Farrell v. State of Florida Republicans et al

Filing 132

OPINION AND ORDER granting 83 Amended Motion to dismiss; denying as moot 84 Motion to dismiss; granting 85 Motion to dismiss; granting 103 Motion to dismiss. Plaintiff's 81 Amended Complaint is dismissed with prejudice as to Counts 2 and Count 9, and without prejudice as to Count 6. The Court declines to maintain supplemental jurisdiction over the remaining counts pursuant to 28 U.S.C. § 1367(c)(3), which are dismissed without prejudice to the extent not otherwise statutorily barred. The Clerk shall enter judgment accordingly, terminate all pending motions, and close the file. Signed by Judge John E. Steele on 8/21/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PATRICK LORNE FARRELL,
Plaintiff,
v.

Case No: 2:13-cv-140-FtM-29DNF

GMAC
MORTGAGE,
STATE
OF
FLORIDA, WELLS FARGO BANK
N.A., BANK OF AMERICA, OCWEN
LOAN SERVICING,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of defendants
Bank of America, N.A. and Countrywide Home Loans, Inc.’s Motion to
Dismiss (Doc. #83); Ocwen Loan Servicing, IMPAC Funding Corp.,
GMAC Mortgage, LLC and Wells Fargo Bank, N.A.’s Joint Motion to
Dismiss (Doc. #84) 1; Ocwen Loan Servicing, IMPAC Funding Corp.,
and Wells Fargo Bank, N.A.’s Amended Joint Motion to Dismiss (Doc.
#85); and defendant, the State of Florida’s, Corrected Motion to
Dismiss (Doc. #103).
Motion

is

a

Motion

Plaintiff filed a “Response to Defendants
for

Summary

Judgment

With

Attachment

of

Appointment” (Doc. #87) and “Notice of Filing of USDC Judge John

1

This motion was amended to clarify that GMAC Mortgage, LLC
did not join the motion because it is currently under bankruptcy
protection. (Doc. #85, n.1.) The first motion will be denied as
moot in light of the amended filing.

McConnell Order and Stipulation to Plaintiff $400,000 Claim in
GMAC Bankruptcy Case 12-12020” (Doc. #90).
A. Standard of Review
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted).

To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”

Id. at 555.

See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more

than

an

accusation.”

unadorned,

Ashcroft

v.

This requires

the-defendant-unlawfully-harmed-me
Iqbal,

556

U.S.

662,

678

(2009)

(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,”
v.

Berzain,

omitted).

654

F.3d

1148,

1153

(11th

Cir.

2011)

Mamani

(citations

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”

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Iqbal, 556 U.S. at 678.
consistent

with

a

facially plausible.”

“Factual allegations that are merely

defendant’s

liability

fall

short

of

being

Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012) (internal quotation marks and citations
omitted).

Thus, the Court engages in a two-step approach: “When

there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise
to an entitlement to relief.”

Iqbal, 556 U.S. at 679.

B. Factual Allegations
On October 21, 2013, plaintiff filed his 1st Amended Complaint
(Doc. #81) pursuant to the Court’s October 1, 2013, Opinion and
Order (Doc. #79) granting leave to file an Amended Complaint
subject to the guidelines provided in the Opinion and Order.

The

1st Amended Complaint sets forth 9 Counts for fraud (Count #1),
violations

of

the

federal

Truth

in

Lending

Act

(Count

#2),

fraudulent misrepresentation (Count #3), unjust enrichment (Count
#4), common law conspiracy (Count #5), RICO (Count #6), quiet title
(Count #7), usury laws (Count #8), and copyright infringement
against GMAC, Wells Fargo, and Ocwen only (Count #9).
Taking all the allegations as true, plaintiff alleges that he
purchased or built a home in approximately 2005, with a loan from
Pinnacle, after Busey Bank provided the construction loan.

Over

the years, plaintiff paid $100,000 towards a $283,000 home that is
now worth only $200,000.

The State of Florida, “by” way of the

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Lee County Clerk of Court, recorded the mortgage lien on the
property.

Defendants and non-defendants Pinnacle, Countrywide,

Bank of America, then GMAC purchased and assumed the note at
various times thereafter.
In November 2007, plaintiff filed a fraud action against GMAC
and others in state court.

In December 2007, Wells Fargo filed

foreclosure proceedings in state court even though Countrywide
owned the note and mortgage at the time, and until July 2008 when
Bank of America purchased the debt of Countrywide.

In March 2009,

the State of Florida, “by and through” the state court, granted
summary judgment in favor of Wells Fargo and GMAC in their state
court action.

The State of Florida, “by” way of the 20th Judicial

Circuit Court, aided and abetted by granting summary judgment in
favor of the financial institution defendants.

The State of

Florida refused to remove the liens on the property so plaintiff
could not sell it.

Plaintiff had to file for bankruptcy after

summary judgment was granted in the foreclosure action.
In July 2009, GMAC force placed insurance upon plaintiff’s
property, overcharging him in the amount of $7,128.00, despite the
fact

that

default.

plaintiff

was

insured,

and

forcing

plaintiff

into

Plaintiff also alleges that he was defrauded of $21,000

at the time of the original closing.
Plaintiff alleges that he was a victim of fraud by defendants
and seeks to cancel the Note and Mortgage and to rescind the

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residential mortgage transaction pursuant to TILA, RESPA, and
Regulation Z.
C. The 1st Amended Complaint
As a preliminary matter, the title of a pleading must name
all parties.

Fed. R. Civ. P. 10(a).

As the caption of the now

operative 1st Amended Complaint no longer names Bear-Stearns,
Impac Funding, Pinnacle Financial, Countrywide Home Loans, or John
or Jane Does 1-1000, the Court will consider these defendants
dismissed.
1. Rule 8 and 9
Plaintiff includes many nonessential allegations with regard
to the national mortgage practices of the defendant financial
institutions,

including

banks

not

named

in

the

1st

Amended

Complaint, without explaining how the allegations are relevant to
plaintiff’s specific case. 2

Plaintiff also appears to have filed

the 1st Amended Complaint as a result of a state court case (2007CA-014942) wherein a Final Judgment of Foreclosure (Doc. #113-1)
has now issued.

Plaintiff references the foreclosure action but

does not specifically seek to have this Court intervene in those

2

The Court is not considering the various “sovereign citizen”
or “secured-party creditor” allegations. See, e.g., United States
v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011); Santiago v. Century
21/PHH Mortgage, 1:12-CV-02792-KOB, 2013 WL 1281776, *5 (N.D. Ala.
Mar. 27, 2013) (“conspiracy and legal revisionist theories of
“sovereign citizens” are not established law in this court or
anywhere in this country's valid legal system.”)

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proceedings.

As a result, the Court need not address defendants’

arguments with regard to abstention, the Rooker-Feldman 3 doctrine,
or whether these claims should have been brought as compulsory
counterclaims in the foreclosure action.

The Court finds that

plaintiff has not provided a short, plain statement, pursuant to
Federal Rule of Civil Procedure 8(a)(2), such that defendants would
be on notice of the claims against them.
Plaintiff alleges several fraud or fraud related causes of
action.

Under Federal Rule of Civil Procedure 9(b), plaintiff

must present fraud-based allegations “with particularity”.
9(b)

is

satisfied

by

identifying

the

specific

Rule

statements,

representations, or omissions; the time and place of such statement
and the person responsible; the content of the statement and how
it misled plaintiff; and what defendants obtained as a result of
the fraud.

Brooks v. Blue Cross & Blue Shield of Florida, Inc.,

116 F.3d 1364, 1371 (11th Cir. 1997).

The Court finds that the

fraud allegations set forth in the 1st Amended Complaint are not
stated with particularity as required by Fed. R. Civ. P. 9(b).
Consequently, the 1st Amended Complaint is due to be dismissed
for failure to comply with Federal Rules of Civil Procedure 8 and
9, and for the additional bases below.

3

See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923);
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462
(1983).

- 6 -

2. Immunity
The Court notes that the allegations against the State of
Florida are all based on the actions taken by judicial officers or
the Clerk of Court in their official capacity but attributed to
the State of Florida.

Plaintiff seeks damages against the State

of Florida, however the State of Florida has not waived its
sovereign immunity from suit for the alleged actions in this case.
See Fla. Stat. § 768.28.

Therefore, the State of Florida is due

to be dismissed with prejudice on this basis.
To the extent damages are sought for the actions of Judge
Carlin as set forth in the 1st Amended Complaint, such claims are
also dismissed because a judicial officer is entitled to judicial
immunity for decisions rendered in the foreclosure action as the
presiding judge.

Stump v. Sparkman, 435 U.S. 349, 357 (1978).

To

the extent that damages are sought for the actions taken by the
Lee County Clerk in the exercise of its duties in filing and
recording liens, such claims are also dismissed because the court
clerk would be entitled to qualified immunity for the actions set
forth in the 1st Amended Complaint.

Tarter v. Hury, 646 F.2d

1010, 1013 (5th Cir. Unit A June 1981) 4; Hyland v. Kolhage, 267 F.
App’x 836, 842 (11th Cir. 2008).

4

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc) the Eleventh Circuit adopted as binding precedent
all the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
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D. Specific Counts
1. TILA – Count #2
In the October 1, 2013, Opinion and Order, the Court noted
that the claim pursuant to the Truth and Lending Act (TILA)
appeared to be time-barred.

(Doc. #79, pp. 13-14.)

In the 1st

Amended Complaint, plaintiff alleges that defendants failed to
include

and

disclose

certain

charges

in

the

finance

charges

incident to the extension of credit to plaintiff.
The

Eleventh

Circuit

summarized

the

applicable

follows:
The TILA requires creditors to provide
consumers with “clear and accurate disclosures
of terms dealing with things like finance
charges, annual percentage rates of interest,
and the borrower's rights,” including the
right of rescission.
Beach v. Ocwen Fed.
Bank, 523 U.S. 410, 412 (1998). Further, the
TILA provides that, when a loan made in a
consumer credit transaction is secured by the
consumer's principal dwelling, the consumer
has the right to rescind the transaction until
midnight of the third business day following
the consummation of the transaction or
delivery of the material disclosure and
rescission forms, whichever is later.
15
U.S.C. § 1635(a). If the creditor fails to
deliver the forms, or fails to provide the
required information, then the consumer's
right of rescission extends for three years
after the date of consummation of the
transaction, or until the property is sold,
whichever occurs first. 15 U.S.C. § 1635(f);
12 C.F.R. § 226.23(a)(3).
Within 20 days
after receipt of a notice of rescission, the
creditor shall take any necessary action to
reflect the termination of any security
interest created by the transaction. 15 U.S.C.
§ 1635(b).

- 8 -

law

as

Velardo v. Fremont Inv. & Loan, 298 F. App'x 890, 892 (11th Cir.
2008).

The Eleventh Circuit further noted that “all TILA claims

must be brought ‘within one year from the date of the occurrence
of the violation.’”

Id. at 892 (quoting 15 U.S.C. § 1640(e)).

In

this case, even if the Court considers any claims of fraudulent
concealment, plaintiff was on notice at least by 2007 when he
brought his own action for fraud in state court.

Therefore, the

Court finds that Count #2 is time-barred and the motions to dismiss
will be granted as to this count with prejudice.
2. RICO – Count #6
In the October 1, 2013, Opinion and Order, the Court found
that Count 16 failed to adequately allege a conspiracy under the
federal Racketeer Influenced and Corrupt Organizations Act (RICO).
(Doc. #79, p. 11.)

In the 1st Amended Complaint, plaintiff alleges

a conspiracy by defendants to perpetrate a fraud.
Section 1962(d) of the RICO Act makes it unlawful to conspire
to violate any of the provisions under the other subsections,
including (c).
unlawful

“for

Under Section 1962(c) of the RICO Act, it is
any

enterprise

engaged

interstate

or

person

employed

in,

the

foreign

or

by

or

associated

activities

commerce,

to

of

conduct

which
or

with

any

affect,

participate,

directly or indirectly, in the conduct of such enterprise’s affairs
through a pattern of racketeering activity.”

18 U.S.C. § 1962(c).

A civil RICO conspiracy claim requires the commission of an overt

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act in furtherance of the conspiracy.

Beck v. Prupis, 162 F.3d

1090, 1098 (11th Cir. 1998) (citing Bivens Gardens Office Bldg.,
Inc. v. Barnett Bank of Fla., Inc., 906 F.2d 1546, 1550 n.7 (11th
Cir. 1990)).

“A plaintiff can establish a RICO conspiracy claim

in one of two ways: (1) by showing that the defendant agreed to
the overall objective of the conspiracy; or (2) by showing that
the defendant agreed to commit two predicate acts.”
Ass'n

v.

Cigna

Corp.,

605

F.3d

1283,

1293

Am. Dental
(11th

Cir.

2010)(citations and quotation marks omitted).
In this case, plaintiff does not allege who the individual
conspirators are, or their individual roles in the conspiracy, and
plaintiff

fails

conspiracy.

to

allege

the

agreement

or

objective

of

the

To the extent that the overt act that caused the

injury is the alleged fraud by intentional nondisclosure, material
misrepresentation, and the creation of fraudulent loan documents,
see Doc. #81, ¶ 158, these allegations do not constitute the
necessary predicate acts.

The motions to dismiss will be granted

as to this count.
3. Copyright Infringement – Count #9
Plaintiff alleges that GMAC, Wells Fargo, and Ocwen violated
a common law copyright agreement by using his corporate name or
title on loan documents without authorization.
192.)

(Doc. #81, ¶¶ 188-

“In order to prove a claim of infringement a plaintiff must

show (1) that he owns a valid copyright in the work and (2) copying

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by the defendant.”

Original Appalachian Artworks, Inc. v. Toy

Loft, Inc., 684 F.2d 821, 824 (11th Cir. 1982).

There are no

allegations asserted to support that “PATRICK LORNE FARRELL©” is
a valid and registered work, and therefore this claim fails.
Plaintiff cites to 17 U.S.C. § 511, however the State of
Florida is not named in this count and therefore the subject of
this statute, a state’s immunity from suit, is not an issue.
the

extent

documentation”

that
and

plaintiff
an

relies

“affidavit”,

on

these

his

To

“sovereignty

documents

and

the

“sovereign citizen” theory fail to support an infringement of any
alleged copyright or to void the mortgage and note for this reason.
See Santiago v. Century 21/PHH Mortgage, 1:12-CV-02792-KOB, 2013
WL 1281776, *5 (N.D. Ala. Mar. 27, 2013) (“The attempt to divide
oneself into two separate entities, with only one being liable for
incurring debts, is a legal fiction and has been struck down
consistently in courts around the country.”)

Therefore, the

motion to dismiss of the applicable parties will be granted as to
this count.
4. State Law Claims – Counts #1, #3, #4, #5, #7, #8
Plaintiff also alleges various state claims, which are likely
time-barred to the extent that they relate to the foreclosure
proceedings in state court.

The fraud based claims are otherwise

subject to dismissal for failure to plead with the necessary
particularity pursuant to Fed. R. Civ. P. 9(b) as stated above.

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In Count #8, plaintiff alleges that the interest rate applied to
the loan transaction from 2005 was in excess of the legal rate,
and usurious under “Applicable Law”.

To the extent Count #8 is a

claim that the interest rate exceeds the applicable rate under
federal

law,

dismissal.

12

U.S.C.

§

85,

the

claim

is

also

subject

to

Plaintiff would have to allege that the rate is

usurious in the state in which the financial institution is located
however plaintiff fails to allege the rate applied or what the
rate should have been.
The

Court

otherwise

declines

to

exercise

supplemental

jurisdiction over the state law claims based on the dismissal of
the claims over which the undersigned had original jurisdiction.
28 U.S.C. § 1367(c)(3).

The Court also finds that plaintiff could

not amend to correct the deficiencies in the 1st Amended Complaint
such that leave to do so should be granted.
Accordingly, it is hereby
ORDERED:
1. Ocwen Loan Servicing, IMPAC Funding Corp., GMAC Mortgage,
LLC and Wells Fargo Bank, N.A.’s Joint Motion to Dismiss
(Doc. #84) is DENIED as moot in light of the amended filing.
2. Defendants Bank of America, N.A. and Countrywide Home
Loans, Inc.’s Motion to Dismiss (Doc. #83) is GRANTED.

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3. Ocwen Loan Servicing, IMPAC Funding Corp., GMAC Mortgage,
LLC and Wells Fargo Bank, N.A.’s Amended Joint Motion to
Dismiss (Doc. #85) is GRANTED.
4. The State of Florida’s, Corrected Motion to Dismiss (Doc.
#103) is GRANTED.
5. Plaintiff's Amended Complaint (Doc. #81) is DISMISSED with
prejudice as to Counts 2 (TILA) and Count 9 (infringement),
and without prejudice as to Count 6 (RICO).

The Court

declines to maintain supplemental jurisdiction over the
remaining counts pursuant to 28 U.S.C. § 1367(c)(3), which
are dismissed without prejudice to the extent not otherwise
statutorily

barred.

The

Clerk

shall

enter

judgment

accordingly, terminate all remaining motions and deadlines
as moot, and close the file.
DONE and ORDERED at Fort Myers, Florida, this
of August, 2014.

Copies: Parties of Record

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21st

day