Dragash v. Federal National Mortgage Association et al

Filing 13

ORDER: The Clerk of Court is directed to re-open the case. Appellant's Motion for Reconsideration (Dkt. #8) is GRANTED. The Order of the Bankruptcy Court is hereby AFFIRMED. The Clerk of Court is directed to close this case. Signed by Judge James S. Moody, Jr on 3/25/2015. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DANIEL D. DRAGASH,
Appellant,
v.

Case No: 8:14-cv-3187-T-30
Bank. Case No. 8:14-bk-5735-KRM
Adv. Case No. 8:14-ap-434-KRM

FEDERAL NATIONAL MORTGAGE
ASSOCIATION and JPMORGAN
CHASE BANK, N.A.,
Appellees.

ORDER
THIS CAUSE comes before the Court upon the Appellant’s Motion for
Reconsideration (Dkt. #8) and Appellees Federal National Mortgage Association and J.P.
Morgan Chase Bank, N.A.’s Response to the Motion (Dkt. #11). Appellant requests
reconsideration of this Court’s Order dismissing the appeal due to Appellant’s failure to
file an initial brief. See Dkt. #6.
I.

Motion for Reconsideration

Motions for reconsideration of orders are permitted when there is (1) an intervening
change in controlling law; (2) newly discovered evidence; or (3) the need to correct clear
error or manifest injustice. Tristar Lodging, Inc. v. Arch Speciality Ins. Co., 434 F.Supp.
2d 1286, 1301 (M. D. Fla. 2006) aff'd sub nom. Tristar Lodging, Inc. v. Arch Specialty Ins.
Co., 215 Fed. App'x. 879 (11th Cir. 2007). A motion for reconsideration must demonstrate

why the court should reconsider its prior decision and “set forth facts or law of a strongly
convincing nature to induce the court to reverse its prior decision.” Id. A motion for
reconsideration cannot be used to re-litigate old matters, raise arguments, or present
evidence that could have been raised prior to the entry of judgment. See Parker v. Midland
Credit Management, Inc., 874 F.Supp. 2d 1353, 1359 (M. D. Fla. 2012); see also Arthur v.
King, 500 F.3d 1335, 1343 (11th Cir. 2007). “The decision to alter or amend a judgment is
an ‘extraordinary remedy.’” Tristar Lodging, Inc., 434 F.Supp. 2d at 1301.
This Court reviewed the Notice of Appeal and concluded that there was no “brief”
among the several documents, in excess of 500 pages, attached to it. See Dkt. #6. It
appears that Appellant is asserting that the document labeled “Statement of Issues” found
at Dkt. #9 and Dkt. #1-3, pages 5-9, is his initial “brief.” The Court’s requirement to
liberally construe pro se pleadings does not exempt a party from compliance with the
governing procedural rules, court orders, and substantive law. See In re Ragucci, 433 B.R.
889, 896 (Bankr. M.D. Fla. 2010) (“[I]n the Eleventh Circuit, pro se litigants are held to
the same standards, same laws, and same rules of court as those represented by counsel.”).
However, the Eleventh Circuit also instructs district court judges “to treat pro se litigants
… with special care because they occupy a position significantly different from that
occupied by litigants represented by counsel.” In re Witchard, 386 B.R. 358, 360 (Bankr.
M.D. Fla. 2006) (quoting Johnson v. Pullman, Inc., 845 F.2d 911, 914 (11th Cir. 1988))
(internal quotation marks omitted).
The Federal Rules of Bankruptcy Procedure require an appellate brief to contain, in
part, “a statement of the issues presented, a concise statement … setting out the facts

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relevant to the issues submitted for review,… identif[ication] of the rulings presented for
review, with appropriate references to the record; …a summary of the argument,… [and]
citations to the authorities and parts of the record on which the appellant relies.” Fed. R.
Bankr. P. 814. Construing Appellant’s “Statement of Issues” liberally and viewing it in
light of the other documents filed with the Notice of Appeal, the Court concludes that
Appellant did attempt to meet some of the requirements of an appellate brief. Therefore,
the Court will grant Appellant’s Motion for Reconsideration.
II.

Bankruptcy Appeal

Appellant appeals the Bankruptcy Court’s Order Denying Plaintiff’s Motion for
Clarification and Reconsideration. The Court reviews the Bankruptcy Court's factual
findings for clear error, and reviews the legal conclusions of the Bankruptcy Court de novo.
In re Tobkin, 578 Fed. App’x. 962, 964 (11th Cir. 2014).
Appellant filed a Chapter 13 bankruptcy petition. Thereafter, Appellant commenced
an adversary proceeding against Appellees regarding a promissory note secured by a
mortgage on Appellant’s property which he jointly owns with his spouse. The complaint
requested the Bankruptcy Court “bifurcate” the note and mortgage, declare the note void
and non-negotiable, and declare that Appellees have no interest in the property securing
the loan. Appellees filed a motion to dismiss the complaint and Appellant amended his
complaint adding additional allegations. Appellees moved to dismiss the Amended
Complaint asserting that Appellant did not state a cause of action.
On September 24, 2014, the Bankruptcy Court entered its Order on Pretrial
Conference Dismissing Adversary Proceeding (the “Dismissal Order”) finding that the

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Amended Complaint did not state a claim upon which relief may be granted, dismissing
the Amended Complaint and abstaining from hearing (and preventing the Appellant from
filing) a Second Amended Complaint unless and until (a) Appellant provided for payment
of the loan at issue in accordance with a confirmable Chapter 13 plan or (b) Appellees filed
a proof of claim on the loan. The Bankruptcy Court dismissed the Amended Complaint
without prejudice to the Appellant to file a complaint in state court or federal district court,
and denied all other pending motions as moot.
Appellant moved for clarification and reconsideration of the Dismissal Order. The
Bankruptcy Court held a hearing on the Motion, and again concluded that Appellant’s
claims regarding the validity of the note and mortgage involved state law issues that were
not properly before the Bankruptcy Court. The Appellees did not have a foreclosure
proceeding pending against Appellant, they did not file a proof of claim involving the loan,
and Appellant’s Chapter 13 plan did not deal with the note and mortgage. Therefore, the
Bankruptcy Court refused to adjudicate the claim because it did not involve property within
the bankruptcy estate.
The Appellant’s arguments in his “Statement of Issues” reiterate his arguments in
support of his contention that the note and mortgage are fraudulent and void. Appellant
argues that he is entitled to relief in this Court because the Bankruptcy Court: continued
the hearing on Appellant’s Motion for Sanctions and declared it moot once it dismissed his
Amended Complaint; denied Appellant an opportunity to challenge the Appellees’ proof
of claim (which was never filed), did not recognize a “category of dispute” under 28 U.S.C.

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§ 157(b)(1)(2)(A)(l)(K) 1 , did not impose Local Rule 9072-1(c) 2 , argued in favor of
Appellees when it stated “but you signed the Mortgage and Note,” and directed the
Appellant to return his claim to state court. Appellant ultimately argues that all of the
Bankruptcy Court’s errors resulted in a violation of his due process rights.
The Court agrees with the Bankruptcy Court’s conclusion that all of Appellant’s
purported claims in his adversary proceeding involved state law issues regarding the
enforceability of a note and mortgage that was not within the bankruptcy estate.
Therefore, the Amended Complaint was not properly before the Bankruptcy Court.
Further, in his Motion for Clarification and Reconsideration of the Dismissal Order,
Appellant did not raise any new issue of law or fact, and only attempted to re-litigate old
matters, raise arguments and present evidence that could have been raised prior to the
Dismissal Order. See Arthur, 500 F.3d at 1343. The Appellant’s arguments on appeal are
unavailing and this Court affirms the Bankruptcy Court’s Order Denying Plaintiff’s Motion
for Clarification and Reconsideration.

1

Appellant is apparently referring to 28 U.S.C. § 157(b)(2)(K) which states:

Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising
under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and
may enter appropriate orders and judgments, subject to review under section 158 of this title.
…
(2) Core proceedings include, but are not limited to—
…
(K) determinations of the validity, extent, or priority of liens
2
Appellant is apparently referring to U.S. Bankruptcy Court Middle District of Florida Local Rule 90721(b)(2) which states “[o]rders resulting from a hearing shall be submitted within three business days of the hearing.”
Appellant argues that when Appellees submitted untimely proposed orders, the Bankruptcy Court should have deemed
the respective motion or objection moot. However, Appellant refers to items on the Bankruptcy Court docket regarding
Appellees’ proof of service of orders already entered by the Bankruptcy Court governed by Local Rule 9072-1(a)(5),
not the submission of proposed orders.

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It is therefore ORDERED AND ADJUDGED that:
1.

The Clerk of Court is directed to re-open the case.

2.

Appellant’s Motion for Reconsideration (Dkt. #8) is GRANTED.

3.

The Order of the Bankruptcy Court is hereby AFFIRMED.

4.

The Clerk of Court is directed to close this case.

DONE and ORDERED in Tampa, Florida, this 25th day of March, 2015.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2014\14-cv-3187 reconsideration.docx

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