Professional Documents
Culture Documents
Laurence Schneider,: United States District Southern District of Florida 17-80728-CV-MIDDLEBROOKS
Laurence Schneider,: United States District Southern District of Florida 17-80728-CV-MIDDLEBROOKS
LAURENCE SCHNEIDER,
Plaintiff,
v.
FIRST AMERICAN BANK, as successor
by merger to Bank of Coral Gables, LLC,
_______________
Defendant.
/
"A-16"
Cas e 9:20-cv-81728-DMM Document 17-1
6 Entered on FLSD Boc keH :0/2 1/20 20 Pag
e 2 of 10
Case 9:17-cv-80728-DMM Document 49 Ente
red on FLSD Docket 02/01/2018 Page 2 of 10
a. Federal Complaint
2
Case 9:20-cv-81728- DMM Document 17-16 Ente
red on FLSD Docket 10/2112020 Pa:ge 3 e,f 10
Case 9:17-cv-80728-DMM Document 49 Entered on
FLSD Docket 02/01/2018 Page 3 of 10
3
Case 9:20-cv-81728-DMM Document 17-1 6
Entered on FLSO Docket 10/21/2020 Pttge 4 of
10
Case 9:17-cv-80728-DMM Document 49 Entered
on FLSD Docket 02/01/2018 Page 4 of 10
4
Case 9:20-cv-81728-DMM Docu ment 17-16 Ente
red on FLSD Docket 10/21/2020 Page 5 of 10
Case 9:17-cv-80728-DMM Document 49 Ente
red on FLSD Docket 02/01/2018 Page 5 of 10
5
Case 9:20-cv-81728-DMM Document 17-16
Entered on FLSD Docket 10/21/2020 Page G of
10
Case 9:17-cv-80728-DMM Document 49 Entered
on FLSD Docket 02/01/2018 Page 6 of 10
1
Some district courts have found this factor weighs again
st abstention unless the federal court
asserts jurisdiction over the property. See e.g., Burd
ick v. Bank of Am., N.A., 99 F. Supp. 3d
1372, 1377 (S.D. Fla. 2015). However, the language
from the Eleventh Circuit in Ambr osia and
Jackson-Platts indicates that either court 's assertion
of jurisdiction over the property weighs in
favor of abstention.
6
Case 9:20-cv-81728-DMM Document 17-16 Entered on FLSD
Docket 10/21/2020 Page 7 of 10
Case 9:17-cv-80728-DMM Document 49 Entered on FLSD Docke
t 02/01/2018 Page 7 of 10
Here, the State action was filed on August 17, 2016, while the Federa
l Action was
initiated on June 13, 2017. However, the fourth factor "should not be
measured exclusively by
which complaint was filed first, but rather in tenns of how much progre
ss has been made in the
two actions." Ambrosia, 368 F.3d at 1333 (quoting Moses H. Cone,
460 U.S. at 21). First
American argues that the State foreclosure proceeding was filed
10 months before this
proceeding and notes that the State Court has already entered Final
Judgment, whereas the
Parties in this action have not yet begun discovery. (FOE 34 at
8). Schneider apparently
concedes that this factor weighs in favor of abstention as he does not
address it in his Response.
Given the entry of Final Judgment in the State case and the fact that
the Parties have not yet
begun discovery in this proceeding, this factor weighs in favor of absten
tion.
v. State versus federal law.
First American argues that both proceedings are "at their cores,
disputes over [the
Property] and the validity, and enforceability of the loan instruments secured
by the Property ...
[which are] signall y[] state law concem[s]." (FOE 34 at 8) (citation omitte
d). Schneider argues
that in this case, "the principal law at issue to be applied to the facts
is federal law, unlike the
purely state law based claims raised in the state court foreclosure procee
dings." (FDE 38 at 7).
The federal Complaint alleges causes of action under both federal and
state Jaw. However, it
does not present any "complex questions of state law that a state court
might be best suited to
resolve" and therefore, I find that this factor is neutral. Noonan South,
Inc. v. Volusia County,
84 l F.2d 380, 382 (11th Cir. I 988).
First American argues that Florida State Court is best suited to protect
the Parties' rights
as this is fundamentally a dispute relating to real property in Florida,
citing Preston v. Fishman,
7
Case 9:20-cv-81728-DMM Document 17-16 Entered on FLSD Docke
t 10/21/2020 Page 8 of 10
Case 9:17-cv-80728-DMM Document 49 Entered on FLSD Docket 02/01/2
018 Page 8 of 10
2011 WL 129843 (M.D. Fla. 2011) ("[t]he state forum enjoys a surpass
ing advantage in
experience in, and knowledge of, foreclosure and pertinent state property law.").
Schneider
responds that "the state court proceedings will not adequately protect [his] rights
under federal
law" without providing any reasons why he believes that to be the case.
(FOE 38 at 7).
Schneider' s contention is especially unpersuasive in light of the fact that
Schneider's state
Counter-claim in the state proceedings seeks relief under federal law.2 (FOE
35-1). Further,
"Florida state courts routinely entertain federal statutory TILA, RESPA and FDCPA
claims, and
common law claims, as counterclaims or affirmative defenses in state foreclos
ure actions."
Beepot v. JP. Morgan Chase Nat. Corp. Servs., Inc., No. 3: 10-CV-423-J-34,
2011 WL 4529604,
at *8 (M.D. Fla. Sept. 30, 2011) ("citing Harper v. Chase Manhattan Bank, 138
Fed. Appx., 130,
133 n.2). Accordingly, the state court can protect Schneider's rights. The "fact
that both forums
are adequate to protect the parties' rights merely renders this factor neutral." Jackson
-Platls, 727
F.3d at 1143 (internal quotations omitted).
Louisiana State Bd. of Dentistry, 835 F.2d 100, 105 (5th Cir. 1988)). The sequenc
e of events
here suggests that Schneider's choice to file this action was at least in part reactive
to the state
court proceedings. It appears that on June 12, 2017, the Parties attended a hearing
before Judge
Ferrara in the State Foreclosure proceeding. (SOE 105, I06). The very next
day, on June 13,
2017, Schneider filed this action. (FOE 1). Two weeks later, on June 27, 2017,
the State Court
entered a Final Judgment of Foreclosure against Schneider and.Grunted First Americ
an's Motion
2
As noted above, Count I of Schneider's state Counter-claim alleges that Defend
ant violated the
Fair Credit Reporting Act (15 U.S.C. § 1681).
8
Case 9:20-cv-81728- DMM Document 17-16 Entered on FLSD Docket 10/21/2
020 Page 9 of 10
Case 9:17-cv-80728-DMM Document 49 Entered on FLSD Docket 02/01/2018
Page 9 of 10
for Summary Judgment. (SOE 125, 126). To the extent a timeline can shed light on whether
a
party's filing a federal complaint was "vexatious or reactive" to a pending state court proceedi
ng,
J find that the timeline here suggests that Schneider's choice to file the federal complaint may
have been, in part, reactive to the state court proceedings. Schneider fails to address this
policy
consideration in his response and provides no explanation as to why he filed the federal
action
when he did. Accordingly, the reactive nature of this suit weighs in favor of abstention.
Defendant argues that because RESPA provides concurrent jurisdiction in stale and
federal courts, the statute evinces a policy favoring abstention. (FDE 34 at 8). The fact
that a
statute provides concurrent jurisdiction in both state and federal courts is insufficient by itself
to
demonstrate a policy favoring abstention. See Willson v. Bank ofAmerica, NA., 684 Fed.
Appx.
897 (11th Cir. 2017) ("Although it is true that the statute at issue in Colorado River granted
concurrent state and federal jurisdiction, ... it was 'the clear federal policy for the avoidanc
e of
piecemeal adjudication of water rights in a river system; that evinced a policy favoring
abstention."'). Finding no other evidence indicating a policy favoring abstention, l find that
this
factor is neutral.
Having reviewed the Colorado River factors- noting that the jurisdiction over property,
the order in which jurisdiction was obtained, and the reactive nature of this action each weigh
in
favor of abstenti on-I find abstention is warranted under these circumstances. This conclusi
on
is in line with other cases similarly finding that Colorado River abstention is appropriate
where
there is an ongoing foreclosure action. See e.g., Willson v. Bank of America, N.A. , 684
Fed.
Appx. 897 (11th Cir. 2017) (affirming district court's choice to abstain from exercisin
g
jurisdiction over a case involving RESPA claims where a concurrent state foreclosure action
was
9
Case 9:20-cv-81728-DMM Document 17-1
6 Entered on FLSD Docket 10/21/2020 Pag
e 10 of
Case 9:17-cv-80728-DMM Document 49 Ente10
red on FLSD Docket 02/01/2018 Page 10 of
10
D ALD M. MIDDLEBROOKS
Copies to: Counsel of Record
UNITED STATES DISTRICT JUDGE