tampa, FL 33602-4798
813/274-6026
Fax: 813/274-6247
Email: FLUDocket.Mailbox@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
V.
Defendant
Constance Daniels represented by Constance Daniels
PO Box 6219
Brandon, FL 33608
PRO SE

 

Date Filed # Docket Text
05/13/2011 1 COMPLAINT against Constance Daniels filed by USA. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Civil Cover Sheet)(MRH) (Entered: 05/13/2011)
05/13/2011 2 Summons issued as to Constance Daniels. (MRH) (Entered: 05/13/2011)
05/13/2011 3 ORDER regulating the processing of civil recovery actions. Service must be perfected by 09/10/2011. Signed by Deputy Clerk on 5/13/2011. (MRH) (Entered: 05/13/2011)
05/13/2011 4 STANDING ORDER: Filing of documents that exceed twenty-five pages. Signed by Judge Elizabeth A. Kovachevich on 7/15/08. (MRH) (Entered: 05/13/2011)
05/19/2011 5 NOTICE of designation under Local Rule 3.05 – track 1 (CLM) (Entered: 05/19/2011)
05/20/2011 6 CERTIFICATE OF SERVICE re 3 ORDER regulating the processing of civil recovery actions by USA (Gold, I.) Modified on 5/20/2011 (MRH). (Entered: 05/20/2011)
05/25/2011 7 CERTIFICATE OF SERVICE by USA (Notice of Designation Under Local Rule 3.05) (Gold, I.) (Entered: 05/25/2011)
07/06/2011 8 RETURN of service executed on 7/5/11 (Marshal 285) by USA as to Constance Daniels. (MRH) (Entered: 07/06/2011)
07/27/2011 9 MOTION for default judgment against Constance Daniels by USA. (Gold, I.) Modified on 7/27/2011 (MRH). NOTE: TERMINATED. INCORRECT MOTION RELIEF. ATTORNEY NOTIFIED. ATTORNEY TO REFILE. (Entered: 07/27/2011)
07/27/2011 10 MOTION for entry of clerk’s default against Constance Daniels by USA. (Gold, I.) Motions referred to Magistrate Judge Anthony E. Porcelli. (Entered: 07/27/2011)
07/28/2011 11 CLERK’S ENTRY OF DEFAULT as to Constance Daniels. (MRH) (Entered: 07/28/2011)
07/29/2011 12 ANSWER to 1 Complaint by Constance Daniels.(BES) (Entered: 07/29/2011)
08/17/2011 13 MOTION for summary judgment by USA. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Gold, I.) (Entered: 08/17/2011)
09/09/2011 14 ENDORSED ORDER TO SHOW CAUSE as to Constance Daniels.. The plaintiff filed a motion for summary judgment on 8/17/11. The defendant had up to and including 9/3/11 to respond to the motion. To date no response has been filed. Therefore, it is ORDERED that the defendant has up to and including 9/19/11 in which to show cause why the pending motion should not be granted. Signed by Judge Elizabeth A. Kovachevich on 9/9/2011. (SN) (Entered: 09/09/2011)
09/22/2011 15 ORDER granting 13 Motion for summary judgment in favor of the Plaintiff and against the defendant in the amount of $109,813.74, together with accrued interest in the amount of $54,097.10 as of February 28, 2011, plus interested at the rate of 8.25 percent per annum and a daily rate of $24.80, until the date of judgment; for post-judgment interest, at the legal rate, from the entry of final judgment until the date of payment; and for such other costs of litigation otherwise allowed by law. The Clerk of Court is directed to close the case.. Signed by Judge Elizabeth A. Kovachevich on 9/22/2011. (SN) (Entered: 09/22/2011)
10/12/2011 16 ABSTRACT of judgment as to Constance Daniels. (DMS) (Entered: 10/12/2011)

Order GRANTING Summary Judgment for $164k Student Loan Debt, Doc. 15, Sep 22, 2011

Daniels v. Select Portfolio Servicing, Inc.

(2018-Present)

(8:18-cv-01652)

District Court, M.D. Florida

ORDER

THIS CAUSE comes before the Court upon Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint (Dkt. 24) and Plaintiff’s Response in Opposition (Dkt. 27).

The Court, having reviewed the motion, response, and being otherwise advised in the premises, concludes that Defendant’s motion should be granted.

Specifically, Plaintiff’s second amended complaint will be dismissed with prejudice because any further amendment is futile.

BACKGROUND

As the Court explained in its prior Order granting Defendant’s motion to dismiss, (see Dkt. 22), Plaintiff Constance Daniels initially filed suit in Florida state court against Defendant Select Portfolio Servicing, Inc. (“SPS”) alleging three Florida claims, which included a claim under Florida’s civil Racketeer Influenced and Corrupt Organizations (“RICO”) Act.

On July 10, 2018, SPS removed the case to this Court based on diversity jurisdiction.

On August 6, 2018, SPS moved to dismiss the entire complaint.

In relevant part, SPS argued that the complaint failed to allege any of the elements of a RICO claim.

On August 27, 2018, Daniels filed an amended complaint, which mooted SPS’s motion to dismiss.

Daniels’ amended complaint alleged two claims: a claim under the Fair Debt Collection Practices Act (“FDCPA”) and a claim under the Florida Consumer Collections Practices Act (“FCCPA”).

Both claims relied on the same allegations.

To summarize, Daniels alleged that SPS had “improperly servic[ed]” her mortgage loan “in reckless disregard” of her consumer rights. (Dkt. 12).

The amended complaint did not attach any mortgage statements.

SPS moved to dismiss Daniels’ amended complaint based on her failure to allege that SPS ever attempted to collect the mortgage balance.

The Court granted SPS’s motion.

The Court noted that the amended complaint did not identify or attach any communication from SPS to Daniels.

The Court also surmised that the dispute was more akin to a dispute about an improper accounting of Daniels’ mortgage.

The Court dismissed the FDCPA and FCCPA claims and provided Daniels a final opportunity to amend her complaint.

Daniels filed a second amended complaint.

The allegations are largely unchanged.

But, significantly, Daniels attaches multiple monthly mortgage statements that SPS sent to her.

She now claims that these mortgage statements constitute debt collection activity under the FDCPA and FCCPA.

SPS’s motion to dismiss argues that the monthly mortgage statements comply with Regulation Z of the Truth in Lending Act (the “TILA”)—they were not communications in connection with the collection of a debt—and therefore do not constitute debt collection activity under the FDCPA and FCCPA.

As explained further below, the Court agrees with SPS’s position based on the Court’s detailed review of the monthly mortgage statements.

Therefore, the second amended complaint will be dismissed with prejudice.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint when it fails to state a claim upon which relief can be granted.

When reviewing a motion to dismiss, a court must accept all factual allegations contained in the complaint as true.

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citation omitted).

It must also construe those factual allegations in the light most favorable to the plaintiff.

Hunt v. Aimco Properties, L.P., 814 F.3d 1213, 1221 (11th Cir. 2016) (internal citation omitted).

To withstand a motion to dismiss, the complaint must include “enough facts to state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Pleadings that offer only “labels and conclusions,” or a “formulaic recitation of the elements of a cause of action,” will not do.

Twombly, 550 U.S. at 555.

DISCUSSION

The FDCPA and FCCPA prohibit debt collectors from using a “false, deceptive, or misleading representation or means in connection with the collection of any debt.”

See e.g. 15 U.S.C. § 1692e (emphasis added);

Fla. Stat. § 559.72 (“In collecting debts, no person shall . . .”) (emphasis added).

It is axiomatic then that the “challenged conduct is related to debt collection” to state a claim under either statute.

Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1216 (11th Cir. 2012);

see also Garrison v. Caliber Home Loans, Inc., 233 F. Supp. 3d 1282, 1286 (M.D. Fla. 2017) (“the FCCPA is a Florida state analogue to the federal FDCPA.”) (internal citations omitted).

“[T]he Eleventh Circuit has not established a bright-line rule” as to what qualifies as “in connection with the collection of any debt.”

Dyer v. Select Portfolio Servicing, Inc., 108 F. Supp. 3d 1278, 1280 (M.D. Fla. 2015).

“As a general principle, the absence of a demand for payment is not dispositive,” and courts should “instead consider whether the overall communication was intended to induce the debtor to settle the debt.”

Wood v. Citibank, N.A., No. 8:14-cv-2819-T-27EAJ, 2015 WL 3561494, at *3 (M.D. Fla. June 5, 2015) (citations omitted).

The second amended complaint attaches multiple monthly mortgage statements.1

Because the communications at issue here are all monthly mortgage statements, a discussion of the TILA is necessary.

The TILA requires SPS, a servicer, to send monthly mortgage statements.

12 C.F.R. § 1026.41. Specifically, 12 C.F.R. § 1026.41(d) requires that servicers provide debtors with detailed monthly mortgage statements containing, among other things: the “amounts due;” the “payment due date;” “the amount of any late payment fee, and the date that fee will be imposed if payment has not been received;” “an explanation of amount due, including a breakdown showing how much, if any, will be applied to principal, interest, and escrow and, if a mortgage loan has multiple payment options, a breakdown of each of the payment options;” “any payment amount past due;” a breakdown of “the total of all payments received since the last statement” and “since the beginning of the current calendar year;” “a list of all transaction activity that occurred since the last statement;” “partial payment information;” “contact information;” and detailed “account information” and “delinquency information.”

The Consumer Financial Protection Bureau (the “CFPB”) has issued a bulletin providing that a

“servicer acting as a debt collector would not be liable under the FDCPA for complying with [monthly mortgage statement] requirements.”

Implementation Guidance for Certain Mortgage Servicing Rules, 10152013 CFPB GUIDANCE, 2013 WL 9001249 (C.F.P.B. Oct. 15, 2013).

Courts have largely followed this guidance.

See, e.g., Jones v. Select Portfolio Servicing, Inc., No. 18-cv-20389, 2018 WL 2316636, at *3 (S.D. Fla. May 2, 2018) (citing 12 C.F.R. § 1026.41(d));

Brown v. Select Portfolio Servicing, Inc., No. 16-62999-CIV, 2017 WL 1157253 (S.D. Fla. Mar. 24, 2017) (noting the guidance and finding that monthly mortgage statements in compliance with the TILA were not debt collection).

The monthly mortgage statements at issue here were in conformity with the TILA requirements.

Moreover, the subject statements were substantially similar to model form H-30(B) provided by Appendix X to Part 1026 of TILA Regulation Z.

See also Jones, 2018 WL 2316636, at *4 (noting the similarities between a monthly mortgage statement and the model form in concluding no debt collection).

Although the monthly mortgage statements may not be identical to model form H-30(B), the differences are not significant deviations.

Notably, the plaintiff in Brown brought a nearly identical lawsuit against SPS.

The court explained in detail why the plaintiff was unable to state a claim under the FDCPA and FCCPA because the monthly mortgage statement was required to be sent pursuant to the TILA.

The complaint in Brown was dismissed with prejudice because “amendment would be futile” given that the basis for the claims was a monthly mortgage statement that was not actionable as a matter of law.

See 2017 WL 1157253, at *2-*4.

Also, the Jones court discussed in detail the numerous prior decisions addressing this issue, including multiple cases from this district that have held that monthly mortgage statements

“are almost categorically not debt collection communications under the FDCPA.”

2018 WL 2316636, at *5 (citing cases).

The particular monthly mortgage statements before the court in Jones were also sent by SPS and were substantively identical to the statements at issue in this case and in Brown.

Most recently, in Mills v. Select Portfolio Servicing, Inc., No. 18-cv-61012- BLOOM/Valle, 2018 WL 5113001 (S.D. Fla. Oct. 19, 2018), the court “agree[d] with the reasoning in Jones and [concluded] that the Mortgage Statements at issue [were] not communications in connection with a collection of a debt.” Id. at *2.

In conclusion, the substance of the monthly mortgage statements at issue in this case is substantially similar to model form H-30(B).

Any minor discrepancies in the language—when taken in the context of the document as an otherwise carbon copy of form H-30(B)—do not take the statements out of the realm of a monthly mortgage statement and into the realm of debt collection communications.

It is therefore ORDERED AND ADJUDGED that:

1. Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint (Dkt.

24) is granted.

2. Plaintiff’s Second Amended Complaint is dismissed with prejudice.

3. The Clerk of Court is directed to close this case and terminate any pending motions as moot.

DONE and ORDERED in Tampa, Florida on December 18, 2018.

 

 

 

 

Copies furnished to: Counsel/Parties of Record

Judge Bert Jordan’s “Reputation” Warning to New Florida Lawyers

Constance Daniels Admonished by the Florida Bar (2021)

Constance Daniels, P.O. Box 6219, Brandon, admonishment in writing and directed to attend Ethics School effective immediately following a November 24 court order.

(Admitted to practice: 1995)

Daniels failed to act with reasonable diligence and failed to communicate with her client in connection with a dissolution of marriage action.

Daniels also failed to timely respond to the Bar’s formal complaint.

(Case No: SC21-683)

Constance Daniels v. Select Portfolio Servicing, Inc. (2022)

11th Cir., Published Opinion

(19-10204, May 24, 2022)

“A matter of first impression” 14 Years after the great recession and greatest theft of citizens homes in the history of the United States.

It’s quite incredulous how the 11th Circuit selects a Sanctioned Fl. Republican Lawyer, a failed judicial candidate and one who is facing foreclosure, for this ‘landmark’ published opinion in 2022.

Panel Author, Judge Bert Jordan, joined by Judge Brasher with a dissenting opinion by Judge Babs Lagoa

11th Circuit revives FDCPA lawsuit over mortgage statement language

How Westlaw is Summarizing the Latest Eleventh Circuit Opinion

(May 26, 2022)

Resolving an issue of first impression, a divided federal appeals panel has held that mortgage servicers can be liable under the Fair Debt Collection Practices Act for inaccuracies in monthly mortgage statements that contain additional debt-collection language.

Daniels v. Select Portfolio Servicing Inc., No. 19-10204, (11th Cir. May 24, 2022).

In a 2-1 decision, the 11th U.S. Circuit Court of Appeals on May 24 reinstated Constance Daniels’ lawsuit against Select Portfolio Servicing Inc., in which she alleges the company used faulty mortgage statements to try to collect payments she did not owe.

Writing for the panel majority, U.S. Circuit Judge Adalberto J. Jordan acknowledged that Select Portfolio was required to issue the mortgage statements under the Truth in Lending Act, 15 U.S.C.A. § 1638.

However, the mortgage statements fell within the scope of the FDCPA’s prohibition on false or misleading representations, 15 U.S.C.A. § 1692e, because they included additional debt-collection language — “this is an attempt to collect a debt” — the opinion said.

Judge Jordan reasoned that “in determining whether a communication is in connection with the collection of a debt, what could be more relevant than a statement in the communication than ‘this is an attempt to collect a debt’?”

U.S. Circuit Judge Barbara Lagao dissented, saying the majority treated the language like “magic words” that could convert an otherwise routine mortgage statement into a communication covered by the FDCPA.

Judge Lagoa also argued that the decision created a circuit split, although the panel majority insisted that the facts of Daniels’ case distinguished it from others in which federal circuit courts seemed to reach a contrary result.

District Court tosses FDCPA claims

Daniels sued Select Portfolio in the U.S. District Court for the Middle District of Florida in July 2018.

According to the suit, Daniels had prevailed in a state court foreclosure action brought by lender Wells Fargo in 2015, with the judge sanctioning Wells Fargo and enforcing an earlier loan modification agreement between the parties.

But Daniels’ mortgage servicer, Select Portfolio, later issued several monthly mortgage statements misstating the principal balance and amount due, and falsely claiming that her loan was in arrears, the suit says.

At least three of the mortgage statements included the sentence, “This is an attempt to collect a debt,” according to the suit.
Daniels accuses Select Portfolio of using false or misleading representations in connection with the collection of a debt, in violation of the FDCA and the Florida Consumer Collection Practices Act, Fla. Stat. Ann. § 559.72.

Select Portfolio moved to dismiss, saying Daniels was attempting hold it liable for issuing mortgage statements that are required under the Truth in Lending Act.

U.S. District Judge James S. Moody Jr. agreed and dismissed the suit in December 2018. Daniels v. Select Portfolio Servs. Inc., No. 18-cv-1652, (M.D. Fla. Dec. 18, 2018).

Judge Moody said that any discrepancies in language between Select Portfolio’s monthly statements and what is required under TILA “do not take the statements out of the realm of a monthly mortgage statement and into the realm of debt collection communications.”

On appeal, Daniels argued that compliance with TILA does not make a mortgage servicer immune from suit under the FDCPA and, even if it did, the monthly statements at issue included language beyond what is necessary under TILA.

Kaelyn S. Diamond and Michael A. Ziegler of the Law Office of Michael A. Ziegler represented Daniels.

Benjamin B. Brown and Joseph T. Kohn of Quarles & Brady LLP represented Select Portfolio.

By Dave Embree

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Appellate Circuit

Deutsche Bank and Nationstar Watch as 11th Circuit Discharge the Shotgun Despite Hunt’s Pleadings

There can be no doubt that this is a frivolous appeal and we would not hesitate to order sanctions if appellant had been represented by counsel.

Published

on

Hunt v. Nationstar Mortg., No. 21-10398

(11th Cir. May 27, 2022)

MAY 27, 2022 | REPUBLISHED BY LIT: MAY 30, 2022

Before ROSENBAUM, GRANT, and MARCUS, Circuit Judges. PER CURIAM:

Christopher M. Hunt, Sr., proceeding pro se, appeals following the district court’s dismissal of his civil complaint arising out of his 2006 purchase of residential property located in Atlanta, Georgia (the “Property”).

Hunt purchased the Property using proceeds from a loan that he eventually defaulted on, which prompted Nationstar Mortgage, LLC (“Nationstar”), then servicer of the loan, to seek a non-judicial foreclosure on the Property.

After filing or being named in a variety of related lawsuits,1 Hunt filed the instant pro se complaint in Georgia state court in June 2020 and named as defendants Nationstar, the Deutsche Bank National Trust

1 See, g., Hunt v. Nationstar Mortg., LLC, 684 F. App’x 938 (11th Cir. 2017) (unpublished) (“Hunt I”);

[MARCUS, ROSENBAUM AND ANDERSON]

Hunt v. Nationstar Mortg., LLC, 779 F. App’x 669 (11th Cir. 2019) (unpublished);

[PRYOR,W., GRANT AND ANDERSON]

Hunt v. Nationstar Mortg., LLC, 782 F. App’x 762 (11th Cir. 2019) (unpublished);

[PRYOR,W., GRANT AND ANDERSON]

Deutsche Bank Tr. Co. Am., as Tr. for Fifteen Piedmont Ctr. v. Hunt, 783 F. App’x 998 (11th Cir. 2019) (unpublished).

[TJOFLAT, JORDAN AND NEWSOM]

Companies (“Deutsche Bank”), and Jay Bray, the CEO of Nationstar.

He alleged that they had committed, inter alia, mortgage fraud and wrongful foreclosure in violation of federal laws, including the Sarbanes-Oxley Act and the Dodd-Frank Act.2

The district court denied a variety of preliminary motions filed by Hunt;

dismissed, without prejudice, the complaint as to defendant Bray for failure to effect proper service;

and

dismissed, with prejudice, the complaint as to Deutsche Bank and Nationstar, because it was a “shotgun” pleading, was barred by res judicata, and failed to state a claim upon which relief could be granted.3

After thorough review, we affirm.

I.

Whether a court has subject-matter jurisdiction, including removal jurisdiction, is a question of law that we review de novo.

See McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1241 (11th Cir. 2013).

We also review de novo a denial of a motion to

2 Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (hereinafter “Sarbanes-Oxley Act”), and the Dodd-Frank Wall Street Reform and Con- sumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010) (hereinafter “Dodd-Frank Act”).

3 Hunt also named Christian Sewing, the Chief Executive Officer (“CEO”) of Deutsche Bank, as a defendant, but he later voluntarily dismissed him.

And after filing the complaint, Hunt sought to add yet another defendant, the Albertelli Law Firm (“Albertelli Law”).

Bray, Sewing and Albertelli Law have not filed any briefs on appeal.

remand to state court. Conn.

State Dental Ass’n v. Anthem Health Plans, 591 F.3d 1337, 1343 (11th Cir. 2009).

A district court’s decision regarding the indispensability of a party is reviewed for abuse of discretion.

United States v. Rigel Ships Agencies, Inc., 432 F.3d 1282, 1291 (11th Cir. 2005).

We will disturb a district court’s refusal to change venue only for a clear abuse of discretion.

Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 255 (11th Cir. 1996).

We also review the district court’s denial of a motion for recusal for abuse of discretion.

Jenkins v. Anton, 922 F.3d 1257, 1271 (11th Cir. 2019).

We review a district court’s grant of a motion to dismiss for insufficient service of process, under Rule 12(b)(5), by applying a de novo standard to questions of law, and a clear error standard to the court’s findings of fact.

Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).

But when a party fails to object to a magistrate judge’s findings or recommendations in a report and recommendation, he “waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions.” 11th Cir. R. 3-1.

Under the circumstances, we review a claim on appeal only “for plain error,” if “necessary in the interests of justice.” Id.

We review the dismissal of a “shotgun” pleading under Rule 8 for abuse of discretion.

Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1294 (11th Cir. 2018).

When appropriate, we will review a district court’s dismissal for failure to state a claim under Rule 12(b)(6) de novo.

Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1056–57 (11th Cir. 2007).

We will also review a dismissal

based on res judicata de novo.

Jang v. United Techs. Corp., 206 F.3d 1147, 1149 (11th Cir. 2000).

We review de novo a district court’s conclusions on collateral estoppel, but review its legal conclusion that an issue was actually litigated in a prior action for clear error.

Richardson v. Miller, 101 F.3d 665, 667–68 (11th Cir. 1996).

While pro se pleadings are liberally construed, issues not briefed on appeal are normally forfeited and we will generally not consider them.

Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

An appellant can abandon a claim by:

(1) making only passing reference to it;

(2) raising it in a perfunctory manner without supporting arguments and authority;

(3) referring to it only in the “statement of the case” or “summary of the argument”;

or

(4) referring to the issue as mere background to the appellant’s main arguments.

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681– 82 (11th Cir. 2014).

In addition, if a district court’s order rested on two or more independent, alternative grounds, the appellant must challenge all of the grounds to succeed on appeal.

See id. at 680.

When an appellant fails to challenge on appeal one of the grounds on which the district court based its judgment, he is deemed to have abandoned any challenge of that ground, and it follows that the judgment is due to be affirmed.

See id.

II.

Liberally construed, Hunt’s brief on appeal seeks to challenge the district court’s decisions:

(1) denying remand of his case to state court

and

denying his request to file an amended complaint adding another defendant, Albertelli Law;

(2) denying his request

to transfer the case;

(3) denying his request to disqualify the judge;

(4) dismissing, without prejudice, his complaint as to defendant Bray for failure to effect proper service;

and

(5) dismissing his complaint, with prejudice, as to Deutsche Bank and Nationstar.

To be sure, Hunt’s arguments about these decisions by the district court are not clearly stated.

But even if we were to assume that he has preserved his arguments on appeal, they fail on the merits.

First, we are unpersuaded by Hunt’s arguments that the district court should have allowed him to file an amended complaint to add another party to the suit, which would have deprived the federal court of jurisdiction, and should have remanded the case to state court.

Federal courts have diversity-of-citizenship jurisdiction when the parties are citizens of different states and the amount in controversy exceeds $75,000.

28 U.S.C. § 1332(a)(1).

A corporation is a citizen of every state where it was incorporated and the one state in which it has its principal place of business.

Daimler AG v. Bauman, 571 U.S. 117, 133, 137 (2014); 28 U.S.C. § 1332(c)(1).

A defendant may remove any civil action brought in a state court to a federal district court that has original jurisdiction over the action.

28 U.S.C. § 1441(a).

The removing party bears the burden of proving that removal jurisdiction exists.

McGee, 719 F.3d at 1241.

Here, the district court did not err in denying Hunt’s motion to remand. As we’ve held in a previous appeal, his motion was based on his belated and fraudulent attempts to join Albertelli Law, in an effort to defeat the district court’s diversity jurisdiction.

See Hunt I, 684 F. App’x. at 942-44.

However, Hunt asserted federal

claims in his complaint, so the district court had jurisdiction in any event.

28 U.S.C. § 1441(a).

Accordingly, the district court correctly denied Hunt’s requests to remand the case and acted within its discretion to deny joinder.

Rigel Ships Agencies, Inc., 432 F.3d at 1291.

We also find no merit to Hunt’s claims that the district court should have transferred venue of his lawsuit.

A district court may transfer a civil action to any other district or division where it may have been brought “for the convenience of the parties and witnesses, and in the interest of justice.”

Robinson, 74 F.3d at 260 (quoting 28 U.S.C. § 1404(a)).

But in this case, the district court did not err because Hunt did not provide any cognizable reason for a transfer.

It appears that Hunt’s transfer request was based on his belief that case law in the United States District Court for the Middle District of Georgia would be more favorable to him – which is not a legitimate reason for transfer.

See 28 U.S.C. § 1404(a).

Similarly, we reject Hunt’s argument that the district court judge should have recused himself.

A judge must sua sponte recuse himself “in any proceeding in which his impartiality might reasonably be questioned” or “

[w]here he has a personal bias or prejudice concerning a party.”

28 U.S.C. § 455(a), (b)(1).

“The test is whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality.”

Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988).

“Ordinarily, a judge’s rulings in the same or a related case may not serve as

the basis for a recusal motion.”

McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir. 1990).

“The judge’s bias must be personal and extrajudicial; it must derive from something other than that which the judge learned by participating in the case.”

Id.

“The exception to this rule is when a judge’s remarks in a judicial context demonstrate such pervasive bias and prejudice that it constitutes bias against a party. Mere friction . . . however, is not enough to demonstrate pervasive bias.”

Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1329 (11th Cir. 2002) (quotation marks omitted).

As the record before us makes clear, no “objective, disinterested, lay observer fully informed of the facts underlying” these circumstances “would entertain a significant doubt about the judge’s impartiality.”

Parker, 855 F.2d at 1524.

Accordingly, the district court did not abuse its discretion in denying Hunt’s request for recusal or disqualification.

Nor do we find any merit to Hunt’s argument that the district court erred in dismissing the complaint against defendant Bray for lack of proper service.

When a federal court is considering the sufficiency of process after removal, it does so by looking to the state law governing process.

See Usatorres v. Marina Mercante Nicaraguenses, S.A., 768 F.2d 1285, 1286 n.1 (11th Cir. 1985).

Georgia law provides that service made “outside the state” of Georgia is to be done “in the same manner as service is made within the state.”

O.C.G.A. § 9-10-94.

Under Georgia law, service on natural persons is to be made “personally, or by leaving copies thereof at the defendant’s dwelling house or usual place of abode with some

person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized . . . to receive service of process.”

O.C.G.A. § 9-11-4(e)(7).

Notably, Hunt does not dispute these proposed findings set forth by the magistrate judge’s Report and Recommendation (“R&R”), that Hunt:

(1) mailed service to Bray;

and

(2) completed “corporate service” on Deutsche Bank, which Hunt asserted was also effective to serve Bray.

11th Cir. R. 3-1.

But, as the district court determined, Georgia law applied here and required personal service in these circumstances.

Albra, 490 F.3d at 829; O.C.G.A. § 9-11-4(e)(7).

Bray therefore was not properly served under Georgia law, and, for that reason, the district court did not err in dis- missing Hunt’s suit without prejudice as to Bray.

Finally, we find no error in the district court’s denial of injunctive relief and its dismissal of Hunt’s complaint against the two remaining defendants, Nationstar and Deutsche Bank.

A district court has the inherent authority to control its docket and ensure the prompt resolution of lawsuits, which includes the ability to dismiss a complaint on “shotgun” pleading grounds.

Shabanets, 878 F.3d at 1295.

We have described four types of “shotgun” com- plaints:

(1) those containing multiple counts where each count adopts all allegations of all preceding counts;

(2) those replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action;

(3) those that do not separate each cause of action or claim for relief into different counts;

and

(4) those asserting multiple claims against multiple defendants without

specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against.

Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1321–23 (11th Cir. 2015).

“Shotgun” pleadings violate Rule 8, which requires “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), by failing to, in one degree or another, give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.

Shabanets, 878 F.3d at 1294–96.

We generally require district courts to allow a litigant at least one chance to remedy any deficiencies before dismissing the complaint with prejudice, where a more carefully drafted complaint might state a claim.

See id.; Silberman v. Miami Dade Transit, 927 F.3d 1123, 1132 (11th Cir. 2019).

But it need not grant leave to amend the complaint when further amendment would be futile.

Silberman, 927 F.3d at 1133.

Under federal law, res judicata, or claim preclusion, bars a subsequent action if

“(1) the prior decision was rendered by a court of competent jurisdiction;

(2) there was a final judgment on the merits;

(3) the parties were identical in both suits;

and

(4) the prior and present causes of action are the same.”

Jang, 206 F.3d at 1148– 49 & n.1 (quotation marks omitted).

We have held that “if a case arises out of the same nucleus of operative facts, or is based upon the same factual predicate, as a former action, the two cases are really the same ‘claim’ or ‘cause of action’ for purposes of res judicata.”

Baloco v. Drummond Co., Inc., 767 F.3d 1229, 1247 (11th

Cir. 2014) (quotation marks omitted and alterations adopted).

“In addition, res judicata applies not only to the precise legal theory presented in the prior case, but to all legal theories and claims arising out of the nucleus of operative fact” that could have been raised in the prior case.

Id. (quotation marks omitted and alterations adopted).

Collateral estoppel, or issue preclusion, “refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided.”

Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984).

Thus, “collateral estoppel is appropriate only when the identical issue has been fully litigated in a prior case.”

In re McWhorter, 887 F.2d 1564, 1567 (11th Cir. 1989) (quotation marks omitted).

“The party seeking to invoke collateral estoppel bears the burden of proving that the necessary elements have been satisfied.”

Id. at 1566.

“[C]hanges in the law after a final judgment [generally] do not prevent the application of res judicata and collateral estoppel, even though the grounds on which the decision was based [may be] subsequently overruled.”

Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499, 1503 (11th Cir. 1984).

To safeguard investors in public companies and restore trust in the financial markets, Congress enacted the Sarbanes-Oxley Act of 2002, 116 Stat. 745.

See S. Rep. No. 107-146, pp. 2–11 (2002).

The Act contains several provisions, including a whistleblower protection provision which prohibits a publicly traded company or its officers from discharging an “employee” for providing information to a supervisory authority about conduct that the employee

“reasonably believes” constitutes a violation of federal laws against mail fraud, wire fraud, bank fraud, securities fraud, any SEC rule or regulation, or any provision of federal law relating to fraud against shareholders.

See 18 U.S.C. § 1514A(a)(1).

The Dodd-Frank Act whistleblower provision provides protection to individuals who provide “information relating to a violation of the securities laws to the” Securities and Exchange Commission (“SEC”).

15 U.S.C. § 78u-6(a)(6).

Thus, “[t]o sue under Dodd-Frank’s anti-retaliation provision, a person must first provide information relating to a violation of the securities laws to the [SEC].”

Dig. Realty Trust, Inc. v. Somers, 138 S. Ct. 767, 772–73 (2018) (quotation marks omitted and alterations adopted).

In his brief on appeal, Hunt does not expressly address the lower court’s “shotgun” pleading determination, and, as a result, the district court’s dismissal of the complaint is due to be affirmed.

Sapuppo, 739 F.3d at 681–82.

But in any event, the district court did not err in finding that his complaint was a “shotgun” pleading.

As the record reflects, the complaint consisted of three numbered paragraphs that spanned paragraphs and pages; failed to isolate claims by defendants;

and largely failed to discuss any facts — thereby falling into several of our identified categories of prohibited “shotgun” pleadings.

Weiland, 792 F.3d at 1321-23.

The district court also was correct that amendment would have been futile.

For one, res judicata and collateral estoppel barred Hunt’s claims for breach of contract and fraud, since Hunt sued the same parties for the same alleged breach of contract and fraud in several prior cases.

See, e.g., Hunt I, 684 F. App’x at 944.4

These decisions were final judgments and were “rendered by a court of competent jurisdiction,” “on the merits,” against the same parties, and “the prior and present causes of action [were] the same.”

Jang, 206 F.3d at 1149.

Moreover, even if some of Hunt’s claims had not been explicitly presented in any of his prior cases, they would still be barred by res judicata because every claim arose from the same facts as each of his prior cases, and he could have raised them in any of the prior proceedings.

Baloco, 767 F.3d at 1247.

Also, despite Hunt’s arguments, there have been no “changes in the law” that would “prevent the application of res judicata and collateral estoppel” in this case.

Precision Air Parts, 736 F.2d at 1503.

In addition, Hunt’s claims under the Sarbanes-Oxley Act and Dodd-Frank Act were futile because they fail to state a claim upon which relief could be granted.

As the record reflects, Hunt did not allege that he was an “employee” under the Sarbanes-Oxley Act, nor that he “provide[d] information relating to a violation of the securities laws to the [SEC]” as required under the Dodd-Frank Act.

4 To the extent that Hunt challenges the district court’s decisions under Fed. R. Civ. P. 60(b), we conclude that he has not identified any “extraordinary circumstances” entitling him to relief, and the district court did not abuse its discretion in this respect.

Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1316 (11th Cir. 2000) (quotation marks omitted).

Somers, 138 S. Ct. at 772–74.

Accordingly, Hunt did not state a cause of action under these statutes, and we affirm.

AFFIRMED.5

5 All of Hunt’s pending motions, which he filed after we imposed a filing restriction on him, are DENIED to the extent they request any relief.

For their part, Nationstar and Deutsche Bank have filed renewed motions for sanctions, requesting monetary sanctions against Hunt for his numerous motions before this Court under 11th Cir. R. 27-4.

Hunt is pro se and we DENY the motions for sanctions at this time.

See Woods v. I.R.S., 3 F.3d 403, 404 (11th Cir. 1993)

(“There can be no doubt that this is a frivolous appeal and we would not hesitate to order sanctions if appellant had been represented by counsel. However, since this suit was filed pro se, we conclude that sanctions would be inappropriate.”).

Although we are reluctant to impose sanctions on pro se appellants, we warn Hunt that our Court has imposed sanctions in circumstances like these, even for pro se litigants, and he is strongly cautioned against bringing any further frivolous motions or claims.

See Ricket v. United States, 773 F.2d 1214, 1216 (11th Cir. 1985)

(imposing sanctions on a pro se appellant who had been warned by the district court that the issues on appeal were frivolous).

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Appellate Circuit

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

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

Published

on

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

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

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

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

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

Brown said.

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

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

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

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

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

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

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

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

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

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

News4JAX Jim Piggott spoke with attorney Curtis Fallgatter,

“(Jim) Are you surprised at all?

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

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

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

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

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

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