Preview
Filing #66864967 E-Filed 01/22/2018 05:12:43 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
NORTHWEST FEDERAL CREDIT
UNION,
Plaintiff,
Vs. Case Number: 2017-CA-009712-O
MARTHA MENDOZA and RAFAEL
BAEZ, jointly and severally,
Defendants.
GUARDIAN, PAUL ROLDAN’S, MOTION TO DISMISS COUNTS I, I, AND IV OF
PLAINTIFF, NORTHWEST FEDERAL CREDIT UNION’S, COMPLAINT, ON
BEHALF OF DEFENDANT/WARD, MARTHA MENDOZA
COMES NOW, Paul Roldan, Plenary Guardian of the Person and Property of Ward and
Defendant, MARTHA MENDOZA, by and through their undersigned counsel and pursuant to Fla.
R. Civ. Pro. 1.140, hereby files their Motion to Dismiss Counts I, III, and IV of Plaintiff, Northwest
Federal Credit Union’s, Complaint, and state as follows:
1 On October 9, 2017, Paul Roldan (hereinafter “Guardian”) was appointed as
Plenary Guardian of the Person and Property of Ward and Defendant, MARTHA MENDOZA
(hereinafter “Defendant”). A copy of the order appointing Paul Roldan as Plenary Guardian is
attached hereto as Exhibit A.
2 Pursuant to Fla. R. Civ. P. § 744.441, Guardian sought court approval to defend the
instant claim against Defendant. On January 18, 2018, the Presiding Judge in the Ninth Judicial
Circuit, matter 2017-CP-002534-O, granted Guardian authority to defend the instant claim. A copy
of the Order Authorizing Guardian to Defend Claim on Ward’s Behalf is attached hereto as
Exhibit B.
BACKGROUND
This matter stems from a dispute regarding a written contract between Defendant, Co-
Defendant, RAFAEL BAEZ, and Plaintiff, as the lender, regarding the financing of an automobile.
Plaintiff, Northwest Federal Credit Union, provides financial banking services on multiple levels,
including those outside of vehicles loans.
ARGUMENT
1 Counts I, III, and IV Plaintiffs Complaint allege, respectively, Note, Money Lent,
and Unjust Enrichment.
2. Plaintiff's Complaint alleges Plaintiff “sold the property at public/private sale”
following repossession of the subject automobile. (Complaint § 14-15.)
2
3 Counts I, II] and IV should be dismissed for failure to state a cause of action. As a
matter of law, Plaintiff is restricted to a deficiency claim after it has disposed of the repossessed
property.
4. Defendant acknowledges that in most circumstances a plaintiff may concurrently
pursue a note claim along with a foreclosure claim. The U.C.C. provides that once default has
occurred, a secured creditor is authorized to take or retain possession of the collateral while
simultaneously pursuing a judgment under the note. See § 679.609(1)(a) & (2), Fla. Stat. (2009).
A broad menu of claims remains available even after a plaintiff repossesses collateral as long as it
has not been “disposed” of. See Spellman v. Indep. Bankers' Bank of Florida, 161 So. 3d 505 (Fla.
5th DCA 2014) (plaintiff allowed to continue with note claim after repossession of collateral that
it placed with a subsidiary without selling to a third party since such transfer did not meet the
definition of “disposed” under Fla. Stat. § 679.610).
5 However, if the collateral has been repossessed and then sold to a third party (i.e.,
“disposed”), then at that point a plaintiff is limited to seeking a deficiency judgment. See Fla. Stat.
§ 679.615.
6 This limitation is necessary because to allow a plaintiff to pursue a note claim after
disposing of collateral would result in an avoidance of the deficiency judgment process that
includes protections for debtors (e.g., notice of sale, reasonableness of sale). This concept was
explored by the 3d DCA in Farah v. Iberia Bank, 47 So. 3d 850, 851 (Fla. 3d DCA 2010) where
the court held:
The effect and purpose of this ruling is to prevent the circumvention of the process
required to establish the right to a deficiency judgment, which prominently includes
a valuation of the mortgaged property. See Century Group, Inc. v. Premier Fin.
Servs. East, L.P., 724 So.2d 661 (Fla. 2d DCA 1999). In other words, we
disapprove any effort — including those already undertaken by the appellee in this
case — to reach the personal assets of the mortgagor until, unless, and only to the
extent that a deficiency judgment is rendered after an appropriate exercise of the
trial court’s discretion in accordance with applicable principles of law and equity.
7
This narrowing of the Plaintiff’s options for recovery after disposal of the collateral
can be analyzed as an election of remedies or as a simple operation of law. Previously under the
common of the state of Florida, a creditor who repossesses and sells collateral had no right to a
deficiency. See Voges v. Ward, 123 So. 785, 793 (Fla. 1929) (“Our decisions are clear to the effect
that in a conditional sale, the seller cannot sue the purchaser on the debt and retain his title to, and
right to take back the possession of, the property; nor can he take back the property and then sue
to recover the debt; nor has he power to grant to another any right to pursue these inconsistent
remedies.”), When the Florida legislature enacted this state’s version of the U.C.C., it “abrogated
the common law doctrine of the election of remedies and authorized the rendition of a judgment
in favor of the creditor for such deficiency as may result from the sale.” Swindel v. Gen. Fin. Corp.
of Fla., 265 So. 2d 393, 395 (Fla. Ist DCA 1972). As a statute in derogation of the common law,
the U.C.C. must be strictly construed. See Burchfield v. Realty Executives, 971 So. 2d 138, 139
(Fla. Sth DCA 2007).
8 In reviewing the relevant sections of Florida’s U.C.C., e.g., Fla. Stat. § 679.615, it
is apparent that once the repossessed property has been disposed of, the only stated path for
additional recovery is a deficiency action. See Ayares-Eisenberg Perrine Datsun, Inc. v. Sun Bank
of Miami, 455 So. 2d 525 (Fla. 3d DCA 1984) (Bank, which had repossessed debtor’s collateral,
was precluded from suing directly on underlying note until fulfilling requirements of U.C.C.’s
deficiency procedures).
9 Accordingly, now that the Plaintiff has repossessed and disposed of the collateral
it is limited to a cause of action under the deficiency statute.
WHEREFORE, for the reasons stated above, Defendant respectfully requests this Court
enter an order dismissing Counts I, III, and IV of Plaintiff's Complaint and for such other and
further relief as the Court deems just and proper.
[certificate of service on following page]
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 11 "hay of January, 2018 the foregoing was
electronically filed via the Florida Courts e-filing portal, and that a true and correct copy has been
furnished _ electronically, to: Stacey S. Fisher, Esq., Sprechman & Fisher, PA,
pleadings@sprechmanlaw.com, 2775 Sunny Isles Boulevard, Suite 100, Miami, Florida 33160-
6289; Benjamin C. Isenman, bisenman@swannhadley.com, Swann Hadley Stump Dietrich, &
Spears, P.A., P.O. Box 1961, Winter Park, Florida 32790
Renée ermette Pepp|
Florida Bar No.: 008 2
Email: rpeppy@kirsonfuller.com
Ashley Roof
Florida Bar No. 125110
E-mail: aroof@kirsonfuller.com
The Elder Law Center of Kirson & Fuller
801 N. Magnolia Avenue, Suite 204
Orlando, Florida 32803
Telephone: (407) 422-3017
Fax: (407) 849-1707
Attorneys for Paul Roldan
EXHIBIT A
10/9/2017 11:14 AM FILED IN OFFICE TIFFANY MOORE RUSSELL CLERK CIRCUIT COURT ORANGE CO FL
IN THE CIRCUIT COURT FOR ORANGE COUNTY,
FLORIDA PROBATE DIVISION
IN RE: GUARDIANSHIP OF
File No.
MARTHA MENDOZA 2017-CP-002534-O
Division 01
ORDER APPOINTING PLENARY GUARDIAN OF PERSON AND PROPERTY
(Total incapacity - advance directive)
On the petition of Paul Roldan for the appointment of a plenary guardian of the person and
property of Martha Mendoza (the Ward), the Court finding that the Ward is totally incapacitated as
adjudicated by order of this Court entered October 9, 2017, and that it is necessary for a plenary
guardian to be appointed for the person and property of the Ward, it is
ADJUDGED as follows
1 Paul Roldan is qualified to serve and is hereby appointed plenary guardian of the
person and property of Martha Mendoza.
a
2 Upon taking the pre: scribed 0% filing designation of resident agent and acceptance
and posting bond in the amount of $ payable to the Governor of the State of Florida and to
all successors in office, conditioned on the faithful performance of all duties by the guardian, letters
of guardianship shall be issued.
3 The guardian must place the following property of the Ward: NONE
in a restricted account in a financial institution designated pursuant to Florida Statutes Section
69.031
The court finds that the Ward, prior to incapacity, appointed a health care surrogate
pursuant to Florida Statutes Chapter 765. Such advance directive:
ire is superseded and the guardian shall exercise all delegable rights otherwise assigned
to the health care surrogate.
Shall remain in effect until further order of this court.
Shall remain effect to the following extent:
ORDERED on Lith F- 2017.
Honorgéfe José R. BAériguer-Cire
N=
Judge
EXHIBIT B
1/18/2018 11:51 AM FILED IN OFFICE TIFFANY M. RUSSELL CLERK CIRCUIT COURT ORANGE CO FL
IN THE CIRCUIT COURT FOR ORANGE COUNTY,
FLORIDA PROBATE DIVISION
IN RE: GUARDIANSHIP OF
MARTHA MENDOZA File No.
2017-CP-002534-O
Ward
Division: 01
ORDER AUTHORIZING GUARDIAN TO
DEFEND CLAIM ON WARD'S BEHALF
On the Petition of PAUL ROLDAN, in his capacity as Plenary Guardian of the Person
and Property of MARTHA MENDOZA, for Authorization to Defend Claim, and the Court
having reviewed the petition and exhibit and being duly advised in the premises, it is
ADJUDGED as follows:
(i) The Petition for Authorization to Defend Claim is hereby GRANTED; and
(ii) The Guardian is authorized to retain Ashley Roof, Esq., of The Elder Law Center
of Kirson & Fuller, as legal counsel to prosecute said claims on the Ward’s behalf; and
(iii) Compensation for the professional services shall be remitted from the assets of the
Ward,
ONE and ORDERED at Orlando, Orange County, Florida on this (7 day of
018.
HON. J. THORPE
Cireui ge
Preview
Filing #66864967 E-Filed 01/22/2018 05:12:43 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA NORTHWEST FEDERAL CREDIT UNION, Plaintiff, Vs. Case Number: 2017-CA-009712-O MARTHA MENDOZA and RAFAEL BAEZ, jointly and severally, Defendants. GUARDIAN, PAUL ROLDAN’S, MOTION TO DISMISS COUNTS I, I, AND IV OF PLAINTIFF, NORTHWEST FEDERAL CREDIT UNION’S, COMPLAINT, ON BEHALF OF DEFENDANT/WARD, MARTHA MENDOZA COMES NOW, Paul Roldan, Plenary Guardian of the Person and Property of Ward and Defendant, MARTHA MENDOZA, by and through their undersigned counsel and pursuant to Fla. R. Civ. Pro. 1.140, hereby files their Motion to Dismiss Counts I, III, and IV of Plaintiff, Northwest Federal Credit Union’s, Complaint, and state as follows: 1 On October 9, 2017, Paul Roldan (hereinafter “Guardian”) was appointed as Plenary Guardian of the Person and Property of Ward and Defendant, MARTHA MENDOZA (hereinafter “Defendant”). A copy of the order appointing Paul Roldan as Plenary Guardian is attached hereto as Exhibit A. 2 Pursuant to Fla. R. Civ. P. § 744.441, Guardian sought court approval to defend the instant claim against Defendant. On January 18, 2018, the Presiding Judge in the Ninth Judicial Circuit, matter 2017-CP-002534-O, granted Guardian authority to defend the instant claim. A copy of the Order Authorizing Guardian to Defend Claim on Ward’s Behalf is attached hereto as Exhibit B. BACKGROUND This matter stems from a dispute regarding a written contract between Defendant, Co- Defendant, RAFAEL BAEZ, and Plaintiff, as the lender, regarding the financing of an automobile. Plaintiff, Northwest Federal Credit Union, provides financial banking services on multiple levels, including those outside of vehicles loans. ARGUMENT 1 Counts I, III, and IV Plaintiffs Complaint allege, respectively, Note, Money Lent, and Unjust Enrichment. 2. Plaintiff's Complaint alleges Plaintiff “sold the property at public/private sale” following repossession of the subject automobile. (Complaint § 14-15.) 2 3 Counts I, II] and IV should be dismissed for failure to state a cause of action. As a matter of law, Plaintiff is restricted to a deficiency claim after it has disposed of the repossessed property. 4. Defendant acknowledges that in most circumstances a plaintiff may concurrently pursue a note claim along with a foreclosure claim. The U.C.C. provides that once default has occurred, a secured creditor is authorized to take or retain possession of the collateral while simultaneously pursuing a judgment under the note. See § 679.609(1)(a) & (2), Fla. Stat. (2009). A broad menu of claims remains available even after a plaintiff repossesses collateral as long as it has not been “disposed” of. See Spellman v. Indep. Bankers' Bank of Florida, 161 So. 3d 505 (Fla. 5th DCA 2014) (plaintiff allowed to continue with note claim after repossession of collateral that it placed with a subsidiary without selling to a third party since such transfer did not meet the definition of “disposed” under Fla. Stat. § 679.610). 5 However, if the collateral has been repossessed and then sold to a third party (i.e., “disposed”), then at that point a plaintiff is limited to seeking a deficiency judgment. See Fla. Stat. § 679.615. 6 This limitation is necessary because to allow a plaintiff to pursue a note claim after disposing of collateral would result in an avoidance of the deficiency judgment process that includes protections for debtors (e.g., notice of sale, reasonableness of sale). This concept was explored by the 3d DCA in Farah v. Iberia Bank, 47 So. 3d 850, 851 (Fla. 3d DCA 2010) where the court held: The effect and purpose of this ruling is to prevent the circumvention of the process required to establish the right to a deficiency judgment, which prominently includes a valuation of the mortgaged property. See Century Group, Inc. v. Premier Fin. Servs. East, L.P., 724 So.2d 661 (Fla. 2d DCA 1999). In other words, we disapprove any effort — including those already undertaken by the appellee in this case — to reach the personal assets of the mortgagor until, unless, and only to the extent that a deficiency judgment is rendered after an appropriate exercise of the trial court’s discretion in accordance with applicable principles of law and equity. 7 This narrowing of the Plaintiff’s options for recovery after disposal of the collateral can be analyzed as an election of remedies or as a simple operation of law. Previously under the common of the state of Florida, a creditor who repossesses and sells collateral had no right to a deficiency. See Voges v. Ward, 123 So. 785, 793 (Fla. 1929) (“Our decisions are clear to the effect that in a conditional sale, the seller cannot sue the purchaser on the debt and retain his title to, and right to take back the possession of, the property; nor can he take back the property and then sue to recover the debt; nor has he power to grant to another any right to pursue these inconsistent remedies.”), When the Florida legislature enacted this state’s version of the U.C.C., it “abrogated the common law doctrine of the election of remedies and authorized the rendition of a judgment in favor of the creditor for such deficiency as may result from the sale.” Swindel v. Gen. Fin. Corp. of Fla., 265 So. 2d 393, 395 (Fla. Ist DCA 1972). As a statute in derogation of the common law, the U.C.C. must be strictly construed. See Burchfield v. Realty Executives, 971 So. 2d 138, 139 (Fla. Sth DCA 2007). 8 In reviewing the relevant sections of Florida’s U.C.C., e.g., Fla. Stat. § 679.615, it is apparent that once the repossessed property has been disposed of, the only stated path for additional recovery is a deficiency action. See Ayares-Eisenberg Perrine Datsun, Inc. v. Sun Bank of Miami, 455 So. 2d 525 (Fla. 3d DCA 1984) (Bank, which had repossessed debtor’s collateral, was precluded from suing directly on underlying note until fulfilling requirements of U.C.C.’s deficiency procedures). 9 Accordingly, now that the Plaintiff has repossessed and disposed of the collateral it is limited to a cause of action under the deficiency statute. WHEREFORE, for the reasons stated above, Defendant respectfully requests this Court enter an order dismissing Counts I, III, and IV of Plaintiff's Complaint and for such other and further relief as the Court deems just and proper. [certificate of service on following page] CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 11 "hay of January, 2018 the foregoing was electronically filed via the Florida Courts e-filing portal, and that a true and correct copy has been furnished _ electronically, to: Stacey S. Fisher, Esq., Sprechman & Fisher, PA, pleadings@sprechmanlaw.com, 2775 Sunny Isles Boulevard, Suite 100, Miami, Florida 33160- 6289; Benjamin C. Isenman, bisenman@swannhadley.com, Swann Hadley Stump Dietrich, & Spears, P.A., P.O. Box 1961, Winter Park, Florida 32790 Renée ermette Pepp| Florida Bar No.: 008 2 Email: rpeppy@kirsonfuller.com Ashley Roof Florida Bar No. 125110 E-mail: aroof@kirsonfuller.com The Elder Law Center of Kirson & Fuller 801 N. Magnolia Avenue, Suite 204 Orlando, Florida 32803 Telephone: (407) 422-3017 Fax: (407) 849-1707 Attorneys for Paul Roldan EXHIBIT A 10/9/2017 11:14 AM FILED IN OFFICE TIFFANY MOORE RUSSELL CLERK CIRCUIT COURT ORANGE CO FL IN THE CIRCUIT COURT FOR ORANGE COUNTY, FLORIDA PROBATE DIVISION IN RE: GUARDIANSHIP OF File No. MARTHA MENDOZA 2017-CP-002534-O Division 01 ORDER APPOINTING PLENARY GUARDIAN OF PERSON AND PROPERTY (Total incapacity - advance directive) On the petition of Paul Roldan for the appointment of a plenary guardian of the person and property of Martha Mendoza (the Ward), the Court finding that the Ward is totally incapacitated as adjudicated by order of this Court entered October 9, 2017, and that it is necessary for a plenary guardian to be appointed for the person and property of the Ward, it is ADJUDGED as follows 1 Paul Roldan is qualified to serve and is hereby appointed plenary guardian of the person and property of Martha Mendoza. a 2 Upon taking the pre: scribed 0% filing designation of resident agent and acceptance and posting bond in the amount of $ payable to the Governor of the State of Florida and to all successors in office, conditioned on the faithful performance of all duties by the guardian, letters of guardianship shall be issued. 3 The guardian must place the following property of the Ward: NONE in a restricted account in a financial institution designated pursuant to Florida Statutes Section 69.031 The court finds that the Ward, prior to incapacity, appointed a health care surrogate pursuant to Florida Statutes Chapter 765. Such advance directive: ire is superseded and the guardian shall exercise all delegable rights otherwise assigned to the health care surrogate. Shall remain in effect until further order of this court. Shall remain effect to the following extent: ORDERED on Lith F- 2017. Honorgéfe José R. BAériguer-Cire N= Judge EXHIBIT B 1/18/2018 11:51 AM FILED IN OFFICE TIFFANY M. RUSSELL CLERK CIRCUIT COURT ORANGE CO FL IN THE CIRCUIT COURT FOR ORANGE COUNTY, FLORIDA PROBATE DIVISION IN RE: GUARDIANSHIP OF MARTHA MENDOZA File No. 2017-CP-002534-O Ward Division: 01 ORDER AUTHORIZING GUARDIAN TO DEFEND CLAIM ON WARD'S BEHALF On the Petition of PAUL ROLDAN, in his capacity as Plenary Guardian of the Person and Property of MARTHA MENDOZA, for Authorization to Defend Claim, and the Court having reviewed the petition and exhibit and being duly advised in the premises, it is ADJUDGED as follows: (i) The Petition for Authorization to Defend Claim is hereby GRANTED; and (ii) The Guardian is authorized to retain Ashley Roof, Esq., of The Elder Law Center of Kirson & Fuller, as legal counsel to prosecute said claims on the Ward’s behalf; and (iii) Compensation for the professional services shall be remitted from the assets of the Ward, ONE and ORDERED at Orlando, Orange County, Florida on this (7 day of 018. HON. J. THORPE Cireui ge