Bank, National Association, as Trustee of Maiden Lane Asset-Backed Securities I Trust 2008-1 Plaintiff, Case #: 2008 CA 033414 AW Division #: A W

-vs.Elizabeth Ann Henderson; Mortgage Electronic Registration Systems, Inc., as Nominee for Geneva Mortgage Corporation; EMC Mortgage Corporation; Lakes of Sherbrooke Homeowners Association, Inc. f/k/a Lakes of Lantana Homeowners Association, Inc.; Placid Recreational Association, Inc.; Unknown Parties in Possession # 1; Unknown Parties in Possession #2; If living, and all Unknown Parties claiming by, through, under and against the above named Defendant(s) who are not known to be dead or alive, whether said Unknown Parties may claim an interest as Spouse, Heirs, Devisees, Grantees, or Other Claimants Defendant(s). PLAINTIFF'S



PLAINTIFF, U.S. Bank, National Association, as Trustee of Maiden Lane Asset-Backed Securities I Trust 2008-1, by and through its undersigned counsel, hereby files this Motion to Strike Affirmative Defenses and states as follows: 1. thereof. 2. Defendants' defenses are barred, in whole or in part, by their binding, voluntary Plaintiff denies all of Defendants' affirmative defenses and demands strict proof

agreement to the terms and conditions of the loan. 3. Defendants' Affirmative Defenses contain boilerplate conclusions of law and

blanket allegations, but do not supply any facts to support their statements. It is well established

673.. See Thompson v. Being the holder of a negotiable instrument is all that is necessary for a party to have standing to enforce it and the mortgage note is a negotiable instrument as defined by Florida Statute 673._ 36 So.. Plaintiff is the holder of the Mortgage and Note. LEXIS 11431 (Fla. Inc. v. First. Bank of New York.2d 283 (Fla. Stat. (b) is payable on demand or at a definite time. and (c) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of the money. . §673.3011. App. 138 1988) (certainty unsupported 4. Mason v. 4th DCA of law conclusions by allegations Defendant's of ultimately facts is legally insufficient). 628 So.. if it: (a) is payable to bearer ." BAC Funding Consortium. at the time it is issued.1041 (1)( c). Fifth and Sixth and Affirmative Defenses all claim invalid Several Florida appellate assignments or chain of title of either the Mortgage and/or the Note. and pleading (Fla. see also Fla. 3d 932 (Fla. courts have addressed this issue and all have ruled consistently with the Uniform Commercial Code as it is codified in Florida Statutes chapter 673: "The proper patty with standing to foreclose a note and/or mortgage is the holder of the note and mortgage or the holder's Florida that an affirmative defense must clearly and concisely set out the essential facts and not aver merely legal conclusions. 2010 Fla. with or without interest . Riggs v. A Mortgage Note is a negotiable instrument under Florida law. Stat. 7. Deutsche Bank. 4th DCA 1999).1041(1)(c) as: An unconditional promise or order to pay a fixed amount of money.. Fla.. 28 So. 4th DCA 2010) andTaylorv. 4" DCA 2003). 5th 2010). 3d 936. Rubin. Aurora. 2003 WL 22492343 (Fla. Jean-Jacques. is required when pleading a defense.. 2d DCA 2010). Chase Savings and Loan Inc. 2d 136. 918 (Fla. Cady v. defines a negotiable instrument 727 So..

City Express. Stat. § 673. Co. Further. 184 So. V. the holder of the note may be the person in possession of the note even if it is not payable to the bearer.. there is no requirement of assignment on the note. Mullan v. Rector.C. Fla. . .3051(2) (2010).. claims related to loan origination and from defense which might have been available between the original parties. and its ownership follows the assignment of the debt. but to protect a subsequent bona fide purchaser. Finally. 64 D. Boy. an assignment of mortgage executed into a foreclosing Plaintiff is not necessary at the time of the filing of a foreclosure Complaint. personal defenses will fail against the lender. Stat. 3d DCA 1979).D. Gillian held that. it has frequently been held that a mortgage is but an incident to the debt. 5. 684 (Fla. if that be the intention of the parties . The Supreme Court of Florida in Johns v.C.2d 683. Citibank. 2007). Chemical Residential Mortgage v.3d 681 (Fla. 180 So.. 742 So.2d 300 (Fla. 13. 1938). The debtor has no rights to claim there is a lack of assignment as an assignment is not meant to protect the debtor.20 11 (2).Also. Bank of Pasco County. if the status of holder in due course is established.140. Pursuant to Fla. Plaintiff takes an instrument free and clear from JP Morgan Chase v. the payment of which it secures. Nc:w_Millennial. Fla. LC. Moreover. §673 .2d 503 (Fla. the mortgage in equity passes as an incident to the debt. & Sur. Travelers Cas. Furthermore. 143 (Fla. unless there be some plain and clear agreement to the contrary. Corporation Peruana de Aeropuertas y Aviacion Comerical 3d DCA 1965). 1931). Fla. 367 So. Banle of Miami v. If the note or other debt secured by a mortgage be transferred without any formal assignment of the mortgage. Servo 2d (Callaghan) 99 (M. Ann. as a holder in due course. v. 6 So. 1st DCA 1998). 2nd DCA 2009). 101 Fla. 1097 (Fla. 9. or even a delivery of it. Rep.

6. Without the requisite facts to support an affirmative defense. As a general rule. 2d 19 (Fla 2nd DCA 2006).. 933 So. Therefore. 647 So.1031 (Fla. the party must establish either: (1) that the contract expressly creates rights for them as a third patty. Plaintiff must guess "[T]he at the basis for such defense and ultimately has no idea what to defend against. Cheoy Lee Shipyards. Defendants' Fourth Affirmative Defense must be struck. one who is not a party to an agreement cannot sue for its breach. Greenacre Properties at 23. Greenacre Propelties v. Rao. requirement of certainty will be insisted upon in the pleading of a defense. 2d 1028. Ltd. See also Caretta Trucking v. Defendants' Third Affirmative Defense asserts that Plaintiff failed to provide Defendants' with notice of default and intent to accelerate as required by the notice provision set forth in the Note and Mortgage. 2008 and Plaintiff provided Defendants with a written notice of default and intent to accelerate as required under paragraph 22 of the Mortgage and paragraph 7 of the Note. 9.2010. Third Affirmative Defense is without merit and 8. Defendants are not third party beneficiaries to the pooling and servicing agreement and do not have standing to raise noncompliance therewith. Defendant has been in default of the subject Note and Mortgage since July 1. 7. 4th DCA 1994). To have standing. Defendants' must be struck. or (2) that the provisions of the contract primarily and directly benefit the third patty or a class of persons of which the third patty is a member. A copy of the demand letter sent to the Defendants will be attached to Plaintiff s Affidavit in Support of Summary Judgment. and the certainty required is that the pleader must set forth the facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order provide the latter with a fair opportunity to . Defendants' Second Affirmative Defense "lost Note" must be struck as the original Note and Mortgage were filed with this Honorable Court on or about October 22.

" Zito v. Esq. FL 33324 Lakes of Sherbrooke Homeowners Association. West Palm Beach. Plantation. Plantation.A. Consequently. 3rd DCA. c/o CT Corporation System. Mail on this J_ day of {J IVi her . S. c/o Scott A.A. FROM A DEBT COLLECTOR. FL 33409 . 176 (Fla. 1975). IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. in their affirmative should be required have failed to meet the minimum defenses. to the following: sL Ie f Elizabeth Ann it and prepare his evidence. 2041 Vista Parkway. Suite 400.. therefore. 1200 South Pine Island Road. 2d 175. Korte. P.. they should be stricken to amend if they wish to maintain any defenses to the WHEREFORE. Defendants in the instant case have asserted legal and factual conclusions requirement for legal and without any basis and.. FL 33324 EMC Mortgage Corporation. Suite 102.2011. "THIS COMMUNICATION. West Palm Beach. Stoloff. c/o CT Corporation System. R. 1200 South Pine Island Road. 318 So. sufficiency Defendants Complaint. FL 33411 Mortgage Electronic Registration Systems. Washington Federal Savings & Loan Association of Miami Beach. as Nominee for Geneva Mortgage Corporation.. Inc. Plaintiff requests this Honorable Court enter an Order consistent with the foregoing and strike Defendants' Affirmative Defenses and such further relief that this Honorable Court deems just and proper. c/o Brian K. Inc. 1818 Australian Avenue South." CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by sfU. 10..

Esquire. / ~~ 08-113539 . Inc. 1818 Australian Avenue South. Florida 33431 Telephone: (561) 998-6700 Fax: (561) 998-6707 By: ~~. LLP Attorneys for Plaintiff 2424 North Federal Highway Suite 360 Boca Raton.~-.- . West Palm Beach. FL 33409 SHAPIRO. Dicker. FISHMAN & GACHE. PA. Stoloff.Placid Recreational Association. Krivok & Stoloff. Suite 400.-.. c/o Scott A.

Sign up to vote on this title
UsefulNot useful