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Filing #79727653 E-Filed 10/23/2018 12:35:39 PM
IN THE CIRCUIT COURT OF THE NINTH
JUDICIAL CIRCUIT IN AND FOR ORANGE
COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 2017-CA-008145-O
US BANK NATIONAL ASSOCIATION,
AS SUCCESSOR TRUSTEE, TO BANK
OF AMERICA, NATIONAL
ASSOCIATION, SUCCESSOR BY
MERGER TO LASALLE NATIONAL
ASSOCIATION, AS TRUSTEE FOR
OWNIT MORTGAGE LOAN TRUST,
MORTGAGE LOAN ASSET-BACKED
CERTIFICATES, SERIES 2006-7,
Plaintiff,
VS.
WANDA AGOSTO A/K/A WANDA
AGOSTO RODRIGUEZ AND RAFAEL
AGOSTO A/K/A RAFAEL O. AGOSTO. >
et. al.
Defendant(s),
/
REPLY TO AFFIRMATIVE DEFENSES TO AMENDED COMPLAINT OF
DEFENDANT, WANDA AGOSTO A/K/A WANDA AGOSTO RODRIGUEZ
Plaintiff, US BANK NATIONAL ASSOCIATION, AS SUCCESSOR TRUSTEE, TO
BANK OF AMERICA, NATIONAL ASSOCIATION, SUCCESSOR BY MERGER TO
LASALLE NATIONAL ASSOCIATION, AS TRUSTEE FOR OWNIT MORTGAGE LOAN
TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2006-7, by and
through its undersigned attorney, hereby files this reply to the Affirmative Defenses to Amended
Complaint of Defendant, WANDA AGOSTO A/K/A WANDA AGOSTO RODRIGUEZ
("Defendant"), and states as follows:
PIA AN UAE AIMED
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Plaintiff hereby denies and avoids each and every affirmative defense presented by Defendant
and demands strict proof thereof.
Affirmative defenses require the recitation of ultimate facts which support the position that
the plaintiff is precluded from recovery. See Zito v. Washington Federal Savings & Loan
Association of Miami Beach, 318 So. 2d 175 (Fla. 3d DCA 1975).
To assert such a fact, the allegations made in the affirmative defenses must be properly
directed at the allegations made in the complaint.
A purported defense which is nothing more than a denial of fact or a conclusion of law does
not set forth a basis upon which judgment may be precluded. Wiggins v. Protmay, 430 So. 2d
541 (Fla Ist 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 3d DCA 1982) (citing Chris Craft Industries, Inc. v.
Van Valkenberg, 267 So. 2d 642 (Fla. 1972)). Certainty is required when pleading defenses
and claims alike. Zito v. Washington Federal Savings & Loan Association of Miami Beach,
318 So.2d 175 (Fla. 3d DCA 1975).
First Affirmative Defense: Failure to Comply with Condition Precedent
5. Asa first affirmative defense, Defendant alleges Plaintiff failed to prove that it complied with
a condition precedent by attaching proof of notice of default and intent to accelerate to its
complaint.
However, failure of a condition precedent is only a defense to contract enforcement if the
failure is material and is the source of prejudice to the party the contract is being enforced
against. Gorel v. Bank of New York Mellon, 165 So. 3d 44, 47 (Fla. Sth DCA 2015) (“Absent
some prejudice, the breach of a condition precedent does not constitute a defense to the
17-042242 - wT
enforcement of an otherwise valid contract.”); Allstate Floridian Ins. Co. v. Farmer, 104 So.
3d 1242, 1248-49 (Fla. 5th DCA 2012) (holding breach of condition precedent must be
material, meaning one causing prejudice, to constitute defense to enforcement of contract);
see also Vasilevskiy v. Wachovia Bank, Nat. Assn., 171 So, 3d 192, 192-93 (Fla. Sth DCA
2015). Defendant has not alleged that she intended to cure the default but was unable to
because of the allegedly insufficient notice of default, or otherwise specified the manner in
which she was prejudiced by Plaintiff's alleged failure to provide a notice of default.
Second Affirmative Defense: Damages
7. Asa second affirmative defense, Defendant states she contests the amount due and owing as
alleged in paragraph 10 of Plaintiffs complaint because Plaintiff did not attach any
supporting documentation to evidence the amount of damages claimed.
First and foremost, Florida law does not require specific facts to be set forth in the initial
pleading. Rather, the Florida Rules of Civil Procedure 1.110(b) only require a pleading
contain “a short and plain statement of the ultimate facts showing that the pleader is entitled
to relief.” In Ranger Construction Industries, Inc. v. Martin Companies of Daytona, Inc.,
Florida’s Fifth District Court of Appeals held that “[RJather than intricate and complex
allegations designed to plead a litigant to victory, brevity and clarity in the statement of the
essential facts upon which the claim for relief are the hallmarks ofa good pleading.” 881 So.
2d 677, 680 (Fla. 5th DCA 2004). Accordingly, Plaintiff is not required to plead fine details
of its case in the initial pleading.
Furthermore, Defendant fails to assert any facts to support this claim.
10. 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.
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2d 1017 (Fla. 3d DCA 1982) (citing Chris Craft Indus., Inc. v. Van Valkenberg, 267 So. 2d
642 (Fla. 1972)).
Robertson, Anschutz & Schneid, P.L.
Attorney for Plaintiff
6409 Congress Avenue, Suite 100
Boca Raton, Florida 33431
Telephone: 561-241-6901
Fax: 561-997-6909
By: _/s/: Ivy J. Taub
Ivy J. Taub, Esquire
Service E-mail: mail@rasflaw.com
Communication E-mail: itaub@rasflaw.com
Florida Bar No. 47817
17-042242 - IvT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed on this
23rd day of October, 2018, to the attached service list.
ROBERTSON, ANSCHUTZ & SCHNEID, P.L.
Attorney 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/: Ivy J. Taub
Ivy J. Taub, Esquire
Communication E-mail: itaub@rasflaw.com
Florida Bar No. 47817
SERVICE LIST
MARTIN LAW GROUP, P.L.
ANTONIO G. MARTIN
ATTORNEY FOR WANDA AGOSTO A/K/A WANDA AGOSTO RODRIGUEZ A/K/A
WANDA I. AGOSTA A/K/A WANDA I. RODRIGUEZ
C/O MARTIN LAW GROUP, P.L.
1420 CELEBRATION BLVD SUITE 200
CELEBRATION, FL 34747
PRIMARY EMAIL: INFO@CALLMARTINLAWGROUP.COM
RAFAEL AGOSTO A/K/A RAFAEL O. AGOSTO
3200 OLD WINTER GARDEN RD APT 2024
OCOEE, FL 34761
BLANK ROME, LLP
17-042242 - wT
DANIEL S. HURTES
ATTORNEY FOR MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS
NOMINEE FOR OWNIT MORTGAGE SOLUTIONS, INC.
C/O BLANK ROME, LLP
500 E. BROWARD BLVD., SUITE 2100
FT LAUDERDALE, FL 33394
PRIMARY EMAIL: DHURTES@BLANKROME.COM
SECONDARY EMAIL: BRFLESER VICE@BLANKROME.COM
ORANGE COUNTY ATTORNEY'S OFFICE
CRISTINA T. BERRIOS, ESQ.
ATTORNEY FOR ORANGE COUNTY, FL
C/O ORANGE COUNTY ATTORNEY'S OFFICE
201 S. ROSALIND AVE, 3RD FLOOR
ORLANDO, FL 32802
PRIMARY EMAIL: FORECLOSURE.ESERVE@OCFL.NET
ISPC
MICHAEL D. GINSBERG
ATTORNEY FOR THE INDEPENDENT SAVINGS PLAN COMPANY DBA ISPC
C/O ISPC
1115 GUNN HIGHWAY SUITE 100
ODESSA, FL 33556
PRIMARY EMAIL: FC-ISPC@THEISPC.COM
SECONDARY EMAIL: MDGLAW@THEISPC.COM
BLANK ROME, LLP
DANIEL S. HURTES
ATTORNEY FOR U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE
CBASS MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-SL1
C/O BLANK ROME, LLP
500 E. BROWARD BLVD., SUITE 2100
FT LAUDERDALE, FL 33394
PRIMARY EMAIL: DHURTES@BLANKROME.COM
SECONDARY EMAIL: BRFLESERVICE@BLANKROME.COM
MARTIN LAW GROUP, P.L.
ANTONIO G. MARTIN
ATTORNEY FOR ANTONIO G. MARTIN, ESQ, AS TRUSTEE OF THE DERRICK DRIVE
LAND TRUST #6826 DATED AUGUST 1, 2017
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C/O MARTIN LAW GROUP, P.L.
1420 CELEBRATION BLVD SUITE 200
CELEBRATION, FL 34747
PRIMARY EMAIL: INFO@CALLMARTINLAWGROUP.COM
UNKNOWN SUCCESSOR TRUSTEE OF THE DERRICK DRIVE LAND TRUST #6826
DATED AUGUST 1, 2017
6826 DERRICK DRIVE
ORLANDO, FL 32818
17-042242 - IvT
Preview
Filing #79727653 E-Filed 10/23/2018 12:35:39 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 2017-CA-008145-O US BANK NATIONAL ASSOCIATION, AS SUCCESSOR TRUSTEE, TO BANK OF AMERICA, NATIONAL ASSOCIATION, SUCCESSOR BY MERGER TO LASALLE NATIONAL ASSOCIATION, AS TRUSTEE FOR OWNIT MORTGAGE LOAN TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2006-7, Plaintiff, VS. WANDA AGOSTO A/K/A WANDA AGOSTO RODRIGUEZ AND RAFAEL AGOSTO A/K/A RAFAEL O. AGOSTO. > et. al. Defendant(s), / REPLY TO AFFIRMATIVE DEFENSES TO AMENDED COMPLAINT OF DEFENDANT, WANDA AGOSTO A/K/A WANDA AGOSTO RODRIGUEZ Plaintiff, US BANK NATIONAL ASSOCIATION, AS SUCCESSOR TRUSTEE, TO BANK OF AMERICA, NATIONAL ASSOCIATION, SUCCESSOR BY MERGER TO LASALLE NATIONAL ASSOCIATION, AS TRUSTEE FOR OWNIT MORTGAGE LOAN TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2006-7, by and through its undersigned attorney, hereby files this reply to the Affirmative Defenses to Amended Complaint of Defendant, WANDA AGOSTO A/K/A WANDA AGOSTO RODRIGUEZ ("Defendant"), and states as follows: PIA AN UAE AIMED 17-042242 - IvT Plaintiff hereby denies and avoids each and every affirmative defense presented by Defendant and demands strict proof thereof. Affirmative defenses require the recitation of ultimate facts which support the position that the plaintiff is precluded from recovery. See Zito v. Washington Federal Savings & Loan Association of Miami Beach, 318 So. 2d 175 (Fla. 3d DCA 1975). To assert such a fact, the allegations made in the affirmative defenses must be properly directed at the allegations made in the complaint. A purported defense which is nothing more than a denial of fact or a conclusion of law does not set forth a basis upon which judgment may be precluded. Wiggins v. Protmay, 430 So. 2d 541 (Fla Ist 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 3d DCA 1982) (citing Chris Craft Industries, Inc. v. Van Valkenberg, 267 So. 2d 642 (Fla. 1972)). Certainty is required when pleading defenses and claims alike. Zito v. Washington Federal Savings & Loan Association of Miami Beach, 318 So.2d 175 (Fla. 3d DCA 1975). First Affirmative Defense: Failure to Comply with Condition Precedent 5. Asa first affirmative defense, Defendant alleges Plaintiff failed to prove that it complied with a condition precedent by attaching proof of notice of default and intent to accelerate to its complaint. However, failure of a condition precedent is only a defense to contract enforcement if the failure is material and is the source of prejudice to the party the contract is being enforced against. Gorel v. Bank of New York Mellon, 165 So. 3d 44, 47 (Fla. Sth DCA 2015) (“Absent some prejudice, the breach of a condition precedent does not constitute a defense to the 17-042242 - wT enforcement of an otherwise valid contract.”); Allstate Floridian Ins. Co. v. Farmer, 104 So. 3d 1242, 1248-49 (Fla. 5th DCA 2012) (holding breach of condition precedent must be material, meaning one causing prejudice, to constitute defense to enforcement of contract); see also Vasilevskiy v. Wachovia Bank, Nat. Assn., 171 So, 3d 192, 192-93 (Fla. Sth DCA 2015). Defendant has not alleged that she intended to cure the default but was unable to because of the allegedly insufficient notice of default, or otherwise specified the manner in which she was prejudiced by Plaintiff's alleged failure to provide a notice of default. Second Affirmative Defense: Damages 7. Asa second affirmative defense, Defendant states she contests the amount due and owing as alleged in paragraph 10 of Plaintiffs complaint because Plaintiff did not attach any supporting documentation to evidence the amount of damages claimed. First and foremost, Florida law does not require specific facts to be set forth in the initial pleading. Rather, the Florida Rules of Civil Procedure 1.110(b) only require a pleading contain “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” In Ranger Construction Industries, Inc. v. Martin Companies of Daytona, Inc., Florida’s Fifth District Court of Appeals held that “[RJather than intricate and complex allegations designed to plead a litigant to victory, brevity and clarity in the statement of the essential facts upon which the claim for relief are the hallmarks ofa good pleading.” 881 So. 2d 677, 680 (Fla. 5th DCA 2004). Accordingly, Plaintiff is not required to plead fine details of its case in the initial pleading. Furthermore, Defendant fails to assert any facts to support this claim. 10. 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. 17-042242 - IlvT 2d 1017 (Fla. 3d DCA 1982) (citing Chris Craft Indus., Inc. v. Van Valkenberg, 267 So. 2d 642 (Fla. 1972)). Robertson, Anschutz & Schneid, P.L. Attorney for Plaintiff 6409 Congress Avenue, Suite 100 Boca Raton, Florida 33431 Telephone: 561-241-6901 Fax: 561-997-6909 By: _/s/: Ivy J. Taub Ivy J. Taub, Esquire Service E-mail: mail@rasflaw.com Communication E-mail: itaub@rasflaw.com Florida Bar No. 47817 17-042242 - IvT CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed on this 23rd day of October, 2018, to the attached service list. ROBERTSON, ANSCHUTZ & SCHNEID, P.L. Attorney 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/: Ivy J. Taub Ivy J. Taub, Esquire Communication E-mail: itaub@rasflaw.com Florida Bar No. 47817 SERVICE LIST MARTIN LAW GROUP, P.L. ANTONIO G. MARTIN ATTORNEY FOR WANDA AGOSTO A/K/A WANDA AGOSTO RODRIGUEZ A/K/A WANDA I. AGOSTA A/K/A WANDA I. RODRIGUEZ C/O MARTIN LAW GROUP, P.L. 1420 CELEBRATION BLVD SUITE 200 CELEBRATION, FL 34747 PRIMARY EMAIL: INFO@CALLMARTINLAWGROUP.COM RAFAEL AGOSTO A/K/A RAFAEL O. AGOSTO 3200 OLD WINTER GARDEN RD APT 2024 OCOEE, FL 34761 BLANK ROME, LLP 17-042242 - wT DANIEL S. HURTES ATTORNEY FOR MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR OWNIT MORTGAGE SOLUTIONS, INC. C/O BLANK ROME, LLP 500 E. BROWARD BLVD., SUITE 2100 FT LAUDERDALE, FL 33394 PRIMARY EMAIL: DHURTES@BLANKROME.COM SECONDARY EMAIL: BRFLESER VICE@BLANKROME.COM ORANGE COUNTY ATTORNEY'S OFFICE CRISTINA T. BERRIOS, ESQ. ATTORNEY FOR ORANGE COUNTY, FL C/O ORANGE COUNTY ATTORNEY'S OFFICE 201 S. ROSALIND AVE, 3RD FLOOR ORLANDO, FL 32802 PRIMARY EMAIL: FORECLOSURE.ESERVE@OCFL.NET ISPC MICHAEL D. GINSBERG ATTORNEY FOR THE INDEPENDENT SAVINGS PLAN COMPANY DBA ISPC C/O ISPC 1115 GUNN HIGHWAY SUITE 100 ODESSA, FL 33556 PRIMARY EMAIL: FC-ISPC@THEISPC.COM SECONDARY EMAIL: MDGLAW@THEISPC.COM BLANK ROME, LLP DANIEL S. HURTES ATTORNEY FOR U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE CBASS MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-SL1 C/O BLANK ROME, LLP 500 E. BROWARD BLVD., SUITE 2100 FT LAUDERDALE, FL 33394 PRIMARY EMAIL: DHURTES@BLANKROME.COM SECONDARY EMAIL: BRFLESERVICE@BLANKROME.COM MARTIN LAW GROUP, P.L. ANTONIO G. MARTIN ATTORNEY FOR ANTONIO G. MARTIN, ESQ, AS TRUSTEE OF THE DERRICK DRIVE LAND TRUST #6826 DATED AUGUST 1, 2017 17-042242 - IvT C/O MARTIN LAW GROUP, P.L. 1420 CELEBRATION BLVD SUITE 200 CELEBRATION, FL 34747 PRIMARY EMAIL: INFO@CALLMARTINLAWGROUP.COM UNKNOWN SUCCESSOR TRUSTEE OF THE DERRICK DRIVE LAND TRUST #6826 DATED AUGUST 1, 2017 6826 DERRICK DRIVE ORLANDO, FL 32818 17-042242 - IvT