- Violations of HOEPA. Plaintiff/Note Owner, or its predecessor(s) in interest violated various provisions of the Home Ownership Equity Protection Act (“HOEPA”) pursuant to 15 USC § 1639 et seq. by failing to make proper disclosures to Defendants/Borrowers and committed intentional predatory lending by including prohibited terms. These violations provide an extended three (3) year right to rescission and enhanced monetary damages for the Defendants/Borrowers.
- Extortionate Extension of Credit. Plaintiff, or its predecessor(s) in interest, are guilty of an extortionate extension of credit, which is defined as “any extension of credit whereby it is the understanding of the creditor and the debtor at the time an extension of credit is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person.” In this case, Plaintiff/Note Owner, or its predecessor(s) in interest, are guilty of such an extension of credit because at the time of the loan, it was understood that Defendants’/Borrowers’ failure to repay the loan could result in the use of criminal means by the Plaintiff/Note Owner to cause harm to Defendants’/Borrowers’ or others’ persons, reputation or property, including trespass on Defendant/Borrower’s property, perjury, mail and wire fraud, and Racketeer Influenced and Corrupt Organization (RICO) violations, as long as Plaintiff/Note Owner, or its predecessor(s) in interest, thought they would not be caught.
- Fraud. The alleged Note and Mortgage and other loan documents, were induced by the fraud of the Plaintiff/Note Owner, or its predecessors in interest and its co-conspirators, and are therefore void and unenforceable. Specifically, the originator of the loan and its co-conspirators made the following representations:
(2) that it would be a “good” loan, and
(3) it would be of substantial benefit to Defendants/Borrowers.
(2) The Plaintiff/Note Owner, or its predecessor(s) in interest, did not look out for Defendants’/Borrowers’ best interest or protect and promote Defendants’/Borrowers’ benefit;
(3) Defendants/Borrowers did not receive the best loan available;
(4) The loan was not a “good” loan;
(5) The loan was not in Defendants’/Borrowers’ best interest, but rather was in the best interest and to the benefit of the Plaintiff/Note Owner, or its predecessor(s) in interest;
(6) Defendants/Borrowers reasonably relied on the representations by the Plaintiff/Note Owner, or its predecessor( s) in interest, to their detriment.
(7) The Plaintiff/Note Owner, or its predecessor(s) in interest, failed to disclose all costs, fees and expenses; charged excessive fees, gave kickbacks and made payments of fees to parties not entitled to receive them, and failed to provide Defendants/Borrowers with all disclosures required by law.
(8) To confuse, bamboozle and defraud Defendants/Borrowers, the Plaintiff/Note Owner, or its predecessor(s) in interest intentionally scheduled the closing with insufficient time at the closing for Defendants to have the time to actually read the documents requiring Defendants’ signature.
- Unconscionability. In light of all of the foregoing defenses, and on the face of the purported loan documents, the terms and circumstances of the Note and Mortgage were unconscionable when made and were unconscionably exercised, it is unconscionable to enforce the Mortgage by foreclosure.
- Rescission. The mortgage and note which are the subject of this action have been rescinded and therefore the mortgage(s) and note(s) are void.
- Lack of Jurisdiction. This court lacks jurisdiction over the subject matter. It appears on the face of the complaint that a person other than the Plaintiff/Note Owner was the true owner of the claim sued upon at the time this action was filed and that the Plaintiff/Note Owner is not the real party in interest and is not shown to be authorized to bring this foreclosure action.
- Duress.a) Plaintiff/Note Owner alleges ownership of the note and mortgage in question.
b) Plaintiff/Note Owner is liable for actions of the named mortgage company and/or its agents.
c) The named mortgage company, and/or its agent, used unjustified pressure to make Defendants/Borrowers sign the mortgage and note, including telling Defendants/Borrowers that they would be liable for the closing costs if they did not go through with closing.
d) Defendants/Borrowers were harmed by the named mortgage company.
- Failure to State a Claim for Which Relief May Be Granted.
a) Plaintiff filed a claim to re-establish a lost note.
b) Plaintiff claims the right to re-establish such note under Fla. Stat. §673.3091.
c) Fla. Stat. §673.3091 provides only for re-establishment of negotiable instruments as defined under Fla. Stat. §673.1041.
d) The note at issue is not a negotiable instrument as defined under §673.1041 because it does not contain an unconditional promise to pay and/or other requirements to qualify as a negotiable instrument.
e) Therefore Fla. Stat. §673.1041 does not apply to transfer or enforce the promissory note at issue in this foreclosure action.
f) Therefore, Plaintiff has failed to state a claim for which relief may be granted.
- Failure to Timely Serve Complaint.
a) Complaint was filed on February 13, 2008.
b) However, Defendant was served on July 3, 2008.
c) Pursuant to Fl. R. Civ. Pro. 1.070(j), Defendant is required to be served within 120 days after filing of the initial pleading.
d) Plaintiff served Defendant approximately 170 days after filing the initial pleading.
- Fraud in The Inducement.i. Plaintiff alleges ownership of the note and mortgage in question.
ii. Plaintiff is liable for actions of ABC Mortgage and/or its agents.
iii. ABC Mortgage and/or its agents made false statements and/or omissions regarding a material fact;