Brown et al v. Florida Coastal Partners, LLC et al

Filing 49

OPINION AND ORDER denying 43 Motion to Stay. Signed by Magistrate Judge Terence P Kemp on 10/21/2014. (agm1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Ronald Brown, et al.,

:

Plaintiffs,

:

v.

:

Florida Coastal Partners, LLC,

Case No. 2:13-cv-1225

:
:

Magistrate Judge Kemp

Defendants.

OPINION AND ORDER
This case (in which the parties have consented to full
disposition by the Magistrate Judge) is before the Court on a
motion for stay or in the alternative dismissal of state court
case 08 CVE 12 1598 filed by plaintiffs Ronald Brown and Tonya
Brown.

(Doc. #43).

For the reasons set forth below, the Browns’

motion will be denied.
I.

Background

The Browns are property owners who are parties to a
foreclosure action filed in the Delaware County Court of Common
Pleas as Case No. 08-CVE-12-1598.

Because it is pertinent to the

instant motion (and despite having done so in previous Opinion
and Orders), the Court once again provides the background of that
state foreclosure action.

CitiGroup Global Markets Realty Corp.

(“CitiGroup”) filed the foreclosure case against the Browns in
December, 2008.

On September 8, 2010, CitiGroup filed a motion

to substitute Kondaur Capital Corporation (“Kondaur”) as the
plaintiff.

CitiGroup attached an assignment of mortgage to the

motion reflecting that CitiGroup had assigned the mortgage and
note to Kondaur.

Before the Court of Common Pleas ruled on the

motion to substitute, it became aware that Mr. Brown had filed a
petition in United States Bankruptcy Court.

Consequently,

pursuant to 11 U.S.C. §362, the Court of Common Pleas stayed the
case on October 11, 2010.

The Court of Common Pleas lifted the

stay and returned the case to its active docket on July 5, 2011.
Thereafter, on October 24, 2011, the Court of Common Pleas
granted the motion to substitute.

In doing so, the Court of

Common Pleas noted that after the action was filed, “Plaintiff
CitiGroup ... assigned the subject mortgage together with the
note to Kondaur ....”

Carlisle acted as counsel to both

CitiGroup and Kondaur.
Kondaur and Florida Coastal Partners, LLC (“Florida
Coastal”) subsequently filed a joint motion to substitute party
plaintiff and counsel.

That motion, filed on August 20, 2013,

reflected that the note and mortgage were transferred by Kondaur
to Florida Coastal by assignment of mortgage dated December 11,
2011.

The motion also sought to replace Carlisle and substitute

Charles R. Griffith as the attorney for Florida Coastal.

The

Court of Common Pleas granted the joint motion to substitute
party plaintiff and counsel on September 25, 2013.
On December 13, 2013, while the foreclosure action was still
pending in the Court of Common Pleas, the Browns brought this
action pursuant to this Court’s federal question jurisdiction,
alleging that Florida Coastal and John Doe, Individuals 1-50
violated the Fair Debt Collection Practices Act, 15 U.S.C. §§1692
et seq.

The Browns also alleged fraud in connection with the

mortgage on their property and sought to quiet the title to the
property.

On January 3, 2014, the Browns filed an amended

complaint adding Mr. Griffith as a defendant and adding, among
other allegations, a claim for slander of title.

Finally, on May

23, 2014, with leave of Court, the Browns filed a “3rd amended
complaint” against Florida Coastal, Mr. Griffith, Carlisle, and
John Doe, Individuals 1-50.

Count one of the 3rd amended

complaint alleges that the defendants violated the FDCPA.
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More

specifically, the Browns allege that Carlisle falsely represented
in the Common Pleas Court action that its clients were proper
party plaintiffs (specifically, holders of the loan) when, in
fact, they were debt collectors.

The Browns allege that

Carlisle’s false and misleading representations resulted in
judgments and sanctions against them in the foreclosure action.
Similarly, the Browns allege that Mr. Griffith falsely
represented that Florida Coastal was a proper party plaintiff in
that case when, in fact, it was also a debt collector.

The

Browns further allege that Florida Coastal and Mr. Griffith
misrepresented the character, amount, and legal status of the
mortgage and note in violation of the FDCPA.

The Browns also set

forth state law claims for foreclosure fraud (count two), slander
of title (count three), slander of credit (count four), emotional
distress (count five), and quiet title (count six).
On June 23, 2014, Carlisle filed a motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6) and 9(b).

On July 21, 2014,

the Browns filed a motion for Rule 11 violation and injunction of
that state foreclosure case.

The Court resolved both motions in

an opinion and order issued on October 10, 2014.

In that

decision, the Court granted in part and denied in part Carlisle’s
motion to dismiss.

More specifically, the Court dismissed the

Browns’ claims against Carlisle for the intentional infliction of
emotional distress and quiet title, but it denied the remainder
of Carlisle’s motion.

In addition, the Court denied the Browns’

motion for Rule 11 violation and injunction of the state
foreclosure case.
One day after they filed the complaint in this case, the
Browns removed the state court foreclosure action from the
Delaware County Court of Common Pleas.
cv-1232.

It became Case No. 2:13-

On September 24, 2014, Judge Economus of this Court

issued an Opinion and Order adopting a Report and Recommendation
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which determined that the Court lacked subject matter
jurisdiction over the dispute, and he remanded the case to the
Delaware County Court of Common Pleas.
reconsider that order.

The Browns have moved to

To date, it does not appear that a final

judgment has been entered in the foreclosure action.
II. Discussion
Having set forth the relevant procedural history, the Court
now turns to the pending motion to stay or in the alternative
dismissal of state court case 08 CVE 12 1598 filed by the Browns
on September 15, 2014.

(Doc. 43).

In the motion, the Browns

once again argue that Carlisle and Florida Coastal violated the
FDCPA in the state foreclosure action because they falsely
represented that their clients were proper party plaintiffs
(specifically, holders of mortgage note and loan) when, in fact,
they were debt collectors.

The Browns allege that Florida

Coastal also made this misrepresentation in bankruptcy court, and
it pursued and obtained “money and personal judgments” in the
state court case “when the Relief from Stay order of the
Bankruptcy Court prohibited ... Florida Coastal from pursuing and
obtaining such judgments.”

Id. at 6.

Carlisle did not file a response to the Browns’ motion.

On

September 30, 2014, Mr. Griffith and Florida Coastal filed an
opposition to the motion.

(Doc. 44).

In their opposition, Mr.

Griffith and Florida Coastal argue that “[t]he Rooker-Feldman
doctrine bars the Brown’s [sic] from the relief requested in
their Motion in federal court.”

Id. at 2.

According to Mr.

Griffith and Florida Coastal, “[t]his doctrine clearly applies
here because the Browns are attempting to use the district court
as an appellate court of the state courts [sic] decision after
judgment by the state court.”

Id.

Mr. Griffith and Florida

Coastal also maintain that the plaintiffs in the foreclosure
proceeding were proper, and that those plaintiffs did not make
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any false representations. Mr. Griffith and Florida Coastal
further argue that state court decisions preclude the Browns from
making the arguments set forth in their motion, and that Florida
Coastal is not seeking to obtain a monetary judgment against the
Browns.
On October 7, 2014, the Browns filed a reply in support of
their motion. (Doc. 45). The Browns again argue that Florida
Coastal was not a proper plaintiff and that it made
misrepresentations about its status as a proper party in the
state court and in the bankruptcy court. The Browns also
maintain that Florida Coastal is seeking a monetary judgment
against them in state court. Further, the Browns argue that the
Rooker-Feldman doctrine “does not apply when a State Court
judgment has been entered in violation of the discharge
injunction.” Id. at 2.
Previously, in an Opinion and Order issued on October 10,
2014, this Court considered and denied a motion for an injunction
of the state court case filed by the Browns. (Doc. 46). In
doing so, this Court relied upon the federal Anti-Injunction Act,
28 U.S.C. §2283, which provides that “[a] court of the United
States may not grant an injunction to stay proceedings in a State
court except as expressly authorized by Act of Congress, or where
necessary in aid of its jurisdiction, or to protect or effectuate
its judgments.”

This Court noted that the FDCPA does not appear

to authorize such injunctions, see, e.g., Piper v. Portnoff Law
Associates, 262 F.Supp.2d 520, 529 (E.D. Pa. 2003)(“the FDCPA
does not expressly authorize enjoining state court proceedings”),
and determined that an injunction against the continuation of the
foreclosure case is unnecessary in order for this Court to
exercise jurisdiction over the FDCPA claims or to effectuate its
judgments, since none have yet been rendered.
Here, the Browns fail to provide this Court with any legal
basis to reconsider its prior order, and they again fail to set

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forth any legal basis for the issuance of an injunction of the
state court case. For these reasons, the Browns’ motion to stay
or in the alternative dismissal of state court case 08 CVE 12
1598 (Doc. 43) will be denied.
III. Conclusion
For the reasons set forth above, the Browns’ motion to stay
or in the alternative dismissal of state court case 08 CVE 12
1598 (Doc. 43) is denied.
/s/ Terence P. Kemp
United States Magistrate Judge

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