Florida Foreclosure Defense Verified Answer, Counterclaims, and Loss Mitigation Package

Florida Foreclosure Defense Verified Answer, Counterclaims, and Loss Mitigation Package

Part 1 — Borrower Intake and Pre-Answer Audit

Date of intake: [__/__/____]
Attorney/firm: [________________________________]
Client (Defendant) name(s): [________________________________]
Property address: [________________________________]
County of property: [________________________________]
Owner-occupied homestead: ☐ Yes ☐ No
Property of 1-4 residential units: ☐ Yes ☐ No

1.1 Loan Identification

1.2 Service / Procedural Posture

☐ Lis Pendens filed — date: [__/__/____]
☐ Verified Complaint served (§ 702.015) — date: [__/__/____]
☐ § 702.015(4) certification of possession of original note attached
☐ § 702.015(5) lost note affidavit (if applicable) attached
☐ Time to answer: 20 days — Answer due: [__/__/____]
☐ § 702.10 Order to Show Cause issued? ☐ Yes ☐ No — Show-cause hearing: [__/__/____]
☐ Mandatory mediation in this circuit (e.g., 11th, 13th, 17th, 20th may require) — confirm Administrative Order
☐ Trial / non-jury bench trial scheduled — date: [__/__/____]

1.3 Fla. Stat. § 702.015 Audit (Pleading Defects)

☐ Complaint is VERIFIED under penalty of perjury (NOT merely signed by counsel)
☐ Complaint contains affirmative allegation that plaintiff is holder of original note OR specifies basis for entitlement under § 673.3011
☐ § 702.015(4) certification of possession attached (with location, name/title of verifier, date of verification)
☐ Copies of note and all allonges attached
☐ If lost-note count: affidavit with chain of endorsements/transfers AND facts of entitlement under § 673.3091
☐ Audit reports or evidence of acquisition/ownership/possession attached to LN affidavit
☐ If delegated authority: complaint describes delegation and identifies the specific document

1.4 Contractual Conditions Precedent (Paragraph 22 / Default Letter)

☐ Default letter (Paragraph 22) sent — date: [__/__/____]
☐ Letter specifies: default; action to cure; 30-day cure period; consequences of failure to cure; right to reinstate; right to assert defenses in foreclosure
☐ Mailed to property address per mortgage
☐ Compare the default letter with each notice requirement in paragraph 22; identify any omission and how it affected the borrower

1.5 Statute of Limitations Analysis

Bartram doctrine: Each new missed payment creates a new accrual; dismissal does not preclude later action based on subsequent defaults. Bartram v. U.S. Bank Nat'l Ass'n, 211 So. 3d 1009 (Fla. 2016). Section 95.11(2)(c) sets the five-year foreclosure period; § 95.11(6)(g) separately limits qualifying residential mortgage deficiency claims to one year after the clerk issues the certificate or the mortgagee accepts a deed in lieu.

1.6 Standing / Chain of Assignments

☐ Plaintiff possessed original note ENDORSED at time of filing (McLean v. JP Morgan Chase Bank, 79 So. 3d 170)
☐ Endorsement chain on note (blank or specific) verified
☐ Recorded chain of Assignments of Mortgage
☐ MERS in chain
☐ Allonge firmly affixed
☐ If lost note: clear chain of transfers under § 673.3091

1.7 Federal Reg X Compliance Audit

☐ Early-intervention notice within 45 days (12 C.F.R. § 1024.39)
☐ Continuity of contact within 45 days (§ 1024.40)
☐ Loss-mit acknowledgment within 5 business days (§ 1024.41(b)(2))
☐ Evaluation of complete app within 30 days (§ 1024.41(c))
☐ 120-day pre-filing rule observed (§ 1024.41(f))
☐ Dual tracking prohibition (§ 1024.41(g))

1.8 Fla. Stat. § 559.715 / FCCPA Audit

☐ Notice of assignment of debt sent at least 30 days before suit
☐ Each assignee in chain provided § 559.715 notice

Part 2 — Verified Answer with Affirmative Defenses and Counterclaims

Circuit Court of the [____] Judicial Circuit in and for [____________] County, Florida
Case No.: [________________________________] Division: [________]

2.1 Verified Answer

Defendant [________________________________], by counsel [________________________________], answering Plaintiff's Verified Complaint, alleges:

1. Without knowledge as to allegations in paragraphs [____].
2. Denies allegations in paragraphs [____].
3. Admits allegations in paragraphs [____].

2.2 Affirmative Defenses (Fla. R. Civ. P. 1.110(d))

FIRST AFFIRMATIVE DEFENSE — Lack of Standing. Plaintiff was not the holder of the original promissory note properly endorsed (in blank or to Plaintiff) at the time the Complaint was filed and is not a "person entitled to enforce" the note under Fla. Stat. § 673.3011. McLean v. JP Morgan Chase Bank, 79 So. 3d 170 (Fla. 4th DCA 2012).

SECOND AFFIRMATIVE DEFENSE — Failure to Comply with Fla. Stat. § 702.015. The Complaint is not properly verified, lacks the required certification of possession, and/or fails to attach correct copies of the note and allonges.

THIRD AFFIRMATIVE DEFENSE — Lost Note Defects. If Plaintiff seeks to enforce a lost note, the affidavit fails to: (a) detail a clear chain of endorsements/transfers; (b) establish entitlement under § 673.3091; (c) attach required exhibits; or (d) provide adequate protection under § 673.3091(2) / § 702.11.

FOURTH AFFIRMATIVE DEFENSE — Failure to Comply with Mortgage Conditions Precedent (Paragraph 22). Plaintiff failed to satisfy the material notice and cure requirements of paragraph 22 because [IDENTIFY THE MISSING OR DEFECTIVE NOTICE TERM AND RESULTING PREJUDICE, IF ANY].

FIFTH AFFIRMATIVE DEFENSE — Statute of Limitations (Fla. Stat. § 95.11(2)(c)). The action is barred to the extent it seeks recovery of installments more than 5 years before commencement.

SIXTH AFFIRMATIVE DEFENSE — Lien Termination (Fla. Stat. § 95.281), if supported by the recorded instruments. Final maturity is [DATE] and is ascertainable from [RECORDED INSTRUMENT]; more than five years have elapsed since that date. [If final maturity is not ascertainable from the record, plead the applicable 20-year period from the mortgage date instead, accounting for any timely recorded obligation or extension and the statute's exclusions.] Attach the record evidence: [EXHIBIT].

SEVENTH AFFIRMATIVE DEFENSE — Violation of 12 C.F.R. § 1024.41 (Reg X Loss Mitigation). Plaintiff's servicer violated dual-tracking, evaluation, and appeal provisions of Reg X.

EIGHTH AFFIRMATIVE DEFENSE — Payment / Tender / Reinstatement.

NINTH AFFIRMATIVE DEFENSE — Estoppel / Waiver / Unclean Hands.

TENTH AFFIRMATIVE DEFENSE — Other transaction-specific defense, if applicable: [FACTS, SOURCE, AND RELIEF]. A residential mortgage used to finance acquisition or initial construction is excluded from 15 U.S.C. § 1635 rescission; do not plead that remedy solely because fewer than three years have passed.

ELEVENTH AFFIRMATIVE DEFENSE — FDCPA Violations (15 U.S.C. § 1692 et seq.).

TWELFTH AFFIRMATIVE DEFENSE — Failure to State a Cause of Action.

THIRTEENTH AFFIRMATIVE DEFENSE — Reservation of Right to Assert Additional Defenses.

2.3 Compulsory and Permissive Counterclaims (Fla. R. Civ. P. 1.170)

FIRST COUNTERCLAIM — Violation of FCCPA (Fla. Stat. § 559.72), if supported by specific acts. Defendant alleges [IDENTIFY THE ACTS AND APPLICABLE § 559.72 SUBSECTION, SUCH AS HARASSING COMMUNICATIONS UNDER (7) OR KNOWINGLY ASSERTING AN ILLEGITIMATE DEBT UNDER (9)]. Defendant seeks relief authorized by § 559.77(2), including actual damages and additional statutory damages up to $1,000 as the court may allow. A failure to give § 559.715 assignment notice alone does not establish a § 559.72 damages claim.

SECOND COUNTERCLAIM — Violation of FDUTPA (Fla. Stat. § 501.201 et seq.), only if § 501.212 does not exempt the actor or activity. Plaintiff [IDENTIFY NONEXEMPT ACTOR AND SPECIFIC DECEPTIVE OR UNFAIR ACT], causing Defendant [IDENTIFY ACTUAL LOSS]. Check § 501.212(4) before pleading against a regulated bank, credit union, or savings and loan association.

THIRD COUNTERCLAIM — Violation of RESPA / Reg X (12 U.S.C. § 2605; 12 C.F.R. § 1024.35 / .36 / .41). Failure to respond to Notices of Error / Requests for Information; dual tracking; failure to evaluate complete loss-mit application; failure to provide denial reasons and appeal rights.

FOURTH COUNTERCLAIM — Violation of FDCPA (15 U.S.C. § 1692e, 1692f, 1692g).

FIFTH COUNTERCLAIM — Violation of FCRA (15 U.S.C. § 1681s-2(b)).

SIXTH COUNTERCLAIM — Breach of Contract.

SEVENTH COUNTERCLAIM — Declaratory Judgment (Fla. Stat. Ch. 86). Defendant seeks declaration that the mortgage is extinguished, the note unenforceable, and the lis pendens void.

2.4 Prayer for Relief

WHEREFORE, Defendant requests:
a. Dismissal of the Complaint with or without prejudice, as the established grounds and applicable law warrant;
b. Discharge of lis pendens;
c. Judgment on each Counterclaim for actual or statutory damages authorized by its governing law;
d. Declaration that the mortgage is extinguished;
e. Attorneys' fees under the mortgage fee provision as made reciprocal, if applicable, by Fla. Stat. § 57.105(7), and under any separately applicable § 559.77(2), § 501.2105, 12 U.S.C. § 2605(f), or 15 U.S.C. § 1692k basis; sanctions under § 57.105 only when its separate requirements are met;
f. Costs and such other relief as is just.

Dated: [__/__/____] Signed: [________________________________] FBN: [________]
Attorney for Defendant

2.5 Verification

STATE OF FLORIDA )
COUNTY OF [_______] )

Under penalties of perjury, I, [________________________________], declare that I am the Defendant, that I have read the foregoing Verified Answer with Affirmative Defenses and Counterclaims, and that the facts stated in it are true.

Signature: [________________________________] Date: [__/__/____]

(Notarization, if required by local practice.)

Part 3 — Motion to Dismiss for Failure to Comply with Fla. Stat. § 702.015 / Lack of Standing

3.1 Motion

Defendant moves this Court pursuant to Fla. R. Civ. P. 1.140(b) and Fla. Stat. § 702.015 to dismiss the Complaint or require a compliant amended complaint, as warranted by the established defects, and for any sanctions justified under § 702.015(6), on the grounds that:

1. The Complaint fails to comply with the mandatory verification and pleading requirements of Fla. Stat. § 702.015;
2. The Lost Note affidavit (if applicable) fails to comply with § 702.015(5) and § 673.3091;
3. Plaintiff lacks standing because it was not the holder or PETE of the note at the time of filing;
4. The Complaint fails to allege satisfaction of conditions precedent (paragraph 22);
5. The recovery sought includes installments barred by Fla. Stat. § 95.11(2)(c); separately, the mortgage lien has terminated under § 95.281 only if the recorded maturity, extension, and exclusion facts pleaded in the Answer establish that result.

3.2 Memorandum of Law

[Brief setting out: § 702.015 strict requirements; McLean; Samaroo; Bartram; Beauchamp v. Bank of N.Y., 150 So. 3d 827; sanctions available under § 702.015(6).]

Part 4 — Mandatory Mediation Submission (Where Applicable)

4.1 Mediation Procedure

Confirm circuit's Administrative Order. Many circuits include:
☐ Borrower-counsel certification of complete loss-mit application uploaded to mediation portal
☐ Plaintiff certification of authority of representative to settle
☐ Document exchange before mediation date
☐ In-person or virtual mediation as ordered by the circuit; confirm the mediator's Florida Supreme Court certification and circuit registration under § 44.102(4)

4.2 Borrower Pre-Mediation Submission

☐ Uniform Borrower Assistance Form (Form 710)
☐ IRS Form 4506-C
☐ Two most recent pay stubs
☐ Two most recent federal tax returns
☐ Two months bank statements
☐ Hardship affidavit
☐ Profit & loss (self-employed)
☐ Award letters (SS / pension / disability)
☐ Property tax / insurance / HOA proof

4.3 Plaintiff Required Production at Mediation

☐ Investor identity and applicable guidelines
☐ Itemized payment history
☐ All loss-mitigation options for which borrower may be eligible
☐ NPV inputs and result
☐ Person at table with full settlement authority

Part 5 — Federal Loss-Mitigation Application Package (Reg X § 1024.41)

5.1 Cover Letter

Re: Loan No. [____________] — Complete Loss Mitigation Application under 12 C.F.R. § 1024.41

[Borrower] submits a complete loss-mitigation application. The scheduled sale date is [__/__/____]. If the servicer receives this application at least 45 days before sale, 12 C.F.R. § 1024.41(b)(2) requires written acknowledgment within five days, excluding legal public holidays, Saturdays, and Sundays. If the servicer receives the complete application more than 37 days before sale, § 1024.41(c) requires evaluation within 30 days and § 1024.41(g) restricts moving for judgment or sale and conducting the sale while the specified review and appeal conditions remain unresolved.

5.2 Loan Modification Request

5.3 HUD Counselor Referral

☐ Referred to HUD-approved housing counselor: [________________________________]
☐ Phone: [________________________________] Date: [__/__/____]
☐ HUD locator: hud.gov/findacounselor or (800) 569-4287
☐ Florida Housing Finance Corp: floridahousing.org

Part 6 — Discovery Demand

6.1 Request for Production of Documents

1. Original wet-ink note with all endorsements and allonges (or judicial inspection).
2. Recorded chain of Assignments of Mortgage.
3. Lost-note custodial records, audit reports, and chain documentation.
4. PSA and mortgage loan schedule.
5. § 559.715 notices of assignment with proof of delivery, if relevant to a separate statutory notice issue.
6. Paragraph 22 default letter with proof of mailing.
7. Complete servicing notes ("FICO" / collection screens).
8. Complete loss-mit file (applications, denials, appeals, NPV results, investor guidelines).
9. Internal valuation / BPO of the property.
10. All Notice of Error / Request for Information correspondence and responses.

6.2 Interrogatories

1. Identify the current owner of the loan.
2. State the date Plaintiff first came into possession of the original note (or describe loss).
3. Identify each loss-mit option evaluated and the basis for denial.
4. Identify each prior foreclosure action filed against this property and disposition.

6.3 Requests for Admission

1. Admit Plaintiff did not possess the original note at filing.
2. Admit no § 559.715 notice was sent for the assignment to Plaintiff.
3. Admit the paragraph 22 default letter was not strictly compliant.
4. Admit the loan was accelerated on [__/__/____].
5. Admit no payment has been made since [__/__/____].

Part 7 — RESPA Notice of Error / Request for Information

To: [Servicer RESPA Department address]
Re: Loan No. [____________]
This is a Notice of Error and Request for Information under 12 U.S.C. § 2605(e)/(k) and 12 C.F.R. §§ 1024.35 / 1024.36.

Errors asserted:
☐ Improper acceleration / failure to honor loss-mit
☐ Misapplication of payments
☐ Unauthorized fees
☐ Dual tracking (§ 1024.41(g))
☐ Failure to evaluate complete app within 30 days
☐ Failure to provide denial reasons and appeal rights

Information requested:
☐ Identity of current note owner
☐ Complete payment history
☐ Loss-mit file
☐ All assignments / chain-of-title documents
☐ PSA and mortgage loan schedule

Part 8 — Chapter 13 Bankruptcy Referral Checklist

☐ Confirm regular income to fund Chapter 13 plan
☐ Calculate total mortgage arrears. If considering Chapter 13, assess a cure within a reasonable time under 11 U.S.C. § 1322(b)(5), within the applicable plan duration under § 1322(d) (no more than five years).
☐ Florida constitutional homestead exemption (Fla. Const. art. X, § 4) — verify acreage and federal bankruptcy limits, including 11 U.S.C. § 522(p)'s 1,215-day acquisition rule and its stated exceptions; confirm the current adjusted dollar cap with bankruptcy counsel
☐ Confirm under § 109(e) debt limits
☐ Automatic stay under 11 U.S.C. § 362
☐ Prior bk dismissed within 1 yr (limited stay § 362(c)(3))
☐ Refer to bankruptcy counsel: [________________________________]
☐ Coordinate Chapter 13 petition vs. clerk's electronic sale date — FILE BEFORE SALE

Part 9 — Post-Judgment / Post-Sale Defenses Checklist

☐ Final Judgment of Foreclosure entered — date: [__/__/____]
☐ Notice of Sale published — sale date: [__/__/____]
☐ Sale conducted by clerk's office (electronic) — date: [__/__/____]
☐ Certificate of Sale filed — 10-day objection period (§ 45.031(5))
☐ Object to amount bid / sale irregularities
☐ Certificate of Title issued — date: [__/__/____]
☐ Motion to vacate (Fla. R. Civ. P. 1.540)
☐ § 702.06 deficiency: court must consider FMV; for a one- to four-family residential mortgage, § 95.11(6)(g) runs one year from the day after the clerk issues the certificate or the mortgagee accepts a deed in lieu
☐ Surplus funds claim (§ 45.032)

Part 10 — Sources and References

• Fla. Stat. §§ 95.11, 95.281, 45.031, 45.032, 86.011, 501.201, 559.55-.785, 702.01-.12
• Fla. R. Civ. P. 1.110, 1.115, 1.140, 1.170, 1.510, 1.540
• 12 C.F.R. §§ 1024.35, 1024.36, 1024.39, 1024.40, 1024.41
• 12 U.S.C. § 2605; 15 U.S.C. § 1692; 15 U.S.C. § 1681
• Bartram v. U.S. Bank Nat'l Ass'n, 211 So. 3d 1009 (Fla. 2016)
• McLean v. JP Morgan Chase Bank, 79 So. 3d 170 (Fla. 4th DCA 2012)
• Samaroo v. Wells Fargo Bank, 137 So. 3d 1127 (Fla. 5th DCA 2014)
• Beauchamp v. Bank of N.Y. Mellon, 150 So. 3d 827 (Fla. 4th DCA 2014)
• Diaz v. Wells Fargo Bank, 189 So. 3d 1006 (Fla. 5th DCA 2016)
• Florida Housing Finance Corp: floridahousing.org