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Santamaria v. Carrington Mortgage Services, LLC

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

April 1, 2019

ISABEL SANTAMARIA, Plaintiff,
v.
CARRINGTON MORTGAGE SERVICES, LLC, BANK OF AMERICA, N.A., AKERMAN LLP, LIEBLER, GONZALEZ & PORTUONDO, P.A., MARINOSCI LAW GROUP, P.C., P.A., WILLIAM P. GRAY, PAUL W. ETTORI, SCOTT R. STENGEL, SAHILY SERRADET and MICHAEL P. GELETY, Defendants.

          REPORT AND RECOMMENDATION

          THOMAS B. SMITH UNITED STATES MAGISTRATE JUDGE.

         This case comes before the Court on Plaintiff's third Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) (Doc. 17). For the following reasons I respectfully recommend that the application be denied and that this case be dismissed without prejudice.

         I. Legal Standard

         Federal courts may allow an individual to proceed in forma pauperis if that person declares in an affidavit that she “is unable to pay [filing] fees or give security therefor.” 28 U.S.C. § 1915(a)(1). Prior to determining whether a plaintiff qualifies to proceed in forma pauperis, the Court, pursuant to 28 U.S.C. §1915(e)(2), must review the complaint to determine whether it should be dismissed. Garrett v. Internal Rev. Servs., 694 Fed.Appx. 761 (11th Cir. 2017) (“Garrett applied to proceed in forma pauperis, so the district court was required to review his complaint and to ‘dismiss the case ... if ... the action or appeal ... [was] frivolous.'”); Abram-Adams v. Citigroup, Inc., No. 12-CIV-80339-DMM, 2012 WL 12931975, at *1 (S.D. Fla. May 8, 2012) (“District courts must review civil complaints filed in forma pauperis and shall dismiss complaints that are frivolous, malicious, or fail to state a claim”). Section 1915(e) provides that a district court may dismiss a case filed in forma pauperis if it is satisfied that the action is frivolous, fails to state a claim upon which relief may be granted, or seeks monetary relief against an immune defendant. Id. § 1915(e)(2). If the complaint is deficient, the Court must dismiss the lawsuit on its own authority. See id.

         The United States Supreme Court has observed that “a litigant whose filing fees and court costs are assumed by the public ... lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Neitzke v. Williams, 490 U.S. 319, 324 (1989). But, the Supreme Court cautioned that a case should only be dismissed as frivolous if it relies on meritless legal theories or facts that are clearly baseless. See id. at 327. A complaint should not be dismissed for failure to state a claim “without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2nd Cir. 1999) (per curiam) (citation and internal quotation marks omitted); see also Troville v. Venz, 303 F.3d 1256, 1260 & n.5 (11th Cir. 2002) (per curiam).

         A lawsuit is frivolous if the plaintiff's realistic chances of ultimate success are slight. Clark v. Ga. Pardons & Paroles Bd., 915 F.2d 636, 639 (11th Cir. 1990). The trial court must determine whether there is a factual and legal basis, of constitutional or statutory dimension, for the asserted wrong. Id. The Court should order a § 1915 dismissal only when a claim lacks an arguable basis in law. Neitzke, 490 U.S. At 325. Claims may lack an arguable basis in law because of either factual or legal inadequacies. Id.

         Legal theories are frivolous when they are “indisputably meritless.” Id. at 329. Section 1915 authorizes the dismissal of “claims of infringement of a legal interest which clearly does not exist.” Id., at 327. A complaint is also frivolous where it asserts factual allegations that are “clearly baseless, ” which, in turn, encompass allegations that are “fanciful, ” “fantastic, ” and “delusional.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (quoting Neitzke, 490 U.S. at 325, 327-28).

         II. Case Background[1]

         In 2014, Defendant Carrington Mortgage Services (“CMS”) began servicing the mortgage on the home owned by Plaintiff and her husband (Doc. 16, ¶ 33). In 2015, CMS, represented by Defendant Marinosci Law Group, P.C., P.A. (“Marinosci”), filed suit to foreclose the mortgage on Plaintiff's home (Id., ¶ 34). In 2016, Plaintiff and her husband counterclaimed against CMS, Defendant Bank of America, N.A. (“BANA”), and Marinosci (Id., ¶ 35). Plaintiff fails to explain in her amended complaint, the reason for including BANA in the counterclaim.

         Plaintiff represents that she is disabled due to diabetes (mellitus), Type 2 (adult onset); hypertension; fibromyalgia/chronic fatigue syndrome; multiple sclerosis (suspect); sciatic neuropathy; annular fissures with bulges and protrusions in her cervical spine; carpal tunnel syndrome; migraine unspecified; PTSD (with PTSD related panic attacks in response to stimuli associated with a nerve stressor); major depressive disorder; ADHD; glaucoma (both eyes); Uveitis Busacca's Nodules, in both eyes; and bilateral ocular hypertension (Id., ¶ 22). She says that she “suffers from well-documented cognitive disabilities which often renders her unable to function in stressful situations.” (Id., ¶ 24). Plaintiff claims that these disabilities impair her ability to communicate, understand, and, at times, listen (Id., ¶ 30). She also reports experiencing panic attacks and other unspecified medical issues (Id.).

         In the state foreclosure case Plaintiff and her husband informed opposing counsel that Plaintiff would be receiving assistance from an Americans with Disabilities Act (“ADA”) advocate (Id., ¶ 38). The advocate's role would be to assist Plaintiff in all proceedings and meetings and to interact with opposing counsel (Id.). ADA Judicial Access appointed Dr. Rebecca Sharp to advocate for Plaintiff (Id., ¶ 39).

         In May of 2016, Plaintiff submitted an ADA Title II Accommodation Request to the state court (Id., ¶ 38). Of the multiple requests made by Plaintiff: “The most important and necessary accommodation requested by the Plaintiff was the assistance of an ADA Advocate at all times due to her disabilities and to protect her civil rights.” (Id.). The presiding state judge approved the requested accommodations (Id.).

         A hearing was scheduled on Plaintiff's Motion for Proof of Authority to Represent (Id., ¶ 39). Plaintiff attended the hearing with her husband and Sharp (Id.). She experienced a panic attack during the hearing and asked Sharp to read her argument into the record (Id.). The state court judge was cooperative with Sharp's participation in the proceedings (Id.).

         Plaintiff alleges that after the hearing she, her husband, and Sharp were “ambushed outside the courtroom” by Defendants Scott Stengel, Sahily Serradet and Michael P. Gelety (Id., ¶ 40). Stengel is an attorney affiliated with Defendant Akerman LLP (Id., ¶ 15). Serradet is an attorney affiliated with Defendant Liebler, Gonzalez & Portuondo (Id., ¶ 17). Gelety is an attorney affiliated with Marinosci (Id., ΒΆ 18). ...


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