Preview
Filing # 13502099 Electronically Filed 05/09/2014 03:47:24 PM
IN THE CIRCUIT COURT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 14-10799-CA-01
AVANTI HOMEOWNERS ASSOCIATION,
Plaintiff/Counter-Defendant,
vs.
STEPHANE DUPOUX,
Defendant/Counter-Plaintiff.
/
COUNTER-DEFENDANT, AVANTI HOMEOWNER’S ASSOCIATION’S MOTION TO
DISMISS COUNTER-PLAINTIFF’S COUNTERCLAIM FOR FAILURE TO COMPLY
WITH FLORIDA STATUTE 720.311, AND MOTION TO DISMISS FOR LACK OF
SUBJECT MATTER JURISDICTION
Comes now, Counter-Defendant, AVANT| HOMEOWNER’S ASSOCIATION
(hereinafter “Counter-Defendant” or “Association”), by and through the undersigned
counsel, pursuant to the Florida Rules of Civil Procedure and Florida Statute §720.311
hereby files this, its Motion to Dismiss for Failure to Comply with Florida Statute 720.311
and Motion to Dismiss for Lack of Subject Matter Jurisdiction, and in support thereof
states as follows:
1. On or around July 26, 2013, Counter-Plaintiff, STEPHANE DUPOUX
(hereinafter “Counter-Plaintiff’ or “Dupoux’), filed a Counterclaim against the
Association. Therein, the Counter-Plaintiff attempts to assert three (3) causes of action
against the Association arising from the Association’s alleged prevention of the use of
the common areas and full use and enjoyment of Dupoux’s property by Dupoux’s
children; alleged prevention of Dupoux from receiving mail; and alleged dissemination of
information which Dupoux claims to be damaging.
COLE, SCOTT & KISSANE, P.A.
1645 PALM BEACH LAKES BOULEVARD - 2ND FLOOR - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAXCASE NO.: 14-10799-CA-01
2. In Count I, the Counter-Plaintiff endeavors to assert a claim for Breach of
Fiduciary Duty. Notwithstanding the fact that this cause of action is not properly pled
and fails to set forth an actionable claim against the Association, the allegations therein
fall directly within the purview of Florida Statute §720.311 which requires pre-suit
mediation for this type of dispute.
3. Count Il suffers from the same procedural defect. In Count Il, the
Counter-Plaintiff attempts to set forth a claim for violation of Florida Statute 720.304
arising from the Association’s alleged prevention of Dupoux’s children’s use of the
common areas and from the full use and enjoyment of Dupoux’s property. In addition to
failing to properly state a cause of action, the Counter-Plaintiff has failed to file a pre-suit
demand for mediation in derogation of §720.311. As a result, the Counter-Plaintiff's
Counterclaim must be dismissed.
4. In Count III, which also suffers from the same procedural defect, Counter-
Plaintiff attempts to set forth a claim for violation of the Florida Consumer Collection
Practices Act arising from the Association’s alleged prevention of the use of the
common areas and full use and enjoyment of Dupoux’s property by Dupoux’s children;
alleged prevention of Dupoux from receiving mail; and alleged dissemination of
information which Dupoux claims to be damaging. In addition to failing to properly state
a cause of action, the Counter-Plaintiff has failed to file a pre-suit demand for mediation
in derogation of §720.311. As a result, the Counter-Plaintiffs Counterclaim must be
dismissed.
5. Furthermore, the Association requests an order declaring it the prevailing
party for the purpose of recovering the attorney’s fees and costs incurred as a result of
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COLE, SCOTT & KISSANE, P.A.
1645 PALM BEACH LAKES BOULEVARD - 2ND FLOOR - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAXCASE NO.: 14-10799-CA-01
the Counter-Plaintiff’s failure to comply with Florida Statute §720.311. The Association
is entitled to recover its attorney's fees and costs incurred in compelling the Counter-
Plaintiffs to comply with the aforementioned statute pursuant to its governing documents
and Florida Statute §720.305.
MEMORANDUM OF LAW
A. Counter-Plaintiff Failed to Make a Demand for Pre-Suit Mediation.
Prior to filing a lawsuit against a homeowners association in Florida, the
aggrieved party must first make a demand for pre-suit mediation. This is a calculated
effort on the part of the Florida legislature to promote judicial economy through the use
of alternative dispute resolutions. The relevant portion of Florida Statute §720.311(2)a
states the following:
Disputes between an association and a parcel owner regarding use
of or changes to the parcel or the common areas and other covenant
enforcement disputes, disputes regarding amendments to the
association documents, disputes regarding meetings of the board and
committees appointed by the board, membership meetings not including
election meetings, and access to the official records of the association
shall be the subject of a demand for presuit mediation served by an
aggrieved party before the dispute is filed in court. Presuit mediation
proceedings must be conducted in accordance with the applicable Florida
Rules of Civil Procedure, and these proceedings are privileged and
confidential to the same extent as court-ordered mediation. Disputes
subject to presuit mediation under this section shall not include the
collection of any assessment, fine, or other financial obligation, including
attorney's fees and costs, claimed to be due or any action to enforce a
prior mediation settlement agreement between the parties.
See, Fla. Stat. § 720.311(2)(a) (emphasis added).
While there are certainly exceptions to the aforementioned statute, the
allegations set forth in the Counter-Plaintiff's Counterclaim fall directly within the purview
of Florida Statute §720.311(2)(a). The Counter-Plaintiff maintains that she and her
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COLE, SCOTT & KISSANE, P.A.
1645 PALM BEACH LAKES BOULEVARD - 2ND FLOOR - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAXCASE NO.: 14-10799-CA-01
family have been damaged due to the Association’s above-referenced alleged failures,
which relate to disputes between an association and a parcel owner regarding the use
of common areas and other areas. While the Association firmly denies all of the
allegations set forth in the Counterclaim, and denied that Counter-Plaintiff has standing
to bring claims on behalf of her children, the nature of the Counter-Plaintiff's
counterclaim requires the parties to participate in pre-suit mediation. Florida Statute
§720.311(2)a. As the Counter-Plaintiff has failed to meet the statutorily mandated
conditions precedent prior to filing suit, this Counterclaim must be dismissed as a matter
of law.
Further, the Association is entitled to recover the attorney's fees and costs it has
incurred due to the Counter-Plaintiff's failure to comply with the aforementioned statute
pursuant to Florida Statute §720.305.
B. Counter-Defendant was, and is, well within its rights and abilities to
restrict and/or prevent Counter-Plaintiff, Counter-Plaintiff's tenant’s,
guests, or invitees from use of common areas.
Pursuant to Florida Statute § 720.305(2)(a), “[a]n association may suspend, for a
reasonable period of time, the right of a member, or a member's tenant, guest, or
invitee, to use common areas and facilities for the failure of the owner of the parcel or its
occupant, licensee, or invitee to comply with any provision of the declaration, the
association bylaws, or reasonable rules of the association.”
In her Amended Affirmative Defenses and Counterclaim, Counter-Plaintiff states
that “[t]he Association’s books and records are improper and reflect an amount owing by
the Defendant that is incorrect, specifically in that as the Defendant was not given
COLE, SCOTT & KISSANE, P.A.
1645 PALM BEACH LAKES BOULEVARD - 2ND FLOOR - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAXCASE NO.: 14-10799-CA-01
proper notice of what amounts were owed, she was not able to pay the amounts as they
came due, and was charged improper late fees.” See, Exhibit “A.”
Based upon Counter-Plaintiff's statement, it cannot be disputed that Counter-
Plaintiff admits to owing an amount to Counter-Defendant. As such, pursuant to Fla.
Stat. § 720.305(2)(a), Counter-Defendant was well within its rights and abilities to
restrict or prevent Counter-Plaintiff, Counter-Plaintiffs tenant’s, guests, or invitees from
use of common areas, should it choose to do so.
Therefore, all of the claims in the Counterclaim must be dismissed.
WHEREFORE, the Counter-Defendant, § AVANTI HOMEOWNER'S
ASSOCIATION, respectfully requests that this Honorable Court enter an order
Dismissing the Counter-Plaintiffs Counterclaim and declaring the Counter-Defendant
the prevailing party for a purpose of an award of prevailing party attorney's fees and
costs, and any other relief deemed proper.
(Remainder of page intentionally left blank)
COLE, SCOTT & KISSANE, P.A.
1645 PALM BEACH LAKES BOULEVARD - 2ND FLOOR - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAXCASE NO.: 14-10799-CA-01
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was
furnished via U.S. Mail this 9" day of May, 2014 to: Vanessa Jaleh Bravo, Esq.,
Neustein Law Group P.A., 777 Arthur Godfrey Road, 2"¢ Floor, Miami Beach, FL 33140,
and Luis R. Lasa Ill, Esq., Association Law Group, 1200 Brickell Avenue, PH 2000,
Miami, FL 33131, and via Electronic Mail to: NLGLaw@yahoo.com;
Natalia@neusteinlaw.com; Vanessa@neusteinlaw.com;and Luis@algpl.com.
COLE, SCOTT & KISSANE, P.A.
Attorneys for Defendants
1645 Palm Beach Lakes Blvd., 2" Floor
West Palm Beach, Florida 33401
Telephone: (561) 383-9200
Facsimile: (661) 683-8977
By:__/s// NOAH E. STORCH
S. JONATHAN VINE
FBN: 010966
NOAH E. STORCH
FBN: 085476
1:\0439-0182-00\p\complaint, response, etc\counter-d's mtd counterclaim (circuit court).docx
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COLE, SCOTT & KISSANE, P.A.
1645 PALM BEACH LAKES BOULEVARD - 2ND FLOOR - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAXIN THE COUNTY COURT OF
THE 11° JUDICIAL CIRCUIT IN
AND FOR MIAMI-DADE
COUNTY, FLORIDA
CASE NO.: 12-006008-CC-23
AVANTI HOMEOWNERS ASSOCIATION,
Plaintiff,
vs.
STEPHANE DUPOUX,
Defendants.
/
AMENDED AFFIRMATIVE DEFENSES AND COUNTERCLAIM
The Defendant, STEPHANE DUPOUX, by and through undersigned counsel,
hereby files his Amended Affirmative Defenses to the Complaint and files his
Counterclaim, as set forth below.
AMENDED AFFIRMATIVE DEFENSES
1. Defendants did not receive the Notice of Intent to Place Lien and the
Notice of Intent to Foreclose and, consequently, never received the required
FDCPA notice. Plaintiff sent the statutory notice letters to 9 East 19" Street, 17"
Floor, New York, NY 10003; this address was incorrect, as Defendant never
occupied a unit on the 17" Floor, and in any event, Defendant ceased occupying
this address since February 2009. Thus, the June 29, 2009 Notice of Intent to
Lien was not received by the Defendant at this address and was returned to
sender. The June 29, 2009 Notice of Intent to Lien, Certified Mail Number
70091 41000002361 0798, was also not received by the Defendant, as he was not
EXHIBIT Aoccupying the subject property at that time and was in fact out of the country at
the time. Defendant's mail was forwarded to his address in East Hampton, N.Y.
and tenants of that property signed the delivery receipt but the letter was in fact
not received by the Defendant. Similarly, the January 25, 2011 Notice of Intent to
Foreclose was also not received by the Defendant at any of the addresses it was
sent to, as it was sent to the 9 E. 19"" Street address and was returned to sender
and all other attempts at service were not received by the Defendant. All
conditions precedent and statutory prerequisites to filing suit have thus not been
complied with. The notice requirements of Florida Statute 720.3085 are also not
waived or relieved by section (5)(b) of the statute, as the section does not
alleviate the requirement to provide some notice.
2. The Association’s books and records are improper and reflect an amount
owing by the Defendant that is incorrect, specifically in that as the Defendant was
not given proper notice of what amounts were owed, he was not able to pay the
amounts as they came due, and was charged improper late fees.
3. The Association improperly delegated its duty to a community
management association firm (“CAM firm”), as that term is defined by as that
term is defined by Florida Statute 468.431 (2), in that the CAM firm performing
management services for the Plaintiff is responsible for the management of 10
or more units or a budget of more than $100,000, and therefore must be
licensed by the Florida Department of Business and Professional Regulation to
provide association management services. The CAM firm performing
management services for the Plaintiff is conducting unlicensed activity and thisimproper delegation is a breach of the fiduciary duty owed to the Defendant
pursuant to Florida Statute 720.303(1).
4. Set-off: Defendant is entitled to a set-off of any amount claimed by the
Plaintiff due to the violations as asserted in his Counterclaim, and any amount
deemed owed to Counter-Defendant, pled below.
DEMAND FOR ATTORNEYS FEES AND JURY TRIAL REQUEST
That the Defendant was obligated to retain the undersigned as their attorney herein
and is obligated to pay a reasonable fee herein. Defendant requests a jury trial in this
matter.
WHEREFORE, the Defendant moves this Honorable Court to dismiss the Complaint
filed herein, award court costs and attorney’s fees necessitated by having to defend this
action.
COUNTERCLAIM
Counter-Plaintiff, STEPHANE DUPOUX (“Dupoux”) , counter-sues AVANTI
HOMEOWNERS ASSOCIATION (“Avanti HOA”), alleging as follows.
PARTIES, JURISDICTION, VENUE and CONDITIONS PRECEDENT
1. This is an action for damages that exceeds $15,000, exclusive of interest and
attorney's fees.
2. Counter-Plaintiff Dupoux is an individual, is Sui Juris, and has already
submitted himself to the jurisdiction of this Court.
3. Counter-Defendant Avanti HOA is a Florida not-for-profit-Corporation and is a
homeowners association in Miami-Dade County, Florida.
4. That the cause of action herein accrued in Miami-Dade County, Florida andsubject matter jurisdiction is invoked pursuant to Fla. Stat. §26.012.
5. Venue is proper by reason of Fla. Stat §47.011, because all or a substantial
part of the events giving rise to Plaintiffs claims occurred in Miami-Dade
County, Florida.
6. All conditions precedent have been met prior to the filing of this suit or the
same has been excused as a matter of law.
WHEREFORE, the Counter-Plaintiffs pray that this Honorable Court enter a
judgment for damages against the Counter-Defendant herein together with interest,
costs and attorney's fees.
COUNT I- BREACH OF FIDUCIARY DUTY- VIOLATION OF FLA. STAT.
720.303(1)
7. Counter-Plaintiff incorporates by reference paragraphs 1 through 8 and
repleads them herein.
8. Avant HOA, by and through its authorized agent, the President of Avanti
HOA, has engaged and continues to engage presently, in harassing actions
designed to harass, embarrass, and demean Counter-Plaintiff and Counter-
Plaintiff's family; such actions were committed on the purported behalf of the
Association and were within the scope of his duties as President.
9. Pursuant to Fla. Stat. 720.303(1), the officers and directors of an association
have a fiduciary relationship to the members who are served by the
association, including the Counter-Plaintiff. Such fiduciary duty includes the
duty of dealing honestly and fairly, duty of loyalty, duty to treat members fairly,
duty to use ordinary care and prudence in managing the property andfinancial affairs of the Association, and the duty to act reasonably in the
exercise of the Association's discretionary powers including rulemaking,
enforcement, and design-control powers.
10. Beginning around approximately January 2013, Avanti HOA, by and through
its President, committed and continues to commit the following breaches of
the fiduciary duty owed to the Counter-Plaintiff, causing him actual damages:
- Disseminating for no lawful purpose reputation-damaging information
regarding the Counter-Plaintiff, posting in online newspapers or news
forums that the Counter-Plaintiff is delinquent in his assessments, is in
foreclosure proceedings, is delinquent in his debts and responsibilities and
is otherwise a “deadbeat,” for the purpose of harassing and embarrassing
Counter-Plaintiff.
- Has prevented Counter-Plaintiff from receiving his mail by placing signs on
the mailbox that no one occupies the property, with the intention of
obstructing mail from Counter-Plaintiff and harassing him.
- Has repeatedly harassed Counter-Plaintiffs children, preventing their use
of the common areas and from the full use and enjoyment of Counter-
Plaintiff's property, by telling them that they cannot ride their bicycles in
front of Counter-Plaintiff's home, and by harassing and embarrassing
Counter-Plaintiff's children and instructing them that they cannot use the
common areas or recreational facilities even as guests of other resident
children.
11. The foregoing actions have caused Counter-Plaintiff actual damages andcontinually impair his right to enjoyment and use of his property and the
Association’s common areas and recreational facilities. The harassing actions
have embarrassed and harassed the Counter-Plaintiff and his family, have
caused emotional injury and damage to his reputation, good character, and
standing in the community, and have damaged his credit-worthiness. The
harassing actions are being continually employed and thereby constitute a
present and continuing breach of the fiduciary duty owed to Counter-Plaintiff
pursuant to Fla. Stat. 720.303(1).
12.Counter-Plaintiff has been obligated to retain the undersigned as its attorney
herein and is obligated to pay a reasonable fee therefore.
WHEREFORE, the Counter-Plaintiff prays that this Honorable Court enter a
judgment for damages against the Counter-Defendant herein together with interest,
costs and attorney’s fees.
COUNT II- VIOLATION OF FLA. STAT. 720.304
13. Counter-Plaintiff incorporates by reference paragraphs 1 through 8 and
repleads them herein.
14. Avant HOA, by and through its authorized agent, the President of Avanti
HOA, has engaged and continues to engage presently, in harassing actions
designed to harass, embarrass, and demean Counter-Plaintiff and Counter-
Plaintiff's family; such actions were committed on the purported behalf of the
Association and were within the scope of his duties as President.
15. Beginning around approximately January 2013, Avanti HOA, by and throughits President, committed and continues to commit the following violations of
Fla. Stat. 720.304(1), causing him actual damages:
- Has repeatedly harassed Counter-Plaintiff's children, preventing their use
of the common areas and from the full use and enjoyment of Counter-
Plaintiff's property, by telling them that they cannot ride their bicycles in
front of Counter-Plaintiff's home, and by harassing and embarrassing
Counter-Plaintiff's children and instructing them that they cannot use the
common areas or recreational facilities even as guests of other resident
children.
16. The foregoing actions have caused Counter-Plaintiff actual damages and
continually impair his right to enjoyment and use of his property and the
Association’s common areas and recreational facilities.
17. The harassing actions are being continually employed and thereby constitute
a present and continuing violation Fla. Stat. 720.304(1), which states that “[a]ll
common areas and recreational facilities serving any homeowners’
association shall be available to parcel owners in the homeowners’
association served thereby and their invited guests for the use intended for
such common areas and recreational facilities.”
18. Counter-Plaintiff has been obligated to retain the undersigned as its attorney
herein and is obligated to pay a reasonable fee therefore.
WHEREFORE, the Counter-Plaintiff prays that this Honorable Court enter a
judgment for damages against the Counter-Defendant herein together with interest,
costs and attorney’s fees.COUNT III- VIOLATION OF THE FLORIDA CONSUMER COLLECTION
PRACTICES ACT
19. Counter-Plaintiff incorporates by reference paragraphs 1 through 8 and
repleads them herein.
20. This is an action pursuant to the Florida Consumer Collection Practices Act
for violations of Fla. Stat. 559.72(5), (7), (8) and (14). The President of Avanti
HOA has committed the following acts of harassment on behalf of Avanti
HOA in the course of attempting to collect a consumer debt from the Counter-
Plaintiff; by virtue of such harassment, the President has attempted to coerce
payment of association assessments through acts designed to harass,
embarrass and demean Counter-Plaintiff.
2
. Avant HOA, by and through its authorized agent, the President of Avanti
HOA, has engaged and continues to engage presently, in harassing actions
designed to harass, embarrass, and demean Counter-Plaintiff and Counter-
Plaintiff's family; such actions were committed on the purported behalf of the
Association and were within the scope of his duties as President. Beginning
around approximately January 2013, Avanti HOA, by and through its
President, committed and continues to commit the following violations of Fla.
Stat. 559.72, causing him actual damages:
- Disseminating for no lawful purpose reputation-damaging information
regarding the Counter-Plaintiff, posting in online newspapers or news
forums that the Counter-Plaintiff is delinquent in his assessments, is in
foreclosure proceedings, is delinquent in his debts and responsibilities and
is otherwise a “deadbeat,” for the purpose of harassing and embarrassingCounter-Plaintiff.
- Has prevented Counter-Plaintiff from receiving his mail by placing signs on
the mailbox that no one occupies the property, with the intention of
obstructing mail from Counter-Plaintiff and harassing him.
- Has repeatedly harassed Counter-Plaintiff's children, preventing their use
of the common areas and from the full use and enjoyment of Counter-
Plaintiff's property, by telling them that they cannot ride their bicycles in
front of Counter-Plaintiff's home, and by harassing and embarrassing
Counter-Plaintiffs children and instructing them that they cannot use the
common areas or recreational facilities even as guests of other resident
children.
22. The foregoing actions have caused Counter-Plaintiff actual damages and
continually impair his right to enjoyment and use of his property and the
Association’s common areas and recreational facilities. The harassing actions
have embarrassed and harassed the Counter-Plaintiff and his family, have
caused emotional injury and damage to his reputation, good character, and
standing in the community, and have damaged his credit-worthiness. The
harassing actions are being continually employed and thereby constitute
present and continuing violations of Fla. Stat. 559.72, specifically violations of
Fla. Stat. 559.72(5), (7), (8) and (14).
23. Counter-Defendant’s violations have caused actual damages and also entitle
Counter-Plaintiff to the recovery of statutory damages, attorney’s fees and
costs pursuant to Fla. Stat. 559.77(2). Counter-Plaintiff has been obligated toretain the undersigned as its attorney herein and is obligated to pay a
reasonable fee therefore.
WHEREFORE, the Counter-Plaintiff prays that this Honorable Court enter a
judgment for damages against the Counter-Defendant herein together with interest,
costs and attorney's fees.
JURY TRIAL DEMAND
Counter-Plaintiff requests a jury trial in this Counterclaim.
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a copy was e-mailed on July 26, 2013 to: Shantrell L.
Lewis, Esq., Bakalar & Associates, P.A., 150 South Pine Island Road, Ste 450,
Plantation, FL 33324; email: lewis-litigation@assoc-law.com.
NEUSTEIN LAW GROUP, P.A.
Attorneys for Defendant
777 Arthur Godfrey Road, Second Floor
Miami Beach, FL 33140
Telephone: (305) 531-2545
Telefax: (305) 531-2365
Primary Email: NLGLaw@yahoo.com
Secondary Email: Natalia@neusteinlaw.com.
By:___/s/Vanessa Jaleh Bravo
VANESSA JALEH BRAVO
FLORIDA BAR NO.: 87924
Preview
Filing # 13502099 Electronically Filed 05/09/2014 03:47:24 PM IN THE CIRCUIT COURT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO.: 14-10799-CA-01 AVANTI HOMEOWNERS ASSOCIATION, Plaintiff/Counter-Defendant, vs. STEPHANE DUPOUX, Defendant/Counter-Plaintiff. / COUNTER-DEFENDANT, AVANTI HOMEOWNER’S ASSOCIATION’S MOTION TO DISMISS COUNTER-PLAINTIFF’S COUNTERCLAIM FOR FAILURE TO COMPLY WITH FLORIDA STATUTE 720.311, AND MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Comes now, Counter-Defendant, AVANT| HOMEOWNER’S ASSOCIATION (hereinafter “Counter-Defendant” or “Association”), by and through the undersigned counsel, pursuant to the Florida Rules of Civil Procedure and Florida Statute §720.311 hereby files this, its Motion to Dismiss for Failure to Comply with Florida Statute 720.311 and Motion to Dismiss for Lack of Subject Matter Jurisdiction, and in support thereof states as follows: 1. On or around July 26, 2013, Counter-Plaintiff, STEPHANE DUPOUX (hereinafter “Counter-Plaintiff’ or “Dupoux’), filed a Counterclaim against the Association. Therein, the Counter-Plaintiff attempts to assert three (3) causes of action against the Association arising from the Association’s alleged prevention of the use of the common areas and full use and enjoyment of Dupoux’s property by Dupoux’s children; alleged prevention of Dupoux from receiving mail; and alleged dissemination of information which Dupoux claims to be damaging. COLE, SCOTT & KISSANE, P.A. 1645 PALM BEACH LAKES BOULEVARD - 2ND FLOOR - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAXCASE NO.: 14-10799-CA-01 2. In Count I, the Counter-Plaintiff endeavors to assert a claim for Breach of Fiduciary Duty. Notwithstanding the fact that this cause of action is not properly pled and fails to set forth an actionable claim against the Association, the allegations therein fall directly within the purview of Florida Statute §720.311 which requires pre-suit mediation for this type of dispute. 3. Count Il suffers from the same procedural defect. In Count Il, the Counter-Plaintiff attempts to set forth a claim for violation of Florida Statute 720.304 arising from the Association’s alleged prevention of Dupoux’s children’s use of the common areas and from the full use and enjoyment of Dupoux’s property. In addition to failing to properly state a cause of action, the Counter-Plaintiff has failed to file a pre-suit demand for mediation in derogation of §720.311. As a result, the Counter-Plaintiff's Counterclaim must be dismissed. 4. In Count III, which also suffers from the same procedural defect, Counter- Plaintiff attempts to set forth a claim for violation of the Florida Consumer Collection Practices Act arising from the Association’s alleged prevention of the use of the common areas and full use and enjoyment of Dupoux’s property by Dupoux’s children; alleged prevention of Dupoux from receiving mail; and alleged dissemination of information which Dupoux claims to be damaging. In addition to failing to properly state a cause of action, the Counter-Plaintiff has failed to file a pre-suit demand for mediation in derogation of §720.311. As a result, the Counter-Plaintiffs Counterclaim must be dismissed. 5. Furthermore, the Association requests an order declaring it the prevailing party for the purpose of recovering the attorney’s fees and costs incurred as a result of -2- COLE, SCOTT & KISSANE, P.A. 1645 PALM BEACH LAKES BOULEVARD - 2ND FLOOR - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAXCASE NO.: 14-10799-CA-01 the Counter-Plaintiff’s failure to comply with Florida Statute §720.311. The Association is entitled to recover its attorney's fees and costs incurred in compelling the Counter- Plaintiffs to comply with the aforementioned statute pursuant to its governing documents and Florida Statute §720.305. MEMORANDUM OF LAW A. Counter-Plaintiff Failed to Make a Demand for Pre-Suit Mediation. Prior to filing a lawsuit against a homeowners association in Florida, the aggrieved party must first make a demand for pre-suit mediation. This is a calculated effort on the part of the Florida legislature to promote judicial economy through the use of alternative dispute resolutions. The relevant portion of Florida Statute §720.311(2)a states the following: Disputes between an association and a parcel owner regarding use of or changes to the parcel or the common areas and other covenant enforcement disputes, disputes regarding amendments to the association documents, disputes regarding meetings of the board and committees appointed by the board, membership meetings not including election meetings, and access to the official records of the association shall be the subject of a demand for presuit mediation served by an aggrieved party before the dispute is filed in court. Presuit mediation proceedings must be conducted in accordance with the applicable Florida Rules of Civil Procedure, and these proceedings are privileged and confidential to the same extent as court-ordered mediation. Disputes subject to presuit mediation under this section shall not include the collection of any assessment, fine, or other financial obligation, including attorney's fees and costs, claimed to be due or any action to enforce a prior mediation settlement agreement between the parties. See, Fla. Stat. § 720.311(2)(a) (emphasis added). While there are certainly exceptions to the aforementioned statute, the allegations set forth in the Counter-Plaintiff's Counterclaim fall directly within the purview of Florida Statute §720.311(2)(a). The Counter-Plaintiff maintains that she and her -3- COLE, SCOTT & KISSANE, P.A. 1645 PALM BEACH LAKES BOULEVARD - 2ND FLOOR - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAXCASE NO.: 14-10799-CA-01 family have been damaged due to the Association’s above-referenced alleged failures, which relate to disputes between an association and a parcel owner regarding the use of common areas and other areas. While the Association firmly denies all of the allegations set forth in the Counterclaim, and denied that Counter-Plaintiff has standing to bring claims on behalf of her children, the nature of the Counter-Plaintiff's counterclaim requires the parties to participate in pre-suit mediation. Florida Statute §720.311(2)a. As the Counter-Plaintiff has failed to meet the statutorily mandated conditions precedent prior to filing suit, this Counterclaim must be dismissed as a matter of law. Further, the Association is entitled to recover the attorney's fees and costs it has incurred due to the Counter-Plaintiff's failure to comply with the aforementioned statute pursuant to Florida Statute §720.305. B. Counter-Defendant was, and is, well within its rights and abilities to restrict and/or prevent Counter-Plaintiff, Counter-Plaintiff's tenant’s, guests, or invitees from use of common areas. Pursuant to Florida Statute § 720.305(2)(a), “[a]n association may suspend, for a reasonable period of time, the right of a member, or a member's tenant, guest, or invitee, to use common areas and facilities for the failure of the owner of the parcel or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association.” In her Amended Affirmative Defenses and Counterclaim, Counter-Plaintiff states that “[t]he Association’s books and records are improper and reflect an amount owing by the Defendant that is incorrect, specifically in that as the Defendant was not given COLE, SCOTT & KISSANE, P.A. 1645 PALM BEACH LAKES BOULEVARD - 2ND FLOOR - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAXCASE NO.: 14-10799-CA-01 proper notice of what amounts were owed, she was not able to pay the amounts as they came due, and was charged improper late fees.” See, Exhibit “A.” Based upon Counter-Plaintiff's statement, it cannot be disputed that Counter- Plaintiff admits to owing an amount to Counter-Defendant. As such, pursuant to Fla. Stat. § 720.305(2)(a), Counter-Defendant was well within its rights and abilities to restrict or prevent Counter-Plaintiff, Counter-Plaintiffs tenant’s, guests, or invitees from use of common areas, should it choose to do so. Therefore, all of the claims in the Counterclaim must be dismissed. WHEREFORE, the Counter-Defendant, § AVANTI HOMEOWNER'S ASSOCIATION, respectfully requests that this Honorable Court enter an order Dismissing the Counter-Plaintiffs Counterclaim and declaring the Counter-Defendant the prevailing party for a purpose of an award of prevailing party attorney's fees and costs, and any other relief deemed proper. (Remainder of page intentionally left blank) COLE, SCOTT & KISSANE, P.A. 1645 PALM BEACH LAKES BOULEVARD - 2ND FLOOR - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAXCASE NO.: 14-10799-CA-01 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via U.S. Mail this 9" day of May, 2014 to: Vanessa Jaleh Bravo, Esq., Neustein Law Group P.A., 777 Arthur Godfrey Road, 2"¢ Floor, Miami Beach, FL 33140, and Luis R. Lasa Ill, Esq., Association Law Group, 1200 Brickell Avenue, PH 2000, Miami, FL 33131, and via Electronic Mail to: NLGLaw@yahoo.com; Natalia@neusteinlaw.com; Vanessa@neusteinlaw.com;and Luis@algpl.com. COLE, SCOTT & KISSANE, P.A. Attorneys for Defendants 1645 Palm Beach Lakes Blvd., 2" Floor West Palm Beach, Florida 33401 Telephone: (561) 383-9200 Facsimile: (661) 683-8977 By:__/s// NOAH E. STORCH S. JONATHAN VINE FBN: 010966 NOAH E. STORCH FBN: 085476 1:\0439-0182-00\p\complaint, response, etc\counter-d's mtd counterclaim (circuit court).docx -6- COLE, SCOTT & KISSANE, P.A. 1645 PALM BEACH LAKES BOULEVARD - 2ND FLOOR - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAXIN THE COUNTY COURT OF THE 11° JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO.: 12-006008-CC-23 AVANTI HOMEOWNERS ASSOCIATION, Plaintiff, vs. STEPHANE DUPOUX, Defendants. / AMENDED AFFIRMATIVE DEFENSES AND COUNTERCLAIM The Defendant, STEPHANE DUPOUX, by and through undersigned counsel, hereby files his Amended Affirmative Defenses to the Complaint and files his Counterclaim, as set forth below. AMENDED AFFIRMATIVE DEFENSES 1. Defendants did not receive the Notice of Intent to Place Lien and the Notice of Intent to Foreclose and, consequently, never received the required FDCPA notice. Plaintiff sent the statutory notice letters to 9 East 19" Street, 17" Floor, New York, NY 10003; this address was incorrect, as Defendant never occupied a unit on the 17" Floor, and in any event, Defendant ceased occupying this address since February 2009. Thus, the June 29, 2009 Notice of Intent to Lien was not received by the Defendant at this address and was returned to sender. The June 29, 2009 Notice of Intent to Lien, Certified Mail Number 70091 41000002361 0798, was also not received by the Defendant, as he was not EXHIBIT Aoccupying the subject property at that time and was in fact out of the country at the time. Defendant's mail was forwarded to his address in East Hampton, N.Y. and tenants of that property signed the delivery receipt but the letter was in fact not received by the Defendant. Similarly, the January 25, 2011 Notice of Intent to Foreclose was also not received by the Defendant at any of the addresses it was sent to, as it was sent to the 9 E. 19"" Street address and was returned to sender and all other attempts at service were not received by the Defendant. All conditions precedent and statutory prerequisites to filing suit have thus not been complied with. The notice requirements of Florida Statute 720.3085 are also not waived or relieved by section (5)(b) of the statute, as the section does not alleviate the requirement to provide some notice. 2. The Association’s books and records are improper and reflect an amount owing by the Defendant that is incorrect, specifically in that as the Defendant was not given proper notice of what amounts were owed, he was not able to pay the amounts as they came due, and was charged improper late fees. 3. The Association improperly delegated its duty to a community management association firm (“CAM firm”), as that term is defined by as that term is defined by Florida Statute 468.431 (2), in that the CAM firm performing management services for the Plaintiff is responsible for the management of 10 or more units or a budget of more than $100,000, and therefore must be licensed by the Florida Department of Business and Professional Regulation to provide association management services. The CAM firm performing management services for the Plaintiff is conducting unlicensed activity and thisimproper delegation is a breach of the fiduciary duty owed to the Defendant pursuant to Florida Statute 720.303(1). 4. Set-off: Defendant is entitled to a set-off of any amount claimed by the Plaintiff due to the violations as asserted in his Counterclaim, and any amount deemed owed to Counter-Defendant, pled below. DEMAND FOR ATTORNEYS FEES AND JURY TRIAL REQUEST That the Defendant was obligated to retain the undersigned as their attorney herein and is obligated to pay a reasonable fee herein. Defendant requests a jury trial in this matter. WHEREFORE, the Defendant moves this Honorable Court to dismiss the Complaint filed herein, award court costs and attorney’s fees necessitated by having to defend this action. COUNTERCLAIM Counter-Plaintiff, STEPHANE DUPOUX (“Dupoux”) , counter-sues AVANTI HOMEOWNERS ASSOCIATION (“Avanti HOA”), alleging as follows. PARTIES, JURISDICTION, VENUE and CONDITIONS PRECEDENT 1. This is an action for damages that exceeds $15,000, exclusive of interest and attorney's fees. 2. Counter-Plaintiff Dupoux is an individual, is Sui Juris, and has already submitted himself to the jurisdiction of this Court. 3. Counter-Defendant Avanti HOA is a Florida not-for-profit-Corporation and is a homeowners association in Miami-Dade County, Florida. 4. That the cause of action herein accrued in Miami-Dade County, Florida andsubject matter jurisdiction is invoked pursuant to Fla. Stat. §26.012. 5. Venue is proper by reason of Fla. Stat §47.011, because all or a substantial part of the events giving rise to Plaintiffs claims occurred in Miami-Dade County, Florida. 6. All conditions precedent have been met prior to the filing of this suit or the same has been excused as a matter of law. WHEREFORE, the Counter-Plaintiffs pray that this Honorable Court enter a judgment for damages against the Counter-Defendant herein together with interest, costs and attorney's fees. COUNT I- BREACH OF FIDUCIARY DUTY- VIOLATION OF FLA. STAT. 720.303(1) 7. Counter-Plaintiff incorporates by reference paragraphs 1 through 8 and repleads them herein. 8. Avant HOA, by and through its authorized agent, the President of Avanti HOA, has engaged and continues to engage presently, in harassing actions designed to harass, embarrass, and demean Counter-Plaintiff and Counter- Plaintiff's family; such actions were committed on the purported behalf of the Association and were within the scope of his duties as President. 9. Pursuant to Fla. Stat. 720.303(1), the officers and directors of an association have a fiduciary relationship to the members who are served by the association, including the Counter-Plaintiff. Such fiduciary duty includes the duty of dealing honestly and fairly, duty of loyalty, duty to treat members fairly, duty to use ordinary care and prudence in managing the property andfinancial affairs of the Association, and the duty to act reasonably in the exercise of the Association's discretionary powers including rulemaking, enforcement, and design-control powers. 10. Beginning around approximately January 2013, Avanti HOA, by and through its President, committed and continues to commit the following breaches of the fiduciary duty owed to the Counter-Plaintiff, causing him actual damages: - Disseminating for no lawful purpose reputation-damaging information regarding the Counter-Plaintiff, posting in online newspapers or news forums that the Counter-Plaintiff is delinquent in his assessments, is in foreclosure proceedings, is delinquent in his debts and responsibilities and is otherwise a “deadbeat,” for the purpose of harassing and embarrassing Counter-Plaintiff. - Has prevented Counter-Plaintiff from receiving his mail by placing signs on the mailbox that no one occupies the property, with the intention of obstructing mail from Counter-Plaintiff and harassing him. - Has repeatedly harassed Counter-Plaintiffs children, preventing their use of the common areas and from the full use and enjoyment of Counter- Plaintiff's property, by telling them that they cannot ride their bicycles in front of Counter-Plaintiff's home, and by harassing and embarrassing Counter-Plaintiff's children and instructing them that they cannot use the common areas or recreational facilities even as guests of other resident children. 11. The foregoing actions have caused Counter-Plaintiff actual damages andcontinually impair his right to enjoyment and use of his property and the Association’s common areas and recreational facilities. The harassing actions have embarrassed and harassed the Counter-Plaintiff and his family, have caused emotional injury and damage to his reputation, good character, and standing in the community, and have damaged his credit-worthiness. The harassing actions are being continually employed and thereby constitute a present and continuing breach of the fiduciary duty owed to Counter-Plaintiff pursuant to Fla. Stat. 720.303(1). 12.Counter-Plaintiff has been obligated to retain the undersigned as its attorney herein and is obligated to pay a reasonable fee therefore. WHEREFORE, the Counter-Plaintiff prays that this Honorable Court enter a judgment for damages against the Counter-Defendant herein together with interest, costs and attorney’s fees. COUNT II- VIOLATION OF FLA. STAT. 720.304 13. Counter-Plaintiff incorporates by reference paragraphs 1 through 8 and repleads them herein. 14. Avant HOA, by and through its authorized agent, the President of Avanti HOA, has engaged and continues to engage presently, in harassing actions designed to harass, embarrass, and demean Counter-Plaintiff and Counter- Plaintiff's family; such actions were committed on the purported behalf of the Association and were within the scope of his duties as President. 15. Beginning around approximately January 2013, Avanti HOA, by and throughits President, committed and continues to commit the following violations of Fla. Stat. 720.304(1), causing him actual damages: - Has repeatedly harassed Counter-Plaintiff's children, preventing their use of the common areas and from the full use and enjoyment of Counter- Plaintiff's property, by telling them that they cannot ride their bicycles in front of Counter-Plaintiff's home, and by harassing and embarrassing Counter-Plaintiff's children and instructing them that they cannot use the common areas or recreational facilities even as guests of other resident children. 16. The foregoing actions have caused Counter-Plaintiff actual damages and continually impair his right to enjoyment and use of his property and the Association’s common areas and recreational facilities. 17. The harassing actions are being continually employed and thereby constitute a present and continuing violation Fla. Stat. 720.304(1), which states that “[a]ll common areas and recreational facilities serving any homeowners’ association shall be available to parcel owners in the homeowners’ association served thereby and their invited guests for the use intended for such common areas and recreational facilities.” 18. Counter-Plaintiff has been obligated to retain the undersigned as its attorney herein and is obligated to pay a reasonable fee therefore. WHEREFORE, the Counter-Plaintiff prays that this Honorable Court enter a judgment for damages against the Counter-Defendant herein together with interest, costs and attorney’s fees.COUNT III- VIOLATION OF THE FLORIDA CONSUMER COLLECTION PRACTICES ACT 19. Counter-Plaintiff incorporates by reference paragraphs 1 through 8 and repleads them herein. 20. This is an action pursuant to the Florida Consumer Collection Practices Act for violations of Fla. Stat. 559.72(5), (7), (8) and (14). The President of Avanti HOA has committed the following acts of harassment on behalf of Avanti HOA in the course of attempting to collect a consumer debt from the Counter- Plaintiff; by virtue of such harassment, the President has attempted to coerce payment of association assessments through acts designed to harass, embarrass and demean Counter-Plaintiff. 2 . Avant HOA, by and through its authorized agent, the President of Avanti HOA, has engaged and continues to engage presently, in harassing actions designed to harass, embarrass, and demean Counter-Plaintiff and Counter- Plaintiff's family; such actions were committed on the purported behalf of the Association and were within the scope of his duties as President. Beginning around approximately January 2013, Avanti HOA, by and through its President, committed and continues to commit the following violations of Fla. Stat. 559.72, causing him actual damages: - Disseminating for no lawful purpose reputation-damaging information regarding the Counter-Plaintiff, posting in online newspapers or news forums that the Counter-Plaintiff is delinquent in his assessments, is in foreclosure proceedings, is delinquent in his debts and responsibilities and is otherwise a “deadbeat,” for the purpose of harassing and embarrassingCounter-Plaintiff. - Has prevented Counter-Plaintiff from receiving his mail by placing signs on the mailbox that no one occupies the property, with the intention of obstructing mail from Counter-Plaintiff and harassing him. - Has repeatedly harassed Counter-Plaintiff's children, preventing their use of the common areas and from the full use and enjoyment of Counter- Plaintiff's property, by telling them that they cannot ride their bicycles in front of Counter-Plaintiff's home, and by harassing and embarrassing Counter-Plaintiffs children and instructing them that they cannot use the common areas or recreational facilities even as guests of other resident children. 22. The foregoing actions have caused Counter-Plaintiff actual damages and continually impair his right to enjoyment and use of his property and the Association’s common areas and recreational facilities. The harassing actions have embarrassed and harassed the Counter-Plaintiff and his family, have caused emotional injury and damage to his reputation, good character, and standing in the community, and have damaged his credit-worthiness. The harassing actions are being continually employed and thereby constitute present and continuing violations of Fla. Stat. 559.72, specifically violations of Fla. Stat. 559.72(5), (7), (8) and (14). 23. Counter-Defendant’s violations have caused actual damages and also entitle Counter-Plaintiff to the recovery of statutory damages, attorney’s fees and costs pursuant to Fla. Stat. 559.77(2). Counter-Plaintiff has been obligated toretain the undersigned as its attorney herein and is obligated to pay a reasonable fee therefore. WHEREFORE, the Counter-Plaintiff prays that this Honorable Court enter a judgment for damages against the Counter-Defendant herein together with interest, costs and attorney's fees. JURY TRIAL DEMAND Counter-Plaintiff requests a jury trial in this Counterclaim. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy was e-mailed on July 26, 2013 to: Shantrell L. Lewis, Esq., Bakalar & Associates, P.A., 150 South Pine Island Road, Ste 450, Plantation, FL 33324; email: lewis-litigation@assoc-law.com. NEUSTEIN LAW GROUP, P.A. Attorneys for Defendant 777 Arthur Godfrey Road, Second Floor Miami Beach, FL 33140 Telephone: (305) 531-2545 Telefax: (305) 531-2365 Primary Email: NLGLaw@yahoo.com Secondary Email: Natalia@neusteinlaw.com. By:___/s/Vanessa Jaleh Bravo VANESSA JALEH BRAVO FLORIDA BAR NO.: 87924