WILSON
v.
THE BANK OF NEW YORK
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The court granted the defendant's motion to quash service of process and vacate the default judgment because the plaintiff served an unauthorized agent.
Plaintiff sued the defendant bank, and a default judgment was entered in state court. The defendant moved to vacate the default and quash service of p…
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THIS CAUSE is before the Court on Defendant Bank of New York Mellon (“BONYM”)1 f/k/a The Bank of New York, as Successor Trustee in Interest to JPMorgan Chase Bank, N.A., as Trustee for SAMI II 2006-AR6’s Motion to Vacate Default and Motion to Quash Service of Process (“Motion”) (Doc. 19), Plaintiff’s Response thereto (Doc. 22),2 and Defendant’s Reply in Support of Motion (“Reply”) (Doc. 56).3
Centurion Sys., LLC v. Bank of New York Mellon, No. 8:21-cv-726-SDM-AAS, Doc. 36 (M.D. Fla. Apr. 19, 2021) (denying plaintiff’s motion to remand, granting defendant’s motion to quash service of process and to vacate the default judgment, and again warning plaintiff’s attorney that “asserting the now repeatedly unsuccessful argument might result in a sanction”); 30531 Midtown Court Land Tr. v. Deutsche Bank Nat’l Tr. Co., No. 3:21-cv-185-TJC- JBT, Doc. 11 (M.D. Fla. Apr. 16, 2021); YHT & Assocs., Inc. v. Deutsche Bank Nat’l Tr. Co., No. 3:21-cv-50-TJC-JBT, Doc. 24 (M.D. Fla. Apr. 15, 2021); Kaye v. Bank of New York Mellon, No. 8:21-cv-469-WFJ-TGW, Docs. 37 & 38 (M.D.
No. 8:21-cv-626-SPF, Doc. 18 (M.D. Fla. Apr. 6, 2021)5; Decoursy v. Deutsche Bank Nat’l Tr. Co., No. 8:21-cv-630-WFJ-JSS, Doc. 31 (M.D. Fla. Mar. 31, 2021); Haulsee v. Deutsche Bank Nat’l Tr. Co., No. 8:21-cv-349-SDM-JSS, Doc. 26, 2021 WL 1220759, *2 (M.D. Fla. Mar. 30, 2021)6; LP Assets, LLC v. Deutsche Bank Nat’l Tr. Co., No. 8:21-cv-338-SDM-CPT, 2021 WL 940515 (M.D. Fla. Mar. 12, 2021) (denying plaintiff’s motion to remand and warning plaintiff that “attempting to remand another action by asserting the same repeatedly unsuccessful and repeatedly unwarranted argument might result in the imposition of a sanction”); Abundant Life Homes, LLC v. Deutsche Bank Nat’l Tr. Co., No. 4:21-cv-53-AW-MAF, 2021 WL 958568, *3 (N.D. Fla. Mar. 12, 2021); Gossamer Wing, LLC v. Bank of New York Mellon, No. 21- 80319-CIV-CANNON/Brannon (S.D. Fla. Mar.5, 2021)7; Kenny v. Deutsche
Bank Nat’l Tr. Co., No. 2:21-cv-9-SPC-NPM, 2021 WL 778877 (M.D. Fla. Mar.1, 2021)8; Mkt. Tampa Invs., LLC v. Deutsche Bank Nat’l Tr. Co., No. 2:21-cv-
9 On April 30, 2021, Judge Chappell dismissed the action with prejudice for 10 On April 26, 2021, Judge Chappell dismissed the action without prejudice on plaintiff’s notice of voluntary dismissal. 11 On April 30, 2021, Judge Chappell dismissed the action with prejudice for 12 On April 30, 2021, Judge Chappell dismissed the action with prejudice for 13 On April 30, 2021, Judge Chappell dismissed the action with prejudice for 14 On February 24, 2021, Judge Covington dismissed the action without prejudice on plaintiff’s notice of voluntary dismissal. 2021)15; see also 1944 Woodcut Drive Land Tr. v. Bank of New York Mellon, No. 2:21-cv-80-SPC-NPM, Doc. 32 (M.D. Fla. Mar.4, 2021) (dismissing action without prejudice on plaintiff’s notice of voluntary dismissal, which was filed immediately after defendant responded to plaintiff’s motion for remand). Cf. Jacaranda, LLC v. Bank of New York Mellon, No. 4:21cv83-WS/MAF (N.D. Fla. Apr.1, 2021) (granting plaintiff’s motion to remand where defendant had not submitted an affidavit from any Bank official that CT was not a registered agent authorized to accept service of process on behalf of the Bank and it was unclear “why the Bank would accept service of process through CT in some cases but not others,” as a result of which the court found that “the
Bank ha[d] failed to overcome the presumption of regularity that attaches to a proper return of service,” but emphasizing that the court’s finding was made “for purposes of resolving the motion to remand only” and was limited to the record at that time).16
15 On May 12, 2021, Judge Jung dismissed the case for plaintiffs’ failure to prosecute. 16 In Lofgren v. Bank of New York Mellon, No. 21-cv-60374-BLOOM/Valle (S.D. Fla. Mar. 19, 2021), Judge Bloom granted plaintiff’s motion for remand but not for the reasons briefed by the parties. Judge Bloom noted that “while not briefed by either party, the Court lacks subject matter jurisdiction under the Rooker-Feldman doctrine because the Final Judgment entered in the Foreclosure Action ‘is what is being collaterally attacked in this new lawsuit’” and that plaintiff’s claims in the federal action “could only succeed if the Pinellas County Court erroneously entered final judgment in favor of Defendant in the Foreclosure Action.” Thus, the Court in Lofgren did not address the propriety of service of process. The same result occurred in Ginsberg-Klemmt v. Deutsche Bank Nat’l Tr. Co., No. 4:21-cv-10010-JLK (S.D. Fla. Mar.1, 2021) (granting plaintiff’s motion for Accordingly, it is ORDERED: 1. The Motion (Doc. 19) is GRANTED to the extent the service is QUASHED, and the default, entered against Defendant in state court, 1s VACATED."" 2. Plaintiff must serve Defendant and file proof thereof on or before August 2, 2021. Failure to comply with this Order will likely result in the dismissal of this action without further notice. DONE AND ORDERED at Jacksonville, Florida, on June 2, 2021.
MONTE C. RICHARDSON
UNITED STATES MAGISTRATE JUDGE
Copies to: Counsel of Record remand because, under the Rooker-Feldman doctrine, the federal “case effectively amount/ed] to an appeal of a state court judgment, which thle] Court ha[d] no jurisdiction to entertain”). Both Lofgren and Ginsberg-Klemmt are included in Plaintiff's Notice of Supplemental Authority (Doc. 34), filed in the present action. 17 The present Motion also seeks an award of reasonable attorney’s fees and costs to BONYM for “pursuing its relief pursuant to 28 U.S.C. § 1927” and “sanctions against Plaintiff and Plaintiff's Counsel, including, but not limited to dismissal of the Plaintiffs suit.” (Doc. 19 at 19-20.) The Court defers ruling on Defendant’s request for attorney’s fees and costs and its request for sanctions.