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DEFENDANTS, , ANSWER,

AFFIRMATIVE DEFENSES; COUNTERCLAIMS AND DEMAND FOR JURY TRIAL

COME NOW, the Defendants, , by and through the undersigned


attorney, and for their answer, affirmative defenses, counterclaims and demand
for jury trial, state:

ANSWER

1. Denied, the subject note is not a negotiable instrument and is not


subject to re-establishment under F.S. 673.3091. Defendant seeks dismissal of
this lost note count for failure to state a cause of action upon which relief can be
granted.
2. Admit.
3. Denied.
4. Denied.
5. Denied.
6. Denied.
7. Denied.
8. Denied.
9. Denied.
10. Admit for jurisdictional purposes only.
11. Denied.
12. Denied.
13. Admit.
14. Denied.
15. Denied.
16. Denied.
17. Without sufficient knowledge to admit or deny, and therefore denied.
18. Without sufficient knowledge to admit or deny, and therefore denied.
19. Without sufficient knowledge to admit or deny, and therefore denied.
20. Without sufficient knowledge to admit or deny, and therefore denied.
21. Without sufficient knowledge to admit or deny, and therefore denied.
22. Denied.
23. Denied.

AFFIRMATIVE DEFENSES

1. ILLEGAL CHARGES ADDED TO BALANCE: Plaintiff has charged


and/or collected payments from Defendant for attorney fees, legal fees,
foreclosure costs, late fees, property inspection fees, title search expenses, filing
fees, broker price opinions, appraisal fees, and other charges and advances, and
predatory lending fees that that are not authorized by or in conformity with the
terms of the subject note and mortgage. 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.

2. FAILURE OF CONTRACTUAL CONDITION PRECEDENT: INVALID,


INEFFECTIVE NOTICE OF DEFAULT: The right of the plaintiff to accelerate the
balance due on the subject promissory note pursuant to the terms of the
mortgage is optional and under these circumstances, Florida law requires the
plaintiff send a notice of default and intent to accelerate before any acceleration
of the subject debt is effective. Plaintiff failed to provide Defendant with a Notice
of Default and Intent to Accelerate that complies with applicable law or meets the
requirements of Paragraph 22 of the subject mortgage and the default and notice
sections of the promissory note. As a result, Defendant has been denied a good
faith opportunity pursuant to the mortgage and the servicing obligations of the
Plaintiff to avoid acceleration and this foreclosure.

3. NO HUD COUNSELING NOTICE: Plaintiff failed to comply with the


forbearance, mortgage modification and other foreclosure prevention loan

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servicing requirements imposed on Plaintiff pursuant to the National Housing Act,
12 U.S.C. 1701x(c)(5) which requires the Plaintiff to advise 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
and Plaintiffs non-compliance with the laws requirements is an actionable event
that affects the 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).

4. 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.

5. 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.

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6. FAILURE TO STATE A CAUSE OF ACTION: The Plaintiff is not the
real party in interest and is not authorized to bring this foreclosure claim.
a. In Florida, the prosecution of a foreclosure action is by the owner and
holder of the mortgage and the note. Your Construction Center, Inc. v. Gross,
316 So. 2d 596 (Fl. 4th DCA 1975).
b. Plaintiff alleges in its complaint that is it’s “the holder of the Mortgage
Note and Mortgage and /or is entitled to enforce the Mortgage Note and
Mortgage.” Yet Plaintiff, CHASE HOME FINANCE LLC., attached a purported
copy of a Mortgage and Note that states the lender and principal as J.P.Morgan
Chase Bank, N.A.
c. The plaintiff is not entitled to maintain this action in which it seeks to
foreclose on a note that the plaintiff does not own. Your Construction Center,
Inc. v. Gross, 316 So. 2d 596 (Fl. 4th DCA 1975)
d. A person other than the Plaintiff is the true owner of the claim sued
upon and the Plaintiff is not the real party in interest and is not authorized to bring
this action.
e. Rule 1.210(a) of the Florida Rules of Civil Procedure provides, in
pertinent part:
Every action may be prosecuted in the name of
the real party in interest, but a personal representative,
administrator, guardian, trustee of an express trust, a party
with whom or in whose name a contract has been made for
the benefit of another, or a party expressly authorized by
statute may sue in that person’s own name without joining
the party for whose benefit the action is brought...

The plaintiff in this action meets none of these criteria.


f. The party prosecuting the action must have a sufficient stake in the
outcome and that the party bringing the claim be recognized in the law as being a
real party in interest entitled to bring the claim. This entitlement to prosecute a

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claim in Florida courts rests exclusively in those persons granted by substantive
law, the power to enforce the claim. Kumar Corp. v Nopal Lines, Ltd, et al, 462
So. 2d 1178, (Fla. 3d DCA1985).

7. PLAINTIFF LACKS STANDING: The Plaintiff does not have standing


to bring this foreclosure claim. To demonstrate standing, the Plaintiff must show
that a case or controversy exists between plaintiff and defendant and that such a
case or controversy continues from the commencement through the existence of
the litigation. Ferreiro v. Philadelphia Indem. Ins. Co., 928 So. 2d 374, (Fla. 3d
DCA 2006). See also Wexler v. Lepore, 878 So. 2d 1276, (Fla. 4th DCA 2004).
Moreover, standing is not a defect that can be cured after the inception of a law
suit and the filing of the complaint because in actions at law the right of the
plaintiff to recover must be measured by facts as they exist when the suit was
instituted. Progressive Express Ins. Co. v. McGrath Community Chiropractic,
913 So. 2d 1281, 1285 (Fla. 2d DCA 2005) (lack of standing is not a defect that
may be cured by the acquisition of standing after the case is filed). Progressive
Express Insurance held that the failure of a plaintiff to secure an assignment of
insurance benefits until after the Complaint was filed was fatal to the cause of
action, would not be saved by “relation back” principles, and that the only way to
proceed was to dismiss and bring a new law-suit. This was because, until the
assignment took place, the real party in interest was an entirely different entity.
Thus, on the date the Complaint was filed, plaintiff was not the party in interest
and lacked standing to bring suit. Id. at 1285-1286.

8. FAILURE TO COMPLY WITH APPLICABLE POOLING AND


SERVICING AGREEMENT:
a. Plaintiff is a trustee of a Security known as “CERTIFICATEHOLDERS
OF BEAR STEARNS ASSETS BACKED SECURITIES I LLC, ASSETS BACKED
CERTIFICATES, SERIES 2007-AC1 ” thus, the mortgage appears to be
“securitized.”

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b. Since (if) the mortgage and the promissory note at issue in the instant
case have become part of a securitized trust they are also governed by the terms
of the Trust’s Pooling and Servicing Agreement.
c. A Pooling and Servicing Agreement requires a mortgage shows an
“unbroken chain of assignments” evidencing transfer of title from the originator of
the loan to the trust. See e.g., Talcott Franklin & Thomas Nealon III, Mortgage
and Asset Backed Securities Litigation Handbook, § 5:105 – 5:118
d. Plaintiff failed to comply with applicable pooling and servicing
agreement loan servicing requirements: Plaintiff failed to provide 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 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.
e. 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: 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.
f. 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.
g. 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.

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h. 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.
i. 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.

9. FAILURE TO COMPLY WITH FLORIDA’S FAIR LENDING ACT:


a. Plaintiff’s note is a High-Cost Home Loan as defined by Fla. Stat. §
494.0079(7).
b. Plaintiff’s note is in violation of the Florida Fair Lending Act because it
Violates the following sections of the Florida Fair Lending Act, Fla. Stat. §
494.00791: (1) Prepayment penalties; (2) Default interest rate; (3) Balloon
payments; (4) Negative amortization; (6) Extending credit without regard to the
payment ability of the buyer; and (13) Late payment fees.
c. Plaintiff did not provide Defendant the 45-day pre-suit notice of the
Right to Reinstate, required by Fla. Stat. § 494.00794.

10. VIOLATION OF FLORIDA HOMESTEAD PROTECTION LAWS:

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a. The Defendant, , was married at the time this home was
purchased and the mortgage was signed.
b. The Defendant’s spouse did not sign the mortgage.
c. Florida Constitution, Article X SECTION 4, affords
Homestead; protection to this property and thus it is exempt from sale
or judgment.

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 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 .
6. Plaintiff’s non-compliance with the conditions precedent to foreclosure
imposed on the Plaintiff is an actionable event that makes the filing of this
foreclosure premature based on a failure of a contractual and/or equitable

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condition precedent to foreclosure which denies Plaintiff’s ability to carry out this
foreclosure.
7. 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.
8. Defendants have a right to receive foreclosure prevention loan
servicing from the Plaintiff before the commencement or initiation of this
foreclosure action.
9. Defendants are in doubt regarding their rights and status as borrowers
under the National Housing Act. Defendants are now subject to this foreclosure
action by reason of the above described illegal acts and omissions of the Plaintiff.
10. 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.
11. 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’s fees. Defendants
are having their credit slandered and negatively affected, all of which constitutes
irreparable harm to Defendants for the purpose of injunctive relief.
12. 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.
13. Defendants have a right to access the foreclosure prevention
servicing prescribed by the National Housing Act, which right is being denied to
them by the Plaintiff.
14. These acts were wrongful and predatory acts by the Plaintiff and
were intentional and deceptive.
15. There is a substantial likelihood that Defendants will prevail on the
merits of their counterclaims.

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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
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: FLORIDA CONSUMER COLLECTION PRACTICES ACT


Defendants reassert and reallege, as their Statement of Facts, paragraphs
2 through 15, inclusive as set out in Count I of these counterclaims.
16. 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).
17. Plaintiff has failed to comply with F.S. § 559.715, which states
that if consumer debt is assigned, the debtor must be given written notice of such
assignment within 30 days after the assignment. The Mortgage and/or
Promissory Note in this case was transferred / assigned and Plaintiff did not
provide Defendant(s) proper written notice of same.
18. 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.
19. 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.
20. These acts were wrongful and predatory acts by the plaintiff, and
were intentional and deceptive.

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21. 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.
22. These foreclosure prevention loan servicing obligations are imposed
on the Plaintiff pursuant to the National Housing Act, 12 U.S.C. Section 1710(a)
[Act].
23. 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.
24. 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.
25. 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.
26. 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.
27. As a result of the Plaintiff’s failure to properly service this mortgage
loan before filing this foreclosure action, Defendants have been damaged and
have had to retain counsel to bring this action on their behalf, and seek to
recover attorney’s fees from the Plaintiff pursuant to F.S. 559.77(2).

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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.

COUNT III: FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT


Defendants reassert and reallege, as their Statement of Facts, paragraphs
2 through 15, inclusive as set out in Count I of these counterclaims.
28. This is an action for injunctive and declaratory relief and for damages

pursuant to the Florida Deceptive and Unfair Trade Practices Act, Florida

Statutes §501.201, et seq. (hereinafter “the Act”).

29. At all times relevant hereto, Defendant was a “consumer” as defined

by §501.203 (7), Fla. Stat.

30. At all times relevant hereto, CHASE HOME FINANCE LLC.,


was engaged in “trade or commerce” as defined by §501.203 (8), Fla. Stat.
31. A violation of the Act may be based on “[a]ny law, statute, rule,
regulation, or ordinance which proscribes unfair methods of competition, or
unfair, deceptive, or unconscionable acts or practices.” See §501.203 (3)(c), Fla.
Stat.
32. The provisions of the Act are to be liberally construed to promote the
following policies:
(1) To simplify, clarify, and modernize the law governing consumer
protection, unfair methods of competition and unconscionable, deceptive, and
unfair trade practices.

(2) To protect the consuming public and legitimate business enterprises


from those who engage in unfair methods of competition, or unconscionable,
deceptive, or unfair acts or practices in the conduct of any trade or commerce.
§501.202(1) and (2), Fla. Stat.

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33. CHASE HOME FINANCE LLC.,has violated the Act by engaging in
unfair and deceptive acts and practices including, but not limited to, filing a
foreclosure action against Defendants without having legal standing to do so and
failing to provide Defendants with the pre-foreclosure loss mitigation
opportunities required by their mortgage contract and federal law as more
particularly stated in Paragraphs 2 through 15 above adding a layer of
foreclosure related fees and costs which should not have been incurred without
first providing Defendant with the pre-foreclosure options set out in the federal
laws referenced herein and required by the subject mortgage.
34. As a direct result of CHASE HOME FINANCE LLC’s.,
unfair and deceptive actions and practices, Defendant has been damaged.
Specifically, Defendant has been threatened with the loss of her homestead and
the equity therein because she was not given the opportunity to resolve the
default before foreclosure was instituted and an additional layer of foreclosure
fees and costs were added to the delinquency and reinstatement balance.
35. Pursuant to §768.72 (2002), Fla. Stat., Defendant reserves the right to

amend this complaint to add a prayer for punitive damages upon a showing by

evidence in the record providing a basis for recovery of such damages.

36. Defendant has been required to retain the services of the undersigned

counsel to pursue her claims against CHASE HOME FINANCE LLC. for

violations of the Act. Counsel will incur costs and attorney’s fees as a result of

the representation of Defendant.

WHEREFORE, Defendants request this Honorable Court enter a

judgment against CHASE HOME FINANCE LLC., pursuant to the Act as follows:

A. Declare CHASE HOME FINANCE LLC.’s practices to be in violation of

the Act as provided by the Act §501.211(1) Fla. Stat., and declare that CHASE

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HOME FINANCE LLC. must provide Defendant with access to the special

servicing provided in the applicable federal regulations;

B. Enjoin CHASE HOME FINANCE LLC. from engaging in deceptive and

unfair trade practices as provided by §501.211(1) Fla. Stat., and enjoin CHASE

HOME FINANCE LLC. from charging foreclosure fees and costs and from

commencing or pursuing this foreclosure until such servicing is provided;

C. Award Defendant actual damages as provided by §501.211(2) Fla.

Stat. ;

D. Award attorney’s fees and costs to Defendant’s counsel pursuant to

§501.2105 (1) Fla. Stat.; and

E. Grant such other and further relief, as this Court deems equitable.

DEMAND FOR TRIAL BY JURY


Defendants hereby demands trial by jury.

CERTIFICATE OF SERVICE

LOAN LAWYERS, LLC.


Attorneys for Defendant
377 North State Road 7, Suite #202
Plantation, FL 33317
Telephone: (954) 523-4357
Facsimile: (954) 581-2786

By:______________________________
MATIS H. ABRAVANEL, ESQ.
FBN 130435

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