Cowan v. MTGLQ Investors, L.P. et al

Filing 198

OPINION AND ORDER granting granting 151 and 181 Motions to strike and striking 149 153 154 155 156 157 158 169 170 171 172 173 . Further granting 137 139 142 143 144 145 146 Motions to dismiss. The Second Amended Complaint 132 is DISMISSED WITH PREJUDICE. The Clerk is directed to enter judgment accordingly, terminate any previously scheduled deadlines and pending motions and close the file. Signed by Judge John E. Steele on 3/28/2012. (SVC)

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
assigns;
ZC
STERLING
INSURANCE

2:09-cv-472-FtM-29SPC

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 Second Amended Complaint (Docs. ##137, 139,
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142-146); Motions to Strike Responses in Opposition (Docs. ##151,
181); as well as the Court’s review of the Second Amended Complaint
(Doc. #132) filed on July 7, 2011.
(Docs. ##153-158; 169-173.)
Amended

Complaint

with

Plaintiff filed responses.

Defendants seek to dismiss the Second

prejudice.

Defendants

Echevarria

&

Associates, P.A., Elizabeth Frau and Erin C. Cullaro (collectively,
Echevarria Defendants) also seek to strike plaintiff’s responses in
opposition to the pending motions to dismiss and the “Plaintiffs’
[sic] Sworn Affidavit Proferring [sic] Evidence to be Attached to
Second Amended Verified Complaint and any and all Future Complaints
and/or Motions and Responses” (Affidavit)(Doc. #149).

For the

reasons discussed below, the various motions are granted and this
matter is dismissed with prejudice.
I.
The Court will first address the procedural posture of this
case.

Plaintiff, Patricia (Davidson) Cowan (Cowan or plaintiff)

initially filed her complaint on July 22, 2009.

(Doc. #1.) The

Complaint was 127 pages, 379 paragraphs, and 26 counts.

Following

several motions to dismiss and a motion to quash, on September 14,
2010, the Court dismissed the Complaint without prejudice for
failure to meet the pleading requirements of Fed. R. Civ. P. 8 and
10.

(Doc. #95.)

The Court, noting Cowan’s pro se status, took the

opportunity to explain in detail plaintiff’s responsibilities and
obligations

regarding

filing

a

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proper

complaint.

The

Court

instructed Cowan to file a “short and plain statement” regarding
her claims and provided the plaintiff with the applicable rules of
law to assist her in filing her first amended complaint.
Thereafter, Cowan filed her First Amended Complaint on October
5, 2010.

(Doc. #97.)

The First Amended Complaint contained more

paragraphs than the original complaint (Compare Doc. #1 with Doc.
#97) yet failed to provide the information requested by the Court.
As

a

result,

the

Court

dismissed

plaintiff’s

First

Amended

Complaint without prejudice for failure to meet the pleading
requirements of Rules 8 and 10.
admonished

plaintiff

to

provide

(Doc. #129.)
a

short

and

Again, the Court
plain

statement

regarding the relief sought. The Court also noted that plaintiff’s
fraud claims failed to meet the heightened pleading standards of
Rule 9.

For a second time, the Court explained the applicable law

and provided plaintiff with specific instructions for filing her
second amended complaint.

The Court further instructed that this

would be Cowan’s “final chance to amend her complaint to properly
allege her claims.”

(Doc. #129, p. 6)(emphasis in original).

Plaintiff filed her Second Amended Complaint on July 7, 2011.
(Doc. #132.)

The Second Amended Complaint is 124 pages, 426

paragraphs, and contains thirty-six (36) counts.1

On August 9,

2011, plaintiff filed her Affidavit.

The document

1

(Doc. #149.)

The Second Amended Complaint states that there are thirtyfive counts. However, when numbering her counts, Cowan included
“Count #7" twice. (See Doc. #132, pp. 36, 39.)
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indicates that it contains evidence which should be considered as
an attachment to her Second Amended Complaint and any future
pleadings before the Court.

The attachment is ninety-six (96)

pages and 204 paragraphs.
Finally, on November 11, 2011, Cowan filed a “Plaintiff’s
Edited Verified Complaint.”

(Doc. #159.)

On November 30, 2011,

the Court struck the document noting that its June 17, 2011,
Opinion and Order clearly stated that plaintiff would have one
final chance to file her Second Amended Complaint.

(Doc. #161.)

The Court further noted that the Edited Verified Complaint added
new

defendants

and

charges

and

contained

164

counts,

1,665

paragraphs, and was 452 pages in length without the Certificate of
Service. Finally, the Court noted that Cowan did not seek leave to
amend the complaint nor did the Court provide leave.

(Id.)

II.
The Court now turns to the specific allegations of the Second
Amended Complaint which appears to concern two foreclosure actions
on Cowan’s home.

Although the Second Amended Complaint is largely

incomprehensible, the Court discerns the following facts:

In or

about 2000, defendant Wells Fargo Bank Minnesota (Wells Fargo)
filed an improper foreclosure action against plaintiff in the
Circuit

Court

of

the

Twentieth

Judicial

Circuit

of

Florida.

Plaintiff contends that this action was fraudulent because the
alleged default was caused by the misuse of his mortgage payments

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by defendants Well Fargo, Advanta Mortgage, Fidelity & Deposit
Insurance, and Codilis and Stawiarski, P.A.

Plaintiff filed a

counter-claim in that action. On January 13, 2000, the foreclosure
action was dismissed with prejudice and plaintiff’s mortgage was
reinstated as of the date the foreclosure action was filed.
Thereafter, the mortgage was allegedly fraudulently assigned
several

times

defendants,

to

and

different
eventually

Investors, L.P.

entities,
was

including

assigned

Plaintiff contends that

to

some

of

defendant

the

MTGLQ

Wells Fargo and the

various assignees committed various types of fraud by improperly
charging her for flood and hazard insurance, although she already
carried flood and hazard insurance through a different carrier. In
addition, the various defendants improperly charged her for late
fees, and failed to apply her “suspended mortgage payments” back to
her mortgage.

The Defendants also improperly changed the mortgage

payment schedule.

(See, e.g. Doc. #132 ¶166.)

Then, on or about

October 27, 2007, a second foreclosure complaint by was filed
against Cowan by MTGLQ.

On or about April 23, 2007, the second

foreclosure complaint was dismissed without prejudice and MTGLQ was
granted leave to amend.
In
contends

the

thirty-six

that

the

count

various

Second

Amended

defendants

were

Complaint,
engaged

Cowan
in

an

“enterprise” that engaged in extortionate credit transactions,
embezzlement, mail fraud, and financial institution fraud and

-6-

attempted

to

collect

“unlawful

debt”

and

fraudulently

made

litigation threats in violation of civil Racketeer Influenced and
Corrupt Organizations (RICO) laws. Further, the various defendants
committed insurance fraud, malpractice and maliciously prosecuted
Cowan.

Plaintiff further alleges that the second foreclosure

action constituted double jeopardy in violation of the Fifth
Amendment to the United States Constitution.
III.
A.

Motions to Strike
The Echevarria defendants seek to strike Cowan’s Affidavit and

her various responses to the pending motions to dismiss.

The

Echevarria defendants seek to strike the plaintiff’s affidavit as
an impermissible attempt to amend the complaint.

They seek to

strike the various responses pursuant to Fed. R. Civ. P. 12(f) as
redundant,

immaterial,

and

impertinent

to

the

proceedings.

Further, the Echevarria defendants contend that the responses are
not a legal memoranda and violate the local rules of the Middle
District of Florida. (See generally, Docs. ##151, 181.)
1.

Plaintiff’s Second Sworn Affidavit

The Second Sworn Affidavit (Doc. #149), read liberally, seeks
to

amend

the

Complaint

with

an

additional

96

paragraphs of “proof” supporting the complaint.

pages

and

204

However, the

second sworn affidavit contains no supporting documentation and
instead consists solely of additional allegations against the

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various defendants. Nowhere within the lengthy document does Cowan
seek leave to amend the complaint nor does she provide any basis
for the court to find good cause to do so.

This Court has already

provided Cowan with ample opportunity to amend her complaint and is
not inclined to do so again. Accordingly, the document is stricken
and will not be considered.

The Second Amended Complaint (Doc.

#132) remains the current and operative pleading.
2.

Responses to Pending Motions to Dismiss

Plaintiff has filed numerous lengthy responses to the various
motions to dismiss pending before the court.2

2

Each one of the

In response to the Echevarria Defendants’ Motion to Dismiss
(Doc. #137) Cowan filed two separate one-hundred (100) page
responses. (Docs. ##155, 173.) In response to defendant’s Ocwen
Loan Servicing, LLC, MTGLQ Investors, L.P., and Elizabeth Wellborn,
Attorney, P.A.’s motion to dimiss (Doc. #142) Cowan filed a ninetyeight (98) page response (Doc. #156) in addition to a ninety-nine
(99) page response. (Doc. #170.) Cowan filed a seventy-eight (78)
page response (Doc. #169) to defendant, Home Servicing, LLC’s
Motion to Dismiss (Doc. #143).
In response to Chase Manhattan
Mortgage Corporation, and its Officers and Directors, Successors
and/or Assign’s Motion to Dismiss (Doc. #145), Cowan filed a sixtyseven (67) page response (Doc. #154) in addition to two sixty-six
(66) page responses (Docs. ##157, 172). In response to Wells Fargo
Bank Minnesota, N.A., as Trustee, and its Officers and Directors,
Successors and/or Assigns’ Motion to Dismiss (Doc. #146) Cowan
filed a sixty-seven (67) page response (Doc. #153) in addition to
a one-hundred (100) page response (Doc. #171). In response to the
Echevarria Defendants’ Motion to Strike Responses (Doc. #151),
plaintiff filed a 101 page response (Doc. #158.) Finally, although
the Court dismissed the plaintiff’s First Amended Complaint on June
17, 2011, (Doc. #129), on December 16, 2011, plaintiff filed a
sixty-three (63) page response (Doc. #167) and a fifty-two (52)
page response (Doc. #168) to previous motions seeking to dismiss
the plaintiff’s First Amended Complaint (See Docs. ## 114, 105,
respectively). Plaintiff did not file any responses to Docs. ##
139, 144, or 181.
-8-

responses fails to comply with the local rules of the Court.
Specifically, Local Rule 3.01(b) provides:
Each party opposing a motion or application shall file
within fourteen (14) days after service of the motion or
application a response that includes a memorandum of
legal authority in opposition to the request, all of
which the respondent shall include in a document not more
than twenty (20) pages.
Middle District of Florida Local Rule 3.01(b)(emphasis added).
Local Rule 3.01(c) provides that motions seeking leave to file a
response in excess of twenty (20) pages shall not exceed three (3)
pages.

All of Cowan’s responses greatly exceed this limit.

Cowan

makes no attempt in any of the eleven (11) relevant responses3 to
request leave to file excess pages.

Therefore, all of plaintiff’s

responses are deficient under the Local Rules of the Court.
Further, under Fed. R. Civ. P. 12(f), “the Court may order
stricken

from

any

pleading

any

insufficient

defense

or

any

redundant, immaterial, impertinent, or scandalous matter.” Motions
to strike are disfavored, and will be denied unless the allegations
have no possible relation to the controversy, may confuse the
issues, or may cause prejudice to one of the parties. Reyher v.
Trans World Airlines, Inc., 881 F.Supp. 574, 576 (M.D. Fla. 1995).
The Court notes that the various responses provided by Cowan
are repetitive of one another. Particularly in the instances where

3

The Court notes that documents 167 and 168 relate to motions
to dismiss the First Amended Complaint which has been dismissed by
the Court. Therefore, these responses are moot.
-9-

plaintiff filed multiple responses to the same motion (See for e.g.
Docs. ##156, 170 in response to Doc. #142 and Docs. #154, 157, 172
in response to Doc. #145) the responses are redundant, at best.
In fact, many of the pleadings are completely identical.
e.g. Doc. # 155 with Doc.# 157.)
alleged

quotations

from

(Compare

The responses largely consist of

various

correspondence

sent

by

the

defendants although the documents themselves are not attached to
the responses. They rely greatly on the Affidavit which, as stated
above, has been stricken by the Court and therefore are largely
moot.
either

The responses ARE nothing more than an attempt by Cowan to
repeat,

or

various defendants.

assert,

additional

allegations

against

the

In fact, the responses, read liberally, are

more of an attempt at amending the complaint than they are an
attempt to respond to the various motions to dismiss. Accordingly,
the Echevarria’s motions to strike are granted and the responses
are stricken pursuant to Rule 12(f) and as deficient under Local
Rule 3.01(b).
B.

Motions to Dismiss
Although the Court, on two separate occasions, detailed the

deficiencies

of

plaintiff’s

complaints

and

provided

detailed

instructions on how to cure the various deficiencies, the Second
Amended Complaint does not conform to the pleading requirements of
Federal Rules of Civil Procedure 8 and 10 by providing a short,
plain statement regarding the relief sought.

-10-

Although complaints

are construed more liberally in pro se actions, Cowan is subject to
the same law and rules of court as a litigant represented by
counsel, including the Federal Rules of Civil Procedure. See Moon
v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).
document

contains

427

paragraphs

and

The 124-page

thirty-six

counts.

Plaintiff’s Second Amended Complaint is a quintessential “shotgun”
pleading

replete

conclusions.

with

factual

allegations

and

rambling

See Strategic Income Fund, L.L.C. v. Spear, Leeds &

Kellog Corp., 305 F.3d 1293, 1295-96 (11th Cir. 2002).
Amended

Complaint

frivolous.

legal

is

largely

incomprehensible,

The Second

and

palpably

It is nearly impossible for the Court to discern the

specific allegations of the Complaint and the allegations utterly
fail to put the defendants on notice as to the substance of the
claims

they

concerning

must

fraud

defend.
again

fail

Further,

plaintiff’s

to

the

meet

allegations

heightened

pleading

requirements of Federal Rule of Civil Procedure 9(b) which requires
fraud allegations to be pled “with particularity.”
The Court has gone through great lengths on more than one
occasion to outline Cowan’s responsibility to comply with the
Federal Rules and provided her with specific instructions on how to
comply with such rules.

Despite this Court’s efforts, plaintiff

has again filed an insufficient pleading.
Accordingly, it is now
ORDERED:

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1.

The Echevarria defendant’s Motions to Strike (Docs. ##

151, 181) are granted and Documents ## 149, 153-158, and 169-173
are stricken.
2.

The Defendants’ Motions to Dismiss (Docs. ## 137, 139,

142, 143, 144, 145, 146) are granted.
3.
WITH

The Second Amended Complaint (Doc. # 132) is DISMISSED

PREJUDICE.

accordingly,

The

terminate

Clerk
any

is

directed

previously

to

scheduled

enter

judgment

deadlines and

pending motions and close the file.
DONE AND ORDERED at Fort Myers, Florida, this
March, 2012.

Copies:
Counsel of record

-12-

28th

day of