Cowan v. MTGLQ Investors, L.P. et al
Filing
129
OPINION AND ORDER granting 99 Motion to dismiss; granting 100 Motion to dismiss; granting 101 Motion to dismiss or to strike; granting 103 Motion to dismiss; granting 104 Motion to dismiss; granting 105 Motion to dismiss; granting 113 M otion to quash; granting 114 Motion to dismiss; granting 121 Motion to dismiss. All other motions are dismissed as moot. The 97 First Amended Complaint is dismissed without prejudice with leave to amend. Plaintiff shall have one final chance to file a Second Amended Complaint within 21 days of this Opinion and Order. Signed by Judge John E. Steele on 6/17/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PATRICIA DAVIDSON COWAN,
Plaintiff,
vs.
Case No.
MTGLQ INVESTORS, L.P. and their
officers and directors, successors
and/or assigns; THE LAW OFFICES OF
SMITH, HIATT & DIAZ, P.A. and their
officers and directors, successors
and/or assigns; ROBERT A. SMITH;
VIRGINIA R. HIATT; DIANA B. MATSON;
WELLS FARGO BANK MINNESOTA, N.A. as
Trustee under that certain Pooling
and Servicing Agreement dated as of
9/1/97, for Southern Pacific Secured
Assets Corp., Mortgage Loan AssetBacked Pass-Through
Certificates
1997-3 and
their officers and
directors, successors and/or assigns
formerly known as Norwest Bank
Minnesota, N.A.; THE LAW OFFICES OF
CODILIS & STAWIARSKI, P.A. and their
officers and directors, successors
and/or assigns; ERNEST J. CODILIS
individually; LEO C. STAWIARSKI
individually; THE LAW OFFICES OF
SCOTT WEINSTEIN of Weinstein, Bavly
& Moon, and their officers and
directors,
successors
and/or
assigns; MORCAP, INC., ISAOA and
their
officers
and
directors,
successors and/or assigns; ADVANTA
MORTGAGE CORP.,
USA and
their
officers and directors, successors
and/or assigns; FIDELITY & DEPOSIT
INSURANCE COMPANY and their officers
and directors, successors and/or
assigns; CHASE MANHATTAN MORTGAGE
CORPORATION and their officers and
directors,
successors
and/or
assigns; EMPIRE INDEMNITY INSURANCE
COMPANY and their officers and
directors,
successors
and/or
2:09-cv-472-FtM-29SPC
assigns;
ZC
STERLING
INSURANCE
AGENCY, INC. and their officers and
directors,
successors
and/or
assigns;
MICHAEL
C.
SEMINARIO
Producing
Agent;
GMAC
MORTGAGE
CORPORATION and their officers and
directors,
successors
and/or
assigns;
FIRST
MORTGAGE
LOAN
SERVICING and their officers and
directors,
successors
and/or
assigns; BALBOA INSURANCE COMPANY
and their officers and directors,
successors
and/or
assigns;
UNDERWRITERS AT LLOYD'S, LONDON
through coverholder, WNC Insurance
Services, Inc., and their officers
and directors, successors and/or
assigns; OCWEN LOAN SERVICING, LLC
and their officers and directors,
s u c c e s sor s
a n d/ o r
assigns
(collectively referred to as OCWEN);
SCOTT
WEINSTEIN
attorney
with
Weinstein, Bavly & Moon Professional
A s s o c i ati o n ;
EC H E V ARRIA
&
ASSOCIATES, P.A. and their officers
and directors, successors and/or
assigns; STEPHEN D. HURM Attorney at
Law; MARK A. BRODERICK Attorney at
Law; ERIN COLLINS CULLARO Attorney
at Law; SEAN-KELLY XENAKIS Attorney
at Law; ELIZABETH T. FRAU Attorney
at Law; SCOTT D. STAMATAKIS Attorney
at Law; AMERICAN SECURITY INSURANCE
COMPANY and their officers and
directors,
successors
and/or
assigns; HOME SERVICING, LLC and
their
officers
and
directors,
successors and/or assigns; ELIZABETH
R. WELLBORN, P.A.,
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court on various motions to
dismiss plaintiff’s First Amended Complaint (Docs. ## 99; 100; 101;
-2-
103; 104; 105; 114 and 121); a Motion to Quash and Incorporated
Memorandum of Law of Defendant ZC Sterling Insurance Agency, Inc.
(Doc. # 113); as well as the Court’s review of the First Amended
Complaint (Complaint) (Doc. #97) filed on October 5, 2010.
I.
The Court will first address ZC Sterling Insurance Agency’s
(ZC Sterling) Motion to Quash.
(Doc. #113.)
ZC Sterling asserts
that plaintiff did not properly serve it pursuant to the Florida
Civil Practice Rules nor did she serve it in a timely manner.
In
her Response, Plaintiff does not contend that ZC Sterling has been
properly served, nor has she shown good cause for the failure to
serve ZC Sterling.
(Doc. #116, p. 3.)
Thus, the Court will
dismiss without prejudice any claim against ZC Sterling.
See Fed.
R. Civ. P. 4.
II.
The
Court
Complaint.
now
turns
to
the specific
allegations
of
the
This Complaint appears to concern two foreclosure
actions on plaintiff Patricia Davidson Cowan’s (plaintiff or Cowan)
home. The Court deciphers the following facts from the Complaint:
In or about 2000, Defendant Wells Fargo Bank Minnesota (Wells
Fargo) filed a foreclosure action against plaintiff in the Circuit
Court of the Twentieth Judicial Circuit of Florida.
The 2000
foreclosure action was dismissed with prejudice and plaintiff’s
mortgage was reinstated as of the date the foreclosure action was
-3-
filed.
Plaintiff’s mortgage was then assigned several times to
different
entities,
some
of
whom
are
also
defendants,
and
eventually was assigned to Defendant MTGLQ Investors, LP (MTGLQ).
Plaintiff asserts that Wells Fargo, and the subsequent assignees,
committed various types of fraud by charging plaintiff for flood
and hazard insurance, when she already carried flood and hazard
insurance through a different carrier.
(Doc. #97, p. 48.)
Then,
on or about October 27, 2005, Defendant MTGLQ filed a second
foreclosure complaint.
According to plaintiff, on or about April
23, 2007, the second foreclosure complaint was dismissed without
prejudice and MTGLQ was granted leave to amend.
(Id. at p. 40.)
In the eighteen-count Complaint, plaintiff repeatedly alleges
that the second foreclosure action violated “collateral estoppel”
which the plaintiff argues constitutes double jeopardy in violation
of the Fifth Amendment; that it was a malicious prosecution; that
Wells Fargo along with the other mortgage servicing companies were
an
“enterprise”
extortionate
constituting
credit
a
transactions,
conspiracy
that
embezzlement,
engaged
and
in
financial
institution fraud which involves the collection of “unlawful debt”,
“fraudulent litigation threats” in violation of civil Racketeer
Influenced and Corrupt Organizations (RICO) laws; insurance fraud;
and malpractice.
(Doc. #97, pp. 86-143.)
-4-
III.
Despite the Court’s September 14, 2010 Opinion and Order (Doc.
#95), which detailed the deficiencies of plaintiff’s original
complaint, the First Amended Complaint does not conform to the
pleading requirements of Federal Rule of Civil Procedure 8 and 10
by providing a short, plain statement regarding the relief sought.
In fact, the First Amended Complaint contains more paragraphs than
the original complaint, (Compare Doc. #1 with Doc. #97), yet still
fails to provide the information requested.
Plaintiff also makes allegations of fraud which do not meet
the heightened requirements of Federal Rule of Civil Procedure 9.
Federal Rule of Civil Procedure 9(b) requires fraud allegations to
be plead “with particularity.”
“In a complaint subject to Rule
9(b)’s particularity requirement, plaintiffs retain the dual burden
of
providing
sufficient
particularity
as
to
the
fraud
while
maintaining a sense of brevity and clarity in the drafting of the
claim, in accord with Rule 8.”
Wagner v. First Horizon Pharm.
Corp., 464 F.3d 1273, 1278 (11th Cir. 2006).
“Particularity means
that a plaintiff must plead facts as to time, place and substance
of the defendant’s alleged fraud, specifically the details of the
defendant[’s] allegedly fraudulent acts, when they occurred, and
who engaged in them.”
United States ex rel. Atkins v. McInteer,
470 F.3d 1350, 1357 (11th Cir. 2006)(quotation marks omitted);
Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir.
-5-
2001)(citation omitted); Garfield v. NDC Health Corp., 466 F.3d
1255, 1262 (11th Cir. 2006).
where, and how:
“This means the who, what, when[,]
the first paragraph of any newspaper story.”
Garfield, 466 F.3d at 1262 (citations omitted).
“Failure to
satisfy Rule 9(b) is a ground for dismissal of a complaint.”
Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir. 2005),
cert. denied, 549 U.S. 810 (2006).
Plaintiff is proceeding pro se and as such her pleadings are
held to a less stringent standard than pleadings drafted by an
attorney and will be liberally construed. Hughes v. Lott, 350 F.3d
1157, 1160 (11th Cir. 2003).
The Court finds that plaintiff shall
receive one final chance to amend her complaint to properly allege
her claims.
In so doing, plaintiff should adhere to the following
instructions and bear in mind the following rules of law.
amended
complaint
Complaint”.
should
be
entitled
the
“Second
The
Amended
In the Second Amended Complaint plaintiff must make
clear which counts apply to which defendants.
Additionally,
plaintiff must not reallege claims that the Court has held fail as
a matter of law.
RICO Claims
As stated previously, the statute of limitations for a RICO
claim is “four years from the date the plaintiff knew it was
injured.”
Pac. Harbor Capital, Inc. v. Barnett Bank, N.A., 252
F.3d 1246, 1251 (11th Cir. 2001)(citing Rotella v. Wood, 528 U.S.
-6-
549, 552-53 (2000)).
Additionally, plaintiff must allege the four
requirements of 18 U.S.C. § 1962(c)1, and the two requirements of
18 U.S.C. § 1964(c).2
Williams v. Mohawk Indus., 465 F.3d 1277,
1282-1291 (11th Cir. 2006).
In order for plaintiff’s Second
Amended Complaint to survive a motion to dismiss, she must allege
facts sufficient to support each of the statutory elements for at
least two of the pleaded predicate acts.
See Central Distribs. of
Beer, Inc. v. Conn, 5 F.3d 181, 183-84 (6th Cir. 1993).
Plaintiff alleges that the filing of the second foreclosure
action
constituted
“financial
institution
fraud”,
“fraudulent
mortgage foreclosure”, “fraudulent litigation threat”, a malicious
prosecution, and violated her rights under “collateral estoppel” as
embodied by “Double Jeopardy” pursuant to the Fifth Amendment of
the Constitution and Florida Statute § 910.11. As the Complaint is
currently pled, plaintiff cannot state a RICO claim predicated on
any of these causes of action.
Financial Institution, Mortgage Fraud, and Fifth Amendment Claims
Although the complaint has eighteen counts, many of them
complain of the same conduct and cite the same law.
Plaintiff’s
1
(1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity.
2
(1) the requisite injury in plaintiff’s business or property,
and (2) that such injury was “by reason of” the substantive RICO
violation.
-7-
financial institution fraud and mortgage fraud claims allege that
the assignments of her loan and the subsequent second foreclosure
action were both fraudulent.
However, plaintiff does not allege
precisely what was done fraudulently.
Plaintiff only alleges that
the mortgage assignment was “fictitious” and that the second
mortgage foreclosure was “(Bogus) perjured, falsified, fraudulent”.
(Doc. #97, ¶186.)
Further, plaintiff maintains in these counts
that the filing of the second foreclosure action was a violation of
her fifth amendment rights.
Plaintiff appears to be applying criminal law (see e.g., Doc.
#97,
pp.
38,
48,
77)
foreclosure action.
to
what
she
alleges
was
a
fraudulent
Plaintiff repeatedly states that collateral
estoppel is embodied in the Fifth Amendment constitutional guaranty
against double jeopardy.
(See e.g., p. 120.)
jeopardy does not apply to foreclosure actions.
However, double
See Fla. Stat.
§ 910.11; see also De La Teja v. United States, 321 F.3d 1357, 1364
(11th Cir. 2003)(citing Breed v. Jones, 421 U.S. 519, 528-30
(1975)).
Thus, any double jeopardy or Fifth Amendment claims fail
as a matter of law, and will be dismissed with prejudice.
Fraudulent Litigation Threat Claims
Plaintiff’s “fraudulent litigation threat” claims appear to be
a repackaging of her previous Fair Debt Collection Practices Act
(FDCPA) and Florida’s Consumer Collections Practices Act (FCCPA)
claims
based
on
the
two
foreclosure
-8-
actions.
However,
as
previously stated, (see Doc. #95, p. 10), foreclosing on a home is
not debt collection pursuant to the FDCPA and thus, one cannot
state a claim under the FDCPA or FCCPA based on a foreclosure
action.
460-61
Warren v. Countrywide Home Loans, Inc., 342 F. App’x 458,
(11th
Cir.
2009);
see
also
Trent
v.
Mortgage
Elec.
Registration Sys., Inc., 618 F. Supp. 2d 1356, 1360-61 (holding
that the rationale espoused under FDCPA precedent should apply with
equal force to FCCPA cases).
Malicious Prosecution Claims
In
its
September
14, 2010
Opinion
and Order,
the
explained the elements of a malicious prosecution claim.
#95, p. 9.)
Court
(Doc.
Plaintiff has failed to state a cause of action for
malicious prosecution as she has failed to allege several of its
elements, including that there was an absence of probable cause for
the original proceeding, and that there was malice on the part of
the defendants.
See Cohen v. Corwin, 980 So. 2d 1153, 1155 (Fla.
4th DCA 2008); Durkin v. Davis, 814 So. 2d 1246, 1248 (Fla. 2d DCA
2002).
In fact, if plaintiff is basing her malicious prosecution
claim on the second foreclosure action, which according to her
complaint was dismissed without prejudice, her claim would fail as
a matter of law because a dismissal without prejudice does not
support a finding that proceeding terminated in favor of Cowan.
See e.g., Hughes, 350 F.3d at 1161 (“A dismissal without prejudice
-9-
is not an adjudication on the merits . . .”); McRae v. Rollins
College, No. 6:05cv1767, 2006 WL 1320153, at *3 (M.D. Fla. May 15,
2006)(“A dismissal without prejudice does not support a finding
that a defendant was a prevailing party.”).
Accordingly, it is now
ORDERED:
1.
Motion to Quash And Incorporated Memorandum of Law of
Defendant ZC Sterling Insurance Agency (Doc. #113) is GRANTED.
2.
Defendants’ Motions to Dismiss (Docs. ## 99; 100; 101;
103; 104; 105; 114 and 121) are GRANTED as set forth above.
3.
4.
All other pending motions are dismissed as moot.
The First Amended Complaint (Doc. #97) is dismissed
without prejudice and with leave to amend.
Plaintiff shall have
one final chance to file a “Second Amended Complaint” within
TWENTY-ONE (21) DAYS in compliance with this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this
June, 2011.
Copies:
Patricia Davidson Cowan
Counsel of record
-10-
17th
day of
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