Confronting the Ridicule of Counsel for the Bank

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See also these articles:

The Right to Foreclose & the UCC

Weinstein Article NJ Law Journal

SearchforNegotiability Ronald Mann (1)

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If you file a claim or affirmative defenses along with your answer denying everything, you will often be met with a motion to strike the affirmative defenses or claim. The reason is simple, once the court agrees that the matters you alleged in your pleading are in issue, you are automatically entitled to discovery on those issues. And that is why I continue to say that the more aggressive you are in the beginning of litigation the more likely you are to get win or get a settlement early in the process. Pleading lack of consideration raises the issue of what happened with the money? Once that is in issue, your discovery questions and requests can be directed at that. Once the foreclosers are forced to open up their books and records, my experience is that they will fold. They generally don’t have a cancelled check or wire transfer receipt from anyone in their “chain.”

Here is what was submitted in one case in opposition to the motion to strike the affirmative defenses of the homeowner:

 

  1. Counsel for the Plaintiff wants this court to ignore the defenses of the Defendants on the basis that the theory of the case advanced by said defendants is “Absurd.”
  2. Defendants agree that there are patent absurdities and unexplained mysteries in this case.
  3. Plaintiff has alleged that it is a “holder” and has not alleged that it is a “holder in due course.” And it has not alleged the source of its authority to claim “rights to enforce.” By definition this means they admit that Plaintiff is not a purchaser for value, in good faith without knowledge of the Borrower’s defenses.
  4. If Plaintiff (or anyone whom Plaintiff represents) actually purchased the loan for value, in good faith and without knowledge of the borrower’s defenses, they would say so. That would make them a Holder in Due Course. Florida statutes protect the Holder in Due Course allocating the risk of signing documents without receiving consideration to the borrower. It would end the debate — eliminating nearly all of the borrower’s defenses by definition. So where is a holder in due course in this court proceeding?
  5. Defendants concede that anyone who signs a document assumes the risk of liability (even if they didn’t get the loan) that it might be used as a negotiable commercial instrument (cash equivalent) and that if an innocent buyer of the loan documents who was acting in good faith without the knowledge of the borrower’s defenses acquires such loan documents those documents can be enforced and that the borrower is limited in potential remedies to pursue satisfaction from the loan originators, mortgage broker etc.
  6. But Plaintiff is not alleging it is an innocent buyer. It is not even disclosing for whom the  the loan documents are being enforced. By trick of logic, Plaintiff wants this court to “assume” or “presume” that some actual creditor or owner of the loan has given the Plaintiff the right to enforce. But Plaintiff is not providing any allegation or proof, despite numerous requests as detailed in the affirmative defenses, as to the identity of the real creditor nor any facts or documents that how show the “real creditor” is imbued with the status of holder in due course,, creditor or “owner” of the loan.
  7. Instead they allege status of “holder” without any clarity of how they acquired the loan documents nor the basis of their authority to enforce the loan documents.
  8. Counsel for the Plaintiff wants to be treated as a holder in due course where the defenses of the homeowner are ignored regardless of whether they have merit. Counsel is attempting to elevate the status of the Plaintiff to treatment as a holder in due course, while the only allegation is the the Plaintiff is a “holder.”
  9. Being a holder does not automatically entitle anyone to enforce a document. If it were otherwise any delivery service would be able to stop by the courthouse and file a lawsuit on the papers they are carrying. A “holder” must have “rights to enforce.” And these rights come from the actual owner of the loan, whom they refuse to disclose.
  10. The “absurd” conclusion that there was no consideration at the “closing” of the “loan” arises from the the perfectly logical progression of reasoning stemming from the lack of consideration at every step in the chain, upon which Plaintiff relies. If there does exist a transaction in which the loan was (a) funded by the designated lender and (b) transferred for value at each step of the “assignment” process, then it is impossible for SOMEONE not to be a holder in due course. But the Plaintiff refuses to disclose in its pleading the identity of the holder in due course or anyone else designated as the creditor or owner of the loan.
  11. If the Plaintiff wants this court to enforce the loan documents, by its own pleadings it does so as a mere “holder.” That means that Plaintiff is subject to the defenses of the borrower arising from the closing. Plaintiff stands in no better shoes than the “originator” of the loan whom Defendants allege was not the actual lender.
  12. If the Plaintiff wants this court to to enforce the loan documents, it must prove that it has the actual loan documents, and it must prove that it has the right to enforce those documents not by presumption but with facts. And Defendants are permitted to raise the issue of consideration and inquire in discovery as to the reality of the transaction at the time of the loan.
  13. If Plaintiff wishes to state that it has the right to enforce the loan documents, even though it is a mere holder, then it must have been given those rights to enforce from the actual creditor. That is a step that Plaintiff seeks to avoid for reasons that will be flushed out in discovery and at trial. Defendants take the position that the their is no real creditor or real owner of the loan in any sense of the words, in the entire chain of “ownership” relied upon by the Plaintiff. If that is untrue, then Plaintiff can simply provide proof of payment at each step of the original transaction and each step in which there was an alleged transfer.
  14. Plaintiff is attempting to rely upon presumptions which would lead to a conclusion that is contrary to the actual facts.
  15. The presumptions upon which Plaintiff intends to rely, as is obvious from their complaint, would lead the court to conclude that there was consideration at the “closing” and each “transfer” of the loan. Such presumptions are rebuttable for the precise reason that they exist for the sake of expediency. Ordinarily, before the era of “securitization” such presumptions reflected the actual facts. In this case, they do not.
  16. Defendants need not prove their case at this stage of litigation. They have raised bona fide issues. If the issues raised as defenses are completely devoid of any basis, then the court has remedies available. Defendants have requested proof of payment to support the closing documents and each “transfer” of the loan. Such requests are found in the fact pattern described in the affirmative defenses. Plaintiff refuses to show such proof, betting on this Court’s need for an expeditious result.
  17. The defensive pleading of the Defendants are sound and sustainable, as pled, because they must be taken as true for purposes of the hearing on the Plaintiff’s Motion to Strike.

Courts Continue to Ratify Theft of Money and Documents by Banks

An ordinary individual finds a sack of promissory notes, and you might expect him to try to locate the owners of those notes. After all they are the equivalent of cash. But the banker sells the stolen notes with false assignments, insures them, gets them guaranteed with payment proceeds to himself and then settles with the lender for pennies on the dollar. Then the banker sues to collect on the stolen notes and wins. Except in this case the banker created the sack, created the notes, falsified the payee and inflated the amount due. The Banker has successfully stolen the money from the lender and stolen the notes from the lender. Despite 7 years of active litigation the judiciary has still failed to pick up on this scenario. Neil Garfield, http://www.livinglies.me

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I was responding to an email  from a lawyer who was wondering if a grievance could be filed against judges who failed to maintain judicial stability and demeanor. I ended up on a rant, and made it into an article. My conclusion is that a grievance is probably not he right venue, but judges should be a little more curious about what really went on in the mortgage meltdown.

I have been thinking about this sort of thing for a while now. The cases are prejudged not only individually by each judge but also because the judges speak with each other, and feed off of the decisions of other trial judges. Adding to this is the bias shown in Appellate courts.
This amounts to several presumptions against the homeowner, who is a best a pawn and at worst a victim of fraud just like the torrent of lawsuits and settlements have been stated by MBS investors, insurers, CDS counterparties, GSE guarantors, law enforcements and regulatory agencies — all saying the same thing: FRAUD (not breach of contract etc.).
Frustration is rising amongst homeowners and attorneys who represent their clients in a kangaroo court will the rules of pleading and the rules of evidence are turned upside down to give the thief the products of his fraudulent scheme.
First is the assumption behind the question “did you get the loan?” This is a fundamental question but the same judge who asks the borrower that question fails to require the foreclosing party that there WAS a loan from anyone in their paper trail. And the same issue applies to acquisition of loans after some bank with a charter makes the loan and then sells it to a “successor in interest.” The reason for this gross failure of the judiciary though is simply because they have never known a scheme like the one perpetrated by the banks this time.
Starting with that premise, the judiciary considers defenses by homeowners as perhaps technically right but leading to an unjust result— the loss of money by a bank who loaned money and who will now lose money if the homeowners’ defenses are applied. The logic is inexorable — it leads to the inevitable conclusion that the judiciary must put on a show about due process, but we all know that the foreclosure is inevitable. The corollary is that the reason the court dockets are clogged are because even though the loan was received by the borrower the homeowners are perpetrators a vast abuse of there judicial system.
In turn, the courts view foreclosure defense lawyers as something less than “real lawyers” and many judges have lost patience with both pro se litigants and lawyers defending the rights of homeowners. In your case, you were genuinely engrossed in a medical problem bunt the judge went ahead anyway because the judge saw the whole thing as “harmless error.” The foreclosure would, in the end, proceed, no matter what you said or what your clients or experts would proffer as facts in testimony.
The result is inexplicable rulings by trial courts and appellate courts. Underlying their opinions, rulings and orders is the basic premise that the homeowner received a loan. And so your judge called you a liar and refused to continue the case despite your inability to appear due to disability. Is this a case where a letter should be sent to the Judicial Qualification Committee or the Florida bar stating a grievance? Yes, as long as you realize that whoever reviews this is going to be suffering from the same delusion that permeates the rest of hedge judiciary. But it is of course relevant that the judge called you a liar, which goes far beyond the subject case at hand, and amounts to slander as well as prejudgment and bias. Perhaps a letter to the judge describing your reputation in the courts and the damage of having a judge call you a liar would cause the judge to reverse the judge’s opinion of you and apologizing for taking her remarks so far.
But the essential point remains the same. The issue is the unfortunate absence of support for basic pleading practice. Just look at the form pleadings published by the Florida Supreme Court, or look at the complaints filed by banks and credit unions for foreclosure. There is a requirement when you plead to collect on a loan to plead that you made the loan. In actions on a note, the requirement that the plaintiff allege financial injury is right there in the the Florida forms.
The real reason why the court dockets are clogged is because judges insist in ignoring basic pleading practice: the allegation of the existence of a debt owed by the Defendant to the Plaintiff and/or the allegation that financial injury has been suffered by the Plaintiff as a result of the failure of the Defendant/homeowner to make the payments set forth in the note.
The second question is whether the homeowners signed the note. The answer in most cases is yes. So what defenses will ultimately have merit in defending the foreclosure?
Even most foreclosure defense attorneys are far too timid in attacking these delusions maintained by the judiciary. They fear looking foolish and the embarrassment of losing repeatedly. They miss the first attack completely — that no, the homeowner did NOT receive a loan from the foreclosing party or anyone in the he chain in most cases. The problem is that their motion to dismiss does not force this issue. the result is that the existence of a debt wherein the homeowner became a debtor TO THE FORECLOSING PARTY is successfully avoided by the banks, as is the requirement of alleging financial injury.
The effect of this is to prevent the homeowner to enter an answer that denies the loan, denies the acquisition of the loan in any sale, and denies financial injury.
Instead by failing to require the banks to make the allegations that are required by the Supreme Court in its published forms, the homeowner is unfairly is unfairly required to raise the issues in affirmative defenses. The pernicious result of that is that the homeowner is required to prove a negative.
Discovery requests are met with fierce resistance by the banks, who usually run out the clock by the time the motion for summary judgment is heard or the the time that the trial occurs. The homeowner is therefore forced to prove a negative, when the rules require the banks to prove a positive fact that is based upon information that is ONLY accessible by the plaintiff.
The reason why the complaints do not allege the existence of a debt arising from receiving a loan from the foreclosing party or any predecessor in the chain of paper is that there is no such debt. The reason why the foreclosing party does not allege financial injury is (a) that there is no such financial injury and (b) the opening of this issue for discovery would require that all accounts be settled and resolved to determine the balance, if any, owed by the homeowner to anyone. 
The reason why lawsuits and regulatory actions allege that the broker- dealer investment banks committed fraud is that they intentionally lied and used the investor money to their own benefit. And the reason as why the investors, agencies, insurers, credit default swap counter parties and government sponsored guarantors are alleging fraud — and stating that the closing papers with the borrowers and the mortgage bonds are “unenforceable obligations” and “defective instruments” is because that is an accurate description. And the reason the banks are settling those cases and facing criminal prosecution is because they know that the paperwork is legally indefensible and unenforceable against borrowers.
By some twisted logic, thousands of judges, tens of thousands of lawyers, and millions of owners who lack the information and understanding of this massive fraud, the fraud at one end of the stick (sale of fraudulent mortgage bonds) is ignored on the the other end of the same stick (foreclosure of fraudulent Foreclosures on fatally defective STOLEN notes and mortgages). There was no debt in most of the cases and closings where documents were signed. There is no loss or financial injury to a party who has never funded the origination or acquisition of a loan.
The only debt ever created in most instances was from the homeowner directly to the pension funds and other investors who were left with no enforceable claim to enforce valid notes and mortgages. The only debt due in all cases is the amount due to the investors. Allowing the banks to enforce the debts on paperwork that is evidence of theft is a failure of the judicial system.
The dockets would be cleared with the questions “why have you not alleged a debt owed to you and financial injury?” This would establish jurisdiction or the lack of it at the outset. Unable to prove the debt, and being required to prove it because they alleged it, the banks would shrink from foreclosure and attempt to resolve the issues through non-judicial means.

 

Answer, Affirmative Defenses and Counterclaim by April Charney

IN THE CIRCUIT COURT OF THE
FOURTH JUDICIAL CIRCUIT, IN AND
FOR DUVAL COUNTY, FLORIDA

CASE NO.:16-2007-CA-00852-XXXX-MA
DIVISION: CV-D

DEUTSCHE BANK NATIONAL TRUST COMPANY
Plaintiff,
vs.

ERICO LOGAN, ET AL,
Defendant.
______________________________/

DEFENDANTS ERICO LOGAN AND GLORIA BROOK’S ANSWER
AFFIRMATIVE DEFENSES; COUNTERCLAIMS AND DEMAND FOR JURY TRIAL

COME NOW, the separate Defendants and for their answer, affirmative defenses, counterclaims and demand for jury trial , state:
COUNT I
Denied that the plaintiff has stated a cause of action to reestablish a promissory note pursuant to F. S. 673.3091.
Admit execution of note, deny that the note was executed and delivered in favor of plaintiff or plaintiff’s assignor.
Denied. The plaintiff has not stated a cause of action to reestablish a promissory note pursuant to F. S. 673.3091.
Denied. The plaintiff has not stated a cause of action to reestablish a promissory note pursuant to F. S. 673.3091.
Denied. The plaintiff has not stated a cause of action to reestablish a promissory note pursuant to F. S. 673.3091.
Denied. The plaintiff has not stated a cause of action to reestablish a promissory note pursuant to F. S. 673.3091.
Defendant admits that the plaintiff does not own the mortgage or the note, admits that the plaintiff does not hold the note; however that plaintiff does not have legal possession of and cannot obtain possession of the subject note or determine its whereabouts. The plaintiff has not stated a cause of action to reestablish a promissory note pursuant to F. S. 673.3091.
Denied.
Denied and move to strike on account of Paragraph 9 of the plaintiff’s complaint does not contain a fact allegation.
Denied. The plaintiff has not stated a cause of action to foreclose a mortgage.
Admit.
Denied.
Admited.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
22. Defendant denies that this plaintiff has stated a cause of action for foreclosure because on the date this lawsuit was filed the plaintiff was not the true owner of the claim sued upon; is not the real party in interest and is not shown to be authorized to bring this foreclosure action.
23. Defendants request the court dismiss this action pursuant to Rules 1.210(a) and 1.140(7) of the Florida Rules of Civil Procedure because it appears on the face of the complaint and the documents attached to the plaintiff’s March 12, 2007 notice of filing that a person other than the Plaintiff is the true owner of the claim sued upon on the date this action was commenced and that the Plaintiff was not the real party in interest at the commencement of this action, had no interest in the subject mortgage and note at the date on which the subject complaint for foreclosure was filed and is not shown to be authorized to bring this foreclosure action.
24. This action was commenced on January 29, 2007, but the assignment upon which the plaintiff is relying to support its claims is based on an assignment dated February 5, 2007, which post dates the filing of the complaint.
25. Additionally, the plaintiff has filed a separate assignment that conflicts with the February 5, 2007 assignment because on August 14, 2007, the date of the purported second assignment, the assignor had already transferred its interest in the subject mortgage and note to another entity and further because there was a lack of any consideration for the August 14, 2007 assignment.
26. The filing of these two assignments by the plaintiff, neither of which support the plaintiff’s claim of ownership of the subject mortgage on the date this foreclosure was filed, are a sham and a fraud on the court.
27. Plaintiff came into the this court alleging that it owned the subject loan on January 29, 2007, the date this action was commenced when the plaintiff was fully aware that was not true. This is fraud on the court.
28. Fla.R.Civ.P. Rule 1.130(a) requires a Plaintiff to attach copies of all bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought to its complaint.
29. Although the plaintiff alleges in its complaint that it is the owner of the promissory note and the mortgage that are the subject of this foreclosure action, the note and mortgage and assignments attached to the plaintiff’s complaint and to the plaintiff’s notice of filing conflict with these allegations and therefore the contents of actual mortgage and note cancel out the inconsistent and conflicting assignments and allegations as to the ownership of the note and mortgage at the commencement of this action.
30. When exhibits are inconsistent with the plaintiff’s allegations of material fact as to who the real party in interest is, such allegations cancel each other out. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA 1983).
31. Plaintiff was not the real party in interest on the date this action was commenced and is not shown to be authorized to bring this action.
32. Because the facts revealed by the exhibits attached to the plaintiff’s complaint and in the Plaintiff’s notice of filing are inconsistent with Plaintiff’s allegations as to ownership of the subject note and mortgage, those allegations are neutralized and Plaintiff’s complaint is rendered objectionable. Greenwald v. Triple D Properties, Inc., 424 So.2d 185,187 (Fla. 4th DCA 1983).
AFFIRMATIVE DEFENSES
1. FAILURE OF CONTRACTUAL CONDITION PRECEDENT: NO NOTICE OF DEFAULT: Plaintiff failed to provide Separate Defendants with a Notice of Default and Intent to Accelerate as required by and/or that complies with Paragraph 22 of the subject mortgage.  As a result, Separate Defendants have been denied a good faith opportunity, pursuant to the mortgage and the servicing obligations of the Plaintiff, to avoid acceleration and this foreclosure.
2.   NO HUD COUNSELING NOTICE: Plaintiff failed to comply with the foreclosure prevention loan servicing requirement imposed on Plaintiff pursuant to the National Housing Act, 12 U.S.C. 1701x(c)(5) which requires all private lenders servicing non-federally insured home loans, including the Plaintiff, to advise borrowers, including this separate Defendant, 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 a 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).
3. PLAINTIFF FAILED TO COMPLY WITH APPLICABLE POOLING AND SERVICING AGREEMENT LOAN SERVICING REQUIREMENTS: Plaintiff failed to provide separate Defendants with legitimate and non predatory access to the debt management and relief that must be made available to borrowers, including this Defendant pursuant to and in accordance with the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission 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 servicing 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.
a. Defendants assert that the special default loan servicing requirements contained in the subject pooling and servicing agreement, to be filed in pertinent part and which is on file at: http://www.secinfo.com , are incorporated into the terms of the mortgage contract between the parties as if written therein word for word and the defendants are entitled to rely upon the servicing terms set out in that agreement.
b. Alternatively or additionally, the defendants are third party beneficiaries of the Plaintiff’s pooling and servicing agreement and entitled to enforce the special default servicing obligations of the plaintiff specified therein.
c. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff demonstrates compliance with the foreclosure prevention servicing imposed by the subject pooling and servicing agreement under which the plaintiff owns the subject mortgage loan.
d. The Plaintiff failed, refused or neglected to comply with prior to the commencement of this action with the servicing obligations specifically imposed on the plaintiff by the PSA in many particulars, including, but not limited to:
1. Plaintiff failed to service and administer the subject mortgage loan in compliance with all applicable federal state and local laws.
2. Plaintiff failed to service and administer the subject loan in accordance with the customary an usual standards of practice of mortgage lenders and servicers.
3. Plaintiff failed to extend to defendants the opportunity and failed to permit a modification, waiver, forbearance or amendment of the terms of the subject loan or to in any way exercise the requisite judgment as is reasonably required pursuant to the PSA.
e. Plaintiff’s failure to meet the servicing obligations imposed by the PSA cause the filing by plaintiff of this foreclosure to be in premature, in bad faith and a breach by plaintiff of its obligation to defendants implied in the mortgage contract and as specified in writing in the PSA, to act in good faith and to deal fairly with defendants.
f. Instead, plaintiff’s servicing failures as set forth herein render plaintiff’s actions in filing this premature foreclosure to be in bad faith and not acceptable loan servicing under the written contracts between the parties which include the mortgage, the PSA incorporated therein or by which defendants are third party beneficiaries thereof and the promissory note.
g. Plaintiff intentionally failed to act in good faith or to deal fairly with these Defendants by failing to follow the applicable standards of residential single family mortgage lending and servicing as described in these Affirmative Defenses thereby denying these Defendants access to the residential mortgage lending and servicing protocols applicable to the subject note and mortgage.
4. ILLEGAL CHARGES ADDED TO BALANCE: Plaintiff has charged and/or collected payments from Defendants for attorney fees, legal fees, foreclosure costs, late charges, property inspection fees, title search expenses, filing fees, broker price opinions, appraisal fees, and other charges and advances, and predatory lending fees and charges that are not authorized by or in conformity with the terms of the subject note and mortgage or the controlling pooling and servicing agreement which specifies the waiver of late payments and other collection charges as part of the forbearance and loan modification default loan servicing. Plaintiff wrongfully added and continues to unilaterally add these illegal charges to the balance Plaintiff claims is due and owing under the subject note and mortgage.
5. FAILURE OF GOOD FAITH AND FAIR DEALING: UNFAIR AND UNACCEPTABLE LOAN SERVICING: Plaintiff intentionally failed to act in good faith or to deal fairly with the subject Defendants by failing to follow the applicable standards of residential single family mortgage servicing as described in these Affirmative Defenses thereby denying Defendant s access to the residential mortgage servicing protocols applicable to the subject note and mortgage.
6. UNCLEAN HANDS: The 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 terms of the mortgage and note; the failure to comply with the default loan servicing requirements that apply to this loan, all 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 circumstances 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 estopped from doing so because of misleading conduct and unfulfilled contractual and equitable conditions precedent.
WHEREFORE, Defendants demands the Plaintiff’s complaint be dismissed with prejudice and for fraud on the court, and for their attorney’s fees and costs and for all other relief to which this Court finds Defendants entitled.
7. PLAINTIFF LACKS STANDING: DEUTSCHE BANK NATIONAL TRUST COMPANY is not the true owner of the claim sued upon, is not the real party in interest and is not shown to be authorized to bring this foreclosure action.
COUNTERCLAIMS
COUNT I: DECLARATORY AND INJUNCTIVE RELIEF
1. This is an action for declaratory and injunctive relief against the Plaintiff.
2. Plaintiff failed to provide Separate Defendants with a Notice of Default and Intent to Accelerate as required by and/or that complies with Paragraph 22 of the subject mortgage.
3. Plaintiff failed to comply with the foreclosure prevention loan servicing requirement imposed on Plaintiff pursuant to the National Housing Act, 12 U.S.C. 1701x(c)(5) which requires all private lenders servicing non-federally insured home loans, including the Plaintiff, to advise borrowers, including this separate Defendant, of any home ownership counseling Plaintiff offers together with information about counseling offered by the U.S. Department of Housing and Urban Development.
4. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff demonstrates compliance with 12 U.S.C. 1701x(c)(5).
5. Plaintiff failed to provide separate Defendants with legitimate and non predatory access to the debt management and relief that must be made available to borrowers, including this Defendant pursuant to and in accordance with the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission that controls and applies to the subject mortgage loan.
6. Plaintiff’s non-compliance with the conditions precedent to foreclosure imposed on the plaintiff pursuant to the applicable pooling and servicing 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.
7. The special default loan servicing requirements contained in the subject pooling and servicing agreement are incorporated into the terms of the mortgage contract between the parties as if written therein word for word and the defendants are entitled to rely upon the servicing terms set out in that agreement.
8. Defendants are third party beneficiaries of the Plaintiff’s pooling and servicing agreement and entitled to enforce the special default servicing obligations of the plaintiff specified therein.
9. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff demonstrates compliance with the foreclosure prevention servicing imposed by the subject pooling and servicing agreement under which the plaintiff owns the subject mortgage loan.
10. The section of the Pooling and Servicing Agreement (PSA) is a public document on file and online at http://www.secinfo.com and the entire pooling and servicing agreement is incorporated herein.
11. The Plaintiff failed, refused or neglected to comply, prior to the commencement of this action, with the servicing obligations specifically imposed on the plaintiff by the PSA in many particulars, including, but not limited to:
a. Plaintiff failed to service and administer the subject mortgage loan in compliance with all applicable federal state and local laws.
b. Plaintiff failed to service and administer the subject loan in accordance with the customary an usual standards of practice of mortgage lenders and servicers.
c. Plaintiff failed to extend to defendants the opportunity and failed to permit a modification, waiver, forbearance or amendment of the terms of the subject loan or to in any way exercise the requisite judgment as is reasonably required pursuant to the PSA.
12. The Plaintiff has no right to pursue this foreclosure because the Plaintiff has failed to provide servicing of this residential mortgage loan in accordance with the controlling servicing requirements prior to filing this foreclosure action.
13. Defendants have a right to receive foreclosure prevention loan servicing from the Plaintiff before the commencement or initiation of this foreclosure action.
14. Defendants are in doubt regarding their rights and status as borrowers under the National Housing Act and also under the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission. Defendants are now subject to this foreclosure action by reason of the above described illegal acts and omissions of the Plaintiff.
15. Defendants are being denied and deprived by Plaintiff of their right to access the required troubled mortgage loan servicing imposed on the plaintiff and applicable to the subject mortgage loan by the National Housing Act and also under the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission.
16. Defendants are being illegally subjected by the Plaintiff to this foreclosure action, being forced to defend the same and they are being charged illegal predatory court costs and related fees, and attorney fees. Defendants are having their credit slandered and negatively affected, all of which constitutes irreparable harm to Defendants for the purpose of injunctive relief.
17. As a proximate result of the Plaintiff’s unlawful actions set forth herein, Defendants continue to suffer the irreparable harm described above for which monetary compensation is inadequate.
18. Defendants have a right to access the foreclosure prevention servicing prescribed by the National Housing Act and under the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission which right is being denied to them by the Plaintiff.
19. These acts were wrongful and predatory acts by the plaintiff, through its predecessor in interest, and were intentional and deceptive.
20. There is a substantial likelihood that Defendants will prevail on the merits of their counterclaims.
WHEREFORE, Defendants request the Court dismiss the Plaintiff’s complaint with prejudice, enter a judgment pursuant to Fla. Stat. 86 declaring that the Plaintiff is legally obligated to provide the Defendants with access to the special troubled loan servicing prescribed by the National Housing Act and under the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission and enjoining the Plaintiff from charging foreclosure fees and costs and from commencing or pursuing this foreclosure until such servicing is provided to this Defendant, for attorney’s fees and for all other relief to which Defendant proves themselves entitled.

COUNT II: ILLEGAL CONSUMER COLLECTION
Defendants reassert and reallege, as their Statement of Facts, paragraphs 2 through 20, inclusive as set out in Count I of these counterclaims.
22. Defendants are consumers and the obligation between the parties which is the debt owned pursuant to the subject note and mortgage is a consumer debt as defined in F. S. Section 559.55(1).
23. Plaintiff has engaged in consumer collection conduct which amounts to a violation of F.S. Section 559.72(9) as set out below and Defendants, as a proximate result thereof, have sustained economic damages for which the Defendants are entitled to compensation from the Plaintiff, pursuant to F.S. Section 559.77.
24. Plaintiff’s collection activities described herein violated F.S. 559.72(9) in that the Plaintiff is claiming, attempting and threatening to collect and enforce this consumer mortgage debt by this foreclosure action when the Plaintiff knows that the right to pursue foreclosure does not exist.
25. These acts were wrongful and predatory acts by the plaintiff, through its predecessor in interest, and were intentional and deceptive.
26. Additionally, the reason the Plaintiff does not have a legal right to pursue this foreclosure is because the Plaintiff has failed to first comply with the foreclosure prevention loan servicing obligations imposed on Plaintiff prescribed by the National Housing Act and under the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission.
27. These foreclosure prevention loan servicing obligations are imposed on the Plaintiff pursuant to the National Housing Act, 12 U.S.C. Section 1710(a) and the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission.
28. The Plaintiff is claiming, attempting and threatening to collect fees and charges including, but not limited to, attorney fees, legal fees, foreclosure costs, late charges, property inspection fees, title search expenses, filing fees, broker price opinions, appraisal fees, and other charges and advances, and predatory lending fees and charges all of which are not authorized by or in conformity with the terms of the subject note and mortgage.
29. Plaintiff wrongfully added and continues to unilaterally add these illegal charges to the balance Plaintiff claims is due and owing under the subject note and mortgage.
30. Plaintiff continues to claim, attempt, and threaten to enforce this mortgage debt through acceleration and foreclosure when the Plaintiff knows that such conduct is in bad faith because the Plaintiff has charged and collected money from defendants that they did not owe; forced defendants into deepening indebtedness and then failed to meet the contractual and statutory conditions precedent before filing this action to collect this consumer debt.
31. As a result of the Plaintiff’s failure to properly service this mortgage loan before filing this foreclosure action, Defendants have been damaged and Defendants seek to recover their actual or statutory damages from the Plaintiff under F.S. 559.77.
WHEREFORE, Defendants demand the Plaintiff’s complaint be dismissed with prejudice, for an award of damages in defendants’ favor and against the plaintiff for their actual or statutory damages whichever is greater and for their attorney’s fees and costs and for all other relief to which this Court finds Defendants entitled.
DEMAND FOR TRIAL BY JURY
Defendants hereby demands trial by jury.
WHEREFORE, Defendants demand the Plaintiff’s complaint be dismissed with prejudice for failure to state a cause of action and for fraud on the court, and for judgment against the plaintiff for their damages, for an award of attorney’s fees and costs and for all other relief to which this Court finds Defendants entitled.
CERTIFICATE OF SERVICE
The undersigned certifies that a true copy of this document has been mailed to Sean Moloney and to Linda Chelvam, Law Offices of Marshall C. Watson, P.A. 1800 N.W. 49th Street, Suite 120, Fort Lauderdale, FL 33309, Attorney for Plaintiff this ______________________________.
JACKSONVILLE AREA LEGAL AID, INC.
_______________________________ APRIL CARRIE CHARNEY, Esquire Fla. Bar No.: 310425
126 West Adams Street
Jacksonville, Florida 32202
Telephone: (904) 356-8371, ext.373
Facsimile: (904) 224-7050
april.charney@jaxlegalaid.org
Attorney for Defendants

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