United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.
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.
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. (Doc. # 13).
The Court again sua sponte dismissed the Amended Complaint on
April 3, 2017, in a detailed order. (Doc. # 17).
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.”
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 methods while initiating foreclosure proceedings.
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 sixty-four pages,
down from the eighty-two page Amended Complaint. But there
are still irrelevant allegations included in the 147
paragraph factual allegations section.
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
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.
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
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).
the Second Amended Complaint qualifies as a shotgun complaint
because it “assert[s] multiple 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
should separate each claim against each Defendant into
different counts and clearly identify each Defendant's
allegedly unlawful conduct. Additionally, the Mesas should
specify in each count's heading which Defendant the count
is brought against.
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