UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

HERIBERTO VALIENTE,

individually and on behalf of 

all those similarly situated,

Plaintiff,

v.

KENDALL CREDIT AND 

BUSINESS SERVICE, INC.,

Defendant.

Case No.: 22-23143-CIV-ALTONAGA/Damian

__________________________/

MOTION TO DISMISS FIRST AMENDED CLASS ACTION COMPLAINT

Defendant, Kendall Credit and Business Service, Inc. (“Kendall Credit”), by and through 

its undersigned counsel and pursuant to Federal Rule of Civil Procedure 12(b)(6), moves for entry 

of an Order dismissing the First Amended Class Action Complaint (“Complaint”) filed by 

Heriberto Valiente (“Plaintiff”), for failure to allege any claim that is “plausible on its face” under 

Twombly1and, in support hereof, states as follows:

I. Procedural History and Pertinent Allegations of the Amended Complaint

Kendall Credit previously filed a Motion to Dismiss Plaintiff’s original Complaint. (D.E. 

1; 6). Instead of defending his pleading, Plaintiff attempted to correct its deficiencies by amending 

it. (D.E. 10). The Amended Complaint, however, fails to cure the defects in the original Complaint 

as it continues to allege classes that lack standing and assert claims that are not legally viable. 

In his Amended Complaint, Plaintiff alleges that, on February 18, 2022, he sought and 

obtained medical treatment at West Kendall Hospital (“Kendall Hospital”). (D.E. 10 ¶ 12; D.E. 

10-2). Plaintiff alleges he is obligated to pay Kendall Hospital for the medical services rendered 

1 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 559 (2007).

Case 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 1 of 20
2

(the “Debt”). (D.E. 10 ¶ 12). Plaintiff does not allege that he ever was unsure of the identity of the 

entity in whose facility he obtained medical services or his obligation to pay for the medical 

services. Plaintiff alleges the Debt went into default one day later, on February 19, 2022. (Id. ¶ 

14). Plaintiff alleges Kendall Credit is a debt collector as that term is defined by the Fair Debt 

Collection Practices Act (“FDCPA”). (Id. ¶ 25).

Plaintiff alleges that, on May 1, 2022, Kendall Credit sent Plaintiff a letter which contained 

a validation notice and “represented ‘06/05/2022’ as the ‘date that the debt collector will consider 

the end of the validation period’” (the “First Letter”). (Id. ¶ 48). Plaintiff alleges the First Letter 

indicated Kendall Credit was a third-party attempting to collect the Debt. (Id. ¶¶ 29, 33). Plaintiff 

alleges that, on May 18, 2022, Kendall Credit sent him a Statement thanking him for his “recent 

payment” and advising “it has been applied to your balance” (the “Second Letter”). (Id. ¶ 51; D.E. 

10-2). Plaintiff alleges the Second Letter overshadowed “the least sophisticated consumer [sic]

right to dispute the Consumer Debt, or otherwise demand validation of the Consumer Debt, 

because [it] demands payment in full . . . on or before May 28, 2022.” (D.E. 10 ¶ 67).

Although Plaintiff concludes Kendall Credit is required to register as a consumer collection 

agency with the Florida Department of State, pursuant to Florida’s Consumer Collection Practices 

Act (“FCCPA”), he fails to allege any facts supporting this conclusion. (Id. ¶ 68). Plaintiff alleges 

Kendall Credit attempted to collect the Debt through the “First Letter or the Second Letter” while 

it was not registered and alleges Kendall Credit does not fall within any of the FCCPA exemptions 

to registration. (Id. ¶¶ 69, 70 (emphasis added)). Plaintiff includes in his Complaint the conclusory 

allegation that Kendall Credit’s collection activities directed toward Plaintiff constitute a criminal 

misdemeanor under Florida law. (Id. ¶ 72). Plaintiff vaguely alleges Kendall Credit, “by and 

through the First Letter and/or the Second Letter, caused Plaintiff to pay all and/or a portion of 

Case 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 2 of 20
3

the Consumer Debt”2even though Kendall Credit could not legally collect or attempt to collect 

the Debt because it is not registered under Florida Law. (Id. ¶ 73 (emphasis added)).

Plaintiff advances three causes of action against Kendall Credit: (1) violation of 15 U.S.C. 

§ 1692e, e(2)(A), e(5), and e(10); (2) violation of 15 U.S.C. § 1692g(b); and (3) money had and 

received. (Id. ¶¶ 88-109). Plaintiff purports to assert each of these claims on behalf of similarly 

situated persons: the “License Class” (Count I); the “Overshadow Class” (Count II); and the 

“Money Had and Received Class” (Count III). (Id. ¶¶ 74-87). Plaintiff fails to allege sufficient 

facts to state claims that are plausible, instead of merely possible, and the few vague and 

conclusory facts that he has alleged are contradicted by the exhibits attached to the Complaint as 

follows: (A) as to Count I, insufficient facts have been alleged to support the conclusion that 

Kendall Credit is subject to registration as a debt collector under the FCCPA; (B) as to Count I, 

the First Letter contradicts Plaintiff’s conclusory allegation that it was an attempt to collect a debt; 

(C) as to Counts I and II, insufficient facts have been alleged as to any payment; (D) as to Count 

II, Plaintiff fails to state a claim for overshadowing; (E) as to Count III, insufficient facts have 

been alleged as to the elements of the claim, the equitable claim fails as a matter of law because a 

legal remedy exists, and the common law claim for money had and received cannot be used to 

end-run the FCCPA’s bar on licensing claims; and (F) the claims of the three classes alleged by 

Plaintiff should be dismissed for lack of Article III standing.

II. Legal Standard Applicable to Motion to Dismiss

Every pleaded claim must be facially “plausible” – that is, it must allege sufficient factual 

content to permit the reasonable inference that the defendant is liable for unlawful conduct. 

2 Plaintiff chose not to reveal how much was paid, when it was paid, how it was paid or even 

to whom it was paid. 

Case 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 3 of 20
4

Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Twombly, 550 U.S. at 570). To meet this 

“plausibility” standard, a plaintiff must allege “sufficient facts” - - enough to move beyond the 

level of speculation - - to “nudge[ ] their claims across the line from conceivable to plausible.” 

Twombly, at 570. A mere “thread-bare” or “formulaic” recital of elements, naked legal 

conclusions, and unadorned, “the-defendant-unlawfully-harmed-me” accusations are not enough. 

Iqbal, 556 U.S. at 678; Twombly, at 555. Instead, the allegations must be factual (not conclusory) 

and suggestive (not neutral). Twombly, at 557. A claim’s allegations must “possess enough heft” 

to show an entitlement to relief in order to justify the continued costly process of litigation. Id. See 

also Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley 

Inv. Mgmt., Inc., 712 F. 3d 705, 719 (2d Cir. 2013) (citing goal of “prevent[ing] settlement 

extortion,” noting conclusory allegations, standing alone, “are a danger sign that the plaintiff is 

engaged in a fishing expedition.”) (citations omitted). 

III. Argument

A. As to Count I, insufficient facts have been alleged to support Plaintiff’s conclusory 

allegation that Kendall Credit is required to register as a debt collector under the FCCPA

Plaintiff alleges Kendall Credit is liable to Plaintiff and the License Class under 15 U.S.C. 

§ 1692e, e(2)(A), e(5) and e(10) “for attempting to collect consumer debts from Florida consumers 

without first registering and, thereafter, maintaining a valid consumer collection agency license in 

accordance with” the FCCPA. (D.E. 10 ¶¶ 89, 91-93). Plaintiff, however, fails to allege any facts 

that would support his conclusion that Kendall Credit properly must register with Florida as a debt 

collector under the FCCPA in the first place. Plaintiff alleges Kendall Credit’s purported failure to 

register as a debt collector violates the FDCPA because it amounts to: (i) the false representation 

of the character, amount or legal status of any debt (§ 1692e(2)(A)); (ii) the threat to take any 

action that cannot legally be taken or that is not intended to be taken (§ 1692e(5)); and (iii) the use 

Case 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 4 of 20
5

of any false representation or deceptive means to collect or attempt to collect any debt (§ 

1692e(10)). (Id. ¶¶ 88-95).

The FCCPA states: “A person may not engage in business in this state as a consumer 

collection agency or continue to do business in this state as a consumer collection agency without 

first registering in accordance with this part, and thereafter maintaining a valid registration.” 

§ 559.553(1), Fla. Stat. (emphasis added). A “consumer collection agency” is defined as “any debt 

collector or business entity engaged in the business of soliciting consumer debts for collection or 

of collecting consumer debts, which debt collector or business is not expressly exempted as set 

forth in s. 559.553(3).” § 559.55(3), Fla. Stat. (emphasis added). A “debt collector” is defined as: 

any person who uses any instrumentality of commerce within this 

state, whether initiated from within or outside this state, in any 

business the principal purpose of which is the collection of debts, or 

who regularly collects or attempts to collect, directly or indirectly, 

debts owed or due or asserted to be owed or due another . . . 

Fla. Stat. § 559.55(7). A “debt collector” under the FCCPA does not include: 

Any person while acting as a debt collector for another person, both 

of whom are related by common ownership or affiliated by 

corporate control, if the person is acting as a debt collector for 

persons to whom it is so related or affiliated and if the principal 

business of such persons is not the collection of debts.

Fla. Stat. § 559.55(7)(b).

Plaintiff fails to allege any facts to support his conclusion that Kendall Credit is required 

to register under the FCCPA and the exhibits to the Complaint contradict such a notion. Both the

First Letter and the Second Letter identify Kendall Hospital as the creditor. (D.E. 10-1 and 10-2).

The Second Letter indicates that payments can be made at https://billpay.baptisthealth.net. A 

cursory review of public records demonstrates that Kendall Credit is corporately affiliated with 

Baptist Health. When “West Kendall Hospital” is searched online, it appears as “West Kendall 

Baptist Hospital” with a web address of https://baptisthealth.net/locations/hospitals/west-kendallCase 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 5 of 20
6

baptist-hospital. Kendall Hospital’s homepage identifies Kendall Hospital as an affiliate of Baptist 

Health South Florida. Both are well known to be part of the Baptist healthcare system and have 

the Baptist pineapple logo prominently displayed throughout. 

The Florida Department of State, Division of Corporations, during all material times, 

identified Baptist Health South Florida’s mailing address as 6855 Red Road, Suite 600, Coral 

Gables, and its President as Brian E Keeley. A true and correct copy of the Florida Division of 

Corporations Detail by Entity Name for Baptist Health South Florida is attached as Exhibit 1. The 

Florida Department of State, Division of Corporations, during all material times, also identified

Kendall Credit’s mailing address as 6855 Red Road, Suite 500, Coral Gables, and its President as 

Brian E Keeley. A true and correct copy of the Florida Division of Corporations Detail by Entity 

Name for Kendall Credit is attached as Exhibit 2.

3 Baptist Health’s principal business is 

indisputably not the collection of debts. Kendall Credit is a debt collector for Kendall Hospital, 

with whom it is related by common ownership and affiliated by corporate control, and the principal 

business of the Baptist healthcare system is the provision of medical services, not debt collection. 

Plaintiff fails to include sufficient factual allegations to support his conclusory allegation 

that Florida law requires Kendall Credit to register as a debt collector for Kendall Hospital. More 

importantly, based on the exhibits attached to the Complaint and Plaintiff’s own knowledge as to 

his healthcare choices, even the slightest pre-suit investigation by Plaintiff’s counsel would have 

plainly revealed that it is not.

4 Under these circumstances, Count I of the Complaint properly 

should be dismissed for failure to state a claim under Rule 12(b)(6).

3 Kendall Credit requests the Court to take judicial notice of Exhibits 1 and 2 under Fed. R. 

Evid. 201(b)(2) and (c)(2).

4 Plaintiff’s counsel has represented multiple plaintiffs asserting identical complaints against 

Kendall Credit and is thus fully aware that Kendall Credit is affiliated with Baptist. See Martha 

Case 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 6 of 20
7

B. As to Count I, the First Letter contradicts Plaintiff’s allegation 

that it was an attempt to collect a debt

Plaintiff alleges the First Letter “indicates that Defendant is a third-party attempting to 

collect a debt owed to West Kendall Hospital” and “attempts to collect $5,758.00 from Plaintiff 

for services rendered.” (D.E. 10 ¶¶ 28-38). Plaintiff repeatedly highlights the fact that Kendall 

Credit identifies itself as a debt collector in the First Letter for the legal conclusion that, in fact, 

Kendall Credit is a debt collector. (Id. ¶¶ 28, 34, 35, 40). But Plaintiff’s allegations are undermined 

by the content of the First Letter, which demonstrates it is not an attempt to collect a debt. (See

D.E. 10-1).

The FDCPA prohibits debt collectors from using “any false, deceptive, or misleading 

representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. “That 

means in order to state a plausible FDCPA claim under § 1692e, a plaintiff must allege, among 

other things, (1) that the defendant is a ‘debt collector’ and (2) that the challenged conduct is 

related to debt collection.” Pinson v. Albertelli Law Partners, 618 F. App’x 551, 553 (11th Cir. 

2015) (emphasis added) (citing Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F. 3d 1211, 

1216 (11th Cir. 2012)). The FDCPA requires a debt collector to disclose in its initial 

communication that it “is attempting to collect a debt and that any information obtained will be 

used for that purpose.” 15 U.S.C. § 1692e(11). This disclosure requirement is the FDCPA’s “miniMiranda” warning which provides a statement of a consumer’s rights. Compliance with this

boilerplate requirement does not convert an initial communication into an attempt to collect a debt.

Ayme v. Kendall Credit and Bus. Serv., 22-cv-20621-JEM (S.D. Fla., March 1, 2022); Jennifer 

Ayme v. Kendall Credit and Bus. Serv., 1:22-cv-20619-JLK (S.D. Fla., March 1, 2022); Shamina 

Gilmore v. Kendall Credit and Bus. Serv., 1:22-cv-20956-RNS (S.D. Fla., March 29, 2022); Kayla 

Terry v. Kendall Credit and Bus. Serv., 0:22-cv-60764-WPD (S.D. Fla., April 20, 2022).

Case 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 7 of 20
8

As this Court has stated, the presence of the FDCPA’s boilerplate disclaimer “while not 

irrelevant, cannot meaningfully shift the analysis.” Bohringer v. Bayview Loan Servicing, LLC, 

141 F. Supp. 3d 1229, 1243 (S.D. Fla. 2015) (Altonaga, J.) In Bohringer, the plaintiff argued the 

letter at issue “contains an implicit demand for payment because it states the amount of the debt 

currently owed and includes a disclaimer it is an attempt to collect a debt.” 141 F. Supp. 3d at 

1242. This Court rejected the plaintiff’s argument explaining that a communication which “state[s]

balances due but d[oes] not set deadlines, threaten consequences, explain how payments could be 

made, or otherwise attempt to induce payment of a debt” is “not a communication made in 

connection with the collection of a debt.” Id. at 1243. The boilerplate disclaimer that a loan servicer 

is a debt collector is, simply, “not enough.” Id. at 1242. See also Goodson v. Bank of Am., N.A., 

600 F. App’x 422, 432 (6th Cir. 2015) (“Courts have found that a disclaimer identifying the 

communication as an ‘attempt to collect a debt[ ] . . . does not automatically trigger the protections 

of the FDCPA.’ . . . the inclusion of an FDCPA notice [is] ‘legally irrelevant.’”); Helman v. Udren 

Law Offices, P.C., 85 F. Supp. 3d 1319, 1325 (S.D. Fla. 2014) (“the inclusion of a notice stating 

that the sender is a debt collector attempting to collect a debt does not automatically trigger the 

protections of the FDCPA.”); Mathieson v. Wells Fargo Bank, NA, 524 F. Supp. 3d 1246, 1254

(M.D. Fla. 2021) (“a ‘mini Miranda’ warning, is not determinative of whether the letter is related 

to the collection of the debt.”) (Citing Hart v. Credit Control, LLC, 871 F. 3d 1255, 1258 n.1 (11th 

Cir. 2017).). 

Like the letter at issue in Bohringer, the First Letter does not set a deadline for payment. It 

does not demand payment. It does not threaten consequences or discuss repercussions or fees if 

payment is not tendered. It does not outline payment terms. It does not identify payment deadlines. 

It does not even discuss specifics of the underlying debt. Rather, the intent of the letter is to provide 

Case 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 8 of 20
9

information; not to collect a debt. (See D.E. 10-1). Plaintiff’s allegations that the First Letter 

violates the FDCPA in Count I fail to state a claim upon which relief can be granted and must be 

dismissed. Moreover, because the actual letter in question is attached to the Complaint, an 

amendment will not cure this deficiency. See Espinoza v. Countrywide Home Loans Servicing, 

L.P., No. 14–20756–CIV, 2014 WL 3845795, at *7 (S.D. Fla., Aug. 5, 2014) (Altonaga, J.) 

(denying motion for leave to amend because “there are no set of facts that could revive [Plaintiffs’] 

theor[ies] for relief, and therefore any further amendments of [the] complaint would be futile”) 

(citing Dorta v. Wilmington Trust Nat. Ass’n, No 5:13-cv-185-Oc-10PRL, 2014 WL 1152917, at 

*7 (M.D. Fla., March 24, 2014) (alterations added)). Accordingly, with respect to the First Letter, 

Count I of the Complaint properly should be dismissed with prejudice pursuant to Fed. R. Civ. P. 

12(b)(6).

C. As to Counts I and II, insufficient facts have been alleged as to any payment

Plaintiff claims he paid money in response to the “First Letter and/or Second Letter” and 

thus “sustained actual damages equal to the amount paid by Plaintiff.” (D.E. 10 ¶¶ 73, 94 (emphasis 

added)). However, he fails to allege which letter he paid in response to, let alone how much he 

paid, when he paid, who he paid or the way he paid. The timing and recipient of any alleged 

payment is a critical fact because it informs the parties as to which letter is actually at issue, if any. 

Clearly, payment sent before a letter is received cannot form the basis for a legal claim as to the 

later-arriving letter. Plaintiff should also be required to allege that he made the alleged payments 

to Kendall Credit and not some other entity like Kendall Hospital or its corporate parent. Plaintiff’s 

utter lack of specific factual allegations “clearly violates Federal Rule of Civil Procedure 8(a)(2), 

which requires a ‘short and plain statement of the claim.’” Hanninen v. Fedoravitch, No. 08-

23172-CIV, 2009 WL 10668707, at *2 (S.D. Fla., Feb. 26, 2009) (Altonaga, J.). 

Case 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 9 of 20
10

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed 

factual allegations . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 

relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a 

cause of action will not do....” Hanninen, 2009 WL 10668707, at *2 (citing Twombly, at 1964-65

(citations omitted)). “[A] complaint’s ‘[f]actual allegations must be enough to raise a right to relief 

above the speculative level.’” Hanninen, at *2 (citing Davis v. Coca-Cola Bottling Co. Consol., 

516 F. 3d 955, 974 (11th Cir. 2008) (quoting Twombly, at 1965)). “When the allegations contained 

in a complaint are wholly conclusory . . . and fail to set forth facts which, if proved, would warrant 

the relief sought, it is proper to dismiss for failure to state a claim.” Id. (citing Davidson v. Georgia, 

622 F. 2d 895, 897 (11th Cir. 1980) (citations omitted)).

Moreover, the exhibits attached to the Complaint contradict Plaintiff’s vague allegation 

that he may have paid money in response to the Second Letter. The First Letter, dated May 1, 2022, 

informs Plaintiff he has a balance of $5,758.00. (D.E. 10-1). As discussed above, the First Letter 

is not a debt collection letter and does not demand payment or threaten consequences for failure 

to pay. The Second Letter, dated May 18, 2022, identifies a balance due of $5,681.00 and states 

“Thank you for your recent payment, it has been applied to your balance.” (D.E. 10-2).5 Plaintiff 

does not attempt to allege actual harm or an appreciable risk of harm stemming from the Second 

Letter. Plaintiff’s allegations amount to nothing more than a “bare procedural violation” of section 

1692g(b). As such, the Complaint fails to plausibly make out a concrete injury in fact under section 

1692g(b) and must be dismissed. See Preisler v. Eastpoint Recovery Grp., Inc., No. 20-CV-62268-

RAR, 2021 WL 2110794, at *5 (S.D. Fla., May 25, 2021) (dismissing 1692g(b) claim for failing 

5 Plaintiff fails to acknowledge that the Second Letter reflects that a payment was made in 

response to the First Letter. (See D.E. 10 ¶¶ 51-67).

Case 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 10 of 20
11

to allege any “concrete ‘downstream consequences’” and receipt of the misleading letter “is simply 

insufficient to confer standing.”); Gause v. Med. Bus. Consultants, Inc., 424 F. Supp. 3d 1175, 

1201-02 (M.D. Fla. 2019) (dismissing the plaintiff’s claim for a section 1692g(b) violation as a 

“bare procedural violation” with no concrete injury in fact); Pozzuolo v. Portfolio Recovery 

Assocs., LLC, 371 F. Supp. 3d 217, 224 (E.D. Pa. 2019) (holding where the plaintiff never intended 

to dispute the debt, the debt collector’s violation of section 1692g(b) does not harm or present a 

material risk of harm to the plaintiff).

Plaintiff should not be allowed to survive a motion to dismiss based on intentionally vague 

and nebulous “and/or” allegations of payment. “[T]he FDCPA is a shield to protect debtors from 

unethical and illegal debt collectors; it is not a sword to be wielded to force defendants to pay 

plaintiffs who have not suffered.” Hill v. Resurgent Cap. Servs., L.P., No. 20-20563-CIV, 2020 

WL 4429254, at *4 (S.D. Fla., July 31, 2020) (citation omitted). See also Preisler v. Eastpoint 

Recovery Grp., Inc., No. 20-CV-62268-RAR, 2021 WL 2110794, at *6 (S.D. Fla., May 25, 2021) 

(“The Eleventh Circuit does not recognize an ‘anything-hurts-so-long-as-Congress-says-it-hurts 

theory of Article III injury[.]’”).

D. Plaintiff fails to state a claim for overshadowing in Count II

Plaintiff perfunctorily alleges that, pursuant to the First Letter, “the least sophisticated 

consumer had until ‘06/05/2022’ to exercise his or her right, as guaranteed by § 1692g(a)(3)-(5) 

of the FDCPA, to dispute, or request validation of” the debt at issue, yet the Second Letter 

“unlawfully overshadowed these rights by demanding payment from the least sophisticated 

consumer of the entire [debt] on or before 05/28/2022.” (D.E. 10 ¶ 98). Plaintiff alleges the 

overshadowing is a violation of § 1692g(b). 

Case 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 11 of 20
12

Determination of liability under Section 1692g(b) is a question of law for the Court to 

decide. Wright v. AR Res., Inc., No.: 8:20-cv-985-T-33CPT, 2020 WL 4428477, at *6 (M.D. Fla., 

July 31, 2020). In the Eleventh Circuit, whether communications to a consumer run afoul of the 

FDCPA is typically decided under the “least sophisticated consumer” standard. See Jeter v. Credit 

Bureau, Inc., 760 F. 2d 1168, 1177 n. 11 (11th Cir. 1985). Here, the First Letter provided Plaintiff 

with information necessary to challenge the debt allegedly owed before making a payment. (D.E. 

10-1). The First Letter is simple and informative and even the most unsophisticated consumer 

would know from the First Letter that he could challenge or request validation of the debt. (Id.) 

Plaintiff does not allege the First Letter omits the information mandated by § 1692g(a). The Second 

Letter belies Plaintiff’s allegation that it overshadowed the First Letter because the Second Letter 

demonstrates it was sent in response to a payment made by Plaintiff on the Debt. (See D.E. 10-2 

“Thank you for your recent payment, it has been applied to your balance.”). 

Plaintiff does not allege he attempted to dispute or verify the debt or otherwise contact 

Kendall Credit, either by telephone or in writing at any point. Plaintiff does not allege the debt was 

incorrect, or that he ever intended to dispute or verify the debt. Plaintiff does not allege he would 

have attempted to dispute or verify the debt if it had not been for the Second Letter, or that it

otherwise confused him as to his right to dispute and verify the debt. Rather, he simply chose not 

to dispute or seek validation of the debt that he admits he owed Kendall Hospital, and instead 

chose to make a payment before receiving the Second Letter. Count II for overshadowing properly 

should be dismissed for failure to state a claim upon which relief can be granted. 

E. Plaintiff fails to state a claim for money had and received in Count III

In Count III, Plaintiff alleges that Kendall Credit received and retained an unidentified 

amount of money “despite the fact the payment made to [Kendall Credit] included amounts which 

Case 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 12 of 20
13

[Kendall Credit] did not have the legal authority to assess or otherwise collect from Plaintiff 

because [Kendall Credit] did not possess a valid Consumer Collection Agency License from the 

Florida Department of State.” (D.E. 10 ¶ 105). Plaintiff alleges Kendall Credit’s failure to register 

under § 559.553(1) and (2) renders its collection activities directed at plaintiff a criminal 

misdemeanor under Fla. Stat. § 559.785. (Id. ¶¶ 68-72). This common law claim fails to state a 

claim upon which relief can be granted and properly should be dismissed with prejudice because 

any attempted amendment would be futile.

1. Plaintiff fails adequately to plead a claim for money had and received

The common law count for money had and received “constitutes a remedy at law to recover 

money erroneously paid or received by a defendant when to permit the defendant to keep the 

money would unjustly deprive the plaintiff of his ownership of the money.” Sharp v. Bowling, 511 

So. 2d 363, 364-65 (Fla. 5th DCA 1987). “Though this remedy is an action at law, it is equitable 

in nature and is founded upon the equitable principle that no one ought to be unjustly enriched at 

the expense of another.” Sharp, 511 So. 2d at 365. “Under Florida law, the elements of a claim for 

money had and received and unjust enrichment are the same.” Hakim-Daccach v. Knauf Int'l 

GmbH, No. CV 17-20495-CIV, 2017 WL 5634629, at *7 (S.D. Fla. Nov. 22, 2017) (citation 

omitted). A claim for unjust enrichment has three elements: “(1) the plaintiff has conferred a 

benefit on the defendant; (2) the defendant voluntarily accepted and retained that benefit; and (3) 

the circumstances are such that it would be inequitable for the defendants to retain it without paying 

the value thereof.” Virgilio v. Ryland Grp., Inc., 680 F. 3d 1329, 1337 (11th Cir. 2012) (citing 

Florida law). And, as to the first element of unjust enrichment, “the benefit conferred on the 

defendant must be a direct benefit.” Johnson v. Catamaran Health Sols., LLC, 687 F. App’x 825, 

830 (11th Cir. 2017) (emphasis in original; citing Florida law).

Case 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 13 of 20
14

Here, Plaintiff failed to plead the first and second elements of a claim for money had and 

received/unjust enrichment: (1) that he conferred a direct benefit on Kendall Credit; and (2) that 

Kendall Credit retained that benefit. Under Twombly’s construction of Rule 8, Fed. R. Civ. P., 

these pleading failures, standing alone, fail to nudge his claim “across the line from conceivable 

to plausible.” Iqbal, at 680 (citing Twombly, at 570). 

Plaintiff’s pleading failures are irreparably compounded by the fact that the Second Letter

demonstrates the exact opposite of Plaintiff’s allegations: the Second Letter confirms Plaintiff’s 

payment had been applied to the balance of his debt - - a debt he admits to owing. (D.E. 10 ¶ 12; 

D.E. 10-2). It is thus indisputable that, assuming for the sake of argument only that Kendall Credit 

received any payment from Plaintiff, Kendall Credit did not retain such money but applied it to 

Plaintiff’s admitted indebtedness. Where “the exhibits contradict the general and conclusory 

allegations of the pleading, the exhibits govern.” Drew Estate Holding Co., LLC v. Fantasia 

Distrib., Inc., No. 11–21900–CIV, 2012 WL 2341050, at *3 (S.D. Fla., Jan. 24, 2012) (Altonaga, 

J.) (citing Crenshaw v. Lister, 556 F. 3d 1283, 1292 (11th Cir. 2009) (citation and internal 

quotation marks omitted)). Plaintiff failed to allege the essential elements of an unjust enrichment 

claim and dismissal is appropriate. See Baptists v. JPMorgan Chase Bank, N.A., 640 F. 3d 1194, 

1198 n. 3 (11th Cir. 2011) (affirming dismissal of unjust enrichment claim and holding that 

plaintiff’s ‘unjust enrichment claim fails as a matter of law’ because plaintiff did not allege the 

defendant failed to give adequate consideration for the benefit conferred.).

2. Plaintiff cannot assert the equitable claim for money had and received because his 

FDCPA claim provides an adequate remedy

Plaintiff’s equitable claim for money had and received also fails as a matter of law because 

Plaintiff has an adequate statutory remedy:

Courts in Florida also require that a plaintiff pursuing an equitable 

claim based on a theory of unjust enrichment not have an adequate 

Case 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 14 of 20
15

remedy at law available. . . . Courts presented with a claim for 

statutory violations and a claim for unjust enrichment predicated on 

those same statutory violations note that ‘unjust enrichment is an 

equitable remedy available only where there is no adequate remedy 

at law.’

. . .

Although consumer debt collection practices acts were ‘established 

to protect consumers from certain harassing and privacy-invading 

conduct,’ it does not follow that a debt collector who collects money 

from a debtor in violation of the act has necessarily been unjustly 

enriched such that the debtor is entitled to restitution. Muzuco v. 

Re$ubmitit, LLC, 297 F.R.D. 504, 512 (S.D. Fla. 2013). This is 

because the money collected is a separate matter from the statutory 

violation. Id. (holding that the return of the money charged did not 

rob plaintiff class of standing to pursue FDCPA claim).

Carrero v. LVNV Funding, LLC, No. 18-23023-CIV-GOODMAN, 2014 WL 6433214, at *4 (S.D. 

Fla., Oc. 27, 2014) (collecting cases). As a matter of law, Count III should properly be dismissed 

with prejudice. 

3. Plaintiff cannot circumvent the fact that the FCCPA does not provide a private cause of 

action by pleading a count for money had and received

The FCCPA “does not provide a private cause of action” for failure to register, and “a 

plaintiff cannot circumvent that fact by recasting a § 559.553 requirement into a § 559.72(9) 

violation.” Connor v. Midland Credit Mgmt., Inc., No. 18-23023-CIV-GOODMAN, 2019 WL 

717413, at *11 (S.D. Fla., Feb. 20, 2019). See also Matute v. Main St. Acquisitions Corp., No. 11-

cv-62375-KMW, 2012 WL 4513420, at *3 (S.D. Fla. , Oct. 2, 2012) (Section 559.553 “does not 

give rise to a private right of action.”). Federal Courts have “declined to extend the already 

amorphous boundaries of unjust enrichment action to allow for a de facto private action for 

violation of the FCCPA.” Connor, 2019 WL 717413, at *11 (citing Carrero, 2014 WL 64733214, 

at *5 (in turn citing Matute, 2012 WL 4513420, at 9, 13)). The same result is warranted here. 

Case 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 15 of 20
16

F. The claims of the three classes alleged by Plaintiff should be dismissed

for lack of Article III standing

Class claims that do not plausibly allege facts that satisfy Rules 23(a) and 23(b) fail and 

properly should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). “Whether a district court should 

address class certification pursuant to a motion to dismiss turns in large part on the facial 

plausibility of the putative class action complaint.” King v. UA Local 91, No. 2:19-CV-01115-

KOB, 2020 WL 4003019, at *6 (N.D. Ala., July 15, 2020) (granting motion to dismiss and striking 

class claims because, in relevant part, “Plaintiffs’ class claims fail to satisfy Federal Rules of Civil 

Procedure 23(a) and 23(b)”); see also Stepanovich v. City of Naples, 728 F. App’x 891, 903 (11th 

Cir. 2018) (“[A]voiding the imposition of discovery on facially implausible claims is one of the 

key functions of 12(b)(6)”) (citing Twombly, 550 U.S. at 558).

1. The “License Class” 

In Count I, Plaintiff defines the “License Class” as: 

(1) all persons with Florida addresses (2) that [Kendall Credit] sent 

a letter to (3) in an attempt to collect a consumer debt (4) while 

[Kendall Credit] was not registered or otherwise in possession of a 

valid consumer collection agency license from and/or with the 

Florida Department of State (5) during the twelve (12) months 

preceding the filing of this Complaint. 

(D.E. 10, ¶ 75). Glaringly absent from this class definition is any allegation whatever that the 

License Class sustained any concrete injury in fact in order to establish Article III standing. The 

United States Supreme Court has made clear that “[e]very class member must have Article III 

standing in order to recover individual damages. ‘Article III does not give federal courts the power 

to order relief to any uninjured plaintiff, class action or not.’” TransUnion LLC v. Ramirez, 141 S. 

Ct. 2190, 2208 (2021) (citing Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 466 (2016) 

(Roberts, C.J., concurring). See also Drazen v. Pinto, 41 F. 4th 1354, 1361 (11th Cir. 2022).

Case 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 16 of 20
17

Plaintiff defines the “License Class” based solely on an informational injury, which is only 

an alleged statutory violation, with no concrete harm. With no concrete harm, the class has no 

damages. And with no damages, the class does not have Article III standing. See TransUnion, 141 

S. Ct. at 2214 (“no concrete harm, no standing”); Spokeo Inc. v. Robins, 578 U.S. 330, 341 (2016) 

(“Article III standing requires a concrete injury even in the context of a statutory violation”); 

Muransky v. Godiva Chocolatier, Inc., 979 F. 3d 917, 936 (11th Cir. 2020) (quoting Spokeo, at 

1548) (“A ‘bare statutory violation’ is not enough, no matter how beneficial we may think the 

statute to be.”); Trichell v. Midland Credit Mgmt., Inc., 964 F. 3d 990, 1004 (11th Cir. 2020) (“[a]n 

‘asserted informational injury that causes no adverse effects cannot satisfy Article III.’”). 

Plaintiff cannot cure his pleading deficiency by alleging that “members of the Collection 

License Class that paid money to resolve a debt after receiving a collection letter from Defendant 

have sustained actual damages equal to the total amount paid by each member of the Collection 

License Class.” (D.E. 10 ¶ 94). This conclusory, amorphous, overbroad allegation is not part of 

the class definition. Thus, the class will contain some members who paid and some who did not. 

As such, the class definition is impermissibly overbroad because it includes members who do not 

have any standing:

A class definition that encompassed all passengers would contain 

members lacking an injury-in-fact, and consequently, Article III 

standing. See Canady v. Allstate Ins. Co., 1997 WL 33384270, *3, 

1997 U.S. Dist. LEXIS 24067, *8 (W.D. Mo. June 19, 1997) 

(‘Because the court cannot accept plaintiffs’ blanket contention that 

every member of the proposed broad class definition has allegedly 

suffered harm as a result of the defendants’ wrongdoing, the court 

must find that the class definition is overbroad.’) (citing 

MidPeninsula Citizen for Fair Housing v. ACCO Mgmt. Co., 168 

F.R.D. 647, 649 (N.D. Cal. 1996)). This problem cannot be rectified 

by relying on individual passengers to ‘opt-out’ of the class if they 

did not suffer an injury. It was Plaintiffs’ burden to propose a class 

definition that was precise, objective, and presently ascertainable, 

Case 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 17 of 20
18

and not amorphous or overbroad. For the many reasons stated above, 

Plaintiffs have failed to meet that burden.

Conigliaro v Norwegian Cruise Line, Ltd., No. 05–21584–CIV, 2006 WL 7346844, at *6 (S.D. 

Fla., Sept. 1, 2006) (Altonaga, J.). Plaintiff’s attempt to establish a claim on behalf of the “License 

Class” fails and the class claim in Count I must be dismissed and/or stricken.

2. The “Overshadow Class”

In Count II, Plaintiff defines the “Overshadow Class” as: 

(1) all persons with Florida addresses (2) that were sent a letter (3) 

from and/or by [Kendall Credit], or someone on [Kendall Credit’s]

behalf (4) in an attempt to collect a debt (5) during the twelve (12)

months preceding the filing of this Class Action Complaint (6) 

whereby said letter demanded payment from the consumer prior to 

the deadline for the consumer to dispute and/or request validation of 

the underlying debt pursuant to by [sic] 15 U.S.C. § 1692g(a).

(D.E. 1-2, Compl. ¶ 55). Like Plaintiff’s failure in Count I to sufficiently allege the “License Class” 

suffered any concrete injury in fact, Plaintiff also fails to make any allegation whatever that the 

“Overshadow Class” sustained any concrete injury in fact in order to establish Article III standing. 

For the reasons discussed in Section F(1) above, which are incorporated in their entirety herein,

Plaintiff’s attempt to establish a claim on behalf of the “Overshadow Class” fails and the class 

claim in Count II must be dismissed and/or stricken.

3. The “Money Had and Received Class”

Plaintiff defines the “Money Had and Received Class” as: 

(1) all persons with Florida addresses (2) who directly or indirectly 

paid monies (3) to [Kendall Credit], or to any third party demanded 

by [Kendall Credit] (4) during the forty-eight (48) months preceding 

the filing of this action (5) in response to, or in connection with, debt 

collection efforts commenced by [Kendall Credit]. 

(D.E. 1-2, Compl. ¶ 56). This ambiguous definition, which identifies putative class members as 

those who “directly or indirectly paid monies . . . to Defendant, or to any third party demanded 

Case 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 18 of 20
19

by Defendant” is insufficient under Twombly and fails to state a claim upon which relief can be 

granted. Not only is this allegation too ambiguous and uncertain to survive Twombly, but also, it 

would include claimants who have no viable claim under Florida law, which requires a plaintiff to 

“confer a direct benefit” upon a defendant. See In re Takata Airbag Products Liab. Litig., 462 F. 

Supp. 3d 1304, 1328 (S.D. Fla. 2020). While Takata Airbag permitted plaintiffs to claim that they 

conferred a direct benefit “through indirect contact,” there is no support for the claims being 

advanced here that Kendall Credit can be held liable for payments made by plaintiffs “indirectly” 

to “third parties.” Either a benefit was conferred on Kendall Credit by each class member, or it 

was not; but if “third parties” received these benefits directly or indirectly, then the class members 

have no claim against Kendall Credit under Florida law. In other words, Kendall Credit cannot be 

liable for “money had and received” that it never had or received. Yet, that is exactly what has 

been pled in this action. The “Money Had and Received Class” is not viable under Florida law and 

should be dismissed.

WHEREFORE, Defendant, Kendall Credit and Business Service, Inc., respectfully 

requests entry of an order dismissing with prejudice the Amended Class Action Complaint filed 

by Plaintiff, Heriberto Valiente (D.E. 10), awarding all Kendall Credit’s attorneys’ fees and costs 

incurred in defending itself from this action pursuant to 28 U.S.C. § 1927 and 15 U.S.C. § 1692k, 

and for such further relief as the Court deems appropriate under the circumstances. 

Case 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 19 of 20
20

Respectfully submitted,

ISICOFF RAGATZ

601 Brickell Key Drive, Suite 750 

Miami, Florida 33131

Tel.: (305) 373-3232

Fax: (305) 373-3233

By: /s/ Matthew L. Lines

Eric D. Isicoff

Florida Bar No. 372201

Isicoff@irlaw.com

Matthew L. Lines

Florida Bar No. 0243980

Lines@irlaw.com

Catherine A. Mancing

Florida Bar No. 23765

Mancing@irlaw.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served via 

CM/ECF this 2d day of November, 2022, upon the following: 

Patti Zabaleta Law Group

Thomas J. Patti, Esq.

Victor Zabaleta, Esq.

3323 Northwest 55th Street

Fort Lauderdale, FL 33309

Tom@pzlg.legal

Victor@pzlg.legal

Counsel for Plaintiff, Heriberto Valiente

By: /s/ Matthew L. Lines

Matthew L. Lines

Case 1:22-cv-23143-CMA Document 13 Entered on FLSD Docket 11/02/2022 Page 20 of 20