Motion,Ex Parte: Melotti, Peter A Vs Melotti, Karen M

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                                IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA CIVIL ACTION

BANC OF AMERICA FUNDING 2005-B TRUST
ON BEHALF OF THE CERTIFICATE HOLDERS,

 

 

 

Plaintiff,
vs. Case No. 09-5826 CA ,
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PETER A. MELOTTI a/k/a PETER MELOTTI, et al. v i = cm
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MOTION FOR LEAVE TO ADD AFFIRMATIVE DEFENSES 3 = S.
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Defendants PETER A. MELOTTI and KAREN M. MELOTTI (hereinaftee
“Defendants”), by and through the undersigned attorney, and pursuant to Rule 1.190 Fla. R. Civ.
P. move this honorable Court for Leave to Add Affirmative Defenses by interlineation and as
grounds therefore state:

GROUNDS FOR MOTION

 

1. This motion is filed under the authority of Rule 1.190(a) of the Florida Rules of
Civil Procedure.

2. The Defendants timely responded to Plaintiff's complaint by filing a pro se
Answer and affirmative defenses under certificate of service dated July 28, 2009.

3. Rule 1.190(a) provides that “leave of the court shall be given freely when justice
so requires.”

4. This matter has not been set for trial.

5. To the extent the filing of a affirmative defenses may prejudice or burden any
adverse party to this action, such concerns are substantially outweighed by the hardship to the

Defendants if they are not permitted to amend their Answer to add affirmative defenses.6. Defendants propose to add the following affirmative defense by interlineating to

their Answer:

1. Plaintiff failed to perform all conditions precedent prior to filing this suit
and accelerating the Mortgage. Specifically, Plaintiff failed to furnish Defendants with
written notice of the default prior to filing this action as required by paragraph 22 of the
mortgage.

2. As an Affirmative Defense to Count II of the Plaintiffs Complaint
Defendants allege they are not adequately protected against a loss that might occur by
reason of a claim by another person to enforce the note and mortgage as required by law.

3. Pursuant to the exhibits attached to the Plaintiff's very own Complaint, the
owner and holder of the note and mortgage is GreenPoint Mortgage Funding, Inc., and
not the Plaintiff. Accordingly, the Plaintiff has no standing to file this action.

4. Plaintiff failed to comply with applicable pooling and servicing agreement
Joan servicing requirements:

a. Plaintiff failed to provide separate Defendants with legitimate and
non predatory access to the debt management and relief that must be made
available to borrowers, including these Defendants pursuant to and in accordance
with the Pooling and Servicing Agreement filed by the Plaintiff with the
Securities and Exchange Commission that controls and applies to the subject
mortgage loan. Plaintiff's non-compliance with the conditions precedent to
foreclosure imposed on the Plaintiff pursuant to the applicable pooling and
servicing agreement is an actionable event that renders the filing of this action

prematureb. Alternatively or additionally, the Defendants are third party
beneficiaries of the Plaintiff's pooling and servicing agreement and entitled to
enforce the special default servicing obligations of the Plaintiff specified therein.

c. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff
demonstrates compliance with the foreclosure prevention servicing imposed by
the subject pooling and servicing agreement under which the Plaintiff allegedly
owns the subject mortgage loan.

d. The Plaintiff failed, refused or neglected to comply with prior to
the commencement of this action with the servicing obligations specifically
imposed on the Plaintiff by the pooling and servicing agreement in many
particulars, including but not limited to:

1. Plaintiff failed to service and administer the subject
mortgage loan in compliance with all applicable federal, state and local
laws.

2. Plaintiff failed to service and administer the subject
mortgage loan in accordance with the customary and usual standards of
practice of mortgage and servicers.

3. Plaintiff failed to extend to Defendants the opportunity and
failed to permit a modification, waiver, forbearance, or amendment of the
terms of the subject loan or to in any way exercise the requisite judgment
as is reasonably required pursuant to the pooling and service agreement.

e. Plaintiff's failure to meet the servicing obligations imposed by the

pooling and service agreement cause the filing by Plaintiff of this foreclosure tobe in premature, in bad faith and a breach by Plaintiff of its obligations to
Defendants implied in the mortgage contract and as specified in writing in the
pooling and service agreement, to act in good faith and to deal fairly with
Defendants.

f. Instead, Plaintiff's servicing failures as set forth herein render
Plaintiff's actions in filing this premature foreclosure to be in bad faith and not
acceptable loan servicing under the written contracts between the parties which
include the mortgage, pooling and servicing agreement incorporated therein or by
which Defendants are third party beneficiaries thereof and the promissory.

g Plaintiff intentionally failed to act in good faith or to deal fairly
with these Defendants by failing to follow the applicable standards of residential
single family mortgage lending and servicing as described in these Affirmative
Defenses thereby denying these Defendants access to the residential mortgage
lending and servicing protocols applicable to the subject note and mortgage.

h. Plaintiff has failed to show a complete chain of endorsements from
GreenPoint Mortgage Funding, Inc. to the Plaintiff as required by the pooling and
servicing agreement.

WHEREFORE Defendants demand the Plaintiff's Complaint be dismissed with
prejudice, and for their attorney’s fees and cost and for all other relief this Court deems just and
appropriate.

WHEREFORE based upon the foregoing, the Defendants respectfully request for this
Court grant it leave to add the foregoing affirmative defenses, and accept this Motion as the

filing of the same.CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished this
5D bay of May 2010 by fax and regular U.S. mail to Marisol Morales, Esq., Greenspoon Marder,
P.A., Trade Centre South, Suite 700, 100 West Cypres Creek Road, Ft. Lauderdale, FL 33309.
MARC L. SHAPIRO, P.A.
720 Goodlette Rd. N., Ste. #304
Naples, FL. 34102

(239) 649-8050
(239) 649-8057

  
  

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