IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT, IN AND FOR BREVARD COUNTY, FLORIDA

CHASE HOME FINANCE, LLC, Plaintiff, vs. THOMAS A. WEBSTER, et al Defendant, Pro Se _____________________________________/

Case No.: 05-2009-CA-74735

DEFENDANT THOMAS WEBSTER'S OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S AFFIRMATIVE DEFENSES

Now comes Defendant Thomas Webster, and pursuant to 1.140 FL. R. Civ. P., opposes Plaintiff's Motion to Strike Defendant's Affirmative Defenses, and in support thereof states: I FACTS 1. On May 21, 2013, the Defendant filed his Amended Answer and Affirmative Defenses. (Document number 62 in Clerk's Docket.) The Plaintiff failed to file a Reply to the Defendant's Affirmative Defenses. On or about July 25, 2012, Plaintiff filed a Motion to Strike Defendant's Affirmative Defenses. II ARGUMENT 2. Rule 1.140(b) states in part: If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert any defense in law or fact to that claim for relief at the trial, except that the objection of failure to state a legal defense in an answer or reply shall be asserted by motion to strike the defense within 20 days after service of the answer or reply. 3. In Buss Aluminum Prods. v. Crown Window Co., 651 So. 2d 694, 695 (Fla. 2nd DCA 1995), the Court stated:

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Florida Rule of Civil Procedure 1.100(a) states that “[i]f an answer... contains an affirmative defense and the opposing party seeks to avoid it, the opposing party shall file a reply containing the avoidance. No other pleadings shall be allowed.” (Emphasis supplied.) Rule 1.140(a)(1) provides twenty days to serve a reply “[i]f a reply is required.” An avoidance is an allegation of additional facts intended to overcome an affirmative defense. Kitchen v. Kitchen, 404 So. 2d 203 (Fla. 2d DCA 1981.) For example, a plaintiff may allege facts establishing waiver or estoppel to overcome a statute of limitation defense. Tuggle v. Maddox, 60 So. 2d 158 (Fla. 1952.) It is well established that a reply should never be used to simply deny an affirmative defense. Moore Meats, Inc. v. Strawn, 313 So. 2d 660 (Fla. 1975); Henry P. Trawick, Jr., Trawick's Florida Practice and Procedure Sec. 11-6 (1993.) (fn 1) For all practical purposes, a document entitled “reply” which does not contain any additional facts in the nature of avoidance is not a pleading. It does nothing to hasten the suit to judgment and is a mere passive effort to keep the suit on the docket. See Eastern Elevator, Inc. v. Page, 263 So. 2d 218 (Fla. 1972.) Even if the standard in Del Duca v. Anthony, 587 So. 2d 1306 (Fla. 1991,) which measures the prosecutorial effect of discovery, were applicable to this document, this stray filing would not pass that test. 4. Defendant's Answer contained affirmative defenses. Pursuant to Rule 1.140(b), the objection of failure to state a legal defense in an answer shall be asserted by motion strike within 20 days after service of the answer. The Plaintiff failed to timely file its Motion to Strike Defendant's Amended Affirmative Defenses in violation of the Florida Rules of Civil Procedure and case law. Wherefore, Plaintiff's motion to strike should be struck as untimely.

August 5, 2013 /s/ Thomas A. Webster Defendant, Pro Se 4655 Elena Way Melbourne, FL 32934 (321) 473-7430 twebster321@hotmail.com

Certificate of Service I hereby certify that a true and correct copy of the foregoing has been furnished by email this 5th day of August, 2013, to Salina Klinghammer, attorney for the plaintiff, at eservice@wolfelawfl.com.

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