Deboskey v. Suntrust Mortgage, Inc. et al

MOTION to dismiss for failure to state a claim

M.D. Fla.August 4, 2016

1 UNITED STATES DISTRICT COURT MIDDLE DISTICT OF FLORIDA (TAMPA DIVISION) Case No.: 8:14-CV-01778-MSS-TGW WILLIAM P. DeBOSKEY, Plaintiff, v. SUNRTRUST MORTGAGE, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC.; SUNTRUST BANK; TERRY G. KING; TOMAR HILL; CHISTIANA TRUST, a division of WILMINGTON SAVINGS FUND SOCIETY, FSB, as trustee for STANWICH MORTGAGE LOAN TRUST, SERIES 2012-2013; CARRINGTON MORTGAGE SERVICES, LLC; RONALD R. WOLFE & ASSOCIATES, P.L; f/k/a DEFAULT LAW GROUP, P.L; JULIE ANTHOUSIS; BRIAN RICHARD HUMMEL; VICTORIA SUZANNE JONES; MICHAEL ROY ESPOSITO; DONATA SZYMANSKI SUPLEE; IVAN DIMITROV IVANOV; RICKISHA LAVON HIGHTOWER- SINGLETARY; FRANCIS EDWARD HANNON; JOHN J. CULLARO, JR.; ASHLEIGH LAUREN PRICE; LISA LYNNE CULLARO; JUSTIN JAMES KELLEY; LINDSEY DIEHL LAMB; STOREY LAW GROUP, P.A.; EDWARD A. STOREY, III; SUZANNE VICTORIA DELANEY; and CHRISTIAN JUSTIN GENDREAU, Defendants. / DEFENDANT CHRISTIANA TRUST, A DIVISION OF WILMINGTON SAVINGS FUND SOCIETY, FSB AS TRUSTEE FOR STANWICH MORTGAGE LOAN TRUST SERIES 2012-2013’S MOTION TO DISMISS AMENDED COMPLAINT [D.E. 118] Defendant, CHIRSTIANA TRUST, A DIVISION OF WILMINGTON SAVINGS FUND SOCIETY, FSB, AS TRUSTEE FOR STANWICH MORTGAGE LOAN TRUST, SERIES 2012-2013 (“Defendant” or “Christiana Trust”), by and through its undersigned Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 1 of 23 PageID 1291 2 attorney and pursuant to Federal Rules of Civil Procedure 8, 9 and 12 as well as Local Rule 3.01, files this Motion to Dismiss the claims asserted against it by Plaintiff, WILLIAM P. DEBOSKEY (“Plaintiff” or “DeBoskey”) in the Plaintiff’s Amended Complaint [D.E. 118]1 and as grounds states as follows: BACKGROUND 1. Plaintiff initiated this action over 2 years ago, on July 23, 2014. [D.E. 1]. 2. This action stems from a residential foreclosure action which was filed in Hernando County, Florida against Plaintiff (the “Foreclosure Case”).2 [D.E. 118 at ¶ 43]. 3. The Foreclosure Case was initiated by The Florida Default Law Group on behalf of SunTrust Bank, N.A. (both Co-Defendants in this action). [D.E. 118 at pp. 89-93]. 4. In February, 2013, Christiana Trust was assigned the underlying Mortgage and then appeared in the Foreclosure Case. See D.E. 118 at ¶¶ 71-72. 5. Eventually, (although not clear in the Amended Complaint) the Foreclosure Case was voluntarily dismissed, which DeBoskey appealed and which was dismissed by Florida’s Fifth District Court of Appeal. See D.E.s 107 and 108. 6. On or about June 21, 2016, Plaintiff filed his Amended Complaint. [D.E. 118]. 7. The Amended Complaint contains 209 paragraphs (which are often difficult to follow), 118 pages (which includes exhibits), contains nine (9) counts against 27 defendants, and 1 References to the docket will be to the numbered docket entry. For example, reference to Docket Entry 10 would be [D.E. 10]. 2 Plaintiff has alleged that the state Foreclosure Case was commenced on July 31, 2009 and styled SunTrust Bank, N.A. v. William P. Deboskey, et al., Hernando County Case No.: 2009- CA-002727. Indeed, Plaintiff attached a copy of the foreclosure complaint to the Amended Complaint as Exhibit 3. See D.E. 118 at pp.89-93. Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 2 of 23 PageID 1292 3 includes a lengthy RICO claim and must be dismissed for failure to state a claim.3 8. The Amended Complaint is vague, overly broad, conclusory, and fails to state a claim upon which relief can be granted. It is a perfect example of “shotgun pleading” and for that reason alone should be dismissed. 9. Plaintiff, in a previous Motion for Leave to File Amended Complaint [D.E. 97], stated that he “believe[d] that filing his proposed Amended Complaint [would] resolve, or at least narrow, some if the issues raised by Defendants [sic] respective Motions [to Dismiss].” [D.E. 97 at ¶ 5]. 10. This Court, in denying Plaintiff’s Motion for Leave to File Amended Complaint [D.E. 97], pointed out that Plaintiff has tacitly acknowledged the pleading deficiencies in his prior Complaint.4 [D.E. 104 at p.2]. 11. This Court stated that “[o]n a cursory review of the Amended Complaint, the Court finds that it too suffers from certain infirmities, including lumping defendants together within individual counts and asserting multiple causes of action within individual counts in violation of Rules 8 and 10.” [D.E. 104 at p. 2]. 12. This Court entered D.E. 104 on February 2, 2015, nearly a year and a half prior to the filing of the Amended Complaint [D.E. 118]. Plaintiff has had ample time to correct the deficiencies which this Court recognized in the prior proposed amended complaint. Yet, despite nearly a year and a half passing, Plaintiff has failed to correct the pleading deficiencies. 13. Plaintiff’s Amended Complaint is a rambling, prolix, confusing pleading which 3 Christiana Trust joins all other co-defendants which have moved to dismiss the Amended Complaint. 4 The Motion for Leave to File an Amended Complaint was denied because Plaintiff did not attach the proposed Complaint to his motion, but instead filed it separately. [D.E. 104 at p. 2]. Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 3 of 23 PageID 1293 4 Christiana Trust cannot reconcile in order to properly respond to the allegations contained therein which might apply to it. 14. Five (5) counts in the Amended Complaint appear to name Christiana Trust. Specifically: (1) Count II - Truth In Lending Act; (2) Count V - Fair Debt Collection Practice Act Regarding the Assignment Defendants; (3) Count VI - Florida Consumer Collection Practices Act Regarding Creditors; (4) Count VIII - Malicious Prosecution; and, (5) Count IX - Racketeering Influenced and Corrupt Organizations Act. 15. Despite such a lengthy Amended Complaint there are few factual allegations regarding Christiana Trust’s specific alleged acts. 16. Plaintiff in this action is proceeding pro se and generally pro se litigants are held “to a less stringent standard that pleadings drafted by an attorney.” Odin v. Google, 628 Fed.App’x 635, 637 (11th Cir. 2015) (quoting Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)). “[T]his leniency does not give the court license to serve as de facto counsel for a party . . . or to rewrite an otherwise deficient pleading in order to sustain an action.” GJR Invs. V. City of Escambia, Fla., 132 F. 3d 1359, 1369 (11th Cir. 1998) (citations omitted)). THE AMENED COMPLAINT FAILS TO COMPLY WITH RULE 8 AND REQUIRES DISMISSAL 17. The Amended Complaint [D.E. 118] fails under the standards for pleading in Fed.R.Civ.P. 8 and United States Supreme Court and Eleventh Circuit Court of Appeals precedent. 18. Federal Rule of Civil Procedure 8(a)(2) requires a pleading contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” The “factual Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 4 of 23 PageID 1294 5 allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007). 19. A pleading “demands more than an unadorned, the-defendant-unlawfully-harmed- me accusation” but a “pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do”, “nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.”” Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009). 20. The complaint “must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 678 (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 663 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678. “Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’; “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 679 (citing Twombly, 550 U.S. at 555). “Determining whether a complaint states a plausible claim for relief will, … be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id, at 679. 21. Further, in the Eleventh Circuit, “[f]actual allegations that are “‘merely consistent with’ a defendant’s liability” fall short of being facially plausible.” Chaparro v. Carnival Corporation, 693 F.3d 1333, 1337 (11th Cir. 2012) (citing Iqbal, 556 U.S. at 678 (quoting Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 5 of 23 PageID 1295 6 Twombly, 550 U.S. at 557)). The Chaparro court continued, “[t]he plausibility standard ‘calls for enough fact to raise a reasonable expectation that discovery will reveal evidence’ of the defendant’s liability.” Id. (citing Twombly, 550 U.S. at 556). The Eleventh Circuit also articulated that “if allegations are indeed more conclusory than factual, then the court does not have to assume their truth.” Id. (citing Mamani v. Berzain, 654 F.3d 1148, 1153-1154 (11th Cir. 2011)). 22. The Eleventh Circuit has also stated: The plausibility standard is met only where the facts alleged enable “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” [citing Iqbal, 556 U.S. at 678.] A plaintiff cannot rely on “naked assertion[s] devoid of further factual enhancement.” Id. Rather, a complaint must present sufficient factual matter, accepted as true, to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. A plaintiff need not plead “detailed factual allegations,” but he must demonstrate “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 708 (11th Cir. 2014) (citing Iqbal, 556 U.S. 678.). See also, Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996).” Frantz v. Walled, 513 Fed.App’x. 815, 820 (11th Cir. 2013) (affirming dismissal of an “amended complaint [that] contained 25 counts, each without any legal or factual support…. followed by 109 paragraphs of factual allegations and sporadic, unexplained legal citations… [with] no logical connection between the conclusory statements of legal violations and the factual allegations… [where] [t]he amended complaint’s failure to link factual allegations to specific counts makes it a quintessential shotgun pleading [and]…. [a]s such, [] does not comply with Rule 8(a)[.]”). Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 6 of 23 PageID 1296 7 23. An Amended Complaint (as here) that “violate[s] the principles and letter of the Federal Rules [and that] presents a tangled web of conclusory accusations that frequently fail to correspond with any supporting facts” is improper. Stone v. Warfield, 184 F.R.D. 553, 555 (D. Md. 1999) (stating: “[t]his Court has not hesitated to require even pro se litigants to state their claims in an understandable and efficient manner. In Anderson v. University of Maryland School of Law, Chief Judge Motz dismissed, before service was effected, a pro se complaint against 69 defendants alleging a conspiracy to deny the plaintiff his constitutional rights. The Anderson court noted that it was dismissing the action instead of granting plaintiffs leave to amend their complaint to provide more particulars about their claim because their violation of Rule 8(a) is so egregious and because it is apparent that the inclusion of at least some of the defendants is so frivolous that the present action is not a proper channel for the assertion of any arguably meritorious claim which plaintiffs might have.”). 24. Even lesser, initial complaints, that fail to comply with Fed.R.Civ.P. 8(a), and that are 113 pages long, containing 179 numbered paragraphs, exclusive of scores of separate subparagraphs, that are disorganized, verbose and repetitious, repeatedly endlessly various stock phrases that convey no new meaning, and conclusory despite the enormous length and overabundance of detail, are properly dismissed. Vtech Holdings Limited v. Price Waterhouse Coopers, LLP., 2003 WL 21756623 *1 (S.D.N.Y. 2003). See also, In Re: Merrill Lynch & Co. Research Reports Sec. Litig., 218 F.R.D. 76 (S.D. N.Y. 2003) (granting Fed.R.Civ.P.8(a)(2) motion to dismiss amended complaint and dismissing 98 page 367 paragraph complaint where “[m]any of the allegations merely state the conclusions necessary to prevail on the merits and are unsupported by facts.”); United States v. National Treasury Employees Union, 86 F.R.D. Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 7 of 23 PageID 1297 8 496, 499 (W.D.Pa. 1980) (stating: “complaints have been dismissed under Rule 8(a) where they were found to be “a labyrinthian prolixity of unrelated and vituperative charges that defied comprehension,” Prezzi v. Schelter, 469 F.2d 691 (2nd Cir. 1972); “a euphoric harassment of (the defendants) . . . (t)otally obfuscated . . . (i)mpossible for any party or court to understand plaintiff’s alleged claim or damage,” Koll v. Wayzata State Bank, 397 F.2d 124 (8th Cir. 1968); “confusing, ambiguous, redundant, vague and, in some respects, unintelligible,” Wallach v. City of Pagedale, 359 F.2d 57 (8th Cir. 1966); and “so verbose, confused and redundant that its true substance, if any, is well disguised,” Corcoran v. Yorty, 347 F.2d 222 (9th Cir. 1965).”); Brown v. Califano, 75 F.R.D. 497 (D.C. 1977) (dismissing complaint that was a “confused and rambling narrative of charges and conclusions concerning numerous persons, organizations and agencies . . . . (containing) an untidy assortment of claims that are neither plainly nor concisely stated, nor meaningfully distinguished from bold conclusions, sharp harangues and personal comments.”). 25. Under any other standard for pleadings under Fed.R.Civ.P. 8, claims that are indiscernible in an amended complaint that is unintelligible are properly dismissed without leave to file any further amended complaint. Strunk v. United States House of Representatives, 68 Fed.App’x. 233, 234 (2d Cir. 2003). Accordingly, and because the 118 page, 209 paragraph, Amended Complaint [D.E. 118] violates every proscription and requirement under Fed.R.Civ.P. 8 and Twombly, Iqbal, Chapparo, Strunk, Stone, Vtech, In Re: Merrill Lynch, and Brown, this case should and must be dismissed with prejudice. TRUTH IN LENDING ACT (Count II) 26. Plaintiff alleges that SunTrust did not notify him of its 2013 transfer of the Mortgage to Christiana Trust within 30 days after the loan was sold or otherwise transferred. Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 8 of 23 PageID 1298 9 [D.E. 118 at ¶108]. 27. A close reading of Count II fails to allege any wrong-doing on the part of Christiana Trust. 28. As noted above, these are precisely the sort of “unadorned, the-defendant-has- harmed-me accusation[s]” that are not permitted under federal pleading standards. See Iqbal, 556 U.S. at 697. 29. Plaintiff’s Truth In Lending Act (“TILA”) claim against Christiana Trust fails as a matter of law. Christiana Trust moves to dismiss the TILA claim asserted against it (this count is also alleged against other Defendants as well) as Plaintiff fails to plead a claim under TILA as it is time-barred. Indeed, a borrower must bring an action under TILA within one year from the date the violation occurs. 15 U.S.C. § 1640(e); Smith v. Am. Fin. Sys., Inc., 737 F. 2d 1549, 1552 (11th Cir. 1984) (“Nondisclosure is not a continuing violation for purposes of the statute of limitations.” (citations omitted)). Sampson v. Wash. Mut. Bank, No. 11-11400, 2011 WL 4584780, at *2 (11th Cir. Oct. 5, 2011) (holding that the violation of TILA nondisclosure requirement cannot serve as grounds that merit tolling.”). 30. The Amended Complaint [D.E. 118], in Exhibit 9 shows that the assignment from SunTrust Bank to Christiana Trust was executed on January 28, 2013 (and recorded in the Official Records for Hernando County, Florida on March 4, 2013). [D.E. 118 at ¶ 71 and p. 118 (ex. 9)]. 31. This case was commenced on July 23, 2014, more than one year after the assignment to Christiana Trust and more than one year after the assignment was recorded in the public records. Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 9 of 23 PageID 1299 10 32. In addition to no claim being made against Christiana Trust, a simple computation shows that Plaintiff’s TILA claim against Christiana Trust is time-barred and his TILA claim against Christiana Trust 33. For the foregoing reasons, Count II should and must be dismissed with prejudice as to Christiana Trust. FAIR DEBT COLLECTION PRACTICES ACT REGARDING ASSIGNMENT DEFENDANTS (Count V) 34. Christiana Trust moves to dismiss Count V, for violations of the Fair Debt Collection Practice Act (“FDCPA”) for failure to state a claim. 35. Count V is a prolix series of allegations which are disjointed and nearly impossible for Christiana Trust to determine which allegations relate to it and which allegations relate to other Defendants. 36. Again, these are precisely the sort of “unadorned, the-defendant-has-harmed-me accusation[s]” that are not permitted under federal pleading standards. See, Iqbal, 556 U.S. at 697. 37. Plaintiff has alleged that Christiana Trust and others used deceptive and unlawful practices in the attempted collection of a debt. 38. However, Plaintiff lumps all of the Defendants in this Count into one category, the “Assignee Defendants.” [D.E. 118 at pp. 30-32]. 39. Plaintiff does not distinguish which of the Assignee Defendants did what specific act which allegedly violated of the FDCPA. He generally alleges that he sent the Assignee Defendants notice that he was disputing any debts claimed in the State Court Action, yet he does not specifically reference any letter to any specific Defendant. However, in Exhibit 7 to the Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 10 of 23 PageID 1300 11 Amended Complaint, Plaintiff attaches several letters to several different entities and individuals, yet not one of those letters is addressed to Christiana Trust. 40. Exhibit 7 has correspondence from Plaintiff to: a. SunTrust Bank - the mailing receipt appears to show a mailing date of 3/23/14. [D.E. 118 at p. 102]. b. Mortgage Electronic Registration System - the mailing receipt appears to show a mailing date of 3/23/14. [D.E. 118 at p. 103]. c. SunTrust Mortgage, Inc. - the mailing receipt appears to show a mailing date of 3/23/14. [D.E. 118 at p. 104]. d. SunTrust Mortgage, Inc. - the mailing receipt appears to show a mailing date of 3/23/14. [D.E. 118 at p. 105]. e. SunTrust Mortgage, Inc. - the mailing receipt appears to show a mailing date of 3/23/14. [D.E. 118 at p. 106]. f. Thorne & Associates, formerly known as Throne & Storey. - the mailing receipt appears to show a mailing date of 3/23/14. [D.E. 118 at p. 107]. g. Edward A. Storey, III, Esq. and Susan Delaney, Esq. - the mailing receipt appears to show a mailing date of 3/23/14. [D.E. 118 at p. 108]. h. Carrington Mortgage - Dated 10/12/13. [D.E. 118 at p. 109-111]. 41. Clearly, the Amended Complaint is devoid of any allegation or proof of correspondence to Christiana Trust. The Exhibits attached to the Amended Complaint contradict the allegations in the Amended Complaint that Christiana Trust failed to acknowledge Plaintiff’s “notice” as alleged in paragraph 65 in D.E. 118. 42. This Court “may examine the exhibits that are attached to the complaint when considering a Motion to Dismiss.” Hamilton v. State Farm Mut. Auto Ins. Co., 2013 WL 5231483 *2 (M.D. Fla., September 16, 2013) (citing Solis-Ramirez v. U.S. Dep’t of Justice, 758 F.2d 1426, 1430 (11th Cir. 1985)). “Generally, if the exhibits conflict with the allegations in the Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 11 of 23 PageID 1301 12 complaint, the exhibits control.” Id. (citing Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205- 06 (11th Cir. 2007)). 43. Here, because the Amended Complaint does not differentiate between Defendants and acts allegedly committed, that the exhibits attached to the Complaint contradict the allegations contained therein, the Amended Complaint should and must be dismissed with prejudice as to Christiana Trust. FLORIDA CONSUMER COLLECTION PRACTICES ACT REGARDING CREDITORS (Count VI) 44. In this Count, Plaintiff alleges that seven Defendants violated the Florida Consumer Collection Practices Act (“FCCPA”), Fla. Stat. § 559.55. et seq. [D.E. 118 at p. 33]. 45. As with other counts of the Amended Complaint, Plaintiff lumps these seven defendants together and does not allege which acts were done by which Defendant that might violate the FCCPA. 46. Once again, these are precisely the sort of “unadorned, the-defendant-has-harmed- me accusation[s]” that are not permitted under federal pleading standards. See, Iqbal, 556 U.S. at 697. 47. Plaintiff alleges that the Defendants named in this Count “attempted to assert rights on behalf of SunTrust Bank and to maintain an action against Deboskey when they knew that SunTrust had no right to bring the action in July of 2009 or maintain any action thereafter. [D.E. 118 at ¶ 149]. The Amended Complaint alleges that the basis for Count VI arise from the state court Foreclosure Case. [D.E. 118 at ¶ 149]. 48. Count VI should be dismissed because Plaintiff has not identified any actions taken by Christiana Trust which is related to this cause of action. Further, any actions taken by Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 12 of 23 PageID 1302 13 Christiana Trust are barred by the litigation privilege. Moreover, the relevant statute of limitations bars the claims brought in Count VI. 49. The Amended Complaint is drafted in such a way that none of the Defendants can determine what actions they may have committed which are in violation of the FCCPA. 50. It has been held that actions taken in a foreclosure action cannot serve as the basis for a FCCPA claim. See Warren v. Countrywide Home Loans, Inc., 342 Fed.App’x. 458, 460-61 (11th Cir. 2009); Cowan v. MTGLO Investors, L.P., 2010 WL 3791779 *4 (M.D. Fla. September 14, 2010)(explaining that foreclosing on a home is not collection of a debt pursuant to the FDCPA and thus, “one cannot state a claim under the FDCPA or FCCPA based on a foreclosure action.”); Trent v. Mortgage Elec. Registration Systems, Inc., 618 F. Supp. 2d 1356, 1360-61 (M.D. Fla. 2007). 51. Here, Plaintiff has failed to make any allegations as to what actions Christiana Trust (or other Defendants for that matter) took which were in violation of the FCCPA. Plaintiff’s failure to make such allegations are fatal to this Count. Deutsche Bank Nat. Trust Co. v. Foxx, 971 F. Supp. 2d 1106, 1114-15 (M.D. Fla. 2013) (dismissing FCCPA claim for failure to describe a defendant’s conduct which plaintiff claimed violated the FCCPA). Indeed, knowledge is required to be alleged, but it has not been. See Bentley v. Bank of America, N.A., 773 F. Supp. 2d 1376, 1373 (S.D. Fla. 20100) (holding that a claim for violations of the FCCPA fails absent specific factual allegations showing knowledge or intent as to each person who allegedly violated the statute). 52. Because this action is based on the underlying Foreclosure Case, Plaintiff’s claims in this count are also barred by the litigation privilege. Levin, Middlebrooks, Mabie, Thomas, Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 13 of 23 PageID 1303 14 Mayes, & Mitchell, P.A. v. United States Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994) (holding that “absolute immunity must be afforded to any act occurring during the course of a judicial proceeding . . . so long as the act has some relation to the proceeding.” Id.); Jackson v. BellSouth Telecomms, 372 F.3d 1250, 1277 (11th Cir. 2004); McMurray v. U-Haul Co., 425 So. 2d 1208, 1290 (Fla. 4th DCA 1983) 53. Here, Christiana Trust participated in the Foreclosure Case to pursue its assigned claims for mortgage reformation and mortgage foreclosure. See Trent, 618 F. Supp. 2d at 1360 (explaining that Florida’s litigation privilege “precludes communications attached to or made part of a foreclosure complaint from forming the basis of a FCCPA . . . claim.” Id.); see also, Green Leaf Nursery v. E.I. DuPont de Nemours & Co., 341 F.3d 1292, 1302-04 (11th Cir. 2003); Coursen v. JP Morgan Chase & Co., 2013 WL 5437341 *9 (M.D. Fla. September 27, 2015). 54. Additionally, Florida Statute § 559.72(4) provides a two year statute of limitations within which to make a claim. See Harrington v. RoundPoint Mortgage Servicing Corporation, 2016 WL 659331 *4 (M.D. Fla. February 18, 2016) (recognizing that “[u]nder the FCCPA, a debtor must commence a civil action within two years after the alleged violation.” (citing Fla. Stat. § 559.77(4)); See also Crossman v. Asset Acceptance, L.L.C., 2014 WL 2612031 *6 (M.D. Fla. June 11, 2014). As noted above, Plaintiff is claiming that the alleged violations of the FCCPA stem from the actions of the Defendants in the Foreclosure Case. [D.E. 118 at ¶ 149]. 55. The Foreclosure Case was filed on July 31, 2009. [D.E. 118 at ¶ 43]. This action was filed on July 23, 2014 [D.E. 1], nearly 6 years after the filing of the Foreclosure case. Because this action was commenced more than 2 years after the Foreclosure Case was filed, any claims under the FCCPA are beyond the applicable statute of limitation and should be dismissed Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 14 of 23 PageID 1304 15 with prejudice. 56. Based on the forgoing, Count VI should and must be dismissed with prejudice as to Christiana Trust. MALICIOUS PROSECUTION (Count VIII) 57. Plaintiff names all 27 Defendants in his claim for Malicious Prosecution. 58. As has become the case throughout the Amended Complaint, the Plaintiff has failed to specify what acts, if any, were done by which Defendant and the role(s) they may or may not have played in the Foreclosure Case. 59. In Florida, the elements of a malicious prosecution claim are: a. An original criminal or civil proceeding against the present plaintiff was commenced or continued; b. The present defendant was the legal cause of the original proceeding against the present plaintiff; c. The termination of the original prosecution constituted a bone fide termination of that proceeding in favor of the present plaintiff; d. There was an absence of probable cause for the original proceeding; e. There was malice on the part of the present defendant; and f. The plaintiff suffered damages as a result of the original proceeding. Alamo Rent-A-Car, Inc. v., Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994). 60. Yet again, these are precisely the sort of “unadorned, the-defendant-has-harmed- me accusation[s]” that are not permitted under federal pleading standards. See, Iqbal, 556 U.S. at 697. 61. In Count VIII, Plaintiff does not differentiate the conduct of any of the defendants, let alone specify what Christiana Trust may have done. Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 15 of 23 PageID 1305 16 62. In fact, aside from being identified in the introductory paragraph to Count VIII (along with every other Defendant) there is not a single allegation which names Christiana Trust in this Count. 63. In order prevail in a malicious prosecution action, the plaintiff must establish each of the six elements. See Olson v. Johnson, 961 So. 2d 356, 359 (Fla. 2d DCA 2007) (citing Durkin v. Davis, 814 So. 2d 1246, 1248 (Fla. 2d DCA 2002)). 64. Plaintiff has failed to adequately allege all six elements are present as it relates to Christiana Trust. Importantly, Plaintiff has not properly alleged that Christiana Trust had actual malice or a lack of probable cause to prosecute the case. 65. In the Foreclosure Case, the plaintiff there voluntarily dismissed the action without prejudice. [D.E. 118 at ¶ 77], see also [D.E. 140-6, Notice of Voluntary Dismissal]. As a result, the voluntary dismissal without prejudice in the Foreclosure action did not result in a judgment in favor of Plaintiff here. Della-Donna v. Nova University, Inc., 512 So. 2d 1051, 1055 (Fla. 4th DCA 1987) (explaining that termination which was not based on the merits or probable cause for prosecution was not a bona fide termination favorable to plaintiff in a malicious prosecution action). A voluntary dismissal is not a decision on the merits. Chassan Professional Wallcovering, Inc. v. Victor Frankel, Inc., 608 So. 2d 91, 93 (Fla. 4th DCA 1992) (explaining that a voluntary dismissal without prejudice is not an adjudication on the merits). 66. Further, Florida’s litigation privilege precludes Plaintiff’s claims for malicious prosecution. 67. For the foregoing reasons Count VIII should and must be dismissed with prejudice as to Christiana Trust. Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 16 of 23 PageID 1306 17 RACKETEERING INFLUENCED AND CORRUPT ORGANIZATIONS ACT (Count IX) 68. Plaintiff, in Count IX attempts to allege violations of the Racketeering Influenced and Corrupt Practices Act (“RICO”). 69. In order to bring a RICO action, a Plaintiff must allege: 1) conduct, 2) of an enterprise, 3) through a pattern, 4) of racketeering activity. See Rogers v. Nacchio, 241 Fed.App’x. 602, 607 (11th Cir. 2007); Littlejohn v, Citimortgage Inc., 2016 WL 1638237 at n. 6 (M.D. Fla. February 3, 2106); Ironworkers Local Union No. 68 v. AstraZeneca Pharmaceuticals LP, 585 F. Supp. 2d 1339, 1343 (M.D. Fla. 2008). Further, in civil actions, pursuant to 18 U.S.C. § 1964(c), a plaintiff must also establish the requisite injury to business or property and that such injury was by reason of the substantive RICO violation. Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1282-83 (11th Cir. 2006). 70. Plaintiff, without specificity, failed to properly allege a RICO claim against any of the Defendants. 71. As with every other count, these are precisely the sort of “unadorned, the- defendant-has-harmed-me accusation[s]” that are not permitted under federal pleading standards. See, Iqbal, 556 U.S. at 697. 72. The “predicate acts” that Plaintiff alleges are the RICO conspiracy are really acts related to the Foreclosure case. Plaintiff alleges fifty-seven (57) predicate acts. [D.E. 118 at ¶ 187, PA1 - PA57]. These “predicate acts” are a really just a recitation of the events and timeline from the underlying Foreclosure Case. 73. Despite pleading what Plaintiff claims are predicate acts, he has not, because he cannot, establish the existence of the requisite “enterprise.” Acosta v. Campbell, 2006 WL Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 17 of 23 PageID 1307 18 146208 *6 (M.D. Fla. January 18, 2006) (explaining that “an enterprise is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.”) (quoting Williams, 411 F.3d at 1257-58) (other citations omitted). Indeed, “[t]he definitive factor in determining the existence of a RICO enterprise is the existence of an association of individual entities, however loose or informal, the furnishes a vehicle for the commission of two or more predicate crimes, that is the pattern of racketeering activity requisite to the RICO violation.” Id. (citations omitted). 74. Importantly, Plaintiff fails to plead the specific facts necessary that there was an enterprise or agreement between the Defendants to violate the law or otherwise violate RICO. Additionally, Plaintiff does not allege any injury to business or property that was a result of the alleged RICO violations. 75. Plaintiff does not, because he cannot, allege that any of the Defendants, especially Christiana Trust, were engaging in any unlawful enterprise. To the contrary, the predicate acts alleged by Plaintiff indicate that the Defendants were only prosecuting a legitimate foreclosure action in state court. 76. Plaintiff alleges that the Defendants, including Christiana Trust, communicated with other “by way of mail, wire, [and] electronic mail communications during prosecution of the unlawful State Court Foreclosure Action. [D.E. 118 at ¶ 185]. To establish liability under the federal mail and wire fraud statutes, Plaintiff must prove that: 1) defendants knowingly devise or participated in a scheme to defraud the plaintiff; 2) they did so willingly with intent to defraud; and 3) that the defendants used the U.S. Mail or the interstate wires for the purpose of executing the scheme. Langford v. Rite Aid of Ala., Inc., 231 F.3d 1308, 1312 (11th Cir. 2000). Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 18 of 23 PageID 1308 19 77. Because the Plaintiff attempts to allege conduct that sounds in fraud, he must also meet the heightened pleading requirements of Fed.R.Civ.P. 9(b). In pleading fraud, the rule requires that the plaintiff “state with particularity the circumstances constituting fraud. . . .” Fed.R.Civ.P. 9(b). This Court has also recognized that in the RICO context, “Rule 9(b) requires the plaintiff to allege ‘(1) the precise statements, documents, or misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the context and manner in which these statements misled the [p]laintiff[]; and (4) what the defendants gained from the alleged fraud.’” Gillis v. Deutsche Bank Trust Co. Americas, 2015 WL 1345309 *4 (M.D. Fla. March 23, 2015) (quoting Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir. 2010) (citations and quotations omitted)). 78. In the instant case, Plaintiff’s attempt at pleading a RICO claim fails miserably. He has not, because he cannot, alleged the specificity necessary under Rule 9. 79. Also, Plaintiff has not alleged that he relied on any alleged misrepresentations. 80. For the foregoing reasons, Count IX should be dismissed with prejudice as to Christiana Trust. PLAINTIFF IS NOT ENTITLED TO ATTORNEY’S FEES 81. Throughout the Amended Complaint, Plaintiff alleges that he “is seeking to retain an attorney to prosecute this civil case. Engaging the services of counsel requires Plaintiff to obligate himself to pay a reasonable fee for such services, and constitutes and additional item of damage and cost recoverable in this action.” [D.E. 118 at ¶¶ 96, 111, 121, 131, 141, 152, 163, 173, and 208]. Further, Plaintiff also seeks the recovery of attorney’s fees in other paragraphs in the Amended Complaint. [D.E. 118 at ¶¶ 97, 112, 122, 132, 142, 153(d), 164(h) [sic], 174(e), Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 19 of 23 PageID 1309 20 209]. Lastly, Plaintiff in his Request for Relief seeks “his reasonable attorney’s fees.” [D.E. 118 at p. 62]. 82. No allegation is made that Plaintiff is an attorney. Moreover, the Amended Complaint clearly indicates that he has not yet retained an attorney or that an agreement is in place for the payment of fees. Nor is any statute or law cited that could provide a legal basis for the recovery of any attorneys’ fees for any of the claims alleged in the Amended Complaint. All of the claims for Plaintiff’s attorney’s fees should, therefore, be dismissed or stricken. Resmondo v. New Hampshire Insurance Company, 2013 WL 6894857*1 (M.D.Fla. 2013) (granting defendant’s motion to strike plaintiff’s claims for attorney’s fees and stating: “under Florida law, a court may grant a motion to strike a demand for attorney's fees, where the Plaintiff fails to plead a contractual or statutory basis or none exists. See id.; City of Winter Garden v. State ex rel. Wood, 311 So. 2d 396 (Fla. 4th DCA 1975) (reversing lower court's denial of motion to strike attorney's fees.)”). 83. It should be noted that Plaintiff has a motion for fees currently pending in the Foreclosure Case, so any request for fees he may have paid to an attorneys for fees incurred in the Foreclosure Case are properly being addressed in that court. 84. Accordingly, Plaintiff’s request for fees and costs should be stricken or dismissed. CONCLUSION 85. Based on the foregoing, Plaintiff’s Amended Complaint [D.E. 118] against Christiana Trust fails to state a cause of action. Further, it contains pleading deficiencies that warrant dismissal of the Amended Complaint with prejudice. Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 20 of 23 PageID 1310 21 WHEREFORE, Defendant, CHIRSTIANA TRUST, A DIVISION OF WILMINGTON SAVINGS FUND SOCIETY, FSB, AS TRUSTEE FOR STANWICH MORTGAGE LOAN TRUST, SERIES 2012-2013 respectfully requests that the Court enter and Order dismissing Counts II, V, VI, VIII and IX as against Christiana Trust with prejudice and for such other relief this court deems just and proper. Respectfully submitted this 4th day of August, 2016. /s/Franklin G. Cosmen, Jr. Franklin G. Cosmen, Jr. Fla. Bar No. 089214 Lars Bodnieks Fla. Bar No. 888265 Quintairos, Prieto, Wood & Boyer, P.A. 9300 S. Dadeland Blvd., 4th Floor Miami, FL 33156 305-670-1101 305-670-1161 Facsimile Email: fcosmen@qpwblaw.com lbodnieks@qpwblaw.com Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 21 of 23 PageID 1311 22 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 4, 2016, I electronically filed the foregoing document with the Clerk of Court using CM/ECF. I also certify that a true and correct copy of the foregoing document was furnished electronically via the Court’s CM/ECF system on all counsel of record or pro se parties in the attached service list in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized matter for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. _/s/ Franklin G. Cosmen, Jr. _________________ Franklin G. Cosmen, Jr. Fla. Bar No. 089214 Lars Bodnieks Fla. Bar No. 888265 Attorneys for Christiana Trust, a Division of Wilmington Savings Fund Society, FSB, as Trustee for Stanwich Mortgage Loan Trust, Series 2012-13 Quintairos, Prieto, Wood & Boyer, P.A. 9300 S. Dadeland Blvd., 4th Floor Miami, FL 33156 305-670-1101 305-670-1161 Facsimile Email: fcosmen@qpwblaw.com lbodnieks@qpwblaw.com Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 22 of 23 PageID 1312 23 SERVICE LIST William P. DeBoskey 27035 Old Spring Lake Road Brooksville, FL 34602 deboskey@bellsouth.ner Pro se Plaintiff Via CM/ECF Alexandra de Alejo, Esq. Gray Robinson, P.A. 1221 Brickell Avenue, Suite 1600 Miami, FL 33131 Alexandra.dealejo@gray-robinson.com Counsel for SunTrust Bank, SunTrust Mortgage, Inc., MERS, Terry G. King, and Tomar Hill Via CM/ECF David S. Hendrix, Esq. Gray Robinson, P.A. 401 East Jackson Street, Suite 2700 Tampa, FL 33602 David.hendrix@gray-robinson.com Counsel for SunTrust Bank, SunTrust Mortgage, Inc., MERS, Terry G. King, and Tomar Hill Via CM/ECF R. Carter Burgess, Esq. McGlinchey Stafford, PLLC 10407 Centurian Parkway N., Ste 200 Jacksonville, FL 32256 cburgess@mcglinchey.com Counsel for Carrington Mortgage Services, LLC Via CM/ECF Thomas R. Yaegers, Esq. Akerman Senterfitt, LLP 420 S. Orange Avenue, Suite 1200 P.O. Box 231 Orlando FL 32802-0231 Thomas.yeagers@akerman.com Attorneys for Storey Law Group, P.A. Edward A. Storey, III, Suzanne Victoria Delaney and Christian Justin-Gendreau Via CM/ECF Case 8:14-cv-01778-MSS-TGW Document 143 Filed 08/04/16 Page 23 of 23 PageID 1313