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United States ex rel. Ashmore v. 1st Financial, Inc.

United States District Court, M.D. Florida, Tampa Division

January 5, 2018

UNITED STATES ex rel. STEVEN ASHMORE, Plaintiff,
v.
1st FINANCIAL, INC., Defendant.

          ORDER

          STEVEN D. MERRYDAY, UNITED STATES DISTRICT JUDGE.

         The complaint (Doc. 30) appears to allege that the relator, who worked as a mortgage underwriter at defendant 1st Financial's Land O' Lakes office for five days in 2016, discovered a mortgage-fraud scheme.[1] Suing under the False Claims Act and a Florida whistleblower-protection statute, the relator claims that 1st Financial lent money to prospective mortgagors in violation of unspecified “underwriting standards and guidelines.” (Doc. 30 at ¶ 22) 1st Financial allegedly sold the mortgages to third-party investors, who allegedly packaged and sold the loans to Fannie Mae and Freddie Mac. (Doc. 30 at ¶¶ 25-26) Although the complaint contains no allegation that a mortgagor defaulted, the relator concludes that the United States “sustained massive losses.” (Doc. 30 at ¶ 8) Finally, the relator claims that 1st Financial fired him for reporting the purported fraud to a supervisor. (Doc. 30 at ¶¶ 65-71) 1st Financial moves (Doc. 32) to dismiss the complaint under Rules 9(b) and 12(b)(6), Federal Rules of Civil Procedure.

         DISCUSSION

         1. Submission of a false claim to the United States

         Because the False Claims Act punishes fraud against the United States, Rule 9(b) requires a relator to allege “with particularity the circumstances constituting fraud.” In United States ex rel. Clausen v. Lab. Corp. of America, Inc., 290 F.3d 1301 (11th Cir. 2002), a relator alleged a fraudulent scheme to bill the United States for medically unnecessary tests but failed to identify a single claim submitted to the United States. Affirming the district court's dismissal of the action for violating Rule 9(b), Clausen holds that a relator must allege specific facts to show the “actual submission” of a false claim to the United States. A relator cannot “describe a private scheme in detail but then [] allege simply and without any stated reason for his belief that claims requesting illegal payments must have been submitted, were likely submitted, or should have been submitted to the government.” Clausen, 290 F.3d at 1311.

         No specific and well-pleaded facts show the “actual submission” of a false claim to the United States, and the “sample loans” alleged in paragraphs thirty-six through thirty-eight suffer from a defect similar to that in Clausen. For example, paragraph thirty-seven alleges that a prospective mortgagor applied to 1st Financial for a “Fannie Mae loan.” According to the relator, the applicant's stated employment history counseled against approval, but 1st Financial approved the loan anyway. Other than the unsubstantiated allegation that the transaction was a “Fannie Mae loan, ” no facts specifically connect the loan to the United States. For example, the relator fails to identify the day that Fannie Mae bought the mortgage from the investor to whom 1st Financial purportedly sold the mortgage, and the relator appends to the complaint no evidence to show that Fannie Mae “actually” bought that loan (or any other allegedly fraudulent loan originated by 1st Financial). See United States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1357 (11th Cir. 2006) (explaining that Rule 9(b) requires a relator to allege specific facts “as to the time, place, and substance of the defendant's alleged fraud”). And the relator fails to detail the substance of 1st Financial's alleged fraud. If anything, the details in the complaint suggest that prospective mortgagors defrauded 1st Financial (Doc. 30 at ¶¶ 36-38), but no well-pleaded facts describe “with particularity” what fact 1st Financial misrepresented and when 1st Financial misrepresented that fact. Also, the relator fails to specify to whom 1st Financial allegedly misrepresented a fact.[2]

         In addition to failing to plead fraud with particularity, the complaint suffers from at least two other defects. First, several paragraphs violate Rule 10(b), which requires limiting each paragraph to a “single set of circumstances.” Second, each count in the complaint impermissibly incorporates by reference all of the preceding paragraphs. See Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1321 (11th Cir. 2015) (describing a “shotgun” complaint).

         Also, 1st Financial correctly observes that liability under the False Claims Act requires the submission of a false claim to the United States and that Fannie Mae and Freddie Mac (although chartered by Congress) are private corporations.[3] (Doc. 32 at 11, which cites United States ex rel. Adams v. Aurora Loan Servs., Inc., 813 F.3d 1259 (9th Cir. 2016) (Silverman, J.)) A “claim” means “any request or demand” for money or property:

(i) presented to an officer, employee, or agent of the United States; or
(ii) made to a contractor, grantee, or other recipient, if the money is to be used or spent on the Government's behalf or to advance a Government program or interest, and if the United States Government:
(I) provides or has provided any portion of the money or property requested or demanded; or
(II) will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded.

31 U.S.C. § 3729(b)(2)(A). Although not “officer[s], employee[s], or agent[s]” of the United States, Fannie Mae and Freddie Mac might qualify as “recipient[s]” if the relator alleges with specificity facts sufficient to show that the United States provided some or all of the money that 1st Financial “request[ed]” or “demand[ed]” from Fannie Mae and Freddie Mac.[4] The complaint includes no specific and well-pleaded facts to show that the United States provided the money “requested” or “demanded” by 1st Finance, but a well-pleaded amendment might cure that defect.[5]

         2. ...


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