XXXXX Case No :
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.
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
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.