Filing # 194623613 E-Filed 03/22/2024 01:14:35 PM
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`ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 03/25/2024 11:42:31 AM
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`nature of the affirmative defenses and to determine whether they have or can developthe facts nec-
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`essary to support it. This avoids a great deal of wasted expense to the litigants and unnecessary
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`judicial effort.
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`UnderFlorida law, “[c]ertainty is required when pleading defenses, and pleading conclusions
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`of law unsupported byallegationsof ultimate fact is legally insufficient.” Cady v. Chevy Chase
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`Savings and Loan, Inc., 528 So. 2d 136, 138 (Fla. 4th DCA 1988); see also Thompson v. Bank of
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`New York, 862, So. 2d 768 (Fla. 4th DCA 2003)(affirmingtrial court’s refusal to consider affirma-
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`tive defenses).
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`In Cady, the Fourth District determined that “[a] careful analysis of each of the af-
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`firmative defensesreflects that they are, on a whole, conclusory in their content, and lacking in any
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`real allegations of ultimate fact demonstrating a good defense to the complaint.”Id.
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`Affirmative defenses do not deny the facts ofthe opposing party’s claim, but instead, raise some new
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`matter which defeats the opposing party’s otherwise valid claim. Tropical Exterminators, Inc. v.
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`Murray, 171 So. 2d 432 (Fla. 2d DCA 1965).
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`Tostate a valid affirmative defense, a pleader must provide a statementof the “ultimate facts”
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`in support of each and every defense. Chris-Craft Indus., Inc. v. Van Valkenberg, 267 So. 2d 642,
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`645 (Fla. 1972). The requirement of pleading ultimate facts supporting the defense is necessary to
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`provide reasonable notice as to the nature of the defense. See Zito v. Washington Fed. Sav. & Loan
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`Ass’n, 318 So. 2d 175, 176 (Fla. 3d DCA 1975) (The Third District stated that “the requirement of
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`certainty will be insisted upon in the pleading of a defense; and the certainty required is that the
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`pleader must set forth the facts in such a manner as to reasonably inform his adversary of what is
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`proposedto be proved in orderto providethe latter with a fair opportunity to meet it and prepare his
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`evidence.”).
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`SPECIFIC ARGUMENTSAS TO AFFIRMATIVE DEFENSES
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`FIRST AFFIRMATIVE DEFENSE: PAYMENT
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`This defense is completely unsupported by any facts, and should bestricken as legally in-
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`sufficient. Notwithstanding, Plaintiff shall provide evidence in support ofits allegations that the
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`loan remains due and owingas alleged in the Complaint.
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`20-04580
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`SECOND DEFENSE: LACHES
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`This defense fails to state any facts in support thereof, and should be stricken for legal in-
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`sufficiency, accordingly;it is further refuted and avoided by the facts. Borrower was under bank-
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`ruptcy protection from 2019 through 2020 at which time the property was surrendered. Covid-19
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`effectively haltedall residential foreclosures for the next two years and FEMA holdslikewise cur-
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`tailed many foreclosures. Moreover, no payments have been madesincethe date of default and the
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`September 7, 2023 Notice of Intent to Accelerate, which was mailed to Borrowerat the property
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`address, did not result in the default being cured. Should the defense notbe stricken, Plaintiff de-
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`mandsstrict proof thereof.
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`THIRD AFFIRMATIVE DEFENSE: STATUTE OF LIMITATIONS
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`The decision of the Florida Supreme Court in Bartram v. U.S. Bank National Association, 211 So.
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`3d 1009 (Fla. 2016) resolved the issue as to the application of the statute of limitations in a residen-
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`tial mortgage foreclosure action. The Bartram court held:
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`“Therefore, with each subsequent default, the statute of limitations runs from the
`date of each new default providing the mortgagee the right, but not the obligation,
`to accelerate all sums due underthe note and mortgage.” (Emphasis added)
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`Subsequently, the 2"! DCA held that even though the default alleged in the complaint was outside
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`the period of the five-year statute of limitations, the allegations of the complaint that the borrowers
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`were in a continualstate of default at the time ofthe filing of the complaint was sufficient to satisfy
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`the five-year statute of limitations. Desylvester v. Bank ofN. Y.Mellon, 219 So, 3d 1016 (Fla 2
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`DCA2017)
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`Asin Desylvester, Plaintiff alleged that the loan wasin a continualstate of default; including the
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`alleged due date and all payments duethereafter.
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`WHEREFORE,havingreplied to the affirmative defenses, Plaintiff respectfully requests
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`that the Court determinethe legal sufficiency of same and Plaintiff’s responsesthereto.
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`20-04580
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`UNITED STATES OF AMERICA ON BEHALF OF THE DEPARTMENTOF JUSTICE
`C/O UNITED STATES ATTORNEY FOR MIDDLEDISTRICT
`400 N. TAMPA STREET, SUITE 3200
`TAMPA,FL 33602
`USAFLM.State.Foreclosures@usdoj.gov
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`OAK RIDGE COURT HOMEOWNERSASSOCIATION, INC
`C/O MARK GURLEY
`1943 OAKRIDGE COURT
`CLEARWATER,FL 33759
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`20-04580
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