BARBARA ZITO, APPELLANT,
v.
WASHINGTON FEDERAL SAVINGS & LOAN ASSOCIATION OF MIAMI BEACH, A UNITED STATES CORPORATION, APPELLEE
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In this interlocutory appeal, the Third District Court of Appeal reviewed an order requiring defendants to amend their affirmative defense in a mortgage foreclosure action. The court affirmed the trial judge's determination that the defendants' affirmative defense lacked sufficient definiteness to allow the plaintiff to prepare a response.
The court held that the affirmative defense failed to meet the requisite degree of certainty required by Florida law. The portion claiming the note was not in default constituted a mere denial rather than an affirmative defense, and the claim that plaintiff had ample funds of defendants to apply was too vague to reasonably inform the adversary of what would be proved.
[1] A statement that a note was not in default, when asserted as a defense, constitutes a denial rather than an affirmative defense.
[2] A pleading of an affirmative defense must set forth facts with sufficient certainty to reasonably inform the adversary of the proof to be offered and allow for preparatio…
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Join FLexlaw to unlock all legal intelligence“the requirement of certainty will be insisted upon in the pleading of a defense; 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 to provide the latter with a fair opportunity to meet it and prepare his evidence”
Establishes the standard for sufficiency of affirmative defense pleadings under Florida law
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Join FLexlaw to unlock all legal intelligenceWashington Federal Savings and Loan Association filed a complaint to foreclose a mortgage against Joseph and Barbara Zito. Defendants answered and ass…
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PER CURIAM.
This is an interlocutory appeal to review an order striking defendants’ affirmative defense with leave to amend.
Plaintiff, Washington Federal Savings and Loan Association of Miami Beach, appellee, filed a complaint to foreclose mortgage and named as defendants, Joseph and Barbara Zito. Defendants answered and alleged in their answer the following affirmative defense:
“AFFIRMATIVE DEFENSE
“1) The Plaintiff, having advanced the note, the Defendant affirmatively states that the note was not in default and the Plaintiff had ample funds of the Defendant’s to apply to the note.”
* * * * * *
Subsequently, plaintiff filed a motion for summary judgment and after a hearing, the trial judge entered the appealed order finding that the motion of plaintiff was premature in that defendants’ affirmative defense, to which plaintiff had not responded, was not sufficiently definite in its terms for the plaintiff to file a response. Thereupon, the judge ordered that (1) the defendants shall have until February 24, 1975 in which to file an amended affirmative defense; (2) plaintiff shall have until March 3, 1975 to file a response thereto; and (3) the hearing on plaintiff’s motion for summary judgment be deferred pending the filing of the above pleadings.
Appellants argue that the court erred in determining that the defendants’ affirmative defense was not sufficiently definite in its terms.
First, that portion of the affirmative defense alleging that the note was not in default does not constitute an affirmative defense, but is merely a denial. See 25 Fla.Jur. Pleadings § 24 (1959) and cases cited therein.
We then considered the affirmative defense, as alleged by the appellants, that “the Plaintiff had ample funds of the Defendants to apply to the note.”
As in plaintiff’s statement of claim, the requirement of certainty will be insisted upon in the pleading of a defense; 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 to provide the latter with a fair opportunity to meet it and prepare his evidence. See Citizens National Bank of Orlando v. Youngblood, Fla.App.1974, 296 So. 2d 92; Walker v. Walker, Fla.App.1971, 254 So. 2d 832; 25 Fla.Jur. Pleadings § 23 (1959) and 61 Am.Jur.2d Pleading § 136 (1972).
The affirmative defense pled by the defendant-appellants fails to meet the requisite degree of certainty and, therefore, we conclude that the trial judge did not err in entering the appealed order. Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
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S. Fla. Coastal Elec., Inc. v. Treasures ON the BAY II Condo Ass'n, Inc., 89 So. 3d 264 (Fla. 3d DCA 2012)…into the proceedings below, through a “vaguely pleaded affirmative defense.” Attached as Appendix 2 is a copy of all of Treasures' affirmative defenses. An affirmative defense must be pled with specificity. See Zito v. Wash. Fed. Sav. & Loan Ass’n, 318 So. 2d 175 (Fla. 3d DCA 1975); Walker v. Walker, 254 So. 2d 832 (Fla. 1st DCA 1971). At a summary judgment hearing, a court may only consider those issues raised by the pleadings. See Hemisphere Nat’l Bank v. Goudie, 504 So. 2d 785 (Fla. 3d DCA 1987); Reina v.…1 / 2
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Bliss v. Carmona, 418 So. 2d 1017 (Fla. 3d DCA 1982)…aised therein remain to be disposed of. First, most of the allegations in the response were pure conclusions of law. Certainty is required when pleading defenses and claims alike, Zito v. Washington Federal Savings & Loan Association of Miami Beach, 318 So. 2d 175 (Fla. 3d DCA 1975), cert. denied, 330 So. 2d 23 (Fla. 1976), and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient. Chris Craft Industries, Inc. v. Van Valkenberg, 267 So. 2d 642 (Fla. 1972); Ellison v.…
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City OF Miami v. Fraternal Order OF Police, 351 So. 2d 84 (Fla. 3d DCA 1977)…After a review of the record, we find that the trial judge properly granted plaintiffs 10 days to amend their reply to the City’s affirmative defense1 and, thus, this appeal is premature. Cf. Zito v. Washington Fed. Sav. & L. Ass’n of Miami Beach, 318 So. 2d 175 (Fla. 3d DCA 1975). Further, the burden is upon the party moving for summary judgment to establish the nonexistence of a genuine issue of material fact and he (or she) is entitled to a judgment as a matter of law; he or she must prove this negative…
Authorities Cited
- Citizens Nat'l Bank OF Orlando v. Youngblood, 296 So. 2d 92 (Fla. 4th DCA 1974)
- Walker v. Walker, 254 So. 2d 832 (Fla. 1st DCA 1971)