Case 2:09-cv KMM Document 53 Entered on FLSD Docket 05/03/2010 Page 1 of 9

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1 Case 2:09-cv KMM Document 53 Entered on FLSD Docket 05/03/2010 Page 1 of 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION MARCELLUS M. MASON, JR. Plaintiff, vs. CHASE HOME FINANCE, LLC, SUCCESSOR BY MERGER TO CHASE MANHATTAN MORTGAGE CORP. CASE NO.: CIV- MOORE/SIMONTON Defendants. DEFENDANT CHASE HOME FINANCE, LLC's MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR REHEARING Defendant, CHASE HOME FINANCE, LLC ("Chase" or "Defendant", by and through its undersigned counsel and pursuant to S.D. Fla. L.R. 7.1(C, hereby files its Memorandum in Opposition to Plaintiffs, MARCELLUS M. MASON ("Mason" or "Plaintiff' Motion for Rehearing, and shows the Court as follows: INTRODUCTION Plaintiffs Motion for Rehearing alleges that the Order dismissing his Amended Complaint should be overturned for three reasons: 1 the Court dismissed Plaintiffs Amended Complaint sua sponte; 2 Chase is liable under the Fair Credit Reporting Act, 15 U.S.C et seq. ("FCRA"; and 3 the Court has original jurisdiction over the remaining state law claims. Plaintiff's arguments are both factually and legally baseless. As set forth herein, Plaintiff s Motion merely rehashes the same arguments that were previously rejected by the Court, and fails to assert any newly discovered facts or legal issues.

2 Case 2:09-cv KMM Document 53 Entered on FLSD Docket 05/03/2010 Page 2 of 9 Moreover, the Amended Complaint was not dismissed sua sponte; Plaintiff's FCRA claims are barred by the Rooker-Feldman doctrine; and the Amended Complaint does not meet the monetary requirement for diversity jurisdiction. As such, the Order Dismissing Plaintiff's Amended Complaint (the "Order" is valid in all respects. Ultimately, Plaintiff's Motion appears to be the most recent addition to his campaign to try and convince this Court to sit as an appellate court in review of the November 2005 state court judgment of foreclosure entered against Plaintiff. Plaintiff's attempts to overturn this over four year old judgment have been rejected by both the state court (in a denial of Mason's Omnibus Motion and Motion for Relief in January 2010, and by this Court in the Order. Plaintiff fails to set forth any new issues, or point to any manifest errors of law, and the Motion should accordingly be denied. A. Motion for Rehearing/Reconsideration MEMORANDUM OF LAW Plaintiff requests herein a rehearing of Defendant's Motion to Dismiss. As neither the Federal or Local Rules provide for a motion for rehearing, this Motion is best analyzed under the standard of review for a motion for reconsideration. In this regard, it is well-settled that "[t]he purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Flexiteek Americas, Inc. v. Plasteak, Inc., Case No CIV-COHN/SELTZER, 2009 U.S. Dist. LEXIS *1, 14 (S.D. Fla. July 3, 2009 (citations omitted. "A motion for reconsideration should not be used as a vehicle to present authorities available at the time of the first decision or to reiterate arguments previously made." Id. Contrary to this standard, Plaintiff's Motion does not present any manifest errors of law or fact or present any newly discovered evidence. Plaintiff posits only one new legal argument, Page 2 of 8

3 Case 2:09-cv KMM Document 53 Entered on FLSD Docket 05/03/2010 Page 3 of 9 that his Amended Complaint was dismissed sua sponte; however, as discussed further below, this argument is factually incorrect. Plaintiff's other legal and factual arguments are mere repetitions of arguments already rejected by this Court. Plaintiff introduces no new evidence, and cites to no newly decided legal authority. As such, Plaintiff has not established that he is entitled to reconsideration of the Order, and his Motion is due to be denied. B. The Court Did Not Dismiss Plaintiff's FCRA Claims Sua Sponte Plaintiff alleges that the Court dismissed his FCRA claim sua sponte. Specifically, Plaintiff alleges that Chase did not move to dismiss the FCRA claims for failure to state a cause of action under FRCP 12(b(6. However, this allegations is without merit. Defendant's Motion to Dismiss Plaintiffs Amended Complaint specifically states that Defendant is moving "pursuant to Rule 12(b(6 of the Federal Rules of Civil Procedure." See Exhibit "A." As such, Plaintiff's first argument is factually false. C. Plaintiff's FCRA Claims are Barred by the Rooker-Feldman Doctrine As the Court pointed out in its Order, the basis of Plaintiff's FCRA claims is the allegation that the underlying state court foreclosure judgment was unfair or unwarranted. See Exhibit "B." As such, Plaintiff's FCRA claims are barred by the Rooker-Feldman Doctrine. Under the Rooker-Feldman doctrine, a federal district court lacks subject matter jurisdiction over actions seeking relief that would effectively reverse a state court decision or void its ruling. S. Washington Avenue, LLC v. Wilentz, Goldman & Spitzer, P.A., 259 Fed. Appx. 495, 498 (3d. Cir. Dec. 31, This doctrine only applies to cases "brought by the state-court losers complaining of injuries caused by state-court judgments rendered before the District Court proceedings commenced and inviting District Court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Industries, Corp., 544 U.S. 280, 284 (2005. The doctrine Page 3 of 8

4 Case 2:09-cv KMM Document 53 Entered on FLSD Docket 05/03/2010 Page 4 of 9 applies when a federal claim is inextricably intertwined with the state court judgment such that federal relief could only be predicated upon a finding that the state court was wrong. In re Knapper, 407 F.3d 573, 580 (3d Cir In this matter, the state court entered a final judgment of foreclosure in November of On January 12, 2010 the state court denied Plaintiff's request for relief for the same judgment. Chase and Plaintiff were both involved in the state foreclosure matter. All of the FCRA claims are predicated upon the overturning of the underlying state court judgment of foreclosure. Plaintiff admits his desire to have this Court review the validity of the state court judgment in his Motion for Rehearing when he states that "This court appears to want to have it both ways in that it refuses to investigate or acknowledge the problems inherent in the order or that the order was obtained dishonestly and unethically while it simultaneously uses the order to justify its decision against the Plaintiff" Plaintiff blatantly requests this Court to "investigate" the state court judgment. As this Court stated in the Order, "These state court judgment in favor of Chase conclusively establish a relationship between Chase and Mason with respect to the foreclosure action at issue. The state court rendered judgment in favor of Chase, thereby declaring the legal rights of both Parties and binding the Parties accordingly." See Exhibit "B." The state court determined that the foreclosure was valid, accurate and complete. The state court later decided not to provide any relief from said judgment. As such, Chase's reporting of the foreclosure is valid. Any dispute related to this foreclosure was conclusively dealt with by the November 2005 and January 2010 state court orders. As such, Plaintiff has failed to set forth any colorable basis as to why the Order manifestly disregards any factual or legal arguments, and the Motion should accordingly be denied. Page 4 of 8

5 Case 2:09-cv KMM Document 53 Entered on FLSD Docket 05/03/2010 Page 5 of 9 C. Plaintiff Does Not Meet the Requirements for Diversity Jurisdiction In order to sufficiently allege diversity jurisdiction the amount in controversy pled in the complaint must be over seventy-five thousand dollars ($75, U.S.C "Dismissal of a case brought under the Court's diversity jurisdiction is proper where the pleadings make clear to a legal certainty that the claim is really for less than the jurisdictional amount." American Securities Insurance Co. v. Hall, 2009 WL (S.D.Fla Plaintiff's allegations as to damages in the Amended Complaint do not allege a sufficient amount in controversy. As such, the Amended Complaint does not meet the jurisdictional requirements for diversity jurisdiction. Based on the pleadings, it is clear to a legal certainty that Plaintiff's claim is for less than $75, i. Mason Does Not Plead a Sufficient Amount is in Controversy Plaintiff alleges twenty three counts in his Amended Complaint, however, all of these counts essentially plead a variation of two requests for relief. In Counts I and II, Plaintiff alleges as damages the current fair market value of the foreclosed property ($60, Count IV alleges as damages $8, plus interest, which is the amount Plaintiff alleges Chase recovered from the foreclosure sale over and above the amount Plaintiff owed on the Note and Mortgage. Counts XVIII and XIX allege as damages the difference between the current fair market value of the house and the principal balance owed on the Note and Mortgage prior to foreclosure ($47,471.84, namely $12, Counts I, II, W, XVIII and XIX all allege alternative damages. If Plaintiff were to recover the current fair market value of the house, he could not additionally recover the difference between the fair market value and the principal balance owed, or the difference between the principal balance owed and the amount recovered in the foreclosure sale. Plaintiff is not entitled to a windfall, or Page 5 of 8

6 Case 2:09-cv KMM Document 53 Entered on FLSD Docket 05/03/2010 Page 6 of 9 to recover the same money multiple times. As such, Counts I, II, W, XVIII and XIX all request alternative damages. Therefore, the greatest amount Plaintiff can recover from this group of claims is $60,221. The remainder of Plaintiff's claims all relate to the $5,261.73, which Plaintiff allegedly sent Chase and which Chase allegedly held for three years before returning. In different counts, Plaintiff alleges that he is due: a the interest accrued on the sum during the three years which Chase allegedly held it; b the extra interest which accrued on the balance Plaintiff owed during the two month when Chase was in possession of the $5,261.73, but did not apply it to the principal balance; and c the entire $5, as damages. While these claims also plead alternative damages, it is irrelevant, since even if Plaintiff could recover all of these amounts at the same time, he still would not meet the required amount for diversity jurisdiction since the total is less than $14, It is clear, on the face of the pleadings, that Plaintiff cannot meet the $75, amount in controversy threshold for diversity jurisdiction. Again, Plaintiff has not pointed to any new evidence, or legal theories and fails to set forth any misapplication of the law or the facts by this Court. Accordingly, there is simply no basis for granting a motion for reconsideration. ii. Plaintiff's Claim for Punitive Damages is Not Included in the Calculations of Amount in Controversy Plaintiff alleges that, even if his FCRA claims are stricken, the remainder of his claims should continue in federal court as he still meets the requirements for diversity jurisdiction. Specifically Plaintiff alleges that the amount in controversy requirement is met through Count XXI alone, since he alleges damages in the amount of sixty-one thousand dollars ($61, and treble damages. Page 6 of 8

7 Case 2:09-cv KMM Document 53 Entered on FLSD Docket 05/03/2010 Page 7 of 9 Plaintiff alleges that, due to his claim for treble damages in Count XXI, the seventy-five thousand dollar ($75, diversity jurisdiction threshold is met. However, when determining the amount in controversy for diversity jurisdiction, a claim for punitive damages is to be given close scrutiny, and the trial judge is accorded greater discretion than for a claim for actual damages. Mehlenbacher v. Akzo Nobel Salt, Inc., 207 F. Supp. 2d 71 (W.D. N.Y. 2002; Ongstad v. Piper Jaffray & Co., 407 F. Supp. 2d 1085 (D.N.D Exorbitant punitive damages should not be the cause for the transformation of a state action into a federal one. Weinberg v. Sprint Corp., 165 F.R.D. 431 (D.N.J The use of punitive damages to satisfy the jurisdictional amount warrants special judicial scrutiny, and the court should scrutinize such a claim to ensure that it has at least a colorable basis in law and fact. Miller v. European American Bank, 921 F. Supp (S.D. N.Y. 1996; Hunter v. District of Columbia, 384 F. Supp. 2d 257 (D.D.C Here, Plaintiffs only hope of reaching the jurisdictional amount is through his allegation of punitive damages in Counts XXI, for civil theft. However, Count XXI does not have a colorable basis in law or fact. Indeed, Chase could not have stolen Plaintiffs house as it was foreclosed upon and sold pursuant to a valid state court judgment of foreclosure. Additionally, Count XXI is barred by the Rooker-Feldman doctrine, since in order for Plaintiff to successfully state a claim for civil theft the state court judgment would have to be overturned. The state court has already rejected Plaintiff's efforts in that regard by denying the motion for rehearing that was filed in that action. Finally, the claims for civil theft is barred by the Economic Loss Rule, as it is well-settled under Florida law that, a party in privity of contract is generally prohibited from recovering in tort for economic damages. See Indemn. Ins. Co. of N. Amer. v. Amer. Aviation, 891 So. 2d 532 Page 7 of 8

8 Case 2:09-cv KMM Document 53 Entered on FLSD Docket 05/03/2010 Page 8 of 9 (Fla Accordingly, Florida courts have held that a tort action is barred where a defendant has not committed a breach of duty apart from a breach of contract. Id; see also Ginsberg, 654 So. 2d at 495 (holding that "[w]here damages sought in tort are the same as those for breach of contract a plaintiff may not circumvent the contractual relationship by bringing an action in tort"; see also Moore Business Forms, Inc. v. Iberoamerican Electronics, Inc., 698 So. 2d 611, 613 (Fla. 3d DCA 1997 (determining that a civil theft claim was barred by the economic loss doctrine where the plaintiff failed to allege a cause of action for civil theft independent to claim for breach of contract. As discussed in Chase's Motion to Dismiss Plaintiff's Amended Complaint, the civil theft claims is entirely predicated upon Plaintiff's claims that Chase breached a purported repayment agreement. See Exhibit "A." As such, Count XXI is entirely dependant up on a breach of contract claim, and is therefore barred by the economic loss rule. Since Count XXI for civil theft is both legally and factually deficient the punitive damages alleged therein cannot be considered in determining whether Plaintiff meets the jurisdictional amount. Thus, Plaintiff fails to meet the amount in controversy requirement for diversity jurisdiction. Page 8 of 8

9 Case 2:09-cv KMM Document 53 Entered on FLSD Docket 05/03/2010 Page 9 of 9 CONCLUSION For the foregoing reasons, Plaintiff's Motion for Reconsideration should be denied. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on this 3rd day of May 2010, I electronically filed a true and correct copy of the foregoing document using the CM/ECF system, and served a copy on Plaintiff via U.S. Mail, together with Notice of Electronic Filing Generated by CM/ECF. Respectfully submitted, GREENBERG TRAURIG, P.A. Counsel for Defendant 401 East Las Olas Boulevard, Suite 2000 Fort Lauderdale, FL Telephone: Facsimile Michele L. Stocker stockerm@gtlaw.com Florida Bar No Cory W. Eichhorn Eichhornc@gtlaw.com Florida Bar No By: s/michele L. Stocker Page 9 of 8