2. Green Tree is without knowledge of the allegations contained in Paragraph 2 of

Transcription

1 Filing # Electronically Filed 09/24/ :01:24 PM IN THE COUNTY COURT OF THE 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 2014CA AH FELTON JACK SMITH, JR. Plaintiff, vs. GREEN TREE SERVICING LLC, a foreign corporation, Defendant. GREEN TREE SERVICING, LLC'S ANSWER AND AFFIRMATIVE DEFENSES Green Tree Servicing LLC ("Green Tree" ) hereby serves its Answer and Affirmative Defenses to the Complaint filed by Felton Jack Smith, Jr. ("Smith" ), and states: GENERAL ALLEGATIONS 1. Green Tree admits that Smith purports to seek damages in excess of $ 15,000.00, as alleged in Paragraph 1 of the Complaint, but denies that Smith is entitled to any damages. 2. Green Tree is without knowledge of the allegations contained in Paragraph 2 of the Complaint; therefore, denied. 3. Green Tree admits the allegations set forth in Paragraph 3 of the Complaint. 4. Green Tree states that the mortgage attached to the Complaint as Exhibit A speaks for itself. Green Tree is without knowledge of the remaining allegations set forth in Paragraph 4; therefore, denied.

2 5. Green Tree states that the Official Records Book of Palm Beach County speaks for itself. Green Tree is without knowledge of the remaining allegations set forth in Paragraph 5; therefore, denied. 6. Green Tree states that the Note speaks for itself. Green Tree is without knowledge of the remaining allegations set forth in Paragraph 6; therefore, denied. 7. Green Tree is without knowledge of the allegations set forth in Paragraph 7; therefore, denied. 8. Green Tree is without knowledge of the allegations set forth in Paragraph 8; therefore, denied. 9. Green Tree states that the letter dated October 1, 2009, which is attached to the Complaint as Exhibit B, speaks for itself. Green Tree is without knowledge of the remaining allegations set forth in Paragraph 9; therefore, denied. 10. Green Tree states that the letter dated October 15, 2009, which is attached to the Complaint as Exhibit C, speaks for itself. Green Tree is without knowledge of the reaming allegations set forth in Paragraph 10; therefore, denied. 11. Green Tree states that the letter dated November 18, 2009, which is attached to the Complaint as Exhibit D speaks for itself. Green Tree denies the remaining allegations set forth in Paragraph 11 of the Complaint. 12. Green Tree states that the letter dated November 18, 2009, which is attached to the Complaint as Exhibit D speaks for itself. 13. Green Tree states that the letter dated November 18, 2009, which is attached to the Complaint as Exhibit D speaks for itself.

3 14. Green Tree states that the letter dated December 8, 2009, which is attached to the Complaint as Exhibit E speaks for itself. Green Tree is without knowledge as to the remaining allegations set forth in Paragraph 14 of the Complaint; therefore, denied. 15. Green Tree is without knowledge of the allegations set forth in Paragraph 15 of the Complaint; therefore, denied. 16. Green Tree states that the letter dated February 9, 2010, which is attached to the Complaint as Exhibit F speaks for itself. 17. Green Tree denies the allegations set forth in Paragraph 17 of the Complaint. 18. Green Tree states that the document attached to the Complaint as Exhibit G speaks for itself. Green Tree is without knowledge of the remaining allegations set forth in Paragraph 18 of the Complaint; therefore, denied. 19. Green Tree states that the assignment and the Official Records Book of Palm Beach County speak for themselves. 20. Green Tree states that the Lis Pendens and lawsuit are public record and speaks for themselves. Green Tree denies the remaining allegations set forth in Paragraph 20 of the Complaint. 21. Green Tree states that the July 22, 2010, letter attached to the Complaint as Exhibit 1 speaks for itself. 22. Green Tree denies the allegations set forth in Paragraph 22 of the Complaint. 23. Green Tree denies the allegations set forth in Paragraph 23 of the Complaint, 24. Green Tree denies the allegations set forth in Paragraph 24 of the Complaint, 25. Green Tree is without knowledge of the allegations set forth in Paragraph 25 of the Complaint; therefore, denied.

4 26. Green Tree denies the allegations set forth in Paragraph 26 of the Complaint. COUNT I: EOUITABLE ACCOUNTING 27. Green Tree restates and realleges the responses set forth in Paragraphs 1 through 26 as if fully set forth herein. 28. Green Tree admits that it has a valid contract with Smith by virtue of PNC's March 1, 2010 assignment of the note, as set forth in Paragraph 28 of the Complaint. 29. Green Tree denies the allegations set forth in Paragraph 29 of the Complaint, 30. Green Tree denies the allegations set forth in Paragraph 30 of the Complaint. 31. Green Tree is without knowledge of the allegations set forth in Paragraph 31 of the Complaint; therefore, denied. 32. Green Tree denies the allegations set forth in Paragraph 32 of the Complaint. Green Tree denies that Plaintiff is entitled to any of the relief requested in the WHEREFORE Clause immediately following Paragraph 32 of the Complaint. COUNT II: BREACH OF CONTRACT AND BREACH OF GOOD FAITH AND FAIR DEALING 33. Green Tree restates and realleges the responses set forth in Paragraphs 1 through 26 as if fully set forth herein. 34. Green Tree admits the allegations set forth in Paragraph 34 of the Complaint. 35. Green Tree admits the allegations set forth in Paragraph 35 of the Complaint. 36. The allegations contained in Paragraph 36 of the Complaint are statements of law and/or legal conclusions to which no response is required, 37. The allegations contained in Paragraph 37 of the Complaint are statements of law and/or legal conclusions to which no response is required.

5 38. The allegations contained in Paragraph 38 of the Complaint are statements of law and/or legal conclusions to which no response is required. 39. The allegations contained in Paragraph 39 of the Complaint are statements of law and/or legal conclusions to which no response is required. 40. Green Tree denies the allegations set forth in Paragraph 40 of the Complaint. 41. Green Tree denies the allegations set forth in Paragraph 41 of the Complaint. 42. Green Tree denies the allegations set forth in Paragraph 42 of the Complaint, including subparagraphs a-d. Green Tree denies that Plaintiff is entitled to any of the relief requested in the WHEREFORE Clause immediately following Paragraph 42 of the Complaint. COUNT III: VIOLATION OF THE FLORIDA CONSUMER COLLECTION PRACTICES ACT 43. Green Tree restates and realleges the responses set forth in Paragraphs 1 through 26 as if fully set forth herein. 44. Green Tree admits that Smith has brought a claim for damages and injunctive relief under the Florida Consumer Collection Practices Act ("FCCPA"), but denies that it has violated the FCCPA, as set forth in Paragraph 44 of the Complaint and further denies that Plaintiff is entitled to any of the relief he is requesting. 45. Green Tree is without knowledge regarding what debts Plaintiff is referring to in the allegations set forth in Paragraph 45 of the Complaint; therefore, denied. 46. Green Tree states that section (9), Florida Statutes, speaks for itself. 47. Green Tree states that the allegations set forth in Paragraph 47 of the Complaint are legal conclusions to which no response is required.

6 Green Tree states that the allegations set forth in Paragraph 48 of the Complaint are legal conclusions to which no response is required. 49. Green Tree states that the allegations set forth in Paragraph 49 of the Complaint are legal conclusions to which no response is required. 50. Green Tree states that the written communications it sent to Plaintiff speak for themselves. All remaining allegations set forth in Paragraph 50 of the Complaint are denied. 51. Green Tree denies the allegations set forth in Paragraph 51 of the Complaint. 52. Green Tree states that section (9), Florida Statutes, speaks for itself. Green Tree denies the remainder of the allegations set forth in Paragraph 52 of the Complaint. 53. Green Tree is without knowledge of the allegations set forth in Paragraph 53 of the Complaint; therefore, denied. 54. Green Tree denies the allegations set forth in Paragraph 54 of the Complaint, Green Tree denies that Plaintiff is entitled to any of the relief requested in the WHEREFORE Clause immediately following Paragraph 54 of the Complaint. COUNT IV: NEGLIGENT MISREPRESENTATION 55. Green Tree restates and realleges the responses set forth in Paragraphs 1 through 26 as if fully set forth herein. 56. Green Tree denies the allegations set forth in Paragraph 56 of the Complaint. 57. Green Tree denies the allegations set forth in Paragraph 57 of the Complaint. 58. Green Tree denies the allegations set forth in Paragraph 58 of the Complaint. 59. Green Tree denies the allegations set forth in Paragraph 59 of the Complaint. Green Tree denies that Plaintiff is entitled to any of the relief requsted in the WHEREFORE Clause immediately following Paragraph 59 of the Complaint.

7 COUNT V: BREACH OF FIDUCIARY DUTY 60. Green Tree restates and realleges the responses set forth in Paragraphs 1 through 26 as if fully set forth herein. 61. Green Tree admits the allegations set forth in Paragraph 61 of the Complaint. 62. Green Tree denies the allegations set forth in Paragraph 62 of the Complaint. 63. Green Tree denies the allegations set forth in Paragraph 63 of the Complaint. 64. Green Tree denies the allegations set forth in Paragraph 64 of the Complaint, including subparagraphs a-d. Green Tree denies that Plaintiff is entitled to any of the relief requested in the WHEREFORE Clause immediately following Paragraph 64 of the Complaint, All allegations contained in the Complaint that are not expressly admitted herein are denied. AFFIRMATIVE DEFENSES Without regard for which party bears the burden of proof and without waiving its right to require Plaintiff to prove each and every element of each claim asserted in the Complaint, Green Tree assets the following affirmative defenses. FIRST AFFIRMATIVE DEFENSE Smith is not entitled to an equitable accounting because the transactions or accounts at issue are not so complicated so as require to an equitable accounting. SECOND AFFIRMATIVE DEFENSE Smith is not entitled to an equitable accounting because an adequate remedy at law exists. This is evidenced by the fact that Smith has brought a breach of contract claim against Green

8 THIRD AFFIRMATIVE DEFENSE Green Tree has not breached the implied covenant of good faith and fair dealing because it has not breached the underlying contract and has not purposefully taken any actions that would unfairly prevent Smith from enjoying his rights or benefits under the parties'ontract or otherwise acted in bad faith. FOURTH AFFIRMATIVE DEFENSE To the extent that there was a violation of the FCCPA, which Green Tree denies, such violation was not intentional and, instead, resulted from a bona fide and inadvertent error, notwithstanding the maintenance of procedures reasonably adapted to avoid any such error, and as such, Green Tree is relieved of liability. FIFTH AFFIRMATIVE DEFENSE Green Tree's communications with Smith do not qualify as debt collection activity under the FCCPA. SIXTH AFFIRMATIVE DEFENSE To the extent that there was a violation of the FCCPA and Smith is entitled to any damages, which Green Tree denies, such damages are limited to the statutory damages provided for in section (2), Florida Statutes. SEVENTH AFFIRMATIVE DEFENSE Any amounts recovered herein by Smith, the entitlement to which Green Tree denies, should be set off by the amounts due to Green Tree by Smith. EIGHTH AFFIRMATIVE DEFENSE To the extent that Green Tree represented to Smith that there was no insurance on his property and that Green Tree therefore force-placed insurance on the property, which Green Tree

9 denies, Smith's alleged reliance on this representation was not justifiable, since, as he alleges in Paragraphs 14, 15, and 22 of the Complaint, he knew that he had insurance on the property at all times material to the Complaint. Moreover, even if Smith was unaware that he had insurance on the property, an investigation would have revealed the existence of any insurance. For this reason, Smith's negligent misrepresentation claim fails. NINTH AFFIRMATIVE DEFENSE To the extent that Green Tree made a negligent misrepresentation to Smith, which Green Tree denies, Smith's reliance on this representation was negligent, since, as he alleges in Paragraphs 14, 15, and 22 of the Complaint, he knew that he had insurance on the property at all times material to the Complaint. Therefore, any award to which Smith may be entitled should be reduced accordingly pursuant to the doctrine of comparative negligence. TENTH AFFIRMATIVE DEFENSE Green Tree has not committed a breach of fiduciary duty because no fiduciary duty exists between Green Tree and Smith. ELEVENTH AFFIRMATIVE DEFENSE The economic loss rule bars Smith's breach of fiduciary duty claim because that claim is based upon and inextricably intertwined with Smith's breach of contract claim against Green Tree. TWELFTH AFFIRMATIVE DEFENSE Smith's claims are barred in whole or in part to the extent he has failed to mitigate any damages he has allegedly suffered.

10 THIRTEENTH AFFIRAMTIVE DEFENSE Smith's claims are barred by the applicable statute of limitations. DATED this 24th day of September, SHUTTS k BOWEN LLP Counsel for Defendant Green Tree Servicing LLP 200 East Broward Boulevard, Suite 2100 Fort Lauderdale, Florida Telephone: (954) Facsimile: (954) By: /s/ RACHEL H. LEBLANC Rachel H. LeBlanc Florida Bar No rleblanc@shutts. corn CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via upon Geoff Stahl, Esq. (gstah10a,lippiolaw.corn and servicelippiolaw.corn), Liggio Benrubi, P.A., 1615 Forum Place, Suite 3B, West Palm Beach, FL 33401, this 24th day of September, By: Is/RACHEL H LEBLANC 10