Académique Documents
Professionnel Documents
Culture Documents
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Defendants. t£.
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Plaintiff. Deutsche Bank National Trust Company. as Trustee Under Novastar Mortgage
funding Trust, Series 2007-1 (,-Deutsche Bank") and Defendants Maria Lilian Hernandez and Ivan
Saenz pursuant to fla. R. Civ. P. 1.420(aXl )(B). file this Stipulation of Dismissal and agree that this
action is dismissed with prejudice, and that each party is to bear its own attorneys' fees and costs.
The Court reserves jurisdiction to enforce the terms of that certain settlement agreement entered into
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DEFENDANTS' AMENDED ANSWER, AFFIRMATIVE DEFENSES AND
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COUNTERCLAIM
undersigned counsel, hereby file this Amended Answer Affirmative Defenses and
paragraph and so the allegations are expressly, directly and explicitly denied, and strict
attached to the Complaint. The Homeowners are without knowledge as to the remaining
The Arcia Law Firm, PL, 3350 S W 148·Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
www.Ardal.awhirm.com
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allegations, and so the allegations are expressly, directly and explicitly denied, and strict
paragraph, therefore the allegations are expressly, directly and explicitly denied and strict
paragraph, therefore the allegations are expressly, directly and explicitly denied and strict
paragraph, therefore the allegations are expressly, directly and explicitly denied and strict
attached to the Complaint. The Homeowners are without knowledge, however, as to the
recording information, and so the allegations are expressly, directly and explicitly denied,
and strict proof is demanded thereon. The Homeowners are without knowledge as to the
remaining allegations, and so the allegations are expressly, directly and explicitly denied,
paragraph, therefore the allegations are expressly, directly and explicitly denied and strict
2
The Arcia Law Firm, PL, 3350 S. W J 48- Avenue, Suite J J 0, Miramar, FL 33027
Telephone 800-710·7102 - facsimile 954433·8389
www.Ardai.awilrm.com
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9. The Homeowners admit that they own the property in question.
10. The Homeowners expressly, directly and explicitly deny the material
11. The Homeowners expressly, directly and explicitly deny the material
allegations of this paragraph and strict proof is demanded thereon, in that there has been a
failure to comply with both ~ 22 of the Mortgage attached to the Mortgage Foreclosure
12. The Homeowners expressly, directly and explicitly deny the material
13. The Homeowners are without knowledge of the material allegations of this
paragraph, therefore the allegations are expressly, directly and explicitly denied and strict
14. The Homeowners are without knowledge of the material allegations of this
paragraph, therefore the allegations are expressly, directly and explicitly denied and strict
Any allegations of the Complaint not expressly admitted herein are expressly,
The Homeowners hereby demand trial by jury as to all issues so triable thereon.
WHERElFORE, The Homeowners pray that this Honorable Court dismiss this
3
The Arcia Law Firm, PL, 3350 S. W J48" Avenue, Suite J J0, Miramar, FL 33021
Telephone 800-ll0-JJ02 - Facsimile 954-433-8389
wwwArciaLawFirm.com
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1. The mortgage and note in the above-styled matter are void ab initio for
lack of compliance with the Truth in Lending Act ("TILA"), 15 US.c. §1601, et seq.,
and Regulation Z, 12 C.F.R. §226.1, et seq. ("Regulation Z" or "Reg Z") Specifically,
Plaintiff failed to deliver to the Homeowners all material disclosures required by TILA
and Regulation Z.
2. The mortgage and note in the above-styled matter are void for lack of
compliance with the Truth in Lending Act, 15 US.C. §1601, et seq., and the Home
3. This court lacks subject matter jurisdiction over this action inasmuch as
Plaintiff has not, and cannot establish it is the real party in interest to enforce the
4. The Plaintiff has failed to state a claim upon which relief may be granted
inasmuch as Plaintiff has not, and cannot establish it is the real party in interest to enforce
the mortgage and/or note that is the subject of the above-styled action.
5. The Plaintiff lacks standing to pursue its claims against the Homeowners
inasmuch, and/or lacked standing at the time this action was filed as the Plaintiff has not,
and cannot establish it is the real party in interest to enforce the mortgage and/or note that
precedent to institution of this action because the "Lender" failed to mail a notice of
4
T111= Arcia Law Firm, PL, 33505. W. 148" Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
www.ArciaLawFirm.com
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acceleration to the Homeowners and failed to wait 30 days after mailing the notice of
7. Any and all claims against Homeowners are offset by the damages owed
8. Plaintiff and/or its assignor failed to comply with the conditions and terms
of the mortgage and note and/or 12 u.s.c. §260l, et seq ("RESPA"), with respect to the
and the escrow accounts and payments as required under the note and the mortgage. As a
result of the improperly collecting and posting of payments to The Homeowners' account
and improper payments of moneys that Plaintiff and/or its assignor paid out on The
Homeowners' account, Plaintiff and/or its assignor is estopped or has waived its right to
claim a default, and or is otherwise before the Court with unclean hands and cannot
foreclose.
Federal law, due to the improper demand for payments from The Homeowners. Thus,
Plaintiff is estopped and/or has waived its right to foreclose, and is otherwise before this
10. The Complaint should be dismissed for failure to state a cause of action
upon which relief may be granted since Plaintiff never acquired the note and or mortgage
and or never had possession of the note and or mortgage, and or did not have such
possession when they were lost, and or never properly acquired the note and or mortgage
under the Uniform Commercial Code, nor the right to reestablish and enforce the note
5
The Areta Law Firm, PL, 3350 S. W 14S" II venue, Suite 110, Miramar, FL 33021
Telephone 800-710-1102 - Facsimile 954-433-8389
www.Arcial.awhrm.com
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and or mortgage that it seeks to reestablish and or enforce and or foreclose under Florida
11. Plaintiff has failed to join indispensable parties; to wit, the party who
owns the mortgage and note and/or did so when the mortgage and note were lost.
12. Plaintiff cannot maintain this action inasmuch as Plaintiff and/or its
assignor has failed to comply with the post-closing loan disclosure requirements of 12
13. Plaintiff cannot maintain this action since it breached the contract with the
amount in excess of that required under the mortgage, increasing the Homeowners'
longer meet their obligations under the mortgage contract, and excusing them from
14. The mortgage upon which this action is premised is void and
conduct business in Florida at the time the loan was made as a federally chartered bank,
company.
6
The Areta Law Firm, PL., 3350 S. W. 148" Avenue, Suite tto. Miramar, FL 33027
Telephone 800·770·7102 - Facsimile 954-433·8389
www.ArciaLawFirm.com
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15. The mortgage upon which this action is premised is further void and
unenforceable, because MERS failed to register with the Florida Division of Financial
16. The mortgage is void for common law fraud in the inducement inasmuch
as Plaintiff and/or its assignor misrepresented the actual amount of finance charges and
interest rate that the Homeowners would pay under the mortgage and note that is the
subject of this action. The Homeowners would not have entered into the mortgage and
note had they been provided truthful and accurate disclosures by the lender in the
transaction.
COUNTERCLAIM
follows:
and costs.
issue herein took place within Miami-Dade County, Florida, and the parties to this
7
The Areta Law Film, PL., 3350 S. W 748'" Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
wwwArciaLawFirm.com
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Inc. (hereinafter "NMI") as a creditor within the meaning ofthe Federal Truth in Lending
Act ("TILA") 15 U.S.C. §1601 et. seq., when the Homeowners entered into the loan
residence, the same property that is the subject of this foreclosure, and governed by TILA
and Regulation Z.
MERSINMI to obtain home secured credit primarily for personal family or household
use.
failed to comply with the disclosure requirements ofthe Federal Truth in Lending Act.
10. DEUTSCHE BANK claims to hold the Mortgage and Mortgage Note by
reasonably believed to have received an assignment of all claims as well as all liabilities
11. The Truth in Lending disclosure errors alleged herein are apparent on the
face of the disclosure statement, and or the face of the documents assigned and or can
8
The Arcia Law Firm, P.L., 3350 S. W. 14S" Avenue, Suite 170, Miramar, FL 33027
Telephone 800-770-7702 - Facsimile 954-433-8389
www.ArciaLawFirm.com
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disclosure statement, any itemization of the amount financed, the note, or any other
disclosure of disbursement; and or the disclosure statement does not use the terms or
format required to be used, within the meaning of 15 U.S.C. § 1641. Accordingly, when
DEUTSCHE BANK took a voluntary assignment ofthe subject mortgage and note, it
knew or should have known about the existence of the violations of state and federal set
forth herein.
TILA errors alleged and is therefore primary liable to The Homeowners under TILA.
13. All conditions precedent to bringing the instant action have been
14. In order to bring this action, Counterclaimants have retained the services
of the undersigned law firm, and has agreed to pay said law firm a reasonable fee, for I
which Counter-defendant should reimburse Counterclaimants in accordance with the
terms of the mortgage annexed as an exhibit to the original Complaint and incorporated
by reference herein, as well as, any other applicable federal or state law or statute
CAUSES OF ACTION
9
The Arcia Law Firm, PL, 3350 S. W. 148' Avenue, Suite 110, Miramar, FL 33021
Telephone 800·110·7102 - Facsimile 954-433·8389
www.ArdaLawFirm.com
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17. On or about the closing date of the subject transaction, and in order to
intentionally induce the Homeowners to enter into the transaction, MERSINMI, by and
through its authorized representatives at the closing, provided the Homeowners with false
information regarding the finance charges and interest rate that Homeowners would be
18. These representations were false, and/or MERSINMI should have known
proper disclosure of finance charges and applicable interest rates are federally mandated
under TILA.
by, inter alia, (1) entering into the subject Mortgage, (2) paying significant closing costs
and other expenses at the closing on this transaction, (3) faithfully paying their interest
and principal on the Mortgage in question for several years, and (4) foregoing other
DEUTSCHE BANK, for damages, interest, attorneys' fees, costs, and such other relief as
10
The Arda Law Firm, PL, 3350 S. W 148' Avenue, Suite 110, Miramar, fL 33021
Telephone 800-110-7702 - Facsimile 954-433-8389
www.Arcial.awrirm.com
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MARIA LILIAN HERNANDEZ. ET. AL. - -.
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Defendants. tf\
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Plaintiff, Deutsche Bank National Trust Company. as Trustee Under Novastar Mortgage
Funding Trust, Series 2007-1 (Deutsche Bank") and Defendants Maria Lilian Hernandez and Ivan
Saenz pursuant to Fla. R. Civ. P. 1.420(a)(1 )(B).liIe this Stipulation of Dismissal and agree that this
action is dismissed with prejudice, and that each party is to bear its own attorneys' fees and costs.
The Court reserves jurisdiction to enforce the terms of ihat certain settlement agreement entered into
Series 2007-1
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as Trustee Under Novastar Mortgage Funding Trust.
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Jo athan R. Rosenn, Esq.
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Plaintiff, Deutsche Bank National Trust Company. as Trustee Under Novastar Mortgage
Funding Trust Series 2007-1 ('"Deutsche Bank") and Defendants Maria Lilian Hernandez and Ivan
Saenz pursuant to Fla. R. Civ. P_ 1.420(a)(1 )(B).liIe this Stipulation of Dismissal and agree that this
action is dismissed with prejudice, and that each party is to bear its own attorneys' fees and costs.
The Court reserves jurisdiction to enforce the terms of that certain settlement agreement entered into
Series 2007-]
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as Trustee Under Novastar Mortgage Funding Trust.
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Jo athan R. Rosenn, Esq.
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24. At all times material hereto, the November 30, 2006 transaction was
governed by the Federal Truth in Lending Act 15 U.S.c. Sec. 1601 et. seq. and subject to
25. MERS, and or NMI engaged in the business of extending consumer credit
26. At all times material hereto, MERS, and or NMI, in the ordinary course of
business regularly extended or offered to extend consumer credit for which a finance
charge is or may be imposed by a written agreement or payable in more than four [4]
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installments.
consumer credit transaction with MERS, and or NMI in which the extended consumer
credit transaction was subject to a finance charge and was initially payable to MERS, and
orNMI.
a copy of the promissory note similar to the note evidencing the transaction, which the
11
The Arcia Law Firm, P.L., 3350 S.W 148' Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
www.ArciaLawFirm.com
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29. As part of the consumer credit transaction, MERS, and or NMI retained a
32. In the course of the consumer credit transaction, NMI and or MERS failed
to deliver all material disclosures required by TILA and Regulation Z including the
following:
a. Failing to clearly and accurately disclose the amount financed using that
term in violation in Reg. Z 226.18(b) and §1638(a)(2)(A).
b. Failing to clearly and accurately disclose the finance charge using that
term in violation of Reg. Z 226.4,226.18 and §1638(a)(3).
e. Failing to clearly and accurately disclose the total of payments using that
term in violation of Reg. Z 226. 18(h) and §1638(a)(5); and/or
12
The Arcia Law Finn, PL, 33505. W 148-lIvenut', Suite 110, Miramar, fL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
www.llrdaLawFirm.com
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c. NMI and or MERS violated Reg Z 226. 19(a) and (b) by failing to timely
provide any of the early variable disclosures required by Reg Z 226. 19(a);
and Reg. Z pursuant to §1640(a) & (e), and given that DEUTSCHE BANK (as a
voluntary assignee) knew or should have know of the foregoing violations of law,
a. Twice the finance charge in connection with this transaction but not less
than $200.00 for the initial errors, and for any inaccurate variable disclosure at each rate
change; and/or
35. The Homeowners hereby demand trial by jury as to all issues so triable
thereof.
WHEREFORE, The Homeowners pray this Court take jurisdiction of this case;
award The Homeowners twice the finance charge in connection with the transaction, but
not less than $200 nor more than $2,000, as provided under 15 U.S.C. 1640(a) for the
initial errors for each Reg. Z 226.19 error, each Reg. Z 226.20(a) error, and each Reg. Z
13
The Arcia Law Firm, PL, 3350 S. W. 148" Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
www.ArciaLawFirm.com
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226.20(c) error, and at each rate change, award actual damages in an amount to be
established at trial, for the initial disclosure errors, for the variable errors, and at each rate
change, and at each obligation to disclose under Reg. Z 226.19, Reg. Z 226.20(a) and
Reg. Z 226.20(c), and prejudgment interest on all damages, and award costs and
attorney's fees as provided by 15 U.S.C. §1640(a)&(e), § 1641, F.S. §S7.10S and such
COUNT III
VIOLATION OF THE REAL ESTATE SETTLEMENT
PROCEDURES ACT (RESP A)
BANK for violations of the Federal Real Estate Settlement Procedures Act.
38. DEUTSCHE BANK and or MERS and/or its assignor failed to comply
with the conditions and terms of the mortgage and note and/or 12 U.S.C. §260l, et seq
(RESP A), with respect to the proper computation, collection and application of The
39. Alternately, DEUTSCHE BANK and or MERS and/or its assignor has
collected payments, but failed to properly credit The Homeowners' account, and/or
collected mortgage payments and/or escrow payments and did not properly credit or post
the payments to The Homeowners' account in violation of the terms of the noteand the
mortgage.
14
The Arcia Law Firm, P.L., 3350 S. W. 148·Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7702 - Facsimile 954-433-8389
www.Arcial.awiirm.com
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and/or the assignor or servicer during the term of the loan that DEUTSCHE BANK, and
or MERS andlor its assignor or servicer did not properly post to The Homeowners'
they paid during the term of the loan and all moneys collected by DEUTSCHE BANK
and or MERS or the assignor or servicer under the mortgage and note and all money
DEUTSCHE BANK and or MERS and or their assignor paid out on the Homeowners'
account because of the non-compliance with the note and the mortgage.
Homeowners' account and improper payments of moneys that DEUTSCHE BANK and
or MERS and or its assignor paid out on The Homeowners' account, DEUTSCHE BANK 1
and or MERS or its assignor is estopped or has waived its right to claim a default, and or
is otherwise before the Court with unclean hands and cannot foreclose.
WHEREFORE, The Homeowners pray that this Honorable Court take jurisdiction
of this case; order an accounting under the mortgage and note of all money collected and
paid out by DEUTSCHE BANK and or MERS and its assignors, restore and/or return
any and all overpayments made by The Homeowners and/or improperly paid out by
DEUTSCHE BANK and/or MERS and their assignors, dismiss DEUTSCHE BANK's
complaint with prejudice, decline to reestablish the note, and/or decline to enforce the
note as pled, and award costs and reasonable attorney fees as provided by F.S. §57.105,
the mortgage and note, and such other relief as this Court deems just and proper.
15
The Arcia Law Firm, PL, 3350 S. W 148' Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
www.Ardal.awi lrm.com
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about November 30, 2006, a copy of which is attached to the original Complaint and
45. The Homeowners have complied with all terms of the agreement, or are
agreement.
46. Counter-defendant has breached the mortgage contract between the parties
b. Failing to properly accelerate the mortgage and note by failing to give the
proper notice prior to bringing this action to foreclose as required by paragraph 22 of the
mortgage;
from the Homeowners under the mortgage and note; and/or in the alternative,
d. Force placing hazard, wind, fire andlor flood insurance upon the
Homeowners and requiring that Homeowners pay the premium for said insurance.
16
The Areta Law Firm, PL, 33505. W 148" Avenue, Suite 110, Miramar, FL 33027
Telephone 800-ll0-7102 - Facsimile 954-433-8389
www.Arcial.awiirm.com
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47. As a direct and proximate cause of the aforementioned breaches of the
mortgage contract, the Homeowners suffered damages, were no longer able to make the
payments under the mortgage contract, causing the above-styled foreclosure action to be
WHEREFORE, The Homeowners pray that this Honorable Court take jurisdiction
of this case; order an accounting under the mortgage and note of all money collected and
paid out by DEUTSCHE BANK and/or MERS and its assignors, restore and/or return
any and all overpayments made by The Homeowners and or improperly paid out by
DEUTSCHE BANK and/or MERS and their assignors, dismiss Plaintiffs complaint with
prejudice, decline to reestablish the note, and or decline to enforce the note as pled, and
award costs and reasonable attorney fees as provided by F.S. § 57.105, the mortgage and
note, and such other relief as this Court deems just and proper.
1
COUNT V - UNJUST ENRICHMENT
the Homeowners to ensure that they understood all fees which would be paid to the
Counter-defendant in order for the Homeowners to obtain credit and to not charge any
fees which were unrelated to the settlement of the loan and without full disclosure to the
Homeowners.
17
The Arcia Law Firm, P.L., 3350 S. W 148' Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
www.Ardai.awiirm.com
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mortgage with an increase in the interest rate due to the Yield Spread Premium ("YSP")
benefits from their actions of charging a higher interest rate, fees, rebates, kickbacks,
profits and gains and YSP fee unrelated to the settlement services provided at closing.
Homeowners, and maintenance of said unjust enrichment would be contrary to the rules
WHEREFORE, The Homeowners pray that this Honorable Court take jurisdiction
of this case; order an accounting under the mortgage and note of all money collected and
paid out by DEUTSCHE BANK and/or MERS and its assignors, restore andlor return
any and all overpayments made by The Homeowners and or improperly paid out by
DEUTSCHE BANK andlor MERS and their assignors, dismiss Plaintiffs complaint with
prejudice, decline to reestablish the note, and or decline to enforce the note as pled, and
award costs and reasonable attorney fees as provided by F.S. § 57.105, the mortgage and
note, and such other relief as this Court deems just and proper.
contracting to provide mortgage loan services and a loan program to the Homeowners,
18
The Areta Law Firm, PL, 3350 S. W. 14S" Avenue, Suite 170, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
www.ArdaLawFirm.com
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which was not only to be best suited to the Homeowners given their income and
expenses, but by which Homeowners would also be able to satisfy their obligations
without risk of losing their home, were "fiduciaries" in which Homeowners reposed trust
and confidence. This is especially true given that Homeowners were not and are not
lenders.
into a mortgage transaction which was contrary to the Homeowners' stated intentions;
their home.
either directly or through its assignors, were willful, wanton, intentional, and with a
callous and reckless disregard for the rights of the Homeowners justifying an award of
not only actual compensatory but also exemplary punitive damages to serve as a deterrent
not only as to future conduct of the named counter-defendant herein, but also to other
Counter-defendant, DEUTSCHE BANK, for damages, interest, attorneys' fees, costs, and
19
The Areta Law Firm, PL, 3350 S. W 748'" Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 954433-8389
www.ArciaLawFirm.com
\...J
59. This is an action under the Florida Fair Lending Act, F.S. §494.00796
taken from MERS, NMI and/or any other assignors, violated the FFLA by, inter alia:
f. Calling the subject loan due even though the borrower has
complied with the terms of the loan, and/or in the alternative;
1. Charging late fees that exceed five percent (5%) of the payment,
and/or in the alternative;
20
The Arda Law Firm, PL, 3350 S. W 74S- Avenue, Suite 110, Miramar, FL 33027
Telephone SOO-110-7702 - Facsimile 954-433-8389
www.Arcial.awiirm.com
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62. As a direct and proximate result of the foregoing violation(s) of the FFLA,
DEUTSCHE BANK, for actual damages, including forfeiture of all interest paid or
with the subject loan transaction, attorneys' fees, costs, and such other relief as may
COUNT VIII
VIOLATIONS OF THE HOME OWNERSHIP
EQUITY PROTECTION ACT (HOEPA)
,
63. Counterclaimant realleges and incorporates by reference the allegations of
64. TILA's §1639(a)(I), Reg Z 226.31 & Reg Z 226.32 applied to the
transaction at issue in the above-styled matter because the loan meets the requirements
for a 15 U.S.C. §1639 and Reg Z 226.32 transaction according to the points and fees test
65. In addition thereto, or in the alternative, TILA treats the collected but
improperly disclosed finance charges from the subject transaction as part of the finance
charge, which independently trigger the points and fees test and or T-Bill Test of Reg Z
226.32.
21
The Arcia Law Firm, PL., 33505. W 148" Avenue, Suite no, Miramar, FL 33021
Telephone 800-110-7102 - Facsimile954-433-8389
www.Ardal.awiirm.com
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a. You are not required to complete this agreement merely because you
have received these disclosures or have signed a loan application.
b. If you obtain this loan, the lender will have a mortgage on your home.
You could lose your home, and any money you have put into it, if you
do not meet your obligations under the loan.
violated §1639(a)(2) by failing to provide (A) in the case of a credit transaction with a
fixed rate of interest, the annual percentage rate and the amount of the regular monthly
payment; or (B) in the case of any other credit transaction, the annual percentage rate of
the loan, the amount of the regular monthly payment, a statement that the interest rate and
1
monthly payment may increase, and the amount of the maximum monthly payment,
based on the maximum interest rate allowed pursuant to section 3606 of Title 12.
assignment taken from MERS, NMI and any other assignors, violated §1639(b) by failing
to give the required disclosure not less than 3 business days prior to consummation of the
transaction.
assignment taken from MERS, NMI and any other assignors, violated §1639(c) by taking
a mortgage in which the consumer must pay a prepayment penalty for paying all or part
of the principal before the date on which the principal is due and by using a method of
22
The IIrcia Law Firm, PL, 3350 S. W 148"lIvenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 9540433-8389
www.llrdaLawFirm.com
computing a refund of unearned scheduled interest less favorable to the consumer than
the actuarial method (as that term is defined in section 1615(d) of the TILA).
assignment taken from MERS, NMI and any other assignors, violated §1639(e) by taking
a mortgage whose terms include a term under which the outstanding principal balance
could increase at any time over the course of the loan because regular periodic payments
assignment taken from MERS, NMI and any other assignors, violated §1639(f) by
assignment taken from MERS, NMI and any other assignors violated §1639(e) by taking
violations a failure to deliver the material disclosures for the purpose of §1635 of TILA.
74. The Homeowners are entitled to the special rescission and damage rules
The Homeowners hereby demand trial by jury as to all issues so triable thereof.
23
The Arcia Law Firm, PL, 3350 S. W 14S-Avenue, Suite llO, Miramar, FL 33()27
Telephone 800·710·7102 - Facsimile 954-433·8389
www.Arcial.awliirm.com
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WHEREFORE, The Homeowners pray this Court take jurisdiction of this case;
rescind the transaction of November 30, 2006; order that DEUTSCHE BANK take all
action necessary to terminate any security interest in the Homeowners' property created
under the transaction, that the Court declare all such security interests void, including but
not limited to the mortgage related to the transaction, order the return to the Homeowners
BANK, and its assignors, in connection with the transaction; enjoin DEUTSCHE BANK
during the pendency of this action and permanently thereafter from instituting
from recording any deeds or mortgages regarding the property or from otherwise taking
any steps to defraud the Homeowners of ownership of that property; award the
Homeowners twice the finance charge in connection with this transaction, but not less
than $200 nor more than $2,000, as provided under 15 U.S.C. 1640(a) & (e); award the
Homeowners twice the finance charge in connection with this transaction, but not less
than $200 nor more than $2,000, as provided under 15 U.S.C. 1640(a) for the initial
errors for each Reg Z 226.19 error, each Reg Z 226.20(a) error, and each Reg Z 226.20(c)
error, and at each rate change, order that the right to retain proceeds vests in the
Homeowners; award actual damages in an amount to be established at trial, for the initial
disclosure errors, for refusal to rescind, and at each rate change and each obligation to
disclose under Reg Z 226.19, Reg Z 226.20(a) and Reg Z 226.20(c), and prejudgment
interest on all damages, including the rescission amount, the special rescission and
24
The Areta Law Firm, PL, 3350 s. W. 14S· Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7102- Facsimile 954433-8389
www.Arcial.awhrm.com
<:»
& Reg Z 226.32. and award costs and reasonable attorney fees as provided by 15 U.S.C.
1640(a)&(e), F.S. §57.105 and such other relief as this Court deems just and proper.
information to the Credit Reporting Agencies, including but not limited to Experian,
Equifax, and TransUnion, under the Federal Fair Credit Reporting Act.
having negative information on their credit reports and the lowering of their FICO scores.
to be proven at the time of trial for all violations of the Fair Credit Reporting Act which
negligent non-compliance with the Fair Credit Reporting Act pursuant to 15 USC
§168l(0).
counter-defendant for its willful noncompliance with the Fair Credit Reporting Act
25
The Areta Law firm, PL, 3350 S. W 748- Avenue, Suite J 10, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
wwwArciaLawFirm.com
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DEUTSCHE BANK, for actual damages, attorneys' fees, costs, and such other relief as
COUNT X - USURY
All contracts for the payment of interest upon any loan, advance of money, line of
credit, or forbearance to enforce the collection of any debt, or upon any obligation
whatever, at a higher rate of interest than the equivalent of 18 percent per annum
simple interest are hereby declared usurious.
83. Florida Statute §687.02 also provides that if such loan, advance of money,
$500,000 in amount or value, then no contract to pay interest thereon is usurious unless
the rate of interest exceeds the rate prescribed in §687.071, which requires that the
[1]t shall be usury and unlawful for any person ... to reserve, charge, or take for
any loan, advance of money, line of credit, forbearance to enforce the collection
of any sum of money, or other obligation a rate of interest greater than the
equivalent of 18 percent per annum simple interest, either directly or indirectly,
by way of commission for advances, discounts, or exchange, or by any contract,
contrivance, or device whatever whereby the debtor is required or obligated to
pay a sum of money greater than the actual principal sum received, together with
interest at the rate of the equivalent of 18 percent per annum simple interest.
26
The Arcia Law Firm, PL, 3350 S. W. 148" Avenue, Suite 110, Miramar, FL 33027
Telephone S00-770-7102 - Facsimile 954-433-8389
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<::
86. The Homeowners are debtors within the meaning of and or as defined by
87. The transaction at issue herein was a written credit agreement within the
meaning of and or as defined by Fla. Stat. §687.0304(1)(a) and Fla. Stat. §687.0304(2).
assignment taken from MERS, NMI and any other assignors, violated F.S. §687.03(1) in
with the above described consumer credit transaction an annual percentage rate in excess
of25%.
assignment taken from MERS, NMI and any other assignors, willfully reserved, charged
and collected from the Homeowners in the November 30, 2006 transaction more than the
18% legal rate on the above described consumer credit transaction, in violation ofF.S.
Any person ... willfully violating the provisions of s. 687.03 shall forfeit the
entire interest so charged, or contracted to be charged or reserved, and only the
actual principal sum of such usurious contract can be enforced in any court in this
state, either at law or in equity; and when said usurious interest is taken or
reserved, or has been paid, then and in that event the person who has taken or
reserved, or has been paid, either directly or indirectly, such usurious interest shall
forfeit to the party from whom such usurious interest has been reserved, taken, or
exacted in any way double the amount of interest so reserved, taken, or exacted.
27
The Arda Law Firm, P.L., 3350 S. W. 148" Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile954-433-8389
www.Arcial.awiiim.com
"-J
(2) ... any person making an extension of credit to any person, who shall
willfully and knowingly charge, take, or receive interest thereon at a rate
exceeding 25 percent per annum but not in excess of 45 percent per annum, or the
equivalent rate for a longer or shorter period of time, whether directly or
indirectly, or conspires so to do, shall be guilty of a misdemeanor of the second
degree, punishable as provided in s. 775.082 or s. 775.083.
(3) ... any person making an extension of credit to any person, who shall
willfully and knowingly charge, take, or receive interest thereon at a rate
exceeding 45 percent per annum or the equivalent rate for a longer or shorter
period of time, whether directly or indirectly, or conspires so to do, shall be guilty
of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083,
or s. 775.084.
assignment taken from MERS, NMI and any other assignors, violated F.S. §687.071(2)
credit transaction an annual percentage rate exceeding 25 percent per annum but not in
by and through the voluntary assignment taken from MERS, NMI and any other
with the above described consumer credit transaction an annual percentage rate
credit made in violation of any of the provisions of this section shall be an enforceable
28
The Arda Law Firm, P.L., 3350 S. W 148- Avenue, Suite / /0, Miramar, fL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
www.Arcial.awilrm.cam
"-/ \..J
The Homeowners hereby demand trial by jury as to all issues so triable thereof.
jurisdiction of this case; order damages against DEUTSCHE BANK, equal to double the
alleged interest wrongfully charged to the Homeowners and paid to DEUTSCHE BANK
in connection with the subject transaction; Forfeiture of all interest owing DEUTSCHE
BANK on both of the above described consumer credit transactions; refuse to enforce
any debt that may be owed to DEUTSCHE BANK; prejudgment and post judgment
interest on all sums awarded, costs interest and attorneys fees under the consumer credit
transaction documents, and or F.S. §57.105, and such other relief as this Court deems just
and proper.
COUNT XI - ACCOUNTING
wit,
assignment taken from MERS, NMI and any other assignors failed to comply with the
conditions and terms of the mortgage and note and/or 12 U.S.C. §2601, et seq (RESPA),
with respect to the proper computation, collection and application of the mortgage
payments and the escrow accounts and payments in connection with the subject
transaction.
29
The Arda Law Firm, PL., 3350 S. W 148" Avenue, Suite no, Miramar, FL 33027
Telephone 800-170-7102 - Facsimile 954-433-8389
www.ArdaLawFirm.com
\..-I \....J
voluntary assignment taken from MERS, NMI and any other assignors collected
payments, but failed to properly credited the Homeowners' account, and or collected
I
mortgage payments and/or escrow payments and did not properly credit or post the
or through its assignors or servicer during the term of the subject mortgage transaction
that DEUTSCHE BANK, either directly or through its assignors or servicer did not
DEUTSCHE BANK, either directly or through its assignors have collected from the
Homeowners and paid out on the Homeowners' account for the term of the subject
mortgage transaction, and all the moneys collected by DEUTSCHE BANK, either
directly or through its assignors or servicer under the mortgage and notes and all the
moneys DEUTSCHE BANK, either directly or through its assignors paid out on the
either directly or through its assignors collected and or paid out on The Homeowners'
30
The IIrda Law Firm, PL, 3350 S. W 14S·lIvenue, Suite 110, Miramar, FL 33027
Telephone SOO-770-7102 - Facsimile 954-433-8389
www.llrdaLawFirm.com
DEMAND FOR JURY TRIAL
The Homeowners hereby demand trial by jury as to all issues so triable thereof.
jurisdiction of this case; order an accounting under the mortgage and note, restore and/or
return any and all overpayments made by the Homeowners and or improperly paid out by
statutory damages and actual damages in an amount to be established at trial for the
initial disclosure errors, interest, and award costs and reasonable attorney fees as
provided by 15 U.S.C.1640(a)(3), Fla. Ch.§57, the mortgage and note, and such other
wit,
102. At all times material hereto, the mortgage transaction at issue herein was
governed by the Florida Fair Lending Act Fla. Stat. §494.0078 - §494.00797 and subject
31
The Arcia Law Firm, PL, 3350 S. W 148' Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
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<:>
other assignors, violated the limitations for covered transactions under Fla. Stat.
110. The Homeowners have the continuing right to rescind the subject
Stat. §494.00793 and or Fla. Stat. §494.00792(1)(c) is liable to the Homeowners for the
following:
A. Dismissal of the complaint for failure to follow the required conditions precedent
MERS, NMI and their assignee, DEUTSCHE BANK in connection with each
E. Forfeit the entire interest charged, and only the principal sum of such home loan
33
The Arda Law firm, P.L., 3350 S. W. 148& Avenue, Suite 110, Miramar, FL 33027
Telephone 800·770-7102 - Facsimile 954-433·8389
www.Artial.awiirm.com
"--./ <::
through its assignors, was subject to the Florida Fair Lending Act under Fla. Stat.
§494.0079.
consumer credit transaction with DEUTSCHE BANK, either directly or through its
assignors in which the extended consumer credit transaction was subject to a finance
charge and was initially payable to DEUTSCHE BANK, either directly or through its
assignors.
106. DEUTSCHE BANK attached a copy of the promissory note similar to the
note evidencing the transaction to its Complaint that the Homeowners incorporate herein
by reference.
either directly or through its assignors, retained a security interest in the Homeowners'
November 30, 2006 mortgage is attached to the Complaint and incorporated herein by
reference. The above described property is used as the principal dwelling of the
Homeowners and was so at the time of the loan and all modifications thereto.
108. The subject credit transaction was subject to the limitations as set forth in
directly or by and through the voluntary assignment taken from MERS, NMI and any
32
The Arcia Law Firm, PL, 3350 S. W. 148" Avenue, Suite I 10, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile954-433-8389
www.ArciaLawFirm.com
DEMAND FOR JURY TRIAL
The Homeowners hereby demand trial by jury as to all issues so triable thereof.
WHEREFORE, the Homeowners pray this Court take jurisdiction of this case;
rescind the transaction of November 30, 2006, order DEUTSCHE BANK take all action
necessary to terminate any of its security interest in the Homeowners' property created
under the transaction, that the Court declare all such security interests void, including but
not limited to the mortgage related to the transaction of November 30, 2006 order the
return to the Homeowners of any money or property given by the Homeowners to anyone
in connection with the transaction; enjoin DEUTSCHE BANK during this action and
the property or from otherwise taking steps to defraud the Homeowners of ownership of
that property; forfeiture of the entire interest charged; award actual damages in an amount
rescission amount, and award costs and attorney fees as provided by the mortgage and
note and Fla. Stat. §57.1 OS, and such other relief as this Court deems just and proper.
Respectfully submitted,
BY:, \ "/
(lFI" ¥III\. :;;;> "
34
The Arcia Law firm. PL. 3350 S. W 148" Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
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.r~ ~ .
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via
facsimile and U.S. Mail to Jared Bannan, Esq., Kahane & Associates, P.A., 8201 Peters
35
The !lrda Law Firm, PL, 3350 S. W 148"!lvenue, Suite 110, Miramar, fL 33021
Telephone 800-770-7102 - Facsimile 954-433-8389
www.Arclal.awiirm.com