Affirmative Defenses and Counterclaims Checklist relating to a Mortgage Loan Foreclosure Proceeding

AFFIRMATIVE DEFENSES AND COUNTERCLAIMS CHECKLIST

AFFIRMATIVE DEFENSES

1. FIRST AFFIRMATIVE DEFENSEa) FAILURE TO STATE A CAUSE OF ACTION b) PLAINTIFF DOES NOT HAVE STANDING c) PLAINTIFF IS NOT THE REAL PARTY IN INTEREST d) FAILURE TO JOIN INDISPENSABLE PARTIES

1. The Complaint incorrectly alleges that the note and mortgage were initially executed in

favor of Deutsche Bank and that they were delivered to Deutsche Bank. In fact, as

shown by the copy of the note and mortgage attached to the Complaint, the note and

mortgage were in favor of Mortgage Lenders Network USA, Inc.

2. The note was endorsed in blank, not to Deutsch Bank.

3. The Complaint fails to establish that at the time of the filing of the Complaint the Plaintiff

was the holder and owner of the note by assignment or otherwise.

4. The Complaint does not set forth any facts which confirm that the Defendant’s note and

mortgage were submitted to and accepted by the Plaintiff as Trustee under the asset

backed security described as the Soundview home Loan Trust 2007-1 Asset Backed

Certificates, Series 2007-1 within the time frames required by the governing document,

ie. the Pooling and Servicing Agreement. In fact, the Complaint does not even attach

the Pooling and Servicing Agreement with attachments which is the contract governing

the relationship between the lenders, servicers and trustee, and outlines what duties and

responsibilities each party involved in the asset backed security has to the other.

5. Without the attachment of a properly executed and recorded assignment of note and

mortgage and without a copy of the Pooling and Servicing Agreement, proof of

acceptance of the loan into the pool, and copies of all of the various exhibits and sub-

agreements relating to the asset backed security, Plaintiff has failed to show that it has

standing to bring the action. Mere allegation that it is the holder of the note is not

sufficient.

6. Finally, the mortgage states that MERS holds legal title to the interests granted by

Defendant in the mortgage and that MERS has the right to foreclose. There is no

evidence that MERS has assigned its interest to Plaintiff and therefore Plaintiff is not

the proper party to bring the foreclosure suit.

2. SECOND AFFIRMATIVE DEFENSE

a) FAILURE OF CONTRACTUAL CONDITION PRECEDENT b) NO NOTICE OF DEFAULT OR ACCELERATION

3. THIRD AFFIRMATIVE DEFENSE

a) PLAINTIFF FAILED TO COMLY WITH APPLICABLE POOLING AND SERVICING AGREEMENT

b) PLAINTIFF FAILED TO COMPLY WITHLOAN SERVICING REQUIREMENTS

4. FOURTH AFFIRMATIVE DEFENSEa) FAILURE OF GOOD FAITH AND FAIR DEALING b) UNFAIR AND UNACCEPTABLE LOAN SERVICING

5. FIFTH AFFIRMATIVE DEFENSE

a) ILLEGAL CHARGES ADDED TO BALANCE

6. SIXTH AFFIRMATIVE DEFENSEa) UNCLEAN HANDS/ESTOPPEL

b) The doctrine of “unclean hands” requires that one that seeks equity must do equity,

therefore in order for the Plaintiff to use this court of equity to enforce its rights under

the mortgage it must have not engaged in deceptive or unfair treatment of the

Defendant.

c) In Defendant’s statement of facts, Defendant has laid out a plethora of facts which

show that the Plaintiff, who is subject to the defenses which the Defendant may assert

against the originator of the note since the Plaintiff is not a holder in due course, may

not use the court of equity to enforce a contract which is fraught with unfair and

deceptive practices and acts on the part of the mortgage lender and mortgage broker

from the inception of the loan through the denial of the short sale.

d) Not only did the original lender and mortgage broker have “unclean hands”, the

Plaintiff has unclean hands as a result of the fact that its servicer, Ocwen, verbally

approved of a short sale and then at the 11th hour revoked the approval without just

cause or explanation.

7. SEVENTH AFFIRMATIVE DEFENSEa) TILA VIOLATIONS

8. EIGHTH AFFIRMATIVE DEFENSEa) IMPROPER COLLECTION AND/ORCREDIT OF PAYMENTS

9. NINTH AFFIRMATIVE DEFENSE

a) ILLEGAL NOTE/MORTGAGE

10. TENTH AFFIRMATIVE DEFENSE

a) FAILURE TO COMPLY WITH Fla. Stat. 559.715

11. ELEVENTH AFFIRMATIVE DEFENSE

a) VIOLATION OF TILA ACT AND RESCESSION15 U.S.C., § 1601, et seq.

12. TWELFTH AFFIRMATIVE DEFENSE

a) LOST NOTE/SECURITY BOND

13. THIRTEENTH AFFIRMATIVE DEFENSE

a) FAILURE TO MITIGATE DAMAGES24 C.F.R. 203.605

14. FOURTEENTH AFFIRMATIVE DEFENSE

a) FAILURE TO HAVE A FACE TO FACE MEETING WITH DEFENDANT – 24 C.F.R. 203.605

15. FIFTEENTH AFFIRMATIVE DEFENSE

a) NEGLIGENT MISREPRESENTATION

16. SIXTEENTH AFFIRMATIVE DEFENSE

a) FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICE ACTFla. Stat. §501, Part II, et seq.

17. SEVENTEENTH AFFIRMATIVE DEFENSE

a) FLORIDA CONSUMER COLLECTIONS PRACTICE ACTFla. Stat. § 559, Part VI, et seq.

18. EIGHTEENTH AFFIRMATIVE DEFENSE

a) VIOLATION OF FEDERAL REAL ESTATE SETTLEMENTPROCEDURE ACT

Federal RESPA Act, 12 U.S.C. § 2601, et seq.

19. NINETEENTH AFFIRMATIVE DEFENSE

a) VIOLATION OF FLORIDA’S FAIR LENDING ACTFla. Stat. § 494, Part IV, et seq. ___ ___

20. TWENTIETH AFFIRMATIVE DEFENSE

a) CANCELLATION OF MORTGAGE – Fla. Stat. § 701.04 ___ ___

21. TWENTY FIRST AFFIRMATIVE DEFENSE ___ ___

a) FRAUD IN THE INDUCEMENT

22. TWENTY SECOND AFFIRMATIVE DEFENSE

a) PLAINTIFF IS NOT A HOLDER IN DUE COURSE ______

1. Must be an unconditional promise to pay;2. Must be for value/consideration;3. Must not be subject to defenses; and4. Must not be in default

7. Plaintiff is not a holder in due course as a result of the transfer or assignment of the note

and mortgage taking place after the note was in default and at a time when Plaintiff had

notice of the default.

8. As a result of the Plaintiff not being a holder in due course under the Florida Uniform

Commercial Code, Plaintiff is subject to any and all defenses that Defendant may have

had to the enforcement of the instruments or contract vis a vis the original lender as set

forth in this Defendant’s Amended Answer and Affirmative Defenses.

23. TWENTY THIRD AFFIRMATIVE DEFENSE

a) FRAUD IN ENDORSEMENT ___ ___

9. The endorsement in blank of a negotiable note by an employee having no authority to

sign or authorize endorsement for a corporation is wholly inoperative to establish status

of transferee as holder entitled to bring an action of foreclosure F.S.A. 674..01, 674.25,

674.31, and 674.33.

10. The note being foreclosed is endorsed in blank by Kimberly Barnes with the official title

of “closer.”

11. Without a corporate resolution authorizing someone other than a president or vice

president of a corporation to execute the endorsement on behalf of the corporation, the

endorsement is invalid and therefore the ineffective.

COUNTERCLAIMS

YES NO

1. COUNT ONEa) UCC ___ ___

2. COUNT TWOb) RESPA ___ ___

3. COUNT THREEc) TILA ___ ___

4. COUNT FOURd) HOEPA ___ ___

5. COUNT FIVE

e) ECOA ___ ___

6. COUNT SIXf) FDCPA ___ ___

7. COUNT SEVENg) FACTA ___ ___