North Star Capital Acquisitions, LLC v. Krig
| Decision Date | 21 April 2009 |
| Docket Number | No. 3:07-cv-265-J-32MCR.,No. 3:07-cv-264-J-32MCR.,No. 3:07-cv-266-J-32MCR.,3:07-cv-264-J-32MCR.,3:07-cv-265-J-32MCR.,3:07-cv-266-J-32MCR. |
| Citation | 611 F.Supp.2d 1324 |
| Parties | NORTH STAR CAPITAL ACQUISITIONS, LLC, Plaintiff, v. Lynn S. KRIG, Defendant, Capital One Bank, Plaintiff, v. Jean C. Miller, Defendant, Capital One Bank, Plaintiff, v. Mary B. Livingston, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Barry A. Postman, Rachel Kate Beige, S. Jonathan Vine, Cole, Scott & Kissane, PA, West Palm Beach, FL, Robert J. Orovitz, Hayt, Hayt & Landau, Miami, FL, Robert E. O'Quinn, Jr., Cole, Scott & Kissane, PA, Jacksonville, FL, for Plaintiff.
Bambi Lynn Drysdale, Jacksonville Area Legal Aid, Inc., George E. Ridge, Tiffiny Douglas Safi, Cooper, Ridge & Lantinberg, PA, Jacksonville, FL, for Defendant.
These cases are before the Court on counterclaim defendants Robert J. Orovitz and Robert J. Orovitz P.A's (collectively "Orovitz") motions for summary judgment (Doc. 69 in North Star, 3:07-cv-264; Doc. 95 in Capital One, 3:07-cv-265); counterclaim defendant North Star Capital Acquisitions, LLC's Motion for Summary Judgment (Doc. 70 in North Star, 3:07-cv-264); counterclaim defendant Capital One Bank's Motion for Summary Judgment (Doc. 98 in Capital One, 3:07-cv-265), and counterclaim plaintiffs Lynn S. Krig, Jean C. Miller and Mary B. Livingston's Consolidated Response thereto. (Doc. 73 in North Star, 3:07-cv-264; Doc. 102 in Capital One, 3:07-cv-265.) The Court held a hearing on December 17, 2008, the record of which is incorporated herein. (Doc. 76 in North Star, 3:07-cv-264.) Following the hearing, the parties submitted supplemental briefs. (Docs. 80, 81 in North Star, 3:07-cv-264, Doc. 110 in Capital One, 3:07-cv-265.)
On September 25, 2006, North Star Capital Acquisitions, LLC, ("North Star") filed an amended complaint against Lynn S. Krig in County Court, Fourth Judicial Circuit, in and for Duval County, Florida, alleging breach of contract, account stated, and money lent. (See Doc. 2 in North Star, 3:07-cv-264.) On August 21, 2006 and November 7, 2006, Capital One Bank ("Capital One") filed two separate amended complaints against Jean C. Miller and Mary B. Livingston in Florida state court raising substantially similar claims as those alleged in North Star. (See Doc. 2 in Capital One, 3:07-cv-265; Doc. 2 in Capital One 3:07-cv-266.) In response to the North Star and Capital One complaints, Krig, Miller and Livingston filed separate Answers and Amended Class Action Counterclaims against North Star and Capital One, their former attorney, Robert J. Orovitz, and the attorney's law firm, Robert J. Orovitz, P.A. (See Doc. 3 in North Star, 3:07-cv-264; Doc. 5 in Capital One, 3:07-cv-265; Doc. 3 in Capital One, 3:07-cv-266.) The defendants' counterclaims against the original plaintiffs and the newly added counterclaim defendants, Orovitz, are based in part on violations of the federal Fair Debt Collection Practices Act. See 15 U.S.C. § 1692.
Orovitz timely removed the cases pursuant to 28 U.S.C. §§ 1331, 1441, 1446 on the basis of federal question jurisdiction. This Court denied motions to remand in all cases and ordered a response to counterclaim defendants' earlier motion to dismiss for failure to state a claim. (See e.g. Doc. 31 in North Star, 3:07-cv-264.) The Court subsequently denied counterclaim defendants' motions to dismiss. (Doc. 33 in 3:07-cv-264.) However, the Court decided to require discovery and dispositive motion practice as to the merits of the litigation before entertaining a class certification motion. When a dispute arose regarding the necessity of actual damages for a viable abuse of process claim, Christine Brannon, a counterclaim plaintiff with actual damages, removed her case from state court by agreement of the parties, see Doc. 1 in 3:08-cv-1016, and now is a party herein.
Summary judgment is proper where "there is no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). "The burden of demonstrating the satisfaction of this standard lies with the movant, who must present pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that establish the absence of any genuine material, factual dispute." Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1252-53 (11th Cir. 2003) (internal quotations omitted). An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether summary judgment is appropriate, a court must draw inferences from the evidence in the light most favorable to the nonmovant and resolve all reasonable doubts in that party's favor. Centurion Air Cargo, Inc. v. United Parcel Serv. Co., 420 F.3d 1146, 1149 (11th Cir.2005).
Counterclaim plaintiffs are purported debtors of North Star and Capital One. Each counterclaim plaintiff was sued in county court in connection with those debts and served with a summons and complaint. Included with that service was a letter from Robert J. Orovitz and Hayt, Hayt & Landau ("Letter") as well as a document titled "Stipulation for Entry of Final Judgment Execution Withheld" ("Stipulation"). The Stipulation reads as follows:
COME NOW, the parties, and hereby stipulate and agree as follows:
1. That all of the allegations contained in Plaintiff's Complaint are true and correct.
2. Plaintiff is entitled to a Final Judgment Execution Withheld against the Defendant(s).
3. That the Defendant(s) shall comply with all of the terms and conditions as set forth within this stipulation and in the event that any payment is not received within five (5) days from the due date, then that shall constitute a default.
4. Defendant(s) must make all payments when due. Payment shall be mailed to Hayt, Hayt & Landau at their office address: 7765 SW 87 Ave, Suite 101 Miami, FL 33173. Payment(s) of more than the amount of the installment due or down payment shall not relieve the Defendant(s) of its obligations to make the next monthly payment on the date agreed to. In the event that Defendant(s) fail to make any payment when due then Plaintiff shall be entitled to an execution order for the full amount then owing plus costs, interest and reasonable attorneys' fees to be determined by the Court.
5. It is agreed that Plaintiff shall recover from the Defendant(s) the principal sum of $1,574.02, plus interest in the amount of $687.94, plus court costs in the amount of $ ____ plus attorneys fees in the amount of $ ______, and post judgment interest at the rate of 20.400% per annum, to be paid as follows: the sum of $ ____ due on or before _______ and the sum of $ ______ which shall be due on or before the ______ day of each month thereafter until paid in ful.
6. In the event of Defendant(s) default under the terms of the Stipulation and Plaintiff obtains an execution order, the Defendant(s) hereby agree(s) to waive any garnishment defenses that are waivable under Florida Statute 222.11.
7. A facsimile or copy of this stipulation may be treated as the original.
8. That in the event of default, Plaintiff shall be entitled to an Execution Order upon the filing of a verified notice of default and without notice to the Defendant(s).
9. This agreement has legal terms and has legal implications. You have the right to have an attorney review it for you. If you sign this agreement you are voluntarily agreeing to its terms and will be bound by it.
DATED on this ___ day of
_______, 20 __.
HAYT, HAYT & LANDAU
Attorney for Plaintiff
7765 SW 87 Avenue, Suite 101
Miami, FL 33713
BY: _____________________
_____________________
Robert J. Orovitz, Mary B. Livingston
See e.g. Doc 95-11 at 4-7 in Capital One, 3:07-cv-265.
The Letter, printed on firm letterhead, read as follows:
Dear Ms. Livingston:
You have now been served with a complaint by Capital One Bank to collect the outstanding balance on your account. I am enclosing for your review and signature a Stipulation for Entry of Final Judgment Execution Withheld. As you will note, the amount of the monthly payments has intentionally been left blank. Kindly contact my office upon receipt of this letter so that we may mutually agree to the terms and conditions of said stipulation. If we agree on an amount, you will not have to go to court. (This is your last opportunity to resolve this matter without going to court.)
Please understand that any information we obtain will be used for the purpose of collecting this debt.
If you have any questions or wish to discuss this matter in further detail please feel free to contact me.
See e.g. Doc 95-10 at 2 in Capital One, 3:07-cv-265. Counterclaim plaintiffs allege that the inclusion of these additional documents with the required service of process was improper and misleading.
The amended counterclaim complaints consist of the following causes of action: (1) Abuse of Process; (2) violations of the Florida Consumer Collection Practices Act ("FCCPA"); (3) violations of the Federal Fair Debt Collection Practices Act ("FDCPA"); and (4) violations of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"). See Doc. 3 in North Star, 3:07-cv-264; Doc. 3 in Capital One, 3:07-cv-265 and 3:07-cv-266.3 Counterclaim defendants have filed motions for summary judgment on all counts. Although the counterclaim defendants submitted separate motions, many of the arguments contained in those motions are the same. Accordingly, the Court...
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