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IN THE TWELFTH JUDICIAL CIRCUIT COURT IN AND FOR SARASOTA COUNTY, FLORIDA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWABS, INC. ASSET BACKED CERTIFICATES SERIES 2006-2 Plaintiff, v. Case#: 2007 CA 014577 SC DONNA BIAFORE, ET AL Defendants. DEFENDANT’S MOTION FOR RELIEF TO VACATE AND SET ASIDE DEFAULT The Defendant, DONNA BIAFORE, pursuant to, inter alia, Fla R. Civ. P. Rule 1.540, move the court to vacate and set aside the Default entered on June 9, 2008. The Defendant further moves for leave of court to file a motion to dismiss, answer, affirmative defenses, and counterclaims as appropriate. In support of this motions, Defendant states as follows: DEFENDANT’S MOTION FOR RELIEF FROM DEFAULT I. Facts: 1, ‘This case commenced on November 29, 2007 by Plaintiff filing a Complaint seeking foreclosure of real property located in Sarasota County and to reforma lost promissory note pursuant to 673.3091. 2. Prior to the commencement of this case, Defendant had filed a voluntary chapter 13 bankruptcy petition in Florida’s middle district on or about July 26, 2007. 3, Alleged creditor Countrywide Home Loans, Inc. filed an objection to the plan on August 6, 2007. Page 1 of 8 4, Alleged creditor Countrywide Home Loans, Inc. filed another objection on or about August 14, 2007. wv . Said objection was denied on or about August 24, 2007. 6. The bankruptcy court entered an order modifying the automatic stay on September 10, 2007 pursuant to a motion filed by Countrywide Home Loans, Ine, filed on August 22, 2007; said order allowed this creditor to pursue this case against Ms. Biafore. 7. Terry E. Smith, the Chapter 13 standing trustee did not recommend the confirmation order on or about September 17, 2007. = ;. Defendant filed an Amended Petition on or about October 16, 2007. ° . An Order lifting the stay as to Bank of New York was entered on August 20, 2008. 10.For reasons unknown to defendant, another petition for Chapter 7 was commenced on July 3, 2008. 11.For some reason unknown to defendant, her bankruptey attorney voluntarily dismissed her case on October 14, 2008. 12.This resulted in defendant’s bankruptcy attorney filing another petition for voluntary Chapter 7 bankruptcy that was eventually discharged. 13.The plaintiff's Complaint alleged in paragraph (5) that it “owns and holds the note and mortgage”. 14,The plaintif?’s complaint also alleges that it was assigned morgage “by virtue of an assignment to be recorded.” 15.The assignment that was recorded on July 1, 2008 is instrument number 20080906031. It purports to be an assignment from Mortgage Electronic Registration Systems (MERS) signed: by “Cheryl Samons” as “assistant secretary” and allegedly executed on November 2, 2007. Page 2 of 8 16.Ms. Samons is an employee of Plaintiff's law firm, David J. Stern, P.A.. Defendant is contemporaneously filing a Request for judicial Notice of Ms. Samons testimony in the case. 17.Plaintiffs filed a Motion for Final Summary Judgment on June 6, 2008 but Plaintiffs have not filed the Checklist mandated by this Circuit Court. 18.Plaintiff also filed a Motion for Clerk’s Default against defendant on June 6, 2008. 19.The Defendant, not sophisticated in the world of foreclosure or the courts, was naive to the foreclosure process and was advised that the matter would be handled by the bankruptcy court. 20.The court docket reflects that a clerk’s default was entered against the Defendant on June 9, 2008. 21.Defendant had a good faith belief that she was barred from defending this case because she had declared bankruptcy and was informed that the real property that is the subject of this case was part of the bankruptcy estate. In fact, defendant was under the impression that the property had ben repossessed by the plaintiff, 22.Plaintiff only realized that something was terribly wrong when she received Sarasota County property tax lien information. Defendant initially sought an explanation ftom her bankruptcy attomey, Murray Fitzhugh. Defendant contacted undersigned counsel to investigate after she received additional tax bills and no explanation for the bills was forthcoming from attorney Fitzhugh. 23.Undersigned counsel determined that this case has not been prosecuted by plaintiff since June, 2008 24,Defendant now moves this Court for vacation of the default, Defendant further moves for leave of court to file an answer, affirmative defenses, and counter claims if necessary. Defendant attaches a proposed Answer and Affirmative Defenses. Page 3 of 8 IL Argument A. Purpose of Florida Rule 1.540 Florida Rule of Civil Procedure 1.540 states as follows: Rule 1.540, Relief from Judgment, Decrees, or Orders (@)Clerical Mistakes. Clerical mistakes in judgments, decrees, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mistakes may be so corrected before the record on appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court. (b)Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or itis no longer equitable that the judgment or decree should have prospective application. The motion shall be made within a reasonable tine. and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This mule Page 4 of 8 does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court, Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review are abolished, and the procedure for obtaining any relief from a judgment or decree shall be by motion as prescribed in these rules or by an independent action. Amended July 16, 1992, effective Jan. 1, 1993 (604 So.2d 1110); July 7, 1995, and Nov. 22, 1995, effective Jan, 1, 1996 (663 So.2d 1047,1049). There can be no doubt that the Defendant should be entitled to relief under 1.540(b)(1) where she obtained the undersigned attorney for the handling of her foreclosure action. Defendant, does not file this motion for the purpose of unnecessary delay. The Defendant believes that she has a meritorious defense as evidenced by the attached Answer and Affirmative Defenses. B. Plaintiff does not have standing to maintain this action. In the instant matter, the Defendants contend that, based on the documents actually attached to the Plaintiff's Complaint and identified as the alleged note and mortgage at issue in this matter, the Plaintiff never had standing, despite its representations to this Court, to prosecute this matter, Plaintiff is not the real party in interest and has no standing to bring this action, In Florida, a party may not prosecute a foreclosure action unless that party actually holds and owns the note. Your Construction Center, Inc. v. Gross, 316 So.2d 596 (Fla. 4h DCA 1975); Overseas Development, Inc, v. R.A. Krause, 323 So.2d 679 (Fla. 34 DCA 1975)(emphasis added). New Second District Court of Appeal cases involving this issue include BAC Funding Consortium, Inc, ISAO/ATTIMA v. Jean-Jacques, 28 So.3d 936 (Fla. 2d, DCA 2010) and Verizzo v. Bank of New York, 28 50.34 976 (Fla, 24 DCA 2010), of, Riggs v. Aurora, 36 S0.3d 932, 35 Fla, L. Weekly D1336, (Fla. 4" DCA 2010), Taylor v. Deutsche Bank Nat, Trust Co.—- $0.3d—-, 2010 WL. 3056612 (Fla.. 5" DCA August 06, 2010). Page 5 of 8 As the Plaintiff had previously assigned, endorsed, and/or sold the Defendant’s mortgage, the very thing it claims it “owns” in Plaintiffs Complaint, the Plaintiffhas no standing whatsoever to initiate and/or maintain this action. As standing in a foreclosure action requires ownership of the note to the property at issue, the Plaintiff could not have maintained this action at any stage and any judgment against the individual Defendants is not authorized by law. This goes to the heart of the Plaintiff's action and, if correct, would require dismissal of the Plaintiff's Complaint. With respect to the Default entered in this matter, the court docket reflects that a clerk’s default was entered on June 8, 2009. Pursuant to Fla. R. Ciy. P. 1.500(a) entry of a default by the clerk is only appropriate when a party has failed to file or serve any paper. In light of the foregoing, for all of the aforementioned reasons, the Defendant has clearly demonstrated excusable neglect because it was her understanding that the alleged debt was resolved when her bankruptcy was discharged. Defendant further believes that she has meritorious defenses to the Plaintiff's claims as set forth in the attached Answer and Affirmative Defenses and therefore the Default should be set aside. C. The Defendants have evidence that Plaintiff has unclean hands and misrepresented to this Court that it owns and holds the subject promissory note. The original lender in this case is Countrywide Home Loans, Inc.{ hereafter “CHLI”). The alleged mortgage and p-notel CHLI eventually merged with Bank of America (hereafter “BOA”) as of April 27, 2009. The Federal Trade Commission (hereafter “FTC") investigated CHLI Prior to its acquisition by BOA for overcharging struggling homeowners, inflating its loan servicing fees and mishandling loans of borrowers in bankruptcy. Defendant has filed a contemporaneous request for judicial notice of FTC v. Countrywide Home Loans, Inc.,2 corporation, and BAC Home Loan Servicing, LP, a limited partnership, Case number CV10-4193, FTC File No. 082 3205 (Central District CA 2010). FEC sought permanent injunction and other equitable relief. The parties entered into a consent order that provided for “$108 million judgment that will be used to reimburse overcharged homeowners whose loans were serviced by Countrywide before it was acquired by Bank of America.” See, FTC press release at http://www fic. gov/opa/2010/06/countrywide.shtm, The settlement also prohibited CHLI and BAC from “[mlaking false or unsubstantiated representations about loan accounts, such as amounts owed, Charging any fee for a service unless itis, authorized by the loan instruments, by law, or by the consumer for a specific service 1 P-note is defined as “promissory note” Page 6 of 8 requested by the consumer, Charging any fee for a default-related service unless itis a reasonable fee charged by a third party for work actually performed. If the service is provided by an affiliate of a defendant, the fee must be within limits set by state law, investor guidelines, and market rates. Defendants must obtain annual, independent market reviews of their affiliates’ fees to ensure that they are not excessive.” The order also required “Countrywide must advise consumers if it intends to use affiliates for cefault-related services and, if s0, provide fee schedule of the amounts charged by the affiliates and [t]he settlement also requires Countrywide to make significant changes to its bankruptcy servicing practices. For example, Countrywide must send borrowers in Chapter 13 bankruptcy a monthly notice with information about what amounts the borrower owes — including any fees assessed during the prior month. The defendants also must implement a data integrity program to ensure the accuracy and completeness of the data they use to service loans in Chapter 13 bankruptcy.” Id. Defendant has filed a contemporaneous request for judicial notice of her bankruptcy cases; the initial case was a Chapter 13 that was subsequently converted toa Chapter’. ‘The lender CHLI filed a proof of claim on August 6, 2007 and another proof of claim on August 14, 2007; the latter proof of claim involves the same real property as this mortgage foreclosure action, The proof of claim calculation presented to the bankruptcy court on August 6, 2007 did not include any charges like those in the FTC case, supra, However, the Affidavit in support of Summary Judgment signed by Chery! Samons, plaintif’s counsel’s long term employee, in June, 2008 does include the prohibited charges. In addition, the current plaintiff in this case also filed a Motion for Relief from Automatic stay on July 25, 2008. The Motion includes an affidavit of indebtedness prepared by another plaintiff's lawyer, David J. Stern, P.A., employee Wendy Wasserman on July 24, 2008 that also includes default related service fees. Both Wendy Wasserman and Cheryl Samons are dual-employed as “Certifying Officers” of MERS and David J Stern, P.A. Defendant has located the true owner of her promissory note and mortgage via the U.S. Securities and Exchange Commission website, EDGAR, Defendant believes that the true party in interest has probably been paid pursuant to a credit default swap agreement. Defendant denies that the plaintiff herein is the true party in interest. D. Conclusion Standing is a basic requirement for any action filed in any court. Serious questions have arisen regarding this Plaintiff's standing to bring this action which should Page 7 of 8 convince this Court to set aside the default against Defendant has shown excusable neglect for the default in this matter for the reasons stated herein. WHEREFORE, the Defendants requests relief from the final judgment, vacation of the default. Defendant's further move for leave of court to file a motion to dismiss and/or answer, affirmative defenses, and counter claims, ask the court to grant the Defendant an award of attorney’s fees and for all other relief to which the Defendants prove themselves entitled. Th ai 2022 Placida Rd Englewood, FL 34224-5204 (041) 475-7966 (G41) 475-0729 facsimile FBN: 0134902 Jacqulyn@macklawfirm.org, CERTIFICATE OF SERVICE IHEREBY CERTIFY, thata true and correct copy of the foregoing was furnished to Maria M Solomon, Esq., David J Stern, PA, 900 S. Pine Island Rd,, Plantation FL 33324, via e-mail msolomon@dstern.com ‘and U.S. Mail on this day September, 2010. facquiyn Mack, Esquire Page 8 of 8 IN THE TWELFTH JUDICIAL CIRCUIT COURT IN AND FOR SARASOTA COUNTY, FLORIDA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWABS, INC. ASSET BACKED CERTIFICATES SERIES 2006-2 Plaintiff, v Casei#: 2007 CA 014577 SC DONNA BIAFORE, ET AL Defendants. DEFENDANT DONNA BIAFORE ANSWER, AFFIRMATIVE DEFENSES AND CLAIM FOR ATTORNEY'S FEES Defendant Donna Biafore, by and through undersigned attomeys, file their answer, affirmative defenses and claim for attomey's fees and in support thereof states: ANSWER TO COMPLAINT Paragraph 1 of Plaintiff's complaint is admitted. Paragraph 2 is denied insofar as Plaintiff has not alleged facts sufficient to demonstrate that it invoked the jurisdiction of the circuit court. Paragraph 3 is denied. Further, defendant's specifically deny any and all indorsements on said note and mortgage pursuant to Florida Statutes section 673.3081. Page 1 of 23 Bek bit | Paragraph 4 is denied. The pooling and service agreement of the CWABS Inc. Asset Backed Certificates Series 2006-2 contains no indication that the note was ever securitized thereby.( http://www. secinfo.com/drjtj.v25x.d.htm#681) That document clearly defines the required procedures for the preservation of the promissory note and mortgage. Plaintiff has failed to allege facts to show that it ever collected the promissory note and mortgage from the Custodian of the trust, when it was collected, in what manner it was collected and where it was secured prior to its loss. Plaintiff has not alleged facts to show it cannot obtain possession of the promissory note. Plaintiff fails to indicate which certificate holders it represents and as such, has a conflict of interest in that there are different tiers of certificate holders in said trust. Strict proof thereof, with clear and convincing evidence, is demanded, Paragraph 5 is denied. The note was made payable to Countrywide Home Loans, Inc, and was not indorsed to any other party. Sstrict proof thereof is demanded with clear and convincing evidence. Plaintiff has failed to plead sufficient ultimate facts, or has plead with such vagueness that defendant is compelled to deny this paragraph as Plaintiff has not established how it acquired the right to enforce the Note and Mortgage, nor how the predecessor in interest acquired the right to enforce the same Note and Page 2 of 23 Mortgage. Plaintiff has failed to plead sufficient ultimate facts, or has plead with such vagueness that defendant is compelled to deny this paragraph as Plaintiff has not established when, how or why it came to be the “owner and holder” of the Note and Mortgage attached to the complaint. Paragraph 6 is admitted, Paragraph 7 is denied in that Plaintiff failed to plead sufficient ultimate facts to indicate the promissory note referenced, the signators of the note, the payee of the note and further essential facts sufficient for Defendant to respond. Strict proof thereof, with clear and convincing evidence, is demanded. Paragraph 8 is denied. Paragraph 9 is denied. Plaintiff has failed to allege sufficient facts in support of this claim. Strict proof thereof, with clear and convincing evidence, is demanded Paragraph 10 is denied. Plaintiff has failed to allege sufficient facts in support of this claim. Strict proof thereof, with clear and convincing evidence, is demanded Paragraph 11 is denied for lack of knowledge. Defendant demands strict proof thereof, with clear and convincing evidence. Page 3 of 23 Paragraph 12 is denied for lack of knowledge, Defendant demands strict proof thereof, with clear and convincing evidence. Paragraph 13 is denied for lack of knowledge. Paragraph 14 is denied for lack of knowledge. Paragraph 15 is denied for lack of knowledge. COUNT Paragraph 16 is denied for lack of knowledge, Defendant demands strict proof thereof, with clear and convincing evidence. Paragraph 17 is admitted that Defendant did execute loan documents. It is denied for lack of knowledge. Defendant demands strict proof thereof, with clear and convincing evidence. Paragraph 18 is admitted as to there is a recorded mortgage but denies the remainder for lack of knowledge. Defendant demands strict proof thereof, with clear and convincing evidence. Paragraph 19 is denied. The note was made payable to Countrywide Home Loans, Inc. and was not indorsed to any other party. Strict proof thereof is demanded with clear and convincing evidence. Plaintiff has failed to plead sufficient ultimate facts, or has plead with such vagueness that defendant is compelled to deny this paragraph as Plaintiff has not established how it acquired the right to enforce the Note and Mortgage, nor how the Page 4 of 23, predecessor in interest acquired the right to enforce the same Note and Mortgage. Plaintiff has failed to plead sufficient ultimate facts, or has plead with such vagueness that defendant is compelled to deny this paragraph as Plaintiff has not established when, how or why it came to be the “owner and holder” of the Note and Mortgage attached to the complaint. Paragraph 20 is denied for lack of knowledge. Defendant demands strict proof thereof, with clear and convincing evidence. Paragraph 21 does not require a response. If it should be interpreted otherwise defendant demands strict proof thereof, with clear and convincing evidence. AFFIRMATIVE DEFENSES First Affirmative Defense Failure to Produce Original Promissory Note 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 Page 5 of 23, 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. (2009). On information and belief, Defendant deny the Plaintiff has ever had possession of the subject Note and Mortgage. Plaintiff cannot establish foundation to show possession of the Note when the loss of possession occurred. Plaintiff cannot establish that Plaintiff lost possession of the Note after it was transferred to the Plaintiff and that it cannot reasonably obtain possession thereof, Absent such proof, Plaintiff is required by Florida Law to provide the original Note and Mortgage. Having failed to provide the original Note and Mortgage, Plaintiff cannot maintain an action. On information and belief, the Plaintiff cannot prove the terms of the instrument and the person's right to enforce the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against. loss that might occur by reason of a claim by another person to enforce the instrument. Fla. Stat. 673.3091(2). On information and belief, Defendant specifically denies all necessary terms of the Note are provided in the attached Mortgage. Clearly, since the Note is missing, necessary Page 6 of 23 endorsements on the Note are missing; as such, essential terms and conditions precedent are not provided by the Plaintiff. On information and belief, Defendants deny the authenticity of signatures on the Note and Mortgage alluded to in this case and demand strict proof thereof, by clear and convincing evidence, pursuant to § 673.3081, Fla. Stat. (2008). Second Affirmative Defense Plaintiff's Lack of Standing and failure to plead a cause of action under Fla, R. of Civ. P. 1.110(b). Plaintiff is neither the original Obligee identified in the Promissory Note referenced in the attached mortgage, nor the original mortgagee. Plaintiff has failed to allege ultimate facts as to how or why it came to be the ‘owner and holder of the note and mortgage. Further, Plaintiff fails to allege any ultimate facts whatsoever placing it within the chain of ownership of the Promissory Note and Mortgage. Therefore, Plaintiff has failed to plead a cause of action under Fla. R. Civ. P, 1.110(b). On information and belief, the Pooling Service Agreement of CWABS Inc. Asset Backed Certificates Series 2006-2 contains no indication that the note was ever securitized thereby.( http://www.secinfo.com/drjtj.v25x.d.htm#681 ) and contains no indication Page 7 of 23 that the note was ever securitized thereby or included in said trust. Plaintiff is required to provide support for its contention that said note is within the CWABS Inc. Asset Backed Certificates Series 2006-2 trust. (Trust located at hittp://www.secinfo.com/drjt).v25x.d.htm#681) That document clearly defines the required procedures for the preservation of the promissory note and mortgage. Plaintiff has failed to allege facts to show that it ever collected the promissory note and mortgage from the Custodian of the trust, when it was collected, in what manner it was collected and where it was secured prior to its loss. The mortgage loan and note was never part of the pooled res and, therefore, not trust property. Plaintiff cannot act as a trustee on behalf of a trust that never had ownership of the subject loan and therefore lacks standing to sue as a trustee. In the alternative, if in fact the loan and supporting loan portfolio was in fact deposited into the trust res, Plaintiff has then failed to provide proof of assignment of the Note and Mortgage to the Depositor or to the Custodian or any subsequent custodians. Plaintiff failed to provide proof of assignment of the Note from Depositor to the plaintiff as trustee. Therefore, the Plaintiff has failed to show standing to initiate this action, Third Affirmative Defense Page 8 of 23, Failure to Include Nevessary Party On information and belief, Defendants claims plaintiff has failed to include a necessary party to this action. Plaintiff is obviously not the original lender and is therefore an alleged assignee of the promissory note and mortgage. Further, plaintiff failed to include the Depositor, the Custodian, nor any subsequent custodians. On information and belief, Defendant alleges that the mortgage and promissory note, if they were indeed delivered and assigned to plaintiff, were done so for the benefit of the certificate holders of the trust identified in the caption of the complaint. As partial owners of the promissory note payments, these and all other intermediate assignees are necessary parties to this action. See Fund Title Note 22.02.03. Fourth Affirmative Defense Negative Averment as to Capacity 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. The complaint lacks any allegation of where the Plaintiff entity was created or whether it was authorized to do business in Florida, or exempt from registration under Florida law. Page 9 of 23 Fifth affirmative defense Ultra Vires Acts, Failed Trust As their fifth affirmative defense, Defendant assert and allege all other facts referenced in the previous affirmative defenses and that Plaintiff acted ultra vires to its powers under the trust, and is without authority or capacity to act for its ces‘ui que trust as to res in the dispute. Further, upon information and belief, Plaintiff and/or its predecessors in ownership to the note and mortgage failed to abide by the trust’s funding and transfer requirements and restrictions in placing the subject mortgage loan within the corpus or res of the trust identified by Plaintiff of which the mortgage loan constitutes a part. As such, Plaintiff's claim of power, authority or other standing to pursue this action is an ultra vires act over the res of a failed trust, and its attempt to receive assignment of the loan well outside the scope of the trust’s specific restrictions is void. Sixth Affirmative Defense Negative Averment as to Authenticity On information and belief, Defendant asserts and alleges all other facts referenced in the previous affirmative defenses and specifically raises by negative averment the lack of authenticity and/or validity of any Page 10 of 23 signatures or endorsements on the Note filed by Plaintiff in connection with this case. Negative Averment is raised by defendant pursuant to Florida Statute 673.3081. Seventh Affirmative Defense Ulegal Charges Added to Balance As seventh Affirmative Defense, Defendant 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 Defendant. On information and belief, Plaintiff's lack of standing, lack of capacity to sue and ultra vires action in foreclosure has added illegal charges and fees to the alleged debt owed by the Defendants including but not limited to a title search expense,” advanced Ad Valorem taxes, premiums on insurance, attorney’s fees and other necessary costs. Eighth Affirmative Defense Unclean Hands. As eighth Affirmative Defense, Defendant assert and allege all other facts referenced in the previous affirmative defenses and that Plaintiff comes to this court with unclean hands. “A foreclosure action is an equitable proceeding which may be denied if the holder of the note comes to the court with unclean hands...” Knight Page 11 of 23 Energy Services, Inc. v. Amoco Oil Co., 660 So.2d 786, 789 (Fla. 4 DCA. 1995). The Florida Supreme Court held that while “[mJere 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). On information and belief, Defendants assert that the Plaintiff failed to follow Florida law of negotiable instruments in obtaining necessary endorsements on the Promissory Note and Mortgage submitted to this court as evidence of the Plaintiffs alleged debt. Further, the Plaintiff failed to follow the delineated procedures as established within the trust referenced above. As such, the Plaintiff comes to this court with unclean hands. Ninth Affirmative Defense Failure to comply with Florida Statute 559,715 (thirty day notice of. assignment). As ninth Affirmative Defense, Defendant asserts and allege all other facts referenced in the previous affirmative defenses and that Plaintiff failed to comply with notice of assignment as provided by Florida law. “An Page 12 of 23, assignee of a mortgage and note must give the debtor written notice of such assignment within thirty (30) days after the assignment.” 559.715 Fla. Stat. (2009). Tenth Affirmative Defense Collateral Source Payments Defendant demands credit for and application of any and all collateral source payments Plaintiff or its trust beneficiaries 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, Eleventh Affirmative Defense Equitable Di of Lien D Impairment of Title, Impai tof Duty to Mitigate, and Lack of Mutuality. To the extent Plaintiff, and or its predecessors in ownership to the mortgage loan attempted to sell and/or transfer the subject mortgage loan. into the vehicle of an investment trust or other mortgage backed security, it did so without the consent or knowledge of the Defendant. In doing so, Page 13 of 23 Plaintiff and/or its predecessors impaired Defendant's’ title to its property by generating a cloud upon Defendants’ title by obfuscating clear ownership of the debt and its accompanying lien. Specifically, Plaintiff and/or its predecessors use of Article 9 of the Uniform Commercial Code in an effort to securitize the loan is without clear authority and indeed in conflict with Article 9°s scope restrictions, which excludes the creation or transfer of liens in real estate. In essence, Plaintiff and/or its predecessors have so obscured the ownership of the promissory note from the lien of the mortgage that it has hindered Defendants’ ability to verify “ownership” and “holdership” of the core debt obligation, the note, and in turn, their ability to deal fairly and reasonably with their property whether it is to refinance, sell it, or pay off the alleged obligations upon it, and therefore, renders the lien of the mortgage unconscionable. Further, the mortgage constituting the subject matter of this action is unconscionable in material part as it allows for division of a single legal contract into indefinite multiple pieces, and further a separation of the note from the mortgage in violation of common law and public policy. Specifically, paragraph 20 of the Mortgage grants the unilateral right to the owner and holder of the Note to sell “the Note or a partial interest in the Page 14 of 23 Note (together with this Security Instrument)” to any number of people without the consent or knowledge of the debtor. The Note imposes waiver of the Defendant’s right to demand presentment of the Note from the “Note Holder.” This waiver insulates the Mortgagee from the requirement of “Presentment.” This results in the division of the Note Holder from the Mortgagee. When the Note interest is divided and dispersed among numerous investors — thereafter “Note Holders” also known as “Certificate Owner” pursuant to the terms of the trust Pooling and Service Agreement — and the Mortgage (Security Instrument) is assigned to a separate party — thereafter the “Mortgage” — the Note and Mortgage lack mutuality of obligation and/or remedy. The Defendants are afforded no compensating means of ascertaining, verifying or otherwise, with certainty, determining the ownership of the Note. As the “mortgage follows the note,” this unreasonably and inequitably impairs the Defendants’ ability to deal in their property or mitigate their loss, Twelfth Affirmative Defense No Right to Accelerate As pled, the obligation sued upon by Plaintiff does not contain or allow for the acceleration of the debt, allegedly due, unless Plaintiff has fulfilled the condition precedent of notice under paragraph 22 of the Page 15 of 23 mortgage prior to filing snit. On information and belief, Plaintiff failed to comply with this condition precedent by failing to give the requisite notification before filing suit. Thirteenth Affirmative Defense Lack of Consideration On information and belief, the named mortgagee, MERS, gave no consideration to either Countrywide Home Loan, Inc or the Defendant in exchange for the grant of the alleged mortgage sued upon. Fourteenth Affirmative Defense Invalid Mortgage Conveyance On information and belief, the Mortgage sued upon by the Plai was not conveyed to the original note holder, but to MERS. As such, it constitutes a Void grant, At inception the note and mortgage were bifurcated and delivered to two different entities in violation of the common law against separating a mortgage from the note. Furthermore, the attempted grant to MERS is, as a matter of law, void as a failure of title conveyance for want of a substantive Grantee interest: “MERS solely as nominee” is a legally insufficient or indefinite conveyable interest. The attempted conveyance of the mortgage to MERS with these infirmities Page 16 of 23 constitutes a failure of grant and therefore, no mortgage interest passed to the named Mortgagee, MERS. Fifteenth Affirmative Defense FAILURE TO COMPLY WITH APPLICABLE FANNIE MAE/FREDDIE MAC SINGLE FAMILY LOAN SERVICING REQUIREMENTS/ FAILURE OF GOOD FAITH AND FAIR DEALING: UNFAIR AND UNACCEPTABLE LOAN SERVICING: Defendants reassert, allege and incorporate herein their statements of facts set out hereinabove. On information and belief, Defendants assert that 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 the Defendants access to the residential mortgage servicing protocols applicable to the subject note and mortgage. VIOLATION OF 15 § 1692 ET SEQ., and F.S. 559.552 On information and belief, Plaintiff violated provisions of the Federal Fair Debt Collection Practices Act at 15 USC 1692, et. seq. and provisions of the Florida Consumer Practices Act at F.S, 559.552 because it did not have any right to enforce collection of this Mortgage and Note because it did Page 17 of 23 not validate the debt as requested by the Defendants, 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 and it simply does not have a mortgage on the subject property. 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 tight does not exist because the Plaintiff did not comply with the applicable federal default servicing obligations and guidelines prior to filing this foreclosure action. “In collecting consumer debts, no person shall ... claim, attempt, or threaten to enforce a debt when such person asserts the existence of some other legal right when such person knows that the right does not exist, 559.72(9) Fla. Stat, (2009) The FCCPA applies to anyone attempting to collect a consumer debt, unlawfully and F.S. 559,72 "includes all allegedly unlawful attempts at collection consumer claims." Seaton Jackson v. Wells Fargo Homemortgage, Inc., 12 Fla. L. Weekly Supp. 188 (Fla. 6th Circuit 2004) citing Williams v. Streeps Music Co., Inc., 333 So. 2d 65 (Fla. 4th DCA Page 18 of 23 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") The National Housing Act, 12 U.S.C. 1710(a) imposes specific statutory obligations on all creditors across the United States who service federally-insured home loans that requires the creditor to engage in very specialized default loan servicing and loss mitigation to avoid foreclosure when a borrower defaults on a home loan insured by the federal government for reasons beyond their control. The creditor is fully insured in exchange for agreeing to abide by these customer servicing obligations. Compliance with the default loan servicing federal regulations promulgated by HUD, pursuant to the National Housing Act, 12 U.S.C. 1710(a) can be held to be a contractual condition precedent to instituting a foreclosure action and the failure of the Plaintiff to implement foreclosure avoidance servicing is an appropriate subject for a counterclaim for declaratory and injunctive relief. See: U.S. v. Trimble, 86 F.R.D. 435 (S.D. Fla. 1980) and Cross v. Federal National Mortgagee Association, 359 So. 2d 464, 465 (Fla. 4th DCA 1978): "A mortgage foreclosure is an equitable action and thus equitable defenses are most appropriate [I]t appears to us Page 19 of 23 that given the purpose of.... the recommended efforts to obviate the necessity of foreclosure, any substantial deviation from the recommended norm might be construed by the trial court under the heading of an equitable defense." Id., 359 So, 2d at 465. (also see U.S. v. Trimble, 86 F.R.D. 435 (S.D. Fla. 1980), where the court found that compliance with applicable federal laws can be upheld as equitable defense to deny a creditor the judicial remedy of foreclosure.) Plaintiff must show that it has federal authority to foreclose — that it complied with the pre-foreclosure default prevention procedures, Plaintiff has not shown that it owns the Note and the Mortgage. Plaintiff alleged only that it was to be assigned the Mortgage in the future.. Further, the Plaintiff failed to allege in its Complaint that the Note was ever assigned. ‘There are certain required steps a servicer ofa loan must do before foreclosing, which are set forth in 24 CFR 203.604 and 24 CFR 203.605 for FHA loans and other provisions for other types of federally backed loans. The federal government has deemed that pre-suit default prevention procedures are a condition precedent to filing a foreclosure action and must be utilized before foreclosure may be instituted. F.S. 559.72(9) provides that it is illegal to enforce collection when knowing that other legal rights exist. The face of the mortgage provides prima facie evidence that this is a Page 20 of 23 federally backed mortgage. The Plaintiff must demonstrate that it complied with all federal regulations on pre-suit default prevention procedures. That was not done in this case. Seventeenth Affirmative Defense FAILURE TO PLEAD SALE, TRANSFER OR ASSIGNMENT TO AN INSTITUTIONAL INVESTOR Plaintiff failed to plead that Countrywide Home Loan, Inc. sold, transferred, or otherwise assigned the subject note and mortgage to an institutional investor as defined in Florida Statute 494.001(14). Defendant denies Countrywide Home Loan, Inc. sold, transferred or otherwise assigned the subject note to an institutional investor pursuant to Fla. Stat. 494.0075 and demands strict proof thereof by clear and convincing evidence. Defendant denies the note and mortgage were ever sold by Countrywide Home Loan, Inc. and thus were never deposited into the trust. Defendant denies the note and mortgage were ever trust property and the plaintiff, therefore, never had standing as a trustee on this note and mortgage. Defendant demands strict proof thereof by clear and convincing evidence, Eighteenth Affirmative Defense FAILURE TO RECORD ASSIGNMENT WITHIN 30 DAYS Plaintiff failed to record the Assignment of Mortgage within 30 days Page 21 of 23 of the alleged assignment of the Note and Mortgage as required by Fla. Stat. 494,0075(3). Defendant's failure to record the assignment pursuant to Florida Law evidences that the plaintiff Trustee had no such assignment as plead at the time of filing this complaint. Plaintiff had no standing to initiate this action and demands strict proof thereof by clear and convincing evidence. CLAIM FOR ATTORNEY’S FEES Defendant, Donna Biafore hereby request they be awarded attomey’s fees pursuant to the terms of the promissory note and mortgage Plaintiff is seeking to enforce and section 57.105(7), Florida Statutes (2009). WHEREFORE CLAUSE AND DEMAND FOR JURY TRIAL Wherefore, Defendant demands judgment against Plaintiff and requests the court deny Plaintiff's requested relief of foreclosure, and award reasonable attorney’s fees and costs to Defendants; order discharge, release or cancellation of the alleged mortgage and send Plaintiff forthwith without day. Furthermore, Defendants demand trial by jury as to all issues concerning the enforceability of the Note, should it be deemed governed by the statutory/UCC law as Plaintiff has demanded right to a money judgment, and all other issues as they are inseparably linked by common facts to the note. Page 22 of 23 2022 Placida Ra Englewood, FL 34224-5204 (941) 475-1966 (941) 475-0729 facsimile FBN; 0134902 Jacqulya@macklawfirm.org CERTIFICATE OF SERVICE I HEREBY CERTIFY, that a true and correct copy of the foregoing was furnished to Maria M Solomon, Esq., David J Stern, PA, 900 S. Pine Island Rad., Plantation FL 33324, via e-mail msolomon@dstern.com ‘and U.S. Mail on this day September, 2010. tulyn Mack, Esquire Page 23 of 23