Mace v. M&T Bank, Case No: 2:20-cv-591-JLB-NPM

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
PartiesKENNETH MACE, Plaintiff, v. M&T BANK, Defendant.
Decision Date23 February 2021
Docket NumberCase No: 2:20-cv-591-JLB-NPM

KENNETH MACE, Plaintiff,
M&T BANK, Defendant.

Case No: 2:20-cv-591-JLB-NPM


February 23, 2021


Defendant M&T Bank (the "Bank") moves to dismiss Plaintiff Kenneth Mace's Complaint under Federal Rule of Civil Procedure 12(b)(6). (Docs. 4, 8.) Mr. Mace is suing the Bank primarily for damaging a property that the Bank temporarily owned due to a foreclosure judgment and resultant sale. Both the judgment and the sale were reversed after Mr. Mace successfully appealed, but the property was returned to him in a dilapidated state.

Instead of challenging Counts I (negligence) and II (unjust enrichment) as pleaded, the Bank's motion relies primarily on the affirmative defense that it cannot be liable to Mr. Mace because, at all relevant times, it acted under then-valid court orders. It is unclear whether this defense is applicable to the facts alleged in the Complaint, which the Court must view in the light most favorable to Mr. Mace. The Court therefore finds that the Bank's argument as to Counts I and II is premature. But the Court will require Mr. Mace to amend his malicious

Page 2

prosecution claim in Count IV. Accordingly, the Bank's Motion (Doc. 8) is GRANTED IN PART and DENIED IN PART.


This removal action arose from a series of foreclosures that the Bank launched against Mr. Mace in Florida state court. Between 2007 and 2012, the Bank attempted to foreclose on Mr. Mace's property three separate times. (See Doc. 4 at 2-3.) The Complaint implies that the property was not Mr. Mace's personal residence, but instead an investment property that he was renting to a third party. (Id. at 4.) Ultimately, the Bank was unsuccessful in these three foreclosure attempts, and the state trial court dismissed each action. (Id. at 2-3.)

The focus of Mr. Mace's Complaint is the Bank's fourth and final foreclosure action, commenced on April 16, 2015. The Bank obtained a final judgment of foreclosure on July 21, 2016. (Doc. 4 at 3.) Mr. Mace appealed this judgment, hoping to stay the foreclosure pending resolution of that appeal; he also sought to

Page 3

cancel the Bank's sale of the property. (Id.) His attempts were unsuccessful, and the Bank purchased the property at a public sale on August 26, 2019. (Id.)

Nearly three and a half years later, however, the Florida Second District Court of Appeal ("Second DCA") reversed the final judgment of foreclosure with instructions to dismiss the foreclosure action on remand. Mace v. M&T Bank, 292 So. 3d 1215, 1232 (Fla. 2d DCA 2020). As a result, on May 26, 2020, the state trial court vacated its final judgment of foreclosure and the foreclosure sale, returning ownership of the property to Mr. Mace. (Doc. 4 at 4.) But according to Mr. Mace, the property had become worthless. (Doc. 4 at 4.) Specifically, Mr. Mace alleges that the Bank allowed the previously marketable property to fall into a state of "extreme disrepair." (Id.) In fact, the county even condemned the property as "unfit for human occupancy" and scheduled the property's demolition. (Id.)

Mr. Mace now sues the Bank for negligence (Count I), unjust enrichment (Count II), conversion (Count III), and malicious prosecution (Count IV).2 He seeks damages for the cost of repairing or replacing the property, along with lost rent. (See Doc. 4.) The Bank, for its part, argues that Mr. Mace's claims fail as a matter of law because the Bank was the rightful property owner from August 26, 2016 (the date of the sale in the fourth foreclosure action) to May 26, 2020 (the date when the state trial court reversed the sale). Lastly, the Bank argues that Mr.

Page 4

Mace has not properly pleaded lack of probable cause, a necessary element of malicious prosecution, so the fourth claim also fails.


I. As to Counts I and II, the Bank is Raising an Affirmative Defense Which Does Not Appear on the Face of the Complaint.

"Federal courts sitting in diversity apply the substantive law of the state in which the case arose." Pendergast v. Sprint Nextel Corp., 592 F.3d 1119, 1132 (11th Cir. 2010) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)). The Bank moves for dismissal of Counts I and II, and relies almost exclusively on Laird v. Vogel, 334 So. 2d 650, 651 (Fla. 3d DCA 1976) for the proposition that it cannot be liable for any damage to the property during the Bank's ownership (i.e., until the Second DCA reversed the state trial court's final judgment of foreclosure).3 Accordingly, a summary of Laird is instructive.

There, the Florida Third District Court of Appeal ("Third DCA") affirmed summary judgment for defendants Charlotte Vogel and Herman Cohen, holding that "[a] judgment or decree which is voidable . . . affords complete protection to one who acts in reliance upon the adjudication." 334 So. 2d at 651. The underlying dispute grew out of a tax sale of plaintiff Agnes Laird's property. Id. at 650. Despite previously representing Ms. Laird, Mr. Cohen represented Ms. Vogel (his sister) in the unlawful detainer action against Ms. Laird. The state trial court

Page 5

entered an order of possession and a writ of assistance in Ms. Vogel's favor. Id. That same trial court later rescinded its judgment and order, restoring Ms. Laird as the owner, but not before Ms. Vogel removed Ms. Laird's belongings and damaged them in the process. Id. Thus, Ms. Laird sued Ms. Vogel and Mr. Cohen for fraud, deceit, malicious prosecution, and abuse of process. Id.

The Third DCA held that Ms. Laird did "not have an action against" Ms. Vogel and Mr. Cohen. Id. at 651. In reaching this conclusion, the court...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT