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Filing # 163586212 E-Filed 12/22/2022 03:59:56 PM
IN THE CIRCUIT COURT OF THE 5TH
JUDICIAL CIRCUIT IN AND FOR MARION
COUNTY, FLORIDA
Case No. 2022-CA-001961
U.S. BANK NATIONAL ASSOCIATION,
AS, TRUSTEE FOR THE AFC MORTGAGE
LOAN ASSET BACKED CERTIFICATES,
SERIES 1999-1,
Plaintiff,
Vv.
STEPHEN ERIC DOBER; UNKNOWN
SPOUSE OF DEBORAH E. FOULK;
UNKNOWN SPOUSE OF STEPHEN ERIC
DOBER; UNKNOWN TENANT IN
POSSESSION OF THE SUBJECT
PROPERTY,
Defendants,
/
PLAINTIFF’S REPLY TO TITLE HOLDER’S AFFIRMATIVE DEFENSES
Plaintiff, U.S. BANK NATIONAL ASSOCIATION, AS, TRUSTEE FOR THE AFC
MORTGAGE LOAN ASSET BACKED CERTIFICATES, SERIES 1999-1 (the “Trust”), files
this Reply to Stephen Dober’s (“Title Holder”) affirmative defenses, filed December 5, 2022, and
states:
The Trust denies all of Title Holder’s defenses and alleges the following avoidance
specifically:
1 In reply to Title Holder’s third affirmative defense (Failure to Comply with
Conditions Precedent) the Trust alleges that even if Title Holder’s claim is true that that Title
Holder did not receive a notice of default or acceleration, the contents of this notice was incorrect,
or the Trust failed to comply with the mortgage—claims that are strictly denied—then this would
not prevent foreclosure because the Title Holder is a non-party to the note and mortgage. See Clay
Electronically Filed Marion Case # 22CA001961AX 12/22/2022 03:59:56 PM
LAPIN & LEICHTLING, LLP, 13990 BARTRAM PARK BLVD #2716, JACKSONVILLE, FLORIDA 32258 (305) 569-4100
CASE NO.: 2022-CA-001961
County Land Trust #08-04-25-0078-014-27 v. JPMorgan Chase Bank. N.A., 152 So. 3d 83, 84
(Fla. Ist DCA 2014) (holding that the only party entitled to plead nonperformance of a paragraph
22 condition precedent to a mortgage foreclosure is a borrower.)
Furthermore, the Trust is nonetheless entitled to relief because Title Holder was not
prejudiced by any failure on its part or, alternatively, the Trust substantially complied with its pre-
suit obligations. See, e.g., Caraccia v. U.S. Bank, Nat. Ass'n, 185 So. 3d 1277, 1280 (Fla. 4th DCA
2016) (“Absent some prejudice, the breach of a condition precedent does not constitute a defense
to the enforcement of an otherwise valid contract.”) (quoting Gorel v. Bank of N.Y.Mellon, 165 So.
3d 44, 47 (Fla. 5 DCA 2015), with approval); Bank of New York Mellon v. Nunez, 180 So. 3d 160
(Fla. 3d DCA 2015) (citing and discussing Green Tree Servicing, LLC v. Milam, 177 So. 3d 7 (Fla.
2d DCA 2015), holding only substantial compliance with paragraph 22 of the mortgage required).
2 In reply to Title Holder’s fourth affirmative defense (Failure to Comply with
Federal Law) the Trust alleges that even if Title Holder’s claim is true that the Trust failed to
determine Title Holder’s eligibility for federal programs, or that Title Holder “attempted since
September 2018 to assume and modify his mother’s mortgage,” but that the Trust failed to consider
him or otherwise erred in reviewing his application—claims that are strictly denied—then this
would not prevent foreclosure because Title Holder is not a party to the contract, and the mortgage
is not federally insured and therefore does not fall under 24 CFR § 203.500. Cf. Cross v. Fed. Nat.
Mortg. Ass'n, 359 So. 2d 464, 465 (Fla. 4th DCA 1978) (holding for federally insured mortgage
failure to follow HUD guidelines can be raised as equitable defense).
Furthermore, regarding the alleged failures by Trust to allow assumption and modification
of the loan, Title Holder is not a party to the note and mortgage and, even if he was, the Trust has
a freedom to contract and cannot be compelled to either allow assumption or to modify the loan.
2
LAPIN & LEICHTLING, LLP, 255 ALHAMBRA CIRCLE, SUITE 600, CORAL GABLES, FLORIDA 33134 (305) 569-4100
CASE NO.: 2022-CA-001961
Additionally, the claims relating to the alleged efforts to assume the loan do not constitute an
affirmative defense, as a matter of law.
WE HEREBY CERTIFY that this December 22, 2022, the foregoing was filed with the
Florida Courts e-filing Portal, and served on all those on the Service List either via Notices of
Electronic Filing generated by the ePortal system or another authorized manner.
Respectfully submitted,
LAPIN & LEICHTLING, LLP
Counsel for the Trust
13990 Bartram Park Blvd., #2716
Jacksonville, FL 32258
Telephone No.: (305) 569-4100
Facsimile No.: (305) 569-0000
By: __s/Jan Timothy Williams
JAN TIMOTHY WILLIAMS
Florida Bar No.: 92604
J W y i | 1 jiams@L. L | awfirm.com
JWilliams@LL-lawfirm.com
eservice@LL-lawfirm.com
SERVICE LIST
Lindsay Maisonet, Esq. Adam G. Russo, Esq.
De Cubas & lewis, P.A. MYERS, EICHELBERGER & RUSSO, P.L.
P.O. Box 771270 5750 Major Blvd., Ste. 250
Coral Springs, FL 33077 Orlando, FL 32819
Telephone No.: (954) 453-0365 Phone: (407) 926-2455
Fax: (954) 771-6052 Fax: (407) 536-4977
Email: eservice @decubaslewis.com
Counsel for Stephen Dober
3
LAPIN & LEICHTLING, LLP, 255 ALHAMBRA CIRCLE, SUITE 600, CORAL GABLES, FLORIDA 33134 (305) 569-4100
Preview
Filing # 163586212 E-Filed 12/22/2022 03:59:56 PM IN THE CIRCUIT COURT OF THE 5TH JUDICIAL CIRCUIT IN AND FOR MARION COUNTY, FLORIDA Case No. 2022-CA-001961 U.S. BANK NATIONAL ASSOCIATION, AS, TRUSTEE FOR THE AFC MORTGAGE LOAN ASSET BACKED CERTIFICATES, SERIES 1999-1, Plaintiff, Vv. STEPHEN ERIC DOBER; UNKNOWN SPOUSE OF DEBORAH E. FOULK; UNKNOWN SPOUSE OF STEPHEN ERIC DOBER; UNKNOWN TENANT IN POSSESSION OF THE SUBJECT PROPERTY, Defendants, / PLAINTIFF’S REPLY TO TITLE HOLDER’S AFFIRMATIVE DEFENSES Plaintiff, U.S. BANK NATIONAL ASSOCIATION, AS, TRUSTEE FOR THE AFC MORTGAGE LOAN ASSET BACKED CERTIFICATES, SERIES 1999-1 (the “Trust”), files this Reply to Stephen Dober’s (“Title Holder”) affirmative defenses, filed December 5, 2022, and states: The Trust denies all of Title Holder’s defenses and alleges the following avoidance specifically: 1 In reply to Title Holder’s third affirmative defense (Failure to Comply with Conditions Precedent) the Trust alleges that even if Title Holder’s claim is true that that Title Holder did not receive a notice of default or acceleration, the contents of this notice was incorrect, or the Trust failed to comply with the mortgage—claims that are strictly denied—then this would not prevent foreclosure because the Title Holder is a non-party to the note and mortgage. See Clay Electronically Filed Marion Case # 22CA001961AX 12/22/2022 03:59:56 PM LAPIN & LEICHTLING, LLP, 13990 BARTRAM PARK BLVD #2716, JACKSONVILLE, FLORIDA 32258 (305) 569-4100 CASE NO.: 2022-CA-001961 County Land Trust #08-04-25-0078-014-27 v. JPMorgan Chase Bank. N.A., 152 So. 3d 83, 84 (Fla. Ist DCA 2014) (holding that the only party entitled to plead nonperformance of a paragraph 22 condition precedent to a mortgage foreclosure is a borrower.) Furthermore, the Trust is nonetheless entitled to relief because Title Holder was not prejudiced by any failure on its part or, alternatively, the Trust substantially complied with its pre- suit obligations. See, e.g., Caraccia v. U.S. Bank, Nat. Ass'n, 185 So. 3d 1277, 1280 (Fla. 4th DCA 2016) (“Absent some prejudice, the breach of a condition precedent does not constitute a defense to the enforcement of an otherwise valid contract.”) (quoting Gorel v. Bank of N.Y.Mellon, 165 So. 3d 44, 47 (Fla. 5 DCA 2015), with approval); Bank of New York Mellon v. Nunez, 180 So. 3d 160 (Fla. 3d DCA 2015) (citing and discussing Green Tree Servicing, LLC v. Milam, 177 So. 3d 7 (Fla. 2d DCA 2015), holding only substantial compliance with paragraph 22 of the mortgage required). 2 In reply to Title Holder’s fourth affirmative defense (Failure to Comply with Federal Law) the Trust alleges that even if Title Holder’s claim is true that the Trust failed to determine Title Holder’s eligibility for federal programs, or that Title Holder “attempted since September 2018 to assume and modify his mother’s mortgage,” but that the Trust failed to consider him or otherwise erred in reviewing his application—claims that are strictly denied—then this would not prevent foreclosure because Title Holder is not a party to the contract, and the mortgage is not federally insured and therefore does not fall under 24 CFR § 203.500. Cf. Cross v. Fed. Nat. Mortg. Ass'n, 359 So. 2d 464, 465 (Fla. 4th DCA 1978) (holding for federally insured mortgage failure to follow HUD guidelines can be raised as equitable defense). Furthermore, regarding the alleged failures by Trust to allow assumption and modification of the loan, Title Holder is not a party to the note and mortgage and, even if he was, the Trust has a freedom to contract and cannot be compelled to either allow assumption or to modify the loan. 2 LAPIN & LEICHTLING, LLP, 255 ALHAMBRA CIRCLE, SUITE 600, CORAL GABLES, FLORIDA 33134 (305) 569-4100 CASE NO.: 2022-CA-001961 Additionally, the claims relating to the alleged efforts to assume the loan do not constitute an affirmative defense, as a matter of law. WE HEREBY CERTIFY that this December 22, 2022, the foregoing was filed with the Florida Courts e-filing Portal, and served on all those on the Service List either via Notices of Electronic Filing generated by the ePortal system or another authorized manner. Respectfully submitted, LAPIN & LEICHTLING, LLP Counsel for the Trust 13990 Bartram Park Blvd., #2716 Jacksonville, FL 32258 Telephone No.: (305) 569-4100 Facsimile No.: (305) 569-0000 By: __s/Jan Timothy Williams JAN TIMOTHY WILLIAMS Florida Bar No.: 92604 J W y i | 1 jiams@L. L | awfirm.com JWilliams@LL-lawfirm.com eservice@LL-lawfirm.com SERVICE LIST Lindsay Maisonet, Esq. Adam G. Russo, Esq. De Cubas & lewis, P.A. MYERS, EICHELBERGER & RUSSO, P.L. P.O. Box 771270 5750 Major Blvd., Ste. 250 Coral Springs, FL 33077 Orlando, FL 32819 Telephone No.: (954) 453-0365 Phone: (407) 926-2455 Fax: (954) 771-6052 Fax: (407) 536-4977 Email: eservice @decubaslewis.com Counsel for Stephen Dober 3 LAPIN & LEICHTLING, LLP, 255 ALHAMBRA CIRCLE, SUITE 600, CORAL GABLES, FLORIDA 33134 (305) 569-4100