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IN THE CIRCUIT COURT OF THE NINTH JUDICIAL
CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA
CITIMORTGAGE, INC. CASE NO.: 2010-CA-025847-0
Plaintiff,
SEC.: 33
Vv.
DAVID HUBAND, et al..
Defendant(s).
/
PLAINTIFF’S REPLY TO DEFENDANTS’ AFFIRMATIVE DEFENSES
Plaintiff, CITIMORTGAGE, INC., by and through the undersigned counsel hereby
serves its Reply to the Affirmative Defenses of Defendant, DAVID HUBAND, and states:
1 It is well settled that allegations on an Answer that purport to be Affirmative Defenses,
but which are nothing more than denials or conclusions of law must be stricken. Wiggins v.
Protmay, 430 So.2d 541 (Pla. 1 DCA 1983). Certainty is required when pleading Affirmative
Defenses. Pleading conclusions of law unsupported by allegations of ultimate fact is legally
insufficient. Cady v. Chevy Chase Savings and Loan, Inc., 528 So. 2d 136 (Fla. 4th DCA 1988);
Thompson v. Bank of New York, 862 So. 2d 768 (Fla. 4th DCA 2003). A plaintiff is entitled to
be apprised of the factual basis for the affirmative defenses raised by a defendant just as a
defendant is entitled to be informed of the ultimate facts in support of the plaintiff's cause of
action. See Walker v. Walker, 245 So. 2d 832 (Fla. 1‘ DCA 1971). As such, the Defendant is
obligated to allege each element of the defense and the factual basis for same. See Cady 528 So.
€ 2d at 138; L.B. McLeod Constr. Co. v. Cooper, 134 So. 2d 224 (Fla. 1931). Therefore, because
Defendant’s Affirmative Defenses fail to raise any allegations of ultimate fact and are legally
insufficient, they should not prevent to the entry of a summary judgment of foreclosure.
Moreover, each of Defendant’s Affirmative Defenses should also be disregarded for the reasons
set forth below.
2 Defendant has alleged four conclusory affirmative defenses. Defendant fails to provide
any facts in support of any of these defenses and in so doing fails to apprise Plaintiff of the
File No.: FL-97004767-10
factual basis of the affirmative defenses raised. In addition to failing to allege the factual basis
for the affirmative defenses, Defendant fails to allege each element of the defenses. Therefore,
because Defendant pleads conclusions of law unsupported by allegations of ultimate fact and fail
to allege all the elements of each of the defenses, each affirmative defense raised by Defendant is
legally insufficient and fail to raise any material fact.
3 Defendant’s First Affirmative Defense alleges that the Plaintiff has unclean hands. To
establish unclean hands the Defendant must show either a fraudulent or illegal transaction or any
unrighteous, unconscious, or oppressive conduct by one seeking equitable interference on his
own behalf. See Epstein vs. Epstein, 915 So.2d 1272, 1275 (Fla. 4" DCA 2005). Defendant has
failed to allege any facts or necessary elements of law in support of this Affirmative Defense.
Plaintiff requests that the Court strike these affirmative defenses.
4 Defendant’s Second Affirmative Defense alleges that the Plaintiff lacks standing.
Plaintiff owned and held the subject note and mortgage prior to and at all times since the filing of
this foreclosure action. Plaintiff is the proper party to bring this suit. Plaintiff will file the
original note and mortgage with the Court prior to final disposition. Furthermore, There is no
legal requirement to attach the Assignment of Mortgage to the Complaint as proof of ownership
may be established at trial. See WM Specialty Mortgage, LLC v. Saloman, 874 So.2d 680 (Fla.
4th DCA 2004). Furthermore the Plaintiff is the original lender. Plaintiff requests that the Court
strike these affirmative defenses.
5 Defendant’s Third Affirmative Defense alleges that the Plaintiff has maintained a pattern
of waiver. Plaintiff has not waived the right to enforce the terms of the subject Note and
Mortgage. Plaintiff requests that the Court strike these affirmative defenses.
6 Defendant’s Fourth Affirmative Defense alleges that the Plaintiff is estopped from
bringing this foreclosure action. The elements for estoppel are 1) a representation as to material
fact that is contrary to the later-asserted position, 2) reliance on that representation, and 3)
change in position detrimental to the party claiming estoppel, caused by the representation and
reliance. See Llayds Underwriters at London v. Keystone Equipment Finance Corp., 25 $0.3 89
(la. 4th DCA 2009). Defendant has failed to allege the necessary facts or elements in support of
this affirmative defense. Plaintiff requests that the Court strike this affirmative defense.
File No.: FL-97004767-10
CERTIFICATE OF SERVICE
i HEREBY CERTIFY that a true and correct copy of the foregoing was served this
VW day of. ewer , 20.1, to the following:
DAVID HUBAND , JOSHUA BLEIL, ESQ., C/O THE TICKTIN LAW GROUP, PA, 600 W
HILLSBORO BLVD., STE. 220, DEERFIELD BEACH, FL 33441-1610
MORRIS [ARDWICK | SCHNEIDER, LLC
By
[ ] Anthony Perrone, Esq., FBN: 619841
{ ] Christopher Peck, Esq., FBN: 88774
[ ] Isemythe Duclos, Esq., FBN: 85848
[+Seott Stengel, Esq., FBN: 79086
Morris|Hardwick|Schneider
5110 Eisenhower Blwvd., Suite 120
Tampa, Florida 33634
Toll Free: 1-866-503-4930
File No.: FL-97004767-10
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IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CITIMORTGAGE, INC. CASE NO.: 2010-CA-025847-0 Plaintiff, SEC.: 33 Vv. DAVID HUBAND, et al.. Defendant(s). / PLAINTIFF’S REPLY TO DEFENDANTS’ AFFIRMATIVE DEFENSES Plaintiff, CITIMORTGAGE, INC., by and through the undersigned counsel hereby serves its Reply to the Affirmative Defenses of Defendant, DAVID HUBAND, and states: 1 It is well settled that allegations on an Answer that purport to be Affirmative Defenses, but which are nothing more than denials or conclusions of law must be stricken. Wiggins v. Protmay, 430 So.2d 541 (Pla. 1 DCA 1983). Certainty is required when pleading Affirmative Defenses. Pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient. Cady v. Chevy Chase Savings and Loan, Inc., 528 So. 2d 136 (Fla. 4th DCA 1988); Thompson v. Bank of New York, 862 So. 2d 768 (Fla. 4th DCA 2003). A plaintiff is entitled to be apprised of the factual basis for the affirmative defenses raised by a defendant just as a defendant is entitled to be informed of the ultimate facts in support of the plaintiff's cause of action. See Walker v. Walker, 245 So. 2d 832 (Fla. 1‘ DCA 1971). As such, the Defendant is obligated to allege each element of the defense and the factual basis for same. See Cady 528 So. € 2d at 138; L.B. McLeod Constr. Co. v. Cooper, 134 So. 2d 224 (Fla. 1931). Therefore, because Defendant’s Affirmative Defenses fail to raise any allegations of ultimate fact and are legally insufficient, they should not prevent to the entry of a summary judgment of foreclosure. Moreover, each of Defendant’s Affirmative Defenses should also be disregarded for the reasons set forth below. 2 Defendant has alleged four conclusory affirmative defenses. Defendant fails to provide any facts in support of any of these defenses and in so doing fails to apprise Plaintiff of the File No.: FL-97004767-10 factual basis of the affirmative defenses raised. In addition to failing to allege the factual basis for the affirmative defenses, Defendant fails to allege each element of the defenses. Therefore, because Defendant pleads conclusions of law unsupported by allegations of ultimate fact and fail to allege all the elements of each of the defenses, each affirmative defense raised by Defendant is legally insufficient and fail to raise any material fact. 3 Defendant’s First Affirmative Defense alleges that the Plaintiff has unclean hands. To establish unclean hands the Defendant must show either a fraudulent or illegal transaction or any unrighteous, unconscious, or oppressive conduct by one seeking equitable interference on his own behalf. See Epstein vs. Epstein, 915 So.2d 1272, 1275 (Fla. 4" DCA 2005). Defendant has failed to allege any facts or necessary elements of law in support of this Affirmative Defense. Plaintiff requests that the Court strike these affirmative defenses. 4 Defendant’s Second Affirmative Defense alleges that the Plaintiff lacks standing. Plaintiff owned and held the subject note and mortgage prior to and at all times since the filing of this foreclosure action. Plaintiff is the proper party to bring this suit. Plaintiff will file the original note and mortgage with the Court prior to final disposition. Furthermore, There is no legal requirement to attach the Assignment of Mortgage to the Complaint as proof of ownership may be established at trial. See WM Specialty Mortgage, LLC v. Saloman, 874 So.2d 680 (Fla. 4th DCA 2004). Furthermore the Plaintiff is the original lender. Plaintiff requests that the Court strike these affirmative defenses. 5 Defendant’s Third Affirmative Defense alleges that the Plaintiff has maintained a pattern of waiver. Plaintiff has not waived the right to enforce the terms of the subject Note and Mortgage. Plaintiff requests that the Court strike these affirmative defenses. 6 Defendant’s Fourth Affirmative Defense alleges that the Plaintiff is estopped from bringing this foreclosure action. The elements for estoppel are 1) a representation as to material fact that is contrary to the later-asserted position, 2) reliance on that representation, and 3) change in position detrimental to the party claiming estoppel, caused by the representation and reliance. See Llayds Underwriters at London v. Keystone Equipment Finance Corp., 25 $0.3 89 (la. 4th DCA 2009). Defendant has failed to allege the necessary facts or elements in support of this affirmative defense. Plaintiff requests that the Court strike this affirmative defense. File No.: FL-97004767-10 CERTIFICATE OF SERVICE i HEREBY CERTIFY that a true and correct copy of the foregoing was served this VW day of. ewer , 20.1, to the following: DAVID HUBAND , JOSHUA BLEIL, ESQ., C/O THE TICKTIN LAW GROUP, PA, 600 W HILLSBORO BLVD., STE. 220, DEERFIELD BEACH, FL 33441-1610 MORRIS [ARDWICK | SCHNEIDER, LLC By [ ] Anthony Perrone, Esq., FBN: 619841 { ] Christopher Peck, Esq., FBN: 88774 [ ] Isemythe Duclos, Esq., FBN: 85848 [+Seott Stengel, Esq., FBN: 79086 Morris|Hardwick|Schneider 5110 Eisenhower Blwvd., Suite 120 Tampa, Florida 33634 Toll Free: 1-866-503-4930 File No.: FL-97004767-10