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IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA.
CASE NO.: CACE 12-003687 (11)
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE
FOR THE C-BASS MORTGAGE LOAN ASSET-
BACKED CERTIFICATES, SERIES 2006-RP2,
s
PLAINTIFF, = 5
VS. i =
ee
GLORIA FINNO and TONY P. FINNO, et al; a> 2
= Xt
DEFENDANTS. PL
/ RS
oc
PLAINTIFF'S RESPONSE TO AFFIRMATIVE DEFENSES
Plaintiff U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE C-BASS
MORTGAGE.LOAN ASSET-BACKED CERTIFICATES, SERIES 2006-RP2,.by and through ‘the
undersigned, counsel, files this: Response to: Affirmative Defenses, and requests this court deny or
strike said Affirmative Defenses: filed by Defendants, GLORIA’ FINNO arid TONY'P P. FINNO, and
states as grounds as follows:
1. Plaintiff filed a Complaint against Defendant.
2. Thereafter, Defendant served an Answer and Affirmative Defenses to the Complaint upon
Plaintiff.
3. In his Answer, Defendant attempted to allege Affirmative Defenses. Each of the
Affirmative Defenses is legally insufficient and, therefore, must be stricken pursuant to
Rule 1.140, Fla. R. Civ. P.
4. An affirmative defense does not merely deny the facts of the opposing party's claim;
rather, it must raise some new matter that defeats the opposing party's otherwise valid
claim. Tropical Exterminators, Inc. v. Murray, 171 So.2d 432, 433 (Fla. 2d DCA 1965);
see also, Langford v. McCormick, 552 So.2d 964, 967 (Fla. 1** DCA 1989)(an affirmative
defense. is any, matter that avoids an: action and: that,. under applicable’ law, | intust st be
affirmatively.established-by the defendant): 7 i
5. Rule 1.140(b), Florida -Rules. of Civil, Procedure, requires. any defense to be’ "stated
specifically and with particularity." [t is also necessary to allege all the elements of an; Pe e eek in
affirmative defense. Yaeger v. Lora Realty, Inc., 245 So.2d 890, 891 (Fla. 34 DCA
1971).
As noted by the Court in Cady v. Chevy Chase Savings and Loan, Inc., 528 So.2d 136,
138 (Fla. 4th DCA 1988), "[c]ertainty is required when pleading defenses, and pleading _
conclusions of law unsupported by allegations of ultimate fact is legally insufficient."
See also Bliss v. Carmona, 418 So. 2d 1017 (Fla. 3 DCA 1982).
An affirmative defense shall fail if it is legally insufficient. Thompson v. Bank of New
York, 862 So. 2d 768 (Fla. 4th DCA 2003); see also, Rule 1.140 (f), Fla. R. Civ. P.
Defendant’s affirmative defenses fail to allege the ultimate facts and elements upon
which the defenses are based and therefore fail. to meet the requirements of Florida law
for affirmative defenses and may not be considered as valid defenses. Thompson v. Bank
of New York, 862 So. 2d at 771.
Defendant’s Affirmative Defenses are legally insufficient in that they are not proper
affirmative defenses. Further the defenses fail to allege the facts and elements of a
legally cognizable affirmative defense and are a mere denial and conclusion of law.
. Defendant’s Affirmative Defenses include alleged facts and allegations, which do not
create valid Affirmative Defenses in that they do not create a legal position that would
defeat Plaintiff's allegations in the Complaint.
. Defendant has failed to set forth any ultimate facts to support the alleged Affirmative
Defenses; accordingly, such defenses are fatally deficient and must fail as a matter of law.
Notwithstanding the material defects as set forth herein, Plaintiff denies and avoids each
and every Affirmative Defense set forth by Defendant and demands strict proof thereof.
. Plaintiff hereby denies and avoids Defendants’ First Affirmative Defense regarding
failure to state a claim and demands strict proof thereof. Defendants’ Affirmative
Defense as asserted fails to state any ultimate facts as mandated by Fla.R.Civ.P. 1.110,
and is stated in a vague and conclusory fashion. Accordingly, such defense is fatally
deficient and must fail as a matter of law.
. Plaintiff hereby denies and avoids Defendants’ Second Affirmative Defense regarding
Plaintiff contributing to its own negligence and demands strict proof thereof.
Defendants’ Affirmative Defense as asserted fails to state any ultimate facts as mandated
by Fla.R.Civ.P. 1.110, and is stated in a vague and conclusory. fashion. Accordingly, such
defense is fatally deficient and must fail as a matter of law.14.
18.
19.
20.
Plaintiff hereby denies and avoids Defendants’ Third Affirmative Defense regarding
failure to join all dispensable parties, and demands strict proof thereof. Defendants’
Affirmative Defense as asserted fails to state any ultimate facts as mandated by
Fla.R.Civ.P. 1.110, and is stated in a vague and conclusory fashion. Accordingly, such
defense is fatally deficient and must fail as a matter of law.
. Plaintiff hereby denies and avoids Defendants’ Fourth Affirmative Defense regarding
insufficient process and service, and demands strict proof thereof. Defendants’
Affirmative Defense as asserted fails to state any ultimate facts as mandated by
Fla.R.Civ.P. 1.110, and is stated in a vague and conclusory fashion. Accordingly, such
defense is fatally deficient and must fail as a matter of law.
. Plaintiff hereby denies and avoids Defendants’ Fifth Affirmative Defense regarding
failure to state a cause of action, and demands strict proof thereof. Defendants’
Affirmative Defense as asserted fails to state any ultimate facts as mandated by
Fla.R.Civ.P. 1.110, and is stated in a vague and conclusory fashion. Accordingly, such
defense is fatally deficient and must fail as a matter of law.
. Plaintiff hereby denies and avoids Defendants’ Sixth Affirmative Defense regarding
failure to mitigate damages, and demands strict proof thereof. Defendants’ Affirmative
Defense as asserted fails to state any ultimate facts as mandated by Fla.R.CivP. 1.1 10,
and is stated in a vague and conclusory fashion. Accordingly, such defense is fatally
deficient and must fail as a matter of law. 7
Plaintiff hereby denies and avoids Defendants’ Seventh Affirmative Defense regarding
Plaintiff waiving its right to recovery, and demands strict proof thereof. Defendants’
Affirmative Defense as asserted fails to state any ultimate facts as mandated by
FlaR.Civ.P. 1.1 10, and is stated in a vague and conclusory fashion. Accordingly, such
defense is fatally deficient and must fail as a matter of law. | om mas
Plaintiff hereby denies and avoids Defendants’ Eighth Affirmative Defense regarding
Plaintiff's damages being beyond the control of Defendants, and demands strict proof
thereof. Defendants’ Affirmative Defense as asserted fails to state any ultimate facts as
mandated by Fla.R.Civ.P. 1.110, and is stated in a vague and conclusory fashion.
Accordingly, such defense is fatally deficient and must fail as a matter of law.
Plaintiff hereby denies and avoids Defendants’ Ninth Affirmative Defense regarding
unclean hands and demands strict proof thereof. This defense is alleged in vague and21.
22.
23.
conclusory terms contrary to the mandate of Fla.R.Civ.P. 1.110, and fails to state any
ultimate facts whatsoever documenting specific illegal or fraudulent conduct
demonstrating unclean hands, thereby rendering it impossible to ascertain and defend
alleged wrongful behavior by Plaintiff. Before this equitable intervention can be used to
stop a foreclosure action, specific factual showings must be pled with specificity,
documenting actual participation in illegal or fiaudulent conduct: See, FlaR.Civ.P.1.120
(b). Ea
Plaintiff hereby denies and avoids Defendants’ Tenth Affirmative Defense regarding
unfair and predatory lending practices and demands strict proof thereof. This defense is
alleged in vague and conclusory terms contrary to the mandate of Fla.R:Civ.P. 1.11 0, and
fails to state any ultimate facts whatsoever documenting specific illegal or fraudulent
conduct demonstrating unclean hands, thereby rendering it impossible to ascertain and
defend alleged wrongful behavior by Plaintiff. Before this equitable intervention can be
used to stop a foreclosure action, specific factual showings must be pled. with specificity,
documenting actual participation in illegal or fraudulent conduct. See, Fla. R. Civ.P.1.120
(b).
Plaintiff denies and avoids Defendants Eleventh Affirmative Defense fraud and demands
strict proof thereof. Pursuant to Florida Rules of Civil Procedure, Rule 1. 120(b), “(ijn all
averments of fraud or mistake, the circumstances constituting fraud or mistake shall be
stated with such particularity as the circumstances may permit. ai Furthermore, the Fourth
District Court of Appeal has held that, because of litigants’ proclivity to loosely sling the
term ‘fraud’ into pleadings, the law requires that fraud be described with precision.
Thompson v. Bank of New York, 862 So. 2d 768 (Fla. 4th DCA 2003). ,
Plaintiff hereby denies and avoids Defendants’ Twelfth Affirmative Defense regarding
entitlement to rescission of the loan via violations of FI lorida Fair Debt and Collection
Act, Federal Lending Regulations, Regulation Z, and RESPA, ‘and demands strict proof
thereof. This defense is alleged in vague and conclusory terms contrary to the mandate of
Fla.R.Civ.P. 1.110, and fails to state any ultimate facts whatsoever documenting specific
illegal or fraudulent conduct demonstrating unclean hands, thereby rendering it
impossible to ascertain and defend alleged wrongful behavior by Plaintiff. Before this
equitable intervention can be used to stop a foreclosure action, specific factual showings
must be pled with specificity, documenting actual participation in illegal or fraudulent
conduct. See, Fla.R.Civ.P.1.120 (b). 'e ae
24. Plaintiff asserts that should this court find’any or part of the Affirmative Defenses alleged
by Defendant are properly alleged, Plaintiff asserts that Defendant is barred from relief,
as Plaintiff asserts estoppel, laches, statute of limitation, payment, waiver, accord, fraud,
offset, as well as other equitable and legal defenses which precludes Defendant from
relief. Clee ;
25. Plaintiff requests any and all Affirmative Defenses be struck or shall be deemed without a
legal ‘or factual basis to overcome Summary Judgment, at or prior to the hearing of the
Motion for Final Summary Judgment in this matter. 7
26. Plaintiff has incurred legal fees and costs in the filing of this Motion
WHEREFORE, Plaintiff, respectfully requests that the Court strike and/or find the
Defendants’ Affirmative Defenses without legal or factual basis or merit, and enter judgment in its
favor of Plaintiff, together with pre-judgment interest, costs, and. reasonable attorney's fees incurred
to prosecute this case, together with such other and further relief the Court deems just and proper.
CLARFIELD, OKON, SALOMONE & PINCUS, PL
500 S. Australian Avenue, Suite 730
West Palm Beach, FL 33401
Telephone: (561) 713-1400CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that a true and correct copy of the eine has been furnished by
United States mail on a $-o0 2 toall parties listed below.
FBN 081974
MAILING LIST
Case Number: CACE 12-003687 (11)
Barry S. Mittelberg, Esquire
Attorney for Defendants Gloria Finno and Tony P. Finno
1700 North University Drive, Suite 300
Coral Springs, Florida 33071
Beneficial Florida, Inc.
C/o CT Corporation Systems Inc.
1200 South Pine Island Road
Plantation, FL 33324
Current Resident(s)
6103 NW I5" Street
Margate, Florida 33063
FESS GSI SSSA ICIS IO AGIA
Law Office of Clarfield, Okon, Salomone & Pincus, P.L.
Attorney for Plaintiff
500 Australian Avenue South, Suite 730
West Palm Beach, FL 33401
Preview
' e e. IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA. CASE NO.: CACE 12-003687 (11) U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE C-BASS MORTGAGE LOAN ASSET- BACKED CERTIFICATES, SERIES 2006-RP2, s PLAINTIFF, = 5 VS. i = ee GLORIA FINNO and TONY P. FINNO, et al; a> 2 = Xt DEFENDANTS. PL / RS oc PLAINTIFF'S RESPONSE TO AFFIRMATIVE DEFENSES Plaintiff U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE C-BASS MORTGAGE.LOAN ASSET-BACKED CERTIFICATES, SERIES 2006-RP2,.by and through ‘the undersigned, counsel, files this: Response to: Affirmative Defenses, and requests this court deny or strike said Affirmative Defenses: filed by Defendants, GLORIA’ FINNO arid TONY'P P. FINNO, and states as grounds as follows: 1. Plaintiff filed a Complaint against Defendant. 2. Thereafter, Defendant served an Answer and Affirmative Defenses to the Complaint upon Plaintiff. 3. In his Answer, Defendant attempted to allege Affirmative Defenses. Each of the Affirmative Defenses is legally insufficient and, therefore, must be stricken pursuant to Rule 1.140, Fla. R. Civ. P. 4. An affirmative defense does not merely deny the facts of the opposing party's claim; rather, it must raise some new matter that defeats the opposing party's otherwise valid claim. Tropical Exterminators, Inc. v. Murray, 171 So.2d 432, 433 (Fla. 2d DCA 1965); see also, Langford v. McCormick, 552 So.2d 964, 967 (Fla. 1** DCA 1989)(an affirmative defense. is any, matter that avoids an: action and: that,. under applicable’ law, | intust st be affirmatively.established-by the defendant): 7 i 5. Rule 1.140(b), Florida -Rules. of Civil, Procedure, requires. any defense to be’ "stated specifically and with particularity." [t is also necessary to allege all the elements of an; Pe e eek in affirmative defense. Yaeger v. Lora Realty, Inc., 245 So.2d 890, 891 (Fla. 34 DCA 1971). As noted by the Court in Cady v. Chevy Chase Savings and Loan, Inc., 528 So.2d 136, 138 (Fla. 4th DCA 1988), "[c]ertainty is required when pleading defenses, and pleading _ conclusions of law unsupported by allegations of ultimate fact is legally insufficient." See also Bliss v. Carmona, 418 So. 2d 1017 (Fla. 3 DCA 1982). An affirmative defense shall fail if it is legally insufficient. Thompson v. Bank of New York, 862 So. 2d 768 (Fla. 4th DCA 2003); see also, Rule 1.140 (f), Fla. R. Civ. P. Defendant’s affirmative defenses fail to allege the ultimate facts and elements upon which the defenses are based and therefore fail. to meet the requirements of Florida law for affirmative defenses and may not be considered as valid defenses. Thompson v. Bank of New York, 862 So. 2d at 771. Defendant’s Affirmative Defenses are legally insufficient in that they are not proper affirmative defenses. Further the defenses fail to allege the facts and elements of a legally cognizable affirmative defense and are a mere denial and conclusion of law. . Defendant’s Affirmative Defenses include alleged facts and allegations, which do not create valid Affirmative Defenses in that they do not create a legal position that would defeat Plaintiff's allegations in the Complaint. . Defendant has failed to set forth any ultimate facts to support the alleged Affirmative Defenses; accordingly, such defenses are fatally deficient and must fail as a matter of law. Notwithstanding the material defects as set forth herein, Plaintiff denies and avoids each and every Affirmative Defense set forth by Defendant and demands strict proof thereof. . Plaintiff hereby denies and avoids Defendants’ First Affirmative Defense regarding failure to state a claim and demands strict proof thereof. Defendants’ Affirmative Defense as asserted fails to state any ultimate facts as mandated by Fla.R.Civ.P. 1.110, and is stated in a vague and conclusory fashion. Accordingly, such defense is fatally deficient and must fail as a matter of law. . Plaintiff hereby denies and avoids Defendants’ Second Affirmative Defense regarding Plaintiff contributing to its own negligence and demands strict proof thereof. Defendants’ Affirmative Defense as asserted fails to state any ultimate facts as mandated by Fla.R.Civ.P. 1.110, and is stated in a vague and conclusory. fashion. Accordingly, such defense is fatally deficient and must fail as a matter of law.14. 18. 19. 20. Plaintiff hereby denies and avoids Defendants’ Third Affirmative Defense regarding failure to join all dispensable parties, and demands strict proof thereof. Defendants’ Affirmative Defense as asserted fails to state any ultimate facts as mandated by Fla.R.Civ.P. 1.110, and is stated in a vague and conclusory fashion. Accordingly, such defense is fatally deficient and must fail as a matter of law. . Plaintiff hereby denies and avoids Defendants’ Fourth Affirmative Defense regarding insufficient process and service, and demands strict proof thereof. Defendants’ Affirmative Defense as asserted fails to state any ultimate facts as mandated by Fla.R.Civ.P. 1.110, and is stated in a vague and conclusory fashion. Accordingly, such defense is fatally deficient and must fail as a matter of law. . Plaintiff hereby denies and avoids Defendants’ Fifth Affirmative Defense regarding failure to state a cause of action, and demands strict proof thereof. Defendants’ Affirmative Defense as asserted fails to state any ultimate facts as mandated by Fla.R.Civ.P. 1.110, and is stated in a vague and conclusory fashion. Accordingly, such defense is fatally deficient and must fail as a matter of law. . Plaintiff hereby denies and avoids Defendants’ Sixth Affirmative Defense regarding failure to mitigate damages, and demands strict proof thereof. Defendants’ Affirmative Defense as asserted fails to state any ultimate facts as mandated by Fla.R.CivP. 1.1 10, and is stated in a vague and conclusory fashion. Accordingly, such defense is fatally deficient and must fail as a matter of law. 7 Plaintiff hereby denies and avoids Defendants’ Seventh Affirmative Defense regarding Plaintiff waiving its right to recovery, and demands strict proof thereof. Defendants’ Affirmative Defense as asserted fails to state any ultimate facts as mandated by FlaR.Civ.P. 1.1 10, and is stated in a vague and conclusory fashion. Accordingly, such defense is fatally deficient and must fail as a matter of law. | om mas Plaintiff hereby denies and avoids Defendants’ Eighth Affirmative Defense regarding Plaintiff's damages being beyond the control of Defendants, and demands strict proof thereof. Defendants’ Affirmative Defense as asserted fails to state any ultimate facts as mandated by Fla.R.Civ.P. 1.110, and is stated in a vague and conclusory fashion. Accordingly, such defense is fatally deficient and must fail as a matter of law. Plaintiff hereby denies and avoids Defendants’ Ninth Affirmative Defense regarding unclean hands and demands strict proof thereof. This defense is alleged in vague and21. 22. 23. conclusory terms contrary to the mandate of Fla.R.Civ.P. 1.110, and fails to state any ultimate facts whatsoever documenting specific illegal or fraudulent conduct demonstrating unclean hands, thereby rendering it impossible to ascertain and defend alleged wrongful behavior by Plaintiff. Before this equitable intervention can be used to stop a foreclosure action, specific factual showings must be pled with specificity, documenting actual participation in illegal or fiaudulent conduct: See, FlaR.Civ.P.1.120 (b). Ea Plaintiff hereby denies and avoids Defendants’ Tenth Affirmative Defense regarding unfair and predatory lending practices and demands strict proof thereof. This defense is alleged in vague and conclusory terms contrary to the mandate of Fla.R:Civ.P. 1.11 0, and fails to state any ultimate facts whatsoever documenting specific illegal or fraudulent conduct demonstrating unclean hands, thereby rendering it impossible to ascertain and defend alleged wrongful behavior by Plaintiff. Before this equitable intervention can be used to stop a foreclosure action, specific factual showings must be pled. with specificity, documenting actual participation in illegal or fraudulent conduct. See, Fla. R. Civ.P.1.120 (b). Plaintiff denies and avoids Defendants Eleventh Affirmative Defense fraud and demands strict proof thereof. Pursuant to Florida Rules of Civil Procedure, Rule 1. 120(b), “(ijn all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with such particularity as the circumstances may permit. ai Furthermore, the Fourth District Court of Appeal has held that, because of litigants’ proclivity to loosely sling the term ‘fraud’ into pleadings, the law requires that fraud be described with precision. Thompson v. Bank of New York, 862 So. 2d 768 (Fla. 4th DCA 2003). , Plaintiff hereby denies and avoids Defendants’ Twelfth Affirmative Defense regarding entitlement to rescission of the loan via violations of FI lorida Fair Debt and Collection Act, Federal Lending Regulations, Regulation Z, and RESPA, ‘and demands strict proof thereof. This defense is alleged in vague and conclusory terms contrary to the mandate of Fla.R.Civ.P. 1.110, and fails to state any ultimate facts whatsoever documenting specific illegal or fraudulent conduct demonstrating unclean hands, thereby rendering it impossible to ascertain and defend alleged wrongful behavior by Plaintiff. Before this equitable intervention can be used to stop a foreclosure action, specific factual showings must be pled with specificity, documenting actual participation in illegal or fraudulent conduct. See, Fla.R.Civ.P.1.120 (b). 'e ae 24. Plaintiff asserts that should this court find’any or part of the Affirmative Defenses alleged by Defendant are properly alleged, Plaintiff asserts that Defendant is barred from relief, as Plaintiff asserts estoppel, laches, statute of limitation, payment, waiver, accord, fraud, offset, as well as other equitable and legal defenses which precludes Defendant from relief. Clee ; 25. Plaintiff requests any and all Affirmative Defenses be struck or shall be deemed without a legal ‘or factual basis to overcome Summary Judgment, at or prior to the hearing of the Motion for Final Summary Judgment in this matter. 7 26. Plaintiff has incurred legal fees and costs in the filing of this Motion WHEREFORE, Plaintiff, respectfully requests that the Court strike and/or find the Defendants’ Affirmative Defenses without legal or factual basis or merit, and enter judgment in its favor of Plaintiff, together with pre-judgment interest, costs, and. reasonable attorney's fees incurred to prosecute this case, together with such other and further relief the Court deems just and proper. CLARFIELD, OKON, SALOMONE & PINCUS, PL 500 S. Australian Avenue, Suite 730 West Palm Beach, FL 33401 Telephone: (561) 713-1400CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the eine has been furnished by United States mail on a $-o0 2 toall parties listed below. FBN 081974 MAILING LIST Case Number: CACE 12-003687 (11) Barry S. Mittelberg, Esquire Attorney for Defendants Gloria Finno and Tony P. Finno 1700 North University Drive, Suite 300 Coral Springs, Florida 33071 Beneficial Florida, Inc. C/o CT Corporation Systems Inc. 1200 South Pine Island Road Plantation, FL 33324 Current Resident(s) 6103 NW I5" Street Margate, Florida 33063 FESS GSI SSSA ICIS IO AGIA Law Office of Clarfield, Okon, Salomone & Pincus, P.L. Attorney for Plaintiff 500 Australian Avenue South, Suite 730 West Palm Beach, FL 33401