United States District Court, S.D. Florida
ROY J. DIXON JR. and BLANCHE L. DIXON, Plaintiffs,
GREEN TREE SERVICING, LLC n/k/a DITECH FINANCIAL LLC SUCCESSOR BY MERGER, COUNTRYWIDE FINANCIAL CORPORATION, COUNTRYWIDE BANK, COUNTRYWIDE HOME LOANS, INC., COUNTRY WIDE HOME LOANS SERVICING LP, BAC HOME LOANS SERVICING LP, n/k/a BANK OF AMERICA, NA SUCCESSOR BY MERGER, FANNIE MAE, Defendants.
ORDER AND OPINION ON THIRD MOTION TO AMEND
KENNETH A. MARRA UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Dixons' Motion
Requesting Leave to File a Verified Second Amended Complaint
Pursuant to FRCP Rule 15(a), Rule 19(a) and Rule 18(a) [DE
47] (“Third Motion to Amend”). The Court has
carefully considered the motion, responses, reply, oral
argument at a hearing on May 10, 2019, and is otherwise fully
advised in the premises.
History and Background
January 8, 2019, Roy J. Dixon Jr. And Blanche L. Dixon
(“Plaintiffs” or “the Dixons”) filed
a Complaint against Green Tree Servicing, LLC n/k/a Ditech
Financial LLC (“Ditech”) (DE 1).
February 6, 2019, the Dixons filed a Verified Amended
Complaint against “Green Tree Servicing, LLC n/k/a
Ditech Financial LLC Successor by Merger, Countrywide
Financial Corporation, Countrywide Bank, Countrywide Home
Loans, Inc., Countrywide Home Loans Servicing LP, BAC Home
Loans Servicing LP, n/k/a Bank of America, N.A. Successor by
Merger, and Fannie Mae” (DE 4).
Defendants Federal National Mortgage Association
(“Fannie Mae”) (DE 23) and Bank of America N.A.
(“BOA”) (DE 37) filed Motions to Dismiss the
Amended Complaint with Prejudice.
Dixons filed an “Amended Motion Requesting Leave to File a
Verified Second Amended Complaint Pursuant to FRCP Rule
15(a)(2), Rule 19(a) and Rule 18(a) and Requests 15 Days
Extension of Time to Finish the Complaint” (DE 38)
(“Second Motion to Amend”).
Defendants BOA (DE 46), and Fannie Mae, jointly with Ditech
(DE 42), filed responses to the Second Motion to Amend.
Dixons then filed the instant Third Motion to Amend (DE 47).
The Third Motion to Amend, unlike the first or Second Motion
to Amend, attaches a proposed Second Amended Complaint.
Ditech (DE 48), BOA (DE 55), and Fannie Mae (DE 59) filed
responses to the Third Motion to Amend.
Defendants' responses to the Dixons' Second Motion to
Amend are incorporated by reference in the responses to the
Dixons' Third Motion to Amend, which together challenge
all the causes of actions the Dixons wish to bring.
proposed Second Amended Complaint (DE 47-2) adds five new
claims and three new defendants: Federal Housing Finance
Agency, as Conservator of the Federal National Mortgage
Association, Law firm of Roberson, Anschutz & Schneid PL,
and Erik T. Samsing in his individual capacity.
Plaintiffs proceeded for some time under the misguided belief
that they removed a state foreclosure action to this Court.
They did not, and were so advised in an Order Denying Motion
to Quash and Motion for Reconsideration (DE 53), and at the
hearing held on May 10, 2019. The proposed Second Amended
Complaint improperly includes a description of this lawsuit
as a removed action. See, e.g., DE 47-2 at 1.
proposed Second Amended Complaint asserts the following
1) Beach of Contract;
2) Violation of the Florida Deceptive and Unfair Trade
Practices Act (“FDUTPA”);
3) Violation of the Fair Dept Collection Practices Act
4) Violation of 15 USC
5) Violation of 10 U.S.C. § 921(a)(1): Larceny and
6) Civil RICO; 7) Fraudulent Misrepresentation;
8) Mortgage Fraud;
9) Gross Negligence;
10) Civil Theft; and
11) Quiet Title and Rescission of the 2011 Loan Modification.
survive a Rule 12(b)(6) motion to dismiss, a plaintiff must
plead sufficient facts to state a claim that is
“plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)
(“Iqbal”) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)
(“Twombly”). The Court's
consideration is limited to the allegations presented.
See GSW, Inc. v. Long Cty., 999 F.2d 1508, 1510
(11th Cir. 1993). All factual allegations are accepted as
true and all reasonable inferences are drawn in the
plaintiff's favor. See Speaker v. U.S. Dep't of
Health & Human Servs. Ctrs. for Disease Control &
Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010);
Roberts v. Fla. Power & Light Co., 146 F.3d
1305, 1307 (11th Cir. 1998). Nevertheless, while a plaintiff
need not provide “detailed factual allegations, ”
the allegations must consist of more than “a formulaic
recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555 (internal citations and
quotations omitted). “[C]onclusory allegations,
unwarranted factual deductions or legal conclusions
masquerading as facts will not prevent dismissal.”
Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185
(11th Cir. 2003). The “[f]actual allegations must be
enough to raise a right of relief above the speculative
level.” Watts v. Fla. Int'l Univ., 495
F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly,
550 U.S. at 545).
addition to the requirements of Twombly, Iqbal, and
Federal Rule of Civil Procedure 12(b), causes of action
sounding in fraud are subject to the heightened pleading
standards of Federal Rule of Civil Procedure 9(b). See
Ambrosia Coal & Constr. Co. v. Pages Morales, 482
F.3d 1309, 1316 (11th Cir. 2007) (“Ambrosia
Coal”). That rule provides that “[i]n
alleging of fraud or mistake, a party must state with
particularity the circumstances constituting fraud or
mistake” but that “[m]alice, intent, knowledge,
and other conditions of a person's mind may be alleged
generally.” Fed.R.Civ.P. 9(b). Consequently,
“[t]o satisfy the Rule 9(b) standard, [fraud claims]
must allege: (1) the precise statements, documents, or
misrepresentations made; (2) the time and place of and person
responsible for the statement; (3) the content and manner in
which the statements misled the Plaintiffs; and (4) what the
Defendants gained by the alleged fraud.” Ambrosia
Coal, 482 F.3d at 1316-17 (citing Brooks v. Blue
Cross & Blue Shield, 116 F.3d 1364, 1380-81 (11th
Cir. 1997) (“Brooks”)).
otherwise specified, a party may amend its pleading
“only with the opposing party's written consent or
the court's leave.” Fed.R.Civ.P. 15(a)(2). The Rule
goes on to state that “[t]he court should freely give
leave when justice so requires.” Id. Despite
the rule that leave to amend should be given freely, the
court may deny leave to amend on numerous grounds, including
the futility of the amendment. Maynard v. Bd. of Regents
of Div. of Univs. of Florida Dept. of Educ. ex rel. Univ. of
S. Florida, 342 F.3d 1281, 1287 (11th Cir. 2003).
Futility justifies the denial of leave to amend where the
complaint, as amended, would still be subject to dismissal.
Burger King Corp. v. Weaver, 169 F.3d 1310, 1320
(11th Cir. 1999) (citations omitted); Bruce v. U.S. Bank
Nat'l Assoc., - Fed.Appx. -, No. 18-10553, 2019 WL
1959619, at *1 (11th Cir. May 2, 2019) (“The
district court was correct that [Plaintiffs'] claims, as
pleaded in the complaint, were outside the statute of
limitations and that allowing [Plaintiffs] to amend their
complaint would have been futile.”)
Plaintiffs are proceeding pro se, however, their
Complaint must be “liberally construed.”
Erickson v. Pardus, 551 U.S. 89 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976).
“[A] pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings
drafted by lawyers.” Id.; see also
Fed.R.Civ.P. 8(e) (“Pleadings must be construed so as
to do justice”).
March 8, 2019, Ditech filed a Notice of Bankruptcy and
Imposition of Automatic Stay (DE 17). In response thereto,
this Court entered an Order On Suggestion Of Bankruptcy (DE
31) on March 20, 2019, automatically staying this civil
action as to Ditech (the “Stay Order”).
Dixons' proposed Second Amended Complaint asserts legal
claims against Ditech that request monetary damages. As such,
the Third Motion to Amend not only violates the automatic
stay in Ditech's Chapter 11 bankruptcy case in the
Southern District of New York, but also violates this
Court's March 20, 2019 Stay Order, which was entered
weeks before the Third Motion to Amend was filed. Any actual
complaint subsequently filed that seeks monetary damages
against Ditech would violate this Court's Stay Order and
the automatic stay in Ditech's Chapter 11 bankruptcy
case, and is void and without legal effect. Borg-Warner
Acceptance Corp. v. Hall, 685 F.2d 1306, 1308
(11th Cir. 1982). Furthermore, it should be noted
that parties willfully violating the automatic stay may find
themselves subject to compensatory and punitive damages. Hon.
W. Homer Drake, Jr. et al, Chapter 11
Reorganizations, § 9:5 Automatic stay (2d ed.).
Dixons' proposed Second Amended Complaint drops Fannie
Mae as a named defendant and does not appear to assert any
claims against Fannie Mae. Accordingly, Fannie Mae's (DE
23) Motion to Dismiss with Prejudice the Amended Complaint is
Bank of America
sue BOA, individually and as successor by merger to BAC Home
Loans Servicing, LP.
initial matter, BOA asserts each count fails to state a
proper cause of action under Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). Additionally, BOA challenges
each allegation in the new counts as an impermissible