Mesa et al v. Kajaine Fund III, LLC et al
Filing
19
ORDER: Plaintiffs' Second Amended Complaint (Doc. # 18 ) is dismissed. The Mesas may file a third amended complaint by May 30, 2017. Failure to do so will result in dismissal of this action without further notice. The Mesas must properly serve Defendants in accordance with the requirements of the Federal Rules of Civil Procedure by June 30, 2017. Failure to do so may result in dismissal. Signed by Judge Virginia M. Hernandez Covington on 5/8/2017. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LILIA MESA and DAMIAN MESA,
Plaintiffs,
v.
Case No. 8:17-cv-450-T-33JSS
KAJAINE FUND III, LLC,
AVELO MORTGAGE, LLC,
SENDERRA FUNDING, LLC,
et al.,
Defendants.
______________________________/
ORDER
This matter comes before the Court upon sua sponte review
of pro se Plaintiffs Lilia Mesa and Damian Mesa’s Second
Amended Complaint, filed on May 2, 2017. (Doc. # 18). For the
reasons that follow, the Court dismisses the Second Amended
Complaint and grants the Mesas leave to file a third amended
complaint by May 30, 2017. The Court also extends the deadline
to effect service of process to June 30, 2017.
I.
Background
The Mesas initiated this action on February 23, 2017.
(Doc. # 1). The Court sua sponte dismissed the Complaint as
a shotgun complaint on February 28, 2017. (Doc. # 12). The
Mesas then filed their Amended Complaint on March 30, 2017.
1
(Doc. # 13). The Court again sua sponte dismissed the Amended
Complaint on April 3, 2017, in a detailed order. (Doc. # 17).
Now,
the
Mesas
have
filed
their
Second
Amended
Complaint. (Doc. # 18). In the Second Amended Complaint, the
Mesas
allege
that
the
nine
Defendants
violated
numerous
federal statutes including the Fair Debt Collection Practices
Act (FDCPA), 15 U.S.C. §§ 1692 et seq.; the Truth in Lending
Act (TILA), 15 U.S.C. §§ 1601 et seq.; the Real Estate
Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2601 et seq.;
and the Home Ownership and Equity Protection Act (HOEPA), 15
U.S.C. §§ 1639 et seq. The Mesas also bring claims under the
Florida Consumer Collection Practices Act and the Florida
Fair Lending Act, as well as a common law claim for negligent
misrepresentation.
Many
of
the
claims
are
brought
“in
recoupment.”
Essentially,
the
Mesas
allege
that
Defendants
—
including various loan servicers and mortgage holders, a law
firm, an attorney from that firm, and an unknown appraiser —
refused
to
answer
their
requests
for
information
while
servicing their mortgage, failed to report their debt as
disputed,
and
used
unfair
debt
collection
initiating foreclosure proceedings.
2
methods
while
II.
Discussion
Although the Second Amended Complaint is an improvement
over the Amended Complaint, it is still a shotgun complaint.
The Mesas shortened the Second Amended Complaint to sixtyfour pages, down from the eighty-two page Amended Complaint.
But there are still irrelevant allegations included in the
147 paragraph factual allegations section.
For example, the Second Amended Complaint still alleges
criminal conduct by the Defendants. The Court explained in
its Order dismissing the Amended Complaint that criminal
statutes rarely create private rights of action that can be
enforced by individuals. (Doc. # 17 at 5-6). That Order also
stated: “[a]s the Amended Complaint does not assert a claim
for criminal mortgage fraud, allegations that Defendants
victimized the Mesas by violating criminal mortgage fraud
statutes are unnecessary.” (Id. at 6). Yet the Second Amended
Complaint still asserts Defendants’ “acts are criminal in
nature and tantamount to mortgage fraud.” (Doc. # 18 at ¶
109). The Mesas also insist Defendant Senderra Funding LLC
has engaged in “criminal conduct.” (Id. at ¶ 107). In their
third amended complaint, the Mesas should avoid accusations
of criminal conduct irrelevant to their civil claims.
3
The
Second
Amended
Complaint
contains
numerous
allegations in the factual allegations and various counts
about the conduct of Joe Bola Owanikin of Unique Action
Mortgage Inc., who was the Mesas’ mortgage broker. (Doc. # 18
at ¶¶ 74-124; 183-269). But the Mesas still have not named
Owanikin as a defendant. The Mesas frequently allege Owanikin
and Senderra violated their rights together but it is unclear
what relationship existed between Owanikin and Senderra or
any
other
Defendant.
Although
they
state
Owanikin
“made
himself out to be representing Senderra” during the mortgage
lending process, the Mesas do not allege whether Owanikin was
actually working for Senderra. (Id. at ¶ 97). If the Mesas
wish to bring claims based on Owanikin’s conduct, the third
amended complaint should name Owanikin as a defendant or
clarify why any Defendant should be liable for Owanikin’s
actions.
There is also some confusion about the identities of the
Defendants. The Mesas list Avelo Mortgage LLC as a Defendant
separate from Senderra. But no counts are brought against
Avelo and the Second Amended Complaint states Avelo “does
business as Senderra Funding LLC.” (Doc. # 18 at ¶ 16). If
Avelo and Senderra are the same entity, they should not be
listed as separate Defendants in the third amended complaint.
4
Most importantly, the Mesas failed to heed the Court’s
direction
about
separating
claims
against
different
Defendants into separate counts. In its previous Order, the
Court explained that including multiple Defendants in one
count
without
clearly
identifying
the
allegedly
illegal
conduct of each Defendant is impermissible. (Doc. # 17 at 7).
Yet Counts 9, 10, and 11 are brought against Defendants
Kajaine Fund III, LLC, Anand Patel, FCI Lender Services Inc.,
Paul Krasker P.A., and James J. Doherty, Esq. (Doc. # 18 at
58-64). Nor do these counts even attempt to identify each
Defendant’s individual conduct, instead making conclusory
allegations such as “Defendant Kajaine Fund III, LLC, Anand
Patel, FCI Lender Services Inc., Paul Krasker P.A., and James
J. Doherty, Esq. violated the FDCPA, 15 U.S.C. § 1692g(a)(1),
by failing to accurately and fully state in communications to
the Plaintiffs ‘the amount of the debt.’” (Id. at ¶ 306).
Thus,
shotgun
the
Second
complaint
Amended
because
it
Complaint
“assert[s]
qualifies
multiple
as
a
claims
against multiple defendants without specifying which of the
defendants are responsible for which acts or omissions, or
which of the defendants the claim is brought against.” Weiland
v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1322-23
(11th Cir. 2015). In their third amended complaint, the Mesas
5
should
separate
different
counts
each
and
claim
against
clearly
each
identify
Defendant
each
into
Defendant’s
allegedly unlawful conduct. Additionally, the Mesas should
specify in each count’s heading which Defendant the count is
brought against.
Finally, the Court notes that the deadline to serve
Defendants is currently May 24, 2017. But no proof of service
documents have been filed with the Court and no Defendant has
appeared. Accordingly, the Court sua sponte extends the time
to serve Defendants to June 30, 2017. The Mesas must serve
Defendants in accordance with the Federal Rules of Civil
Procedure by that date and promptly file proof of service
with the Court. Failure to do so may result in dismissal.
Accordingly, it is
ORDERED, ADJUDGED and DECREED:
(1)
Plaintiffs’ Second Amended Complaint (Doc. # 18) is
DISMISSED.
(2)
The Mesas may file a third amended complaint by May 30,
2017. Failure to do so will result in dismissal of this
action without further notice.
(3)
The Mesas must properly serve Defendants in accordance
with the requirements of the Federal Rules of Civil
6
Procedure by June 30, 2017. Failure to do so may result
in dismissal.
DONE and ORDERED in Chambers in Tampa, Florida, this
8th day of May, 2017.
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?