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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

PHILLIP L. ADAMCZYK, 

SUSAN C. ADAMCZYK,

Plaintiffs,

vs. Case No. 4:10cv444-RH/WCS

THRIVENT FINANCIAL BANK,

Defendant.

 /

SUPPLEMENTAL REPORT AND RECOMMENDATION

On November 24, 2010, I entered a report and recommendation, doc. 11, to

grant the Defendant's motion to dismiss, doc. 9. I found the pro se Plaintiffs' complaint

was insufficient to assert any claim against the Defendant. Doc. 11.

Plaintiffs then filed a motion for leave to file an amended complaint. Doc. 12. 

Plaintiffs did not simultaneously submit the proposed amended complaint with the

motion as required by N.D. Fla. Loc. R. 15.1, and Defendant raised that point in

response. Doc. 13. On December 14, 2010, Plaintiffs filed the proposed first amended

complaint, doc. 14.

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Rule 15(a) provides that amendment after a responsive pleading has been

served, absent written consent of the adverse party, requires leave of court, but "leave

shall be freely given when justice so requires." FED. R. CIV. P. 15(a). While Rule 15(a)

generally "restricts the district court's freedom," the Eleventh Circuit has held: 

This policy of rule 15(a) in liberally permitting amendments to facilitate

determination of claims on the merits circumscribes the exercise of the

district court's discretion; thus, unless a substantial reason exists to deny

leave to amend, the discretion of the district court is not broad enough to

permit denial.

Shipner v. Eastern Air Lines, Inc., 868 F.2d 401, 407 (11th Cir. 1989). If "underlying

facts or circumstances" provide a proper and viable basis for relief, then leave to amend

“should be freely given.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9

L.Ed.2d 222 (1962). Futility of amendment is sufficient cause under Rule 15 to deny

permission to amend. Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262-1263 (11th

Cir. 2004). When an amended complaint still fails to state a viable claim, it is not an

abuse of discretion to deny a motion to amend. Smith v. Secretary For Dept. of

Corrections, 2007 WL 3089531, *2 (11th Cir., Oct. 24 2007).

I have reviewed Plaintiffs' motion, doc. 12, the response, doc. 13, and the

proposed first amended complaint, doc. 14. The proposed complaint still suffers from

the same defects as noted in the initial complaint. Plaintiffs refer to Defendant, Thrivent

Financial Bank, as lender, broker, and the Defendant. Doc. 14. Plaintiffs entered into a

real estate contract with the Defendant on December 9, 2003, to purchase property in

Bay County, Florida. Id. Plaintiffs' amended complaint contains a section titled

"Violations Alleged" and asserts that Defendant committed various violations of the

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Truth in Lending Act," yet Plaintiffs fail to state what Defendant did that violated the Act

in the process of the real estate purchase. Id., at 3-5. 

Plaintiffs also assert a "first count - fraud," but the amended complaint states only

that "Defendant made proactive statements of fact to Plaintiff giving partial disclosure

Defendant intended that Plaintiff would rely on in making a decision to enter into an

express contract for the purchase of said property." Id., at 5. Plaintiffs fail to provide

any clarification of what was concealed or not disclosed, much less that it was a

"material fact." The broad assertion that makes only a legal conclusion of fraud is not

sufficient. There are simply no facts presented which reveal any fraud.

Plaintiffs make another vague generalization that the loan agreement contained a

modification provision, but they contend they are not aware of any authority who can

authorize a modification, and therefore, the contract is nullified. Doc. 14, p. 6-7. 

Plaintiffs have failed to state a claim on this basis.

Plaintiffs contend that the Current Servicer of the note lacks standing to enforce

the note and "is unable to invoke the subject matter jurisdiction of the court." Id., at 7. 

That is nonsense. Some entity servicing the loan has not sought to invoke the court's

jurisdiction.

Plaintiffs again assert that the Lender charged false fees to Plaintiffs. Doc. 14,

pp. 8-9. Plaintiffs' amended complaint is nearly identical to the allegations presented in

the original complaint concerning the allegedly false fees. Cf. Doc. 1, pp. 12-13, Doc.

14, pp. 8-9. As I found previously, that Plaintiffs may dispute charges and seeks an

accounting of why the charges were reasonable is not sufficient to state a claim for false

fees. 

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Plaintiffs also present an identical claim for RESPA penalties as presented in the

initial complaint. Docs 1, 14. Because the claims were insufficient to show what the

Defendant did to violate the Real Estate Settlement Procedures Act in the initial

complaint, they remain insufficient in the amended complaint. Plaintiff may not simply

list items under violations without some statement showing that this Defendant

committed the violation. See doc. 14, pp. 9-10. 

Plaintiffs claims for breach of fiduciary duties is frivolous. Defendant is alleged to

be a Bank and a Lender. Defendant is not an agent of Plaintiffs nor is there any

allegation identifying a Broker. Id., at 10. That boilerplate language is insufficient to

show that the Defendant breached a particular fiduciary duty owed to Plaintiffs. 

The same deficiency exists as to the claim for negligence. Id., at 11-12. 

Moreover, it is exactly the same statements as were made in the initial complaint. 

Having been found insufficient the first time the statements were reviewed, they remain

insufficient in the amended complaint. The same is true for the claim for common law

fraud. Id., at 12-13. The statements are virtually identical to the initial complaint, with

Plaintiffs merely inserting Defendant instead of Agent. The statements fail to provide

any fact showing what the Defendant did that could be held to constitute legal fraud. 

Plaintiffs' alleged Truth in Lending Act claims are time barred. Plaintiffs entered

into the real estate contract with Defendant on December 9, 2003, which is nearly seven

years prior to initiation of this case (initial complaint filed on October 15, 2010, doc. 1). 

A TILA nondisclosure violation occurs "when the transaction is consummated," which

will be at the time of closing on the residential mortgage. Smith v. Am. Fin. Sys., Inc. (In

re Smith), 737 F.2d 1549, 1552 (11th Cir. 1984). The statute of limitations on a TILA

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claim is just one year. The doctrine of equitable tolling saves a TILA claim only where a

debtor plaintiff has "been prevented from [bringing suit] due to inequitable

circumstances." Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 706-08 (11th Cir.

1998). It is Plaintiffs' burden to show that such circumstances exist. See Arce v.

Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006). Plaintiffs fail to allege any factors that

prevented them from bringing suit in the seven years since entering into the contract

with Defendant.

Because the amended complaint also fails to state a claim upon which relief may

be granted, presenting conclusory assertions and being time barred, the motion to

amended should be denied. 

RECOMMENDATION

In light of the foregoing, it is respectfully RECOMMENDED that Plaintiffs' motion

to amend, doc. 12, be DENIED because amendment is futile. 

IN CHAMBERS at Tallahassee, Florida, on December 22, 2010.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

Case No. 4:10cv444-RH/WCS

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