American Arbitration Association Response to Claim

8/17/2019 American Arbitration Association Response to Claim

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AMERICAN ARBITRATION ASSOCIATION

Case Number: 01-15-0003-2542

CITIBANK, N.A.,

Claimant,

v.

PATRICIA A. FEELEYRespondent.

____________________/

RESPONSE TO STATEMENT OF CLAIM

Preface

Respondent, Patricia Feeley, has recently suffered medical conditions involving

brain injury. Nevertheless, at this time she has resumed work as a nurse and is

highly functional and able to assist counsel in this matter. Nevertheless, she

cannot recall much about the underlying billings and accounts in this case.

Counsel respectfully represents that at the time he was initially asked to look at

this matter several years ago, Ms. Feeley did not recall this account or any

dealings in her own name with Citibank South Dakota, N.A., the original named

plaintiff in the circuit court civil action from which this arbitration was referred.

In reviewing the original civil action and all the paperwork that was filed through

the time the undersigned entered the case, there was absolutely nothing showing

any agreement or account between Citibank South Dakota, N.A., and Patricia

Feeley. Instead, there were a series of checks written to AT&T by Patricia

Feeley’s late mother, Mary Sullivan. Citibank South Dakota, N.A., claimed that


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these checks were on an account that was governed by a contract which it

attached to the complaint.

The contract attached to the complaint, however, failed to show that Patricia

Feeley signed it or was in any way a party to it. And, as it named Citibank South

Dakota, N.A., as the lender, the most obvious question to be resolved was how

did Citibank South Dakota, N.A., believe it was entitled to receive payments on

an AT&T credit card.

Finally, Mary R. Sullivan, who died in 2007, had suffered a series of what has

been termed “mini-strokes” beginning some time in early 2000 through 2003. It is

respectfully submitted that from this time on, Mary began a gradual and

unnoticed slide into senility.

During the early onset of her condition, she acted independently and was

handling her own checks, bank accounts and perhaps credit cards. Her mental

condition certainly may have been involved with her obtaining and using an AT&T

credit card. In those days, pre-approved cards of all sorts were commonly

pushed out through the mails.

What Patricia Feeley does know about those early days is that she did not herself

reach out to Citibank South Dakota, N.A., nor others for an open line of credit


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card such as what apparently this account was. In any event, without a full audit

of the charges alleged, it is impossible to know the nature and extent of the

account in question—particularly as more recent filings in court by the plaintiff

showed several very large transactions—some being balance transfers—which

Patricia Feeley knows nothing about.

CITIBANK, N.A., FAILURE TO STATE A CLAIM

The Complaint filed in Circuit Court failed to attach the entirety of the operativecontract between the parties as required by Florida Rule of Civil Procedure1.130(a).

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The Complaint does attach documents indicating that AT&T may have hada credit card agreement with Ms. Feeley in that mailings with AT&T’sname on are attached to the complaint, but nothing showing PatriciaFeeley signing or agreeing to any of the terms contained in the contractattached nor is there any way to tell whether the attached contract was in

fact in existence at the time of the alleged lending agreement.

2. Exhibits attached to a pleading become a part of the pleading for allpurposes; and if an attached document negates the plaintiff’s cause ofaction, the plain language of the document will control and may be the

basis for a motion to dismiss. Health Application Systems, Inc. V. HartfordLife, 381 So. 2d 297 (Fla. 1DCA 1980), Affordable Homes, Inc. v Devil’sRun, Ltd, 408 So. 2d 679, 680 (Fla. 1 DCA 1982) (finding a pleadingobjectionable where its allegations are inconsistent with those of an

attached exhibit.). In this case, plaintiff alleges and account stated thatshows nothing to indicate that Citibank, N.A., was ever having businesswith Patricia Feeley.

3.

That Citibank, N.A., may now somehow be in privity with Patricia Feeleyhas not been shown by any pleading in Court or in this arbitration.

4.

If Citibank, N.A. received an assignment of the alleged contractual rights

from the AT&T Mastercard, since it has never plead how it might havecome to own these rights to date, the rights of the parties cannot readilybe determined.


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Unjust Enrichment:

5.

Pursuant to Florida R. Civ. P. 1.130, the Complaint attached documentsindicating that the parties entered into written, express agreements withthe Plaintiffs.

6.

Exhibits attached to a pleading become a part of the pleading for allpurposes; and if an attached document negates the plaintiff’s cause ofaction, the plain language of the document will control and may be thebasis for a motion to dismiss. Health Application Systems, Inc. V. HartfordLife, 381 So. 2d 297 (Fla. 1DCA 1980), Affordable Homes, Inc. v Devil’sRun, Ltd, 408 So. 2d 679, 680 (Fla. 1 DCA 1982) (finding a pleadingobjectionable where its allegations are inconsistent with those of anattached exhibit.).

7. The action for unjust enrichment fails to state a cause of action where it

affirmatively shows that an express contract exists: Williams v. Bear

Stearns & Co., 725 So.2d 397, 400 (Fla. 5th DCA1998), review denied

737 So.2d 500.

Account Stated:

8. It is axiomatic that in order to allege an action for an account stated, thePlaintiffs must have stated the account.

7. In this action, there all the statements of account allegedly sent to PatriciaFeeley are from someone other than Citibank, N.A. and, so there and noallegation that the action is based on a sum certain that she ever agreed

to pay to the plaintiff.

CONCLUSION

Patricia Feeley denies ever having anything to do with Citibank in connection

with the alleged account stated. Nothing provided to this point has been

anything other than unsubstantiated hearsay as no one with any personal

knowledge of the alleged account or the record keeping thereupon has come

forward to this date to say under oath sufficient to support a summary

judgment that Patricia Feeley ever opened this account, asked for it to be

opened or used it herself in any way.


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Wherefore it is respectfully submitted that the Claimant’s claim in arbitration

should be dismissed.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served to MairimA. Morales, 10967 Lake Underhill Road, Unit 125, Orlando, FL 32825;

[email protected] August 11, 2015.

Tim Morell, FBN 382885

PO Box 2811, Palm BeachFl. 33480; e-filing/service:

[email protected] Ph: 561-329-4000/fax 561-422-

4207

Documents

American Arbitration Association Response to Claim