IN THE COUNTY COURT IN AND FOR HIGHLANDS COUNTY, FLORIDA CAPITAL ONE BANK (USA), N.A., Plaintiff, v.

JAMES A. MOTIL, Defendant. _____________________________/ Filed Tuesday, 23 October 2012 CASE NO. 11 000 301 - SPS

JAMES A MOTIL JRS: 1) RESPONSE TO "PLAINTIFF'S MOTION FOR LEAVE TO AMEND STATEMENT OF CLAIM"; 2) MOTION TO DISMISS; or 3) MOTION FOR JUDGMENT ON THE PLEADINGS The Defendant-IN-ERROR, James A. Motil, Jr., (hereafter "James") RESPONDS to "Plaintiff's Motion for Leave to Amend Statement of Claim," (Motion to Amend) and pursuant to Florida Rules of Civil Procedure, Rule 1.140(b) and James MOVES the Court to DISMISS Plaintiff's action for failure to state a cause of action and because the Court lacks subject matter jurisdiction, orin the alternativefor judgment on the pleadings against Plaintiff as shown below. COURT NEVER HAD JURISDICTION - PART ONE 1. Just as the Motion says, the initial Statement of Claim is deficient. Plaintiff's vague, un-concise and incomplete Claim alleges an agreement, but fails to either state the terms of said agreement or to attach a copy to the Claim. Thus Plaintiff has failed to show its standing, failed to show a cause of action and failed to show that this Court has subject matter jurisdiction. Florida Small Claims Rule 7.050 (a)(1) says: 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.

2. Plaintiff's one-page, bare-bones Claim alleges: "This is an action for damages for non payment of a credit card issued under Federal Law." Although the Claim fails to identify which "Federal Law," James points out a federal law regarding the "issuance of credit cards,": No credit card shall be issued except in response to a request or application therefor. 15 USC 1642, effective 26 October 1970 - Emphasis added. 3. Although the Claim says that someone "requested" credit, no copy of said request, or any "application" for credit, is attached to the Claim. 4. In Plaintiff's Certificate, the purported "affiant," Richard A. Napolitano (Richard) swears under oath, more than one year after filing its Claim, that "the Plaintiff cannot locate a copy of" the "Application ... for ... a credit card ...." The record shows, no such signed application is attached to the Certificate. Florida Rule of Civil Procedure 1.140(b) says: "any ground showing that the court lacks jurisdiction of the subject matter may be made at any time." 5. Without a copy of the alleged agreement being attached, the Claim fails to state a cause of action, the Court has no jurisdiction and the Court should dismiss Plaintiff's action. 6. Plaintiff's Claim is not a properly filed pleading because it fails to either state a cause of action or to show Plaintiff's standing, and although Plaintiff has requested leave to file an amended claim, Plaintiff failed to attach a copy of the proposed amended claim to its Motion to Amend. Fla. R. Civ. P. 1.190(a) says: If a party files a motion to amend a pleading, the party shall attach the proposed amended pleading to the motion. 7. The purpose of the pretrial hearing is to narrow the issues, deal with pretrial motions, identify witnesses, and set a trial date, when the parties cannot settle the case through mediation. To date, a trial has not been set. Early in this case, James filed a motion to dismiss and another one is pending now, but none has been granted, yet. Now Plaintiff, itself, admits that its Claim is not adequate and, thus, needs to be amended. At this point, there is no triable issue and the action should be dismissed, summarily. 8. Pursuant to Fla. Sm. Cl. R. 7.135:
At pretrial conference or at any subsequent hearing, if there is no triable issue, the court shall summarily enter an appropriate order or judgment.

9. Plaintiff should have had all its ducks in a row before it filed its Claim. Instead, it filed a Claim without any standing and without any "cause of action" attached to the Claim. To remedy this shortfall, Plaintiff utilized several dilatory tactics to stall for time to locate the non-existent "request" or "application" for credit. Plaintiff has stretched this case out over one year by pushing the Court into ordering James to file a non-mandatory Answer and by demanding nonmandatory discovery requests that were not required in Small Claims Court. The Court ordered limited discovery: no production of documents and only a deposition to be set up by Plaintiff within a limited time after the Answer was served. Plaintiff failed to obey the Court's order, and instead, made a dilatory motion to sequester James when the law does not allow a defendant to be sequestered from witnesses. 10. The other dilatory papers filed by Plaintiff were the ones regarding "ghost-writing" and the unlicensed practice of law (UPL) filed in October 2011. Mr. Erskine accused James of employing tactics to "expedite" this case. He made this same charge against other people. Neither the Plaintiff nor its attorneys have any standing to pursue an UPL case. Such a case must be presented, under oath, to the Florida Bar. 11. Plaintiff's attorneys have filed a ream of dilatory papers (500 sheets) without filing the single piece of paper which is required to state a cause of action. The "request" for credit, with James's signature on it, is still missing. 12. To allow amendment, now, after more than one year since the Claim was filed would be prejudicial to James, because he has, already raised several issues of the insufficiency of the Claim and has, to date, been denied or ignored when the action should have been dismissed. Allowing Plaintiff such an extreme length of time to make its case is to, prejudicially, deny James his right to a speedy and inexpensive trial. 13. The word concise means, "expressing or covering much in few words; brief in form but comprehensive in scope."1 In other words, a plaintiff should fully state its claim without using any extra words. All the ultimate facts must be alleged. Confidentiality does not stop plaintiffs from stating their legitimate claims. Plaintiff's attorneys keep throwing lots of papers and lots of words at the Court in hopes that the Court will overlook the one piece of paper that is missing: The signed application for credit! 14. So far, this avalanche of paper has kept the action from being dismissed, but it won't be much help to Plaintiff on appeal. A whole lot of nothing is, still, nothing.
1

See: http://dictionary.reference.com/browse/concise 3

15. The filing of Plaintiff's Certificate (a "supplemental exhibit"), separate from the Claim, is an attempt to go around the requirement that its cause of action be attached to the Claim. In a foreclosure case where the plaintiff filed a note (a.k.a. a "promise to pay" or an "agreement") apart from its complaint, the Second District Court of Appeals recently said: We view [Plaintiff]'s filing of a copy of the [agreement] ... as a supplemental exhibit to its complaint ... as an attempt to amend its complaint in violation of Florida Rule of Civil Procedure 1.190(a). [Plaintiff] did not seek leave of court or the consent of [Defendant] to amend its complaint. A pleading filed in violation of rule 1.190(a) is a nullity, and the controversy should be determined based on the properly filed pleadings. COURT NEVER HAD JURISDICTION - PART TWO 16. According to Black's Law Dictionary, 5th Edition, "assumpsit" is one person's promise to "pay something to another." It can be either oral or written. It can be express or implied, but it cannot be "under seal." Florida law does not allow credit agreements to be either "oral" or "implied" in damage amounts over $500 as in this case. 17. Although some oral agreements are enforceable in Florida, the implied agreement for credit--as alleged in the Claim--is not enforceable in Florida courts pursuant to at least three (3) statutes of fraud: 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....; 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. 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; and F.S. 725.01: No action shall be brought ... upon any agreement that is not to be performed within the space of 1 year from the making thereof, ... unless the agreement ... shall be in writing and signed by the party to be charged therewith.... 18. An "'oral agreement' does not overcome the Banking Statute of Frauds." University Creek Associates II, Ltd. v. Boston American Financial Group, Inc., 100 F.Supp 2d 1345, 1351, Case No. 98-6643-CIV-Highsmith, U.S. Dist. Ct. for the So. Dist. of Florida.

19. In Florida, as shown above, credit agreements must be in writing and may not be implied. Furthermore, a claim for promissory estoppel does not survive the statute of frauds. See Shore v. Seagate, 842 So.2d 1010, at 1012 (Fla. 4th D.C.A., 2003). 20. Plaintiff filed a "Notice of Filing Documents" on 6 February 2012 which says on the first page: The Plaintiff is attempting to locate the original application for the issuance of the credit card not attached. --Emphasis added. 21. Because the Claim fails to provide a copy of a written contract signed by either the named Defendant or James, the Claim appears to be based upon an unwritten contract. The Claim, itself, does not allege the terms of any contract and unwritten contracts for credit are not enforceable in Florida courts. Thus, the Claim should be dismissed with prejudice. COURT NEVER HAD JURISDICTION - PART THREE 22. Under the holding in Tax Certificate Redemption's2 it 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. See Strommen, 927 So. 2d at 179; Fedan Corp. v. Reina, 695 So. 2d 1282, 1283 (Fla. 3d DCA 1997) (citing Malone v. Meres, 91 Fla. 709, 724, 109 So. 677, 683 (1926)). "[A] judgment entered where the court lacks subject matter jurisdiction is a nullity." Strommen, 927 So. 2d at 179; see also Ben-David v. Educ. Res. Inst., Inc., 974 So. 2d 1138, 1139 (Fla. 3d DCA 2008). 23. Regarding "assumpsit," Black's Law Dictionary (BLD) at p. 112 says it is: "A liberal and equitable action, applicable to almost every case where money has been received which in equity and good conscience ought to be refunded; express promise is not necessary to sustain action, but it may be maintained whenever anything is received or done from the circumstances of which the law implies a promise of compensation." [Emphasis added.]

Tax Certificate Redemption's, Inc. v. Gerald C. Meitz, 705 So.2d 64 (Fla. 4th DCA, 1997). 5

24. The Claim purports to state, "an action for indebitatus and/or general assumpsit unjust enrichment." BLD says: "General (common or indebitatus) assumpsit is "brought upon the promise or contract implied by law in certain cases." [Emphasis added.] 25. The Claim also mentions, "money had or money received." BLD says that "Assumpsit for money had and received" is of "equitable character and lies, in general, whenever defendant has received money which in equity and good conscience he ought to pay to plaintiff." Emphasis added. 26. The Florida Small Claims Rules state very clearly that: These rules are applicable to all actions at law of a civil nature in the county courts in which the demand or value of property ... does not exceed $5,000 .... Fla. Sm. Cl. R. 7.010(b) --Emphasis added. 27. Florida law says that the circuit court: [S]hall have exclusive original jurisdiction: In all cases in equity including all cases relating to juveniles except traffic offenses.... F.S. 26.012(2)(c) Emphasis added. 28. County courts have only limited and restricted equity jurisdiction in Florida. The law 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. F.S. 34.01(4) Emphasis added. 29. It appears from the statutes, above, that the circuit court has exclusive original jurisdiction ... [i]n all cases in equity, with the single exception of juvenile traffic cases that may be heard by the county court. The law, apparently, grants no other equity jurisdiction to the county court. 30. An action seeking a remedy under the theory of unjust enrichment is one in equity, not at law. Although Florida courts have only one form of action, they still embrace the two distinct doctrines of law and equity which originated in England. English law had two basic courts: a court of lawor common law; and a chancery courtor court of equity. Over time 6

the common-law court became costly, bound by precedent and cumbersome. The chancery court was created to solve these problems by resolving controversies with fairness, or equity, as determined by the mind of the judge according to the circumstances of each case. Eventually, these two courts began to compete and an agreement was reached that when any plaintiff had at least one at law, or legal cause of action, then the plaintiff must first go to a common-law court and resolve the legal issues. Then, if the plaintiff exhausted all legal actions without obtaining a remedy, then the plaintiff could bring an action in equity to the chancery court. 31. Today, in Florida, we see a reflection of the conflict between the two British courts common law and equityin the elements of the cause of action for unjust enrichment. To recover under an unjust enrichment theory, the following elements must be proven: 1) lack of an adequate remedy at law; 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 for him or her to do so without paying the value of it (i.e., an injustice). Challenge Air Transport, Inc. v. Transportes Aereos Nacionales, S.A., 520 So. 2d 323 (Fla. 3d DCA 1988). Distinguishing Quantum Meruit and Unjust Enrichment ... by H. Hugh McConnell Florida Bar Journal, March 1997, Volume LXXI, No. 3, Page 88 32. In 1988, the Fifth District Court of Appeal said: The exclusive jurisdiction of equity extends to and embraces ... the equitable concepts of unjust enrichment.... Hutchens v. Maxicenters, 541 So.2d 618 (Fla. 5th DCA 1988) 33. Equity jurisdiction covers the remedy of money damages as shown below: (... the court's equitable powers are more extensive than what is available under a breach of contract action). Remedies ... are, therefore, not limited to setting aside a transfer or forcing disgorgement. See Hansard Constr. Corp. v. Rite Aid of Florida, Inc., 783 So.2d 307, 308 (Fla.Dist.Ct. App. 4th Dist.2001) (holding that FUFTA's catchall phrase allows plaintiffs to seek money damages) Freeman v. First Union National, 329 F.3d 1231, 1234 (U.S. 11th Circ. 2003)

34. From the above, it appears that this small claims court does not have subject matter jurisdiction in this case that includes a cause of action for unjust enrichment, which is an action in equity. Thus, the action should be dismissed with prejudice. WHEREFORE, in light of the foregoing, James A. Motil, Jr., moves the Court to: deny Plaintiff's Motion for Leave to Amend Statement of Claim; dismiss Plaintiff's action with prejudiceor, in the alternative for a judgment on the pleadings against Plaintiff and in favor of James, for James's taxable costs in defending this malicious 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 113 S DELANEY AVE AVON PARK FL 33825-3930 (863) 443-1061

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CERTIFICATE OF SERVICE I, James A. Motil, Jr., certify that a copy of the foregoing document was mailed to the person listed below on the 23rd day of October 2012. ANDREW D FLEISHER ERSKINE & FLEISHER 55 WESTON RD - STE 300 FORT LAUDERDALE FL 33326-1170 Certified by: JAMES A. MOTIL, JR. 113 S DELANEY AVE AVON PARK FL 33825-3930 (863) 443-1061 andrew_fleisher@eflaw.net Toll-Free: (800) 397-9345 Telephone: (954) 384-1490 FAX: (954) 384-4088

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