MOTION FOR LEAVE TO AMEND PLEADINGS

IN THE CIRCUIT COUT FOR THE
SEVENTEENTH JUDICIAL CIRCUIT IN
AND FOR BROWARD COUNTY,
FLORIDA
CASE NO: CACE -21-021315 Division 3
BEHAR, GUTT, & GLAZER, PA.,
a Florida professional association,
Plaintiff,
v.
JOSEPH MABE and
MERRILEE ZAWADZKI
Defendant(s)

MOTION FOR LEAVE TO AMEND PLEADINGS

Now Comes the Defendants, JOSEPH MABE and MERRILEE ZAWADZKI, pursuant to
Fla. R. Civ. P. 1.190 and files this Motion to Amend the Pleadings. Defendants seek to correct any
of the perceived deficiencies noted in Plaintiff’s Motion to Strike Defendants’ Answer and
Counterclaim, without the expense and waste of time spent litigating the issues raised by the said
Motion.

The substance of this action began when the Defendants retained the Plaintiff to represent
Defendants in a matter with the Villas of Windmill Point Property Owners Association. A
Retainer Agreement was entered to that effect.
During the proceeding at the case, the Plaintiff failed to meet the expectations of the
Defendants as per the Retainer Agreement, which led to contentions about the payment for
the Plaintiff. This contention led to the instant case filed on December 12, 2021, which case
the Plaintiff filed against the Defendants to attempt to obtain money, which they (Plaintiff)
are not entitled to.

Accordingly, on or about December 29, 2021, the Defendants filed an Answer, Affirmative
Defenses, and Counterclaim to the Plaintiff’s Complaint.
The Plaintiff then filed a Motion to Strike Defendants’ Affirmative Defenses, Motion to
Strike Scandalous Matters, Motion to Dismiss Counterclaim, and Motion for More Definite
Statement.
Defendants, in addition to filing a Response to the said Plaintiff’s Motion, hereby file this
Motion for Leave to Amend the Answer and Counterclaim.
Under Florida law, leave of court to file an amended pleading shall be given freely when
justice requires. See Fla. R. Civ. P. 1.190(a); See also Hutson v. Plantation Open MRI, LLC,
66 So. 3d 1042, 1044 (Fla. 4th DCA 2011) (“Florida Rule of Civil Procedure 1.190(a)
provides that leave to amend shall be given freely when justice so requires”). Absent
exceptional circumstances, motions for leave to amend pleadings should be granted.
Thompson v. Publix Supermarkets, Inc., 615 So. 2d 796, 797 (Fla. 1st DCA 1993).
Further, refusal to allow amendment of a pleading constitutes an abuse of discretion unless
it clearly appears that allowing the amendment would prejudice the opposing party; the
privilege to amend has been abused; or amendment would be futile.” See Thompson. at
1044-45. “The primary consideration in determining whether a motion for leave to amend
should be granted is a test of prejudice. . . .” Id.
Moreover, “the decision to grant leave to amend rests upon the trial court’s discretion, and
any doubts should be resolved in favor of the amendment.” Overnight Success Constr., Inc.
v. Pavarini Constr. Co., Inc., 955 So. 2d 658, 659 (Fla. 3d DCA 2007). “However, the trial
court’s discretion should be exercised in accordance with the public policy of this state to

freely allow amendments so that cases may be resolved on their merits.” Dausman v.
Hillsborough Area Reg. Transit, 898 So. 2d 213, 215 (Fla. 2d DCA 2005).

In light of the foregoing, Defendants aver that first, no party will be prejudiced by the granting of
this Motion. This case is not set for trial. Defendants are therefore entitled to amend their Answer
and Counterclaim. See Carter v. Ferrell, 666 So.2d 556 (Fla. 2nd DCA 1995).
Further, Plaintiff cannot claim any surprise caused by the proposed amendment because the
Amended Answer and Counterclaim features the same basic parties, issues, and facts already at
issue in this lawsuit.
Defendants further aver that the proposed amendment would not be futile. An amendment
is futile when the proposed amendment would not state a cause of action. See PNC Bank,
N.A. v. Progressive Employer Servs. II, 55 So. 3d 655, 660 (Fla. 4th DCA 2011); see also
Quality Roof Servs., Inc. v. Intervest Nat’l Bank, 21 So.3d 883, 885 (Fla. 4th DCA 2009). In
the instant action, Defendants maintain that the proposed amendments are not insufficient
as a matter of law and do not fail to state a cause of action. Primarily, these amendments
buttress already sound factual allegations and legal claims asserted against the Plaintiff (in
the counterclaim), and therefore should correct any of the perceived deficiencies noted in
Plaintiff’s Motion to Strike Defendants’ Answer and Counterclaim, without the expense
and waste of time spent litigating the issues raised by the said Motion.
Accordingly, Defendants request that this Court grant them leave to file their Amended
Answer and Counterclaim, which is attached hereto as Exhibit “A,” and enter an Order
deeming the attached Amended Answer and Counterclaim filed.

WHEREFORE, Defendant respectfully request that this Court enter an Order granting
Defendants’ leave to file their Amended Answer and Counterclaim, which is attached hereto as

Exhibit “A;” deeming the attached Amended Answer and Counterclaim filed, and granting such
other relief as this Court deems just and proper under the circumstances.

Dated: __

Respectfully submitted,

/s/Merrilee Zawadzki
Merrilee Zawadzki
101 S. Union Street, Ste. 106
Plymouth, MI 48170
Respectfully submitted,
/s/Joseph Mabe
Joseph Mabe
174 SW Colesbury Avenue
Port St. Lucie, FL 34953

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been served via
the indicated method on this __ day of January, 2022 on the following parties:

Via Florida E-portal
BEHAR, GUTT & GLAZER, P.A.
IRA GUTT, ESQ.
STACEY L. GLADDING, ESQ.
DCOTA A-350
1855 GRIFFIN ROAD
FORT LAUDERDALE, FL 33004
E-mail: collections@bgglaw.com
igutt@bgglaw.com
sgladding@bgglaw.com

/s/Merrilee Zawadzki

/s/Joseph Mabe

6
EXHIBIT A

AMMENDED ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM

AMENDED ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM

COME NOW, the Defendants, MERRILEE ZAWADZKI (“Defendant” “Zawadzki”)
and the defendant, JOSEPH MABE (“Defendant” or Mabe”), appearing pro se, and files this
Amended Answer, Affirmative Defenses and Counterclaim to Plaintiff’s Complaint, as follows:

JURISDICTION AND VENUE

Admit the allegations in paragraph 1 of the Complaint to the extent it purports to be an action for
damages.
Defendant avers that Paragraph 2 of the Complaint contains information unknown to the Defendants,
and is therefore denied.

Defendants admit the allegations in paragraph 3 of the Complaint that MERRILEE ZAWADZKI is a
resident of Wayne County, but deny she is sui juris, as she has a power of attorney used in the
underlying case.
Defendants admit the allegations in paragraph 4 of the Complaint that JOSEPH MABE is a resident
of St. Lucie County, Florida and is sui juris.
Defendants deny the allegations in paragraph 5 of the Complaint and demand strict proof of the
averments thereof. Defendants state that the underlying dispute involved bankruptcy proceedings for
Villas of Windmill Point II Property Owners Association, Inc., which is located in Port St Lucie,
Florida. While the bankruptcy proceedings were before the U.S. Bankruptcy court for the Southern
District of Florida and the plaintiff’s place of business is in Broward County Florida, this is a dispute
that involves Port Saint Lucie, Florida and was litigated from the U.S. Bankruptcy Court for Southern
District of Florida. West Palm Beach Division.
Defendants deny the allegations in paragraph 6 of the Complaint.
Defendants deny the allegations in paragraph 7 of the Complaint.
ALLEGATIONS COMMON TO ALL COUNTS
Defendants agree in part and deny in part, the allegations in paragraph 8 of the Complaint. It is
Admitted that BEHAR, GUTT, & GLAZER, P.A. (“BGG”) and the Defendants entered into an
agreement with BBG and agreed to an hourly rate. It is denied that the legal services agreed upon
were performed. And admit what purports to be a copy of the Agreement is attached marked as
Exhibit “A.”
Defendants admit the allegations in paragraph 9 of the Complaint but dispute the amount of said
invoices and how timely they were filed.
Defendant admits the allegations in paragraph 10 of the Complaint in part and denies them in part.
Defendants agree that BGG preformed ongoing services. However, they deny that there was no
objection. See attached. (Exhibit A).

Defendants admit in part and deny in part the allegations in paragraph 11 of the Complaint.
Defendants admit that an order granting Expedited motion was issued. However, they deny that it was
(ECF 560) and deny that it was entered on October 24, 2021.
Defendant admits the allegations in paragraph 12 of the Complaint as to the amount deposited into the
trust account.
Defendants deny the allegations in paragraph 13 of the Complaint.
Defendants aver that there is insufficient information to admit or deny the allegations in paragraph 14
of the Complaint.
Defendants admit the allegations in paragraph 15 of the Complaint that the Plaintiff provided a notice
to the Defendants.
Defendants deny the allegations in paragraph 16 of the Complaint.
Defendants deny the allegations in paragraph 17 of the Complaint.

COUNT 1

FORECLOSURE OF ATTORNEY CHARGING LIENS

Defendants admit the allegations in paragraph 18 of the Complaint that this purports to be an action
for damages.
Defendants admit and deny the allegations in paragraph 19 of the Complaint. Defendants admit that
an agreement was entered into. However, they deny that the length of time for performing the
services was part of the agreement.
Defendants deny the allegations in paragraph 20 of the Complaint.
Defendants deny the allegations in paragraph 21 of the Complaint.
Defendants deny the allegations in paragraph 22 of the Complaint.
Defendants deny the allegations in paragraph 23 of the Complaint.

9
COUNT II

FORECLOSURE OF ATTORNEY RETANING LIEN

Defendants admit the contents of paragraph 24 of the Complaint that this purports to be an action for
damages.
Defendants admit and deny the contents of paragraph 25 of the Complaint. Defendants admit that an
agreement was entered into. However, they deny that the length of time for performing the services of
the agreement.
Defendants deny the allegations in paragraph 26 of the Complaint.
Defendants deny the allegations in paragraph 27 of the Complaint.
Defendants deny the allegations in paragraph 28 of the Complaint.
Defendants deny the allegations in paragraph 29 of the Complaint.

COUNT III
BREECH OF CONTRACT

Defendants admit the contents of paragraph 30 of the Complaint to the extent that what appears to be
a copy of a retainer agreement is attached. Defendants aver that there is insufficient information to
respond to rest of the allegations therein.
Defendants deny the allegations in paragraph 31 of the Complaint.
Defendants deny the allegations in paragraph 32 of the Complaint.
COUNT IV
OPEN ACCOUNT
Defendants aver that there is insufficient information to admit or deny the allegations in paragraph 33
of the Complaint.
Defendants deny the allegations in paragraph 34 of the Complaint.

COUNT V
ACCOUNT STATED

Defendants admit the allegations in paragraph 35 of the Complaint to the extent that before this
action there were business transactions. However, the Defendants deny the resulting balances.
Defendants admit in part the allegations in paragraph 36 of the Complaint to the extent that
statements were sent. However, the Defendants aver that there is insufficient information to respond
to rest of the allegations therein.
Defendants deny the allegations in paragraph 37 of the Complaint.
COUNT VI

SERVICES RENDERED/ QUANTUM MERUIT

Defendants deny the allegations in paragraph 38 of the Complaint.
Defendants deny the allegations in paragraph 39 of the Complaint.
COUNT VII
UNJUST ENRICHMENT
Defendants deny the allegations in paragraph 40 of the Complaint.
Defendants deny the allegations in paragraph 41 of the Complaint.
Defendants deny the allegations in paragraph 42 of the Complaint.
STATEMENT OF FACTS COMMON TO AFFIRMATIVE DEFENSES AND COUNTER

CLAIMS

The Complaint (Complaint”) in this matter was filed by BEHAR, GUTT & GLAZER, P.A. (The
“Plaintiff”, “Plaintiff/Counter- Defendant” or “BGG” or “Mr. Behar”), on December 1, 2021.
In this matter, MERRILEE ZAWADZKI (“the Defendant/Counter-Plaintiff” or “Ms. Zawadzki”) and
JOSEPH MABE (the Defendant/Counter-Plaintiff” or “Mr. Mabe”) (collectively the
“Defendants/Counter-Plaintiffs”) on or about February 10, 2021 entered into an agreement for legal
services that was reduced to a Retainer Agreement with Plaintiff/Counter-Defendant. Said Retainer is
attached as an exhibit to the Complaint.
Defendant/Counter Plaintiff paid a consultation fee of $800.00 on or about February 2, 2021 to
Plaintiff/Counter-Defendant to review documents and Evidence and discuss Defendants/Counter

Plaintiffs objectives involving a matter with Villas of Windmill Point Property Owners Association
(“the Villas”). The meeting lasted just over 3 hours.

The documents and evidence was dropped off at Mr. Behar’s office. And on or about February 10
2021 a Retainer fee of $5000.00 was paid to Plaintiff/Counter Defendant.
There is nothing in the Retainer Agreement that allows the Plaintiff/Counter- Defendant to deduct
amounts that are alleged to be due under the Retainer Agreement, from amounts that are deposited
into the Trust Account in the Villas Bankruptcy.
As it relates to the Villas Bankruptcy, there were multiple payments that were made to BGG in
excess of $60,000. However there were on going disputes and concerns about the
Defendants/Counter-Plaintiff’s Objectives and the excessive billing. Defendants made both verbal
and written concerns about the fees. Exhibit “BA” shows emails between the Plaintiff/Counter-
Defendant as it relates to the scope of the litigation and the billing.
Funds were placed into Mr. Behar’s Trust Account in the amount of $17,500 for Mr. Mabe and
$17,500 for Ms. Zawadzki.
Defendants/Counter-Plaintiffs entered into a settlement agreement, which provided that the funds be
placed into the account of BGG. Defendant/Counter-Plaintiffs did not give an option as to the
disbursement of these funds. The Settlement Agreement was not entered into voluntarily.
Immediately, during settlement negotiations, Mr. Behar told Mabe and Zawadzki that the Trustee in
the Bankruptcy filed an Expedited Motion, in order to force the approval of the Settlement
Agreement. On August 17, 2021, the Bankruptcy Judge Paul G. Hyman held a Settlement
Conference. At this meeting, Mr. Behar left to attend a funeral. The Defendants were not allowed to
participate in the global settlement, which ought to include all parties. Interestingly, the Agreement
was entered without the input, consent and/or approval of the Defendants. Besides, Mr. Behar did not
also participate since he was away for the funeral. Consequently, on August 25, 2021, a Motion in
part to allow claims for voting purposes. (Docket 539). Exhibit “C”. The Defendants severally asked
Mr. Behar to object to the said Motion, but he did not object. It is also worth noting that later, when

the Defendants were reviewing the record, they observed that the document was drafted as if there
was only one party in attendance. Instead, Defendants Mabe and Zawadzki through her power of
attorney were in attendance. The Plaintiff also failed to object to page 5 of the Motion, which stated
that he did not participate in the final numbers, when he did not participate in the negotiations at all.

Further, on September 17, 2021, the Trustee filed a Motion to Enforce the Agreement. Again,
Defendants asked Plaintiff (both verbally and by email) to object to the Motion, on the ground that all
parties did not participate in the Agreement. Exhibit “D”.
Defendants/Counter-Plaintiffs requested Mr. Behar to object to the hearing and pleadings approving
the claim for voting purposes only filed on or about 8/25/2021 Court document 538 Exhibit “ “ (just
include the entire document, but specify the page number); and purporting an amended agreed an
objection to claims on numerous occasions between August 25, 2021 and at least September 13.
Mr. Behar did not make such objections and further had to leave for a family emergency
during the time the other parties conducted such negations without Mr. Mabe, Ms. Zawadzki or there
Counsel, Mr. Behar, present. Exhibit “ ” shows emails of such request.
As to the Settlement; there was no global agreement consented to, or signed by all Parties on
September 17, 2021.
Mr. Behar states, that an Order granting motion (EFC 560) “was granted on October 24, 2021. This is
not true. (ECF 560) was docketed on September 17, 2021. The Motion was approved on September
29, 2021 and (EFC 585) was signed on October 1, 2021 and entered on October 4, 2021 (Exhibit EB).
Proceeds totaling $35,000 from the settlement were never dispersed to Ms. Zawadzki or Mr. Mabe.
Throughout the Villas bankruptcy, BGG: refused to file a pleading to seek a dismissal of the entire
bankruptcy case; fought off numerous requests to seek an evidentiary hearing to submit evidence to
the Court; and refused to object to various motions, or to join or file a proper lawsuit as requested by
Defendants/Counter- Plaintiffs. Exhibit “DC” is one example of these requests. [You may include
any other evidence you have]

On Mr. Behar’s initial meeting with Mr. Mabe and Ms. Zawadzki’s representative, he spent in excess
of 3 hours looking through Defendants/Counter-Plaintiffs Evidence and Documents. He shared with
Mabe and Zawadzki that he had been a lawyer for over 40 years of relevant experience. He further
stated that he was familiar with Chapter 7, Chapter 11 and Chapter 13 Bankruptcies and made it clear
he was a litigator.
On July 20, 2021, Defendants Counter-Plaintiffs were discussing objections to a motion being held
the next day in regards to a confirmation set for July 21, 2021. Defendants/counter Plaintiffs had
previously asked Mr. Behar to file an Objection to that Motion, which Objection did not get filed. The
Plaintiff refused to file pleadings/actions upon numerous request to submit evidence and to object to
motion. Accordingly, Mr. Behar was thwarting the efforts and refusing to submit the information and
the evidence. On that day, Mr. Behar informed us his wife was diagnosed with COVID so he had to
cancel our discussions and continue the hearing. This Objection and the evidence never got heard, to
the detriment of the Defendants/Counter –Plaintiffs. Exhibit “E”. (court docket # 505include
evidence that the hearing was continued for the said reason).
Defendant/Counter-Plaintiffs presented evidence of bad faith on multiple occasions and requested
Plaintiff/Counter-Defendant file a motion to dismiss the case. Plaintiff/Counter- Defendant failed to
file such motion. Exhibit “F” (include evidence of Bad faith that you presented).
It should be noted that the Trustee falsely represented to the bankruptcy Court that there was a
Settlement Agreement, even before the Defendant/Counter-Plaintiff had ever agreed to it. In essence,
no agreement existed since not all of the parties participated in te alleged agreement. Therefore,
Defendants aver that no agreement existed at the time the motion was filed on September 17, 2021.
The Plaintiff refused to Object to the filing of the motion and did not respond to emails sent to him
about it. (Exhibit “D”) (include any other evidence you have). There was no single agreement of
all of the parties at the time the motion was filed.

There never should have been an Expedited Motion to Approve a Settlement as parties were still
negotiating. Defendants made numerous requests both verbal and in emails, for the Plaintiff to object
to the Expedited Motion. (Exhibit “D”).
The Plaintiff/Counter-Plaintiff did not have the consent from the Defendants/Counter-Plaintiffs to
settle. Defendants made communications both verbally and in Email, which showed they were to be
the ones that decided all the issues. (Exhibit “D”). It is clear that the Defendants wanted to be the
ones that decided any and all issues. The Defendants have several exhibits showing verbal and written
requests to the Plaintiff, which the Plaintiff disregarded. Exhibit “ ”. (include any relevant
evidence).
Accordingly, Defendants had not agreed on a settlement. Instead, Defendants were coerced into the
Agreement. They did not settle on their own accord. They were under duress, and were financially
threatened. At the same time, the legal billing was extremely exaggerated and was not reflective of
the services the defendants requested. Notably, the Plaintiff told the Defendants that they would not
represent them if they did not sign the agreement.
Defendants made payments to the Plaintiff on a monthly basis. As it has already been observed
hereinabove, the billing was extremely excessive and not reflective of what was agreed upon.
Defendants aver that Mr. Behar fraudulently devised a way to force a settlement and then to take all
of the fees awarded.
Plaintiff has been paid over $60,000 by Mr. Mabe and Ms. Zawadzki and misappropriated the
$35,000 from the Settlement agreement, which was entered under duress and undue influence. The
Plaintiff then filed the instant lawsuit on December 1, 2021 and had it served on Mr. Mabe and Ms.
Zawadzki a few days before the holidays, likely hoping to get a Default judgment.
It is worth noting that no legal work was undertaken by the Plaintiff that justifies the $95,000 in legal
fees that they are seeking. The Plaintiff hasve already been paid $60,000, and added $35,000 from the
Settlement.

Mr. Mabe and Mr. Zawadzki were to receive the names of the new owners of the Villas as one of the
terms of the Settlement agreement. Notably, the Plaintiff assured Defendants/Counter-Plaintiffs they
would get the names immediately upon signing. The Plaintiff further told Mabe and Zawadzki they
had to sign the Settlement agreement before they could get the names. Mabe and Zawadzki did not
want to sign the agreement because, among other unresolved issues, there was no assurance that they
would receive the names and it was not in their best interest.
As part of the settlement agreement a confidentiality agreement was required to be signed prior to
giving the names. Mr. Behar had asked A/C Villas on a couple of occasions for the names. The
Defendants therefore reasonably believed they would get the names, following the Plaintiff’s
representations. Accordingly, Mabe and Zawadzki continually asked Mr. Behar for this agreement.
He failed to provide it. Mr. Behar continued to assure Defendants the names would be provided upon
signing. Consequently, the confidentiality agreement was never provided for review prior to court’s
approval of the Settlement agreement. Exhibit “G”.
As the day approached for the expedited hearing to enforce the Settlement Agreement, Mabe and
Zawadzki again set forth that they were promised the names of the owners. Mr. Behar made the
representation that the names would be provided upon signing the settlement agreement.
Notably, Mr. Behar sent an email requesting the names and received a response they had to have the
stipulation signed first. Mr. Behar shared this email and reiterated that “as soon as you sign you will
get the names.” Defendants/Counter plaintiffs relied on those representations made by Mr. Behar. Mr.
Behar continued to pressure Defendants/Counter-Plaintiffs into signing the Settlement Agreement.
Under extreme pressure and duress Defendants/Counter-Plaintiffs signed so that they could get names
prior to the Expedited hearing.
The foregoing notwithstanding, Defendants/Counter Plaintiffs never received the names or the
Confidentiality agreement. They were unfairly deceived, misled and pressured by the improper
motion, which was illegally expedited to force a Settlement that Mr. Behar refused to object to.
Exhibit “D”. (include any relevant evidence).

Further, the Plaintiff did not object to the approval of the agreement without the production of the
names requested by Defendant/Counter- Plaintiffs.
The Plaintiff did not also object to an erroneous item added to the Court order (docket #586) giving
an extra 14 days to produce the Names. The additional 14 days was not mentioned in the court
hearing and can be verified in the court transcript of September 29, 2021. Exhibit “H” (the
transcript) and Exhibit “I” (the Court Order).
Mr. Mabe and Ms. Zawadzki further asked the Plaintiff to request on numerous occasions from the
Bankruptcy court, recovery of statutory damages under Fla. Stat. 720.303. There were multiple
violations under this statue, whose redress was properly requested by Defendant/Counter Plaintiff.
Essentially, Defendants were asking Plaintiff to request recovery from the court. However the
Plaintiff failed to diligently pursue the recovery of these damages to the detriment the
Defendants/Counter-Plaintiffs. The same Court awarded creditors in this same over $245,000, based
on the same statute.
Fla. 720.313 5(b) Production of records specifically states in pertinent part thus:
A member who is denied access to official records is entitled to the actual damages or
minimum damages for the association’s willful failure to comply with this subsection.
The minimum damages are to be $50 per calendar day up to 10 days, the calculation to
begin on the 11th business day after receipt of the written request.
This request was made numerous times to the Trustee in the Bankruptcy case and was denied the
official records in each request. Defendants/Counter-Plaintiffs requested on numerous occasions that
Plaintiff/Counter-Defendant properly request recovery pursuant to Defendants request. Plaintiff did
not properly pursue recovery to the Defendants/Counter –Plaintiff’s determent
On or about June/JulyMay 15, 2021, Plaintiff filed an erroneous motion for the production of
Documents. Consequently, when this was heard on or about June 29, 2021, the Judge told Mr. Behar
that with his years of experience, a 2004 examination was not the proper request, and that he should
have known better. The Judge then told him to do the proper request of subpoenas.Mr. Behar was told
by the court that as an attorney with his experience that he should have known better and asked him to

file the proper subpoenas for such production. The Defendants were charged for this wrong filing
including for wasting the court time. The Petitioner also included the costs for work leading to the
motion, in the fees. Exhibit “J”.

The Plaintiff took additional time to issue such subpoenas and upon attempting to do so was told by
the subpoenaed Counsel that his client would not be available for 60 days. During this time, the
Property in question in the Bankruptcy was sold creating a very costly controversial and costly sale to
the Estate.
No legal work that was undertaken by the Plaintiff that justifies the $95,000 that was already paid.
The Plaintiff already has in excess of $60,000 and is in possession of the $35,000 that he is seeking in
this action.
Further, the Plaintiff did not request a charging lien or a retaining lien prior to withdrawing from the
Bankruptcy case where the fees he is claiming originated from and therefore is not entitled to such
Liens.
Plaintiff avers that the money was removed from the jurisdiction of the Court that presided over the
subject matter of the case without noticing the court of such liens, rendering the liens unenforceable.
Besides, the Plaintiff did not reserve jurisdiction with the bankruptcy court to consider a charging lien
before accepting the money and withdrawing from the case.
The Plaintiff is not entitled to foreclose on the funds in trust that were not earned or were derived by
improper conduct. Pursuant to American Bar Association Rule 1.5; attempts to collect unreasonable
fees are improper when derived by improper Conduct as well as Florida’s Rule 4-1.5 (a), which
prohibits illegal, prohibited, or Clearly Excessive Fees and Costs. Accordingly, the fees charged by
the Plaintiff were not reasonable, were not necessary for the request Defendants Retained the Plaintiff
for and were derived in an unethical manner.
Defendants further aver that the Plaintiff failed to correct the improper settlement Agreement ratified
on August 17 th . It is worth noting that no Agreement existed until the final party emailed a copy of the
signed Agreement dated September 24, 2021. However, the Plaintiff did not present the September

24 th Agreement to anyone. He was aware as he received it personally by email 10 full days after the
Trustee filed court docket number 560, which inaccurately stated the agreement and further stated,
erroneously, that an agreement was reached at a judicial settlement conference on August 17, 2021.It
is worth noting that this was a global agreement based on all topics and that the negations continued
after that particular meeting that Mr. Behar left early. It should also be noted that Mr. Behar did not
address this untrue statement as well. Further, Mr. Behar was also aware when court document # 572
was filed on 9/28/21, which states on page 4: “THIS SETTLEMENT AGREEMNT (“Agreement”) is
entered into on this 17 th day of September, 2021 by and between i) Leslie S Osborn, solely in his
capacity as Chapter 11 Trustee herein: ii) George Santulli (“Santulli”), iii) Carlo Patti (“Patti”), iv)
AC Villas”) , v) Joseph Mabe (“Mabe”) and vi) Merrilee Zawadzki (“Zawadzki”), (collectively the
“Parties”). Plaintiff was aware this was not accurate because at least 1 of his clients had not agreed or
signed until 10 days later when he received their email on September 27, 2021.

AFFIRMATIVE DEFENSES
AFFIRMATIVE DEFENSE NUMBER 1
(FAILURE TO STATE A CAUSE OF ACTION)

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff’s Complaint and each cause
of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for
which relief can be granted. The Plaintiff is not entitled to the money they seek in the Complaint.
Notably, they violated Florida rules of professional conduct (“FRCP”) 4-1.2 by failing to abide by the
client’s decisions. For instance, the Defendants provided Mr. Behar with evidence and asked him to
file a claim, and get the evidence in front of the judge. Mr. Behar failed to follow Defendants’
instructions. Mr. Barr also failed to plead Defendants’ legitimate bad faith concerns, and instead
intimidated Defendants that they did not know about the bad faith claim.
On the other hand, contrary to FRPC 4-1.5(1), the Plaintiff charged fees obtained by intentional
misrepresentation or fraud upon the Defendants. They did this unconscionably. For instance, in one
particular month, nothing was literally done in the case except a hearing that lasted about 2 hours and

a 1 hour meeting. The Plaintiff decided he needed to review document that he previously had, and
charged about $16,000 for that month.

Also, contrary to FRCP 4-8.4(c), the Plaintiff engaged in conduct involving dishonesty, fraud, deceit,
or misrepresentation. For instance, when seeking the names of the new owners of the association, Mr.
Behar reiterated that “as soon as you sign you will get the names.” Defendants relied on those
representations made by Mr. Behar, and approved the Agreement. However, the Defendants never
received the names or the Confidentiality agreement.

AFFIRMATIVE DEFENSE NUMBER 2
(UNCLEAN HANDS)

Defendants invoke the Doctrine of Unclean Hands and allege that the Plaintiff acted in a dishonest or
fraudulent manner with respect to the dispute at issue in this case.
The Plaintiff’s conduct was unfair and not in good faith when they failed to provide the service
Defendants asked for. Notably, they acted without Defendants’ consent, failed to follow Defendants’
instructions, failed to make requested objections of material nature.
For instance, on September 17, the trustee in the bankruptcy case filed an expedited motion to enforce
the agreement that did not exist. All parties had not agreed. That notwithstanding, the Plaintiff
insisted, falsely, that Defendants had consented to the Agreement. It is clear that the Plaintiff settled
the agreement without the consent of the Defendants. This can be seen from the fact that he failed to
object to the Expedited Motion.

AFFIRMATIVE DEFENSE NUMBER 3
(VENUE IS NOT PROPER IN BROWARD COUNTY)

Pursuant to Fla. Stat. §47.011, “[a]ctions shall be brought only in the county where the defendant
resides, where the cause of action accrued, or where the property in litigation is located. This section
shall not apply to actions against nonresidents.”
In this matter the Villa Bankruptcy case involved an association located in Port Saint Lucie, County,
Florida, and was litigated before the U.S. Bankruptcy Court for the Southern District of Florida, West

Palm Beach Division. One defendant lives in Port St Lucie County and both the properties owned by
the Defendants are in Port St. Lucie County

This matter should therefore have been filed in Port Saint Lucie County, Florida or Palm Beach
County, Florida and the Defendants intend to file a Motion for Change of Venue in that regard.

AFFIRMATIVE DEFENSE NUMBER 4
(FAILURE TO MITIGATE DAMAGES)

The Plaintiff failed to mitigate damages in this matter.
At all times material herein, Plaintiff failed and neglected to mitigate damages so as to reduce and or
diminish his claim. Notably, the Plaintiff had an obligation to abide by the dictates of the rules of
professional conduct, which Plaintiff was subjected to. Instead, Plaintiff further carried out blatant
violations of the said rules, as already alleged hereinabove.

AFFIRMATIVE DEFENSE NUMBER 5
(FAILURE TO ABIDE BY CLIENT’S DECISIONS)

The Plaintiff failed to abide by client’s decisions, and thus violated Florida Rules of Professional
Conduct, Rule 4-1.2, which requires that a lawyer must abide by a client’s decision concerning the
objectives of representation and reasonably consult with the client as to the means that they are to be
pursued and abide by a client’s decision whether to settle a matter.
The Defendants provided Mr. Behar with evidence and asked him to file a claim, and get the evidence
in front of the judge. Mr. Behar failed to follow Defendants’ instructions. Mr. Barr also failed to plead
Defendants’ legitimate bad faith concerns, and instead intimidated Defendants that they did not know
about the bad faith claim.

AFFIRMATIVE DEFENSE NUMBER 6
(CHARGING A CLEARLY EXCESSIVE FEE AND COSTS)

Florida Rules of Professional Conduct, Rule 4-1.5, provides that a lawyer may not charge a clearly
excessive fee or costs.

The Plaintiff failed to abide by the Defendants’ decisions, and was therefore not entitled to the
amount of fees they claimed. The Plaintiff now demands the amounts from the Trust Account, after
already being paid large amounts. It follows; the Plaintiff is seeking additional and clearly excessive
fees or costs. Fees and cost are not reflective of what Defendants asked Plaintiff to do and were
derived by improper conduct.

AFFIRMATIVE DEFENSE NUMBER 7

(DURESS)

The Defendants did not agree to the terms of the Settlement Agreement. The Plaintiff told the
Defendants that if the Settlement Agreement was not signed he would not represent them. The
Defendants sent emails telling the Plaintiff that they were under duress, and that he was using undue
influence to get them to sign, including telling the Defendants that the Bankruptcy Trustee is going to
file a motion to enforce the settlement. Defendants told Plaintiff they can’t do that as there was no
agreement. Plaintiff contended there was an agreement, however the Defendants had not given
consent to Plaintiff and did not agree to the settlement. Plaintiff badgered the Defendants with
numerous calls, emails and texts and increased the bill and used undue influence to obtain a signature
for the Settlement Agreement. The Settlement Agreement was therefore not entered into voluntarily,
and it was the desire of Mr. Mabe and Ms. Zawadzki to have the funds that were paid into the Trust
Account of BGG.
Immediately, and with no approval from Mr. Mabe and Ms. Zawadzki, the Bankruptcy Trustee
filed an Expedited Motion to Approve/Enforce the Settlement Agreement. Defendants requested
Plaintiff to object to this motion. Plaintiff refused to object with the knowledge there was not an
agreement of all parties. Trustee received an Order granting said motion.
The Plaintiff stated that an Order granting said motion (EFC 560) “was granted on October 24,
However this is not true because (ECF 560) was docketed on September 17, 2021 and the
Motion to Approve Settlement Agreement was approved on October 4, 2021 (EFC 586) in original
complaint this was in error as 585. Exhibit “EB”.

Throughout the Villa Bankruptcy case, BGG refused to file a pleading to seek a dismissal of the
entire bankruptcy case and fought off numerous Defendants’ requests to seek an Evidentiary Hearing
in which to submit evidence to the Bankruptcy Court. Exhibit “C”.
ADDITIONAL DEFENSES
Defendant reserves the right to assert additional defenses and claims as they become evident
through discovery.
WHEREFORE, DEFENDANT demands judgment against the Plaintiff as follows:
a) Dismissal of the Complaint in its entirety;
b) Costs and reasonable attorneys’ fees and cost as permitted by law, contract or applicable
statute(s); and
c) Such further legal and equitable relief as this Court may deem just and proper.

COUNTERCLAIM
JURISDICTION & VENUE

This is an action for damages in excess of $30,000, exclusive or interest, costs and
attorneys’ fees.
Venue is proper in this Court as this is an action for Breach of Contract, Unfair and
Deceptive Trade Practices and Intentional Infliction of Emotional Distress, and seeking
an award of money damages, including actual damages and reasonable attorneys’ fees
and costs; an award of compensatory damages under common law, all stemming from
conduct that occurred in Florida, in Saint Lucie County, Florida.
By filing this Counterclaim, the Defendants/Counter-Plaintiffs do not waive any
arguments as to jurisdiction and venue, or waive the right to file a Motion For Change of
Venue.

The previously set forth Statement of Facts Common to Affirmative Defenses and
Counterclaim are fully incorporated as if fully set forth herein.
CAUSES OF ACTION
COUNT I
BREACH OF CONTRACT
Defendant/Counter-Plaintiff repeats and re-alleges the allegations of the preceding
paragraphs, as through fully set forth herein and sue Plaintiff/Counter-Defendant for
Breach of Contract as follows:
Plaintiff/Counter-Plaintiff materially breached the Retainer Agreement by failing to
undertake or perform the services required thereunder and by failing to fulfill the
obligations thereunder. For instance, Paragraph 1 of the Retainer Agreement provides
that “Counsel will review, prepare, negotiate, and revise all documentation related to the
matter.” The Defendants provided Mr. Behar with evidence and asked him to file a claim,
and get the evidence in front of the judge. Mr. Behar failed to follow Defendants’
instructions. Further, Mr. Behar fought off numerous Defendants’ requests to seek an
Evidentiary Hearing in which to submit evidence to the Bankruptcy Court
Paragraph 4 of the Retainer Agreement obligated the Plaintiff to keep the Defendants
informed of the status of the case. The Plaintiff breached the Agreement when he
consented to the settlement agreement without informing the Defendants or obtaining
their consent.
Paragraph 4 of the Retainer also provides that the Plaintiff should maintain professional
ethics and keep the confidence of the Defendants. The said paragraph also stated thus:
“we want you to be satisfied with both the quality of our legal work and the

reasonableness of the fees we charge for those services.” Instead, the Plaintiff breached
this obligation when he lied to the Defendants. The Defendants were seeking the names
of the new owners of the association. Mr. Behar reiterated that “as soon as you sign you
will get the names.” Therefore, Defendants relied on those representations made by Mr.
Behar, and approved the Agreement. However, the Defendants never received the names
or the Confidentiality agreement.

Besides, the Plaintiff refused to file a pleading to seek a dismissal of the entire
bankruptcy case and fought off numerous Defendants’ requests to seek an Evidentiary
Hearing in which to submit evidence to the Bankruptcy Court.
As a direct and proximate result of the material breach of contract, Defendant/Counter-
Plaintiff have incurred damages, substantially in excess of $30,000.00, which included,
inter alia, direct and consequential damages.
WHEREFORE, Defendant/Counter-Plaintiff respectfully requests that this Court declare that
Plaintiff/Counter-Defendant breached their contractual agreement, and award
Defendant/Counter-Plaintiff with an amount fair and just to account for its money damages,
interest, reasonable attorneys’ fees, and costs incurred herein, and for such other relief as this
court deems just and proper.

COUNT II

VIOLATIONS OF FLORIDA’S UNFAIR AND DECEPTIVE TRADE PRACTICES ACT,

CHAPTER 501, PART II, FLORIDA STATUTES

Defendant/Counter-Plaintiff repeats and re-alleges each and every allegation in the above
paragraphs, as if set forth fully herein.

Pursuant to § 501.204 (1), Florida Statutes, “Unfair methods of competition,
unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct
of any trade or commerce are hereby declared unlawful”
As set forth in the above paragraphs, Plaintiff/Counter-Defendant has willfully engaged
in the acts and practices that amount toi unfair and deceptive practices, when they he
knew or should have known that such acts and practices were unfair and deceptive or
otherwise prohibited by law. For instance, the Plaintiff entered the Settlement Agreement
without the consent of the Defendants. He also failed to file proper objections, to present
evidence to the Court, and to make the filings requested by the Defendants.
Further, the Plaintiff placed the Defendants under duress when the Plaintiff told the
Defendants that if the Settlement Agreement was not signed he would not represent them.
The Plaintiff insisted on the settlement Agreement even though he had not obtained the
consent of the Defendants.
The Plaintiff also lied to the Defendants when he told Defendants that he would provide
the names of the new owners of the Villas as one of the terms of the Settlement
agreement. However, the Plaintiff failed to provide the said names.
These above-described acts and practices of the Plaintiff/Counter-Defendant have injured
and will likely continue to injure and prejudice the Defendant/Counter-Plaintiff.
Pursuant to § 501.211 (2), Florida Statutes, “In any action brought by a person who has
suffered a loss as a result of a violation of this part, such person may recover actual
damages, plus attorney’s fees and court costs as provided in s. 501.2105.” Accordingly,
aAs a direct and proximate result of Plaintiff/Counter-Defendant’s unfair and deceptive
practices, Defendant/Counter-Plaintiff have incurred damages substantially in excess of

$30,000.00, which include, inter alia, direct and consequential damages, extra expenses,
loss of profits, attorney’s fees and damages.
WHEREFORE, Defendant/Counter-Plaintiff request that this Court enter judgment in its favor
and against Plaintiff/Counter-Defendant for compensatory damages substantially in excess of
$30,000.00, including direct and consequential damages, extra expenses, loss of profits,
attorney’s fees and damages and for temporary and injunctive relief prohibiting
Plaintiff/Counter-Defendant from continuing to engage in activities against the
Defendant/Counter-Plaintiff.

COUNT III

BREACH OF FIDUCIARY DUTIES

Defendants/Counter-Plaintiffs repeat and reallege each and every allegation in the above
paragraphs, as if set forth fully herein.
The elements of a claim for breach of fiduciary duty are: the existence of a fiduciary
duty, and the breach of that duty such that it is the proximate cause of the plaintiff’s
damages. See Gracey v. Eaker, 837 So. 2d 348, 353 (Fla. 2002) and Fla. Std. J. Inst.
(Civ.) 451.5
A breach of fiduciary duty can be negligent or intentional. See Palafrugell Holdings, Inc.
v. Cassel, 825 So. 2d 937, 939 n. 1 (Fla. 3d DCA 2001)
The existence of a fiduciary duty can be proven if a relationship exists between the
Plaintiff and Defendant in which the Plaintiff put his/her/its trust in Defendant to protect
financial or property interests, secrets, confidences or private information and Defendant
accepts that trust. See Fla. Std. J. Inst. (Civ.) 451.7

Plaintiff/Counter-Defendant, by and through its employees, agents, representatives and
collectors owed Defendant/Counter-Plaintiff a fiduciary duty and the breach of that duty
is the proximate cause of the damages of the Defendant/Counter-Plaintiff.
Under the said fiduciary duty, the Defendants trusted that the Plaintiff would carry out
their obligations under the Retainer Agreement. Further, the Retainer Agreement
obligated the Plaintiff to adhere and be bound to professional ethics. In paragraph 4 of the
Retainer Agreement, the Plaintiff expressly stated that he will diligently keep the
Defendants informed. Instead, the Plaintiff consented to a Settlement agreement without
informing the Defendants or obtaining their consent. The Plaintiff also refused to file a
pleading to seek a dismissal of the entire bankruptcy case and fought off numerous
Defendants’ requests to seek an Evidentiary Hearing in which to submit evidence to the
Bankruptcy Court.
WHEREFORE, Defendant/Counter-Plaintiff request that this Court enter judgment in its favor
and against Plaintiff/Counter-Defendant for compensatory damages substantially in excess of
$30,000.00, including direct and consequential damages, extra expenses, loss of profits,
attorney’s fees and damages, and for such other relief as this court deems just and proper.

COUNT IV
LEGAL MALPRACTICE

Defendants/Counter-Plaintiffs repeats and re-allege each and every allegation in the
above paragraphs, as if set forth fully herein.
The Plaintiff/Counter-Defendant was employed by the Defendant/Counter-Plaintiff as
their legal counsel. A Retainer Agreement was entered in that regard, which Agreement
set out the obligations of both the Defendant and the Plaintiff.

The Plaintiff/Counter-Defendant neglected a reasonable duty owed to the
Defendant/Counter-Plaintiff. For instance, according to Florida Rules of Professional
Conduct, Rule 4-1.2, a lawyer must abide by a client’s decision concerning the objectives
of representation and reasonably consult with the client. However, the Plaintiff made
decisions without involving the Defendants. The Plaintiff consented a Settlement
Agreement without informing (and obtaining the consent) of the Defendants.
Further, Rule 4-1.5, provides that a lawyer may not charge a clearly excessive fee or
costs. However, the Plaintiff is demanding the amounts from the Trust Account, after
already being paid large amounts. Besides, in one particular month, nothing was literally
done in the case except a hearing that lasted about 2 hours and a 1 hour meeting. The
Plaintiff decided he needed to review document that he previously had, and charged
about $16,000 for that month.
It follows; the Plaintiff is seeking additional and clearly excessive fees or costs, which are
not reflective of the services they offered to the Defendants.
The negligence of the Plaintiff/Counter-Defendant was the proximate cause of the
Defendant/Counter-Plaintiff.
The Defendant/Counter-Plaintiff compensatory damages – and – to the extent applicable
– special damages, include, but are not necessarily limited to: a) the loss on the Villa
Bankruptcy, b) the loss of monies paid to the Plaintiff/Counter-Defendant, c) attorneys’
fees in defending against legal actions related to the Villa Bankruptcy and e) ongoing
financial damages related to the Villa Bankruptcy.
WHEREFORE, the Defendant/Counter-Plaintiff demand entry of a Final Judgment against the
Plaintiff/Counter-Defendant, jointly and severally, due to legal malpractice and in that Final

Judgment award the Defendant/Counter-Plaintiff its compensatory damages, special damages,
punitive damages, the costs of this action, pre and post judgment interest, and such other relief
that the Court deems just and equitable.

COUNT V
FRAUD

Defendants/Counter-Plaintiffs repeats and re-alleges each and every allegation in the
above paragraphs, as if set forth fully herein.
The Plaintiff/Counter-Defendant was employed by the Defendant/Counter-Plaintiff as
their legal counsel.
The Plaintiff/Counter-Defendant entered a Retainer Agreement with the Defendant. In
paragraph 4 of the Retainer Agreement, for instance, the Plaintiff expressed their
intention to be bound by Professional ethics. Further, on the said paragraph, the Plaintiff
expressly stated that they would diligently ensure that the Defendant is informed of the
status of the case.
The Defendant relied on the said representations knowing that the Plaintiff would abide
by their obligations in the Retainer Agreement.
However, as it has already been alleged in this Counter-Claim, the Plaintiff failed to
adhere to the obligations in the Retainer Agreement. Notably, on September 17, the
trustee in the bankruptcy case filed an expedited motion to enforce the agreement that the
Plaintiff had not agreed to. That notwithstanding, the Plaintiff insisted, falsely, that
Defendants had consented to the Agreement. It is clear that the Plaintiff settled the
agreement without the consent of the Defendants.

Interestingly, the Plaintiff now demands the amounts from the Trust Account, after
already being paid large amounts. It follows; the Plaintiff is seeking additional and
clearly excessive fees or costs. Fees and cost are not reflective of what Defendants asked
Plaintiff to do and were derived by improper conduct.
WHEREFORE, the Defendant/Counter-Plaintiff prays this Court finds the Plaintiff/Counter-
Defendant, jointly and severally, liable for fraud, and in the Final Judgment award the
Defendant/Counter-Plaintiff compensatory damages, special damages, the costs of this action,
pre and post judgment interest, and such other relief that the Court deems just and equitable.

DEMAND FOR JURY TRIAL

Defendants/Counter-Plaintiffs demand trial by jury of all issues so triable as of right.

DATED this ___day of January, 2022.

Respectfully submitted,

/s/Merrilee Zawadzki
Merrilee Zawadzki
101 S. Union Street, Ste. 106
Plymouth, MI 48170
Respectfully submitted,
/s/Joseph Mabe
Joseph Mabe
174 SW Colesbury Avenue
Port St. Lucie, FL 34953

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been served via
the indicated method on this __ day of January, 2022 on the following parties:

/s/Merrilee Zawadzki

/s/Joseph Mabe

EXHIBIT “A”

EXHIBIT “B”

EXHIBIT “C”

EXHIBIT “D”

EXHIBIT “E”

EXHIBIT “F”

EXHIBIT “G”

EXHIBIT “H”

EXHIBIT “I”

EXHIBIT “J”

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