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* FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 10/23/2013 11:52:43 AM.****
Electronically Filed 10/23/2013 11:52:42 AM ET
IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT OF FLORIDA
IN AND FOR BROWARD COUNTY, FLORIDA
DEUTSCHE BANK NATIONAL TRUST COMPANY, CASE NO.: CACE12035066
AS TRUSTEE FOR AMERICAN HOME MORTGAGE FL BAR NO: 0091185
ASSETS TRUST 2007-2, MORTGAGE-BACKED
PASS-THROUGH CERTIFICATES 2007-2,
Plaintiff,
vs.
JEVON KEARSE; ET AL
Defendants.
/
DEFENDANT, JEVON KEARSE’S ANSWER AND AFFIRMATIVE DEFENSES TO
PLAINTIFF’S COMPLAINT
ANSWER
Defendant, JEVON KEARSE (“J. KEARSE” or the “Defendant”), by and through the
undersigned, files this Answer and responsive pleading to the Complaint to Foreclose Mortgage
filed by Plaintiff DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR
AMERICAN HOME MORTGAGE ASSETS TRUST 2007-2, MORTGAGE-BACKED PASS-
THROUGH CERTIFICATES 2007-2, (“DEUTSCHE BANK” or “Plaintiff’) and states as
follows to each and every paragraph of the Complaint:
COUNTI
1. J. KEARSE admits the allegations contained in Paragraph 1 of the Complaint.
2. J. KEARSE admits that the Mortgage was recorded in Official Records Book
43392 at page 606 of the Public Records of BROWARD County, Florida. J. KEARSE denies
the remaining allegations contained in Paragraph 2 of the Complaint and demands strict proof
thereof.
3. J. KEARSE denies the allegations contained in Paragraph 3 of the Complaint and
4159.000demands strict proof thereof.
4. J. KEARSE is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 4 of the Complaint and therefore denies the allegations and demands
strict proof thereof.
5. J. KEARSE is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 5 of the Complaint and therefore denies the allegations and demands
strict proof thereof.
6. J. KEARSE denies the allegations contained in Paragraph 6 of the Complaint and
demands strict proof thereof.
7. J. KEARSE denies the allegations contained in Paragraph 7 of the Complaint and
demands strict proof thereof.
8. J. KEARSE is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 8 of the Complaint and therefore denies the allegations and demands
strict proof thereof.
9. J. KEARSE denies the allegations contained in Paragraph 9 of the Complaint and
demands strict proof thereof.
10. ‘J. KEARSE admits the allegations contained in Paragraph 10 of the Complaint.
11. J. KEARSE is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 11 of the Complaint and therefore denies the allegations and demands
strict proof thereof.
12. J. KEARSE is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 12 of the Complaint and therefore denies the allegations and demands
strict proof thereof.
4159.00013. J. KEARSE is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 13 of the Complaint and therefore denies the allegations and demands
strict proof thereof.
14. J. KEARSE is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 14 of the Complaint and therefore denies the allegations and demands
strict proof thereof.
15. J. KEARSE is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 15 of the Complaint and therefore denies the allegations and demands
strict proof thereof.
16. J. KEARSE is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 16 of the Complaint and therefore denies the allegations and demands
strict proof thereof.
WHEREFORE, Defendant, JEVON KEARSE, demands that this Court to dismiss with
prejudice the above titled action and an award of attorney fees and costs, and such other relief
allowable by law and/or equity.
AFFIRMATIVE DEFENSES
Defendant, JEVON KEARSE (“J. KEARSE” or the “Defendant”), by and through the
undersigned, files the following Affirmative Defenses in response to the Complaint filed by
Plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR
AMERICAN HOME MORTGAGE ASSETS TRUST 2007-2, MORTGAGE-BACKED PASS-
THROUGH CERTIFICATES 2007-2, (“DEUTSCHE BANK” or “Plaintiff’) and states the
following affirmative defenses:
STATEMENT OF FACTS AS TO AFFIRMATIVE DEFENSES
4159.0001. On December 19, 2012, Plaintiff filed a Mortgage Foreclosure Complaint (“the
Complaint’) against the Defendant, J. KEARSE, regarding the following property:
LOT 21, BLOCK 10 OF THE HILLSBORO SHORES SECTION "A", ACCORDING
TO THE PLAT THEREOF RECORDED IN PLAT BOOK 21, AT PAGE 14 OF THE
PUBLIC RECORDS OF BROWARD COUNTY.
a/k/a 2310 Bay Drive, Pompano Beach, FL 33062 (the "PROPERTY").
2. On or about December 19, 2006, J. KEARSE allegedly executed and delivered a
promissory note (“NOTE”) and a mortgage (“MORTGAGE”) encumbering the PROPERTY to
the Lender, AMERICAN HOME MORTGAGE.
3. The alleged MORTGAGE was recorded on January 8, 2007 in Official Records
Book 43392 at page 606 of the Public Records of BROWARD County, Florida. The alleged
MORTGAGE shows that the Lender is AMERICAN HOME MORTGAGE.
4. DEUTSCHE BANK alleges in Paragraph 3 of the Complaint that it is the holder
of the NOTE and is entitled to enforce the NOTE and MORTGAGE pursuant to Florida Statute
§673.3011.
5. In the Complaint, the copies of the MORTGAGE and NOTE attached as Exhibits
were for the benefit of AMERICAN HOME MORTGAGE, not DEUTSCHE BANK.
6. The Complaint contains an Assignment of Mortgage indicating an assignment of
the subject MORTGAGE from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,
INC. (“MERS”) AS NOMINEE FOR AMERICAN HOME MORTGAGE to DEUTSCHE
BANK (the “AOM”).
7. The AOM was executed on September 28, 2012, and the assignment of the
subject MORTGAGE took place on or after February 28, 2007.
8. The NOTE is endorsed in blank, and contains the following provisions:
4159.000a. The instruction that the borrower pay a late charge if the lender has not received
payment by the end of 15 calendar days after the date payment is due in
Paragraph 7(A);
b. The instruction that the lender will deliver or mail to the borrower any changes in
the interest rate and monthly payments in Paragraph 4(J);
c. The obligation that the borrower notify the lender, in writing, if borrower opts to
make a prepayment of principal in Paragraph 5;
d. The instruction that if applicable law “is finally interpreted” so that the interest
charged under the NOTE or other loan charges exceed legal limits, then: (1) any
such charge shall be reduced by the amount necessary to reduce the charge to be
permitted, and (2) the lender shall refund such charges to the borrower in
Paragraph 6;
e. The instruction that the lender send written notice of default in Paragraph 7(C);
f. The instruction entitling the lender to be paid back by the borrower for all costs
and expenses in Paragraph 7(E);
g. The instruction that the lender send any notices that must be given to the borrower
pursuant to the terms of the subject NOTE by either delivering it or mailing it by
first class mail in Paragraph 8; and
h. The instruction that the borrower send any notices that must be given to the lender
pursuant to the terms of the subject NOTE by either delivering it or mailing it by
first class mail in Paragraph 8.
9. The MORTGAGE also contains a provision in Paragraph 16 that states, “In the
event that any provision or clause of this Security Instrument or the Note conflicts with
4159.000Applicable Law, such conflict shall not affect other provisions of this Security Instrument or the
Note which can be given effect without the conflicting provision.”
FIRST AFFIRMATIVE DEFENSE
10. The MORTGAGE attached to Plaintiffs Complaint is inconsistent with
Plaintiff's allegations as to the ownership of the MORTGAGE and NOTE and Plaintiff's
authority to act on behalf of the owner. Plaintiff has failed to establish itself as the real party in
interest and has failed to state a cause of action.
ll. | The MORTGAGE that Plaintiff has attached an exhibit to the Complaint shows
that the lender is AMERICAN HOME MORTGAGE, not DEUTSCHE BANK.
12. Furthermore, Plaintiff failed to attach an Assignment of Mortgage as an Exhibit to
the Complaint demonstrating that Plaintiff had standing at the time the lawsuit was filed on
December 19, 2012.
13. Plaintiff does not properly own the MORTGAGE it seeks to foreclose under
Florida and/or Federal Law and pursuant to the terms of the subject Pooling and Servicing
Agreement for the Plaintiff’s trust. Thus, Plaintiff lacks standing to foreclose.
14. Plaintiff is not entitled to maintain an action if it does not own the mortgage and
hold the note which is purportedly secured by the subject mortgage. Your Construction Center.
Inc. v. Gross, 316 So. 2d 596 (FI. 4th DCA 1975); Greenwald v. Triple D Properties, Inc., 424
So. 2d 185, 187 (Fla. 4th DCA 1983).
15. Fla. R. Civ. P. 1.130(a) states “AIl...contracts...upon which an action may be
brought or defense made, or a copy thereof or a copy of the portions thereof material to the
pleadings, shall be incorporated in or attached to the pleading.”
4159.00016. Harry Pepper & Assocs., v. Lasseter, 247 So. 2nd 736, 736-737 (Fla. 3d DCA
1971) instructs the Court: “(if there) is an inconsistency between the general allegations of
material facts in the ...complaint and the specific facts revealed by the exhibit (attached or
referred to in the complaint)... they have the effect of neutralizing each allegation as against the
other, thus rendering the pleading objectionable.” See also Buck v. Kent Sec. of Broward, 638
So. 2d 1004 (Fla. 4th DCA 1994); Ginsburg v Lennar Florida Holdings, Inc., 645 So. 2d 490,
494 (Fla. 3d DCA 1994), review denied, 659 So. 2d 272 (Fla. 1995); Franz Tractor Co. v J.L
Case Co., 566 So. 2d 524, 526 (Fla. 2d DCA 1990).
17. Plaintiff was not the real party in interest on the date this action was commenced,
has not shown any authority to bring this action, has filed documents inconsistent with the
allegations of the Complaint, has failed to state a cause of action upon which relief may be
granted and has failed to show its proper standing in bringing this action.
SECOND AFFIRMATIVE DEFENSE
18. Plaintiff has charged and/or collected payments from the Defendant for attorney
fees, legal fees, litigation attorney fees, foreclosure costs, late charges, property inspection fees,
“property valuation” charges, and other charges and advances and predatory fees and charges
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 illegal charges
to the balance Plaintiff claims is due and owing under the subject NOTE and MORTGAGE
because: (a) 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 this Defendant; and/or (b) the disputed
charges and fees set out hereinabove have been and continue to be unilaterally added to the
4159.000balance of the Defendant’s home loan which charges and fees are illegal, premature and
unauthorized as the fees and charges are directly associated with this foreclosure action and
cannot legally be imposed or charged until Plaintiff provides this Defendant with obligatory post
default / pre-acceleration default loan servicing set out in Affirmative Defenses below, which
default loan servicing Plaintiff failed to provide.
THIRD AFFIRMATIVE DEFENSE
19. Plaintiff lacks proper standing to bring a cause of action because the subject
NOTE is not a negotiable instrument under Florida Statute 673.1041.
20. Specifically, the subject NOTE is not negotiable because it contains several
instructions or undertakings other than the payment of money, including:
a. The instruction that the borrower pay a late charge if the lender has not received
payment by the end of 15 calendar days after the date payment is due in
Paragraph 7(A);
b. The instruction that the lender will deliver or mail to the borrower any changes in
the interest rate and monthly payments in Paragraph 4(J);
c. The obligation that the borrower notify the lender, in writing, if borrower opts to
make a prepayment of principal in Paragraph 5;
d. The instruction that if applicable law “‘is finally interpreted” so that the interest
charged under the NOTE or other loan charges exceed legal limits, then: (1) any
such charge shall be reduced by the amount necessary to reduce the charge to be
permitted, and (2) the lender shall refund such charges to the borrower in
Paragraph 6;
e. The instruction that the lender send written notice of default in Paragraph 7(C);
4159.000f. The instruction entitling the lender to be paid back by the borrower for all costs
and expenses in Paragraph 7(E);
g. The instruction that the lender send any notices that must be given to the borrower
pursuant to the terms of the subject NOTE by either delivering it or mailing it by
first class mail in Paragraph 8; and
h. The instruction that the borrower send any notices that must be given to the lender
pursuant to the terms of the subject NOTE by either delivering it or mailing it by
first class mail in Paragraph 8.
21. Additionally, the instruction in Paragraph 16 of the MORTGAGE that
accompanies the NOTE contains a provision that is an express condition on payment which
under Florida Statute 673.1061(1)(a) renders the NOTE a conditional promise and therefore,
under Florida Statute 673.1041(1), non-negotiable.
FOURTH AFFIRMATIVE DEFENSE
22. Florida Statutes 673.3081 allows the Defendant to challenge the signatures of any
endorsement or instrument.
23. | The Defendant challenges and disputes the validity of any signature on any
instrument endorsing or assigning the subject NOTE and/or the subject MORTGAGE filed or to
be filed in this matter.
24. After any such signature is challenged in the pleadings the burden shifts to the
party claiming that the signature is valid. Genuineness of endorsements of prior holders of
negotiable instruments is not presumed and when properly put in issue by pleadings, the party
seeking to establish status of holder of order paper must prove validity of those endorsements on
which his status depends. See Eder v Fisher, 183 So. 2d 39 (Fla. 2d 1965).
4159.000FIFTH AFFIRMATIVE DEFENSE
25. Plaintiff failed to provide the Defendant with legitimate and non-predatory access
to the debt management and relief that must be made available to borrowers, including the
Defendant, pursuant to and in accordance with the applicable Pooling and Servicing Agreement
or other trust agreement that controls and applies to the subject MORTGAGE loan. Plaintiff's
non-compliance with the conditions precedent to foreclosure imposed on the Plaintiff pursuant to
the applicable Pooling and Servicing Agreement is an actionable event that makes the filing of
this foreclosure premature based on a failure of a contractual and/or equitable condition
precedent to foreclosure which denies Plaintiff's ability to carry out this foreclosure. Plaintiff
cannot legally pursue foreclosure unless and until Plaintiff demonstrates compliance with the
foreclosure prevention servicing imposed by the subject pooling and servicing or trust agreement
under which the Plaintiff allegedly owns the subject MORTGAGE loan.
SIXTH AFFIRMATIVE DEFENSE
26. Plaintiff has failed to satisfy all conditions precedent to bringing this action and
enforcing the loan documents under Florida law. Specifically, Plaintiff failed to provide the
Defendant with a Notice of Default and Intent to Accelerate as required by and/or that complies
with Paragraph 22 of the subject MORTGAGE. Plaintiff has failed to attach copies of such
notice to the Complaint. Furthermore, Plaintiff has failed to provide proof of mailing of any
Notice of Default and Intent to Accelerate. As a result, the Defendant has been denied a good
faith opportunity, pursuant to the MORTGAGE and the servicing obligations of the Plaintiff, to
avoid acceleration and this foreclosure.
SEVENTH AFFIRMATIVE DEFENSE
27. The Defendant is entitled to a release, satisfaction and/or setoff of the NOTE and
the MORTGAGE that is the subject of this foreclosure action to the extent that the Plaintiff has
4159.000
10been paid on the underlying obligation or has no legal interest therein or in the NOTE or
MORTGAGE, or does not have the lawful possession of the NOTE or MORTGAGE. It is upon
the Defendant’s information and belief that the mortgage NOTE has been paid in whole or in
part by one or more undisclosed third parties who, prior to or contemporaneously with or after
the closing on the loan, paid the originating lender in exchange for certain unrecorded rights to
the revenues arising out of the loan documents.
EIGHTH AFFIRMATIVE DEFENSE
28. Plaintiff has failed to join an indispensable party, i.e. the holder in due course of
the promissory NOTE at the time this action was filed and if the MORTGAGE has not been
assigned to Plaintiff and the lender does not have the NOTE then Plaintiff lacks standing to bring
suit because it has suffered no legally cognizable injury upon which relief can be granted.
NINTH AFFIRMATIVE DEFENSE
29. The Plaintiff's claims are barred, in whole or in part, by the doctrine of unclean
hands. The Plaintiff comes to court with unclean hands and is prohibited by reason thereof from
obtaining equitable relief of foreclosure from this Court. The Plaintiff's unclean hands result
from the Plaintiff's improvident and predatory intentional failure to comply with the material
terms of the MORTGAGE and NOTE, including Plaintiff's failure to provide the Defendants
with a Notice of Default and Intent to Accelerate as required by and/or that complies with
Paragraph 22 of the subject MORTGAGE; the failure to comply with the default loan servicing
requirements that apply to this loan, all as described herein below. As a matter of equity, this
Court should refuse to foreclose this MORTGAGE because acceleration of the NOTE would be
inequitable, unjust and the circumstances of this case render acceleration unconscionable. This
Court should refuse the acceleration and deny foreclosure because Plaintiff has waived the right
to acceleration or is estopped from doing so because of misleading conduct and unfulfilled
4159.000contractual and equitable conditions precedent.
TENTH AFFIRMATIVE DEFENSE
30. Plaintiff does not own the MORTGAGE it seeks to foreclose under Florida law,
Federal Law, State of Delaware Law or New York Law, and pursuant to the terms of the subject
Pooling and Servicing Agreement for the Plaintiffs trust. Based on information and belief, an
applicable copy of the subject Pooling and Servicing Agreement is available on the SEC’s
website which is located at http://www.sec.gov/Archives/edgar/data/138874 1/0000882377
07000785/d644253ex4_1.htm.
31. Based upon information and belief, Defendant’s’ MORTGAGE was entered into a
mortgaged backed securitized trust and Plaintiff, as trustee, or some other prior entity or trustee
who controlled the loan at issue in the Complaint has failed to abide by the conditions of the
pooling and servicing agreement and mortgage transfer agreement governing said trust.
32. Specifically, the Plaintiff failed to:
a. Comply with REMIC tax code provisions, including, 26 USC §§860A-G;
b. Transfer the NOTE by manual or blank endorsement, with all intervening
endorsements showing a complete chain of endorsement from the originator to the
person endorsing the NOTE in compliance with Section 2.01(a)(i) of the Pooling
and Servicing Agreement;
c. File any and all UCC Financing statements in compliance with Section 2.01(a)(ix)
of the Pooling and Servicing Agreement;
d. Transfer the subject MORTGAGE and NOTE to the trust on or before the Closing
Date as prescribed by the subject Pooling and Servicing Agreement.
33. Pursuant to Article 1 §1.01 of the applicable Pooling and Servicing Agreement,
the Closing Date for any transfer into the corpus of the AMERICAN HOME MORTGAGE
4159.000ASSETS TRUST 2007-2, MORTGAGE-BACKED PASS-THROUGH CERTIFICATES 2007-2
is February 28, 2007. No transfer could occur after said Closing Date.
34. Here, the alleged Assignment of Mortgage, from MERS AS NOMINEE FOR
AMERICAN HOME MORTGAGE to DEUTSCHE BANK in this action was executed on
September 28, 2012.
35. Since the subject NOTE and MORTGAGE were not transferred into the trust
prior to February 28, 2007, the Plaintiff lacks proper standing to file this lawsuit and the alleged
transfer of the NOTE and MORTGAGE to the trust is void.
36. Any other action by a trust constitutes ultra vires action that may not be remedied
in equity.
ELEVENTH AFFIRMATIVE DEFENSE
37. The facts having not been fully developed, the Defendant affirmatively pleads any
of the following defenses that may become applicable to this action: accord and satisfaction,
assumption of risk, coercion, contract, contributory negligence, discharge in bankruptcy, duress,
economic duress, election of remedies, estoppel, failure of consideration, illegality, laches,
payment, release, res judicata, satisfaction, setoff, statute of frauds, waiver, the failure of Plaintiff
to mitigate damages or take reasonable steps to avoid damages, the failure of Plaintiff to exercise
ordinary care, and any other matter constituting an avoidance or affirmative defense.
TWELFTH AFFIRMATIVE DEFENSE
38. The Defendant reserves the right to amend these affirmative defenses as discovery
of further defenses are identified.
4159.000WHEREFORE, Defendant, JEVON KEARSE, demands that this Court to dismiss with
prejudice the above titled action and an award of attorney fees and costs, and such other relief
allowable by law and/or equity.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Answer and Affirmative Defenses has
been served to all parties identified on the attached Service List in the manner specified and to
the Clerk of the Court by Courier on this 23rd day of October, 2013.
OPPENHEIM PILELSKY, PA
Attorneys for Defendant,
JEVON KEARSE
By: /s/ Mare A. Marra
Marc A. Marra, Esq.
Florida Bar No.: 0091185
2500 Weston Road, Suite 404
Weston, Florida 33331
Phone: (954) 384-6114
Facsimile: (954) 384-6115
E-mail: marc@oplaw.net
Service E-mail : service@oplaw.net
4159.000SERVICE LIST
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR AMERICAN
HOME MORTGAGE ASSETS TRUST 2007-2, MORTGAGE-BACKED PASS-
THROUGH CERTIFICATES 2007-2, v. JEVON KEARSE, ET AL.
CASE NO.: CACE12035066
Sent via E-mail & Facsimile to:
Matthew Forbes Braunschweig, Esq.,
Florida Foreclosure Attorneys, PLLC,
Attorneys for Plaintiff
601 Cleveland Street, Suite 690,
Clearwater, FL 33755
Facsimile to: 727-446-1723
E-mail to: emailservice@ffapllc.com
4159.000
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* FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 10/23/2013 11:52:43 AM.**** Electronically Filed 10/23/2013 11:52:42 AM ET IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR BROWARD COUNTY, FLORIDA DEUTSCHE BANK NATIONAL TRUST COMPANY, CASE NO.: CACE12035066 AS TRUSTEE FOR AMERICAN HOME MORTGAGE FL BAR NO: 0091185 ASSETS TRUST 2007-2, MORTGAGE-BACKED PASS-THROUGH CERTIFICATES 2007-2, Plaintiff, vs. JEVON KEARSE; ET AL Defendants. / DEFENDANT, JEVON KEARSE’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT ANSWER Defendant, JEVON KEARSE (“J. KEARSE” or the “Defendant”), by and through the undersigned, files this Answer and responsive pleading to the Complaint to Foreclose Mortgage filed by Plaintiff DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR AMERICAN HOME MORTGAGE ASSETS TRUST 2007-2, MORTGAGE-BACKED PASS- THROUGH CERTIFICATES 2007-2, (“DEUTSCHE BANK” or “Plaintiff’) and states as follows to each and every paragraph of the Complaint: COUNTI 1. J. KEARSE admits the allegations contained in Paragraph 1 of the Complaint. 2. J. KEARSE admits that the Mortgage was recorded in Official Records Book 43392 at page 606 of the Public Records of BROWARD County, Florida. J. KEARSE denies the remaining allegations contained in Paragraph 2 of the Complaint and demands strict proof thereof. 3. J. KEARSE denies the allegations contained in Paragraph 3 of the Complaint and 4159.000demands strict proof thereof. 4. J. KEARSE is without knowledge sufficient to admit or deny the allegations contained in Paragraph 4 of the Complaint and therefore denies the allegations and demands strict proof thereof. 5. J. KEARSE is without knowledge sufficient to admit or deny the allegations contained in Paragraph 5 of the Complaint and therefore denies the allegations and demands strict proof thereof. 6. J. KEARSE denies the allegations contained in Paragraph 6 of the Complaint and demands strict proof thereof. 7. J. KEARSE denies the allegations contained in Paragraph 7 of the Complaint and demands strict proof thereof. 8. J. KEARSE is without knowledge sufficient to admit or deny the allegations contained in Paragraph 8 of the Complaint and therefore denies the allegations and demands strict proof thereof. 9. J. KEARSE denies the allegations contained in Paragraph 9 of the Complaint and demands strict proof thereof. 10. ‘J. KEARSE admits the allegations contained in Paragraph 10 of the Complaint. 11. J. KEARSE is without knowledge sufficient to admit or deny the allegations contained in Paragraph 11 of the Complaint and therefore denies the allegations and demands strict proof thereof. 12. J. KEARSE is without knowledge sufficient to admit or deny the allegations contained in Paragraph 12 of the Complaint and therefore denies the allegations and demands strict proof thereof. 4159.00013. J. KEARSE is without knowledge sufficient to admit or deny the allegations contained in Paragraph 13 of the Complaint and therefore denies the allegations and demands strict proof thereof. 14. J. KEARSE is without knowledge sufficient to admit or deny the allegations contained in Paragraph 14 of the Complaint and therefore denies the allegations and demands strict proof thereof. 15. J. KEARSE is without knowledge sufficient to admit or deny the allegations contained in Paragraph 15 of the Complaint and therefore denies the allegations and demands strict proof thereof. 16. J. KEARSE is without knowledge sufficient to admit or deny the allegations contained in Paragraph 16 of the Complaint and therefore denies the allegations and demands strict proof thereof. WHEREFORE, Defendant, JEVON KEARSE, demands that this Court to dismiss with prejudice the above titled action and an award of attorney fees and costs, and such other relief allowable by law and/or equity. AFFIRMATIVE DEFENSES Defendant, JEVON KEARSE (“J. KEARSE” or the “Defendant”), by and through the undersigned, files the following Affirmative Defenses in response to the Complaint filed by Plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR AMERICAN HOME MORTGAGE ASSETS TRUST 2007-2, MORTGAGE-BACKED PASS- THROUGH CERTIFICATES 2007-2, (“DEUTSCHE BANK” or “Plaintiff’) and states the following affirmative defenses: STATEMENT OF FACTS AS TO AFFIRMATIVE DEFENSES 4159.0001. On December 19, 2012, Plaintiff filed a Mortgage Foreclosure Complaint (“the Complaint’) against the Defendant, J. KEARSE, regarding the following property: LOT 21, BLOCK 10 OF THE HILLSBORO SHORES SECTION "A", ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 21, AT PAGE 14 OF THE PUBLIC RECORDS OF BROWARD COUNTY. a/k/a 2310 Bay Drive, Pompano Beach, FL 33062 (the "PROPERTY"). 2. On or about December 19, 2006, J. KEARSE allegedly executed and delivered a promissory note (“NOTE”) and a mortgage (“MORTGAGE”) encumbering the PROPERTY to the Lender, AMERICAN HOME MORTGAGE. 3. The alleged MORTGAGE was recorded on January 8, 2007 in Official Records Book 43392 at page 606 of the Public Records of BROWARD County, Florida. The alleged MORTGAGE shows that the Lender is AMERICAN HOME MORTGAGE. 4. DEUTSCHE BANK alleges in Paragraph 3 of the Complaint that it is the holder of the NOTE and is entitled to enforce the NOTE and MORTGAGE pursuant to Florida Statute §673.3011. 5. In the Complaint, the copies of the MORTGAGE and NOTE attached as Exhibits were for the benefit of AMERICAN HOME MORTGAGE, not DEUTSCHE BANK. 6. The Complaint contains an Assignment of Mortgage indicating an assignment of the subject MORTGAGE from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (“MERS”) AS NOMINEE FOR AMERICAN HOME MORTGAGE to DEUTSCHE BANK (the “AOM”). 7. The AOM was executed on September 28, 2012, and the assignment of the subject MORTGAGE took place on or after February 28, 2007. 8. The NOTE is endorsed in blank, and contains the following provisions: 4159.000a. The instruction that the borrower pay a late charge if the lender has not received payment by the end of 15 calendar days after the date payment is due in Paragraph 7(A); b. The instruction that the lender will deliver or mail to the borrower any changes in the interest rate and monthly payments in Paragraph 4(J); c. The obligation that the borrower notify the lender, in writing, if borrower opts to make a prepayment of principal in Paragraph 5; d. The instruction that if applicable law “is finally interpreted” so that the interest charged under the NOTE or other loan charges exceed legal limits, then: (1) any such charge shall be reduced by the amount necessary to reduce the charge to be permitted, and (2) the lender shall refund such charges to the borrower in Paragraph 6; e. The instruction that the lender send written notice of default in Paragraph 7(C); f. The instruction entitling the lender to be paid back by the borrower for all costs and expenses in Paragraph 7(E); g. The instruction that the lender send any notices that must be given to the borrower pursuant to the terms of the subject NOTE by either delivering it or mailing it by first class mail in Paragraph 8; and h. The instruction that the borrower send any notices that must be given to the lender pursuant to the terms of the subject NOTE by either delivering it or mailing it by first class mail in Paragraph 8. 9. The MORTGAGE also contains a provision in Paragraph 16 that states, “In the event that any provision or clause of this Security Instrument or the Note conflicts with 4159.000Applicable Law, such conflict shall not affect other provisions of this Security Instrument or the Note which can be given effect without the conflicting provision.” FIRST AFFIRMATIVE DEFENSE 10. The MORTGAGE attached to Plaintiffs Complaint is inconsistent with Plaintiff's allegations as to the ownership of the MORTGAGE and NOTE and Plaintiff's authority to act on behalf of the owner. Plaintiff has failed to establish itself as the real party in interest and has failed to state a cause of action. ll. | The MORTGAGE that Plaintiff has attached an exhibit to the Complaint shows that the lender is AMERICAN HOME MORTGAGE, not DEUTSCHE BANK. 12. Furthermore, Plaintiff failed to attach an Assignment of Mortgage as an Exhibit to the Complaint demonstrating that Plaintiff had standing at the time the lawsuit was filed on December 19, 2012. 13. Plaintiff does not properly own the MORTGAGE it seeks to foreclose under Florida and/or Federal Law and pursuant to the terms of the subject Pooling and Servicing Agreement for the Plaintiff’s trust. Thus, Plaintiff lacks standing to foreclose. 14. Plaintiff is not entitled to maintain an action if it does not own the mortgage and hold the note which is purportedly secured by the subject mortgage. Your Construction Center. Inc. v. Gross, 316 So. 2d 596 (FI. 4th DCA 1975); Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983). 15. Fla. R. Civ. P. 1.130(a) states “AIl...contracts...upon which an action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading.” 4159.00016. Harry Pepper & Assocs., v. Lasseter, 247 So. 2nd 736, 736-737 (Fla. 3d DCA 1971) instructs the Court: “(if there) is an inconsistency between the general allegations of material facts in the ...complaint and the specific facts revealed by the exhibit (attached or referred to in the complaint)... they have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable.” See also Buck v. Kent Sec. of Broward, 638 So. 2d 1004 (Fla. 4th DCA 1994); Ginsburg v Lennar Florida Holdings, Inc., 645 So. 2d 490, 494 (Fla. 3d DCA 1994), review denied, 659 So. 2d 272 (Fla. 1995); Franz Tractor Co. v J.L Case Co., 566 So. 2d 524, 526 (Fla. 2d DCA 1990). 17. Plaintiff was not the real party in interest on the date this action was commenced, has not shown any authority to bring this action, has filed documents inconsistent with the allegations of the Complaint, has failed to state a cause of action upon which relief may be granted and has failed to show its proper standing in bringing this action. SECOND AFFIRMATIVE DEFENSE 18. Plaintiff has charged and/or collected payments from the Defendant for attorney fees, legal fees, litigation attorney fees, foreclosure costs, late charges, property inspection fees, “property valuation” charges, and other charges and advances and predatory fees and charges 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 illegal charges to the balance Plaintiff claims is due and owing under the subject NOTE and MORTGAGE because: (a) 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 this Defendant; and/or (b) the disputed charges and fees set out hereinabove have been and continue to be unilaterally added to the 4159.000balance of the Defendant’s home loan which charges and fees are illegal, premature and unauthorized as the fees and charges are directly associated with this foreclosure action and cannot legally be imposed or charged until Plaintiff provides this Defendant with obligatory post default / pre-acceleration default loan servicing set out in Affirmative Defenses below, which default loan servicing Plaintiff failed to provide. THIRD AFFIRMATIVE DEFENSE 19. Plaintiff lacks proper standing to bring a cause of action because the subject NOTE is not a negotiable instrument under Florida Statute 673.1041. 20. Specifically, the subject NOTE is not negotiable because it contains several instructions or undertakings other than the payment of money, including: a. The instruction that the borrower pay a late charge if the lender has not received payment by the end of 15 calendar days after the date payment is due in Paragraph 7(A); b. The instruction that the lender will deliver or mail to the borrower any changes in the interest rate and monthly payments in Paragraph 4(J); c. The obligation that the borrower notify the lender, in writing, if borrower opts to make a prepayment of principal in Paragraph 5; d. The instruction that if applicable law “‘is finally interpreted” so that the interest charged under the NOTE or other loan charges exceed legal limits, then: (1) any such charge shall be reduced by the amount necessary to reduce the charge to be permitted, and (2) the lender shall refund such charges to the borrower in Paragraph 6; e. The instruction that the lender send written notice of default in Paragraph 7(C); 4159.000f. The instruction entitling the lender to be paid back by the borrower for all costs and expenses in Paragraph 7(E); g. The instruction that the lender send any notices that must be given to the borrower pursuant to the terms of the subject NOTE by either delivering it or mailing it by first class mail in Paragraph 8; and h. The instruction that the borrower send any notices that must be given to the lender pursuant to the terms of the subject NOTE by either delivering it or mailing it by first class mail in Paragraph 8. 21. Additionally, the instruction in Paragraph 16 of the MORTGAGE that accompanies the NOTE contains a provision that is an express condition on payment which under Florida Statute 673.1061(1)(a) renders the NOTE a conditional promise and therefore, under Florida Statute 673.1041(1), non-negotiable. FOURTH AFFIRMATIVE DEFENSE 22. Florida Statutes 673.3081 allows the Defendant to challenge the signatures of any endorsement or instrument. 23. | The Defendant challenges and disputes the validity of any signature on any instrument endorsing or assigning the subject NOTE and/or the subject MORTGAGE filed or to be filed in this matter. 24. After any such signature is challenged in the pleadings the burden shifts to the party claiming that the signature is valid. Genuineness of endorsements of prior holders of negotiable instruments is not presumed and when properly put in issue by pleadings, the party seeking to establish status of holder of order paper must prove validity of those endorsements on which his status depends. See Eder v Fisher, 183 So. 2d 39 (Fla. 2d 1965). 4159.000FIFTH AFFIRMATIVE DEFENSE 25. Plaintiff failed to provide the Defendant with legitimate and non-predatory access to the debt management and relief that must be made available to borrowers, including the Defendant, pursuant to and in accordance with the applicable Pooling and Servicing Agreement or other trust agreement that controls and applies to the subject MORTGAGE loan. Plaintiff's non-compliance with the conditions precedent to foreclosure imposed on the Plaintiff pursuant to the applicable Pooling and Servicing Agreement is an actionable event that makes the filing of this foreclosure premature based on a failure of a contractual and/or equitable condition precedent to foreclosure which denies Plaintiff's ability to carry out this foreclosure. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff demonstrates compliance with the foreclosure prevention servicing imposed by the subject pooling and servicing or trust agreement under which the Plaintiff allegedly owns the subject MORTGAGE loan. SIXTH AFFIRMATIVE DEFENSE 26. Plaintiff has failed to satisfy all conditions precedent to bringing this action and enforcing the loan documents under Florida law. Specifically, Plaintiff failed to provide the Defendant with a Notice of Default and Intent to Accelerate as required by and/or that complies with Paragraph 22 of the subject MORTGAGE. Plaintiff has failed to attach copies of such notice to the Complaint. Furthermore, Plaintiff has failed to provide proof of mailing of any Notice of Default and Intent to Accelerate. As a result, the Defendant has been denied a good faith opportunity, pursuant to the MORTGAGE and the servicing obligations of the Plaintiff, to avoid acceleration and this foreclosure. SEVENTH AFFIRMATIVE DEFENSE 27. The Defendant is entitled to a release, satisfaction and/or setoff of the NOTE and the MORTGAGE that is the subject of this foreclosure action to the extent that the Plaintiff has 4159.000 10been paid on the underlying obligation or has no legal interest therein or in the NOTE or MORTGAGE, or does not have the lawful possession of the NOTE or MORTGAGE. It is upon the Defendant’s information and belief that the mortgage NOTE has been paid in whole or in part by one or more undisclosed third parties who, prior to or contemporaneously with or after the closing on the loan, paid the originating lender in exchange for certain unrecorded rights to the revenues arising out of the loan documents. EIGHTH AFFIRMATIVE DEFENSE 28. Plaintiff has failed to join an indispensable party, i.e. the holder in due course of the promissory NOTE at the time this action was filed and if the MORTGAGE has not been assigned to Plaintiff and the lender does not have the NOTE then Plaintiff lacks standing to bring suit because it has suffered no legally cognizable injury upon which relief can be granted. NINTH AFFIRMATIVE DEFENSE 29. The Plaintiff's claims are barred, in whole or in part, by the doctrine of unclean hands. The Plaintiff comes to court with unclean hands and is prohibited by reason thereof from obtaining equitable relief of foreclosure from this Court. The Plaintiff's unclean hands result from the Plaintiff's improvident and predatory intentional failure to comply with the material terms of the MORTGAGE and NOTE, including Plaintiff's failure to provide the Defendants with a Notice of Default and Intent to Accelerate as required by and/or that complies with Paragraph 22 of the subject MORTGAGE; the failure to comply with the default loan servicing requirements that apply to this loan, all as described herein below. As a matter of equity, this Court should refuse to foreclose this MORTGAGE because acceleration of the NOTE would be inequitable, unjust and the circumstances of this case render acceleration unconscionable. This Court should refuse the acceleration and deny foreclosure because Plaintiff has waived the right to acceleration or is estopped from doing so because of misleading conduct and unfulfilled 4159.000contractual and equitable conditions precedent. TENTH AFFIRMATIVE DEFENSE 30. Plaintiff does not own the MORTGAGE it seeks to foreclose under Florida law, Federal Law, State of Delaware Law or New York Law, and pursuant to the terms of the subject Pooling and Servicing Agreement for the Plaintiffs trust. Based on information and belief, an applicable copy of the subject Pooling and Servicing Agreement is available on the SEC’s website which is located at http://www.sec.gov/Archives/edgar/data/138874 1/0000882377 07000785/d644253ex4_1.htm. 31. Based upon information and belief, Defendant’s’ MORTGAGE was entered into a mortgaged backed securitized trust and Plaintiff, as trustee, or some other prior entity or trustee who controlled the loan at issue in the Complaint has failed to abide by the conditions of the pooling and servicing agreement and mortgage transfer agreement governing said trust. 32. Specifically, the Plaintiff failed to: a. Comply with REMIC tax code provisions, including, 26 USC §§860A-G; b. Transfer the NOTE by manual or blank endorsement, with all intervening endorsements showing a complete chain of endorsement from the originator to the person endorsing the NOTE in compliance with Section 2.01(a)(i) of the Pooling and Servicing Agreement; c. File any and all UCC Financing statements in compliance with Section 2.01(a)(ix) of the Pooling and Servicing Agreement; d. Transfer the subject MORTGAGE and NOTE to the trust on or before the Closing Date as prescribed by the subject Pooling and Servicing Agreement. 33. Pursuant to Article 1 §1.01 of the applicable Pooling and Servicing Agreement, the Closing Date for any transfer into the corpus of the AMERICAN HOME MORTGAGE 4159.000ASSETS TRUST 2007-2, MORTGAGE-BACKED PASS-THROUGH CERTIFICATES 2007-2 is February 28, 2007. No transfer could occur after said Closing Date. 34. Here, the alleged Assignment of Mortgage, from MERS AS NOMINEE FOR AMERICAN HOME MORTGAGE to DEUTSCHE BANK in this action was executed on September 28, 2012. 35. Since the subject NOTE and MORTGAGE were not transferred into the trust prior to February 28, 2007, the Plaintiff lacks proper standing to file this lawsuit and the alleged transfer of the NOTE and MORTGAGE to the trust is void. 36. Any other action by a trust constitutes ultra vires action that may not be remedied in equity. ELEVENTH AFFIRMATIVE DEFENSE 37. The facts having not been fully developed, the Defendant affirmatively pleads any of the following defenses that may become applicable to this action: accord and satisfaction, assumption of risk, coercion, contract, contributory negligence, discharge in bankruptcy, duress, economic duress, election of remedies, estoppel, failure of consideration, illegality, laches, payment, release, res judicata, satisfaction, setoff, statute of frauds, waiver, the failure of Plaintiff to mitigate damages or take reasonable steps to avoid damages, the failure of Plaintiff to exercise ordinary care, and any other matter constituting an avoidance or affirmative defense. TWELFTH AFFIRMATIVE DEFENSE 38. The Defendant reserves the right to amend these affirmative defenses as discovery of further defenses are identified. 4159.000WHEREFORE, Defendant, JEVON KEARSE, demands that this Court to dismiss with prejudice the above titled action and an award of attorney fees and costs, and such other relief allowable by law and/or equity. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Answer and Affirmative Defenses has been served to all parties identified on the attached Service List in the manner specified and to the Clerk of the Court by Courier on this 23rd day of October, 2013. OPPENHEIM PILELSKY, PA Attorneys for Defendant, JEVON KEARSE By: /s/ Mare A. Marra Marc A. Marra, Esq. Florida Bar No.: 0091185 2500 Weston Road, Suite 404 Weston, Florida 33331 Phone: (954) 384-6114 Facsimile: (954) 384-6115 E-mail: marc@oplaw.net Service E-mail : service@oplaw.net 4159.000SERVICE LIST DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR AMERICAN HOME MORTGAGE ASSETS TRUST 2007-2, MORTGAGE-BACKED PASS- THROUGH CERTIFICATES 2007-2, v. JEVON KEARSE, ET AL. CASE NO.: CACE12035066 Sent via E-mail & Facsimile to: Matthew Forbes Braunschweig, Esq., Florida Foreclosure Attorneys, PLLC, Attorneys for Plaintiff 601 Cleveland Street, Suite 690, Clearwater, FL 33755 Facsimile to: 727-446-1723 E-mail to: emailservice@ffapllc.com 4159.000