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  • Discovery Tactics

Cases With Interesting Arguments
| June 29, 2012

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19 Fla. L. Weekly Supp. 638aOnline Reference: FLWSUPP 1908COLB Mortgage foreclosure — Conditions precedent — Notice advising homeowners of right to file separate court proceeding in order to raise defenses to foreclosure did not satisfy requirement of mortgage contract that mortgagee notify homeowners of right to raise defenses in foreclosure proceeding.

HSBC BANK USA, as Trustee for OMAC 2005-4, Plaintiff, v. JASON E. COLBY, et al., Defendants. Circuit Court, 6th Judicial Circuit in and for Pasco County. Case No. 51-2008-CA-10374 WS/ J3. April 20, 2012. Walter L. Schafer, Jr., Judge. Counsel: James Spanolios, Shaprio, Fishman, Gaché, LLP, Tampa, for Plaintiff. Michael Alex Wasylik, Ricardo & Wasylik, PL, Dade City, for Defendant.


THIS MATTER came before the Court at non-jury trial held March 5, 2012. Based upon the pleadings, the law, arguments and evidence presented, the Court finds and concludes as follows:

By its complaint and amended complaint, plaintiff sought a final judgment of foreclosure. Defendants Jason Colby and Flordeliza Colby, through counsel, filed eighteen (18) affirmative defenses. Affirmative defense 9 provided: “Plaintiff’s claims are barred because it substantially failed to comply with its contractual obligations regarding the timing, contents, and form of the notice required by Paragraph 22 of the Mortgage.” In response to this affirmative defense, plaintiff, in Paragraph 4 stated: “In specific response to Defendants’ Affirmative Defense that Plaintiff failed to comply with conditions precedent, Plaintiff did comply with conditions precedent and proper notification of the default was provided to Defendants in compliance with the terms of the Mortgage and Note. Defendants defaulted on their loan on July 1, 2008, a demand letter was provided on August 18, 2008, and this action was not commenced until December 2, 2008.”

At trial, the August 18, 2008, “demand letter” was admitted into evidence as plaintiff’s Exhibit D. As stated, it is defendants’ position, by affirmative defense, that plaintiff “failed to comply with its contractual obligations regarding the . . . contents . . . of the notice required by Paragraph 22 of the Mortgage.” Paragraph 22 of the mortgage provides, in relevant part: “The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure.” The undersigned concludes that this mandatory direction and language is unambiguous. However, the August 18, 2008, demand letter, again in relevant part, provided that: “This letter shall also serve as notice to you of your right . . . to bring a court action to assert the non-existence of the breach of contract or any other defense to acceleration or foreclosure.”

Although rulings of fellow trial court judges are not controlling on other trial court judges, the undersigned does agree that there is a distinction between “in the foreclosure proceeding” and “to bring a court action” which does make a difference and that plaintiff herein has failed to perform a condition precedent to filing this foreclosure action. See, Konsulian v. Busey Bank, N.A., 61 So. 3d 1283, 1285 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1164c] (The language in the mortgage is clear and unambiguous. The word “shall” in the mortgage created conditions precedent to foreclosure. . . ”.) Therefore, it is

ADJUDGED that plaintiff, HSBC BANK USA, as Trustee for OMAC 2005-4, takes nothing by this action and that defendants, JASON E. COLBY and FLORDELIZA COLBY, et al., shall go hence without day.


19 Fla. L. Weekly Supp. 659bOnline Reference: FLWSUPP 1908BERR Contracts — Credit card agreement — Money lent — Creditor failed to prove valid claim for money lent where consumer debt claim was based on written contract, and creditor failed to provide amounts and dates money was lent and interest due — Unjust enrichment — Creditor cannot maintain action for unjust enrichment where underlying debt was based on written contract — Standing — Creditor that failed to prove satisfaction of condition precedent of providing debtor with notice of assignment of debt lacks standing.

EQUABLE ASCENT FINANCIAL, LLC, Plaintiff, vs. ANGELA BERRIOS, Defendant. County Court, 9th Judicial Circuit in and for Osceola County. Case No. 2011-CC-1772. April 24, 2012. Honorable Carol Draper, Judge.



THIS CAUSE having come before the Court on 3/7/12, and the Court having reviewed the Motion(s) being otherwise duly advised in the premises, it is hereby


1. Defendant’s Motion for Summary Judgment is hereby GRANTED.


Plaintiff filed an action against Defendant, claiming it was entitled to recover on an alleged credit card debt. Plaintiff asserted claims for Money Lent and Unjust Enrichment. However, Plaintiff did not provide any admissible evidence to substantiate any of its claims nor evidence to refute Defendant’s Motion for Summary Judgment.

Plaintiff’s case failed to prove a valid claim for Money Lent since this consumer debt claim was based on written contract. Contractors Unlimited. Inc. v. Nortrax Equip. Co., Southeast, Etc., 833 So. 2d 286, 288 (Fla. 5th DCA 2002) [28 Fla. L. Weekly D141a]; Samuels v. King Motor Co., 782 So. 2d 489, 500 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D849a]. The Florida Supreme Court approved forms for a claim of Money Lent claims requires Plaintiff to provide the amounts and date(s) the money was lent and interest was due. None of this was proven by Plaintiff.

Additionally, Plaintiff failed to prove a cause of action for equitable relief of unjust enrichment since the underlying debt was based on a written contract. Unjust enticement is based on a legal fiction that there is an implied, rather than written contract. This fiction cannot be maintained when the rights of the parties are described in a written contract. See Carol Ann May v. Sessums & Mason, P.A., 700 So. 2d 22 (Fla. 2d DCA 1994); Corn v. Greco, 694 So.2d 833 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D1289a]; Hazen v. Cobb, 96 Fla. 151 (Fla. 1928); and Johny Baron, Jr. v. Ahmed M. Osman a/k/a Ahmen M. Osman, 35 Fla. L. Weekly D1464a (5th DCA 2010). Plaintiff cannot sue on an equitable theory, such as unjust enrichment or quantum meruit, to prove a debt if an express contract exits. See Ocean Communications, Inc. v. Bubeck, 956 So. 2d 1222 (4th DCA 2007) [32 Fla. L. Weekly D1344a].

Although Plaintiff alleged compliance with conditions precedent, Plaintiff has failed to prove notice of assignment to the consumer, as required by Fla. Stat. §559.715. This statute requires the assignee of a consumer debt to notify the debtor of the assignment of the debt within 30 days of the assignment, and timely compliance with the notification requirement is a condition precedent before filing suit. By not proving compliance, the Plaintiff, therefore, failed to prove they were the real party in-interest and thus lacked standing. See Penabad v. A.G. Gladstone Assocs., 823 So. 2d 146, 147 (Fla. 3rd DCA 2002) [27 Fla. L. Weekly D1373d]; BAC Funding Consortium, Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936, 938 (Fla. 2nd DCA 2010) [35 Fla. L. Weekly D369a]; Troupe v. Redner, 652 So. 2d 394, 395 (Fla. 2nd DCA 1995) [20 Fla. L. Weekly D395a]; Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So. 2d 1281, 1285 (Fla. 2nd DCA 2005) [30 Fla. L. Weekly D2622b]; Unifund CCR Partners v. Cavender, 14 Fla. L. Weekly Supp. 975b (Orange Cty. Ct. 2007); Palisades Collection, LLC v. Fedorak, 15 Fla. L. Weekly Supp. 913b (Wakulla Cty. Ct. 2008) Unifund CCR Partners v. Thomas, 18 Fla. L. Weekly Supp. 94b (Hillsborough Cty. Ct. 2010). CACH, LLC, v. Garcia, Edilio (2010-SC-4785-O) Asset Acceptance, LL v. Boyer, Jeffrey, (2010-21719-CONS) [19 Fla. L. Weekly Supp. 216a], Equable Ascent Financial, LLC v. Davis, Michael (2011-CC-013899-O), Midland Funding LLC v. Waloch, Jadwiga (2011-CC-241) Midland Funding, LLC v, Stovall Christ, Angeleta (11-CC-2411-ES) Portfolio Recovery Associates, LLC v. Veverka, Miloslav (2010-SC-5288) [18 Fla. L. Weekly Supp. 299b] Prime Acceptance Corporation v. Walters, Robert L. and Cheryl (2011-SC-68).


19 Fla. L. Weekly Supp. 665aOnline Reference: FLWSUPP 1908HICK Contracts — Unjust enrichment — Creditor cannot pursue action for unjust enrichment where express written contract between debtor and original creditor exists.

CITIBANK, N.A., Plaintiff, vs. JEFFERY HICKS, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2011-CC-018996-O. April 19, 2012. Honorable Wilfredo Martinez, Judge.


THIS CAUSE having come before the Court, and the Court having reviewed the Motion(s) being otherwise duly advised in the premises, it is hereby


1. Plaintiff filed a two count complaint, consisting of Account Stated and Unjust Enrichment

2. Plaintiff then filed their Motion for Summary Judgment, which included addressing the issue of Unjust Enrichment.

3. Plaintiff failed to timely respond to Defendant’s Request for Admissions, which were deemed admitted pursuant to Fla. R. Civ. P. 1.370.

4. Plaintiff also failed to file any Affidavit in opposition to Defendant’s Motion for Summary Judgment. Based on Baron v. Osman, 39 So.3d 449 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D1464a] and Ocean Communications, Inc. v. Bubeck, 768 So.2d 465 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D1344a], the Plaintiff is precluded from maintaining an action for Unjust Enrichment while there is an express written agreement between the consumer and the original creditor.

5. Therefore this Court grants Defendant’s Motion for Summary Judgment as it relates to Count II, Unjust Enrichment in Plaintiff’s Complaint.

6. Defendant’s Motion to Dismiss Count I, Account Stated, of Plaintiff’s Complaint is granted with leave to amend. If plaintiff chooses to amend, they shall have twenty (20) days from the 4/11/12 hearing to file an amended complaint and they may only plead a breach of contract action.


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