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Filing # 132834358 E-Filed 08/17/2021 12:55:16 PM
IN THE COUNTY COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO.: 2021 SC 003946 SP
CITIBANK N.A.,
Plaintiff,
v.
ROBERT O LINDBLAD,
Defendant.
/
DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW, Defendant, ROBERT O LINDBLAD, files this Answer and Affirmative
Defenses to Plaintiff's Complaint and states:
1. Admit.
2 Denied. Demand strict proof thereof.
3 Denied. Demand strict proof thereof.
4. Denied. Demand strict proof thereof.
5
Denied. Demand strict proof thereof.
FIRST AFFIRMATIVE DEFENSE
USURY
1. Plaintiffs Complaint asserting a cause of action for Account Stated is barred by the defense
of usury.
2. Plaintiff attached to its Complaint what it alleged was an account statement.
3. Chapter 687.02, Florida Statutes, governs the maximum allowable interest for contracts for
the payment of interest upon any loan, advance of money, line of credit, or forbearance to
enforce the collection of any debt, or upon any obligation whatever. The current maximum
allowed is 18 percent per annum.. The account statement attached calls for interest rates as high as 29.99%,
SECOND AFFIRMATIVE DEFENSE
FAILURE TO STATE A CAUSE OF ACTION FOR ACCOUNT STATED
. In order to establish a claim for account stated, Plaintiff is required to prove that there was
“an agreement between persons who have had previous transactions, fixing the amount due
in respect of such transactions, and promising payment.” Burt v. Hudson & Keyse, LLC,
Etc., 138 So. 3d 1193, 1196 (Fla. App., 2014) (citing Farley v. Chase Bank, U.S.A., N.A.,
37 So. 3d 936, 937 (Fla. 4th DCA 2010)) (quoting Martyn v. Amold, 18 So. 791, 793 (Fla.
1895) (citation omitted)). The agreement does not need to be explicit. When a debtor has
been issued an account statement and the debtor fails to object in a reasonable time, it is
presumed that the account is correct and the debtor is liable. Jd.
. The account statement attached to the Complaint was not rendered to the Defendant.
. Defendant did not receive the account statement attached to the Complaint.
THIRD AFFIRMATIVE DEFENSE
FAILURE TO ATTACH THE CONTRACT
. The account statement attached to the Complaint contains a balance that likely resulted
from additional fees such as late fees, interest fees, and penalty fees. Those complex
calculations should have been disclosed in the Credit Card Agreement. While a “claim for
an account stated is based on the agreement of the parties to pay the amount due upon the
accounting, and not on any written instrument,” Farley v. Chase Bank, U.S.A., N.A., 37 So.
3d 936, 937, (Fla. 4th DCA 2010), the amount due here is based on the debtor’s failure to
pay under the credit card contract. Simply put, if there had been no credit card contract, the
amount due would not have accrued in the first place. The credit card contract and theaccount stated cause of action are therefore inextricably intertwined ... . Bushnell v.
Portfolio Recovery Associates, LLC, 43 Fla. L. Weekly D2144a (2018).
9. Proof of an account stated requires an express or implied agreement between the parties
that a specified balance is correct and due and an express or implied promise to pay this
balance. Farley, 37 So. 3d at 937, Citing to Merrill-Stevens Dry Dock Co. y. Corniche
Express, 400 So.2d 1286 (Fla. 3d DCA 1981). The cause of action is often based upon an
implied promise. Farley, 37 So. 3d at 937. Where there is an express agreement, the law
will not imply one. Jacksonville American Publishing Co. v. Jacksonville Paper Co., 143
Fla. 835, 197 So. 672 (1940); Hazen v. Cobb-Vaughan Motor Co., 96 Fla. 151, 117 So.
853 (1928). Plaintiff cannot pursue an equitable theory, such as unjust enrichment or
quantum meruit, to prove entitlement to relief if an express contract exists. See, e.g.,
Kovtan v. Frederiksen, 449 So.2d 1, 1 (Fla. 2d DCA 1984) ("It is well settled that the law
will not imply a contract where an express contract exists concerning the same subject
matter."); In re Estate of Lonstein, 433 So.2d 672, 674 (Fla. 4th DCA 1983).
10. Plaintiff failed to attach a copy of the contract.
WHEREFORE, Defendant, ROBERT O LINDBLAD, respectfully requests the Court grant
judgment in favor of the Defendant and for all other relief deemed just including an award of
attorney’s fees and costs pursuant to Florida Statutes 57.105(7).
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
on August 17, 2021, via filing with the Florida Courts E-Filing Portal to the following: Drew
Linen, Esq. at service@raslavrar.com.
/s/ Sarah EF. Flores, Esq.
Sarah E. Flores, Esq.
Florida Bar No.: 997565931 Brick Court, Suite 166
Winter Park, FL 32792
Tel.: (407) 672-1260
E-service: Eserve@floridadebtdefender.com
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Filing # 132834358 E-Filed 08/17/2021 12:55:16 PM IN THE COUNTY COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO.: 2021 SC 003946 SP CITIBANK N.A., Plaintiff, v. ROBERT O LINDBLAD, Defendant. / DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES COMES NOW, Defendant, ROBERT O LINDBLAD, files this Answer and Affirmative Defenses to Plaintiff's Complaint and states: 1. Admit. 2 Denied. Demand strict proof thereof. 3 Denied. Demand strict proof thereof. 4. Denied. Demand strict proof thereof. 5 Denied. Demand strict proof thereof. FIRST AFFIRMATIVE DEFENSE USURY 1. Plaintiffs Complaint asserting a cause of action for Account Stated is barred by the defense of usury. 2. Plaintiff attached to its Complaint what it alleged was an account statement. 3. Chapter 687.02, Florida Statutes, governs the maximum allowable interest for contracts for the payment of interest upon any loan, advance of money, line of credit, or forbearance to enforce the collection of any debt, or upon any obligation whatever. The current maximum allowed is 18 percent per annum.. The account statement attached calls for interest rates as high as 29.99%, SECOND AFFIRMATIVE DEFENSE FAILURE TO STATE A CAUSE OF ACTION FOR ACCOUNT STATED . In order to establish a claim for account stated, Plaintiff is required to prove that there was “an agreement between persons who have had previous transactions, fixing the amount due in respect of such transactions, and promising payment.” Burt v. Hudson & Keyse, LLC, Etc., 138 So. 3d 1193, 1196 (Fla. App., 2014) (citing Farley v. Chase Bank, U.S.A., N.A., 37 So. 3d 936, 937 (Fla. 4th DCA 2010)) (quoting Martyn v. Amold, 18 So. 791, 793 (Fla. 1895) (citation omitted)). The agreement does not need to be explicit. When a debtor has been issued an account statement and the debtor fails to object in a reasonable time, it is presumed that the account is correct and the debtor is liable. Jd. . The account statement attached to the Complaint was not rendered to the Defendant. . Defendant did not receive the account statement attached to the Complaint. THIRD AFFIRMATIVE DEFENSE FAILURE TO ATTACH THE CONTRACT . The account statement attached to the Complaint contains a balance that likely resulted from additional fees such as late fees, interest fees, and penalty fees. Those complex calculations should have been disclosed in the Credit Card Agreement. While a “claim for an account stated is based on the agreement of the parties to pay the amount due upon the accounting, and not on any written instrument,” Farley v. Chase Bank, U.S.A., N.A., 37 So. 3d 936, 937, (Fla. 4th DCA 2010), the amount due here is based on the debtor’s failure to pay under the credit card contract. Simply put, if there had been no credit card contract, the amount due would not have accrued in the first place. The credit card contract and theaccount stated cause of action are therefore inextricably intertwined ... . Bushnell v. Portfolio Recovery Associates, LLC, 43 Fla. L. Weekly D2144a (2018). 9. Proof of an account stated requires an express or implied agreement between the parties that a specified balance is correct and due and an express or implied promise to pay this balance. Farley, 37 So. 3d at 937, Citing to Merrill-Stevens Dry Dock Co. y. Corniche Express, 400 So.2d 1286 (Fla. 3d DCA 1981). The cause of action is often based upon an implied promise. Farley, 37 So. 3d at 937. Where there is an express agreement, the law will not imply one. Jacksonville American Publishing Co. v. Jacksonville Paper Co., 143 Fla. 835, 197 So. 672 (1940); Hazen v. Cobb-Vaughan Motor Co., 96 Fla. 151, 117 So. 853 (1928). Plaintiff cannot pursue an equitable theory, such as unjust enrichment or quantum meruit, to prove entitlement to relief if an express contract exists. See, e.g., Kovtan v. Frederiksen, 449 So.2d 1, 1 (Fla. 2d DCA 1984) ("It is well settled that the law will not imply a contract where an express contract exists concerning the same subject matter."); In re Estate of Lonstein, 433 So.2d 672, 674 (Fla. 4th DCA 1983). 10. Plaintiff failed to attach a copy of the contract. WHEREFORE, Defendant, ROBERT O LINDBLAD, respectfully requests the Court grant judgment in favor of the Defendant and for all other relief deemed just including an award of attorney’s fees and costs pursuant to Florida Statutes 57.105(7). CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished on August 17, 2021, via filing with the Florida Courts E-Filing Portal to the following: Drew Linen, Esq. at service@raslavrar.com. /s/ Sarah EF. Flores, Esq. Sarah E. Flores, Esq. Florida Bar No.: 997565931 Brick Court, Suite 166 Winter Park, FL 32792 Tel.: (407) 672-1260 E-service: Eserve@floridadebtdefender.com