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Filing # 132737397 E-Filed 08/16/2021 12:25:06 PM
USA MEDICARE ADVISORS INSURANCE IN THE CIRCUIT COURT OF THE 17TH
AGENCY LLC, a Florida Limited Liability JUDICIAL CIRCUIT IN AND FOR
Company, BROWARD COUNTY, FLORIDA
Plaintiff, CASE NO: CACE-21-010364
VS.
ELITE HEALTH INVESTMENTS, INC., a
Florida Profit Corporation
Defendant.
DEFENDANT'S ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM
The Defendant, ELITE HEALTH INVESTMENTS, INC., ("ELITE") by and through
undersigned counsel, files its Answer and Affirmative Defenses and Counterclaim to
Plaintiffs Complaint as follows:
1. Admitted for jurisdictional purposes only, otherwise denied and demands
strict proof of the same.
2. Without knowledge, and therefore denies the allegations contained in
Paragraph 2 and demands strict proof of the same.
3. Defendant is without knowledge, and therefore denies the allegations
contained in Paragraph 3 of the Complaint and demands strict proof of the same.
4. Admitted for jurisdictional purpose only.
5. Defendant denies the allegations contained in Paragraph 5 of the Complaint
and demands strict proof of the same.
6. Admitted for jurisdictional purposes only, otherwise denied.
7. Defendant is without knowledge, and therefore denies the allegations
contained in Paragraph 7 of the Complaint and demands strict proof of the same.
***
FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/16/2021 12:25:03 PM.****
8. Defendant is without knowledge, and therefore denies the allegations
contained in Paragraph 8 of the Complaint and demands strict proof of the same.
9. Defendant is without knowledge, and therefore denies the allegations
contained in Paragraph 9 of the Complaint and demands strict proof of the same.
10. Defendant is without knowledge, and therefore denies the allegations
contained in Paragraph 10 of the Complaint and demands strict proof of the same.
11. Admitted to the extent that the parties entered into an agreement, but denies
all other allegations contained in Paragraph 11 of the Complaint and demands strict proof
of the same.
12. Admitted to the extent that the parties entered into an agreement, but denies
all other allegations contained in Paragraph 12 of the Complaint and demands strict proof
of the same.
13. Admitted to the extent that the parties entered into an agreement, but denies
all other allegations contained in Paragraph 13 of the Complaint and demands strict proof
of the same.
14. Admitted to the extent that the parties entered into an agreement, but denies
all other allegations contained in Paragraph 14 of the Complaint and demands strict proof
of the same.
15. Admitted to the extent that the parties entered into an agreement, but denies
all other allegations contained in Paragraph 15 of the Complaint and demands strict proof
of the same.
16. Admitted to the extent that the parties entered into an agreement, but denies
all other allegations contained in Paragraph 16 of the Complaint and demands strict proof
of the same.
17. Admitted to the extent that the parties entered into an agreement, but denies
all other allegations contained in Paragraph 17 of the Complaint and demands strict proof
of the same.
18. Admitted to the extent that the parties entered into an agreement, but denies
all other allegations contained in Paragraph 18 of the Complaint and demands strict proof
of the same.
19. Defendant admits Marketing Materials were provided, but denies all other
allegations contained in Paragraph 19 of the Complaint and demands strict proof of the
same.
20. Defendant admits that invoices were produced in connection to Marketing
Material, but denies all other allegations contained in Paragraph 20 of the Complaint and
demands strict proof of the same.
21. Defendant denies the allegations contained in Paragraph 21 of the
Complaint and demands strict proof of the same.
22. Defendant denies the allegations contained in Paragraph 22 of the
Complaint and demands strict proof of the same.
23. Defendant denies the allegations contained in Paragraph 23 of the
Complaint and demands strict proof of the same.
24. Defendant admits to receiving a notice of termination letter on or around
February 8, 2021, and denies all other allegations contained in Paragraph 24 of the
Complaint and demands strict proof of the same.
25. Admitted.
26. Admitted.
27. Admitted.
28. Defendant denies the allegations contained in paragraph 28 of the
Complaint and demands strict proof of the same.
29. Defendant denies the allegations contained in Paragraph 29 of the
Complaint and demands strict proof of the same.
30. Defendant denies the allegations contained in Paragraph 30 of the
Complaint and demands strict proof of the same.
31. Defendant denies the allegations contained in Paragraph 31 of the
Complaint and demands strict proof of the same.
32. Defendant denies the allegations contained in Paragraph 32 of the
Complaint and demands strict proof of the same.
33. Defendant denies the allegations contained in Paragraph 33 of the
Complaint and demands strict proof of the same.
34. Defendant denies the allegations contained in Paragraph 34 of the
Complaint and demands strict proof of the same.
COUNT I -
UNJUST ENRICHMENT
35. Elite realleges Paragraphs 1 through 34 as if fully set forth herein.
36. Defendant denies the allegations contained in Paragraph 36 of the
Complaint and demands strict proof of the same.
37. Defendant denies the allegations contained in Paragraph 37 of the
Complaint and demands strict proof of the same.
38. Defendant denies the allegations contained in Paragraph 38 of the
Complaint and demands strict proof of the same.
39. Defendant denies the allegations contained in Paragraph 39 of the
Complaint and demands strict proof of the same.
40. Defendant denies the allegations contained in Paragraph 40 of the
Complaint and demands strict proof of the same.
41. Defendant denies the allegations contained in Paragraph 41 of the
Complaint and demands strict proof of the same.
42. Defendant denies the allegations contained in Paragraph 42 of the
Complaint and demands strict proof of the same.
COUNT Il -
PROMISSORY ESTOPPEL
43. Elite realleges paragraphs 1 through 34 as if fully set forth herein.
44. Defendant denies the allegations contained in Paragraph 44 of the
Complaint and demands strict proof of the same.
45. Defendant is without knowledge, and therefore denies the allegations
contained in Paragraph 45 of the Complaint and demands strict proof of the same.
46. Defendant denies the allegations contained in Paragraph 46 of the
Complaint and demands strict proof of the same.
47. Defendant denies the allegations contained in Paragraph 47 of the
Complaint and demands strict proof of the same.
48. Defendant denies the allegations contained in Paragraph 48 of the
Complaint and demands strict proof of the same.
COUNT Ill- BREACH OF CONTRACT OF THE DOWNLINE AGENT AGREEMENT
49. Elite realleges Paragraphs 1 through 34 as if fully set forth herein.
50. Admitted.
51. Defendant denies the allegations contained in Paragraph 51 of the
Complaint and demands strict proof of the same.
52. Defendant denies the allegations contained in Paragraph 52 of the
Complaint and demands strict proof of the same.
53. Defendant denies the allegations contained in Paragraph 53 of the
Complaint and demands strict proof of the same.
54. Defendant denies the allegations contained in Paragraph 54 of the
Complaint and demands strict proof of the same.
55. Defendant denies the allegations contained in Paragraph 55 of the
Complaint and demands strict proof of the same.
56. Defendant denies the allegations contained in Paragraph 56 of the
Complaint and demands strict proof of the same.
57. Defendant denies the allegations contained in Paragraph 57 of the
Complaint and demands strict proof of the same.
58. Defendant denies the allegations contained in Paragraph 58 of the
Complaint and demands strict proof of the same.
59. Defendant denies the allegations contained in Paragraph 59 of the
Complaint and demands strict proof of the same.
COUNT IV -
BREACH OF CONTRACT IMPLIED IN FACT
60. Elite realleges Paragraphs 1 through 34 as if fully set forth herein.
61. Defendant denies the allegations contained in Paragraph 61 of the
Complaint and demands strict proof of the same.
62. Defendant admits that invoices were produced in connection to Marketing
Material, but denies all other allegations contained in Paragraph 62 of the Complaint and
demands strict proof of the same.
63. Defendant denies the allegations contained in Paragraph 63 of the
Complaint and demands strict proof of the same.
64. Defendant denies the allegations contained in Paragraph 64 of the
Complaint and demands strict proof of the same.
65. Defendant denies the allegations contained in Paragraph 65 of the
Complaint and demands strict proof of the same.
66. Defendant denies the allegations contained in Paragraph 66 of the
Complaint and demands strict proof of the same.
67. Defendant denies the allegations contained in Paragraph 67 of the
Complaint and demands strict proof of the same.
68. Defendant denies the allegations contained in Paragraph 68 of the
Complaint and demands strict proof of the same.
COUNT V -
VIOLATION OF FLORIDA'S DECEPTIVE AND UNFAIR TRADE
PRACTICES ACT
69. Elite realleges Paragraphs 1 through 34 as if fully set forth herein.
70. Defendant denies the allegations contained in Paragraph 70 of the
Complaint and demands strict proof of the same.
71. Defendant denies the allegations contained in Paragraph 71 of the
Complaint and demands strict proof of the same.
72. Defendant denies the allegations contained in Paragraph 72 of the
Complaint and demands strict proof of the same.
73. Defendant denies the allegations contained in Paragraph 73 of the
Complaint and demands strict proof of the same.
74. Defendant denies the allegations contained in Paragraph 74 of the
Complaint and demands strict proof of the same.
75. Defendant denies the allegations contained in Paragraph 75 of the
Complaint and demands strict proof of the same.
AFFIRMATIVE DEFENSES
76. As the first affirmative defense, the Defendant states that the Plaintiffs
should not receive an equitable remedy as Plaintiffacted in bad faith and should be barred
for relief by the doctrine of unclean hands.
77. As the second affirmative defense, Defendant states that claims for
damages in each count are duplicative of the claims contended in other counts in the
Complaint and accordingly duplicative damages may not be recovered.
78. As the third affirmative defense, Defendant states that it properly paid the
Plaintiffs for any covered portion of Marketing Material that was given to them and
materialized, and any other payments would unjustly enrich the Plaintiff.
79. As the fourth affirmative defense, Defendant states that it properly fulfilled
its obligations under the contract to pay for Marketing Material which could be used to sell
Medicare Supplemental Policies and no further payments are owed.
80. As the fifth affirmative defense, Defendant states that an equitable remedy
would unjustly enrich Plaintiffs, as Plaintiff owes unpaid commission bonuses owed to
Defendant.
81. As the sixth affirmative defense, Defendant states that upon termination of
the agreement by Plaintiffs, Defendants were unable to access the Marketing Material
which compensation is being sought for.
82. As the seventh affirmative defense, Defendant reserves the right to assert
further Affirmative Defenses as they become known through discovery.
WHEREFORE, the Defendant ELITE HEALTH INVESTMENTS, INC., denies the
allegations within Complaint, and demands judgment in its favor, costs, and jury trial.
ELITE HEALTH INVESTMENTS, INC.'S
COUNTERCLAIM AGAINST THE USA
MEDICARE ADVISORS INSURANCE AGENCY LLC
COMES NOW, the ELITE HEALTH INVESTMENTS
(hereinafter or 'ELITE"), INC. by and through its
undersigned counsel, and sue the USA MEDICARE
ADVISORS INSURANCE AGENCY LLC (hereinafter or
'UMA"), and in support thereof alleges as follows.
1. This is an action for damages that exceeds Thirty Thousand Dollars
($30,000.00), exclusive of interest, costs, and attorney's fees, and otherwise within the
jurisdictional limits of this Court.
2. At all times material hereto, Counter-Defendant was and is a company
organized under the laws of the State of Florida with its principal place of business within
this county.
3. At all times material hereto, Counter-Plaintiff was and is a corporation
incorporated in the State of Florida.
4. Venue is proper in BROWARD COUNTY, because the cause of action
accrued in this county.
GENERAL ALLEGATIONS
5- On or about October 26, 2020, the Parties executed and entered into a
Downline Agent Agreement ("the Agreement"), in which ELITE would sell Medicare
Supplemental Plans as a downline agent of UMA.
6. As part of the Agreement, for each Medicare Supplemental Policy ELITE
would sell, UMA is to pay ELITE a one-time commission called the "Cash Purchase Price".
7. The Cash Purchase Price section of the Agreement expressly states "For
each Medicare Supplement Policy Downline Agent sells, Company shall pay Downline
Agent a one-time payment (hereinafter, the "Cash Purchase Price")."
8. Throughout the terms of the Agreement, ELITE completed all conditions
precedent of the Agreement, and thus is legally entitled to the one-time commission
bonus for each Medicare Supplemental Policy it has sold on behalf of the
9. Furthermore, throughout the terms of the Agreement ELITE sold Medicare
Supplemental Policies as an agent for UMA fortheir benefit with the expectation to receive
a commission for each sold Policy.
10. UMA has yet to pay a significant portion to of the commission bonuses that
are legally owed to ELITE pursuant to the Agreement.
11. To date UMA owes Elite approximately $214,460.00 in outstanding unpaid
commissions owed to ELITE pursuant to the Agreement.
12. Furthermore, UMA knowingly and improperly accepted $30,000.00 in
bonuses from Aetna Insurance company that was to be paid to ELITE as commission
bonuses for Medicare Supplemental Policies sold.
13. On or about February 8, 2021, ELITE notified UMA of its intentions to
terminate the Agreement and provided 90 days written notice of termination pursuant to
the terms and conditions of the Agreement.
14. On or about February 8, 2021, UMA's counsel expressed that the
Agreement was to be terminated effective immediately upon receipt of correspondence
from ELITE.
15. Upon termination of the Agreement, ELITE was denied access and locked
out of UMA's database which contained previous marketing materials paid for by ELITE.
16. To this date UMA has yet to pay a significant portion of the commission
bonuses that are legally owed to ELITE for sold Medicare Supplemental Policies.
17. In addition, ELITE has made good faith efforts to collect these unpaid
commission bonuses to them to no avail.
18. This concealment of commissions bonuses legally owed to ELITE
constitutes a material breach of the Agreement executed by the Parties' pursuant to the
"CASH PURCHASE PRICE" of the Agreement.
19. In view of UMA's clear and unequivocal intention not to comply with the
terms of the Parties' Agreement, ELITE has been forced to file the instant counterclaim.
COUNT I -
UNJUST ENRICHMENT
20. realleges paragraphs 1 through 19.
21. As evidenced by the factual allegation, ELITE conferred a benefit on UMA
when ELITE acted as a downline agent and sold Medicare Supplemental Policies for UMA
for which they received compensation for.
22. ELITE acting as a downline agent selling Medicare Supplemental Policies
for UMA, benefited UMA by reducing the time and effort that was generally required to be
expended by UMA to sell their Medicare Supplemental Policies to.
23. Pursuant to the Agreement, UMA would pay a commission to ELITE for all
Medicare Supplemental Policies.
24. UMA had actual knowledge of this benefit that by having ELITE has a
downline agent selling Medicare Supplemental Policies they would be able to sell more
policies, wherein saving time and effort in exchange for a commission for each policy sold
by ELITE.
25. By keeping the commissions for themselves and not paying the commission
owed to ELITE, UMA voluntarilyaccepted and kept these commissions.
26. Due to UMA's refusal to satisfy the total remaining balance of commissions
owed to ELITE, UMA has been unjustly enriched and ELITE has sustained significant
monetary damages least in the amount of the total unpaid commissions equaling
$214,460.00 legally owed to ELITE.
COUNT Il -
PROMISSORY ESTOPPEL
27. realleges paragraphs 1 through 19.
28. UMA promised to perform under the material and essential terms
memorialized in the Agreement, which includes the payment of a one-time commissions
to Elite for each Medicare Supplemental Policies sold.
29. UMA should have reasonably expected its promise to change Elite's
behavior in reliance on said promise.
30. As a result of UMA's promise to perform under the Agreement, which it
failed to uphold, Elite reasonably relied on said promise to its detriment.
31. More specifically, Elite has sustained significant monetary damages at in
the amount of unpaid commissions legally owed to Elite pursuant to the Agreement, which
currently amounts to $214,460.00.
32. Injustice can only be avoided if UMA promises to perform under the terms
of the Agreement and is enforced.
COUNT Ill- BREACH OF CONTRACT OF THE DOWNLINE AGENT AGREEMENT
33. realleges paragraphs 1 through 19.
34. The Agreement constitutes a valid and binding written contract between the
Parties.
35. As evidenced by the countersigned Agreement, the Parties has a clear
meeting of the minds regarding the material and essential terms of their Agreement and
intended to be bound by the terms of the Agreement.
36. ELITE performed all conditions precedent and/or concurrent to the brining
of this action.
37. has breached the Agreement by failing and
refusing to perform under the terms of the Agreement including, without limitation, by
failing to fully and timely make commission payments legally owed to ELITE each
Medicare Supplemental Policies sold, which currently amount to approximately
$214,460.00
38. Pursuant to the Cash Purchase Price section of the Agreement, UMA was
contractually obligated to satisfy all commission bonuses that became legally due to
ELITE for each policy sold.
39. UMA's obligation to pay all commissions owed to ELITE in connection to
sold Medicare Supplemental Policies was a material and essential term of the Agreement.
40. As a result of UMA's material breach of the Agreement, ELITE has
sustained significant monetary damages at least in the amount of total unpaid commission
bonuses owed to ELITE, which are currently amount to approximately$214,460.00.
41. Due to the failure of UMA to perform in accordance with the Agreement,
ELITE has been irreparably harmed and has been forced to institute this counterclaim to
recover the sums owed.
COUNT IV -
BREACH OF CONTRACT IMPLIED IN FACT
42. realleges paragraphs 1 through 19.
43. As evidenced by the Parties' course of dealing, the Parties had a valid and
enforceable implied-in-fact contract with respect to one-time commission payments.
44. During the term of the Agreement, ELITE sold numerous Medicare
Supplemental Policies on behalf of UMA which per the Agreement entities ELITE to these
commission bonuses.
45. On each occasion, UMA benefited by having ELITE act as an agent selling
Medicare Supplemental Policies on their behalf.
46. As such, one of the material terms of the Parties' implied-in-fact contract
was that UMA would pay a commission bonus to ELITE for each Medicare Supplemental
Policy sold and retained by the insured.
47. ELITE has since made several inquiries for commission bonuses owed to
them from UMA to no avail.
48. UMA's failure to pay the total remaining balance of commission bonuses
owed to ELITE for sold Medicare Supplemental Policies constitutes a material breach of
the Parties' implied-in-fact contract.
49. As a result of UMA's material breach, ELITE has been damaged by being
deprived of the value of the commission bonuses owed to them from UMA in the total
amount of $214,460.00.
COUNT V -
VIOLATION OF FLORIDA'S DECEPTIVE AND UNFAIR TRADE
PRACTICES ACT
50. realleges paragraphs 1 through 19.
51. UMA engaged in a deceptive and unfair act in the conduct of its trade, which
act was the legal cause of actual damage sustained by ELITE.
52. Upon information and belief, UMA actively withheld commission bonuses
from ELITE for sold Medicare Supplemental Policies, during the term of the agreement.
53. In additional to amounting to a material breach of the Cash Purchase Price
of the Agreement, UMA's conduct also constitute as unconscionable unfair and deceptive
trade practice because they withhold the commissions bonuses that were legally owed to
ELITE pursuant to the terms of the Agreement.
54. UMA's conduct has irreparably harmed ELITE due to the large amounts of
commission bonuses that have remained unpaid in the total amount of $214,460.00.
55. UMA knew and had reason to know its actions would cause, did cause,
and/or likely to cause economic injury to ELITE's Business.
PRAYER FOR RELIEF
WHEREFORE, under Counts I-V of this counterclaim,
demands judgment against in its favor for damages together
with interest, costs, and attorney's fees, and for such further relief this court deems just
and proper.
DEMAND FOR JURY TRIAL
herein demands a trial by jury of all issues so triable.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was furnished
via the e-portal to: Veronika Balbuzanova, Esq., Johnson I Dalal, 111 N. Pine Island Road,
Suite 103, Plantation, FL 33324; on :
August 16,2021
BECK LAW, P.A.
901 Clint Moore Road, Suite C
Boca Raton, FL 33487
Tel: (561) 990-1647
Fax: (561) 717-9673
By: /s/ JOSHUA S. BECK, ESQ.
Florida Bar No.- 040659
Primary E-Mail:
Secondary E-Mail: beck@becklawpa.corn
Attorney for
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Filing # 132737397 E-Filed 08/16/2021 12:25:06 PM USA MEDICARE ADVISORS INSURANCE IN THE CIRCUIT COURT OF THE 17TH AGENCY LLC, a Florida Limited Liability JUDICIAL CIRCUIT IN AND FOR Company, BROWARD COUNTY, FLORIDA Plaintiff, CASE NO: CACE-21-010364 VS. ELITE HEALTH INVESTMENTS, INC., a Florida Profit Corporation Defendant. DEFENDANT'S ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM The Defendant, ELITE HEALTH INVESTMENTS, INC., ("ELITE") by and through undersigned counsel, files its Answer and Affirmative Defenses and Counterclaim to Plaintiffs Complaint as follows: 1. Admitted for jurisdictional purposes only, otherwise denied and demands strict proof of the same. 2. Without knowledge, and therefore denies the allegations contained in Paragraph 2 and demands strict proof of the same. 3. Defendant is without knowledge, and therefore denies the allegations contained in Paragraph 3 of the Complaint and demands strict proof of the same. 4. Admitted for jurisdictional purpose only. 5. Defendant denies the allegations contained in Paragraph 5 of the Complaint and demands strict proof of the same. 6. Admitted for jurisdictional purposes only, otherwise denied. 7. Defendant is without knowledge, and therefore denies the allegations contained in Paragraph 7 of the Complaint and demands strict proof of the same. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/16/2021 12:25:03 PM.**** 8. Defendant is without knowledge, and therefore denies the allegations contained in Paragraph 8 of the Complaint and demands strict proof of the same. 9. Defendant is without knowledge, and therefore denies the allegations contained in Paragraph 9 of the Complaint and demands strict proof of the same. 10. Defendant is without knowledge, and therefore denies the allegations contained in Paragraph 10 of the Complaint and demands strict proof of the same. 11. Admitted to the extent that the parties entered into an agreement, but denies all other allegations contained in Paragraph 11 of the Complaint and demands strict proof of the same. 12. Admitted to the extent that the parties entered into an agreement, but denies all other allegations contained in Paragraph 12 of the Complaint and demands strict proof of the same. 13. Admitted to the extent that the parties entered into an agreement, but denies all other allegations contained in Paragraph 13 of the Complaint and demands strict proof of the same. 14. Admitted to the extent that the parties entered into an agreement, but denies all other allegations contained in Paragraph 14 of the Complaint and demands strict proof of the same. 15. Admitted to the extent that the parties entered into an agreement, but denies all other allegations contained in Paragraph 15 of the Complaint and demands strict proof of the same. 16. Admitted to the extent that the parties entered into an agreement, but denies all other allegations contained in Paragraph 16 of the Complaint and demands strict proof of the same. 17. Admitted to the extent that the parties entered into an agreement, but denies all other allegations contained in Paragraph 17 of the Complaint and demands strict proof of the same. 18. Admitted to the extent that the parties entered into an agreement, but denies all other allegations contained in Paragraph 18 of the Complaint and demands strict proof of the same. 19. Defendant admits Marketing Materials were provided, but denies all other allegations contained in Paragraph 19 of the Complaint and demands strict proof of the same. 20. Defendant admits that invoices were produced in connection to Marketing Material, but denies all other allegations contained in Paragraph 20 of the Complaint and demands strict proof of the same. 21. Defendant denies the allegations contained in Paragraph 21 of the Complaint and demands strict proof of the same. 22. Defendant denies the allegations contained in Paragraph 22 of the Complaint and demands strict proof of the same. 23. Defendant denies the allegations contained in Paragraph 23 of the Complaint and demands strict proof of the same. 24. Defendant admits to receiving a notice of termination letter on or around February 8, 2021, and denies all other allegations contained in Paragraph 24 of the Complaint and demands strict proof of the same. 25. Admitted. 26. Admitted. 27. Admitted. 28. Defendant denies the allegations contained in paragraph 28 of the Complaint and demands strict proof of the same. 29. Defendant denies the allegations contained in Paragraph 29 of the Complaint and demands strict proof of the same. 30. Defendant denies the allegations contained in Paragraph 30 of the Complaint and demands strict proof of the same. 31. Defendant denies the allegations contained in Paragraph 31 of the Complaint and demands strict proof of the same. 32. Defendant denies the allegations contained in Paragraph 32 of the Complaint and demands strict proof of the same. 33. Defendant denies the allegations contained in Paragraph 33 of the Complaint and demands strict proof of the same. 34. Defendant denies the allegations contained in Paragraph 34 of the Complaint and demands strict proof of the same. COUNT I - UNJUST ENRICHMENT 35. Elite realleges Paragraphs 1 through 34 as if fully set forth herein. 36. Defendant denies the allegations contained in Paragraph 36 of the Complaint and demands strict proof of the same. 37. Defendant denies the allegations contained in Paragraph 37 of the Complaint and demands strict proof of the same. 38. Defendant denies the allegations contained in Paragraph 38 of the Complaint and demands strict proof of the same. 39. Defendant denies the allegations contained in Paragraph 39 of the Complaint and demands strict proof of the same. 40. Defendant denies the allegations contained in Paragraph 40 of the Complaint and demands strict proof of the same. 41. Defendant denies the allegations contained in Paragraph 41 of the Complaint and demands strict proof of the same. 42. Defendant denies the allegations contained in Paragraph 42 of the Complaint and demands strict proof of the same. COUNT Il - PROMISSORY ESTOPPEL 43. Elite realleges paragraphs 1 through 34 as if fully set forth herein. 44. Defendant denies the allegations contained in Paragraph 44 of the Complaint and demands strict proof of the same. 45. Defendant is without knowledge, and therefore denies the allegations contained in Paragraph 45 of the Complaint and demands strict proof of the same. 46. Defendant denies the allegations contained in Paragraph 46 of the Complaint and demands strict proof of the same. 47. Defendant denies the allegations contained in Paragraph 47 of the Complaint and demands strict proof of the same. 48. Defendant denies the allegations contained in Paragraph 48 of the Complaint and demands strict proof of the same. COUNT Ill- BREACH OF CONTRACT OF THE DOWNLINE AGENT AGREEMENT 49. Elite realleges Paragraphs 1 through 34 as if fully set forth herein. 50. Admitted. 51. Defendant denies the allegations contained in Paragraph 51 of the Complaint and demands strict proof of the same. 52. Defendant denies the allegations contained in Paragraph 52 of the Complaint and demands strict proof of the same. 53. Defendant denies the allegations contained in Paragraph 53 of the Complaint and demands strict proof of the same. 54. Defendant denies the allegations contained in Paragraph 54 of the Complaint and demands strict proof of the same. 55. Defendant denies the allegations contained in Paragraph 55 of the Complaint and demands strict proof of the same. 56. Defendant denies the allegations contained in Paragraph 56 of the Complaint and demands strict proof of the same. 57. Defendant denies the allegations contained in Paragraph 57 of the Complaint and demands strict proof of the same. 58. Defendant denies the allegations contained in Paragraph 58 of the Complaint and demands strict proof of the same. 59. Defendant denies the allegations contained in Paragraph 59 of the Complaint and demands strict proof of the same. COUNT IV - BREACH OF CONTRACT IMPLIED IN FACT 60. Elite realleges Paragraphs 1 through 34 as if fully set forth herein. 61. Defendant denies the allegations contained in Paragraph 61 of the Complaint and demands strict proof of the same. 62. Defendant admits that invoices were produced in connection to Marketing Material, but denies all other allegations contained in Paragraph 62 of the Complaint and demands strict proof of the same. 63. Defendant denies the allegations contained in Paragraph 63 of the Complaint and demands strict proof of the same. 64. Defendant denies the allegations contained in Paragraph 64 of the Complaint and demands strict proof of the same. 65. Defendant denies the allegations contained in Paragraph 65 of the Complaint and demands strict proof of the same. 66. Defendant denies the allegations contained in Paragraph 66 of the Complaint and demands strict proof of the same. 67. Defendant denies the allegations contained in Paragraph 67 of the Complaint and demands strict proof of the same. 68. Defendant denies the allegations contained in Paragraph 68 of the Complaint and demands strict proof of the same. COUNT V - VIOLATION OF FLORIDA'S DECEPTIVE AND UNFAIR TRADE PRACTICES ACT 69. Elite realleges Paragraphs 1 through 34 as if fully set forth herein. 70. Defendant denies the allegations contained in Paragraph 70 of the Complaint and demands strict proof of the same. 71. Defendant denies the allegations contained in Paragraph 71 of the Complaint and demands strict proof of the same. 72. Defendant denies the allegations contained in Paragraph 72 of the Complaint and demands strict proof of the same. 73. Defendant denies the allegations contained in Paragraph 73 of the Complaint and demands strict proof of the same. 74. Defendant denies the allegations contained in Paragraph 74 of the Complaint and demands strict proof of the same. 75. Defendant denies the allegations contained in Paragraph 75 of the Complaint and demands strict proof of the same. AFFIRMATIVE DEFENSES 76. As the first affirmative defense, the Defendant states that the Plaintiffs should not receive an equitable remedy as Plaintiffacted in bad faith and should be barred for relief by the doctrine of unclean hands. 77. As the second affirmative defense, Defendant states that claims for damages in each count are duplicative of the claims contended in other counts in the Complaint and accordingly duplicative damages may not be recovered. 78. As the third affirmative defense, Defendant states that it properly paid the Plaintiffs for any covered portion of Marketing Material that was given to them and materialized, and any other payments would unjustly enrich the Plaintiff. 79. As the fourth affirmative defense, Defendant states that it properly fulfilled its obligations under the contract to pay for Marketing Material which could be used to sell Medicare Supplemental Policies and no further payments are owed. 80. As the fifth affirmative defense, Defendant states that an equitable remedy would unjustly enrich Plaintiffs, as Plaintiff owes unpaid commission bonuses owed to Defendant. 81. As the sixth affirmative defense, Defendant states that upon termination of the agreement by Plaintiffs, Defendants were unable to access the Marketing Material which compensation is being sought for. 82. As the seventh affirmative defense, Defendant reserves the right to assert further Affirmative Defenses as they become known through discovery. WHEREFORE, the Defendant ELITE HEALTH INVESTMENTS, INC., denies the allegations within Complaint, and demands judgment in its favor, costs, and jury trial. ELITE HEALTH INVESTMENTS, INC.'S COUNTERCLAIM AGAINST THE USA MEDICARE ADVISORS INSURANCE AGENCY LLC COMES NOW, the ELITE HEALTH INVESTMENTS (hereinafter or 'ELITE"), INC. by and through its undersigned counsel, and sue the USA MEDICARE ADVISORS INSURANCE AGENCY LLC (hereinafter or 'UMA"), and in support thereof alleges as follows. 1. This is an action for damages that exceeds Thirty Thousand Dollars ($30,000.00), exclusive of interest, costs, and attorney's fees, and otherwise within the jurisdictional limits of this Court. 2. At all times material hereto, Counter-Defendant was and is a company organized under the laws of the State of Florida with its principal place of business within this county. 3. At all times material hereto, Counter-Plaintiff was and is a corporation incorporated in the State of Florida. 4. Venue is proper in BROWARD COUNTY, because the cause of action accrued in this county. GENERAL ALLEGATIONS 5- On or about October 26, 2020, the Parties executed and entered into a Downline Agent Agreement ("the Agreement"), in which ELITE would sell Medicare Supplemental Plans as a downline agent of UMA. 6. As part of the Agreement, for each Medicare Supplemental Policy ELITE would sell, UMA is to pay ELITE a one-time commission called the "Cash Purchase Price". 7. The Cash Purchase Price section of the Agreement expressly states "For each Medicare Supplement Policy Downline Agent sells, Company shall pay Downline Agent a one-time payment (hereinafter, the "Cash Purchase Price")." 8. Throughout the terms of the Agreement, ELITE completed all conditions precedent of the Agreement, and thus is legally entitled to the one-time commission bonus for each Medicare Supplemental Policy it has sold on behalf of the 9. Furthermore, throughout the terms of the Agreement ELITE sold Medicare Supplemental Policies as an agent for UMA fortheir benefit with the expectation to receive a commission for each sold Policy. 10. UMA has yet to pay a significant portion to of the commission bonuses that are legally owed to ELITE pursuant to the Agreement. 11. To date UMA owes Elite approximately $214,460.00 in outstanding unpaid commissions owed to ELITE pursuant to the Agreement. 12. Furthermore, UMA knowingly and improperly accepted $30,000.00 in bonuses from Aetna Insurance company that was to be paid to ELITE as commission bonuses for Medicare Supplemental Policies sold. 13. On or about February 8, 2021, ELITE notified UMA of its intentions to terminate the Agreement and provided 90 days written notice of termination pursuant to the terms and conditions of the Agreement. 14. On or about February 8, 2021, UMA's counsel expressed that the Agreement was to be terminated effective immediately upon receipt of correspondence from ELITE. 15. Upon termination of the Agreement, ELITE was denied access and locked out of UMA's database which contained previous marketing materials paid for by ELITE. 16. To this date UMA has yet to pay a significant portion of the commission bonuses that are legally owed to ELITE for sold Medicare Supplemental Policies. 17. In addition, ELITE has made good faith efforts to collect these unpaid commission bonuses to them to no avail. 18. This concealment of commissions bonuses legally owed to ELITE constitutes a material breach of the Agreement executed by the Parties' pursuant to the "CASH PURCHASE PRICE" of the Agreement. 19. In view of UMA's clear and unequivocal intention not to comply with the terms of the Parties' Agreement, ELITE has been forced to file the instant counterclaim. COUNT I - UNJUST ENRICHMENT 20. realleges paragraphs 1 through 19. 21. As evidenced by the factual allegation, ELITE conferred a benefit on UMA when ELITE acted as a downline agent and sold Medicare Supplemental Policies for UMA for which they received compensation for. 22. ELITE acting as a downline agent selling Medicare Supplemental Policies for UMA, benefited UMA by reducing the time and effort that was generally required to be expended by UMA to sell their Medicare Supplemental Policies to. 23. Pursuant to the Agreement, UMA would pay a commission to ELITE for all Medicare Supplemental Policies. 24. UMA had actual knowledge of this benefit that by having ELITE has a downline agent selling Medicare Supplemental Policies they would be able to sell more policies, wherein saving time and effort in exchange for a commission for each policy sold by ELITE. 25. By keeping the commissions for themselves and not paying the commission owed to ELITE, UMA voluntarilyaccepted and kept these commissions. 26. Due to UMA's refusal to satisfy the total remaining balance of commissions owed to ELITE, UMA has been unjustly enriched and ELITE has sustained significant monetary damages least in the amount of the total unpaid commissions equaling $214,460.00 legally owed to ELITE. COUNT Il - PROMISSORY ESTOPPEL 27. realleges paragraphs 1 through 19. 28. UMA promised to perform under the material and essential terms memorialized in the Agreement, which includes the payment of a one-time commissions to Elite for each Medicare Supplemental Policies sold. 29. UMA should have reasonably expected its promise to change Elite's behavior in reliance on said promise. 30. As a result of UMA's promise to perform under the Agreement, which it failed to uphold, Elite reasonably relied on said promise to its detriment. 31. More specifically, Elite has sustained significant monetary damages at in the amount of unpaid commissions legally owed to Elite pursuant to the Agreement, which currently amounts to $214,460.00. 32. Injustice can only be avoided if UMA promises to perform under the terms of the Agreement and is enforced. COUNT Ill- BREACH OF CONTRACT OF THE DOWNLINE AGENT AGREEMENT 33. realleges paragraphs 1 through 19. 34. The Agreement constitutes a valid and binding written contract between the Parties. 35. As evidenced by the countersigned Agreement, the Parties has a clear meeting of the minds regarding the material and essential terms of their Agreement and intended to be bound by the terms of the Agreement. 36. ELITE performed all conditions precedent and/or concurrent to the brining of this action. 37. has breached the Agreement by failing and refusing to perform under the terms of the Agreement including, without limitation, by failing to fully and timely make commission payments legally owed to ELITE each Medicare Supplemental Policies sold, which currently amount to approximately $214,460.00 38. Pursuant to the Cash Purchase Price section of the Agreement, UMA was contractually obligated to satisfy all commission bonuses that became legally due to ELITE for each policy sold. 39. UMA's obligation to pay all commissions owed to ELITE in connection to sold Medicare Supplemental Policies was a material and essential term of the Agreement. 40. As a result of UMA's material breach of the Agreement, ELITE has sustained significant monetary damages at least in the amount of total unpaid commission bonuses owed to ELITE, which are currently amount to approximately$214,460.00. 41. Due to the failure of UMA to perform in accordance with the Agreement, ELITE has been irreparably harmed and has been forced to institute this counterclaim to recover the sums owed. COUNT IV - BREACH OF CONTRACT IMPLIED IN FACT 42. realleges paragraphs 1 through 19. 43. As evidenced by the Parties' course of dealing, the Parties had a valid and enforceable implied-in-fact contract with respect to one-time commission payments. 44. During the term of the Agreement, ELITE sold numerous Medicare Supplemental Policies on behalf of UMA which per the Agreement entities ELITE to these commission bonuses. 45. On each occasion, UMA benefited by having ELITE act as an agent selling Medicare Supplemental Policies on their behalf. 46. As such, one of the material terms of the Parties' implied-in-fact contract was that UMA would pay a commission bonus to ELITE for each Medicare Supplemental Policy sold and retained by the insured. 47. ELITE has since made several inquiries for commission bonuses owed to them from UMA to no avail. 48. UMA's failure to pay the total remaining balance of commission bonuses owed to ELITE for sold Medicare Supplemental Policies constitutes a material breach of the Parties' implied-in-fact contract. 49. As a result of UMA's material breach, ELITE has been damaged by being deprived of the value of the commission bonuses owed to them from UMA in the total amount of $214,460.00. COUNT V - VIOLATION OF FLORIDA'S DECEPTIVE AND UNFAIR TRADE PRACTICES ACT 50. realleges paragraphs 1 through 19. 51. UMA engaged in a deceptive and unfair act in the conduct of its trade, which act was the legal cause of actual damage sustained by ELITE. 52. Upon information and belief, UMA actively withheld commission bonuses from ELITE for sold Medicare Supplemental Policies, during the term of the agreement. 53. In additional to amounting to a material breach of the Cash Purchase Price of the Agreement, UMA's conduct also constitute as unconscionable unfair and deceptive trade practice because they withhold the commissions bonuses that were legally owed to ELITE pursuant to the terms of the Agreement. 54. UMA's conduct has irreparably harmed ELITE due to the large amounts of commission bonuses that have remained unpaid in the total amount of $214,460.00. 55. UMA knew and had reason to know its actions would cause, did cause, and/or likely to cause economic injury to ELITE's Business. PRAYER FOR RELIEF WHEREFORE, under Counts I-V of this counterclaim, demands judgment against in its favor for damages together with interest, costs, and attorney's fees, and for such further relief this court deems just and proper. DEMAND FOR JURY TRIAL herein demands a trial by jury of all issues so triable. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via the e-portal to: Veronika Balbuzanova, Esq., Johnson I Dalal, 111 N. Pine Island Road, Suite 103, Plantation, FL 33324; on : August 16,2021 BECK LAW, P.A. 901 Clint Moore Road, Suite C Boca Raton, FL 33487 Tel: (561) 990-1647 Fax: (561) 717-9673 By: /s/ JOSHUA S. BECK, ESQ. Florida Bar No.- 040659 Primary E-Mail: Secondary E-Mail: beck@becklawpa.corn Attorney for