Foreclosure Summary Judgment Defense

Foreclosure in miami dade county plaintiff replied to answer

The request for summary judgment

Plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR GSAMP TRUST *-HE4 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES *- HE4, by and through its undersigned attorney, hereby files this reply to the Affirmative Defenses of Defendant, SEYON DUNBAR, and states as follows: *. This is an action to foreclose a mortgage on real property situated in Miami-Dade County, Florida *. Defendant’s Answer with Affirmative Defenses was filed on August *, *. *. Plaintiff hereby denies and avoids each and every allegation and affirmative defense set forth by Defendant and demands strict proof thereof. *. Defendant’s Affirmative Defenses are legally insufficient, unsupported by fact or evidence. Defendant’s affirmative defenses contain assertions, but do not supply specific facts, documents, or Affidavits to support these defenses. “[T]he requirement of certainty will be insisted upon in the pleading of a defense; and the certainty required is that the pleader must set Filing # * E-Filed */*/* *:*:* PM File#:*-* 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 meet it and prepare his evidence.” Zito v. Washington Federal Savings & Loan Ass’n of Miami Beach, * So. 2d *, * (Fla. 3rd DCA, *). RESPONSE TO FIRSTAFFIRMATIVE DEFENSE: *. Plaintiff denies the allegations of Defendant’s First Affirmative Defense that relates to re-establish a lost note, and demands strict proof thereof. As a further avoidance, Plaintiff states that it has the right to reestablish the lost note pursuant to Florida Statute § *.* Furthermore, the Complaint sufficiently pleads the cause of action and contains all of the necessary allegations required to re-establish the lost note pursuant to Florida Statute § *.*. The loss or destruction of a negotiable instrument does not extinguish the rights, duties and obligations of the parties. Clay County v. Toney, * So. 2d * (Fla. *). Further, Where a note secured by a mortgage is transferred without any formal assignment of the mortgage, the mortgage in equity passes as an incident to the debt. Johns v. Gillian, * So. * (Fla. *). To foreclose upon a promissory note, the plaintiff must be the "holder" in order to be the real party in interest. Troupe v. Redner, * So2d * (Fla. 2d DCA *), citing Withers v. Sandlin, * Fla. *, * So. * (*); Laing v. Gainey Builders, Inc., * So. 2d * (Fla. 1st DCA *). The "holder", with respect to a negotiable instrument, means the person in possession, if the instrument is payable to bearer. § *.*(*), Fla. Stat. (*). "Bearer" means the person in possession of an instrument, document of title, or certificated security payable to bearer or indorsed in blank. § *.*(*), Fla. Stat. (*). See Riggs v. Aurora Loan Services, LLC, * So. 3d * (Fla. 4th DCA *). “No doctrine is better established than that possession of a note payable to bearer by an agent or trustee is sufficient to sustain an action at law in his own name ... If a note is endorsed in blank, the court never inquires into the right of the plaintiff, whether he sues in his own right or as trustee. File#:*-* Any person in possession of the note may sue, and may in court, if necessary, fill up the blank and make it payable to himself.” Gregory v. McNealy * Fla * (Fla *). CONCLUSION: *. Based on the foregoing, Plaintiff requests any and all Affirmative Defenses be deemed without a legal or factual basis to overcome Summary Judgment, at or prior to the hearing on the Motion for Final Summary Judgment in this matter.