comprehensible complaint both parties both sides i'll put it that way bank of america and the other defendants move for a more definite statement in a more definite statement they told you they cited to all of the cases of this circuit the govern the sort of pleading you filed they they said we can't respond to the complaint and then they couldn't they couldn't frame a response of pleading you agreed that a more definite statement needed to be filed and you turned around and filed one just as bad as the first one slight change you put it under the heading with the counts you put in brackets a name of the day if i didn't but the body of the of the count included all of the defendants and as a matter of fact you really have one count in the complaint because you incorporated all of the counts into the last so it's an amalgamation so so there we are with sort of a backhanded way re pled your complaint as the magistrate judge saw it and so here we are and you can and you keep bank of america in this case and and you haven't got court first i would say that the bank of america we reached a settlement they're not part of the case but they're in the notice of appeal i know they haven't filed a brief but they're on the notice of appeal you appeal to almost everything you can appeal in this case america you've been practicing twenty five years yes you went to find the alabama law school you bet and in the federal courts a lot and you give us this this is offensive to this court offensive to the district court and to this court you tell us you tell us the basis for bank of america liability i don't recall that we appealed bank of america if the notice well you did what you did where you put them in both complaints and you did complaint and if i'm sure it could have been written better if we sent that complaint back to your law school the professor didn't have a heart attack watch it well judge they would say couldn't be a graduate of the school that file that and not only over again i would just say your honor that we've used the same lawyer complaint and other courts and it has not been a problem well because you got away with it your problem is now you're before a panel that can understand what you've got we have to redraft your complaint for we have to take each count and figure out which the fed is in this count down on the basis of what so there is only one document attached all the whole works and that's the additional mortgage and no we don't have any basis of knowing whether what contractual relationships existed after that that nothing else was there we alleged in the complaint that the mortgage was assigned to s l s and to the bank of new york i don't know how it could be any clearer than that didn't you and i in effect question the validity of the assignment yes and we always do that as you i'm sure with the mortgage cases are very aware that there's always issues of whether they have been properly assigned or not and we have a right under federal law and state law to plead in the alternative and that's what we did and we do it in every case so that you know if and i'm sorry judge you feel this way and you're making a personal attack on me i feel like i'm not making a personal attack on you what i'm telling you is that when i when i wore your files a document that requires a magistrate judge to spend fifty three pages trying to figure out what you allege that's offensive to the system there are people standing in line waiting to be heard down there in a district court and there is no way in the world that the magistrate judge could figure out what you were one two and three and cow sixteen as counsel one through fifty all on one count all in one count and their motions for more definite statement they told you you couldn't do that and you did it you understand the concern in and why the court still views this as a shotgun pleading in every single count you incorporate by reference the allegations in the proceeding count yes i know that that is an issue in federal court and i can tell you that probably merely the reason that is down because they are not disfavored in alabama courts and we used those complaints all of the time it's never been an issue before it is invalid question you'll never do it again i can tell you that and so you think the district court erred and well number one i think they erred because the complaint that we have at the very least raises some allegations particularly breach of contract there was and the complaint it did state that the you know there is a more i mean it's not that hard to figure out there's a mortgage there's a note there's an allegation of a defile out there's an assignment that we challenge and that it had been assigned they don't disagree that it was assigned they don't even argue that what you're what you're breach of contract argument as the breach of contract had to do with the payments and whether there was to follow paragraph twenty two of the mortgage itself allows you to bring an action to challenge to file an exhilaration to raise defenses the alabama supreme court has spoken to this  in a recent case that was my case turner i exported turner from september the first of this year about notice requirements that foreclosures are invalid if they're not directly in line with what paragraph twenty two of and say we don't feel there is a breach of the contract but we also don't believe that these particular parties had the right to bring a foreclosure auction and one of the things that the district court has it basically sa there believe there is a contract he says that i did not talk about the assignments but i did so that's one thing i think that just record if you look at the amended complaint it plainly says that number two if you follow the the district court complaint he says you can't have a wrongful foreclosure because they're following the contract yet he says there's not a contract so you cannot have it both ways either there isn't a contract which would allow us to bring negligence and wantonness claims as well as wrong foreclosure or there is a contract and that and i admit this supreme court has talked about some negligence and wanting that service thing is not applicable anymore that they addressed in their brief but i also attached an order from the same district where i used the same general type complaint with judge theo where he denied motions to dismiss on the very same things so  you know if i think it's pretty plain that they allege there is a contract they foreclose we have a right to challenge it if the district court order stands then they're left with nothing they can't challenge anything there's been a foreclosure that was recorded while the litigation was ongoing and if the district court order stands we also filed to amend the complaint to address the issues and the report which was denied even though the scheduling orders that we had till september second to do that and so for all of those reasons and frankly i don't think the the district court really looked at anything they didn't address anything are i will write a very specific objection detailing wow i thought it was wrong and how we got back was a rubberstamp we've looked at it we don't see that statement here but and there were reasons that i won't get into about negotiations that we were going to agree on certain you know counts to go forward and not have to go through all the rest and we did that with  bank of america we were able to with the other folks so yes i think we should have been given another opportunity to fix it if that was the problem it's not substantive it's procedural and given that you know for and i know that or what's happened in the district courts they can't do all their business and they can stay away from the district court well we found you read i take it that you read every case they cited in the motion for more definite statement yeah you did exactly what those case said don't do and you did it because you said yourself but it's different in alabama of the district courts will accept these pleading you know i didn't what your just told us that fifteen minutes ago i think that it's been accepted in other cases but now to stand up i do read those cases that have told you not to lead the case like you planned it you agree with that but it does talk about the shotgun style you read those opinions as a good lawyer ok and you realize that when you file the more definite statement you did the very same thing that they condemned you doing and the motion for a more definite statement i suppose that's address first a couple of things that my skin colleague talked about he talked about how pleading in the alternative and i think this is important and something to to really focus on because we don't disagree that you are allowed to a plead in the alternative we absolutely agree that you are the problem here is is that while in briefs that were filed and response to a motion to dismiss or on appeal plaintiffs argue that they are pleading in the alternative and that they have the right to plead in the alternative the problem is they did not actually do that in the amended complaint it was dips dismissed below and that's a distinction that matters because when you are deciding on how to their payments on time all the way through to october whatever it was in two thousand and fourteen you rejected the plan the payments and and then turn around and foreclose so th that that's what they allege he led to that as an officer of the court subject to rule eleven that all of the all the payments were made on time and you after why you rejected them and i think that is another reason that you are entirely correct to focus on the fact that this is a shotgun pleading and it's actually falls into multiple categories that this court has talked about and what is a shotgun pleading and you know the first and most common being when you incorporate all prior allegations from all prior counts that is obviously the case here it was the case here and every version of the complaint that was filed including it impossible to decipher to determine which defend it was the one that refused to accept the payment or which defendant refused to properly apply the payment we can't tell this from the complaint itself because it never actually goes into detail to say bank of america as the defendant the refused to accept the payment or s l s is that offended and this is a problem that you know is rampant throughout the pleading and that's why when we got this and we reviewed it we did exactly what this court has said for years it said when you were faced with a shotgun pleading you should move for a more definite statement and that is exactly what we did and in response to that we got an almost identical complaint filed in return it had the exact same problems and in fact was pretty much copy and pasted from the one before with the sole difference being that certain headings you know purported to identify which claims share the defect did not actually cure anything at all the same defects remained but here the magistrate judge did attempt to parse out the claims and in effect address substantively each of the claims and for example with regard to the contract claim the magistrate found that a contract did not lie with bank of new york and s l s and the plaintiff but then with regard to the unjust enrichment the magistrate recommended dismissal of the unjust enrichment claim because it arose out of the contract when the magistrate found that there was no such contract so should the un just in richmond claim properly law i know you are not the way it's currently pled and the problem is is that the amended complaint alleges very clearly that they dispute the validity of the transfer and that takes care of you know some of the reasons that the magistrate judge ruled in terms of the breach of contract claim the problem with the unjust freshman claim and i'll say there are a few one being that and their response brief to the motion to dismiss they did not actually respond to any of the arguments they were made for dismiss the other problem excuse me the other problem is that the unjust enrichment claim it's impossible to tell who this is being asserted against in order to determine whether or not of the fees and insurance proceeds so in fact it it had a had an allegation in the complaint as to s l s is actions and their conduct that's correct your honor c it's been about three to what half years and so and even at that point they were two years behind at that point they're living in the home free i'm and they're still that's correct your honor so far is that appears to be their attention going that this case in our mind has been a an attempt to delay the inevitable for quite some time if you look at if you file a complaint like this that's exactly right your honor and that's one of the quickly this is one of the problems that happens with a shotgun pleading is if you view the allegations of young justin richmond claims it is complete it is entirely based on the mortgage it is it is referencing things that are required to be done under the mortgage and to it behooves me to understand why somebody who does not believe that they have any agreement with an incident would be paying them fees or taxes in just giving them their money and that's one of the problems with a shotgun pleading here is that you have no way of determining which defendant is which and you're left trying to decipher it in trying to look at it and in doing so you just have to take it for what it says and it's based entirely on  that i mention in this case is about delay and i do want to just mention just a few things the loan was originated back in two thousand and six and problems with payments occurred almost immediately in two thousand and fourteen there was all of this is outside the complaint but that's all right yes you are and it's not it's just some background information i am and and so in two thousand and fourteen after you know the loan was two years past due there was a chapter thirteen bankruptcy filing that was ultimately dismissed for failure to make payments and foreclosure you know proceedings began again because obviously that notices the need to be done in that you're saying that the reality is contrary to what the late absolute you're also saying is if that's true what you say in the complying has made some rather dramatic assertions there might be some some issues in terms of sanctions where those kinds of allegations yes your honor and that's something we considered as well and just you know out of abundance of caution and you know attorneys they don't really want to pile things like that and you would  avoid everything and that's another reason that you know instead of moving for dismissal or for sanctions right out of the gate we are going to put this court system you filed a motion for more definite statement and response we got the same thing over and over again scissors out and go through the complaint and throw away the extraneous allegation absolutely your honor which is also one of the evils of shotgun pleading is it you know one of the four types that's been discussed by this court is including  a bunch of irrelevant immaterial or conclusory allegations they kind of muddy the waters and you definitely have that here as well and i'll just close your honour's with respect and if you have any questions i obviously want to address them just to say that you know we did what we thought we were supposed to do here and every step of the way including in the briefs filed on appeal it's been the exact same thing over and over again you can you can look at it and see that these are copied and pasted begum and sometimes moved in a different order sometimes you know one argument is first and another second and vice versa but there's never been a genuine attempt to address the problems that have been going on since this case is filed i will refer you to our briefs and terms of specific additional reasons for this missile we believe there are multiple reasons for dismissal for every claim including your failure to lodge proper objections to the magistrates are in our you know on earlier mike my colleague said that they filed very specific objections we agree and the rest claim objection is if you agree we didn't make a specific objection to every single thing because if we did it would be very long but if you look particularly at the one for the bre contract it's about three pages long and goes in quiet detail so to say that there weren't specific objections made there were particular to the ones that we thought were the most important if you look at the amended complaint and i understand judge your problem with those shotgun pleadings and i'm not going to argue about that do you think the problem still exists with your proposed second amended complaint so we went back and addressed the staff yes it's probably has some issues with this it may have i and i have to go back and look but it could have but you know we can redo it to adhere to that whatever that was a proposed but when you say it here to whatever hearing to whatever would have been following these the court's order granting the motion for a more definite statement correct yes and i guess maybe there was a five day mental misunderstanding about what needed to be done and i apologize but didn't you just tell judge joe flat that you read all of the cases i did i did where was the fundamental misunderstanding well as stated before believe that qualifies as a shotgun pleading i do now know that it does yes i do now today yes i mean i think just based on the discussion that there is an issue with the court with that and i understand that understand our concern it's more than procedural niceties niceties not really the right word for this complying but the name of the game nothing for folks trying to avoid foreclosures d and it we're concerned it's more than an issue than just an issue of competence but that there's some strategic goal to keep following these things they keep mucking up the system and slowing it down because every month you do that your client's in a home for which he's not playing his mortgage and so it's you know it's a troubling issue for us all and i understand that judge but as you're aware and i'm sure you keep up with the news and everything that goes on in the world and you've seen in other cases  here there are cases all over the country with problems with banks doing things and one of the problems that we sat in here if you look at the complaint you know if there's a problem stated clearly let's get to an answer but muddying the waters doesn't get an answer from  so i assume in the alabama district courts i should be filed a lot of like the judge out only said that i have found them in other cases i even attached one to the brief where it has not been an issue in the same district with a different judge all i sad i understand i just wonder how many of you file i will write all of these this out i also know that were not found in federal court they were found in state court and then later removed that's another issue that i don't want the court to believe we just went in and filed this in federal statement which told exactly we will go back over that but obviously made an error and that out i would beg the indulgence of the court and not to punish my flat if it is my file then you know i'm not stupid i get what you're saying today and we can correct it and i won't ever do it again but it was not done with any intention as a matter of fact i went to the defendant to delay i mean i get this in the state court not if this stuff about the payment and i want to make clear to the court there are issues out there and these people have a right to raise these claims and they say it's not true but they stand settlement decrees all the time there are these exact same issues in every district in the nation that there is a problem and they met him but yet every time we get a thing they say oh we don't know what's going on they know what's going on it happens all the time in every case and we i think we planted a method if we didn't it can be fixed if it's just procedural and not s