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Filing # 60946011 E-Filed 08/25/2017 05:24:42 PM
IN THE CIRCUIT COURT OF THE TWENTHETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
U.S. BANK, NATIONAL ASSOCIATION,
Plaintiff,
ve
Case No. 17-CA-100
THOMAS F. LAMATRICE, et al.,
Defendants.
/
ANSWER AND AFFIRMATIVE DERENSES
Defendant, THOMAS F. LAMATRICE, by and through undersigned counsel, hereby
respectfully files this Answer to Plaintiff's Complaint and states:
1.
ua
5.
Admitted for jurisdictional purposes. Otherwise, denied.
Admitted for venue purposes. Otherwise, denied.
Denied.
Denied.
Denied. Specifically, and without limitation, Plaintiff failed to give notice of the
alleged default and an opportunity to cure, as required by paragraphs 15, 20 and 22 of the
subject mortgage, Even if the notice had been sent, it did not contain the information required,
as it did not come from the Lender, did not specify the default, the action required to cure the
default, that failure to cure the default would result in foreclosure by judicial proceeding, nor
did it inform Defendant(s) of the right to reinstate after acceleration. Further, Plaintiff failed to
comply with the requirements of the National Housing Act, 12 U.S.C§ 1701x(c)(5), under
which Plaintiff is required to complete pre-foreclosure counseling with the Defendant(s).
Plaintiff failed to comply with 15 USC 1641(g). Further, Plaintiff or its servicer was not the
original servicer yet failed to give written notice of a change of servicer, as required by
paragraph 20 of the mortgage and 12 U.S.C. 2605; even if such a notice had been given, it didnot contain the information mandated by the statute, in particular, the effective date of the
transfer of servicing, the name, address, and toll-free or collect call telephone number of the
transferee servicer, the name and toll free or collect call telephone number of an individual
employed by the transferee servicer that can be contacted by the borrower to answer inquiries
related to the transfer of servicing, the date on which the transferor servicer will cease to accept
payments, the date on which the transferee servicer will begin to accept payments, any
information concerning the effect the transfer may have on the terms of insurance and what the
borrower must do to maintain coverage, and a statement that the transfer of servicing does not
affect the security instrument other than terms directly related to the servicing of the loan.
Moreover, any attempts to collect for forced-placed insurance are not viable, as Plaintiff or its
servicer did not comply with the notice requirements of 12 U.S.C. 2605(1)(1), in particular, the
notices by first class mail conteniplated by subsections (A)-(B) of the statute. Finally, Plaintiff
failed to comply with HAMP requirements.
6. Denied.
COUNTI
7 Denied,
8. Denied.
9. Denied. Specifically, and without limitation, Defendant denies the allegations set
forth and denies the validity and authenticity of the Lost Note Affidavit, referenced therein as
being attached to the Complaint as part of Composite Exhibit A, and denies all signatures and
endorsements and the authority to place such signatures and endorsements, thereon.
10. Denied.
ll. Denied.
12. Denied.COUNT I
13. Denied. Specifically, and without limitation, Defendant denies the allegations set
forth and denies the validity and authenticity of the Mortgage, referenced therein as being
attached to the Complaint as part of Composite Exhibit A, and denies all signatures, thereon.
14. Denied. Specifically, and without limitation, Defendant denies the allegations set
forth and denies the validity and authenticity of the Assignment of Mortgage, referenced therein
as being attached to the Complaint as part of Composite Exhibit A, and denies all signatures,
thereon.
15. Denied. Specifically, and without limitation, Defendant denies the allegations set
forth and denies the validity and authenticity of the Lost Note Affidavit, referenced therein as
being attached to the Complaint as part of Composite Exhibit A, and denies all signatures and
endorsements and the authority to place such signatures and endorsements, thereon.
16. Admitted.
17. Denied.
18. Denied.
19, Denied.
20. Denied.
21. Denied.
GENERAL DENIAL
22. To the extent not expressly admitted herein, Defendant generally denies the
allegations contained within the Plaintiff's Complaint and demand strict proof thereof as required
by Florida’s Constitution, Statutes, Laws and Rules of Procedure. Defendant reserves the right
to amend this answer to assert any additional counterclaims or causes of action he may haveagainst Plaintiff and to avert any affirmative defenses available, within the time allowed and/or
by the at the discretion of the Court.
23. Defendant demands a trial by jury.
FIRST AFFIRMATIVE DEFENSE
24, Plaintiff's claims are barred in whole or in part by the doctrine of unclean hands.
Specifically, and without limitation, Plaintiff should not be permitted to procure a foreclosure in
equity or a deficiency judgment when it induced Defendant to default by representing that a loan
modification or short sale was impossible without being in default, yet Plaintiff refused to give
the desired modification or short sale after the alleged default.
SECOND AFFIRMATIVE DEFENSE
25. Plaintiff's claims are barred in whole or in part for failure to mitigate damages.
Specifically, and without limitation, Plaintiff and its predecessor failed to consider Defendant in
good faith for a loan modification or other “work out,” even though Plaintiff represented to
Defendant that the desired loan modification was possible if they missed payments. Further,
Plaintiff should not get to recoup default interest or late charges when it failed to diligently
prosecute this case.
THIRD AFFIRMATIVE DEFENSE
26. Plaintiff's claims are barred in whole or in part because Plaintiff lacks standing to
bring this suit as well as standing at inception.
FOURTH AFFIRMATIVE DEFENSE
27. For the reasons set forth in Defendant’s Motion to Dismiss, Plaintiffs claims are
barred in whole or in part for failure to state a cause of action. In particular, but without
limitation, Plaintiff fails to plead sufficient ultimate facts in paragraph 15 of its Complaint.FIFTH AFFIRMATIVE DEFENSE
28. Plaintiffs claims are barred in whole or in part by the doctrine of
unconscionability. Specifically, and without limitation, it would be unconscionable for Plaintiff
to recover a deficiency it seeks because that would shift 100% of the blame for the real estate
collapse onto Defendant. Neither party envisioned that the real estate market would collapse in
the manner it did, and Defendant should not be made to bear the full weight of a deficiency when
both sides were mutually mistaken in this regard.
SIXTH AFFIRMATIVE DEFENSE
29, Plaintiff's claims are barred in whole or in part by the doctrine of waiver.
Specifically, and without limitation, Plaintiff accepted late payments from Defendant regularly
and should not be permitted to charge for late fees or accelerate the allegedly unpaid balance
based on those late fees. Additionally, Plaintiff should not get to recoup default interest, late
charges or any other cost/expenses associated with its failure to diligently prosecute this case.
SEVENTH AFFIRMATIVE DEFENSE
30. Plaintiffs claims are barred in whole or in part by the doctrine of estoppel.
Specifically, and without limitation, Plaintiff is barred from procuring a foreclosure when it
represented to Defendant that the only way to be considered for a loan modification or short sale
was to default, yet Plaintiff refused to give the desired modification or short sale after the alleged
default.
EIGHTH AFFIRMATIVE DEFENSE
31. Plaintiffs claims must be set off in whole or in part, by the damages to which
Defendant is entitled.
32. Plaintiff's claims are barred in whole or in part by its violations of the Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. and Fla. Stat. 559.72(18) and the
5damages to which Defendant is entitled as a result. Specifically, and without limitation, Plaintiff
and its agents called Defendant(s) repeatedly in an attempt to collect this debt, often at odd hours
of the day, despite knowing Defendant(s) has been represented by counsel. Plaintift’s claims
must be set off in whole or in part, by the damages to which Defendant(s) is entitled.
NINTH AFFIRMATIVE DEFENSE
33. The Complaint is not verified in the manner required by Rule 1.115 (formerly
Rule 1.110(b)) and does not contain an affidavit of lost note compliant with Fla. Stat. 702.015
and Rule 1.115.
TENTH AFFIRMATIVE DEFENSE
34, Plaintiff's claims must be set-off, wholly or partly, by the damages to which
Defendant is entitled as a result of Plaintiff's violations of 12 U.S.C. 2605 (c), which sets forth
notice requirements upon a change in servicer.
ELEVENTH AFFIRMATIVE DEFENSE
35. Plaintiff's claims are barred in whole or in part by the statute of limitations.
TWELFTH AFFIRMATIVE DEFENSE
36. To the extent Plaintiff is purporting to act via an alleged servicer or some other
agent, either with respect to the holding of the note or otherwise, the requisite agency
relationship allowing such actions is lacking. To wit, Plaintiff has not shown: (1) it
acknowledged the power of this alleged agent to act; (2) the alleged agent accepted the
responsibility of acting on behalf of Plaintiff; and (3) Plaintiff retained control over the actions of
the alleged agent.
WHEREFORE Defendant respectfully requests Plaintiff take nothing by this action and
go hence without delay. Defendant further requests an award of attorneys’ fees and costs in
6defending this action, Defendant demands a trial by jury.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished via electronic mail to Adam A, Diaz, Esq., answers@shdlegalgroup.com.
adiaz@shdlegalgroup.com, SHD Legal Group, P.A., on this ~2Sday of August, 2017.
<-Mark P. Stopa, Esquire
FBN: 550507
STOPA LAW FIRM.
2202 N. Westshore Blvd., Suite 200
/ ban! Tampa, FL 33607
oe Telephone: (727) 851-9551
foreclosurepleadings@stopalawfirm.com
ATTORNEY FOR DEFENDANT(S)
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Filing # 60946011 E-Filed 08/25/2017 05:24:42 PM IN THE CIRCUIT COURT OF THE TWENTHETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA U.S. BANK, NATIONAL ASSOCIATION, Plaintiff, ve Case No. 17-CA-100 THOMAS F. LAMATRICE, et al., Defendants. / ANSWER AND AFFIRMATIVE DERENSES Defendant, THOMAS F. LAMATRICE, by and through undersigned counsel, hereby respectfully files this Answer to Plaintiff's Complaint and states: 1. ua 5. Admitted for jurisdictional purposes. Otherwise, denied. Admitted for venue purposes. Otherwise, denied. Denied. Denied. Denied. Specifically, and without limitation, Plaintiff failed to give notice of the alleged default and an opportunity to cure, as required by paragraphs 15, 20 and 22 of the subject mortgage, Even if the notice had been sent, it did not contain the information required, as it did not come from the Lender, did not specify the default, the action required to cure the default, that failure to cure the default would result in foreclosure by judicial proceeding, nor did it inform Defendant(s) of the right to reinstate after acceleration. Further, Plaintiff failed to comply with the requirements of the National Housing Act, 12 U.S.C§ 1701x(c)(5), under which Plaintiff is required to complete pre-foreclosure counseling with the Defendant(s). Plaintiff failed to comply with 15 USC 1641(g). Further, Plaintiff or its servicer was not the original servicer yet failed to give written notice of a change of servicer, as required by paragraph 20 of the mortgage and 12 U.S.C. 2605; even if such a notice had been given, it didnot contain the information mandated by the statute, in particular, the effective date of the transfer of servicing, the name, address, and toll-free or collect call telephone number of the transferee servicer, the name and toll free or collect call telephone number of an individual employed by the transferee servicer that can be contacted by the borrower to answer inquiries related to the transfer of servicing, the date on which the transferor servicer will cease to accept payments, the date on which the transferee servicer will begin to accept payments, any information concerning the effect the transfer may have on the terms of insurance and what the borrower must do to maintain coverage, and a statement that the transfer of servicing does not affect the security instrument other than terms directly related to the servicing of the loan. Moreover, any attempts to collect for forced-placed insurance are not viable, as Plaintiff or its servicer did not comply with the notice requirements of 12 U.S.C. 2605(1)(1), in particular, the notices by first class mail conteniplated by subsections (A)-(B) of the statute. Finally, Plaintiff failed to comply with HAMP requirements. 6. Denied. COUNTI 7 Denied, 8. Denied. 9. Denied. Specifically, and without limitation, Defendant denies the allegations set forth and denies the validity and authenticity of the Lost Note Affidavit, referenced therein as being attached to the Complaint as part of Composite Exhibit A, and denies all signatures and endorsements and the authority to place such signatures and endorsements, thereon. 10. Denied. ll. Denied. 12. Denied.COUNT I 13. Denied. Specifically, and without limitation, Defendant denies the allegations set forth and denies the validity and authenticity of the Mortgage, referenced therein as being attached to the Complaint as part of Composite Exhibit A, and denies all signatures, thereon. 14. Denied. Specifically, and without limitation, Defendant denies the allegations set forth and denies the validity and authenticity of the Assignment of Mortgage, referenced therein as being attached to the Complaint as part of Composite Exhibit A, and denies all signatures, thereon. 15. Denied. Specifically, and without limitation, Defendant denies the allegations set forth and denies the validity and authenticity of the Lost Note Affidavit, referenced therein as being attached to the Complaint as part of Composite Exhibit A, and denies all signatures and endorsements and the authority to place such signatures and endorsements, thereon. 16. Admitted. 17. Denied. 18. Denied. 19, Denied. 20. Denied. 21. Denied. GENERAL DENIAL 22. To the extent not expressly admitted herein, Defendant generally denies the allegations contained within the Plaintiff's Complaint and demand strict proof thereof as required by Florida’s Constitution, Statutes, Laws and Rules of Procedure. Defendant reserves the right to amend this answer to assert any additional counterclaims or causes of action he may haveagainst Plaintiff and to avert any affirmative defenses available, within the time allowed and/or by the at the discretion of the Court. 23. Defendant demands a trial by jury. FIRST AFFIRMATIVE DEFENSE 24, Plaintiff's claims are barred in whole or in part by the doctrine of unclean hands. Specifically, and without limitation, Plaintiff should not be permitted to procure a foreclosure in equity or a deficiency judgment when it induced Defendant to default by representing that a loan modification or short sale was impossible without being in default, yet Plaintiff refused to give the desired modification or short sale after the alleged default. SECOND AFFIRMATIVE DEFENSE 25. Plaintiff's claims are barred in whole or in part for failure to mitigate damages. Specifically, and without limitation, Plaintiff and its predecessor failed to consider Defendant in good faith for a loan modification or other “work out,” even though Plaintiff represented to Defendant that the desired loan modification was possible if they missed payments. Further, Plaintiff should not get to recoup default interest or late charges when it failed to diligently prosecute this case. THIRD AFFIRMATIVE DEFENSE 26. Plaintiff's claims are barred in whole or in part because Plaintiff lacks standing to bring this suit as well as standing at inception. FOURTH AFFIRMATIVE DEFENSE 27. For the reasons set forth in Defendant’s Motion to Dismiss, Plaintiffs claims are barred in whole or in part for failure to state a cause of action. In particular, but without limitation, Plaintiff fails to plead sufficient ultimate facts in paragraph 15 of its Complaint.FIFTH AFFIRMATIVE DEFENSE 28. Plaintiffs claims are barred in whole or in part by the doctrine of unconscionability. Specifically, and without limitation, it would be unconscionable for Plaintiff to recover a deficiency it seeks because that would shift 100% of the blame for the real estate collapse onto Defendant. Neither party envisioned that the real estate market would collapse in the manner it did, and Defendant should not be made to bear the full weight of a deficiency when both sides were mutually mistaken in this regard. SIXTH AFFIRMATIVE DEFENSE 29, Plaintiff's claims are barred in whole or in part by the doctrine of waiver. Specifically, and without limitation, Plaintiff accepted late payments from Defendant regularly and should not be permitted to charge for late fees or accelerate the allegedly unpaid balance based on those late fees. Additionally, Plaintiff should not get to recoup default interest, late charges or any other cost/expenses associated with its failure to diligently prosecute this case. SEVENTH AFFIRMATIVE DEFENSE 30. Plaintiffs claims are barred in whole or in part by the doctrine of estoppel. Specifically, and without limitation, Plaintiff is barred from procuring a foreclosure when it represented to Defendant that the only way to be considered for a loan modification or short sale was to default, yet Plaintiff refused to give the desired modification or short sale after the alleged default. EIGHTH AFFIRMATIVE DEFENSE 31. Plaintiffs claims must be set off in whole or in part, by the damages to which Defendant is entitled. 32. Plaintiff's claims are barred in whole or in part by its violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. and Fla. Stat. 559.72(18) and the 5damages to which Defendant is entitled as a result. Specifically, and without limitation, Plaintiff and its agents called Defendant(s) repeatedly in an attempt to collect this debt, often at odd hours of the day, despite knowing Defendant(s) has been represented by counsel. Plaintift’s claims must be set off in whole or in part, by the damages to which Defendant(s) is entitled. NINTH AFFIRMATIVE DEFENSE 33. The Complaint is not verified in the manner required by Rule 1.115 (formerly Rule 1.110(b)) and does not contain an affidavit of lost note compliant with Fla. Stat. 702.015 and Rule 1.115. TENTH AFFIRMATIVE DEFENSE 34, Plaintiff's claims must be set-off, wholly or partly, by the damages to which Defendant is entitled as a result of Plaintiff's violations of 12 U.S.C. 2605 (c), which sets forth notice requirements upon a change in servicer. ELEVENTH AFFIRMATIVE DEFENSE 35. Plaintiff's claims are barred in whole or in part by the statute of limitations. TWELFTH AFFIRMATIVE DEFENSE 36. To the extent Plaintiff is purporting to act via an alleged servicer or some other agent, either with respect to the holding of the note or otherwise, the requisite agency relationship allowing such actions is lacking. To wit, Plaintiff has not shown: (1) it acknowledged the power of this alleged agent to act; (2) the alleged agent accepted the responsibility of acting on behalf of Plaintiff; and (3) Plaintiff retained control over the actions of the alleged agent. WHEREFORE Defendant respectfully requests Plaintiff take nothing by this action and go hence without delay. Defendant further requests an award of attorneys’ fees and costs in 6defending this action, Defendant demands a trial by jury. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via electronic mail to Adam A, Diaz, Esq., answers@shdlegalgroup.com. adiaz@shdlegalgroup.com, SHD Legal Group, P.A., on this ~2Sday of August, 2017. <-Mark P. Stopa, Esquire FBN: 550507 STOPA LAW FIRM. 2202 N. Westshore Blvd., Suite 200 / ban! Tampa, FL 33607 oe Telephone: (727) 851-9551 foreclosurepleadings@stopalawfirm.com ATTORNEY FOR DEFENDANT(S)