Madura v. Bac Home Loans Servicing, LP

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: PER CURIAM
• Decision Date: 10 November 2014
• Docket Number: No. 13-13953,13-13953
• Citation: Madura v. Bac Home Loans Servicing, LP, No. 13-13953 (11th Cir. Nov 10, 2014)
• Parties: ANDRZEJ MADURA, ANNA DOLINSKA-MADURA, Plaintiffs-Counter Defendants-Counter Claimants-Appellants, v. 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., Third Party Defendants.

ANDRZEJ MADURA, ANNA DOLINSKA-MADURA, Plaintiffs-Counter Defendants-Counter Claimants-Appellants, v. 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., Third Party Defendants.

No. 13-13953

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

November 10, 2014

[DO NOT PUBLISH]

Non-Argument Calendar

D.C. Docket No. 8:11-cv-02511-VMC-TBMAppeal from the United States District Court for the Middle District of Florida

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.

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,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-lawclaims 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 statutorydamages 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 amendedcomplaint, 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,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.

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...