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IN THE CIRCUIT COURT OF THE TWENTIETH
JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA
CIVIL DIVISION
TIERONE BANK,
Plaintiff(s)
Case No.: 07-CA-018430
* FILED
ANDREA LYNN ROLF, et al., MAR 172 2°72
CHARLIE GREEN, CLERK
CIRCUIT/COUNTY COURTS
Defendant(s) BY. D.C.
/ ee
DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM
TO MORTGAGE FORECLOSURE COMPLAINT
Now comes Defendant, ANDREA ROLF, by and through the undersigned
counsel, and for her answer states:
1. Defendant is without knowledge, therefore DENIED.
2. Defendant ADMITS to being the record owners of the subject property, but
DENIES that such property is subject to foreclosure by the Plaintiff.
3. Defendant is without knowledge, therefore DENIED.
4. Defendant admits to executing a Mortgage and Mortgage Note. However,
Defendant DENIES for want of knowledge all other statements contained in
paragraph 4 of Plaintiff's Complaint.
5. Defendant is without knowledge, therefore DENIED.
6. Defendant is without knowledge, therefore DENIED.
7. Defendant is without knowledge, therefore DENIED.
8. Defendant is without knowledge, therefore DENIED.
9. Defendant is without knowledge, therefore DENIED.10.
27.
Defendant ADMITS that Plaintiff has retained legal representation, but is
unaware of the fee arrangement between the Plaintiff and their attorney.
Defendant DENIES all other statements made in paragraph 10 due to lack of
knowledge.
ADMITTED.
Defendant is without knowledge, therefore DENIED.
ADMITTED, for jurisdictional purposes only.
ADMITTED, for jurisdictional purposes only.
DENIED, for reasons set forth in Affirmative Defenses, Counterclaims and
Crossclaims located below.
Defendant is without knowledge, therefore DENIED.
ADMITTED, for jurisdictional purposes only.
ADMITTED, for jurisdictional purposes only.
Defendant is without knowledge, therefore DENIED.
Defendant is without knowledge, therefore DENIED.
Defendant is without knowledge, therefore DENIED.
Defendant is without knowledge, therefore DENIED.
AFFIRMATIVE DEFENSES
Defendant hereby incorporates paragraphs 1-22 as if fully plead herein.
Plaintiff is barred from recovery based on the doctrine of unclean hands.
Plaintiff engaged in predatory and deceptive lending practices in violation of
FDUTPA (see Defendant’s Counterclaim below) and is barred from recovery.
Plaintiff breached its fiduciary duty to the Defendant and is estopped from
recovery.
Plaintiff's claims are barred by the wrongful acts of its employees or agents.WHEREFORE, Defendant, ANDREA ROLF, prays for relief as set forth below
together with such further relief as this Honorable Court deems just:
28.
29.
30.
31.
32.
33.
Actual damages
Prejudgment interest
Declaratory judgment
Injunctive relief
Rescission
Attorney’s fees and costs pursuant to Florida Statutes § 501.2105
peaogs
DEFENDANT’S COUNTERCLAIM
FACTS
On or about early September 2005, Defendant, ANDREA ROLF, sought the
counsel of Transland Financial Services (hereinafter “Transland”), a retail
mortgage brokerage, acting as an agent on behalf of the Plaintiff, TierOne Bank
(hereinafter “TierOne”).
On or about September 23, 2005 Defendant, ANDREA ROLF, applied for a
construction Joan to build a single-family residence located in Cape Coral,
Florida.
Transland Financial Services, on behalf of TierOne, took the application and
advised the Defendant that the construction progress would be monitored and
“draws” on this loan would not be awarded without the consent of the Defendant,
ANDREA ROLF.
Defendant, ANDREA ROLF, feeling confident in the abilities of Transland and
TierOne, accepted the loan and awaited the construction of the home by R. Fry
Builders, Inc. (hereinafter “Fry”).
During the closing of said loan, Defendant believes that many disclosures and
documents were signed and notarized at a later time when Defendant was not
present.
Defendant further claims that many documents were “forged” signatures,
including the Notice of Commencement (attached as Exhibit A). This Notice
indicates a signature notarized in the State of Florida on a date when Ms. Rolf was
located in the State of California.
COUNT I - VIOLATION OF FDUTPA
(As against TierOne/Counterclaim Defendant, Fry Builders/Crossclaim Defendant)34,
35.
36.
37.
38.
39.
40.
4l.
42.
43.
44.
45.
46.
Defendant hereby incorporates paragraphs 27-33 as if fully plead herein.
This is an action for damages, which exceed $15,000 exclusive of interest, costs,
and attorney’s fees, and for injunctive relief.
Defendant is a consumer within the meaning of the Florida Deceptive and Unfair
Trade Practices Act (“FDUTPA”).
Plaintiff, TierOne (“the lender”) and Fry Builders (“the builder”) has conducted
trade or commerce with the Defendant within the meaning of FDUTPA.
In the conduct of the lender and builder’s trade or commerce, TierOne and Fry
Builders have engaged in unconscionable acts or practices and unfair or deceptive
practices unlawful within the meaning of FDUTPA.
The lender has violated FDUTPA by failing to monitor the progress of
construction and issuing payments to the builder without the consent of the
Defendant/borrower, ANDREA ROLF.
The lender and/or builder have violated FDUTPA by allegedly forging signatures
and having documents notarized when the notary was not present at the signing.
The lender and builder’s unconscionable acts or practices and unfair or deceptive
acts or practices offend public policy.
The lender and builder’s unconscionable acts or practices, and unfair or deceptive
acts or practices are immoral, unethical, oppressive, unscrupulous, or substantially
injurious to consumers, including the Defendant who was damaged thereby.
The lender and builder’s unconscionable acts or practices and unfair or deceptive
acts or practices involve false misrepresentations, express or implied, made to
Defendant concerning material facts.
Defendant, acting reasonably under the circumstances, relied on the lender and
builder’s misrepresentations concerning the loan and construction of the residence
and was misled. But for these misrepresentations, Defendant would not have
bound herself to the loan or the construction project.
The acts of TierOne and Fry Builders as described herein are willful, wanton, and
in conscious disregard of the Defendant’s rights.
Defendant, ANDREA ROLF, is entitled to an injunction against TierOne,
prohibiting Plaintiff from enforcing its rights to foreclose on the Defendant’s
home for violation of law alleged herein.47.
Defendant is entitled to a declaratory judgment that the acts or practices alleged
violate FDUTPA.
WHEREFORE, Defendant, ANDREA ROLF, prays for relief as set forth below
together with such further relief as this Honorable Court deems just:
48.
49.
50.
51.
52.
53.
54.
55.
a. Actual damages
b. Prejudgment interest
c Declaratory judgment
d. Injunctive relief
e. Rescission
f.
Attorney’s fees and costs pursuant to Florida Statutes § 501.2105
COUNT II - BREACH OF FIDUCIARY DUTY
(As against TierOne and Fry Builders)
Defendant hereby incorporates paragraphs 27-47 as if fully plead herein.
This is an action for damages, which exceed $15,000 exclusive of interest, costs,
and attorney’s fees, and for injunctive relief.
TierOne (“the lender”) assumed the duty of closing a real estate transaction where
the Defendant was not represented by an attorney at law. The lender acted as an
agent for the Defendant and in such capacity was acting in a fiduciary
relationship.
Fry Builders (“the builder”) assumed the duty of constructing a single-family
residence where the builder would take “draws” from Defendant’s line of credit.
The builder took these draws and made material changes to the construction
specifications without the consent of the owner.
As a result, the lender and builder owed fiduciary duties to the Defendant,
whereby the Defendant reposed trust and confidence in them, who undertook such
trust and assumed the fiduciary duty by closing the loan and constructing the
home.
TierOne breached its duties to the Defendant by failing to properly monitor the
construction progress and issuing payments to the builder without the consent of
the Defendant.
Defendant suffered damages resulting from said breaches.
The acts of the lender and the builder described herein were willful, wanton, and
in conscious disregard of Defendant's rights.WHEREFORE, Defendant, ANDREA ROLF, prays for relief as set forth below
together with such further relief as this Honorable Court deems just:
56.
57.
58.
59.
60.
61.
62.
63.
a. Actual damages
b. Consequential damages
c. Prejudgment interest
COUNT Ill — INTENTIONAL MISREPRESENTATION
(As against TierOne and Fry Builders)
Defendant hereby incorporates paragraphs 27-55 as if fully plead herein.
This is an action for damages, which exceed $15,000 exclusive of interest, costs,
and attorney’s fees.
TierOne made false statements by concerning material terms of the construction
loan. Fry Builder made false statements concerning material terms of the
construction of the subject property.
But for the misrepresentation of material terms, the construction never would
have begun, and Defendant would not have bound herself to the loan.
TierOne and Fry Builders knew or should have known the representations were
false.
TierOne and Fry Builders intended the representations to induce Defendant to act
thereon.
Defendant suffered damages in justifiable reliance on the representations.
The acts of TierOne and Fry Builders as described herein are willful, wanton, and
in conscious disregard of the Defendant’s rights.
WHEREFORE, the Defendant prays for relief as set forth below together with
such further relief as this Court deems just:
a. Actual damages; and
b. Prejudgment InterestDated: March 12, 2008.
EL LE
Brian-David Lit, Esq.
Law Offices of Joseph F.
Pippen, Jr. and Associates
10225 Ulmerton Rd. #11
Largo, FL 33711
(727) 586-3306
Florida Bar No. 10554
Attorney for Defendant
CERTIFICATE OF SERVICE
THEREBY CERTIFY that the original of the foregoing DEFENDANT’S ANSWER,
AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO MORTGAGE FORECLOSURE
COMPLAINT has been furnished to the Clerk of Court and a copy to the Plaintiff's
Attorney by mail delivery, on this 12" day of March, 2008 before 5:00 pm.
Er jr
Brian-David Lit, Esq.
Law Offices of Joseph F.
Pippen, Jr. and Associates
10225 Ulmerton Rd. #11
Largo, FL 33711
(727) 586-3306
Florida Bar No. 10554
Attorney for Defendant496-4 = TTQ:d90d NaddId £ 301450 MO1:dI ‘x84 -WSP £8 BaGe-92-834
INSTR # 2005000186398, Doc Type NOC, Pages 1, Recorded 12/28/2005 at 08:44 AM,
Charlie Green, Lee County Clerk of Cireuit Court, Rec. Fea $10.00 Deputy
Clerk DSHAW
(239) 772-2378 ~
7 NOTICE OF COMMENCEMENT = -
* Comore . Sw 5 22F
The Undersigned hereby gives notice that improvements will be made to certain real property, and in accordance with
section 713.13 of the Fiorida Stalates, the following information is provided in this NOTICE OF .
Legal descrigtion of property Onchude Struct Addroes, Wareabsl) 141K Nu UT? St. Lee Cosh SuBpw. ,
AEE
* 1 4 AS RECORDED 1A PLAT BOOK: | 2,
Sree 8 04-4 a3 03-9395). Quio, Wt THE PuBne Feces OF CEE cour,
General description of improvements Setune\\ consteuc ioc
Owner ___ Anadces Bott
Address (RAGS Fisid Bases j- Heckiagins Geach Co. Sate __
Owner's Interest in site of the inprovement_ FEE. THLE
Fee Sinple Title holder (7 other than ovmer} NJ A
tame NIA
Address = N/A
Contractor HONC MARINE CONTRACTING, INC.
Address: SAE EA TO Ey SUT B, CAPE CORAL FL S05
Surety loo Fe
Address ‘Amount of bond $
‘Any person saaking loan for the construction ofthe inapravements:
Newe —Tearslanst Beencial
‘Addross, 1S) :
perenne oP end by ORI pe re moro be oc ay Sed
$2 proved by Seation 77243¢7KeHT- lortda Staten,
Name
Address
in addition to hinisoll or herself, owner designates:
tp raccive © Copy of the Llanor’s Notice un provided ta Section 71RAS(1\@), Florida Statuton.
Expleation date of Wotice of Commencement (fhe expiraiion date is one year from the late of recording unless a
a different date is specified).
sntgeviemmntvnnte 13° ont Dusan sone .
‘produced, Nye as identification.
td ‘ e6rZL 80 9 484
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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA CIVIL DIVISION TIERONE BANK, Plaintiff(s) Case No.: 07-CA-018430 * FILED ANDREA LYNN ROLF, et al., MAR 172 2°72 CHARLIE GREEN, CLERK CIRCUIT/COUNTY COURTS Defendant(s) BY. D.C. / ee DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO MORTGAGE FORECLOSURE COMPLAINT Now comes Defendant, ANDREA ROLF, by and through the undersigned counsel, and for her answer states: 1. Defendant is without knowledge, therefore DENIED. 2. Defendant ADMITS to being the record owners of the subject property, but DENIES that such property is subject to foreclosure by the Plaintiff. 3. Defendant is without knowledge, therefore DENIED. 4. Defendant admits to executing a Mortgage and Mortgage Note. However, Defendant DENIES for want of knowledge all other statements contained in paragraph 4 of Plaintiff's Complaint. 5. Defendant is without knowledge, therefore DENIED. 6. Defendant is without knowledge, therefore DENIED. 7. Defendant is without knowledge, therefore DENIED. 8. Defendant is without knowledge, therefore DENIED. 9. Defendant is without knowledge, therefore DENIED.10. 27. Defendant ADMITS that Plaintiff has retained legal representation, but is unaware of the fee arrangement between the Plaintiff and their attorney. Defendant DENIES all other statements made in paragraph 10 due to lack of knowledge. ADMITTED. Defendant is without knowledge, therefore DENIED. ADMITTED, for jurisdictional purposes only. ADMITTED, for jurisdictional purposes only. DENIED, for reasons set forth in Affirmative Defenses, Counterclaims and Crossclaims located below. Defendant is without knowledge, therefore DENIED. ADMITTED, for jurisdictional purposes only. ADMITTED, for jurisdictional purposes only. Defendant is without knowledge, therefore DENIED. Defendant is without knowledge, therefore DENIED. Defendant is without knowledge, therefore DENIED. Defendant is without knowledge, therefore DENIED. AFFIRMATIVE DEFENSES Defendant hereby incorporates paragraphs 1-22 as if fully plead herein. Plaintiff is barred from recovery based on the doctrine of unclean hands. Plaintiff engaged in predatory and deceptive lending practices in violation of FDUTPA (see Defendant’s Counterclaim below) and is barred from recovery. Plaintiff breached its fiduciary duty to the Defendant and is estopped from recovery. Plaintiff's claims are barred by the wrongful acts of its employees or agents.WHEREFORE, Defendant, ANDREA ROLF, prays for relief as set forth below together with such further relief as this Honorable Court deems just: 28. 29. 30. 31. 32. 33. Actual damages Prejudgment interest Declaratory judgment Injunctive relief Rescission Attorney’s fees and costs pursuant to Florida Statutes § 501.2105 peaogs DEFENDANT’S COUNTERCLAIM FACTS On or about early September 2005, Defendant, ANDREA ROLF, sought the counsel of Transland Financial Services (hereinafter “Transland”), a retail mortgage brokerage, acting as an agent on behalf of the Plaintiff, TierOne Bank (hereinafter “TierOne”). On or about September 23, 2005 Defendant, ANDREA ROLF, applied for a construction Joan to build a single-family residence located in Cape Coral, Florida. Transland Financial Services, on behalf of TierOne, took the application and advised the Defendant that the construction progress would be monitored and “draws” on this loan would not be awarded without the consent of the Defendant, ANDREA ROLF. Defendant, ANDREA ROLF, feeling confident in the abilities of Transland and TierOne, accepted the loan and awaited the construction of the home by R. Fry Builders, Inc. (hereinafter “Fry”). During the closing of said loan, Defendant believes that many disclosures and documents were signed and notarized at a later time when Defendant was not present. Defendant further claims that many documents were “forged” signatures, including the Notice of Commencement (attached as Exhibit A). This Notice indicates a signature notarized in the State of Florida on a date when Ms. Rolf was located in the State of California. COUNT I - VIOLATION OF FDUTPA (As against TierOne/Counterclaim Defendant, Fry Builders/Crossclaim Defendant)34, 35. 36. 37. 38. 39. 40. 4l. 42. 43. 44. 45. 46. Defendant hereby incorporates paragraphs 27-33 as if fully plead herein. This is an action for damages, which exceed $15,000 exclusive of interest, costs, and attorney’s fees, and for injunctive relief. Defendant is a consumer within the meaning of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). Plaintiff, TierOne (“the lender”) and Fry Builders (“the builder”) has conducted trade or commerce with the Defendant within the meaning of FDUTPA. In the conduct of the lender and builder’s trade or commerce, TierOne and Fry Builders have engaged in unconscionable acts or practices and unfair or deceptive practices unlawful within the meaning of FDUTPA. The lender has violated FDUTPA by failing to monitor the progress of construction and issuing payments to the builder without the consent of the Defendant/borrower, ANDREA ROLF. The lender and/or builder have violated FDUTPA by allegedly forging signatures and having documents notarized when the notary was not present at the signing. The lender and builder’s unconscionable acts or practices and unfair or deceptive acts or practices offend public policy. The lender and builder’s unconscionable acts or practices, and unfair or deceptive acts or practices are immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers, including the Defendant who was damaged thereby. The lender and builder’s unconscionable acts or practices and unfair or deceptive acts or practices involve false misrepresentations, express or implied, made to Defendant concerning material facts. Defendant, acting reasonably under the circumstances, relied on the lender and builder’s misrepresentations concerning the loan and construction of the residence and was misled. But for these misrepresentations, Defendant would not have bound herself to the loan or the construction project. The acts of TierOne and Fry Builders as described herein are willful, wanton, and in conscious disregard of the Defendant’s rights. Defendant, ANDREA ROLF, is entitled to an injunction against TierOne, prohibiting Plaintiff from enforcing its rights to foreclose on the Defendant’s home for violation of law alleged herein.47. Defendant is entitled to a declaratory judgment that the acts or practices alleged violate FDUTPA. WHEREFORE, Defendant, ANDREA ROLF, prays for relief as set forth below together with such further relief as this Honorable Court deems just: 48. 49. 50. 51. 52. 53. 54. 55. a. Actual damages b. Prejudgment interest c Declaratory judgment d. Injunctive relief e. Rescission f. Attorney’s fees and costs pursuant to Florida Statutes § 501.2105 COUNT II - BREACH OF FIDUCIARY DUTY (As against TierOne and Fry Builders) Defendant hereby incorporates paragraphs 27-47 as if fully plead herein. This is an action for damages, which exceed $15,000 exclusive of interest, costs, and attorney’s fees, and for injunctive relief. TierOne (“the lender”) assumed the duty of closing a real estate transaction where the Defendant was not represented by an attorney at law. The lender acted as an agent for the Defendant and in such capacity was acting in a fiduciary relationship. Fry Builders (“the builder”) assumed the duty of constructing a single-family residence where the builder would take “draws” from Defendant’s line of credit. The builder took these draws and made material changes to the construction specifications without the consent of the owner. As a result, the lender and builder owed fiduciary duties to the Defendant, whereby the Defendant reposed trust and confidence in them, who undertook such trust and assumed the fiduciary duty by closing the loan and constructing the home. TierOne breached its duties to the Defendant by failing to properly monitor the construction progress and issuing payments to the builder without the consent of the Defendant. Defendant suffered damages resulting from said breaches. The acts of the lender and the builder described herein were willful, wanton, and in conscious disregard of Defendant's rights.WHEREFORE, Defendant, ANDREA ROLF, prays for relief as set forth below together with such further relief as this Honorable Court deems just: 56. 57. 58. 59. 60. 61. 62. 63. a. Actual damages b. Consequential damages c. Prejudgment interest COUNT Ill — INTENTIONAL MISREPRESENTATION (As against TierOne and Fry Builders) Defendant hereby incorporates paragraphs 27-55 as if fully plead herein. This is an action for damages, which exceed $15,000 exclusive of interest, costs, and attorney’s fees. TierOne made false statements by concerning material terms of the construction loan. Fry Builder made false statements concerning material terms of the construction of the subject property. But for the misrepresentation of material terms, the construction never would have begun, and Defendant would not have bound herself to the loan. TierOne and Fry Builders knew or should have known the representations were false. TierOne and Fry Builders intended the representations to induce Defendant to act thereon. Defendant suffered damages in justifiable reliance on the representations. The acts of TierOne and Fry Builders as described herein are willful, wanton, and in conscious disregard of the Defendant’s rights. WHEREFORE, the Defendant prays for relief as set forth below together with such further relief as this Court deems just: a. Actual damages; and b. Prejudgment InterestDated: March 12, 2008. EL LE Brian-David Lit, Esq. Law Offices of Joseph F. Pippen, Jr. and Associates 10225 Ulmerton Rd. #11 Largo, FL 33711 (727) 586-3306 Florida Bar No. 10554 Attorney for Defendant CERTIFICATE OF SERVICE THEREBY CERTIFY that the original of the foregoing DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO MORTGAGE FORECLOSURE COMPLAINT has been furnished to the Clerk of Court and a copy to the Plaintiff's Attorney by mail delivery, on this 12" day of March, 2008 before 5:00 pm. Er jr Brian-David Lit, Esq. Law Offices of Joseph F. Pippen, Jr. and Associates 10225 Ulmerton Rd. #11 Largo, FL 33711 (727) 586-3306 Florida Bar No. 10554 Attorney for Defendant496-4 = TTQ:d90d NaddId £ 301450 MO1:dI ‘x84 -WSP £8 BaGe-92-834 INSTR # 2005000186398, Doc Type NOC, Pages 1, Recorded 12/28/2005 at 08:44 AM, Charlie Green, Lee County Clerk of Cireuit Court, Rec. Fea $10.00 Deputy Clerk DSHAW (239) 772-2378 ~ 7 NOTICE OF COMMENCEMENT = - * Comore . Sw 5 22F The Undersigned hereby gives notice that improvements will be made to certain real property, and in accordance with section 713.13 of the Fiorida Stalates, the following information is provided in this NOTICE OF . Legal descrigtion of property Onchude Struct Addroes, Wareabsl) 141K Nu UT? St. Lee Cosh SuBpw. , AEE * 1 4 AS RECORDED 1A PLAT BOOK: | 2, Sree 8 04-4 a3 03-9395). Quio, Wt THE PuBne Feces OF CEE cour, General description of improvements Setune\\ consteuc ioc Owner ___ Anadces Bott Address (RAGS Fisid Bases j- Heckiagins Geach Co. Sate __ Owner's Interest in site of the inprovement_ FEE. THLE Fee Sinple Title holder (7 other than ovmer} NJ A tame NIA Address = N/A Contractor HONC MARINE CONTRACTING, INC. Address: SAE EA TO Ey SUT B, CAPE CORAL FL S05 Surety loo Fe Address ‘Amount of bond $ ‘Any person saaking loan for the construction ofthe inapravements: Newe —Tearslanst Beencial ‘Addross, 1S) : perenne oP end by ORI pe re moro be oc ay Sed $2 proved by Seation 77243¢7KeHT- lortda Staten, Name Address in addition to hinisoll or herself, owner designates: tp raccive © Copy of the Llanor’s Notice un provided ta Section 71RAS(1\@), Florida Statuton. Expleation date of Wotice of Commencement (fhe expiraiion date is one year from the late of recording unless a a different date is specified). sntgeviemmntvnnte 13° ont Dusan sone . ‘produced, Nye as identification. td ‘ e6rZL 80 9 484