IN THE CIRCUIT COURT OF THE 18TH JUDICIAL CIRCUIT

OF FLORIDA, IN AND FOR SEMINOLE COUNTY

BANK OF AMERICA, N.A. AS SUCCESSOR

BY MERGER TO BAC HOME LOANS
SERVICING, LP f/k/a COUNTRYWIDE
HOME LOANS SERVICING, LP

Case No.: 2012-CA-XXX-14L

Plaintiff,
v.
JOHN DOE AND JANE DOE, et. al.,
Defendants,
_________________________________________/
DEFENDANTS JOHN DOE AND JANE DOES
ANSWER AND AFFIRMATIVE DEFENSES
Defendants John Doe and Jane Doe, by and through their undersigned counsel, file this,
their Answer and Affirmative Defenses to Plaintiffs Complaint. Defendants must deny the
introductory paragraph of the Complaint as they are without knowledge as to the Plaintiffs
merger to BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP and
strict proof thereof is demanded.

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Answer and Affirmative Defenses

GENERAL ALLEGATIONS
1.

Paragraph 1 is admitted in that the Plaintiffs chose in action is a mortgage foreclosure

and only insofar as the 18th Judicial Circuit in and for Seminole County, Florida, has
jurisdiction over mortgage foreclosure actions for real property located within Seminole
County, Florida and denied as to the Courts subject matter jurisdiction over this mortgage
based upon the lack of standing of the Plaintiff to bring this suit. Strict proof thereof is
demanded.

2.

Paragraph 2 is admitted only insofar as the Defendants executed a promissory note and
mortgage on August 16, 2006. Defendants deny they delivered same to the payee named
thereon. Defendants deny that the true and correct copies of the Note and Mortgage are
attached to the Complaint as Exhibit A and B. Defendants deny for lack of knowledge
that the mortgage was recorded in the Official Records at Book 7000, Page 100, and strict
proof is demanded.

3.

Paragraph 3 is admitted in that the Defendants executed a mortgage, but denied for lack
of knowledge in that they executed the mortgage that Plaintiff offers.

4.

Paragraph 4 is admitted in that the Defendants executed a note, but denied for lack of
knowledge in that they executed the note the Plaintiff offers.

5.

Paragraph 5 is denied for lack of knowledge. Plaintiff attached to its complaint a

document entitled NOTICE REQUIRED BY THE FAIR DEBT COLLECTIONS
PRACTICES ACT which states that The creditor to whom the debt is owed is Bank of
America, N.A. Successor by Merger to BAC Home Loans Servicing, LP F/K/A
Countrywide Home Loans Servicing, LP.. Contrarily, Plaintiff claims in paragraph 5 of
the Complaint that Federal National Mortgage Association is the owner of the note.

6.

Paragraph 6 is denied for lack of knowledge.

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Answer and Affirmative Defenses

7.

Paragraph 7 is admitted.

8.

Paragraph 8 is denied. The mortgage provides that prior to the institution of a lawsuit,
the Plaintiff must send written notice of breach (default) to the Defendants, which notice
must meet strict standards, and that only after that notice is provided can the Plaintiff
accelerate the debt. (Mortgage, paragraphs 15, 18, 19, 20 and 22) The Plaintiff failed to
send the notice as required by the mortgage. These notices are also required by the Note, at
paragraphs 6(C) and 7.

9.

Paragraph 9 is denied. The Plaintiff is not permitted to declare default as it has no lawful
right to enforce the Note and Mortgage.

10.

Paragraph 10 is denied as the Plaintiff has no lawful right to enforce the Note and
Mortgage.

11.

Paragraph 11 is denied for lack of knowledge.

12.

Paragraph 12 is denied as the Defendants are without knowledge as to the Plaintiffs right
to enforce the Note and Mortgage and as to Plaintiffs ownership and holdership of the
promissory note and mortgage and therefore are without knowledge as to the Plaintiffs
right to demand any payment or collect any payment from the Defendants. Strict proof of
all assertions within this paragraph is demanded.

13.

Paragraph 13 is denied as the Defendants is without knowledge as to any contract

between the Plaintiff and a law firm and strict proof thereof is demanded.

14.

Paragraph 14 is denied for lack of knowledge.

15.

Paragraph 15 is denied for lack of knowledge.

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Answer and Affirmative Defenses

16.

Paragraph 16 is denied.

17.

Paragraph 17 is denied.

AFFIRMATIVE DEFENSES
FACTS RELEVANT TO AFFIRMATIVE DEFENSES
I.

LACK OF NOTICE OF BREACH

18.

The Note requires that notice must be given to the borrowers by first class mail or by
delivery to the property address. The Mortgage requires written notice must be given to the
borrowers in writing by first class mail or delivered to the property address. Paragraph 19
of the mortgage explains that notice provides the borrower with an opportunity to cure.
The mortgage provides a covenant and a condition that no suit may be commenced until
after the notice of breach is given. Paragraph 20 of the mortgage provides in relevant part:

Neither the Borrower nor Lender may commence, join, or be joined to

any judicial action (as either an individual litigant or the member of a class) that arises from the
other partys actions pursuant to this Security Instrument or that alleges that the other party has
breached any provision of, or any duty owed by reason of, this Security Instrument, until such
Borrower or Lender has notified the other party (with such notice given in compliance with the
requirements of Section 15) of such alleged breach and afforded the other
party hereto a reasonable period after the giving of such notice to take
corrective action.
19.

Plaintiff did not plead that it provided the Defendants with notice of breach, nor did it
attach notice of breach to its complaint.

II.

LACK OF NOTICE OF ACCELERATION

20.

Paragraph 18 of the mortgage provides in relevant part:

The notice [of acceleration]shall provide a period of not less than

30 days from the date the notice [of breach] is given in accordance
with Section 15 within which Borrower must pay all sums secured
by this Security Instrument.
21.

Paragraph 22 of the mortgage provides in relevant part:

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Answer and Affirmative Defenses

Lender shall give notice to Borrower prior to acceleration following Borrowers breach of any
covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18
unless Applicable Law provides otherwise). The notice shall specify (a) the default, (b) the
action required to cure the default, (c) a date, not less than 30 days from the date the notice is
given to Borrower, by which the default must be cured, and (d) that failure to cure the default on
or before the date specified in the notice may result in acceleration of the sums secured by this
Security Instrument, foreclosure by judicial proceeding and sale of the property. The notice shall
further inform Borrower of the right to reinstate after acceleration and the right to assert in the
foreclosure proceeding the non-existence of a default or any other defense of Borrower to
acceleration and foreclosure.
22.

Plaintiff did not plead that it provided the Defendants with notice of acceleration, nor did
it attach notice of acceleration to its complaint.

III.

LACK OF NOTICE OF CHANGE OF LOAN SERVICER

23.

Written notice of a change of the loan servicer is required by 15 U.S.C. 1641(g), 24

C.F.R. 3500.21 (d) and by paragraph 20 of the mortgage which states:

If there is a change of the loan servicer, borrower will be given written notice of the change
which will state the name and address of the new loan servicer, the address to which payments
should be made and any other information RESPA requires in connection with a notice of
transfer of servicing.
24.

15 U.S.C. 1641(g) requires:

(1) In general
In addition to other disclosures required by this subchapter, not later than 30 days after the date
on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor
that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer,
including
(A) the identity, address, telephone number of the new creditor;
(B) the date of transfer;
(C) how to reach an agent or party having authority to act on behalf of the new creditor;
(D) the location of the place where transfer of ownership of the debt is recorded; and
(E) any other relevant information regarding the new creditor.
25.

24 C.F.R. 3500.21(d) states:

Notices of Transfer; loan servicing. (1) Requirement for notice. (i) Except as provided in this
paragraph (d)(1)(i) or paragraph (d)(1)(ii) of this section, each transferor servicer and transferee
servicer of any Mortgage servicing loan shall deliver to the borrower a written Notice of
Transfer, containing the information described in paragraph (d)(3) of this section, of any
assignment, sale, or transfer of the servicing of the loan. The following transfers are not
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Answer and Affirmative Defenses

considered an assignment, sale, or transfer of Mortgage loan servicing for purposes of this
requirement if there is no change in the payee, address to which payment must be delivered,
account number, or amount of payment due:
(A) Transfers between affiliates; (B) Transfers resulting from mergers or acquisitions of
servicers or subservicers; and (C) Transfers between master servicers, where the subservicer
remains the same.
....
(2) Time of notice. (i) Except as provided in paragraph (d)(2)(ii) of this section: (A) The
transferor servicer shall deliver the Notice of Transfer to the borrower not less than 15 days
before the effective date of the transfer of the servicing of the Mortgage servicing loan; (B) The
transferee servicer shall deliver the Notice of Transfer to the borrower not more than 15 days
after the effective date of the transfer; and (C) The transferor and transferee servicers may
combine their notices into one notice, which shall be delivered to the borrower not less than 15
days before the effective date of the transfer of the servicing of the Mortgage servicing loan.
(ii) The Notice of Transfer shall be delivered to the borrower by the transferor servicer or the
transferee servicer not more than 30 days after the effective date of the transfer of the servicing
of the Mortgage servicing loan in any case in which the transfer of servicing is preceded by:
(A) Termination of the contract for servicing the loan for cause; (B) Commencement of
proceedings for bankruptcy of the servicer; or (C) Commencement of proceedings by the
Federal Deposit Insurance . . .
26.

Plaintiff did not plead that the loan servicer had changed from the original lender to
Countrywide Home Loans Servicing, LP, and then to BAC Home Loans Servicing, LP and
then to Bank of America, N.A., nor did it plead that it gave notice of a change in the loan
servicer to the Defendants, nor did it attach notice of a change of the loan servicer to its
Complaint. Plaintiff and/or its predecessors failure to provide the Defendants with notice
of the change of the mortgage loan servicer was in violation of 15 U.S.C. 1641(g), 24
C.F.R. 3500.21 (d) and by paragraph 20 of the mortgage.

IV.

LACK OF STANDING

27.

The original lender was Home Capital, Inc., DBA Loan America, Inc. The original
mortgagee was Mortgage Electronic Registration Systems, Inc. (MERS). MERS had not
assigned the Mortgage to anyone. Plaintiff includes in its Complaint an Allonge to
Promissory Note which purports to be from the original lender to Countrywide Bank,
N.A. Pursuant to Johns v. Gillian, 134 Fla. 575 (Fla. 1938), Jeff-Ray Corp. v. Jacobson,
566 So. 2d 885 (Fla. 4th DCA 1990), and the Florida Uniform Commercial Code 671.102,
the Defendants and the original Lender contracted around the provisions of the Florida case
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Answer and Affirmative Defenses

law and the UCC and separated the promissory note from the mortgage at the inception of
the loan. The Plaintiff failed to reunite title and ownership or holdership of both the
promissory note and mortgage prior to the filing of this action thereby limiting the
Plaintiffs remedy at law to money damages on the promissory note alone and precluding
the right to sue on the mortgage.
28.

Pursuant to Taylor v. Deutsche Bank Nat'l Trust Co., 44 So.3d 618 (Fla. 5th DCA 2010),
MERS failure to assign the mortgage to the Plaintiff on or prior to the filing of this action
resulted in MERS continued status as a nonholder in possession with the rights of a holder
(673.3011) with the concomitant result that the Plaintiff lacks standing to bring an action
on the mortgage that it neither owned nor held.

29.

Plaintiff attached to its complaint a document entitled NOTICE REQUIRED BY THE

FAIR DEBT COLLECTIONS PRACTICES ACT which states that The creditor to
whom the debt is owed is Bank of America, N.A. Successor by Merger to BAC Home
Loans Servicing, LP F/K/A Countrywide Home Loans Servicing, LP. Contrarily, Plaintiff
claims in paragraph 5 of the Complaint that Federal National Mortgage Association is the
owner of the note. If Plaintiff owns and holds the Note and Mortgage, its verification of
the Complaint is effective; if Plaintiff does not own and hold the Note and Mortgage, its
verification of the Complaint is false and ineffective. On information and belief, Plaintiff
does not own and hold the Note and Mortgage, and Plaintiff cant show that it or Federal
National Mortgage Association accepted the Note and Mortgage as a gift or that either paid
value for the Note and Mortgage.

30.

The initial indorsement on the allonge from the original lender, Home Capital, Inc., was
allegedly signed by Debra L. Lange, and allegedly as assistant vice president of Home
Capital, Inc. In fact, the indorsement only states Lange and is specifically denied as to
authenticity and authority. Home Capital, Inc. did not authorize Debra L. Lange to
execute the allonge as there was no corporate resolution or by-law that authorized Debra L.
Lange, as assistant vice president to transfer an interest in the Note.

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Answer and Affirmative Defenses

31.

If Plaintiff later finds an assignment from MERS to Plaintiff, that assignment will be
false and fraudulent as MERS is not an agent of Plaintiff, Federal National Mortgage
Association, Countrywide Bank, N.A. or Countrywide Home Loans, Inc., and its transfer
of the Note to Plaintiff is a materially false and misleading statement.
(Note: Paragraphs 32 - 38, inclusive, are on information and belief.)

32.

On information and belief, this mortgage loan is owned by another entity that is not
before the court which entity is a trustee of a REMIC trust. The mortgage loan was
originally registered with the U.S. Securities and Exchange Commission. The terms of the
trust are stated in the Pooling and Servicing Agreement. (hereafter, PSA) The trust is
governed by New York law and as such, the trustee is prevented from accepting any Notes
after the trusts closing/cut-off date. Additionally, the trust requires that if a MERS owned
loan is transferred to the trustee, that all intervening indorsements - such as from the
depositor - must be on the Note. The Note does not carry any such required intervening
indorsements.

33.

New York law provides that any transfers beyond the stated powers of the trust are void.
If the trust is expressed in the instrument creating the estate of the trustee, every sale,
conveyance, or other act of the trustee in contravention of the trust, except as authorized
by this article and by any other provision of law, is void. McKinney's Consolidated Law
of New York Annotated, Estates Powers and Trust Laws, section 7-2.4 (2003); see Allison
& Ver Valen Co. v. McNee, 9 N.Y.S. 2D 708 (N.Y. Sur. 1939).

34.

Florida law provides that the respective powers of a Trustee must be interpreted by the
Plan Documents, especially the Trust Agreement. Celotex Corp. v. City of New York, 487
F.3d 1320 (11th Cir. 2007) From the trust, the trustee derives the rule of his conduct, the
extent and the limit of his authority, the measure of his obligation. Jones v. First Nat'l Bak
in Fort Lauderdale, 226 So. 2D 834, 835 (Fla. Dist. Ct. App. 1969) The trustee can
properly exercise powers and only such powers as (a) are conferred upon him in specific
words by the terms of the trust, or (b) are necessary or appropriate to carry out the
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Answer and Affirmative Defenses

purposes of the trust and are not forbidden by the terms of the trust. Restatement
(Second) of Trusts, Section 186 (1959).
35.

The closing date is also known as the start-up date of each Trust REMIC within the
meaning of Section 860G(a)(9) of the Code. The PSA states that the Trustee received all
the mortgage loans by the Closing Date as an absolute sale and not a pledge. The REMIC
must purchase the mortgage loan within three months of the start-up date. (IRC section
860G(a)(3)(A)(i)-(ii)(2006)).

If a mortgage loan is contributed after the three month

window, it must qualify as a qualified replacement mortgage. (IRC 860G(a)(4)(A)-(B)

(2006)). A qualified replacement must be traded for a defective obligation and may note
be conducted more than two years after the start-up date. 26 U.S.C. 860G(a)(4)(B)(ii)
(2006)).
36.

The transfer of the note and mortgage to the Plaintiff or its predecessors in interest was
illegal and void because the attempted transfer was more that two years after the closing
date/cut-off date. By operation of the Pooling and Servicing Agreement and New York
law, the Plaintiff and/or Federal National Mortgage Association cannot own the Note and
doesnt own the Note.

37.

If the trust subsequently became a private trust, it too is prevented from taking a note in
blank by New York law. EPT. LAW 7-2.1: NY Code Section 7-2.1 provides:

Extent of trustees estate, subsection (c)

A trust as described in sections 9-1.5, 9-1.6 and 9-1.7 of the estates, powers and trusts law,
including a business trust as defined in subdivision two of section two of the general associations
law, may acquire property in the name of the trust as such name is designated in the instrument
creating said trust.
38.

Notes endorsed in blank can not lawfully be an asset of a private mortgage backed
security (MBS) Trust established under New York trust law.

39.

Wherefore, Plaintiff had not authority to bring this action or to collect the debt.

V.

ILLEGAL DEBT COLLECTION

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Answer and Affirmative Defenses

40.

Based on the facts given above, Plaintiff and/or Federal National Mortgage Association
had no lawful right to attempt to collect this debt. Plaintiff and its agents/principals
conducted illegal collection activity against the Defendants, including but not limited to
dunning letters, telephone calls and negative credit reporting.

41.

Defendants have been harmed by the aforementioned illegal collection activity.

FIRST AFFIRMATIVE DEFENSE
Fraud

42.

The plaintiff intentionally represented to the Court and Defendants that it has a legitimate
right to enforce the debt and that it owns and holds the original promissory Note along with
an original Mortgage.

43.

At the time the Plaintiff filed the foreclosure action, it and its agents and attorneys knew
that it did not have the right to enforce the Note and Mortgage and also that there was no
Assignment of Mortgage from MERS, who is the current owner and holder of the
Mortgage. Plaintiff also stated that it is the creditor to whom the debt is owed (meaning,
owner of the Note and Mortgage) and contrarily stated that Federal National Mortgage
Association is the owner of the Note and Mortgage. This is a misrepresentation of the
name of the true creditor.

44.

These misrepresentations were made with the intent that the Court and Defendants would
rely thereon, and the Court and Defendants have relied thereon. The Defendants have been
harmed in that this action has resulted in destruction of credit, denial of loan applications,
loss of investment and business opportunities, financial hardship of defending this action,
and mental and emotional distress.

45.

Where "a party has sentiently set in motion some unconscionable scheme calculated to
interfere with the judicial system's ability to impartially adjudicate a matter by improperly
influencing the trier of fact or unfairly hampering the presentation of the opposing party's
claim or defense." Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998).
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Answer and Affirmative Defenses

46.

Trial courts have "the right and obligation to deter fraudulent claims from proceeding in
court." Savino v. Fla. Drive In Theatre Mgmt., Inc., 697 So.2d 1011, 1012 (Fla. 4th DCA
1997). This is because "[o]ur courts have often recognized and enforced the principle that a
party who has been guilty of fraud or misconduct in the prosecution or defense of a civil
proceeding should not be permitted to continue to employ the very institution it has
subverted to achieve [its] ends." Hanono v. Murphy, 723 So.2d 892, 895 (Fla. 3d DCA
1998). Where a party perpetrates a fraud on the court which permeates the entire
proceedings, dismissal of the entire case is proper. Desimone v. Old Dominion Ins. Co.,
740 So.2d 1233, 1234 (Fla. 4th DCA 1999).

SECOND AFFIRMATIVE DEFENSE

Unclean Hands
47.

The Plaintiff is pursuing this foreclosure under a guise of authority it does not have. A
foreclosure action is an equitable proceeding which may be denied if the holder of the Note
comes to the court with unclean hands or the foreclosure would be unconscionable.
Knight Energy Services, Inc. v. Amoco Oil Co., 660 So.2d 786, 789 (Fla. 4th DCA 1995).

48.

The Florida Supreme Court held that while [m]ere notions or concepts of natural justice
of a trial judge which are not in accord with established equitable rules and maxims may
not be applied in rendering a judgment, relief from a foreclosure action may be provided
where the Mortgagee failed to perform some duty upon which the exercise of his right to
accelerate was conditioned.

David v. Sun Federal Sav. & Loan Ass'n, 461 So.2d 93, 95-

6 (Fla., 1984).
THIRD AFFIRMATIVE DEFENSE
Plaintiffs Lack of Standing to Bring This Action
49.

The Plaintiff does not own or hold the promissory note and mortgage, is not entitled to
enforce same under 673.3011 Fla. Stat., and lacks standing to bring this action against the
Defendants. Plaintiff does not own and hold the Mortgage and neither does Federal
National Mortgage Association. The Note carries unauthentic and unauthorized
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Answer and Affirmative Defenses

indorsements. On information and belief, Plaintiff also had had no legal authority to accept
a mortgage loan after the closing date of the Pooling and Serving Agreement and therefore,
does not own the mortgage loan. Transfers of the Note and Mortgage were not in accord
with the requirements of the Pooling and Servicing Agreement and the indorsement on the
Note is not authorized and fraudulent.
50.

There is no assignment of mortgage from MERS to Plaintiff. MERS still is the owner of
the Mortgage. MERS has not joined in or ratified this action.

51.

Plaintiff failed to plead sufficient ultimate facts to support standing and failed to plead the
specific subdivision of 673.3011 Fla. Stat. which grants it authority as a holder.
FOURTH AFFIRMATIVE DEFENSE
Failure to State a Cause of Action

52.

A party does not state a cause of action by merely reciting legal conclusions or tracking
statutory language, but must include factual allegations. Ginsberg v. Lennar Fla. Holdings,
Inc., 645 So. 2D 490, 501 (Fla. 3d DCA 1994); Becerra v. Equity Imports, 551 So.2d 486,
487-88 (Fla. 3d DCA

1989). Failure to state sufficient factual allegations therefore

requires dismissal of the claim.

53.

The Plaintiffs complaint is a fraud upon the Court and the Defendants. The Plaintiff
cant state a cause of action as it has no authority to enforce the subject promissory Note
and Mortgage.
FIFTH AFFIRMATIVE DEFENSE
Unauthentic and Unauthorized Signatures Fla. 673.3081

54.

Defendants deny the authenticity of each and every indorsement on the Note and
Mortgage, including their own alleged indorsements, and demand strict proof thereof, by
clear and convincing evidence, pursuant to 673.3081, Fla. Stat. (2011).

55.

On information and belief, the Plaintiff does not have the original promissory note
executed by the Defendants, does not have access to same, and any reproductions of the
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Answer and Affirmative Defenses

alleged original promissory note constitute unauthentic signatures. On information and

belief, the Plaintiff cannot authenticate the signatures thereon.
SIXTH AFFIRMATIVE DEFENSE
Violation of 15 U.S.C. 1692 et. seq.
56.

The Plaintiff knew that it was collecting a debt it had no right to collect.

57.

Defendants are consumers within the meaning of the FDCPA, 15 U.S.C. 1692a(3).
Plaintiff and its agents and attorneys are debt collectors within the meaning of the FDCPA,
15 U.S.C. 1692a(6).

58.

The plaintiff, its agents and attorneys violated 15 U.S.C. 1692d by engaging in conduct
the natural consequence of which is to harass, oppress, or abuse any person, and which did
harass, oppress and abuse the Defendants by falsely representing the character, amount, or
legal status of the debt (15 U.S.C. 1692e(2)); by sale or transfer of an interest in the debt
that caused the consumer to lose any claim or defense to payment of the debt, and in
particular, by obfuscation of the true creditor (15 U.S.C. 1692e(6)); by communicating or
threatening to communicate to any person credit information which is known or which
should be known to be false, including the failure to communicate that a disputed debt is
disputed (15 U.S.C. 1692e(8)); by the use of any false representation or deceptive means
to collect or attempt to collect any debt or to obtain information concerning a consumer (15
U.S.C. 1692e(10)); by the collection of any amount (including any interest, fee, charge, or
expense incidental to the principal obligation) unless such amount is expressly authorized
by the agreement creating the debt or permitted by law (15 U.S.C. 1692f(1)); by taking or
threatening to unlawfully repossess or disable the consumers property (15 U.S.C.
1692f(6)); by, within five days after the initial communication with Defendants in
connection with the collection of any debt, failing to send Defendants a written notice
containing a statement that unless the consumer, within thirty days after receipt of the
notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to
be valid by the debt collector; a statement that if the consumer notifies the debt collector in
writing within the thirty-day period that the debt, or any portion thereof, is disputed, the
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Answer and Affirmative Defenses

debt collector will obtain verification of the debt or a copy of a judgment against the
consumer and a copy of such verification or judgment will be mailed to the consumer by
the debt collector; and a statement that, upon the consumer's written request within the
thirty-day period, the debt collector will provide the consumer with the name and address
of the original creditor, if different from the current creditor (15 U.S.C. 1692g).
59.

Plaintiff violated provisions of the Federal Fair Debt Collection Practices Act at 15 USC
1692, et. seq. because it did not have any right to enforce collection of this Mortgage and
Note because it did not have standing, it did not comply with all conditions precedent, it
has no legally enforceable claim against the Defendants, it did not comply with the contract
requirements for acceleration, it had unclean hands, it harmed the credit of Defendants, it
sent dunning letters to the defendants and it falsely misled Defendants as to the name of the
true creditor.
SEVENTH AFFIRMATIVE DEFENSE
Violation of Florida Consumer Collection
Practices Act F.S. 559.72, et. seq.

60.

F.S. 559.72(9) provides (in pertinent part):

Prohibited practices generally. In collecting consumer debts, no person shall:
(9) Claim, attempt, or threaten to enforce a debt when such person...assert(s)
the existence of some other legal right when such person knows that the right
does not exist.

61.

The Plaintiff knew that it was collecting a debt it had no right to collect, it falsely
misrepresented to Defendants as to the name of the true creditor.

62.

The Florida Consumer Practices Act (FCCPA, F.S. 559.552) provides protection for
consumers in foreclosure. The FCCPA prohibits the Plaintiff from collecting the underlying
consumer mortgage debt involved in this action by asserting its right to foreclose when the
Plaintiff knows that such right does not exist.

63.

"The FCCPA applies to anyone attempting to collect a consumer debt unlawfully and F.S.
559.72 "includes all allegedly unlawful attempts at collecting consumer claims." White v.
14
Answer and Affirmative Defenses

Federal Financial Corp., 379 So.2d 136, (Fla. 5th DCA 1980) citing Williams v. Streeps
Music Co., Inc., 333 So. 2d 65 (Fla. 4th DCA 1976)" See also, Hart v. GMAC Mortgage
Corporation, 246 B.R. 709 (D. Mass. 2000)(Debtor stated a cause of action under the
FDCPA where continuation of foreclosure proceedings amounted to conduct "the natural
consequence of which was to harass, oppress, or abuse"). Plaintiff, its agents and attorneys
had actual knowledge that the written statements as to alleged ownership of the Defendants
mortgage loan by plaintiff, the written statements as to the assignment of mortgage, the
legal entitlement to demand monies from Defendants and institute foreclosure proceedings
were false statements of material fact which were false when made and known by said
Plaintiff to be false when made.
64.

As a direct and proximate result of the actions of the plaintiff, its agents and attorneys,
the defendants suffered significant damages.
EIGHTH AFFIRMATIVE DEFENSE
Abuse of Process

65.

The Plaintiff knew that it was collecting a debt it had no right to collect.

66.

Plaintiff, its agents and attorneys made an illegal, improper, or perverted use of process
and had an ulterior motive or purpose in exercising the illegal, improper or perverted
process. Plaintiff, its agents and attorneys had no legal justification to bring an action to
try to foreclose upon Defendants property and Defendants were injured as a result of the
actions of plaintiff, its agents and attorneys.
NINTH AFFIRMATIVE DEFENSE
Lack of Capacity

67.

The Plaintiff has not identified what it is, how it has legal existence, what N.A. in its
name means, where its principal place of business is located and that it is registered to do
business in the State of Florida.

68.

Plaintiff has failed to properly plead, describe or identify its legal identity, authority and
capacity to sue and therefore show the jurisdiction of this court under Fla. R. Civ. P. 1.120.
15
Answer and Affirmative Defenses

Plaintiff failed to attach to its Complaint any documents supporting its contention that it
merged with BAC Home Loans Servicing, LP, or documents demonstrating that BAC
Home Loans Servicing, LP was formerly known as Countrywide Home Loans Servicing,
LP.
69.

A negative averment as to capacity is the normal rule for pleading such issues pursuant to
Florida Rules of Civil Procedure, 1.120(a) and 1.110(b), except when capacity affects
the jurisdiction of the court. Capacity to sue is an absence or a legal disability which
would deprive a party of the right to come into court. 59 Am.Jur.2d Parties, 31, (1971).
This is in contrast to standing which requires that a party have a sufficient interest in the
outcome of litigation to warrant the court's consideration of it's position. Keehn v. Joseph
C. Mackey and Co., 420 So.2d 398 (Fla. App. 4 Dist., 1982).

70.

In Altamonte Hitch & Trailer v. U-Haul, 498 So.2d 1346 (Fla. 5th DCA 1986), the Court
stated:

The general rule is that the body of the complaint, and not the caption, determines who is a party
to the action. Weavil v. Myers, 243 N.C. 386, 90 S.E.2d 733 (1956); Motor Credit Corp. v. Ray
Guy's Trailer Court, Inc., 6 N.J. Super. 563, 70 A.2d 102 (1949); and Morisse v. Billau, 70 Ohio
App. 215, 45 N.E.2d 798 (1941). The naming of an individual or entity in the caption is not a
sufficient basis to warrant inclusion in the action if the party is not mentioned in the body of the
complaint.
TENTH AFFIRMATIVE DEFENSE
Failure to comply with Paragraphs 15 and 20 of Mortgage
71.

Plaintiff failed to provide notice of an assignment of the Mortgage loan or change of the
loan servicer. Paragraphs 15 and 20 of the mortgage provide that the Lender must provide
notice of an assignment of the mortgage. Plaintiff failed to provide that notice in violation
of paragraphs 15 and 20 of the Mortgage.
Eleventh Affirmative Defense
Failure to comply with Florida Statute 559.715

72.

Plaintiff failed to provide notice of an assignment of the Mortgage loan or change of the
loan servicer. Florida Statutes section 559.715 provides An assignee of a mortgage and
note must give the debtor written notice of such assignment within thirty (30) days after the
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Answer and Affirmative Defenses

assignment.
TWELFTH AFFIRMATIVE DEFENSE
Violation of Federal Truth in Lending Act (TILA), 15 U.S.C. 1641
73.

Plaintiff failed to provide notice of an assignment of the Mortgage loan or change of the
loan servicer. 15 U.S.C. 1641(g) requires:

(1) In general
In addition to other disclosures required by this subchapter, not later than 30 days after the date
on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor
that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer,
including
(A) the identity, address, telephone number of the new creditor;
(B) the date of transfer;
(C) how to reach an agent or party having authority to act on behalf of the new creditor;
(D) the location of the place where transfer of ownership of the debt is recorded; and
(E) any other relevant information regarding the new creditor.
74.

Plaintiff, its agents and attorneys failed to provide Defendants with notice of an
assignment of the Mortgage or change of the loan servicer. in violation of 15 U.S.C.
1641(g).
THIRTEENTH AFFIRMATIVE DEFENSE
Lack of Notice of Assignment, Sale or Transfer of Servicing
[24 C.F.R. 3500.21]

75.

Plaintiff failed to provide notice of an assignment of the Mortgage loan or change of the
loan servicer. The servicing of the subject mortgage loan had changed and no notice of a
change of the servicer was provided by the Plaintiff or its predecessors to the Defendants as
required by 24 C.F.R. 3500.21(d), which provides:

Notices of Transfer; loan servicing. (1) Requirement for notice. (i) Except as provided in this
paragraph (d)(1)(i) or paragraph (d)(1)(ii) of this section, each transferor servicer and transferee
servicer of any Mortgage servicing loan shall deliver to the borrower a written Notice of
Transfer, containing the information described in paragraph (d)(3) of this section, of any
assignment, sale, or transfer of the servicing of the loan. The following transfers are not
considered an assignment, sale, or transfer of Mortgage loan servicing for purposes of this
requirement if there is no change in the payee, address to which payment must be delivered,
account number, or amount of payment due:
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Answer and Affirmative Defenses

(A) Transfers between affiliates; (B) Transfers resulting from mergers or acquisitions of
servicers or subservicers; and (C) Transfers between master servicers, where the subservicer
remains the same.
....
(2) Time of notice. (i) Except as provided in paragraph (d)(2)(ii) of this section: (A) The
transferor servicer shall deliver the Notice of Transfer to the borrower not less than 15 days
before the effective date of the transfer of the servicing of the Mortgage servicing loan; (B) The
transferee servicer shall deliver the Notice of Transfer to the borrower not more than 15 days
after the effective date of the transfer; and (C) The transferor and transferee servicers may
combine their notices into one notice, which shall be delivered to the borrower not less than 15
days before the effective date of the transfer of the servicing of the Mortgage servicing loan.
(ii) The Notice of Transfer shall be delivered to the borrower by the transferor servicer or the
transferee servicer not more than 30 days after the effective date of the transfer of the servicing
of the Mortgage servicing loan in any case in which the transfer of servicing is preceded by:
(A) Termination of the contract for servicing the loan for cause; (B) Commencement of
proceedings for bankruptcy of the servicer; or (C) Commencement of proceedings by the
Federal Deposit Insurance . . .
FOURTEENTH AFFIRMATIVE DEFENSE
Lack of Notice of Breach (Default) and Acceleration
76.

The plaintiff failed to provide the Defendants with either notice of breach or adequate
notice of breach as required by paragraph 6 and 7 of the Note and paragraphs 15, 18, 19, 20
and 22 of the Mortgage and as required by 24 C.F.R. 3500.21 and 24 CFR 203.604.

77.

The issue of a lack of a notice of default is a material fact sufficient to defeat summary
judgment. Morrison v. U.S. Bank, N.A., 36 Fla. L. Weekly D1646 (Fla. 5th DCA July 29,
2011) A default notice from the "lender" is a condition precedent prior to filing a
complaint. Amedas v. Brown, 505 So.2d 1091 (Fla. 2nd DCA 1987); Dykes v Trustbank
Savings, F.S.B., 567 So.2d 958 (Fla. 2nd DCA 1990); Gomez v. American Savings and
Loan Ass`n, 515 So.2d 301 (Fla, 4th DCA 1987); Rashid v. Newberry Federal Savings and
Loan Association, 502 So.2d 1316 (Fla. 3rd DCA 1987); Rashid v. Newberry Federal
Savings and Loan Association, 526 So.2d 772 (Fla. 3rd DCA 1988).
FIFTEENTH AFFIRMATIVE DEFENSE
Lack of Default

78.

Plaintiff has not and cant show default as required pursuant to the Note and Mortgage.

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Answer and Affirmative Defenses

SIXTEENTH AFFIRMATIVE DEFENSE

Failure to Produce Original Promissory Note
79.

Plaintiff does not have the right to enforce the original promissory note, nor does it have
the original promissory note.

80.

A person seeking enforcement of a lost, destroyed or stolen instrument must first prove
entitlement to enforce the instrument when the loss of possession occurred, or has directly
or indirectly acquired ownership of the instrument from a person who was entitled to
enforce the instrument when loss of possession occurred. Further, he must prove the loss
of possession was not the result of a transfer by the person or a lawful seizure; and the
person cannot reasonably obtain possession of the instrument because the instrument was
destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an
unknown person or a person that cannot be found or is not amenable to service of process.
673.3091 Fla. Stat. (2011).
SEVENTEENTH AFFIRMATIVE DEFENSE
Estoppel and F.S. 673.3051

81.

The Defendants also assert the defense of Estoppel and Florida Statutes section 673.3051
for a different reason. The subject promissory Note is non-negotiable paper. The Plaintiff
is not a holder in due course and on information and belief, the original promissory Note is
lost or stolen. Florida law provides An obligor is not obliged to pay the instrument if the
person seeking enforcement of the instrument does not have rights of a holder in due
course and the obligor proves that the instrument is a lost or stolen instrument.
673.3051(3), Fla. Stat. (2011)

82.

The assignee of defaulted negotiable paper occupies the status of the holder of a
nonnegotiable instrument. As to those occupying this status, the rule appears to be: There
cannot be a holder in due course of a nonnegotiable instrument, and the doctrine of
protecting a bona fide holder for value without notice and before maturity does not apply,
no matter how widely or how narrowly the instrument may miss being negotiable or how
the parties themselves may have regarded the instrument. Guaranty Mortg. & Ins. Co., v.
19
Answer and Affirmative Defenses

Harris, 182 So. 2d 450, 453 (1st DCA 1966) (emphasis added). This concept is codified
in 673.3021(1)(b)(3) which defines a Holder in Due Course as one who takes an
instrument Without notice that the instrument is overdue or has been dishonored or that
there is an uncured default with respect to payment of another instrument issued as part of
the same series;.
EIGHTEENTH AFFIRMATIVE DEFENSE
Violation of Contractual Application of Payments
Rendered by Defendants and Illegal Charges Added to Debt
83.

Defendants assert and allege all other facts referenced in the previous affirmative
defenses and that plaintiff has added illegal charges to the alleged debt owed by the
Defendants.

84.

Additionally, on information and belief, plaintiff illegally added charges and fees to the
alleged debt owed by the Defendants including but not limited to interest, late charges, title
search expense, attorneys fees and other necessary costs.

85.

Defendants hereby allege the Plaintiff misapplied the payments which resulted in an
incorrect amortization and the imposition of unwarranted fees and costs. Specifically,
Defendants allege the Plaintiff, by use of its proprietary computer software and the
proprietary computer software of each and every predecessor servicer, first applied
payments to fees and costs assessed on this mortgage loan, then to principal, accrued
interest and escrowed costs in violation of the Mortgage resulting in an incorrect
amortization of this loan when fees and costs were assessed.

86.

Defendants hereby demand a full disclosure of the proprietary computer software, its
methods, processes, prioritization, and application of all payments rendered by the
Defendants on the mortgage loan during the entire life of the mortgage loan. Further,
Defendants demand a corrected application of each and every payment in compliance with
the contractual priority of the funds rendered by the Defendants on this account.
NINETEENTH AFFIRMATIVE DEFENSE
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Answer and Affirmative Defenses

Failure to Include Necessary Party

87.

The Plaintiff is not the real party in interest in that it is not the owner and holder of the
Note and Mortgage nor is it an agent of the owner and holder of the Note and Mortgage.
The Plaintiff does not own and hold (have a right to enforce) the Note and Mortgage nor is
it entitled to enforce the Note and Mortgage on behalf of the real owner and holder thereof.
The Plaintiff has not included the real party in interest in this action. See Fund Title Note
22.02.03.
TWENTIETH AFFIRMATIVE DEFENSE
No Equitable Lien/No Payment Supporting Subrogation

88.

Neither Plaintiff or Federal National Mortgage Association paid value for the Note and
Mortgage, and the Note and Mortgage were not gifted to them, thus ensuring Plaintiff and
Federal National Mortgage Association is not entitled to an equitable lien if one is
requested. In the alternative, Plaintiff have been fully compensated by the sale, transfer,
assignment or negotiation of the instrument to an unidentified third party. Therefore,
Plaintiff is not entitled to subrogation.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Collateral Source Payments to Plaintiff

89.

Defendants demand credit for and application of any and all collateral source payments
Plaintiff, its predecessors in interest, co-owners, trust beneficiaries, certificate holders, or
any others associated with this Note and Mortgage 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 (i.e. TARP funds)
assistance on an apportioned basis for loans or groups of loans to which the subject
mortgage loan of the action is claimed.

90.

On information and belief, the Plaintiff purchased, acquired or otherwise received the
right to collect insurance on the subject note and mortgage or was otherwise insured
against all losses and costs associated with enforcing the subject note and mortgage in the
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Answer and Affirmative Defenses

event of a default. On information and belief, the Plaintiff has actually collected full
payment on the subject note and mortgage or will receive full payment for any delinquency
including fees and costs association with enforcement of the note and mortgage. Thus, any
further award of damages to the Plaintiff would result in a windfall to the Plaintiff.
TWENTY-SECOND AFFIRMATIVE DEFENSE
Unjust Enrichment
91.

On information and belief, if the Plaintiff owns the Note and Mortgage, as Plaintiff
claims, then Plaintiff has insurance, whether denominated default swap insurance, FHA
insurance or otherwise, which has either fully compensated the Plaintiff for any funds
issued to the Defendants or will be fully compensated for any funds issued to the
Defendants. Therefore, a judgment of foreclosure and release of any proceeds to the
Plaintiff post-judicial sale will result in an unjust enrichment to the Plaintiff. Alternatively,
if Federal National Mortgage Association owns the Note and Mortgage, as Plaintiff claims,
then an insurance payment was made to Federal National Mortgage Association and the
Note and Mortgage were subsequently transferred to Federal National Mortgage
Association by the Office of the Comptroller of the Currency (OCC) and there should be
evidence to support proof of payment of insurance and transfer by the OCC. However,
there is no evidence of payment of insurance or transfer of this particular mortgage loan by
the OCC because Federal National Mortgage Association does not own the Note and
Mortgage.
TWENTY-THIRD AFFIRMATIVE DEFENSE
Failure to Post Cost Bond
[F.S. 57.011]

92.

A check of the State of Florida Secretary of State website www.sunbiz.org shows that
Plaintiff is not registered to do business in Florida. Plaintiff has failed to comply with
Florida Statutes section 57.011 and has not posted a cost bond. When a nonresident
plaintiff begins an action [] he or she shall file a bond with surety to be approved by the
clerk of $100, conditioned to pay all costs which may be adjudged against him or her in
said action in the court in which the action is brought. On failure to file such bond within
30 days after such commencement or such removal, the Defendants may, after 20 days
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Answer and Affirmative Defenses

notice to plaintiff (during which the plaintiff may file such bond), move to dismiss the
action or may hold the attorney bringing or prosecuting the action liable for said costs and
if they are adjudged against plaintiff, an execution shall issue against said attorney.
57.011 Fla. Stat.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Failure to comply with trust registration law
93.

On information and belief, Plaintiff is acting as a trustee. Plaintiff has failed to comply
with Florida Statute 660.27, which provides, in pertinent part:
(1)

94.

Before transacting any trust business in this state, every trust company and
every state or national bank or state or federal association having trust powers
shall give satisfactory security by the deposit or pledge of security of the kind
or type provided in this section having at all times a market value in an
amount equal to 25 percent of the issued and outstanding capital stock of such
trust company, bank, or state or federal stock association or, in the case of a
federal mutual association, an equivalent amount determined by the office, or
the sum of $25,000, whichever is greater. However, the value of the security
deposited or pledged pursuant to the provisions of this section shall not be
required to exceed $ 500,000. Any Notes, Mortgages, bonds, or other
securities, other than shares of stock, eligible for investment by a state bank,
state association, or state trust company, or eligible for investment by
fiduciaries, shall be accepted as satisfactory security for the purposes of this
section.

Additionally, Florida Statute 660.27(2)(a) requires the plaintiff to provide to Floridas

Chief Financial Officer the full legal name of the trust, its federal employer identification
number; principal place of business; amount of capital stock; and amount of collateral
required to be deposited by the trust.

95.

Transacting trust business in the State of Florida includes, but is not limited to the
following: the acquiring, holding and transferring Mortgages on property in Florida;
receiving assignments of promissory Notes; receiving payments from Florida consumers
on Mortgage Notes; enforcing Notes by filing and prosecuting this and other foreclosure
actions; foreclosing on Mortgages; purchasing foreclosed properties at judicial sales; and
owning and selling properties acquired at judicial sales.

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Answer and Affirmative Defenses

96.

A cursory search of the State of Florida Office of Financial Regulation suggests that the
Plaintiff has failed to provide the full legal name of the trust to the State of Florida, and
consequently, has failed to pay the required statutory fee.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
Violation of Federal Fair Credit Reporting Act

97.

Plaintiffs violated the Federal Fair Credit Reporting Act, 15 U.S. C., 1681 et seq. (the
Act) Defendant are consumers as defined by 15 U.S.C. 1681(c) of the Act and a
debtor under Floridas Consumer Collection Practices Act, F.S. 559.55, et. seq.

98.

Defendants applied for and were either denied or delayed credit or caused to pay more for
credit from credit grantors, based in whole or in part, on inaccurate, misleading, adverse
information contained in the credit reports of TransUnion, Equifax and Experian, placed
there and published there by plaintiffs collection efforts on the subject Mortgage loan.

99.

These negative credit references in the credit reports indicated the Defendants failed to
make payments on the subject Mortgage loan and they constituted violations of the
Federal Fair Credit Reporting Act as plaintiff knew at the time it made the negative reports,
that its published statements were false and that it had no factual basis or authority to
publish the statements. The statements plaintiff made were malicious, willful, wanton and
showed a complete disregard for the Plaintiffs statutory federal rights. The written
publications by constitute libel per se. The verbal publications constitute slander per se.

100.

Defendants have suffered extreme mental anguish, a loss of credit reputation, a loss of
ability to obtain credit and pecuniary damages. The losses are either permanent or
continuing and Defendants will suffer losses in the future.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
Failure to Verify the Complaint

101.

Florida Statutes section 92.525 requires that a verification actually identify the document
being verified. This statute provides in part:

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Answer and Affirmative Defenses

Verification of documents; perjury by false written declaration, penalty.

(1)When it is authorized or required by law, by rule of an administrative agency, or by
rule or order of court that a document be verified by a person, the verification may be
accomplished in the following manner:
(a)Under oath or affirmation taken or administered before an officer authorized under
s. 92.50 to administer oaths; or
(b)By the signing of the written declaration prescribed in subsection (2).
102.

On February 11, 2010, the Florida Supreme Court amended Fla. R. Civ. Pro. 1.110(b) to
read:
[w]hen 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 shall include an oath, affirmation, or the following
statement: Under penalty of perjury, I declare that I have read the foregoing,
and the facts alleged therein are true and correct to the best of my knowledge
and belief.

103.

The Supreme Court noted that:

[t]he 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, (Feb. 11,
2010).

104.

On December 9, 2010, the Supreme Court clarified its position in Case No. SC09-1579,
In re: Amendments to the Florida Rules of Civil Procedure-Form (Final Judgment of
Foreclosure) and stated:
Along with the amendments to form 1.996(a), rule 1.110(b) was amended to require
verification of mortgage foreclosure complaints involving residential real property.
One of the primary purposes of this amendment was to ensure that the allegations in
the complaint are accurate. In light of recent reports of alleged document fraud and
forgery in mortgage foreclosure cases, this new requirement is particularly important.
(At pages 2 and 3)

105.

Plaintiff is Bank of America, N.A. The Complaint is verified by Edwina Hitchin,

Assistant Vice President of Bank of America, N.A. In paragraph 5 of the Complaint,
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Answer and Affirmative Defenses

Plaintiff claims that Federal National Mortgage Association owns the mortgage loan.
Plaintiff is not the real party in interest, but is acting as servicing agent for the real party in
interest. Rule 1.210(a) provides that an agent may prosecute an action in the name of
another. In Elston/Leetsdale, LLC v. CWCapital Asset Mgmt. LLC (Fla. App., 2012), the
Court stated that a servicer may be considered a party in interest to commence legal action
as long as the trustee joins or ratifies its action. In re Rosenberg, 41,4 B.R. 826 (Bankr.
S.D. Fla. 2009).
106.

Plaintiff did not attach to its Complaint any evidence to demonstrate that Federal National
Mortgage Association either joined in or ratified the action. Wherefore, the Complaint has
not been verified.
CLAIM FOR ATTORNEYS FEES

107.

Defendants hereby request they be awarded attorneys fees pursuant to the terms of the
promissory note and mortgage and also pursuant to section 57.105(7), Florida Statutes
(2011).
WHEREFORE CLAUSE

108.

Wherefore, Defendants demand judgment against Plaintiff and requests the court deny
Plaintiffs requested relief of foreclosure, and award reasonable attorneys fees and costs to
Defendants; order discharge, release or cancellation of the alleged mortgage and send
Plaintiff forthwith without day.
June 21, 2012

__________________________
ATTORNEY

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Answer and Affirmative Defenses