Opposition to Motion to Dismiss

                      IN THE UNITED STATES DISTRICT COURT
                          MIDDLE DISTRICT OF FLORIDA
                             FT. MYERS DIVISION
_________________________
                              )
SHERI PATRIOT,                )
 Petitioner pro se            ) Case No. 2:07-cv-372
                              )
            vs.               )       
                              ) Opposition to Motion to Dismiss
UNITED STATES OF AMERICA,     )         
AMSOUTH BANK,                 )    
 Respondents                  )
                              )       
______________________________)

COME NOW, Plaintiffs, pro se, Warren T. Barry and Sheri Redeker-Barry, in opposition to the Motion to Dismiss and state the following:

The elements of the causes of action, have been explained two times in plain understandable English. They were explained in the original Complaint and again in the Amended Complaint. Perhaps, the language used was not ‘legalese’ or courtroom perfect, but the explanation was clear and precise. There was nothing vague or ambiguous. Plaintiffs are not interested in playing word games with the Defendants, and they will not be intimidated or bullied. It is clear that the Defendants are unable to make a responsive pleading, not because they do not understand the cause of actions, but rather due to the fact that they have no defense for their bad behavior, their violation of Florida Statute 655.059 (1)(e), and their negligent misrepresentation on the internet, just to name a few of the causes of actions.
Defendants know better than anyone, including the pro se Plaintiffs, that a valid contract did exist between the Parties. The Plaintiffs’ signature on the ‘front’ of the AmSouth Account Package executed said contract. Plaintiffs read both the ‘front’ and the ‘back’ of the Account Package which constitutes said contract. Defendant implies there are obligations imposed upon Plaintiffs and conditions precedent to bringing an action for breach of contact. Plaintiffs are unaware of any obligations and the condition precedent to filing a complaint against the bank certainly should not apply to misrepresentation on the internet. The ARBITRATION AND WAIVE OF JURY TRIAL mentioned on the ‘back’ of the Account Package would have nothing to do with the misrepresentation on the internet. As stated in prior filings, a contract did exist and Count I is valid.
It is completely ludicrous for Defendants to plead that there is no fiduciary duty owed to a depositor entrusting money with their bank. Plaintiffs firmly believe that when AmSouth accepted Plaintiffs’ money, they also accepted ‘the trust’ as well. AmSouth never loaned any money to Plaintiff, Sheri Redeker-Barry. AmSouth never was her creditor and always owed Ms. Barry a fiduciary duty. It is a fair statement that if AmSouth depositors were told the bank did not owe them a fiduciary duty, there would certainly be a ‘run on the bank’. Count II is completely valid.
If Defendant is correct and there is no law requiring a bank to protect its customers from invasion of privacy, why does AmSouth make misleading statements on its website stating the bank will protect the privacy of its customers. It is very odd that Defendants pledge to protect privacy rights of their customers if they do not need to do such a thing. Plaintiffs attribute such a pledge on the part of the bank as an attempt to gain the trust of an unsuspecting public to procure more customers and to make more money for the bank.
In number 7 of Defendant’s Motion to Dismiss, Defendant states “the law is clear that where a contract exists, a tort action will lie only for ‘intentional or negligent acts considered to be independent from acts that breached the contract.” In this case, Plaintiff agrees with Defendant. The AmSouth Account Package, the valid contract, was breached when the bank unnecessarily complied with the unenforceable summons. However, the intentional and negligent act of the bank misrepresenting on the internet, was certainly independent from the act of compliance which was the breach of the contract. Therefore, this ‘tort’ action, Count III, is valid.
Now, with regard to number 8 of Defendant’s Motion to Dismiss, Plaintiff finds it difficult to believe Defendant even read Count IV. The misrepresentation on AmSouth’s website has very carefully been discussed with the Defendant by phone, by written communication, and twice in prior filings. It is a material fact that the bank’s website makes a statement which is not correct.
“As required by law, AmSouth will comply with customer information requests through properly executed court orders…..”

Actions speak louder than words, and the above words couldn’t be further from the truth. That explanation is as specific as is possible.
Finally, Defendants states that they do not know which IRS Summons is at issue in their number 9 of their Motion to Dismiss. Shame on them. There has only been one Petition to Quash with AmSouth Bank for the past two years. Due to that very obvious fact, that statement from the Defendant is more than disingenuous. The pro se Plaintiffs are supposed to be the ‘dummies’, not the Defendant’s council. The Defendant’s council knows exactly which Summons is at issue, and it is apparent to the Plaintiff that Defendant is trying to do everything possible to avoid the truth.

CONCLUSION

WHEREFORE, due to the Defendant’s cavalier posture to the privacy laws of The State of Florida; indifference to protecting the privacy rights of its customers by not keeping its ‘pledge’ to do so as seen in all their marketing materials; breaching their fiduciary duty to the Plaintiffs and negligently and willfully making false representations on their website, the Plaintiffs respectfully move this Court to deny the Motion to Dismiss and order Parties to begin discovery to expedite this case.

 By:____________________________________
       Sheri Patriot, Petitioner, pro se
       1776 Patriot Way
       Cape Coral, FL  33904