Echeverria vs Bank of America Opposition to Magistrate Report & Recommendation

8/11/2019 Echeverria vs Bank of America Opposition to Magistrate Report & Recommendation

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UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ABDIEL ECHEVERRIA and

ISABEL SANTAMARIA

Plaintiffs, CASE NO: 6:14-cv-00486-JA-GJK

BANK OF AMERICA, N.A., URBAN

SETTLEMENT SERVICES d/b/a URBANLENDING SOLUTIONS and CARLISLE & GALLAGHER

CONSULTING GROUP, INC.

Defendants,

_____________________________/

PLAINTIFFS OPPOSITION TO MAGISTRATE JUDGE GREGORY J. KELLYS

REPORT AND RECOMMENDATION (DOC. 68)

Pursuant to Fed. R. Civ. P. 72(b) and Local Rule 6.02, Plaintiffs respectfully object to the

Magistrate Judge Gregory J. Kellysreport and recommendation (R&R) (Doc. No. 68) filed

September 23, 2014 and received by the Plaintiffs on September 25, 2014.

INTRODUCTION

The Honorable Magistrate Judge Gregory J. Kelly not only erred in recommending that

the Court grant all named Defendant Motions to Dismiss (Doc.25, 28, & 31) and close the

Plaintiffs claims based on the erroneous grounds of res judicatabut it should also be noted that

Magistrate Judge Gregory J. Kelly has demonstrated a clear and convincing bias and prejudice


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against the Plaintiffs mainly due to a conflict of interest in this current case for the reasons that

will be more fully expressed below.

STANDARD OF REVIEW

The district judge reviews a magistrate judges report and recommendation de novo. Fed.

R. Civ. P. 72(b)(3). The district judge may accept, reject, or modify the recommended

disposition; receive further evidence; or return the matter to the magistrate judge with

instructions. Id.

The Supreme Court stated that the authority grantedto magistrate judges under the

Federal Magistrates Act is to be construed narrowly.U.S. v. Desir, 257 F.3d 1233, 1236 (11th

Cir. 2001). When a party files timely written objections to a magistrate judge's report, the district

court must "make a de novodetermination of those portions of the report or specified proposed

findings or recommendations to which objection is made." 28 U.S.C. 636(b)(1)(C); see also

Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.1991)("De novo review is statutorily and

constitutionally required...."). Furthermore, the magistrate judges order is notfinal. See Title

28 U.S.C. 636 (b),(c) & 1291; andPerez-Prego v. Alachua County Clerk of Court,148 F. 3d

1272, 1273 (11th Cir. 1998).

Any party is free to withhold consent to magistrate judge jurisdiction without adverse

consequences. 28 U.S.C. 636(c)(2); Rule 73(b), Fed.R.Civ.P.;Andersonv. Woodcreek Venture

Ltd., 351 F.3d 911, 913-14 (9th Cir. 2003) (pointing out that consent is the "touchstone of

magistrate judge jurisdiction" under 28 U.S.C. 636(c). A party to a federal civil case has,

subject to some exceptions, a constitutional right to proceed before an Article III judge.Dixon

v. Ylst, 990 F.2d 478, 479 (9th Cir. 1993) (citing Pacemaker Diagnostic Clinic of Am. Inc. v.

Instromedix, Inc., 725 F.2d 537, 541 (9th Cir. 1984) (en banc)).


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Because a District Judge conducting a de novoreview of objections to a Magistrate

Judges findings and conclusions may consider the entire record including the exhibits and

judicial notices, the arguments that plaintiffs sought to raise in their reply should also be

considered.

For the sake of brevity, the Plaintiffs do not copy and reargue all their arguments below

but incorporate the prior pleadings into this opposition.

ARGUMENT

A. Magistrate Judge Gregory J. Kelly Has A Conflict Of Interest In The Current Case.

For centuries, impartiality has been a defining feature of the American judges role in the

administration of justice. The reason is clear: in a constitutional order grounded in the rule of

law, it is imperative that judges make decisions according to law, unclouded by personal bias or

conflicts of interest. Accordingly, upon ascending the bench, every federal judge takes an oath to

faithfully and impartially discharge and perform all the duties of judicial office1; and the Due

Process Clause of the Fourteenth Amendment to the United States Constitution has been

construed to guarantee litigants the right to a neutral and detached, or impartial, judge2.

In this current action, the Plaintiffs face such an issue. First, and foremost, the Report

and Recommendation [Doc. 68] issued by Magistrate Judge Gregory J. Kelly completely evades

and simply does not address in any manner the Plaintiffsallegations of fraud and misconduct

committed by the defendants in prior litigation (see Fed. R. Civ. P. Rule 60(b)). Many times

throughout the Plaintiffs pleadings and responses, they have alleged that the Defendants

128 U.S.C. 453.2Ward v. Village of Monroeville, 409 U.S. 57 (1972).


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committed fraud during prior litigation3. This allegation of fraud has NEVER been a claim raised

by the Plaintiffs in any prior claim and therefore would be a NEW claim in this current case.Res

judicatawould not bar a new claim for fraud that took place AFTER any previous claim.

The United States Supreme Court has stated for at least ninety years that only in the

absence of fraudor collusion does a judgment from a court with jurisdiction operate as res

judicata.Riehle v. Margolies, 279 U.S. 218, 225 (1929). Given the fact that the Defendants

committed fraud against the Plaintiffs and this Court in prior litigation [see Doc. 60, 45-55,

166-172) any prior judgment would not be a factor and would not impede this case from

proceeding to trial. The Plaintiffs have consistently asserted this argument, among others, in

numerous responses and in their complaints.

However, there are multiple reasons for which it is very likely that the Honorable

Magistrate Judge Gregory J. Kelly refused to even mention this fraud argument in his Report: 1).

Plaintiffs allegations of fraud and misconduct by defendants in prior litigation would dismantle

any res judicatadefense and allow the current action to proceed and 2). Magistrate Judge

Gregory J. Kelly was a former attorney with Akerman Senterfitt4, the law firm who

represented Defendant Bank of America in both prior lawsuits and therefore may implicate his

former employer and colleagues5.

In this current action, the Plaintiffs have specifically filed documents that were signed by

Akerman Senterfitt attorneys (See Judicial Notices Doc. 40 & 57). This may directly implicate

Defendant Bank of Americas attorneys (Akerman Senterfitt) in prior litigation against the

Plaintiffs in this current action. This also goes to show that Magistrate Judge Gregory J. Kelly

3See Doc. 37, 38, 39, 40, 47, 52, 53, 54, 57, 65 & 67.4The Honorable Magistrate Judge Gregory J. Kelly was working in the Orlando office of Akerman Senterfitt until

January 11, 2008.5See Case no. 6:10-cv-01933-JA-DAB, Doc. 9.


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did not even look at the Plaintiffs exhibits in this currentcase even when making his Report and

Recommendation because if he would have done so, he would have not only noticed different

evidence from any prior case but also multiple exhibits filed in this current case6 as Judicial

Notices signed by Akerman Senterfitt attorneys. His former employers representation is still

at issue in this current case7.

Furthermore, magistrate Kelly makes his Report exclusively in favor of all named

defendants even though Defendant BANA did not even oppose the Plaintiffs Second Motion for

Leave to file Amended Complaint (Doc. 608). This odd behavior by Defendant BANA, who is

one of Akerman Senterfitts most represented and profitable clients, is very suspicious and would

leave an average person to believe that Defendant BANA was already aware that this current

action would somehow be wrongfully dismissed. The lack of response to Plaintiffs emails for

three weeks and withholding names in their initial disclosures by Defendant BANA shows

complete lack of concern for a case that is supposed to be in discovery and already referred to

mediation9. This is all very concerning behavior and any reasonable person can see that there

is biased behavior in favor of defendant BANA on behalf of Magistrate Judge Gregory J. Kelly

which would explain BANAs odd and nonchalant demeanor10

.

If the tables were turned, would the Echeverrias (Plaintiffs) have received the same

leniency over and over again as the criminal defendants in this case?

6See Judicial Notices, Doc. 40 & 57.7At the motion-to-dismiss stage, we consider the facts derived from a complaints exhibits as part of the plaintiffs

basic factual averments. See Solis-Ramirez v. U.S.Dept of Justice, 758 F.2d 1426, 1430 (11th Cir. 1985) (percuriam). See also Fed. R. Civ. P. 10(c). 8 In the Plaintiffs Proposed Second Amended Complaint(Doc. 60, 46, 47, 48, 49, 50, 53, 54, 55, the Plaintiffs

bring upon an independent Rule 60(b) cause of action that represents a direct attack on the prior fraudulent

Judgment(s) of this Court. The practical effect of Fed.R.Civ.P. 60(b) is to lift the bar of res judicata in, e.g., fraud

cases. See Woodrum v. Southern Ry. Co., 750 F.2d 876, 883 (11th Cir. 1985).9See Doc. 59.

10At the time that this Opposition is filed, the Plaintiffs have already submitted their Expert Witness Reportto the

Defendants. This case is currently in discovery and referred to mediation. So far, none of the Defendants have

submitted any additional discovery documents except their initial disclosures.


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Due to the extreme biased nature and conflict of interest which is clearly demonstrated by

Magistrate Judge Gregory J. Kelly in this current action11

, his Report and Recommendation must

be vacated in its entirety.

B. The Magistrate Judge Disregarded the Plaintiffs Exhibits and Judicial Notices.

([W]hen the exhibits contradict the general and conclusory allegations of the pleading,

the exhibits govern. (citingAssoc. Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir.

1974)). At the motion-to-dismiss stage, we consider the facts derived from a complaints

exhibits as part of theplaintiffs basic factual averments12

. See Solis-Ramirez v. U.S. Dept of

Justice, 758 F.2d 1426, 1430 (11th Cir. 1985) (per curiam). In evaluating the Motion, the facts

stated in . . . [the] complaint and all reasonable inferences there from are taken as true. Stephens

v. Dept. of Health and Human Servs. 901 F.2d 1571, 1573 (11th Cir.1990).

In making his Report and Recommendation, not once did Magistrate Judge Kelly refer to

the Plaintiffs exhibits which include compelling NEW evidence of Plaintiffs NEW claims

including their claims of on-going fraud which includes fraud committed against them during

prior litigation.

Not once did Magistrate Judge Kelly refer to any of the Plaintiffs Judicial Notices that

include computer entries [Doc. 55] which proves how the Plaintiffs records were manipulated

by the Defendants as part of this fraudulent scheme as the Plaintiffs have claimed in their

complaints. Judge Kelly also refused to address this claim in which the Plaintiffs have alleged

these new claims. The Plaintiffs gladly invite the Court to view all prior records to see if these

11See 28 U.S. Code 455 - Disqualification of justice, judge, or magistrate judge.

12See Fed. R. Civ. P. 10(c).


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computer entries [Doc. 55] have ever been entered into evidence into a prior case involving the

Plaintiffs.

Judge Kelly also did not address the Bloomberg investigation that the Plaintiffs submitted

as Exhibit A attached to all of their complaints [Doc. 2, 47 & 60] in which the Plaintiffs in this

case were featured in this investigation. During this investigation, the Plaintiffs became aware of

Bank of Americas FARCE Office of The CEO and Presidentand how Bank of America

used this fraudulent office staffed with fraudulent companies who were contracted to mislead the

Plaintiffs and governmental agencies as a decoy and to perpetrate a fraudulent scheme, and this

is what this suit is about, NOT about a loan modification. The Plaintiffs have no desire in an

artifice loan modification that never existed in the first place and that was only used to lure them

into default and foreclosure. The Plaintiffs damages are beyond repair and a faulty loan

modification will not repair these severe issues. In addition, you cannot modify fraud.

As mentioned earlier, there are exhibits filed in this current action that clearly show that

the Defendants concealed necessary defendants, facts and evidence in prior litigation. The

Plaintiffs have not only alleged these NEW claims in their complaints, objections and responses

but have submitted these exhibits in the form of Judicial Notices to substantiate their claims13

.

Nonetheless, Judge Kelly did not address these exhibits or anything related to the Plaintiffs

claims regarding fraud and misconduct during prior litigation by the defendants.

In page 4 of Judge Kellys R&R, he citesPiper Aircraft Corp,. 244 F.3d 1289, 1296 (11th

Cir. 2001)..Next, the Court determines whether the claim in the new suit was or could have

been raised in the prior action, if the answer is yes, res judicataapplies. The answer is a

resounding NO. Clearly, if Judge Kelly would have seen the exhibits filed in this case and would

have read the Plaintiffs complaints in this current case, which does not have to do with the

13See Judicial Notices Doc. 40 & 57.


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failure in acquiring a loan modification, he would have realized that is was impossible for the

Plaintiffs to have brought these current claims in any prior action especially when the Defendants

were concealing material facts and other evidence that was crucial for the Plaintiffs claims.

Judge Kelly also brushes off the fact that Plaintiffs have failed to show on-going fraud

even though they have pled so in their complaints and have recently filed more evidence of

fraudulent interactions with the OCC and false statements by Bank of Americas own

spokesperson Dan Frahm regarding the Plaintiffs in the Bloomberg investigation in which he

falsely stated that the Plaintiffs never submitted documents to the Defendants14

.

The Plaintiffs have also submitted evidence in this Court regarding fraudulent loan

modification offers through a third party named JMA in 201315

which Bank of America utilized

to offer the Plaintiffs a loan modification which we all know does not exist; a deed I lieu of

foreclosure or a short sale and a fraudulent collection of the alleged debt. The Plaintiffs disputed

the debt under the Fair Debt Collection Practices Act and Bank of America never complied

with this dispute. Plaintiffs also alleged in their complaints how defendant BANA contracted

Safeguard to repeatedly harass the Plaintiffs16. These were all scenarios that were fraudulently

placed upon the Plaintiffs in which they should not have been in the first place. Before this

scheme started, the Plaintiffs were not in default even though they needed assistance and they

trusted that Defendant BANA, who received billions in tax payer bailout money, would assist

them. Instead, they were targeted and were the victims of this scheme perpetrated by ALL named

Defendants. Nonetheless, Defendant BANA did not address these new claims regarding events

that happened in 2013 in their Motion to Dismiss [Doc. 31] or in any of their responses and

14See Exhibit F filed with Plaintiffs Second Amended Complaint (Doc. 60) for full written interaction of the

Plaintiffs with the OCC regarding the Defendants in 2014 and Exhibit A also filed with Doc. 60.15See Plaintiffs Second Amended Complaint Doc. 60 72-75 and Exhibits B & C filed with Second Amended

Comp.16See Plaintiffs Second Amended Complaint Doc. 60 76 & 77.


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Judge Kelly also refused to address these new on-going events along with the exhibits that

happened AFTER prior litigation in his Report.

It is clear that the Honorable Magistrate Judge Gregory J. Kelly did not review or even

briefly look at the Plaintiffs exhibits filed in this case before making his Report and

Recommendation which is a necessary requirement before granting a motion to dismiss.

C. The Magistrates Report and Recommendation Errs In Recommending That The

Court Dismiss The Plaintiffs Current Case On The Grounds Of Res Judicata17

.

The Magistrates Report and Recommendation (R&R), asserts that Plaintiffs lawsuit is

based on the same nucleus of facts, a statement which attempts to nullify the new

misrepresentations of the current lawsuit itself. These statements are designed to confuse the

Plaintiffsstatements to the District Court Judge and create the impression that the complaint is

based merely on a loan modification and on the servicing of a loan which is a misguided

narrow concept. The Magistrates Report [Doc. 68]misconstrues and diminishes the Plaintiffs

evidence and allegations of fraud committed by the Defendants, not only in other instances after

litigation but also during prior litigation. Magistrate Judge Kelly mistakenly interprets the

doctrine of res judicataas precluding Plaintiffs current claimsfor the reasons stated below.

1. Fraud committed in prior litigation will not bar Plaintiffs current claims.

17In Coon v. Georgia Pacific Corporation, 829 F.2d 1563 (11th Cir. 1987), this Court reasoned that a district court

was not improper in refusing to consider a plaintiffs unpled claims, even though those same claims had been

included in her brief and discovery requests (emphasis added).


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As stated previously,.. only in the absence of fraud18

or collusion does a

judgment from a court with jurisdiction operate as res judicata.Riehle v. Margolies, 279 U.S.

218, 225 (1929). Again, Judge Kelly did not remotely address this issue which Plaintiffs have

consistently claimed in their pleadings and have even added it as a cause of action in their

Second Amended Complaint19

. The Plaintiffs have also addressed this fraud in their Responses

to all named Defendants oppositions to their motions for leave to file an amended complaint20

.

None of the Defendants addressed the evidence of fraud committed during discovery with

notarized documents signed by BANAs litigation specialists and signed and submitted to the

Plaintiffs by Akerman Senterfittattorneys

21

which ultimately mislead the Plaintiffs.

In addition to what the Plaintiffs have already alleged in their complaints, Defendant

BANAs Motion for Summary Judgment (submitted by Akerman Senterfitt attorneys) for

Echeverria I(Case 6:10-cv-01933-JA-DAB) was obtained fraudulently and BANA even went as

far as asserting this statement in their Motion for Summary Judgment after all the fraud

committed during litigation [Case 6:10-cv-01933-JA-DAB, Doc. 57, pg. 3]:

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party (BANA)

18FRCP Rule 60(b) provides that the court may relieve a party from a final judgment and sets forth the following six

categories of reasons for which such relief may be granted: (1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly-discovered evidencewhich by due diligence could not have been discovered in time to move for a

new trial under Rule 59; (3) fraud, misrepresentation, or misconduct by an adverse party; (4) circumstancesunder which a judgment is void; (5) circumstances under which a judgment has been satisfied, released, or

discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer

equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the

operation of the judgment. F.R.C.P. Rule 60(b)(1)-(b)(6). To be entitled to relief, the moving party must establish

facts within one of the reasons enumerated in Rule 60(b).

19See Sec. Amend. Comp. Doc. 60, 166- 172 .20See Doc. 52, 53, 54.21See Judicial Notice, Doc. 57, Exhibit B.


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bears the burden of establishing that no genuine issues of material fact remain .

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Defendant BANA misguided the Court to rule in their favor. Many issues of material

facts did remain and were concealed from this Court and the Plaintiffs.

2. Newly discovered evidence will not bar Plaintiffs current claims .

It is an elementary principle of res judicatathat a judgment in a prior action does not

have preclusive effect over matters that could not have been litigated in that action. See Fla. Jur.

2d Judgments & Decrees, 139; cf.Lobato-Bleidt v. Lobato, 688 So.2d 431, 434 (Fla. 5th DCA

1997).

Identity of the causes of action is established only when the facts or evidence necessary

to maintain the suit are the same in both actions.Leahy v. Batmasian, 960So. 2d 14, 17-18

(Fla. 4th DCA 2007), rev. denied, 969 So. 2d 1013 (Fla. 2007) (quoting Tyson v. Viacom, Inc.,

890 So. 2d 1205, 1209 (Fla. 4th

DCA 2005)). This current actions has NEW evidence and

involves the revelation of necessary parties and misrepresentation of a farce Bank of America

Office of the CEO and President which was staffed by unqualified personnel of these

necessary parties Urban and Carlisle & Gallagher.

The Plaintiffs have already established the numerous exhibits filed with the complaint

and as Judicial Notices that were never part of any prior action. Many of these exhibits contain

information that became relevant due to an investigation in 2013 that revealed the scam

perpetrated by all named defendants against the Plaintiffs and could not have possibly been

known before especially since Bank of America purposely withheld information during


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discovery in their interrogatories and in their production of documents22

. In addition, many of

these exhibits were acquired AFTER litigation and as recent as 2013 and 2014. The Plaintiffs

could not have possibly known during prior litigation of mailings and on-going fraud before it

actually happened. Nevertheless, all defendants did not address any of the Plaintiffs exhibits in

their Motion to Dismiss and neither did Judge Kelly in his Report and Recommendation. In order

to dismiss Plaintiffs complaint, it is to be assumed that the Defendants and Magistrate Judge

Kelly would have addressed the Plaintiffs entire complaint given the fact that the exhibits are

indeed part of the complaint itself23

.

In addition, Plaintiffs have already alleged numerous times that the Defendants have

committed fraud and misconduct against them in prior litigation for which they have already

submitted some exhibits to substantiate their claims. The Plaintiffs have referred to FRCP 60(b)

which also states: FRCP Rule 60(b) provides that the court may relieve a party from a final

judgment and sets forth the following six categories of reasons for which such relief may be

granted: (2) newly-discoveredevidencewhich by due diligence could not have

been discovered in time to move for a new trial under Rule 59. It is clear that the Plaintiffs

could not have discovered this evidence in time, when even conducting discovery and

investigations, the Defendants concealed material facts, evidence and necessary defendants and

actually lied about it in notarized discovery documents. There was no reason at the time for the

Plaintiffs to believe for these documents under oath to be untruthful.

Because neither the Magistrate Judge nor defendants have offered any explanation of the

aforementioned regarding the newly discovered evidence, the record does not support the

22See Judicial Notice, Doc. 57.23See Rule 10(c) of the Federal Rules of Civil Procedure.


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Magistrate Judges conclusion that thePlaintiffs claims should be dismissed on the grounds of

res judicata.

3.Res judicata

extends only to the facts and conditions as they existed at thetime the judgment was rendered.

District courts have thus held that a factual issue on which preclusion is sought must be

identical to one actually decided and a necessary part of the prior determination24

.

Goodman v. Aldrich & Ramsey Enters., Inc., 804 So. 2d 544, 546-47 (Fla. 2d DCA 2002); see

alsoAcadia Partners, L.P. v. Tompkins, 673 So. 2d 487, 489 (Fla. 5th DCA 1996);Allstate Ins.

Co. v. A. D. H., Inc., 397 So. 2d 928, 929-31 (Fla. 3d DCA 1981). It is clear that the factual

issues in any prior case are very different to this case and the facts of this case were not the same

to determine any prior judgment which was fraudulent obtained to begin with.

It is an elementary principle of res judicatathat a judgment in a prior action does not

have preclusive effect over matters that could not have been litigated in that action. See Fla. Jur.

2d Judgments & Decrees, 139; cf.Lobato-Bleidt v. Lobato, 688 So.2d 431, 434 (Fla. 5th DCA

1997). The doctrine ofres judicata doesnot however bar a cause merely because the actions

arose from the same factual situation Identity of the causes of action25

is established where

the facts26

which are required to maintain both actions are identical. Cole v. First Dev. Corp.

Of Am., 339 So.2d 1130, 1131 (Fla.App. 2 Dist.1976); Wu v. Thomas, 863 F.2d 1543, 1548-49

(11th Cir. 1989).

24

Identity of the causes of action is established only when the facts or evidence necessary to maintain the suit arethe same in both actions.Leahy v. Batmasian, 960 So. 2d 14, 17-18 (Fla. 4th DCA 2007), rev. denied, 969 So. 2d

1013 (Fla. 2007) (quoting Tyson v. Viacom, Inc., 890 So. 2d 1205, 1209 (Fla. 4 thDCA 2005)).25Plaintiffs have also asserted new causes of actions including Breach of Fiduciary Dutyin which Plaintiffs have

never claimed before. See Sec. Amen. Comp. Doc. 60, 62, 155-159. Judge Kelly did not address this issue in his

R&R.26Res judicataextends only to the facts and conditions as they existed at the time the judgment was rendered, at the

time the issues in the first action were made, and to the legal rights and relations of the parties as fixed by the facts

determined by that judgment. SeeHialeah Race Course, Inc. v. Gulfstream Park Racing Ass'n,210 So.2d 750,753

(Fla. 4th DCA 1968).
http://leagle.com/get_cited/210%20So.2d%20750http://leagle.com/get_cited/210%20So.2d%20750http://leagle.com/get_cited/210%20So.2d%20750http://leagle.com/get_cited/210%20So.2d%20750


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Res judicataextends only to the facts and conditions as they existed at the time the

judgment was rendered, at the time the issues in the first action were made, and to the legal rights

and relations of the parties as fixed by the facts determined by that judgment. SeeHialeah Race

Course, Inc. v. Gulfstream Park Racing Ass'n,210 So.2d 750,753 (Fla. 4th DCA 1968).

Judge Kelly asserts that the Plaintiffs current claims must be dismissed on res judicata

because they are based on the same nucleus of facts as their prior claims, the servicing of their

note and the denial of Plaintiffs request for a loan modification (R&R, pg. 9). This

application of res judicatato the Plaintiffs current case is erroneous and judicially unfair to the

Plaintiffs. The servicing of a note or loan is extremely broad

27

. A loan servicer is a financial

institution which reports loan payments, collects the monthly payment and penalties on late

payments, releases liens, makes certain that insurance and taxes are paid and initiates foreclosure

proceedings for loans in default. A loan servicer is also called a mortgage servicer. Mortgage

servicers receive fee income and are paid for these services. The loan servicer can also be a

lender, who owns the loan. Mortgage servicers are the borrower interface, answering questions,

correcting posting errors, and coordinating loan modifications. So many different violations can

occur during the servicing of a loan. To limit the Plaintiffs in this regard and apply res judicata

to the general servicing of a loan is unjust.

As for the application of res judicataregarding the the denial of Plaintiffs request for a

loan modification, that statement is clearly misguided. First, this current claim is not regarding

the Plaintiffs denial of a loan modification. This claim is regarding the malicious scheme

perpetrated against the Plaintiffs which was concealed for quite some time which included a

farce Bank of America Office of the CEO and President staffed by Defendants Urban and

27InUnited States v. Felix503 U.S. 378 (1992), theU.S. Supreme Courtruled: "a[n]...offenseand aconspiracyto

commit that offense are not the same offense for double jeopardy purposes.
http://leagle.com/get_cited/210%20So.2d%20750http://leagle.com/get_cited/210%20So.2d%20750http://leagle.com/get_cited/210%20So.2d%20750http://en.wikipedia.org/wiki/United_States_v._Felixhttp://en.wikipedia.org/wiki/United_States_v._Felixhttp://en.wikipedia.org/wiki/United_States_v._Felixhttp://en.wikipedia.org/wiki/U.S._Supreme_Courthttp://en.wikipedia.org/wiki/U.S._Supreme_Courthttp://en.wikipedia.org/wiki/U.S._Supreme_Courthttp://en.wikipedia.org/wiki/Crimehttp://en.wikipedia.org/wiki/Crimehttp://en.wikipedia.org/wiki/Crimehttp://en.wikipedia.org/wiki/Conspiracy_(crime)http://en.wikipedia.org/wiki/Conspiracy_(crime)http://en.wikipedia.org/wiki/Conspiracy_(crime)http://en.wikipedia.org/wiki/Conspiracy_(crime)http://en.wikipedia.org/wiki/Crimehttp://en.wikipedia.org/wiki/U.S._Supreme_Courthttp://en.wikipedia.org/wiki/United_States_v._Felixhttp://leagle.com/get_cited/210%20So.2d%20750


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CGCGsunqualified personnel who were on board to mislead the Plaintiffs regarding many

facets of a HAMP modification and intentionally misrepresented statements to governmental

agencies conducting investigations on behalf of the Plaintiffs. These fraudsters (Urban and

CGCG) also maliciously, along with Defendant Bank of America (BANA) manipulated the

Plaintiffs computer entries28

to reflect incorrect postings, close their file, manipulated records of

calls and non-submission of documents which clearly substantiate the employee affidavits filed

in this court as exhibits which give a telling account of how employees were asked to manipulate

homeowners records to reflect their malicious objective. Judge Kelly clearly forgot to mention

these NEW facts and NEW exhibits in his R&R when making his determination.

Still, as a matter of law, a HAMP loan modification is a contract. The existence of a

contractual remedy allowing one to seek all expected benefits from a breached contract should

not be determinative of the identity of the cause of action for res judicatapurposes29

. Otherwise,

a finding of no breach in a breach of contract action will essentially give the victorious party a

get out of jail free card, enabling that party to subsequently breach without being subject to

legal recourse. U.S. Project Management, Inc. v. Parc Royale East Development, Inc., 861 So.2d

at 77.

The Plaintiffs were victims of an elaborate scheme and through a thorough investigation

provided by a reputable source (Bloomberg) with the capability of conducting such a research,

28See Judicial Notice, Doc. 55, Plaintiffs Computer Entries from Bank of America.

29

In U.S. Project Management, Inc. v. Parc Royale East Development, Inc., 861 So.2d 74 (Fla. 4th DCA 2003), thecourt there recognized that a suit for one breach of contract does not bar a suit for subsequent breaches of the same

contract.Parc Royaleinvolved two separate breaches of the same consulting agreement between a real estate

development firm and a condominium developer. A loan modification is a contract and therefore, subsequent

breaches or violations of that contract will not bar a subsequent suit involving a loan modification or in this case, a

HAMP modification. Parties were concealed and new misrepresentations regarding this loan modification contract

were recently discovered. More than one lawsuit may be brought on the same contract (i.e. loan modification) Inter-

Active Services, Inc. v. Heathrow Master Association, Inc.,809 So. 2d 900, 902-04 (Fla. 5th DCA 2002).


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the Plaintiffs were able to become aware of all the concealed facts and necessary parties that

were hidden for quite some time relating to their personal experience with Bank of America.

Even though the truth caused much distraught, it was a necessary exposure needed to reveal the

new facts and conditions of this current case. These facts and conditions are different because

they were not known until recently.

The Bloomberg investigation30

(which is NEW evidence and NEW facts) along with the

Plaintiffs computer entries and the BANA and Urban employee affidavits filed in this case, fit

perfectly as the pieces of a puzzle. There is no question that this scheme was finally exposed and

that other new evidence of events that occurred DURING and AFTER any prior judgment would

not allow this case to be dismissed as a matter of law.

4. Defendants Urban and Carlisle & Gallagher were necessary parties.

A necessary party is a person or entity whose interests will be affected by the outcome of

a lawsuit, whose absence as a party in the suit prevents a judgment on all issues.

Under Fed. R. Civ. P. 15(d), a plaintiff cannot be punished for exercising his or her

option not to supplement their complaint. Nonetheless, the Plaintiffs were not afforded the

opportunity to supplement their earlier complaints in previous lawsuits to add claims or add

defendants because they were not aware of necessary parties or hidden material facts due to

the Defendants malicious misconduct during litigation and discovery.

The Plaintiffs would have gladly supplemented their pleadings if they would have

become aware, as they rightfully should have, of the necessary parties(Urban and CGCG) and

the material facts that were crucial for them to add new facts and claims to their lawsuit.

30Exhibit A filed with all of the Plaintiffs complaints.


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Finally, whether plaintiff had a full and fair opportunity to litigate all her claims in the

first suit is determined by examining any procedural limitations, the partys incentive to fully

litigate the claim, and whether effective litigation was limited by the nature or relationship of the

parties. Satterfield v. Olsten Kimberly Quality Care, 203 F.3d 836 (10th

Cir. 2000).

5. Other exceptions31

that will not allow res judicatato bar Plaintiffs claims.

The party claiming the benefit of res judicatacarries the burden of demonstrating the

doctrines applicability. deCancino v. E. Airlines, Inc., 283 So.2d 97, 99 (Fla. 1973). Any

doubts about the doctrines applicability must be resolved against preclusion. SeeNeidhart v.

Pioneer Fedl Sav. & Loan Assn,498 So.2d 594, 596 (Fla. 2d DCA 1986).

Another exception states that if a defendant misleda plaintiff by false representation or

concealment, which caused the plaintiff to sue on less than the entire claim in the first action,

the court will not permit the defendant to rely on claim preclusion should the plaintiff sue on

the remainder of the claim in a second action. See CASAD & CLERMONT, supra note 18, at

104. This would definitely apply to Plaintiffs current case.

Although res judicatahas a more binding effect(Id.at 1255 n.2.) than the law of the

case, courts will not invoke the doctrine where it will work an injustice.Flesche v. Interstate

Warehouse, 411 So. 2d 919, 924 (Fla. 1st D.C.A. 1982);see alsoState v. McBride, 848 So. 2d

287, 291 (Fla. 2003).

31Restatement of the Law Second, Judgmentsreflects throughout the extent to which the contemporary law

governing whether a previously adjudicated claim or issue may be relitigated depends upon the procedural

opportunities that had been available to litigate it fully and fairly the first time . A particular advantage of this

emphasis is that the law of res judicatais stated in terms coordinate with the legislative systems of civil procedure

currently in general use, i. e., the Federal Rules and state systems closely similar to them. The value of Judgments

Second for the practitioner is thereby greatly enhanced.


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Courts find that Florida law recognizes a manifest injusticeexception to res judicata

and collateral estoppel, especially involving a pro selitigant.Hartnett v. Mustelier, 330 B.R.

823 (Bankr.S.D.Fla. 2005).

D. The Report violates rules for decision of motions under F.R.C.P. Rule 12(b)(6).

To warrant dismissal of a complaint under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, it must be "clear that no relief could be granted under any set of facts that could be

proved consistent with the allegations."Blackston v. Alabama. 30 F.3d 117, 120 (1lth Cir.1994)

(quotingHishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59

(1984)).

The court must accept as true all well-pleaded allegations and all reasonable inferences

that can be drawn from those allegations, and view the causes of action in the light most

favorable to the plaintiff. Tellabs, inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)

(the court must assume that all plausible facts contained in the complaint are true).

The court is required to conduct a two-part analysis when considering a Rule 12(b)(6)

motion. First, the factual matters averred in the complaint, and any attached exhibits, should be

separated from legal conclusions asserted.Fowler, 578 F.3d at 210.

At the motion-to-dismiss stage, we consider the facts derived from a complaints

exhibits as part of theplaintiffs basic factual averments32

. See Solis-Ramirez v. U.S. Dept of

Justice, 758 F.2d 1426, 1430 (11th Cir. 1985) (per curiam). We even treat specific facts

demonstrated by exhibitsas overriding more generalized or conclusory statements in the

complaint itself. See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007).

([W]hen the exhibits contradict the general and conclusory allegations of the pleading, the

32See Fed. R. Civ. P. 10(c).


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exhibits govern. (citingAssoc. Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir.

1974)). In evaluating the Motion, the facts stated in. . . [the] complaint and all reasonable

inferences there from are taken as true. Stephens v. Dept. of Health and Human Servs. 901 F.2d

1571, 1573 (11th Cir.1990).

The Report violates all rules for decision of motions under F.R.C.P. Rule 12(b)(6).

Plaintiffs' Complaint alleges new and unresolved factual issues. Rather than "tak[ing] ... as true"

and "constru[ing] favorably" these allegations, the Report rejects them or presumes they raise no

material issues of fact and only interjects a res judicatadefense to dismiss the Plaintiffs claims.

Actually, with all due respect, the Report and Recommendation seems more like a Motion to

Dismiss drafted by the defendants and not a Report written by an impartial judge. Rather than

"giv[ing] the plaintiff the benefit of every reasonable inference" and "examin[ing] the complaint

to determine if the allegations provide for relief on any possible theory," the Report decides

against Plaintiffs' allegations on the basis of misconstructions of law and bias.

CONCLUSION

The Plaintiffs object to the magistrates Report and Recommendation on the grounds of

bias and prejudice and conflict of interest and for the numerous reasons stated in this Opposition

by skimming through the Plaintiffs complaint, not reviewing anyof their exhibits and the

misapplication of res judicata in this current case. For the foregoing reasons, the Court should

vacate Magistrate Judge Gregory J. Kellys Report and Recommendation in its entirety or in the

alternative decline to adopt the Magistrate JudgesReport and Recommendation (Doc. No. 68),

sustain Plaintiffs Second Amended Complaint(Doc. 60), deny all named Defendants Motions

to Dismiss, and allow this current action to continue to discovery and jury trial on the true merits.


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Documents

Echeverria vs Bank of America Opposition to Magistrate Report & Recommendation