Deutsche Bank

Judge David Hittner Sanctions Foreclosure Defense Lawyers, Only for the Erie Guess He Relied Upon to be Error

The Lane Law Firm and several of its attorneys were sanctioned by Judge David Hittner for the Priester case, an erie guess, which was later reversed by the Texas Supreme Court.

LIT COMMENTARY

The Lane Law Firm and several of its attorneys were sanctioned (Rule 11) by Hittner for the Priester case. As it turned out the Priester case precedent was overturned by the Texas Supreme Court. We’ve not been able to find any sanctions for any creditor rights firms in S.D. Tex by Hittner or any other judge(s). The bias is pervasive by Hittner. LIT has documented the Priester case previously.

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ORDER OF SANCTIONS

 

BACKGROUND

A.                 The June 9, 2014 Dismissal Orders

On June 9, 2014, the Court issued the following five orders: (1) In civil action number H-13-861, an order dismissing Plaintiff Barney A. Gonzalez Ill’s (“Gonzalez”) claims against Defendant Bank of America, N.A. (“Bank of America”); (2) In civil action number H-13-1028, an order dismissing Plaintiffs Jeffery K. Hayman and Deborah M. Hayman’s (the “Haymans”) claims against Bank of America; (3) In civil action number H-13-2576, an order dismissing Plaintiff Norma Calidonio’s (“Calidonio”) claims against Defendant Deutsche Bank National Trust Company (“Deutsche Bank”); (4) In civil action number H-13-2929, an order dismissing Plaintiff Judy Jack’s (“Jack”) claims against Deutsche Bank; and (5) In civil action number H-14- 1074, an order dismissing Plaintiff Gyorgy B. Torok’s (“Torok”) claims against Defendants Wells Fargo Bank, N.A. (“Wells Fargo”) and Ocwen Loan Servicing, LLC (“Ocwen”). All five of these cases were dismissed because the causes of action brought by Gonzalez, the Haymans, Calidonio, Jack, and Torok (collectively, “Plaintiffs”) against Bank of America, Deutsche Bank, Wells Fargo, and Ocwen (collectively, “Defendants”) were barred by the applicable statute of limitations.

In these five cases, Plaintiffs had alleged exactly the same causes of action against Defendants for violations of the Texas Constitution, breach of contract or to enforce contract, and quiet title, all based on alleged violations of article 16, section 50(a)(6) of the Texas Constitution. However, in February 2013, the Fifth Circuit in Priester v. JP Morgan Chase Bank, NA held a four-year statute of limitations “applies to constitutional infirmities under Section 50(a)(6)” of the Texas Constitution.  Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 673-74 (5th Cir. 2013).

Despite Priester, in the five cases pending before this Court identified supra and numerous other cases throughout the Southern District of Texas, attorneys with The Lane Law Firm, contending Priester is not controlling, continued to assert causes of action based on alleged violations of section 50(a)(6) of the Texas Constitution that were barred by the statute of limitations. 1

Attorneys with The Lane Law Firm appealed dismissal of one such case, Moran v. Ocwen Loan Servicing, L.L.C., to the Fifth Circuit. Moran v. Ocwen Loan Servicing, L.L.C., No. 13-20242, 2014 WL 1193510 (5th Cir. Mar. 24, 2014) (per curiam).

The Lane Law Firm represented Plaintiffs in these five cases as well as the plaintiff in Moran. Consequently, the petitions in these five cases were substantially similar to the petition in Moran.2 Also, the arguments raised by Plaintiffs

Nevertheless, after the Fifth Circuit issued its opinion in Moran, attorneys with The Lane Law Firm filed supplemental briefing in each of the five cases herein arguing the Fifth Circuit’s Erie guess in Priester was “wrong,” advocating the four-year statute of limitations does not apply to Plaintiffs’ causes of actions, and never mentioning

Petition and Request for Disclosures at 5-15, Hayman v. Bank oj Am., N.A., No. H-13-1028 (S.D. Tex. June 9, 2014), ECF No. 1, Attachment 1; Original Petition and Request for Disclosures at 2-13, Calidonio v. Deutsche Bank Nat ‘l Trust Co., No. H-13-2576 (S.D. Tex. June 9, 2014), ECF No. 1, Attachment 3; Original Petition and Request for Disclosures at 6-16, Jackv. Deutsche BankNat’l Trust Co., No. H-13-2929 (S.D. Tex. June 9, 2014), ECF No. 1, Attachment 1; and Original Petition and Request for Disclosures at 6-17, Torok v. Wells Fargo Bank, N.A., No. H-14-1074 (S.D. Tex. June 9, 2014), ECF No. 1, Attachment 1; with Original Petition and Request for Disclosures at 3-14, Moran v. Ocwen Loan Servicing, LLC, No. 4:13-cv-670 (S.D. Tex. Apr. 25, 2013), ECF No. 1, Exhibit 1.

1 E.g., Wohlfahrt v. Deutsche Bank Nat’/ Trust Co., No. G-14-54 (S.D. Tex. May 27, 2014), ECF No. 15 (Froeschner, Mag.) (report and recommendation); Taylor v. U.S. Bank Nat’! Ass ‘n,  No. H-13-3783,  2014  WL  1703936  (S.D. Tex. Apr. 29, 2014) (Lake,  J.); Martinezv. Bank oj NY. Mellon Trust Co., No. H-14-321 (S.D. Tex. Apr. 4, 2014), ECF No. 20 (Rosenthal, J.); McKeehan v. Citimortgage, Inc., No. H-13-3765 (S.D. Tex. Mar. 13, 2014), ECF No. 15 (Atlas, J.); Pilson v. U.S. Bank Nat’/ Ass ‘n, No. 4:13-cv-3204 (S.D. Tex. Mar. 13, 2014), ECF No. 15 (Ellison, J.); Skinnerv. Wells Fargo Bank, N.A., No. H-13-2613, 2013 WL 5781244 (S.D. Tex. Oct. 25, 2013) (Werlein, J.); Ausmus v. Deutsche Bank Trust Co. Nat’/ Ass ‘n, No. 3:13-CV-148, 2013 WL 3938515 (S.D. Tex. July 29, 2013) (Costa, J.).

2 Compare Original Petition and Request for Disclosures at 6-17, Gonzalez v. Bank oj Am., N.A., No. H-13-861 (S.D. Tex. June 9, 2014), ECF No. 1, Attachment  l; Original in these five cases were substantially similar to the arguments raised in Moran.3 On March 24, 2014, the Fifth Circuit in Moran reaffirmed Priester, affirming that causes of action based on alleged violations of section 50(a)(6) of the Texas Constitution are subject to a four-year statute of limitations. Moran, 2014 WL 1193510, at *1-3.

3 Compare Plaintiffs Response to Defendant’s Motion for Judgment on the Pleadings, Gonzalez v. Bank oj Am., N.A., No. H-13-861 (S.D. Tex. June 9, 2014), ECF No. 14; Plaintiffs’ Response to Defendant’s Motion for Summary Judgment, Hayman v. Bank oj Am., N.A., No. H-13-1028 (S.D. Tex. June 9, 2014), ECF No. 15; Plaintiffs Response to Defendat’s Motion to Dismiss, Calidonio v. Deutsche Bank Nat’! Trust Co., No. H-13-2576 (S.D. Tex. June 9, 2014), ECF No. 6; Plaintiffs Response to Defendant’s Rule 12(c) Motion for Judgment, Jack v. Deutsche Bank Nat’! Trust Co., No. H-13-2929 (S.D. Tex. June 9, 2014), ECF No. 18; and Plaintiff Gyorgy B. Torok’s Response to Defendants’ Motion to Dismiss Under Rule 12(b)(6), Torok v. Wells Fargo Bank, NA., No. H-14-1074 (S.D. Tex. June 9, 2014), ECF No. 11; with Plaintiffs’ Response to Defendants’ Motion to Dismiss for Failure to State a Claim, Moran v. Ocwen Loan Servicing, LLC, No. 4:13-cv-670 (S.D. Tex. Apr. 25, 2013), ECF No. 6; and Moran v. Ocwen Loan Servicing, L.L.C., No. 13-20242, 2014 WL 1193510 (5th Cir. Mar. 24, 2014).

Moran.4 Attorneys with The Lane Law Firm filed the supplemental briefing m Gonzalez’s case on May 23, 2014, in the Haymans’ case on May 27, 2014, m Calidonio’s case on May 23, 2014, in Torok’s case on May 21, 2014, and in Jack’s case on May 22, 2014. The supplemental briefing filed in all five of these cases is almost identica l.5 Therefore, the supplemental briefing in all five of these cases will hereinafter be referred to collectively as the “Supplemental Briefing.”

B.                 The Show-Cause Order and Hearing

Contemporaneously with the Court’s June 9, 2014 dismissal orders, the Court sua sponte issued a show-cause order pursuant to Federal Rule of Civil Procedure 11, ordering Robert Chamless Lane (“Lane”), Anh Thu N. Dinh (“Dinh”), and Thomas Barta (“Barta”) (collectively, “Plaintiffs’ Attorneys”) to show cause why they did not violate Rule 11 and should not be sanctioned. Specifically, the Court ordered Plaintiffs’

4 Plaintiffs Supplement to Response to Defendant’s Motion for Judgment on the Pleadings, Gonzalez v. Bank oj Am., NA., No. H-13-861 (S.D. Tex. June 9, 2014), ECF No. 18; Plaintiffs’ Supplement to Response to Defendant’s Motion for Summary Judgment, Hayman v. Bank of Am., NA., No. H-13-1028 (S.D. Tex. June 9, 2014), ECF No. 19; Plaintiffs Supplement to Response to Defendant’s Motion to Dismiss, Calidonio v. Deutsche Bank Nat’/ Trust Co., No. H-13-2576 (S.D. Tex. June 9, 2014), ECF No. 15; Plaintiffs Supplemental Response to Defendant’s 12(c) Motion for Judgment, Jack v. Deutsche Bank Nat’/ Trust Co., No. H-13-2929 (S.D. Tex. June 9, 2014), ECF No. 26; Plaintiff Gyorgy B. Torok’s Supplement to Response to Defendants’ Motion to Dismiss Under Rule 12(b)(6), Torok v. Wells Fargo Bank, NA., No. H-14-1074 (S.D. Tex. June 9, 2014), ECF No. 15.

Attorneys “to show cause why Plaintiffs’ petitions and briefing in response to Defendants’ motions (1) were not presented to cause unnecessary delay and (2) asserted claims warranted by existing law or by a nonfrivolous argument for reversing existing law, including, but not limited to, how the briefing did not purposefully mislead the Court in light of the Fifth Circuit’s decision in Moran.” 6 A show-cause hearing was held on June 18, 2014. Plaintiffs’ Attorneys appeared at the hearing. All Plaintiffs’ Attorneys are employed by The Lane Law Firm.

5 The supplemental briefing in Gonzalez’s, the Haymans’, Calidonio’s, and Torok’s cases are entirely identical and signed by the same attorney. The supplemental briefing in Jack’s case, which is signed by a different attorney, is worded slightly differently, yet it raises substantively identical arguments and contains no relevant differences.

LAW & ANALYSIS

Federal Rule of Civil Procedure 11 provides a court may sua sponte sanction an attorney or law firm that presents to the court a written motion or other paper if the legal contentions therein are not warranted by existing law or by a nonfrivolous argument for modifying existing law or establishing new law. FED. R. CIV. P. 1 l(b )(2), (c)(1), (c)(3). Thus, the Court must determine (a) whether a Rule 11 violation occurred in these five cases and, if so, (b) who violated Rule 11 or was responsible for the Rule 11 violation, and (c) what sanction is appropriate.

6 Show-Cause Order, Gonzalez v. Bank oj Am.,  NA., No. H-13-861  (S.D.  Tex. June 9, 2014), ECF No. 24; Show-Cause Order, Hayman v. Bank oj Am., NA., No. H-13-1028 (S.D. Tex. June 9, 2014), ECF No. 25; Show-Cause Order, Calidonio v. Deutsche Bank Nat’! Trust Co., No. H-13-2576 (S.D. Tex. June 9, 2014), ECF No. 18; Show-Cause Order, Jack v. Deutsche Bank Nat’! Trust Co., No. H-13-2929 (S.D. Tex. June 9, 2014), ECF No. 29; Show-Cause Order, Torok v. Wells Fargo Bank, NA., No. H-14-1074 (S.D. Tex. June 9, 2014), ECF No. 18.

1.  Whether the Legal Contentions in the Supplemental Briefing Were Warranted by Existing Law

In the Supplemental  Briefing,  Plaintiffs’  Attorneys  contended  that  the Fifth Circuit’s Erie guess in Priester “quickly” turned out “wrong” and that “PRIESTER IS DEAD.”7 However, the Fifth Circuit in Moran had reaffirmed Priester just two months before Plaintiffs’ Attorneys filed the Supplemental Briefing.8 Thus, Priester is in no way dead. Priester-as reaffirmed by Moran-clearly rendered all of Plaintiffs’ claims barred by the statute of limi tations.9 The contention in the Supplemental Briefing that the four-year statute oflimitations does not apply to Plaintiffs’ causes of actions was not warranted by the law as it existed when the Supplemental Briefing was filed.

Further, Plaintiffs’ Attorneys did not cite or otherwise reference Moran in the Supplemental Briefing. At the show-cause hearing, Plaintiffs’ Attorneys said they did not cite to Moran because it was an unpublished opinion and because it upheld the holding and reasoning of Priester. However, given that The Lane Law Firm represented Plaintiffs in these five cases and the plaintiff in Moran, the petitions in these five cases were substantially similar to the petition in Moran,10 and the arguments in these five cases were substantially similar to the arguments in Moran,11 Plaintiffs’ Attorneys omission of Moran was misleading. Moreover, it is especially egregious for Plaintiffs’ Attorneys to have not cited Moran in the Supplemental Briefing when they had previously requested that this Court refrain from deciding these five cases until the Fifth Circuit decided the motion to certify in Moran. 1 2 In so doing, Plaintiffs’ Attorneys selectively raised Moran when it was advantageous  to do so, but ignored  Moran when it was disadvantageous to do so. Such conduct was, at minimum, misleading as to the state of the existing law.

7 See sources cited supra note 4 (emphasis in originals). Although the supplemental briefing in Jack’s case did not contain the phrase “Priester is dead” as was contained in Gonzalez’s, the Haymans’, Calidonio’s, and Torok’s cases, the supplemental briefing in Jack’s case made substantially similar arguments that the holding in Priester no longer applies, including stating that “[t]he Fifth Circuit’s guess [in Priester] was quickly shown to be wrong” and that “Norwood and Sims strongly suggest that the Fifth Circuit’s ‘Erie guess’ [in Priester] was incorrect.” Plaintiffs Supplemental Response to Defendant’s 12(c) Motion for Judgment at 4-5, Jack v. Deutsche Bank Nat’l Trust Co., No. H-13-2929 (S.D. Tex. June 9, 2014), ECF No. 26. Therefore, the fact that the supplemental briefing in Jack’s case did not contain the phrase “Priester is dead” is inconsequential to this Court’s sanctions analysis.

Compare  Moran, 2014 WL 1193510 (issued  March 2014), with sources cited supra note 4 (filed May 2014).

9 For further discussion on why all of Plaintiffs’ claims were barred by the statute of limitations, see this Court’s June 9, 2014 orders in these five cases.

10 See sources cited supra note 2.

11 See sources cited supra note 3.

12 Plaintiffs Response to Defendant’s Motion for Judgment on the Pleadings at 1, Gonzalez v. Bank oj Am., N.A., No. H-13-861 (S.D. Tex. June 9, 2014), ECF No. 14; Plaintiffs’ Response to Defendant’s Motion for Summary Judgment at 1-2, Hayman v. Bank oj Am., N.A., No. H-13-1028 (S.D. Tex. June 9, 2014), ECF No. 15; Plaintiffs Response to Defendant’s Rule 12(c) Motion for Judgment at 1-2,Jackv. Deutsche Bank Nat’/ Trust Co., No. H-13-2929 (S.D. Tex. June 9, 2014), ECF No. 18.

2.  Whether the Legal Contentions in the Supplemental Briefing Were Warranted by Nonfrivolous Argument for Modifying Existing Law or Establishing New Law

At the show-cause hearing, Plaintiffs’ Attorneys contended they were advocating for new law. In the Supplemental Briefing, Plaintiffs’ Attorneys contended the Texas Supreme Court cases of Finance Commission of Texas v. Norwood, 418 S.W.3d 566

(Tex. 2013) and Sims v. Carrington Mortgage Services, L.L.C., No. 13-0638, 2014 WL 1998397 (Tex. May 16, 2014) rendered the Fifth Circuit’s Erie guess in Priester wrong. 13

When jurisdiction is based on diversity of citizenship, as it is in these five cases, a federal court must apply state law. Kramer v. JP Morgan Chase Bank, NA., No 13- 50920, 2014 WL 2872905, at *3 (5th Cir. June 25, 2014) (per curiam). When applying state law, the federal court is “bound to apply the law as interpreted by the state’s highest court.” Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 421 (5th Cir. 2001) (internal quotation marks omitted). When the state’s highest court has not ruled, the federal court must “determine as best it can, what the highest court of the state would decide,” which is known as making an Erie guess. Id. (internal quotation marks omitted); Boyett v. Redland Ins. Co., 741 F.3d 604,607 (5th Cir. 2014). “[The Fifth Circuit]’s interpretation of Texas law is binding on the district court, unless a subsequent state court decision or statutory amendment renders [the Fifth Circuit’s] prior decision clearly wrong.” Hughes, 278 F.3d at 421.

13 See sources cited supra note 4.

At minimum, “clearly wrong” means “a contrary ruling squarely on point is required.” F.D.I. C. v. Abraham, 137 F.3d 264, 269 (5th Cir. 1998) (internal quotation marks omitted). Further, the Fifth Circuit is a “strict stare decisis court,” and “[i]t is a well-settled Fifth Circuit rule of orderliness that one panel of [the Fifth Circuit] may not overturn another panel’s decision, absent an intervening change in the law………. ” Id. at 268; Bormio Invs., Inc. v. USBC Bank USA Nat’/ Ass’n, No 13-11311, 2014 WL 2924915, at *2 (5th Cir. June 30, 2014) (per curiam)(quotingJacobs, 548 F.3d at378) (internal quotation marks omitted) (declining to overrule Priester because there had been no change in Texas law since Priester). “Adherence to this rule is no less immutable when the matter determined by the prior panel is the interpretation of state law: Such interpretations are no less binding on subsequent panels than are prior interpretations of federal law.” Kyle v. Circus Circus Miss., Inc., 430 F. App’x 247,251 (5th Cir. 2011) (per curiam) (quoting Abraham, 137 F.3d  at  268)  (internal   quotation  marks  omitted).  “Therefore, a prior panel’s interpretation of state law has binding precedential effect on other panels of this court absent a subsequent state court decision or amendment rendering [the Fifth Circuit’s] decision clearly wrong.” Fordv. Cimarron Ins. Co., 230 F.3d 828,832 (5th Cir. 2000).

The Texas Supreme Court has not yet ruled on the statute of limitations issue in these five cases. See Priester, 708 F.3d at 673. Therefore, the Fifth Circuit in Priester had to decide, by making an Erie guess, what the Texas Supreme Court would decide. See id. at 672-74. In Priester, the Fifth Circuit decided a four-year statue oflimitations “applies to constitutional infirmities under Section 50(a)(6)” of the Texas Constitution. Id. at 674.  This interpretation of Texas law is binding on this Court and other Fifth Circuit panels unless a subsequent Texas state court decision or statutory amendment renders the Fifth Circuit’s decision in Priester clearly wrong.

No aspects of either Norwood or Sims are clearly contrary to Priester. Compare Norwood, 418 S.W.3d at 569-97, and Sims, 2014 WL 1998397, at *1-5, with Priester, 708 F.3d at 671-79. The Texas Supreme Court did not address in either Norwood or Sims whether a four-year statute of limitations applies to violations of section 50(a)(6) of the Texas Constitution. Norwood, 418 S.W.3d at 569-97; Sims, 2014 WL 1998397, at *1-5. Indeed, Plaintiffs’ Attorneys do not argue Norwood or Sims render Priester clearly wrong; rather, they argue that “Norwood and Sims strongly suggest that the Texas Supreme Court believes” a four-year statute of limitations does not apply and that “it can reasonably be inferred that the Texas Supreme Court intends to negate” Priester’s holding. 14 Strongly suggesting and reasonably inferring are not the correct legal standards when contending Priester should be overruled, and such language does not rise to the level of contending that Priester is clearly wrong or that the Texas Supreme Court has issued a contrary ruling squarely on point. In addition, at the show-cause hearing, Plaintiffs’ Attorneys said they are current!y trying to appeal a case on this statue of limitations issue to the Texas Supreme Court. In so arguing, they implicitly acknowledged the Texas Supreme Court has not yet ruled on this issue. Moreover, Norwood was decided before Moran; therefore, by asking the Court to consider whether Norwood rendered Priester clearly wrong, Plaintiffs’ Attorneys were asking the Court to ignore the Fifth Circuit’s interpretation of state law in Moran. Accordingly, no Texas Supreme Court case subsequent to Moran-or even subsequent to Priester-has rendered Priester clearly wrong. Plaintiffs’ Attorneys’ contention that Norwood and Sims rendered Priester wrong was frivolous, and thus their argument for the modification of Priester or for establishment of new law was frivolous.

Furthermore, the frivolity of a legal contention is measured “by the law existing at the time, not the law as it evolves or is amended in subsequent years.” Ozee v. Am. Council on Gift Annuities, Inc., 143 F.3d 937, 941 (5th Cir. 1998). Therefore, even if the Texas Supreme Court rules in the future contrary to Priester, the Supplemental Briefing would still be deemed to be frivolous because Priester controlled at the time the Supplemental Briefing was filed.

In summary, the legal contentions in the Supplemental Briefing were not warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or establishing new law. Accordingly, the Supplemental Briefing violated Rule 11.

14 Plaintiffs Supplement to Response to Defendant’s Motion for Judgment on the Pleadings at 2-3, Gonzalez v. Bank oj Am., N.A., No. H-13-861 (S.D. Tex. June 9, 2014), ECF No. 18; Plaintiffs’ Supplement to Response to Defendant’s Motion for Summary Judgment at 2-3, Hayman v. Bank oj Am., N.A., No. H-13-1028 (S.D. Tex. June 9, 2014), ECF No. 19; Plaintiffs Supplement to Response to Defendant’s Motion to Dismiss at 2-3, Calidonio v. Deutsche Bank Nat’l Trust Co., No. H-13-2576 (S.D. Tex. June 9, 2014), ECF No. 15; Plaintiffs Supplemental Response to Defendant’s 12(c) Motion for Judgment at 5, Jack v. Deutsche Bank Nat’l Trust Co., No. H-13-2929 (S.D. Tex. June 9, 2014), ECF No. 26; Plaintiff Gyorgy B. Torok’s Supplement to Response to Defendants’ Motion to Dismiss Under Rule 12(b)(6) at 2-3, Torok v. Wells Fargo Bank, NA., No. H-14-1074 (S.D. Tex. June 9, 2014), ECF No. 15.

Who Violated Rule 11 or Was Responsible for the Rule 11 Violation

Having determined a Rule 11 violation occurred, the Court must determine who violated Rule 11 or who was responsible for the Rule 11 violation. Rule 11(b) provides an attorney that presents to the court (either by signing, filing, submitting, or advocating) a written motion or other paper certifies such paper complies with Rule 11. FED. R. CIV. 1 l(b).

Rule 11’s “obligations are ‘personal [and] nondelegable.”‘ Worrell, 287 F. App’x at 325 (alteration in original) (quoting Pavelic & LeFlore v. Marvel Entrm’t Grp., 493 U.S.120, 126(1989));seealsoFED.R.CIV.P.11 advisory committee’s note (1993).

As explained supra, the Supplemental Briefing constitutes a paper under Rule 11. Therefore, it was the personal and nondelegable duty of any attorney that signed, filed, submitted, or advocated the Supplemental Briefing to comply with Rule 11’s obligations.

Dinh signed the supplemental briefing in Gonzalez’s, the Haymans’, Calidonio’s, and Torok’s cases.

Barta signed the supplemental briefing in Jack’s case.

Lane’s name is listed first, just under Dinh’s and Barta’s signatures, on all of the Supplemental Briefing as an attorney for Plaintiffs. Lane is also listed as an attorney of record in all five of these cases.

At the show-cause hearing, Lane represented he took responsibility for submission of the Supplemental Briefing in all five of these cases, and he spoke on behalf of himself, Dinh, and Barta. Dinh and Barta said they completely support the statements of Lane.

For these reasons, the Court finds Lane violated Rule 11 with respect to the Supplemental Briefing in all five of these cases.

Dinh violated Rule 11 with respect to the supplemental briefing in Gonzalez’s, the Haymans’, Calidonio’s, and Torok’s cases. Barta violated Rule 11 with respect to the supplemental briefing in Jack’s case.

In addition, Rule 11(c)(1) provides that”[a]bsent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.” FED. R. CIV. P. 11(c)(1).

Dinh, Barta, and Lane are all attorneys with The Lane Law Firm. The Lane Law Firm employs nine attorneys total and regularly handles mortgage foreclosure cases with claims similar to the claims in these five cases.

Pursuant to Rule 11(c)(1), the Court does not find any exceptional circumstances that warrant The Lane Law Firm not being held jointly responsible for the Rule 11 violations committed by Dinh, Barta, and Lane in these five cases.

Therefore, The Lane Law Firm is held jointly responsible for the Rule 11 violations committed by Dinh, Barta, and Lane in these five cases.

What Sanction Is Appropriate

Having determined Dinh, Barta, and Lane violated Rule 11 and The Lane Law Firm is responsible for the Rule 11 violations, the Court may “impose an appropriate sanction” on them. See FED. R. CIV. P. 1 l(c)(l) (“[T]he court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.”). The court has “broad discretion in determining the ‘appropriate sanction.”‘ Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 878 (5th Cir. 1988); see also FED. R. CIV. P. 11 advisory committee’s note (1993). However, “[a] sanction imposed under [Rule 11] must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.” FED. R. CIV. P. l l(c)(4). Thus, the sanction should be the “least severe sanction” that “furthers the purposes of Rule 11.” Jenkins, 478 F.3d at 265. One purpose of sanctions is to deter “the raising of claims that have been considered and rejected repeatedly.” Ozee, 143 F.3d at 941. Rule 11 also “encourages the policy of truth and candor toward the [court].” Spiller v. Ella Smithers Geriatric Ctr., 919 F.2d 339,345 (5th Cir. 1990).

“The court has available a variety of possible sanctions to impose for violations, such as striking the offending paper; issuing an admonition, reprimand, or censure; requiring participation in seminars or other educational programs; ordering a fine payable to the court; [or] referring the matter to disciplinary authorities ” FED. R. CIV.P.11 advisory committee’s note (1993); Thomas, 836 F.2d at 877-78; see also FED. CIV. P. 11(c)(4). Other”innovative approach[es]” include requiring circulation of the court’s opinion throughout the violating attorney’s law firm, making a reprimand public, or instructing the court clerk to place a notation on the admissions record of the violating attorney. See Thomas, 836 F.2d at 878; Jenkins, 478 F.3d at 266; Smith v. Our Lady of theLakeHosp.,lnc., 135F.R.D.139, 155,   l57(M.D.La.   l99l),rev’donothergrounds, 960 F.2d 439 (5th Cir. 1992). When determining what sanction is appropriate, the court may consider, inter alia, “[w]hether the improper conduct was willful or negligent; whether it was part of a pattern of activity, or an isolated event; whether it infected the entire pleading, or only one particular count or defense; whether the person has engaged in similar conduct in other litigation; whether it was intended to injure; what effect it had on the litigation process in time or expense; [and] whether the responsible person is trained in the law.” TXCAT v. Phx. Grp. Metals, LLC, No. H-10-0344, 2010 WL 5186824, at *5 (S.D. Tex. Dec. 14, 2010) (Harmon, J.) (first alteration in original) (quoting FED. R. CIV. P. 11 advisory committee’s note (1993)) (internal quotation marks omitted).

As explained supra, Plaintiffs’ Attorneys continued to advocate that Plaintiffs’ claims were not barred by the statute of limitations when almost identical claims had just been ruled by the Fifth Circuit to have been barred  by statute of limitations-in a case that their own law firm litigated.

Not just one claim amongst other claims were barred by the statute of limitations; rather, all claims brought in all five cases were barred by the statute of limitations.

Also, The Lane Law Firm has similar cases currently pending in this Court and other courts in the Southern District of Texas, including at least one such case filed after the show-cause hearing and one such case with supplemental briefing filed after the show-cause hearing that is substantially similar to the Supplemental Briefing in these five cases.15

Indeed, at the show-cause hearing, Plaintiffs’ Attorneys said they have dozens of similar cases pending in the Southern District of Texas. Therefore, the Court finds sanctions are necessary to deter Plaintiffs’ Attorneys from advocating claims or arguments in the future that have been considered and rejected by the Fifth Circuit.

In addition, as explained supra, Plaintiffs’ Attorneys misled the Court by failing to cite Moran in the Supplemental Briefing. The Court finds sanctions are also necessary to encourage Plaintiffs’ Attorneys to be more truthful and candid in the future. Having determined sanctions are necessary, the Court hereby issues formal sanctions by hereby reprimanding Plaintiffs’ Attorneys and The Lane Law Firm for their Rule 11 violations in this case. Additionally, the Court hereby admonishes Plaintiffs’ Attorneys and The Lane Law Firm that another Rule 11 violation will result in the imposition of more severe sanctions, including, but not limited to, suspension from practice in the Southern District of Texas and/or referral to the Office of the Chief Disciplinary Counsel of the State Bar of Texas.

Because The Lane Law Firm has other similar cases currently pending in the Southern District of Texas, the Court orders the clerk of this Court to forward a copy of this Order of Sanctions to every district judge and magistrate judge in the Southern District of Texas.

In addition, the Court orders The Lane Law Firm to deliver a copy of this Order of Sanctions to each attorney currently employed by The Lane Law Firm. The Lane Law Firm is then to certify to this Court that it has done so.

Lastly, the Court orders the clerk of this Court to place a notation on Plaintiffs’ Attorneys Southern District ofTexas admissions records that formal sanctions have been issued against them.

Such reprimand and admonishment, along with the other aforenamed orders, are appropriate and are the least severe sanctions that further the purposes of Rule 11.

15 E.g., Plaintiffs First Amended Complaint at 1-11, Medellin v. J.P. Morgan Chase Bank, Nat’! Ass’n., No. H-14-1511 (S.D. Tex.), ECF No. 8, Exhibit I (Atlas, J.) (amended complaint filed July 11, 2014); Plaintiffs Sur-Reply to Defendant’s Motion to Dismiss at 1-5, Anthony v. Deutsche Bank Nat’! Trust Co., No. H-13-3283 (S.D. Tex.), ECF No. 16 (Harmon, J.) (supplemental briefing filed July 3, 2014); Plaintiffs Supplement to Response to Defendant’s Motion to Dismiss at I-3,Anthonyv. Deutsche Bank Nat’! Trust Co., No. H- 13-3283 (S.D. Tex.), ECF No. 16 (Harmon, J.)(supplemental briefing); Original Petition and Request for Disclosures at 6-16, Huntv. U.S. Bank, Nat’/ Ass ‘n, No. H-13-3774 (S.D. Tex.), ECF No. 1, Exhibit 1 (Hittner, J.); Original Petition and Request for Disclosures at 2-13, Stewartv. U.S. Bank, Nat’lAss ‘n, No. H-13-3197 (S.D. Tex.), ECF No. 1, Exhibit 5 (Hittner, J.).

CONCLUSION

Based on the foregoing, the Court hereby issues the following formal sanctions:

REPRIMANDS attorneys Robert Chamless Lane, Anh Thu N. Dinh, Thomas Barta, and The Lane Law Firm for violating Rule 11. The Court further

ADMONISHES attorneys Robert Chamless Lane, Anh Thu N. Dinh, Thomas Barta, and The Lane Law Firm that another Rule 11 violation will result in the imposition of more severe sanctions. The Court further

ORDERS the clerk of this Court to forward a copy of this Order of Sanctions to every district judge and magistrate judge in the Southern District of Texas. The Court further

ORDERS The Lane Law Firm to deliver a copy of this Order of Sanctions to each attorney currently employed by The Lane Law Firm and then certify to this Court that it has done so. The Court further

ORDERS the clerk of this Court to place a notation on Robert Chamless Lane’s Southern District of Texas attorney admissions records that formal sanctions have been issued against him in Civil Action Numbers H-13-861, H-13-028, H-13-2576, H-13- 2929, and H-14-1074; to place a notation on Anh Thu N. Dinh’s Southern District of Texas attorney admissions records that formal sanctions have been issued against her in Civil Action Numbers H-13-861, H-13-028, H-13-2576, and H-14-1074; and to place a notation on Thomas Barta’s Southern District of Texas attorney admissions records that formal sanctions have been issued against him in Civil Action Number H-13-2929.

SIGNED at Houston, Texas, on this 5    day of August, 2014.

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Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

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