Madura v. Bac Home Loans Servicing L.P.

Full title: ANDRZEJ MADURA and ANNA DOLINSKA-MADURA, Plaintiffs, v. BAC HOME LOANS…

Court: UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Date published: Jul 17, 2013

Case No.: 8:11-cv-2511-T-33TBM (M.D. Fla. Jul. 17, 2013)

Opinion

Case No.: 8:11-cv-2511-T-33TBM

07-17-2013

ANDRZEJ MADURA and ANNA DOLINSKA-MADURA, Plaintiffs, v. BAC HOME LOANS SERVICING L.P., ET AL., Defendants. BANK OF AMERICA, N.A., Counter-Plaintiff, v. ANDRZE J. MADURA and ANNA DOLINSKA-MADURA, Counter-Defendants. BANK OF AMERICA, N.A., Third Party Plaintiff, v. CIT LOAN CORPORATION, ET AL., Third Party Defendants.

VIRGINIA M. HERNANDEZ COVINGTON

ORDER

This matter comes before the Court pursuant to Bank of America, N.A.'s Motion for Summary Judgment (Doc. # 359) and Statement of Undisputed Facts (Doc. # 360), both filed on December 31, 2012, and Bank of America's Supplement (Doc. # 385), filed on February 8, 2013.¹ Andrzej Madura and Anna Dolinska-Madura, who are proceeding pro se, filed a Response in Opposition to Bank of America's Motion for Summary Judgment (Doc. # 416) on March 26, 2013. The Maduras also filed their "Rule 56(d)(2) Verified Declaration that due to Incompleted Discovery; the Bank's Refusal to Test the Age of its Allonge and Hiding the Acctual Loan Owner they may not Present Facts Essential to Justify Fully Opposition to Bank's Standing upon said Allonge in Response to the Bank's Motion for Summary Final Judgment (Doc. # 359)" on January 11, 2013. (Doc. # 381).

1 Effective July 1, 2011, BAC merged with and into Bank of America, N.A. under the provisions of the National Bank Act. Bank of America, N.A. is successor by merger to BAC and, as a matter of law, is deemed to be the same company as BAC. Although the Maduras identify BAC and Bank of America, N.A., individually, as parties to this suit, Bank of America, N.A. is litigating for itself and as successor by merger to BAC.

On February 19, 2013, the Maduras filed their initial Motion to Strike the Affidavit of "Brieranne Siriwan Attempting to Support Bank of America's Motion for Final Summary Judgment" (Doc. # 393) and thereafter on April 8, 2013, the Maduras filed their "Rule 37(c) Emergency Verified Motion to Exclude Affidavit of Brieanna Sirivan and Certain Exhibits in the Bank's Statement of Undisputed Facts" (Doc. # 437). Bank of America failed to respond to the initial Motion to Strike Brieanne Siriwan's Affidavit, but on March 27, 2013, did respond to the Maduras' second Motion to Strike Brieanne Siriwan's Affidavit. (Doc. # 419). On April 9, 2013, the Maduras filed their "Emergency Verified Motion to Strike and/or Exclude Never Delivered to Closing Forged and Inadmissible as Hearsay Adjustable Rate Note Attached to the Bank of America's NA (Bank) Motion for Final S.J. and a Motion for Imposing Sanction in Form of Dismissal and/or denying the Bank's Motion for Final Summary Judgment due to the Bank's Attempt to Commit Fraud upon the Court." (Doc. # 441). Bank of America did not respond to this Motion to Strike.

Also before the Court is the Maduras' March 26, 2013, "Motion for Partial Summary Judgment as to Issue of Bank of America NA Lack of Standing to Foreclose." (Doc. # 415). Bank of America filed a Response in Opposition on April 29, 2013 (Doc. # 451), and the Maduras filed a Reply (Doc. # 468) on May 24, 2013. In addition, Bank of America filed its Motion in Limine to Strike or Exclude the Forensic Document Examination Reports of Thomas Vastrick (Doc. # 454) on April 30, 2013. The Maduras responded on May 6, 2013. (Doc. # 458).

On June 28, 2013, the Maduras filed "Counterdefendants' Motion for Leave to File a Response to the Bank's Summary Judgment Arguments as to Amended Complaint Filed as (Doc. 77-2) in Response to the Court's Order (Doc. 476)" (Doc. # 480) and "Counterdefendants' Motion to Strike, or in Alternative, to Exclude Amended Complaint (Doc. 477-2) filed in Bank of America NA (Bank) Notice of Filing Documents (Doc. 477) in Alleged Response to the Court's Order (Doc. 476) as Not Responsive to the Said Order" (Doc. # 482). Bank of America responded to this motion on July 2, 2013. (Doc. # 486). Also before the Court is "Counterdefendants' Motion this Court Deny Bank of America NA Request this Court to Take Judicial Notice From Small Claim Court Amended Complaint Due to the Bank's Willful and Repeat Direct Violation of the Court's Order (Doc. 467) and Fla. And Fed. R. Civ. Pr., and for an Order to Show Cause Why Sanctions Should not be Imposed for the Bank's Attempts to Mislead the Court" (Doc. # 487), filed on July 8, 2013.

For the reasons that follow, the Court grants Bank of America's Motion for Summary Judgment and grants Bank of America's Motion in Limine as to the Forensic Reports of Thomas Vastrick. The Court denies the motions filed by the Maduras.

I. Background

A. The Madura Loan and Default Full Spectrum Lending made a $87,750.00 loan to Mr. Madura on July 26, 2000 (the "Loan"). (Siriwan Aff. Doc. # 360-1 at ¶ 4). On that same day, Mr. Madura signed a promissory note (the "Note") (Doc. # 360-2) and both Mr. Madura and Mrs. Madura signed a mortgage in favor of Full Spectrum Lending, which encumbered their real property located at 3614 57th Ave Drive West, Bradenton, Florida, 34210 (the "Mortgage"). (Doc. # 360-3). Mr. Madura also signed an arbitration agreement at the loan closing. (Doc. # 360-4). Upon request of the Court, Bank of America has furnished the original loan documents, including the Note, to the Court. The Court has directed the that the documents be filed with the Clerk's Office in a secure location.

As of April 27, 2009, Countrywide Home Loans, Inc. changed its name to BAC Home Loans Servicing, L.P. (Doc. # 360-18). On April 30, 2009, BAC Home Loans Servicing, L.P. purchased the Madura loan. (Siriwan Aff. Doc. # 360-1 at ¶ 7; Doc. # 360-6). On July 1, 2011, BAC Home Loans Servicing, L.P. merged with and into Bank of America, N.A. (Siriwan Aff. Doc. # 360-1 at ¶ 8; Doc. # 360-19). Bank of America, N.A. notified Mr. Madura when the ownership and servicer rights of the loan were transferred from BAC Home Loans Servicing, L.P. to Bank of America, N.A. (Doc. # 360-7).

The loan has been in default since November 1, 2006, when Mr. Madura failed to make the monthly payment due November 1, 2006. (Siriwan Aff. Doc. # 360-1 at ¶ 10). Countrywide Home Loans sent Mr. Madura a notice of default and acceleration, (Doc. # 360-9) on April 23, 2007. Bank of America sent Mr. Madura its "Re-Notice of Default and Acceleration" (Doc. # 360-10) on February 27, 2012. (Siriwan Aff. Doc. # 360-1 at ¶ 12). At this juncture, Bank of America contends that the Maduras owe $180,238.50 for the following:

Principal Balance: $86,017.57
Interest through 12/31/2012: $77,264.61
Pre-acceleration Late Fees: $1,385.54
Tax Disbursements: $14,817.28
Property Inspection: $753.50

(Id. at ¶ 10). Presumably, additional interest has accrued since the filing of the present motions.

B. Litigation History

1. Madura 1

On May 1, 2002, the Maduras filed a state court action against Full Spectrum Lending and Countrywide Home Loans, Inc. in Manatee County, Florida under case No. 2002 CA 2358 ("Madura 1"). (Doc. # 360-11). On August 5, 2002, the state court determined that all of the claims raised by the Maduras were subject to the arbitration agreement that Mr. Madura admittedly signed at the loan closing. (Doc. # 360-12). All appeals from Mr. Madura in Madura 1 were ultimately denied or dismissed. Madura v. Full Spectrum Lending, Inc., 972 So. 2d 169 (Fla. 2007).

Thereafter, Mr. Madura opted to litigate through his wife, and on July 15, 2003, Mrs. Madura filed an amended complaint against Countrywide (notwithstanding the fact that the Maduras did not arbitrate, despite being ordered to do so). The state court granted summary judgment in favor of Countrywide on June 22, 2005. The Maduras filed multiple appeals, including an appeal to the U.S. Supreme Court, and none were successful. Madura v. Full Spectrum Lending, Inc., 06-9074, 550 U.S. 920 (2007).

2. Madura 2

On November 6, 2006, the Maduras sued Countrywide again, but this time in Federal Court: Madura v. Full Spectrum Lending, Inc. and Countrywide Home Loans, Inc., 8:06-cv-2073-T-24TBM ("Madura 2"). The claims in Madura 1 and Madura 2 were virtually identical. On December 7, 2007, the Honorable Susan C. Bucklew, United States District Judge, dismissed Mr. Madura's claims in favor of arbitration, finding that he was bound by the arbitration agreement. Mr. Madura filed multiple, futile motions to amend the complaint, which Judge Bucklew denied. The court granted summary judgment in favor of Countrywide on July 22, 2008. (Doc. # 360-13). On appeal, the Eleventh Circuit affirmed. (Doc. # 360-14).

3. Madura 3

The Maduras filed a state court action against Bank of America on January 29, 2010, under Case No. 41 2010 CA 830, which Bank of America removed to this Court on February 25, 2010, case 8:10-cv-523-T-33AEP ("Madura 3"). Removal was predicated upon the presentation of a federal question, namely the Maduras' contention that Bank of America violated the Truth in Lending Act, 15 U.S.C. § 1601, et seq. The Maduras' Amended Complaint filed in that action arrayed the following counts against Bank of America:

(1) "Declaratory Judgment under § 86.011, Florida Statute;"
(2) "Alternative Declaratory Judgment as to Mr. Madura;"
(3) "Forgery;"
(4) "Fraudulent Notarization;"
(5) "Violation of § 817/034(4)(b)(1), Florida Communication Act;"
(6) "Intentional Spoliation of the Loan Instruments;"
(7) "Intentionally Sending Derogatory and Inaccurate Reports to Credit Bureaus;"
(8) "Utterly of Forged Instruments in the Public Records;"
(9) "Unauthorized Paid Maduras Taxes in Advance O When They Werte Due;"
(10) "RICO" and
(11) "Two Declaratory Judgments Under §§ 86.011, F.S."

(Madura 3, Doc. # 17).

On July 16, 2010, this Court entered an Order in Madura 3 dismissing the action with prejudice. (Id. at Doc. # 51). This Court specified: "Each and every claim that has been advanced in this action against Bank of America has been addressed and finally adjudicated by the Manatee County Circuit Court in Madura 1 and the present court by Judge Bucklew in Madura 2. The appellate process in those cases has run its course." (Id.).

In Madura 3, this very Court highlighted the frivolous nature of the Maduras' claims as follows:

In 2001, the Maduras contacted Countrywide and asked to pay off the loan early. (Doc. 17 at ¶ 12). Countrywide sent Plaintiffs a "Payoff Demand" that included a prepayment penalty of approximately $5,000. (Id.) Plaintiffs disputed the penalty and also alleged that Countrywide forged Mr. Madura's initials on the document and fraudulently added the name of a false witness on the document. (Id.) Countrywide's Vice President, Jay Laifman, responded that all the loan documents appeared to be proper, but, nonetheless, agreed to waive the prepayment penalty. (Doc. # 17 at ¶ 15; Ex. J). Plaintiffs sued Countrywide anyway.

(Madura 3, Doc. # 51).

4. Madura 4 and Madura 6

The Maduras thereafter initiated two lawsuits in the County Court of Manatee County, Florida. In case No. 2011-SC-3826, the Maduras sued counsel for Bank of America, including Akerman Senterfitt, for violation of the Florida Consumer Collection Practices Act based on the theory that counsel "sen[t] and utter[ed] the forged Adjustable Rate Note" among other allegations concerning the validity of the Note and Mortgage ("Madura 4"). (Doc. # 360-21). The Maduras also filed a forgery action against Countrywide Home Loans, Inc. in case No. 2011 SC 5407 ("Madura 6"). (Doc. # 360-22).

The County Court dismissed with prejudice both Madura 4 and Madura 6 on March 6, 2012, after holding a hearing. (Doc. # 360-23). The County Court determined that "Plaintiffs' claims have previously been addressed and adjudicated." (Id.).

5. Madura 5

The present action, filed in state court on October 14, 2011, and removed to this Court on November 4, 2011, is "Madura 5." Here, the Maduras allege that Bank of America violated the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601, et seq. In their Amended Complaint, the Maduras contend that BAC Home Loan Servicing "failed to notify Plaintiffs that on April 27, 2009, the servicing of the Plaintiffs' loan was transferred from Countrywide Home Loans, LP to BAC HLS." (Doc. # 2 at 6). The Maduras also contend that BAC Home Loan Servicing failed to respond to RESPA Qualified Written Requests. (Id. at 7-12). The Maduras sought remand, which this Court denied. (Doc. ## 8, 19). Bank of America filed its Answer and Affirmative Defenses on December 14, 2011. (Doc. # 23). The Maduras filed a Motion to Strike the Bank's Affirmative Defenses, which this Court denied. (Doc. ## 24, 41). Bank of America filed a Motion to Strike the Maduras' Jury Demand, which this Court granted. (Doc. ## 33, 50).

On April 11, 2012, Bank of America filed its timely Motion for Leave to File Counterclaim and Third Party Complaint. (Doc. # 68). The Court granted the Motion (Doc. # 72) and on May 2, 2012, Bank of America filed its Verified Foreclosure Counterclaim against the Maduras and Third Party Complaint against CIT Loan Corporation and two unknown tenants (Doc. # 77).

The Maduras filed successive Motions to Dismiss the Foreclosure Counterclaim (Doc. # 105, 118, 124), which this Court denied on June 22, 2012. (Doc. # 131). The Maduras filed their Motion for Summary Judgment on Foreclosure Counterclaim on June 28, 2012 (Doc. # 136), and yet another Motion to Dismiss the Foreclosure Counterclaim (Doc. # 147) on July 9, 2012. This Court denied both Motions, which were predicated on the statute of limitations for foreclosure actions, on July 20, 2012. (Doc. # 165). On August 27, 2012, the Maduras filed yet another Motion to Dismiss the Foreclosure Counterclaim, based on lack of subject matter jurisdiction. (Doc. # 203). The Court denied the Motion to Dismiss on September 1, 2012. (Doc. # 213).

On September 6, 2012, the Maduras filed their 105-page Answer and Affirmative Defenses to the Foreclosure Counterclaim. (Doc. # 222). The Maduras include 70 purported affirmative defenses. Bank of America replied on September 28, 2012. (Doc. # 264).

On December 31, 2012, Bank of America filed its Motion for Summary Judgment. (Doc. # 359). Rather than timely responding to the Motion for Summary Judgment, the Maduras filed a succession of appeals and sought a stay of this case pending the outcome of each unsuccessful appeal. (Doc. ## 376, 391). On March 26, 2013, after the stay was lifted, the Maduras filed their Motion for Partial Summary Judgment on the issue of standing (Doc. # 415) and response in opposition to Bank of America's Motion for Summary Judgment (Doc. # 416). On April 29, 2013, Bank of America responded to the Maduras' Motion for Partial Summary Judgment. (Doc. # 451). Also before the Court are various Motions to Strike filed by the Maduras and a Motion in Limine filed by Bank of America.

II. Judicial Notice

Bank of America requests that the Court take judicial notice of "the claims asserted in, procedural history of, and disposition of all cases previously filed by the Maduras arising out of or in connection with the mortgage loan that is the subject of this case." (Doc. # 360 at 3, n.2). Bank of America has supplied the Court with the relevant documents whose accuracy cannot be legitimately questioned, and the Court accordingly takes judicial notice of the state and federal court documents pursuant to Fed. R. Evid. 201.²

2 The Eleventh Circuit has held that a court may take judicial notice, under Federal Rule of Evidence 201, of an order rendered by another court, solely for "the limited purpose of recognizing the 'judicial act' that the order represents or the subject matter of the litigation." U.S. v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994).

These pleadings and orders are public court records "capable of accurate and ready determination by resort to sources whose accuracy [cannot] reasonably be questioned." Frame v. U.S., No. 3:10-cv-360-J-34JRK, 2010 WL 5951969, at *4 (M.D. Fla. Dec. 20, 2010). The Court notes that the Maduras object to the Court taking judicial notice of their prior complaints, contending that Bank of America failed to file complete copies of the relevant pleadings. However, at this juncture and with leave of the Court, Bank of America has filed complete copies of the relevant court documents. Therefore, the Court denies as moot "Counterdefendants' Motion to Strike, or in Alternative, to Exclude Amended Complaint (Doc. 477-2) filed in Bank of America NA (Bank) Notice of Filing Documents (Doc. 477) in Alleged Response to the Court's Order (Doc. 476) as Not Responsive to the Said Order" (Doc. # 482) and also denies as moot "Counterdefendants' Motion this Court Deny Bank of America NA Request this Court to Take Judicial Notice From Small Claim Court Amended Complaint Due to the Bank's Willful and Repeat Direct Violation of the Court's Order (Doc. 467) and Fla. And Fed. R. Civ. Pr., and for an Order to Show Cause Why Sanctions Should not be Imposed for the Bank's Attempts to Mislead the Court" (Doc. # 487). After careful review of these Motions, the Court determines that it is appropriate to take judicial notice of the prior proceedings.³

3 The Court also takes this opportunity to deny the Maduras' "Motion for Leave to File a Response to the Bank's Summary Judgment Arguments as to Amended Complaint Filed as (Doc. 77-2) in Response to the Court's Order (Doc. 476)" (Doc. # 480). Both Bank of America's Motion for Summary Judgment and the Maduras' Motion for Partial Summary Judgment are fully briefed, and Bank of America's ministerial act of filing a complete copy of a prior complaint in Madura 1 does not necessitate further briefing from the Maduras (especially since the complaint in question is one that the Maduras themselves generated).

The Court also takes judicial notice of the official documents from the Office of the Secretary of State bearing the seal of the State of Texas, reflecting that Countrywide Home Loans, Inc. changed its name to BAC Home Loans Servicing, L.P. (Doc. # 360-18) and reflecting that BAC Home Loans Servicing, L.P. merged with and into Bank of America, N.A. (Doc. # 360-19). See Allstate Ins. Co. v. Estate of Robert M. Levesque, No. 8:08-cv-2253-T-33EAJ, 2010 WL 2978037, at *1 (M.D. Fla. July 19, 2010)(citing Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1279 (11th Cir. 1999))(taking judicial notice of corporate documents required to be filed with the Securities and Exchange Commission).

III. Daubert Analysis

Before delving into the summary judgment analysis, the Court will address Bank of America's Motion in Limine to Strike or Exclude the Forensic Document Examination Reports of Thomas Vastrick (Doc. # 454).

The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is the product of reliable principals and methods; and
(d) the expert has reliably applied the principals and methods to the facts of the case.

Fed. R. Evid. 702.

Rule 702 is a codification of the Court's landmark case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in which the Supreme Court described the district courts' gatekeeping function in the context of qualifying expert witnesses. In Rink v. Cheminova, Inc., 400 F.3d 1286 (11th Cir. 2005), the Eleventh Circuit further clarified the role of the district courts:

To fulfill their obligation under Daubert, district courts must engage in a rigorous inquiry to determine whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

Rink, 400 F.3d at 1291-92 (internal citations omitted). The party offering an expert has the burden of satisfying each of these elements by a preponderance of the evidence. Id. at 1292; see also Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999)("The burden of laying the proper foundation for the admission of the expert testimony is on the party offering the expert, and admissibility must be shown by a preponderance of the evidence.").

The Court has scoured the voluminous record and has located "Forensic Document Examination Reports" from Vastrick dated November 25, 2001 (Doc. # 71 at 4); December 28, 2007 (Id. at 33); February 16, 2008 (Doc. # 171 at 36); July 9, 2012 (Id. at 44); and September 4, 2012 (Doc. # 365-1 at 33-34). The record also contains Vastrick's affidavit (Doc. # 71 at 31-32) in which he explains his educational background and relevant experience as a document examiner.

The Court determines that each of Vastrick's reports falls well short of Daubert's requirements. None of Vastrick's reports contain any discussion of how Vastrick reached his conclusions. Furthermore, the Maduras have not presented any cogent arguments concerning Vastrick's qualifications, his methodology, or how his reports will assist the trier of fact. The Court determines that the reports, which contain ipse dixit reasoning devoid of any substantive analysis, are insufficient as a matter of law. See Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty, 402 F.3d 1092, 1111 (11th Cir. 2005)(Court should exclude expert testimony based on unexplained assurances that the expert's testimony relies on accepted principals or "evidence which is connected to existing data only by the ipse dixit of the expert."). The court is granted "substantial discretion in deciding how to test an expert's reliability and whether the expert's relevant testimony is reliable." United States v. Majors, 196 F.3d 1206, 1215 (11th Cir. 1999). The Court finds Vastrick's reports wholly unreliable and, accordingly, grants Bank of America's Motion to Strike as to Vastrick's reports.

IV. Summary Judgment Standard

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute alone is not enough to defeat a properly pled motion for summary judgment; only the existence of a genuine issue of material fact will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a moving party has discharged its burden, the non-moving party must then 'go beyond the pleadings,' and by its own affidavits, or by 'depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995)(citing Celotex, 477 U.S. at 324).

If there is a conflict between the parties' allegations or evidence, the non-moving party's evidence is presumed to be true and all reasonable inferences must be drawn in the non-moving party's favor. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, the court should not grant summary judgment. Samples ex rel. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988)(citing Augusta Iron & Steel Works, Inc. v. Emp'rs Ins. of Wausau, 835 F.2d 855, 856 (11th Cir. 1988)).

V. Summary Judgment Analysis

A. The Maduras' Amended Complaint

As noted, the Maduras seek relief against Bank of America in this action for violation of RESPA. As explained in Boone v. JP Morgan Chase Bank, 447 F. App'x 961 (11th Cir. 2011), "RESPA prescribes certain actions to be followed by entities or persons responsible for servicing federally related mortgage loans, including responding to borrower inquiries." Id. at 964. RESPA also "requires notification in writing of any assignment, sale, or transfer of the servicing of the loan to any other person . . . within fifteen days of the transfer." Id. (internal citations omitted).

The Maduras claim that Bank of America failed to comply with RESPA's notice and borrower inquiry provisions set forth in 12 U.S.C. § 2605 (b), (c), and (e). The Court determines that Bank of America is entitled to summary judgment on each of the Maduras' RESPA claims as follows. (1)

1. RESPA Notice § 2605 (b) and (c)

12 U.S.C. § 2605 (b) provides that "[e]ach servicer of any federally related mortgage loan shall notify the borrower in writing of any assignment, sale, or transfer of the servicing of the loan to any other person." Subsection (c) similarly provides that: "[e]ach transferee servicer to whom the servicing of any federally related mortgage loan is assigned, sold, or transferred shall notify the borrower of any such assignment, sale, or transfer." 12 U.S.C. § 2605(c).

In the Amended Complaint, the Maduras contend that BAC Home Loans Servicing LP "failed to notify Plaintiffs that on April 27, 2009, the servicing of the Plaintiff's loan was transferred from Countrywide Home Loans, LP to BAC HLS." (Doc. # 2 at ¶ 20). However, the record shows that on April 27, 2009, Countrywide Home Loans Servicing, L.P. changed its name to BAC Home Loans Servicing, L.P. (Doc. # 360-18). Thus, as argued by Bank of America, "[t]he inclusion of 'to any other person' [in § 2605] means just that: if the servicing stays with the same entity, albeit under a different name, then no 'transfer' has occurred." (Doc. # 359 at 5).

The Maduras are not the only plaintiffs that have complained of RESPA violations due to Countrywide Home Loans Servicing, L.P.'s name change to BAC Home Loans Servicing, L.P. In Huckfeldt v. BAC Home Loans Servicing, L.P., No. 10-cv-1072, 2011 U.S. Dist. LEXIS 111581 (D. Colo. Sept. 19, 2010), the court granted summary judgment in favor of BAC Home Loans Servicing, L.P. after finding "BAC has come forward with evidence that Ms. Huckfeldt's loan was not even 'transferred,' but simply that the entity that owned her loan changed its name. Without a 'transfer' of the loan from one entity to another, the notice requirements . . . are not triggered." Id. at *29-30.

In addition, 24 C.F.R. § 3500.21(d), a part of Regulation X (RESPA's implementing regulation), explains that transfers between affiliates or resulting from mergers or acquisitions are not considered "transfers" requiring RESPA notice if "there is no change in the payee, address to which payments must be delivered, account number, or amount of payment due." 24 C.F.R. § 3500.21 (d) (1) (i). The Maduras acknowledge that "[Countrywide Home Loans, Inc.] was rebranded Bank of America Home Loans." (Doc. # 2 at ¶ 6). Furthermore, the Maduras have not come forward with evidence tending to show that any relevant terms changed, which would require RESPA notice. Bank of America is thus entitled to summary judgment as to the Maduras' RESPA claims for failure to give notice under §§ 2605(b) and (c).

2. RESPA Qualified Written Requests § 2605(e)

As previously noted, RESPA also requires a loan servicer to respond to Qualified Written Requests from a borrower. A Qualified Written Request is:

a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer that (i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and (ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.

12 U.S.C. § 2605(e)(1)(B).

To prevail on their § 2605(e) RESPA claim, the Maduras must demonstrate: "(1) that Defendants are servicers; (2) that [Defendants] received a qualified written request ('QWR') from the borrower; (3) that the QWR related to the servicing of the loan; (4) that Defendants failed to adequately respond; and (5) that Plaintiffs are entitled to actual or statutory damages." Echeverria v. BAC Home Loans Servicing, L.P., No. 6:10-cv-1933-Orl-28DAB, 2012 U.S. Dist. LEXIS 44487, at *4-5 (M.D. Fla. Oct. 22, 2012).

Importantly, "the term 'servicing' means receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan . . . and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the loan." 12 U.S.C. § 2605(i)(3). As the Echeverria court explained, a plaintiff's letter requesting a loan modification is not a Qualified Written Request because such a letter does not concern "servicing" of a loan as that term is defined in RESPA. Furthermore, the court in Jones v. Vericrest Financial, Inc., No. 1:11-cv-2330, 2011 U.S. Dist. LEXIS 151458, at *49 (N.D. Ga. Dec. 7, 2011), held that "a QWR by definition relates solely to the servicing of the loan, not to issues related to the origination of the loan."

The Maduras attach numerous letters to their Amended Complaint and assert that each such letter is a Qualified Written Request that Bank of America failed to properly address. (Doc. # 1-1 at 15-84). The Court has reviewed each such letter and determines that none of the letters relate to the servicing of the loan and, thus, none of the letters are Qualified Written Requests.

The Maduras' own description of their purported Qualified Written Requests is instructive. In the Amended Complaint, the Maduras allege:

On January 21, 2010, the Plaintiffs sent QWR to BAC-HLS containing information that allow BAC-HLS to identify Plaintiffs and account containing evidence of forgery and a warning, that any passing, assignments, endorsements or copping of the said forged Note and loan to any next holder, knowing that the same has been falsely made, be illegal and punished by penalty and prison pursuant to federal law 18 U.S.C. 493, 18 USC 1001, Bank Law: 12 USC 1940 ed s371 (conspiring), 18U.S.C.1005 and 1006, and s. 831.09 F.S.

(Doc. # 2 at ¶ 23).

The Maduras' letters are threatening (Doc. # 1-1 at 15, Ex. 1); warn BAC Home Loans Servicing, L.P. to refrain from assigning or selling their loan due to an alleged forgery (Id. at Ex. 2); demand acknowledgment that their loan was rescinded and challenge certain tax payments (Id. at Ex. 3, 6, 8, 9, 10, 12); do not contain information so as to identify the loan in question (Id. at Ex. 4); threaten to file suit and challenge the terms of the loan (Id. at Ex. 5, 8, 9, 10); demand the payment of treble damages (Id. at Ex. 7); accuse the bank of mail fraud (Id. at Ex. 10); demand to know the identity of the note's holder and request copies of loan documents (Id. at Ex. 11); and demand to know the name, address, and phone number for the obligor on the Note; however, Mr. Madura, himself, is the obligor (Id. at Ex. 12).

RESPA's definition of a Qualified Written Request, even construed broadly, does not include the kind of correspondence attached to the Amended Complaint as discussed above. Thus, the Court determines that Bank of America is entitled to summary judgment as to the Maduras' RESPA claims as asserted in their Amended Complaint.

The Court will now turn its attention to Bank of America's foreclosure counterclaim.

B. Bank of America's Foreclosure Counterclaim

As discussed above, Full Spectrum Lending made a loan to Mr. Madura in the amount of $87,750.00 on July 26, 2000. (Siriwan Aff. Doc. # 360-1 at ¶ 4). Mr. Madura signed the Note (Doc. # 360-2) and both Mr. Madura and Mrs. Madura signed the Mortgage. (Doc. # 360-3). At this juncture, Bank of America has established that it owns the Note and possesses the Note. Furthermore, it has furnished the original Note to the Court.

The Note has been in default due to nonpayment since November 1, 2006. The Maduras were given multiple opportunities to cure the default and have not done so. Bank of America now seeks to foreclose on the Note.

The Maduras have presented 77 "affirmative defenses" to Bank of America's foreclosure counterclaim and have filed a Motion for Summary Judgment on the issue of Bank of America's standing to foreclose. As standing is a threshold issue, the Court will address the Maduras' Motion for Partial Summary Judgment and then evaluate the Maduras' defenses to Bank of America's Foreclosure Counterclaim.

C. The Maduras' Motion for Partial Summary Judgment on Standing

In the Maduras' Motion for Partial Summary Judgment, the Maduras contend that Bank of America lacks standing to foreclose because the Loan has been rescinded, and that the Note and the Allonge appended thereto are not authenticated. In addition, it appears that the Maduras contend that Bank of America is not a holder of the Note and that the Note is not a negotiable instrument.

1. Rescission

The Maduras argue that "Homeowners, in Compliance with the TILA and Timely, Rescinded the Subject Loan." (Doc. # 415 at 3). The Maduras assert that the rescission was accomplished on May 23, 2001, when the Maduras sent Countrywide Home Loans Customer Service the purported rescission letter in which the Maduras charge Countywide of "taking advantage of poor people by giving them loans with very high percentage rates." (Doc. # 203 at 5-11).

This is not the first time that the Maduras have raised their meritless contention that their Loan has been rescinded. Indeed, on August 27, 2012, the Maduras filed their Motion to Dismiss the Bank's Foreclosure Counterclaim for Lack of Subject Matter Jurisdiction (Doc. # 203). In an Order dated August 31, 2012, the Court denied the Motion to Dismiss and specifically found that the May 23, 2001, letter "even construed broadly" did not rescind the Loan. (Doc. # 213). The Maduras moved for reconsideration of the Order (Doc. # 225), which this Court denied on September 11, 2012. (Doc. # 226). The Maduras filed an Amended Motion for Reconsideration (Doc. # 228), which this Court denied on September 12, 2012. (Doc. # 230).⁴

4 It should also be noted that the Maduras asserted the same rescission argument in Madura 2, which was rejected by Judge Bucklew. The Eleventh Circuit affirmed Judge Bucklew's determination that the Loan was not rescinded. Madura v. Countrywide Home Loans, Inc., 344 F. App'x 509 (11th Cir. 2009).

The Court echoes its prior finding that the Loan has not been rescinded and also finds that the Maduras' rescission theory fails because the Maduras made monthly mortgage payments for more than five years after sending the purported rescission letter on May 23, 2001. By making payments until November 1, 2006, the Maduras ratified their obligation under the Note after the claimed rescission.

2. Authentication of Note and Allonge

A copy of the original Note and the Allonge, which is indorsed in blank, is before the Court. (Doc. # 360-2). The original documents have also been furnished to the Court. The Maduras contend that the Note and Allonge are not authenticated, are "infected with fraud," and are not stapled together. (Doc. # 415 at 12-13).

The Court determines that Bank of America has properly authenticated the Note and Allonge by filing the affidavit of Brieanne Siriwan, "AVP; Operations Team Lead" in which she attests that Bank of America "directly or through an agent has possession of the Note and held the Note indorsed in blank prior to filing the foreclosure [counterclaim] on May 2, 2012." (Doc. # 360-1 at ¶ 6). Siriwan also states facts that establish that the Note and Allonge are "kept in the course of [Bank of America's] regularly conducted business activities." (Id. at ¶ 30). Although the Maduras seek an order striking Siriwan's affidavit, the Court denies the Motions. (Doc. ## 393, 437). Siriwan's affidavit satisfies the requirements of Rule 56 because such affidavit is made on personal knowledge, sets out facts that would be admissible in evidence, and shows that Siriwan is competent to testify as to the matters contained in her affidavit.⁵

5 The Court acknowledges that the Maduras argue that Bank of America failed to disclose Siriwan's identity during discovery. However, the Court declines to employ the draconian sanction of striking Siriwan's affidavit on this basis alone. Furthermore, even if the Court were to strike her affidavit, the result would not change. Bank of America has tendered the Note to the Court and has established its entitlement to foreclosure.

The Maduras also contend that the Note and Allonge are defective because they are not currently stapled together. The Court rejects this argument. Counsel for Bank of America explains that these documents have been the subject of litigation for a decade and accordingly, have been unstapled, copied, and served in discovery on numerous occasions. (Doc. # 451 at 8). Furthermore, the Bank has placed each of these original documents in clear plastic sheaths to allow each document to be inspected individually and to protect each document. (Id.). Bank of America's actions taken to safeguard its original documents do not invalidate such documents.

Furthermore, to the extent the Maduras contend that the "expert" report of Vastrick demonstrates that the Allonge is fabricated or that the Maduras' signatures were forged on certain loan documents, the Court has already explained why it cannot consider Vastrick's reports pursuant to Daubert.

Thus, the Court determines that the questioned documents have indeed been properly "authenticated." Furthermore, the Court determines that the Maduras are precluded from asserting that any portion of the Note or other loan documents contain forged signatures based on the doctrine of res judicata, which will be discussed below in connection with the Maduras' affirmative defenses.

3. Negotiable Instrument

The Maduras' final summary judgment argument is that the Note is not a negotiable instrument and therefore cannot be transferred via indorsement on the Allonge. Bank of America points out that this portion of the Maduras' Motion for Summary Judgment was copied and pasted from the internet from a website entitled "Foreclosure Case Killer." Nevertheless, the Court will address the Maduras' arguments.

The Note is a negotiable instrument. The Allonge to the Note, indorsed in blank, entitles the bearer, here Bank of America, to enforce it. See Henderson v. Litton Loan Servs., L.P., 92 So. 3d 301, 302 (Fla. 4th DCA 2012)("[T]he person entitled to enforce a negotiable instrument, such as a note, is the 'holder of the instrument.' A 'holder' is the person in possession of the instrument that is payable to bearer or to an identified person in possession. 'Bearer' means 'a person in possession of a negotiable instrument that is payable to bearer or indorsed in blank.'")(internal citations omitted); Riggs v. Aurora Loan Servs. LLC, 36 So. 3d 932, 933 (Fla. 4th DCA 2010)("Aurora's possession of the original note, indorsed in blank, was sufficient under Florida's Uniform Commercial Code to establish that it was the lawful holder of the note, entitled to enforce its terms.").

Furthermore, Florida law holds that a mortgage is incidental to, and follows, the note. Thus, the holder of the note may foreclose the mortgage securing the note. See Johns v. Gillian, 184 So. 140, 143 (Fla. 1938)("The mortgage in equity passes as an incident to the debt."); WM Specialty Mortg., LLC v. Salomon, 874 So. 2d 680, 682 (Fla. 4th DCA 2004)("It has frequently been held that a mortgage is but an incident to the debt, payment of which it secures, and its ownership follows the assignment of the debt.")(internal citations omitted).

Bank of America's possession of the Note, which is indorsed in blank, defeats the Maduras' arguments that the Note is not a negotiable instrument. Furthermore, Bank of America's standing to foreclose is established because it currently possesses the Note, and possessed the Note when they initiated the Foreclosure Counterclaim.

Thus, Bank of America has standing to bring the Foreclosure Counterclaim. Accordingly, the Court denies the Maduras' Motion for Partial Summary Judgment on the issue of Bank of America's standing to bring the Foreclosure Counterclaim.

D. The Maduras' Defenses to Foreclosure Counterclaim

The Court will now turn its attention to the Maduras' defenses to the Foreclosure Counterclaim. A true affirmative defense is "one that admits to the complaint, but avoids liability, wholly, or partly, by new allegations of excuse, justification or other negating matters." Bluewater Trading, LLC v. Willimar USA, Inc., No. 07-cv-61284, 2008 U.S. Dist. LEXIS 108191, at *2 (S.D. Fla. Sept. 9, 2008). Rule 8(c)(1) includes a non-exclusive list of affirmative defenses, such as accord and satisfaction, estoppel, laches, res judicata, and waiver.

The Court recognizes that a majority of the Maduras' "defenses" are not affirmative defenses at all. Furthermore, in many of the "defenses," the Maduras cast spurious and generalized allegations of wrongdoing against Bank of America. A number of these "defenses" are brought "in recoupment." The Court will address each "defense" ever mindful that the "defenses" are anything but traditional affirmative defenses.

1. Standing

In defenses 2, 3, 4, 5, 6, 9, 13, 14, 15, 23, 31, and 33, the Maduras assert that Bank of America lacks standing to foreclose. Along similar lines, the Maduras assert in defense 10 that Bank of America fails to state a claim for foreclosure because "it has no authority to enforce the subject promissory Note and Mortgage." (Doc. # 222 at 41).

Despite the Maduras' hodgepodge of affirmative defenses and multitude of unsuccessful motions challenging Bank of America's standing (Doc. # 105, 118, 124, 147, and 203), as explained above, there is no genuine issue of material fact that Bank of America does, in fact, have standing to foreclose because it holds the original Note, which is indorsed in blank as reflected in the Allonge. Again, Bank of America attached a copy of the Note and Allonge to the Counterclaim, and thus, it cannot be reasonably disputed that it had possession of these documents when it initiated the Foreclosure Counterclaim. Furthermore, at the request of the Court, Bank of America has tendered the original loan documents. Thus, the Court determines that Bank of America has standing to bring the foreclosure counterclaim and furthermore determines that Bank of America has stated a claim for foreclosure. The Court grants summary judgment in favor of Bank of America as to the Maduras' standing defenses.

2. Forgery

The Maduras assert that "FSL and/or CHL destroyed the original ink signed copies of the Note and the Final TILA Disclosure signed by the Owners at closing and prepared a 'new Note' . . . and a new 'Final TILA Disclosure.' These newly created NOTE and Final TILA Disclosure bear forged signatures of the Owners and contain a different loan condition including prepayment penalty never agreed by the Owners." (Doc. # at 22 at 7, ¶ 8). Defenses 1, 8, 12, 45, 46, 55, 62, and 63 are based on this forgery theory.⁶

6 Defenses 46 and 62 are titled "Bad Faith" and defense 63 is titled "Lack of Condor." Regardless of their labels, the Maduras pursue their theory that the Note has been forged in these defenses. In addition, the Maduras include two defenses under defense 45.

a. Claim Preclusion

The Eleventh Circuit described the doctrine of res judicata as follows:

Under res judicata, also known as claim preclusion, a final judgment on the merits bars the parties to a prior action from re-litigating a cause of action that was or could have been raised in that action. Res judicata may be properly applied only if certain prerequisites are met. In the Eleventh Circuit, a party seeking to invoke the doctrine must establish its propriety by satisfying four initial elements: (1) the prior decision must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases must involve the same parties or their privies; and (4) both cases must involve the same cause of action.

In re Piper Aircraft, 244 F.3d 1289, 1296 (11th Cir. 2001). This doctrine applies to the detriment of the Maduras' forgery defenses. The present Court of competent jurisdiction dismissed with prejudice the Maduras' forgery claim advanced against Bank of America in Madura 3, in which this Court held: "Each and every claim that has been advanced in this action against Bank of America has been addressed and finally adjudicated by the Manatee County Circuit Court in Madura 1 and the present court by Judge Bucklew in Madura 2. The appellate process in those cases has run its course." (Madura 3, Doc. # 51).

The Maduras' forgery contentions are "the same cause of action" as explained in Piper Aircraft because "claims are part of the same cause of action for res judicata purposes when they arise out of the same transaction or series of transactions." 244 F.3d at 1296-97. Without question, the Maduras' forgery contentions advanced in the present action are identical to the forgery contentions raised and addressed in Madura 3 (as well as in Madura 1-2), and arise from the July 2000 loan transaction. Thus, the Maduras' forgery contentions, however presently characterized, are barred by the application of res judicata.

b. Ratification

In addition, even if the Maduras' forgery contentions were not barred by res judicata, the Court finds that the Maduras ratified any alleged forgery on the Note and related documents because the Maduras continued to make monthly mortgage payments for more than five years after discovering the alleged forgery.

As the court in Citron v. Wachovia Mortgage Corp., No. 8:10-cv-1790-T-26TBM, 2013 U.S. Dist. LEXIS 29159, at *31 (M.D. Fla. Feb. 12, 2013), held:

Ratification is conduct that indicates an intention, with full knowledge, of the facts, to affirm a contract which the person did not enter into or which is otherwise void or voidable. If a party knows of the wrongful conduct at issue and does not reject it, and takes any material act inconsistent with an intent to avoid it or delays in asserting any remedial rights, then the party ratifies the transaction.

(internal citations omitted); see also European Am. Bank & Trust Co. v. Starcrete Int'l Ind., Inc., 613 F.2d 564, 566-67 (5th Cir. March 13, 1980)("[A] person may ratify his unauthorized signature if he knowingly assents to it by express statement or conduct (such as retaining benefits accruing from his signature), and he may be precluded from denying it.").⁷

7 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit adopted all cases decided by the Fifth Circuit Court of Appeals prior to the close of business on September 30, 1981, as binding precedent.

The Maduras' action of retaining the loan proceeds and also making monthly payments for many years after discovering the alleged forgeries constitute ratification of the alleged forgeries. Thus, the Court grants summary judgment in favor of Bank of America on the Maduras' forgery defenses.

3. Rescission

The Maduras contend that they rescinded their loan in defense 7. The Court has entered a number of Orders finding that the Maduras have not rescinded their loan and it is not necessary to repeat that ruling once again. (See, e.g., Doc. # 213 at 4). The rescission defense is patently frivolous and Bank of America is entitled to summary judgment on this defense.

4. Securitization/Pooling and Servicing Agreement

In defenses 11, 17, 24, 27, 28, 29, 32, 38, and 42, the Maduras contend that their mortgage is unenforceable because Bank of America failed to comply with a securitization or pooling and servicing agreement. However, the Maduras have not identified such an agreement at the summary judgment stage or explain why the Foreclosure Counterclaim should fail due to the application of any such agreement. The Court determines that these defenses are unsupported by record evidence. As such, summary judgment in favor of Bank of America is warranted on these defenses.

5. Default Letters and Evidence of Default

In defenses 18 and 40, the Maduras incorrectly assert that Bank of America failed to give proper notice of default and acceleration. This Court has previously determined that "the Bank sent the Maduras a default letter dated April 23, 2007, giving the Maduras until May 23, 2007, to cure the default or face acceleration." (Doc. # 165 at 6). The Court has also ruled that "Bank of America sent the Maduras a Re-Notice of Default and Acceleration on February 27, 2012, before it filed its foreclosure Counterclaim." (Doc. # 192 at 7). The initial Notice of Default and Acceleration and Re-Notice of Default and Acceleration are before the Court. (Doc. ## 360-9, 360-10). In addition, Mr. Madura admitted receipt of these letters. (Doc. # 360-16). Accordingly, any defense predicated upon the failure of proper notice of default fails.

In addition, defense 16, in which the Maduras paradoxically claim that Bank of America cannot show that the Maduras defaulted on the loan, also succumbs. The record is replete with evidence documenting the Maduras' default, and the Maduras have not pointed to any evidence beyond self-serving allegations to refute the evidence of default. See, e.g., (Siriwan Aff. Doc. # 360-1 at ¶ 10).

6. Collateral Payments and Tender of All Equity

In defense 19, the Maduras assert: "On information and belief, the Bank has actually collected full payment on the subject Note and mortgage or will receive full payment for any delinquency including fees and costs association with enforcement of the note and mortgage. Thus, any further award of damages to the Bank would result in a windfall to the Bank." (Doc. # 222 at 49, ¶ 92). The Maduras likewise assert in defense 52, that "[i]t is inequitable for Bank engage in foreclosure given the fact that mortgage loan obtained as assignee or by merger has been already paid or almost paid in equity." (Doc. # 222-1 at 9).

There is no evidence in the record to support these contentions. The Maduras have been given ample opportunity to show the Court that the loan in question has been paid and they have not done so. Simply put, these defenses are frivolous and do not impede Bank of America from bringing the Foreclosure Counterclaim. The Court grants summary judgment in favor of Bank of America as to these defenses.

7. Fair Credit Reporting Act

In defenses 20 and 39, the Maduras contend that Bank of America violated the Fair Credit Reporting Act, 15 U.S.C. § 1681 because: "Owner, Mr. Madura applied for and was either denied or delayed credit or caused to pay more for credit from credit grantors, based in whole or in part, on inaccurate, misleading, adverse information contained in the credit reports of TransUnion, Equifax and Experian, placed there and published there by plaintiffs collection efforts on the subject Mortgage loan." (Doc. # 222 at 49, ¶ 93).

The Maduras have not buttressed their contention that Bank of America has violated the Fair Credit Reporting Act with any evidence. The Maduras' unsupported allegation that Bank of America has violated a consumer protection statute as a "defense" to the Foreclosure Counterclaim is ineffective. In addition, Bank of America has come forward with evidence, namely Mr. Maduras' deposition testimony, in which Mr. Madura admits that the Maduras never contacted any credit reporting agency regarding the allegedly inaccurate information. (Doc. # 360-26). To assert a claim for violation of the Fair Credit Reporting Act, the Maduras were required to dispute the accuracy of their debt to a credit agency. See Insignares v. Countrywide Home Loans, Inc., No. 09-cv-60128, 2009 WL 2444322, at *2 (S.D. Fla. July 15, 2009)("The plaintiffs, however, fail to allege that the defendants received notice of a consumer dispute from a customer reporting agency. Because there is no indication that any dispute was ever initiated by the plaintiffs prior to filing this action, the obligations imposed by § 1681s-2(b) on the defendants to investigate the credit history information they furnish are not implicated.").

Thus, the Maduras' unjustified and unsupported claim that Bank of America violated the Fair Credit Reporting Act stands as no defense to the Foreclosure Counterclaim and the Court grants summary judgment in favor of Bank of America as to this purported defense.

8. Unjust Enrichment

Defenses 21 and 51 are predicated upon the equitable doctrine of unjust enrichment. Both of these defenses fail because "Florida courts have held that a plaintiff cannot pursue a quasi-contract claim for unjust enrichment if an express contract exists concerning the same subject matter." Williams v. Wells Fargo Bank, No. 11-21233, 2011 WL 4901346, at *6 (S.D. Fla. Oct. 14, 2011); see also Validsa, Inc. v. PDVSA Servs., 424 F. App'x 862, 873 (11th Cir. 2001)(affirming district court's dismissal of counterclaim for unjust enrichment due to the existence of an express contract).

As argued by Bank of America, "if the Maduras had any valid claim against BANA . . . it would be in contract, not in equity." (Doc. # 359 at 18). Thus, the Maduras' unjust enrichment arguments are unavailing and Bank of America is entitled to summary judgment on the Maduras' unjust enrichment defenses.

9. Debt Collection Abuses

In defenses 22 and 26, the Maduras assert that Bank of America is precluded from recovery on its Foreclosure Counterclaim because it is "collecting a debt it had no right to collect" and that Bank of America has violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692. (Doc. # 222 at 50-54). These defenses are patently frivolous. The Note and Mortgage are before the Court. These documents belie the Maduras' assertions that Bank of America has "no right to collect." The Court grants summary judgment in favor of Bank of America on these spurious defenses.

10. RESPA

In defenses 25, 54, 58, and 70, the Maduras contend that Bank of America violated the terms of RESPA. The Court has already analyzed the Maduras' RESPA claims contained in the Maduras' operative complaint and determined that the Maduras are not entitled to any relief under RESPA. The same result is warranted upon examination of the Maduras' RESPA defenses.

In the RESPA defenses, the Maduras assert that they are entitled to an accounting and also reassert their argument that Bank of America failed to respond to additional RESPA Qualified Written Requests.

To the extent the Maduras seek an accounting under RESPA, that contention is baseless. The right to an accounting is not provided for in the RESPA statute. See, e.g., Carrillo v. Bank of N.Y., No. 09-61642, 2009 WL 5708925, at *4 (S.D. Fla. Dec. 22, 2009)("[T]he remedy provisions under [RESPA] include damages and costs, but not accounting."); Ung v. GMAC Mort., LLC, No. 09-893, 2009 WL 2902434, at *4 (C.D. Cal. Sept. 4, 2009)(RESPA's "remedy provisions include damages and costs, but section 2605 does not provide for accounting.").

As to the purported RESPA Qualified Written Requests, the Court notes that it has previously determined that the correspondence attached to the Maduras' Amended Complaint (originally filed in state court) did not conform to the requirements of RESPA so as to constitute Qualified Written Requests. The alleged Qualified Written Requests mentioned in defense 70 (and attached to the Maduras' Answer (Doc. # 222-1 at 50-65)) also fail to meet the definition of a Qualified Written Request, as that term is defined by governing law. The Maduras' letter to Bank of America dated June 28, 2011, is emblematic of the letters tendered in support of the Maduras' RESPA defenses. This combative letter begins by stating "this is a qualified written request under Section 6 of RESPA" and contains demands including "an explanation and proof that any sale or transfer of the said loan was conducted in accordance with the proper laws ands a true sale of NOTE." (Doc. # 222-1 at 50). Merely describing correspondence as a RESPA Qualified Written Request does not make it so.

It is apparent to the Court that the letters referenced by the Maduras in their defense to the Foreclosure Counterclaim do not fall within the ambit of RESPA's protections and do not preclude enforcement of Bank of America's Foreclosure Counterclaim. The Maduras have filed countless documents in this case, but not a single such document supports their contention that Bank of America violated RESPA. Thus, each of the Maduras' RESPA claims and defenses are without merit and Bank of America is entitled to summary judgment on each of the Maduras' RESPA claims and defenses.

11. Equitable Lien

Inexplicably, in defense 34, the Maduras contend that Bank of America is not entitled to an equitable lien. However, as Bank of America does not seek an equitable lien in this case, defense 34 is inapplicable and inapposite. Summary Judgment in favor of Bank of America is appropriate on this irrelevant defense.

12. Estoppel

In defense 35, the Maduras claim that Bank of America is estopped from prosecuting the foreclosure counterclaim because the Note is not a negotiable instrument. The Court rejects this argument for the reasons explained above (namely that the Note is indorsed in blank and Bank of America holds the Note).

In defense 48, labeled "Forty Eight Affirmative Damages- Estoppel," the Maduras state: "Bank is estopped from asserting foreclosure claims for the reasons stated in paragraph 1-27 above." (Doc. # 222-1 at 7). The Maduras provide no further discussion of their estoppel contentions and have not furnished the Court with any basis for employing the equitable doctrine of estoppel in this case. The Court grants Bank of America summary judgment on the Maduras' estoppel defenses.

13. Unclean Hands

In defenses 36, 47, and 67, the Maduras request that the Court bar prosecution of the Foreclosure Counterclaim on the basis of Bank of America's alleged unclean hands. While the Maduras correctly reference case law providing that a foreclosure action may be barred if the note holder comes to the court with unclean hands, see, e.g., Knight Energy Services, Inc. v. Amoco Oil Co., 660 So. 2d 786, 789 (Fla. 4th DCA 1995), the Maduras have not identified any specific conduct by Bank of America or its privity upon which this Court could render a finding of unclean hands. The three unclean hands defenses are nearly identical, however, defense 67 contains the additional allegation that: "As a mattr of equity, this Honorable court should refuse acceleratuon and because m, amoung bthe other things, the Bank has waived the right to accelertion or is estopped from doing so because of fraudulent and misleading conduct in thuis wrongful foreclosure and unfulfilled contractual and equitavle condition precedent." (Doc. # 222-1 at 22). This nearly incomprehensible allegation adds nothing more than bluster to the Maduras' case.

This Court has broad discretion in exercising its equitable powers, especially in the context of a foreclosure proceeding; however, in the present case, the Maduras have not pointed the Court's attention to any evidence relevant to an unclean hands defense. Bank of America is entitled to summary judgment on this defense.

14. Fraud

In defense 37, the Maduras attempt to assert the defense of fraud. However, the vague assertions contained in defense 37 fail to meet the standard enunciated in Rule 9(b), Fed. R. Civ. P., which requires that "a party must state with particularity the circumstances constituting fraud or mistake." Here, the rambling allegations of fraud, which are not buttressed by any evidence in the file, fail to carry the day. Bank of America is entitled to summary judgment as to the defense of fraud.

15. National Housing Act

Defense 41, titled "Failure to Provide Required Default Loan Servicing" and defense 45, titled "Failure of Good Faith and Fair Dealing: Unfair and Unacceptable Loan Servicing," both accuse Bank of America of violating the National Housing Act, 12 U.S.C. § 1701.⁸ Both defenses appear to contend that compliance with HUD guidelines is a prerequisite to foreclosure under Florida law. However, the Maduras are incorrect. As explained in Cross v. Federal National Mortgage Association, 359 So. 2d 464, 465 (Fla. 4th DCA 1978), "It seems clear now that the HUD guidelines are not mandatory procedures constituting conditions precedent to foreclosure."

8 The Answer contains two defenses labeled as forty-fifth affirmative defense. (Doc. # 222-1 at 3-4).
--------

The Maduras' defenses regarding the National Housing Act and HUD regulations are not cognizable. Furthermore, to the extent the Maduras may attempt to cast defense 45 as both under HUD regulations, and as a breach of the covenant of good faith and fair dealing defense, such defense is unavailing. Pursuant to Centurion Air Cargo, Inc. v. United Parcel Service Co., 420 F.3d 1146, 1151 (11th Cir. 2005)(citations omitted), "A breach of the implied covenant of good faith and fair dealing is not an independent cause of action, but attaches to the performance of a specific contractual obligation." See also W. Indies Network-I, LLC v. Nortel Networks, 243 F. App'x 482, 484 (11th Cir. 2007)("no claim for breach of the duty of good faith exists under Florida law independently of an enforceable contract. . . . [T]he good faith requirement does not exist 'in the air.' Rather, it attaches only to the performance of a specific contractual obligation.").

Here, the Maduras have not identified a specific provision of the Note or Mortgage that they contend Bank of America violated. Instead, the Maduras point to alleged conduct by Bank of America that is extraneous to the Note and Mortgage (e.g. alleged violation of the National Housing Act, failure to acknowledge RESPA Qualified Written Requests, and failure to comply with a certain Consent Judgment issued in a different case).

Thus, defenses 41 and 45, however characterized by the Maduras, must fail and Bank of America is entitled to summary judgment as to these defenses.

16. Consent Judgment

Defense 43 is titled "Bank Failed to Comply with the Condition Precedent Set forth in US District for the District of Columbia April 4, 2012, Consent Judgment." Therein, the Maduras allege that Bank of America "directly violated the precedent conditions' requirements for filing foreclosure of Owners' homestead which were set forth by the United States District Court for the District of Columbia, in Consent Judgment in the United States v. Bank of America and Bank of America, N.A. (Case No. 1:12-cv-00361-RMC) effective April 4, 2012 (Jud. Notice Doc. 110)." (Doc. # 222 at 75). The Maduras fail to explain why a consent decree from an unrelated litigation would bind the present court. This incoherent defense does not preclude Bank of America from prosecuting the Foreclosure Counterclaim and is unavailing. The Court grants summary judgment to Bank of America on this defense.

17. TILA

In defenses 44, 56, and 57, the Maduras contend that Bank of America failed to comply with the Truth in Lending Act, 15 U.S.C. § 1641(g). The Maduras have failed to explain how a violation of this statute would preclude foreclosure. Furthermore, the Maduras have not presented any evidence substantiating a violation of TILA. Mere allegations, such as those presented in defenses 44, 56, and 57 will not, and do not, bar Bank of America's Foreclosure Counterclaim.

Furthermore, to the extent the Maduras seek damages in recoupment for alleged TILA violations in connection with the origination of the loan dated July 26, 2000, such claims were disposed of in Madura 2. It is not prudent for the Court to revisit those long-decided issues, and summary judgment in favor of Bank of America on the Maduras' TILA defenses is appropriate.

18. Waiver and Release

Defenses 49 and 64 are labeled "waiver and/or release." Defense 49 states in full, "Bank has waived and/or released he right to bring the foreclosure claims asserted in counterclaim for the reasons stated in paragraph 1-27 above." (Doc. # 222-1 at 7). Likewise, defense 64 states in full, "Bank has waived and/or released he right to bring the foreclosure claims asserted in counterclaim for the reasons stated in Bad Faiuth Afformative Defenses." (Id. at 21).

"Waiver is the voluntary and intentional relinquishment of a known right, or conduct which implies the voluntary and intentional relinquishment of a known right." Major League Baseball v. Morsani, 790 So. 2d 1071, 1077 n.12 (Fla. 2001). The Maduras have not presented a cogent argument or a scrap of evidence in support of their contention that Bank of America waived its right to pursue the Foreclosure Counterclaim. The Maduras' theory that Bank of America "released he right to bring the foreclosure claims" is unavailing because it is unsupported by the record. The Court grants Bank of America's Motion for Summary Judgment as to these fruitless defenses.

19. Laches

In defenses 50 and 65, the Maduras suggest that the Court should bar Bank of America from pursuing the Foreclosure Counterclaim based on the doctrine of laches. As explained in The Florida Bar v. Lipman, 497 So. 2d 1165 (Fla. 1986):

A suit is held to be barred on the ground of laches where, and only where, the following appear: (1) Conduct on the part of the defendant . . . giving rise to the situation of which complaint is raised; (2) delay in asserting the claimant's rights, the complainant having had knowledge or notice of the defendant's conduct and having been afforded an opportunity to institute the suit; (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit; and (4) injury or prejudice to the defendant in the event relief is accorded to the complainant. All of these elements are necessary to establish laches as a bar to relief.

Id. at 1167 (internal citation omitted).

As noted in Goodwin v. Blu Murray Insurance Agency, Inc., 939 So. 2d 1098 (Fla. 5th DCA 2006), "laches requires the element of injury or prejudice to the defendant in the event relief is accorded to the plaintiff, or in the event the suit is not barred." Id. at 1104. In addition, "[l]aches may be applied before the statute of limitations expires only where strong equities . . . appear." Id.

Here, Bank of America filed the Foreclosure Counterclaim within the applicable statute of limitations. The Maduras have not demonstrated to the Court why the timely counterclaim would be subject to the doctrine of laches. See Briggs v. Estate of Geelhoed, 543 So. 2d 332, 333 (Fla. 4th DCA 1989)("It has generally been held that laches does not come into play until the period prescribed by the applicable statute of limitations has expired."). Furthermore, where the statute of limitations has not yet run, "equity will follow the law and apply the statute of limitations" unless "the equities are unequal." Tower v. Moskowitz, 262 So. 2d 276, 279 (Fla. 3d DCA 1972).

In addition, the Maduras have not supplied the Court with a single argument, nor a single item of evidence, supporting the required element of prejudice. If anything, the Maduras have benefitted from Bank of America's delay in bringing the foreclosure counterclaim as they have lived in their home without tendering mortgage payments during the relevant time. Thus, the Maduras' laches defense is ineffective and subject to summary judgment in favor of Bank of America.

20. Usury

In defense 53, the Maduras characterize their loan as usurious. However, in Madura v. Countrywide Home Loans, Inc., 344 F. App'x 509, 518 (11th Cir. 2009), the court held, "We reject Mrs. Madura's claim that the state court's dismissal of her usury claims for lack of standing is not a judgment on the merits for res judicata purposes.". Mr. Madura's usury claims have also been rejected. On August 5, 2002, the state court judge ruled, "this Court has considered Mr. Madura's usury claim, and determined that it is not colorable as a matter of law." Relitigation of Madura 1 is not required at this late juncture. The Maduras have not supported their usury claims with an iota of evidence. These baseless and previously dismissed usury claims do not hinder Bank of America's present Foreclosure Counterclaim, and Bank of America is entitled to summary judgment as to the ill-fated usury contentions.

21. Accuracy of the Balance

The Maduras contend in defense 60 simply that "the balance is not accurate, as payment towards the principal were by CHL improperly accounted as interest, and therefore a complete accounting of the payments are warranted." (Doc. # 222-1 at 20). The Maduras do not explain why the balance is inaccurate. Nor do the Maduras state what they believe the balance should be. The Court determines that this defense is fruitless and grants summary judgment in favor of Bank of America on this defense.

22. Failure of Consideration

In defense 61, the Maduras contend that "Countrywide Home Loans Inc. failed to provide the Maduras with promised cash in the amount of $56,016. It provided about $29,383 in cash only. Such loan transaction must by cancelled for failure of consideration." (Id.).

At the summary judgment stage, the Maduras are required to bolster their contentions, such as the present failure of consideration argument, with evidence. Here, the Maduras have provided only empty accusations regarding an alleged failure of consideration, which are insufficient to impede Bank of America's Foreclosure Counterclaim. The Maduras' contentions regarding the accuracy of the balance do not survive Bank of America's Motion for Summary Judgment.

23. Successor Liability

In defense 68, the Maduras contend that Bank of America is vicariously liable for Countrywide's various transgressions as a result of a merger between Bank of America Corporation with Countrywide Financial. This defense is unavailing because the Maduras have not identified any specific act of wrongdoing perpetrated by Countrywide relevant to Bank of America's Foreclosure Counterclaim. This amorphous defense is unanchored by relevant evidence. Bank of America is entitled to summary judgment as to this defense.

24. Breach of Contract

In defense 69, the Maduras contend that Bank of America breached the Note. As stated in Kaloe Shipping Co. Ltd. v. Goltens Serv. Co., Inc., 315 F. App'x 877, 880 (11th Cir. 2009), "the elements of a breach of contract action are (1) valid contract; (2) a material breach; and (3) damages." The Maduras have failed to allege the existence of these required elements and have not identified any evidence to bolster their allegations as to this deficient defense. This defense is completely unavailing and the Court grants summary judgment in favor of Bank of America as to this defense.

25. Miscellaneous Defenses

It is no easy task to categorize defenses 30, 59, and 66. In these miscellaneous defenses, the Maduras point to external factors in an effort to bring the Foreclosure Counterclaim to a grinding halt. Specifically, in defense 30 titled "Banks sold the same notes multiple times," the Maduras seem to suggest that the Foreclosure Counterclaim is inappropriate because the relevant Note has changed hands from one bank to the next. However, based on the Court's finding that Bank of America holds the Note, which is indorsed in blank, the Maduras' concerns regarding the sale of their Note are unfounded.

Defenses 59 and 66 are also unavailing. In these defenses, the Maduras intimate that "Bank's damages if any may resulted and/or by the acts of third parties over whom [the Maduras have] no authority or control" and that Bank of America's damages were caused by "the actions and omissions of persons or companies other than the [Maduras]." (Doc. # 222-1 at 20-21). However, the Maduras have not substantiated these assertions. Nor have the Maduras identified the individuals or companies at fault. These mysterious defenses are legally insufficient and Bank of America is entitled to summary judgment as to these defenses.

Having addressed all 70 of the Maduras' defenses and having determined that each such defense is completely lacking in merit, the Court determines that it is appropriate to grant Bank of America's Motion for Summary Judgment as to its Foreclosure Counterclaim.

VI. Miscellaneous Motions and Filings

In addition to the motions addressed above, the Maduras have filed an avalanche of pending motions and other "Emergency" documents, ostensibly to avoid the inevitable order authorizing the foreclosure of their residence. The Court will address each of these submissions as necessary.

A. Omnibus Motion to Strike

In the Maduras' "Emergency Verified Motion to Strike and/or Exclude Never Delivered to Closing Forged and Inadmissible as Hearsay Adjustable Rate Note Attached to the Bank of America's NA (Bank) Motion for Final S.J. and a Motion for Imposing Sanction in Form of Dismissal and/or denying the Bank's Motion for Final Summary Judgment due to the Bank's Attempt to Commit Fraud upon the Court" (Doc. # 441), they reassert the unsuccessful argument that Siriwan's Affidavit should be stricken, demand an evidentiary hearing, and claim that Bank of America has perpetrated a fraud upon the Court. The Court denies the Maduras' Motion.

The Court has previously determined that an order striking Ms. Siriwan's Affidavit is not warranted. To the extent the Maduras characterize her Affidavit statements as hearsay, the Court notes that it is capable of separating the wheat from the chaff in the context of conducting summary judgment analysis and has relied upon the Affidavit only to the extent permitted by the Federal Rules.

In addition, the Court determines that an evidentiary hearing is not needed. Here, the Maduras assert self-serving and unsupported statements that Bank of America's documents, including the Note, contain a forgery. The Maduras have raised this contention in a decade-long litigation spree. The doctrine of res judicata bars this contention, whether raised as an affirmative claim or as a defense to the Foreclosure Counterclaim. Furthermore, the Court has determined that the Maduras ratified the alleged forgery by continuing to make monthly mortgage payments for years after discovering the alleged forgery. For these reasons, an evidentiary hearing is not required.

B. Rule 56(d) Declaration

On March 13, 2012, the Court entered its Case Management and Scheduling Order and established October 1, 2012, as the discovery deadline. (Doc. # 58). After the Maduras filed a host of discovery motions, the Magistrate Judge held multiple hearings and entered an order on October 5, 2012, extending the discovery deadline to November 9, 2012. (Doc. # 277). Among other things, the Magistrate Judge ruled:

To the extent that the Bank has in its possession, custody, or control records or documents in whatever format supporting any claim of ownership of the note at issue or its claim that it duly holds the note or any evidence related to authenticity of the disputed Allonge and any endorsement thereon, and such has not already been produced, such shall be produced within fourteen (14) days from the date of this Order.

(Doc. # 277 at 3).

On November 5, 2012, Bank of America filed its Notice of Compliance verifying its production of documents to the Maduras, which took place via mail and email. (Doc. # 312). Thereafter, the Maduras filed multiple discovery motions, which the Magistrate Judge addressed in due course. In one such order, the Magistrate Judge explained: "A telephonic hearing on the above motions [Doc. ## 280, 281, 292, 294, and 299] was conducted on November 14, 2012. The hearing was terminated after twenty minutes because Mr. Madura insisted on talking over the Court." (Doc. # 331 at 2).

Bank of America filed its Motion for Summary Judgment (Doc. # 359) on December 31, 2012. On January 11, 2013, the Maduras filed their "Rule 56(d)(2) Verified Declaration that due to Incompleted Discovery; the Bank's Refusal to Test the Age of its Allonge and Hiding the Acctual Loan Owner they may not Present Facts Essential to Justify Fully Opposition to Bank's Standing upon said Allonge in Response to the Bank's Motion for Summary Final Judgment (Doc. # 359)." Therein, the Maduras submit, "We, pursuant to rule 56(d)(1)(2)(3), move this Court for an Order: deferring considering the Bank's motion for summary final judgment or denying it due to incomplete discovery and/or allow to test the Allonge at issue to allow appropriate time to conclude set forth above discovery and avoid manifest injustice of foreclosure their homestead on the basis of forged or not authentic documents." (Doc. # 381 at 3-4).

Rule 56(d), Fed. R. Civ. P., states:

When Facts are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.

The Court determines that the Maduras' Rule 56(d) declaration is deficient and otherwise moot. In their declaration, the Maduras indicate that they cannot respond to Bank of America's Motion for Summary Judgment until their "pending discovery motions" (Doc. ## 347, 355) are decided. The record, however, reflects that both Doc. # 347 and Doc. # 355 are motions for reconsideration of prior discovery motions that were decided by the Magistrate Judge.

Both of the motions for reconsideration have been denied. Specifically, the Magistrate Judge denied Doc. # 347 on January 11, 2013 (Doc. # 378), and denied Doc. # 355 on February 14, 2013 (Doc. # 386). The Maduras responded to Bank of America's Motion for Summary Judgment on March 26, 2013, a month after Doc. # 355 was decided and two months after Doc. # 347 was decided. The Court did, in fact, wait until each and every discovery dispute was finally resolved before turning to its summary judgment analysis and the Maduras were not required to file their response to Bank of America's Motion for Summary Judgment until such motions were resolved. Thus, the Court determines that the Maduras' Rule 56(d) combined declaration and request is moot.

Furthermore, the Court also points out that the Maduras' Rule 56(d) declaration falls short of the Eleventh Circuit's requirements, as enunciated in Reflectone, Inc. v. Ferrand Optical Co., Inc., 862 F.2d 841 (11th Cir. 1989):

Rule 56[d] specifically addresses the question of summary judgment before discovery has taken place. The party opposing summary judgment may move the court to permit the discovery necessary to oppose the motion. The party seeking to use rule 56[d] may not simply rely on vague assertions that additional discovery will produce needed, but unspecified, facts, but rather he must specifically demonstrate how the postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact.

Id. at 843. Furthermore, in Harbert International v. James, 157 F.3d 1271 (11th Cir. 1998), the court expounded upon the requirements for relief under Rule 56(d), Fed.R.Civ.P., as follows:

A Rule 56[d] motion must be supported by an affidavit which sets forth with particularity the facts the moving party expects to discover and how those facts would create a genuine issue of material fact precluding summary judgment. Whether to grant or deny a Rule 56[d] motion for discovery requires the court to balance the movant's demonstrated need for discovery against the burden such discovery will place on the opposing party.

Harbert, 157 F.3d at 1280 (internal citations omitted).

The Court notes that the aforementioned cases discuss what was previously Rule 56(f); however, the Rules have been renumbered and reworded. Nevertheless, Reflectone and its progeny are still dispositive of the Court's Rule 56(d) analysis. See Ashmore v. Secretary, 503 F. App'x 683, 686 (11th Cir. 2013)(citing Reflectone and denying a Rule 56(d) request made after the discovery deadline).

Here, the Maduras bring their Rule 56(d) declaration well after the expiration of the discovery deadline and fail to point to a specific item of evidence that they seek. Nor do the Maduras explain how any specific item of evidence that will assist them in defending against Bank of America's Motion for Summary Judgment. As was the case in Ashmore, the Court determines that it is not appropriate to grant additional discovery at this late juncture, inter alia, based on the interests of judicial economy, because Bank of America will be prejudiced by additional discovery as it has already filed its motion for Summary Judgment, and because the Maduras have had ample opportunity to bring their discovery concerns to the Magistrate Judge prior to the expiration of the discovery period.

VII. Conclusion

Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and compels judgment as a matter of law. For factual issues to be considered genuine, they must have a real basis in the record. Because the Maduras are proceeding pro se, this Court has evaluated their submissions liberally. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)(noting that pro se litigants' submissions are held to a "less stringent standard" than those drafted by attorneys and therefore should be liberally construed). Nevertheless, the Maduras are not excused from meeting their burden during the summary judgment stage of the case. See Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990) (noting that although "[w]e must view factual inferences favorably toward the nonmoving party and pro se complaints are entitled to a liberal interpretation by the courts, we hold that a pro se litigant does not escape the essential burden under summary judgment standards of establishing that there is a genuine issue as to a fact material to his case in order to avert summary judgment"). The Maduras have not met their burden here. The undisputed facts show that the Maduras' RESPA claims as asserted in the Amended Complaint are meritless and not supported by an iota of evidence.

As to Bank of America's Foreclosure Counterclaim, the Maduras have raised 70 defenses, yet not a single defense is supported in fact by the evidence. The Court has evaluated the evidence in the light most favorable to the Maduras, nonetheless, Bank of America has demonstrated that it is entitled to the remedy of foreclosure as a matter of law.

In light of the foregoing, the Court grants summary judgment in favor of Bank of America as outlined above and directs Bank of America to submit a proposed final judgment of foreclosure for use by the Court within ten days of the date of this Order.

Accordingly, it is hereby

ORDERED, ADJUDGED, and DECREED:

(1) Bank of America, N.A.'s Motion for Summary Judgment (Doc. # 359) is GRANTED.
(2) The Maduras' Motion to Strike the Affidavit of "Brieranne Siriwan Attempting to Support Bank of America's Motion for Final Summary Judgment" (Doc. # 393) is DENIED.
(3) The Maduras' "Rule 37(c) Emergency Verified Motion to Exclude Affidavit of Brieanna Sirivan and Certain Exhibits in the Bank's Statement of Undisputed Facts" (Doc. # 437) is DENIED.
(4) The Maduras' "Emergency Verified Motion to Strike and/or Exclude Never Delivered to Closing Forged and Inadmissible as Hearsay Adjustable Rate Note Attached to the Bank of America's NA (Bank) Motion for Final S.J. and a Motion for Imposing Sanction in Form of Dismissal and/or denying the Bank's Motion for Final Summary Judgment due to the Bank's Attempt to Commit Fraud upon the Court" (Doc. # 441) is DENIED.
(5) The Maduras' "Motion for Partial Summary Judgment as to Issue of Bank of America NA Lack of Standing to Foreclose" (Doc. # 415) is DENIED.
(6) Bank of America's Motion in Limine to Strike or Exclude the Forensic Document Examination Reports of Thomas Vastrick (Doc. # 454) is GRANTED.
(7) The Maduras' "Motion for Leave to File a Response to the Bank's Summary Judgment Arguments as to Amended Complaint Filed as (Doc. 77-2) in Response to the Court's Order (Doc. 476)" (Doc. # 480) is DENIED.
(8) The Maduras' "Motion to Strike, or in Alternative, to Exclude Amended Complaint (Doc. 477-2) filed in Bank of America NA (Bank) Notice of Filing Documents (Doc. 477) in Alleged Response to the Court's Order (Doc. 476) as
Not Responsive to the Said Order" (Doc. # 482) is DENIED AS MOOT.
(9) The Maduras' "Motion this Court Deny Bank of America NA Request this Court to Take Judicial Notice From Small Claim Court Amended Complaint Due to the Bank's Willful and Repeat Direct Violation of the Court's Order (Doc. 467) and Fla. And Fed. R. Civ. Pr., and for an Order to Show Cause Why Sanctions Should not be Imposed for the Bank's Attempts to Mislead the Court" (Doc. # 487) is DENIED.
(10) Bank of America is directed to submit a proposed form of Final Judgment to the Court within TEN DAYS of the date of this Order.

DONE and ORDERED in Chambers, in Tampa, Florida, this 17th day of July, 2013.

_____________

VIRGINIA M. HERNANDEZ COVINGTON

UNITED STATES DISTRICT JUDGE
Copies: All Counsel and Parties of Record