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IN THE CIRCUIT COURT OF THE 20TH JUDICIAL
CIRCUIT, INAND FOR COLLIER COUNTY, FLORIDA
TAYLOR, BEAN & WHITAKER MORTGAGE GENERAL JURISDICTION DIVISION
CORPORATION
Plaintiff, CASE NO.: 09-CA-005797
Vs.
CHRISTOPHER M. POWERS A/K/A
CHRISTOPHER MIKHAIL POWERS A/K/A
CHRISTOPHER POWERS, ET AL.,
DEFENDANTS. I
ANSWER AND AFFIRMATIVE DEFENSES
FOR ° 3
FAIRMONT RESIDENTS' ASSOCIATION, INC.
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Defendant, FAIRMONT RESIDENTS' ASSOCIATION, INC. (hereinafter "ASSOCIATION"),
files herewith its Answer to Plaintiff's Complaint, as follows:
1.
Complaint.
2.
Defendant, ASSOCIATION, admits the allegations in Paragraph 1 of Plaintiff's
Defendant, ASSOCIATION, is without knowledge of the allegations in Paragraphs
2, 3, 4, 5, 6, 7, 8, 9, 10 of Plaintiff's Complaint and demands strict proof thereof.
3. As to the allegations contained in Paragraph 11 of the Plaintiff's Complaint,
Defendant, ASSOCIATION, admits that it has an interest, but denies that its interest is subject and
inferior to that of Plaintiff's Mortgage.
FIRST AFFIRMATIVE DEFENSE
Pursuant to §720.3085(2), Florida Statutes, if someone other than the first mortgage
holder purchases the property at the sale, they are liable for all of the unpaid common expenses
4.
in addition to interest, costs, and attorneys’ fees secured by the lien of the ASSOCIATION against
the unit.
5. If Plaintiff holds a first mortgage lien and if it purchases the subject property at the
foreclosure sale, it is liable to the ASSOCIATION under §720.3085(2)(c), Florida Statutes, for all
unpaid regular assessments and special assessments that come due during the twelve (12) months
immediately preceding its acquisition of title, or for an amount equal to one (1%) percent of the
original mortgage debt, whichever is less.
fprCase No.: 09-CA-005797
6. Pursuant to §720.3085(1), Florida Statutes, the ASSOCIATION'S Claim of Lien is
superior to any lien against the property, other than a first mortgage, recorded after the date that
the original Declaration of the Community was recorded, since the lien relates back to said date.
WHEREFORE, ASSOCIATION prays this Court to adjudicate and determine the lien owned
by ASSOCIATION to be superior in time and title to the claim of interest of the Plaintiff and the
other named Defendants to and in the real property involved; or, in the alternative, this Defendant
prays that the Court establish the order of priority of all liens against said property, and to provide
for the protection and payment of such liens, and to disburse to this Defendant the proceeds to
which it is entitled by virtue of its lien.
SECOND AFFIRMATIVE DEFENSE
7. As and for its second affirmative defense, Defendant, ASSOCIATION, respectfully
requests this Court enter an Order setting the priority of lien and mortgage holders on the above-
referenced property and should there be funds in excess of the principal amount of indebtedness,
that said funds be disbursed to successive lien or mortgage holders set pursuant to this Court's
Order.
| HEREBY CERTIFY that a true and correct copy of the above and foregoing has been sent
via regular United States Mail to: Brian Kowal, Esquire, Marshall C. Watson, P.A., 1800 NW 49th
Street, Suite 120, Fort Lauderdale, Florida 33309, this 1st day of October, 2009.
PAVESE LAW FIRM
POST OFFICE BOX 1565
FORT MYERS, FLORIDA 33902
TEL: 239-336-6256
FAX: 239-332-2243
_ (le
Christopher J. Shields
Florida Bar No.: 436828
FAWPDATA\CJS\Fairmont Residents (81651.001)-DNP prep RFCL\Powers (Bnk FCL - 09-CA-005797)\Answer (10-01-09).wpd
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IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT, INAND FOR COLLIER COUNTY, FLORIDA TAYLOR, BEAN & WHITAKER MORTGAGE GENERAL JURISDICTION DIVISION CORPORATION Plaintiff, CASE NO.: 09-CA-005797 Vs. CHRISTOPHER M. POWERS A/K/A CHRISTOPHER MIKHAIL POWERS A/K/A CHRISTOPHER POWERS, ET AL., DEFENDANTS. I ANSWER AND AFFIRMATIVE DEFENSES FOR ° 3 FAIRMONT RESIDENTS' ASSOCIATION, INC. ~ 23 S 2B Q = =“ ‘ nm ceed a Defendant, FAIRMONT RESIDENTS' ASSOCIATION, INC. (hereinafter "ASSOCIATION"), files herewith its Answer to Plaintiff's Complaint, as follows: 1. Complaint. 2. Defendant, ASSOCIATION, admits the allegations in Paragraph 1 of Plaintiff's Defendant, ASSOCIATION, is without knowledge of the allegations in Paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10 of Plaintiff's Complaint and demands strict proof thereof. 3. As to the allegations contained in Paragraph 11 of the Plaintiff's Complaint, Defendant, ASSOCIATION, admits that it has an interest, but denies that its interest is subject and inferior to that of Plaintiff's Mortgage. FIRST AFFIRMATIVE DEFENSE Pursuant to §720.3085(2), Florida Statutes, if someone other than the first mortgage holder purchases the property at the sale, they are liable for all of the unpaid common expenses 4. in addition to interest, costs, and attorneys’ fees secured by the lien of the ASSOCIATION against the unit. 5. If Plaintiff holds a first mortgage lien and if it purchases the subject property at the foreclosure sale, it is liable to the ASSOCIATION under §720.3085(2)(c), Florida Statutes, for all unpaid regular assessments and special assessments that come due during the twelve (12) months immediately preceding its acquisition of title, or for an amount equal to one (1%) percent of the original mortgage debt, whichever is less. fprCase No.: 09-CA-005797 6. Pursuant to §720.3085(1), Florida Statutes, the ASSOCIATION'S Claim of Lien is superior to any lien against the property, other than a first mortgage, recorded after the date that the original Declaration of the Community was recorded, since the lien relates back to said date. WHEREFORE, ASSOCIATION prays this Court to adjudicate and determine the lien owned by ASSOCIATION to be superior in time and title to the claim of interest of the Plaintiff and the other named Defendants to and in the real property involved; or, in the alternative, this Defendant prays that the Court establish the order of priority of all liens against said property, and to provide for the protection and payment of such liens, and to disburse to this Defendant the proceeds to which it is entitled by virtue of its lien. SECOND AFFIRMATIVE DEFENSE 7. As and for its second affirmative defense, Defendant, ASSOCIATION, respectfully requests this Court enter an Order setting the priority of lien and mortgage holders on the above- referenced property and should there be funds in excess of the principal amount of indebtedness, that said funds be disbursed to successive lien or mortgage holders set pursuant to this Court's Order. | HEREBY CERTIFY that a true and correct copy of the above and foregoing has been sent via regular United States Mail to: Brian Kowal, Esquire, Marshall C. Watson, P.A., 1800 NW 49th Street, Suite 120, Fort Lauderdale, Florida 33309, this 1st day of October, 2009. PAVESE LAW FIRM POST OFFICE BOX 1565 FORT MYERS, FLORIDA 33902 TEL: 239-336-6256 FAX: 239-332-2243 _ (le Christopher J. Shields Florida Bar No.: 436828 FAWPDATA\CJS\Fairmont Residents (81651.001)-DNP prep RFCL\Powers (Bnk FCL - 09-CA-005797)\Answer (10-01-09).wpd