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Bennett v. Miller

United States District Court, Eighth Circuit

January 7, 2014

TAMRA BENNETT, Plaintiff,
v.
ANN MARIE MILLER, Defendant.

MEMORANDUM OPINION AND ORDER

CHARLES B. KORNMANN, District Judge.

Plaintiff Tamra Bennett ("Bennett") filed a complaint in South Dakota Circuit Court, Fifth Judicial Circuit, Walworth County, to foreclose on a contract for deed. Defendant Ann Marie Miller ("Miller") filed a notice of removal, along with a motion for leave to proceed in forma pauperis. Plaintiff filed a motion to remand, for attorneys fees, and for an injunction preventing defendant from filing further frivolous pro se actions. Miller filed no response.

The caption in state court described the defendant as Ann Miller acting with a power of attorney for a limited liability company. This is a curious caption, to say the least. Ifyou sued General Motors Corporation you would not name the corporate president who happened to sign for GMC. The confusion stems from the contract for deed having been executed in California without Bennett's attorney being present. The confusion was caused by Miller who has since admitted that she was, in truth, the buyer. If an L.L.C. had some interest in the purchase, Miller would not be allowed, as a non-lawyer, to represent the L.L.C. in court. There is great doubt whether the L.L.C. named even exists. Miller has never produced any power of attorney for the L.L.C. Miller is the sole party in interest as the buyer under the contract for deed.

BACKGROUND

On February 2, 2012, Bennett, a resident of Mobridge, South Dakota, entered into a contract for deed to sell eight rental properties to J Gould LLC, represented by Miller to be from Jefferson, Colorado. The contract was signed by Miller, who represented that she had a power of attorney to sign for J. Gould LLC. The contract was executed in San Diego, California.

Bennett filed a complaint in Walworth County, Fifth Judicial Circuit, South Dakota, seeking to foreclose on the contract for deed on August 6, 2012. Miller filed an answer on August 17, 2012, representing her address to be Denver, Colorado, and claiming she signed the contract for deed as a tenant in common with J Gould LLC. She also counterclaimed for the down payment and monthly installments paid for the property and sought punitive damages for fraud and bad faith.

Miller falsely claims that the contract for deed signed is not the version claimed by plaintiff but is instead a "marked-up copy" which substituted Colorado for South Dakota in the title insurance section, contained a hand written Colorado choice of law provision, struck through the standard contract for deed forfeiture of payments provision, and struck the merger clause. South Dakota Circuit Court Judge Jack Von Wald rejected Miller's claim that the "marked-up copy" is the copy executed by the parties and that finding is entitled to preclusive effect.

The state court materials filed in this case show that Miller defaulted on the contract for deed by failing to obtain insurance coverage for the properties and by possibly "spooking" insurance companies so as to make the property uninsurable. When given notice to cure, Miller contacted insurance companies, telling them the properties had mold damage and soliciting notices of uninsurability.

Miller filed in state court frivolous motions in the foreclosure proceeding for default judgment and several for dismissal of the receiver. All such motions were denied. A trial was started on January 25, 2013, at which time plaintiff presented her case. The continuation of the trial was scheduled for May 3, 2013. As shall be discussed later, on April 23, 2013, Miller filed a Chapter 13 Bankruptcy petition in the District of Wyoming, preventing the conclusion of the foreclosure trial. The bankruptcy petition was dismissed in July. Miller thereafter noticed the foreclosure trial for May 2013. Bennett noticed the trial for September 2013. Miller thereafter filed a notice of removal on August 26, 2013.

I find it disturbing that Miller, who represented that she gets her mail in Denver, Colorado, claimed she lived in Wyoming. Upon further review of federal court records I discovered that she has a long history of filing frivolous suits and making misrepresentations in federal court. I take judicial notice ofsuch court filings. Green v. White , 616 F.2d 1054, 1055 (8th Cir. 1980).

Miller is a disbarred attorney who formerly practiced law in Virginia with Jeffrey Kessler. Jennifer Kelley worked as a paralegal in their firm. In May 2009, Kelley informed Miller that she and Mr. Kessler had married the previous month. What followed is documented in Virginia state court criminal files as well as many federal district court and state court civil files and can be described as a pattern of stalking, physical assaults, and harassing and vexatious litigation by Miller against the Kesslers, their parents, and their lawyers. In all such cases Miller was allowed to proceed in forma pauperis, using her legal background to proceed pro se. The defendants named in her cases have not had the lUXUry of defending without incurring legal fees and court costs. Her claims involving the Kesslers are documented in an order issued by Adams County, Colorado District Judge Edward C. Moss in his January 27, 2012, order in case Nos. 10 CV 1700 and 10 CV 1702, enjoining Miller from appearing pro se in Colorado state courts and awarding costs and attorneys fees against Miller:

Ms. Miller has filed five civil actions against Jeffrey Kessler, four against Jennifer Kessler, one against Donald Kessler (Jeffrey's father), one against Constantine Kessler (Jeffrey's mother), six against the Kesslers' various attorneys, and one against Colorado District Judge Charles Scott Crabtree. These suits have been filed in the United States District Court for the District ofColorado, the District of Wyoming, and the District ofColumbia. She has also filed bankruptcy adversary proceedings in the United States Bankruptcy Court for the District of Colorado.
* * *
In addition to her civil and bankruptcy claims, Ms. Miller filed three dissolution actions against Mr. Kessler in three different Colorado counties, despite, as courts have repeatedly determined, that she was never married to him.
* * *
Ms. Miller initiated these two lawsuits on October 18, 2010 by making claims against Mr. Kessler in Case No. 10 CV 1700 for slander, breach ofcontract, and intentional infliction ofemotional distress; and similar claims in Case No. 10 CV 1702 against Mrs. Kessler.
* * *
On December 2, 2010, District Judge Katherine Delgado dismissed the underlying claims with prejudice, finding that the two actions were "vexatious" and brought in "bad faith to annoy and harass Defendants." On December 28, 2010, Judge Delgado issued orders awarding Defendants reasonable attorney's fees.
* * *
On June 16, 2011, the Clerk of Court issued a Writ of Garnishment against Ms. Miller to enforce the Order for Judgment. In response, Ms. Miller filed a claim of exemption. She also initiated a Chapter 13 bankruptcy proceeding in the United States Bankruptcy Court for the District ofColorado and named eight different parties in adversary proceedings, including: Jeffrey Kessler, his wife, his mother, his father, their Colorado attorneys, and Judge Crabtree.

Judge Moss found that Miller intended to continue to file lawsuits against the Kesslers until Mr. Kessler leaves his wife. Judge Moss held that Miller was not filing lawsuits to vindicate legal rights but ...


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