Andrzej Madura, et al v. BAC Home Loans Servicing, L.P., et al

Filing

Opinion issued by court as to Appellants Anna Dolinska-Madura and Andrzej Madura. 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: 16-14870

Date Filed: 12/04/2017

Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-14870
Non-Argument Calendar
________________________
D.C. Docket No. 8:11-cv-02511-VMC-TBM

ANDRZEJ MADURA,
ANNA DOLINSKA-MADURA,
Plaintiffs-Counter Defendants
-Counter Claimants-Appellants,
versus
BAC HOME LOANS SERVICING, L.P.,
f.k.a. Countrywide Home Loan Servicing, LP,
BANK OF AMERICA, N.A.,
Defendants-Appellees.
COUNTRYWIDE HOME LOANS, INC., et al.
Counter Defendants,
BANK OF AMERICA, N.A. et al.
Counter Claimants,
Third Party-Plaintiff,

Case: 16-14870

Date Filed: 12/04/2017

Page: 2 of 11

UNKNOWN TENANT 1, et al.,
Third Party-Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 4, 2017)
Before MARCUS, ROSENBAUM and FAY, Circuit Judges.
PER CURIAM:
Andrzej Madura and Anna Dolinska-Madura (“the Maduras”), pro se, appeal
the district court’s denial of their motion requesting that the court docket and
preserve original loan documents in their foreclosure proceeding. We affirm.
I. BACKGROUND
A. Underlying Facts
In July 2000, the Maduras obtained a residential home loan from Full
Spectrum Lending, Inc. (“Full Spectrum”). 1 Under the terms of the loan
agreement, the Maduras borrowed $87,750.00 at an adjustable interest rate of
14.375%, secured by their principal residence. Countrywide Home Loans, Inc.
(“Countrywide”) purchased the loan from Full Spectrum on July 31, 2000. In
March 2001, the Maduras contacted Countrywide and requested to repay their loan
1

Madura v. Countrywide Home Loans, Inc., 344 F. App’x 509, 511 (11th Cir. 2009).
2

Case: 16-14870

Date Filed: 12/04/2017

Page: 3 of 11

in full; Countrywide informed them that a prepayment penalty applied and sent
them a payoff demand statement that included a $5,036.84 prepayment penalty.
According to the Maduras, the loan documents they had signed did not
include a prepayment penalty. They contended Full Spectrum and Countrywide
had destroyed the original loan documents and had fabricated a new adjustable rate
note and a Truth in Lending Act (“TILA”) disclosure statement, which
impermissibly included a prepayment penalty. They also asserted Full Spectrum
and Countrywide had forged their signatures on the fraudulent documents.
The Maduras hired a forensic document examiner, who found that their
signatures on the TILA disclosure statement and Mr. Madura’s initials on the
adjustable rate note had been forged. They sent the forensic examiner’s report to
Countrywide, as well as a letter demanding an immediate rescission of the loan
agreement. Countrywide refused to rescind the loan agreement and claimed that
Mr. Madura’s initials on the promissory note had not been forged. Nevertheless,
Countrywide agreed to waive the prepayment penalty.
B. Underlying Federal Proceedings
After litigating several other actions in state and federal court, in November
2011, the Maduras filed a pro se amended federal complaint in district court
against Bank of America, N.A. (“BOA”) and BAC Home Loans Servicing, L.P.

3

Case: 16-14870

Date Filed: 12/04/2017

Page: 4 of 11

(“BAC Home Loans”). 2 The Maduras alleged that the defendants had violated
several provisions of the Real Estate Settlement Procedures Act (“RESPA”).
BOA, on its own and as successor by merger to BAC Home Loans, answered the
complaint and filed a counterclaim for foreclosure against the Maduras. While
conducting discovery, the district court ordered BOA to allow the Maduras to
inspect the original, signed loan documents, which they did, on August 15, 2012.
Mr. Madura also inspected the loan documents during his deposition.
After discovery, BOA moved for summary judgment on the Maduras’
RESPA claims and on its counterclaim for foreclosure. Subsequently, on July 12,
2013, the district court ordered BOA to submit the original, signed loan documents
to chambers. On July 16, 2013, the court entered an order stating that it had
directed BOA to surrender the original note in this action and that BOA had
complied by tendering the note to chambers.
The district court granted BOA’s motion for summary judgment because the
Maduras had not established that RESPA applied or that BOA had violated any
provision of the statute. The district court also concluded that the Maduras had
never rescinded the loan; on the contrary, the Maduras had ratified the loan by
continuing to make payments on it. The court also determined that BOA had

2

According to the amended complaint, Countrywide Home Loans Servicing LP changed its
name to BAC Home Loans in April 2009. Thus, BAC Home Loans began servicing the
Maduras’ loan on that date.
4

Case: 16-14870

Date Filed: 12/04/2017

Page: 5 of 11

properly authenticated the note and that all of the Maduras’ 71 affirmative
defenses, including that the note or other loan documents contained forged
signatures, were either barred by res judicata or meritless. The court therefore
granted BOA’s motion for summary judgment on its foreclosure counterclaim.
The Maduras moved for reconsideration and argued that the district court
had engaged in impermissible ex parte communications when it acquired the
purported original loan documents from BOA. The district court denied the
motion. The court entered a final decree of foreclosure on August 13, 2013.
Thereafter, the Maduras filed an emergency motion to inspect the alleged original
loan documents tendered by BOA to the court. Before the district court ruled on
the motion, the Maduras filed a notice of appeal from the final judgment of
foreclosure. The district court then denied the emergency motion, finding that the
filing of the notice of appeal had divested it of jurisdiction.
In 2014, this court affirmed the district court’s judgment. Madura v. BAC
Home Loans Servicing, LP, 593 F. App’x 834 (11th Cir. 2014). This court
concluded the district court did not engage in ex parte communications by
receiving the original note from BOA, affirmed the district court’s rejection of the
rescission and fraud-based arguments, and concluded that the Maduras failed to
present any admissible evidence supporting their contention that the note was
forged. Id. at 843-46.
5

Case: 16-14870

Date Filed: 12/04/2017

Page: 6 of 11

C. Motion to Docket and Preserve Original Loan Documents
After the case was closed, the Maduras filed numerous motions and appeals,
all of which were unsuccessful. The Maduras then filed a motion asking the court
to docket 80 pages of BOA’s foreclosure documents. They sought to preserve this
evidence for further investigation and litigation. The Maduras argued that BOA,
despite multiple requests, refused to disclose to them these documents that had
been sent to the court ex parte, and the court concealed these documents for the
next six months, and failed to docket them.
The district court denied the Maduras’ motion and noted that, in connection
with the foreclosure proceedings, it had directed BOA to submit original
documents for the court’s inspection. The Maduras and their expert had the
opportunity to inspect these documents and had filed a certified copy of these
documents on the record. The court noted, at this point, the Maduras sought an
order barring BOA from retrieving the documents, referencing the threat of future
litigation. The court found, however, that the Maduras always threatened
litigation, and BOA could not always be considered in reasonable anticipation of
litigation based on the never-ending threats. The court further found the requests
regarding the original documents were redundant and unnecessary, as they had the
chance to evaluate the documents and a certified copy had been entered on the
docket. The court concluded that the motion was frivolous and denied it. The
6

Case: 16-14870

Date Filed: 12/04/2017

Page: 7 of 11

Maduras filed a motion for reconsideration, which the court denied. The Maduras
appealed.
II. DISCUSSION
A. Subject Matter Jurisdiction
First, the Maduras argue that the district court lacked subject matter
jurisdiction to proceed with the foreclosure proceedings and make a rescission
determination that this court subsequently affirmed because the loan rescission
issue was not framed by the pleadings. We review questions regarding subject
matter jurisdiction de novo. See Stovall v. City of Cocoa, 117 F.3d 1238, 1240
(11th Cir. 1997). Appellate courts have a responsibility to examine the subject
matter jurisdiction of the district courts in actions that they review. Williams v.
Best Buy Co., 269 F.3d 1316, 1318 (11th Cir. 2001). In a given case, a federal
district court must have either: (1) federal question jurisdiction pursuant to 28
U.S.C. § 1331, or (2) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Baltin
v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997). Federal question
jurisdiction exists in “civil actions arising under the Constitution, laws, or treaties
of the United States.” 28 U.S.C. § 1331. The absence of a valid cause of action
does not implicate subject-matter jurisdiction, i.e., the courts’ statutory or
constitutional power to adjudicate the case. Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 89, 118 S. Ct. 1003, 1010 (1998).
7

Case: 16-14870

Date Filed: 12/04/2017

Page: 8 of 11

The RESPA prescribes certain actions to be followed by entities or persons
responsible for servicing federally related mortgage loans. See 12 U.S.C. § 2605.
It provides that “[e]ach servicer of any federally related mortgage loan shall notify
the borrower in writing of any assignment, sale, or transfer of the servicing of the
loan to any other person.” Id. § 2605(b)(1). Subsection (c) similarly provides that
“[e]ach transferee servicer to whom the servicing of any federally related mortgage
loan is assigned, sold, or transferred shall notify the borrower of any such
assignment, sale, or transfer.” Id. § 2605(c)(1). The RESPA also provides a loan
servicer, upon receipt of a Qualified Written Request (“QWR”) for information
related to the servicing of a loan, must provide a written response acknowledging
receipt of the QWR within 5 business days. Id. § 2605(e)(1)(A). If a loan servicer
fails to comply with any of these provisions, an individual borrower may recover
any actual damages caused by the failure and up to $1,000 in statutory damages if
there is a pattern or practice of noncompliance with the RESPA. Id. § 2605(f).
Although this court does have a responsibility to examine whether the
district court had subject matter jurisdiction over what is being reviewed on appeal,
the rescission issue is not relevant to what is at issue in this appeal, as this is an
appeal from the denial of a motion to docket and preserve original loan documents.
See Williams, 269 F.3d at 1318. Also, the district court had federal question
jurisdiction in the underlying federal proceeding, as the Maduras raised claims
8

Case: 16-14870

Date Filed: 12/04/2017

Page: 9 of 11

under RESPA. Baltin, 128 F.3d at 1469; 28 U.S.C. § 1331; see also 12 U.S.C. §
2605(b), (c), and (e). Moreover, the Maduras’ argument about whether rescission
was raised in the pleadings is not a jurisdictional argument. See Steel Co., 523
U.S. at 89, 118 S. Ct. at 1010. Instead, it is an argument about the sufficiency of
the pleadings, which does not concern whether the district court or this court have
subject matter jurisdiction to adjudicate the case.
Despite the Maduras’ argument that its prior loan servicers failed to file an
action under TILA, 15 U.S.C. § 1635, nothing requires that the prior servicers
bring an action in order to provide the district court subject matter jurisdiction over
the rescission issue. See 15 U.S.C. § 1635(a)-(i). Additionally, it appears the
Maduras are attempting to disguise their rescission arguments as jurisdictional
challenges, as they continue to argue that their mortgage loan was rescinded in
2001; however, in the underlying proceeding and on appeal, the district court and
this court previously have determined that the Maduras’ loan was not rescinded.
See Madura, 593 F. App’x at 843-44.
B. Motion to Docket and Preserve Original Loan Documents
The Maduras also argue that the district court abused its discretion by
denying the motion requesting that the court docket and preserve original loan
documents in the foreclosure proceeding. We review the denial of post-judgment
motions under an abuse of discretion standard. Green v. Union Foundry Co., 281
9

Case: 16-14870

Date Filed: 12/04/2017

Page: 10 of 11

F.3d 1229, 1233 (11th Cir. 2002). A district court has inherent authority to
manage its own docket in order to achieve the orderly and expeditious disposition
of cases. Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556
F.3d 1232, 1240 (11th Cir. 2009). Under Florida law, a party who seeks to
foreclose on a mortgage must produce the original note. Deutsche Bank Nat’l Tr.
Co. v. Clarke, 87 So. 3d 58, 61 (Fla. 4th Dist. Ct. App. 2012). “Surrendering the
note is essential so that it cannot thereafter be negotiated.” Johnston v. Hudlett, 32
So. 3d 700, 704 (Fla. 4th Dist. Ct. App. 2010). Surrender removes the note from
the stream of commerce, preventing another from trying to enforce it against the
defendant a second time. Clarke, 87 So. 3d at 62.
The district court ordered BOA to allow the Maduras to inspect the original,
signed loan documents, which they did. Also, the record indicates that Mr. Madura
inspected the loan documents during his deposition. Then, the district court
directed BOA to submit the original, signed loan documents for the court’s
inspection. The district court entered an order stating that BOA had complied. See
id. at 61. Also, the Maduras filed a certified copy of the original loan documents
on the record. Moreover, we previously have determined that the district court did
not engage in ex parte communications by receiving the original note from BOA.
See Madura, 593 F. App’x at 846.

10

Case: 16-14870

Date Filed: 12/04/2017

Page: 11 of 11

As to the Maduras’ request the district court preserve the original loan
documents, neither party is able to remove the note from the court. See Clarke, 87
So. 3d at 62. The Maduras’ request that the loan documents remain in the court’s
files is unnecessary and the district court did not abuse its discretion in denying
this motion.
C. Sanctions
Finally, the parties argue that the opposing party should be sanctioned. We
have the inherent power to award sanctions. See Thomas v. Tenneco Packaging
Co., 293 F.3d 1306, 1320 (11th Cir. 2002). If we determine that an appeal is
frivolous, we may, after a separately filed motion and reasonable opportunity to
respond, award just damages and single or double costs to the appellee. Fed. R.
App. P. 38. A Rule 38 motion must be filed no later than the filing of the
appellee’s brief. 11th Cir. R. 38-1. Although the parties argued for sanctions in
their answer and reply briefs, they have not filed separate motions consistent with
the requirements of Rule 38 and 11th Circuit Rule 38-1. Therefore, we do not
award sanctions to either party.
AFFIRMED.

11