Opposition Brief — Cohen v. World Omni Financial Corp.

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On September 29, 2004, Cohen filed a Petition for

Writ of Certiorari in the Florida Fourth District Court of

Appeal arguing that the Circuit Court, sitting in its

appellate capacity, departed from the essential require-

ments of law in failing to apply settled precedents and in

affirming the County Court’s decision, which Cohen

contended was based upon an inapplicable statute (i.e.,

Fla. Stat. § 212.06(8)(a)). [App. 138-160]. Once again,

Cohen argued not that the operative statute was unconsti-

tutional, but that the courts’ construction of the statute

was erroneous.

On February 15, 2005, the Fourth District Court of

Appeal denied Cohen's Petition for Writ of Certiorari

without opinion. {[App. 151-162]. Cohen then filed a Motion

for Rehearing seeking yet a third review of the decisions

below. Cohen also filed a Request Certifying that a Federal

Question had been raised and decided for the purpose of

establishing entitlement to certiorari review by the United

States Supreme Court. (App. 163-165]. The Fourth District

Court of Appeals denied both motions. |App. 166-167].

Cohen has now petitioned this Court for the issuance of a

writ of certiorari.

REASONS FOR DENYING THE PETITION

This Court should deny the Petition for Writ of Certio-

rari for the following reasons: (1) the issue presented by

Petitioner was not properly raised and decided by the

courts below; (2) the decisions below rested on adequate

and independent state grounds; and (3) there are no issues

worthy of this Court’s review. As to the last point, there is

no division of authority among the appellate courts, nor is

there any other justification for review. Furthermore, the

courts below clearly followed established precedent and

reached the correct result.

A. THE ISSUE PRESENTED IN THIS PETITION

WAS NOT PROPERLY RAISED OR DECIDED

BY THE COURTS BELOW

It is axiomatic that with “very rare exceptions”, the

United States Supreme Court will not review a state court

decision unless a federal question has been raised and

decided by the state court. 28 U.S.C. § 1257. See Adams v.

Robertson, 520 U.S. 83, 86 (1997). Where it is unclear

whether a state court has ruled on a federal issue, the

Supreme Court will assume that the federal question was

not decided and will deny the writ of certiorari unless the

petitioner can demonstrate that the federal question was

indeed presented to the state court and ruled upon. See

Board of Dir. of Rotary International v. Rotary Club of

Duarte, 481 U.S. 537, 549-550 (1987). In other words, the

Supreme Court will attribute the state court’s decision to

an interpretation of state law, unless another reasonable

basis is apparent. Here, the record reveals that the deci-

sions below were based on independent and adequate state

grounds, and not on federal law.

The question presented by Cohen in this Petition is

whether Florida’s refusal to grant a tax credit for sales tax

previously paid on the entire stream of lease payments to

the State of New York violates the dormant Commerce

Clause. Cohen argues that Fla. Stat. § 212.06(7) and (8)(a)

must be construed in a way which would save the statute’s

constitutionality. To do so, Cohen argues that he must be

provided with a credit for sale taxes previously paid to

New York on the leased vehicle. See Cohen’s Petition for

Writ of Certiorari, p. 22. In framing the issue as such, it is

unclear whether Coher. now contends that the operative

statute is itself unconstitutional or whether he simply

contends that the cour:s below erred in interpreting the

statute because their rulings necessarily subject Cohen to

cumulative and discriminatory sales and use tax in viola-

tion the Commerce Clause. Irrespective, Cohen’s Petition

either presents a question that was not properly raised

and considered below, or one which is not reviewable by

this Court.

In Cohen's Answer and Affirmative Defenses |App. 26-

36], he alleged, among other things, that World Omni

breached the Lease by charging Florida Sales and Use Tax

or, in the alternative, by failing to provide Cohen with a

refund for the portion of New York sales tax already paid.

For purposes of this Petition, this allegation does not

challenge the constitutionality of the statute.’ [App. 2].

In response to Worid Omni’s Motion for Final Sum-

mary Judgment on Cohen’s Counterclaim [App. 45-63],

* Had Cohen wished to challenge the constitutionality of the operative

statute, as a matter of law, he should have filed an action aguinst the

Department of Revenue or filed a petition under the applicable provisions

of Chapter 120, Florida Statutes. See Department of Revenue v. Kuhnilein,

646 So. 2d 717 (Fla. 1994) (Florida residents brought an action against the

Department of Revenue challenging the constitutionality of impact fees

which were imposed on cars purchased or titled in other states but

subsequently registered in-state); Sharper Image Corp. v. Department of

Revenue of State, 704 So. 2d 657 (Fla. lst DCA 1997) (retailer filed suit

against Department of Revenue challenging the assessment of use tax

pursuant to Fla. Stat. § 212.06 on its distribution of catalogs in Florida), see

also, Barringer v. Griffes, 1 F.3d 1331 (2d Cir. 1993) (plaintiff filed suit

against the Vermont Motor Vehicle Commissioner on the ground that

Vermont's failure to grant a tax credit violated the commerce clause).

Notably, the Supreme Court denied plaintiffs petition for writ of certiorari.

Griffes v. Barringer, 510 U.S. 1072 (1994).

Cohen did not challenge the constitutionality of the

operative statute, but instead argued that the exemption

contained in Fla. Stat. § 212.06(8)a) was inapplicable to

the facts of this case and that the statutory construction

proposed by World Omni would subject him to cumulative

and discriminatory sales and use tax in violation of the

Commerce Clause. Curiously, Cohen went on to advise the

lower court that it “need not reach the statutory and consti-

tutional issues in order to determine the case.” [App. 59].

Indeed, the lower court did not reach the federal question

when it granted World Omni’s Motion for Summary Judg-

ment on Cohen’s Counterclaim. There was no need to

consider the issue as: (1) there were independent bases for

summary judgment based on Cohen’s failure to repair the

Vehicle and make the final two monthly lease payments;

and (2) Fla. Stat. § 212.06(8)(a) clearly “required World

Omni to collect the sales and use tax on the leased vehicle

when Cohen moved to Florida ... [Accordingly, Cohen was

not] entitled to a credit for the payment of the New York

sales tax...” [App. 65].

On appeal, Cohen argued that the lower court erred in

interpreting the statute. Specifically, Cohen argued that

the lower court’s finding that he was not entitled to a

credit against the Florida Sales and Use Tax was necessar-

ily erroneous because it resulted in a statutory interpreta-

tion which violated the Commerce Clause. Cohen concedes

that the Circuit Court never considered the federal ques-

tion presented in this Petition when it affirmed the lower

court’s decision.

On September 29, 2004, Cohen filed a Petition for

Writ of Certiorari to the Fourth District Court of Appeal.

[App. 138-160]. Once again, Cohen argued that the County

and Circuit Courts’ construction of the statute was errone-

ous (i.e., they misapplied the law and failed to follow

binding p:~cedents), which resulted in the discriminatory

treatment « out-of-state leases in violation of the Com-

merce Clause. [App. 147-148, 151]. A court’s erroneous

application of a statute undeniably does not violate the

Constitution. See Hohn v. U.S., 524 U.S. 236 (1998).

Accordingly, the Fourth District Court of Appeal denied

Cohen’s Petition for Writ of Certiorari. [App. 161-162].

While no opinion was published, it is clear that the Fourth

District never considered the federal question presented

herein. Furthermore, the Fourth District denied Cohen’s

motion for a certificate that a federal question was raised

and decided. {App. 163-165, 166-167].

In order to grant certiorari review, the constitutional-

ity of a state statute must be presented and decided by the

state court; it is legally insufficient to merely attack the

tax levied or to show that the imposition of the tax was

considered. See Wilson v. Cook, 327 U.S. 474 (1946). “The

purpose of this requirement is to make certain that no

judgment of a state court will be reviewed on appeal by

this Court unless the highest court of the state has first

been apprised that the state statute is being assailed as

invalid on federal grounds.” Id. at 479. “This jurisdictional

requirement is satisfied only if the record shows that the

question of the validity under federal law of the state

statute, as construed and applied, has either been pre-

sented for decision to the highest court of the state or has

in fact been decided by it, and that its decision was neces-

sary to the judgment.” /d. (citations omitted). It cannot

reasonably be disputed that the record in this case fails to

reveal that the federal question was presented and decided

upon by any of the courts below.

* Even if the federal question had been properly raised and

decided, Cohen's Petition seeks mere error correction. It is well

(Continued on following page)

World Omni respectfully submits that there is nothing

about this case that would justify a departure from this

Court’s practice of requiring that a federal issue be raised

and ruled upon before reviewing a state court judgment.

To this point, in “cases coming here from state courts in

which a state statute is assailed as unconstitutional, there

are reasons of peculiar force which should lead us to

refrain from deciding questions not presented or decided

in the highest court of the state whose judicial action we

are called upon to review ... Apart from the reluctance

with which every court should proceed to set aside legisla-

tion as unconstitutional on grounds not properly pre-

sented, due regard for the appropriate relationship of this

Court to state courts requires us to decline to consider and

decide questions affecting the validity of state statutes not

urged or considered there.” McGoldrick v. Compagnie

Generale, 309 U.S. 430, 435-436 (1940). See also, Miami-

Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 195,

199 (Fla. 2003) (“a petition seeking certiorari review is not

the proper procedural vehicle to challenge the constitu-

tionality of a statute. ...” Such challenge must be deter-

mined in original proceedings). It is for these reasons that

this Court has consistently refused to consider any

grounds of attack not raised or decided in the state court.

See Howell v. Mississippi, 125 S.Ct. 856 (2005) (claim not

presented in the lower court may not be raised for the first

time in the Supreme Court). Based on the foregoing, World

established that certiorari is not the appropriate mechanism for

correcting perceived errors by the lower court. See Rogers v. Missourn

PR. Co., 352 U.S. 500, 531 (1957) (Frankfurter, J. dissenting); Ivey v.

Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000); see also, Supreme

Court Rule 10 (“A petition for a writ of certiorari is rarely granted when

the asserted error consists of erroneous factual findings or the misap-

plication of a properly stated rule of law.”).

Omni submits that the Petition for Writ of Certiorari

should be denied.

B. THE DECISIONS BELOW WERE DECIDED

ON ADEQUATE AND INDEPENDENT STATE

GROUNDS AND, THEREFORE, ARE NOT SUB-

JECT TO THIS COURT’S REVIEW.

The Supreme Court has long adhered to the principle

that “it will not review judgments of state courts that rest

on adequate and independent state grounds.” Herb v.

Pitcairn, 324 U.S. 117, 125 (1945); see also Coleman v.

Thompson, 501 U.S. 722, 729 (1991) (“in the context of

direct review of a state court judgment, the independent

and adequate state ground doctrine is jurisdictional”). In

other words, the Supreme Court will not review a state

court decision if state grounds are sufficient to sustain the

judgment. See Lynch v. People of New York, 293 U.S. 52

(1934), Lambrix v. Singletary, 520 U.S. 518, 522-523

(1997). “(T]he duty of this Court is to decide actual contro-

versies by a judgment which can be carried into effect, and

not to give opinions upon moot questions or abstract

propositions, or to declare principles or rules of law which

cannot affect the matter in issue in the case before it.”

Local No. 8-6, Oil, Chem. & Atomic Workers Int'l Union v.

Missouri, 361 U.S. 363, 367 (1960) (citations omitted). As

explained by the Court in Pitcairn, “|the Supreme Court's}

only power over state judgments is to correct them to the

extent that they incorrectly adjudge federal rights.” Id.,

324 U.S. at 125-126 (emphasis added). “A decision made

according to the form of the law and the rules prescribed

for rendering it, although it may be erroneous in its

conclusion as applied to the facts, is not an illegal or

irregular act or proceed:ng remedial by certiorari.” Ivey v.

Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000). See also,

Wait v. Alaska, 451 U.S. 259, 265, n.5 (1981) (“certiorari

jurisdiction is designed to serve purposes broader than the

correction of errors in particular cases”).

As discussed above, the federal question raised in this

Petition was not considered by the courts below because it

was not properly raised, and even if it had been properly

raised, there were independent and adequate state

grounds to support the lower court’s decisions, thus mak-

ing consideration of the federal question presented herein

unnecessary. The record confirms that Cohen defaulted

under the Lease based on three independent bases; (1) his

failure to pay the Florida Sales and Use Tax;’ (2) his

failure make the final two (2) monthly payments under

section 12(a) of the Lease. [R. 2817-2821]; and (3) based on

his destruction of the Vehicle and failure to authorize

mechanical and collision repairs as required by sections 12

and 17 of the Lease. [App. 4-19]. Remarkably, up until he

testified at trial, Cohen steadfastly maintained that he had

no obligation to return the Vehicle in working order. Thus,

regardless of whether Cohen defaulted under the Lease

be .ed on his failure to pay the additional Florida Sales and

Use Tax,’ there were at least two other independent and

” Pursuant to Section 26 of the Lease, Cohen had a contractual

obligation to pay “all excise, use, personal property, gross receipts and

other taxes incurred during the term of the Lease ... The taxes you

must pay will be included in the Amount Due when Lease is Signed (see

Paragraph 1) or your Monthly Payment (see Paragraph 3) or separately

billed to you by Lessor. Lessor may change your Monthly Payment for

increases and decreases in taxes. (Emphasis added). |App. 15).

* Even assuming that Cohen's failure to pay the Florida Sales and

Use Tax was the sole ground for default, certiorari review is not

warranted here because this finding did not involve a determination of

(Continued on following page)

adequate state grounds to support the lower court’s

decisions. See Firestone v. Firestone, 263 So. 2d 223, 225

(Fla. 1972) (final judgment may be affirmed on appeal if

the record as a whole discloses any ground upon which the

Order can be supported).

In sum, the Supreme Court should not grant certiorari

to review decisions of a state court where the basis of a

state court’s decision makes consideration of the federal

question unnecessary. In the case at bar, if this Court were

to entertain the question presented herein, it would be

rendering a ruling without any effectual relief as there

were independent and adequate state grounds to support

the decisions below. This is particularly true in light of the

fact that the operative statute has since been amended to

provide a credit where a taxpayer can document the use of

his/her vehicle outside the State of Florida and that a

sales tax is being paid in another state. See Fla. Stat.

§ 212.05(1)(c)2. See also, TAA 00A-060. (Fla. Dept. Rev.

October 26, 2000). Accordingly, the question presented by

Cohen in this Petition will have no impact beyond this

dispute and, therefore, certiorari review should be denied.

C. THE COURTS BELOW CORRECTLY INTER-

PRETED AND APPLIED FLA. STAT. § 212.06.

Even if it were appropriate for this Court to take the

extraordinary step of granting certiorari to review a claim

of error in the application of settled law, simply stated,

Cohen’s claims of error are wrong. Cohen contends that he

had no obligation to pay Florida Sales and Use Tax under

federal law. Accordingly, review of this finding would not decide the

issue raised in this Petition.

Fla. Stat. § 212.06(7) because he was already paying the

sales tax to the State of New York.’ In pertinent part, Fla.

Stat. § 212.06 provides as follows:

(7) The provisions of this chapter do not ap-

ply in respect to the use or consumption of

tangible personal property or services, or

distribution or storage of tangible personal

property for use or consumption in this

state, upon which a like tax equal to or

greater than the amount imposed by this

chapter has been lawfully imposed and

paid in another state, territory of the

United States, or the District of Columbia

... If the amount of tax paid in another

state, territory of the United States, or

the District of Columbia is not equal to or

greater than the amount of tax imposed

by this chapter, then the dealer shall pay

to the department an amount sufficient to

make the tax paid in the other state, ter-

ritory of the United States, or the District

* Curiously, it does not appear that Cohen has ever challenged New

York’s tax scheme, which imposes an up-front sales tax on multi-year

leases of vehicles, but does not permit a refund of sales tax paid even

where the lessor changes his/her residence. See N.Y. Tax Law § 1111(i);

see also In Matter of the Petition of Thomas Gallagher, 2003 WL

22466172 (N.Y. Tax App. Trib., DTA No. 819115, October 23, 2003)

(lessor was not entitled to a credit or refund of sales tax paid at the

inception of the lease when he moved to New Jersey and was also

required to pay New Jersey sales tax for the remaining thirty (30)

months on the lease) [App. 179-184]; Moerdler v. Tax Appeals Tribunal

of State of New York, 298 A.D. 2d 778, 750 N.Y.S.2d 329 (N.Y. A.D. 2002)

(the New York State Tax Appeals Tribunal affirmed the decision of the

Division of Tax Appeals and held that a taxpayer was not entitled to a

refund for sales tax that was paid in full when the lease was terminated

after three months because the vehicle was stolen).

of Columbia and this state equal to the

amount imposed by this chapter.

Use tax will apply and be due on tangible

personal property imported or caused to

be imported into this state for use, con-

sumption, distribution, or storage to be

used or consumed in this state; provided,

however, that, ... it shall be presumed

that tangible personal property used in an-

other state, territory of the United States,

or the District of Columbia for 6 months or

longer before being imported into this state

was not purchased for use in this state. The

rental or lease of tangible personal property

which is used or stored in this state shall be

taxable without regard to its prior use or tax

paid on purchases outside this state. (Em-

phasis added)

Similarly, Fla. Admin. Code R. 12A-1.7(14) provides as

follows:

(a) The rental or lease of an aircraft, boat, mo-

bile home, or motor vehicle, which is used or

stored in this state, shall be taxable without

regard to its prior use or tax paid on the

purchase outside this state.

Without any legal support, Cohen argues that the

courts below should have disregarded Fla. Stat. § 212.06(8Xa)

because he never requested an exemption. Cohen further

argues that § 212.06(8Xa) cannot be read in conjunction

with § 212.06(7) because it would produce an inconsistent

result. Cohen’s construction is illogical and is unsupported

by any legal authority. In fact, Cohen’s construction was

rejected by the Florida Department of Revenue in its Techni-

cal Assistance Advisements (“TAA”). See TAA 2001A-063,

2001 WL 1358013 (Fla. Dept. Rev. Oct. 4, 2001). [App. 168-

178]. Unbeknownst to World Omni or the lower court, on

August 29, 2001, Cohen requested a TAA on this very

issue." In response to Cohen’s Request, the Department of

Revenue held that indeed sections 212.06(7) and (8)(a)

must be read together; the “credits set forth in these

subsections extend to certain transactions, but not to the

rental and lease of tangible personal property which is

used or stored in this state.” Jd. at *5. The Department of

Revenue went on to hold that World Omni correctly

applied Florida sales tax to Cohen’s montnly lease pay-

ments irrespective of the fact that Cohen previously paid

sales tax to New York. Jd."' Likewise, the courts below

correctly held that Cohen had a statutory obligation to pay

Florida Sales and Use Tax.

CONCLUSION

Review of a writ of certiorari is not a right, but a

matter of discretion that will only be granted under

exceptional circumstances. Here, Cohen has offered no

compelling reason for this Court to exercise its discretion-

ary power, there is no conflict between the appellate courts

* As Cohen is a lawyer admitted to the Florida Bar in 1987, his

failure to disclose this TAA may well violate Rule 4-3.3(aX3) of the Rules

Regulating the Florida Bar.

" The Department of Revenue also noted that when the dealer in New

York remitted the sales tax for Cohen at the inception of the lease, it was to

be reimbursed by Cohen over the next thirty-six (36) months. The invoices

from June 1995 to June 1996, however, do not indicate an amount for sales

tax even though a separate column for sales/use tax was present. This

caused the monies paid for reimbursement to lose their identity as sales

tax and, therefore, the entire amount of the lease payment became subject

to Florida Sales and Use Tax. Jd. at *5. [App. 179-184].

presented, and the courts below correctly applied existing

law. For the foregoing reasons, Cohen’s request for a Writ

of Certiorari does not demonstrate the requisite excep-

tional circumstances and should be denied.

RESPONDENT’S REQUEST FOR

ATTORNEYS’ FEES AND COSTS AS DAMAGES

Pursuant to Rule 42(2) of the Supreme Court Rules.

when a petition for writ of certiorari is frivolous, the Court

may award the respondent damages and single or double

costs under Rule 43. In determining whether an appeal is

frivolous, the standard is one of objective reasonableness

under the circumstances. While Petitioner, Richard D.

Cohen (“Cohen”), signs pleadings indicating that he is

representing himself “Pro Se”, Cohen is actually an ex-

perienced attorney who has been a Member of the Florida

Bar since 1987. Incredulously, early in this case Cohen

advised the lower court that he was “just a lay consumer

who entered into a lease . . . {and that he] should not have

to deal with a ‘patchwork quilt’ of conflicting and/or

inconsistent State Sales Tax Law” [App. 4). Clearly, Cohen

should be held to the same objective standard as counsel

representing a third party. See Segarra v. Messina, 153

F.R.D. 22, 29 (N.D.N.Y. 1994); see also, Wesley v. Don Stein

Buick, Inc., 184 F.R.D. 376 (D. Kan. 1998) (Rule 11 sanc-

tions were appropriate egainst an attorney appearing pro

se, where he advanced frivolous claim).

Cohen's Petition for Writ of Certiorari is patently

frivolous as he misstates the facts, omits certain key facts,

and advances arguments without any legitimate basis in

law. Indeed, almost every pleading and motion filed by

Cohen in the lower court evidences unreasonable and

vexatious conduct. Not surprisingly, Cohen has a long

history of unsuccessful appeals in this case, including

three separate appeals and a Petition for Writ of Certiorari

to the Fourth District Court of Appeal.”

Based on the foregoing, World Omni requests that the

Petition be denied and further, that the Court award

World Omni its reasonable attorney's fees and costs, and

such further relief as is just and proper.

Respectfully submitted,

ALLISON KAY GRANT, Esq.

Florida Bar No.: 858330

Counsel of Record for Respondent

RITTER, CHUSID, BIVONA &

COHEN, LLP

7000 Palmetto Park Road,

Suite 305

Boca Raton, Florida 33433

Telephone: (561) 394-2180

Facsimile: (561) 394-2583

" As mentioned above, Cohen has also filed two separate appeals

and two Writs of Prohibition regarding the award of attorney's fees and

costs to World Omni.

TABLE OF APPENDICES

Page

Complaint for Damages dated January 1, 2000....... App. 1

Cohen’s Answer, Affirmative Defenses and Coun-

terclaim dated February 2, 2000..............0....0... App. 26

World Omni’s Motion for Summary Judgment

GNOGE Mine By BOO aims sassitactnderssentrtsssioeliatrisintesys App. 37

Cohen’s Cross Motion for Summary Judgment and

Affidavit in Opposition to World Omni’s Motion

for Summary Judgment and Cohen’s Counter-

claim dated May 26, 2000 (without exhibits) ....... App. 45

Order Granting World Omni’s Motion for Summary

Judgment on Cohen’s Counterclaim dated July

Ay Pests si ccbagbiakatkcedurccanemcnaaataniet ae hdesagioioctrbeis App. 64

Cohen’s Motion to Amend Answer and Affirmative

Defenses dated January 29, 2001... App. 67

Order Denying Cohen’s Motion to Amend Answer

and Affirmative Defenses dated February 26,

SUPA cdi cick cacstavigactestladiccnaiadtaamcabenentn pigedietcems taken App. 84

Order Granting World Omni’s Motion for Final

Summary Judgment on Liability dated April 9,

BEE snicisipaenadadieepidllacssnipck bad niccpuianatigs enaieet inca tuetatadni App. 86

World Omni’s Opposition to Cohen’s Motion for

Summary Judgment dated August 12, 2002

CORN MINNIE oi cctitahactainicstdeicniuamctdercnbucaee App. 88

Cohen’s Notice of Appeal dated August 19, 2003......App. 97

Cohen’s Initial Appellate Brief dated November 26,

WOE isc ae acco sey cick asin a App. 103

RBar SOLD Cangas Ea STE ETE App. 134

TABLE OF APPENDICES - Continued

Cohen’s Motion for Rehearing and Request for

Written Opinion dated August 9, 2004 (without

exhibits)

Cohen’s Petition for Writ of Certiorari dated Sep-

tember 24, 2004

Order Denying Cohen’s Petition for Writ of Certio-

rari dated February 15, 2005

Request, In The Alternative, For Certificate Certi-

fying That A Federal Question Was Raised &

Indicated dated March 3, 2005

Order Denying Cohen’s Motion for Rehearing and

Request for Written Opinion dated March 29,

Technical Assistance Advisement, 2001A-063,

Florida Department of Revenue, dated October 4,

In Matter of the Petition of Thomas Gallagher, New

York Tax Appellate Tribunal, DTA No. 819115

dated October 23, 2003

Cohen's Letter to World Omni dated August 31,

1998 (Exhibit C to World Omni’s Opposition to

Cohen’s Motion for Summary Judgment dated

August 12, 2002)

Page

App. 1

WORLD OMNI FINANCIAL

CORP., IN THE COUNTY COURT,

IN AND FOR PALM

slevinstaid BEACH COUNTY, FLORIDA

CASE NO. £°.00-124.RD

FLORID.A BAR #161836

RICHARD D. COHEN,

DEFENDANT, —_ /

COMPLAINT

(Filed Jan. 4, 2000)

COMES NOW the Plaintiff, World Omni Financial

Corp., by and through its undersigned counsel] and sues

the Defendant(s), Richard D. Cohen, and states:

1. That this is an action in excess of $ 5,000.00 and

less than $ 15,000.00 and is within the jurisdictional

limits of this Court.

2. That the Plaintiff is a corporation authorized to do

business within the State of Florida with offices in Broward

County, Florida.

3. That this lease was assigned to World Omni

Financial Corp

4. That the Defendant(s) is(are) a castles of Palm

Beach County, Florida.

5. That payment was to be made in Broward County,

Florida

6. This communication, from a debt collector, is an

attempt to collect a debt and any information obtained will

be used for that purpose.

App. 2

7. That the Defendant(s) leased a certain 1995

Land Rover Discovery with Identification number

SALJY 1241SA151437 pursuant to a certain Vehicle Lease

Agreement Contract dated 5/13/95 a copy of which is

attached hereto as Plaintiff’s Exhibit “A”.

8. That the Defendant(s) has(have) defaulted by

failing to pay the monthly sum due under Plaintiff's

Exhibit “A” under the terms of the Vehicle Lease Agree-

ment beginning 1/13/98 and Plaintiff has elected to accel-

erate payments of the balance, and there remains unpaid

the sum of $ 11,980.10 together with interest since date of

default.

9. That the subject vehicle was repossessed on 3/5/98

and sold on 4/10/98 in a commercially reasonable manner

to the highest bidder, notice having been provided in

accordance with Plaintiff's attached Exhibit “B”, leaving a

balance due Plaintiff from Defendant(s). in the sum of

$ 11,980.10 as evidenced by Plaintiff’s Exhibit “C”.

10. Demand has been made upon Defendant(s) and

Plaintiff has fulfilled all conditions precedent to the

bringing of this action.

11. That Plaintiff should be awarded attorney’s fees

pursuant to the Vehicle Lease Agreement necessitated by

the filing of this action as included in the “Default Clause.”

App. 3

WHEREFORE, Plaintiff demands Judgment in the

sum of $11,980.10 together with interest, costs and

attorneys fees.

/s/ Dennis B. Freeman

DENNIS B. FREEMAN,

P.A.

Aventura Corporate Center

20801 Biscayne Boulevard,

Suite #304

Aventura, Florida 33180

(305) 682-8500

.- -- -

ie THIS LEASE HAS BEEN ASSIGNED T

¥ oe AMERICA ILLINOIS, AS cote an

’

Ore sossz6 Of aS ott

PURSUANT TO A PLEDGE AND SE i Financial Corp. --° *=+--

AGREEMENT CELOSED/ END ‘MDEOR VEHICLE LEASE AGREEMENT

WORD OMNI : FOR LAND ROVER VEHICLES

| 4

LESSEE (and CO-LESSEE, i any) Name and LESSOR: (Dealer Name and Address) hs

Address (include County and Zip Code) wae

RICHARD D. COHEN LAZARUS FRERES & CO. INGr, D/B/A RANGE RO!

12 POND VIEW CT 359 GLEN BEAD RD. co

JERICHO, NY 11753 GLEN HEAD, NY 11545 ou

NASSAU .

This is an agreement to lease (the “Lease") the vehicle described below (“Vehicle"). By signing this Lease you agree 10 ail terms and conditions on the trom and b

of this Lease. Be sure to read the entire Lease before you sign.

This is a lease and not a purchase agreement. Lessor owns the Vehicle throughout the term of the Lease.

Dealer is assigning this Lease and Vehicle to WORLD OMNI FINANCIAL CORP. (‘Assignee"), and you agrse to this assign =,

in this Lease, “you" and “your” refers to any person signing this Lease as Lessee or Co-Lessee. “Lessor, ‘we’, “us* and “our” refer to Dealer and any Assignee. =

consumer lease disclosures included in this Lease are made on behaif of Dealer, Assignee and (if Assignee isnot World Omni Financial Corp. ("WOFC")) ares ‘O

made on behalf of WOFC, who will administer the Lease. For purposes of the Federal Consumer Leasing Act only, WOFC shouid aiso be considered a Lessor. re

The address for Assignee and WOFC is 120 N.W. 12th Avenue, Deerfield Beach, FL 33442.

Newor | Year Make & Body Vehicie Primary Use Mileage on

Used Model Type identification Number Odometer

LA/RO QO Penal, Family or Household

NEW 95 DISCOVERY | _4DSD__|__ SALJ¥.1.241SA151437_|©) Business or Agrcutural

including: Q Automate O Aijr Q Stereo OQ Crise O Power QO Power QO ABS QO Tit

Trans. Cond. Tape Control Windows Seats Wheel

Q Service Contract OQ) Extended Warranty OtherEquipmert: _

1. AMOUNT OUE WHEN LEASE 2 NUMBER OF

5. PAYMENT SCHEDULE

ISSIGNED §$ 1618. 28 tenmamennocinis Your first Monthly Payment i3 due when you sign this Lease.

These amounts make up Monthly Payments aredueonthe 13THa

Amount Due When anes Is Signed: sccm agua ? JHE 95 : :

a. Capitalized Cost Reduction $ N/h_

b. es Trade-in Allowance (not less than SO) s K/ 6. TOTAL ESTIMATED FEES AND TAXES PAYASLE DURING LEASE:

c. First Monthly Payment in Advance — $ 711.2 $ 2394.25

d. Refundable Security Deposit ees -

e. Title, License and Registration Fees + DOCS 149.9 make : -

!. Sales/Lease/Excise/Use/Ad Valorem Tax a —_—— ee -

a peace Neem ———— a Title, License and Registration Fees $ 149, 8¢

h. Other $ N/ (both initial and renewal)

——— b. Ad Valorem Taxes $ N/A

3. MONTHLY 4. TOTAL OF c. Sales/Lease/Usa/Other Taxes $__ 2255. 2°

PAYMENT MONTHLY PAYMENTS d. Other See

$ 711. 28 $ 25693. 26

‘ 7. LATE PAYMENT FEE: !f any paymentis not made in full within 1 Odays afte

These amounts make up the Monthly Payment: itis due, you will owe a late charge of 5% of the part of the payment that is late

a Bese Monty Pawar $_____71}. 28g ESTIMATED RESIDUAL VALUE OF VEHICLE at scheduled Lease end.

bd. Sales/Use/Lease/Other Tax” $ Nf

c. Other _ sete This value is used in Paragraphs 11 and 16.

a Other ¢ N/A 21517. 42

en ee 9a. EXCESS MILEAGE CHARGE: Mileage in excess 06

for the lease term (*Contract Mileage Allowance* ores ecok ee Sava iitr ™%

The Base Monthly Payment includes both depreciation and lease mileage figure is inserted in the preceding blank, your Contract Mileage Allowanc:

charges. The Total Lease Charge for the entire term of the Lease 's: shail be 1,250 miles per month for each month of the lease term (see Paragrap’

s 7878. 48 This value ts used in Paragraphs 11 and 16 2)), and unless you purchase the Vehicle (see Paragraph 16), you agree to pa

: us at the scheduled termination of the Lease $.12 per mile for each mile drive:

in excess of the Contract Mileage Allowance.

App. 5

9.b REFUND OF UNUSED MILEAGE ALLOWANCE

FOR LEASES OF 36 MONTHS OR LESS: The Stan-

dard Mileage Allowance for a lease with a term of 36

months or less is 1,250 miles per month for each month of

the lease term (see Paragraph 2). If the Contract Mileage

Allowance (see Paragraph 9a exceeds the Standard Mile-

age Allowance, you may be eligible for a refund on the

portion of the unused Contract Mileage Allowance which

exceeds the Standard Mileage Allowance. The refund will

be made at the scheduled termination of this Lease in the

amount of $.12 for each unused mile that the Contract

Mileage Allowance exceeds the Standard Mileage Allow-

ance, less any amounts you owe under this Lease. No

refund will be made for any unused Standard Mileage

Allowance. In addition, no refund will be made if: (i) your

scheduled lease term is more than 36 months; (ii) you

exercise any purchase option; (iH) you voluntarily early

terminate or are in default; or (iv) the refund amount is

less than $1.00.

10.. INSURANCE

Public Liability and Physical Damage Insurance;

Prior to delivery of the Vehicle, you must purchase Public

Liability and Physical Damage Insurance on the Vehicle

that covers both you and us. The coverage must be not less

than $100,000/$300,000 bodily injury, $50,000 property

damage and physical damage coverage with deductibles

not to exceed $500 for collision and $500 for comprehen-

sive. Named Driver Exclusions or other Named Driver or

other non-standard limiting endorsements are NOT

acceptable. NO OTHER TYPES OF INSURANCE ARE

REQUIRED BY US.

App. 6

Assignee must be named as “additional insured” and

“loss payee” on your insurance policy. Each policy must

provide that Assignee will be notified in writing at least 10

days before the insurance is cancelled or coverage altered

and that Assignee or its representative may have full

access to your insurer’s claim file in the event of an insur-

able loss. You have the option of furnishing the required

amount of insurance e.ther (i) through any existing poli-

cies owned or controlled by you and issued by a carrier

reasonably acceptable te us, or (ii) by purchasing the

required coverage separately through any insurer rea-

sonably acceptable to us. We will credit you with the

proceeds of any insurance that we receive for any loss. If

the proceeds of any insurance are not sufficient to pay the

amounts due under Paragraph 13 of this Lease, you agree

to pay the remaining balance due.

11. VOLUNTARY EARLY TERMINATION. Provided

you are not in default (see Paragraph 12), then, upon 15

days prior notice, you may terminate this Lease on the due

date of any Monthly Payment. If you do so, and if you do

not exercise your purchase option at that time (see Para-

graph 16), you will owe us an amount (the “Early Termina-

tion Charge”) determined by ADDING (a) the Base

Monthly Payment (see Paragraph 3 (a)) times the number

of monthly payments not vet made, PLUS (b) the “Esti-

mated Residual Value of Vehicle” (see Paragraph 8), PLUS

Value” (as specified below) of the Vehicle, MINUS (e) the

unearned lease charge calculated in accordance with an

Actuarial Method. Under this method of determining the

unearned lease charge, the monthly lease charges (includ-

ing those for the monzh in which the early termination

occurs) are earned in advance on the scheduled due dates

App. 7

of your Monthly Payments and your Monthly Payments

are deemed to have been received on their scheduled due

dates (see Paragraph 3 for Total Lease Charge).

The “Realized Value” of the Vehicle is the price we receive

at the time of disposition of the Vehicle minus the reason-

able costs of preparation and sale of the Vehicle. For this

purpose, we shall sell the Vehicle at wholesale or other-

wise determine its wholesale value in a commercially

reasonable manner. As an alternative, you may obtain (at

your expense) from a qualified independent appraiser

acceptable to us a written appraisal of the wholesale value

of the Vehicle that could be realized at sale. This appraised

value will be final and binding on you and us.

12. DEFAULT. You will be in default of this Lease if

any of the following occur:

a. You do not make a payment when it is due;

b. You or any of your property becomes the subject

of a proceeding (voluntary or involuntary) in

bankruptcy, receivership or insolvency, or you

make an assignment for the benefit of creditors;

c. You become incompetent or die (if a natural per-

son) or dissolve (if not a natural person);

d. You fail to comply with the insurance require-

ments of this Lease (see Paragraph 10);

e. You do not maintain or repair the Vehicle s re-

quired by this Lease;

f. Any information in your Lease Application (in-

cluding driver information) is materially false or

misleading;

App. 8

g. The Vehicle is stolen, lost, destroyed, seized or

confiscated or is otherwise rendered unavailable

or unsuitable for use;

h. You assign, transfer, sublease, rent or pledge this

Lease or the Vehicle without our permission or

otherwise violate Paragraph 20;

i. You allow the Vehicle to become subject to a lien;

j. You otherwise fail to comply with any other term,

provision or condition of this Lease or fail to keep

any other promise made to us.

13. WHAT YOU OWE UPON DEFAULT.

a. Early Termination Because of Theft or Total Loss.

If we terminate this Lease because of a total loss of the

Vehicle as a result of a fire, theft, collision or comprehen-

sive peril for which we have received an amount equal to

all insurance proceeds due under the insurance policy that

you purchased in accordance with Paragraph 10, plus

payment of any deductible, then, if you have complied with

all other provisions of this Lease, you will owe us nothing

more. If you have not so complied, you will owe us any

amounts otherwise due under this Lease as a result of

your breach.

b. Early Termination Because of Any Other Default.

If we terminate this Lease because of any other default,

then you agree that you will owe us (i) the Early Termina-

tion Charge (see Paragraph 11); (ii) payments accrued

under the Lease through the date of termination; (ili) all

collection, repossessior., storage expenses; (iv) attorneys’

fees and disbursements incurred after default and referral

to an attorney who is not our salaried employee, not to

exceed fifteen percent (15%) of the amount you owe us (or

App. 9

such lesser rate as may be required under applicable law)

and (v) simple interest at a rate of 15% per annum (or

such lesser rate as may be required under applicable law)

on all expenses incurred by us and all obligations that you

owe after termination, other than earned but unpaid lease

charges.

c. Continuation of Lease. In the event of theft or a

total loss of the Vehicle as described in Paragraph 13(a),

instead of declaring a default we may voluntarily elect to

continue the Lease by substituting a comparable replace-

ment vehicle reasonably acceptable to you and us.

14. OUR RIGHTS AND REMEDIES IF YOU DE-

FAULT. We will have all of the rights and remedies

provided by this Lease and by law. We also will have right

to sue you for damages and/or recovery of the Vehicle. We

also may take the Vehicle from you without demand

permitted by law (or, if demand is required by law, upon

compliance with such legal requirements). You agree that

we may enter your property or the property where the

Vehicle is stored in order to take it, so long as it is done

peaceably. If there is any personal property in the Vehicle

when we take the Vehicle from you, we may take the

personal property and store it for you. If we take the

Vehicle you will not be released from any obligation under

this Lease.

15. RETURN OF VEHICLE AT SCHEDULED TER-

MINATION DATE. This Lease is scheduled to end I

month after the last payment is due, unless you and we

agree to extend this Lease. If you and we extend this

Lease, the scheduled termination date will be the date

upon which you and we agree in writing. On the scheduled

termination date of this Lease, you may either purchase

App. 10

the Vehicle (see Paragraph 16) or return the Vehicle to a

reasonable location designated by us in good condition,

without damage, excessive wear or use (see Paragraph 18)

and without excessive mileage (see Paragraph 9a), and

you will pay any amount you owe under this Lease, plus

$250 Disposition Fee. You also agree to pay (a) the cost of

such repairs or replacements needed because of excessive

wear or use (see Paragraph 18) regardless of whether such

repairs or replacemenzs are made in order to put the

Vehicle in good working order and condition and (b) any

excess mileage charge (see Paragraph a). If you fail to

return the Vehicle on its scheduled termination date, you

agree to continue to pay the Monthly Payment shown in

Paragraph 3. Your continued payment of these amounts

does not permit you to keep the Vehicle beyond the sched-

uled termination date of this Lease, and you agree to pay

us for any damage we may suffer because you failed to

return the Vehicle at the end of the Lease.

16. OPTION TO PURCHASE. You have the option to

purchase the Vehicle “AS IS” at the scheduled termination

of this Lease, provided all sums due under this Lease have

been paid by you and you notify us 15 days prior to the

scheduled termination of this Lease. The price you will

pay us will be the Estimated Residual Value of Vehicle (see

Paragraph 8), PLUS a $250 Purchase Option Fee PLUS

any official fees and taxes applicable to the purchase of the

Vehicle.

Prior to the scheduled termination of this Lease and pro-

vided you are not in default (see Paragraph 12), then, upon

15 days prior notice, you have the option to purchase the

Vehicie “AS IS” for an amount determined by ADDING (a)

the Base Monthly Payment (see Paragraph 3(a)) times the

number of Monthly Payments not yet made, PLUS (b)

App. 11

the “Estimated Residual Value of Vehicle” (see Paragraph

8), PLUS (c) a Purchase Option Fee of $250, and then

SUBTRACTING from this sum the unearned Lease

charge calculated in accordance with an Actuarial Method.

Under this method of determining the unearned lease

charge, the monthly lease charges (including those for the

month in which the early termination occurs) are earned

in advance on the scheduled due dates of your Monthly

Payments and your Monthly Payments are deemed to

have been received on their scheduled due dates (see

Paragraph 3 for the Total Lease Charge). You will also owe

any official fees and taxes applicable to the purchase of the

Vehicle.

17. MAINTENANCE, REPAIRS AND OPERATING

EXPENSES. You are responsible for and agree to pay for

all maintenance and repairs to keep the Vehicle in good

working order and ‘condition and any other expenses

associated with operating the Vehicle. You will service the

Vehicle according to the manufacturer’s recommendations

as outlined in the Owner’s Manual and the Maintenance

Schedule folder or as requested by the manufacturer in

any recall campaign and you will complete all necessary

service records.

18. EXCESSIVE WEAR AND USE. Excessive wear

and use includes: (a) glass that is damaged or that you

have tinted; (b) damaged body, fenders, metal work, trim

or paint; (c) missing wheel covers, jack or wheel wrench;

(d) torn dash, floor covers, seats, headliners, upholstery or

interior work or trunk liners; (e) any tires (including care)

that are missing, not of comparable quality to the originals

or with less than 1/8 inch of tread remaining; (f) damage

from water, hail or sand; (g) any damage that makes the

Vehicle either unsafe or unlawful to operate; or (h) any

App. 12

other damage, whether or not covered by insurance that

would cost more than $50 to repair or replace.

19. WARRANTIES AND EXCLUSIONS OF WAR-

RANTIES. Except for a warranty of description of the

Vehicle and a warranty against interference with your

interest under this Lease, the only warranties covering the

Vehicle are the standard manufacturer’s express warran-

ties. You are authorized to receive the benefit of the

manufacturer's warranties on behalf of us. In the event

you become involved in any litigation, arbitration or other

dispute resolution proceeding regarding such manufac-

turer’s warranties, you will promptly notify Assignee in

writing of the proceeding in the manner provided in

Paragraph 32. You agree that Assignee is a necessary

party to any such proceeding. You will also have the

benefits of any extended warranty, or service contract

purchased in connection with this Lease. YOU UNDER-

STAND THAT LESSOR MAKES NO EXPRESS OR

IMPLIED WARRANTIES COVERING THE VEHI-

CLE. IN PARTICULAR, LESSOR MAKES NO EX-

PRESS OR IMPLIED WARRANTIES OF VEHICLE

CONDITION, MERCHANTABILITY, DURABILITY

OR FITNESS FOR A PARTICULAR PURPOSE OR

USE COVERING THE VEHICLE, AND LESSOR

EXPRESSLY DISCLAIMS ANY SUCH EXPRESS OR

IMPLIED WARRANTIES.

20. NO ASSIGNMENT BY YOU. YOU AGREE NOT

TO ASSIGN, TRANSFER, SUBLEASE, RENT OR

PLEDGE THIS LEASE OR THE VEHICLE WITHOUT

OUR EXPRESS WRITTEN CONSENT, NOR WILL

YOU DO ANYTHING TO INTERFERE WITH OUR

OWNERSHIP OF THE VEHICLE.

App. 13

21. ASSIGNMENT BY US. You agree that Assignee

and any future assignee of this Lease may pledge or

reassign this Lease and ownership of the Vehicle and any

of its benefits or burdens except as otherwise provided by

applicable law. You agree that neither the Assignee nor

WOFC (if it is not the Assignee) shall have to make repairs

to the Vehicle, maintain the Vehicle, obtain any insurance

or perform any other service the Dealer has agreed to

perform under this Lease; you will look directly to the

Dealer for these services.

22. NOTICE OF ACCIDENTS AND COOPERATION.

You agree to cooperate fully with us and any insurance

company in the investigation and defense of any and all

claims arising from possession and use of the Vehicle. You

will make a complete report to Assignee within 48 hours

after any accident, theft or loss involving the Vehicle. You

will provide Assignee with all information available

regarding the time, place and the nature of the accident,

theft or loss, the persons involved and any resulting

injuries or damage. You will promptly deliver to Assignee

all papers and documents received by you or by any

operator of the Vehicle in connection with any claim begun

or threatened against us, you or any operator of the

Vehicle. You will provide us or our representative reason-

able time and opportunity to examine the damaged Vehi-

cle. You will comply with all laws and regulations

requiring the reporting of accidents, thefts or loss involv-

ing the Vehicle.

23. LIMITATION OF LIABILITY. We shall not be

liable for any loss of profits or other indirect or consequen-

tial damages or inconveniences which may result to you

from any damages to, or defect in, the Vehicle or for the

time needed to repair or service the Vehicle. Monthly

App. 14

Payments shall continue and not be reduced or delayed

during this time.

24. SECURITY DEPOSIT. You agree to pay a refund-

able security deposit as indicated in Paragraph l(d). We

will deduct from such deposit any charges you may have

under this Lease. We may retain the security deposit until

all amounts you owe under this Lease are paid. We will

refund to you any part of the security deposit that is left.

No interest will accrue on the security deposit- while held

by us.

25. USE. You agree that:

a. Only authorized licensed drivers will operate the

Vehicle;

Neither you nor any other person will operate the

Vehicle while under the influence of alcohol, illegal

narcotics or prescription or non-prescription drugs

if the instructions prohibit operating a motor ve-

hicle;

You will keep the Vehicle free of all fines, liens

and encumbrances and will pay such fines or re-

move any such liens and encumbrances immedi-

ately Gf you do not, we may do so, and any

amounts paid by us shall be an additional

amount owed by you under this Lease);

You will not use the Vehicle illegally, improperly

or for hire;

You will not use the Vehicle to pull trailers if rec-

ommended against by the manufacturer;

You will not remove the Vehicle from the conti-

nental United States; and

App. 15

g. You will not alter, mark or install equipment in

the Vehicle without our consent.

26. LICENSE, REGISTRATION, TAXES AND IN-

SPECTION. You agree to pay for titling, registration and

licensing and for all inspections of the Vehicle required by

any government authority during the term of this Lease.

You will also pay all excise, use, personal property, gross

receipts and other taxes incurred during the term of this

Lease with respect to the use and operation of the Vehicle

except those levied on our net income. The taxes you must

pay will be included in the Amount Due When Lease Is

Signed (see Paragraph 1) or your Monthly Payment (see

Paragraph 3) or separately billed to you by Lessor. Lessor

may change your Monthly Payment increases or decreases

in taxes.

27. ODOMETER DISCLOSURE. Federal law requires

you to disclose the Vehicle’s mileage and certain related

information to the Lessor at the end of the Lease and at

other times in connection with the transfer of ownership of

the Vehicle. You may be fined and/or imprisoned if you fail

to complete the disclosure requested or if you make a false

statement.

28. INSPECTION. You agree to allow us to inspect the

Vehicle at any reasonable time and place. [Illegible]

injuries, claims, demands and expenses arising out of the

[illegible] maintenance, use or operation of the Vehicle.

30. SEVERABILITY AND CHOICE OF LAW. If any

part of this Lease is not valid according to any applicable.

law, all other parts nevertheless will remain enforceable.

The law at the place where you signed this Lease will

govern this Lease.

App. 16

31. HEIRS AND REPRESENTATIVES. This Lease

will bind and benefit you, your heirs, representatives and

successors and will also bind and benefit us and our

successors and assigns.

32. NOTICES. All notices to you will be made to the

last address provided to us in writing. All notices to us

made in accordance with the provisions of this Lease must

be made in writing to the respective addresses set forth

above or to such other address as we provide in accordance

with this Paragraph 32.

33. NO WAIVER. Our excuse of a default does not

mean that a later occurrence of that or any other default

will be excused. Any failure or delay by us in exercising

any of our rights or remedies under this Lease will not

cause us to lose them, and we may exercise them at any

later time.

34. LIABILITY. (a) If there are more than one of

you, each of you shall be liable, separately and together,

for all Monthly Payments (see Paragraph 3) and all other

amounts that may at any time be due and owing to us

under this Lease. (b) _F YOU ARE A CORPORATION,

THE PERSON SIGNING THIS LEASE ON YOUR BE-

HALF REPRESENTS AND WARRANTS THAT HE OR

SHE HAS FULL AUTHORITY TO SIGN THIS LEASE

ON YOUR BEHALF.

35. DELIVERY RECEIPT. By signing this Lease,

you agree that (a) you received and examined the Vehicle

described in this Lease. (b) the Vehicle is as described in

this Lease, and (c) the Vehicle is in good working order and

condition.

App. 17

36. AUTHORITY OF DEALER. THE DEALER

IS AN INDEPENDENT CONTRACTOR AND IS NOT

AFFILIATED WITH WOFC OR ASSIGNEE (IF NOT

WOFC AS AN AGENT, PARTNER OR JOINT VEN-

TURE. NEITHER THE DEALER NOR ANY OF ITS

EMPLOYEES IS AUTHORIZED TO MAKE ANY

ORAL OR WRITTEN PROMISE, AFFIRMATION,

REPRESENTATION OR WARRANTY TO YOU ON

BEHALF OF WOFC OR ASSIGNEE (IF NOT WOFC).

THIS LEASE CONTAINS THE ENTIRE AGREE-

MENT BETWEEN YOU AND US. There are no other

agreements between you and us except those included in

writing in this Lease. No change of this Lease, no course of

performance and no other agreement between you and us

will be binding unless in writing and signed by you and us.

Lessee (and Co-Lessee) initials. [/s/ illegible]

NOTICE: BY SIGNING BELOW, YOU AGREE TO

ALL THE PROVISIONS ON BOTH SIDES OF THIS

LEASE: (1) YOU UNDERSTAND THAT EARLY TER-

MINATION OR DEFAULT MAY SUBJECT YOU TO A

SUBSTANTIAL CHARGE. (2) IF THIS LEASE CON-

TAINS ANY BLANK SPACES, HAVE THEM FILLED

IN. (3) YOU ARE ENTITLED TO A COMPLETELY

FILLED-IN COPY OF THIS LEASE AND OF ANY

OTHER AGREEMENTS, POLICIES OR CERTIFI-

CATES THAT YOU SIGNED OR AGREED TO PUR-

CHASE. :

BY SIGNING BELOW, YOU ACCEPT THE TERMS

AND CONDITIONS OF THIS LEASE.

YOU SIGNED THIS LEASE AND RECEIVED A COPY AT:

GLEN HEAD (CITY) NY (STATE) on 5 (Mo.) 13 (Day) 95

(Yr.)

App. 18

CAUTION: IT IS IMPORTANT THAT YOU THOR-

OUGHLY READ THE CONTRACT BEFORE YOU

SIGN IT.

LESSEE: RICHARD D. COHEN CO-LESSEE:

BY: /s/ Richard Cohen BY:

Dealer accepts this Lease and hereby assigns all of its

right, title and interes: in and to this Lease and in the

| Vehicle described herein to assignee under the terms of

the WOFC Customer Lease Plan Dealer Agreement.

Dealer/Lessor: LAZARUS FRERES & CO. INC. D/B/A

RANGE ROVER LAND

BY: Kathleen {Illegible]

GUARANTY

TO CAUSE THE DEALER TO LEASE THE VEHICLE TO

THE LESSEE, WHOEVER SIGNS BELOW AS THE

“GUARANTOR” JOINTLY AND SEVERALLY UNCONDI-

TIONALLY GUARANTEES PAYMENT (AND NOT ME-

RELY COLLECTION) OF ALL SUMS OWING UNDER

THIS LEASE. THIS MEANS THAT IF THE LESSEE FAILS

TO PAY WHEN DUE ANY MONEY THAT IS OWED ON

THIS LEASE. THE GUARANTOR WILL PAY IT WHEN

ASKED. EACH GUARANTOR ALSO AGREES TO BE

BOUND EVEN IF ONE OR MORE OTHER PERSONS

GUARANTEE PAYMENT OF THIS LEASE. EACH

GUARANTOR ALSO AGREES TO BE BOUND EVEN IF

WE DO ONE OR MORE OF THE FOLLOWING: (A) GIVE

THE LESSEE MORE TIME TO PAY ONE OR MORE

PAYMENTS, (B) GIVE A RELEASE IN FULL OR IN

PART TO THE LESSEE OR ANY OF THE OTHER

GUARANTORS, (C) ACCELERATE ANY PAYMENT DUE

App. 19

FROM THE LESSEE IN ACCORDANCE WITH THIS

' LEASE, (D) RENEW, EXTEND, ASSIGN, REASSIGN OR

PLEDGE THIS LEASE, (E) RELEASE OR EXCHANGE

ANY SECURITY OR (F) PROCEED DIRECTLY AGAINST

THE GUARANTOR (OR ANY OF THEM) WITHOUT

FIRST PROCEEDING AGAINST ANY LESSEE OR SEEK-

ING TO COLLECT ANY SECURITY. EACH GUARANTOR

ACKNOWLEDGES SIGNING THIS GUARANTY ON THE

SAME DATE AS LESSEE SIGNED THE LEASE AND

RECEIVING A COMPLETED COPY OF THIS LEASE

AND THIS GUARANTY AT THE TIME OF SIGNING.

THIS GUARANTY MAY NOT BE TERMINATED SO

LONG AS ANY LESSEE HAS ANY OBLIGATIONS

REMAINING UNDER THIS LEASE.

GUARANTOR: (SEAL) ADDRESS:

App. 20

World Omni Financial Corp. [LOGO]

P.O. Box 991817

Mobile, AL 36691-1817

(800) 553-2650

March 02, 1998

RICHARD D. COHEN

12582 TORBAY DR

BOCA RATON FL 33428

1. NOTICE OF REPOSSESSION AND RIGHT TO

REDEEM/REINSTATE

Date of Repossession: 02/27/98

Date of Contract: 05/13/95

Account Number: 01-12-0320-01173-01173

Vehicle Description: 95 LAND ROV DISCOVER

Vehicle Identification Number SALJY1241SA151437

We have repossessed the vehicle described above. It will

not be sold until 10 days after the date of this notice at the

earliest. After that you can still get it back any time before

it is actually sold.

As of the date of this Notice, you must pay $25,218.99

which does NOT include expenses to get the vehicle back.

The longer you wait, the more you may have to pay to get

the vehicle back. If the vehicle is sold and the sale price is

less than the total amount you owe, you may be responsi-

ble for the difference.

Please contact us to get the vehicle back.

Collection Department

App. 21

2. NOTICE OF SALE

&) PRIVATE SALE: The (UO PUBLIC SALE: The prop-

property described above erty described above will be

will be sold at a private offered for sale at public

sale at any time after 10 auction to the highest bidder

days from the Date of on the date and at the place

Notice shown above, unless and iime indicated below,

redeemed by you prior to unless redeemed by you prior

such sale. to such sale.

DATE OF SALE:

TIME OF SALE:

PLACE OF SALE:

App. 23

World Omni Financial Corp.

P.O. Box 991817

Mobile, AL 36691-1817

(800) 553-2650

July 24, 1998

RICHARD D COHEN

12582 TORBAY DR

BOCA RATON FL 33428

RE: Account Number: 01-12-0320-01173-01173

Vehicle Description: 95 LAND ROV DISCOVER

Vehicle Identification Number: SALJY1241SA151437

Date of Sale: 04/19/98

Method of Sale: Private Sale

Selling Price: $11,600.00

Dear Customer:

The vehicle described above which was repossessed from

you has been sold. This statement outlines the manner in

which we applied the sale proceeds.

REPOSSESSION ACCOUNTING STATEMENT

(Computation of Deficiency or Surplus Balance)

Unpaid Balance on your Contract $ 23,796.22

ADD: ;

Accrued Interest Charges $ 142.76

Disposition Fee 250.00

Late Charges 75.38

DEDUCT:

Security Deposit 750.00

Unearned Lease Charges 296.68

BALANCE OWED PRIOR TO SALE:

SALE PROCEEDS:

DEDUCT:

Expenses of Sale

Expenses of Retaking & Storage

Collection Expenses

AMOUNT APPLIED TO CONTRACT 11,237.58

DEFICIENCY BALANCE $ 11,980.10

(Amecunt you owe)

Please send your check in the amount stated, within 30

days from today’s date. If you have any questions, please

call our office at the number listed above.

World Omni Financial Corp.

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App. 26

IN THE COUNTY COURT, IN AND FOR

PALM BEACH COUNTY, FLORIDA

WORLD OMNI FINANCIAL : Case No.: Case No.

CORP., : $C 00-124.RD

Plaintiff : DEFENDANT'S ANSWER,

¢ : AFFIRMATIVE DE-

VS. : FENSES AND COUN-

: TERCLAIM AND

RICHARD D. COHEN, - DEMAND FOR JURY

Defendant - TRIAL

Defendant Richard D. Cohen (“Cohen”), appearing pro

se, hereby appears the Complaint and says that each and

every allegation not specifically admitted below is hereby

denied and as to each number paragraph states:

1. Admitted for jurisdictional purposes only.

2. Cohen is without sufficient knowledge to

admit or deny the allegations in this para-

graph and those allegations are therefore

denied. Cohen demands strict proof thereof.

Cohen is without sufficient knowledge to

admit or deny the allegations in this para-

graph and those allegations are therefore

denied. Cohen demands strict proof threof.

Admitted.

Deny.

Cohen is without sufficient knowledge to

admit or deny the allegations in this para-

graph and those allegations are therefore

denied. Cohen demands strict proof thereof.

Admitted.

Deny.

AFFIRMATIVE DEFENSES

AND COUNTERCLAIMS

Counter-Plaintiff Richard D. Cohen (“Cohen”) file

their Counterclaim against Plaintiff/Counter-Defendant

World Omni Financial Corp. (World Omni”) and allege as

follows:

12. This is an action for damages in excess of

$15,000 exclusive of interest, costs and at-

torneys fees

This Court has subject matter jurisdiction

over this case pursuant to Article V, Section

5 of the Florida Constitution and pursuant

to Florida common law.

At all material times World Omni was and

is qualified to do business in Palm Beach

County, Florida.

Venue is appropriate in Palm Beach

County, Florida because the causes of action

accrued in Palm Beach County.

This Court has personal jurisdiction over

World Omni because they invoked in the

Court’s jur.sdiction by bringing the Com-

plaint.

All conditions precedent to the filing of

these counterclaims have occurred or have

been waived.

App. 2@

Factual Background

18. On May 13, 1995, Cohen, as Lessee, entered

into a Closed End Motor Vehicle Lease

Agreement for Land Rover Vehicles (the

“Lease”) with Lazarus Freres & Co. d/b/a

Range Rover (“Lazarus”), as Lessor, covering

a 1995 Land Rover Discovery bearing Vehicle

Identification Number SALJY124SA151437

for a term of thirty six (36) months commenc-

ing on May 13, 1993 and continuing through

May 14, 1998.

19. Concurrently therewith, Lazarus assigned

all of it’s right, title and interest in the

Lease to World Omni.

20. Upon information and belief, World Omni

__thereafter further assigned all of it’s right,

title and interest in the Lease to Bank of

America, Illinois, as Collateral Agent, pur-

suant to a Pledge and Security Agreement.

21. The Lease was entered into in Glen Head,

New York.

22. Paragraph 30 of the Lease provides that

“{t)]he law of the place where you signed this

Lease will govern this Lease”.

23. Sales tax computed in accordance with the

then prevailing sales tax rate of 8.5% was

incorporated into the monthly lease pay-

ments of $711.20 required under the Lease.

This is evidenced by the fact that the term

“N/A” appears as the entry for “Sales/

Use/Lease/Other Tax” in Paragraph 3b of

the Lease, and is further evidenced by the

fact that for the period beginning in June,

1995 and for each month thereafter through

App. 29

and including June, 1996, World Omni in-

voiced Cohen for $711.20 with no provision

for sales tax.

In June, 1996, Cohen moved from New York

to Florida and notified World Omni of his

change of address.

Beginning with the July, 1998 lease invoice,

World Omni began invoicing Cohen for

$753.87, which consisted of the $721.20

monthly lease payment reserved in the

Lease (which already included the New

York sales tax as aforesaid) plus $42.67 in

Sales Uses Tax, presumably computed at

the applicable Florida rate.

Cohen did not notice the double billing of

sales tax until October, 1997 and errone-

ously paid duplicate sales tax for the fifteen

(15) month period commencing July, 1996

and continuing through and including Sep-

tember, 1997, resulting in an aggregate of

$643.05 in mistaken sales tax payments to

World Omni. In October, 1997, Cohen took a

setoff and deduction in the sum of $643.05.

against the $711.20 monthly lease payment,

and remitted to World Omni his check for

the $68.15 difference along with his cover

letter dated October 6, 1997 explaining the

basis for the setoff.

World Omni wrongfully refused to accept

the setoff and wrongfully continued to in-

voice Cohen for the setoff amount, late

charges on, the setoff amount, Florida sales

tax, and late charges on the unpaid Florida

sales tax for the balance of the lease term.

28.

App. 30

In an attempt to resolve the matter, Cohen

initiated several telephone calls to World

Omni, most notably one to a Mr. Schmidt,

wherein Cohen explained that he would be

only too happy to pay Florida Sales Tax at a

rate of 6.5% provided that they credit the

monthly lease payment for the 8.5% New

York Sales Tax already included in the

$711.20 monthly payment. Schmidt re-

sponded by saying that New York will not

refund to World Omni the sales tax previ-

ously paid to them. Cohen replied by stating

that (1) he had no standing to apply to New

York for a refund since he was neither the

titleholder nor the registrant of the vehicle

nor the remitter of the sales tax as far as

New York was concerned; (2) to the extent

that New York was unwilling to refund the

unearned portion of the sales tax, this was

World Omni’s problem and responsibility;

and (3) the terms of the Lease and the prior

course of dealing and course of performance

between the parties unequivocally estab-

lished that 8.5% sales tax was already in-

corporated in the $711.20 monthly payment

reserved in the Lease.

Cohen fully and timely paid the $711.20

monthly lease payment reserved under the

Lease each and every month throughout the

lease term through and including the Feb-

ruary, 1998 payment (which covered the

charges accruing through March, 13, 1998).

In February, 1998, the vehicle which was

the subject of the Lease was “rear-ended” by -

another car, damaging the rear bumper of

the leased vehicle. The driver of the other

car, not wanting to put the matter through

App. 31

her insurance company, offered to pay for

the necessary repairs to the leased vehicle

and called in her credit card number to

North Dade Range Rover where the vehicle

was taken for repair, and authorized them

to charge the repairs to her credit card.

On or about February 27, 1998, notwith-

standing the unassailable fact that Cohen

fully and timely paid and performed all of

his obligaticns under the Lease in strict ac-

cordance with the terms oi the Lease, World

Omni purported to repossess the vehicle

from the premises of North Dade Range

Rover, before North Dade had the opportu-

nity to perform the repairs that had been

authorized. On March 2, 1998, World Omni

sent Cohen a Notice of Repossession.

On March 13, 1998, World Omni sent Cohen

a monthly lease invoice thereby superceding

and negating the previous Notice of Repos-

session.

Notwithstanding the foregoing, Cohen was

notified by letters from World Omni dated

May 28, 1998 that the leased vehicle was

sold, and claiming a deficiency balance of

$11,837.34.

World Omni falsely and maliciously re-

ported and continues to report to various

credit reporting bureaus, including but not

limited to Equifax, TransUnion and Trans-

america, that Cohen was delnquent in

payment of his obligations under the Lease

(when in fact he was not) and that the vehi-

cle had beea repossessed (even though such

repossession was wrongful and in blatant

35.

36.

37.

38.

App. 32

violation of the terms of the Lease), creating

the false impression that Cohen is a dead-

beat.

Cohen relies upon the availability of credit

for the conduct of his business and personal

affairs.

Cohen’s prospective creditors rely upon

statements made by Cohen’s past and exist-

ing creditors contained in credit reports is-

sued by the various credit bureaus in

making their decisions as to whether or not

(or to what extent) to grant credit to Cohen

and on whatterms. -

World Omni’s false and defamatory state-

ments to the credit reporting agencies have

severely impaired and at times completely

precluded Cohen’s ability_to obtain credit

and/or have resulted in Cohen not being

able to obtain credit on the most competitive

terms which would have been otherwise

available to Cohen absent World Omni’s

false and defamatory statements.

As a direct result of the foregoing, Cohen

has incurred credit costs, in the form of

higher interest rates, higher downpayment

requirements, higher origination fees, addi-

tional collateral requirements, etc., that

would not have had to have been incurred

absent World Omni’s false and defamatory

statements. In addition, Cohen has lost and

forfeited valuable business opportunities

because of his inability to obtain credit on

competitive terms which would otherwise

been available to him absent World Omni's

false and defamatory statements.

39.

10.

App. 33

First Affirmative Defense - Estoppel

Cohen realleges paragraphs 18-38 as if fully

set forth herein.

As a result of World Omni's failure and/or

refusal to permit North Dade Ranger Rover

to effectuate the repairs to the vehicle that

were author.zed, World Omni should be es-

topped from recovering damages that could

and would have been mitigated as a result

of such repairs.

Second Affirmative Defense - Lack of Standing

41.

42.

43.

44.

Cohen realleges paragraphs 18-38 as if fully

set forth herein.

As a result of World Omni’s assignment of

the Lease to Bank of America, Illinois,

World Omni lacks the requisite standing to

prosecute this action.

Third Affirmative Defense - Wrongful

Repossession and Sale

Cohen realleges paragraphs 18-38 as if fully

set forth herein.

Because Conen was not in default of the

payment or performance of his obligations

under the Lease, there was no basis for

World Omnis repossession and sale of the

vehicle and World Omni should be barred

from seeking the recovery of any deficiency

occasioned ia connection with such sale.

46.

47.

WHEREFORE, Cohen demands a judgment in his favor

against World Omni for compensatory damages, interest,

App. 34

Count I - Breach of Contract

Cohen realleges paragraphs 18-38 as if fully

set forth herein.

World Omni breached the Lease by wrong-

fully repossessing the vehicle on February

27, 1999 even though the Lease was fully

paid in accordance with the terms thereof

through March 13, 1999.

As a result of World Omni’s breach, Cohen

was deprived of use and possession of the

vehicle for fifieer (15) days for which he had

already paid and is entitled to a refund of

$355.60 representing the value of the use of

which he was deprived. In addition, Cohen

is also entitled to a refund of the $750 secu-

rity deposit that was paid by him upon-exe-

cution of the Lease.

and costs.

48.

49.

00.

Counts II - Breach of Contract

Cohen realies paragraph 18-38 as though

fully set forth herein.

World Omni further breached the Lease by

failing to credit Cohen for the unearned por-

tion of the New York Sales Tax included in

the monthly lease payments for the period

from July, 1996 through February, 1998.

There is a 2% difference between the appli-

cable 8.5% New York Sales Tax and the ap-

plicable 6.5% Florida Sales Tax.

App. 35

As a result o2 the foregoing, Cohen was over-

charged and therefore overpaid approxi-

mately $14.22 (2% of $711.20) each month for

a period of twenty (20) months beginning in

July, 1996 and continuing through February,

1998, resulting in an aggregate of $284.40 in

overcharges/cverpayments.

WHEREFORE, Coher. demands a judgment in his favor

against World Omni for compensatory damages, interest

and costs.

Count III - Libel

Cohen realleges paragraphs 18-38 as

though fully set forth herein.

World Omn:’s statements about Cohen to

the credit bureaus, although false, accuse

Cohen of immoral, unprofessional and un-

ethical conduct and of conduct incompatible

with the proper exercise of his business and

personal affairs, and constitute libel per se.

As a direct and proximate result of World

Omni's statements, Cohen’s reputation and

credit has been severely damaged.

World Omni’s conduct as alleged in this

Counterclaim was willful and wanton.

WHEREFORE, Cohen demands judgment in his favor

against World Omni for compensatory damages, in an

amount in excess of $15,000 plus costs of suit.

App. 36

DEMAND FOR JURY TRIAL

Cohen pursuant to Florida Rule of Civil Procedure

1.430 hereby demands a jury trial on all issues so triable

in the above captioned matter.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of

the foregoing Anwer, Affirmative Defenses, Counterclaim

and Demand for Jury Trial has been furnished via U.S.

Mail to: Dennis B. Freeman, P.A., Aventura Corporate

Center, 20801 Biscayne Blvd., Suite 304, Aventura,

Florida 33180 on the 2nd day of February, 2000.

RICHARD D. COHEN

Defendant Pro Se

21870 Cartagena Drive

Boca Raton, Florida 33428

(561) 883-6227

By: /s/ Richard D. Cohen

Richard D. Cohen

App. 37

IN THE COUNTY COURT IN AND FOR

PALM BEACH COUNTY, FLORIDA

CASE NO.: SC 00-124.RD

WORLD OMNI FINANCIAL CORP,

Plaintiff,

vs.

RICHARD D. COHEN,

Defendant.

PLAINTIFF’S MOTION FOR FINAL SUMMARY

JUDGMENT ON DEFENDANT’S COUNTERCLAIM

WITH SUPPORTING MEMORANDUM OF LAW

Plaintiff/Counter-Defendant, WORLD OMNI FINAN-

CIAL CORP. “WORLD OMNI”), by and through its

undersigned attorneys, pursuant to Florida Rule of Civil

Procedure 1.510, submits this motion for an order granting

it final summary judgment against Defendant/Counter-

Plaintiff, RICHARD D. COHEN (“COHEN”) on his Coun-

terclaim. In support of its motion, WORLD OMNI states

as follows:

1. This is an action arising out of a March 13, 1995

Closed-End Vehicle Lease Agreement between COHEN

and Lazarus Freres & Co. d/b/a Range Rover (the “Lease

Agreement”) (the “Dealer”). Pursuant to the terms of the

Lease Agreement, a copy of which is annexed as Exhibit

“A,” COHEN leased a 1995 Land Rover Discovery (the

“vehicle”) for a period of 36 months. The Lease Agreement

was assigned by the Dealer to WORLD OMNI.

2. COHEN defaulted under the Lease Agreement by

failing to make full monthly lease payments to WORLD

App. 38

OMNI beginning January 13, 1998. As a result of

COHEN ’s default under the Lease Agreement, WORLD

OMNI repossessed the vehicle on March 5, 1998 and sold

it at auction in a commercially reasonable manner on April

10, 1998.

3. WORLD OMNI initiated this action against

COHEN by service of a Complaint, a copy of which is

annexed as Exhibit “B,” seeking to recover the deficiency

balance in the sum of $11,980.10 which resulted from the

sale of the vehicle.

4. On or about February 2, 2000, COHEN filed his

Answer to the Complaint with Affirmative Defenses and

Counterclaim against WORLD OMNI, a copy of which is

annexed as Exhibit “C.”

5. In the Counterclaim, COHEN alleges that he

entered into the Lease Agreement with the Dealer in

Glenhead, New York. As required by New York law,

COHEN paid the Sales and Use Tax for the entire Lease

Agreement at the then prevailing rate of 8.5%. His

monthly lease payment was $711.20 under the Lease

Agreement. (Counterclaim, 423).

6. In June of 1996, COHEN moved from New York to

Florida. As demonstrated below, Florida law required

WORLD OMNI to then collect for Florida Sales and Use

Tax. Beginning in July of 1996, WORLD OMNI raised

COHEN’s monthly lease payment to $753.87, which

consisted of the $711.20 monthly lease payment and

$42.67 in Sales and Use Tax (6% as required by Florida

law). (Counterclaim, 425).

App. 39

7. COHEN alleges that he did not notice the “double

billing” for some 15 months until October of 1997. (Coun-

terclaim, 426).

8. COHEN admits that he did not pay WORLD

OMNI the entire monthly payment of $753.87 beginning

in October of 1997. Rather, he unilaterally took a “set-off”

in the amount of $643.05 (15 months x $42.67 which was

the Florida Sales and Use Tax). (Counterclaim, 126).

9. COHEN acknowledges that he only paid $711.20

to WORLD OMNI uader the Lease Agreement through

February, 1998. (Counterclaim, 429). This amount did not

include the $42.60 for Sales and Use Tax required under

Florida law. (Counterclaim, 429). Based on COHEN’s

failure to make the required lease payments of $753.87,

the vehicle was repossessed by WORLD OMNI.

10. The Counterclaim against WORLD OMNI

purports to allege three causes of action including two

counts for breach of contract (the Lease Agreement) and

one count for libel premised upon WORLD OMNI’s charg-

ing COHEN Florida Sales and Use Tax when he moved to

Florida in June of 1996.

11. For purposes of this motion, the record evidence

in this case demonstrates that the State of Florida re-

quired WORLD OMNI to collect for Sales and Use Tax on

the vehicle when he rioved to Florida. See, Florida Statute

Section 212.06(8a), Section 12A-1.007, FA.C.; and

Technical Assistant Advisement No. 98A-037, Flomda

Department of Revenue. In short, COHEN’s misconstrued

interpretation of the State of Florida’s taxation on lease

payments on vehicles originally leased in another state

and moved, to Florida is unsupported by law or eviden-

tiary facts. Thus, there are no genuine material issues of

App. 40

fact presented. WORLD OMN! is entitled to final sum-

mary judgment on COHEN’s Counterclaim as a matter of

law.

WHEREFORE, WORLD OMNI respectfully requests

that the Court grant final summary judgment in its favor

and against COHEN on his Counterclaim, together with

such other and further relief as the Court may deem just

and proper.

MEMORANDUM OF LAW

WORLD OMNIS MOTION FOR FINAL SUMMARY

JUDGMENT SHOULD BE GRANTED

It is hornbook law that summary judgment is appro-

priate where there are no genuine issues and material fact

and the movant is entitled to judgment as a matter of law.

See, Andre v. Pomeroy, 35 N.Y. 2d 361, 362 N.Y.S. 2d 131,

133 (1974); §3212 of the New York Civil Practice Law &

Rules (McKinney’s 1997); Noris v. Silver, 701 So. 2d 1238

(Fla. 3d DCA 1997); Wills v. Sears Roebuck & Co., 351 So.

2d 29 (Fla. 1977). For the reasons which follow, there are

no genuine issues of material fact presented that WORLD

OMNI was required to collect for Florida Sales and Use

Tax when COHEN moved to Florida in June of 1996.

Therefore, WORLD OMNI is entitled to final summary

judgment as to COHEN’s Counterclaim as a matter of law.

In spite of COHEN’s allegations, the State of Florida

required WORLD OMNI to collect for Sales and Use Tax

on a leased vehicle without regard to its prior use or tax

paid on purchases outside the state. To this point, Florida

Statute Section 212.06 entitled Sales, Storage, Use Tax;

Collectible from Dealer; “Dealer” defined; Dealers to

App. 41

Collect from Purchasers; Legislative Intent as to

scope of tax, provides as follows:

(8a)... the rental or lease of tangible per-

sonal property which is used or stored in this

state shall be taxable without regard to its prior

use or tax paid on purchase outside this state.

(Emphasis added).

Further, 12A-1.007(14), FAC, provides in relevant part

as follows:

(a) The rental or lease of an aircraft, boat, mo-

bile home, or motor vehicle, which is used or

stored in this state, shall be taxable without re-

gard to its prior use or tax paid on the purchase

outside this state. See also, Technical Assistance

Advisement No. 98A-037, Florida Department of

+“

Revenue (the

Exhibit “D”).

vevenue Opinion”) (Annexed as

In discussing the taxability on leases of a motor

vehicle in Florida, the Revenue Opinion notes as follows:

The lease of a motor vehicle in Florida was sub-

ject to sales and use tax even though the vehicle

had been used and was taxed on tits purchase tn

another state prior to being moved to and regis-

tered in Florida. The rental or lease of tangible

personal property used or stored in Florida is

taxable regardless of whether the property was

used or taxed in another state. See 212.06(8),

FS.; Rule 12A-1.007(14), FA.C. (Emphasis

added).

The underlying facts addressed in the Revenue

Opinion are strikingiy similar to the facts in the case at

bar. In the Revenue Opinion, a 1997 Toyota Avalon was

leased under a New York Motor Vehicle Lease Agreement

App. 42

dated December 12, 1996. The lessee paid the Sales and

Use Tax of $1,211.81 to the State of New York concurrent

with the signing of the lease agreement. The wife (the

driver of the leased vehicle since inception) and two sons

relocated to the State of Florida in November of 1997

requiring that the vehicle be garaged and registered in

Florida. The lessor then assessed an additional 6% tax on

the monthly lease payment representing Florida Sales and

Use Tax. The lessor indicated that the additional tax was

pursuant to Florida Statute Section 212.06(8)(a).

Here, as in Revenue Opinion, the additional Florida

Sales and Use Tax assessment was disputed by the lessee.

In relying upon Florida Statute Section 212.06(8)(a)

and Rule 12A-1.007(14), F-.A.C., The Florida Department

of Revenue stated as follows:

It is the department’s position that the statute is

clear in providing that a lease or rental of tangi-

ble personal property used or stored in Florida is

taxable irrespective of its prior use or prior tax-

able status in another state. Therefore, your lessor

ls correct in charging you tax on your automobile

lease. (Emphasis added).

Contemplating a relocation of the lessee, the Lease

Agreement allows WORLD OMNI to increase or decrease

taxes which may change the monthly payment. Paragraph

26 of the Lease Agreement provides as follows:

26. LICENSE, REGISTRATION, TAXES

AND INSPECTION. ... Lessor may or change

your Monthly Payment for increases and de-

creases in taxes. (Emphasis added).

Given the foregoing, WORLD OMNI had no choice but

to charge COHEN for Florida Sales and Use Tax when he

App. 43

moved to Florida. COHEN’s misconstrued interpretation

of “double billing” is legally and factually untenable.

COHEN cannot legitimately dispute that under control-

ling statutes WORLD OMNI was required to charge him

for Florida Sales and Use Tax under the Lease Agreement

when he moved to Ficrida. Accordingly, WORLD OMNI is

entitled to final summary judgment on COHEN’s Counter-

claim premised on the contrary.

CONCLUSION

WORLD OMNI requests that the Court enter an

Order granting final summary judgment in its favor and

against COHEN on his Counterclaim, together with such

other and further relief as the Court may deem just and

proper.

RITTER CHUSID BIVONA

& COHEN, LLP

Attorneys for World Omni

Financial Corp.

7000 West Palmetto Park Road

Suite 400

Boca Raton, Florida 33433

(561) 394-2180

(561) 394-2582 (fax)

By: /s/ Mitchel Chusid

MITCHEL CHUSID

FLA. BAR NO.: 879282

—_—_—_——__———

App. 44

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy

of the foregoing was served by U.S. Mail on this 2nd day of

May, 2000 to: Richard D. Cohen, 21870 Cartagena

Drive, Boca Raton, Florida 33428.

RITTER CHUSID BIVONA

& COHEN, LLP

Attorneys for World Omni

Financial Corp.

7000 West Palmetto Park Road

Suite 400

Boca Raton, Florida 33433

(561) 394-2180

(561) 394-2582 (fax)

By: /s/ Mitchel Chusid

MITCHEL CHUSID

FLA. BAR NO.: 879282

App. 45

IN THE COUNTY COURT,

IN AND FOR PALM BEACH COUNTY, FLORIDA

WORLD OMNI FINANCIAL : Case No:.:

CORP., : Case No. SC 00-124 RD

Plaintiff,

VS.

RICHARD D. COHEN,

Defendant

DEFENDANT’S CROSS-MOTION FOR SUMMARY

JUDGMENT DISMISSING THE COMPLAINT

Defendant/Counter-Plaintiff, RICHARD D. COHEN

(“COHEN”), pursuant to Florida Rule of Civil Procedure

1.510, submits this cross-motion for an order granting

final summary judgment against the Plaintiff/Counter-

Defendant, WORLD OMNI FINANCIAL CORP. (“WOFC”)

dismissing the Complaint in it’s entirety. In support of it’s

cross-motion, COHEN hereby incorporates the attached

Affidavit of Richard D. Cohen, sworn to the __ day of

May, 2000, together with the supporting exhibits attached

thereto.

I HEREBY CERTIFY that a true and complete copy of

the forgoing has been furnished by U.S. Mail and facsimile

on this ____ day of May, 2000 to: Ritter, Chusid, Binova &

Cohen, LLP, 7000 West Palmetto Park Rd:, Suite 400,

Boca Raton, Florida 33433.

RICHARD D. COHEN

Defendant Pro Se

21870 Cartagena Drive

Boca Raton, Florida 33428

(561) 883-6227

App. 46

By: /s/ Richard D. Cohen

Richard D. Cohen

App. 47

IN THE COUNTY COURT,

IN AND FOR ?ALM BEACH COUNTY, FLORIDA

WORLD OMNI : Case No.:

FINANCIAL CORP., : Case No. SC 00-124.RD

Plaintiff. © AFFIDAVIT IN OPPOSI-

' TION TO PLAINTIFF'S

' MOTION FOR SUMMARY

RICHARD D. COHEN, ~ JUDGMENT ON DEFEN-

., . DANT’S COUNTERCLAIM

Defendaazt ’ AND IN SUPPORT OF

' DEFENDANT'S CROSS.-

' MOTION FOR SUMMARY

' JUDGMENT DISMISSING

' THE COMPLAINT.

VS.

STATE OF FLORIDA

COUNTY OF PALM BEACH

BEFORE ME, the undersigned authority personally

appeared Richard D. Cohen, who being first duly sworn,

deposes and says:

1. Iam over the age of eighteen and I am resident

of Palm Beach County, Florida. I am the Defen-

dant in the within action.

I make this affidavit (i) in opposition to the

Plaintiff's Motion for Final Summary Judgment

on Defendart’s Counterclaim, and (ii) in support

of the Defendant's Cross-Motion for Final Sum-

mary Judgment dismissing the Complaint.

The Defendant's arguments, each of which is dis-

cussed at length hereinbelow, can be summarized

as follows: .1) the statutory section cited by the

plaintiff in support of it’s motion is inapplicable to

the case at bar (the properly applicable statutory

App. 48

section and related Tax Information Publication

is cited herein and/or attached hereto); (2) the

“Revenue Opinion” relied upon by the plaintiff is

self-serving, constitutionally flawed, erroneous,

non-binding and amply distinguishable from the

case at bar; (3) even assuming arguendo that the

transaction is subject to Florida Sales Tax, the

plaintiff can offer no explanation for it’s attempt

to levy Florida Sales Tax not only upon the base

amount but also upon the New York Sales Tax al-

ready included in the monthly payment thereby

resulting in a “tax upon a tax”; (4) the plaintiff is

under formal investigation by the Florida De-

partment of Revenue for it’s double billing of

sales tax; (5) although the plaintiff argues that

the transaction is subject to Florida Sales Tax for

the period of time during which the leased vehi-

cle was located in Florida, it notably fails to ad-

dress the entitlement to a credit or refund from

New York for the unearned portion of the New

York Sales Tax previously paid; (6) multiple taxa-

tion of the same goods and services (which the

plaintiff seeks to impose upon the defendant) vio-

lates the Commerce Clause of the Federal Con-

stitution. (7) the lease between the parties

unambiguously provides for an “all inclusive

monthly payment” and further provides that the

defendant is entitled to receive the benefit of a

decrease in sales taxes, which was occasioned by

the defendant’s relocation from New York to Flor-

ida; and (8) upon the inception of the lease, the

defendant deposited with plaintiff a security de-

posit in the sum of Seven Hundred and Fifty Dol-

lars ($750) which provided more than adequate

protection to the plaintiff for the default claimed

by it, i.e. the non-payment of the disputed sales

taxes; therefore, the plaintiff’s repossession and

App. 49

sale of the vehicle was overreaching and wrong-

ful.

Before proceeding with the legal arguments, I

would like to make a visceral appeal to the

Court. I am ust a lay consumer who entered into

a lease to pay an all-inclusive $711.20 per month

and should be given the benefit of his bargain.

I should not have to deal with a “patchwork

quilt” of conflicting and/or inconsistent State

Sales Tax Laws. It is not for me to determine

whether the New York Sales Tax Law is perhaps

overreaching by attempting to capture tax for the

entire term of a lease upon lease irrespective of

whether of rot the vehicle is in New York for the

entire term, or whether Florida Sales Tax Law is

possibly deficient by failing to provide for a credit

of Sales Taxes previously paid to another State.

Florida Statute Section 212.06 8(a) cited to by

plaintiff in support of it’s motion provides that

“the rental cr lease of tangible personal property

which is used or stored in this state shall be tax-

able without. regard to it’s prior use or tax paid

on the purchase outside this state” {emphasis

supplied]. Because the defendant herein is not

claiming that he is entitled to a credit as a result

of any tax paid as a result of a purchase outside

the state, this section is wholly inapplicable and

without relevance to the case at bar. The appro-

priate statutory section, to which the plaintiff

conspicuously omits any reference, is Section

212.6, subsection 7, which provides, in pertinent

part, as follows:

“The provisions of this chapter do not apply

in respect to use or consumption of tangible

personal property or services... upon which

a like tax equal to or greater than the

App. 50

amount imposed by this chapter has been

lawfully imposed or paid in another state,

territory of the United States, or the District

of Columbia.”

Attached hereto as Exhibit “A” is a true and com-

plete copy of the State of Florida Department of

Revenue Tax Information Publication (TIP)

#98(A) 117 which provides in pertinent part as

follows:

“Section 212.06(7), F.S.. allows a credit to be

given on tangible personal property brought

into the State of Florida where a like tax has

been lawfully imposed and paid in another

state. If the amount of the tax paid is equal

to or greater than the amount imposed by

Florida, no additional tax is due” |em-

phasis supplied].

“It is the position of the Department that

credit shall be given for a like tax paid in

another state whether the tax has been paid

to the state, or a county of city (local taxes)

within the other state provided that the like

tax is related to the transaction”.

The defendant respectfully requests that the

Court take judicial notice of the fact that the ap-

plicable sales tax rate in Nassau County, New

York (where the sales tax for the entire lease

term was previously paid) is and was 8.5% and

that the applicable sales tax rate in Palm Beach

County, Florida is and was 6% at all relevant

times herein. The defendant further requests

that the Court also take judicial notice of the

mathematical axiom that the number 8.5 is

greater than the number 6. Since 8.5 is greater

App. 51

than 6, then pursuant to FS. Section 212.06(7),

no additional tax is due.

In order to fully illustrate for the Court why the

Revenue Opinion cited by plaintiff in support of

it’s motion is clearly erroneous as a matter of

law, [ would first like provide the Court with a

brief survey of U.S. Supreme Court decisional

law dealing with Federal Constitutional limita-

tions on State taxes. The case of Complete Auto

Transit, Ine. v. Brady, 430 U.S. 274 (1977) es-

tablished a four prong test for determining the

validity of state taxes against a Commerce

Clause challenge. A tax is constitutional under

the Commerce Clause so long as the tax 1) is ap-

plied to an activity with a substantial nexus with

the taxing state; 2) is fairly apportioned; 3: does

not discriminate against interstate commerce;

and 4) is fairly related to the services provided by

the state. 430 U.S. at 279. Conceding that the

first prong that both New York and Florida each

have a substantial nexus, we now reach the sec-

ond prong of Complete Auto’s test. To determine

whether a tax is fairly and properly apportioned,

the tax must be both “internally consistent” and

“externally consistent”. Goldberg v. Sweet, 488

U.S. 252, at 261 (1989); Container Corp. v.

Franchise Tax Board, 463 U.S. 159, at 169

(1983). Internal consistency is preserved when

the imposit:on of a tax identical to the one in

question by every other State would add no bur-

den to interstate commerce that intrastate com-

merce would not also bear. This test asks nothing

about the degree of economic reality reflected by

the tax, but simply looks to the structure of the

tax at issue to see whether its identical application

by another State in the Union would place inter-

state commerce at a disadvantage as compared

App. 52

with intrastate commerce. A failure of internal

consistency shows as a matter of law that a State

is attempting to take more than its fair share of

taxes. If every State were to impose a tax identi-

cal to New York’s, that is, a sales tax calculated

upon the payments accruing under an entire

lease term, every lease would be subject to more

than one State’s tax for the entire lease term.

Therefore, the tax acceleration clause violates

the principle of internal consistency. External

consistency, on the other hand, looks to the eco-

nomic justification for the State’s claim upon the

value taxed, to ascertain whether a State’s tax

reaches beyond that portion of value that it fairly

attributable to economic activity within the tax-

ing State. Since a use tax is generally levied to

compensate the taxing State for it’s incapacity to

reach the corresponding sale, it is commonly

paired with a sales tax, being applicable only

when no sales tax has been paid or subject to a

credit for any such tax paid. Since any use tax

would have to comply with Commerce Clause re-

quirements, the tax scheme could not apply dif-

ferently to goods and services purchased out of

state from those purchased domestically. It would

not apply when another State’s sales tax had

previously been paid or would apply subject to a

credit for such payment. Oklahoma Tax Com-

mission v. Jefferson Lines, 514 U.S. 175

(1995). Indeed, the District of Columbia and forty

four of the forty five States that impose sales and

use taxes permit such a credit or exemption for

similar taxes paid to other States. See 2 Heller-

stein & Hellerstein 718.08, p. 18.48; 1 All States

Tax Guide 1256 (1994). As one state court sum-

marized the provisions in force:

App. 53

“These credit provisions create a national

system under which the first state of pur-

chase or use imposes the tax. Thereafter, no-

other state taxes the transaction unless

there has been no prior tax imposed . .. or if

the tax rate of the prior taxing state is less,

in which case the subsequent taxing state

imposes a tax measured only by the differ-

ential rate.” KSS Transportation Corp. v.

Baldwin, 9 N.J. Tax 273, 285 (1987).

Turning to the third prong of the Complete Auto

test, a State may not “impose a tax which dis-

criminates against interstate commerce by pro-

viding a direct commercial advantage to local

business”. A sales tax imposed by a State which

is levied in addition to a sales tax already im-

posed by another State (without credit for the

sales tax previously imposed by the first State)

clearly discriminates against interstate com-

merce by providing a direct commercial advan-

tage to local business in the second State since

the only wav to avoid imposition of multiple sales

taxes would be to purchase (or lease) the item in

the second State in the first instance. The fourth

prong of the Complete Auto test demands a fair

relation between a tax and the benefits conferred

upon the taxpayer by the State; that the measure

of the tax be reasonably related to the taxpayer’s

presence or activities in the State. One could eas-

ily argue that New York in seeking to impose it’s

sales tax upon the lease payments accruing dur-

ing an entire lease term regardless of whether or

not (or to what extent) the property is located in

the State for the entire lease term unfairly over-

reaches. Based upon the foregoing, it is clear that

the Commerce Clause of the United States Con-

stitution and prevailing United States Supreme

App. 54

Court precedents protect a taxpayer from being

subjected to the same tax in multiple States

unless credit is given for the tax previously paid

in the first State.

It is a fundamental maxim of statutory construc-

tion that a statute is to be construed in a way

that would save it’s constitutionality. In fact,

most statutes incorporate within their frame-

work a so-called “savings clause” rescuing the

balance of a statute from a declaration of uncon-

stitutionality if one or more clauses or parts are

invalidated. Dade County v. Wiseheart, F'.

App., 198 So.2d. 94, 97. Since an adoption of the

construction of the statute proffered by plaintiff,

i.e. that the defendant is subject to Florida Sales

Tax without regard to or credit for the amount of

Sales Tax previously paid in New York, would re-

sult in a declaration of unconstitutionality, the

statute must be construed in a way which would

save it’s constitutiunality, i.e. to provide the de-

fendant with a credit for taxes previously paid

based upon the same transaction in another ju-

risdiction. It is for this reason that the Revenue

Opinion relied upon and cited by plaintiff is con-

stitutionally flawed. It should also be noted that

the Revenue Opinion has no binding effect upon

this Court since it is neither a judicial pro-

nouncement nor the product of an adversarial

process but merely the clearly biased, self-

serving opinion of an agency construing a statu-

tory ambiguity in a way that serves it’s own in-

terest in maximizing tax revenues. Regardless of

whether one agrees or disagrees with the result

of the Revenue Opinion, the fact that a Revenue

Opinion had to be sought on the issue at all ar-

gues well for the proposition that statute is in-

herently ambiguous and not as “clear cut” and

App. 55

unambiguous as either the plaintiff or the defen-

dant urge. It is also interesting to note that the

Revenue Opinion was not rendered until May 15,

1998, well efter the conclusion of the events at

issue in this lawsuit. Therefore, it is impossible

for the plairtiff to claim reliance upon the Reve-

nue Opinion in it’s declaration of default against

the defendant. Equally interesting is the fact

that the Revenue Opinion does not address the

entitlement of the person seeking the opinion to

a refund of the unearned potion of the New York

Sales Tax. Moreover, the case at bar is distin-

guishable from the case described in the Revenue

Opinion in that the person seeking the Revenue

Opinion paid the New York sales tax out of

pocket whereas in the case at bar, the New York

sales tax wes advanced by the plaintiff to be re-

paid by defendant in equal monthly installments,

which installments were included as a compo-

nent of the monthly lease payments, resulting in |

the imposition of Florida sales tax not only upon

the base lezse payment but also upon the New

York sales tax included in the monthly payment

amount thereby “taxing the tax”.

Attached hereto as Exhibit “B” is a true and com-

plete copy cf the “Lease Calculations” prepared

by the plaintiff which was produced in response

to the Defendant's First Request for the Produc-

tion of Documents served herein. As the Court

can see, the “Base Rent” is $651.52. However, the

Base Monthly Payment under the Lease, at-

tached to the plaintiff's moving papers as Ex-

hibit “A”, is $711.20. The $59.68 difference is the

New York Sales Tax (together with the Money

Factor applicable thereto). In other words, the

New York sales tax is already included in the

Monthly Lease Payment reserved under the

App. 56

Lease. When the defendant relocated to Florida

in June, 1996, the plaintiff began charging the

defendant Florida Sales Tax not only upon the

$651.52 “Base Rent” amount but also upon the

$59.68 New York Sales Tax also included as part

of the $711.20 “Base Monthly Payment” reserved

in the Lease thereby “taxing the tax”. One need

not be a multi-state tax law expert or a constitu-

tional law scholar to know that there is some-

thing very wrong with this. While the plaintiff

may be able to possibly justify it’s attempt to col-

lect Florida Sales Tax based upon the $651.52

“Base Rent” amount, it’s attempt to collect Flor-

ida Sales Tax based upon the $59.68 New York

Sales Tax is absolutely indefensible and war-

rants no further discussion.

Perhaps understandably, the plaintiff also con-

spicuously neglected to bring to the attention of

this Honorable Court the fact that the plaintiff is

the subject of an active investigation undertaken

by the Florida Department of Revenue specifi-

cally concerning it’s “double billing of Florida

sales and use tax to its lease customers who relo-

cate to Florida from other states”. In support of

the foregoing, attached hereto as Exhibit “C” is a

letter dated April 18, 2000 from the Florida De-

partment of Revenue confirming the aforesaid.

. While the plaintiff argues that the lease pay-

ments are subject to Florida Sales Tax for the pe-

riod of time during which the leased vehicle was

located in Florida, it conveniently avoids any dis-

cussion of the efforts it might have undertaken to

obtain a refund from the York State Department

of Taxation and Finance of the unearned portion

of the New York Sales Tax previously paid. The

discovery materials adduced by the plaintiff in

response to the Defendant’s First Request for

App. 57

Production of Documents demonstrate that the

plaintiff made absolutely no effort whatsoever to

obtain such a refund despite the fact that New

York has established systems and procedures for

Applications for Credits and Refunds of Sales or

Use Tax. In support of the foregoing, attached

hereto as Exhibit “D” is an Application for Credit

or Refund of Sales of Use Tax, published by the

New York State Department of Taxation and

Finance. As an aside, because, as far as New

York State is concerned, the defendant was nei-

ther the taxoayer nor the title holder of the vehi-

cle, the defendant had no standing to make such

an application for refund. In addition, New York

Courts, recognizing that the tax acceleration fea-

ture inherent in the New York Statute is a fic-

tion, have been very sympathetic to claimants

seeking refunds for “unearned taxes”. Attached

hereto as Exhibit “E” is a State of New York, Di-

vision of Tax Appeals case entitled In the Mat-

ter of the Petition of Jennier A. Miehle for a

Revision of a Determination or for a Refund

of Sales and Use Taxes under Article 28 and

29 of the Tax Law for the Period September

1, 1994 through November 30, 1994 (DTA No.

816201). The Court’s attention is specifically di-

rected to Paragraph “G” thereof which provides

in pertinent part as follows:

“Prior to the enactment of Tax Law

$1111 4A) [the tax acceleration clause] in

1990, sales tax was paid on lease payments

as made. If a lease payment was not made,

sales tax was not collected. Allowing a re-

fund of sales tax that will not, if fact, be

made is in harmony with the statutory lan-

guage at issue while also avoiding an unrea-

sonable and unfair result (see, Le

App. 58

Drugstore Etats Unis v. New York State

Board of Pharmacy, 33 NY2d. 298, 352

NYS 1888; McKinney’s Cons Laws of NY,

Book 1, Statutes §143; 56 NY Jur, Statutes

§211. Moreover, deeming facts is a legal fic-

tion which “should be sparing employed” (In

Re Morris Estate, 175 Misc. 773, 25

NYS2d 48, affd 261 App Div 950, 27 NYS2d

188, affd 287 NY 624). The addition of sub-

division (i) to Tax Law §1111 in 1990, which

deemed all car lease payments to have been

paid as of the date of first payment under

the car lease, was a fiction of law resorted to

by the legislature solely to accelerate the

payment of sales tax and should not be in-

terpreted as transforming something unreal

into real so as to bar an appropriate refund

of sales tax...”

Based on the foregoing, there is ample reason to

believe that if the plaintiff bothered to apply for

a refund of the unearned sales tax from New

York, it would have been successful in it’s appli-

cation. While there is admittedly nothing in the

lease that affirmatively requires the plaintiff to

make such a refund application, it is respectfully

submitted that the implied covenants of good

faith and fair dealing inherent in all contracts

dictate, at a minimum, that the plaintiff at least

make some token effort. Moreover, to the extent

that it can be said that the plaintiff is a fiduciary

with respect to the sales taxes collected from the

defendant and remitted to New York, a fiduciary

duty on the part of the plaintiff arises thereby

“raising the bar” on the amount of effort required

to be expended by the plaintiff in pursuing a re-

fund application. By preferring it’s own economic

interests to those of the defendant in not initiating

13.

App. 59

a refund application, the plaintiff breached

whatever fiduciary duty it might be said to owe

to the defendant.

While the statutory and constitutional issues

presented herein make for interesting legal dis-

cussion, the Court does not have to reach any of

the statutory or constitutional issues in order to

determine this case. That is because the contract

between the parties — in this case, the Lease — is

controlling. Although the defendant firmly be-

lieves that the terms of the lease unambiguously

support the defendant’s position, to the extent

that the Court finds that there is some ambigu-

ity, in keeping with one of the most fundamental

tenets of contract construction, it should be noted

that since the plaintiff was the draftsman of the

lease, any ambiguities should be construed

against the plaintiff. Turning to the Lease, the

Court’s attention is respectfully directed to Sec-

tion 3 which provides that the Monthly Payment

is $711.20, and further provides that. “(t]hese

amounts make up the Monthly Payment: (a)

Base Monthly Payment — $711.20, (b) Sales/Use/

Lease/Other Tax* ~ N/A”. The asterisk references

a footnote that reads “Estimated based on cur-

rent tax rate”. Request is hereby made that the

Court take judicial notice of the fact that the ab-

breviation “N/A” means “Not Applicable”. Similar

reference is made to Section 1 which provides for

a “First Monthly Payment in Advance” of $711.20

and another N/A designation assoociated with

the Sales Tax line item. Permit me to direct the

Court's attention to Section 6 which provides

that the “Tctal Estimated Fees and Taxes Pay-

able During the Lease” is $2304.25 which is

comprised of “(a) Title, License, and Registration

Fees” in the sum of $149.00 and “(c) Sales/Lease/

App. 60

Use/Other Taxes” in the sum of $2155.25. At-

tached hereto as Composite Exhibit “K” “F” are

true and complete copies of thirteen (13) monthly

lease invoices which were rendered by the plain-

tiff for the period beginning June, 1995 and con-

tinuing through June, 1996 in the amount of

$711.20 each, consistent with the Lease. Permit

me to further direct the Court’s attention to Sec-

tion 26 of the Lease which provides as follows:

“26. LICENSE, REGISTRATION, TAXES

AND INSPECTION. You [referring to De-

fendant] agree to pay for titling, registration

and licensing and for all inspections of the

Vehicle required by any government author-

ity during the term of this Lease. You will

also pay all excise, use, personal property,

gross receipts and other taxes incurred dur-

ing the term of this Lease with respect to

the use and operation of the Vehicle except

those levied upon our net income. The taxes

_you must pay will be included in the Amount

Due When the Lease is Signed (see Para-

graph 1), or your Monthly Payment (see

Paragraph 3) or separately billed to you by

Lessor. Lessor may change your Monthly

Payment for increases or decreases in

taxes [emphasis supplied].”

The only conclusion which can be drawn from the

foregoing is that the $711.20 Monthly Payment

reserved in the Lease was intended to be an all-

inclusive amount. It should be noted that al-

though the term “sales tax” is specifically utilized

in Sections 1, 3 and 4 of the Lease, it is notably

absent in Section 26. Applying the legal maxim of

inclusio unius est exclusio alterius (inclusion of

one excludes the other) which means that if you

specify something but not everything of the same

App. 61

category, the reader may infer that unspecified

terms have been deliberately omitted, to the case

at bar leads to the conclusion that the term

“sales tax” was deliberately omitted from Section

26. Moreover, sales tax would not fall under the

penumbra of “other taxes incurred during the

term of this Lease with respect to the use and

operation of the Vehicle except those levied upon

our net income” since a sales tax obligation does

not arise by virtue of the use or operation of the

vehicle, but is instead the result of a sale or lease

of the vehicle. However, if one were to adopt the

position thet sales tax is included within the

scope of Article 26, the defendant would be enti-

tled to a credit against the Monthly Payment by

virtue of the fact that the change in the sales tax

rate from the 8.5% rate charged in Nassau

County, New York, to the 6% rate charged in

Palm Beach County, Florida, represents a de-

crease, and Article 26 requires that the “Lessor

may change the Monthly Payment for increases

or decreases in taxes.”

. As recited in Section 1(d) of the Lease, the plain-

tiff acknowledged receipt of a $750 security de-

posit that was paid by the defendant when the

Lease was signed. As will be shown by_the chart

below, at the time that the plaintiff repossessed

the Vehicle, the plaintiff had only $505.68 in pos-

sible economic loss, which loss was adequately

protected by the $750.00 security deposit. As evi-

denced by the affidavit of Chris Slader sworn to

the llth day of May, 2000, submitted by the

plaintiff in support of it’s motion, and the accom-

panying exhibit, the plaintiff only remitted sales

tax to Florida based upon the actual amount re-

ceived by the piaintiff from the defendant. For

example, ir October, 1997, when the defendant,

App. 62

having discovered the double billing of sales tax,

took an offset against his Monthly Payment for

the aggregate of the Florida Sales Tax previously

paid in error for the previous fourteen (14)

months as well as the current month, remitting

to the plaintiff the net sum of $68.15, the plain-

tiff treated this payment as a gross payment, in-

clusive of Florida Sales Tax, remitting $3.85 of

this amount to the Florida, and retaining the

$64.30 balance for itself.

The following table sets forth the shortfall/surplus

amounts relative to the $651.52 Base Rent reflected on the

Lease Calculations (Ex. “B”) for the period in question and

reflects the plaintiff's economic loss:

Month

Amount

Paid by

Defendant

Amount

Retained

by Plaintiff

Shortfall/Surplus

Relative to

Base Rent

October, 1997

$68.15

$64.30

$583.37

$646.90

$670.95

$694.98

$670.94

$2748.07

$4.62

-$19.43

-$43.46

-$19.42

$505.68

ovember, 1997)

December, 1997,

January, 1998

February, 1998

TOTAL

$711.20

$2912.95

Regardless of all of the other issues and defenses

presented herein, because the $750.00 security

deposit more than adequately protected the

plaintiff against the economic loss sustained by

it, the plaintiff’s repossession and sale of the Ve-

hicle was overreaching and wrongful.

App. 63

15. Based on the foregoing, it is respectfully re-

quested that: (i) the Plaintiff's Motion for Sum-

mary Judgment on Defendant's Counterclaim be

denied in it’s entirety; and (ii) the Defendant's

Cross-Motioa for Summary Judgment dismissing

the Complaint be granted in all respects, to-

gether with such other, further and different re-

lief that this Court may deem just proper and

equitable.

FURTHER AFFIANT SAYETH NAUGHT.

/s/ Richard D. Cohen

Richard D. Cohen

STATE OF FLORIDA)

COUNTY OF PALM BEACH)

The foregoing instrument was acknowledged before

me this 26th day of May, 2000 by Richard D. Cohen, who is

personally known to me and who did take an oath. In the

County of Palm Beach, Florida.

/s/ Sheppard Parr

NOTARY PUBLIC

SHEPPARD PARR

Notary Public - State of Florida

Mv Commission Expires Feb. 9, 2004

Commission # CC909307

App. 64

IN THE COUNTY COURT

IN AND FOR PALM BEACH

COUNTY, FLORIDA

WORLD OMNI CIVIL DIVISION

FINANCIAL CORP., CASE NO. SC 00 124 RD

Plaintiff,

VS.

RICHARD D. COHEN,

Defendant, /

ORDER GRANTING

FINAL SUMMARY JUDGMENT

THIS case came before the court for hearing on

Plaintiff’s Motion For Summary Judgment On Defen-

dant’s Counterclaim. Counsel for Plaintiff/Counter Defen-

dant, World Omni Financial Corp. (“World Omni”), and

defendant/counter plaintiff, Richard Cohen (“Cohen”),

appeared. The court, having considered the pleadings,

affidavits, statutes, administrative codes, and other

documents in the court record, finds as follows:

FACTS

Cohen’s Counterclaim is based upon his allegation

that he made the monthly payments under the terms of

the Closed End Motor Vehicle Lease Agreement For Land

Rover Vehicles (“Lease” Exhibit A, attached to the Com-

plaint) and that World Omni wrongfully repossessed his

vehicle. Count 1, Breach Of The Lease, alleges that Cohen

made all payments under the Lease; Count 2, Breach Of

The Lease, alleges that Cohen was entitled to a tax refund

for a portion of the New York State sales tax that was

included in the monthly payments; Count 3, alleges that

App. 65

World Omni committed liable by notifying third parties of

the default and repossession.

There is no genuine issue as to any material fact. It is

uncontradicted that Cohen failed to pay the entire

monthly lease payments when World Omni increased the

lease payments to include a 6% sales and use tax imposed

by Florida law. World Omni repossessed and sold the

vehicle. Cohen alleges either that he was not required to

pay the Florida sales and use tax on the Lease or that he

was entitled to a refund on a portion of the New York sales

tax which was paid at ~he inception of the lease.

CONCLUSIONS OF LAW

The Lease permits World Omni to change the monthly

payments for increases or decreases in taxes (paragraph

26). The State of Florida required World Omni to collect

the sales and use tax on the leased vehicle when Cohen

moved to Florida. Section 212.06(8a), Fla. Stat., states

“The rental or lease of tangible personal property which is

used or stored in this state shall be taxable without regard

to its prior use or tax paid on purchase outside this state.”;

See also Section 12 A — 1.000 (14), FAC. Payment of the

New York Lease was due at the inception of the lease on

the total amount of the base payments for the entire term

of the lease. State — Reg., NY Tax RPTR (Doc. 11); In the

matter of Petition on of Jennifer Miehle, State of New

York, Division of Tax Appeals, attached to Defendant’s

Cross Motion For Summary Judgment Dismissing The

Complaint. Cohen has presented no authority to support

his claim that he was entitled to a credit for the payment

of the New York sales tax which was paid by World Omni

and then prorated in his monthly payments.

App. 66

Based on the foregoing, it is

ORDERED AND ADJUDGED that plaintiff’s Motion

For Judgment on the Counterclaim is granted.

DONE AND ORDERED in Delray Beach, Palm Beach

County, Florida this 11th day of July, 2000.

/s/ Susan Lubitz

SUSAN LUBITZ

COUNTY COURT JUDGE

Copies furnished:

Michael Chusid, Esq.

7000 West Palmetto Park Road, Ste. 400

Boca Raton, Fl 33433

Richard D. Cohen

21870 Cartagena Drive

Boca Raton, Fl] 33428

App. 67

IN THE COUNTY COURT, IN AND FOR

PALM BEACH COUNTY, FLORIDA

WORLD OMNI FINANCIAL CORP., : Case No.: Case No.

Plaintiff, SC 00-124.RD

vs.

RICHARD D. COHEN,

Defendant

DEFENDANT’S MOTION FOR LEAVE TO SERVE

AND FILE AND AMENDED ANSWER AND

COUNTERCLAIM

Defendant/Counter-Plaintiff, RICHARD D. COHEN

(“COHEN”), pursuant to Florida Rule of Civil Procedure

1.190, submits this mction for leave to serve and file and

Amended Answer anc Counterclaim. In support of it’s

motion, COHEN states as follows:

1. This action was commenced by service of a

summons and complaint on or about January

19, 2000. A true and complete copy of the

summons and complaint is annexed hereto as

Exhibit “A”.

2. The issue was joined by service of an Answer

and Counterclaim, a true and complete copy

of which is annexed hereto as Exhibit “B”, on

February 2, 2000.

3. At the time of the service and filing of the

original Answer and Counterclaim, Cohen

overlooked various affirmative defenses and

counterclaims. for which leave is herein

sought for inclusion in the Amended Answer

and Counterclaim, a true and complete copy

of which is annexed hereto as Exhibit “C”.

App. 68

4. No obvious prejudice would accrue to World

Omni by permitting the amendment for

which leave is herein sought since no discov-

ery has been conducted by the World Omni.

5. The differences between the original Answer

and Counterclaim, on the one hand, and the

proposed Amended Answer and Counter-

claim, on the other, are as follows:

i) Paragraph 28 was changed to reflect the

fact that the correct rate of Sales Tax in

Palm Beach County, Florida is 6% (not

6.5% as stated in the original Answer).

ii) The addition of a “Fourth Affirmative

Defense — Unconstitutionality” (Para.

45-46.).

iii) The addition of a “Fifth Affirmative De-

fense ~ No Economic Loss” (Para. 47-48).

iv) The addition of a “Sixth Affirmative De-

fense — Bad Faith Repossession” (Para.

49-53).

v) Paragraph 59 was similarly changed to

reflect the correct rate of sales tax in

Palm Beach County, Florida.

vi) The addition of an additional Counter-

claim denominated as “Count IV -—

Breach of Fiduciary Duty” (Para. 65-67).

vii) The addition of an additional Counter-

claim denominated as “Count V -

Breach of Implied Covenants of Good

Faith and Fair Dealing” (Para. 68-70).

I HEREBY CERTIFY that a true and complete copy of

the forgoing has been furnished by U.S. Mail on this 25th

~ App. 69

day of January, 2001 to: Ritter, Chusid, Binova & Cohen,

LLP, 7000 West Palme:to Park Rd., Suite 400, Boca Raton,

Florida 33433.

RICHARD D. COHEN

Defendant Pro Se

21870 Cartagena Drive

Boca Raton, Florida 33428

(561) 883-6227

By: /s/ Richard D. Cohen

Richard D. Cohen

App. 70

IN THE COUNTY COURT, IN AND FOR

PALM BEACH COUNTY, FLORIDA

WORLD OMNI : Case No.: Case No.

FINANCIAL CORP., : $C 00-124.RD

* ANSWER, AFFIRMATIVE

‘ DEFENSES AND COUNTER-

RICHARD D. COHEN, * CLAIM AND DEMAND FOR

* JURY TRIAL

vs.

Defendant

Defendant Richard D. Cohen (“Cohen”), appearing pro se,

hereby answers the Complaint and says that each and

every allegation not specifically admitted below is hereby

denied and as to each number paragraph states:

1. Admitted for jurisdictional purposes only.

2. Cohen is without sufficient knowledge to

admit or deny the allegations in this para-

graph and those allegations are therefore

denied. Cohen demands strict proof thereof.

Cohen is without sufficient knowledge to

admit or deny the allegations in this para-

graph and those allegations are therefore

denied. Cohen demands strict proof thereof.

Admitted.

Deny.

Cohen is without sufficient knowledge to

admit or deny the allegations in this para-

graph and those allegations are therefore

denied. Cohen demands strict proof thereof.

Admitted.

AFFIRMATIVE DEFENSES AND COUNTERCLAIMS

Counter-Plaintiff Richard D. Cohen (“Cohen”) file —

their Counterclaim against Plaintiff/Counter-Defendant

World Omni Financia: Corp. (World Omni”) and allege as

follows:

12.

13.

14.

16.

17.

App. 71

Deny.

This is an action for damages in excess of

$15,000 exclusive of interest, costs and at-

torneys fees.

This Court has subject matter jurisdiction

over this case pursuant to Article V, Section

5 of the Florida Constitution and pursuant

to Florida common law.

At all material times World Omni was and is

qualified to do business in Palm Beach

County, Florida.

. Venue is appropriate in Palm Beach County,

Florida because the causes of action accrued

in Palm Beach County.

This Court has personal jurisdiction over

World Omni because they invoked the

Court's jurisdiction by bringing the Com-

plaint.

All conditions precedent to the filing of these

counterclaims have occurred or have been

waived.

App. 72

Factual Background

18. On May 13, 1995, Cohen, as Lessee, entered

into a Closed End Motor Vehicle Lease

Agreement for Land Rover Vehicles (the

“Lease”) with Lazarus Freres & Co. d/b/a

Range Rover (“Lazarus”), as Lessor, covering a

1995 Land Rover Discovery bearing Vehicle

Identification Number SALJY124SA151437

for a term of thrity six (36) months com-

mencing on May 13, 1995 and continuing

through May 14, 1998.

. Concurrently therewith, Lazarus assigned

all of it’s right, title and interest in the

Lease to World Omni.

. Upon information and belief, World Omni

thereafter further assigned all of it’s right,

title and interest in the Lease to Bank of

America, Illinois, as Collateral Agent, pur-

suant to a Pledge and Security Agreement.

. The Lee-e was entered into in Glen Head,

New York.

. Paragraph 30 of the Lease provides that

“(t]he law of the place where you signed this

Lease will govern this Lease”.

. Sales tax computed in accordance with the

then prevailing sales tax rate of 8.5% was

incorporated into the monthly lease pay-

ments of $711.20 required under the Lease.

This is evidenced by the fact that the term

“N/A” appears as the entry for “Sales/Use/

Lease/Other Tax” in Paragraph 3b of the

Lease, and is further evidenced by the fact

that for the period beginning in June, 1995

and for each month thereafter through and

App. 73

including June, 1996, World Omni invoiced

Cohen for $711.20 with no provision for

sales tax.

24. In June, 1996, Cohen moved from New York

25.

26.

to Florida and notified World Omni of his

change of address.

Beginning with the July, 1996 lease invoice,

World Omni began invoicing Cohen for

$753.87, which consisted of the $711.20

monthly lease payment reserved in the Lease

(which already included the New York sales

tax as aforesaid) plus $42.67 in Sales Uses

Tax, presumably computed at the applicable

Florida rate.

Cohen did not notice the double billing of

sales tax until October, 1997 and erroneously

paid duplicate sales tax for the fifteen (15:

month period commencing July, 1996 and

continuing through and including September.

1997, resulting in an aggregate of $643.05 in

mistaken sales tax payments to World Omni.

In October, 1997, Cohen took a setoff and de-

duction in the sum of $643.05 against the

$711.20 monthly lease payment, and remit-

ted to World Omni his check for the $68.15

difference along with his cover letter dated

October 6, 1997 explaining the basis for the

setoff.

World Omni wrongfully refused to accept the

setoff and wrongfully continued to invoice

Cohen for the setoff amount, late charges on

the setoff amount, Florida sales tax, and late

charges on the unpaid Florida sales tax for

the balance o* the lease term.

App. 74

28. In an attempt to resolve the matter, Cohen

29.

30.

initiated several telephone calls to World

Omni, most notably one to a Mr. Schmidt,

wherein Cohen explained that he would be

only too happy to pay Florida Sales Tax at a

rate of 6.0% provided that they credit the

monthly lease payment for the 8.5% New

York Sales Tax already included in the

$711.20 monthly payment. Schmidt re-

sponded by saying that New York will not

refund to World Omni the sales tax previ-

ously paid to them. Cohen replied by stating

that (1) he had no standing to apply to New

York for a refund since he was neither the

titleholder nor the registrant of the vehicle

nor the remitter of the sales tax as far as

New York was concerned; (2) to the extent

that New York was unwilling to refund the

unearned portion of the sales tax, this was

World Omni’s problem and responsibility;

and (3) the terms of the Lea: and the prior

course of dealing and course of performance

between the parties uneqv vocally estab-

lished that 8.5% New York sales tax was al-

ready incorporated in the $711.20 monthly

payment reserved in the Lease.

Cohen fully and timely paid the $711.20

monthly lease payment reserved under the

Lease each and every month throughout the

lease term through and including the Feb-

ruary, 1998 payment (which covered the

charges accruing through March, 13, 1998).

In February, 1998, the vehicle which was the

subject of the Lease was “rear-ended” by an-

other car, damaging the rear bumper of the

leased vehicle. The driver of the other car,

not wanting to put the matter through her

App. 75

insurance company, offered to pay for the

necessary repairs to the leased vehicle and

called in her credit card number to North

Dade Range Rover where the vehicle was

taken for repair, and authorized them to

charge the repairs to her credit card.

. On or about February 27, 1998, netwith-

standing the unassailable fact that Cohen

fully and timely paid and performed all of

his obligations under the Lease in strict ac-

cordance with the terms of the Lease, World

Omni purported to repossess the vehicle

from the premises of North Dade Ranger

Rover, before North Dade had the opportu-

nity to perform the repairs that had been

authorized. On March 2, 1998, World Omni

sent Cohen a Notice of Repossession.

. On March 13, 1998, World Omni sent Cohen

a monthly lease invoice thereby superceding

and negating the previous Notice of Repos-

session.

Notwithstanding the foregoing, Cohen was

notified by letters from World Omni dated

May 28, 1998 that the leased vehicle was

sold, and claiming a deficiency balance of

$11,837.34.

. World Omni “alsely and maliciously reported

and continues to report to various credit re-

porting bureaus, including but not limited to

Equifax, TransUnion and Transamerica,

that Cohen was deliquent in payment of his

obligations under the Lease (when in fact he

was not) and that the vehicle had been re-

possessed (even though such repossession

was wrongful and in blatant violation of the

App. 76

terms, of the Lease), creating the false im-

pression that Cohen is a deadbeat.

. Cohen relies upon the availability of credit

for the conduct of his business and personal

affairs.

. Cohen’s prospective creditors rely upon

statements made by Cohen’s past and exist-

ing creditors contained in credit reports is-

sued by the various credit bureaus in

making their decisions as to whether or not

(or to what extent) to grant credit to Cohen

and on what terms.

. World Omni’s false and defamatory state-

ments to the credit reporting agencies have

severely impaired and at times completely

precluded Cohen’s ability to obtain credit

and/or have resulted in Cohen not being able

to obtain credit on the most competitive

terms which would have been otherwise

available to Cohen absent World Omni's

false and defamatory statements.

. As a direct result of the foregoing, Cohen

has incurred credit costs, in the form of

higher interest rates, higher down payment

requirements, higher origination fees, addi-

tional collateral requirements, etc., that

would not have had to have been incurred

absent World Omni’s false and defamatory

statements. In addition, Cohen has lost and

forfeited valuable business opportunities be-

cause of his inability to obtain credit on com-

petitive terms which would otherwise been

available to him absent World Omnis false

and defamatory statements.

39.

40.

App. 77

First Affirmative Defense - Estoppel

Cohen realleges paragraphs 18-38 as if fully

set forth herein.

As a result of World Omni's failure and/or

refusal to permit North Dade Ranger “over

to effectuate the repairs to the vehicle that

were author.zed, World Omni should be es-

topped from recovering damages that could

and would have been mitigated as a result of

such repairs.

Second Affirmative Defense - Lack of Standing

41.

42.

43.

44.

Cohen realieges paragraphs 18-38 as if fully

set forth herein.

As a result of World Omnis assignment of

the Lease, to Bank of America, Illinois,

World Omni lacks the requisite standing to

prosecute th:s action.

Third Affirmative Defense - Wrongful

Repossession and Sale.

Cohen realleges paragraphs 18-38 as if fully

set forth herein.

Because Cohen was not in default of the

payment or performance of his obligations

under the Lease, there was no basis for

World Omni's repossession and sale of the

vehicle and World Omni should be barred

from seeking the recovery of any deficiency

occasioned in connection with such sale.

App. 78

Fourth Affirmative Defense - Unconstitutionality

45. Cohen realleges paragraphs 18-38 as if fully

set forth herein.

46. World Omni’s attempt to collect Florida Sales

Tax on lease payments which have already

been subjected to Sales Tax by the State of

New York violates limitations on State taxa-

tion imposed by the Commerce Clause of the

United States Constitution, as interpreted by

the United States Supreme Court. |

Fifth Affirmative Defense - No Economic Loss

47. Cohen realleges paragraphs 18-38 as if fully

set forth herein.

48. World Omni incurred no monetary damages

as a result of the Cohen’s failure and refusal

to pay the Florida Sales Tax since it only

remitted to Florida, Sales tax based upon

the actual amount received from the defen-

dant.

Sixth Affirmative Defense - Bad Faith Repossession

49. Cohen realleges paragraphs 18-38 as if fully

set forth herein.

50. Because the value of the vehicle at the time

of sale at auction (as evidenced by the auc-

tion sales price) was substantially less than

the Estimated Residual Value of the vehicle

set forth in the Lease, World Omni was im-

properly motivated to repossess the vehicle

so that it couid charge Cohen with the defi-

ciency between the sales price and Esti-

mated Residual Value.

App. 79

. Upon information and belief, the nature and

amount of the default alleged by World

Omni prior to repossession did not rise to

the level necesaary to warrant a reposses-

sion under World Omni’s normal, standard,

and customary operating practices.

. There was no legitimate risk to World

Omnis collateral, viz, the vehicle, at the

time of repossession.

. Asa result of the aforesaid, the repossession

of the vehicle was undertaken by World

Omni in bad faith and with an improper mo-

tive and purpose.

Count 1 - Breach of Contract

. Cohen realleges paragraphs 18-38 as if fully

set forth herein.

. World Omni breached the Lease by wrong-

fully repossessing the vehicle on February

27, 1998 even though the Lease was fully

paid in accordance with the terms thereof

through March 13, 1998.

As a result of World Omni's breach, Cohen

was deprived of use and possession of the

vehicle for fifteen (15) days for which he had

already paid and is entitled to a refund of

$355.60 representing the value of the use of

which he was deprived. In addition, Cohen

is also entitled to a refund of the $750 secu-

rity deposit that was paid by him upon exe-

cution of the Lease.

App. 80

WHEREFORE, Cohen demands a judgment in his favor

against World Omni for compensatory damages, interest,

and costs.

Count II - Breach of Contract

57. Cohen realles paragraphs 18-38 as though

fully set forth herein.

58. World Omni further breached the Lease by

failing to credit Cohen for the unearned por-

tion of the New York Sales Tax included in

the monthly lease payments for the period

from July, 1996 through February, 1998.

59. There is a 2% difference between the appli-

cable 8.5% New York Sales Tax and the ap-

plicable 6.0% Florida Sales Tax.

60. As a result of the foregoing, Cohen was over-

charged and therefore overpaid approxi-

mately $17.78 (2.5% of $711.20) each month

for a period of twenty (20) months beginning

in July, 1996 and continuing through Febru-

ary, 1998, resulting in an aggregate of

$355.60 in overcharges/overpayments.

WHEREFORE, Cohen demands a judgment in his favor

against World Omni for compensatory damages, interest

and costs.

Count III - Libel

61. Cohen realleges paragraphs 18-38 as though

fully set forth herein.

62. World Omni’s statements about Cohen to the

credit bureaus, although false, accuse Cohen

of immoral, unprofessional and unethical

App. 81

conduct and of conduct incompatible with the

proper exercise of his business and personal

affairs, and constitute libel per se.

63. As a direct and proximate result of World

Omni’s statements, Cohen’s reputation and

credit has been severely, damaged.

64. World Omni’s conduct as alleged in this

Counterclaim was willful and wanton.

WHEREFORE, Cohen demands judgment in his favor

against World Omni for compensatory damages, punitive

damages, in an amount in excess of $15,000 plus costs of

suit.

Count IV - Breach of Fiduciary Duty

65. Cohen realleges paragraphs 18-38 as though

fully set forth herein.

66. Under governing New York law, World Omni

was a fiduciary for the benefit of Cohen and

owed a fiduciary duty to Cohen with respect

to the collection, administration and pay-

ment of sales taxes accruing under the

Lease.

67. World Omni breached it’s fiduciary duty to

Cohen by neglecting, failing and refusing to

apply for a refund (or credit) of the New

York Sales Tax incorporated into the

Monthly Lease Payments, despite Cohen’s

demands that it do so and notwithstanding

New York case law supporting the mght to a

refund.

WHEREFORE, Cohen demands judgment in his favor

against World Omni for compensatory damages, interest

App. 82

and costs.

Count V - Breach of Implied

Covenants of Good Faith and Fair Dealing

68.

69.

70.

WHEREFORE, Cohen demands judgment in his favor

against World Omni for compensatory damages, interest

Cohen realleges paragraphs 18-38 as though

fully set forth herein.

Under governing New York law, there is a

duty of good faith and fair dealing implied in

every contract entered into in the State of

New York.

World Omni breached the implied covenants

of good faith and fair dealing by neglecting,

failing, and refusing to apply for a refund (or

credit) of the New York Sales Tax incorpo-

rated in the Monthly Lease Payments, de-

spite Cohen’s demands that it do so and

notwithstanding New York case law support-

ing the right to a refund.

and costs.

Cohen pursuant to Florida Rule of Civil Procedure

1.430 hereby demands a jury tria) on all issues so triable

DEMAND FOR JURY TRIAL

in the above captioned matter.

App. 83

CERTIFICATE OF SERVICE

1 HEREBY CERTIFY that a true and correct copy of

the foregoing Anwer, Affirmative Defenses, Counterclaim

and Demand for Jury Trial has been furnished via U.S.

Mail to: Ritter, Chusid, Binova & Cohen, 7000 West

Palmetto Park Rd., Suite 400, Boca Raton, Florida 33433

onthe day of ___, 2001.

RICHARD D. COHEN

Defendant Pro Se

21870 Cartagena Drive

Boca Raton, Florida 33428

(561) 883-6227

By:

Richard D. Cohen

App. 84

IN THE COUNTY COURT

IN AND FOR PALM BEACH

COUNTY, FLORIDA

CIVIL DIVISION

CASE NO. SC 00 124

WORLD OMNI FINANCIAL

CORPORATION,

Plaintiff,

Vs.

RICHARD D. COHEN,

Defendant. /

ORDER

THIS case came before the court on Defendant's

Motion For Leave To Serve And File An Amended Answer

And Counterclaim. The court, having reviewed the court

file, finds that Cohen’s Amended Answer And Counter-

claim attempts to assert claims which have been previ-

ously determined by this court in this case in the Order

Granting Final Summary Judgment and Final Judgment

on Counterclaim issued on July 11, 2000.

Based on the foregoing, it is

ORDERED AND ADJUDGED that Defendant’s

Motion For Leave To Serve And File An Amended Answer

And Counterclaim is denied except that paragraph 28 is

amended by interlineation to substitute 6% for 6-'2% as

the rate of Florida sales tax.

DONE AND ORDERED in Delray Beach, Palm Beach

County, Florida this 26 day of February 2001.

App. 85

/s/ Susan I ubitz

SUSAN LUBITZ COUNTY

COURT JUDGE

Copies furnished:

Michael Chusid, Esquire, 7000 W. Palmetto Park Road,

#400, Boca Raton, FL 33433

Richard D. Cohen, 21870 Cartagena Drive, Boca Raton, FL

33428

App. 86

IN THE COUNTY COURT

IN AND FOR PALM BEACH

COUNTY, FLORIDA

CIVIL DIVISION

CASE NO. SC 00 124

WORLD OMNI FINANCIAL

CORP.,

Plaintiff,

Vs.

RICHARD D. COHEN,

Defendant. /

ORDER ON PLAINTIFF’S MOTION

FOR FINAL SUMMARY JUDGMENT

THIS case came before the court for hearing on

Plaintiffs Motion for Final Summary Judgment. Plaintiffs

counsel and Defendant Richard D. Cohen appeared.

The court, having considered argument, the record,

and previous rulings, it is

ORDERED AND ADJUDGED as follows:

1. Plaintiff's Motion for Final Summary Judgment is

granted on the issue of liability, as the court has previ-

ously ruled that Defendant Richard D. Cohen defaulted on

the loan and the vehicle was repossessed in accordance

with the contract and the laws of New York and Florida.

2. Plaintiff’s Motion for Final Summary Judgment is

denied on the issue of standing and damages, as there are

genuine issues of disputed material facts.

App. 87

DG.-.E AND ORDERED in Delray Beach, Palm Beach

County, Florida this 9 day of April, 2001.

/s/ Susan Lubitz

SUSAN LUBITZ COUNTY

COURT JUDGE

Copies furnished:

Richard D. Cohen 21870 Cartagena Drive Boca Raton, Fl

33428

Mitchel Chusid Ritter Chusid Bivona & Cohen, LLP 7000

West Palmetto Park Road, Ste. 400 Boca Raton, Fl 33433

App. 88

IN THE COUNTY COURT

IN AND FOR PALM BEACH

COUNTY, FLORIDA

CASE NO. SC 00 124.RF

WORLD OMNI FINANCIAL

CORP.,

Plaintiff,

VS.

RICHARD D. COHEN,

Defendant. /

PLAINTIFF’S OPPOSITION TO

DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT DISMISSING THE COMPLAINT

Plaintiff, World Omni Financial Corp. (“World Omni”)

by and through its undersigned attorneys, submits this

Opposition to Defendant, Richard Cohen’s (“Cohen”)

Motion for Summary Judgment Dismissing the Complaint,

and states as follows:

1. Cohen’s Motion for Summary Judgment Dismiss-

ing World Omni’s Complaint (the “Motion”) is Cohen’s

third or fourth attempt at summary judgment and should

be denied in its entirety as the record evidence demon-

strates that World Omni sold the vehicle it repossessed

from Cohen (the “subject vehicle”) in accordance with the

terms of the operative lease agreement. Cohen’s miscon-

strued interpretation of the lease agreement, which he

claims permits him to have the wholesale value of the

subject vehicle determined by “independent appraiser”

more than four (4) years after the vehicle was sold at

auction, is unsupported by the express terms and intent of

the lease agreement and flies in the face of logic. Cohen’s

App. 89

right to request an incependent appraisal of the wholesale

value of the subject vehicle has long since passed. In short,

Cohen waived any right he may have under the lease

agreement to have the vehicle independently appraised by

failing to elect this remedy before the subject vehicle was

repossessed by World Omni and sold at auction.

2. Indeed, Cohen was given reasonable notification

of the sale. He could have exercised his right to have the

vehicle appraised at “hat time. Instead, he did nothing. |

Cohen waited more than four years and two motions for

summary judgment later and now claims that World Omni

is not entitled to a deficiency as the “independent ap-

praisal” that he obtained revealed an appraised value

exceeding the estimated residual value. Indeed, as demon-

strated below: (1) Cohen’s belated attempt to have the

subject vehicle independently appraised is contrary to

existing law and the operative lease agreement; and (2)

Cohen's independent appraiser's estimated wholesale

value of the subject vehicle at the time of the auction

(April 8, 1998) is specious as: (a) the independent ap-

praiser never inspected the vehicle; and (b) the appraiser

was i ver provided with documents relating to the “true”

value of the subject vehicle, including, but not limited to,

repair records from North Dade Land Rover which re-

vealed the subject vehicle was involved in an accident in

February, 1998, resulting in physical damage of $785.55

and mechanical damage in the amount of $2,557.71. In

fact, World Omni previously filed a Motion to Strike

Cohen’s Pleadings and a Motion for Entry of Default

Judgment based on Cohen's wilful failure to produce the

mechanical damage estimate from Land Rover for the

subject vehicle. (Annexed as Composite Exhibit “C” to that

motion is a complete copy of Land Rover’s response to

App. 90

subpoena served by World Omni containing the estimates

for mechanical and body damage). Irvine Fraser, Cohen’s

“independent appraiser” was not provided with any of the

repair history records for the subject vehicle before coming

to the conclusion that the wholesale value of the subject

vehicle which “could have been realized at sale in April,

1998 is $21,525.00.” The only documents relied on by Mr.

Fraser were vehicle inspection reports dated February 27,

1998, from National Research and Recovery and Greater

Orlando dated March 16, 1998 and a May, 1995 bill of sale

for the subject vehicle. /t is undisputed that Mr. Fraser

was not provided with any other documentation, including

the repair records and/or physical and mechanical dam-

age estimates for the subject vehicle. (See a copy of Mr.

Fraser’s May 1, 2002 report annexed as Exhibit “A” to the

Motion.) For these reasons alone, there are genuine issues

of material fact as to: (1) the reasonable wholesale value of

the vehicle; and (2) Mr. Fraser’s appraised wholesale value

of the subject vehicle. Therefore, the Motion should be

denied in its entirety.

3. As noted above, this is the third or fourth motion

filed by Cohen for summary judgment and/or seeking

dismissal of the Complaint. Therefore, the procedural

history of this litigation is significant. On May 13, 1995,

Cohen leased the subject vehicle from Lazarus Freres &

Co. (the “dealer”) for a period of 36 months. The lease was

assigned by dealer to World Omni. Cohen defaulted under

the lease by failing to make full monthly lease payments

to World Omni beginning January 13, 1998. Cohen was

sent a Notice of Repossession and Right to Redeem the

subject vehicle by World Omni on March 2, 1998, a copy of

which is attached as Exhibit “A”, advising him that the

subject vehicle would not be sold at auction until the

App. 91

passage of 10 days at the earliest and that he had the

right to redeem the vehicle. Cohen did not advise World

Omni not to sell the vehicle and/or that he elected to have

the wholesale value of the subject vehicle determined by

qualified appraisal obtained by him pursuant to Para-

graph 11 of the Lease Agreement. (A copy of the Lease

Agreement is annexed as Exhibit “B”.) Cohen did nothing.

The subject vehicle was then sold at auction by World

Omni in a commercially reasonable manner on April 10,

1998. After deducting authorized expenses from the sale

proceeds, a deficiency balance in the amount of $11,980.10

resulted. World Omni brought the instant action against

Cohen to recover said deficiency.

4. On April 9, 2302, Judge Lubitz entered an order

granting World Omnis Motion for Final Summary Judg-

ment on the issue of liability and ruling that there was an

issue of fact as to whether World Omni had standing and

damages. World Omni’s Motion for Summary judgment on

Cohen's affirmative defense of lack of standing was

granted by Judge Burton by order dated March 11, 2002.

Thus, the only issue remaining is that of damages.

5. By order dazed June 11, 2000, Judge Lubitz

granted World Omnis Motion for Summary Judgment

dismissing alli of Cohen’s counterclaims.

6. On or about March 26, 2002, Cohen filed a Motion

for Summary Judgment Dismissing World Omnis Com-

plaint alleging that World Omni failed to comply with the

Lease Agreement by selling the subject vehicle at a sal-

vage auction, not at wholesale and/or in a commercially

reasonable manner. By order dated April 19, 2002, Judge

Burton denied Cohen’s Motion for Summary Judgment

dismissing the Complaint.

App. 92

7. Cohen then filed a Motion for a Rehearing as to

Judge Burton’s order denying his Motion for Summary

Judgment Dismissing the Complaint. By order dated April

30, 2002, Judge Burton denied Cohen’s Motion for Rehear-

ing.

8. Then, Cohen filed the instant motion once again

seeking summary judgment dismissing World Omni’s

Complaint. Now, Cohen summarily contends that the

appraisal of the subject vehicle he obtained by Mr. Fraser

on May 1, 2002, more than four years after the vehicle was

repossessed and sold at auction by World Omni, exceeds

the estimated residual value. there is no deficiency, and

thus World Omni's Complaint must be dismissed for its

alleged failure to comply with the Lease Agreement.

9. In spite of Cohen’s contentions, the express

language and clear intent of the Lease Agreement allows

Cohen, to elect, as an alternative, to having the realized

value of the vehicle determined at auction, to determine

the wholesale value of the vehicle by a qualified appraiser

prior to the time the subject vehicle was sold at auction.

The Lease Agreement certainly does not allow Cohen to

have the vehicle appraised, more than four years after he

received the Notice of Repossession and Notice of Sale and

more than two years after this action was commenced, if

Cohen was unhappy with the amount obtained at auction.

To this point, Paragraph 11 of the Lease Agreement

provides as follows:

The “Realized Value” of the Vehicle is the price

we receive at the time of disposition of the Vehi-

cle minus the reasonable costs of preparation and

sale of the Vehicle. For this purpose, we shall sell

the Vehicle at wholesale or otherwise determine

its wholesale value in a commercially reasonable

App. 93

manner. As an alternative you may obtain (at

your expense) from a qualified independent ap-

praiser acceptable to us a written appraisal of

the wholesale value of the Vehicle that could be

realized at value. This appraised value will be fi-

nal and binding on you and us. (Emphasis

added.)

10. Here, as noted above, Cohen was advised by

World Omni, through the Notice of Repossession and Right

to Redeem, that if he did not redeem the vehicle, it would

be sold at auction no earlier than 10 days from the date of

the notice, and that he would be responsible for the defi-

ciency. Cohen failed to advise: (a) World Omni to hold and

not sell the vehicle; and/or (b) that he would like to have

the wholesale value of the vehicle determined by an

appraiser obtained by him. He did nothing. The vehicle

was then sold. Now, four years later, Cohen claims that the

appraisal he recently obtained, two years into this litiga-

tion, should now prevent World Omni from seeking this

deficiency. The plain reading of the operative provision of

the Lease Agreement indicates that the wholesale value

will be determined in a commercially reasonable manner.

As an alternative, Cchen, could have the vehicle “inde-

pendently appraised” to determine “ ... the wholesale

value of the Vehicle tnat could be realized at sale.” (Em-

phasis added.) This provision does not indicate that Cohen

could have the vehicle appraised at any time, even after it

is sold at auction. Rather, it indicates that the independ-

ent appraisal is to determine the wholesale value of the

vehicle that could be realized at sale. The realized value of

the vehicle was determined at the time of sale. If Cohen's

interpretation of this provision is valid, the words “could be”

would be substituted with the word “was.” Could, by defini-

tion, means that the sale had not previously occurred. Thus,

App. 94

the only way to reasonably interpret this provision is that

the election to have the vehicle independently appraised

must occur before the realized value is established at a

commercially reasonable sale. Cohen’s misconstrued

interpretation of this provision defies logic. This would

allow a lessee, such as Cohen, who had his vehicle repos-

sessed, do nothing to prevent the sale after notice, become

unhappy with sale price obtained at auction, then have the

vehicle “independently appraised” four years after the

vehicle was sold and claim that the lessor is not entitled to

a deficiency. In fact, it has been held that “Equity aids the

vigilant, not those who slumber on their rights.” See In re

American Body Armor & Equipment, Inc., 17 B.R. 659

(M.D. of Fla. 1994). Here, Cohen received Notice of the

Repossession and intended sale. He had the opportunity to

have the subject vehicle appraised. He did nothing. Equity,

and logic, should prevent him from now claiming a right to

have the vehicle appraised four years post-sale. This

simply is not what was intended by this provision.

11. Moreover, the only documentation provided by

Cohen to Mr. Fraser to perform his “independent ap-

praisa]l” was the vehicle inspection reports and the bill of

sale for the vehicle dated May, 1995. Mr. Fraser acknowl-

edges that he did not observe and/or inspect the subject

vehicle. He limited his appraisal based on the documents

provided to him by Mr. Cohen. Mr. Fraser was not pro-

vided with documents relating to the true condition of the

subject vehicle, including, repair history of the vehicle

reflecting that the vehicle was involved in an automobile

accident in February, 1998, had collision damage and

major mechanical problems, would not start, and had to be

towed by Mr. Cohen to North Dade Land Rover shortly

before it was repossessed. Suffice it to say, without these

App. 95

documents, Mr. Fraser’s “independent appraisal” of the

wholesale value of the subject vehicle is unsupported and

specious.

12. Moreover, Trena Bobo, World Omni’s Manager of

Logistics, testified at deposition on April 3, 2002, that

the wholesale value of a repossessed vehicle is determined

by market conditions of the vehicle at the time of sale

based on the conditicn of the vehicle, as opposed to the

Black Book, NADA Guide, and/or Kelly’s Blue Book, which

are used to evaluate wholesale values of trade-in vehicles

(See a copy of Ms. Bobo’s deposition which was previously

filed in opposition to Cohen’s (First) Motion for Summary

Judgment Dismissing the Complaint).

13. As testified to by Ms. Bobo, the vehicle condition

reports cannot be used to determine the condition of the

subject vehicle as these reports were prepared at different

times and for different purposes. Indeed, the repossession

agent was merely concerned with the high level condition

of the vehicle, i.e. whether the vehicle was driveable

and/or had major collision damage. The person preparing

the report is not concerned with minor damage to the

vehicle. One cannot compare the repossession agent's

report with the aucticn’s report, as Cohen attempts to do,

as the auction is concerned with the potential value of the

vehicle and not the condition of the vehicle at the time it is

repossessed. (See pages 19-28 of the deposition transcript

of Trena Bobo). Thus, Cohen’s and/or Mr. Fraser's reliance

on the vehicle condition reports to determine the condition

of the vehicle and/or its wholesale value at the time of

auction is misplaced and unfounded. Moreover, Cohen

admitted that the subject vehicle had physical and me-

chanical problems in his letter dated August 31, 1998 to

World Omni, a copy of which is annexed as Exhibit C”.

App. 96

Therefore, Mr. Fraser’s appraised wholesale value of the

vehicle at the time of auction is unsupportable. At the very

least, there is a question of fact as to the true value of the

vehicle at the time of auction. Thus, the Motion should be

denied in its entirety.

14. Based on the foregoing, World Omni submits

that there is, at the very least, a question of fact as to the

true wholesale value of the vehicle at the time of auction,

thus precluding summary judgment in favor of Cohen

dismissing the Complaint. Accordingly, Cohen’s motion

should be denied in its entirety.

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy

of the foregoing was served by telecopier and U.S. Mail on

this 12th day of August, 2002 to: Richard D. Cohen, 21870

Cartagena Drive, Boca Raton, Florida 33428 (561/883-6146).

RITTER CHUSID BIVONA

& Cohen, LLP

Attorneys for World Omni Finan-

cial Corp.

7000 West Palmetto Park Road

Suite 305

Boca Raton, Florida 33433

(561) 394-2180 <

(561) 394-2582 — Facsimile

By: /s/ Mitchel Chusid

MITCHEL CHUSID

FLA. BAR NO.: 879282

ALLISON L. KAY

FLA BAR NO.: 858330

App. 97

IN THE COUNTY COURT IN AND FOR

PALM BEACH COUNTY, FLORIDA

WORLD OMNI FINANCIAL ) Case No. MC 00-124-RF

CORP., )

Plaintiff, 2

m , NOTICE OF APPEAL

RICHARD D. COHEN,

Defendant. )

NOTICE IS GIVEN that Richard D. Cohen appeals to

the Circuit Court of the Fifteenth Judicial Circuit in and

for Palm Beach County, Florida, the orders of this court

rendered July 29, 2002 and August 11, 2003. The nature of

the order rendered July 29, 2003 (Exhibit “A”)is a final

judgment after court trial for appellee World OMNI

This text is long and has been trimmed here. Open the source document for the complete record.

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