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Filing # 103455001 E-Filed 02/18/2020 10:28:44 AM
IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT
IN AND FOR MARION COUNTY, FLORIDA
THE FARMERS NATIONAL BANK OF
DANVILLE, A NATIONAL BANKING
ASSOCIAITON
Plaintiff,
vs. CASE NO.: 2019-CA-002336
VICKI DELYS HYDE; ET AL.,
Defendants.
/
MOTION FOR LEAVE TO FILE
AMENDED ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW Defendant, VICKI DELYS HYDE, by and through undersigned counsel,
and pursuant to Fla. R. Civ. P. 1.190 moves this Court for an Order granting leave to amend her
Answer and Affirmative Defenses to Plaintiff's Complaint and deem the Answer and Affirmative
Defenses attached to this motion filed as of the date of the Order. In support thereof, Defendant
states as follows:
1 On or about December 5, 2019, the Plaintiff filed the Complaint in this present
action.
2 On or about January 17, 2020, the Court appointed R. William Futch, Esq. as
Attorney Ad Litem for the Defendant, VICKI DELYS HYDE.
3 On or about January 30, 2020, the appointed Attorney Ad Litem filed an Answer
to the Complaint neither admitting nor denying certain claims and asserting only one affirmative
defenses.
4 On February 12, 2020, undersigned counsel was retained by the Defendant.
5 Now that the undersigned counsel has had the opportunity to review the case, the
Defendant moves for leave of this Court to file an amended answer properly admitting or denying
certain grounds for Plaintiff's complaint and adding proper affirmative defenses.
Electronically Filed Marion Case # 19CA002336AX bort8/2020 10:28:44 AM
6 Florida’s liberal rule governing amendments to pleadings states, “leave of court [to
amend pleadings] shall be given freely when justice so requires.” Thompson v Jared Kane Co.,
Inc., 872 So.2d 356, 360 (Fla. 2d DCA 2004) (stating that requests for leave to amend should be
granted absent exceptional circumstances and “all doubts should be resolved in favor of allowing
an amendment”) (citing Adams v. Knabb Turpentine Co., 435 So.2d 944 (Fla. 1st DCA 1983).
“Courts should be especially liberal when leave to amend is sought at or before a hearing on a
motion for summary judgment.” Laurencio v. Deutsche Bank National Trust Company, 65 So.3d
1190, 1193 (Fla. 2d DCA 2011 (quoting Bill Williams Air Conditioning & Heating, Inc. v.
Haymarket Co-Op. Bank, 582 So.2d 302, 305 (Fla. 1st DCA 1991).
7 This is the Defendant’s first request for leave to amend.
8 The Defendant brings this motion in good faith and not for the purpose of delay.
9 The undersigned has no prior involvement in the present matter.
WHEREFORE, Defendant respectfully requests this Honorable Court to grant leave to
amend and deem the attached Amended Answer to Plaintiff's Complaint as filed.
Dated this 18th day of February 2020.
Respectfully submitted,
/s/ Andrew FitzPatrick, Esq.
Andrew FitzPatrick, Esq.
Florida Bar No. 1002747
Haynes Law Group, P.A.
407 Wekiva Springs Road, Suite 217
Longwood, FL 32779
Telephone: (407) 960-7377
Email: Andy@hayneslegalgroup.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically filed
with the Court and furnished, via electronic mail or first-class mail, this 18th day of February 2020,
to:
AUSTIN T. DAILEY, ESQ.
KLEIN & KLEIN, LLC
Attorney for Plaintiff
40 SE 11% Avenue
Ocala, FL 34471
Email: austin@kleinandkleinpa.com
s/ Andrew FitzPatrick, Esq.
Andrew FitzPatrick, Esq.
IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT
IN AND FOR MARION COUNTY, FLORIDA
THE FARMERS NATIONAL BANK OF
DANVILLE, A NATIONAL BANKING
ASSOCIAITON
Plaintiff,
VS. CASE NO.: 2019-CA-002336
VICKI DELYS HYDE; ET AL.,
Defendants.
/
DEFENDANT’S AMENDED ANSWER AND AFFIRMATIVE DEFENSES
TO AMENDED COMPLAINT
COMES NOW, the Defendant, VICKI DELYS HYDE, by and through undersigned
counsel, and hereby files this Answer and Affirmative Defenses, responding to the
correspondingly numbered paragraphs of Plaintiff's Complaint as follows:
AMENDED ANSWERS AS TO GENERAL ALLEGATIONS
The documents speak for themselves, otherwise denied.
The documents speak for themselves, otherwise denied.
The documents speak for themselves, otherwise denied.
Without knowledge and therefore denied.
Admitted.
COUNTI
The documents speak for themselves, otherwise denied.
Without knowledge and therefore denied.
Admitted.
Without knowledge and therefore denied.
10. Without knowledge and therefore denied.
4
11 Without knowledge and therefore denied.
12 Denied.
13 Denied.
14. Denied.
COUNT I
15 Denied.
16. Without knowledge and therefore denied.
17. Denied.
18 Denied.
19. Denied.
20. Without knowledge and therefore denied.
21 Without knowledge and therefore denied.
COUNT III
22 Admitted for jurisdictional purposes only, otherwise denied.
23 Without knowledge and therefore denied.
24. Denied.
25 Denied.
26. Denied.
27. Denied.
28 Denied.
29. Denied.
30. Denied.
AMENDED AFFIRMATIVE DEFENSES
Having answered the Complaint, the Defendant, VICKI DELYS HYDE, asserts the
following enumerated Affirmative Defenses.
FIRST AFFIRMATIVE DEFENSE
1 The Defendant asserts that the Plaintiff's Complaint and every purported claim
against the Defendant contained therein fails to state any cause of action upon which Plaintiff may
be granted relief from the Defendant in the circumstances of this case.
2. The Plaintiff failed to attach any document evidencing it satisfied the pre-conditions
to foreclosure by providing notice of default, notice of acceleration, notice before acceleration, or
notice in general which thereby would have allowed the Defendant an opportunity to cure.
3 The Plaintiff failed to attach any documents evidencing the Defendant were in
default.
SECOND AFFIRMATIVE DEFENSE
4 The Defendant asserts that the Plaintiff failed to attach any document to the
Plaintiff's Complaint showing compliance with the requirement to prove that all conditions
precedent to the acceleration of the Note and to the foreclosure of the Mortgage have been fulfilled.
THIRD AFFIRMATIVE DEFENSE
5 The Defendant asserts all requirements of applicable mortgage foreclosure statutes.
FOURTH AFFIRMATIVE DEFENSE
6. The Defendant asserts that the Plaintiff's claim is barred and or limited for violation
of the state and or federal fair debt collection practices act.
FIFTH AFFIRMATIVE DEFENSE
7 The Defendant asserts that the Plaintiff cannot prove its case against the Defendant
and therefore this court should enter judgment in Defendant’s favor and quiet title in their favor,
voiding the alleged Promissory Note and Mortgage upon which the Plaintiff seeks to recover
herein.
SIXTH AFFIRMATIVE DEFENSE
8 The Defendant asserts that the Plaintiff's claim for attorney’s fees is barred for
failure to perform of meet conditions precedent under the promissory Note and or Mortgage upon
which action is allegedly based.
RESERVATION OF AFFIRMATIVE DEFENSES
9 The Defendant presently has insufficient knowledge and information on which to
form a belief as to whether he has additional affirmative defenses, and the Defendant respectfully
reserves the right to assert additional affirmative defenses in the event discovery indicates such
defenses would be appropriate.
WHEREFORE, the Defendant, VICKI DELYS HYDE, respectfully requests that this
Court enter judgment in the Defendant’ favor and grant such other and further relief as this Court
deems just and proper.
Dated this 18th day of February 2020.
Respectfully submitted,
/s/Andrew D. FitzPatrick, Esg.
Andrew D. FitzPatrick, Esq.
Florida Bar No. 1002747
Haynes Law Group, P.A.
407 Wekiva Springs Road, Suite 217
Longwood, FL 32779
Telephone: (407) 960-7377
Email: Andy@hayneslegalgroup.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically filed
with the Court and furnished, via electronic mail or first-class mail, this 18th day of February 2020,
to:
AUSTIN T. DAILEY, ESQ.
KLEIN & KLEIN, LLC
Attorney for Plaintiff
40 SE 11 Avenue
Ocala, FL 34471
Email: austin@kleinandkleinpa.com
s/ Andrew FitzPatrick, Esg.
Andrew FitzPatrick, Esq.
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Filing # 103455001 E-Filed 02/18/2020 10:28:44 AM IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR MARION COUNTY, FLORIDA THE FARMERS NATIONAL BANK OF DANVILLE, A NATIONAL BANKING ASSOCIAITON Plaintiff, vs. CASE NO.: 2019-CA-002336 VICKI DELYS HYDE; ET AL., Defendants. / MOTION FOR LEAVE TO FILE AMENDED ANSWER AND AFFIRMATIVE DEFENSES COMES NOW Defendant, VICKI DELYS HYDE, by and through undersigned counsel, and pursuant to Fla. R. Civ. P. 1.190 moves this Court for an Order granting leave to amend her Answer and Affirmative Defenses to Plaintiff's Complaint and deem the Answer and Affirmative Defenses attached to this motion filed as of the date of the Order. In support thereof, Defendant states as follows: 1 On or about December 5, 2019, the Plaintiff filed the Complaint in this present action. 2 On or about January 17, 2020, the Court appointed R. William Futch, Esq. as Attorney Ad Litem for the Defendant, VICKI DELYS HYDE. 3 On or about January 30, 2020, the appointed Attorney Ad Litem filed an Answer to the Complaint neither admitting nor denying certain claims and asserting only one affirmative defenses. 4 On February 12, 2020, undersigned counsel was retained by the Defendant. 5 Now that the undersigned counsel has had the opportunity to review the case, the Defendant moves for leave of this Court to file an amended answer properly admitting or denying certain grounds for Plaintiff's complaint and adding proper affirmative defenses. Electronically Filed Marion Case # 19CA002336AX bort8/2020 10:28:44 AM 6 Florida’s liberal rule governing amendments to pleadings states, “leave of court [to amend pleadings] shall be given freely when justice so requires.” Thompson v Jared Kane Co., Inc., 872 So.2d 356, 360 (Fla. 2d DCA 2004) (stating that requests for leave to amend should be granted absent exceptional circumstances and “all doubts should be resolved in favor of allowing an amendment”) (citing Adams v. Knabb Turpentine Co., 435 So.2d 944 (Fla. 1st DCA 1983). “Courts should be especially liberal when leave to amend is sought at or before a hearing on a motion for summary judgment.” Laurencio v. Deutsche Bank National Trust Company, 65 So.3d 1190, 1193 (Fla. 2d DCA 2011 (quoting Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Co-Op. Bank, 582 So.2d 302, 305 (Fla. 1st DCA 1991). 7 This is the Defendant’s first request for leave to amend. 8 The Defendant brings this motion in good faith and not for the purpose of delay. 9 The undersigned has no prior involvement in the present matter. WHEREFORE, Defendant respectfully requests this Honorable Court to grant leave to amend and deem the attached Amended Answer to Plaintiff's Complaint as filed. Dated this 18th day of February 2020. Respectfully submitted, /s/ Andrew FitzPatrick, Esq. Andrew FitzPatrick, Esq. Florida Bar No. 1002747 Haynes Law Group, P.A. 407 Wekiva Springs Road, Suite 217 Longwood, FL 32779 Telephone: (407) 960-7377 Email: Andy@hayneslegalgroup.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically filed with the Court and furnished, via electronic mail or first-class mail, this 18th day of February 2020, to: AUSTIN T. DAILEY, ESQ. KLEIN & KLEIN, LLC Attorney for Plaintiff 40 SE 11% Avenue Ocala, FL 34471 Email: austin@kleinandkleinpa.com s/ Andrew FitzPatrick, Esq. Andrew FitzPatrick, Esq. IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR MARION COUNTY, FLORIDA THE FARMERS NATIONAL BANK OF DANVILLE, A NATIONAL BANKING ASSOCIAITON Plaintiff, VS. CASE NO.: 2019-CA-002336 VICKI DELYS HYDE; ET AL., Defendants. / DEFENDANT’S AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO AMENDED COMPLAINT COMES NOW, the Defendant, VICKI DELYS HYDE, by and through undersigned counsel, and hereby files this Answer and Affirmative Defenses, responding to the correspondingly numbered paragraphs of Plaintiff's Complaint as follows: AMENDED ANSWERS AS TO GENERAL ALLEGATIONS The documents speak for themselves, otherwise denied. The documents speak for themselves, otherwise denied. The documents speak for themselves, otherwise denied. Without knowledge and therefore denied. Admitted. COUNTI The documents speak for themselves, otherwise denied. Without knowledge and therefore denied. Admitted. Without knowledge and therefore denied. 10. Without knowledge and therefore denied. 4 11 Without knowledge and therefore denied. 12 Denied. 13 Denied. 14. Denied. COUNT I 15 Denied. 16. Without knowledge and therefore denied. 17. Denied. 18 Denied. 19. Denied. 20. Without knowledge and therefore denied. 21 Without knowledge and therefore denied. COUNT III 22 Admitted for jurisdictional purposes only, otherwise denied. 23 Without knowledge and therefore denied. 24. Denied. 25 Denied. 26. Denied. 27. Denied. 28 Denied. 29. Denied. 30. Denied. AMENDED AFFIRMATIVE DEFENSES Having answered the Complaint, the Defendant, VICKI DELYS HYDE, asserts the following enumerated Affirmative Defenses. FIRST AFFIRMATIVE DEFENSE 1 The Defendant asserts that the Plaintiff's Complaint and every purported claim against the Defendant contained therein fails to state any cause of action upon which Plaintiff may be granted relief from the Defendant in the circumstances of this case. 2. The Plaintiff failed to attach any document evidencing it satisfied the pre-conditions to foreclosure by providing notice of default, notice of acceleration, notice before acceleration, or notice in general which thereby would have allowed the Defendant an opportunity to cure. 3 The Plaintiff failed to attach any documents evidencing the Defendant were in default. SECOND AFFIRMATIVE DEFENSE 4 The Defendant asserts that the Plaintiff failed to attach any document to the Plaintiff's Complaint showing compliance with the requirement to prove that all conditions precedent to the acceleration of the Note and to the foreclosure of the Mortgage have been fulfilled. THIRD AFFIRMATIVE DEFENSE 5 The Defendant asserts all requirements of applicable mortgage foreclosure statutes. FOURTH AFFIRMATIVE DEFENSE 6. The Defendant asserts that the Plaintiff's claim is barred and or limited for violation of the state and or federal fair debt collection practices act. FIFTH AFFIRMATIVE DEFENSE 7 The Defendant asserts that the Plaintiff cannot prove its case against the Defendant and therefore this court should enter judgment in Defendant’s favor and quiet title in their favor, voiding the alleged Promissory Note and Mortgage upon which the Plaintiff seeks to recover herein. SIXTH AFFIRMATIVE DEFENSE 8 The Defendant asserts that the Plaintiff's claim for attorney’s fees is barred for failure to perform of meet conditions precedent under the promissory Note and or Mortgage upon which action is allegedly based. RESERVATION OF AFFIRMATIVE DEFENSES 9 The Defendant presently has insufficient knowledge and information on which to form a belief as to whether he has additional affirmative defenses, and the Defendant respectfully reserves the right to assert additional affirmative defenses in the event discovery indicates such defenses would be appropriate. WHEREFORE, the Defendant, VICKI DELYS HYDE, respectfully requests that this Court enter judgment in the Defendant’ favor and grant such other and further relief as this Court deems just and proper. Dated this 18th day of February 2020. Respectfully submitted, /s/Andrew D. FitzPatrick, Esg. Andrew D. FitzPatrick, Esq. Florida Bar No. 1002747 Haynes Law Group, P.A. 407 Wekiva Springs Road, Suite 217 Longwood, FL 32779 Telephone: (407) 960-7377 Email: Andy@hayneslegalgroup.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically filed with the Court and furnished, via electronic mail or first-class mail, this 18th day of February 2020, to: AUSTIN T. DAILEY, ESQ. KLEIN & KLEIN, LLC Attorney for Plaintiff 40 SE 11 Avenue Ocala, FL 34471 Email: austin@kleinandkleinpa.com s/ Andrew FitzPatrick, Esg. Andrew FitzPatrick, Esq.