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Filing # 81436390 E-Filed 11/30/2018 09:47:37 AM
IN THE CIRCUIT COURT OF THE 17™ JUDICIAL CIRCUIT
OF FLORIDA, IN AND FOR BROWARD COUNTY CIVIL DIVISION
ABS REO TRUST III,
PLAINTIFF,
vs. CASE NO. 18-001834(11)
MEHDI DANESHZADEH, ET AL.,
DEFENDANTS.
/
ANSWER AND AFFIRMATIVE DEFENSES TO
PLAINTIFF COMPLAINT
Defendant, MEHDI DANESHZADEH (hereinafter referred to as “Defendant”), by and
through the undersigned counsel, hereby provides Defendant’s Answer and Affirmative
Defenses to Complaint filed by Plaintiff, ABS REO TRUST III (hereinafter referred to as
“Plaintiff” or “ABS REO TRUST”), and states as follows:
ANSWER
1. The Defendant admits the allegations contained in paragraphs | of Plaintiffs
Complaint.
2. Defendant denies the allegations contained in paragraphs 2, 7, 11, 12, 13, 19, 20,
21, 22, 23, 24, 25 and 26 of Plaintiff's Complaint.
3. The Defendant is without knowledge or information sufficient to form a belief as
to the truth of the allegations set forth in paragraphs 3, 4, 5, 6, 8, 9, 10, 14, 15, 16, 17 and 18 of
the Plaintiff's Complaint and demands strict proof thereof.
*4* FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 11/30/2018 9:47:37 AM.****4. The Plaintiff states in paragraph 7 of its Complaint that “Plaintiff is an entity not
in possession of the Note but is entitled to enforce the Note.”
AFFIRMATIVE DEFENSES
The Defendant states the following affirmative defenses without assuming the burden of
proof on such defenses that otherwise would rest with Plaintiff.
FIRST AFFIRMATIVE DEFENSE
5. The Defendant repeats and re-alleges the allegations contained in paragraphs |
through 4 herein.
6. Plaintiff, ABS REO TRUST III (hereinafter “ABS REO TRUST” or “Plaintiff’)
filed suit against the Defendant for mortgage foreclosure and for re-establishment of promissory
note.
7. The Plaintiff states in paragraph 7 of its Complaint that “Plaintiff is an entity not
in possession of the Note but is entitled to enforce the Note.”
8. The copy of the Note attached to Plaintiff's Complaint contains a specific
endorsement from the original lender, Hamilton Group Funding, to Flagstar Bank FSB.
9. Plaintiff also attaches a Loan Modification Agreement entered into on July 17,
2014 with Flagstar Bank, FSB.
10. Plaintiff does not allege any facts in its Complaint or in its Affidavit of Lost Note,
nor does it attach any evidence pertaining to how Plaintiff acquired possession of the Note or
whether Plaintiff is a holder or non-holder with rights of possession.
11. There are no facts averred nor evidence provided that indicate anyone other than
Flagstar Bank, FSB is the owner and/or holder of the subject Note with rights to its enforcement.
Plaintiff itself states in its Complaint that there is no record Assignment of Mortgage fromFlagstar Bank FSB, nor is there a copy of a Note with endorsement and/or allonge to any third
party.
12. Plaintiff has included a count for re-establishment of lost note and has filed an
Affidavit of Lost Note signed by Brock Reily for Select Portfolio Servicing, the current servicer
for the subject loan.
13. The Affidavit of Lost Note states that the subject loan was released to the Affiant
Select Portfolio Servicing on February 1, 2015. It further states that the subject loan was
acquired by Plaintiff on November 1, 2014, months prior to Select Portfolio Servicing taking
over servicing the loan.
14. The Affidavit of Lost Note states that the “Noteholder directly acquired
ownership of the Note from a person who was entitled to enforce the Note when the loss of
possession occurred.”
15. Section 673.3091, Florida Statutes, establishes the requirements to enforce a lost
note: A person not in possession of an instrument is entitled to enforce the instrument if: (a) The
person secking to enforce the instrument was entitled to enforce the instrument when loss of
possession occurred, or has directly or indirectly acquired ownership of the instrument from a
person who was entitled to enforce the instrument when loss of possession occurred; (b) The loss
of possession was not the result of a transfer by the person or a lawful seizure; and (c) The
person cannot reasonably obtain possession of the instrument because the instrument was
destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an
unknown person or a person that cannot be found or is not amenable to service of process. §
673.3091(1), Fla. Stat. (2008).15. There is no alonge to Note or endorsement on the Note indicating a transfer, nor is
there an Assignment of Mortgage from Flagstar Bank FSB to Plaintiff or its predecessors.
16. The Affiant in the Affidavit of Lost Note was not the servicer at the time of
possession of the Note and cannot attest to nor prove whose possession the note was in when it
was lost, and whether that person or entity was a holder or had the rights of a holder.
17. Accordingly, there is no allegations nor evidence that Plaintiff ever held or took
possession of the Note and thus Plaintiff cannot prosecute this action.
SECOND AFFIRMATIVE DEFENSE
18. The Defendant repeats and re-alleges the allegations contained in paragraphs 1
through 17 herein.
19, Plaintiff acknowledges in paragraph 7 that it is NOT in possession of the original
Note that is the subject of this lawsuit.
20. Attached to Plaintiff's Complaint is a copy of a Note and Mortgage in favor of
Hamilton Group Funding with a specific endorsement from the original lender, Hamilton Group
Funding, to Flagstar Bank FSB. There are no other endorsements and/or allonge to the Note.
Plaintiff also attaches a Loan Modification Agreement entered into on July 17, 2014 with
Flagstar Bank, FSB.
21. Pursuant to Florida Statute 673.3011, to sue for foreclosure, the plaintiff must be
the “holder” of the Note. See Booker v. Sarasota, Inc. 707 So.2d 886 (Fla. 1 DCA 1998) (“to be
the real party in interest on a promissory note, the plaintiff must be the holder of the note.”).
22. “Holder” is a defined term under Florida Law. Under Florida Statute
671.201(21), the “holder” is “the person in possession of a negotiable instrument that is payableeither to the bearer or to the order of the person in possession.” To be the “holder” when it was
not the original mortagee, (1) the Plaintiff must be “in possession” of the Note; and (2) the Note
must contain an endorsement in blank or an indorsement to the Plaintiff. Absent both of these
elements, the Plaintiff is not the “holder” as a matter of law; see also Florida Statute 673.2011(2)
(“if an instrument is payable to an identified person, negotiation requires transfer of possession
of the instrument and its endorsement by the holder.”).
23. Plaintiff is neither in possession of the Note nor are there any endorsements
contained on the Note to indicate that the Note was transferred to Plaintiff.
24, Plaintiff alleges that Plaintiff is not presently in possession of the original Note
due to a loss of possession and seeks to reestablish a lost note pursuant to Florida Statutes
673.3091.
25, Florida Statutes Chapter 673 “applies to negotiable instruments.”
26. _ F.S. 673.1041(1)(c) defines the term “negotiable instrument” as an unconditional
promise or order to pay a fixed amount of money, if the instrument does not state any other
undertaking or instruction by the person promising or ordering payment to do any act in
addition to the payment of the money.(emphasis added)
27. F.S. 673.1041(2) provides that the “instrument” means a “negotiable instrument.”
The official comment to F.S.673.1041 states the definition of “negotiable instrument” delineates
the scope of Article 3 of the Uniform Commercial Code.
28. The promissory note the Plaintiff seeks to foreclose is not a negotiable instrument
under Florida law because the note is not just a promise to pay- as it requires additional
undertakings by the owner and holder of the note pursuant to the special default loan servicingobligations that apply to these loans. These special and highly detailed loan servicing
requirements are incorporated into the subject note and serve to create an uncertainty in the
amount due. As a result, the promissory note is not a negotiable instrument and not subject to re-
establishment.
29. Plaintiff has failed to demonstrate that it is the real party in interest with standing
to sue upon the foreclosure claim and has failed to attach copies of all documents upon which the
claim is grounded as required by Rule 1.130(a) Fla. R. Civ. P.
30. Under Rules 1.140(b)(6) and 1.130 (a)of the Florida Rules of Civil Procedure,
Plaintiff must attach a copy of all instruments upon which is action is grounded. Specifically,
Plaintiff must attach all the instruments in the alleged chain of title between itself and the
original lender and mortgagee and Plaintiff must attach a copy of the original Note and/or
Mortgage that is being sued upon.
WHEREFORE, Defendant demands the Plaintiff Complaint be dismissed with prejudice,
and for his attorney’s fees and costs and for all other relief to which this Court finds the
Defendant entitled.
I HEREBY CERTIFY a true and correct copy of the foregoing Answer and Affirmative
Defenses to Plaintiff's Complaint was filed via the Florida E Portal System and sent via email
this 30" day of November, 2018 to: Robertson, Anschutz & Schneid, PL mail@rasflaw.com.
Respectfully submitted,
By/s/
Lauren H. Weber, Esq. (FL Bar No.: 17507)
The Weber Law Group, PLLC
401 E. Las Olas Blvd., Ste 1400
Ft. Lauderdale, FL 33301
(954) 763-8885 T (954) 343-0879 F
Ihweberesq@comceast.net
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Filing # 81436390 E-Filed 11/30/2018 09:47:37 AM IN THE CIRCUIT COURT OF THE 17™ JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR BROWARD COUNTY CIVIL DIVISION ABS REO TRUST III, PLAINTIFF, vs. CASE NO. 18-001834(11) MEHDI DANESHZADEH, ET AL., DEFENDANTS. / ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF COMPLAINT Defendant, MEHDI DANESHZADEH (hereinafter referred to as “Defendant”), by and through the undersigned counsel, hereby provides Defendant’s Answer and Affirmative Defenses to Complaint filed by Plaintiff, ABS REO TRUST III (hereinafter referred to as “Plaintiff” or “ABS REO TRUST”), and states as follows: ANSWER 1. The Defendant admits the allegations contained in paragraphs | of Plaintiffs Complaint. 2. Defendant denies the allegations contained in paragraphs 2, 7, 11, 12, 13, 19, 20, 21, 22, 23, 24, 25 and 26 of Plaintiff's Complaint. 3. The Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs 3, 4, 5, 6, 8, 9, 10, 14, 15, 16, 17 and 18 of the Plaintiff's Complaint and demands strict proof thereof. *4* FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 11/30/2018 9:47:37 AM.****4. The Plaintiff states in paragraph 7 of its Complaint that “Plaintiff is an entity not in possession of the Note but is entitled to enforce the Note.” AFFIRMATIVE DEFENSES The Defendant states the following affirmative defenses without assuming the burden of proof on such defenses that otherwise would rest with Plaintiff. FIRST AFFIRMATIVE DEFENSE 5. The Defendant repeats and re-alleges the allegations contained in paragraphs | through 4 herein. 6. Plaintiff, ABS REO TRUST III (hereinafter “ABS REO TRUST” or “Plaintiff’) filed suit against the Defendant for mortgage foreclosure and for re-establishment of promissory note. 7. The Plaintiff states in paragraph 7 of its Complaint that “Plaintiff is an entity not in possession of the Note but is entitled to enforce the Note.” 8. The copy of the Note attached to Plaintiff's Complaint contains a specific endorsement from the original lender, Hamilton Group Funding, to Flagstar Bank FSB. 9. Plaintiff also attaches a Loan Modification Agreement entered into on July 17, 2014 with Flagstar Bank, FSB. 10. Plaintiff does not allege any facts in its Complaint or in its Affidavit of Lost Note, nor does it attach any evidence pertaining to how Plaintiff acquired possession of the Note or whether Plaintiff is a holder or non-holder with rights of possession. 11. There are no facts averred nor evidence provided that indicate anyone other than Flagstar Bank, FSB is the owner and/or holder of the subject Note with rights to its enforcement. Plaintiff itself states in its Complaint that there is no record Assignment of Mortgage fromFlagstar Bank FSB, nor is there a copy of a Note with endorsement and/or allonge to any third party. 12. Plaintiff has included a count for re-establishment of lost note and has filed an Affidavit of Lost Note signed by Brock Reily for Select Portfolio Servicing, the current servicer for the subject loan. 13. The Affidavit of Lost Note states that the subject loan was released to the Affiant Select Portfolio Servicing on February 1, 2015. It further states that the subject loan was acquired by Plaintiff on November 1, 2014, months prior to Select Portfolio Servicing taking over servicing the loan. 14. The Affidavit of Lost Note states that the “Noteholder directly acquired ownership of the Note from a person who was entitled to enforce the Note when the loss of possession occurred.” 15. Section 673.3091, Florida Statutes, establishes the requirements to enforce a lost note: A person not in possession of an instrument is entitled to enforce the instrument if: (a) The person secking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred; (b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and (c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process. § 673.3091(1), Fla. Stat. (2008).15. There is no alonge to Note or endorsement on the Note indicating a transfer, nor is there an Assignment of Mortgage from Flagstar Bank FSB to Plaintiff or its predecessors. 16. The Affiant in the Affidavit of Lost Note was not the servicer at the time of possession of the Note and cannot attest to nor prove whose possession the note was in when it was lost, and whether that person or entity was a holder or had the rights of a holder. 17. Accordingly, there is no allegations nor evidence that Plaintiff ever held or took possession of the Note and thus Plaintiff cannot prosecute this action. SECOND AFFIRMATIVE DEFENSE 18. The Defendant repeats and re-alleges the allegations contained in paragraphs 1 through 17 herein. 19, Plaintiff acknowledges in paragraph 7 that it is NOT in possession of the original Note that is the subject of this lawsuit. 20. Attached to Plaintiff's Complaint is a copy of a Note and Mortgage in favor of Hamilton Group Funding with a specific endorsement from the original lender, Hamilton Group Funding, to Flagstar Bank FSB. There are no other endorsements and/or allonge to the Note. Plaintiff also attaches a Loan Modification Agreement entered into on July 17, 2014 with Flagstar Bank, FSB. 21. Pursuant to Florida Statute 673.3011, to sue for foreclosure, the plaintiff must be the “holder” of the Note. See Booker v. Sarasota, Inc. 707 So.2d 886 (Fla. 1 DCA 1998) (“to be the real party in interest on a promissory note, the plaintiff must be the holder of the note.”). 22. “Holder” is a defined term under Florida Law. Under Florida Statute 671.201(21), the “holder” is “the person in possession of a negotiable instrument that is payableeither to the bearer or to the order of the person in possession.” To be the “holder” when it was not the original mortagee, (1) the Plaintiff must be “in possession” of the Note; and (2) the Note must contain an endorsement in blank or an indorsement to the Plaintiff. Absent both of these elements, the Plaintiff is not the “holder” as a matter of law; see also Florida Statute 673.2011(2) (“if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its endorsement by the holder.”). 23. Plaintiff is neither in possession of the Note nor are there any endorsements contained on the Note to indicate that the Note was transferred to Plaintiff. 24, Plaintiff alleges that Plaintiff is not presently in possession of the original Note due to a loss of possession and seeks to reestablish a lost note pursuant to Florida Statutes 673.3091. 25, Florida Statutes Chapter 673 “applies to negotiable instruments.” 26. _ F.S. 673.1041(1)(c) defines the term “negotiable instrument” as an unconditional promise or order to pay a fixed amount of money, if the instrument does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of the money.(emphasis added) 27. F.S. 673.1041(2) provides that the “instrument” means a “negotiable instrument.” The official comment to F.S.673.1041 states the definition of “negotiable instrument” delineates the scope of Article 3 of the Uniform Commercial Code. 28. The promissory note the Plaintiff seeks to foreclose is not a negotiable instrument under Florida law because the note is not just a promise to pay- as it requires additional undertakings by the owner and holder of the note pursuant to the special default loan servicingobligations that apply to these loans. These special and highly detailed loan servicing requirements are incorporated into the subject note and serve to create an uncertainty in the amount due. As a result, the promissory note is not a negotiable instrument and not subject to re- establishment. 29. Plaintiff has failed to demonstrate that it is the real party in interest with standing to sue upon the foreclosure claim and has failed to attach copies of all documents upon which the claim is grounded as required by Rule 1.130(a) Fla. R. Civ. P. 30. Under Rules 1.140(b)(6) and 1.130 (a)of the Florida Rules of Civil Procedure, Plaintiff must attach a copy of all instruments upon which is action is grounded. Specifically, Plaintiff must attach all the instruments in the alleged chain of title between itself and the original lender and mortgagee and Plaintiff must attach a copy of the original Note and/or Mortgage that is being sued upon. WHEREFORE, Defendant demands the Plaintiff Complaint be dismissed with prejudice, and for his attorney’s fees and costs and for all other relief to which this Court finds the Defendant entitled. I HEREBY CERTIFY a true and correct copy of the foregoing Answer and Affirmative Defenses to Plaintiff's Complaint was filed via the Florida E Portal System and sent via email this 30" day of November, 2018 to: Robertson, Anschutz & Schneid, PL mail@rasflaw.com. Respectfully submitted, By/s/ Lauren H. Weber, Esq. (FL Bar No.: 17507) The Weber Law Group, PLLC 401 E. Las Olas Blvd., Ste 1400 Ft. Lauderdale, FL 33301 (954) 763-8885 T (954) 343-0879 F Ihweberesq@comceast.net