            Case: 16-13750   Date Filed: 04/10/2017   Page: 1 of 9


                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-13750
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 2:15-cv-14303-DMM

TIMOTHY D. WILLSON,

                                                            Plaintiff-Appellant,

                                 versus

BANK OF AMERICA, N.A.,

                                                           Defendant-Appellee,

QBE FIRST INSURANCE AGENCY,

                                                                     Defendant.
                       ________________________

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

                              (April 10, 2017)

Before MARTIN, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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          Timothy Willson appeals a district court order staying his suit against Bank

of America under the Colorado River1 abstention doctrine. Willson sued for

damages under Regulation X, 12 C.F.R. § 1024, which implements the Real Estate

Settlement Procedures Act of 1974 (“RESPA”), 12 U.S.C. § 2601 et seq. See 12

C.F.R. § 1024.1. He alleged violations of Regulation X during a foreclosure action

brought against his property in Florida state court. In a motion for rehearing after

the Florida court entered a final judgment of foreclosure, Willson argued

Regulation X “precluded [Bank of America from] moving for a final foreclosure

judgment.” The Florida court denied Willson’s motion for rehearing, but his

appeal of both the final judgment and motion for rehearing remains pending in the

Florida courts. The district court found Willson’s state and federal actions to be

substantially similar and that the Colorado River factors warranted abstention.

After careful review, we affirm.

                                                  I.
          On November 4, Willson emailed Bank of America requesting a loan

modification. On December 1, the day of Willson’s foreclosure trial in the Florida

court, Bank of America replied to Willson stating his November 4 email was

“corrupted” and had gone to Bank of America’s “SPAM mail.” Bank of America

asked Willson to resend the email, which he did that same day.

          1
              Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S. Ct. 1236
(1976).


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      On January 12, 2015, the Florida court entered a final judgment of

foreclosure. On January 17, Bank of America told Willson that he did not qualify

for a loan modification. On January 27, Willson filed a motion for rehearing in the

Florida court, in which Willson raised the argument that Regulation X “precluded

[Bank of America from] moving for a final foreclosure judgment.” He also copied

Regulation X § 1024.5(c)(1), which states RESPA or Regulation X may preempt

inconsistent state laws. The next day, the Florida court denied the motion for

rehearing. Willson’s appeal of both the final judgment and motion for rehearing

remains pending. Willson also filed for bankruptcy to prevent a foreclosure sale.

      On August 27, 2015, Willson filed this action in federal court under

Regulation X. Bank of America moved for summary judgment. The district court

granted in part and denied in part the motion for summary judgment, allowing only

two counts to proceed: Count I, failure to notify Willson of receipt of his loan-

modification application under 12 C.F.R. § 1024.41(b)(2)); and Count II, moving

forward with the foreclosure trial despite a pending loan-modification application

under 12 C.F.R. § 1024.41(g). The district court also declined to grant judgment to

Bank of America on Willson’s claims for damages related to litigation costs

(including filing for bankruptcy).

      Bank of America then moved the district court to abstain from further action

in Willson’s suit. The district court addressed Colorado River abstention. It noted



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the pending Florida state case involved the same parties and found Willson had

asked both the Florida court and the federal court to decide whether Bank of

America violated RESPA by seeking a foreclosure judgment. Thus, the district

court concluded the two cases involved substantially the same issues.

      The district court then analyzed the Colorado River factors. The court

found: (1) the Florida court had jurisdiction over the foreclosure property

(favoring abstention); (2) the federal forum was convenient (neutral); (3) the

potential for piecemeal litigation was not excessive (not favoring abstention); (4)

the Florida case was already on appeal after trial but this case has not yet

proceeded to trial (favoring abstention); (5) the claims in front of the district court

were based on federal law (not favoring abstention); (6) both courts were adequate

to protect Willson’s rights (neutral); (7) it was not clear that Willson filed the

federal action solely in reaction to his failure in state court (neutral); and (8)

RESPA’s concurrent jurisdiction indicated a policy favoring abstention (favoring

abstention). Based on these findings, the district court concluded abstention was

warranted and stayed Willson’s suit.

                                          II.

      “We review a district court’s order abstaining from the exercise of

jurisdiction on Colorado River grounds for an abuse of discretion.” Ambrosia Coal

& Const. Co. v. Pages Morales, 368 F.3d 1320, 1332 (11th Cir. 2004). “When



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employing an abuse of discretion standard, we must affirm unless we at least

determine that the district court has made a clear error of judgment, or has applied

an incorrect legal standard.” Moorer v. Demopolis Waterworks & Sewer Bd., 374

F.3d 994, 996–97 (11th Cir. 2004) (per curiam) (quotation omitted).

      “Generally, as between state and federal courts, the rule is that the pendency

of an action in the state court is no bar to proceedings concerning the same matter

in the Federal court having jurisdiction.” Colorado River, 424 U.S. at 817, 96 S.

Ct. at 1246 (quotation omitted and alteration adopted). The “obligation of the

federal courts to exercise the jurisdiction given them” is “virtually unflagging.” Id.

Thus, “Colorado River abstention is particularly rare.” Jackson-Platts v. Gen.

Elec. Capital Corp., 727 F.3d 1127, 1140 (11th Cir. 2013).

      “The principles of [the Colorado River] doctrine rest on considerations of

wise judicial administration, giving regard to conservation of judicial resources and

comprehensive disposition of litigation.” Moorer, 374 F.3d at 997 (quotation

omitted and alteration adopted). Colorado River abstention applies only “when

federal and state proceedings involve substantially the same parties and

substantially the same issues.” Ambrosia Coal, 368 F.3d at 1330. If this threshold

condition is met, then eight factors are weighed to analyze the permissibility of

abstention:

      (1) whether one of the courts has assumed jurisdiction over property,
      (2) the inconvenience of the federal forum, (3) the potential for

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      piecemeal litigation, (4) the order in which the fora obtained
      jurisdiction, (5) whether state or federal law will be applied, [] (6) the
      adequacy of the state court to protect the parties’ rights. . . . [(7)] the
      vexatious or reactive nature of either the federal or the state
      litigation . . . . [and (8)] whether the concurrent cases involve a federal
      statute that evinces a policy favoring abstention.

Id. at 1331 (quotation omitted). However, “the decision whether to dismiss a

federal action because of parallel state-court litigation does not rest on a

mechanical checklist, but on a careful balancing of the important factors as they

apply in a given case, with the balance heavily weighted in favor of the exercise of

jurisdiction.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,

16, 103 S. Ct. 927, 937 (1983). “The weight to be given to any one factor may

vary greatly from case to case, depending on the particular setting of the case.” Id.

“By considering and balancing the [] factors enumerated by the Supreme Court, a

district court will be able to identify when the circumstances are exceptional.”

Noonan S., Inc. v. Cty. of Volusia, 841 F.2d 380, 382 (11th Cir. 1988).

                                        A.

      Willson argues the two cases are not substantially similar because he seeks

different relief. But the district court found the cases are substantially similar

because the issues are the same. The court said Willson “seeks a determination [in

both cases] that [Bank of America] improperly moved for foreclosure judgment in

violation of RESPA.” Specifically, the district court observed that a determination




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that the foreclosure judgment was made in error is necessary for Willson to

succeed in the federal suit.

       “A district court will abuse its discretion if it makes an error of law or makes

a clearly erroneous factual finding.” Jackson-Platts, 727 F.3d at 1133. The district

court did not abuse its discretion in finding that Willson’s state and federal cases

involved substantially the same issues, because his federal claims will require a

determination of whether the Florida court’s foreclosure judgment was correct.

This finding was not clearly erroneous and was based on a correct application of

law.

                                        B.

       Willson also argues the Colorado River factors do not favor abstention to the

extent required to overcome the heavy presumption that federal courts exercise the

jurisdiction afforded to them. The district court noted the presumption in favor of

federal court jurisdiction, but after analyzing the proper factors, found “abstention

is warranted under these circumstances.” Thus, the district court did not apply an

incorrect legal standard. Willson must therefore show the district court made a

clear error of judgment in balancing the Colorado River factors. See Moorer, 374

F.3d at 996–97.

       The district court found three factors favored abstention: factor one, that the

Florida court had jurisdiction over Willson’s property; factor four, that the Florida



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court was post-trial while the federal suit was not; and factor eight, that RESPA’s

grant of concurrent jurisdiction indicated a policy in favor of abstention. The first

factor favors abstention because the Florida court already had jurisdiction over

Willson’s property and the federal court necessarily would decide whether the

foreclosure judgment was correct. See Forehand v. First Ala. Bank of Dothan, 727

F.2d 1033, 1035 (11th Cir. 1984) (the first factor applies where both the federal

and state courts are “determining rights in property over which one court has first

taken jurisdiction”). The fourth factor also favors abstention because the district

court properly looked to the relative progress of the two suits and found the Florida

court had progressed beyond trial. See Moses H. Cone, 460 U.S. at 21–22, 103 S.

Ct. at 940 (“[P]riority should not be measured exclusively by which complaint was

filed first, but rather in terms of how much progress has been made in the two

actions.”). And although Willson argues the RESPA issue was not squarely before

the Florida court at the foreclosure trial, the district court correctly found the

RESPA claim was premised on Bank of America proceeding with the foreclosure

trial despite Willson’s pending loan-modification application.

      We note that the district court did err in its finding on the eighth factor that

RESPA’s concurrent jurisdiction “indicates a policy in favor of abstention.”

Colorado River requires more. Although it is true that the statute at issue in

Colorado River granted concurrent state and federal jurisdiction, 424 U.S. at 809,



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96 S. Ct. at 1242, it was “[t]he clear federal policy . . . [for] the avoidance of

piecemeal adjudication of water rights in a river system” that evinced a policy

favoring abstention. Id. at 819, 96 S. Ct. at 1247. Even recognizing this error, it

does not reach the level of a clear error of judgment or affect the district court’s

finding that the exceptional circumstances of the other two factors warranted

abstention. See Jackson-Platts, 727 F.3d at 1133. As a result, we affirm.

      AFFIRMED.




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