1

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION



ABDIEL ECHEVERRIA and
ISABEL SANTAMARIA

Plaintiffs, CASE NO: 6:14-cv-00486-JA-GJK



BANK OF AMERICA, N.A., URBAN
SETTLEMENT SERVICES d/b/a URBAN
LENDING SOLUTIONS and CARLISLE & GALLAGHER
CONSULTING GROUP, INC.

Defendants,
_____________________________/


PLAINTIFFS OPPOSITION TO MAGISTRATE JUDGE GREGORY J. KELLYS
REPORT AND RECOMMENDATION (DOC. 68)

Pursuant to Fed. R. Civ. P. 72(b) and Local Rule 6.02, Plaintiffs respectfully object to the
Magistrate Judge Gregory J. Kellys report and recommendation (R&R) (Doc. No. 68) filed
September 23, 2014 and received by the Plaintiffs on September 25, 2014.
INTRODUCTION
The Honorable Magistrate Judge Gregory J. Kelly not only erred in recommending that
the Court grant all named Defendant Motions to Dismiss (Doc.25, 28, & 31) and close the
Plaintiffs claims based on the erroneous grounds of res judicata but it should also be noted that
Magistrate Judge Gregory J. Kelly has demonstrated a clear and convincing bias and prejudice
2

against the Plaintiffs mainly due to a conflict of interest in this current case for the reasons that
will be more fully expressed below.
STANDARD OF REVIEW

The district judge reviews a magistrate judges report and recommendation de novo. Fed.
R. Civ. P. 72(b)(3). The district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions. Id.
The Supreme Court stated that the authority granted to magistrate judges under the
Federal Magistrates Act is to be construed narrowly. U.S. v. Desir, 257 F.3d 1233, 1236 (11th
Cir. 2001). When a party files timely written objections to a magistrate judge's report, the district
court must "make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. 636(b)(1)(C); see also
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.1991)("De novo review is statutorily and
constitutionally required...."). Furthermore, the magistrate judges order is not final. See Title
28 U.S.C. 636 (b),(c) & 1291; and Perez-Prego v. Alachua County Clerk of Court, 148 F. 3d
1272, 1273 (11th Cir. 1998).
Any party is free to withhold consent to magistrate judge jurisdiction without adverse
consequences. 28 U.S.C. 636(c)(2); Rule 73(b), Fed.R.Civ.P.; Andersonv. Woodcreek Venture
Ltd., 351 F.3d 911, 913-14 (9th Cir. 2003) (pointing out that consent is the "touchstone of
magistrate judge jurisdiction" under 28 U.S.C. 636(c). A party to a federal civil case has,
subject to some exceptions, a constitutional right to proceed before an Article III judge. Dixon
v. Ylst, 990 F.2d 478, 479 (9th Cir. 1993) (citing Pacemaker Diagnostic Clinic of Am. Inc. v.
Instromedix, Inc., 725 F.2d 537, 541 (9th Cir. 1984) (en banc)).
3

Because a District Judge conducting a de novo review of objections to a Magistrate
Judges findings and conclusions may consider the entire record including the exhibits and
judicial notices, the arguments that plaintiffs sought to raise in their reply should also be
considered.
For the sake of brevity, the Plaintiffs do not copy and reargue all their arguments below
but incorporate the prior pleadings into this opposition.
ARGUMENT
A. Magistrate Judge Gregory J. Kelly Has A Conflict Of Interest In The Current Case.
For centuries, impartiality has been a defining feature of the American judges role in the
administration of justice. The reason is clear: in a constitutional order grounded in the rule of
law, it is imperative that judges make decisions according to law, unclouded by personal bias or
conflicts of interest. Accordingly, upon ascending the bench, every federal judge takes an oath to
faithfully and impartially discharge and perform all the duties of judicial office
1
; and the Due
Process Clause of the Fourteenth Amendment to the United States Constitution has been
construed to guarantee litigants the right to a neutral and detached, or impartial, judge
2
.
In this current action, the Plaintiffs face such an issue. First, and foremost, the Report
and Recommendation [Doc. 68] issued by Magistrate Judge Gregory J. Kelly completely evades
and simply does not address in any manner the Plaintiffs allegations of fraud and misconduct
committed by the defendants in prior litigation (see Fed. R. Civ. P. Rule 60(b)). Many times
throughout the Plaintiffs pleadings and responses, they have alleged that the Defendants

1
28 U.S.C. 453.
2
Ward v. Village of Monroeville, 409 U.S. 57 (1972).
4

committed fraud during prior litigation
3
. This allegation of fraud has NEVER been a claim raised
by the Plaintiffs in any prior claim and therefore would be a NEW claim in this current case. Res
judicata would not bar a new claim for fraud that took place AFTER any previous claim.
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). Given the fact that the Defendants
committed fraud against the Plaintiffs and this Court in prior litigation [see Doc. 60, 45-55,
166-172) any prior judgment would not be a factor and would not impede this case from
proceeding to trial. The Plaintiffs have consistently asserted this argument, among others, in
numerous responses and in their complaints.
However, there are multiple reasons for which it is very likely that the Honorable
Magistrate Judge Gregory J. Kelly refused to even mention this fraud argument in his Report: 1).
Plaintiffs allegations of fraud and misconduct by defendants in prior litigation would dismantle
any res judicata defense and allow the current action to proceed and 2). Magistrate Judge
Gregory J. Kelly was a former attorney with Akerman Senterfitt
4
, the law firm who
represented Defendant Bank of America in both prior lawsuits and therefore may implicate his
former employer and colleagues
5
.
In this current action, the Plaintiffs have specifically filed documents that were signed by
Akerman Senterfitt attorneys (See Judicial Notices Doc. 40 & 57). This may directly implicate
Defendant Bank of Americas attorneys (Akerman Senterfitt) in prior litigation against the
Plaintiffs in this current action. This also goes to show that Magistrate Judge Gregory J. Kelly

3
See Doc. 37, 38, 39, 40, 47, 52, 53, 54, 57, 65 & 67.
4
The Honorable Magistrate Judge Gregory J. Kelly was working in the Orlando office of Akerman Senterfitt until
January 11, 2008.
5
See Case no. 6:10-cv-01933-JA-DAB, Doc. 9.
5

did not even look at the Plaintiffs exhibits in this current case even when making his Report and
Recommendation because if he would have done so, he would have not only noticed different
evidence from any prior case but also multiple exhibits filed in this current case
6
as Judicial
Notices signed by Akerman Senterfitt attorneys. His former employers representation is still
at issue in this current case
7
.
Furthermore, magistrate Kelly makes his Report exclusively in favor of all named
defendants even though Defendant BANA did not even oppose the Plaintiffs Second Motion for
Leave to file Amended Complaint (Doc. 60
8
). This odd behavior by Defendant BANA, who is
one of Akerman Senterfitts most represented and profitable clients, is very suspicious and would
leave an average person to believe that Defendant BANA was already aware that this current
action would somehow be wrongfully dismissed. The lack of response to Plaintiffs emails for
three weeks and withholding names in their initial disclosures by Defendant BANA shows
complete lack of concern for a case that is supposed to be in discovery and already referred to
mediation
9
. This is all very concerning behavior and any reasonable person can see that there
is biased behavior in favor of defendant BANA on behalf of Magistrate Judge Gregory J. Kelly
which would explain BANAs odd and nonchalant demeanor
10
.
If the tables were turned, would the Echeverrias (Plaintiffs) have received the same
leniency over and over again as the criminal defendants in this case?

6
See Judicial Notices, Doc. 40 & 57.
7
At the motion-to-dismiss stage, we consider the facts derived from a complaints exhibits as part of the plaintiffs
basic factual averments. See Solis-Ramirez v. U.S. Dept of Justice, 758 F.2d 1426, 1430 (11th Cir. 1985) (per
curiam). See also Fed. R. Civ. P. 10(c).
8
In the Plaintiffs Proposed Second Amended Complaint (Doc. 60, 46, 47, 48, 49, 50, 53, 54, 55, the Plaintiffs
bring upon an independent Rule 60(b) cause of action that represents a direct attack on the prior fraudulent
Judgment(s) of this Court. The practical effect of Fed.R.Civ.P. 60(b) is to lift the bar of res judicata in, e.g., fraud
cases. See Woodrum v. Southern Ry. Co., 750 F.2d 876, 883 (11th Cir. 1985).
9
See Doc. 59.
10
At the time that this Opposition is filed, the Plaintiffs have already submitted their Expert Witness Report to the
Defendants. This case is currently in discovery and referred to mediation. So far, none of the Defendants have
submitted any additional discovery documents except their initial disclosures.
6

Due to the extreme biased nature and conflict of interest which is clearly demonstrated by
Magistrate Judge Gregory J. Kelly in this current action
11
, his Report and Recommendation must
be vacated in its entirety.
B. The Magistrate Judge Disregarded the Plaintiffs Exhibits and Judicial Notices.
([W]hen the exhibits contradict the general and conclusory allegations of the pleading,
the exhibits govern. (citing Assoc. Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir.
1974)). At the motion-to-dismiss stage, we consider the facts derived from a complaints
exhibits as part of the plaintiffs basic factual averments
12
. See Solis-Ramirez v. U.S. Dept of
Justice, 758 F.2d 1426, 1430 (11th Cir. 1985) (per curiam). In evaluating the Motion, the facts
stated in . . . [the] complaint and all reasonable inferences there from are taken as true. Stephens
v. Dept. of Health and Human Servs. 901 F.2d 1571, 1573 (11th Cir.1990).
In making his Report and Recommendation, not once did Magistrate Judge Kelly refer to
the Plaintiffs exhibits which include compelling NEW evidence of Plaintiffs NEW claims
including their claims of on-going fraud which includes fraud committed against them during
prior litigation.
Not once did Magistrate Judge Kelly refer to any of the Plaintiffs Judicial Notices that
include computer entries [Doc. 55] which proves how the Plaintiffs records were manipulated
by the Defendants as part of this fraudulent scheme as the Plaintiffs have claimed in their
complaints. Judge Kelly also refused to address this claim in which the Plaintiffs have alleged
these new claims. The Plaintiffs gladly invite the Court to view all prior records to see if these

11
See 28 U.S. Code 455 - Disqualification of justice, judge, or magistrate judge.

12
See Fed. R. Civ. P. 10(c).
7

computer entries [Doc. 55] have ever been entered into evidence into a prior case involving the
Plaintiffs.
Judge Kelly also did not address the Bloomberg investigation that the Plaintiffs submitted
as Exhibit A attached to all of their complaints [Doc. 2, 47 & 60] in which the Plaintiffs in this
case were featured in this investigation. During this investigation, the Plaintiffs became aware of
Bank of Americas FARCE Office of The CEO and President and how Bank of America
used this fraudulent office staffed with fraudulent companies who were contracted to mislead the
Plaintiffs and governmental agencies as a decoy and to perpetrate a fraudulent scheme, and this
is what this suit is about, NOT about a loan modification. The Plaintiffs have no desire in an
artifice loan modification that never existed in the first place and that was only used to lure them
into default and foreclosure. The Plaintiffs damages are beyond repair and a faulty loan
modification will not repair these severe issues. In addition, you cannot modify fraud.
As mentioned earlier, there are exhibits filed in this current action that clearly show that
the Defendants concealed necessary defendants, facts and evidence in prior litigation. The
Plaintiffs have not only alleged these NEW claims in their complaints, objections and responses
but have submitted these exhibits in the form of Judicial Notices to substantiate their claims
13
.
Nonetheless, Judge Kelly did not address these exhibits or anything related to the Plaintiffs
claims regarding fraud and misconduct during prior litigation by the defendants.
In page 4 of Judge Kellys R&R, he cites Piper Aircraft Corp,. 244 F.3d 1289, 1296 (11
th

Cir. 2001)..Next, the Court determines whether the claim in the new suit was or could have
been raised in the prior action, if the answer is yes, res judicata applies. The answer is a
resounding NO. Clearly, if Judge Kelly would have seen the exhibits filed in this case and would
have read the Plaintiffs complaints in this current case, which does not have to do with the

13
See Judicial Notices Doc. 40 & 57.
8

failure in acquiring a loan modification, he would have realized that is was impossible for the
Plaintiffs to have brought these current claims in any prior action especially when the Defendants
were concealing material facts and other evidence that was crucial for the Plaintiffs claims.
Judge Kelly also brushes off the fact that Plaintiffs have failed to show on-going fraud
even though they have pled so in their complaints and have recently filed more evidence of
fraudulent interactions with the OCC and false statements by Bank of Americas own
spokesperson Dan Frahm regarding the Plaintiffs in the Bloomberg investigation in which he
falsely stated that the Plaintiffs never submitted documents to the Defendants
14
.
The Plaintiffs have also submitted evidence in this Court regarding fraudulent loan
modification offers through a third party named JMA in 2013
15
which Bank of America utilized
to offer the Plaintiffs a loan modification which we all know does not exist; a deed I lieu of
foreclosure or a short sale and a fraudulent collection of the alleged debt. The Plaintiffs disputed
the debt under the Fair Debt Collection Practices Act and Bank of America never complied
with this dispute. Plaintiffs also alleged in their complaints how defendant BANA contracted
Safeguard to repeatedly harass the Plaintiffs
16
. These were all scenarios that were fraudulently
placed upon the Plaintiffs in which they should not have been in the first place. Before this
scheme started, the Plaintiffs were not in default even though they needed assistance and they
trusted that Defendant BANA, who received billions in tax payer bailout money, would assist
them. Instead, they were targeted and were the victims of this scheme perpetrated by ALL named
Defendants. Nonetheless, Defendant BANA did not address these new claims regarding events
that happened in 2013 in their Motion to Dismiss [Doc. 31] or in any of their responses and

14
See Exhibit F filed with Plaintiffs Second Amended Complaint (Doc. 60) for full written interaction of the
Plaintiffs with the OCC regarding the Defendants in 2014 and Exhibit A also filed with Doc. 60.
15
See Plaintiffs Second Amended Complaint Doc. 60 72-75 and Exhibits B & C filed with Second Amended
Comp.
16
See Plaintiffs Second Amended Complaint Doc. 60 76 & 77.
9

Judge Kelly also refused to address these new on-going events along with the exhibits that
happened AFTER prior litigation in his Report.
It is clear that the Honorable Magistrate Judge Gregory J. Kelly did not review or even
briefly look at the Plaintiffs exhibits filed in this case before making his Report and
Recommendation which is a necessary requirement before granting a motion to dismiss.

C. The Magistrates Report and Recommendation Errs In Recommending That The
Court Dismiss The Plaintiffs Current Case On The Grounds Of Res J udicata
17
.
The Magistrates Report and Recommendation (R&R), asserts that Plaintiffs lawsuit is
based on the same nucleus of facts, a statement which attempts to nullify the new
misrepresentations of the current lawsuit itself. These statements are designed to confuse the
Plaintiffs statements to the District Court Judge and create the impression that the complaint is
based merely on a loan modification and on the servicing of a loan which is a misguided
narrow concept. The Magistrates Report [Doc. 68] misconstrues and diminishes the Plaintiffs
evidence and allegations of fraud committed by the Defendants, not only in other instances after
litigation but also during prior litigation. Magistrate Judge Kelly mistakenly interprets the
doctrine of res judicata as precluding Plaintiffs current claims for the reasons stated below.

1. Fraud committed in prior litigation will not bar Plaintiffs current claims.

17
In Coon v. Georgia Pacific Corporation, 829 F.2d 1563 (11th Cir. 1987), this Court reasoned that a district court
was not improper in refusing to consider a plaintiffs unpled claims, even though those same claims had been
included in her brief and discovery requests (emphasis added).

10

As stated previously,.. only in the absence of fraud
18
or collusion does a
judgment from a court with jurisdiction operate as res judicata. Riehle v. Margolies, 279 U.S.
218, 225 (1929). Again, Judge Kelly did not remotely address this issue which Plaintiffs have
consistently claimed in their pleadings and have even added it as a cause of action in their
Second Amended Complaint
19
. The Plaintiffs have also addressed this fraud in their Responses
to all named Defendants oppositions to their motions for leave to file an amended complaint
20
.
None of the Defendants addressed the evidence of fraud committed during discovery with
notarized documents signed by BANAs litigation specialists and signed and submitted to the
Plaintiffs by Akerman Senterfitt attorneys
21
which ultimately mislead the Plaintiffs.
In addition to what the Plaintiffs have already alleged in their complaints, Defendant
BANAs Motion for Summary Judgment (submitted by Akerman Senterfitt attorneys) for
Echeverria I (Case 6:10-cv-01933-JA-DAB) was obtained fraudulently and BANA even went as
far as asserting this statement in their Motion for Summary Judgment after all the fraud
committed during litigation [Case 6:10-cv-01933-JA-DAB, Doc. 57, pg. 3]:
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party (BANA)

18
FRCP Rule 60(b) provides that the court may relieve a party from a final judgment and sets forth the following six
categories of reasons for which such relief may be granted: (1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly-discovered evidence which by due diligence could not have been discovered in time to move for a
new trial under Rule 59; (3) fraud, misrepresentation, or misconduct by an adverse party; (4) circumstances
under which a judgment is void; (5) circumstances under which a judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the
operation of the judgment. F.R.C.P. Rule 60(b)(1)-(b)(6). To be entitled to relief, the moving party must establish
facts within one of the reasons enumerated in Rule 60(b).
19
See Sec. Amend. Comp. Doc. 60, 166- 172.
20
See Doc. 52, 53, 54.
21
See Judicial Notice, Doc. 57, Exhibit B.
11

bears the burden of establishing that no genuine issues of material fact remain.
Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Defendant BANA misguided the Court to rule in their favor. Many issues of material
facts did remain and were concealed from this Court and the Plaintiffs.
2. Newly discovered evidence will not bar Plaintiffs current claims.

It is an elementary principle of res judicata that a judgment in a prior action does not
have preclusive effect over matters that could not have been litigated in that action. See Fla. Jur.
2d Judgments & Decrees, 139; cf. Lobato-Bleidt v. Lobato, 688 So.2d 431, 434 (Fla. 5th DCA
1997).
Identity of the causes of action is established only when the facts or evidence necessary
to maintain the suit are the same in both actions. Leahy v. Batmasian, 960 So. 2d 14, 17-18
(Fla. 4th DCA 2007), rev. denied, 969 So. 2d 1013 (Fla. 2007) (quoting Tyson v. Viacom, Inc.,
890 So. 2d 1205, 1209 (Fla. 4
th
DCA 2005)). This current actions has NEW evidence and
involves the revelation of necessary parties and misrepresentation of a farce Bank of America
Office of the CEO and President which was staffed by unqualified personnel of these
necessary parties Urban and Carlisle & Gallagher.
The Plaintiffs have already established the numerous exhibits filed with the complaint
and as Judicial Notices that were never part of any prior action. Many of these exhibits contain
information that became relevant due to an investigation in 2013 that revealed the scam
perpetrated by all named defendants against the Plaintiffs and could not have possibly been
known before especially since Bank of America purposely withheld information during
12

discovery in their interrogatories and in their production of documents
22
. In addition, many of
these exhibits were acquired AFTER litigation and as recent as 2013 and 2014. The Plaintiffs
could not have possibly known during prior litigation of mailings and on-going fraud before it
actually happened. Nevertheless, all defendants did not address any of the Plaintiffs exhibits in
their Motion to Dismiss and neither did Judge Kelly in his Report and Recommendation. In order
to dismiss Plaintiffs complaint, it is to be assumed that the Defendants and Magistrate Judge
Kelly would have addressed the Plaintiffs entire complaint given the fact that the exhibits are
indeed part of the complaint itself
23
.
In addition, Plaintiffs have already alleged numerous times that the Defendants have
committed fraud and misconduct against them in prior litigation for which they have already
submitted some exhibits to substantiate their claims. The Plaintiffs have referred to FRCP 60(b)
which also states: FRCP Rule 60(b) provides that the court may relieve a party from a final
judgment and sets forth the following six categories of reasons for which such relief may be
granted: (2) newly-discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under Rule 59. It is clear that the Plaintiffs
could not have discovered this evidence in time, when even conducting discovery and
investigations, the Defendants concealed material facts, evidence and necessary defendants and
actually lied about it in notarized discovery documents. There was no reason at the time for the
Plaintiffs to believe for these documents under oath to be untruthful.
Because neither the Magistrate Judge nor defendants have offered any explanation of the
aforementioned regarding the newly discovered evidence, the record does not support the

22
See Judicial Notice, Doc. 57.
23
See Rule 10(c) of the Federal Rules of Civil Procedure.
13

Magistrate Judges conclusion that the Plaintiffs claims should be dismissed on the grounds of
res judicata.
3. Res judicata extends only to the facts and conditions as they existed at the
time the judgment was rendered.
District courts have thus held that a factual issue on which preclusion is sought must be
identical to one actually decided and a necessary part of the prior determination
24
.
Goodman v. Aldrich & Ramsey Enters., Inc., 804 So. 2d 544, 546-47 (Fla. 2d DCA 2002); see
also Acadia Partners, L.P. v. Tompkins, 673 So. 2d 487, 489 (Fla. 5th DCA 1996); Allstate Ins.
Co. v. A. D. H., Inc., 397 So. 2d 928, 929-31 (Fla. 3d DCA 1981). It is clear that the factual
issues in any prior case are very different to this case and the facts of this case were not the same
to determine any prior judgment which was fraudulent obtained to begin with.
It is an elementary principle of res judicata that a judgment in a prior action does not
have preclusive effect over matters that could not have been litigated in that action. See Fla. Jur.
2d Judgments & Decrees, 139; cf. Lobato-Bleidt v. Lobato, 688 So.2d 431, 434 (Fla. 5th DCA
1997). The doctrine of res judicata does not however bar a cause merely because the actions
arose from the same factual situation Identity of the causes of action
25
is established where
the facts
26
which are required to maintain both actions are identical. Cole v. First Dev. Corp.
Of Am., 339 So.2d 1130, 1131 (Fla.App. 2 Dist.1976); Wu v. Thomas, 863 F.2d 1543, 1548-49
(11th Cir. 1989).

24
Identity of the causes of action is established only when the facts or evidence necessary to maintain the suit are
the same in both actions. Leahy v. Batmasian, 960 So. 2d 14, 17-18 (Fla. 4th DCA 2007), rev. denied, 969 So. 2d
1013 (Fla. 2007) (quoting Tyson v. Viacom, Inc., 890 So. 2d 1205, 1209 (Fla. 4
th
DCA 2005)).
25
Plaintiffs have also asserted new causes of actions including Breach of Fiduciary Duty in which Plaintiffs have
never claimed before. See Sec. Amen. Comp. Doc. 60, 62, 155-159. Judge Kelly did not address this issue in his
R&R.
26
Res judicata extends only to the facts and conditions as they existed at the time the judgment was rendered, at the
time the issues in the first action were made, and to the legal rights and relations of the parties as fixed by the facts
determined by that judgment. See Hialeah Race Course, Inc. v. Gulfstream Park Racing Ass'n, 210 So.2d 750, 753
(Fla. 4th DCA 1968).
14

Res judicata extends only to the facts and conditions as they existed at the time the
judgment was rendered, at the time the issues in the first action were made, and to the legal rights
and relations of the parties as fixed by the facts determined by that judgment. See Hialeah Race
Course, Inc. v. Gulfstream Park Racing Ass'n, 210 So.2d 750, 753 (Fla. 4th DCA 1968).
Judge Kelly asserts that the Plaintiffs current claims must be dismissed on res judicata
because they are based on the same nucleus of facts as their prior claims, the servicing of their
note and the denial of Plaintiffs request for a loan modification (R&R, pg. 9). This
application of res judicata to the Plaintiffs current case is erroneous and judicially unfair to the
Plaintiffs. The servicing of a note or loan is extremely broad
27
. A loan servicer is a financial
institution which reports loan payments, collects the monthly payment and penalties on late
payments, releases liens, makes certain that insurance and taxes are paid and initiates foreclosure
proceedings for loans in default. A loan servicer is also called a mortgage servicer. Mortgage
servicers receive fee income and are paid for these services. The loan servicer can also be a
lender, who owns the loan. Mortgage servicers are the borrower interface, answering questions,
correcting posting errors, and coordinating loan modifications. So many different violations can
occur during the servicing of a loan. To limit the Plaintiffs in this regard and apply res judicata
to the general servicing of a loan is unjust.
As for the application of res judicata regarding the the denial of Plaintiffs request for a
loan modification, that statement is clearly misguided. First, this current claim is not regarding
the Plaintiffs denial of a loan modification. This claim is regarding the malicious scheme
perpetrated against the Plaintiffs which was concealed for quite some time which included a
farce Bank of America Office of the CEO and President staffed by Defendants Urban and

27
In United States v. Felix 503 U.S. 378 (1992), the U.S. Supreme Court ruled: "a[n]...offense and a conspiracy to
commit that offense are not the same offense for double jeopardy purposes.
15

CGCGs unqualified personnel who were on board to mislead the Plaintiffs regarding many
facets of a HAMP modification and intentionally misrepresented statements to governmental
agencies conducting investigations on behalf of the Plaintiffs. These fraudsters (Urban and
CGCG) also maliciously, along with Defendant Bank of America (BANA) manipulated the
Plaintiffs computer entries
28
to reflect incorrect postings, close their file, manipulated records of
calls and non-submission of documents which clearly substantiate the employee affidavits filed
in this court as exhibits which give a telling account of how employees were asked to manipulate
homeowners records to reflect their malicious objective. Judge Kelly clearly forgot to mention
these NEW facts and NEW exhibits in his R&R when making his determination.
Still, as a matter of law, a HAMP loan modification is a contract. The existence of a
contractual remedy allowing one to seek all expected benefits from a breached contract should
not be determinative of the identity of the cause of action for res judicata purposes
29
. Otherwise,
a finding of no breach in a breach of contract action will essentially give the victorious party a
get out of jail free card, enabling that party to subsequently breach without being subject to
legal recourse. U.S. Project Management, Inc. v. Parc Royale East Development, Inc., 861 So.2d
at 77.
The Plaintiffs were victims of an elaborate scheme and through a thorough investigation
provided by a reputable source (Bloomberg) with the capability of conducting such a research,

28
See Judicial Notice, Doc. 55, Plaintiffs Computer Entries from Bank of America.
29
In U.S. Project Management, Inc. v. Parc Royale East Development, Inc., 861 So.2d 74 (Fla. 4th DCA 2003), the
court there recognized that a suit for one breach of contract does not bar a suit for subsequent breaches of the same
contract. Parc Royale involved two separate breaches of the same consulting agreement between a real estate
development firm and a condominium developer. A loan modification is a contract and therefore, subsequent
breaches or violations of that contract will not bar a subsequent suit involving a loan modification or in this case, a
HAMP modification. Parties were concealed and new misrepresentations regarding this loan modification contract
were recently discovered. More than one lawsuit may be brought on the same contract (i.e. loan modification) Inter-
Active Services, Inc. v. Heathrow Master Association, Inc., 809 So. 2d 900, 902-04 (Fla. 5th DCA 2002).

16

the Plaintiffs were able to become aware of all the concealed facts and necessary parties that
were hidden for quite some time relating to their personal experience with Bank of America.
Even though the truth caused much distraught, it was a necessary exposure needed to reveal the
new facts and conditions of this current case. These facts and conditions are different because
they were not known until recently.
The Bloomberg investigation
30
(which is NEW evidence and NEW facts) along with the
Plaintiffs computer entries and the BANA and Urban employee affidavits filed in this case, fit
perfectly as the pieces of a puzzle. There is no question that this scheme was finally exposed and
that other new evidence of events that occurred DURING and AFTER any prior judgment would
not allow this case to be dismissed as a matter of law.
4. Defendants Urban and Carlisle & Gallagher were necessary parties.
A necessary party is a person or entity whose interests will be affected by the outcome of
a lawsuit, whose absence as a party in the suit prevents a judgment on all issues.
Under Fed. R. Civ. P. 15(d), a plaintiff cannot be punished for exercising his or her
option not to supplement their complaint. Nonetheless, the Plaintiffs were not afforded the
opportunity to supplement their earlier complaints in previous lawsuits to add claims or add
defendants because they were not aware of necessary parties or hidden material facts due to
the Defendants malicious misconduct during litigation and discovery.
The Plaintiffs would have gladly supplemented their pleadings if they would have
become aware, as they rightfully should have, of the necessary parties (Urban and CGCG) and
the material facts that were crucial for them to add new facts and claims to their lawsuit.

30
Exhibit A filed with all of the Plaintiffs complaints.
17

Finally, whether plaintiff had a full and fair opportunity to litigate all her claims in the
first suit is determined by examining any procedural limitations, the partys incentive to fully
litigate the claim, and whether effective litigation was limited by the nature or relationship of the
parties. Satterfield v. Olsten Kimberly Quality Care, 203 F.3d 836 (10
th
Cir. 2000).
5. Other exceptions
31
that will not allow res judicata to bar Plaintiffs claims.
The party claiming the benefit of res judicata carries the burden of demonstrating the
doctrines applicability. deCancino v. E. Airlines, Inc., 283 So.2d 97, 99 (Fla. 1973). Any
doubts about the doctrines applicability must be resolved against preclusion. See Neidhart v.
Pioneer Fedl Sav. & Loan Assn, 498 So.2d 594, 596 (Fla. 2d DCA 1986).
Another exception states that if a defendant misled a plaintiff by false representation or
concealment, which caused the plaintiff to sue on less than the entire claim in the first action,
the court will not permit the defendant to rely on claim preclusion should the plaintiff sue on
the remainder of the claim in a second action. See CASAD & CLERMONT, supra note 18, at
104. This would definitely apply to Plaintiffs current case.
Although res judicata has a more binding effect

(Id. at 1255 n.2.) than the law of the
case, courts will not invoke the doctrine where it will work an injustice.

Flesche v. Interstate
Warehouse, 411 So. 2d 919, 924 (Fla. 1st D.C.A. 1982); see also State v. McBride, 848 So. 2d
287, 291 (Fla. 2003).

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Restatement of the Law Second, Judgments reflects throughout the extent to which the contemporary law
governing whether a previously adjudicated claim or issue may be relitigated depends upon the procedural
opportunities that had been available to litigate it fully and fairly the first time. A particular advantage of this
emphasis is that the law of res judicata is stated in terms coordinate with the legislative systems of civil procedure
currently in general use, i. e., the Federal Rules and state systems closely similar to them. The value of Judgments
Second for the practitioner is thereby greatly enhanced.

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Courts find that Florida law recognizes a manifest injustice exception to res judicata
and collateral estoppel, especially involving a pro se litigant. Hartnett v. Mustelier, 330 B.R.
823 (Bankr.S.D.Fla. 2005).
D. The Report violates rules for decision of motions under F.R.C.P. Rule 12(b)(6).
To warrant dismissal of a complaint under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, it must be "clear that no relief could be granted under any set of facts that could be
proved consistent with the allegations." Blackston v. Alabama. 30 F.3d 117, 120 (1lth Cir.1994)
(quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59
(1984)).
The court must accept as true all well-pleaded allegations and all reasonable inferences
that can be drawn from those allegations, and view the causes of action in the light most
favorable to the plaintiff. Tellabs, inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)
(the court must assume that all plausible facts contained in the complaint are true).
The court is required to conduct a two-part analysis when considering a Rule 12(b)(6)
motion. First, the factual matters averred in the complaint, and any attached exhibits, should be
separated from legal conclusions asserted. Fowler, 578 F.3d at 210.
At the motion-to-dismiss stage, we consider the facts derived from a complaints
exhibits as part of the plaintiffs basic factual averments
32
. See Solis-Ramirez v. U.S. Dept of
Justice, 758 F.2d 1426, 1430 (11th Cir. 1985) (per curiam). We even treat specific facts
demonstrated by exhibits as overriding more generalized or conclusory statements in the
complaint itself. See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007).
([W]hen the exhibits contradict the general and conclusory allegations of the pleading, the

32
See Fed. R. Civ. P. 10(c).
19

exhibits govern. (citing Assoc. Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir.
1974)). In evaluating the Motion, the facts stated in . . . [the] complaint and all reasonable
inferences there from are taken as true. Stephens v. Dept. of Health and Human Servs. 901 F.2d
1571, 1573 (11th Cir.1990).
The Report violates all rules for decision of motions under F.R.C.P. Rule 12(b)(6).
Plaintiffs' Complaint alleges new and unresolved factual issues. Rather than "tak[ing] ... as true"
and "constru[ing] favorably" these allegations, the Report rejects them or presumes they raise no
material issues of fact and only interjects a res judicata defense to dismiss the Plaintiffs claims.
Actually, with all due respect, the Report and Recommendation seems more like a Motion to
Dismiss drafted by the defendants and not a Report written by an impartial judge. Rather than
"giv[ing] the plaintiff the benefit of every reasonable inference" and "examin[ing] the complaint
to determine if the allegations provide for relief on any possible theory," the Report decides
against Plaintiffs' allegations on the basis of misconstructions of law and bias.

CONCLUSION

The Plaintiffs object to the magistrates Report and Recommendation on the grounds of
bias and prejudice and conflict of interest and for the numerous reasons stated in this Opposition
by skimming through the Plaintiffs complaint, not reviewing any of their exhibits and the
misapplication of res judicata in this current case. For the foregoing reasons, the Court should
vacate Magistrate Judge Gregory J. Kellys Report and Recommendation in its entirety or in the
alternative decline to adopt the Magistrate Judges Report and Recommendation (Doc. No. 68),
sustain Plaintiffs Second Amended Complaint (Doc. 60), deny all named Defendants Motions
to Dismiss, and allow this current action to continue to discovery and jury trial on the true merits.
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Dated this 2nd day of October, 2014.

Respectfully submitted,




___________________________________
Abdiel Echeverria Plaintiff (pro se)



___________________________________
Isabel Santamaria Plaintiff (pro se)


499 Cellini Ave NE
Palm Bay, Florida 32907
(321) 676-4198
(321) 750-6697
Email: andyecorso@yahoo.com

CERTIFICATE OF SERVICE

I do hereby CERTIFY that a true and correct copy of the foregoing has been furnished to
Marc T. Parrino. Esq.; Kevin W. Cox, Esq.; Gary Soles; and Meghan D. Engle by:
( ) mail ( ) fax ( ) mail and fax ( ) email
on this_______ day of____________________, 20______.


____________________________________ ____________________________________
Abdiel Echeverria Isabel Santamaria


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