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IN THE CIRCUIT COIIRT OF THE SIXTH JT]DICIAL CIRCUIT IN AND F',OR pItiELLAS COUNTY, FLORIDA CIYIL DIYISION DEUTSCHE BAI{K NATIONAL TRUST COMPANY, PLAINTIF'tr', cAsE NO. 11-38s-Cr-8 v NADINE HOUSTON, DEFENDANT. DEFEND.A,NT'S AMENDED ANSWER AJ\D A.F'F'IRMATIVT], DEF'ENSES TO PLAINTItr'F'S COMPL{NT Defendant NADINE HOUSTON (hereina.fter ,.Defendant,,), by and through t}le undersigned counsel, respectfully frles with this court Defendant's Amended Answer and Affirmative Defenses to PlaintifPs complaint, pursuant to Fla. R. civ. pro. 1.190, l.l lO(c), and 1.110(d) and precedent case law, and in support states as follows: 1. Admitted for jurisdiction purposes only. 2. Denied. 3. calls for a legal conclusion to which no response is required. without waiving said objection, without knowledge and therefore denied. 4' calls for a legal conclusion to which no response is required. without waiving said objection, without knowledge and therefore denied. 5 . Denied. Defendant specifically denies that Plaintiff is the "holder" of the subj ect note as it has alleged that the note has been lost, stolen, or destroyed. 6. Denied. 1

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Page 1: NH - Amended Answer

IN THE CIRCUIT COIIRT OF THE SIXTH JT]DICIAL CIRCUITIN AND F',OR pItiELLAS COUNTY, FLORIDA

CIYIL DIYISION

DEUTSCHE BAI{K NATIONAL TRUST COMPANY,

PLAINTIF'tr',

cAsE NO. 11-38s-Cr-8

v

NADINE HOUSTON,

DEFENDANT.

DEFEND.A,NT'S AMENDED ANSWER AJ\D A.F'F'IRMATIVT], DEF'ENSES TOPLAINTItr'F'S COMPL{NT

Defendant NADINE HOUSTON (hereina.fter ,.Defendant,,), by and through t}le

undersigned counsel, respectfully frles with this court Defendant's Amended Answer and

Affirmative Defenses to PlaintifPs complaint, pursuant to Fla. R. civ. pro. 1.190, l.l lO(c), and

1.110(d) and precedent case law, and in support states as follows:

1. Admitted for jurisdiction purposes only.

2. Denied.

3. calls for a legal conclusion to which no response is required. without waiving said

objection, without knowledge and therefore denied.

4' calls for a legal conclusion to which no response is required. without waiving said

objection, without knowledge and therefore denied.

5 . Denied. Defendant specifically denies that Plaintiff is the "holder" of the subj ect note

as it has alleged that the note has been lost, stolen, or destroyed.

6. Denied.

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7. Denied tlat Plaintiff has authority to accelerate the amounts allegedly owed under the

note and mortgage.

8. Denied. Defendant specifically denies that the named-plaintiff "retained" the law

firm which has filed this action as the actual party prosecuting this action is PlaintifPs

alleged "attomey-in-fact."

9.. Without knowledge and therefore denied.

i0. Admitted for jurisdiction purposes only.

1 1. Without knowledge and therefore denied.

12. Without knowledge and therefore denied.

13. Without knowledge and therefore denied.

14. Without knowledge and therefore denied.

15. Denied that Plaintiff has complied with Fla. Stat. 957.011 as it has failed to deposit

the requisite "cost bond" with the Court.

16. Calls for a legal conclusion to which no response is required. Without waiving said

objection, without knowledge and therefore denied.

17. Without knowledge and therefore denied.

18. Without knowledge and therefore denied.

19. Without knowledge and therefore denied.

20. Without knowledge and therefore denied.

21 . Without knowledge and therefore denied.

22. Without knowledge and therefore denied.

WTTEREFORE- based upon the foregoing, Defendant prays for judgnr.ent in her favor,

an award of attomey's fees and costs pursuant to Fla. Stat. $57.105(7) and the subject loan

2

Page 3: NH - Amended Answer

documents for those fees so wrongfuily incuned by the necessity of defense, and any otler relief

the Court deems just and proper.I

GENERAL ALI.,}EGATIONS

i. Defendant retained the Law Firm of Matthew D. weidner, p.A. to represent her in thisl

matter and is obligated to pay said law firm a reasohable fee for its services.

2. The subject mortgage obligates the borrowgr to pay the lender,s attomey,s fees and costs

ifthe lender is successfi;l in a foreclosure action.

3. The subject note obligates the borrower tq pay the lender's attomeys fees and costs for

enforcement of the note,

4. Because this action was wrongfirlly brought for the reasons stated herein, Plaintiff is

obligated to pay Defendant's attomey's fees and costs incuned in this action pursuant to the

mortgage, the note, and Fla. Stat. $57.105(7).

AFFIRMATryE DEFENSE I

Waiver

with regard to a]l counts in the complaint, plaintifrs chims are barred, in whole or in

part, under the doctrine of waiver. Specifically, plaintifps agent sAXoN MORTGAGE

(hereinafter Saxon) represented to Defendant that it would accept a reduced monthly mortgage

payments and not foreclose on the property. Saxon, acting on plaintiffs behalf, did in fact

accept reduced mortgage payments until october 1, 2010 when plaintiffls "new" agent, ocwEN

LOAN SERVICING, LLC (hereinafter "ocwen") refused to accept Defendant's monthly check

and required a higher payment amount thaa agreed upon in the modification with saxon.

Moreover, Saxon's acceptaace of a modified payment amount thereby relinquished plaintifps

right to foreclose. In sum, plaintiff exhibited the essential requirements of waiver: (1) the

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Morgan Mortg. Acquisition com., 51 so.3d 1176, ll79 (Fla. 2d DCA 2010) ("Because J.p.

Morgan did not own or possess the note and mortgage when it filed its lawsuit, it lacked standing

to maintain the foreclosure action.") ; Gonzalez v. Deutsche Bank National Trust Comoanv. 3t

Fla. L. weekly D950a (reversing summary judgment where foreclosing plaintiff '.failed to

establish its standing by showing that it possessed the note when it filed the lawsuit."). see also

Mclean v. JP Morpan Chase- 79 So. 3d 170, 174 (Fla.4thDCA2012) ("the plaintiffmust prove

that it had standing to foreclose when the complaint was frled."); Riebv v. Wells Fareo Bank.

N.A., 84 So. 3d 1195, 1196 (Fla. 4th DcA 2012) (reversing summary iudgment of foreclosure

because "[t]he Bank has not shown that it was holder of the note at the time the complaint was

filed."); Hall v. Reo Asset Acquisitions. LLC, 84 so. 3d 3gg (Fla. 4th DcA 2012) (reversing

summary judgment on the basis of Mcl-ean.); Jeff-Ray com. v. Jacobson, 566 So. 2d gg5, gs6

(Fla. 4th DCA 1990) (holding that a complaint to foreclose a mortgage failed to state a cause of

action when it was filed because the assignment of mortgage to the plaintiff was dated four

months after the lawsuit was filed.)

Here, by its own admission, plaintiff was not in possession of the original note and

mortgage at the inception of the action as it claims the note was lost, stolen, or destroyed.

Moreovet, Plaintiff has presented no admissible evidence that it had the right to enforce the note

and mortgage at the time it instituted this action. The purported ..assignment of mortgage,'

creates no interest in Plaintiff because the assignor, MERS, was not the party the note was made

out to or the party whom the note was transfered and negotiated to. Therefore, the ..assignment"

is a nullity because it merely assigns the mortgage without the underlying debt. See Sobel v.

Mutual Development. Inc., 313 So. zd77,7g (Fla. lst DcA 1975) (providing that.6A morrgage

is a mere incident of, and aacillary to, the note or other obligation secured thereby, and an

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assignment of the pledge of the mortgage without an assignment of the pledge of the note or

obligation secured thereby creates no right in the assignee or pledge.,,

Furthermore, the real party which has instituted and prosecuted this action is Ocwen.

ocwen, which purports to be Plaintifls "attomey-in-fact," is the alleged "servicer" of the debt.

"In securitization cases, a servicer may be considered a party in interest to commence legal

action as long as the trustee joins or ratifies its action." Elston/Leetsdale. LLC v. CWCaptial

Asset Manasement. LLC, 87 So. 3d 14, 17 (Fla.4th DCA 2012). ocwen, however, relies on

nothing more than its own allegations and affidavit to support its argument that it has standing to

sue on behalf of the trust. This, however, is insuffrcient evidence to prove that it is authorized to

sue on the trust's behalf. .lee Elston/Leetsdale, 87 so. 3d at 17-1g. Therefore, ocwen has failed

to properly plead it has standing to sue

Therefore, because Plaintiff did not own or possess the note at the inception of the action,

it lacks standing to sue and thus has failed to plead a cause of action for mortgage foreclosure.

AFF'IRMATIVE DEFENSE VI

Failure to Plead Real Partv in lnterest

with regard to all counts in the complaint, the plaintiffs claims are barred, in whole or

in part, because the party instituting this action is not the real party in interest. specifically, the

true party prosecuting this action is not the party named in the caption of tle complfit but

ocwen. ocwen, which purports to be plaintiffls "attomey-in-fact," is the alleged .,servicer,' of

the debt. "In securitization cases, a servicer may be considered a party in interest to co11lmence

legal action as long as the trustee joins or ratifies its action." Elston/Leetsdale. LLC v.

CWCaptial Asset Manaeement. LLC- 87 So. 3d 14, l7 (Fla.4th DCA 2012). Ocwen, however,

relies on nothing more than its own allegations and affidavit to support its argument that it has

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standing to sue on behalf of the kust. This, however, is insuffrcient evidence to prove that it is

authorized to sue on the trust's behalf. See Elston/Leetsdale, 87 So. 3d at 17-18. Therefore,

failed to exhibit that it is either the reai party in interest or one who is acting on that party's

behalf.

AX 'IRMATIVE DEX'ENSE VII

Negative Averment as to Condition Precedent and Failure to Give Notice and Abilitv to Cure

With regard to al1 counts in the Complaint, the Plaintiffs claims are baned in whole or in part

because of its failure to fulfill a condition precedent. Fla. R. Civ. Pro. 1.120(c). Specifically,

clause twenty-two (22) of the subject mortgage reads, in pertinent part, that

[Plaintiff] shall give notice to [Defendant] prior to acceleration followingBorrower's [alleged] breach of any covenant or agreement in this SecurityInstrument...The notice shall specifr: (a) the default; (b) the action required tocure the default; (c) a date, not less than 30 days from the date the notice is givento Borrower, by which the default must be cured; and (d) that failure to cure thedefault on or before the date specified in the notice may result in acceleration ofthe sums secured by this Security agreement, foreclosure by judicial proceedingand sale of the Property . The notice shall further inform [Defendantl of therieht to assert in the foreclosure nroceedins the non-existence of a default oranv other defense of [Defendantl to acceleration and foreclosure.

Bold emphasis added. The word "shall" in clause 22 created conditions to foreclosure which

Plaintiff must satisfii. Konsulian v. Busev Bank. N.A., 61 So. 3d 1293,1285 (Fla. 2d DCA

2011). Additionally, "[u]nder Florida law, contracts are construed in accordance with their plain

language, as bargained for by the parties." Id. Thus, the notice of default and opportunity to

cure must track the contractual language as written in the clause 22 of the mortgage. Plaintiff,

however, failed to properly give the requisite notice which tracks the language of clause 22 of

the mortgage. Because Plaintiff failed to comply with such this condition precedent to

foreclosure, its action must be dismissed. see Rashid v. Newberrv Federal Savinss and Loan

('Reshtsl-U"), 526 So. 2d 772 (Fla.3d DCA 1988) (dismissing foreclosure action for

8

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failure of mortgagee to give required notice of default to mortgagor pdor to the institution of the

foreclosure proceeding).

AF'FIRMATIVE DEF'ENSE VIII

Nesative Averment as to Authenticitv

With regard to all counts of the Complaint, the PlaintifF s claims are barred in whole or in

part because the Defendant affirmatively questions the veracity and authenticity of any possible

endorsement made on any purported note or allonge the Plaintiff may produce pursuant to Fla.

Stat. $673.3081 (2011), assuming, without conceding, tlnt such endorsement exists.

Specifically, the Defendant questions the veracity and authenticity of any possible endorsement

because: (1) there is no mention in the complaint as to who the endorser is; (2) there is no

mention in the complaint as to what authority the purported endorser may so endorse; (3) there

is no mention when the endorsement was effectuated; and (4) the endorsement contains two

parties which the note is payable to, with the second containing a hand wdtten notation at the end

of it.

AFF'IRMATI}'E DEFENSE IX

Non-neeotiabilifi of Subiect Note Prohibits Plaintiff from Enforcins it Pu$uant to Fla. Stat.

. 8673. et sea

With regard to all corurts of the Complaint, the Plaintiff s claims are barred in whole or in

part because the subject note that the Plaintiff may produce is not a negotiable instrument and

therefore the Plaintiff cannot claim enforcement ofthe note pursuaat to Fla. Stat. $673, et seq. ln

order for an instrument to be negotiable it must not, amongst other things, ,,state any other

undertaking or instruction by the person promising or ordering pa),ment to do any act in addition

to the palment of money." $673.10a1(1)(c). Indeed, as a prerequisite to any action on a noteo

determined bv the ch"!!a ljehts of the narties must be

9

aracter of the promissorv note. In

Page 8: NH - Amended Answer

this case, the promissory note meets the requirements of section 673.104, Florida Statutes (1991)

and is thus a negotiable instrument." American Bank of the South v. Rothenbers , 598 So.2d

289,291 (Fla. 5th DCA 1992). Bold emphasis added. Thus, the Rothenbers Court articulated a

crucial first step in the analysis of a mortgage promissory note: a decision of whether the

g@!g of the note at issue is that of a negotiable instrument.

Unfortunately, more recent appellate decisions have not mentioned this essential first

step, most likely because the character of the promissory note is not being questioned at the trial

court level. ,See e.g. Tavlor v. Deutsche Bank National Trust Company, 44 So. 3d 618,622 @la,

5th DcA 2010) (merely providing that "a promissory note is a negotiable instrument" without

any consideration as to how a promissory note is in fact negotiable); Riggs v. Aurora Loan

Services. LLC. 36 So.3d 932 ,933 @la. 4th DCA 2010) (providing that "[t]he note was a

negotiable instrument subject to the provisions of chapter 673, Florida statutes (200g)"); perry

v. Fairbanks, 888 So. 2d 725,727 (Fla. 5th DcA 2004) (stating that "[a] promissory note is

clearly a negotiable instrument within the definition of section 673.104I(l)" without providing

an analysis of the statute).

While there is no appellate case law in Florida (and precious little in the entire country)

which has ever interpreted this portion of the statute to mortgage promissory notes, the second

District has interpreted this section with respect to retail installment sales contracts in GMAC v

Honest Air Conditionins & Heatins- Inc.. et al.. 933 So. 2d 34 Qla.2dDCA 2006). There, the

court noted that the RISC created certain inshuctions or undertakings in both the ,.person

promising" to pay and the creditor ordering payment, including: (1) an instruction onto the

debtor to not remove the vehicle from the United States; (2) an instruction onto the debtor to

reimburse advances made by the creditor in payment of repair or storage bills; and (3) an

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instruction onto the creditor to dispose of the collateral in certain ways following repossession

Id. at 37. Most nodablg to our Durposes here. the Second District noted that the RISC

required the debtor to pav fees for late narment or dishonored checks. Id. ultimately, the

Second District held that these obligations "bring the RISC within the exclusionary language of

section 673.1041(1)(c), which provides that a negotiable instrument'does not state any other

undertakings' in addition to the payment of money." Id. The court reasoned that this must be so

because "[a] negotiable instrument should be 'simple, certain, unconditional, and subject to no

contingencies. As some writers have said, it must be a courier without luggage .,,, Id. (citing

Masonv. Flowers. 91FLa.224,107 So.334,335 (Fla. 1926)).

The subject note contains the following obiigations other than the payment of money

a. The instruction that each pal,rnent made will be applied first towards interest and

then towards principal in clause 3(A);

b. The instruction that each payrnent be made to P.O. Box 808911, Kansas City, MO

64184, ot at a dtfferent place if required by the lender in clause 3(A);

c. The instruction that the interest-rate "index" be tied to a figure reported by the

Wall Street Journa"l in clause 4(B);1

d. The instruction that the lender must send notice of any change in the interest rate

in clause 4(F);

e. The instruction that the bonower to tell the iender, in writing, if bonower opts to

may prepay in clause 5;

I This instruction also means that the note is no longer an 'hnconditional promise,,to pay. This is because the notewoxld te subject to and governed by the wall street Joumal, see Fla. stat. $673.10610), and the rights andobligations with respect to the note would likewise be govemed by the wful Street ioumal, see F'la. Stat.$673.1061(c).__See aho Holly Hills Acres. Ltd. v. Charter Bank of Gainesville ,3t4 So.2dZog,2l I (Fla. 2d DCA1975) (providing that "The note having incorporated th" t.r*r of th" p*chase money mortgage was notnegotiable... lbecause] [t]he note, incorporating by reference the terms of the mortgage,'did noi "contain theunconditional promise to pay.")

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f. The instruction that if a "law" is "finally interpreted" so that the interest or other

loan charges collected or to be cotlected in connection with the loan exceed

permitted limits then (1) any such loan charge will be reduced, and (2) any

amounts in excess of limit paid must be retumed to bonower in clause 6;

g. The instruction that the borrower pay a late charge if the lender has not received

palment by the end of fifteen calendar days after the date payment is due in

clause 7(A);

h. The instruction that the lender may send tle bonower notice of default in clause

7(c);

i. The instruction that the borrower must pay the lender's court costs and attomey's

fees in the event the lender incurs same during due to enforcement of the note

after default in clause 7(D);

j. The instruction that the lender send any notices that must be given to the borrower

pursuant to the terms of the subject note by either delivering it or mailing it by

frst class mail in clause 8;

k. The instruction that the borrower send any notices that must be given to the lender

pursuant to the terms of the subject note by eithff delivering it or maiiing it by

first class mail in clause 8; and

l. The instruction that if, within 36 months fiom the date the Security Instrument is

executed bonower makes a full prepayment or one or more partial prepayments,

and the total of all such prepayments in any l2-month period exceeds 20Yo of +Jte

original principal amount of the loan, bonower will pay a prepayment penalty

equal to 6 months' advance interest on the amount by which the total of her

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prepayments within any l2-month period exceeds 20% of the original principal

amount of the loan in the prepayment addendum.

Because the subject note contains undertakings or instructions other than the payment of

money, the subject note is not negotiable and therefore the Plaintiff cannot claim that it is

entitled to enforce same pursuant to Fla. Stat. $673, ef seq.

In addition to, or in altemative of, the following argument, even if the subject note is

deemed negotiable, Fla. stat. $673, et seq. (and therefore negotiation) cannot be utilized to

transfer the non-negotiable mortgage, which is a separate transaction. ,See in Sims v. New Falls

comoration, 37 so. 3d 358, 360 (Fla. 3d DCA 2010) (providing that a note and mortgage were

two separate transactions). The terms of the mortgage are expressly not incorporated into the

terms of the note; rather, they are merely referenced by the note. see clause 11 of the note.

Indeed, nowhere in the subject note is the right to foreclose the mortgage a remedy for default

nnder the note. It is clause 22 of the mortgage, on the other hand, which allows this. clawe 22

of the mortgage, however, cannot be tmnsfened to plaintiff by negotiation as the mortgage is not

negotiable since it contains a myriad of instructions and undertakings other than the pa;,rnent of

money. ,see e.g. clause 4 of the mortgage (requiring the borrower to pay all taxes, assessments,

charges, fines, and impositions and requiring the borrower to promptly discharge any lien which

has priority over the security instrument); clause 5 of the mortgage (requiring the borrower to

maintain property insurance and dictating explicit steps the lender might take to obtain insurance

coverage); clause 6 (requiring the borrower to occupy and use the subject property as the

bonower's principal residence within 60 days after execution of tre mortgage and requiring the

borrower to occupy the property for at least one year after the date of occupancy unless the

lender agrees otherwise in writing); clause 7 (permitting the lender or its ,.agents,, to make

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reasonable inspections onto the property and, if reasonable cause exists, permitting the lender to

inspect the interior ofthe property); and clause 9 (permitting the lender, amongst other things, to

break down the borrower's door and change the locks contained thereon if there is a default

under tle covenants and agreements of the mortgage).

To the extent Plaintiff argues that during a foreclosure action the note and mortgage

somehow "rnerge" into one document because the "mortgage follows the note", merging the

terms of the mortgage into the note destroys any negotiability the note might originally have.

see Holly Hill Acres Ltd. v. charter Bk. of Gainesville, 314 So. 2d209,zlr (Fla. 2d DCA 1975)

(holding that "[t]he note having incorporated the tems of the purchase money mortgage was not

negotiable.")

Finally, the note cannot be considered negotiable because even though the terms of the

mortgage are not expressly incorporated into the note, the note is stil1 subject to, and govemed

by, the mortgage. specifically, clause 25 of the mortgage provides that the bonower waives the

right to trial by jury arising out ofor in any way connected to either the mortgage or the note.

Because the note is therefore subject to and govemed by the term in this separate writing, it is

not an "unconditional" promise to pay and is therefore not a negotiable instrum ent. See Fla. Stat.

$673.1061@) and (c).

AFFIRMATTVE DET'ENSE X

Ulclean Handsffnconscionable Mortgage Foreclosure - Failure to Complv with l5 U.S.C.{1701(cX5)

with regard to all counts in the complain! the plaintiffs claims are barred, in whole or

in part, because the Plaintiff comes to court with unclean hands. Foreclosure of a mortgage is an

equitable remedy. See $wan Landine Develooment, LLC v. Florida Caoital Bank. N.A.. 19

so.3d 1068' 1072 (Fla.2d DCA 2009); Sinsleton v. crelmar Assocs.. gg2 so.2d 1004, 1008

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Page 13: NH - Amended Answer

(F1a.2004); Smiley v. Manufactured Hous. Assocs. III Ltd. p'ship , 679 so.2d 1229, 1232 (Fla.2d

DCA 1996). Moreover, because foreclosure is aa equitable remedy, ..[it] may be denied if the

holder of the note comes to the court with unclean hands or the foreclosure would be

unconscionable." Knisht Enerev services. lnc. v. Amoco oil co., 660 so.2d 7g6,7gg (Fla. 4th

DCA 1995). Plaintiff comes to this Court with unclean hands or, in the altemative, the mortgage

foreclosure claim is unconscionable, because plaintiff has failed to comply with 15 u.s.c.

$1701(c)(5) which requires, inter alia, that homeowners obligated under residential mofigages

be given notification of availability of homeownership counseling offered by the creditor within

45 days of a home loan payment default. Notwithstanding this federal initiative, plaintiff has

failed to allege that it has given Defendant the requisite notice.

In cross v. Federal National Mortease Association, 359 so. 2d 464, 465 (Fla. 4th DCA

1978), the Court stated ttrat while "HUD guidelines are not mandatory procedures constituting

conditions precedent to foreclosure... given the purpose of this federal Act and the

recommended efforts to obviate the necessity of foreclosure, any substantial deviation ftom the

recommended nomr might be considered by the trial court under the heading of an equitable

defense." Therefore, this court may consider a deviation of $1701(c)(5) under the guise of an

equitable defense.

AFF'IRMA'TTVE DEFENSE )ilI

Failure to Prooerlv Veri& Comolaint

With regard to all counts in the Complaint, the PlaintifP s claims are barred in whole or in

part because Plaintiff has failed to properly verify its complaint in accordance with Fla. R. civ.

P. 1.110(b). Specifically, the Frorida Supreme court amended Rure r.1r0(b) to requtue

verification of mortgage foreclosure actions so that plaintiffs would have incentive to investigate

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Page 14: NH - Amended Answer

who owns and holds the note and mortgage sued upon. This suggests that the Court required the

plaintiff itself, as opposed to some third-party, to veri8r the complaint. Here, the Complaint is

verified by a party other than the Plaintiff. It is also unclear how this third party may verifu

documents in.Plaintiffs name. Therefore, Plaintiffs action is subject to dismissal pursuant to

Rule 1.420@) for failure to comply with the Florida Rules of Civil procedure.

In addition to, or in altemative of, the foregoing, the complaint is not properly verified

because Plaintiff has failed to produce the written power of attomey which authorizes the verifier

to verify mortgage foreclosure complaints on Plaintiffs behalf. A power of attomey is defined

as a written authorization to an agent to perform some specified act or acts on behalf of his

principal. Am. Jur. 2d, Agency $23. The primary purpose of a power of attomey is not to define

the authority of the agent as between himself and his prinoipal, but to evidence the authority of

the agent to third parties with whom the agent deals. Id. It is imperative that a power of attomey

be in writing because "Powers of attomey are strictly construed. They will be held to gant only

those powers that are specified and will be closely examined in order to ascertain the intent of

the principal." Kotsch v. Kotsch, 608 so. 2d 879, 880 (Fla. 2d DCA 1992) (holding power of

attomey specifically $anting authority to son to provide for father's lifetime maintenance aad

care did not authorize son to tmnsfer father's assets into trust to protect tlem from father's wife)

(clrirg Falls at Naples. !td. v. Bamett Bank of Naples. N.A.. 603 so. 2d 100 (Fla. 2d DCA rg92)

(Altenbemd, J., concurring)) ; see Carrinston Place of St. Pete- LLC v. Estate of Milo ex rel.

Brito, 19 So. 3d 340, 341-42 (Fla.2d DCA 2009) (holding power of attorney granting agent

authority to manage principal's property interests did not confer on the agent power to enter into

arbitration agreements).

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Page 15: NH - Amended Answer

WHEREI'ORE, based upon the foregoing, Defendaat prays for judgment in her favor,

an award of attomey's fees and costs pursuant to Fla. stat. $57.105(7) and the subject loan

documents for those fees so wrongfirlly incuned by the necessity of defense, and any other relief

the Court deems just and proper.

DEMAND F'ORATTORNEY'S F'EES AND COSTS

Defendant hereby demands an award of attomey's fees ald costs, pursuant to Fla. Stat.

$57.105(7) and tbe subject loan documents, for those fees so wrongfully incuned by the

necessity of this defense.

MOTION TO STRIKE CLAIM FORDEB'ICIENCY OR, IN TIm ALTERNATIVE,DEMAI\ID FOR TRIAL BY JURY

Defendant motions this Court to strike PlaintifPs claim for a deficiency. PlaintifP s

action, by its own admission, is an in rem action for mortgage foreclosure. Mortgage foreclosure

is an equitable action over which the law side has no jurisdiction. See Fla. Stat. $702.01 (2011);

Adams v. Citizens Bank of Brevard. 248 So. 2d 682,684 (Fla. 4th DCA 1971). When a debtor

defaults on a debt secured by real property, a creditor has two remedies: (1) she may bring aa

action at law to recover on the promissory note or other written contract of the debt; or (2) she

may bring an equitable action to foreclose the property securing the debt. see U.S. v. Alvardo, 5

F.3d1425, 1428(1lthCir. 1993). Seealso55Am.Jur.Morrgagesg5at(1971);RichardR.

Powell, The Law of Real Property fl461 (1993) (noting that different limitation periods for "an

equitable action to foreclosure" and "a law action on debt"). Although Fla. stat. $702.06 permits

the entry of a deficiency decree in a foreclosure proceeding, it does not blur the line between law

and equrty; rather, it allows a creditor to pursue tlte two remedies simultaneously. See generally

Alvardo. 5 F. 3d at 1128-29. "Thus, in a foreclosure action, the creditor does not seek to recover

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money directly from the debtor; rather. he seeks onlv to satisfv the debt throush seizure and

sale of the propertv;' Id. Bold emphosis added.

Since Plaintiff has elected to only pursue a mortgage foreclosure action, it has

consequently elected to pursue the in rem remedy available to it and not the in personam remedy.

This Court therefore stands in equity and has no jurisdiction to adjudicate matters reserved for

the law side. As stated previously, $702.06 does not blur a cause of action for mortgage

foreclosure into a cause of action for breach of promissory note; rather, it allows a foreclosing

creditor to simultaneously prosecute both causes of action. This, however, requires a two-count

complaint: (1) one for mortgage foreclosure; and (2) one for breach of promissory note. Since

PlaintifPs pleading only prays for mortgage foreclosure, Plaintiff has relinquished its right to

pursue the two remedies simultaneously and therefore must file a new complaint alleging breach

ofpromissory note if it wishes to pursue any deficiency judgrnent it might claim it is entitled to.

In addition to, or in the alternative of, the foregoing, Defendant demands a trial by jury

on the issue ofdeficiency, and all other claims, defenses, and issues so triable, pursuant to Fla. R.

Civ. P. 1.430.

CERTIFICATE OF SERVICE

I HEREBLCERTIFY that a true and conect copy of the foregoing has been fumished byemail on this \O*'day of october, 2012 to Grant J,tisondo, Esq., ittorney for plaintffi [email protected]; and Bennett L. Rabin, Esq., Attomey for Defendant patriot sq.Condominium Association, at [email protected].

By.721,*.4J f O ->MICHAEL P. FUINO, Esq.Matthew D. Weidner, P.A.Attomey for Defendant1229 Central AvenueSt. Petersburg, FL 33705(727) 894-3159FBN: 84191

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