Order: NORTHWEST FEDERAL CREDIT UNION vs. MENDOZA, MARTHAet al.

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                                Filing # 78060807 E-Filed 09/18/2018 02:13:39 PM


                                   IN THE CIRCUIT         COURT      OF THE NINTH         JUDICIAL CIRCUIT
                                               IN AND FOR        ORANGE       COLTNTY. FLORIDA

                                                                                                  Case   No.  2017  -C A-0097   l2-O

                 NORTHWEST          FEDERAL CREDIT UNION,

                          Plaintiff,



                 MARTHA        MENDOZA,        an individual;
                 and RAFAEL       BAEZ,
                 an individual, jointly    and severally,

                          Defendants.
                                                     /


                                           ORDER       GRANTING         DEFENDANTS'           MOTIONS
                                                  TO   DISMISS      WITHOUT         PREJUDICE

                          THIS   CAUSE,      having come     before this  Court   on September 13, 2018        on the Defendants',

                 Martha   Mendoza     and Rafael    Baez's,   Motion    to Dismiss Complaint,       and this Court, having     heard

                 the arguments     ofcounsel and being duly       advised in the matter,     it is hereby;

                          ORDERED        AND    ADJUDGED         as follows:


                           l.      This   matter    involves    a  dispute    between a      lender   (Plaintiffl   and borrowers

                  (Defendants)    regarding   ar agreement     to finance an automobile.

                          2.       Defendants failed to make       payment due on said financing        agreement,    at which time


                  there  was still a balance   due to Plaintiff.

                           3.      Plaintiff  subsequently    repossessed    the automobile pwsuant        to the security interest

                  retained by the terms offinancing        agteement and sold the automobile          at a public/private    sale.


                           4.       Proceeds   of  said sale were applied     to the balance owed      to Plaintiff  by Defendants

                  and after appropriate     adjustments    for prepaid   interests and/or   insurance and costs ofrepossession
                 and sale of the property Defendants owed a remaining              balancing   to Plaintiff  of $25,225.92.

                          5.       On November 2,2017,          Plaintiff filed  a Complaint    alleging   four  causes of actions:

                 (Count I) Note;    (Count  II) Deficiency;    (Count   III)Money    Lent;  and (Count    IV)  Unjust  Enrichment.

                          6.       On January     l, 2018, Defendants      filed a Motion to Dismiss      Counts    I, IIIand  IV  for

                 failure to state a cause   ofaction.   Defendants argued      the Plaintiffis   restricted  to a deficiency claim

                 (Count   II) after it has disposed ofthe     repossessed    property   as a matter of law.


                          7.       The   Florida Rules    of  Civil  Procedure require     that a complaint     include   a cause   of
                 action and a short   and plain   statement   of the facts which shows      that the Plaintiffis  entitled  to relief.

                 Fla. R. Civ.  P. $ 1.1 10(b)

                          8.       If collateral  has been   repossessed    and then sold to a third    party (i.e.,  ',disposed,,), a

                 plaintiffis  limited  to seeking a deficiency     judgement.     See  Fla. Stat.  $ 679.615.

                          9.       Due to the PlaintifFs     repossession    and ultimate sale of the automobile,       the Plaintiff

                 is limited  to seeking a deficiency     judgement.

                          10.      The   Defendants' Motion       to Dismiss Counts      I, III and IV   of  Plaintifls   Compliant

                 for failure to state a cause of action     is hereby, GRANTED.

                          11.      The   Plaintiff  shall  have twenty (20)      days  from   the  date  of  this  Order   to file an

                 Amended     Complaint.                                                                                              na
                           DONE     AND     ORDERED        in Chambers      in Orlando, Orange      County,    Florida on rhi,   1b
                 day  of September     2018.

                                                                                      'v                -
                                                                                Hon.   Kevin B. Weiss
                                                                                Circuit Court    Judge
                                                          CERTIFICATE        OF SERVICE

                           I HEREBY      CERTIFY      that the foregoing    was filed with the Clerk of the Court rhis      _LEI-
                            <--
                   day of  J.   -4 ;/p/   ,  201 8, by using the Florida    Couts    E-Filing  Portal System. Accordingly, a

                   copy of the foregoing     is being served   on this day to all attorney(s/interested      parties  identified on

                   the ePortal Electronic    Service List, via transmission     of Notices   ofElectronic    Filing  generated   by

                   the ePortal System.


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