IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA BANK OF NEW YORK

AS SUCCESSOR TO JP MORGAN CHSE BANK, NATIONAL ASSOCIATION AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF STRUCTURED ASSET MORTGAGE INVESTMENTS II TRUST 2006-AR7, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2006-AR7, Plaintiff, vs. MANUEL GONZALEZ, ET AL. Defendants. ________________________________________/ ANSWER AND AFFIRMATIVE DEFENSES COMES NOW the Defendant, Manuel Gonzalez, pro se, and files this Answer and Affirmative Defenses in answer to the Complaint and states as follows: 1. Admitted for jurisdictional purposes only. CASE NO. 09-CA-070222 JUDGE JOSEPH C. FULLER

To dismiss Count I of the Complaint for an action to foreclose a Mortgage on Real Property located in Lee County, Florida for failure to state a cause of action because: (a) Florida Rule of Civil Procedure 1.130 (a), with respect to a Complaint, provides in relevant part that:

Instruments Attached. All bonds, notes, bills of exchange, contracts accounts, or documents which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. [emphasis added]. (b) Plaintiff does not attach a copy of any document pursuant to FRCP 1.130 proving that it is either the successor in interest to Countrywide Bank, NA or that an assignment from

Countrywide Bank, NA to the Plaintiff has been recorded in the public records confirming that the Plaintiff owns and holds the Note and Mortgage in question; and thus, lacks standing to proceed in this action against the Defendants. (c) Furthermore, in accordance with Florida Rules of Civil Procedure 1.140, failure to attach an instrument upon which a claim is based constitutes failure to state a claim upon which relief may be granted, warranting dismissal. Sachse v. Tampa Music Co., 262 So.2d 17 (Fla. 2d DCA 1972) (requiring instruments upon which cause of action was based be attached to the pleadings), see also Reinscbmidt v. Crosby, 123 So. 755 (Fla. 1929). In the case at bar, no such documents or instruments were attached to the Complaint, and for the reasons discussed above, Plaintiffs Complaint fails to state a cause of action and must be dismissed. WHEREFORE, the Defendants GONZALEZ move this Court to dismiss Count I of the Complaint for failure to state a cause of action. 2. To dismiss the Complaint for an action to foreclose a Mortgage on Real Property located in Lee County, Florida for failure to state a cause of action because: (a) Defendants home is encumbered by a mortgage and promissory note made with the originator and mortgagee/lender COUNTRYWIDE BANK, N.A., is the property at issue in this foreclosure action. Plaintiff trust entity BANK OF NEW YORK AS SUCCESSOR TO JP MORGAN CHSE BANK, NATIONAL ASSOCIATION AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF STRUCTURED ASSET MORTGAGE INVESTMENTS II TRUST 2006-AR7, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AR7, also known as a Special Purpose Vehicle (SPV) became an alleged successor in interest to the originator and issued securities collateralized by the mortgage under a master pooling and servicing agreement by which all legal and equitable interest was transferred to the certificate holders. Plaintiff trustee is acting in the capacity of the alleged representative for and nominee of the certificate holders for the purposes of foreclosure of the property because the loan is allegedly in default. However, it is impossible for the Plaintiff trustee to be the holder or owner of the note. (b) Since the mortgage was securitized, the mortgage was rendered unenforceable. Securitization of the mortgage created restrictions upon modification of the mortgage which had not been approved by the mortgagor. Securitization also converted the mortgage note from an alienable, transferable instrument which was and could be sold into an instrument which cannot be sold, transferred or alienated, without amending the terms and conditions of the mortgage. In either case, the action renders the mortgage unenforceable as a matter of law. Plaintiff trust lacks standing because Plaintiff does not own or hold the note and cannot have the power and authority to represent the actual owners of the note, as a matter of law. (c) Additionally, the securitization of the mortgage in question constitutes a conversion of the asset rendering it null, void and unenforceable. The actual holder of the note of a pass through trust has no legal or equitable interest in the securitized mortgages. The way the holder profits from the conversion is from fees collected from a foreclosure action. The certificate holders, guarantors and mortgage insurers bear the losses. Foreclosure avoids litigation from disgruntled certificate holders who could claim a mortgage modification improperly resulted in a financial loss. By separating the incidence of loss from the authority to foreclose, the original note has

been altered resulting to a change to the mortgage without the consent of the mortgagor. The conversion of the mortgage to mortgage backed securities renders the mortgage unenforceable. The interests of the defendants as mortgagor are adversely and materially affected by these changes. 3. Furthermore, the Plaintiff does not have standing to sue and the complaint must be dismissed pursuant to Rules 1.210(a), 1.130(a) and 1.1 40(b)(7) of the Florida Rules of Civil Procedure because the Plaintiff acting as an SPV is doing business in Florida as an unregistered trust in violation of Florida law. (a) The plaintiff claims to be acting on behalf of a mortgage trust. The mortgage trust has issued certificates to investors as public securities. It has issued certificates to investors secured by a Florida mortgage. It is not an express trust under the Florida Trust Code. The Trust is a common law declaration of trust under Section 609 of Florida Statutes. The Trust is an association of two or more persons for the purpose of transacting business in Florida. Section 609.01 id. The trust, before offering securities in the form of certificates to investors, was required to file with the Secretary of State a true and correct copy of the Declaration of Trust under which the trust proposes to conduct its business. 609.02 Filing a declaration of trust.--Every such organization organized for the purpose of transacting business in this state, or organized in this state for the purpose of transacting business elsewhere, which intends to sell or offer for sale any units, shares, contracts, notes, bonds, mortgages, oil or mineral leases or other security of such association shall, prior to transacting any such business, file with the Department of State a true and correct copy of the declaration of trust under which the association proposes to conduct its business, which copy shall be sworn to, as being a true and correct copy, by the chair of the board of trustees named in such declaration of trust. When such copy shall have been filed with the Department of State it shall constitute public notice as to the purposes and maimer of the business to be engaged in by such association. The Department of State, prior to the issuance of the certificate by it, shall collect from the said association a filing fee of $350, which fee shall be paid by it into the general fund of the state. Upon the filing of the copy of the declaration of trust and the payment of the filing fee, in compliance with s. 609.02, the Department of State shall issue to the trustees named in the said declaration of trust a certificate showing that such declaration of trust has been duly filed in its office; whereupon, such association shall be authorized to transact business in this state; provided that all other applicable laws have been complied with. Section 609.3 id. (b) The trust has failed to file its declaration of trust, not paid the $3 50,00 fee and not obtained a certificate from the Department of State and has commenced to transact its business in Florida. Upon the filing of the copy of the declaration of trust and the payment of the filing fee, in compliance with s. 609.02, the Department of State shall issue to the trustees named in the said declaration of trust a certificate showing that such declaration of trust has been duly filed in its office; whereupon, such association shall be authorized to transact business in this state; provided that all other applicable laws have been complied with. Section 609.3 id. (c) Accordingly, the Trust lacks standing to have this motion enforced in the courts of Florida and the persons operating the trust in violation of Chapter 609 have committed a third degree felony under Florida law. Section 609.06 (d) Arguably by registering the security with the Securities and Exchange Commission, the trust and its officials are exempted from the requirements of Section 609.05 to obtain a permit to sell securities by the preemption created by Securities and Exchange Commission authorities and

other related Federal authorities. However such an exemption does not exempt the trust from the other requirements of Chapter 609 with which the trust has failed to comply. (e) Florida law requires the filing. Accordingly, plaintiff lacks standing to seek foreclosure on behalf of a trust doing business in Florida that has not complied with the registration requirements of Florida law. OHanlon v. Herndon, 5 So.3d 723 (Fla. App. 2 Dist. 2009). 3. To dismiss Counts I and II of the Complaint for failure to state a cause of action and for failure to satisfy the requirements of the Fair Debt Collection Practices Act as amended; and in support thereof further states: (a) According to 15 U.S.C. Section 1692G of the Fair Debt Collection Practices Act; as amended reads in relevant part: (d) Legal Pleadings -- A communication in the form of a formal pleading in a civil action shall NOT be treated as an initial communication for purposes of subsection (a). Accordingly, Plaintiff has failed to show that it has complied with all conditions precedent to the acceleration of this Mortgage and Note and to foreclose of the Mortgage for failure to provide proof that it has noticed the Defendants in accordance with the Fair Debt Collection Practices Act. WHEREFORE, the Defendants move this Court to dismiss Counts I of the Complaint for failure to satisfy the requirements of the Fair Debt Collection Practices Act as amended and for failure to state a cause of action. Accordingly, Plaintiff is estopped in maintaining an action to foreclose on the subject Promissory Note and Mortgage CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been delivered via regular U.S. Mail to William Lacroix, Law Offices of David JJjrn, P.A., 900 South Pine Island Road, Suite 400, Plantation, Florida 33324-3920 on this IS day of March, 2010. Michael Villalobos, Esq. 1950 Courtney Drive, Suite 203 Fort Myers, Florida 33901 Fla. Bar No. 0937126