“FeganScott is a class-action law firm fighting for victims’ rights with integrity, passion and excellence.” So says FeganScott’s LinkedIn page, which also states that “FeganScott is a national class-action law firm dedicated to helping victims of sexual abuse, discrimination, consumer fraud, antitrust violations, and more. FeganScott is also focused on community-driven legal needs. Legal industry veterans passionate about justice, integrity and excellence lead the firm, and together they have recovered more than $1 billion for their clients.” As longer term and detail minded MHProNews may recall the report linked below provided illustrations and pleadings by FeganScott in the case against Equity LifeStyle Properties owned Heritage Plantation, located in Vero Beach, Florida. Heritage Plantation is an “age qualified 55 plus community surrounded by scenic citrus groves and horse ranches” states an online description of the manufactured home land-lease community.

 

 

ELS declined commenting on the suit. That failure to respond included ELS declining to provide their legal response (court pleadings) to the allegations brought by FeganScott on behalf of the ELS residents of Heritage Plantation. But MHProNews has since obtained those ELS pleadings.

The pleadings which follow by ELS’ attorneys in the Heritage Plantation case (CASE NO: 2:21-CV-14492-DMM) should be read in the context of the FeganScott pleadings linked here or as are found in the report with commentary above. NOTICE any spacing or other errors that may exist below should be cross-referenced with the PDF of ELS’ defense pleadings, linked here. Typos in the attached ELS defense pleadings download are in the original.

Perhaps the ideal ways to read these respective pleadings is to print them out and have them available side-by-side, or to use a split screen or two devices so each set of pleadings can readily be seen. That is because ELS admits to some facts and claims brought by FeganScott, but denies others.

Restated, to best understand what is being said in the ELS defense, having both sets of pleadings side-by-side is useful. In those ways, one can see the resident claims with illustrations as evidence which were brought by FeganScott – linked here – and the ELS legal defense – linked here – or shown below.

 

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA FT. PIERCE DIVISION

  

MICHAEL NOEL KATHLEEN  WIKSTEN, and CLAIRE LADOUCHER

on behalf of themselves and all others                          CASE NO: 2:21-CV-14492-DMM similarly situated,

 

Plaintiffs,

 

v.

 

MHC HERITAGE PLANTATION LLC,  and EQUITY LIFESTYLE PROPERTIES,  INC., f/k/a MANUFACTURED HOME  COMMUNITIES, INC.

 

Defendants.

 

_______________________________________

 

ANSWER AND AFFIRMATIVE DEFENSES

 

Pursuant to the Federal Rules of Civil Procedure Defendants MHC Heritage Plantation LLC and Equity Lifestyle Properties, Inc., f/k/a Manufactured Home Communities, Inc., files their

Answer and Affirmative Defenses as follows:

INTRODUCTION

1. Admitted that Florida Mobile Home Act (hereinafter referred to as “FMHA”) provides obligations both on the part of the homeowner and park owner otherwise Denied.

2. Denied.
3. Admit that Plaintiff’s are homeowners of the Park and the FMHA provides specified obligations; otherwise Denied.

4. Denied.
5. Denied.
6. Denied.
7. Without knowledge of Plaintiff’s intent and the Complaint speaks for itself; otherwise, Denied.

II. PARTIES

8. Admit.
9. Admit. 10 Admit.
11. Admit.
12. Admit.
13. Admit.
14. Admit.
15. Without knowledge.
16. Admit that MHC Heritage Plantation LLC (hereinafter referred to as “MHC Heritage”) is inactive; otherwise Denied.

17. Admit.
18. Admit.
19. Admit.
20. Denied.
21. Admit
22. Admit
23. Deny first sentence; accept last sentence for ease of reference.

III. JURISDICTION AND VENUE

24. Denied.
25. Admit.

IV. FACTUAL ALLEGATIONS

A. Background

24. 1.                       The Heritage Plantation Prospectus 

26. Admit.
27. Admit.

28. Admit that the Exhibit is a park prospectus, without knowledge when it was accepted.

29. Admit.
30. Admit that the Exhibit is a park prospectus, without knowledge when it was accepted.
31. Admit.
32. Admit the lot rental amount; without knowledge concerning the remaining allegations.

33. Admit.
34. Admit.
35. Admit.
36. Admit that MHC Heritage is the park owner; otherwise Denied.
37. Admit.
38. Admit.
39. Admit.

2. The Longstanding Flooding Problems

40. Without knowledge.
41. Denied.
42. Denied.
43. Denied.
44. Denied.

45. Denied.

46. Without knowledge. Deny “Ordinary” rainfall.

47. Without knowledge. Deny “Ordinary” rainfall.

48. Without knowledge. Deny “Ordinary” rainfall.

49. Without knowledge. Deny “Ordinary” rainfall.

50. Without knowledge. Deny “Ordinary” rainfall.

51. Without knowledge.

52. Without knowledge.

53. Without knowledge.

54. Without knowledge.

1. 3. Homeowners Have Complained to Defendants about the Flooding, but no Steps have been taken to remedy the problem. 

55. Without knowledge.
56. Without knowledge.
57. Without knowledge.       58.     Without knowledge.

59. The communication, if genuine, speaks for itself.

60. Without knowledge.

61. Denied.

62. Denied. Any genuine communications speaks for itself.

63. Denied that the storm water system is involved. The Code Enforcement action is admitted and related documents speak for themselves.

1. 4. Defendant MHC Heritage Plantation LLC was found in Violation of Municipal Code by Discharging Stormwater into the County’s Sewer System and has failed to Remediate the Violation, Incurring a fine over $132,000 that Mounts Daily.  

64. Admit.
65. Denied.
66. The Order speaks for itself.
67. The Code Enforcement documents speak for themselves.
68. Without knowledge.
69. Denied.
    5. The Residents Homes and Personal Property have been Damaged Because the Flooding, Moisture and Mold.   

70. Denied.
71. Without knowledge.
72. Without knowledge.
73. Without knowledge.
74. Without knowledge.
75. Denied
76. Without knowledge.
77. Without knowledge.
    6. The Residents Have Suffered Personal Injuries Due to Defendants’ Lack of Maintenance After Flooding. 

78. Denied.

79. Denied.

1. 7. The Defendants Also Fail to Maintain the Park’s Common Areas.

80.  Without knowledge.

81. Without knowledge.

82. Denied.

83. Without knowledge.

84. Without knowledge.

85. Without knowledge.

86. Without knowledge.

87. Without knowledge.

8. Dangerous Electrical Conditions Exist.

88. Denied. Hazardous electrical conditions exist; without knowledge concerning the remaining allegations.

89. Without knowledge. Any Notices speak for themselves.

90. Without knowledge. Any Notices speak for themselves.

1. 9. Defendants Retaliate Against Residents for Complaining about the Park’s Maintenance. 

91. Admit

92. Any allegation of retaliation is Denied. Defendants are without knowledge concerning the remaining allegations.

93. Denied.
94. Denied.

V.  CLASS ALLEGATIONS

95. Denied.
96. Denied.
97. Without knowledge.
98. Admit that there are 436 lots. The remaining allegations are Denied.
99. Denied.
100. Denied.
101. Denied.
102. Denied.
103. Denied.

VI.           CLAIMS FOR RELEIF COUNT I – BREACH OF CONTRACT

 

104. Defendants re-allege and re-incorporate responses to ¶’s 1-103 as if fully set forth herein.
105. Admit.
106. Denied.
107. Denied.
108. Denied.
109. Denied.
110. Denied.

COUNT II – BREACH OF COVENANT OF QUIET ENJOYMENT

111. Defendants re-allege and re-incorporate responses to ¶’s 1-103 as if fully set forth herein.
112. Denied.
113. Denied.
114. Denied.
115. Denied.

COUNT III – NEGLIGENCE

116. Defendants re-allege and re-incorporate responses to ¶’s 1-103 as if fully set forth herein.
117. These are allegations of law to which no response is required.
118. These are allegations of law to which no response is required.
119. These are allegations of law to which no response is required.
120. Denied.
121. Denied.
122. Denied.
123. Denied.
124. Denied.
125. Denied.

COUNT IV – PRIVATE NUISANCE

126. Defendants re-allege and re-incorporate responses to ¶’s 1-103 as if fully set forth herein.
127. Denied.
128. Denied.
129. Denied.
130. Denied.
131. Denied.
132. Denied.
133. Denied.

COUNT V – TRESSPAS

134. Defendants re-allege and re-incorporate responses to ¶’s 1-103 as if fully set forth herein.
135. Admit.
136. Denied.
137. Denied.
138. Denied.
139. Denied.
140. Denied.
141. Denied.

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

Statute of limitations. Each cause of action, claim, and item of damages, did not accrue within the time prescribed by law for them before this action was brought.

SECOND AFFIRMATIVE DEFENSE

Laches. Plaintiffs’ claims are barred by the doctrine of laches. Laches may be applied before the statute of limitations expires when strong equities appear. Plaintiffs make strong claims of flooding issues dating back to 2011.(See, DK 1 pg. 10). Yet plaintiffs failed to timely assert their claims when they had actual or constructive knowledge of the same, contributing to any alleged damages suffered.

 

THIRD AFFIRMATIVE DEFENSE

Facts common the Affirmative Defenses Three, Four,  And Five .

Heritage Plantation (the “Community”) is a rental mobile home park. The land/tenant relationship is governed by the Mobile Home Act, Chapter 723, Florida Statutes (the “FMHA”). The FMHA has extensive alternative dispute resolution procedures based on a collective bargaining process. The FMHA appoints the mobile home owners association as the statutory representative of all homeowners, whether or not they are members of the association. Heritage Village Homeowners Association, Inc. (the “Association”) is the mobile home owners association for the Community. In each year, 2015, 2018 and 2021, the Community owner and the Association negotiated over rents and rent increases. The Community owner compromised on its rental amounts, and, in return, the Association reached long term agreements (“LTAs”), each of which compromised on the rents for a three (3) year term (a total of 9 annual rental agreements for the three LTAs). Copies of the LTA’s are attached as Exhibits 1, 2 and 3. Each LTA contained a release covenant. For example, the current LTA which covers the current annual rental agreement and two other states:

 

8. Mutual Release: The Association, on its behalf and on behalf of each Homeowner as such Homeowner’s representative, hereby releases Owner, Equity Lifestyle Properties, Inc., Manufactured Home Communities, Inc., MHC Operating Limited Partnership, MHC Property Management, L.P. and their parents, affiliates, subsidiaries, officers, directors, agents, stockholders, members, attorneys, successors and assigns, and Owner hereby releases the Association, its officers, directors, agents and attorneys from any and all claims, actions or causes of action of any kind whatsoever (“Claims”), whether legal, equitable, administrative, or otherwise, including, but not limited to, Claims involving or relating to the subject matter of this Agreement, services, maintenance, or Owner’s compliance with or delivery of the Community’s prospectuses, rental agreements, as well as any other alleged violation of Chapter 723, Florida Statutes. With the exception of Claims involving the subject matter of this Agreement, this release shall address only Claims existing on the Effective Date.  This release shall not apply to any Homeowner’s failure to pay rent or a rules violation.

Each LTA also contained a covenant for the Parties (the Association and the Negotiating Committee) to punctually notify if the other “the other Owner in violation of this Agreement, the prospectus or rental agreement governing if any Homeowner’s tenancy, or Chapter 723, Florida Statutes” Parties must give the other notice and an opportunity to cure. The required notice was not given. All homeowners including plaintiffs paid the negotiated rents for the period of their occupancy, ratifying the LTAs. See, Nagymihaly v. Zipes, 353 So. 2d 943, (Fla. 3^rd DCA 1978) holding that a court may find as a matter of law that one who accepts the benefits of a settlement or compromise agreement, ratifies the settlement even if it was not authorized by him.

 

FOURTH AFFIRMATIVE DEFENSE

 

Estoppel. The Association agreed that all matters existing or predating the execution of the LTA were waived; the park owner and operator relied upon such representations and offered a compromise in rents; the plaintiffs as homeowners represented by the Association accepted and paid the reduced rents but have attempted to change their position and now assert claims waived by the LTA. They are estopped to bring their claims.

 

FIFTH AFFIRMATIVE DEFENSE

 

Waiver. At the time the LTA was executed, the plaintiffs have alleged that they had a right, claim or benefit which may be waived; plaintiffs had actual or constructive knowledge of the right; the homeowners (including plaintiffs) were represented by the Association in negotiating rents for the Community; in return for a compromise on the rents the Association of its behalf and on behalf of all homeowners (including plaintiffs) waived all past claims.

SIXTH AFFIRMATIVE DEFENSE

 

Compromise and Settlement. The LTAs are valid, binding contracts made by a statutorily authorized representative of the homeowners, including plaintiffs. Plaintiffs accepted the benefits if the LTAs and ratified the same. The mutual general release provisions apply and bar plaintiffs’ claims.

SEVENTH AFFIRMATIVE DEFENSE

 

Limitations On Duty . The FMHA is preemptive and establishes Defendants’ duties under the landlord/tenant relationship. See, Section 723.004, Florida Statutes. Defendants’ responsibilies for the storm water drainage system are stated in Section 723.022(4), Florida Statutes. Defendants are obligated to “[M]aintain utility connections and systems for which the park owner is responsible in a proper operating condition.” Defendants have no duty to prevent flooding caused by hurricanes or tropical events. Defendants’ responsibilities are to maintain the storm drainage system in a proper operating condition as originally designed and constructed. Periodic flooding is inevitable. The limited duty of a park owner is to assure that the drainage system operates properly to dissipate the flood waters. No park owner has a duty to prevent flooding from Hurricane Irma (as photographs in complaint paragraph 47 depict, or from a gale that produced

8.3 inches of rain in a day, and 21.93 inches for the month as the photographs in paragraph 46  show.).

 

EIGHTH AFFIRMATIVE DEFENSE

Installation Codes. The installation codes referred to in paragraph 118 of the complaint did not apply when plaintiffs’ homes were installed.

Respectfully Submitted,

LUTZ, BOBO & TELFAIR, P.A

_____________________________

J. Allen Bobo

Florida Bar No. 0356980

2 North Tamiami Trail, Suite 500

Sarasota, FL  34236-5575

T: (941) 951-1800

F: (941) 366-1603

E: jabobo@lutzbobo.com ahodgins@lutzbobo.com

Co-Counsel for Defendants

And

/s/ Mahlon H. Barlow___ Mahlon Barlow

Florida Bar No. 871117 mbarlow@sbwlegal.com mhbassistant@sbwlegal.com Nicholas R. Consalvo nconsalvo@sbwhlegal.com ddevlin@sbwlegal.com

SIVYER BARLOW & WATSON, P.A.

Truist Place

401 E. Jackson Street, Suite 2225

Tampa, FL 33602

Main: (813) 221-4242

Fax: (813) 227-8598

Co-Counsel for Defendants

Dated: February 1, 2022

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served upon Robert C. Gilbert, Esq.,

Daniel E. Tropin, Esq., Kopelowitz, Ostrow Ferguson, Weiselberg & Gilbert, 2800 Ponce de Leon Blvd, Suite 1100, Coral Gables, Florida 33134 gilbert@kolawyers.com, tropin@kolawyers.com, Elizabeth A. Fegan, Esq., Fegan Scott LLC, 150 S. Waker Drive, 2th Floor, Chicago, IL 60606 beth@feganscott.com, Lynn A. Ellenberger, Esq., Fegan Scott LLC, 500 Grant Street, Suite 2900, Pittsburgh, PA 15219 lynn@feganscott.com via the Southern District Court E-portal on this 1^st day of February, 2022.

________________________

J. Allen Bobo

##

For the defense exhibits, see the ELS defense pleadings, linked here.

 

Additional Information, MHProNews Commentary in Brief

For the layperson with limited legal expertise, it is useful to understand some of the terminology used in the ELS defense. For example, and “affirmative defense” is defined as follows by the Cornell University Legal Information Institute (LII) website.

Affirmative Defense
Definition

This is a defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal liability or civil liability, even if it is proven that the defendant committed the alleged acts.

 

Oxford Languages defines “estoppel” as the principle which precludes a person from asserting something contrary to what is implied by a previous action or statement of that person or by a previous pertinent judicial determination. “the case had been one of estoppel”

Cornell Law states that estoppel is: “A bar that prevents one from asserting a claim or right that contradicts what one has said or done before, or what has been legally established as true. Estoppel may be used as a bar to the relitigation of issues or as an affirmative defense.”

Laches, states Cornell Law, is “A doctrine in equity that those who delay too long in asserting an equitable right will not be entitled to bring an action.”

There are counters to such defense claims. For instance, in the ELS defense assertion of laches, the following legal principle might be applied: ”

• “The precise time that may elapse between the act complained of as wrongful and the bringing of suit to prevent or correct the wrong does not, in itself, determine the question of laches. What constitutes unreasonable delay is a question of fact dependent largely upon the particular circumstances. No rigid rule has ever been laid down. Stewart v. Johnston, 30 Wn.2d 925, 935-36, 195 P.2d 119 (1948).” – Pivotal Law Group.

What is clear at this time is that ELS – no surprise – intends to mount a rigorous defense to the residents’ claims brought by FeganScott.  That is the ELS way in legal matters.

But a seasoned law firm, such as FeganScott, would presumably be prepared to assert the counters to the ELS defense pleadings.

Not necessarily related, but of possible interest to manufactured housing professionals are the following.

• ELS has held a board position on the primary Manufactured Housing Institute (MHI) board for years.

• ELS, along with other MHI members in the list above, have been involved in controversies and suits that would appear to put them in conflict with the MHI code of ethical conduct. The MHI code of ethical conduct is linked here. It should be noted that some Manufactured Housing Executives Committee (MHEC) members have said to MHProNews that there are no known examples of MHI actually enforcing this so-called code of conduct, ever.

‘Breaking the Law’-State Affiliate of Manufactured Housing Institute Accuses Community Operator-‘They Take Advantage of Individuals in Communities, That Hurts Our Industry; Facts & Analysis

• An ELS insider has recently ripped the organization for practices that if true would put them in violation of various laws, not to mention their own code of ethical conduct.

Since Loss of Stinebert at Manufactured Housing Institute (MHI) ‘Empowered F-cking Greedy, Selfish Leaders of Companies to Make MHI a Tool for Themselves’-plus MHVille Markets Update

• A partial list of controversies worth mentioning that involve higher profile MHI members and or members of MHI affiliates are linked below.

The Consumer Financial Protection Bureau (CFPB) recently announced a probe involving manufactured home communities and other possible MHI member involved business arenas.

JDSupra-CFPB Announces Inquiry Manufactured Home Communities, Private Equity, Consolidation Issues, PLUS UDAAP Updates-Will 21st, VMF, ELS, Rolfe and Reynolds, MHI/NCC Strategies Prove Wrong?

 

As longtime MHProNews readers know, ELS lost a failure to maintain suit in in a jury trial that occurred in 2014.

MHProNews and/or MHLivingNews will plan to follow developments in this Heritage Plantation case. It is worth mentioning that FeganScott has said they are actively seeking evidence that ELS may be involved in similar failure to maintain issues at some of their other locations. ##

Burying Lead? Manufactured Home Community (MHC) Research Reveals MHC Owners Losing Money While Roaring Biden-Era Inflation, Predatory Operators Pressure Residents; plus MHVille Markets

###

Notice. This report fulfills our pledge Sunday 3.27.2022 to provide a report on a major MHI brand on Monday 3.28.2022. To stay up-to-date on what is occurring behind the scenes that pro-MHI trade media and mouthpiece bloggers routinely fail to report, it only takes a few seconds and sign up for our industry leading emailed news updates, further below or linked here. Input your email, press enter and confirm in your inbox. Done!

Again, our thanks to you, our sources, and sponsors and God for making and keeping us the runaway number one source for authentic “News through the lens of manufactured homes and factory-built housing” © where “We Provide, You Decide.” © ## (Affordable housing, manufactured homes, reports, fact-checks, analysis, and commentary. Third-party images or content are provided under fair use guidelines for media.) (See Related Reports, further below. Text/image boxes often are hot-linked to other reports that can be access by clicking on them.)

By L.A. “Tony” Kovach – for MHProNews.com.

Tony earned a journalism scholarship and earned numerous awards in history and in manufactured housing.

For example, he earned the prestigious Lottinville Award in history from the University of Oklahoma, where he studied history and business management. He’s a managing member and co-founder of LifeStyle Factory Homes, LLC, the parent company to MHProNews, and MHLivingNews.com.

This article reflects the LLC’s and/or the writer’s position, and may or may not reflect the views of sponsors or supporters.

http://latonykovach.com

Connect on LinkedIn: http://www.linkedin.com/in/latonykovach

 

Related References:

The text/image boxes below are linked to other reports, which can be accessed by clicking on them.

 

https://www.manufacturedhomepronews.com/enforce-the-law-hud-office-of-general-counsel-they-would-not-enforce-enhanced-preemption-provision-of-manufactured-housing-improvement-act-per-tip-longtime-hud-insider-plus-sunday/