Paz v. Bank of America, N.A.

Filing 60

ORDER: Defendant Bank of America, N.A.'s Motion for Summary Judgment (Doc. # 43 ) is GRANTED. The Clerk is directed to enter a judgment of dismissal without prejudice because the Court lacks jurisdiction under the Rooker-Feldman doctrine. After entering judgment, the Clerk is directed to terminate all pending deadlines and motions and, thereafter, CLOSE the case. Signed by Judge Virginia M. Hernandez Covington on 10/17/2018. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RAFAEL PAZ,
Plaintiff,
v.

Case No. 8:17-cv-2622-T-33AEP

BANK OF AMERICA, N.A.,
Defendant.
_____________________________/
ORDER
This matter comes before the Court upon consideration of
Defendant Bank of America, N.A.’s Motion for Summary Judgment
(Doc. # 43), filed on August 31, 2018. Plaintiff Rafael Paz
responded on October 4, 2018, (Doc. # 54), and Bank of America
has replied, (Doc. # 58). For the reasons that follow, the
Motion is granted, and the case is dismissed without prejudice
for lack of subject matter jurisdiction.
I.

Background
On June 27, 2017, over seventy Plaintiffs sued Bank of

America in one action in the Middle District of Florida.
Torres et al. v. Bank of Am., N.A., No. 8:17-cv-1534-T-26TBM,
(M.D. Fla. June 27, 2017)(Doc. # 1). Plaintiff Paz was one of
the

many

Plaintiffs

in

the

original

lawsuit.

Plaintiffs

alleged Bank of America (“BOA”) committed common law fraud in

1

its

administration

Program

(“HAMP”).

government

in

of
HAMP

March

of

the

Home

was

Affordable

implemented

2009,

to

help

by

Modification
the

federal

homeowners

facing

foreclosure. (Doc. # 25 at ¶ 9). BOA entered into a Servicer
Participation Agreement with the federal government in which
BOA was required to use reasonable efforts to effectuate any
modification of a mortgage loan under HAMP. (Id. at ¶ 10).
The federal government, in exchange for BOA’s participation
in HAMP, agreed to compensate BOA for part of the loss
attributable to each modification. (Id. at ¶ 11). Plaintiffs’
claims were all based on their attempts to secure loan
modifications with BOA under HAMP.
In the original lawsuit, BOA filed a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6), (Torres Doc.
# 12), and Plaintiffs amended their complaint, (Torres Doc.
# 16). Following BOA’s second motion to dismiss, (Torres Doc.
# 17), the presiding judge severed the claims and required
Plaintiffs to sue separately, (Torres Doc. # 19). Plaintiff
Paz filed a separate complaint on November 3, 2017. (Doc. #
1). Three months later, on March 7, 2018, Plaintiff filed an
Amended Complaint. (Doc. # 25).
The

Amended

Complaint

alleges

BOA

committed

four

fraudulent acts: (1) falsely telling Plaintiff that “he can’t
2

be

current

on

his

mortgage

to

qualify

for

a

HAMP

loan

modification” and failing to tell Plaintiff that he could
qualify for HAMP if default was reasonably foreseeable (“HAMP
Eligibility
requested

Claim”);
supporting

(2)

falsely

financial

telling

Plaintiff

the

documents

Plaintiff

had

submitted to BOA were missing (“Supporting Documents Claim”);
(3) falsely telling Plaintiff that he was approved for a HAMP
modification and needed to start making trial payments (“HAMP
Approval
inspection

Claim”);
fees

and

charged

(4)
to

fraudulently
Plaintiff’s

omitting

account

would

how
be

applied (“Inspection Fee Claim”). (Id. at ¶¶ 38, 41, 48, 55).
BOA moved to dismiss (Doc. # 34), and the Court granted
that motion in part and denied it in part, (Doc. # 38). The
Court dismissed the Supporting Documents Claim, HAMP Approval
Claim, and Inspection Fee Claim with prejudice, but allowed
the HAMP Eligibility Claim to survive. (Id.).
Regarding the HAMP Eligibility Claim, Plaintiff alleges
that on October 12, 2010, a BOA representative told Plaintiff
that a modification requires a default. (Doc. # 25 at ¶ 38).
According

to

Plaintiff,

a

modification

in

fact

requires

either a default or that default be “reasonably foreseeable.”
(Id.). Allegedly, BOA’s misrepresentation was “specifically
designed by BOA to set Plaintiff up for foreclosure.” (Id. at
3

¶ 39). Plaintiff allegedly relied on BOA’s misrepresentation,
stopped paying his mortgage, and “fell into default status.”
(Id. at ¶ 40). He ascribes the “the loss of [his] home and
the equity in that home” to BOA’s alleged misrepresentation.
(Id. at ¶¶ 40, 53).
BOA moved for summary judgment on August 31, 2018,
arguing, among other things, that Plaintiff’s claim is barred
by the Rooker-Feldman doctrine. (Doc. # 43). Plaintiff has
responded, (Doc. # 54), and BOA has replied, (Doc. # 58). The
Motion is now ripe for review.
II.

Discussion
Bank of America contends that Plaintiff is trying to

“‘effectively nullify’ the state court foreclosure judgment”
in violation of the Rooker-Feldman doctrine. (Doc. # 43 at
17). As other judges in this District have determined in
nearly identical cases,1 the Court finds that Plaintiff’s
claim is barred by the Rooker-Feldman doctrine.
Carmenates v. Bank of America, N.A., 8:17-cv-2635-T-23JSS
(Doc. # 50); Perez v. Bank of America, N.A., 8:17-cv-2623-T23JSS (Doc. # 50); Acosta v. Bank of America, N.A., 8:17-cv2592-T-23AAS (Doc. # 55); Santos v. Bank of America, N.A.,
8:17-cv-2588-T-23MAP (Doc. # 47); Rodriguez v. Bank of
America, N.A., 8:17-cv-2583-T-23TGW (Doc. # 51); Peralta v.
Bank of America, N.A., 8:17-cv-2580-T-23MAP (Doc. # 56);
Mosquea v. Bank of America, N.A., 8:17-cv-2551-T-23TGW (Doc.
# 46); Rostgaard v. Bank of America, N.A., 8:17-cv-2538-T23CPT (Doc. # 57); Diaz v. Bank of America, N.A., 8:17-cv1

4

“Under the Rooker–Feldman doctrine, a district court
lacks jurisdiction over claims ‘brought by state-court losers
complaining

of

injuries

caused

by

state-court

judgments

rendered before the district court proceedings commenced and
inviting

district

court

review

and

rejection

of

those

judgments.’” Valentine v. BAC Home Loans Servicing, L.P., 635
F. App’x 753, 756 (11th Cir. 2015)(quoting Exxon Mobil Corp.
v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). “The
doctrine

extends

to

claims

involving

issues

that

are

‘inextricably intertwined with the state court judgment,’
i.e., claims that would ‘effectively nullify’ the state court
judgment or that would ‘succee[d] only to the extent that the
state court wrongly decided the issues.’” Id. at 756–57

2537-T-23MAP (Doc. # 51); Salazar v. Bank of America, N.A.,
8:17-cv-2535-T-23AEP, (Doc. # 50); Blanco v. Bank of America,
N.A., 8:17-cv-2593-T-23JSS (Doc. # 48); Moncada v. Bank of
America, N.A., 8:17-cv-2625-T-23AEP (Doc. # 45); Ruiz v. Bank
of America, N.A., 8:17-cv-2586-T-23TGW (Doc. # 42); Zalazar
v. Bank of America, N.A., 8:17-cv-2603-T-23CPT (Doc. # 48);
Espinel v. Bank of America, N.A., 8:17-cv-2628-T-23JSS (Doc.
# 44); Garcia v. Bank of America, N.A., 8:17-cv-2602-T-23AAS
(Doc. # 46); Gonzalez v. Bank of America, N.A., 5:17-cv-519T-23PRL (Doc. # 44); Varela-Pietri v. Bank of Am., N.A., 8:17cv-2534-T-23TGW (Doc. # 50); Colon v. Bank of Am., N.A., 8:17cv-2548-T-26AAS (Doc. # 30); Clavelo v. Bank of Am., N.A.,
8:17-cv-2644-T-26TGW (Doc. # 29); Guevara v. Bank of Am.,
N.A., 8:17-cv-2550-T-24JSS (Doc. # 36); Rosselini v. Bank of
America, N.A., 8:17-cv-2584-T-24CPT (Doc. # 29).
5

(quoting Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir.
2009)).
“In deciding this relationship, the court focuses on the
federal claim’s relationship to the issues involved in the
state court proceeding, instead of on the type of relief
sought by the plaintiff.” Velardo v. Fremont Inv. & Loan, 298
F. App’x 890, 892 (11th Cir. 2008). “Notably, the Eleventh
Circuit and many district courts have applied the RookerFeldman doctrine to dismiss actions where a plaintiff was
seeking, in reality, to challenge state-court foreclosure
judgments.” Goldman v. HSBC Bank USA, No. 9:15-CV-80956, 2015
WL 5269809, at *1 (S.D. Fla. Sept. 10, 2015).
Plaintiff argues that Nivia v. Nation Star Mortgage,
LLC, 620 F. App’x 822 (11th Cir. 2015), establishes that the
Rooker-Feldman doctrine is inapplicable to this case. (Doc.
# 54 at 8-9). Plaintiff cites Nivia for the proposition that
“claims under . . . HAMP are not barred by the Rooker-Feldman
doctrine.” (Id. at 8).
On the contrary, Nivia supports the application of the
Rooker-Feldman

doctrine

to

this

fraud

case.

While

the

Eleventh Circuit held that the HAMP claim was not barred by
the Rooker-Feldman doctrine, that was largely due to the
timeline of that case. In Nivia, the plaintiff applied for a
6

HAMP modification after the state-court foreclosure judgment
was

entered.

As

the

Eleventh

Circuit

explained,

“[t]he

homeowners alleged only that the lenders failed to respond
adequately

to

their

September

2012

request

for

a

loan

modification, which could not have been at issue in the
foreclosure proceeding that concluded in December 2011.”
Nivia, 620 F. App’x at 825. Thus, Nivia does not stand for
the proposition that any claims related to the issuance of
HAMP

modifications

are

not

barred

by

the

Rooker-Feldman

doctrine.
And, importantly, the Nivia court held that the claim
under Florida’s Deceptive and Unfair Trade Practices Act
(FDUTPA) was barred. For the FDUTPA claim, the plaintiff
homeowners

alleged

the

defendant

lender

“failed

to

help

[them] . . . modify their loan[,] denying them any possibility
to

cure

their

default,

which

constitute[d]

a

deceptive

practice to the public in . . . light of the lenders’ public
representations

that

loan

modifications

were

generally

available.” Id. (internal quotation marks omitted).
The Eleventh Circuit “construe[d] this allegation to
extend beyond the lenders’ denial of the September 2012 loan
modification

request

and

to

include

conduct

before

the

foreclosure judgment.” Id. So, the Eleventh Circuit concluded
7

that, “[i]n effect, the homeowners’ claim amounts to an
equitable defense to foreclosure that they failed to raise
before the state court,” and that “success on the merits of
the FDUTPA claim would require a determination that the state
court entered the forfeiture judgment ‘wrongly,’ i.e., that
the judgment was legally invalid.” Id.
Another Eleventh Circuit case supports that the RookerFeldman doctrine bars Plaintiff’s claim. In the district
court, a plaintiff mortgagor asserted a RICO claim against
the defendant bank that had earlier procured a foreclosure
judgment against the mortgagor in state court. Figueroa v.
Merscorp, Inc., 766 F. Supp. 2d 1305, 1308-25 (S.D. Fla.
2011), aff’d, 477 F. App’x 558 (11th Cir. 2012). The mortgagor
sought “damages arising out of the loss of his home” and
alleged that the bank had committed mail and wire fraud in
its prosecution of the state foreclosure action as part of a
“scheme” to wrongfully obtain foreclosure judgments. Id. at
1311-23.
The district court dismissed the RICO claim under the
Rooker-Feldman doctrine because that claim was “inextricably
intertwined” with the foreclosure judgment. Id. at 1323-24.
The

Eleventh

Circuit

affirmed,

writing:

“Figueroa

was

a

state-court loser in his state court foreclosure proceeding.
8

The

state

court

intertwined

with

judgment
the

formed

injury

the

complained

basis
of

of

in

or

was

Figueroa’s

instant compliant: that ‘he lost his one-half interest in his
property

and

home’

because

of

an

improper

foreclosure

proceeding.” Figueroa, 477 F. App’x at 560.
And, as the Figueroa decision suggested, the type of
damages sought in a subsequent federal court action are
significant to the Rooker-Feldman analysis. A district court
in the Southern District of Florida explained it this way:
Plaintiffs essentially seek damages that stemmed
from the loss of their home. The only way Plaintiffs
could have been damaged was if the loss of their
home was wrongful. By entering judgment in favor of
foreclosure, the state court has determined that
foreclosure was proper. Were judgment to be entered
in this case in favor of Plaintiffs, it would
necessarily follow that the state court foreclosure
was in error and, as a result, this Court cannot
grant Plaintiffs their requested relief without
disturbing the Florida foreclosure judgment.
Goldman, 2015 WL 5269809, at *2. Indeed, “[t]he only way
Plaintiff . . . could have been ‘damaged’ by the loss or
‘illegal

divestment’

of

[his]

home[]

is

if

[the]

foreclosure[] [was] wrongful.” Figueroa, 766 F. Supp. 2d at
1323.
Here,

like

in

Figueroa,

Plaintiff

alleges

a

scheme

designed to facilitate BOA acquiring a foreclosure judgment.
(Doc. # 25 at ¶ 39). And that scheme, consisting of a
9

misrepresentation concerning HAMP eligibility requirements,
caused Plaintiff to fall into default and allowed BOA to then
obtain a foreclosure judgment. (Id. at ¶¶ 38-40). As a result
of that misrepresentation and the subsequent foreclosure
judgment, Plaintiff suffered “the loss of [his] home and the
equity in that home” — a loss that only occurred once the
foreclosure judgment was entered. (Id. at ¶¶ 40, 53). Because
the state court found that the foreclosure leading to the
loss of Plaintiff’s home was proper, granting damages for the
loss of Plaintiff’s home suggests entry of the foreclosure
judgment was wrongful.
“In sum, the fraud claim in this action appears a
circuitous but unmistakable attempt to impugn the validity of
the foreclosure judgment.” Varela-Pietri v. Bank of Am.,
N.A., No. 8:17-cv-2534-T-23TGW, 2018 WL 4208002, at *3 (M.D.
Fla. Sept. 4, 2018). The Court would reach the same conclusion
even if Plaintiff was unaware of the fraud at the time of the
foreclosure. See Rosselini v. Bank of Am., N.A., 8:17-cv2584-T-24CPT (M.D. Fla. Oct. 4, 2018)(Doc. # 29 at 4)(“The
issues of the fraud in this case could have been raised in
the

state

court

foreclosure

before

final

judgment

was

entered. It would not change the result that Plaintiff alleges
he did not know or could not have reasonably discovered the
10

facts he now knows until he retained his attorney in this
case.”). Therefore, the fraud claim is barred by the RookerFeldman doctrine and the case is dismissed without prejudice
for lack of subject matter jurisdiction. See Varela-Pietri,
2018 WL 4208002, at *4 n.6 (“Because of the disposition of
the Rooker-Feldman argument (a subject-matter jurisdiction
defect), the dismissal is without prejudice.”).
Accordingly, it is
ORDERED, ADJUDGED and DECREED:
(1)

Defendant Bank of America, N.A.’s Motion for Summary
Judgment (Doc. # 43) is GRANTED.

(2)

The Clerk is directed to enter a judgment of dismissal
without prejudice because the Court lacks jurisdiction
under the Rooker-Feldman doctrine.

(3)

After

entering

terminate

all

judgment,
pending

the

Clerk

deadlines

is

and

directed
motions

to

and,

thereafter, CLOSE the case.
DONE and ORDERED in Chambers in Tampa, Florida, this
17th day of October, 2018.

11