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UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION



ABDIEL ECHEVERRIA and
ISABEL SANTAMARIA

Plaintiffs, CASE NO: 6:14-cv-00486-CEM-GJK



BANK OF AMERICA, N.A., URBAN
SETTLEMENT SERVICES d/b/a URBAN
LENDING SOLUTIONS and CARLISLE & GALLAGHER
CONSULTING GROUP, INC.

Defendants,
________________________/


PLAINTIFFS MOTION FOR DISQUALIFICATION OF MAGISTRATE JUDGE
GREGORY J. KELLY

Plaintiffs Abdiel Echeverria and Isabel Santamaria move the Court to disqualify The Honorable
Magistrate Judge Gregory J. Kelly from participation in this case pursuant to 28 USC 455 on the
grounds that the magistrate is disqualified under 28 USC 455(a) and (b). In support of this
Motion, Plaintiffs respectfully present the attached Memorandum of Law.




[Signatures on next page]
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Dated this 3rd day of October, 2014.

Respectfully submitted,




___________________________________
Abdiel Echeverria Plaintiff (pro se)



___________________________________
Isabel Santamaria Plaintiff (pro se)


499 Cellini Ave NE
Palm Bay, Florida 32907
(321) 676-4198
(321) 750-6697
Email: andyecorso@yahoo.com


CERTIFICATE OF SERVICE

I do hereby CERTIFY that a true and correct copy of the foregoing has been furnished to
Marc T. Parrino. Esq.; Kevin W. Cox, Esq.; Gary Soles; and Meghan D. Engle by:
( ) mail ( ) fax ( ) mail and fax ( ) email
on this_______ day of____________________, 20______.


____________________________________ ____________________________________
Abdiel Echeverria Isabel Santamaria

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UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION



ABDIEL ECHEVERRIA and
ISABEL SANTAMARIA

Plaintiffs, CASE NO: 6:14-cv-00486-CEM-GJK



BANK OF AMERICA, N.A., URBAN
SETTLEMENT SERVICES d/b/a URBAN
LENDING SOLUTIONS and CARLISLE & GALLAGHER
CONSULTING GROUP, INC.

Defendants,
________________________/

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR DISQUALIFICATION OF
MAGISTRATE JUDGE GREGORY J. KELLY

Plaintiffs Abdiel Echeverria and Isabel Santamaria, pro se plaintiffs in this instant action,
pursuant to 28 U.S.C.A. 455(a)(b)(1)(2), hereby file this Motion and supporting
Memorandum of Law to show that the Honorable Magistrate Judge Gregory J. Kelly, has
demonstrated a personal bias and prejudice against them and has a conflict of interest in the
current case. Based on the Motion and supporting Memorandum of Law and for the reasons
specified in the Plaintiffs Opposition To Magistrate Judge Gregory J. Kellys Report and
Recommendation dated October 2, 2014
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, Plaintiffs Abdiel Echeverria and Isabel Santamaria
respectfully request that the Honorable Magistrate Judge Gregory J. Kelly proceed no further in
this action, that all motions assigned to him and decided in this action be vacated and that all his

1
As of the date this Motion for Disqualification was mailed, Plaintiffs Opposition to Magistrate Judge Gregory J.
Kellys Report and Recommendation (Doc. 68) had yet to be docketed by the clerk or assigned a docket number.
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opinions and reports be vacated in its entirety due to bias, partiality and conflict of interest and
that another magistrate judge that has had no affiliation with Akerman Senterfitt or to the
Defendants, be assigned in his place.
INTRODUCTION
The integrity of our judicial system rests, in large part, upon the assumption that judges
will regard the matters set before them with impartiality. The United States Constitution
contains various safeguards to ensure that, where a judge is unable to regard a particular matter
impartially, that judge shall be removed from considering the case.
It is not enough that judges be impartial; the public must perceive them to be so. The
Code of Conduct for United States Judges therefore admonishes judges to act at all times in a
manner that promotes public confidence in the integrity and impartiality of the judiciary and to
avoid impropriety and the appearance of impropriety in all activities
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. So it is with
disqualification requirements for federal judges, which require disqualification when a judges
impartiality might reasonably be questioned.
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During the preparation of their Opposition to Magistrate Judge Kellys Report and
Recommendation, the Plaintiffs became aware of Judge Kellys prior work history. Therefore,
this recusal motion has been filed "at the earliest possible moment after obtaining the facts
demonstrating a basis for recusal." See U.S. v. Occhipinti, 851 F. Supp. 523, 567 (So. Dist., NY
1993).
Judge Kellys adamant behavior and his refusal to acknowledge the facts or the evidence
of this current case raised the suspicions of the Plaintiffs and upon further investigation, the

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Code of Conduct for United States Judges, Canon 2A.
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28 U.S.C. 455(a).
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Plaintiffs realized his affiliation with Akerman Senterfitt, his former employer, which
represented Bank of America in prior litigation with the Plaintiffs and which prior representation
comes into question in this current case. The Plaintiffs have strongly alleged in this current
action, in which Judge Kelly refused to address in his Report and Recommendation, that
Defendant Bank of America and its co-conspirators (Urban & CGCG) committed fraud and
misconduct in prior litigation. Plaintiffs filed documents signed by Akerman Senterfitt attorneys
(some were notarized)
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in this current case in which Judge Kelly refused to address in his
recommendation.
Again, Plaintiffs file a timely motion requesting recusal after learning of the relevant
facts, which collectively formed a basis for recusal. See Apple v. Jewish Hosp. & Med. Ctr., 829
F.2d at 333 (noting that a party should generally raise a recusal issue at the earliest possible
moment after obtaining knowledge of facts demonstrating the basis for such a claim) (emphasis
added).
Plaintiffs now turn to the legal basis under which Magistrate Judge Kellys actions merits
his disqualification from the instant action.
LEGAL STANDARD

Any justice, judge or magistrate of the United States shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned. Liteky v.United States,510
US 540, 547 (Citing 28 U.S.C. 455(a)). Under 28 U.S.C. 455(a), what matters is not the
reality of bias or prejudice but its appearance. Id. at 548. Though there is an extrajudicial source
factor one which examines whether the evidence of bias on the part of a judge came from an
extrajudicial source this factor has several exceptions, one of which is the pervasive bias

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See Judicial Notice, Doc. 40 & 57.
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exception. Id.at 551 (Citing Davis v. Board of School Commrs of Mobile County, 517 F. 2d
1044, 1051(CAS 1975)). The Davis Court defined the exception as follows: there is an exception
where such pervasive bias and prejudice is shown by otherwise judicial conduct as would
constitute bias against a party. Davis v. Board of School Commrs of Mobile County, 517 F. 2d
1044, 1051.
By statute, a federal judge is duty-bound to disqualify him- or herself from any
proceeding on which that judges impartiality might reasonably be questioned, or where the
judge has exhibited personal bias against a party:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be
questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party[.]
28 U.S.C.A. 455(a),(b) (emphasis added).
Added to the clear language of Section 445, which requires disqualification where the
court's impartiality might reasonably be questioned, is the forceful holding of the U.S. Supreme
Court in Liteky v. U.S., 510 U.S. 540, 557 (1994), clearly requiring disqualification under the
circumstances presented here:
Section 455(a) provides that a judge "shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned." For present purposes, it should
suffice to say that Section 455 (a) is triggered by an attitude or state of mind so resistant
to fair and dispassionate inquiry as to cause a party, the public, or a reviewing court to
have reasonable grounds to question the neutral and objective character of a judge's
rulings or finding".
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ARGUMENT
I. CONFLICT OF INTEREST, BIAS, PARTIALITY.
Several circuits have ruled that, pursuant to 455(a), judges have an ethical duty to
disclose on the record information which the judge believes the parties or their lawyers might
consider relevant to the question of disqualification. American Textile Mfrs. Inst., Inc. v.
Limited, Inc., 190 F.3d 729, 742 (6th Cir. Ohio 1999) (quotation marks omitted); see also U.S. v.
Murphy, 768 F.2d 1518, 1536-37 (7th Cir. 1985) (same); Parker v. Connors Steel Co., 855 F.2d
1510, 1525 (11th Cir. 1988) (same).
In discussing the import of Section 455(b), Chief Justice Rehnquist noted, in his dissent,
in Lilyeberg v. Health Services Acquisition Corp., 486 U.S. 847, 871 (1988) that: "Subsection (b)
of 455 sets forth more particularized situations in which a judge must disqualify himself.
Congress intended the provisions of Section 455 (b) to remove any doubt about recusal in
cases where a judge's interest is too closely connected with the litigation to allow his
participation."
The goal of Section 455 is to avoid even the appearance of partiality. Inherent in
455(a)s requirement that a judge disqualify himself if his impartiality might reasonably be
questioned is the principle that our system of justice must satisfy the appearance of justice.
See Parker v. Connors Steel Co., 855 F.2d 1510, 1523 (11th Cir. 1988) (quoting Offutt v. United
States, 348 U.S. 11, 14, 75 S.Ct. 11 (1954)). The very purpose of 455(a) is to promote
confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.
See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 2205
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(1987) (citing H.R.Rep. No. 93-1453, at 5). Thus, it is critically important ... to identify the facts
that might reasonably cause an objective observer to question [the judges] impartiality. Id.
Judge Kellys actions take him far beyond the impartiality that a judge should exhibit - 28
USC 455(a) & (b). He has created for himself a strong appearance of partiality and bias in
favor of the defendants, particularly BANA. And actually, it's not just an appearance of partiality
and bias. In truth and fact, he has gone out of his way to defy the Supreme Court and the docket
to help his former boss Akerman Senterfitt and former clients Bank of America.
This sets forth the origins of the Court's bias: an extrajudicial episode and prior
association. U.S. v. Zagaire, 419 F. Supp. 494 (No. Dist. Cal. 1976), and documents with
particularity the manifestation of bias as reflected in the current proceeding.
On August 8, 2014, presiding Judge Carlos E. Mendoza rightfully issued a Scheduling
Order (Doc. 58) for this current case. This case was assigned a trial by jury and referred to
mediation (Doc. 59). This case is currently in discovery with a deadline of December 31, 2014
and Plaintiffs have already submitted an Expert Witness Report by October 1, 2014. The
Plaintiffs were in the process of preparing their interrogatories and document request when, out
of the blue, Judge Kelly steps in and issues a pushy Report and Recommendation. This would be
a saving grace for the defendants thereby saving discovery time and expenses for his friends
and avoiding further exposure that the Plaintiffs have in store for them in discovery. This is truly
a manifest injustice to the Plaintiffs in this case. The Plaintiffs have already suffered enough
abuse and damages at the hands of the defendants and injustice during prior litigation.
Instead of rightfully allowing this case to develop through discovery and proceed to
mediation and likely to trial by jury, Magistrate Judge Kelly wouldnt have it! It was imperative
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that he stop it NOW and interject his erroneous Report and Recommendation with the intention
of assisting the Defendants, especially Bank of America and his former employer Akerman
Senterfitt who is somewhat implicated in this case
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. In their complaints and responses, the
Plaintiffs have brought prior summary judgments into question as being issued based on fraud
and misconduct by the Defendants, particularly Bank of America while being represented by
Akerman Senterfitt.
As the Plaintiffs have thoroughly explained in their Opposition to Magistrate Judge
Gregory J. Kellys Report and Recommendation, there is more than enough reason to believe
that judge Kellys partiality is not only reasonably questioned but clearly evident.
II. HONORABLE MAGISTRATE JUDGE KELLYS IMPARTIALITY
MIGHT REASONABLY BE QUESTIONED.

In light of the facts presented herein and in the Plaintiffs Opposition to Magistrate
Judge Gregory J. Kellys Report and Recommendation
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, it is indisputable that an objective
analysis of these facts would reasonably call into question Judge Kellys impartiality.
The Judges conduct in entering his Report and Recommendation (Doc. 68) and most
recently in his Order (Doc. 70) regarding Plaintiffs Motion to Compel causes the Plaintiffs a
well-reasoned fear that he is not neutral and detached, necessitating the instant motion. Clearly,
Magistrate Judge Kelly has essentially bent over backwards to provide his input in this case and
make sure that it gets dismissed. His consistent input is quite disturbing. After issuing his Report
and Recommendation, his most recent Order (Doc. 70) denying the Plaintiffs Motion to Compel
the following day it was filed, his very first words in this Order were:

5
See Judicial Notices, Doc. 40 & 57.
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Docket number had not yet been assigned when the Plaintiffs mailed this Motion for Disqualification.
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On September 23, 2014, the undersigned entered a report and recommendation
recommending that the Court dismiss this action with prejudice as barred by the doctrine
of res judicata.
That is how Judge Kelly starts his introduction in denying Plaintiffs Motion to Compel,
which by the way, whether he likes it or not, the Plaintiffs are in fact in discovery. We can
definitely assume that he is saving his favorite defendants some much needed time, money and
aggravation.
Nonetheless, he denies the Plaintiffs Motion to Compel
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with his Order
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and states for
doing so reason that the deadline for objections has not yet passed and due to the pending
recommendation that the case be dismissed with prejudiced, the Court finds that in the interest of
the parties
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and the Courts efficiency, the Motion should be denied.
The Plaintiffs filed their Motion to Compel requesting that the Defendants provide
Initial Disclosures which are required by this Court and by the Federal Rules of Civil
Procedure early in discovery. The Plaintiffs have demonstrated Defendant BANAs careless
demeanor and misconduct in this regard and still, Judge Kelly continues to provide an umbrella
of protection for Defendant Bank of America, thereby violating Rule 26 and Rule 37 of the
Federal Rules of Civil Procedure and violating the Plaintiffs due process rights under these
rules in the process.
It is clearly evident that Judge Kelly is going above and beyond with his involvement in
this particular case by emphatically recommending this case wrongfully dismissed, not once but

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Doc. 69
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Doc.70
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The interest in the parties that he is clearly biased in favor for, BANA and its co-conspirators along with the
documents and accusations that might implicate his former employer Akerman Senterfitt.
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twice, and paving an easy highway for Defendant BANA and its co-conspirators in the process.
The only thing missing in Judge Kellys written Order
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and his Recommendation
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are flashing
neon lights showing his bias and partiality in favor of the Defendants. He will not let it go and
has now made it his personal mission to have the Plaintiffs claims wrongfully dismissed.
CONCLUSION
One of the foundational underpinnings of our judicial system is equality under the law
Plaintiffs will be deprived of this constitutional guarantee and would suffer another manifest
injustice should its cases be contaminated by a biased magistrate judge whos Order against the
Plaintiffs is of a personal nature and has already deemed the Plaintiffs current action as barred
by res judicata even though he has clearly not reviewed their complaints, their new causes of
action which includes events and exhibits after litigation, their exhibits, their judicial notices,
their new facts, and their new claims of fraud which implicates their former employer and likely
the clients that he used to represent, Bank of America
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.
All of these factors cause the Plaintiffs, and would cause a casual observer, to reasonably
question the partiality of the Honorable Judge Gregory J. Kelly and therefore, the Plaintiffs
respectfully request that this Court disqualify Judge Kelly from this case and all his biased orders
and recommendations be vacated in the process. This motion should be granted.

[Signatures on next page]

10
Doc. 70.
11
Doc. 68.
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For many years, Bank of America has been one of Akerman Senterfits biggest clients. It is almost impossible
that Judge Kelly did not represent several Bank of America cases during his employment as an attorney with
Akerman Senterfitt.
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Dated this 3rd day of October, 2014.

Respectfully submitted,




___________________________________
Abdiel Echeverria Plaintiff (pro se)



___________________________________
Isabel Santamaria Plaintiff (pro se)


499 Cellini Ave NE
Palm Bay, Florida 32907
(321) 676-4198
(321) 750-6697
Email: andyecorso@yahoo.com


CERTIFICATE OF SERVICE

I do hereby CERTIFY that a true and correct copy of the foregoing has been furnished to
Marc T. Parrino. Esq.; Kevin W. Cox, Esq.; Gary Soles; and Meghan D. Engle by:
( ) mail ( ) fax ( ) mail and fax ( ) email
on this_______ day of____________________, 20______.


____________________________________ ____________________________________
Abdiel Echeverria Isabel Santamaria