            Case: 17-11414   Date Filed: 05/08/2018   Page: 1 of 12


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 17-11414
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 8:11-cv-02511-VMC-TBM



ANDRZEJ MADURA,
ANNA DOLINSKA-MADURA,

                                                 Plaintiffs-Counter Defendants
                                                 Counter Claimants-Appellants,

                                    versus

BAC HOME LOANS SERVICING, LP,
f.k.a. Countrywide Home Loans Servicing, LP,

                                                            Defendant-Appellee,

BANK OF AMERICA, N.A.,

                              Defendant-Counter Claimant-Third Party Plaintiff
                                                 Counter Defendant-Appellee,


COUNTRYWIDE HOME LOANS, INC.,

                                                             Counter Defendant,
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THIRD PARTY DEFENDANT,
Unknown Tenant 2, et al.,

                                                                    Third Party Defendants.

                                     ________________________

                         Appeal from the United States District Court
                             for the Middle District of Florida
                               ________________________

                                           (May 8, 2018)

Before MARTIN, JILL PRYOR and FAY, Circuit Judges.

PER CURIAM:

          Andrzej Madura and Anna Dolinska-Madura (collectively, “the Maduras”),

proceeding pro se, appeal the district court’s denial of their Federal Rule of Civil

Procedure Rule 60(b)(6) motion in their foreclosure proceeding, following the

entry of judgment of foreclosure and grant of summary judgment in favor of

defendant Bank of America, N.A. (“BOA”), on the Maduras’ claims under the

Real Estate Settlement Procedures Act (“RESPA”) 1 and BOA’s counterclaim for

foreclosure. We affirm.




1
    12 U.S.C. § 2605(b), (c), (e).

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                               I. BACKGROUND

A. Underlying Facts

      On July 26, 2000, Madura obtained a residential home loan from Full

Spectrum Lending, Inc. (“Full Spectrum”), and signed a promissory note; he and

his wife, Dolinska-Madura, signed the mortgage. Countrywide Home Loans, Inc.

(“Countrywide”), purchased the loan from Full Spectrum on July 31, 2000. In

March 2001, the Maduras contacted Countrywide and requested to repay their loan

in full; Countrywide informed them that a prepayment penalty applied and sent

them a payoff demand statement that included a $5,036.84 prepayment penalty.

      In May 2001, the Maduras sent Countrywide a letter demanding immediate

rescission of their loan agreement based on alleged fraud and forgery. While

Countrywide refused to rescind the loan, it agreed to waive the prepayment

penalty. The Maduras did not repay the loan in full; they instead continued making

monthly mortgage payments until November 1, 2006, at which point they ceased

making payments. In April 2007, Countrywide sent Madura a notice of default and

acceleration. In 2009, Countrywide changed its name to BAC Home Loans

Servicing, L.P. (“BAC Home Loans”); in 2011, BAC Home Loans merged with

BOA. BOA sent Madura a re-notice of default and acceleration in February 2012;

Madura did not cure the default.




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B. Procedural History

      1. Prior Cases

      After the Maduras sent Countrywide the letter demanding rescission of their

loan, they initiated multiple lawsuits in state and federal courts. In 2002, the

Maduras filed a state-court action against Full Spectrum and Countrywide,

contending that the defendants had fraudulently altered and forged their loan

documents (“Madura 1”). The Florida state court determined that all claims were

subject to the arbitration agreement that Madura admittedly had signed at the loan

closing. Dolinska-Madura subsequently filed an amended complaint against

Countrywide; the state court granted summary judgment in favor of Countrywide.

The Maduras filed multiple appeals to no avail.

      In 2006, the Maduras filed a lawsuit in federal court against Full Spectrum

and Countrywide (“Madura 2”). The claims were nearly identical to those raised

in state court. The district court dismissed Madura’s claims in favor of arbitration

and granted summary judgment on all of Dolinska-Madura’s claims. We affirmed.

Madura v. Countrywide Home Loans, Inc., 344 F. App’x 509, 519 (11th Cir.

2009).

      In 2010, the Maduras filed a state-court action against BOA and it was

removed to federal district court (“Madura 3”). The district court dismissed the

action with prejudice. The district court found that “each and every claim that has


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been advanced in this action against Bank of America [was] addressed and finally

adjudicated.” Madura v. Bank of Am., N.A., No. 8:10-CV-523-T-33AEP, 2010

WL 2821936, at *3 (M.D. Fla. July 16, 2010).

      The Maduras filed three additional lawsuits in state court between 2011 and

2012. In October 2011, they filed an action against the attorneys who had

represented them in the previous actions (“Madura 4”). In January 2012, they filed

a claim against Countrywide (“Madura 6”). The state court dismissed Madura 4

and Madura 6, because it lacked jurisdiction and the claims already had been

adjudicated in Madura 1 and Madura 3.

      2. The Instant Case

      In between filing Madura 4 and Madura 6, the Maduras filed the action at

issue in this appeal (“Madura 5”). Following removal from state court, in

November 2011, the Maduras filed a pro se amended federal complaint in district

court against BOA and BAC Home Loans. The Maduras alleged that the

defendants had violated several provisions of the RESPA. After discovery, BOA

moved for summary judgment on the Maduras’ RESPA claims and on its

counterclaim for foreclosure. The district court entered a final judgment of

foreclosure on August 13, 2013; the Maduras appealed.

      In 2014, we affirmed the district court’s judgment. Madura v. BAC Home

Loans Servicing, LP, 593 F. App’x 834 (11th Cir. 2014). We affirmed the district


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court’s rejection of the rescission and fraud-based arguments; we concluded that

the Maduras had failed to present any admissible evidence supporting their

contention that the note was forged. Id. at 843-46. Additionally, as to the forgery

and fraud-based arguments, we also relied on Madura 2 and Madura 3 to

determine that some of the Maduras’ claims were collaterally estopped and cited

Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d 1171 (11th Cir. 2013), in support.

Madura, 593 F. App’x at 843-44. The U.S. Supreme Court denied the Maduras’

petition for a writ of certiorari. Madura v. Bank of America, N.A., 136 S. Ct. 133

(2015).

      After the case was closed, the Maduras filed numerous motions and appeals,

all of which were unsuccessful. 2 In February 2017, the Maduras filed the instant

Rule 60(b)(6) motion, for relief from the district court’s July 2010 order of

dismissal with prejudice (in Madura 3) and the July 2013 grant of summary

judgment of foreclosure (in Madura 5). The Maduras asserted that our recent

opinion in CSX Transportation, Inc. v. General Mills, Inc., 846 F.3d 1333 (11th

Cir. 2017), undermined our reliance on Tampa Bay Water, which was cited in our

2014 affirmance.




2
 See, e.g., Madura v. BAC Home Loans Servicing, LP, 655 F. App’x 717 (11th Cir. 2016);
Madura v. BAC Home Loans Servicing, L.P., No. 16-14870, 2017 WL 5988381 (11th Cir. Dec.
4, 2017).

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       The Maduras also filed an emergency motion to set aside, or alternatively

stay, the district court’s confirmation of the foreclosure sale and the writ of

possession order, pending a ruling on their Rule 60(b)(6) motion. They asserted

that BOA had purchased the property in the foreclosure sale and is still the owner

of the property. The district court denied the Maduras’ Rule 60(b)(6) motion and

their motion to set aside the judgment. 3 The Maduras filed a notice of appeal from

the district court’s denial of their Rule 60(b)(6) motion.

                                      II. DISCUSSION

A. Subject Matter Jurisdiction

       On appeal, the Maduras argue that the district court lacked subject matter

jurisdiction to issue the foreclosure judgment and make a rescission determination,

which we affirmed, because the loan was rescinded and the loan rescission issue

was not presented in the pleadings. We review questions regarding subject matter

jurisdiction de novo. See Stovall v. City of Cocoa, 117 F.3d 1238, 1240 (11th Cir.

1997). Appellate courts have a responsibility to examine the subject matter

jurisdiction of the district courts in actions that they review. Williams v. Best Buy

Co., 269 F.3d 1316, 1318 (11th Cir. 2001). In a given case, a federal district court

must have either: (1) federal question jurisdiction pursuant to 28 U.S.C. § 1331; or


3
 The Maduras also filed a motion for reconsideration pursuant to Federal Rule of Civil
Procedure 59(e). However, the district court had not ruled on that motion at the time that the
Maduras filed their notice of appeal.

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(2) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Baltin v. Alaron Trading

Corp., 128 F.3d 1466, 1469 (11th Cir. 1997). Federal question jurisdiction exists

in civil actions arising under the Constitution, laws, or treaties of the United States.

28 U.S.C. § 1331. Here, the district court had federal question jurisdiction in the

underlying proceeding, as the Maduras raised claims under the RESPA, 4 a federal

statute. See 28 U.S.C. § 1331; Baltin, 128 F.3d at 1469.

         The law-of-the-case doctrine bars relitigation of issues that were decided

either explicitly or by necessary implication in an earlier appeal of the same case.

This That & The Other Gift & Tobacco, Inc. v. Cobb County, 439 F.3d 1275, 1283

(11th Cir. 2006). The law-of-the-case doctrine can be overcome only when: (1)

since the prior decision, new and substantially different evidence is produced or

there has been a change in the controlling authority; or (2) the prior decision was

clearly erroneous and would result in a manifest injustice. Id.

         In a recent appeal by the Maduras, we rejected their argument that the

district court lacked subject matter jurisdiction over their case because the loan

rescission issue was not framed by the pleadings. Madura v. BAC Home Loans

Servicing, L.P., No. 16-14870, 2017 WL 5988381, at *3 (11th Cir. Dec. 4, 2017).

We recognized that the Maduras’ argument about whether rescission was raised in

the pleadings was not a jurisdictional issue, because there is no requirement that

4
    12 U.S.C. § 2605.

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the prior servicers bring an action in order to provide the district court with subject

matter jurisdiction. Id. The Maduras’ subject matter jurisdiction arguments raised

in the instant appeal are, once again, an attempt to re-argue that their loan was

rescinded in 2001. Id. Accordingly, their arguments are barred by the law-of-the-

case doctrine and the Maduras have failed to show that any of the exceptions to the

law-of-the-case doctrine are applicable. See This That & The Other Gift &

Tobacco, 439 F.3d at 1283. As to a change in controlling authority, although the

Maduras rely on CSX Transportation as new relevant controlling authority, that

case is inapplicable to their case, as explained below.

B. Rule 60(b)(6) Motion

      The Maduras also argue that the district court abused its discretion by

denying their Rule 60(b)(6) motion because our recent decision in CSX

Transportation, 846 F.3d 1333, is applicable to their case. Rule 60(b) allows a

party to seek relief or reopen his case based upon the following limited

circumstances: (1) mistake or excusable neglect; (2) newly discovered evidence;

(3) fraud; (4) the judgment is void; (5) the judgment has been discharged; and (6)

any other reason that justifies relief. Fed. R. Civ. P. 60(b). A motion seeking

relief under Rule 60(b)(6) must be filed within a reasonable time. Fed. R. Civ. P.

60(c)(1). The appeal of a Rule 60(b) motion is limited to a determination of

whether the district court abused its discretion in denying the motion and shall not


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extend to the validity of the underlying judgment per se. Rice v. Ford Motor Co.,

88 F.3d 914, 918-19 (11th Cir. 1996).

      To demonstrate that the district court abused its discretion in denying a Rule

60(b) motion, a movant must prove some justification for relief and cannot prevail

simply because the district court properly could have vacated its order. Solaroll

Shade & Shutter Corp. v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1132 (11th Cir.

1986). Rather, the movant must demonstrate a justification so compelling that the

court was required to vacate its order. Id. Additionally, more than a mere change

in the law is necessary to provide grounds for Rule 60(b)(6) relief; the petitioner

must persuade us that the circumstances are sufficiently extraordinary to warrant

relief. Ritter v. Smith, 811 F.2d 1398, 1401 (11th Cir. 1987).

      In CSX Transportation, we addressed the issue of whether federal common

law applies state collateral estoppel rules or federal collateral estoppel rules, when

determining the preclusive effect of a judgment rendered by a federal court

exercising diversity jurisdiction. 846 F.3d at 1337. We explained that our case

law on this issue was conflicting and, in relevant part, noted that, in Tampa Bay

Water, we had determined that federal common law incorporates collateral

estoppel as defined by federal law to determine the preclusive effect of issues

decided by a federal court that exercised diversity jurisdiction. Id. However, in an

earlier case, Palmer & Cay, Inc. v. Marsh & McLennan Cos., 404 F.3d 1297


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(2005), we had held that collateral estoppel was defined by state law in that

circumstance. CSX Transp., 846 F.3d at 1339-40. Relying on the earliest

precedent rule, we held that federal common law borrows the state rule of

collateral estoppel to determine the preclusive effect of a federal judgment where

the court exercised diversity jurisdiction. Id. at 1340.

      Here, the district court did not abuse its discretion in denying the Maduras’

Rule 60(b)(6) motion. See Rice, 88 F.3d at 918-19. First, to the extent that the

Maduras are attempting to utilize CSX Transportation to undermine the district

court’s opinion in one of their prior cases, they may not use Rule 60(b). See

Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993) (stating that

Rule 60(b) cannot be used as a substitute for a properly-filed appeal).

      As to the Maduras’ challenge to the adjudication of their underlying

foreclosure proceeding, more than a mere change in the law is necessary to warrant

Rule 60(b)(6) relief. See Ritter, 811 F.2d at 1401. Regardless, CSX

Transportation does not apply because the Maduras’ relevant prior cases were

adjudicated under federal question jurisdiction, not diversity jurisdiction. See CSX

Transp., 846 F.3d at 1340; see also Tampa Bay Water, 731 F.3d at 1179

(explaining that federal preclusion principles apply when a prior federal decision

was decided under federal question jurisdiction). Further, the district court’s

summary judgment order did not depend exclusively on preclusion; it included


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alternative, merits-based reasons for denying the Maduras’ claims and defenses,

which we addressed and affirmed. See Madura, 593 F. App’x at 841-50.

      AFFIRMED.




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