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Filing # 53135740 E-Filed 03/01/2017 12:55:29 PM
IN THE COUNTY COURT IN AND
FOR BROWARD COUNTY, FLORIDA
CASE NO. COCE 15-026978 (49)
WESTLAKE HOMEOWNERS
ASSOCIATION, INC.,
Plaintiff,
vs.
ELIZABETH STARKWEATHER,
ETAL.,
Defendants.
/
PLAINTIFF'S REPLY TO DEFENDANT, ELIZABETH STAI THER’S
AFFIRMATIVE DEFENSES
Plaintiff, Westlake Homeowners Association, Inc., files this reply to the Affirmative
Defenses of Elizabeth Starkweather, and says:
1 Plaintiff denies all of Defendant’s affirmative defenses and demands strict proof
thereof.
2 Defendant’s Affirmative defenses are barred, in whole or in par by virtue of ownership
of the subject unit.
3 Defendant’s Affirmative defenses contain boilerplate conclusions of law and blanket
allegations, but do not supply any facts to support their statements. It is well established in Florida that
an affirmative defense must clearly and concisely set out the essential facts and not aver mere legal
conclusions. See Thompson v. Bank of New York, 2003 WL 22493343 (Fla 4" DCA 2003); Cady vy.
Chase Sav. And Loan Inc., 628 So.2d 136, 138 (Fla 4° DCA 1988) (certainty is required when
pleading a defense and pleading conclusions of law unsupported by allegations of ultimate facts is
legally insufficient). Without the requisite facts to support an affirmative defense, Plaintiff must guess
at the basis for such defenses and ultimately has no idea what to defend against.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN. CLERK 3/1/2017 12:55:28 PM.****
4 With respect to the Defense of failure to state a claim, Defendant has failed to set forth
any allegations of ultimate fact that would indicate any failure to state a claim on behalf of Plaintiff. It
is well established Florida law that the obligation to pay maintenance is unconditional. See Abbey Park
Homeowners Association v. Bowen, 508 So. 2d 554 (Fla. 4" DCA. 1987). See also, Sandles v.
Ss heridan Lakes Condominium, Inc., 388 So. 2d 1096 (Fla. 4" D.C.A. 1980). Furthermore, the
association’s governing documents provide for the collection of assessments. The Supreme Court of
Florida has stated the law as follows: A condominium unit owner’s duty to pay assessments is
conditioned solely upon whether the owner holds title to the unit and whether the assessment conforms
with the governing documents of the association and Florida Statutes. See, Ocean Trail Unit Owners
As ssociation, Inc. v. Mead, 650 So. 2d 19 (Fla. 1994).
5 With respect to the Defense of negligence, Defendant has failed to set forth any
allegations of ultimate fact that would indicate any negligence on behalf of Plaintiff. It is well
established Florida law that the obligation to pay maintenance is unconditional. See Abbey Park
Homeowners Association v. Bowen, 508 So. 2d 554 (Fla. 4" DCA. 1987). See also, Sandles v.
SI sheridan Lakes Condominium, Inc., 388 So. 2d 1096 (Fla. 4" DCA. 1980). Furthermore, the
association’s governing documents provide for the collection of assessments. The Supreme Court of
Florida has stated the law as follows: A condominium unit owner’s duty to pay assessments is
conditioned solely upon whether the owner holds title to the unit and whether the assessment conforms
with the governing documents of the association and Florida Statutes. See, Ocean Trail Unit Owners
A ssociation, Inc. v. Mead, 650 So. 2d 19 (Fla. 1994).
6. With respect to the Defense of failure to join indispensible parties, Defendant has failed to
set forth any allegations of ultimate fact that would indicate any failure to join any required party on
behalf of Plaintiff. It is well established Florida law that the obligation to pay maintenance is
unconditional. See Abbey Park Homeowners Association v. Bowen, 508 So. 2d 554 (Fla. 4° D.C.A.
1987). See also, Sandles v. Sheridan Lakes Condominium, Inc., 388 So. 2d 1096 (Fla. 4" DCA.
1980). Furthermore, the association’s governing documents provide for the collection of assessments.
The Supreme Court of Florida has stated the law as follows: A condominium unit owner’s duty to pay
assessments is conditioned solely upon whether the owner holds title to the unit and whether the
assessment conforms with the governing documents of the association and Florida Statutes. See, Ocean
Trail Unit Owners Association, Inc. v. Mead, 650 So. 2d 19 (Fla. 1994).
7. With respect to the Defense of failure to insufficient service of process, Defendant has failed
to set forth any allegations of ultimate fact that would indicate any failure to properly serve Defendant
8 With respect to the Defense of nominal damages, Defendant has failed to set forth any
allegations of ultimate fact that would indicate that the damages sought are nominal and uncollectible.
It is well established Florida law that the obligation to pay maintenance is unconditional. See Abbey
Park Homeowners Association v. Bowen, 508 So. 2d 554 (Fla. 4° D.C.A. 1987). See also, Sandles v.
Ss heridan Lakes Condominium, Inc., 388 So. 2d 1096 (Fla. 4" D.C.A. 1980). Furthermore, the
association’s governing documents provide for the collection of assessments. The Supreme Court of
Florida has stated the law as follows: A condominium unit owner’s duty to pay assessments is
conditioned solely upon whether the owner holds title to the unit and whether the assessment conforms
with the governing documents of the association and Florida Statutes. See, Ocean Trail Unit Owners
As ssociation, Inc. v. Mead, 650 So. 2d 19 (Fla. 1994).
9. With respect to the Defense of failure to mitigate, Defendant has failed to set forth any
allegations of ultimate fact that would indicate that the Plaintiff failed to mitigate its damages. It is
well established Florida law that the obligation to pay maintenance is unconditional. See Abbey Park
Homeowners Association v. Bowen, 508 So. 2d 554 (Fla. 4" DCA. 1987). See also, Sandles v.
SI sheridan Lakes Condominium, Inc., 388 So. 2d 1096 (Fla. 4" D.C.A. 1980). Furthermore, the
association’s governing documents provide for the collection of assessments. The Supreme Court of
Florida has stated the law as follows: A condominium unit owner’s duty to pay assessments is
conditioned solely upon whether the owner holds title to the unit and whether the assessment conforms
with the governing documents of the association and Florida Statutes. See, Ocean Trail Unit Owners
A ssociation, Inc. v. Mead, 650 So. 2d 19 (Fla. 1994).
10. With respect to the Defense of waiver, Defendant has failed to set forth any allegations of
ultimate fact that would indicate any waiver on behalf of Plaintiff. It is well established Florida law
that the obligation to pay maintenance is unconditional. See Abbey Park Homeowners Association v.
Bowen, 508 So. 2d 554 (Fla. 4" D.C.A. 1987). See also, Sandles v. Sheridan Lakes Condominium.
Inc., 388 So. 2d 1096 (Fla. 4" D.CA. 1980). Furthermore, the association’s governing documents
provide for the collection of assessments. The Supreme Court of Florida has stated the law as follows:
A condominium unit owner’s duty to pay assessments is conditioned solely upon whether the owner
holds title to the unit and whether the assessment conforms with the governing documents of the
association and Florida Statutes. See, Ocean Trail Unit Owners Association, Inc. v. Mead, 650 So. 2d
19 (Fla. 1994).
11. With respect to the Defendant’s Eigth Affirmative defense, This defense is not a valid
defense to a foreclosure action. Further, Defendant has failed to set forth any allegations of ultimate
fact that would indicate that would support this defense. It is well established Florida law that the
obligation to pay maintenance is unconditional. See Abbey Park Homeowners Association v. Bowen,
508 So. 2d 554 (Fla. 4" D.C.A. 1987). See also, Sandles v. Sheridan Lakes Condominium, Inc., 388
So. 2d 1096 (Fla. 4" DCA. 1980). Furthermore, the association’s governing documents provide for
the collection of assessments. The Supreme Court of Florida has stated the law as follows: A
condominium unit owner’s duty to pay assessments is conditioned solely upon whether the owner
holds title to the unit and whether the assessment conforms with the governing documents of the
association and Florida Statutes. See, Ocean Trail Unit Owners Association, Inc. v. Mead, 650 So. 2d
19 (Fla. 1994).
12. With respect to the Defense of unfair and predatory lending, Plaintiff is not a lending
institution and has never been in the business of lending money. It is well established Florida law that
the obligation to pay maintenance is unconditional. See Abbey Park Homeowners Association v.
Bowen, 508 So. 2d 554 (Fla. 4° D.C.A. 1987). See also, Sandles v. Sheridan Lakes Condominium.
Inc., 388 So. 2d 1096 (Fla. 4" D.C.A. 1980). Furthermore, the association’s governing documents
provide for the collection of assessments. The Supreme Court of Florida has stated the law as follows:
A condominium unit owner’s duty to pay assessments is conditioned solely upon whether the owner
holds title to the unit and whether the assessment conforms with the governing documents of the
association and Florida Statutes. See, Ocean Trail Unit Owners Association, Inc. v. Mead, 650 So. 2d
19 (Fla. 1994).
13. With respect to the Defense of violations of the Fair Debt Act, etc. Defendant has failed to
set forth any allegations of ultimate fact that would support these defenses. It is well established
Florida law that the obligation to pay maintenance is unconditional. See Abbey Park Homeowners
Association v. Bowen, 508 So. 2d 554 (Fla. 4" D.C.A. 1987). See also, Sandles v. Sheridan Lakes
Cc ‘ondominium, Inc., 388 So. 2d 1096 (Fla. 4" D.C.A. 1980). Furthermore, the association’s governing
documents provide for the collection of assessments. The Supreme Court of Florida has stated the law
as follows: A condominium unit owner’s duty to pay assessments is conditioned solely upon whether
the owner holds title to the unit and whether the assessment conforms with the governing documents of
the association and Florida Statutes. See, Ocean Trail Unit Owners Association, Inc. v. Mead, 650 So.
2d 19 (Fla. 1994).
14. With respect to the Defense of fraud in closing on the loan, Defendant has failed to set
forth any allegations of ultimate fact that would indicate that there was any fraud on part of the
Plaintiff. It is well established Florida law that the obligation to pay maintenance is unconditional. See
Abbey Park Homeowners Association v. Bowen, 508 So. 2d 554 (Fla. 4° DCA. 1987). See also,
Sandles v. Sheridan Lakes Condominium, Inc., 388 So. 2d 1096 (Fla. 4" D.C.A. 1980). Furthermore,
the association’s governing documents provide for the collection of assessments. The Supreme Court
of Florida has stated the law as follows: A condominium unit owner’s duty to pay assessments is
conditioned solely upon whether the owner holds title to the unit and whether the assessment conforms
with the governing documents of the association and Florida Statutes. See, Ocean Trail Unit Owners
As: sociation, Inc. v. Mead, 650 So. 2d 19 (Fla. 1994).
15.
WHEREFORE, Plaintiff, Belmont at North Lauderdale Condominium Association, Inc
prays for entry of Judgment of Foreclosure in its favor and against Defendants, Robert H. Thompson,
Patricia L. Thompson, and Wayne E. Yoder and all other and further relief as the Court may find
appropriate in the circumstances.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing was filed via the Florida Courts E-File
Portal this | day of March, 2017. I also certify that the foregoing document is being served on this
day on all counsel of record or pro se parties on the Service List below, either via transmission of
Notices of Electronic Filing generated by the Florida Courts E-File Portal or by U.S. Mail for those
counsel or parties who are not authorized to receive electronically filed pleadings in this action.
JENNINGS & VALANCY, P.A.
Attorney for Plaintiff
Fort Lauderdale, FL 33316
Telephone: (954) 463-1600
E-Mail: servi myfalAw.com
By:
her M. Ree
Florida Bar No. 16975
SERVICE LIST
Counsel for Defendant Elizabeth Starkweather
Barry S. Mittelberg, Esq.
c/o Barry S. Mittelberg, P.A.
1700 N. University Drive, Suite 300
Coral Springs, FL 33071
(954) 752-1213
(954) 752-5299— Fax
rry@Mittelberglaw.com
Preview
Filing # 53135740 E-Filed 03/01/2017 12:55:29 PM IN THE COUNTY COURT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. COCE 15-026978 (49) WESTLAKE HOMEOWNERS ASSOCIATION, INC., Plaintiff, vs. ELIZABETH STARKWEATHER, ETAL., Defendants. / PLAINTIFF'S REPLY TO DEFENDANT, ELIZABETH STAI THER’S AFFIRMATIVE DEFENSES Plaintiff, Westlake Homeowners Association, Inc., files this reply to the Affirmative Defenses of Elizabeth Starkweather, and says: 1 Plaintiff denies all of Defendant’s affirmative defenses and demands strict proof thereof. 2 Defendant’s Affirmative defenses are barred, in whole or in par by virtue of ownership of the subject unit. 3 Defendant’s Affirmative defenses contain boilerplate conclusions of law and blanket allegations, but do not supply any facts to support their statements. It is well established in Florida that an affirmative defense must clearly and concisely set out the essential facts and not aver mere legal conclusions. See Thompson v. Bank of New York, 2003 WL 22493343 (Fla 4" DCA 2003); Cady vy. Chase Sav. And Loan Inc., 628 So.2d 136, 138 (Fla 4° DCA 1988) (certainty is required when pleading a defense and pleading conclusions of law unsupported by allegations of ultimate facts is legally insufficient). Without the requisite facts to support an affirmative defense, Plaintiff must guess at the basis for such defenses and ultimately has no idea what to defend against. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN. CLERK 3/1/2017 12:55:28 PM.**** 4 With respect to the Defense of failure to state a claim, Defendant has failed to set forth any allegations of ultimate fact that would indicate any failure to state a claim on behalf of Plaintiff. It is well established Florida law that the obligation to pay maintenance is unconditional. See Abbey Park Homeowners Association v. Bowen, 508 So. 2d 554 (Fla. 4" DCA. 1987). See also, Sandles v. Ss heridan Lakes Condominium, Inc., 388 So. 2d 1096 (Fla. 4" D.C.A. 1980). Furthermore, the association’s governing documents provide for the collection of assessments. The Supreme Court of Florida has stated the law as follows: A condominium unit owner’s duty to pay assessments is conditioned solely upon whether the owner holds title to the unit and whether the assessment conforms with the governing documents of the association and Florida Statutes. See, Ocean Trail Unit Owners As ssociation, Inc. v. Mead, 650 So. 2d 19 (Fla. 1994). 5 With respect to the Defense of negligence, Defendant has failed to set forth any allegations of ultimate fact that would indicate any negligence on behalf of Plaintiff. It is well established Florida law that the obligation to pay maintenance is unconditional. See Abbey Park Homeowners Association v. Bowen, 508 So. 2d 554 (Fla. 4" DCA. 1987). See also, Sandles v. SI sheridan Lakes Condominium, Inc., 388 So. 2d 1096 (Fla. 4" DCA. 1980). Furthermore, the association’s governing documents provide for the collection of assessments. The Supreme Court of Florida has stated the law as follows: A condominium unit owner’s duty to pay assessments is conditioned solely upon whether the owner holds title to the unit and whether the assessment conforms with the governing documents of the association and Florida Statutes. See, Ocean Trail Unit Owners A ssociation, Inc. v. Mead, 650 So. 2d 19 (Fla. 1994). 6. With respect to the Defense of failure to join indispensible parties, Defendant has failed to set forth any allegations of ultimate fact that would indicate any failure to join any required party on behalf of Plaintiff. It is well established Florida law that the obligation to pay maintenance is unconditional. See Abbey Park Homeowners Association v. Bowen, 508 So. 2d 554 (Fla. 4° D.C.A. 1987). See also, Sandles v. Sheridan Lakes Condominium, Inc., 388 So. 2d 1096 (Fla. 4" DCA. 1980). Furthermore, the association’s governing documents provide for the collection of assessments. The Supreme Court of Florida has stated the law as follows: A condominium unit owner’s duty to pay assessments is conditioned solely upon whether the owner holds title to the unit and whether the assessment conforms with the governing documents of the association and Florida Statutes. See, Ocean Trail Unit Owners Association, Inc. v. Mead, 650 So. 2d 19 (Fla. 1994). 7. With respect to the Defense of failure to insufficient service of process, Defendant has failed to set forth any allegations of ultimate fact that would indicate any failure to properly serve Defendant 8 With respect to the Defense of nominal damages, Defendant has failed to set forth any allegations of ultimate fact that would indicate that the damages sought are nominal and uncollectible. It is well established Florida law that the obligation to pay maintenance is unconditional. See Abbey Park Homeowners Association v. Bowen, 508 So. 2d 554 (Fla. 4° D.C.A. 1987). See also, Sandles v. Ss heridan Lakes Condominium, Inc., 388 So. 2d 1096 (Fla. 4" D.C.A. 1980). Furthermore, the association’s governing documents provide for the collection of assessments. The Supreme Court of Florida has stated the law as follows: A condominium unit owner’s duty to pay assessments is conditioned solely upon whether the owner holds title to the unit and whether the assessment conforms with the governing documents of the association and Florida Statutes. See, Ocean Trail Unit Owners As ssociation, Inc. v. Mead, 650 So. 2d 19 (Fla. 1994). 9. With respect to the Defense of failure to mitigate, Defendant has failed to set forth any allegations of ultimate fact that would indicate that the Plaintiff failed to mitigate its damages. It is well established Florida law that the obligation to pay maintenance is unconditional. See Abbey Park Homeowners Association v. Bowen, 508 So. 2d 554 (Fla. 4" DCA. 1987). See also, Sandles v. SI sheridan Lakes Condominium, Inc., 388 So. 2d 1096 (Fla. 4" D.C.A. 1980). Furthermore, the association’s governing documents provide for the collection of assessments. The Supreme Court of Florida has stated the law as follows: A condominium unit owner’s duty to pay assessments is conditioned solely upon whether the owner holds title to the unit and whether the assessment conforms with the governing documents of the association and Florida Statutes. See, Ocean Trail Unit Owners A ssociation, Inc. v. Mead, 650 So. 2d 19 (Fla. 1994). 10. With respect to the Defense of waiver, Defendant has failed to set forth any allegations of ultimate fact that would indicate any waiver on behalf of Plaintiff. It is well established Florida law that the obligation to pay maintenance is unconditional. See Abbey Park Homeowners Association v. Bowen, 508 So. 2d 554 (Fla. 4" D.C.A. 1987). See also, Sandles v. Sheridan Lakes Condominium. Inc., 388 So. 2d 1096 (Fla. 4" D.CA. 1980). Furthermore, the association’s governing documents provide for the collection of assessments. The Supreme Court of Florida has stated the law as follows: A condominium unit owner’s duty to pay assessments is conditioned solely upon whether the owner holds title to the unit and whether the assessment conforms with the governing documents of the association and Florida Statutes. See, Ocean Trail Unit Owners Association, Inc. v. Mead, 650 So. 2d 19 (Fla. 1994). 11. With respect to the Defendant’s Eigth Affirmative defense, This defense is not a valid defense to a foreclosure action. Further, Defendant has failed to set forth any allegations of ultimate fact that would indicate that would support this defense. It is well established Florida law that the obligation to pay maintenance is unconditional. See Abbey Park Homeowners Association v. Bowen, 508 So. 2d 554 (Fla. 4" D.C.A. 1987). See also, Sandles v. Sheridan Lakes Condominium, Inc., 388 So. 2d 1096 (Fla. 4" DCA. 1980). Furthermore, the association’s governing documents provide for the collection of assessments. The Supreme Court of Florida has stated the law as follows: A condominium unit owner’s duty to pay assessments is conditioned solely upon whether the owner holds title to the unit and whether the assessment conforms with the governing documents of the association and Florida Statutes. See, Ocean Trail Unit Owners Association, Inc. v. Mead, 650 So. 2d 19 (Fla. 1994). 12. With respect to the Defense of unfair and predatory lending, Plaintiff is not a lending institution and has never been in the business of lending money. It is well established Florida law that the obligation to pay maintenance is unconditional. See Abbey Park Homeowners Association v. Bowen, 508 So. 2d 554 (Fla. 4° D.C.A. 1987). See also, Sandles v. Sheridan Lakes Condominium. Inc., 388 So. 2d 1096 (Fla. 4" D.C.A. 1980). Furthermore, the association’s governing documents provide for the collection of assessments. The Supreme Court of Florida has stated the law as follows: A condominium unit owner’s duty to pay assessments is conditioned solely upon whether the owner holds title to the unit and whether the assessment conforms with the governing documents of the association and Florida Statutes. See, Ocean Trail Unit Owners Association, Inc. v. Mead, 650 So. 2d 19 (Fla. 1994). 13. With respect to the Defense of violations of the Fair Debt Act, etc. Defendant has failed to set forth any allegations of ultimate fact that would support these defenses. It is well established Florida law that the obligation to pay maintenance is unconditional. See Abbey Park Homeowners Association v. Bowen, 508 So. 2d 554 (Fla. 4" D.C.A. 1987). See also, Sandles v. Sheridan Lakes Cc ‘ondominium, Inc., 388 So. 2d 1096 (Fla. 4" D.C.A. 1980). Furthermore, the association’s governing documents provide for the collection of assessments. The Supreme Court of Florida has stated the law as follows: A condominium unit owner’s duty to pay assessments is conditioned solely upon whether the owner holds title to the unit and whether the assessment conforms with the governing documents of the association and Florida Statutes. See, Ocean Trail Unit Owners Association, Inc. v. Mead, 650 So. 2d 19 (Fla. 1994). 14. With respect to the Defense of fraud in closing on the loan, Defendant has failed to set forth any allegations of ultimate fact that would indicate that there was any fraud on part of the Plaintiff. It is well established Florida law that the obligation to pay maintenance is unconditional. See Abbey Park Homeowners Association v. Bowen, 508 So. 2d 554 (Fla. 4° DCA. 1987). See also, Sandles v. Sheridan Lakes Condominium, Inc., 388 So. 2d 1096 (Fla. 4" D.C.A. 1980). Furthermore, the association’s governing documents provide for the collection of assessments. The Supreme Court of Florida has stated the law as follows: A condominium unit owner’s duty to pay assessments is conditioned solely upon whether the owner holds title to the unit and whether the assessment conforms with the governing documents of the association and Florida Statutes. See, Ocean Trail Unit Owners As: sociation, Inc. v. Mead, 650 So. 2d 19 (Fla. 1994). 15. WHEREFORE, Plaintiff, Belmont at North Lauderdale Condominium Association, Inc prays for entry of Judgment of Foreclosure in its favor and against Defendants, Robert H. Thompson, Patricia L. Thompson, and Wayne E. Yoder and all other and further relief as the Court may find appropriate in the circumstances. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was filed via the Florida Courts E-File Portal this | day of March, 2017. I also certify that the foregoing document is being served on this day on all counsel of record or pro se parties on the Service List below, either via transmission of Notices of Electronic Filing generated by the Florida Courts E-File Portal or by U.S. Mail for those counsel or parties who are not authorized to receive electronically filed pleadings in this action. JENNINGS & VALANCY, P.A. Attorney for Plaintiff Fort Lauderdale, FL 33316 Telephone: (954) 463-1600 E-Mail: servi myfalAw.com By: her M. Ree Florida Bar No. 16975 SERVICE LIST Counsel for Defendant Elizabeth Starkweather Barry S. Mittelberg, Esq. c/o Barry S. Mittelberg, P.A. 1700 N. University Drive, Suite 300 Coral Springs, FL 33071 (954) 752-1213 (954) 752-5299— Fax rry@Mittelberglaw.com