Motion in Opposition to Dismiss

IN THE CIRCUIT COURT OF THE

TWENTIETH JUDICIAL CIRCUIT OF LEE COUNTY FLORIDA

WARREN THOMAS PATRIOT,         ) 
SHERI PATRIOT,                 )
 Plaintiffs pro se,            )  Case No. 07-CA-003824
                               )
        vs                     )
                               )
AmSOUTH BANCORPORATION         ) Motion in Opposition to Dismiss
REGIONS FINANCIAL CORPORATION, )
as successor to                )
AmSOUTH BANCORPORATION         )
   Defendants.

COME NOW, Plaintiffs, Warren and Sheri Patriot, move this Court to deny Defendant’s Motion to Dismiss stating as follows:

1. Pro se Plaintiffs write with layperson vocabulary and beg this Court to be lenient and understand they do not have the advantage of a Law School degree and courtroom experience. Plaintiffs have tried to improve their pleading with more definite statements and Exhibits pursuant to rule 1.140(e), Florida Rules of Civil Procedure. Plaintiffs had every intention of submitting to this Court all necessary documents needed to prove the following causes of action during Discovery: Defendant’s breach of contract and fiduciary duty; Defendant’s negligence, and negligent misrepresentation. Pro se Plaintiffs apologize to this Court and will introduce these documents with this Motion in Opposition.

2. With regard to Count I of the Notice of Complaint, the contract which Defendant has breached is an ‘oral’ contract which was effective the day Plaintiffs opened their individual bank accounts at AmSouth Bank. A copy of the AmSouth Bank account cards are attached as Exhibit A which is made a part thereof of this Motion. Once the bank accounts were opened, the ‘oral’ contract immediately existed between the Parties.

3. With regard to the fiduciary duty owed to Plaintiff as stated in Count II of the Notice of Complaint, perhaps pro se Plaintiffs did not use the correct words in original pleading. However, there can be no question with this Court that any Bank which is entrusted to safe guard a customer’s money, owes that customer a fiduciary duty to protect the customer’s money, and to abide by all the Bank’s Policies, one of which was the Bank’s Privacy Policy. A copy of the pertinent portion of AmSouth Bank’s Privacy Policy is attached as Exhibit B which is made a part thereof of this motion.

Perhaps there is no Florida statute which mandates that a Bank must protect the financial information of its customers, but case law does exist. Barnett Bank of Marion County, N.S. v, Shirey, 655 So.2d 1156 (Fla. 5^th DCA 1995). Plaintiffs believe there is a certain standard of conduct expected and required by the state and federal banking commissions which surely includes not making false representations on the bank website. Defendant’s failure to perform to such standards did proximately cause the injury and the damage to the Plaintiffs.

4. With regard to Count III of the Notice of Complaint, Defendant was clearly in violation of Florida Statute 655.059, which specifically requires ‘any release shall occur only in response to a valid subpoena’. Even though both Defendants are incorporated in the State of Alabama, they do business in the State of Florida and therefore must abide by Florida law. A copy of said statute is attached as Exhibit C which is made a part thereof of this motion.

5. With regard to Count IV of the Notice of Complaint, Defendant AmSouth Bank, had full knowledge that the misrepresentation was false and the summons was not court ordered nor enforceable.

A.   On May 9, 2005 Plaintiff, Sheri Patriot, hand delivered a letter addressed to AmSouth Bank, 8655 College Parkway, Fort Myers, Florida 33919, Attn: Legal Counsel.   Sharon R. Mikosz, Am South Bank Representative, signed for the letter and faxed it to the Legal Department in Birmingham, Alabama. A copy of said letter is attached as Exhibit D which is made a part thereof of this motion.

B.    Am South Bank mailed a response to said letter to Plaintiff on May 12, 2005. A copy of that letter is attached as Exhibit E which is made a part thereof of this motion.

C.   On May 18, 2005 Plaintiff caused a fax to be sent to Anne Choat, Legal Processor, Am South Bank, Birmingham, Alabama. A copy of said fax and the Transmission Report is attached as Exhibit F which is made a part thereof of this motion. Plaintiffs believe they will be able to show this Court that all four elements of negligent misrepresentation were met and occurred.

If Council for Defendant is unable to understand the cause of action and what the Defendant did wrong as stated in Count IV, then Plaintiff will attempt to rephrase for Council’s benefit.

AmSouth Bank advertised online looking for business in an effort to attract more customers and thus, make more money for the Bank. In a certain section of AmSouth Bank’s website, there is a portion dedicated to explain to the general public what policies the Bank follows in their normal business functions. One of those policies is their ‘Privacy Policy’. In the ‘Privacy Policy’ it is stated that the bank “will comply with customer information requests through properly executed court orders, such as garnishments, levies, summons, and subpoenas”. After reading AmSouth’s ‘Privacy Policy’, Sheri Patriot decided to open an account at AmSouth Bank. She felt secure that her deposits and her private banking information would be protected and be kept confidential. When Plaintiff filled out and signed the signature card for her new bank account at the College Parkway Branch office, she discussed that portion of the ‘Privacy Policy’ with a bank representative confirming what Plaintiff had seen on the Bank’s website.

Unfortunately, in the instant case, the pertinent part of that policy was completely false. AmSouth Bank complied with a Third-Party 7609 Summons issued by a Fort Myers Internal Revenue Agent for Sheri Patriot’s individual bank records. That summons was NOT a properly executed court document. A copy of the summons is attached as Exhibit G which is made a part thereof of this motion. The Legal Department at AmSouth Bank was made completely aware of the fact that the summons had no enforcement power as it had not come from any court. They were told this by phone, by letter, by fax and by a Petition to Quash. With all that knowledge, the Bank still complied with the summons, totally against the Plaintiff’s wishes. What is even worse, the Bank complied with the summons in late 2005, before the Petition to Quash was completed.

Further and even more incredulous, AmSouth Bank submitted all of Warren Patriot’s individual bank records to the IRS without ever having received any type of request for ‘his’ records. There is no defense for such flagrant violations of Florida Statute 655.059. Although Plaintiffs do not believe there was really anything vague, ambiguous or unclear as to the cause of action within Count IV of the Notice of Complaint, pro se Plaintiffs hope the above explanation is sufficiently specific regarding the negligent misrepresentation of the Defendant. The last time Plaintiffs checked the Defendant’s website in 2007, the misrepresentation remained the same. It still had not been corrected.

As this Court will observe upon reading the attached Exhibits, Defendant was fully aware of the negligent misrepresentation since May 9, 2005. Defendant was continuously reminded of the negligent misrepresentation many times over the past two years. Specifically, Defendant was reminded when the Legal Department of AmSouth Bank received their copy, as Defendants, of Motions filed with the U.S. District Court, Middle District of Florida, and more recently, as Apelles, in the 11^th Circuit Court of Appeals where the District Court Order denying the Petition to Quash was vacated and remanded on Feb. 22, 2007. Defendant’s counsel should be admonished for even alluding that Defendant did not know about the alleged misrepresentation. Plaintiff told Defendant’s Legal Department about the negligent misrepresentation many times, long before their compliance with the IRS summons and long before they submitted Warren Patriot private and confidential banking information to the IRS. Attached Exhibits D, E, and F prove Defendant had full knowledge of the negligent misrepresentation before they complied. Defendant can not cry ignorance of the facts. Instead, Defendant was arrogant and indifferent to “honoring expectations” of their customer/ Plaintiff as they “pledged” to do near the end of their ‘Privacy Policy’.

WHEREFORE, Plaintiffs, Warren and Sheri Patriot, having shown this Court they clearly have a cause of action with genuine issues of fact, move this Court to deny Defendant’s Motion to Dismiss and to instruct both Parties to continue this case with Discovery.

Certificate of Service

I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed and sent via U.S. Mail on this ______ day of May, 2007 to the following:

John A. Noland and Luis E. Rivera

HENDERSON, FRANKLIN, STARNES & HOLT

P. O. Box 280

Fort Myers, Florida 33902-0280

________________________________ ________________________________

Warren Thomas Patriot, Plaintiff pro se Sheri Patriot, Plaintiff pro se

1776 Freedom Court 1776 Freedom Court

Cape Coral, FL 33904 Cape Coral, FL 33904