Affirmative Defenses

This is a collection of possible affirmative defenses. Some of the defenses may not apply to your case; therefore do not blindly cut and paste them into your pleading. Carefully analyze each to ensure that it fits your situation.  If you just received a foreclosure summon, do no rush to file an answer. You should ask for more time from the judge by filing a Motion To Enlarge Time. A Motion to Dismiss will also toll the time for filing an answer. Use that extra time to research your case. Learn as much as you can the foreclosure procedure in your local area.

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.

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
qualified.
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 oftrade 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.

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.

 

TILA 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.

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.

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.

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.

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.

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.

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.

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.

Promissory Note Not Authentic.
Defendant, pursuant to F.S 673.3081 challenges the authenticity of each signature on the Note introduced by the Plaintiff.