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Filing # 118681784 E-Filed 12/23/2020 12:17:44 PM
IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. CACE19021666
FREEDOM MORTGAGE CORPORATION
Plaintiff,
vs.
ANDRE ST. STEVE KIFFIN, et. al.
Defendant(s).
/
PLAINTIFF’S REPLY TO ANDRE ST. STEVE KIFFIN’S
AFFIRMATIVE DEFENSES
Plaintiff, FREEDOM MORTGAGE CORPORATION, pursuant to Florida Rule
of Civil Procedure 1.140 (b) and (f), by and through its undersigned
attorney, files its Plaintiff’s Reply to Andre St. Steve Kiffin’s
Affirmative Defenses, and in support thereof states as follows:
1 Plaintiff hereby denies and avoids each and every
affirmative defense presented by Defendant and demands strict proof
thereof.
FIRST AFFIRMATIVE DEFENSE
LACK OF STANDING
2 The Plaintiff is the holder of the note containing a blank
indorsement, it is the real party in interest to bring this
foreclosure action. See Riggs v. Aurora Loan Services, LLC, 36 So. 3d
932, 933 (Fla. 4th DCA 2010) (“The negotiation of the note by its
transfer of possession with a blank indorsement made Aurora Loan the
“holder” of the note entitled to enforce it (citation omitted) .”).
3 The note is self-authenticating pursuant to the uCcCc and
Florida law. Fla. Stat. §§ 90.902(8); 673.3081.
#** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/23/2020 12:17:43 PM.**#*
4 Plaintiff is not required to allege how and when it became the
holder of the note pursuant to Florida Statutes subsection
702.015(2)
(a), but only that it is the holder of the note.
5 Florida Statutes subsection 702.015(2 provides,
(2) A complaint that seeks to foreclose a mortgage or other lien
on residential real property, including individual units of
condominiums and cooperatives, designed principally for
occupation by from one to four families which secures a
promissory note must:
(a) Contain affirmative
allegations expressly made by the
plaintiff at the time the proceeding is commenced that the
plaintiff is the holder of the original note secured by the
mortgage; or
(b) Allege with specificity the factual basis by which the
plaintiff is a person entitled to enforce the note under s.
673.3011.
Fla. Stat. § 702.015(2).
6 Plaintiff’s Complaint contains the affirmative allegation that
“Plaintiff holds the Note and Mortgage,” as required under subsection
702.015
(2) (a) See Compl. q 5. Further, a copy of the original note
containing a blank indorsement is attached as an exhibit to
Plaintiff’s Complaint.
7
As described above, see § 5 infra, Plaintiff has standing to
foreclose because it is the holder of the note with a blank
indorsement. See McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.
3d 170, 174 (Fla. 4th DCA 2012) (“If the note or allonge reflects on
its face that the endorsement occurred before the filing of the
complaint, this is sufficient to establish standing.”).
8 In addition, either an owner or holder of a note indorsed in
blank can have standing to foreclose, as long as he can show that he
had possession of the note at the time the foreclosure suit was
initiated. U.S. Bank Nat’l Ass’n v. Knight, 90 So. 3d 824, 826 (Fla.
4th DCA 2012).
19-376234 - ViL
9 Plaintiff demonstrated its status as the holder of the note
with a blank indorsement as reflected in the allegations and exhibits
contained in its Complaint.
10.Defendants’ arguments based on the alleged lack of standing
are without merit and should therefore be denied.
SECOND AFFIRMATIVE DEFENSES
FAILURE OF CONTRACTUAL CONDITION PRECEDENT
11.As to the second affirmative defenses the Defendants next
allege that Plaintiff failed to give written notice of default and
intent to accelerate to Defendants prior to filing this foreclosure
action.
12.Contrary to Defendants’ allegations, Plaintiff did in fact
send a notice of default and intent to accelerate to Defendants. See
attached Exhibit vale
13. Plaintiff also pled in its Complaint that all conditions
precedent have been performed or have occurred, which is all that is
required under the Rule. Compl. g ii. See also Fla. R. Civ. P
1.120(c).
14.Defendants’ arguments based on the alleged improper notice are
without merit and should therefore be denied.
DEMAND FOR ATTORNEY FEES AND COSTS
15. Plaintiff objects to Defendant’s claim for attorney’s fees
for failure to cite to any statute or contract that would entitle
Defendant to any such fees in this case. “An award of {attorneys']
fees must be supported by a particular contractual, statutory, or
other substantive basis.” State, Dep't of Highway Safety & Motor
19-376234 - ViL
Vehicles v. Trauth, 971 So. 2d 906, 908 (Fla. 3d DCA 2007). "It is
well-settled that attorneys' fees can derive only from either a
statutory basis or an agreement between the parties. ” Trytek v. Gale
Indus., Inc., 3 So. 3d 1194, 1198 (Fla. 2009) (citing State Farm Fire
& Cas. Co. v Palma, 629 So. 2d 830, 832 (Fla. 1993)). Defendants
have failed to cite to either. Further, nonparties to mortgage are
not entitled to attorney’s fees under fee provision in mortgage. See
Novastar Mortg., Inc. v Strassburger, 855 So.2d 130 (Fla. ath pea
2003).
WHEREFORE, Plaintiff respectfully responds to Defendants’
Affirmative Defenses.
CERTIFICATE 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 23 day of December,
2020.
Robertson, Anschutz & Schneid, P.L
Attorneys for Plaintiff
6409 Congress
Avenue, Suite 100
Boca Fl 33487
Raton,
Telephone: (561) 241-6901
Fax: (561) 241-9181
Service Email: mail@rasflaw.com
By: _\S\Lourdes Sanchez Barcia_
Lourdes Sanchez Barcia, Esquire
Florida Bar No. 598461
Communication Email:
lsanchezbarcia@rasflaw.com
19-376234 - ViL
SERVICE LIST
MATOS LEGAL, PLLC
ROSALIND J. MATOS, ESQ.
ATTORNEY FOR ANDRE ST. STEVE KIFFIN
C/O MATOS LEGAL, PLLC
2645 EXECTUTIVE PARK DR. #676
WESTON, FL 33331
PRIMARY EMAIL: ROSALIND@MATOSLEGAL.COM
19-376234 - ViL
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Filing # 118681784 E-Filed 12/23/2020 12:17:44 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. CACE19021666 FREEDOM MORTGAGE CORPORATION Plaintiff, vs. ANDRE ST. STEVE KIFFIN, et. al. Defendant(s). / PLAINTIFF’S REPLY TO ANDRE ST. STEVE KIFFIN’S AFFIRMATIVE DEFENSES Plaintiff, FREEDOM MORTGAGE CORPORATION, pursuant to Florida Rule of Civil Procedure 1.140 (b) and (f), by and through its undersigned attorney, files its Plaintiff’s Reply to Andre St. Steve Kiffin’s Affirmative Defenses, and in support thereof states as follows: 1 Plaintiff hereby denies and avoids each and every affirmative defense presented by Defendant and demands strict proof thereof. FIRST AFFIRMATIVE DEFENSE LACK OF STANDING 2 The Plaintiff is the holder of the note containing a blank indorsement, it is the real party in interest to bring this foreclosure action. See Riggs v. Aurora Loan Services, LLC, 36 So. 3d 932, 933 (Fla. 4th DCA 2010) (“The negotiation of the note by its transfer of possession with a blank indorsement made Aurora Loan the “holder” of the note entitled to enforce it (citation omitted) .”). 3 The note is self-authenticating pursuant to the uCcCc and Florida law. Fla. Stat. §§ 90.902(8); 673.3081. #** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/23/2020 12:17:43 PM.**#* 4 Plaintiff is not required to allege how and when it became the holder of the note pursuant to Florida Statutes subsection 702.015(2) (a), but only that it is the holder of the note. 5 Florida Statutes subsection 702.015(2 provides, (2) A complaint that seeks to foreclose a mortgage or other lien on residential real property, including individual units of condominiums and cooperatives, designed principally for occupation by from one to four families which secures a promissory note must: (a) Contain affirmative allegations expressly made by the plaintiff at the time the proceeding is commenced that the plaintiff is the holder of the original note secured by the mortgage; or (b) Allege with specificity the factual basis by which the plaintiff is a person entitled to enforce the note under s. 673.3011. Fla. Stat. § 702.015(2). 6 Plaintiff’s Complaint contains the affirmative allegation that “Plaintiff holds the Note and Mortgage,” as required under subsection 702.015 (2) (a) See Compl. q 5. Further, a copy of the original note containing a blank indorsement is attached as an exhibit to Plaintiff’s Complaint. 7 As described above, see § 5 infra, Plaintiff has standing to foreclose because it is the holder of the note with a blank indorsement. See McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 174 (Fla. 4th DCA 2012) (“If the note or allonge reflects on its face that the endorsement occurred before the filing of the complaint, this is sufficient to establish standing.”). 8 In addition, either an owner or holder of a note indorsed in blank can have standing to foreclose, as long as he can show that he had possession of the note at the time the foreclosure suit was initiated. U.S. Bank Nat’l Ass’n v. Knight, 90 So. 3d 824, 826 (Fla. 4th DCA 2012). 19-376234 - ViL 9 Plaintiff demonstrated its status as the holder of the note with a blank indorsement as reflected in the allegations and exhibits contained in its Complaint. 10.Defendants’ arguments based on the alleged lack of standing are without merit and should therefore be denied. SECOND AFFIRMATIVE DEFENSES FAILURE OF CONTRACTUAL CONDITION PRECEDENT 11.As to the second affirmative defenses the Defendants next allege that Plaintiff failed to give written notice of default and intent to accelerate to Defendants prior to filing this foreclosure action. 12.Contrary to Defendants’ allegations, Plaintiff did in fact send a notice of default and intent to accelerate to Defendants. See attached Exhibit vale 13. Plaintiff also pled in its Complaint that all conditions precedent have been performed or have occurred, which is all that is required under the Rule. Compl. g ii. See also Fla. R. Civ. P 1.120(c). 14.Defendants’ arguments based on the alleged improper notice are without merit and should therefore be denied. DEMAND FOR ATTORNEY FEES AND COSTS 15. Plaintiff objects to Defendant’s claim for attorney’s fees for failure to cite to any statute or contract that would entitle Defendant to any such fees in this case. “An award of {attorneys'] fees must be supported by a particular contractual, statutory, or other substantive basis.” State, Dep't of Highway Safety & Motor 19-376234 - ViL Vehicles v. Trauth, 971 So. 2d 906, 908 (Fla. 3d DCA 2007). "It is well-settled that attorneys' fees can derive only from either a statutory basis or an agreement between the parties. ” Trytek v. Gale Indus., Inc., 3 So. 3d 1194, 1198 (Fla. 2009) (citing State Farm Fire & Cas. Co. v Palma, 629 So. 2d 830, 832 (Fla. 1993)). Defendants have failed to cite to either. Further, nonparties to mortgage are not entitled to attorney’s fees under fee provision in mortgage. See Novastar Mortg., Inc. v Strassburger, 855 So.2d 130 (Fla. ath pea 2003). WHEREFORE, Plaintiff respectfully responds to Defendants’ Affirmative Defenses. CERTIFICATE 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 23 day of December, 2020. Robertson, Anschutz & Schneid, P.L Attorneys for Plaintiff 6409 Congress Avenue, Suite 100 Boca Fl 33487 Raton, Telephone: (561) 241-6901 Fax: (561) 241-9181 Service Email: mail@rasflaw.com By: _\S\Lourdes Sanchez Barcia_ Lourdes Sanchez Barcia, Esquire Florida Bar No. 598461 Communication Email: lsanchezbarcia@rasflaw.com 19-376234 - ViL SERVICE LIST MATOS LEGAL, PLLC ROSALIND J. MATOS, ESQ. ATTORNEY FOR ANDRE ST. STEVE KIFFIN C/O MATOS LEGAL, PLLC 2645 EXECTUTIVE PARK DR. #676 WESTON, FL 33331 PRIMARY EMAIL: ROSALIND@MATOSLEGAL.COM 19-376234 - ViL