Myers v. America's Servicing Co.

227 F.R.D. 268, 2005 U.S. Dist. LEXIS 4222, 2005 WL 627554
CourtDistrict Court, E.D. Virginia
DecidedMarch 11, 2005
DocketACTION No. 2:04CV429
StatusPublished
Cited by1 cases

This text of 227 F.R.D. 268 (Myers v. America's Servicing Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Myers v. America's Servicing Co., 227 F.R.D. 268, 2005 U.S. Dist. LEXIS 4222, 2005 WL 627554 (E.D. Va. 2005).

Opinion

OPINION AND ORDER

REBECCA BEACH SMITH, District Judge.

This matter is before the court on the motion of defendant, America’s Servicing Company, for sanctions against plaintiff, Doretha Myers, pursuant to Rule 11 of the Federal Rules of Civil Procedure, and on the court’s Order to Show Cause issued to plaintiff on January 5, 2005. For the reasons stated below, the court GRANTS defendant’s motion for sanctions and DISMISSES the show cause order.

I. Factual and Procedural History

This case has a long and protracted history in the courts. In September 1999, the plaintiff, Doretha C. Myers, purchased a home in Portsmouth, Virginia, by taking out a mortgage with an unknown lender. In 1997, the plaintiff refinanced the home and the mortgage was sold multiple times until defendant, America’s Servicing Company, bought the mortgage in 2002. Myers apparently had difficulty paying the mortgage during this time. Between March 30, 1999, and July 26, 2004, Myers or her husband, Lenard Myers, filed ten Chapter 13 bankruptcy petitions. All but the last one were dismissed for failing to file required plans and schedules with the bankruptcy court. Because of these bankruptcy petitions, five foreclosure sales on the home were cancelled. When another foreclosure sale was scheduled for July 27, 2004, the plaintiff filed suit in this court on July 16, 2004, and one in the Circuit Court of Portsmouth, Virginia, on July 23, 2004. The plaintiff also filed yet another Chapter 13 bankruptcy proceeding on July 26, 2004.

The defendant filed a motion to dismiss on August 24, 2004. The court granted the motion in an Opinion and Dismissal Order dated November 5, 2004. On August 25, 2004, the defendant sent to the plaintiff a copy of its motion for Rule 11 sanctions. The defendant filed the motion on September 21, 2004. In anticipation of the motion for sanctions and in response to defendant’s motion to dismiss, the plaintiff filed on September 20, 2004, “Plaintiffs Response to Defendant’s Motions to Dismiss and Sanctions/Plaintiffs Amended Bill of Complaint.” The defendant did not reply to the filing.

In an Opinion and Order dated November 9, 2004, the court found that Myers’ pleadings violated Rule 11 of the Federal Rules of Civil Procedure. In particular, the court found that the plaintiffs claims were wholly without merit and had no basis in law or fact. Any inquiry by the plaintiff would have revealed that her complaint lacked a cause of action. The plaintiffs claims were wholly frivolous. She asked the court to review her administrative remedy, yet she was never involved in an administrative procedure. She asserted claims of res judicata, judicial estoppel, and stare decisis, which do not state a cause of action. She attempted to create a pleading by using the legal terms nonsensically. Her final claim, a contract claim, involved a contract she fabricated whereby her name was “copyrighted” and every time the defendant used it the defendant owed her $500,000. According to the plaintiff, the defendant agreed to the contract when the defendant later used her name in a collection letter.

In addition, the court found her pleadings to be indicative of an improper purpose. Doretha and Lenard Myers repeatedly filed lawsuits or instituted proceedings in federal and state court when there was a foreclosure sale scheduled for their property. The instant lawsuit was filed seven days before a foreclosure sale was scheduled for the property. A suit to set aside the foreclosure based upon the same facts and law as presented in the instant suit was filed in state court the day of the foreclosure, and a Chapter 13 bankruptcy court proceeding was instituted three days later to nullify the foreclosure. The plaintiff instituted proceedings in this and other courts for the improper purpose of delaying the foreclosure sale.

While the court decided in its Opinion and Order of November 9, 2004, that the plaintiff was subject to sanctions under Rule 11, the court was unable to determine an amount of sanctions at that time. Because [270]*270the primary purpose of Rule 11 is to deter future litigation abuse, see In re Kunstler, 914 F.2d 505, 522-23 (4th Cir.1990), the court is required impose the least sev'ere sanction that fulfills the purpose of Rule 11. See Harmon v. O’Keefe, 149 F.R.D. 114, 117 (E.D.Va.1993). It is necessary for the court in imposing sanctions to look at the violator’s ability to pay. Accordingly, in the court’s November 9, 2004, Opinion and Order, the court ordered the plaintiff to “submit a statement of financial condition within thirty (30) days of the date of th[e] Opinion and Order.”

Plaintiff failed to file a statement of financial condition as required by the court. Accordingly, on January 5, 2005, the court entered a Show Cause Order, ordering plaintiff to appear on January 20, 2005, at 10:00 a.m., to show cause why she should not be held in contempt for failure to comply with the court’s Opinion and Order of November 9, 2004, to submit a statement of financial condition. Plaintiff failed to appear at the January 20, 2005, show cause hearing. Her husband called the clerk’s office at approximately 10:30 a.m. to say that they would not be coming because the plaintiff had a doctor’s appointment. Upon her failure to appear, the court issued an arrest warrant and the show cause hearing was reset for Thursday, February 10, 2005, at 11:00 a.m. Plaintiff was arrested on January 24, 2005, and was released on a $3,000 surety bond. Plaintiff hired attorney William P. Robinson to represent her at the bond hearing.

The day before the February 10, 2005, show cause hearing, Mr. Robinson called the court to state that he was now representing Ms. Myers on the show cause and sanctions proceedings, but that he would be unable to attend the February 10, 2005, hearing because of a trial in state court. He then filed a motion (subject to defect) to that effect. A photocopy of a financial statement was also sent to the clerk’s office; it was not filed as it did not contain an original signature. The court convened for the show cause hearing at 10:00 a.m. on February 10, 2005. Plaintiff was present. The court informed plaintiff that she needed to file an accurate financial statement with an original signature. The hearing was continued until March 1, 2005, at 4:00 p.m., so that Mr. Robinson could attend.

On March 1, 2005, the show cause hearing was held. Plaintiff appeared at the hearing and was represented by Mr. Robinson. At the hearing, plaintiff filed a sworn statement of financial condition and testified under oath to its accuracy. While the plaintiff was extremely late in filing the statement of financial condition, the court DISMISSED the show cause order pending against the plaintiff. Defendant filed in open court a revised affidavit of attorney’s fees and costs. The matter is now ripe for the court to determine an appropriate sanction for the Rule 11 violations.

II. Analysis

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
227 F.R.D. 268, 2005 U.S. Dist. LEXIS 4222, 2005 WL 627554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/myers-v-americas-servicing-co-vaed-2005.