Regions Bank v. The 62' Ocean Sport Fish Hull I.D. No. XY001462J203 et al

Filing 54

ORDER denying 26 Motion to Dismiss. Signed by Magistrate Judge John J. O'Sullivan on 1/6/2014. (mkr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 13-20966-CIV-O’SULLIVAN
[CONSENT]
REGIONS BANK,
Plaintiff,
v.
The 62' OCEAN SPORT FISH, Hull I.D.
No. XY0011462J203, its engines, tackle,
rigging, apparel and appurtenances, etc.,
in rem, and CLASS ACTION OF SOUTH
FLORIDA and JOHN H. RUIZ, in personam,
Defendants.
________________________________/
ORDER
THIS MATTER is before the Court on the Defendants’ Motion to Dismiss (DE#
26, 4/30/13).
BACKGROUND
On March 18, 2013, the plaintiff filed a one-count verified complaint to foreclose
on a first preferred ship mortgage pursuant to 46, United States Code, Section 31301,
et seq. See Verified Complaint (DE# 1, 3/18/13). The defendants moved to dismiss the
verified complaint. See Defendants’ Motion to Dismiss (DE# 26, 4/30/13). On May 9,
2013, the plaintiff filed its response in opposition. See Response in Opposition to
Defendants’ Motion to Dismiss (DE# 27, 5/9/13). The defendants filed their reply on
May 21, 2013. See Defendants’ Reply to Plaintiff’s Response to Motion to Dismiss
(DE# 31, 5/21/13). This matter is ripe for consideration.

STANDARD OF REVIEW
The defendants move to dismiss the Verified Complaint (DE# 1, 3/18/13) for
failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. See Defendants’ Reply to Plaintiff’s Response to
Motion to Dismiss (DE# 31 at 1, 5/21/13) (stating for the first time that their motion to
dismiss is based on Rule 12(b)(6)). In considering a motion to dismiss brought under
Fed. R. Civ. P. 12(b)(6), the Court’s analysis is generally limited to the four corners of
the complaint and the attached exhibits. See Grossman v. Nationsbank, 225 F.3d 1228,
1231 (11th Cir. 2000). The Court must accept the non-moving party’s well-plead facts
as true and construe the complaint in the light most favorable to that party. Caravello v.
Am. Airlines, Inc., 315 F. Supp. 2d 1346, 1348 (S.D. Fla. 2004) (citing United States v.
Pemco Aeroplex, Inc., 195 F.3d 1234, 1236 (11th Cir. 1999) (en banc); St. Joseph’s
Hosp., Inc. v. Hosp. Corp. of Am., 795 F.2d 948, 953 (11th Cir. 1986)).
To survive a motion to dismiss, the complaint must contain factual allegations
which are “enough to raise a right to relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). The issue to be decided is not whether the plaintiff will ultimately prevail, but
“whether the [plaintiff] is entitled to offer evidence to support the claims.” Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232,
236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984)).

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ANALYSIS
The defendants move to dismiss the verified complaint stating that “the [p]laintiff
accepted payments and failed to tender the proper notice of default and notice of right
to cure as provided for under the Notice and has therefore waived its right to
foreclosure and is estopped from proceeding with this action.” See Defendants’ Motion
to Dismiss (DE# 26 at 2, 4/30/13). The plaintiff maintains that it “was entitled to
accelerate the entire indebetedness without prior notice to [the d]efendants” and that
“the Note and Mortage contain anti-waiver clauses.” Response in Opposition to
Defendants’ Motion to Dismiss (DE# 27 at 2, 5/9/13).
Equitable estoppel is an affirmative defense. Fed. R. Civ. P. 8(c)(1). “Typically, a
defendant does not have an opportunity to prove affirmative defenses in a motion to
dismiss, as affirmative defenses do not constitute elements of a plaintiff’s claim . . . .
However, ‘dismissal under rule 12(b)(6) may be appropriate based on a successful
affirmative defense[ ][if] that defense . . . appear[s] on the face of the complaint.’”
Murphy v. DCI Biologicals Orlando, LLC, No. 6:12-cv-1459-Orl-36KRS, 2013 WL
6865772, at *5 (M.D. Fla. Dec. 31, 2013) (citations omitted) (alterations in original)
(emphasis added). The elements of equitable estoppel, as noted in the defendants’
motion are: “that (1) defendant or an agent made a representation with regard to a
material fact; (2) movant relied on the representation; and (3) changed his position to
his detriment in reliance on the representation.” Defendants’ Motion to Dismiss (DE# 26
at 4, 4/30/13) (citing Greenhut Constr. Co. v. Henry A. Knott, Inc., 247 So. 2d 517 (Fla.
1st DCA 1971)). The facts necessary to establish these elements are not present on

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the face of the Verified Complaint (DE# 1, 3/18/13). Accordingly, the Verified Complaint
(DE# 1, 3/18/13) will not be dismissed based on the affirmative defense of equitable
estoppel.
The defendants also argue that “the [plaintiff] relinquished and therefore waived
its right to accelerate and foreclose when it accepted the payment that brought the
account current and then failed to give notice of a right to cure for any further default it
claimed [d]efendants had committed.” Defendants’ Motion to Dismiss (DE# 26,
4/30/13). Like equitable estoppel, waiver is also an affirmative defense. Fed. R. Civ. P.
8(c)(1). The elements of an affirmative defense of waiver, as noted in the instant motion
are: (1) the existence at the time of the waiver of a right, privilege, advantage, or
benefits that may be waived; (2) the actual or constructive knowledge thereof; and (3)
an intention to relinquish that right, privilege, advantage or benefit.” See Defendants’
Motion to Dismiss (DE# 26 at 4, 4/30/13) (citing Destin Sav. Bank v. Summerhouse of
FWB, Inc., 579 So.2d 232 (Fla. 1st DCA 1991)). The Court will not dismiss the Verified
Complaint (DE# 1, 3/18/13) based on the affirmative defense of waiver for the reasons
discussed above.
In their reply, the defendants raise for the first time the argument that the
contract between the parties was a contract of adhesion. See Defendants’ Reply to
Plaintiff’s Response to Motion to Dismiss (DE# 31 at 2, 5/21/13). Leaving aside the
long-established rule that a movant may not raise an issue for the first time in a reply
brief, this argument also fails because the facts necessary to establish procedural
and/or substantive unconscionabilty are not found in the plaintiff’s 15-paragraph
Verified Complaint (DE# 1, 3/18/13).
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CONCLUSION
Based on the foregoing, it is
ORDERED AND ADJUDGED that the Defendants’ Motion to Dismiss (DE# 26,
4/30/13) is DENIED. The defendants shall respond to the Verified Complaint (DE# 1,
3/18/13) on or before Tuesday, January 21, 2014.
DONE AND ORDERED in Chambers at Miami, Florida this 6th day of January,
2014.

JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies to:
All counsel of record

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