Federal judge denies four of five requests from alleged victim of energy-saving scam

By Sandra Lane | Sep 23, 2018

MIAMI – Judge Darrin P. Gayles of the U.S. District Court, Southern District of Florida, ruled on Sept. 13 in favor of InTrust  Bank, et al., in a case involving alleged fraudulent sales of air conditioners. 

The alleged victim will have the opportunity to file an amended complaint, the judge ruled.

Francisca D. Locicero of Broward County is claiming violations of the Truth in Lending Act, Florida Credit Service Organization Act and Florida Consumer Collection Practices Act.

The defendants filed a motion to dismiss all of plaintiff’s claims. Judge Gayles granted certain parts of these motions and denied other parts. He said that Locicero will have the opportunity to re-plead by Sept. 28. 

She allegedly received an unsolicited phone call on July 24 from a salesperson for Fluid Air Concepts telling her that she could “qualify” for a program for low-income residents to obtain a new air-conditioning system and save on energy costs. 

The caller allegedly said the program was available through Florida Power & Light, which is false.

Locicero claims she was falsely informed that she would have no costs involved. However, Fluid Air allegedly created an $8,000 loan in her name through InTrust Bank to finance the purchase of the air conditioner, although she knew nothing about this. 

Believing that such a program did exist, Locicero signed a document titled Agreement for Change Out in Service. Later, she discovered it did not have a clause saying she had the right to cancel as required by Florida statutes.  

Within 48 hours of signing this agreement on July 30, 2016, Fluid Air replaced Locicero’s air conditioner with a new unit. However, no permit was obtained, and Fluid Air did not comply with code requirements.

Several days after installation of the new unit, Locicero said she was surprised to receive a letter from GreenSky, a company that brokers loans, notifying her of an $8,000 loan bearing her name financed by InTrust Bank. 

Subsequent information revealed that part of the loan was paid to Fluid Air and that GreenSky kept part of the money.

In his ruling on these motions, Judge Gayles wrote: “The purpose of a motion to dismiss filed pursuant to Federal Rules of Civil Procedure is to test the facial sufficiency of a complaint. The rule permits dismissal of a complaint that fails to state a claim upon which relief can be granted. It should be read alongside Federal Rule of Civil Procedure which requires a short and plain statement of the claim showing that the pleader is entitled to relief.”

He continued, “Although a complaint challenged by a motion to dismiss does not need detailed factual allegations, a plaintiff is still obligated to provide the grounds for his entitlement to relief and a formulaic recitation of the elements of a cause of action will not do. When a complaint is challenged, a court will presume that all well-pleaded allegations are true and view the pleadings in the light most favorable to the plaintiff.”

In addition, he also said that once a court identifies pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth, the court must determine whether the well-pled facts state a claim to relief that is plausible. A complaint can only survive a motion to dismiss if it contains factual allegations that are enough to raise a right to relief above the speculative level, on the assumption that the factual allegations in the complaint are true.''

The discussion was closed with him saying, “A well-pled complaint survives a motion to dismiss even if it strikes a savvy judge that actual proof of these facts is improbable, and that a recovery is very remote and unlikely.”

He announced that “plaintiff shall file a second amended complaint by September 28, 2018.  Done and ordered.” 

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