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Filing # 180558583 E-Filed 08/25/2023 03:53:44 PM
IN THE CIRCUIT COURT FOR THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
GENERAL CIVIL DIVISION
WELLS FARGO BANK, N.A,
Plaintiff(s), Case#: 2023 CA 003228 MF
vs. Division:
RAMON CARTAGENA, et al,
Defendant(s).
_______________________________________________/
PLAINTIFF’S REPLY TO DEFENDANT’S AFFIRMATIVE DEFENSES
Plaintiff, WELLS FARGO BANK, N.A. (“Plaintiff”), hereby files this Reply to
Defendants, RAMON CARTAGENA AND UNKNOWN PARTY #1 N/K/A TOMMY
CARTAGENA (Defendants), Affirmative Defenses and states:
Plaintiff denies each and every allegation contained in Defendant’s Affirmative Defenses
and demands strict proof thereof. Plaintiff contends that the Defendant’s affirmative defenses are
legally insufficient and fail to set forth any basis for denying Plaintiff’s lawful Complaint for
Damages because Defendant’s defenses are: (1) insufficiently pled; (2) not actually defenses;
and/or (3) contrary to Florida law. Accordingly, Plaintiff denies each of Defendant’s Affirmative
Defenses and demands strict proof thereof.
Plaintiff states the following defenses/avoidances to Defendant’s Affirmative Defenses,
without assuming the burden of proof on any such defense that would otherwise rest on the
Defendant and reserves the right to amend and/or supplement its responses to Defendant’s
allegations, as well as these avoidances and defenses, as additional information is obtained through
the discovery process or otherwise.
Affirmative Defenses: A breach letter was sent in November of 2022 by first class mail to
the subject property. The breach letter informed Defendants they were in default, and they could
cure the default by making a specified payment by a certain date. The notice further informed
Defendants of the consequences of failing to cure the default and their right to reinstate and defend
foreclosure. "[S]ubstantial compliance with conditions precedent is all that is required in the
foreclosure context." Ortiz v. PNC Bank, N.A., 188 So. 3d 923, 925 (Fla. 4th DCA 2016); see also
Lopez v. JPMorgan Chase Bank, N.A., 187 So. 3d 343, 345 (Fla. 4th DCA 2016) ("a notice of
default need only substantially comply with a mortgage's condition precedent"). Plaintiff
further states that it has serviced this loan in accordance with the VA guidelines, including but not
limited to, COVID-19 payment suspension, partial claim mortgage and other loss mitigation
options.
Plaintiff asserts as an affirmative defense that the Defendants have not demonstrated any
prejudice as a result of any perceived defect in the default notice or its alleged failure to comply
with certain paragraphs of the note and mortgage. Defendants have never attempted to cure the
default. Defendants had notice of the foreclosure action and have asserted affirmative defenses to
the foreclosure complaint. Gorel v. The Bank of New York Mellon, 165 So. 3d 44, 47 (Fla. 5th
DCA 2015) ("Absent some prejudice, the breach of a condition precedent does not constitute a
defense to the enforcement of an otherwise valid contract"); see also Vasilevskiy v. Wachovia
Bank, N.A., 171 So. 3d 192 (Fla. 5th DCA 2015) (immaterial breach does not require dismissal);
Citigroup Mortgage Loan Trust Inc. v. Scialabba, 43 Fla. L. Weekly D523 (Fla. 4th DCA March
7, 2018).
Finally, Defendants has waived any right to challenge compliance with condition
precedent/servicing regulations, because they have failed to identify the specific manner in which
the Plaintiff failed to comply with the provisions of the note and mortgage. Further, the Defendants
cannot assert compliance to servicing regulations as they are not a party to same.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to
all parties on the attached service list by mail or eService on this 25 th day of August, 2023.
ALBERTELLI LAW
P.O. Box 23028
Tampa, FL 33623
(813) 221-4743
(813) 221-9171 facsimile
eService: servealaw@albertellilaw.com
By: /s/ Justin Ritchie
Justin Ritchie, Esq.
Florida Bar No. 106621
- 23-003322
Service List
Ramon Cartagena
c/o Ayana Cruz, Esq.
2100 Constitution Boulevard Suite 116
Sarasota, FL 34231
E-Serve 1: eservice@vanstonelaw.com, E-Serve 2: acruz@vanstonelaw.com
United States of America Acting through Secretary of Veterans Affairs
c/o U.S. Attorney, 400 North Tampa Street - Suite 3200
Tampa, FL 33602
TD Bank USA, N.A.
c/o President or Vice President, 2035 Limestone Rd
Wilmington, DE 19808
Midland Funding LLC
c/o Midland Credit Management, Inc., Registered Agent, 13008 Telecom Drive, Suite 350
Tampa, FL 33637
Eagle Bay of Osceola County Master Association, Inc.
c/o Association Solutions Of Central Fl, Inc., Registered Agent, 811 Mabbette Street
Kissimmee, FL 34741
Eagle Bay of Osceola County Homeowners Association, Inc
c/o Crystal Maier
448 South Alafaya Trail, Unit 8
Orlando, FL 32828
E-Serve 1: crystal@dhnattorneys.com
Tommy M. Cartagena
c/o Ayana Cruz
2100 Constitution Blvd., Suite 116
Sarasota, FL 34231
E-Serve 1: acruz@vanstonelaw.com
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Filing # 180558583 E-Filed 08/25/2023 03:53:44 PM IN THE CIRCUIT COURT FOR THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA GENERAL CIVIL DIVISION WELLS FARGO BANK, N.A, Plaintiff(s), Case#: 2023 CA 003228 MF vs. Division: RAMON CARTAGENA, et al, Defendant(s). _______________________________________________/ PLAINTIFF’S REPLY TO DEFENDANT’S AFFIRMATIVE DEFENSES Plaintiff, WELLS FARGO BANK, N.A. (“Plaintiff”), hereby files this Reply to Defendants, RAMON CARTAGENA AND UNKNOWN PARTY #1 N/K/A TOMMY CARTAGENA (Defendants), Affirmative Defenses and states: Plaintiff denies each and every allegation contained in Defendant’s Affirmative Defenses and demands strict proof thereof. Plaintiff contends that the Defendant’s affirmative defenses are legally insufficient and fail to set forth any basis for denying Plaintiff’s lawful Complaint for Damages because Defendant’s defenses are: (1) insufficiently pled; (2) not actually defenses; and/or (3) contrary to Florida law. Accordingly, Plaintiff denies each of Defendant’s Affirmative Defenses and demands strict proof thereof. Plaintiff states the following defenses/avoidances to Defendant’s Affirmative Defenses, without assuming the burden of proof on any such defense that would otherwise rest on the Defendant and reserves the right to amend and/or supplement its responses to Defendant’s allegations, as well as these avoidances and defenses, as additional information is obtained through the discovery process or otherwise. Affirmative Defenses: A breach letter was sent in November of 2022 by first class mail to the subject property. The breach letter informed Defendants they were in default, and they could cure the default by making a specified payment by a certain date. The notice further informed Defendants of the consequences of failing to cure the default and their right to reinstate and defend foreclosure. "[S]ubstantial compliance with conditions precedent is all that is required in the foreclosure context." Ortiz v. PNC Bank, N.A., 188 So. 3d 923, 925 (Fla. 4th DCA 2016); see also Lopez v. JPMorgan Chase Bank, N.A., 187 So. 3d 343, 345 (Fla. 4th DCA 2016) ("a notice of default need only substantially comply with a mortgage's condition precedent"). Plaintiff further states that it has serviced this loan in accordance with the VA guidelines, including but not limited to, COVID-19 payment suspension, partial claim mortgage and other loss mitigation options. Plaintiff asserts as an affirmative defense that the Defendants have not demonstrated any prejudice as a result of any perceived defect in the default notice or its alleged failure to comply with certain paragraphs of the note and mortgage. Defendants have never attempted to cure the default. Defendants had notice of the foreclosure action and have asserted affirmative defenses to the foreclosure complaint. Gorel v. The Bank of New York Mellon, 165 So. 3d 44, 47 (Fla. 5th DCA 2015) ("Absent some prejudice, the breach of a condition precedent does not constitute a defense to the enforcement of an otherwise valid contract"); see also Vasilevskiy v. Wachovia Bank, N.A., 171 So. 3d 192 (Fla. 5th DCA 2015) (immaterial breach does not require dismissal); Citigroup Mortgage Loan Trust Inc. v. Scialabba, 43 Fla. L. Weekly D523 (Fla. 4th DCA March 7, 2018). Finally, Defendants has waived any right to challenge compliance with condition precedent/servicing regulations, because they have failed to identify the specific manner in which the Plaintiff failed to comply with the provisions of the note and mortgage. Further, the Defendants cannot assert compliance to servicing regulations as they are not a party to same. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to all parties on the attached service list by mail or eService on this 25 th day of August, 2023. ALBERTELLI LAW P.O. Box 23028 Tampa, FL 33623 (813) 221-4743 (813) 221-9171 facsimile eService: servealaw@albertellilaw.com By: /s/ Justin Ritchie Justin Ritchie, Esq. Florida Bar No. 106621 - 23-003322 Service List Ramon Cartagena c/o Ayana Cruz, Esq. 2100 Constitution Boulevard Suite 116 Sarasota, FL 34231 E-Serve 1: eservice@vanstonelaw.com, E-Serve 2: acruz@vanstonelaw.com United States of America Acting through Secretary of Veterans Affairs c/o U.S. Attorney, 400 North Tampa Street - Suite 3200 Tampa, FL 33602 TD Bank USA, N.A. c/o President or Vice President, 2035 Limestone Rd Wilmington, DE 19808 Midland Funding LLC c/o Midland Credit Management, Inc., Registered Agent, 13008 Telecom Drive, Suite 350 Tampa, FL 33637 Eagle Bay of Osceola County Master Association, Inc. c/o Association Solutions Of Central Fl, Inc., Registered Agent, 811 Mabbette Street Kissimmee, FL 34741 Eagle Bay of Osceola County Homeowners Association, Inc c/o Crystal Maier 448 South Alafaya Trail, Unit 8 Orlando, FL 32828 E-Serve 1: crystal@dhnattorneys.com Tommy M. Cartagena c/o Ayana Cruz 2100 Constitution Blvd., Suite 116 Sarasota, FL 34231 E-Serve 1: acruz@vanstonelaw.com