Preview
Filing # 74609726 E-Filed 07/09/2018 09:42:32 AM
IN. THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 2017-014524-CA-01
CIT BANK, N.A.,
Plaintiff,
vs.
HELEN V. ROLLE, et al.,
Defendants.
/
PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S,
HELEN V. ROLLE, AFFIRMATIVE DEFENSES
Plaintiff, CIT BANK, N.A., by and through undersigned counsel and pursuant to Florida
Rule of Civil Procedure 1.140, hereby files its Motion to Strike Defendant’s, HELEN V.
ROLLE, Affirmative Defenses, and in support thereof states as follows:
1. A motion to strike a defense tests only the legal sufficiency of the defense.”
Burns v, Equilease Corp., 357 So. 2d 786 (Fla. 3d DCA 1978). A motion to strike affirmative
defenses may be properly granted where the material allegations of fact contained in the defense
could be proven under the general issues or denials raised in the answer.” Mills v. Ball, 358 So.
2d 556 (Fla. Ist DCA 1978). A purported defense which is nothing more than denials or
conclusions of law must be stricken. Wiggins v. Protmay, 430 So. 2d 541 (Fla. 1st DCA 1983).
2. The allegations of the foreclosure Complaint against Defendant arise out of a
breach of the terms of the Note and Mortgage for a failure to maintain adequate insurance on the
property.
UVLO OAMARU
PAGE 1
17-044159 - VaS1. First Defense: Failure to State a Cause of Action/Unclean Hands. As an initial
matter, this defense is insufficiently pled pursuant to Fla.R.Civ.P. 1.110 because it incorporates
two separate defenses into one defense. Rule 1.110(f), Fla.R.Civ.P. states that “[a]ll averments
of claim or defense shall be made in consecutively numbered paragraphs, the contents of each of
which shall be limited as far as practicable to a statement of a single set of circumstances[.] ...
[E]ach defense other than denials shall be stated in a separate count or defense when separation
facilitates the clear presentation of the matter set forth.”
2. Notwithstanding the procedural defects, Defendant has failed to assert any
specific facts that would show that if in fact Defendant paid for hazard insurance, that the
insurance obtained was adequate and in compliance with the loan documents. A clear reading of
12 C.F.R. §1024.37(b) shows that when a Defendant is in default and has failed to comply with
the Mortgage’s requirements relating to hazard insurance, the servicer is permitted to obtain
forced placed insurance:
(b) Basis for charging borrower for force-placed insurance. A servicer may not
assess on a borrower a premium charge or fee related to force-placed insurance
unless the servicer has a reasonable basis to believe that the borrower has
failed to comply with the mortgage loan contract's requirement to maintain
hazard insurance. (Emphasis added).
Finally, since a requirement for forced placed insurance arises out of the loan documents, any
claim of unclean hands must be stricken. A failure to comply with the material terms of a loan
document may be a breach of contract, and it may not be nice, but it does not amount to unclean
hands. Cong. Park Office Condos II, LLC v. First-Citizens Bank & Trust Co., 105 So. 3d 602,
610 (Fla. 4th DCA 2013).
3. Second Defense: Subject Matter Jurisdiction. Whether or not Plaintiff has
unclean hands has no bearing on this court’s subject matter jurisdiction. Subject matter
PAGE 2
17-044159 - VaSjurisdiction means "the power of the court to adjudicate the class of cases to which the particular
case belongs.” VL Orlando Building Corp. v. AGD Hospitality Design & Purchasing, Inc., 762
So. 2d 956, 957 (Fla. 4th DCA 2000). For a court to have subject matter jurisdiction in a
foreclosure action, the action must be brought in the county where the land lies. See Cohen v.
Century Ventures, Inc., 163 So. 2d 799 (Fla. 2d DCA 1964). The property is located in Miami-
Dade County, which is where this action was initiated, and thus, the Court has subject matter
jurisdiction.
4. Third Defense: Original Documents. This is not a true affirmative defense to
foreclosure. “An affirmative defense is any matter that avoids the action and that, under
applicable law, the plaintiff is not bound to prove initially but the defendant must affirmatively
establish.” Langford v. McCormick, 552 So. 2d 964, 967 (Fla. 1st DCA 1989) (citing 40 Fla. Jur.
2d Pleadings, § 159 (1982)). Regardless, pursuant to Section 702.015, Florida Statutes, the
original Note is required to be filed prior to entry of final judgment. Id. Final Judgment has not
yet been entered, therefore Plaintiff is not yet required to file the original Note. In filing the
Complaint, Plaintiff is permitted to file copies of the Note to evidence its status as holder. Id
§702.015 (c).
5. Fourth Defense: Standing. Plaintiff has alleged in the Complaint that it holds
the Note and the Note attached to the Complaint contains a blank indorsement. One of the ways a
plaintiff can establish standing is as a note holder (i.e., a person in possession of the note
specially indorsed to it or indorsed in blank). §673.3011(1). See also Purificato v. Nationstar
Mortg., LLC, 182 So.3d 821, 823 (Fla. 4th DCA 2016) (“A plaintiff may establish standing by
proving that it was in possession of the note with a blank [i]ndorsement at the time it filed the
complaint.”); Ortiz v. PNC Bank, Nat'l Ass'n, 188 So.3d 923, 925 (Fla. 4th DCA 2016)
PAGE 3
17-044159 - VaS(possession of original not indorsed in blank at time suit is filed establishes standing). In this
case, Plaintiff asserts it has standing as a holder of a blank indorsed Note. Any argument that
Plaintiff must own the Note in order to enforce same should be stricken since Plaintiff is
proceeding as holder, not an owner. Wells Fargo Bank, N.A. v. Morcom, 125 So. 3d 320 (Fla. 5
DCA 2013) (bearer of note indorsed in blank has standing to foreclose even though it’s not the
owner, did not plead that it was proceeding in a representative capacity, and regardless of any
recorded assignments).
6. Fifth Defense: Accounting. This is not a true defense to foreclosure. Further,
Defendant has failed to allege what contract or other authority entitles her to an accounting. An
equitable accounting is properly pled only when the Defendant alleges that “the contract
demands between litigants involve extensive or complicated accounts and it is not clear that the
remedy at law is as full, adequate and expeditious as it is in equity.” Chiron v. Isram Wholesale
Tours and Travel, Ltd., 519 So. 2d 1102, 1103 (Fla. 3d DCA 1988) (citation omitted). Besides
the fact that this defense is inadequately pled, here, there is no such complexity nor inadequacy
of a legal remedy.
7. Sixth Defense: Authenticity. Defendant contests the authenticity of the signature
of the Decedent, Robert A. Rolle, on the Note, however, does not provide any specific facts that
would overcome the presumption of authenticity. Florida Statute section 673.3081 provides that
the authenticity of an instrument “is admitted unless specifically denied in the pleadings.” Fla.
Stat. § 673.3081(1). Furthermore, the loan originated in 2006 and the default did not occur until
ten (10) years later. Thus, Defendant ratified the contract by failing to timely raise the issue of
authenticity. See Bloom v. G.P.F, S.A., 588 So. 2d 607 (Fla. DCA 1991). “[A] party cannot have
it both ways” by deriving the benefit of the agreement while simultaneously attempting to have
PAGE 4
17-044159 - VaSthe document declared null and void. Jd. at 610.
8. Seventh Defense: This defense is duplicative of the Fourth Defense and must be
stricken on these grounds alone.
9. Eighth Defense: Conditions Precedent. This defense is insufficiently pled.
Florida Rule of Civil Procedure 1.120(c) establishes a special pleading rule in regard
to conditions precedent: “In pleading the performance or occurrence of conditions precedent, it is
sufficient to aver generally that all conditions precedent have been performed or have occurred.
A denial of performance or occurrence shall be made specifically and with particularity.” Under
this rule a plaintiff is allowed to allege in a generalized fashion that all the conditions
precedent to a cause of action, whatever they may be, have either occurred or been performed. A
defendant, as the responding party, shoulders the responsibility of identifying a specific,
unfulfilled condition precedent should it wish to deny that general averment. Bank of Am., Nat.
Ass'n v. Asbury, 165 So. 3d 808, 810 (Fla. 2d DCA 2015). Defendant has failed to specify what
conditions precedent Plaintiff allegedly failed to comply with. “Florida's pleading rule forces
counsel to recognize the elements of their cause of action and determine whether they have or
can develop the facts necessary to support it, which avoids a great deal of wasted expense to the
litigants and unnecessary judicial effort. Horowitz v. Laske, 855 So. 2d 169, 172-73 (Fla. 5th
DCA 2003).
10. Ninth Defense: Verification. As an initial matter, verification of a foreclosure
complaint is controlled by Rule 1.115(e), Fla.R.Civ.P. (2014 Amendment). All the Rule requires
for verification of a mortgage foreclosure complaint is that the Complaint contains the required
oath or affirmation, which Plaintiff's Complaint contains. The Rule “does not require that the
verification be based on personal knowledge. It requires only that the plaintiff verify that the facts
PAGE 5
17-044159 - VaSalleged therein are true and correct to the best of my knowledge and belief.” Deutsche Bank Nat'l
Trust Co. v. Prevtatil, 120 So. 3d 573 (Fla. 2d DCA 2013). Fla. Stat. §702.10, as cited in
Defendant’s defense, relates to Orders to Show Cause, which is not relevant to the instant action
and therefore must be stricken.
11. Finally, any request for the Court to dismiss the Complaint in the
“WHEREFORE” clause must be stricken as this is an Answer and Affirmative Defenses and not
a Motion to Dismiss.
WHERFORE, Plaintiff respectfully requests that the Court strike Defendant’s
Affirmative Defenses for the reasons stated herein and grant Plaintiff any such further relief as
this Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy hereof has been furnished to the parties |isted on the
attached sevice list by 0 e-mail; 0 hand-delivery; 1) mail; and/or 0 fax on this day of
2018.
ROBERTSON, ANSCHUTZ & SCHNEID, P.L.
Attorney for Plaintiff
6409 Congress Ave., Suite 100
Boca Raton, FL 33487
Telephone: $61.241-6901
Vay
eressa D. Sloat-Rogers
. Bar Number 353530
Comniuhication Email: idabek@rasflaw.com
PAGE 6
17-044159 - VaSSERVICE LIST
JAMES JEAN-FRANCOIS, P.A.
JAMES JEAN-FRANCOIS, ESQUIRE
ATTORNEY FOR HELEN V. ROLLE
C/O JAMES JEAN-FRANCOIS, P.A.
6100 HOLLYWOOD BOULEVARD, SUITE 211 DUTY FREE AMERICAS
HOLLYWOOD, FL 33024
PRIMARY EMAIL: JAMESJEANFRANCOISESQ@HOTMAIL.COM
SECONDARY EMAIL: JJONLAW@HOTMAIL.COM
UNITED STATES OF AMERICA, ON BEHALF OF THE SECRETARY OF HOUSING AND
URBAN DEVELOPMENT
99 NE 4TH STREET, 13TH FLOOR
MIAMI, FL 33132
UNKNOWN SPOUSE OF HELEN V. ROLLE
420 NW 183RD TERRACE
MIAMI, FL 33169
PAGE 7
17-044159 - VaS
Preview
Filing # 74609726 E-Filed 07/09/2018 09:42:32 AM IN. THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 2017-014524-CA-01 CIT BANK, N.A., Plaintiff, vs. HELEN V. ROLLE, et al., Defendants. / PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S, HELEN V. ROLLE, AFFIRMATIVE DEFENSES Plaintiff, CIT BANK, N.A., by and through undersigned counsel and pursuant to Florida Rule of Civil Procedure 1.140, hereby files its Motion to Strike Defendant’s, HELEN V. ROLLE, Affirmative Defenses, and in support thereof states as follows: 1. A motion to strike a defense tests only the legal sufficiency of the defense.” Burns v, Equilease Corp., 357 So. 2d 786 (Fla. 3d DCA 1978). A motion to strike affirmative defenses may be properly granted where the material allegations of fact contained in the defense could be proven under the general issues or denials raised in the answer.” Mills v. Ball, 358 So. 2d 556 (Fla. Ist DCA 1978). A purported defense which is nothing more than denials or conclusions of law must be stricken. Wiggins v. Protmay, 430 So. 2d 541 (Fla. 1st DCA 1983). 2. The allegations of the foreclosure Complaint against Defendant arise out of a breach of the terms of the Note and Mortgage for a failure to maintain adequate insurance on the property. UVLO OAMARU PAGE 1 17-044159 - VaS1. First Defense: Failure to State a Cause of Action/Unclean Hands. As an initial matter, this defense is insufficiently pled pursuant to Fla.R.Civ.P. 1.110 because it incorporates two separate defenses into one defense. Rule 1.110(f), Fla.R.Civ.P. states that “[a]ll averments of claim or defense shall be made in consecutively numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances[.] ... [E]ach defense other than denials shall be stated in a separate count or defense when separation facilitates the clear presentation of the matter set forth.” 2. Notwithstanding the procedural defects, Defendant has failed to assert any specific facts that would show that if in fact Defendant paid for hazard insurance, that the insurance obtained was adequate and in compliance with the loan documents. A clear reading of 12 C.F.R. §1024.37(b) shows that when a Defendant is in default and has failed to comply with the Mortgage’s requirements relating to hazard insurance, the servicer is permitted to obtain forced placed insurance: (b) Basis for charging borrower for force-placed insurance. A servicer may not assess on a borrower a premium charge or fee related to force-placed insurance unless the servicer has a reasonable basis to believe that the borrower has failed to comply with the mortgage loan contract's requirement to maintain hazard insurance. (Emphasis added). Finally, since a requirement for forced placed insurance arises out of the loan documents, any claim of unclean hands must be stricken. A failure to comply with the material terms of a loan document may be a breach of contract, and it may not be nice, but it does not amount to unclean hands. Cong. Park Office Condos II, LLC v. First-Citizens Bank & Trust Co., 105 So. 3d 602, 610 (Fla. 4th DCA 2013). 3. Second Defense: Subject Matter Jurisdiction. Whether or not Plaintiff has unclean hands has no bearing on this court’s subject matter jurisdiction. Subject matter PAGE 2 17-044159 - VaSjurisdiction means "the power of the court to adjudicate the class of cases to which the particular case belongs.” VL Orlando Building Corp. v. AGD Hospitality Design & Purchasing, Inc., 762 So. 2d 956, 957 (Fla. 4th DCA 2000). For a court to have subject matter jurisdiction in a foreclosure action, the action must be brought in the county where the land lies. See Cohen v. Century Ventures, Inc., 163 So. 2d 799 (Fla. 2d DCA 1964). The property is located in Miami- Dade County, which is where this action was initiated, and thus, the Court has subject matter jurisdiction. 4. Third Defense: Original Documents. This is not a true affirmative defense to foreclosure. “An affirmative defense is any matter that avoids the action and that, under applicable law, the plaintiff is not bound to prove initially but the defendant must affirmatively establish.” Langford v. McCormick, 552 So. 2d 964, 967 (Fla. 1st DCA 1989) (citing 40 Fla. Jur. 2d Pleadings, § 159 (1982)). Regardless, pursuant to Section 702.015, Florida Statutes, the original Note is required to be filed prior to entry of final judgment. Id. Final Judgment has not yet been entered, therefore Plaintiff is not yet required to file the original Note. In filing the Complaint, Plaintiff is permitted to file copies of the Note to evidence its status as holder. Id §702.015 (c). 5. Fourth Defense: Standing. Plaintiff has alleged in the Complaint that it holds the Note and the Note attached to the Complaint contains a blank indorsement. One of the ways a plaintiff can establish standing is as a note holder (i.e., a person in possession of the note specially indorsed to it or indorsed in blank). §673.3011(1). See also Purificato v. Nationstar Mortg., LLC, 182 So.3d 821, 823 (Fla. 4th DCA 2016) (“A plaintiff may establish standing by proving that it was in possession of the note with a blank [i]ndorsement at the time it filed the complaint.”); Ortiz v. PNC Bank, Nat'l Ass'n, 188 So.3d 923, 925 (Fla. 4th DCA 2016) PAGE 3 17-044159 - VaS(possession of original not indorsed in blank at time suit is filed establishes standing). In this case, Plaintiff asserts it has standing as a holder of a blank indorsed Note. Any argument that Plaintiff must own the Note in order to enforce same should be stricken since Plaintiff is proceeding as holder, not an owner. Wells Fargo Bank, N.A. v. Morcom, 125 So. 3d 320 (Fla. 5 DCA 2013) (bearer of note indorsed in blank has standing to foreclose even though it’s not the owner, did not plead that it was proceeding in a representative capacity, and regardless of any recorded assignments). 6. Fifth Defense: Accounting. This is not a true defense to foreclosure. Further, Defendant has failed to allege what contract or other authority entitles her to an accounting. An equitable accounting is properly pled only when the Defendant alleges that “the contract demands between litigants involve extensive or complicated accounts and it is not clear that the remedy at law is as full, adequate and expeditious as it is in equity.” Chiron v. Isram Wholesale Tours and Travel, Ltd., 519 So. 2d 1102, 1103 (Fla. 3d DCA 1988) (citation omitted). Besides the fact that this defense is inadequately pled, here, there is no such complexity nor inadequacy of a legal remedy. 7. Sixth Defense: Authenticity. Defendant contests the authenticity of the signature of the Decedent, Robert A. Rolle, on the Note, however, does not provide any specific facts that would overcome the presumption of authenticity. Florida Statute section 673.3081 provides that the authenticity of an instrument “is admitted unless specifically denied in the pleadings.” Fla. Stat. § 673.3081(1). Furthermore, the loan originated in 2006 and the default did not occur until ten (10) years later. Thus, Defendant ratified the contract by failing to timely raise the issue of authenticity. See Bloom v. G.P.F, S.A., 588 So. 2d 607 (Fla. DCA 1991). “[A] party cannot have it both ways” by deriving the benefit of the agreement while simultaneously attempting to have PAGE 4 17-044159 - VaSthe document declared null and void. Jd. at 610. 8. Seventh Defense: This defense is duplicative of the Fourth Defense and must be stricken on these grounds alone. 9. Eighth Defense: Conditions Precedent. This defense is insufficiently pled. Florida Rule of Civil Procedure 1.120(c) establishes a special pleading rule in regard to conditions precedent: “In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.” Under this rule a plaintiff is allowed to allege in a generalized fashion that all the conditions precedent to a cause of action, whatever they may be, have either occurred or been performed. A defendant, as the responding party, shoulders the responsibility of identifying a specific, unfulfilled condition precedent should it wish to deny that general averment. Bank of Am., Nat. Ass'n v. Asbury, 165 So. 3d 808, 810 (Fla. 2d DCA 2015). Defendant has failed to specify what conditions precedent Plaintiff allegedly failed to comply with. “Florida's pleading rule forces counsel to recognize the elements of their cause of action and determine whether they have or can develop the facts necessary to support it, which avoids a great deal of wasted expense to the litigants and unnecessary judicial effort. Horowitz v. Laske, 855 So. 2d 169, 172-73 (Fla. 5th DCA 2003). 10. Ninth Defense: Verification. As an initial matter, verification of a foreclosure complaint is controlled by Rule 1.115(e), Fla.R.Civ.P. (2014 Amendment). All the Rule requires for verification of a mortgage foreclosure complaint is that the Complaint contains the required oath or affirmation, which Plaintiff's Complaint contains. The Rule “does not require that the verification be based on personal knowledge. It requires only that the plaintiff verify that the facts PAGE 5 17-044159 - VaSalleged therein are true and correct to the best of my knowledge and belief.” Deutsche Bank Nat'l Trust Co. v. Prevtatil, 120 So. 3d 573 (Fla. 2d DCA 2013). Fla. Stat. §702.10, as cited in Defendant’s defense, relates to Orders to Show Cause, which is not relevant to the instant action and therefore must be stricken. 11. Finally, any request for the Court to dismiss the Complaint in the “WHEREFORE” clause must be stricken as this is an Answer and Affirmative Defenses and not a Motion to Dismiss. WHERFORE, Plaintiff respectfully requests that the Court strike Defendant’s Affirmative Defenses for the reasons stated herein and grant Plaintiff any such further relief as this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy hereof has been furnished to the parties |isted on the attached sevice list by 0 e-mail; 0 hand-delivery; 1) mail; and/or 0 fax on this day of 2018. ROBERTSON, ANSCHUTZ & SCHNEID, P.L. Attorney for Plaintiff 6409 Congress Ave., Suite 100 Boca Raton, FL 33487 Telephone: $61.241-6901 Vay eressa D. Sloat-Rogers . Bar Number 353530 Comniuhication Email: idabek@rasflaw.com PAGE 6 17-044159 - VaSSERVICE LIST JAMES JEAN-FRANCOIS, P.A. JAMES JEAN-FRANCOIS, ESQUIRE ATTORNEY FOR HELEN V. ROLLE C/O JAMES JEAN-FRANCOIS, P.A. 6100 HOLLYWOOD BOULEVARD, SUITE 211 DUTY FREE AMERICAS HOLLYWOOD, FL 33024 PRIMARY EMAIL: JAMESJEANFRANCOISESQ@HOTMAIL.COM SECONDARY EMAIL: JJONLAW@HOTMAIL.COM UNITED STATES OF AMERICA, ON BEHALF OF THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT 99 NE 4TH STREET, 13TH FLOOR MIAMI, FL 33132 UNKNOWN SPOUSE OF HELEN V. ROLLE 420 NW 183RD TERRACE MIAMI, FL 33169 PAGE 7 17-044159 - VaS