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Filing # 38016072 E-Filed 02/19/2016 10:02:39 AM
IN THE COUNTY COURT, FOURTH
JUDICIAL CIRCUIT, IN AND FOR
DUVAL COUNTY, FLORIDA
CASE NO.: 16-2016-CC-1268
DIVISION: CC-J
TRUST NO. 13810 SP,
Plaintiff/Landlord,
vs.
HARRY LAMAR NELSON
Defendant/Tenant.
/
PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES
Plaintiff, TRUST NO. 13810 SP, files its Motion to Strike Defendant’s Affirmative
Defenses and further states as follows:
1 On or about February 1, 2016, Plaintiff filed its Complaint for Eviction seeking
only an eviction of Defendant from the subject property for non-payment of rent.
2 On or about February 11, 2016, Defendant filed his Answer and Affirmative
Defenses to the Complaint for Eviction. Defendant has asserted four (4) affirmative defenses.
The affirmative defenses should be stricken on the grounds stated in this Motion to Strike.
3 An affirmative defense is one that admits the cause of action asserted in the initial
pleading but avoids liability wholly or partly, by allegations of excuse, justification or other
matter negating the action. See Rule 1.110(d), Florida Rules of Civil Procedure, and St. Paul
Mercury Ins. Co. v. Coucher, 837 So. 2d 483, 487 (Fla. 5" DCA 2002).
4 A motion to strike a defense tests the legal sufficiency of the defense. Certainty is
required when pleading defenses and pleading conclusions of law unsupported by allegations of
ultimate fact is legally insufficient. Cady v. Chevy Chase Savings And Loan, Inc., 528 So. 2d
1
FILED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 02/19/2016 12:16:10 PM
136 (Fla. 4" DCA 1988). A motion to strike is appropriate in cases where the defense is shown
to be a plain fiction. Rhea v. Hackney, 117 Fla. 62 (1934).
5 Incorporated into Defendant’s affirmative defenses are the following false and
legally insufficient claims contained within Defendant’s answer:
a. Paragraph 19: During the second week of May, 2015, Mr. Nelson invited
Mr. Burdetti to his home to discuss a loan to pay off his debts;
Paragraph 20: During the meeting, Mr. Nelson and Mr. Burdetti agreed to
a loan with the following terms: (a) Mr. Burdetti would loan Mr. Nelson
$20,000.00; (b) the loan would bear interest at 12%; (c) Mr. Nelson would
use the proceeds of the loan to pay off the outstanding property taxes, HOA
fees and liens, and a debt Mr. Nelson owed to Donovan Heating & Air for
the installation of an air conditioning unit in 2012; (d) repayment of the
loan would begin June 1, 2015; (e) the June and July 2015 payments would
be paid for out of the proceeds of the loan, and (f) any proceeds of the loan
remaining after the payment of the debts and first months payments would
be given to Mr. Nelson;
Paragraph 25: Mr. Nelson had no intention to convey ownership of his
homestead property. Mr. Nelson believed he had entered into a loan
agreement with Mr. Burdetti at the previously agreed upon terms;
Paragraph 26: Mr. Nelson was tricked by Mr. Burdetti into conveying his
home to Plaintiff;
6 There are no loan documents. The transaction between Plaintiff and Defendant
was not a loan. The transaction was the sale of Defendant’s property to Plaintiff, which included
a lease-back term where Defendant was to remain in the property as a tenant and pay rent to the
Plaintiff. In addition to the Quit Claim Deed attached to Plaintiff's Complaint as Exhibit “A”
and the Florida Realtors’ Residential Lease attached to Plaintiff Complaint as Exhibit “B,” the
only other existing documents between the parties related to this transaction include a purchase
and sale agreement, a No Brokerage Relationship Notice form, and a closing statement from the
sale. There was no loan agreement because there was no loan involved in the transaction; rather,
2
it was the sale and purchase of Defendant’s property. Attached hereto as Exhibit “A” and
incorporated by reference herein is an accurate and duplicate copy of the Florida Realtors’
Residential Contract for Sale and Purchase between the parties (“P & S Agreement”) for 13810
Sutton Park Drive N., Unit 839, Jacksonville, FL. 32224 (the “Subject Property”). Attached
hereto as Exhibit “B” and incorporated by reference herein is an accurate and duplicate copy of
the No Brokerage Relationship Notice. Attached hereto as Exhibit “C” and incorporated by
teference herein is an accurate and duplicate copy of the Closing Statement for the Subject
Property.
7
The Defendant’s asserted affirmative defenses, which incorporate his false and
legally insufficient claims quoted above, are not supported by fact or law, and, therefore, are
subject to a motion to strike.
8 Defendant’s First Affirmative Defense is titled “Fraud” and reads as follows:
The subject transaction was originated as a result of fraud, as Defendant intended
to enter into a loan agreement and never received any proceeds from the loan
origination.
9 Defendant’s First Affirmative Defense is legally insufficient, not supported by the
ultimate facts pursuant to the written agreements between the parties, and is plain fiction. First,
Defendant executed on May 15, 2015 a “No Brokerage Relationship Notice,” which clearly
contemplates the selling of the Subject Property, not a loan. Second, Defendant executed on
May 15, 2015, the Purchase and Sale Agreement for the Subject Property. Not only did
Defendant sign this, but Defendant initialed every page. The Purchase and Sale Agreement is
the standard form used, published and approved by The Florida Realtors and The Florida Bar.
Third, Defendant executed on June 5, 2015 the Closing Statement. Defendant
even wrote “Received payment in cash in full” under his signature for that remaining balance he
3
received from closing. Fourth, Defendant executed the Residential Lease approved by The
Florida Realtors and attached to Plaintiff’s Complaint at Exhibit “B.” Moreover, Defendant
initialed every page. The Residential Lease had attached to it the entire Florida Residential
Landlord and Tenant Act, to which Defendant, again, initialed every page.
10. Defendant’s Second Affirmative Defense is titled “Failure to State a Cause of
Action” and reads as follows:
The Complaint fails to state a cause of action as a matter of law. The Plaintiffs
Complaint fails to state the elements of rent or a lease which is required to
establish the existence of a landlord/tenant relationship between the parties.
Therefore the Plaintiff has not filed a pleading that states a cause of action upon
which relief can be granted.
11. Defendant’s Second Affirmative Defense is merely a conclusion of law with no
factual support. It is not the confession and avoidance necessary to support a valid affirmative
defense and should be stricken. In its Complaint for Eviction, Plaintiff alleges all elements for a
cause of action for eviction. Moreover, Plaintiff attached to its Complaint as Exhibit “B” the
Residential Lease approved by The Florida Realtors, which was signed by Defendant.
12. Defendant’s Third Affirmative Defense is titled “Unclean Hands” and reads as
follows:
Plaintiff has acted with unclean hands in the underlying transaction and in the
attempt to evict Mr. Nelson from his home. Further, agents of Trust No. 13810
SP engaged in a scheme to defraud Mr. Nelson.
13. Defendant’s Third Affirmative Defense is legally insufficient, not supported by
the ultimate facts pursuant to the written agreements between the parties, and is plain fiction.
First, Defendant executed on May 15, 2015 a “No Brokerage Relationship Notice,” which clearly
contemplates the selling of the Subject Property, not a loan. Second, Defendant executed on
May 15, 2015, the Purchase and Sale Agreement for the Subject Property. Not only did
4
Defendant sign this, but Defendant initialed every page. The Purchase and Sale Agreement is
the standard form used, published and approved by The Florida Realtors and The Florida Bar.
Third, Defendant executed on June 5, 2015 the Closing Statement. Defendant
even wrote “Received payment in cash in full” under his signature for that remaining balance he
received from closing. Fourth, Defendant executed the Residential Lease approved by The
Florida Realtors and attached to Plaintiff’s Complaint at Exhibit “B.” Moreover, Defendant
initialed every page. The Residential Lease had attached to it the entire Florida Residential
Landlord and Tenant Act, to which Defendant, again, initialed every page.
14. Defendant’s Fourth Affirmative Defense is titled “Breach of Contract” and reads
as follows:
Plaintiff breached the terms of the contract entered into by Mr. Nelson by failing
to pay the debt to Donovan Heat & Air with the proceeds of the loan transaction.
1S. Defendant’s Fourth Affirmative Defense is legally insufficient, not supported by
the ultimate facts pursuant to the written agreements between the parties, and is plain fiction.
Paragraph 20 of the Purchase and Sale Agreement states that “All closing costs, liens, back taxes,
current taxes, HOA fees, dues and assessments, maintenance fees, mechanics liens, repair bills,
and any other financial obligations of the seller for the property shall be either paid for in
advance of closing by seller And/OR shall be deducted from sellers net proceeds at closing.”
Plaintiff accepted the Subject Property subject to any and all liens or potential lien
claims. Conversely, Defendant had no further obligation to those existing liens or debts post-
closing. Moreover, Defendant would have no further obligation to any future potential lien
claims post-closing. Stated another way, those existing debts on the Subject Property become
the sole obligation of Plaintiff post-closing. And the underlying agreements do not impose a
5
time period in which Plaintiff would need to satisfy any existing debts remaining on the Subject
Property, post-closing, that Defendant failed to satisfy prior to closing. Moreover, this defense
continues to refer to a loan transaction and there was no loan transaction. It is impossible for
Plaintiff to breach a loan agreement that does not exist.
WHEREFORE, Plaintiff requests the entry of an order striking Defendant, Harry Lamar
Nelson’s, Affirmative Defenses to the Complaint for Eviction on the grounds stated in this
motion.
JIMERSON & COBB, P.A.
By: LL CCL
Hans C. Wahl
Florida Bar No. 0099671
hwahl jimersoncobb.com
One Independent Drive
Suite 1400
Jacksonville, FL 32202
Telephone: (904) 389-0050
Facsimile: (904) 212-1269
fileclerk jimersoncobb.com
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I CERTIFY that the foregoing document has been furnished to the below recipients via
electronic mail on this 19" day of February, 2016.
Allison E, Albert, Esq.
Jacksonville Area Legal Aid, Inc.
126 West Adams Street
Jacksonville, FL 32202
Allison.albert@jaxlegalaid.org
jalaconsumer@jaxlegalaid.org
Attorney for Defendant
be. COLL
Attorney
Exhibit “A”
“AS IS” Residential Contract For Sale And Purchase ra
THIS FORM HAS BEEN APPROVED BY THE FLORIDA REALTORS AND THE FLORIDA BAR
ha Realtors”
PARTIES: LAMAR HARRY NELSON (Seller5.
and TRUST NO 13810 SP or assigns (Buyer.
agree that Seller shall sell and Buyer shall buy the tollowing described Real Property and Personal Pro;
(collectively “Property’) pursuant to the terms and conditions of this AS 1S Residential Contract For Sale And Purchase and
any nders and addenda (‘Contract’):
Ww PROPERTY DESCRIPTION:
(a) Steet address, city, zip: 13810 SUTTON PARK DR N 839, JACKSONVILLE, FL 32224
(b) Property is located in: DuVv County, Florida. Real Property Tax ID No.: 16734-2085
(c) Real Property: The legal description is 14-3 S-2BE GRAND RESERVE CONDOMINIUM UNIT 839 UNDIV INT 2435
10 COMMON ELEMENT O/R 10552-2156
"i
2 fogether with all existing improvements and fixtures. including builtin appliances, built-in furnishings and attached
6 wall-to-wall car peting and flooring (‘Real Property") unless specifically excluded in Paragraph 1(e) or by other terms
4 of this Contract.
5 () Personal Property: Unless excluded in Paragraph 1(e) or by other terms of this Contract, the following items
which
8 are awned by Seller and existing on the Property as of the date of the initial offer are included in the
purchase”
7 range(s/oven(s), refrigerator (s), dishwasher(s}, disposal, ceiling fan(s), intercom, light fixture(s), drapery
8 draperies, blinds, window treatments, smoke detect: lor(s), garage door opener(s), security gate and otherrods and
access
19 devices, and storm shutterspanets ("1 Personal Property").
~ Other Personal Property items included in this purchase are:
ot
Personal Property is included in the Purchase Price, has no contributory value, and shall be left for the Buyer.
oe {e) The following items are exciuded from the purchase:
a
PURCHASE PRICE AND CLOSING
PURCHASE PRICE (U.S. currency):.. 20,000.00
a {2) Initial deposit to be held in escrow in the amount of (checks subject to COLLECT .00
The initial deposit made payable and delivered to "Escrow Agent’ named below
2 (CHECK ONE): (i) &] accompanies offer or (ii) DD is to be made within if left blank,
then 3) days after Effective Date. IF NEITHER BOX IS CHECKED, THEN OPTION (i)
a SHALL BE DEEMED SELECTED.
33° Escrow Agent Information: Name:
33" Address:
“ Phone: E-mail:
ase Fax: .
{0) Additional deposit to be delivered to Escrow Agent within (if left blank, then 70)
26¢ days after Effective Date...
a (All deposits paid or agreed to be paid, ere collectively referred to as the
*Deposit’
38" (c) Financing: Express as a dollar amount or percentage ("Loan Amount") see Paragraph 8,
29° {d) Other.,
{e) Balance to close (not including Buyer's closing costs, prepaids and pProrations) by wire
a transfer or other COLLECTED funds. 19,800.00
43
NOTE: For the definition of “COLLECTION”
TIME FOR ACCEPTANCE OF OFFER AND COUNTER-OFFERS;
or “COLLECTED” see STANDARD S.
EFFECTIVE DATE:
age (2) I not signed by Buyer and Seller, and an executed copy delivered to alll parties on or before
or this offer shall be deemed withdrawn and the Deposit, if any, shall be returned to
Buyer. Unless otherwise stated, time for acceptance of any counter-offers shail be within 2 days after the day the
aT counter-offer is delivered,
(b) The effective date of this Contract shall be the date when th ie last one of the Buyer and Seller has signed or initialed
49 and delivered this offer or final counter-cifer (‘Effective Dat ie").
CLOSING DATE: Unless modified by other provisions of this Contract, the closing of this transaction shall occur and
st the closing documents required to be furnished by each party pursuant to this Contract shall be delivered (‘Closing’)
on.
(‘Closing Date"), at the time established by the Closing Agent.
5. EXTENSION OF CLOSING DATE:
{@) If Closing funds from Buyer's lender{s) are not available at time of Closing due to Truth In Lending Act (TILA) notice
requirements, Closing shall be extended for such period necessary to satisfy TILA notice requirements. not to
exceed 7 .
L
A rE
582 Cen Ae pps LS ee a ete
553 eee Slee law ee L - BIE
POP) Se =
COUNTER-OFFER/REJECTION =
555° Gi Sefer counters Buyer's offer (tc accept the counter-offer, Buyer must sign or initial the counter-offered terms and deliver
a copy of the acceptance to Seller).
Cj Sefer rejects Buyer's offer.
THIS IS INTENDED TO 8E A LEGALLY BINDING CONTRACT. IF NOT FULLY UNDERSTOOD, SEEK THE ADVICE OF
$59 AN ATTORNEY PRIOR TO SIGNING.
THIS FORM HAS BEEN APPROVED BY THE FLORIDA REALTORS AND THE FLORIDA BAR.
583 Approval of this form by the Florida Realtors and The Florida Bar does not constitute an opinion that any of the terms and
362 conditions in this Contract should be accepted by the parties in a particular transaction. Terms and conditions should be
negotiated based upon the respective interests, objectives and bargaining positions of all interested persons,
Buyers intas
Fi Real
V0
lordaBarASIS3
Page 10 of 14 Rer's Inibals
Rev.9/14 © 2014 Florida Realtors* and The Florida Bar. All rights reserved.
KY
Scout ortea.50003.1710715.
wpe
$64 AN ASTERISK (") FOLLOWING A LINE NUMBER IN THE MARGIN INDICATES THE LINE
CONTAINS A BLANK TO BE
COMPLETEO
567
Buyer.
57D
sry wot
672
S73" Buyer: I Date: Ss /,
974
575.
s7e Seller: oe i _
Date: J. LE
a
ST 4p
582
58" Seller. Date:
585 Buyer’s address for purposes of notice Seller's address for purposes of notice
ses Ison59@amail.com joeb@ampmenow.com
sav"
BS
soc BROKER: Listing and Cooperating Brokers, if any, named below (collectively,
“Broker"), are the only Brokers entitled to
a9 compensation in connection with this Contract. Instruction to Closing Agent:
Seller and Buyer direct Closing Agent to
392 disburse at Closing the tull amount of the brokerege fees as specified in sepa rate brokerage agreements with the parties
598. and cooperative agreements between the Brokers, excent to the extant Broker fF has retained such fees
from the escrowed
funds. This Contract shall not modify any MLS or other offer of compen: sation made by Seller or Listing Broker to
595 Cooperating Brokers.
o7* NIA NIA
$98 Cooperating Sales Associate, if any Listing Sales Associate
NIA N/A
OT Cooperating Broker, if any Listing Broker
11 of 14
FloridaRealtorsiFloridaBar-ASIS-3 Rev.9/14 62014 Florida Realtors*and The Flonda Bar. A fights reserved.
‘Sariait. O719846001a3.1730215,
Exhibit “B
rR
REALTOR’
NO BROKERAGE RELATIONSHIP NOTICE
REALTOR
FLORIDA LAW REQUIRES THAT REAL ES TATE LICENSEES WHO
RELATIONSHIP
HAVE NO BROKERAGE
WITH A POTENTIAL SEL LER OR BUYER DISCLOSE THEIR DUTIES TO
SELLERS AND BUYERS.
As a real estate licensee who has no brokerage relati
onship with you, Joseph M. Budetti and or Asset
Monetization Partners
{insert neme of Real Estate Entity and its Associates)
owe to you the following duties:
1. Dealing honestly and fairly:
2, Disclosing all known facts tha it materi
ally affect the value of resi dential real prope
readily observable fo the BUY! ER; and rty which are not
3. Accounting for all funds entrusted
to the licensee,
DATE
SLsese—7
SIGNATURE
DATE
NBRN
Seesth OL42N7-100143-1615757 4.16.12,
Prepon. duarsth Bane | DeOBempepenoeee,
w | LHLOGTTTE Hab isimahivins
Exhibit “C”
Sales costs for: 13810 Sutton Park Dr. N unit 839
eee
|Date: 6/3/2015
cane
$20,000.0¢ Sale Lease Back Price
($400. 00}, Cash Down Payment to sellerrby! b
2,000}; HOA Foreclosure & n Costs
($4,800): HOA Foreclosure & Lien Costs
wae wml
74 Rent. due for June
(Si Pre-paid Rent for July
(S: le Search
}_ 2,912.73), Donovan Heating and Air Lien
98)'COJ Property x Auctior
— 123.94)
oa orated Property Taxes 1/15 to 6/5/15
—.
——! ($10.50) - ee
($140.00) scumentary Deed Stamp 1Tax
($350.00) ‘orney's Fees Document Preparation
otary
ry Stamps & Certifies
tified Bank
Bank Checks
($ 14,757. 25) 7Total Costs paid by bbuyer 1to ‘seller oron behalf of sell
seller.
$5,242.75 emai g balance du eller
-—
pi. ween aeamanin son Sia Dita
s coal,
+e —~ ae
Selle nature mw Date: & /:
a
oe. D pis
“Be CL may 741 Cael
Fie Mv {Sale lease back price reduced due to long
Note: term subsidized rent to tenant.
Buyer agrees not to sell the property
unless tenant defaults under the terms
jof the then current lease agreement.
“ply. BUELL Prorat et Heeclae
, Raeaf~
Paryrre-F he veple—
HOA = 29/ =
rer ke
ae fa ae
Preview
Filing # 38016072 E-Filed 02/19/2016 10:02:39 AM IN THE COUNTY COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA CASE NO.: 16-2016-CC-1268 DIVISION: CC-J TRUST NO. 13810 SP, Plaintiff/Landlord, vs. HARRY LAMAR NELSON Defendant/Tenant. / PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES Plaintiff, TRUST NO. 13810 SP, files its Motion to Strike Defendant’s Affirmative Defenses and further states as follows: 1 On or about February 1, 2016, Plaintiff filed its Complaint for Eviction seeking only an eviction of Defendant from the subject property for non-payment of rent. 2 On or about February 11, 2016, Defendant filed his Answer and Affirmative Defenses to the Complaint for Eviction. Defendant has asserted four (4) affirmative defenses. The affirmative defenses should be stricken on the grounds stated in this Motion to Strike. 3 An affirmative defense is one that admits the cause of action asserted in the initial pleading but avoids liability wholly or partly, by allegations of excuse, justification or other matter negating the action. See Rule 1.110(d), Florida Rules of Civil Procedure, and St. Paul Mercury Ins. Co. v. Coucher, 837 So. 2d 483, 487 (Fla. 5" DCA 2002). 4 A motion to strike a defense tests the legal sufficiency of the defense. Certainty is required when pleading defenses and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient. Cady v. Chevy Chase Savings And Loan, Inc., 528 So. 2d 1 FILED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 02/19/2016 12:16:10 PM 136 (Fla. 4" DCA 1988). A motion to strike is appropriate in cases where the defense is shown to be a plain fiction. Rhea v. Hackney, 117 Fla. 62 (1934). 5 Incorporated into Defendant’s affirmative defenses are the following false and legally insufficient claims contained within Defendant’s answer: a. Paragraph 19: During the second week of May, 2015, Mr. Nelson invited Mr. Burdetti to his home to discuss a loan to pay off his debts; Paragraph 20: During the meeting, Mr. Nelson and Mr. Burdetti agreed to a loan with the following terms: (a) Mr. Burdetti would loan Mr. Nelson $20,000.00; (b) the loan would bear interest at 12%; (c) Mr. Nelson would use the proceeds of the loan to pay off the outstanding property taxes, HOA fees and liens, and a debt Mr. Nelson owed to Donovan Heating & Air for the installation of an air conditioning unit in 2012; (d) repayment of the loan would begin June 1, 2015; (e) the June and July 2015 payments would be paid for out of the proceeds of the loan, and (f) any proceeds of the loan remaining after the payment of the debts and first months payments would be given to Mr. Nelson; Paragraph 25: Mr. Nelson had no intention to convey ownership of his homestead property. Mr. Nelson believed he had entered into a loan agreement with Mr. Burdetti at the previously agreed upon terms; Paragraph 26: Mr. Nelson was tricked by Mr. Burdetti into conveying his home to Plaintiff; 6 There are no loan documents. The transaction between Plaintiff and Defendant was not a loan. The transaction was the sale of Defendant’s property to Plaintiff, which included a lease-back term where Defendant was to remain in the property as a tenant and pay rent to the Plaintiff. In addition to the Quit Claim Deed attached to Plaintiff's Complaint as Exhibit “A” and the Florida Realtors’ Residential Lease attached to Plaintiff Complaint as Exhibit “B,” the only other existing documents between the parties related to this transaction include a purchase and sale agreement, a No Brokerage Relationship Notice form, and a closing statement from the sale. There was no loan agreement because there was no loan involved in the transaction; rather, 2 it was the sale and purchase of Defendant’s property. Attached hereto as Exhibit “A” and incorporated by reference herein is an accurate and duplicate copy of the Florida Realtors’ Residential Contract for Sale and Purchase between the parties (“P & S Agreement”) for 13810 Sutton Park Drive N., Unit 839, Jacksonville, FL. 32224 (the “Subject Property”). Attached hereto as Exhibit “B” and incorporated by reference herein is an accurate and duplicate copy of the No Brokerage Relationship Notice. Attached hereto as Exhibit “C” and incorporated by teference herein is an accurate and duplicate copy of the Closing Statement for the Subject Property. 7 The Defendant’s asserted affirmative defenses, which incorporate his false and legally insufficient claims quoted above, are not supported by fact or law, and, therefore, are subject to a motion to strike. 8 Defendant’s First Affirmative Defense is titled “Fraud” and reads as follows: The subject transaction was originated as a result of fraud, as Defendant intended to enter into a loan agreement and never received any proceeds from the loan origination. 9 Defendant’s First Affirmative Defense is legally insufficient, not supported by the ultimate facts pursuant to the written agreements between the parties, and is plain fiction. First, Defendant executed on May 15, 2015 a “No Brokerage Relationship Notice,” which clearly contemplates the selling of the Subject Property, not a loan. Second, Defendant executed on May 15, 2015, the Purchase and Sale Agreement for the Subject Property. Not only did Defendant sign this, but Defendant initialed every page. The Purchase and Sale Agreement is the standard form used, published and approved by The Florida Realtors and The Florida Bar. Third, Defendant executed on June 5, 2015 the Closing Statement. Defendant even wrote “Received payment in cash in full” under his signature for that remaining balance he 3 received from closing. Fourth, Defendant executed the Residential Lease approved by The Florida Realtors and attached to Plaintiff’s Complaint at Exhibit “B.” Moreover, Defendant initialed every page. The Residential Lease had attached to it the entire Florida Residential Landlord and Tenant Act, to which Defendant, again, initialed every page. 10. Defendant’s Second Affirmative Defense is titled “Failure to State a Cause of Action” and reads as follows: The Complaint fails to state a cause of action as a matter of law. The Plaintiffs Complaint fails to state the elements of rent or a lease which is required to establish the existence of a landlord/tenant relationship between the parties. Therefore the Plaintiff has not filed a pleading that states a cause of action upon which relief can be granted. 11. Defendant’s Second Affirmative Defense is merely a conclusion of law with no factual support. It is not the confession and avoidance necessary to support a valid affirmative defense and should be stricken. In its Complaint for Eviction, Plaintiff alleges all elements for a cause of action for eviction. Moreover, Plaintiff attached to its Complaint as Exhibit “B” the Residential Lease approved by The Florida Realtors, which was signed by Defendant. 12. Defendant’s Third Affirmative Defense is titled “Unclean Hands” and reads as follows: Plaintiff has acted with unclean hands in the underlying transaction and in the attempt to evict Mr. Nelson from his home. Further, agents of Trust No. 13810 SP engaged in a scheme to defraud Mr. Nelson. 13. Defendant’s Third Affirmative Defense is legally insufficient, not supported by the ultimate facts pursuant to the written agreements between the parties, and is plain fiction. First, Defendant executed on May 15, 2015 a “No Brokerage Relationship Notice,” which clearly contemplates the selling of the Subject Property, not a loan. Second, Defendant executed on May 15, 2015, the Purchase and Sale Agreement for the Subject Property. Not only did 4 Defendant sign this, but Defendant initialed every page. The Purchase and Sale Agreement is the standard form used, published and approved by The Florida Realtors and The Florida Bar. Third, Defendant executed on June 5, 2015 the Closing Statement. Defendant even wrote “Received payment in cash in full” under his signature for that remaining balance he received from closing. Fourth, Defendant executed the Residential Lease approved by The Florida Realtors and attached to Plaintiff’s Complaint at Exhibit “B.” Moreover, Defendant initialed every page. The Residential Lease had attached to it the entire Florida Residential Landlord and Tenant Act, to which Defendant, again, initialed every page. 14. Defendant’s Fourth Affirmative Defense is titled “Breach of Contract” and reads as follows: Plaintiff breached the terms of the contract entered into by Mr. Nelson by failing to pay the debt to Donovan Heat & Air with the proceeds of the loan transaction. 1S. Defendant’s Fourth Affirmative Defense is legally insufficient, not supported by the ultimate facts pursuant to the written agreements between the parties, and is plain fiction. Paragraph 20 of the Purchase and Sale Agreement states that “All closing costs, liens, back taxes, current taxes, HOA fees, dues and assessments, maintenance fees, mechanics liens, repair bills, and any other financial obligations of the seller for the property shall be either paid for in advance of closing by seller And/OR shall be deducted from sellers net proceeds at closing.” Plaintiff accepted the Subject Property subject to any and all liens or potential lien claims. Conversely, Defendant had no further obligation to those existing liens or debts post- closing. Moreover, Defendant would have no further obligation to any future potential lien claims post-closing. Stated another way, those existing debts on the Subject Property become the sole obligation of Plaintiff post-closing. And the underlying agreements do not impose a 5 time period in which Plaintiff would need to satisfy any existing debts remaining on the Subject Property, post-closing, that Defendant failed to satisfy prior to closing. Moreover, this defense continues to refer to a loan transaction and there was no loan transaction. It is impossible for Plaintiff to breach a loan agreement that does not exist. WHEREFORE, Plaintiff requests the entry of an order striking Defendant, Harry Lamar Nelson’s, Affirmative Defenses to the Complaint for Eviction on the grounds stated in this motion. JIMERSON & COBB, P.A. By: LL CCL Hans C. Wahl Florida Bar No. 0099671 hwahl jimersoncobb.com One Independent Drive Suite 1400 Jacksonville, FL 32202 Telephone: (904) 389-0050 Facsimile: (904) 212-1269 fileclerk jimersoncobb.com Attorneys for Plaintiff CERTIFICATE OF SERVICE I CERTIFY that the foregoing document has been furnished to the below recipients via electronic mail on this 19" day of February, 2016. Allison E, Albert, Esq. Jacksonville Area Legal Aid, Inc. 126 West Adams Street Jacksonville, FL 32202 Allison.albert@jaxlegalaid.org jalaconsumer@jaxlegalaid.org Attorney for Defendant be. COLL Attorney Exhibit “A” “AS IS” Residential Contract For Sale And Purchase ra THIS FORM HAS BEEN APPROVED BY THE FLORIDA REALTORS AND THE FLORIDA BAR ha Realtors” PARTIES: LAMAR HARRY NELSON (Seller5. and TRUST NO 13810 SP or assigns (Buyer. agree that Seller shall sell and Buyer shall buy the tollowing described Real Property and Personal Pro; (collectively “Property’) pursuant to the terms and conditions of this AS 1S Residential Contract For Sale And Purchase and any nders and addenda (‘Contract’): Ww PROPERTY DESCRIPTION: (a) Steet address, city, zip: 13810 SUTTON PARK DR N 839, JACKSONVILLE, FL 32224 (b) Property is located in: DuVv County, Florida. Real Property Tax ID No.: 16734-2085 (c) Real Property: The legal description is 14-3 S-2BE GRAND RESERVE CONDOMINIUM UNIT 839 UNDIV INT 2435 10 COMMON ELEMENT O/R 10552-2156 "i 2 fogether with all existing improvements and fixtures. including builtin appliances, built-in furnishings and attached 6 wall-to-wall car peting and flooring (‘Real Property") unless specifically excluded in Paragraph 1(e) or by other terms 4 of this Contract. 5 () Personal Property: Unless excluded in Paragraph 1(e) or by other terms of this Contract, the following items which 8 are awned by Seller and existing on the Property as of the date of the initial offer are included in the purchase” 7 range(s/oven(s), refrigerator (s), dishwasher(s}, disposal, ceiling fan(s), intercom, light fixture(s), drapery 8 draperies, blinds, window treatments, smoke detect: lor(s), garage door opener(s), security gate and otherrods and access 19 devices, and storm shutterspanets ("1 Personal Property"). ~ Other Personal Property items included in this purchase are: ot Personal Property is included in the Purchase Price, has no contributory value, and shall be left for the Buyer. oe {e) The following items are exciuded from the purchase: a PURCHASE PRICE AND CLOSING PURCHASE PRICE (U.S. currency):.. 20,000.00 a {2) Initial deposit to be held in escrow in the amount of (checks subject to COLLECT .00 The initial deposit made payable and delivered to "Escrow Agent’ named below 2 (CHECK ONE): (i) &] accompanies offer or (ii) DD is to be made within if left blank, then 3) days after Effective Date. IF NEITHER BOX IS CHECKED, THEN OPTION (i) a SHALL BE DEEMED SELECTED. 33° Escrow Agent Information: Name: 33" Address: “ Phone: E-mail: ase Fax: . {0) Additional deposit to be delivered to Escrow Agent within (if left blank, then 70) 26¢ days after Effective Date... a (All deposits paid or agreed to be paid, ere collectively referred to as the *Deposit’ 38" (c) Financing: Express as a dollar amount or percentage ("Loan Amount") see Paragraph 8, 29° {d) Other., {e) Balance to close (not including Buyer's closing costs, prepaids and pProrations) by wire a transfer or other COLLECTED funds. 19,800.00 43 NOTE: For the definition of “COLLECTION” TIME FOR ACCEPTANCE OF OFFER AND COUNTER-OFFERS; or “COLLECTED” see STANDARD S. EFFECTIVE DATE: age (2) I not signed by Buyer and Seller, and an executed copy delivered to alll parties on or before or this offer shall be deemed withdrawn and the Deposit, if any, shall be returned to Buyer. Unless otherwise stated, time for acceptance of any counter-offers shail be within 2 days after the day the aT counter-offer is delivered, (b) The effective date of this Contract shall be the date when th ie last one of the Buyer and Seller has signed or initialed 49 and delivered this offer or final counter-cifer (‘Effective Dat ie"). CLOSING DATE: Unless modified by other provisions of this Contract, the closing of this transaction shall occur and st the closing documents required to be furnished by each party pursuant to this Contract shall be delivered (‘Closing’) on. (‘Closing Date"), at the time established by the Closing Agent. 5. EXTENSION OF CLOSING DATE: {@) If Closing funds from Buyer's lender{s) are not available at time of Closing due to Truth In Lending Act (TILA) notice requirements, Closing shall be extended for such period necessary to satisfy TILA notice requirements. not to exceed 7 . L A rE 582 Cen Ae pps LS ee a ete 553 eee Slee law ee L - BIE POP) Se = COUNTER-OFFER/REJECTION = 555° Gi Sefer counters Buyer's offer (tc accept the counter-offer, Buyer must sign or initial the counter-offered terms and deliver a copy of the acceptance to Seller). Cj Sefer rejects Buyer's offer. THIS IS INTENDED TO 8E A LEGALLY BINDING CONTRACT. IF NOT FULLY UNDERSTOOD, SEEK THE ADVICE OF $59 AN ATTORNEY PRIOR TO SIGNING. THIS FORM HAS BEEN APPROVED BY THE FLORIDA REALTORS AND THE FLORIDA BAR. 583 Approval of this form by the Florida Realtors and The Florida Bar does not constitute an opinion that any of the terms and 362 conditions in this Contract should be accepted by the parties in a particular transaction. Terms and conditions should be negotiated based upon the respective interests, objectives and bargaining positions of all interested persons, Buyers intas Fi Real V0 lordaBarASIS3 Page 10 of 14 Rer's Inibals Rev.9/14 © 2014 Florida Realtors* and The Florida Bar. All rights reserved. KY Scout ortea.50003.1710715. wpe $64 AN ASTERISK (") FOLLOWING A LINE NUMBER IN THE MARGIN INDICATES THE LINE CONTAINS A BLANK TO BE COMPLETEO 567 Buyer. 57D sry wot 672 S73" Buyer: I Date: Ss /, 974 575. s7e Seller: oe i _ Date: J. LE a ST 4p 582 58" Seller. Date: 585 Buyer’s address for purposes of notice Seller's address for purposes of notice ses Ison59@amail.com joeb@ampmenow.com sav" BS soc BROKER: Listing and Cooperating Brokers, if any, named below (collectively, “Broker"), are the only Brokers entitled to a9 compensation in connection with this Contract. Instruction to Closing Agent: Seller and Buyer direct Closing Agent to 392 disburse at Closing the tull amount of the brokerege fees as specified in sepa rate brokerage agreements with the parties 598. and cooperative agreements between the Brokers, excent to the extant Broker fF has retained such fees from the escrowed funds. This Contract shall not modify any MLS or other offer of compen: sation made by Seller or Listing Broker to 595 Cooperating Brokers. o7* NIA NIA $98 Cooperating Sales Associate, if any Listing Sales Associate NIA N/A OT Cooperating Broker, if any Listing Broker 11 of 14 FloridaRealtorsiFloridaBar-ASIS-3 Rev.9/14 62014 Florida Realtors*and The Flonda Bar. A fights reserved. ‘Sariait. O719846001a3.1730215, Exhibit “B rR REALTOR’ NO BROKERAGE RELATIONSHIP NOTICE REALTOR FLORIDA LAW REQUIRES THAT REAL ES TATE LICENSEES WHO RELATIONSHIP HAVE NO BROKERAGE WITH A POTENTIAL SEL LER OR BUYER DISCLOSE THEIR DUTIES TO SELLERS AND BUYERS. As a real estate licensee who has no brokerage relati onship with you, Joseph M. Budetti and or Asset Monetization Partners {insert neme of Real Estate Entity and its Associates) owe to you the following duties: 1. Dealing honestly and fairly: 2, Disclosing all known facts tha it materi ally affect the value of resi dential real prope readily observable fo the BUY! ER; and rty which are not 3. Accounting for all funds entrusted to the licensee, DATE SLsese—7 SIGNATURE DATE NBRN Seesth OL42N7-100143-1615757 4.16.12, Prepon. duarsth Bane | DeOBempepenoeee, w | LHLOGTTTE Hab isimahivins Exhibit “C” Sales costs for: 13810 Sutton Park Dr. N unit 839 eee |Date: 6/3/2015 cane $20,000.0¢ Sale Lease Back Price ($400. 00}, Cash Down Payment to sellerrby! b 2,000}; HOA Foreclosure & n Costs ($4,800): HOA Foreclosure & Lien Costs wae wml 74 Rent. due for June (Si Pre-paid Rent for July (S: le Search }_ 2,912.73), Donovan Heating and Air Lien 98)'COJ Property x Auctior — 123.94) oa orated Property Taxes 1/15 to 6/5/15 —. ——! ($10.50) - ee ($140.00) scumentary Deed Stamp 1Tax ($350.00) ‘orney's Fees Document Preparation otary ry Stamps & Certifies tified Bank Bank Checks ($ 14,757. 25) 7Total Costs paid by bbuyer 1to ‘seller oron behalf of sell seller. $5,242.75 emai g balance du eller -— pi. ween aeamanin son Sia Dita s coal, +e —~ ae Selle nature mw Date: & /: a oe. D pis “Be CL may 741 Cael Fie Mv {Sale lease back price reduced due to long Note: term subsidized rent to tenant. Buyer agrees not to sell the property unless tenant defaults under the terms jof the then current lease agreement. “ply. BUELL Prorat et Heeclae , Raeaf~ Paryrre-F he veple— HOA = 29/ = rer ke ae fa ae