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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

SHANNON CORINTI, and ALLISON 

SANTO individually, and on behalf of 

all others similarly situated,

Plaintiff, 

v.

ASSET PLUS CORPORATION,

Defendant.

 /

CASE NO.: 4:20-cv-00173-MW-MAF

PLAINTIFFS’ MEMORANDUM OF LAW IN

OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

The Plaintiffs, by and through undersigned counsel, hereby respond to 

Defendant Asset Plus Corporation’s Motion to Dismiss (Doc. 19) and respectfully 

request this Honorable Court deny such and in support thereof assert the following:

I. INTRODUCTION

It is well established that “[w]hen reviewing a motion to dismiss, a court must 

accept all factual allegations contained in the complaint as true and view the facts in 

a light most favorable to the plaintiff.” Bilotta v. Citizens Info. Assocs., LLC, No. 

8:13-CV-2811-T-30TGW, 2014 WL 12620851, at *1 (M.D. Fla. Jan. 10, 2014). 

However, Defendant gives little deference to these standards in its motion to dismiss, 

largely basing the arguments in its motion on the false, argumentative, and frankly 

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absurd notion that the Plaintiffs’ claims “are based on Plaintiffs’ discontent with 

Asset Plus’s refusal to force tenants out from the properties it manages.” (Doc. 24, 

pp. 1-2). The Plaintiffs, in fact, have pleaded exactly the opposite, asserting that 

tenants have been forced1 from the facility by dangerous conditions and that “so 

many Class members contacted Defendant that it engaged in mass communications 

with Class members to present its position that no rescission would be permitted.” 

(Doc. 19, pp. 13-14). Similarly, Asset Plus repeatedly argues its facilities were

“available” to its tenants, an allegation that flies directly in the face of the Plaintiff’s 

pleaded assertions that these facilities were too dangerous to use. To put it simply, 

Asset Plus’s largely fact-based arguments may be appropriate for a closing argument 

at trial but have nothing to do with the consideration of a motion to dismiss. 

Furthermore, Asset Plus’s motion to dismiss is also incorrect in that it asserts 

that the complaint is entirely based upon the cancellation of physical attendance at 

university classes. While this is an important consideration, as Plaintiffs pleaded in 

paragraph 60 of the Complaint,

Indeed, it is noteworthy that very similar dorm facilities 

run by the universities were closed down and the students 

urged to leave because the living arrangements were

unsafe to occupy. This was consistent with CDC 

guidelines which discouraged gatherings of more than 10 

people and advised that stringent “social distancing”

1 Indeed, contrary to the notion that the Plaintiffs are trying to force students out of their 

residences involuntarily, any particular student not interested in the relief sought herein could 

simply elect not to participate in the class.

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measures be taken to avoid transmission of COVID-19. 

However, Defendant, because of its own selfish pecuniary 

interests, refused to acknowledge that the particular form

of high-density housing arrangement that it provided was 

inconsistent with prudent safety measures.

(Doc. 19, p. 12). The facilities in question here involved shared bedrooms and 

shared bathrooms in addition to extensive shared common areas. (Doc. 19, ¶¶ 58 & 

59). The risk of COVID-19 infection simply could not be mitigated under this set 

of conditions without extensive depopulation of the facility. However, because of 

its selfish pecuniary interests, Asset Plus has maintained that facilities that were 

unsafe were nonetheless “available” to its tenants and continues to demand full 

payment for services it cannot safely provide. Correcting that injustice is the very 

reason for this lawsuit.

II. ARGUMENT

A. Asset Plus’s Request for Dismissal Claiming It Is Not A Proper 

Party Under the Lease Agreement Should Be Denied.

Plaintiffs’ first sentence in the Amended Complaint states, “Defendant Asset 

Plus Corporation owns and operates private dormitories at colleges and universities 

throughout Florida, including the Southgate where Plaintiffs Shannon Corinti and 

Allison Santos leased units.” (Doc. 19, ¶ 1) This in and of itself is enough to defeat 

Asset Plus’s attempt to dismiss on improper party grounds. 

As a threshold matter, this improper party argument is very questionable in 

that it is being raised for the first time in Asset Plus’s second motion to dismiss. 

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Indeed, in its first motion to dismiss, Asset Plus insisted quite the opposite, namely 

that “[t]he parties entered into a lease agreement,” the Plaintiffs made payment to 

Asset Plus, and Asset Plus “continued performance” under the contract. (Doc. 10, p. 

1-2). Importantly, there was also no mention whatsoever of the “Leon County 

Educational Facilities Authority” in Asset Plus’s initial disclosures.

Turning to the applicable legal standards, Asset Plus has itself acknowledged

that “the allegations against Asset Plus must be taken as true for the purpose of 

consideration of this Motion to Dismiss.” (Doc. 24, p. 2, fn. 1) That acknowledgment 

itself could also be dispositive enough to avoid dismissal at this stage of the case. 

Contrary to Defendant’s assertion “there are no other factual allegations that 

demonstrate any relationship between Asset Plus and Plaintiffs” (Doc. 24, p.5) the 

Amended Complaint states that Plaintiffs are the guarantors and co-signers of the

“Southgate Campus Centre” lease. (Doc. 19, ¶¶ 5-6). The Complaint further alleges 

that Asset Plus “is the manager of 122 apartment complexes and it operates at least 

11 locations in Florida” including Southgate, which is “managed by the Defendant.”

(Doc. 19, ¶¶ 7,11) See also de Jesus Hernandez v. Four Seasons Hotels Ltd., No. 

05-22360-CIV, 2005 WL 8155880, at *1 (S.D. Fla. Dec. 2, 2005) (denying a “wrong 

party” motion to dismiss because it would involve matters outside of the complaint).

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However, perhaps just as importantly, Asset Plus also makes arguments that 

are wildly at odds with its assertions that it is not the contracting party, arguing for 

example that

[t]he purpose of the contract was not to ensure that 

universities stay open, therefore, guaranteeing that 

Plaintiffs’ decision to enter the agreement is financially 

logical, but rather to provide housing to the student that 

chose to go to school in the Tallahassee area. Asset Plus 

has kept its end of the bargain and continues to provide

housing to students that chose to attend school in that area.

(Doc. 24, p. 6, n. 2). Here, not only does Asset Plus contend that it “has kept its end 

of the bargain” by “continu[ing] to provide housing to students,” an explicit 

acknowledgement that it was a party2 to the contract, it has also inexplicably been 

able to provide a copy of contracts concerning transactions that it supposedly had 

no part in, even claiming to fully understand the purpose of the agreements. Asset 

Plus has offered no explanation in its dismissal motion concerning the exact nature 

of its obvious involvement in these matters, and, rather bizarrely, even contends that 

“Asset Plus continues to perform” under the agreement it is supposedly not a party 

to (Doc. 24, p. 6).

2 There are other discrepancies worth mentioning as well. The allegation in paragraph 11 of the 

Amended Complaint that Southgate is a “student-only private dormitory” was taken directly from 

the front page of the Southgate website, www.southgateattallahassee.com. (Doc. 19., p. 3, 

emphasis added). Yet Asset Plus now suggests that the real party in interest is an apparently 

governmental entity named the “Leon County Educational Facilities Authority.”

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Not only is Defendant’s argument at odds with its own assertions, as

demonstrated by Exhibit A to Plaintiffs’ Amended Complaint, it was an e-mail from 

Defendant (southgatecampuscentre@assetliving.com) which informed students 

they would not be released from their lease agreement and “[w]e remain committed 

and are contractually obligated to provide housing for our residents” (Doc. 19-

1) (emphasis added). 

Given the discrepancies mentioned above, and when accepting the Plaintiffs’ 

assertions as true, dismissal is inappropriate, and discovery should be allowed to 

proceed as to these matters. Moreover, dismissal with prejudice would not be 

appropriate given the likelihood that a proper party could be named if Asset Plus is 

somehow indeed found to be an incorrect party.

B. Asset Plus’s Request for Dismissal of The Rescission Count Should 

Be Denied.

Asset Plus makes two arguments as to why the rescission count in the 

complaint should be dismissed. First, Asset Plus alleges that the “purpose [of the 

contract] has neither been frustrated nor rendered impossible as Asset Plus continues 

to perform” and further contends that the Plaintiffs’ complaint merely states that 

“access to common areas and amenities was available albeit under different 

circumstances.” (Doc. 24, p. 6). However, given that the “different circumstances” 

alleged in the complaint are that Asset Plus’s facilities were intended for human 

occupation but have now become unsafe to use, Asset Plus’s position that this does 

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not frustrate the purpose of the contract or render performance impossible is simply 

inexplicable. See Crown Ice Mach. Leasing Co. v. Sam Senter Farms, Inc., 174 So. 

2d 614, 617 (Fla. 2d DCA 1965) (holding that unsuitability of ice intended to be 

used in a packing process supported rescission under theories of frustration of 

purpose and impossibility of performance). In any event, the impossibility of 

performance and frustration of purpose issues present factual issues that are not 

amenable to a motion to dismiss.

Asset Plus’s second contention, namely that the lack of existence of an 

adequate remedy at law has not been adequately pleaded, is similarly without merit. 

Paragraph 67 of the complaint states that “[t]his count for rescission is pleaded in 

the alternative to any claim for legal relief. To the extent no remedy at law is 

available, rescission is appropriate.” (Doc. 19, p. 14). See Carran v. Morgan, 510 

F. Supp. 2d 1053, 1061 (S.D. Fla. 2007) (holding that alternative pleading for 

rescission is proper at pleadings stage). It should also be noted that, quite 

unsurprisingly, Asset Plus’s motion to dismiss contends that each and every one of 

the Plaintiff’s legal claims for relief are without merit. Plaintiffs have plead the 

elements per Bland v. Freightliner LLC, 206 F.Supp.2d 1202, 1206 (M.D. Fla. 

2002), the very case cited by Defendant. Thus, Asset Plus has, itself, demonstrated 

that the alternative pleading of the rescission claim was appropriate.

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C. Asset Plus’s Request for Dismissal of The Breach of Contract and

Implied Warranty Claims Should Be Denied.

Asset Plus argues that the Plaintiffs have failed to allege a violation of an 

express term of the contract such that a breach could be established and have also 

failed to identify any express term to which a good faith and fair dealing argument 

could apply. These arguments fall short.

First, there are express terms of the contract that have been directly violated. 

As was noted in the paragraph 69 of the complaint, 

The Housing Contract provided that each Plaintiff “shall 

. . . have the right to use, in common with other residents 

of the community, swimming pools, saunas, spas, tanning

beds, exercise rooms, storerooms, laundry rooms, . . . 

meeting rooms and other areas of the Community intended 

for use by all residents of the Community[.]”

(Doc. 19, p. 14). As was further explained by paragraph 70, “[t]he Defendant [has]

breached the contract because they are unable to safely provide these services and 

amenities.” (Doc. 19, p. 14). 

Asset Plus’s response to this very straightforward claim of breach is to argue 

that “[n]othing in the lease obligates Asset Plus to provide any minimum number of 

common areas or amenities—only access to those common areas and amenities that 

do exist.” (Doc. 24, p. 8). However, it is very interesting that Asset Plus argues 

that it is not required to provide access to any particular amenities in light of the fact 

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that its contract specifically provides a list of such amenities, namely “swimming 

pools, saunas, spas, tanning beds, exercise rooms, storerooms, laundry rooms, . . . 

meeting rooms and other areas of the Community intended for use by all residents 

of the Community.” (Doc. 19, p. 14). More importantly, the Plaintiffs have clearly 

alleged a lack of effective access to amenities that “do exist” but are otherwise 

unusable due to COVID-19. As such, a breach has been appropriately pleaded.

As to the implied covenant of good faith, the complaint is equally clear. The 

contract at issue here is one where, by its express terms, the Plaintiffs pay for the 

right to occupy communal, dorm-style housing with shared bedrooms, bathrooms, 

and common areas. Due to the physical structure of these housing arrangements, 

they are particularly and uniquely unsafe to occupy due to the COVID-19 pandemic, 

akin to a cruise ship on land. Notably, as is explained in the complaint, the 

universities themselves operated very similar housing and decided it was unsafe to 

occupy. There was only one way to make this housing safe, and that was for “a vast 

majority of the students [to] move out in order to practice safe social distancing in 

accordance with CDC recommendations.” (Doc. 19, p. 15). It was thus inconsistent 

with the obligation of good faith and fair dealing for Asset Plus to assert that the 

Plaintiffs were getting the benefit of their bargain when a decision to remain would 

have been inconsistent with public health concerns and guidance.

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Likewise, the complaint also makes it clear that it was unfair and inconsistent 

with the duty of good faith and fair dealing for Asset Plus to closely tie itself to the 

university campus and activities, but then later contend that the cessation of classes 

on campus was irrelevant. As noted in the complaint, “once the schools have closed 

and the students it purports to serve have been forced to leave, the reality reveals 

itself that Defendant does not consider its provision of room, board, and services to 

be tied whatsoever to the schools or to the students’ academics, as it has failed to 

refund unearned payments for room, board, and fees.” (Doc. 19, p. 15). Asset Plus’s 

position is utterly inconsistent with the contract’s description of Southgate as a 

“student residence environment” and also conflicts with the fact that the contract

clearly provides for school related scheduling, such as meals being served only when 

school is in session. (Doc. 24-1, p. 48 & 55).

D. The Florida Consumer Collection Practices Act Claims Should 

Not Be Dismissed.

The Florida Consumer Collection Practices Act (FCCPA) “is a laudable 

legislative attempt to curb what the Legislature evidently found to be a series of 

abuses in the area of debtor-creditor relations.” Harris v. Beneficial Fin. Co. of 

Jacksonville, 338 So.2d 196, 200-201 (Fla. 1976). The FCCPA “is to be construed

in a manner that is protective of the consumer[,]” FCCPA § 559.552, and when

determining whether harassing conduct violates the statute, courts do not use a

reasonable person standard, but evaluate the conduct from the perspective of a

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consumer whose circumstances makes him relatively more susceptible to

harassment. Jeter v. Credit Bureau Inc. 760 F.2d 1168, 1180 (11th Cir. 1985).

The Florida Consumer Collection Practice Act in pertinent part states:

559.72 Prohibited practices generally. —In collecting consumer debt, no 

person shall:

(7) Willfully communicate with the debtor or any member of her 

or his family with such frequency as can reasonably be expected 

to harass the debtor or her or his family, or willfully engage in 

other conduct which can reasonably be expected to abuse or 

harass the debtor or any member of her or his family;

(9) Claim, attempt, or threaten to enforce a debt when such 

person knows that the debt is not legitimate or assert the 

existence of some other legal right when such person knows that 

the right does not exist; 

Asset Plus first claims it is entitled to dismissal of Plaintiff Corinti’s claim 

because “there is no outstanding debt.” (Doc. 24, p. 12). In other words, because 

Corinti happened to pay all the spring semester rent up front, Defendant contends it 

should be in the clear. However, neither the plain language of the FCCPA nor case 

law interpreting it requires that a debt be outstanding for the consumer protection 

provisions of the statute to apply. To the contrary, the FCCPA applies to all debts, 

whether due or not and defines “debt” as “any obligation or alleged obligation.” See

FCCPA § 559.55(1). 

Under the FCCPA, Corinti created the requisite debt obligation when she 

signed the contract with the Defendant. (Doc. 19, ¶ 5). Asset Plus’s interpretation 

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flies in the face of reason and would render §§ 559.72(7) & (9) meaningless. For 

example, under Defendant’s view of the law, if a consumer is harassed, abused and 

threatened into paying a debt they don’t owe, they would be barred from bringing a 

claim because there is “no outstanding debt.” Notably, that is in fact what happened 

in this case as to the other Plaintiff, Santo, as discovery will confirm that Santo felt 

harassed and worried by Defendant’s collection efforts and ultimately paid the rent 

for the month of April 2020. The fact that Corinti’s debt is no longer outstanding 

does not preclude her FCCPA claim, and this argument should be rejected. 

Defendant is likewise incorrect when it claims there are no allegations that Asset 

Plus made any efforts to collect a debt from Corinti (Doc. 24, p. 13); in fact, Corinti 

alleges that Defendant “collected this money for services it did not and could not 

perform.” (Doc. 19, ¶ 16). Corinti’s claim is well-plead and should proceed.

Defendant’s next arguments are directed towards Santo, and the purported 

insufficiency of her FCCPA allegations. Asset Plus asserts that Santo’s “allegations 

in the Amended Complaint are nothing more than mere recitations ... and conclusory 

allegations that Asset Plus ‘is haranguing and harassing [Santo] and her daughter 

concerning a debt they do not owe.’ Am. Compl. ¶ 22” (Doc. 24, p. 20) But Asset 

Plus omits the very next sentence in the Amended Complaint which asserts, 

“Defendant is attempting to collect rent for the month of April although Plaintiff and 

her daughter do not owe this debt.” (Doc. 19, ¶ 23). 

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Plaintiffs’ allegation of specific debt collection misconduct is directly 

supported by the evidence referred to and attached to the Amended Complaint, 

including the first debt collection correspondence Asset Plus sent to Plaintiffs and 

all the residents, attached to the Amended Complaint as Exhibit A. Plaintiffs 

specifically allege the following:

Astonishingly, on March 31, 2020, Defendant sent an email to all its 

residents, feigning concern and stating “[o]ur hearts go out to those 

experiencing hardships as a result of COVID-19,” but then goes on to 

compare this situation to Christmas vacation or “spring break” to 

support its position that they will not refund any money or let anyone 

out of their contract, and “does not anticipate doing so in the future, for 

any reason related to COVID 19.” (Please see Exhibit A)

Defendant states in the March 31, 2020 letter that its motivation for 

refusing to provide refunds or allow people out of their lease was 

motivated by its own financial gain including its need to pay “real estate 

taxes.” 

(Doc. 19, ¶¶ 38-39).

The subsequent timeline of correspondence confirms Defendant’s debt 

collection conduct. Defendant sent Santo the March 31 letter the day before rent was 

due from all residents including Santo.3 On April 6, 2020 at 3:03 p.m., Defendant 

sent Santo correspondence titled “FIRST LATE NOTICE” and the subject line 

“Delinquency Notice” which stated, “[a]ccording to our records, payment of your 

rental account has not been received. You are reminded that all rent is due on the 

3 This is evidenced by the lease attached by the Defendant as their Exhibit A, which was not 

included in Plaintiffs’ Amended Complaint. (Doc. 24-1)

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day indicated in your lease for ea ch(sic) calendar month.” (See Exhibit 1) Less than 

an hour later, at 3:59 p.m. on April 6, 2020, Defendant sent Santos another 

correspondence stating, “the April payment is now due.” This email went on to state 

“[w]e understand that many of our families are experiencing hardships due to the 

outbreak of the COVID-19 virus ... you must email me to set up a payment plan.” 

(See Exhibit 2).4 As these allegations and evidence demonstrate, Defendant’s 

suggestion that no debt collection cause of action is alleged is simply incorrect. 

Asset Plus’s final argument is that “[n]either Corinti nor Santo alleges that 

Asset Plus knew or intended to collect on a debt that was illegitimate or without legal 

right.” (Doc. 24, p. 14). This assertion is false, as Plaintiffs expressly allege both 

Defendant’s knowledge as well as the illegitimacy of the debts. Specifically, 

Plaintiffs allege, “Defendant has violated Florida Statute § 559.72(9) by attempting 

to enforce a debt when Defendant knows that the debt is not legitimate, or to assert 

the existence of some legal right when Defendant knows that right does not exist.” 

(Doc. 19, ¶ 93). Plaintiffs went into further detail concerning Defendant’s actual 

4 Exhibit 1 and 2 were not attached to the Amended Complaint but are referenced in the complaint 

and specifically described as “Defendant is attempting to collect rent for the month of April 

although Plaintiff and her daughter do not owe this debt. (Doc. 24, ¶ 23) As pointed out in Ali v. 

LH All. Inc., No. 19-CV-61387, 2019 WL 3997124, (S.D. Fla. Aug. 23, 2019), a case cited by 

Asset Plus in their Motion to Dismiss, a court considering a Rule 12(b) motion is generally limited 

to the facts contained in the complaint and attached exhibits, but documents may still be considered 

when they are central to Plaintiff’s claims, citing, Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,

959 (11th Cir. 2009); see also Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 (11th Cir.

2005) (“[A] document outside the four corners of the complaint may still be considered if it is 

central to the plaintiff's claims and is undisputed in terms of authenticity.”) 

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knowledge of the debts’ illegitimacy by identifying the proclamations from the 

President, Florida’s Governor and CDC. (Id., ¶¶ 25-27). Plaintiffs have sufficiently 

alleged Defendant’s knowledge that the debts were illegitimate.

In sum, this case presents a classic violation of consumer law, albeit in a novel 

form presented by the COVID-19 pandemic. The FCCPA was designed, however, 

to address all manners of debt collection conduct, and Defendant presents no case 

law stating or even suggesting that when a landlord can no longer safely provide its 

services, it is nevertheless entitled to collect consumer debts. Moreover, whether a 

defendant violated the FCCPA is a jury question, inappropriate for a motion to 

dismiss. See Ortega v. Collectors Training Inst. of Ill., Inc., No. 09-21744-CIV, 2011 

WL 241948, at *9 (S.D. Fla. Jan. 24, 2011) (“Florida courts have placed the 

determination of elements comprising FCCPA violations within the jury’s 

province.”) (citing Story v. J.M. Fields, Inc., 343 So. 2d 657, 677 (Fla. 1st DCA 

1977) (holding it is the business of juries to determine the legitimacy of the creditor's 

claim, the plausibility of the debtor's excuse and all other circumstances that color 

the transactions). Plaintiffs have plead straightforward violations of §559.72(7) 

and/or §559.72(9), and the claims should proceed. 

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E. Counts IV, V, VI Should Not Be Dismissed on The Grounds That 

the Plaintiffs “Continue to Enjoy the Benefits They Paid to

Receive.”

As noted in the introduction, Asset Plus’s motion to dismiss fails to honor the 

standards for a motion to dismiss, most notably that “a court must accept all factual 

allegations contained in the complaint as true, and view the facts in a light most 

favorable to the plaintiff.” Bilotta v. Citizens Info. Assocs., LLC, No. 8:13-CV-2811-

T-30TGW, 2014 WL 12620851, at *1 (M.D. Fla. Jan. 10, 2014). Asset Plus’s

assertion that “the Plaintiffs continue to enjoy the benefits they paid to receive” goes 

directly against allegations in the complaint that the facilities and amenities at 

Southgate are unusable because they are dangerous, and in certain instances, such as 

the cafeteria, were closed. Plaintiffs certainly are not enjoying the benefits, have 

properly pled that fact, and Asset Plus’s spin on the facts has no relevance to a 

motion to dismiss. 

Asset Plus also contends that Counts IV (money had and received) and VI 

(unjust enrichment) are redundant “because they require the same proof and seek the 

same relief.” (Doc. 24, pp. 16-17). However, this allegation of redundancy does not 

require dismissal. See Wichael v. Wal-Mart Stores, E., LP, No. 6:14-cv-579-Orl40DAB, 2014 WL 5502442, *2 (M.D. Fla. Oct. 30, 2014)(“‘[M]otions to dismiss 

made under Rule 12(b)(6) only test the validity of the claim, not its redundancy; a 

redundant claim should not be dismissed as long as it is valid.’”). It is also 

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noteworthy that Asset Plus asserts the existence of a contract as a defense to Count 

VI’s unjust enrichment claims but does not appear to allege the applicability of the 

same defense to Count IV’s money had and received claim. As such, not only will 

Asset Plus suffer no prejudice as a result of an allegedly duplicative claim, but this 

discrepancy suggests that these claims are not entirely redundant in the context of 

this case. 

F. The Lease Does Not Preclude the Plaintiffs’ Unjust Enrichment 

Claims.

Asset Plus contends that the existence of the “valid” lease precludes an unjust 

enrichment claim. However, “[u]njust enrichment may . . . be pleaded in the 

alternative to a breach of contract claim where one of the parties asserts that the 

contract governing the dispute is invalid.” Degutis v. Fin. Freedom, LLC, 978 F. 

Supp. 2d 1243, 1265 (M.D. Fla. 2013). Here, the Plaintiffs have raised a potential 

challenge to the validity of the lease by pleading in the alternative for rescission of 

the lease. As such, the pleading of unjust enrichment to recover amounts paid for 

the time that the premises could not be used is proper.

G. The Plaintiffs Conversion Claims Are Proper and Should Not Be 

Dismissed.

In this case, there is cause to conclude that the obligation at issue here is more 

than “a simple debt which can be discharged by the payment of money.” Gasparini 

v. Pordomingo, 972 So. 2d 1053, 1055 (Fla. 3d DCA 2008). Rather, “[f]or money 

to be the object of conversion ‘there must be an obligation to keep intact or deliver 

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the specific money in question, so that money can be identified.’” Id. (quoting Futch 

v. Head, 511 So.2d 314, 320 (Fla. 1st DCA 1987). Such a requirement exists under 

the lease agreement at issue here, as the lease specifically permits a refund of prepaid 

amounts at any time during the lease through “reletting” and contemplates a separate 

“account” for each lessor for that purpose. Specifically, the lease contract provides 

that 

Under no circumstances will prepaid funds or deposits 

on the tenant’s account be transferred to a relettor’s 

account. Should the tenant wish to pay for any of their 

fees, they must do so by paying the relettor directly or 

submitting a payment to management in the relettor’s 

name.

(Doc. 24-1, p. 76) (emphasis added). Because there is an identifiable and separate 

“account” under the contract attributable to each tenant, the conversion claim is 

appropriate for returnable amounts that have been paid.

III. CONCLUSION

Plaintiffs assert they have properly asserted the above causes of action, if the 

Court disagrees for any reason Plaintiffs ask for the opportunity to amend. 

Respectfully submitted,

/s/William “Billy” Peerce Howard

William “Billy” Peerce Howard, Esquire

Florida Bar No. 0103330

Amanda J. Allen, Esquire

Florida Bar No. 0098228

THE CONSUMER PROTECTION FIRM 

Case 4:20-cv-00173-MW-MAF Document 27 Filed 06/26/20 Page 18 of 19
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4030 Henderson Blvd.

Tampa, FL 33629

Telephone: (813) 500-1500

Facsimile: 813) 435-2369

Billy@TheConsumerProtectionFirm.com

Amanda@TheConsumerProtectionFirm.com

John W. Barrett, Esq. (pro hac vice)

Raymond S. Franks II (pro hac vice)

BAILEY & GLASSER, LLP

209 Capitol Street

Charleston, WV 25301

Telephone: (304) 345-6555

Facsimile: (304) 342-1110

JBarrett@baileyglasser.com

rfranks@baileyglasser.com

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on June 26, 2020, I electronically filed the 

foregoing with the Clerk of Court using the Court’s CM/ECF system, which will 

automatically send electronic notification and a copy of such filing to the following 

counsel of record.

Respectfully Submitted,

/s/ William “Billy” Peerce Howard

William “Billy” Peerce Howard, Esquire

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