Amended Answer and Affirmative Defenses – Foreclosure

IN THE CIRCUIT COURT OF THE
20TH JUDICIAL CIRCUIT IN AND
FOR COLLIER COUNTY, FLORIDA

DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE FOR MORGAN CASE NO: 07-xxxx-CA
STANLEY ABS CAPITAL I, INC., TRUST
2006-HE6, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-HE6,
Plaintiff,
vs.
D.O.
et. al.,
Defendant.
__________________________________/

DEFENDANTS’, D.O., AMENDED ANSWER AND AFFIRMATIVE DEFENSES

The Defendants, De.O and Do.O, by and through undersigned counsel, file this Amended Answer and Affirmative defenses against the Plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITALI, INC., TRUST 2006-HE6, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-HE6, and state as follows:
1. Defendants, De.O and Do.O admits the jurisdictional allegations in the complaint.
2. Defendants, De.O and Do.O denies the substantive allegations of the complaint including, but not limited to, paragraphs 2, 3, 4, 5, 7, 8, 9, 11, and 12.

AFFIRMATIVE DEFENSES

The Defendants, De.O and Do.O, assert the following affirmative defenses to Plaintiff’s claim:

1. Plaintiff intentionally failed to act in good faith or to deal fairly with Defendants by failing to follow the applicable standards of residential single family mortgage lending and servicing as described in these Affirmative Defenses thereby denying Defendants access to the residential mortgage lending and servicing protocols applicable to the subject note and mortgage.
2. Plaintiff failed to provide Notice of Default and Notice of Acceleration as required by and/or that complies with Paragraph 22 of the subject mortgage and Paragraph 7 of the subject note.
3. Defendants hereby claim and reserve any right or interest it may have in or to any surplus proceeds that may result from the Plaintiff’s foreclosure of the subject property.
4. Plaintiff was not the owner/holder of the note and mortgage at the time the lawsuit initiated and it has no standing to bring this action.
5. Defendants assert that 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 intentional failure to comply with material terms of the mortgage and note. 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 would render acceleration unconscionable. This court should refuse the acceleration and deny foreclosure because Plaintiff has waived the right to acceleration or is stopped from doing so because of misleading conduct.
6. Defendants claims Plaintiff’s non-compliance with the conditions precedent to foreclosure imposed on the plaintiff pursuant to applicable pooling and servicing agreement.

WHEREFORE, Defendants, De.O and Do.O, respectfully request that this Court take jurisdiction of the case, dismiss the Plaintiff’s complaint with prejudice, decline to enforce the notice pled, award costs and reasonable attorney’s fees to the Defendants and grant such further relief as this court deems just and proper.

CERTIFICATE OF SERVICE

IT IS HEREBY CERTIFIED that on October 14, 2011, a true and correct copy of the foregoing was faxed [813-221-9171], and mailed to Ryan Weeks, Esq., Albertelli Law, P.O. Box 23028, Tampa, FL 33623, and faxed [239-261-3659], and mailed Ashley D. Lupo, Esq., Roetzel & Andress, LPA, 850 Park Shore Dr., Fl 3, Naples, FL 34103.

SACKRIN & TOLCHINSKY
Attorney for Defendants
2100 East Hallandale Beach Blvd./Suite 200
Hallandale Beach, FL 33009
Telephone: (954) 455-0800
Facsimile: (954) 455-9649
alan@hallandalelaw.com
By__________________________________________
ALAN D. SACKRIN, ESQ. Florida Bar No. 349070
LARRY TOLCHINSKY, ESQ. Florida Bar No 021997

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This is a sample document related to a specific set of facts and circumstances and should not be used or relied upon if any foreclosure, deficiency judgment, short sale or any other real estate matter. We recommend and urge you to consult with an experienced lawyer for professional advice as each case is unique.