You are on page 1of 6




CASE NO. 08-I0621-CI-07



____ ~D=E=F~E~N=D=A=N~T~ ,/


COMES NOW, the Defendant PATRICK ARMSTRONG, by and through the

undersigned counsel and hereby files the Motion to Dismiss and as grounds therefore

would state as follows:

I. Admitted this is an in rem action, unknown where said property which may be

the subject of said complaint is located inasmuch as the Plaintiff has not alleged or

identified what property is the subject of the instant lawsuit, as such the complaint fails to

state a cause of action upon which relief may be granted. Denied that the named Plaintiff

has the capacity to demand any relief of this court or to maintain this instant actionand

therefore the entire paragraph is Denied.

2. Denied.

3. Admitted.

4. Denied that the Plaintiff is or can be the holder of the note and mortgage as

identified in the instant litigation, Denied that Plaintiff has the authority to pursue the

instant action. Denied that Plaintiff has the capacity to avail itself of the jurisdiction of

this court or to maintain this instant action and therefore the entire paragraph is Denied.

5. Admitted.

6. Without knowledge and therefore Denied. Denied that Plaintiff has the

capacity to make any representations regarding the status of the transaction at issue in this case and therefore the entire paragraph is Denied.

7. Denied that Plaintiff may make any demands upon this Defendant or any other

party. Denied that the Plaintiff has any capacity to maintain this action and therefore the entire paragraph is Denied.

8. Denied that there is any basis for the Plaintiff to demand any payment from

any party. Denied that the Plaintiff may maintain this action and therefore the entire paragraph is Denied.

9. Denied.

10. Without knowledge and therefore Denied.

11. Without knowledge and therefore Denied.


As and for its first affirmative defense, the Defendant affirmatively defends this foreclosure action based on the Plaintiffs failure to comply with the forbearance, mortgage modification, an other foreclosure prevention loan servicing requirements that may be imposed on it by the Federal Housing Administration, and regulations imposed by the Housing and Urban Development agency, pursuant to the Federal Housing Act, 12, U.S.C. § 1710(a) and 12 U.S.C. §1701. Discovery is on-going, but Defendant asserts and maintains this Defense until it may be shown that such defenses do not apply. As a result, Plaintiff failed to establish compliance with a statutory and contractual condition precedent to this foreclosure because of Plaintiff s failure to comply with federal regulations more particularly described below:

a) Defendant defaulted on this residential mortgage which is the subject of this cause of action due to reasons beyond the borrower's control.

b) The Plaintiff is required under federal law to adapt its collection and loan servicing practices to this Defendant's individual circumstances and failed to do so.

c) The Plaintiff did not make a reasonable effort as required by federal law to arrange a face to face meeting with the Defendant before three monthly installments were unpaid as required by 24 C.F.R. § 203.604.

d) The Plaintiff is required under federal law to evaluate all available loss mitigation techniques and to re-evaluate these techniques each month after default and failed to do so. 24 C.F.R.§ 203.605.

e) The Department of Housing and Urban Development has determined that the requirements of 24 C.F.R. Part 203(c) are to be followed before any mortgagee foreclosure.

f) Plaintiff has no valid cause of action for foreclosure unless and until Plaintiff can demonstrate compliance with regulations 24 C.F.R. Part 203(c).

g) This Defendant made significant efforts to access foreclosure prevention services from Plaintiff and to make payments but Plaintiff denied this Defendant the required opportunity to access and obtain mortgage servicing options designed to avoid foreclosure of this mortgage.

The Plaintiff thus comes to the Court with unclean hands as a result of its failures and

omissions as set forth in the statement of facts set fort above and incorporated herein.

Plaintiff is prohibited by reason thereof from obtaining the equitable relief of foreclosure

from this Court. The Plaintiff s unclean hands result from the Plaintiff s intentional and

reckless failure to properly service this mortgage pursuant to the federal regulations an

specifically, by filing this foreclosure before offering Defendant any of the federally

required foreclosure avoidance options. As a matter of equity this Court should refuse to

foreclosure this mortgage because acceleration of the note would be inequitable, unjust,

and the circumstances of this case render acceleration unconscionable.


As and for its second affirmative defense, the Defendant asserts that this loan

transaction is subject to the requirements of the Federal Truth in Lending Act (TILA),

which requires, among other things, that a lender make certain disclosures to a consumer

when the loan is secured by the borrower's primarily place of residence. Significantly,

15 U.S.C. 1635 (a) provides that a consumer may rescind the loan transaction and the

lender may not proceed with any foreclosure action if it is asserted that the lender did not

comply with certain specific disclosure requirements and did not correctly provide to the

consumer certain disclosures that are deemed "material" within the definitions provided

by this statute. The Defendant believes that the Plaintiff may not have complied with the

material terms of this statute and thus provides this Notice of Intent to Rescind the

Consumer Credit Transaction which is the subject of this lawsuit, desires to avail itself of

the protections offered by this consumer protection statute, and therefore requests that

this honorable court not grant foreclosure in this matter until such time as it can be

determined whether the Plaintiff has complied with the statute and is thus entitled to

proceed with this action.


1. As and for its Third Affirmative Defense, the Defendant asserts that the

Plaintiff should not be permitted to obtain affirmative relief from the Defendant because

the Plaintiff has failed to comply with contractual pre conditions to pursuit of this action.

Specifically, Paragraph 19 of the Mortgage which is attached to Plaintiffs

complaint provides:

19. Borrower's Right to Reinstate After Acceleration. If Borrower meets certain conditions, Borrower shall have the right to have enforcement of this Security Instrument discontinued at any time ... prior to the earliest of: ... (c)entry of judgment enforcing this Security Instrument ... Those conditions are that Borrower (a) pays Lender all sums which would then be due under this Security Instrument and the Note as if no acceleration had occurred ... "


"22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument ... The notice shall specify: a) the default; b) the action required to cure the default; c) a date, not less than 30 days from the date the notice is given, by which the default may be cured ... .Ifthe default is not

cured ... Lender at its option may foreclose this Security Instrument by judicial proceeding .... "

2. The Defendants specifically assert that they have never received the required

notices of default nor been provided the opportunities to cure the defaults, as provided in

the contract and which are a pre-requisite to the Plaintiff proceeding with the instant


3. The Plaintiff has not asserted that it fulfilled all conditions precedent to filing the

instant action and the Defendant has not waived its right to insist on the Plaintiff fulfilling

all the conditions that are required to be fulfilled prior to filing the instant lawsuit.


1. The name of the Plaintiff of the instant lawsuit, as asserted in the caption, is

"US Bank National Association". Nowhere in the body of Plaintiff's Complaint does the

Plaintiff set off or describe in any way the structure of the entity so described nor does

the Plaintiff assert in what capacity does the Plaintiff asserts to avail itself of the

jurisdiction of this court. Nowhere in the body of Plaintiff's complaint does it assert the

basis for its entity-existence or explain in any way the form of the entity that presents

itself before the court.

2. Florida Statutes, Chapter 607.0501 and 607.1507 provide that a foreign

corporation may not maintain any action in Florida until the corporation complies with

the applicable registration provisions that require maintenance in Florida of an office and

registered agent while Florida Statutes Chapter 865.09 provides that if a business fails to

register a fictitious name, the business may not maintain any action, suit or proceeding in

any court in Florida until the registration requirements are complied with.

3. A search of the records of the Florida Department of State, Division of

Corporations reveals that there is no corporation or entity registered with the name "US

BANK NATIONAL ASSOCIATION" and the Plaintiff has not pled or asserted how its

legal or entity status would exempt or disqualify it from complying with the

aforementioned statutes.

4. Because the Plaintiff has not properly identified itself to this court or to this

Defendant and because the named Plaintiff does not appear to be registered as an entity

that may transact business in this state, the Plaintiff is not entitled to obtain affirmative

relief from this court.


I hereby certify that a true and correct copy of the foregoing was mailed on this the 9th Day of February, 2009 to Stephanie Lord, Esq., Florida Default Law Group, PL

PO Box 25018, Tampa FL 33 18.

w D. Weidn , sq. orney for Defendant

1229 Central A venue

st. Petersburg, Florida 33705 PH: 727/ 894-3159

Bar # 0185957

Respectfully submitted on this the 9th