United States District Court, M.D. Florida, Orlando Division
GILBERTO C. FARIAS MATOS, Plaintiff,
BUSINESS LAW GROUP, P.A. and LM FUNDING, LLC, Defendants.
GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants'
Daubert motion to exclude the testimony of
Plaintiff's expert witness Arnold Kanov (Doc. 107 and
110). Plaintiff opposed the Motion (Doc. 112).
case, Plaintiff, Gilberto C. Farias Matos
(“Matos”) has sued Business Law Group, PA
(“BLG”) and LM Funding, LLC (“LMF”)
for violation of the Fair Debt Collection Practices Act
(“FDCPA”) and the Florida Consumer Collections
Practices Act (“FCCPA”). In 2016, Plaintiff
purchased a home in and became a member of the Lexington
Place Condominium Association (“Lexington”). The
claims in this case arise out of Lexington's effort to
collect past-due fees, costs, and assessments from
a debt collector. LMF entered into an agreement with
Lexington to pursue debt collection efforts against Matos.
LMF hired BLG to assert legal claims against Matos as part of
the debt collection process. See Order Denying
Motions for Summary Judgment, Doc. 131 at 1 n.1.
order to support his claim that Defendants violated the Acts,
Plaintiff retained Arnold Kanov. Mr. Kanov is a retired CPA
who is now president of Association Analytics Group which
develops software and consults with the community association
industry to calculate the maximum amount of interest
chargeable to delinquent owners. Doc. 107-1 at 176-78. He has
a Bachelor of Science degree in statistics from the
University of Florida and a certificate in accounting from
the University of Miami. Id.
Kanov's report, dated January 29, 2019, presents the
results of his review of the account ledgers and other
documents relating to the amounts, including the interest
component, being charged by Lexington. Doc. 107-1 at 187-92.
This review included an analysis of the interest being
sought, the charges posted to the ledger, and an analysis of
the total amount sought. Id. at 188. Kanov concludes
that the amount of interest being demanded by Defendants
exceeds the 18% statutory limit authorized in Lexington's
Declaration. He attributes this conclusion to three primary
factors: (1) the failure to properly post payments to
Matos's ledger; (2) the utilization of a flawed formula
to calculate interest; and (3) calculating interest on
amounts not yet due. Id. Finally, Kanov notes that
when Matos purchased this unit, Lexington assessed charges
that had already been paid, thus triggering late fees,
interest, and other costs that should not have been charged.
their Motion, Defendants contend that Kanov's testimony
should be excluded because it does not meet the standard for
admission under Federal Rule of Evidence 702 and Daubert
v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
[e]xpert testimony may be admitted into evidence if: (1) the
expert is qualified to testify competently regarding the
matters he intends to address; (2) the methodology by which
the expert reaches his conclusions is sufficiently reliable
as determined by the sort of inquiry mandated in
Daubert; and (3) the testimony assists the trier of
fact, through the application of scientific, technical, or
specialized expertise, to understand the evidence or to
determine a fact in issue.
City of Tuscaloosa v. Harcros Chemicals, Inc., 158
F.3d 548, 562-63 (11th Cir. 1998). Under this standard, the
Court acts as the evidentiary gatekeeper. See
Daubert, 509 U.S. at 592-93; see generally
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137
(1999). In performing the gatekeeping function, District
Courts “ensure that speculative, unreliable expert
testimony does not reach the jury under the mantle of
reliability that accompanies the appellation expert
testimony.” Superior Consulting Servs. v. Shaklee
Corp., No. 6:16-cv-2001-Orl-31GJK, 2018 WL 2323433 at *4
(M.D. Fla. May 22, 2018) (quoting Rink v. Cheminova,
Inc., 400 F.3d 1286, 1291 (11th Cir. 2005)) (internal
quotation marks omitted).
contend that Mr. Kanov is not qualified to testify as an
expert in this case, because the calculation of interest is a
simple formula that does not require expert testimony. Doc.
107 at 3 n.1. But Mr. Kanov does more than just calculate
interest on a specific amount, at a specified rate, and over
a particular time period. Rather, he will analyze the account
ledgers to determine whether the charges assessed against
Plaintiff were properly calculated, including the interest
rate charged and the timing of such charges. That testimony
would be of assistance to the jury, and Mr. Kanov appears to
be well-qualified to use reliable principles of ...