Figueroa v. Szymoniak

IN THE CIRCUIT COURT, 17TH JUDICIAL oRcurr, IN AND FOR BRO WARD COUNTY, FLORIDA

CASE NO.: 13 06883

DIVISION:

IGNACIO DAMIAN FIGUEROA,

Plaintiff,

vs.

LYNN SZYMONIAK, ESQUIRE, individually and as shareholder/member/owner of The Szymoniak Firm, P.A.; THE SZYMONIAK FIRM, P.A., a Florida professional association; HAL J. KLEINMAN, ESQUIRE, individually; JANET, JENNER & SUGGS, LLC,

Defendants.

SURVERX, INC, CERTIFIED P OCESS SERVER

CE TIFICATION DATE'JFIME22L ZAWN SUMMONS

THE STATE OF FLORIDA: ST-7MM I) k f I

,

To Each Sheriff of the State:

YOU ARE COMMANDED to serve this Summons, a copy of the Complaint, Plaintiff's First Request for Production, Plaintiff's Notice of Service of First Interrogatories and Plaintiff's First Interrogatories to Defendant, in this action on:

THE SZYMONIAK FIRM, P.A., by serving its registered agent, LYNN E. SZYMONIAK

403 South Sapodilla Avenue, PH2-5 West Palm Beach, FL 33401

Each Defendant is required to serve written defenses to the Complaint to Plaintiff's attorneys, whose names are Donald St. Denis, Esquire and Eric M. Bradstreet, Esquire, St. Denis & Davey, P.A., 1300 Riverplaee Boulevard, Suite 401, Jacksonville, Florida 32207, telephone (904)396- 1996 within 20 days after service of this Summons on the Defendant, exclusive of the day of service, and to file the original of the defenses with the clerk of this court either before service on Plaintiffs attorneys or immediately thereafter. If a Defendant fails to do so, a default will be

PENG

AD 80

0- 631

- 6989

.9

Case 0:13-cv-61020-JIC Document 1-1 Entered on FLSD Docket 05/01/2013 of 41

entered against that Defendant for the relief demanded in the Complaint.

WITNESS my hand and the seal of this Court on

tni0

Clerk Court

By: -P GERVIN A tOPY CIRCUIT CIVIL


IN THE CIRCUIT COURT, 17TH JUDICIAL CIRCUIT, IN AND FOR BRO WARD COUNTY, FLORIDA

CASE NO.: DIVISION: 13..0

IGNACIO DAMIAN FIGUEROA,

Plaintiff,

VS.

LYNN SZYMONIAK, ESQUIRE, individually and as shareholder/member/owner of The Szymoniak Firm, P.A.; THE SZYMONIAK FIRM, P.A., a Florida professional association; HAL J. KLEINMAN, ESQUIRE, individually; JANET, JENNER & SUGGS, LLC,

Defendants.

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff, IGNACIO DAMIAN FIGUEROA, sues the Defendants, LYNN SZYMONIAK,

ESQUIRE, individually and as shareholder/member/owner; THE SZYMONIAK FIRM, P.A., a

Florida professional association; HAL J. KLEINMAN, ESQUIRE, individually; and JANET,

JENNER & SUGGS, LLC, a Maryland limited liability company (hereinafter, collectively, the

"Defendants"), and alleges:

Parties and Jurisdiction

1. This is an action for damages in excess of $15,000.00, exclusive of fees, costs and

interest.

2. At all times material hereto, Plaintiff, IGNACIO DAMIAN FIGUEROA

(hereinafter, "FIGUEROA"), resided in Broward County, Florida, and received communications


and legal advice from the Defendants in Broward County, Florida. Furthermore, FIGUEROA

sustained damages in Broward County, Florida.

3. At all times material hereto, Defendant, LYNN SZYMONIAK, ESQUIRE

(hereinafter, "SZYMONIAK"), was an attorney licensed to practice law in the State of Florida,

and entered into an attorney-client relationship with FIGUEROA in Broward County, Florida. It

is believed that the fully executed contract is in the possession of SZYMONIAK.

4. At all times material hereto, Defendant, THE SZYMONIAK FIRM, P.A., a

Florida professional association (hereinafter, the "SZYMONIAK FIRM"), was doing business in

Florida, and entered into an attorney-client relationship with FIGUEROA in Broward County,

Florida. It is believed that the fully executed contract is in the possession of the SZYMONIAK

FIRM.

5. At all times material hereto, SZYMONIAK was and is an owner, shareholder,

member, officer, agent, servant, employee and/or apparent agent of the SZYMONIAK FIRM,

and was at all times material hereto, acting within the course and scope of said agency, services

and/or employment with the SZYMONIAK FIRM, while representing FIGUEROA.

6. At all times material hereto, Defendant, HAL J. KLEINMAN, ESQUIRE

(hereinafter, "KLEINMAN"), was an attorney licensed in the States of Illinois and Pennsylvania,

and entered into an attorney-client relationship with FIGUEROA in Broward County, Florida.

7. At all times material hereto, Defendant, JANET, JENNER & SUGGS, LLC, a

Maryland limited liability company (hereinafter, the "JANET FIRM"), entered into an attorney-

client relationship with FIGUEROA in Broward County, Florida.

8. At all times material hereto, KLEINMAN was and is an agent, servant, employee

and/or apparent agent of the JANET FIRM, and was at all times material hereto, acting within

2


the course and scope of said agency, services and/or employment with the JANET FIRM, while

representing FIGUEROA.

9. Based on the actions of the Defendants, FIGUEROA reasonably believed that

SZYMONIAK, the SZYMONIAK FIRM, KLEINMAN, and the JANET FIRM were his

aftomeys.

10. As described in the allegations that follow, the Defendants failed to perform acts

required by the attorney-client relationship to be performed in Florida, breached duties to

FIGUEROA arising from the attorney-client relationship in Florida, intentionally misled

FIGUEROA to his detriment, and provided legal services to FIGUEROA which caused him

damage in Florida.

General Alleuations

11, On February 4, 2010, FIGUEROA, created a series of YouTube videos exposing

assigmnent mortgage fraud, foreclosure fraud, robo-signing, notary fraud and affidavit fraud that

involve loans to securitized trusts that were already closed.

12. On February 5, 2010, SZYMONIAK contacted FIGUEROA in reference to his

YouTube videos on assignment of mortgage fraud saying it was "excellent work" and asked to

meet with him.

13. On February 9, 2010, FIGUEROA met with SZYMONIAK at a "Foreclosure

Happy Hole. They discussed a proposed class action against lawyer David Stern for his part in

foreclosure fraud and FIGUEROA's YouTube videos, FIGUEROA stressed to her that a Qui

Tam action with him as the relator was the way to go because there had been damages to the

U. S . Government.

3


14. During the meeting, SZYMONIAK stated that she was FIGUEROA's attorney

and expressed concern over whether FIGUEROA had discussed his thoughts about a Qui Tarn

action with others.

15. At the meeting, FIGUEROA explained to SZYMONIAK that he desired to pursue

a Qui Tarn action since the U.S. Government was being defrauded, in that government sponsored

entities (e.g. Freddie Mac, HUD, FHA, VA, Ginnie Mae and Fannie Mae) buys, backs,

guarantees and insures mortgage purchases in the secondary market, and in that the government

was involved in the mortgage industry through HAMP, TARP, AIG Bailout, and the FDIC

programs.. The U.S. Government was harmed by this fraud.

16. Through FIGUEROA's own initiative, his research, his professional real estate

background, and personal experience with a foreclosure of his investment home (which involved

Freddie Mac), FIGUEROA had gained information about the fabricated documents, in-house

signers posing as bank officers, wrongfully notarized documents, postdated documents,

backdated documents, missing documents, forgeries and false affidavits. Under the reasonable

belief that information shared with SZYMONIAK was confidential, at the meeting and thereafter

he shared this information with her and explained his theory of pursing a Qui Tam action.

17. At the meeting, FIGUEROA initiated all discussion with SZYMONIAK about a

Qui Tam action. SZYMONIAK stated that she was considering a class action lawsuit on behalf

of homeowners.

18. After the meeting, SZYMONIAK reiterated that she was FIGUEROA's lawyer

through e-mail, stating: "I am very excited about being your lawyer and I have not said that very

often in the last 10 years".

4


19. Between February 10 and February 16, 2010, FIGUEROA and SZYMONIAK

exchanged numerous e-mails. In these e-mails, FIGUEROA provided SZYMONIAK with

evidence of fraud, including numerous fraudulent mortgage assignments, county records...

20. On February 17, 2010 at 6:01 a.m., SZYMONIAK, on behalf of all Defendants,

sent a retainer agreement to FIGUEROA indicating: "Can't wait for you to meet my co-

counsel."

21. On February 17, 2010 at 6:14 a.m., SZYMONIAK e-mailed FIGUEROA, staling:

"Here is the problem with the qui tam", discussing the need for the U.S. Government to be a

victim of the fraud for a Qui Tam action, and then stating: "But if you want to try this too, let me

know and we will file together..." (emphasis added).

22. On February 17, 2010 at 6:16 a.m., SZYMONIAK sent FIGUEROA a Statement

of Client's Rights.

23. On February 17, 2010 at 8:31 a.m., FIGUEROA sent back the signed retainer

agreement and a statement of client's rights.

24. On February 17, 2010 at 8:40 a.m., FIGUEROA replied to SZYMONIAK's 6:14

a.m. e-mail, stating: "If it makes it a much stronger case for us to file together I am with you...I

AM AT YOUR SERVICE for what ever you need me, you never have to ask twice."

25. From that point on, SZYMONIAK solicited information and assistance from

FIGUEROA, copied him on correspondence related to Qui Tam issues, and represented to him

that she and her co-counsel were trying to get the U.S. Government to pick up the claim with

FIGUEROA.

26. At no time did any of the Defendants:

5


(a) inform FIGUEROA that the Defendants were not going pursue a Qui Tam

action with FIGUEROA as the relator;

(b) inform FIGUEROA that the Defendants have a conflict of interest because

they were pursuing a Qui Tam action with SZYMONIAK as the relator, based on the allegations

of fraud on the U.S. Goverment for fraudulent mortgage assignments and other foreclosure

documents;

(c) obtain a waiver of the conflict of interest described in sub-paragraph (b)

above from FIGUEROA;

(d) limit their representation of FIGUEROA to not include a Qui Tam action

with him as the relator; and

(e) obtain a waiver of the attorney-client privilege from FIGUEROA in order

to use information confidentially obtained from him to pursue a Qui Tam action with

SZYMONIAK as the relator.

27. Under the pretense of attorney-client privilege, SZYMONIAK continued to solicit

information from FIGUEROA for the Defendants' use in a Qui Tam action.

28. For example, on February 18, 2010, SZYMONIAK requested that FIGUEROA

find information about mortgage backed securities purchased by the U.S. Government, stating in

separate e-mails: "PLEASE DO NOT POST THIS REQUEST. But if you have some

information or can direct me, I would be most appreciative" and "Here we go again. For the

possible Qui Tam, we need to show harm TO THE GOVERNMENT. (irony here is extreme of

course)."

29. Thinking he was assisting the Defendants with building a Qui Tam action with

him as the relator, FIGUEROA found the requested information and forwarded it to

6


SZYMONIAK. One of the e-mails that FIGUEROA forwarded to SZYMONIAK showed links

to securities that the government had purchased and links to lenders who sold to the government

on the secondary market. Another of the e-mails that FIGUEROA forwarded to SZYMONIAK

stated: "YOU ARE ABOUT TO FALL see attachment...US to spend about 9 TRILLION!!"

30. On February 19, 2010, SZYMONIAK e-mailed FIGUEROA to explain that she

and the other Defendants had been busy filing a class action lawsuit in another matter in the

United States District Court for the Southern District of Florida, and forwarded him the

complaint listing SZYMONIAK, the SZYMONIAK FIRM and the JANET FIRM as counsel.

This e-mail reinforced FIGUEROA's faith in the Defendants.

31. Again, on February 22, 2010, SZYMONIAK solicited assistance from

FIGUEROA, her client, stating: "When you get a chance.. .would you work in making a list of

all court decisions where the case was thrown out because the bank did not have standing

because it had not yet acquired the note & mortgage via Assignment? (This is a rather LARGE

project — but would be very useful to everyone and we could use it to prove actual knowledge of

the Missing Assignment problem by the banks).

32. Thinking he was assisting the Defendants with building a Qui Tam action with

him as the relator, FIGUEROA spent thousands of hours over the next several years.researching

in excess of four hundred (400) eases of foreclosure fraud.

33. On February 22, 2010, SZYMONIAK and FIGUEROA met in Boca Raton to

exchange documents related to her appearance in his foreclosure case in Broward County, and

the two again discussed pursuing a Qui Tam action.

7


34. On February 23, 2010, SZYMONIAK e-mailed KLEINMAN of the JANET

FIRM regarding FIGUEROA. That same day, FIGUEROA sent an e-mail to KLEINMAN and

received back an automatic receipt.

35. On February 23, 2610, FIGUEROA and KLEINMAN of the JANET FIRM have

a nineteen (19) minute phone call, in which they discuss a possible class action lawsuit and other

matters arising out of FIGUEROA' s experience.

36.. On March 4, 2010, Defendant, LYNN SZYMONIAK, ESQUIRE, forwarded to

FIGUEROA a message originally sent to the FBI, reinforcing his belief that Defendants were

building a Qui Tam action with him as the relator. In response, FIGUEROA sent SZYMONIAK

numerous e-mails with a total of twenty-six (26) additional fraudulent assignments that he had

found, showing that the U.S. Government was a victim.

37. On March 7, 2010, SZYMONIAK sent FIGUEROA a draft of a class action

complaint in which FIGUEROA would be named as a plaintiff. The Defendants never informed

FIGUEROA that they would not be pursuing this claim or a Qui Tam action on his behalf, or that

they would be pursuing a Qui Tam action with SZYMONIAK as the relator.

38. On April 4, 2010, FIGUEROA, e-mailed a full list of LPS Signors to

SZYMONIAK, stating: "For us only."

39. In response, SZYMONIAK sent FIGUEROA an e-mail stating: "Thanks for this.

I noticed that these authorizations do not say that the signors can pretend to be officers of the

bank. I wonder how they decide who gets to be a vice president and who has Co be assistant

secretary?" She also indicated: "What I am working on (see why your timing is so perfect)",

attaching a partial draft of a Qui Tarn lawsuit. This reinforced FIGUEROA's belief that the

8


Defendants were building a Qui Tam action with him as the relator and causing him to continue

sending information to SZYMONIAK.

40. On April 28, 2010, FIGUEROA e-mailed SZYMONIAK, attaching a 2007 memo

from Deutsche Bank National Trust to their servicers that put the servicers on notice of the need

to ensure correct documentation and how to properly foreclose.

41. On April 30, 2010, SZYMONIAK again solicited assistance from FIGUEROA.

Thinking he was assisting Defendants with building a Qui Tam action with him as the relator,

FIGUEROA e-mailed SZYMONIAK an attachment regarding Michelle Church DocX.

SZYMONIAK responded that she was not aware of Michelle Church.

42. On May 2, 2010, SZYMONIAK forwarded an e-mail to FIGUEROA regarding

the Michelle Church DocX information, stating that it "Following your wonderful lead... this

could be very, very big." The forwarded e-mail dealt with SZYMONIAK inquiring about the

identity of individuals in South Carolina.

41 Over the next several months, SZYMONIAK solicited additional information and

research from FIGUEROA, which he provided to her. During this time, Defendants never:

(a) informed FIGUEROA that the Defendants were not going to pursue a Qui

Tam action with FIGUEROA as the relator;

(b) informed FIGUEROA that the Defendants have a conflict of interest

because they were pursuing a Qui Tam action with SZYMONIAK as the relator, based on the

allegations of fraud on the U.S. Government for fraudulent mortgage assignments and other

foreclosure documents;

(c) obtained a waiver of the conflict of interest described in sub-paragraph (b)

above from FIGUEROA;

9


(d) limited their representation of FIGUEROA to not include a Qui Tam

action with him as the relator; or

(e) obtained a waiver of the attorney-client privilege from FIGUEROA in

order to use information confidentially obtained from him to pursue a Qui Tam action with


44. On June 28, 2010, FIGUEROA and SZYMONIAK exchanged e-mails about Qui

Tam actions in California and Nevada. During this exchange:

(a) SZYMONIAK states: "Have you been approached by anyone about filing

a qui tam against Stern & IndyMac? I cannot get anyone interested — but I think they should be

interested."

(b) FIGUEROA replies: "Only by you :) ... you told me to keep it between

us. You would be the only person who would take me serious and not think I am nuts!"

(c) SZYMONIAK replies: "Just so you know that I have NOT filed a qui tam

and have not found anyone willing to do this — so if you are aPproached, you should consider

this. Despite all the hype, no one is beating down our doors to help us."

45. On July 8, 2010, FIGUEROA e-mailed SZYMONIAK: "There is an attorney in

Ft. Lauderdale who is organizing a Class. Action on Stern. He might ask me to be the Class Rep

for it. My question is does it conflict on anything we plan to do in the future? My loyalty is with

you and want to ask to make sure."

46. On July 8, 2010, SZYMONIAK replied: "I cannot get my group to act — please

take any opportunity you can to get justice. When we both get justice, we will go to lunch every

damn day the first year."

10


47. On July 30, 2010, SZYMONIAK forwards to FIGUEROA a letter from her to the

FBI that is copied to Richard A. FIarpootlian ("HARPOOTLIAN") of Richard A. Harpootlian,

P.A. (the "HARPOOTLIAN FIRM"), who was also represented to be Defendants' co-counsel,

which reinforced FIGUEROA' s belief that Defendants were pitching his Qui Tam action to the

government.

48. Defendants did not inform FIGUEROA that they had filed a Qui Tam action with

SZYMONIAK as the relator or that they were going to file others with SZYMONIAK was the

relator based upon information obtained from FIGUEROA while representing him,

49. Upon information and belief, a Qui Tarn action was filed in the United States

District Court for the District of South Carolina on or about June 6, 7 or 8, 2010. In this Qui

Tam action, the attorneys of record were HARPOOTLIAN, the HARPOOTLIAN FIRM and the

JANET FIRM, and the relator was SZYMONIAK.

50. Upon information and belief, another Qui Tam action was filed in a United States

District Court in North Carolina in or around November 2010. In this Qui Tam action, the

attorneys of record included HARPOOTLIAN, the HARPOOTLIAN FIRM and the JANET

FIRM, and the relator was SZYMONIAK.

51. Throughout the next several months, FIGUEROA continued to send information

regarding foreclosure fraud to SZYMONIAK, thinking that Defendants were still considering a

Qui Tam action with him as the relator. Upon information and belief, Defendants used the

information provided by FIGUEROA to assist them in pursuing the Qui Tam actions with


52. Finally, in March 2012, FIGUEROA learned that the U.S. Government had

reached a $25,000,000,000.00 settlement with certain mortgage lenders and servicers, of which

11


$95,000,000.00 was related to a Qui Tarn action brought in South Carolina regarding the

nationwide practice of failing to obtain the required mortgage assignments and providing false

assignments, defrauding the U.S. Government of taxpayer money. Upon information and belief,

the basis of this Qui Tam action was the information relayed by FIGUEROA to the Defendants

while he was under the impression that they were representing him.

53. Upon information and belief, the Defendants received the sum of $18,000,000.00

for their part in the South Carolina Qui Tarn action. Of these funds, 9,000,000.00 will go to

SZYMONIAK and unknown amounts will go to HARPOOTLIAN, the HARPOOTLIAN FIRM,

KLEINMAN and the JANET FIRM. These sums would not have been received by the

Defendants but for their use of information wrongfully obtained from FIGUEROA. In addition,

FIGUEROA would have received proceeds from the settlement had Defendants not wrongfully

concealed from him that SZYMONIAK was the relator in the Qui Tam action and would they

have instead included him as the relator.

54. Upon information and belief, the Defendants will receive additional proceeds as a

result of the information they had wrongfully obtained from FIGUEROA to use in the Qui Tarn

action, as the above-described settlement was only a partial settlement of the U.S. Government's

claims against mortgage lenders and servicers.

55. These funds have been and will continue to be received by the Defendants,

despite the fact that they never withdrew from representing FIGUEROA, without ever disclosing

the conflict of interest they had in representing him, without ever disclosing to him that they

were pursuing a Qui Tam action with SZYMONIAK as the relator, without ever disclosing to

him that they would be using information he provided in reliance upon the attorney-client

12


privilege, and without ever obtaining a waiver from him of the attorney-client privilege prior to

using confidential information to obtain a recovery for SZYMONIAK as the relator.

COUNT I LEGAL MALPRACTICE AS TO DEFENDANTS

LYNN & THE SZYMONIAK FIRM P.A.

56. FIGUEROA realleges and reavers paragraphs numbered 1 through 55 above as if

fully repled herein.

57. FIGUEROA entered into an attorney-client relationship with SZYMONIAK and

the SZYMONIAK FIRM to serve as counsel and advise him with respect to claims he might

bring against mortgage lenders, servicers and foreclosure law firms.

58. At all times material hereto, SZYMONIAK and the SZYMONIAK FIRM owed

FIGUEROA a reasonable duty of care in representing him, advising him, making representations

upon which FIGUEROA could rely, and in holding information relayed to them as confidential

under the attorney-client privilege.

59. SZYMONIAK and the SZYMONIAK FIRM breached these duties by, inter cilia:

(a) failing to inform FIGUEROA that SZYMONIAK was pursuing a Qui Tam

as the relator, based on the allegations of fraud on the U.S. Goverment for fraudulent mortgage

assignments and other foreclosure documents that FIGUEROA had brought to their attention;

(b) failing to limit the scope of their representation of FIGUEROA in writing,

so as to inform him that they would not be pursuing a Qui Tam action with him as the relator;

(c) using information for their own benefit that was provided to them by

FIGUEROA under the confidence of the attorney-client relationship;

(d) soliciting FIGUEROA for information to assist in a Qui Tam action for

SZYMONIAK'S own benefit, without limiting the scope of their representation of FIGUEROA

13


as to not include a Qui Tarn action;

(e)

failing to obtain informed consent from FIGUEROA to waive the conflict

of interest that existed between them as a result of their pursuit of a Qui Tam action based on the


foreclosure documents that FIGUEROA had brought to their attention;

failing to obtain informed consent from FIGUEROA to waive aftomey-

client privilege with respect to information he relayed to them, prior to using that information

gained in confidence for SZYMONIAK's own benefit as the relator in a Qui Tam action;

(g) failing to inform FIGUEROA that their own pursuit of a Qui Tam action

with SZYMONIAK as the relator would prevent him from obtaining a recovery as the relator in

any other action based on the allegations of fraud on the U.S. Government for fraudulent

mortgage assignments and other foreclosure documents; and

(h) failing to properly investigate and file a Qui Tam action with FIGUEROA

as the relator.

60. As a result of the negligence of SZYMONIAK and the SZYMONIAK FIRM,

FIGUEROA has been damaged by, inter cilia:

(a) relaying information to Defendants that he had gathered in order to pursue

a Qui Tarn action as relator, which they used to pursue a Qui Tam action with SZYMONIAK as

the relator, thus precluding any possible recovery by FIGUEROA as a relator;

(b) in reliance upon SZYMONIAK's and the SZYMONIAK FIRM's

representation of him, not soliciting other legal representation for the bringing of Qui Tam

claims as the relator, thus precluding any possible recovery by FIGUEROA as a relator;

(c) losing the compensation of being the relator in Qui Tam actions in North

14


Carolina and South Carolina based on the allegations of fraud on the U.S. Goverment for

fraudulent mortgage assignments and other foreclosure documents; and

(d) losing the right to pursue Qui Tam actions in numerous other jurisdictions

based on the allegations of fraud on the U.S. Government for fraudulent mortgage assignments

and other foreclosure documents.

WHEREFORE, Plaintiff, IGNACIO DAMIAN FIGUEROA, demands judgment against

Defendants, LYNN SZYMONIAK, ESQUIRE and THE SZYMONIAK FIRM, P.A., together

with costs, pre-judgment interest, as well as all other damages allowed by law.

COUNT II BREACH OF FIDUCIARY DUTY AS TO DEFENDANTS

LYNN SZYQN1AK & THE SZYMONIAK FIRM P.A.



62. SZYMONIAK and the SZYMONIAK FIRM entered into an attorney-client

relationship with FIGUEROA, thus establishing fiduciary duties of the utmost loyalty, honesty,

candor and confidence.

63. SZYMONIAK and the SZYMONIAK FIRM breached the fiduciary duties owed

to FIGUEROA by, inter alia:

(a) using the confidence that FIGUEROA had in them in order to solicit

confidential information from him to use for their own benefit;

(b) misleading FIGUEROA and concealing their actions from FIGUERO.A so

that he would not pursue a Qui Tam action as the relator and so that he would not realize that

they were pursuing a Qui Tam action with SZYMONIAK as the relator based on the very issues

that he brought to their attention as his attorneys;

15


(c) failing to represent FIGUEROA with undivided loyalty by putting their

own interest in having SZYMONIAK as the relator ahead of FIGUEROA's interest in being the

relator;

(d) failing to inform FIGUEROA that SZYMONIAK was pursuing a Qui Tam

as the relator based on the very issues that he brought to their attention as his attorneys;

(e) failing to limit the scope of their representation of FIGUEROA in writing,


(f) using information for their own benefit that was provided to them by

FIGUEROA under the confidence of the attorney-client relationship;

(g) soliciting FIGUEROA for information to assist in a Qui Tam action for

SZYMONIAK'S own benefit, without limiting the scope of their representation of FIGUEROA

as to not include a Qui Tam action;

(h) failing to obtain informed consent from FIGUEROA to waive the conflict




(i) failing to obtain informed consent from FIGUEROA to waive attorney


gained in confidence for SZYMONIAK's own benefit as the relator in a Qui Tam action;

(I) failing to inform FIGUEROA that their own pursuit of a Qui Tam action




16


(k) failing to properly investigate and file a Qui Tam action with FIGUEROA

as the relator.

64. As a result of the breaches of fiduciary duty by SZYMONIAK and the

SZYMONIAK FIRM, FIGUEROA has been damaged by inter alia:


a Qui Tam action as relator, which they used to pursue a Qui Tarn action with SZYMONIAK as


(b) in reliance upon SZYMONIAK's and the SZYMONIAK FIRM's



(C) losing the compensation of being the relator in Qui Tam actions M. North

Carolina and South Carolina based on the allegations of fraud on the U.S. Government for






Defendants, LYNN SZYMONIAK, ESQUIRE and THE SZYMONIAK FIRM, P.A., together


COUNT III UNJUST ENRICHMENT AS TO DEFENDANT LYNN

SZYMONIAUJILE



17


66. FIGUEROA conferred a benefit upon SZYMONIAK by revealing confidential

information to her for the pursuit of a Qui Tarn action against mortgage lenders and servicers. for

defrauding the U.S. government.

67. SZYMONIAK had knowledge of the benefit conferred on her by FIGUEROA. In

fact, SZYMONIAK actually solicited information from FIGUEROA, which she intended to use

to her benefit.

68. SZYMONIAK voluntarily accepted and retained the benefit conferred by

FIGUEROA, in that she used the information for her own benefit by serving as the relator in a

Qui Tam action.

69. The circumstances are such that it would be inequitable for SZYMONIAK to

retain the benefit of the information conferred upon her by FIGUEROA without paying the value

thereof to him, since she obtained the information from him under the pretense of the attorney-

client relationship and since her compensation from the U.S. Government for using the

information as the relator in the Qui Tarn action is to the exclusion of compensation to

FIGUEROA.

70. The value of the benefit conferred upon SZYMONIAK and to which FIGUEROA

is entitled from her is the compensation she received and will receive as the relator in the Qui

Tam actions.


Defendant, LYNN SZYMONIAK, ESQUIRE, together with costs, pre-judgment interest, as well

as all other damages allowed by law.

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COUNT IV FRAUD AS TO DEFENDANT LYNN SZYMONIAK ESQUIRE



72. SZYMONIAK entered into an attorney-client relationship with FIGUEROA. As

such, SZYMONIAK knew that FIGUEROA would rely on the advice given and statements made

by her.

73. SZYMONIAK knowingly made false statements concerning material facts to

FIGUEROA, including, inter alia:

(a) that SZYMONIAK intended to pursue a Qui Tam action with FIGUEROA

as the relator; and

(b) that SZYMONIAK had not found someone to pursue a Qui Tam action

based on the allegations of fraud on the U.S. Goverment for fraudulent mortgage assignments

and other foreclosure documents;

74, SZYMONIAK intended that FIGUEROA would rely upon her false statements,

and in reliance on them would provide confidential information for her to use for her own benefit

and would not pursue a Qui Tam action as relator without her involvement.

75. FIGUEROA relied on SZYMONIAK' s fraudulent representations, providing her

confidential information that she in turn used for her own benefit and not pursuing a Qui Tam

action as relator based on the allegations of fraud on the U.S. Government for fraudulent

mortgage assignments and other foreclosure documents.

76. As a result of SZYMONIAK's fraud, FIGUEROA has been damaged by, inter


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a Qui Tam action as relator, which they used to pursue a Qui Tam action with SZYMONIAK as


(b) in reliance upon SZYMONIAK's and the SZYMONIAK FIR_M's



(c) losing the compensation of being the relator in Qui Tam actions in North

Carolina and South Carolina based on the allegations of fraud on the U.S. Goverment for


(d) losing the right to pursue Qui Tarn actions in numerous other jurisdictions




Defendant, LYNN SZYMONIAK, ESQUIRE, together with costs, pre-judgment interest, as well

as all other damages allowed by law.

COUNT V LEGAL MALPRACTICE AS TO DEFENDANTS

HAL I KLEINIVL41V,EE & JANE12,„1:E._. j_VNER & SUGGS LLC



78. FIGUEROA entered into an attorney-client relationship with KLEINMAN and

the JANET FIRM to serve as counsel and advise him with respect to claims he might bring

against mortgage lenders, servicers and foreclosure law firms.

79. At all times material hereto, KLEINMAN and the JANET FIRM owed

FIGUEROA a reasonable duty of care in representing him, advising him, making representations

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upon which FIGUEROA could rely, and in holding information relayed to them as confidential

under the attorney-client privilege.

80. KLEINMAN and the JANET FIRM breached these duties by, inter alia:

(a) failing to inform FIGUEROA that SZYMONIAK was pursuing a Qui Tam

as the relator, based on the allegations of fraud on the U.S. Government for fraudulent mortgage

assignments and other foreclosure documents that FIGUEROA had brought to their attention;

(b) failing to limit the scope of their representation of FIGUEROA in writing,


(c) using information that was provided to them by FIGUEROA under the

confidence of the attorney-client relationship to the benefit of SZYMONIAK;

(d) soliciting FIGUEROA for information to assist in a Qui Tam action for the

benefit of SZYMONIAK, without limiting the scope of their representation of FIGUEROA as to

not include a Qui Tam action;

(e) failing to obtain informed consent from FIGUEROA to waive the conflict


allegations of fraud on the U.S. Government for fraudulent mortgage assignrn.ents and other


(f) failing to obtain informed consent from FIGUEROA to waive attorney-


gained in confidence for the benefit of SZYMONIAK as the relator in a Qui Tam action;

(g) failing to inform FIGUEROA that their own pursuit of a Qui Tam action



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(h) failing to properly investigate and file a Qui Tam action with FIGUEROA

as the relator.

81. As a result of the negligence of KLEINMAN and the JANET FIRM, FIGUEROA

has been damaged by, inter alia:


a Qui Tam action as relator, which they used to pursue a Qui Tam action with SZYMONIAK as


(b) in reliance upon KLEINMAN's and the JANET FIRM's representation of

him, not soliciting other legal representation for the bringing of Qui Tam claims as the relator,

thus precluding any possible recovery by FIGUEROA as a relator;

(c) losing the compensation of being the relator in Qui Tarn actions in North







Defendants, HAL J. KLEINMAN, ESQUIRE and JANET, JENNER & SUGGS, LLC, together


COUNT VI BREACH OF FIDUCIAIRY DUTY AS TO DEFENDANTS

HAL J. KLEINMAN ES UIRE & JANET JENNER & SUGGS LLC

82. FIGUEROA realleges and reavers paragraphs numbered I through 55 above as if

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83. KLEINMAN and the JANET FIRM entered into an attorney-client relationship

with FIGUEROA, thus establishing fiduciary duties of the utmost loyalty, honesty, candor and

confidence.

84. KLEINMAN and the JANET FIRM breached the fiduciary duties owed to

FIGUEROA by, inter alia:

(a) using the confidence that FIGUEROA had in them in order to solicit

confidential information from him to use for their own benefit;

(b) misleading FIGUEROA and concealing their actions from FIGUEROA so

that he would not pursue a Qui Tam action as the relator and so that he would not realize that

they were pursuing a Qui Tam action with SZYMONIAK as the relator based on the very issues

that he brought to their attention as his attorneys;

(0)

failing to represent FIGUEROA with undivided loyalty by putting their

own interest in having SZYMONIAK as the relator ahead of FIGUEROA's interest in being the

relator;

(d) failing to inform FIGUEROA that SZYMONIAK was pursuing a Qui Tam

as the relator based on the very issues that he brought to their attention as his attorneys;

(e) failing to limit the scope of -their representation of FIGUEROA in writing,


(f) using information that was provided to them by FIGUEROA under the

confidence of the attorney-client relationship to the benefit of SZYMONIAK;

(g) soliciting FIGUEROA for information to assist in a Qui Tam action for the

benefit of SZYMONIAK, without limiting the scope of their representation of FIGUEROA as to

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not include a Qui Tam action;

(h) failing to obtain informed consent from FIGUEROA to waive the conflict


allegations of fraud on the U.S. Goverment for fraudulent mortgage assignments and other


(i) failing to obtain informed consent from FIGUEROA to waive attorney


gained in confidence for the benefit of SZYMONIAK as the relator in a Qui Tam action;

failing to inform FIGUEROA that their own pursuit of a Qui Tam action


any Other action based on the allegations of fraud on the U.S. Government for fraudulent


(k) failing to properly investigate and file a Qui Tam action with FIGUEROA

as the relator.

85, As a result of these breaches by KLEINMAN and the JANET FIRM, FIGUEROA

has been damaged by, inter alia:


a Qui Tam action as relator, which they used to pursue a Qui Tarn action with SZYMONIAK as


(b) in reliance upon KLEINMAN's and the JANET FIRM's representation of

him, not soliciting other legal representation for the bringing of Qui Tam claims as the relator,

thus precluding any possible recovery by FIGUEROA as a relator;

(e) losing the compensation of being the relator in Qui Tam actions in North

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Defendants, HAL J. KLEINMAN, ESQUIRE and JANET, JENNER & SUGGS, LLC, together


DEMAND FOR JURY TRIAL

Plaintiff, IGNACIO DAMIAN FIGUEROA, demands trial by jury on all issues so

triable.

ST. PENIS DA

. PENIS, ESQUIRE a 0794864

cfltr* law.com • BRADSTREET, ESQUIRE

Ida Bar No.: 0034946 erie a,sdtriallaw.'corn 1300 Riverplace Boulevard, Suite 401 Jacksonville, FL 32207 (904)396-1996 (904)396-1991 (Facsimile) Attorneys for Plaintiff

CERTIFICATE OF SERVICE

Plaintiff hereby gives notice that they are sending the Complaint to a process server to be

served on Defendants via service of process.

Attorney

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IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR

BROWARD COUNTY, FLORIDA

CASE NO. 13-06883 DIVISION: 13

IGNACIO DAMIAN FIGUEROA Plaintiff, v. LYNN SZYMONIAK, ESQUIRE, individually and as shareholder/member/owner of The Szymoniak Firm, P.A.; THE SZYMONIAK FIRM, P.A., a Florida professional association; HAL J. KLEINMAN, ESQUIRE, individually; JANET, JENNER & SUGGS, LLC, Defendants. __________________________________________/

DEFENDANTS, THE SZYMONIAK FIRM, P.A. AND LYNN SZYMONIAK’S MOTION FOR EXTENSION OF TIME TO RESPOND TO COMPLAINTS AND

DISCOVERY COMES NOW, the Defendants, LYNN SZYMONIAK and THE SZYMONIAK

FIRM, P.A. (hereinafter “SZYMONIAK” and “SZYMONIAK FIRM” respectively, or

“Defendants” collectively) by and through the undersigned counsel, and respectfully move this

Court for an extension of time in which to respond to Plaintiff’s Complaint and Plaintiff’s

Request for Production and Interrogatories and states:

1. The Complaint was filed on March 4, 2013.

2. Defendant, SZYMONIAK FIRM, was served on March 26, 2013 and Defendant,

SZYMONIAK, was served on April 1, 2013.


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3. Pursuant to the Summons, Defendant, SZYMONIAK FIRM’s response to the

Complaint is due on April 15, 2013 and Defendant, SZYMONIAK’s response to the Complaint

is due on April 22, 2013.

4. Pursuant to Fl.R.Civ.P 1.350(b), Defendant, SZYMONIAK FIRM’s responses to

Plaintiff’s Request for Production are due on May 10, 2013 and Defendant, SZYMONIAK’s

responses to Plaintiff’s Request for Production are due on May 16, 2013. Pursuant to Fl.R.Civ.P.

1.340(a) Defendant, SZYMONIAK FIRM’s answers to Plaintiff’s Interrogatories are due on

May 10, 2013 and Defendant, SZYMONIAK’s answers to Plaintiff’s Interrogatories are due on

May 16, 2013.

5. Undersigned counsel was just retained by Defendants to represent them in this

matter and requests a thirty (30) day extension of time to serve Defendants’ response to the

Complaint.

6. The undersigned wishes to coordinate with a total of four Defendants, who were

all served at different times. The two out-of-state Defendants were served at some unknown

time after April 1, 2013.

7. The Complaint asserts four (4) separate claims against Defendants,

SZYMONIAK and SZYMONIAK FIRM, and includes seventy-six (76) related allegations.

8. The undersigned needs additional time to research and prepare a response due to

the complexity of the case and counsel’s unfamiliarity with it and the subject matter, as of now.

9. Additionally, the undersigned is in the midst of extensive pre-trial preparation for

a two week trial in Federal Court.

10. The undersigned requests an additional thirty (30) days to prepare responses to the

extensive Requests for Production (each containing forty-two individual requests) and the


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Interrogatories (each containing twenty-one individual questions) due to the extensive nature of

the discovery requests.

11. The short delay in the proceedings will not prejudice the parties or prejudice any

of the parties’ interests in this matter.

WHEREFORE, Defendants, LYNN SZYMONIAK and THE SZYMONIAK FIRM,

P.A., respectfully request that this Court grant them an additional thirty (30) days to respond to

the Complaint, Interrogatories, and Requests for Production.

CERTIFICATION OF CONFERRAL

I hereby certify that upon contact with opposing counsel to confer on the subject of this

motion, opposing counsel indicated his objection to the relief being granted based upon issues

not relevant to the request.

Respectfully submitted, /s/ Mark A. Cullen _______________________________ Mark A. Cullen, Esq. Florida Bar No. 325082 Tamara H. Sager, Esq. Florida Bar No. 93008 The Cullen Law Firm, P.A. Attorneys for Defendant Szymoniak and

Szymoniak Firm 2090 Palm Beach Lakes Boulevard, Suite 500 West Palm Beach, Florida 33409

Telephone: 561.640.9191 Facsimile: 561.214.4021 E-mail: [email protected]


4 �

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished via e-mail this

15th day of April, 2013 to: Donald W. St. Denis, Esq. and Eric M. Bradstreet, Esq. Attorneys for Plaintiff St. Denis & Davey, P.A. 1300 Riverplace Boulevard, Suite 401 Jacksonville, FL 32207 Telephone: (904) 396-1996 Facsimile: (904) 396-1991 E-mails: [email protected] and [email protected] � � � � � � /s/ Mark A. Cullen � � � � � � ___________________________________

Mark A. Cullen, Esq. Florida Bar No. 325082 Tamara H. Sager, Esq. Florida Bar No. 93008 �


Figueroa v. Szymoniak

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Transcript of Figueroa v. Szymoniak