Deutsche Bank National Trust Co. v. Foxx
971 F. Supp. 2d 1106
M.D. Fla.2013Background
- Deutsche Bank filed for foreclosure on June 15, 2011; Foxx (pro se) answered with a 15‑count counterclaim/third‑party complaint alleging wrongful foreclosure and related claims arising from an alleged Streamlined Modification Agreement (SMA).
- Foxx alleges Ocwen offered a mortgage modification, he made 19–20 payments believing the SMA was consummated, but Ocwen retained the payments and failed to credit his account or update credit reporting.
- Foxx previously sued the same defendants in related prior litigation in which an FCRA claim was dismissed with prejudice after two amendment opportunities.
- Defendants moved to dismiss: arguing res judicata for Count I (FCRA), statute‑of‑limitations for Count XI (TILA), that many claims are shotgun/insufficiently pleaded, and that Foxx waived a jury trial by mortgage provision.
- The Court found the pleading a typical shotgun filing, dismissed various counts (some with prejudice, some without), struck the jury demand under the mortgage waiver, and granted Foxx leave to amend certain counts by a deadline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Res judicata as to FCRA (Count I) | FCRA claim based on continued inaccurate reporting after prior suit; alleges new facts (post‑litigation payments) | Prior litigation already dismissed FCRA with prejudice; same parties and cause; claim barred | Dismissed with prejudice: res judicata applies; any §1681s‑2(b) claim also fails for lack of required CRA notice |
| TILA statute of limitations (Count XI) | Statute tolled by defendants’ inaccurate statements and continuing misconduct | TILA one‑year damages period expired; no equitable tolling shown | Dismissed with prejudice: time‑barred; plaintiff failed to plead grounds for equitable tolling |
| Sufficiency / shotgun pleading (multiple Counts II–IV, VI–VIII, X, XIII, XIV) | Facts alleged support FDCPA, FCCPA, FDUTPA, breach, fraud, misrepresentation, negligence, conversion, etc. | Counterclaim is a 43‑page, 136‑paragraph shotgun pleading lacking particularized facts and fails to plead essential elements | Dismissed without prejudice as to those counts; plaintiff granted leave to amend limited claims if non‑frivolous and corrected |
| Jury trial waiver | Foxx demands jury trial for all triable issues | Mortgage contains a broad jury‑waiver clause covering claims arising out of or related to the Security Instrument or Note | Jury demand stricken: waiver applies to Foxx’s asserted claims |
Key Cases Cited
- Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., 711 F.2d 989 (11th Cir. 1983) (pleading standard on motion to dismiss)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleadings)
- Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499 (11th Cir. 1984) (res judicata bars subsequent suit on same cause)
- Concordia v. Bendekovic, 693 F.2d 1073 (11th Cir. 1982) (elements required to establish res judicata)
- Perry v. Stewart Title Co., 756 F.2d 1197 (5th Cir. 1985) (FDCPA excludes creditors and mortgage servicers for debts not in default at assignment)
- Butler v. Yusem, 44 So.3d 102 (Fla. 2010) (elements of fraudulent misrepresentation under Florida law)