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
☐ Strict compliance required (Samaroo v. Wells Fargo Bank, 137 So. 3d 1127 (Fla. 4th DCA 2014); Diaz v. Wells Fargo Bank, 189 So. 3d 1006)

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). § 95.11(5)(h) permits 1-year window to re-foreclose after dismissal in certain situations.

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 send a proper default letter strictly complying with the notice and cure provisions of paragraph 22. Samaroo v. Wells Fargo Bank, 137 So. 3d 1127 (Fla. 4th DCA 2014).

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 Extinguishment (Fla. Stat. § 95.281). The mortgage lien has been extinguished by operation of law.

SEVENTH AFFIRMATIVE DEFENSE — Failure to Provide § 559.715 Notice of Assignment. Plaintiff (or a predecessor) failed to provide the 30-day written notice of assignment required by Fla. Stat. § 559.715.

EIGHTH 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.

NINTH AFFIRMATIVE DEFENSE — Payment / Tender / Reinstatement.

TENTH AFFIRMATIVE DEFENSE — Estoppel / Waiver / Unclean Hands.

ELEVENTH AFFIRMATIVE DEFENSE — TILA Damages / Rescission (if within 3 years).

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

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

FOURTEENTH 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). Defendant alleges violations including § 559.72(7) (willfully communicating with debtor with such frequency as to harass), § 559.72(9) (claiming, attempting, or threatening to enforce a debt when knowing the debt is not legitimate), and § 559.715 (assignment notice). Defendant is entitled to actual damages, $1,000 statutory damages per violation, punitive damages, attorneys' fees, and costs.

SECOND COUNTERCLAIM — Violation of FDUTPA (Fla. Stat. § 501.201 et seq.). Plaintiff's servicing practices are unfair and deceptive acts in trade and commerce, causing Defendant actual damages.

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 prejudice;
b. Discharge of lis pendens;
c. Judgment on each Counterclaim including actual, statutory, and punitive damages;
d. Declaration that the mortgage is extinguished;
e. Attorneys' fees pursuant to the reciprocal-fee provision of the mortgage and Fla. Stat. § 57.105, § 559.77(2), § 501.2105, 12 U.S.C. § 2605(f), 15 U.S.C. § 1692k;
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 therein are true and correct to the best of my knowledge and belief.

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 with prejudice 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 action is barred in whole or in part by Fla. Stat. § 95.11(2)(c) / § 95.281.

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 with HUD-certified mediator

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. Pursuant to 12 C.F.R. § 1024.41(b)(2), acknowledge within 5 business days. Pursuant to § 1024.41(c), evaluate within 30 days and offer all available options. Pursuant to § 1024.41(g), do NOT move for summary judgment or foreclosure sale.

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 mailing.
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 (60-month cure horizon under 11 U.S.C. § 1322(b)(5))
☐ Florida unlimited homestead exemption (Fla. Const. art. X § 4) — verify acreage limits
☐ 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; SOL is 1 year from issuance of Certificate of Title (§ 95.11(5)(h))
☐ 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. 4th 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