Andrzej Madura v. Bank of America, NA ( 2014 )


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  •             Case: 13-13953   Date Filed: 11/10/2014   Page: 1 of 35
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 13-13953
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 8:11-cv-02511-VMC-TBM
    ANDRZEJ MADURA,
    ANNA DOLINSKA-MADURA,
    Plaintiffs-Counter Defendants-
    Counter Claimants-Appellants,
    versus
    BAC HOME LOANS SERVICING, LP,
    f.k.a.Countrywide Home Loans Servicing, LP,
    Defendant,
    BANK OF AMERICA, NA,
    Defendant-Counter Claimant-
    Third Party Plaintiff-
    Counter Defendant-Appellee,
    COUNTRYWIDE HOME LOANS INC.,
    Counter Defendant,
    UNKNOWN TENANT 2, et al.,
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    Third Party Defendants.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ________________________
    (November 10, 2014)
    Before WILSON, ROSENBAUM, and FAY, Circuit Judges.
    PER CURIAM:
    Andrzej Madura and his wife, Anna Dolinska-Madura, appeal pro se the
    district judge’s granting summary judgment to Bank of America, N.A. (“BOA”).
    We affirm.
    I. BACKGROUND
    A. Underlying Facts
    On July 26, 2000, Madura obtained a residential home loan from Full
    Spectrum Lending, Inc. (“Full Spectrum”). Under the terms of the loan agreement,
    Madura borrowed $87,750.00 at an adjustable interest rate of 14.375%, secured by
    the Maduras’ principal residence. Madura signed an arbitration agreement at the
    loan closing, and both he and his wife signed the mortgage. On July 31, 2000,
    Countrywide Home Loans, Inc. (“Countrywide”), purchased the loan from Full
    Spectrum.
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    In March 2001, the Maduras contacted Countrywide and requested to repay
    their loan in full. Countrywide informed them that a prepayment penalty applied
    and sent them a payoff demand statement that included a $5,036.84 prepayment
    penalty. The Maduras sent Countrywide a letter on May 23, 2001, demanding an
    immediate rescission of the loan agreement because of alleged fraud and forgery.
    They asserted Full Spectrum and/or Countrywide had destroyed the original loan
    documents and had fabricated a new promissory note and Truth in Lending Act
    (“TILA”) Disclosure Statement, which included a prepayment-penalty provision
    not present in the original loan documents. The Maduras contended Full Spectrum
    and Countrywide had forged their initials and signatures on the fabricated
    documents. Countrywide refused to rescind the loan agreement, but did agree to
    waive the prepayment penalty.
    Despite the waiver of the penalty, the Maduras did not repay the loan in full.
    They continued to make their monthly loan payments, until November 1, 2006,
    when Madura ceased making payments. Countrywide sent Madura a notice of
    default and acceleration on April 23, 2007.
    Effective April 27, 2009, Countrywide changed its name to BAC Home
    Loans Servicing, L.P. (“BAC Home Loans”). On July 1, 2011, BAC Home Loans
    merged with BOA. BOA notified Madura when the ownership and servicer rights
    of the loan were transferred from BAC Home Loans to BOA. In February 2012,
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    BOA sent Madura a re-notice of default and acceleration. Madura did not cure the
    default.
    B. Litigation History
    1. Madura 1
    After the Maduras sent Countrywide the May 23, 2001, letter demanding
    rescission of their July 26, 2000, loan, they initiated multiple lawsuits in both state
    and federal courts. In 2002, the Maduras filed a Florida court action, “Madura 1,”
    against Full Spectrum and Countrywide in the Manatee County Circuit Court,
    Case No. 2002 CA 2358. Based in part on the Maduras’ contentions that Full
    Spectrum and Countrywide fraudulently had altered and forged their loan
    documents, they raised state-law claims of forgery, uttering a forged instrument,
    conspiracy, and violations of the Racketeer Influenced and Corrupt Organizations
    Act (“RICO”), 18 U.S.C. §§ 1961-1968. They also raised state law claims of usury
    and argued their interest rate was unreasonable.
    Full Spectrum and Countrywide moved to compel arbitration against
    Madura. The state judge granted the motion, finding Madura had signed an
    enforceable arbitration agreement encompassing all of his claims. The judge
    further found, even if Madura’s usury claim was not appropriate for arbitration, the
    claim was not colorable as a matter of law. Thereafter, his wife filed in the same
    case an amended state-court complaint, alleging federal TILA claims and state-law
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    claims of fraud and fraud in the inducement. In Counts I and II, she alleged the
    defendants had violated TILA by impermissibly adding a prepayment penalty to
    TILA Disclosure and by forging the Maduras’ signatures on loan documents,
    before entering the documents on the public record. In Counts III and IV,
    Dolinska-Madura raised civil and criminal usury claims under Florida law. In
    Count V, she alleged the defendants fraudulently had induced her to take the loan.
    In Count VI, she alleged fraud on the basis that the defendants had charged a
    prepayment penalty to which the Maduras had never agreed at closing.
    The defendants moved for summary judgment. The state-court judge
    granted the motion and found the alleged TILA violations were time-barred. On
    Counts III and IV, the judge found Dolinska-Madura was not a “borrower” and
    thus lacked standing to bring usury claims. On Counts V and VI, the judge found
    the defendants had waived the prepayment penalty; consequently, Dolinska-
    Madura could not demonstrate damages, an essential element of a claim of fraud.
    Dolinska-Madura petitioned the Supreme Court of Florida, which declined to
    review her case. Dolinska-Madura v. Full Spectrum Lending, Inc., No. SC06-1908
    (Fla. Oct. 17, 2006).
    2. Madura 2
    On November 6, 2006, the Maduras filed a second lawsuit, “Madura 2,” in
    federal court. They sought rescission of the January 26, 2000, loan and statutory
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    damages for alleged violations of the TILA. They alleged Countrywide had failed
    to honor their May 23, 2001, demand to rescind the loan based on illegally altered
    and forged loan documents. They also raised state-law claims for failure of
    contract, forgery, fraud, fraud in the inducement, usury, uttering forged bills, and
    violations of the Florida Communications Fraud Act (“FCFA”).
    Pursuant to his arbitration agreement, the district judge ordered Madura to
    arbitrate his claims and dismissed them to be arbitrated. The judge concluded
    Dolinska-Madura’s claims were precluded by the doctrines of collateral estoppel or
    res judicata, because she already had raised those claims or should have raised
    them in Madura 1. The district judge found the Florida court was a court of
    competent jurisdiction, the state-court judge had entered a final judgment on the
    merits against Dolinska-Madura, the parties in the state and federal-court actions
    were identical, and all of Dolinska-Madura’s state and federal claims arose out of
    the same operative nucleus of facts surrounding the July 26, 2000, loan. The
    district judge granted summary judgment to Full Spectrum and Countrywide on
    Dolinska-Madura’s claims. We affirmed on appeal. Madura v. Countrywide
    Home Loans, Inc., 344 F. App’x 509, 511 (11th Cir. 2009) (per curiam).
    3. Madura 3
    In 2010, the Maduras filed their third lawsuit, “Madura 3,” in Florida court
    against BOA. BOA removed the action to federal court. In an amended
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    complaint, the Maduras requested a declaratory judgment, stating they were not
    liable for any payments on their loan, since their May 23, 2001, letter had
    rescinded the loan, because of Countrywide’s nondisclosure of forged loan
    documents. The Maduras also raised claims of forgery, fraudulent notarization,
    FCFA violations, intentional spoliation of loan instruments, intentionally sending
    derogatory and inaccurate reports to credit bureaus, utterance of forged
    instruments, unauthorized payment of property taxes, and RICO violations.
    BOA moved to dismiss the amended complaint, which the district judge
    granted on July 16, 2010. The judge found the complaint had not directed a single
    allegation against BOA. Although the Maduras had sued BOA as the parent
    company of Countryside, the judge found BOA was not Countrywide’s parent
    company, and even if it was, a parent company generally is not liable for the acts
    of its subsidiaries. The judge concluded that res judicata barred the action, because
    each and every claim in the action had been addressed and finally adjudicated in
    Madura 1 and 2. The Maduras appealed, but we later dismissed the appeal for the
    Maduras’ failure to prosecute. Madura v. Bank of America, N.A., No. 10-14717
    (11th Cir. May 27, 2011).
    4. Madura 4 and Madura 6
    The Maduras filed three additional lawsuits in 2011 and 2012. In October
    2011, they filed “Madura 4” in a Florida small-claims court against the attorneys,
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    who had represented them in Madura 1, 2, and 3. Shortly thereafter, they filed the
    action at issue in this appeal,“Madura 5.” In January 2012, they filed “Madura 6”
    in small-claims court against Countrywide. The small-claims court dismissed
    Madura 4 and 6, because it lacked jurisdiction and the Maduras’ claims, all of
    which stemmed from their July 2000 loan and had been adjudicated in Madura 1
    and 3.
    C. Madura 5
    Following removal from state court, on November 4, 2011, the Maduras
    filed an amended complaint in federal court against BOA and BAC Home Loans,
    alleging violations of the Real Estate settlement Procedures Act (“RESPA”), 12
    U.S.C. § 205(b), (c), and (e). The Maduras alleged BOA and BAC Home Loans
    had violated § 2605(b) and (c) of RESPA by failing to notify them that, on April
    27, 2009, Countrywide had transferred the servicing of their loan to BAC Home
    Loans. They also alleged the defendants had violated § 2605(e) by failing to
    respond to numerous Qualified Written Requests (“QWRs”), as defined by
    RESPA, within the requisite time periods. In support, the Maduras attached
    numerous letters, which they contended constituted QWRs under RESPA. They
    requested actual damages in an amount to be determined by a jury, statutory
    damages for each plaintiff in the amount of $2,000 per violation, and attorney’s
    fees and costs.
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    BOA, on its own and as successor by merger to BAC Home Loans,
    answered the complaint and subsequently filed a counterclaim for foreclosure
    against the Maduras.1 BOA alleged the Maduras had not paid the required
    monthly installment payments on the July 26, 2000, loan from November 1, 2006,
    to the present. As a result, the Maduras owed BOA $86,643.46. BOA asserted all
    conditions precedent to the acceleration of the debt and commencement of the
    action had been fulfilled or waived, and it held the note and held the note
    immediately before it had filed the foreclosure action.
    The Maduras filed a 140-page answer to BOA’s counterclaim for
    foreclosure, denying the allegations and raising 71 affirmative defenses. They
    asserted BOA lacked standing to foreclose, because the note was not a negotiable
    instrument, BOA was not a holder or a holder in due course of the note, the
    allonge 2 to the note was fraudulent and was not affixed to the note, they had
    rescinded the loan in May 2001, and the loan documents had been forged and
    fraudulently altered.
    1
    BOA also filed a third-party complaint against additional parties, but no party has
    appealed the district judge’s resolution of those claims.
    2
    Under Florida law, an “allonge” is a legal term for “a piece of paper annexed to a
    negotiable instrument or promissory note, on which to write endorsements for which there is no
    room on the instrument itself.” Wells Fargo Bank, N.A. v. Bohatka, 
    112 So. 3d 596
    , 598 (Fla. 1st
    Dist. Ct. App. 2013) (citation and internal quotation marks omitted). An allonge may name the
    payee or may be endorsed in blank. 
    Id. 9 Case:
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    Following discovery, BOA moved for summary judgment on the Maduras’
    RESPA claims and on its counterclaim for foreclosure. The Maduras responded in
    opposition and simultaneously filed their own motion for partial summary
    judgment on the foreclosure counterclaim, arguing again that BOA lacked standing
    to foreclose. In support of their motion for partial summary judgment, they
    attached numerous “Forensic Document Examination Reports” from Thomas
    Vastrick, a purported expert in forgery and document alteration. In the reports,
    Vastrick stated Madura’s initials on the promissory note and both his and his
    wife’s signatures on the TILA Disclosure appeared to have been forged. Vastrick
    also recommended additional testing be performed on the allonge to determine
    whether the endorsements therein were genuine.
    BOA subsequently moved to strike the forensic document examination
    reports and argued they were inadequate under Daubert v. Merrell Dow
    Pharmaceuticals, Inc., 
    509 U.S. 579
    , 
    113 S. Ct. 2786
    (1993), for the admission of
    expert testimony. The Maduras responded in opposition and requested a Daubert
    hearing to resolve the matter.
    Meanwhile, the district judge ordered BOA to tender the original, signed
    loan documents to chambers. BOA complied. On July 17, 2013, the judge granted
    BOA’s motion for summary judgment and denied the Maduras’ motion for partial
    summary judgment. The judge also granted BOA’s motion to strike the forensic
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    reports and found they were wholly inadequate under the standards set forth in
    Daubert.
    The judge concluded BOA was entitled to summary judgment on RESPA
    claims as a matter of law, because the Maduras had not established RESPA applied
    or BOA had violated any provision of the statute. As for BOA’s foreclosure
    counterclaim, the district judge first addressed the Maduras’ motion for partial
    summary judgment and BOA’s standing to foreclose. The judge rejected the
    Maduras’ argument that they had rescinded the loan and found their May 23, 2001,
    letter, even construed broadly, did not rescind their loan. The Maduras had ratified
    the loan by continuing to make payments on it after the claimed rescission. The
    judge found BOA properly had authenticated the note and allonge and rejected the
    Maduras’ contention the note and allonge were defective because they were not
    stapled together. The judge also found the note was a negotiable instrument under
    Florida law. BOA’s possession of the note, endorsed in blank, defeated the
    Maduras’ arguments. The judge denied the Maduras’ motion for partial summary
    judgment on the issue of BOA’s standing to bring the foreclosure counterclaim.
    The district judge subsequently addressed the Maduras’ 71 affirmative
    defenses to the foreclosure counterclaim. The judge determined the doctrine of res
    judicata barred those affirmative defenses that were based on the Maduras’ theory
    that the promissory note and TILA Disclosure had been forged and fraudulently
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    altered. Specifically, the judge determined those issues had been adjudicated in
    Madura 1, 2, and 3. The judge determined the Maduras’ remaining affirmative
    defenses lacked merit or were not supported adequately by argument or law.
    On July 23, 2013, the Maduras moved for reconsideration and argued BOA
    lacked authority to enforce the note because it had not paid the documentary taxes
    on the note, as required under Florida law. The same day, they filed another
    motion for reconsideration and asserted the district judge had engaged in
    impermissible ex parte communications in acquiring the original loan documents
    from BOA.
    On August 12, 2013, the district judge denied both motions for
    reconsideration. Specifically on the Maduras’ argument regarding ex parte
    communications, the judge noted Florida law required parties seeking to foreclose
    on a mortgage to produce the original note. The judge found BOA had furnished
    the original loan documents in compliance with Florida law. Accordingly, the
    judge concluded she had not engaged in ex parte communications. The judge also
    found the relevant documentary taxes had been paid, because the note showed the
    payment of those taxes. The judge entered a final decree of foreclosure on August
    13, 2013. On appeal, the Maduras challenge the district judge’s grant of summary
    judgment to BOA on their RESPA claims and on the foreclosure counterclaim.
    They also challenge numerous prior orders of the district judge.
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    II. DISCUSSION
    We review a judge’s granting summary judgment de novo and view all
    evidence and draw all reasonable inferences in favor of the nonmoving party.
    Chapter 7 Tr. v. Gate Gourmet, Inc., 
    683 F.3d 1249
    , 1254 (11th Cir. 2012).
    Summary judgment is proper only “when there is no genuine dispute as to any
    material fact and the movant is entitled to judgment as a matter of law.” 
    Id. (citation and
    internal quotation marks omitted). “A genuine issue of material fact
    exists when a reasonable jury could return a verdict for the nonmoving party.” 
    Id. Presenting mere
    conclusions and unsupported factual allegations will not defeat a
    summary judgment motion. Ellis v. England, 
    432 F.3d 1321
    , 1326 (11th Cir.
    2005) (per curiam). We may affirm granting a district judge’s grant of summary
    judgment “on any ground supported by the record, regardless of whether that
    ground was relied upon or even considered by the district court.” Kernel Records
    Oy v. Mosley, 
    694 F.3d 1294
    , 1309 (11th Cir. 2012).
    While we read “briefs filed by pro se litigants liberally, issues not briefed on
    appeal by a pro se litigant are deemed abandoned.” Timson v. Sampson, 
    518 F.3d 870
    , 874 (11th Cir. 2008) (per curiam) (citation omitted). “A party fails to
    adequately brief a claim when he does not plainly and prominently raise it, for
    instance by devoting a discrete section of his argument to those claims.” Sapuppo
    v. Allstate Floridian Ins. Co., 
    739 F.3d 678
    , 681 (11th Cir. 2014) (citation and
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    internal quotation marks omitted). We have “long held that an appellant abandons
    a claim when he either makes only passing references to it or raises it in a
    perfunctory manner without supporting arguments and authority.” 
    Id. We do
    not
    address arguments raised for the first time in a pro se litigant’s reply brief. 
    Timson, 518 F.3d at 874
    . Likewise, arguments raised for the first time on appeal, which
    were not presented in the district court, are deemed waived. Access Now, Inc. v.
    Sw. Airlines Co., 
    385 F.3d 1324
    , 1331 (11th Cir. 2004).
    As an initial matter, the Maduras have waived the following issues on
    appeal, either by failing to raise the issues in the district court or by failing to
    provide supporting arguments and authority on appeal: (1) whether BOA waived
    its foreclosure counterclaim by failing to raise it in Madura 3 or Madura 6; 3
    (2) whether BOA failed to refute the Maduras’ contention that they did not receive
    proper consideration for the loan; (3) whether BOA entirely ignored the Maduras’
    fourteenth affirmative defense; and (4) whether BOA did not address the Maduras’
    first, twelfth, thirty-third, and fifty-fifth affirmative defenses. Accordingly, we
    decline to address those issues.
    3
    The Maduras actually argue the doctrine of res judicata bars BOA from filing for
    foreclosure. Construing their brief liberally, however, it appears they misunderstood res judicata
    and intended to assert that BOA waived the counterclaim for foreclosure by failing to raise it in
    previous lawsuits.
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    A. RESPA Claims
    On appeal, the Maduras argue pro se the district judge erred by finding their
    RESPA claims and defenses are without merit. RESPA prescribes certain actions
    to be followed by entities or persons responsible for servicing federally related
    mortgage loans. See 12 U.S.C. § 2605. RESPA provides that “[e]ach servicer of
    any federally related mortgage loan shall notify the borrower in writing of any
    assignment, sale, or transfer of the servicing of the loan to any other person.” 
    Id. § 2605(b)(1).
    Subsection (c) similarly provides that: “[e]ach transferee servicer to
    whom the servicing of any federally related mortgage loan is assigned, sold, or
    transferred shall notify the borrower of any such assignment, sale, or transfer.” 
    Id. § 2605(c).
    RESPA’s implementing regulations provide, however, that the following
    transfers are not considered an assignment, sale, or transfer of mortgage loan
    servicing for purposes of the notice requirement: (1) transfers between affiliates;
    (2) transfers resulting from mergers or acquisitions of servicers or subservicers;
    and (3) transfers between master servicers, where the subservicer remains the
    same. 24 C.F.R. § 3500.21(d)(1)(i).
    RESPA also provides a loan servicer, upon receipt of a QWR for
    information related to the servicing of a loan, must provide a written response
    acknowledging receipt of the QWR within 5 business days. 12 U.S.C.
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    § 2605(e)(1)(A). A QWR is a written correspondence that (1) allows the servicer
    to identify the name and account of the borrower, and (2) includes a statement of
    the reason for the borrower’s belief that the account is in error or provides
    sufficient detail regarding other information sought by the borrower. 
    Id. § 2605(e)(1)(B).
    The term “servicing” means receiving any scheduled periodic
    payments from a borrower under the terms of any loan and making the payments
    of principal and interest regarding the amounts received from the borrower as may
    be required by the loan. 
    Id. § 2605(i)(3).
    RESPA further requires, within 30 business days of receipt of a QWR, the
    servicer must (1) make appropriate corrections in the account of the borrower and
    transmit a written notification of the correction; (2) after conducting an
    investigation, provide the borrower with a written explanation that includes a
    statement of the reasons for which the servicer believes the account is correct, and
    the name and telephone number of an employee or department that can provide
    further assistance; or (3) after conducting an investigation, provide the borrower
    with a written explanation that includes the information requested by the borrower
    or an explanation of why the information requested is unavailable, along with the
    name and telephone number of an employee or department that can provide further
    assistance. 
    Id. § 2605(e)(2).
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    If a loan servicer fails to comply with any of these provisions, an individual
    borrower may recover any actual damages caused by the failure, and up to $1,000
    in statutory damages if there is a pattern or practice of noncompliance with
    RESPA. 
    Id. § 2605(f).
    First, the Maduras have failed to provide any evidence or
    argument demonstrating that BOA or its predecessors were required to provide
    notice of a transfer, assignment, or sale of the servicing of their loan. The Maduras
    also have failed to demonstrate a transfer of the servicing of their loan occurred, as
    defined under the regulations. In fact, they admit in their amended complaint
    Countrywide changed its name to BAC Home Loans and BAC Home Loans
    subsequently merged with BOA. Servicers do not have to provide notice of
    transfers between affiliates or as the result of mergers. 24 C.F.R.
    § 3500.21(d)(1)(i).
    Second, the Maduras’ communications with BOA do not constitute QWRs.
    Moreover, a review of the Maduras’ letters to BOA and its predecessors reveals the
    correspondence does not relate to the servicing of their loan. Rather, within the
    letters, the Maduras asserted their loan documents had been forged, warned the
    servicers not to transfer the loan, and accused the servicers of committing mail
    fraud. In addition, the Maduras have offered no competent evidence demonstrating
    actual damages caused by RESPA violations. See 12 U.S.C. § 2605(f). To the
    extent the Maduras raise the purported RESPA violations as an affirmative defense
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    to foreclosure, they have not demonstrated how a RESPA violation would preclude
    a foreclosure. Accordingly, the Maduras have failed to establish a genuine dispute
    of material fact concerning the alleged RESPA violations, and the district judge did
    not err by granting summary judgment to BOA on those claims.
    B. Foreclosure Counterclaim
    1. Preclusion of Forgery and Fraud-Based Arguments
    We review de novo the application of res judicata and collateral estoppel.
    Lozman v. City of Riviera Beach, Fla., 
    713 F.3d 1066
    , 1069 (11th Cir. 2013).
    When determining whether to give preclusive effect to a federal judgment, we
    apply federal common law. Tampa Bay Water v. HDR Eng’g, Inc., 
    731 F.3d 1171
    ,
    1179 (11th Cir. 2013). 4 Collateral estoppel “operates to bar the introduction or
    argumentation of certain facts necessarily established in a prior proceeding.” 
    Id. at 1180
    (citation and internal quotation marks omitted). In this circuit, a party
    seeking to apply the doctrine of collateral estoppel must establish “(1) the issue at
    stake is identical to the one involved in the earlier proceeding; (2) the issue was
    actually litigated in the earlier proceeding; (3) the determination of the issue must
    have been a critical and necessary part of the earlier judgment; and (4) the party
    against whom collateral estoppel is asserted must have had a full and fair
    4
    Federal preclusion principles bar the Maduras’ claims arising from the July 26, 2000,
    loan transaction, based on the federal decisions in Madura 2 and 3. Therefore, we need not
    determine whether state preclusion principles also bar those claims based on the state-court’s
    judgment in Madura 1.
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    opportunity to litigate the issue.” 
    Id. (citation, internal
    quotation marks, and
    ellipsis omitted). Under federal common law, collateral estoppel is not limited to
    actions between the same parties and their privies. “A defendant who was not a
    party to the original action may invoke collateral estoppel against the plaintiff.”
    Hart v. Yamaha-Parts Distribs., Inc., 
    787 F.2d 1468
    , 1473 (11th Cir. 1986).
    Collateral estoppel bars the Maduras from relitigating all claims that they
    raised or could have raised in their initial state-court action, including the
    following issues: (1) whether they had rescinded the July 26, 2000, loan through
    the May 23, 2001, letter; (2) whether their loan documents had been forged and
    fraudulently altered; (3) whether their loan was usurious; and (4) any other issues
    arising from the July 26, 2000, loan transaction.
    In Madura 2, the district judge found the doctrine of res judicata prevented
    Dolinska-Madura from relitigating any claims that arose from the July 2000, loan
    transaction, including her fraud, usury, and TILA claims and any variations of
    those claims, because the state court had finally adjudicated those claims in
    Madura 1. The district judge dismissed Madura’s claims, finding he had to
    arbitrate them. We affirmed. Madura, 344 F. App’x at 517-18. Likewise, in
    Madura 3, the district judge dismissed the case with prejudice and found all claims
    in the action, including the issue of whether the Maduras had rescinded the loan,
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    were barred by the doctrine of res judicata, because they had been addressed and
    finally adjudicated in Madura 1 and 2.
    Since the district judges in Madura 2 and 3 had determined Dolinska-
    Madura’s claims arising from the July 26, 2000, loan transaction were precluded
    by res judicata and Madura had to arbitrate those claims, the doctrine of collateral
    estoppel precluded the judge in this case from adjudicating those claims on the
    merits. See Tampa Bay 
    Water, 731 F.3d at 1180
    . To the extent the Maduras
    challenge granting summary judgment to BOA or any other order of the district
    judge based on claims they raised or could have raised in Madura 1, we may not
    consider their arguments. The Maduras ratified the loan by continuing to make
    monthly payments on the loan until November 2006. See Molinos Valle Del
    Cibao, C. por A. v. Lama, 
    633 F.3d 1330
    , 1355 (11th Cir. 2011) (stating, under
    Florida law, ratification of an agreement “occurs where a person expressly or
    impliedly adopts an act or contract entered into in his or her behalf by another
    without authority” (citation and internal quotation marks omitted)).
    2. BOA’s Standing to Foreclose
    The Maduras also argue on appeal that BOA lacks standing to foreclose,
    because (1) the note is not a negotiable instrument; (2) the note and allonge were
    not authenticated; (3) the allonge was infected with fraud; (4) the allonge was not
    affixed to the note; (5) BOA does not own the note or mortgage; (6) BOA is not a
    21
    Case: 13-13953     Date Filed: 11/10/2014   Page: 22 of 35
    real party in interest; (7) BOA is merely an agent that constructively possesses the
    note for another entity; and (8) BOA is not a holder in due course.
    When a district judge exercises supplemental jurisdiction over state-law
    claims, state law governs substantive issues and federal law governs procedural
    issues. McDowell v. Brown, 
    392 F.3d 1283
    , 1294 (11th Cir. 2004). Under Florida
    law, the term “negotiable instrument” means “an unconditional promise or order to
    pay a fixed amount of money, with or without interest or other charges described in
    the promise or order.” Fla. Stat. § 673.1041(1). An instrument is not negotiable if
    it states “any other undertaking or instruction by the person promising or ordering
    payment to do any act in addition to the payment of money.” 
    Id. § 673.1041(1)(c).
    Florida courts generally have found that promissory notes, secured by a mortgage,
    are negotiable instruments. See, e.g., Harvey v. Deutsche Bank Nat’l Trust Co., 
    69 So. 3d 300
    , 303 (Fla. 4th Dist. Ct. App. 2011) (per curiam) (holding a note,
    endorsed in blank, was a negotiable instrument subject to the provisions of Chapter
    673 of the Florida Statutes); Riggs v. Aurora Loan Servs., LLC, 
    36 So. 3d 932
    , 933
    (Fla. 4th Dist. Ct. App. 2010) (per curiam) (same); Taylor v. Deutsche Bank Nat’l
    Trust Co., 
    44 So. 3d 618
    , 622 (Fla. 5th Dist. Ct. App. 2010) (noting “a promissory
    note is a negotiable instrument”); Perry v. Fairbanks Capital Corp., 
    888 So. 2d 725
    , 727 (Fla. 5th Dist. Ct. App. 2004) (recognizing a “promissory note is clearly a
    negotiable instrument” under Florida law).
    22
    Case: 13-13953      Date Filed: 11/10/2014    Page: 23 of 35
    The party entitled to enforce a promissory note, secured by a mortgage, is
    the holder of the instrument. U.S. Bank Nat’l Ass’n v. Knight, 
    90 So. 3d 824
    , 826
    (Fla. 4th Dist. Ct. App. 2012). “A ‘holder’ is someone who is ‘in possession of a
    negotiable instrument that is payable either to bearer or to an identified person that
    is the person in possession . . . .’” 
    Id. (quoting Fla.
    Stat. § 671.201(5)). The
    “bearer” is someone in possession of a negotiable instrument that is payable to
    bearer or endorsed in blank. 
    Id. “Thus, to
    have standing, an owner or holder of a
    note, endorsed in blank, need only show that he possessed the note at the
    institution of a foreclosure suit; the mortgage necessarily and equitably follows the
    note.” 
    Id. A party
    need not be a holder in due course in order to enforce a note by
    foreclosing the mortgage. 
    Taylor, 44 So. 3d at 622
    .
    Under Florida law, “commercial papers and signatures thereon and
    documents relating to them are self authenticating.” 
    Riggs, 36 So. 3d at 933
    (citation, internal quotation marks, and alterations omitted). In addition, the
    “authenticity of, and authority to make, each signature on [a negotiable] instrument
    is admitted unless specifically denied in the pleadings.” Fla. Stat. § 673.3081(1).
    If the validity of a signature is denied, the burden of establishing the validity
    generally “is on the person claiming validity, but the signature is presumed to be
    authentic and authorized.” 
    Id. (emphasis added).
    The effect of the § 673.1081(1)
    presumption is to require the party challenging the signature to produce evidence
    23
    Case: 13-13953     Date Filed: 11/10/2014    Page: 24 of 35
    supporting a finding that the signature was forged or unauthorized. See Bennett v.
    Deutsche Bank Nat’l Trust Co., 
    124 So. 3d 320
    , 322-23 (Fla. 4th Dist. Ct. App.
    2013) (per curiam) (holding defendants had failed to offer evidence showing
    signatures on the allonges were unauthentic and affirming grant of summary
    judgment to plaintiff on foreclosure action).
    BOA has established its standing to foreclose on the Maduras’ mortgage.
    Florida courts generally have held that ordinary mortgage promissory notes are
    negotiable instruments, and the Maduras have not identified in their initial brief
    which provisions of the note destroy its negotiability. See 
    Timson, 518 F.3d at 874
    (recognizing issues not briefed on appeal by a pro se litigant, as well as issues
    raised for the first time in a pro se litigant’s reply brief, are deemed abandoned).
    To the extent, if any, the Maduras argue the note is not negotiable because of late-
    charge and prepayment-penalty provisions, their argument fails. A negotiable
    instrument is an “unconditional promise or order to pay a fixed amount of money,
    with or without interest or other charges described in the promise or order.” Fla.
    Stat. § 673.1041(1) (emphasis added).
    The Maduras also have failed to provide admissible evidence supporting
    their assertions that the note and allonge were not authenticated. As discussed in
    more detail below, the Maduras are precluded from arguing their signatures on the
    note were forged, and the district judge properly struck Vastrick’s forensic report
    24
    Case: 13-13953     Date Filed: 11/10/2014    Page: 25 of 35
    calling into question the signatures on the allonge. Therefore, the Maduras have
    presented no evidence to overcome the presumption that the note and allonge
    contained authorized and authentic signatures. See 
    Bennett, 124 So. 3d at 322-23
    .
    The district judge found, and the Maduras have produced no evidence to the
    contrary, that the note and allonge currently are not attached, because BOA has had
    to separate, copy, and produce each document numerous times.
    Finally, BOA has standing to foreclose on the mortgage, because it
    possessed the note, endorsed in blank, and possessed the note prior to filing the
    foreclosure counterclaim. The mortgage necessarily and equitably followed the
    note. See 
    Knight, 90 So. 3d at 826
    . BOA need not demonstrate it is a holder in
    due course in order to foreclose. 
    Taylor, 44 So. 3d at 622
    .
    3. Amount of Debt Owed
    The Maduras argue BOA has failed to prove the amounts due and owing
    under the note with admissible evidence. They contend they have paid the loan in
    full. We review the district judge’s evidentiary rulings for abuse of discretion.
    Cynergy, LLC v. First Am. Title Ins. Co., 
    706 F.3d 1321
    , 1326 (11th Cir. 2013).
    Federal Rule of Evidence 803(6) permits a court to admit hearsay evidence if the
    record was made at or near the time that someone with knowledge transmitted the
    recorded information; the record was kept in the course of a regularly conducted
    activity of a business; the regular practice of that activity included making the
    25
    Case: 13-13953    Date Filed: 11/10/2014      Page: 26 of 35
    record; the testimony of the custodian of the records or another qualified witness
    proves all of these conditions; and “neither the source of information nor the
    method or circumstances of preparation indicate a lack of trustworthiness.” Fed.
    R. Evid. 803(6)(A)-(E). It is not necessary for the person who actually prepared
    the documents to testify “so long as other circumstantial evidence and testimony
    suggest their trustworthiness.” Itel Capital Corp. v. Cups Coal Co., 
    707 F.2d 1253
    , 1259 (11th Cir. 1983).
    The Maduras’ bare assertion the amount of debt owed is incorrect cannot
    defeat a summary judgment motion. 
    Ellis, 432 F.3d at 1326
    . BOA, on the other
    hand, presented numerous business records establishing the Maduras had defaulted
    on their loan and setting forth the amounts actually paid on the loan. Brieanne
    Siriwan, an officer of BOA, attested that she was familiar with those business
    records and has personal knowledge of BOA’s procedures for creating such
    records. She further stated the records were (1) made at or near the time of the
    occurrence of the matters recorded, by a person with personal knowledge of the
    information; (2) kept in the course of BOA’s regularly conducted business
    activities; and (3) created by BOA as a regular practice. Consequently, the district
    judge did not err by considering those documents under the business-records
    exception to the hearsay rule. See Fed. R. Evid. 803(6).
    4. Burden under Celotex v. Catrett, 
    477 U.S. 317
    , 
    106 S. Ct. 2548
    (1986)
    26
    Case: 13-13953     Date Filed: 11/10/2014     Page: 27 of 35
    The Maduras argue that BOA failed to meet its burden on summary
    judgment under Celotex to identify the parts of the record that indicate the absence
    of a genuine issue of material fact. The Maduras’ argument lacks merit. The
    Supreme Court in Celotex held that “a party seeking summary judgment always
    bears the initial responsibility of informing the district court of the basis for its
    motion, and identifying those portions of ‘the pleadings, depositions, answers to
    interrogatories, and admissions on file, together with the affidavits, if any,’ which
    it believes demonstrate the absence of a genuine issue of material fact.” 
    Celotex, 477 U.S. at 323
    , 106 S. Ct. at 2553. BOA provided a “Statement of Undisputed
    Facts,” which identified the portions of the record that it believed demonstrated the
    absence of a genuine issue of material fact.
    5. Ex Parte Communications
    The Maduras appear to argue the district judge engaged in prohibited ex
    parte communications, when she acquired the original loan documents from BOA.
    Under Florida law, “a party who seeks to foreclose on a mortgage must produce
    the original note.” Deutsche Bank Nat’l Trust Co. v. Clarke, 
    87 So. 3d 58
    , 61 (Fla.
    4th Dist. Ct. App. 2012). The district judge ordered BOA to produce the original
    note, as required under Florida law. BOA’s subsequent tendering of the note was
    not an impermissible ex parte communication.
    27
    Case: 13-13953     Date Filed: 11/10/2014    Page: 28 of 35
    6. Statute of Limitations for Foreclosure Actions
    The Maduras argue the statute of limitations to file for foreclosure in this
    case began to run on April 23, 2007, based on Countrywide’s first notice of
    default. They contend BOA filed for foreclosure on May 2, 2012, after the
    deadline to file had expired. In Florida, an action to foreclose a mortgage must be
    brought within five years after the right to foreclose accrues. Fla. Stat. §
    95.11(2)(c). The statute of limitations on a mortgage foreclosure action does not
    begin to run until the last payment is due, unless the mortgage contains an
    acceleration clause. Locke v. State Farm Fire & Cas. Co., 
    509 So. 2d 1375
    , 1377
    (Fla. 1st Dist. Ct. App. 1987). When the mortgage contains an acceleration clause,
    the statute of limitations begins to run when the loan is accelerated. See 
    id. If an
    acceleration clause is absolute, then the entire indebtedness becomes due
    immediately upon default, but if the acceleration clause is optional, acceleration of
    the payments does not occur unless the option is exercised. Cook v. Merrifield,
    
    335 So. 2d 297
    , 299 (Fla. 1st Dist. Ct. App. 1976).
    The Maduras’ mortgage contains an optional acceleration clause. In
    accordance with the acceleration clause, BOA sent the Maduras a default letter on
    April 23, 2007, which notified them that the failure to cure the default on or before
    May 23, 2007, would result in the acceleration of their loan and commencement of
    a foreclosure proceeding. The district judge concluded BOA accelerated the loan
    28
    Case: 13-13953     Date Filed: 11/10/2014     Page: 29 of 35
    on May 23, 2007, when the Maduras failed to cure the default. Although BOA
    argues it did not accelerate the loan until it filed this foreclosure action, we need
    not decide that issue, because the loan was accelerated on May 23, 2007, at the
    earliest. Accordingly, BOA timely filed its counterclaim for foreclosure within the
    five-year deadline, on May 2, 2012.
    7. Forensic Document Examination Reports Under Daubert
    The Maduras argue the district judge abused her discretion by striking and
    refusing to consider Vastrick’s forensic-document-examination reports. They
    further contend the judge abused her discretion by refusing to hold a Daubert
    hearing. We review a district judge’s exclusion of expert reports for abuse of
    discretion. Corwin v. Walt Disney Co., 
    475 F.3d 1239
    , 1250 (11th Cir. 2007). “As
    the Supreme Court recognized in Daubert . . . [Federal Rule of Evidence 702]
    contemplates that the district court will serve as a gatekeeper to the admission of
    scientific testimony.” Tampa Bay 
    Water, 731 F.3d at 1183
    . Under Daubert and its
    progeny, we conduct a three-part inquiry to determine the admissibility of expert
    testimony, weighing whether (1) the expert is qualified to testify competently
    regarding the matters he intends to address; (2) the methodology by which the
    expert reaches his conclusions is sufficiently reliable; and (3) the testimony assists
    the trier of fact, through the application of scientific, technical, or specialized
    expertise, to understand the evidence or to determine a fact in issue. 
    Id. Although 29
                 Case: 13-13953     Date Filed: 11/10/2014   Page: 30 of 35
    Daubert hearings “are often helpful,” they are not a prerequisite to determine the
    admissibility of expert testimony under the Federal Rules of Evidence or
    established law. 
    Corwin, 475 F.3d at 1252
    n.10.
    The district judge did not abuse her discretion by striking Vastrick’s forensic
    reports. Although Vastrick likely was qualified to testify competently about
    document forgery and alteration, based upon the information in his curriculum
    vitae, no record evidence sets forth the specific methodology Vastrick used to
    make his findings or stated whether his methods were sufficiently reliable.
    Consequently, the Maduras have not met the three-part test under Daubert to allow
    the admissibility of Vastrick’s reports. Tampa Bay 
    Water, 731 F.3d at 1183
    .
    Furthermore, the district judge was well within her discretion in refusing to hold a
    Daubert hearing, because the record evidence failed to meet the Daubert
    requirements on its face. 
    Corwin, 475 F.3d at 1252
    n.10.
    8. The Doctrine of Laches
    The Maduras further argue the doctrine of laches estopped BOA from
    pursuing foreclosure. They contend BOA purposefully delayed filing for
    foreclosure in order to accrue additional interest on the loan. The equitable
    doctrine of laches “prevents a plaintiff who has slept on his rights from enforcing
    those rights against a defendant.” Peter Letterese & Assocs., Inc. v. World Inst. of
    Scientology Enters., 
    533 F.3d 1287
    , 1319 (11th Cir. 2008). The doctrine generally
    30
    Case: 13-13953     Date Filed: 11/10/2014   Page: 31 of 35
    “does not come into play until the period prescribed by the applicable statute of
    limitations has expired.” Briggs v. Estate of Geelhoed, 
    543 So. 2d 332
    , 333 (Fla.
    4th Dist. Ct. App. 1989). Laches may apply, however, “when an unreasonable
    delay results in prejudice to the rights of the party against whom enforcement of a
    debt or other obligation is sought.” 
    Id. The doctrine
    of laches does not bar BOA from foreclosing on the Maduras’
    mortgage. BOA timely filed the foreclosure counterclaim within the applicable
    statute of limitations, and the Maduras have not established BOA unreasonably
    delayed in bringing the action. Although the Maduras argue the delay in the action
    resulted in prejudice to them, their argument lacks merit. Moreover, the Maduras
    benefitted from any delay by continuing to reside in their home for several years
    without making any payments on their loan.
    9. Documentary Taxes
    The Maduras argue BOA failed to pay the required documentary taxes on
    the note and, as a result, may not foreclose on their mortgage. This argument is
    unavailing. In Florida, “in an action to enforce a promissory note the plaintiff must
    establish, as a condition precedent to pursuing the action, that the [documentary]
    taxes due on the note have been paid.” Somma v. Metra Elecs. Corp., 
    727 So. 2d 302
    , 304 (Fla. 5th Dist. Ct. App. 1999) (citing Fla. Stat. § 201.08(1) (1997)). The
    July 26, 2000, promissory note at issue in this case states: “The state documentary
    31
    Case: 13-13953      Date Filed: 11/10/2014    Page: 32 of 35
    tax due on this Note has been paid on the mortgage securing this indebtedness.”
    ROA at 4351. The Maduras provide no evidence to the contrary.
    10. Conditions Precedent to Foreclose
    The Maduras argue BOA failed to comply with paragraph 22 of the
    mortgage, which set forth the requirements for notifying them of a default. They
    further argue BOA failed to comply with a particular consent judgment and with
    certain United States Department of Housing and Urban Development (“HUD”)
    regulations, which they contend are prerequisites to foreclosure.
    Under the terms of the mortgage at issue in this case, the lender had to give
    notice to the Maduras prior to acceleration following the Maduras’ breach. The
    notice specifically had to specify “(a) the default; (b) the action required to cure the
    default; (c) a date, not less than 30 days from the date the notice is given to
    Borrower, by which the default must be cured; and (d) that failure to cure the
    default on or before the date specified in the notice may result in acceleration.”
    ROA at 4362.
    BOA and its predecessors complied with all conditions precedent to
    foreclosure. In the first notice of default, dated April 23, 2007, Countrywide
    informed Madura that his loan was in default, and that in order to cure the default,
    he had to pay $8,259.88, plus any additional regular monthly payment or
    payments, late charge, and fees and charges, which became due on or before May
    32
    Case: 13-13953    Date Filed: 11/10/2014    Page: 33 of 35
    23, 2007. The notice also stated Countrywide had to receive that sum on or before
    May 23, 2007, and the failure to cure the default would result in acceleration.
    Likewise, BOA’s re-notice of default informed Madura of the default and the
    actions required to cure the default. Although undated, the re-notice of default
    directed Madura to cure the default within 30 days. The Maduras’ arguments
    relating to a consent judgment and HUD regulations are unavailing. They have not
    explained how BOA failed to comply with the judgment and regulations, nor have
    they presented any evidence establishing that BOA failed to comply with them or
    that the failure to comply somehow prevented foreclosure.
    11. Unclean Hands
    The Maduras argue BOA had unclean hands, because it (1) breached the
    terms of the mortgage by sending improper notice of acceleration; (2) ratified
    Countrywide’s misconduct by obtaining a forged note; and (3) filed a wrongful
    foreclosure, because it knew the note and TILA Disclosure had been fabricated.
    This argument is fails. BOA provided proper notice of acceleration to the
    Maduras. In addition, preclusion principles bar the Maduras’ argument that BOA
    had unclean hands based on any forgery or fabrication of loan documents.
    12. Outstanding Discovery
    The Maduras also argue the district judge abused her discretion by ruling on
    summary judgment when numerous discovery motions were still pending. District
    33
    Case: 13-13953     Date Filed: 11/10/2014   Page: 34 of 35
    judges have broad discretion under Federal Rule of Civil Procedure 26 to compel
    or deny discovery. Harrison v. Culliver, 
    746 F.3d 1288
    , 1297 (11th Cir. 2014).
    We will not overturn a discovery ruling unless the district judge’s ruling resulted in
    substantial harm to an appellant’s case. 
    Id. Generally, summary
    judgment should
    not be granted until the nonmoving party has had an adequate opportunity to
    conduct discovery. Reflectone, Inc. v. Farrand Optical Co., 
    862 F.2d 841
    , 843
    (11th Cir. 1989) (per curiam). Nevertheless, there is no “blanket prohibition on the
    granting of summary judgment motions before discovery” is fully complete. 
    Id. The district
    judge did not abuse her discretion by denying the Maduras’
    repeated requests to compel additional discovery. Significantly, the district judge
    granted several of the Maduras’ discovery motions and ordered BOA to produce
    certain records. Moreover, the judge extended the discovery deadline, in response
    to requests from both BOA and the Maduras, in order to permit the conclusion of
    depositions and other production. Having allowed the parties to engage in
    extensive discovery, the district judge did not abuse her discretion by denying
    additional discovery. The Maduras have failed to explain how the denial of certain
    discovery rulings resulted in substantial harm to their case. To the extent they
    argue they were harmed because of fraud and alleged forgery concerning their loan
    documents, those arguments are barred.
    34
    Case: 13-13953     Date Filed: 11/10/2014     Page: 35 of 35
    C. Miscellaneous Motions
    Finally, the Maduras challenge numerous orders striking or denying various
    motions, including motions to dismiss BOA’s foreclosure counterclaim and
    motions for summary judgment on BOA’s foreclosure counterclaim. The district
    judge did not abuse her discretion by striking or denying any of the Maduras’
    referenced motions. The Maduras filed many of their motions well past the
    deadlines to file amended pleadings or to file dispositive motions, and they filed
    other motions in violation of the district court’s local rules. We give “great
    deference to a district court’s interpretation of its local rules.” Fils v. City of
    Aventura, 
    647 F.3d 1272
    , 1282-83 (11th Cir. 2011) (citation and internal quotation
    marks omitted). Likewise, we defer to the district judge’s “inherent authority to
    manage [her] own docket ‘so as to achieve the orderly and expeditious disposition
    of cases.’” Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc.,
    
    556 F.3d 1232
    , 1240 (11th Cir. 2009) (quoting Chambers v. NASCO, Inc., 
    501 U.S. 32
    , 43, 
    111 S. Ct. 2123
    , 2132 (1991)).
    III. CONCLUSION
    The Maduras have failed to establish a genuine dispute of material fact on
    their RESPA claims or the foreclosure counterclaim, and BOA has established it is
    entitled to summary judgment as a matter of law.
    AFFIRMED.
    35
    

Document Info

Docket Number: 13-13953

Filed Date: 11/10/2014

Precedential Status: Non-Precedential

Modified Date: 4/17/2021

Authorities (21)

Access Now, Inc. v. Southwest Airlines Co. , 385 F.3d 1324 ( 2004 )

EQUITY LIFESTYLE PROPERTIES v. Florida Mowing and Landscape ... , 556 F.3d 1232 ( 2009 )

Roderic R. McDowell v. Pernell Brown , 392 F.3d 1283 ( 2004 )

Reflectone, Inc. v. Farrand Optical Company, Inc., Farrand ... , 862 F.2d 841 ( 1989 )

David W. Ellis, Jr. v. Gordon R. England , 432 F.3d 1321 ( 2005 )

Orrin Monroe Corwin v. Walt Disney Company , 475 F.3d 1239 ( 2007 )

Fils v. City of Aventura , 647 F.3d 1272 ( 2011 )

Peter Letterese & Associates, Inc. v. World Institute of ... , 533 F.3d 1287 ( 2008 )

Cook v. Merrifield , 335 So. 2d 297 ( 1976 )

Locke v. ST. FARM FIRE AND CAS. CO. , 509 So. 2d 1375 ( 1987 )

Molinos Valle Del Cibao, C. Por A. v. Lama , 633 F.3d 1330 ( 2011 )

Timson v. Sampson , 518 F.3d 870 ( 2008 )

Itel Capital Corporation, a Corporation, Cross-Appellant v. ... , 707 F.2d 1253 ( 1983 )

Ronald Basil Hart, Jr. v. Yamaha-Parts Distributors, Inc., ... , 787 F.2d 1468 ( 1986 )

Briggs v. Estate of Geelhoed Ex Rel. Johnson , 543 So. 2d 332 ( 1989 )

Somma v. Metra Electronics Corp. , 727 So. 2d 302 ( 1999 )

Perry v. Fairbanks Capital Corp. , 888 So. 2d 725 ( 2004 )

Riggs v. AURORA LOAN SERVICES, LLC , 36 So. 3d 932 ( 2010 )

Celotex Corp. v. Catrett, Administratrix of the Estate of ... , 106 S. Ct. 2548 ( 1986 )

Chambers v. Nasco, Inc. , 111 S. Ct. 2123 ( 1991 )

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