Madura v. BAC Home Loans Servicing L.P., Case No.: 8:11-cv-2511-T-33TBM

• Court: U.S. District Court — Middle District of Florida
• Writing for the Court: VIRGINIA M. HERNANDEZ COVINGTON
• Decision Date: 17 July 2013
• Docket Number: Case No.: 8:11-cv-2511-T-33TBM
• Citation: Madura v. BAC Home Loans Servicing L.P., Case No.: 8:11-cv-2511-T-33TBM (M.D. Fla. Jul 17, 2013)
• Parties: ANDRZEJ MADURA and ANNA DOLINSKA-MADURA, Plaintiffs, v. BAC HOME LOANS SERVICING L.P., ET AL., Defendants. BANK OF AMERICA, N.A., Counter-Plaintiff, v. ANDRZE J. MADURA and ANNA DOLINSKA-MADURA, Counter-Defendants. BANK OF AMERICA, N.A., Third Party Plaintiff, v. CIT LOAN CORPORATION, ET AL., Third Party Defendants.

ANDRZEJ MADURA and ANNA DOLINSKA-MADURA, Plaintiffs,

v.BAC HOME LOANS SERVICING L.P., ET AL., Defendants.

BANK OF AMERICA, N.A., Counter-Plaintiff,

v.ANDRZE J. MADURA and ANNA DOLINSKA-MADURA, Counter-Defendants.

BANK OF AMERICA, N.A., Third Party Plaintiff,

v.CIT LOAN CORPORATION, ET AL., Third Party Defendants.

Case No.: 8:11-cv-2511-T-33TBM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

DONE and ORDERED July 17, 2013

ORDER

This matter comes before the Court pursuant to Bank of America, N.A.'s Motion for Summary Judgment (Doc. # 359) and Statement of Undisputed Facts (Doc. # 360), both filed on December 31, 2012, and Bank of America's Supplement (Doc. #385), filed on February 8, 2013.¹ Andrzej Madura and Anna Dolinska-Madura, who are proceeding pro se, filed a Response in Opposition to Bank of America's Motion for Summary Judgment (Doc. # 416) on March 26, 2013. The Maduras also filed their "Rule 56(d)(2) Verified Declaration that due to Incompleted Discovery; the Bank's Refusal to Test the Age of its Allonge and Hiding the Acctual Loan Owner they may not Present Facts Essential to Justify Fully Opposition to Bank's Standing upon said Allonge in Response to the Bank's Motion for Summary Final Judgment (Doc. # 359)" on January 11, 2013. (Doc. # 381).

On February 19, 2013, the Maduras filed their initial Motion to Strike the Affidavit of "Brieranne Siriwan Attempting to Support Bank of America's Motion for Final Summary Judgment" (Doc. # 393) and thereafter on April 8, 2013, the Maduras filed their "Rule 37(c) Emergency Verified Motion to Exclude Affidavit of Brieanna Sirivan and Certain Exhibits in the Bank's Statement of Undisputed Facts" (Doc. #437). Bank of America failed to respond to the initial Motion to Strike Brieanne Siriwan's Affidavit, but on March 27, 2013, did respond to the Maduras' second Motion to Strike Brieanne Siriwan's Affidavit. (Doc. # 419). On April 9, 2013, the Maduras filed their "Emergency Verified Motion to Strike and/or Exclude Never Delivered to Closing Forged and Inadmissible as Hearsay Adjustable Rate Note Attached to the Bank of America's NA (Bank) Motion for Final S.J. and a Motion for Imposing Sanction in Form of Dismissal and/or denying the Bank's Motion for Final Summary Judgment due to the Bank's Attempt to Commit Fraud upon the Court." (Doc. # 441). Bank of America did not respond to this Motion to Strike.

Also before the Court is the Maduras' March 26, 2013, "Motion for Partial Summary Judgment as to Issue of Bank of America NA Lack of Standing to Foreclose." (Doc. # 415). Bank of America filed a Response in Opposition on April 29, 2013 (Doc. # 451), and the Maduras filed a Reply (Doc. # 468) on May 24, 2013. In addition, Bank of America filed its Motion in Limine to Strike or Exclude the Forensic Document Examination Reports of Thomas Vastrick (Doc. # 454) on April 30, 2013. The Maduras responded on May 6, 2013. (Doc. # 458).

On June 28, 2013, the Maduras filed "Counterdefendants' Motion for Leave to File a Response to the Bank's SummaryJudgment Arguments as to Amended Complaint Filed as (Doc. 77-2) in Response to the Court's Order (Doc. 476)" (Doc. # 480) and "Counterdefendants' Motion to Strike, or in Alternative, to Exclude Amended Complaint (Doc. 477-2) filed in Bank of America NA (Bank) Notice of Filing Documents (Doc. 477) in Alleged Response to the Court's Order (Doc. 476) as Not Responsive to the Said Order" (Doc. # 482). Bank of America responded to this motion on July 2, 2013. (Doc. # 486). Also before the Court is "Counterdefendants' Motion this Court Deny Bank of America NA Request this Court to Take Judicial Notice From Small Claim Court Amended Complaint Due to the Bank's Willful and Repeat Direct Violation of the Court's Order (Doc. 467) and Fla. And Fed. R. Civ. Pr., and for an Order to Show Cause Why Sanctions Should not be Imposed for the Bank's Attempts to Mislead the Court" (Doc. # 487), filed on July 8, 2013.

For the reasons that follow, the Court grants Bank of America's Motion for Summary Judgment and grants Bank of America's Motion in Limine as to the Forensic Reports of Thomas Vastrick. The Court denies the motions filed by the Maduras.

I. Background

A. The Madura Loan and Default

Full Spectrum Lending made a $87,750.00 loan to Mr. Madura on July 26, 2000 (the "Loan"). (Siriwan Aff. Doc. # 360-1 at ¶ 4). On that same day, Mr. Madura signed a promissory note (the "Note") (Doc. # 360-2) and both Mr. Madura and Mrs. Madura signed a mortgage in favor of Full Spectrum Lending, which encumbered their real property located at 3614 57th Ave Drive West, Bradenton, Florida, 34210 (the "Mortgage"). (Doc. # 360-3). Mr. Madura also signed an arbitration agreement at the loan closing. (Doc. # 360-4). Upon request of the Court, Bank of America has furnished the original loan documents, including the Note, to the Court. The Court has directed the that the documents be filed with the Clerk's Office in a secure location.

As of April 27, 2009, Countrywide Home Loans, Inc. changed its name to BAC Home Loans Servicing, L.P. (Doc. # 360-18). On April 30, 2009, BAC Home Loans Servicing, L.P. purchased the Madura loan. (Siriwan Aff. Doc. # 360-1 at ¶ 7; Doc. # 360-6). On July 1, 2011, BAC Home Loans Servicing, L.P. merged with and into Bank of America, N.A. (Siriwan Aff. Doc. # 360-1 at ¶ 8; Doc. # 360-19). Bank of America, N.A. notified Mr. Madura when the ownership and servicer rights of the loan were transferred from BAC Home Loans Servicing, L.P. to Bank of America, N.A. (Doc. # 360-7).

The loan has been in default since November 1, 2006, when Mr. Madura failed to make the monthly payment due November 1, 2006. (Siriwan Aff. Doc. # 360-1 at ¶ 10). Countrywide Home Loans sent Mr. Madura a notice of default and acceleration, (Doc. # 360-9) on April 23, 2007. Bank of America sent Mr. Madura its "Re-Notice of Default and Acceleration" (Doc. # 360-10) on February 27, 2012. (Siriwan Aff. Doc. # 360-1 at ¶ 12). At this juncture, Bank of America contends that the Maduras owe $180,238.50 for the following:

Principal Balance: $86,017.57

Interest through 12/31/2012: $77,264.61

Pre-acceleration Late Fees: $1,385.54

Tax Disbursements: $14,817.28

Property Inspection: $753.50

(Id. at ¶ 10). Presumably, additional interest has accrued since the filing of the present motions.

B. Litigation History

1. Madura 1

On May 1, 2002, the Maduras filed a state court action against Full Spectrum Lending and Countrywide Home Loans, Inc. in Manatee County, Florida under case No. 2002 CA 2358 ("Madura 1"). (Doc. # 360-11). On August 5, 2002, the state court determined that all of the claims raised by the Maduras were subject to the arbitration agreement that Mr. Madura admittedly signed at the loan closing. (Doc. # 360-12). Allappeals from Mr. Madura in Madura 1 were ultimately denied or dismissed. Madura v. Full Spectrum Lending, Inc., 972 So. 2d 169 (Fla. 2007).

Thereafter, Mr. Madura opted to litigate through his wife, and on July 15, 2003, Mrs. Madura filed an amended complaint against Countrywide (notwithstanding the fact that the Maduras did not arbitrate, despite being ordered to do so). The state court granted summary judgment in favor of Countrywide on June 22, 2005. The Maduras filed multiple appeals, including an appeal to the U.S. Supreme Court, and none were successful. Madura v. Full Spectrum Lending, Inc., 06-9074, 550 U.S. 920 (2007).

2. Madura 2

On November 6, 2006, the Maduras sued Countrywide again, but this time in Federal Court: Madura v. Full Spectrum Lending, Inc. and Countrywide Home Loans, Inc., 8:06-cv-2073-T-24TBM ("Madura 2"). The claims in Madura 1 and Madura 2 were virtually identical. On December 7, 2007, the Honorable Susan C. Bucklew, United States District Judge, dismissed Mr. Madura's claims in favor of arbitration, finding that he was bound by the arbitration agreement. Mr. Madura filed multiple, futile motions to amend the complaint, which Judge Bucklew denied. The court granted summary judgment in favor ofCountrywide on July 22, 2008. (Doc. # 360-13). On appeal, the Eleventh Circuit affirmed. (Doc. # 360-14).

3. Madura 3

The Maduras filed a state court action against Bank of America on January 29, 2010, under Case No. 41 2010 CA 830, which Bank of America removed to this Court on February 25, 2010, case 8:10-cv-523-T-33AEP ("Madura 3"). Removal was predicated upon the presentation of a federal question, namely the Maduras' contention that Bank of America violated the Truth in Lending Act, 15 U.S.C. § 1601, et seq. The Maduras' Amended Complaint filed in that action arrayed the following counts against Bank of America:

(1) "Declaratory Judgment under § 86.011, Florida Statute;"

(2) "Alternative Declaratory Judgment as to Mr. Madura;"

(3) "Forgery;"

(4) "Fraudulent Notarization;"

(5) "Violation of § 817/034(4)(b)(1), Florida Communication Act;"

(6) "Intentional Spoliation of the Loan Instruments;"

(7) "Intentionally Sending Derogatory and Inaccurate Reports to Credit Bureaus;"

(8) "Utterly of Forged Instruments in the Public Records;"

(9) "Unauthorized Paid Maduras Taxes in Advance O When They Werte Due;"

(10) "RICO" and

(11) "Two Declaratory Judgments Under §§ 86.011, F.S."

(Madura 3, Doc. # 17).

On July 16, 2010, this Court entered an Order in Madura 3 dismissing the action with prejudice. (Id. at Doc. # 51). This Court specified: "Each and every claim that has been advanced in this action against Bank of America has been addressed and finally adjudicated by the Manatee County Circuit Court in Madura 1 and the present court by Judge Bucklew in Madura 2. The appellate process in those cases has run its course." (Id.).

In Madura 3, this very Court highlighted the frivolous nature of the Maduras' claims as follows:

In 2001, the Maduras contacted Countrywide and asked to pay off the loan early. (Doc. 17 at ¶ 12). Countrywide sent Plaintiffs a "Payoff Demand" that included a prepayment penalty of approximately $5,000. (Id.) Plaintiffs disputed the penalty and

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