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No.

14-15375-BB

IN THE UNITED STATES COURT OF APPEALS


FOR THE ELEVENTH CIRCUIT

ABDIEL ECHEVERRIA and ISABEL SANTAMARIA

Plaintiffs-Appellants
v.

BANK OF AMERICA, N.A., URBAN SETTLEMENT SERVICES d/b/a


URBAN LENDING SOLUTIONS and CARLISLE & GALLAGHER
CONSULTING GROUP, INC.
Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR


THE MIDDLE DISTRICT OF FLORIDA

APPELLANTS’ REPLY BRIEF

Abdiel Echeverria Isabel Santamaria


XXXXXXXXXXX XXXXXXXXXXX

April 14, 2015 Pro se Plaintiffs-Appellants


Abdiel Echeverria, et al v. Bank of America, N.A., et al
No. 14-15375-BB

CERTIFICATE OF INTERESTED PARTIES AND


CORPORATE DISCLOSURE STATEMENT

Pursuant to Eleventh Circuit Rule 26.1, the following is an alphabetical list

of the trial judge, attorneys, persons, firms, partnerships, and corporations with any

known interest in the outcome of this appeal:

 Antoon, John II, United States District Judge


 Baker, David A., United States Magistrate Judge
 Bank of America, N.A., Defendant – Appellee
 Carlisle & Gallagher Consulting Group, Inc., Defendant – Appellee
 Carlisle, Thomas G. – Owner/Shareholder of Carlisle & Gallagher Consulting

Group, Inc.
 Conway, Anne C., Chief United States District Judge
 Cox, Kevin W., Attorney for Defendant – Appellee Urban Settlement Services
 Dickey, Alex P., Shareholder holding 10% of more stock of Carlisle &

Gallagher Consulting Group, Inc.


 Duthiers, Tricia J., Attorney for Bank of America, N.A.

i
 Echeverria, Abdiel, Plaintiff – Appellant
 Engle, Meghan D., Attorney for Defendant – Appellee Carlisle & Gallagher

Consulting Group, Inc.


 Farley, Richard L., Attorney for Carlisle & Gallagher Consulting Group, Inc.
 Holland & Knight Law Firm
 Katten Muchin Rosenman LLP
 Kelly, Gregory J., United States Magistrate Judge
 Levine, Joshua R., Attorney for Defendant-Appellee Bank of America, N.A.
 Liebler, James R., Attorney for Bank of America, N.A.
 Mendoza, Carlos E., United States District Judge
 Parrino, Marc T., Attorney for Defendant – Appellee Bank of America, N.A
 Provenzale, Michael S., Attorney for Carlisle & Gallagher Consulting Group,

Inc.
 Sanders, Charles (“Chuck”), Owner and CEO of Urban Settlement Services

d/b/a Urban Lending Solutions


 Santamaria, Isabel, Plaintiff – Appellant
 Serradet, Sahily, Attorney for Defendants – Appellee Bank of America, N.A.

ii

 Soles, Gary Robert, Attorney for Defendant – Appellee Carlisle & Gallagher
 UrbanLink Corporation, as parent company of Defendant Urban Settlement

Services d/b/a Urban Lending Solutions


 Urban Settlement Services d/b/a/ Urban Lending Solutions, Defendant

– Appellee.
iii

TABLE OF CONTENTS

Page(s)

CERTIFICATE OF INTERESTED

PERSONS AND DISCLOSURE STATEMENT …………………………...i, ii, iii

TABLE OF CONTENTS…...................................................................................iv

TABLE OF AUTHORITIES..................................................................................vi

INTRODUCTION...................................................................................................1

I. ARGUMENT..................................................................................................2

A. The Appellees’ Argument For Res Judicata Fails As A Matter Of Law..

………………………………………………………………….2
1. Fraud Vitiates All Judgments.....................................................2

2. Appellee Bank of America, N.A., Urban Settlement Services

d/b/a Urban Lending Solutions and Carlisle & Gallagher

Consulting Group, Inc. Conspired In Concealing Necessary

Parties.......................................................................................9

3. Florida Courts and Other Courts Have Consistently Defied Res

Judicata When Continuous Actions And Alleged Violations and

Notifications Occur...........................................................11

iv

Page(s)

4. The Appellees’ Privity Defense Does Not Exclude Them

From Individual Responsibility.

………………………....…….

……14

B. Defendants Fail To Address The Material Facts and Divert

Attention of the District Court……………………………..

……..…19
1. The District Court Ignored Plaintiffs’ Claims Of

Discovery Abuse.……………………...………...

……………………….19

2. All Appellees Are Responsible For Fraudulent Concealment.

………………………………………………………….

…….24

3. All Appellees Committed Intentional Misrepresentations

And Conspired To Defraud the Appellants……….

……………….26

II. CONCLUSION............................................................................................27

III. CERTIFICATE OF COMPLIANCE............................................................29

IV. CERTIFICATE OF SERVICE.......................................................................30

TABLE OF AUTHORITIES

Boyce’s Executors v. Grundy (1830) 28 U.S. 210….................................................5

Capital Bank v. Needle, 596 So.2d 1134, 1138 (Fla. 4th DCA 1992).....................11
Carmine v. Bowen, 64 A. 932…..............................................................................26

Colon-Millin v. Sears Roebuck De Puerto Rico, Inc., 455 F.3d 30, 37 (1st

Cir. 2006) ……………...

………………………………………………………………..5

De Louis v. Meek, 2 Ia. 55 (footnote)……………………………………..

………..5

Fair v. Tampa Electric Co., 27 So. 2d 514, 515 (Fla. 1946) (footnote)....................3

Haeger v. Goodyear Tire and Rubber Co., No. CV-05-02046-RHX-ROS

(D. Ct. Ariz., Nov. 8, 2012)………………………………………………….

……………22

Hazel-Atlas Glass Co. v, Hartford-Empire Co., 322 U.S. 238 (1944)

…………….2

Israel Discount Bank Ltd. v. Entin, 951 F.2d 311, 314 (11th Cir.1992)

…………..4

Jackson Law Office, P.C. v. Chappell, 327 SW2d 15 at 27......................................5

Kent v. Ricards, 3 Md.Ch. 392 (footnote)

…………………………………………5

Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960)...................................1

Libhart v. Copeland 949 SW2d 783, 794................................................................5

Martin v. Automobili Lamborghini Exclusive, Inc.,307 F.3d at 1336 n. 2................6


Nudd v. Burrows (1875) 91 U.S. 416........................................................................5

vi

Parker v. Parker, 950 So. 2d 388, 391 (Fla. 2007) (footnote)..................................3

Pearce v. Olney, 20 Conn. 544 (footnote)

…………………………………………5

Riehle v. Margolies, 279 U.S. 218, 225 (1929).........................................................2

Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980) ………………..

……22

Singleton v. Greymar Assocs., 882 So.2d 1004, 1008 (Fla.2004)...........................11

Smith v. Lowry, 1 Johns. (N.Y.) Ch. 320 (footnote) ………………………...

……..5

Southern Development Co. v. Silva, 125 U.S. 247, 8 S.Ct. 881, 31 L.Ed.(1887)...26

Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 272

F.R.D. 350,

359 (W.D.N.Y. 2011)..............................................................................................21

Star Funding Solutions, LLC v. Krondes, 101 So.3d 403, 403 (Fla. 4th DCA 2012)

……………………...……………………………………………………………..11

United States v. Throckmorton 98 U.S. 61 (1878) (footnote)

………………….….5
U.S. Bank Nat'l Ass'n v. Bartram, 140 So.3d 1007, 1014 (Fla.

5th DCA 2014)….11

U.S. v. Prudden, 424 F.2d 1021, 1032

……………………………………………26

U.S. v. Tweel, 550 F.2d 297, 299 …………………………………………..

……..26

Vargas v. Pelt, 901 F. Supp. at 1579…...................................................................6

Wierich v. De Zoya, 7 Ill. 385(footnote) …………………………………..

………5

Zocaras v.Castro, 465 F.3d at 485…........................................................................6

vii

RULES Page(s)

Fed. R. Civ. P. 19…...................................................................................................9

Fed. R. Civ. P. 26(a)……………………………………………..……………20, 21

Fed. R. Civ. P. 26(a)(1)(A)......................................................................................20

Fed. R. Civ. P. 26(e) ………………………………………………………….20, 21

Fed. R. Civ. P. 32(a)(7)(B)(iii)...............................................................................29

Fed. R. Civ. P. 37.....................................................................................................22

Fed. R. Civ. P. 37(c) ………………………………………………...………..20, 21


Fed. R. Civ. P. 37(c)(1)...........................................................................................21

Fed. R. Civ. P. 60 (b) (footnote)...............................................................................8

LOCAL RULES

Eleventh Circuit Rule 26.1…...................................................................................i

SECONDARY SOURCES

American Jurisprudence 2d (footnote).....................................................................5

Black’s Law Dictionary............................................................................................3

Freeman On Judgments..........................................................................................20

Rules of Professional Conduct................................................................................23

Wells Res Adjudicata (footnote)...............................................................................5

viii
INTRODUCTION

In a strained attempt to dilute their massive fraud and concealment and to

escape liability for the flagrant harm committed against the Appellants, the

Appellees/Defendants offer this court an incorrect view of the facts of this case.

The Appellees once again try to escape responsibility via res judicata and privity

and continue to evade the “on-going” acts committed against the Appellants and

the concealed facts, evidence and necessary parties in prior litigation.


In sum, the co-conspirators request that this court ignore the important facts

which include their on-going illegal behavior and their blatant misconduct,

misrepresentations, violations of discovery rules and their continued efforts to

conceal material information from the Appellants of this current action. The

Appellees expect that this appellate court affirm without careful scrutiny the

district court’s erroneous order dismissing the Appellants’ case.

I. ARGUMENT

A. The Appellees’ Argument For Res Judicata Fails As A Matter Of Law.

The Supreme Court has rules and affirmed the principle that, "Justice

must satisfy the appearance of justice." Levine v. United States, 362 U.S. 610, 80

S.Ct. 1038 (1960).

In the present case, Appellants had no choice but to amend their state court

complaint, thereby creating a basis for federal jurisdiction and adding more

evidence and events that transpired. The Appellees mutually evade and try to divert

the court’s attention from anything that would substantiate the Appellants’ current

claims or the fraud they have committed in the district court and against the

Appellants. For the reasons explained below, res judicata does not apply to the

current action.
1. Fraud Vitiates All Judgments.

The United States Supreme Court has stated for at least ninety years that

only “in the absence of fraud or collusion” does a judgment from a court with

jurisdiction operate as res judicata. Riehle v. Margolies, 279 U.S. 218, 225 (1929).

Fraud encompasses a broad range of human behavior, including anything

calculated to deceive. Plainly, honesty and intellectual integrity are essential

components of judicial character. Judicial character is important in America. No

fraud is more odious than an attempt to subvert the administration of justice.

Hazel-Atlas Glass Co. v, Hartford-Empire Co ., 322 U.S. 238

(1944).

In practice, fraud embraces all the multifarious means that human ingenuity

can devise for one person to gain an advantage over another by false suggestion or

suppression of the truth. No final, invariable rule can be laid down in defining

fraud—according to Black’s Law Dictionary, the act of fraud includes surprise,

trick, cunning, and a range of unfair ways by which people are cheated. The only

boundaries are those that limit human knavery.


When a party challenges the preclusive effect of a previously obtained

judgment based upon the winner’s fraud, courts often begin by asking what kind of

fraud the loser alleges. A common distinction courts draw is between extrinsic and

intrinsic fraud. The Florida Supreme Court defines extrinsic fraud as:

[T]he prevention of an unsuccessful party [from] presenting his case, by


fraud or deception practiced by his adversary; keeping the opponent away
from court; falsely promising a compromise; ignorance of the
adversary about the existence of the suit or the acts of the plaintiff;
fraudulent
representation of a party without his consent and connivance in his defeat;
and so on1.

A judgment can be made void due to fraud when one of the parties had

concealed facts that affect the other party's rights. The district court ignored the

Appellants’ claims of fraud (and didn’t even address it) committed by the

Appellees in prior litigation and ignored a key component in law by the U.S.

Supreme Court, the highest court in the nation, which states that fraud would

vitiate (or in other words destroy) the judgment or dismissal. Fraud was indeed

committed in the procurement of the judgments.

"Res judicata bars a subsequent action if: (1) the prior decision was

rendered by a court of competent jurisdiction; (2) there was a final judgment on


1Parker v. Parker, 950 So. 2d 388, 391 (Fla. 2007) (quoting Fair v. Tampa Electric Co., 27 So. 2d 514, 515 (Fla.
1946).

3
the merits; (3) the parties were identical in both suits; and (4) the prior and

present causes of action are the same." Israel Discount Bank Ltd. v. Entin, 951

F.2d 311, 314 (11th Cir.1992). These factors have not been fully met for the

purpose of res judicata in this current action.

A case is resolved “on the merits” when it is resolved accurately, on the

basis of the law and the facts2. How can any prior claim be resolved “on the

merits” when fraud tainted prior judgments and the court relied on falsities and

concealment to issue a judgment in favor of Appellee Bank of America? In

addition, Urban and Carlisle & Gallagher were not defendants in any prior case but

they should have been. Therefore, the parties are not identical in this current action.

“In all these cases3 and many others which have been examined, relief has been

granted on the ground that, by some fraud practiced directly upon the party seeking

relief against the judgment or decree, that party has been prevented from

presenting all of his case to the court4.”


2When referring to a judgment, decision or ruling of a court based upon the facts presented in evidence and the law
applied to that evidence. A judge decides a case "on the merits"when he/she bases the decision on the fundamental
issues and considers technical and procedural defenses as either inconsequential or overcome.

3 Wells, Res Adjudicata, sec. 499; Pearce v. Olney, 20 Conn. 544; Wierich v. De Zoya, 7 Ill. 385; Kent v.
Ricards, 3 Md.Ch. 392; Smith v. Lowry, 1 Johns. (N.Y.) Ch. 320; De Louis v. Meek, 2 Ia. 55.

44 United States v. Throckmorton 98 U.S. 61 (1878).


“Fraud destroys the validity of everything into which it enters.” Boyce’s

Executors v. Grundy (1830) 28 U.S. 210. “Fraud vitiates everything it touches.”

Nudd v. Burrows (1875) 91 U.S. 416.

“No court in this land will allow a person to keep an advantage which he has

obtained by fraud. No judgment or a court, no order of a minister, can be allowed

to stand if it has been obtained by fraud. Fraud unravels everything. ……..fraud

vitiates all transactions5, and if taken for a fraudulent purpose to carry out a

fraudulent scheme, such action is void and of no force or effect whatever,

equality will compel fair dealing, disregarding all forms and subterfuges, and

looking only to the substance of things.” Jackson Law Office, P.C. v. Chappell, 327

SW2d 15 at 27 citing Libhart v. Copeland 949 SW2d 783, 794.

A party commits “Fraud Upon the Court” where clear and convincing evidence

demonstrates that:

“a party has sentiently set in motion some unconscionable scheme calculated

to interfere with the judicial system’s ability impartially to adjudicate a

5 37 Am Jur 2d, Section 8, states, “Fraud vitiates every transaction and all contracts.
Indeed, the principle is often stated, in broad and sweeping language, that fraud
destroys the validity of everything into which it enters, and that it vitiates the most
solemn contracts, documents, and even judgments.”

5
matter by improperly influencing the trier or unfairly hampering the

presentation of the opposing party’s claim or defense.” Vargas v. Pelt,

901 F. Supp. at 1579.

While dismissal for Fraud Upon the Court most commonly results from

fabricated evidence, 11th Circuit Courts have also found Fraud Upon the Court

where a party wrongfully conceals the identity of the real party in interest in the

case. In Zocaras v.Castro, the 11th Circuit upheld a dismissal for Fraud Upon the

Court where the Plaintiff had filed suit under a false name and “proceed[ed] with

that deception right up to trial.” Zocaras, 465 F.3d at 485. In Martin v. Automobili

Lamborghini Exclusive, Inc., the 11th Circuit upheld a dismissal for Fraud Upon

the Court where the litigants had engaged in substantial misconduct which

included:

1) misleading the court about the real party in interest in the case;

6
2) engaging in extensive discovery abuse to obstruct revelation of the

known falsities in the complaint or documents;


3) using letters threatening class-action litigation to extort

settlement offers without any intention of filing a case, and;


4) filing with the court many documents where the signatures of lawyers

were forged. Martin v. Automobili Lamborghini Exclusive, Inc.,307 F.3d at


1336 n. 2.

How could the Appellants/Plaintiffs conduct a proper trial or conduct proper

litigation or even deposition of employees of which Appellee Bank of America

was concealing their true identity even during discovery? What challenges would

the Appellants have faced when they asked these so-called Bank of America

employees who they worked for, their tasks and their employment address to only

find out later that the employees were told to lie by the defendants? Would they

have revealed their true employer, title, job description, place of employment, etc.

in trial when the Plaintiffs were not prepared? This is a serious matter and if the

district court failed to see the consequences of these co-conspirators’ criminal

actions, then we can assume that the rules or the law are biased in favor of high-

ranking blue-collar criminals who pervert the course of justice.

In prior litigation, the Plaintiffs/Appellants specifically named employees

who “affirmatively” worked for Bank of America or Bank of America’s Office of

the CEO and President and held specific titles such as “Customer Advocate” and
affirmed employment at specific Bank of America locations according to mailings

received and misrepresented facts to the Plaintiffs and others.

It is safe to say that according to this Circuit’s case law specified above,

BANA6 concealed the identity of real parties right up until judgment was rendered

in their favor and beyond. The Appellees concealed from the court the true

identities of these employees and concealed parties of interest since the inception

of litigation in December 2010 until it was revealed in December of 2013.

The Plaintiffs attacked the procurement of the fraudulent judgment 7 and dismissal

by separate action (Appellants’ Appendix Vol. 2, Amended Complaint Doc. 47 and

Appendix Vol. 4, Second Amended Complaint, Doc. 60) which is on the record.

The Plaintiffs also demonstrated on the record that they offer clear and

convincing proof that the evidence and facts8 underlying the previous judgment

and dismissal was indeed fabricated or concealed to their detriment.

6 Even though Bank of America (BAC) was not the Plaintiff, same rule applies to both Plaintiffs
and Defendants in regards to Fraud Upon The Court.

7 See FRCP Rule 60 (b).

8 See Appellants’ Appendix, Vol. 1, Judicial Notice, Doc. 40; Vol. 3, Judicial Notice, Doc. 55; and Judicial Notice,
Doc. 57.

8
Clearly, res judicata’s factors have not been met by the Appellees and the

Appellees’ fraud would void any prior judgment.

2. Appellee Bank of America, N.A., Urban Settlement Services


d/b/a Urban Lending Solutions and Carlisle & Gallagher
Consulting Group, Inc. Conspired In Concealing Necessary
Parties.

When seeking summary judgment, the movant must state that he knows of

no other compelling reason why there should be a trial and that “no facts remain”.

This statement may be made in the application notice or supporting evidence but,

in each case, should be verified by a statement of truth or declaration. Appellee

BANA. filed such a document in the district court9 in requesting summary

judgment. There was definitely a dishonest concealment of suppressed facts and

evidence that impeded the Appellants to properly litigate any prior action.

Necessary parties are “[p]ersons who ought to be parties if complete relief is to be

accorded between the persons who are parties to the action or who might be

inequitably affected by a judgment in the action”. Fed. R. Civ. P. 19 clearly states

that a “required party” is:

9 Case No. 6:10-cv-01933-JA-DAB, Doc. 57 & 58.

9
“A person who is subject to service of process and whose joinder will not
deprive the court of subject-matter jurisdiction must be joined as a party if:

(A) in that person's absence, the court cannot accord complete relief
among existing parties; or

(B) that person claims an interest relating to the subject of the action and
is so situated that disposing of the action in the person's absence may:

(i) as a practical matter impair or impede the person's ability to protect


the interest; or

(ii) leave an existing party subject to a substantial risk of incurring


double, multiple, or otherwise inconsistent obligations because of the
interest”.

Appellants have maintained throughout this current action that Appellee

Urban Settlement Services (Urban Lending Solutions) and Appellee Carlisle &

Gallagher Consulting Group, Inc. should have been required/necessary parties in

prior claims. Unbeknownst to the Appellants, the Appellees’ employees were

directly implicated in past litigation and these employers were “concealed” by

Appellee BANA and it is now clear as to why. Unbeknownst to the Appellants,

Bank of America (“BANA”) contracted these entities who in turn trained these

employees to directly deceive the Appellants, other governmental and federal

parties involved and other homeowners for their financial gain.


10

3. Florida Courts and Other Courts Have Consistently Defied


Res Judicata When Continuous Actions And Alleged Violations
and Notifications Occur.

To demonstrate that res judicata is “double standard” and not strictly or

properly applied at times, we shall analyze repetitive “foreclosure” filings within

the state of Florida as an example: “[T]he doctrine of res judicata does not

necessarily bar successive foreclosure suits, regardless of whether or not the

mortgagee sought to accelerate payments on the note in the first suit.” Singleton v.

Greymar Assocs., 882 So.2d 1004, 1008 (Fla.2004). This is because “[a] new

default, based on a different act or date of default not alleged in the dismissed

action, creates a new cause of action.” Star Funding Solutions, LLC v. Krondes,

101 So.3d 403, 403 (Fla. 4th DCA 2012) (citing Singleton, 882 So.2d at 1005).

Accordingly, the holding applies even where the prior action was adjudicated

on the merits. See Singleton, 882 So.2d at 1007 (citing Capital Bank v. Needle,

596 So.2d 1134, 1138 (Fla. 4th DCA 1992)); cf. U.S. Bank Nat'l Ass'n v. Bartram,

140 So.3d 1007, 1014 (Fla. 5th DCA 2014) (holding that a subsequent default

creates a new cause of action for statute of limitations purposes even where a prior

case was dismissed on its merits). Appellee Bank of America, N.A. has often

benefited by this res judicata “double standard” in repetitive cases against the
11
same parties, seeking the same relief, same subject, same actions and the same

facts after prior dismissal.

It is justifiable for the courts to give a pass to criminal banks on res judicata

and allow multiple foreclosure actions on the same property against the same

parties with the same claims and the same injuries by using “different dates” of

acceleration as an excuse for new causes of action but it is not okay for the

Appellants in this case to bring up new dates, fraud claims, proof of concealment

and fraud upon the court. If the same privilege were to apply to the Appellants in

this action, new causes of action would also be in effect including but not limited

to fraudulent mailings in 2013 (different dates) which included another fraudulent

loan modification package from BANA using their puppet JMA, fraudulent debt

collection efforts10 and foreclosure notices in 201311 which would then also make

10 During prior litigation and after, Defendant Bank of America (and possibly Urban and CGCG, who
really knows who is who anymore) continued to send fraudulent “Office of the CEO and President”
mailings to the Plaintiffs and for other investigations conducted in 2013 and 2014 by the OCC and
CFPB for which the Plaintiffs and all those implicated relied on these mailings not knowing the true
nature of such to their detriment. The Plaintiffs also received “notices” with misrepresentations in 2013
and 2014. These occurrences happened AFTER any prior action.

11 Appellants Appendix, Vol. 1, Original State Court Complaint, Doc. 2, Exhibit I and Vol. 2, Amended Complaint,
Doc. 47, Exhibits E & F.

12
the same rule applicable in this current action to avoid res judicata. Wouldn’t

subsequent regulatory complaints filed by the Appellants against Appellee BANA

which resulted in further misrepresentations by the Appellees also bar the

application of res judicata here? Wouldn’t these new communications that the

Appellants filed on the record attached to their complaints and as judicial notices

also create new causes of action not barred by res judicata? Other than the fact

that fraud vitiates judgments, wouldn’t these other factors also be applicable to

the case at hand? Wouldn’t repetitive monthly false and inaccurate reports to

credit bureaus by Bank of America also be new “on-going” injuries and

violations?

The Appellees not only concealed material facts and evidence in prior litigation

but also committed subsequent violations against the Appellants with no regard of

the severe injuries and damage they had already caused and continued to cause. If

fraudulent banks and their minions have been given loopholes and opportunities to

avoid res judicata, then why are the victims in this case not given the same

courtesy? Did the big bad banks who destroyed the economy with fraud and greed

“purchase” this privilege? If this is the law to assist banks and corporations such as

the Appellees to avoid the application of res judicata then it should also benefit the

Appellants. Aren’t repetitive filings for “foreclosures” also within the same nucleus

of operative facts? Again, if the fraudulent banks are afforded this luxury to avoid
res judicata, why would it not apply to the instant action which also included

evidence of violations and fraudulent communications that continued to occur?

13

It is fundamental that no man should be allowed to take advantage of his

own fraud as the Defendants/Appellees have in this case and in prior cases.

Suppose a man secures an adjudication by fraud. Which principle is to govern?

Shall the resolution of the law be that the judgment must stand because it is a thing

adjudicated or must the very decision be declared void, because it is tainted with

fraud? If the first conclusion is reached, a man may take advantage of his own

fraud. If the second, the principle of res judicata must admit of exceptions. So far,

the district court has allowed the Appellees to jointly take advantage of their fraud.

Rewarding fraud is against all that this country’s judicial system stands for.

Allowing and rewarding any criminal person or entity to perpetrate a fraudulent

scheme in which its victim’s claims have been substantiated by evidence with the

intention to deprive another of property (and due process12) which also resulted in a

12 The Fifth and Fourteenth Amendments to the United States Constitution contain a due process
clause. Due process deals with the administration of justice and thus the due process clause acts as a
safeguard from arbitrary denial of life, liberty, or property by the Government outside the sanction of law.

14
long-term financial loss to its victims and long-term physical harm, is a crime all in

itself.

4. The Appellees’ Privity Defense Does Not Exclude Them


From Individual Responsibility.

As “independent contractors” and independent companies, Urban and

Carlisle & Gallagher are contracted by several companies and receive

compensation for their services. They conduct these services in their own facilities,

pay their own employees’ wages and conduct supervision and training of their own

employees.

The employee-independent contractor distinction can be significant in other

respects as well. For example, if an independent contractor is considered to be an

“employee” by the Internal Revenue Service or the Department of Labor, the

company can be responsible for additional taxes, wages, overtime pay, etc. under

federal laws and regulations implemented by those agencies. Are Urban and

CGCG responsible for their own employees’ taxes, wages, overtime pay, insurance

and benefits or BANA?


Is it to be believed that Urban and CGCG and their employees can act

recklessly injuring the Appellants and others and not be liable for their reckless

behavior?

Since Urban’s and CGCG’s actual employees were also directly implicated

15

in causing harm to the Plaintiffs/Appellants, they cannot fall under the privity

umbrella and try to piggy-back their way out of their own responsibility for the

harm caused. Urban and CGCG have openly admitted to being “contracted” by

Appellee BANA and by others to perform services and are independent employers

themselves who hire and supervise their own employees. Urban and CGCG are

fully capable of making their own decisions for the benefit of their company and

are in control of the performance of their employees. If they were requested by

BANA to train their employees to commit illegal activities and injure others as a

result, they could have refused to enter said contract or to do so. BANA did not

hire these Urban or CGCG employees or provide them a paycheck. BANA is not

their employer or master. Urban and CGCG is the employer and master of their

own employees and committed these acts by their own free-will.


BANA is responsible/liable for its employees, Urban is responsible/liable for

its employees and Carlisle & Gallagher is responsible/liable for its employees.

Even if Urban and Carlisle & Gallagher want to falsely call themselves an

employee or agent, they cannot escape their own individual responsibilities as

separate entities.

16

However, Bank of America, Urban nor Carlisle & Gallagher have ever been

penalized for the fraudulent acts that their employees perpetrated against the

Appellants with the intent to defraud and injure them. All of these “individual”

employers (BANA, Urban, CGCG) were responsible for the actions of their

employees during the hours they were employed and for instructing them to do so.

Urban and CGCG never showed-face for the acts committed by their own

employees in prior litigation.

The co-conspirators’ employees committed these fraudulent acts under the

instructions of their own employers and for the monetary benefit of their own

employers. The type of work that these employees were hired to do was indeed
fraudulent with the purpose of deceiving homeowners and the government and

many employees were named individually by the Appellants and exhibits were

filed to substantiate these claims13. Their individual employers (BANA, Urban,

CGCG) were in fact responsible for their hiring, wages, training and supervision.

These employees consistently and fraudulently held titles and positions that were

deceptive to the Appellants’ detriment. These employees misrepresented who they

actually worked for and even went as far as misrepresenting the department

Appellee BANA concealed in prior actions and during discovery that these

employees were not in fact their own. These employees were to represent their own

employers Urban and Carlisle & Gallagher in prior actions, not Bank of America.

At all times prior, the Appellants unknowingly referred to all of these employees as

employees of Bank of America when many were not. The Appellants had no

knowledge of their true identities or the scheme and fraudulent actions perpetrated

against them by these other individual entities to their detriment.

Urban and CGCG should have been joined in previous suits. Unbeknownst

to the Appellants, Urban and CGCG have both claimed an interest relating to the

13 See Appellants’ Appendix, Vol. 1, Original Complaint, Doc. 2 (Exhibits J-L)


17
subject of the action14, because realistically, these companies could have been

liable when their own individual employees were specifically named in the prior

action in which they directly assisted in injuring the Appellants. Secondly, if an

action would have successfully been brought against theses concealed companies,

this might allow the plaintiff a double recovery (or the potential for

one). Generally, courts hold that an issue that could be brought up but

“voluntarily” isn’t, is waived, and thus has been given a full and fair opportunity

to have been heard on its merits. The Appellants were not given this option

because they did not have the “full and fair opportunity” to litigate and/or

voluntarily bring up or omit these issues because they were concealed along with

these necessary defendants.

This "Conspiracy" perpetrated on the Appellants would not have succeeded

without the participation of all conspirators.

B. Defendants Fail To Address The Material Facts and Divert


Attention of the District Court.

1. The District Court Ignored Plaintiffs’ Claims Of


Discovery Abuse.

14 Even though Urban and CGCG have both now claimed interest in previous actions between the Appellants and
Bank of America (BAC), no “Certificate of Interested Persons and Corporate Disclosure Statements” (see
Appellants’ Appendix, Vol. 1, Doc. 40) filed with the District Court by Appellee Bank of America ever disclosed
this interest and instead concealed these interested parties even though they should have been joined to prior claims.

18
i. The Appellees Violated Discovery Rules, Intimidated The
Appellants and Yet Were Rewarded For Their Misconduct.

The Appellants were clearly victims of “discovery abuse” in prior and in

current litigation. Discovery abuse takes a variety of forms including evasive

discovery responses, boilerplate objections to written discovery, the failure to

produce responsive documents, and even making misrepresentations. Such conduct

is directly contrary to the very purpose of discovery: to ensure that lawsuits are

decided by what the facts reveal, not by what facts are concealed.

19

Fed. R. Civ. P. 37(c) sanctions apply to failures to disclose information

required by Rule 26(a), as well as to failures to supplement discovery responses in

accordance with Rule 26(e). The automatic exclusion sanction of material not

disclosed pursuant to Rule 26(a) was added by the 1993 amendments to the rule. In

2000, a subsequent amendment made the same remedy available for material that
should have been disclosed in discovery responses. Rule 26(a) lists “mandatory”

disclosures that must be made even in the absence of a request from the opposing

party. These disclosures include the identification (names) of witnesses and

documents that may be used to support the disclosing parties’ claims or defenses,

computations of damages, and insurance agreements. Fed. R. Civ. P. 26(a)(1)(A).

In addition, Rule 26(e) imposes a duty to supplement a Rule 26(a) initial

disclosure or a response to an interrogatory “in a timely manner if the party learns

that in some material respect the disclosure or response is incomplete or incorrect.”

Fed. R. Civ. P. 26(e); Colon-Millin v. Sears Roebuck De Puerto Rico, Inc., 455 F.3d

30, 37 (1st Cir. 2006) (“[A] party must supplement its answers to interrogatories if

the party learns that the response is in some material respect incomplete or

incorrect and the other party is unaware of the new or corrective information.”).

20

Rule 37(c) enforces the disclosure requirements imparted by Rule 26. Rule

37(c) states, in relevant part:

“If a party fails to provide information or identify a witness as required by


Rule 26(a) or (e), the party is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.”

Defendant /Appellee Bank of America did not even disclose names as

required15. Did BANA feel that they needed to comply with these rules. No, they

did not. BANA’s attorney clearly stated in an email dated September 10, 2014 after

three (3) weeks of the Appellants seeking the disclosures that they do not ‘believe’

that in disclosing corporate representatives a party is required to designate the

representative by name in its initial disclosures 16.

The sanction is intended to provide “a strong inducement for disclosure” of

material that the disclosing party would expect to use as evidence, whether at trial,

at a hearing, or on a motion. Fed. R. Civ. P. 37(c)(1) advisory committee’s notes to

1993 amendment; see also Star Direct Telecom, Inc. v. Global Crossing

Bandwidth, Inc., 272 F.R.D. 350, 359 (W.D.N.Y. 2011) (“If the Federal Rules of

Civil Procedure are to be effective and meaningful, parties should not be permitted

to conceal potential sources of responsive information in the hope that the

15 See Appellant’s Appendix, Volume 4 “Plaintiffs’ Motion to Compel”, Doc. 69 and Appellants’
Appendix, Volume 5, “ Plaintiffs’ Objection to Order Granting Motion to Stay”, Doc. 83.

16 Also provided in Plaintiffs’ Motion to Compel.

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opposing party does not discover their deliberate omission until the discovery

deadline has expired.”).

The Supreme Court has noted that Rule 37 sanctions must be applied

diligently both to penalize those whose conduct may be deemed to warrant such a

sanction and to deter those who might be tempted to engage in such conduct in the

absence of a deterrent. Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980).

Did the district court compel discovery from Appellee Bank of America for

violating discovery rules and for using their disclosures to intimidate the

Appellants instead? No.

Because discovery is a search for the truth, the rules of discovery are

designed to serve the ends of justice by facilitating an intensive search by

providing procedural mechanisms designed to make a trial a fair contest with the

basic issues and facts disclosed to the fullest practicable extent. "Litigation is not a

game. It is the time-honored method of seeking the truth, finding the truth, and

doing justice." Haeger v. Goodyear Tire and Rubber Co., No. CV-05-02046-RHX-

ROS (D. Ct. Ariz., Nov. 8, 2012) (Silver, J.), p. 1.

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Together, the rules of civil procedure in both state and federal court, along

with the Rules of Professional Conduct17 serve to secure fairness in the trial

process by deterring deliberate discovery misconduct and by providing a remedy

if misconduct nevertheless occurs.

Courts and lawyers have the authority and tools to prevent discovery abuse. Courts

have the discretion to issue sanctions including orders of default, establishing facts

for the purpose of the pending case, costs and attorney's fees. The

Plaintiffs/Appellants made it known to the district court of these abuses and instead

their Motion to Compel Discovery18 was denied and their evidence of said abuse

and allegations were ignored by the district court.

The Appellees impeded discovery and as an “obstruction” tactic, they filed a

Motion to Stay which was fraudulently used to avoid answering the Appellants’

Interrogatories (Appellants’ Appendix, Vol. 5, Doc. 83).

Ultimately, the fraudulent and malicious behavior was rewarded.

17 See Rules of Professional Conduct, Rule 4.1(a)(b); Rule 8.4 Misconduct.

18 See Appellants’ Appendix Volume 4, “Plaintiffs’ Motion To Compel”, Doc. 69 and Appellants’ Appendix,
Volume 5, “Plaintiffs’ Objection To Motion To Stay Order”, Doc. 83.

23
No “Motion to Exclude Evidence” was ever filed by Defendant Bank of

America in prior litigation and no such motion was filed in this current action by

any Appellee.

2. All Appellees Are Responsible For Fraudulent Concealment.

Generally, the following elements must be present to prove fraudulent

concealment:

- A material fact was concealed or suppressed.

- The party who concealed the information did so to induce a false belief.

- The information could not have been discovered through a reasonable


inquiry or inspection.

- The concealment caused the plaintiff to act differently than if the


information had been disclosed.

- The concealment caused harm to the plaintiff.

Usually fraudulent concealment of facts which, if known at the trial, would

have prevented the judgment is ground for relief19.

The Plaintiffs demonstrated due diligence even after the judgment in favor of Bank

of America, in that they discovered the concealed fraud as soon as might

19 Freeman on Judgments, 5th Ed. Vol. 3, Sec. 1234, p. 2571.

24
“reasonably” have been expected and shortly after everyone else discovered it as

well. The district court erroneously believes that the Appellants are more

knowledgeable than countless attorneys or investigative sources by stating that this

concealed fraud should have been discovered previously. Not even avid attorneys

defending their clients (homeowners) or investigators were able to “crack the

code” of this fraud until mid 2013 and late 2013 when employee whistleblowers

surfaced and soon after the fraudulent Bank of America Office of the President

scam surfaced months later as a result. Even though flattering, it is obviously

ridiculous that the Appellants, pro se plaintiffs with limited financial resources and

investigative means, could have discovered this fraud even with due diligence long

before anyone else did and especially when relying on misrepresentations by

BANA in prior litigation.

The Appellees withheld relevant and necessary information from the

Appellants at all times, even during litigation. The Appellees deceived the

Appellants during discovery and had a duty to disclose pertinent facts and other

perpetrators relevant to the case.

"Silence can only be equated with fraud where there is a legal or moral duty

to speak, or where an inquiry left unanswered would be intentionally

25
misleading. . . We cannot condone this shocking behavior……" U.S. v. Tweel, 550

F.2d 297, 299. See also U.S. v. Prudden, 424 F.2d 1021, 1032; Carmine v. Bowen,

64 A. 932.

3. All Appellees Committed Intentional Misrepresentations


And Conspired To Defraud the Appellants.

In Southern Development Co. v. Silva, 125 U.S. 247, 8 S.Ct. 881, 31 L.Ed.

(1887), the U.S. Supreme Court defined the legal elements of a civil fraud as

follows:
• The defendant has made a representation in regard to a material fact.
• The representation was false
• The defendant knew the representation was false
• The representation was intended to provoke an action by the plaintiff
• The plaintiff suffered damage as a result
• In acting, the plaintiff reasonably assumed the representation was true.

In all fraud cases, the prosecution or plaintiff must prove that a false

statement was intentional and part of a deliberate scheme to defraud. A person

intentionally makes a false statement if it is his desire to cause the social harm, or

26
if he acts with knowledge that the social harm will almost certainly result from his

actions. In some instances, particularly those involving civil actions for fraud and

securities cases, the intent requirement is met if the plaintiff is able to show that

the false statements were made recklessly—that is, with complete disregard for

truth or falsity. That is definitely the case here.


The Plaintiffs/Appellants in this current action were able to show the

malicious scheme to defraud them perpetrated by ALL named Defendants.

Defendants Urban and Carlisle & Gallagher were very willing to comply in this

fraudulent scheme and to injure the Plaintiffs.

II. CONCLUSION

For all the reasons set forth herein, this Court should reverse or void the

Orders entered by the district court granting the Defendants-Appellees Motion to

Dismiss. All other matters and motions wrongfully decided by the district court

should also be reversed. The Appellants strongly believe that this current action

would be of interest to the U.S. Supreme Court given that the district court

disregarded the Supreme Court’s stance on fraud and constitutional rights and how

thousands of others were affected by the Appellees’ scheme. The district court’s

decision should be reversed and remanded for further proceedings.

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Respectfully submitted,

Abdiel Echeverria – Pro se Appellant


XXXXXXXXXXXXXXXXXX

Isabel Santamaria – Pro se Appellant


XXXXXXXXXXXXXXXXXXXXX

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III. CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)

I hereby certify that my word processing program, Microsoft Word, counted

6, 971 words in the foregoing brief, inclusive of the portions excluded by Rule 32(a)

(7)(B)(iii).
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IV. CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing brief

with priority mail postage has been furnished by U.S. Mail on this date on the

following counsel:

Joshua R. Levine
Leibler, Gonzalez & Portuondo
44 West Flagler Street
Courthouse Tower, 25th Floor
Miami, Florida 33130
Telephone: (305) 379-0400
Facsimile: (305) 379-9626

Richard L. Farley
Katten Muchin Rosenman, LLP
550 S. Tyron Street, Suite 2900
Charlotte, NC 28202-4213
Telephone: (704) 344-3062
Facsimile: (704) 344-3040

Kevin Cox
Holland & Knight
314 South Calhoun Street
Suite 600
Tallahassee, Florida 32301
Telephone: (850) 425-5626
Facsimile: (850) 224-8832

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