Moncada et al v. Bank of America, N.A.

Filing 43

ORDER denying without prejudice 29 --motion to extend time; denying without prejudice 31 --motion for extension of time to complete discovery; denying as moot 39 --motion for extension of time to respond; and denying 41 --motion to defer the summary judgment motion and to amend the complaint. No later than August 2, 2018, the plaintiffs must respond to Bank of America's motion for summary judgment. Signed by Judge Steven D. Merryday on 7/27/2018. (GSO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JOSE MONCADA and
EVELYN MOLINA,
Plaintiffs,
v.

CASE NO. 8:17-cv-2625-T-23AEP

BANK OF AMERICA, N.A.,
Defendant.
____________________________________/
ORDER
The plaintiffs sue (Doc. 1) Bank of America for common law fraud and allege
that Bank of America misrepresented the eligibility requirement for a mortgage
modification.1 Relying on the misrepresentation, the plaintiffs allegedly stopped
paying their mortgage and “fell into default status” (Doc. 1 at ¶ 39), which resulted
in the bank’s winning a foreclosure judgment in state court. A month after the close
of discovery in this action, Bank of America moved (Doc. 33) for summary judgment
and argued, among other things, that the default resulted not from the bank’s alleged
misrepresentation but from one plaintiff’s loss of employment, that RookerFeldman bars the fraud claim, and that the fraud claim constitutes a compulsory
counterclaim that the plaintiffs must have asserted but failed to assert in the
state-court foreclosure action.

1

A February 1, 2018 order (Doc. 14) dismisses fraud claims based on three other
misrepresentations.

After receiving two extensions of the time within which to respond to Bank of
America’s motion for summary judgment, the plaintiffs move (Doc. 41) under
Rule 56(d), Federal Rules of Civil Procedure, to defer resolution of Bank of
America’s motion for summary judgment. Attempting to justify the requested
deferral, the plaintiffs cite a motion to compel in a different action and state that they
“joined” the motion to compel. (Doc. 41 at 2) But no Federal Rule of Civil
Procedure or Local Rule permits “joining” the motion of another party in a different
action (or even in the same action). In any event, the clerk terminated the motion to
compel in the other action after an order dismissed that action for lack of
subject-matter jurisdiction and for failure to state a claim.2 Also, the plaintiffs argue
(Doc. 41 at 3) that Bank of America attached to the summary judgment motion
several documents not produced in discovery. Bank of America responds (Doc. 42)
persuasively that each document is a public record (for example, the mortgage
recorded in Polk County and the foreclosure judgment) or a document produced by
the plaintiffs. Because the plaintiffs provide no cogent reason for deferring the
resolution of Bank of America’s motion for summary judgment, the request (Doc. 41
at 1–3) to defer the summary judgment motion is DENIED.
Also, more than five months after a February 5, 2018 order (Doc. 15)
cautioned the plaintiffs that a motion for leave to amend the complaint “is distinctly
disfavored after the issuance of this order,” the plaintiffs move (Doc. 41 at 3) for

2

Doc. 55 in Acosta v. Bank of America, N.A., 8:17-cv-2592 (M.D. Fla. July 24, 2018).

-2-

leave to amend the complaint. The plaintiffs state that the amendment will “add
facts recently discovered from [Bank of America’s] production of documents,” but
the plaintiffs offer no explanation what facts they intends to add, and the exhibit
cited by the plaintiffs similarly fails to explain the contemplated amendment. The
request (Doc. 41 at 3) for leave to amend the complaint is DENIED. See Long v. Satz,
181 F.3d 1275, 1279–80 (11th Cir. 1999) (affirming the denial of leave to amend the
complaint because the plaintiff failed to explain the purpose of an amendment). No
later than AUGUST 2, 2018, the plaintiffs must respond to Bank of America’s
June 18, 2018 motion for summary judgment. No further extension is available
absent an extraordinary circumstance. The plaintiffs’ motion (Doc. 39) to extend
until July 31, 2018 the time within which to respond to the motion for summary
judgment is DENIED AS MOOT. The motions (Docs. 29 and 31) to extend
discovery and to extend the time to move for summary judgment are DENIED
WITHOUT PREJUDICE to renewal after the disposition of Bank of America’s
pending motion for summary judgment (if an order denies summary judgment).
ORDERED in Tampa, Florida, on July 27, 2018.

-3-