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IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO DEUTSCHE BANK NATIONAL TRUST ) COMPANY AS TRUSTEE FOR ) SOUNDVIEW HOME LOAN TRUST ) 2005-4, ASSET-BACKE:P CERTIFICATES,) SERIES 2005-4, C/O CHASE MANHATTAN) MORTGAGE COMPANY ) Plaintiff,
) ) ) ) ) ) ) )

JUDGE COSGROVE

v.
GLENN E. HOLDEN, et al., Defendants.

DEFENDANTS GLENN AND ANN HOLDEN'S ANSWER AND COUNTERCLAIMS


JURY DEMAND ENDORSED HEREON

NOW COMES Defendants Glenn and Ann Holden, by and through counsel, and for her answer to plaintiffs Complaint states as follows: BACKGROUND 1. Denied. 2. Denies that the note is secured by a mortgage and denies that the mortgage is a valid first lien on the property. 3. Admits that the mortgage was filed for record, but denies that Plaintiff has complied with all conditions precedent, denies that the mortgage was ever validly assigned to the Plaintiff and denies that Plaintiff is entitled to have the mortgage foreclosed. 4. Denied. 5. Denied for lack of knowledge as to whether the mortgage is a valid lien on the property. 6. Denies that all conditions precedent were complied with. 7. Denied for lack of knowledge.

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COUNT ONE

8. Defendants incorporate all their previous admission and denials. 9. Admits that Defendants Glenn Holden was discharged in bankruptcy, but denies that

amount Plaintiff claims is due. 10. Denied for lack of knowledge.

COUNT TWO 11. Defendants incorporate their previous admissions and denials. 12. Denied for lack of knowledge as to whether the mortgage is a valid lien. 13. Denied.
PRAYER FOR RELIEF

14. Defendants deny that Plaintiff is entitled to the requested relief.

First Affirmative Defense


15. Plaintiff failed to state a claim upon which relief can be granted.

Second Affirmative Defense


16. Plaintiff has breached the agreement, either directly or indirectly, and is not entitled to the requested relief.

Third Affirmative Defense


10. Plaintiff and/or its servicing agent may have violated 12 U.S.C. 2601 et. seq.

Fourth Affirmative Defense


11. Plaintiff s damages may be a result of abuse, neglect, modification and/or alteration by the Plaintiff and therefore is not entitled to request relief.

Fifth Affirmative Defense


12. Claims for recoupment and/or set-off available may exist under the federal Fair Debt Collection Practices Act 15 U.S.C.A. 1692 et. seq. Truth in Lending Act, and the Consumer

Sales Practice Act, R.C. 1345 et. seq.


Sixth Affirmative Defense

13. This note and mortgage have been securitized and sold one or more times which resulted in a severance of the note and mortgage.
Seventh Affirmative Defense

14. The balance may not be accurate, and therefore a complete accounting of payments is warranted.
Eighth Affirmative Defense

15. Plaintiff is not the real party in interest and lacks standing to bring said claim and is not entitled to enforce the mortgage.
Ninth Affirmative Defense

16.

Plaintiff is not a holder of the original note because it was never indorsed by the

original lender and Plaintiff is not entitled to enforce the note because Plaintiff never pled possession.
Tenth Affirmative Defense

17.

Plaintiffs claims may be barred by accord and satisfaction, arbitration and award, failure to mitigate damages, waiver, estoppel, laches, release, statute of limitations, or other affirmative defenses set forth in Rule 8(C) of Ohio's Rules of Civil Procedure.
Eleventh Affirmative Defense

18.

The Plaintiff has committed fraud because this case was brought c/o Chase Manhattan Mortgage Corporation, which was merged out of business at the time the complaint was filed. The promissory note is'payable to NovaStar Mortgage, Inc and was never negotiated to Plaintiff. Plaintiff is suing as Deutsche Bank National Trust Company, as Trustee for

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Soundview Home Loan Trust 2005-4, Asset-Backed Certificates, Series 2005-4. However, that trust is governed by a Pooling and Servicing Agreement which lists a cut off date for transfers to the trust as November 1,2005. The assignment of mortgage (drafted by Plaintiffs counsel) attached as Exhibit C'to the complaint was executed on September 17,2010 pearly five years past the cut off date! Twelfth Affirmative Defense 19. Plaintiff is barred from enforcing the terms of the mortgage because Plaintiff has unclean hands. Thirteenth Affirmative Defense 20. The promissory note was sold to some entity other than the Plaintiff. Fourteenth Affirmative Defense 21. Plaintiff may have failed to provide a proper notice of acceleration, which is a condition precedent to filing for foreclosure. Fifteenth Affirmative Defense 22. The mortgage may not have been properly notarized. Sixteentb Affirmative Defense 23. This lawsuit was filed in by Chase Manhattan Mortgage Company, an entity that no longer exists, who posed as an agent of the trust. Seventeenth Affirmative Defense 24. Plaintiff has failed to join all necessary and indispensable parties to this action. Eighteenth Affirmative Defense 25. All or some of the signatures on Plaintiffs exhibits may not be valid or signed with proper authority.

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Nineteenth Affirmative Defense


26. The assignments of mortgage may have been robo-signed.

Twentieth Affirmative Defense

27. Defendants Glenn and Ann Holden reserve the(right to add additional affirmative defenses as they become available through discovery.

WHEREFORE, Defendants Glenn and Ann Holden respectfully request that this Court dismiss the complaint.

COUNTERCLAIM

For their counterclaims, Glenn and Ann Holden state as follows:

JURISDICTION
1. County, Ohio. 2. (FDCPA) 3. The Holdens are also consumers as defined by the Ohio Consumer Sales Practices The Holdens are consumers as defined by the Fair Debt Collection Practices Act. Glenn and Ann Holden (hereinafter "Holdens") own real property in Summit

Act. (OCSPA). 4. The Plaintiff is a debt collector as defined by the FDCPA and is attempting to

collect on a debt it does not own. In addition, Plaintiff is also a supplier as defined by the Ohio Consumer Sales Practices Act "OCSPA". 5. The Summit County Court of Common Pleas has jurisdiction and venue because

some or all of the Holdens' claims for relief arose in Summit County.

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STATEMENT OF FACTS 6. 7. The Holdens' mortgage was assigned after they were allegedly in default. The assignment of mortgage attached to Plaintiffs Complaint as Exhibit C was

drafted by Plaintiffs counsel. 8. Mortgage, Inc. 9.

The assignment of mortgage was executed without authority from NovaStar

Plaintiff does not own Glenn and Ann Holden's note and mortgage so Plaintiff is

not attempting to collect its own debt. 10. The actions by Plaintiff have caused the Holdens aggravation, humiliation,

embarrassment, loss of privacy, strain on personal relationships, loss of enjoyment of life, sleepless nights, worry and anxiety. 11. The actions by Plaintiff are believed to be a pattern and practice in conscious

disregard for the rights of Glenn and Ann Holden.

COUNT ONE FAIR DEBT COLLECTION PRACTICES ACT 15 V.S.C &1692 eta seq. 12. The Holdens incorporate by reference paragraphs 1 through the preceding

paragraph as though fully stated herein.

12.

The Plaintiffs foregoing acts in attempting to collect this debt constitute

violations of the Fair Debt Collection Practices Act, including but not limited to the following sections:

a.)

1692d- any conduct the natural consequence of which is to harass, oppress, or abuse any person;

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b.)

1692e-any false, deceptive, or misleading representation or means in connection

with the debt collection;

c.) d.)

1692e(2)- misrepresented the character, amount, or legal status of the alleged debt;

1692f- any unfair or unconscionable means to collect or attempt to collect the alleged debt;

e.)

1692f(1)-Attempt to collect any amount not authorized by the agreement creating the debt or permitted by law. The Holdens were harmed when Plaintiff made a false, deceptive or misleading representation by attaching Exhibit C to the Complaint in the attempt to collect a debt.

13.

14. 15.

Exhibit C was executed without authority from the original lender. On information and belief, Exhibit C was robo-signed.

16.

Exhibit C gives a false impression to this Court that a valid transfer of mortgage occurred.

17.

Since the mortgage was never properly assigned, Plaintiff is not attempting to collect its own debt.

18. Plaintiff has misrepresented the character, amount and legal status of this debt by attaching Exhibit C to the complaint.

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19. By attaching Exhibit C to the complaint, Plaintiff used an unconscionable means to attempt to collect a debt.

20. The assignment of mortgage was drafted after the Holdens were accused of being in

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default.

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21. The trust that Plaintiff is trustee of is governed by a Pooling and Servicing Agreement which lists a cut off date for transfers to the trust as November 1, 2005. 22. The assignment of mortgage (drafted by Plaintiff s counsel) attached as Exhibit C to the complaint was executed on September 17, 2010 nearly five years past the cut off date!

23. Plaintiff knew this assignment of mortgage was improper, but still used it in the attempt to obtain a judgment against the Holdens.

24.

The Holdens were harmed by these violations by the actions of the Plaintiff and

are entitled to statutory damages, actual damages including damages for emotional distress, and attorneys fees and costs pursuant 15 U.S.C. 1692k(a).

COUNT TWO INVASION OF PRIVACY BY INTRUSION UPON SECLUSION 25. The Holdens incorporate by reference paragraphs 1 through the preceding

paragraph as though fully stated herein.

26.

The Plaintiff intentionally interfered, physically or otherwise, with the solitude,

seclusion, or private concerns or affairs of Glenn and Ann Holden.

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27.

The Holdens had a reasonable expectation of privacy in their solitude, seclusion,

or private concerns or affairs.

28.

The intrusion by the Plaintiff occurred in a way that would be highly offensive to

a reasonable person in that position. 29.

The Holdens were seriously damaged as a result and are entitled to damages, costs

and attorneys fees.

COUNT THREE CONSUMER SALES PRACTICES ACT OHIO REVISED CODE 1345.01
30. The Holdens incorporate by reference paragraphs 1 through the preceding

paragraph as though fully stated herein. 31. The improper, illegal, and abusive debt collection practices committed by Plaintiff

are in violation of the Fair Debt Collection Practices Act, which also constitute unfair and decepti ve practices in violation of the Ohio Consumer Sales Practices Act.

32.

Plaintiff violated R.C. 1345.02(B)(l0) by making a false representation that a

legal obligation was owed by the Holdens to the Plaintiff.

33.

The Holdens are entitled to actual damages multiplied by three and non-economic

damages including damages for mental anguish of $5000.

34.

These violations are known violations of the OCSPA and therefore entitle the

Defendant to reasonable attorneys fees and costs.

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COUNT FOUR
COMMON LAW FRAUD
35. The Holdens reallege and incorporate by reference all the preceding paragraphs as if

fully written herein.

36. Plaintiff made false representations "about being entitled to enforce the note and mortgage. 37. To overburdened judges, as well as many struggling homeowners desperate to save their homes, including Glenn and Ann Holden, the false assignment of mortgage was effective to deceive people as a transfer of rights related to the Holdens' mortgage. 38. The holder of the note and mortgage and identity of any party entitled to enforce is material to the transaction at hand. 39. Plaintiffs representations were made falsely or with such utter disregard and recklessness for whether it was true or false that knowledge should be inferred. 40. Plaintiff made their misrepresentations with the intent that court officials and the Ho ldens would rely on it 41. The Holdens justifiably relied on the assignment of mortgage. 42. The Holdens had resulting injury proximately caused by their reliance on Plaintiffs false assignment of mortgage and misrepresentations. 43. Plaintiff willfully behaved in bad faith by pretending to have a legal right to enforce the Holdens' note and mortgage when Plaintiff does not. 44. Plaintiff willfully intended to defraud the Holdens and this conduct has been so egregious that punitive damages should be awarded. WHEREFORE, the Holdens pray for the following relief:

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a) b) c) d) ( e) damages in excess of$25,000 as to all counts as plead in the Counterclaim; as to Count Three actual damages times three; punitive damages; dismissal of the foreclosure, and

any other relief this Honorable Court deems appropriate. Respectfully submitted, DANN, DOBERDRUK & WELLEN LLC

Marc E. Dann (0039425) Grace M. Doberdruk (0085547) 20521 Chagrin Blvd, Suite D Shaker Heights, Ohio 44122 216-373-0539 Telephone 216-373-0536 Fax mdann@dannlaw.com grace@dannlaw.com Attorneys for Defendants Glenn and Ann Holden
Jury Demand

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Plaintiffs hereby request a trial by jury on all issues, with the maximum number ofjurors permitted by law.

GRACE DOBERDRUK (0085547)

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served by mail this 2012 to the following address: John E. Codrea { David B. Bokor Matthew P. Curry Kristan A. Prill Manley Deas Kochlaski LLC P.O. Box 165028 Columbus, OH 43216-5028 CitiFinancial, Inc. c/o CT Corporation System, Registered Agent 1300 East Ninth Street Cleveland, OH 44114 JP Morgan Chase Bank, N.A. c/o CT Corporation System, Registered Agent 1300 East Ninth Street Cleveland, OH 44114

Co

day of March

Respectfully submitted,

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Grace Doberdruk (0085547) DANN, DOBERDRUK & WELLEN LLC