Ellis v. U.S. Bank, N.A. et al

Filing 44

ORDER denying 40 Motion to Vacate. Signed by Judge Roy B. Dalton, Jr. on 4/3/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ERNEST MICHAEL ELLIS, III,
Plaintiff,
v.

Case No. 6:16-cv-1750-Orl37KRS

U.S. BANK, N.A.; CALIBER HOME
LOANS, INC.; WASHINGTON
MUTUAL BANK, F.A.; JPMORGAN
CHASE BANK, N.A.; and LASALLE
BANK, N.A.,
Defendants.
_____________________________________
ORDER
In the instant action, Plaintiff moves the Court to vacate its prior dismissal order
(Doc. 40.) For the reasons set forth below, the motion is due to be denied.
I.

PROCEDURAL HISTORY

On February 6, 2017, the Court dismissed Plaintiff’s Complaint for lack of subject
matter jurisdiction. (Doc. 34 (“Dismissal Order”).) Plaintiff now moves the Court to
vacate the Dismissal Order under Federal Rules of Civil Procedure 60(b) and (d). (Doc. 40
(“Motion to Vacate”).) Specifically, Plaintiff maintains that he has discovered new
evidence demonstrating that Defendants procured the Dismissal Order through fraud.
(Id.) Defendants U.S. Bank, N.A., and Caliber Homes, Inc. responded to the Motion to
Vacate on March 28, 2017 (Doc. 42), and Defendant JPMorgan Chase Bank, N.A.
(“JPMorgan”) joined in such response. (Doc. 43.)
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II.

LEGAL STANDARDS

On motion and just terms, a court may relieve a party from a final order due to
newly discovered evidence. Fed. R. Civ. P. 60(b)(2). To be entitled to such relief, a movant
must establish that: (1) the evidence has been newly discovered since the trial; (2) the
movant acted with due diligence to discover the new evidence; the evidence is not merely
cumulative or impeaching; (4) the evidence is material; and (5) the evidence is such that
a new trial would probably produce a new result. Waddell v. Hendry Cty. Sheriff’s Office,
329 F.3d 1300, 1309 (11th Cir. 2003).
In addition, to obtain relief based on fraud under Rule 60(b)(3), the movant must
prove by clear and convincing evidence that the adverse party obtained the verdict
through fraud, misrepresentation, or other misconduct. Id. The conduct complained of
must have prevented the losing party from fully and fairly presenting his case or defense.
See Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir. 1978).
In a similar vein, under Rule 60(d)(3), a court has the power to set aside a judgment
for fraud on the court. Fraud on the court embraces “only that species which does or
attempts to, defile the court itself, or is fraud perpetrated by officers of the court so that
the judicial machinery cannot perform in the usual manner its impartial task of adjudging
cases that are presented for adjudication . . . .” Traveler’s Indem. Co. v. Gore, 761 F.2d 1549,
1551 (11th Cir. 1985) (per curiam). This provision is narrowly construed and reserved for
“only the most egregious misconduct, such as bribery of a judge or members of a jury, or
the fabrication of evidence by a party in which an attorney is implicated.” Rozier, 573 F.2d
at 1338. To prevail, such claims must be supported by clear, unequivocal, and convincing
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evidence. Booker v. Dugger, 825 F.2d 281, 283 (11th Cir. 1987).
III.

ANALYSIS

In its Dismissal Order, the Court concluded that it lacked subject matter
jurisdiction over this action based on the Rooker-Feldman doctrine, 1 which precludes lower
federal courts from exercising appellate jurisdiction over final state-court judgments.
(Doc. 34, p. 5.) Importantly, though Plaintiff filed this action under the federal Truth in
Lending Act, the Court found that it was an impermissible attempt to overturn an adverse
judgment in a prior state foreclosure action (“Foreclosure Action”). (Id. at 4–5.)
A.

Newly Discovered Evidence
Plaintiff contends that he only recently learned of Defendants’ fraud, concealment,

and non-disclosure of certain evidence. (Doc. 40, p. 1.) In support, Plaintiff attaches a copy
of an affidavit dated October 17, 2016, from a forensic examiner, which concludes that
documents submitted in Foreclosure Action were forged. (Doc. 40-2, pp. 2–3
(“Affidavit”).)
As an initial matter, the plain language of Rule 60(b)(2) would seem to cast doubt
on its applicability where, as here, there has been no trial on the merits and no evidence
presented to the Court. Nevertheless, even it if applies, Plaintiff has not demonstrated
that his “newly discovered” evidence, which appears to be nothing more than “newly
produced” evidence, would alter the application of the Rooker-Feldman doctrine. To be

doctrine has its origins in two U.S. Supreme Court cases. Dist. of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923).
1 The

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sure, the Court would continue to lack subject matter jurisdiction even if it had the benefit
of the Affidavit at the time of the Dismissal Order.
B.

Fraud
Relying on the Affidavit, Plaintiff contends that the Dismissal Order should be set

aside because Defendants and their counsel committed fraud by submitting counterfeit
documents in the Foreclosure Action. (See Doc. 40, pp. 5–10.) Additionally, Plaintiff
argues that such actions amount to fraud on the Court. (Id.) In doing so, Plaintiff
essentially requests that the Court recognize a fraud on the court exception to the
Rooker-Feldman doctrine. The Court declines to do so.
First, not only has Plaintiff failed to meet his burden under Rule 60(b)(3) or
60(d)(3), but Plaintiff has also failed to establish that any alleged “fraud” occurred in this
action or was perpetrated on this Court. Indeed, the allegations pertain to submissions
made in the Foreclosure Action, not with respect to the Dismissal Order. Second, the
Eleventh Circuit has declined to recognize the exception Plaintiff requests. See Valentine
v. BAC Home Loans Servicing, L.P., 635 Fed. App’x 753, 757 (11th Cir. 2015); see also Soctt v.
Frankel, 606 Fed. App’x. 529, 532, 532 n.4 (11th Cir. 2015); Velazquez v. S. Fla. Fed. Credit
Union, 546 Fed. App’x 854, 859 (11th Cir. 2013). 2 Finding these authorities persuasive, the
Court concludes that Plaintiff’s Motion to Vacate is due to be denied.

While unpublished opinions are not binding precedent, they may be considered
as persuasive authority. See 11th Cir. R. 36-2; see also United States v. Almedina,
686 F.3d 1312, 1316 n.1 (11th Cir. 2012).
2

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IV.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Plaintiff’s Motion to Vacate
Court Order [dated] February 6, 2017 Granting JPMorgan Chase Bank, N.A.’s Motion to
Dismiss (Doc. 40) is DENIED.
DONE AND ORDERED in Chambers in Orlando, Florida, on April 3, 2017.

Copies to:
Counsel of Record

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