Madura et al v. BAC Home Loans Servicing, LP et al

Filing 702

ORDER: The Maduras' "Emergency Rule 60(b)(6) Motion for Relief from July 13 2010 Order of Dismissal with Prejudice and July 17, 2013 Judgment of Foreclosure in Light of Controlling Eleventh Circuit's Law Set Forth in January 31, 20 17 CSX Transportation v. General Mills" (Doc. # 693 ) and "Plaintiffs' Emergency Motion to Set Aside or, in the Alternative, to Stay this Court's Confirmation of Foreclosure Sale and 1/27/2017 Writ of Possession Order, Pending Ruling on their 02/21/2017 Rule 60(b)(6) Motion for Relief from Judgment of Foreclosure" (Doc. # 694 ) are DENIED. Signed by Judge Virginia M. Hernandez Covington on 3/8/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
DIVISION
ANDRZEJ MADURA and ANNA DOLINSKAMADURA,
Plaintiffs,
v.

Case No. 8:11-cv-2511-T-33TBM

BAC HOME LOANS SERVICING, LP, et
al.,
Defendants.
_______________________________/
ORDER
This

cause

comes

before

the

Court

pursuant

to

the

Maduras’ “Emergency Rule 60(b)(6) Motion for Relief from July
13 2010 Order of Dismissal with Prejudice and July 17, 2013
Judgment of Foreclosure in Light of Controlling Eleventh
Circuit’s Law Set Forth in January 31, 2017 CSX Transportation
v. General Mills” (Doc. # 693) and “Plaintiffs’ Emergency
Motion to Set Aside or, in the Alternative, to Stay this
Court’s Confirmation of Foreclosure Sale and 1/27/2017 Writ of
Possession Order, Pending Ruling on their 02/21/2017 Rule
60(b)(6) Motion for Relief from Judgment of Foreclosure” (Doc.
# 694), both of which were filed on February 22, 2017.

Bank

of America, N.A. filed a Response in Opposition to the Motion
on March 6, 2017. (Doc. # 700).
the Motions are denied.

For the reasons that follow,

I.

Background
An exhaustive discussion of the history of this case is

unwarranted at this juncture. On July 17, 2013, the Court
entered an Order granting Bank of America’s Motion for Summary
Judgment, as well as addressing a plethora of other motions.
(Doc. # 496). Among other things, the Court determined that
Bank of America was entitled to summary judgment against the
Maduras as to its foreclosure counterclaim. (Id.).
Prior to the entry of a final judgment, the Maduras filed
a motion to stay the case based on their submission of a
petition for writ of mandamus to the Eleventh Circuit based on
the argument that this Court should have entered an Order of
recusal. (Doc. # 504). On August 12, 2013, the Court denied
the motion to stay. (Doc. # 520).

Thereafter, on August 13,

2013, this Court entered its Final Judgment of Foreclosure.
(Doc. # 521).

The Eleventh Circuit affirmed the Court’s

Summary Judgment Order on November 10, 2014, in a lengthy and
detailed Opinion. (Doc. # 567)(Case 13-13953).

The United

States Supreme Court denied the Maduras’ petition for writ of
certiorari on October 9, 2015. (Doc. # 627).
Bank of America reports that the Maduras never paid the
total amount due and owing under the Final Judgment and the
United States Marshal held a public sale of the Property on

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February 11, 2016, at 2:00PM at the Manatee County Courthouse.
(Doc. # 636 at 3). Bank of America was the successful bidder.
The United States Marshal filed a Report of Sale on February
16, 2016. (Doc. # 633).

Thereafter, Bank of America filed a

Motion seeking an Order confirming the foreclosure sale. (Doc.
# 636).

The Maduras, on the other hand, filed a Motion

seeking an Order vacating the sale. (Doc. # 6 37).

On April

6, 2016, the Court granted Bank of America’s Motion to Confirm
the Foreclosure Sale and denied the Maduras’ Motion to Vacate
Foreclosure Sale. (Doc. # 639).
In response, the Maduras filed an appeal, and sought
leave to proceed in forma pauperis on appeal. By Order of the
Eleventh Circuit, the Maduras’ appeal was determined to be
frivolous and their motion for leave to appeal in forma
pauperis denied. (Doc. # 688). The Eleventh Circuit explained
that the Maduras never paid the amount owing on the mortgage,
the sale was conducted in the county where the property is
located, the Bank complied with the terms provided by the
court’s Order of foreclosure, and the notice of the sale
satisfied relevant federal and state notice requirements.
(Id.).
The Bank, as the owner of the property, filed a Motion
for Writ of Possession.

The Maduras opposed the issuance of

the Writ of Possession by arguing that their nephew, Lucas
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Lapinski, signed a lease to inhabit the property for a two
year term at the rate of $639 a month. After protracted
proceedings, the Magistrate Judge issued a Writ of Possession
on January 26, 2017. (Doc. # 689). The Magistrate Judge
considered affidavits provided by the parties and determined
that the lease was not valid because it was not approved by
the Condominium Association. (Id. at 9). The Magistrate Judge
also held that “Mr. Lapinski is not paying fair market rate
for this Condominium” and found “the lease was granted Mr.
Lapinski on favorable terms below market value as a blocking
move to prevent [the Bank] from gaining possession.” (Id. at
10).

The Maduras have filed a Motion for Reconsideration

regarding the issuance of the writ of possession (Doc. # 692),
which will be addressed via separate order.
By the present Motions, the Maduras contend that this
Court’s foreclosure judgment is contrary to recent rulings by
the Eleventh Circuit and that the Court should vacate its
summary judgment Order, as well as the Order of confirmation
of foreclosure sale.
II.

Legal Standard
Federal Rules of Civil Procedure 59(e) and 60 govern

motions for reconsideration.

Ludwig v. Liberty Mutual Fire

Ins. Co., Case No. 8:03-cv-2378-T-17MAP, 2005 U.S. Dist. LEXIS

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37718, at *6 (M.D. Fla. Mar. 30, 2005).

The time when the

party files the motion determines whether the motion will be
evaluated under Rule 59(e) or Rule 60. Id.

A Rule 59(e)

motion must be filed within 28 days after the entry of the
judgment.

Motions filed after the 28-day period will be

decided under Federal Rule of Civil Procedure 60(b).
As stated in

Florida College of Osteopathic Medicine,

Inc. v. Dean Witter Reynolds, Inc., 12 F. Supp. 2d 1306, 1308
(M.D.

Fla.

1998),

“A

motion

for

reconsideration

must

demonstrate why the court should reconsider its past decision
and set forth facts or law of a strongly convincing nature to
induce the court to reverse its prior decision.” Further, “in
the interests of finality and conservation of scarce judicial
resources, reconsideration is an extraordinary remedy to be
employed sparingly.” Lamar Adver. of Mobile, Inc. v. City of
Lakeland, 189 F.R.D. 480, 489 (M.D. Fla. 1999).
Likewise, Rule 60(b), Fed. R. Civ. P., is available to
relieve a party from a final judgment or order for the
following reasons:
(1)
(2)

(3)

mistake, inadvertence, surprise, or excusable
neglect;
newly
discovered
evidence
that,
with
reasonable diligence, could not have been
discovered in time to move for a new trial
under Rule 59(b);
fraud . . . misrepresentation, or misconduct
by the opposing party;
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(4)
(5)
(6)

the judgment is void;
the judgment has been satisfied . . .; or
any other reason that justifies relief.

Fed. R. Civ. P. 60(b).
Whether asserted under either Rule 59 or 60, “a motion
for reconsideration is not the proper forum for the party to
vent dissatisfaction with the Court’s reasoning.” Ludwig, 2005
U.S. Dist. LEXIS 37718, at *11 (internal citation omitted).
III. Analysis
Here, the Maduras claim that the Court’s foreclosure
judgment and related order confirming foreclosure sale are due
to

be

vacated

based

on

the

Eleventh

Circuit

case

CSX

Transportation, Inc. v. General Mills, Inc., No. 15-12095,
2017 U.S. App. LEXIS 1617 (11th Cir. Jan. 30, 2017).

In that

case, the court noted: “Whether federal common law borrows the
state rule of collateral estoppel to determine the preclusive
effect of a judgment rendered by a court that exercised
diversity jurisdiction is unclear under our case law.” Id. at
*8.

After listing several inconsistencies, the Eleventh

Circuit clarified: “We hold that federal common law borrows
the

state

rule

of

collateral

estoppel

to

determine

the

preclusive effect of a federal judgment where the court
exercised diversity jurisdiction.” Id. at *15. In rendering
this decision, the Eleventh Circuit retreated from its holding

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in Tampa Bay Water v. HDR Engineering, Inc., 731 F.3d 1171,
1179 (11th Cir. 2013), which states that federal common law
incorporates collateral estoppel as defined by federal law to
determine the preclusive effect of issues decided by a federal
court that exercised diversity jurisdiction.
The Maduras seize on the fact that the Eleventh Circuit’s
Order affirming this Court’s foreclosure Judgment - Madura v.
BAC Home Loans Servicing, L.P., 593 Fed. Appx. 834, 843 (11th
Cir. 2014) - cites to Tampa Bay Water.

The Maduras contend:

In
the
instant
case,
the
extraordinary
circumstances exist of Jan. 31, 2017 Eleventh
Circuit’s CSX Transportations, which bars its Tampa
Bay the basis of Nov. 10, 2014 affirmance of this
Court’s SJ foreclosure.
CSX Transportation also
bars this Court’s July 13, 2010 dismissal with
prejudice Order which was based on federal instead
on the state preclusion law. This also bars this
Court’s July 17, 2013 SJ foreclosure of rescinded
mortgage based on Bana forged Note where this Court
by
applying
federal
res
judicata
deprived
plaintiffs
from
raising
defenses
against
foreclosure of their home.
(Doc. # 693 at 7-8).
The

Court

rejects

the

Maduras’

argument

for

three

independent reasons.
1.

The Court Did Not Rely on Preclusion Exclusively

This Court’s 2013 summary judgment Order (Doc. # 496)
does not depend exclusively on claim preclusion or issue
preclusion

--

those

aspects

of

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the

Court’s

ruling

were

secondary to the analysis on the merits.

The Court made

merits-based findings on every aspect of the Maduras’ case-inchief and on each of the Maduras’ defenses. The Court’s Order
was detailed and contained an in-depth factual discussion, as
did the Eleventh Circuit’s Order of affirmance. (Doc. # 496).
The

Bank

correctly

posits

that

“the

Court

used

no

preclusion analysis to dispose of the Maduras’ RESPA claims,
their rescission claims, or in its discussion of BANA’s casein-chief and proof of standing.” (Doc. # 700 at 5)(internal
citations omitted).

While the Court did indeed refer to

principles of preclusion three times in its summary judgment
order (as to the Maduras’ forgery, usury, and TILA defenses),
the Court made alternative, merits-based findings.
Specifically, the Court determined that the Maduras
ratified any alleged forgery by making monthly payments for
years after discovering the alleged forgery. (Doc. # 496 at
36).

The Court likewise rejected the TILA defense, finding

that “the Maduras have failed to explain how a violation of
this statute would preclude foreclosure” and commenting that
the TILA allegations were not supported by the evidence. (Id.
at 50).

Similarly, with respect to usury, the Court found

that an overwhelming lack of evidence required that summary
judgment be granted as to that claim, specifically commenting:

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“The Maduras have not supported their usury claims with an
iota of evidence.” (Id. at 53-54).
As correctly argued by the Bank, the Court’s findings are
not affected by the recent CSX decision, and “the judgment
would remain perfectly valid and enforceable if its secondary
preclusion analysis were flawed. This applies to the Eleventh
Circuit’s affirmance as well.” (Doc. # 700 at 6).
2.

The CSX Decision is not Applicable

The holding in CSX applies where a federal court is
considering the preclusive effect of a prior federal judgment
where that earlier judgment was entered by a court exercising
diversity

jurisdiction.

(addressing
federal

law

whether
of

CSX

federal

collateral

Transp.,

common

846

law

estoppel

F.3d

borrows

“to

at

1335

state

determine

or
the

preclusive effect of an earlier judgment of a federal court
that exercised diversity jurisdiction”).

The Bank correctly

asserts: “The CSX case has no application here because this
Court and the Eleventh Circuit considered the preclusive
effect of two federal judgments (Madura 2 and Madura 3), both
of which invoked federal question jurisdiction and neither of
which arose under the Court’s diversity jurisdiction.” (Doc.
# 700 at 6).

In sum, CSX does not apply because the prior

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judgments that this Court referenced did not arise under
diversity.
3. Florida Collateral Estoppel Yields Identical Result
Even if the Maduras are correct in their supposition that
the CSX case applies to the facts, the outcome would be the
same.

This is because the Maduras’ claims are precluded

under both federal and Florida claim preclusion doctrines.
In

the

CSX

case,

the

Court

applied

Georgia

claim

preclusion principles, noting: “Georgia law requires the
earlier judgment to have been rendered in litigation between
identical parties or their privies.” CSX Transp., 846 F.3d at
1336. Florida law differs from the federal rule of collateral
estoppel in the same way.
So.

2d

1268,

1269-70

For instance, in E.C. v. Katz, 731

(Fla.

1999),

the

Court

explained:

“Florida has traditionally required there be a mutuality of
parties in order for the doctrine to apply. Thus, unless both
parties are bound by the prior judgment, neither may use it in
a subsequent action.” Likewise, the Florida Supreme Court has
clarified: “Under Florida law, collateral estoppel, or issue
preclusion,

applies

when

the

identical

issue

has

been

litigated between the same parties or their privies.” Gentile
v. Bauder, 718 So. 2d 781, 783 (Fla. 1998).

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The Maduras have not demonstrated how application of
Florida

collateral

different result.

estoppel

principles

would

produce

a

And, the Bank persuasively explains that

because Countrywide Home Loans, Inc. and Bank of America, N.A.
are “one and the same” it was permitted “to invoke collateral
estoppel or res judicata where its predecessor in interest was
involved in the prior judgment.” (Doc. # 700 at 8). See Metro.
Dade Cty., Bd. of Comm’rs v. Rockmatt Corp., 231 So. 2d 41, 44
n.5 (Fla. 3d DCA 1970)(“a successor in interest to a party
bound by the doctrine of res judicata is equally bound thereby
as being in privity with the latter.”).
Because the Court’s ruling was not dependent on claim
preclusion, because the CSX decision is not applicable to this
case, and because application of Florida claim preclusion
rules does not mandate a different result, the Court denies
the Maduras’ Motions. (Doc. ## 693, 694).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
The Maduras’ “Emergency Rule 60(b)(6) Motion for Relief
from July 13 2010 Order of Dismissal with Prejudice and July
17, 2013 Judgment of Foreclosure in Light of Controlling
Eleventh Circuit’s Law Set Forth in January 31, 2017 CSX
Transportation v. General Mills” (Doc. # 693) and “Plaintiffs’

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Emergency Motion to Set Aside or, in the Alternative, to Stay
this Court’s Confirmation of Foreclosure Sale and 1/27/2017
Writ of Possession Order, Pending Ruling on their 02/21/2017
Rule 60(b)(6) Motion for Relief from Judgment of Foreclosure”
(Doc. # 694) are DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 8th
day of March, 2017.

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