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, a Foreign Profit Corporation not Registered with the State of Florida, Plaintiff, v. KELLIE J. MOTIL, a Resident of Highlands County, Defendant. _____________________________/ Tuesday, 31 July 2012 CASE NO. 12 000 234 - SPS
DEFENDANT’S MOTION to DISMISS and FOR SANCTIONS with DEMAND FOR JURY TRIAL Comes now the Defendant, KELLIE J. MOTIL, (hereafter "Kellie") pursuant to Florida Rules of Civil Procedure, Rule 1.140 and Sm. Cl. R. 7.135 to move the Court to dismiss Plaintiff's action and to issue sanctions against its attorney, based upon the grounds that: A) Plaintiff failed to file a valid non-resident bond under Florida Statutes 57.011 and 454.20; B) Plaintiff's "Statement of Claim" (the "Claim") fails to attach a cause of action or to identify the parties, C) fails to show Plaintiff's capacity to sue, D) fails to show standing to sue, and E) fails to state a cause of action. F) Plaintiff's attorney, Noam J. Cohen (Fla. Bar No. 0271240) and the Law Offices of Noam J. Cohen, P.A., in filing this Claim have knowingly filed two documents that are fraudulent on their faces. G) Plaintiff's prayer for attorney's fees is negated by the attachments to the Claim. If the Claim is not dismissed, Defendant demands trial by jury. Defendant moves the Court, pursuant to Florida Small Claims Rule 7.020 (c), to order that this action proceed under any Florida Rules of Civil Procedure mentioned herein that are not, already, mentioned in Fla. Sm. Cl. R. 7.020(a). A. Cohen's Purported Bond Is Not Valid 1. The Claim was filed on 4 June 2012--more than fifty (50) days ago. 2. Plaintiff failed to file a nonresident bond within thirty (30) days after its Complaint was filed pursuant to Florida Statute 57.011. That deadline was 5 July 2012. 3. Plaintiff was served with a notice of its failure to file on 6 July 2012.
4. Although the 57.011 statute permits a nonresident plaintiff to file the bond during the 20-day notice period, Plaintiff has failed to file a valid non-resident bond. The statute does not say that Plaintiff's attorney may deposit $100 with the Court in lieu of a bond signed by Plaintiff and guaranteed by a surety. 5. Florida Statute 831.01 says, in pertinent part:.”Whoever falsely makes … a public record, or a certificate, … or a … bond,, with intent to injure or defraud any person, shall be guilty of a felony of the third degree....” 6. The purported bond filed by Plaintiff's attorney is not valid. The Florida Rules of Civil Procedure, Form 1.960 shows the bond-form approved by the Florida Supreme Court. The Form contains the words: “SIGNED AND SEALED.” The purported bond has no “SEAL” and it is not “SIGNED” by the Plaintiff. The Form show's a place for the “Surety's name” and a line for the signature of the “Surety.” The purported bond has no surety's name and no signature for a surety. 7. The only person who signed the purported bond is the Plaintiff's attorney. However, Florida Statute 454.20 says: “No attorney shall become surety on … any bond of a client in judicial proceedings. In agreement with this law, the Florida Rules of Judicial Administration 2.505(c), also, says: “No attorney … shall enter themselves or be taken as bail or surety in any proceeding in court.” 8. Apparently, Plaintiff's attorney, Noam J. Cohen (Fla. Bar No. 0271240) prepared the purported bond, certified—by his signature—that he read the bond, published the bond by filing it with the Clerk of Courts as a public record, and thereby committed a fraud upon the court in the process. The Florida Rules of Judicial Administration 2.515 (a) says, in pertinent part: “The signature of an attorney shall constitute a certificate by the attorney that the attorney has read the pleading or other paper; [and] that ... there is good ground to support it....” 9. "[A] dismissal under this statute should be with prejudice." See Trawick, Fla. Prac. and Proc. § 1:11 (2010 ed.) at page 13. B. The Vague Claim Fails to Attach a Cause of Action or to Identify the Parties 10. Florida Small Claims Rules 7.050(a)(1) says: “If the claim is based on a written document, a copy or the material part thereof shall be attached to the statement of claim.” This same statement appears as a “NOTE” at the top of the INSTRUCTION SHEET attached to the Claim. The word “shall” is mandatory. 2
11. The Claim alleges a “written instrument, a copy of which is attached hereto.” However, the tiny copy of a “Retail Installment Contract and Security Agreement” attached to the Claim says the “Seller” is “Kane's Auto Exchange,” not the Plaintiff. 12. The Claim fails to mention any assignment, or other transfer, of the alleged debt/contract from the Seller to Plaintiff. 13. Although the caption of the Claim names a Plaintiff and a Defendant, the Claim fails to identify either the Plaintiff or the Defendant in the body of the Claim. “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. C. The Claim Fails to Show Plaintiff's Capacity to Sue 14. Plaintiff does not make any statement as to its "capacity" to sue or be sued in its Claim. Florida Rules of Civil Procedure, Rule 1.120 (a) says: It is ... necessary to aver the capacity of a party to sue or be sued, ... to the extent required to show the jurisdiction of the court.... [Emphasis added.] D. The Claim Fails to Show Plaintiff's Standing to Sue 15. The Claim alleges a “written instrument, a copy of which is attached hereto.” However, the tiny copy of a “Retail Installment Contract and Security Agreement” attached to the Claim says the “Seller” is “Kane's Auto Exchange,” not the Plaintiff. 16. The Claim fails to mention any assignment, or other transfer, of the alleged debt/contract from the Seller to Plaintiff. In Florida, a plaintiff must plead and prove the ultimate facts that give rise to its cause of action against a defendant. 17. Until Plaintiff has standing, the Court lacks jurisdiction to hear this case. See Fl. R. Civ. P., Rule 1.140(b). The United States Court of Appeals for the Third Circuit has explained, in Goode v. City of Philadelphia, 539 F.3d 311, 327 (3rd Cir. 2008), that: [O]nce the District Court determined that appellants did not have standing, it necessarily determined that it did not have jurisdiction and thus it could not decide the merits of the case. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 1012 (1998) (“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”) (internal quotation marks omitted); PSA, LLC v. Gonzales, 461 F. Supp. 2d 351, 359 (E.D. Pa. 2006).
E. The Claim Fails to State a Cause of Action for Any Count 18. Plaintiff never sold any “goods” to Defendant. Plaintiff's first count for “Goods Sold” fails to say that any money is now “owing” to Plaintiff from Defendant. The Claim fails to list the “jurisdictional amount” of the court, fails to state any interest, any dates, any “delivery” of goods, nor any list of goods, prices or credits pursuant to Fla. Sm. Cl. R., Form 7.331. Attachments to the Claim negate this Count. 19. Plaintiff never “lent money” to Defendant. Plaintiff's second count for “Money Lent” fails to say that any money is now “owing” to Plaintiff from Defendant. The Claim fails to list the “jurisdictional amount” of the court, fails to allege how much money Plaintiff “lent,” fails to allege any dates or any interest, pursuant to Fla. Sm. Cl. R., Form 7.333. Attachments to the Claim negate this Count. 20. The Plaintiff's third count for “Accounts Stated” fails to list the “jurisdictional amount” of the court. 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 Defendant to pay an agreed-upon balance. Attachments to the Claim negate this Count. 21. There were no “transactions” between the parties herein and no future transactions are expected by either party. The Claim does not allege any “promise to pay.” 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 agreement that a certain balance is correct and due, and an express or implicit promise to pay that balance. See Georges v. Friedman & Co., P.A., 499 So.2d 59, 59 (Fla. 4th DCA 1986). An account opened is an unsettled debt arising from items of work and labor, with the expectation of further transactions subject to future settlements and adjustment. See Robert W. Gottfried, Inc. v. Cole, 454 So.2d 695, 696 (Fla. 4th DCA 1984). 1 22. Plaintiff's fourth count for “written instrument” is incomplete. Attachments to the Claim negate this Count. This Count is vague and incoherent. 23. The Supreme Court of Florida 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.”2
South Motor v Accountable, 707 So.2d 909 (3rd DCA, 1998), at 912. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000), at 1242.
24. The fifth and last count is for “Unjust Enrichment.” The Claim does not allege that Defendant ever accepted any benefit, or retained any benefit from Plaintiff. The Small Claims Court is only for “actions at law.” Fla. Sm. Cl. R. 7.010(b). This count can only be tried in a court of “equity” such as the circuit court, not in the Small Claims Court. The Florida Banking Statute of Frauds says: “A credit agreement may not be implied from the relationship, fiduciary, or otherwise, of the creditor and the debtor.” F.S. 687.0304(3)(b). 25. Neither "statements" nor "invoices" are "promises to pay" and do not make a contract between two parties. See Robert Lee Lewis v. United States of America, 301 F.2d 787, 10th Cir. March 20, 1962. F. The Attorney, Noam J. Cohen, Filed Fraudulent Papers 26. As stated above (paragraphs 5 – 8), Mr. Cohen filed a fraudulent public record (a purported bond) with the intent to injure Defendant. He filed another public record that is fraudulent upon its face. 27. The Claim filed by Mr. Cohen is, also, fraudulent. The Claim was, evidently, prepared by Mr. Cohen or his “Law Offices.” 28. The Claim bears a jurat by a Florida Notary, Lashawnda Smith. Upon information and belief, the Plaintiff resides in Ohio. The jurat does not state the “county” or the “state” where Lashawnda took the alleged oath. The jurat says: “Sworn to and subscribed before me this May 16, 2012 The affiant is personally known to me.” 29. The Claim fails to show the name of the “affiant.” The Claim ends by saying “The Plaintiff says the foregoing is a just and true statement of the amount owed by the Defendant to Plaintiff....” However, there is no individual's name listed for the Plaintiff and no signature appears on the Claim for the Plaintiff, or for the “affiant.”. 30. The attorney's signature does appear on the Claim, thus certifying that he has “read the pleading.” Mr. Cohen prepared the Claim. Mr. Cohen, evidently, expected a Florida notary to take an oath for someone in another state. This is, at best, unethical from the get go. 31. If Mr. Cohen tries to justify his fraud by saying that he is the “affiant,” then he has disqualified himself as the attorney for his client, because he cannot be both the attorney and a witness to material facts for his client. Actually, he is not the “affiant” because it is the “Plaintiff” who says the foregoing Claim is “true,” not Mr. Cohen. 32. Mr. Cohen is not alleged to be the “Plaintiff” in the Claim.
33. Plaintiff's Claim should be dismissed with prejudice and both Mr. Cohen and his “Law Offices” should be sanctioned appropriately pursuant to Florida Statute 57.105. 34. Without a valid affidavit, the business-record attachments to the Claim are without a foundation and are inadmissible as evidence because they are hearsay. F.S. 90.801. G. Attorney's Fees Are Not Allowed 35. The Claim prays for “attorney's fees,” but fails to state whether those fees are allowed by either a statute or by a contract. “Attorney's fees” are only mentioned on the back (page 2) of the alleged “Rental Installment Contract and Security Agreement” under the words, “ASSIGNMENT BY SELLER,” but this “Assignment” is not valid because the box selecting this “Assignment” on the front page (page 1) is not checked, nor is it dated. The Court cannot enforce a blank agreement. Dates are material facts. 36. “There is no entitlement to attorney's fees when a party fails to plead or prove its entitlement to such an award.” Millard v. Brannan, 554 So.2d 1248, (2nd DCA, 1989) at 1251. 37. Granting this Claim would unjustly enrich Plaintiff because Kellie never had a contract (“meeting of the minds”) with Plaintiff, Kellie would suffer a double loss3, such a loss would be unconscionable, and Plaintiff has unclean hands due to the fraudulent papers filed herein. WHEREFORE, Defendant moves the Court to dismiss Plaintiff's Statement of Claim with prejudice, for sanctions against Noam J. Cohen and his “Law Offices,” for Defendant's 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: ______________________________ KELLIE J.. MOTIL, Defendant, self-represented 3318 BOLIDE STREET SEBRING, FL 33872-3201 (863) 385-5600
CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was mailed to the person listed below on the 31st day of July 2012. NOAM J. COHEN LAW OFFICES OF NOAM J. COHEN, P.A. 13899 BISCAYNE BLVD STE 305 MIAMI FL 33181-1647 Certified by: KELLIE J. MOTIL
email@example.com No Toll-Free Telephone Telephone: (305) 341-3545 FAX: (305) 948-6665 ____________________________
Royal Jones v. First Thermal, 566 So.2d 853 (1st DCA, 1990).
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