Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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See the full Court Opinion at :

http://www.4dca.org/opinions/Oct%202010/10-13-10/4D09-2280.op.pdf

 

On appeal, this court reversed. We stated that the bank failed to

refute the mortgagors’ affirmative defense of lack of notice and

opportunity to cure. The bank failed to meet this requirement because

“[n]othing in the bank’s complaint, motion for summary judgment, or

affidavits indicate that the bank gave the [mortgagors] the notice which

the mortgage required. The bank also did not establish that the

[mortgagors’] lack of notice and opportunity to cure defense was legally

insufficient.” Id. at 906. This Court held that “[b]ecause the bank did

not meet its burden to refute the [mortgagors’] lack of notice and

opportunity to cure defense, the bank is not entitled to final summary

judgment of foreclosure.” Id. at 906-07.

In the instant case, as in Frost, the trial court’s entry of summary

judgment was improper. Here, as in Frost, Deutsche moved for summary

judgment, but in that motion, it failed to address affirmative defenses

raised by the mortgagor, Alejandre. Because Deutsche failed to address

Alejandre’s affirmative defenses, it did not carry its burden on summary

judgment. Therefore, the trial court’s entry of summary judgment was

erroneous. We do not pass upon the merits of the affirmative defenses,

as that is a matter to be addressed in further proceedings.

Reversed and Remanded for Further Proceedings Consistent with this

Opinion.

TAYLOR and CIKLIN, JJ., concur.

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In the following post, I will post a sample Answer with Affirmative Defenses.

 

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                               IN THE CIRCUIT OF THE ELEVENTH JUDICIAL
                           CIRCUIT IN AND FORE MIAMI-DADE COUNTY FLORIDA

 

XXXXX                                                     Case No :
            Plaintiff
YYYY
 
            Defendant
----------------------------------------------------/
 
           
                                      DEFENDANT YYYYY’S
                               ANSWER AND AFFIRMATIVE DEFENSES
 

            Defendant YYYYY by and through undersigned counsel and pursuant to
 
applicable rules of the Florida  Rules of Civil Procedures  files this Answer and
 
Affirmative Defenses to Plaintiff’s Complaint; and states :
 
           1.  Defendant YYYYY denies all allegations of Plaintiff’s Complaint and
 
Demand strict proof thereof.
 
           2.  Defendant YYYYY specifically denies that conditions precedent to
 
Plaintiff’s right of action, right to attorney’s fee and or right to accelerate herein were
 
performed or met by Plaintiff or the same was waived by the defendant.
 

                                 AFFIRMATIVE  DEFENSES
 

           3.  As a first affirmative defense, defendant states that plaintiff’s complaint
 
fails to state a cause of action which relief requested may be granted and therefore
 
this action is barred.
 
           4.  As a second affirmative defense, the defendant states that plaintiff does
 
not have capacity to sue or bring this action and this action is therefore barred.
 

     5.    As a third affirmative defense, defendant states that Plaintiff is not the real
 
Party in interest and or duly authorized agent of same upon which plaintiff’s alleged
 
claim is based and therefore has no standing to bring this action.
 
      6.   As a fourth affirmative defense, defendant states that plaintiff’s failed to
 
Perform conditions precedent to the initiation of this action and or for acceleration of
 
payment allegedly due.  As a result, 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.
 
        7.  As a fifth affirmative defense, defendant asserts all terms and condition of
 
the promissory notes and mortgage upon which plaintiff’s alleged claim is based.
 
       8.   As a sixth affirmative defense, defendant asserts  all requirements of
 
applicable mortgage foreclosure statutes.
 
       10.   As a seventh affirmative defense, defendant states that plaintiff is not the l
 
lawful assignee of the Promissory Note and Mortgage upon which plaintiff’s alleged
 
claim is based.
 
        11.   As a ninth affirmative defense, defendant states that Plaintiff cannot
 
produce the original Promissory Note and Mortgage upon which this action is based
 
and therefore relief requested is barred.
 
         12.   As ninth affirmative defense, defendant states that plaintiff is not the
 
holder of the Promissory Note and Mortgage upon which this action is based and
 
therefore relief requested is barred.
 
         13.   As an eleventh affirmative defense, defendant states that plaintiff is not
 
in possession of the Promissory Note and Mortgage upon which this action is based
 
and therefore relief requested is barred.
 
 
        14.   As a twelfth affirmative defense, defendant states that upon information
 
and  belief, the note has been paid in full by an undisclosed third party who prior to
 
or contemporaneously with the closing on the loan transaction paid the Lender in
 
exchange for certain unrecorded rights to the revenues arising out of the loan
 
documents. Upon information and belief, Plaintiff has no financial interest in the note
 
or mortgage. Upon information and belief, the missing assignments on the note may
 
have made it void and legal nullity, thus they have exploited key and vital evidence
 
or shipped same off-shore to a structure investment vehicle that also has no interest
 
In the note or mortgage or the revenue therefrom. Upon information and belief,
 
plaintiff’s allegation that the note and the mortgage is lost, stolen or destroyed is
 
therefore a fraud upon the court.
 
        15.  As a thirteenth affirmative defense, defendant states that plaintiff’s claim
 
Is barred by the statue of frauds, laches and or the statue of limitations.
 
        16.    As a fourteenth affirmative defense, defendant states that plaintiff’s
 
claim  is barred and or limited for violation of the federal Truth in Lending Act (TILA).
 
         17.   As a fifteen affirmative defense, defendant states that plaintiff’s claim
 
Is barred and or limited for violation of RESPA. Upon information and belief,
 
Plaintiff and or its predecessor(s) in interest violated various provision of the Real
 
Estate Settlement Procedures Act (“RESPA”), which is codified as 12 U.S.C
 
Section 2601, et seq. by. Inter alia :
 
          a)    Failing to provide the Housing and Urban Development (HUD) special
 
Information booklet, a Mortgage Servicing Disclosure Statement, and Good Faith
 
Estimate of settlement/closing costs to Defendant at the time of the loan application
 
or within three (3) days thereafter;
 
           b)   Failing to provide Defendants with an Escrow Disclosure Statement for
 
each year of the mortgage since its inception;
 
       c)   Giving or accepting fees, kickback and or other things of value in
 
exchange for referrals of settlement service business, and splitting fees and
 
receiving unearned fees for service not actually performed;
 
        d)    Charging a fee at the time of the loan closing for the preparation of truth-
 
in-lending, uniform settlement and escrow account settlements.
 
       18)    As a sixteenth affirmative defense, defendant states that plaintiff’s claim
 
is  barred and or limited for violation of the state and or federal Fair Debt Collection
 
Practices Act.
 
         19)   As a seventeenth affirmative defense, defendant states that plaintiff
 
claim for attorney’s fee is barred for failure to perform or meet conditions precedent
 
under the promissory note and or mortgage upon which action is allegedly based.
 
alternatively, there is no valid contract or other written agreement between the
 
parties permitting the award of attorney’s fees in connection with this action.
 
        20)   As an eighteenth affirmative defense, defendant states that plaintiff
 
comes to court with unclean hands and 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 improvident and predatory intentional failure to
 
comply with material term of the mortgage and note; the failure to comply with the
 
default loan servicing requirements that apply to this loan, as described
 
herein above. As a matter of equity, this court should refuse to foreclose this
 
mortgage because acceleration of the note would be inequitable, unjust, and the
 
circumstanced of this case render acceleration unconscionable. This court should
 
refuse the acceleration and deny foreclosure because plaintiff has waived the right
 
to acceleration or is stopped from doing so because of misleading conduct and
 
unfulfilled contractual and equitable conditions precedent.
 
      21)   As a nineteenth affirmative defense, defendant states that upon information
 
and belief, Defendant have made all payments required by law under the
 
circumstances; however Plaintiff and/or its predecessor(s) in interest improperly
 
applied such payments resulting in the fiction that Defendant was in default.
 
defendant is entitled to a full accounting through the master transaction histories
 
and general ledger for the account since a dump or summary of said information
 
cannot be relied upon to determine the rightful amount owed. Further, the  principal
 
balance claimed as owed is not owed and is the wrong amount ; the loan has not
 
been properly credited or amortized. Additionally, plaintiff wrongfully placed forced
 
insurance on the property and or is attempting to collect on property taxes,
 
insurance and fees not owed.
 
     22)   As a twentieth affirmative defense, the defendant states that plaintiff failed
 
To comply with the foreclosure prevention loan servicing requirements impose on
 
plaintiff pursuant to the National Housing Act, 12 U.S.C. 1701x( c) (5) which
 
requires all private lenders serving non-federally insured home loans, including
 
the Plaintiff, to advise borrowers of any home ownership counseling plaintiff offers
 
together with information about counseling offered by the U.S Department of
 
Housing and Urban Development . The U.S Department of Housing and Urban
 
Development  has determined that 12 U.S.C. 1701x( c) (5)  creates an affirmative
 
legal duty on the part of the plaintiff. Plaintiff’s non-compliance with the law’s
 
requirements is an actionable event that makes the filing of this foreclosure
 
premature based on a failure of statutory condition precedent to foreclosure which
 
denies plaintiff’s ability to carry out this foreclosure. Plaintiff cannot legally pursue
 
 foreclosure unless and until plaintiff demonstrates compliance with 12 U.S.C. 1701x( c) (5)  .
 

      23.  As a twenty-first affirmative defense, defendant states that plaintiff has charged
 
and or collected payments from defendant for attorneys fees, legal fees, litigation attorney
 
fees, foreclosure cost, late charges, property inspection fees, “property valuation”
 
charges, and other charges and advances, and predatory fees, force placed insurance
 
and other charges that are not authorized by or in conformity with the terms of the subject
 
note and mortgage. Plaintiff wrongfully added and continues to unilaterally add these illegal charges to the balance plaintiff claims is due owing under the subject note and mortgage.
 
     24.  As twenty-second affirmative defenses, defendant states that plaintiff failed
 
to provide defendant with legitimate and non predatory access to the debt management
 
and relief that must be made available to borrowers, including the defendant pursuant to
 
and in accordance with the Pooling and Servicing Agreement or other trust agreement that controls and applies to the subject mortgage loan. Plaintiff’s non-compliance with the
 
conditions precedent to foreclosure imposed on the plaintiff pursuant to the applicable
 
Pooling and Service 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.
 
Plaintiff cannot legally pursue foreclosure unless and until plaintiff demonstrates
 
compliance with the foreclosure prevention servicing imposed by the subject
 
Pooling and Servicing or Trust Agreement under which the Plaintiff owns the
 
subject mortgage loan.
 
        25.   As a twenty-third affirmative defense, defendant states that plaintiff
 
unintentionally failed to act in good faith or to deal fairly with the defendants by
 
failing to follow the applicable standards of residential single family mortgage
 
servicing as described in these affirmative defenses thereby denying defendant
 
access to the residential mortgage servicing protocols applicable to the subject
 
note and mortgage. 
 
         26.    As a twenty-fourth Affirmative Defenses, Plaintiff is not entitled to any deficiency judgment as it failed to mitigate damages by refusing to accept a deed in lieu or short sale offers proposed by or on behalf of defendant. Plaintiff otherwise failed to mitigate its damages by other factors to be revealed through discovery.
 
         27.    As a twenty-fifth affirmative defenses, defendant states that in light of all of
 
the foregoing defenses, and on the face of the purported loan documents, the terms
 
and circumstances of the Note and Mortgage were unconscionable when made and
 
were unconscionably exercises, it is therefore unconscionable  to enforce the
 
mortgage by foreclosure.
 
        28.   As a twenty-sixth affirmative defense, defendant states that plaintiff
 
cannot prove its case against defendants and therefore this court should enter
 
judgment in defendant’s favor and quiet title in their favor, voiding the alleged
 
promissory and mortgage upon which plaintiff seeks to recover herein.
 
       29.    As a twenty-seventh affirmative defense, defendant state that plaintiff is
 
liable for defendant’s costs and attorney’s fees pursuant to terms of the agreement
 
between the parties and Florida Statutes, Section 57.105 and or applicable
 
Provisions of the State and Federal Fair Debt Collection Practices act and or the
 
Federal Truth and Lending Act.
 
         WHEREFORE, Defendant yyyyyy requests this Court to enter Judgment in
his favor, quieting title, awarding cost and attorney’s fee for those reasons set forth
 
herein in addition to relief deemed proper.
 
 
 
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William A. Roper, Jr.
Excellent job, Ann!  I ran across that case yesterday, but have been so busy fielding queries from reporters that I didn't get anything up on the Board. 

The LEXIS citation is:

Alejandre v. Deutsche Bank Trust Co. Ams., No. 4D09-2280, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 2010 Fla. App. LEXIS 15544, October 13, 2010, Decided,  NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

Keep Up the Great Work, Ann!!
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In foreclosure lawsuit, many lawyers file Motion to Dismiss first. When MTD denied they file Answer with Affirmative Defense.
Florida Rules of Civil Practices Procedures (download the Rules at http://www.floridabar.org) allows   litigants to file Amended Answer with Affirmative Defenses before the Hearing takes place. In case the Defendant did not have all the Affirmative Defenses in the initial Answer, the Defendant can file a Motion for Leave to Amend Answer. After the Court grants the Motion to Amend the Answer, Defendant should get all the Affirmative Defenses in the new Answer. Any defense not raised in the Answer may not be admitted or considered in later pleadings to fight the Motion for Summary Judgment or Trial.
In addition to the Answer, Defendant can file Discovery  i.e Request for Production, Request for Admission and Interrogatories.  By the rule, Summary Judgment is improper when the Discovery is incompleted.
If Bank refuses to provide documents, file Motion to Compel. I'll search for Discovery samples to post. Any of you have samples of discovery please post it here. Thanks
The Bank still continue the foreclosure process even if they say otherwise on the news. We should continue our research to support our cases. Many Judges are beginning to rule favoring the Homeowners but we have to give the Judges  good pleadings with good Defenses so they can hang their hats. Include in your Motion to Dismiss or Opposition to Summary Judgement as many Appeal Court opinions to support  and re-inforce the defenses  (in legal term they call it Case Law).
Remember it is best to have a lawyer but if you can't afford a lawyer you still can fight and win (with a lot of work). In Foreclosure lawsuit, you can hire a lawyer at any stage of the lawsuit if you get some money from your uncle. However, the earliest you hire a good lawyer, the better . A good Answer with Affirmative Defenses will lay the ground for you or your future lawyer to fight the SMJ or win at the trial.
Even if you have a lawyer, you should keep a very close eye on your case and continue to do reseach. E-mail your lawyer all news, pleadings, reseach you find. The foreclosure defense field is constantly changing, help your lawyer keep up with updates.
I email the Bar Board Members, the Chief Judge and Foreclosure judges  and State Attorney General in my county all nationwide and Appeal Courts news and Court Ruling favoring Homeowers so they see what is happenning  outside their Court rooms. You can do the same for your area. Every little action help to save our home. The tide is turning to our favor, keep fighting.
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