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Filing # 85759911 E-Filed 03/01/2019 04:32:42 PM
IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT
IN AND FOR CLAY COUNTY, FLORIDA
CIVIL DIVISION
Bank of America, NLA Case #: 2018-CA-OOLIS1
DIVISION: A
Plaintiff,
“VE,0
Juan Miguel Treche; et al.
dete
REPLY TO AFFIRMATIVE DEFENSES OF DEFENDANT, JUAN MIGUEL TRECHE
Plaintiff, Bank of America, N.A, by and through its undersigned attorney, hereby files
this reply to the Affirmative Defenses of Defendant, Juan Miguel Treche, and states as follows:
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 part, by his binding,
voluntary agreement to the terms and conditions of the loan.
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 effirmative defense must clearly and concisely set out the essential facts and
not aver merely legal conclusions. See Thomoson v, Bank of New Yor®. 862 So. 2d 768 (la. 4th
DCA 2003); Cany y. Chase Sav. and Loan Inc.. 628 So. 2d 136, 138 (Fla. 4th DCA 1988)
(certainty is required when pleading a defense, and pleading conclusions of law
unsupported by allegations of ultimately facts is legally insufficient).
4, Without the requisite facts to support an affirmative defense, Plaintiff must guess
at the basis for such defense and ultimately has no idea what to defend against. “[T]herequirement of certainty will be insisted upon in the pleading of « defines; and the certainty
required is that the pleador must set forth the facts in such a manner as te reasonably inform his
adversary of what is proposed to be proved in order provide the latter with a falr opportunity to
meet it and prepare his evidence.” Sie y, Washinoton Fed Sov & Loox dss'n of Mion’? Beach,
318 So, 2d 175, 176 Pla. 3d DCA 1975).
3. Defendant in the instant case has asserted legal and factual conclusions
without any basis and, therefore, has failed to miwet the minimam requirement for legal
sufficiency in his afGrmative defenses.
6. With respect to Defendant's first Afiamative Definse, Plaintif has af ail times
kept proper and complete accounting an Defendant's loan. Atieched as Exhibit “A* is a copy of
the Loan Payment History.
7. With respect to the Affirmative Defense of standing, Plaintiff will admit as
evidence the original Note, with the endorsement, in the same condition as the copy it attached to
the initial Complaint, This is sufficient to establish standing absent evidence to the contrary.
Ortiz v. PNC Bank, Notional Ass'n, 188 So. 34 923 (Fla. 4th DCA 2016).
8. The Borrower waived their defense of standing because they negotiated and
executed a loan modification agreement with the plaintiff prior to commencement of this
foreclosure action, The execution of the agreement results in a waiver of all defenses and claims
resting on plaintiff's purported lack to enforce the note, Defendants cannot now be heard to
assert a standing defense when they exnbraced Plaintiff's right to enforce the note when it suited
them.
9. The borrower's execution of (and benefit from) the loan modification, coupled
with their payments to the lender of the amounts due thereunder, acted as a waiver of theirdefense that Plaintiff purportedly lacked standing to enforce the note and mortgage as modified
by Plaintiff or the unenforceability of that note and mortgage under other theories. See Citron v.
Wachovia Mortg. Carp., 922 F, Supp. 24 1309, 1322 (M.D. Fla. 2013) (Applying Florida law,
the District Court ruled that by waiting nearly two years while continuing to make monthly loan
payments, as modified by the forbearance agreement Plaintiffs requested, they waived the
purported TLLA violations and ratified the purported fraud). “Parties, by their own knowledge
and conduct, can waive or be estopped to raise a wide array of constitutional, statutory, and
common law rights.” Ruggio v. Vining, 75S So. 2d 792, 795 Fla. 2d DCA 2000).
10. With respect to the Affirmative Defense of alleging noncompliance with
conditions precedent, Defendant has failed to describe Plaintiff's purported noncompliance with
sufficient particularity such that Plaintiff has to guess as to how it may have failed to comply.
Additionally, Plaintiff asserts that proper notification of the default was provided to Defendant in
compliance with the terms of the note and mortgage. A copy of the demand letter is attached as
Exhibit “B.” Further, nothing requires Plaintiff to prove that Defendant received the notice of
acceleration required by paragraph 22 of the subject mortgage. See Roman v. Wells Fargo Bank,
143 So, 34 489, 490 (Fla. Sth DCA 2014) (string cite omitted). Finally, Defendant has not pled,
nor have they suffered, any prejudice resulting from any purported noncompliance.
WHEREFORE, the Plaintiff requests the Honorable Court will find in favor of the
Plaintiff and against the Defendant.
CERTIFICATE OF SERVICE
IBEREBY CERTIPY that a true and correct copy of the foregoing has been furnished
by U.S. Mail and/or email service if an email address is so listed below on this 7 day of
2019 to the following:Yelina Reyes Diaz a/k/a Yelina Diaz, 1414 Forbes Street, Green Cove Springs, FL 32043
Fabiola Mercedes Lezama, 1414 Forbes Street, Green Cove Springs, FL 32043
Unknown Parties in Possession #1, 1414 Forbes Street, Green Cove Springs, FL 32043
Unknown Parties in Possession #2, 1414 Forbes Street, Green Cove Springs, FL 32043
Juan Miguel Treche, c/o Kinley 1 Enpvalson, Esq., Kengvalson@kraskerlaw.com &
serviceHA D@kraskeriaw.com & dwaite@kraskerlaw.com
*Pursuant to Fla. R. Jud. Admin. 2.516(b)(1)(A), Plaintiff's counsel
hereby designates its primary email address for the purposes of
email service as: SFGBocaService@logs.com*
SHAPIRO, FISHMAN & GACHE, LLP
Attoreys for Plaintiff!
2424 North Federal Highway, Ste 360
Boca Raton, Florida 33431
Telephone: (561) 998-6700 Ext. 6672
Fax: (561) 998-6707
For Email Service Only: SFGBocaService@logs.com
For all other inquiries: kdulay@logs.com
EL Bar # 22506
Pursuant to the Fair Debt Collections Practices Act, you aie advised that this office may be
deemed a debt collector and any information obtained may be used for that purpose.
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Preview
Filing # 85759911 E-Filed 03/01/2019 04:32:42 PM IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT IN AND FOR CLAY COUNTY, FLORIDA CIVIL DIVISION Bank of America, NLA Case #: 2018-CA-OOLIS1 DIVISION: A Plaintiff, “VE,0 Juan Miguel Treche; et al. dete REPLY TO AFFIRMATIVE DEFENSES OF DEFENDANT, JUAN MIGUEL TRECHE Plaintiff, Bank of America, N.A, by and through its undersigned attorney, hereby files this reply to the Affirmative Defenses of Defendant, Juan Miguel Treche, and states as follows: 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 part, by his binding, voluntary agreement to the terms and conditions of the loan. 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 effirmative defense must clearly and concisely set out the essential facts and not aver merely legal conclusions. See Thomoson v, Bank of New Yor®. 862 So. 2d 768 (la. 4th DCA 2003); Cany y. Chase Sav. and Loan Inc.. 628 So. 2d 136, 138 (Fla. 4th DCA 1988) (certainty is required when pleading a defense, and pleading conclusions of law unsupported by allegations of ultimately facts is legally insufficient). 4, Without the requisite facts to support an affirmative defense, Plaintiff must guess at the basis for such defense and ultimately has no idea what to defend against. “[T]herequirement of certainty will be insisted upon in the pleading of « defines; and the certainty required is that the pleador must set forth the facts in such a manner as te reasonably inform his adversary of what is proposed to be proved in order provide the latter with a falr opportunity to meet it and prepare his evidence.” Sie y, Washinoton Fed Sov & Loox dss'n of Mion’? Beach, 318 So, 2d 175, 176 Pla. 3d DCA 1975). 3. Defendant in the instant case has asserted legal and factual conclusions without any basis and, therefore, has failed to miwet the minimam requirement for legal sufficiency in his afGrmative defenses. 6. With respect to Defendant's first Afiamative Definse, Plaintif has af ail times kept proper and complete accounting an Defendant's loan. Atieched as Exhibit “A* is a copy of the Loan Payment History. 7. With respect to the Affirmative Defense of standing, Plaintiff will admit as evidence the original Note, with the endorsement, in the same condition as the copy it attached to the initial Complaint, This is sufficient to establish standing absent evidence to the contrary. Ortiz v. PNC Bank, Notional Ass'n, 188 So. 34 923 (Fla. 4th DCA 2016). 8. The Borrower waived their defense of standing because they negotiated and executed a loan modification agreement with the plaintiff prior to commencement of this foreclosure action, The execution of the agreement results in a waiver of all defenses and claims resting on plaintiff's purported lack to enforce the note, Defendants cannot now be heard to assert a standing defense when they exnbraced Plaintiff's right to enforce the note when it suited them. 9. The borrower's execution of (and benefit from) the loan modification, coupled with their payments to the lender of the amounts due thereunder, acted as a waiver of theirdefense that Plaintiff purportedly lacked standing to enforce the note and mortgage as modified by Plaintiff or the unenforceability of that note and mortgage under other theories. See Citron v. Wachovia Mortg. Carp., 922 F, Supp. 24 1309, 1322 (M.D. Fla. 2013) (Applying Florida law, the District Court ruled that by waiting nearly two years while continuing to make monthly loan payments, as modified by the forbearance agreement Plaintiffs requested, they waived the purported TLLA violations and ratified the purported fraud). “Parties, by their own knowledge and conduct, can waive or be estopped to raise a wide array of constitutional, statutory, and common law rights.” Ruggio v. Vining, 75S So. 2d 792, 795 Fla. 2d DCA 2000). 10. With respect to the Affirmative Defense of alleging noncompliance with conditions precedent, Defendant has failed to describe Plaintiff's purported noncompliance with sufficient particularity such that Plaintiff has to guess as to how it may have failed to comply. Additionally, Plaintiff asserts that proper notification of the default was provided to Defendant in compliance with the terms of the note and mortgage. A copy of the demand letter is attached as Exhibit “B.” Further, nothing requires Plaintiff to prove that Defendant received the notice of acceleration required by paragraph 22 of the subject mortgage. See Roman v. Wells Fargo Bank, 143 So, 34 489, 490 (Fla. Sth DCA 2014) (string cite omitted). Finally, Defendant has not pled, nor have they suffered, any prejudice resulting from any purported noncompliance. WHEREFORE, the Plaintiff requests the Honorable Court will find in favor of the Plaintiff and against the Defendant. CERTIFICATE OF SERVICE IBEREBY CERTIPY that a true and correct copy of the foregoing has been furnished by U.S. Mail and/or email service if an email address is so listed below on this 7 day of 2019 to the following:Yelina Reyes Diaz a/k/a Yelina Diaz, 1414 Forbes Street, Green Cove Springs, FL 32043 Fabiola Mercedes Lezama, 1414 Forbes Street, Green Cove Springs, FL 32043 Unknown Parties in Possession #1, 1414 Forbes Street, Green Cove Springs, FL 32043 Unknown Parties in Possession #2, 1414 Forbes Street, Green Cove Springs, FL 32043 Juan Miguel Treche, c/o Kinley 1 Enpvalson, Esq., Kengvalson@kraskerlaw.com & serviceHA D@kraskeriaw.com & dwaite@kraskerlaw.com *Pursuant to Fla. R. Jud. Admin. 2.516(b)(1)(A), Plaintiff's counsel hereby designates its primary email address for the purposes of email service as: SFGBocaService@logs.com* SHAPIRO, FISHMAN & GACHE, LLP Attoreys for Plaintiff! 2424 North Federal Highway, Ste 360 Boca Raton, Florida 33431 Telephone: (561) 998-6700 Ext. 6672 Fax: (561) 998-6707 For Email Service Only: SFGBocaService@logs.com For all other inquiries: kdulay@logs.com EL Bar # 22506 Pursuant to the Fair Debt Collections Practices Act, you aie advised that this office may be deemed a debt collector and any information obtained may be used for that purpose. 18-315584 FCOL CGGoo 3 ao os e Be. ee desi fae te om am soe eae gee ‘ aR fama rae ose Re e wed a BE BE ee Be ee ee ee 086298 88h em a me ‘ee wae ae ae am va te “oom 7" 7 saa fsa guest pe ve ES "es sa oa jonas soe te a Be Prey potas wae a0 te En Bem | Ba ata sees a ad ee é mae” ‘8 825 wan jam, a) w pm ps goon sam atin raze te * a Ba ‘ane wan eae ne os e ain ‘oa ona tents a sexe we vot esas om ‘es oes 0873, ae ca a SE Heme po %. = Bae ‘a ten Hes suas an BB Sas en RR B88 ad ea ” fon gas, “pea ss te cm Snes sie RB 8 gan vee fae ne aun mom om ne SR gees ea ose ee sie Tes ‘Bee sees fem OTe” . aapmaiy a5 some eased RE te 2 ease Sm _, 08, eee Ham ve ae sm ‘$008 ‘ion rd te a eee cd pee” uaa, ts te ae gaa ae x08 ae em 8. eas" Se Gain | Ge Ki ons oe no soo Beane "gas © oa ee ee Es ee ‘wee. wasn yee ves danse san oan we an ed we as sata ai Sot _ Re ee aon ao sas sam saa yas ve gaze gone van as BKGZ ery eee te 00 oo ao 2. mo Gane ‘ue me ee ae som sas ae ve Ae oars waz fe OBR gee sae ie tt sige esse gaa _ te _ PR SB ents ves saa” ee ane | Ye jos seas ae te fons fans no ve re nS ae mewn ‘Ot st fe MN ys ci ns ot mpiaewows tena UM ggiNie Vey e et tt mg, ee a : i Pygauges ‘ee one me fant” SSE EST EST S, Sesion satay (Oita ntact be Ue eS stat sot hese,ee se oe 08 vee S36 sevepeange & seston ses e ee be oe see ‘ee ae co ere a aR a Me ee ES th inn ean, PagesReig g BY Ep ks sage me eager si “Wienterantte eras ate Bie te eg ata onannasenenaatninbter ih than eget tere atest se te aa "BIR, edocs snes iinet an oh iiss samt tare up soon get ean pee eseeT tome Smee Sumas sae Re game” me” gaia gpm soe sane Reena ee $na Soa 9 sum raeo fom Re jas Re 000 Bs Seer ‘soon sor os sone pea soe os fame Be seam era eames Rot sume mm sae me ae am sce saan 08 saa Pe ang a 8 HRS wae 7 CR 88 ‘Re, Bas haat Fe Moe RS eT cane a se eed, e F § 3 F