Farrell v. State of Florida Republicans et al

Filing 79

OPINION AND ORDER granting 27 motion to dismiss; granting 28 motion to dismiss; granting 29 motion to dismiss; granting 59 motion to dismiss and the Complaint is dismissed without prejudice to filing an Amended Complaint within 30 days, s ubject to guidelines set forth in the Opinion and Order; granting plaintiff an additional 30 days to execute service of process on the unserved defendants; granting 54 Motion to Strike and the 51 Affidavit is stricken; granting 61 Motion to Strike and the 60 Affidavit is stricken; denying 62 Motion for Partial Summary Judgment; denying 66 Motion to Strike the 62 Response; denying 71 Motion to Strike the 70 Argument and denying construed motion for summary judgment contai ned in the Argument; granting 75 Motion to Strike the 72 Response to Defendants Response; striking sua sponte plaintiff's 51 60 64 Affidavits, plaintiff's 65 Demand for judicial notice, plaintiff's 72 Response, and plaintiff's 73 Demand for judicial notice. The Clerk shall make a notation on the docket that these documents have been stricken. Signed by Judge John E. Steele on 10/1/2013. (RKR)

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

Case No.

2:13-cv-140-FtM-29DNF

STATE OF FLORIDA REPUBLICANS, RICK
SCOTT, Governor, PAM BONDI, Attorney
General, JOHN STUMPF, Wells Fargo
CEO, Brian Moynihan, BOA CEO, THOMAS
MARANO, GMACM CEO, COUNTRYWIDE HOME
LOANS,
COUNTRYWIDE
FINANCIAL,
RICHARD J.
JOHNSON, JOSEPH
R.
TOMKINSON, WILLIAM ERBEY, OCWEN CEO,
OCWEN LOAN
SERVICING, BANK
OF
AMERICA, IMPAC SECURTED ASSETS,
IMPAC FUNDING CORP., GMACM, WELLS
FARGO BANK, LEE COUNTY SHERIFF,
STATE
ATTORNEY,
20th
Circuit,
CIRCUIT JUDGES OF THE 20TH CIRCUIT,
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court on review of plaintiff’s
pro se “Complaint for Fraud, Qui Tam, Quiet Title and Subsequent
Damages” (Doc. #1) filed on February 27, 2013.
Moynihan,

Countrywide Home

Loans,

Inc.,

Defendants Brian

Countrywide

Financial

Corporation (Countrywide collectively), and Bank of America, N.A.
(BOA or BANA) filed a Motion to Dismiss (Doc. #27); defendants
Ocwen Loan Servicing (Ocwen), IMPAC Secured Assets, IMPAC Funding
Corp. (IMPAC collectively), GMAC Mortgage, LLC (GMAC), and Wells

Fargo Bank (Wells Fargo) filed a Joint Motion to Dismiss (Doc.
#28); defendant William Erbey filed a Motion to Dismiss (Doc. #29);
and defendants Pam Bondi and Rick Scott’s Motion to Dismiss (Doc.
#59).
Also before the Court are defendants Pam Bondi and Rick
Scott’s Motion to Strike Doc. 51 (Doc. #54), Motion to Strike
“Affidavit” (Doc. 60) (Doc. #61), Motion to Strike Doc. 62, as
Scandalous, Pursuant to Fed. R. Civ. P. 12(F) (Doc. #66) and Motion
to Strike Plaintiff’s Reply to Response to Plaintiff’s Motion for
Summary Judgment (Doc. 70) (Doc. #71). Ocwen Loan Servicing, IMPAC
Secured Assets, IMPAC Funding Corp., GMAC Mortgage, LLC, and Wells
Fargo Bank also filed a Motion to Strike Doc. 72 as Scandalous
Pursuant to Fed.R.Civ.P. 12(f) (Doc. #75).
Plaintiff’s

motions

for

summary

judgment,

to

the

extent

included in various filings, are also addressed below.
I.
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

-2-

the speculative level.”

Id. at 555.

See also Edwards v. Prime

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

This requires “more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citations omitted).
Due to plaintiff’s pro se status, the Court liberally construes the
allegations.

Haines v. Kerner, 404 U.S. 519, 520 (1972).

The Court finds that the Complaint fails to comply with Rule
8(a)(2) by providing a short, plain statement as to the claim
showing entitlement to relief, and Rule 9(b) as to some claims that
require pleading with particularity.

Therefore the motions to

dismiss will be granted and the Complaint dismissed with leave to
amend, if plaintiff is able to do so.
II.
Plaintiff filed a 515 paragraph long pleading against a
variety of unrelated defendants alleging various unrelated claims
for relief.

Plaintiff jumbles together past events, and other

cases pending in state court or previously dismissed in state or
federal court, along with present claims.

Starting in paragraph

112, plaintiff discusses “current state cases to be enjoined”, and
in paragraph 139, plaintiff starts “Part 2-Complaint for Mortgage
Fraud, Qui Tam, Quiet Title” but proceeds to discuss past filings
and other cases in state court and bankruptcy court not before this
Court, and does so for several paragraphs.

-3-

In paragraph 280, plaintiff appears to allege material and
false representations causing damages due to plaintiff’s reliance.
It is unclear if the representations include those made in the
other

cases,

or

if

the

allegations

are

directed

to

the

representations made in conjunction with a closing in this case.
Plaintiff alleges a failure to provide disclosures prior to closing
as required under the Truth in Lending Act and the Real Estate
Settlement Procedures Act, and therefore the fraudulent inducement
of plaintiff into signing the closing documents for an inflated
amount.

(Doc. #1-1, ¶¶ 281, 282.)

Plaintiff seeks to rescind or

cancel the residential mortgage transaction, cancel the Note and
Mortgage, that plaintiff be granted title to the property free and
clear,

triple

damages,

fees

and

costs,

and

an

injunction

permanently enjoining any further foreclosure proceedings.
#1-2, ¶¶ 295-303.)

(Doc.

These allegations are generally stated and

appear to summarize the relief sought in some of the actual counts.
The first six counts are unnumbered and unidentified, and the
remaining counts are numbered.

Liberally construing the pleadings

based on plaintiff’s pro se status, the Court has identified the
first six counts below and summarized all counts.
In unnumbered Count One, plaintiff seeks judgment against the
State of Florida for $5 million for having endured 5 years of
malicious

prosecution

Affidavit.

(Doc.

for

#1-2,

felonies,
¶¶

based

305-07.)

-4-

It

upon
is

a

fraudulent

unclear

what

relationship these allegations have to the mortgage and foreclosure
allegations, but the Court will treat these paragraphs as a claim
for malicious prosecution.
In unnumbered Count Two, plaintiff alleges trespass by GMAC,
Wells

Fargo,

and

the

State

of

Florida

because

foreclosure

proceedings were initiated without charges and without due process.
Plaintiff

demands

title

to

the

home

and

encumbrances on the property to be voided.

for

all

liens

and

(Id., ¶¶ 308-312.)

In unnumbered Count Three, plaintiff alleges a breach of
contract by the State of Florida of Article Six of the United
States Constitution by committing acts of fraud against plaintiff
since 1993.

Plaintiff seeks $20 million and nullification of any

liens on his property.

(Id., ¶¶ 313-318.)

In unnumbered Count Four, plaintiff alleges civil rights
violations by the State of Florida, GMAC, Wells Fargo, Bank of
America, and Ocwen for conduct or actions in previously filed cases
in state court.

There are no clear factual allegations in support

but plaintiff seeks over $1 million in damages. (Id., ¶¶ 319-331.)
In

unnumbered

Count

Five,

plaintiff

alleges

copyright

infringement by GMAC, Wells Fargo, and Ocwen Loan by using his
“NAME-TITLE” after plaintiff filed a Common Law Copyright Agreement
in 2008 with the state court.
cost of litigation since 2008.

Plaintiff seeks $10 million and the
(Id., ¶¶ 332-340.)

-5-

In unnumbered Count Six, plaintiff alleges fraud against the
State of Florida. Plaintiff complained about mortgage fraud issues
in 2008, as detailed in his 2007 state case, to the Attorney
General.

In response, he was provided forms to show his damages,

and plaintiff did so by providing receipts totaling $45,000.

The

State of Florida received a judgment as part of a collective action
suit against Countrywide, but plaintiff did not receive his portion
of the judgment despite sending a notice and demand.

(Id., ¶¶ 341-

352.)
“Count

7”

is

brought

under

the

Home

Ownership

Equity

Protection Act against GMAC, Wells Fargo, Bank of America, and
IMPAC.

Plaintiff alleges violations of the Act, including failing

to make correct disclosures on the HUD-1, engaging in a pattern and
practice of extending credit to plaintiff without regard to his
ability to repay, and imposing illegal fees.

Plaintiff seeks to

rescind his mortgage loans and take title to the subject property.
(Id., ¶¶ 353-367.)
“Count 8” is brought against GMAC, Wells Fargo, BOA, and IMPAC
and simply provides that defendants are subject to RESPA, and as a
result of their violations are liable for 3 times the amount of
charges paid for “settlement services.”

(Id., ¶¶ 368-369.)

“Count 9” is brought under the federal Truth-In-Lending Act
(TILA) against defendants GMAC, Wells Fargo, BOA, and IMPAC.
Plaintiff alleges that defendants failed to include and disclose

-6-

certain charges on the TILA statement and he therefore has the
right to rescind the transaction.

(Id., ¶¶ 370-374.)

“Count 10” alleges a violation of the federal Fair Credit
Reporting Act by GMAC, Wells Fargo, BOA, and IMPAC for their
wrongful and negative reporting to credit agencies resulting in
negative reports and a lower FICO score.
and punitive damages.

Plaintiff seeks actual

(Id., ¶¶ 375-382.)

“Count 11” alleges that defendants GMAC, Wells Fargo, BOA, and
IMPAC violated Florida’s Deceptive and Unfair and Trade Practices
Act by taking advantage of plaintiff’s inability to understand the
transactions

due

to

defendants’

failure

to

disclose

material

information and misrepresentation of the terms of the transaction,
charging plaintiff an excessive price for services, and rendering
services knowing there was no reasonable probability of repayment.
Plaintiff seeks three times actual damages and injunctive relief.
(Id., ¶¶ 383-387.)
“Count 12” alleges “mortgage fraud” by “all named defendants”
because plaintiff was fraudulently induced into signing a mortgage
loan that was unconscionable and defendants concealed the theft of
plaintiff’s $18,000 deposit.

Plaintiff alleges that defendants’

intentional concealment and material misrepresentations were made
with knowledge and made with reckless disregard to plaintiff’s
rights.

-7-

“Count 13” provides that defendants IMPAC Funding and BOA
knowingly and intentionally concealed material information before,
at, and after the closing, and materially misrepresented material
information to plaintiff’s detriment in executing mortgage loan
documents.

(Id., ¶¶ 393-397.)

The Court will assume this is a

fraudulent misrepresentation claim.
“Count 14” alleges a breach of fiduciary duty by GMAC, Wells
Fargo, BOA, and IMPAC.
fiduciaries
services,

because
and

fraudulently

Plaintiff alleges that defendants were

they

they

inducing

contracted

breached

their

plaintiff

into

to

provide

duties
a

to

mortgage

mortgage
plaintiff

loan
by

transaction.

Within the count, plaintiff also alleges that GMAC demanded more
for insurance and then admitted the error in May 2009.

(Id., ¶¶

398-402.)
“Count 15” provides that defendants GMAC, Wells Fargo, BOA,
and IMPAC had an implied contract with plaintiff to ensure that he
understood all fees that would be paid, and that defendants were
unjustly enriched by charging a higher principal and increased
interest rate at the time of closing.

(Id., ¶¶ 403-406.)

Within

the same count, plaintiff goes on to allege that the unjust
enrichment is subject to enforcement by the U.S. Treasury based on
the pooling of mortgages and notes, and that “the bank” has $9.1
million based on plaintiff’s signature, which has a value of $1
million based on the registration of his birth certificate with the

-8-

Department of Commerce.

Plaintiff alleges that defendants have

been unjustly enriched by the $9.1 million.

Plaintiff further

alleges that a default occurred when GMAC increased plaintiff’s
insurance payment.

(Id., ¶¶ 407-423.)

“Count 16” is a civil RICO claim against all defendants and
alleges a conspiracy from July 2004 to the present with each
defendant

being

an

“enterprise

objective to defraud plaintiff.

Defendant”

with

the

aim

and

(Id., ¶¶ 424-427.)

“Count 17” alleges fraud against GMACM LLC, which may be the
same entity as the previously referenced GMAC or at least a related
entity, for requiring an additional $7,128 more to be placed in
escrow

for

forced

placed

insurance.

Plaintiff

alleges

that

“Defendants” are liable in an amount equal to 3 times the amount of
$7,128 in extra charges paid.

(Id., ¶¶ 428-433.)

“Count 18” alleges violations of TILA and RESPA against
defendants GMAC, Wells Fargo, BOA, Impac Funding, and IMPAC Secured
and appears to combine the sparse allegations in Counts 7 and 8
into this one count.

Plaintiff alleges defendants failed to

disclose the true loan amount, and the difference between the
actual cost, and the inflated amount of the note is due to
defendants’ converting the difference for their own purpose and the
inflated payments are the “core of this controversy.”

Plaintiff

alleges that he timely rescinded the transaction, provided notice,

-9-

and equitable tolling applies to extend the period of rescission
actions.

(Id., ¶¶ 434-468.)

“Count 19” is brought under the False Claims Act “for T.A.R.P.
and Securities Fraud” against defendants GMAC, Wells Fargo, BOA,
and IMPAC.

Plaintiff asserts that his filing of a qui tam action

against defendants in 2009, and also in later years, resulted in
the government obtaining millions because the Federal Reserve and
the United States, separately, sued defendants and obtained an
agreement or otherwise recovered $25 billion in damages, payable to
plaintiff.

Plaintiff asserts that the “only issue left” is for

plaintiff to recover his portion of the damages.

Plaintiff, as a

“qui tam relator” seeks to recover all damages and civil penalties
on behalf of the United States.

(Id., ¶¶ 469-495.)

III.
A.

All Defendants:
The only Counts that apply to all defendants and do not

specifically identify a defendant are Counts 12 and 16. Therefore,
these are the only counts that could pertain to Mr. Moynihan, Mr.
Erbey, Countrywide, Bondi, and Scott. Neither Count identifies any
specific actions by any specific defendant, and the only reference
to

defendants

Moynihan,

Erbey,

Countrywide,

Bondi,

and

Scott

appears to be in the caption of the case itself.
Count 12 alleges mortgage fraud but is not pled with any
particularity pursuant to Fed. R. Civ. P. 9(b), and impermissibly

-10-

lumps defendants together without stating what a specific defendant
did in furtherance of the fraud, Magluta v. Samples, 256 F.3d 1282,
1284 (11th Cir. 2001).

“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.”
1357

United States ex rel. Atkins v. McInteer, 470 F.3d 1350,

(11th

Cir.

2006)(internal

quotation

omitted)(alteration in original).

marks

and

citation

Therefore, Count 12 fails to

state a plausible claim and will be dismissed as to all defendants.
Count 16 alleges a conspiracy under the federal Racketeer
Influenced and Corrupt Organizations Act (RICO), however plaintiff
fails to allege or identify any predicate acts, see 18 U.S.C. §
1961(1), that constitute the “pattern of racketeering activity”,
see 18 U.S.C. §§ 1961(5), 1962(d).
granted

as

to

Count

16,

and

The motions to dismiss will be

Count

16

dismissed

as

to

all

defendants.
B.

Ocwen, IMPAC1, GMAC, and Wells Fargo:
These defendants “note that Plaintiff has thus far failed to

properly serve the Moving Parties pursuant to the requirements of
Federal Rule of Civil Procedure 4.”

(Doc. #28, p. 2 n.1.)

Defendants only seek dismissal because the Complaint is a shotgun

1

This includes IMPAC Secured Assets and IMPAC Funding Corp.
who are both named as defendants.
-11-

pleading and because the matter should be handled in state court
where litigation is currently pending. There is no argument in the
motion to support a claim of failure to serve process and therefore
defendants are deemed to have waived this argument.
P. 12(h)(1).

Fed. R. Civ.

Plaintiff will only be required to serve further

pleadings on these defendants pursuant to Fed. R. Civ. P. 5, as
formal service is deemed waived.
As to the arguments presented, the Court agrees that the
Complaint is a shotgun pleading that fails to comply with Fed. R.
Civ. P. 8, as further detailed below as to Bank of America.2

As it

is not clear what counts will remain at issue and whether they are
precluded by state court litigation, the motion to dismiss will be
denied on this basis.
C.

Bank of America, N.A.:
This defendant is named in Counts 4, 7 through 16, 18, and 19.

Counts 12 and 16 are addressed above and the motion is granted as
to these counts.

The motion is also due to be granted as to the

other counts for the reasons stated below.
Count 4 alleges a violation of plaintiff’s civil rights
without any factual support.
insured,

plaintiff

has

not

Although the bank is federally
pled

that

Bank

governmental actor subject to 42 U.S.C. § 1983.

2

of

America

is

a

See San Fran. Arts

Some or all of these defendants are named in Counts 2, 4, 5,

7-19.
-12-

&

Athletics,

Inc.

v.

U.S.

Olympic

Comm.,

483

U.S.

522,

542

(1987)(the fundamental inquiry is whether there is a “governmental
actor to whom the prohibitions of the Constitution apply.”)
Count 7 alleges a claim under the Home Ownership and Equity
Protection Act of 1994 (HOEPA).

This Act was passed as an

amendment to the Truth and Lending Act (TILA).

HOEPA requires

certain disclosures, 15 U.S.C. § 1639(a), and addresses qualifying
“high-cost mortgages” 15 U.S.C. § 1602(b)(b). There are no factual
allegations

made

to

support

a

claim

that

HOEPA

applies

to

plaintiff’s mortgage therefore plaintiff has failed to state a
plausible claim under HOEPA as to any of the named defendants.
Additionally, the attached Mortgage (Doc. #27-1), specifically
referenced and incorporated by the Complaint, reflects that the
claim under HOEPA, as well as the claims under TILA in Counts 9 and
18 may be barred by the applicable statutes of limitation.

15

U.S.C. §§ 1635(f), 1640(e).
Count 8 is brought under the Real Estate Settlement Procedures
Act (RESPA), 12 U.S.C. § 2601, et. seq.

The claim fails to assert

any facts in support and therefore fails to state a claim as to how
Bank of America, or any of the other defendants, violated RESPA.
Count 9 is brought under TILA and plaintiff seeks to rescind
the mortgage transaction for the failure to disclose certain
charges on the settlement statement.

As previously stated, if the

mortgage at issue is the 2005 transaction, the claim appears to be

-13-

time-barred for purposes of receiving a rescission.

Further,

plaintiff fails to state a claim against defendants because it is
unclear whether it is the same 2005 mortgage at issue for all
defendants or if separate transactions are at issue. The motion to
dismiss will be granted as to this count.
Count 10 seeks relief under the Fair Credit Reporting Act
(FCRA) because defendants provided incorrect information to credit
reporting agencies thereby negatively impacting plaintiff’s credit
rating.

The FCRA prohibits “furnishers of information” from

reporting “any information relating to a consumer to any consumer
reporting agency if the person knows or has reasonable cause to
believe

that

the

information

1681s-2(a)(1)(A).

is

inaccurate.”

15

U.S.C.

§

The FCRA does not however “provide a private

right of action to redress such a violation”.

Green v. RBS Nat’l

Bank, 288 F. App'x 641, 642 (11th Cir. 2008).

If a financial

institution furnishes negative information to a credit reporting
agency regarding

a

customer in writing.

customer,

notice

must

be

provided

15 U.S.C. § 1681s-2(a)(7)(A)(i).

to

the

If after

receiving notice of a dispute with regard to the accuracy of any
information provided to a credit reporting agency, a furnisher of
information has certain duties subject to a private cause of
action.

15 U.S.C. § 16810s-2(b).

Plaintiff does not allege that

he lodged a dispute with a credit reporting agency that was not
investigated.

Therefore, the motion to dismiss will be granted.

-14-

Count 11 is brought under the Florida Deceptive and Unfair
Trade Practices Act (FDUTPA), Fla. Stat. § 501.201, et. seq.

The

FDUTPA specifically does not apply to banks regulated by federal
agencies such as Bank of America.

Fla. Stat. 501.212(4)(c).

Further, plaintiff does not allege that Bank of America falls
outside the exclusion.

Therefore, the claim will be dismissed.

Count 13 is a claim of fraudulent misrepresentation. As
currently

stated,

requirements

under

plaintiff
Fed.

R.

fails
Civ.

to
P.

meet
9(b)

the
to

heightened
“state

with

particularity the circumstances constituting fraud or mistake.”
Therefore the motion to dismiss will be granted for failure to
state a claim.
Count 14 asserts a breach of fiduciary duty by Bank of America
by virtue of its role as the mortgage provider.
relationship, the claim must fail.

If based on this

“Generally, the relationship

between a bank and its borrower is that of creditor to debtor, in
which parties engage in arms-length transactions, and the bank owes
no fiduciary responsibilities.” Capital Bank v. MVB, Inc., 644 So.
2d 515, 518 (Fla. 3d DCA 1994)(citations omitted).

A fiduciary

relationship may exist if plaintiff can show that an established
relationship where the bank knows the customer “is placing his
trust and confidence in the bank and is relying on the bank so to
counsel and inform him.”
allegations in this case.

Id. at 519.

Plaintiff has made no such

The motion to dismiss will be granted.

-15-

Count 15 claims unjust enrichment by Bank of America and other
lenders, collectively, based on an “implied contract” to ensure
that plaintiff understood all the fees.

To the extent that

plaintiff is asserting a quasi-contract theory of recovery, there
is an express contract, i.e., the Mortgage and Note, and therefore
plaintiff cannot assert such a theory as a basis for recovery. See
Moynet v. Courtois, 8 So. 3d 377, 379 (Fla. 3d DCA 2009)(claims
arising out of a contractual relationship will not support a claim
of unjust enrichment).

Additionally, plaintiff has not alleged

what the interest rate was, whether it was stated in the contract,
or whether the interest rate was usurious.

The motion to dismiss

will be denied.
Count 18 will be dismissed for the same reasons stated above
with regard to Counts 7, 8 and 9.

The Court notes that plaintiff

states additional relevant facts in this count that are an attempt
to assert that equitable tolling applies to his case.

Plaintiff

may be able to properly assert a claim under TILA or RESPA if
provided an opportunity to amend, and if the claims are stated
separately.

As currently alleged, the combined claims in Count 18

are redundant of Counts 8 and 9.
Count 19 is brought under the False Claims Act (FCA) and
plaintiff asserts that he is entitled to a portion of damages from
litigation initiated by the United States based on his report of
the

banks’

misdeeds.

This

action

-16-

was

not

brought

against

defendants as a qui tam action and plaintiff makes no specific
allegations against defendants in this case.

To the extent that

plaintiff seeks payment as a realtor under 31 U.S.C. § 3730(d),
such a request is not appropriately made in this case against Bank
of America.
D.

The motion to dismiss will be granted.

Pam Bondi and Rick Scott:
These defendants have filed a motion to dismiss for failure to

state a claim but state that by doing so, they do not “waive
defenses of any jurisdictional defect, insufficiency of process or
lack of service of process.”

(Doc. #59, p. 1.)

As no argument is

provided in support as to why process was insufficient or lacking,
the Court will deem this argument to be waived.

Therefore,

plaintiff will only be required to serve further pleadings on these
defendants pursuant to Fed. R. Civ. P. 5 because formal service is
deemed waived.
There

are

several

counts

that

reference

the

“State

of

Florida”, however none of the counts specifically name Pam Bondi or
Rick

Scott,

who

are

only

identified

in

otherwise defendants in Counts 12 and 16.

the

caption

and

are

To that extent, the

motion to dismiss will be granted.
Defendants do not purport to represent the “State of Florida”,
as named in Counts 1, 2, 3, 4, and 6, and the State of Florida is
not listed as a defendant in the caption of the case.

Therefore,

the allegations as to the State of Florida will not be addressed.

-17-

IV.
Defendants Pam Bondi and Rick Scott have moved to strike
various documents pursuant to Fed. R. Civ. P. 7 and 12(f).
## 54, 61, 66, 71.)

(Docs.

Defendants Ocwen, IMPAC, GMAC, and Wells Fargo

have also moved to strike, specifically
and Local Rule 3.01(c).

(Doc. #75.)

pursuant to Rule 12(f)
Under Rule 12(f), “[t]he

court may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Fed. R.
Civ. P. 12(f)(emphasis added).
strike

do

not

constitute

The documents defendants seek to

pleadings,

see

Fed.

R.

therefore the motion will be denied under Rule 12(f).

Civ.

P.

7,

Local Rule

3.01(c) provides that “[n]o party shall file any reply or further
memorandum directed to the motion or response allowed in (a) and
(b) unless the Court grants leave.”

M.D. Fla. R. 3.01(c).

The Court finds that Local Rule 3.01(c) does apply as a basis
to strike documents filed by plaintiff that are frivolous, not
filed in support of any motion, immaterial to any pleading or
motion currently pending, or that fail to advance any aspect of
litigation in this case as more specifically explained below. The
motions will be granted as to some of the documents, denied as to
those documents that may be deemed responses, and the Court will
strike other documents sua sponte. The Court declines to award any
fees or costs at this stage of the proceedings.

-18-

A. Plaintiff’s Affidavit “Notice to Principal is Notice to Agent
is Notice to Principal (Doc. #51):
The first two pages appear to be a notice demanding summary
judgment in plaintiff’s favor if defendants do not make a “point by
point

rebuttal”

to

the

attached

65

pages

of

disjointed paragraphs addressing tax liabilities.

citations

and

The Affidavit

contains no argument or relationship to the pleadings in this case.
Therefore, the Motion to Strike (Doc. #54) will be granted and the
document will be stricken.
B. Plaintiff’s Notice of Defendants Continued Fraud, In Violation
of Federal Reserve Board Consent Orders and D.O.J. Lawsuit (Doc.
#58):
The document moves for sanctions but it appears to be in
response to Ocwen’s motion to dismiss.

Therefore, the Court will

not strike the document.
C. Plaintiff’s Affidavit and Demand for Removal of Liens By Lee
County (Doc. #60):
This document seeks to eliminate liens as fraudulent and null
and void.

Plaintiff discusses his contract with Busey Bank to

build a home and the sale of his mortgage in a bundle by Pinnacle
Financial.

Plaintiff further states that the two stole $18,000

from him.

The request for relief and the allegations have no

bearing on the allegations made in the Complaint, Busey Bank and
Pinnacle Financial

are

not

defendants

in this

case,

and

the

document serves no purpose in furthering litigation in this case.

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The Motion to Strike (Doc. #61) will be granted and the document
will be stricken.
D. Plaintiff’s Response to State of Florida, Notice of Fraud Upon
the Court, Motion for Summary Judgment (Doc. #62):
The document is a response presumably to Pam Bondi and Rick
Scott’s

motion

to

dismiss.

The

document

calls

counsel

“a

despicable liar” and “lying demon blathers”, an “idiot”, a “LIAR”,
and otherwise responds that Pam Bondi and Rick Scott are “human
underlings” being sued as humans because the State of Florida is a
voiceless corporation.

Although the document is degrading, it is

a response and will remain as filed.

To the extent it was

construed as a motion for summary judgment or as containing a
request for summary judgment, such a request is premature and
denied.

The Motion to Strike (Doc. #66) will be denied, however

plaintiff is cautioned that the continued use of insults will
result in the striking of his filings with leave to re-file an
appropriate response without the language.
E. Plaintiff’s Affidavit and Demand for Removal of Liens by Lee
County (Doc. #64):
This document duplicates the same arguments set forth in
Document #60, and will be stricken for the same reasons, sua
sponte.

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F. Plaintiff’s Demand for Judicial Notice of Fraudulent “Standard
of Summary Judgment” and U.C.C.-1 Financing Statements (Doc. #65):
Plaintiff

states

that

his

sovereignty

documentation

was

recorded with Lee County for payment as a first in line lien
holder, and all other liens should be voided.

As the Complaint

fails to state a claim in favor of plaintiff and the document fails
to support an argument for summary judgment, and plaintiff is
seeking a summary decision in his favor and not for the Court to
take judicial notice, the document will be sua sponte stricken.
G. Plaintiff’s Argument That Summary Judgment Should be Granted in
This Case (Doc. #70):
The document appears to be a motion for partial summary
judgment in plaintiff’s favor removing all liens from property
based on past litigation.

As the other cases are not at issue

here, the motion will be denied.

Further, the motion is not

appropriate

proceedings

at

this

stage

of

Complaint requires amendment.

the

as

plaintiff’s

The Court will deny the Motion to

Strike (Doc. #71) and not strike the document, and will deny the
construed motion for summary judgment.
H. Plaintiff’s Response to Defendants Response to Motion for
Summary Judgment (Doc. #72):
The document appears to be a reply in support of plaintiff’s
Response to State of Florida, Notice of Fraud Upon the Court,
Motion for Summary Judgment (Doc. #62) and also contains insults
against counsel.

The document was not filed with leave of Court.

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The Motion to Strike (Doc. #75) will be granted and the document
stricken.
I.

Plaintiff’s Demand for Judicial Notice (Doc. #73):
This document appears to be a reiteration of past filed cases

and plaintiff’s opinion.

As there is no request for judicial

notice contained therein and no appropriate relief sought, the
document will be stricken, sua sponte.
Many

of

the

filings,

including

the

Complaint,

contain

expletives and derogatory remarks that do not serve to support any
allegations or further plaintiff’s case.

Plaintiff is cautioned

that any further filings should refrain from any unnecessary use of
profanities or risk being stricken from the record.
V.
The

Court

notes

that

defendants

“State

of

Florida

Republicans”, John Stumpf, Thomas Marano, Richard J. Johnson,
Joseph R. Tomkinson, the Lee County Sheriff, State Attorney, and
“Circuit Judges of the 20th Circuit” have not filed an appearance
in this case.

Further, the docket does not reflect that plaintiff

executed service on these defendants.

Under Federal Rule of Civil

Procedure 4(m), the Court “[i]f a defendant is not served within
120 days after the complaint is filed, the court--on motion or on
its own after notice to the plaintiff--must dismiss the action
without prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good cause
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for the failure, the court must extend the time for service for an
appropriate period.

Fed. R. Civ. P. 4(m).

As there is no

indication that service of process was executed in a timely manner
under Fed. R. Civ. P. 4(m), these defendants will be dismissed
without prejudice and the time to execute service of process
extended to allow for service of the Amended Complaint on these
defendants pursuant to Fed. R. Civ. P. 4.
Accordingly, it is now
ORDERED:
1.

Defendants Brian Moynihan, Countrywide Home Loans, Inc.,

Countrywide Financial Corporation, and Bank of America, N.A.’s
Motion to Dismiss (Doc. #27) is GRANTED and the Complaint is
dismissed without prejudice.
2.

Defendants Ocwen Loan Servicing, IMPAC Secured Assets,

IMPAC Funding Corp., GMAC Mortgage, LLC, and Wells Fargo Bank’s
Joint Motion to Dismiss (Doc. #28) is GRANTED and the Complaint is
dismissed without prejudice.
3.

Defendant William Erbey filed a Motion to Dismiss (Doc.

#29) is GRANTED and the Complaint is dismissed without prejudice.
4.

Defendants Pam Bondi and Rick Scott’s Motion to Dismiss

(Doc. #59) is GRANTED and the Complaint is dismissed without
prejudice.
5.

The

Complaint

for

Fraud,

Qui

Tam,

Quiet

Title

and

Subsequent Damages (Doc. #1) is dismissed without prejudice to
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filing an Amended Complaint within THIRTY (30) DAYS of this Opinion
and Order, subject to the guidelines outlined above.
6.

Plaintiff is GRANTED an additional THIRTY (30) DAYS

thereafter to execute service of process pursuant to Fed. R. Civ.
P. 4 on the unserved defendants who are not deemed to have waived
formal service of process.
7.

Defendants Pam Bondi and Rick Scott’s Motions to Strike

(Docs. ## 54, 61, 66, 71) are GRANTED IN PART AND DENIED IN PART.
Document 54 and 61 are granted and documents 66 and 71 are denied.
8. Defendants Ocwen, IMPAC, GMAC, and Wells Fargo’s Motion to
Strike (Doc. #75) is GRANTED.
9.

The following documents are stricken and the Clerk shall

make a notation on the docket that they are stricken pursuant to
this Opinion and Order:
i.

Plaintiff’s Affidavit “Notice to Principal is Notice to

Agent is Notice to Principal (Doc. #51);
ii.

Plaintiff’s Affidavit and Demand for Removal of Liens By

Lee County (Doc. #60);
iii. Plaintiff’s Affidavit and Demand for Removal of Liens by
Lee County (Doc. #64);
iv.

Plaintiff’s Demand for Judicial Notice of Fraudulent

“Standard of Summary Judgment” and U.C.C.-1 Financing Statements
(Doc. #65);

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v.

Plaintiff’s Response to Defendants Response to Motion for

Summary Judgment (Doc. #72); and
vi.
10.

Plaintiff’s Demand for Judicial Notice (Doc. #73).
Plaintiff’s Argument That Summary Judgment Should be

Granted in This Case (Doc. #70), construed as a motion for summary
judgment, is DENIED.
11. Plaintiff’s Response to State of Florida, Notice of Fraud
Upon the Court, Motion for Summary Judgment (Doc. #62), to the
extent construed to contain a motion for summary judgment, is
DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
October, 2013.

Copies:
Plaintiff
Counsel of record

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1st

day of