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Filing # 100844933 E-Filed 12/27/2019 08:50:40 AM
IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT IN
AND FOR BROWARD COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. CACE19021634
NATIONSTAR MORTGAGE LLC D/B/A
MR. COOPER,
Plaintiff,
VS.
GREGORY C. BODE A/K/A GREGORY
CARL BODE AND DIANE CLAIRE
NOBLE A/K/A DIANE CLAIRE BODE
A/K/A DIANE BODE, et al.
Defendant(s).
PLAINTIFF’S MOTION TO STRIKE DEFENDANT DIANE CLAIRE NOBLE A/K/A
DIANE CLAIRE BODE A/K/A DIANE BODE AFFIRMATIVE DEFENSES
The Plaintiff, NATIONSTAR MORTGAGE LLC D/B/A MR. COOPER, pursuant to
Florida Rule of Civil Procedure 1.140(b) and (f), by and through its undersigned attorney, files its
Motion to Strike Defendants’ DIANE CLAIRE NOBLE A/K/A DIANE CLAIRE BODE A/K/A
DIANE BODE Affirmative Defenses, and in support thereof states as follows:
1. Plaintiff denies each and every affirmative defense contained in Defendant’s Answer and
Affirmative Defenses.
2. Defendant’s Affirmative Defenses are nothing more than assertions of legal conclusions
without sufficient factual basis to support same. The defenses are inadequately plead and
should be stricken. See e.g. Zito v. Washington Federal Savings & Loan Association of
Miami Beach, 318 So.2d 175 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 23 (Fla.1976).
3. Defendant breached the terms of the note and mortgage by failing to make the monthly
payments. Defendant should not be permitted to avoid foreclosure through the
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19-355144 - KiS
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/27/2019 08:50:39 AM.****maintenance of statutory or common law claims against Plaintiff when she failed to
perform their contractual obligations in good faith.
4. Defendant made payments under the subject note and mortgage for approximately five
years without objection. Accordingly, Defendant accepted the benefits of the note and
mortgage and should be estopped from asserting the affirmative defenses alleged. Rood
Co. v. Board of Public Instruction of Dade County, 102 So.2d 139 (Fla. 1958).
5. As to Defendant’s first affirmative defense that Plaintiff has failed to provide factual
support or legal basis for its foreclosure action, this is nothing more than a conclusion of
law that is pled without any specificity. As such, this defense must be stricken.
6. As to Defendant’s second affirmative defense that Plaintiff has failed to comply with
conditions precedent, Defendant is NOT the borrower. However, on February 12, 2019,
Plaintiff sent the borrower a notice of default and right to cure default letter which
informed the borrower that he was in default of the Mortgage. This notice also gave the
borrower thirty (30) days within which to cure the default and it advised the borrower that
failure to do so would result in the acceleration of the balance due. Plaintiff sent this
notice to Defendant’s current and property addresses. As such, Plaintiff has fully
complied with all its requirements and obligations as called for under the subject
mortgage and this affirmative defenses must be stricken.
7. As to Defendant’s third affirmative defense of failure to comply with the FDCPA,
Defendant is NOT the borrower. Moreover, this defense is not pled with any specificity
and therefore, must be stricken.
8. As to Defendant’s fourth affirmative defense that Plaintiff has not complied with all
conditions precedent necessary to accelerate the debt, as stated above, the condition
precedent has been met and this defense must be stricken.
9. As to Defendant’s fifth affirmative defense of set-off, this is nothing more than a
conclusion of law that is pled without any specificity. As such, this defense must be
stricken.
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19-355144 - KiS10. As to Defendant’s six affirmative defense of failure to comply with regulatory measures,
this is nothing more than a conclusion of law that is pled without any specificity. As
such, this defense must be stricken.
11. As to Defendant’s seventh affirmative defense asserting that Plaintiff has not property
credited payments, this defense is not pled with any specificity and therefore, Plaintiff
cannot formulate any response. This bare allegation does not demonstrate that payment
was indeed misapplied. It is well settled that allegations on an Answer that purport to be
an affirmative defense, but which are nothing more than denials or conclusions of law
must be stricken. Wiggins v. Protmay, 430 So. 2d 541 (Fla 1 DCA 1983). Certainty is
required when pleading affirmative defenses and pleading conclusions of law
unsupported by allegations of ultimate fact is legally insufficient. Bliss v. Carmona, 418
So. 2d 1017 (Fla 3 DCA 1982) citing Chris Craft Industries, Inc. V. Van Valkenberg, 267
So. 2d 642 (Fla. 1972); Ellison v. City of Fort Lauderdale, 175 So. 2d 198 (Fla. 1965).
12. As to Defendant’s eighth affirmative defense that Plaintiff lacks standing, Plaintiff filed a
Certification of Note Possession and attached a copy of the original Note endorsed in
blank. As such, Plaintiff has established standing and this defense must be stricken.
WHEREFORE, Plaintiff requests that this Court enter an order striking Defendants’
Affirmative Defenses and grant such other and further relief this Court deems just and proper.
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19-355144 - KiSCERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to
the parties listed on the attached service list via Mail and/or E-mail in accordance with the
corresponding addresses listed therein on this 27th day of December, 2019.
ROBERTSON, ANSCHUTZ & SCHNEID, P.L.
Attomey for Plaintiff
6409 Congress Ave., Suite 100
Boca Raton, FL 33487
Telephone: 561-241-6901
Facsimile: 561-997-6909
Service Email: mail@rasflaw.com
By: \S\ Kim Stevens
Kim Stevens, Esquire
Florida Bar No. 543136
Communication Email: kstevens@rasflaw.com
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19-355144 - KiSSERVICE LIST
WATSON LEIGH, P.A.
MALIK LEIGH, ESQ.
ATTORNEY FOR GREGORY C. BODE A/K/A GREGORY CARL BODE
P.O. BOX 221172
WEST PALM BEACH, FL 33422
PRIMARY EMAIL: SERVICE@WATSONLEIGH.COM
LAW OFFICE OF PEGGY URBANEJA, P.A.
PEGGY URBANEIJA, ESQ.
ATTORNEY FOR DIANE CLAIRE NOBLE A/K/A DIANE CLAIRE BODE A/K/A DIANE
BODE
7401 WILES ROAD SUITE 128
CORAL SPRINGS, FL 33067
PRIMARY EMAIL: PEGGY @URBANEJALAW.COM
UNKNOWN SPOUSE OF GREGORY C. BODE A/K/A GREGORY CARL BODE
183 SW 73RD TER
MARGATE, FL 33068
UNKNOWN SPOUSE OF DIANE CLAIRE NOBLE A/K/A DIANE CLAIRE BODE A/K/A
DIANE BODE
183 SW 73RD TER
MARGATE, FL 33068
By: \S\ Kim Stevens
Kim Stevens, Esquire
Florida Bar No. 543136
PAGE 5
19-355144 - KiS
Preview
Filing # 100844933 E-Filed 12/27/2019 08:50:40 AM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. CACE19021634 NATIONSTAR MORTGAGE LLC D/B/A MR. COOPER, Plaintiff, VS. GREGORY C. BODE A/K/A GREGORY CARL BODE AND DIANE CLAIRE NOBLE A/K/A DIANE CLAIRE BODE A/K/A DIANE BODE, et al. Defendant(s). PLAINTIFF’S MOTION TO STRIKE DEFENDANT DIANE CLAIRE NOBLE A/K/A DIANE CLAIRE BODE A/K/A DIANE BODE AFFIRMATIVE DEFENSES The Plaintiff, NATIONSTAR MORTGAGE LLC D/B/A MR. COOPER, pursuant to Florida Rule of Civil Procedure 1.140(b) and (f), by and through its undersigned attorney, files its Motion to Strike Defendants’ DIANE CLAIRE NOBLE A/K/A DIANE CLAIRE BODE A/K/A DIANE BODE Affirmative Defenses, and in support thereof states as follows: 1. Plaintiff denies each and every affirmative defense contained in Defendant’s Answer and Affirmative Defenses. 2. Defendant’s Affirmative Defenses are nothing more than assertions of legal conclusions without sufficient factual basis to support same. The defenses are inadequately plead and should be stricken. See e.g. Zito v. Washington Federal Savings & Loan Association of Miami Beach, 318 So.2d 175 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 23 (Fla.1976). 3. Defendant breached the terms of the note and mortgage by failing to make the monthly payments. Defendant should not be permitted to avoid foreclosure through the PAGE 1 19-355144 - KiS *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/27/2019 08:50:39 AM.****maintenance of statutory or common law claims against Plaintiff when she failed to perform their contractual obligations in good faith. 4. Defendant made payments under the subject note and mortgage for approximately five years without objection. Accordingly, Defendant accepted the benefits of the note and mortgage and should be estopped from asserting the affirmative defenses alleged. Rood Co. v. Board of Public Instruction of Dade County, 102 So.2d 139 (Fla. 1958). 5. As to Defendant’s first affirmative defense that Plaintiff has failed to provide factual support or legal basis for its foreclosure action, this is nothing more than a conclusion of law that is pled without any specificity. As such, this defense must be stricken. 6. As to Defendant’s second affirmative defense that Plaintiff has failed to comply with conditions precedent, Defendant is NOT the borrower. However, on February 12, 2019, Plaintiff sent the borrower a notice of default and right to cure default letter which informed the borrower that he was in default of the Mortgage. This notice also gave the borrower thirty (30) days within which to cure the default and it advised the borrower that failure to do so would result in the acceleration of the balance due. Plaintiff sent this notice to Defendant’s current and property addresses. As such, Plaintiff has fully complied with all its requirements and obligations as called for under the subject mortgage and this affirmative defenses must be stricken. 7. As to Defendant’s third affirmative defense of failure to comply with the FDCPA, Defendant is NOT the borrower. Moreover, this defense is not pled with any specificity and therefore, must be stricken. 8. As to Defendant’s fourth affirmative defense that Plaintiff has not complied with all conditions precedent necessary to accelerate the debt, as stated above, the condition precedent has been met and this defense must be stricken. 9. As to Defendant’s fifth affirmative defense of set-off, this is nothing more than a conclusion of law that is pled without any specificity. As such, this defense must be stricken. PAGE 2 19-355144 - KiS10. As to Defendant’s six affirmative defense of failure to comply with regulatory measures, this is nothing more than a conclusion of law that is pled without any specificity. As such, this defense must be stricken. 11. As to Defendant’s seventh affirmative defense asserting that Plaintiff has not property credited payments, this defense is not pled with any specificity and therefore, Plaintiff cannot formulate any response. This bare allegation does not demonstrate that payment was indeed misapplied. It is well settled that allegations on an Answer that purport to be an affirmative defense, but which are nothing more than denials or conclusions of law must be stricken. Wiggins v. Protmay, 430 So. 2d 541 (Fla 1 DCA 1983). Certainty is required when pleading affirmative defenses and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient. Bliss v. Carmona, 418 So. 2d 1017 (Fla 3 DCA 1982) citing Chris Craft Industries, Inc. V. Van Valkenberg, 267 So. 2d 642 (Fla. 1972); Ellison v. City of Fort Lauderdale, 175 So. 2d 198 (Fla. 1965). 12. As to Defendant’s eighth affirmative defense that Plaintiff lacks standing, Plaintiff filed a Certification of Note Possession and attached a copy of the original Note endorsed in blank. As such, Plaintiff has established standing and this defense must be stricken. WHEREFORE, Plaintiff requests that this Court enter an order striking Defendants’ Affirmative Defenses and grant such other and further relief this Court deems just and proper. PAGE 3 19-355144 - KiSCERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the parties listed on the attached service list via Mail and/or E-mail in accordance with the corresponding addresses listed therein on this 27th day of December, 2019. ROBERTSON, ANSCHUTZ & SCHNEID, P.L. Attomey for Plaintiff 6409 Congress Ave., Suite 100 Boca Raton, FL 33487 Telephone: 561-241-6901 Facsimile: 561-997-6909 Service Email: mail@rasflaw.com By: \S\ Kim Stevens Kim Stevens, Esquire Florida Bar No. 543136 Communication Email: kstevens@rasflaw.com PAGE 4 19-355144 - KiSSERVICE LIST WATSON LEIGH, P.A. MALIK LEIGH, ESQ. ATTORNEY FOR GREGORY C. BODE A/K/A GREGORY CARL BODE P.O. BOX 221172 WEST PALM BEACH, FL 33422 PRIMARY EMAIL: SERVICE@WATSONLEIGH.COM LAW OFFICE OF PEGGY URBANEJA, P.A. PEGGY URBANEIJA, ESQ. ATTORNEY FOR DIANE CLAIRE NOBLE A/K/A DIANE CLAIRE BODE A/K/A DIANE BODE 7401 WILES ROAD SUITE 128 CORAL SPRINGS, FL 33067 PRIMARY EMAIL: PEGGY @URBANEJALAW.COM UNKNOWN SPOUSE OF GREGORY C. BODE A/K/A GREGORY CARL BODE 183 SW 73RD TER MARGATE, FL 33068 UNKNOWN SPOUSE OF DIANE CLAIRE NOBLE A/K/A DIANE CLAIRE BODE A/K/A DIANE BODE 183 SW 73RD TER MARGATE, FL 33068 By: \S\ Kim Stevens Kim Stevens, Esquire Florida Bar No. 543136 PAGE 5 19-355144 - KiS