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Filing # 73914192 E-Filed 06/21/2018 02:06:35 PM
IN THE 20™ CIRCUIT COURT IN AND FOR
CHARLOTTE COUNTY, FLORIDA
CASE #2017 CA 000181
IRIS BEAUGRAND, etc.,
Plaintiff,
Vv. DEFENDANT BOB O’TOOLE’S
ANSWER, AFFIRMATIVE DEFENSES
ROBERT O’fOOLE, AND COUNTERCLAIM
Defendant.
Defendant ROBERT O’TOOLE, by and through undersigned counsel, answers the
complaint in this action as follows:
ANSWER
1. The allegations contained in paragraph 1 and 17 of the complaint are admitted for
jurisdictional purposes only.
2. The allegations contained in paragraphs 2, 16 and 22 of the complaint are admitted.
3. The allegations contained in paragraphs 7, 9-13, 15, and 18-21 of the complaint are
denied and strict proof thereof is hereby demanded.
4, With respect to the allegations contained in paragraphs 3 and 4, defendant admits
that the property that is the subject of the lawsuit plaintiff filed against him in this Court
(described in paragraph 2 of the complaint) was purchased by him and that the deed thereto
conveyed title to this property to him in his sole name. Plaintiff has no lawful claim to any
interest in this property as more fully appears herein, Remainder denied.
5. With respect to the allegations contained in paragraph 5 (in which plaintiff alleges
that the property in question is “divisible in kind”), defendant admits that the property may
be so divisible but denies that partition of the property is appropriate. Should the court
nonetheless find that partition may be had, pursuant to Florida Statute §64.061(1) the court
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must refer the case to commissioners to determine the allotment to the lands partitioned in
accordance with the interests therein of the respective parties. Remainder denied.
6. With respect to the allegations contained in paragraph 6 of the complaint defendant
admits that counsel for plaintiff issued a letter to him making certain demands concerning the
disposition of the property that is the subject of this action (and another property described
infra) and that litigation against him would commence should he fail to adhere to these
demands. Remainder denied.
7, With respect to the allegations contained in paragraph 8 (concerning the purported
“loan” by plaintiff's mother to defendant), defendant admits that plaintiff's mother advanced
funds to him in the approximate amount of $45,000 towards his purchase of the property in
question however, she never provided those funds to him directly, as more fully appears herein
and otherwise. Remainder denied.
8, With respect to the allegations contained in paragraph 14 defendant admits that the
property in question is his homestead and that he lives there. Remainder denied.
9. To the extent allegations are deemed to exist within the wherefore clause or prayer
for relief of the complaint, or are otherwise not mentioned in the preceding paragraphs or
otherwise herein, those allegations are denied.
AFFIRMATIVE DEFENSES
10. As an affirmative defense, defendant asserts that plaintiff may not force the sale
of the property in question in this case, to satisfy the purported “note” attached to the
complaint, or otherwise, in that the property is the homestead of defendant exempt from
forced sale under Section 4, Article X of the Constitution of the State of Florida.
11. As an affirmative defense, defendant asserts that plaintiff may not enforce the
purported “note” attached to the complaint as Exhibit A, and may not force the sale of the
property in question in this case to satisfy the “note” as the instrument bears a forged
signature, and the attempt to enforce the same in these proceedings amounts to a criminal
offense of uttering a forged instrument prohibited by Florida Statutes §831.02.
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12. As an affirmative defense, defendant further asserts that the plaintiff may not
lawfully assert any interest in the property in question, purchased by defendant at a “short
sale”, by virtue of the anti-fraud provisions of duly promulgated regulations of the Federal
Housing Finance Agency (FHFA) and 12 U.S.C. Section 4642.
13. As an affirmative defense, defendant further asserts that the plaintiff is
estopped from lawfully asserting any interest in the property in question, purchased by
defendant at a “short sale”, by vittue of the anti-fraud provisions of duly promulgated
regulations of the Federal Housing Finance Agency (FHFA) and 12 U.S.C. Section 4642, and
the fact that plaintiff disclaimed any interest in the property in order to receive a real estate
commission and attested that she would not acquire any interest the property post-closing.
14, As an affirmative defense, defendant further asserts that the plaintiff is
estopped and otherwise may not lawfully assert any interest in the property in question,
purchased by defendant at a “short sale”, by virtue of the anti-fraud provisions of duly
promulgated regulations of the Federal Housing Finance Agency (FHFA) and 12 U.S.C.
Section 4642, and the fact that plaintiff specifically agreed and understood that she would not
be permitted to purchase an interest in the property within 90 days of closing.
15. As an affirmative defense, defendant further asserts that the plaintiff, bearing
superior knowledge and having a position of trust concerning defendant, induced him to
unlawfully execute and deliver to her a quit claim deed to the property in question, in violation
of federal anti-fraud statutes and regulations, in an attempt to defraud defendant and the
United States government in a craven bid to assert an interest therein in these proceedings
through the use of undue influence, over-reaching and false representations.
16. As an affirmative defense, defendant further asserts that the plaintiff, who
presumably seeks equity in this case to force the sale of defendant’s homestead, may not do
so as she has herself has not done equity, coming to this court with unclean hands by, infer
alia, uttering a forged instrament to “foreclose” on a non-existent interest in defendant’s
homestead; violating anti-fraud provisions of federal law and regulations concerning short
sales; over-reaching and abusing a position of trust with respect to defendant; facilitating the
laundering of undeclared currency unlawfully transported into the United States from a foreign
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jurisdiction (Germany); and asserting an interest in the property without having contributed
any consideration for the purchase of the property.
17. As an affirmative defense, defendant further asserts that the deed upon which
plaintiff seeks to foreclose against defendant’s homestead property is void, or, at the very least,
voidable, as a fraud upon defendant and upon the court, having been secured by plaintiff under
false pretenses, overt-reaching, illegality, and fraud.
18. As an affirmative defense, defendant further asserts that the plaintiff in these
proceedings, in effect seeks to “foreclose” against defendant’s homestead to satisfy a debt (as
well as profit from her own wrongdoing) without satisfying the procedural and substantive
requirements of law that would support a mortgage foreclosure action.
19. As an affirmative defense, defendant further asserts that the plaintiff seeks to
enforce rights under the paper attached to the complaint as an action on a note and pseudo
foreclosure on defendant’s house. She is unable to do so as she has not joined the real party
in interest (her mother), has failed to establish any rights as loan servicer under an asserted
Power of Attorney to so act, has failed to allege a claim for which relief in foreclosure can be
granted, and has not meet the pleading requirement for such an action. Russell v. Aurora Loan
Services, 163 So.2d 639 (Fla. 2° DCA 2015); Florida Rule of Civil Procedure 1.110(b).
20. As an affirmative defense, defendant further asserts that the plaintiff has no
cognizable interest in the homestead property she seeks to have this court seize from him as
she paid no consideration for any such interest. To the extent plaintiff did pay anything of
value to acquire or to benefit the property, her interest therein should be reduced accordingly
and/or a credit against such payments provided to her, respectively.
21. As an affirmative defense, defendant further asserts that the forced sale of the
property by the courts is contrary to the best economic interests of defendant and frustrates
investment-backed expectations concerning this property, in contravention of the protected
property rights of the defendant.
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22. As an affirmative defense, defendant further asserts that the property in question
is occupied by defendant as his homestead (after having been dispossessed from the home he
shared with plaintiff) and plaintiff has not established a proper basis or compelling reason to
force the sale of the property to the detriment of defendant, who is the rightful owner of it.
23. As an affirmative defense, defendant further asserts that defendant acquired
title to the property solely in his name with no financial contribution by plaintiff. She
consequently has no present cognizable interest in the property except to the extent that she
contributed any of her own funds towards the acquisition and maintenance of the property.
24, As an affirmative defense, defendant further asserts that plaintiff is not entitled
to seek equitable relief by failing herself to do equity, is estopped from seeking such relief, or
otherwise may not seek such relief by inducing defendant to place her on the title to his
property on the pretense of her love and affection for him, inducing him by the same means
to pay all costs associated with maintaining this property, without any contribution by plaintiff
towards that end, and then by seeking in this action to deprive defendant of his rightful interest
in the property; force the sale of the property; and cause unnecessary loss and expense, all for
the specific intent to cause financial and emotional distress to the defendant.
25. As an affirmative defense, defendant further asserts that it would otherwise be
inequitable for plaintiff to be granted the relief demanded in the complaint.
26. As an affirmative defense, or by way of set-off or counterclaim, defendant further
asserts that plaintiff has made no financial contribution to the acquisition of the property that
is the subject of this action, has made little to no contribution towards the costs of maintaining
the property, has made no contribution towards the management of the property, and
therefore has no right to disbursement of a portion of the proceeds over and above her
contribution, if any, towards the costs and management of the property.
27. For the reasons appearing herein and elsewhere of record, defendant is entitled to
a 100% interest in the property in question, and a determination by the Court as to his allotted
interest in either or both lots comprising the property, a determination as to whether the
property is divisible and, if so, by what manner, for an accounting as to the contribution by
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the parties as to their respective contributions to the acquisition and maintenance of the
property, and resulting percentage interest therein and any credits or debits to which the parties
are entitled or to be assessed, and for an order doing equity and justice as between the patties
with respect to their proper and lawful claims regarding the same.
28. Defendant has retained undersigned counsel to represent him in this cause and to
compensate him in reasonable fashion for his efforts.
29. To the extent these affirmative defenses or answers are deemed to constitute a
set-off or counterclaim, or vice versa, defendant prays they be so treated.
WHEREFORE, defendant ROBERT O’TOOLE prays that the Court deny the relief
as requested by plaintiff as against him and his homestead, except such portion of the relief
deemed just and appropriate; enter judgment against plaintiff concerning whether she is
entitled to partition and, if the court determines partition be had, determine whether the
property is divisible in kind in the manner provided in Florida Statutes §64.061; enter judgment
concerning the respective interests of the parties in the land; enter judgment in his favor and
against plaintiff, either partially or wholly; award to him an amount by way of set-off or by
way of counterclaim in his favor and against plaintiff for the amounts justly due to him; award
to him attorney fees and costs, if appropriate, and otherwise as provided by law; and that the
Court grant such additional and further relief deemed appropriate in the premises.
COUNTERCLAIM
Defendant/Counter-Plaintiff ROBERT O’TOOLE, sues Plaintiff/Counter-
defendant IRIS BEAUGRAND, individually and as attorney in fact under a power of attorney
for HEIDRUN RIEDNER, and alleges as follows:
1 This is an action for equitable and other appropriate relief concerning real
property wherein the amount in controversy exceeds $15,000, exclusive of interests and costs.
2. Counter-Plaintiff ROBERT O’TOOLE (“O”TOOLE”) is the owner of record
of certain real property located in Charlotte County, legally described as follows:
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Lot 1 and Lot2, Block B, Rock Creek Park, according to the plat thereof as
recorded in Plat Book 2, Page 99, Public records of Charlotte County.
a/k/a 808 East 1° Street, Englewood, Florida 34223 (“HOMESTEAD”).
3. Counter-Defendant IRIS BEAUGRAND (“BEAUGRAND”) is listed as
being in title to OTOOLE’s HOMESTEAD and is a resident of Sarasota, Florida.
4. HEIDRUN REIDNER (a German national and non-resident) is
BEAUGRAND’s mother and has appeared in this case through a power of attorney naming
BEAUGRAND as her attorney in fact authorized to appear on her behalf.
5, At all times material hereto BEAUGRAND was and is a duly licensed and
practicing Realtor in the State of Florida and has superior knowledge and experience
concerning real estate transactions as compared to O'TOOLE. She is also knowledgeable
about, and has experience in, mortgage loan transactions superior to that of O'TOOLE.
6 Sometime in approximately 2005 BEAUGRAND and O’TOOLE began a
committed relationship with one another and shortly thereafter began to cohabitate in real
property located at 1855 Bayshore Drive, Englewood, Florida ((BAYSHORE PROPERTY’),
which at that time was owned in fee simple absolute by O'TOOLE and was his homestead.
7, After approximately one year of cohabitating at the BAYSHORE
PROPERTY the couple moved in to the property located at 616 Pinto Trail, Englewood,
Florida “PINTO TRAIL”), owned by BEAUGRAND in fee simple, and continued to so
cohabitate until they separated in the summer of 2016.
8 The parties cohabitated at PINTO TRAIL under an agreement whereby they
would equally divide the PINTO TRAIL housing expenses, including mortgage payments,
taxes, insurance and utilities. Living with them at PINTO TRAIL were the children of
BEAUGRAND, born of a previous relationship.
9 In November, 2007, in consideration of the fact that the couple were in a
committed relationship, and to induce O'TOOLE to move into the PINTO TRIAL home
(and to bear one-half of the expenses related to the property she owned) BEAUGRAND
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induced O’FOOLE to refinance his BAYSHORE PROPERTY under the pretext that this
would lower his monthly payments and produce net rental income from this property that
would, in turn, allow O'TOOLE to fund expenses related to PINTO TRAIL.
10. BEAUGRAND further induced O'TOOLE to deed the BAYSHORE
PROPERTY to her (with both patties listed as joint tenants with rights of survivorship) under
the pretext that this was required in order to finance the loan secured by a mortgage on his
property, with the understanding that she would hold title in trust for the benefit of his lineal
descendants, should he predecease her.
11. By virtue of a warranty deed dated December 18, 2015, recorded on December
21, 2015, OTOOLE purchased what later became his HOMESTEAD. A true and correct
copy of the deed is attached hereto and made a part hereof as EXHIBIT A.
12. O’TOOLE purchased the HOMESTEAD pursuant to a purchase and sale
agreement whereby O'TOOLE was the sole buyer, and James E. Sennello, III and Janice
Sennello, were the sellers of the property. BEAUGRAND acted as a real estate agent in the
transaction and received a commission at closing.
13. At the time of the sale of the HOMESTEAD to O'TOOLE, the property was
subject to a federally-insured mortgage lien held by FEDERAL NATIONAL MORTGAGE
ASSOCIATION and was under the jurisdiction of this Court by way of a pending foreclosure
action, Federal National Mortgage Association v. Sennello, Case #2014 CA 2394 (Porter, J.).
14. Because the HOMESTEAD property was sold to O”TOOLE under terms
resulting in net proceeds less than the amount of the outstanding balance of the federally-
insured loan secured by the mortgage lien on the property, the transaction was governed by
the restrictions of the anti-fraud provisions of duly promulgated regulations of the Federal
Housing Finance Agency (FHFA) and 12 U.S.C. Section 4642, specifically the Amti-Frand in
Connection with Standard Short Sale/ HAFA regulations which provide, in relevant part:
Neither the borrower nor purchaser will receive any funds or commissions
from the sale of the subject mortgage property (emphasis supplied).
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15. BEAUGRAND, as the real estate agent and author of the original purchase
and sale agreement, and representing the best interests of O'TOOLE as buyer in the
transaction, was obliged to amend the agreement so as to remove her as a co-buyer of the
property as to do otherwise would be unlawful under federal law.
16. BEAUGRAND could not lawfully take title to the HOMESTEAD property
either at closing or in any post-closing transaction.
17. BEAUGRAND owed a fiduciary duty to O)TOOLE in the transaction as the
agent representing him as buyer, and due to her superior knowledge and expertise concerning
real estate and mortgage loan transactions, and her position of confidence and trust held as
between herself and him, and upon which he relied.
18. On January 20, 2016, BEAUGRAND prepared a hand-written quit claim deed
of the HOMESTEAD property, witnessed by her daughter, and instructed O’TOOLE to
execute the deed. A true and correct copy of the deed, recorded by her on January 22, 2016,
is attached hereto and made a part hereof as EXHIBIT B.
19. In sworn testimony BEAUGRAND conceded that taking title to the
HOMESTEAD property was unlawful, but that she was advised by her broker that doing so
would be lawful only if she purchased it more than 90 days after the closing.
20. BEAUGRAND paid no consideration for the quit claim deed of the
HOMESTEAD property she extracted from O’TOOLE and contributed no funds of her own
towards the purchase of the HOMESTEAD property by O'TOOLE.
21. BEAUGRAND induced her mother, HEIDRUN REIDNER, to agree to
advance $45,000 towards the $95,000 purchase price of the HOMESTEAD property with the
understanding that OPTOOLE would be responsible for re-paying this loan under repayment
terms that were left vague and ambiguous, and were never clarified.
22. The loan as described in paragraph 21 supra was memorialized, in part, in a
handwritten paper appearing as Exhibit A to the complaint filed by BEAUGRAND, and is
reproduced as an attachment hereto as EXHIBIT C.
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23. O’TOOLE did not sign the document appearing as EXHIBIT C (nor any
other document concerning the Heidrun loan). The marking(s) on the document that purport
to be his signature, as claimed by BEAUGRAND, is a forgery.
24, HEIDRUN REIDNER never delivered the funds directly to O'TOOLE.
Instead, BEAUGRAND, without the consent of OYTOOLE, made deposits in smaller
increments into an account out of which the closing on the HOMESTEAD property was
funded, so as to avoid reporting requirements of the United States Banking System.
25. All conditions precedent to the cause(s) of action asserted in this pleading have
been satisfied or waived.
26. O’TOOLE has retained undersigned counsel to represent him in this cause
and to compensate him in reasonable fashion for his efforts.
COUNT I: QUIET TITLE ACTION
27. O’TOOLE re-alleges and incorporates by reference, as if fully set forth herein,
the preceding paragraphs numbered 1 through 26.
28. This is an action, pursuant to Florida Statute §65.011, e/. seq., to quiet title to
that certain land(s) located in Charlotte County, Florida, identified in these proceedings as
O’TOOLE’s HOMESTEAD, and more fully described in paragraph 2, supra.
29. As mote fully set forth herein and otherwise, O-TOOLE acquired title to his
HOMESTEAD property by purchasing the same from James and Janice Sennello, who
delivered to him a Warranty Deed attached hereto as Exhibit A.
30. BEAUGRAND contributed no funds of her own or other thing of value
towards the purchase of this property, and has no bonafide interest in it.
31. As more fully set forth herein and otherwise, BEAUGRAND was not legally
able to purchase the property or have it conveyed to her inasmuch as to do so would be to
defraud the holder of a federally-insured mortgage loan. BEAUGRAND is furthermore
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estopped from asserting any interest to the HOMESTEAD property based on her
representations as part of the closing on the property that she foreswore any such interest.
32. BEAUGRAND induced O'TOOLE to sign a quit claim deed of the
HOMESTEAD to herself as a joint tenant unlawfully and under the guise that this was a legal
and proper means to do so, despite federal law that prohibited the transfer.
33, O’TOOLE relied upon BEAUGRAND to act in his best interest as part of
the transaction with the Sennellos. BEAUGRAND breached her fiduciary duty towards him
by having him execute an invalid quit claim deed to the property that she then recorded.
34, BEAUGRAND paid no consideration for the quit claim deed in her favor that
she unlawfully induced O’TOOLE to sign.
35. The quit claim deed, appearing as EXHIBIT B is a nullity and void, and is
otherwise invalid and must be stricken.
36. The quit claim deed presents a cloud upon the title to the HOMESTEAD
property legally owned by O’TOOLE, title to which should be vested in him alone.
WHEREFORE, ROBERT O’TOOLE prays that the Court enter judgment in his
favor and against IRIS BEAUGRAND removing any cloud upon the title to the
HOMESTEAD property; quieting title to this property in him to the exclusion of her;
foreclosing any and all claims to this property that have been or may have been asserted by
her (including all persons claiming by, through or under her); and such other relief deemed
appropriate in the premises.
COUNT I: ACTION FOR AN ACCOUNTING
37. O’TOOLE te-alleges and incorporates by reference, as if fully set forth herein,
the preceding paragraphs numbered 1 through 26.
38. This is an action for an accounting for monies and other things of value
invested, collected, and expended in connection with the acquisition, management and
maintenance of real property in which the parties have, or claim to have, a beneficial interest.
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39. As more fully set forth herein, and otherwise, the parties had certain
agreements between them concerning the management of their affairs.
40 Specifically, the parties agreed to refinance the existing debt on O’TOOLE’s
BAYSHORE PROPERTY so as to reduce the monthly payment. As part of this agreement,
O’TOOLE would vacate the BAYSHORE PROPERTY and move into the PINTO TRAIL
property with BEAUGRAND and her children, and then rent his BAYSHORE PROPERTY,
the income from which was to be used to make payments on the refinanced loan and other
carrying costs for the property, such as taxes, insurance and maintenance.
41. The parties further agreed that they would divide equally the carrying costs of
the PINTO TRAIL property, including mortgage payments, taxes, and insurance.
42, Subsequent to moving in with BEAUGRAND at the PINTO TRAIL property
O’TOOLE made all payments for his half of the carrying costs of the property he was
obligated to make pursuant to the agreement of the parties, but BEAUGRAND failed and
refused to pay all of her share of these expenses and costs.
43. From the time the parties moved into the PINTO TRAIL property until the
separation of the parties, OTOOLE advanced most, but not all, of BEAUGRAND’s share
of the carrying costs of that property, so as to prevent a default by BEAUGRAND in her
mortgage payments, termination of utility service, and other bad consequences of her inability
or refusal to abide by her agreement to pay one-half of these costs.
44. With respect to the HOMESTEAD property, the intent of the parties was to
acquire, improve and manage the property as an income property. O’TOOLE invested over
$50,000 in this venture towards the $95,000 purchase price (plus closing costs) with the balance
of $45,000 being made up by a loan from HEIDRUN REIDNER to O’TOOLE.
45. BEAUGRAND invested little to no funds of her own in the acquisition of
what later became O’TOOLE’s HOMESTEAD property.
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46 O’TOOLE continued to invest his own funds in the carrying costs and his
own funds and labor towards the maintenance of the HOMESTEAD property, with little
contribution in either funds or labor by BEAUGRAND.
47. The agreement with respect to the HOMESTEAD property was in the nature
of a joint venture irrespective of the manner in which title to the property was held.
48. As a joint venture in the HOMESTEAD property, the parties are entitled to a
percentage interest in the same, proportionate to their percentage share of investment in the
acquisition of the property, and contribution of resources each made to the carrying costs,
maintenance and other costs associated with the management of this property.
49, BEAUGRAND’S investment in the HOMESTEAD property is de minimus
and her resulting percentage interest in the property is less than 1%.
50. The financial relationship established by the agreement between the parties
terminated with the termination of their personal relationship in the summer of 2016, when
O’TOOLE was obliged to leave the PINTO residence, where he had been living for nearly a
decade. O'TOOLE was unable to return to his previous homestead at the BAYSHORE
PROPERTY and was obliged to take up residence in the HOMESTEAD property.
St. BEAUGRAND has possession and control, to the exclusion of O'TOOLE,
over the books, records and other accounting materials detailing the respective investment of
the parties in the various properties in question, and the expense and receipts each made or
received in connection with their agreement(s) concerning these properties.
52. Both parties are entitled to an accounting concerning the amounts to which
each are or may be entitled to as a consequence of the termination of their agreement(s) and
their respective interests in the properties that are the subject of those agreement(s).
WHEREFORE, ROBERT O’TOOLE prays that the Court enter judgment that an
accounting be had as to: (1) the respective investment of the parties in the various properties
in question, (2) the expense and receipts each made or received in connection with their
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agreement(s) concerning these properties, and (3) the amounts to which each is due as a
consequence of the termination of the agreement(s) between them; that the parties produce
the books and records in their possession or control to effectuate the accounting, or allow
access of the other party to the same in the custody or control of third parties; and such other
relief deemed appropriate in the premises and in connection with the accounting.
COUNT IL: BREACH OF CONTRACT
53. O’TOOLE te-alleges and incorporates by reference, as if fully set forth herein,
the preceding paragraphs numbered 1 through 26.
54. As is more fully set forth herein and otherwise, the parties entered into certain
agreement(s) and understandings concerning the economic relationship between them.
55. Specifically, the parties agreed that neither would claim an interest in the
othet’s property, to wit: the BAYSHORE PROPERTY would continue to remain with
O’TOOLE and the PINTO TRAIL property would remain with BEAUGRAND.
56. The parties further agreed that they would divide equally the carrying costs of
the PINTO TRAIL property, including mortgage payments, taxes, and insurance, while
O’TOOLE remained living there with BEAUGRAND in a committed relationship.
57. BEAUGRAND was unable or unwilling to pay her share of the carrying costs
and other expenses at the PINTO TRAIL home.
58. O’TOOLE made all payments for his half of the carrying costs of the property
he was obligated to make pursuant to the agreement of the parties, but BEAUGRAND failed
and refused to pay all of her share of these expenses and costs.
59. From the time the parties moved into the PINTO TRAIL property until the
separation of the parties, O'TOOLE advanced most, but not all, of BEAUGRAND’s share
of the carrying costs of that property.
60. BEAUGRAND breached the agreement between the parties by failing to
make her share of the payments for the PINTO TRAIL property, causing O'TOOLE to incur
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damages for that breach by making up her share of the payments so as to not place the
property into jeopardy of being lost at foreclosure.
61. BEAUGRAND further breached the agreement between the parties by
claiming an interest in the BAYSHORE PROPERTY owned by O’TOOLE, placed in title in
the names of both parties as a means of facilitating the refinance of the loan secured by a
mortgage lien on the property, and as a means of estate planning to protect the interests of
O’TOOLP’s heirs, entrusted to the care of BEAUGRAND on their behalf.
62. The parties also had an agreement concerning the joint venture with respect
to the HOMESTEAD property whereby they would each contribute a proportionate share of
the costs of acquisition and management of the property, and earn a proportionate share of
the profits, or contribute to the losses, thereof, in accordance with their contributions.
63. BEAUGRAND breached the agreement between the parties by asserting an
interest in the HOMESTEAD property beyond her percentage contribution towards the
acquisition of, and carrying costs of, the property, in violation of their agreement.
64. O'TOOLE was damaged by the breach of the agreement(s) with him by
BEAUGRAND by, infer alia, losses he incurred by unteimbursed money and labor expended
by him in connection with the BAYSHORE PROPERTY, PINTO PROPERTY and his
HOMESTEAD property; losses occasioned by any forced sale of the BAYSHORE
PROPERTY and HOMESTEAD property below market value at the insistence of
BEAUGRAND,; losses occasioned by O'TOOLE from being dispossessed from his
homestead and having to seek shelter elsewhere; and other damages.
WHEREFORE, ROBERT O’TOOLE prays that the Court enter judgment in his
favor and against [RIS BEAUGRAND for all of the damages he has sustained due to the
breach of contract by her; and such other relief deemed appropriate in the premises.
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COUNT IV: PROMISSORY ESTOPPEL
65. O’TOOLE te-alleges and incorporates by reference, as if fully set forth herein,
the preceding paragraphs numbered 1 through 26.
66. As is more fully set forth herein and otherwise, the parties entered into certain
promises and understandings concerning the economic relationship between them.
67. Specifically, BEAUGRAND promised that she would not claim an interest in
O’TOOLE’s property, to wit: the BAYSHORE PROPERTY.
68. BEAUIGRAND further agreed that the parties would divide equally the
carrying costs of the PINTO TRAIL property, including mortgage payments, taxes, and
insurance, while O'TOOLE remained living there with BEAUGRAND in a committed
relationship.
69. BEAUGRAND was unable or unwilling to fulfill her promise to pay her share
of the carrying costs and other expenses at the PINTO TRAIL home.
70. O’TOOLE made all payments for his half of the carrying costs of the property
he was obligated to make pursuant to the promises made by BEAUGRAND, but she failed
and refused to pay all of her share of these expenses and costs.
7h. From the time the parties moved into the PINTO TRAIL property until the
separation of the parties, OTOOLE advanced most, but not all, of BEAUGRAND’s share
of the carrying costs of that property.
72. BEAUGRAND broke her promise to O’TOOLE by failing to make her share
of the payments for the PINTO TRAIL property, causing O'TOOLE to incur damages for
that breach of promise, by making up her share of the payments so as to not place the property
into jeopardy of being lost at foreclosure.
73. BEAUGRAND further breached her promises by claiming an interest in the
BAYSHORE PROPERTY owned by O'TOOLE, placed in title in the names of both parties
as a means of facilitating the refinance of the loan secured by a mortgage lien on the property,
16|?
Beangrand v. O'Toole
Case # 2017 CA 000181
and as a means of estate planning to protect the interests of O-TOOLEP’s heirs, entrusted to
the care of BEAUGRAND on their behalf.
74, BEAUGRAND also made promises with respect to the HOMESTEAD
property whereby the parties would each contribute a proportionate share of the costs of
acquisition and management of the property, and earn a proportionate share of the profits, or
contribute to the losses, thereof.
75. BEAUGRAND breached her promises by asserting an interest in the
HOMESTEAD property beyond her percentage contribution towards the acquisition, and
carrying costs of, the property, in violation of the promises she vowed to keep.
76. O’TOOLE telied upon the false promises made by BEAUGRAND to him,
and changed his position in reliance thereon, to his great detriment.
77. BEAUGRAND is liable to O'TOOLE for the consequences of the false
promises made to him by her, and his reliance on those false promises. She is now estopped
from avoiding responsibility to him for her false promises.
78. O’TOOLE was damaged by his change in position made in reliance upon the
false promises of BEAUGRAND by, in7er alia, losses he incurred by unreimbursed money and
labor expended by him in connection with the BAYSHORE PROPERTY, PINTO
PROPERTY and his HOMESTEAD property; losses occasioned by any forced sale of the
BAYSHORE PROPERTY and HOMESTEAD property below market value at the insistence
of BEAUGRAND; losses occasioned by O'TOOLE from being dispossessed from his
homestead and having to seek shelter elsewhere; and other damages.
WHEREFORE, ROBERT O’TOOLE prays that the Court enter judgment in his
favor and against IRIS BEAUGRAND for all of the damages he has sustained due to the
promissory estoppel imposed against her and in favor of him as a consequence of the false
promises made to him by her; and such other relief deemed appropriate in the premises.
17|?
Beangrand v. O'Toole
Case # 2017 CA 000181
COUNT V: BREACH OF FIDUCIARY DUTY
79, O’TOOLE te-alleges and incorporates by reference, as if fully set forth herein,
the preceding paragraphs numbered 1 through 26.
80. At all times material hereto BEAUGRAND was and is a duly licensed and
practicing Realtor in the State of Florida and has superior knowledge and experience
concerning real estate transactions as compated to O'TOOLE. She is also knowledgeable
about, and has experience in mortgage loan transactions.
81. As set forth herein and otherwise, BEAUGRAND and O’TOOLE had an
intimate relationship with one another which progressed to a committed, long term
relationship that, while not legally a marriage, had many attributes of a legal marriage.
82. The relationship between BEAUGRAND and O'TOOLE constituted a
relationship built on trust with each relying upon the other to protect and defend the interest
of each other as related to them jointly, but also severally.
83. With respect to the BAYSHORE PROPERTY, O’TOOLE telied upon the
position of trust he reposed in BEAUGRAND to hold title to that property as joint tenants
with rights of survivorship such that, were he to predecease her, she would ensure that the
property would be devised to his heirs in accordance with his wishes.
84. With respect to the PINTO TRAIL property O'TOOLE anticipated that
BEAUGRAND would honor their commitment that she would fund her share of the costs
of that property in consideration of his commitment to fund the carrying costs of the
BAYSHORE PROPERTY with each making no claim against the other for any interest in
their respective share of these properties that each owned separately, regardless of the manner
in which the properties were titled of record.
85. With respect to the HOMESTEAD property, BEAUGRAND, as the real
estate agent representing the best interests of OTOOLE as buyer in the transaction, was duty
bound to protect his interest in that property to the exclusion of her own self-interest, and
that as agent for her mother in securing the loan from her that facilitated the purchase.
18|?
Beangrand v. O'Toole
Case # 2017 CA 000181
86. BEAUGRAND owed a fiduciary duty to O'TOOLE in the transaction
concerning the HOMESTEAD property as the agent representing him as buyer, and due to
her superior knowledge and expertise concerning real estate and mortgage loan transactions,
and her position of confidence and trust held as between herself and him.
87. BEAUGRAND, bearing superior knowledge and having a position of trust
concerning O” TOOLE, induced him to unlawfully execute and deliver to her a quit claim
deed to the HOMESTEAD property, in violation of federal anti-fraud statutes and
regulations, in an attempt to defraud him and the United States government in a craven bid to
assert an interest therein in these proceedings through the use of undue influence, over-
reaching and false representations.
88. BEAUGRAND could not lawfully take title to the HOMESTEAD property
either at closing or in the purported quit claim deed attached hereto as EXHIBIT B.
89. BEAUGRAND owed a fiduciary duty to OP TOOLE in this transaction as the
agent representing him as buyer, and due to her superior knowledge and expertise concerning
real estate and mortgage loan transactions, and her position of confidence and trust held as
between herself and him, and upon which he relied.
90. BEAUGRAND breached her fiduciary duties owed to O’TOOLE by, infer alia,
asserting an interest in the BAYSHORE PROPERTY contrary to the agreement between the
patties and the best interest of O'TOOLE and his heirs; refusing to acknowledge the debt
owed to O’TOOLE for his contributions above and beyond his obligations to her for the
maintenance of the PINTO TRAIL property; and asserting an interest in the HOMESTEAD
property in violation of federal law and in contravention of her duties as a licensed real estate
agent and her fiduciary duties owed to OP TOOLE.
91. O’TOOLE was damaged by the breach of fiduciary duty owed to him by
BEAUGRAND by, infer alia, losses he incurred by unreimbursed money and labor expended
by him in connection with the BAYSHORE PROPERTY, PINTO PROPERTY and his
HOMESTEAD property; losses occasioned by any forced sale of the BAYSHORE
PROPERTY and HOMESTEAD property below market value at the insistence of
19 |?
Beangrand v. O'Toole
Case # 2017 CA 000181
BEAUGRAND; losses occasioned by O’TOOLE from being dispossessed from his
homestead and having to seek shelter elsewhere; out of pocket expenses for attorney fees and
other consequences occasioned by her various litigations; and other damages.
WHEREFORE, ROBERT O’FOOLE prays that the Court enter judgment in his
favor and against IRIS BEAUGRAND for all of the damages he has sustained due to her
breach of fiduciary duty owed to him; order the imposition of a resulting or constructive trust
arising as a consequence of title held, partly or wholly by her in properties lawfully belonging
to O'TOOLE; and such other relief deemed appropriate in the premises.
DEMAND FOR JURY TRIAL
Mr. O’Toole respectfully requests a trial by jury on all claims so triable.
IDO HEREBY CERTIFY that a true and correct copy of the foregoing was caused
to be served by electronic mail on June 21, 2018, upon Steele T. Williams, Esquire, STEELE.
T WILLIAMS, PA, attorney for plaintiff, Pineapple Place, 1381 McAnsh Square, Sarasota,
Florida, 34236; Steele’ Williams(@C: ast}
Respectfully submitted,
BRET SHAWN CLARK, PA
PO BOX 1133
Englewood, Florida 34295
Tel: (941) 404-4704
B retClark@WebNetLawyer.Com
[Bret Clark
Bret Clark, Esquire FB #384038
Attorney for Defendant/Counter-Plaintiff
Robert O’ Toole
[EXHIBITS ON FOLLOWING PAGES]
2|P ag ee
Beangrand v. O'Toole
Case # 2017 CA 000181
CBARLOTTE COUNTY CLERK OF CIRCEIT COURT OR BOOK: 4038, PGS: (259 PAGE; 1 OF 2
INSTR # 2403541 Doc Type: D. Recorded: 12/24/2018 at 21 PA
Rec. Fee: RECORDING $18.50 DOCTAX PD 8665.00 Cashier By: ARENB
xs Jby.and return. to:
Charles D. Thomas
te Attorney at Law
Thompson & Thomas, PA.
on, f TROL Indian Road, Ste. 100
‘West Palm Beach, FL 33409
561-651-4150
Fil
Preview
Filing # 73914192 E-Filed 06/21/2018 02:06:35 PM IN THE 20™ CIRCUIT COURT IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE #2017 CA 000181 IRIS BEAUGRAND, etc., Plaintiff, Vv. DEFENDANT BOB O’TOOLE’S ANSWER, AFFIRMATIVE DEFENSES ROBERT O’fOOLE, AND COUNTERCLAIM Defendant. Defendant ROBERT O’TOOLE, by and through undersigned counsel, answers the complaint in this action as follows: ANSWER 1. The allegations contained in paragraph 1 and 17 of the complaint are admitted for jurisdictional purposes only. 2. The allegations contained in paragraphs 2, 16 and 22 of the complaint are admitted. 3. The allegations contained in paragraphs 7, 9-13, 15, and 18-21 of the complaint are denied and strict proof thereof is hereby demanded. 4, With respect to the allegations contained in paragraphs 3 and 4, defendant admits that the property that is the subject of the lawsuit plaintiff filed against him in this Court (described in paragraph 2 of the complaint) was purchased by him and that the deed thereto conveyed title to this property to him in his sole name. Plaintiff has no lawful claim to any interest in this property as more fully appears herein, Remainder denied. 5. With respect to the allegations contained in paragraph 5 (in which plaintiff alleges that the property in question is “divisible in kind”), defendant admits that the property may be so divisible but denies that partition of the property is appropriate. Should the court nonetheless find that partition may be had, pursuant to Florida Statute §64.061(1) the court 1|Page Beangrand v. O'Toole Case # 2017 CA 000181 must refer the case to commissioners to determine the allotment to the lands partitioned in accordance with the interests therein of the respective parties. Remainder denied. 6. With respect to the allegations contained in paragraph 6 of the complaint defendant admits that counsel for plaintiff issued a letter to him making certain demands concerning the disposition of the property that is the subject of this action (and another property described infra) and that litigation against him would commence should he fail to adhere to these demands. Remainder denied. 7, With respect to the allegations contained in paragraph 8 (concerning the purported “loan” by plaintiff's mother to defendant), defendant admits that plaintiff's mother advanced funds to him in the approximate amount of $45,000 towards his purchase of the property in question however, she never provided those funds to him directly, as more fully appears herein and otherwise. Remainder denied. 8, With respect to the allegations contained in paragraph 14 defendant admits that the property in question is his homestead and that he lives there. Remainder denied. 9. To the extent allegations are deemed to exist within the wherefore clause or prayer for relief of the complaint, or are otherwise not mentioned in the preceding paragraphs or otherwise herein, those allegations are denied. AFFIRMATIVE DEFENSES 10. As an affirmative defense, defendant asserts that plaintiff may not force the sale of the property in question in this case, to satisfy the purported “note” attached to the complaint, or otherwise, in that the property is the homestead of defendant exempt from forced sale under Section 4, Article X of the Constitution of the State of Florida. 11. As an affirmative defense, defendant asserts that plaintiff may not enforce the purported “note” attached to the complaint as Exhibit A, and may not force the sale of the property in question in this case to satisfy the “note” as the instrument bears a forged signature, and the attempt to enforce the same in these proceedings amounts to a criminal offense of uttering a forged instrument prohibited by Florida Statutes §831.02. 2|Pa Beangrand v. O'Toole Case # 2017 CA 000181 12. As an affirmative defense, defendant further asserts that the plaintiff may not lawfully assert any interest in the property in question, purchased by defendant at a “short sale”, by virtue of the anti-fraud provisions of duly promulgated regulations of the Federal Housing Finance Agency (FHFA) and 12 U.S.C. Section 4642. 13. As an affirmative defense, defendant further asserts that the plaintiff is estopped from lawfully asserting any interest in the property in question, purchased by defendant at a “short sale”, by vittue of the anti-fraud provisions of duly promulgated regulations of the Federal Housing Finance Agency (FHFA) and 12 U.S.C. Section 4642, and the fact that plaintiff disclaimed any interest in the property in order to receive a real estate commission and attested that she would not acquire any interest the property post-closing. 14, As an affirmative defense, defendant further asserts that the plaintiff is estopped and otherwise may not lawfully assert any interest in the property in question, purchased by defendant at a “short sale”, by virtue of the anti-fraud provisions of duly promulgated regulations of the Federal Housing Finance Agency (FHFA) and 12 U.S.C. Section 4642, and the fact that plaintiff specifically agreed and understood that she would not be permitted to purchase an interest in the property within 90 days of closing. 15. As an affirmative defense, defendant further asserts that the plaintiff, bearing superior knowledge and having a position of trust concerning defendant, induced him to unlawfully execute and deliver to her a quit claim deed to the property in question, in violation of federal anti-fraud statutes and regulations, in an attempt to defraud defendant and the United States government in a craven bid to assert an interest therein in these proceedings through the use of undue influence, over-reaching and false representations. 16. As an affirmative defense, defendant further asserts that the plaintiff, who presumably seeks equity in this case to force the sale of defendant’s homestead, may not do so as she has herself has not done equity, coming to this court with unclean hands by, infer alia, uttering a forged instrament to “foreclose” on a non-existent interest in defendant’s homestead; violating anti-fraud provisions of federal law and regulations concerning short sales; over-reaching and abusing a position of trust with respect to defendant; facilitating the laundering of undeclared currency unlawfully transported into the United States from a foreign 3|Page Beangrand v. O'Toole Case # 2017 CA 000181 jurisdiction (Germany); and asserting an interest in the property without having contributed any consideration for the purchase of the property. 17. As an affirmative defense, defendant further asserts that the deed upon which plaintiff seeks to foreclose against defendant’s homestead property is void, or, at the very least, voidable, as a fraud upon defendant and upon the court, having been secured by plaintiff under false pretenses, overt-reaching, illegality, and fraud. 18. As an affirmative defense, defendant further asserts that the plaintiff in these proceedings, in effect seeks to “foreclose” against defendant’s homestead to satisfy a debt (as well as profit from her own wrongdoing) without satisfying the procedural and substantive requirements of law that would support a mortgage foreclosure action. 19. As an affirmative defense, defendant further asserts that the plaintiff seeks to enforce rights under the paper attached to the complaint as an action on a note and pseudo foreclosure on defendant’s house. She is unable to do so as she has not joined the real party in interest (her mother), has failed to establish any rights as loan servicer under an asserted Power of Attorney to so act, has failed to allege a claim for which relief in foreclosure can be granted, and has not meet the pleading requirement for such an action. Russell v. Aurora Loan Services, 163 So.2d 639 (Fla. 2° DCA 2015); Florida Rule of Civil Procedure 1.110(b). 20. As an affirmative defense, defendant further asserts that the plaintiff has no cognizable interest in the homestead property she seeks to have this court seize from him as she paid no consideration for any such interest. To the extent plaintiff did pay anything of value to acquire or to benefit the property, her interest therein should be reduced accordingly and/or a credit against such payments provided to her, respectively. 21. As an affirmative defense, defendant further asserts that the forced sale of the property by the courts is contrary to the best economic interests of defendant and frustrates investment-backed expectations concerning this property, in contravention of the protected property rights of the defendant. 4|Page Beangrand v. O'Toole Case # 2017 CA 000181 22. As an affirmative defense, defendant further asserts that the property in question is occupied by defendant as his homestead (after having been dispossessed from the home he shared with plaintiff) and plaintiff has not established a proper basis or compelling reason to force the sale of the property to the detriment of defendant, who is the rightful owner of it. 23. As an affirmative defense, defendant further asserts that defendant acquired title to the property solely in his name with no financial contribution by plaintiff. She consequently has no present cognizable interest in the property except to the extent that she contributed any of her own funds towards the acquisition and maintenance of the property. 24, As an affirmative defense, defendant further asserts that plaintiff is not entitled to seek equitable relief by failing herself to do equity, is estopped from seeking such relief, or otherwise may not seek such relief by inducing defendant to place her on the title to his property on the pretense of her love and affection for him, inducing him by the same means to pay all costs associated with maintaining this property, without any contribution by plaintiff towards that end, and then by seeking in this action to deprive defendant of his rightful interest in the property; force the sale of the property; and cause unnecessary loss and expense, all for the specific intent to cause financial and emotional distress to the defendant. 25. As an affirmative defense, defendant further asserts that it would otherwise be inequitable for plaintiff to be granted the relief demanded in the complaint. 26. As an affirmative defense, or by way of set-off or counterclaim, defendant further asserts that plaintiff has made no financial contribution to the acquisition of the property that is the subject of this action, has made little to no contribution towards the costs of maintaining the property, has made no contribution towards the management of the property, and therefore has no right to disbursement of a portion of the proceeds over and above her contribution, if any, towards the costs and management of the property. 27. For the reasons appearing herein and elsewhere of record, defendant is entitled to a 100% interest in the property in question, and a determination by the Court as to his allotted interest in either or both lots comprising the property, a determination as to whether the property is divisible and, if so, by what manner, for an accounting as to the contribution by 5|P ze Beangrand v. O'Toole Case # 2017 CA 000181 the parties as to their respective contributions to the acquisition and maintenance of the property, and resulting percentage interest therein and any credits or debits to which the parties are entitled or to be assessed, and for an order doing equity and justice as between the patties with respect to their proper and lawful claims regarding the same. 28. Defendant has retained undersigned counsel to represent him in this cause and to compensate him in reasonable fashion for his efforts. 29. To the extent these affirmative defenses or answers are deemed to constitute a set-off or counterclaim, or vice versa, defendant prays they be so treated. WHEREFORE, defendant ROBERT O’TOOLE prays that the Court deny the relief as requested by plaintiff as against him and his homestead, except such portion of the relief deemed just and appropriate; enter judgment against plaintiff concerning whether she is entitled to partition and, if the court determines partition be had, determine whether the property is divisible in kind in the manner provided in Florida Statutes §64.061; enter judgment concerning the respective interests of the parties in the land; enter judgment in his favor and against plaintiff, either partially or wholly; award to him an amount by way of set-off or by way of counterclaim in his favor and against plaintiff for the amounts justly due to him; award to him attorney fees and costs, if appropriate, and otherwise as provided by law; and that the Court grant such additional and further relief deemed appropriate in the premises. COUNTERCLAIM Defendant/Counter-Plaintiff ROBERT O’TOOLE, sues Plaintiff/Counter- defendant IRIS BEAUGRAND, individually and as attorney in fact under a power of attorney for HEIDRUN RIEDNER, and alleges as follows: 1 This is an action for equitable and other appropriate relief concerning real property wherein the amount in controversy exceeds $15,000, exclusive of interests and costs. 2. Counter-Plaintiff ROBERT O’TOOLE (“O”TOOLE”) is the owner of record of certain real property located in Charlotte County, legally described as follows: 6|Page Beangrand v. O'Toole Case # 2017 CA 000181 Lot 1 and Lot2, Block B, Rock Creek Park, according to the plat thereof as recorded in Plat Book 2, Page 99, Public records of Charlotte County. a/k/a 808 East 1° Street, Englewood, Florida 34223 (“HOMESTEAD”). 3. Counter-Defendant IRIS BEAUGRAND (“BEAUGRAND”) is listed as being in title to OTOOLE’s HOMESTEAD and is a resident of Sarasota, Florida. 4. HEIDRUN REIDNER (a German national and non-resident) is BEAUGRAND’s mother and has appeared in this case through a power of attorney naming BEAUGRAND as her attorney in fact authorized to appear on her behalf. 5, At all times material hereto BEAUGRAND was and is a duly licensed and practicing Realtor in the State of Florida and has superior knowledge and experience concerning real estate transactions as compared to O'TOOLE. She is also knowledgeable about, and has experience in, mortgage loan transactions superior to that of O'TOOLE. 6 Sometime in approximately 2005 BEAUGRAND and O’TOOLE began a committed relationship with one another and shortly thereafter began to cohabitate in real property located at 1855 Bayshore Drive, Englewood, Florida ((BAYSHORE PROPERTY’), which at that time was owned in fee simple absolute by O'TOOLE and was his homestead. 7, After approximately one year of cohabitating at the BAYSHORE PROPERTY the couple moved in to the property located at 616 Pinto Trail, Englewood, Florida “PINTO TRAIL”), owned by BEAUGRAND in fee simple, and continued to so cohabitate until they separated in the summer of 2016. 8 The parties cohabitated at PINTO TRAIL under an agreement whereby they would equally divide the PINTO TRAIL housing expenses, including mortgage payments, taxes, insurance and utilities. Living with them at PINTO TRAIL were the children of BEAUGRAND, born of a previous relationship. 9 In November, 2007, in consideration of the fact that the couple were in a committed relationship, and to induce O'TOOLE to move into the PINTO TRIAL home (and to bear one-half of the expenses related to the property she owned) BEAUGRAND T|Page Beangrand v. O'Toole Case # 2017 CA 000181 induced O’FOOLE to refinance his BAYSHORE PROPERTY under the pretext that this would lower his monthly payments and produce net rental income from this property that would, in turn, allow O'TOOLE to fund expenses related to PINTO TRAIL. 10. BEAUGRAND further induced O'TOOLE to deed the BAYSHORE PROPERTY to her (with both patties listed as joint tenants with rights of survivorship) under the pretext that this was required in order to finance the loan secured by a mortgage on his property, with the understanding that she would hold title in trust for the benefit of his lineal descendants, should he predecease her. 11. By virtue of a warranty deed dated December 18, 2015, recorded on December 21, 2015, OTOOLE purchased what later became his HOMESTEAD. A true and correct copy of the deed is attached hereto and made a part hereof as EXHIBIT A. 12. O’TOOLE purchased the HOMESTEAD pursuant to a purchase and sale agreement whereby O'TOOLE was the sole buyer, and James E. Sennello, III and Janice Sennello, were the sellers of the property. BEAUGRAND acted as a real estate agent in the transaction and received a commission at closing. 13. At the time of the sale of the HOMESTEAD to O'TOOLE, the property was subject to a federally-insured mortgage lien held by FEDERAL NATIONAL MORTGAGE ASSOCIATION and was under the jurisdiction of this Court by way of a pending foreclosure action, Federal National Mortgage Association v. Sennello, Case #2014 CA 2394 (Porter, J.). 14. Because the HOMESTEAD property was sold to O”TOOLE under terms resulting in net proceeds less than the amount of the outstanding balance of the federally- insured loan secured by the mortgage lien on the property, the transaction was governed by the restrictions of the anti-fraud provisions of duly promulgated regulations of the Federal Housing Finance Agency (FHFA) and 12 U.S.C. Section 4642, specifically the Amti-Frand in Connection with Standard Short Sale/ HAFA regulations which provide, in relevant part: Neither the borrower nor purchaser will receive any funds or commissions from the sale of the subject mortgage property (emphasis supplied). 8|Page Beangrand v. O'Toole Case # 2017 CA 000181 15. BEAUGRAND, as the real estate agent and author of the original purchase and sale agreement, and representing the best interests of O'TOOLE as buyer in the transaction, was obliged to amend the agreement so as to remove her as a co-buyer of the property as to do otherwise would be unlawful under federal law. 16. BEAUGRAND could not lawfully take title to the HOMESTEAD property either at closing or in any post-closing transaction. 17. BEAUGRAND owed a fiduciary duty to O)TOOLE in the transaction as the agent representing him as buyer, and due to her superior knowledge and expertise concerning real estate and mortgage loan transactions, and her position of confidence and trust held as between herself and him, and upon which he relied. 18. On January 20, 2016, BEAUGRAND prepared a hand-written quit claim deed of the HOMESTEAD property, witnessed by her daughter, and instructed O’TOOLE to execute the deed. A true and correct copy of the deed, recorded by her on January 22, 2016, is attached hereto and made a part hereof as EXHIBIT B. 19. In sworn testimony BEAUGRAND conceded that taking title to the HOMESTEAD property was unlawful, but that she was advised by her broker that doing so would be lawful only if she purchased it more than 90 days after the closing. 20. BEAUGRAND paid no consideration for the quit claim deed of the HOMESTEAD property she extracted from O’TOOLE and contributed no funds of her own towards the purchase of the HOMESTEAD property by O'TOOLE. 21. BEAUGRAND induced her mother, HEIDRUN REIDNER, to agree to advance $45,000 towards the $95,000 purchase price of the HOMESTEAD property with the understanding that OPTOOLE would be responsible for re-paying this loan under repayment terms that were left vague and ambiguous, and were never clarified. 22. The loan as described in paragraph 21 supra was memorialized, in part, in a handwritten paper appearing as Exhibit A to the complaint filed by BEAUGRAND, and is reproduced as an attachment hereto as EXHIBIT C. 9|Page Beangrand v. O'Toole Case # 2017 CA 000181 23. O’TOOLE did not sign the document appearing as EXHIBIT C (nor any other document concerning the Heidrun loan). The marking(s) on the document that purport to be his signature, as claimed by BEAUGRAND, is a forgery. 24, HEIDRUN REIDNER never delivered the funds directly to O'TOOLE. Instead, BEAUGRAND, without the consent of OYTOOLE, made deposits in smaller increments into an account out of which the closing on the HOMESTEAD property was funded, so as to avoid reporting requirements of the United States Banking System. 25. All conditions precedent to the cause(s) of action asserted in this pleading have been satisfied or waived. 26. O’TOOLE has retained undersigned counsel to represent him in this cause and to compensate him in reasonable fashion for his efforts. COUNT I: QUIET TITLE ACTION 27. O’TOOLE re-alleges and incorporates by reference, as if fully set forth herein, the preceding paragraphs numbered 1 through 26. 28. This is an action, pursuant to Florida Statute §65.011, e/. seq., to quiet title to that certain land(s) located in Charlotte County, Florida, identified in these proceedings as O’TOOLE’s HOMESTEAD, and more fully described in paragraph 2, supra. 29. As mote fully set forth herein and otherwise, O-TOOLE acquired title to his HOMESTEAD property by purchasing the same from James and Janice Sennello, who delivered to him a Warranty Deed attached hereto as Exhibit A. 30. BEAUGRAND contributed no funds of her own or other thing of value towards the purchase of this property, and has no bonafide interest in it. 31. As more fully set forth herein and otherwise, BEAUGRAND was not legally able to purchase the property or have it conveyed to her inasmuch as to do so would be to defraud the holder of a federally-insured mortgage loan. BEAUGRAND is furthermore 10|? Beangrand v. O'Toole Case # 2017 CA 000181 estopped from asserting any interest to the HOMESTEAD property based on her representations as part of the closing on the property that she foreswore any such interest. 32. BEAUGRAND induced O'TOOLE to sign a quit claim deed of the HOMESTEAD to herself as a joint tenant unlawfully and under the guise that this was a legal and proper means to do so, despite federal law that prohibited the transfer. 33, O’TOOLE relied upon BEAUGRAND to act in his best interest as part of the transaction with the Sennellos. BEAUGRAND breached her fiduciary duty towards him by having him execute an invalid quit claim deed to the property that she then recorded. 34, BEAUGRAND paid no consideration for the quit claim deed in her favor that she unlawfully induced O’TOOLE to sign. 35. The quit claim deed, appearing as EXHIBIT B is a nullity and void, and is otherwise invalid and must be stricken. 36. The quit claim deed presents a cloud upon the title to the HOMESTEAD property legally owned by O’TOOLE, title to which should be vested in him alone. WHEREFORE, ROBERT O’TOOLE prays that the Court enter judgment in his favor and against IRIS BEAUGRAND removing any cloud upon the title to the HOMESTEAD property; quieting title to this property in him to the exclusion of her; foreclosing any and all claims to this property that have been or may have been asserted by her (including all persons claiming by, through or under her); and such other relief deemed appropriate in the premises. COUNT I: ACTION FOR AN ACCOUNTING 37. O’TOOLE te-alleges and incorporates by reference, as if fully set forth herein, the preceding paragraphs numbered 1 through 26. 38. This is an action for an accounting for monies and other things of value invested, collected, and expended in connection with the acquisition, management and maintenance of real property in which the parties have, or claim to have, a beneficial interest. |? Beangrand v. O'Toole Case # 2017 CA 000181 39. As more fully set forth herein, and otherwise, the parties had certain agreements between them concerning the management of their affairs. 40 Specifically, the parties agreed to refinance the existing debt on O’TOOLE’s BAYSHORE PROPERTY so as to reduce the monthly payment. As part of this agreement, O’TOOLE would vacate the BAYSHORE PROPERTY and move into the PINTO TRAIL property with BEAUGRAND and her children, and then rent his BAYSHORE PROPERTY, the income from which was to be used to make payments on the refinanced loan and other carrying costs for the property, such as taxes, insurance and maintenance. 41. The parties further agreed that they would divide equally the carrying costs of the PINTO TRAIL property, including mortgage payments, taxes, and insurance. 42, Subsequent to moving in with BEAUGRAND at the PINTO TRAIL property O’TOOLE made all payments for his half of the carrying costs of the property he was obligated to make pursuant to the agreement of the parties, but BEAUGRAND failed and refused to pay all of her share of these expenses and costs. 43. From the time the parties moved into the PINTO TRAIL property until the separation of the parties, OTOOLE advanced most, but not all, of BEAUGRAND’s share of the carrying costs of that property, so as to prevent a default by BEAUGRAND in her mortgage payments, termination of utility service, and other bad consequences of her inability or refusal to abide by her agreement to pay one-half of these costs. 44. With respect to the HOMESTEAD property, the intent of the parties was to acquire, improve and manage the property as an income property. O’TOOLE invested over $50,000 in this venture towards the $95,000 purchase price (plus closing costs) with the balance of $45,000 being made up by a loan from HEIDRUN REIDNER to O’TOOLE. 45. BEAUGRAND invested little to no funds of her own in the acquisition of what later became O’TOOLE’s HOMESTEAD property. 12|P Beangrand v. O'Toole Case # 2017 CA 000181 46 O’TOOLE continued to invest his own funds in the carrying costs and his own funds and labor towards the maintenance of the HOMESTEAD property, with little contribution in either funds or labor by BEAUGRAND. 47. The agreement with respect to the HOMESTEAD property was in the nature of a joint venture irrespective of the manner in which title to the property was held. 48. As a joint venture in the HOMESTEAD property, the parties are entitled to a percentage interest in the same, proportionate to their percentage share of investment in the acquisition of the property, and contribution of resources each made to the carrying costs, maintenance and other costs associated with the management of this property. 49, BEAUGRAND’S investment in the HOMESTEAD property is de minimus and her resulting percentage interest in the property is less than 1%. 50. The financial relationship established by the agreement between the parties terminated with the termination of their personal relationship in the summer of 2016, when O’TOOLE was obliged to leave the PINTO residence, where he had been living for nearly a decade. O'TOOLE was unable to return to his previous homestead at the BAYSHORE PROPERTY and was obliged to take up residence in the HOMESTEAD property. St. BEAUGRAND has possession and control, to the exclusion of O'TOOLE, over the books, records and other accounting materials detailing the respective investment of the parties in the various properties in question, and the expense and receipts each made or received in connection with their agreement(s) concerning these properties. 52. Both parties are entitled to an accounting concerning the amounts to which each are or may be entitled to as a consequence of the termination of their agreement(s) and their respective interests in the properties that are the subject of those agreement(s). WHEREFORE, ROBERT O’TOOLE prays that the Court enter judgment that an accounting be had as to: (1) the respective investment of the parties in the various properties in question, (2) the expense and receipts each made or received in connection with their B|P Beangrand v. O'Toole Case # 2017 CA 000181 agreement(s) concerning these properties, and (3) the amounts to which each is due as a consequence of the termination of the agreement(s) between them; that the parties produce the books and records in their possession or control to effectuate the accounting, or allow access of the other party to the same in the custody or control of third parties; and such other relief deemed appropriate in the premises and in connection with the accounting. COUNT IL: BREACH OF CONTRACT 53. O’TOOLE te-alleges and incorporates by reference, as if fully set forth herein, the preceding paragraphs numbered 1 through 26. 54. As is more fully set forth herein and otherwise, the parties entered into certain agreement(s) and understandings concerning the economic relationship between them. 55. Specifically, the parties agreed that neither would claim an interest in the othet’s property, to wit: the BAYSHORE PROPERTY would continue to remain with O’TOOLE and the PINTO TRAIL property would remain with BEAUGRAND. 56. The parties further agreed that they would divide equally the carrying costs of the PINTO TRAIL property, including mortgage payments, taxes, and insurance, while O’TOOLE remained living there with BEAUGRAND in a committed relationship. 57. BEAUGRAND was unable or unwilling to pay her share of the carrying costs and other expenses at the PINTO TRAIL home. 58. O’TOOLE made all payments for his half of the carrying costs of the property he was obligated to make pursuant to the agreement of the parties, but BEAUGRAND failed and refused to pay all of her share of these expenses and costs. 59. From the time the parties moved into the PINTO TRAIL property until the separation of the parties, O'TOOLE advanced most, but not all, of BEAUGRAND’s share of the carrying costs of that property. 60. BEAUGRAND breached the agreement between the parties by failing to make her share of the payments for the PINTO TRAIL property, causing O'TOOLE to incur 14|? Beangrand v. O'Toole Case # 2017 CA 000181 damages for that breach by making up her share of the payments so as to not place the property into jeopardy of being lost at foreclosure. 61. BEAUGRAND further breached the agreement between the parties by claiming an interest in the BAYSHORE PROPERTY owned by O’TOOLE, placed in title in the names of both parties as a means of facilitating the refinance of the loan secured by a mortgage lien on the property, and as a means of estate planning to protect the interests of O’TOOLP’s heirs, entrusted to the care of BEAUGRAND on their behalf. 62. The parties also had an agreement concerning the joint venture with respect to the HOMESTEAD property whereby they would each contribute a proportionate share of the costs of acquisition and management of the property, and earn a proportionate share of the profits, or contribute to the losses, thereof, in accordance with their contributions. 63. BEAUGRAND breached the agreement between the parties by asserting an interest in the HOMESTEAD property beyond her percentage contribution towards the acquisition of, and carrying costs of, the property, in violation of their agreement. 64. O'TOOLE was damaged by the breach of the agreement(s) with him by BEAUGRAND by, infer alia, losses he incurred by unteimbursed money and labor expended by him in connection with the BAYSHORE PROPERTY, PINTO PROPERTY and his HOMESTEAD property; losses occasioned by any forced sale of the BAYSHORE PROPERTY and HOMESTEAD property below market value at the insistence of BEAUGRAND,; losses occasioned by O'TOOLE from being dispossessed from his homestead and having to seek shelter elsewhere; and other damages. WHEREFORE, ROBERT O’TOOLE prays that the Court enter judgment in his favor and against [RIS BEAUGRAND for all of the damages he has sustained due to the breach of contract by her; and such other relief deemed appropriate in the premises. 15|? Beangrand v. O'Toole Case # 2017 CA 000181 COUNT IV: PROMISSORY ESTOPPEL 65. O’TOOLE te-alleges and incorporates by reference, as if fully set forth herein, the preceding paragraphs numbered 1 through 26. 66. As is more fully set forth herein and otherwise, the parties entered into certain promises and understandings concerning the economic relationship between them. 67. Specifically, BEAUGRAND promised that she would not claim an interest in O’TOOLE’s property, to wit: the BAYSHORE PROPERTY. 68. BEAUIGRAND further agreed that the parties would divide equally the carrying costs of the PINTO TRAIL property, including mortgage payments, taxes, and insurance, while O'TOOLE remained living there with BEAUGRAND in a committed relationship. 69. BEAUGRAND was unable or unwilling to fulfill her promise to pay her share of the carrying costs and other expenses at the PINTO TRAIL home. 70. O’TOOLE made all payments for his half of the carrying costs of the property he was obligated to make pursuant to the promises made by BEAUGRAND, but she failed and refused to pay all of her share of these expenses and costs. 7h. From the time the parties moved into the PINTO TRAIL property until the separation of the parties, OTOOLE advanced most, but not all, of BEAUGRAND’s share of the carrying costs of that property. 72. BEAUGRAND broke her promise to O’TOOLE by failing to make her share of the payments for the PINTO TRAIL property, causing O'TOOLE to incur damages for that breach of promise, by making up her share of the payments so as to not place the property into jeopardy of being lost at foreclosure. 73. BEAUGRAND further breached her promises by claiming an interest in the BAYSHORE PROPERTY owned by O'TOOLE, placed in title in the names of both parties as a means of facilitating the refinance of the loan secured by a mortgage lien on the property, 16|? Beangrand v. O'Toole Case # 2017 CA 000181 and as a means of estate planning to protect the interests of O-TOOLEP’s heirs, entrusted to the care of BEAUGRAND on their behalf. 74, BEAUGRAND also made promises with respect to the HOMESTEAD property whereby the parties would each contribute a proportionate share of the costs of acquisition and management of the property, and earn a proportionate share of the profits, or contribute to the losses, thereof. 75. BEAUGRAND breached her promises by asserting an interest in the HOMESTEAD property beyond her percentage contribution towards the acquisition, and carrying costs of, the property, in violation of the promises she vowed to keep. 76. O’TOOLE telied upon the false promises made by BEAUGRAND to him, and changed his position in reliance thereon, to his great detriment. 77. BEAUGRAND is liable to O'TOOLE for the consequences of the false promises made to him by her, and his reliance on those false promises. She is now estopped from avoiding responsibility to him for her false promises. 78. O’TOOLE was damaged by his change in position made in reliance upon the false promises of BEAUGRAND by, in7er alia, losses he incurred by unreimbursed money and labor expended by him in connection with the BAYSHORE PROPERTY, PINTO PROPERTY and his HOMESTEAD property; losses occasioned by any forced sale of the BAYSHORE PROPERTY and HOMESTEAD property below market value at the insistence of BEAUGRAND; losses occasioned by O'TOOLE from being dispossessed from his homestead and having to seek shelter elsewhere; and other damages. WHEREFORE, ROBERT O’TOOLE prays that the Court enter judgment in his favor and against IRIS BEAUGRAND for all of the damages he has sustained due to the promissory estoppel imposed against her and in favor of him as a consequence of the false promises made to him by her; and such other relief deemed appropriate in the premises. 17|? Beangrand v. O'Toole Case # 2017 CA 000181 COUNT V: BREACH OF FIDUCIARY DUTY 79, O’TOOLE te-alleges and incorporates by reference, as if fully set forth herein, the preceding paragraphs numbered 1 through 26. 80. At all times material hereto BEAUGRAND was and is a duly licensed and practicing Realtor in the State of Florida and has superior knowledge and experience concerning real estate transactions as compated to O'TOOLE. She is also knowledgeable about, and has experience in mortgage loan transactions. 81. As set forth herein and otherwise, BEAUGRAND and O’TOOLE had an intimate relationship with one another which progressed to a committed, long term relationship that, while not legally a marriage, had many attributes of a legal marriage. 82. The relationship between BEAUGRAND and O'TOOLE constituted a relationship built on trust with each relying upon the other to protect and defend the interest of each other as related to them jointly, but also severally. 83. With respect to the BAYSHORE PROPERTY, O’TOOLE telied upon the position of trust he reposed in BEAUGRAND to hold title to that property as joint tenants with rights of survivorship such that, were he to predecease her, she would ensure that the property would be devised to his heirs in accordance with his wishes. 84. With respect to the PINTO TRAIL property O'TOOLE anticipated that BEAUGRAND would honor their commitment that she would fund her share of the costs of that property in consideration of his commitment to fund the carrying costs of the BAYSHORE PROPERTY with each making no claim against the other for any interest in their respective share of these properties that each owned separately, regardless of the manner in which the properties were titled of record. 85. With respect to the HOMESTEAD property, BEAUGRAND, as the real estate agent representing the best interests of OTOOLE as buyer in the transaction, was duty bound to protect his interest in that property to the exclusion of her own self-interest, and that as agent for her mother in securing the loan from her that facilitated the purchase. 18|? Beangrand v. O'Toole Case # 2017 CA 000181 86. BEAUGRAND owed a fiduciary duty to O'TOOLE in the transaction concerning the HOMESTEAD property as the agent representing him as buyer, and due to her superior knowledge and expertise concerning real estate and mortgage loan transactions, and her position of confidence and trust held as between herself and him. 87. BEAUGRAND, bearing superior knowledge and having a position of trust concerning O” TOOLE, induced him to unlawfully execute and deliver to her a quit claim deed to the HOMESTEAD property, in violation of federal anti-fraud statutes and regulations, in an attempt to defraud him and the United States government in a craven bid to assert an interest therein in these proceedings through the use of undue influence, over- reaching and false representations. 88. BEAUGRAND could not lawfully take title to the HOMESTEAD property either at closing or in the purported quit claim deed attached hereto as EXHIBIT B. 89. BEAUGRAND owed a fiduciary duty to OP TOOLE in this transaction as the agent representing him as buyer, and due to her superior knowledge and expertise concerning real estate and mortgage loan transactions, and her position of confidence and trust held as between herself and him, and upon which he relied. 90. BEAUGRAND breached her fiduciary duties owed to O’TOOLE by, infer alia, asserting an interest in the BAYSHORE PROPERTY contrary to the agreement between the patties and the best interest of O'TOOLE and his heirs; refusing to acknowledge the debt owed to O’TOOLE for his contributions above and beyond his obligations to her for the maintenance of the PINTO TRAIL property; and asserting an interest in the HOMESTEAD property in violation of federal law and in contravention of her duties as a licensed real estate agent and her fiduciary duties owed to OP TOOLE. 91. O’TOOLE was damaged by the breach of fiduciary duty owed to him by BEAUGRAND by, infer alia, losses he incurred by unreimbursed money and labor expended by him in connection with the BAYSHORE PROPERTY, PINTO PROPERTY and his HOMESTEAD property; losses occasioned by any forced sale of the BAYSHORE PROPERTY and HOMESTEAD property below market value at the insistence of 19 |? Beangrand v. O'Toole Case # 2017 CA 000181 BEAUGRAND; losses occasioned by O’TOOLE from being dispossessed from his homestead and having to seek shelter elsewhere; out of pocket expenses for attorney fees and other consequences occasioned by her various litigations; and other damages. WHEREFORE, ROBERT O’FOOLE prays that the Court enter judgment in his favor and against IRIS BEAUGRAND for all of the damages he has sustained due to her breach of fiduciary duty owed to him; order the imposition of a resulting or constructive trust arising as a consequence of title held, partly or wholly by her in properties lawfully belonging to O'TOOLE; and such other relief deemed appropriate in the premises. DEMAND FOR JURY TRIAL Mr. O’Toole respectfully requests a trial by jury on all claims so triable. IDO HEREBY CERTIFY that a true and correct copy of the foregoing was caused to be served by electronic mail on June 21, 2018, upon Steele T. Williams, Esquire, STEELE. T WILLIAMS, PA, attorney for plaintiff, Pineapple Place, 1381 McAnsh Square, Sarasota, Florida, 34236; Steele’ Williams(@C: ast} Respectfully submitted, BRET SHAWN CLARK, PA PO BOX 1133 Englewood, Florida 34295 Tel: (941) 404-4704 B retClark@WebNetLawyer.Com [Bret Clark Bret Clark, Esquire FB #384038 Attorney for Defendant/Counter-Plaintiff Robert O’ Toole [EXHIBITS ON FOLLOWING PAGES] 2|P ag ee Beangrand v. O'Toole Case # 2017 CA 000181 CBARLOTTE COUNTY CLERK OF CIRCEIT COURT OR BOOK: 4038, PGS: (259 PAGE; 1 OF 2 INSTR # 2403541 Doc Type: D. Recorded: 12/24/2018 at 21 PA Rec. Fee: RECORDING $18.50 DOCTAX PD 8665.00 Cashier By: ARENB xs Jby.and return. to: Charles D. Thomas te Attorney at Law Thompson & Thomas, PA. on, f TROL Indian Road, Ste. 100 ‘West Palm Beach, FL 33409 561-651-4150 Fil