The Florida Court of Appeals for the 4th District handed down yet another reversal on conditions precedent Tuesday in the case Haber v. Deutsche Bank National Trust Company:
Haber v. Deutsche Bank National Trust Company, No. 4D10-4458 (Fla. 4DCA 2012)
Given the recent discussion in John Lewis' thread "AFFIRMATIVE FORECLOSURE DEFENSES" relating to whether or not particular defenses are affirmative defenses, this case is still a horrible disappointment.
Mr. Roper showed the foreclosure defense community the way to successfully defend using conditions precedent in his exposition within the thread "The Conditions Precedent Affirmative Defense" a little over a year ago:
He then chronicled successful cases of defendants arguing conditions precedent within this and other threads here at the Forum. When he noted that many defendants, especially in Florida, were incorrectly characterizing conditions precedent as an affirmative defense, he made this further expository post:
A Defense, But Perhaps NOT an Affirmative Defense
He tried to be gentle with these idiots, suggesting that they review their law textbooks, their pleadings and their assumptions.
Still, a year later, the dimwits in the Florida foreclosure defense bar are making the wrong argument.
Shallow parrots, such as Ann, continue to litter the Forum and other sites with suggested pleadings that incorrectly characterize conditions precedent as an affirmative defense.
The defendants make the incorrect argument in their answer, present the argument incorrectly in opposing summary judgment and then make the incorrect argument in their appellate brief.
Even so, conditions precedent can form the basis of a partial victory.
When a defendant makes even a REAL affirmative defense, a plaintiff seeking summary judgment must show that the affirmative defense fails as a matter of law.
For this reason, a defense of conditions precedent supported by an affidavit or other admissible defensive evidence controverting satisfaction of conditions precedent would often be successful in precluding summary judgment no matter who bore the burden of proof.
The issue of burden of proof and whether or not the burden of proving conditions precedent is borne by the plaintiff or the defendant is rarely called into issue in a motion for traditional summary judgment by the plaintiff.
If the burden doesn't really matter, then WHY is important to get the argument correct in the answer, opposition and other filings?
Well, there are two answers to this. First, if a defendant can prevent summary judgment, the matter will often go to trial. There, the burden of proof can be particularly critical.
Second, in cases, such as the Haber case, where the plaintiff fails to bring forth any proof as to satisfaction of conditions precedent, it is readily apparent to an astute litigator that the defendant has made a very grave strategic error in failing to make a cross-motion for defensive summary judgment.
In Haber, it seems that the defendant DENIED receiving the required notices. The plaintiff seems to have failed to engage this point AT ALL, which is actually NOT unusual.
The disputed fact issue as to satisfaction of conditions precedent is enough to win a reversal of the plaintiff's summary judgment. But had the defendant also filed a cross-motion for defensive summary judgment, Haber could have obtained not only a reversal, but also a dismissal on the merits!
This would be difficult to accomplish if conditions precedent was actually an affirmative defense. It can be quite easy when the burden of proof is properly ascribed to the plaintiff, since proof of conditions precedent is actually an essential element of the plaintiff's cause of action!
Mediocre and inferior defense lawyers throughout Florida continue to get this argument WRONG. Mr. Roper put his exposition on hearsay out there in Autumn 2010 and augmented this with his exposition on conditions precedent a year ago. He laid these arguments out. He showed everybody the cases.
This effective defensive technique does NOT sell useless "securitization audit reports" or "forensic loan audits". It is simply a matter of good litigation strategy. Since the swindlers and scam artists cannot make any money off of Mr. Roper's effective defense strategies, THEY ATTACK MR. ROPER and IGNORE the EFFECTIVE STRATEGIES!