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Filing # 46203527 E-Filed 09/08/2016 02:39:47 PM
IN THE CIRCUIT COURT OF THE
THIRTEENTH JUDICIAL CIRCUIT IN AND
FOR HILLSBOROUGH COUNTY, FLORIDA
NATIONSTAR MORTGAGE LLC,
Plaintiff,
v. Case No. 2013-CA-014646
JOHN MICHAEL THOMA, JR., et al.,
Defendants.
/
NATIONSTAR'S1 MOTION FOR SUMMARY FINAL
JUDGMENT OF FORECLOSURE
I. INTRODUCTION
John M. Thoma Jr. and Cindy Thoma n/k/a Cindy Rhea have had use of their property
"rent-free" for over four years without meeting their contractual mortgage loan obligations.
Their purported affirmative defenses do not bar foreclosure. There is no genuine issue of
material fact. Nationstar entitled to summary final judgment of foreclosure.
II. MATERIAL FACTS
A. The Mortgage Loan.
John M. Thoma Jr. executed a $182,200.00 promissory note on October 24, 2006 to
Bann-Cor Mortgage, a California Corporation. (NSM Aff. ¶ 5, Ex. A)2 Mr. Thoma and Cindy
M. Thoma, husband and wife, executed a mortgage on the same date to secure the loan. (NSM
Aff. ¶ 5, Ex. B.) The property is located in Hillsborough County. The Thomas obtained a
HAMP loan modification and signed the loan modification agreement in March 2010. (NSM
Aff. ¶ 5, Ex. C.)
1
"Nationstar" refers to plaintiff, Nationstar Mortgage LLC.
2
"NSM Aff." refers to the affidavit of Nationstar that will be filed.
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B. Default, Failure to Cure, Amounts Due.
Nationstar has been servicing this loan since November 5, 2010. (NSM Aff. ¶ 6, Exs. D,
E.) Mr. Thoma defaulted by failing to make the payment due September 1, 2012, and all
subsequent payments. (Id.) Nationstar mailed, by both regular U.S. mail and certified U.S.
mail, a breach letter to Mr. Thoma on May 17, 2013. (NSM Aff. ¶ 8, Exs. G, H, I, J.) The notice
was mailed to Mr. Thoma's notice address, and the property address. (Id.) Mr. Thoma failed to
cure the default. (NSM Aff. ¶6, Exs. D, E.) There is currently due and owing the principal
amount of $171,687.15 and additional amounts set forth in the affidavit. (NSM Aff. 8, Ex. J, K.)
C. Litigation, Indorsed Note, Parties.
Nationstar filed this foreclosure action on December 2, 2013. It attached a copy of the
note, duly indorsed, to its complaint along with the loan modification and mortgage. The
original note was indorsed by the original lender to CitiMortgage, Inc., which indorsed the note
in blank. Nationstar filed the original note, mortgage, and loan modification agreement with the
court on March 11, 2015. The copy of the note attached to the complaint bears the same
markings and indorsement as the original note on file with the Court.
Mr. and Mrs. Thoma answered the complaint. Unknown party in possession nka Breanna
Reha was defaulted on May 29, 2014. The remaining parties were dropped.
III. LEGAL ANALYSIS
A. The Undisputed Facts Require Foreclosure.
The undisputed evidence shows Mr. Thoma defaulted by failing to make timely payments
of his mortgage loan. Nationstar mailed the notice of default to Mr. Thoma. He failed to cure.
The affidavit establishes the amounts due and owing based on business records excepted from
hearsay under section 90.803(6) of the Florida Statutes. See Nationstar Mortg., LLC v. Berdecia,
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169 So. 3d 209, 216 (Fla. 5th DCA 2015) (documents integrated from prior servicer admissible
after witness employed by subsequent servicer laid foundation for admission). The breach letter
is not hearsay. Holt v. Calchas, LLC, 155 So. 3d 499, 506 (Fla. 4th DCA 2015) (copy of breach
notice was admissible non-hearsay to show act occurred, not contents).
B. The Thomas' Affirmative Defenses Do Not Bar Foreclosure.
The Thomas raise thirteen purported "affirmative" defenses. None prevent entry of
summary judgment. "[A]n affirmative defense is an assertion of facts or law by the defendant
that, if true, would avoid the action." Custer Med. Ctr. v. Universal Auto. Ins. Co., 62 So. 3d
1086, 1096–97 (Fla. 2010) (per curiam).
Alleged affirmative defenses that are "conclusory in their content, and lacking in any real
allegations of ultimate fact demonstrating a good defense to the complaint" are legally
insufficient and, as such, do not bar entry of summary final judgment. Cady v. Chevy Chase Sav.
& Loan, Inc., 528 So. 2d 136, 137-38 (Fla. 4th DCA 1988). See also Bliss v. Carmona, 418 So.
2d 1017, 1019 (Fla. 3d DCA 1982) ("[P]leading conclusions of law unsupported by allegations
of ultimate fact is legally insufficient.").
1. Unclean Hands Fails (1st Affirmative Defense).
Representing a loan modification or short sale is impossible without the loan being in
default, and then refusing to give a modification or short sale after the alleged default, does not
rise to the level of unclean hands. The Thomas do not allege—because they cannot—there was
any promise they would actually receive a modification or short sale if they defaulted. Unclean
hands only applies if the plaintiff acted in such a way as to "be condemned by honest and
reasonable men." Faber v. Landman, 123 So. 2d 405, 408 (Fla. 2d DCA 1960). Plaintiff must
have "acted in bad faith, resorted to trickery and deception, or been guilty of fraud … even
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though in his wrongdoing they may have kept himself strictly within the law." Garfinkle v.
Weil, 672 F. 2d 1340, 1347 n. 7 (11th Cir. 1982) (quoting Peninsula Land Co. v. Howard, 149
Fla. 772, 6 So. 2d 384, 389 (1941)). The unclean hands defense fails as a matter of law.
2. Failure to Mitigate Fails (2nd Affirmative Defense).
A lender or servicer has no duty to mitigate Mr. Thoma's failure to comply with his loan
obligations before filing suit to foreclose. There is nothing in the loan documents or the law
requiring a lender to offer a loan modification. The Thomas had already received a HAMP
modification, and breached the loan as modified. This defense fails.
3. Standing is Established (3rd Affirmative Defense).
Nationstar has standing to foreclose because it possessed the original note, indorsed in
blank, when it filed suit. See § 673.3011, FLA. STAT. (note holder is entitled to enforce the note);
§ 671.201(21), FLA. STAT. (holder is person in possession of a negotiable instrument payable to
bearer); § 671.201(5), FLA. STAT. ("'Bearer' means the person in possession of an instrument . . .
payment to bearer or indorsed in blank.")
Nationstar attached a copy of the note indorsed in blank, to its complaint. That copy is
identical to the original note Nationstar filed with the court. Nationstar's standing is established.
PNC Bank v. Ortiz, 188 So. 3d 923, 925 (Fla. 4th DCA 2016) (standing to foreclose is proven
where plaintiff files the original note in the same condition as the copy attached to the complaint,
bearing indorsement in blank); Nationstar Nat'l Ass'n v. Clark, 192 So. 3d 620, 622 (Fla. 4th
DCA 2016) (same); Nationstar Nat'l Assoc. as Trustee v. Laird, 41 Fla. L. Weekly D 1549, case
no. 5D14-4033 (Fla. 5th DCA July 1, 2016) (same).
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4. A Cause of Action Has Been Stated (4th Affirmative Defense).
This defense is conclusory and legally insufficient. Its reference to paragraph 5 of the
complaint is frivolous. That paragraph avers Nationstar holds the note and mortgage.
Nationstar has proved this.
5. There is Nothing Unconscionable About the Loan (5th Affirmative Defense).
The Thomas fail to allege any facts showing procedural and substantive
unconscionability. To decline to enforce a contract as unconscionable, a court must find the
contract is both procedurally and substantively unconscionable. Murphy v. Courtesy Ford, LLC,
944 So. 2d 1131, 1134 (Fla. 3d DCA 2006); Basulto v. Hialeah Automotive, 141 So. 3d 1145,
1157 (Fla. 4th DCA 2014). Procedural unconscionability relates to the manner in which the
contract was made and if the consumer had a meaningful choice. Basulto, 141 So. 3d at 1157;
Orkin Exterminating Co. v. Petsch, 872 So. 2d 259, 265 (Fla. 2d DCA 2004). Substantive
unconscionability considers whether the contract terms themselves are so unfair that enforcement
should be withheld. Basulto, 141 So. 3d at 1157-58 (Fla. 4th DCA 2014). A substantively
unconscionable contract is one that "no man in his senses and not under delusion would make on
the one hand, and . . . no honest and fair man would accept on the other." Belcher v. Kier, 558
So. 2d 1039, 1044 (Fla. 2d DCA 1990). The Thomas fail to plead ultimate facts supporting this
defense. It is legally insufficient. They seek to excuse their contractual non-performance based
on the "real estate collapse." Florida law does not allow generalized economic conditions as a
defense to mortgage foreclosure.
6. Waiver Defense Fails (6th Affirmative Defense).
The waiver defense is conclusory and fails to allege any facts as to the lender's intentional
relinquishment of a known right. It is legally insufficient. It also fails as a matter of law based
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on the anti-waiver provisions in the mortgage and note. The mortgage states: "Any forbearance
by Lender in exercising any right or remedy including, without limitation, Lender's acceptance of
payments . . . in amounts less than the amount then due, shall not be a waiver of or preclude the
exercise of any right or remedy." (NSM Aff. Ex. C, mortgage ¶12). The note states: "Even if, at
the time when I am in default, the Note Holder does not require me to pay immediately in full as
described above, the Note Holder will still have the right to do so if I am in default at a later
time." (NSM Aff. Ex. B, note ¶ 6 D.) Contractual anti-waiver clauses are enforceable and
invalidate defenses based on both waiver and estoppel. See Nat'l Home Communities LLC v.
Friends of Sunshine Key, Inc., 874 So. 2d 631, 634 (Fla. 3d DCA 2004) ("defenses of waiver and
estoppel are defeated as a matter of law by the anti-waiver provisions of the contract itself");
Goodwin v. Blu Murray Ins. Agency, Inc., 939 So. 2d 1098, 1104 (Fla. 5th DCA 2006) (waiver
requires intentional relinquishment of a known right).
7. Estoppel Defense Fails (7th Affirmative Defense).
There is no defense of estoppel based on a representation the only way to be considered
for a loan modification or short sale was to default, and then not providing a loan modification or
short sale. They do not allege—because they cannot—the loan servicer changed its position in
this regard, and its change of position harmed them. These are essential elements of estoppel.
Equitable estoppel only applies if: (1) the party against whom estoppel is sought represented a
material fact that is contrary to a position it later asserts; (2) the party claiming estoppel relied on
that representation; and (3) the party seeking estoppel changed his position to his detriment based
on the representation and his reliance on it. Goodwin v. Blu Murray Ins. Agency, Inc., 939 So.
2d 1098, 1103 (Fla. 5th DCA 2006).
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8. FDCPA and FCCPA Allegations Fail (8th Affirmative Defense).
The Thomas parrot statutory language of the Florida and federal debt collection practices
acts without providing any allegations of ultimate fact to show any violation. Their sole
allegation is "Plaintiff and its agents called Defendant(s) repeatedly in an attempt to collect this
debt, often and odd hours of the day, despite knowing Defendant is represented by counsel."
(Ans. ¶ 23.) This is wholly conclusory. No allegations are made as to who made calls, how
often, at what times. Simply regurgitating statutory language, without more, is conclusory and
does not raise a legally cognizable defense.
9. Complaint Verification Defense Fails (9th Affirmative Defense).
The complaint was properly verified by Nationstar. The certificate of note possession
complies with the law and any challenge to it is not a valid defense. Campbell v. Wells Fargo
Bank, N.A., 41 Fla. L. Weekly D1560a (Fla. 4th DCA July 6, 2015) (the certification requirement
"was not intended as a prerequisite to suit but was instead intended to expedite the foreclosure
process" and is not a mandatory condition precedent to suit).
10. RESPA is No Defense (10th Affirmative Defense).
The Thomas' setoff defense for alleged failure to provide change of servicer notices fail.
12 U.S.C. 2605(c). Nationstar provided a service transfer notice. (NSM Aff. ¶ 7, Ex. F.) The
Thomas had been paying Nationstar for almost two years before they defaulted. They were
clearly on notice Nationstar was the servicer. They could not have been damaged by any alleged
failure to provide change of servicer notices.
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11. Statute of Limitations Defense is Conclusory (11th Affirmative Defense).
The Thomas' statute of limitations defense is wholly conclusory and legally insufficient.
Even if sufficient, it fails. Mr. Thoma breached by failing to pay the September 1, 2012
payment. This lawsuit was filed the next year.
12. Section 559.715 is Not A Defense to Foreclosure (12th Affirmative Defense).
The Thomas blatantly disregard binding case law holding section 559.715 is neither a
condition precedent nor defense to foreclosure. Brindise v. Nationstar Nat'l Assoc., 183 So. 3d
1215 (Fla. 2d DCA 2016); Deutsche Bank Nat'l Trust Co. v. Hagstrom, 2D14-5254 (Fla. 2d
DCA July 20, 2016).
13. The Agency Defense Fails.
Nationstar is suing on its own behalf. There is no agency issue.
14. Conditions Precedent Defenses Do Not Bar Foreclosure.
Nationstar mailed the breach letter required by mortgage paragraph 22 by both regular
mail and certified mail, to both Mr. Thoma's notice address and the property address. Mr.
Thoma's receipt of the letter is immaterial. Mortgage paragraph 15 deems notice is given when
the letter is mailed. Receipt is irrelevant. Bank of America, N.A. v. Nash, 2016 WL 2596015 at
*3 (Fla. 5th DCA May 6, 2016). The breach letter complies or substantially complies, and no
prejudice has been shown. Green Tree Servicing, LLC. v. Milam, 177 So. 3d 7 (Fla. 2d DCA
2015); Johnson v. Bank of New York Mellon, 185 So. 3d 594 (Fla. 5th DCA 2016).
Compliance with HUD guidelines is not a prerequisite to foreclosure. See Cross v. Fed.
Nat'l Mortgage Ass'n, 359 So. 2d 464, 465 (Fla. 4th DCA 1978) ("HUD guidelines are not
mandatory procedures constituting conditions precedent to foreclosure.") Even if HUD
regulations were a condition precedent to foreclosure, Nationstar fully complied with HUD's
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requirement by including counseling information on the notice of default. See 12 U.S.C. §
1701x(c)(5)(A) (requiring creditor to notify eligible homeowners of the availability of
counseling offered by the creditor and HUD-approved counseling or a toll-free telephone number
"through which any eligible homeowner can obtain a list of nonprofit organizations.")
12 U.S.C. § 2605(l)(1) is inapplicable. Nationstar has not obtained forced-placed
insurance for this property. The remaining defenses are conclusory.
IV. CONCLUSION
There is no genuine issue of material fact. Nationstar is entitled to summary judgment as
a matter of law. Nationstar requests the Court enter judgment in its favor, foreclosing the
mortgage, and retaining jurisdiction to make any and all further orders and judgments as may be
necessary and proper, including a deficiency decree and issuing a writ of possession.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 8th day of September, 2016, the foregoing was
electronically filed with the Clerk of the Courts using the Florida Courts E-Filing Portal, and a
true and correct copy was furnished via e-mail to: Mark P. Stopa, Esq. (foreclosurepleadings@
stopalawfirm.com), Stopa Law Firm, 2202 N. Westshore Boulevard, Suite 200, Tampa, FL
33607; and Julee K. Vance, Esq. (sfgtampaservice@logs.com), Shapiro, Fishman & Gaché,
LLP, 4630 Woodland Corporate Boulevard, Suite 100, Tampa, FL 33614; and via U.S. Mail to:
Unknown Parties in Possesion #1 n/k/a Brenna Rhea, 4507 Mohican Trail, Valrico, FL
33594.
AKERMAN LLP
/s/ Kathryn B. Hoeck
Kathryn B. Hoeck, Esq.
Fla. Bar No. 0813060
Primary E-mail: kathy.hoeck@akerman.com
Secondary E-mail: patricia.blouin@akerman.com
William P. Gray, Esq.
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Fla. Bar No. 0983993
Primary E-mail: bill.gray@akerman.com
Secondary E-mail: patricia.blouin@akerman.com
420 South Orange Avenue, Suite 1200
Orlando, FL 32801
407-423-4000 phone
407-843-6610 fax
- and -
William P. Heller, Esq.
Fla. Bar No. 0987263
Primary E-mail: william.heller@akerman.com
Secondary E-mail: lorraine.corsaro@akerman.com
AKERMAN LLP
350 East Las Olas Blvd., Suite 1600
Fort Lauderdale, FL 33301
954-463-2700 phone
954-463-2224 fax
Counsel for Plaintiff
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Filing # 46203527 E-Filed 09/08/2016 02:39:47 PM IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA NATIONSTAR MORTGAGE LLC, Plaintiff, v. Case No. 2013-CA-014646 JOHN MICHAEL THOMA, JR., et al., Defendants. / NATIONSTAR'S1 MOTION FOR SUMMARY FINAL JUDGMENT OF FORECLOSURE I. INTRODUCTION John M. Thoma Jr. and Cindy Thoma n/k/a Cindy Rhea have had use of their property "rent-free" for over four years without meeting their contractual mortgage loan obligations. Their purported affirmative defenses do not bar foreclosure. There is no genuine issue of material fact. Nationstar entitled to summary final judgment of foreclosure. II. MATERIAL FACTS A. The Mortgage Loan. John M. Thoma Jr. executed a $182,200.00 promissory note on October 24, 2006 to Bann-Cor Mortgage, a California Corporation. (NSM Aff. ¶ 5, Ex. A)2 Mr. Thoma and Cindy M. Thoma, husband and wife, executed a mortgage on the same date to secure the loan. (NSM Aff. ¶ 5, Ex. B.) The property is located in Hillsborough County. The Thomas obtained a HAMP loan modification and signed the loan modification agreement in March 2010. (NSM Aff. ¶ 5, Ex. C.) 1 "Nationstar" refers to plaintiff, Nationstar Mortgage LLC. 2 "NSM Aff." refers to the affidavit of Nationstar that will be filed. {39314303;1} 1 of 10 09/08/2016 2:39 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1 B. Default, Failure to Cure, Amounts Due. Nationstar has been servicing this loan since November 5, 2010. (NSM Aff. ¶ 6, Exs. D, E.) Mr. Thoma defaulted by failing to make the payment due September 1, 2012, and all subsequent payments. (Id.) Nationstar mailed, by both regular U.S. mail and certified U.S. mail, a breach letter to Mr. Thoma on May 17, 2013. (NSM Aff. ¶ 8, Exs. G, H, I, J.) The notice was mailed to Mr. Thoma's notice address, and the property address. (Id.) Mr. Thoma failed to cure the default. (NSM Aff. ¶6, Exs. D, E.) There is currently due and owing the principal amount of $171,687.15 and additional amounts set forth in the affidavit. (NSM Aff. 8, Ex. J, K.) C. Litigation, Indorsed Note, Parties. Nationstar filed this foreclosure action on December 2, 2013. It attached a copy of the note, duly indorsed, to its complaint along with the loan modification and mortgage. The original note was indorsed by the original lender to CitiMortgage, Inc., which indorsed the note in blank. Nationstar filed the original note, mortgage, and loan modification agreement with the court on March 11, 2015. The copy of the note attached to the complaint bears the same markings and indorsement as the original note on file with the Court. Mr. and Mrs. Thoma answered the complaint. Unknown party in possession nka Breanna Reha was defaulted on May 29, 2014. The remaining parties were dropped. III. LEGAL ANALYSIS A. The Undisputed Facts Require Foreclosure. The undisputed evidence shows Mr. Thoma defaulted by failing to make timely payments of his mortgage loan. Nationstar mailed the notice of default to Mr. Thoma. He failed to cure. The affidavit establishes the amounts due and owing based on business records excepted from hearsay under section 90.803(6) of the Florida Statutes. See Nationstar Mortg., LLC v. Berdecia, {39314303;1} 2 of 10 09/08/2016 2:39 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2 169 So. 3d 209, 216 (Fla. 5th DCA 2015) (documents integrated from prior servicer admissible after witness employed by subsequent servicer laid foundation for admission). The breach letter is not hearsay. Holt v. Calchas, LLC, 155 So. 3d 499, 506 (Fla. 4th DCA 2015) (copy of breach notice was admissible non-hearsay to show act occurred, not contents). B. The Thomas' Affirmative Defenses Do Not Bar Foreclosure. The Thomas raise thirteen purported "affirmative" defenses. None prevent entry of summary judgment. "[A]n affirmative defense is an assertion of facts or law by the defendant that, if true, would avoid the action." Custer Med. Ctr. v. Universal Auto. Ins. Co., 62 So. 3d 1086, 1096–97 (Fla. 2010) (per curiam). Alleged affirmative defenses that are "conclusory in their content, and lacking in any real allegations of ultimate fact demonstrating a good defense to the complaint" are legally insufficient and, as such, do not bar entry of summary final judgment. Cady v. Chevy Chase Sav. & Loan, Inc., 528 So. 2d 136, 137-38 (Fla. 4th DCA 1988). See also Bliss v. Carmona, 418 So. 2d 1017, 1019 (Fla. 3d DCA 1982) ("[P]leading conclusions of law unsupported by allegations of ultimate fact is legally insufficient."). 1. Unclean Hands Fails (1st Affirmative Defense). Representing a loan modification or short sale is impossible without the loan being in default, and then refusing to give a modification or short sale after the alleged default, does not rise to the level of unclean hands. The Thomas do not allege—because they cannot—there was any promise they would actually receive a modification or short sale if they defaulted. Unclean hands only applies if the plaintiff acted in such a way as to "be condemned by honest and reasonable men." Faber v. Landman, 123 So. 2d 405, 408 (Fla. 2d DCA 1960). Plaintiff must have "acted in bad faith, resorted to trickery and deception, or been guilty of fraud … even {39314303;1} 3 of 10 09/08/2016 2:39 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3 though in his wrongdoing they may have kept himself strictly within the law." Garfinkle v. Weil, 672 F. 2d 1340, 1347 n. 7 (11th Cir. 1982) (quoting Peninsula Land Co. v. Howard, 149 Fla. 772, 6 So. 2d 384, 389 (1941)). The unclean hands defense fails as a matter of law. 2. Failure to Mitigate Fails (2nd Affirmative Defense). A lender or servicer has no duty to mitigate Mr. Thoma's failure to comply with his loan obligations before filing suit to foreclose. There is nothing in the loan documents or the law requiring a lender to offer a loan modification. The Thomas had already received a HAMP modification, and breached the loan as modified. This defense fails. 3. Standing is Established (3rd Affirmative Defense). Nationstar has standing to foreclose because it possessed the original note, indorsed in blank, when it filed suit. See § 673.3011, FLA. STAT. (note holder is entitled to enforce the note); § 671.201(21), FLA. STAT. (holder is person in possession of a negotiable instrument payable to bearer); § 671.201(5), FLA. STAT. ("'Bearer' means the person in possession of an instrument . . . payment to bearer or indorsed in blank.") Nationstar attached a copy of the note indorsed in blank, to its complaint. That copy is identical to the original note Nationstar filed with the court. Nationstar's standing is established. PNC Bank v. Ortiz, 188 So. 3d 923, 925 (Fla. 4th DCA 2016) (standing to foreclose is proven where plaintiff files the original note in the same condition as the copy attached to the complaint, bearing indorsement in blank); Nationstar Nat'l Ass'n v. Clark, 192 So. 3d 620, 622 (Fla. 4th DCA 2016) (same); Nationstar Nat'l Assoc. as Trustee v. Laird, 41 Fla. L. Weekly D 1549, case no. 5D14-4033 (Fla. 5th DCA July 1, 2016) (same). {39314303;1} 4 of 10 09/08/2016 2:39 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 4 4. A Cause of Action Has Been Stated (4th Affirmative Defense). This defense is conclusory and legally insufficient. Its reference to paragraph 5 of the complaint is frivolous. That paragraph avers Nationstar holds the note and mortgage. Nationstar has proved this. 5. There is Nothing Unconscionable About the Loan (5th Affirmative Defense). The Thomas fail to allege any facts showing procedural and substantive unconscionability. To decline to enforce a contract as unconscionable, a court must find the contract is both procedurally and substantively unconscionable. Murphy v. Courtesy Ford, LLC, 944 So. 2d 1131, 1134 (Fla. 3d DCA 2006); Basulto v. Hialeah Automotive, 141 So. 3d 1145, 1157 (Fla. 4th DCA 2014). Procedural unconscionability relates to the manner in which the contract was made and if the consumer had a meaningful choice. Basulto, 141 So. 3d at 1157; Orkin Exterminating Co. v. Petsch, 872 So. 2d 259, 265 (Fla. 2d DCA 2004). Substantive unconscionability considers whether the contract terms themselves are so unfair that enforcement should be withheld. Basulto, 141 So. 3d at 1157-58 (Fla. 4th DCA 2014). A substantively unconscionable contract is one that "no man in his senses and not under delusion would make on the one hand, and . . . no honest and fair man would accept on the other." Belcher v. Kier, 558 So. 2d 1039, 1044 (Fla. 2d DCA 1990). The Thomas fail to plead ultimate facts supporting this defense. It is legally insufficient. They seek to excuse their contractual non-performance based on the "real estate collapse." Florida law does not allow generalized economic conditions as a defense to mortgage foreclosure. 6. Waiver Defense Fails (6th Affirmative Defense). The waiver defense is conclusory and fails to allege any facts as to the lender's intentional relinquishment of a known right. It is legally insufficient. It also fails as a matter of law based {39314303;1} 5 of 10 09/08/2016 2:39 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 5 on the anti-waiver provisions in the mortgage and note. The mortgage states: "Any forbearance by Lender in exercising any right or remedy including, without limitation, Lender's acceptance of payments . . . in amounts less than the amount then due, shall not be a waiver of or preclude the exercise of any right or remedy." (NSM Aff. Ex. C, mortgage ¶12). The note states: "Even if, at the time when I am in default, the Note Holder does not require me to pay immediately in full as described above, the Note Holder will still have the right to do so if I am in default at a later time." (NSM Aff. Ex. B, note ¶ 6 D.) Contractual anti-waiver clauses are enforceable and invalidate defenses based on both waiver and estoppel. See Nat'l Home Communities LLC v. Friends of Sunshine Key, Inc., 874 So. 2d 631, 634 (Fla. 3d DCA 2004) ("defenses of waiver and estoppel are defeated as a matter of law by the anti-waiver provisions of the contract itself"); Goodwin v. Blu Murray Ins. Agency, Inc., 939 So. 2d 1098, 1104 (Fla. 5th DCA 2006) (waiver requires intentional relinquishment of a known right). 7. Estoppel Defense Fails (7th Affirmative Defense). There is no defense of estoppel based on a representation the only way to be considered for a loan modification or short sale was to default, and then not providing a loan modification or short sale. They do not allege—because they cannot—the loan servicer changed its position in this regard, and its change of position harmed them. These are essential elements of estoppel. Equitable estoppel only applies if: (1) the party against whom estoppel is sought represented a material fact that is contrary to a position it later asserts; (2) the party claiming estoppel relied on that representation; and (3) the party seeking estoppel changed his position to his detriment based on the representation and his reliance on it. Goodwin v. Blu Murray Ins. Agency, Inc., 939 So. 2d 1098, 1103 (Fla. 5th DCA 2006). {39314303;1} 6 of 10 09/08/2016 2:39 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 6 8. FDCPA and FCCPA Allegations Fail (8th Affirmative Defense). The Thomas parrot statutory language of the Florida and federal debt collection practices acts without providing any allegations of ultimate fact to show any violation. Their sole allegation is "Plaintiff and its agents called Defendant(s) repeatedly in an attempt to collect this debt, often and odd hours of the day, despite knowing Defendant is represented by counsel." (Ans. ¶ 23.) This is wholly conclusory. No allegations are made as to who made calls, how often, at what times. Simply regurgitating statutory language, without more, is conclusory and does not raise a legally cognizable defense. 9. Complaint Verification Defense Fails (9th Affirmative Defense). The complaint was properly verified by Nationstar. The certificate of note possession complies with the law and any challenge to it is not a valid defense. Campbell v. Wells Fargo Bank, N.A., 41 Fla. L. Weekly D1560a (Fla. 4th DCA July 6, 2015) (the certification requirement "was not intended as a prerequisite to suit but was instead intended to expedite the foreclosure process" and is not a mandatory condition precedent to suit). 10. RESPA is No Defense (10th Affirmative Defense). The Thomas' setoff defense for alleged failure to provide change of servicer notices fail. 12 U.S.C. 2605(c). Nationstar provided a service transfer notice. (NSM Aff. ¶ 7, Ex. F.) The Thomas had been paying Nationstar for almost two years before they defaulted. They were clearly on notice Nationstar was the servicer. They could not have been damaged by any alleged failure to provide change of servicer notices. {39314303;1} 7 of 10 09/08/2016 2:39 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 7 11. Statute of Limitations Defense is Conclusory (11th Affirmative Defense). The Thomas' statute of limitations defense is wholly conclusory and legally insufficient. Even if sufficient, it fails. Mr. Thoma breached by failing to pay the September 1, 2012 payment. This lawsuit was filed the next year. 12. Section 559.715 is Not A Defense to Foreclosure (12th Affirmative Defense). The Thomas blatantly disregard binding case law holding section 559.715 is neither a condition precedent nor defense to foreclosure. Brindise v. Nationstar Nat'l Assoc., 183 So. 3d 1215 (Fla. 2d DCA 2016); Deutsche Bank Nat'l Trust Co. v. Hagstrom, 2D14-5254 (Fla. 2d DCA July 20, 2016). 13. The Agency Defense Fails. Nationstar is suing on its own behalf. There is no agency issue. 14. Conditions Precedent Defenses Do Not Bar Foreclosure. Nationstar mailed the breach letter required by mortgage paragraph 22 by both regular mail and certified mail, to both Mr. Thoma's notice address and the property address. Mr. Thoma's receipt of the letter is immaterial. Mortgage paragraph 15 deems notice is given when the letter is mailed. Receipt is irrelevant. Bank of America, N.A. v. Nash, 2016 WL 2596015 at *3 (Fla. 5th DCA May 6, 2016). The breach letter complies or substantially complies, and no prejudice has been shown. Green Tree Servicing, LLC. v. Milam, 177 So. 3d 7 (Fla. 2d DCA 2015); Johnson v. Bank of New York Mellon, 185 So. 3d 594 (Fla. 5th DCA 2016). Compliance with HUD guidelines is not a prerequisite to foreclosure. See Cross v. Fed. Nat'l Mortgage Ass'n, 359 So. 2d 464, 465 (Fla. 4th DCA 1978) ("HUD guidelines are not mandatory procedures constituting conditions precedent to foreclosure.") Even if HUD regulations were a condition precedent to foreclosure, Nationstar fully complied with HUD's {39314303;1} 8 of 10 09/08/2016 2:39 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 8 requirement by including counseling information on the notice of default. See 12 U.S.C. § 1701x(c)(5)(A) (requiring creditor to notify eligible homeowners of the availability of counseling offered by the creditor and HUD-approved counseling or a toll-free telephone number "through which any eligible homeowner can obtain a list of nonprofit organizations.") 12 U.S.C. § 2605(l)(1) is inapplicable. Nationstar has not obtained forced-placed insurance for this property. The remaining defenses are conclusory. IV. CONCLUSION There is no genuine issue of material fact. Nationstar is entitled to summary judgment as a matter of law. Nationstar requests the Court enter judgment in its favor, foreclosing the mortgage, and retaining jurisdiction to make any and all further orders and judgments as may be necessary and proper, including a deficiency decree and issuing a writ of possession. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 8th day of September, 2016, the foregoing was electronically filed with the Clerk of the Courts using the Florida Courts E-Filing Portal, and a true and correct copy was furnished via e-mail to: Mark P. Stopa, Esq. (foreclosurepleadings@ stopalawfirm.com), Stopa Law Firm, 2202 N. Westshore Boulevard, Suite 200, Tampa, FL 33607; and Julee K. Vance, Esq. (sfgtampaservice@logs.com), Shapiro, Fishman & Gaché, LLP, 4630 Woodland Corporate Boulevard, Suite 100, Tampa, FL 33614; and via U.S. Mail to: Unknown Parties in Possesion #1 n/k/a Brenna Rhea, 4507 Mohican Trail, Valrico, FL 33594. AKERMAN LLP /s/ Kathryn B. Hoeck Kathryn B. Hoeck, Esq. Fla. Bar No. 0813060 Primary E-mail: kathy.hoeck@akerman.com Secondary E-mail: patricia.blouin@akerman.com William P. Gray, Esq. {39314303;1} 9 of 10 09/08/2016 2:39 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 9 Fla. Bar No. 0983993 Primary E-mail: bill.gray@akerman.com Secondary E-mail: patricia.blouin@akerman.com 420 South Orange Avenue, Suite 1200 Orlando, FL 32801 407-423-4000 phone 407-843-6610 fax - and - William P. Heller, Esq. Fla. Bar No. 0987263 Primary E-mail: william.heller@akerman.com Secondary E-mail: lorraine.corsaro@akerman.com AKERMAN LLP 350 East Las Olas Blvd., Suite 1600 Fort Lauderdale, FL 33301 954-463-2700 phone 954-463-2224 fax Counsel for Plaintiff {39314303;1} 10 of 10 09/08/2016 2:39 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 10