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IN THE CIRCUIT COURT OF THE aoth JUDICIAL CIRCl.Jtr IN AND FOR COLLIER COUN1Y, FLORIDA \
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DEUTSCHE BANKNATIONALTRUST COMPANY,AS TRUSTEE OF THE INDYMAC INDX MORTGAGE TRUST 2007-FLX1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007FLX-1, UNDER THE POOLING AND SERVICINGAGREEMENT, DATEDJANUARY1, 2007 Plaintiff, vs. MARYSUPPLEE, et al. Defendant(s).

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CASENO. 08-7903-CA

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DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES The Defendant, MARYSUPPLEE,by and through the undersigned counsel, answers Plaintiff's complaint herein as follows:
1.

Defendant denies the allegations in paragraph 1. Defendant denies the allegations in paragraph 2 insofar as Plaintiff has failed

2.

to invoke the subject matter jurisdiction of the Court. 3. 4. Defendant admits paragraph 3. Defendant admits only that on September 26, 2006, Defendant Mary Supplee

executed and delivered a promissory note and a mortgage securing payment of the note. Defendant denies the remainder of paragraph 4. 5. Defendant admits only that the mortgage was recorded in the Official Records

Book 4117 at page 1464 of the Public Records of Collier County, Florida, and that Defendant owned and possessed the property described therein at the time. Defendant denies the remainder of the allegations in paragraph 5. 6. Defendant denies the allegations in paragraph 6.

7. 8. 9.
10.

Defendant denies the allegations in paragraph 7. Defendant denies the allegations in paragraph 8. Defendant denies the allegations in paragraph 9. Defendant denies the allegations in paragraph 10. Defendant denies the allegations in paragraph 11. Defendant denies the allegations in paragraph 12. Defendant denies the allegations in paragraph 13. Defendant denies the allegations in paragraph 14. Defendant admits the allegations in paragraph 15 only insofar as Defendant

11.

12.

13. 14. 15.

owns the real property referenced on the Subject Mortgage. Defendant denies the remainder of the allegations in paragraph 15. 16. 16. 17. 18. 19. contractual paragraph 19.
20.

Defendant admits the allegations in paragraph 16 only insofar as Defendant is

the maker of the Subject Note. Defendant denies the remainder of the allegations in paragraph

Defendant admits the allegations in paragraph 17. Defendant denies the allegations in paragraph 18. Defendant relationship is without sufficient knowledge to form an opinion as to any

Plaintiff has with its counsel and therefore denies the allegations in

Paragraph 20 is not an allegation; Defendant accordingly admits or denies as

plead above.

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21.

Defendant is without sufficient knowledge sufficient to form an opinion as to
21 and

the allegations in paragraph
22.

therefore denies same.
22

Defendant denies the allegations in Paragraph

insofar as there are no

unknown parties that might have claim in Defendant's real property by virtue of possession or tenancy.
23.

Paragraph

20

is not an allegation; Defendant accordingly admits or denies as

pled above. 24.
25. 26.

Defendant denies the allegations in paragraph 24. Defendant denies the allegations in paragraph 25. Defendant is without sufficient knowledge sufficient to form an opinion as to

the allegations in paragraph 26 and therefore denies same.
27. 28. 29.

Defendant denies the allegations in paragraph 27. Defendant denies the allegations in paragraph 28. Defendant is without sufficient knowledge sufficient to form an opinion as to

the allegations in paragraph 29 and therefore denies same.
30.

Defendant is without sufficient knowledge sufficient to form an opinion as to
30 and

the allegations in paragraph
31.

therefore denies same.

Defendant denies each and every allegation in the complaint, not herein

admitted, controverted or specifically denied.
32.

Defendant denies that Plaintiff has stated a cause of action for foreclosure

because plaintiff is 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. Defendant demands strict proof of the validity of any mortgage and/or promissory note allegedly executed by Defendant,

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along with all subsequent re-recordings, modifications, transfers and/or assignments thereof. Defendant demands strict proof of ownership and possession by any alleged Mortgagee and/or Payee of any mortgage and/or promissory note allegedly executed by Defendant, and Defendant demands strict proof of verification of all alleged signatures and endorsements on all documents that Plaintiff claims its rights flow from.
AFFIRMATIVE DEFENSES

GENERALSTATEMENTOF FACTS 33. On September 26, 2006, Defendant MARY SUPPLEE ("DEFENDANT")

executed an adjustable rate promissory note in the amount of $289,000 (the "Subject Note"), and a mortgage instrument ("Subject Mortgage") securing payment on the Subject Note with an interest in her homesteaded real property located at 155 1st Street, Bonita Springs, FL 34134 (the "Subject Property"). 34. The Subject Mortgage identifies the "Lender" as INDYMACBANK,F.S.B. and

the Mortgagee as MORTGAGEELECTRONICREGISTRATIONSYSTEMS,INC. ("MERS"). 35. The Subject Note provides that the Payee is the "Lender", and identifies the

Lender as INDYMACBANK,F.S.B. (the "LENDER"). 36. On February
11,

2010, Plaintiff, Deutsche bank National Trust Company, as

Trustee of the Indymac INDX Mortgage Trust 2007-flx1, mortgage pass-through certificates, series 2007-flx-1, under the pooling and servicing agreement, dated january 1,2007 (hereinafter "PLAINTIFF"), filed a complaint to foreclose the Subject Mortgage and to re-establish a lost Note. 37. The securitization trust, to which the Subject Mortgage and Subject Note

allegedly belong (i.e., the Indymac INDX Mortgage Loan Trust 2007-FLX1) shall be referred to herein as the "SUBJECTTRUST". First Affirmative Defense Plaintiff cannot produce the original promissory note 38. In order to maintain a mortgage foreclosure, PLAINTIFF must either present

the original promissory note or give a satisfactory explanation for its failure to do so. §
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90.593(i), Fla. Stat. (2007); W.H. Downing v. First Nat'l Bank of Lake City, 81 So.ad 486 (Fla. 1955). A limited exception applies for lost, destroyed, or stolen instruments, that "the person was in possession of the instrument where it is shown and entitled to enforce it when loss of

possession occurred." § 673.3091, Fla. Stat. (2007). PLAINTIFF has not produced the original note nor sought to reestablish it. On information and belief, PLAINTIFF cannot prove the terms of the instrument pay the instrument nor PLAINTIFF's right to enforce the instrument. The Court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to is adequately protected against loss that might occur by reason of a claim by Fla. Stat. 673.3091(2). On information and belief, another person to enforce the instrument.

DEFENDANT specifically denies all necessary terms of the Note are provided in any "Note" PLAINTIFF may produce and in the photocopied Complaint. Necessary indorsements Subject Mortgage and Note attached to the terms and conditions are missing; as such, essential

precedent are not provided by the PLAINTIFF. On information and belief, DEFENDANT denies the authenticity (2008). of all signatures on the Subject Mortgage and Note, other than her own, and demands strict proof thereof, by clear and convincing evidence pursuant to §673.3081, Fla. Stat.

Second Affirmative Defense Plaintifflacks standing, is not the real party in interest, and hasfailed to plead a cause of action under Fla. R. Civ. P. 1.110(b)
39. PLAINTIFF is neither the original Obligee identified in the Subject Note nor PLAINTIFF has failed to allege ultimate facts as to how or why it came

the original mortgagee.

to be the owner and holder of the Subject Note and Mortgage. Further, PLAINTIFF fails to allege any ultimate facts whatsoever placing it within the chain of ownership of the Subject Note and Mortgage. Therefore, PLAINTIFF has failed to plead a cause of action under Fla. R. Civ. P. 1.110(b). On information and belief, the Pooling Service Agreement of the INDYMAC INDX MORTGAGE LOAN TRUST 2007-FLX1 contains no indication that the Subject Note was ever securitized thereby, or included in, the Subject Trust. PLAINTIFF is required to provide support for its contention that said note is within the trust. The Pooling and Servicing Agreement described in further detail in DEFENDANT's Tenth Affirmative Defense - clearly defines the required procedures for the preservation of the Subject Note and Subject Mortgage. PLAINTIFF has failed to allege facts to show that it ever collected the Subject Note and Mortgage from the Custodian of the trust, when it was collected, in what manner it was collected and where it was secured prior to its loss. If the Subject Note and Mortgage were never part of the pooled res and,

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therefore not trust property, PLAINTIFFis acting as a trustee on behalf of a trust that never had ownership of the Subject Note and Mortgage and therefore lacks standing to sue as a trustee. 40. In the alternative, if the loan and supporting loan portfolio was in fact

deposited into the trust res, PLAINTIFF has then failed to provide proof of transfer and assignment of the Subject Note and Mortgage to the Depositor for the trust, INDYMACMBS, INC., and from Depositor to PLAINTIFF. As such, PLAINTIFF has failed to show standing to initiate this action. Third Affirmative Defense
Failure to State a Cause of Action Plaintiff is not a "Holder" of the Subject Note

41.

The Complaint states: "The Plaintiff is the owner and holder of the Note and

Mortgage or is the party entitled to enforce the subject Note within the meaning of Chapter 673 of the Florida Statutes." (Emphasis added). In Florida, the prosecution of a residential mortgage foreclosure action must be by the owner and holder of the mortgage and the note. PLAINTIFF is not entitled to maintain an action if it does not own and hold the Note which is purportedly secured by the subject Mortgage.' Your Construction Center, Inc. v, Gross, 316 So. zd 596 (Fla. 4th DCA1975) ("when plaintiff files his complaint, he must necessarily allege he is the owner and holder of the note and mortgage in question"); BAC Funding Consortium Inc. v.
Jean-Jacques,

28 SO.3d 936 (Fla. 2nd DCA 2010) ("...Bank was required to establish, through

admissible evidence, that it held the note and mortgage and so had standing to foreclose the mortgage before it would be entitled to summary judgment in its favor."). 42. However, the Complaint alleges that the Subject Note is "lost, stolen, or

destroyed" and that PLAINTIFF does not have possession of the Subject Note. Section 671.201(21)(a), Fla. Stat., defines "Holder" as "The person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession." Since the Complaint admits that PLAINTIFF does not have possession of the Subject Note, PLAINTIFF cannot be the "holder" of the Subject Note, and the ultimate facts as

1 If pled and proved, some courts recognize that an agent might also have standing and the capacity to institute a foreclosure on behalf of the owner of the note. Mortgage EIectronic Registration Systems, Inc. v. Revoredo (955 So.2d 33 Fla.3rd DCA 2007); Mortgage EIectronic Registration Systems, Inc. v. Azize (965 So.2d 151 Fla.2nd DCA 2007).

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pled are inconsistent with PLAINTIFF's bare legal conclusion that it is the "owner and holder" of the Subject Note. Therefore,the PlAINTIFF has failed to sufficiently plead the ultimate facts as required by Florida law, and the Complaint should be dismissed. Fourth Affirmative Defense
Failure to State a Cause of Action Plaintiff is not entitled to enforce the Subject Note under Chapter 673, Fla. Stat.

43.

PLAINTIFF alleges that it is "the party entitled to enforce the subject Note

consistent with Chapter 673 of the Florida Statutes." See Complaint, '8. Section 673.3011, Fla. Stat., states that a "person entitled to enforce instrument," means: (1) The holder of the instrument; (2) A nonholder in possession of the instrument who has the rights of a holder; or (3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to §673.3091 [lost instrument] or §673.4181(4) [mistake-enforcement of a dishonored instrument]. PLAINTIFF alleges it does not have possession of the Subject Note because it is lost, stolen or destroyed. Therefore PLAINTIFFis not a "holder" or a "nonholder in possession of the instrument." Furthermore, PLAINTIFFdoes not allege the ultimate facts that bring it within the confines of subsection (3) [§ 673.3091 enforcement of a lost instrument]; nor does it plead any facts as to §673.4181(4) [mistake-enforcement of a dishonored instrument]. PLAINTIFF fails to plead the ultimate facts required to enforce a promissory note or foreclose a mortgage in the State of Florida. Fifth Affirmative Defense
Plaintiff has failed to plead capacity to sue

44.

As a threshold matter, it is unclear exactly who or what the plaintiff is in this

case because the Complaint does not properly set off or identify PLAINTIFFwithin the body of the Complaint. A plaintiffs name, i.e., DEUTSCHE BANKNATIONALTRUST COMPANY,AS TRUSTEE OF THE INDYMACINDX MORTGAGE TRUST 2007-FLX1, MORTGAGE PASSTHROUGH CERTIFICATES,SERIES 2007-FLX-1, UNDER THE POOUNG AND SERVICING AGREEMENT, DATEDJANUARY1, 2007, is identified in the caption, but nowhere else in any of PLAINTIFF's pleadings is PLAINTIFF's entity status or capacity even pleaded. PLAINTIFF's failure to properly identify itself and thus plead its capacity (i.e., "XYZ, Incorporated is a Delaware registered corporation properly registered as a foreign corporation with the Florida Secretary of State") prohibits PLAINTIFF from asserting that it has established its capacity and prevents DEFENDANT from properly asserting defenses to this action which may prevent
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PLAINTIFF from maintaining this present suit from the outset." 45. provides: (a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued, the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. (Emphasis added) The initial pleading served on behalf of a minor party shall specifically aver the age of the minor party. When a party desires to raise an issue as to the legal existence of any party, the capacity of any party to sue or be sued, or the authority of a party to sue or be sued in a representative capacity, that party shall do so by specific negative averment which shall include such supporting particulars as are peculiarly within the pleader's knowledge. 46. The complaint lacks any allegation of where the SUBJECTTRUSTwas created, Florida Rules of Civil Procedure Rule 1.120(a), Pleading Special Matters,

whether it was and/or is authorized to do business in Florida, or exempt from registration under Florida law and the basis for its authority. No allegation is made that PLAINTIFFregistered as a trust pursuant to Fla. Stat. §660, et. seq. Florida Rule of Civil Procedure 1.120(a) clearly requires that the capacity of both the PLAINTIFF and DEFENDANTbe alleged, "to the extent required to show the jurisdiction of the court". Bythe clear language of the rule, this applies to both PLAINTIFF's status and DEFENDANT'sstatus, i.e. "capacity of a party to sue or be sued", or the "authority of a party to sue or be sued." The Rule also provides the specific procedures that defense counsel must use to challenge the issue of the PLAINTIFF's status, i.e. by specific negative averment. DEFENDANTspecifically asserts that PLAINTIFF has failed to even plead its proper party status and thus PLAINTIFF cannot claim it has properly invoked the jurisdiction of this court within the four corners of the Complaint. 47. In further support for the proposition that every plaintiff must plead its

capacity to sue, its authority to sue and the legal existence of an organization is found in the author's comments to the Rules of Civil Procedure Rule 1.120(a) (2004 Version) which state: "Nevertheless, if a party involved in a suit in other than his individual capacity, the capacity in which he is a party should be indicated in the caption and the pleadings."
The caption - even to the limited extent that it att~ts to identify the Plaintiff - is in error. The actual name of the trust which Plaintiff purports to represent is "IndyMac INDX Mortgage Loan Trust2007-FLX1".
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48.

"Capacity to sue" is an absence of legal disability which would deprive a party

of the right to come into court. 59 Am.Jur.zd Parties §31 (1971). This is in contrast to "standing" which requires an entity have sufficient interest in the outcome of litigation to warrant the court's consideration of its position. Keehn v. Joseph C. Mackey and Co., 420 So.zd 398 (Fla. 4th DCA 1982). The issue of capacity to sue may be raised by motion to dismiss where the defect appears on the face of the complaint. Hershel California Fruit Products Co. v. Hunt Foods, 111 F. Supp. 603 (1975); Klebano v. New York Produce Exchange, 344 F.2d (2nd Cir. 1965). Failure to raise the issue of a PLAINTIFF's capacity by a specific negative averment has been held to be a waiver of that defense. See McDonough Equip. v. Sunset Amoco West, 669 So.zd 300 (Fla. 3rd DCA 1996); Plumbers Loc. U.N. 519, Miami Fla. v. Servo Plbg., 401 F. Supp. 1008 (1975); and see Sun Val. American Land Lease, 927 SO.2d 259 (Fla. ad DCA. 2006). 49. PLAINTIFF has failed to plead or specify in what capacity it brings suit and of the Court and may not pursue this Case No. 08-16936-CI-13 (6th Cir. Ct.,

failed to define or identify nature of its legal entity; thus it has not pled capacity to sue. Without such capacity, PLAINTIFF cannot invoke the jurisdiction litigation. See Wachovia Mortgage v. Anne Mattachiero, December 15, 2009).

Sixth Affirmative Defense
Negative Averment 50. authenticity The purported as to Authenticity copy of the Subject Note attached to PLAINTIFF's Complaint DEFENDANT hereby specifically denies the on the thereof, filed by PLAINTIFF in

bears what appears to be a blank indorsement.

of, and the authority to make, each and every signature and indorsement

Subject Note and Subject Mortgage, allonge or any assignments is no presumption that the indorsement(s)

connection with this case other than that of the Maker, pursuant to Fla. Stat. §673.3081. There of any prior holder(s) of the Subject Note is/are genuine, and PLAINTIFF has the burden of proving the validity of any such indorsements.

Seventh Affirmative Defense Plaintiff is not a Holder in Due Course
51. Upon information and belief, PLAINTIFF is neither a holder in due course nor to Fla. Stat. §673.3021. PLAINTIFF did not PLAINTIFF had express or when it was acquired by

entitled to the rights of such a holder pursuant constructive knowledge

acquire the Subject Note for value or in good faith and/or that the Subject Note was in default

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PLAINTIFF. It is believed that PLAINTIFF is not in possession holder in due course pursuant to Fla. Stat. §673.3051. Eighth Affirmative Defense Subject Note is Non-Negotiable 52.

of the Subject Note.

DEFENDANTis not obliged to pay the instrument unless and until PLAINTIFF proves to be a

In the alternative, DEFENDANT alleges that the Subject Note is not a

negotiable instrument within meaning of Fla. Stat. §673.041 (l)(C) (2006). Specifically,the Subject Note: (1) provides for late fees in Section 7, subsection (A); and (2) is an adjustable rate note, meaning that there is no promise to pay a fixed sum certain. Consequently, the law governing negotiable instruments, as set forth in Fla. Stat. §673 et seq. (2006), does not apply to this Note. See General Motors Acceptance Corp. v. Honest Air Conditioning & Heating, Inc., et .al., 933 So. ad 34 (Fla. ad DCA 2006); Wells Fargo Bank, NA v. Christopher Chesney, et al., Case No. 51-2009-CA-6509-WS/G (6th Jud.Cir.Pasco.Cty. 02/22/2010 Hon. Stanley R. Mills, Judge). Ninth Affirmative Defense Lack of Capacity; Dissolved/Inactive Trust 53.
It is believed that the SUBJECT TRUST is no longer an active trust and/or has

been dissolved. On or about January 17, 2008, the Depositor for the Trust, INDYMACMBS., INC., filed a Form 1Sd-6 Notice of Suspension of Duty to File Reports with the Securities and Exchange Commission. Tenth Affirmative Defense Lack of capacity; mtra Vires Acts in violation of governing trust document 54.
As mentioned herein, PLAINTIFF appears in this case pursuant to a Pooling

and Servicing Agreement (the "Agreement''), the trust instrument that sets forth all of the rights, powers, obligations, limitations and duties of PLAINTIFF. The four corners of the Agreement bind the SUBJECT TRUST to the only actions which can lawfully be taken with respect to the administration of its assets and establish the only mechanism by which this purported Corporate Trust may acquire, transfer, dispose of, or sell any asset. The Agreement is filed of record with the Securities and Exchange Commission ("SEC")and is a matter of public record; it can be found on the SEC's EDGAR ONLINE website at http://www.secinfo.com/dv4at.t4.2.htm.
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55.

The terms of the Agreement are filed under oath with the SEC and the parties

to the Agreement have represented under oath to the SEC and its investors, certificate holders, and counter-parties, that the entire agreement of the entities, parties, agents, servants, with respect to the SUBJECTTRUST are contained within this Agreement and its exhibits. 56. Florida Law, following the Uniform Commercial Code, specifically provides

that the effects of provisions of the code may be varied by agreement. See §671.102 (2)(a), Fla. Stat. In the instant case, the express terms of the Pooling and Servicing Agreement controlling the SUBJECTTRUST, of which the Subject Note and Subject Mortgage are allegedly a part, have varied the manner in which these instruments may be transferred and subsequently enforced. 57. The Subject Note and Subject Mortgage cannot become part of the pool absent

the PLAINTIFF's compliance with the Pooling and Servicing Agreement. The PLAINTIFFhas no right to enforce the Subject Note and Subject Mortgage, as they have not been transferred into the corpus or res of the SUBJECT TRUST and are not part of the SUBJECT TRUST's pool of assets. Additionally, the Pooling and Servicing Agreement alters the method by which the Subject Note may be enforced and renders Fla. Stat. §673, et seq., governing negotiable instruments, inapplicable to the Subject Note. 58. PLAINTIFF acted ultra vires to its powers under the SUBJECT TRUST by

which it acts, and is without authority or capacity to act as to res in the dispute. PLAINTIFF and/or its predecessors in interest to the Subject Mortgage and Subject Note failed to abide by the SUBJECT TRUST's funding and transfer requirements and restrictions in placing these instruments within the corpus or res of the SUBJECT TRUST. PLAINTIFF's claim of power, authority or other standing to pursue this action is an ultra vires act over the res of the SUBJECT TRUST. PLAINTIFF's attempt to receive assignment of the Subject Mortgage and Transfer of the Subject Note is well outside the scope of the SUBJECT TRUST's specific restrictions and is void by reason thereof. Eleventh Affirmative Defense Plaintiff has failed to verify the Complaint 59. Upon information and belief, PLAINTIFF filed the Complaint on February 11,

2010 but failed to verify its Complaint under oath or affirmation, as mandated by Rule 1.110(b) of the Fla. Rules of Civil Procedure, amended by Supreme Court of Florida No. SC09-1460
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(Amendments to the Florida Rules of Civil Procedure, No. SC09-1579), as of February 11,2010 states in pertinent part: "When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement: "Under penalty of perjury, I declare that I have read theforegoing, and the facts alleged therein are true and correct to the best of my knowledge and belief" 60. Additionally, the Complaint does not contain Form 1.942, which is the

affidavit of diligent search and inquiry, as mandated by the cited Florida Supreme Court Administrative Order No. SC09-1460. Fla. R. Civ. Pro. 1.420(b) provides, in pertinent part, that ".... any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court." Thus, any judgment which is not in compliance with the Florida Rules of CivilProcedure is null and void, and any mortgage foreclosure action filed as of February 11.2010 must be verified. The Supreme Court noted that The primary purposes of this amendment are: (1 ) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded "lost note" counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations. In re: Amendments to the Florida Rules of Civil Procedure, No. SC09-1579, pp. 3-4 (Feb. 11,2010). 61. The Florida Supreme Court requirement went into effect on February 11,2010.

See Fla. Sup. Ct. Order SC09-1460 and SC09-1579, p. 9-10. The Florida Supreme Court specifically stated that the "amendments shall become effective immediately upon the release of this opinion." In Re: Amendments to the Florida Rules of Civil Procedure, No. SC09-1460, pp. 9-10 (Fla. Feb. 11, 2010.) PLAINTIFF's Complaint has not been verified pursuant to the amended Rule of Civilprocedure 1.110(b)and is consequently subject to dismissal. Twelfth Affirmative Defense

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Lack of Capacity to Convey (IndyMac)
62. Assignments PLAINTIFF has attached two Assignments of Mortgage to its Complaint. Both were prepared by the law firm of Shapiro
& Fishman,

LLP, Counsel for The second Bank, FSB

PLAINTIFF. The first assignment purports to convey the Subject Mortgage from IndyMac Bank, F.S.B. (Assignor) to IndyMac Federal Bank, FSB (Assignee) on May 8, assignment purports to convey the Subject Mortgage from IndyMac
11, 2009. 2009.

Federal

(Assignor) to PLAINTIFF (Assignee) on May

63.
11, 2008

IndyMac Bank, F.S.B. was closed by the Office of Thrift Supervision on July
Corporation a new institution was chartered under the name of IndyMac

and was placed into receivership under the Federal Deposit Insurance

(FDIC). Immediately thereafter,

Federal Bank, FSB. IndyMac Federal Bank, FSB then acquired virtually all of the assets of the
former IndyMac Bank, F.S.B. IndyMac Federal Bank, FSB was placed into a conservatorship, with the FDIC serving as Conservator. OneWest Bank was created on Mar 19, 2009 solely for the purpose of absorbing the assets of Indymac Federal Bank, FSB from the FDIC. 64. In the assignments attached to the Complaint, PLAINTIFF asserts that

IndyMac Bank, F.S.B. conveyed an interest in the Subject Mortgage over nine months after it had all of its assets seized by the FDIC, and that IndyMac Federal Bank, FSB conveyed an interest in the Subject Mortgage two months after it was required to transfer its assets to a third party. On information and belief, PLAINTIFF's predecessor(s) in interest lacked the legal capacity to execute a valid conveyance of the Subject Mortgage as set forth on the Assignments attached to the Complaint.

Thirteenth Affirmative Defense Lack of Authority to Convey (IndyMac)
65. As stated above, PLAINTIFF asserts that IndyMac Bank, F.S.B. conveyed an

interest in the Subject Mortgage over nine months after it had disposed of all of its assets, and that IndyMac Federal Bank, FSB, two days later, conveyed the interest two months after it had disposed of all of its assets. Finally, Plaintiff asserts that the Subject Mortgage was then assigned to a securitization trust which closed in 66.
2007.

Moreover, both Assignments are also signed by Erica A. Johnson-Seck,

who

purported to be the "Vice President" of (1) the defunct Assignor, IndyMac Bank, F.S.B., and (2)
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the defunct Assignee, IndyMac Federal Bank, FSB. As both entities ceased to exist prior to her corporate tenure, DEFENDANTbelieves that, at the very least, Erica A. Johnson-Seck lacked the authority to convey any interest in the Subject Mortgage as Plaintiff asserts. Fourteenth Affirmative Defense Lack of Candor 67. DEFENDANTbelieves Plaintiff, and other entities not yet joined in this action,
3

have submitted improper documents to this Court. Fifteenth Affirmative Defense Lack of Authority to Convey (MERS) 68. Upon information and belief, LENDERdid not authorize MERS to execute any

assignment of the Subject Mortgage to PLAINTIFF. The Subject Mortgage states that MERS holds only legal title to the interests granted by the Borrower in the security agreement. There is no express grant of any right to MERS to transfer or sell the Subject Mortgage or even to assign its duties as nominee. MERS, as "nominee", is an agent of the principal, for limited purposes, and has only those powers which are conferred to it and authorized by its principal. The burden of proving an agency is on the party who asserts it. PLAINTIFF has submitted no documents which purport to authorize MERS to assign the Subject Mortgage to PLAINTIFF. The existence and scope of an agency relationship are generally questions of fact to be resolved by the jury, unless the evidence is susceptible to only one interpretation. Sixteenth Affirmative Defense Failure to Comply With Applicable Pooling And Servicing Agreement Loan Servicing Requirements 69. Upon information and belief, PLAINTIFFfailed to provide DEFENDANTwith

legitimate and non-predatory access to the debt management and relief that must be made available to borrowers pursuant to and in accordance with the above-referenced Pooling and
MS. Johnson-Seck, in a July 9, 2010 deposition taken in a Palm Beach County Florida foreclosure case, admitted that she executes about 750 mortgage documents a week, without a notary public present; does not spend more than 30 seconds signing each document and does not read the documents before signing them. See Stephanie Armour, "Mistakes Widespread on Foreclosures, Lawyers Say,"USA Today, Sept. 27, 2010; Ariana Eunjung Cha, "OneWest Bank Employee: Not More Than 30 Seconds to Sign Each Forecl.osure Document," Washington Post, Sept. 30, 2010).
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Servicing Agreement that controls and applies to the PLAINTIFF and the Subject Mortgage and Subject Note. PLAINTIFF's non-compliance with the conditions precedent to foreclosure imposed on the PLAINTIFF pursuant to the 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 and bars PLAINTIFFfrom maintaining this foreclosure. The special default loan servicing requirements contained in the Agreement are incorporated into the terms of the Subject Mortgage contract between the parties as if written therein word for word and DEFENDANT is entitled to rely upon the servicing terms set out in the Agreement. Alternatively or additionally, DEFENDANT is a third-party beneficiary of the Agreement and entitled to enforce the special default servicing obligations of PLAINTIFF specified therein. PLAINTIFF cannot legally pursue foreclosure unless and until it demonstrates compliance with the foreclosure prevention servicing imposed by the Agreement which governs the Subject Mortgage and Subject Note and limits the actions of PLAINTIFF. Seventeenth Affirmative Defense Subject Trust not Registered
70.

PLAINTIFF purports to act as a trustee but has not alleged compliance with

Fla. Stat. §660, et. seq., requiring the filing of a Declaration of Trust. Eighteenth .Affirmative Defense Common-Law Trust Business in Violation of Florida Law 71. Upon information and belief, PLAINTIFF is doing business in Florida as an

unregistered trust in violation of Florida law. PLAINTIFF purports to be acting on behalf of the SUBJECT TRUST, which has issued certificates to investors as public securities. These certificates are secured by Florida mortgages, including the Subject Mortgage. Upon information and belief, the SUBJECT TRUST is not an express trust under the Florida Trust Code, Fla. Stat. §736, et seq. Instead, it is a common law declaration of trust under Fla. Stat.
§609, et seq., i.e., an association of two or more persons for the purpose of transacting business

in Florida. Pursuant to Fla. Stat. §609.02, PLAINTIFF,before offering securities in the form of certificates to investors, was required to file with the Secretary of State a true and correct copy of the Declaration of Trust under which the SUBJECT TRUST proposed to conduct its business. Although the SUBJECT TRUST has commenced to transact its business in Florida, upon information and belief, PLAINTIFF has failed to file its Declaration of Trust, has not paid the required $350.00 fee, and has not obtained the required certificate from the Department of
Legal Aid Service of Collier County
Defendant's Answer and Affirmative' DefensesPage 15

State. Accordingly, the PLAINTIFF is not authorized to do business in the State of Florida and thus lacks the standing and capacity to pursue this action. Nineteenth Affirmative Defense
Breach of Implied Covenant of Good Faith and Fair Dealing; Failure of Statutory/Equitable/ Contractual Condition Precedent Home Affordable Modification Program (HAMP)

72.

Upon information and belief, PLAINTIFF's authorized agent is the servicer of

the Subject Mortgage ("SERVICER").Upon information and belief, PLAINTIFF,by and through SERVICER, entered into a "Servicer Participation Agreement" (SPA) with FANNIE MAE (as agent for the United States). Pursuant to the SPA and 12 U.S.C. § 5201 et seq., PLAINTIFF and SERVICER are subject to the U.S. Treasury's modification program guidelines for the Making Home Affordable Program and the Home Affordable Modification Program. The United States Treasury Dept. and other federal agencies established the Home Affordable Modification Program (the "RAMP") as part of the Making Home Affordable Program as authorized and enabled by 12 USC § 5201 et seq. The SPA and the HAMP are incorporated into the terms of the Subject Mortgage contract between the parties as if written therein word for word and DEFENDANTis entitled to rely upon the provisions of the HAMP. Alternatively or additionally, because the Subject Mortgage and Subject Note are serviced by PLAINTIFF's authorized agent SERVICER,DEFENDANTis a third-party beneficiary of the SPA. Upon information and belief, neither PLAINTIFF nor SERVICER have provided DEFENDANT with the loss mitigation and modification opportunities as set forth in the Making Home Affordable Program and required by the SPA. PLAINTIFF cannot legally pursue foreclosure unless and until such time as all loss mitigation and modification opportunities have been fully afforded to DEFENDANTpursuant to the Making Home Affordable Program and imposed on PLAINTIFF and/or SERVICERby the SPA. Twentieth Affirmative Defense
Failure of Statutory Condition Precedent 12 U.S.C. 1701X(C)(s)

73.

Upon information and belief, PLAINTIFF has failed to comply with the

foreclosure prevention loan servicing requirement pursuant to the National Housing Act, 12 U.S.C. 170IX(C)(5),within 45 days of DEFENDANT's alleged failure to make a timely payment. 12 U.S.C. 1701x(c)(5) requires all private lenders servicing non-federally insured home loans (including PLAINTIFF) advise borrowers (including DEFENDANT) of any home ownership

Legal Aid Service of Collier County Defendant's Answer and Affirmative Defenses· Page 16

counseling they offer, together with information about counseling offered by the U.S. Department of Housing and Urban Development ("H.U.D."). H.U.D. has determined that 12 U.S.C. 1701X(c)(s)creates an affirmative legal duty on the part of a plaintiff. PLAINTIFF's noncompliance with the requirements of the law makes the filing of this action premature based on a failure of a statutory condition precedent. PLAINTIFFcannot legally pursue foreclosure unless and until PLAINTIFF demonstrates compliance with 12 U.S.C. 1701X(C)(s). Twenty-First Affirmative Defense
Violation of the Fair Debt Collection Practices Act (Shapiro & Fishman, LLP)

74.

The law firm of Shapiro and Fishman, LLP, Counsel for Plaintiff, is considered a

"Debt Collector" pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq. (the "FDCPA"),and is subject to the requirements and obligations of the FDCPA. The stated purpose of the FDCPA is "to eliminate abusive debt collection practices by debt collectors ... and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. 1692(e). DEFENDANTmailed and faxed a request for verification of the alleged debt to Counsel for Plaintiff pursuant to the FDCPA. 'The debt verification provided by Shapiro & Fishman, LLP failed to comply with the FDCPAin that it did not provide a transaction history for the life of the DEFENDANT's mortgage loan. 'The FDCPA requires that Plaintiff cease all collection efforts, including litigation, until complete verification of the disputed amount of the debt is provided. See 15 U.S.C. 1692(g).As of the filing ofthis answer, Shapiro & Fishman, LLP has not responded to DEFENDANT's notice of the FDCPAviolation and has not complied with the FDCPA,which has unfairly prejudiced DEFENDANT in this action. DEFENDANT is entitled to a complete itemized transaction history under the FDCPA and accordingly reserves her right to pursue counterclaims regarding this matter. Twenty-Second Affirmative Defense
Failure to Provide 30-Day Notice of Assignment .

75.

An

assignee of a mortgage and note must give the debtor written notice of such

assignment within thirty (30) days after the assignment. See §ss9.71s, Fla. Stat. Upon information and belief, PLAINTIFFfailed to comply with this notice of assignment. Twenty-Third Affirmative Defense
Failure to Post Nonresident Cost Bond

76.

If PLAINTIFF seeks to proceed as a foreign corporation which is not doing
Legal Aid Service of Collier County Defendant's Answer and Mfirmative Defenses- Page 17

business in Florida, it must file a non-resident cost bond pursuant to Fla. Stat. §s7.011. DEFENDANThereby notifies PLAINTIFFthat a non-resident cost bond is required and has not been filed within 30 days of commencement of this action. After the expiration of 20 days from the date of this notice, this additional ground for dismissal will become ripe for argument and ruling. Twenty-Fourth Affirmative Defense Failure to Include Necessary Party(ies) 77. The Subject Mortgage provides that the Subject Note or a partial interest in the

Note can be sold one or more times. Upon information and belief, the Subject Note was bundled with other notes pursuant to the SUBJECTTRUST, a Real Estate Mortgage Investment Conduit ("REMIC"). The Subject Mortgage and Subject Note, if they were indeed delivered and assigned to PLAINTIFF, were done so for the benefit of certificate holders of the SUBJECTTRUSTwhich PLAINTIFF purports to represent as Trustee. As partial owners of the payments on the Subject Note, these certificate holders and all other intermediate assignees are necessary parties to this action. 78. Additionally, a review of the named Mortgagee's website, available online at

https:JJwww.mers-servicerid.orgJsisJ (the MERS-Servicer Identification System), identifies that Goldman Sachs Mortgage Company may have some interest in the Subject Mortgage andJ or Note as an "Investor", and that the Servicer of the Subject Mortgage is OneWest Bank, FSB. Twenty-Fifth Affirmative Defense Violation ofthe Truth-In-Lending-Act Section 79.

131(g)

Section 131(g)of the Truth in Lending Act (15 USC § 1641) ("TILA") requires

that the new owner or assignee of a mortgage loan must notify the borrower in writing within thirty (30) days after the mortgage loan is sold or otherwise transferred. The notice must include (1) The assignee's identity, address and phone number; (2) The date of transfer; (3) Contact information for an agent or party having authority to act on behalf of the assignee; (4) The location of the place where transfer of ownership of the debt is recorded; and (5) Any other relevant information regarding the assignee. Upon information and belief, PLAINTIFF has not provided the foregoing notice to DEFENDANT.DEFENDANTreserves the right to pursue this as an additional cause of action against PLAINTIFFpending the completion of discovery.

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Twenty-Sixth Affirmative Defense Failure to Properly Allege a Cause of Action Pursuant to Fla. Stat.
80. to reestablish Furthermore, Mortgage.

§Z1.011

The complaint fails to provide the original Subject Mortgage and does not seek it as required by Fla. Stat. §71.0n(s). PLAINTIFF has not alleged the time and PLAINTIFF fails to allege any showing that it ever possessed the original Subject

manner of the loss or destruction, or even if the original Subject Mortgage was lost or destroyed.

Twenty-Seventh Affirmative Defense Lack of Consideration
81. consideration On information and belief, the named Mortgagee, MERS, gave no

to the DEFENDANT in exchange for the grant of the Subject Mortgage.

Twenty-Eighth Affirmative Defense Notice of Infirmities
82. and/or On information and belief, if the Subject Note was ever lawfully transferred an unauthorized signature and/or to

PLAINTIFF, then PLAINTIFF accepted the Subject Note with knowledge that it was overdue that it contained that it had been altered. See §673.3021, Fla. Stat.

Twenty-Ninth Affirmative Defense Improper Charges Added to Balance
83. Upon information and belief, PLAINTIFF has added improper charges to the and equitable conditions precedent,

alleged debt owed by DEFENDANT. On information and belief, PLAINTIFF's lack of standing, lack of capacity, failure to meet all statutory, contractual, improper servicing, and ultra vires acts, inter alia, in these proceedings have added unlawful charges and fees to the alleged debt owed by DEFENDANT including but not limited to a title search expense, advanced Ad Valorem taxes, premiums on insurance, improper attorneys fees and other costs. Moreover, Shapiro and Fishman, charges. LLP's noncompliance with the Fair Debt Collection Practices Act is impairing DEFENDANT's ability to more thoroughly examine these

Thirtieth Affirmative Defense No Right to Accelerate
Legal Aid Service of Collier County Defendant's Answer and Affirmative Defenses· Page 19

84.

Paragraph

22

of the Subject Mortgage requires Notice of Acceleration be given

by the "Lender", as defined therein, at least 30 days prior to the initiation of legal proceedings. Additionally, the notice must sent by first class mail to the DEFENDANT.On information and belief, PLAINTIFF failed to give the requisite notification before filing suit. The notice of acceleration is both a covenant and condition precedent to filing this action, and PLAINTIFF's omission accordingly constitutes a failure of both. PLAINTIFF may not commence nor pursue this action until it complies with this condition precedent. Thirty-First Affirmative Defense No Legal Damages 85. Upon information and belief, the Subject Note has been paid in whole or in

part by one or more undisclosed third partyfies) who, prior to or contemporaneously with the closing onthe "loan", paid LENDER in exchange for certain unrecorded rights to the revenues arising out of the loan documents. As such, PLAINTIFF has no financial interest in the Subject Note or Subject Mortgage. Upon information and belief, the revenue stream deriving from the Subject Note and Subject Mortgage was impaired or impeded upon one or more assignments of the instruments to third parties and parsing of obligations as part of the securitization process, some of whom were joined as co-obligors and co-obligees in connection with the closing. To the extent that PLAINTIFF has been paid on the underlying obligation or has no legal interest therein or in the Subject Note or Subject Mortgage, PLAINTIFFhas suffered no legal damages. Thirty-Second Affirmative Defense Collateral Source Payments I Setoff 86. DEFENDANT demands credit for, and application of, any and all collateral

source payments PLAINTIFF or beneficiaries of the SUBJECT TRUST have received or will be entitled to receive from any source whatsoever as a result of the default claimed, including credit default insurance, credit default swaps, whether funded directly by insurance and/or indemnity agreement or indirectly paid or furnished by means of federal assistance (i.e. TARP funds, HAMP Servicer Incentives) on an apportioned basis for loans or groups of loans to which the Subject Mortgage and Subject Note is claimed. Thirty-Third Affirmative Defense Improper Attorney's Fees

Legal Aid Service of Collier County Defendant's Answer and Affirmative Defenses- Page 20

87.

PLAINTIFF is not entitled to attorney's fees due to the nature of the

relationship between PLAINTIFF, its agents, and the subject matter of this action. Thirty-Fourth Affirmative Defense Principal Place of Trust Administration 88. Upon information and belief, the State of Florida is not PLAINTIFF's Principal

Place of Trust Administration. A trustee is under a continuing duty to administer the trust at a place appropriate to its purposes and its administration. Although PLAINTIFF may transfer the SUBJECT TRUSTs principal place of administration to the State of Florida, it must first comply with the procedure(s) outlined under the Florida Trust Code. See §736.0108, Fla. Stat. Thirty-Fifth Affirmative Defense
Failure of Covenant of Good Faith and Fair Dealing: Unfair and Unacceptable Loan Servicing

89.

Upon information and belief, PLAINTIFF has failed to provide DEFENDANT

with legitimate and non-predatory access to the debt management and relief that must be made available to borrowers, including DEFENDANT.Such relief must include, among others things, temporary indulgence, a liquidating plan, and special forbearance designed to avoid residential foreclosure of single family loans secured by and/or underwritten by FANNIE MAE. Upon further information and belief, PLAINTIFF failed its obligation to DEFENDANT to pursue effective foreclosure prevention strategies and did not evaluate the particular circumstances surrounding DEFENDANT's alleged default; failed to evaluate DEFENDANT or the Subject Property; failed to determine DEFENDANT'scapacity to pay the monthly amount or a modified payment amount; failed to ascertain the reason for DEFENDANT'salleged default, or the extent of DEFENDANT's interest in keeping the Subject Property. Upon information and belief, PLAINTIFF failed to comply with a FANNIE MAE repayment plan, modification plan, or special forbearance workout programs. As such, PLAINTIFF denied DEFENDANTthe required access to explore alternatives to avoid foreclosure. PLAINTIFF has failed to act in good faith or to deal fairly with DEFENDANTby failing to follow the applicable standards of residential single family mortgage lending and servicing as described in these affirmative defenses thereby denying DEFENDANT access to the residential mortgage servicing protocols applicable to the Subject Note and Subject Mortgage. Thirty-Sixth Affirmative Defense
Legal Aid Service of Collier County Defendant's Answer and Affirmative Defenses· Page 21

Proximate cause 90.·

While denying that PLAINTIFF has suffered any injuries and/or damages,

DEFENDANT affirmatively states that the sole proximate cause or, in the alternative, the contributing proximate causes of the injuries and damages claimed by PLAINTIFF, if there are any, were the actions and omissions of persons or companies other than DEFENDANTand for which DEFENDANTcannot be held liable. Thirty-Seventh Affirmative Defense Unclean Hands 91. DEFENDANT asserts and alleges all other facts referenced in the previous

affirmative defenses and that PLAINTIFF comes to this Court with unclean hands. Historically, equitable courts developed to provide a forum of justice for litigants when law courts, which contained rigid principles and restrictive technicalities, were deficient. As such, equity courts were created to do justice between the litigants. Therefore, "a court of equity is a court of conscience; it should not be shackled by rigid rules of procedure and thereby preclude justice being administered according to good conscience." With respect to foreclosures, the general rule in Florida is that the foreclosure must not be unconscionable or inequitable. As a matter of equity, this Honorable Court should refuse to foreclose the Subject Mortgage because acceleration of the Subject Note would be inequitable, unjust, and the circumstances of this case render acceleration unconscionable. This honorable Court should refuse the acceleration and deny foreclosure because, among other things, PLAINTIFF has waived the right to acceleration or is estopped from doing so because of misleading conduct and unfulfilled contractual and equitable conditions precedent. DEFENDANTRESERVESTHE RIGHT TO FURTHER PLEADDEFENSES OF WHICH IT BECOMESAWARETHROUGH DISCOVERYOR OTHERWISE.

Legal Aid Service of Collier County Defendant's Answer and Affirmative Defenses> Page 22

WHEREFORE. DEFENDANT, MARY SUPPLEE, respectfully requests this honorable
Court to enter judgment against PLAINTIFF, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE OF THE INDYMAC INDX MORTGAGE TRUST 2007-FLX1, 2007-FLX-1, UNDER THE POOUNG

MORTGAGE PASS-THROUGH CERTIFICATES,SERIES

AND SERVICING AGREEMENT, DATED JANUARY 1, 2007; deny PLAINTIFF's requested relief of foreclosure; award attorneys fees pursuant to the terms of the Subject Mortgage and Subject Note PLAINTIFF is seeking to enforce and Fla. Stat. §§57.105(7) and Fla. Stat. §59-46.; and send PLAINTIFF forthwith without day.

Respectfully Submitted, LEGAL AID SERVICE OF COLUER COUNTY Counsel for Defendant Mary Supplee 4125 East Tamiami Trail Naples, FL 34112 Tel: 2 - 775-4555 • F . 239-775-3887

Jos

h Klein, Esq.

Fla. Bar 0050943 jklein@legalaid.org

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been sent via U.S. Mail and FAX on this

21 sJ-

day of O(1_.CQJrltxLr

,2010 to SHAPIRO & FISHMAN, LLP,

Attorneys for Plaintiff, 4630 Woodland Corporate Blvd. Suite 100, Tampa, FL 33614.

~:~ Joseph Klein, Esq.
Fla. Bar 0050943

Legal Aid Service of Collier County Defendant's Answer and Mfinnative Defenses· Page 23

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