IN THE COUNTY COURT IN AND FOR HIGHLANDS COUNTY, FLORIDA 28 NOVEMBER 2012 CAPITAL ONE BANK (USA), N.A.

, Plaintiff, v. JAMES A. MOTIL, Defendant. _____________________________/ JAMES A. MOTIL, JUNIOR'S MOTION FOR A PROTECTIVE ORDER AND RESPONSE TO PLAINTIFF'S PROPOSED, DILATORY AND MALICIOUS "AMENDED STATEMENT OF CLAIM FOR DAMAGES" Comes now the non-named Defendant-IN-ERROR, James Angelo Motil, Junior ("Mr. Motil"), as his own attorney, to move the Court to deny Plaintiff's motion for leave to amend its statement of claim and to dismiss Plaintiff's action because Plaintiff's original Statement of Claim (Claim) and its proposed 11th-hour Amended Statement of Claim for Damages served by mail on 5 November 2012 (Amended Claim) (collectively, the Claims) both fail to show Plaintiff's standing, fail to state a cause of action, and fail to establish subject matter jurisdiction. Thus, amendment is futile and Plaintiff's attempt to amend--more than one year after filing its Claim and especially when a trial is supposed to be held next month--is prejudicial to Mr. Motil not only because he is being denied his right to a fair and speedy trial, but also because Plaintiff is not the owner of the alleged debt. As a matter of law, this action is a nullity. Mr. Motil, therefore, moves the Court to deny any more discovery, to strike the proposed Amended Claim and to dismiss Plaintiff's action with prejudice for all these reasons stated more fully below: 1. Plaintiff's action is malicious because it lacks any legal justification. See Gates v. Utsey, 177 So.2d 486 (Fla. 1st DCA 1965), at 488. "Malice in law. The intentional doing of a wrongful act without just cause or excuse." Black's Law Dictionary, 5th Ed., at p. 863. The Plaintiff's Motion for Leave to Amend Statement of Claim (Motion) says the initial Statement of Claim is deficient. [Emphasis added.] Although this assertion is, allegedly, made by another, Plaintiff apparently agrees with the assertion, because it would not have filed its Motion, otherwise 1 CASE NO. 11 000 301 - SPS

2.

Although the caption of the Amended Claim names a Plaintiff and a Defendant, the

Amended Claim fails to name or, otherwise, identify a defendant in the body of the claim. This Court recently dismissed a claim for this reason, among others. See Rivers Edge Investment Co. v. Kellie Motil, Case No. 2012 234 SPS. This Court's dismissal in Rivers Edge was based, in part, upon the Fifth District Court of Appeal's opinion which says: The naming of an individual or entity in the caption is not sufficient basis to warrant inclusion in the action if the party is not mentioned in the body of the complaint. Altamonte Hitch v. U-Haul, 498 So.2d 1346 (5th DCA 1986) at 1347. [Emphasis added.] 3. Small Claims Rule 7.090(a) says in pertinent part: These rules shall be construed to implement the simple, speedy and inexpensive trial of actions at law in county courts. 4. Small Claims Rule 7.090(d) says in pertinent part: The court shall set the case for trial not more than 60 days from the date of the pretrial conference. 5. Small Claims Rule 7.140(a) says in pertinent part: The trial date shall be set by the court at the pretrial conference. 6. The Claim was filed on 23 August 2011. The pretrial conference was held 42 days later

on 4 October 2011. The sixty-day deadline for the trial date was 2 December 2011.1 Plaintiff, to date, has not requested a trial date. At the last hearing, Mr. Motil agreed to a trial if it were held before the end of December 2012. Mr. Motil does not agree to any trial after 31 December 2012. 7. Neither the Court nor the Plaintiff has shown that the Court has any jurisdiction to set a trial date after the end of this year. Mr. Motil has been patient, but there has to be an end to Plaintiff's malicious and dilatory actions. Plaintiff has failed to show its standing, failed to state a cause of action, failed to produce a written agreement signed by anyone, and failed to establish subject matter jurisdiction after more than one full year! 8. Plaintiff has filed several malicious and dilatory papers in this action: 1) unverified papers alleging the unauthorized practice of law in a small claims court instead of filing a statement under oath with the Florida Bar--Mr. Erskine even accused Mr. Motil of attempting to "expedite" this case; 2) a motion to sequester Mr. Motil from non-existent witnesses when the
1

59 days after the pretrial conference, because the 60th day was 3 December 2011, a Saturday. 2

law does not allow parties to be sequestered from witnesses; 3) hundreds of pages of which are exact duplicates of papers already on file; 4) motions to force Mr. Motil to file an unnecessary pleading, when he has not been named as a party; 5) an 11th-hour motion for leave to amend its Claim when we are supposed to be having a trial by the end of next month; and 6) alleging in its Amended Claim that it now wants to take back funds it "bequeathed" (gave as a gift). 9. Plaintiff's dilatory Amended Claim falsely alleges in its opening paragraph that the Plaintiff is the owner of the debt.... This material allegation is negated by one of Plaintiff's other filings: Plaintiff's Reply to Defendant's 1st Request for Production of Documents (Reply). The Reply says, in paragraph 4, that Defendant's credit card account was part of a master trust. The Master Trust agreement attached to the Reply shows that the Account Owner, Capital One [State] Bank, conveyed all amounts payable by Obligors [including the credit card account alleged in this case], to the Transferor, Capital One Funding, LLC. Article II, Section 2.01 of the Master Trust agreement says that Capital One Funding, LLC hereby transfers ... to the Trustee [The Bank of New York] all of its right, title and interest, whether now owned or hereafter acquired, in, to and under the Receivables.... 10. Even though, as the Amended Claim says, the Plaintiff was a State Bank and then became a National Bank on or about March 2008, the State Bank did not own the Receivables in 2008 and the new National Bank could not take any ownership interest in said Receivables merely by the alleged conversion of its corporate status from a state bank to a national bank. 11. Florida Rules of Civil Procedure, Rule 1.120 (a) says, in pertinent part: It is ... necessary to aver the capacity of a party to sue or be sued, the authority of a party to sue ... in a representative capacity, or the legal existence of an organized association of persons that is made a party, ... to the extent required to show the jurisdiction of the court." [Emphasis added.] 12. As shown above, Plaintiff's allegation that it is the owner of the debt is negated by its own documents. Thus, there is no CONTROVERSY between Plaintiff and any defendant (even if the Amended Claim is, itself, amended to add a defendant's name), Plaintiff was not damaged by any defendant, Plaintiff has no STANDING to bring this action, and this Court has no subject matter JURISDICTION to hear it. Thus, Plaintiff's action is a nullity and it should be dismissed. 13. Plaintiff's Claim was only one page. It's proposed Amended Claim is ten pages. The Motion says a statement of claim must be concise and minimal otherwise this Court would strike a Plaintiff's predator's claim for going beyond the pale. Concise means expressing or covering much in few words; brief in form but comprehensive in scope. The Claim has minimal 3

words and fails to state a cause of action. The Amended Claim is verbose (too many words) and, still, fails to state a cause of action. 14. Plaintiff has not cured, and cannot cure, these DEFECTS by amendment of its Claim. THIS COURT HAS NO "EQUITY" JURISDICTION 15. Paragraph 1 of the Amended Claim says, This is a cause of action to collect a debt for damages pursuant to Florida Statute 34.01(4). This statute says: Judges of county courts may hear all matters in equity involved in any case within the jurisdictional amount of the county court, except as otherwise restricted by the State Constitution or the laws of Florida. [Emphasis added.] 16. Plaintiff has not attempted to invoke any at law jurisdiction and Plaintiff's feeble attempt to invoke equity jurisdiction in this Court under Florida Statute 34.01(4) fails because county courts (including the small claims division of the county courts) have no equity jurisdiction except for juvenile traffic cases according to Florida Statute 26.012 (2)(c) and, oral and implied agreements are not enforceable in Florida courts whether "at law" or "in equity." 17. F.S. 26.012 (2)(c) says, in pertinent part, that circuit courts ... ... shall have exclusive original jurisdiction: In all cases in equity including all cases relating to juveniles except traffic offenses .... [Emphasis added.] 18. It appears that the extremely limited "equity" jurisdiction of county courts granted by F.S. 34.01(4) is restricted by Florida law, F.S. 26.012, which grants circuit courts with the exclusive original jurisdiction of "all cases in equity" excepting only those cases dealing with juvenile traffic offenses. [Emphasis added.] 19. The Florida Constitution, Article V, Judiciary, Section 2(a) says, "The [Florida] supreme court shall adopt rules for the practice and procedure in all courts..." including the small (or summary) claims division of the county courts. 20. Florida Small Claims Rules 7.010(a) and (b) do not mention equity, but they do say: These rules shall be construed to implement the simple, speedy, and inexpensive trial of actions at law in county courts. (b) Scope. These rules are applicable to all actions at law of a civil nature in the county courts.... [Emphasis added.] 21. It appears that neither the county court, nor the small claims division of the county court, have any subject matter jurisdiction in any equity action with the single exception of juvenile traffic cases. As the Third District Court of Appeals points out: 4

[I]t was error for the Small Claims Division of the County Court to have determined that it had subject matter jurisdiction in this case that included a cause of action in equity. When a court lacks subject matter jurisdiction, any judgment rendered by the court is void. [Citations omitted.] "[A] judgment entered where the court lacks subject matter jurisdiction is a nullity." ... see also Ben-David v. Educ. Res. Inst., Inc., 974 So. 2d 1138, 1139 (Fla. 3d DCA 2008). 2 [Emphasis added.] The exclusive jurisdiction of equity extends to and embraces, (1) all civil cases in which the primary right violated or to be declared, maintained or enforced is purely equitable and not legal, and (2) all civil cases in which the adjudication sought involves a right, estate, title, or interest created by equity, and not by law. This class of cases, of course, includes the equitable concepts of unjust enrichment ... This class of cases falls under equitable jurisdiction alone, because of the nature of the primary or substantive right to be established, redressed, maintained, or enforced and not because of the nature of the remedies to be granted. Although in most such instances, the remedy is also equitable....3 [Emphasis added.] 22. In matters of statutory construction (determining the real meaning of statutes), there is a principle that the specific mention of one thing is the specific exclusion of all things that are not mentioned. In Latin, expressio unius est exclusio alterius. In other words, what was omitted was intended to be omitted.4 Because Fla. Sm. Cl. R. 7.010(a), and (b) mention "at law" and do not mention "equity" it is presumed to be intended that small claims courts have absolutely no "equity" jurisdiction. 23. An article in the Florida Bar Journal by Mr. Hugh McConnell, mentions, "the equitable remedy known as unjust enrichment."5 [Emphasis added.] Mr. McConnell also points out: 24. To recover under an unjust enrichment theory, the following elements must be proven: 1) lack of an adequate remedy at law ["unjust enrichment is not a remedy "at law," so it is a remedy "in equity"]; 2) a benefit conferred upon the defendant by the plaintiff coupled with the defendants appreciation of the benefit (i.e., an enrichment); and 3) acceptance and retention of the benefit under circumstances that make it inequitable (or unjust) for him or her to do so without paying the value of it (i.e., an injustice).
2

3 4 5

LaSalla v. Pools by George of Pinellas County, Inc., No. 10-000003AP-88A, 10-000021AP88A (Fla. 6th Cir. App. Ct. June 29, 2011). Hutchens v. Maxicenters, U.S.A., 541 So. 2d 618 (Fla. 5th DCA 1988). http://www.supremelaw.org/authors/trumane/esquires.htm - John E. Trumane Distinguishing Quantum Meruit and Unjust Enrichment in the Construction Setting, by H. Hugh McConnell, The Florida Bar Journal, March 1997, Volume LXXI, No. 3, Page 88. 5

25. Mr. McConnell concludes his article in the Florida Bar Journal by saying: The peculiar issues associated with pleading a claim for relief under unjust enrichment reflect how distinctly different it is from quantum meruit. The two remedies are not interchangeable. Because one sounds in equity and the other in law, they may not both be pled simultaneously for the same claim. [Emphasis added.] [unjust enrichment = equity; quantum meruit = law] 26. In Old England, the right to administer justice was derived from the King. In 1406 the King committed all his judicial powers to the courts. The three "Common Law" or legal courts" were: King's Bench; Common Pleas and Exchequer. A fourth court was not a "common law" court because it administered "equity." It was called the "Court of Chancery."6 The Court of Chancery began to develop in the 15th century to provide remedies not obtainable in the English courts of common law. As time went by, these courts began to encroach upon the province of the common-law courts. In the 17th century England it was settled that the equity courts would not hear any case in which there was adequate remedy at common law.7 27. Although there existed "actions which had restitutional functions," historically, there is "no general concept of unjust enrichment in the common law."8 [Emphasis added.] 28. It appears, both from the conflict of the old English courts (common law vs. equity) and the current elements of a cause of action, that "unjust enrichment" is an action "in equity" and not "at law." Thus, it appears that the county courts in Florida have no subject matter jurisdiction to hear any action which contains a count for unjust enrichment." At any rate, the Amended Claim purports to invoke equity jurisdiction in a county court, which has no such jurisdiction, except for juvenile traffic cases, and it fails to, sufficiently, invoke at law jurisdiction. EXHIBITS OF "FACSIMILE" COPIES ARE NOT ADMISSIBLE 29. None of the exhibits attached to the Amended Claim are admissible as evidence pursuant to F.S. 90.802 and 90.803. The exhibits are not originals, nor are they copies of originals. No affidavit is attached to verify their pertinence or authenticity. The Amended Claim alleges that the exhibits are mere facsimiles of generic documents instead of copies of actual, material documents. These purported exhibits are so bad, they do not even amount to hearsay. None of the exhibits contain a signature for anyone.
6 7 8

See www.lawobserver.co.uk/legal_system_20.html See www.britannica.com/print/topic/105336 Structuring the Law: The Common Law and the Roman Institutional System, Stephen P. Buhofer, 2007, at page 24. fn. 131. 6

30. The Amended Claim alleges a request for "the issuance of a credit card" on or about "12/05/2000" in paragraph 4, then it alleges the credit card was "issued to Defendant on or about December 5th, 2001" (a year later) in paragraph 5. The alleged "agreement"9 exhibit bears a copyright date of 2005 which is five (5) years after the alleged request for credit. 31. Plaintiff alleges that it does not know whether the un-identified defendant "applied for the credit card in issue via the internet, telephone or by written application." Plaintiff admits it does not know how the un-identified defendant applied for credit. Plaintiff, thereby, admits that it has no evidence to establish the mandatory ultimate fact that an un-identified defendant "applied for the credit card." 32. The federal law quoted in the Amended Claim, "12 C.F.R. 226.12," negates all the causes of action in the Amended Claim, because it clearly says that "no credit card shall be issued ... exceptIn response to an oral or written request or application for the card...." Plaintiff has filed over two reams of papers and still fails to file a copy of an agreement signed by anyone. 33. 2 C.F.R. 226.12(a)(1) says, in pertinent part: Regardless of the purpose for which a credit card is to be used, including business, commercial, or agricultural use, no credit card shall be issued to any person exceptIn response to an oral or written request or application for the card.... [Emphasis added.] 34. Agreeing with 25. 2 C.F.R. 226.12(a)(1), 15 USC 1642 says, in pertinent part: No credit card shall be issued except in response to a request or application therefor. 35. 15 USC 1692g(c) says, in pertinent part: "The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer." The Amended Claim's allegations to the contrary are invalid. State law only prevails over federal law only if it gives greater protection to the consumer. 36. The Amended Claim says there was no "dispute" of statements regarding the alleged debt. However, Plaintiff filed a "Notice of Confidential Information within Court Filing of Verification..." which contains a copy of Mr. Motil's "REQUEST FOR VERIFICATION" dated 7 April 2011 which, says: "I dispute the entire amount of this alleged debt." 37. The Amended Claim mentions an agreement, but fails to either state the terms of said agreement or to attach a copy signed by anyone in the year 2000, or at any other time. Florida Small Claims Rules says, in pertinent part:
9

See Amended Claim at paragraphs 3 and 4. 7

RULE 7.050. COMMENCEMENT OF ACTION; STATEMENT OF CLAIM (a) Commencement. (1) Statement of Claim. Actions are commenced by the filing of a statement of claim in concise form, which shall inform the defendant of the basis and the amount of the claim. If the claim is based on a written document, a copy or the material part thereof shall be attached to the statement of claim. All documents served upon the defendant with initial process shall be filed with the court. [Emphasis added.] 38. Without an attached cause of action, the Claim should be dismissed for failure to follow the rules, failure to establish standing, failure to state a cause of action and failure to prosecute. See Diaz v. Bell, 43 So.3d 138 (Fla. 3rd DCA 2010). In Diaz, as in this action, the plaintiff failed to attach to the complaint the written contract that formed the basis of its claim for relief, thus, the plaintiff's complaint failed to state a cause of action. See, also, Safeco Ins. Co. of Am. v. Ware, 401 So.2d 1129, 1130 (Fla. 4th DCA 1981). 39. Although some oral agreements are enforceable in Florida, certain oral and implied agreements for credit are not enforceable in Florida courts pursuant to these statutes: 1) F.S. 672.201(1) which says, in pertinent part: [A] contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought....; [Emphasis added.] 2) F.S. 687.0304 (2) CREDIT AGREEMENTS TO BE IN WRITING.A debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor. [Emphasis added.] and 3) F.S. 687.0304 (3)(b) ACTIONS NOT CONSIDERED AGREEMENTS. A credit agreement may not be implied from the relationship, fiduciary, or otherwise, of the creditor and the debtor. [Emphasis added.] 40. An "'oral agreement' does not overcome the Banking Statute of Frauds." University Creek Associates II, Ltd. v. Boston American Financial Group, Inc., Case No. 98-6643-CIVHighsmith, U.S. Dist. Ct. for the So. Dist. of Florida, 100 F.Supp 2d 1345, 1351. 41. In Florida, credit agreements must be in writing and may not be implied. Furthermore, a claim for promissory estoppel does not survive the statute of frauds.10 42. The Amended Claim alleges an "agreement" in paragraphs 3 and 4, but fails to provide either a written copy of the agreement from the year 2000 or the terms and conditions of an oral
10

Shore v. Seagate, 842 So.2d 1010, at 1012 (Fla. 4th DCA 2003). 8

(or implied) agreement from the year 2000. The Amended Claim appears to be based upon an oral, unwritten, and implied contract. However, oral, unwritten, and implied contracts for credit--as alleged in this action--are not enforceable in Florida courts. 43. When state law gives "greater protection to the consumer," it will prevail over federal law. See 16 U.S.C. 1666j. RE MALICIOUS COUNT I 44. There is no "common law" or Florida cause of action for: Goods Sold & Delivered on a Credit Card. Thus, this purported Count is--by definition--malicious. 45. There is a cause of action for Goods Sold in the Florida Rules of Civil Procedure. However, Mr. Erskine appears to be ignorant of those Rules and, in particular, Form 1.93511 which is a sample complaint approved by the Florida Supreme Court for a Goods Sold cause of action or count. This sample count is for a plaintiff who sold and delivered goods to an identified defendant who did not pay for the goods he received from plaintiff. 46. This count fails to state a cause of action because it fails to allege that Defendant owes plaintiff $.......... that is due with interest since .....(date)....., for the following goods sold and delivered by plaintiff to defendant between ..... (date)....., and .....(date).....: (list goods and prices) 47. In fact, Count I says that merchants sold the goods to the [un-identifed] Defendant, not Plaintiff. [Emphasis added.] 48. Count I's incoherence is compounded when it names two other causes of action in the same Count: 1) open account; and 2) account stated. 49. Plaintiff does not name any defendant in the body of the Amended Claim. 50. Count I is vague and malicious. It cannot stand because it does not state the necessary elements of a cause of action for Goods Sold and it is repugnant in that its purported cause of action for Goods Sold is negated by Plaintiff's own allegations in the same Count showing it did not sell any goods to any defendant. Plaintiff filed other papers showing that Plaintiff does not own the alleged debt. Mr. Motil moves the Court to STRIKE Count I. RE MALICIOUS COUNT II 51. There is no "common law" or Florida cause of action entitled: Action to Recover Open Balance Due on Credit Card. The text of Count II mentions the words open account and there
11

See Exhibit B, a copy of Form 1.935, attached hereto. See, also, Fla. Sm. Cl. R. 7.331 9

is a cause of action for Open Account in the Florida Rules of Civil Procedure. However, Mr. Erskine appears to be ignorant of Form 1.932. At any rate, if this Count is based upon a cause of action for open account, it fails to state that Defendant owes plaintiff $.......... that is due with interest since .....(date)....., according to the attached account. and it does not attach a copy of the account showing items, time of accrual of each, and amount of each must be attached.12 52. Count II is vague and malicious. It cannot stand because it does not state the necessary elements of a cause of action for Open Account or any other cause of action. Count II does not even name a defendant. Thus, Mr. Motil moves the Court to strike Count II. RE MALICIOUS COUNT III 53. There is no "common law" or Florida cause of action entitled: Sums Due on Credit Card Account Stated. If this Count purports to be a cause of action based upon an Account Stated," it fails to allege that Before the institution of this action plaintiff and defendant had business transactions between them and on .....(date)....., they agreed to the resulting balance. Plaintiff rendered a statement of it to defendant, a copy being attached, and defendant did not object to the statement. Defendant owes plaintiff $.......... that is due with interest since ..... (date)....., on the account. NOTE: A copy of the account showing items, time of accrual of each, and amount of each must be attached.13 54. There is no allegation of an agreement between the parties that "a certain balance is correct and due." There is no allegation of a "promise" by any defendant to pay an agreed-upon balance. Plaintiff's other filingsnegate the allegations of this Count by showing that Plaintiff does not own the alleged debt. Plaintiff does not allege that it represents the debt owner. 55. Mr. Erskine appears to be equally ignorant of Form 1.933 which is a sample complaint approved by the Florida Supreme Court for an Account Stated cause of action. 56. The allegation that "the parties entered into an implied agreement" is doubly contradictory because: 1) a "written application" is alleged in paragraph 3, not an "implied" application; and 2) the elements of a cause of action for "Account Stated" require a written "statement" and an express or implicit (not implied) promise to pay that stated balance. An account stated claim is "an agreement between persons who have had previous transactions, fixing the amount due in respect to such transactions and promising payment.'" Nants v. F.D.I.C., 864 F.Supp. 1211, 1219 (S.D. Fla.1994) (citation omitted). Thus, for an account stated to exist, there must be an
12 13

See Exhibit A, a copy of Form 1.932, attached hereto. See Exhibit A, a copy of Form 1.933, attached hereto. 10

agreement that a certain balance is correct and due, and an express or implicit [not implied] promise to pay that balance. See Georges v. Friedman & Co., P.A., 499 So.2d 59, 59 (Fla. 4th DCA 1986). [Emphasis added.] 57. Count III vaguely alleges an "implied" agreement, but does not say whether it is an "implied-in-fact" or an "implied-in-law" agreement. Either way, as stated previously, implied contracts are not enforceable in Florida. It does not even identify a defendant. 58. Plaintiff's Count III is vague, repugnant and malicious. It cannot stand because it does not state the necessary elements of a cause of action for Account Stated or any other cause of action. Mr. Motil moves the Court to STRIKE Count III. RE MALICIOUS COUNT IV 59. There is no "common law" or Florida cause of action entitled: Breach of a Written Credit Card Agreement." As a count for "breach of contract," it fails to state a cause of action, because (as stated above) no copy of the written agreement, signed by anyone, is attached. 60. Repeating Fla. Sm. Cl. R., 7.050(a)(1) which says, in pertinent part: Actions are commenced by the filing of a statement of claim in concise form, which shall inform the defendant of the basis and the amount of the claim. If the claim is based on a written document, a copy or the material part thereof shall be attached to the statement of claim. [Emphasis added.] 61. Count IV, also, fails to show Plaintiff's standing or capacity to sue. Allegations in the opening paragraph about Plaintiff being a "State" bank or a "National" bank are irrelevant because "other filings" referenced in the Amended Claim negate the allegation that the "Plaintiff is the owner of the debt." 62. The controlling exhibits, referenced as "other filings," show that the "Capital One Master Trust" (Trust) owns the alleged debt. Although the Amended Claim (at 2) alleges that all actions material hereto occurred in HIGHLANDS County in the State of Florida, no allegation is made that the Trust has given satisfactory security to the state of Florida, before transacting business here. The alleged Trust is not a national bank, but at any rate, F.S. 660.27 applies to any entity with trust powers, including national banks and federal associations. 63. Florida Statute 660.27 says, in pertinent part: "Before transacting any trust business in this state, every trust company and every state or national bank or state or federal association having trust powers shall give satisfactory security by the deposit or pledge of security...." F.S. 660.27 [Emphasis added.] 11

64. A "satisfactory security" must be given to the state of Florida before "transacting any trust business in this state." This law applies to national banks and federal associations as well as to state banks and trust companies. Also, see F.S. 609 et seq. 65. To state a valid claim for breach of contract under Florida law, a plaintiff must allege: l) a valid contract; 2) a material breach; and 3) damages.14 The Claims fail to show any contract
between Plaintiff and any defendant, thus there is no breach of contract; no one has caused any damage to Plaintiff, and there is no controversy between any two parties.

66. There is no controversy between the parties; this Court has no subject matter jurisdiction to
hear this action; the Claims do not allege that the Trust has complied with Florida law; the Claims

fail to show Plaintiff's standing or capacity to sue, fail to attach a copy of any agreement signed by anyone, fail to state a cause of action, and fail to establish subject matter jurisdiction. 67. For the sake of argument, even if there had been a written contract, Plaintiff has filed papers stating that someone else owns the debt. Count IV fails to name a defendant. Therefore, Mr. Motil moves the Court to STRIKE Count IV. RE MALICIOUS COUNT V 68. Count V purports to be for "Money Lent," however, it fails to allege that Plaintiff "sues defendant, ... , and alleges: There is now due, owing, and unpaid from defendant to plaintiff $.......... for money lent by plaintiff to defendant on .....(date)....., with interest thereon since ..... (date)......"15 69. Count V alleges Plaintiff both "lent the money to the [un-identified] Defendant" and "paid for those items." This statement is vague. It says Plaintiff both "lent" money to someone and, at the same time, "paid" merchants for the items. This statement is incoherent, at best. 70. Count V fails to allege any "terms and conditions." As mentioned above, credit agreements for amounts over $500, cannot be enforced in Florida courts unless they are in writing and signed by the parties. No such agreement is attached to the Claims. Oral and implied credit agreements (over $500) are not enforceable in Florida. 71. As already mentioned, Plaintiff is not the owner of the alleged debt, so, Plaintiff has no standing and no capacity to sue anyone in this matter. Count V fails to name a defendant and fails to state a cause of action. Thus, Mr. Motil moves the Court to STRIKE Count V.
14

15

Merin Hunter Cadman, Inc. v. Wackenhut Corrs. Corp., 941 So. 2d 396, at 398 (Fla. 4th DCA 2006) See Exhibit B, a copy of Form 1.936, attached hereto. See, also, Fla. Sm. Cl. R. 7.333 12

RE MALICIOUS COUNT VI 72. Count VI purports to be an "Action for Unjust Enrichment" in which Plaintiff seeks restitution, in equity, when Plaintiff is not the real party in interest. The Amended Claim alleges that it is an "action to collect a debt for damages pursuant to Florida Statute 34.01(4)." This statute authorizes county courts to hear "equity" matters except as otherwise restricted by the laws of Florida. The only equity cases allowed in county courts are juvenile traffic cases. 73. Mr. Motil incorporates paragraphs 15- 28 of this Response, as if fully re-written herein, by this reference. Neither the county courts, nor the small claims division of the county courts, have any "equity" jurisdiction to hear this action, thus this action should be dismissed. 74. As mentioned earlier, Florida's Third District Court of Appeals points out: [I]t was error for the Small Claims Division of the County Court to have determined that it had subject matter jurisdiction in this case that included a cause of action in equity. When a court lacks subject matter jurisdiction, any judgment rendered by the court is void. [Citations omitted.] "[A] judgment entered where the court lacks subject matter jurisdiction is a nullity." ... see also Ben-David v. Educ. Res. Inst., Inc., 974 So. 2d 1138, 1139 (Fla. 3d DCA 2008).1 [Emphasis added.] 75. Count VI incorporates paragraphs 1 - 7 of the Amended Claim by reference in its paragraph # 36. Paragraphs 3 and 4 mention an "agreement" and "terms and conditions." These allegations are contradictory to a cause of action for "unjust enrichment." A "plaintiff cannot pursue a quasi-contract claim for unjust enrichment if an express contract exists concerning the same subject matter."16 Plaintiff did not plead any count "in the alternative." 76. If there is an agreement, as alleged, then Plaintiff's remedy is one "at law" and the "equitable" remedy of unjust enrichment is not available to Plaintiff. However, Count VI is inconsistent and contradictory by first alleging an express contract and then purporting to state a cause of action for unjust enrichment in which Plaintiff attempts to show that an un-identified defendant accepted "benefits" from Plaintiff without a contract and alleging that it would be "inequitable" for anyone to "retain" un-identified benefits that were given (not sold) to them. 77. Count VI alleges an agreement (a contract with a "promise" to pay) and it says the unidentifed defendant "assented to re-pay the Plaintiff," however, an "unjust enrichment" cause of action is "based upon an equitable remedy which is considered17 "a 'contract implied in law,'
16 17

Diamond's Dev. Corp. v. Mercantile Bank, 989 So. 2d 696, at 697 (Fla. 1st DCA 2008). Distinguishing Quantum Meruit and Unjust Enrichment in the Construction Setting, by H. Hugh McConnell, The Florida Bar Journal, March, 1997 Volume LXXI, No. 3, Page 88 13

[however] it is not a contract at all. Rather, it is [a] legal fiction described as 'an obligation imposed by law to do justice even though it is clear that no promise was ever made or intended.'18 [Emphasis added.] 78. Because Count VI has inconsistent allegations, it is repugnant and, therefore, a nullity: Repugnancy occurs when allegations within a single cause of action or defense are inconsistent and thus neutralize each other. The resulting pleading is a nullity. This may occur in the pleading or between it and an attached exhibit.19 79. Florida's Supreme Court has said: Exhibits attached to a pleading become a part of the pleading for all purposes. See Fla. R. Civ. P. 1.130(b). If an exhibit facially negates the cause of action asserted, the document attached as an exhibit controls and must be considered in determining a motion to dismiss.20 [Emphasis added.] 80. Count VI is vague because it does not allege exactly what "monetary benefit" Plaintiff bestowed upon the un-identified defendant or when it was bestowed. The Claims do not itemize the alleged "damages." It is likely that most, if not all, of those damages consist of interest, fees and charges. Plaintiff fails to show how such items are, or can be, a "benefit" to any defendant. 81. Count VI is a nullity, too, because it is inconsistent when it first alleges an un-identified defendant "assented to re-pay the Plaintiff," then it alleges--to the contrary--that the "funds" were a gift. At paragraph 40, Count VI alleges the "funds" were "bequeathed." 82. The dictionary defines the word BEQUEATH: To give personal property ... to another.21 [Emphasis added.] 83. Count VI fails to allege why anyone should give back a gift, or how it is either unjust or inequitable for anyone to keep a gift. This Count fails to name a defendant. 84. Count VI is so vague, contradictory and incomplete, that it is a nullity. It fails to show Plaintiff's standing or capacity to sue, fails to state a cause of action, and denies subject matter jurisdiction to this Court. Thus, Mr. Motil moves the Court to STRIKE Count VI.

18

19
20 21

John D. Calamari & Joseph M. Perillo, The Law of Contracts 1-12 (2d ed. 1977); see Tipper v. Great Lakes Chem. Co., 281 So. 2d 10, 13 (Fla. 1973). See Trawick, Fla. Prac. and Proc. 6.7 Repugnancy (2010 ed.) at page 99
Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000), at 1242.

Black's Law Dictionary, 6th Ed., at page 160. 14

RE MALICIOUS COUNT VII 85. Count VII purports to be for "Money Had and Money Received" which, also, seeks restitution, in equity. This Count is duplicative of Count VI for Unjust Enrichment and it fails to state an independent ground for relief. 86. "Florida law recognizes the general rule that 'an action for money had and received, currently treated as an action for restitution, can be maintained where money is paid under a mistake of fact or where money has been obtained through fraud, imposition, extortion or undue advantage. '" Berry v. Budget Rent A Car Sys., Inc., 497 F. Supp. 2d 1361, 1370 (S.D. Fla. 2007) (quoting Central Bank & Trust Co. v. General Fin. Corp., 297 F.2d 126, 129 (5th Cir. 1961)). "This quasi-contractual action is maintained based on 'the fiction of an implied promise to repay. '" Id. (quoting Marshall-Shaw v. Ford, 755 So. 2d 162, 164 (Fla. 4th DCA 2000. "[T]he presence of an express contract precludes recovery on a quasi-contractual remedy such as money had and received." Id. 87. Plaintiff does not allege that money was paid under a mistake of fact or obtained through fraud, imposition, extortion, or undue advantage. Plaintiff does not even know to whom it allegedly "paid" money. The Claim alleges "other parties," but fails to identity either them or a defendant. 88. Count VII fails to state a cause of action, fails to show Plaintiff's standing or capacity to sue, fails to name a defendant, and fails to establish subject matter jurisdiction. Plaintiff did not plead any count "in the alternative." Thus, Mr. Motil moves the Court to STRIKE Count VII. RE MALICIOUS COUNT VIII 89. Count VIII is for a "Cause of Action for Restitution" which, also, seeks restitution, in equity. This Count is duplicative of Counts VI and VII. Count VIII fails to state an independent ground for relief. 90. Florida's Fourth District Court of Appeals has opined: [W]hether one labels it with the terminology of the old common count "for money had and received" (indebitatus assumpsit) or the more current "restitution" to prevent "unjust enrichment." [Emphasis added.] "An action for money had and received may, in general, be maintained whenever one has money in his hands belonging to another, which in equity and good conscience, he ought to pay over to that other."22 [Emphasis added.]
22

Moore Handley, Inc. v. Major Realty Corp., 340 So.2d 1238, at 1239 (Fla. 4th DCA 1976) 15

91. Florida's First District Court of Appeals has, also, opined: As explained by Justice Cardozo, a cause of action for restitution is a type of the broader cause of action for money had and received, a remedy which is equitable in origin and function. The claimant, to prevail, must show that the money was received in such circumstances that the possessor will give offense to equity and good conscience if permitted to retain it.23 [Emphasis added.] 92. All three counts (VI, VII and VII) are equitable causes of action, thus--as stated previously, the county courts (and the small claims division of the county courts) have no "equity" jurisdiction to hear these actions. 93. Again, Florida's Third District Court of Appeals points out: [I]t was error for the Small Claims Division of the County Court to have determined that it had subject matter jurisdiction in this case that included a cause of action in equity. [Emphasis added.] 94. Count VIII is, especially, egregious because Plaintiff has stated--in its own papers--that it does not own the debt alleged in the Claims. The Claims have not alleged that Plaintiff is suing on behalf of someone else. Plaintiff's "other filings" show that the alleged debt has been sold, assigned or, otherwise, transferred to another party. Count VIII fails to name a defendant. 95. It would be unfair and inequitable for this Court to force Mr. Motil to pay any money to a plaintiff who neither owns, nor represents anyone who owns, the alleged debt. 96. Plaintiff and its attorneys-at-law have attempted a fraud upon this Court and this Court should respond to that fraud, accordingly and appropriately. Thus, Mr. Motil moves the Court to STRIKE Count VIII and to issue sanctions against Plaintiff and its attorneys-at-law, accordingly. NO BOND AND NO JURISDICTION 97. Plaintiff is a nonresident entity that has failed to file the bond required by Florida Statute 57.011 even after notice was given pursuant to said statute. The statute demands the filing of a bond by a principal and a surety, not the depositing of cash by an attorney-at-law in lieu of a bond. 98. The FACTS appearing on the face of the record show that Plaintiff has NOT filed a BOND.

23

Mann v. Thompson, 118 So. 2d 112, at 115 (Fla. 1st DCA 1960) 16

99. Plaintiff's purported attorney-at-law has deposited cash money in lieu of a bond and filed a paper--fraudulently--purporting to be a "Notice" of filing a bond. According to Florida law, a bond must have a principal and a surety. Florida law prohibits an attorney-at-law from being "surety" for a client in any legal proceeding. To reflect the FACTS, the attorney-at-law should have filed a "Notice of Depositing Cash in Lieu of a Bond." However, the attorney-at-law knows that would not meet the requirements of the statute. This subterfuge does not meet the established requirements of the law. This Court should know what a bond is. While some Florida statutes permit the substitution of a cash deposit in lieu of a bond, F.S. 57.011 does not. Neither the Plaintiff nor the Court has shown any authority for such a substitution. 100. Plaintiff's "Notice of Filing Nonresident Cost Cash Bond Pursuant to Florida Statute 57.011" is not signed by Plaintiff as principal and is not signed by a surety, thus it fails to meet the requirements of a bond, it fails to satisfy F.S. 57.011, and it is, as titled, merely a Notice. The Notice says Plaintiff's Counsel has hereby deposited $100.00 with the Clerk of Court. The Notice does not bind anyone and it does not say under what conditions the money is to be dispersed. 101. Plaintiff's counsel, Stanley Erskine, filed a court record24 which falsely states that he filed a Cost Bond. The FACT is, there is NO cost bond in the record of this case. Additional proof that this is a scam, is that: If the depositing of $100 CASH with the Clerk of Courts was proper, then all any plaintiff would have to do is to deposit the CASH with a "notice" that it had done so with a reference being made to the statute that permits the deposit of CASH in lieu of a bond. Mr. Erskine commits a FRAUD upon the Court, and the Court co-operates, when he alleges that he has filed a BOND when, in FACT, he has not filed one. Mr. Erskine, as an attorney-at-law, CANNOT--legally--sign a BOND as a surety for his client in any court proceeding. 102. This case should have, already, been dismissed with prejudice. See Trawick, Fla. Prac. and Proc., 1.11 (2010 ed.) p. 13. 103. Stanley Erskine filed the "Notice of Filing Nonresident Cost Cash Bond Pursuant to Florida Statute 57.011" and signed it as counsel for Plaintiff. This Notice is false and misleading in that it purports to give public notice, by an officer of the court, that a bond has been filed, whenin factthe record shows no bond has been filed.
24

See Plaintiff's Reply to the Defendant's Motion to Dismiss for Failure to File a Non Resident Bond, served on 3 November 2011, at paragraph 4. 17

104. It appears that Mr. Erskine, as agent, and Plaintiff, as principal, have both committed a felony violation of Florida Statute 831.01 et seq. for uttering a false public record (a purported notice that a non-existent bond was filed) as a tool to defraud Mr. Motil. Without a valid bond, the Claim should be dismissed with prejudice. Whether or not the Plaintiff has actual knowledge about Mr. Fleisher's and Mr. Erskine's unethical actions, the Plaintiff--by ratification and as the disclosed principal--is liable for the actions of its agents--Mr. Erskine and Mr. Fleisher. 105. Mr. Motil moves the court to take judicial notice that the only attorney-of-record for Plaintiff is Andrew D. Fleisher. Mr. Fleisher has not withdrawn. No attorney has filed a notice of appearance. It appears that Mr. Fleisher is not in compliance with the Florida Rules of Judicial Administration 2.505(c) and (e) and 2.515(a). PLAINTIFF'S FALSE STATEMENT RE OWNERSHIP OF ALLEGED DEBT 106. The opening paragraph of the Amended Claim says Plaintiff is the owner of the debt... which is the subject matter of this action. This statement is false and it is negated by papers filed by Plaintiff. See Plaintiff's Reply to Defendant's [sic: James A. Motil, Junior's] 1st Request for Production of Documents (the Reply). 107. Attached hereto as Exhibit C is a chart showing the ownership path (dark arrows in solid lines) of the alleged debt according to the CAPITAL ONE MASTER TRUST AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT (PSA) attached to the Reply. 108. Capital One Bank is the seller as shown on page 8 of 160 of the PSA, and see Exhibit E (page 4 of 43) attached, Amended and Restated Receivables Purchase Agreement. 109. Receivables as stated on page 24 of 160, mean all amounts payable by Obligors on any Account ... conveyed by ... Account Owner to the Transferor. No notice of assignment for this transaction was alleged in the Claims. Exhibit D, a copy of F.S. 559.715, is attached hereto. 110. The PSA on page 30 of 160 says, in Section 2.01 that Capital One Funding, LLC (Transferer) transfers all of its right, title and interest in the Receivables to the Bank of New York (Trustee). In Section 2.09(b), at page 41 of 48, regarding Removal of Accounts, it says the Trustee shall execute and deliver a written reassignment ... and ... shall ... sell, transfer, assign, set over and otherwise convey to the Transferor ... without recourse ... all the right, title and interest of the Trustee in and to the Receivables.... 111. The Transferor is Capital One Funding, LLC, not Plaintiff. 18

112. Anyone purchasing a debt, that they know is in default, is not a holder in due course. See Florida Statute 673.3021. 113. The chart shows several debt ownership transfers: (1) from Capital One Bank to Capital One Funding, LLC; (2) to the Bank of New York; (3) to the Capital One Master Trust; and (4) back to Capital One Funding, LLC in cases of default. There is no allegation and no evidence to show any transfer of the alleged debt to Plaintiff. Nor is there any allegation or evidence as ANY notices of assignment for any of these assignments. See Exhibit D attached hereto, a copy of Florida Statute 559.715. This statute says, in pertinent part: [A]ssignee must give the debtor written notice of such assignment as soon as practical after assignment is made, but at least 30 days before any action to collect the debt. [Emphasis added.] CONCLUSION 114. The Claim fails to state a cause of action. This is supported by Plaintiff's own attempt to amend the original Claim. The original Claim fails to sue Mr. Motil under his full, legal name. 115. PLAINTIFF FAILS TO NAME ANY DEFENDANT IN THE BODY OF THE AMENDED CLAIM. 116. By reference to "other filings" the Amended Claim becomes a nullity because the exhibits negate the Amended Claim's allegation that the "Plaintiff is the owner of the debt." 117. Plaintiff's "other filings" state that the alleged credit card account is part of a "trust." However, Plaintiff fails to show that it has given satisfactory security to the state of Florida before transacting any business in the state of Florida regarding a trust. 118. The Amended Claim fails to cure the defects of the original Claim. In fact, the Amended Claim negates and nullifies both Claims: It fails to name a defendant; It shows that Plaintiff is not the real party in interest; If fails to show that Plaintiff represents a real party in interest; it alleges that Plaintiff "bequeathed" money to an un-identified defendant as a gift; each of its purported counts fail to state a cause of action upon which this Court can grant any relief to Plaintiff; it fails to show Plaintiff's standing or capacity to sue in this matter; and it fails to establish subject matter jurisdiction of this Court. 119. For all these reasons, both Claims are insufficient and malicious. No amendment can correct their flaws. Likewise, no discovery, directed at any defendant, can fix these flaws. Therefore, this Court should issue sanctions against both the Plaintiff and its attorneys-at-law, accordingly. 19

120. The only jurisdiction this Court has, and the only proper action for the Court to take under the law, is for this Court to strike the Amended Claim and to dismiss Plaintiff's action with prejudice. The Court's lack of jurisdiction prevents the Court from issuing valid discovery orders. WHEREFORE, Mr. Motil moves the Court to strike the Amended Claim, to dismiss Plaintiff's action with prejudice, for appropriate sanctions against Plaintiff and its attorneys-atlaw, for an order denying any more discovery, for taxable costs in defending this action, for findings of fact and conclusions of law, and for such other and further relief as the Court deems appropriate. RESPECTFULLY SUBMITTED by: JAMES A. MOTIL, JR., Defendant-IN-ERROR As my own attorney* 113 S DELANEY AVE AVON PARK FL 33825-3930 (863) 443-1061

________________________________

* The word "attorney" includes a party defending an action in person. --Black's Law Dictionary, 6th Ed., 1990, p. 128 "Attorney." CERTIFICATE OF SERVICE I, James A. Motil, Jr., certify that a copy of the foregoing document was mailed to the person listed below on Wenesday the 28th day of November 2012. ANDREW D FLEISHER ERSKINE & FLEISHER 55 WESTON RD - STE 300 FORT LAUDERDALE FL 33326-1170 Certified by: JAMES A. MOTIL, JR. andrew_fleisher@eflaw.net Toll-Free: (800) 397-9345 Telephone: (954) 384-1490 FAX: (954) 384-4088

___________________________________ 113 S DELANEY AVE AVON PARK FL 33825-3930 (863) 443-1061 20

Florida Rules of Civil Procedure FORM 1.932. OPEN ACCOUNT - COMPLAINT

Plaintiff, A. B., sues defendant, C. D., and alleges: 1. This is an action for damages that (insert jurisdictional amount). 2. Defendant owes plaintiff $.......... that is due with interest since .....(date)....., according to the attached account. WHEREFORE plaintiff demands judgment for damages against defendant.
NOTE:

A copy of the account showing items, time of accrual of each, and amount of each must be attached. ACCOUNT STATED - COMPLAINT

FORM 1.933.

Plaintiff, A. B., sues defendant, C. D., and alleges: 1. This is an action for damages that (insert jurisdictional amount). 2. Before the institution of this action plaintiff and defendant had business transactions between them and on .....(date)....., they agreed to the resulting balance. 3. Plaintiff rendered a statement of it to defendant, a copy being attached, and defendant did not object to the statement. 4. Defendant owes plaintiff $.......... that is due with interest since .....(date)....., on the account. WHEREFORE plaintiff demands judgment for damages against defendant. NOTE: A copy of the account showing items, time of accrual of each, and amount of each must be attached.

Exhibit A

Florida Rules of Civil Procedure FORM 1.935. GOODS SOLD COMPLAINT Plaintiff, A. B., sues defendant, C. D., and alleges: 1. This is an action for damages that (insert jurisdictional amount). 2. Defendant owes plaintiff $.......... that is due with interest since .....(date)....., for the following goods sold and delivered by plaintiff to defendant between ..... (date)....., and .....(date).....: (list goods and prices) WHEREFORE plaintiff demands judgment for damages against defendant.

FORM 1.936.

MONEY LENT COMPLAINT

Plaintiff, A. B., sues defendant, C. D., and alleges: 1. This is an action for damages that (insert jurisdictional amount). 2. Defendant owes plaintiff $.......... that is due with interest since .....(date)....., for money lent by plaintiff to defendant on .....(date)...... WHEREFORE plaintiff demands judgment for damages against defendant.

Exhibit B

Capital One Bank

A foreign state bank & ORIGINAL ACCOUNT OWNER Sold alleged DEBT and became SERVICER

Capital One

Funding, LLC
TRANSFERER

The Bank of NY
A foreign state bank & TRUSTEE

NO assignment back to Plaintiff & NO Notice to Anyone!

if Default
F.S. 673.3021

CAPITAL ONE MASTER

Capital One Bank (USA), N.A. Plaintiff Servicer and Debt Collector
15 USC 1692a(6)(F)(iii)

(in 2008)

TRUST CERTIFICATES
INVESTORS

No notices of assignment per F.S. 559.715

Exhibit C

The 2012 Florida Statutes Title XXXIII REGULATION OF TRADE, COMMERCE, INVESTMENTS, AND SOLICITATIONS Chapter 559 REGULATION OF TRADE, COMMERCE, AND INVESTMENTS, GENERALLY 559.715Assignment of consumer debts. This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt. The assignee is a real party in interest and may bring an action to collect a debt that has been assigned to the assignee and is in default. History.s. 1, ch. 89-69; ss. 6, 13, ch. 93-275; s. 3, ch. 2010-127.

Exhibit D