IN THE SUPREME COURT OF FLORIDA. vs. L.T. NO.: 3D ON NOTICE TO INVOKE DISCRETIONARY JURISDICTION FROM THE THIRD DISTRICT COURT OF APPEAL

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1 IN THE SUPREME COURT OF FLORIDA CATHERINE RIGGINS Petitioner, CASE NO.: SC vs. L.T. NO.: 3D AMERICAN EXPRESS CENTURION BANK, Respondent. / ON NOTICE TO INVOKE DISCRETIONARY JURISDICTION FROM THE THIRD DISTRICT COURT OF APPEAL CIVIL ACTION RESPONDENT S ANSWER BRIEF ON JURISDICTION Respectfully submitted by: Steven M. Canter, Esq. Attorney for Respondent Florida Bar No Borack & Associates, P.A. P.O. Box Pembroke Pines, FL Tel. (954) Fax (954)

2 TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF AUTHORITIES..ii STATEMENT OF THE CASE AND OF THE FACTS..1 JURISDICTIONAL STATEMENT..3 SUMMARY OF ARGUMENT.4 ARGUMENT...5 I. THE THIRD DISTRICT S DECISION CONTAINS NO POINT OF LAW THAT CONFLICTS WITH THIS COURT S HOLDING IN RIVER HOLDING..5 II. THE THIRD DISTRICT S DECISION CONTAINS NO POINT OF LAW THAT CONFLICTS WITH THE SECOND DISTRICT S HOLDING IN PICI AND PUBLIC POLICY... 6 III. THE THIRD DISTRICT S DECISION CONTAINS NO POINT OF LAW THAT CONFLICTS WITH THE FIFTH DISTRICT S HOLDING IN PARISI..7 IV. THE DISSENTING OPINION WAS NOT INTENDED BY THE FRAMERS FOR CONSIDERATION BY THE SUPREME COURT S DETERMINATION OF DISCRETIONARY JURISDICTION.8 CONCLUSION.8 CERTIFICATE OF SERVICE 9 CERTIFICATE OF COMPLIANCE..9 i

3 TABLE OF AUTHORITIES CASES The Florida Star v. B.J.F., 530 So.2d 286 (Fla. 1988) Jollie v. State, 405 So.2d 418, 420 (Fla. 1981). River Holding Co. v. Nickel, 62 So.2d 702, 704 (Fla. 1952). Pici v. First Union Nat l Bank, 621 So.2d 732, 733 (Fla 2d DCA 1993) Parise v. Citizens Nat l Bank, 438 So.2d 1020, 1022 (Fla. 5 th DCA 1983). Constitutional Provisions Art. V. 3(b)(3), Fla.Const ii

4 STATEMENT OF THE CASE AND OF THE FACTS Petitioner, CATHERINE RIGGINS (hereinafter RIGGINS ) entered into a credit card agreement with Respondent, AMERICAN EXPRESS CENTURION BANK (hereinafter AMEX ). AMEX extended a credit card account to RIGGINS pursuant to the terms and conditions of the credit card agreement. This agreement provided RIGGINS to use said credit card account and to pay the balance accumulated by way of purchases, cash advances, balance transfers, and delinquency/penalty fees pursuant to the terms of the agreement. Upon de novo review of the record on appeal and after oral argument, the Third District Court of Appeals determined that there was no dispute as to RIGGINS default on the subject account as shown in the February 2002 statement, the March 2002 statement, and the April 2002 statement. (App. 1 at 1.) The credit card agreement requires the cardholder to make no less than the minimum payment (1/36 th of the outstanding balance) by the due date. In the event that the full amount of the minimum payment is not paid by the due date, the cardholder defaults the credit card agreement and is charged a late fee. The credit card agreement also provides that the cardholder pay down the outstanding balance below the credit line established for that account. In the event the full amount of the outstanding balance has not been 1

5 paid down below such credit line, the cardholder defaults the credit card agreement and is charged a over the credit line fee. Due to prior inadequate payments and the account exceeding the credit line, the subject account was closed in February of 2002, the closed status of the account is specifically stated on the February 2002, March 2002, and April 2002 statements. (App. 1 at 3.) Said statements reflect payments received that were less than the minimum balance due and outstanding balances above the given credit line. The statements also show late charges and over the credit line fees assessed on each statement. RIGGINS sent AMEX the minimum payment stated on her April 2002 statement in the sum of $1, Said payment did not include the past due amount of $1, left due from the February 2002 statement or the past due amount of $1, left due from the March 2002 statement. The Third District Court acknowledged this deficiency and the fact that the account had not been brought under the credit line, leaving the account in default and uncured by the tendering of the minimum payment by affirming the lower court s decision. Several months thereafter AMEX accelerated the full balance due and owing by filing the underlying action against RIGGINS. The Third District 2

6 Court of Appeals affirmed that the outstanding balance was properly accelerated by filing suit. (App. 1 at 1.) The dissenting opinion, commences its summary of the facts at the April 2002 statement, with respect to payment of the minimum payment due from said statement. (App. 1 at 3.) The dissenting judge determined such payment to bring the account current, essentially curing her prior defaults and thus the dissent opinion does not address the prior defaults admitted and undisputed by RIGGINS. (App. 1 at 1.) RIGGINS s motion for rehearing, rehearing en banc and for certification was denied. JURISDICTIONAL STATEMENT The Supreme Court of Florida may review any decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or of the Florida Supreme Court on the same question of law. Art. V. 3(b)(3), Fla.Const. In The Florida Star v. B.J.F., 530 So.2d 286 (Fla. 1988), this Court clarified this constitutional provision as subject-matter jurisdiction under Art. V. 3(b)(3), Fla.Const, over any decision of a district court that expressly addresses a question of law within the four corners of the opinion itself. Id at 288. The opinion must contain a statement or citation effectively establishing a point of law upon which the decision rests. Id. Art. V. 3(b)(3), Fla.Const creates and defines two 3

7 separate concepts: the first is a general grant of discretionary subject-matter jurisdiction, and the second is a constitutional command as to how the discretion itself may be exercised. In effect, the second is a limiting principle narrowing the Court s discretion to exercise the subject-matter jurisdiction. Id. This Court does not have subject-matter jurisdiction over a district court opinion that fails to expressly address a question of law, such as opinions issued without opinion or citation. Jollie v. State, 405 So.2d 418, 420 (Fla. 1981). The Third District Court of Appeal per curium opinion consisted of its decision that AMEX properly accelerated RIGGINS outstanding balance by filing suit while she was admittedly in default. The district court then cited a number of cases supporting their decision to affirm. SUMMARY OF ARGUMENT The crux of RIGGINS argument to invoke this Court s discretionary jurisdiction is based upon her contention that the Third District s finding of fact that she was admittedly in default was never a disputed issue. AMEX agrees that the issue was not in dispute since when questioned by the Third District as to whether the subject April 2002 payment included the past due amounts RIGGINS could not deny that said amounts were satisfied. 4

8 Nonetheless the substance of RIGGINS argument essentially seeks certiorari review of the Third District finding of fact, which has already been denied by the Third District. The standard that needs to be meet is rather demonstrating that the opinion of the Third District contains a statement or citation effectively establishing a point of law upon which the decision rests that expressly and directly conflicts with an opinion of another district court or the Supreme Court of Florida, but that standard has not been reached. ARGUMENT I. THE THIRD DISTRICT S DECISION CONTAINS NO POINT OF LAW THAT CONFLICTS WITH THIS COURT S HOLDING IN RIVER HOLDING. In her brief on jurisdiction RIGGINS cites a portion of the rule adopted by this Court in River Holding however the rule specifically relates to a tender of arrears on a mortgage containing an acceleration clause. River Holding Co. v. Nickel, 62 So.2d 702, 704 (Fla. 1952). In the Third District s de novo review of the underlying matter, the Third District and the trial court were required to interpret the terms and conditions between the parties. The contract in question was a credit card agreement, which is distinctively different from a mortgage. A mortgage typically sets forth a scheduled payment that is designed to systematically payback the loaned amount with interest; whereas a credit card account is a 5

9 revolving line of credit that provides a minimum payment, which is acceptable provided the account is current, it remains incumbent upon the cardholder to make payment of the necessary amounts to payback all sums owed including delinquent sums. The minimum payment on a credit card account is not a mechanism designed to systematically payback all sums owed. Therefore, the point of law considered by this Court in River Holding is distinguishably different in the Third District s decision did not reach the finding that adequate payment or tender of adequate payment was made by RIGGINS. For the above reasons, this Court should not accept or exercise discretionary jurisdiction over this matter for it could not cause inequitable results should the matter arise in future cases whether they be credit card account disputes or mortgage actions. II. THE THIRD DISTRICT S DECISION CONTAINS NO POINT OF LAW THAT CONFLICTS WITH THE SECOND DISTRICT S HOLDING IN PICI AND PUBLIC POLICY. In Pici v. First Union National Bank of Florida, a demand was issued by the creditor for two months of payments that were delinquent plus the applicable late charges. Pici v. First Union Nat l Bank, 621 So.2d 732, 733 (Fla 2d DCA 1993) Pici paid that sum, including the late charges. Thus the analysis of whether acceleration of the loan and the manner in which it was 6

10 performed only came at issue because Pici made payment of the full amount needed to cure all delinquencies, without same he would have remained in default. Id. In the present case, the Third District did not find the April 2002 payment to be sufficient to cure all delinquencies and thus the acceleration by way of this filing of a law suit was consistent with the case law relied upon in Pici and accordingly no public policy issues arise. Id. Therefore, this Court should not accept or exercise discretionary jurisdiction over this matter for it could not cause inequitable results should the matter arise in future cases whether they be credit card account disputes or mortgage actions. III. THE THIRD DISTRICT S DECISION CONTAINS NO POINT OF LAW THAT CONFLICTS WITH THE FIFTH DISTRICT S HOLDING IN PARISI. In RIGGINS brief on jurisdiction, she states that it was undisputed that RIGGINS tendered all delinquent payments before AMEX filed its complaint for the full indebtedness. However, that was not the finding of the Third District, quite the contrary, the Third District found that the account was in default. Therefore, RIGGINS citation of the Fifth District s decision in Parisi is inapplicable as the delinquent payments were not tendered but rather the April 2002 payment was insufficient to cure RIGGINS 7

11 delinquencies. Parise v. Citizens Nat l Bank, 438 So.2d 1020, 1022 (Fla. 5 th DCA 1983). IV. THE DISSENTING OPINION WAS NOT INTENDED BY THE FRAMERS FOR CONSIDERATION BY THE SUPREME COURT S DETERMINATION OF DISCRETIONARY JURISDICTION. In Justice Boyd s dissenting opinion in Jollie v. State he outlined the public discussion, the framers of the 1980 amendment of the applicable rule regarding jurisdiction, as well as other legal constitutional experts told the public the effect the amendment would have if adopted. Jollie v. State, 405 So.2d 418, 420 (Fla. 1981). One of the intents expressed by this Court was that per curiam decisions rendered without opinion, regardless of the existence of a concurring or dissenting opinion, even if same was a comprehensive opinion which recited the facts extensively and concluded that the trial court had erred, would not give rise to a matter that this Court should review under such jurisdiction. Id. CONCLUSION This Court should deny discretionary jurisdiction as the per curiam opinion contains no point of law that conflicts with an opinion of this Court or another district court. 8

12 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Answer Brief was furnished via U.S. Mail to Catherine A. Riggins, Esq. at N.W. 28 th Place, Miami Gardens, FL on this 3 rd day of March, By: Steven M. Canter, Esq. Attorney for Appellee Florida Bar No.: Borack & Associates, P.A. P.O. Box Pembroke Pines, FL Tel. (954) CERTIFICATE OF COMPLIANCE The undersigned hereby certifies, in accordance with Fla.R.App.P (a)(2), that the foregoing Answer Brief of Appellee has been prepared in Times New Roman 14-point font. By: Steven M. Canter, Esq. Attorney for Appellee Florida Bar No.: Borack & Associates, P.A. P.O. Box Pembroke Pines, FL Tel. (954)