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

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