Motion-Secondary: WELLS FARGO BANK NATIONAL ASSOCIATION Plaintiff vs MacFarlane, Dennis et al Defendant

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                                Filing # 53956426 E-Filed 03/20/2017 03:50:45 PM



                       IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
                                         IN AND FOR LEE COUNTY, FLORIDA
                                                    CIVIL DIVISION


        Wells Fargo Bank, National Association                 Case #: 2016-CA-004556

                         Plaintiff,
        -VS.-

        Dennis MacFarlane; et al.


                         Defendant(s).

        REPLY TO AFFIRMATIVE DEFENSES OF DEFENDANT, PATRICIA MACFARLANE
                            A/K/A PATRICIA GORKOWSKI

                   Plaintiff, Wells Fargo Bank, National Association, by and through its undersigned

        attorney, hereby files this reply to the Affirmative Defenses of Defendant, Patricia MacFarlane

        a/k/a Patricia Gorkowski, and states as follows:

                   1     Plaintiff denies all of Defendant’s affirmative defenses and demands strict proof

        thereof.

                   2     Defendant’s affirmative defenses are barred, in whole or in part, by his binding,

        voluntary agreement to the terms and conditions of the loan.

                   3     Defendant’s Affirmative Defenses contain boilerplate conclusions of law and

        blanket allegations, but do not supply any facts to support their statements.   It is well established

        in Florida that an affirmative defense must clearly and concisely set out the essential facts and

        not aver merely legal conclusions. See Thompson v. Bank of New York,            2003 WL 22492343

        (Fla. 4th DCA 2003); Cady v. Chase Sav. and Loan Ine., 628 So. 2d 136, 138 (Fla. 4th DCA

        1988) (certainty is required when pleading a defense, and pleading conclusions of law

        unsupported by allegations of ultimately facts is legally insufficient).




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4       Without the requisite facts to support an affirmative defense, Plaintiff must guess

at the basis   for such   defense   and   ultimately   has no idea what   to defend   against.   “(T]he

requirement of certainty will be insisted upon in the pleading of a defense; and 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 be proved in order provide the latter with a fair opportunity to

meet it and prepare his evidence.” Zito v. Washington Fed. Sav. & Loan Ass'n of Miami Beach,

318 So. 2d 175, 176 (Fla. 3rd DCA 1975).

        5       Defendant    in the instant case has asserted         legal and factual conclusions

without any basis and, therefore, has failed to meet the minimum               requirement for legal

sufficiency in his affirmative defenses.

        6       With respect to the Affirmative          Defense   of noncompliance    with conditions

precedent, Defendant has failed to describe Plaintiffs purported noncompliance with sufficient

particularity such that Plaintiff has to guess as to what it is Defendant claims was not complied

with.   Further, Defendant has not pled, nor has suffered, any prejudice resulting from any

purported noncompliance.
        7
                With respect to the Affirmative Defense of standing, Plaintiff will reestablish the

lost note through a lost note affidavit or testimony at trial.

        WHEREFORE,          the Plaintiff requests the Honorable Court will find in favor of the

Plaintiff and against the Defendant.

                                    CERTIFICATE OF SERVICE

        I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished

by U.S. Mail and/or email service if an email address is so listed below on this       Oday of

    “Maw          UA , 2017 to the following:




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Dennis MacFarlane, 24761 Lyonia Lane, Bonita Springs, FL 34134

Patricia MacFarlane a/k/a Patricia Gorkowski, 24761 Lyonia Lane, Bonita Springs, FL 34134

ce: lan T. Holmes, Esq., Holmes Kurnik, P.A., 711 5th Avenue South, Suite 200, Naples, FL
34102

Curcio Family Ventures, LLC, c/o lan T. Holmes, Esq., I]Holmes@HolmesKurnik.com &
jsilverfield@HolmesKurnik.com & ttaylor@HolmesKurnik.com

Pelican Landing Community Association, Inc., c/o Thomas B. Hart, Esq., THart@knott-law.com
& PWeller@knott-law.com

ce: Ian T. Holmes, Esq., Holmes Kurnik, P.A., Iholmes@holmeskurnik.com &
ttaylor@holmeskurnik.com

*Pursuant to Fla. R. Jud. Admin. 2.516(b)(1)(A), Plaintiffs counsel
hereby designates its primary email address for the purposes of
email service as: SFGBocaService@logs.com*
                                      SHAPIRO, FISHMAN & GACHE, LLP
                                      Attorneys for Plaintiff
                                      2424 North Federal Highway, Ste 360
                                      Boca Raton, Florida 33431
                                      Telephone: (561) 998-6700
                                      Fax: (561) 998-6707
                                      For Email Service Only: SFGBocaService@logs.com
                                      For all other inquiries: ldiskin@logs.com




                                      FL Bar # 43811

Pursuant to the Fair Debt Collections Practices Act, you are advised that this office may be
deemed a debt collector and any information obtained may be used for that purpose.


16-305035 FCO1 WNI




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