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Filing # 123763428 E-Filed 03/25/2021 01:08:06 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
AMERICAN EXPRESS NATIONAL BANK CASE NO.: CACE-20-017261
f/k/a American Express Centurion Bank,
Plaintiff,
vs.
MARK AMARANT,
Defendant(s)
PLAINTIFF'S MOTION TO STRIKE DEFENDANT(S)
AMENDED ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW, the Plaintiff, AMERICAN EXPRESS NATIONAL BANK f/k/a American
Express Centurion Bank, by and through the undersigned attorney, files this Motion to Strike the
Defendant(s) Affirmative Defenses, included within Defendant(s) Amended Answer, a copy of
which is attached hereto, and as grounds therefore, Plaintiff would state:
1. Florida Rules of Civil Procedure, Rule 1.110(d) provides as follows
"Affirmative Defenses. In pleading to a preceding pleading a party
shall set forth affirmatively accord and satisfaction, arbitration and
award, assumption of risk, contributory negligence, discharge in
bankruptcy, duress, estoppel, failure of consideration, fraud,
illegality, injury by fellow servant, laches, license, payment, release,
res judicata, statute of frauds, statute of limitations, waiver, and any
other matter constituting an avoidance or affirmative defense. . ."
See Fla. R. Civ. P. 1.110(d).
2. The Florida Supreme Court in the matter of State Farm Mutual Automobile Insurance
Company v. Curran, 135 So. 3d 1071, (Fla 2014), held that:
“An affirmative defense is a defense which admits the cause of
action, but avoids liability, in whole or in part, by alleging an excuse,
justification, or other matter negating or limiting liability.". Curran
supra at page 1079
3. When looking to see whether a valid affirmative defense has been pled, the Court should
be applying a "but for test".
THIS COMMUNICATION IS FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO
COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT
PURPOSE.
FLMTSCENTURIONCONSUMER / Rev. 07.11.2018,
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/25/2021 01:08:05 PM.****4. In other words, the Defendant is admitting liability but for some excuse, justification or
other matter negating or limiting liability.
5. The following affirmative defenses raised in the Defendant(s) answer are not proper
affirmative defenses as set forth by Florida Rule of Civil Procedure, Rule 1.110(d) and do
not meet the "but for test" established by the Florida Supreme Court in Curran.
1.
WHEREFORE, Plaintiff respectfully requests that this Court enter an Order granting
Plaintiff's Motion to Strike Defendant's Amended Affirmative Defenses.
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true and correct copy of the above and foregoing was e-mailed
this 25" day of March, 2021, pursuant to the Florida Rules of Judicial Administration, Rule 2.516,
to Defendant's Attorney, Daniel N. Gonzalez, Esq., at dgonzalez@melandbudwick.com;
mramos@melandbudwick.com; and mrbstate@yahoo.com.
MODLIN SLINSKY, P.A.
Attorneys for Plaintiff
1551 Sawgrass Corporate Parkway, Suite 110
Sunrise, FL 33323
Telephone: 754-300-1058
Facsimile 754-551-5791
Primary E-Mail: pleadings@!ssmlaw.com
By: /s/ Jeff Piroozshad, Esq.
Jeff Piroozshad, Esq.
Florida Bar No. 423793
Modlin Slinsky File No.: 20103073
THIS COMMUNICATION IS FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO
COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT
PURPOSE.
FLMTSCENTURIONCONSUMER / Rev. 07.11.2018EXHIBIT AFiling # 123186181 E-Filed 03/16/2021 02:14:55 PM
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NUMBER: CACE-20-017261
AMERICAN EXPRESS NATIONAL BANK
f/k/a AMERICAN EXPRESS CENTURION
BANK,
Plaintiff,
v.
MARK AMARANT,
Defendant.
/
DEFENDANT’S AMENDED ANSWER AND AFFIRMATIVE DEFENSES
Defendant, Mark Amarant (“Defendant”), by and through undersigned counsel, files his
Amended Answer and Affirmative Defenses, and in support states as follows:
JURISDICTION AND PARTIES
1. This paragraph does not contain factual allegations requiring a response.
2. The Defendant is without knowledge, and therefore denies same.
3. Admitted.
4. The Defendant is without knowledge, and therefore denies same.
COUNTI
MONEY LENT
5. The Defendant reavers its responses to paragraphs | — 4 as if set forth herein.
6. The Defendant is without knowledge, and therefore denies same.
1
MELAND | BUDWICK
3200 SOUTHEAST FINANCIAL CENTER | 200 SOUTH BISCAYNE BOULEVARD | MIAMI, Fi. 33131 | T 305-358-6363The WHEREFORE clause does not contain any factual allegations requiring a response.
To the extent a response is required, the Defendant denies the allegations in the WHEREFORE
clause,
COUNT
ACCOUNTS STATED
fe The Defendant reavers its responses to paragraphs | — 4 as if set forth herein.
8. The Defendant admits he entered into a written contract with an American
Express entity for a Centurion Card. However, the Defendant denies that he agreed to the
“resulting balance.”
9. The Defendant is without knowledge because Exhibit “A” is not attached to the
complaint, and therefore denies same.
10. Denied.
The WHEREFORE clause does not contain any factual allegations requiring a response.
To the extent a response is required, the Defendant denies the allegations in the WHEREFORE
clause.
COUNT Ill
UNJUST ENRICH! T
11. The Defendant reavers its responses to paragraphs | through 4 as if set forth
herein.
12. The Defendant is without knowledge, and therefore denies same.
13. The Defendant is without knowledge, and therefore denies same.
14. The Defendant is without knowledge, and therefore denies same.
15. The Defendant is without knowledge, and therefore denies same.
16. The Defendant is without knowledge, and therefore denies same.
2
MELAND | BUDWICI
3200 SOUTHEAST FINANCIAL CENTER | 200 SOUTH BISCAYNE BOULEVARD | MIAMI, FL 33131 | T 305-358-636317, The Defendant is without knowledge, and therefore denies same.
18. Denied.
The WHEREFORE clause does not contain any factual allegations requiring a response.
To the extent a response is required, the Defendant denies the allegations in the WHEREFORE
clause.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
The Plaintiff's claims are barred in whole or in part by the doctrine of impossibility of
performance. The Defendant’s company has been crippled as a result of the COVID 19
pandemic, which company is currently in a Chapter 11 bankruptcy proceeding.
The Defendant reserves his right to amend, modify and/or supplement these Affirmative
Defenses as further facts become known, either through discovery or otherwise, and on any other
reasonable basis.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
MELAND | BUDWICK
3200 SOUTHEAST FINANCIAL CENTER | 200 SOUTH BISCAYNE BOULEVARD | MIAMI, FL 33131 | T 305-358-6363CERTIFICATE OF SERVICE
1 CERTIFY that the foregoing document has been furnished on March 16, 2021, upon all
registers users via the Florida Courts e-Filing Portal.
s/ Daniel N, Gonzalez
Daniel N. Gonzalez, Esquire
Florida Bar No. 592749
dgonzalez@melandbudwick.com
3200 Southeast Financial Center
200 South Biscayne Boulevard
Miami, Florida 33131
Telephone: (305) 358-6363
Telecopy: (305) 358-1221
Attorneys for Mark Amarant, Defendant
Email Designation per Fla. R. Jud.
Admin. 2.516:
dgonzalez@melandbudwick.com
mramos@melandbudwick.com
mrbstate@yahoo.com
4
MELAND | BUDWICK
3200 SOUTHEAST FINANCIAL CENTER | 200 SOUTH BISCAYNE BOULEVARD | MIAMI, FL 33131 | T 305-358-6363
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Filing # 123763428 E-Filed 03/25/2021 01:08:06 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA AMERICAN EXPRESS NATIONAL BANK CASE NO.: CACE-20-017261 f/k/a American Express Centurion Bank, Plaintiff, vs. MARK AMARANT, Defendant(s) PLAINTIFF'S MOTION TO STRIKE DEFENDANT(S) AMENDED ANSWER AND AFFIRMATIVE DEFENSES COMES NOW, the Plaintiff, AMERICAN EXPRESS NATIONAL BANK f/k/a American Express Centurion Bank, by and through the undersigned attorney, files this Motion to Strike the Defendant(s) Affirmative Defenses, included within Defendant(s) Amended Answer, a copy of which is attached hereto, and as grounds therefore, Plaintiff would state: 1. Florida Rules of Civil Procedure, Rule 1.110(d) provides as follows "Affirmative Defenses. In pleading to a preceding pleading a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. . ." See Fla. R. Civ. P. 1.110(d). 2. The Florida Supreme Court in the matter of State Farm Mutual Automobile Insurance Company v. Curran, 135 So. 3d 1071, (Fla 2014), held that: “An affirmative defense is a defense which admits the cause of action, but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter negating or limiting liability.". Curran supra at page 1079 3. When looking to see whether a valid affirmative defense has been pled, the Court should be applying a "but for test". THIS COMMUNICATION IS FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. FLMTSCENTURIONCONSUMER / Rev. 07.11.2018, *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/25/2021 01:08:05 PM.****4. In other words, the Defendant is admitting liability but for some excuse, justification or other matter negating or limiting liability. 5. The following affirmative defenses raised in the Defendant(s) answer are not proper affirmative defenses as set forth by Florida Rule of Civil Procedure, Rule 1.110(d) and do not meet the "but for test" established by the Florida Supreme Court in Curran. 1. WHEREFORE, Plaintiff respectfully requests that this Court enter an Order granting Plaintiff's Motion to Strike Defendant's Amended Affirmative Defenses. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the above and foregoing was e-mailed this 25" day of March, 2021, pursuant to the Florida Rules of Judicial Administration, Rule 2.516, to Defendant's Attorney, Daniel N. Gonzalez, Esq., at dgonzalez@melandbudwick.com; mramos@melandbudwick.com; and mrbstate@yahoo.com. MODLIN SLINSKY, P.A. Attorneys for Plaintiff 1551 Sawgrass Corporate Parkway, Suite 110 Sunrise, FL 33323 Telephone: 754-300-1058 Facsimile 754-551-5791 Primary E-Mail: pleadings@!ssmlaw.com By: /s/ Jeff Piroozshad, Esq. Jeff Piroozshad, Esq. Florida Bar No. 423793 Modlin Slinsky File No.: 20103073 THIS COMMUNICATION IS FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. FLMTSCENTURIONCONSUMER / Rev. 07.11.2018EXHIBIT AFiling # 123186181 E-Filed 03/16/2021 02:14:55 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NUMBER: CACE-20-017261 AMERICAN EXPRESS NATIONAL BANK f/k/a AMERICAN EXPRESS CENTURION BANK, Plaintiff, v. MARK AMARANT, Defendant. / DEFENDANT’S AMENDED ANSWER AND AFFIRMATIVE DEFENSES Defendant, Mark Amarant (“Defendant”), by and through undersigned counsel, files his Amended Answer and Affirmative Defenses, and in support states as follows: JURISDICTION AND PARTIES 1. This paragraph does not contain factual allegations requiring a response. 2. The Defendant is without knowledge, and therefore denies same. 3. Admitted. 4. The Defendant is without knowledge, and therefore denies same. COUNTI MONEY LENT 5. The Defendant reavers its responses to paragraphs | — 4 as if set forth herein. 6. The Defendant is without knowledge, and therefore denies same. 1 MELAND | BUDWICK 3200 SOUTHEAST FINANCIAL CENTER | 200 SOUTH BISCAYNE BOULEVARD | MIAMI, Fi. 33131 | T 305-358-6363The WHEREFORE clause does not contain any factual allegations requiring a response. To the extent a response is required, the Defendant denies the allegations in the WHEREFORE clause, COUNT ACCOUNTS STATED fe The Defendant reavers its responses to paragraphs | — 4 as if set forth herein. 8. The Defendant admits he entered into a written contract with an American Express entity for a Centurion Card. However, the Defendant denies that he agreed to the “resulting balance.” 9. The Defendant is without knowledge because Exhibit “A” is not attached to the complaint, and therefore denies same. 10. Denied. The WHEREFORE clause does not contain any factual allegations requiring a response. To the extent a response is required, the Defendant denies the allegations in the WHEREFORE clause. COUNT Ill UNJUST ENRICH! T 11. The Defendant reavers its responses to paragraphs | through 4 as if set forth herein. 12. The Defendant is without knowledge, and therefore denies same. 13. The Defendant is without knowledge, and therefore denies same. 14. The Defendant is without knowledge, and therefore denies same. 15. The Defendant is without knowledge, and therefore denies same. 16. The Defendant is without knowledge, and therefore denies same. 2 MELAND | BUDWICI 3200 SOUTHEAST FINANCIAL CENTER | 200 SOUTH BISCAYNE BOULEVARD | MIAMI, FL 33131 | T 305-358-636317, The Defendant is without knowledge, and therefore denies same. 18. Denied. The WHEREFORE clause does not contain any factual allegations requiring a response. To the extent a response is required, the Defendant denies the allegations in the WHEREFORE clause. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE The Plaintiff's claims are barred in whole or in part by the doctrine of impossibility of performance. The Defendant’s company has been crippled as a result of the COVID 19 pandemic, which company is currently in a Chapter 11 bankruptcy proceeding. The Defendant reserves his right to amend, modify and/or supplement these Affirmative Defenses as further facts become known, either through discovery or otherwise, and on any other reasonable basis. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 3 MELAND | BUDWICK 3200 SOUTHEAST FINANCIAL CENTER | 200 SOUTH BISCAYNE BOULEVARD | MIAMI, FL 33131 | T 305-358-6363CERTIFICATE OF SERVICE 1 CERTIFY that the foregoing document has been furnished on March 16, 2021, upon all registers users via the Florida Courts e-Filing Portal. s/ Daniel N, Gonzalez Daniel N. Gonzalez, Esquire Florida Bar No. 592749 dgonzalez@melandbudwick.com 3200 Southeast Financial Center 200 South Biscayne Boulevard Miami, Florida 33131 Telephone: (305) 358-6363 Telecopy: (305) 358-1221 Attorneys for Mark Amarant, Defendant Email Designation per Fla. R. Jud. Admin. 2.516: dgonzalez@melandbudwick.com mramos@melandbudwick.com mrbstate@yahoo.com 4 MELAND | BUDWICK 3200 SOUTHEAST FINANCIAL CENTER | 200 SOUTH BISCAYNE BOULEVARD | MIAMI, FL 33131 | T 305-358-6363