The limitations on actions governing civil lawsuits are generally as follows:
- Within twenty years.–An action on a judgment or decree of a court of record in this state.
- Within five years.–
- An action on a judgment or decree of any court, not of record, of this state or any court of the United States, any other state or territory in the United States, or a foreign country.
- A legal or equitable action on a contract, obligation, or liability founded on a written instrument.
- An action to foreclose a mortgage.
- Within four years.—
- An action founded on negligence.
- An action relating to the determination of paternity, with the time running from the date the child reaches the age of majority.
- An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest; except that, when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. In any event, the action must be commenced within 15 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.
- An action to recover public money or property held by a public officer or employee, or former public officer or employee, and obtained during, or as a result of, his or her public office or employment.
- An action for injury to a person founded on the design, manufacture, distribution, or sale of personal property that is not permanently incorporated in an improvement to real property, including fixtures.
- An action founded on a statutory liability.
- An action for trespass on real property.
- An action for taking, detaining, or injuring personal property.
- An action to recover specific personal property.
- A legal or equitable action founded on fraud.
- A legal or equitable action on a contract, obligation, or liability not founded on a written instrument, including an action for the sale and delivery of goods, wares, and merchandise, and on store accounts.
- An action to rescind a contract.
- An action for money paid to any governmental authority by mistake or inadvertence.
- An action for a statutory penalty or forfeiture.
- An action for assault, battery, false arrest, malicious prosecution, malicious interference, false imprisonment, or any other intentional tort, except as provided in subsections (4), (5), and (7).
- Within two years.—
- An action for professional malpractice provide the exclusive remedy.
- An action to recover wages or overtime or damages or penalties concerning payment of wages and overtime.
- An action for wrongful death.
- o An action for libel or slander.
- Within one year.—
- An action for specific performance of a contract.
If the bank has the proper paperwork i.e. Mortgage, Promissory Note, Acceleration letter, and the Fair Debt letter, and they can prove they own the Mortgage and Note and or sent out the other paperwork then it is pretty hard to avoid the foreclosure, and the best thing is to try to stall it as long as it takes to modify your mortgage.
1. The Plaintiff has failed to state a cause of action because the Mortgage attached to the complaint does not show that the Plaintiff is the owner and holder of the Mortgage, there is no attachment that shows that Deutsche Bank National Trust Company is trustee for Long Beach Mortgage Loan Trust 2006-7. There is no attachment that shows that the Lender on the Mortgage, who is: Long Beach Mortgage Company, ever assigned or transferred its rights to Deutsche Bank National Trust Company or to Long Beach Mortgage Loan Trust 2006-7. The case should dismissed for failing to state a cause of action and for failing to attach necessary documents. (SEE Deutsche Bank National Trust Company, Trustee for Goldman Sachs-FFMLY-2004-FF3 v. Pope, 15 FLW Supp. 453 (Fla. Cir. Ct. 4th Jud. Cir. 2008); Mortgage Electronic registration Systems, Inc., v. Dean Thomas Miesmer, Deceased, Et Al., 12 FLW Supp. 845 (Fla. Cir. Ct. 4th Jud. Cir. 2005).
2. The Complaint should be dismissed because the Plaintiff has failed to plead that the mortgage being foreclosed upon was assigned and or transferred to the Plaintiff. (SEE Mortgage Electronic Registration Systems, Inc. as nominee for Wells Fargo Bank, N.A. v. Marvin Johnson, 13 FLW Supp. 42(Fla. Cir. Ct. 4th Jud. Cir. 2005); Deutsche Bank National Trust Company, As Trustee for Morgan Stanley ABS Capital 1 Inc., Trust 2005-HE2 Mortgage Pass-Through Certificates, Series, 2005-HE2, v. Yolanda Ray, 13 FLW Supp. 136(Fla. Circ. Ct. 4th Jud. Cir. 2005); Mortgage Electronic Registration Systems, Inc. as nominee for Countrywide Home Loans, Inc. v. Angela Foster, 12 FLW Supp. 648(Fla. 4th Jud. Cir. 2005).
3. The Plaintiff has failed to state a cause of action because none of its attachments establish that it has standing to bring this lawsuit. (SEE Mortgage Electronic Registration Systems, Inc. v. Carol G. Dewinter, 12 FLW Supp. 554(Fla. Cir. Ct. 4th Jud. Cir. 2005)
4. The Plaintiff has failed to state a cause of action by not attaching a promissory note to the complaint. (SEE Mortgage Electronic Registration Systems, Inc. v. Dean Thomas Miesmer, 12 FLW Supp. 845(Fla. Cir. Ct. 4th Jud. Cir. 2005); Deutsche Bank National Trust Company, Trustee for Goldman Sachs-FFMLY-2004-FF3 v. Pope, 15 FLW Supp. 453 (Fla. Cir. Ct. 4th Jud. Cir. 2008); Mortgage Electronic Registration Systems, Inc., as nominee for EMC Mortgage Corporation, v. Jannette Lee, 13 FLW Supp. 461(Fla. 4th Jud. Cir. 2006).
5. The Complaint should be dismissed for failing to join an indispensable party, and that party is the true lender listed on the Mortgage. (SEE Mortgage Electronic Registration Systems, Inc., as nominee for EMC Mortgage Corporation, v. Jannette Lee, 13 FLW Supp. 461(Fla. 4th Jud. Cir. 2006).
6. The Complaint should be dismissed because the Plaintiff never alleged nor did it comply with the Fair Debt Collection Practice Act by providing mortgagor with appropriate notice of her delinquency. Failure to provide proper statutory notice before filing suit prevents plaintiff from proceeding with foreclosure action unless and until condition precedent is satisfied. The complaint should be dismissed for violating the Federal Fair Debt Collection Practices Act. 15 U.S.C. 1692(g) requires that Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
The Defendant never received such notification. Before a Foreclosure action can be made against the Defendant the Plaintiff must prove that the aforementioned notice was sent and received by the Defendant. (SEE Nationsbank, N.S., Successor by Merger with Nations Bank, N.A. (South) Successor by Merger with NationsBank of Florida, N.A. v. Patricia L. Phillips-Jack, 5 FLW Supp. 542(Fla. Cir. Ct. 17th Jud. Cir. 1998).
7. The case should be dismissed because without a Note the property cannot be foreclosed. (SEE Mortgage Electronic Registration Systems, Inc. v. Dean Thomas Miesmer, 12 FLW Supp. 845(Fla. Cir. Ct. 4th Jud. Cir. 2005); Deutsche Bank National Trust Company, Trustee for Goldman Sachs-FFMLY-2004-FF3 v. Pope, 15 FLW Supp. 453 (Fla. Cir. Ct. 4th Jud. Cir. 2008); Mortgage Electronic Registration Systems, Inc., as nominee for EMC Mortgage Corporation, v. Jannette Lee, 13 FLW Supp. 461(Fla. 4th Jud. Cir. 2006).
8. The complaint should be dismissed because the Plaintiff has not performed all the aforementioned conditions precedent before bringing this suit, to wit: complying with Fair Debt Collection Act, attaching necessary documents.
NEIGHBOR CUT-DOWN NEIGHBOR’S TREES
Leek v. Reliance Ins. CO., 486 So.2d 701(Fla. 4th DCA 1986)
Leek v. Reliance Ins. CO., 486 So.2d 701(Fla. 4th DCA 1986)
GLICKSTEIN, Judge. Donald and Jane Leek, defendants/third party plaintiffs, appeal the trial court’s entry of summary final judgment in favor of third party defendants, Standard Fire Insurance Co. and Reliance Insurance Co. While the trial court’s order did not explain the bases for its entry, we affirm for the reasons expressed herein. The facts are not in dispute. During the winter months, the Leeks live next to a vacant lot owned by the plaintiff, Richard Bernstein, whose lot contained a number of Australian pine trees. The Leeks experienced problems due to large amounts of needles from the trees falling on their property. In 1982, they discussed the situation with Bernstein on two occasions; and he assured them that he would take care of the problem. However, nothing was done and the Leeks were subsequently unable to contact him. In May 1983, without further communication with Bernstein, the Leeks hired Schmidt Tree Service to top off the trees near their property line. Bernstein subsequently sued the Leeks for damages in connection with their unauthorized cutting of his trees. The amended complaint alleges in pertinent part:5. On or about the 29th day of April, 1983, the 2nd day of May, 1983, and the 3rd day of May, 1983, the Defendants did trespass and/or wrongfully enter the real property of the Plaintiff and did cause to have cut, mutilated and severed from the realty of the Plaintiff a large number of trees, without authority or knowledge of the Plaintiff. 6. As a direct and proximate result of the Defendants’ wrongful conduct, Plaintiff’s use of his property has been disturbed and the value of the land has been diminished and/or destroyed.7. The Defendants did commit the described acts, entry upon and damage to the described property unlawfully and willfully, without regard to the property rights of the Plaintiff, and with full knowledge, actual and constructive, that they had no right to do so, and committed the described acts of trespass, waste and damage with a conscious disregard of the Plaintiff’s rights thereby justifying the imposition of punitive damages. The parties appropriately agree that the allegations of the complaint alone determine whether there is coverage under the two insurance policies. *703 National Union Fire Ins. Co. v. Lenox Liquors, Inc., 358 So.2d 533 (Fla.1977); Greater Palm Beach Symphony Ass’n v. Hughes, 441 So.2d 1171 (Fla. 4th DCA 1983); Commercial Union Ins. Co. v. R.H. Barto Co., 440 So.2d 383 (Fla. 4th DCA 1983), rev. denied, 451 So.2d 850 (Fla.1984). Further, there is a presumption of correctness in the trial court’s interpretation of a contract; and its decision should be affirmed unless this court is convinced that the interpretation is clearly erroneous. See Clark v. Clark, 79 So.2d 426 (Fla.1955).After being sued by Mr. Bernstein, the Leeks filed a third party complaint against their homeowners insurance carrier, Standard, and their personal excess liability carrier, Reliance, seeking declaratory relief and indemnity. The Leeks and both insurers later moved for summary judgment. Appellants’ position is that they are covered under the liability provisions of both policies because (a) the complaint against them alleges wrongful entry; (b) the complaint does not allege actual malice; and (c) both policies specifically state that they include coverage for wrongful entry. Both insurers primarily contend the Leeks’ acts are not covered by their policies because the original plaintiff’s claim is for damage to his property, not for personal injury; and because the damage was caused intentionally.While they reach the same conclusion, each insurer has individual reasons for arriving there. Standard points out its express exclusion for damage to the property of others by an intentional act of an insured in Section II, subsection 3, the policy’s applicable provisions being the following:DEFINITIONS1. “bodily injury” means bodily harm, sickness or disease, including required care, loss of services and death resulting therefrom. ···· 6. “property damage” means physical injury to or destruction of tangible property, including loss of use of this property. SECTION II-ADDITIONAL COVERAGES 3. Damage to Property of Others. We will pay up to $250 per occurrence for property damage to property of others caused by any insured. We will not pay for property damage: b. caused intentionally by any insured who is 13 years of age or older; SECTION II-EXCLUSIONS 1. Coverage E-Personal Liability and Coverage F-Medical Payments to Others do not apply to bodily injury or property damage: a. which is expected or intended by the insured; PERSONAL INJURY COVERAGE Under Coverage E, Personal Liability, the definition of bodily injury is amended to include personal injury. Personal injury means injury arising out of one or more of the following offenses: A. false arrest, detention or imprisonment, or malicious prosecution; B. libel, slander or defamation of character; or C. invasion of privacy, wrongful eviction or wrongful entry. Section II Exclusions do not apply to this coverage. This coverage does not apply to: B. Injury caused by a violation of a penal law or ordinance committed by or with the knowledge or consent of any insured. 3. ADDITIONAL COVERAGES The limit of our liability under Additional Coverage 3, “Damage to Property of Others,” is increased to $500. Reliance relies upon the following provisions of its policy: 1. Your policy covers ONLY when injury or damage occurs by accident. [Definitions] 1. Injury means bodily or mental harm to others caused by an accident. It also means libel, slander, false arrest, false detention, wrongful eviction or *704 entry, malicious prosecution, humiliation, invasion of privacy or defamation of character. The idea is that injury can occur, not only to a person’s body, but also to his feelings, reputation or character. 2. Damage means direct physical damage to tangible property; also loss of use of a damaged item. It contends that the Leeks’ conduct was not an accident; and that nothing in the policy, expressly or by implication, would permit a reasonable inference that property damage-as opposed to personal injury-is insured for any act other than an accident. In our view, given the language of both policies, the original plaintiff’s claim here for property damage distinguishes the present case from Greater Palm Beach Symphony Association, Inc. v. Hughes, 441 So.2d 1171 (Fla. 4th DCA 1983), which involved an action for “personal injury”, i.e., injury to the person, arising out of libel and slander. This court was there concerned with a specifically insured injury, occasioned by libel and slander, not damage to property, and reversed, holding that the complaint should not have been dismissed. We held that the complaint against the insureds did not allege the libel and slander was done with actual malice, i.e., specific intent to harm. Had this been an action for injury arising out of an insured tortious act; namely, wrongful entry, we would have also been compelled to reverse here, as there is no allegation here of specific intent to harm. But it is not a claim for personal injury, raising echoes of the old saw that if my aunt were a man, she would be my uncle. Nowhere in the Standard policy is there any language, with respect to damage to the property of others, which would neutralize the specific exclusion for intentional acts of the insured which occasion damage to others’ property. Similarly, the Reliance policy insures against injury; and as its counsel argues in his brief:“Simply put, one cannot ‘injure’ property any more than one can ‘damage’ a person.”Stated another way by Standard’s counsel at oral argument, personal injury is injury to a person. DOWNEY and GUNTHER, JJ., concur.
PERSON’S TREES WERE CUT-DOWN
Wyman v. Robbins, 513 So.2d 230(Fla. 1st DCA 1987)
Wyman v. Robbins, 513 So.2d 230(Fla. 1st DCA 1987)
MILLS, Judge. Appellees, Richard and Ann Robbins, sued appellant, Larry Wyman, for trespass. They alleged that Wyman, who operated a tree removal business, cut trees on their property “without knowledge or approval or authorization from the plaintiffs.” In his answer to the complaint, the only affirmative defense Wyman raised was contributory negligence. The Robbins moved for summary judgment as to liability, at which time Wyman filed an affidavit in opposition executed by Alan Clark, a Wyman employee. In the affidavit, Clark stated that Richard Robbins ordered him to cut the trees. The trial court found Wyman could not rely on the Clark affidavit to create a genuine issue of material fact because the affidavit (1) was inconsistent with Wyman’s pretrial deposition testimony, and (2) raised an affirmative defense not raised in the pleadings. Thus, without considering any issues raised by the affidavit, the trial court found no genuine issue of material fact and granted summary judgment as to liability. We affirm.Initially, we reject Wyman’s argument that the Clark affidavit did not amount to an affirmative defense. Affirmative defenses are required to be set forth in the responsive pleading. Fla.R.Civ.P. 1.110(d). One of the affirmative defenses specifically mentioned in the rule is license. In this regard, Hattaway v. Florida Power & Light Co., 133 So.2d 101 (Fla. 2d DCA 1961) is instructive. There, the plaintiffs entered into a right-of-way agreement with Florida Power, giving Florida Power an easement on the plaintiffs’ property. A Florida Power employee then cleared not only the right-of-way but also part of the plaintiffs’ adjoining land. The plaintiffs sued for trespass. The defendants answered by admitting they cut trees on adjoining land, but contending they had a right to do so under the right-of-way agreement. The court held this was an affirmative defense. Similarly, the Clark affidavit admits that Wyman or his employees cut trees on the Robbins’ property, but asserts that they were requested or had “license” to do so. Because the Clark affidavit amounted to an affirmative defense, the trial court correctly applied the rule that failure to raise an affirmative defense prior to a plaintiff’s motion for summary judgment constitutes a waiver of that defense. Gause v. First Bank of Marianna, 457 So.2d 582 (Fla. 1st DCA 1984); Goldberger v. Regency Highland Condominium Association, Inc., 452 So.2d 583 (Fla. 4th DCA 1984). Having concluded that any issues raised by the Clark affidavit were properly excluded from the summary judgment determination on affirmative defense grounds, we need not determine whether the other reason given by the trial court for refusing to consider the affidavit was valid. We also find no merit in Wyman’s contention that summary judgment was improper irrespective of the Clark affidavit. AFFIRMED.
The termination of a lease by the landlord will often times lead to legal consequences for both the landlord and the tenant. I strongly recommend that landlords seek the advice of counsel prior to terminating a lease, especially a long-term, fruitful one.
If you’ve received written notice that your landlord terminates the lease, contact my office at 321-757-6848 for a consultation. Whether the landlord has a right to terminate a lease or not, there are bound to be legal consequences. I can stand at your side as an helpful advocate, protecting your interests during this challenging time. Call my office at 321-757-6848 to schedule a convenient appointment.
If a tenant finds that his or her residence is unlivable, the tenant should contact an attorney regarding the protections that the law affords residential tenants, and the corrective measures landlords must take.
NOTE: A tenant who abandons his or her tenancy should take note that even though no lawsuit is filed, an unhappy landlord may yet try to negatively affect the tenant’s credit. My office can help you to check credit reports, and take appropriate action on your behalf.
Although I recommend that notice always be given in writing, tenants can terminate an oral lease by giving the same notice a landlord is required to give to terminate an oral lease. If needed, contact my office at 321-757-6848 for specific details of how Florida’s landlord-tenant statutes apply to your tenancy.
On this record there are issues of fact as to whether plaintiff suffered damages as a result of the deficiency for the loan being reported by GMAC on his credit history, and these damages would be recoverable. As explained in Vinson v. Ford Motor Credit Co., 259 So. 2d 768, 771 (Fla. 1st DCA 1972), which involved the slander of credit reputation, “A man’s credit in this day and age is one of his most valuable assets and without it, a substantial portion of the American people would be without their homes, washing machines, refrigerators, automobiles, television sets, and other mechanical paraphernalia that are now regarded as necessities of life.” [Am. Fire & Cas. Co. v. Davis, 146 So. 2d 615, 619 (Fla. 1st DCA 1962)]. Pan Am. Bank of Miami v. Osgood, 383 So. 2d 1095, 1097 (Fla. 3d DCA 1980); City of Stuart v. Lynn, 705 So. 2d 1073 (Fla. 4th DCA 1998) (affirming damages for negligent impairment of appellee’s credit rating); Matthews v. Deland State Bank, 334 So. 2d 164, 165 (Fla. 1st DCA 1976) (affirming damages for improper entry in credit history where loan was denied).
222.11, Exemption of Wages from Garnishment
(1) As used in this section, the term:
(a) “Earnings” includes compensation paid or payable, in money of a sum certain, for personal services or labor whether denominated as wages, salary, commission, or bonus.
(b) “Disposable earnings” means that part of the earnings of any head of family remaining after the deduction from those earnings of any amounts required by law to be withheld
(c) “Head of family” includes any natural person who is providing more than one-half of the support for a child or other dependent.
(2)(a) All of the disposable earnings of a head of family whose disposable earnings are less than or equal to $500 a week are exempt from attachment or garnishment.
(b) Disposable earnings of a head of a family, which are greater than $500 a week, may not be attached or garnished unless such person has agreed otherwise in writing. In no event shall the amount attached or garnished exceed the amount allowed under the Consumer Credit Protection Act, 15 U.S.C. s. 1673.
(c) Disposable earnings of a person other than a head of family may not be attached or garnished in excess of the amount allowed under the Consumer Credit Protection Act, 15 U.S.C. s. 1673.
(3) Earnings that are exempt under subsection (2) and are credited or deposited in any financial institution are exempt from attachment or garnishment for 6 months after the earnings are received by the financial institution if the funds can be traced and properly identified as earnings. Commingling of earnings with other funds does not by itself defeat the ability of a head of family to trace earnings.
222.14. Exemption of cash surrender value of life insurance policies and annuity contracts from legal process
The cash surrender values of life insurance policies issued upon the lives of citizens or residents of the state and the proceeds of annuity contracts issued to citizens or residents of the state, upon whatever form, shall not in any case be liable to attachment, garnishment or legal process in favor of any creditor of the person whose life is so insured or of any creditor of the person who is the beneficiary of such annuity contract, unless the insurance policy or annuity contract was effected for the benefit of such creditor.
222.25 Other individual property of natural persons exempt from legal process.—The following property is exempt from attachment, garnishment, or other legal process:
(1)A debtor’s interest, not to exceed $1,000 in value, in a single motor vehicle as defined in s. 320.01.
(2)A debtor’s interest in any professionally prescribed health aids for the debtor or a dependent of the debtor.
(3)A debtor’s interest in a refund or a credit received or to be received, or the traceable deposits in a financial institution of a debtor’s interest in a refund or credit, pursuant to s. 32 of the Internal Revenue Code of 1986, as amended. This exemption does not apply to a debt owed for child support or spousal support. (4)A debtor’s interest in personal property, not to exceed $4,000, if the debtor does not claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution. This exemption does not apply to a debt owed for child support or spousal support.
222.18 Exempting disability income benefits from legal processes.
Disability income benefits under any policy or contract of life, health, accident, or other insurance of whatever form, shall not in any case be liable to attachment, garnishment, or legal process in the state, in favor of any creditor or creditors of the recipient of such disability income benefits, unless such policy or contract of insurance was effected for the benefit of such creditor or creditors.
Geoffrey P. Golub spells out some very basic asset protection rules here: “If you are married you should own everything in both of your names. And you should owe everything in only one of your names. So your homesteaded house, car, bank accounts, etc… should all be owned in both of your names.”
Further, he says, “The assets should all be owned as tenancy in the entireties. If all your debt is only in one of your names then the creditors cannot take your car, your house, and your bank accounts, etc…”
For further guidance, feel free to contact his office by telephone at 321-757-6848 or after hours, you may be able to catch Geoff working at 321-750-1107.
The following are some resources that I’ve found valuable in this area of my practice:
Berlin v. Pecora (Fla. 4th DCA, 2007)
Bret Berlin, as personal representative of the Estate of Jerome Berlin (Berlin), appeals the final declaratory judgment in a partnership dispute which found that Michael Pecora (Michael) and his wife, Arlene Pecora (Arlene) held the limited partnership interest in Signature Grand, Ltd. and the stock of Deux Michel, Inc. and Grand Partners, Inc. as tenants by the entireties. We affirm. In 1982, Michael formed a limited partnership with Berlin called Signature Gardens, Ltd. The general partner of this limited partnership is a corporation, Deux Michel, Inc. The stock in Deux Michel, Inc. was issued equally to Michael, Berlin, and Michael Selig (Selig). Selig was bought out by Deux Michel, Inc. in 1989. In 1993, Michael and Berlin formed the limited partnership Signature Grand, Ltd. The general partner of this limited partnership is the corporation Grand Partners, Inc. The Grand Partners, Inc. stock was issued equally to Michael and Berlin. Arlene worked as director of sales for the limited partnerships, Signature Gardens, Ltd. and Signature Grand, Ltd. for one year before each facility opened in approximately 1984 and 1995, respectively. She did not work for either entity again until November 2001. On April 28, 2003, Berlin fired Arlene and the next day Michael shot and killed Berlin and then shot and killed himself. Michael left a suicide letter for Arlene and a letter directed to the comptrollers of Signature Gardens, Ltd. and Signature Grand, Ltd., appointing Arlene to act in his absence as president and CEO of Grand Partners, Inc. and Deux Michel, Inc. Arlene filed a complaint alleging that she and Michael had jointly owned the corporate stock and limited partnership interests as tenants by the entireties and therefore those interests immediately passed to her as the surviving spouse upon Michael’s death. At a non-jury trial Arlene maintained that she and her husband had an understanding that they would hold bank accounts, stock and real estate jointly as tenants by the entireties. She testified that their ownership interests in Signature Gardens, Ltd., Deux Michel, Inc., and Grand Partners, Inc. were purchased through their joint bank accounts. Other witnesses testified to conversations they had with Berlin and Michael in which Arlene was identified as a limited partner or joint tenant in the businesses.At the end of the trial, the trial court judge orally ruled that Arlene and Michael had owned the limited partnership interest in Signature Grand, Ltd. and the stock in the corporations, Deux Michel, Inc. and Grand Partners, Inc. as tenants by the entireties. The court later entered a Final Declaratory Judgment in favor of Arlene and granted Arlene’s motion to tax costs. On appeal, Berlin argues that the trial court erred because it overlooked the corporate documents. Berlin cites to several documents as evidence that both corporations established stock ownership in Michael alone. These documents include the minutes of Deux Michel, Inc. showing that Michael owned 200 shares; a February 1984 resolution and stock certificate showing an additional hundred shares issued to Michael, individually; July 1993 minutes of Grand Partners, Inc. reflecting Michael owning 200 shares in the company; and K-1 tax schedules for Deux Michel, Inc. and Grand Partners, Inc. showing Michael as the shareholder. “[C]orporate records provide a prima facie evidentiary basis for determining ownership of corporate stock.” Sackett v. Shahid, 722 So. 2d 273, 275 (Fla. 1st DCA 1998). However, [I]t is within the trial judge’s province, when acting as trier of both fact and law, to determine the weight of the evidence, evaluate conflicting evidence, and determine the credibility of the witnesses, and such determinations may not be disturbed on appeal unless shown to be unsupported by competent and substantial evidence, or to constitute an abuse of discretion. Jockey Club, Inc. v. Stern, 408 So. 2d 854, 855 (Fla. 3d DCA 1982). The above mentioned documents provide evidence that Michael was the only recognized name mentioned with stock ownership in the companies. Nevertheless, these documents are contradicted with testimony at trial that the stock was held jointly; evidence and testimony that Michael and Arlene made purchases through a joint account; and other documents admitted at trial indicating joint ownership, thereby providing competent and substantial evidence for the trial court’s ruling. One additional document cited by Berlin is a 1997 Guarantor Affidavit and Spousal Disclaimer. This document was made to provide security for a loan from BankAtlantic to Signature Grand, Ltd. In the document, Michael listed his stock interests in Grand Partners, Inc. and Duex Michel, Inc. and his partnership interests in Signature Grand Ltd. and Signature Gardens, Ltd. Arlene acknowledged in the affidavit that the assets were owned solely by Michael and disclaimed any interest in the assets. The premise behind the affidavit comes into doubt in light of the testimony by Susan Imbrigiotta, the Vice President of Commercial Real Estate Lending for BankAtlantic. She testified that she was the original loan officer for the 1997 loan transaction with Signature Grand, Ltd. She explained that this loan transaction required a Guarantor Affidavit and Spousal Disclaimer, which is used when the guarantor signing on the loan is married and his or her spouse is not personally signing on the loan; both spouses then must sign the Affidavit. She admitted that the relevant part of the financial affidavit attached to the Affidavit in BankAtlantic’s file was that of Berlin, not Michael. Therefore, Arlene disclaimed only Berlin’s interests in Grand Partners, Inc., Signature Grand, Ltd., Deux Michel, Inc., and Signature Gardens, Ltd. Based on the above, there was competent substantial evidence to find the affidavit was not intended to divest Arlene of her ownership interests in the companies. Berlin also argues that Arlene failed to prove any of the elements necessary to establish a tenancy by the entirety. Arlene argues that her entireties interest arose as a result of her investments in the corporate assets from her joint bank account with Michael. Under a tenancy by the entirety, “[u]pon the death of one spouse, the surviving spouse continues to be seized of the whole. Thus . . . after death of one spouse the surviving spouse continues to hold the entire estate . . . .” Cacciatore v. Fisherman’s Wharf Realty Ltd. P’ship, 821 So. 2d 1251, 1254 (Fla. 4th DCA 2002). Property held as a tenancy by the entireties possesses six characteristics: (1) unity of possession (joint ownership and control); (2) unity of interest (the interests in the account must be identical); (3) unity of title (the interests must have originated in the same instrument); (4) unity of time (the interests must have commenced simultaneously); (5) survivorship; (6) unity of marriage (the parties must be married at the time the property became titled in their joint names). Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45, 52 (Fla. 2001) (footnote omitted). Arlene’s main argument and the one that the trial court agreed with, is that the tenancy by entirety was created through the use of a joint account to buy the interests. Bank accounts are afforded the same presumption of tenancy by the entireties as is real property. Beal Bank, 780 So. 2d at 58. Property purchased with joint funds may create a tenancy by the entirety in that property so long as the unities are met. For example, in Winterton v. Kaufmann, 504 So. 2d 439 (Fla. 3d DCA 1987), the court found that after the husband died, the wife owned bonds that were purchased with joint funds and kept in a joint safe deposit box. See also Estate of Fields v. Fields, 581 So. 2d 1387, 1388 (Fla. 3d DCA 1991) (“The bearer bonds, purchased with joint funds and maintained in the couple’s joint safe deposit box, passed to the wife upon the husband’s death. The bearer bonds were held by the spouses as tenants by the entirety; ownership vested in the wife as the survivor.”). Once tenancy by the entirety property is established, its subsequent transfer to another asset does not terminate the unities of title or possession. See Passalino v. Protective Group Sec., Inc., 886 So. 2d 295, 297 (Fla. 4th DCA 2004) (“Transferring the proceeds of the sale of entireties property to a trustee for the benefit of the husband and wife does not terminate the unities of title or possession . . . .”); Lerner v. Lerner, 113 So. 2d 212 (Fla. 2d DCA 1959). Here, the six characteristics needed to prove the tenancy by the entirety are largely based upon the assumption that joint funds were used in the inception of the companies, even though the proof of the use of joint funds is illustrated only by checks dated after the inception of the companies and witness testimony “[U]nless a tenancy by the entireties is clearly expressed in the instrument, the parties must prove they intended to create a tenancy by the entireties.” Hurlbert v. Shackleton, 560 So. 2d 1276, 1279 (Fla. 1st DCA 1990); Morse v. Kohl, Metzger, Spotts, P.A., 725 So. 2d 436, 438 (Fla. 4th DCA 1999). The trial court heard testimony from witnesses as well as the admission of several documents in which it found that the intention was to create a tenancy by the entirety. This is a factual question which the court ultimately determined by competent substantial evidence in favor of Arlene. See Sitomer v. Orlan, 660 So. 2d 1111, 1115 (Fla. 4th DCA 1995) (“Whether the parties created a tenancy by the entireties in a bank account — whether they were each taking the whole of the account — is a question of fact.”) Because substantial competent evidence supported the trial court’s finding that Arlene and Michael held their ownership interests as tenants by the entireties, this court cannot reverse that finding. The trial court also properly granted Arlene’s motion to tax costs. Affirmed. (Stevenson, J., and Belanger, Robert E., Associate Judge, concur.)
Buckeye Retirement Co., LLC, Ltd. v. Nassau Land & Trading Co., Inc.
943 So.2d 223(Fla. 1st DCA 2006)
(PER CURIAM.) Appellant seeks review of a final order dissolving a writ of garnishment based on the conclusion that appellant had failed to rebut the presumption that the bank account garnished was intended by appellee William H. Kavanaugh and his wife to be held as a tenancy by the entireties and that, therefore, the account was not subject to garnishment for a debt owed by Mr. Kavanaugh individually. Appellant concedes that Kavanaugh and his wife held the account as tenants by the entireties, urging that we address another issue not reached by the trial court. What appellant apparently fails to comprehend is that, having concluded that appellant had failed to prove that the account was not held by the entireties, it was unnecessary for the trial court to reach the other issue. Because appellant failed to rebut the presumption that the account was intended to be held by the entireties, the Kavanaughs were entitled to have the writ dissolved. See Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45, 53 (Fla. 2001) (“when property is held as a tenancy by the entireties, only the creditors of both the husband and wife, jointly, may attach the tenancy by the entireties property; the property is not divisible on behalf of one spouse alone, and therefore it cannot be reached to satisfy the obligation of only one spouse”) (citations omitted). Accordingly, we affirm. Moreover, because this appeal is devoid of any arguable merit, we grant Kavanaugh’s motion for attorneys’ fees, made pursuant to section 57.105, Florida Statutes (2005). See Dunn v. Kean, 928 So. 2d 383, 383 (Fla. 1st DCA 2006). We remand to the trial court, with directions that it determine the appropriate amount of fees to be awarded for Kavanaugh’s lawyers’ services in this appeal should the parties be unable to agree. AFFIRMED and REMANDED, with directions. (WEBSTER, VAN NORTWICK, and PADOVANO, JJ., CONCUR.)
Cacciatore v. Fisherman’s Wharf Realty Ltd. Partnership ex rel. Emalfarb Investment Corp.
821 So.2d 1251(Fla. 4th DCA 2002)
(OWEN, WILLIAM C., JR., Senior Judge.) The trial court determined that a stock certificate titled in the joint names of appellant and his wife was owned by them as joint tenants, not as tenants by the entirety, and thus, appellee, the holder of a judgment against appellant, was entitled to have the sheriff levy on appellant’s interest in the certificate.1 We conclude that as between debtor and creditor the holding and rationale of Beal Bank, SSB v. Almand & Associates, 780 So. 45 (Fla. 2001), should be extended to create a presumption of tenancy by the entireties in the stock certificate. Accordingly, we reverse the order appealed and remand with directions. After its judgment against appellant had been affirmed,2 appellee sought an order authorizing the sheriff to levy writ of execution on a stock certificate for 510 shares of Nantucket Enterprises, Inc., which certificate designated “Phillip F. Cacciatore, Jr. and Elaine Cacciatore, his wife” as owner. Initially, appellee had sought to prove that appellant was the sole owner of the 510 shares of stock, and that his wife had no interest therein. Although there was evidence both pro and con on that issue, the trial court resolved that matter against appellee’s position, finding that the stock was held by appellant and his wife jointly. No issue is raised on this appeal concerning that finding. As its fall back position, appellee argued to the trial court that, even if the court found appellant and his wife owned the certificate jointly, the court nonetheless would have to find as a matter of law that their ownership was as joint tenants and not as tenants by the entireties since there was no evidence before the court as to the intent of appellant and his wife to create an estate by the entireties in the certificate. In support of that argument appellee cited Florida case law3 holding that personal property taken in the joint names of a husband and wife, unlike real property when title was so taken, created no presumption that a tenancy by the entireties was intended but required the owners to prove that intent. The trial court, apparently accepting that argument, entered the order appealed determining that appellant and his wife owned the stock as joint tenants, not as tenants by the entirety, and directed the sheriff to levy and execute on appellant’s one-half interest in the certificate. In Beal Bank, the court answered the following certified question (as rephrased by the court) in the affirmative: I. In an action by the creditor of one spouse seeking to garnish a joint bank account titled in the name of both spouses, if the unities required to establish ownership as a tenancy by the entireties exist, should a presumption arise that shifts the burden to the creditor to prove that the subject account was not held as a tenancy by the entireties? Beal Bank, 780 So. 2d at 48. The court there was dealing with bank accounts titled in the names of both spouses and, thus, its ultimate holding dealt specifically with joint bank accounts. Nonetheless, in reaching that holding the court expansively reviewed and discussed Florida case law, including the cases relied upon by appellee, to point out the disparity that existed in Florida as to the presumption of an estate by the entireties when a husband and wife took title to real property in their joint names and the absence of any such presumption when a husband and wife acquired and held personal property in their joint names. Having recognized the existence of such a disparity, the court cogently pointed out sound reasons why it should be eliminated.4 Of greater importance, and significant to our decision today, we think the court’s opinion, fairly read, indicated that the time had come to eliminate that disparity and to accord to personal property in general (not just bank accounts) the same presumption of tenancy by the entireties when jointly owned by husband and wife as that accorded real property jointly owned by husband and wife. In this respect, the court said: Although we understand the considerations that originally led to this Court’s decision not to adopt a presumption of a tenancy by the entireties in personal property similar to that in real property, we conclude that stronger policy considerations favor allowing the presumption in favor of a tenancy by the entireties when a married couple jointly owns personal property. In fact, other jurisdictions apply a presumption in favor of a tenancy by the entireties to both real property and personal property. Id. at 57 (footnote omitted). Consistent with that view, we hold that where a judgment creditor of one spouse seeks to levy under writ of execution against a stock certificate titled in the name of both spouses, if the unities required to establish ownership as a tenancy by the entireties exist, a presumption of such tenancy arises that shifts the burden to the creditor to prove that the stock was not so held. We believe the soundness of such holding is enhanced by our recognition, as a matter of common knowledge, that the alienation of a stock certificate held in spouses’ joint names, just as title to real property held in spouses’ joint names, requires greater formality than does alienation of the content of the joint banks accounts present in Beal Bank. Appellee argues that irrespective of whether the holding of Beal Bank is limited solely to joint bank accounts, or is viewed as applicable to personalty in general, it does not support a presumption of tenancy by the entireties in the stock involved here. Pointing to the court’s explicit holding, at 780 So. 2d at 58, appellee argues that the court intended the presumption to arise only if husband and wife hold title in accordance with the unities of possession, interest, title and time and with right of survivorship. Thus, the argument continues, the presumption of tenancy by the entireties in the instant stock certificate could not arise because the words “with right of survivorship” were not present. We think it clear that the holding in Beal Bank does not require, in order for the presumption to arise, the presence of the words “with right of survivorship,” any more than it requires the presence of words describing each of the other unities characteristic of a tenancy by the entireties. Rather, the presumption arises from taking title in the spouses’ joint names. The creditor then has the burden to prove by the preponderance of the evidence that one of the necessary unities (including, if such be the case, the right of survivorship) did not exist at the time the certificate was acquired. When husband and wife take title to property as a tenancy by the entireties, each is seized of the estate thus granted per tout et non per my. See First Nat’l Bank of Leesburg v. Hector Supply Co., 254 So. 2d 777, 780 (Fla. 1971). Upon the death of one spouse, the surviving spouse continues to be seized of the whole. Thus, survivorship, in the generally accepted sense that after death of one spouse the surviving spouse continues to hold the entire estate, is the very essence of the unique nature of a tenancy by the entireties. It would be redundant to add the words “with right of survivorship” when describing the interest of a husband and wife who intend to take title to property as tenants of an estate by the entireties. Thus, we further hold that for the presumption to arise in connection with ownership of a stock certificate issued in the joint names of a husband and wife the words “with right of survivorship” are not required to be appended. The order appealed is reversed. Upon remand, the trial court shall reconsider the judgment creditor’s motion in light of this court’s opinion. For that purpose, the court may conduct such further hearings, including the taking of additional evidence, as the court in its discretion may deem appropriate. REVERSED. (STEVENSON and GROSS, JJ., concur.) 1The order likewise directed levy on appellant’s interest in two jointly titled automobiles, but this appeal involves only the portion of the order pertaining to the stock. 2See Cacciatore v. Fisherman’s Wharf Realty Ltd. P’ship, 778 So. 2d 1076 (Fla. 4th DCA 2001). 3Appellee cited to the trial court some or all of the cases it likewise cites here for that position: First National Bank of Leesburg v. Hector Supply Co., 254 So. 2d 777 (Fla. 1971); Cadle Company v. G&G Associates, 741 So. 2d 1257 (Fla. 4th DCA 1999); Amsouth Bank of Florida v. Hepner, 647 So. 2d 907 (1st DCA 1994); Hurlbert v. Shackleton, 560 So. 2d 1276 (Fla. 1st DCA 1990); In re: Bundy, 235 B.R. 110 (M.D. Fla. 1999). 4“[T]he effect of our decisions … was to set up both an obstacle course for litigation and a trap for the unwary ….” 780 So. 2d at 57.
If you are being sued by a company that did not originally own your credit card then you may have a good defense that will prevent this company from collecting any money at all from you. Usually, it is hard for this company to get all the necessary paperwork together to prove the debt, and even if they can get the paperwork together, they cannot always get it introduced into evidence again making it impossible for them to prove the debt.
17 Fla. L. Weekly Supp. 190a
Online Reference: FLWSUPP 1703JONE
Creditors’ rights — Consumer law — Florida Consumer Collection Practices Act — Assignee of consumer debt is precluded from bringing action to collect debt where assignee failed to satisfy condition precedent of notice to debtor within 30 days of assignment — No merit to argument that notice requirement applies only to collection agencies
CENTRAL OHIO CREDIT CORP., Plaintiff, vs. KEVIN LAMAR JONES, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 2007-11791-CC, Division A. June 17, 2008. Emmet F. Ferguson, Judge. Counsel: Sidney E. Lewis, Jacksonville. James A. Kowalski, Jr., Jacksonville.
SUMMARY FINAL JUDGMENT FOR DEFENDANT
THIS CAUSE came on before the Court on Thursday, June 5, 2008, on the Plaintiff’s Motion for Summary Judgment and the Defendant’s Cross-Motion for Summary Judgment. The issue presented to the Court concerns the application of Section 559.715, Florida Statutes, to the facts of the instant case, based upon the record evidence indicating Plaintiff did not provide notice of an assignment within thirty (30) days as provided by the Statute. Section 559.715, Florida Statutes, states: “This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment within 30 days after the assignment.” Plaintiff asserts Section 559.715, Florida Statutes, only applies to collection agencies by virtue of its proximity to now-repealed statutes dealing with collection agencies. Defendant argues Section 559.715, Florida Statutes, is a condition precedent to the collection of debts following an assignment, applies on its face to all entities receiving assignments of consumer debts, and notes the term “consumer debt” is defined broadly. Section 559.55(1), Florida Statutes. The Court has reviewed the circuit court case of UMIJC VP, LLC, v. Levine, 10 Fla. L. Weekly Supp. 336 (Circuit Court, 15th Judicial Circuit, 2003), and has also reviewed Plaintiff’s Affidavit As to Indebtedness, wherein Plaintiff’s Affiant testified Plaintiff had received this debt through a series of assignments. The Court finds Section 559.715, Florida Statutes, is a condition precedent and applies to those entities receiving assignments of consumer debts and, having failed to comply by providing notice to Defendant within 30 days after assignment, Plaintiff is precluded as a matter of law from bringing this action. There are no genuine issues of material fact and Defendant KEVIN LAMAR JONES is entitled to Judgment in his favor and against Plaintiff CENTRAL OHIO CREDIT CORP. It is, therefore, ORDERED AND ADJUDGED, Defendant KEVIN LAMAR JONES’ Motion for Summary Judgment be and the same is hereby granted, and accordingly Plaintiff CENTRAL OHIO CREDIT CORP. shall take nothing by this action, and the Defendant shall go hence without day.
15 Fla. L. Weekly Supp. 913b
Contracts — Account stated — Money lent — Standing — Assignment — Plaintiff who alleged that defendant owed debt to it by virtue of an assignment of rights from plaintiff’s alleged predecessor-in-interest failed to meet burden of demonstrating that it was, in fact, assignee of alleged debt and had standing to file suit — Documents apparently intended to demonstrate transfer of ownership of defendant’s account between several entities, until account was ultimately assigned to plaintiff, were not admissible as business records where documents were not authenticated through testimony of records custodian or other person with knowledge with respect to the records of each entity — Even if documents proffered by plaintiff had been admitted into evidence, neither that evidence nor the testimony of a witness who identified herself as a “legal liaison and records custodian” of a company which was not a party to case and which appeared nowhere in the alleged chain of title with respect to defendant’s account, would support judgment in favor of plaintiff, would support judgment in favor of plaintiff
PALISADES COLLECTION, LLC, Plaintiff, v. LOUISE FEDORAK, Defendant. County Court, 2nd Judicial Circuit in and for Wakulla County. Case No. 08-01-SC. August 6, 2008. Jill Walker, Judge. Counsel: Justin D. Jacobson and Richard W. Reno, for Plaintiff. Robert G. Churchill, Jr., Tallahassee, for Defendant.
This case was heard by the Court at a final hearing. This Court having heard the evidence presented and arguments of counsel and being otherwise fully advised in the premises, finds that the trial evidence was insufficient to support a judgment in favor of the Plaintiff, and entitles Defendant in this action to final judgment in her favor, for the reasons set forth below. Plaintiff has sued the Defendant in this Court, alleging a debt owed by Defendant to Plaintiff by virtue of an assignment of rights from Plaintiff’s alleged predecessor-in-interest, Citibank. Plaintiff’s Complaint asserted three untitled counts which appear to be claims for Breach of Contract, Account Stated, and Money Lent, alleging a principal debt of $1205.14. The Plaintiff admitted into evidence, (without objection from Defendant), the Citibank Card Agreement entered by the Defendant with the original creditor. The evidence offered by Plaintiff at trial failed to meet Plaintiff’s burden to demonstrate that Plaintiff was the assignee of the alleged debt and had standing to file suit. On this issue, Plaintiff attempted to admit into evidence several assignment documents apparently intended to demonstrate the transfer of ownership of Defendant’s account between several entities, until the account was ultimately assigned to the Plaintiff. In order to admit into evidence the business records of any of these business entities, Plaintiff was required to authenticate the documents by the testimony of a records custodian or other person with knowledge under the Florida Evidence Code. Fla. Stat. § 90.803(6)(a); Forester v. Norman Roger Jewell & Brooks International, Inc., 610 So. 2d 1369, 1373 (Fla. 1st DCA 1992). Plaintiff did not offer any such testimony with respect to any of these assignments, and the assignment documents were not admitted into evidence. Plaintiff elicited the testimony of Natalie Anderson, who identified herself as a “legal liaison and records custodian” of Unifund CCR Partners, a company which is not a party to this case and appears nowhere in the alleged chain of title with respect to this account. Ms. Anderson could not provide an evidentiary foundation for any business records of Citibank or any other company appearing in the alleged chain of title with respect to Defendant’s account. In the absence of authenticating testimony from a records custodian or other person with knowledge with respect to the records of each of these entities, their records could not be admitted into evidence over the Defendant’s objection. See Forester at 1373. Finally, the Court notes that even if all of the documents proffered by the Plaintiff in this case had been admitted into evidence, neither that evidence nor Ms. Anderson’s testimony would support a judgment in favor of the Plaintiff. None of the documents in the possession of trial counsel for either party indicated any connection between the purported assignments and the Defendant. Each of the written assignment agreements referenced exhibits (apparently lists of the assigned accounts), which exhibits were never offered at trial, nor were they produced in compliance with the Court’s pretrial disclosure order. The failure to provide the assignment exhibits prior to trial as required by the Court would have rendered the exhibits inadmissible even if they had been offered at trial. Ms. Anderson could not testify with reference to the Defendant in particular either by personal knowledge or by reference to any of the materials the parties disclosed prior to trial pursuant to this Court’s pretrial order. NOW THEREFORE, for the reasons stated above, the Court finds for the Defendant. Plaintiff shall take nothing by this action and Defendant shall go hence without day. The Court reserves jurisdiction as to the entitlement to and amount of attorney fees and costs.
15 Fla. L. Weekly Supp. 843b
Consumer law — Florida Consumer Debt Collection Practices Act — Notice to debtor of assignment of consumer debt is condition precedent to collection action by assignee
CACH, LLC, Plaintiff, vs. STEPHEN J. QUARTERMAINE, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COSO 07-11074. June 16, 2008. Terri-Ann Miller, Judge. Counsel: Scott D. Owens, Cohen & Owens, P.A., Hollywood. Harold E. Scherr.
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come to be considered on Defendant’s Motion for Summary Judgment, and this Honorable Court having heard arguments from both counsel for the Plaintiff and Defendant, it is hereupon, ORDERED that said Motion is GRANTED. Based upon the evidentiary record, this Court finds that Plaintiff has failed to comply with the written notice provision of Florida Statutes § 559.715, which this Court holds is a condition precedent to a (debt) collection action predicated upon an assignment of debt.
15 Fla. L. Weekly Supp. 365b
Consumer law — Assignment of debt — Where debtor’s affidavit stating that she did not receive written notice of any assignment of debt was unrebutted, condition precedent to assignee’s action to collect debt was not met
MIDLAND FUNDING LLC, Plaintiff, vs. GLADYS HILL, Defendant. County Court, 2nd Judicial Circuit in and for Gadsden County, Small Claims Division. Case No. 07-75-SCA. February 13, 2008. Stewart E. Parsons, Judge. Counsel: Robert J. Orovitz, Miami, for Plaintiff. Robert G. Churchill, Jr., Tallahassee, for Defendant.
ORDER GRANTING MOTION FOR SUMMARY DISPOSITION
THIS CAUSE having come on for hearing upon Defendant’s Motion For Summary Disposition, and Court having heard the argument of counsel, it isORDERED AND ADJUDGED: 1. Plaintiff filed this action to collect a debt alleging that it was the owner and holder of the debt pursuant to an assignment from the original lender, Fingerhut Credit Advantage. The Court notes that the assignment which was produced in response to Defendant’s Request For Production was from Jefferson Capital Systems, LLC to Midland Funding LLC, and made no mention of Fingerhut Credit Advantage. F.S. 559.715 requires that an assignee of a debt give written notice of the assignment to the debtor within 30 days of the assignment. Defendant filed her affidavit in support of the Motion For Summary Disposition indicating that she received no notice of any assignment of the debt. The affidavit was not rebutted by Plaintiff. 2. The Court finds that the written notice required by F.S. 559.715 was not given, and that the giving of such notice was a condition precedent to bringing this Action. UMLIC-VP, LLC v. Reggie Levine, 10 Fla. L. Weekly Supp. 336a (Fla. 15th Cir. Ct. 2003) & Portfolio Recovery Associates, LLC v. Richard Smith, 15 Fla. L. Weekly Supp. 169a (Leon County Court 2007). Therefore the Motion For Summary Disposition is granted, and this action is hereby dismissed with prejudice.
15 Fla. L. Weekly Supp. 169a
Consumer law — Standing — Assignment — Plaintiff suing defendant for debt allegedly owed to plaintiff based on claimed assignment by bank failed to prove assignment where affidavit of bank’s agent created on day of trial is hearsay that is not admissible as business record, and insufficient foundation was laid for admission of bank’s business records offered through plaintiff’s account manager — Failure to satisfy statutory condition precedent of providing notice of assignment of debt to debtor bars enforcement of debt even if plaintiff were able to establish standing — Where account agreement with bank provides that New Hampshire law governs relationship under agreement, and suit was filed more than three years after undisputed accrual of cause of action, suit is barred by NH statute of limitations — Contract provision by which debtor agreed to waive all applicable statutes of limitations is invalid as against public policy under NH law
PORTFOLIO RECOVERY ASSOCIATES, LLC, Plaintiff, v. RICHARD SMITH, Defendant. County Court, 2nd Judicial Circuit in and for Leon County. Case No. 07-SC-4319. December 3, 2007. James O. Shelfer, Judge. Counsel: Robert J. Orovitz and Pace Allen, for Plaintiff. Robert G. Churchill, Jr., Tallahassee, for Defendant.
This case was heard by the Court at a final hearing. This Court having heard the evidence presented and arguments of counsel and being otherwise fully advised in the premises, finds that Plaintiff’s evidence was insufficient to support a judgment in favor of the Plaintiff, and entitles Defendant in this action to final judgment in his favor, for the reasons set forth below. Plaintiff has sued the Defendant in this Court, alleging a debt owed by Defendant to Plaintiff by virtue of an alleged assignment of rights from Plaintiff’s alleged predecessor-in-interest, Providian National Bank. Plaintiff asserted claims for Breach of Contract, Account Stated, and Money Lent, alleging a principal debt of $3065.55. The evidence offered by Plaintiff at trial failed to demonstrate that Plaintiff was the assignee of the alleged debt and had standing to file suit. The only evidence Plaintiff attempted to admit on this issue was an affidavit of an agent of Providian National Bank, asserting that the account of the Defendant was included in a November 29, 2005 purchase and sale agreement between Providian National Bank and Plaintiff, (which agreement was not attached to the affidavit or presented as evidence). The affidavit was dated November 29, 2007 — the day of the trial of this matter. This affidavit was inadmissible hearsay, which did not meet the requirements for admission of a business record under the hearsay exception found in Florida Statute Section 90.803(6). The affidavit was not created at or near the time of the events it records, and the circumstances of the affidavit demonstrate to the Court that the document lacks trustworthiness. Fla. Stat. § 90.803(6)(a). Plaintiff offered testimony of Lucinda Shipman, an account manager for the Plaintiff, who described various documents in her file, including the above-described affidavit as well as some statements and other materials generated by the alleged predecessor-in-interest on the debt, Providian National Bank. Ms. Shipman could not lay a proper evidentiary foundation for the admittance of the business records of Providian National Bank pursuant to the business records exception to the hearsay rule, and those documents were not admitted into evidence. Fla. Stat. § 90.803(6)(a). Ms. Shipman did not have in her possession, nor did the Plaintiff attempt to admit into evidence any notice from the Plaintiff to the Defendant in compliance with Florida Statute Section 559.715. That 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 to the enforceability of the debt. See UMLIC-VP, LLC v. Levine, 10 Fla. L. Weekly Supp. 336a (Fla. 15th Cir. Ct. 2003). The absence of the condition precedent statutory notice bars the enforcement of this debt, even if Plaintiff had properly demonstrated standing by showing that it had purchased Defendant’s account from Providian National Bank. The Plaintiff admitted into evidence, (without objection from Defendant), the credit card application directed to Providian National Bank signed by the Defendant, as well as a Providian National Bank Account Agreement entered by the parties. The account agreement indicated that New Hampshire law governed the relationship of the parties under the agreement. Under New Hampshire law, the claims brought in this case are subject to a three-year statute of limitations. See West Gate Village Association v. Dubois, 761 A. 2d 1066, 1070-71 (N.H. 2000). The admitted evidence in this case was undisputed in demonstrating that Defendant has never made any payments to the Plaintiff, did not make any payments to Plaintiff’s alleged predecessor-in-interest Providian National Bank after May of 2003, and was therefore in breach of the agreement no later than June of 2003. This lawsuit was not filed until September of 2007, more than three years after the undisputed accrual of the cause of action on the purported debt. Though the contract between Providian National Bank and Defendant has a provision by which Defendant agrees to “waive all applicable statutes of limitations” — this provision is invalid under the law of New Hampshire as against public policy. See West Gate Village Ass’n at 1071. NOW THEREFORE, for the reasons stated above, the Court finds for the Defendant. Plaintiff shall take nothing by this action and Defendant shall go hence without day. The Court reserves jurisdiction as to the entitlement to and amount of attorney fees and costs.
14 Fla. L. Weekly Supp. 1149c
Contracts — Credit account — Standing — Assignment — Where document offered by plaintiff/assignee of account to prove assignment was made by assignor not plaintiff, and witness called to admit document as business record did not know whether document was made in ordinary course of business on or about time of events described therein, assignment was not proven — Judgment in favor of defendant
ATLANTIC CREDIT & FINANCE, INC., c/o Nathan P. Gryglewicz, Esq. 5104 S. Westshore Blvd. Tampa, FL 33611, Plaintiff, vs. LEE ANDERSON c/o Michael R. Reiter, Esq. P.O. Box 330 Lynn Haven, FL 32444, Defendant. County Court, 14th Judicial Circuit in and for Bay County. Case No. 07-1694-SC. October 5, 2007. John D. O’Brien, Judge.
This case came before the Court for Final Hearing. The Plaintiff failed to show an assignment of this account to it, there being no Exhibit A attached to the bill of sale admitted into evidence. Nor did Plaintiff show compliance with Fla. Stat. 559.715. Plaintiff called as a witness an employee of Plaintiff and tried to admit as a business record a document made by Plaintiff’s assignor, Household Card Services, Inc. This document was not even made by the Plaintiff, nor could the witness know whether the document was made in the ordinary course of business on or about the time of the event described therein, the first two thresholds in showing a business record. Plaintiff directs this Court to Wamco, XXVIII v. Untegrated Electronic Environments, Inc., 903 So.2d 230 (Fla. 2nd DCA 2005) as support for the proposition that the Plaintiff’s witness could establish as a business record of Plaintiff a document made by an entirely different organization. That case does not support this proposition. In the case cited, the assignee, Wamco, sent its own bills after the assignment showing payments and balances. Thus, the employee of Wamco testified about Wamco records, not the records of another entity. True the Wamco records were bottomed on hearsay from a third party business, which the appellate court seemed to hold acceptable, but the first requirement that the records be made by the business offering the document as its business record was not satisfied. NOW THEREFORE, for the reasons stated, this Court finds for the Defendant. The Plaintiff, Atlantic Credit & Finance, Inc., shall take nothing by the action and the Defendant, Lee Anderson, shall go hence without day.
A person can file an injunction to prevent a nuisance.
386.041 Nuisances injurious to health.
(1) The following conditions existing, permitted, maintained, kept, or caused by any individual, municipal organization, or corporation, governmental or private, shall constitute prima facie evidence of maintaining a nuisance injurious to health: (a) Untreated or improperly treated human waste, garbage, offal, dead animals, or dangerous waste materials from manufacturing processes harmful to human or animal life and air pollutants, gases, and noisome odors which are harmful to human or animal life. (b) Improperly built or maintained septic tanks, water closets, or privies. (c) The keeping of diseased animals dangerous to human health. (d) Unclean or filthy places where animals are slaughtered. (e) The creation, maintenance, or causing of any condition capable of breeding flies, mosquitoes, or other arthropods capable of transmitting diseases, directly or indirectly to humans. (f) Any other condition determined to be a sanitary nuisance as defined in s. 386.01. (2) The Department of Health, its agents and deputies, or local health authorities are authorized to investigate any condition or alleged nuisance in any city, town, or place within the state, and if such condition is determined to constitute a sanitary nuisance, they may take such action to abate the said nuisance condition in accordance with the provisions of this chapter.
A breach of contract occurs when one party to the contract does not uphold his or end of the contract.