8/8/2019 Memorandum of Law in Opposition to Defendant's Motion
for Evidentary Hearing - Writ of Mandamus Exhibit P-15
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IN THE CmCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUITIN AND FOR
LEE COUNTY, FLORIDA
CIVIL ACTIONUS BANK NATIONAL ASSOCIATION, AS TRUSTEEFOR GSMPS
2004-4,
Plaintiff,VS. CASE NO.: 36-2008-CA-055974DMSION:GLARRY R.
BRADSHAW, et ai,
Defendant( s),- - - - - - - - - - - - - - - - - - - - - - ~
/
MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTION FOR
EVIDENTIARYHEARING
Plaintiff, US BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR GSMPS
2004-4, by and throughits undersigned attorney, flies this it
Memorandum of Law in Opposition to Defendant's Motion for
EvidentiaryHearing and in support thereof states as follows:
1. This is a mortgage foreclosure action.2. On or about
September 4,2009, the Defendant, LARRY R. BRADSHAW, filed
Defendant's
Motion for Evidentiary Hearing on the Issue of Res
Judicata/Collateral Estoppel.3. The Motion for Evidentiary Hearing
on the Issue of Res Judicata/Collateral Estoppel is brought by
the Defendant pursuant to Rule 1.420(a) Fla. R. Civ. Pro. which
provides for voluntarily dismissal of an action bythe party
bringing that action. Clearly the defendant is not entitled to an
evidentiary hearing pursuant to that Rule.
4. Defendant further asserts in his Motion that dismissal of the
Plaintiff's case is appropriate underthe theories of res judicata
and/or collateral estoppel.
5. The Defendant argues in his Motion that because the Plaintiff
has previously brought suit againstthe Defendant in two prior
cases, the issues raised in the current action are therefore barred
by res judicata and/orcollateral estoppel.
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8/8/2019 Memorandum of Law in Opposition to Defendant's Motion
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6. The Complaint of Mortgage Foreclosure filed in the first case
- case number 06-CA-004271 -alleged a default date of April 6,
2006. The Plaintiff voluntarily dismissed that case after the
Defendant reinstatedhis mortgage.
7. The Complaint of Mortgage Foreclosure filed in the second
case - case number 07-CA-Ol1562-alleged a default date of March
1,2007 as does the current case. The action brought in case number
07-CA-011562was voluntarily dismissed because it was brought in the
name of the wrong Plaintiff.
8. As our Supreme Court has noted, "[w]e must also remember that
foreclosure is an equitableremedy and there may be some tension
between a court's authority to adjudicate the equities and the
legal doctrineof res judicata. The ends of justice require that the
doctrine of res judicata not be applied so strictly so as to
preventmortgagees from being able to challenge multiple defaults on
a mortgage. Singleton v. Greymar Associates, 882So.2d 1004
(2004).
9. In any event, the issue of res judicata is an affmnative
defense, and affmnative defenses cannot beraised in a motion to
dismiss unless the allegations of a prior pleading in the case
demonstrate their existence.(Citations omitted). City o{Clearwater
v. Us. Steel Corp., 469 So.2d 915 (2nd DCA 1985).
WHEREFORE, Plaintiff respectfully requests this Court enter an
Order denying Defendant an Evidentiaryhearing on the issues of res
judicata/collateral estoppel for the reasons stated herein.
I HEREBY CERTIFY that a true and correct copy of the foregoing
has been furnished by U.S. Mail this2 .3 day of September, 2009, to
all parties on the attached service list.
