Appeals -- Sanctions -- Failure to timely file initial
brief -- Failure to obey court orders -- Appellate counsel referred to Local
Professionalism Panel
NOCARI INVESTMENT, LLC, et al., Appellants, v. WELLS
FARGO BANK, N.A., et al., Appellees. 3rd District.
Bankruptcy -- Claims -- Objections -- Rule 3001(c)
objections, asserting that proofs of claim did not attach a copy of writing
upon which claims are based, lack merit -- Creditor was not required to prove
that its claims are based on an open-end or revolving consumer credit agreement
-- Objections to claims, which were scheduled as undisputed in amounts
identical to amounts asserted by creditor in its proofs of claim, are not good
faith objections -- Objections to claims on grounds that account summary
statement attached to each proof of claim includes a notation that debt was
“charged off” are legally insufficient -- Mere fact that proof of claim
includes reference to a charge-off date is not, standing alone, a legal basis
for a claim objection -- Even if court followed decisions disallowing claims
where debtor received a Form 1099-C reflecting the cancellation of debt,
validity of proofs of claim remain unrebutted and claims will be allowed where
debtors did not present evidence that they received a Form 1099-C for any of
debts subject of charge-off objections
In re: AMAURYS RODRIGUEZ and ANAEN NUNEZ, Debtors.
U.S. Bankruptcy Court, Southern District of Florida.
Williams v. Poarch Band of Creek Indians
Court: U.S. Court of Appeals for the Eleventh Circuit
Docket: 15-13552 Opinion Date: October 18,
2016
Areas of Law: Constitutional Law, Native American Law
Plaintiff filed suit against the Poarch Band of Creek
Indians, alleging that she was terminated from her job because of her age
pursuant to the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.
621-634. The district court adopted the Magistrate’s Report and Recommendation
to grant the Poarch Band's motion to dismiss the suit based on the doctrine of
tribal sovereign immunity. In this case, there is no evidence that the Poarch
Band waived its immunity, either generally or in the present suit. The court
rejected plaintiff's comparison of the definitions of the term
"employer" found in the ADEA and Title VII, in conjunction with the
Supreme Court's opinion in Fitzpatrick v. Bitzer; plaintiff's argument that the
ADEA is a statute of general applicability is foreclosed by the court's
precedent; and other circuits that have considered the issue raised by this
appeal also have determined that federal courts lack subject-matter
jurisdiction over an ADEA claim asserted against a federally-recognized Indian
tribe. Accordingly, the court affirmed the district court's decision to grant
the Poarch Band’s motion to dismiss for lack of subject-matter jurisdiction.
http://j.st/46tR
Bankruptcy -- Discharge -- Fraudulent transfer --
Discharge should be denied pursuant to Section 727(a)(2)(A) because debtor
transferred property within one year before his bankruptcy petition with intent
to hinder, delay, or defraud his creditors -- Debtor transferred property where
debtor liquidated his pension fund, deposited the net proceeds of fund in his
individual checking account, and within the two months between the deposit and
filing of his bankruptcy petition made a number of transactions which had the
effect of significantly diminishing his bank account -- Debtor cannot claim
that proceeds of liquidated pension account were exempt from his Chapter 7
estate where he voluntarily withdrew funds from his pension plan, funds were
never placed in designated individual retirement account or any other investment
vehicle, Section 222. 21(c), Florida Statutes, did not provide an exemption for
funds after they were paid to debtor and deposited into his checking account,
and debtor did not claim an exemption for his checking account under that
statute -- False oath or account -- Discharge should be denied pursuant to
Section 727(a)(4) where debtors knowingly made a false oath on the bankruptcy
schedules -- Where Statement of Financial Affairs signed by debtors did not
disclose liquidation of pension fund; income received as a result of fund's
liquidation; or gifts that debtor wife made from proceeds of fund, even though
she was aware that the transactions had occurred within two months before
bankruptcy petition was filed, debtors' nondisclosures constitute false oaths
-- Debtors were obligated to disclose assets and transactions, despite their
claim that pension proceeds were exempt -- Circumstantial evidence shows that
debtors intended to hinder, delay, or defraud their creditors by disposing of
proceeds of pension fund and misrepresenting the transactions on their
bankruptcy schedules -- Based on circumstances, court could conclude that
debtor husband had prior knowledge of bankruptcy process, that debtors were
aware of claims of mortgage creditors who had foreclosed on their home, that
husband liquidated his pension fund in effort to remove it from reach of
creditors, and that debtors thereafter attempted to spend pension proceeds or
otherwise conceal them from bankruptcy estate -- Failure to satisfactorily
explain loss of assets or deficiency -- Discharge should be denied pursuant to
Section 727(a)(5) because debtor experienced a loss of assets and failed to
provide a satisfactory explanation for the loss -- Debtor's bank accounts were
significantly diminished in weeks before bankruptcy petition was filed, and he
was unable to provide even vague or speculative explanations of many
transactions that took place on eve of his bankruptcy
In re: JEFFREY LEONARD JONES, DARNELLA COLE JONES,
Debtors. U.S. Bankruptcy Court, Middle District of Florida, Jacksonville
Division.
Child custody -- Jurisdiction -- Uniform Child Custody
Jurisdiction Enforcement Act -- Florida is home state of child who was born in
Florida and lived in Florida until mother relocated to New York when child was
less than two weeks old -- Trial court erred in dismissing putative father's
petition for determination of paternity, parental responsibility, child
support, and related relief on basis that court lacked jurisdiction under
UCCJEA because Florida was not child's home state -- Fact that child was born
out of wedlock has no bearing on child's home state
JAMES BAKER, Appellant, v. CARA CATHERINE TUNNEY,
Appellee. 5th District.
Child support -- Income -- Deductions --
Administrative support order erroneously allowed deductions for expenses
against gross income that were not permitted by statute -- Remand for
recalculation of parents' respective net incomes for purposes of child support
guidelines
DEPARTMENT OF REVENUE on behalf of HOLLY N. HARRIS,
Appellant, v. THADIUS DEMENTRIEL CRAWFORD, Appellee. 1st District.
Civil procedure -- Proposal of settlement --
Attorney's fees -- An offer of settlement is not invalid for failing to state,
as required under Rule of Civil Procedure 1.442(c)(2)(F), whether the proposal
includes attorney's fees and whether attorney's fees are part of the legal
claim, where attorney's fees are not sought in the pleadings
SUSANNE L. KUHAJDA, Petitioner, vs. BORDEN DAIRY
COMPANY OF ALABAMA, LLC., et al., Respondents. Supreme Court of Florida.
Civil rights -- Search and seizure -- Arrests --
Excessive force -- Officer's multiple tasings of suspect, after an arrest had
been fully secured and any potential danger or risk of flight eliminated, violated
suspect's clearly established constitutional right to be free from excessive
force -- Where law enforcement officers handcuffed and pinned down the suspect
following a struggle and then tased him five times with at least two of those
tases occurring after suspect had ceased resisting, a reasonable officer in
arresting officer's position and under circumstances would have had fair
warning that repeatedly tasing handcuffed suspect after he had ceased
struggling and resisting was unreasonable and unconstitutionally excessive
under Fourth Amendment -- Evidence construed in favor of plaintiff demonstrates
that suspect was not flight risk or a threat to safety of officers or public
prior to conclusion of tasings -- Officer was not entitled to qualified immunity
on excessive force claim at summary judgment stage of proceedings
PATRICIA JUANITA WATE, individually and as personal
representative of the Estate of James Clifton Barnes, Deceased,
Plaintiff-Appellee, v. KENNETH KUBLER, Defendant-Appellant. 11th Circuit.
Consumer law -- Mortgage foreclosure -- Real Estate
Settlement Procedures Act -- Loss mitigation -- Loan servicer had no duty to
evaluate an application for loss mitigation options submitted by borrowers
when, at time application was submitted, a foreclosure sale of borrowers'
property was scheduled to occur in two days -- Under Regulation X, which
implements RESPA, a loan servicer's duty to evaluate a borrower's loss
mitigation application is triggered only when borrower submits the application
more than 37 days before the foreclosure sale -- Borrowers' application was
untimely, even where servicer postponed the foreclosure sale such that sale
actually transpired more than 37 days after they submitted their complete loss
mitigation application -- To evaluate the timeliness of an application,
Regulation X requires counting the number of days between date a complete loss
mitigation application is received and date of foreclosure sale, and directs
using scheduled date of foreclosure sale as of date complete application was
received to determine date of foreclosure sale -- It is irrelevant if servicer
subsequently reschedules foreclosure sale to a later date -- Because borrowers
completed their application too late to trigger servicer's duty to evaluate the
application, summary judgment was properly granted to servicer on loss
mitigation claim -- Notice of error -- Borrowers were not entitled to summary
judgment on separate claim that loan servicer failed to respond adequately to
their subsequent notice of error as required by Regulation X, because borrowers
failed to present evidence that they suffered actual damages or were entitled
to statutory damages based on pattern or practice of RESPA noncompliance -- Use
of a template to respond to borrowers' notice of error was insufficient
evidence from which to infer that servicer had a pattern or practice of issuing
form letters that were unresponsive to borrowers' notices of error
JOHN LAGE, MARIA MANTILLA, Plaintiffs-Appellants, v.
OCWEN LOAN SERVICING LLC, Defendant - Appellee. 11th Circuit.
Mortgages -- Satisfaction -- Failure to timely record
certificate of discharge -- Jurisdiction -- Plaintiff who used proceeds of real
estate sale to satisfy a mortgage owned by defendant lacks standing to sue when
he alleges only a failure to record a satisfaction of mortgage within a
statutory period and fails to bring suit until after that statutory violation
has been remedied -- Because plaintiff has not alleged that the violation of
New York law that occurred when defendant failed to timely record the discharge
of mortgage caused or could cause him harm that could constitute a concrete
injury in fact, appeal from dismissal of complaint must be dismissed for lack
of jurisdiction
ROGER NICKLAW, on behalf of himself and all others
similarly situated, Plaintiff-Appellant, v. CITIMORTGAGE, INC.,
Defendant-Appellee. 11th Circuit.
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