DEGIRMENCI v. SAPPHIRE-FORT LAUDERDALE, LLLP

• Decision Date: 20 April 2010
• Docket Number: Case No. 09-60089-CIV.
• Citation: 693 F. Supp.2d 1325
• Parties: Gulbin DEGIRMENCI, Plaintiff, v. SAPPHIRE-FORT LAUDERDALE, LLLP, a Florida limited liability limited partnership; Altman Sapphire GP, LLC; Regions Financial Corporation, a Delaware corporation, Defendants.
• Court: U.S. District Court — Southern District of Florida

693 F. Supp.2d 1325

Gulbin DEGIRMENCI, Plaintiff, v.SAPPHIRE-FORT LAUDERDALE, LLLP, a Florida limitedliability limited partnership; Altman Sapphire GP, LLC; Regions Financial Corporation, a Delaware corporation, Defendants.

Case No. 09-60089-CIV.

United States District Court, S.D. Florida.

February 1, 2010.

Order Denying Reconsideration April 20, 2010.

James Daniel Ryan, Ryan & Ryan Attorneys PA, North Palm Beach, FL, William Dunbar Tucker, Fort Lauderdale, FL, for Plaintiff.

Bernard Lewis Egozi, Joseph Harris Rose, Egozi & Bennett, PA, Aventura, FL, for Defendants.

ORDER GRANTING MOTIONS TO DISMISS

WILLIAM P. DIMITROULEAS, District Judge.

THIS CAUSE is before the Court upon DefendantsSapphire-Fort Lauderdale, LLLP, Altman Sapphire GP, LLC, The Premier Sales Group, Inc., and Regions Financial Corporation's Motions to Dismiss DE-67, 68, 69, 77, respectively.The Court has carefully considered the Motions, Plaintiffs Responses DE-103, 114, 115, 116, Defendants' Replies DE-117, 118, 119, 120, and is otherwise fully advised in the premises.

I.BACKGROUND

Plaintiff filed the instant action on January 16, 2009.On June 30, 2009, this Court entered an order Granting in Part and Denying in Part DefendantsSapphire-Fort Lauderdale, LLLP and Altman Sapphire GP, LLC's Motion to Dismiss.On August 14, 2009, this Court entered an order Granting in Part Defendant Regions's Motion to Dismiss.Plaintiff filed the Amended Complaint on September 12, 2009.

DefendantSapphire—Fort Lauderdale, LLLP("Sapphire") is a Florida limited liability limited partnership, with its principal place of business in Broward County, Florida.DefendantAltman Sapphire GP, LLC("GP") is the general partner and has its principal place of business in Palm Beach County, Florida.They were the developers of the project at issue (collectively referred to as "Developer").DefendantRegions Financial Corporation("Regions") is a bank holding company and a financial holding company.DefendantThe Premier Sales Group, Inc.("Premier") is a Florida corporation that was the broker for the developers.

According to the Amended Complaint, Plaintiff entered into a preconstruction agreement with Developer to purchase a condominium unit in the Fort Lauderdale Beach area on January 21, 2006.The sale was for a unit in the Sapphire Fort Lauderdale Condominium and the purchase price was $480,000.00.The project was billed as luxury condominiums.The Purchase Agreement ("Agreement") required a 20% escrow deposit and provided that Plaintiff would be given thirty days advance notice of the closing.The closing would occur only after construction was complete and a certificate of occupancy issued, and in any event, no later than January 31, 2010.By October 6, 2006, she paid the $96,000.00 escrow deposit.

The Agreement provides that in the event of a buyer's default, the Developer may retain 15% of the purchase price as liquidated damages and seek specific performance.Specifically it reads as follows:

if Buyer defaults after fifteen percent (15%) of the Purchase Price, exclusive of interest, has been paid, Seller will refund to the Buyer any amount which remains from the payments Buyer made after subtracting fifteen percent (15%) of the Purchase Price, exclusive of interest.Any damage or loss that occurs to the Property while Buyer is in default will not affect Seller's right to liquidated damages.Buyer and Seller agree to this because there is no other precise method of determining Seller's damages.Seller may also seek to specifically enforce this Agreement.

Agreement DE-4-2, Ex. 13 ¶ 13.

The Amended Complaint goes on to allege that Regions provided the mortgage loan for the acquisition of the property on which the Project is being constructed and is providing mortgage loans for the construction of the Project.By way of assignments, transfer of rights, and creation of security interests, the Developer allegedly has ceded Regions significant authority and control over the Project.Thus, Plaintiff alleges, Regions has obtained a "super priority" security interest in all Purchase Agreements and purchaser escrow deposits, including Plaintiff's.The Amended Complaint alleges that the net effect is that the Developer cannot modify or cancel any Purchase Agreement or return any escrow deposits without first obtaining Region's approval.Therefore, Plaintiff puts forth that Regions has thereby become subject to the Interstate Land Sales Full Disclosure Act("ILSFDA").

In November 2008, Plaintiff informed the Developer that due to an adverse change in her personal financial circumstances, she would be unable to proceed with the purchase.She requested the return of her escrow deposit.The Developer refused, stating that it would not recognize her default until they gave her notice to close and she failed to do so.At that time, it would then retain the entire 20% escrow deposit.Developer informed Plaintiff that Regions would not allow it to recognize any purchaser default until the issuance of a certificate of occupancy and that it would not agree to the return of any escrow funds.The Amended Complaint alleges that this is Regions' institutional policy as it has a financial disincentive to pay the deposits under standby letters of credit.

Count I is a claim for declaratory judgment that the Developer and Regions have and are anticipated to violate one or more of the following statutes under the ILSDA: 15 U.S.C. §§ 1703(a)(1)(B)-(D) and 15 U.S.C. §§ 1703(a)(2)(A)-(C).She seeks a declaration that the Developer and Regions violated one or more statutes under the ILSFDA, a declaration that she is entitled to rescission, and an award of attorney's fees and costs pursuant to 15 U.S.C. § 1709 and the sales contract.Count II seeks an injunction against the Developer requiring it to make demand upon escrow agent Chicago Title Insurance Company to pay so much of plaintiff's escrow deposits as Plaintiff is determined to be entitled; an injunction against the Developer from further violations; an injunction against the Developer prohibiting it from seeking specific performance of the contract; a temporary injunction prohibiting Regions from the exercise of certain contractual rights over the Developer resulting in violations of plaintiff's rights under the ILSFDA; a permanent injunction prohibiting Regions from the exercise of certain contractual rights over the Developer with respect to Plaintiffs escrow deposit in violation of ILSFDA 15 U.S.C. § 1703(a)(2); and an injunction requiring Regions to pay under the letter of credit all sums due plaintiff in respect of her escrow deposits; and attorney's fees and costs pursuant to 15 U.S.C. § 1709 and/or the sales contract.Count III seeks rescission and the return of Plaintiff's deposit because the Developer has violated her rights under the ILSFDA—specifically, 15 U.S.C. §§ 1703(a)(1)(B)-(D)and15U.S.C. §§ 1703(a)(2)(A)-(C)—and thus that the Purchase Agreement is void and/or avoidable as against public policy.Plaintiff also seeks attorneys fees, prejudgment interest, and costs pursuant to 15, U.S.C. § 1709 and the sales contract.Count IV alleges two violations of Florida Statutes § 718.202.Plaintiff seeks rescission, the Court declaring the sales contract void, and for the return of her deposit plus interest and other damages pursuant to Florida Statutes § 718.202(5).Plaintiff is also seeking attorneys' fees and costs pursuant to Florida Statutes § 718.125.Count V seeks rescission and the return of her deposit because of Developer's false and misleading statements violated her rights under Florida Statutes § 718.506(1).Plaintiff is also seeking attorneys' fees and costs pursuant to Florida Statutes § 718.506(2).Count VI alleges that Developer's violation ILSFDA is a per se violation of FDUTPA.Plaintiff seeks an injunction enjoining the Developer from violating FDUTPA; an injunction enjoining the Developer from enforcing the sales contract; rescission of the contract; a declaratory judgment that the Developer has violated FDUTPA; a declaratory judgment that the Developer's failure to comply with ILSFDA and Florida Statutes Chapter 718 constitute violations of FDUTPA; and the return of her deposit.Plaintiff also seeks attorney's fees and costs pursuant to Florida Statutes § 501.211(2).Count VII claims that the Developer materially breached the contract, thereby excusing any further performance by the Plaintiff, Plaintiff seeks a full refund of all deposits and moneys paid by the Plaintiff pursuant to the contract.Plaintiff, if it is the prevailing party, seeks reasonable attorneys' fees, paralegal fees and costs (including on appeal) from the non-prevailing party, pursuant to the contract.Count VIII seemingly seeks a declaratory judgment that Plaintiff is in default, and then seeks specific performance requiring the Developer to perform the contract and return Plaintiff's deposit in excess of 15% of the sales price pursuant to the contract and awarding her attorneys fees, prejudgment interest, and costs pursuant to an unnamed Florida law.Count IX alleges the Developer is in anticipatory breach of the implied covenant of good faith under the sales contract concerning the viability of the Sapphire Fort Lauderdale Condominium Association.Plaintiff seeks rescission and the return of her deposit.Plaintiff also seeks her attorneys fees, prejudgment interest, and costs pursuant to an unnamed Florida law.Count X seeks an accounting and the attorneys fees, prejudgment interest, and costs pursuant to an unnamed Florida law and/or the sales contract.Count XI is a fraud in the inducement claim against the Developer.Plaintiff seeks rescission of the sales contract, the return of her deposit, damages including consequential damages, punitive damages, attorneys fees, prejudgment interest, and costs pursuant to an unnamed Florida law.Count XII is a claim for unjust enrichment against the Developer.Plaintif...