DEFENDANTS, , ANSWER, AFFIRMATIVE DEFENSES; COUNTERCLAIMS AND DEMAND FOR JURY TRIAL
COME NOW, the Defendants, , by and through the undersigned attorney, and for their answer, affirmative defenses, counterclaims and demand for jury trial, state: ANSWER 1. Denied, the subject note is not a negotiable instrument and is not subject to re-establishment under F.S. 673.3091. Defendant seeks dismissal of this lost note count for failure to state a cause of action upon which relief can be granted. 2. Admit. 3. Denied. 4. Denied. 5. Denied. 6. Denied. 7. Denied. 8. Denied. 9. Denied. 10. Admit for jurisdictional purposes only. 11. Denied. 12. Denied. 13. Admit. 14. Denied. 15. Denied. 16. Denied. 17. Without sufficient knowledge to admit or deny, and therefore denied. 18. Without sufficient knowledge to admit or deny, and therefore denied. 19. Without sufficient knowledge to admit or deny, and therefore denied.
23. late fees. property inspection fees. Without sufficient knowledge to admit or deny. 22. Without sufficient knowledge to admit or deny. mortgage modification and other foreclosure prevention loan
. foreclosure costs. 21. Florida law requires the plaintiff send a notice of default and intent to accelerate before any acceleration of the subject debt is effective.
AFFIRMATIVE DEFENSES 1. 3. INEFFECTIVE NOTICE OF DEFAULT: The right of the plaintiff to accelerate the balance due on the subject promissory note pursuant to the terms of the mortgage is optional and under these circumstances.20. title search expenses. ILLEGAL CHARGES ADDED TO BALANCE: Plaintiff has charged and/or collected payments from Defendant for attorney fees. Defendant has been denied a good faith opportunity pursuant to the mortgage and the servicing obligations of the Plaintiff to avoid acceleration and this foreclosure. broker price opinions. Denied. and predatory lending fees that that are not authorized by or in conformity with the terms of the subject note and mortgage. Plaintiff failed to provide Defendant with a Notice of Default and Intent to Accelerate that complies with applicable law or meets the requirements of Paragraph 22 of the subject mortgage and the default and notice sections of the promissory note. As a result. Denied. and therefore denied. legal fees. 2. appraisal fees. FAILURE OF CONTRACTUAL CONDITION PRECEDENT: INVALID. and other charges and advances. Plaintiff wrongfully added and continues to unilaterally add these illegal charges to the balance Plaintiff claims is due and owing under the subject note and mortgage. filing fees. NO HUD COUNSELING NOTICE: Plaintiff failed to comply with the forbearance. and therefore denied.
FAILURE OF GOOD FAITH AND FAIR DEALING: UNFAIR AND UNACCEPTABLE LOAN SERVICING: Plaintiff intentionally failed to act in good faith or to deal fairly with the subject Defendants by failing to follow the applicable standards of residential single family mortgage servicing as described in these Affirmative Defenses thereby denying Defendant s access to the residential mortgage servicing protocols applicable to the subject note and mortgage. The U.C. The Plaintiff’s unclean hands result from the Plaintiff’s improvident and predatory intentional failure to comply with material terms of the mortgage and note. This court should refuse the acceleration and deny foreclosure because Plaintiff has waived the right to acceleration or is estopped from doing so because of misleading conduct and unfulfilled contractual and equitable conditions precedent. 4. all as described herein above.C. Department of Housing and Urban Development. 5.S. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff demonstrates compliance with 12 U.C. and the circumstances of this case render acceleration unconscionable.servicing requirements imposed on Plaintiff pursuant to the National Housing Act. the failure to comply with the default loan servicing requirements that apply to this loan. unjust. As a matter of equity.
.S. Department of Housing and Urban Development has determined that 12 U. 1701x(c)(5) which requires the Plaintiff to advise Defendant of any home ownership counseling Plaintiff offers together with information about counseling offered by the U. 1701x(c)(5).S. UNCLEAN HANDS: The Plaintiff comes to court with unclean hands and is prohibited by reason thereof from obtaining the equitable relief of foreclosure from this Court. this Court should refuse to foreclose this mortgage because acceleration of the note would be inequitable. 1701x(c)(5) creates an affirmative legal duty on the part of the Plaintiff and Plaintiffs non-compliance with the laws requirements is an actionable event that affects the Plaintiffs ability to carry out this foreclosure.S.S. 12 U.
N. b. or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought. 2d 596 (Fl. Rule 1. Inc. Your Construction Center. 316 So. FAILURE TO STATE A CAUSE OF ACTION: The Plaintiff is not the real party in interest and is not authorized to bring this foreclosure claim. guardian. the prosecution of a foreclosure action is by the owner and holder of the mortgage and the note.” Plaintiff alleges in its complaint that is it’s “the holder of the Mortgage Yet Plaintiff. a.210(a) of the Florida Rules of Civil Procedure provides.P. 2d 596 (Fl. The party prosecuting the action must have a sufficient stake in the outcome and that the party bringing the claim be recognized in the law as being a real party in interest entitled to bring the claim. Mortgage. Inc. 4th DCA 1975) d. CHASE HOME FINANCE LLC. v. v. 4th DCA 1975).6. This entitlement to prosecute a pertinent part:
. e. attached a purported Note and Mortgage and /or is entitled to enforce the Mortgage Note and copy of a Mortgage and Note that states the lender and principal as J.Morgan Chase Bank. Gross. In Florida. The plaintiff is not entitled to maintain this action in which it seeks to foreclose on a note that the plaintiff does not own. The plaintiff in this action meets none of these criteria. a party with whom or in whose name a contract has been made for the benefit of another.. administrator.. A person other than the Plaintiff is the true owner of the claim sued upon and the Plaintiff is not the real party in interest and is not authorized to bring this action. Gross. in Every action may be prosecuted in the name of the real party in interest.A.. f. but a personal representative. 316 So. c. trustee of an express trust. Your Construction Center.
ASSETS BACKED CERTIFICATES. Ltd. 8. the real party in interest was an entirely different entity. at 1285-1286. Progressive Express Ins. 928 So. See also Wexler v. (Fla. and that the only way to proceed was to dismiss and bring a new law-suit. 2d DCA 2005) (lack of standing is not a defect that may be cured by the acquisition of standing after the case is filed). 878 So. Philadelphia Indem. Lepore. To demonstrate standing. Plaintiff is a trustee of a Security known as “CERTIFICATEHOLDERS OF BEAR STEARNS ASSETS BACKED SECURITIES I LLC. v Nopal Lines. Progressive Express Insurance held that the failure of a plaintiff to secure an assignment of insurance benefits until after the Complaint was filed was fatal to the cause of action. PLAINTIFF LACKS STANDING: The Plaintiff does not have standing to bring this foreclosure claim. et al. on the date the Complaint was filed. Moreover. 1285 (Fla. McGrath Community Chiropractic. Thus. This was because. (Fla. Id. v. 4th DCA 2004). plaintiff was not the party in interest and lacked standing to bring suit. 2d 1178. would not be saved by “relation back” principles. Kumar Corp. the power to enforce the claim.”
. 3d DCA1985). 7. 2d 1276. Ferreiro v. 3d DCA 2006). standing is not a defect that can be cured after the inception of a law suit and the filing of the complaint because in actions at law the right of the plaintiff to recover must be measured by facts as they exist when the suit was instituted. 913 So. Co. Ins.. Co. (Fla. the mortgage appears to be “securitized. 462 So. the Plaintiff must show that a case or controversy exists between plaintiff and defendant and that such a case or controversy continues from the commencement through the existence of the litigation. 2d 1281. 2d 374. until the assignment took place. FAILURE TO COMPLY WITH APPLICABLE POOLING AND
SERVICING AGREEMENT: a. SERIES 2007-AC1 ” thus.claim in Florida courts rests exclusively in those persons granted by substantive law.
Plaintiff failed to comply with applicable pooling and servicing agreement loan servicing requirements: Plaintiff failed to provide Defendants with legitimate and non predatory access to the debt management and relief that must be made available to borrowers. § 5:105 – 5:118 d.. Plaintiff’s non-compliance with the conditions precedent to foreclosure imposed on the plaintiff pursuant to the applicable pooling and servicing agreement is an actionable event that makes the filing of this foreclosure premature based on a failure of a contractual and/or equitable condition precedent to foreclosure which denies Plaintiff’s ability to carry out this foreclosure.secinfo. g. c. Talcott Franklin & Thomas Nealon III.b. to be filed in pertinent part and which is on file at: www. Alternatively or additionally. Defendants assert that the special default loan servicing requirements contained in the subject pooling and servicing agreement.g. are incorporated into the terms of the mortgage contract between the parties as if written therein word for word and the defendants are entitled to rely upon the servicing terms set out in that agreement. A Pooling and Servicing Agreement requires a mortgage shows an “unbroken chain of assignments” evidencing transfer of title from the originator of the loan to the trust. including this Defendant pursuant to and in accordance with the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission that controls and mortgage loan. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff demonstrates compliance with the foreclosure prevention servicing imposed by the subject pooling and servicing agreement under which the plaintiff owns the subject mortgage loan. f. e. Mortgage and Asset Backed Securities Litigation Handbook.
.com . See e. the defendants are third party beneficiaries of the Plaintiff’s pooling and servicing agreement and entitled to enforce the special default servicing obligations of the plaintiff specified therein. Since (if) the mortgage and the promissory note at issue in the instant case have become part of a securitized trust they are also governed by the terms of the Trust’s Pooling and Servicing Agreement.
§ 494.0079(7). 9. § 494. to act in good faith and to deal fairly with defendants. Stat. refused or neglected to comply with prior to the commencement of this action with the servicing obligations specifically imposed on the plaintiff by the PSA in many particulars. including. Fla. forbearance or amendment of the terms of the subject loan or to in any way exercise the requisite judgment as is reasonably required pursuant to the PSA. Plaintiff’s note is a High-Cost Home Loan as defined by Fla. § 494. c. 3) Plaintiff failed to extend to defendants the opportunity and failed to permit a modification. (4) Negative amortization. (6) Extending credit without regard to the payment ability of the buyer. The Plaintiff failed. Stat. Plaintiff’s failure to meet the servicing obligations imposed by the PSA cause the filing by plaintiff of this foreclosure to be in premature. waiver. (2) Default interest rate. b. i. Stat. VIOLATION OF FLORIDA HOMESTEAD PROTECTION LAWS:
. accordance with the customary an usual standards of practice of mortgage lenders and servicers. Plaintiff did not provide Defendant the 45-day pre-suit notice of the Right to Reinstate. and (13) Late payment fees.00791: (1) Prepayment penalties.h. (3) Balloon payments. Plaintiff’s note is in violation of the Florida Fair Lending Act because it Violates the following sections of the Florida Fair Lending Act. required by Fla.00794. FAILURE TO COMPLY WITH FLORIDA’S FAIR LENDING ACT:
a. 10. but not limited to: 1) 2) Plaintiff failed to service and administer the subject mortgage loan Plaintiff failed to service and administer the subject loan in in compliance with all applicable federal state and local laws. in bad faith and a breach by plaintiff of its obligation to defendants implied in the mortgage contract and as specified in writing in the PSA.
including the Plaintiff.S.C. Florida Constitution.
The Defendant. 1701x(c)(5). 12 U. Article X SECTION 4. 1701x(c)(5) which requires all private lenders servicing non-federally insured home loans. 3. was married at the time this home was
purchased and the mortgage was signed. affords
. c. including this separate Defendant. 5. Plaintiff.S.
COUNTERCLAIMS: COUNT I: DECLARATORY AND INJUNCTIVE RELIEF 1.C. 4.S. to advise borrowers. Plaintiff failed to provide Defendants with a Notice of Default and Intent to Accelerate as required by and/or that complies with Paragraph 22 of the subject mortgage. b. Plaintiff failed to provide separate Defendants with legitimate and non predatory access to the debt management and relief that must be made available to borrowers . Department of Housing and Urban Development. 2. Plaintiff’s non-compliance with the conditions precedent to foreclosure imposed on the Plaintiff is an actionable event that makes the filing of this foreclosure premature based on a failure of a contractual and/or equitable This is an action for declaratory and injunctive relief against the
. 6. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff demonstrates compliance with 12 U. Plaintiff failed to comply with the foreclosure prevention loan servicing requirement imposed on Plaintiff pursuant to the National Housing Act.a. The Defendant’s spouse did not sign the mortgage. of any home ownership counseling Plaintiff offers together with information about counseling offered by the U. protection to this property and thus it is exempt from sale or judgment.
14. 10. all of which constitutes irreparable harm to Defendants for the purpose of injunctive relief. As a proximate result of the Plaintiff’s unlawful actions set forth herein. The Plaintiff has no right to pursue this foreclosure because the Plaintiff has failed to provide servicing of this residential mortgage loan in accordance with the controlling servicing requirements prior to filing this foreclosure action. which right is being denied to them by the Plaintiff. Defendants are in doubt regarding their rights and status as borrowers under the National Housing Act. Defendants are having their credit slandered and negatively affected. 13. being forced to defend the same and they are being charged illegal predatory court costs and related fees. 12. 8. Defendants continue to suffer the irreparable harm described above for which monetary compensation is inadequate. Defendants have a right to receive foreclosure prevention loan servicing from the Plaintiff before the commencement or initiation of this foreclosure action. Defendants are being denied and deprived by Plaintiff of their right to access the required troubled mortgage loan servicing imposed on the plaintiff and applicable to the subject mortgage loan by the National Housing Act. Defendants are being illegally subjected by the Plaintiff to this foreclosure action.condition precedent to foreclosure which denies Plaintiff’s ability to carry out this foreclosure.
. 7. There is a substantial likelihood that Defendants will prevail on the merits of their counterclaims. 9. and attorney’s fees. 15. These acts were wrongful and predatory acts by the Plaintiff and were intentional and deceptive. Defendants have a right to access the foreclosure prevention servicing prescribed by the National Housing Act. Defendants are now subject to this foreclosure action by reason of the above described illegal acts and omissions of the Plaintiff. 11.
have sustained economic damages for which the Defendants are entitled to compensation from the Plaintiff.72(9) in that the Plaintiff is claiming. 559.715. and were intentional and deceptive. paragraphs 2 through 15.55(1).S. Section 559. These acts were wrongful and predatory acts by the plaintiff. S. 19. Section 559. 16.77. COUNT II: FLORIDA CONSUMER COLLECTION PRACTICES ACT Defendants reassert and reallege. The Mortgage and/or Promissory Note in this case was transferred / assigned and Plaintiff did not provide Defendant(s) proper written notice of same.S. inclusive as set out in Count I of these counterclaims. Plaintiff’s collection activities described herein violated F.S. Plaintiff has failed to comply with F. the debtor must be given written notice of such assignment within 30 days after the assignment.72(9) as set out below and Defendants. § 559. 18. enter a judgment pursuant to Fla. attempting and threatening to collect and enforce this consumer mortgage debt by this foreclosure action when the Plaintiff knows that the right to pursue foreclosure does not exist. which states that if consumer debt is assigned. as their Statement of Facts. Defendants request the Court dismiss the Plaintiff’s complaint with prejudice. Plaintiff has engaged in consumer collection conduct which amounts to a violation of F.S.
. 17. Stat. Section 559. for attorney’s fees and for all other relief to which Defendant proves themselves entitled. pursuant to F. Defendants are consumers and the obligation between the parties which is the debt owned pursuant to the subject note and mortgage is a consumer debt as defined in F.WHEREFORE. 20. 86 declaring that the Plaintiff is legally obligated to provide the Defendants with access to the special troubled loan servicing prescribed by the National Housing Act and enjoining the Plaintiff from charging foreclosure fees and costs and from commencing or pursuing this foreclosure until such servicing is provided to this Defendant. as a proximate result thereof.
25. 23. forced defendants into deepening indebtedness and then failed to meet the contractual and statutory conditions precedent before filing this action to collect this consumer debt. 26. attempt. 12 U. As a result of the Plaintiff’s failure to properly service this mortgage loan before filing this foreclosure action. and threaten to enforce this mortgage debt through acceleration and foreclosure when the Plaintiff knows that such conduct is in bad faith because the Plaintiff has charged and collected money from defendants that they did not owe.S. and predatory lending fees and charges all of which are not authorized by or in conformity with the terms of the subject note and mortgage. broker price opinions. title search expenses. 24. appraisal fees. These foreclosure prevention loan servicing obligations are imposed on the Plaintiff pursuant to the National Housing Act.21. Defendants have been damaged and have had to retain counsel to bring this action on their behalf.
. property inspection fees. Section 1710(a) [Act]. and other charges and advances. filing fees. legal fees. attempting and threatening to collect fees and charges including. 22. late charges. Plaintiff continues to claim. and seek to recover attorney’s fees from the Plaintiff pursuant to F. Plaintiff wrongfully added and continues to unilaterally add these illegal charges to the balance Plaintiff claims is due and owing under the subject note and mortgage. 27.C. Defendants have been damaged and Defendants seek to recover their actual or statutory damages from the Plaintiff under F.77(2).77. but not limited to. the reason the Plaintiff does not have a legal right to pursue this foreclosure is because the Plaintiff has failed to first comply with the foreclosure prevention loan servicing obligations imposed on Plaintiff prescribed by the National Housing Act.S. Additionally. As a result of the Plaintiff’s failure to properly service this mortgage loan before filing this foreclosure action. §559. foreclosure costs. 559.S. The Plaintiff is claiming. attorney fees.
inclusive as set out in Count I of these counterclaims.202(1) and (2). Defendant was a “consumer” as defined by §501. Fla. deceptive. 32. or unfair acts or practices in the conduct of any trade or commerce.
. The provisions of the Act are to be liberally construed to promote the following policies: (1) To simplify. or unconscionable. deceptive. unfair methods of competition and unconscionable.203 (7).WHEREFORE.. or unconscionable acts or practices. COUNT III: FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT Defendants reassert and reallege. regulation. 28. Fla.203 (8). clarify. A violation of the Act may be based on “[a]ny law. At all times relevant hereto. statute. CHASE HOME FINANCE LLC. or unfair. paragraphs 2 through 15. for an award of damages in defendants’ favor and against the Plaintiff for their actual or statutory damages whichever is greater and for their attorney’s fees and costs and for all other relief to which this Court finds Defendants entitled. (hereinafter “the Act”). Stat. This is an action for injunctive and declaratory relief and for damages pursuant to the Florida Deceptive and Unfair Trade Practices Act. rule. as their Statement of Facts. and modernize the law governing consumer protection. et seq. Stat. Fla. 30. §501.” See §501. At all times relevant hereto. was engaged in “trade or commerce” as defined by §501. and unfair trade practices.203 (3)(c). Florida Statutes §501. (2) To protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition. 31. Fla. deceptive. or ordinance which proscribes unfair methods of competition. Stat. 29. Defendants demand the Plaintiff’s complaint be dismissed with prejudice. Stat.201.
Specifically.. and declare that CHASE
.33.211(1) Fla. CHASE HOME FINANCE LLC. Defendants request this Honorable Court enter a judgment against CHASE HOME FINANCE LLC. Fla. unfair and deceptive actions and practices.’s practices to be in violation of the Act as provided by the Act §501. 35. Counsel will incur costs and attorney’s fees as a result of the representation of Defendant. for violations of the Act. but not limited to. Defendant reserves the right to amend this complaint to add a prayer for punitive damages upon a showing by evidence in the record providing a basis for recovery of such damages. 34.72 (2002).. Stat. filing a foreclosure action against Defendants without having legal standing to do so and failing to provide Defendants with the pre-foreclosure loss mitigation opportunities required by their mortgage contract and federal law as more particularly stated in Paragraphs 2 through 15 above adding a layer of foreclosure related fees and costs which should not have been incurred without first providing Defendant with the pre-foreclosure options set out in the federal laws referenced herein and required by the subject mortgage. pursuant to the Act as follows: A.. Stat. Defendant has been damaged. WHEREFORE. Defendant has been threatened with the loss of her homestead and the equity therein because she was not given the opportunity to resolve the default before foreclosure was instituted and an additional layer of foreclosure fees and costs were added to the delinquency and reinstatement balance.. 36. Declare CHASE HOME FINANCE LLC.. Defendant has been required to retain the services of the undersigned counsel to pursue her claims against CHASE HOME FINANCE LLC. Pursuant to §768.has violated the Act by engaging in unfair and deceptive acts and practices including. As a direct result of CHASE HOME FINANCE LLC’s.
LLC.HOME FINANCE LLC.2105 (1) Fla. Award Defendant actual damages as provided by §501. Stat. .. and enjoin CHASE HOME FINANCE LLC. FBN 130435
. Award attorney’s fees and costs to Defendant’s counsel pursuant to §501. DEMAND FOR TRIAL BY JURY Defendants hereby demands trial by jury. and E. as this Court deems equitable. C. Suite #202 Plantation.211(2) Fla. Enjoin CHASE HOME FINANCE LLC.. D. FL 33317 Telephone: (954) 523-4357 Facsimile: (954) 581-2786 By:______________________________ MATIS H. Grant such other and further relief. must provide Defendant with access to the special servicing provided in the applicable federal regulations. Attorneys for Defendant 377 North State Road 7.
CERTIFICATE OF SERVICE
LOAN LAWYERS. ESQ. ABRAVANEL. from charging foreclosure fees and costs and from commencing or pursuing this foreclosure until such servicing is provided. B.211(1) Fla. Stat. from engaging in deceptive and unfair trade practices as provided by §501. Stat.