Answer: WELLS FARGO BANK NA Plaintiff vs Moreno, Alcides et al Defendant

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                                Filing # 42937652 E-Filed 06/17/2016 10:18:15 PM

IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND
FOR LEE COUNTY, FLORIDA CIVIL ACTION

WELLS FARGO BANK N.A.,

Plaintiff(s),
vs. CASE NO: 2015-CA-51285
ALCIDES MORENO et al.,

Defendant(s).

/

DEFENDANTS’ ANSWER, AFIRMATIVE DEFENSES, AND DEMAND FOR
ATTORNEYS FEES

COME NOW the Defendants ALCIDES MORENO and DEBORA
MORENO, by and through their undersigned attorney, who file this their Answer
to the complaint as follows:

1. Admitted.

2. Admitted except for denial that “Copies of the Note and Mortgage are
attached...”

3. Without knowledge and therefore denied.

4. Admitted.

5. Objection as requires a legal conclusion, and therefore denied.

6. Denied.

7. Denied.

8. Denied.

9. Without knowledge and therefore denied.

10. Denied.

11.Without knowledge and therefore denied.

12. Without knowledge and therefore denied.

eFiled Lee County Clerk of Courts Page 113. Without knowledge and therefore denied.
14. Denied.
ATTORNEYS FEES
The Defendant has employed the undersigned attorney to represent him in this
action, has agreed to pay a reasonable attorneys fees therefore, and Defendant
demands attorneys fees and costs pursuant to the attorneys fees allowable as
set forth in the note and mortgage attached to the complaint, and the reciprocity

allowed thereby under Florida law.

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE
(Notice of Contesting Authenticity)

Pursuant to §673.3081 Florida Statutes, Defendants specifically deny the
authenticity of any document presented as the original promissory Note.
Defendants also specifically deny the authenticity of any signatures, and
the authority of any person or persons making them, on the promissory
Note and Mortgage and any documents related to them, including, but not
limited to, any endorsement of the Note or signature on the assignment of
mortgage or the Allonge.

SECOND AFFIRMATIVE DEFENSE
(Plaintiff Failed to Comply With Conditions Precedent)

Plaintiff must first show that it has performed under the terms of the
contract in order to enforce the mortgage contract. The burden of proving
the performance of conditions precedent is on the Plaintiff. See e.g.
Sheriff of Orange County v. Boulthee, 595 So. 2d 985, 987 (Fla. 5th DCA
1992) (Proper denial of conditions precedent shifts burden to plaintiff to
prove performance. ); Fidelity & Cas. Co. of New York v. Tiedtke, 207 So.
2d 40, 42 (Fla. 4th DCA 1968), quashed on other grounds, 222 So. 2d
206 (Fla.1969)(Upon proper denial of condition precedent, plaintiff had
burden to prove performance of condition precedent.); Griffin v. American
General Life And Accident Ins. Co., 752 So. 2d 621, 623 (Fla. 2d DCA
1999)("[T]he party seeking to enforce a contract has the burden to prove
the satisfaction of a condition precedent."); Berg v. Bridle Path

eFiled Lee County Clerk of Courts Page 2Homeowners Ass'n, 809 So. 2d 32, 34 (Fla. 4th DCA 2002); McKenna v.
Camino Real, 877 So. 2d 900 (Fla. 4th DCA 2004).

+ Plaintiff failed to comply with conditions precedent of the Note and
Mortgage.

Plaintiff failed to satisfy all conditions precedent as to notice for any
alleged default. Specifically, paragraph 22 of the Mortgage attached to
Plaintiffs Amended Complaint provides:

Defendants, therefore, allege Plaintiff failed to comply with these
requirements, and further that any purported notice of acceleration does
not contain the required language.

THIRD AFFIRMATIVE DEFENSE
(Plaintiff Lacks Standing)

Plaintiff lacks standing to maintain this action. Lack of standing may be
raised by affirmative defense. Glynn v. First Union Nat. Bank, 912 So. 2d
357 (Fla. 4th DCA 2005); Kissman v. Panizzi, 891 So. 2d 1147, 1150 (Fla.
4th DCA 2005).

FOURTH AFFIRMATIVE DEFENSE
(Plaintiff's Equitable Action is Barred by Unclean Hands)

Plaintiff seeks to invoke the equitable jurisdiction of this Court with
“unclean hands” and therefore is not entitled to foreclose on the subject
property. Foreclosure is an equitable remedy, and the doctrine of unclean
hands therefore applies. Limner v. Country Pines Condominium Ass‘n.,
709 So. 2d 154 (Fla. 4th DCA 1998). Foreclosure can be denied if the
party seeking to enforce the note has unclean hands or if the foreclosure
would be unconscionable. Knight Energy Services, Inc. v. Amoco Oil Co.,
660 So. 2d 786 (Fla. 4th DCA 1995). In this case, the Plaintiff has failed to
offer a proper HAMP modification in accordance with the terms as set
forth for that governmental program and Defendants qualify therefore and
are entitled thereto.

FIFTH AFFIRMATIVE DEFENSE
Failure to comply with a condition precedent

As a complete and separate affirmative defense, Defendant alleges

that Plaintiff has failed to provide the Defendant with notice pursuant to
Florida Statutes 559.715 at least 30 days prior to instituting this suit.

eFiled Lee County Clerk of Courts Page 3SIXTH AFFIRMATIVE DEFENSE

As a complete and separate affirmative defense, Defendant alleges
that the notice required to be given by the Plaintiff was never given, or
that the notice was improper in form or delivery.

CERTIFICATE OF SERVICE

| HEREBY CERTIFY that a copy of the foregoing has been sent by email
service to attorney for Plaintiff Sheri Alter, Esq. , for Aldridge Pite LLP, at
servicemail@aldridgepite.com on this 17th. day of June 2016

/s/ Bradley Lang

BRADLEY LANG, ESQUIRE
FBN 085650

Attorney for Defendants

P.O. Box 834

Naples, FL 34106

(239) 963-7325
attorneybradleylang@reagan.com

eFiled Lee County Clerk of Courts Page 4