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¥* FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 8/23/2013 11:32:11 AM.****
Electronically Filed 08/23/2013 11:32:10 AM ET
IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO.: CACE-12-032144 (11)
JPMORGAN CHASE BANK, N.A., successor in
interest by purchase from THE FEDERAL
DEPOSIT INSURANCE CORPORATION, as
receiver for WASHINGTON MUTUAL BANK
f/k/a WASHINGTON MUTUAL BANK, F.A.,
Plaintiff,
LUIS G. BONELLI, et al.,
Defendants.
/
ANSWER AND AFFIRMATIVE DEFENSES
Defendant, COUNTRY SQUIRE TOWNHOMES CONDOMINIUM, INC., PHASE 1, a
Florida not-for-profit corporation (hereinafter “Association”), by and through its undersigned
counsel and pursuant to Florida Rule of Civil Procedure 1.140, hereby files its Answer and
Affirmative Defenses to Plaintiff's Verified Amended Complaint as follows:
ACTION TO FORECLOSE MORTGAGE
1. Association admits the allegations of Paragraph 1 of Plaintiff’s amended complaint for
jurisdictional purposes only.
2. Association admits the recording information but is without knowledge as to the truth of
the remaining allegations of Paragraph 2 of Plaintiff's amended complaint, therefore,
denies the same.
3. Association is without knowledge as to the truth of the allegations of Paragraph 3 of
Plaintiffs amended complaint, therefore, denies the same.10.
11.
12.
13.
14.
15.
Association is without knowledge as to the truth of the allegations of Paragraph 4 of
Plaintiffs amended complaint, therefore, denies the same.
Association admits the allegations of Paragraph 5 of Plaintiff's amended complaint.
Association is without knowledge as to the truth of the allegations of Paragraph 6 of
Plaintiff's amended complaint, therefore, denies the same.
Association is without knowledge as to the truth of the allegations of Paragraph 7 of
Plaintiff's amended complaint, therefore, denies the same.
Association is without knowledge as to the truth of the allegations of Paragraph 8 of
Plaintiff's amended complaint, therefore, denies the same.
Association admits the allegations of Paragraph 9 of Plaintiff’s amended complaint.
Association admits the allegations of Paragraph 10 of Plaintiff's amended complaint.
Association is without knowledge as to the truth of the allegations of Paragraph 11 of
Plaintiff's amended complaint, therefore, denies the same.
Association denies the allegations of Paragraph 12 of Plaintiff’s amended complaint.
Association is without knowledge as to the truth of the allegations of Paragraph 13 of
Plaintiff's amended complaint, therefore, denies the same.
Association is without knowledge as to the truth of the allegations of Paragraph 14 of
Plaintiff's amended complaint, therefore, denies the same.
FIRST AFFIRMATIVE DEFENSE
Pursuant to section 718.116(5)(a), Florida Statutes, Association’s lien is effective from
the recording of the declaration of condominium, except as to first mortgagees.16. Plaintiff's mortgage is junior to a mortgage in favor of Transouth Mortgage Corporation
recorded on or about February 23, 1998, in the Official Records Book 27755, at page
887, of the Public Records of Broward County, Florida, which is unsatisfied of record.
17. As such, Plaintiff's mortgage is not the first mortgage on the subject property.
18. Plaintiff’s interest is junior to Association’s lien for unpaid assessments because it is not
the first mortgage on the subject property.
WHEREFORE, Association requests that the Court hold that Association’s lien for
unpaid assessments is superior to Plaintiff’s interest in the subject property, dismiss this cause as
to Association, and grant any other relief that is just and proper.
SECOND AFFIRMATIVE DEFENSE
19. Pursuant to section 718.116(1)(a), Florida Statutes, a unit owner, regardless of how his
title is acquired, including a purchaser at foreclosure sale, is obligated to pay all
assessments that came due prior to his acquisition of title.
20. Pursuant to section 718.116(1)(b)1, Florida Statutes (hereinafter “Safe Harbor”
provision), a first mortgagee or successor or assignee of a first mortgagee who acquires
title to a condominium unit by foreclosure of its mortgage is liable for 12 months of past
due assessments or 1% of the original mortgage debt, whichever is less.
21. Pursuant to section 718.116(1)(g), Florida Statutes, only a holder of the first mortgage is
considered a successor or assignee of the first mortgage for protection under the Safe
Harbor provision.
22. Even if the Plaintiff is entitled to foreclose on the subject mortgage as an equitable holder
of the mortgage, section 718.116(1)(g), Florida Statutes, requires it to be the physical
holder of the mortgage to be eligible for Safe Harbor provision.23. Upon information and belief, Plaintiff is not in physical possession of the first mortgage.
WHEREFORE, Association prays, in the event Plaintiff is successful in this action for
foreclosure, that this Court holds that Plaintiff's judgment in foreclosure is subject to
Association’s continuing lien for the payment of all past due assessments, special assessments,
late fees, interest, costs, and attorneys’ fees, and for any other relief this Court deems just and
proper.
THIRD AFFIRMATIVE DEFENSE
24. Even if Plaintiff is the holder of the first mortgage, pursuant to the Safe Harbor provision,
if Plaintiff acquires title to the subject property at foreclosure sale or deed in lieu of
foreclosure, it is liable to Association for past due assessments for 12 months or 1% of
the original mortgage debt, whichever is less.
WHEREFORE, Association prays, in the event this Court finds that Plaintiff is the holder
of the first mortgage and Plaintiff acquires title to the subject property at foreclosure sale or by
deed in lieu of foreclosure, that this Court enter final judgment in foreclosure subject to
Association’s rights under the Safe Harbor Provision for past due assessments, and for the full
payment of special assessments, late fees, interest, costs, and attorneys’ fees, and for any other
relief this Court deems just and proper.
FOURTH AFFIRMATIVE DEFENSE
25. Pursuant to section 718.116(1)(a), Florida Statutes, a unit owner, regardless of how his
title is acquired, including at foreclosure sale, is jointly and severally liable for the
payment of assessments, special assessments, late fees, interest, costs, and attorneys’ fees
that came due prior to his acquisition of title.26. The Safe Harbor provision only excludes holders of first mortgages from this general
liability.
27. A third-party purchaser at foreclosure sale or deed in lieu of foreclosure is fully liable for
all assessments, special assessments, late fees, interest, costs, and attorneys’ fees that
came due prior to the acquisition of title.
WHEREFORE, Association prays, in the event a third-party purchaser acquires title to
the subject property at foreclosure sale or by deed in lieu of foreclosure, that Plaintiff's final
judgment and the third-party purchaser’s title be subject to Association’s continuing lien for the
payment of all assessments, special assessments, late fees, interest, costs, and attorneys’ fees, and
for any other relief this Court deems just and proper.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to
all on the attached service list this 23" day of August, 2013.
s/ Gian Ratnapala, Esq.
Florida Bar No,: 97342
gian @peytonbolin.com
bankforeclosure @ peytonbolin.com
Attorney for Defendant Country Squire
Townhomes Association, Inc.
PeytonBolin, PL
4758 West Commercial Boulevard
Fort Lauderdale, Florida 33319
Telephone: (954) 316-1339
Facsimile: (954) 727-5776SERVICE LIST
CASE NO.: CACE-12-032144 (11)
VIA E-MAIL:
Phelan Hallinana, PLC
Attorney for Plaintiff
FL.Service@ phelanhallinan.com
VIA U.S. MAIL:
Luis G. Bonelli
224 NW 107" Way
Coral Springs, FL 33071
Claudia H. Bonelli
224 NW 107" Way
Coral Springs, FL 33071
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¥* FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 8/23/2013 11:32:11 AM.**** Electronically Filed 08/23/2013 11:32:10 AM ET IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-12-032144 (11) JPMORGAN CHASE BANK, N.A., successor in interest by purchase from THE FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver for WASHINGTON MUTUAL BANK f/k/a WASHINGTON MUTUAL BANK, F.A., Plaintiff, LUIS G. BONELLI, et al., Defendants. / ANSWER AND AFFIRMATIVE DEFENSES Defendant, COUNTRY SQUIRE TOWNHOMES CONDOMINIUM, INC., PHASE 1, a Florida not-for-profit corporation (hereinafter “Association”), by and through its undersigned counsel and pursuant to Florida Rule of Civil Procedure 1.140, hereby files its Answer and Affirmative Defenses to Plaintiff's Verified Amended Complaint as follows: ACTION TO FORECLOSE MORTGAGE 1. Association admits the allegations of Paragraph 1 of Plaintiff’s amended complaint for jurisdictional purposes only. 2. Association admits the recording information but is without knowledge as to the truth of the remaining allegations of Paragraph 2 of Plaintiff's amended complaint, therefore, denies the same. 3. Association is without knowledge as to the truth of the allegations of Paragraph 3 of Plaintiffs amended complaint, therefore, denies the same.10. 11. 12. 13. 14. 15. Association is without knowledge as to the truth of the allegations of Paragraph 4 of Plaintiffs amended complaint, therefore, denies the same. Association admits the allegations of Paragraph 5 of Plaintiff's amended complaint. Association is without knowledge as to the truth of the allegations of Paragraph 6 of Plaintiff's amended complaint, therefore, denies the same. Association is without knowledge as to the truth of the allegations of Paragraph 7 of Plaintiff's amended complaint, therefore, denies the same. Association is without knowledge as to the truth of the allegations of Paragraph 8 of Plaintiff's amended complaint, therefore, denies the same. Association admits the allegations of Paragraph 9 of Plaintiff’s amended complaint. Association admits the allegations of Paragraph 10 of Plaintiff's amended complaint. Association is without knowledge as to the truth of the allegations of Paragraph 11 of Plaintiff's amended complaint, therefore, denies the same. Association denies the allegations of Paragraph 12 of Plaintiff’s amended complaint. Association is without knowledge as to the truth of the allegations of Paragraph 13 of Plaintiff's amended complaint, therefore, denies the same. Association is without knowledge as to the truth of the allegations of Paragraph 14 of Plaintiff's amended complaint, therefore, denies the same. FIRST AFFIRMATIVE DEFENSE Pursuant to section 718.116(5)(a), Florida Statutes, Association’s lien is effective from the recording of the declaration of condominium, except as to first mortgagees.16. Plaintiff's mortgage is junior to a mortgage in favor of Transouth Mortgage Corporation recorded on or about February 23, 1998, in the Official Records Book 27755, at page 887, of the Public Records of Broward County, Florida, which is unsatisfied of record. 17. As such, Plaintiff's mortgage is not the first mortgage on the subject property. 18. Plaintiff’s interest is junior to Association’s lien for unpaid assessments because it is not the first mortgage on the subject property. WHEREFORE, Association requests that the Court hold that Association’s lien for unpaid assessments is superior to Plaintiff’s interest in the subject property, dismiss this cause as to Association, and grant any other relief that is just and proper. SECOND AFFIRMATIVE DEFENSE 19. Pursuant to section 718.116(1)(a), Florida Statutes, a unit owner, regardless of how his title is acquired, including a purchaser at foreclosure sale, is obligated to pay all assessments that came due prior to his acquisition of title. 20. Pursuant to section 718.116(1)(b)1, Florida Statutes (hereinafter “Safe Harbor” provision), a first mortgagee or successor or assignee of a first mortgagee who acquires title to a condominium unit by foreclosure of its mortgage is liable for 12 months of past due assessments or 1% of the original mortgage debt, whichever is less. 21. Pursuant to section 718.116(1)(g), Florida Statutes, only a holder of the first mortgage is considered a successor or assignee of the first mortgage for protection under the Safe Harbor provision. 22. Even if the Plaintiff is entitled to foreclose on the subject mortgage as an equitable holder of the mortgage, section 718.116(1)(g), Florida Statutes, requires it to be the physical holder of the mortgage to be eligible for Safe Harbor provision.23. Upon information and belief, Plaintiff is not in physical possession of the first mortgage. WHEREFORE, Association prays, in the event Plaintiff is successful in this action for foreclosure, that this Court holds that Plaintiff's judgment in foreclosure is subject to Association’s continuing lien for the payment of all past due assessments, special assessments, late fees, interest, costs, and attorneys’ fees, and for any other relief this Court deems just and proper. THIRD AFFIRMATIVE DEFENSE 24. Even if Plaintiff is the holder of the first mortgage, pursuant to the Safe Harbor provision, if Plaintiff acquires title to the subject property at foreclosure sale or deed in lieu of foreclosure, it is liable to Association for past due assessments for 12 months or 1% of the original mortgage debt, whichever is less. WHEREFORE, Association prays, in the event this Court finds that Plaintiff is the holder of the first mortgage and Plaintiff acquires title to the subject property at foreclosure sale or by deed in lieu of foreclosure, that this Court enter final judgment in foreclosure subject to Association’s rights under the Safe Harbor Provision for past due assessments, and for the full payment of special assessments, late fees, interest, costs, and attorneys’ fees, and for any other relief this Court deems just and proper. FOURTH AFFIRMATIVE DEFENSE 25. Pursuant to section 718.116(1)(a), Florida Statutes, a unit owner, regardless of how his title is acquired, including at foreclosure sale, is jointly and severally liable for the payment of assessments, special assessments, late fees, interest, costs, and attorneys’ fees that came due prior to his acquisition of title.26. The Safe Harbor provision only excludes holders of first mortgages from this general liability. 27. A third-party purchaser at foreclosure sale or deed in lieu of foreclosure is fully liable for all assessments, special assessments, late fees, interest, costs, and attorneys’ fees that came due prior to the acquisition of title. WHEREFORE, Association prays, in the event a third-party purchaser acquires title to the subject property at foreclosure sale or by deed in lieu of foreclosure, that Plaintiff's final judgment and the third-party purchaser’s title be subject to Association’s continuing lien for the payment of all assessments, special assessments, late fees, interest, costs, and attorneys’ fees, and for any other relief this Court deems just and proper. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to all on the attached service list this 23" day of August, 2013. s/ Gian Ratnapala, Esq. Florida Bar No,: 97342 gian @peytonbolin.com bankforeclosure @ peytonbolin.com Attorney for Defendant Country Squire Townhomes Association, Inc. PeytonBolin, PL 4758 West Commercial Boulevard Fort Lauderdale, Florida 33319 Telephone: (954) 316-1339 Facsimile: (954) 727-5776SERVICE LIST CASE NO.: CACE-12-032144 (11) VIA E-MAIL: Phelan Hallinana, PLC Attorney for Plaintiff FL.Service@ phelanhallinan.com VIA U.S. MAIL: Luis G. Bonelli 224 NW 107" Way Coral Springs, FL 33071 Claudia H. Bonelli 224 NW 107" Way Coral Springs, FL 33071