USCA11 Case: 21-11340 Document: 57-1 Date Filed: 06/16/2023 Page: 1 of 6
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11340
____________________
LUJERIO CORDERO,
Plaintiff-Appellant,
versus
TRANSAMERICA ANNUITY SERVICE CORPORATION,
a.k.a. Wilton Re Annuity Service Corporation,
Defendant-Third-Party Plaintiff-Appellee,
TRANSAMERICA LIFE INSURANCE COMPANY,
Defendant-Cross Claimant-Appellee,
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2 Opinion of the Court 21-11340
ALLIANCE ASSET FUNDING, LLC, et al.,
Third-Party Defendants-Cross Defendants.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:18-cv-21665-DPG
____________________
Before WILSON, ROSENBAUM, Circuit Judges, and CONWAY,∗ District
Judge.
PER CURIAM:
Over the course of twenty-two months, plaintiff-appellant
Lujerio Cordero—a childhood victim of lead poisoning—assigned
his rights to nearly one million dollars in structured settlement pay-
ments to factoring companies for pennies on the dollar. Through
six transfer agreements that he lacked the capacity to understand,
Cordero relinquished his rights to monthly payments with a total
aggregate value of $959,834.42 spread over the course of about
twenty-six years for a series of immediate lump-sum cash payments
that amounted to $268,130.
∗ Honorable Anne C. Conway, United States District Judge for the Middle Dis-
trict of Florida, sitting by designation.
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21-11340 Opinion of the Court 3
The six transactions at issue were facilitated under Florida’s
Structured Settlement Protection Act (Florida’s “SSPA”), which
states that a structured settlement payment rights transfer is only
effective if “the transfer is authorized in advance in a final order by
a court of competent jurisdiction[.]”
Fla. Stat. § 626.99296(3)(a). At
hearings where the factoring companies were the only represented
parties, Florida state courts approved Cordero’s assignments. For
each transfer, the Florida state court concluded—among other
things—that the transfer was in Cordero’s best interest. See
id.
After Cordero exhausted his cash payments, he endeavored
to recover the money that he assigned to the factoring companies.
But, instead of suing the factoring companies or attempting to void
the transactions, Cordero sued Transamerica Annuity Service Cor-
poration and Transamerica Life Insurance Company (collectively,
“Transamerica”), the entities that issued and funded his periodic
payments before he assigned them. Cordero asserted two claims
against Transamerica: one for breach of contract under New York
law, and the other for exploitation of a vulnerable adult under Flor-
ida’s Adult Protective Services Act (“FAPSA”), Florida Statute
§ 415.1111.
This appeal followed the district court’s with-prejudice dis-
missal of Cordero’s claims. It returns to us after the New York
Court of Appeals answered a reformulated version of a question
that we certified for its review. See Cordero v. Transamerica Annuity
Serv. Corp.,
34 F.4th 994 (11th Cir. 2022), certified question answered,
No. 21, --- N.E.3d --- (N.Y. Apr. 25, 2023).
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4 Opinion of the Court 21-11340
Our certified question pertained to Cordero’s breach of con-
tract claim. With the benefit of oral argument, we concluded that
one of Cordero’s theories of liability might be viable: a claim prem-
ised on a breach of the implied covenant of good faith and fair deal-
ing. However, we were unsure whether such a claim was actionable
under New York law based on the facts of this case. Therefore, we
certified the following question to the New York Court of Appeals:
Does a plaintiff sufficiently allege a breach of the im-
plied covenant of good faith and fair dealing under
New York law if he pleads that the defendant drasti-
cally undermined a fundamental objective of the par-
ties’ contract, even when the underlying duty at issue
was not explicitly referred to in the writing?
Cordero, 34 F.4th at 1002. In its response, the New York Court of
Appeals reformulated our question to read:
Does a plaintiff sufficiently allege a breach of the cov-
enant of good faith and fair dealing under New York
law by pleading that (1) an issuer or obligor failed to
object to plaintiff’s sale of periodic payments in an
SSPA proceeding, where the underlying agreements
contain anti-assignment provisions, and (2) the sale
approved by the SSPA court was not in the plaintiff’s
best interest?
Cordero v. Transamerica Annuity Serv. Corp., No. 21, --- N.E.3d ---, slip
op. at 9 (N.Y. Apr. 25, 2023). The New York Court of Appeals an-
swered its reformulated question in the negative, concluding that
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21-11340 Opinion of the Court 5
“such allegations do not state a cognizable cause of action for
breach of the implied covenant.” Id., slip op. at 2, 9.
We offer the New York Court of Appeals our sincerest
thanks for its assistance. Given its guidance, we affirm the district
court’s with-prejudice dismissal of Cordero’s breach of contract
claim.1
One issue remains: whether Cordero has stated a claim
against Transamerica pursuant to FAPSA for exploitation of a vul-
nerable adult. We deferred our decision on this claim in our prior
opinion. See Cordero, 34 F.4th at 996 n.2.
Under FAPSA, a “vulnerable adult who has been abused, ne-
glected, or exploited” may bring a civil lawsuit “against any perpe-
trator.”
Fla. Stat. § 415.1111. In defining “exploitation,” the statute
states that the exploiter must act “with the intent to temporarily or
permanently deprive the vulnerable adult of the use, benefit, or
possession of [his] funds, assets, or property for the benefit of
someone other than the vulnerable adult.”
Id. § 415.102(8)(a). Ex-
amples of exploitation listed in the statute include “[b]reaches of
fiduciary relationships,” “[u]nauthorized taking of personal assets,”
“[m]isappropriation, misuse, or transfer of moneys belonging to a
vulnerable adult from a personal or joint account,” or “[i]nten-
tional or negligent failure to effectively use a vulnerable adult’s
1
We recognize that Cordero made additional arguments regarding his breach
of contract claim in his briefs; however, we find that those arguments are mer-
itless. See Cordero, slip op. at 13–14.
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6 Opinion of the Court 21-11340
income and assets for the necessities required for that person’s sup-
port or maintenance.” Id. § 415.102(8)(b).
Cordero’s FAPSA claim fails under the plain language of the
statute. In his operative complaint, Cordero does not allege that
Transamerica intended to deprive him of the use of his funds. See
id. § 415.102(8)(a). Instead, Cordero asserts that Transamerica “al-
lowed” (or “facilitated”) his exploitation by the factoring compa-
nies, which resulted in an unauthorized taking of his assets. Based
on the facts that Cordero pleaded, Transamerica’s actions simply
do not amount to “exploitation” as that term is defined in FAPSA.
Because Cordero has failed to state a violation of FAPSA, we affirm
the district court’s with-prejudice dismissal of his FAPSA claim.2
For the reasons set forth above and in the New York Court
of Appeals’ response to our certified question, we affirm the district
court’s dismissal of Cordero’s claims.3
AFFIRMED.
2
“We may affirm for any reason supported by the record, even if not relied
upon by the district court.” Hill v. Emp. Benefits Admin. Comm. of Mueller Grp.
LLC,
971 F.3d 1321, 1325 (11th Cir. 2020) (internal quotation marks omitted).
3
The facts as Cordero has alleged them are truly troubling. They describe a
situation where it appears an industry is able to systematically victimize indi-
viduals who are not in a position to protect themselves. See Cordero, slip op.
at 30 (Rivera, J., dissenting). But given the governing law, we cannot grant
Cordero the relief that he seeks based on the claims that he asserted against
Transamerica.
