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IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR OSCEOLA COUNTY, FLORIDA
CASE NO: 09-CA-006462-MF
THE BANK OF NEW YORK MELLON
TRUST COMPANY, NATIONAL
ASSOCIATION FKA THE BANK OF NEW
YORK’TRUST COMPANY, N.A. AS
SUCCESSOR TO JPMORGAN CHASE
BANK, N.A. AS TRUSTEE FOR RAMP —s On,
2005RZ3, = rate
=
Plaintiff, Se
= rene
om
2 A
vs. ondaie
z Lm
22 4 an
ERIC SANTIAGO, ET AL., Toe
205
Defendants. pcm
on
ANSWER
Defendant Eric Santiago (“Defendant”), by and through the undersigned counsel,
serves his answer Plaintiffs Amended Complaint stating as follows:
Answer to Allegations of Counts |
4 admits the allegations of Paragraph Nos. 1, 2, and 6.
Defendant
Defendant admits allegations of Paragraph No. 17 in that Luis A. Gonzalez may claim
some interest in the real property subject of this dispute, otherwise denied.
2 Defendant specifically denies that a promissory note and mortgage was
executed as alleged in Paragraph Nos. 3.
3 Defendant denies the allegations of Paragraph Nos. 4, 5, 7, 8, 9, 10, 11,
12, 13, 14, 15, 16 and 18, and demands strict proof.
"
4 Defendant specifically denies the allegations of Paragraph Nos. 8 because
neither the Plaintiff nor any real party in interest has met each and every condition
precedent to bringing this legal action.
5 The Plaintiff has not served Defendant with a valid notice of default prior to
acceleration and prior to bringing this action, as required pursuant to Paragraph No. 22
of the mortgage, which states:
22. Acceleration; Remedies. 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 paragraph 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 Borrower, by which the 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 proceeding 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 proceeding the
non-existence of a default or any other defense of Borrower to
acceleration and foreclosure. If the default is not cured on or before the
date specified in the notice, Lender at its option may require immediate
payment in full of all sums secured by this Security Instrument without
further demand and may foreclose this Security Instrument by judicial
proceeding. Lender shail be entitled to collect all expenses incurred in
pursuing the remedies provided in this Section 22, including, but not
limited to, reasonable attorneys’ fees and costs of title evidence.
6 The Plaintiff has not complied with all the requirements pursuant to Pub.L.
110-343, 122 Stat. 3765, enacted October 3, 2008, known as Emergency Economic
Stabilization Act of 2008 and Troubled Assets Recovery Program. This statute requires
participating mortgage lenders and servicers to, inter alia, perform pre-foreclosure
waterfall calculations analysis and mandates offering Defendant a loan modification,
which the Plaintiff has not done;
7 The Plaintiff has not complied with all requirements pursuant to the
Pooling and Servicing Agreement (‘PSA’)' and related governing documents of the
REMIC trust shown in the style of this case, including without limitation, (a) applying to
mortgage account all sums paid by or on behalf of Defendant pursuant to applicable
credit enhancements, such as from overcollateralization, cross-collateralization,
subordination of certain certificates, interest rate swap agreements, interest rate cap
agreements, surety agreements and other insurances as described within the PSA, the
424B5 Prospectus and supporting exhibits,? (b) demanding Servicer compliance with
PSA requirement to make advances in accordance with the governing trust documents
of the mortgage pool;
8 The Plaintiff has not sought made demand for payment upon endorsers,
guarantors or sureties associated with the promissory note subject of this action by
sending a notice of acceleration and allowing 30 days to cure the default, pursuant to
Paragraph No. 9 of the promissory note;
9 The Plaintiff has not joined indispensable parties to this action, such as
the endorsers, guarantors or sureties associated with the promissory note subject of this
action, as these are parties that have an interest in the subject matter of this dispute
and in the real property subject of the foreclosure action;
10. The Plaintiff has not sought approval of all parties having a direct or
collateral interest in the mortgage loan subject of this action by way of participation in
any credit default swap agreements, collateralized debt obligations or re-securitizations.
A copy of this document is found at http:/Awww:secinfo.com/d1 8Se2.zd.d.htm#1stPage
2 Such as PSA § 4.01-4.07
Defense Allegation
11. Origination. The original mortgagee under loan subject of this action is
Mortgageit, Inc. as reflected by the copy of the promissory note and mortgage attached
to Plaintiffs Amended Complaint. There is no allegation or other indication whatsoever
that the original mortgagee ever transferred or sold this loan toany one specific entity or
person. The following facts are asserted in defense.
12. The Trust. The trust shown in the style of this case is identified as RAMP
2005RZ3, a legal entity that came into existence on September 1, 2005 with the
execution of the PSA.
13. The certificated trust is an investment vehicle organized to avoid taxation
by its operation as a pass-through income stream which is recognized under federal law
as Real Estate Mortgage Investment Conduit (“REMIC”). Investment income derived
from the assets held by the trust passively move through this legal entity and to the
fractional share owners of the pool assets. These fractional shares are represented as
certificates.
14. This trust is organized under New York law as stated in the Pooling and
Servicing Agreement (“PSA”), the main governing trust document. There, the PSA
specifically expresses this jurisdiction as the choice of governing law. See PSA Article
XI, Section 11.04, stating:
This agreement and the Certificates shall be governed by and
construed in accordance with the laws of the State of New York and
‘the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.
15.°* Mortgage Loan Conveyance Requirements. For the Plaintiff to. have
any right of action pursuant to its authority as trustee, the mortgage loan must be an
asset of this specific trust. For the trust to claim such ownership under New York law
there must be strict compliance with the requirements set out in the Mortgage Loan
Purchase Agreement and the PSA.
16. Transfer of the Loan. The PSA sets out the purchase and conveyance
requirements for loan assets intended to be deposited into the mortgage pool for which
the Plaintiff asserts it is a trustee. More specifically, the transfer of these assets is set
out at Section 4
17. Article Il of the PSA, beginning at Section 2.01 describes these
requirements. Without strict compliance to these requirements the mortgage loan never
becomes an asset of this trust.
18. PSA Section 2.01states:
(b) In connection with such assignment, and contemporaneously with the
delivery of this Agreement, except as set forth in Section 2.01(c) below
and subject to Section 2.01(d) below, the Depositor does hereby deliver
to, and deposit with, the Trustee, or to and with one or more Custodians,
as the duly appointed agent or agents of the Trustee for such purpose, the
following documents or instruments (or copies thereof as permitted by this
Section) with respect to each Mortgage Loan so assigned:
(i) The original Mortgage Note, endorsed without recourse to the order of
the Trustee and showing an unbroken chain of endorsements from the
originator thereof to the Person endorsing it to. the Trustee, or with respect
to any Destroyed Mortgage Note, an original lost note affidavit from the
related Seller or Residential Funding stating that the original Mortgage
Note was lost, misplaced or destroyed, together with a copy of the related
Mortgage Note;
19. The above subsection limits the types of loans that may become part of
this mortgage pool. To the extent the Plaintiff has not complied with the requirements of
Section 2.01 the mortgage loan never becomes an asset of this trust and thus would
lack standing to seek enforcement in the above-styled action.
20. Furthermore, under repurchase obligations and substitution of loans, as
defined at PSA Section 2.03, the Trustee is required to enforce the obligations of the
Seller within 90 days after the date on which the Seller was notified of such missing
document, defect or breach.
21. These provisions makes it impractical and highly suspect that the Plaintiff
could acquire the mortgage loan subject of this action by assignment of mortgage,
executed by Mortgage Electronic Registration Systems, Inc. (“MERS”) three years after
the establishment of the trust and conveyance of the original and substituted loans.
22. The trustee must timely cure any defect as to a proper assignment or
correct proper conveyance of the loan instrument, as stated at Section 2.03(a) states:
It is understood and agreed that the obligation of the Depositor to cure
such breach or to so purchase or substitute for any Mortgage Loan as to
which such a breach has occurred and is continuing shall constitute the
sole remedy respecting such breach available to the
Certificateholders or the Trustee on behalf of the Certificateholders.
23. This is the sole remedy and failure’to so cure prevents the mortgage loan
from ever becoming an asset of the REMIC trust.
24. Finally, any substitution of mortgage loan must be effected within two (2)
years after the Start-up Day of this REMIC trust. This provision is found at PSA Section
2.04, stating in relevant part:
“in the case of a breach or Repurchase Event under the Assignment
Agreement Residential Funding shall have the option to substitute a
Qualified Substitute Mortgage Loan or Loans for such Mortgage Loan
if such substitution occurs within two years following the Closing Date.
25. The foregoing limitations demonstrate that Plaintiffs Assignment of
Mortgage, executed over two years after the REMIC trust came into existence (on
September 1, 2005), is untimely, ineffective and likely fabricated solely to prop up this
legal action against the Defendant.
26. The Assignment of Mortgage is also defective because MERS purports to
convey an asset in its corporate capacity and not as nominee for the original mortgagee
or any other subsequent party. MERS lacks authority to execute this instrument
because it never owned the promissory note or mortgage subject of this dispute.
27. Promissory Note is Not a Negotiable Instrument. Additionally, despite
that the promissory note bears an endorsement in blank it is NOT a negotiable
instrument as defined under Chapter 673 Florida Statutes. The instrument does not
meet the definition because it is inextricably combined with the mortgage and also
independently requires undertaking beyond just the payment of money.
28. The endorsement in blank does not entitle the Plaintiff or anyone else
holding this paper to the right of enforcement of either the promissory note or the
mortgage.
29. Plaintiff Lacks Standing. The Amended Complaint states at Paragraph
No. 4 that the “mortgage was subsequently assigned to “THE BANK OF NEW YORK
MELLON TRUST COMPANY, NATIONAL ASSOCIATION FKA THE BANK OF NEW
YORK TRUST COMPANY, N.A. AS SUCCESSOR TO JPMORGAN CHASE BANK,
N.A. AS TRUSTEE by virtue of an assignment recorded on July 28, 2008.
30. The Assignment of Mortgage (‘AOM") is defective because it purports to
assign the mortgage, by MERS, without identifying the trust or any beneficiaries.
31. The AOM is also executed by use of a law firm known to have extensively
used document fabrication tactics as a way to unlawfully obtain foreclosure judgments.
The signor of the AOM, Cheryl Samons, has been identified as having allowed the use
of her name and signature to be placed on assignment and other instruments. At best,
this AOM is suspect and lacking in authenticity.
32. Equally problematic is that the endorsement on the Allonge, assuming it is
authentic and free from a fraudulent origin, lacks the requisite specificity to convey the
mortgage loan to any specific trust or beneficiary of a trust.
33. The Plaintiff cannot establish its right of action based on an Allonge that
does not identify the trust or beneficiaries; or, with an AOM that names no specific trust
or beneficiary. This Court and the Defendants are left to simply assume this mortgage
was conveyed to the Plaintiff, which is not proof.
34. Plaintiff's right of action, as trustee for this specific mortgage pool is also
constrained by the limited authority described in the PSA — which was not met. The
Plaintiff cannot arbitrarily acquire assets for this pool without risking the loss of the
preferred tax status as a REMIC.
35. As.a consequence, any promissory note not meeting the strict conveyance
requirements pursuant to PSA Sections 2.01 and 2.03 is void as to the trust and the
trustee would have no authority to otherwise act upon any alleged default as the related
mortgage loan.
36. In this case the Plaintiff lacks both standing and legalcapacity to bring this
action against the Defendant because the mortgage loan subject of this dispute has
never been an asset of the trust identified in the style of this action. The promissory
note does not bear a complete chain of endorsements from the originating mortgagee to
the trust, as required by the PSA.
37. Defendant incorporates by reference all facts, authorities and legal
arguments raised within Defendant's Motion to Dismiss the Amended Complaint as if
fully stated here.
38. Guarantees and Credit Enhancements. To the extent the mortgage
loan subject of this action was deposited into the above-referenced trust repayment of
principal and interest under the specific mortgage loan subject of this action became
guaranteed and/or paid by others. That is, the certificate holders who are the
beneficiaries of the income stream flowing from trust assets continue to receive
payments tied to the mortgage loan sued upon because other persons and companies
have agreed to make the payments.
39. These payment assurances are known as “credit enhancements” and
ere devised as a way to induce investors into purchasing mortgage pool certificates.
Entities guaranteeing repayment of principal and interest under the subject mortgage
loan include, among others, the Residential Funding Corporation (as Master
servicer), JPMorgan Chase Bank, N.A. (as Trustee); and, Residential Asset
Mortgage Products, Inc., as Depositor.
40. Co-obligors are also described at Paragraph 9 of the Promissory Note,
which states:
If more than one person signs this Note, each person is fully and
personally obligated to keep all of the. promises made in this Note,
including the promise to pay the full amount owed. Any person who is a
guarantor, surety or endorser of this 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, is also
obligated to keep all of the promises made in this Note. The Note
Holder may enforce its rights under this Note against each 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.
’
-
At. Consequently, by specific language contained within the promissory note,
and also by operation of law under the sequence of transactions occurring post-closing
with securitization, the Defendant is not alone in having to meet the repayment
requirements under the note and mortgage.
42. To the extent Defendant does make a monthly payment under the
mortgage loan, the ultimate beneficiaries of the repayment stream under this specific
mortgage loan — theinvestors — still received their monthly payments by performance of
the guarantors, sureties, endorsers, servicers, insurers and the trustee of the legal entity
appointed over the securitization pool trust.
43. This is expressly stated in the Prospectus and Prospectus Supplement,
also known as the 424(b)(5), stating in relevant part:
For any month, if the master servicer receives a payment on a mortgage
loan that is less than the full scheduled payment, or if no payment is
received at all on a mortgage loan, the master servicer will advance
its own funds to cover that shortfall. However, the master servicer will
make an advance only if it determines that the advance will be
recoverable from future payments or collections on that mortgage loan.
~
44. Payments are also guaranteed pursuant to an insurance coverage under
Financial Guaranty Insurance policy described in the 424(b)(5) Prospectus Supplement
(Page S-10).
45. Therefore, to the extent the beneficiaries of the income stream under the
mortgage loan subject of this action have been paid, in part or in full, Defendant asserts
that no default has occurred as alleged by the Plaintiff.
46. To the extent any guarantor, surety, endorser, servicer, insurer or trustee
has advanced money under the specific promissory note and mortgage subject of this
action, the Defendant asserts entitlement to credit for these amounts as a set-off.
Advances are described at PSA Section 4.04.
47. Defendant further asserts such guarantors, sureties or endorsers that
have made advances under the mortgage loan already have an interest in the
disposition of this lawsuit because payments or advances made by the insurer results in
subrogation of contractual rights. See PSA.
48. Defendant, therefore, asserts that failure to bring these legal entities into
this action bars complete adjudication of the Plaintiffs claims. Defendant reserves the
right to bring an action for an accounting to determine the full amount of sums that may
be due and owing under the full set of transactions that bear upon Defendant's legal
obligation, if any, under the note and mortgage subject of this action.
49. Failure to Comply with Trust Statutes. Florida's Banking and ‘Trust
Registration and Regulation statutes are codified in Florida Statutes Chapters 658 and
§660. Section 658.12 Florida Statutes provides that:
(8) “Fiduciary” means a trustee; committee, guardian, custodian,
conservator, or other personal representative of a person, property,
or an estate; registrar or transfer agent of, or in connection with,
evidences of indebtedness of every kind and of stocks and bonds
and other securities; fiscal or financial agent; investment adviser;
receiver; trustee in bankruptcy; assignee for creditors; or holder of
any similar representative position or any other position of trust,
including a person acting in any or all the capacities and performing
any or all the functions enumerated in s. 660.34.
(20) “Trust business” means the business of acting as a fiduciary
when such business is conducted by a bank, state or federal
association, or a trust company, and also when conducted by any
other business organization as its sole or principal business.
(21) “Trust company” means any business organization, other
than a bank or state or federal association, which is authorized by
lawful authority to engage in trust business. A bank or state or
federal association conducting business pursuant to lawful
authority, which also by lawful authority has authority to engage in
trust business, is the functional equivalent of a trust company with
respect to performance of fiduciary services, and may assume
fiduciary duties under appointive instruments that establish fiduciary
relationships.
50. The Plaintiff in this action has not pled any facts describing or even
alleging it official legal capacity in relation to any entity it represents, as trustee or
otherwise. However, the style of the case suggests that the Plaintiff is acting as a
trustee for a Trust referred to as RAMP 2005RZ3. Therefore, the action against the
Defendant is being brought by a trust.
51. Defendant believes and therefore asserts based upon the information
provided that the Trust in not compliance with Fla. Stat. § 660.27, which requires it to
forward a security deposit with the Chief Financial Officer of Florida before transacting
any trust business in this state. Fla. Stat. § 660.27 stats in relevant part:
(1) Before transacting any trust business in this state, every trust
company and every state or national bank or state or federal
association having trust powers shall give satisfactory security by
the deposit or pledge of security of the kind or type provided in this
section having at all times a market value in an amount equal to 25
percent of the issued and outstanding capital stock of such trust
company, bank, or state or federal stock association or, in the case
of a federal mutual association, an equivalent amount determined
by the office, or the sum of $25,000, whichever is greater. However,
the value of the security deposited or pledged pursuant to the
provisions of this section shall not be required to exceed $500,000.
Any notes, mortgages, bonds, or other securities, other than shares
of stock, eligible for investment by a state bank, state association,
or state trust company, or eligible for investment by fiduciaries,
shall be accepted as satisfactory security for the purposes of this
section.
52. The Defendant also believes and therefore asserts that Plaintiff has also
failed to comply with Florida Statute §660.27(2)(a), which requires the Plaintiff to
provide to Florida's Chief Financial Officer the full legal name of the trust, its federal
employer identification number, principal place of business, amount of capital stock, and
amount of collateral required to be deposited by the trust.
53. Florida Statute §660.34(I) grants the Plaintiff and every trust company,
"the right and power to act, alone or jointly with any other person, in any and every
fiduciary capacity for or in connection with any and all fiduciary accounts of or pertaining
to any business organization or other person, and any government, governmental body
or other governmental entity or officer or public body politic, and to engage in and
conduct a general trust business."
54 Florida Statute §660.34(2) grants the Plaintiff and every trust company,
"all the rights, privileges, and immunities, and all the duties and obligations, appertaining
to any fiduciary capacity assigned to or assumed by it and to fiduciaries generally.”
55. Florida Statute §660.34(3) grants the Plaintiff and all other trust company,
"the right and the power to effectuate, exercise, carry out, and otherwise implement, in
any lawful manner, any and all its lawful duties, obligations, rights privileges and
immunities in connection with any fiduciary capacity assigned to or assumed by it and in
connection with the conduct of its trust business.
56. Having established the actions and activities that the Plaintiff may engage
in, the Defendant asserts that the Plaintiffs ability to so engage in such activities is
conditioned upon the Plaintiff complying with the other requirements contained within
the very same statute.
57. Plaintiff is transacting trust business in the State of Florida which includes,
but is not limited to the following: the acquiring, holding, and transferring mortgages on
property in Florida, receiving assignments of promissory notes, receiving payments from
Florida entities on mortgage notes, enforcing notes by filing and prosecuting this and
other foreclosure actions, foreclosing mortgages purchasing foreclosure properties at
judicial sales, and owing and selling properties acquired at judicial sales.
58. Because foreclosure is an equitable remedy, the Court should prevent the
Plaintiff from availing itself of the power and discretion of the court when the Plaintiff
comes to the Court with unclean hands and without complying with important laws
which are designed and intended to protect members of the public generally and this
Defendant in particular.
AFFIRMATIVE DEFENSES
{ FAILURE TO COMPLY WITH CONDITIONS PRECEDENT
59. Defendant incorporates by reference above Paragraph Nos. 3-10; 49-58;
as if fully stated here and asserts the defense that the Plaintiff has failed to comply with
all conditions precedent to bringing this action.
I. LACK OF STANDING
60. Defendant incorporates by reference above Paragraph Nos. 1-3; and 11-
48 as if fully stated here and assert the defense that Plaintiff lacks standing.
Wl. PAYMENT
Defendant incorporates by reference above Paragraph Nos. 11-48 as if fully stated here
and assert the defense of payment. There has been no default under the terms of the
promissory note and mortgage and the beneficiaries of repayment have been paid.
VV. FAILURE TO RATIFY COMMENCEMENT OF ACTION
61. The Plaintiff has failed to allege, factually establish or prove that the owner
of the mortgage loan and/or the trustee ever ratified commencement of this action.
Therefore, Defendant asserts the defense of failure of ratification of action.
Vv. FAILURE TO COMPLY WITH STATUTES REGULATING TRUSTS
62. Defendant incorporates by reference Paragraph Nos. 49-58 above, as if
fully stated here and assert the defense that the Plaintiff's action is barred for failure to
comply with statutes governing the activities of trusts.
Vi. FAILURE TO EXHAUST REMEDIES
63. Defendant incorporates by reference above Paragraph Nos. 11-48 as if
fully stated here and assert the defense of failure to exhaust Temedies.
Vil. SET-OFF
Defendant incorporates by reference above Paragraph Nos. 11-48 as if fully stated here
and assert the defense of set-off. To the extent the beneficiaries of repayment under
the promissory note and related mortgage have received payment from co-obligors,
insurers, guarantors or other parties, Defendant asserts the defense of entitlement to a
set-off against amounts found to be due and owing.
VIL. ASSUMPTION OF THE RISK
64. Defendant incorporates by reference above Paragraph Nos. 11-48 as if
fully stated here asserts the defense of assumption of risk. The original lender, the real
party in interest and the Plaintiff, to the extent it is the real party in interest, assumed the
risk associated with the acquisition, servicing, endorsement or insuring the mortgage
Joan subject of this action.
65. The Plaintiff, its predecessor(s) in interest and the unidentified real party in
interest, if any, (1) knew or should have known that the mortgage loan instruments
where never conveyed in a legally sufficient manner so as to transfer title to the Plaintiff,
(2) knew or should have known that mortgage loan transaction was designed to fail and
to cause a default by the borrowers; (3) knew or should have known that the appraisal
on Defendant's real property was over inflated and produced solely to meet the
approval requirements to make the loan. Defendant therefore asserts the defense of
assumption of the risk.
IX. COMPARATIVE NEGLIGENCE
66. Defendant incorporates by reference above Paragraph Nos. 11—48 as if
fully stated here and assert the defense of comparative negligence. . Plaintiff knew or
should have known, upon receipt and review of the subject mortgage loan documents
that this loan was infirm with defects and was not enforceable in the manner sought in
this action.
67. The Plaintiff, its predecessor(s) in interest and the unidentified real party in
interest, if any, (1) knew or should have known that the mortgage loan instruments
where never conveyed ina legally sufficient manner so as to transfer title to the trust or
to the Plaintiff; (2) knew or should have known that mortgage loan transaction was
designed to fail and to cause a default by the borrowers; (3) knew or should have known
that the appraisal on Defendant's real property was over inflated and produced solely to
eet the approval requirements to make the loan.
68. Defendant therefore asserts the defense of comparative negligence.
x. RATIFICATION OF LOAN ACQUISITION
69. Defendant incorporates by reference above Paragraph Nos. 11-48 as if
fully stated here.
70. - The Plaintiff, its predecessor(s) in interest and the unidentified real party in
interest, if any, (1) knew or should have known that the mortgage loan instruments
where never conveyed in a legally sufficient manner so as to transfer title to the trust or
to the Plaintiff; (2) knew or should have known that mortgage loan transaction was
designed to fail and to cause a default by the borrowers; (3) knew or should have known
that the appraisal on Defendant's real property was over inflated and produced solely to
meet the approval requirements to make the loan. Defendant therefore asserts the
defense of Ratification.
Xl. UNCLEAN HANDS
71. Defendant incorporates by reference above Paragraph Nos. 3-58 as if
fully stated here and assert the defense of Plaintiff's unclean hands.
Xl. FLA. STAT. § 865.09 STATUTORY BAR
72. While the Plaintiff in this action appears as a national bank, its actual
legal capacity is as a trustee for a trust implied in the style of the case, and the suit is
brought in a representative capacity for the benefit of unnamed Certificateholders. The
Amended Complaint has no facts whatsoever regarding the jurisdiction wherein the trust
was organized and no facts or documents showing that The Bank of New York Mellon
Trust Company is a trustee for this trust. The trust is not registered in Florida, and, as a
consequence of these matters there is no way to ascertain whether there has been
compliance with Fla. Stat. § 865.09, known as the Fictitious Name Act.
73. This statute requires registration with the State of Florida as a fictitious
entity. Fla. Stat. § 865.09(a) prohibits the Plaintiff from maintaining this action until it
has complied with the Florida Fictitious Name Act.
74. Plaintiffs failure to allege ultimate facts about its existence as a foreign
corporation inhibits determination of compliance with Fla. Stat. § 865.
75. The Plaintiff does not allege any facts of its existence as a corporation or
other legal entity duly organized in a jurisdiction recognized under Florida law. The only
reference to the legal entity bringing this action is found in the caption or style of the
case. The general rule is that the body of the complaint, and not the caption
determines who is a party to the actio! 3 The naming of an individual or entity in the
caption is not a sufficient basis to warrant inclusion in the action if the party is not
mentioned in the body of the complaint. Id.
76. Defendant, therefore, asserts the defense that Florida law bars
maintenance of this action for failure to comply with Fla. Stat. § 865.09.
XIll. FAILURE TO STATE A CLAIM
77." Defendant incorporates by reference above paragraph Nos. 2-48 and
each and every argument contained within his prior Motion to Dismiss the Amended
Complaint, as if fully stated here, and asserts the defense that the Plaintiff has failed to
allege each requisite element of its claim. The promissory note attached as an exhibit
to the Amended Complaint is not a negotiable instrument. As such, Plaintiff fails to state
a claim for which relief can be granted.
Demand for Jury Trial
78. Defendant demands a trial by Jury on all issues so triable.
WHEREFORE, the Defendant requests Judgment against the Plaintiff and in
favor of the Defendant as to all counts, awarding Defendant attorneys’ fees pursuant to
contract and under Fla. Stat. § 57.105(7) and forall such and further relief as this court
deems just and appropriate.
3 Altamonte Hitch and Trailer Service, Inc. v. U-Haul Co. of Eastern Florida, 498 So.2d 1346 (Fla. 5" DCA
1986).
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true and correct copy of the foregoing was sent by email
fife@penderlaw.com to Pendergast & Morgan, P.A., Rachelle-Marie Gentner, Esq.
C7 iVV
counsel for the Plaintiff, and to the parties on the attaehe List on: 15" day of
March, 2013. .
|
Dp
Jose arrion, Esq.
iOrida Bar No: 0975036
JOSE CARRION, P.A.
P.O. Béx 547996
Ox! ido, Florida 32854
(407) 8 98-3348
Attorney for Defendants
jose@josemcarrion.com
SERVICE LIST
Emily J. Hansen-Brown, Esq.
Taylor & Carls, P.A.
Attorney for Celebration Residential Homeowners Assoc., Inc.
ehansen@taylor-carls.com
Luis A. Gonzalez
708 Mulberry Avenue
Kissimmee, Florida 34747
John Doe N/K/A Luis Gonzalez
708 Mulberry Avenue
Kissimmee, Florida 34747
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IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO: 09-CA-006462-MF THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION FKA THE BANK OF NEW YORK’TRUST COMPANY, N.A. AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A. AS TRUSTEE FOR RAMP —s On, 2005RZ3, = rate = Plaintiff, Se = rene om 2 A vs. ondaie z Lm 22 4 an ERIC SANTIAGO, ET AL., Toe 205 Defendants. pcm on ANSWER Defendant Eric Santiago (“Defendant”), by and through the undersigned counsel, serves his answer Plaintiffs Amended Complaint stating as follows: Answer to Allegations of Counts | 4 admits the allegations of Paragraph Nos. 1, 2, and 6. Defendant Defendant admits allegations of Paragraph No. 17 in that Luis A. Gonzalez may claim some interest in the real property subject of this dispute, otherwise denied. 2 Defendant specifically denies that a promissory note and mortgage was executed as alleged in Paragraph Nos. 3. 3 Defendant denies the allegations of Paragraph Nos. 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 18, and demands strict proof. " 4 Defendant specifically denies the allegations of Paragraph Nos. 8 because neither the Plaintiff nor any real party in interest has met each and every condition precedent to bringing this legal action. 5 The Plaintiff has not served Defendant with a valid notice of default prior to acceleration and prior to bringing this action, as required pursuant to Paragraph No. 22 of the mortgage, which states: 22. Acceleration; Remedies. 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 paragraph 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 Borrower, by which the 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 proceeding 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 proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding. Lender shail be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys’ fees and costs of title evidence. 6 The Plaintiff has not complied with all the requirements pursuant to Pub.L. 110-343, 122 Stat. 3765, enacted October 3, 2008, known as Emergency Economic Stabilization Act of 2008 and Troubled Assets Recovery Program. This statute requires participating mortgage lenders and servicers to, inter alia, perform pre-foreclosure waterfall calculations analysis and mandates offering Defendant a loan modification, which the Plaintiff has not done; 7 The Plaintiff has not complied with all requirements pursuant to the Pooling and Servicing Agreement (‘PSA’)' and related governing documents of the REMIC trust shown in the style of this case, including without limitation, (a) applying to mortgage account all sums paid by or on behalf of Defendant pursuant to applicable credit enhancements, such as from overcollateralization, cross-collateralization, subordination of certain certificates, interest rate swap agreements, interest rate cap agreements, surety agreements and other insurances as described within the PSA, the 424B5 Prospectus and supporting exhibits,? (b) demanding Servicer compliance with PSA requirement to make advances in accordance with the governing trust documents of the mortgage pool; 8 The Plaintiff has not sought made demand for payment upon endorsers, guarantors or sureties associated with the promissory note subject of this action by sending a notice of acceleration and allowing 30 days to cure the default, pursuant to Paragraph No. 9 of the promissory note; 9 The Plaintiff has not joined indispensable parties to this action, such as the endorsers, guarantors or sureties associated with the promissory note subject of this action, as these are parties that have an interest in the subject matter of this dispute and in the real property subject of the foreclosure action; 10. The Plaintiff has not sought approval of all parties having a direct or collateral interest in the mortgage loan subject of this action by way of participation in any credit default swap agreements, collateralized debt obligations or re-securitizations. A copy of this document is found at http:/Awww:secinfo.com/d1 8Se2.zd.d.htm#1stPage 2 Such as PSA § 4.01-4.07 Defense Allegation 11. Origination. The original mortgagee under loan subject of this action is Mortgageit, Inc. as reflected by the copy of the promissory note and mortgage attached to Plaintiffs Amended Complaint. There is no allegation or other indication whatsoever that the original mortgagee ever transferred or sold this loan toany one specific entity or person. The following facts are asserted in defense. 12. The Trust. The trust shown in the style of this case is identified as RAMP 2005RZ3, a legal entity that came into existence on September 1, 2005 with the execution of the PSA. 13. The certificated trust is an investment vehicle organized to avoid taxation by its operation as a pass-through income stream which is recognized under federal law as Real Estate Mortgage Investment Conduit (“REMIC”). Investment income derived from the assets held by the trust passively move through this legal entity and to the fractional share owners of the pool assets. These fractional shares are represented as certificates. 14. This trust is organized under New York law as stated in the Pooling and Servicing Agreement (“PSA”), the main governing trust document. There, the PSA specifically expresses this jurisdiction as the choice of governing law. See PSA Article XI, Section 11.04, stating: This agreement and the Certificates shall be governed by and construed in accordance with the laws of the State of New York and ‘the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. 15.°* Mortgage Loan Conveyance Requirements. For the Plaintiff to. have any right of action pursuant to its authority as trustee, the mortgage loan must be an asset of this specific trust. For the trust to claim such ownership under New York law there must be strict compliance with the requirements set out in the Mortgage Loan Purchase Agreement and the PSA. 16. Transfer of the Loan. The PSA sets out the purchase and conveyance requirements for loan assets intended to be deposited into the mortgage pool for which the Plaintiff asserts it is a trustee. More specifically, the transfer of these assets is set out at Section 4 17. Article Il of the PSA, beginning at Section 2.01 describes these requirements. Without strict compliance to these requirements the mortgage loan never becomes an asset of this trust. 18. PSA Section 2.01states: (b) In connection with such assignment, and contemporaneously with the delivery of this Agreement, except as set forth in Section 2.01(c) below and subject to Section 2.01(d) below, the Depositor does hereby deliver to, and deposit with, the Trustee, or to and with one or more Custodians, as the duly appointed agent or agents of the Trustee for such purpose, the following documents or instruments (or copies thereof as permitted by this Section) with respect to each Mortgage Loan so assigned: (i) The original Mortgage Note, endorsed without recourse to the order of the Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it to. the Trustee, or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note; 19. The above subsection limits the types of loans that may become part of this mortgage pool. To the extent the Plaintiff has not complied with the requirements of Section 2.01 the mortgage loan never becomes an asset of this trust and thus would lack standing to seek enforcement in the above-styled action. 20. Furthermore, under repurchase obligations and substitution of loans, as defined at PSA Section 2.03, the Trustee is required to enforce the obligations of the Seller within 90 days after the date on which the Seller was notified of such missing document, defect or breach. 21. These provisions makes it impractical and highly suspect that the Plaintiff could acquire the mortgage loan subject of this action by assignment of mortgage, executed by Mortgage Electronic Registration Systems, Inc. (“MERS”) three years after the establishment of the trust and conveyance of the original and substituted loans. 22. The trustee must timely cure any defect as to a proper assignment or correct proper conveyance of the loan instrument, as stated at Section 2.03(a) states: It is understood and agreed that the obligation of the Depositor to cure such breach or to so purchase or substitute for any Mortgage Loan as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Certificateholders or the Trustee on behalf of the Certificateholders. 23. This is the sole remedy and failure’to so cure prevents the mortgage loan from ever becoming an asset of the REMIC trust. 24. Finally, any substitution of mortgage loan must be effected within two (2) years after the Start-up Day of this REMIC trust. This provision is found at PSA Section 2.04, stating in relevant part: “in the case of a breach or Repurchase Event under the Assignment Agreement Residential Funding shall have the option to substitute a Qualified Substitute Mortgage Loan or Loans for such Mortgage Loan if such substitution occurs within two years following the Closing Date. 25. The foregoing limitations demonstrate that Plaintiffs Assignment of Mortgage, executed over two years after the REMIC trust came into existence (on September 1, 2005), is untimely, ineffective and likely fabricated solely to prop up this legal action against the Defendant. 26. The Assignment of Mortgage is also defective because MERS purports to convey an asset in its corporate capacity and not as nominee for the original mortgagee or any other subsequent party. MERS lacks authority to execute this instrument because it never owned the promissory note or mortgage subject of this dispute. 27. Promissory Note is Not a Negotiable Instrument. Additionally, despite that the promissory note bears an endorsement in blank it is NOT a negotiable instrument as defined under Chapter 673 Florida Statutes. The instrument does not meet the definition because it is inextricably combined with the mortgage and also independently requires undertaking beyond just the payment of money. 28. The endorsement in blank does not entitle the Plaintiff or anyone else holding this paper to the right of enforcement of either the promissory note or the mortgage. 29. Plaintiff Lacks Standing. The Amended Complaint states at Paragraph No. 4 that the “mortgage was subsequently assigned to “THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION FKA THE BANK OF NEW YORK TRUST COMPANY, N.A. AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A. AS TRUSTEE by virtue of an assignment recorded on July 28, 2008. 30. The Assignment of Mortgage (‘AOM") is defective because it purports to assign the mortgage, by MERS, without identifying the trust or any beneficiaries. 31. The AOM is also executed by use of a law firm known to have extensively used document fabrication tactics as a way to unlawfully obtain foreclosure judgments. The signor of the AOM, Cheryl Samons, has been identified as having allowed the use of her name and signature to be placed on assignment and other instruments. At best, this AOM is suspect and lacking in authenticity. 32. Equally problematic is that the endorsement on the Allonge, assuming it is authentic and free from a fraudulent origin, lacks the requisite specificity to convey the mortgage loan to any specific trust or beneficiary of a trust. 33. The Plaintiff cannot establish its right of action based on an Allonge that does not identify the trust or beneficiaries; or, with an AOM that names no specific trust or beneficiary. This Court and the Defendants are left to simply assume this mortgage was conveyed to the Plaintiff, which is not proof. 34. Plaintiff's right of action, as trustee for this specific mortgage pool is also constrained by the limited authority described in the PSA — which was not met. The Plaintiff cannot arbitrarily acquire assets for this pool without risking the loss of the preferred tax status as a REMIC. 35. As.a consequence, any promissory note not meeting the strict conveyance requirements pursuant to PSA Sections 2.01 and 2.03 is void as to the trust and the trustee would have no authority to otherwise act upon any alleged default as the related mortgage loan. 36. In this case the Plaintiff lacks both standing and legalcapacity to bring this action against the Defendant because the mortgage loan subject of this dispute has never been an asset of the trust identified in the style of this action. The promissory note does not bear a complete chain of endorsements from the originating mortgagee to the trust, as required by the PSA. 37. Defendant incorporates by reference all facts, authorities and legal arguments raised within Defendant's Motion to Dismiss the Amended Complaint as if fully stated here. 38. Guarantees and Credit Enhancements. To the extent the mortgage loan subject of this action was deposited into the above-referenced trust repayment of principal and interest under the specific mortgage loan subject of this action became guaranteed and/or paid by others. That is, the certificate holders who are the beneficiaries of the income stream flowing from trust assets continue to receive payments tied to the mortgage loan sued upon because other persons and companies have agreed to make the payments. 39. These payment assurances are known as “credit enhancements” and ere devised as a way to induce investors into purchasing mortgage pool certificates. Entities guaranteeing repayment of principal and interest under the subject mortgage loan include, among others, the Residential Funding Corporation (as Master servicer), JPMorgan Chase Bank, N.A. (as Trustee); and, Residential Asset Mortgage Products, Inc., as Depositor. 40. Co-obligors are also described at Paragraph 9 of the Promissory Note, which states: If more than one person signs this Note, each person is fully and personally obligated to keep all of the. promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this 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, is also obligated to keep all of the promises made in this Note. The Note Holder may enforce its rights under this Note against each 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. ’ - At. Consequently, by specific language contained within the promissory note, and also by operation of law under the sequence of transactions occurring post-closing with securitization, the Defendant is not alone in having to meet the repayment requirements under the note and mortgage. 42. To the extent Defendant does make a monthly payment under the mortgage loan, the ultimate beneficiaries of the repayment stream under this specific mortgage loan — theinvestors — still received their monthly payments by performance of the guarantors, sureties, endorsers, servicers, insurers and the trustee of the legal entity appointed over the securitization pool trust. 43. This is expressly stated in the Prospectus and Prospectus Supplement, also known as the 424(b)(5), stating in relevant part: For any month, if the master servicer receives a payment on a mortgage loan that is less than the full scheduled payment, or if no payment is received at all on a mortgage loan, the master servicer will advance its own funds to cover that shortfall. However, the master servicer will make an advance only if it determines that the advance will be recoverable from future payments or collections on that mortgage loan. ~ 44. Payments are also guaranteed pursuant to an insurance coverage under Financial Guaranty Insurance policy described in the 424(b)(5) Prospectus Supplement (Page S-10). 45. Therefore, to the extent the beneficiaries of the income stream under the mortgage loan subject of this action have been paid, in part or in full, Defendant asserts that no default has occurred as alleged by the Plaintiff. 46. To the extent any guarantor, surety, endorser, servicer, insurer or trustee has advanced money under the specific promissory note and mortgage subject of this action, the Defendant asserts entitlement to credit for these amounts as a set-off. Advances are described at PSA Section 4.04. 47. Defendant further asserts such guarantors, sureties or endorsers that have made advances under the mortgage loan already have an interest in the disposition of this lawsuit because payments or advances made by the insurer results in subrogation of contractual rights. See PSA. 48. Defendant, therefore, asserts that failure to bring these legal entities into this action bars complete adjudication of the Plaintiffs claims. Defendant reserves the right to bring an action for an accounting to determine the full amount of sums that may be due and owing under the full set of transactions that bear upon Defendant's legal obligation, if any, under the note and mortgage subject of this action. 49. Failure to Comply with Trust Statutes. Florida's Banking and ‘Trust Registration and Regulation statutes are codified in Florida Statutes Chapters 658 and §660. Section 658.12 Florida Statutes provides that: (8) “Fiduciary” means a trustee; committee, guardian, custodian, conservator, or other personal representative of a person, property, or an estate; registrar or transfer agent of, or in connection with, evidences of indebtedness of every kind and of stocks and bonds and other securities; fiscal or financial agent; investment adviser; receiver; trustee in bankruptcy; assignee for creditors; or holder of any similar representative position or any other position of trust, including a person acting in any or all the capacities and performing any or all the functions enumerated in s. 660.34. (20) “Trust business” means the business of acting as a fiduciary when such business is conducted by a bank, state or federal association, or a trust company, and also when conducted by any other business organization as its sole or principal business. (21) “Trust company” means any business organization, other than a bank or state or federal association, which is authorized by lawful authority to engage in trust business. A bank or state or federal association conducting business pursuant to lawful authority, which also by lawful authority has authority to engage in trust business, is the functional equivalent of a trust company with respect to performance of fiduciary services, and may assume fiduciary duties under appointive instruments that establish fiduciary relationships. 50. The Plaintiff in this action has not pled any facts describing or even alleging it official legal capacity in relation to any entity it represents, as trustee or otherwise. However, the style of the case suggests that the Plaintiff is acting as a trustee for a Trust referred to as RAMP 2005RZ3. Therefore, the action against the Defendant is being brought by a trust. 51. Defendant believes and therefore asserts based upon the information provided that the Trust in not compliance with Fla. Stat. § 660.27, which requires it to forward a security deposit with the Chief Financial Officer of Florida before transacting any trust business in this state. Fla. Stat. § 660.27 stats in relevant part: (1) Before transacting any trust business in this state, every trust company and every state or national bank or state or federal association having trust powers shall give satisfactory security by the deposit or pledge of security of the kind or type provided in this section having at all times a market value in an amount equal to 25 percent of the issued and outstanding capital stock of such trust company, bank, or state or federal stock association or, in the case of a federal mutual association, an equivalent amount determined by the office, or the sum of $25,000, whichever is greater. However, the value of the security deposited or pledged pursuant to the provisions of this section shall not be required to exceed $500,000. Any notes, mortgages, bonds, or other securities, other than shares of stock, eligible for investment by a state bank, state association, or state trust company, or eligible for investment by fiduciaries, shall be accepted as satisfactory security for the purposes of this section. 52. The Defendant also believes and therefore asserts that Plaintiff has also failed to comply with Florida Statute §660.27(2)(a), which requires the Plaintiff to provide to Florida's Chief Financial Officer the full legal name of the trust, its federal employer identification number, principal place of business, amount of capital stock, and amount of collateral required to be deposited by the trust. 53. Florida Statute §660.34(I) grants the Plaintiff and every trust company, "the right and power to act, alone or jointly with any other person, in any and every fiduciary capacity for or in connection with any and all fiduciary accounts of or pertaining to any business organization or other person, and any government, governmental body or other governmental entity or officer or public body politic, and to engage in and conduct a general trust business." 54 Florida Statute §660.34(2) grants the Plaintiff and every trust company, "all the rights, privileges, and immunities, and all the duties and obligations, appertaining to any fiduciary capacity assigned to or assumed by it and to fiduciaries generally.” 55. Florida Statute §660.34(3) grants the Plaintiff and all other trust company, "the right and the power to effectuate, exercise, carry out, and otherwise implement, in any lawful manner, any and all its lawful duties, obligations, rights privileges and immunities in connection with any fiduciary capacity assigned to or assumed by it and in connection with the conduct of its trust business. 56. Having established the actions and activities that the Plaintiff may engage in, the Defendant asserts that the Plaintiffs ability to so engage in such activities is conditioned upon the Plaintiff complying with the other requirements contained within the very same statute. 57. Plaintiff is transacting trust business in the State of Florida which includes, but is not limited to the following: the acquiring, holding, and transferring mortgages on property in Florida, receiving assignments of promissory notes, receiving payments from Florida entities on mortgage notes, enforcing notes by filing and prosecuting this and other foreclosure actions, foreclosing mortgages purchasing foreclosure properties at judicial sales, and owing and selling properties acquired at judicial sales. 58. Because foreclosure is an equitable remedy, the Court should prevent the Plaintiff from availing itself of the power and discretion of the court when the Plaintiff comes to the Court with unclean hands and without complying with important laws which are designed and intended to protect members of the public generally and this Defendant in particular. AFFIRMATIVE DEFENSES { FAILURE TO COMPLY WITH CONDITIONS PRECEDENT 59. Defendant incorporates by reference above Paragraph Nos. 3-10; 49-58; as if fully stated here and asserts the defense that the Plaintiff has failed to comply with all conditions precedent to bringing this action. I. LACK OF STANDING 60. Defendant incorporates by reference above Paragraph Nos. 1-3; and 11- 48 as if fully stated here and assert the defense that Plaintiff lacks standing. Wl. PAYMENT Defendant incorporates by reference above Paragraph Nos. 11-48 as if fully stated here and assert the defense of payment. There has been no default under the terms of the promissory note and mortgage and the beneficiaries of repayment have been paid. VV. FAILURE TO RATIFY COMMENCEMENT OF ACTION 61. The Plaintiff has failed to allege, factually establish or prove that the owner of the mortgage loan and/or the trustee ever ratified commencement of this action. Therefore, Defendant asserts the defense of failure of ratification of action. Vv. FAILURE TO COMPLY WITH STATUTES REGULATING TRUSTS 62. Defendant incorporates by reference Paragraph Nos. 49-58 above, as if fully stated here and assert the defense that the Plaintiff's action is barred for failure to comply with statutes governing the activities of trusts. Vi. FAILURE TO EXHAUST REMEDIES 63. Defendant incorporates by reference above Paragraph Nos. 11-48 as if fully stated here and assert the defense of failure to exhaust Temedies. Vil. SET-OFF Defendant incorporates by reference above Paragraph Nos. 11-48 as if fully stated here and assert the defense of set-off. To the extent the beneficiaries of repayment under the promissory note and related mortgage have received payment from co-obligors, insurers, guarantors or other parties, Defendant asserts the defense of entitlement to a set-off against amounts found to be due and owing. VIL. ASSUMPTION OF THE RISK 64. Defendant incorporates by reference above Paragraph Nos. 11-48 as if fully stated here asserts the defense of assumption of risk. The original lender, the real party in interest and the Plaintiff, to the extent it is the real party in interest, assumed the risk associated with the acquisition, servicing, endorsement or insuring the mortgage Joan subject of this action. 65. The Plaintiff, its predecessor(s) in interest and the unidentified real party in interest, if any, (1) knew or should have known that the mortgage loan instruments where never conveyed in a legally sufficient manner so as to transfer title to the Plaintiff, (2) knew or should have known that mortgage loan transaction was designed to fail and to cause a default by the borrowers; (3) knew or should have known that the appraisal on Defendant's real property was over inflated and produced solely to meet the approval requirements to make the loan. Defendant therefore asserts the defense of assumption of the risk. IX. COMPARATIVE NEGLIGENCE 66. Defendant incorporates by reference above Paragraph Nos. 11—48 as if fully stated here and assert the defense of comparative negligence. . Plaintiff knew or should have known, upon receipt and review of the subject mortgage loan documents that this loan was infirm with defects and was not enforceable in the manner sought in this action. 67. The Plaintiff, its predecessor(s) in interest and the unidentified real party in interest, if any, (1) knew or should have known that the mortgage loan instruments where never conveyed ina legally sufficient manner so as to transfer title to the trust or to the Plaintiff; (2) knew or should have known that mortgage loan transaction was designed to fail and to cause a default by the borrowers; (3) knew or should have known that the appraisal on Defendant's real property was over inflated and produced solely to eet the approval requirements to make the loan. 68. Defendant therefore asserts the defense of comparative negligence. x. RATIFICATION OF LOAN ACQUISITION 69. Defendant incorporates by reference above Paragraph Nos. 11-48 as if fully stated here. 70. - The Plaintiff, its predecessor(s) in interest and the unidentified real party in interest, if any, (1) knew or should have known that the mortgage loan instruments where never conveyed in a legally sufficient manner so as to transfer title to the trust or to the Plaintiff; (2) knew or should have known that mortgage loan transaction was designed to fail and to cause a default by the borrowers; (3) knew or should have known that the appraisal on Defendant's real property was over inflated and produced solely to meet the approval requirements to make the loan. Defendant therefore asserts the defense of Ratification. Xl. UNCLEAN HANDS 71. Defendant incorporates by reference above Paragraph Nos. 3-58 as if fully stated here and assert the defense of Plaintiff's unclean hands. Xl. FLA. STAT. § 865.09 STATUTORY BAR 72. While the Plaintiff in this action appears as a national bank, its actual legal capacity is as a trustee for a trust implied in the style of the case, and the suit is brought in a representative capacity for the benefit of unnamed Certificateholders. The Amended Complaint has no facts whatsoever regarding the jurisdiction wherein the trust was organized and no facts or documents showing that The Bank of New York Mellon Trust Company is a trustee for this trust. The trust is not registered in Florida, and, as a consequence of these matters there is no way to ascertain whether there has been compliance with Fla. Stat. § 865.09, known as the Fictitious Name Act. 73. This statute requires registration with the State of Florida as a fictitious entity. Fla. Stat. § 865.09(a) prohibits the Plaintiff from maintaining this action until it has complied with the Florida Fictitious Name Act. 74. Plaintiffs failure to allege ultimate facts about its existence as a foreign corporation inhibits determination of compliance with Fla. Stat. § 865. 75. The Plaintiff does not allege any facts of its existence as a corporation or other legal entity duly organized in a jurisdiction recognized under Florida law. The only reference to the legal entity bringing this action is found in the caption or style of the case. The general rule is that the body of the complaint, and not the caption determines who is a party to the actio! 3 The naming of an individual or entity in the caption is not a sufficient basis to warrant inclusion in the action if the party is not mentioned in the body of the complaint. Id. 76. Defendant, therefore, asserts the defense that Florida law bars maintenance of this action for failure to comply with Fla. Stat. § 865.09. XIll. FAILURE TO STATE A CLAIM 77." Defendant incorporates by reference above paragraph Nos. 2-48 and each and every argument contained within his prior Motion to Dismiss the Amended Complaint, as if fully stated here, and asserts the defense that the Plaintiff has failed to allege each requisite element of its claim. The promissory note attached as an exhibit to the Amended Complaint is not a negotiable instrument. As such, Plaintiff fails to state a claim for which relief can be granted. Demand for Jury Trial 78. Defendant demands a trial by Jury on all issues so triable. WHEREFORE, the Defendant requests Judgment against the Plaintiff and in favor of the Defendant as to all counts, awarding Defendant attorneys’ fees pursuant to contract and under Fla. Stat. § 57.105(7) and forall such and further relief as this court deems just and appropriate. 3 Altamonte Hitch and Trailer Service, Inc. v. U-Haul Co. of Eastern Florida, 498 So.2d 1346 (Fla. 5" DCA 1986). CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing was sent by email fife@penderlaw.com to Pendergast & Morgan, P.A., Rachelle-Marie Gentner, Esq. C7 iVV counsel for the Plaintiff, and to the parties on the attaehe List on: 15" day of March, 2013. . | Dp Jose arrion, Esq. iOrida Bar No: 0975036 JOSE CARRION, P.A. P.O. Béx 547996 Ox! ido, Florida 32854 (407) 8 98-3348 Attorney for Defendants jose@josemcarrion.com SERVICE LIST Emily J. Hansen-Brown, Esq. Taylor & Carls, P.A. Attorney for Celebration Residential Homeowners Assoc., Inc. ehansen@taylor-carls.com Luis A. Gonzalez 708 Mulberry Avenue Kissimmee, Florida 34747 John Doe N/K/A Luis Gonzalez 708 Mulberry Avenue Kissimmee, Florida 34747