comments on oral arguments motion order produce hearing

[Brillianthoney]

Any comments/critiques on the arguments below appreciated. I know there are many typos and will clean them up tomorrow.

CONTINUED/ADDITIONAL ORAL ARGUMENTS FOR MOTION TO ORDER PRODUCTION OF DOCUMENTS HEARING <is this titled correctly?

1. The production of documents sought are within the scope of permissible discovery in that they are relevant to the subject matter of this action because the documents are the basis of the Plaintiff’s Quantum Meruit Count, Unjust Enrichment Count, and Breach of Contract Count in the suit brought against Defendant.

2. The elements of a cause of action for breach of contract are: 1) the plaintiff and defendant entered a valid contract, 2) the defendant breached the contract, and 3) the plaintiff suffered damages caused by the defendant’s breach. See Beck v. Lazard Freres & Co., LLC, 175 F.3d 913, 914 (11th Cir. 1999); Air Caledonie International v. AAR Parts Trading, 2004 WL 943209 (S.D. Fla. 2004); Bland v. Freightliner, LLC, 206 F.Supp.2d 1202, 1210 (M.D. Fla. 2002); Knowles v. C.I.T. Corp., 346 So. 2d 1042, 1043 (Fla. 1st DCA 1977); Collections, USA, Inc. v. City of Homestead, 816 So.2d 1225, 1227, n.2 (Fla. 3d DCA 2002); J.J. Gumberg Co. v. Janis Services, Inc., 847 So.2d 1048, 1049 (Fla. 4th DCA 2003); Abbot Laboratories, Inc. v. General Elec. Capital, 765 So. 2d 737, 740 (Fla. 5th DCA 2000).

3. In this case: 1) the Defendant has never entered into a contract with Asset Acceptance LLC nor has Asset Acceptance produced a signed document whereby the defendant agreed to pay Asset Acceptance or admitted the alleged debt was hers, 2) it is impossible for Asset Acceptance LLC to perform the fudiciary obligations of the original creditor of the alleged debt as Asset Acceptance is not a bank, savings and loan, etc. This factual situation renders an impossibility of performance for Asset Acceptance LLC and therefore Defendant’s obligation to perform under the contract is excused because of the impossibility of performance by Asset Acceptance LLC. See Home Design Center Joint Venture v. County Appliance of Naples, Inc, 563 So. 2d 767, 770 (Fla. 2d DCA 1990), 3) The Plaintiff did not suffer damages from the alleged breach of contract as it would be impossible for the Plaintiff to offer the services rendered in the contract and therefore plaintiff could not and did not confer any benefits upon the Defendant. The only damages the Plaintiff might have suffered by the alleged breach of contract are the actual damages (the purchase price) the Plaintiff inflicted upon himself by purchasing the alleged debt without recourse and at risk to himself.

4. The proper measure of damages for breach of a contract is the loss or injury actually sustained rather than the price agreed to be paid on full performance. See Poinsetia Dairy Products v. Wessel Co., 123 Fla. 120, 166 So. 306, 104 A.L.R. 216 (1936). The only damages the Plaintiff might have sustained by the alleged breach of contract are the actual damages (the purchase price) the Plaintiff inflicted upon himself by purchasing the alleged debt without recourse and at risk to himself.

5. The elements of a cause of action for Quantum Meruit are:1) Absence of an express agreement, 2) Plaintiff provided a benefit in the form of goods and services accepted by the defendant, 3) Under ordinary circumstances a reasonable person would

reasonably expect to pay for such benefit, 4) Plaintiff failed to pay for the benefit, and

5) Damages. See Commerce Partnership 8098 Limited Partnership v. Equity Contracting Co., 695 So. 2d 383, 386-87 (Fla. 4th DCA 1997)(discussing in detail relationship between claims for quasi-contract and quantum meruit); Tooltrend, Inc. v. CMT Utensili, SRL, 198 F 3rd 802 (11th Cir. 1999); Ship Const. & Funding Serv. (USA), Inc. v. Star Cruises, PLC, 174 F. Supp. 2nd 1320, 1326-27 (S.D. Fla. 2001); In re DeCecco, 234 B.R. 543, 544 (M.D. Fla. 1999); Moncreif v. Hall, 63 So. 2d 640, 642 (Fla. 1953); W.R. Townsend Contracting, Inc. v. Jensen Civil Const., Inc., 728 So. 2d 297, 305 (Fla. 1st DCA 1999); Daniel Levine & Co. Realtors v. Beach Enter. Ltd., 549 So. 2d 1131, 1132 (Fla. 3rd DCA 1989); Osteen v. Morris, 481 So. 2d 1287, 1289-90 (Fla. 5th DCA 1986).

6. In this case: 2) the Defendant alleges plaintiff did not provide a benefit in the form of goods and services that were accepted by the defendant because of the impossibility of performance by the Plaintiff for such goods and services; 3) the Defendant does not believe under ordinary circumstances a reasonable person would pay for goods or services that were not rendered; 4) the Defendant denies failing to pay for alleged benefits; 5) Before liability in damages can arise, it is necessary that a sufficient causal relation exist between the damage claimed and the act alleged to have caused the damage. See Florida East Coast Ry. Co. v. Peters, 77 Fla. 411, 83 So. 559 (1919); Stager v. Florida East Ry. Co. 163 So. 2d 15 (Fla. Dist. Ct. App. 4th Dist. 1994). The damages recoverable in any case must be certain, both in nature and with respect to the cause from which they proceed. See Pallardy-Watrous Ins. Agency v M. Tucker, Inc., 120 Fla. 895, 163 So. 284 (1935); National Educ. Centers, Inc. v. Kirkland, 635 So. 2d 33, 90 Ed. Law Rep. 1305 (Fla. Dist. Ct. App. 4th Dist. 1993), on reh’g (Feb 2, 1994). There can be no recovery unless it is shown with reasonable certainty that a loss resulted from the wrong alleged. Kenan v. Austin, 146 Fla. 389, 1 So. 2d 174 (1941); Reitano v. Peninsular Bldg. Supply Co., 262 So. 2d 710 (Fla. Dist. Ct. App. 2d Dist. 1972); Westbtook V. Bacskai, 103 So. 2d 241 (Fla. Dist. Ct. App. 3d Dist. 1958). Florida law requires that the injured party take reasonable steps to limit the extent of the injury and under the doctrine of avoidable consequences, a party cannot recover damages flowing from consequences that the party could reasonably have avoided by the exercise of due care. See Azemco (North America), Inc. v. Brown, 553 So. 2d 1245 (Fla. Dist. Ct. App. 3d Dist. 1989); Juvenile Diabetes Foundation v. Rievman, 370 So. 2d 33 (Fla. Dist. Ct. App. 3d Dist. 1979).

If a plaintiff, by the reasonable exertion or care, can prevent damages resulting from the defendant’s wrongful acts, he or she has a duty to do so, and as far as prevention is possible, recovery is precluded. See Nello L. Teer Co. v. Hollywood Golf Estates, Inc., 324 F.2d 669 (5th Cir. 1963); Moses v Autuono, 56 Fla. 499, 47 So. 925 (1908); Winter v. American Auto. a&#036;&#036;’n, 149 So. 2d 386 (Fla. Dist. Ct. App. 3d Dist. 1963). The plaintiff’s claim fails to show a mitigation of the alleged damages, therefore, relief for such a claim is precluded. The factual allegations of the plaintiff’s claim shows the plaintiff intentionally brought injury to himself by purchasing without recourse from the original creditor the defaulted debt allegedly belonging to the Defendant.

7. Now, there is a disparity between the purchase price (the actual damages the Plaintiff suffered by doing injury to himself by purchasing the debt) and the alleged value of the alleged debt, therefore, any damages the Plaintiff might be entitled to for such a claim is an equitable issue. The only equity the Plaintiff has in the alleged debt is for the amount the Plaintiff paid to purchase the alleged debt. The granting of the Plaintiff’s demand in the Complaint would result in unjust enrichment as the Plaintiff would receive more money than Plaintiff is entitled to receive.

8. The elements of a cause of action for unjust enrichment are: 1) Plaintiff has conferred benefit on the defendant, who has knowledge thereof, 2) Defendant voluntarily accepts and retains the benefit conferred, and 3) The circumstances render the defendant’s retention of the benefit inequitable unless the defendant pays to the plaintiff the value of the benefit. See Nova Information Systems, Inc. v. Greenwich Insurance Co., 365 F.3d 996, 1006-07 (11th Cir. 2004); Greenberg v. Miami Children's Hospital Reseach Institute, Inc., 264 F.Supp.2d 1064, 1072 (S.D.Fla. 2003); Shibata v. Lim, 133 F. Supp. 2d 1311, 1316 (M.D. Fla. 2000); Cole Taylor Bank v. Shannon, 772 So.2d 546, 551 (Fla. 1st DCA 2000); Swindell v. Crowson, 712 So. 2d 1162, 1163 (Fla. 2d DCA 1998); N.G.L. Travel Assoc. v. Celebrity Cruises, Inc., 764 So.2d 672, 675 n. 5 (Fla. 3rd DCA 2000); Cohen v. Kravit Estate Buyers, Inc., 843 So.2d 989, 992 (Fla. 4th DCA 2003); Duncan v. Kasim, Inc., 2002 WL 125686, (Fla. 5th DCA 2002); N.G.L. Travel Associates v. Celebrite Cruitses, Inc., 764 So.2d 672, 675, n. 5 (Fla. 3d DCA 2000).

9. In this case the Defendant alleges that the Plaintiff did not extend credit to the Defendant or confer any fiduciary benefits upon the Defendant as it is not a bank, savings and loan, or fiduciary. The allegations upon which the Plaintiff rely are distinct from the alleged contract Defendant had with the original creditor and therefore should not be seen as an enforcement of that contract.

10. Justice Terrell authored an opinion for the Florida Supreme Court in 1953 which supports my conclusion. In Wood v. Black, 60 So.2d 15 (Fla. 1952), the court held that a general contractor who had partially completed the building of a house without a license, hence the illegality of the contract, could recover the reasonable value of labor and material furnished based on quantum meruit. The court held that Wood was not seeking to recover on the contract. He was seeking to recover the actual cost of labor, material and services furnished to Black with Black’s knowledge and approval.

11. This case is even a step removed from the Wood case. JDB did not contract with the Defendant to offer an extension of credit, banking services, or fiduciary services. JDB bought the alleged defaulted debt of the defendant without recourse and at their own risk for the sole purpose of profit. The only entitlement JDB may have to an unjust enrichment claim would be for the actual damages (the purchase price of the alleged debt) they sustained in their attempt to make a profit. Damages which are the results of acts or commissions committed by the Plaintiff.

12. The FDCPA (Fair Debt Collection Practices Act) covers the activities of a “debt collector.” There is a two-part definition of “debt collector”: any person [1] who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or [2] who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. 15 U.S.C. 1692a(6). The creditor itself is excluded from the definition of “debt collector,” unless it uses a name which suggests that a third-party debt collector is involved in the collection process.

13. A company which takes an assignment of a debt in default, and is a business the principal purpose of which is to collect debts, may be subject to the Act, even if the assignment is permanent and without any further rights in the assignor. See Commercial Service of Perry v. Fitzgerald, 856 P.2d 58, 62 (Colo. App. 1993).

14. As long as the purchaser asserts that the debt was in default when acquired, the FDCPA applies, even if the assertion proves to be false. See Schlosser v. Fairbanks Capital Corp., 323 F. 3d 534 (7th Cir. 2003).

15. During the Motion for Order to Produce Documents hearing, the Plaintiff’s attorney stated that the Plaintiff was a debt buyer who had purchased the defaulted debt allegedly belonging to the Defendant. This factual admission by Plaintiff’s counsel supports the Defendant’s conclusion that the Plaintiff is “a person” subject to the FDCPA.

16. Federal and state courts have concurrent jurisdiction of FDCPA suits. 15 U.S.C. 1692k(d).

17. Since the Plaintiff is subject to the FDCPA, caselaw concerning FDCPA issues are relevant to the Plaintiff’s Complaint.

18. One of the most important rights conferred by the FDCPA is the debtor’s right to “validation” or “verification” of a debt under 15 U.S.C. 1692g.

19. Among the areas that have been held discoverable in FDCPA cases are:

(a) The source of a debt and the amount a bad debt buyer paid for debt, 213 (D. Conn. 1998); Coppola v. Arrow Financial Services, 302 CV577, 2002 WL 32173704 (D. Conn., Oct 29, 2000); Kimbro v. IC System, 301CV1676, 2002 WL 1816820 (D. Conn. July 22, 2002).

( How amount sought was calculated. Coppola v. Arrow Financial Services, 302 CV577, 2002 WL 32173704 (D. Conn., Oct 29, 2000); Kimbro v. IC System, 301 CV1676, 2002 WL 1816820 (D. Conn. July 22, 2002).

© Where in issue, list of reports to credit bureaus. Coppola v. Arrow Financial

Services, 302CV577, 2002 WL 32173704 (D.Conn., Oct. 29, 2002).

(d) Documents conferring authority on defendant to collect debt. Coppola v.

Arrow Financial Services, 302CV577, 2002 WL 32173704 (D.Conn., Oct. 29, 2002); Kimbro v. IC System, 301CV1676, 2002 WL 1816820 (D.Conn. July 22, 2002); Yancey v. Hooten, 180 F.R.D. 203 (D.Conn. 1998)

20. Coppola v. Arrow Financial Services, 302 CV577, 2002 WL 32173704 (D. Conn., Oct 29, 2000)-“Information relating to the purchase of a bad debt is not proprietary or burdensome [emphasis added]. Debtor must phrase their request clearly to obtain: The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt.”

21. In order to receive the protection of attorney-client privilege, a communication must, inter alia, be made for the purpose of securing primarily either

(a) an opinion on law,

( legal services, or

© assistance in some legal proceeding.

In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984). The privilege does not extend to the provision of business or other non-legal advice simply because a lawyer happens to be involved. Communications with a lawyer that relate primarily to non-legal purposes, for example, business, technical or corporate public relations purposes, are not privileged. See, e.g., Fine v. Facet Aerospace Prods. Co., 133 F.R.D. 439, 444 (S.D.N.Y. 1990) (report not privileged where communications by in-house counsel were likely made for general business purposes and the report contained no legal advice); United States Postal Service v. Phelps Dodge Ref. Corp, 852 F.Supp. 156, 163 (E.D.N.Y. 1994) (communications relating to lobbying and legislative activities between in-house counsel and law firm retained to lobby not privileged). Under these principles, it is clear that if, for example, Asset Acceptance LLC routinely maintains business records of its purchase of a defaulted debt or Providian Bank routinely maintains business records of its accounts charged to profit and loss, the business records would not be privileged.

22. Caselaw, Coppola v. Arrow Financial Services, 302 CV577, 2002 WL 32173704 (D. Conn., Oct 29, 2000), has already established that the amount a “debt buyer” purchased for a debt is not proprietary or burdensome therefore the amount the Plaintiff paid for the alleged debt of the Defendant is not protected by trade secret as the Plaintiff’s attorney argued during the Motion for Order to Produce Documents hearing.

23. The Defendant stating she had received documents from the Plaintiff that the Plaintiff’s attorney identified as about 20 statements and a signed contract is not an admittance by the Defendant that the alleged debt is hers.

24. Whereas the Defendant has demonstrated the relevance of knowing the amount the Plaintiff paid for alleged debt, and whereas the Defendant has demonstrated that the amount the Plaintiff paid for the alleged debt is not protected by trade secrete, and whereas the purpose of sanctions for discovery abuse is both to punish the recalcitrant party in hopes that the sanction will serve as a deterrent of similar conduct by others in future litigation.

25. The Defendant respectfully requests that Plaintiff/Plaintiff’s counsel be ordered to provide a copy of documents showing what jdb paid for the alleged debt of the Defendant.

26. In addition, the Defendant also requests that the Plaintiff’s lawsuit be dismissed with prejudice should Plaintiff not comply with an order to compel production.

27. This motion is also based on the papers and records filed in this action and on any oral and documentary evidence that was presented at the hearing on this motion.