William P. Dimitrouleas

In Pinero v. Yam Margate, L.L.C., the plaintiff attempted substitute service of process on the defendant LLC under Florida long-arm statutes in a federal civil action. The defendant moved to quash the service, arguing it was executed under the wrong statute (§ 48.161 rather than § 48.181) and did not strictly comply with mailing requirements. The court granted the motion, ruling that the plaintiff failed to use the applicable statute for corporations concealing their whereabouts and did not provide proof of registered or certified mail notification after serving the Secretary of State. Service dated April 21, 2011, was quashed, and the plaintiff received an extension until September 9, 2011, to effect proper service or face dismissal without prejudice.

procedure

In Senter v. JPMorgan Chase Bank, N.A., homeowners who had entered into temporary Trial Period Plan agreements under the federal Home Affordable Modification Program (HAMP) sued Chase after the bank denied their requests for permanent loan modifications and initiated foreclosure proceedings. The plaintiffs alleged that their compliance with the TPP terms created an obligation for Chase to grant permanent modifications. The court granted the defendants' motion to dismiss the complaint. Its core reasoning was that the TPP agreements did not create an enforceable contractual right to a permanent modification and that related HAMP-based claims failed as a matter of law.

business & regulatoryproperty

The case involved plaintiffs suing their mortgage servicer for alleged harassing phone calls and property visits in connection with foreclosure proceedings on their home, asserting claims under the federal Fair Debt Collection Practices Act, the Florida Consumer Collection Practices Act, and for intentional infliction of emotional distress. The court granted summary judgment to the defendant on the FDCPA claim on the ground that the communications and conduct were undertaken to enforce a security interest rather than to collect a debt within the meaning of the federal statute. It denied summary judgment on the remaining state-law claims and remanded them to Florida state court after dismissing the sole federal claim prior to trial.

business & regulatoryprocedurepropertytorts & liability

The case involved a Florida condominium association that purchased insurance policies from QBE covering damage from Hurricane Wilma and later sought declaratory judgments on three issues: whether the policies covered damage to windows and sliding glass doors providing unit access, whether the association was entitled to resolve the loss amount dispute through the policy's appraisal process, and whether the hurricane deductible was void under Florida statute for lacking required disclosures. The district court dismissed the first count for lack of a justiciable controversy, finding no evidence that QBE had denied coverage for the windows and doors. It dismissed the second count as premature because QBE had not yet taken a position creating a disagreement over the precise amount of the loss. The third count was stayed pending the Florida Supreme Court's decision in a related case on the deductible issue.

propertybusiness & regulatoryprocedure

The case involved a plaintiff suing Bank of America over collection efforts on a home mortgage debt, asserting claims under the Fair Debt Collection Practices Act, the Florida Consumer Collection Practices Act, the Telephone Consumer Protection Act, invasion of privacy, and for declaratory and injunctive relief. The court granted the defendants' motion to dismiss the second amended complaint in full. It dismissed the FDCPA claim with prejudice because mortgage servicers like the defendants are not debt collectors under the statute when the debt was not in default at assignment. The TCPA claim under one provision was dismissed with prejudice due to an established business relationship exemption, while other claims were dismissed without prejudice for inadequate factual allegations or lack of a viable basis for relief.

business & regulatoryproceduretorts & liability

This case involves a Florida condominium association suing its insurer, QBE, after the insurer partially inspected but denied a claim for hurricane damage to the property under a commercial residential insurance policy issued in 2004. The complaint asserted claims for declaratory judgment (including challenges to coinsurance and deductible provisions), breach of contract for actual cash value and replacement cost, and breach of the implied warranty of good faith and fair dealing. The court granted the defendant's motion to dismiss portions of the declaratory judgment count and the good faith claim. It reasoned that the coinsurance challenge was not ripe for declaratory relief since the insurer had not invoked the provision, other declaratory requests improperly sought monetary damages duplicative of the contract claims, and Florida law does not recognize a separate cause of action for breach of implied good faith in first-party insurance disputes until underlying coverage issues are resolved, as such claims are subsumed under statutory bad faith actions.

business & regulatoryproperty

This case involves a statutory bad faith claim brought by Chalfonte Condominium Apartment Association against QBE Insurance Corporation under Florida law, arising from QBE's handling of a hurricane damage insurance claim that resulted in a jury verdict for Chalfonte. The underlying breach of contract action remains pending on appeal, prompting QBE to move to dismiss the bad faith complaint as premature. The court denied the motion to dismiss but abated the proceedings, administratively closing the case until all appellate remedies in the underlying dispute are exhausted, requiring periodic status reports from the parties. The core reasoning relied on precedent holding that an insurer's liability and the extent of damages must be finally resolved, including after appeals, before a bad faith claim ripens, distinguishing contrary non-final authority and finding arbitration-based cases inapplicable.

proceduretorts & liabilitybusiness & regulatory

The case involved a borrower who sued Countrywide Home Loans, alleging that the lender deceived him during refinancing of a subprime mortgage by promising a fixed 6.375% interest rate but instead closing on an adjustable 6.875% rate loan, while also falsifying his loan application documents and violating federal statutes including TILA, RESPA, ECOA, and HOEPA, as well as state claims for fraud, FDUTPA, and predatory lending. The district court granted Countrywide's motion to dismiss the amended complaint in full. The court dismissed all eight counts with prejudice, reasoning that the federal claims were time-barred or otherwise failed as a matter of law, that Florida substantive law governed the state claims which also lacked legal basis or supporting facts, and that the plaintiff had conceded certain claims.

business & regulatorypropertyprocedure

The case involved a buyer who entered a preconstruction contract to purchase a condominium unit, paid a 20% escrow deposit, and later sought to cancel due to changed financial circumstances, requesting return of the deposit from the developers and related bank. The plaintiff alleged violations of the Interstate Land Sales Full Disclosure Act (ILSFDA) by the developers and Regions Financial Corporation, seeking declaratory judgment, rescission, injunctive relief, and damages. The court granted the defendants' motions to dismiss the amended complaint. It reasoned that the ILSFDA claims, including those sounding in fraud, failed to meet required elements such as particularized allegations of deceptive acts directed at the plaintiff or resulting damages, and that certain counts improperly lumped defendants or sought inapplicable remedies.

business & regulatorypropertyprocedure

This case involves former American Express Bank executive Sergio Masvidal, who alleged that the Department of Justice violated his due process rights by including him in a secret letter agreement tied to a 2007 deferred prosecution agreement for the bank's Bank Secrecy Act and anti-money laundering compliance failures; the agreement barred him from continuing in his role or working for successors without DOJ approval, leading to his termination and subsequent employment difficulties in banking. Masvidal sued the DOJ, claiming the agreement imposed employment restrictions and a lasting stigma that the DOJ later withdrew but did not fully remedy. The court denied the DOJ's motion to dismiss, finding that Masvidal had sufficiently pleaded a due process claim based on the DOJ's conduct in conditioning his employment rather than a mere defamation or stigma-plus claim, and rejecting arguments that the claim was barred by privileges or required additional elements like publication of defamatory statements.

criminal lawcivil rightslabor & employment

The case involved Omega Forensic Engineering suing its insurer RLI for a declaratory judgment that RLI had a duty to defend and indemnify Omega in an underlying state-court lawsuit brought by Fireman’s Fund Insurance Company (FFIC). FFIC alleged that Omega’s negligent disposal of a defective water heater prevented FFIC from pursuing a subrogation claim against the heater’s manufacturer, Rheem, causing FFIC economic damages of over $92,000. RLI moved to dismiss, arguing that the policy covered only bodily injury or property damage to tangible property, not the loss of an intangible subrogation right, and that the “care, custody, or control” exclusion applied. The court granted the motion and dismissed the case with prejudice, holding that FFIC’s claim sought recovery for an economic interest rather than covered property damage and that the exclusion barred coverage even if the claim had qualified.

business & regulatorytorts & liability

The case involved Vision I Homeowners Association's claims against its insurer Aspen Specialty Insurance Company for coverage of property damage from Hurricane Wilma under a 2005 policy, seeking declaratory judgment on policy validity and enforceability, as well as damages for breach of contract regarding actual cash value and replacement cost value payments. Aspen moved for summary judgment on various grounds, including failure to provide timely notice and comply with policy conditions for replacement cost coverage. The court granted partial summary judgment to Aspen on its third affirmative defense and Count V, precluding Vision I from recovering replacement cost value. The reasoning was that the policy's clear terms required Vision I to notify Aspen of its intent to seek replacement cost coverage within 180 days of the loss, a deadline Vision I missed by over a year without any disputed facts excusing the delay, regardless of any issues with actual cash value payments.

business & regulatorypropertyprocedure

The case involves a homeowners association suing its property insurers, Aspen and James River, for allegedly failing to adjust or pay a claim for damages to insured property caused by Hurricane Wilma in 2005, seeking declaratory relief, damages, and fees under the insurance policies. Defendant James River moved to strike former adjuster Mark Phillips as an expert witness for the plaintiff, exclude his draft report recommending a $6.2 million reserve, and bar related testimony, arguing lack of qualifications on wind and water damage, bias from switching sides after leaving the adjusting firm, and irrelevance since the report was a preliminary draft. The court denied the motion in full, holding that challenges to Phillips's expertise, the circumstances of his retention by plaintiff's counsel, and the draft nature or probative value of the report all go to the weight of the evidence rather than its admissibility, and that cross-examination and jury evaluation can address these issues adequately.

propertyprocedurebusiness & regulatory

In Chalik v. Westport Recovery Corp., plaintiff Charles Chalik sued debt collection companies Westport Recovery Corp. and Friedman & Greenberg, P.A. for violating the Fair Debt Collection Practices Act by leaving a voicemail message without disclosing that they were debt collectors and by filing a sworn denial of his claim of exemption from garnishment in bad faith. The defendants moved to dismiss the amended complaint, arguing that the voicemail was not a communication under the FDCPA and that their actions complied with state law. The court denied the motions to dismiss as to the claims under 15 U.S.C. §§ 1692e(11) and 1692e, finding that the allegations were sufficient to state plausible claims, but granted the motions as to the claims under §§ 1692d and 1692f because the plaintiff failed to allege conduct beyond what was covered by other provisions or that was harassing or unfair in the required manner.

business & regulatoryprocedure

The case involved plaintiff Roy Dixon's claims against Countrywide Financial Corporation (CFC), Countrywide Home Loans (CHL), and Angelo Mozilo arising from a 2007 mortgage refinancing transaction. Dixon alleged that the defendants misrepresented the loan terms, promising a fixed 6.375% interest rate for 30 years but instead providing an adjustable 6.875% interest-only rate, leading to counts for violations of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), negligent misrepresentation, fraud, and breach of contract. The court granted CFC's motion to dismiss the second amended complaint. The core reasoning was that the alleged misrepresentations and loan documents involved CHL rather than CFC, the plaintiff failed to adequately plead unfair or deceptive acts by CFC that caused harm, and related procedural and service issues existed with the other defendants.

business & regulatorytorts & liability

In this case, a condominium association sued its insurer after Hurricane Wilma damaged its property, claiming the insurer failed to inspect, value, or pay under a commercial residential property insurance policy; the complaint asserted counts for declaratory judgment, breach of contract on actual cash value and replacement cost value, and breach of the implied covenant of good faith and fair dealing. The defendant moved to dismiss the good-faith count. The court granted the motion and dismissed Count IV with prejudice, reasoning that Florida law does not recognize an independent common-law claim for breach of the implied covenant of good faith and fair dealing in first-party insurance disputes, as such claims are subsumed in the statutory bad-faith cause of action under Fla. Stat. § 624.155 and may not be pursued until the underlying coverage issues are resolved.

business & regulatorypropertyprocedure

In this case, plaintiff Wally Drossin sued debt collector National Action Financial Services, Inc. on behalf of herself and a class, alleging that pre-recorded voicemail messages left on October 15 and 16, 2007, violated the Fair Debt Collection Practices Act and the Florida Consumer Collections Practices Act by failing to identify the caller as a debt collector or state the purpose of the call. The court granted partial summary judgment to the plaintiff, finding that the messages violated 15 U.S.C. § 1692e(11) by not disclosing in subsequent communications that the caller was a debt collector, but dismissed claims under 15 U.S.C. § 1692d(6) and Fla. Stat. § 559.72(9) along with requests for declaratory and injunctive relief. The court denied summary judgment on damages, holding that factual issues remained regarding the number of affected class members and the amount of statutory damages, which would be decided by a jury. The decision rested on the undisputed content of the messages and the FDCPA's requirement for meaningful disclosure of identity and purpose in debt collection communications.

business & regulatory

The case involves a buyer who entered a preconstruction purchase agreement for a luxury condominium unit, paid a $96,000 escrow deposit representing 20% of the $480,000 price, and later sought to cancel due to changed financial circumstances and recover the deposit under the Interstate Land Sales Full Disclosure Act (ILSFDA). The plaintiff sued the developers and the project’s financing bank, asserting claims for declaratory judgment, rescission, injunctions, reformation, and tortious interference based on alleged violations of ILSFDA escrow and disclosure rules, including challenges to a liquidated damages clause allowing retention of 15% of the purchase price. The court granted the defendants’ motion to dismiss in part, holding that the complaint failed to state viable ILSFDA violations against the bank and that the contract’s specific performance and damages provisions did not violate federal requirements, then denied the plaintiff’s motion for reconsideration.

propertybusiness & regulatoryprocedure

The case involves a homeowners association, Vision I, seeking a declaratory judgment that a 5% of total insured value hurricane deductible in its property insurance policy with Aspen Specialty Insurance is invalid and unenforceable under Florida Statute Section 627.701, following Hurricane Wilma damage to the insured property in 2005. The plaintiff moved for partial summary judgment on the deductible's invalidity, arguing noncompliance with statutory requirements for deductible offerings and notices. The court denied the motion, holding that the relevant Florida statute provisions on hurricane deductibles apply to surplus lines insurers like Aspen, but that the policy's deductible does not violate the statute's terms or render it unenforceable based on the statutory language and legislative intent at the time of contracting. The decision rests on statutory interpretation, finding no basis to invalidate the deductible provision despite the plaintiff's claims of ambiguity and noncompliance.

propertybusiness & regulatory

The case involved a former employee's claim against his employer under the Fair Labor Standards Act for unpaid overtime compensation. After the plaintiff failed to respond to the defendant's summary judgment motion or subsequent court orders, the court entered judgment in favor of the defendant. The defendant then moved to recover costs as the prevailing party, and despite receiving notice, the plaintiff did not object. The court adopted the magistrate judge's recommendation and granted the motion in part, awarding $1,074.64 in taxable costs for service of process, necessary photocopying, and court reporter fees, plus post-judgment interest, pursuant to Rule 54(d) and 28 U.S.C. § 1920.

labor & employmentprocedure