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Filing # 34141335 E-Filed 11/05/2015 06:07:12 PM
IN THE CIRCUIT COURT OF THE 17° JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
CASE NO.: CACE15012974 (11)
WELLS FARGO BANK, NA;
Plaintiff,
vs.
GEORGE T. GOODMAN, et. al.
Defendant.
/
DEFENDANT, IRMA OLIVARES AND GEORGE T. GOODMAN’S, ANSWER
TO PLAINTIFF’S COMPLAINT AND AFFIRMATIVE DEFENSES
COMES NOW, Defendants, IRMA OLIVARES and GEORGE T.
GOODMAN, by and through undersigned counsel, and for their Answer and Affirmative
Defenses, states:
ANSWER
Without sufficient knowledge to admit or deny, and therefore denied.
Without sufficient knowledge to admit or deny, and therefore denied.
Without sufficient knowledge to admit or deny, and therefore denied.
Denied, and demand strict proof thereof.
Denied, and demand strict proof thereof.
Denied, and demand strict proof thereof.
Denied, and demand strict proof thereof.
Denied, and demand strict proof thereof.
Admitted.
10. Denied, and demand strict proof thereof.
ewe rN ayvPp Yd =
11. Without sufficient knowledge to admit or deny, and therefore denied.
12. Without sufficient knowledge to admit or deny, and therefore denied.
** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 11/5/2015 6:07:13 PM.****AFFIRMATIVE DEFENSES
1. UNAUTHORIZED CHARGES ADDED TO BALANCE: Plaintiff
WELLS FARGO BANK, NA (“WELLS FARGO BANK, NA”), has charged and/or
collected payments from Defendant for attorney fees, legal fees, foreclosure costs, late
fees, property inspection fees, title search expenses, filing fees, broker price opinions,
appraisal fees, and other charges and advances, and predatory lending fees that that are
not authorized by or in conformity with the terms of the subject note and mortgage.
Plaintiff wrongfully added and continues to unilaterally add these unauthorized charges
to the balance Plaintiff claims is due and owing under the subject note and mortgage. The
above-referenced charged are unauthorized because:
a. the plaintiff does not and did not own the subject mortgage loan at the
time it unilaterally imposed and charged the above described fees and
therefore lacked any legal or contractual authority to make or collect any
charges from these defendants; or
b. because the disputed charges and fees set out hereinabove have been and.
continue to be unilaterally added to the balance of the Defendant's home
loan which charges and fees are unauthorized and premature as the fees
and charges are directly associated with this foreclosure action and cannot
legally be imposed or charged until the plaintiff provides Defendant with
obligatory post default/ pre acceleration default loan servicing set out in
affirmative defense No. 3 herein below which default loan servicing the
Plaintiff failed to provide.
2. FAILURE OF CONTRACTUAL CONDITION PRECEDENT:
NO HUD COUNSELING NOTICE: Plaintiff failed to comply with the notice
requirements imposed on Plaintiff pursuant to the National Housing Act, 12 U.S.C.
1701x(c)(5) which requires the creditor to advise Defendant of any home ownership
counseling offered together with information about counseling offered by the U.S.
Department of Housing and Urban Development. No such notice was received by the
Defendant. The U.S. Department of Housing and Urban Development has determined
that 12 U.S.C. 1701x(c)(5) creates an affirmative legal duty on the part of the Plaintiff
FC-772068 2 CACE15012974 (11)and Plaintiff's non-compliance with the law’s requirements is an actionable event that
affects the Plaintiff's ability to carry out this foreclosure.
12 U.S.C. 1701x(c)(5)(A)@) states that the creditor shall provide the required
notice. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff demonstrates
compliance with 12 U.S.C. 1701x(c)(5). See Acosta v. Deutsche Bank Nat. Trust Co., 88
So. 3d 415, 417 (Fla. 4th DCA 2012)(bank's failure to comply with the forbearance,
mortgage modification and foreclosure prevention loan servicing requirements imposed
by 12 U.S.C. § 1701x(c)(5), was found to be a meritorious defense); Fahey Banking Co.
v. Squire, 2012 WL 4056775 (Ohio Ct. App. 2012)(bank was not entitled to judgment as
a matter of law by reason of failure to comply with the provisions of 12 U.S.C. §
1701x(c)(5)).
As one lowa court explained, “[a|ccording to its 1989 notice, HUD foresaw—and
approved—the concept that failure to comply with its so-called “mitigation” or
“forbearance” rules could be raised as a defense in a foreclosure proceeding. That intent
should be honored here. Furthermore, we believe there is no unfairness in requiring
lenders that benefited from a federal mortgage insurance program to accept the
obligations that the federal government intended to impose on them.” ABN AMRO
Mortg. Group, Inc. v. Tullar, 770 N.W.2d 851 (lowa Ct. App. 2009). Marlyand’s highest
court also found that failoure to follow HUD guidelines may be raised as an affirmative
defense: “we believe that a borrower could appropriately raise the regulatory violation in
his or her defense”. Wells Fargo Home Mortgage v. Neal, 922 A.2d 538, 544 (Md.2007).
See also Federal Land Bank of St. Paul v. Overboe, 404 N.W.2d 445 (N.D.1987)
(collecting cases).
3. FAILURE TO STATE A CAUSE OF ACTION: The Plaintiff may not
be the real party in interest nor authorized to bring this foreclosure claim.
a. In Florida, the prosecution of a foreclosure action is by the owner and holder of
the mortgage and the note. Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (FI.
4" DCA 1975).
b. Plaintiff alleges in its complaint that it is the holder of the Mortgage Note and
Mortgage and /or is entitled to enforce the Mortgage Note and Mortgage. Yet Plaintiff,
WELLS FARGO BANK, NA, attached a purported copy of a Mortgage and Note that
FC-772068 3 CACE15012974 (11)states the lender and principal as .
c. The plaintiff is not entitled to maintain this action in which it seeks to foreclose
on a note that the plaintiff does not own. Your Construction Center, Inc. v. Gross, 316
So. 2d 596 (Fla. 4th DCA 1975).
d. A person other than the Plaintiff is the true owner of the claim sued upon and
the Plaintiff is not the real party in interest and is not authorized to bring this action.
e. Rule 1.210(a) of the Florida Rules of Civil Procedure provides, in pertinent
part:
Every action may be prosecuted in the name of the real party in
interest, but a personal representative, administrator, guardian,
trustee of an express trust, a party with whom or in whose name a
contract has been made for the benefit of another, or a party
expressly authorized by statute may sue in that person’s own name
without joining the party for whose benefit the action is brought...
The plaintiff in this action meets none of these criteria.
f. The party prosecuting the action must have a sufficient stake in the outcome
and that the party bringing the claim be recognized in the law as being a real party in
interest entitled to bring the claim. This entitlement to prosecute a claim in Florida courts
tests exclusively in those persons granted by substantive law, the power to enforce the
claim. Kumar Corp. v Nopal Lines, Ltd, et al, 462 So. 2d 1178, (Fla. 3d DCA 1985).
4. PLAINTIFF LACKS STANDING: The Plaintiff does not have standing to
bring this foreclosure claim.
a. To demonstrate standing, the Plaintiff must show that a case or controversy
exists between plaintiff and defendant and that such a case or controversy continues from
the commencement through the existence of the litigation. Ferreiro _v. Philadelphia
Indem. Ins. Co., 928 So. 2d 374, (Fla. 3d DCA 2006). See also Wexler v. Lepore, 878 So.
2d 1276, (Fla. 4" DCA 2004).
b. Moreover, standing is not a defect that can be cured after the inception of a
lawsuit and the filing of the complaint because in actions at law the right of the plaintiff
to recover must be measured by facts as they exist when the suit was instituted.
Progressive Express Ins. Co. v. McGrath Community Chiropractic, 913 So. 2d 1281,
FC-772068 4 CACEI5012974 (11)1285 (Fla. 2d DCA 2005) (lack of standing is not a defect that may be cured by the
acquisition of standing after the case is filed). Progressive Express Insurance held that
the failure of a plaintiff to secure an assignment of insurance benefits until after the
Complaint was filed was fatal to the cause of action, would not be saved by “relation
back” principles, and that the only way to proceed was to dismiss and bring a new law-
suit. This was because, until the assignment took place, the real party in interest was an
entirely different entity. Thus, on the date the Complaint was filed, plaintiff was not the
party in interest and lacked standing to bring suit. Id. at 1285-1286.
c. Plaintiff has failed to plead and attach any evidence of an assignment
purporting to give them legal standing to file this foreclosure claim.
d. §701.02, Fla. Stat. states in pertinent part:
1) An Assignment of a Mortgage upon real property or of any interest
therein, is not good or effectual in law or equity, against creditors or
subsequent purchasers, for a valuable consideration, and without notice,
unless the Assignment is contained in a document that, in its title,
indicates an Assignment of Mortgage and is recorded according to law
§701.02, Fla. Stat. (2005)
e. Florida Courts have also held in similar cases that a valid Assignment must be
executed before a party may file suit. See Progressive Exp. Ins. Co. v. McGrath
Community Chiropractic, 913 So. 2d 1281, 1287 (Fla. 2d DCA 2005) (where an
insurance provider alleged that insurance benefits were assigned to it without producing a
written instrument, then amended the claim with a written instrument dated six months
after the filing of the suit, held that the provider lacked standing because there was no
Assignment at the time that the case was filed in court.)
5. NEGATIVE AVERMENT_ AS TO AUTHENTICITY: Upon information
and belief, Defendant asserts and alleges all other facts referenced in the previous
affirmative defenses and specifically raises by negative averment the lack of authenticity
and/or validity any other signatures or endorsements on the Note, Mortgage, Allonge or
any Assignments thereof, filed by Plaintiff or that will be produced in the future in
connection with this case. This negative averment is raised by Defendant pursuant to
Florida Statute §673.3081.
FC-772068 5 CACE15012974 (11)6. UNCLEAN HANDS: The Plaintiff comes to court with unclean hands and is
prohibited by reason thereof from obtaining the equitable relief of foreclosure from this
Court. The Plaintiffs unclean hands result from the Plaintiff's failure to comply with all
applicable requirements as provided in the above affirmative defenses. See Cross v.
Federal Nat. Mortgage Ass'n, 359 So.2d 464 (Fla. 4th DCA 1978) (mortgagee's failure to
provide defaulted HUD-insured mortgagor with notice required under mortgage servicing
regulations was affirmative defense that precluded summary judgment in favor of
ble Realty of Am. Corp., 702 So. 2d 1322, 1323 (Fla. Dist.
mortgagee); Family
Ct. App. 1997); Wells Fargo Home Mortg., Inc. v. Neal, 922 A.2d 538, 547 (2007)
(mortgagor may not wield HUD regulations as sword but may assert regulatory
noncompliance as shield to foreclosure on HUD mortgage); Federal Nat'l Mortg. Ass'n v.
Ricks, 372 N.Y.S.2d 485, 497 (N.Y. Sup. Ct. 1975) (mortgagors may interpose as first
defense, failure of mortgagee to comply with provisions of HUD Handbook); Lacy-
McKinney v. Taylor Bean & Whitaker Mortg. Corp., 937 N.E.2d 853, 863 (Ind. Ct. App.
2010)(We find it problematic to treat such noncompliance merely as an equitable remedy.
If noncompliance with HUD regulations is merely “unclean hands,” a court may be
precluded from requiring compliance in cases where the mortgagor is also deemed to
have unclean hands).
Plaintiff has also failed to provide notice that the subject debt had been transferred
to another creditor and the debtor did not receive written notice of same, within the
statutory allocated time, to wit: Assignment of consumer debts. Fla. Stat. § 559.715:
..-The assignee must give the debtor written notice of such assignment within 30 days
after the assignment.
Additionally, Plaintiff has failed to comply with 24 CFR 203.602 which requires
in pertinent part, that the mortgagee shall give notice to each mortgagor in default on a
form supplied by the Secretary or, if the mortgagee wishes to use its own form, on a form
approved by the Secretary, no later than the end of the second month of any delinquency
in payments under the mortgage.
Moreover, Plaintiff has failed to comply with 24 CFR 203.604 which requires that
the mortgagee must: have a face-to-face interview with the mortgagor, or make a
reasonable effort to arrange such a meeting, before three full monthly installments due on
FC-772068 6 CACE15012974 (11)the mortgage are unpaid; inform the mortgagor that HUD will make information
regarding the status and payment history of the mortgagor's loan available to local credit
bureaus and prospective creditors; inform the mortgagor of other available assistance, if
any; inform the morigagor of the names and addresses of HUD officials to whom further
communications may be addressed.
WHEREFORE, Defendants, IRMA OLIVARES and GEORGE T. GOODMAN
respectfully requests this Honorable Court to dismiss Plaintiff's Complaint with
prejudice, decline to enforce the Mortgage and Note, award costs and reasonable
attorney’s fees as provided by §57.105, Fla. Stat. the Mortgage and the Note, and grant
such other relief as the Court deems just and appropriate.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on November 5, 2015, a true and correct copy of the
foregoing was forwarded electronic mail (servicemail@aldridgepite.com) to: Gweneth
M. Brimm, Esq., Aldridge Pite, LLP, 1615 South Congress Avenue, Delray Beach,
Florida 33445. Fax: (561)392-6965.
LOAN LAWYERS, LLC
Attorneys for Defendant
2150 S. Andrews Ave, 2" Floor
Fort Lauderdale, FL 33316
FBN 059025
___ SONJA-LUCIENNE CAJUSTE, ESQ.
FBN 102983
MICHAEL A. CITRON, ESQ.
FBN 105083
___. MATIS H. ABARBANEL, ESQ.
FBN 130435
___ MATTHEW D. BAVARO ESQ.
FBN 175821
FC-772068 7 CACE15012974 (11)
Preview
Filing # 34141335 E-Filed 11/05/2015 06:07:12 PM IN THE CIRCUIT COURT OF THE 17° JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE15012974 (11) WELLS FARGO BANK, NA; Plaintiff, vs. GEORGE T. GOODMAN, et. al. Defendant. / DEFENDANT, IRMA OLIVARES AND GEORGE T. GOODMAN’S, ANSWER TO PLAINTIFF’S COMPLAINT AND AFFIRMATIVE DEFENSES COMES NOW, Defendants, IRMA OLIVARES and GEORGE T. GOODMAN, by and through undersigned counsel, and for their Answer and Affirmative Defenses, states: ANSWER Without sufficient knowledge to admit or deny, and therefore denied. Without sufficient knowledge to admit or deny, and therefore denied. Without sufficient knowledge to admit or deny, and therefore denied. Denied, and demand strict proof thereof. Denied, and demand strict proof thereof. Denied, and demand strict proof thereof. Denied, and demand strict proof thereof. Denied, and demand strict proof thereof. Admitted. 10. Denied, and demand strict proof thereof. ewe rN ayvPp Yd = 11. Without sufficient knowledge to admit or deny, and therefore denied. 12. Without sufficient knowledge to admit or deny, and therefore denied. ** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 11/5/2015 6:07:13 PM.****AFFIRMATIVE DEFENSES 1. UNAUTHORIZED CHARGES ADDED TO BALANCE: Plaintiff WELLS FARGO BANK, NA (“WELLS FARGO BANK, NA”), has charged and/or collected payments from Defendant for attorney fees, legal fees, foreclosure costs, late fees, property inspection fees, title search expenses, filing fees, broker price opinions, appraisal fees, and other charges and advances, and predatory lending fees that that are not authorized by or in conformity with the terms of the subject note and mortgage. Plaintiff wrongfully added and continues to unilaterally add these unauthorized charges to the balance Plaintiff claims is due and owing under the subject note and mortgage. The above-referenced charged are unauthorized because: a. the plaintiff does not and did not own the subject mortgage loan at the time it unilaterally imposed and charged the above described fees and therefore lacked any legal or contractual authority to make or collect any charges from these defendants; or b. because the disputed charges and fees set out hereinabove have been and. continue to be unilaterally added to the balance of the Defendant's home loan which charges and fees are unauthorized and premature as the fees and charges are directly associated with this foreclosure action and cannot legally be imposed or charged until the plaintiff provides Defendant with obligatory post default/ pre acceleration default loan servicing set out in affirmative defense No. 3 herein below which default loan servicing the Plaintiff failed to provide. 2. FAILURE OF CONTRACTUAL CONDITION PRECEDENT: NO HUD COUNSELING NOTICE: Plaintiff failed to comply with the notice requirements imposed on Plaintiff pursuant to the National Housing Act, 12 U.S.C. 1701x(c)(5) which requires the creditor to advise Defendant of any home ownership counseling offered together with information about counseling offered by the U.S. Department of Housing and Urban Development. No such notice was received by the Defendant. The U.S. Department of Housing and Urban Development has determined that 12 U.S.C. 1701x(c)(5) creates an affirmative legal duty on the part of the Plaintiff FC-772068 2 CACE15012974 (11)and Plaintiff's non-compliance with the law’s requirements is an actionable event that affects the Plaintiff's ability to carry out this foreclosure. 12 U.S.C. 1701x(c)(5)(A)@) states that the creditor shall provide the required notice. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff demonstrates compliance with 12 U.S.C. 1701x(c)(5). See Acosta v. Deutsche Bank Nat. Trust Co., 88 So. 3d 415, 417 (Fla. 4th DCA 2012)(bank's failure to comply with the forbearance, mortgage modification and foreclosure prevention loan servicing requirements imposed by 12 U.S.C. § 1701x(c)(5), was found to be a meritorious defense); Fahey Banking Co. v. Squire, 2012 WL 4056775 (Ohio Ct. App. 2012)(bank was not entitled to judgment as a matter of law by reason of failure to comply with the provisions of 12 U.S.C. § 1701x(c)(5)). As one lowa court explained, “[a|ccording to its 1989 notice, HUD foresaw—and approved—the concept that failure to comply with its so-called “mitigation” or “forbearance” rules could be raised as a defense in a foreclosure proceeding. That intent should be honored here. Furthermore, we believe there is no unfairness in requiring lenders that benefited from a federal mortgage insurance program to accept the obligations that the federal government intended to impose on them.” ABN AMRO Mortg. Group, Inc. v. Tullar, 770 N.W.2d 851 (lowa Ct. App. 2009). Marlyand’s highest court also found that failoure to follow HUD guidelines may be raised as an affirmative defense: “we believe that a borrower could appropriately raise the regulatory violation in his or her defense”. Wells Fargo Home Mortgage v. Neal, 922 A.2d 538, 544 (Md.2007). See also Federal Land Bank of St. Paul v. Overboe, 404 N.W.2d 445 (N.D.1987) (collecting cases). 3. FAILURE TO STATE A CAUSE OF ACTION: The Plaintiff may not be the real party in interest nor authorized to bring this foreclosure claim. a. In Florida, the prosecution of a foreclosure action is by the owner and holder of the mortgage and the note. Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (FI. 4" DCA 1975). b. Plaintiff alleges in its complaint that it is the holder of the Mortgage Note and Mortgage and /or is entitled to enforce the Mortgage Note and Mortgage. Yet Plaintiff, WELLS FARGO BANK, NA, attached a purported copy of a Mortgage and Note that FC-772068 3 CACE15012974 (11)states the lender and principal as . c. The plaintiff is not entitled to maintain this action in which it seeks to foreclose on a note that the plaintiff does not own. Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fla. 4th DCA 1975). d. A person other than the Plaintiff is the true owner of the claim sued upon and the Plaintiff is not the real party in interest and is not authorized to bring this action. e. Rule 1.210(a) of the Florida Rules of Civil Procedure provides, in pertinent part: Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought... The plaintiff in this action meets none of these criteria. f. The party prosecuting the action must have a sufficient stake in the outcome and that the party bringing the claim be recognized in the law as being a real party in interest entitled to bring the claim. This entitlement to prosecute a claim in Florida courts tests exclusively in those persons granted by substantive law, the power to enforce the claim. Kumar Corp. v Nopal Lines, Ltd, et al, 462 So. 2d 1178, (Fla. 3d DCA 1985). 4. PLAINTIFF LACKS STANDING: The Plaintiff does not have standing to bring this foreclosure claim. a. To demonstrate standing, the Plaintiff must show that a case or controversy exists between plaintiff and defendant and that such a case or controversy continues from the commencement through the existence of the litigation. Ferreiro _v. Philadelphia Indem. Ins. Co., 928 So. 2d 374, (Fla. 3d DCA 2006). See also Wexler v. Lepore, 878 So. 2d 1276, (Fla. 4" DCA 2004). b. Moreover, standing is not a defect that can be cured after the inception of a lawsuit and the filing of the complaint because in actions at law the right of the plaintiff to recover must be measured by facts as they exist when the suit was instituted. Progressive Express Ins. Co. v. McGrath Community Chiropractic, 913 So. 2d 1281, FC-772068 4 CACEI5012974 (11)1285 (Fla. 2d DCA 2005) (lack of standing is not a defect that may be cured by the acquisition of standing after the case is filed). Progressive Express Insurance held that the failure of a plaintiff to secure an assignment of insurance benefits until after the Complaint was filed was fatal to the cause of action, would not be saved by “relation back” principles, and that the only way to proceed was to dismiss and bring a new law- suit. This was because, until the assignment took place, the real party in interest was an entirely different entity. Thus, on the date the Complaint was filed, plaintiff was not the party in interest and lacked standing to bring suit. Id. at 1285-1286. c. Plaintiff has failed to plead and attach any evidence of an assignment purporting to give them legal standing to file this foreclosure claim. d. §701.02, Fla. Stat. states in pertinent part: 1) An Assignment of a Mortgage upon real property or of any interest therein, is not good or effectual in law or equity, against creditors or subsequent purchasers, for a valuable consideration, and without notice, unless the Assignment is contained in a document that, in its title, indicates an Assignment of Mortgage and is recorded according to law §701.02, Fla. Stat. (2005) e. Florida Courts have also held in similar cases that a valid Assignment must be executed before a party may file suit. See Progressive Exp. Ins. Co. v. McGrath Community Chiropractic, 913 So. 2d 1281, 1287 (Fla. 2d DCA 2005) (where an insurance provider alleged that insurance benefits were assigned to it without producing a written instrument, then amended the claim with a written instrument dated six months after the filing of the suit, held that the provider lacked standing because there was no Assignment at the time that the case was filed in court.) 5. NEGATIVE AVERMENT_ AS TO AUTHENTICITY: Upon information and belief, Defendant asserts and alleges all other facts referenced in the previous affirmative defenses and specifically raises by negative averment the lack of authenticity and/or validity any other signatures or endorsements on the Note, Mortgage, Allonge or any Assignments thereof, filed by Plaintiff or that will be produced in the future in connection with this case. This negative averment is raised by Defendant pursuant to Florida Statute §673.3081. FC-772068 5 CACE15012974 (11)6. UNCLEAN HANDS: The Plaintiff comes to court with unclean hands and is prohibited by reason thereof from obtaining the equitable relief of foreclosure from this Court. The Plaintiffs unclean hands result from the Plaintiff's failure to comply with all applicable requirements as provided in the above affirmative defenses. See Cross v. Federal Nat. Mortgage Ass'n, 359 So.2d 464 (Fla. 4th DCA 1978) (mortgagee's failure to provide defaulted HUD-insured mortgagor with notice required under mortgage servicing regulations was affirmative defense that precluded summary judgment in favor of ble Realty of Am. Corp., 702 So. 2d 1322, 1323 (Fla. Dist. mortgagee); Family Ct. App. 1997); Wells Fargo Home Mortg., Inc. v. Neal, 922 A.2d 538, 547 (2007) (mortgagor may not wield HUD regulations as sword but may assert regulatory noncompliance as shield to foreclosure on HUD mortgage); Federal Nat'l Mortg. Ass'n v. Ricks, 372 N.Y.S.2d 485, 497 (N.Y. Sup. Ct. 1975) (mortgagors may interpose as first defense, failure of mortgagee to comply with provisions of HUD Handbook); Lacy- McKinney v. Taylor Bean & Whitaker Mortg. Corp., 937 N.E.2d 853, 863 (Ind. Ct. App. 2010)(We find it problematic to treat such noncompliance merely as an equitable remedy. If noncompliance with HUD regulations is merely “unclean hands,” a court may be precluded from requiring compliance in cases where the mortgagor is also deemed to have unclean hands). Plaintiff has also failed to provide notice that the subject debt had been transferred to another creditor and the debtor did not receive written notice of same, within the statutory allocated time, to wit: Assignment of consumer debts. Fla. Stat. § 559.715: ..-The assignee must give the debtor written notice of such assignment within 30 days after the assignment. Additionally, Plaintiff has failed to comply with 24 CFR 203.602 which requires in pertinent part, that the mortgagee shall give notice to each mortgagor in default on a form supplied by the Secretary or, if the mortgagee wishes to use its own form, on a form approved by the Secretary, no later than the end of the second month of any delinquency in payments under the mortgage. Moreover, Plaintiff has failed to comply with 24 CFR 203.604 which requires that the mortgagee must: have a face-to-face interview with the mortgagor, or make a reasonable effort to arrange such a meeting, before three full monthly installments due on FC-772068 6 CACE15012974 (11)the mortgage are unpaid; inform the mortgagor that HUD will make information regarding the status and payment history of the mortgagor's loan available to local credit bureaus and prospective creditors; inform the mortgagor of other available assistance, if any; inform the morigagor of the names and addresses of HUD officials to whom further communications may be addressed. WHEREFORE, Defendants, IRMA OLIVARES and GEORGE T. GOODMAN respectfully requests this Honorable Court to dismiss Plaintiff's Complaint with prejudice, decline to enforce the Mortgage and Note, award costs and reasonable attorney’s fees as provided by §57.105, Fla. Stat. the Mortgage and the Note, and grant such other relief as the Court deems just and appropriate. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on November 5, 2015, a true and correct copy of the foregoing was forwarded electronic mail (servicemail@aldridgepite.com) to: Gweneth M. Brimm, Esq., Aldridge Pite, LLP, 1615 South Congress Avenue, Delray Beach, Florida 33445. Fax: (561)392-6965. LOAN LAWYERS, LLC Attorneys for Defendant 2150 S. Andrews Ave, 2" Floor Fort Lauderdale, FL 33316 FBN 059025 ___ SONJA-LUCIENNE CAJUSTE, ESQ. FBN 102983 MICHAEL A. CITRON, ESQ. FBN 105083 ___. MATIS H. ABARBANEL, ESQ. FBN 130435 ___ MATTHEW D. BAVARO ESQ. FBN 175821 FC-772068 7 CACE15012974 (11)