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Filing # 88188022 E-Filed 04/18/2019 12:43:48 PM
IN THE COUNTY COURT OF THE NINETEENTH JUDICIAL CIRCUIT,
IN AND FOR INDIAN RIVER COUNTY, FLORIDA
BARCLAYS BANK DELAWARE, CASE NO: 31-2019-CC-000506
Plaintiff,
Vv.
CHESTER S BRISKE,
Defendant.
DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW, Defendant, and files this Answer and Affirmative Defenses to the
Plaintiff's Complaint as follows:
1 Defendant ADMITS the allegations of paragraphs | and 2.
2 Defendant has insufficient information to either admit or deny the allegations of
paragraphs 3 through 6 and therefore DENIES the same.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE - Failure to State a cause of Action
Defendant moves to dismiss Plaintiff's Cause of Action for unjust enrichment and account
stated for failure to state a cause of action. A claim for equitable relief cannot be based solely
upon a requesting party’s claims that they are deserving. The equitable remedy sought is
founded upon the legal fiction that a contract should be implied in absence of a written contract.
This fiction may not be maintained and the law will not imply a contract where an expressed
contract exists concerning the same subject matter. See Carol Ann May v. Sessum & Mason, PA,
700 So2d 22 (Fla 2° DCA 1994), Corn v, Greco, 694 So.2d 833 (Fla. 2d DCA 1997), Hazen v.
Cobb, 96 Fla 151 (Fla. 1928), and Johny Baron, Jr. v. Ahmed M. Osman a/k/a Ahmen M. Osman,
35 Fla. L Weekly D 1464 (5" DCA 2010).
Plaintiff's Complaint claims the sums due are based upon the use of a credit card. Because
the credit card agreement is a written agreement, this claim is inconsistent with the other
allegations of the complaint and the attachments thereto and Plaintiff has failed to state a cause
of action for unjust enrichment and account stated.
SECOND AFFIRMATIVE DEFENSE - Usury (Common Law)
Plaintiff has sought and continues to seek an amount, which includes interest, which
exceeds the legal rate of interest set forth in Florida Statutes Chap. 687. Plaintiff has failed to
prove they are exempt from Florida’s Usury Laws.
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THIRD AFFIRMATIVE DEFENSE - Statute of Limitation (See F.S.A. §95.11)
The applicable statute of limitations may have run on this action precluding Defendant’s
claim.
FOURTH AFFIRMATIVE DEFENSE - State Forum Selection Clause
Parties may be bound by terms under the debt, which would require the possible usage of
another state’s substantive law to be applied in this action. By litigating within the state of
Florida, the Defendant is not waiving said provision. Plaintiff has not yet produced the
necessary documentation to ascertain if a foreign venue selection clause or substantive law
provision exists covering this action. At a minimum, Florida’s procedural law would apply but
not necessarily Florida’s substantive law, pursuant to provisions under possible applicable
contract provisions if any. Therefore, Defendant is not waving any right as to another state’s
application of substantive law by defending this action.
FIFTH AFFIRMATIVE DEFENSE - Unjust Enrichment
Defendant may have been charged and paid excessive and unauthorized fees and charges
well over the amounts legally incurred in connection with the credit card, which is the subject of
this case. The only reason the credit card stayed active was so that Plaintiff could continue to
charge the Defendant finance charges and for past due, over-the-limit, Payment Protection,
Membership, and Privacy Guard and artificially inflate the balance of the account.
Based upon Plaintiffs violations of the Florida Consumer Collection Practices Act, it is not
entitled to the relief sought herein. In the alternative, Defendant is entitled to a set off as to the
amounts deemed owned, if any, as a result of the imposition of actual and statutory damages.
The subject transaction has been unconscionable and materially unfair to the party of lesser
bargaining power and therefore, unenforceable in the interests of equity. Further, Defendant
should be entitled to a refund for sums paid in excess of the benefit received.
SIXTH AFFIRMATIVE DEFENSE - Unconscionability
The reason the credit card stayed active was so that the Plaintiff could continue to charge
the Defendant financial charges and for past due, over the limit, Payment Protection,
Membership, and Privacy Guard and artificially inflate the balance of the account.
Further, in its efforts to collect the subject debt, the Plaintiff may have caused the
Defendant’s Social Security number to be published in the public domain.
The alleged debt and Plaintiff's means of collecting it are and have been unconscionable
and materially unfair to the party of lesser bargaining power and therefore, unenforceable in the
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interests of equity. Further, Defendant should be entitled to a refund for sums paid in excess of
the benefit received.
SEVENTH AFFIRMATIVE DEFENSE - Account Stated
Plaintiff has failed to plead and provide any evidence as to the elements of account stated
theory of recovery. The Plaintiff failed to attach copies of the account, showing items, time of
accrual of each and amount of each. See Form 1.933, Fla.R.Civ. P, requirements for an account
stated claim. See Mercado v. Lion’s Enterprises, Inc., 800 So2d 753 (Fla. 5" DCA 2001) (For
an account stated to exist there must be an agreement between the parties that a certain balance is
correct and due and an express or implied promise to pay this balance), Merrill-Stevens Dry
Dock Company v. “Corniche Express”, 400 So2d 1286 ( Fla. 3 DCA 1981) (judgment for
defendant where there was a dispute as to the performance, the value, and whether the services,
if performed, were authorized).
Although the failure to object to a creditor’s periodic billing may establish an account
stated, there can be no liability if there has been no mutual agreement. See Recreation Corp of
America v. Jack Drury & Associates, Inc., 235 So2d 49 (Fla App. 4 Dist. 1970). Therefore, the
presentation of a claim and that an account has been stated is invalid. See McKissick v. Bilger,
480 So2d 211, (11 Fla. L. Weekly 42 (Fla. App. 1“ Dist., 1985), and Page Avjet Corp v.
Cosgrove Aircraft Service, 546 So2d 16, 18 (Fla. 3° DCA 1989).
There has been no mutual agreement to pay. Plaintiff has alleged there was an agreement.
The documents attached to the Complaint for Damages do not support this allegation. See FDIC
y. Brodie, 602 So2d 1358 (Fla App. 3" Dist., 1992). There can be no liability on an account
stated if there has been no mutual agreement to pay a certain amount in satisfaction of an
outstanding debt, Dutch Inns of America v. Jenkins, 301 So2d 119 (Fla. 3° DCA 1974).
Therefore, Plaintiff has failed to state a cause of action for an account stated.
EIGHTH AFFIRMATIVE DEFENSE - Inconsistent Theories of Recovery
Plaintiff's theories of recovery in their Complaint are inconsistent and cannot be plead
pursuant to Florida case law.
NINTH AFFIRMATIVE DEFENSE
The Defendant hereby asserts the affirmative defense of lack of licensure. Florida law
specifically and unequivocally states in Fla. Stat §559.553, “after January 1, 1994, no person
shall engage in business in this state as a consumer collection agency or continue to do business
in this state as a consumer collection agency without first registering in accordance with this
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pare, and thereafter maintaining a valid registration.” In March 2010, the Eleventh Circuit
unequivocally pronounced that the failure to register oneself in the State of Florida as a
“Consumer Collection Agency” constitutes a valid basis for an alleged violation of federal law,
See LeBlanc v. Unifund CCR Partners, 601 F. 3d 1185(11" Cir. March 30, 2010) (“We therefore
hold that a violation of the FCCPA for failure to register may, in fact, support a federal cause of
action under §1692e(5) of the FDCPA for threatening to take an action it could not legally take”)
(emphasis added). See Fla. Stat. §559.785 (stating that it is a misdemeanor for “any person not
exempt from registering to engage in collecting consumer debts in this state without first
registering”). The Defendant maintains that the pending action is void ab initio and should be
dismissed as this Court should not lend its aid to the enforcement of an action that is in fact
barred by a Florida regulatory measure See generally, Cooper v. Paris, 413, So2d 772, 773 (Fla.
1" DCA 1982).
WHEREFORE, the Defendant prays this Honorable Court award judgment for the
Defendant, award reasonable attorney’s fees pursuant to Fla. Stat. Ann. §57.105 as well as any
and all applicable sections, and any and all potential applicable contract provisions and any such
other and further relief as may be just and proper.
RESPECTFULLY SUBMITTED April 18, 2019.
ANDREW C. STEELE, P.L.
/s/ Andrew C. Steele
ANDREW C. STEELE, ESQ. FBN: 017475
321.269.2882 Attorney for Defendant
ASteele@AndrewStecleLaw.com; 1625 S. Washington Avenue, Suite D
Nadia@AndrewSteeleLaw.com Titusville, FL 32780
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been furnished via E-service to all
parties listed in the Florida Courts E-Filing Portal on the date signed above.
By: /s/ ANDREW C. STEELE
Andrew C. Steele, Esquire
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Preview
Filing # 88188022 E-Filed 04/18/2019 12:43:48 PM IN THE COUNTY COURT OF THE NINETEENTH JUDICIAL CIRCUIT, IN AND FOR INDIAN RIVER COUNTY, FLORIDA BARCLAYS BANK DELAWARE, CASE NO: 31-2019-CC-000506 Plaintiff, Vv. CHESTER S BRISKE, Defendant. DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES COMES NOW, Defendant, and files this Answer and Affirmative Defenses to the Plaintiff's Complaint as follows: 1 Defendant ADMITS the allegations of paragraphs | and 2. 2 Defendant has insufficient information to either admit or deny the allegations of paragraphs 3 through 6 and therefore DENIES the same. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE - Failure to State a cause of Action Defendant moves to dismiss Plaintiff's Cause of Action for unjust enrichment and account stated for failure to state a cause of action. A claim for equitable relief cannot be based solely upon a requesting party’s claims that they are deserving. The equitable remedy sought is founded upon the legal fiction that a contract should be implied in absence of a written contract. This fiction may not be maintained and the law will not imply a contract where an expressed contract exists concerning the same subject matter. See Carol Ann May v. Sessum & Mason, PA, 700 So2d 22 (Fla 2° DCA 1994), Corn v, Greco, 694 So.2d 833 (Fla. 2d DCA 1997), Hazen v. Cobb, 96 Fla 151 (Fla. 1928), and Johny Baron, Jr. v. Ahmed M. Osman a/k/a Ahmen M. Osman, 35 Fla. L Weekly D 1464 (5" DCA 2010). Plaintiff's Complaint claims the sums due are based upon the use of a credit card. Because the credit card agreement is a written agreement, this claim is inconsistent with the other allegations of the complaint and the attachments thereto and Plaintiff has failed to state a cause of action for unjust enrichment and account stated. SECOND AFFIRMATIVE DEFENSE - Usury (Common Law) Plaintiff has sought and continues to seek an amount, which includes interest, which exceeds the legal rate of interest set forth in Florida Statutes Chap. 687. Plaintiff has failed to prove they are exempt from Florida’s Usury Laws. -lof4- THIRD AFFIRMATIVE DEFENSE - Statute of Limitation (See F.S.A. §95.11) The applicable statute of limitations may have run on this action precluding Defendant’s claim. FOURTH AFFIRMATIVE DEFENSE - State Forum Selection Clause Parties may be bound by terms under the debt, which would require the possible usage of another state’s substantive law to be applied in this action. By litigating within the state of Florida, the Defendant is not waiving said provision. Plaintiff has not yet produced the necessary documentation to ascertain if a foreign venue selection clause or substantive law provision exists covering this action. At a minimum, Florida’s procedural law would apply but not necessarily Florida’s substantive law, pursuant to provisions under possible applicable contract provisions if any. Therefore, Defendant is not waving any right as to another state’s application of substantive law by defending this action. FIFTH AFFIRMATIVE DEFENSE - Unjust Enrichment Defendant may have been charged and paid excessive and unauthorized fees and charges well over the amounts legally incurred in connection with the credit card, which is the subject of this case. The only reason the credit card stayed active was so that Plaintiff could continue to charge the Defendant finance charges and for past due, over-the-limit, Payment Protection, Membership, and Privacy Guard and artificially inflate the balance of the account. Based upon Plaintiffs violations of the Florida Consumer Collection Practices Act, it is not entitled to the relief sought herein. In the alternative, Defendant is entitled to a set off as to the amounts deemed owned, if any, as a result of the imposition of actual and statutory damages. The subject transaction has been unconscionable and materially unfair to the party of lesser bargaining power and therefore, unenforceable in the interests of equity. Further, Defendant should be entitled to a refund for sums paid in excess of the benefit received. SIXTH AFFIRMATIVE DEFENSE - Unconscionability The reason the credit card stayed active was so that the Plaintiff could continue to charge the Defendant financial charges and for past due, over the limit, Payment Protection, Membership, and Privacy Guard and artificially inflate the balance of the account. Further, in its efforts to collect the subject debt, the Plaintiff may have caused the Defendant’s Social Security number to be published in the public domain. The alleged debt and Plaintiff's means of collecting it are and have been unconscionable and materially unfair to the party of lesser bargaining power and therefore, unenforceable in the -2o0f4- interests of equity. Further, Defendant should be entitled to a refund for sums paid in excess of the benefit received. SEVENTH AFFIRMATIVE DEFENSE - Account Stated Plaintiff has failed to plead and provide any evidence as to the elements of account stated theory of recovery. The Plaintiff failed to attach copies of the account, showing items, time of accrual of each and amount of each. See Form 1.933, Fla.R.Civ. P, requirements for an account stated claim. See Mercado v. Lion’s Enterprises, Inc., 800 So2d 753 (Fla. 5" DCA 2001) (For an account stated to exist there must be an agreement between the parties that a certain balance is correct and due and an express or implied promise to pay this balance), Merrill-Stevens Dry Dock Company v. “Corniche Express”, 400 So2d 1286 ( Fla. 3 DCA 1981) (judgment for defendant where there was a dispute as to the performance, the value, and whether the services, if performed, were authorized). Although the failure to object to a creditor’s periodic billing may establish an account stated, there can be no liability if there has been no mutual agreement. See Recreation Corp of America v. Jack Drury & Associates, Inc., 235 So2d 49 (Fla App. 4 Dist. 1970). Therefore, the presentation of a claim and that an account has been stated is invalid. See McKissick v. Bilger, 480 So2d 211, (11 Fla. L. Weekly 42 (Fla. App. 1“ Dist., 1985), and Page Avjet Corp v. Cosgrove Aircraft Service, 546 So2d 16, 18 (Fla. 3° DCA 1989). There has been no mutual agreement to pay. Plaintiff has alleged there was an agreement. The documents attached to the Complaint for Damages do not support this allegation. See FDIC y. Brodie, 602 So2d 1358 (Fla App. 3" Dist., 1992). There can be no liability on an account stated if there has been no mutual agreement to pay a certain amount in satisfaction of an outstanding debt, Dutch Inns of America v. Jenkins, 301 So2d 119 (Fla. 3° DCA 1974). Therefore, Plaintiff has failed to state a cause of action for an account stated. EIGHTH AFFIRMATIVE DEFENSE - Inconsistent Theories of Recovery Plaintiff's theories of recovery in their Complaint are inconsistent and cannot be plead pursuant to Florida case law. NINTH AFFIRMATIVE DEFENSE The Defendant hereby asserts the affirmative defense of lack of licensure. Florida law specifically and unequivocally states in Fla. Stat §559.553, “after January 1, 1994, no person shall engage in business in this state as a consumer collection agency or continue to do business in this state as a consumer collection agency without first registering in accordance with this -30f4- pare, and thereafter maintaining a valid registration.” In March 2010, the Eleventh Circuit unequivocally pronounced that the failure to register oneself in the State of Florida as a “Consumer Collection Agency” constitutes a valid basis for an alleged violation of federal law, See LeBlanc v. Unifund CCR Partners, 601 F. 3d 1185(11" Cir. March 30, 2010) (“We therefore hold that a violation of the FCCPA for failure to register may, in fact, support a federal cause of action under §1692e(5) of the FDCPA for threatening to take an action it could not legally take”) (emphasis added). See Fla. Stat. §559.785 (stating that it is a misdemeanor for “any person not exempt from registering to engage in collecting consumer debts in this state without first registering”). The Defendant maintains that the pending action is void ab initio and should be dismissed as this Court should not lend its aid to the enforcement of an action that is in fact barred by a Florida regulatory measure See generally, Cooper v. Paris, 413, So2d 772, 773 (Fla. 1" DCA 1982). WHEREFORE, the Defendant prays this Honorable Court award judgment for the Defendant, award reasonable attorney’s fees pursuant to Fla. Stat. Ann. §57.105 as well as any and all applicable sections, and any and all potential applicable contract provisions and any such other and further relief as may be just and proper. RESPECTFULLY SUBMITTED April 18, 2019. ANDREW C. STEELE, P.L. /s/ Andrew C. Steele ANDREW C. STEELE, ESQ. FBN: 017475 321.269.2882 Attorney for Defendant ASteele@AndrewStecleLaw.com; 1625 S. Washington Avenue, Suite D Nadia@AndrewSteeleLaw.com Titusville, FL 32780 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been furnished via E-service to all parties listed in the Florida Courts E-Filing Portal on the date signed above. By: /s/ ANDREW C. STEELE Andrew C. Steele, Esquire -40f4-