STIPULATED CONSENT FINAL JUDGMENT

Transcription

1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA THE CONSUMER LAW GROUP, P.A., AMERICAN DEBT NEGOTIATORS, INC., MICHAEL L. METZNER, an individual, RAN BARNEA, an individual, DANIEL T. POST, an individual, Plaintiffs/Defendants-in-Counterclaim, vs. Case No CA000567MB OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS, STATE OF FLORIDA, Defendant/Plaintiff-in-Counterclaim ' STIPULATED CONSENT FINAL JUDGMENT The Office of the Attorney General, Department of Legal Affairs, State of Florida and American Debt Negotiators, Inc., Ran~ Bamea, and Daniel T. Post (collectively, the "ADNI Defendants") and Betuoch Management Venture Corporation, hereby agree and stipulate that this Court has jurisdiction over the ADNI Defendants and Betuoch Management ' Venture Corporation and the subject matter of this action pursuant to the provisions of the Florida Deceptive and Unfair Trade Practices Act, Chapter 501, Part II, Florida Statutes ("FDUTPA") and that venue is proper in this Court in that the actions at issue took place in or affected more than one judicial circuit in the State of Florida. The ADNI Defendants and Betuoch Management Venture Corporation having agreed and stipulated to the entry of this Consent Final Judgment ("Judgment"), the findings of fact set forth below, and that this Court has jurisdiction to enter this Judgment in this matter, and the Court having reviewed the file and necessary papers, the Court makes the following findings: Initials& ~

2 A. Defendant/Plaintiff-in-Counterclaim, Office of the Attorney General, Department of Legal Affairs, State of Florida (the "Department") is an agency of the State of Florida and the enforcing authority under the Florida Deceptive and Unfair Trade Practices Act, Florida Statutes Section et seq. B. Plaintiff/Defendant-in-Counterclaim, Ran Bamea ("Bamea") is an individual over the age of 18 and is an authorized Officer and owner of American Debt Negotiators, Inc. ("ADNI"). C. Plaintiff/Defendant-in-Counterclaim, Daniel T. Post ("Post") is an individual over the age of 18 and is an authorized Officer and owner of ADNI. D. Plaintiff/Defendant-in-Counterclaim, ADNI is a Florida for-profit corporation established on or about March 12, 2003 and has maintained a principal place of business at U.S. 441, Suite 250, Boca Raton, Florida E. Betuoch Management Venture Corporation ("BMV") is a Florida for-profit corporation established on or about April 2, 2001 and currently maintaining a principal place of business at U.S. 441, Suite 215, Boca Raton, Florida F. The Counterclaim arose from an investigation wherein the Department determined that an enforcement action served the public interest. The Department had full authority to bring this action. G. The award of injunctive relief and other equitable relief is within the jurisdiction of the Circuit Court and the amounts in controversy meet the jurisdictional threshold of the Circuit Court. H. The Department acknowledges by execution hereof that this Judgment constitutes a complete settlement and full release of the Department's civil claims against the ADNI Defendants, solely as to those claims asserted in the Counterclaim filed in this case. The 2 Initials: F/

3 Department further acknowledges by execution hereof that this Judgment constitutes a full release of BMV as to those claims asserted against the ADNI Defendants in the Counterclaim. The Department agrees that it shall not proceed with or institute any action or proceeding against the ADNI Defendants or BMV which is inconsistent with the provisions of this Judgment. I. The ADNI Defendants agree that this Judgment constitutes a complete settlement and full release of the ADNI Defendants' claims against the Department. J. In lieu of further litigation and trial, and solely for the purposes of an efficient resolution of all claims and allegations of the ADNI Defendants, the ADNI Defendants stipulate to the entry of this Judgment. BMV also stipulates to the entry of this Judgment. The ADNI Defendants and BMV have made no admissions as to any claim, allegation, conduct or lack thereof, nor has there been any finding of liability or violations of law made by or against any party. The ADNI Defendants and BMV waive any and all rights and defenses that might preclude entry and the full force and effect of this Judgment. K. Nothing herein constitutes approval by the Department of any person or business' past or future business practices. The ADNI Defendants and BMV shall not make any representation contrary to this paragraph. WHEREFORE, based upon the foregoing stipulations and agreement, it ts hereby ORDERED AND ADJUDGED: 1. Final Judgment is hereby entered on the Counterclaim in favor of the Office of the Attorney General, Department of Legal Affairs, State of Florida 1515 North Flagler Drive, Suite 900, West Palm Beach, Florida and against American Debt Negotiators, Inc., State Road 7, Boca Raton, Florida 33428, Ran Barnea, Sundance Lane, Boca Raton, Florida 33428, and Daniel T. Post, Long Lake Drive, Boca Raton, Florida Initials~

4 2. That the ADNI Defendants and BMV are immediately and permanently enjoined, directly or indirectly, from the following: a. Marketing, soliciting, processmg any payment, accepting any payment, engaging in, offering to provide or providing any services, whether directly or indirectly, relating to consumer debt settlement, credit counseling and/or debt management services, whether provided by them or through any entity; b. Soliciting, facilitating, procuring or entering into any contracts or agreements with consumers relating to consumer debt settlement, credit counseling and/or debt management services, whether for such services to be provided by them or through any entity; c. Making any false or misleading representations to consumers in the conduct of any trade or commerce, whether directly or indirectly through any entity or agent including but not limited to telemarketers or lead generators; d. Violating the following statutes: 1. Florida Deceptive and Unfair Trade Practices Act, as contained m Florida Statutes, Chapter 50 l, Part II; n. Florida Telemarketing Act, as contained in Florida Statutes, Chapter 501, Part IV; 111. Florida Statutes Section , regarding Misleading Advertising; and 1v. Telemarketing Sales Rule, 16 C.F.R , et. seq. relating to debt relief services. 3. It should not be considered a violation of Subsections 2a. and/or 2b. of this Judgment for ADNI Defendants and/or BMV to take all commercially reasonable steps to wind 4 Initials: 1/1 J r

5 down their business in a manner that is consistent with industry standards and/or in the best interest of consumers. Any transactions conducted in furtherance of winding down operations shall be conducted at arms-length with independent third-party entities or persons who have no affiliation or connection with ADNI Defendants or BMV, financial or otherwise. 4. For three years, beginning one year following the date of this Judgment and then annually thereafter, the ADNI Defendants and BMV must submit a compliance report, sworn under penalty of perjury, as follows: a. ADNI and BMV must each ( 1) identify its primary physical, postal and addresses, its telephone number, as designated points of contact, which representatives of the Department may use to communicate with ADNI or BMV; (2) identify ADNI's and BMV's affiliated entities, if any, by their names, telephone numbers and physical, postal, and addresses; (3) describe the activities of its business and each affiliated entity, if any, including the goods and services offered, the means of advertising, marketing and sales to consumers and the involvement of ADNI and BMV (which Bamea and Post must describe if they know or should know due to their involvement), and (4) identify the sources of income of itself and each affiliated entity, if any, including the name, telephone number and physical, postal, and addresses of each source as well as the percentage of income each source contributes to the business, except ADNI and BMV shall not be required to respond to this subpart (4) as to each individual consumer; b. Bamea and Post (the "Individual Defendants") must (I) identify their telephone number, and their physical, postal, and addresses; (2) identify any business for which each Individual Defendant is involved or performs 5 Ini tial s :~

6 services, whether as an employee or otherwise, and any entity in which each Individual Defendant has any ownership interest; and (3) describe in detail each Individual Defendant's involvement in each such business, including title, role, responsibilities, participation, authority, control, and any ownership; c. The ADNI Defendants and BMV must provide notice to Plaintiff of the filing of any bankruptcy petition, insolvency proceeding, or similar proceeding by or against the ADNI Defendants or BMV within 14 days of its filing until the expiration of the reporting period set forth in paragraph 3, supra ; and d. Unless otherwise directed by the Department's representative in writing, all submissions to the State of Florida Office of the Attorney General must be sent to: Katherine Kiziah, Assistant Attorney General, Consumer Protection Division, Office of the Attorney General State of Florida, 1515 North Flagler Drive, 9 1 h Floor, West Palm Beach, FL The ADNI Defendants must fully cooperate with representatives of the Department in this case by providing truthful and complete information, evidence, and testimony when reasonably requested by the Department for the purpose of concluding this matter against the remaining Defendants. Barnea and Post must appear, and ADNI and BMV must cause its officers, employees, representatives, or agents to appear, for deposition and trial that a representative of the Department may reasonably request upon 3 days written notice, or other reasonable notice, at such places in Palm Beach County, Florida and reasonable times as the Department's representative may designate, without the service of a subpoena, except no Individual Defendant or corporate representative shall be required to appear after noon on Friday or during the weekends. 6 Initials:!{! ( J P

7 6. The ADNI Defendants and BMV shall not destroy, mutilate, conceal, alter, or dispose of any of the ADNI Defendants' and BMV' s books, records, contracts, financial records, consumer files and financial information reasonably sufficient to establish compliance with the provisions of this Judgment, regardless of the manner in which it is stored, for a period of two (2) years from the date of this Judgment. At any point during the two (2) year retention period set forth herein, the ADNI Defendants and BMV shall make all books and records reasonably sufficient to establish compliance with the provisions of this Judgment available to the Department within seven (7) business days of any reasonable request. 7. The ADNI Defendants are jointly and severally liable and are ordered to pay consumer restitution in the amount of $425, ("Monetary Amount"), for which let execution issue forthwith. The Monetary Amount shall be paid to the Richman Greer, P.A. Trust Account as follows: (a) $200,000 paid simultaneously with the ADNI Defendants' execution of this Judgment; and (b) the remaining balance of $225,000 paid in full on or before May 15, ADNI Defendants' counsel shall hold the Monetary Amount in escrow until the Court enters this Judgment. By May 20, 2015, or within 72 hours of ADNI Defendants' counsel's receipt of service of this Judgment executed by the Court, whichever is later, counsel shall make payment to the Department by wire transfer, certified funds or cashier's checks, payable to the Department of Legal Affairs Escrow Fund, and, if applicable, shall be sent to Katherine Kiziah, Assistant Attorney General, Office of the Attorney General, Consumer Protection Division, 1515 North Flagler Drive, West Palm Beach, Florida Upon receipt, the Monetary Amount shall be deposited into the Department of Legal Affairs Escrow Fund, in accordance with Section (1 ), Florida Statutes for distribution to consumers according to the sole business judgment of the Department. In the event actual restitution for complainants exceeds the Monetary Amount, then the Monetary Amount will be distributed pro-rata to the 7 Initials:r/ J!/'

8 complainants determined by the Department to be eligible for restitution. In no event shall any individual consumer receive more than the amount they are actually owed. If any restitution monies remain after the distribution of the Monetary Amount, the Department will deposit the remaining monies into the Department of Legal Affairs Revolving Trust Fund and it shall be used to defray the costs of restitution distribution and any attorneys' fees and costs incurred in this matter. 8. The ADNI Defendants shall dismiss with prejudice the Complaint against the Department within ten ( 10) days of entry of this Judgment by the Court. 9. It is further ordered and adjudged that upon receipt the Department shall file in the public records of Palm Beach County, and provide a copy of same to counsel for the ADNI Defendants, a properly executed full and unconditional Satisfaction of Judgment within five (5) business days of receipt of the Monetary Payment. 10. It is further ordered and adjudged that ADNI Defendants-in-Counterclaim ADNI, CLG, Barnea and Post shall each complete under oath Florida Rule of Civil Procedure Form (Fact Information Sheet), including all required attachments, and serve it on the Department c/o Katherine Kiziah, Esq., within 45 days from the date of this Judgment, unless the Judgment is satisfied or post-judgment discovery is stayed. 11. Neither the ADNI Defendants nor BMV shall affect any change in the form of doing business or the organizational identity of any of the existing business entities or create any new business entities as a method of avoiding the terms and conditions set forth in this Judgment. 12. This Judgment is continuing m nature and shall be binding on any and all successors or assigns of the ADNI Defendants and BMV. 8 Initials:d ~

9 13. This Judgment is not a waiver of any private rights of any person or release of any private rights, causes of action, or remedies of any person against the ADNI Defendants, BMV or any other person or entity. Notwithstanding any other provision of this Judgment, nothing herein shall be construed to impair, compromise or affect any right of any government agency other than the Office of the Attorney General for the State of Florida relating to the operative facts at issue in this action. 14. Nothing herein shall affect the ADNI Defendants' or BMV's (a) testimonial obligations, or (b) right to take legal or factual positions in defense of litigation or other legal proceedings to which the Department is not a party. This Judgment shall not be considered admissible evidence in any proceeding in any jurisdiction, other than to enforce its terms in this Court. 15. Any failure to comply with the terms and conditions of this Judgment is by statute prima facie evidence of a violation of Chapter 501, Part II, Florida Statutes, and will subject the party who failed to comply with the terms and conditions of this Judgment to any and all civil penalties and sanctions authorized by law, including attorneys' fees and costs. In the event that a court of competent jurisdiction makes a determination that a violation of any provision of this Judgment has occurred, then the party or parties who failed to comply with the terms and conditions of this Judgment shall be jointly and severally liable for additional civil penalties, as well as any additional attorneys' fees and costs, and other relief as may be allowed by law. This Court retains jurisdiction of this case to enforce the terms of this Judgment and enter any further Orders as may be necessary to ensure compliance with this Judgment. 16. Venue for any matter relating to or arising out of this Judgment shall be in Palm Beach County, Florida. 9 InitialsL() 7/ /

10 17. The Parties jointly participated in the negotiation of the terms in this Judgment. Except as ordered or agreed herein, the ADNI Defendants and BMV shall each be responsible for their own attorneys' fees and costs of litigation. 18. This document is signed in anticipation of this Judgment being submitted to the Court for approval, without necessity of hearing, which is hereby WAIVED by the ADNI Defendants and BMV. The signatures below indicate the ADNI Defendant's and BMV's consent and agreement to this Judgment. SIGNATURES FOLLOW ON SEPARATE PAGES. 10 Initials~ () -p

11 AGREED TO: RAN BARNEA, Individually, By : /2.!3~~ Date: tt/t1/rr STATE OF FLORIDA ) COUNTY OF PALM BEACH ) B~FORE ME, an officer duly authorized to take acknowledgments in the State of Florida, f:otj & 2tJM personally appeared, individually, and as authorized agent of the referenced entities. He acknowledged before me that he executed the foregoing instrument for the purposes therein stated on the /r day of {J;Pe/1, 2015 and that each above statement is true and correct. I Personally known 2{ or Produced Identification --'-l- 1hLJ ; f (check one) Type of Identification Produced:.:"~-...~-~~'/t Subscribed to before me this ft day of fb,e /I,_ _ I c... c~ ( 2-;t,'.~ Gffj A«(])) ;(print, type, or stamp commissi-oned Notary Public) 11 lnitials:lll J Y

12 STATE OF FLORIDA ) COUNTY OF PALM BEACH ) ~EFORE ME, an qfficer duly authorized to take acknowledgments in the State of Florida,!)!ltlif I ""'7- / }z.g,j- personally appeared, individually, and as authorized agent ofthe referenced entities. He acknowledged before me that he executed the foregoing instrument for the purposes therein stated on the H_ day of!jte i I, 2015 and that each above statement is true and correct. ' Personally known_!l or Produced Identification (check one) Type of Identification Produced:.t<-fJD..e:. 14L t Subscribed to before me this lr_ day of Jfl-il '2015. /an-e--lf~~ ) print, type, or stamp commissioned Notary Public) 12 Initia l s:~ 0 J/

13 AMERICAN DEBT NEGOTIATORS, INC. By Q h/ / /p(?/(/ "' ("_,.; STATE OF FLORIDA ) COUNTY OF PALM BEACH ) BEFORE ME, an officer duly authorized to take acknowledgments in the State of Florida, ltlii\jte'! I G.:. I- personally appeared, individually, and as authorized agent ot>tl1e referenced entities. He acknowledged before me that he executed the foregoing instrument for the purposes therein stated on the /7- day of JJp!-//, 2015 and that each above statement is true and correct. 1 Personally known----,(_ or Produced Identification (check one) Type ofldentification Produced: p/;q --~7~ ~ Subscribed to before me this!t day of!lj!-t'l ' Q<tlttt b L-ft-J )fifi)'--- - (pfint, type, or stamp commfssion'ed Notary Public) 13

14 STATE OF FLORIDA ) COUNTY OF PALM BEACH ) BEFORE ME, an officer duly authorized to take acknowledgments in the State of Florida, i'il-n/1(?/ I fp<s/j- personally appeared, individually, and as authorized agent offhe r~ferenced entities. He acknowledged before me that he executed the foregoing instrument for the purposes therein stated on the JL day of II Pit./, and that 1 each above statement is true and correct. Personally known i or Produced Identification (check one) Type of Identification Produced: -L:::.f.;;L-4.' / Subscribed to before me this /rday of ~,){:.// '2015.-==:::-::----- (pyint, type, or stamp commissioned'notary Public) 14 Initi a ls :~ J;r

15 OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF FLORIDA: By: c ;'/, 1- A\ t' fl/"--. I \J... Patricia A. Conners Deputy Attorney General Department of Legal Affairs OFFICE OF THE ATTORNEY GENERAL 1 07 W Gaines Street Tallahassee, FL Dated: c..,~f-/...,3 :o, o 7,_ /:-'--l ='J- By (~ ~atherine Kiz;ian Florida Bar No.: Assistant Attorney General 1515 North Flagler Drive, 9th Floor West Palm Beach, FL (5 61) (561) facsimile Katherine.Kiziah@myfloridalegal.com Dated: 1.( I e):-/ /I S 15 Initia ls: _

16 ENTRY OF JUDGMENT SO ORDERED. Approved and Entered in Chambers in Palm Beach County, Florida this \ ~ d ay of {'{\[U;\ "d-ol S., I By: /'d&!_!hd- Th~ Honorable Petel D. Blanc Circuit Court Judge Copies furnished to: Katherine A Kiziah, Assistant Attorney General Primary Katherine. Kiziah@myfloridalegal.com Secondary Kavita.Braun@myfloridalegal.com Sarah L. Shullman, Assistant Attorney General Primary Sarah.Shullman@myfloridalegal.com Secondary Brenda.Kellman@myflm idalegal.com Office of the Attorney General Consumer Protection Division 1515 North Flagler Drive, Suite 900 West Palm Beach, Florida Counsel for the Office of the Attorney General, State of Florida Gerald Richman grichman@richmangreer.com Gary Betensky gbetensky@richmangreer.com Richman Greer, P.A. One Clearlake Center, Suite Australian A venue South West Palm Beach, FL Counsel for American Debt Negotiators, Inc., Ran Barnea, Daniel T. Post David L. Ferguson, Esq. ferguson@kolawyers.com Jonathan M. Streisfeld, Esq. streisfeld@kolawyers.com Seth D. Haimovitch, Esq. haimovitch@kolawyers.com 16 Initials: 111

17 '. '. Secondary Kopelowitz Ostrow Ferguson Weiselberg 200 SW 1st A venue, Suite 1200 Fort Lauderdale, FL Michael L. Metzner, Esq. michael.metzner@gmail.com Counsel for Michael Metzner and the Consumer Law Group 17 Initials: /11