Opinion
CASE NO. 22-10746-RAM
2022-06-14
IN RE: Miriam SOLER, Debtor.
AMENDED ORDER ENJOINING MIRIAM SOLER, ROBERTO SOLERSOLER, JR. AND ALBERTO SOLER FROM FILING FURTHER BANKRUPTCY CASES WITHOUT LEAVE OF COURT
The order entered on June 13, 2022 is being amended to add a reference to two additional cases, and several additional adversary proceedings within those cases, filed by Alberto Soler, using the name Alberto Solar Somohano, and to include the name, Alberto Solar Somohano, in the injunction.
Robert A. Mark, Judge
The Court conducted a hearing on June 7, 2022, to consider entry of an Order enjoining the Debtor, Miriam Soler, and her sons, Roberto Soler and Alberto Soler, also known as Alberto Solar Somohano, (collectively, the "Solers") from filing any further bankruptcy cases without leave of court. Despite receiving notice of the hearing, none of the Solers appeared at the hearing to present argument against entry of the injunction.
The basis for the injunction is described in the Court's Amended Order to Show Cause Why Miriam Soler, Roberto Soler, Jr. and Alberto Soler Should not be Enjoined from Filing Further Bankruptcy Cases Without Leave of Court (the "Show Cause Order") [DE# 85]. Those reasons are repeated, in large part, in this Order. Moreover, the events that have occurred since the entry of the Show Cause Order provide additional cause for injunctive relief, in particular, Roberto Soler's filing of a new chapter 7 bankruptcy petition on May 20, 2022, Case No. 22-13971-LMI.
Factual and Procedural Background
The above-captioned case is the tenth bankruptcy case filed in this district in the last six years by Miriam Soler (3 cases) , Roberto Soler, Jr. (2 cases) , and Alberto Soler (5 cases) .
16-16898, 17-18812, and this case, 22-10746.
19-17922 and 19-25124.
16-18464, 17-18157, and 20-22697, and two cases filed by the same individual using the name, Alberto Solar Somohano, 17-18157-LMI and 20-22697-AJC.
The prior cases were filed for the primary purpose of delaying the foreclosure of two properties, one located at 4741 NW 5th St., Miami, FL 33126 (the "5th St. Property") and one located at 736 SE 8th Place, Hialeah, FL 33010 (the "Hialeah Property"). Twenty-five adversary proceedings were initiated in the prior cases, including failed attempts to remove the two foreclosure cases to the bankruptcy court. Nineteen of the adversary proceedings related to either the 5th St. Property or the Hialeah Property. The Defendants included the President of the United States, various federal agencies, attorneys, judges, and the chapter 13 trustees.
Neither the 5th St. Property nor the Hialeah Property are owned by any of the Solers. Judge Cristol granted prospective stay relief to the Federal National Mortgage Association ("Fannie Mae") with respect to the Hialeah Property in his Amended Order Dismissing Case for Failure to Make Pre-Confirmation Plan Payments and for Failure to Appear at Meeting of Creditors [DE# 52 in 19-17922]. That Order allowed Fannie Mae to conclude its foreclosure in Case No. 2013-033734-CA-01, and the Hialeah Property was purchased at a foreclosure sale by FORMIAMI 20, LLC. The Miami-Dade County Clerk of Courts issued a Certificate of Title to FORMIAMI 20, LLC on January 27, 2021. The Certificate of Title was recorded on January 29, 2021. A copy of the Certificate of Title on the Hialeah Property is attached as Exhibit A to this Order.
The 5th St. Property was the subject of a foreclosure case commenced by Fannie Mae in 2013, Case No. 2013-008187-CA-01 (the "5th Street Foreclosure Case"). Judge Cristol granted Fannie Mae stay relief to complete its foreclosure in his November 28, 2017 Order Granting Motion for Relief from Stay and Co-Debtor Stay and Order to Grant Prospective Relief for a One-Year Period (the "5th St. Property Stay Relief Order") [DE# 65 in 17-18812].
The 5th St. Foreclosure Case went forward. Fannie Mae was the successful bidder at the foreclosure sale, and the Miami-Dade County Clerk of Courts issued a Certificate of Title to Fannie Mae on August 6, 2018. A copy of the Certificate of Title on the 5th St. Property is attached as Exhibit B to this Order.
Need and Justification for Prospective Relief
Based upon the record in the nine prior Soler cases and 19 prior adversary proceedings, and in the dozens of appeals filed in those cases and proceedings, it is clear that the Solers are bad-faith, vexatious litigants. If unchecked, it is likely that they will file future bankruptcy cases seeking to re-litigate long-decided issues relating to the 5th St. Property and to the Hialeah Property. In fact, as noted earlier, Roberto Soler has filed a new case since entry of the Show Cause Order.
The Solers’ ongoing quest is evident in the record. For example, despite losing title to the 5th St. Property in April 2018, Miriam Soler, acting through her son, filed two Motions to Reopen her first case in November 2019 [DE#s 104 and 106 in 16-16898] and filed a Motion to Re-Impose Automatic Stay [DE# 109 in 16-16898]. All three motions sought relief against Fannie Mae in connection with the foreclosure of the 5th St. Property.
On December 9, 2019, this Court entered its Order Denying Debtor's Motions and Granting Prospective Stay Relief [DE# 116 in 16-16898]. That Order emphasized that Fannie Mae was already the owner of the 5th St. Property. The Order also granted prospective stay relief to Fannie Mae to obtain issuance of, and to execute, a Writ of Possession. In typical fashion, the Solers continued their vexatious attempts to undo the foreclosure, filing several appeals in that case.
On January 31, 2022, Miriam Soler, again acting through Alberto Soler, filed this case. Because the case was dismissed for filing deficiencies, the Court cannot state with certainty what the Solers hoped to accomplish. But, given the history, there is little doubt that this case was filed to launch a further attack on Fannie Mae and possibly others relating to the 5th St. Property.
Based upon the history described above, the Court entered the Show Cause Order on April 12, 2022, scheduling a hearing for May 19, 2022. Paragraph 5 of the Show Cause Order provided as follows:
Unless one or more of the Solers appear at the May 19th hearing and show cause why an injunction should not be issued, the Court will enter an injunction prohibiting all of the Solers from filing any further bankruptcy cases without leave of Court. The injunction will provide that the Court will allow a new case only if it grants a Motion for Leave to File New Bankruptcy Case (the "Motion for Leave"). To be considered by the Court, the Motion for Leave must be filed in this case, describe the purpose of a new bankruptcy case, and certify that the proposed new case is seeking to discharge, or restructure, debts that are not related to the 5th St. Property or to the Hialeah Property.
On April 19, 2022, the Court entered its Order Rescheduling Show Cause Hearing [DE# 93]. That Order rescheduled the Show Cause Hearing for June 7, 2022. The Order was served on the Solers at 4741 NW 5th Street, the address of the 5th St. Property.
As noted above, none of the Solers appeared at the June 7th hearing. Moreover, as also noted, Roberto Soler has provided further cause for the injunction by filing yet another bankruptcy petition on May 20, 2022, his third in the last four years, Case No. 22-13971-LMI (the "New Roberto Case"). The filing of the petition was clearly in bad faith. By email dated April 19, 2022 [DE# 94], Roberto Soler advised the Court that his current address is 8150 SW 72nd Avenue. Yet in his petition in the New Roberto Case, he lists his address as the 5th St. Property. Without doubt, he filed the case in an attempt to stop a hearing scheduled for May 23, 2022, in the 5th Street Foreclosure Case on Fannie Mae's Motion for Writ of Possession. In fact, Fannie Mae is the only creditor listed on the matrix.
Discussion
The Court has the authority to enjoin the Solers from filing any further bankruptcy cases relating to the 5th St. Property or to the Hialeah Property, pursuant to its inherent authority and pursuant to § 105 of the Bankruptcy Code. See, e.g., In re United States Corporation Company , Case No. 20-40375-KKS, 2021 WL 1100078, at *3-4 (Bankr. N.D. Fla. Jan. 22, 2021) (citing cases and discussing the standard applicable to bankruptcy courts in the Eleventh Circuit). The history of the Soler filings supports this relief.
Continuing to advance groundless and patently frivolous litigation is tantamount to bad faith justifying sanctions. Ginsberg v. Evergreen Sec., Ltd. (In re Evergreen Sec., Ltd. ), 570 F.3d 1257, 1273 (11th Cir. 2009). And, a federal court's inherent authority to sanction includes pre-filing restrictions such as enjoining future filings without leave of court. Martin-Trigona v. Shaw , 986 F.2d 1384, 1386-87 (11th Cir. 1993). Federal "[c]ourts may enjoin not only the abusive litigant, but any party working in concert [with] or at the behest of the litigant." In re United States Corporation Company , Case No. 20-40375-KKS, 2021 WL 1100078, at *4 (Bankr. N.D. Fla. Jan. 22, 2021) (citations omitted). They may issue injunctive relief sua sponte and have done so where, as here, a party repeatedly files meritless claims. See, e.g., Bafford v. Township Apartments Assoc., Ltd. , No. 8:08-cv-724-T-27YGW, 2008 WL 1817333 (M.D. Fla. Apr. 22, 2008) (sua sponte dismissing a complaint with prejudice and ordering the plaintiff who sought to relitigate matters previously adjudicated on the merits to show cause why he should not be enjoined from filing any future lawsuit without leave of court); Suntrust Bank v. Gaeta , No. 8:10-cv-31-T-33AEP, 2010 WL 1049800 (M.D. Fla. Mar. 22, 2010) (sua sponte issuing a Martin-Trigona injunction against a party who caused unnecessary delay and interference in multiple state court actions through meritless removal of the actions to federal court).
Therefore, it is
ORDERED as follows:
1. Miriam Soler, Roberto Soler, and Alberto Soler, also known as Alberto Solar Somohano, are enjoined from filing any further bankruptcy petitions in the Southern District of Florida without leave of this Court.
2. The Court will allow the Solers to file a new case only if it grants a Motion for Leave to File New Bankruptcy Case (a "Motion for Leave"). The Motion for Leave must be filed in this case, describe the purpose of the proposed new bankruptcy case, and certify that the proposed new case is seeking to discharge, or restructure, debts that are unrelated to the 5th St. Property or to the Hialeah Property.
3. This Order has been reviewed by both Chief Judge Laurel Isicoff and Judge A. Jay Cristol, who have confirmed that they approve the form of the Order and support the injunctive relief provided in this Order.
ORDERED in the Southern District of Florida on June 14, 2022.
Exhibit A ?
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