STRANSKY v. PENNYMAC HOLDINGS, LLC et al

REPLY to Response to Motion

D.N.J.March 25, 2019

POWERS KIRN, LLC William M. E. Powers III Attorney ID #001651985 ecf@powerskirn.com 728 Marne Highway, Suite 200 Moorestown, New Jersey 08057 (856) 802-1000 Attorneys for Defendant Powers Kirn, LLC, Michael B. McNeil, Frances M. Kelly and Sarah E. Powers UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY PETR STRANSKY, Plaintiff, v. PENNYMAC HOLDINGS, LLC, POWERS KIRN, LLC, BLANK ROME, LLP, MICHAEL B. MCNEIL, MICHAEL P. TRAINOR, SARAH E. POWERS, LAUREN E. O’DONNELL, and FRANCES M. KELLY, Defendants. Civil Action No. 3:18-cv-15929-MAS-LHG Motion Day: April 1, 2019 REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 1 of 20 PageID: 1188 TABLE OF CONTENTS TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 POINT ONE THE AMENDED COMPLAINT FAILS TO STATE A CLAIM UNDER THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. §1692 et seq.. . . . . . . . . . . . . . . . . . . . 3 POINT TWO ALL CLAIMS PLAINTIFF ATTEMPTS TO ASSERT IN THE AMENDED COMPLAINT ARE BARRED BY EITHER THE NEW JERSEY LITIGATION PRIVILEGE OR THE NOERR-PENNINGTON DOCTRINE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 POINT THREE PLAINTIFF’S CHOICE OF LEGAL AUTHORITY DOES NOT SUPPORT THE ARGUMENT THAT THE AMENDED COMPLAINT ALLEGES CLAIMS THAT ARE NON GERMANE, AND THEREFORE, COULD NOT BE ASSERTED IN THE FORECLOSURE .. . . . . . . . . . . . . . 10 POINT FOUR PLAINTIFF’S ARGUMENT THAT THE CLAIMS PLAINTIFF IS ATTEMPTING TO ALLEGE IN THE AMENDED COMPLAINT ARE NOT BARRED BY A LACK OF FEDERAL JURISDICTION IS UNSUPPORTED BY LEGAL AUTHORITY.. . . . . . . . . . . . . . . . . 12 i Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 2 of 20 PageID: 1189 POINT FIVE THE ASSERTION THAT PLAINTIFF HAS VIABLE CLAIMS IS DUBIOUS AT BEST. . . . . . . . . . . . . . . . . . . . . . . . . . . 13 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ii Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 3 of 20 PageID: 1190 TABLE OF AUTHORITIES Cases: Brown v. Udren Law Offices PC, 2011 WL 4011411 (E.D.Pa. 2011). . . . . . . . . . . 6 California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Church Mutual Insurance Company v. Alliance Adjustment Group, 708 Fed.Appx. 64, 69 (3d Cir.2017).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Coleman v. Chase Home Finance, LLC, 446 Fed.Appx. 469, 472 (3d Cir.2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Colorado River Water Conservation District v. U.S., 424 U.S. 800 (1976). . . . . 12 District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).. . . . . . 12 Estate of Egenious Coles v. Zucker, Goldberg & Ackerman, 658 Fed. Appx. 108, 111 (3d Cir.2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Jones v. Investment Retrievers, LLC, 2011 WL 1565851 (M.D.Pa. 2011). . . . . . . 6 Kaymark v. Bank of America, N.A., 783 F. 3d 168, 179 (3d Cir.2015). . . . . . . . . . 5 Leisure Technology-Northeast, Inc. v. Klingbeil Holding Co., 137 N.J. Super. 353 (App. Div. 1975). . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11 NRV, Inc. v. Davern, 2016 WL 7013456 (D.N.J. 2016). . . . . . . . . . . . . . . . . . . . . . 7 Obduskey v. McCarthy & Holthus LLP, Case No. 17-1307, 586 U.S. , (2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4 Peterson v. Portfolio Recovery Assocs., 430 Fed.Appx. 112, 115 (3d Cir.2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 iii Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 4 of 20 PageID: 1191 Professional Real Estate Investors v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). . . . . . . . . . . . . . . . . . . . . . . . . 12 Schaffhuser v. Citibank (S.D.) N.A., 340 Fed.Appx. 128, 131 (3d Cir.2009). . . . . 6 Williams v. BASF Catalysts LLC, 765 F.3d 306 (3d Cir.2014). . . . . . . . . . . . . . 6, 7 Younger v. Harris, 401 U.S. 37 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Statutes: N.J.S.A. 2A:50-2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Rules: F.R.Civ.P. 11(b)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 L.Civ.R. 7.2(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 iv Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 5 of 20 PageID: 1192 STATEMENT OF THE CASE Powers Kirn, LLC, Michael McNeil, Frances Kelly and Sarah Powers (collectively referred to as “Defendants”) are filing this reply in support of their motion to dismiss the Amended Complaint filed by Petr Stransky (“Plaintiff”) PROCEDURAL HISTORY This case arises in the midst of a pending mortgage foreclosure action (“the foreclosure action”) that was commenced by Powers Kirn, LLC on behalf of Defendant PennyMac Holdings, LLC (“PennyMac”) which is seeking to enforce a security interest in real property where title is vested Peter Stransky. Powers Kirn, LLC initiated the foreclosure action by filing a complaint in the Superior Court of New Jersey, Chancery Division, Monmouth County on March 12, 2014, which matter is captioned PennyMac Holdings, LLC v. Peter Stransky, et al., Docket number F 00936 14. The foreclosure action was contested. A final judgment entered in the foreclosure action on August 14, 2015, however, Petr Stansky filed an appeal of the final judgment (“the first appeal”) which matter was assigned Docket number A-000504-15 and handled by Defendant Blank Rome LLP (“Blank Rome”), who is co-counsel for PennyMac. The first appeal culminated on March 29, 2018 with a non-published opinion remanding the foreclosure action to the Chancery Division to amend the judgment to clarify the property to be sold to 1 Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 6 of 20 PageID: 1193 satisfy the foreclosure judgment. An Order was entered on October 30, 2018, amending the final judgment in the foreclosure action. Prior to the entry of an order amending the final judgment, Plaintiff’s counsel filed a complaint on behalf of a Petr Stransky in the Superior Court of New Jersey, Law Division, Monmouth County on October 8, 2018 under Docket number MON L-003643 18. The complaint was never served, but the lawsuit was discovered so PennyMac and Blank Rome, LLP removed the action to the federal court on November 8, 2018. On December 13, 2018, Petr Stransky filed an appeal in the foreclosure action (the second appeal) which matter is assigned Docket number A-001640-18 and is still pending. The Plaintiff filed an amended complaint (“the amended complaint”) in response to a motion to dismiss by Powers Kirn, LLC causing a denial of the motion as moot on January 30, 2019. Howell Township has filed a motion to intervene in this action on believing the outcome of this case could impact the township. On February 1, 2019, Defendants filed the instant motion to dismiss the amended complaint which is currently scheduled for hearing on April 1, 2019. 2 Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 7 of 20 PageID: 1194 ARGUMENT POINT ONE THE AMENDED COMPLAINT FAILS TO STATE A CLAIM UNDER THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. §1692 et seq. On March 20, 2019, the Supreme Court delivered its opinion in Obduskey v. McCarthy & Holthus LLP, Case No. 17-1307, 586 U.S. , (2019), Slip Opinion, which affirmed the decision of the Court of Appeals for the Tenth Circuit concluding that the “mere act of enforcing a security interest through a non- judicial foreclosure proceeding does not fall under” the Fair Debt Collections Practices Act. Id. at 5. A copy of the slip opinion is attached as Exhibit A. In reaching its holding, the Supreme Court examined the Colorado non-judicial foreclosure process and the protections afforded debtors under Colorado state law including that a homeowner cannot be held liable for the balance due where a house sells for less than what is owed unless the creditor files a separate action in court and obtains a deficiency judgment. Id. at 3-4. New Jersey law affords a similar protection by requiring an action on the bond or note for any deficiency be brought as a separate lawsuit after a mortgage foreclosure. See N.J.S.A. 2A:50-2. Justice Breyer writing for a unanimous court opined: Second, we think Congress may well have chosen to treat security-interest enforcement differently from ordinary debt 3 Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 8 of 20 PageID: 1195 collection in order to avoid conflicts with state nonjudicial schemes. As Colorado’s law makes clear, supra, at 3-4, state nonjudicial foreclosure laws provide various protections designed to prevent sharp collection practices and to protect homeowners, see 2 Dunaway § 17:1. And some features of these laws are in tension with aspects of the Act. For example, the FDCPA broadly limits debtor collectors from communicating with third parties “in connection with the collection of any debt.” § 1692c(b). If this rule were applied to nonjudicial foreclosure proceedings, then advertising a foreclosure sale – an essential element of such schemes – might run afoul of the FDCPA. Given that core purpose of publicizing a sale is to attract bidders, ensure that the sale price is fair, and thereby protect the borrower from further liability, the result would hardly benefit debtors. See 2 Dunaway § 17:4. To be sure, it may be possible to resolve these conflicts without great harm to either the Act or state foreclosure schemes. See Heinz v. Jenkins, 514 U.S. 291, 296-297 (1995) (observing that the FDCPA’s protections may contain certain “implici[t] exception[s]”0. But it is also possible, in light of the language it employed, that Congress wanted to avoid the risk of such conflicts altogether. Id. at 9. The opinion further recognized that the legislative history supports the Court’s reading of the statute that those who engage in only nonjudicial foreclosure proceedings are not debt collectors with the meaning of the Act. Id. at 10. The fact is that judicial foreclosures in New Jersey have far more court supervised involvement than nonjudicial foreclosures in Colorado, and therefore, it logically follows that the law firms and attorneys, who do not regularly pursue deficiency collection, but only engage in foreclosure proceedings are no longer considered debt collectors within the meaning of the FDCPA. In the aftermath of Obduskey v. McCarthy & Holthus LLP, supra, the definition of “debt collector” as 4 Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 9 of 20 PageID: 1196 used in Kaymark v. Bank of America, N.A., 783 F. 3d 168, 179 (3d Cir.2015) can no longer be understood to include attorneys who only handle foreclosure actions, and do not regularly engage in ordinary debt collection. Powers Kirn, LLC, Sarah Powers, Michael McNeil, and Frances Kelly are not regularly engaged to collect debts or handle collection cases, and the amended complaint fails to allege as much. Under Estate of Egenious Coles v. Zucker, Goldberg & Ackerman, 658 Fed. Appx. 108, 111 (3d Cir.2016), a complaint will fail where it does not contain factual allegations that these Defendants regularly collect or attempt to collect debts owed to another. Additionally, the Plaintiff received a Chapter 7 bankruptcy discharge on November 27, 2013 in case number in 13-27968-MBK. See Amended Complaint ¶17. Therefore, a deficiency action is not even within the realm of possibilities if the real property should ever be sold at a sheriff’s sale for a price less than the foreclosure judgment. The amended complaint alleges that the action taken by Defendant Michael McNeil occurred on March 12, 2014, that the action taken by Defendant Frances Kelly occurred on May 27, 2015, and that action by Defendant Sarah Powers occurred on March 18, 2014. Amended Complaint ¶5-¶7, ¶20-¶22 and ¶25. There are no other alleged FDCPA violations specifically directed at these defendants. In sum, the allegations set forth in the amended complaint pertaining to Powers 5 Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 10 of 20 PageID: 1197 Kirn, LLC, Michael McNeil, Frances Kelly and Sarah Powers all involve actions that took place more than a year before the original complaint, which was filed on October 8, 2018, placing all alleged actions beyond the one year statute of limitations for the FDCPA. The two unpublished district court opinions, Jones v. Investment Retrievers, LLC, 2011 WL 1565851 (M.D.Pa. 2011) and Brown v. Udren Law Offices PC, 2011 WL 4011411 (E.D.Pa. 2011), which Plaintiff’s brief cites, are non- controlling and unpersuasive in view of the Third Circuit’s Schaffhuser v. Citibank (S.D.) N.A., 340 Fed.Appx. 128, 131 (3d Cir.2009) and Peterson v. Portfolio Recovery Assocs., 430 Fed.Appx. 112, 115 (3d Cir.2011) decisions which declined to extend a “continuing violations” rule for ongoing litigation. Thus, Plaintiff has failed to state a viable claim under the FDCPA. POINT TWO ALL CLAIMS PLAINTIFF ATTEMPTS TO ASSERT IN THE AMENDED COMPLAINT ARE BARRED BY EITHER THE NEW JERSEY LITIGATION PRIVILEGE OR THE NOERR-PENNINGTON DOCTRINE The decision, Williams v. BASF Catalysts LLC, 765 F.3d 306 (3d Cir.2014), declined to apply the judicial or litigation privilege where the complaint alleged a 6 Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 11 of 20 PageID: 1198 “systematic fraud” over many years and in many courtrooms, that involved not only false statements but the destruction and creation of evidence. Id. at 317. The Williams decision upon which Plaintiff relies is recognized as something of an anomaly due to its very unusual facts. The allegations in the amended complaint do not even remotely resemble factual scenario set forth in Williams v. BASF Catalysts LLC, supra. Subsequent decisions continue to recognize a New Jersey litigation privilege and have held that misrepresentations in pleadings are shielded by the judicial privilege as communications made during the course of litigation. See Church Mutual Insurance Company v. Alliance Adjustment Group, 708 Fed.Appx. 64, 69 (3d Cir.2017). The amended complaint uses the term “pretext” in what appears to be an effort to portray the foreclosure action as pretextual sham in an attempt by Plaintiff to circumvent the immunity afforded by the litigation privilege which prevents the Plaintiff from asserting claims against the attorneys and Powers Kirn, LLC. The Plaintiff’s reliance on unpublished decision NRV, Inc. v. Davern, 2016 WL 7013456 (D.N.J. 2016) is misplaced because the court in NRV, supra, held that the entire litigation was pretextual and it was not designed to achieve the object of the litigation to retrieve confidential information and money damages, but rather was motivated by a desire to get the defendant fired or harm the defendant’s 7 Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 12 of 20 PageID: 1199 competitive position in the market. The same cannot be said about the foreclosure litigation because the state courts have allowed PennyMac to foreclose which is the object of its litigation. Plaintiff’s colorful style of pleading does not change the fact that a function of the state court proceeding is to determine whether there is a right to foreclose and what property is to be sold as there can exist grounds for disagreement as demonstrated by the contesting answer filed in the foreclosure action and the Township’s motion seeking to intervene in this case. The litigation privilege is central this case because the statements, which Plaintiff avers give rise to claims, were made in the course of a judicial foreclosure proceeding by attorneys to achieve the object of the foreclosure and they have some connection or logical relation to that action. The Noerr-Pennington doctrine will also bar the claims Plaintiff has attempted to allege in the amended complaint, including malicious prosecution, and therefore, the prospect for a recovery is non existent here. Plaintiff cites the decisions, California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972) and Professional Real Estate Investors v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993), for the proposition that “sham” litigation is not protected under the Noerr-Pennington doctrine. In Professional Real Estate Investors v. 8 Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 13 of 20 PageID: 1200 Columbia Pictures Industries, Inc., supra, the Court wrote: The existence of probable cause to institute legal proceedings precludes a finding that an antitrust defendant has engaged in sham litigation. The notion of probable cause, as understood and applied in the common law tort of wrongful civil proceedings, required the plaintiff to prove that the defendant lacked probable cause to institute an unsuccessful civil lawsuit and that the defendant pressed the action for an improper, malicious purpose. Stewart v. Sonneborn, 98 U.S. 187, 194, 25 L.Ed. 116 (1879); Wyatt v. Cole, 504 U.S. 158, 176, 112 S.Ct. 1827, 1837-1838, 118 L.Ed.2d 504 (1992) (REHNQUIST, C.J., dissenting); T Cooley, Law of Torts 181. Cf. Wheeler v. Nesbitt, 24 How. 544, 549-550, 16 L.Ed. 765 (1861) (related tort for malicious prosecution of criminal charges). Probable cause to institute civil proceedings requires no more than a “reasonabl[e] belie[f] that there is a chance that [a] claim may be held valid upon adjudication” (internal quotation marks omitted). Hubbard v. Beatty & Hyde, Inc, 343 Mass. 258, 262, 178 N.E.2d 485, 488 (1961); Restatement (Second) of Torts § 675, Comment e, pp. 454-455 (1977). Id. at 62-63. There can be no doubt that there was probable cause to institute the foreclosure in this case as shown by the fact that there is a foreclosure judgment. Significantly, the Plaintiff’s brief fails to discuss the impact of the Rooker- Feldman doctrine, which was discussed in Defendants’ initial brief under Point V at Pages 22-24. The Plaintiff appears to be urging at Page 10 of his brief that a determination of probable cause be revisited in this action. Plaintiff would have this Court substitute its opinion for that of the state courts which never concluded that the foreclosure litigation was objectively baseless as required to place the case within the sham litigation exception to Noerr-Pennington. In summary, Plaintiff 9 Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 14 of 20 PageID: 1201 has offered no plausible reason for denying Defendants’ motion to dismiss which would be properly granted based on the litigation privilege and the Noerr- Pennington doctrine. POINT THREE PLAINTIFF’S CHOICE OF LEGAL AUTHORITY DOES NOT SUPPORT THE ARGUMENT THAT THE AMENDED COMPLAINT ALLEGES CLAIMS THAT ARE NON GERMANE, AND THEREFORE, COULD NOT BE ASSERTED IN THE FORECLOSURE In the decision Leisure Technology-Northeast, Inc. v. Klingbeil Holding Co., 137 N.J. Super. 353 (App. Div. 1975), the Appellate Division held that wrongful and fraudulent actions alleged to have occurred subsequent to execution of the mortgage were germane to a foreclosure action, and it reversed an order severing the counterclaim and transferring it to the Law Division. The court in Leisure Technology, supra, wrote: We have carefully reviewed the record and have concluded that the trial judge took too narrow a view of the scope of permissible Chancery litigation. R. 4:6-2 requires that every defense to an action ‘legal or equitable, in law or in fact’ be asserted in an answer. Ordinarily, failure to set forth a defense constitutes a waiver. R. 4:5- 4; R. 4:6-7. Id. at 356. The court went on to further write that: The use of the word ‘germane’ is the language of the rule 10 Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 15 of 20 PageID: 1202 undoubtedly was intended to limit counterclaims in foreclosure actions to claim arising out of the mortgage transaction which is the subject matter of the foreclosure action. We see no intention to prohibit or restrict counterclaims in the more narrow sense. See 30 N.J. Practice (Cunningham and Tischler, Laws of Mortages), § 246 (1975). See also, N.J.S.A. 2A:50-29 which specifically permits set- offs. Here the trust of the counterclaim is the assertion that plaintiff had breached the underlying agreement in relation to which the mortgage was executed and interfered with defendants’ rights under the agreement. In the usually understood sense of the word, the claims were germane to the foreclosure action. We are persuaded that the single controversy doctrine to which we have referred above requires a liberal rather than a narrow approach to the question of what issues are ‘germane.’ Id. at 358. The amended complaint attempts to set forth claims purportedly arising from prosecution of the foreclosure action, and therefore, these claims obviously relate to the foreclosure and are germane. To the extent that judgment of foreclosure has since been entered does not render the alleged claims non-germane or mean they can be subsequently asserted through a separate civil action. See Coleman v. Chase Home Finance, LLC, 446 Fed.Appx. 469, 472 (3d Cir.2011) (recognizing that a court retains jurisdiction in a foreclosure action even after final judgment, and until delivery of the sheriff’s deed). Therefore, the Plaintiff’s argument that the entire controversy doctrine, res judicata and collateral estoppel are inapplicable as non-germane to the foreclosure is without merit. Furthermore, the various allegations including wrongful foreclosure, misrepresentation, and fraudulent conduct which the Plaintiff is alleging in the amended complaint were 11 Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 16 of 20 PageID: 1203 previously argued by Stransky in state court and rejected. This action does not afford the Plaintiff a second chance. POINT FOUR PLAINTIFF’S ARGUMENT THAT THE CLAIMS PLAINTIFF IS ATTEMPTING TO ALLEGE IN THE AMENDED COMPLAINT ARE NOT BARRED BY A LACK OF FEDERAL JURISDICTION IS UNSUPPORTED BY LEGAL AUTHORITY Plaintiff refers to Defendants’ argument that this Court should dismiss Plaintiff’s amended complaint because the federal court lacks jurisdiction over the matter as “disingenuous” because defendants were responsible for the removal of the case to federal court. Plaintiff has cited no legal authority stating that a case should remain in federal court even if there is no longer any federal jurisdiction simply because the case has been removed. Plaintiff’s brief ignores Defendants’ arguments that Younger v. Harris, 401 U.S. 37 (1971), Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) and Colorado River Water Conservation District v. U.S., 424 U.S. 800 (1976) dictate otherwise. See Plaintiff’s Point V in the initial brief at Pages 20-26. In this case, the Defendants consented to the removal of the action to federal 12 Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 17 of 20 PageID: 1204 court by PennyMac Holdings, LLC because defendants believe the federal court has greater familiarity in handling the federal question presented under the Fair Debt Collection Practices Act. However, this does not mean that the remainder of the claims that the Plaintiff is attempting to assert should proceed as a civil action separate from the foreclosure action. Accordingly, Defendants submit that the dismissal of this action is warranted under these circumstances. POINT FIVE THE ASSERTION THAT PLAINTIFF HAS VIABLE CLAIMS IS DUBIOUS AT BEST For the reasons explained in the Defendants’ initial brief, which was filed on Feburary 1, 2019, the reasons developed in Points 1 - 4 of this reply brief, and the brief that Blank Rome LLP filed on behalf of defendants PennyMac Holdings, LLC, Blank Rome, LLP and its attorneys, Defendants Powers Kirn, Michael McNeil, Frances Kelly and Sarah Powers contend that the amended complaint fails to set forth any viable claim. Moreover, the Plaintiff’s brief, which fails to comport with the requirements of L.Civ.R. 7.2(b), was filed beyond the extension of time allowed by the Court and it also violates F.R.Civ.P. 11(b)(3) inasmuch as the third sentence of the Plaintiff’s Preliminary Statement reads “Plaintiff is not seeking to overturn the 13 Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 18 of 20 PageID: 1205 foreclosure judgment, and has not made that claim in the Amended Complaint.” See Plaintiff’s brief at Page 3. While grammatically, this sentence is a compound sentence, the sentence uses the conjunction “and” which means that both portions of the compound sentence would need to be true for the representation to be truthful. What we have here is a Plaintiff representing to this Court that he is not seeking to overturn the foreclosure judgment when in fact this Plaintiff is actually appealing an order amending the foreclosure judgment in state court. A copy of the Notice of Docketing the second appeal dated December 21, 2018 is attached hereto as Exhibit “B”. The irony here is that the Plaintiff’s case is constructed around a narrative that the Defendants allegedly misrepresented facts to the state court and here it is the Plaintiff who is representing to this Court that Plaintiff is not seeking to overturn the foreclosure judgment when in fact there are efforts underway in state court to overturn the foreclosure judgment. Moreover, it is the Plaintiff who has made a practice of regularly disregarding the rules that govern practice in this Court. 14 Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 19 of 20 PageID: 1206 CONCLUSION For all the reasons advanced herein and before, the amended complaint should be dismissed with prejudice. Respectfully submitted, s/ William M. E. Powers III William M. E. Powers III DATED: March 25, 2019 15 Case 3:18-cv-15929-MAS-LHG Document 32 Filed 03/25/19 Page 20 of 20 PageID: 1207