Brown et al v. Florida Coastal Partners, LLC et al
ORDER granting 76 Defendants' Motion for Summary Judgment. Signed by Magistrate Judge Terence P. Kemp on 1/9/2017. (er)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Ronald Brown, et al.,
Florida Coastal Partners, LLC,
Case No. 2:13-cv-1225
Magistrate Judge Kemp
OPINION AND ORDER
This case was brought by Ronald and Tonya Brown in an effort
to stop a foreclosure action which had been brought in the
Delaware County, Ohio Court of Common Pleas. This matter is now
before the Court on a motion for summary judgment filed on behalf
of defendants Florida Coastal Partners, LLC (“Florida Coastal”)
and Charles Griffith, its statutory agent. The Browns have
neither filed a response nor requested additional time to do so.
Thus, the motion is ripe for decision.
For the following
reasons, the motion for summary judgment (Doc. 76) will be
Although it has done so previously, for ease of reference,
the Court will summarize the relevant facts.
The Browns are
property owners who were parties to a foreclosure action filed in
the Delaware County Court of Common Pleas as Case No. 08-CVE-121598.
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
On May 23, 2014, with leave of Court, the Browns
filed a third amended complaint against Florida Coastal, Mr.
Griffith, the law firm of Carlisle, McNellie, Rini, Kramer &
Ulrich Co. LPA (“Carlisle”), and John Doe, Individuals 1-50.
Count one of the third amended complaint alleges that the
defendants violated the Fair Debt Collections Practices Act
The Browns alleged 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.
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).
10, 2014, the Court granted in part a motion to dismiss by
Carlisle, dismissing the Browns’ claims against Carlisle for the
intentional infliction of emotional distress and to quiet title.
On February 20, 2015, Tonya Brown filed a Chapter 11
bankruptcy petition in the United States Bankruptcy Court for the
Southern District of Ohio, Case No. 2:15-bk-50925.
27, 2015, Mr. Griffith and Florida Coastal filed a notice of
bankruptcy and suggestion of stay.
In examining the
bankruptcy, the Court noted that the case was converted to a
Chapter 7 bankruptcy.
In an Opinion and Order issued on July 10,
2015, the Court examined the impact of Ms. Brown’s bankruptcy on
this litigation. The Court determined that Ms. Brown lacked
standing to pursue her pre-petition claims because those claims
were now considered to be “property of the estate.”
(Doc. 65 at
In other words, because the United States Trustee (“UST”)
was the real party in interest to Ms. Brown’s claims, the Court
analyzed motions before it only to the extent that they pertained
to Mr. Brown.
Among other rulings, the Court granted Carlisle’s
motion for summary judgment as it applied to Mr. Brown’s claims,
but it withheld judgment as to Ms. Brown’s claims because those
claims belonged to the UST.
On August 7, 2015, Carlisle filed a notice informing this
Court that the UST abandoned all claims of Tonya Brown against
In light of the UST’s abandonment of Ms.
Brown’s claims against Carlisle, Carlisle asked the Court to
grant it summary judgment on Ms. Brown’s claims.
In an Opinion
and Order dated February 9, 2016, the Court granted Carlisle’s
motion for summary judgment as to all of Ms. Brown’s claims.
July 18, 2016, the UST also filed an abandonment of all of Ms.
Brown’s claims against Florida Coastal.
The only remaining
claims in this matter are claims one through four against
defendants Florida Coastal and Mr. Griffith, who now seek summary
II. Legal Standard
Summary judgment is not a substitute for a trial when facts
material to the Court’s ultimate resolution of the case are in
It may be rendered only when appropriate evidentiary
materials, as described in Fed. R. Civ. P. 56(c), demonstrate the
absence of a material factual dispute and the moving party is
entitled to judgment as a matter of law.
Broad. Sys., Inc., 368 U.S. 464 (1962).
Poller v. Columbia
The moving party bears
the burden of demonstrating that no material facts are in
dispute, and the evidence submitted must be viewed in the light
most favorable to the nonmoving party.
Co., 398 U.S. 144 (1970).
Adickes v. S.H. Kress &
“[I]f the evidence is insufficient to
reasonably support a jury verdict in favor of the nonmoving
party, the motion for summary judgment will be granted.”
Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir.
Additionally, the Court must draw all
reasonable inferences from that evidence in favor of the
United States v. Diebold, Inc., 369 U.S. 654
The nonmoving party does have the burden, however, after
completion of sufficient discovery, to submit evidence in support
of any material element of a claim or defense on which that party
would bear the burden of proof at trial, even if the moving party
has not submitted evidence to negate the existence of that
See Celotex Corp. v. Catrett, 477 U.S. 317
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
course, since “a party seeking summary judgment ... bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a genuine
issue of material fact,” Celotex, 477 U.S. at 323, the responding
party is only required to respond to those issues clearly
identified by the moving party as being subject to the motion.
The fact that a motion for summary judgment is unopposed
does not lessen the burden on the moving party or the court.
Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 410 (6th Cir.
1992) (citation omitted). “When a non-moving party fails to
respond, therefore, the district court must, at a minimum,
examine the moving party's motion for summary judgment to ensure
that it has discharged its initial burden.” Miller v. Shore Fin.
Services, Inc., 141 F. App'x 417, 419 (6th Cir. 2005) (citation
omitted). Courts are not required to “comb the record from the
partisan perspective of an advocate for the non-moving party,”
but rather courts “may rely on the moving party's unrebutted
recitation of the evidence, or pertinent portions thereof, in
reaching a conclusion that certain evidence and inferences from
evidence demonstrate facts which are ‘uncontroverted.’” Guarino,
980 F.2d at 410. It is with these standards in mind that the
instant motion must be decided.
On October 28, 2016, defendants Florida Coastal and Mr.
Griffith (hereinafter “Defendants”) filed a motion for summary
judgment, arguing that the claims against them are barred by the
doctrine of res judicata because they have already been decided
by the state court in the November 12, 2014 final judgment
rendered in case number 08-CVE-12-1598 (The State Foreclosure
Action).” (Doc. 76-1). There is both a federal law standard and a
state law standard for issue preclusion, also known as collateral
estoppel, and these standards share several common elements.
Under the federal standard, the party claiming preclusion must
(1) the precise issue raised in the present case must
have been raised and actually litigated in the prior
proceeding; (2) determination of the issue must have been
necessary to the outcome of the prior proceeding; (3) the
prior proceeding must have resulted in a final judgment
on the merits; and (4) the party against whom estoppel is
sought must have had a full and fair opportunity to
litigate the issue in the prior proceeding.
Kosinski v. Commissioner of Internal Revenue, 541 F.3d 671, 675
(6th Cir. 2008), quoting United States v. Cinemark USA, Inc., 348
F.3d 569, 583 (6th Cir. 2003).
Similarly, issue preclusion under
the Ohio standard applies if:
1) the fact or issue was actually litigated in the prior
action; 2) the court actually determined the fact or
issue in question; 3) the party against whom issue
preclusion is asserted was a party, or in privity with a
party, to the prior action.
Osborn v. Knights of Columbus, 401 F. Supp.2d 830, 832-33 (N.D.
The third element of issue preclusion under Ohio law
is required only if “a party seeks to use issue preclusion
offensively” in the litigation.
Id., citing Chambers v. Ohio
Dep’t of Human Services, 145 F.3d 793, 801 n.14 (6th Cir. 1998).
Under both standards, the Defendants are able to establish
that issue preclusion bars the Browns’ claims against them in
The Browns’ FDCPA claim (count one) raises issues as
to whether the Defendants’s clients were proper party plaintiffs,
as opposed to debt collectors, and whether the Defendants made
misleading representations with respect to the mortgage and note.
In the fraud claim (count two), the Browns allege that the
Defendants fraudulently back-dated an assignment of the mortgage
and note, and that they fraudulently brought the foreclosure
action on behalf of debt collectors.
The Browns’ slander of
title claim (count three) challenges the validity of the mortgage
Finally, in their slander of credit claim (count
four), the Browns raise an issue concerning allegedly misleading
and deceptive debt collection practices.
As set forth by the
Defendants, all of these issues were raised and resolved in the
judgment decree and order of foreclosure issued by the Delaware
County Court of Common Pleas on November 12, 2014.
In the judgment decree and order of foreclosure, the
findings of the Court of Common Pleas included the following:
Florida Coastal is the holder of the note and
mortgage and is the real party in interest;
Florida Coastal has performed all of the conditions
precedent to be performed by it prior to
acceleration of the mortgage and initiation of
foreclosure proceedings and further has stated a
claim upon which relief can be granted;
The accounting of the amount due to Florida Coastal
was accurate and the interest rate as stated in the
foreclosure complaint was proper;
The Browns executed and delivered to Ameriquest
Mortgage Company their certain mortgage deed, as
described in the foreclosure complaint and on the
premises therein described and duly recorded. Said
mortgage was subsequently assigned various times,
most recently to Florida Coastal on December 21,
2011, and duly recorded as required.
Florida Coastal did not violate the Truth in
Lending Act, and provided all proper terms of the
mortgage, did not breach the mortgage contract or
any contract, did not commit fraud, and did not
violate any federal laws or regulation with respect
to the mortgage;
Florida Coastal provided clear and accurate
disclosure, did not engage in unfair methods of
commerce, and did not make any false representation
orally or in writing to the Browns’
Florida Coastal did not engage in willful or wanton
misconduct in its handling of the loan, and did not
misrepresent any material facts regarding the loan
Florida Coastal did not violate the Ohio Consumer
Sales Practices Act, did not violate the Ohio
Mortgage Broker Act, did not use inaccurate or
misleading terms with regard to the loan.
Doc. 76-1: Joint Decree and Order of Foreclosure, Case No. 08 CV
E 12 1598 (Delaware Cty. Nov. 12, 2014).
The determination of
those issues was necessary to resolve the judgment decree and
order of foreclosure.
If, for example, there been improper debt
collection practices, fraud, or improper assignments, those
issues necessarily would have impacted the state court’s
Further, under Ohio law, the decree of foreclosure is
a final judgment for res judicata purposes.
B.R. 190, 194 (S.D. Ohio 1995).
See In re Hoff, 187
The Browns had a full and fair
opportunity to litigate these issues in the Court of Common
The claims against Mr. Griffith arise solely in the context
of his role as statutory agent for Florida Coastal. It is well
settled law that Mr. Griffith, as agent for Florida Coastal,
essentially acted on behalf of the company as it “alter ego.” See
In re Nat’l. Century Financial Enterprises, Inc., 783 F.Supp.2d
1003 (S.D. Ohio 2011), citing In re Dublin Securities, 133 F.3d
377, 380-81 (6th Cir. 1997).
This necessarily leads to the
conclusion that if the state court made the finding that Florida
Coastal acted properly with respect to the foreclosure, so did
Here, the Defendants do not need to demonstrate
mutuality of parties in the prior litigation because they seek to
use issue preclusion defensively, rather than offensively.
on the foregoing, the Court agrees that the Browns’ claims
against the Defendants in the instant case are barred by res
The Defendants’ motion for summary judgment will be
granted as to the claims against Florida Coastal and Mr.
The Court also notes that there has been no
identification of or service upon the “John Doe” defendants in
this matter, so there are no valid claims remaining against any
For the reasons set forth above, the motion for summary
judgment (Doc. 76) is granted as to all claims brought by against
defendants Florida Coastal and Mr. Griffith.
This case is
dismissed with prejudice and the Clerk is directed to enter
judgment in favor of all defendants.
/s/ Terence P. Kemp
United States Magistrate Judge
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