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Filing # 123853131 E-Filed 03/26/2021 02:33:09 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
HOMEBRIDGE FINANCIAL
SERVICES, INC.,
Vv.
Plaintiff,
Case No.: 2018-CA-003041-MF
MICHAEL R. PARKEY, et al.,
Defendants.
/
DEFENDANTS’, MICHAEL R. PARKEY AND MARK D. PARKEY, MOTION TO
STRIKE PLAINTIFF’S AMENDED REPLY TO DEFENDANTS’ FOURTH
AFFIRMATIVE DEFENSE
COMES NOW, Defendants, MICHAEL R. PARKEY and MARK D. PARKEY
(hereinafter referred to as “Defendants”), by and through the undersigned counsel, and pursuant to
Fla. R. Civ. P. 1.140(f), hereby move to strike Plaintiff's Amended Reply to Defendants’ Fourth
Affirmative Defense, and in support thereof state as follows:
1.
On January 9, 2020, Plaintiff filed an untimely Reply to Defendants’ Affirmative
Defenses.
On January 15, 2020, Defendants filed a Motion to Strike and Objection to Plaintiff’s
Untimely Reply.
On April 3, 2020, Plaintiff filed their Response to the Parkeys’ Motion to Strike and
Objection to Plaintiff's Untimely Reply and Motion to Amend Reply and Deem it Timely
Filed.
On March 22, 2021, this Court entered an Order wherein Plaintiff's Amended Reply with
regard to Defendants’ Fourth Affirmative Defense was accepted. However, the remainder
to Plaintiffs Amended Reply was stricken.
Contrary to Plaintiff's assertions in its Amended Reply to Defendants’ Fourth
Affirmative Defense, a Defense of Recoupment for Truth in Lending Act (“TILA”)
Violations is a valid defense in a mortgage foreclosure law suit even when the Statute of
Limitations to bring such a claim offensively has expired. Beach v. Great Western Bank,
et al., 692 So. 2d 146 (1997); Martinec v. Early Bird International, Inc., 37 Fla. L.
Weekly D573B (Fla. 4th DCA 2012).
Page 1 of 26. By filing suit against Defendants for mortgage foreclosure, Plaintiff has opened the door
to Defendants’ defenses of recoupment as articulated within Defendants’ Fourth
Affirmative Defense.
7. Specifically, Plaintiff has violated a number of the Truth in Lending Act (“TILA”)
requirements and provisions which entitle Defendants to an award of actual and statutory
damages as well as attorney’s fees.
8. In light of the foregoing, Defendants, respectfully request this Court to enter an Order
striking Plaintiff's Amended Reply to Defendants’ Fourth Affirmative Defense.
WHEREFORE, Defendants, MICHAEL R. PARKEY and MARK D. PARKEY,
respectfully request this Court to enter an Order striking Plaintiff's Amended Reply to Defendants’
Fourth Affirmative Defense, and any other relief this Court deems fair and just.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY, that a true and correct copy of the foregoing has been furnished
by E-mail through the E-portal to Attorneys for Plaintiff, of Albertelli Law
(servealaw@albertellilaw.com), P.O. Box 23028, Tampa, Florida 33623, on this 26th day of
March, 2021.
/s/ ANTHONY N. LEGENDRE, I, Esq.
ANTHONY N. LEGENDRE, II, Esq.
Fla. Bar No.: 67221
Primary E-mail: anthonylegendre@live.com
Secondary E-mail: Anthony@Law-Legends.com
Secondary E-mail: Ronald@Law-legends.com
Law Offices of Legendre & Legendre, PLLC
P.O. Box 948599
Maitland, FL 32794-8599
(407) 460-8525
Attorney for Defendants,
MICHAEL R. PARKEY and MARK D. PARKEY
Page 2 of 2
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Filing # 123853131 E-Filed 03/26/2021 02:33:09 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA HOMEBRIDGE FINANCIAL SERVICES, INC., Vv. Plaintiff, Case No.: 2018-CA-003041-MF MICHAEL R. PARKEY, et al., Defendants. / DEFENDANTS’, MICHAEL R. PARKEY AND MARK D. PARKEY, MOTION TO STRIKE PLAINTIFF’S AMENDED REPLY TO DEFENDANTS’ FOURTH AFFIRMATIVE DEFENSE COMES NOW, Defendants, MICHAEL R. PARKEY and MARK D. PARKEY (hereinafter referred to as “Defendants”), by and through the undersigned counsel, and pursuant to Fla. R. Civ. P. 1.140(f), hereby move to strike Plaintiff's Amended Reply to Defendants’ Fourth Affirmative Defense, and in support thereof state as follows: 1. On January 9, 2020, Plaintiff filed an untimely Reply to Defendants’ Affirmative Defenses. On January 15, 2020, Defendants filed a Motion to Strike and Objection to Plaintiff’s Untimely Reply. On April 3, 2020, Plaintiff filed their Response to the Parkeys’ Motion to Strike and Objection to Plaintiff's Untimely Reply and Motion to Amend Reply and Deem it Timely Filed. On March 22, 2021, this Court entered an Order wherein Plaintiff's Amended Reply with regard to Defendants’ Fourth Affirmative Defense was accepted. However, the remainder to Plaintiffs Amended Reply was stricken. Contrary to Plaintiff's assertions in its Amended Reply to Defendants’ Fourth Affirmative Defense, a Defense of Recoupment for Truth in Lending Act (“TILA”) Violations is a valid defense in a mortgage foreclosure law suit even when the Statute of Limitations to bring such a claim offensively has expired. Beach v. Great Western Bank, et al., 692 So. 2d 146 (1997); Martinec v. Early Bird International, Inc., 37 Fla. L. Weekly D573B (Fla. 4th DCA 2012). Page 1 of 26. By filing suit against Defendants for mortgage foreclosure, Plaintiff has opened the door to Defendants’ defenses of recoupment as articulated within Defendants’ Fourth Affirmative Defense. 7. Specifically, Plaintiff has violated a number of the Truth in Lending Act (“TILA”) requirements and provisions which entitle Defendants to an award of actual and statutory damages as well as attorney’s fees. 8. In light of the foregoing, Defendants, respectfully request this Court to enter an Order striking Plaintiff's Amended Reply to Defendants’ Fourth Affirmative Defense. WHEREFORE, Defendants, MICHAEL R. PARKEY and MARK D. PARKEY, respectfully request this Court to enter an Order striking Plaintiff's Amended Reply to Defendants’ Fourth Affirmative Defense, and any other relief this Court deems fair and just. CERTIFICATE OF SERVICE I HEREBY CERTIFY, that a true and correct copy of the foregoing has been furnished by E-mail through the E-portal to Attorneys for Plaintiff, of Albertelli Law (servealaw@albertellilaw.com), P.O. Box 23028, Tampa, Florida 33623, on this 26th day of March, 2021. /s/ ANTHONY N. LEGENDRE, I, Esq. ANTHONY N. LEGENDRE, II, Esq. Fla. Bar No.: 67221 Primary E-mail: anthonylegendre@live.com Secondary E-mail: Anthony@Law-Legends.com Secondary E-mail: Ronald@Law-legends.com Law Offices of Legendre & Legendre, PLLC P.O. Box 948599 Maitland, FL 32794-8599 (407) 460-8525 Attorney for Defendants, MICHAEL R. PARKEY and MARK D. PARKEY Page 2 of 2