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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA.
CIVIL ACTION
WELLS FARGO BANK, NA,
Plaintiff,
CASE NO.: 11-2009-CA-011019
vs. DIVISION: =
<
TIKAL INVESTMENT COMPANY - DISSOLVED, et “3
al, m
Defendant(s). 2 5
/ o =~ on
‘ 7m" RM SF
REPLY TO AFFIRMATIVE DEFENSES : Se so
' Spo oy
Plaintiff replies to the Affirmative Defenses raised by Defendants, TIKAL INVESTMENT COMB&NY‘
on .
LARYSA RUIZ and WALTER RUIZ, and denies all of the allegations contained therein and demands strict proof “
thereof.
1. Defendants’ first affirmative defense alleges that not all conditions precedent have been satisfied.
Plaintiff has alleged that all conditions precedent have been satisfied (Complaint 9). Pursuant to 1.120(c), Florida
Rules of Civil Procedure, “... it is sufficient to aver generally that all conditions precedent have been performed or
have occurred.” Further, the Courts of this state have held that in pleading allegations, certainty will be insisted
upon. The certainty required is that the pleader must set forth the facts in such a manner as to reasonably inform his
adversary of what is proposed to prove in order to provide the latter with a fair opportunity to meet it and prepare his
evidence. Zito v. Washington Fed. Sav. & Loan of Miami Beach, 318 So. 24 175 (Fla. 34 DCA 1975); Citizens Natl.
Bank of Orlando v. Youngblood, 296 So. 2d 92 (Fla. 4th DCA 1974); Walker v. Walker, 254 So. 2d 832 (Fla. Ist
DCA 1971).
2. This is a mere conclusion of law unsupported by ultimate fact. “Certainty is required when
pleading defenses and claims alike.” Bliss v. Carmona, 418 So. 2d 1017 (Fla. 3d DCA 1982) (citing Zito v.
Washington Fed. Sav. & Loan of Miami Beach, 318 So. 2d 175 (Fla. 3d DCA 1975)). “{P]leading conclusions of law
unsupported by allegation of ultimate fact is legally insufficient.” Bliss v. Carmona, 418 So. 2d 1017 (Fla. 34 DCA
Serial: 20763473
FILE_NUMBER: F09124409 DOC_ID: M0129061982) (citing Chris Craft Industries, Inc. v. Van Valkenberg, 267 So. 2d 642 (Fla. 1972)); Clark v. Boeing Co., 395
So. 2d 1226 (Fla. 3d DCA 1981). As such, this affirmative defense does not pose any legally cognizable or
sufficient defense and it must be stricken.
3. Defendants’ second affirmative defense asserts that the Defendants deny the authenticity of all
documents filed in the foreclosure action by the Plaintiff. However, under Florida law these documents are
self-authenticating, no evidence is required to be proffered by Wells Fargo Bank, N.A. to establish their
authenticity. Fla. Stat. § 90.902 (2011) provides that “[e]xtrinsic evidence of authenticity as a condition precedent
to admissibility is not required for:...(8) commercial papers and signatures thereon and documents relating to them,
to the extent provided in the Uniform Commercial Code.” This Court has held “[a] promissory note admitted into
evidence is sufficient, without other extrinsic proof, to establish a prima facie case in an action on the note.” Perez
v. Rivero, 534 So. 2d 914, 916 (Fla. 3d DCA 1988); see also White v. Bachner, 632 So. 2d 94 (Fla. 3d DCA 1994);
Haycock v. Ostman, 397 So. 2d 743, 744 (Fla. Sth DCA 1981) (“A promissory note, mature and regular on its face,
is admissible into evidence without extrinsic proof of its execution or authenticity and, as evidence, is sufficient to
establish a prima face case.”). The Florida Supreme Court, in Kight v. American Eagle Fire Ins. Co. of New York,
170 So. 664, 669 (Fla. 1936), stated that “there is no better evidence” of the transfer of instruments such as a
mortgage, “than the instruments themselves.” A mortgage securing a promissory note passes as an incident upon
the transfer of the note. McClure v. American natl. Bank, 64 So. 427, 428 (Fla. 1914).
4, Defendants’ third affirmative defense alleges that Plaintiff lacks standing to bring this lawsuit.
Plaintiff has proper standing to bring the instant action. Plaintiff is currently in possession of the original Mortgage
Note. The Mortgage Note is indorsed in blank. These facts make Plaintiff the proper holder and give it the right to
enforce the Mortgage Note.
5. Being the holder of a negotiable instrument is all that is necessary for a party to have
standing to enforce it. Florida Statues make it clear that a Mortgage Note is a negotiable instrument. “The term
negotiable instrument means an unconditional promise or order to pay a fixed amount of money, with or without
interest or other charges described in the promise or order, if it:
(a) Is payable to bearer ...;
(b) Is payable on demand or at a definite time; and(©) Does not state any other undertaking or instruction by the person
promising or ordering payment to do any act in addition to the payment
of the money, but the promise or order may contain:
1. An undertaking or power to give, maintain, or protect
collateral to secure payment...”.
Fla, Stat. § 673.1041 (1) (2011). Thus, the other terms to the mortgage agreement added by the Mortgage itself do
not affect the status of the Mortgage Note as a negotiable instrument. In addition, a promise to pay is not made
conditional (and thus the Note remains a negotiable instrument) “[b]y a reference to another writing for a statement
of rights with respect to collateral, prepayment, or acceleration”. Fla. Stat. § 673.1061 (2)(a) (2011). Lastly, the
Mortgage Note is payable on demand and does not lose that status because a maturity date is listed. “If an
instrument, payable at a fixed date, is also payable on demand before the fixed date, the instrument is payable on
demand until the fixed date...”. Fla. Stat. § 673.1081(3) (2011).
6. Established case law supports the position that a Mortgage Note is a negotiable instrument. Lost
promissory notes in connection with home loans have been held to be negotiable instruments. Mason v. Rubin, 727
So. 2d 283 (Fla. 4th DCA 1999). The interests of successors in interest via assignments of subject notes and
mortgages on home loans have also been held to be governed by negotiable instrument law. American Bank of the
South v. Rothenberg, 598 So. 2d 289 (Fla. 5th DCA 1992).
7. The “holder” with respect to a negotiable instrument, means the “person in possession of a
negotiable instrument that is payable either to bearer or to an identified person that is the person in possession...”
Fla, Stat. § 671.201(21)(a) (2011).
8. A “holder” has the right to enforce the Mortgage Note under both Fla. Stat. § 673.3011(1) (2011)
and numerous case law. As stated in numerous cases, the Court will not look beyond the holder of the Note to
identify a proper plaintiff. Booker v. Sarasota, Inc., 707 So. 2d 886 (Fla. Ist DCA 1998). The Supreme Court of
Florida has stated that standing “accords with negotiable instrument laws” and “courts do not generally inquire into
the right of the plaintiff to sue in his own right or in that of a trustee, but the one holding possession is accorded the
tight to foreclose.” Munck v. Manatee River Bank & Trust Co., 165 So. 57, 59 (Fla. 1935).
9. Being holder of the Mortgage Note also allows the Plaintiff to enforce the Mortgage. Amortgage securing a note passes as an incident upon the transfer of the note. McClure v. American Natl. Bank, 64
So. 427 (Fla. 1914). Numerous other cases stand in support of this stated precedent. It is well settled that an actual
assignment of mortgage is not necessary if there is an effective transfer of the underlying note. Thus, the ability to
enforce the Mortgage Note carries with it the ability to enforce the Mortgage. As a result, Plaintiff is able to
foreclose on the subject property and this affirmative defense does not pose any legally cognizable or sufficient
defense.
10. Defendants’ fourth affirmative defense alleges that the contract was not properly executed and is
invalid. The Courts of this state have held that in pleading allegations, certainty will be insisted upon. This
allegation by the Defendants should fail for lack of specificity (as discussed in paragraphs 1 and 2 above) and should
be stricken.
ll. Defendants’ fifth affirmative defense alleges that Plaintiff, through the exercise of reasonable
effort, could have mitigated its amount of damages, but failed and refused, and continues to fail and refuse to
exercise a reasonable effort to mitigate damages and should now be precluded from seeking same. Plaintiff
responds by stating that there is no duty to mitigate under the terms of the subject Mortgage or otherwise since the
instant action is to recover a security in part satisfaction of a debt. The only fees and costs incurred are as a result
this action, which are permissible under the terms of the subject Mortgage, specifically subsection nine (9). As
such, this affirmative defense does not pose any legally cognizable or sufficient defense and it must be stricken.
12. The Defendants’ sixth affirmative defense alleges entitlement to a setoff. This setoff is contingent
upon the Plaintiff violating TILA. However, the Defendants have failed to prove a violation of TILA and therefore
are not entitled to a setoff.
13. Defendants include a Demand for Trial by Jury. Defendants improperly demand a jury trial because
the Defendants waived this right pursuant to the mortgage. All mortgages shall be foreclosed in equity. In a mortgage
foreclosure action, the court shall sever for separate trial all counterclaims against the foreclosing mortgagee. The
foreclosure claim shall, if tried, be tried to the court without a jury. Fla. Stat. § 702.01 (2011). Defendants’ claims all
arise out of or relate to the Mortgage foreclosure claim — therefore there is no basis for a trial by jury. Accordingly,
Plaintiff requests that the jury demand be stricken. See Ladner v. AmSouth Bank, 32 So. 3d 99 (Fla. 2d DCA 2009)
(upholding trial court’s enforcement of jury trial waiver clause included in mortgage agreement).14. Defendants request attorney’s fees. The Mortgage contract is the controlling instrument regarding
such fees. Plaintiff is entitled to attomeys’ fees pursuant to language in paragraph nine (9) of said Mortgage. Nowhere
in the Mortgage contract are Defendants’ attomey’s fees provided for. Therefore, Defendants are not entitled to an
award of their attorney’s fees regardless of whether they prevail in this action or not.
WHEREFORE, Plaintiff respectfully requests this Court enter its Summary Judgment of Foreclosure and
grant Plaintiff any and all other relief to which it may be entitled,
THEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to all
parties listed on the attached service list on this \ \ day of June, 2012.
Ronald R Wolfe & Associates, P.L.
P.O. Box 25018
Tampa, Florida 33622-5048
(813) 251-4766
By:
© Matthew Wolf \IMBERLY L. GARNO
sori Bar No. 92611 FLORIDA BAR
0 Stephen Peterson NO. 84538
Florida Bar No. 0091587Service List
TIKAL INVESTMENT COMPANY - DISSOLVED
c/o STEPHEN P. MATZUK, Esq.
1211 ORANGE AVE
STE 201
WINTER PARK, FL 32789
LARYSA RUIZ
c/o STEPHEN P. MATZUK, Esq.
1211 ORANGE AVE
STE 201
WINTER PARK, FL 32789
WALTER RUIZ
c/o STEPHEN P. MATZUK, Esq.
1211 ORANGE AVE
STE 201
WINTER PARK, FL 32789
BRISTOL PINES COMMUNITY ASSOCIATION, INC.
c/o JOHN GOEDE, Esq.
SERVICE ADDRESS:
5915 TAMIAMI TRAIL N
SUITE 1
NAPLES, FL 34108
MAILING ADDRESS:
8950 FONTANA DEL SOL WAY
STE 100
NAPLES, FL 34109
Preview
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA. CIVIL ACTION WELLS FARGO BANK, NA, Plaintiff, CASE NO.: 11-2009-CA-011019 vs. DIVISION: = < TIKAL INVESTMENT COMPANY - DISSOLVED, et “3 al, m Defendant(s). 2 5 / o =~ on ‘ 7m" RM SF REPLY TO AFFIRMATIVE DEFENSES : Se so ' Spo oy Plaintiff replies to the Affirmative Defenses raised by Defendants, TIKAL INVESTMENT COMB&NY‘ on . LARYSA RUIZ and WALTER RUIZ, and denies all of the allegations contained therein and demands strict proof “ thereof. 1. Defendants’ first affirmative defense alleges that not all conditions precedent have been satisfied. Plaintiff has alleged that all conditions precedent have been satisfied (Complaint 9). Pursuant to 1.120(c), Florida Rules of Civil Procedure, “... it is sufficient to aver generally that all conditions precedent have been performed or have occurred.” Further, the Courts of this state have held that in pleading allegations, certainty will be insisted upon. The certainty required is that the pleader must set forth the facts in such a manner as to reasonably inform his adversary of what is proposed to prove in order to provide the latter with a fair opportunity to meet it and prepare his evidence. Zito v. Washington Fed. Sav. & Loan of Miami Beach, 318 So. 24 175 (Fla. 34 DCA 1975); Citizens Natl. Bank of Orlando v. Youngblood, 296 So. 2d 92 (Fla. 4th DCA 1974); Walker v. Walker, 254 So. 2d 832 (Fla. Ist DCA 1971). 2. This is a mere conclusion of law unsupported by ultimate fact. “Certainty is required when pleading defenses and claims alike.” Bliss v. Carmona, 418 So. 2d 1017 (Fla. 3d DCA 1982) (citing Zito v. Washington Fed. Sav. & Loan of Miami Beach, 318 So. 2d 175 (Fla. 3d DCA 1975)). “{P]leading conclusions of law unsupported by allegation of ultimate fact is legally insufficient.” Bliss v. Carmona, 418 So. 2d 1017 (Fla. 34 DCA Serial: 20763473 FILE_NUMBER: F09124409 DOC_ID: M0129061982) (citing Chris Craft Industries, Inc. v. Van Valkenberg, 267 So. 2d 642 (Fla. 1972)); Clark v. Boeing Co., 395 So. 2d 1226 (Fla. 3d DCA 1981). As such, this affirmative defense does not pose any legally cognizable or sufficient defense and it must be stricken. 3. Defendants’ second affirmative defense asserts that the Defendants deny the authenticity of all documents filed in the foreclosure action by the Plaintiff. However, under Florida law these documents are self-authenticating, no evidence is required to be proffered by Wells Fargo Bank, N.A. to establish their authenticity. Fla. Stat. § 90.902 (2011) provides that “[e]xtrinsic evidence of authenticity as a condition precedent to admissibility is not required for:...(8) commercial papers and signatures thereon and documents relating to them, to the extent provided in the Uniform Commercial Code.” This Court has held “[a] promissory note admitted into evidence is sufficient, without other extrinsic proof, to establish a prima facie case in an action on the note.” Perez v. Rivero, 534 So. 2d 914, 916 (Fla. 3d DCA 1988); see also White v. Bachner, 632 So. 2d 94 (Fla. 3d DCA 1994); Haycock v. Ostman, 397 So. 2d 743, 744 (Fla. Sth DCA 1981) (“A promissory note, mature and regular on its face, is admissible into evidence without extrinsic proof of its execution or authenticity and, as evidence, is sufficient to establish a prima face case.”). The Florida Supreme Court, in Kight v. American Eagle Fire Ins. Co. of New York, 170 So. 664, 669 (Fla. 1936), stated that “there is no better evidence” of the transfer of instruments such as a mortgage, “than the instruments themselves.” A mortgage securing a promissory note passes as an incident upon the transfer of the note. McClure v. American natl. Bank, 64 So. 427, 428 (Fla. 1914). 4, Defendants’ third affirmative defense alleges that Plaintiff lacks standing to bring this lawsuit. Plaintiff has proper standing to bring the instant action. Plaintiff is currently in possession of the original Mortgage Note. The Mortgage Note is indorsed in blank. These facts make Plaintiff the proper holder and give it the right to enforce the Mortgage Note. 5. Being the holder of a negotiable instrument is all that is necessary for a party to have standing to enforce it. Florida Statues make it clear that a Mortgage Note is a negotiable instrument. “The term negotiable instrument means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it: (a) Is payable to bearer ...; (b) Is payable on demand or at a definite time; and(©) Does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of the money, but the promise or order may contain: 1. An undertaking or power to give, maintain, or protect collateral to secure payment...”. Fla, Stat. § 673.1041 (1) (2011). Thus, the other terms to the mortgage agreement added by the Mortgage itself do not affect the status of the Mortgage Note as a negotiable instrument. In addition, a promise to pay is not made conditional (and thus the Note remains a negotiable instrument) “[b]y a reference to another writing for a statement of rights with respect to collateral, prepayment, or acceleration”. Fla. Stat. § 673.1061 (2)(a) (2011). Lastly, the Mortgage Note is payable on demand and does not lose that status because a maturity date is listed. “If an instrument, payable at a fixed date, is also payable on demand before the fixed date, the instrument is payable on demand until the fixed date...”. Fla. Stat. § 673.1081(3) (2011). 6. Established case law supports the position that a Mortgage Note is a negotiable instrument. Lost promissory notes in connection with home loans have been held to be negotiable instruments. Mason v. Rubin, 727 So. 2d 283 (Fla. 4th DCA 1999). The interests of successors in interest via assignments of subject notes and mortgages on home loans have also been held to be governed by negotiable instrument law. American Bank of the South v. Rothenberg, 598 So. 2d 289 (Fla. 5th DCA 1992). 7. The “holder” with respect to a negotiable instrument, means the “person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession...” Fla, Stat. § 671.201(21)(a) (2011). 8. A “holder” has the right to enforce the Mortgage Note under both Fla. Stat. § 673.3011(1) (2011) and numerous case law. As stated in numerous cases, the Court will not look beyond the holder of the Note to identify a proper plaintiff. Booker v. Sarasota, Inc., 707 So. 2d 886 (Fla. Ist DCA 1998). The Supreme Court of Florida has stated that standing “accords with negotiable instrument laws” and “courts do not generally inquire into the right of the plaintiff to sue in his own right or in that of a trustee, but the one holding possession is accorded the tight to foreclose.” Munck v. Manatee River Bank & Trust Co., 165 So. 57, 59 (Fla. 1935). 9. Being holder of the Mortgage Note also allows the Plaintiff to enforce the Mortgage. Amortgage securing a note passes as an incident upon the transfer of the note. McClure v. American Natl. Bank, 64 So. 427 (Fla. 1914). Numerous other cases stand in support of this stated precedent. It is well settled that an actual assignment of mortgage is not necessary if there is an effective transfer of the underlying note. Thus, the ability to enforce the Mortgage Note carries with it the ability to enforce the Mortgage. As a result, Plaintiff is able to foreclose on the subject property and this affirmative defense does not pose any legally cognizable or sufficient defense. 10. Defendants’ fourth affirmative defense alleges that the contract was not properly executed and is invalid. The Courts of this state have held that in pleading allegations, certainty will be insisted upon. This allegation by the Defendants should fail for lack of specificity (as discussed in paragraphs 1 and 2 above) and should be stricken. ll. Defendants’ fifth affirmative defense alleges that Plaintiff, through the exercise of reasonable effort, could have mitigated its amount of damages, but failed and refused, and continues to fail and refuse to exercise a reasonable effort to mitigate damages and should now be precluded from seeking same. Plaintiff responds by stating that there is no duty to mitigate under the terms of the subject Mortgage or otherwise since the instant action is to recover a security in part satisfaction of a debt. The only fees and costs incurred are as a result this action, which are permissible under the terms of the subject Mortgage, specifically subsection nine (9). As such, this affirmative defense does not pose any legally cognizable or sufficient defense and it must be stricken. 12. The Defendants’ sixth affirmative defense alleges entitlement to a setoff. This setoff is contingent upon the Plaintiff violating TILA. However, the Defendants have failed to prove a violation of TILA and therefore are not entitled to a setoff. 13. Defendants include a Demand for Trial by Jury. Defendants improperly demand a jury trial because the Defendants waived this right pursuant to the mortgage. All mortgages shall be foreclosed in equity. In a mortgage foreclosure action, the court shall sever for separate trial all counterclaims against the foreclosing mortgagee. The foreclosure claim shall, if tried, be tried to the court without a jury. Fla. Stat. § 702.01 (2011). Defendants’ claims all arise out of or relate to the Mortgage foreclosure claim — therefore there is no basis for a trial by jury. Accordingly, Plaintiff requests that the jury demand be stricken. See Ladner v. AmSouth Bank, 32 So. 3d 99 (Fla. 2d DCA 2009) (upholding trial court’s enforcement of jury trial waiver clause included in mortgage agreement).14. Defendants request attorney’s fees. The Mortgage contract is the controlling instrument regarding such fees. Plaintiff is entitled to attomeys’ fees pursuant to language in paragraph nine (9) of said Mortgage. Nowhere in the Mortgage contract are Defendants’ attomey’s fees provided for. Therefore, Defendants are not entitled to an award of their attorney’s fees regardless of whether they prevail in this action or not. WHEREFORE, Plaintiff respectfully requests this Court enter its Summary Judgment of Foreclosure and grant Plaintiff any and all other relief to which it may be entitled, THEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to all parties listed on the attached service list on this \ \ day of June, 2012. Ronald R Wolfe & Associates, P.L. P.O. Box 25018 Tampa, Florida 33622-5048 (813) 251-4766 By: © Matthew Wolf \IMBERLY L. GARNO sori Bar No. 92611 FLORIDA BAR 0 Stephen Peterson NO. 84538 Florida Bar No. 0091587Service List TIKAL INVESTMENT COMPANY - DISSOLVED c/o STEPHEN P. MATZUK, Esq. 1211 ORANGE AVE STE 201 WINTER PARK, FL 32789 LARYSA RUIZ c/o STEPHEN P. MATZUK, Esq. 1211 ORANGE AVE STE 201 WINTER PARK, FL 32789 WALTER RUIZ c/o STEPHEN P. MATZUK, Esq. 1211 ORANGE AVE STE 201 WINTER PARK, FL 32789 BRISTOL PINES COMMUNITY ASSOCIATION, INC. c/o JOHN GOEDE, Esq. SERVICE ADDRESS: 5915 TAMIAMI TRAIL N SUITE 1 NAPLES, FL 34108 MAILING ADDRESS: 8950 FONTANA DEL SOL WAY STE 100 NAPLES, FL 34109