Baumann et al v. Bank of America, N.A et al

Filing 132

ORDER granting in part and denying in part 16 Defendant Marinosci Law Group, PC's Motion to Dismiss. The Motion is granted insofar as it seeks dismissal of Plaintiff Debora Baumann's claims against Marinosci Law Group, PC. In all other respects, the Motion is denied. Defendant Marinosci SHALL answer the Amended Complaint no later than fourteen (14) days from the date of this Order. Signed by Judge Paul G. Byron on 7/23/2018. (JRJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

JAMES E. BAUMANN and DEBORA K.
BAUMANN,
Plaintiffs,
v.

Case No: 6:15-cv-1951-Orl-40GJK

PROBER & RAPHAEL and MARINOSCI
LAW GROUP, PC,
Defendants.
/
ORDER
This cause comes before the Court following the U.S. Court of Appeals for the
Eleventh Circuit’s decision (Doc. 123) affirming in part and vacating in part this Court’s
September 1, 2016, Order located at Docket Entry 47. The following discussion only
addresses Plaintiffs’ claims against Marinosci Law Group, PC, that were given new life
by Plaintiffs’ appeal. On remand, the Court now addresses Defendant Marinosci Law
Group, PC’s Amended Motion to Dismiss (Doc. 16 (“Motion”)). Upon review, the Motion
is due to be granted in part and denied in part.
I.

BACKGROUND 1
Pro se Plaintiffs, James E. Baumann and Debora K. Baumann, 2 brought this action

on November 17, 2015, against Defendants, Bank of America, N.A. (“BANA”), Quarles &

1

This account of the facts is taken from the Complaint (Doc. 1). The Court accepts
these factual allegations as true when considering motions to dismiss. See Williams
v. Bd. of Regents, 477 F.3d 1282, 1291 (11th Cir. 2007).

2

The Amended Complaint generally does not distinguish between the two Plaintiffs,
James Baumann and Debora Baumann. (Doc. 11).

Brady, LLP (“Q&B”), Prober & Raphael, and Marinosci Law Group, PC (“Marinosci”).
Plaintiffs executed two mortgage agreements secured by real property owned by
Plaintiffs, one with BANA, the other with Countrywide Home Loans, Inc., which was
thereafter assigned to BANA. On December 7, 2012, Plaintiffs mailed BANA notices that
the mortgage obligations were rescinded pursuant to the Truth in Lending Act (“TILA”),
15 U.S.C. §§ 1601–1667f. 3
The Amended Complaint brought claims against Defendants under TILA, the Fair
Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692–1692p, the Florida
Consumer Collection Practices Act (“FCCPA”), Fla. Stat. §§ 559.55–559.785, and a
settlement agreement with BANA. The majority of the claims stated in the Amended
Complaint have been dismissed by the Court or voluntarily by the parties. (See, e.g.,
Docs. 47, 115). Critically, the Court dismissed Counts III and IV—which assert FDCPA
and FCCPA claims—as against Marinosci. (Doc. 47, p. 8). The Court’s grant of Defendant
Marinosci’s Motion to Dismiss was vacated in part by the Eleventh Circuit, with
instructions for the Court to “address the viability of the settlement-based claims in the
first instance.” (Doc. 123, pp. 10–14). The Court therefore revisits these claims.
At this time, Plaintiffs’ only surviving claims against Marinosci are Counts III and
IV. Counts III and IV allege Marinosci violated the FDCPA and FCCPA by (1) attempting
to collect a debt that was rescinded pursuant to the TILA, (2) “[f]iling documents in the

3

In its September 1, 2016, Order, the Court held that Plaintiffs’ purported rescissions
were ineffective because they were untimely. (Doc. 47, pp. 4–5). The ineffectivenes s
of the rescission doomed several of Plaintiffs’ claims, which were dismissed for that
reason. (Id. at pp. 4–8). On appeal, the Eleventh Circuit affirmed the Court’s ruling
that Plaintiffs’ rescissions were ineffective. (Doc. 123, pp. 4–8).

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courts claiming to have been owed an amount that far exceeds the settlement amount 4
and threaten[ing] to foreclose on the Executive property when Plaintiff fully complied with
the settlement agreement,” and (3) “[f]iling false proof of claims in federal courts in an
attempt to collect a debt.” (Doc. 11, ¶¶ 70–76, 107, 147). Defendant Marinosci moved to
dismiss all claims against it for failure to state a claim upon which relief could be granted.
(Doc. 16).
II.

STANDARD OF REVIEW
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)(1). Thus, in order to survive a motion
to dismiss made pursuant to Rule 12(b)(6), the complaint “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is plausible on its face when the plaintiff “pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
Though a complaint need not contain detailed factual allegations, mere legal
conclusions or recitation of the elements of a claim are not enough. Twombly, 550 U.S.
at 555. Moreover, courts are “not bound to accept as true a legal conclusion couched as
a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). “While legal
conclusions can provide the framework of a complaint, they must be supported by factual
allegations.” Iqbal, 556 U.S. at 679. Courts must also view the complaint in the light most

4

The “settlement” refers to a settlement agreement between Plaintiff James Baumann
and BANA to resolve a bankruptcy matter. (Doc. 11, ¶¶ 114–20).

3

favorable to the plaintiff and must resolve any doubts as to the sufficiency of the complaint
in the plaintiff’s favor. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994) (per
curiam). In sum, courts must (1) ignore conclusory allegations, bald legal assertions, and
formulaic recitations of the elements of a claim; (2) accept well-pled factual allegations as
true; and (3) view well-pled allegations in the light most favorable to the plaintiff. Iqbal,
556 U.S. at 679.
The Court has a duty to liberally construe a pro se plaintiff's filings and to afford
greater leeway in alleging a claim for relief than what is given to licensed
attorneys. Tennyson v. ASCAP, 477 F. App’x 608, 609–10 (11th Cir. 2012) (per curiam).
Nevertheless, “a pro se party must follow the rules of procedure and evidence, and the
district court has no duty to act as [a pro se party’s] lawyer.” Id. at 610 (internal quotation
marks omitted). Moreover, the Court may not “rewrite an otherwise deficient pleading in
order to sustain an action” for a pro se party. GJR Invs., Inc. v. Cty. of Escambia, 132
F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds as recognized by Randall
v. Scott, 610 F.3d 701 (11th Cir. 2010).
III.

DISCUSSION
As noted above, Counts III and IV are the only surviving claims against Marinosci.

Before addressing Marinosci’s conduct vis-à-vis the settlement agreement and the
alleged false claims, the Court notes that Plaintiffs’ allegations that Marinosci violated the
FDCPA and FCCPA by attempting to collect a debt that was rescinded under TILA fail to
state a claim. Plaintiffs’ purported notices of rescissions were ineffective, thus foreclosing
any claims based on these allegations. (See, e.g., Docs. 47, 123).

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The remaining allegations sustaining Counts III and IV are as follows: (1) Marinosc i
filed legal papers attempting to collect an amount in excess of a settlement to which
James Baumann, and (2) Marinosci filed false proofs of claim in federal court. (Doc. 11,
¶ 76). Filing an unenforceable proof of claim in a bankruptcy proceeding constitutes an
unlawful debt collection practice violative of the FDCPA and FCCPA. Crawford v. LVNV
Funding, LLC, 758 F.3d 1254, 1259–61 (11th Cir. 2014); LeBlanc v. Unifund CCR
Partners, 601 F.3d 1185, 1190–92 (11th Cir. 2010). Accordingly, Counts III and IV state
plausible claims by Plaintiff James Baumann against Marinosci. Because Plaintiff Debora
Baumann was not a party to the alleged settlement or bankruptcy proceeding, 5 the
Amended Complaint fails to state a plausible claim by Plaintiff Debora Baumann against
Marinosci. (See Doc. 11).
IV.

CONCLUSION
It is therefore ORDERED and ADJUDGED as follows:
1. Defendant Marinosci Law Group, PC’s Amended Motion to Dismiss (Doc.
16) is GRANTED IN PART and DENIED IN PART.
a. The Motion is GRANTED insofar as it seeks dismissal of Plaintiff
Debora Baumann’s claims against Marinosci Law Group, PC.
b. In all other respects, the Motion is DENIED.

5

The allegations sustaining Counts III and IV involve “transactions concerning the
Executive Property,” a property that was owned by Plaintiff James Baumann. (Doc.
11, pp. 15–17). Notably, Plaintiff Debora Baumann was not a party to the note or
mortgage on the Executive Property (Doc. 11-3, pp. 8–9), the settlement of the
defaulted mortgage obligation on the Executive Property (Doc. 11-2, pp. 33–39), or
the allegedly fraudulent proofs of claim in Plaintiff James Baumann’s bankruptc y
proceedings (e.g., Doc. 11-1, p. 63; Doc. 11-2, p. 8).

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2. Defendant Marinosci shall answer the Amended Complaint no later than
fourteen (14) days from the date of this Order.
DONE AND ORDERED in Orlando, Florida on July 23, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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