IN THE CmCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR LEE COUNTY, FLORIDA

CIVIL ACTION

US BANK NA TIONAL ASSOCIATION, AS TRUSTEE

FOR GSMPS 2004-4,
Plaintiff,
CASE NO.: 36-2008-CA-055974
VS. DMSION:G

LARRY R. BRADSHAW, et ai,

Defendant( s),
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MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTION FOR EVIDENTIARY
HEARING

Plaintiff, US BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR GSMPS 2004-4, by and through

its undersigned attorney, flies this it Memorandum of Law in Opposition to Defendant's Motion for Evidentiary

Hearing 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 by

the 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 under

the theories of res judicata and/or collateral estoppel.

5. The Defendant argues in his Motion that because the Plaintiff has previously brought suit against

the Defendant in two prior cases, the issues raised in the current action are therefore barred by res judicata and/or

collateral estoppel.

FILE_NUMBER: F08086375

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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 reinstated

his 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-011562

was 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 equitable

remedy and there may be some tension between a court's authority to adjudicate the equities and the legal doctrine

of res judicata. The ends of justice require that the doctrine of res judicata not be applied so strictly so as to prevent

mortgagees from being able to challenge multiple defaults on a mortgage. Singleton v. Greymar Associates, 882

So.2d 1004 (2004).

9. In any event, the issue of res judicata is an affmnative defense, and affmnative defenses cannot be

raised 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 Evidentiary

hearing 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 this

2.3 day of September, 2009, to all parties on the attached service list.