Bowen v. Wells Fargo Bank NA
Filing
24
OPINION AND ORDER granting in part and denying in part 19 Motion to dismiss First Amended Complaint. The motion is granted as to Count IV and otherwise denied. The requests for rescission and title to the Property in the Wherefore clauses of Counts I and II are stricken. Signed by Judge John E. Steele on 8/17/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BARRY J. BOWEN,
Plaintiff,
vs.
Case No.
2:11-cv-91-FtM-29SPC
WELLS FARGO BANK, N.A.,
Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on defendant’s Motion to
Dismiss Plaintiffs’ First Amended Complaint
May 2, 2011.
(Doc. #19) filed on
Plaintiff filed a Response in Opposition (Doc. #22)
and defendant filed an unauthorized1 Reply (Doc. #23), which the
Court will nonetheless consider.
I.
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take them
in the light most favorable to plaintiff.
Erickson v. Pardus, 551
U.S. 89 (2007); Christopher v. Harbury, 536 U.S. 403, 406 (2002).
“To survive dismissal, the complaint’s allegations must plausibly
suggest that the [plaintiff] has a right to relief, raising that
possibility
above
a
speculative
level;
if
plaintiff’s complaint should be dismissed.”
1
they
do
not,
the
James River Ins. Co.
As authority, defendant cites Local Rule 7.1.
The Middle
District of Florida has a Local Rule 7.01 for admiralty and
maritime cases, but no Local Rule 7.1.
v.
Ground
Down
Eng’g,
Inc.,
540
F.3d
1270,
1274
(11th
Cir.
2008)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007)).
The
former
rule
--
that
“[a]
complaint
should
be
dismissed only if it appears beyond doubt that the plaintiffs can
prove no set of facts which would entitle them to relief,” La
Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir.
2004) -- has been retired by Twombly.
F.3d at 1274.
James River Ins. Co., 540
Thus, the Court engages in a two-step approach:
“When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.”
Ct. 1937, 1950 (2009).
Ashcroft v. Iqbal, 129 S.
Alternatively, dismissal is warranted if,
assuming the truth of the factual allegations of plaintiff’s
complaint, there is a dispositive legal issue which precludes
relief.
Neitzke v. Williams, 490 U.S. 319, 326 (1989); Brown v.
Crawford County, Ga., 960 F.2d 1002, 1009-10 (11th Cir. 1992). The
Court may take judicial notice of matters of public record without
converting a Rule 12(b)(6) to a Rule 56 motion.
Halmos v.
Bomardier Aerospace Corp., 404 F. App’x 376 (11th Cir. 2010).
II.
On March 2, 2011,
plaintiff Barry J. Bowen (plaintiff or
Bowen), through counsel, filed an Amended Complaint against Wells
-2-
Fargo Bank N.A. (defendant or Wells Fargo).2
Taking all the
allegations as true, the following facts are set forth:
Plaintiff owned a residence in Cape Coral, Florida (the
Property) (Doc. #5, ¶ 16), and Wells Fargo owned the Promissory
Note and
mortgage
securing
refinance the Property.
the
funds
(Id., ¶ 17.)
that
plaintiff
used
to
In late 2009, while current
with payments, plaintiff contacted Wells Fargo to discuss a loan
modification due to a change in personal circumstances.
18-19.)
(Id., ¶¶
Wells Fargo responded that they would only consider the
matter if he was 90 days past due on his payments, and instructed
him to stop making his payments.
(Id., ¶ 20.) Plaintiff complied,
but shortly after the 90 days past due date, and before he could
apply for a loan modification program, Wells Fargo initiated
foreclosure proceedings.
(Id., ¶ 21.) Plaintiff was then told by
Wells Fargo to send a hardship letter and seek a stay of the
foreclosure proceedings.
Plaintiff sent the letter, and did not
file an answer to the foreclosure proceedings because Wells Fargo
told him not to do so.
Plaintiff also did not hire an attorney
because Wells Fargo told him one was not needed.
(Id., ¶¶ 22-24.)
A Default (Doc. #19-2, Exh. B) was entered in state court on April
2
On February 25, 2011, the Court issued an Opinion and Order
(Doc. #4) dismissing the underlying Complaint without prejudice for
lack of jurisdiction, with leave to amend. The Amended Complaint
pleads jurisdiction on the basis of diversity and the presence of
a federal question.
The Court is satisfied that federal
jurisdiction is adequately alleged in the First Amended Complaint.
-3-
30, 2010.
Plaintiff provided paperwork requested by Wells Fargo,
and upon calling to ensure receipt, plaintiff learned from Wells
Fargo that it had sold the house at a foreclosure sale on August
16, 2010, to itself.
(Doc. #5, ¶¶ 25, 30.)
The Final Summary
Judgment of Mortgage Foreclosure (Doc. #19-3, Exh. C) in state
court was issued on July 16, 2010, for $180,450.98, with a public
sale to occur on August 16, 2010.
Plaintiff found a Notice posted on his door that he had to
vacate no later than January 20, 2011.
On January 19, 2011,
plaintiff hired counsel but was unsuccessful in blocking his
eviction.
Plaintiff was duly evicted the next day, with the Lee
County Sheriff’s Office appearing at 9:00 a.m. to instruct him to
vacate within the hour.
(Doc. #5, ¶¶ 32-34.)
Real estate agents
and movers “descended upon Bowen’s home” to place his remaining
personal property in bags and leave them on the edge of the
property, and plaintiff was prohibited from setting foot on the
property.
(Id., ¶¶ 35-36.)
Plaintiff’s emergency petition for
writ of mandamus was denied on January 21, 2011.
Bowen v. Wells
Fargo Bank, N.A., 56 So. 3d 2 (Fla. 2d DCA 2011).
(Doc. #19-4,
Exh. D.)
Count
Practices
I
Act
alleges
(FDCPA)
a
claim
for
under
false,
the
Fair
Debt
Collection
deceptive,
and
misleading
representations made in connection with collection of the debt, and
seeks rescission of the Circuit Court Judgment, title to the
-4-
Property, damages in the amount not less than $240,000, and fees
and costs.
Count II alleges a claim under common law fraud, and
seeks rescission of the Circuit Court Judgment, title to the
Property, damages in the amount of $240,000, and attorney fees and
costs.
Count III alleges a claim under the Florida Deceptive and
Unfair Trade Practices Act (FDUTPA), and seeks damages in the
amount of $240,000, punitive damages, and attorney fees and costs.
Count IV alleges a breach of contract, and seeks damages in the
amount of $240,000, punitive damages, and attorney fees and costs.
III.
Defendant argues that the Court lacks jurisdiction pursuant to
the Rooker-Feldman3 doctrine and that the claims are otherwise
barred by res judicata.
Defendant further argues that it is not a
“debt collector” under the FDCPA as a mortgage holder, the claim of
fraud is not pled with the requisite specificity, national banks
are expressly exempted from the scope of FDUTPA, and that the
breach of contract claim fails to state a claim.
A.
Jurisdiction/Rooker-Feldman
Subject matter jurisdiction relates to the Court’s power to
adjudicate a case.
Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct.
2869, 2877 (2010); Reed Elsevier, Inc. v. Muchnick, 130 S. Ct.
1237, 1243 (2010).
“[A] court must first determine whether it has
3
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District
of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
-5-
proper
subject
matter
substantive issues.”
Cir. 1994).
jurisdiction
before
addressing
the
Taylor v. Appleton, 30 F.3d 1365, 1366 (11th
If jurisdiction is found to be lacking, the Court can
not proceed at all; its sole remaining duty is to state that it
lacks jurisdiction and dismiss the case. Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 94 (1998); see also University of S.
Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999)
(“[O]nce a federal court determines that it is without subject
matter jurisdiction, the court is powerless to continue.”).
“The Rooker-Feldman doctrine makes clear that federal district
courts cannot review state court final judgments because that task
is reserved for state appellate courts or, as a last resort, the
United States Supreme Court.”
1260 (11th Cir. 2009).
Casale v. Tillman, 558 F.3d 1258,
This is a narrow doctrine, confined to
“cases brought by state-court losers complaining of injuries caused
by
state-court
proceedings
judgments
commenced
and
rendered
before
inviting
district
rejection of those judgments.”
the
district
court
court
review
and
Lance v. Dennis, 126 S. Ct. 1198,
1201 (2006)(quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 284 (2005)); Casale, 558 F.3d at 1260.
The Eleventh
Circuit has focused on this language as delineating the boundaries
of the Rooker-Feldman doctrine.
Green v. Jefferson County Comm’n,
563 F.3d 1243, 1249-50 (11th Cir. 2009), cert. denied, 130 S. Ct.
-6-
199 (2009); Nicholson v. Shafe, 558 F.3d 1266, 1274 (11th Cir.
2009).
The Rooker-Feldman doctrine applies when:
(1) the party in federal court is the same as the party
in state court; (2) the prior state court ruling was a
final or conclusive judgment on the merits; (3) the party
seeking relief in federal court had a reasonable
opportunity to raise its federal claims in the state
court proceeding; and (4) the issue before the federal
court was either adjudicated by the state court or was
inextricably intertwined with the state court’s judgment.
Parker v. Potter, 368 F. App’x 945, 948 (11th Cir. 2010)(quoting
Storck v. City of Coral Springs, 354 F.3d 1307, 1310 n.1 (11th Cir.
2003)).
“A
claim
is
inextricably
intertwined
if
it
would
effectively nullify the state court judgment, [ ] or it succeeds
only to the extent that the state court wrongly decided the issues.
Casale,
558
F.3d
1258
at
1260(internal
quotation
marks
and
citations omitted).
In the instant case, the parties are the same as the parties
in the state court action, and the state court foreclosure ruling
was a final judgment on the merits.
There is no indication of a
direct appeal of the state court judgment, but the Florida District
Court of Appeals denied an emergency writ of mandamus to stop the
foreclosure. Based on the allegations in the Complaint however, it
is not clear that plaintiff had a reasonable opportunity to raise
his claims in the state court before the entry of the final
judgment.
Additionally,
with
certain
allegations
stricken
(discussed below), there is no indication that the issues raised in
-7-
this federal case were adjudicated by the state court, or that they
were inextricably intertwined with the foreclosure judgment.
Plaintiff argues that he is seeking compensatory damages, and
not seeking to review or overturn the state court foreclosure
action or to have the property returned to him. (Doc. #22, ¶ 1.1.)
Rescission of the state court judgment and return of title to the
property are sought as remedies in Counts I and II.
Such relief
would only be available if the federal court were to invalidate the
state
court
judgment,
jurisdiction to do.
which
it
clearly
does
not
have
the
Therefore, the Court will strike the requests
for rescission and title to the Property in the Wherefore clauses
for Counts I and II.
The motion to dismiss on the basis of the
Rooker-Feldman doctrine is otherwise denied.
B.
Res Judicata
To show res judicata, or claim preclusion, “(1) the prior
decision
must
have
been
rendered
by
a
court
of
competent
jurisdiction; (2) there must have been a final judgment on the
merits; (3) both cases must involve the same parties or their
privies; and (4) both cases must involve the same causes of
action.”
In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th
Cir. 2001).
events
“While claim preclusion bars relitigation of the
underlying
a
previous
judgment,
it
does
not
preclude
litigation of events arising after the filing of the complaint that
-8-
formed the basis of the first lawsuit.”
Curtis v. Citibank, N.A.,
226 F.3d 133, 139 (2d Cir. 2000).
It is undisputed that a state court of competent jurisdiction
issued a final judgment on the foreclosure of the Property, and
that both cases involved the same parties.
This federal case,
however, does not advance the same causes of action as in the state
case.
in
The issues in this federal case stem from the foreclosure,
that
plaintiff
asserts
that
Wells
Fargo’s
actions
and
misrepresentations led to the foreclosure, but the claims are
separate from
the
foreclosure.
“Whether
failure
to
bring
a
compulsory counterclaim in a prior state court proceeding bars a
diversity action on that claim in a federal district court, depends
upon state law.”
Montgomery Ward Dev. Corp. v. Juster, 932 F.2d
1378, 1380 (11th Cir. 1991).4
A compulsory counterclaim must be
pled “provided it arises out of the transaction or occurrence that
is the subject matter of the opposing party’s claim. . . .”
R. Civ. P. 1.170(a).
See also Fed. R. Civ. P. 13(a).
Fla.
In this
case, plaintiff’s claims arise from the alleged oral agreement and
not from the foreclosure proceeding itself.
The Court finds that
plaintiff’s claims do not pass the Londono5 test, and therefore the
4
The Court notes that the Complaint is premised on diversity
jurisdiction and the presence of a federal question.
5
The test for determining whether a claim is compulsory is:
[A] claim has a logical relationship to the original
(continued...)
-9-
claims were not compulsory and are not deemed waived.
See, e.g.,
Aguilar
746
v.
Southeast
Bank,
N.A.,
728
So.
2d
744,
(Fla.
1999)(finding that at the time defaults occurred, no information
was available to assert a compulsory counterclaim and therefore the
logical relationship test in Londono was not met).
The motion to
dismiss based on res judicata will be denied.
C.
FDCPA
Count I alleges that defendant violated the federal Fair Debt
Collection Practices Act (FDCPA).
In 1977, Congress enacted the
FDCPA “to eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain from
using abusive debt collection practices are not competitively
disadvantaged, and to promote consistent State action to protect
consumers against debt collection abuses.”
15 U.S.C. § 1692(e).
The FDCPA prohibits, inter alia, debt collectors from using “any
false,
deceptive,
or
misleading
representation
or
means
in
5
(...continued)
claim if it arises out of the same aggregate of operative
facts as the original claim in two senses: (1) that the
same aggregate of operative facts serves as the basis of
both claims; or (2) that the aggregate core of facts upon
which the original claim rests activates additional legal
rights in a party defendant that would otherwise remain
dormant.
Londono v. Turkey Creek, Inc., 609 So. 2d 14, 20 (Fla. 1992)(citing
Neil v. S. Fla. Auto Painters, Inc., 397 So. 2d 1160 (Fla. 3d DCA
1981)). The Court does not find the same operative facts are at
issue in both claims, even if plaintiff’s claims arose as a result
of the original claim coming to fruition.
-10-
connection with the collection of any debt.”
FDCPA
provides
for
a
civil
cause
of
Id. § 1692e.
action
to
enforce
The
its
provisions, with debt collectors who violate the Act liable for
actual damages, statutory damages up to $1,000, and reasonable
attorney's fees and costs.
15 U.S.C. § 1692k(a)(1)-(3)).
A “debt collector” is defined as
any person 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 who
regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or
due another. Notwithstanding the exclusion provided by
clause (F) of the last sentence of this paragraph, the
term includes any creditor who, in the process of
collecting his own debts, uses any name other than his
own which would indicate that a third person is
collecting or attempting to collect such debts.
15 U.S.C. § 1692a(6).
A “debt collector” does not include
any person collecting or attempting to collect any debt
owed or due or asserted to be owed or due another to the
extent such activity (i) is incidental to a bona fide
fiduciary obligation or a bona fide escrow arrangement;
(ii) concerns a debt which was originated by such person;
(iii) concerns a debt which was not in default at the
time it was obtained by such person; or (iv) concerns a
debt obtained by such person as a secured party in a
commercial credit transaction involving the creditor.
15 U.S.C. § 1692a(6)(F).
Defendant argues that a mortgage holder
or servicer is not a debt collector.
At this stage of the proceedings, the Court cannot determine
if
Wells
Fargo
is
excluded
from
-11-
the
definition
of
a
debt
collector.6
The Eleventh Circuit has not addressed the issue.
Acosta v. Campbell, 309 F. App’x 315, 320 (11th Cir. 2009)(finding
it unnecessary to decide the issue).
Therefore, the motion to
dismiss will be denied.
D.
Fraud
In alleging fraud, plaintiff must show that Wells Fargo (1)
knowingly made a false statement of material fact or concealed a
material fact; (2) intended to induce plaintiff to act on the
statement; (3) that plaintiff relied on the statement; and (4) that
plaintiff suffered damages as a result of the reliance. Palm Beach
Roamer, Inc. v. McClure, 727 So. 2d 1005, 1007 (Fla. 5th DCA 1999).
Federal Rule of Civil Procedure 9(b) requires fraud allegations to
be plead “with particularity.”
complaint
plaintiffs
subject
retain
to
the
Rule
dual
Fed. R. Civ. P. 9(b).
9(b)’s
burden
particularity
of
providing
“In a
requirement,
sufficient
particularity as to the fraud while maintaining a sense of brevity
and clarity in the drafting of the claim, in accord with Rule 8.”
Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1278 (11th
Cir. 2006). “Particularity means that a plaintiff must plead facts
6
The Court notes that Wells Fargo is represented by the
Florida Default Law Group, P.L., who sent plaintiff a letter with
a Notice stating “Florida Default Law Group, P.L. is a debt
collector.
This Firm is attempting to collect a debt, and
information obtained may be used for the purpose.” (Doc. #19-1, p.
6.) See also Heintz v. Jenkins, 514 U.S. 291, 298 (1995)(attorneys
or law firms who regularly engage in consumer-debt-collection
activity falls under the FDCPA).
-12-
as to time, place and substance of the defendant’s alleged fraud,
specifically the details of the defendant[’s] allegedly fraudulent
acts, when they occurred, and who engaged in them.”
ex
rel.
Atkins
v.
McInteer,
470
F.3d
1350,
1357
2006)(citations and internal quotations omitted).
v.
Cascade
Int’l,
Inc.,
256
F.3d
1194,
United States
(11th
Cir.
See also Ziemba
1202
(11th
Cir.
2001)(citation omitted); Garfield v. NDC Health Corp., 466 F.3d
1255, 1262 (11th Cir. 2006).
where, and how:
“This means the who, what, when[,]
the first paragraph of any newspaper story.”
Garfield, 466 F.3d at 1262 (citations omitted).
“Failure to
satisfy Rule 9(b) is a ground for dismissal of a complaint.”
Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir. 2005),
cert. denied, 127 S. Ct. 42 (2006).
Plaintiff alleges that Wells Fargo intentionally provided
Bowen information that it knew was not true, and/or that it
withheld material information, so that Bowen would not resist the
foreclosure.
Bowen reasonably relied on the misstatement, and but
for the misstatement would not have taken the same action. Bowen’s
reliance on the factual misstatement caused damages as a result of
the fraud.
(Doc. #5, ¶¶
42-47.)
While
Count
II
does not
specifically incorporate any of the factual allegations of the
“Facts and Background” section, pleadings must be construed “so as
to do justice,” Fed. R. Civ. P. 8(e).
So construed, it is apparent
that the Facts and Background” section applies to all counts.
-13-
So
construed, Count II sufficiently pleads fraud with the requisite
specificity.
E.
The motion to dismiss will be denied.
FDUTPA
“A consumer claim for damages under FDUTPA has three elements:
(1) a deceptive act or unfair practice; (2) causation; and (3)
actual damages.”
City First Mortg. Corp. v. Barton, 988 So. 2d 82,
86 (Fla. 4th DCA 2008)(internal citations and quotation omitted).
See also KC Leisure, Inc. v. Haber, 972 S. 2d 1069, 1073-74 (Fla.
5th DCA 2008).
exempted
from
Defendant argues that national banks are expressly
FDUTPA.
Indeed,
Florida
Statute
Section
501.212(4)(c) excludes any person or activity regulated under laws
administered by banks and savings and loan associations regulated
by federal agencies.
Wells Fargo states that it is a national
bank, however the status of Wells Fargo as an FDIC insured bank
cannot be determined by a review of the allegations in the First
Amended Complaint alone.
Fla. Office of the AG, Dep’t of Legal
Affairs v. Commerce Commercial Leasing, LLC, 946 So. 2d 1253, 1257
(Fla. 1st DCA 2007).
Therefore, the motion to dismiss will be
denied.
F.
Breach of Contract
In Count IV, plaintiff alleges that Wells Fargo made an offer
to modify the loan, conditioned upon Bowen being at least 90 days
in arrears, and that he accepted the offer, stopped payments, and
provided all requested financial information.
-14-
Plaintiff further
alleges
that
Wells
Fargo
gave
consideration
by
promising
to
forebear the legal right to foreclose on the property, and in
return, plaintiff followed the instructions of Wells Fargo not to
protect his legal rights in the foreclosure action.
alleges
that
he
relied
upon
Wells
Fargo’s
Plaintiff
promises
to
his
detriment, he has no adequate remedy at law, and that Wells Fargo
was unjustly enriched by the breach of the “quasi contract”. (Doc.
#5, ¶¶ 51-56.)
Defendant argues that plaintiff’s claim fails
because there is no written agreement, and Florida Statute Section
687.0304(2) prohibits a debtor from maintaining an action on a
credit agreement unless it is in writing. Defendant further argues
that failing to defend is not sufficient consideration, and that
the agreement would violate the statute of frauds.
“The elements of a cause of action for a quasi contract are
that: (1) the plaintiff has conferred a benefit on the defendant;
(2) the defendant has knowledge of the benefit; (3) the defendant
has accepted or retained the benefit conferred[;] and (4) the
circumstances
are
such
that
it
would
be
inequitable
for
the
defendant to retain the benefit without paying fair value for it.”
Am. Safety Ins. Serv., Inc. v. Griggs, 959 So. 2d 322, 331 (Fla.
5th DCA 2007)(citations omitted).
Plaintiff may recover where
defendant received something of value or benefitted from the
service supplied, but plaintiff must show he “directly conferred a
benefit” on defendant. Id. (citations omitted). Forebearance from
-15-
pursuing a legal remedy constitutes valid consideration.
Citibank
Int’l v. Mercogliano, 574 So. 2d 1190, 1191 (Fla. 3d DCA 1991).
A
creditor’s forebearance to sue cannot be consideration, however, if
the creditor gains nothing and suffers a detriment by such a
forebearance.
S. Miami Hosp. Foundation v. Hernandez, 455 So. 2d
1103, 1104 (Fla. 3d DCA 1984).
“Florida’s Banking Statute of Frauds,” Florida Statute Section
687.0304, states in relevant part:
(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.
(3) Actions not considered agreements.-(a) The following actions do not give rise to a claim
that a new credit agreement is created, unless the
agreement satisfies the requirements of subsection (2):
1. The rendering of financial advice by a creditor to a
debtor;
2. The consultation by a creditor with a debtor; or
3. The agreement by a creditor to take certain actions,
such as entering into a new credit agreement, forbearing
from exercising remedies under prior credit agreements,
or extending installments due under prior credit
agreements.
Fla. Stat. § 687.0304(2), (3).
Thus, “Section 687.0304, Florida
Statutes (2007), requires that a borrower may not take legal action
on an agreement to lend or forbear repayment of money, goods, or
things in action, to otherwise extend credit, or to make any other
financial
accommodation
unless
the
-16-
agreement
is
in
writing,
expresses
consideration,
sets
forth
the
relevant
terms
conditions, and is signed by the creditor and the debtor.”
and
Coral
Reef Drive Land Dev., LLC v. Duke Realty Ltd., 45 So. 3d 897, 903
(Fla. 3d DCA 2010)(internal quotations omitted).
is alleged in this case.
No such writing
Additionally, plaintiff is seeking
monetary damages, not equitable relief, based on a breach of the
oral promise, and such a claim is generally barred by the statute
of frauds.
2009).
Ala v. Chesser, 5 So. 3d 715, 719-20 (Fla. 1st DCA
The motion to dismiss on this basis will be granted.
Accordingly, it is now
ORDERED AND ADJUDGED:
Defendant’s
Complaint
DENIED.
Motion
to
Dismiss
Plaintiffs’
First
Amended
(Doc. #19) is GRANTED as to Count IV, and is otherwise
The requests for rescission and title to the Property in
the Wherefore clauses of Counts I and II are stricken.
DONE AND ORDERED at Fort Myers, Florida, this
August, 2011.
Copies:
Counsel of record
-17-
17th
day of
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