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.
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(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.

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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.

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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.
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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
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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

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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.

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