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Filing # 182537515 E-Filed 09/25/2023 03:34:17 PM
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
BANK OF AMERICA, N.A.,
Plaintiff,
vs. Case No. 23-001073-CI
SCOTT SHAPIRO, UNKNOWN SPOUSE
OF SCOTT SCHAPIRO; UNKNOWN
TENANT #1; ANY AND ALL UNKNOWN
PARTIES CLAIMING BY, THROUGH,
UNDER AND AGAINST THE NAMED
INDIVIDUAL DEFENDANT(S) WHO
ARE NOT KNOWN TO BE DEAD OR
ALIVE, WHETHER UNKNOWN PARTIES
MAY CLAIM AN INTEREST AS
SPOUSES, HEIRS, DEVISEES,
GRANTEES, OR OTHER CLAIMANTS,
Defendant(s).
/
DEFENDANT SCOTT SHAPIRO'S RESPONSE TO
PLAINTIFF’S MOTION TO DISMISS
Defendant SCOTT SHAPIRO, by his undersigned counsel, responds to Plaintiff BANK
OF AMERICA, N.A.'s MOTION to DISMISS and states as follows:
GENERAL ALLEGATIONS
1 The mortgage and security agreement that is the subject of this action has been
characterized by gross mismanagement, mishandling misapplication of funds,
mischaracterization of loan status and outright fraud and misrepresentation.
Specifically; CounterDefendant has repeatedly mischaracterized the default and
foreclosure status of the subject Note and Mortgage and prevented
Defendant/CounterPlaintiff from performing his payment obligations.
***ELECTRONICALLY FILED 09/25/2023 03:34:17 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***
In approximately March 2018 Bank of America placed an incorrect coding status on the
loan that is the subject of this action.
The loan was mischaracterized by Bank of America as “being in foreclosure”.
On or about October 19, 2020, Mr. Shapiro called Bank of America and was told the
subject loan was “in foreclosure”, that “the property had been sold at judicial auction”,
that “there was no longer any right to redeem the property” and that “he shouldn’t be
living in the house”. Bank of America further told Mr. Shapiro that “the loan had been
removed from Bank of America’s servicing platform”.
At or before this time period, Bank of America suppressed Mr. Shapiro’s mortgage
account which resulted in the cessation of monthly mortgage statements being sent to Mr.
Shapiro.
During the telephone conference, Bank of America informed Mr. Shapiro that the gross
mishandling of the mortgage account had “just come to their attention. ..because of the
code and everything was suppressed”.
During the telephone conference, Bank of America further informed Mr. Shapiro that
“when the loan was miscoded, it suppressed statements and it suppressed us (Bank of
America) from making payments to the taxing authority and to the insurance”.
Finally, in order to resolve the account issues, Bank of America stated, “At this point lets
discuss and lets see what we can do to try and get this resolved...At this point we would
like to bring you current. We will take the loss of the money that is owed that you were
supposed to continue to pay, but you could not pay because of the code that was on the
account, it wouldn’t let you pay. So we will take the loss of about $76,000.00 to bring you
current, we will remove any negative credit reporting from March 2018 to present and we
will adjust your principal balance.”
10. The conversation was concluded with Bank of America agreeing to put the above offer in
writing to be reviewed by Mr. Shapiro so the account could be placed back on track.
11 That event never occurred and ultimately led to the instant lawsuit.
12 From tese facts, Defendant has sought relief under theories of Breach of Contract, Breach
of Duty of Good Faith, FDUPTA Violations, FCCPA Violations, FDCPA Violations,
Civil RICO Violations, Breach of Fiduciary, Equitable Estoppel and Equitable
Accounting.
13 In Florida, a pleading which sets forth a claim for relief must contain allegations of fact
sufficient to show the jurisdiction of the Court. Gannett v. King 108 So.2d 299, 301 (Fla.
2"4 DCA 1959). Counterclaimant has satisfaction by filing Counterclaims inextricably
intertwined with the underlying foreclosure action.
14 Florida is a fact-pleading jurisdiction. Continental Baking Co. v. Vincent, 634 So.2d 242,
244 (Fla 5" DCA 1994); see also Goldschmidt v. Holman 571 So.2d 422, 423-424 (Fla.
1990).
15 Florida Rule of Civil Procedure 1.110 (b)(2) requires that a pleading that sets form a claim
for relief... must state a cause of action and shall contain a short and plain statement of the
ultimate facts showing that the pleader is entitled for relief. Florida’s pleading rule forces
counsel to recognize elements of their cause of action and determine whether they have or
can develop facts necessary to support it. Continental Baking at 244.
16. Furthermore, at the outset of a suit, litigants must state their pleadings with sufficient
particularity for a defense to be prepared. Arky, Freed, Stearns, Watson, Greer, Weaver
and Harrius, P.A. v. Bowmar Instrument Corp., 537 So.2d 561 (Fla. 1988) E.g., Horowitz
v. Lasky, 855 So.2d 169, 172 (Fla. 5“ DCA (2003).
17 In addition to the jurisdictional statement and the relief sought, the Complaint must
contain a plain statement of ultimate facts establishing entitlement to relief. Pratus v. City
of Naples, 807 So.2d 795, 796 (Fla. 2"! DCA 2002).
18. CounterPlaintiff
has plead a series of ultimate facts demonstrating the gross
mismanagement which occurred during the history of this loan and factually incorporated
those facts into nine (9) specific causes of action recognized in Florida: (1) Breach of
Contract; (2) Breach of Duty of Good Faith; (3) FDUPTA Violations; (4) FCCPA
Violations; (5) FDCPA Violations; (6) Florida Civil RICO; (7); Breach of Fiduciary Duty;
(8) Equitable Accounting; and (9) Equitable Accounting.
COUNT I - BREACH OF CONTRACT
19 The elements of a cause of action for Breach of Contract are: (1) existence of a contract;
breach of the contract; and damages resulting from the breach. Ferguson Enterprises v.
Astro Air Conditioning and Heating, 137 So.3d 613, 615 (Fla. 2"! DCA 2014.
20. CounterPlaintiff
has met this pleading burden.
COUNT II __ BREACH OF DUTY OF GOOD FAITH
21 The elements ofa cause of action for Breach of Duty of Good Faith are: (1) the Plaintiff
and Defendant are parties to a written contract; (2) the contract is ambiguous about the
permissibility or scope ofthe conduct in question; (3) the Defendant, through a conscious
and deliberate act , fails or refuses to discharge contractual responsibilities, which unfairly
frustrates the contract’s purpose and disappoints the Claimants expectations; the
Defendant’s breach deprives the Claimant of the contract’s benefits; and (5) the Claimant
suffers damages. Cox v. Intermodal, Inc. 732 So.2d 1092, 10097 (Fla. It DCA 1999).
22. CounterPlaintiff
has met this pleading burden.
COUNT II - FDUPTA VIOLATIONS
23 A consumer claim for damages under FDUPTA has three elements (1) a deceptive act or
unfair practice; (2) causation; and (3) actual damages. See, Rollins, Inc. v. Butland, 951
So0.2d860, 869 (Fla. 2"¢ DCA 2006).
24 CounterPlaintiff
has met this pleading burden.
COUNT IV —- FCCPA VIOLATIONS
25 The elements for a cause of action under the FCCPA are: (1) Defendant is a “person”; (2)
Claimant is “consumer”; (3) violation ofthe prohibited acts; and (4) statutory damages.
See, Florida Statute Section 559.77(2).
26. CounterPlaintiff
has met this pleading burden.
COUNT V - FDCPA VIOLATIONS
27. The elements for a cause of action under the FDCPA are: (1) Defendant is a “debt
collector”; (2) Claimant is “consumer”; (3) violation of the prohibited acts; and (4)
statutory damages. See, 15 U.S.C. Section 1692.
28, CounterPlaintiff
has met this pleading burden.
COUNT VI- FLORIDA CIVIL RICO
29. The elements of a cause action for Civil RICO are: (1) the existence of an enterprise ,
which the Defendant was employed by or associated with in committing the crimes; (2) A
pattern of racketeering activity; and (3) at least two incidents of racketeering or
racketeering conduct that have the same or similar intents, results, accomplices, victims or
methods of commission , or are otherwise interrelated by distinguishing characteristics
and are not isolated incidents. Shimek v. State , 610 So.2d 632, 634-635(Fla 1 DCA
1992.
30. CounterPlaintiff
has met this pleading burden.
COUNT VII- BREACH OF FIDUCIARY DUTY
31 The elements ofa cause of action for Breach Fiduciary Duty are: (1) the existence of a
fiduciary duty; breach of that duty; and damages flowing from the breach. Rocco v. Glenn,
Rasmussen, Fogarty & Hooker, P.A. 32 So.3d 111, 116 (Fla. 2"! DCA 2009.
32. CounterPlaintiff
has met this pleading burden.
COUNT VIII-EQUITABLE ACCOUNTING
33 The elements for a cause of action for Equitable Accounting are: (1) Equity has
jurisdiction to entertain an action for an accounting where a confidential of fiduciary
relationship is shown to exist. Cushman v. Shubert, 110 So.2™! 703, 705 (Fla. 2" DCA
1959).
34, CounterPlaintiff
has met this pleading burden.
COUNT VIHI-EQUITABLE ESTOPPEL
35. The elements for a cause of action for Equitable Estoppel are: (the party against who the
estoppel is sought must have made a representation about material fact that is contrary to a
position that it later asserts; (2) the party claiming estoppel must have relied on that
representation; and (3) the party seeking estoppel must have changed his position to his
detriment based on the representation and his reliance on it. Winand v. Weber, 979 So.2d
269 (Fla. 2"! DCA 2007).
36 CounterPlaintiff
has met this pleading burden.
WHEREFORE, Defendant/CounterPlaintiff SCOTT SHAPIRO request this Court deny
Plaintiff's Motion to Dismiss and grant such other and further relief as this Court deems
fit.
Dated: September 25, 2023 Respectfully submitted,
/s/ Jeffrey C. Hakanson
JEFFREY C. HAKANSON, ESQUIRE
Florida Bar No. 0061328
Primary E-mail: jeff@mcintyrefirm.com
Secondary E-mail:
jchservice@mcintyrefirm.com
McIntyre Thanasides Bringgold Elliott
Grimaldi Guito & Matthews, P.A.
500 E. Kennedy Blvd., Suite 200
Tampa, FL 33602
813-223-0000 Tel.
Attorneys for Defendant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to
all counsel of record through the Florida E-Portal to all counsel of record and by regular U.S.
Mail to all Defendants on the attached Service List, on this 25 day of September, 2023.
/s/ Jeffrey C. Hakanson
JEFFREY C. HAKANSON, ESQUIRE
Florida Bar No. 0061328
Primary E-mail: Jeff@mcintyrefirm.com
Secondary E-mail: JCHservice@mcintyrefirm.com
McIntyre Thanasides Bringgold Elliott
Grimaldi Guito & Matthews, P.A.
500 E. Kennedy Blvd., Suite 200
Tampa, Florida 33602
813-223-0000 Tel.; 813-899-6069 Fax
Attorneys for Defendant
SERVICE LIST
JEFFREY C. HAKANSON, ESQ.
MCINTYRE THANASIDES
ATTORNEY FOR DEFENDANT
500 E. KENNEDY BLVD., SUITE 200
TAMPA, FL 33602
jeff@mcintyrefirm.com
jchservice@mcintyrefirm.com
STEPHEN M. WEINSTEIN, ESQ.
TROMBERG, MORRIS & POULIN, PLLC
ATTORNEY FOR PLAINTIFF
1515 SOUTH FEDERAL HWY, SUITE 100
BOCA RATON, FL 33432
eservice@tmppllc.com
ARIEL ACEVEDO, ESQ.
LIEBLER, GONZALEZ & PORTUONDO
CO-COUNSEL FOR PLAINTIFF
COURTHOUSE TOWER - 25! FLOOR
44 WEST FLAGLER STREET
MIAML, FL 33130
service@lgplaw.com
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Filing # 182537515 E-Filed 09/25/2023 03:34:17 PM IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA BANK OF AMERICA, N.A., Plaintiff, vs. Case No. 23-001073-CI SCOTT SHAPIRO, UNKNOWN SPOUSE OF SCOTT SCHAPIRO; UNKNOWN TENANT #1; ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER AND AGAINST THE NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES, OR OTHER CLAIMANTS, Defendant(s). / DEFENDANT SCOTT SHAPIRO'S RESPONSE TO PLAINTIFF’S MOTION TO DISMISS Defendant SCOTT SHAPIRO, by his undersigned counsel, responds to Plaintiff BANK OF AMERICA, N.A.'s MOTION to DISMISS and states as follows: GENERAL ALLEGATIONS 1 The mortgage and security agreement that is the subject of this action has been characterized by gross mismanagement, mishandling misapplication of funds, mischaracterization of loan status and outright fraud and misrepresentation. Specifically; CounterDefendant has repeatedly mischaracterized the default and foreclosure status of the subject Note and Mortgage and prevented Defendant/CounterPlaintiff from performing his payment obligations. ***ELECTRONICALLY FILED 09/25/2023 03:34:17 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY*** In approximately March 2018 Bank of America placed an incorrect coding status on the loan that is the subject of this action. The loan was mischaracterized by Bank of America as “being in foreclosure”. On or about October 19, 2020, Mr. Shapiro called Bank of America and was told the subject loan was “in foreclosure”, that “the property had been sold at judicial auction”, that “there was no longer any right to redeem the property” and that “he shouldn’t be living in the house”. Bank of America further told Mr. Shapiro that “the loan had been removed from Bank of America’s servicing platform”. At or before this time period, Bank of America suppressed Mr. Shapiro’s mortgage account which resulted in the cessation of monthly mortgage statements being sent to Mr. Shapiro. During the telephone conference, Bank of America informed Mr. Shapiro that the gross mishandling of the mortgage account had “just come to their attention. ..because of the code and everything was suppressed”. During the telephone conference, Bank of America further informed Mr. Shapiro that “when the loan was miscoded, it suppressed statements and it suppressed us (Bank of America) from making payments to the taxing authority and to the insurance”. Finally, in order to resolve the account issues, Bank of America stated, “At this point lets discuss and lets see what we can do to try and get this resolved...At this point we would like to bring you current. We will take the loss of the money that is owed that you were supposed to continue to pay, but you could not pay because of the code that was on the account, it wouldn’t let you pay. So we will take the loss of about $76,000.00 to bring you current, we will remove any negative credit reporting from March 2018 to present and we will adjust your principal balance.” 10. The conversation was concluded with Bank of America agreeing to put the above offer in writing to be reviewed by Mr. Shapiro so the account could be placed back on track. 11 That event never occurred and ultimately led to the instant lawsuit. 12 From tese facts, Defendant has sought relief under theories of Breach of Contract, Breach of Duty of Good Faith, FDUPTA Violations, FCCPA Violations, FDCPA Violations, Civil RICO Violations, Breach of Fiduciary, Equitable Estoppel and Equitable Accounting. 13 In Florida, a pleading which sets forth a claim for relief must contain allegations of fact sufficient to show the jurisdiction of the Court. Gannett v. King 108 So.2d 299, 301 (Fla. 2"4 DCA 1959). Counterclaimant has satisfaction by filing Counterclaims inextricably intertwined with the underlying foreclosure action. 14 Florida is a fact-pleading jurisdiction. Continental Baking Co. v. Vincent, 634 So.2d 242, 244 (Fla 5" DCA 1994); see also Goldschmidt v. Holman 571 So.2d 422, 423-424 (Fla. 1990). 15 Florida Rule of Civil Procedure 1.110 (b)(2) requires that a pleading that sets form a claim for relief... must state a cause of action and shall contain a short and plain statement of the ultimate facts showing that the pleader is entitled for relief. Florida’s pleading rule forces counsel to recognize elements of their cause of action and determine whether they have or can develop facts necessary to support it. Continental Baking at 244. 16. Furthermore, at the outset of a suit, litigants must state their pleadings with sufficient particularity for a defense to be prepared. Arky, Freed, Stearns, Watson, Greer, Weaver and Harrius, P.A. v. Bowmar Instrument Corp., 537 So.2d 561 (Fla. 1988) E.g., Horowitz v. Lasky, 855 So.2d 169, 172 (Fla. 5“ DCA (2003). 17 In addition to the jurisdictional statement and the relief sought, the Complaint must contain a plain statement of ultimate facts establishing entitlement to relief. Pratus v. City of Naples, 807 So.2d 795, 796 (Fla. 2"! DCA 2002). 18. CounterPlaintiff has plead a series of ultimate facts demonstrating the gross mismanagement which occurred during the history of this loan and factually incorporated those facts into nine (9) specific causes of action recognized in Florida: (1) Breach of Contract; (2) Breach of Duty of Good Faith; (3) FDUPTA Violations; (4) FCCPA Violations; (5) FDCPA Violations; (6) Florida Civil RICO; (7); Breach of Fiduciary Duty; (8) Equitable Accounting; and (9) Equitable Accounting. COUNT I - BREACH OF CONTRACT 19 The elements of a cause of action for Breach of Contract are: (1) existence of a contract; breach of the contract; and damages resulting from the breach. Ferguson Enterprises v. Astro Air Conditioning and Heating, 137 So.3d 613, 615 (Fla. 2"! DCA 2014. 20. CounterPlaintiff has met this pleading burden. COUNT II __ BREACH OF DUTY OF GOOD FAITH 21 The elements ofa cause of action for Breach of Duty of Good Faith are: (1) the Plaintiff and Defendant are parties to a written contract; (2) the contract is ambiguous about the permissibility or scope ofthe conduct in question; (3) the Defendant, through a conscious and deliberate act , fails or refuses to discharge contractual responsibilities, which unfairly frustrates the contract’s purpose and disappoints the Claimants expectations; the Defendant’s breach deprives the Claimant of the contract’s benefits; and (5) the Claimant suffers damages. Cox v. Intermodal, Inc. 732 So.2d 1092, 10097 (Fla. It DCA 1999). 22. CounterPlaintiff has met this pleading burden. COUNT II - FDUPTA VIOLATIONS 23 A consumer claim for damages under FDUPTA has three elements (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages. See, Rollins, Inc. v. Butland, 951 So0.2d860, 869 (Fla. 2"¢ DCA 2006). 24 CounterPlaintiff has met this pleading burden. COUNT IV —- FCCPA VIOLATIONS 25 The elements for a cause of action under the FCCPA are: (1) Defendant is a “person”; (2) Claimant is “consumer”; (3) violation ofthe prohibited acts; and (4) statutory damages. See, Florida Statute Section 559.77(2). 26. CounterPlaintiff has met this pleading burden. COUNT V - FDCPA VIOLATIONS 27. The elements for a cause of action under the FDCPA are: (1) Defendant is a “debt collector”; (2) Claimant is “consumer”; (3) violation of the prohibited acts; and (4) statutory damages. See, 15 U.S.C. Section 1692. 28, CounterPlaintiff has met this pleading burden. COUNT VI- FLORIDA CIVIL RICO 29. The elements of a cause action for Civil RICO are: (1) the existence of an enterprise , which the Defendant was employed by or associated with in committing the crimes; (2) A pattern of racketeering activity; and (3) at least two incidents of racketeering or racketeering conduct that have the same or similar intents, results, accomplices, victims or methods of commission , or are otherwise interrelated by distinguishing characteristics and are not isolated incidents. Shimek v. State , 610 So.2d 632, 634-635(Fla 1 DCA 1992. 30. CounterPlaintiff has met this pleading burden. COUNT VII- BREACH OF FIDUCIARY DUTY 31 The elements ofa cause of action for Breach Fiduciary Duty are: (1) the existence of a fiduciary duty; breach of that duty; and damages flowing from the breach. Rocco v. Glenn, Rasmussen, Fogarty & Hooker, P.A. 32 So.3d 111, 116 (Fla. 2"! DCA 2009. 32. CounterPlaintiff has met this pleading burden. COUNT VIII-EQUITABLE ACCOUNTING 33 The elements for a cause of action for Equitable Accounting are: (1) Equity has jurisdiction to entertain an action for an accounting where a confidential of fiduciary relationship is shown to exist. Cushman v. Shubert, 110 So.2™! 703, 705 (Fla. 2" DCA 1959). 34, CounterPlaintiff has met this pleading burden. COUNT VIHI-EQUITABLE ESTOPPEL 35. The elements for a cause of action for Equitable Estoppel are: (the party against who the estoppel is sought must have made a representation about material fact that is contrary to a position that it later asserts; (2) the party claiming estoppel must have relied on that representation; and (3) the party seeking estoppel must have changed his position to his detriment based on the representation and his reliance on it. Winand v. Weber, 979 So.2d 269 (Fla. 2"! DCA 2007). 36 CounterPlaintiff has met this pleading burden. WHEREFORE, Defendant/CounterPlaintiff SCOTT SHAPIRO request this Court deny Plaintiff's Motion to Dismiss and grant such other and further relief as this Court deems fit. Dated: September 25, 2023 Respectfully submitted, /s/ Jeffrey C. Hakanson JEFFREY C. HAKANSON, ESQUIRE Florida Bar No. 0061328 Primary E-mail: jeff@mcintyrefirm.com Secondary E-mail: jchservice@mcintyrefirm.com McIntyre Thanasides Bringgold Elliott Grimaldi Guito & Matthews, P.A. 500 E. Kennedy Blvd., Suite 200 Tampa, FL 33602 813-223-0000 Tel. Attorneys for Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to all counsel of record through the Florida E-Portal to all counsel of record and by regular U.S. Mail to all Defendants on the attached Service List, on this 25 day of September, 2023. /s/ Jeffrey C. Hakanson JEFFREY C. HAKANSON, ESQUIRE Florida Bar No. 0061328 Primary E-mail: Jeff@mcintyrefirm.com Secondary E-mail: JCHservice@mcintyrefirm.com McIntyre Thanasides Bringgold Elliott Grimaldi Guito & Matthews, P.A. 500 E. Kennedy Blvd., Suite 200 Tampa, Florida 33602 813-223-0000 Tel.; 813-899-6069 Fax Attorneys for Defendant SERVICE LIST JEFFREY C. HAKANSON, ESQ. MCINTYRE THANASIDES ATTORNEY FOR DEFENDANT 500 E. KENNEDY BLVD., SUITE 200 TAMPA, FL 33602 jeff@mcintyrefirm.com jchservice@mcintyrefirm.com STEPHEN M. WEINSTEIN, ESQ. TROMBERG, MORRIS & POULIN, PLLC ATTORNEY FOR PLAINTIFF 1515 SOUTH FEDERAL HWY, SUITE 100 BOCA RATON, FL 33432 eservice@tmppllc.com ARIEL ACEVEDO, ESQ. LIEBLER, GONZALEZ & PORTUONDO CO-COUNSEL FOR PLAINTIFF COURTHOUSE TOWER - 25! FLOOR 44 WEST FLAGLER STREET MIAML, FL 33130 service@lgplaw.com