          Case: 16-10380   Date Filed: 04/14/2020   Page: 1 of 24



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 16-10380
                     ________________________

                 D.C. Docket No. 1:14-cv-01418-TWT



THE CADLE COMPANY II, INC.,

                                             Plaintiff - Counter Defendant
                                             Appellant,

versus

KENNETH MENCHION,
PADRICA MENCHION,
THE BEST SERVICE CO. INC.,

                                             Defendants - Cross Claimants -
                                             Counter Claimants - Appellees,

PRIME ASSET FUND V, LLC,

                                            Defendant - Cross Defendant -
                                            Appellee.
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                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________
                                (April 14, 2020)

Before MARTIN, JILL PRYOR, and JULIE CARNES, Circuit Judges.

JULIE CARNES, Circuit Judge:

      The Cadle Company II, Inc. [hereinafter “Plaintiff”] purchased a

portfolio of loan accounts from defendant Prime Asset Fund V, LLC. The

“Unsecured Loan Sale Agreement” consummating the sale included a long list of

loan accounts included in the portfolio. One of these accounts was a home-equity

line-of-credit account for defendants Kenneth and Padrica Menchion, who had

executed a note in the principal amount of $200,000. Prime Asset, however,

had already assigned the Menchion account to defendant The Best Service Co.,

Inc., for collection prior to its sale to Plaintiff. Pursuant to the agreement with

Prime Asset, Best Service subsequently sued the Menchions in state court on

their note and settled with them for $150,000. As provided for by the

Collection Agreement between the two companies, Best Service kept $60,000

of the money collected in payment for its services and remitted the remaining

$90,000 to Prime Asset.

      Plaintiff filed this suit against the Menchions, Best Service, and Prime

Asset. Plaintiff and defendants Best Service and the Menchions filed motions

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for summary judgment; defendant Prime Asset did not file a motion for

summary judgment. The district court denied Plaintiff’s motions for summary

judgment, but granted summary judgment for Best Service and the Menchions.

Given the absence of a motion for summary judgment by Prime Asset,

Plaintiff’s claims against Prime Asset remained pending.

      Seeking an interlocutory appeal of the court’s summary judgment order

in favor of Best Service and the Menchions, Plaintiff requested that the district

court certify this order as final under Federal Rule of Civil Procedure 54(b).

The district court granted Plaintiff’s motion, and this appeal followed. After

careful review, and with the benefit of oral argument, we affirm the district court’s

grant of summary judgment to the Menchions and Best Service.

I.    BACKGROUND

      A.     Events Predating the Present Litigation
      Having established a home-equity line-of-credit account, the Menchions

borrowed $200,000. The original lender assigned the account to defendant Prime

Asset. The Menchions later defaulted.

      On August 17, 2011, Prime Asset entered into a “Collection Agreement”

with defendant Best Service. The Collection Agreement defined the terms

between Best Service and Prime Asset for “any and all accounts” assigned to Best

Service for collection, including how the proceeds of any collection efforts would


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be divided. Under this agreement, Best Service would receive 40% of collected

proceeds for accounts requiring legal action and 30% for accounts not requiring

legal action. Paragraph 7 of the Collection Agreement states that Prime Asset

“agrees to leave all assigned loans and/or accounts in the hands of Best [Service]

for a period of at least [120 days] from the date of assignment. After which time

and upon [Prime Asset’s] request, said loans and/or accounts will be returned

without cost, and free from litigation on Best’s part . . . . [except] (b) If legal action

has been initiated on an account, it shall remain with Best until said legal action

and/or judgment is barred for further enforcement by the applicable statute of

limitations or is otherwise resolved.”

      On November 29, 2012, in preparation for Best Service’s litigation against

the Menchions, Prime Asset’s Operations Manager Karen Cooksey executed an

affidavit stating that “on or about November 15, 2011, [Prime Asset] the owner of

[the Menchion Account], assigned all of its interests and all its rights thereunder,

including the right to file suit and collect on this account, to The Best Service Co.,

Inc.” That same day, Cooksey executed an “Assignment for Collection” stating

that “the [Menchion] account, including principal and accruing interest, is owned

by [Prime Asset] and was assigned to [Best Service] for collection, on the agreed

rate of commission, with full authority to collect and/or sue upon same on

November 15, 2011.”


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      A few weeks later, on December 21, 2012, Defendant Prime Asset and

Plaintiff Cadle Company entered into an “Unsecured Loan Sale Agreement”

pursuant to which Prime Asset sold a portfolio of accounts to Plaintiff. The total

unpaid principal balance of the loans included in the portfolio was $26,485,346.

Plaintiff paid $100,999.22 for the portfolio, which represented .0038134 of the

over $26-million principal balance on the underlying loans. Despite Prime Asset’s

prior assignment of the Menchion account to Best Service for collection, the

Menchion account was listed in the 14-page Exhibit to the Loan Sale Agreement as

one of the numerous accounts sold to Plaintiff.

      Section 6 of the Loan Sale Agreement includes a number of representations

and warranties concerning Prime Asset’s ability to convey unencumbered to

Plaintiff this portfolio of accounts. As it relates to this case, Prime Asset

represented in Section 6.2 that it had “full right and authority to sell, assign and

transfer” all accounts, including the Menchion account, to Plaintiff. Prime Asset

also represented that “[n]o person or entity holds any competing claim of an

interest” in the Menchion account. Prime Asset further represented that it was

“sole owner” of the Menchion account, that it was “free and clear of any lien,

encumbrance or security interest whatsoever,” and that it was not the “subject of a

pending or threatened Claim, including but not limited to a Claim by a servicing




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agent or attorney for [Prime Asset] under a collection or contingency

arrangement.” (emphasis added)

      As to the remedy available to Plaintiff for Prime Asset’s sale of an account

to which it did not have unencumbered rights, Section 6.3 of the Loan Sale

Agreement states that a repurchase of that loan by Prime Asset is the “Sole

Remedy for Breach of Representations and Warranties”:

      It is expressly understood that the Seller’s representations and
      warranties are made as of the Closing Date. If on any date between the
      Closing Date and April 30, 2013, the Buyer discovers that Seller
      breached an representation or warranty set forth in this Agreement, the
      Buyer shall give written notice to Seller within ten (10) calendar days
      of the discovery of such breach, and the Seller shall have the right to
      cure such breach during a period of sixty (60) calendar days after
      receipt of such notice. If such breach or failure is not duly cured with
      such sixty (60) day period, or not otherwise waived or consented to in
      writing by Buyer, then Seller shall repurchase the subject Unsecured
      Loans at the Repurchase Price. The remedies set forth in this Section
      6.3 shall be the exclusive remedies of the Buyer for any breach by Seller
      of a representation or warranty, and the Buyer shall not be entitled to
      any other rights, remedies or other relief, at law or in equity.
(emphasis added)

      In short, per the terms of this provision, Plaintiff’s only remedy for a breach

of Prime Asset’s warranty that it had an unencumbered right to sell the Menchion

account was to have Prime Asset repurchase that account. As prescribed by the

agreement, the repurchase price for the Menchion account would be $762.68 (i.e.

the loan amount of $200,000 times the Purchase Price basis points of .0038134 as

defined on page 2 of the Loan Sale Agreement).

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      Plaintiff contacted Best Service on or about January 23, 2013 and advised

the company that Plaintiff had purchased a pool of loans from Prime Asset that

included the Menchion account. Upon inquiry by Best Service, Prime Asset

explained to Best Service that it had inadvertently included the Menchion account

in the Loan Sale Agreement with Plaintiff, that the account was not properly

assigned to Plaintiff, and that it was subject to the Section 6.3 repurchase

provision.

      Relying on its Collection Agreement with Prime Asset and on the latter’s

representations, Best Service filed its planned state court legal action to collect on

the Menchion account on February 7, 2013. Shortly thereafter, on March 22,

Plaintiff also filed a lawsuit against the Menchions to collect on this same account,

but Plaintiff dismissed the action on May 6, 2013 after learning that Best Service

had already filed its own lawsuit. Plaintiff never attempted to intervene in Best

Service’s lawsuit nor did it try to stop Best Service’s collection efforts.

      On April 11, 2013, the state court entered a default judgment against the

Menchions in the lawsuit filed by Best Service in the amount of $273,748.75,

which included the principal, accrued interest, fees, and costs. On June 26, the

Menchions settled with Best Service, paying $150,000 in full satisfaction of the

default judgment. With legal action having been taken, Best Service retained 40%




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of the proceeds ($60,000) pursuant to the terms of the Collection Agreement, and it

remitted to Prime Asset the remainder ($90,000).

       B.      Procedural History of Present Litigation

       On April 22, 2014, Plaintiff filed this case in the State Court of Henry

County, Georgia, seeking to undo the Menchions’ settlement of their debt on the

underlying note and to recover the $150,000 collected on the Menchion account by

Best Service. Best Service removed the case to the United States District Court for

the Northern District of Georgia on the basis of diversity jurisdiction.1

       As to the Menchions, Plaintiff sought payment of the entirety of their

original note, notwithstanding the fact that the state court had issued a

judgment and that the Menchions had settled any obligation they owed under

that note. To that end, Plaintiff filed two claims against the Menchions: one

claim seeking full payment of the original note and a second claim asking the

district court to set aside the state court judgment pursuant to which the

Menchions had paid Best Service $150,000 in settlement of that judgment.

Plaintiff sued Best Service for tortious interference, arguing that by inducing

the Menchions to settle their obligation on the note, Best Service had induced

them to breach their contractual obligations to Plaintiff. Plaintiff sued both


1
  We have twice remanded to the district court the question whether the parties were completely
diverse, which is necessary to satisfy the requirements for diversity jurisdiction. Following the
second remand, the parties engaged in the necessary discovery and demonstrated to the district
court that there was complete diversity. We are likewise satisfied that complete diversity exists.
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Best Service and Prime Asset for “money had and received,” alleging that

these two entities should remit to Plaintiff all money they received from the

Menchions in settlement of the note. Plaintiff further claimed that Prime Asset

had breached its contract with Plaintiff.

      Plaintiff filed a motion asking the district court to grant it summary

judgment on some of its claims, including its claim on the note against the

Menchions, its claim for money had and received against Best Service and Prime

Asset, its breach of contract claim against Prime Asset, and its claim to set aside

the state court judgment. The Menchions and Best Service filed a joint motion

seeking summary judgment as to all claims made against them. The district court

granted summary judgment in favor of Best Service and the Menchions as to all of

Plaintiff’s claims against them; it denied Plaintiff’s motion for summary judgment.

Defendant Prime Asset did not file a motion for summary judgment.

      As to the Menchions, the court concluded that they were protected by the

doctrine of res judicata, as the state court judgment resolved the claims against

them based on their default on the home-equity loan note. As to the claim for

tortious interference against defendant Best Service, the court concluded that

Plaintiff had failed to satisfy the elements of such a claim. As to Plaintiff’s breach

of contract claim against defendant Prime Asset, the court agreed that, because

Prime Asset had assigned this account to Best Service prior to the sale of its


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portfolio to Plaintiff, Prime Asset had breached its warranty that the Menchions’

account was unencumbered. Nevertheless, the court noted, the contract provided

that the remedy for such a breach was the repurchase of the account by Prime

Asset at the contractual purchase price of $762.68. Given that ruling, Plaintiff’s

claim against Prime Asset and Best Service “for money had and received”—that is,

a claim requesting that these two defendants remit to Plaintiff the money that they

collected from the Menchions—likewise failed. The court noted that this claim

required Plaintiff to prove that the defendants have money to which Plaintiff is

entitled and which the defendants should not, in good conscience, be entitled to

keep. Those elements were not satisfied here because, given its prior assignment

of that account to Best Service, Section 6 of the agreement required only that

Prime Asset repurchase the Menchion account from Plaintiff. Further, Best

Service’s agreement with Prime Asset when the latter assigned the Menchion

account to Best Service expressly allowed the latter to retain $60,000 of the money

it had collected.

      Because Plaintiff’s claims against Prime Asset remained pending—as the

latter had not filed a motion for summary judgment—there was no final judgment

from which Plaintiff could appeal. Nevertheless, wishing to appeal the district

court’s grant of summary judgment to Best Service and the Menchions, Plaintiff

sought to file an interlocutory appeal as to these rulings. To accomplish this,


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Plaintiff filed a motion asking the district court to enter an order, pursuant to

Federal Rule of Civil Procedure 54(b), rendering as final the court’s grant of

summary judgment to the Menchions and Best Service. The district court granted

Plaintiff’s motion and entered final judgment for Best Service and the Menchions

on Plaintiff’s claims against these two defendants. Plaintiff timely appealed, and

we now consider its appeal of the district court’s grant of summary judgment to

Best Service and the Menchions.

II.   DISCUSSION

      A.     Plaintiff’s Claim for Money Had and Received against Best
             Service

      “We review a summary judgment ruling de novo, viewing the materials

presented and drawing all factual inferences in a light most favorable to the non-

moving party.” Interface Kanner, LLC v. JPMorgan Chase Bank, N.A., 704 F.3d

927, 931 (11th Cir. 2013) (quotation marks omitted).

      The parties confirmed at oral argument that no claims remain pending

against the Menchions. Accordingly, we affirm the district court’s judgment

dismissing all claims against the Menchions. Plaintiff also abandoned appeal of

the following claims: (1) tortious interference against Best Service, (2) punitive

damages against Best Service, and (3) the claim to set aside the judgment rendered

by the state court on Best Services’ suit against the Menchions.



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      This means that the only claim from Plaintiff’s interlocutory appeal that

remains to be reviewed is Plaintiff’s claim against Best Service for money had and

received. In the Loan Sale Agreement, Prime Asset had represented and warranted

that it had “full right and authority to sell, assign and transfer the Unsecured Loans

to” Plaintiff. More particularly, Prime Asset represented that no loan within the

portfolio was “the subject of a pending or threatened claim,” including a claim by

“a servicing agent” “under a collection . . . arrangement.” As Prime Asset

concedes, this was an untrue statement as to the Menchion account because prior to

selling the portfolio to Plaintiff, Prime Asset had “assigned all of its interests and

all its rights thereunder, including the right to file suit and collect on this account”

to Best Service. And just a few weeks before closing on the sale of the portfolio

with Plaintiff, Prime Asset had formally executed an “Assignment for Collection”

in Best Service’s favor, confirming that the latter had full authority to collect on

the Menchion account and/or to sue. As noted, Prime Asset and Best Service

further entered into a Collection Agreement setting out Best Service’s rights,

including compensation, under the agreement.

      As Prime Asset and Best Service argued before the district court, the Loan

Sale Agreement between Prime Asset and Plaintiff provides for the exclusive

remedy when such a breach occurs. Section 6.3 states that Plaintiff’s sole remedy

when Prime Asset makes incorrect representations concerning its rights to a


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particular account is for Prime Asset to repurchase the particular account. Plaintiff

rejected Prime Asset’s offer to repurchase, instead arguing to the district court that

the Loan Sale Agreement’s limitation of remedies provision is unreasonable and

therefore should not be enforced. The district court rejected that argument, as do

we.

      “In Georgia, a claim for money had and received is quasi contractual.”

Cappuccitti v. DirecTV, Inc., 623 F.3d 1118, 1126 n.20 (11th Cir. 2010). “It ‘is

comprised of the following elements: a person has received money of the other

that in equity and good conscience he should not be permitted to keep; demand for

repayment has been made; and the demand was refused.’” Id., quoting Fernandez

v. WebSingularity, Inc., 299 Ga. App. 11 (2009) (internal quotations and citations

omitted). “More generally, [a]n action for money had and received, although legal

in form, is founded on the equitable principle that no one ought to unjustly enrich

himself at the expense of another, and is a substitute for a suit in equity. Such a

claim exists only where there is no actual legal contract governing the issue.” Id.

(internal quotations and citations omitted).

      Here, the Loan Sale Agreement governs Plaintiff’s right to collect on the

Menchion account based on Prime Asset’s breach of its warranty that it held an

unencumbered interest in the account. In particular, Section 6.3 of the Loan Sale

Agreement defines the remedy available to Plaintiff for Prime Asset’s failure to


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convey an unencumbered interest in the Menchion account as represented and

warranted by Prime Asset in Section 6. As it did before the district court, Plaintiff

argues on appeal that the remedy-limitation provision is unenforceable under

Florida law, which controls pursuant to Section 10.10 of the Loan Sale Agreement.

         Under Florida law, “[p]arties may contractually limit damages for breach.”

Inlet Beach Capital Investments, LLC v. F.D.I.C., 778 F.3d 904, 906–07 (11th Cir.

2014), quoting Ament v. One Las Olas, Ltd., 898 So. 2d 147, 151 (Fla. Dist. Ct.

App. 2005). “A remedies limiting provision is enforceable, unless it contains ‘an

unreasonable disparity in remedy alternatives available to’ the parties.” Id.,

quoting Terraces of Boca Assocs. v. Gladstein, 543 So. 2d 1303, 1304 (Fla. Dist.

Ct. App. 1989).

         The district court found the limitation of remedies provision reasonable

because “[i]t has a time limit and is restricted to breaches of representations or

warranties during that time period.” The court further found that it was

“reasonable given the number of loans that are packaged and the potential for

including one inadvertently, like what happened here.” We agree with the district

court.

         The remedy-limitation provision constitutes a reasonable allocation of a risk

known to the parties when entering the Loan Sale Agreement. Florida courts

“assum[e] that the parties to a contract have allocated the economic risks of


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nonperformance through the bargaining process.” Tiara Condo. Ass’n, Inc. v.

Marsh & McLennan Companies, Inc., 110 So. 3d 399, 412 (Fla. 2013) (Canady, J.,

dissenting).

      Here, the Loan Sale Agreement conveyed a large portfolio of loans and

debtor accounts to Plaintiff. The $200,000 unpaid balance on the Menchion

account represents only 0.94% of the total value of the loans conveyed in the Loan

Sale Agreement. Moreover, Plaintiff negotiated a purchase price constituting a

small fraction of the unpaid balance of the loans, only 0.38 percent. As part of the

bargain, Plaintiff agreed to the remedy-limitation provision that anticipates

potential problems with ownership and the encumbrance of some of the conveyed

accounts, a phenomenon that the parties obviously foresaw in a transaction in

which numerous accounts are sold in bulk. The remedy-limitation provision is

reasonable under those circumstances. Plaintiff cannot accept the extremely

favorable loan purchase price here of less than a half a penny on the dollar and

then disclaim the conditions underlying that price, like the repurchase remedy, as

unreasonable. See S. Fin. Grp., LLC v. McFarland State Bank, 763 F.3d 735, 740

(7th Cir. 2014) (upholding remedy-limitation provision for non-monetary breach of

loan sale agreement under Wisconsin law and finding “no reason to reject the

parties’ allocation of risk” where sophisticated buyer of loans paid 29 cents on the




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dollar for the portfolio and “could have negotiated a different contract had it

wanted to shift more risk to [seller]”).

      That the Loan Sale Agreement limits the repurchase remedy to breaches of

representations and warranties under Sections 6.1 and 6.2 supports the

reasonableness of the remedy-limitation provision. The parties narrowly crafted

the remedy-limitation provision to allocate a known risk that Prime Asset’s

representations and warranties with respect to some loans might not be satisfied,

while preserving the parties’ contractual remedies for breaches of other provisions.

This narrowly tailored remedy-limitation provision is reasonable. See Inlet Beach,

778 F.3d at 907–08 (upholding remedy provision limited to purchaser’s obligations

to consummate the purchase of residential property that did not implicate a breach

by the purchaser of “any other of its obligations” under the contract) (emphasis in

original).

      We are unpersuaded by Plaintiff’s reliance on Ocean Dunes of Hutchinson

Island Development Corporation v. Colangelo and Hackett v. J.R.L. Development,

Inc., for the proposition that the remedy limiting provision is unreasonable because

“[a] return of one’s own money hardly constitutes damages in any meaningful

sense.” Ocean Dunes of Hutchinson Island Dev. Corp. v. Colangelo, 463 So. 2d

437, 439 (Fla. Dist. Ct. App. 1985); Hackett v. J.R.L. Dev., Inc., 566 So. 2d 601,

603 (Fla. Dist. Ct. App. 1990). Each of those cases involved contracts for the sale


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of condominiums where the court held that an exclusive remedy provision that

provided for only the return of a buyer’s deposit in the event of a seller’s default

lacked mutuality and was unreasonable where the seller could retain substantial

liquidated damages if the buyer defaulted. The condominium contracts in Ocean

Dunes and Hackett permitted a sophisticated seller to cancel the entire sale without

financial ramification, limiting the unsophisticated buyer’s recovery to return of

their deposit. In contrast, the repurchase remedy in the Loan Sale Agreement here

allocates a known risk between sophisticated parties that the representations and

warranties in Section 6 may be inaccurate for some loans within a large portfolio, it

is narrowly tailored to address that risk, and it does not limit damages for breach of

other provisions of the Loan Sale Agreement.

      We are similarly unpersuaded by Plaintiff’s reliance on Metropolitan Dade

County v. Worsham Brothers Co., Inc., 563 So. 2d 1107 (Fla. Dist. Ct. App. 1990).

In Section 6.9 of the construction contract in Worsham Brothers, “the parties

expressly agreed that upon termination of the agreement ‘neither party shall have

further liability to the other party.’” Id. at 1108. The court found this “limitations

provision [] enforceable against Worsham unless the County was at fault for

[Worsham’s] nonperformance.” Id. The court concluded that “[i]f on remand the

County is found to have acted in good faith, section 6.9 of the Agreement shall

apply equally to all parties.” Id. Worsham Brothers does not, as Plaintiff


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contends, stand for the proposition that the remedy limitation agreed to here by

sophisticated parties is unenforceable. To the contrary, Worsham Brothers held the

remedy limitation enforceable unless the County was faulted for the

nonperformance because the County had an implied obligation not to hinder or

obstruct defendant’s performance of its contractual obligations. No such

obstruction allegations exist here.

       Accordingly, we find the remedy-limitation provision of Section 6.3

enforceable, meaning that the remedy for Prime Asset having assigned the

Menchion loan to Best Service prior to conveying that account to Plaintiff is for

Prime Asset to repurchase the account.2

       B.      Plaintiff’s Claims against Prime Asset and Prime Asset’s Motion
               to Dismiss It as a Party to this Appeal Based on Lack of
               Jurisdiction

       Plaintiff requested that the district court enter a final judgment so that it

could appeal the district court’s grant of summary judgment to two defendants—

the Menchions and Best Service. Yet, now Plaintiff also seeks to litigate on appeal



2
  Moreover, in making a “money had and received” claim, Plaintiff is proceeding under the
equitable principle that a person should not be allowed to unjustly enrich himself at the expense
of another. Here, Plaintiff was aware that Best Service had sued the Menchions on the
underlying note. Nevertheless, it made no effort to intervene in that litigation or formally stake
any claim; to the contrary, it dismissed its own legal action against the Menchions. Plaintiff then
watched as Best Service expended time and resources to litigate and collect on the Menchion
account, pursuing a claim only after Best Service’s efforts had yielded dividends. Under these
circumstances, Plaintiff’s equitable argument—that considerations of equity and good
conscience should allow it to wrest from Best Service the portion of the recovered proceeds
allocated to Best Service by the Collection Agreement—is not a compelling argument.
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the district court’s denial of its motion for summary judgment against defendant

Prime Asset: a ruling from which the district court did not issue a final judgment

warranting an appeal. Prime Asset has filed a motion for us to dismiss Plaintiff’s

appeal of the denial of its motion for summary judgment against Prime Asset,

arguing that we lack jurisdiction to hear the appeal. We grant the motion.

      There are multiple reasons why the present appeal is not the appropriate

vehicle for this review. But first we set out the broad outline of Plaintiff’s

appellate argument that the district court incorrectly denied its motion for summary

judgment on its claim against Prime Asset.

      Plaintiff repeats its argument that Section 6 of the Loan Sale Agreement

between it and Prime Asset should not be enforced because that section is

unreasonable. As set out above, and like the district court, we have rejected that

argument. On appeal, however, Plaintiff introduces a new reason why summary

judgment should have been granted against Prime Asset. Plaintiff argues that even

accepting that Section 6 precludes any remedy other than repurchase of the

Menchion account based on the breach of warranty arising from Prime Asset’s

prior assignment of that loan to Best Service, other sections of the Loan Sale

Agreement provide Plaintiff some relief. Specifically, Section 2.1(a) obligated

Prime Asset to “transfer and assign . . . interest of any type or kind in the

Unsecured Loans.” (emphasis added) Article I defines “Unsecured Loans” as the


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individual loans, “including all Claims and all Proceeds arising therefrom.”

(emphasis added) Section 3.4(e), which addresses Prime Asset’s “Post-Closing

Obligations,” states that “[a]ny and all payments received by Seller on and after the

Closing Date, shall belong to Buyer and any such amounts received by Seller shall

be promptly remitted to Buyer within ten (10) Business Days.” (emphasis added)

      Putting all this together, we read Plaintiff to be arguing that even though

Prime Asset’s false representation to Plaintiff that the Menchion loan was not

encumbered only gives rise to Prime Asset’s duty to repay Plaintiff the purchase

price of that loan account under Section 6, this limitation does not erase Prime

Asset’s duties under Sections 2.1(a) and 3.4(e). Further fleshing out what we

perceive to be Plaintiff’s argument, Section 2.1(a) required Prime Asset to transfer

any interest it had in the loan at the time of closing. Given its prior assignment of

the loan to Best Service and the corresponding Collection Agreement, Prime Asset

no longer had a 100% interest in that loan, but it still retained a 60% interest, based

on the Collection Agreement’s allocation of the proceeds of a collection by Best

Service. Stated another way, Prime Asset’s breach of warranty only extended to

the 40% of the loan proceeds that it had assigned to Best Service; Prime Asset still

maintained a 60% interest in the loan that was not encumbered. Adding Section

3.4(e) to the mix, the Loan Sale Agreement imposed post-closing obligations on

Prime Asset, providing that ” [a]ny and all payments received by” Prime Asset


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after the Closing Date, belonged to Plaintiff and that Prime Asset was required to

“promptly remit[]” these payment to Plaintiff. Following its closing with Plaintiff,

Prime Asset received $90,000 from Best Service’s successful collection efforts,

which represented 60% of the money that Best Service had collected. As we read

Plaintiff’s argument, the above provisions of the contract require that Prime Asset

remit that $90,000 to Plaintiff.

      Certainly, this is not a frivolous argument by Plaintiff. We cannot, however,

consider it on this appeal for two reasons: (1) we lack jurisdiction to consider

Plaintiff’s appeal of the district court’s denial of its motion for summary judgment

against Prime Asset on Plaintiff’s claims for breach of contract and money had and

received and (2) Plaintiff never raised this argument before the district court. As to

the absence of jurisdiction, Prime Asset did not move for summary judgment on

those claims and the district court did not include them in its Rule 54(b) Final

Judgment from which Plaintiff appeals. Nor did Plaintiff request that the court

include the denial of summary judgment against Prime Asset in that final

judgment. “By definition, entry of partial judgment under Rule 54(b) results in

some claims in a case being immediately appealable while other claims remain

pending in the district court.” Lloyd Noland Found., Inc. v. Tenet Health Care

Corp., 483 F.3d 773, 779 (11th Cir. 2007). Moreover, “[i]t is well established that

the denial of a motion for summary judgment is not a final decision under


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28 U.S.C.A. § 1291.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th

Cir. 1983). “An order denying summary judgment amounts to a decision that the

claim remains pending for trial and is therefore interlocutory.” Id. Thus, we do

not have jurisdiction to hear Plaintiff’s claims against Prime Asset.

      We decline Plaintiff’s request that we exercise pendent jurisdiction over the

district court’s denial of summary judgment on Plaintiff’s claims against Prime

Asset. “Pendent appellate jurisdiction is present when a nonappealable decision is

‘inextricably intertwined’ with the appealable decision or when ‘review of the

former decision [is] necessary to ensure meaningful review of the latter.’” King v.

Cessna Aircraft Co., 562 F.3d 1374, 1379 (11th Cir. 2009), quoting Swint v.

Chambers Cty. Comm’n, 514 U.S. 35, 51 (1995). “[T]he Supreme Court has

signaled that pendent appellate jurisdiction should be present only under rare

circumstances.” Id.

      No basis exists for exercising pendent jurisdiction over the district court’s

denial of Plaintiff’s motion for summary judgment against Prime Asset. First,

Plaintiff’s claim on appeal that Prime Asset breached provisions of the Loan Sale

Agreement other than Section 6 (i.e., Sections 2.1 and 3.4) is not inextricably

intertwined with our decision interpreting Section 6 and determining that it is

enforceable. The remedy-limitation provision in the latter does not apply to




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alleged breaches of Sections 2 and 3; it only applies to breaches of the

representations and warranties contained in Section 6.

      Plaintiff could have easily waited until the pending claims against Prime

Asset had been finally resolved and appealed the district court’s entire judgment in

one appeal. That it chose to jump the gun with a piecemeal appeal of only some

rulings does not authorize us to consider an appeal of a ruling over which we have

no appellate jurisdiction.

      Even if we had jurisdiction to consider Plaintiff’s attempted appeal of the

district court’s denial of Plaintiff’s motion for summary judgment against Prime

Asset, Plaintiff could not prevail because the arguments it now makes were never

raised before the district court. Plaintiff did not argue before the district court that

it was entitled to summary judgment based on Prime Asset’s breach of any

provision other than Section 6. Nor was the argument we have fleshed out above

even hinted at in Plaintiff’s litigation before the district court. “This Court has

repeatedly held that an issue not raised in the district court and raised for the first

time in an appeal will not be considered by this court.” Access Now, Inc. v. Sw.

Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (quotation marks omitted).

      Yet fortunately for Plaintiff, the absence of jurisdiction to review the district

court’s denial of Plaintiff’s motion for summary judgment as to Prime Asset means

that we do not reject Plaintiff’s appeal based on Plaintiff’s failure to raise this new


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issue before the district court. Plaintiff will live to fight another day against Prime

Asset in the district court, at least as to any arguments not foreclosed by our ruling

on Section 6. 3 Accordingly, we grant Prime Asset’s motion to dismiss Plaintiff’s

appeal as to Prime Asset and we remand Plaintiff’s claims against Prime Asset for

the district court to resolve them.4

III.   CONCLUSION
       For the reasons explained above, we AFFIRM the district court’s grant of

summary judgment for Defendant The Best Service Co., Inc., and Defendants

Kenneth and Padrica Menchion. We also GRANT Defendant Prime Asset Fund

V, LLC’s motion to dismiss it as a party to this appeal for lack of jurisdiction.




3
  The law of the case doctrine will bind the parties and the district court to our ruling finding
enforceable the limitation-of-remedy provision of Section 6.3. Alphamed, Inc. v. B. Braun Med.,
Inc., 367 F.3d 1280, 1285-86 (11th Cir. 2004).
4
  Our review of the district court docket indicates that on August 15, 2018, while this case was
on appeal, the district court entered an order stating that “[a]ll claims except those addressed in
the Court’s Judgment of January 4, 2016 having been abandoned, the Clerk is directed to close
this case administratively.” We do not know the basis for this order, but note that the district
court has not entered final judgment on Plaintiff’s claims against Prime Asset, which claims
were not addressed in the district court’s order of January 4, 2016. We take no position on the
viability of Plaintiff’s remaining claims against Prime Asset following the district court’s
administrative closure order. Should the court determine that those claims have been abandoned
or are otherwise without merit, it may enter a final judgment to that effect, from which judgment
Plaintiff may seek to appeal. As it now stands though, Plaintiff’s claims against Prime Asset
remain pending in the district court.
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