Timothy Willson v. Bank of America, N.A.

Filing

Opinion issued by court as to Appellant Timothy D. Willson. 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.

Case: 16-13750

Date Filed: 04/10/2017

Page: 1 of 9

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-13750
Non-Argument Calendar
________________________
D.C. Docket No. 2:15-cv-14303-DMM
TIMOTHY D. WILLSON,
Plaintiff-Appellant,
versus
BANK OF AMERICA, N.A.,
Defendant-Appellee,
QBE FIRST INSURANCE AGENCY,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 10, 2017)
Before MARTIN, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:

Case: 16-13750

Date Filed: 04/10/2017

Page: 2 of 9

Timothy Willson appeals a district court order staying his suit against Bank
of America under the Colorado River1 abstention doctrine. Willson sued for
damages under Regulation X, 12 C.F.R. § 1024, which implements the Real Estate
Settlement Procedures Act of 1974 (“RESPA”), 12 U.S.C. § 2601 et seq. See 12
C.F.R. § 1024.1. He alleged violations of Regulation X during a foreclosure action
brought against his property in Florida state court. In a motion for rehearing after
the Florida court entered a final judgment of foreclosure, Willson argued
Regulation X “precluded [Bank of America from] moving for a final foreclosure
judgment.” The Florida court denied Willson’s motion for rehearing, but his
appeal of both the final judgment and motion for rehearing remains pending in the
Florida courts. The district court found Willson’s state and federal actions to be
substantially similar and that the Colorado River factors warranted abstention.
After careful review, we affirm.
I.
On November 4, Willson emailed Bank of America requesting a loan
modification. On December 1, the day of Willson’s foreclosure trial in the Florida
court, Bank of America replied to Willson stating his November 4 email was
“corrupted” and had gone to Bank of America’s “SPAM mail.” Bank of America
asked Willson to resend the email, which he did that same day.
1

Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S. Ct. 1236

(1976).
2

Case: 16-13750

Date Filed: 04/10/2017

Page: 3 of 9

On January 12, 2015, the Florida court entered a final judgment of
foreclosure. On January 17, Bank of America told Willson that he did not qualify
for a loan modification. On January 27, Willson filed a motion for rehearing in the
Florida court, in which Willson raised the argument that Regulation X “precluded
[Bank of America from] moving for a final foreclosure judgment.” He also copied
Regulation X § 1024.5(c)(1), which states RESPA or Regulation X may preempt
inconsistent state laws. The next day, the Florida court denied the motion for
rehearing. Willson’s appeal of both the final judgment and motion for rehearing
remains pending. Willson also filed for bankruptcy to prevent a foreclosure sale.
On August 27, 2015, Willson filed this action in federal court under
Regulation X. Bank of America moved for summary judgment. The district court
granted in part and denied in part the motion for summary judgment, allowing only
two counts to proceed: Count I, failure to notify Willson of receipt of his loanmodification application under 12 C.F.R. § 1024.41(b)(2)); and Count II, moving
forward with the foreclosure trial despite a pending loan-modification application
under 12 C.F.R. § 1024.41(g). The district court also declined to grant judgment to
Bank of America on Willson’s claims for damages related to litigation costs
(including filing for bankruptcy).
Bank of America then moved the district court to abstain from further action
in Willson’s suit. The district court addressed Colorado River abstention. It noted

3

Case: 16-13750

Date Filed: 04/10/2017

Page: 4 of 9

the pending Florida state case involved the same parties and found Willson had
asked both the Florida court and the federal court to decide whether Bank of
America violated RESPA by seeking a foreclosure judgment. Thus, the district
court concluded the two cases involved substantially the same issues.
The district court then analyzed the Colorado River factors. The court
found: (1) the Florida court had jurisdiction over the foreclosure property
(favoring abstention); (2) the federal forum was convenient (neutral); (3) the
potential for piecemeal litigation was not excessive (not favoring abstention); (4)
the Florida case was already on appeal after trial but this case has not yet
proceeded to trial (favoring abstention); (5) the claims in front of the district court
were based on federal law (not favoring abstention); (6) both courts were adequate
to protect Willson’s rights (neutral); (7) it was not clear that Willson filed the
federal action solely in reaction to his failure in state court (neutral); and (8)
RESPA’s concurrent jurisdiction indicated a policy favoring abstention (favoring
abstention). Based on these findings, the district court concluded abstention was
warranted and stayed Willson’s suit.
II.
“We review a district court’s order abstaining from the exercise of
jurisdiction on Colorado River grounds for an abuse of discretion.” Ambrosia Coal
& Const. Co. v. Pages Morales, 368 F.3d 1320, 1332 (11th Cir. 2004). “When

4

Case: 16-13750

Date Filed: 04/10/2017

Page: 5 of 9

employing an abuse of discretion standard, we must affirm unless we at least
determine that the district court has made a clear error of judgment, or has applied
an incorrect legal standard.” Moorer v. Demopolis Waterworks & Sewer Bd., 374
F.3d 994, 996–97 (11th Cir. 2004) (per curiam) (quotation omitted).
“Generally, as between state and federal courts, the rule is that the pendency
of an action in the state court is no bar to proceedings concerning the same matter
in the Federal court having jurisdiction.” Colorado River, 424 U.S. at 817, 96 S.
Ct. at 1246 (quotation omitted and alteration adopted). The “obligation of the
federal courts to exercise the jurisdiction given them” is “virtually unflagging.” Id.
Thus, “Colorado River abstention is particularly rare.” Jackson-Platts v. Gen.
Elec. Capital Corp., 727 F.3d 1127, 1140 (11th Cir. 2013).
“The principles of [the Colorado River] doctrine rest on considerations of
wise judicial administration, giving regard to conservation of judicial resources and
comprehensive disposition of litigation.” Moorer, 374 F.3d at 997 (quotation
omitted and alteration adopted). Colorado River abstention applies only “when
federal and state proceedings involve substantially the same parties and
substantially the same issues.” Ambrosia Coal, 368 F.3d at 1330. If this threshold
condition is met, then eight factors are weighed to analyze the permissibility of
abstention:
(1) whether one of the courts has assumed jurisdiction over property,
(2) the inconvenience of the federal forum, (3) the potential for
5

Case: 16-13750

Date Filed: 04/10/2017

Page: 6 of 9

piecemeal litigation, (4) the order in which the fora obtained
jurisdiction, (5) whether state or federal law will be applied, [] (6) the
adequacy of the state court to protect the parties’ rights. . . . [(7)] the
vexatious or reactive nature of either the federal or the state
litigation . . . . [and (8)] whether the concurrent cases involve a federal
statute that evinces a policy favoring abstention.
Id. at 1331 (quotation omitted). However, “the decision whether to dismiss a
federal action because of parallel state-court litigation does not rest on a
mechanical checklist, but on a careful balancing of the important factors as they
apply in a given case, with the balance heavily weighted in favor of the exercise of
jurisdiction.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,
16, 103 S. Ct. 927, 937 (1983). “The weight to be given to any one factor may
vary greatly from case to case, depending on the particular setting of the case.” Id.
“By considering and balancing the [] factors enumerated by the Supreme Court, a
district court will be able to identify when the circumstances are exceptional.”
Noonan S., Inc. v. Cty. of Volusia, 841 F.2d 380, 382 (11th Cir. 1988).
A.
Willson argues the two cases are not substantially similar because he seeks
different relief. But the district court found the cases are substantially similar
because the issues are the same. The court said Willson “seeks a determination [in
both cases] that [Bank of America] improperly moved for foreclosure judgment in
violation of RESPA.” Specifically, the district court observed that a determination

6

Case: 16-13750

Date Filed: 04/10/2017

Page: 7 of 9

that the foreclosure judgment was made in error is necessary for Willson to
succeed in the federal suit.
“A district court will abuse its discretion if it makes an error of law or makes
a clearly erroneous factual finding.” Jackson-Platts, 727 F.3d at 1133. The district
court did not abuse its discretion in finding that Willson’s state and federal cases
involved substantially the same issues, because his federal claims will require a
determination of whether the Florida court’s foreclosure judgment was correct.
This finding was not clearly erroneous and was based on a correct application of
law.
B.
Willson also argues the Colorado River factors do not favor abstention to the
extent required to overcome the heavy presumption that federal courts exercise the
jurisdiction afforded to them. The district court noted the presumption in favor of
federal court jurisdiction, but after analyzing the proper factors, found “abstention
is warranted under these circumstances.” Thus, the district court did not apply an
incorrect legal standard. Willson must therefore show the district court made a
clear error of judgment in balancing the Colorado River factors. See Moorer, 374
F.3d at 996–97.
The district court found three factors favored abstention: factor one, that the
Florida court had jurisdiction over Willson’s property; factor four, that the Florida

7

Case: 16-13750

Date Filed: 04/10/2017

Page: 8 of 9

court was post-trial while the federal suit was not; and factor eight, that RESPA’s
grant of concurrent jurisdiction indicated a policy in favor of abstention. The first
factor favors abstention because the Florida court already had jurisdiction over
Willson’s property and the federal court necessarily would decide whether the
foreclosure judgment was correct. See Forehand v. First Ala. Bank of Dothan, 727
F.2d 1033, 1035 (11th Cir. 1984) (the first factor applies where both the federal
and state courts are “determining rights in property over which one court has first
taken jurisdiction”). The fourth factor also favors abstention because the district
court properly looked to the relative progress of the two suits and found the Florida
court had progressed beyond trial. See Moses H. Cone, 460 U.S. at 21–22, 103 S.
Ct. at 940 (“[P]riority should not be measured exclusively by which complaint was
filed first, but rather in terms of how much progress has been made in the two
actions.”). And although Willson argues the RESPA issue was not squarely before
the Florida court at the foreclosure trial, the district court correctly found the
RESPA claim was premised on Bank of America proceeding with the foreclosure
trial despite Willson’s pending loan-modification application.
We note that the district court did err in its finding on the eighth factor that
RESPA’s concurrent jurisdiction “indicates a policy in favor of abstention.”
Colorado River requires more. Although it is true that the statute at issue in
Colorado River granted concurrent state and federal jurisdiction, 424 U.S. at 809,

8

Case: 16-13750

Date Filed: 04/10/2017

Page: 9 of 9

96 S. Ct. at 1242, it was “[t]he clear federal policy . . . [for] the avoidance of
piecemeal adjudication of water rights in a river system” that evinced a policy
favoring abstention. Id. at 819, 96 S. Ct. at 1247. Even recognizing this error, it
does not reach the level of a clear error of judgment or affect the district court’s
finding that the exceptional circumstances of the other two factors warranted
abstention. See Jackson-Platts, 727 F.3d at 1133. As a result, we affirm.
AFFIRMED.

9