James E. Baumann v. Quarles & Brady LLP

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 11, 2018
• Docket: 17-12633
• Status: Unpublished

Opinion

Case: 17-12633 Date Filed: 05/11/2018 Page: 1 of 15

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-12633 Non-Argument Calendar ________________________

D.C. Docket No. 6:15-cv-01951-PGB-GJK

JAMES E. BAUMANN, DEBORA K. BAUMANN,

Plaintiffs-Appellants,

versus

BANK OF AMERICA, N.A.,

Defendant,

QUARLES & BRADY LLP, PROBER & RAPHAEL, a law corporation, MARINOSCI LAW GROUP, PC,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(May 11, 2018) Case: 17-12633 Date Filed: 05/11/2018 Page: 2 of 15

Before MARTIN, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:

Pro se Plaintiffs-Appellants James Baumann and Debora Baumann appeal

from the district court’s order granting in part and denying in part the motions to

dismiss filed by Defendants-Appellees Quarles & Brady LLP (Quarles) and

Marinosci Law Group, PC (Marinosci). The Baumanns also appeal the district

court’s order and judgment in connection with their motion for a default judgement

against Defendant-Appellee Prober & Raphael (Prober). 1 With respect to the

dismissals granted to Quarles and Marinosci, the Baumanns contend the district

court erred by: (1) failing to apply the proper standard of review 2; (2) presuming

Quarles and Marinosci had “standing” to challenge the alleged rescission of their

mortgages; (3) failing to apply Truth in Lending Act (TILA), 15 U.S.C. § 1601 et

seq., provisions concerning challenges to rescission; (4) dismissing the Baumanns’

otherwise legally sufficient complaint; and (5) denying leave to amend the

Baumanns’ rescission-based claims. The Baumanns further contend the district

1 Prober did not appear before the district court and has not entered an appearance in this appeal. 2 The Baumanns enumerate nine issues on appeal. Although each has been considered, some are redundant and have been grouped together for purposes of clarity. Arguments falling under the broader category of challenges to the standard of review applied by the district court include contentions that the district court: (1) reviewed the Baumanns’ pro se pleading under the same standard as one drafted by an attorney; (2) failed to consider the entirety of the pleadings and attachments; (3) failed to accept the Baumanns’ factual allegations as true; and (4) considered facts outside the pleadings. 2 Case: 17-12633 Date Filed: 05/11/2018 Page: 3 of 15

court erred by granting James Baumann damages of only $4,000 in connection

with his default judgment against Prober and by dismissing Debora Baumann’s

claims against Prober altogether. After review, we affirm in part, vacate in part,

and remand for further proceedings.

I. DISCUSSION

A. Challenges to the Standard of Review Applied by the District Court 3

The Baumanns contend the district court misapplied the standard for

reviewing their pro se complaint. Their arguments on this issue are based largely

on a flawed understanding of the applicable legal principles. For example, the

Baumanns conflate legal conclusions with factual allegations. Specifically, they

contend:

The Amended Complaint alleges in Count I and II, a material fact that the transaction was NOT consummated. Had the court below accepted the alleged material fact as true, as it must for the purposes of testing the legal sufficiency and reviewing a motion to dismiss, it would have necessarily reached an opposite conclusion.

That is incorrect 4—whether a transaction was “consummated” for purposes

of TILA is a legal conclusion which, in turn, is based on certain factual and

3 We review de novo a district court’s grant of a motion to dismiss for failure to state a claim under Rule 12(b)(6), accepting as true all factual allegations in the complaint and considering them in the light most favorable to the plaintiff. Ironworkers Local Union 68 v. AstraZeneca Pharm., LP, 634 F.3d 1352, 1359 (11th Cir. 2011). 4 For purposes of this discussion, we need not address the apparent contradiction in the Baumanns’ argument: if the agreement were never consummated, there would be nothing to rescind under TILA. 3 Case: 17-12633 Date Filed: 05/11/2018 Page: 4 of 15

legal predicates. The district court was not obligated to accept as true the

Baumanns’ legal conclusion that the transactions were not consummated.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he tenet that a court

must accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions.”).

“Consummation” is defined for purposes of TILA as “the time that a

consumer becomes contractually obligated on a credit transaction.” 12 C.F.R.

§ 1026.2(a)(13). We have held, consistent with the conclusion reached by at least

two of our sister circuits, that a transaction is “consummated” for purposes of

TILA when the consumer signs the underlying credit documentation. See Bragg v.

Bill Heard Chevrolet, Inc., 374 F.3d 1060, 1068 (11th Cir. 2004) (“Bragg’s

signature on these documents rendered him contractually obligated to the purchase

of credit and thus constituted consummation for purposes of TILA disclosures.”);

accord Lea v. Buy Direct, L.L.C., 755 F.3d 250, 253 (5th Cir. 2014) (“The

agreement was consummated when the Leas signed the Membership Agreement,

Retail Installment Contract, and Payment Agreement and paid the first $100 of

their down payment.”); United States v. Petroff-Kline, 557 F.3d 285, 296 (6th Cir.

2009) (“‘[C]onsummation’ occurs when a borrower signs the loan documents and

becomes obligated to pay . . . .”).

4 Case: 17-12633 Date Filed: 05/11/2018 Page: 5 of 15

As the district court correctly noted, the Baumanns signed the mortgages at

issue in 2005, and the documents attached to the Baumanns’ amended complaint

verify that fact. See Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir.

2016) (“A district court can generally consider exhibits attached to a complaint in

ruling on a motion to dismiss, and if the allegations of the complaint about a

particular exhibit conflict with the contents of the exhibit itself, the exhibit

controls.”). Thus, the district court did not err by concluding the transactions at

issue were consummated for purposes of TILA in 2005, and the Baumanns’ right

to rescind under TILA expired (at the latest) in 2008. See 15 U.S.C. § 1635(f)

(“An obligor’s right of rescission shall expire three years after the date of

consummation of the transaction . . . .”).

This determination is not altered by the amended complaint’s conclusory

allegation that the transactions were never consummated because of unspecified

“predatory lending practices,” “illegal and unfair business practices[,] and fraud.”

The Baumanns cite no authority suggesting that unfair or predatory lending

practices would prevent contract formation. Indeed, even if it were assumed the

Baumanns were fraudulently induced to enter the mortgage transactions, the

mortgages would have been merely voidable by the Baumanns. See Solymar Invs.,

Ltd. v. Banco Santander S.A., 672 F.3d 981, 994 n.13 (11th Cir. 2012) (“[A]

successful claim for fraud in the inducement only makes the underlying contract

5 Case: 17-12633 Date Filed: 05/11/2018 Page: 6 of 15

voidable.”); Fed. Sav. & Loan Ins. Corp. v. Gordy, 928 F.2d 1558, 1565 (11th Cir.

1991) (“Fraud in the inducement, which does not go to the very essence of the

agreement but rather merely induces the party to enter the agreement, would

. . . render the instrument merely voidable and thus capable of transfer.”); Mazzoni

Farms, Inc. v. E.I. DuPont De Nemours and Co., 761 So.2d 306, 313 (Fla. 2000)

(“It is axiomatic that fraudulent inducement renders a contract voidable, not

void.”). Thus, the mortgages would have been valid until voided by the

Baumanns, which means the mortgages were valid when the three-year period for

seeking rescission under TILA expired.

The Baumanns’ other conclusory assertions—that the district court went

outside the pleadings to draw its conclusions, failed to liberally construe their pro

se pleading, and failed to consider the effect of the recorded satisfaction of

mortgage—are likewise contradicted by the record. The Baumanns do not explain

which facts or documents the district court considered outside the amended

complaint and its attachments, and our review of the district court’s opinion does

not reveal any. The district court also expressly acknowledged its duty to liberally

construe the Baumanns’ complaint, and the mere fact the district court concluded

(correctly) that the Baumanns had no statutory right to rescind their mortgage

transactions does not mean the district court reviewed their pro se complaint under

a more stringent standard. Further, the district court allowed the Baumanns’

6 Case: 17-12633 Date Filed: 05/11/2018 Page: 7 of 15

claims to go forward against Defendant Bank of America, N.A. (BANA) based on

the recorded satisfaction of mortgage, which demonstrates it did not fail to

consider that document.

To the extent the Baumanns contend the satisfaction of mortgage issued by

BANA alters the analysis of their rescission rights under TILA, they are incorrect.

After 2008, the Baumanns had no statutory right to rescind their mortgages under

TILA, and there was nothing either the Baumanns or BANA could do to change

that. Whether BANA at some point believed (incorrectly) the mortgage was

rescinded under TILA is irrelevant to determining whether the rescission was, in

fact, effective under TILA. And it cannot reasonably be inferred, as the Baumanns

suggest, that BANA provided a satisfaction of mortgage because consummation

never occurred—the documents attached to the Baumanns’ amended complaint

contradict that assertion.

Finally, to the extent the Baumanns contend the rescissions were valid

because BANA failed to file a lawsuit challenging the rescission within twenty

days, that contention also lacks merit. As discussed above, the Baumanns had no

statutory right to rescind the agreements after 2008. Under the facts of this case,

where the rescissions were not attempted until well after TILA’s three-year period

for rescinding transactions had expired, it does not matter whether BANA filed a

lawsuit challenging the rescissions—the notices of rescission were ineffective at

7 Case: 17-12633 Date Filed: 05/11/2018 Page: 8 of 15

the time they were sent. See Jesinoski v. Countrywide Home Loans, Inc., 135 S.

Ct. 790, 792 (2015) (stating that 15 U.S.C. § 1635(a) “govern[s] the life of the

underlying right” and “tells us when the right to rescind must be exercised,” before

concluding that “so long as the borrower notifies within three years after the

transaction is consummated, his rescission is timely” (alteration and first emphasis

in original)). If the Baumanns had provided a notice of intent to rescind within the

time permitted by the statute, their argument based on BANA’s failure to timely

challenge the rescission might have more force. But they did not timely provide

such notice, and their argument fails for that reason.

B. Standing to Object to Rescission

Next, the Baumanns argue the district court erred by presuming Quarles and

Marinosci had “standing” to challenge the purported rescissions. Although their

argument on this point is unclear, the Baumanns appear to suggest that only BANA

(as a party to the mortgage agreements) had standing to contest the validity of the

purported rescissions; thus, Quarles and Marinosci should have been barred from

asserting invalidity as a defense to the Baumanns’ claims. This argument also

lacks merit.

As an initial matter, Quarles did not question the validity of the rescission in

its motion to dismiss, so the Baumanns’ argument does not apply to Quarles.

Further, BANA challenged the validity of the rescissions. So even crediting the

8 Case: 17-12633 Date Filed: 05/11/2018 Page: 9 of 15

Baumanns’ theory of “standing,” the issue was properly before the district court,

and the district court was free to allow its determination on that issue to influence

its resolution of the Baumanns’ claims against other defendants. Finally, even if it

would have been improper for Marinosci to object to the Baumanns’ alleged

rescission in other contexts, its challenge in this case was proper. The Baumanns

sued Marinosci, alleging it knew or should have known the Baumanns’ debt was

invalid. Their basis for that claim, in part, was Marinosci’s alleged knowledge of a

valid rescission under TILA. Thus, Marinosci was entitled to defend against the

Baumanns’ claims by denying it knew or should have known of a valid

rescission—which it did by arguing the purported rescission was invalid as a

matter of law. The district court did not err by considering that argument.

C. Denial of Leave to Amend Rescission-Based Claims 5

To the extent the Baumanns’ claims are based on TILA’s rescission

provisions, they fail as a matter of law, and there are no facts the Baumanns can

allege in good faith to state a valid claim. Thus, the district court did not abuse its

discretion by denying leave to amend the Baumanns’ rescission-based claims.

Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005) (stating a district

court need not allow amendment where amendment would be futile).

5 A district court’s decision to deny a request for leave to amend is reviewed for abuse of discretion. Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007). We review de novo a district court’s determination that amendment would be futile. Id.

9 Case: 17-12633 Date Filed: 05/11/2018 Page: 10 of 15

D. Other Grounds for Dismissal

Construing the Baumanns’ appeal liberally, the Baumanns also object to the

district court’s dismissal of their claims against Quarles and Marinosci to the

extent those dismissals were based on grounds other than invalidity of the

rescissions under TILA. With respect to Quarles, the district court correctly noted

that the extent of Quarles’s alleged involvement in violations of the Fair Debt

Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 et seq., and the Florida

Consumer Collection Practices Act (FCCPA), Fla. Stat. §§ 559.55 et seq., was

limited to its representation of BANA in state-court litigation filed by the

Baumanns.

Even if we assume an argument made solely in response to litigation filed by

a consumer can be construed as an unlawful attempt to collect a debt from that

consumer, the district court correctly determined the Baumanns’ amended

complaint fails to allege facts raising a right to relief above the speculative level.

See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, it did not err by

dismissing the Baumanns’ claims against Quarles without prejudice. And because

the Baumanns declined to timely amend their complaint to allege additional facts

concerning Quarles’s alleged unlawful collection practices (despite being given

leave and a deadline to do so), the district court did not abuse its discretion by

subsequently dismissing the Baumanns’ claims against Quarles with prejudice.

10 Case: 17-12633 Date Filed: 05/11/2018 Page: 11 of 15

See Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991), overruled in part by

Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002)

(en banc) (holding that a pro se plaintiff must generally be given one chance to

amend before a complaint is dismissed with prejudice).

The dismissal of the Baumanns’ claims against Marinosci, however, was

based on a determination that the Baumanns “essentially allege[d] that BANA and

Marinosci violated [the FDCPA and FCCPA] by collecting or attempting to collect

on a mortgage obligation which was rescinded under TILA.” Although that was

certainly a large part of what the Baumanns alleged against Marinosci, the

amended complaint alleged more:

The facts are clear and undisputed that Defendant [BANA] and Plaintiff entered in to a settlement agreement which Plaintiff did not breach. . . . The actions of Defendant [BANA] and MARINOSCI that violated federal law include but [are not] limited to . . . [f]iling documents in the courts claiming to have been owed an amount that far exceeds the settlement amount and threaten[ing] to foreclose on the Executive property when Plaintiff fully complied with the settlement agreement.

The amended complaint further alleges that BANA and Marinosci “file[d] false

proofs of claims in federal courts in an attempt to collect a debt that Defendants

[BANA] through MARINOSCI knew or should have known cannot be legally

collected.”

It is difficult to reconcile the district court’s conclusion that Marinosci could

not have violated the FDCPA and FCCPA by attempting to collect a debt from 11 Case: 17-12633 Date Filed: 05/11/2018 Page: 12 of 15

James Baumann with its conclusions elsewhere in its opinion. Specifically, the

district court determined that the Baumanns’ FDCPA and FCCPA claims could

move forward against BANA as to one of the two mortgages, based on allegations

that BANA sought to collect on the purportedly satisfied mortgage in James

Baumann’s bankruptcy proceedings. See Dist. Ct. Op. at 7 (“[T]he filing of an

unenforceable proof of claim in a bankruptcy proceeding constitutes an unlawful

debt collection practice.” (citing Crawford v. LVNV Funding, LLC, 758 F.3d 1254,

1259–61 (11th Cir. 2014)). It then determined that the Baumanns had sufficiently

alleged a claim against BANA for breaching the parties’ purported settlement

agreement by filing an inflated proof of claim in James Baumann’s bankruptcy

proceedings. See id. at 8.6

It is unclear, then, why the Baumanns’ allegation that BANA and Marinosci

violated the FDCPA and FCCPA by filing a proof of claim in an “amount that far

exceeds the settlement amount” would not similarly state a plausible claim. The

district court never addressed that issue, however, because it apparently concluded

the Baumanns’ claims against Marinosci were based entirely on the ineffective

rescission. We therefore vacate in part the dismissal of the Baumanns’ claims

6 We note that Debora Baumann is not a party to the mortgage or purported settlement agreement at issue in the claims against Marinosci. Thus, the district court’s reasoning in denying Debora Baumann’s claims for a default judgment against Prober may also apply to Marinosci—at least to the extent her claims are premised on a proof of claim filed in James Baumann’s bankruptcy. Nevertheless, because the district court did not reach this issue, we leave it to the district court to determine on remand the extent to which Debora Baumann has stated a claim against Marinosci. 12 Case: 17-12633 Date Filed: 05/11/2018 Page: 13 of 15

against Marinosci and remand so the district court may address the viability of the

settlement-based claims in the first instance. 7

E. District Court’s Rulings on the Baumanns’ Motion for Default Judgment8

Finally, the Baumanns claim the district court erred by awarding James

Baumann only $4,000 in damages in connection with his default judgment against

Prober. They also argue the district court erred by dismissing Debora Baumann’s

claims against Prober altogether.

We agree with the district court that Debora Baumann cannot state a claim

based solely on Prober’s filing a false claim in James Baumann’s individual

bankruptcy proceedings. We therefore affirm the district court’s judgment in that

respect.

Nevertheless, we have held that damages for a default judgment may not be

entered without an evidentiary hearing “unless the amount claimed is a liquidated

7 At this point, we do not express an opinion on whether Marinosci’s conduct would ultimately be actionable under the FDCPA or FCCPA. See Miljkovic v. Shafritz and Dinkin, P.A., 791 F.3d 1291, 1307 (11th Cir. 2015) (“It is not enough to allege that Appellant believed that he was entitled to the ‘head of family’ exemption and that Appellees inconveniently and disappointingly disagreed. It would be passing odd to find that allegations that a state court filing asserted a legal position contrary to that of the consumer were sufficient to state a claim under § 1692e [of the FDCPA]. Without more, we will not limit a debt-collector attorney’s ability to engage in conduct inherent to the adversarial process . . . .” (citations omitted)). 8 We review a district court’s award of damages under a clearly erroneous standard. Long ex rel. Meader v. United States, 881 F.2d 1056, 1060 (11th Cir. 1989). A district court’s decision not to hold an evidentiary hearing before awarding damages in a default judgment is reviewed for abuse of discretion. See S.E.C. v. Smyth, 420 F.3d 1225, 1230 (11th Cir. 2005).

13 Case: 17-12633 Date Filed: 05/11/2018 Page: 14 of 15

sum or one capable of mathematical calculation.” 9 The amount of statutory

damages to which James Baumann was entitled is capable of mathematical

calculation, but James Baumann also sought greater compensatory damages. And

although the district court correctly noted the Baumanns’ motion failed to

sufficiently prove either the existence or amount of those actual damages, the

proper course was to hold an evidentiary hearing at which James Baumann could

endeavor to meet his burden of proof. We therefore conclude the district court

abused its discretion by disregarding James Baumann’s claim for actual damages

and entering a default judgment without providing Baumann an opportunity to

prove his damages at an evidentiary hearing. Accordingly, we vacate the final

default judgment entered against Prober.10

II. CONCLUSION

We affirm the district court’s orders dismissing the Baumanns’ claims

against Quarles, as well as its order dismissing all claims based on the ineffective

rescission. We vacate the district court’s dismissal of the Baumanns’ claims

9 Adolph Coors Co. v. Movement Against Racism and the Klan, 777 F.2d 1538, 1543 (11th Cir. 1985) (quoting United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979)); see also Giovanno v. Fabec, 804 F.3d 1361, 1366 (11th Cir. 2015) (“The district court may forego a hearing where all essential evidence is already of record.” (quotation omitted)); Smyth, 420 F.3d at 1230–31 (noting that basic notions of due process generally require the district court to provide a hearing to determine the amount of damages unless the amount of damages is uncontested or otherwise involves a sum certain). 10 We do not suggest the district court clearly erred by limiting punitive damages to $2,000. Nevertheless, the district court is free on remand to revisit the issue of punitive damages in light of any evidence produced at the damages hearing. 14 Case: 17-12633 Date Filed: 05/11/2018 Page: 15 of 15

against Marinosci, to the extent those claims are based on attempts to collect

amounts in excess of the parties’ alleged settlement agreement. We further vacate

the default judgment issued against Prober, and we remand to the district court for

further proceedings consistent with this opinion.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR

FURTHER PROCEEDINGS.