In re Nora

778 F.3d 662, 90 Fed. R. Serv. 3d 1456, 2015 U.S. App. LEXIS 2350, 2015 WL 554396
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 11, 2015
DocketNo. 13-2676
StatusPublished
Cited by12 cases

This text of 778 F.3d 662 (In re Nora) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Nora, 778 F.3d 662, 90 Fed. R. Serv. 3d 1456, 2015 U.S. App. LEXIS 2350, 2015 WL 554396 (7th Cir. 2015).

Opinion

TINDER, Circuit Judge.

On August 13, 2014, we ordered attorney Wendy Nora to show cause why she should not be sanctioned for pursuing a frivolous appeal, see Fed. R.App. P. 38, and why she should not be disciplined for conduct unbecoming a member of the bar, see id. 46(c). PNC Bank, N.A. v. Spencer, 763 F.3d 650, 655 (7th Cir.2014). For the reasons that follow, we now impose a sanction of $2,500 but suspend the sanction until such time, if ever, that Nora submits additional frivolous or needlessly antagonistic filings.

I. Background

As discussed in our earlier opinion, this case arose from a Wisconsin foreclosure action in which Nora, retained by Sheila Spencer, raised numerous objections focused on alleging that PNC Bank was fraudulently attempting to foreclose. Nearly four years after the suit had been filed, Nora then removed the case to federal court on the basis that she had just discovered through internet research that Freddie Mac was the “real party in interest.” The district court remanded the case to state court and awarded fees and costs to PNC, concluding that Nora failed to ■ explain how federal. jurisdiction could exist when Freddie Mac was not a party to the case. Nora moved for reconsideration, and the court denied the motion as “frivolous,” noting that Nora “ignored the voluminous law stating that district courts lack jurisdiction to reconsider remand orders, made no good faith argument for changing existing law and offered no meritorious arguments for reconsidering the decision to award fees.” The court added that Nora had attempted “repeated procedural feints to delay the foreclosure that was properly before the state court.”

Nora then appealed on behalf of both Spencer and herself, and we concluded that the appeal was sanctionably frivolous. We explained that Nora had “never presented any colorable basis for federal jurisdiction over this years-old state-court foreclosure case,” leading us to “suspect that the removal was part of a strategy designed to gum up the progress of the case.” Spencer, 763 F.3d at 655. We also observed that we lacked jurisdiction over Nora’s appeal on her own behalf because liability for the award of fees and costs rested solely with Spencer; although Nora [664]*664asserted that Judge Crabb had “engaged in a campaign of libel against [her],” this alleged criticism did not permit Nora to appeal. Id. at 653-54. Nora suggested at oral argument that she would withdraw her name as co-appellant but never did so. Id. at 654.

Further, we noted that Nora’s conduct appeared to be part of a pattern of troubling litigation tactics. We observed that Nora had been suspended indefinitely from practicing law in Minnesota (though later reinstated) for conduct similar to her actions in this case: making frivolous arguments, with no prospect of success, in an effort to delay foreclosure of her clients’ farm land. See In re Nora, 450 N.W.2d 328, 330 (Minn.1990). Additionally, we observed that Nora’s responses to her opponents and the courts during this litigation were “unnecessarily accusatory and antagonistic,” noting that Nora had accused “the state court judge and court reporter of fraudulently manipulating transcripts, the district judge of pursuing ‘a campaign of libel against [her],’ and opposing counsel of engaging in ‘actionable civil fraud and racketeering [that] may constitute state and federal criminal misconduct.’ ” Spencer, 763 F.3d at 655 (alterations in original). We gave Nora 30 days to show cause why she should not be sanctioned.

Two days after we issued our opinion, Nora filed a 14-page “initial response” alleging that the opinion did not provide her with reasonable notice of the charges against her. She requested an evidentiary hearing and appointment of “an attorney to represent the proponent of the Order to Show Cause and a referee or special master to preside at the hearing.” We denied Nora’s request for appointment of a special master and a full evidentiary hearing but agreed to hold a hearing on the show-cause order as allowed under Rule 46(c). We warned Nora that we would not accept additional filings beyond “one proper response to the show-cause order” and directed her to address the following four issues in her response: (1) whether the removal of this case, motion to reconsider, and appeal of the fee order were frivolous; (2) whether her appeal on her own behalf was frivolous; (3) whether the removal and appeal were litigated for the improper purposes of delay or increasing litigation costs; and (4) whether her attacks on her opponents and the district judge were appropriate advocacy.

Nora did not limit herself to one proper response. On September 2, 2014, she submitted a petition for rehearing en banc on behalf of herself and Spencer, rehashing her frivolous appellate arguments. On September 19, she filed both a “partial response to order to show cause (all rights reserved)” and a separate motion to stay further proceedings pending a petition for writ of certiorari. On October 3, after the court denied her request for a stay of proceedings, she filed a citation of additional authority under Circuit Rule 28(e) to bring to our attention a Sixth Circuit decision that purportedly supports her arguments on the merits. Finally, on October 17, eleven days before the show cause hearing, Nora moved to postpone the hearing because she had become “progressively mildly cognitively impaired as the result of a whiplash injury” from a car accident on September 13. We denied the request to postpone the hearing but granted Nora, or an attorney on her behalf, leave to argue by speakerphone. On October 28, Nora appeared in person for a 20-minute hearing.

II. Discussion

In responding to our earlier opinion, Nora has dug in her heels and continues to press the same arguments that were thoroughly rejected in the district court [665]*665and our earlier opinion. Nora spends much of her response quoting portions of our earlier opinion and arguing that she could prove them wrong if given an eviden-tiary hearing. She made the same argument at her hearing. But Nora fails to specify what evidence she would present to undermine our opinion; she merely declares — without citation to the record— that a dozen different statements in our opinion were “false.” These contentions do nothing to justify the removal, motion to reconsider, and appeal in this case. She also argues that she properly appealed on her own behalf because “the effect of the district court decision was to require her to indemnify Ms. Spencer.” But as we explained in our earlier opinion, the award was against Spencer, not Nora, and Nora has not shown that she agreed to indemnify Spencer.

Nora also argues that, by depriving her of an evidentiary hearing, we violated her constitutional right to due process, citing In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968). That argument is frivolous. Ruffalo holds that an attorney must receive fair notice of adverse charges and an opportunity to respond before being disciplined. Id. at 550, 88 S.Ct. 1222; see Lightspeed Media Corp. v. Smith,

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Bluebook (online)
778 F.3d 662, 90 Fed. R. Serv. 3d 1456, 2015 U.S. App. LEXIS 2350, 2015 WL 554396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nora-ca7-2015.