Chapter 8-1 Statutory Claims and Defenses

8-1 Statutory Claims and Defenses

Florida state courts routinely entertain federal and state statutory claims as counterclaims or affirmative defenses in state foreclosure actions.1 Some provisions of these statutes provide for potential affirmative defenses to foreclosure, but they are few and far between. An affirmative defense is a defense which admits the cause of action, but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter negating or limiting liability.2 Hence, a statutory defense typically must admit the foreclosure plaintiff otherwise has a right to a foreclosure judgment but asserts that even so, a particular statute forbids the plaintiff's foreclosure claim. More often than not these statutory provisions are more effectively asserted as counterclaims.3



[1] See Alejandre v. Deutsche Bank Trust Co. Amer, 44 So. 3d 1288, 1289 (Fla. 4th DCA 2010); Dailey v. Leshin, 792 So. 2d 527 (Fla. 4th DCA 2001); Katline Realty Corp. v. Avedon, 183 So. 3d 415, 417 (Fla. 3d DCA 2014); Vidal v. Liquidation Props., 104 So. 3d 1274, 1278 (Fla. 4th DCA 2013).

[2] St. Paul Mercury Ins. Co. v. Coucher, 837 So. 2d 483 (Fla. 5th DCA 2002). See Wiggins v. Portmay Corp., 430 So. 2d 541, 542 (Fla. 1st DCA 1983) ("Affirmative defenses do not simply deny the facts of the opposing party's claim. They raise some new matter which defeats an otherwise apparently valid claim.").

[3] It is beyond the scope of this chapter to discuss whether borrowers must assert certain statutory counterclaims in their foreclosure suits or risk waiving them pursuant to res judicata and the compulsory counterclaim rule. See Iannucci v. Bank of Am., NA, No. 2:14-cv-106-FtM-38DNF, 2014 U.S. Dist. LEXIS 74699, 2014 WL 2462978, at *3 (M.D. Fla. June 2, 2014) (noting the court's inclination to agree, although not deciding, that a TILA claim was a compulsory counterclaim to the state...

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