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Affirmative Defenses

Affirmative Defenses

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Published by: Curtis Holzschuh on Feb 11, 2011
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Affirmative Defenses

This is a collection of affirmative defenses. Some of the defenses may not apply to your case; therefore do not blindly cut and paste into your pleading. Carefully analyze each to ensure that it fits your situation. If you just received a foreclosure summon, do no rush to file an answer. You should ask for more time from the judge by using the Motion To Enlarge Time form. Use that extra time to research your case. Learn as much as you can the foreclosure procedure in your local area. 1. Standing. The Plaintiff is not registered to do business in the State of Florida and therefore unable to maintain this action and the court does not have jurisdiction. Se Fla. Stat. 607.1502(1) and 607.1501(a), (g) and (h). The complaint fails to join indispensable parties, specifically the loan originator and the loan servicer(s) and the complaint fails to adequately show the chain of title demonstrating that Plaintiff is in fact the real party in interest with standing to bring this action. 2. Unclean Hands. Upon information and belief, Plaintiff and/or its predecessor(s) in interest had unclean hands in their course of dealing with Defendant because the several facts alleged herein below, and Plaintiff also wrongfully refused reinstatement. 3. Violation of TILA. Upon information and belief, Plaintiff and/or Plaintiff and/or its predecessor(s) in interest violated various provisions of the Truth in Lending Act ("TILA"), which is codified at 15 U.S.C. section 1601 et seq. and Regulation Z section 226 et seq. by interalia: a) failing to deliver to the Defendant two copies of notice of the right to rescind (with all of the pertinent statutory disclosures) b) failing to properly and accurately disclose the "amount financed" c) failing to clearly and accurately disclose the "finance charge" d) failing to clearly and accurately disclose the "total of payments" e) failing to clearly and accurately disclose the "annual percentage rate" f) failing to clearly and accurately disclose the number, amounts and timing of payments scheduled to repay the obligation g) failing to clearly and accurately itemize the amount financed. The transaction was subject to TILA and rescission rights since it was a consumer credit transaction involving a lien or security interest placed on the Defendant's principal dwelling, and was not a residential mortgage as defined in 15 U.S.C. 1602(w), because the mortgage was not created to finance the acquisition of the dwelling. As a result, Defendant is entitled to rescind the transaction and elect to do so. 4. Violation of RESPA. Upon information and belief, Plaintiff and/or Plaintiff and/or its predecessor(s) in interest violated various provision of the Real Estate Settlement Procedure Act ("RESPA"), which is codified at 12 U.S.C. section 2601, et seq. by, interalia: a) Failing to provide the Housing and Urban Development (HUD) special information booklet, a Mortgage Servicing Disclosure Statement and Good Faith Estimate of settlement/closing costs to Defendants at the time of the loan application or with three (3) days thereafter;

Fraud. the originator of the loan and its co-conspirators made the following representations: a) Before the loan was made. d) Charging a fee at the time of the loan closing for the preparation of truth-in-lending. the originator and/or its co-conspirators (hereinafter referred to collectively as "Plaintiff and/or its predecessor(s) in interest") represented to Defendants that they had superior knowledge. Violations of HOEPA. including trespass on Defendant's property. as long as Plaintiff and/or its predecessor(s) in interest thought they would not be caught. Specifically. or properlty of any person. Upon information and belief. kickbacks and/or other things of value in exchange for referrals of settlement service business. and are therefore void and unenforceable. skill and ability to Defendants in making mortgage loans. the alleged Note and Mortgage and other loan documents." In this case. were induced by the fraud of the Plaintiff and its predecessors in interest and its co-conspirators. Plaintiff and/or its predecessor(s) in interest violated various provisions of the Home Ownership Equity Protection Act ("HOEPA") pursuant to 15 USC § 1639 et seq. and . uniform settlement and escrow account statements. reputation or property. Upon information and belief. and Racketeer Influenced and Corrupt Organization (RICO) violations. 6. which defines it as "any extension of credit whereby it is the understanding of the creditor and the debtor at the time an extension of credit is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person. These violations provide an extended three year right to rescission and enhanced monetary damages for the Defendants. it was understood that Defendants' failure to repay the loan could result in the use of criminal means by the Plaintiff to cause harm to Defendants' or others' persons. perjury. in effect. mail and wire fraud. reputation. c) Giving or accepting fees. Plaintiff and/or its predecessor(s) in interest are guilty of such an extension of credit because at the time of the loan. the Plaintiff and/or its predecessor(s) in interest represented to Defendants that: (1) Defendants would receive the best mortgage available (2) that it would be a "good" loan. b) Before the loan was made. information. 5.b) Failing to provide Defendants with an annual Escrow Disclosure Statement for each of year of the mortgage since its inception. and splitting fees and receiving unearned fees for services not actually performed. by failing to make proper disclosures and committing intentional predatory lending by including prohibited terms. Florida Statutes. Extortionate Extension of Credit. and that they would be looking out for the best interests of Defendants in the financing process and. Upon information and belief. 7. Plaintiff and/or Plaintiff and/or its predecessor(s) in interest are guilty of an extortionate extension of credit pursuant to §687. protecting and promoting Defendants' benefit.071(1)(e).

1) To confuse. charged excessive fees. gave kickbacks and made payments of fees to parties not entitled to receive them. Payment. f) The Plaintiff and/or its predecessor(s) in interest did not look out for Defendants' best interest or protect and promote Defendants' benefit.(3) it would be of substantial benefit to Defendants. and failed to provide Defendants with all disclosures required by law. but rather was in the best interest and to the benefit of the Plaintiff and/or its predecessor(s) in interest. the Plaintiff and/or its predecessor(s) in interest intentionally scheduled the closing with insufficient time at the closing for Defendants to have the time to actually read the documents requiring Defendants' signature. information. j) Defendants reasonably relied on the representations by the Plaintiff and/or its predecessor( s) in interest to their detriment. 8. i) The loan was not in Defendants' best interest. however Plaintiff and/or its predecessor(s) in interest improperly applied such payments resulting in the fiction that Defendants were in default. Defendants have made all payments required by law under the circumstances. c) The representations described in a) and b) above were made for the purpose of inducing Defendants to enter into the loan transaction. Defendants are entitled to a full accounting through the master transaction histories and . Upon information and belief. k) The Plaintiff and/or its predecessor(s) in interest failed to disclose all costs. bamboozle and defraud Defendants. g) Defendants did not receive the best loan available. d) The representations were false and known by Plaintiff and/or its predecessor(s) in interest to be false at the time the representations were made and at the time the loan was made. h) The loan was not a "good" loan. skill and ability to Defendants in making mortgage loans as represented or did not use the same for the benefit and best interest of Defendants. with the intent to defraud. fees and expenses. m) Plaintiff and/or its predecessor(s) in interest. in that: e) The Plaintiff and/or its predecessor(s) in interest did not have superior knowledge. intentionally failed to provide the loan closing documents in advance of the closing. n) The only parties who benefited from the loan were the Plaintiff and/or its predecessor(s) in interest and their service providers.

F. 501. fees and expenses associated with the loan. In light of all of the foregoing defenses. the Plaintiff and/or Plaintiff and/or its predecessor(s) in interest also violated the Unfair and Deceptive Trade Practices Act.S. the principal balance claimed as owed is not owed and is the wrong amount.general ledgers for the account since a dump or summary of said information cannot be relied upon to determine the rightful amounts owed. 11. the loan has not been properly credited or amortized. so that the maximum tax discount available to Defendants could be obtained on Defendants' property and so that insurance coverage on the property would not lapse. e) Obtaining a yield spread premium (YSP) based upon the "selling" of a higher interest rate. and on the face of the purported loan documents. 106 So. et seq. and/or non disclosure of the range of interest rates for which Defendants qualified. Hoggson Corporation. Upon information and belief. Plaintiff placed Forced Insurance on the property and is attempting to collect on property taxes. Plaintiff has failed to join an indispensable party. 9.204. and/or unfair or deceptive acts or practices in the conduct of trade or commerce in violation of §501. Florida Statutes. Violation of Unfair and Deceptive Trade Practices Act. insurance and fees not owed.201. contends that since the note and mortgage involved in this litigation are payable to a business trust. W. recoupment or civil penalty. 408 (1925). 10. J. nominal and actual damages. Additionally. 90 Fla. it is unconscionable to enforce the Mortgage by foreclosure. Unconscionability. in addition to the facts alleged in the preceding paragraphs. c) Failing to properly disclose at or prior to closing all costs. Failure to Join Indispensable Party. Further. attorney's fees and costs. by: a) Failing to promptly and/or properly pay taxes or insurance premiums when due. the terms and circumstances of the Note and Mortgage were unconscionable when made and were unconscionably exercised. d) Charging excessive fees and making payments of fees to parties not entitled to receive them. and entitle the Defendants to a setoff. any action on those instruments must be brought by all the members of the trust-not just the trustees. b) Failing to provide Defendants with an annual statement of the escrow account kept for payment of taxes and insurance. 343. f) All such actions by Plaintiff and/or its predecessor(s) in interest are unconscionable acts or practices. Willey v. .

f) Therefore. The mortgage and note which are the subject of this action have been rescinded and therefore the mortgage(s) and note(s) are void. a) Plaintiff alleges ownership of the note and mortgage in question. Stat. e) Therefore Fla. Rescission.3091.. c) ABC Mortgage and/or its agent used unjustified pressure to make Mr. 17.1041 does not apply to transfer or enforce the promissory note at issue in this foreclosure action. 2008.1041 because it does not contain an unconditional promise to pay and/or other requirements to qualify as a negotiable instrument. . 16. 14.12. Stat. Plaintiff has waived the right to acceleration due to intentionally misleading and reckless conduct for which it is liable. pursuant to the Fair Debt Collection Practices Act. §673. This court lacks jurisdiction over the subject matter. Lack of Jurisdiction. d) The note at issue is not a negotiable instrument as defined under §673. b) Plaintiff claims the right to re-establish such note under Fla. Failure to Timely Serve Complaint. and unconscionable. 13. 2008. §673. As indicated in the Notice attached to the Complaint. c) Fla. As a matter of equity.S. Unclean Hands. unjust. Defendant hereby disputes the debt and demands that Plaintiff verify the debt in accordance with the Fair Debt Collection Practice Act. b) Plaintiff is liable for actions of ABC Mortgage and/or its agents. Doe sign the mortgage. Stat. It appears on the face of the complaint that a person other than the Plaintiff was the true owner of the claim sued upon at the time this action was filed and that the Plaintiff is not the real party in interest and is not shown to be authorized to bring this foreclosure action. but not served upon Defendant until April 13. 2008. §673. Plaintiff has unclean hands due to its actions described below and therefore is prohibited from obtaining equitable relief of foreclosure. Stat. filed September 1. b) However. a) Complaint was filed on February 13. Plaintiff is required to suspend litigation until verification of the debt at issue. §673. Plaintiff has failed to state a claim for which relief may be granted.3091 provides only for re-establishment of negotiable instruments as defined under Fla. that Defendant may dispute the debt and Plaintiff is required to provide verisifcation fo the debt. 2007. pursuant to 15 U. Plaintiff is required to notify Defendant. Failure to Provide FDCPA Notice. 18. d) Mr. Duress.1041. this Court should refuse to foreclose this mortgage because acceleration of this note would be inequitable. 15. Defendant was served on July 3. et seq. including telling him that he would be liable for the closing costs if he did not go through with closing. Plaintiff brought this action without providing notice to Defendant of Defendant's right to dispute the debt.C §§ 1601. a) Plaintiff filed a claim to re-establish a lost note. Failure to State a Claim for Which Relief May Be Granted. Doe was harmed by ABC Mortgage's action.

Defendant is required to be served within 120 days after filing of the initial pleading. d) Plaintiff served Defendant approximately 170 days after filing the initial pleading. Doe suffered damages in justifiable reliance on the representation. vi.070(j). Pro. ii. 19. iv. 1. Mr. Fraud in The Inducement. v. R. Plaintiff is liable for actions of ABC Mortgage and/or its agents. i. ABC Mortgage and/or its agents made false statements and/or omissions regarding a material fact. ABC Mortgage and/or its agents intended that the representation induce plaintiff to act on it. ABC Mortgage and/or its agents knew or should have known the representation was false. Civ. . Plaintiff alleges ownership of the note and mortgage in question.c) Pursuant to Fl. iii.

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