Case No CA000567MB. ~:r~:~~~~~~~galaffairs,

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. OFFICE OF THE ATTORNEY GENERAL, ~:r~:~~~~~~~galaffairs, Defendant/Plaintiff-in-Counterclaim. Case No CA000567MB CLERK CLOSE FILE STIPULATED CONSENT FINAL JUDGMENT AS TO PLAINTIFF/COUNTER DEFENDANTS, THE CONSUMER LAW GROUP, P.A., AND MICHAEL L. METZNER Plaintiffs/Defendants-in-Counterclaim, The Consumer Law Group, P.A., and Michael L. Metzner (the "CLG Defendants"), along with Defendant/Plaintiff-in-Counterclaim, Office of the Attorney General, Department of Legal Affairs, State of Florida (collectively, the CLG Defendants and the Department are hereinafter referred to as the "settling parties"), hereby agree and stipulate that this Court has jurisdiction over the parties 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 settling parties 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:

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, The Consumer Law Group, P.A. ("CLG"), is a Florida law firm established on or about November 9, 2007 and has maintained a principal place of business at U.S. 441, Suite 250, Boca Raton, Florida C. Plaintiff/Defendant-in-Counterclaim, Michael L. Metzner ("Metzner") is an individual over the age of 18 and is a licensed Florida attorney, President, Registered Agent and owner of CLG. D. 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. E. 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. F. The Department acknowledges by execution hereof that this Judgment constitutes a complete settlement of the Department's civil claims against the CLG Defendants, which claims were asserted in the Counterclaim filed in this case. The Department agrees that it shall not proceed with or institute any civil action or proceeding against the CLG Defendants which is inconsistent with the provisions of this Judgment. G. The CLG Defendants agree that this Judgment constitutes a complete settlement and full release of the CLG Defendants' claims against the Department. 2

3 H. In lieu of further litigation and trial, and solely for the purposes of an efficient resolution of all claims and allegations of the parties, the settling parties stipulate to the entry of this Judgment. The settling parties have made no admissions as to any conduct or lack thereof, nor has there been any finding of liability or violations of law made by or against any party. The settling parties waive any and all rights and defenses that might preclude entry and the full force and effect of this Judgment. I. Nothing herein constitutes approval by the Department of any person or business' past or future business practices. The CLG Defendants shall not make any representation contrary to this paragraph. WHEREFORE, based upon the foregoing stipulations and agreement, it 1s 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 The Consumer Law Group, P.A., U.S. 441, Suite 250, Boca Raton, Florida and Michael L. Metzner, 4566 NW 7th Place, Deerfield Beach, Florida Defendant The Consumer Law Group, P.A. shall be permanently ENJOINED from: a. engaging in consumer-debt related services, whether secured or unsecured, including debt settlement services, debt management services, credit counseling services, or any other service related to the consolidation, invalidation, reduction or dispute of consumer debts, either directly or indirectly, other than those activities requested by existing clients; 3 lnihal/1!1:2fz-

4 b. representing and/or soliciting through advertisement and/or oral communication, either directly or indirectly, that it offers, provides or otherwise renders consumer-debt related services, whether secured or unsecured, including debt settlement services, debt management services, credit counseling services, or any other service related to the consolidation, invalidation, reduction or dispute of consumer debts, either directly or indirectly; and c. Charging, collecting or receiving any further fees, directly or indirectly, relating to consumer debt settlement, credit counseling and/or debt management services, except relating to debt management consumers enrolled prior to execution of this Judgment in compliance with applicable law. 3. Defendant Metzner, except in his capacity as an attorney or counselor at law engaged in the practice of law, including, by way of example and without limitation, as an attorney through Michael L. Metzner, P.A., so long as such practice of law is performed in full compliance with the Rules Regulating the Florida Bar, shall be permanently enjoined from: a. engaging in consumer-debt related services, whether secured or unsecured, including debt settlement services, debt management services, credit counseling services, or any other service related to the consolidation, invalidation, reduction or dispute of consumer debts, either directly or indirectly; b. representing and/or soliciting through advertisement and/or oral communication, either directly or indirectly, that he offers, provides or otherwise renders consumer-debt related services, whether secured or unsecured, including debt settlement services, debt management services, 4 IniH I~

5 credit counseling services, or any other service related to the consolidation, invalidation, reduction or dispute of consumer debts, either directly or indirectly; c. accepting, receiving or otherwise obtaining payment from consumers for consumer-debt related services, whether secured or unsecured, including debt settlement services, debt management services, credit counseling services, or any other service related to the consolidation, invalidation, reduction or dispute of consumer debts, either directly or indirectly; and d. charging, collecting or receiving any further fees, directly or indirectly, relating to the negotiation, settlement, management, or adjustment of consumer debts. 4. Defendant Metzner is permanently enjoined from any acts or practices violating the following statutes: a. Florida Deceptive and Unfair Trade Practices Act, as contained in Florida Statutes, Chapter 501, Part II; b. Florida Telemarketing Act, as contained in Florida Statutes, Chapter 501, Part IV; c. Florida Statutes Section , regarding Misleading Advertising; d. Chapter 817, Part III, Credit Service Organizations; e. Chapter 817, Part IV, Credit Counseling Services; and f. Telemarketing Sales Rule, 16 C.F.R , et. seq. relating to debt relief services. 5. The CLG Defendants shall not destroy, mutilate, conceal, alter, or dispose of their books, records, contracts, financial records, consumer files and financial information reasonably 5 Initialsj(/J.f

6 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, Defendants-in-Counterclaim shall make all books and records reasonably sufficient to establish compliance with the provisions of this Judgment available to the Department within five (5) business days of any reasonable request. Notwithstanding the above, Defendant-in-Counterclaim Metzner is not required by this provision to disclose any attorney-client privileged records or communications but rather, if any such records or communications are requested by the Department, Metzner shall prepare a privilege log as to which it is acknowledged and agreed the Department reserves all rights to challenge in this Court should it deem such challenge is warranted. 6. The CLG Defendants hereby consent to the entry of judgment and are hereby ordered to pay consumer restitution in the amount of $125, ("Monetary Amount"), jointly and severally, for which let execution issue forthwith. The Monetary Amount shall be paid by wire transfer, certified funds or cashier's checks, payable to the Department of Legal Affairs Escrow Fund, c/o Katherine Kiziah, Assistant Attorney General, Office of the Attorney General, Consumer Protection Division, 1515 North Flagler Drive, Suite 900, West Palm Beach, Florida Upon receipt, the check(s) 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 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, 6 Initfa7'/14--

7 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. CLG hereby agrees to assign its right of receipt to remaining debt restructuring fees to the Department and accordingly, any payments received shall be credited towards the Monetary Amount. 9. The CLO Defendants shall dismiss with prejudice the Complaint against the Department within ten (10) days of entry of this Judgment by the Court. 10. It is further ordered and adjudged that within five (5) business days of receipt of final payment, the Department shall file and record in the public records of Palm Beach County, and provide a copy of same to counsel for the CLG Defendants, a properly executed full and unconditional Satisfaction of Judgment. 11. Acceptance by the Office of the Attorney General shall be established by the signature of the Deputy Attorney General. The receipt by the Office of the Attorney General of any monies pursuant to the Judgment does not constitute acceptance by the Office of the Attorney General, and any monies received shall be returned to Settlement Parties if this Settlement Agreement is not accepted and executed by the Deputy Attorney General. 12. The Office of the Attorney General's agreement to this Judgment is expressly premised upon the truthfulness, accuracy and completeness of the CLO Defendants' sworn financial statements submitted to the Department, signed under penalty of perjury. This sworn financial statement includes material information upon which the Department relied in negotiating and agreeing to this Judgment. If the Department learns that The Consumer Law Group, P.A. and/or Michael Metzner's financial statement failed to disclose any material asset or materially misstated the value of any asset, or made any other material misstatement or omission, 7 Initials~

8 such disclosure(s) or non-disclosure(s) will be deemed a failure to comply with the terms and conditions of this Judgment and the Defendant(s) violating this provision shall be liable as described in paragraph 18 below. 13. It shall not be a violation of paragraph 2, 3, or 4 of this Judgment for the CLG Defendants to take all commercially reasonable steps to wind down CLG's 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 armslength with independent third-party entities or persons who have no affiliation or connection with the CLG Defendants, financial or otherwise. I 4. The CLG Defendants shall not 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. 15. This Judgment is continuing in nature and shall be binding on any and all successors or assigns of the CLG Defendants. 16. 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 CLG Defendants 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. 17. Nothing herein shall affect the parties (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 on any proceeding in any jurisdiction, other than to enforce its terms in this Court. 8 Initiol'

9 18. Any failure to comply with the terms and conditions of this Judgment, except for the payment provision contained in paragraph 6, is by statute prima facie evidence of a violation of Chapter 501, Part II, Florida Statutes, and will subject the Defendant(s)-in-Counterclaim 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 Defendant(s)-in-Counterclaim who failed to comply with the terms and conditions of this Judgment shall be jointly and severally liable for civil penalties, as well as any additional attorneys' fees and costs, and other relief as may be allowed by law. 19. 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. 20. The settling parties jointly participated in the negotiation of the terms articulated in this Judgment. Except as ordered or agreed herein, the parties shall each be responsible for their own attorneys' fees and costs of litigation. 21. 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 all settling parties. The signatures below indicate the parties' consent and agreement to this Judgment. SIGNATURES FOLLOW ON SEPARATE PAGES. 9 lnitialtl/-

10 AGREED TO: TH~WGRO. UP,P.A., - By: 4'J /92_,~;ZC Michael L. Metzner, Pre~ Registered Agent STA TE OF FLORIDA ) COUNTY OF PALM BEACH ) FO, an 9fn9er duly authorized to take acknowledgments in the State of Florida, 't?e?. { - /~,:/Z. ~ personally appeared, individually, and as authorized agent of e referenced en ities. He acknowledged ~re me that e executed the foregoing instrument for the purposes therein stated on the ~ day of,4, 2015 and that each above statement is true and correct. Personally known or Produced Identification L_(check one) Type of Identification Produced: Y-+-' I /a '-'-. Sub cribed to before me this ~~ay of L, MTA M WRteHT...,... of ftoflda C1Hl1 t1 FF2t17M My CCMlll. &,lrn Mii tt, Nal8yAan. SIGNATURES CONTINUE ON FOLLOWING PAGES. 10 Initials: ---

11 STATE OF FLORIDA ) COUNTY OF PALM BEACH ) BE 0.1.}E ME, an officer duly authorized to take acknowledgments in the State of Florida, Jc O... ( '&;lz/jel personally appeared, individually, and as authorized agent of e referenced enf ies. He acknowledged.ie.t re me th~ executed the foregoing instrument for the purposes therein stated on the -12.!.:..!fay of f-v, 2015 and that each above statement is true and correct. Personally known or Produced Identification (check one) Type of Identification Produced: ~---~,._. _ Subscribed to before me this 6~ay of ~~) kfsrint, type, or stamp &immissioned Notary Public)..IMITA II WRIGHT _, JIMlc lt111 ol Florida C1Hlllllft" ff C-. l..., 11, MallryAan. 11 Initials:

12 OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF FLORIDA: By: Dated: Patril ia A. C~nners Deputy Attorney General Department of Legal Affairs OFFICE OF THE ATTORNEY GENERAL 107 W Gaines Street Tallahassee, FL s- / 11 (is- By:~.. I&l1Jil1?JciZiah Florida Bar No.: Assistant Attorney General 1515 North Flagler Drive, 9th Floor West Palm Beach, FL (561) (561) facsimile Katherine.Kiziah@myfloridalegal.com Dated: 5 } Ce i /'5 ' 12 Initials: - --

13 ENTRY OF JUDGMENT SO ORDERED. Approved and Entered in Chambers in Palm Beach County, Florida this ~day of._ffi _ ---'-'CU ' _, d--0 IS I By: ~// The Honorable Peter D. Blanc Circuit Court Judge Copies furnished to: David L. Ferguson 1: Ferguson@kolawyers.com 2: michael.metzner@gmail.com Jonathan M. Streisfeld 1: streisfeld@kolawyers.com Kopelowitz Ostrow Ferguson Weiselberg 200 SW 1 51 Avenue, Suite 1200 Fort Lauderdale, Florida Michael L. Metzner, Esq. michael.metzner@gmail.com Counsel for Michael Metzner and the Consumer Law Group 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@myfloridalegal.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 13 Initials: - - -