THIRTEENTH CLAIM FOR RELIEF FDUPTA
- Plaintiffs incorporate by reforence paragraphs 1 through 403 as though set forth at length
- The Conspirators have contractual duties and duties related to covenants contained in the governing documents and the covenant of good faith and fair dealing implicit in every contractual relationship to lot owners and POA members as manifested in Florida Statutes, 720.303(1 ), which duties include the obligation to act in the lot owners’ and members’ best interest, to tell them the truth about all material matters, to disclose any material fact, and to obey all lawful obligations.
- The Conspirators owed Plaintiffs a duty to make true representations of material fact and to disclose material facts only known by its agents, employees and officers.
- DCS contractually assumed liability for Gino’s liabilities and assumed a duty of truthfulness and disclosure when it purchased Gino’s rights to Bella Collina.
- The Conspirators breached their duties by knowingly sending false billing statements related to illegal special assessments, knowingly agreeing when promised in various forms as herein described that they would not turn over the community to lot owners 90 days after August 29, 2005, knowingly agreeing to bill lot owners for sports club initiation foes and dues knowing that such bills were illegal and unenforceable, agreeing to file knowingly false and unenforceable amendments to articles of incorporation and to CC&Rs, agreeing to falsely state that they did not have the duty to turn over the community, or knowingly agreeing to state that they had the authority to unilaterally amend governing documents or agreeing to control the POA without notice to lot owners or elections, agreeing to restrict lot owner’s choice of builder and agreeing to take other actions described with particularity herein which increased costs and lessened lot values knowing that such actions conflicted with material representations made in promotional materials, the CC&Rs and failing to disclose additional material facts as described with particularity herein such as actual costs to run the golf club or community, all of which constitute unfair methods of competition and unfair and deceptive practices under Florida Statutes, § 501.204.
- The Conspirators’ breaches of duty and illegal agreement to do so caused Plaintiffs to suffer the unnecessary payment of a special assessment for a non-existent sports club, a deposit for possible membership, and diminution in the value of their lots as indicated in schedule B.
FOURTEENTH CLAIM FOR RELIEF CONSUMER COLLECTION PRACTICES ACT, FLA. STAT. §§559.55-559.785 AGAINST THE GOLF CLUB, THE RYANS, THE RYAN LAW FIRM. AEGIS AND BURMAN
- Defendants DCS, the Golf Club, the Ryans, Aegis and Burman, at all relevant times, are debt collectors.
- Plaintiffs incorporate by reference paragraphs 1 through 408 as though set forth at length herein.
- Plaintiffs are consumers as defined by Florida Statutes §559.55(2).
- Defendants DCS, the Golf Club, the Ryans, Aegis, Burman and their officers and directors violated the Consumer Collection Practices Act by knowingly sending false billing statements related to illegal special assessments, billing lot owners for sports club initiation fees and dues knowing that such bills were illegal and unenforceable, and engaging in abusive, deceptive and unfair practices to collect an alleged debt.
- These violations of law caused Plaintiffs to sutler the inability to sell its property at fair market value, the unnecessary payment of a special assessment for a non-existent sports club, a deposit for possible membership, and diminution in the value of their lots.
FIFTEENTH CLAIM FOR RELIEF ACT, FLA. STAT. §468.4334 AGAINST AEGIS AND BURMAN
- Plaintiffs incorporate by reference paragraphs 1 through 408 as though set forth at length herein.
- 468.4334, Florida Statutes states: “Professional practice standards; liability.-( 1) A community association manager or a community association management firm is deemed to act as agent on behalf of a community association as principal within the scope of authority authorized by a written contract or under this chapter. A community association manager and a community association management firm shall discharge duties performed on behalf of the association as authorized by this chapter loyally, skillfully, and diligently; dealing honestly and fairly; in good faith; with care and full disclosure to the community association; accounting for all funds; and not charging unreasonable or excessive fees.
- Burman and Aegis were grossly negligent.
- Burman and Aegis acted negligently, recklessly, in bad faith, and with malicious purpose, and in a manner exhibiting wanton and willful disregard of human rights, safoty, or property.
- These violations of law caused Plaintiffs to suffer the inability to sell its property at fair market value, the unnecessary payment of a special assessment for a non-existent sports club, a deposit for possible membership, and diminution in the value of their lots.
SIXTEENTH CLAIM FOR RELIEF CONSTRUCTIVE TRUST AGAINST ALL DEFENDANTS
- Plaintiffs incorporate paragraphs l through 408 as though set forth fully herein.
- Defendants’ fraud, false representations about the DCS’ authority to control the POA and the validity of the amended CC&Rs, the false billing practices, violations of antitrust statutes, breaches of fiduciary duties and other breaches of duties and confidence caused the Defendants to be unjustly enriched at the expense of all former lot owners since 2012.
- Lot owners since 2012 and all current lot owners, especially those improperly sued by the POA, paid excess or unwarranted special assessments, club dues, attorney fees, annual assessments which should be disgorged by DCS and the DCS related entities, Ryan and the Ryan Law Group, and Aegis and David Burman.
- The unjust enrichment included the acquisition of approximately 600 lots from the vulnerable and deceived former lot owners.
- Equity requires that these lots be placed in constmctive trust and returned to the former lot owners from whom they were taken.
SEVENTEENTH CLAIM- REQUEST FOR TEMPORARY RESTRIANING ORDER AND TEMPORARY INJUNCTION
- Plaintiffs incorporate by reference paragraphs 1 through 408 as though set forth fully herein.
- The Plaintiffs are suffering irreparable harm as described in Judge Singletary’s Order dated June 24, 2016.
- The POA violated numerous laws as more particularly described herein, and failed to turn itself and the assets of the POA which it possesses over to a lawfully elected board of homeowners as required by the Governing Documents, The Homeowners Association Act and Court Order.
- Further, the POA is a mere instrumentality ofDCS and acts against the best interests of the lot owners in violation of the original CC&Rs, its articles of incorporation and the law as set forth herein with particularity.
- DCS intends to build a hotel, Bella Collina Towers on or adjacent to Bella Collina in violation of the Governing Documents and only authorized by the unauthorized and illegal amendments filed by the DCS controlled POA as described herein.
- Unless this Honorable Court immediately enjoins the Defendant, the Plaintiff will suffer immediate and irreparable injury, loss and damage.
- Plaintiff has no adequate remedy at law.
- The harm, if any, that would result to Defendant if this injunction is granted would be relatively insignificant compared to the immediate and irreparable injury, loss and damage that Plaintiff would suffer in the event that this injunction is not granted.
- On final trial on the merits, the Court should enter a permanent injunction consistent with the temporary injunction.
WHEREFORE, CSBS respectfully requests that:
- A Temporary Restraining Order issue enjoining Greene, Lebreux, Clarke, from acting in any capacity as board members of the POA, the Ryans or the Ryan law firm from acting in any capacity as the POA’s lawyer or in taking any legal action against any Bella Collina lot owner for any reason or on behalf of any party, DCS and Bella Collina Towers LLC from taking any action to construct a hotel on or near the Community, DCS and the DCS entities from transferring title to or engaging in any transaction related to any property acquired from any Bella Collina lot owner.
- A Temporary Injunction issue, after notice and hearing, enjoining the POA from seeking to enforce the special assessment for club dues, any amendments to the CC&Rs or POA articles of incorporation or continuing operations until an election can be held at which a quorum of non-developer lot owners elect a board, which, in turn, can elect officers to run the POA, prohibiting DCS, its officers, agents, servants, employees, successors and assigns, DCS and its attorneys from directly or indirectly interfering with lot owners administering the POA as required by law, prohibiting the construction of Bella Collina Towers, and returning all land originally dedicated to the community for a sports center, an equine center and recreation facilities to the community, and forbidding the POA from decreasing the minimum lot sizes on the estate-island side of the community from one acre to a quarter acre and prohibiting the sale by the defendants of any lots acquired through the methods of coercion described herein to until a hearing can be held on the creation of a constructive trust for the victims of this coercion.
- After trial on the merits, the Court permanently enjoin the POA, Plaintifl: Cross Claim Defendant DCS, its officers, agents, servants, employees, successors and assigns, and its attorneys from directly or indirectly interfering with lot owners administering the POA as required by law or from seeking to enforce the special assessment for club dues, any amendments to the CC&Rs or POA articles of incorporation and discontinue all interference with the administration of the POA by a duly elected board.
- The requirement the Defendant-Counter Claim-Plaintiff post a bond be waived.
- The court grant such other and further relief, in law or in equity, to which Plaintiff may be justly entitled, including the award of counsel fees to the Defendant-Counter Claim Plaintiffs.