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Filing # 43538412 E-Filed 07/05/2016 12:34:26 PM
IN THE SEVENTEENTH JUDICIAL CIRCUIT COURT,
IN AND FOR BROWARD COUNTY, FLORIDA
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Plaintiff,
Me CASE NO.: CACE15012905
RICHARD C. PERITZ; CYNTHIA A.
BURFIELD A/K/A CYNTHIA ANN
BURFIELD; UNKNOWN TENANT; IN
POSSESSION OF THE SUBJECT
PROPERTY,
Defendant(s).
REPLY TO AFFIRMATIVE DEFENSES
Plaintiff, FEDERAL NATIONAL MORTGAGE ASSOCIATION, by and through its
undersigned counsel, files this reply to the affirmative defenses filed by Richard C. Peritz, and states:
1. Plaintiff hereby denies and avoids each and every affirmative defense presented by
Defendants and demands strict proof thereof.
2. The Defendants’ allegations contained within each affirmative defense of the Answer is
without proof and merit. As a result, the Defendant has failed to prove any defenses plead therein. The
Courts of this state have held that in pleading a defense, certainty will be insisted upon. 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 to provide the latter with a fair opportunity to meet it and
prepare his evidence. Zito v. Washington Federal Savings & Loan, 318 So.2d 175 (Fla. 3rd DCA 1975);
Citizens National Bank of Orlando v. Youngblood, 296 So.2d 92 (Fla. 4th DCA 1972); Walker v. Walker,
254 So.2d 832 (Fla. Ist DCA 1971).
3. Plaintiff hereby denies Defendant’s affirmative defense related to Plaintiff's failure to
provide notice, pursuant to Section 559.715, Florida Statutes, of the assignment of the mortgage and note.
Section 559.715 does not provide a civil remedy or affirmative defense to foreclosure for any violations
of its notice requirements. “Plaintiff attempts to avoid the statutory scheme by alleging. . .violation of
15-00977
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 7/5/2016 12:34:25 PM.****Section 559.715 constitutes an unlawful attempt to enforce a debt. . .The Plaintiff fails to show a
legislative intent to provide a civil remedy for violation of the notice provision.” Thomas v. Commercial
Recovery Systems, Inc., 2008 WL 5246296 (M.D. Fla. 2008). Further, section 559.715 is only applicable
to the collection of consumer debts and does not apply to the foreclosure of a mortgage and note. Section
559.715 clearly states: “Assignment of consumer debts.--This part does not prohibit the assignment, by a
creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor
written notice of such assignment within 30 days after the assignment. The assignee is a real party in
interest and may bring an action in a court of competent jurisdiction to collect a debt that has been
assigned to such assignee and is in default.” Plaintiff was the purchaser of the note and, as such, does not
fit within this statute. This statute applies to the scenario where the right to bill and collect a consumer
debt is sold to.a collection agency and the mortgage states that the note can be sold one or more times
without notice to the borrower. For these reasons this defense fails as a matter of law.
4. Plaintiff hereby denies Defendant’s affirmative defense related to the validity of
signatures, Defendant has failed to plead any facts to challenge the validity of signatures and Florida Law
places the burden of challenging the validity of the signatures squarely upon Defendant. According to
Section 673.3081, Florida Statutes: "...until some evidence is introduced which would support a finding
that the signature is forged or unauthorized, the plaintiff is not required to prove that it is valid...The
Defendant is therefore required to make some sufficient showing of the grounds for the denial before the
plaintiff is required to introduce evidence....Until introduction of such evidence the presumption requires
a finding for the plaintiff." “An endorsement on a note is self-authenticating pursuant to 90.902(8) and
signatures are presumed to be authentic. The statutory presumption is rebuttable by the borrower.”
Bennett v. Deutsche Nat’l., 124 So.3d 320 (Fla. 4 DCA 2013). The failure of Defendant to alleged any
factual basis to rebut the presumption of the validity of the signatures causes this defense fails as a matter
of law.
5. Plaintiff hereby denies Defendant’s affirmative defense of Plaintiff's failure to complete
the conditions precedent. Rule 1.120(c), Florida Rules of Civil Procedure, states that the "denial of
performance or occurrence shall be made specifically and with particularity". Defendants have not
15-00977alleged the failure of conditions precedent specifically nor with the requisite particularity. To the
contrary, Plaintiff complied with all conditions precedent, including the sending of required Notices prior
to institution of this action pursuant to the note and mortgage. “We affirm in all respects and write only
to address the Romans’ argument that a genuine issue of material fact should have precluded summary
judgment given their averment that they did not receive Wells Fargo’s notice of default. Because the
express language of the mortgage only required that Wells Fargo mail notice, not that the Romans receive
it, we reject the Romans’ argument. Wells Fargo established by affidavit that it mailed notice to the
Romans as required by the mortgage. That is the material fact.” Roman v. Wells Fargo Bank, (5D13-
2479 Fla. 5 DCA 2014). Evidence of a routine practice of an organization is admissible to prove that the
conduct of the organization on a particular occasion was in conformity with the routine practice. Florida
East Coast Properties v. Coastal Construction Products, Inc., 553 So.2d 705, 706 (Fla. 3d DCA 1989).
"The rule is that, when something is mailed by a business, it is presumed that the ordinary course of
business was followed in mailing it and that the mail was received by the addressee." Allstate Insurance
Co. v. Eckert, 472 So.2d 807, 809 (Fla. 4th DCA 1985) and Brown v. Giffen Industries, Inc. 281 So.2d
897, 900 (Fla. 1973). The proof of mailing creates the legal presumption of the receipt of that mail and
that presumption cannot be defeated by a mere denial that the mail was received. Scott v. Johnson, 386
So.2d 67, 69 (Fla. 3d DCA 1980). Clear and convincing factual evidence of proper mailing cannot be
rebutted merely by evidence that the document(s) was not received nor is it rebutted by the mere denial of
receipt and this defense fails as a matter of law. Allstate Insurance Company v. Dougherty, 197 So.2d
563, 566 (Fla. 3d DCA 1967).
6. Plaintiff hereby denies Defendant’s affirmative defense related to verification of
Plaintiff's complaint. Rule 1.110(b), Florida Rules of Civil Procedure, does not preclude the verification
of a foreclosure complaint by an employee of the loan’s servicer. U.S. Bank v. Marion, 122 So.3d 398
(Fla. 2d DCA 2013) and Deutsche Bank v. Prevratil, 120 So.3d 573 (Fla. 2d DCA 2013). Rule 1.110(b),
Florida Rules of Civil Procedure, states: “When filing an action for foreclosure of a mortgage on
15-00977residential real property the complaint shall be verified. When verification of a document is required, the
document filed shall include an oath, affirmation, or the following statement: 'Under penalty of perjury, I
declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my
knowledge and belief.” The clear wording of this rule mandates that the complaint be verified by a
sworn oath or affirmation. This rule does not mandate whether the filing party has to verify it, or whether
an agent, such as a loan servicer, can verify the complaint. "[U]nder a statute [or rule] requiring an
affidavit to be made by a particular person himself, his agent or attorney cannot make it, but if the statute
is silent as to who can make it, the [agent or] attorney can. An [agent or] attorney may make an affidavit
for a party if he knows the facts. It is within the discretion of the court to receive the affidavit of an agent
or attorney in situations where a different construction of the statute might defeat the ends of justice." S.
Attractions, Inc. v. Grau,93 So. 2d 120,124 25 (Fla. 1956) (citing 2 C.J.S., Affidavits, §§ 6). Rule
1.110(b) does not indicate that the plaintiff must verify the complaint. Accompanying the complaint,
Plaintiff filed a Verification of Foreclosure Complaint which contains the oath and was verified by the
loan servicer for Plaintiff. Using the Verification of Foreclosure, the loan servicer represented to the
Court that it is an authorized agent on Plaintiff s behalf. Often time, as in this action, the loan servicer has
all of the relevant business records on the loan which places it in the best position possible to verify the
facts of the complaint. As Florida Law allows the verification by a loan servicer this defense fails as a
matter of law.
7. Plaintiff hereby denies Defendant’s affirmative defense regarding Plaintiff's standing to
file the instant lawsuit. “No doctrine is better established than that possession of a note payable to bearer
by an agent or trustee is sufficient to sustain an action at law in his own name...If a note is endorsed in
blank, the court never inquires into the right of the plaintiff, whether he sues in his own right or as trustee.
Any person in possession of the note may sue, and may in court, if necessary, fill up the blank and make
it payable to himself.” Gregory v. McNealy, 12 Fla. 578 (Fla 1868). The Florida Rules of Civil Procedure
contain no requirement that all supporting documents be attached to a foreclosure complaint. The
allegations of the ownership of the subject note and mortgage are the only required documents. Plaintiff's
15-00977complaint made those representations and Plaintiff is in possession of the original note and mortgage,
both of which will be surrendered to this Court at the final hearing or non-jury trial. Where a note
secured by a mortgage is transferred without any formal assignment of the mortgage, the mortgage in
equity passes as an incident to the debt. Johns v. Gillian, 184 So. 140 (Fla. 1938). In an action to
foreclose a promissory note and mortgage, plaintiff has to be the "holder" of the promissory note in order
to be the real party in interest. Harvey v. Deutsche Bank, 69 So.3d (Fla 4% DCA 2011); Troupe v.
Redner, 652 So.2d 394 (Fla 2d DCA 1995), citing Withers v. Sandlin, 36 Fla. 619, 18 So. 856 (1896);
Laing v. Gainey Builders, Inc., 184 So. 2d 897 (Fla 1st DCA 1966). If a negotiable instrument is payable
to the bearer, the "holder" is the person or entity in possession. Section 671.201(20), Florida Statutes.
"Bearer" means the person in possession of an instrument, document of title, or certificated security
payable to bearer or indorsed in blank. Section 671.201(5), Florida Statutes. Since the original endorsed.
promissory note is in the possession of Plaintiff this defense fails as a matter of law.
WHEREFORE, Plaintiff requests this Honorable Court to grant Plaintiff's relief by striking the
Defendant’s Affirmative Defenses and for any other further relief the Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
regular U.S. Mail, Facsimile or electronic mail this f ) day of July, 2016 to all parties on the attached
service list.
Choice Legal Group, P.A.
P.O. Box 9908
Fort Lauderdale, Florida 33310-0908
Telephone: (954) 453-0365
Facsimile: (954) 771-6052
Toll Free: 1-800-441-2438
DESIGNATED PRIMARY EMAIL FOR SERVICE
PURSUANT TO FLA. R. JUD. ADM! 16
eservice@clegalgroup.com
By:
Verhonda Williams, Esq.
FBN 0092607
15-00977SERVICE LIST
Case No: CACE15012905
JOANN HENNESSEY, ESQ.
ATTORNEY FOR RICHARD C. PERITZ
3601 WEST COMMERCIAL BLVD., SUITE 18
FORT LAUDERDALE, FL 33309
NOTICES@CJAPL.COM
CYNTHIA A, BURFIELD A/K/A CYNTHIA ANN BURFIELD
2651 N ROCK ISLAND RD, APT 210
MARGATE, FL 33063
UNKNOWN TENANT
3940 CORAL HILLS DR
CORAL SPRINGS, FL 33065
15-00977
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Filing # 43538412 E-Filed 07/05/2016 12:34:26 PM IN THE SEVENTEENTH JUDICIAL CIRCUIT COURT, IN AND FOR BROWARD COUNTY, FLORIDA FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff, Me CASE NO.: CACE15012905 RICHARD C. PERITZ; CYNTHIA A. BURFIELD A/K/A CYNTHIA ANN BURFIELD; UNKNOWN TENANT; IN POSSESSION OF THE SUBJECT PROPERTY, Defendant(s). REPLY TO AFFIRMATIVE DEFENSES Plaintiff, FEDERAL NATIONAL MORTGAGE ASSOCIATION, by and through its undersigned counsel, files this reply to the affirmative defenses filed by Richard C. Peritz, and states: 1. Plaintiff hereby denies and avoids each and every affirmative defense presented by Defendants and demands strict proof thereof. 2. The Defendants’ allegations contained within each affirmative defense of the Answer is without proof and merit. As a result, the Defendant has failed to prove any defenses plead therein. The Courts of this state have held that in pleading a defense, certainty will be insisted upon. 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 to provide the latter with a fair opportunity to meet it and prepare his evidence. Zito v. Washington Federal Savings & Loan, 318 So.2d 175 (Fla. 3rd DCA 1975); Citizens National Bank of Orlando v. Youngblood, 296 So.2d 92 (Fla. 4th DCA 1972); Walker v. Walker, 254 So.2d 832 (Fla. Ist DCA 1971). 3. Plaintiff hereby denies Defendant’s affirmative defense related to Plaintiff's failure to provide notice, pursuant to Section 559.715, Florida Statutes, of the assignment of the mortgage and note. Section 559.715 does not provide a civil remedy or affirmative defense to foreclosure for any violations of its notice requirements. “Plaintiff attempts to avoid the statutory scheme by alleging. . .violation of 15-00977 *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 7/5/2016 12:34:25 PM.****Section 559.715 constitutes an unlawful attempt to enforce a debt. . .The Plaintiff fails to show a legislative intent to provide a civil remedy for violation of the notice provision.” Thomas v. Commercial Recovery Systems, Inc., 2008 WL 5246296 (M.D. Fla. 2008). Further, section 559.715 is only applicable to the collection of consumer debts and does not apply to the foreclosure of a mortgage and note. Section 559.715 clearly states: “Assignment of consumer debts.--This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment within 30 days after the assignment. The assignee is a real party in interest and may bring an action in a court of competent jurisdiction to collect a debt that has been assigned to such assignee and is in default.” Plaintiff was the purchaser of the note and, as such, does not fit within this statute. This statute applies to the scenario where the right to bill and collect a consumer debt is sold to.a collection agency and the mortgage states that the note can be sold one or more times without notice to the borrower. For these reasons this defense fails as a matter of law. 4. Plaintiff hereby denies Defendant’s affirmative defense related to the validity of signatures, Defendant has failed to plead any facts to challenge the validity of signatures and Florida Law places the burden of challenging the validity of the signatures squarely upon Defendant. According to Section 673.3081, Florida Statutes: "...until some evidence is introduced which would support a finding that the signature is forged or unauthorized, the plaintiff is not required to prove that it is valid...The Defendant is therefore required to make some sufficient showing of the grounds for the denial before the plaintiff is required to introduce evidence....Until introduction of such evidence the presumption requires a finding for the plaintiff." “An endorsement on a note is self-authenticating pursuant to 90.902(8) and signatures are presumed to be authentic. The statutory presumption is rebuttable by the borrower.” Bennett v. Deutsche Nat’l., 124 So.3d 320 (Fla. 4 DCA 2013). The failure of Defendant to alleged any factual basis to rebut the presumption of the validity of the signatures causes this defense fails as a matter of law. 5. Plaintiff hereby denies Defendant’s affirmative defense of Plaintiff's failure to complete the conditions precedent. Rule 1.120(c), Florida Rules of Civil Procedure, states that the "denial of performance or occurrence shall be made specifically and with particularity". Defendants have not 15-00977alleged the failure of conditions precedent specifically nor with the requisite particularity. To the contrary, Plaintiff complied with all conditions precedent, including the sending of required Notices prior to institution of this action pursuant to the note and mortgage. “We affirm in all respects and write only to address the Romans’ argument that a genuine issue of material fact should have precluded summary judgment given their averment that they did not receive Wells Fargo’s notice of default. Because the express language of the mortgage only required that Wells Fargo mail notice, not that the Romans receive it, we reject the Romans’ argument. Wells Fargo established by affidavit that it mailed notice to the Romans as required by the mortgage. That is the material fact.” Roman v. Wells Fargo Bank, (5D13- 2479 Fla. 5 DCA 2014). Evidence of a routine practice of an organization is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice. Florida East Coast Properties v. Coastal Construction Products, Inc., 553 So.2d 705, 706 (Fla. 3d DCA 1989). "The rule is that, when something is mailed by a business, it is presumed that the ordinary course of business was followed in mailing it and that the mail was received by the addressee." Allstate Insurance Co. v. Eckert, 472 So.2d 807, 809 (Fla. 4th DCA 1985) and Brown v. Giffen Industries, Inc. 281 So.2d 897, 900 (Fla. 1973). The proof of mailing creates the legal presumption of the receipt of that mail and that presumption cannot be defeated by a mere denial that the mail was received. Scott v. Johnson, 386 So.2d 67, 69 (Fla. 3d DCA 1980). Clear and convincing factual evidence of proper mailing cannot be rebutted merely by evidence that the document(s) was not received nor is it rebutted by the mere denial of receipt and this defense fails as a matter of law. Allstate Insurance Company v. Dougherty, 197 So.2d 563, 566 (Fla. 3d DCA 1967). 6. Plaintiff hereby denies Defendant’s affirmative defense related to verification of Plaintiff's complaint. Rule 1.110(b), Florida Rules of Civil Procedure, does not preclude the verification of a foreclosure complaint by an employee of the loan’s servicer. U.S. Bank v. Marion, 122 So.3d 398 (Fla. 2d DCA 2013) and Deutsche Bank v. Prevratil, 120 So.3d 573 (Fla. 2d DCA 2013). Rule 1.110(b), Florida Rules of Civil Procedure, states: “When filing an action for foreclosure of a mortgage on 15-00977residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement: 'Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.” The clear wording of this rule mandates that the complaint be verified by a sworn oath or affirmation. This rule does not mandate whether the filing party has to verify it, or whether an agent, such as a loan servicer, can verify the complaint. "[U]nder a statute [or rule] requiring an affidavit to be made by a particular person himself, his agent or attorney cannot make it, but if the statute is silent as to who can make it, the [agent or] attorney can. An [agent or] attorney may make an affidavit for a party if he knows the facts. It is within the discretion of the court to receive the affidavit of an agent or attorney in situations where a different construction of the statute might defeat the ends of justice." S. Attractions, Inc. v. Grau,93 So. 2d 120,124 25 (Fla. 1956) (citing 2 C.J.S., Affidavits, §§ 6). Rule 1.110(b) does not indicate that the plaintiff must verify the complaint. Accompanying the complaint, Plaintiff filed a Verification of Foreclosure Complaint which contains the oath and was verified by the loan servicer for Plaintiff. Using the Verification of Foreclosure, the loan servicer represented to the Court that it is an authorized agent on Plaintiff s behalf. Often time, as in this action, the loan servicer has all of the relevant business records on the loan which places it in the best position possible to verify the facts of the complaint. As Florida Law allows the verification by a loan servicer this defense fails as a matter of law. 7. Plaintiff hereby denies Defendant’s affirmative defense regarding Plaintiff's standing to file the instant lawsuit. “No doctrine is better established than that possession of a note payable to bearer by an agent or trustee is sufficient to sustain an action at law in his own name...If a note is endorsed in blank, the court never inquires into the right of the plaintiff, whether he sues in his own right or as trustee. Any person in possession of the note may sue, and may in court, if necessary, fill up the blank and make it payable to himself.” Gregory v. McNealy, 12 Fla. 578 (Fla 1868). The Florida Rules of Civil Procedure contain no requirement that all supporting documents be attached to a foreclosure complaint. The allegations of the ownership of the subject note and mortgage are the only required documents. Plaintiff's 15-00977complaint made those representations and Plaintiff is in possession of the original note and mortgage, both of which will be surrendered to this Court at the final hearing or non-jury trial. Where a note secured by a mortgage is transferred without any formal assignment of the mortgage, the mortgage in equity passes as an incident to the debt. Johns v. Gillian, 184 So. 140 (Fla. 1938). In an action to foreclose a promissory note and mortgage, plaintiff has to be the "holder" of the promissory note in order to be the real party in interest. Harvey v. Deutsche Bank, 69 So.3d (Fla 4% DCA 2011); Troupe v. Redner, 652 So.2d 394 (Fla 2d DCA 1995), citing Withers v. Sandlin, 36 Fla. 619, 18 So. 856 (1896); Laing v. Gainey Builders, Inc., 184 So. 2d 897 (Fla 1st DCA 1966). If a negotiable instrument is payable to the bearer, the "holder" is the person or entity in possession. Section 671.201(20), Florida Statutes. "Bearer" means the person in possession of an instrument, document of title, or certificated security payable to bearer or indorsed in blank. Section 671.201(5), Florida Statutes. Since the original endorsed. promissory note is in the possession of Plaintiff this defense fails as a matter of law. WHEREFORE, Plaintiff requests this Honorable Court to grant Plaintiff's relief by striking the Defendant’s Affirmative Defenses and for any other further relief the Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by regular U.S. Mail, Facsimile or electronic mail this f ) day of July, 2016 to all parties on the attached service list. Choice Legal Group, P.A. P.O. Box 9908 Fort Lauderdale, Florida 33310-0908 Telephone: (954) 453-0365 Facsimile: (954) 771-6052 Toll Free: 1-800-441-2438 DESIGNATED PRIMARY EMAIL FOR SERVICE PURSUANT TO FLA. R. JUD. ADM! 16 eservice@clegalgroup.com By: Verhonda Williams, Esq. FBN 0092607 15-00977SERVICE LIST Case No: CACE15012905 JOANN HENNESSEY, ESQ. ATTORNEY FOR RICHARD C. PERITZ 3601 WEST COMMERCIAL BLVD., SUITE 18 FORT LAUDERDALE, FL 33309 NOTICES@CJAPL.COM CYNTHIA A, BURFIELD A/K/A CYNTHIA ANN BURFIELD 2651 N ROCK ISLAND RD, APT 210 MARGATE, FL 33063 UNKNOWN TENANT 3940 CORAL HILLS DR CORAL SPRINGS, FL 33065 15-00977