Preview
Filing # 105708681 E-Filed 04/01/2020 09:11:44 AM
IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT
IN AND FOR MARION COUNTY, FLORIDA.
WILFREDO GONZALEZ,
Plaintiff,
vs. Case No.: 2019-CA-2727
NEW REZ c/o PHH
MORTGAGE SERVICES,
Defendant.
/
RESPONSE TO DEFENDANT, NEW REZ C/O PHH
MORTGAGE SERVICES’ MOTION TO DISMISS COMPLAINT
COMES NOW, Plaintiff, WILFREDO GONZALEZ, by and through the undersigned
counsel, and files this Response to Defendant, NEW REZ c/o PHH MORTGAGE SERVICES’
Motion to Dismiss Complaint, and states the following:
1. This action was originally filed on December 17, 2019.
2. Defendant filed a Motion to Dismiss Complaint in this case on February 14, 2020.
3. ‘In considering a motion to dismiss, the Court must accept the allegation in a Complaint
as true and construe them in a light most favorable to the plaintiffs.” O’Brien v. Seterus,
Inc., 2015 U.S. Dist. LEXIS 96809, at *2 (S.D. Fla. July 24, 2015).
4. “All that is required is that there are “enough facts to state a claim to relief that is
plausible on its face.” Jd. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007).
5. Fla. R. Civ. P. 1.110(b) requires a “short and plain statement of the ultimate facts
showing that the pleader is entitled to relief.”
6. The Court is “...confined to the four corners of the Complaint in making a determination,
as the purpose of a motion to dismiss is to test the legal sufficiency of the Complaint and
Electronically Filed Marion Case # 19CA002727AX 04/01/2020 09:11:44 AM10.
11.
12.
13,
14.
15.
not to determine issues of fact.” Curtis v. Henderson, 777 So. 2d 1017, 1018 (Fla. 2nd
DCA 2006).
Therefore, the Court is required to make a determination on a Motion to Dismiss based
on the actual Complaint, taking into account that Plaintiff's allegations are construed as
true.
Plaintiff alleges in his Complaint a cause of action pursuant to a Fla. Stat. §701.04(1)
request for a payoff amount of a mortgage held by Defendant.
Defendant failed to provide a payoff amount pursuant to Fla. Stat. §701.04(1) after
numerous requests sent by certified mailings sent by Plaintiff.
Fla. Stat. §701.04(2) provides for a civil action arising out of this request and provides a
statutory right for attorney fees and costs in bringing this cause of action.
Plaintiff properly pled the statutory cause of action requirements by alleging that
Defendant failed to provide a payoff amount of Plaintiff's mortgage within 14 days.
Plaintiff even sent multiple requests and made multiple phone calls in attempt to get a
simple payoff amount.
Plaintiff was forced to bring this cause of action because of Defendant’s ineptitude in
allowing Plaintiff to obtain a payoff amount of his mortgage.
Plaintiff has been damaged by Defendant’s failure to provide a payoff by having to pay
interest accrued during the numerous months while requesting the payoff and by having
to hire the undersigned counsel in order to obtain a payoff amount.
In Defendant, NEW REZ c/o PHH MORTGAGE SERVICES’ Motion to Dismiss
Complaint, Defendant states that the cause of action under Fla. Stat. §701.04 is can only
be brought by a person who fully paid the outstanding mortgage.16. This is exactly what Plaintiff desired to do, fully pay the outstanding mortgage, which is
factually impossible to do since Defendant refuses to provide the payoff amount for the
subject mortgage.
17. “There is little doubt that Florida recognizes a separate and discrete cause of action by a
borrower against a lender. Specifically, section 701.04(1)(a) of the Florida Statutes
requires a holder of a mortgage to deliver to the mortgagor, upon request of the
mortgagor, a written estoppels letter setting forth the unpaid balance of the loans secured
by the mortgage...” Laptopplaza, Inc. v. Wells Fargo Bank, NA, 276 So. 3d 375, 379 (Fla.
3rd DCA 2019).
18. Additionally, “the Legislature expressly contemplated a cause of action based on the
parties’ respective obligations under the statute [Fla. Stat. §701.04].” Jd.
19. Furthermore, in Eckert Realty Corp. v. Eckert, 941 So. 2d 426, 427 (Fla. 4th DCA 2006),
the 4th DCA discusses a trial court awarding damages for failure to provide an estoppel
letter pursuant to Fla. Stat. §701.04.
20. Eckert is a case regarding res judicata, but the principle in the Court’s analysis shows that
damages and a cause of action can be established under Fla. Stat. §701.04 for failure to
provide an estoppel letter.
21. Therefore, looking within the four corners of the Complaint and taking Plaintiff's
allegations as true and in the light most favorable to Plaintiff, Plaintiff has properly pled a
cause of action pursuant to Fla. Stat. §701.04 that survives Defendant, NEW REZ c/o
PHH MORTGAGE SERVICES’ Motion to Dismiss Complaint.
WHEREFORE, Plaintiff is requesting this Honorable Court to deny the Defendant, NEW
REZ c/o PHH MORTGAGE SERVICES’ Motion to Dismiss Complaint or in the alternative togive Plaintiff leave to file an Amended Complaint, and any other relief this Court finds just and
proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed with
the Court’s E-Portal on this 1st day of April, 2020 which will send a copy via email to:
Michael R. Esposito, Esquire
Nicole R. Topper, Esquire
brfleservice@blankrome.com
mesposito@blankrome.com
ntopper@blankrome.com
4/ Stanley W. Plappert
Stanley W. Plappert, Esquire
The Florida Legal Advocacy Group, P.A.
Attorney for Plaintiff
1024 E. Silver Springs Blvd.
Ocala, FL 34470
Florida Bar No. 76603
352-732-8030 telephone
888-399-3129 facsimile
swp@thefloridalegaladvocacygroup.com
Preview
Filing # 105708681 E-Filed 04/01/2020 09:11:44 AM IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR MARION COUNTY, FLORIDA. WILFREDO GONZALEZ, Plaintiff, vs. Case No.: 2019-CA-2727 NEW REZ c/o PHH MORTGAGE SERVICES, Defendant. / RESPONSE TO DEFENDANT, NEW REZ C/O PHH MORTGAGE SERVICES’ MOTION TO DISMISS COMPLAINT COMES NOW, Plaintiff, WILFREDO GONZALEZ, by and through the undersigned counsel, and files this Response to Defendant, NEW REZ c/o PHH MORTGAGE SERVICES’ Motion to Dismiss Complaint, and states the following: 1. This action was originally filed on December 17, 2019. 2. Defendant filed a Motion to Dismiss Complaint in this case on February 14, 2020. 3. ‘In considering a motion to dismiss, the Court must accept the allegation in a Complaint as true and construe them in a light most favorable to the plaintiffs.” O’Brien v. Seterus, Inc., 2015 U.S. Dist. LEXIS 96809, at *2 (S.D. Fla. July 24, 2015). 4. “All that is required is that there are “enough facts to state a claim to relief that is plausible on its face.” Jd. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). 5. Fla. R. Civ. P. 1.110(b) requires a “short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” 6. The Court is “...confined to the four corners of the Complaint in making a determination, as the purpose of a motion to dismiss is to test the legal sufficiency of the Complaint and Electronically Filed Marion Case # 19CA002727AX 04/01/2020 09:11:44 AM10. 11. 12. 13, 14. 15. not to determine issues of fact.” Curtis v. Henderson, 777 So. 2d 1017, 1018 (Fla. 2nd DCA 2006). Therefore, the Court is required to make a determination on a Motion to Dismiss based on the actual Complaint, taking into account that Plaintiff's allegations are construed as true. Plaintiff alleges in his Complaint a cause of action pursuant to a Fla. Stat. §701.04(1) request for a payoff amount of a mortgage held by Defendant. Defendant failed to provide a payoff amount pursuant to Fla. Stat. §701.04(1) after numerous requests sent by certified mailings sent by Plaintiff. Fla. Stat. §701.04(2) provides for a civil action arising out of this request and provides a statutory right for attorney fees and costs in bringing this cause of action. Plaintiff properly pled the statutory cause of action requirements by alleging that Defendant failed to provide a payoff amount of Plaintiff's mortgage within 14 days. Plaintiff even sent multiple requests and made multiple phone calls in attempt to get a simple payoff amount. Plaintiff was forced to bring this cause of action because of Defendant’s ineptitude in allowing Plaintiff to obtain a payoff amount of his mortgage. Plaintiff has been damaged by Defendant’s failure to provide a payoff by having to pay interest accrued during the numerous months while requesting the payoff and by having to hire the undersigned counsel in order to obtain a payoff amount. In Defendant, NEW REZ c/o PHH MORTGAGE SERVICES’ Motion to Dismiss Complaint, Defendant states that the cause of action under Fla. Stat. §701.04 is can only be brought by a person who fully paid the outstanding mortgage.16. This is exactly what Plaintiff desired to do, fully pay the outstanding mortgage, which is factually impossible to do since Defendant refuses to provide the payoff amount for the subject mortgage. 17. “There is little doubt that Florida recognizes a separate and discrete cause of action by a borrower against a lender. Specifically, section 701.04(1)(a) of the Florida Statutes requires a holder of a mortgage to deliver to the mortgagor, upon request of the mortgagor, a written estoppels letter setting forth the unpaid balance of the loans secured by the mortgage...” Laptopplaza, Inc. v. Wells Fargo Bank, NA, 276 So. 3d 375, 379 (Fla. 3rd DCA 2019). 18. Additionally, “the Legislature expressly contemplated a cause of action based on the parties’ respective obligations under the statute [Fla. Stat. §701.04].” Jd. 19. Furthermore, in Eckert Realty Corp. v. Eckert, 941 So. 2d 426, 427 (Fla. 4th DCA 2006), the 4th DCA discusses a trial court awarding damages for failure to provide an estoppel letter pursuant to Fla. Stat. §701.04. 20. Eckert is a case regarding res judicata, but the principle in the Court’s analysis shows that damages and a cause of action can be established under Fla. Stat. §701.04 for failure to provide an estoppel letter. 21. Therefore, looking within the four corners of the Complaint and taking Plaintiff's allegations as true and in the light most favorable to Plaintiff, Plaintiff has properly pled a cause of action pursuant to Fla. Stat. §701.04 that survives Defendant, NEW REZ c/o PHH MORTGAGE SERVICES’ Motion to Dismiss Complaint. WHEREFORE, Plaintiff is requesting this Honorable Court to deny the Defendant, NEW REZ c/o PHH MORTGAGE SERVICES’ Motion to Dismiss Complaint or in the alternative togive Plaintiff leave to file an Amended Complaint, and any other relief this Court finds just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed with the Court’s E-Portal on this 1st day of April, 2020 which will send a copy via email to: Michael R. Esposito, Esquire Nicole R. Topper, Esquire brfleservice@blankrome.com mesposito@blankrome.com ntopper@blankrome.com 4/ Stanley W. Plappert Stanley W. Plappert, Esquire The Florida Legal Advocacy Group, P.A. Attorney for Plaintiff 1024 E. Silver Springs Blvd. Ocala, FL 34470 Florida Bar No. 76603 352-732-8030 telephone 888-399-3129 facsimile swp@thefloridalegaladvocacygroup.com