22 Affirmative Defenses To Stop Foreclosure
What is an affirmative defense?
In Criminal and Civil law, an Affirmative defense is a fact or set of facts that if proven by the defendant, nullifies or mitigates the legal consequences of the defendant’s otherwise unlawful conduct.
How can it help me stop foreclosure?
By using a combinations of the affirmative actions on this list at the right time, home owners can establish the foundation of a foreclosure defense case. An overall combination of cell crafted affirmative actions, quality evidence by means of forensic mortgage auditing, and comprehensive lawsuit with well targeted motions are a homeowners best defense against mortgage fraud.
1. Standing. The Plaintiff is not registered to do business in the State of Florida and therefore unable to maintain this action and the court does not have jurisdiction. See Fla. Stat. 607.1502(1) and 607.1501(a), (g) and (h).
The complaint fails to join indispensable parties, specifically the loan originator and the loan servicer(s) and the complaint fails to adequately show the chain of title demonstrating that Plaintiff is in fact the real party in interest with standing to bring this action.
2. Unclean Hands. Upon information and belief, Plaintiff and/or its predecessor(s) in interest had unclean hands in their course of dealing with Defendant because the several facts alleged herein below, and Plaintiff also wrongfully refused reinstatement.
3. Violation of TILA. Upon information and belief, Plaintiff and/or Plaintiff and/or its predecessor(s) in interest violated various provisions of the Truth in Lending Act (“TILA”), which is codified at 15 U.S.C. section 1601 et seq. and Regulation Z section 226 et seq. by interalia:
a) failing to deliver to the Defendant two copies of notice of the right to rescind (with all of the pertinent statutory disclosures)
b) failing to properly and accurately disclose the “amount financed”
c) failing to clearly and accurately disclose the “finance charge”
d) failing to clearly and accurately disclose the “total of payments”
e) failing to clearly and accurately disclose the “annual percentage rate”
f) failing to clearly and accurately disclose the number, amounts and timing of payments scheduled to repay the obligation
g) failing to clearly and accurately itemize the amount financed.
The transaction was subject to TILA and rescission rights since it was a consumer credit transaction involving a lien or security interest placed on the Defendant’s principal dwelling, and was not a residential mortgage as defined in 15 U.S.C. 1602(w), because the mortgage was not created to finance the acquisition of the dwelling. As a result, Defendant is entitled to rescind the transaction and elect to do so.
4. Violation of RESPA. Upon information and belief, Plaintiff and/or Plaintiff and/or its predecessor(s) in interest violated various provision of the Real Estate Settlement Procedure Act (“RESPA”), which is codified at 12 U.S.C. section 2601, et seq. by, interalia:
a) Failing to provide the Housing and Urban Development (HUD) special information booklet, a Mortgage Servicing Disclosure Statement and Good Faith Estimate of settlement/closing costs to Defendants at the time of the loan application or with three (3) days thereafter) Failing to provide Defendants with an annual Escrow Disclosure Statement for each of year of the mortgage since its inception;
c) Giving or accepting fees, kickbacks and/or other things of value in exchange for referrals of settlement service business, and splitting fees and receiving unearned fees for services not actually performed;
d) Charging a fee at the time of the loan closing for the preparation of truth-in-lending, uniform settlement and escrow account statements.
5. Violations of HOEPA. Upon information and belief, Plaintiff and/or its predecessor(s) in interest violated various provisions of the Home Ownership Equity Protection Act
(“HOEPA”) pursuant to 15 USC § 1639 et seq. by failing to make proper disclosures and
committing intentional predatory lending by including prohibited terms. These violations provide an extended three year right to rescission and enhanced monetary damages for the Defendants.
6. Extortionate Extension of Credit. Upon information and belief, Plaintiff and/or Plaintiff and/or its predecessor(s) in interest are guilty of an extortionate extension of credit pursuant to §687.071(1)(e), Florida Statutes, which defines it as “any extension of credit whereby it is the understanding of the creditor and the debtor at the time an extension of credit is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person.” In this case, Plaintiff and/or its predecessor(s) in interest are guilty of such an extension of credit because at the time of the loan, it was understood that Defendants’ failure to repay the loan could result in the use of criminal means by the Plaintiff to cause harm to Defendants’ or others’ persons, reputation or property, including trespass on Defendant’s property, perjury, mail and wire fraud, and Racketeer Influenced and Corrupt Organization (RICO) violations, as long as Plaintiff and/or its predecessor(s) in interest thought they would not be caught.
7. Fraud. Upon information and belief, the alleged Note and Mortgage and other loan documents, were induced by the fraud of the Plaintiff and its predecessors in interest and its co-conspirators, and are therefore void and unenforceable. Specifically, the originator of the loan and its co-conspirators made the following representations:
a) Before the loan was made, the originator and/or its co-conspirators (hereinafter referred to collectively as “Plaintiff and/or its predecessor(s) in interest”) represented to Defendants that they had superior knowledge, information, skill and ability to Defendants in making mortgage loans, and that they would be looking out for the best interests of Defendants in the financing process and, in effect, protecting and promoting Defendants’ benefit;
b) Before the loan was made, the Plaintiff and/or its predecessor(s) in interest
represented to Defendants that:
(1) Defendants would receive the best mortgage available
(2) that it would be a “good” loan, and
(3) it would be of substantial benefit to Defendants.
c) The representations described in a) and b) above were made for the purpose of inducing Defendants to enter into the loan transaction.
d) The representations were false and known by Plaintiff and/or its predecessor(s) in interest to be false at the time the representations were made and at the time the loan was made, in that:
e) The Plaintiff and/or its predecessor(s) in interest did not have superior knowledge, information, skill and ability to Defendants in making mortgage loans as represented or did not use the same for the benefit and best interest of Defendants;
f) The Plaintiff and/or its predecessor(s) in interest did not look out for Defendants’ best interest or protect and promote Defendants’ benefit;
g) Defendants did not receive the best loan available;
h) The loan was not a “good” loan;
i) The loan was not in Defendants’ best interest, but rather was in the best interest and to the benefit of the Plaintiff and/or its predecessor(s) in interest;
j) Defendants reasonably relied on the representations by the Plaintiff and/or its predecessor( s) in interest to their detriment.
k) The Plaintiff and/or its predecessor(s) in interest failed to disclose all costs, fees and expenses; charged excessive fees, gave kickbacks and made payments of fees to parties not entitled to receive them, and failed to provide Defendants with all disclosures required by law.
1) To confuse, bamboozle and defraud Defendants, the Plaintiff and/or its predecessor(s) in interest intentionally scheduled the closing with insufficient time at the closing for Defendants to have the time to actually read the documents requiring Defendants’ signature.
m) Plaintiff and/or its predecessor(s) in interest, with the intent to defraud, intentionally failed to provide the loan closing documents in advance of the closing.
n) The only parties who benefited from the loan were the Plaintiff and/or its
predecessor(s) in interest and their service providers.
8. Payment. Upon information and belief, Defendants have made all payments required by law under the circumstances; however Plaintiff and/or its predecessor(s) in interest improperly applied such payments resulting in the fiction that Defendants were in default. Defendants are entitled to a full accounting through the master transaction histories and general ledgers for the account since a dump or summary of said information cannot be relied upon to determine the rightful amounts owed.
Further, the principal balance claimed as owed is not owed and is the wrong amount; the loan has not been properly credited or amortized. Additionally, Plaintiff placed Forced Insurance on the property and is attempting to collect on property taxes, insurance and fees not owed.
9. Violation of Unfair and Deceptive Trade Practices Act. Upon information and belief, in addition to the facts alleged in the preceding paragraphs, the Plaintiff and/or Plaintiff and/or its predecessor(s) in interest also violated the Unfair and Deceptive Trade Practices Act, F.S. 501.201, et seq. by:
a) Failing to promptly and/or properly pay taxes or insurance premiums when due, so that the maximum tax discount available to Defendants could be obtained on Defendants’ property and so that insurance coverage on the property would not lapse.
b) Failing to provide Defendants with an annual statement of the escrow account kept for payment of taxes and insurance.
c) Failing to properly disclose at or prior to closing all costs, fees and expenses
associated with the loan;
d) Charging excessive fees and making payments of fees to parties not entitled to receive them;
e) Obtaining a yield spread premium (YSP) based upon the “selling” of a higher interest
rate, and/or non disclosure of the range of interest rates for which Defendants
f) All such actions by Plaintiff and/or its predecessor(s) in interest are unconscionable acts or practices, and/or unfair or deceptive acts or practices in the conduct of trade or commerce in violation of §501.204, Florida Statutes, and entitle the Defendants to a setoff, recoupment or civil penalty, nominal and actual damages, attorney’s fees and costs.
10. Unconscionability. In light of all of the foregoing foreclosure defenses, and on the face of the purported loan documents, the terms and circumstances of the Note and Mortgage were unconscionable when made and were unconscionably exercised, it is unconscionable to enforce the Mortgage by foreclosure.
11. Failure to Join Indispensable Party. Plaintiff has failed to join an indispensable party. Willey v. W. J. Hoggson Corporation, 90 Fla. 343, 106 So. 408 (1925), contends that since the note and mortgage involved in this litigation are payable to a business trust, any action on those instruments must be brought by all the members of the trust-not just the trustees.
12. Rescission. The mortgage and note which are the subject of this action have been rescinded and therefore the mortgage(s) and note(s) are void.
13. Unclean Hand. Plaintiff has unclean hands due to its actions described below and therefore is prohibited from obtaining equitable relief of foreclosure. As a matter of equity, this Court should refuse to foreclose this mortgage because acceleration of this note would be inequitable, unjust, and unconscionable. Plaintiff has waived the right to acceleration due to intentionally misleading and reckless conduct for which it is liable.
14. Lack of Jurisdiction. This court lacks jurisdiction over the subject matter. It appears on the face of the complaint that a person other than the Plaintiff was the true owner of the claim sued upon at the time this action was filed and that the Plaintiff is not the real party in interest and is not shown to be authorized to bring this foreclosure action.
15. Failure to Provide FDCPA Notice. Plaintiff brought this action without providing notice to Defendant of Defendant’s right to dispute the debt, pursuant to the Fair Debt Collection Practices Act. As indicated in the Notice attached to the Complaint, filed September 1, 2007, but not served upon Defendant until April 13, 2008. Plaintiff is required to notify Defendant, pursuant to 15 U.S.C §§ 1601, et seq., that Defendant may dispute the debt and Plaintiff is required to provide verisifcation fo the debt. Defendant hereby disputes the debt and demands that Plaintiff verify the debt in accordance with the Fair Debt Collection Practice Act. Plaintiff is required to suspend litigation until verification of the debt at issue.
a) Plaintiff alleges ownership of the note and mortgage in question.
b) Plaintiff is liable for actions of ABC Mortgage and/or its agents.
c) ABC Mortgage and/or its agent used unjustified pressure to make Mr. Doe sign the mortgage, including telling him that he would be liable for the closing costs if he did not go through with closing.
d) Mr. Doe was harmed by ABC Mortgage’s action.
17. Failure to State a Claim for Which Relief May Be Granted.
a) Plaintiff filed a claim to re-establish a lost note.
b) Plaintiff claims the right to re-establish such note under Fla. Stat. §673.3091.
c) Fla. Stat. §673.3091 provides only for re-establishment of negotiable instruments as defined under Fla. Stat. §673.1041.
d) The note at issue is not a negotiable instrument as defined under §673.1041 because it does not contain an unconditional promise to pay and/or other requirements to qualify as a negotiable instrument.
e) Therefore Fla. Stat. §673.1041 does not apply to transfer or enforce the promissory note at issue in this foreclosure action.
f) Therefore, Plaintiff has failed to state a claim for which relief may be granted.
18. Failure to Timely Serve Complaint.
a) Complaint was filed on February 13, 2008.
b) However, Defendant was served on July 3, 2008.
c) Pursuant to Fl. R. Civ. Pro. 1.070(j), Defendant is required to be served within 120 days after filing of the initial pleading.
d) Plaintiff served Defendant approximately 170 days after filing the initial pleading.
19. Fraud in the Inducement.
i. Plaintiff alleges ownership of the note and mortgage in question.
ii. Plaintiff is liable for actions of ABC Mortgage and/or its agents.
iii. ABC Mortgage and/or its agents made false statements and/or omissions regarding a material fact;
iv. ABC Mortgage and/or its agents knew or should have known the representation was false;
v. ABC Mortgage and/or its agents intended that the representation induce plaintiff to act on it;
vi. Mr. Doe suffered damages in justifiable reliance on the representation.
20. Quiet Title.
Plaintiffs request this Honorable Court to enter its judgment against Defendants declaring the Mortgage, null and void; canceling the Mortgage of record; quieting title to the property owned by Plaintiffs and against Defendants and all persons claiming under Defendants; and granting costs of this action and such other relief as the Court may deem proper.
21. No Written Notice Of Consumer Debt Assignment.
Pursuant to F.S 559.715 Plaintiff must give Defendant written notice of the debt assignment within 30 days after the assignment.
22. Promissory Note Not Authentic.
Defendant, pursuant to F.S 673.3081 challenges the authenticity of each signature on the Note introduced by the Plaintiff.
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