Professional Documents
Culture Documents
14-15375-BB
Plaintiffs-Appellants
v.
of the trial judge, attorneys, persons, firms, partnerships, and corporations with any
Group, Inc.
Conway, Anne C., Chief United States District Judge
Cox, Kevin W., Attorney for Defendant – Appellee Urban Settlement Services
Dickey, Alex P., Shareholder holding 10% of more stock of Carlisle &
i
Echeverria, Abdiel, Plaintiff – Appellant
Engle, Meghan D., Attorney for Defendant – Appellee Carlisle & Gallagher
Inc.
Sanders, Charles (“Chuck”), Owner and CEO of Urban Settlement Services
ii
Soles, Gary Robert, Attorney for Defendant – Appellee Carlisle & Gallagher
UrbanLink Corporation, as parent company of Defendant Urban Settlement
– Appellee.
iii
TABLE OF CONTENTS
Page(s)
CERTIFICATE OF INTERESTED
TABLE OF CONTENTS…...................................................................................iv
TABLE OF AUTHORITIES..................................................................................vi
INTRODUCTION...................................................................................................1
I. ARGUMENT..................................................................................................2
………………………………………………………………….2
1. Fraud Vitiates All Judgments.....................................................2
Parties.......................................................................................9
Notifications Occur...........................................................11
iv
Page(s)
………………………....…….
……14
……..…19
1. The District Court Ignored Plaintiffs’ Claims Of
Discovery Abuse.……………………...………...
……………………….19
………………………………………………………….
…….24
……………….26
II. CONCLUSION............................................................................................27
TABLE OF AUTHORITIES
Capital Bank v. Needle, 596 So.2d 1134, 1138 (Fla. 4th DCA 1992).....................11
Carmine v. Bowen, 64 A. 932…..............................................................................26
Colon-Millin v. Sears Roebuck De Puerto Rico, Inc., 455 F.3d 30, 37 (1st
………………………………………………………………..5
………..5
Fair v. Tampa Electric Co., 27 So. 2d 514, 515 (Fla. 1946) (footnote)....................3
……………22
…………….2
Israel Discount Bank Ltd. v. Entin, 951 F.2d 311, 314 (11th Cir.1992)
…………..4
…………………………………………5
vi
…………………………………………5
Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980) ………………..
……22
……..5
Southern Development Co. v. Silva, 125 U.S. 247, 8 S.Ct. 881, 31 L.Ed.(1887)...26
F.R.D. 350,
Star Funding Solutions, LLC v. Krondes, 101 So.3d 403, 403 (Fla. 4th DCA 2012)
……………………...……………………………………………………………..11
………………….….5
U.S. Bank Nat'l Ass'n v. Bartram, 140 So.3d 1007, 1014 (Fla.
……………………………………………26
……..26
………5
vii
RULES Page(s)
LOCAL RULES
SECONDARY SOURCES
Freeman On Judgments..........................................................................................20
viii
INTRODUCTION
escape liability for the flagrant harm committed against the Appellants, the
Appellees/Defendants offer this court an incorrect view of the facts of this case.
The Appellees once again try to escape responsibility via res judicata and privity
and continue to evade the “on-going” acts committed against the Appellants and
which include their on-going illegal behavior and their blatant misconduct,
conceal material information from the Appellants of this current action. The
Appellees expect that this appellate court affirm without careful scrutiny the
I. ARGUMENT
The Supreme Court has rules and affirmed the principle that, "Justice
must satisfy the appearance of justice." Levine v. United States, 362 U.S. 610, 80
In the present case, Appellants had no choice but to amend their state court
complaint, thereby creating a basis for federal jurisdiction and adding more
evidence and events that transpired. The Appellees mutually evade and try to divert
the court’s attention from anything that would substantiate the Appellants’ current
claims or the fraud they have committed in the district court and against the
Appellants. For the reasons explained below, res judicata does not apply to the
current action.
1. Fraud Vitiates All Judgments.
The United States Supreme Court has stated for at least ninety years that
only “in the absence of fraud or collusion” does a judgment from a court with
jurisdiction operate as res judicata. Riehle v. Margolies, 279 U.S. 218, 225 (1929).
(1944).
In practice, fraud embraces all the multifarious means that human ingenuity
can devise for one person to gain an advantage over another by false suggestion or
suppression of the truth. No final, invariable rule can be laid down in defining
trick, cunning, and a range of unfair ways by which people are cheated. The only
judgment based upon the winner’s fraud, courts often begin by asking what kind of
fraud the loser alleges. A common distinction courts draw is between extrinsic and
intrinsic fraud. The Florida Supreme Court defines extrinsic fraud as:
A judgment can be made void due to fraud when one of the parties had
concealed facts that affect the other party's rights. The district court ignored the
Appellants’ claims of fraud (and didn’t even address it) committed by the
Appellees in prior litigation and ignored a key component in law by the U.S.
Supreme Court, the highest court in the nation, which states that fraud would
vitiate (or in other words destroy) the judgment or dismissal. Fraud was indeed
"Res judicata bars a subsequent action if: (1) the prior decision was
3
the merits; (3) the parties were identical in both suits; and (4) the prior and
present causes of action are the same." Israel Discount Bank Ltd. v. Entin, 951
F.2d 311, 314 (11th Cir.1992). These factors have not been fully met for the
basis of the law and the facts2. How can any prior claim be resolved “on the
merits” when fraud tainted prior judgments and the court relied on falsities and
addition, Urban and Carlisle & Gallagher were not defendants in any prior case but
they should have been. Therefore, the parties are not identical in this current action.
“In all these cases3 and many others which have been examined, relief has been
granted on the ground that, by some fraud practiced directly upon the party seeking
relief against the judgment or decree, that party has been prevented from
3 Wells, Res Adjudicata, sec. 499; Pearce v. Olney, 20 Conn. 544; Wierich v. De Zoya, 7 Ill. 385; Kent v.
Ricards, 3 Md.Ch. 392; Smith v. Lowry, 1 Johns. (N.Y.) Ch. 320; De Louis v. Meek, 2 Ia. 55.
“No court in this land will allow a person to keep an advantage which he has
vitiates all transactions5, and if taken for a fraudulent purpose to carry out a
equality will compel fair dealing, disregarding all forms and subterfuges, and
looking only to the substance of things.” Jackson Law Office, P.C. v. Chappell, 327
A party commits “Fraud Upon the Court” where clear and convincing evidence
demonstrates that:
5 37 Am Jur 2d, Section 8, states, “Fraud vitiates every transaction and all contracts.
Indeed, the principle is often stated, in broad and sweeping language, that fraud
destroys the validity of everything into which it enters, and that it vitiates the most
solemn contracts, documents, and even judgments.”
5
matter by improperly influencing the trier or unfairly hampering the
While dismissal for Fraud Upon the Court most commonly results from
fabricated evidence, 11th Circuit Courts have also found Fraud Upon the Court
where a party wrongfully conceals the identity of the real party in interest in the
case. In Zocaras v.Castro, the 11th Circuit upheld a dismissal for Fraud Upon the
Court where the Plaintiff had filed suit under a false name and “proceed[ed] with
that deception right up to trial.” Zocaras, 465 F.3d at 485. In Martin v. Automobili
Lamborghini Exclusive, Inc., the 11th Circuit upheld a dismissal for Fraud Upon
the Court where the litigants had engaged in substantial misconduct which
included:
1) misleading the court about the real party in interest in the case;
6
2) engaging in extensive discovery abuse to obstruct revelation of the
was concealing their true identity even during discovery? What challenges would
the Appellants have faced when they asked these so-called Bank of America
employees who they worked for, their tasks and their employment address to only
find out later that the employees were told to lie by the defendants? Would they
have revealed their true employer, title, job description, place of employment, etc.
in trial when the Plaintiffs were not prepared? This is a serious matter and if the
actions, then we can assume that the rules or the law are biased in favor of high-
the CEO and President and held specific titles such as “Customer Advocate” and
affirmed employment at specific Bank of America locations according to mailings
It is safe to say that according to this Circuit’s case law specified above,
BANA6 concealed the identity of real parties right up until judgment was rendered
in their favor and beyond. The Appellees concealed from the court the true
identities of these employees and concealed parties of interest since the inception
The Plaintiffs attacked the procurement of the fraudulent judgment 7 and dismissal
Appendix Vol. 4, Second Amended Complaint, Doc. 60) which is on the record.
The Plaintiffs also demonstrated on the record that they offer clear and
convincing proof that the evidence and facts8 underlying the previous judgment
6 Even though Bank of America (BAC) was not the Plaintiff, same rule applies to both Plaintiffs
and Defendants in regards to Fraud Upon The Court.
8 See Appellants’ Appendix, Vol. 1, Judicial Notice, Doc. 40; Vol. 3, Judicial Notice, Doc. 55; and Judicial Notice,
Doc. 57.
8
Clearly, res judicata’s factors have not been met by the Appellees and the
When seeking summary judgment, the movant must state that he knows of
no other compelling reason why there should be a trial and that “no facts remain”.
This statement may be made in the application notice or supporting evidence but,
evidence that impeded the Appellants to properly litigate any prior action.
accorded between the persons who are parties to the action or who might be
9
“A person who is subject to service of process and whose joinder will not
deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) in that person's absence, the court cannot accord complete relief
among existing parties; or
(B) that person claims an interest relating to the subject of the action and
is so situated that disposing of the action in the person's absence may:
Urban Settlement Services (Urban Lending Solutions) and Appellee Carlisle &
Bank of America (“BANA”) contracted these entities who in turn trained these
the state of Florida as an example: “[T]he doctrine of res judicata does not
mortgagee sought to accelerate payments on the note in the first suit.” Singleton v.
Greymar Assocs., 882 So.2d 1004, 1008 (Fla.2004). This is because “[a] new
default, based on a different act or date of default not alleged in the dismissed
action, creates a new cause of action.” Star Funding Solutions, LLC v. Krondes,
101 So.3d 403, 403 (Fla. 4th DCA 2012) (citing Singleton, 882 So.2d at 1005).
Accordingly, the holding applies even where the prior action was adjudicated
on the merits. See Singleton, 882 So.2d at 1007 (citing Capital Bank v. Needle,
596 So.2d 1134, 1138 (Fla. 4th DCA 1992)); cf. U.S. Bank Nat'l Ass'n v. Bartram,
140 So.3d 1007, 1014 (Fla. 5th DCA 2014) (holding that a subsequent default
creates a new cause of action for statute of limitations purposes even where a prior
case was dismissed on its merits). Appellee Bank of America, N.A. has often
benefited by this res judicata “double standard” in repetitive cases against the
11
same parties, seeking the same relief, same subject, same actions and the same
It is justifiable for the courts to give a pass to criminal banks on res judicata
and allow multiple foreclosure actions on the same property against the same
parties with the same claims and the same injuries by using “different dates” of
acceleration as an excuse for new causes of action but it is not okay for the
Appellants in this case to bring up new dates, fraud claims, proof of concealment
and fraud upon the court. If the same privilege were to apply to the Appellants in
this action, new causes of action would also be in effect including but not limited
loan modification package from BANA using their puppet JMA, fraudulent debt
collection efforts10 and foreclosure notices in 201311 which would then also make
10 During prior litigation and after, Defendant Bank of America (and possibly Urban and CGCG, who
really knows who is who anymore) continued to send fraudulent “Office of the CEO and President”
mailings to the Plaintiffs and for other investigations conducted in 2013 and 2014 by the OCC and
CFPB for which the Plaintiffs and all those implicated relied on these mailings not knowing the true
nature of such to their detriment. The Plaintiffs also received “notices” with misrepresentations in 2013
and 2014. These occurrences happened AFTER any prior action.
11 Appellants Appendix, Vol. 1, Original State Court Complaint, Doc. 2, Exhibit I and Vol. 2, Amended Complaint,
Doc. 47, Exhibits E & F.
12
the same rule applicable in this current action to avoid res judicata. Wouldn’t
application of res judicata here? Wouldn’t these new communications that the
Appellants filed on the record attached to their complaints and as judicial notices
also create new causes of action not barred by res judicata? Other than the fact
that fraud vitiates judgments, wouldn’t these other factors also be applicable to
the case at hand? Wouldn’t repetitive monthly false and inaccurate reports to
violations?
The Appellees not only concealed material facts and evidence in prior litigation
but also committed subsequent violations against the Appellants with no regard of
the severe injuries and damage they had already caused and continued to cause. If
fraudulent banks and their minions have been given loopholes and opportunities to
avoid res judicata, then why are the victims in this case not given the same
courtesy? Did the big bad banks who destroyed the economy with fraud and greed
“purchase” this privilege? If this is the law to assist banks and corporations such as
the Appellees to avoid the application of res judicata then it should also benefit the
Appellants. Aren’t repetitive filings for “foreclosures” also within the same nucleus
of operative facts? Again, if the fraudulent banks are afforded this luxury to avoid
res judicata, why would it not apply to the instant action which also included
13
own fraud as the Defendants/Appellees have in this case and in prior cases.
Shall the resolution of the law be that the judgment must stand because it is a thing
adjudicated or must the very decision be declared void, because it is tainted with
fraud? If the first conclusion is reached, a man may take advantage of his own
fraud. If the second, the principle of res judicata must admit of exceptions. So far,
the district court has allowed the Appellees to jointly take advantage of their fraud.
Rewarding fraud is against all that this country’s judicial system stands for.
scheme in which its victim’s claims have been substantiated by evidence with the
intention to deprive another of property (and due process12) which also resulted in a
12 The Fifth and Fourteenth Amendments to the United States Constitution contain a due process
clause. Due process deals with the administration of justice and thus the due process clause acts as a
safeguard from arbitrary denial of life, liberty, or property by the Government outside the sanction of law.
14
long-term financial loss to its victims and long-term physical harm, is a crime all in
itself.
compensation for their services. They conduct these services in their own facilities,
pay their own employees’ wages and conduct supervision and training of their own
employees.
company can be responsible for additional taxes, wages, overtime pay, etc. under
federal laws and regulations implemented by those agencies. Are Urban and
CGCG responsible for their own employees’ taxes, wages, overtime pay, insurance
recklessly injuring the Appellants and others and not be liable for their reckless
behavior?
Since Urban’s and CGCG’s actual employees were also directly implicated
15
in causing harm to the Plaintiffs/Appellants, they cannot fall under the privity
umbrella and try to piggy-back their way out of their own responsibility for the
harm caused. Urban and CGCG have openly admitted to being “contracted” by
Appellee BANA and by others to perform services and are independent employers
themselves who hire and supervise their own employees. Urban and CGCG are
fully capable of making their own decisions for the benefit of their company and
BANA to train their employees to commit illegal activities and injure others as a
result, they could have refused to enter said contract or to do so. BANA did not
hire these Urban or CGCG employees or provide them a paycheck. BANA is not
their employer or master. Urban and CGCG is the employer and master of their
its employees and Carlisle & Gallagher is responsible/liable for its employees.
Even if Urban and Carlisle & Gallagher want to falsely call themselves an
separate entities.
16
However, Bank of America, Urban nor Carlisle & Gallagher have ever been
penalized for the fraudulent acts that their employees perpetrated against the
Appellants with the intent to defraud and injure them. All of these “individual”
employers (BANA, Urban, CGCG) were responsible for the actions of their
employees during the hours they were employed and for instructing them to do so.
Urban and CGCG never showed-face for the acts committed by their own
instructions of their own employers and for the monetary benefit of their own
employers. The type of work that these employees were hired to do was indeed
fraudulent with the purpose of deceiving homeowners and the government and
many employees were named individually by the Appellants and exhibits were
CGCG) were in fact responsible for their hiring, wages, training and supervision.
These employees consistently and fraudulently held titles and positions that were
actually worked for and even went as far as misrepresenting the department
Appellee BANA concealed in prior actions and during discovery that these
employees were not in fact their own. These employees were to represent their own
employers Urban and Carlisle & Gallagher in prior actions, not Bank of America.
At all times prior, the Appellants unknowingly referred to all of these employees as
employees of Bank of America when many were not. The Appellants had no
knowledge of their true identities or the scheme and fraudulent actions perpetrated
Urban and CGCG should have been joined in previous suits. Unbeknownst
to the Appellants, Urban and CGCG have both claimed an interest relating to the
liable when their own individual employees were specifically named in the prior
action would have successfully been brought against theses concealed companies,
this might allow the plaintiff a double recovery (or the potential for
one). Generally, courts hold that an issue that could be brought up but
“voluntarily” isn’t, is waived, and thus has been given a full and fair opportunity
to have been heard on its merits. The Appellants were not given this option
because they did not have the “full and fair opportunity” to litigate and/or
voluntarily bring up or omit these issues because they were concealed along with
14 Even though Urban and CGCG have both now claimed interest in previous actions between the Appellants and
Bank of America (BAC), no “Certificate of Interested Persons and Corporate Disclosure Statements” (see
Appellants’ Appendix, Vol. 1, Doc. 40) filed with the District Court by Appellee Bank of America ever disclosed
this interest and instead concealed these interested parties even though they should have been joined to prior claims.
18
i. The Appellees Violated Discovery Rules, Intimidated The
Appellants and Yet Were Rewarded For Their Misconduct.
is directly contrary to the very purpose of discovery: to ensure that lawsuits are
decided by what the facts reveal, not by what facts are concealed.
19
accordance with Rule 26(e). The automatic exclusion sanction of material not
disclosed pursuant to Rule 26(a) was added by the 1993 amendments to the rule. In
2000, a subsequent amendment made the same remedy available for material that
should have been disclosed in discovery responses. Rule 26(a) lists “mandatory”
disclosures that must be made even in the absence of a request from the opposing
documents that may be used to support the disclosing parties’ claims or defenses,
Fed. R. Civ. P. 26(e); Colon-Millin v. Sears Roebuck De Puerto Rico, Inc., 455 F.3d
30, 37 (1st Cir. 2006) (“[A] party must supplement its answers to interrogatories if
the party learns that the response is in some material respect incomplete or
incorrect and the other party is unaware of the new or corrective information.”).
20
Rule 37(c) enforces the disclosure requirements imparted by Rule 26. Rule
required15. Did BANA feel that they needed to comply with these rules. No, they
did not. BANA’s attorney clearly stated in an email dated September 10, 2014 after
three (3) weeks of the Appellants seeking the disclosures that they do not ‘believe’
material that the disclosing party would expect to use as evidence, whether at trial,
1993 amendment; see also Star Direct Telecom, Inc. v. Global Crossing
Bandwidth, Inc., 272 F.R.D. 350, 359 (W.D.N.Y. 2011) (“If the Federal Rules of
Civil Procedure are to be effective and meaningful, parties should not be permitted
15 See Appellant’s Appendix, Volume 4 “Plaintiffs’ Motion to Compel”, Doc. 69 and Appellants’
Appendix, Volume 5, “ Plaintiffs’ Objection to Order Granting Motion to Stay”, Doc. 83.
21
opposing party does not discover their deliberate omission until the discovery
The Supreme Court has noted that Rule 37 sanctions must be applied
diligently both to penalize those whose conduct may be deemed to warrant such a
sanction and to deter those who might be tempted to engage in such conduct in the
absence of a deterrent. Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980).
Did the district court compel discovery from Appellee Bank of America for
violating discovery rules and for using their disclosures to intimidate the
Because discovery is a search for the truth, the rules of discovery are
providing procedural mechanisms designed to make a trial a fair contest with the
basic issues and facts disclosed to the fullest practicable extent. "Litigation is not a
game. It is the time-honored method of seeking the truth, finding the truth, and
doing justice." Haeger v. Goodyear Tire and Rubber Co., No. CV-05-02046-RHX-
22
Together, the rules of civil procedure in both state and federal court, along
with the Rules of Professional Conduct17 serve to secure fairness in the trial
Courts and lawyers have the authority and tools to prevent discovery abuse. Courts
have the discretion to issue sanctions including orders of default, establishing facts
for the purpose of the pending case, costs and attorney's fees. The
Plaintiffs/Appellants made it known to the district court of these abuses and instead
their Motion to Compel Discovery18 was denied and their evidence of said abuse
Motion to Stay which was fraudulently used to avoid answering the Appellants’
18 See Appellants’ Appendix Volume 4, “Plaintiffs’ Motion To Compel”, Doc. 69 and Appellants’ Appendix,
Volume 5, “Plaintiffs’ Objection To Motion To Stay Order”, Doc. 83.
23
No “Motion to Exclude Evidence” was ever filed by Defendant Bank of
America in prior litigation and no such motion was filed in this current action by
any Appellee.
concealment:
- The party who concealed the information did so to induce a false belief.
The Plaintiffs demonstrated due diligence even after the judgment in favor of Bank
24
“reasonably” have been expected and shortly after everyone else discovered it as
well. The district court erroneously believes that the Appellants are more
concealed fraud should have been discovered previously. Not even avid attorneys
code” of this fraud until mid 2013 and late 2013 when employee whistleblowers
surfaced and soon after the fraudulent Bank of America Office of the President
ridiculous that the Appellants, pro se plaintiffs with limited financial resources and
investigative means, could have discovered this fraud even with due diligence long
Appellants at all times, even during litigation. The Appellees deceived the
Appellants during discovery and had a duty to disclose pertinent facts and other
"Silence can only be equated with fraud where there is a legal or moral duty
25
misleading. . . We cannot condone this shocking behavior……" U.S. v. Tweel, 550
F.2d 297, 299. See also U.S. v. Prudden, 424 F.2d 1021, 1032; Carmine v. Bowen,
64 A. 932.
In Southern Development Co. v. Silva, 125 U.S. 247, 8 S.Ct. 881, 31 L.Ed.
(1887), the U.S. Supreme Court defined the legal elements of a civil fraud as
follows:
• The defendant has made a representation in regard to a material fact.
• The representation was false
• The defendant knew the representation was false
• The representation was intended to provoke an action by the plaintiff
• The plaintiff suffered damage as a result
• In acting, the plaintiff reasonably assumed the representation was true.
In all fraud cases, the prosecution or plaintiff must prove that a false
intentionally makes a false statement if it is his desire to cause the social harm, or
26
if he acts with knowledge that the social harm will almost certainly result from his
actions. In some instances, particularly those involving civil actions for fraud and
securities cases, the intent requirement is met if the plaintiff is able to show that
the false statements were made recklessly—that is, with complete disregard for
Defendants Urban and Carlisle & Gallagher were very willing to comply in this
II. CONCLUSION
For all the reasons set forth herein, this Court should reverse or void the
Dismiss. All other matters and motions wrongfully decided by the district court
should also be reversed. The Appellants strongly believe that this current action
would be of interest to the U.S. Supreme Court given that the district court
disregarded the Supreme Court’s stance on fraud and constitutional rights and how
thousands of others were affected by the Appellees’ scheme. The district court’s
27
Respectfully submitted,
28
6, 971 words in the foregoing brief, inclusive of the portions excluded by Rule 32(a)
(7)(B)(iii).
29
I HEREBY CERTIFY that a true and correct copy of the foregoing brief
with priority mail postage has been furnished by U.S. Mail on this date on the
following counsel:
Joshua R. Levine
Leibler, Gonzalez & Portuondo
44 West Flagler Street
Courthouse Tower, 25th Floor
Miami, Florida 33130
Telephone: (305) 379-0400
Facsimile: (305) 379-9626
Richard L. Farley
Katten Muchin Rosenman, LLP
550 S. Tyron Street, Suite 2900
Charlotte, NC 28202-4213
Telephone: (704) 344-3062
Facsimile: (704) 344-3040
Kevin Cox
Holland & Knight
314 South Calhoun Street
Suite 600
Tallahassee, Florida 32301
Telephone: (850) 425-5626
Facsimile: (850) 224-8832
30