Anthony v. Anthony

• Decision Date: 27 July 2009
• Docket Number: No. 08-21520-CIV.,08-21520-CIV.
• Citation: 642 F.Supp.2d 1366
• Court: U.S. District Court — Southern District of Florida
• Parties: Lori J. ANTHONY, Plaintiff, v. Harry M. ANTHONY; MCM Consulting & Management, LLC; Countrywide Home Loans, Inc.; Countrywide Bank, FSB; Shellie Robertson; and Tonya Friend, Defendants.

642 F.Supp.2d 1366

Lori J. ANTHONY, Plaintiff, v. Harry M. ANTHONY; MCM Consulting & Management, LLC; Countrywide Home Loans, Inc.; Countrywide Bank, FSB; Shellie Robertson; and Tonya Friend, Defendants.

No. 08-21520-CIV.

United States District Court, S.D. Florida, Miami Division.

July 27, 2009.

COPYRIGHT MATERIAL OMITTED

William P. Heller, Jeffrey Trinz, Kimberly A. Leary, Akerman Senterfitt & Eidson, Fort Lauderdale, FL, for Defendants.

David P. Herman, Rollin Montclair Smith, Murray Morin & Herman, Coral Gables, FL, for Plaintiff

ORDER GRANTING SUMMARY JUDGMENT

JOSE E. MARTINEZ, District Judge.

THIS CAUSE came before the Court upon Plaintiff's Motion for Partial Summary Judgment (D.E. No. 35) and the Countrywide Defendants' Motion for Summary Judgment (D.E. No. 51). For the reasons set forth below, Plaintiff's Motion for Partial Summary Judgment is denied, and Defendant's Motion for Summary Judgment is granted.

I. Procedural History and Preliminary Matters

Plaintiff brought the above-captioned action in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida on April 30, 2008, asserting claims under the Truth in Lending Act, 15 U.S.C. § 1601 et seq. ("TILA") and Florida's Deceptive and Unfair Trade Practices Act against Corporate Defendants MCM Consulting & Management, LLC ("MCM"), Countrywide Homeloans, Inc., and Countrywide Bank, FSB (collectively "Countrywide" or "Countrywide Defendants"), and against individual Defendants Harry M. Anthony, Shellie Robertson, and Tonya Friend (D.E. No. 1, Exh. B). In addition, Plaintiff asserted claims for fraud in the inducement and conversion against Defendants Harry M. Anthony and MCM. She also asserted a claim for fraudulent notarization against Defendant Tonya Friend. On May 28, 2008, the Countrywide Defendants removed this action to federal court on federal question grounds (D.E. No. 1). Default judgment was granted against MCM and Harry M. Anthony on November 21, 2008 (D.E. No. 38). The Court granted Plaintiff an extension of 120 days to serve individual Defendants Shellie Robertson and Tonya Friend. That deadline has passed and, to date, Plaintiff has not filed proof of service, despite deposing Tonya Friend.

Additionally, Plaintiff has brought a motion to strike the affidavit of Lanisa Jenkins, a loss recovery manager in the Countrywide's Risk Management Department (D.E. No. 60). Jenkins testified regarding the loan documents at issue in this case. Plaintiff asserts that because Jenkins was admittedly not present at the signing of these documents, which Plaintiff asserts are forgeries, her testimony should be stricken for lack of personal knowledge. Jenkins's affidavit, however, provides an evidentiary foundation for admitting the loan documents as business records pursuant to Federal Rule of Evidence 803(6). The authority cited by Plaintiff, United States v. Licavoli, 604 F.2d 613 (9th Cir. 1979), dealt with a trial judge's authority to exclude an expert witness's opinion when the expert's qualifications are seriously challenged and does not, in fact, support striking Jenkins's affidavit in this case. Accordingly, Plaintiff's motion to strike (D.E. No. 60) is denied.

II. Factual Background

During the time period at issue in this case, Plaintiff owned a home at 2601 Sea Island Dr., Fort Lauderdale, FL, 33301 ("the property" or "Plaintiff's home"), which was subject to a $2,000,000 first mortgage by Fifth Third Mortgage Co. and a $193,000 second mortgage for a home equity credit line with National City Bank (Pl. Aff.¶ 2, D.E. No. 35-2). Plaintiff paid a $10,000 monthly interest-only mortgage payment on the first mortgage. Id. In April 2007, Harry Anthony¹, a Defendant in this case, contacted Plaintiff about refinancing the loan on her home (Pl. Aff.¶ 3, D.E. No. 35-2). Plaintiff testified that he told her that she could take advantage of a very low rate that had come available, which would cause her monthly interest-only payments to fall to $6,902.40 per month and would not increase the $2,000,000 loan principal. Id. Plaintiff testified that Mr. Anthony also told her he could refinance the home equity mortgage to offer her an interest rate of approximately 3% instead of the 8.5% interest rate she was paying with National City Bank. Id. at ¶ 4. Plaintiff agreed to these terms. Id. at ¶¶ 3-4.

A promissory note and mortgage were executed on May 4, 2007 in the amount of $2,000,000 and bear signatures purported to be those of Plaintiff and her husband, Tonino Catalucci (Jenkins Aff. ¶ 2, D.E. No. 51). A home equity line of credit was also allegedly provided on May 4, 2007 in the amount of $212,000 and also bears a signature purported to be that of Plaintiff. Id. at ¶ 3. Countrywide's file contains a TILA Disclosure Statement and Notice of Right to Cancel for the mortgages that bear signatures purported to be Plaintiff's. Id. at ¶ 6. Lanisa Jenkins, a loss recovery manager for Countrywide, testified to the authenticity of these documents as business records maintained in accordance with Countrywide's regular course of business.

Plaintiff testified that a week after agreeing with Defendant Anthony that she would refinance her first and second mortgages, she received a letter from a closing agent dated May 8, 2007 (Plaintiff Aff. ¶ 5, D.E. No. 35-2). Plaintiff testified that the letter enclosed the documents associated with the refinancing, some of which are discussed above, and indicated that the refinancing had been consummated. Id. Plaintiff asserts, however, that these documents are forgeries, and she never signed them. Id. She specifically asserts that she signed neither the mortgages, nor the notes, nor the TILA disclosure statements. Id. She testified that her signatures on those documents are forgeries. Id. at ¶¶ 5, 7, 8. She further testified that she never received any documents reflecting the terms of the loan agreement which she discussed with Defendant Anthony and to which she agreed. Id. at ¶ 9.

Tonya Friend, a notary, testified that she was present for the execution of some refinancing documents with Plaintiff (Friend Dep. at 34, D.E. No. 92-2). She testified that the documents in evidence in this case, however, are not the documents that she notarized. Id. at 52-54, 62. She testified that it is her notary stamp² on the allegedly forged documents, but the "Tonya Friend" notary signature is not hers. Id. at 52-53, 62, 65-66, 68. Ms. Friend testified that she did not in fact notarize the documents now in evidence, and she did not in fact witness the closing they memorialize. Id. at 62-64. She also testified that, although she has met the Plaintiff, she never met Plaintiff's husband, whose signature is also on some of the allegedly forged documents. Id. at 55. Ms. Friend testified that she believed the "Borrower" signature on the documents to be that of Shellie Robertson, an assistant to Defendant Anderson.³ Id. at 22, 54, 63, 68-69.

Plaintiff testified that, upon receiving the alleged forgeries, she contacted Defendant Anthony to voice her concerns (Pl. Aff.¶ 3, D.E. No. 59-2). She testified that he responded that he would rectify the situation. Id. Plaintiff's first invoice from Countrywide indicated that she owed $6,902.40 for her first payment, which was the amount Defendant Anthony had represented she would owe. Id. at ¶ 4. Plaintiff continued making monthly payments of $7,000 to Countrywide until the loans were discharged in April 2008. Id.; (Jenkins Aff. ¶ 9, D.E. No. 51-2).

Plaintiff testified that she learned that Defendant Anthony had arranged to have the Countrywide invoices for her property sent to him, in order to conceal his fraudulent actions. Id. at ¶ 5. Once she received the invoices, Plaintiff noticed that the principal balance was increasing. Id. at ¶ 6. She stated that she contacted Defendant Anthony, who stopped returning her calls. Id. She testified that because the principal on her loan was increasing, she sought to sell her home, and she continued to make payments on the mortgages in order to avoid jeopardizing the sale. Id. at ¶ 7. Countrywide records show that Plaintiff did not inform Countrywide of the forgery until March 24, 2008, when her request for a waiver of the prepayment penalty on the refinance loan was denied (Jenkins Aff. ¶ 10, D.E. No. 51-2). The loans are now discharged. Id. at ¶ 9.

III. Legal Standard

A motion for summary judgment should be granted "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). By its very terms, this standard provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there will be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An issue of fact is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Matsushita Electric Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348. It is "material" if it might affect the outcome of the case under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In addition, in considering a motion for summary judgment, the Court is required to view the evidence in the light most favorable to the non-moving party. Id. at 255, 106 S.Ct. 2505.

If the moving party bears the burden of proof at trial, the moving party must establish all essential elements of the claim or defense in order to obtain summary judgment. See United States v. Four Parcels of Real Prop, in Greene and...