Preview
Filing # 106218528 E-Filed 04/14/2020 12:23:30 PM
IN THE CIRCUIT COURT OF THE 9TH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CIVIL DIVISION
Wells Fargo Bank, N.A. as Trustee for
the MASTR Asset Backed Securities
Trust 2007-NCW Mortgage Pass-Through
Certificates Series 2007-NCW
Plaintiff
Case No. 2019-CA-0033 16-MF
VS.
UFUK ABDULLAH; SUSAN ABDULLAH;
ET AL,
Defendants
MOTION TO STRIKE AMENDED AFFIRMATIVE DEFENSES, OR IN THE
ALTERNATIVE, REPLY TO AFFIRMATIVE DEFENSES
Plaintiff, Wells Fargo Bank, N.A. as Trustee for the MASTR Asset Backed
Securities Trust 2007-NCW Mortgage Pass-Through Certificates Series 2007-NCW
(“Plaintiff”),who files its Motion to Strike the Amended Affirmative Defenses raised by Defendant,
UFUK ABDULLAH ANnb SUSAN ABDULLAH (“DEFENDANT”), or in the alternative, replies to
said defenses, and states:
1 DEFENDANT filed a responsive pleading which set forth affirmative defenses.
2 Pursuant to Rule 1.140(b), the grounds on which affirmative defenses are based
and the substantial matters of law intended to be argued “shall be stated specifically and with
particularity.”
3 As articulated by the Third District Court of Appeal:
«,.. the pleader must set forth the facts in such a manner as to
reasonably inform his adversary of what is proposed to be proven
in order to provide the latter with a fair opportunity to meet and
prepare his evidence. Zito v. Washington Federal Savings & Loan
Assoc. of Miami Beach, 318 So.2d 175, 176 (Fla. 3 DCA 1975).”
4. Affirmative defenses which are mere conclusions, not supported by any factual
allegations are properly stricken. Fuller, Inc. v. Johnsberg, 107 Fla. 330, 144 So. 653.
5 Affirmative defense should be stricken where they are unsupported and just a
conclusion, see, Chris Craft Industries Inc. vs Van Valkenberg 267 So . 2d 642 (Fla. 1972)
6. It is well settled that an affirmative defense is one that avoids the cause of action
by raising a bar to recovery and is the nature of a confession and avoidance. The defendant party
must admits the facts alleged by in support of the claim for the purpose of the argument, but argues
that there are other facts that establish a bar to the claim, FDIC vs. Brodie 602 2.d 1358 (3" DCA
1992).
7 A party does not raise an affirmative defense merely by asserting a legal argument
that would operate to limited the recovery. Nor does a party raise an affirmative defense by asserting
a matter that might have the effect of offsetting the amount of damages ID at 1362.
8 Affirmative defenses do not simply deny the fact of the opposing claim they raise
some new matter which defeats the otherwise valid claim, Tropical Exterminator Inc., vs. Murray
171 So 2d 432 (2™ DCA 1965).
9 Further it is proper for a court to strike an affirmative defense when the matter
raised denied the facts and did not raise any new matter to defeat the complaint Gatt vs, Keyes Corp.,
446 So 2d. 211 (3 DCA 1984).
10. Florida Rule of Civil Procedure 1.140(f) provides as follows:
A party may move to strike or the court may strike redundant,
immaterial impertinent or scandalous matter(s) from any pleading
at any time.
I. Each of Defendant's affirmative defenses, as plead, are insufficient as a matter of
Page 2 of 13
law for one or more the following reasons: (a) it does not constitute a valid, legally recognized
affirmative defense; (b) it lacks the specificity required by Rule 1.140(b); (c) it is so vague that
Defendant cannot reasonably frame a response; and/or, (d) it is a mere conclusion, not supported by
any specific allegations of facts.
12. Specifically Defendant pled ten (10) amended affirmative defenses as follows:
FIRST DEFENSE - Standing
13. Defendant predicates his first argument on an alleged lack of standing, despite
the fact that Plaintiff attached copies of the Mortgage, Note (which contains a blank
endorsement), Loan Modifications, and Assignments of Mortgage to its Complaint. Thus, a
“prima facie case” for standing has been made. See Lizio vs. McCullom 35 Florida Law Weekly
D1292 (4" DCA June 9, 2010). Copies of the same are attached hereto as Exhibit, “A.”
14, As stated supra, the subject Note contains a blank endorsement, thus evidencing
Plaintiff's standing in this action. This issue has been decided under Riggs v. Aurora Loan
Services LLC , 36 So 2d 932 (DCA 4" 2010) which held as follows:
“Aurora's possession of the original note, indorsed in blank, was sufficient
under Florida's Uniform Commercial Code to establish that it was the lawful
holder of the note, entitled to enforce its terms. The note was a negotiable
instrument subject to the provisions of Chapter 673, Florida Statutes (2008). An
indorsement requires a “signature.” § 673.2041(1), Fla. Stat. (2008). As an agent
of First Magnus, Alday’s hand printed signature was an effective signature
under the Code. See §§ 673.4011(2)(b), 673.4021, Fla. Stat. (2008). The
indorsement in this case was not a “special indorsement,” because it did not
“jdentif[y] a person to whom” it made the note payable. § 673.2051(1), Fla. Stat.
(2008). Because it was not a special indorsement, the indorsement was a “blank
indorsement,” which made the note “payable to bearer” and allowed the note
to be “negotiated by transfer of possession alone.” § 673.2051(2), Fla. Stat.
(2008). The negotiation of the note by its transfer of possession with a blank
indorsement made Aurora Loan the “holder” of the note entitled to enforce it.
§§ 673.2011(1), 673.3011(1), Fla. Stat. (2008).”
Page 3 of 13
15. Further, and as stated supra, Plaintiff provided a Note Certification
contemporaneously with its response, thus evidencing Plaintiff's physical possession of the loan
documents prior to the inception of this action. A copy of the same is attached hereto as
Exhibit, “B.”
16. A copy of Plaintiff's Bailee letter shows that the original promissory was sent by
Plaintiff's loan servicer and then received by Counsel for Plaintiff on September 11, 2019. The
Bailee Letter clearly demonstrates that the original loan documents were in the possession of
Plaintiff prior to October 16, 2019, which was the date the complaint was filed in the above
captioned action. A copy of the redacted Bailee letter and docket are attached hereto as part of
Exhibit “C.”
17. This issue has been litigated numerous times, and was recently decided yet again
in the Fourth District Court of Appeals. Indeed, the Court in JPMorgan Chase Bank National
Assoc. v. Pierre, 2017 WL 1278071 (Fla. 4" DCA 2017) recently held:
Importantly, a holder is entitled to enforce a note even if it “is not the owner of the
instrument or is in wrongful possession of the instrument.” § 673.3011, Fla. Stat.
(2013).
Here, JPMorgan attached a copy of the Note bearing a blank indorsement to its
complaint and presented the original Note, which was identical to the copy attached
to its complaint, at trial. In doing so, JPMorgan established that it had possession of
the Note indorsed in blank at the time it filed suit and, therefore, established that it
had standing as holder of the Note. Becker, 42 Fla. L. Weekly at D344, —— So.3d at
——~. The fact that another entity may have been the owner of the Note has no
bearing on JPMorgan's status as holder. § 673.3011, Fla. Stat. (2013). See also Tilus
vy. AS Michai LLC, 161 So.3d 1284, 1286 (Fla. 4th DCA 2015) (“[U]nder the
Uniform Commercial Code, a plaintiff is not required to be both the owner and
holder of the note in order to have standing to foreclose”).
Page 4 of 13
18. Finally in paragraph 26 Defendant assert Fraud as basis for the denial of standing, this
paragraph is legally and factually insufficient as Rules 1.120(b) Fla. R. Civ. P. provides:
“In all averments of fraud or mistake, the circumstances constituting fraud or
mistake shall be stated with such particularity as the circumstances may permit.
Malice, intent, knowledge, mental attitude, and other condition of mind of a person
may be averred generally.”
19. “Where a litigant seeks to inject the issue of fraud into a lawsuit, Florida
law requires that it be pled with precision, not just flung into the case willy-nilly.”); Flemenbaum
vy. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994). Here, Defendant’s defense is patently
insufficient, and should be struck as a matter of law. As such, the Court should strike this
defense.
SECOND DEFENSE - Failure to State a Cause of Action
20. Florida Statute §90.952 provides: “Except as otherwise provided by statute, an
original writing, recording, or photograph is required in order to prove the contents of the
writing, recording, or photograph (emphasis applied).”
21. As provided by statute, Rule 1.510(c) Fla. R. Civ. P. (In regards to summary
judgment) states:
“The motion shall state with particularity the grounds upon which it is based and
the substantial matters of law to be argued and shall specifically identify any
affidavits, answers to interrogatories, admissions, depositions, and other materials
as would be admissible in evidence (“summary judgment evidence”) on which the
movant relies. The movant shall serve the motion at least 20 days before the
time fixed for the hearing, and shall also serve at that time a copy of any
ummary judgment evidence on which the movant relies that has not already
been filed with the court (Emphasis Applied).”
22. Further, promissory notes qualify as summary judgment evidence, as referenced
by Rule 1.510(c) Fla. R. Civ. P. See Verizzo v, Bank of New York, 28 So.3d 976 (Fla. 2d DCA
Page 5 of 13
2010). Accordingly, Plaintiff is under no obligation to file the original loan documents at this
time, and the Court should strike this defense.
THIRD DEFENSE - Failure to mitigate Los:
23. This defense merely presents a legal conclusion devoid of any factual
nexus to Plaintiff's alleged acts. The specificity required for pleading defenses is the same as
that required to plead claims. Certainty is required when pleading defenses, and pleading
conclusions of law unsupported by allegations of ultimate fact is legally insufficient. Cady v.
Chevy Chase Sav. & Loan, 528 So.2d 136, 138 (Fla. 4th DCA 1988). See also Bliss v. Carmona,
418 So.2d 1017, 1019 (Fla. 3d DCA 1982).
24. Further, Rule 1.130 of the Florida Rules of Civil Procedure states: “All bonds,
notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or
defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall
be incorporated in or attached to the pleadings.” Defendant’s failure to attach any
documentation to support this defense precludes its from possessing any merit. As such, the
Court should strike this defense.
FOURTH DEFENSE - Breach of Contract
25. The elements of a breach of contract action are: (1) a valid contract; (2) a
material breach; and (3) damages. Although Plaintiff does not deny the existence of a valid
contract, Defendant fails to allege the existence of the other two elements necessary to support
this cause of action.
26. Specifically, to constitute a vital or “material breach,” the nonperformance must
go to the essence of the contract. Covelli Family, L.P. v. ABGS, L.L.C., 977 So.2d 749, 752
Page 6 of 13
(Fla. 4" DCA 2008). Here, the essence of the contract was the financing for the purchase of real
property, and not to file the original loan documents with the Court. Accordingly, the Court
should strike this defense.
FIFTH DEFENSE - Conditions Precedent
27. When pleading Affirmative Defenses, Florida Rule of Civil Procedure 1.110(f)
requires that the contents of a defense, as far as possible, be limited to a single set of
circumstances. This Affirmative Defense, by its sole paragraphs pleads two alternative and
distinct sets of circumstances. First, that Plaintiffs predecessor in interest failed to comply with
conditions precedent, and alternatively, that Plaintiff's failed to properly verify its’ Complaint.
This fact alone merits the striking of this defense. If, however, the Court requires additional
argument Plaintiff responds as follows.
28. Plaintiff moves to strike the same, in that Plaintiff pled in Paragraphs 12 and 130f
its Complaint as follows:
“On October 14, 2018, Defendant(s) was sent a Notice of Default / Right to Cure /
Notice of Intent to Accelerate letter which informed the Defendant(s) that they were
in default under the terms of the Note and Mortgage. A copy of this letter is attached
hereto as Exhibit "E". All conditions precedent to the acceleration of this mortgage
note and to foreclosure of the mortgage have been fulfilled and have occurred.”
Plaintiff attached to its Complaint, and referenced the same by incorporation under Florida Rules
of Civil Procedure, Exhibit “E.” A copy of said Exhibit is attached hereto as Exhibit “D.”
A copy of the acceleration letter was provided via U.S. Mail (which is consistent with the
terms and conditions of the mortgage) sent to defendant at his/her last known address advising
that effective October 14, 2018, that the mortgage was in arrears and giving thirty-five (35) days
to come into compliance per paragraph 22 of the mortgage. Defendant has not alleged that she
Page 7 of 13
tendered or attempted to tender said sums. Plaintiff filed its Complaint on October 16, 2019,
well in excess of the thirty-three days’ mailing notice that Defendant contends he/she is entitled
to.
29. Additionally, Paragraph twenty-two of the subject mortgage provides:
“Lender shall give notice to Borrower prior to acceleration following
Borrower’s breach of any covenant or agreement in this Security Instrument
(but not prior to acceleration under Section 18 unless Applicable law provides
otherwise). The notice shall specify: (a) the default; (b) the action required to
cure the default; (c) a date, not less than 30 days from the date the notice is
given to the Borrower, by which default must be cured; and (d) that failure to
cure the default on or before the date specified in the notice may result in
acceleration of the sums secured by this Security Instrument, foreclosure by
judicial proceedings and sale of the Property. The notice shall further inform
Borrower of the right to reinstate after acceleration and the right to assert in the
foreclosure proceedings the non-existence of a default or any other defense of
Borrower to acceleration and foreclosure”
A copy of the subject Mortgage is attached hereto as Exhibit, “A.”
30. In conformity with the aforementioned covenant, Plaintiff's Notice stated that (1)
default occurred due to a failure to make the June 1, 2018, payment and each one thereafter; (2)
that $13,170.98 was needed to cure the default; (3) that defendant had thirty-three (33) days to
cure the default; (4) that failure to pay the total amount due may result in foreclosure and sale; (5)
that the right to reinstate exists; (6) and that the borrower has the right to assert defenses. Again,
a copy of said Notice is attached hereto as Exhibit, “A.”
31. Further, Florida law now illustrates that a Defendant must show actual prejudice
to properly defend an action based upon insufficiency of notice. In Gorel v. Bank of New York
Mellon, the Fifth District Court of Appeals held:
“Bank's default letter set a cure date twenty-nine days later, not thirty or more as
required. We agree with Bank that the defective notice did not prejudice Mr.
Page 8 of 13
Gorel, as he made no attempt to cure the default. Absent some prejudice, the
breach of a condition precedent does not constitute a defense to the enforcement
of an otherwise valid contract.”
165 So.3d 44, 47 (Fla. 5" DCA 2015).
32. The Fifth District further fortified this holding in Vasilevskiy v. Wachovia Bank,
when it held:
“Although Appellee breached the contractual provision that required a full thirty
days’ notice, we conclude that the breach of contract was not material. The
purpose of the notice provision is to allow the mortgagor to cure the default prior
to acceleration. The shortage of two days was insignificant under the facts of this
case. See Gorel v. Bank of New York, Mellon, 165 So.3d 44, 47 (Fla. 5th DCA
2015) (citing Allstate Floridian Ins. Co. v. Farmer, 104 So0.3d 1242, 1248-49 (Fla.
5th DCA 2012) (breach of condition precedent must be material, meaning one
causing prejudice, *193 to constitute defense to enforcement of contract)).”
171 So.3d 192, 193 (Fla. 5" DCA 2015).
33. Next, Defendant claims that Plaintiff failed to verify its’ Complaint correctly,
despite making any further argument to support this notion. Thus, Plaintiff is simply left to guess
at the argument Defendant intends to make.
34. Assuming Defendant intends to argue that Plaintiffs servicer cannot execute the
subject verification, the Second District Court of Appeals recently held that verification by a loan
servicer complied with Rule 1.110(b) Fla. R. Civ. P.
35. In Deutsche Bank National Trust Co. v. Prevratil, Deutsche Bank sought
certiorari review of an Order granting a Motion to Dismiss which was based on a servicer’s
execution of the requisite verification on its’ Complaint for foreclosure. 2013 WL 845285 (Fla.
2d DCA 2013). Specifically, the Court held that the trial court departed from essential
requirements of law, by requiring verification of mortgagee's foreclosure complaint by mortgagee
Page 9 of 13
rather than by mortgagee's loan servicer, where mortgagee had executed power of attorney
naming loan servicer as attorney in fact for mortgagee, and power of attorney predated filing of
complaint. Id.
36. Here, as in Prevratil, the Plaintiff executed a Power of Attorney to its Loan
Servicer prior to the inception of this action. A copy of the same is attached hereto as Exhibit,
“ER” Accordingly, the Court should strike this defense.
SIXTH DEFENSE - Setoff
37. This defense merely presents a legal conclusion devoid of any factual nexus to
Plaintiff's alleged acts. The specificity required for pleading defenses is the same as that
required to plead claims. Certainty is required when pleading defenses, and pleading conclusions
of law unsupported by allegations of ultimate fact is legally insufficient. Cady v. Chevy Chas
Sav. & Loan, 528 So.2d 136, 138 (Fla. 4th DCA 1988). See also Bliss v. Carmona, 418 So.2d
1017, 1019 (Fla. 3d DCA 1982).
38. Finally, Rule 1.130 of the Florida Rules of Civil Procedure states: “All bonds,
notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or
defense made, or a copy thereof or a copy of the portions. Defendant’s failure to attach any
documentation to support this defense precludes it from possessing any merit. As such, this
defense is legally insufficient and should be struck as a matter of law.
SEVENTH DEFENSE - Failure to Comply with Federal Law
39. This defense merely presents a legal conclusion devoid of any factual nexus to
Plaintiff's alleged acts. The specificity required for pleading defenses is the same as that
required to plead claims. Certainty is required when pleading defenses, and pleading conclusions
Page 10 of 13
of law unsupported by allegations of ultimate fact is legally insufficient. Cady v. Chevy Chase
Sav, & Loan, $28 So.2d 136, 138 (Fla. 4th DCA 1988). See also Bliss v_ Carmona, 418 So.2d
1017, 1019 (Fla. 3d DCA 1982).
40. Finally, Rule 1.130 of the Florida Rules of Civil Procedure states: “All bonds,
notes, bills of exchange, contracts, accounts, or documents upon which action may be brought er
defense made, or a copy thereof or a copy of the portions. Defendant's failure to attach any
documentation to support this defense precludes it from possessing any merit.
41. Finally, Defendant already received one modification of the subject loan, and
nothing that Defendant cites to amortgagee to provide a second one. As such, this defense is
legally insufficient and should be struck as a matter of law.
EIGHTH DEFENSE - Incapacity to Sue
42. Rule 1.120 Fla. R. Civ. P. states: “It is not necessary to aver the capacity of a
party to sue or be sued, the authority of a party to sue or be sued in a representative capacity, or
the legal existence of an organized association of persons that is made a party, ecept to the
extent required to show the jurisdiction of the court.” Plaintiff, however, shows the Court’s
jurisdiction in Paragraphs two (2) and eight (8) of its Complaint, thus complying with the Florida
Rules of Civil Procedure. As such, this defense should be struck.
NINTH DEFENSE - Promissory Estoppel
43. Defendant fails to acknowledge the existence of paragraph twelve (12) of the
subject Mortgage, which neuters this defense totally. Indeed, the aforementioned paragraph
states:
Page 11 of 13
12. Borrower Not Released: Forbearance By Leader Not a Waiver. Extension of the tim
payment or modifi oF amertigation the su s secured by this Securit: Stra nf granted by Len
to Borrower or an: sor i Infere: Boris ee | not operate tor liability of Borrower
or any Successors Interest of Borrower. Lender shal! not be required to con proceedings a, st
any Suc Orin Interest of Borrower or to reflise to extend 0 ne for p mem of otherwise modify
amet Hien of the sums secured by th Security Instrarsent by 2 n of any made by the or inst
Borrower or any Successors in Interest of Bor: Ww Any forbearance oy Lendee in exerci ng any Lor
remedy including, without ation, Lender's pianee of payments from third p AS,iS, oF
Successors in Interest of Borrower or in amount: 8 than the amount then due, te. A not be a waiver of or
areclude the exercise of any right or remedy.
Again. a copy of the subject Mortgage is attached hereto as Exhibit, “A.” As such, the Court
should strike this defense
VENTH DEF Attorney Fees
44 itis well settled that an affirmative defense is one that avoids the cause of action
by raising a bar to recovery and is the nature of a confession and avoidance he defendant party
must admits the facts alleged by in support of the claim for the purpose of the argument, but
argues that there are other facts that establish a bar to the claim. EDIC vs, Brodie 602 2.d 1358
3" DCA 1992), Here, this proposed defense fails to present a viable defense and it should be
struck accordingly
WHE EFORE, Plaintiff requests that this Court enter an Order striking Defendant's
Affirmative Defenses and such other relief the Court deems just and proper
LAw OF £ OF GARY G SSEL, PLA.
2191 Ringling Boulevard
Sarasot lorida 34237
Prim; email: Pleadin: ia law.com
Secondary email: EFiling@ Gassellaw.com
(941) 952 9322
F » (941) 365+ 0997
Attornes-for Paintitl
By: inn
GARY * ST quire
Florida B 10690
Page 12 of |
CERTIFICATE OF SERVICE
THE 3Y CERTIFY that a true and correet copy of the foregoing has been duly
furnished by C irst Class Mail and/or Eservice to:
Ufuk Abdullah & Susan Abdullah Penant I/Unknown Tenant n/k/a Mia
C/O Ronald M. Hand, Esq. Abdullah,
122 S. Rose Avenue 4454 Mildred Bass Road
K nmee, FL 34741 Saint Cloud, PL 34772
mmh@rhandpa.com
’
J
this ~~ day of April, 2020
GA YG
Page 13 of 13
i
—————
“4 Abaiis
MIN:
1490759
218
ADJUSTABLE RATE BALLOON NOTE
2 Year Rate Lock
(LIBOR Six-Month Index (As Published In The Walt Street Jaurnal)- Rate Caps)
THIS NOTE CONTAINS PROVISIONS ALLOWING FOR CHANGES IN MY INTEREST RATE AND MY
MONTHLY PAYMENT. THIS NOTE LIMITS THE AMOUNT MY INTEREST RATE CAN CHANGE AT ANY ONE
TIME AND THE MAXIMUM RATE I MUST PAY.
THIS LOAN IS PAYABLE IN FULL _AT MATURITY. YOU MUST REPAY THE ENTIRE PRINCIPAL
BALAN! F THE LOAN AND UNPAI D_INTEREST TI DUE NDER AS UNDER NO ON TO
REFINANCE T! AN AT THAT TIME. YOU WILL, THEREFORE, BE REQUIRED TO MAKE PAYMENT
UT OF OTHER ASSETS THA’ ‘T YOU MAY OWN, OR YOU WILL HAVE TO FIND A LENDER, WHICH MAY
FE THE LENDER YOU HAV! THIS LOAN WITH, WILLING TO LEND YOU THE MONEY IF _YC
REFINANCE THIS LOAN AT MATURITY, YOU AY HAVE TO PAY SOME OR ALL OF THE CLOSIN
COSTS NORMALLY ASSOCIATED WITHA NEW LOAN EVEN IF YOU OBTAIN REFINANCING FROM Ti
SAME LENDER.
January 30, 2007 T CLOUD Florida
{Datel ieity] [Sante
4454 MILDRED BASS RD, SAINT CLOUD, FL 34772
(Property Address}
1, BORROWER'S PROMISE TO PAY
In return for a loan that [have received, | promise to pay U.S. $ 468,000.00 (this amount is called
Principal"), plus interest, to the order of Lender. Lender is New Century Mortgage Corporation
Twill make all payments under this Note in the form of cash, check or mon y order
unt ind that Lender may nsfer this Note. Lender or anyone who es this Note by transfer and who ts entitled to
receive payments under this Note is called the "Note Holder."
2. INTEREST
Interest will be charged on unpaid principal until the full amount of Principal has been paid. | will pay interest at a yearly
rate of 8.250%, The interest rate | will pay may change in accordance with Secuon 4 of th ole.
The interest rate required by this Section 2 and Scction 4 of this Note is the rate | will pay both bet after any detault
described in Section 7(B) of this Note
3. PAYMENTS
{A) Time and Place of Payments
f will pay principal and interest by making a payment every month.
Twill make my monthly ments on the first day of each month beginning on March 1, 2007
My monthly payments will be on an as: ed 40 ove nor ation period (the “Amortization Pi
will make these payments every month unti have paid all of thepi nd interest and any other charges escribed
below that 1 may owe under this Note. Each monthly payment will be ‘applied as of its scheduled due date and will be
applied to interest before Princiy py Y2ANI/2037 ~ [still owe amounts under this Note, | will pay those
amounts in full on that date, which i: ‘alled the "Maturity Date.”
1} will make my monthly payments at 18400 Von Karman, Suite 1000, Irvine, CA 92612
or ata different place if required by Note Holder,
(B) Amount of My Initial Monthly Payments
ach of my initial monthly payments will be in the amount of U.S. $3,342.17 This amount may change
(C) Monthly Payment Changes
Changes in my monthly payment will reflect changes in the unpaid principal of my loan and in the interest that |
must pay. The lote Holder will determine my new interest rate and the changed amount of my monthly nent in
accordance with Section 4 of thir More ;
NCMC
Adjustable Rate Bai Aad
RE-SI9 (011806) oo
’
AAS EREST RATE AND MONTHLY PAYMENT CHANGES
(A) Change Dates
The interest rate | will pay may change on the first day of February, 2009 . and on that day every 6th month thereafter.
Each date on which my interest rate could change is called a "Change Date."
(B) The index
Beginning with the first Change Date, my interest rate wll be bassd on an Index. The “Indes” is the average of interbank
fered rates for six month U.S. dollar-denominated deposits in the Loudon market ("LIBOR"), as published in The Walt
Street Journal. The most recent Index figure available as of the first business day of the month immediately preceding the
month in which the Change Date occurs is called the "Current Index.”
If the Index is no longer available. the Note Holder will choosea new index that is based upon comparable information.
The Note Holder will give me notice of this choice.
(C) Calculation of Changes
Before each Change Date. the Note Holder will calculate my new interest rate by adding Six And Five Hundredth({s)
percentage points (6.050 a) to the Current Ind The Note Holder will then round the result of tis addition to
the nearest one-eighth of one percentage point (0. 12: . Subjeet to the limits stated in ction 4(D) below. this rounded
amount will be my new interest rate until the next Change Date.
The Note Holder will then detenvine the amount of monthly payment that would be sufficient to ay the unpaid
principal that | am expected to owe on the Change Date in full over the remaining Amortization Period at my new interest
rate in substantially equal payments. The result of this calculation will be the new amount of my monthly payment
Notwithstanding the Amortization Period applicable to this Note, the entire unpaid principal amount wall be fully du nd
payable on the Matunty Date.
(D) Limits on Interest Rate Changes
The interest rate | am required to pay at the first Change Date will not be greater than 10.250% or tess than 8.250.
Thereafter. my interest rate will never be inerea ed or decreased on an ingle Change Date by more than One And
One-half percentage point(s) (1.500 %) from the rate of interest | have been paymg for the preceding 6 months. My
interest nate will never be greater than 15.250 %.
(E) Effective Date of Changes
My new interest rate will become effective on each Change Date. | will pay the amount of my new monthly payment
on the first monthly payment date after the Change Date until the amount of my monthly payment changes aya,
beginning
(F) Netice of Changes
The Note Holder will deliver or mail to me a notice of an changes in my interest rate and the amount of my monthly
payment before the effective dute of hange. The notice will include formation required by law tw be given to me and
also the title and telephone number of a person who will unswer any question | may have regarding the notice:
5. BORROWER'S RIGHT TO PREPAY
Thave the right to make payments of Principal at any time before they are due, A payment of Principal only is known as a
“Prepayment.” When 1 make a Prepayment. | will tell the Note Holder in writing that Lam doing so. | may not designate a
payment as a Prepayment if [ have not made all the monthly payments duc under this Note.
I may make a full Prepayment or partial Prepayments without paying any Prepayment charge. The Note Holder will use
my Prepayments to reduce the amount of Principal that | owe under this Note, However. the Note Holder may apply: my
Prepayment to the accrued and unpaid interest on the Prepayment amount before applying my Prepayment to reduce the
Principal amount of this Note. If | make a partial Prepayment, there will be no changs in the due dates of my monthly
payments unless the Note Holder agre in writing to those changes. My partial Prepayment may reduce the amount of my
monthly payments after the first Change Date following my partial Prepayment. Hows ver. any reduction due to my partial
Prepayment may be offset by an interest rate increase.
6. LOAN CHARGES
If a law, which applies to this loan id which sets maximum loan charges, is finally mterpreted so that the interest or
other loan charges collected or to be collected in connection with this loan execed the permitted limits. then: (3) such
loan charge shall be reduced by the amount ne ry to reduce the charg: ¢ to the permitted limit, and (b) any sum alre:
collected from me that exceeded permitted limits will be refunded to me. The Note Holder may choose to make th refund
by reducing the Principal {| owe under this Note or by making a direct payment to me. If a refund reduces Principal. the
reduction will be treated as a partial Prepayment.
NCM
Adj sable Rate Balloon Note (FLY Page 2 of 4
-$19 (011806) Mate Us
en
1s
.
. |ORROWER'S FAILURE TO PAY AS REQUIRED
(A) Late Charges for Overdue Payments
If the Note Holder has not received the full amount of any monthly payment by the end of €ifteen
calendar days after the date it is duc, I will pay a late charge to the Note Holder. The amount of the ch ge Will be
5.000 % of my overdue payrsent of principal and interest, | will pay this late charge promptly but
only once on cach late payment.
(B) Default
If | do not pay the full amount of cach monthly payment on the date itis due. | will be in default.
(C) Notice of Default
If | am in default, the Note Holder may send me a written notice telling me that if | do not pay the overdue amount by
a certain date, the Note Holder may require me to pay immediately the full amount of Principal that has not heen paid and
all the interest that | owe on that amount. That date must be at least 30 days after the date on which the notice is mailed to
me or delivered by other means.
{D) No Waiver By Note Holder
Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in full as deseribed
above, the Note Holder will still have the right to do so if [ am in default at a later time.
{E) Payment of Note Holder's Costs and Expenses
If the Note Holder has required me to pay immediat in full as described above. the Note Holder will have the right
to be paid back by me for all of its costs and expenses in cnforcing this Note to the extent not prohibited by appheable law
Those expenses include, for example, reasonable attorneys’ fees.
8. GIVING OF NOTICES
Unless applicable law requires a different method, any notice that must be given to me under this Note will be given by
delivering it or by mailing it by first class mail to me at the Property Address above or at a different address if | give the
Note Holder a notice of my different address.
Unless the Note Holder requires a different method. any notice that must be given to the Note Holder under this Note
will be given by mailing it by rst c mail to the Note Holder at the addr: stated in Section 3¢A) above or at a different
address if| am given a notice of that different address.
9, OBLIGATIONS OF PERSONS UNDER THIS NOTE
If more than one person signs his Note, gach person is fully and personally obligated to keep all of the promise: made
in this Note, including the promise to pay the full amount owed, Any person who is a guarantor, surety or endorser of thir
Note is also obligated to do these things. Any person who takes over these obligations. including the obligations of a
guarantor, surety or endorser of this Note, also obligated to keep all of the promises made in this Note. The Note Holder
nay enforce its rights under this Note ag ch person individually or against all of us together, This means that any one
of us may be required to pay all of the amounts owed under this Note.
10, WAIVERS
(and any other person who has obligations under this Note w ¢ the rights of Presentment and Notice of Dishonor,
“Presentment” means the right to require the Note Holder to demand payment of amounts due. "Notice of Dishonor” means
the right to require the Note Holder to give notice to other persons that amounts due have not been paid.
11. UNIFORM SECURED NOTE
This Note is a uniform instrument with limited variations in some jurisdictions. In addition to the protections given to
the Note Holder under this Note, a Mortgage. Deed of Trust. or Security Deed (the “Security Instrument"), dated the same
date as this Note, protects the Note Holder trom possible losses that migt resul€ if Ldo not keep the pronttses that | make in
this Note, That Security Instrument describes how and under what conditions | may be required to make immediate payment
in full of all amounts [ owe under this Note. Some of those conditions read as follows:
1
NCMC
Vv
Adjustabbe
el Fibslioon Note (FL) Page
3 of +
RE-519 (011896)
vs
5 Transfer of the Property or a Beneficial Interest in Borrower. As used in this Section 1%,
interest in the
Property" means any legal or beneficial mterest in the Property. gz. but not limited to. those beneticial
inclu:
interests transferred in a bond for deed. contract for deed, installment les contract or escrow agreement, the
intent of which is the transfer of title by Borrower at a future date to a purchaser.
If all of any part of the Property or any Interest in the Property is sold or transferred (or if Borrower Is nota
natural person and a beneficial interest in Borrower is sold or transferred) without Lender's prior written consent
Lender may require immediate payment in full of all sum: secured by this Security Instrument, However. ds
option shall not be exercised by Lender if such exercise is prohibited by Applicable Lender also shall not
exercise this option if; (a) Borrower causes to be submitted to Lender information required by Lender to evaluate
the intended transferee as if a new loan were being made to the transferee; and (>) Lender reasonubl. determines
that Lender's security will not be impaired by the loan assumption and that the risk of a breach of any covenant or
agreement in t Security Instrument i: ceptable to Lender.
To the extent permitted by Applicable Law, Lender may charge a reasonable fee as a condition to Lender's
consent to the loan assumption, Lender also may’ require the transterce to sign n assumption agreement that is
acceptable to Lender and that obligates the tran ee to keep all the promises and agreements made in the Note
and in this Security Instrame Borrower will continue to be obligated under the Note and this Security
Instrument unless Lender rele Borrower in writing.
If Lender exercises the option to require immediate payment in full, Lender ¢ Borrower neti of
acceleration. The hotice shall provide a period of not tess than 30 days from the date the notice ts given in
accordance with S: n within which Borrower must pay all sums sceured by this S uri Instrument.
Borrower fails to pay these sums prior to the expiration of this period, Lender may nyoke any remedies permitted
by this Security Instrument without further notice or demand on Borrower.
i 12. DOCUMENTARY TAX
i
The state documentary tax due on this Note has been paid on the mortgage securing (hts mdebtedness,
: WITNESS THE HAND(S) AND SEAL(S) OF THE UNDERSIGNED
\ - ACC, (Seal)
Borrower Borowe
(Seal)
UFUK ABDULLAII
aoe a (Seal) (Seal)
Borrower “Be: meer
(Seal) as I)
Harrewer Herrewes
-- (Seal) (Seal)
Borrower -Borower
{Sign Original Onty]
NCMC
AdiustsbRBRMGHBatoon Note UL) Page
d of &
RF-S19 (01 1806)
a
on
‘a
Pay to the order of.witnout recourse
ee
New Cei a tg) ‘orporation
“StevéNas 3
VP Records Managemen
| TA ETHAN
96233 Ps 101
bare 208002982 oe ane
an
sce
DING 10,00
‘Recording Requered By: eine HANES 1,00
Bank
of America
Prepared By: Dlans DeAvila
‘When recorded mail to:
450 E. Boundary St.
Attn; Release Dept.
4454 Mildred
Bass Red
Saint: FL 34772-8084
2m ot Ror
100K
ASSIGNMENT OFMORTGAGE
For Value Received, the undersignedhel ‘of a Morigage: ‘whose address is 1901 E Voorhees
Stent Sus Dang ratte dey rty Ma pn cance coney ate WELLSEARGO BANK,
NA., AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF MASTR ASSET-BACKED SECURI
TRUST 2007-NCW, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-.NCW whose
‘OLD ANNAPOLIS RD, COLUMBIA, MD 2104S aif beneficial imerest under that certain Mortgage described
below together with the note(s} and therein described and the money due end to bevome due thereon
nterest and all rights acerued or to accrue under sald Monigage.
Original Lender: NEW CENTURY MORTGAGE CORPORATION
Original Borrower(s): UFUK ABDULAH AND SUSAN ABDULLAH, HUSBAND AND WIFE
Dete of Mortgage: 13072007
Original
Loan Amount:
Recorded
in Oseeole County,F
L on: 3/1/2007, bock 03421, page 0909 and instrument number 2067042182
SN. WITNESS WHEREOF, the undersigned has caused this Assigameatof Mortgage to be exeruledon
wok
ELECTRONICKae
REGISTRATION SYSTEMS, INC.
——
win
Ste of California
‘County of Ventura
on FEB OT
tone
yt %
ac
on be Base of sptisfactory evide
Preview
Filing # 106218528 E-Filed 04/14/2020 12:23:30 PM IN THE CIRCUIT COURT OF THE 9TH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CIVIL DIVISION Wells Fargo Bank, N.A. as Trustee for the MASTR Asset Backed Securities Trust 2007-NCW Mortgage Pass-Through Certificates Series 2007-NCW Plaintiff Case No. 2019-CA-0033 16-MF VS. UFUK ABDULLAH; SUSAN ABDULLAH; ET AL, Defendants MOTION TO STRIKE AMENDED AFFIRMATIVE DEFENSES, OR IN THE ALTERNATIVE, REPLY TO AFFIRMATIVE DEFENSES Plaintiff, Wells Fargo Bank, N.A. as Trustee for the MASTR Asset Backed Securities Trust 2007-NCW Mortgage Pass-Through Certificates Series 2007-NCW (“Plaintiff”),who files its Motion to Strike the Amended Affirmative Defenses raised by Defendant, UFUK ABDULLAH ANnb SUSAN ABDULLAH (“DEFENDANT”), or in the alternative, replies to said defenses, and states: 1 DEFENDANT filed a responsive pleading which set forth affirmative defenses. 2 Pursuant to Rule 1.140(b), the grounds on which affirmative defenses are based and the substantial matters of law intended to be argued “shall be stated specifically and with particularity.” 3 As articulated by the Third District Court of Appeal: «,.. the pleader must set forth the facts in such a manner as to reasonably inform his adversary of what is proposed to be proven in order to provide the latter with a fair opportunity to meet and prepare his evidence. Zito v. Washington Federal Savings & Loan Assoc. of Miami Beach, 318 So.2d 175, 176 (Fla. 3 DCA 1975).” 4. Affirmative defenses which are mere conclusions, not supported by any factual allegations are properly stricken. Fuller, Inc. v. Johnsberg, 107 Fla. 330, 144 So. 653. 5 Affirmative defense should be stricken where they are unsupported and just a conclusion, see, Chris Craft Industries Inc. vs Van Valkenberg 267 So . 2d 642 (Fla. 1972) 6. It is well settled that an affirmative defense is one that avoids the cause of action by raising a bar to recovery and is the nature of a confession and avoidance. The defendant party must admits the facts alleged by in support of the claim for the purpose of the argument, but argues that there are other facts that establish a bar to the claim, FDIC vs. Brodie 602 2.d 1358 (3" DCA 1992). 7 A party does not raise an affirmative defense merely by asserting a legal argument that would operate to limited the recovery. Nor does a party raise an affirmative defense by asserting a matter that might have the effect of offsetting the amount of damages ID at 1362. 8 Affirmative defenses do not simply deny the fact of the opposing claim they raise some new matter which defeats the otherwise valid claim, Tropical Exterminator Inc., vs. Murray 171 So 2d 432 (2™ DCA 1965). 9 Further it is proper for a court to strike an affirmative defense when the matter raised denied the facts and did not raise any new matter to defeat the complaint Gatt vs, Keyes Corp., 446 So 2d. 211 (3 DCA 1984). 10. Florida Rule of Civil Procedure 1.140(f) provides as follows: A party may move to strike or the court may strike redundant, immaterial impertinent or scandalous matter(s) from any pleading at any time. I. Each of Defendant's affirmative defenses, as plead, are insufficient as a matter of Page 2 of 13 law for one or more the following reasons: (a) it does not constitute a valid, legally recognized affirmative defense; (b) it lacks the specificity required by Rule 1.140(b); (c) it is so vague that Defendant cannot reasonably frame a response; and/or, (d) it is a mere conclusion, not supported by any specific allegations of facts. 12. Specifically Defendant pled ten (10) amended affirmative defenses as follows: FIRST DEFENSE - Standing 13. Defendant predicates his first argument on an alleged lack of standing, despite the fact that Plaintiff attached copies of the Mortgage, Note (which contains a blank endorsement), Loan Modifications, and Assignments of Mortgage to its Complaint. Thus, a “prima facie case” for standing has been made. See Lizio vs. McCullom 35 Florida Law Weekly D1292 (4" DCA June 9, 2010). Copies of the same are attached hereto as Exhibit, “A.” 14, As stated supra, the subject Note contains a blank endorsement, thus evidencing Plaintiff's standing in this action. This issue has been decided under Riggs v. Aurora Loan Services LLC , 36 So 2d 932 (DCA 4" 2010) which held as follows: “Aurora's possession of the original note, indorsed in blank, was sufficient under Florida's Uniform Commercial Code to establish that it was the lawful holder of the note, entitled to enforce its terms. The note was a negotiable instrument subject to the provisions of Chapter 673, Florida Statutes (2008). An indorsement requires a “signature.” § 673.2041(1), Fla. Stat. (2008). As an agent of First Magnus, Alday’s hand printed signature was an effective signature under the Code. See §§ 673.4011(2)(b), 673.4021, Fla. Stat. (2008). The indorsement in this case was not a “special indorsement,” because it did not “jdentif[y] a person to whom” it made the note payable. § 673.2051(1), Fla. Stat. (2008). Because it was not a special indorsement, the indorsement was a “blank indorsement,” which made the note “payable to bearer” and allowed the note to be “negotiated by transfer of possession alone.” § 673.2051(2), Fla. Stat. (2008). The negotiation of the note by its transfer of possession with a blank indorsement made Aurora Loan the “holder” of the note entitled to enforce it. §§ 673.2011(1), 673.3011(1), Fla. Stat. (2008).” Page 3 of 13 15. Further, and as stated supra, Plaintiff provided a Note Certification contemporaneously with its response, thus evidencing Plaintiff's physical possession of the loan documents prior to the inception of this action. A copy of the same is attached hereto as Exhibit, “B.” 16. A copy of Plaintiff's Bailee letter shows that the original promissory was sent by Plaintiff's loan servicer and then received by Counsel for Plaintiff on September 11, 2019. The Bailee Letter clearly demonstrates that the original loan documents were in the possession of Plaintiff prior to October 16, 2019, which was the date the complaint was filed in the above captioned action. A copy of the redacted Bailee letter and docket are attached hereto as part of Exhibit “C.” 17. This issue has been litigated numerous times, and was recently decided yet again in the Fourth District Court of Appeals. Indeed, the Court in JPMorgan Chase Bank National Assoc. v. Pierre, 2017 WL 1278071 (Fla. 4" DCA 2017) recently held: Importantly, a holder is entitled to enforce a note even if it “is not the owner of the instrument or is in wrongful possession of the instrument.” § 673.3011, Fla. Stat. (2013). Here, JPMorgan attached a copy of the Note bearing a blank indorsement to its complaint and presented the original Note, which was identical to the copy attached to its complaint, at trial. In doing so, JPMorgan established that it had possession of the Note indorsed in blank at the time it filed suit and, therefore, established that it had standing as holder of the Note. Becker, 42 Fla. L. Weekly at D344, —— So.3d at ——~. The fact that another entity may have been the owner of the Note has no bearing on JPMorgan's status as holder. § 673.3011, Fla. Stat. (2013). See also Tilus vy. AS Michai LLC, 161 So.3d 1284, 1286 (Fla. 4th DCA 2015) (“[U]nder the Uniform Commercial Code, a plaintiff is not required to be both the owner and holder of the note in order to have standing to foreclose”). Page 4 of 13 18. Finally in paragraph 26 Defendant assert Fraud as basis for the denial of standing, this paragraph is legally and factually insufficient as Rules 1.120(b) Fla. R. Civ. P. provides: “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with such particularity as the circumstances may permit. Malice, intent, knowledge, mental attitude, and other condition of mind of a person may be averred generally.” 19. “Where a litigant seeks to inject the issue of fraud into a lawsuit, Florida law requires that it be pled with precision, not just flung into the case willy-nilly.”); Flemenbaum vy. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994). Here, Defendant’s defense is patently insufficient, and should be struck as a matter of law. As such, the Court should strike this defense. SECOND DEFENSE - Failure to State a Cause of Action 20. Florida Statute §90.952 provides: “Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph (emphasis applied).” 21. As provided by statute, Rule 1.510(c) Fla. R. Civ. P. (In regards to summary judgment) states: “The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence (“summary judgment evidence”) on which the movant relies. The movant shall serve the motion at least 20 days before the time fixed for the hearing, and shall also serve at that time a copy of any ummary judgment evidence on which the movant relies that has not already been filed with the court (Emphasis Applied).” 22. Further, promissory notes qualify as summary judgment evidence, as referenced by Rule 1.510(c) Fla. R. Civ. P. See Verizzo v, Bank of New York, 28 So.3d 976 (Fla. 2d DCA Page 5 of 13 2010). Accordingly, Plaintiff is under no obligation to file the original loan documents at this time, and the Court should strike this defense. THIRD DEFENSE - Failure to mitigate Los: 23. This defense merely presents a legal conclusion devoid of any factual nexus to Plaintiff's alleged acts. The specificity required for pleading defenses is the same as that required to plead claims. Certainty is required when pleading defenses, and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient. Cady v. Chevy Chase Sav. & Loan, 528 So.2d 136, 138 (Fla. 4th DCA 1988). See also Bliss v. Carmona, 418 So.2d 1017, 1019 (Fla. 3d DCA 1982). 24. Further, Rule 1.130 of the Florida Rules of Civil Procedure states: “All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleadings.” Defendant’s failure to attach any documentation to support this defense precludes its from possessing any merit. As such, the Court should strike this defense. FOURTH DEFENSE - Breach of Contract 25. The elements of a breach of contract action are: (1) a valid contract; (2) a material breach; and (3) damages. Although Plaintiff does not deny the existence of a valid contract, Defendant fails to allege the existence of the other two elements necessary to support this cause of action. 26. Specifically, to constitute a vital or “material breach,” the nonperformance must go to the essence of the contract. Covelli Family, L.P. v. ABGS, L.L.C., 977 So.2d 749, 752 Page 6 of 13 (Fla. 4" DCA 2008). Here, the essence of the contract was the financing for the purchase of real property, and not to file the original loan documents with the Court. Accordingly, the Court should strike this defense. FIFTH DEFENSE - Conditions Precedent 27. When pleading Affirmative Defenses, Florida Rule of Civil Procedure 1.110(f) requires that the contents of a defense, as far as possible, be limited to a single set of circumstances. This Affirmative Defense, by its sole paragraphs pleads two alternative and distinct sets of circumstances. First, that Plaintiffs predecessor in interest failed to comply with conditions precedent, and alternatively, that Plaintiff's failed to properly verify its’ Complaint. This fact alone merits the striking of this defense. If, however, the Court requires additional argument Plaintiff responds as follows. 28. Plaintiff moves to strike the same, in that Plaintiff pled in Paragraphs 12 and 130f its Complaint as follows: “On October 14, 2018, Defendant(s) was sent a Notice of Default / Right to Cure / Notice of Intent to Accelerate letter which informed the Defendant(s) that they were in default under the terms of the Note and Mortgage. A copy of this letter is attached hereto as Exhibit "E". All conditions precedent to the acceleration of this mortgage note and to foreclosure of the mortgage have been fulfilled and have occurred.” Plaintiff attached to its Complaint, and referenced the same by incorporation under Florida Rules of Civil Procedure, Exhibit “E.” A copy of said Exhibit is attached hereto as Exhibit “D.” A copy of the acceleration letter was provided via U.S. Mail (which is consistent with the terms and conditions of the mortgage) sent to defendant at his/her last known address advising that effective October 14, 2018, that the mortgage was in arrears and giving thirty-five (35) days to come into compliance per paragraph 22 of the mortgage. Defendant has not alleged that she Page 7 of 13 tendered or attempted to tender said sums. Plaintiff filed its Complaint on October 16, 2019, well in excess of the thirty-three days’ mailing notice that Defendant contends he/she is entitled to. 29. Additionally, Paragraph twenty-two of the subject mortgage provides: “Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to the Borrower, by which default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceedings and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceedings the non-existence of a default or any other defense of Borrower to acceleration and foreclosure” A copy of the subject Mortgage is attached hereto as Exhibit, “A.” 30. In conformity with the aforementioned covenant, Plaintiff's Notice stated that (1) default occurred due to a failure to make the June 1, 2018, payment and each one thereafter; (2) that $13,170.98 was needed to cure the default; (3) that defendant had thirty-three (33) days to cure the default; (4) that failure to pay the total amount due may result in foreclosure and sale; (5) that the right to reinstate exists; (6) and that the borrower has the right to assert defenses. Again, a copy of said Notice is attached hereto as Exhibit, “A.” 31. Further, Florida law now illustrates that a Defendant must show actual prejudice to properly defend an action based upon insufficiency of notice. In Gorel v. Bank of New York Mellon, the Fifth District Court of Appeals held: “Bank's default letter set a cure date twenty-nine days later, not thirty or more as required. We agree with Bank that the defective notice did not prejudice Mr. Page 8 of 13 Gorel, as he made no attempt to cure the default. Absent some prejudice, the breach of a condition precedent does not constitute a defense to the enforcement of an otherwise valid contract.” 165 So.3d 44, 47 (Fla. 5" DCA 2015). 32. The Fifth District further fortified this holding in Vasilevskiy v. Wachovia Bank, when it held: “Although Appellee breached the contractual provision that required a full thirty days’ notice, we conclude that the breach of contract was not material. The purpose of the notice provision is to allow the mortgagor to cure the default prior to acceleration. The shortage of two days was insignificant under the facts of this case. See Gorel v. Bank of New York, Mellon, 165 So.3d 44, 47 (Fla. 5th DCA 2015) (citing Allstate Floridian Ins. Co. v. Farmer, 104 So0.3d 1242, 1248-49 (Fla. 5th DCA 2012) (breach of condition precedent must be material, meaning one causing prejudice, *193 to constitute defense to enforcement of contract)).” 171 So.3d 192, 193 (Fla. 5" DCA 2015). 33. Next, Defendant claims that Plaintiff failed to verify its’ Complaint correctly, despite making any further argument to support this notion. Thus, Plaintiff is simply left to guess at the argument Defendant intends to make. 34. Assuming Defendant intends to argue that Plaintiffs servicer cannot execute the subject verification, the Second District Court of Appeals recently held that verification by a loan servicer complied with Rule 1.110(b) Fla. R. Civ. P. 35. In Deutsche Bank National Trust Co. v. Prevratil, Deutsche Bank sought certiorari review of an Order granting a Motion to Dismiss which was based on a servicer’s execution of the requisite verification on its’ Complaint for foreclosure. 2013 WL 845285 (Fla. 2d DCA 2013). Specifically, the Court held that the trial court departed from essential requirements of law, by requiring verification of mortgagee's foreclosure complaint by mortgagee Page 9 of 13 rather than by mortgagee's loan servicer, where mortgagee had executed power of attorney naming loan servicer as attorney in fact for mortgagee, and power of attorney predated filing of complaint. Id. 36. Here, as in Prevratil, the Plaintiff executed a Power of Attorney to its Loan Servicer prior to the inception of this action. A copy of the same is attached hereto as Exhibit, “ER” Accordingly, the Court should strike this defense. SIXTH DEFENSE - Setoff 37. This defense merely presents a legal conclusion devoid of any factual nexus to Plaintiff's alleged acts. The specificity required for pleading defenses is the same as that required to plead claims. Certainty is required when pleading defenses, and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient. Cady v. Chevy Chas Sav. & Loan, 528 So.2d 136, 138 (Fla. 4th DCA 1988). See also Bliss v. Carmona, 418 So.2d 1017, 1019 (Fla. 3d DCA 1982). 38. Finally, Rule 1.130 of the Florida Rules of Civil Procedure states: “All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions. Defendant’s failure to attach any documentation to support this defense precludes it from possessing any merit. As such, this defense is legally insufficient and should be struck as a matter of law. SEVENTH DEFENSE - Failure to Comply with Federal Law 39. This defense merely presents a legal conclusion devoid of any factual nexus to Plaintiff's alleged acts. The specificity required for pleading defenses is the same as that required to plead claims. Certainty is required when pleading defenses, and pleading conclusions Page 10 of 13 of law unsupported by allegations of ultimate fact is legally insufficient. Cady v. Chevy Chase Sav, & Loan, $28 So.2d 136, 138 (Fla. 4th DCA 1988). See also Bliss v_ Carmona, 418 So.2d 1017, 1019 (Fla. 3d DCA 1982). 40. Finally, Rule 1.130 of the Florida Rules of Civil Procedure states: “All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought er defense made, or a copy thereof or a copy of the portions. Defendant's failure to attach any documentation to support this defense precludes it from possessing any merit. 41. Finally, Defendant already received one modification of the subject loan, and nothing that Defendant cites to amortgagee to provide a second one. As such, this defense is legally insufficient and should be struck as a matter of law. EIGHTH DEFENSE - Incapacity to Sue 42. Rule 1.120 Fla. R. Civ. P. states: “It is not necessary to aver the capacity of a party to sue or be sued, the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organized association of persons that is made a party, ecept to the extent required to show the jurisdiction of the court.” Plaintiff, however, shows the Court’s jurisdiction in Paragraphs two (2) and eight (8) of its Complaint, thus complying with the Florida Rules of Civil Procedure. As such, this defense should be struck. NINTH DEFENSE - Promissory Estoppel 43. Defendant fails to acknowledge the existence of paragraph twelve (12) of the subject Mortgage, which neuters this defense totally. Indeed, the aforementioned paragraph states: Page 11 of 13 12. Borrower Not Released: Forbearance By Leader Not a Waiver. Extension of the tim payment or modifi oF amertigation the su s secured by this Securit: Stra nf granted by Len to Borrower or an: sor i Infere: Boris ee | not operate tor liability of Borrower or any Successors Interest of Borrower. Lender shal! not be required to con proceedings a, st any Suc Orin Interest of Borrower or to reflise to extend 0 ne for p mem of otherwise modify amet Hien of the sums secured by th Security Instrarsent by 2 n of any made by the or inst Borrower or any Successors in Interest of Bor: Ww Any forbearance oy Lendee in exerci ng any Lor remedy including, without ation, Lender's pianee of payments from third p AS,iS, oF Successors in Interest of Borrower or in amount: 8 than the amount then due, te. A not be a waiver of or areclude the exercise of any right or remedy. Again. a copy of the subject Mortgage is attached hereto as Exhibit, “A.” As such, the Court should strike this defense VENTH DEF Attorney Fees 44 itis well settled that an affirmative defense is one that avoids the cause of action by raising a bar to recovery and is the nature of a confession and avoidance he defendant party must admits the facts alleged by in support of the claim for the purpose of the argument, but argues that there are other facts that establish a bar to the claim. EDIC vs, Brodie 602 2.d 1358 3" DCA 1992), Here, this proposed defense fails to present a viable defense and it should be struck accordingly WHE EFORE, Plaintiff requests that this Court enter an Order striking Defendant's Affirmative Defenses and such other relief the Court deems just and proper LAw OF £ OF GARY G SSEL, PLA. 2191 Ringling Boulevard Sarasot lorida 34237 Prim; email: Pleadin: ia law.com Secondary email: EFiling@ Gassellaw.com (941) 952 9322 F » (941) 365+ 0997 Attornes-for Paintitl By: inn GARY * ST quire Florida B 10690 Page 12 of | CERTIFICATE OF SERVICE THE 3Y CERTIFY that a true and correet copy of the foregoing has been duly furnished by C irst Class Mail and/or Eservice to: Ufuk Abdullah & Susan Abdullah Penant I/Unknown Tenant n/k/a Mia C/O Ronald M. Hand, Esq. Abdullah, 122 S. Rose Avenue 4454 Mildred Bass Road K nmee, FL 34741 Saint Cloud, PL 34772 mmh@rhandpa.com ’ J this ~~ day of April, 2020 GA YG Page 13 of 13 i ————— “4 Abaiis MIN: 1490759 218 ADJUSTABLE RATE BALLOON NOTE 2 Year Rate Lock (LIBOR Six-Month Index (As Published In The Walt Street Jaurnal)- Rate Caps) THIS NOTE CONTAINS PROVISIONS ALLOWING FOR CHANGES IN MY INTEREST RATE AND MY MONTHLY PAYMENT. THIS NOTE LIMITS THE AMOUNT MY INTEREST RATE CAN CHANGE AT ANY ONE TIME AND THE MAXIMUM RATE I MUST PAY. THIS LOAN IS PAYABLE IN FULL _AT MATURITY. YOU MUST REPAY THE ENTIRE PRINCIPAL BALAN! F THE LOAN AND UNPAI D_INTEREST TI DUE NDER AS UNDER NO ON TO REFINANCE T! AN AT THAT TIME. YOU WILL, THEREFORE, BE REQUIRED TO MAKE PAYMENT UT OF OTHER ASSETS THA’ ‘T YOU MAY OWN, OR YOU WILL HAVE TO FIND A LENDER, WHICH MAY FE THE LENDER YOU HAV! THIS LOAN WITH, WILLING TO LEND YOU THE MONEY IF _YC REFINANCE THIS LOAN AT MATURITY, YOU AY HAVE TO PAY SOME OR ALL OF THE CLOSIN COSTS NORMALLY ASSOCIATED WITHA NEW LOAN EVEN IF YOU OBTAIN REFINANCING FROM Ti SAME LENDER. January 30, 2007 T CLOUD Florida {Datel ieity] [Sante 4454 MILDRED BASS RD, SAINT CLOUD, FL 34772 (Property Address} 1, BORROWER'S PROMISE TO PAY In return for a loan that [have received, | promise to pay U.S. $ 468,000.00 (this amount is called Principal"), plus interest, to the order of Lender. Lender is New Century Mortgage Corporation Twill make all payments under this Note in the form of cash, check or mon y order unt ind that Lender may nsfer this Note. Lender or anyone who es this Note by transfer and who ts entitled to receive payments under this Note is called the "Note Holder." 2. INTEREST Interest will be charged on unpaid principal until the full amount of Principal has been paid. | will pay interest at a yearly rate of 8.250%, The interest rate | will pay may change in accordance with Secuon 4 of th ole. The interest rate required by this Section 2 and Scction 4 of this Note is the rate | will pay both bet after any detault described in Section 7(B) of this Note 3. PAYMENTS {A) Time and Place of Payments f will pay principal and interest by making a payment every month. Twill make my monthly ments on the first day of each month beginning on March 1, 2007 My monthly payments will be on an as: ed 40 ove nor ation period (the “Amortization Pi will make these payments every month unti have paid all of thepi nd interest and any other charges escribed below that 1 may owe under this Note. Each monthly payment will be ‘applied as of its scheduled due date and will be applied to interest before Princiy py Y2ANI/2037 ~ [still owe amounts under this Note, | will pay those amounts in full on that date, which i: ‘alled the "Maturity Date.” 1} will make my monthly payments at 18400 Von Karman, Suite 1000, Irvine, CA 92612 or ata different place if required by Note Holder, (B) Amount of My Initial Monthly Payments ach of my initial monthly payments will be in the amount of U.S. $3,342.17 This amount may change (C) Monthly Payment Changes Changes in my monthly payment will reflect changes in the unpaid principal of my loan and in the interest that | must pay. The lote Holder will determine my new interest rate and the changed amount of my monthly nent in accordance with Section 4 of thir More ; NCMC Adjustable Rate Bai Aad RE-SI9 (011806) oo ’ AAS EREST RATE AND MONTHLY PAYMENT CHANGES (A) Change Dates The interest rate | will pay may change on the first day of February, 2009 . and on that day every 6th month thereafter. Each date on which my interest rate could change is called a "Change Date." (B) The index Beginning with the first Change Date, my interest rate wll be bassd on an Index. The “Indes” is the average of interbank fered rates for six month U.S. dollar-denominated deposits in the Loudon market ("LIBOR"), as published in The Walt Street Journal. The most recent Index figure available as of the first business day of the month immediately preceding the month in which the Change Date occurs is called the "Current Index.” If the Index is no longer available. the Note Holder will choosea new index that is based upon comparable information. The Note Holder will give me notice of this choice. (C) Calculation of Changes Before each Change Date. the Note Holder will calculate my new interest rate by adding Six And Five Hundredth({s) percentage points (6.050 a) to the Current Ind The Note Holder will then round the result of tis addition to the nearest one-eighth of one percentage point (0. 12: . Subjeet to the limits stated in ction 4(D) below. this rounded amount will be my new interest rate until the next Change Date. The Note Holder will then detenvine the amount of monthly payment that would be sufficient to ay the unpaid principal that | am expected to owe on the Change Date in full over the remaining Amortization Period at my new interest rate in substantially equal payments. The result of this calculation will be the new amount of my monthly payment Notwithstanding the Amortization Period applicable to this Note, the entire unpaid principal amount wall be fully du nd payable on the Matunty Date. (D) Limits on Interest Rate Changes The interest rate | am required to pay at the first Change Date will not be greater than 10.250% or tess than 8.250. Thereafter. my interest rate will never be inerea ed or decreased on an ingle Change Date by more than One And One-half percentage point(s) (1.500 %) from the rate of interest | have been paymg for the preceding 6 months. My interest nate will never be greater than 15.250 %. (E) Effective Date of Changes My new interest rate will become effective on each Change Date. | will pay the amount of my new monthly payment on the first monthly payment date after the Change Date until the amount of my monthly payment changes aya, beginning (F) Netice of Changes The Note Holder will deliver or mail to me a notice of an changes in my interest rate and the amount of my monthly payment before the effective dute of hange. The notice will include formation required by law tw be given to me and also the title and telephone number of a person who will unswer any question | may have regarding the notice: 5. BORROWER'S RIGHT TO PREPAY Thave the right to make payments of Principal at any time before they are due, A payment of Principal only is known as a “Prepayment.” When 1 make a Prepayment. | will tell the Note Holder in writing that Lam doing so. | may not designate a payment as a Prepayment if [ have not made all the monthly payments duc under this Note. I may make a full Prepayment or partial Prepayments without paying any Prepayment charge. The Note Holder will use my Prepayments to reduce the amount of Principal that | owe under this Note, However. the Note Holder may apply: my Prepayment to the accrued and unpaid interest on the Prepayment amount before applying my Prepayment to reduce the Principal amount of this Note. If | make a partial Prepayment, there will be no changs in the due dates of my monthly payments unless the Note Holder agre in writing to those changes. My partial Prepayment may reduce the amount of my monthly payments after the first Change Date following my partial Prepayment. Hows ver. any reduction due to my partial Prepayment may be offset by an interest rate increase. 6. LOAN CHARGES If a law, which applies to this loan id which sets maximum loan charges, is finally mterpreted so that the interest or other loan charges collected or to be collected in connection with this loan execed the permitted limits. then: (3) such loan charge shall be reduced by the amount ne ry to reduce the charg: ¢ to the permitted limit, and (b) any sum alre: collected from me that exceeded permitted limits will be refunded to me. The Note Holder may choose to make th refund by reducing the Principal {| owe under this Note or by making a direct payment to me. If a refund reduces Principal. the reduction will be treated as a partial Prepayment. NCM Adj sable Rate Balloon Note (FLY Page 2 of 4 -$19 (011806) Mate Us en 1s . . |ORROWER'S FAILURE TO PAY AS REQUIRED (A) Late Charges for Overdue Payments If the Note Holder has not received the full amount of any monthly payment by the end of €ifteen calendar days after the date it is duc, I will pay a late charge to the Note Holder. The amount of the ch ge Will be 5.000 % of my overdue payrsent of principal and interest, | will pay this late charge promptly but only once on cach late payment. (B) Default If | do not pay the full amount of cach monthly payment on the date itis due. | will be in default. (C) Notice of Default If | am in default, the Note Holder may send me a written notice telling me that if | do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal that has not heen paid and all the interest that | owe on that amount. That date must be at least 30 days after the date on which the notice is mailed to me or delivered by other means. {D) No Waiver By Note Holder Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in full as deseribed above, the Note Holder will still have the right to do so if [ am in default at a later time. {E) Payment of Note Holder's Costs and Expenses If the Note Holder has required me to pay immediat in full as described above. the Note Holder will have the right to be paid back by me for all of its costs and expenses in cnforcing this Note to the extent not prohibited by appheable law Those expenses include, for example, reasonable attorneys’ fees. 8. GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to me under this Note will be given by delivering it or by mailing it by first class mail to me at the Property Address above or at a different address if | give the Note Holder a notice of my different address. Unless the Note Holder requires a different method. any notice that must be given to the Note Holder under this Note will be given by mailing it by rst c mail to the Note Holder at the addr: stated in Section 3¢A) above or at a different address if| am given a notice of that different address. 9, OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person signs his Note, gach person is fully and personally obligated to keep all of the promise: made in this Note, including the promise to pay the full amount owed, Any person who is a guarantor, surety or endorser of thir Note is also obligated to do these things. Any person who takes over these obligations. including the obligations of a guarantor, surety or endorser of this Note, also obligated to keep all of the promises made in this Note. The Note Holder nay enforce its rights under this Note ag ch person individually or against all of us together, This means that any one of us may be required to pay all of the amounts owed under this Note. 10, WAIVERS (and any other person who has obligations under this Note w ¢ the rights of Presentment and Notice of Dishonor, “Presentment” means the right to require the Note Holder to demand payment of amounts due. "Notice of Dishonor” means the right to require the Note Holder to give notice to other persons that amounts due have not been paid. 11. UNIFORM SECURED NOTE This Note is a uniform instrument with limited variations in some jurisdictions. In addition to the protections given to the Note Holder under this Note, a Mortgage. Deed of Trust. or Security Deed (the “Security Instrument"), dated the same date as this Note, protects the Note Holder trom possible losses that migt resul€ if Ldo not keep the pronttses that | make in this Note, That Security Instrument describes how and under what conditions | may be required to make immediate payment in full of all amounts [ owe under this Note. Some of those conditions read as follows: 1 NCMC Vv Adjustabbe el Fibslioon Note (FL) Page 3 of + RE-519 (011896) vs 5 Transfer of the Property or a Beneficial Interest in Borrower. As used in this Section 1%, interest in the Property" means any legal or beneficial mterest in the Property. gz. but not limited to. those beneticial inclu: interests transferred in a bond for deed. contract for deed, installment les contract or escrow agreement, the intent of which is the transfer of title by Borrower at a future date to a purchaser. If all of any part of the Property or any Interest in the Property is sold or transferred (or if Borrower Is nota natural person and a beneficial interest in Borrower is sold or transferred) without Lender's prior written consent Lender may require immediate payment in full of all sum: secured by this Security Instrument, However. ds option shall not be exercised by Lender if such exercise is prohibited by Applicable Lender also shall not exercise this option if; (a) Borrower causes to be submitted to Lender information required by Lender to evaluate the intended transferee as if a new loan were being made to the transferee; and (>) Lender reasonubl. determines that Lender's security will not be impaired by the loan assumption and that the risk of a breach of any covenant or agreement in t Security Instrument i: ceptable to Lender. To the extent permitted by Applicable Law, Lender may charge a reasonable fee as a condition to Lender's consent to the loan assumption, Lender also may’ require the transterce to sign n assumption agreement that is acceptable to Lender and that obligates the tran ee to keep all the promises and agreements made in the Note and in this Security Instrame Borrower will continue to be obligated under the Note and this Security Instrument unless Lender rele Borrower in writing. If Lender exercises the option to require immediate payment in full, Lender ¢ Borrower neti of acceleration. The hotice shall provide a period of not tess than 30 days from the date the notice ts given in accordance with S: n within which Borrower must pay all sums sceured by this S uri Instrument. Borrower fails to pay these sums prior to the expiration of this period, Lender may nyoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. i 12. DOCUMENTARY TAX i The state documentary tax due on this Note has been paid on the mortgage securing (hts mdebtedness, : WITNESS THE HAND(S) AND SEAL(S) OF THE UNDERSIGNED \ - ACC, (Seal) Borrower Borowe (Seal) UFUK ABDULLAII aoe a (Seal) (Seal) Borrower “Be: meer (Seal) as I) Harrewer Herrewes -- (Seal) (Seal) Borrower -Borower {Sign Original Onty] NCMC AdiustsbRBRMGHBatoon Note UL) Page d of & RF-S19 (01 1806) a on ‘a Pay to the order of.witnout recourse ee New Cei a tg) ‘orporation “StevéNas 3 VP Records Managemen | TA ETHAN 96233 Ps 101 bare 208002982 oe ane an sce DING 10,00 ‘Recording Requered By: eine HANES 1,00 Bank of America Prepared By: Dlans DeAvila ‘When recorded mail to: 450 E. Boundary St. Attn; Release Dept. 4454 Mildred Bass Red Saint: FL 34772-8084 2m ot Ror 100K ASSIGNMENT OFMORTGAGE For Value Received, the undersignedhel ‘of a Morigage: ‘whose address is 1901 E Voorhees Stent Sus Dang ratte dey rty Ma pn cance coney ate WELLSEARGO BANK, NA., AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF MASTR ASSET-BACKED SECURI TRUST 2007-NCW, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-.NCW whose ‘OLD ANNAPOLIS RD, COLUMBIA, MD 2104S aif beneficial imerest under that certain Mortgage described below together with the note(s} and therein described and the money due end to bevome due thereon nterest and all rights acerued or to accrue under sald Monigage. Original Lender: NEW CENTURY MORTGAGE CORPORATION Original Borrower(s): UFUK ABDULAH AND SUSAN ABDULLAH, HUSBAND AND WIFE Dete of Mortgage: 13072007 Original Loan Amount: Recorded in Oseeole County,F L on: 3/1/2007, bock 03421, page 0909 and instrument number 2067042182 SN. WITNESS WHEREOF, the undersigned has caused this Assigameatof Mortgage to be exeruledon wok ELECTRONICKae REGISTRATION SYSTEMS, INC. —— win Ste of California ‘County of Ventura on FEB OT tone yt % ac on be Base of sptisfactory evide