Stermer v. Credit Exchange Corporation

Filing 24

Final Order of Dismissal as to Count III. Signed by Judge William J. Zloch on 5/1/2009. (bc)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 09-60223-CIV-ZLOCH DANIEL J. STERMER, as Receiver for Laura Hess & Associates, P.A., Hess Kennedy Consumer Law Center, Legal Debt Center, Campos Chartered Law Firm, et al., Plaintiff, vs. THE CREDIT EXCHANGE CORPORATION, Defendant. / THIS MATTER is before the Court upon Defendant Credit Exchange Corporation's Motion To Dismiss (DE 3). The Court has carefully FINAL ORDER OF DISMISSAL AS TO COUNT III

reviewed said Motion and the entire court file and is otherwise fully advised in the premises. This action was filed by Plaintiff Daniel J. Stermer, who was appointed by a Florida state court as Receiver for Laura Hess & Associates, P.A. and several related companies (hereinafter

"Receivership Entities").

The Receivership entities were engaged

in a fraudulent scheme that became the target of the Attorney General of the State of Florida, who moved to have Plaintiff appointed as Receiver. The appointment (DE 10, Ex. 1) was made

pursuant to Florida Statutes § 501.207(3) and empowers Plaintiff to marshal, preserve, protect, maintain, manage, and safeguard the assets of the Receivership Entities with the intended end that the consumer victims of the Receivership Entities' schemes be made

whole.

To this end, Plaintiff has instituted the instant action

seeking a judgment from the Court declaring that the agreement between the Receivership Entities was unlawful and recovering funds paid to Defendant under the same. this action. In Count III, Plaintiff seeks to recover the funds paid to Defendant based on a theory of unjust enrichment. of action sounding in equity. This is a cause Defendant now moves to dismiss

Ala v. Chesser, ___ So. 2d ___, 2009

WL 367769 *3 (Fla. Dist. Ct. App. Feb. 17, 2009) ("Remedying unjust enrichment is affording equitable relief."). Defendant argues that Plaintiff is barred from recovering based on the doctrine of in pari delicto, "an affirmative and equitable defense [that]

prohibits plaintiffs from recovering damages resulting from their own wrongdoing." O'Halloran v. PricewaterhouseCoopers LLP, 969 So. 2d 1039, 1044 (Fla. Dist. Ct. App. 2007) (quotation omitted).1 Court, sitting in equity as to Count III, agrees. The

When a plaintiff

and defendant "are in pari delicto the law will leave them where it finds them; relief will be refused in the courts because of public interest." Patterson v. Law Office of Lauri J. Goldstein, P.A.,

980 So. 2d 1234, 1237 (Fla. Dist. Ct. App. 2008) (quotations omitted). Complaint. Therefore, the Court shall dismiss Count III of the

Plaintiff, as Receiver, stands in the shoes of the Receivership Entities. Freeman v. Dean Witter Reynolds, Inc., 865 So. 2d 543, 550 (Fla. Dist. Ct. App. 2003). 2

1

With respect to Counts I and II, the Court finds that the remaining legal issues raised by Defendant's Motion To Dismiss (DE 3) are more properly addressed in a Motion For Summary Judgment, when discovery may present the Court with a full record upon which it may address and decide said issues. Accordingly, after due consideration, it is ORDERED AND ADJUDGED that Defendant Credit Exchange

Corporation's Motion To Dismiss (DE 3) be and the same is hereby GRANTED in part and DENIED in part as follows: 1. To the extent that Defendant Credit Exchange Corporation's Motion To Dismiss (DE 3) seeks an order dismissing Count III of the Complaint, it be and the same is hereby GRANTED; 2. Count III of the Complaint (DE 1, Ex. A) be and the same is hereby DISMISSED; 3. In all other respects, Defendant Credit Exchange

Corporation's Motion To Dismiss (DE 3) be and the same is hereby DENIED. DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 1st day of May, 2009.

WILLIAM J. ZLOCH United States District Judge Copies furnished: All Counsel of Record 3