Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mora v. Martinez-Clark

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

April 27, 2018

MONICA MORA, Plaintiff,



         This cause came on for consideration without oral argument on the following motion filed herein:

FILED: February 20, 2018 THEREON it is RECOMMENDED that the motion be DENIED and Plaintiff's complaint be DISMISSED WITH PREJUDICE.


         On April 26, 2016, Plaintiff, proceeding pro se, filed a verified complaint (the “Initial Complaint”) against Defendant. Doc. No. 1. The following facts are taken from the Initial Complaint. Plaintiff was the owner of real property in Orlando, Florida (the “Property”). Id. at ¶ 4. In February 2006, Defendant, who appears to have been Plaintiff's husband at the time, informed Plaintiff that he needed to use the Property as security for a loan. Id. at ¶¶ 5, 15. Plaintiff agreed to the transaction and executed the necessary papers to complete the same. Id. at ¶ 6. Plaintiff recognized that there is no evidence showing that the loan's lender was allowed to do business in Florida or that the lender was able to fund and consummate a loan transaction.[1] Id. at ¶ 8. Plaintiff demanded that Defendant take action to remove the Property's encumbrances. Id. at ¶¶ 9-10. On December 12, 2006, Plaintiff and Defendant mailed notices of loan rescission (the “Notices”) to the “named payee, ” which appears to be Fremont Investment and Loan (“Fremont”).[2] Id. at ¶ 11. Defendant informed Plaintiff that Fremont's failure to respond to the Notices voids the Property's encumbrances associated with the loan. Id. at ¶¶ 12-14, 17. Plaintiff and Defendant are in the process in dividing marital property, and Plaintiff seeks a declaratory judgment stating that: 1) under the Truth in Lending Act, 15 U.S.C. § 1601 et seq., the loan's rescission was effectuated at the time the Notices were sent; and 2) any encumbrances associated with the loan were voided due to Fremont's failure to respond. Id. at 5-6.

         On May 23, 2016, Plaintiff filed a return of service stating that Defendant was served on May 4, 2016. On May 31, 2016, Plaintiff moved for entry of clerk's default against Defendant, which was entered on June 1, 2016. Doc. Nos. 8, 9. On June 30, 2016, Plaintiff moved for entry of default judgment against Defendant. Doc. No. 10.

         On November 22, 2016, the undersigned recommended that the Court deny Plaintiff's motion for default judgment and dismiss the Initial Complaint without prejudice because Plaintiff failed to allege an actual controversy resulting in adverse legal interests. Doc. No. 13 at 5. The undersigned found no adverse legal interest under the Declaratory Judgment Act because the alleged facts show the parties' mutual interest in receiving a declaratory judgment stating that the Notices rescinded the Property's encumbrances. Id. The undersigned also found that the Initial Complaint failed to name an indispensable party because it failed to identify the person or entity holding the adverse claim to the Property. Id. at 5-6. On January 24, 2017, United States District Judge Paul G. Byron dismissed the Initial Complaint without prejudice. Doc. No. 15. On February 7, 2017, Plaintiff filed an amended verified complaint (the “Amended Complaint”) stating allegations similar to the Initial Complaint. Doc. No. 16. The Amended Complaint also named U.S. Bank, National Association (“U.S. Bank”) as another Defendant. Id. On July 7, 2017, U.S. Bank moved to dismiss the Amended Complaint, and the Court granted U.S. Bank's motion on August 9, 2017. Doc. Nos. 27, 29.

         On February 20, 2018, Plaintiff filed another motion seeking entry of default judgment (the “Motion”) against Defendant. Doc. No. 38. The Motion states that Defendant was served on May 4, 2016, and the Clerk entered default against him on June 1, 2016. Doc. No. 38 at 1. Plaintiff never filed an affidavit of service or presented any other evidence showing that the Amended Complaint was served on Defendant.

         Plaintiff has appeared in two other cases on the same set of operative facts. On March 28, 2016, Plaintiff filed a similar complaint against the same defendant and requested the same relief sought in this action. See Mora v. Martinez-Clark (Mora I), Case No: 6:16-cv-526-PGB-DAB (M.D. Fla. 2016), Doc. No. 1 at 5-6. When Plaintiff requested leave to proceed in forma pauperis, United States Magistrate Judge David A. Baker recommended that Plaintiff's request be denied and that the case be dismissed “because the claim, as pled, fails to state a cause or controversy between these parties.” Mora I, Doc. No. 3 at 4. Judge Baker also found that despite the Declaratory Judgment Act's requirement of an actual controversy, “it is plain that their interests are aligned viz-a-viz their position that the encumbrance was ‘rescinded.' As such, there is no adverse legal interest between the two named parties, and no controversy to adjudicate.” Id. Judge Byron adopted and confirmed Judge Baker's recommendation. Mora I, Doc. No. 4.

         On April 27, 2016, Plaintiff, then a defendant, filed a notice of removal in a foreclosure action. See U.S. Bank, N.A. v. Martinez-Clark et. al. (Mora II), Case No: 6:16-cv-717-PGB-KRS, (M.D. Fla. 2016), Doc. No. 1. Despite the case involving only state law claims, Plaintiff asserted that federal jurisdiction existed because she had raised “the defense of [Truth in Lending Act] rescission.” Mora II, Doc. No. 1 at 3. United States Magistrate Judge Karla R. Spaulding recommended that the Court remand the case “because it was improvidently removed” due to lack of subject matter jurisdiction. Mora II, Doc. No. 30 at 3. On October 11, 2016, Judge Byron adopted and confirmed Judge Spaulding's recommendation. Mora II, Doc. No. 32.


         The Federal Rules of Civil Procedure establish a two-step process for obtaining a default judgment. Fed.R.Civ.P. 55. First, when a party against whom a judgment for affirmative relief is sought fails to plead or otherwise defend as provided by the Federal Rules of Civil Procedure (and that fact is made to appear by affidavit or otherwise) the Clerk enters default. Fed.R.Civ.P. 55(a). Second, after obtaining clerk's default, the plaintiff must move for default judgment. Fed.R.Civ.P. 55(b). Before entering default judgment, the court must ensure that it has jurisdiction over the claims and parties, and that the well-pled factual allegations of the complaint, which are assumed to be true, adequately state a claim for which relief may be granted. Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).[3]

         III. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.