Preview
Filing # 186872970 E-Filed 11/28/2023 11:46:16 AM
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: 39
RAMON CARTAGENA, et al,
Defendant(s).
_______________________________________________/
PLAINTIFF’S AMENDED MOTION FOR FINAL SUMMARY JUDGMENT
Plaintiff, WELLS FARGO BANK, N.A, (“Plaintiff”), pursuant to Florida Rule of Civil
Procedure 1.510, moves for entry of Final Summary Judgment on all claims in this cause, on the
grounds that the pleadings, affidavits, and other proofs show that there are no genuine issues as
to any material fact, and that the Plaintiff is entitled to judgment against the Defendants as a
matter of law. In support thereof, Plaintiff states as follows:
INTRODUCTION
This is a one (1) count action for a residential mortgage foreclosure based upon the
failure of RAMON CARTAGENA (“Borrower”) to remit the monthly payment due on February
1, 2022, and all subsequent payments, as required by the governing loan documents. The
principal balance of $277,513.55 is owing to Plaintiff (exclusive of interest, attorneys’ fees, costs
and other charges), as secured by the Mortgage on the subject property at issue. As further
briefed below, the defenses raised in this case attempting to challenge Plaintiff’s foreclosure
action are fatally flawed as a matter of law and there are no genuine issues of material fact such
that summary judgment should not be granted. Therefore, Plaintiff is entitled to entry of
summary final judgment of foreclosure as a matter of law against all Defendants.
FACTUAL AND PROCEDURAL HISTORY OF THE PLEADINGS
1. This foreclosure action involves a parcel of real property located in Osceola
County, Florida, legally described as follows: (the “Property”):
LOT 512 OF EAGLE BAY PHASE THREE, AS RECORDED IN PLAT
BOOK 22, PAGES 104 THROUGH 105, OF THE PUBLIC RECORDS OF
OSCEOLA COUNTY, FLORIDA.
A/K/A 2581 ISABELA TER KISSIMMEE FL 34743
2. On January 5, 2015, Borrower executed a Note (“Note”) in favor of TOP FLITE
FINANCIAL, INC., (“Original Lender”) in the amount of $263,870.00. Contemporaneously
therewith the Borrower executed a Mortgage (“Mortgage”) in favor of Original Lender as
security for the Note. The Mortgage was recorded in Official Records of Polk County, Florida
under Book 4718, Pg. 2303. A true and correct copy of the Note and Mortgage are attached to
the Affidavit Supporting Plaintiff’s Motion for Summary Judgment (“Affidavit 1”) as Exhibit
“B” and Exhibit “C”, respectively, and are also attached to the verified complaint filed in this
action. The original Note is endorsed in blank.
3. The Mortgage was assigned to Plaintiff on August 31, 2015, via an Assignment of
Mortgage (“Assignment”). The Assignment was recorded in Official Records of Osceola
County, Florida under Book 4834, Pg. 1986. A true and correct copy of the Assignment is
attached to the verified complaint filed in this action.
4. On July 22, 2019, the Borrower entered into a Loan Modification with the
Plaintiff. A true and correct copy of the Loan Modification is attached to the verified complaint
filed in this action.
1
The affidavit was previously filed on September 28, 2023.
5. Payments were made on the Note, Mortgage and Loan Modification (collectively
the “Loan Documents”) until the Borrower failed to make the required payment due on
November 1, 2022, and all payments that became due thereafter. A true and correct copy of the
Payment History and Judgment Figures are attached to the Affidavit as Exhibit “A” and
Exhibit “E” respectively.
6. Due to the Borrower’s failure to make the required payments, a Notice of Intent to
Accelerate (“Default Letter), dated November 10, 2022, was sent to them advising that failure to
timely cure the default may result in the acceleration of the amount secured by the Mortgage. A
true and correct copy of the Default Letter is attached to the Affidavit as Exhibit “D” and is also
attached to the verified complaint filed in this action.
7. The Borrower did not tender the amount necessary to cure the default, and as a
result Plaintiff brought this action seeking to accelerate the balance due and foreclose the
Mortgage. To this date, the Loan remains in default. See ¶6 of the Affidavit.
8. The principal amount due and owing under the Note and secured by the Mortgage
is $277,513.55. In addition, Plaintiff is also owed amounts for interest, taxes, insurance and other
recoverable charges, as set forth in the Affidavit, all of which are secured by the Mortgage. The
total amounts due are reflected in ¶6 of the Affidavit Supporting Plaintiff’s Motion for Summary
Judgment.
9. Plaintiff filed this action on April 13, 2023, seeking to foreclose the Mortgage.
10. Plaintiff dropped the unknown tenants 2-4 from this action on June 30, 2023.
11. On July 7, 2023, TD Bank USA, N.A., Midland Funding, LLC and Eagle Bay of
Osceola County Master Association, Inc., (“Defaulted Defendants”), were defaulted.
12. The Borrower and Unknown Party #1 N/K/A Tommy Cartagena filed an Answer
and Affirmative Defenses (the “Defenses”) on August 17, 2023. On August 25, 2023, Plaintiff
filed its Reply.
LEGAL STANDARD
Summary judgment is proper where there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(a). The
purpose of summary judgment is to determine “whether the evidence presents a sufficient
disagreement to require submission to a jury.” In re Amendments to Florida Rule of Civil
Procedure 1.510, 317 So. 3d 72, 75 (Fla. 2021) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242 (1986)). The “correct test for the existence of a genuine factual dispute is whether ‘the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Id. at 75
(quoting Anderson, 477 U.S. at 248)).
A “moving party that does not bear the burden of persuasion at trial can obtain summary
judgment without disproving the nonmovant’s case.” In re Amendments to Florida Rule of Civil
Procedure 1.510, 317 So. 3d at 74. In Florida, it is “no longer [] plausible to maintain that ‘the
existence of any competent evidence creating an issue of fact, however credible or incredible,
substantial or trivial, stops the inquiry and precludes summary judgment, so long as the “slightest
doubt” is raised.’” Id. at 76 (quoting Bruce J. Berman & Peter D. Webster, Berman’s Florida
Civil Procedure § 1.510:5 (2020 ed.).
LEGAL ARGUMENT
I. PRIMA FACIE FORECLOSURE CASE.
This motion is supported by the following summary judgment evidence: (1) Affidavit of
Plaintiff, including all records and documents attached thereto. The summary judgment evidence
demonstrates there is no genuine issue of material fact, and that Plaintiff is entitled to judgment
as a matter of law.
A. No Genuine Issue of Fact Exists as to Plaintiff’s Standing to Foreclose.
Plaintiff, is in possession of the original Note, endorsed in blank, and is entitled to
enforce the Note as the holder. Plaintiff was in possession, and continues to remain in
possession, of the original Note prior to filing the complaint. See the Certification of Possession
of Note attached to the Complaint filed in this action and Affidavit in Support of Summary
Judgment ¶ 3. Further, the Note is in the same condition as when Plaintiff filed the complaint
and, therefore, it is presumed Plaintiff had possession of the Note when filing the complaint.
Ortiz v. PNC Bank, Nat’l Ass’n, 188 So. 3d 923 (Fla. 4th DCA 2016) (citing Clay County Land
Trust v. JPMorgan Chase Bank, Nat’l Ass'n, 152 So. 3d 83 (Fla. 1st DCA 2014)(same)).
As the holder of the Note, since prior to the filing of this action, Plaintiff is entitled to
enforce them against the Borrower and their interests in the Property. See Id.; Am. Home Mortg.
Servicing, Inc. v. Bednarek, 132 So. 3d 1222, 1223 (Fla. 2d DCA 2014) (Bank had standing to
foreclose mortgage as holder of note endorsed in blank); Riggs v. Aurora Loan Servs., LLC, 36
So. 3d 932 (Fla. 4th DCA 2010) (possession of the original promissory note, indorsed in blank, is
sufficient to establish lawful holder of the note, and entitlement to enforce its terms).
All Defendants interests in the Property are inferior and subordinate to the interest of
Plaintiff by way of the Mortgage. Banc Florida v. Hayward, 689 So. 2d 1052, 1054 (Fla. 1997).
The lien of Plaintiff's Mortgage takes priority over any other subsequent claims or liens attaching
to the Property through the Borrower, their successors, assigns and tenants. Id.
B. No Genuine Issue of Fact Exists as to any Conditions Precedent.
Fla. R. Civ. P. 1.120(c) provides that “[i]n pleading the performance or occurrence of
conditions precedent, it is sufficient to aver generally that all conditions precedent have been
performed or have occurred.” Plaintiff’s affidavit in support of Motion for Summary Judgment
includes both the Default Letter and proof of mailing. See Plaintiff’s Affidavit in Support ¶ 4 and
Exhibit D. The Default Letters that Plaintiff mailed to the Borrower, complies with the
requirements of the Mortgage satisfying the conditions precedent.
C. No Genuine Issue of Fact Exists as to the Amounts Owed to Plaintiff.
As a matter of law, the entire indebtedness secured by the Mortgage is due and
collectible. Snow v. Wells Fargo Bank, N.A., 156 So. 3d 538, 541 (Fla. 3d Dist. App. 2015),
rehig denied (Feb. 19, 2015), review denied,. 177 So. 3d 1271 (Fla. 2015) (citing Baader v.
Walker, 153 So. 2d 51 (Fla. 2d DCA 1963), cert. denied, 156 So. 2d 858 (Fla. 1963)). Plaintiff is
entitled to collect costs and attorney's fees incident to the collection of its indebtedness and any
sums advanced to prevent the impairment of its security. Reilly v. Barrera, 620 So. 2d 1116 (Fla.
5th DCA 1993).
Plaintiff’s Affidavit contains the relevant payment history and sets forth the amounts due
and owing under the terms of the Loan. Accordingly, Plaintiff has sufficiently established the
total amount due and owing, as well as other conditions. See Plaintiff’s Affidavit in Support,
which includes the Payment History and Amounts Due on this Loan. See Plaintiff Affidavit ¶ 6
and Exhibits A and E.
II. Plaintiff is entitled to Judgment on the Defenses
An "affirmative defense is a defense which admits the cause of action, but avoids liability, in
whole or in part, by alleging an excuse, justification, or other matter negating or limiting
liability." St. Paul Mercury Ins. Co. v. Coucher, 837 So. 2d 483, 487 (Fla. 5th DCA 2002).
Affirmative defenses must be pled with specificity and "must set forth the facts in such a manner
as to reasonably inform his adversary of what is proposed to be proved in order to provide the
latter with a fair opportunity to meet it and prepare his evidence." Zito v. Washington Fed.
Savings & Loan Ass'n of Miami Beach, 318 So. 2d 175, 176 (Fla. 3d DCA 1975). A lack of
certainty and specificity in pleading affirmative defenses is grounds for disposing of affirmative
defenses. See Zito, 318 So. 2d at 176-77. "[P]leading conclusions of law unsupported by
allegations of ultimate fact is legally insufficient." Cady v. Chevy Chase Savings & Loan, Inc.,
528 So. 2d 136, 138 (Fla. 4th DCA 1988); see also, Leal v. Deutsche Bank Nat'l Trust Co., 21
So. 3d 907, 909 (Fla. 3d DCA 2009) ("Where there are no facts pled to support general
allegations of affirmative defenses, the defenses are legally insufficient.")
Plaintiff, as the moving party, is entitled to summary judgment where the affirmative
defenses of Defendants, as the non-moving parties, are (i) legally insufficient or (ii) factually
refuted. Williams v. Hunt Brothers Constr. Inc., 475 So. 2d 738, 741 (Fla. 2d DCA 1985);
Congress Park Office Condos II, LLC v. First-Citizens Bank & Trust Co., 105 So. 3d 602, 606
(Fla. 4th DCA 2013) ("plaintiff must either factually refute the alleged affirmative defenses or
establish that they are legally insufficient to defeat summary judgment"). For the reasons stated
herein, each affirmative defense raised by Defendants is disproven by the record evidence or
legally and factually insufficient to preclude summary judgment in favor of Plaintiff. The
Defendant’s Answer asserts two (2) affirmative defenses, dealing with conditions precedent.
Plaintiff addresses them as follows.
a. Affirmative Defenses 1 and 2 are legally Insufficient and Contrary to Record
Evidence.
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.
The Borrower and Tenant 2 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.
For the reasons stated herein, the affirmative defense raised by Defendant is disproven by the
record evidence or legally and factually insufficient to preclude summary judgment in favor of
Plaintiff.
2
The Tenant cannot assert compliance with conditions precedent as a defense as they are not a party to the Loan
Documents being foreclosed in this action.
III. PLAINTIFF IS ENTITLED TO DEFAULT FINAL JUDGMENT AGAINST THE
DEFAULTED DEFENDANT.
A default has been entered against the Defaulted Defendants, due to their failure to file or
serve any paper in this matter. The entry of a default precludes a party from contesting the
existence of the plaintiff's claim and the party's liability thereon. See The Florida Bar v. Porter,
684 So.2d 810 (Fla.1996). Upon the entry of default, the Court may enter Final Judgment at any
time. See Fla. R. Civ. P. 1.500(e). A judgment by default is as conclusive on the rights of the
parties as a judgment on the merits. Bay Financial Sav. Bank, F.S.B. v. Hook, 648 So. 2d 305
(Fla. 2d DCA 1995); Elbadramany v. Bryson Crane Rental Services, Inc., 630 So. 2d 214 (Fla.
5th DCA 1993). As a default has been entered against the Defaulted Defendants, Plaintiff is
entitled to entry of a final judgment of foreclosure against them.
CONCLUSION
Plaintiff is entitled to summary final judgment because the pleadings and pending
affidavits in this cause, which are incorporated by reference herein, show there is no genuine
issue as to any material fact. None of the defenses raised by Defendants are legally sufficient to
prevent entry of judgment. Plaintiff is therefore entitled to entry of final judgment against all of
the Defendants in this action.
WHEREFORE, Plaintiff, WELLS FARGO BANK, N.A,, requests this Court, on the
summary judgment evidence presented, enter Summary Final Judgment in its favor and against
Defendants on all claims and defenses raised in this action, enter judgment of foreclosure in the
amounts due and owing under the Note and secured by the Mortgage, order the Property be sold
at foreclosure sale if the amounts due are not timely paid, award Plaintiff its attorneys’ fees and
costs incurred in this matter, and award such other relief as is just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to
all parties listed on the attached service list by mail or eService on this 28 th day of November
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
Preview
Filing # 186872970 E-Filed 11/28/2023 11:46:16 AM 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: 39 RAMON CARTAGENA, et al, Defendant(s). _______________________________________________/ PLAINTIFF’S AMENDED MOTION FOR FINAL SUMMARY JUDGMENT Plaintiff, WELLS FARGO BANK, N.A, (“Plaintiff”), pursuant to Florida Rule of Civil Procedure 1.510, moves for entry of Final Summary Judgment on all claims in this cause, on the grounds that the pleadings, affidavits, and other proofs show that there are no genuine issues as to any material fact, and that the Plaintiff is entitled to judgment against the Defendants as a matter of law. In support thereof, Plaintiff states as follows: INTRODUCTION This is a one (1) count action for a residential mortgage foreclosure based upon the failure of RAMON CARTAGENA (“Borrower”) to remit the monthly payment due on February 1, 2022, and all subsequent payments, as required by the governing loan documents. The principal balance of $277,513.55 is owing to Plaintiff (exclusive of interest, attorneys’ fees, costs and other charges), as secured by the Mortgage on the subject property at issue. As further briefed below, the defenses raised in this case attempting to challenge Plaintiff’s foreclosure action are fatally flawed as a matter of law and there are no genuine issues of material fact such that summary judgment should not be granted. Therefore, Plaintiff is entitled to entry of summary final judgment of foreclosure as a matter of law against all Defendants. FACTUAL AND PROCEDURAL HISTORY OF THE PLEADINGS 1. This foreclosure action involves a parcel of real property located in Osceola County, Florida, legally described as follows: (the “Property”): LOT 512 OF EAGLE BAY PHASE THREE, AS RECORDED IN PLAT BOOK 22, PAGES 104 THROUGH 105, OF THE PUBLIC RECORDS OF OSCEOLA COUNTY, FLORIDA. A/K/A 2581 ISABELA TER KISSIMMEE FL 34743 2. On January 5, 2015, Borrower executed a Note (“Note”) in favor of TOP FLITE FINANCIAL, INC., (“Original Lender”) in the amount of $263,870.00. Contemporaneously therewith the Borrower executed a Mortgage (“Mortgage”) in favor of Original Lender as security for the Note. The Mortgage was recorded in Official Records of Polk County, Florida under Book 4718, Pg. 2303. A true and correct copy of the Note and Mortgage are attached to the Affidavit Supporting Plaintiff’s Motion for Summary Judgment (“Affidavit 1”) as Exhibit “B” and Exhibit “C”, respectively, and are also attached to the verified complaint filed in this action. The original Note is endorsed in blank. 3. The Mortgage was assigned to Plaintiff on August 31, 2015, via an Assignment of Mortgage (“Assignment”). The Assignment was recorded in Official Records of Osceola County, Florida under Book 4834, Pg. 1986. A true and correct copy of the Assignment is attached to the verified complaint filed in this action. 4. On July 22, 2019, the Borrower entered into a Loan Modification with the Plaintiff. A true and correct copy of the Loan Modification is attached to the verified complaint filed in this action. 1 The affidavit was previously filed on September 28, 2023. 5. Payments were made on the Note, Mortgage and Loan Modification (collectively the “Loan Documents”) until the Borrower failed to make the required payment due on November 1, 2022, and all payments that became due thereafter. A true and correct copy of the Payment History and Judgment Figures are attached to the Affidavit as Exhibit “A” and Exhibit “E” respectively. 6. Due to the Borrower’s failure to make the required payments, a Notice of Intent to Accelerate (“Default Letter), dated November 10, 2022, was sent to them advising that failure to timely cure the default may result in the acceleration of the amount secured by the Mortgage. A true and correct copy of the Default Letter is attached to the Affidavit as Exhibit “D” and is also attached to the verified complaint filed in this action. 7. The Borrower did not tender the amount necessary to cure the default, and as a result Plaintiff brought this action seeking to accelerate the balance due and foreclose the Mortgage. To this date, the Loan remains in default. See ¶6 of the Affidavit. 8. The principal amount due and owing under the Note and secured by the Mortgage is $277,513.55. In addition, Plaintiff is also owed amounts for interest, taxes, insurance and other recoverable charges, as set forth in the Affidavit, all of which are secured by the Mortgage. The total amounts due are reflected in ¶6 of the Affidavit Supporting Plaintiff’s Motion for Summary Judgment. 9. Plaintiff filed this action on April 13, 2023, seeking to foreclose the Mortgage. 10. Plaintiff dropped the unknown tenants 2-4 from this action on June 30, 2023. 11. On July 7, 2023, TD Bank USA, N.A., Midland Funding, LLC and Eagle Bay of Osceola County Master Association, Inc., (“Defaulted Defendants”), were defaulted. 12. The Borrower and Unknown Party #1 N/K/A Tommy Cartagena filed an Answer and Affirmative Defenses (the “Defenses”) on August 17, 2023. On August 25, 2023, Plaintiff filed its Reply. LEGAL STANDARD Summary judgment is proper where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(a). The purpose of summary judgment is to determine “whether the evidence presents a sufficient disagreement to require submission to a jury.” In re Amendments to Florida Rule of Civil Procedure 1.510, 317 So. 3d 72, 75 (Fla. 2021) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)). The “correct test for the existence of a genuine factual dispute is whether ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Id. at 75 (quoting Anderson, 477 U.S. at 248)). A “moving party that does not bear the burden of persuasion at trial can obtain summary judgment without disproving the nonmovant’s case.” In re Amendments to Florida Rule of Civil Procedure 1.510, 317 So. 3d at 74. In Florida, it is “no longer [] plausible to maintain that ‘the existence of any competent evidence creating an issue of fact, however credible or incredible, substantial or trivial, stops the inquiry and precludes summary judgment, so long as the “slightest doubt” is raised.’” Id. at 76 (quoting Bruce J. Berman & Peter D. Webster, Berman’s Florida Civil Procedure § 1.510:5 (2020 ed.). LEGAL ARGUMENT I. PRIMA FACIE FORECLOSURE CASE. This motion is supported by the following summary judgment evidence: (1) Affidavit of Plaintiff, including all records and documents attached thereto. The summary judgment evidence demonstrates there is no genuine issue of material fact, and that Plaintiff is entitled to judgment as a matter of law. A. No Genuine Issue of Fact Exists as to Plaintiff’s Standing to Foreclose. Plaintiff, is in possession of the original Note, endorsed in blank, and is entitled to enforce the Note as the holder. Plaintiff was in possession, and continues to remain in possession, of the original Note prior to filing the complaint. See the Certification of Possession of Note attached to the Complaint filed in this action and Affidavit in Support of Summary Judgment ¶ 3. Further, the Note is in the same condition as when Plaintiff filed the complaint and, therefore, it is presumed Plaintiff had possession of the Note when filing the complaint. Ortiz v. PNC Bank, Nat’l Ass’n, 188 So. 3d 923 (Fla. 4th DCA 2016) (citing Clay County Land Trust v. JPMorgan Chase Bank, Nat’l Ass'n, 152 So. 3d 83 (Fla. 1st DCA 2014)(same)). As the holder of the Note, since prior to the filing of this action, Plaintiff is entitled to enforce them against the Borrower and their interests in the Property. See Id.; Am. Home Mortg. Servicing, Inc. v. Bednarek, 132 So. 3d 1222, 1223 (Fla. 2d DCA 2014) (Bank had standing to foreclose mortgage as holder of note endorsed in blank); Riggs v. Aurora Loan Servs., LLC, 36 So. 3d 932 (Fla. 4th DCA 2010) (possession of the original promissory note, indorsed in blank, is sufficient to establish lawful holder of the note, and entitlement to enforce its terms). All Defendants interests in the Property are inferior and subordinate to the interest of Plaintiff by way of the Mortgage. Banc Florida v. Hayward, 689 So. 2d 1052, 1054 (Fla. 1997). The lien of Plaintiff's Mortgage takes priority over any other subsequent claims or liens attaching to the Property through the Borrower, their successors, assigns and tenants. Id. B. No Genuine Issue of Fact Exists as to any Conditions Precedent. Fla. R. Civ. P. 1.120(c) provides that “[i]n pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred.” Plaintiff’s affidavit in support of Motion for Summary Judgment includes both the Default Letter and proof of mailing. See Plaintiff’s Affidavit in Support ¶ 4 and Exhibit D. The Default Letters that Plaintiff mailed to the Borrower, complies with the requirements of the Mortgage satisfying the conditions precedent. C. No Genuine Issue of Fact Exists as to the Amounts Owed to Plaintiff. As a matter of law, the entire indebtedness secured by the Mortgage is due and collectible. Snow v. Wells Fargo Bank, N.A., 156 So. 3d 538, 541 (Fla. 3d Dist. App. 2015), rehig denied (Feb. 19, 2015), review denied,. 177 So. 3d 1271 (Fla. 2015) (citing Baader v. Walker, 153 So. 2d 51 (Fla. 2d DCA 1963), cert. denied, 156 So. 2d 858 (Fla. 1963)). Plaintiff is entitled to collect costs and attorney's fees incident to the collection of its indebtedness and any sums advanced to prevent the impairment of its security. Reilly v. Barrera, 620 So. 2d 1116 (Fla. 5th DCA 1993). Plaintiff’s Affidavit contains the relevant payment history and sets forth the amounts due and owing under the terms of the Loan. Accordingly, Plaintiff has sufficiently established the total amount due and owing, as well as other conditions. See Plaintiff’s Affidavit in Support, which includes the Payment History and Amounts Due on this Loan. See Plaintiff Affidavit ¶ 6 and Exhibits A and E. II. Plaintiff is entitled to Judgment on the Defenses An "affirmative defense is a defense which admits the cause of action, but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter negating or limiting liability." St. Paul Mercury Ins. Co. v. Coucher, 837 So. 2d 483, 487 (Fla. 5th DCA 2002). Affirmative defenses must be pled with specificity and "must set forth the facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with a fair opportunity to meet it and prepare his evidence." Zito v. Washington Fed. Savings & Loan Ass'n of Miami Beach, 318 So. 2d 175, 176 (Fla. 3d DCA 1975). A lack of certainty and specificity in pleading affirmative defenses is grounds for disposing of affirmative defenses. See Zito, 318 So. 2d at 176-77. "[P]leading conclusions of law unsupported by allegations of ultimate fact is legally insufficient." Cady v. Chevy Chase Savings & Loan, Inc., 528 So. 2d 136, 138 (Fla. 4th DCA 1988); see also, Leal v. Deutsche Bank Nat'l Trust Co., 21 So. 3d 907, 909 (Fla. 3d DCA 2009) ("Where there are no facts pled to support general allegations of affirmative defenses, the defenses are legally insufficient.") Plaintiff, as the moving party, is entitled to summary judgment where the affirmative defenses of Defendants, as the non-moving parties, are (i) legally insufficient or (ii) factually refuted. Williams v. Hunt Brothers Constr. Inc., 475 So. 2d 738, 741 (Fla. 2d DCA 1985); Congress Park Office Condos II, LLC v. First-Citizens Bank & Trust Co., 105 So. 3d 602, 606 (Fla. 4th DCA 2013) ("plaintiff must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment"). For the reasons stated herein, each affirmative defense raised by Defendants is disproven by the record evidence or legally and factually insufficient to preclude summary judgment in favor of Plaintiff. The Defendant’s Answer asserts two (2) affirmative defenses, dealing with conditions precedent. Plaintiff addresses them as follows. a. Affirmative Defenses 1 and 2 are legally Insufficient and Contrary to Record Evidence. 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. The Borrower and Tenant 2 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. For the reasons stated herein, the affirmative defense raised by Defendant is disproven by the record evidence or legally and factually insufficient to preclude summary judgment in favor of Plaintiff. 2 The Tenant cannot assert compliance with conditions precedent as a defense as they are not a party to the Loan Documents being foreclosed in this action. III. PLAINTIFF IS ENTITLED TO DEFAULT FINAL JUDGMENT AGAINST THE DEFAULTED DEFENDANT. A default has been entered against the Defaulted Defendants, due to their failure to file or serve any paper in this matter. The entry of a default precludes a party from contesting the existence of the plaintiff's claim and the party's liability thereon. See The Florida Bar v. Porter, 684 So.2d 810 (Fla.1996). Upon the entry of default, the Court may enter Final Judgment at any time. See Fla. R. Civ. P. 1.500(e). A judgment by default is as conclusive on the rights of the parties as a judgment on the merits. Bay Financial Sav. Bank, F.S.B. v. Hook, 648 So. 2d 305 (Fla. 2d DCA 1995); Elbadramany v. Bryson Crane Rental Services, Inc., 630 So. 2d 214 (Fla. 5th DCA 1993). As a default has been entered against the Defaulted Defendants, Plaintiff is entitled to entry of a final judgment of foreclosure against them. CONCLUSION Plaintiff is entitled to summary final judgment because the pleadings and pending affidavits in this cause, which are incorporated by reference herein, show there is no genuine issue as to any material fact. None of the defenses raised by Defendants are legally sufficient to prevent entry of judgment. Plaintiff is therefore entitled to entry of final judgment against all of the Defendants in this action. WHEREFORE, Plaintiff, WELLS FARGO BANK, N.A,, requests this Court, on the summary judgment evidence presented, enter Summary Final Judgment in its favor and against Defendants on all claims and defenses raised in this action, enter judgment of foreclosure in the amounts due and owing under the Note and secured by the Mortgage, order the Property be sold at foreclosure sale if the amounts due are not timely paid, award Plaintiff its attorneys’ fees and costs incurred in this matter, and award such other relief as is just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to all parties listed on the attached service list by mail or eService on this 28 th day of November 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