# Opposition Brief — Cohen v. World Omni Financial Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1079%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2005 - **Citation:** 546 U.S. 933 ## Text 6 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. de v 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 8 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). 9 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 10 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) 1i 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.”). 12 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. 13 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) 14 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. 15 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). 16 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, 17 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]. 18 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 19 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 vs 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. 36 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 t 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 (c) a Disposition Fee of $250, MINUS (d) the “Realized 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; or 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: 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. 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RESERVE INACTIVE Puan : Bocr 4 vast aA A OME PHONE NAME an ae gm ‘ ’ PRESENT NUMBER AND STREET city COUNTY STATE awe LIVED THERE ADORESS YEARS , MONTHS # NEY MO LANDLORD OR MORTGAGE HOLDER NAME — ' MO PAYMENT OR RENT § PREVIOUS +OME NUMBEH an ST 7 ITY county State ae oF g ae coe. mas . } veaee” "SSfrwe THAN 5 Yes oA. v v ha a STREET city TATE BUS PHONE NO | op fo @ NAME BUSINESS ADOACSS NUMBER ANO e s | veut errs | ‘ o aivias ‘ * + od TRADE OR OCCUPATION | GROSS SALARY OF WAGES MAME OF PRE .OUS EMPLOVER AQOAESS ~ 1 $F ARS &S a SE F 4 Alimony, child support, of separate mainienance income heed not be revesied # you do not wish to neve |t considered ss & "as & Desie tor repaying this obligetion. «* TYPE OF OTHER INCOME SOuRce GROSS MONTHLY 2! AMOUNT 5 HANK ACCOUNT RAaME OF BANK —“"SRANCH NAME AND Cit CHECKING CHECKING ACCOUNT NO SAVINGS ¥ NO ACCOUNT ! _ vou “a S urce nO STATE PET MEFERENCES OF INGTALL MENT COMLIGATIONS INCLUDE FIAANCE COMPARES, BANKS. CREDIT CARDS. & CLUDE NAMES) OF PPL CANT in which CREDIT CAN BE ans Be VEPITIED. Led see tr OTNeR IMAM gNOwN BOVE. NAME OF CREDITOR aDOnmess . 1%) Cash Prce onc! tar wie +g ‘eos! s th .- > iT) ~Yewe Balance (5 & 6) S ” 12) Oown Payment Cesr 5. - oe 18) Payable te . Mo instalments of Sacce am an BY Peper s _ ome ! annus Perceniege Ase .. —.% Uted Cer Maes __ « ~— z Net trege 8 _ a ™ a2 | New Car trvowce Cost 8 ink? teams een ‘as 3 (Trace tow 8B LU «= Owed or Trear 5 am \ wry 3 (2) Unpaw Balence of Case Pret! 2 "eee a | tire, | Your ner ee: Soay Stye 5 wo 144 Ower Crerges te z = - oa tos —re a ae as (Soecity) 5 " 5 S su 1 a acl ghee’ wens SNeete yeL ESI ONOUAL Th PAR NERS — CORFORATIO crse 20: : SELLER'S cop D ODOMETER Bt RE STATEMENT - — CUPS URE RATE MoL vas Rilihead Vaanoees ot RE om ri Bist VEHICLE’ SOLD. ert LIGHT "30038 = 8014648 2014848 | baa re eR “cRoaTig = "GALI HR teAss1437 WORLD OMNI FINANCIAL Comm... haere 120 NW 2TH: AVE’, - ‘ DERRF TEUD REACH BL. ‘going a — ‘obtener siete inh artr fone. R°: Tie eee 160219096120 | ; eyes ar ee ee oe — 305-4021 ~7177 - ‘VE'7988 are ae bed 2s 3 = (1) } nerwby centity to the best of my lnowteds 3 tere ati ce tw amount Sonregeennes nani non sommes __ Mileage in excess of ie mechanical Bika tts MUCHO MGA im memmnaneenas are ce " | (2) Una cary tat te odometer reading ; SOR TEOr Lia AUCTION | ant | NOT te actual eine i ff ) on 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 $711.20 $711.20 $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 Plaintiff, © ° DEFENDANT’S AMENDED * 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. Deny. Deny. 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. g 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 nat [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1079%3A2. Public record. Not legal advice.