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Florida’s Second District Court of Appeal recently addressed an interesting question concerning whether Florida’s Consumer Collection Practices Act applies to an action seeking a deficiency decree. In the situation presented, the appellate court answered the question in the negative.

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In Dyck O’Neal, Inc. v. Kami Ward, Fla. 2d DCA Case No. 2D15-2989 (Fla. 2nd DCA Jan. 27, 2017), the 2nd DCA was presented with the issue of whether compliance with Fla. Stat. § 559.715, a provision of Florida’s Consumer Collection Practices Act (“FCCPA”) that requires written notice of assignment of a consumer debt at least 30 days before any action to collect that debt, is required in a deficiency action following a foreclosure judgment. Specifically, after a final judgment of foreclosure was entered against Ms. Ward and the property was sold at auction for $100, the judgment was assigned to Dyck O’Neal, Inc., which then filed a deficiency action against Ms. Ward. Ms. Ward defended by arguing that she had not received notice of the assignment at least 30 days before the deficiency action was filed. The trial court agreed and granted summary judgment in her favor.

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The appellate court reversed, finding that FCCPA (Fla. Stat. §§ 559.55 – 559.785) did not apply because a deficiency action is not an action to collect a consumer debt on a note, but rather an action to obtain a monetary judgment on a foreclosure judgment.

Because a deficiency action is not an action to collect consumer debt, section 559.715’s [notice] requirement … does not apply.

The Second District’s opinion provides guidance to lenders as to the applicability of FCCPA to deficiency actions and precludes the assertion of this defense in such cases.

 

A trial court may not rely on a legal opinion offered by a party’s expert witness.  Florida’s Third District recently reversed dismissal of a mortgage foreclosure action based on this rule in Citibank, N.A., v. Martin and Jitka Olsak, 3rd DCA Case No. 3D15-1032 (Nov. 30, 2016).

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In Olsak, the borrowers called as a witness at trial a mortgage foreclosure fraud investigator and securitization officer, who was not a lawyer.  He testified that, in his opinion the plaintiff, which was a trust, was not allowed to acquire a promissory note that had been endorsed in blank and that the endorsement on the Olsaks’ note violated certain IRS provisions.  Relying on this opinion, the trial court entered judgment for the borrowers, finding that the plaintiff trust had not acquired an interest in the note or mortgage and, thus, did not have standing to foreclose.

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The appellate court reversed because “even witnesses qualified as experts, generally are precluded from providing testimony in the form of legal conclusions.” It follows that opinion testimony about legal conclusions are inadmissible, so it is reversible error for a trial court to rely on expert opinions to decide questions or law.  Finding that the borrowers’ expert witness offered only legal opinions, not facts, and that the trial court based its rulings on that testimony, reversal was required.  It probably didn’t help that the appellate court found the expert’s testimony to be “often of dubious relevance” and of “questionable probative value.”

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Olsak is a good reminder that, regardless of whether or not expert opinions may be relevant, those opinions are not admissible if they are simply legal conclusions.

 

That look you get when you realize you just bought property at a foreclosure sale that is still subject to liens …

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Foreclosure plaintiffs should take note of the Fourth District Court of Appeal’s recent decision in James Ober v. Town of Lauderdale-By-The-Sea, 4th DCA Case No. 4D14-4597 (Fla. 4th DCA Aug. 24, 2016).  In that case, the Court held that the recording of a lis pendens can “discharge liens that exist or arise prior to the judgment of foreclosure,” but that liens that accrue between entry of the foreclosure judgment and the date of the foreclosure sale are not affected.

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In Ober, after a final judgment of foreclosure had been entered in a prior mortgage foreclosure action, but before the foreclosure sale had been conducted, a municipality recorded a series of liens on the subject real property.  After the property was sold at foreclosure sale, the purchaser sought to quiet title and the municipality sought to foreclose its liens.

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In analyzing the claims, the Fourth District Court of Appeal noted that the relevant statute, Fla. Stat. §48.23, does not provide an end date for a lis pendens.  After considering related statutory provisions and cases that discussed the continuing validity of a lis pendens in other contexts, the Court concluded that a lis pendens terminates “along with the action” or 30 days after the final judgment is entered (assuming an appeal is not timely filed).  Accordingly, the Court rejected the quiet title claim and allowed enforcement of the municipal liens that were recorded and based upon conduct that occurred after the date of the foreclosure judgment.  Foreclosure plaintiffs and those purchasing at foreclosure sales must remember to consider any liens that are recorded after foreclosure judgment has been entered.


David Greene is a commercial litigation partner in Fox Rothschild’s West Palm Beach office.  His practice focuses primarily on banking litigation, real estate litigation, title insurance litigation, and construction litigation. You can reach David at 561-804-4441 or dgreene@foxrothschild.com.

The United States Court of Appeals for the Ninth Circuit, in a recent unpublished opinion in Casault v. One West Bank, FSB, et al., U.S.C.A. 9th Cir. Case No. 14-55494 (Aug. 4, 2016), affirmed the dismissal of the borrowers’class action complaint against various banks, servicers and trustees.  The borrowers in Casault claimed that they relied upon offers to modify loans that were allegedly contained in advertisements, websites and mailings, as well as actions taken after they started the loan modification process, and attempted to assert claims for fraud and improper foreclosure under California law.

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The 9th Circuit found that the borrowers had failed to properly allege their claims.  First, the Court determined that it was not reasonable for the borrowers to rely on the loan modification offers, because those offers did not promise or guarantee a loan modification. Second, the Court found that the foreclosures were based upon the borrowers’ failure to pay, not due to reliance upon misrepresentations or omissions that were allegedly made after they started the loan modification process.  Finally, the appellate court outright rejected the borrowers’ argument that the loan servicer had taken over the loans because it had made advances while the loans were delinquent.

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Many recent appellate opinions throughout the country have made it more difficult for lenders to foreclose mortgages and have even awarded damages to borrowers.  The Casault opinion shows that there is, in fact, a limit to this trend.


David Greene is a commercial litigation partner in Fox Rothschild’s West Palm Beach office.  His practice focuses primarily on banking litigation, real estate litigation, title insurance litigation, and construction litigation. You can reach David at 561-804-4441 or dgreene@foxrothschild.com.

Judge Lorna Schofield has agreed to stay a Fair Credit Reporting Act case until the U.S. Supreme Court issues its highly anticipated ruling in Robbins v. Spokeo, Inc. By entering a stay in Ernst v. Dish Network, LLC, S.D. N.Y. Case No. 12-Civ-8794 (LGS), the Southern District of New York joins several other courts that have agreed to put FCRA cases on hold.  Judge Schofield found that the Spokeo ruling would “likely clarify whether or not the named Plaintiffs and potential class members in [Dish Network] have Article III standing.”  The key issue in Spokeo is whether a mere violation of FCRA, without any alleged concrete harm, is sufficient to confer standing.  Judge Schofield found that the interests of the Court and the public are better served by staying Dish Network and that the potential prejudice in doing so would be minimal.

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The Southern District of New York joins U.S. District Courts from the District of New Jersey, the Northern and Eastern Districts of California, the Middle and Western Districts of Pennsylvania, and the Northern District of Ohio in deciding to take a “wait and see” approach in FCRA cases until the Supreme Court rules in Spokeo.  One notable exception is the Western District of Missouri, which denied a request for stay in Woods v. Caremark PHC, LLC, W.D. Mo. Case No. 4:15-cv-00535-SRB.  However, the Caremark court did base its decision on a case involving a Telephone Consumer Protection Act claim.

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Copyright: flippo / 123RF Stock Photo

The Southern District of Florida has not addressed this specific issue yet, but if Judge Marcia Cooke’s ruling in Boise v. ACE USA, Inc., S.D. Fla. Case No. 15-Civ-21264-Cooke/Torres, is any indication, it would appear that this Court would also be receptive to staying a FCRA case until a ruling is issued in Spokeo.  Judge Cooke, after considering the anticipated brevity of the delay, the lack of prejudice to the plaintiff, and the potentially wasted time, expense and resources, stayed Boise, which involved claims under TCPA, based upon the fact that Spokeo may be dispositive of whether the plaintiff in that case has Article III standing.

The willingness of so many courts to stay FCRA (and even some TCPA) cases is just another indication of the broad impact that the Spokeo ruling is likely to have.


David Greene is a commercial litigation partner in Fox Rothschild’s West Palm Beach office.  His practice focuses primarily on banking litigation, real estate litigation, title insurance litigation, and construction litigation. You can reach David at 561-804-4441 or dgreene@foxrothschild.com.

Liberty Ridge Farm, an upstate New York farm, has recently appealed a $13,000 fine imposed by New York’s Division of Human Rights for refusing to host a lesbian couple’s wedding.  Liberty Ridge’s owners argued that they should not be required to host a lesbian wedding because of their Christian beliefs that marriage is between a man and a woman.

In fact, the farm owners had offered the farm for the reception, but not for the wedding ceremony.  Weddings typically are conducted on the first floor of the farm owners’ home or in an adjacent field.  As such, the farm owners had argued that their home was private and not a place of public accommodation under the New York law.

Administrative Law Judge Migdalia Pares of the Bronx rejected the owners’ argument that the farm and their home was not a place of public accommodation and was therefore not subject to the anti-discrimination provisions of New York’s Human Rights Law.

[Liberty Ridge Farms] is a for profit business and directs its publicity to the general public. … LRF engages in widespread marketing to the general public through advertising at a bridal show and on the internet … LRF is encouraging members of the public to lease the use of its facilities and purchase its services. Thus, there is no exclusivity and LRF is not “distinctly private.

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New York, is one of many states with a public accommodation law the encompasses sexual orientation.   While Florida does not have a state wide public accommodation law that covers sexual orientation, many counties have their own public accommodation ordinances that companies need to be aware of.  In fact, Palm Beach County, Florida recently expanded its public accommodation ordinance to include many more businesses than it previously covered.

The term “public accommodation” is often confusing for small business owners.  But, if you advertise to the public, charge for services, buy or sell goods your business is more than likely a public accommodation.    Although private clubs can be exempt from public accommodation laws, if they offer services to the public (even on a limited basis) they may become a public accommodation as well.

Bottom line, unless you are a priest or a house of worship, declining services to someone on the basis of sexual orientation is likely to bring an expensive lawsuit.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

arbitrationIt is no secret that arbitration has become a common alternative to traditional courtroom litigation.  Arbitration clauses are widely employed in domestic and international commercial contracts.  With the advent of the global economy, contracting parties from different countries often rely on arbitration clauses to select a neutral forum and venue for resolving contract disputes.  And, in both the domestic and international context, contracting parties often favor arbitration because they believe it is a more rational process than a jury trial, while also being faster and less expensive than traditional litigation.  (Speed and cost are usually dependent on the particular rules of the arbitration and the nature of the dispute, however.  These are issues which should be discussed with an attorney prior to agreeing to an arbitration provision.)  Arbitration clauses can also be found in all sorts of consumer contracts, from cell phone agreements to the back of ballpark and movie theater admission tickets.

The popularity of arbitration is buoyed by the fact that the United States and most states have enacted legislation encouraging arbitration on public policy grounds and providing for the recognition and enforcement of arbitral awards.  For example, the Federal Arbitration Act, codified as 9 U.S.C. § 1 (available here or here), was enacted in 1925.  The current version of Florida’s arbitration statute, the Revised Florida Arbitration Code, codified as § 682.01, Fla. Stat., et seq., was enacted in 2013 (available here).

But, at its heart, arbitration is a consensual, contractual procedure.  A party cannot be forced to arbitrate unless it has consented to arbitration.  Unsurprisingly, in many disputes there is an initial dispute over whether the parties have in fact agreed to arbitration.  Often, the plaintiff will file a lawsuit in court seeking a jury trial, and then the defendant will file a motion to compel arbitration, asserting the existence of an arbitration agreement.  Thus, a body of law has grown around the threshold question of “arbitrability,” which is the term used to describe the analysis of whether or not a particular dispute is subject to arbitration.  (The Supreme Court undertook such an analysis of applicable federal law in the case of Rent-a-Center v. Jackson, 130 S.Ct. 2772, 2775 (2010), holding that under the Federal Arbitration Act, courts usually determine the threshold question unless the parties have agreed to refer the threshold question to the arbitrator).

Florida Rules For Arbitrability In Arrasola v. MGP Motor Holdings, LLC

Recently, in the case of Arrasola v. MGP Motor Holdings, LLC, Case No. 3D15-381 (3d DCA August 5, 2015), Florida’s Third District Court of Appeal addressed the issue of who decides threshold questions of arbitrability—the court or the arbitrator—under Florida’s Revised Arbitration Code.  The case involved a dispute centering around the sale of an automobile.  The underlying facts of the disputed transaction are not germane to a discussion of the arbitrability analysis, but the case generally involved tort and statutory claims brought by the purchasers against the auto dealer.  The purchase order for the vehicle had an arbitration clause which provided that any dispute would be referred to arbitration, including any dispute about as to “the validity of this [arbitration] provision.”  The purchasers filed their lawsuit in state court and the auto dealer filed a motion to compel arbitration, which was granted.  The purchasers appealed the trial court’s order granting the motion to compel, contending that the purchase order was invalid for a variety of reasons and thus the arbitration provision was not applicable.

The appellate court boiled down the issue to a question of arbitrability, stating that, “The issue … is not whether the Arrasolas may litigate, rather than arbitrate, their substantive claims against [the auto dealer].  The issue is whether there was an agreement to arbitrate the threshold determination of contract enforceability, termination, abandonment, rescission, or unconscionability.”  The appellate court applied the “gatekeeper” provision of Section 682.02 of the Revised Florida Arbitration Code (§ 682.02, Fla. Stat., available here).  Section 682.02 provides that “the court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate,” but “an arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.”  This seemingly confusing language relates specifically to the question of arbitrability.

In its review, the appellate court first noted that the trial court correctly determined that the arbitration clause was enforceable because there was no evidence of unconscionability with respect to the arbitration clause (notwithstanding any questions regarding the contract as a whole) and it was undisputed that the parties signed the purchase order.  Then, the appellate court noted the important difference between a challenge to the entire contract versus a challenge to just the arbitration provision included within the contract.  The appellate court pointed to Section 682.02 and the Supreme Court decision of Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444-45 (2006) (which had reversed an earlier decision of the Florida Supreme Court), both of which provide that challenges to the entire contract are questions for the arbitrator, whereas challenges to just the arbitration provision are for the court.  The appellate court agreed with the trial court that the Arrasolas’ additional arguments that the entire contract had been terminated or abandoned should be decided by the arbitrator, and confirmed the trial court’s order compelling arbitration.

The Process May Not Be Intuitive, But It Is Mandated By Law

 The result in Arrasola may seem illogical, in that the trial court was allowed to adjudicate the validity of the arbitration clause, but could not adjudicate the greater question of whether the entire contract (which contained the arbitration clause) was enforceable.  On a purely intuitive level, one would think that a successful challenge to the entire contract would void all the provisions of the contract, including the arbitration clause.  But, there is a legal reason, if not a common sense one, for this difference in who may adjudicate the challenges.  This dichotomy is mandated by the language of the Federal Arbitration Act, which was specifically intended to “overcome judicial resistance to arbitration” and “embod[y] the national policy favoring arbitration.”  (Buckeye Check Cashing, at pp. 443.)  Under the Federal Arbitration Act, “as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract.”  (Id., at p. 445.)  This means that, under the law, a contract can be found unenforceable as a whole, but the arbitration clause in the contract will still be enforced so long as the arbitration clause by itself was not the specific result of some sort of improper conduct.  (When might an arbitration provision be subject to challenge, separate from the entire contract, you ask?  Good question.  Examples might include situations in which the arbitration clause was slipped into the final version of an agreement without the other side knowing about it, or the arbitration provision was altered after the agreement was signed, or the provision was buried in fine print or disguised within the agreement so that the party was unaware that the contract contained an arbitration clause.)

Takeaways

The appellate court’s decision in Arrasola is important because it illustrates how courts should apply the new “gatekeeper” language of Section 682.02 of the Revised Florida Arbitration Code, which in turn should make the results of arbitration challenges more predictable.  In particular, Florida law now follows the same analysis as federal law under the Federal Arbitration Act, so challenges to just the arbitration provision will be decided by a trial court, whereas challenges to the validity of the entire contract are referred to the arbitrator.  When considering a contract, or whether to bring a lawsuit or initiate an arbitration to resolve a contract dispute, it is important to consult with an attorney to consider how the arbitration clause, and the contract as a whole, will be reviewed and enforced by the courts or the arbitrator.

Eric A. Bevan is an attorney with the law firm of Fox Rothschild LLP and a member of the firm’s Litigation, Financial Services Industry and Construction practice groups.  He represents clients in the resolution and litigation of complex commercial disputes, including federal and state court litigation as well as alternative dispute resolution methods such as private arbitration and mediation.  You can contact Eric at 561-804-4470 or ebevan@foxrothschild.com.

In a related post, I recently addressed Florida’s Fourth District Court of Appeal’s decision in Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, Inc. d/b/a Better Business Bureau of Southeast Florida and the Caribbean, Case No. 4D13-3916. For those involved in consumer bureau litigation, the most exciting part of the Court’s opinion was obviously the Court’s holding that a local Better Business Bureau (“BBB”)  affiliate was not protected by First Amendment privilege when a claim concerns the BBB’s methods, business conduct, or representations. However, the Court also shed some new light on Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”).

As a matter of background, the Florida legislature amended FDUTPA in 2001 by changing the definition of who could bring a FDUTPA action from a “consumer” to a “person.” While it may seem obvious that the amendment signaled an intention to expand access to FDUTPA actions, sparse Florida case law on FDUTPA created some confusion. Often times, trial courts, such as the one in Caribbean Cruise, erroneously continued to require consumer status for a claimant bringing a FDUTPA action based on the Fourth District’s opinion in Beacon Prop. Mgmt., Inc. v. PNR, Inc., 890 So. 2d 274, 278 (Fla. 4th DCA 2004).

Fortunately, the Fourth District has added some clarity to the issue. In the second portion of the Court’s opinion in Caribbean Cruise, the Court held that the 2001 amendment indicated that “the legislature no longer intended FDUTPA to apply only to consumers, but to other entities able to prove the remaining elements of the claim.” The Court stated:

[W]hile the claimant would have to prove that there was an injury or detriment to consumers in order to satisfy all of the elements of a FDUTPA claim, the claimant does not have to be a consumer to bring the claim.

After Caribbean Cruise, FDUTPA claims seem to be available to businesses in B2B transactions as long as the claimant can show some potential harm to consumers resulting from the unfair or deceptive trade practice. More specifically, however, the Court was unequivocally clear that FDUTPA claims are available to businesses in litigation against consumer bureaus like the BBB where the claimant alleges that the bureau is acting in a biased or partial way even though the bureau makes representations that it acts impartially or without bias. In this sense, the Fourth District opened the door to lawsuits in connection with representations that consumer bureaus make about themselves as opposed to their constitutionally protected opinions about a particular business.

Caribbean Cruise is certainly a sign of hope for practitioners and businesses aggrieved by a consumer bureau like a local BBB. However, in order take advantage of Caribbean Cruise and bring a claim against a consumer bureau like a local BBB, businesses and their attorneys will need to develop a sound strategy well in advance of filing suit and be extremely meticulous in pleading their causes of action so as to overcome defenses of constitutional protection in the bureau’s motion to dismiss.

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W Mason is an associate with the law firm Fox Rothschild LLP. W practices in Fox Rothschild’s Litigation department in West Palm Beach, Florida. W focuses his practice on commercial litigation throughout Florida, with an emphasis on litigation involving consumer bureaus including the Better Business Bureau. You can reach W at (561) 804-4432 or wmason@foxrothschild.com.

Successfully suing a consumer rating bureau for the lost business that results from an erroneous or biased rating can be extremely challenging. Potential business-owner litigants and their attorneys quickly learn that in most jurisdictions, courts have developed case law shrouding consumer bureaus like the Better Business Bureau with broad constitutional protection. Specifically, in many places, courts find that statements made by a consumer bureau such as the Better Business Bureau are statements of pure opinion that receive absolute privilege under the First Amendment of the Constitution of the United States. As such, a plaintiff in a lawsuit against a consumer bureau may have a difficult time surviving the pleading phase of litigation.

Fortunately, for businesses in South Florida, the legal landscape has changed. Florida’s Fourth District Court of Appeal recently dealt a devastating blow to consumer bureaus, the Better Business Bureau in particular, in the case captioned Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, Inc. d/b/a Better Business Bureau of Southeast Florida and the Caribbean, Case No. 4D13-3916. In Caribbean, the plaintiff alleged claims against the Better Business Bureau under Florida Unfair and Deceptive Trade Practices Act on the basis that “BBB is deceptive in their practices, including its representation that it has an unbiased rating system and conducts an adequate investigation into the businesses for which it rates, when, in fact, it does not.” Further, the plaintiff alleged that “BBB falsely represents that it bases its grade on sixteen specifically-enumerated factors, and that BBB does not inform the public that it partially relies on whether a business is ‘accredited’ in grading that business.”

The trial court granted a motion to dismiss filed by the BBB finding that the BBB’s statements were protected by the First Amendment. Upon review, the Fourth District strongly disagreed and found that the plaintiff’s dispute was not with the opinions issued by the BBB, but rather was with the representations that the BBB makes, the methods that it employs, and the way it conducts its business. The Fourth District Court of Appeal held:

Since Caribbean Cruise’s allegations do not challenge statements of BBB’s opinions, the First Amendment did not protect BBB from Caribbean Cruise’s FDUTPA claim.

Therefore, the Fourth District reversed and remanded the case to the trial court.

While litigation against a consumer bureau still presents challenges for plaintiffs, the Fourth District’s ruling in Caribbean is great news for potential litigants considering a lawsuit against a consumer bureau such as the Better Business Bureau. However, a case against a consumer bureau will still require careful development of legal strategy and extremely well crafted pleading in advance of filing a lawsuit.

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W Mason is an associate with the law firm Fox Rothschild LLP. W practices in Fox Rothschild’s Litigation department in West Palm Beach, Florida. W focuses his practice on commercial litigation throughout Florida, with an emphasis on litigation involving consumer bureaus and various Better Business Bureau affiliates. You can reach W at (561) 804-4432 or wmason@foxrothschild.com.

In the recent case of Nguyen v. Biondo (In re Biondo), 2014 WL 2702891 (Bankr. S.D.Fla. 2014)(http://www.flsb.uscourts.gov) the U.S. Bankruptcy Court for the Southern District of Florida (“Bankruptcy Court”) held that $1,130,742.68 in damages in the underlying judgment entered by the U.S. District Court for the Southern District of Florida (“District Court”) for trademark infringement and cybersquatting were not dischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(6).  For a debt to be found nondischargeable pursuant to section 523(a)(6), the debt must be owing from the debtor to the plaintiff and arise from “willful and malicious” injury.  An act is “willful” within the meaning of section 523(a)(6) if it is undertaken with the intent to cause injury, or if it is an intentional act and injury is certain or substantially certain to result.  With respect to debts related to financial harms, a plaintiff must show that the defendant actually knew, at the time of the intentional act, that the injury was substantially certain to result.  An act is “malicious” under section 523(a)(6) if it is wrongful and without just cause, or excessive even where there is no ill will.  The Bankruptcy Court determined that findings by the District Court that the debtor intentionally infringed on the plaintiffs’ trademark and undertook cybersquatting, with full knowledge that such acts would harm the plaintiffs’ property, and without just cause or excuse, were entitled to collateral estoppel effect and satisfied the “willful and malicious” requirement of section 523(a)(6).