PNC Bank v. Sheila Spencer ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2676
IN RE:
WENDY A. NORA,
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:13-cv-00021-bbc — Barbara B. Crabb, Judge.
____________________
SHOW CAUSE HEARING OCTOBER 28, 2014 — DECIDED
FEBRUARY 11, 2015
____________________
Before BAUER, POSNER, and TINDER, Circuit Judges.
TINDER, Circuit Judge. On August 13, 2014, we ordered at-
torney Wendy Nora to show cause why she should not be
sanctioned for pursuing a frivolous appeal, see Fed. R. App.
P. 38, and why she should not be disciplined for conduct
unbecoming a member of the bar, see id. 46(c). PNC Bank,
N.A. v. Spencer, 763 F.3d 650, 655 (7th Cir. 2014). For the rea-
sons that follow, we now impose a sanction of $2,500 but
suspend the sanction until such time, if ever, that Nora sub-
mits additional frivolous or needlessly antagonistic filings.
2 No. 13-2676
I. Background
As discussed in our earlier opinion, this case arose from a
Wisconsin foreclosure action in which Nora, retained by
Sheila Spencer, raised numerous objections focused on alleg-
ing that PNC Bank was fraudulently attempting to foreclose.
Nearly four years after the suit had been filed, Nora then
removed the case to federal court on the basis that she had
just discovered through internet research that Freddie Mac
was the “real party in interest.” The district court remanded
the case to state court and awarded fees and costs to PNC,
concluding that Nora failed to explain how federal jurisdic-
tion could exist when Freddie Mac was not a party to the
case. Nora moved for reconsideration, and the court denied
the motion as “frivolous,” noting that Nora “ignored the vo-
luminous law stating that district courts lack jurisdiction to
reconsider remand orders, made no good faith argument for
changing existing law and offered no meritorious arguments
for reconsidering the decision to award fees.” The court
added that Nora had attempted “repeated procedural feints
to delay the foreclosure that was properly before the state
court.”
Nora then appealed on behalf of both Spencer and her-
self, and we concluded that the appeal was sanctionably
frivolous. We explained that Nora had “never presented any
colorable basis for federal jurisdiction over this years-old
state-court foreclosure case,” leading us to “suspect that the
removal was part of a strategy designed to gum up the pro-
gress of the case.” Spencer, 763 F.3d at 655. We also observed
that we lacked jurisdiction over Nora’s appeal on her own
behalf because liability for the award of fees and costs rested
No. 13-2676 3
solely with Spencer; although Nora asserted that Judge
Crabb had “engaged in a campaign of libel against [her],”
this alleged criticism did not permit Nora to appeal. Id. at
653–54. Nora suggested at oral argument that she would
withdraw her name as co-appellant but never did so. Id. at
654.
Further, we noted that Nora’s conduct appeared to be
part of a pattern of troubling litigation tactics. We observed
that Nora had been suspended indefinitely from practicing
law in Minnesota (though later reinstated) for conduct simi-
lar to her actions in this case: making frivolous arguments,
with no prospect of success, in an effort to delay foreclosure
of her clients’ farm land. See In re Nora, 450 N.W.2d 328, 330
(Minn. 1990). Additionally, we observed that Nora’s re-
sponses to her opponents and the courts during this litiga-
tion were “unnecessarily accusatory and antagonistic,” not-
ing that Nora had accused “the state court judge and court
reporter of fraudulently manipulating transcripts, the dis-
trict judge of pursuing ‘a campaign of libel against [her],’
and opposing counsel of engaging in ‘actionable civil fraud
and racketeering [that] may constitute state and federal
criminal misconduct.’” Spencer, 763 F.3d at 655 (alterations in
original). We gave Nora 30 days to show cause why she
should not be sanctioned.
Two days after we issued our opinion, Nora filed a 14-
page “initial response” alleging that the opinion did not
provide her with reasonable notice of the charges against
her. She requested an evidentiary hearing and appointment
of “an attorney to represent the proponent of the Order to
Show Cause and a referee or special master to preside at the
hearing.” We denied Nora’s request for appointment of a
4 No. 13-2676
special master and a full evidentiary hearing but agreed to
hold a hearing on the show-cause order as allowed under
Rule 46(c). We warned Nora that we would not accept addi-
tional filings beyond “one proper response to the show-
cause order” and directed her to address the following four
issues in her response: (1) whether the removal of this case,
motion to reconsider, and appeal of the fee order were frivo-
lous; (2) whether her appeal on her own behalf was frivo-
lous; (3) whether the removal and appeal were litigated for
the improper purposes of delay or increasing litigation costs;
and (4) whether her attacks on her opponents and the dis-
trict judge were appropriate advocacy.
Nora did not limit herself to one proper response. On
September 2, 2014, she submitted a petition for rehearing en
banc on behalf of herself and Spencer, rehashing her frivo-
lous appellate arguments. On September 19, she filed both a
“partial response to order to show cause (all rights re-
served)” and a separate motion to stay further proceedings
pending a petition for writ of certiorari. On October 3, after
the court denied her request for a stay of proceedings, she
filed a citation of additional authority under Circuit Rule
28(e) to bring to our attention a Sixth Circuit decision that
purportedly supports her arguments on the merits. Finally,
on October 17, eleven days before the show cause hearing,
Nora moved to postpone the hearing because she had be-
come “progressively mildly cognitively impaired as the re-
sult of a whiplash injury” from a car accident on September
13. We denied the request to postpone the hearing but
granted Nora, or an attorney on her behalf, leave to argue by
speakerphone. On October 28, Nora appeared in person for a
20-minute hearing.
No. 13-2676 5
II. Discussion
In responding to our earlier opinion, Nora has dug in her
heels and continues to press the same arguments that were
thoroughly rejected in the district court and our earlier opin-
ion. Nora spends much of her response quoting portions of
our earlier opinion and arguing that she could prove them
wrong if given an evidentiary hearing. She made the same
argument at her hearing. But Nora fails to specify what evi-
dence she would present to undermine our opinion; she
merely declares—without citation to the record—that a doz-
en different statements in our opinion were “false.” These
contentions do nothing to justify the removal, motion to re-
consider, and appeal in this case. She also argues that she
properly appealed on her own behalf because “the effect of
the district court decision was to require her to indemnify
Ms. Spencer.” But as we explained in our earlier opinion, the
award was against Spencer, not Nora, and Nora has not
shown that she agreed to indemnify Spencer.
Nora also argues that, by depriving her of an evidentiary
hearing, we violated her constitutional right to due process,
citing In re Ruffalo, 390 U.S. 544 (1968). That argument is
frivolous. Ruffalo holds that an attorney must receive fair no-
tice of adverse charges and an opportunity to respond before
being disciplined. Id. at 550; see Lightspeed Media Corp. v.
Smith, 761 F.3d 699, 704 (7th Cir. 2014). These requirements
were satisfied here through our opinion and subsequent or-
der describing our concerns, and our allowance of time to
respond and a hearing.
Sanctions are warranted under Rule 38 when a litigant or
attorney presents appellate arguments with no reasonable
expectation of success for the purposes of delay, harassment,
6 No. 13-2676
or sheer obstinacy. See Wachovia Sec., LLC v. Loop Corp., 726
F.3d 899, 909–10 (7th Cir. 2013); Hartz v. Friedman, 919 F.2d
469, 475 (7th Cir. 1990); Mays v. Chi. Sun-Times, 865 F.2d 134,
138–39 (7th Cir. 1989). Nora’s responses provide us with no
persuasive reason to doubt that her arguments in this appeal
were motivated by improper purposes. We note that this is
far from the only case—from the last two years alone—
where Nora has raised frivolous and unsupported allega-
tions of fraudulent mortgage documents. See In re Residential
Capital, LLC, No. 12-12020 (MG), 2013 WL 6227582, at *2
(Bankr. S.D.N.Y. Nov. 27, 2013) (concluding that “[a]lmost
everything asserted in the [Response Nora filed] is frivo-
lous” as “most of the Response contains unsupported allega-
tions of fraud and various constitutional violations”); Rinaldi
v. HSBC Bank USA, N.A., Nos. 13-CV-336-JPS, 13-CV-643-
JPS, 2013 WL 5876233, at *9--10 (E.D. Wis. Oct. 31, 2013) (re-
jecting numerous claims against a mortgage as lacking “any
arguable basis” and noting that Nora’s briefs were “almost
unintelligible”); In re Schmid, 494 B.R. 737, 752 (Bankr. W.D.
Wis. 2013) (rejecting fraud allegations as based on Nora’s
opinions drawn “without the benefit of a factual or legal ba-
sis”); see also Van Stelton v. Van Stelton, 994 F. Supp. 2d 986,
994 (N.D. Iowa 2014) (refusing to dismiss abuse-of-process
claim alleging that plaintiffs represented by Nora brought
lawsuit for improper purposes).
Nora also fails to alleviate our concern about her engag-
ing in “conduct unbecoming a member of the court’s bar”
under Rule 46(c). She contends that her comments during
this litigation have amounted to nothing more than unsanc-
tionable rudeness, citing In re Snyder, 472 U.S. 634 (1985). In
Snyder, the Supreme Court concluded that a single ill-
mannered letter did not rise to the level of “conduct inimical
No. 13-2676 7
to the administration of justice” that is sanctionable under
Rule 46(c). Id. at 645–47; see In re Lightfoot, 217 F.3d 914, 916–
17 (7th Cir. 2000) (discussing this standard and collecting
cases applying it). But Nora’s conduct is more egregious
than that in Synder. As noted in our earlier opinion, Nora has
repeatedly acted with needless antagonism toward opposing
counsel and judicial officers. In her responses to our order to
show cause, she has refused to back down from her accusa-
tions of libel against Judge Crabb and “actionable civil fraud
and racketeering” against opposing counsel. She denies ac-
cusing the state court judge of altering transcripts, but the
record belies her denial: she not only made the accusations
but moved for substitution of the judge on that basis. She
also now derides “this panel and many of the judges in this
circuit” as being biased “against homeowners’ rights to be
heard and defend their homes.” This bandying about of se-
rious accusations without basis in law or fact is unacceptable
and warrants sanctions. See In re Hendrix, 986 F.2d 195, 201
(7th Cir. 1993) (explaining that attorney’s filing of submis-
sions not grounded in law or fact is sanctionable); Mays, 865
F.2d at 140 (sanctioning attorney for falsely imputing posi-
tions on opponents and the court).
Nora suggested at her hearing that her problems repre-
sent a personal dispute with Judge Crabb, pointing out that
the judge decided to unseal Nora’s medical records in an
appeal Nora filed in her own bankruptcy case. But Nora has
failed to persuade us that the judge’s actions amounted to
anything more than adverse rulings against her. Cf. Liteky v.
United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings
alone almost never constitute a valid basis for a bias or par-
tiality motion.”). Moreover, we affirmed Judge Crabb’s dis-
missal of that case for failure to prosecute, agreeing that
8 No. 13-2676
Nora had unjustifiably prolonged the proceedings by claim-
ing to be “totally disabled” even though she continued to
actively litigate. See In re Nora, 417 F. App’x 573, 575–76 (7th
Cir. 2011). When we questioned Nora about the lack of basis
for her libel accusations at the hearing in this case, she pro-
posed that she could substantiate her accusations if allowed
to discuss them with us in chambers. There is no reason to
believe that allowing Nora to disparage Judge Crabb in pri-
vate would convince us that sanctions are inappropriate.
Furthermore, a review of Nora’s other recent litigation
makes clear that she has a pattern of engaging in this type of
antagonistic behavior. The chief bankruptcy judge of the
Western District of Wisconsin criticized Nora this past
summer for repeatedly disregarding the judge’s instructions
about the court’s jurisdictional and constitutional limits. In re
Bechard, Bankr. No. 14-11862-13, 2014 WL 3671419, at *6
(Bankr. W.D. Wis. July 21, 2014). Nora then challenged that
decision through a petition for a writ of mandamus, arguing
that the judge had issued the decision for the sole purpose of
defaming her. Nora v. Furay, No. 14-cv-527-jdp, 2014 WL
4209608 (W.D. Wis. Aug. 25, 2014). The district court found
that the judge’s “stern, but restrained, criticism” of Nora had
been “well within the bounds of propriety and civility,”
though “Nora’s petition [was] not.” Id. at *3 n.7. Additional-
ly, Nora was recently sanctioned $1,000 by another district
judge in this circuit for ignoring the judge’s “extremely clear
warning” against filing frivolous submissions. Rinaldi, Nos.
13-CV-336-JPS, 13-CV-643-JPS, ECF Doc. 48, at 3 (E.D. Wis.
Apr. 9, 2014). Earlier in that case, the judge observed that, as
in this case, Nora had “at every turn filed briefs that ha[d]
done little to clarify the matters under consideration while
further confusing matters,” noting that Nora’s filings lacked
No. 13-2676 9
coherent focus, cited controlling legal authority sparingly if
at all, rehashed rejected arguments, and contained “irrele-
vant and argumentative language that has no place in a legal
brief.” Rinaldi, Nos. 13-CV-336-JPS, 13-CV-643-JPS, ECF Doc.
37, at 2 (E.D. Wis. Dec. 13, 2013). We affirmed that sanction
on appeal. Rinaldi v. HSBC USA, N.A., Nos. 13-3865, 14-1887
(7th Cir. Feb. 11, 2015). There is also a pending disciplinary
case against Nora in Wisconsin. See Office of Lawyer Regula-
tion v. Nora, No. 2013AP000653-D (Wis. filed Mar. 20, 2013).
Because the $1,000 sanction imposed in Rinaldi does not
appear to have deterred Nora from continuing to submit
frivolous and needlessly antagonistic filings, we now impose
an increased sanction of $2,500. We suspend this sanction,
however, until the time, if ever, that Nora submits further
inappropriate filings. We also direct the clerk of this court
to forward a copy of this order and our earlier opinion to the
Office of Lawyer Regulation of the Wisconsin Supreme
Court.