"A legal duty breach that caused injury and damage, to the authenticated evidence of which at least one competent fact witness subject to cross-examination will testify under oath."
Trawick's Florida Practice and Procedure would be nice for those who can afford it
On Sunday, January 15, 2012 11:48:03 PM UTC-5, Bob Hurt wrote:
Note that even though I do not trust Foreclosure defense attorneys, that does not mean I consider them totally ignorant. Many have devised clever ways to postpone foreclosure, and you can do much of that yourself without an attorney if you follow the rules. For example, look at the resources at the below web site by a Florida Foreclosure Defense Attorney.
Note the sample answer to foreclosure. It makes some good points. But, if you get your mortgage fully examined by a competent professional, TIMELY, then you can load your answer with more than admissions, denials, and affirmative defenses. You can also craft it as a counter claim and/or cross claim against the servicer, plaintiff, and loan originator.
|Foreclosure Defense Forms|
ANSWERS AND AFFIRMATIVE DEFENSES
NOTICES & SUGGESTIONS
Excerpt from Lexis Nexis document.
Mortgage foreclosures are equitable proceedings and the parties are required to come into court with clean hands. See Carroll & Associates, P.A. v. Galindo, 864 So. 2d 24, 30 (Fla. 3d DCA 2003). Judges feel a special obligation to “do equity” in these actions. While negligence, or trespass on the case, is technically a cause of action ex delicto, it frequently comes into play in contracts for service, especially building contracts. For various, valid, tactical and/or strategic reasons, the practitioner may want to include a claim of negligent performance of contractually assumed or imposed duties, in addition to or instead of just a claim for breach of contract. For negligence actions, there is a four year limitations period which is prescribed by Fla. Stat. § 95.11(3)(a). A negligently performed contractual obligation may run afoul of the economic loss rule. See Juan Ramirez, Jr., 1 Florida Civil Procedure § 7-6(a). Many cases become bogged down at the motion stage when a plaintiff has filed a multi-count complaint that includes “the kitchen sink.” This strategy may frighten a defendant into settling, but it will not move the case expeditiously to trial. In general, tort actions are governed by three statutes of limitations. The four year limitations period is prescribed by Fla. Stat. § 95.11(3)(a) for negligence actions, Fla. Stat § 95.11(3)(o) governs for “any other intentional tort,” and Fla. Stat. § 95.11(3)(p) governs for “any action not specifically provided for in these statutes.” Actions for fraud must be commenced within four years (Fla. Stat. § 95.11(3)(j). Fraud carries a four year statute of limitations from the time the cause of action is discovered. Yet, even if the statute of limitations has not expired, laches may be a viable defense. Therefore, once fraud is discovered, suit should be filed as soon as practicable. Donovan v. Armour & Co., 33 So. 2d 601 (Fla. 1948). Puchner v. Bache Halsey Stuart, Inc., 553 So. 2d 216 (Fla. 3d DCA 1989) (whether the plaintiff should have known that he had a cause of action for fraud is ordinarily a jury question). ...a mortgagee brought an action for deficiency and to foreclose. The mortgagor’s counterclaim for fraud was barred by the statute of limitations. However, the mortgagor was entitled as an affirmative defense to reduce the aggregate unpaid balance of the mortgages after the fraud was rectified by reduction of the unpaid balance. See Hilsenroth v. Kessler, 446 So. 2d 147 (Fla. 3d DCA 1983).
A foreclosure complaint should contain all these elements (see sample below). People who sue foreclosure should allege they have standing, and I can deny that they have standing because of not owning or holding the actual note, or for violating the UCC requirements for enforcing a lost note. See this for negotiable instruments (like the note). I would Memorize these provisions.
I might allege that the plaintiff did not meet the elements of breach of contract claim that justifies foreclosure, deny that the plaintiff possessed the note when it got lost, etc. I could do a variety of things to stall the proceedings while I got my mortgage examined to find causes of action for suing the lender.
Excerpts from 2010 Florida Causes of Action book by Wites and Kaplan:
§4:100.1 Fla.R.Civ.P. Form 1.944
Plaintiff, A.B., sues defendant, C.D., and alleges:NOTE: This form is for installment payments with acceleration. It omits allegations about junior
1. This is an action to foreclose a mortgage on real property in _________ County, Florida.
2. On _____(date)_____, defendant executed and delivered a promissory note and a mortgage
securing payment of the note to plaintiff. The mortgage was recorded on _____(date)_____, in
Official Records Book _______ at page _______ of the public records of __________ County,
Florida, and mortgaged the property described in the mortgage then owned by and in possession
of the mortgagor, a copy of the mortgage containing a copy of the note being attached.
3. Plaintiff owns and holds the note and mortgage.
4. The property is now owned by defendant who holds possession.
5. Defendant has defaulted under the note and mortgage by failing to pay the payment due
_____(date)_____, and all subsequent payments.
6. Plaintiff declares the full amount payable under the note and mortgage to be due.
7. Defendant owes plaintiff $__________ that is due on principal on the note and mortgage, interest
from _____(date)_____, and title search expense for ascertaining necessary parties to this action.
8. Plaintiff is obligated to pay plaintiff’s attorneys a reasonable fee for their services.
WHEREFORE plaintiff demands judgment foreclosing the mortgage and, if the proceeds of the sale
are insufficient to pay plaintiff’s claim, a deficiency judgment.
encumbrances, unpaid taxes, and unpaid insurance premiums, and for a receiver. They must be added
when proper. Copies of the note and mortgage must be attached.
See Amendments to the Florida Rules of Civil Procedure, 773 So.2d 1098 (Fla. 2000).
§4:100.2 Statute of Limitations
Five years, if final maturity of obligation is ascertainable; twenty year, if final maturity of obligation is not ascertainable; Fla. Stat. §95.281; Monte v. Tipton, 612 So.2d 714, 716 (Fla. 2nd DCA 1993).
1. 37 Fla. Jur. 2d Mortgages and Deeds of Trust §§245–274 (2004).
2. 10A Fla. Jur. 2d Consumer & Borrower Protection §§114–121 (2003).
3. 55 Am. Jur. 2d Mortgages §§512–942 (1996).
4. 59, 59A C.J.S. Mortgages §§490–990 (1998).
5. Florida Statutes §45.031 (2005) (Judicial Sales Procedure).
6. Florida Statutes §45.0315 (2005) (Right of Redemption).
7. Florida Statutes §494.0078 (2005) (Florida Fair Lending Act).
8. Florida Statutes §687.01 (2005) (Rate of Interest in Absence of Contract).
9. Florida Statutes §695.01 (2005) (Conveyances to be Recorded).
10. Florida Statutes §697.01 (2005) (Instruments Deemed Mortgages).
11. Florida Statutes §701.01 (2005) (Assignment).
12. Florida Statutes §702.01 (2005) (Equity).
13. David H. Simmons, Agreement for Deed as a Creative Financing Technique, 55 Fla. Bar J. 395 (1981).
14. Mortgage Foreclosures and Alternatives (4th ed. 2005), ISBN 0-8205-7982-4.
15. Kendall Coffee, Florida Foreclosures, D&S Florida Practice Series, ISBN 0-327-01367-2.
§3:10 BREACH OF CONTRACT
§3:10.1 Elements of Cause of Action - Florida Supreme Court
[No citation for this edition.]
1. Hazen v. Cobb, 117 So. 853, 859 (Fla. 1928) (“[w]e have held that a cause of action for an entire breach of the
contract immediately arises upon the wrongful discharge of an employee under a contract for a definite time,
and it is not necessary to await the termination of that period before asking the courts for redress.”).
2. Fontainebleau Hotel Corp. v. Walters, 246 So.2d 563, 565 (Fla. 1971).
Elements of Cause of Action - 2nd DCA
The elements of an action for breach of contract are:
1. the existence of a contract;
2. a breach of the contract; and
3. damages resulting from the breach.
Rollins, Inc. v. Butland, 951 So.2d 860, 876 (Fla. 2d DCA 2006) (“In addition, in order to maintain an
action for breach of contract, a claimant must also prove performance of its obligations under the contract or a
legal excuse for its nonperformance.”).
1. Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253, 255 (Fla. 2d DCA 1994) (stating that the plaintiff properly
pled a breach of contract by alleging an offer, acceptance, consideration, a contract, breach of the contract and
2. Perry v. Cosgrove, 464 So.2d 664, 667 (Fla. 2d DCA 1985) (“The complaint alleged the execution of an oral
contract, the obligation thereby assumed, and a breach. It therefore set forth sufficient facts which taken as
true, would state a cause of action for breach of contract.”).
3. Cerniglia v. Davison Chemical Co., 145 So.2d 254, 255 (Fla. 2d DCA 1962).
Statute of Limitations
Fla. Stat. §95.11(2)(b)(five years for written contract); §95.11(3)(k)(four years for oral contract).
11 Fla. Jur. 2d Contracts §§262–273 (2003).
17A Am. Jur. 2d Contracts §§699–712 (2004).
17B C.J.S. Contracts §§640–649 (1999).
Florida Standard Jury Instruction (Civ.) MI 12.1.
1. Abandonment of Contract: Abandonment of contract is an affirmative defense that the defendant must raise in
its answer or otherwise is waived. American Enviro-Port, Inc. v. Williams, 489 So.2d 839 (Fla. 1st DCA
2. Act of God: If the losses or injuries are caused by an act of God that could not have been foreseen and from
which the carrier could not by the exercise of due care protect the goods, the carrier is not liable. Seaboard Air
Line Ry. Co. v. Mullin, 70 So. 467, 469 (Fla. 1915).
3. Breach by Other Party: When one party to a contract unjustifiably refuses to perform his agreement in
whole, or in any substantial part, the other party has the option to rescind the entire contract, provided he
offers to do so within a reasonable time, and will restore what he has received, and provided that the situation
of the parties remains so far unchanged that they can be restored to their original position. Savage v. Horne, 31
So.2d 477, 482 (Fla. 1947). See also Bryan and Sons Corp. v. Klefstad, 237 So.2d 236, 238 (Fla. 4th DCA
1970), appeal after remand, 265 So.2d 382 (Fla. 4th DCA 1972).
4. Contractors: Generally, the liability of a contractor is cut off after the owner has accepted the work
performed if the alleged defect is a patent defect which the owner could have discovered and remedied.
However, the test for patency is not whether or not the condition was obvious to the owner, but whether or not
the dangerousness of the condition was obvious had the owner exercised reasonable care. Florida Dept. of
Transportation v. Capeletti Bros., Inc., 743 So.2d 150, 152 (Fla. 3d DCA 1999), rev. denied, 760 So.2d 945
5. Damages Required: Not all breaches of contract result in damages and the law furnishes a remedy only for
such wrongful acts as result in injury or damage. Scott-Steven Development Corp. v. Gables by the Sea, Inc.,
167 So.2d 763, 764 (Fla. 3d DCA 1964), cert. denied, 174 So.2d 32 (Fla. 1965).
6. Discharge: A material breach by one party may be considered a discharge of the other party’s obligations
thereunder. Nacoochee Corp. v. Pickett, 948 So.2d 26, 30 (Fla. 1st DCA 2006).
7. Duress: Assuming duress was present in the execution of the instrument, which position we do not favor, the
agreement would not have been void, but only voidable. Davis v. Hefty Press, Inc., 11 So.2d 884, 886 (Fla.
8. Failure of Consideration: A failure of consideration is a defense to a contract. Vichaikul v. S.C.A.C.
Enterprises, Inc., 616 So.2d 100 (Fla. 2d DCA 1993). The slightest detriment to the promisee is sufficient
consideration to bind the promisor. Maryland Casualty Company v. Krasnek, 174 So.2d 541, 543 (Fla.
1965).9. Fraud, Contract Induced by: It is a fundamental proposition that a contract induced by fraud is voidable.
Lance Holding Co. v. Ashe, 533 So.2d 929, 930 (Fla. 5th DCA 1988).
10. Frustration of Purpose: Frustration of purpose refers to that condition surrounding the contracting parties
where one of the parties finds that the purposes for which it bargained, and which purposes were know to the
other party, have been frustrated because of the failure of consideration, or impossibility of performance by
the other party. Even under theories which permit a broader application of the doctrine of commercial
frustration, the defense is not available concerning difficulties which could reasonably have been foreseen by
the promisor at the creation of the contract. Home Design Center–Joint Venture v. County Appliances of
Naples, 563 So.2d 767, 770 (Fla. 2d DCA 1990).
11. Hindering the Performance of the Other: One who prevents or makes impossible the performance or
happening of a condition precedent upon which his liability by the terms of a contract is made to depend
cannot avail himself of its nonperformance. Hanover Realty Corp. v. Codomo, 95 So.2d 420, 423 (Fla. 1957).
12. Illegality: An agreement that is violative of a provision of a constitution or a valid statute, or an agreement
which cannot be performed without violating such a constitutional or statutory provision, is illegal and void.
When a contract or agreement, express or implied, is tainted with the vice of such illegality, no alleged right
founded upon the contract or agreement can be enforced in a court of justice. Where the parties to such an
agreement are in pari delicto the law will leave them where it finds them, relief will be refused in the courts
because of the public interest. Local No. 234 of United Association of Journeymen and Apprentices of
Plumbing and Pipefitting Industry of United States and Canada v. Henley & Beckwith, Inc., 66 So.2d 818, 821
(Fla. 1953). See also McIntyre v. Norman, 429 So.2d 1296, 1297 (Fla. 3d DCA 1983), rev. denied, 438 So.2d
833 (Fla. 1983).
13. Impossibility of Performance: Impossibility of performance refers to those factual situations, too numerous
to catalog, where the purposes, for which the contract was made, have, on one side, become impossible to
perform. As a general rule, a contract is not invalid, nor is the obligor discharged from its binding effect,
because the contract turns out to be difficult or burdensome to perform. Home Design Center—Joint Venture
v. County Appliances of Naples, 563 So.2d 767, 769 (Fla. 2d DCA 1990). See also McIntyre v. Norman, 429
So.2d 1296, 1297 (Fla. 3d DCA 1983), rev. denied, 438 So.2d 833 (Fla. 1983). The doctrine of “impossibility”
must be applied with caution and is not available concerning intervening difficulties which could reasonably
have been foreseen and could have been controlled by an express provision of the agreement. See Am.
Aviation, Inc. v. Aero-Flight Serv., Inc., 712 So.2d 809 (Fla. 4th DCA 1998); Home Design Ctr.—Joint
Venture v. County Appliances of Naples, Inc., 563 So.2d 767 (Fla. 2d DCA 1990); Walter T. Embry, Inc. v.
LaSalle Nat. Bank, 792 So.2d 567, 570 (Fla. 4th DCA 2001), subsequent appeal, 868 So.2d 661 (Fla. 4th
14. Mistake: Florida law permits a party to rescind a contact based on unilateral mistake unless the mistake
results from an inexcusable lack of due care or unless the other party has so detrimentally relied on the contact
that it would be inequitable to order rescission. Florida Insurance Guaranty Association, Inc. v. Love, 732
So.2d 456, 457 (Fla. 2d DCA 1999). A mistake, whether unilateral or mutual, must go to a material,
substantial element of a contract in order to justify rescission. Williams, Salomon, Kanner, Damian, Weissler
& Brooks v. Harbour Club Villas Condominium Association, Inc., 436 So.2d 233, 235 (Fla. 3d DCA 1983).
15. Rescission: While we have found no Florida cases expressly stating that rescission is an affirmative defense, it
appears that rescission falls within the general definition of that which is included within the nature of an
affirmative defense. Joseph Buckeck Construction Corp. v. Music, 420 So.2d 410, 414 (Fla. 1st DCA 1982).
Florida law permits a party to rescind a contract based on unilateral mistake unless the mistake results from an
inexcusable lack of due care or unless the other party has so detrimentally relied on the contract that it would
be inequitable to order rescission. Florida Insurance Guaranty Assoc., Inc. v. Love, 732 So.2d 456, 457 (Fla.
2d DCA 1999).
16. Sovereign Immunity: In County of Brevard v. Miorelli Engineering, Inc., 703 So.2d 1049 (Fla. 1997), the
court ruled that under section 768.28, the legislature authorized state entities to enter into contracts and waived
sovereign immunity as to express contracts. It concluded that if disputed work is not expressly part of the
original contract or a change order, and it is not an implied part of the contract, sovereign immunity bars
recovery for the disputed work because it is “outside” the contract. W&J Construction Corp. v.
Fanning/Howey Associates, 741 So.2d 582, 584 (Fla. 5th DCA 1999).
17. Unconscionability: Unconscionability is an affirmative defense which must be raised by proper pleading.
Barakat v. Broward County Housing Authority, 771 So.2d 1193, 1194 (Fla. 4th DCA 2000).§3:10.5
1. Anticipatory Repudiation: Anticipatory repudiation relieves the non-breaching party of its duty to further
perform and creates in it an immediate cause of action for breach of contract. Twenty-Four Collection, Inc. v.
M. Weinbaum Construction, Inc., 427 So.2d 1110, 1111 (Fla. 3d DCA 1983).
2. Lost Chance or Opportunity: It is now an accepted principle of contract law, nonetheless, that recovery will
be allowed where a plaintiff has been deprived of an opportunity or chance to gain an award or profit even
where damages are uncertain. Miller v. Allstate Insurance Co., 573 So.2d 24, 29 (Fla. 3d DCA 1990), rev.
denied, 581 So.2d 1307 (Fla. 1991).
3. Lost Profits: To recover damages for lost profits in a breach of contract action, a party must prove a breach of
contract, that the party actually sustained a loss as a proximate result of that breach, that the loss was or should
have been within the reasonable contemplation of the parties, and that the loss alleged was not remote,
contingent, or conjectural and the damages were reasonably certain. Frenz Enterprises, Inc. v. Port
Everglades, 746 So.2d 498, 504 (Fla. 4th DCA 1999).
4. Oral Contract: To state a cause of action for breach of an oral contract, a plaintiff is required to allege facts
that, if taken as true, demonstrate that the parties mutually assented to “a certain and definite proposition” and
left no essential terms open. Jacksonville Port Authority v. W.R. Johnson Enterprises, Inc., 624 So.2d 313
(Fla. 1st DCA 1993), rev. denied, 634 So.2d 629 (Fla. 1994); W.R. Townsend Contracting, Inc. v. Jensen Civil
Const., Inc. 728 So.2d 297, 300 (Fla. 1st DCA 1999). See Complaint Library, Form 3:10-2 (oral contract) on
5. Prejudgment Interest: Prejudgment interest is an element of damages for a breach of contract. Pelaez v.
Persons, 664 So.2d 1022, 1023 (Fla. 2d DCA 1995).
6. Rescission: A mere breaching of a contract is not necessarily a rescinding of the contract. When a contract is
rescinded it is done away with and ceases to be a contract. When a contract is breached the contract continues
to live and the parties have their rights to damages for the breach instead of on the theory of the contract being
rescinded. If one party to a contract renders performance impossible, the opposite party may at his election
rescind it. Givens v. Vaughn-Griffin Packing Co., 1 So.2d 714, 719 (Fla. 1941).
7. Settlement Agreements: Settlements are construed in accordance with the rules for interpretation of
contracts. Treasure Coast, Inc. v. Ludlum Construction, Inc., 760 So.2d 232, 234 (Fla. 4th DCA 2000).