N.C. Court of Appeals: Johnson v. Bank of America- Rule 11 Sanctions and Gatekeeper Orders

Summary:

In attempting to set aside a foreclosure, Johnson brought numerous state and federal lawsuits against Bank of America, its attorneys, and the Substitute Trustee, alleging FDCPA, UDTPA, and other claims. All of these suits were eventually dismissed, with obtaining on two occasions Rule 11 sanctions for attorneys’ fees. Ultimately, the Durham County Superior Court entered a “Gatekeeper Order”, prohibiting Johnson from filing any further suits related to this matter, without certification of its merit by a Durham County Superior Court judge.

The Court of Appeals affirmed finding that there are three parts to a Rule 11 analysis:
(1) factual sufficiency,
(2) legal sufficiency, and
(3) improper purpose.

“A violation of any one of these requirements mandates the imposition of sanctions under Rule
11.” See Ward v. Jett Props., LLC, 191 N.C. App. 605, 607, 663 S.E.2d 862, 864 (2008). Legal sufficiency requires a determination both that the complaint is “facially plausible” and reasonable as “warranted by existing law.”

The Gatekeeper Order was also upheld, relying on Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 818 (4th Cir. 2004), a prefiling injunction requires the trial court to weigh all the relevant circumstances, including:
(1) the party’s history of litigation, in particular whether he has filed vexatious, harassing, or duplicative lawsuits;
(2) whether the party had a good faith basis for pursuing the litigation, or simply intended to harass;
(3) the extent of the burden on the courts and other parties resulting from the party’s filings; and
(4) the adequacy of alternative sanctions.

The Gatekeeper Order met these requirements and additionally was narrowly tailored “to fit the specific circumstances at issue.” Id.

Commentary:

Surprisingly, Mr. Johnson does not appear to have ever filed bankruptcy.

For a copy of the opinion, please see:

Johnson v. Bank of America- Rule 11 Sanctions and Gatekeeper Orders.pdf

About

1. Bachelor of Arts degree in English Literature from Washington University, 1993. 2. Juris Doctor degree from George Washington University, 1996. Admissions to Practice of Law: North Carolina Bar, 1996. Federal District Courts for the Eastern and Middle Districts of North Carolina. Specialty Certification: North Carolina State Bar: Certified as a Specialist in Consumer Bankruptcy. Areas of Practice: Practice limited to consumer and business debtor bankruptcy law, 1998 to present. Memberships: National Association of Consumer Bankruptcy Attorneys (NACBA). North Carolina Academy of Trial Lawyers (NCATL). North Carolina Bar Association, Bankruptcy Section. Lectures prepared and presented: North Carolina Academy of Trial Lawyers seminar on bankruptcy; Topic: Counseling the Consumer Debtor Prior to Court - C.Y.A. Forms to Help 'Gird They Loins'; 2001. Middle District Bankruptcy Seminar; Topic: Preparing Chapter 13 Plans; 2002. NACBA National Convention; Topic: Efficient Office Practices; 2003. NACBA National Convention; Topic: Chapter 7 vs. Chapter 13 Debates; 2004. Middle District Bankruptcy Seminar; Topic: Chapter 7 & 13 Hot Issues; 2004. Positions held: NACBA National Convention; Convention Chair; 2008. NACBA National Convention; Panel Moderator: Topic: Basic Bankruptcy Issues; 2008. NACBA National Convention; Panel Moderator; Topic: Chapter 13-Disposable Income and Other Issues; 2007. NACBA National Convention; Panel Moderator; Topic: Representing Members of the Military and Their Families; 2007. NACBA, Member of National Board of Directors, 2006 to present. NCATL, Chair of the Bankruptcy Section, 2003 to 2007. NACBA, Chair of the North Carolina Section, 2003 to 2007. NC Bar Association, Bankruptcy Section, Bankruptcy Council Member, 2004 to present.

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