IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ Case No.

11-10984-F ________________________ IGNACIO DAMIAN FIGUEROA, Appellant, v. MERSCORP, INC., et al., Appellees. ________________________ On Appeal from the United States District Court for the Southern District of Florida ________________________ INITIAL BRIEF OF APPELLANT, IGNACIO DAMIAN FIGUEROA

Submitted and prepared by:

Kenneth Eric Trent, Counsel for Appellant Kenneth Eric Trent, P.A. 831 East Oakland Park Blvd. Fort Lauderdale, FL 33334 (954) 567-5877 (954) 567-5872 [fax] trentlawoffice@yahoo.com

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT IGNACIO DAMIAN FIGUEROA, Appellant, v. MERSCORP, INC., et al., Appellees. _________________________________/ CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT As and for his Certificate of Interested Persons and Corporate Disclosure Statement, Appellant presents the following: 1. the name of each person, attorney, association of persons, firm, law firm, partnership, and corporation that has or may have an interest in the outcome of this action - including subsidiaries, conglomerates, affiliates, parent corporations, publicly-traded companies that own 10% or more of a partys stock, and all other identifiable legal entities related to any party in the case: Appeal No. 11-10984-F

Ignacio Damian Figueroa, Plaintiff The Law Office of Kenneth Eric Trent, P.A. Kenneth Eric Trent, Esq. The Law Offices of David J. Stern, P.A. David J. Stern, Esq. David J. Stern, Individually Morgan, Lewis & Bockius LLP
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Robert M. Brochin, Esq. Andrew B. Boese, Esq. Merscorp, Inc. Tew Cardenas LLP Jeffrey Tew, Esq. Andrew B. Thomson, Esq. Akerman Senterfit & Edison William P. Heller, Esq Everhome Mortgage Company. Squire, Sanders, & Dempsy LLP Jason Daniel Joffe, Esq. Traci H. Rollins, P.A. HSBC Finance Corporation Clarke, Silvergate & Campbell, P.A. Dennis M. Campbell, Esq. Michelle A. McClaskey, Esq. JP Morgan Chase & Co. Adams and Reese LLP Louis M. Ursini, Esq. Citimortgage, Inc. Murai Wald Biondo & Brochin Lynette E. McGuinness, Esq. MGIC Investor Services Concepcion Martinez & Bellido Nelson Bellido, Esq. Patricia Montes de Oca, Esq. Nationwide Advantage Mortgage Company Carpenter, Lipps & Leland, LLP Michael H. Carpenter, Esq. Katheryn M. Lloyd, Esq. Lieber, Gonzalez & Portuondo, P.A. Juan A. Gonzalez, Esq. Goodwin Proctor LLP Joseph F. Yenouskas, Esq. American Land Title Association Bank of America, N.A. Chase Home Mortgage Corporation
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Corinthian Mortgage Fannie Mar First American Title Insurance Freddie Mac GMAC Residential Funding Corporation Guaranty Bank Merrill Lynch Credit Corporation Mortgage Bankers Association Stewart Title Guaranty Company Suntrust Mortgage, Inc. United Guaranty Corporation Well Fargo Bank, N.A. WMC Mortgage Corp. MERSCORP, Inc. Mortgage Electronic Registration Systems, Inc.

2.

The name of every other entity whose publicly-traded stock, equity, or debt may be substantially affected by the outcome of the proceedings:

N/A 3. the name of every other entity which is likely to be an active participant in the proceedings, including the debtor and members of the creditors committee (or twenty largest unsecured creditors) in bankruptcy cases:

N/A 4. the name of each victim (individual or corporate) of civil and criminal conduct alleged to be wrongful, including every person who may be entitled to restitution:

Ignacio Damian Figueroa and others similarly situated

I hereby certify that, except as disclosed above, I am unaware of any actual or potential conflict of interest involving the district judge and magistrate judge assigned to this case, and will immediately notify the Court in writing on learning of any such conflict.

April 20, 2011.

/s/ Kenneth Eric Trent Attorney for Appellant 831 East Oakland Park Blvd. (954)567-5877; (954)567-5872 [fax] trentlawoffice@yahoo.com

TABLE OF CONTENTS Certificate of Interested Persons/Corporate Disclosure Statement---------------2-5 Preface------------------------------------------------------------------------------------7 Table of Authorities--------------------------------------------------------------------7-10 Jurisdictional Statement---------------------------------------------------------------10-11 Statement of the Issues Presented for Review---------------------------------------11 Statement of the Case-------------------------------------------------------------------12 Statement of Relevant Facts-----------------------------------------------------------16-23 Summary of Argument-------------------------------------------------------------------23 Argument--------------------------------------------------------------------------------24-60 Conclusion---------------------------------------------------------------------------------61 Certificate of Compliance----------------------------------------------------------------62 Certificate of Service---------------------------------------------------------------------62

PREFACE The district court granted the Defendants motion to dismiss on one of several grounds alleged, namely the Rooker-Feldman doctrine. Left unaddressed were the Defendants other arguments, such as res judicata and Floridas litigation privilege. While this brief primarily addresses Rooker-Feldman, in an abundance of caution, argument regarding the other issues raised in the motion to dismiss is included as well. Along with his response to the motion to dismiss, Plaintiff/Appellant submitted a number of materials. Certain of these items are designated Exhibits, and others are referred to as Supplements. These documents have been photocopied en masse and are filed and served with this brief as part of the Record Excerpts. Due to the type-volume limitation and time constraints, this brief does not address every case which may reasonably be considered relevant to the outcome of this appeal. Failure to discuss a particular case should not be construed as anything other than the result of a decision that the limited space and resources available are better used addressing another topic or precedent.

TABLE OF AUTHORITIES Aboyade-Cole Bey v. BankAtlantic, 2010 WL 3069102 (M.D. Fla., Aug. 2, 2010)...................................................41-42 Acadia Partners, L.P. v. Tompkins, 673 So. 2d 487 (Fla. 5th DCA 1996)..................................................................48 American Institutional Partners, LLC v. Fairstar Resources Ltd., 2011 WL 1230074 (D. Del., March 31, 2011)..................................................28-30 Bolden v. City of Topeka, 441 F.3d 1129, 1143-44 (10th Cir. 2006)....................................................................................39 Brown v. RJ Reynolds Tobacco Co., 611 F.3d 1424 (11th Cir. 2010)...............42-43 Carvana v. MFC Financial, Inc., 547 F.Supp.2d 1219 (D. Utah 2008)..........38, 39 Casale v. Tillman, 558 F.3d 1258 (11th Cir. 2009)...........................................27, 43 Chandler v. Chandler, 226 So. 2d 697 (Fla. 4th DCA 1969)............................47 Dean v. Wells Fargo Home Mortgage, case no. 2:10-cv-564-FtM-29SPC (M.D. Fla., April 21, 2011).....................................26-27 District of Columbia Court of Appeals v. Feldman, 460 U.S.462 (1983)........34 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)...................................................................................28 Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992)............................................54 Garcia v. Copenhaver, Bell & Associates, M.D.s, P.A., 104 F.3d 1256, 1261 (11th Cir. 1997).................................................................26 GMAC Mortgage v. Gasque, Fla. Cir. Ct., 4th Cir., case no. 16-2008-ca-012971(September 2, 2010)............................................50-51

Green v. Jefferson County Comm'n, 563 F.3d 1243, 1249-50 (11th Cir. 2009)...............................................................................27 Heintz v. Jenkins, 514 U.S. 291 (1995).........................................................52 Hoblock v. Albany Cnty. Bd., 422 F.3d 77, 85 (2d Cir. 2005).....................37 Jackson v. Farmers Insurance Group/Fire Insurance Exchange 11th Cir. Appeal No. 09-15904 (August 2, 2010).........................................11 Kenmen Engg v. City of Union, 314 F.3d 468 (10th Cir. 2002) ..................34 Lance v. Dennis, 126 S. Ct. 1198, 1201 (2006)............................................27 Levin, Middlebrooks, Mabie, etc. v. US Fire Insurance Co., 639 So. 2d 606 (Fla. 1994)...........................................................................50 McCammon v. Bibler, Newman, & Reynolds, P.A., 493 F.Supp.2d 1166 (D. Kansas 2007)........................................................39 Mortgage Elec. Registration Sys. Inc. v. Badra, 991 So. 2d 1037(Fla. 4th DCA 2008)............................................................46 Nicholson v. Shafe, 558 F.3d 1266 (11th Cir. 2009).....................................11, 48-49 Parker v. Potter, 368 F. App'x 945, 948 (11th Cir. 2010)...........................45 Pumo v. Pumo, 405 So. 2d 224 (Fla. 3d DCA 1981)..................................48 Richardson v. Miller, 101 F.3d 365 (11th Cir. 1996)..................................51 Sayyed v. Wolpoff & Abramson, 485 F.3d 226 (4th Cir. 2007)..................45-48 Seaboard Coast Line R.R. Co. v. Indus. Contracting Co., 260 So. 2d 860 (Fla. 4th DCA 1972)............................................................26 Simanonok v. Simanonok, 787 F.2d 1517, 1519 (11th Cir. 1986).................40

Skinner v. Switzer, 562 U.S. _____ (March 7, 2011)..................................40 State v. McBride, 848 So. 2d 287, 290 (Fla. 2003).....................................45 Storck v. City of Coral Springs, 354 F.3d 1307, 1310 n.1 (11th Cir. 2003).............................................................................27 Swiatkowski v. Citibank, case no. 10-CV-114 (E.D.N.Y., October 7, 2010)...................................................15, 54-57 Sykes v. Mel Harris & Assoc., LLC, case no. 09-Civ-8486(DC) (S.D.N.Y., December 29, 2010).................................................................59-60 U.S. v. Cueto, 151 F.3d 620 (7th Cir. 1998)................................................52-54 Weldon v. Asset Acceptance, LLC, case no. 1:10-cv-0660-JMS-MJD (D. Indiana, March 14, 2011)............................39-41 JURISDICTIONAL STATEMENT 1. The basis for the district courts jurisdiction

Because this case is one for violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 1962 and 1964, the district court had federal question jurisdiction pursuant to 28 U.S.C. 1331. 2. The basis for the court of appeals jurisdiction

28 U.S.C. 1294(1). 3. The filing date(s) establishing the timeliness of the appeal

The district court dismissed this case with prejudice on January 31, 2011,

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(Record Excerpt C)1 and this appeal ensued. It was filed on February 28, 2010, and is therefore timely. (DE 185).2 4. The effect of order being appealed

This appeal is from a final order dismissing the Third Amended Complaint with prejudice as to all Defendants (now Appellees). There were no counterclaims or crossclaims filed in the action below. The order being appealed disposed of all claims with finality, subject only to appeal. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW I. Whether the district court lacked subject-matter jurisdiction over the Plaintiffs claim by operation of the Rooker-Feldman doctrine.

A. Standard of Review. A district courts determination that it lacks subject matter jurisdiction over a plaintiffs claims in light of the Rooker-Feldman doctrine is reviewed de novo. Jackson v. Farmers Insurance Group/Fire Insurance Exchange, 11th Cir. Appeal No. 09-15904 (August 12, 2010)(citing Nicholson v. Shafe, 558 F.3d 1266 (11th Cir. 2009). References to items contained within Appellants Record Excerpts will hereinafter be cited as RE followed by A, B, C, etc.
1

Entries in the district courts record which are not included in Plaintiffs Record Excerpts shall be identified using DE followed by the number assigned. The index to such numbers is filed and served concurrently herewith as item A of Plaintiffs Record Excerpts.
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STATEMENT OF THE CASE I. The Nature of the Case

The case is a proposed class action3 in which Plaintiff-turned-Appellant, Damian Ignacio Figueroa, (hereinafter Plaintiff), asserts three counts for treble damages pursuant to the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 1962. Plaintiff alleges that he and the other class members were actual and intended victims of a far-reaching conspiracy to defraud centered around and relying upon a business entity having the name Mortgage Electronic Registration Systems, Inc., or MERS. As the applicable law requires, MERS is not a defendant in this proceeding; instead Plaintiff alleges that MERS is a racketeering enterprise proscribed by RICO. According to paragraph 3 of the Third Amended Complaint, which is docket entry 112 on the district court docket sheet, MERS: was created for an illegal and fraudulent purpose and it has been largely successful in performing as intended by its creators. Its raison detre is to enable the conspirators to illegally obtain profits in a variety of ways . . . . The conspirators behind the MERS enterprise and artifice use MERS to disguise the true identities of lenders, loan originators, real parties in interest and of those proceeding against the mortgagors as plaintiffs in foreclosure actions which they have no legal right to bring.

For the sake of efficiency, proposed will be omitted from references to the putative class or its members.
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The parties Defendant, now Appellees, include the now-infamous Foreclosure King, attorney David J. Stern; the eponymous Florida professional association serving as Sterns law practice; MERSCORP, Inc., corporate parent to MERS; and 24 financial institutions which are the founding shareholders of MERS. Collectively, these Appellees will hereinafter be referred to as Defendants. Plaintiff proposes to serve as class representative for persons having in common the following characteristics: a) Each owned Florida real property which was encumbered by a mortgage

listing MERS as mortgagee; (b) Each suffered the loss of all right, title and interest in his or her

property by operation of an adverse final judgment in a civil action for foreclosure in which the plaintiff was represented by Defendant/Appellee Law Offices of David J. Stern, P.A.; c) Each class members foreclosure action was fraudulently prosecuted in

the name of a plaintiff which was not the real party in interest and which had no legal right to bring suit to foreclose or to obtain final judgment. Notably, this case was filed on July 26, 2010. As of that time the term robosigner was totally unknown to common parlance, and the nationwide foreclosure fraud scandal had not broken. While the accusations made by Plaintiff in this case

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must initially have seemed inconceivably outlandish, extreme, and fantastical, as time passed and more and more information about the practices of the banks and their attorneys came to light through the media, Plaintiffs conspiracy theory became increasingly plausible. It was taken up by Bill McCollum, then Floridas Attorney General, and the other 49 state attorneys general soon followed suit. Indeed,

although it is not an element of the RICO law or the Rooker-Feldman doctrine touted by the district court, it is worth noting that the filing of this case contributed greatly to the discovery and exposure of the illegal documentation practices which are now known to have been standard practice throughout the industry and across the nation. Commentators, legislators, and others have now come to recognize the truth of Plain tiffs allegations concerning MERS and the criminal conspiracy of which it is progeny. See, e.g., Wray, Randall L., thehuffingtonpost.com, Anatomy of Mortgage Fraud, Part 1: MERSs Smoking Gun. (Supplement D). 2. The Course of Proceedings

As stated above, Plaintiffs Complaint was filed on July 26, 2010. (DE 1). The original defendants were MERSCORP, Inc., David J. Stern, and the Law Offices of David J. Stern, P.A. On August 24, 2010 Plaintiff filed his Amended Complaint, adding some 22 financial institutions as defendants based upon their apparent status as original shareholders in MERS. (DE 11). These newly added parties were

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defendants in only Count 3, which alleges that these entities are participants in the MERS conspiracy in violation of RICO. To correct an inadvertent failure to include two financial institutions as defendants in Count 3, Plaintiff filed his Second Amended Complaint on September 5, 2010. (DE 21). Because Plaintiff failed to seek leave of court prior to filing the Second Amended Complaint, the district court struck said pleading from the record on September 7th. (DE 24). After motion (DE 26) and order granting it (27) the Second Amended Complaint was again filed, this time on September 9, 2010. (DE 28). After the filing of various motions to dismiss, and the filing by Plaintiff of one memorandum in opposition (DE 81), the district court entered an order on October 14, 2010. In this order, the district court in shockingly vituperative language made it abundantly clear that she was permitting Plaintiff a final amended complaint. (DE 90). On October 22, 2010, Plaintiff filed his final pleading, the Third Amended Complaint. (DE 112). The district court entered an order requiring that Defendants file one consolidated motion to dismiss, rather than several. (DE 113). The Defendants did so on December 2, 2010. (DE 162). On December 10, the district court ordered the parties to address the Swiatkowski decision (case no. 10-CV-114 (E.D.N.Y, October 7, 2010) in their forthcoming memoranda.

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Plaintiff filed his response to the consolidated motion to dismiss on January 6, 2011 (Record Excerpt B), and after a response from the Defendants the district court dismissed this case with prejudice on January 31, 2011, (Record Excerpt C) and this appeal ensued. It was filed on February 28, 2010, and is therefore timely. (DE 185). 3. The Disposition Below

The Third Amended Complaint (hereinafter the Complaint) was dismissed with prejudice on January 31, 2011. (RE C). STATEMENT OF RELEVANT FACTS The Stern firm sued Plaintiff Figueroa and others including his co-owner Timothy Brown for foreclosure on February 12, 2009, in Florida's 17th Judicial Circuit in and for Broward County Florida. The action was assigned case number 09-008530. The complaint contained the name of attorney Kim F. Stevens

underneath the signature block; however the name of the attorney signing the pleading is, consistent with the pattern and practice of the Stern Defendants, appears not to be that of Ms. Stevens but is otherwise illegible. The original lender in the subject mortgage was "Loan America, Inc." The mortgage at issue contained the standard MERS language. The plaintiff was Indymac Federal Bank FSB F/K/A Indymac Bank FSB. Erica Johnson-Seck signed two different assignments in furtherance of the foreclosure, both of which were recorded in the public records and

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one of which the lawyer from the Stern firm relied upon in arguing to the trial judge at the February 1, 2010 hearing on the plaintiff's motion for summary judgment. In each case Johnson-Seck signed as an officer of a different entity. In the first assignment, which states that it was "prepared by" and should be "return[ed] to" David J. Stern, Esq., she was allegedly an officer of MERS. The first assignment (Exhibit F) contained at least two falsehoods: 1) that MERS is located at 3300 SW 34th Ave. Ste. 101 in Ocala, FL; and 2) that MERS received $1.00 and other good and valuable consideration in exchange for the assignment. In the second assignment, dated November 12, 2009 Johnson-Seck was allegedly an officer of IndyMac Bank, which no longer existed at that time, having been dissolved and merged into a new entity, OneWestBank, FSB, in March of 09. Erica Johnson Seck has been the subject of severe judicial criticism for apparent fraud. In Count II the Defendant Firm brought suit on behalf of said entity "to enforce a lost, stolen or destroyed" promissory note and mortgage. In Count II, the Defendant Firm alleged that the plaintiff (which ceased to exist only one month after the complaint was filed and more than a year prior to the entry of final judgment) was not in possession of the original note and mortgage, that it (the plaintiff) was in possession of the note and mortgage and was entitled to enforce them when the loss occurred and the plaintiff cannot reasonably obtain possession of the note "because THEIR whereabouts" for some reason "cannot be

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determined." On March 26, 2009, the Law Offices of David J. Stern, P.A. filed the original signed promissory note with the court. Neither Mr. Figueroa nor his co-defendant Timothy Brown were served at the residence they shared. Instead, a copy of the complaint was simply left at their doorstep; Mr. Figueroa did not respond to the complaint believing that he did not have to do so since he had not been properly served. On September 16, 2009, a default was entered against Mr. Figueroa. The plaintiff did not attempt to obtain a default final judgment. His co-defendant filed a motion to dismiss based upon lack of subject matter jurisdiction. This motion was filed pro se and contained numerous arguments regarding standing. On February 1, 2010, final judgment of foreclosure was entered. Mr. Figueroa and Mr. Brown subsequently filed an Emergency Motion to Vacate Judgment and Foreclosure Sale. That motion was dated February 4, 2010. On February 22, 2010, attorney Lynn E. Szymoniak entered a notice of appearance on behalf of Figueroa and Brown and she on that same date filed a Motion to Vacate Order Granting Summary Judgment. The motion was later denied. The property was sold at auction on April 8, 2010. The mails and wires were used in furtherance of the scheme to defraud in Plaintiff's foreclosure case, as exemplified by the following predicate acts: a) On or about March 26, 2009, Jean M. Schwartz, legal assistant employed by and acting for the Stern Firm, mailed to the clerk of the circuit court of the

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Seventeenth Judicial Circuit, located at 201 SE 6th St. in Fort Lauderdale, a coverletter concerning the Plaintiff's foreclosure case and stating, in pertinent part, "Please find the enclosed NOTE to be filed in the above-referenced action." This action was in furtherance of the RICO enterprise and the conspiracy beneath it in that it was directed toward obtaining a final judgment of foreclosure to which the plaintiff, represented by the Stern Defendants, was not entitled. b) On or about April 4, 2009, the Defendant Firm mailed to the same clerk of court and to Timothy J. Brown (who owned the property with Plaintiff Figueroa as joint tenants with right of survivorship) a "Notice of Filing Note" and a document asserted to be a copy of the original note. This action was in furtherance of the RICO enterprise and the conspiracy beneath it in that it was directed toward obtaining a final judgment of foreclosure to which the plaintiff, represented by Stern, was not entitled. c) On or about January 26, 2010, the Defendant Firm delivered by an unknown means a fraudulent assignment of mortgage in Plaintiff's case to the Broward County Commission's Official Records Division, with the instruction that it was to be recorded and then returned to the address of the Stern firm. In sending or causing such document to be delivered to Official Records, and by including this instruction, the Stern Defendants intended to obtain and did obtain the return of the document

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through the U.S. mail. It was mailed to the Stern Defendants by Records on or about January 26, 2010, and received by said Defendants within a day or two thereafter. d) On or about August 19, 2009 the Defendant Firm delivered by an unknown means a separate fraudulent assignment of Plaintiff's mortgage in Plaintiff's case to the Broward County Commission's Official Records Division, with the instruction that it was to be recorded and then returned to the address of the Stern firm. In sending or causing such document to be delivered to Official Records, and by including this instruction, the Stern Defendants intended to obtain and did obtain the return of the document through the U.S. mail. It was mailed to the Stern Defendants by Records on or about August 19, 2009, and received by said Defendants within a day or two thereafter. The same pattern of prosecution was followed in all of the members foreclosure cases, with only minor variations from time to time. Specifically, in each case the plaintiff would file suit against the borrower-defendants named in the operative mortgage and note, as well as against two unknown persons referred to in the case styles as John or Jane Does. The initial pleading was titled Complaint to Foreclose Mortgage and to Enforce Lost Loan Documents. The plaintiff by and through the Stern firm would engage in a number of tactics designed to create the impression in the minds of the judiciary that the defendants had been properly served,

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when in fact they had not. In about 50% of cases in which the Stern defendants caused a return of service reflecting personal service to be filed, the defendants had not in fact been served. The plaintiffs moved for default and obtained it, either against John and Jane Doe only, or against John and Jane Doe and the borrowerdefendants. The plaintiff would then move for summary judgment, using a

standardized template that did not meet the moving partys burden to establish that there was no issue of material fact, in particular on the issue of standing. The defendants usually filed a motion to dismiss or answer alleging lack of standing and asserting that foreclosure could not be had without the original loan documents. The plaintiffs, by and through the Stern firm, would create and file one or more assignments purporting to vest standing in the named plaintiff. Then, either a few days prior to or at the time of the hearing on the motion for summary judgment, the lawyer employed by the Stern firm would produce what was touted as the original note and mortgage. Either the Stern Defendants were in possession or control of the original documents the entire time, and pretended not to have them so as to lure the defendants into concentrating their defenses on that issue, or they fraudulently manufactured the documents during the litigation as they are known to have done with assignments. Either way, fraud was committed which proximately caused the final judgments and ultimate takings of the class members real properties. The

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documents fraudulently generated, and other documents which were incidental but still a part of the scheme, were sent by Stern employees through the mails to clerks of court, litigants, and defense attorneys. In many cases the defendants were tricked by the Stern attorney into agreeing to final summary judgments, as further explained below. Final judgments were prepared in advance and signed by the judge the day of the hearing, although they were not given to the defendants at that time, even when they were present. They were not usually mailed in a timely fashion to the defendants. This insured that the defendants who had been fooled into agreeing to the summary judgments did not discover the true nature of the order until the hearing was over and the judge and the Stern attorney were effectively beyond reach. It further greatly reduced the possibility of timely motions for rehearing and/or notices of appeal. In summary, in every members foreclosure case there were mailings used in furtherance of the scheme, and fraud was committed by and though the Stern Firm. The differences were minor when evaluated in the context of the RICO law, meaning that whether or not an individual plaintiff could state a claim for a RICO violation is unlikely to be affected by these minor variations in the course of the fraud. RICO stands alone or nearly alone as a cause of action providing an opportunity for meaningful redress. This is because the other available statutory causes of action (e.g., the Fair Debt Collections Practices Act) have very short statutes of limitation,

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and because the persons involved have disguised their identities using MERS to such a degree of effectiveness that the true tortfeasors, who are also the real parties in interest, generally cannot be reached without relying upon allegations of the grand scheme to defraud described herein. SUMMARY OF ARGUMENT The Rooker-Feldman doctrine (RF) does not apply to this case because Plaintiff does not seek review and rejection of the state court judgment, and is not attempting to use this Court as an appellate court. The two cases are not inextricably intertwined because it is the underlying criminal conspiracy which is the proximate cause of the damages of which Plaintiff complains, i.e., the loss of his home; it is not the actual judgment which proximately caused Plaintiffs damages, in that Plaintiff was not divested of his property until expiration of the time for appeal and completion of post-judgment proceedings, including a foreclosure sale, a writ of possession, and issuance of title to the purchaser. Plaintiff did not have a full and fair opportunity to litigate his RICO claim in the foreclosure proceeding - - it was unripe. This is because the damage element of the claim could not be satisfied unless and until Plaintiff incurred legally cognizable damages from the fraudulent activities at issue. The usual preclusion doctrines do not bar Plaintiffs claim because the parties involved in the two cases are not the same, and because Plaintiff could not have stated

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a claim for violation of the RICO act unless and until he was damaged. The litigation privilege does not bar Plaintiffs claims because they are brought in reliance upon a federal statute. Where a federal statute is at issue, state common law doctrines, such as the litigation privilege, are irrelevant. The Fair Debt

Collections Practices Act could easily apply to the actions of the Defendants detailed in the Complaint, and the fact that Floridas litigation privilege has no bearing upon plaintiffs entitlement to recovery under the FDCPA precludes the application of the privilege to Plaintiffs claims in this action. The other arguments made by Defendants also do not justify dismissal of the Complaint. ARGUMENT This cases arises from and relates to a nationwide criminal conspiracy relating to securitization and subprime mortgages. Part and parcel of this scheme is an intentional, organized and systematic assault upon the judicial system and fundamental concepts of American justice, such as due process. As stated in paragraph 39 of the Third Amended Complaint: The conspirators, through this exceptionally sophisticated legerdemain, made over the American judicial systems long-honored requirements for mortgages and foreclosures to serve their own selfish interests and to minimize the possibilities of the victims obtaining any meaningful redress through the courts. They undermined long-established rights and sabotaged the judicial process itself by de-emphasizing the importance of, and eventually eliminating,
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troublesome documentation requirements. (DE 112, p. 12-13). Now, the truth of such allegations has come to be widely recognized. Consider, for example, the following paragraphs from Congressman Alan Graysons October 14, 2010 letter to Robert S. Mueller II, Director of the Federal Bureau of Investigation, which is part of Exhibit I to the Third Amended Complaint: When it comes to foreclosures, there is mounting evidence of a state of rampant lawlessness in Central Florida. There are increasing signs that big banks routinely evade laws meant to protect homeowners, in many welldocumented cases of foreclosure fraud. Despite the demonstrated existence, for instance, of robo-signers signing affidavits attesting to documents that they have never seen, the parties engaging in such conduct are not being brought to justice. Big banks are characterizing this as mere technical problems, and apologizing only where there is clear and very public evidence of harm. It is not enough for big banks only to apologize for fraud, perjury, and even breaking and entering - - when they are caught. It is time for handcuffs. Fraud does not become legal just because a big bank does it. On September 20, 2010 . . . I called for a halt to illegal foreclosures. Since then, big banks such as Bank of America, JP Morgan Chase, GMAC, PNC and others have suspended foreclosures or foreclosure sales. The banks are still claiming that the massive fraud they have perpetrated amounts to nothing more than a series of technical mistakes. This is absurd. This is deliberate, systemic fraud, and it is a crime. Against this backdrop, the district court herein declined jurisdiction in deference to state court judgments born of this systemic fraud by extending the Rooker-Feldman doctrine far beyond its carefully circumscribed domain. Both in terms of the letter

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of the law, and fundamental considerations of justice, this was error. It is extremely difficult to dismiss a claim for lack of subject matter jurisdiction. Garcia v. Copenhaver, Bell & Associates, M.D.s, P.A., 104 F.3d 1256, 1261 (11th Cir. 1997) citing Simanonok v. Simanonok, 787 F.2d 1517, 1519 (11th Cir. 1986). In this case, the dismissal was with prejudice. It is the position of the Plaintiff that the case should not have been dismissed at all, and certainly not with prejudice. While the Defendants/Appellees (hereinafter Defendants) argued for dismissal of Plaintiffs Third Amended Complaint4 on numerous grounds, the January 31, 2011 order of the court below, from which this appeal is taken, (Excerpt C), addressed only one: the Rooker-Feldman doctrine (hereinafter RF). The district court treated the Consolidated Motion to Dismiss Third Amended Complaint (D.E. 162) as a factual attack on subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1), and weighed various factual allegations of the parties in determining that RF applied to bar Plaintiffs claim. Accordingly, the district court found that it lacked subject matter jurisdiction and dismissed the case. In a recent opinion handed down in the case of Dean v. Wells Fargo Home Mortgage, case no. 2:10-cv-564-FtM-29SPC (M.D. Fla., April 21, 2011) the court reviewed the state of the law as it pertains to RF both generally and in the context of The Third Amended Complaint shall be hereinafter referred to simply as the Complaint.
4

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a factual attack under Rule 12(b)(1):: The Rooker-Feldman doctrine makes clear that federal district courts cannot review state court final judgments because that task is reserved for state appellate courts or, as a last resort, the United States Supreme Court. Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009). This is a narrow doctrine, confined to "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. Lance v. Dennis, 126 S. Ct. 1198, 1201 (2006)(quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)); Casale, 558 F.3d at 1260. The Eleventh Circuit has focused on this language as delineating the boundaries of the Rooker-Feldman doctrine. Green v. Jefferson County Comm'n, 563 F.3d 1243, 1249-50 (11th Cir. 2009); Nicholson v. Shafe, 558 F.3d 1266, 1274 (11th Cir. 2009). The Rooker-Feldman doctrine applies when: (1) the party in federal court is the same as the party in state court; (2) the prior state court ruling was a final or conclusive judgment on the merits; (3) the party seeking relief in federal court had a reasonable opportunity to raise its federal claims in the state court proceeding; and (4) the issue before the federal court was either adjudicated by the state court or was inextricably intertwined with the state court's judgment. Parker v. Potter, 368 F. App'x 945, 948 (11th Cir. 2010)(quoting Storck v. City of Coral Springs, 354 F.3d 1307, 1310 n.1 (11th Cir. 2003)). A claim is inextricably intertwined if it would effectively nullify the state court judgment, [] or it succeeds only to the extent that the state court wrongly decided the issues. Casale, 558 F.3d at 12 . . . . Dean, p. 6. Plaintiff believes and intends to establish within this brief that the elements of RF which are underlined in the above passage are not satisfied by the pleadings and evidentiary materials comprising the record as of January 31, 2011, the date of the order presently being appealed. In the subject, 35-page order, the district court concluded, inter alia, the

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Plaintiff was attempting to disguise his true intention; that is, to appeal and effectively reverse the state-courts foreclosure judgment. This is simply untrue. Attempts by trial court judges to look past the pleadings and discern that a plaintiffs hidden intentions require a dismissal of the case pursuant to the already overextended RF doctrine should be proscribed as contrary to the interests of justice and the rules of civil procedure. This is one reason that in most instances motions to dismiss are granted or denied based solely upon the allegations of plaintiffs pleadings. Such a decisionmaking method also extends RF beyond its limited boundaries into the realm of injustice. As stated in American Institutional Partners, LLC v. Fairstar Resources Ltd., 2011 WL 1230074 (D. Del., March 31, 2011): The Rooker-Feldman doctrine, by removing subject matter jurisdiction, prevents district courts from reviewing and rejecting state court decisions in federal actions brought by the party that lost in state court. See Turner v. Crawford Square Apartments III, LP, 449 F.3d 542, 547 (#d Cir. 2006). The scope of this doctrine, however, is very narrow. See id. ([T]he [Supreme] Court . . . has emphasized the narrow scope of the Rooker-Fedlman doctrine, holding that it is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments and inviting district court review and rejection of those judgments. (quoting Exxon Mobil Corp. V. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). In fact, a district court is not divested of subject-matter jurisdiction simply because a party attempts to litigate in federal court a matter previously litigated in state court. Id. 2011 WL 1230074 at *13 (emphasis added). In no sense can the Complaint be seen

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as inviting the district court to review and reject the state court judgment. The only possible argument to the contrary is that if Plaintiff were to recover damages in this action, because those damages in some sense would relate to the value of the property to which the foreclosure judgment pertains, the judgment would be effectively nullified. To this, Plaintiff responds that, if this factor is at all relevant, it bears only upon the third element of RF, complaining of injuries caused by statecourt judgments. But for RF to apply, all four elements must be satisfied. In no way does the fact Plaintiffs damages are calculated with a formula which includes the propertys value relate to the question posed by the fourth element: whether in the Complaint Plaintiff invites review and rejection of the foreclosure judgment. Indeed, because the state courts judgment award no damages, there is not even a question of the RICO damages Plaintiff seeks operating to offset the earlier judgment in a monetary sense. Furthermore, the fact that certain issues are present in both proceedings has no bearing on the RF analysis: The most obvious occasions to apply Rooker-Feldman principles arise in the occasional actions that are expressly framed as attempted appeals from a statecourt judgment to a federal district court. When, as here, additional claims are asserted in the federal forum, the Rooker-Feldman doctrine is no bar, even if the claims contradict a legal conclusion made by the state court. See Exxon Mobil Corp., 544 U.S. at 1527 (If a federal plaintiff presents some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party, then there is jurisdiction and
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state law determines whether the defendant prevails under principles of preclusion.) Id. (Citation omitted)(emphases added). This is exactly the situation in the case at bar. In the Complaint, Plaintiff not only made zero reference to overturning the state court judgment, he presented claims under RICO and allegations concerning the MERS conspiracy that simply were not raised in the state court. Defendants, of course, will likely rejoin that Plaintiff raised the issue of the foreclosure-plaintiff, the then-and-now-defunct Indymac Bank, not having standing to foreclose, and point out that Plaintiff has made the same assertion herein. This provides no legal support for an affirmance of the district courts ruling. As mentioned in Plaintiffs Statement of the Case, above, the district court permitted Plaintiff a final amended pleading in her order of October 14th. (DE 90). The scathing tone of that order seems to be in response to a fairly innocuous and routine attempt by the undersigned to respond to a portion of the Stern Defendants motion to dismiss the Second Amended Complaint wherein counsel characterized the state court action as a garden variety foreclosure. While it is perhaps not the utmost in terms of legal argumentation, it is difficult to comprehend how the following sentence could so aggrieve the court: If the types of foreclosures described in the Second Amended Complaint are garden variety then it is incumbent upon this Court to allow to [sic] Plaintiff every opportunity to plow that garden under and start
30

anew.5 (DE 81, p. 2). In response to this the district court opined that Plaintiff had made a baffling argument by analogy, that Plaintiff is wrong both as a matter of law and agriculture[,] that she would not allow Plaintiff every opportunity to plow some unknown garden, and that After so much replanting, the soil must be left to lie fallow. (DE 90, p.1-2). The court further instructed that, should he choose to file a final amended complaint,Plaintiff should actually state a claim on behalf of the Plaintiff. (DE 90, p. 2). Plaintiff understands that the remedy for such perceived bias, if any, would be in the nature of a motion to recuse, and does not include these matters in this brief as an independent basis upon which this Court should reverse the January 31, 2011 order of dismissal. One subject, however, which should factor in to this Courts analysis, is whether it was proper for the district court to analyze the motion to dismiss under the rubric of Rule 12(b)(1), which allows trial courts to make factual determinations and which removes the presumption of truthfulness which normally

Of course, in light of the present reality that RF has become the primary issue in this case, Plaintiff would not have responded in such fashion because the reference to plowing the garden under could be perceived as suggesting the foreclosure judgments should be overturned. Because neither Plaintiff nor his undersigned counsel had any such intention, the undersigned experienced no consciousness of guilt which would have caused a different response. The Stern motion contained no RF or preclusion-related arguments, and even the trial court did not perceive Plaintiff to be referring to the state-court judgment, as she characterized the garden as unknown.
5

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attaches to a plaintiffs factual allegations in the context of a motion to dismiss. Notably, the Defendants in their consolidated motion to dismiss never took issue with any of Plaintiffs jurisdictional allegations, and did not suggest that the Court should apply any standard other than the usual light most favorable to the plaintiff. Not only did the trial court seem to perceive Plaintiffs filings through an unflattering lens, it also seems to have interpreted the facts in the manner most contrary to his position. Stated another way, even if a neutral view of the facts was the proper standard, it appears that the district court went even further and perceived the facts of record in a manner in the light most favorable to the Defendants. It is the Plaintiffs contention that the district court judge abused her discretion in this regard. The factual findings to which Plaintiff refers relate to the documents from the foreclosure case, which Defendants attached to their motion to dismiss as Exhibit A, (DE 162) and to which Plaintiff lodged no objection. In concluding that Plaintiff had a full and fair opportunity to litigate in state court, the district court spent the last few pages of its ruling expurgating in laborious fashion the truth of Plaintiffs allegation that he suffered a default (by virtue of sewer service) in the foreclosure case. (RE C, p. 33-34.) Based primarily upon the fact that the papers in Exhibit A to the motion to dismiss contained no reference to it, the district court did not credit Plaintiffs allegation of a default. Since this issue

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was not raised by Defendants, Plaintiff was never placed on notice that the truthfulness of his default allegation was in question. Had he been so notified, Plaintiff would simply have filed with the court the default entered by the clerk of the state court on September 16, 2009, and attached to this brief following the service list. Plaintiff asks this Court to consider this document as a proffer. This is one instance in which the court resolved a question of fact by viewing the parties submissions in the light most favorable to the Defendants, and as a result came to an incorrect conclusion which, not only factored in to the adverse ruling, it also falsely cast a negative light on the ethics and truthfulness of Plaintiff and his counsel. This should not have occurred. Additionally, in finding that Plaintiff had a full and fair opportunity to litigate, the trial court included within its decision the following: Three days after summary judgment was entered, Figueroa [and co-owner] Brown filed their emergency motion to vacate the judgment and foreclosure sale. (See id. at 7-12). In that motion they made numerous arguments ----including RICO and fraud allegations. (See id.). Again, no references to improper service or a default judgment appear. (RE C, p. 34) While the court did elsewhere acknowledge no RICO claims were actually made, (RE C, p. 31), in this final portion of the ruling, the court interpreted the facts in a way that was not only tilted in a way benefitting Defendants, but that also was

33

entirely erroneous. Here is the foundation for the courts finding that, essentially, Plaintiff made RICO claims in the foreclosure case: 22. Defendant intends to file affirmative defenses for set off violations of the truth in Lending Act, and a counterclaim for damages for RICO, TILA violations, usury, fraud in the inducement and fraud in the execution, damages for appraisal fraud, quiet title and malicious abuse of process, among other causes of action. Based on this statement of future intentions by a pro se litigant, the district court concluded that Plaintiff had a full and fair opportunity to litigate his RICO claim before the state court. Although the trial court went into detail on the default issue, in the decision no effort whatsoever is made to address the Plaintiffs argument, contained, for example, on page 22 of his response (RE A) that, the issue of any wrongdoers liability under RICO was not ripe for presentation to the court, much less for final adjudication, as Plaintiff, having suffered no damages prior to the entry of final judgment, did not at that time possess a viable RICO claim . . . . In their motion to dismiss which ultimately gave rise to this appeal, the Defendants argued, based upon District of Columbia Court of Appeals v. Feldman, 460 U.S.462 (1983) and Kenmen Engg v. City of Union, 314 F.3d 468 (10th Cir. 2002) that, for the purposes of RF, claims will be found to be inextricably intertwined whenever the state-court judgment caused, actually and proximately,

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the injury for which the federal plaintiff seeks redress. (Emphases by Defendants). (D.E. 162, p. 16.) On this same page of their memorandum in support of their motion to dismiss, the Defendants characterized the claim of Plaintiff thusly: Here, the only injury that Plaintiff alleges is the foreclosure of his property through the state-court final judgment . . . . (D.E. 162, p. 16.) (Emphasis added). There is a distinction between (1) an assertion that a certain occurrence or action was the proximate cause of a deleterious end result and (2) an assertion that the same damaging denouement was brought about through a certain means. This distinction makes a difference. The Defendants own description of Plaintiffs allegations as to the manner in which he suffered compensable injury precludes rather than supports dismissal of the Complaint. The reason this is so may be demonstrated by analogy. Consider John F. Kennedys goal in the early 1960s of putting a man on the moon. In this illustration, JFKs plan is (leaving aside questions of right and wrong) the equivalent of the MERS conspiracy alleged in the Complaint and underlying Plaintiffs RICO claim. The eventual landing of Neil Armstrong on the moon corresponds to Plaintiffs ultimate loss of his property. Of greatest importance to illustration of the desired principle is the final set of correlatives: The Apollo spacecraft and the state-court final judgment. The proximate cause of Mr.

Armstrongs moon landing is not the Apollo craft; instead, the Apollo was the vehicle

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through which JFK and NASA accomplished their objective. The ship was not the cause of the landing; instead, it was the means by which it was accomplished. The proximate cause of the landing was, not the Apollo, but the decision by JFK to put that man on the moon. In like vein, it cannot be concluded that the state court final judgment proximately caused Plaintiff to lose his property. The proximate cause of such loss was instead the MERS conspiracy. Just like the Apollo, the state-court judgment was simply the means to an end. A review of the Complaint establishes that this is what Plaintiff has alleged: 47. Plaintiff was injured in that he lost his one-half interest in his property and home. His injuries were proximately caused by the fraudulent scheme and by the predicate acts of mail fraud detailed hereinabove. Had the Stern Defendants not utilized the mail as alleged in the preceding paragraph, the foreclosure could not have ended in an adverse final judgment. Had Stern not created the fraudulent assignments there could have been no foreclosure. [ . . . ] As the result of the RICO enterprise of which these actions were part, the Class Members have suffered damages, in that they have lost their homes. [ . . . ] As the result of the RICO enterprise of which these actions were part, the Class Members have suffered damages, in that they have lost their homes. Without joining the conspiracy devised by Merscorp, Inc. and its principals, and without having acted overtly in furtherance of the scheme through the wires and U.S. Mail the foreclosure mills and the strawmen-plaintiffs would never have been able to foreclose on the homes owned by the Class Members. [ . . . ]

63.

79.

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69.

Defendant David J. Stern is the owner of Defendant Law Offices of David J. Stern, P.A., among other entities. He is a presently licensed attorney who directed the signing of the assignments by Cheryl Samons and the other "robo-signers" of the Defendant Firm. He is listed in the fraudulent assignments as their author. In or about 1999 he joined the conspirators in the fraudulent scheme and agreed to commit two or more predicate acts in furtherance thereof. He participated in the conduct of the enterprise's affairs by requiring Firm employees to take action in the name of MERS, including the execution of the MERS assignments, and this participation in or conducting of the enterprise's affairs was accomplished through a pattern of racketeering activity, to wit: the use of the mails and wires to transmit such MERS-emblazoned and MERS-enabled documentation to the courts, clerks of court, and others. These actions would only have been taken or caused to occur by Stern because of his awareness of and assent to the goals of the RICO enterprise. There is no purpose other than the conspiratorial one described herein which so well explains the conduct of which Plaintiff complains and which was a vital link in the chain of proximate causation leading to Plaintiffs injury and those suffered by the other class members.

(DE 112, pp. 18, 29-30, 35-36, 37, and 44, respectively)(emphases added). To bring the discussion back to Earth, the test for determining whether two cases are inextricably intertwined is whether the state court final judgment is the actual and proximate cause of the damages for which the federal plaintiff seeks redress. This is the core requirement of RICO. Hoblock v. Albany Cnty. Bd., 422 F.3d 77, 85 (2d Cir. 2005). The allegations set forth by Plaintiff in the Complaint may fairly be characterized as identifying the MERS conspiracy, rather than the state court final judgment, as the proximate cause of his loss. Indeed, it is the defending parties themselves, Plaintiffs opponents in this adversarial proceeding, who
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acknowledge Plaintiff to allege in paragraph 47 of the Complaint that his damages were accomplished through, rather caused by the state court final judgment. The requirements of RF are not met in this case. Plaintiff in no way, shape, or form, calls upon the district court to determine that the Florida state court wrongly decided the foreclosure issue. (Excerpt C, p. 29). Such a finding is simply not an element of Plaintiffs federal, statutory causes of action under RICO. While no case has been found which addresses the viability under RF of a RICO claim involving the conduct of a prior lawsuit in state court, there have been decisions in FDCPA cases which shed light on the subject. Plaintiff is not in uncharted territory when he asserts that his damages arise, not from the state court judgment, but rather from the actions of the opposing party in the litigation giving rise to such judgment. In the case of Carvana v. MFC Financial, Inc., 547 F.Supp.2d 1219 (D. Utah 2008) the plaintiff, after suffering an adverse judgment in a collections action filed in Utah state court, brought suit under the FDCPA in federal district court asserting that because he did not reside in Utah at the time the state court suit was filed, the act of filing the suit was in violation of the FDCPAs venue provision. Id. at 1222. First, the court noted, citing ExxonMobil, that where a federal plaintiff presents an independent claim, albeit one that denies a legal conclusion that a state

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court has reached in a case to which he was a party . . ., then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion. 547 F.Supp.2d at 1224. In concluding that RF was inapplicable, the Carvana court reasoned that: the injury alleged by Carvana in his FDCPA venue provision violation claim did not arise from the state court judgment, but instead arose from the practices defendants employed in collecting the underlying debt. Simply put, [the] claim issues no invitation to this court to overturn prior state court judgments. See Bolden v. City of Topeka, 441 F.3d 1129, 1143-44 (10th Cir. 2006)(describing the cases giving rise to Rooker-Feldman doctrine as sharing the same characteristic: loser in state court invites federal district court to overturn state court judgments. This holding is accordant with other court rulings issued after the Exxon Mobil decision, in which courts have determined that the Rooker-Feldman doctrine does not apply to cases in which creditors (or debt collectors) obtain a judgment in state court but have their collection practices challenged in federal court under the FDCPA. 547 F.Supp.2d at 1225. The court proceeded to cite several cases, including McCammon v. Bibler, Newman, & Reynolds, P.A., 493 F.Supp.2d 1166, 1171 (D. Kan 2007) which concluded that the Rooker-Feldman doctrine did not bar the plaintiffs claims because the plaintiffs FDCPA claim was a challenge to the debt collection practices [the defendant] utilized in obtaining the default judgment and not the validity of the default judgment itself. The same can be said for the Plaintiff in this case. Supporting Plaintiffs position even more strongly is the case of Weldon v.
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Asset Acceptance, LLC, case no. 1:10-cv-0660-JMS-MJD (D. Indiana, March 14, 2011). In Weldon, the plaintiff brought suit against the defendants after suffering an adverse judgment in state court. Plaintiff claimed that the defendants violated the FDCPA by bringing suit to collect the debt after the expiration of the statute of limitations. In a motion to vacate the initial award, which came about through arbitration, Weldon raised the issue of the statute of limitations, that he was not served, and that Asset Acceptance, LLC was not a valid assignee of the debt. The state court denied Weldons motions and entered judgment confirming the arbitration award against him. The judgment was confirmed on appeal. Weldon then brought an FDCPA claim in federal district court, wherein he alleged that defendants violated the FDCPA by taking legal action against him on allegedly time-barred debt. (P. 2). The defendants moved for dismissal, relying on, inter alia, RF and res judicata. The district court denied the motion and in doing so described the Supreme Court as having again emphasized the narrow ground occupied by Rooker-Feldman in Skinner v. Switzer, 562 U.S. ______ (March 7, 2011), and recited the following passage from Skinner: It is not an impediment to the exercise of federal jurisdiction that the same or a related question was earlier aired between the parties in state court. The court ruled that RF did not preclude federal jurisdiction and denied the

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defendants motion to dismiss. In doing so it held that the claims were not inextricably intertwined [b]ecause Mr. Welsons FDCPA claim has nothing to do with the validity of the underlying debt. (P. 5-6). The court decided that the plaintiff present[ed] an independent claim for an FDCPA violation based upon the Defendants method of collecting the allegedly time-barred debt, regardless of the outcome of the underlying debt collection action. (P. 5). The exact same analysis is appropriate in this case, and results in the same conclusion: RF does not apply, and the federal district court has jurisdiction. Yet another reason Plaintiff did not have a full and fair opportunity to litigate his RICO claim in the foreclosure case is that the viability of any appeal was severely curtailed by the fraudulent documentation filed with the clerk of the courts and introduced into evidence in support of summary judgment in favor of the foreclosure plaintiff. In the case of Aboyade-Cole Bey v. BankAtlantic, 2010 WL 3069102 (M.D. Fla., August 2, 2010), relied upon by the Defendants, a pro se litigant brought an action against BankAtlantic raising non-federal claims arising from or relating to: (1) her mortgage, a (2) separate foreclosure action brought against her by BankAtlantic, and her (3) Chapter 13 bankruptcy filing. The pro se plaintiff failed to assert in her complaint that federal question jurisdiction existed or that she resided in any state

41

other than Florida. The court characterized the plaintiffs pleading as confusing and shot through with sovereign-citizen gibberish. The court held that Because Bey has not asserted, either in the re-filed complaint or in the response to the motion, that she was a citizen of Illinois at the time she filed this suit, diversity jurisdiction does not exist . . . . The court also held that the court did not possess federal question jurisdiction. At the conclusion of the decision, the court, in dicta wrote that even if this court were to possess diversity or federal question jurisdiction over this dispute the Rooker-Feldman doctrine would bar any effort to undo or reconsider the foreclosure. (Emphasis added.) Because its reference to Rooker-Feldman is dicta, Bey is not binding authority on this point. Furthermore, even were the Rooker-Feldman portion of the decision part of the courts holding, rather than dicta, the case should not be construed as controlling because of the fact that the plaintiff in Bey was, as with many of the cases the Defendants cite in their omnibus motion, attempting to litigate these sophisticated doctrines without qualified counsel to make arguments and present to the court legal authorities which supported her position. In the case of Brown v. R.J. Reynolds Tobacco Company, 611 F.3d 1424 (11th Cir. 2010), plaintiffs brought a class action against the well-known tobacco company, alleging that they had suffered damages from smoking. The Eleventh Circuit in

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Brown performed a thoughtful review of the state of the Rooker-Feldman doctrine following ExxonMobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 U.S., 125 S.Ct 1517 (2005). In Brown this Court first noted that ExxonMobil had narrowed the application of the doctrine. It cited Casale v. Tillman, 588 F.3d 1258, 1261 (11th Cir. 2009) for its holding that The Supreme Courts recent Rooker-Feldman decisions have noted the narrowness of the rule. Beginning on page 1437 this Court in Brown was extremely explicit about the effect of ExxonMobil and reaffirmed that it would strictly comply with the limitations imposed upon RF by the Supreme Court: In Exxon Mobil the court could scarcely have been clearer in stating that the Rooker-Feldman doctrine is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. We will not ignore the Supreme Courts instruction and apply the doctrine to a case like this one where the federal plaintiff is not the state-court loser and is not seeking review and rejection of a state court judgment. The Rooker-Feldman doctrine is inapplicable here. In place of it, ordinary preclusion rules govern the effect of the [findings of the Florida Supreme Court] . . . . Rooker-Feldman does not otherwise override or supplant preclusion doctrine . . . . (Citations omitted). Having ruled that the narrowing language written into the doctrine by the United States Supreme Court in Exxon Mobil precluded the district court from relying upon RF to support its order disallowing alteration of the Florida Supreme Courts prior decision, the Brown court proceeded to discuss res judicata and collateral
43

estoppel, which are also known collectively as preclusion doctrine. The court described claim preclusion, a/k/a res judicata, as bar[ring] a subsequent action between the same parties on the same cause of action. There are varying definitions of the term cause of action. It is commonly used to refer to the legal theory under which a party asserts entitlement to damages or equitable relief, e.g., breach of fiduciary duty, battery, or defamation. Under that definition the cause of action in each case are very different, since in the statecourt case the cause of action was one for foreclosure, and in this case Plaintiff has set forth a cause of action for violation of the RICO law and conspiracy to so violate. Perhaps more well-informed is the use of the term cause of action to refer to the fact pattern which gives rise to a claim, regardless of the legal theory alleged. For example, a common cause of action in this sense would be I was rear-ended at a stop sign on July 4th of this year. Such as cause of action, by this understanding of the term, could then give rise to a lawsuit in which the legal theory alleged would be negligence or strict liability. However one interprets cause of action, it is different in the two cases at issue here. Under the second definition of the term, the cause of action in the first suit was the alleged default on the terms of the note and mortgage by Plaintiffs co-owner, Timothy Brown. Now, the cause of action in this sense is the procurement of the final judgment of foreclosure in favor of an entity

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having no standing by means of fraudulent documentation submitted to the trial court. The present cause of action, in either sense, did not exist during the pendency of the state-court proceeding, and therefore could not have been, and was not, presented in that proceeding. The Brown court continued to discuss claim preclusion,

citing State v. McBride, 848 So. 2d 287, 290 (Fla. 2003); Pumo v. Pumo, 405 So. 2d 224, 226 (Fla. 3d DCA 1981) (Under the doctrine of res judicata, a final judgment or decree on the merits by a court of competent jurisdiction constitutes an absolute bar to a subsequent suit on the same cause of action and is conclusive of all issues which were raised or could have been raised in the action.); and Seaboard Coast Line R.R. Co. v. Indus. Contracting Co., 260 So. 2d 860, 862 (Fla. 4th DCA 1972) (same). Res judicata or claim preclusion will bar a subsequent claim when all four of the following conditions are present: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of quality in persons for or against whom claim is made. Id. In addition to not satisfying the third or fourth elements, the present circumstance also fails to satisfy element number one, identity of the thing sued for. In the state-court action, a strawman plaintiff brought suit against Plaintiff and others - - by virtue of the fact that it was an action to foreclose, the thing sued for was Plaintiffs residence and property. Plaintiff makes no effort in this case to regain his house or appurtenances. Instead,

45

he is suing for damages which are multiplied by three by operation of a federal statute never having been referenced in the state action. While as to other aspects of preclusion doctrine, the form of the relief sought is not dispositive, as to the first element of res judicata, it simply defies credulity to assert that in each case the thing sued for is identical. Next, the Brown court surveyed issue preclusion, a/k/a collateral estoppel, under Florida law: Issue preclusion, by contrast, operates more narrowly to prevent re-litigation of issues that have already been decided between the parties in an earlier lawsuit. See Mortg. Elec. Registration Sys., Inc. v. Badra, 991 So. 2d 1037, 1039 (Fla. 4th DCA 2008) (stating that issue preclusion precludes re-litigating an issue where the same issue has been fully litigated by the same parties or their privies, and a final decision has been rendered by a court) ... the essential elements of issue preclusion under Florida law are that the parties and issues be identical, and that the particular matter be fully litigated and determined in a contest which results in a final decision of a court of competent jurisdiction. . . . for the doctrine of collateral estoppel to apply, an identical issue must be presented in a prior proceeding; the issue must have been a critical and necessary part of the prior determination; there must have been a full and fair opportunity to litigate that issue; the parties in the two proceedings must be identical; and the issues must have been actually litigated.

46

Issue preclusion does not apply to this case because the parties involved are not the same in the two proceedings, the issue of the nationwide criminal scheme personified by MERS was not raised, as it was totally unknown to Plaintiff because of the conspirators successful concealment of the criminal nature of their activities; there could not have been, and was not, a full and fair opportunity to litigate the wrongfulness of the Stern Firms conduct, or that of any other participant on the scheme, inasmuch as it was actively concealed and the court appears to have been deceived by the fabricated documents and the representations of counsel; and the issue of any of the wrongdoers liability under RICO was not ripe for presentation to the Court, much less for final adjudication, as Plaintiff, having suffered no damages prior to the entry of final judgment, did not at that time possess a viable RICO claim, as he had sustained no actual damages. The Brown court, much as it did with Rooker-Feldman, emphasized the narrow scope of issue preclusion by stating the following; if there is any doubt as to whether a litigant has had his day in court such doubt must be resolved in favor of the full consideration of the substantive issues of the litigation . . . . The court cited Chandler v. Chandler, 226 So. 2d 697, 699 (Fla. 4th DCA 1969) and characterized it as noting that in collateral estoppel the precise fact or every point and question on the issue must have been decided. Indeed, preclusive effect is not given to issues

47

which could have, but may not have, been decided in an earlier lawsuit between the parties. See also Acadia Partners, L.P. v. Tompkins, 673 So. 2d 487, 488-89 (Fla. 5th DCA 1996), which the Brown court described as holding that jurys verdict for the defendant in a breach of contract action did not establish the absence of breach because the jury was instructed that it could find for the defendant if it concluded that the defendant had not breached the contract or if the defendant proved an affirmative defense. In another case cited in Brown the court held that it is impossible to ascertain with any reasonable degree of certainty as to what issue was adjudicated in the former suit except to say that the jury found in favor of the defendant. Such uncertainty as to the effect of the prior adjudication renders the doctrine of collateral estoppel inapplicable. Seaboard, 260 So. 2d at 864-65. Additionally, there is authority for the proposition that even where the elements of collateral estoppel appear to be in place, it will not be applied to bar a prospective claim where other circumstances would make such application unjust. Restatement, 2d, of Judgments (1982), cited in Richardson v. Miller, 101 F.3d 365 (11th Cir. 1996)(applying South Carolina law). As to Rooker-Feldman and the preclusion doctrines, the case of Nicholson v. Shafe, 558 F.3d 1266 (11th Cir. 2009) cannot be ignored. Nicholson provides a complete, recent, and binding exposition on these topics, and the conclusions the

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Eleventh Circuit reached therein militate strongly against the granting of the motion on these grounds. The following principles of law are found within the text of the Nicholson decision: The essence of the Rooker-Feldman doctrine is that lower federal courts are precluded from exercising appellate jurisdiction over final state court judgments; The trial court erred because it exceeded the scope of the RookerFeldman doctrine as clarified in Exxon Mobil by dismissing the plaintiffs claim; The Supreme Court stated in Exxon Mobil that the Rooker-Feldman doctrine has sometimes been construed to extend far beyond the contours of the Rooker and Feldman cases and it is to be confined to cases of the kind from which the doctrine acquired its name; Before Rooker-Feldman can apply the court must, inter alia, conclude that the party seeking relief in federal court had a reasonable opportunity to raise its federal claims in the state court proceeding; Rooker-Feldman does not prohibit a district court from exercising subject matter jurisdiction simply because a party attempts to litigate in federal court a matter previously litigated in state court; The circumstances in which Rooker-Feldman precludes the exercise of jurisdiction by a federal court are limited; The Supreme Courts holding in ExxonMobil was unanimous and constituted a warning to the lower courts about extending RookerFeldman far beyond the contours of the Rooker and Feldman Cases. Even a year after Exxon Mobil the Supreme Court referred to RookerFeldman as a limited doctrine in the case of Lance, 546 U.S. at 464; Since Feldman, the Supreme Court has never applied the doctrine to
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dismiss an action for want of jurisdiction; Clearly, this Courts jurisprudence in the years following ExxonMobil does not favor Defendants position. The Litigation Privilege is Inapplicable Beginning on page 60 of their motion to dismiss, the Defendants argue that the Complaint must be dismissed based upon the litigation privilege. In support of this proposition Defendants cite, inter alia, to Levin, Middlebrooks, Mabie, etc. v. US Fire Insurance Co., 639 So.2d 606 (Fla. 1994). The litigation privilege is inapplicable to federal claims. At least one Florida circuit court has concluded that the use of false assignments and affidavits in a foreclosure proceeding is actionable and not subject to dismissal by operation of the litigation privilege. GMAC Mortgage LLC v. Gasque, Fla. Cir. Ct., 4th Circuit, case no. 16-2008-ca-012971 (September 2, 2010). (Supplement B). In support of its holding, the court in Gasque recited the portion of the Levin case in which the Supreme Court instructed that absolute immunity arises only upon the doing of any act required or permitted by law in the due course of the judicial proceedings. (Emphasis added). The Gasque court went on to hold that it is clear the Florida litigation privilege does not bar . . . federal claims under the Fair Debt Collection Practices Act. Because an assignment is not generally an act required by litigation, the Gasque court rejected in its entirety the argument

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advanced by the counter-defendants (including the Stern firm) that the litigation privilege barred the homeowners claim. It held that even the state law claims would not be dismissed. Creating false documents whether assignments or affidavit[s] are not conclusively covered by the litigation privilege. Id. As referenced in Gasque, federal causes of action are not barred by Floridas litigation privilege. While there is a policy which justifies the provision of absolute immunity to participants for actions they make take in the course of judicial proceedings, there are circumstances in which one or more countervailing and even more compelling policy considerations require the opposite result. It is universally recognized that state common-law doctrines will not operate to obstruct a plaintiffs entitlement to a federal remedy. Attorneys are not exempt from the concept of equality under the law. While the caselaw is sparse on the subject of whether the litigation privilege applies to other federal causes of action, in the context of the Fair Debt Collections Practices Act, the inapplicability of this common-law doctrine is well-established. See, e.g., Sayyed v. Wolpoff & Abramson, 485 F.3d 226 (4th Cir. 2007). The FDCPA actions in which these decisions refusing to apply the litigation privilege are sufficiently similar to this case to support the conclusion that the same result should obtain. In both instances the relationship involved is that of debt collector to debtor, and the events giving rise to the cause of

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action center around litigation brought by the debt collector against the debtor. Congress enacted the FDCPA to rein in abusive collection practices, and the actions of the Stern Defendants could fairly be characterized as abusive collection practices, among other wrongful and illegal acts. Beginning with Heintz v. Jenkins, 514 U.S. 291 (1995) the law of the land has been that attorneys who regularly engage in the collection of debts can be held liable under the FDPA for, inter alia, misrepresenting the character or status of a debt - - even where the subject actions were taken in the course of a judicial proceeding. It is also true that attorneys can be arrested and convicted of one or more federal crimes based upon their actions in the course of a judicial proceeding. In the case of U.S. v. Cueto, 151 F.3d 620 (7th Cir. 1998) the criminal conviction of the attorney- defendant for obstruction of justice as prohibited by 18 U.S.C. 1503 was upheld. In articulating the basis for its decision to uphold the conviction, the court of appeals set forth legal principles which are equally instructive in the context of the instant case. Defendant Cueto was convicted on count 2 of the indictment, which charged that he had corruptly endeavored to influence the due administration of justice . . . by filing or causing to be filed pleadings in connection with the proceedings in federal district court, an appellate brief in this court, and a petition for certiorari to the

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United States Supreme Court. Section 1503's omnibus provision, according to the court in Cueto, is a catch-all which was intended to ensure that criminals could not circumvent the statutes purpose by devising novel and creative schemes that would interfere with the administration of justice but would nonetheless fall outside the scope of 1503's express prohibitions. Id. (Citation omitted). In addition to asserting that the litigation privilege immunizes them from liability for their actions in the course of judicial proceedings, the Stern Defendants assert that the mailing of documents in litigation is entirely legal and hence cannot constitute a RICO predicate act. In a number of respects, the Cueto decision puts these arguments to rest: Otherwise lawful conduct, even acts undertaken by an attorney in the course of representing a client, can transgress 1503 if employed with the corrupt intent to accomplish what the statute forbids. [ . . . ] [M]eans, though lawful in themselves, can cross the line of illegality if (i) employed with a corrupt motive, (ii) to hinder the due administration of justice, so long as (iii) the means have the capacity to obstruct. [ . . . ] Even though courts may be hesitant, with good reason and caution, to include traditional litigation-related conduct within the scope of 1503, the omnibus clause has been interpreted broadly in accordance with congressional intent to promote the due administration of justice and to prevent the miscarriage of justice . . . .

Also bearing upon the instant case is the Cueto courts response to the brief of amici, in which it was asserted that holding attorneys liable for litigation-related conduct could have a chilling effect on lawyers willingness to vigorously represent their

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clients. This is similar to the policy concerns recited in the Florida cases describing the litigation privilege. The 7th Circuit in Cueto astutely pointed out that, although this policy makes sense, there is a flipside. If lawyers are not punished for their . . . corrupt endeavors to manipulate the administration of justice, the result [will] be the same: the weakening of an ethical, adversarial system and the undermining of the just administration of the law. In Fridovich v. Fridovich, 598 So.2d 65 (Fla. 1992) the Supreme Court of Florida reviewed a case in which a family member accused of murder was arrested and tried for the alleged crime based upon a conspiracy between his other family members to influence law enforcement authorities against him. In Fridovich, which was cited in Levin, supra, the court described the fundamental reason that the absolute privilege sometimes afforded to participants in litigation must be discarded in occasions in which such competing policy is served by refusing to apply the privilege. [T]he complaint alleges that the conspirators actually purchase a stress analyzer to determine which family member could lie most convincingly to the police. Such carefully orchestrated plots to do harm are not likely protected under the umbrella of absolute immunity. Indeed, an absolute privilege would frustrate the principle that the courts should be open to redress every wrong. 598 So.2d at 68-69. Swiatkowski v. Citibank

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In Swiatkowski v. Citibank, etc., case no. 10-CV-114(E.D.N.Y, October 7, 2010), District Judge Bianco was called upon to determine whether the plaintiff would be permitted to pursue her well-worn claims that fraud had been committed against her in the referring of her mortgage debt to Citibanks foreclosure unit and in the proceedings which occurred after the dispute began in earnest in 2002. In contrast with the Plaintiff herein, who is at the present time prosecuting his first lawsuit of any type relating to the loss of his home in foreclosure, Ms. Swiatkowski along with her husband and co-resident brought a series of legal actions concerning the same factual array (with minor exceptions) as the case in which Judge Bianco entered the decision under discussion. If one includes two or three notices of removal from state to federal court which Ms. Swiatkowski filed, the instant complaint was the fifteenth action brought by the plaintiff and cohorts - - all of which were based, with minor exception, on the exact same nucleus of operative fact. Further differentiating Swiatkowski from the case presently before this Court is the fact that the plaintiff in Swiatkowski had no legal representation and was attempting to proceed pro se as a plaintiff in federal district court while being opposed by counsel. This is typical of many of the cases relied upon by the Defendants herein and it would be inequitable to treat these decisions entered against these pro se litigants as binding precedent, especially where the facts of the matters are so different from one another as is the

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case presently. Prior to the decision in Swiatkowski the plaintiff had been dismissed from federal court on at least one prior occasion based upon the Rooker-Feldman doctrine. Miss Swiatkowski in a prior federal action, which she appealed and lost via ruling of the second circuit entered in 2005, had sued the New York State Supreme Court Justice presiding over the foreclosure action, the attorneys for Citibank, the Governor of the New York and the states Attorney General, as well as various employees of Citibank. In the case before the court plaintiff alleged that she had suffered heart attack failures as the result of the actions of those against whom she brought suit. Shortly after the case was filed, Miss Swiatkowski moved for a temporary restraining order and preliminary injunction against the defendants to prevent the impending foreclosure on her home. The court, in reaching the decision that Rooker-Feldman and ordinary preclusion principles operated to bar her claim, relied heavily on second circuit precedent. The court determined that it was abundantly clear that the whole purpose of this action is to stop and undo the foreclosure judgment. In fact, after filing this lawsuit, plaintiff immediately made a motion to enjoin the foreclosure, thus proving the point that Rooker-Feldman clearly applies. While the court in Swiatkowski cited to second circuit cases and district court

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cases which tended to limit the application of the rule that the person against whom preclusion is sought must have had a full and fair opportunity to raise and litigate their claim, and though the court engaged in an expansive reading of the requirement reiterated in Exxon Mobil and again in the eleventh circuit case of Brown cited elsewhere in this brief that in order for Rooker-Feldman to apply the party against whom it is asserted must have, in bringing the challenged action, invited district court to review and reject the state court judgment, in other respects he was careful with the use of words. Clearly, Judge Bianco was attempting to insure that in rendering his decision he did not paint with too broad of a brush. Throughout the lengthy decision, whenever Judge Bianco made reference to his conclusion that the suit was barred by Rooker-Feldman he used the phrase to the extent that she seeks to challenge the state court judgment immediately beforehand. It is axiomatic that on appeal, the only matters which may be presented by the appellant are those which are presented to the trial court. There is meaningful distinction between an appeal and its functional equivalent: a situation in which a complaint is filed in federal court inviting review and rejection of the state court judgment, and a case such as the one brought by the Plaintiff herein, in which the Complaint may reasonably be interpreted, not as a quarrel with the reasoning or decision of the circuit court judge (no trial occurred, so the term trial court is

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inapposite) but seeking redress from the persons who sabotaged the outcome of the process by engaging in wholesale perjury, forgery and fraud. To use a trite phrase, the concept here is garbage in, garbage out. An appeal will not succeed if the trial court made the proper ruling based upon the evidence presented to it. In this case no one was aware that the evidence presented was not what it appeared to be. Similarly, at the time of the entry of the final judgment in the state court case, no one had any knowledge of the massive conspiracy which is becoming more and more well defined and undisputable on a daily basis as events transpire. It would not have been believed. Reading the allegations of the complaint in the light most favorable to the Plaintiff, he alleges, not error by the state court judge so as to give rise to a meritorious appeal; instead, what plaintiff alleges is a complete and total subversion of the judicial process which was unknown to the trial judge, to the plaintiff, or indeed to any person other than those who were acting in furtherance of this scheme, including the Stern Firm attorney who represented the plaintiff.6 In this and many other ways, the present situation is far different than that recounted in the Swiatkowski decision.

Defendants point out that Plaintiff has not sued IndyMac Bank, the named Plaintiff in the foreclosure case. IndyMac Bank was dissolved by the FDIC and/or the Office of Thrift Supervision well prior to the filing of this case. Erica Johnson-Seck is a robo-signer discussed extensively in the Report (Exhibit 2), and she signed the fraudulent documents filed in Plaintiffs foreclosure. OneWest Bank, which is apparently the successor to IndyMac, is the sole institution ordered to show cause in New Jersey which is not a Defendant herein. (Exhibit 3).
6

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While it is not unreasonable to read Swiatkowski as favoring the Defendants, another, more recent decision is far more on point and it resoundingly supports the Plaintiffs position. In Sykes v. Mel Harris & Assoc. LLC, Case No. 09CIV8486(DC) (S.D.N.Y 12/29/10), which is included with the Record Excerpts (Supplement A), the court, in a 31-page order, in all respects bearing upon the case at bar, denied the defendants motions to dismiss the proposed class action complaint, which alleged entitlement to compensation pursuant to the FDCPA and RICO. Defendants made the same arguments, essentially, the Defendants set forth in the Motion now before the Court, and the court rejected those arguments. The plaintiffs in Sykes alleged that a debt buying company, a law firm, a process server and associates engaged in a massive scheme to fraudulently obtain default judgments against persons with credit card debt. The defendants primary means of accomplishing their alleged scheme was to utilize a tactic present in this fact pattern: sewer service. In regard to the practices of the Stern Firm, Tammie Kapusta and Kelly Scott admitted in their depositions given during the AGs investigation (Exhibits 1 and 4, respectively) that sewer service was, in essence, standard procedure, in particular with regard to the creation and backdating of perjured affidavits of service. Plaintiffs in

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this Sykes case allege that the defendants filed false affidavits with the court in order to fraudulently obtain judgments against them. The defendants moved for dismissal of the plaintiffs RICO claim: they challenged subject-matter jurisdiction and asserted that the claims were barred by operation of the litigation privilege, Rooker-Feldman, collateral estoppel and res judicata. It was also alleged by the plaintiffs, just like it is in the instant case, that affidavits were created, executed and filed attesting to the indebtedness of the victims, despite the fact that the person signing the affidavits had absolutely no personal knowledge of the amount or existence of the alleged indebtedness. The court reiterated the principle that Rooker-Feldman applies only if, inter alia, a plaintiff invites a district court to review and reject an adverse statecourt judgment. The court ruled that, this argument fails, as plaintiffs assert claims independent of the state-court judgments and do not seek to overturn them.7 Such is the case here.

The court went on to state that all plaintiffs had previously gotten their default final judgments vacated by the state courts. But it is the portion quoted above that seems to form the essence of the courts determination on the RookerFeldman doctrine.
7

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CONCLUSION For the above and foregoing reasons, the district courts order must be reversed, with instruction to the district court.

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CERTIFICATE OF COMPLIANCE I certify that this brief complies with the length and typeface limitations contained in Fed. R. App. P. 32(a)(5) and (a)(7). This brief contains 14,938 words, including those portions which do not count toward the word-count limitation. It is typed in Times New Roman 14-font.

/s/Kenneth Eric Trent

CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing, as well as a copy of the Record Excerpts, was served upon each attorney in the following service list by U.S. Mail on this 25th day of April, 2011. KENNETH ERIC TRENT, P.A. 831 East Oakland Park Blvd. Fort Lauderdale, FL 33334 (954)567-5877; (954)567-5872 trentlawoffice@yahoo.com

By: /s/ Kenneth Eric Trent Fla. Bar No. 693601

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Service List

Andrew Benjamin Boese, Esq. Morgan Lewis & Bockius LLP 200 S. Biscayne Blvd. Ste. 5300 Miami, Fl. 33131

Robert M. Brochin, Esq. Morgan Lewis & Bockius LLP 200 S. Biscayne Blvd. Ste. 5300 Miami, Fl. 33131

Spencer Allen Tew, Esq. Tew Cardenas LLP 1441 Brickell Ave. Ste. 1500 Miami, Fl. 33131

Bryan Thomas West, Esq. Tew Cardenas LLP 1441 Brickell Ave. Ste.1500 Miami, Fl. 33131

Christi R. Adams, Esq. Foley & Lardner 111 N. Orange Ave. Ste. 1800 Orlando, Fl 32801

Graham Allen, Jr., Esq. Rogers Towers, P.A. 1301 Riverplace Blvd. Ste. 1500 Jacksonville, Fl. 32207

R. Bruce Allensworth, Esq. Kirkpatrick & Lockhart Preston Gates Ellis, LLP One Lincoln Street Boston, MA 02111

Nelson Camilo Bellido, Esq. Concepcion Martinez & Bellido 255 Argon Ave Floor 2 Coral Gables, Fl. 33134

Gregory N. Blas, Esq. Kirkpatrick & Lockhart Preston Gates Ellis, LLP One Lincoln Street Boston, Ma 02111

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Bruce Braverman, Esq. Sidley & Austin, LLP One South Dearborn Street Chicago, IL 60603

William Bard Brockman, Esq. Bryan Cave LLP 1201 West Peachtree Street NW Floor 14 Atlanta, GA 30309

Dennis Michael Campbell, Esq. Campbell Law Firm, PLLC 95 Merrick Way Ste. 514 Coral Gables, Fl. 33134

Brian M. Forbes, Esq. Kirkpatrick & Lockhart Preston Gates Ellis, LLP One Lincoln Street Boston, Ma 02111

Robert G. Fracasso, Jr., Esq. Shutts & Bowen LLP 201 S. Biscayne Blvd. Ste. 1500 Miami, Fl 33131

Juan A. Gonzalez, Esq. Liebler, Gonzalez & Portuondo, P.A. 44 West Flagler Street Floor 25 Miami, Fl 33130

P aul F. H ancock, Esq. K & L G ates W achovia Financial C enter 200 S . B iscayne B lvd M iam i, Fl. 33131

Thomas M. Hefferon, Esq. Goodwin, Proctor LLP 901 New York Ave NW Washington, DC 20001

William Patrick Heller, Esq. Ackerman Senterfitt LLP 350 East Las Olas Blvd Ste 1600 Fort Lauderdale, Fl. 33301

Gary L. Howard, Esq. Bradley Arant Boult Cummings LLP 1819 Fifth Avenue North Birmingham, AL 35203

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Robert H. Iseman, Esq. Foley & Lardner LLP Two S. Biscayne Blvd. Ste 1900 Miami, Fl. 33131

Jason D. Joffe, Esq. Squire Sanders & Dempsey LLP 777 S. Flagler Dr. Ste 1900W West Palm Beach, Fl. 33401

Todd S. Kartchner, Esq. Fennemore Craig, P.C. 3003 North Central Ave Ste 2600 Phoenix, AZ 85012

Gerard Kelly, Esq. Sidley & Austin, LLP One South Dearborn Street Chicago, IL 60603

Lawrence Brett Lambert, Esq. Lash & Goldbert, LLP 100 SE Second Street Ste 1200 Miami, Fl. 33131

Alan D. Lash, Esq. Lash & Goldberg, LLP 100 SE Second Street Ste. 1200 Miami, FL 33131

Paula Levy, Esq. Rothman & Tobin, Esq. 11900 Biscayne Blvd. Ste 40 North Miami, Fl. 33181

M ichelle Anna M cC laskey, Esq. C larke S ilverglate C am pbell W illiam s & M ontgom ery, P .A . 799 Brickell Plaza Ste 900 M iam i, Fl. 33131

Lucia Nale, Esq. Mayer Brown, LLP 71 South Wacker Drive Chicago, IL 60606

Jill L. Nicholson, Esq. Foley & Lardner, LLP 321 North Clark Street Ste 2800

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Chicago, IL 60654

Thomas V. Panoff, Esq. Mayer Brown LLP 71 South Wacker Drive Chicago, IL 60606

Hector Ralph Rivera, Esq. Quintairos, Prieto, Wood & Boyer, P.A. 9300 S. Dadeland Blvd. Floor 4 Miami, Fl. 33156

Christine M. Russell, Esq. Rogers Towers, PA 1301 Riverplace Blvd. Ste 1500 Jacksonville, Fl. 32207

Mary Leslie Smith, Esq. Foley & Lardner LLP 2 South Biscayne Blvd. Ste 1900 Miami, Fl 33131

Michelle L. Stocker, Esq. Greenberg Traurig LLP 401 East Las Olas Blvd Ste 2000 Fort Lauderdale, Fl. 33301

Danielle J. Szukala, Esq. Burke, Warren, McKay & Serritella 330 North Wabash Ave. Floor 22 Chicago, IL 60611

Louis M. Ursini III, Esq. Adams & Reese, LLP 1515 Ringling Blvd. Ste 700 Sarasota, FL 34236

Alexa Warner, Esq. Sidley & Austin, LLP One South Dearborn Street Chicago, IL 60603

Michael K. Winston, Esq. Carlton Fields, PA 525 Okeechobee Blvd. Ste 1200 West Palm Beach, Fl. 33401

Joseph F. Yenouskas, Esq. Goodwin Proctor LLP

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901 New York Avenue NW Washington, DC 20001 Michael Carpenter, Esq 280 Plaza, Suite 1300 280 N. High Street Columbus, Ohio, 43215

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