IN THE CIRCUIT COURT OF THE FOUR

TH
JUDICIAL CIRCUIT, IN AND FOR DUVAL
COUNTY, FLORIDA
CASE NO: 16-2008-CA-02102
DIVISION: CV-G
U.S. Bank, N.A., Plaintiff,
vs.
Arthur L. Campbell; Salulysa Campbell, et al.,
Defendants.
_____________________________________/
DEFENDANT SALULYSA CAMPBELL’S FIRST AMENDED ANSWER TO COMPLAINT, AFFIRMATIVE DEF
ENSES, COUNTERCLAIMS AND DEMAND FOR TRIAL BY JURY
COMES NOW the separate Defendant Salulysa Campbell and for her first am
ended answer to the plaintiffs’ complaint, affirmative defenses, counterclaims a
nd demand for trial by jury, states:
ANSWER
1. Defendant denies that this Plaintiff has stated a cause of action f
or foreclosure because on the date this lawsuit was filed the plaintiff was not
the true owner of the claim sued upon; is not the real party in interest and is
not shown to be authorized to bring this foreclosure action.
2. Admit
Deny that the subject note and mortgage was assigned to U.S. Bank, N.A.
Defendant affirmatively asserts that the promissory note attached to the Plainti
ffs’ Complaint directly and specifically incorporates federal regulations issued
by the Secretary of Housing and Urban Development which contractually limit the
plaintiff’s rights of acceleration, collection and foreclosure in the case of a
borrower’s default, to wit:
“If Borrower defaults by failing to pay in full any monthly payment, then Lender
may, except as limited by regulations of the Secretary in the case of payment
defaults, require immediate payment…This Note does not authorize acceleration wh
en not permitted by HUD regulations. As used in this Note, ‘Secretary’ means th
e Secretary of Housing and Urban Development…”
Defendant further denies that the subject note is a negotiable ins
trument or that the note is subject to being held in due course; denies that the
subject note was legally assigned to the Plaintiff; denies that the Plaintiff i
s the present owner of the subject mortgage or the promissory note; and denies t
hat the provisions of the Uniform Commercial Code apply to the subject loan tran
saction or the promissory note.
Defendant’s denial of the plaintiff’s claim that it owns the subj
ect mortgage or note is also based on the contents of the purported assignments
attached to the complaint which show that the exact same persons executed or wit
nessed the assignments on the exact same day with Jon. H. Cardell Assistant Vice
President purportedly assigning on behalf of and to both Mercantile Bank and C
arolina First Bank.
4. Admit that this separate defendant is the present owner of the subj
ect property and the only person in possession of the subject property. Deny th
at Arthur Campbell has any ownership or possessory interest in the property.
5. Deny. Separate Defendant made payments including a payment made on
October 10, 2007 which payments exceeded the monthly required payment. These p
ayments totaled $919.56 while the monthly payment was at or about $646.30. Pla
intiff recorded this payment on or about October 17, 2007 per page 2 of Custome
r Account Activity Statement.
6. Deny the amount of the debt as alleged. Defendant disputes the am
ount and characterization of this debt, affirmatively claims that many unauthor
ized, illegal, and predatory charges and fees have been added to the claimed ba
lance due under the subject mortgage and note and by reason thereof, and pursuan
t to the Federal Fair Debt Collection Practices Act Defendant hereby demands wr
itten and itemized verification of said debt from the Plaintiff including a comp
lete written and itemized transaction history and accounting of all charges, fe
es and payments.
7. Deny.
8. Deny.
9. Deny as this is not an allegation of fact.
10. Deny.
11. Deny.
12. Deny.
Deny.
Deny.
Deny.
AFFIRMATIVE DEFENSES
1. FAILURE TO STATE CAUSE OF ACTION; PLAINTIFF DOES NOT HAVE STANDING BECAUSE P
LAINTIFF IS NOT REAL PARTY IN INTEREST: The exhibits attached to Plaintiffs’ Co
mplaint are inconsistent with Plaintiffs’ allegations as to ownership of the sub
ject promissory note and mortgage on the date this foreclosure action was commen
ced. Plaintiffs have failed to establish that plaintiffs are real parties in in
terest and have failed to state a cause of action.
a. The HUD insured promissory note that is the subject of this foreclosure act
ion is not a negotiable instrument and therefore is not subject to transfer by e
ndorsement because the note directly and specifically incorporates and directly
references and applies federal regulations issued by HUD that limit the Lender’s
rights of acceleration, collection and foreclosure in the case of a borro
wer’s default. The application, incorporation and reference to the HUD fe
deral regulations which set out specific default loan servicing and loss m
itigation requirements imposed on the lender renders the note nonnegotiabl
e under the Uniform Commercial Code.
b. The HUD insured promissory note has a boxed FHA case number and states, in
pertinent part, under the section on borrower’s failure to pay:
“If Borrower defaults by failing to pay in full any monthly payment, the
n Lender may, except as limited by regulations of the Secretary in the case of p
ayment defaults, require immediate payment…This Note does not authorize acceler
ation when not permitted by HUD regulations. As used in this Note, ‘Secretary’
means the Secretary of Housing and Urban Development…”
c. It is plain on the face of the HUD insured promissory note at issue in this
foreclosure that is attached to the plaintiffs’ Complaint that the note does no
t contain just an unconditional promise to pay. The resulting uncertainty pres
ented by the terms of the note that specifically apply, incorporate and referenc
e the HUD regulations defeat any argument that the note is a negotiable in
strument subject to transfer via endorsement.
d. Therefore, the Uniform Commercial Code, F.S.Chapter 673 does not apply to t
ransfer or enforce the promissory note at issue in this foreclosure action. Nage
l v. Cronebaugh, 782 So. 2d 436 (Fla. 5th DCA 2001), citing United Nat’l B
ank of Miami v. Airport Plaza Ltd. Partnership, 537 So. 2d 608,609 (Fla. 3
d DCA 1988); Thompson v. First Union National Bank, 643 So.2d 1179 (Fla. 5
th DCA 1994); See also, Bankers Trust v. 236 Beltway Investment, Inc., 865
F. Supp. 1186 (E.D. Va. 1994).
e. The HUD insured promissory note is conditional because it is subject to and
governed by the HUD default loan servicing and loss mitigation regulations. Th
e court cannot determine the obligations required of the person promising to pay
or the person requiring payment without reference to the HUD regulations.
As a result, the note is not an unconditional promise, is not a negotiab
le instrument and is not subject to transfer by endorsement. Fla. Stat. §
673.1041.
f. Under Section 3-106(a) of the Uniform Commercial Code “a promise or order
is [conditional if it] is subject to or governed by another record, or [the] ri
ghts or obligations with respect to the promise or order are stated in anot
her record. Fla. Stat. § 673.1061.
g. “To determine whether an instrument meets negotiable instrument definition o
f Uniform Commercial Code, only [the] instrument itself may be looked to, not ot
her documents, even when other documents are referred to in instrument.” Fi
rst State Bank at Gallup v. Clark, 570 P.2d 1144 (N.M. 1977); Amberboy v. S
ociete de Banque Privee, 831 S.W.2d 793, 794 (Tex. 1992); Walls v. Morris C
hevrolet, Inc., 515 P.2d 1405, 1407 (Okl. App. 1973).
h. “No instrument can be negotiable which (1) is subject to another agreement,
(2) refers to another agreement for the rights of the parties, or (3) incorporat
es another agreement.” Hawkland, Uniform Commercial Code Services § 3-105:2
. See also, Holly Hill Acres, Ltd. v. Charter Bank of Gainesville, 314 So.
2d 209, 210-11 (Fla.2nd DCA 1975) (holding that the incorporation of the t
erms of a separate writing makes the promissory note a non-negotiable, cond
itional promise to pay); Hawkland,
Uniform Commercial Code Services § 3-105:2; Dzikowski v. Moreno (In re V.O.
C. Analytical Labs., Inc.) 263 B.R. 156, 160-61 (S.D. Fla. 2001); (The phrase "s
ubject to" or words to that effect are fatal to negotiability, regardless of the
actual provisions of the other document.) Hawkland, Uniform Commercial Code Se
rvices § 3-105:2; 28; (“An order or promise is conditional if either the instrum
ent states that the rights or obligations of the parties are defined or stated i
n another writing or that the rights or obligations of the parties are subject t
o the terms of another writing.”) Anderson, Uniform Commercial Code § 3-106:8 [R
ev].
2. FAILURE TO COMPLY WITH APPLICABLE HUD SINGLE FAMILY DEFAULT LOAN SERVICING R
EQUIREMENTS/ FAILURE TO COMPLY WITH CONDITIONS PRECEDENT: Both the HUD insured
promissory note and mortgage that are the subject of this foreclosure action dir
ectly and specifically apply, incorporate and refer to federal regulations issue
d by HUD that directly limit the plaintiff’s rights to accelerate and foreclose
in the case of a borrower’s default. The provisions in both the note and the mo
rtgage direct the plaintiff to engage in special default loan servicing and loss
 mitigation in its efforts to collect this debt to avoid foreclosure.
a. The mortgage has on its face a boxed FHA Case number and states:
“9. Grounds for Acceleration of Debt.
(a) Default: Lender may, except as limited by regulations
issued by the Secretary in the case of payment defaults, require immediate paym
ent…
(d) Regulations of HUD Secretary. In many circumstances re
gulations issued by the Secretary will limit Lender’s rights in the case of paym
ent defaults to require immediate payment in full and foreclose if not paid. Th
is Security Instrument does not authorize acceleration or foreclosure if not per
mitted by regulations of the Secretary.”
b. Defendant affirmatively defends this foreclosure based on the Plaintiffs’ fa
ilure to comply with the forbearance, mortgage modification, and other foreclosu
re prevention loan servicing requirements imposed on Plaintiffs and the sub
ject FHA mortgage by federal regulations promulgated by HUD, pursuant to th
e National Housing Act, 12 U.S.C. 1710(a). As a result, Plaintiffs have fa
iled to establish compliance with a statutory and contractual condition prec
edent to this foreclosure because of Plaintiffs’ failure to comply with the
federal regulations, as set out herein:
1. Defendant defaulted on this FHA insured residential
mortgage which is the subject of this cause due to reasons beyond her control.
2. Defendant suffered severe a severe financial hardshi
p as a result of losing her job.
3. Her husband was unexpectedly imprisoned.
4. Defendant suffered another economic setback and hardship in
March 2008 when the Department of Children and Families decreased her Food Stam
p benefits.
5. Defendant had to pay outstanding utility charges or have the
m disconnected while alone caring for two children.
6. These circumstances caused the defendant to suffer severe fi
nancial problems.
7. At all times defendant informed and notified the plaintiff through the plain
tiff’s outsourced servicer of the subject mortgage loan about her financial hard
ship and circumstances.
8. Defendant was in contact with Plaintiffs’ agents, representa
tives and employees personally, and through Jacksonville Area Legal Aid, and sh
e informed all parties, through her contacts and communications with the service
r of her loan of her financial hardship, her requests for loss mitigation and ac
ceptable terms by which defendant could reinstate her mortgage.
9. Plaintiff failed to offer any reasonable offer for or accomm
odation of loss mitigation in light of the defendant’s severe economic circumsta
nces.
10. Defendant timely informed Plaintiff of her extreme hardship
s, the nature of dependency on her income, and necessity that plaintiffs not dem
and aggressive unachievable payments in order to work out a modification.
11. The interaction between the defendant and U.S. Bank, N.A.,
is not fairly or accurately characterized as “working with” because of the failu
re of U.S. Bank, N.A. to follow the applicable default loan servicing oblig
ations imposed on the plaintiffs.
12. Plaintiff failed to properly service the Defendant’s federa
lly insured home loan under the troubled loan servicing regulations imposed on
this HUD insured loan because Plaintiff failed to offer this Defendant any
reasonable opportunity for loss mitigation in light of the Defendant’s severe ec
onomic hardships which were not of her making or under her control.
13.The Plaintiff did not evaluate the loan for purposes of modif
ication pursuant to the applicable and controlling federal servicing regulations
, but instead, Plaintiff failed and refused to provide this Defendant with a
ccess to a modification or workout of the subject mortgage reasonably as require
d by federal law.
 14.The Plaintiff did not properly evaluate this Defendant’s trou
bled loan for purposes of foreclosure avoidance because when the Defendant
defaulted on her loan due to reasons beyond her control, the Plaintiff failed to
adapt its collection and loan servicing practices to this Defendant’s individua
l circumstances.
15.The Plaintiff also did not make a reasonable effort as requir
ed by federal law to arrange a face to face meeting with the Defendant before th
ree full monthly installments were unpaid as required by 24 C.F.R. 203.604.
16.The Plaintiff failed to evaluate all available loss mitigatio
n techniques and failed to re-evaluate these techniques each month after the def
endant missed payments as required by 24 C.F.R. 203.605.
17.The plaintiff failed to properly evaluate this defendant’s lo
an for troubled loan servicing and failed to provide defendant with proper acces
s to evaluation for a loan modification or for forbearance by the act of filing
this foreclosure before offering Defendant any of the federally required fo
reclosure avoidance options.
18.Plaintiff ignored its obligation to provide the defendant acc
ess to her legal right to receive to default loan servicing pursuant to the cont
rolling federal laws and regulations that govern her HUD insured home loan and /
or the pooling and servicing agreement that applies to the default loan servici
ng obligations of the plaintiff in the course of servicing the subject mortgage
loan. The plaintiff’s pooling and servicing agreement is on file with the SEC.
19.Plaintiff denied this Defendant her right to receive forbeara
nce, mortgage modification, and other foreclosure prevention loan services befor
e the initiation of this foreclosure action.
20.Defendant made it clear to Plaintiff that she needed all the
financial reprieve that she could gain under the troubled loan servicing protoco
l set out in the federal law and regulations that apply to her federally in
sured home loan.
21.The Plaintiff failed to offer a loan modification to the defe
ndant that followed the applicable default loan servicing requirements; failed t
o take into account this Defendant’s financial circumstances; failed to add
ress or deal with the legitimate disputes and issues this defendant has raised c
oncerning the balance due under the terms of the subject mortgage loan.
22. The Defendant made reasonable attempts to get back on track in regards to t
he payment of her mortgage taking into account her financial difficulties and ha
rdship which were due to reasons beyond her control.
c. The Plaintiff was required under federal law to adapt its collection
and loan servicing practices to Defendant’s individual circumstances and failed
to do so.
d. The Plaintiff did not make a reasonable effort as required by federa
l law to arrange a face to face meeting with Defendant before three full monthly
installments were unpaid. 24 C.F.R. 203.604.
e. The Plaintiff was required by federal law to evaluate all availa
ble loss mitigation techniques and to re-evaluate these techniques each month af
ter default and failed to do so. 24 C.F.R. 203.605.
f. HUD has determined that the requirements of 24 C.F.R. Pa
rt 203(C) are to be followed before any mortgagee commences foreclosure.
g. Plaintiff has no valid cause of action for foreclosure against de
fendant unless and until Plaintiff can demonstrate compliance with the regulatio
ns in 24 C.F.R. Part 203(C).
h. As a result, Defendant was denied access to the foreclosure prev
ention services and the mortgage servicing options that the plaintiffs are oblig
ated to follow in servicing this federally insured home loan which are designed
to avoid foreclosure of this HUD insured mortgage.
i. Defendant did everything she could to keep up with her monthly m
ortgage payments.
j. This entire foreclosure and all the extra costs and fees associa
ted therewith were supposed to be avoided by and through the good faith and time
ly provision of default loan servicing and loss mitigation assistance which the
Defendant was entitled to receive and which the Plaintiff was obligated to provi
de under federal law and under the specific terms of the subjec
t mortgage and note.
k. Plaintiff denied this Defendant any opportunity to access a legi
timate HUD required process to avoid this foreclosure.
3. PLAINTIFF FAILED TO COMPLY WITH APPLICABLE LOAN SERVICING REQUIREMENTS: Pl
aintiff failed to provide separate Defendant with legitimate and non predatory a
ccess to the debt management and relief that must be made available to FHA borr
owers, including this Defendant and that control and apply to the subject mortga
ge loan. Plaintiff’s non-compliance with the conditions precedent to foreclosur
e imposed on the Plaintiff makes the filing of this foreclosure premature based
on a failure of a contractual and/or equitable condition precedent to foreclosur
e which denies Plaintiff’s ability to carry out this foreclosure.€
a. Defendant asserts that the special default loan servicing requirements conta
ined in the federal regulations are incorporated into the terms of the mortgage
contract between the parties as if written therein word for word and the defenda
nt is entitled to rely upon the servicing terms set out in the mortgage and the
HUD regulations.
b. Alternatively or additionally, the Defendant is contractually and equitably
entitled to enforce the special default servicing obligations of the plaintiff
described hereinabove.
c. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff demo
nstrates compliance with the foreclosure prevention servicing imposed by the mor
tgage contract under which the plaintiff owns the subject mortgage loan.
d. The Plaintiff failed, refused or neglected to comply with prior to the comme
ncement of this action with the servicing obligations specifically imposed on th
e Plaintiff in many particulars, including, but not limited to:
1. Plaintiff failed to service and administer the subject mortgage loan
in
compliance with all applicable federal state and local laws.
2. Plaintiff failed to service and administer the subject loan in accor
dance with the customary an usual standards of practice of mortgage lenders and
servicers.
3. Plaintiff failed to extend to defendants the opportunity and failed
to permit a modification, waiver, forbearance or amendment of the terms of the s
ubject loan or to in any way exercise the requisite judgment as is reasonably re
quired pursuant to the HUD regulations and the mortgage contract.
e. Plaintiff’s failure to meet the servicing obligations cause the filing by Pl
aintiff of this foreclosure to be in premature, in bad faith and a breach by Pla
intiff of its obligation to Defendant set out in the mortgage contract and as sp
ecified in the HUD regulations and the contractual and equitable duty of the pla
intiff to act in good faith and to deal fairly with defendant.
f. Instead, Plaintiff’s servicing failures as set forth herein render Plaintif
f’s actions in filing this premature foreclosure to be in breach of the mortgage
contract, in breach of plaintiff’s contractual and equitable fiduciary duties o
wed to defendant; in bad faith and not in accordance with the acceptable loan se
rvicing required under the mortgage, the note and the HUD regulations.
g. Plaintiff intentionally failed to act in good faith or to deal fairly with
the Defendant by failing to follow the applicable standards of residential singl
e family mortgage servicing as described in these Affirmative Defenses thereby d
enying the Defendant access to the residential mortgage lending and servicing pr
otocols applicable to the subject note and mortgage.
5. ILLEGAL CHARGES ADDED TO BALANCE: Plaintiff has charged and/or collected pay
ments from Defendant for attorney fees, legal fees, foreclosure costs, late char
ges, property inspection fees, title search expenses, filing fees, broker price
opinions, appraisal fees, and other charges and advances, and predatory lending
fees and charges that are not authorized by or in conformity with the terms of t
he subject note and mortgage or the controlling pooling and servicing agreement
which specifies the waiver of late payments and other collection charges as part
of the forbearance and loan modification default loan servicing. Plaintiff wro
ngfully added and continues to unilaterally add these illegal charges to the bal
ance Plaintiff claims is due and owing under the subject note and mortgage.
6. FAILURE OF GOOD FAITH AND FAIR DEALING: UNFAIR AND UNACCEPTABLE LOAN SERVICI
NG: Plaintiff intentionally failed to act in good faith or to deal fairly wit
h the subject Defendant by failing to follow the applicable standards of residen
tial single family mortgage servicing as described in these Affirmative Defenses
thereby denying Defendant access to the residential mortgage servicing protocol
s applicable to the subject note and mortgage.
7. UNCLEAN HANDS/ESTOPPEL: The Plaintiff comes to Court with unclean hands an
d is prohibited by reason thereof from obtaining the equitable relief of foreclo
sure from this Court as set forth in the Defendant’s statement of facts containe
d hereinabove and incorporated herein. The Plaintiffs’ unclean hands result fro
m the Plaintiffs intentional and reckless failure to properly service this mortg
age pursuant to the applicable federal regulations and the contract between the
parties before filing this foreclosure action. Plaintiff intentionally failed t
o offer Defendant access to the special default loan servicing for financially t
roubled borrowers that the applicable federal law and the contract between the p
arties requires including moratorium, forbearance and loan modification. As a m
atter of equity, this Court should refuse to foreclose this mortgage because acc
eleration of the note would be inequitable, unjust, and the circumstances of thi
s case render acceleration unconscionable. This Court should refuse the acceler
ation and deny foreclosure because the Plaintiff has waived the right to acceler
ation or is estopped from doing so because of intentionally misleading and reckl
ess conduct and unfulfilled conditions.
WHEREFORE, Defendant requests the Court dismiss the Plaintiffs
’ Complaint with prejudice, and for all other relief to which this Defendant pro
ves herself entitled including an award of reasonable attorney’s fees and costs
in this action.
8. PLAINTIFF LACKS STANDING: U.S. Bank, N.A. is not the true owner of the clai
m sued upon, is not the real party in interest and is not shown to be authorized
to bring this foreclosure action.
Counterclaims
Count I - Declaratory and Injunctive Relief
1. This is Defendant’s action for declaratory and injunctive relief aga
inst the Plaintiff.
2. Defendant reasserts and alleges, as her statement of facts her Affirmati
ve Defenses as stated above.
3. Defendant contends that the Plaintiff has no right to pursue this foreclo
sure because the Plaintiff has failed to first provide the Defendant with the sp
ecial troubled home loan servicing of this FHA insured residential mortgage in a
ccordance with the terms of the note and mortgage and the applicable federal reg
ulations at 24 C.F.R. Part 203 Subpart C prior to filing this foreclosure action
.
4. Defendant contends that she has a right to receive forbearance, mor
tgage modification, and other foreclosure prevention loan services from the Plai
ntiff pursuant to and in accordance with the federal regulations, the note and t
he mortgage before the commencement or initiation of this foreclosure action.
5. Defendant is in doubt as to her rights and status as a borrower
under the National Housing Act and the above described federal regulations made
applicable to and incorporated in the subject mortgage as a result of the Plaint
iffs’ failure to service the subject loan pursuant to the mortgage, the note and
the HUD regulations which are the applicable federal law and because the Defend
ant is now being subjected to this foreclosure action, all of which the Defendan
t contends are illegal acts and omissions of Plaintiff.
6. Defendant is being denied and deprived by Plaintiff of her rig
ht to access the special troubled mortgage servicing required under the federal
statute and regulations and the subject note and mortgage.
7. Defendant is being illegally subjected to this foreclosure actio
n, being forced to defend same, being charged illegal and predatory court costs
and related fees and attorney fees, and is having her credit slandered and negat
ively affected, all of which constitute irreparable harm to this Defendant for t
he purpose of statutory injunctive relief pursuant to the Florid
a Declaratory Judgment Act.
7. As a proximate result of the Plaintiff’s unlawful actions, Def
endant continues to suffer the irreparable harm described above for which moneta
ry compensation is inadequate.
8. Defendant has a right to access the special troubled home loan serv
icing prescribed by the federal regulations and the mortgage contract which is b
eing denied by the Plaintiff.
9. There is a substantial likelihood that Defendant will prevail on th
e merits of her
counterclaim.
WHEREFORE, Defendant requests the Court dismiss the Plaintiffs’ Comp
laint with prejudice, enter a judgment pursuant to Fla. Stat. 86 declaring that
the Plaintiff provide Defendant with access to the special servicing provided in
the applicable federal regulations and required by the mortgage contract and e
njoining the Plaintiff from charging foreclosure fees and costs and from commenc
ing or pursuing this foreclosure until such servicing is provided and for all ot
her relief to which this Defendant proves herself entitled including an award of
reasonable attorney’s fees and costs in this action.
COUNT III - Consumer Collections Act Violation
Defendant reasserts and alleges, as her statement of facts her Affirmati
ve Defenses as stated above.
10. Defendant is a consumer and the obligation between the parties w
hich is the debt owed pursuant to the subject note and mortgage is a consumer de
bt as defined in Fla. Stat. Section 559.55(1).
Fla. Stat. Section 559.72(9) provides: Prohibited Practices generally:
In collecting consumer debts, no person shall: (9) claim, attempt,
or threaten to enforce a debt when such person knows that the debt is not legi
timate
or assert the existence of some other legal right when such person knows that th
e right does not exist.
12. Plaintiff engaged and continues to engage in consumer collecti
on conduct which violates Fla. Stat. Section 559.72(g) in the following and othe
r particulars:
a. Plaintiff breached the mortgage contract and als
o continues to enforce this debt and pursue this foreclosure action even though
the Plaintiff knows that no such right exists and this foreclosure action is thr
eatening and premature because the Plaintiff has not serviced this federally ins
ured home loan pursuant to or in compliance with the special foreclosure prevent
ion loan servicing federal regulations made applicable to this loan be law and b
y the terms of the mortgage and note.
b. The Plaintiff continues to claim, attempt, and threate
n to enforce this debt through acceleration and foreclosure when the Plaintiff k
nows that such conduct is premature and in bad faith b
ecause such right does not yet exist as Plaintiff has f
ailed to meet the contractual and statutory conditions precedent to asserting
its right to collect this home loan debt through foreclo
sure contained in the subject mortgage and in
12 U.S.C. 1710(a) and 24 C.F.R. Part 203 Subpart C.
13. Defendant, as a proximate result of Plaintiffs’
acts and conduct described above, has sustained economic damage for which the De
fendant is entitled to compensation from the Plaintiff pursuant to Fla. Stat. Se
ction 559.77.
WHEREFORE, Defendant requests this Court dismiss the Plaintiffs’ C
omplaint with prejudice and award this Defendant actual or statutory damages, wh
ichever is greater, attorney’s fees and costs, and for all other relief to which
this Court finds Defendant entitled.
COUNT IV: Breach of Fiduciary Duty
Defendant asserts and alleges her affirmative defenses as set forth hereinabove
as her Statement of Facts herein.
14. Plaintiff owed Defendant a fiduciary duty and obligation under th
e subject note and mortgage and by operation of law to, among other things, act
in good faith and in the best interest of Defendant by providing the defendant w
ith the special troubled home loan servicing of this FHA insured residential mor
tgage in accordance with the terms of the note and mortgage and the applicable
federal regulations at 24 C.F.R. Part 203 Subpart C prior to filing this foreclo
sure action.
15. Plaintiff failed, refused and/or neglected to carry out its contr
actual fiduciary obligations owed to Defendant in connection with the servicing
of the subject federally insured home loan.
16. As a result of the Plaintiffs’ breach of its contractual and equi
table fiduciary duty, Defendant has sustained monetary damage which includes hav
ing to defend this foreclosure and being charged illegal and predatory servicing
charges, court costs and related fees and attorney’s fees, having her credit sl
andered and negatively affected.
WHEREFORE, Defendant requests this Court dismiss the Plaintiffs’ Complai
nt with prejudice and award this defendant judgment against the Plaintiff for he
r damages, for an award of attorney’s fees and for all other relief as the Court
deems proper.
COUNT V: Breach of Obligations of Good Faith and Fair Dealing
Defendant asserts and alleges her affirmative defenses as set forth hereinabove
as her Statement of Facts herein.
17. Plaintiff owes defendant a duty implied in the note and mortgage to
act in good faith to deal fairly with defendant by providing the defendant with
the special troubled home loan servicing of this FHA insured residential mortga
ge in accordance with the terms of the note and mortgage and the applicable fede
ral regulations at 24 C.F.R. Part 203 Subpart C prior to filing this foreclosure
action.
Plaintiff materially breached its duties of good faith and fair dealing as des
cribed hereinabove proximately resulting in damage to defendant as described her
einabove.
WHEREFORE, Defendant requests this Court dismiss the Plaintiffs’ Complai
nt with prejudice and award this Defendant judgment against the Plaintiff for he
r damages, for an award of attorney’s fees and for all other relief as the Court
deems proper.
COUNT VI: Breach of Contract
Defendant asserts and alleges her affirmative defenses as set forth hereinabove
as her Statement of Facts herein.
WHEREFORE, Defendant requests this Court dismiss the Plaintiffs’ Complai
nt with prejudice and award this Defendant judgment against the Plaintiff for he
r damages, for an award of attorney’s fees and for all other relief as the Court
deems proper.
DEMAND FOR TRIAL BY JURY
Defendant hereby demands trial by jury.€
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished to Douglas C. Z
ahm, Attorney for Plaintiff, 18830 U.S. Highway, 19 North, Suite 300, Clearwater
, FL. 33764 by U.S. Mail on this _______________________________.
JACKSONVILLE AREA LEGAL AID, INC.
_______________________________________
APRIL C. CHARNEY, Esquire
Attorney for the Defendant
Florida Bar Number 310425
126 West Adams Street
Jacksonville, FL 32202
Telephone: (904) 356-8371, x.373
Fax: (904) 356-8780
 Email: april.charney@jaxlegalaid.
org