On July 30, 2015 a
Motion,Ex Parte
was filed
involving a dispute between
Soler, Maria,
and
Melrose Point At Monarch Lakes Condominium Association Inc,
for Condominium Action
in the District Court of Broward County.
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Filing # 33652956 E-Filed 10/26/2015 10:27:58 AM
IN THE CIRCUIT COURT OF THE 17
JUDICIAL CIRCUIT IN AND FOR,
BROWARD COUNTY, FLORIDA
MARIA SOLER GENERAL JURISDICTION DIVISION
Plaintiff; CASE NO.: CACE-15-013152
vs.
MELROSE POINT AT MONARCH
LAKES CONDOMINUM
ASSOCIATION, INC.
Defendant
PLAINTIFF’S MOTION TO STRIKE AFFIRMATIVE DEFENSES
Plaintiff, MARIA SOLER, an individual (hereinafter “PLAINTIFF”) pursuant to Rule 1.140 (b)
hereby files her Motion to Strike Defendant’s MELROSE POINT AT MONARCH LAKES
CONDOMINUM ASSOCIATION, INC. Affirmative Defenses, and as grounds therefore states:
MEMORANDUM OF LAW
|- DEFENDANT’S AFFIRMATIVE DEFENSES ARE FACTUALLY UNSUPPORTED
AND LEGALLY INSUFFICIENT
Most of Defendant’s Affirmative Defenses consist in nothing more than conclusory allegations,
unsupported by ultimate facts to support defenses. Florida law requires specificity and certainty
in pleadings whether they be claims or defenses. Continental Banking Co. v. Vincent, 634 So. 2d
242, 244 ( Fla 5" DCA 1994). A Defendant must allege each element of the defense and must
state the factual basis for the same. L.B McLeod Const. Co. v. Cooper, 134 So. 224, 225 ( Fla.
1931). This is to reasonably inform the adversary and provide them with fair opportunity to
prepare a response. Zito v. Washington Federal Sav. & Loan Assoc. of Miami Beach, 318 So. 2d
175, 176 ( Fla. 34. DCA 1975) As MELROSE POINT AT MONARCH LAKES
CONDOMINUM ASSOCIATION, INC Defenses addresses below are legally insufficient and
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 10/26/2015 10:27:58 AM.****fail as a matter of law, they should be stricken. Valdes v. Lambert, 568 So. 2d 117, 118 ( Fla. 5"
DCA 1990); Zito, 318 So. 2d at 176-177 (certainty is required when pleadings defenses, and
pleading conclusions of law supported by allegations of ultimate fact is legally insufficient)
Il. FIRST AND SECOND AFFIRMATIVE DEFENSES- Defendant’s First and Second
Affirmative Defenses argue that fails to state cause of action. However Defendant limits its
allegations in each by stating “Plaintiff has failed to state a claim upon which relief may be
granted (i.¢., failed to state cause of action) has not establish ...” These affirmative Defenses fail
to reasonably inform the of necessary ultimate facts to allow to formulate a response. As such the
conclusory statements are insufficient and the Affirmative Defenses should be stricken.
I- THIRD AFFIRMATIVE DEFENSE- Defendant has not stated Legal Defense in how
Plaintiff damages are caused by her acts or omissions; It is require that Defendant to disprove the
case and NOT forcing the Plaintiff to prove their case.
IV- FOURTH AFFRMATIVE DEFENSE- Pursue Rule 1.110 of Florida Rules of Civil
Procedure the facts and grounds for Plaintiff relief were established in Plaintiff's complaint, as
the intention to charge assessments that were already paid and the charge of late fees from
Defendant when Plaintiff paid on time and in person each month at the office of Defendant.
\V-FIFTH AFFIRMATIVE DEFENSE —Defendant Fails to explain how Plaintiff failed to
mitigate her damages, or even to which claims this defense applies.
VI. SIXTH AFFIRMATIVE DEFENSE- Pursue 720.302( 2) of the Florida Statues “ The
legislature recognizes that is not in the best interest of homeowners associations or the individual
association members thereof to create or impose a bureau or other agency of state...” The Law
allows outside collection and foreclosure services companies to charge for their services “
Statute prohibiting homeowners associations from imposing or collecting assessments or fee
exceeding amount necessary to defray costs for which it was levied by its terms applied only to
associates, and did not limit fees of associations’ vendors such as property managers” Brown v.
Professional Community Management, Inc. 127 Cal. AppAth 532, 25 Cal Rptr 3e 617 ( Cal.
App. 4 Dist., 2005).
VII. SEVENTH AFFIRMATIVE DEFENSE- Pursue 718.11 1(a) and 720.303(1), Florida
Statutes there is a fiduciary relationship between owners and officer and directors of the HOA,
Under the Presumption that Defendant acted in a good faith hiring a collection agency that will
collect delinquent HOA assessments from homeowners, then delinquent owners shall pay all fees
and cost incurred by (collection agency). The association shall not be responsible for such fees or
costs, so then association don’t need to paid attention to the charges added to the delinquent
account since they are not its problem. Defendant is ultimately responsible for the actions of itsagents (collection agency); this association creates liability as a result of what is being charge
and billed on its behalf.
WHEREFORE, Plaintiff Maria Soler respectfully requests to this Honorable Court the entry of
an order striking Defendant’s Affirmative Defenses.
MARIA SOLER
Document Filed Date
October 26, 2015
Case Filing Date
July 30, 2015
Category
Condominium Action
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Filing # 33652956 E-Filed 10/26/2015 10:27:58 AM IN THE CIRCUIT COURT OF THE 17 JUDICIAL CIRCUIT IN AND FOR, BROWARD COUNTY, FLORIDA MARIA SOLER GENERAL JURISDICTION DIVISION Plaintiff; CASE NO.: CACE-15-013152 vs. MELROSE POINT AT MONARCH LAKES CONDOMINUM ASSOCIATION, INC. Defendant PLAINTIFF’S MOTION TO STRIKE AFFIRMATIVE DEFENSES Plaintiff, MARIA SOLER, an individual (hereinafter “PLAINTIFF”) pursuant to Rule 1.140 (b) hereby files her Motion to Strike Defendant’s MELROSE POINT AT MONARCH LAKES CONDOMINUM ASSOCIATION, INC. Affirmative Defenses, and as grounds therefore states: MEMORANDUM OF LAW |- DEFENDANT’S AFFIRMATIVE DEFENSES ARE FACTUALLY UNSUPPORTED AND LEGALLY INSUFFICIENT Most of Defendant’s Affirmative Defenses consist in nothing more than conclusory allegations, unsupported by ultimate facts to support defenses. Florida law requires specificity and certainty in pleadings whether they be claims or defenses. Continental Banking Co. v. Vincent, 634 So. 2d 242, 244 ( Fla 5" DCA 1994). A Defendant must allege each element of the defense and must state the factual basis for the same. L.B McLeod Const. Co. v. Cooper, 134 So. 224, 225 ( Fla. 1931). This is to reasonably inform the adversary and provide them with fair opportunity to prepare a response. Zito v. Washington Federal Sav. & Loan Assoc. of Miami Beach, 318 So. 2d 175, 176 ( Fla. 34. DCA 1975) As MELROSE POINT AT MONARCH LAKES CONDOMINUM ASSOCIATION, INC Defenses addresses below are legally insufficient and *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 10/26/2015 10:27:58 AM.****fail as a matter of law, they should be stricken. Valdes v. Lambert, 568 So. 2d 117, 118 ( Fla. 5" DCA 1990); Zito, 318 So. 2d at 176-177 (certainty is required when pleadings defenses, and pleading conclusions of law supported by allegations of ultimate fact is legally insufficient) Il. FIRST AND SECOND AFFIRMATIVE DEFENSES- Defendant’s First and Second Affirmative Defenses argue that fails to state cause of action. However Defendant limits its allegations in each by stating “Plaintiff has failed to state a claim upon which relief may be granted (i.¢., failed to state cause of action) has not establish ...” These affirmative Defenses fail to reasonably inform the of necessary ultimate facts to allow to formulate a response. As such the conclusory statements are insufficient and the Affirmative Defenses should be stricken. I- THIRD AFFIRMATIVE DEFENSE- Defendant has not stated Legal Defense in how Plaintiff damages are caused by her acts or omissions; It is require that Defendant to disprove the case and NOT forcing the Plaintiff to prove their case. IV- FOURTH AFFRMATIVE DEFENSE- Pursue Rule 1.110 of Florida Rules of Civil Procedure the facts and grounds for Plaintiff relief were established in Plaintiff's complaint, as the intention to charge assessments that were already paid and the charge of late fees from Defendant when Plaintiff paid on time and in person each month at the office of Defendant. \V-FIFTH AFFIRMATIVE DEFENSE —Defendant Fails to explain how Plaintiff failed to mitigate her damages, or even to which claims this defense applies. VI. SIXTH AFFIRMATIVE DEFENSE- Pursue 720.302( 2) of the Florida Statues “ The legislature recognizes that is not in the best interest of homeowners associations or the individual association members thereof to create or impose a bureau or other agency of state...” The Law allows outside collection and foreclosure services companies to charge for their services “ Statute prohibiting homeowners associations from imposing or collecting assessments or fee exceeding amount necessary to defray costs for which it was levied by its terms applied only to associates, and did not limit fees of associations’ vendors such as property managers” Brown v. Professional Community Management, Inc. 127 Cal. AppAth 532, 25 Cal Rptr 3e 617 ( Cal. App. 4 Dist., 2005). VII. SEVENTH AFFIRMATIVE DEFENSE- Pursue 718.11 1(a) and 720.303(1), Florida Statutes there is a fiduciary relationship between owners and officer and directors of the HOA, Under the Presumption that Defendant acted in a good faith hiring a collection agency that will collect delinquent HOA assessments from homeowners, then delinquent owners shall pay all fees and cost incurred by (collection agency). The association shall not be responsible for such fees or costs, so then association don’t need to paid attention to the charges added to the delinquent account since they are not its problem. Defendant is ultimately responsible for the actions of itsagents (collection agency); this association creates liability as a result of what is being charge and billed on its behalf. WHEREFORE, Plaintiff Maria Soler respectfully requests to this Honorable Court the entry of an order striking Defendant’s Affirmative Defenses. MARIA SOLER