Answer with Affirmative Defenses #2

8/6/2019 Answer with Affirmative Defenses #2

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IN THE CIRCUIT COURT OF THE aoth JUDICIAL CIRCl.JtrIN AND FOR COLLIER COUN1Y, FLORIDA \III\

DEUTSCHE BANKNATIONALTRUST COMPANY,AS TRUSTEEOF THE INDYMAC INDX MORTGAGE TRUST 2007-FLX1,MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-FLX-1, UNDER THE POOLINGAND SERVICINGAGREEMENT,DATEDJANUARY1,2007

Plaintiff, CASENO. 08-7903-CAvs.MARYSUPPLEE,et al.

Defendant(s).-----------------------------------1

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSESThe Defendant, MARYSUPPLEE,by and through the undersigned counsel, answers

Plaintiff's complaint herein as follows:1. Defendant denies the allegations in paragraph 1.2. Defendant denies the allegations in paragraph 2 insofar as Plaintiff has failed

to invoke the subject matter jurisdiction ofthe Court.3. Defendant admits paragraph 3.4. Defendant admits only that on September 26, 2006, Defendant Mary Supplee

executed and delivered a promissory note and a mortgage securing payment of the note.Defendant denies the remainder ofparagraph 4.

5. Defendant admits only that the mortgage was recorded in the OfficialRecordsBook 4117 at page 1464 of the Public Records of Collier County, Florida, and that Defendantowned and possessed the property described therein at the time. Defendant denies theremainder ofthe allegations in paragraph 5.

6. Defendant denies the allegations in paragraph 6.


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15. Defendant admits the allegations in paragraph 15 only insofar as Defendantowns the real property referenced on the Subject Mortgage. Defendant denies the remainder ofthe allegations in paragraph 15.

16. Defendant admits the allegations in paragraph 16 only insofar as Defendant isthe maker of the Subject Note. Defendant denies the remainder of the allegations in paragraph16.

17. Defendant admits the allegations in paragraph 17.


19. Defendant is without sufficient knowledge to form an opinion as to anycontractual relationship Plaintiff has with its counsel and therefore denies the allegations inparagraph 19.

20. Paragraph 20 is not an allegation; Defendant accordingly admits or denies asplead above.

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21. Defendant is without sufficient knowledge sufficient to form an opinion as tothe allegations in paragraph 21 and therefore denies same.

22. Defendant denies the allegations in Paragraph 22 insofar as there are nounknown parties that might have claim in Defendant's real property by virtue of possession ortenancy.

23. Paragraph 20 is not an allegation; Defendant accordingly admits or denies aspled above.

24. Defendant denies the allegations in paragraph 24.25. Defendant denies the allegations in paragraph 25.26. Defendant is without sufficient knowledge sufficient to form an opinion as to

the allegations in paragraph 26 and therefore denies same.27. Defendant denies the allegations in paragraph 27.28. Defendant denies the allegations in paragraph 28.29. Defendant is without sufficient knowledge sufficient to form an opinion as to

the allegations in paragraph 29 and therefore denies same.30. Defendant is without sufficient knowledge sufficient to form an opinion as to

the allegations in paragraph 30 and therefore denies same.31. Defendant denies each and every allegation in the complaint, not herein

admitted, controverted or specifically denied.32. Defendant denies that Plaintiff has stated a cause of action for foreclosure

because plaintiff is not the true owner of the claim sued upon, is not the real party in interest,and is not shown to be authorized to bring this foreclosure action. Defendant demands strictproof of the validity of any mortgage and/or promissory note allegedly executed by Defendant,

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along with all subsequent re-recordings, modifications, transfers and/or assignments thereof.Defendant demands strict proof of ownership and possession by any alleged Mortgagee and/orPayee of any mortgage and/or promissory note allegedly executed by Defendant, and Defendantdemands strict proof ofverification of all alleged signatures and endorsements on all documentsthat Plaintiff claims its rights flowfrom.

AFFIRMATIVE DEFENSESGENERALSTATEMENTOFFACTS

33. On September 26, 2006, Defendant MARY SUPPLEE ("DEFENDANT")executed an adjustable rate promissory note in the amount of $289,000 (the "Subject Note"),and a mortgage instrument ("SubjectMortgage") securing payment on the Subject Note with aninterest in her homesteaded real property located at 1551stStreet, Bonita Springs, FL34134 (the"Subject Property").

34. The Subject Mortgage identifies the "Lender" as INDYMACBANK,F.S.B. andthe Mortgagee as MORTGAGEELECTRONICREGISTRATIONSYSTEMS,INC. ("MERS").

35. The Subject Note provides that the Payee is the "Lender", and identifies theLender as INDYMACBANK,F.S.B. (the "LENDER").

36. On February 11, 2010, Plaintiff, Deutsche bank National Trust Company, asTrustee of the Indymac INDX Mortgage Trust 2007-flx1, mortgage pass-through certificates,series 2007-flx-1, under the pooling and servicing agreement, dated january 1,2007 (hereinafter"PLAINTIFF"), filed a complaint to foreclose the Subject Mortgage and to re-establish a lostNote.

37. The securitization trust, to which the Subject Mortgage and Subject Noteallegedly belong (i.e., the Indymac INDXMortgage Loan Trust 2007-FLX1) shall be referred toherein as the "SUBJECTTRUST".

First Affirmative DefensePlaintiff cannot produce the original promissory note38. In order to maintain a mortgage foreclosure, PLAINTIFFmust either present

the original promissory note or give a satisfactory explanation for its failure to do so. Legal AidService ofCollier CountyDefendant's Answer and Affirmative Defenses Page 4


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90.593(i), Fla. Stat. (2007); W.H. Downing v. First Nat'l Bank of Lake City, 81 So.ad 486 (Fla.1955). A limited exception applies for lost, destroyed, or stolen instruments, where it is shownthat "the person was in possession of the instrument and entitled to enforce it when loss ofpossession occurred." 673.3091, Fla. Stat. (2007). PLAINTIFF has not produced the originalnote nor sought to reestablish it. On information and belief, PLAINTIFF cannot prove the termsof the instrument nor PLAINTIFF's right to enforce the instrument. The Court may not enterjudgment in favor of the person seeking enforcement unless it finds that the person required topay the instrument is adequately protected against loss that might occur by reason of a claim byanother person to enforce the instrument. Fla. Stat. 673.3091(2). On information and belief,DEFENDANT specifically denies all necessary terms of the Note are provided in any "Note"PLAINTIFF may produce and in the photocopied Subject Mortgage and Note attached to theComplaint. Necessary indorsements are missing; as such, essential terms and conditionsprecedent are not provided by the PLAINTIFF. On information and belief, DEFENDANT deniesthe authenticity of all signatures on the Subject Mortgage and Note, other than her own, anddemands strict proof thereof, by clear and convincing evidence pursuant to 673.3081, Fla. Stat.(2008).

Second Affirmative DefensePlaintifflacks standing, is not the realparty in interest,and hasfailed toplead a cause of action under Fla. R. Civ. P. 1.110(b)39. PLAINTIFF is neither the original Obligee identified in the Subject Note nor

the original mortgagee. PLAINTIFF has failed to allege ultimate facts as to how or why it cameto be the owner and holder of the Subject Note and Mortgage. Further, PLAINTIFF fails toallege any ultimate facts whatsoever placing it within the chain of ownership of the Subject Noteand Mortgage. Therefore, PLAINTIFF has failed to plead a cause of action under Fla. R. Civ. P.1.110(b). On information and belief, the Pooling Service Agreement of the INDYMAC INDXMORTGAGE LOAN TRUST 2007-FLX1 contains no indication that the Subject Note was eversecuritized thereby, or included in, the Subject Trust. PLAINTIFF is required to provide supportfor its contention that said note is within the trust. The Pooling and Servicing Agreement -described in further detail in DEFENDANT's Tenth Affirmative Defense - clearly defines therequired procedures for the preservation of the Subject Note and Subject Mortgage. PLAINTIFFhas failed to allege facts to show that it ever collected the Subject Note and Mortgage from theCustodian of the trust, when it was collected, in what manner it was collected and where it wassecured prior to its loss. Ifthe Subject Note and Mortgage were never part of the pooled res and,

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therefore not trust property, PLAINTIFFis acting as a trustee on behalf of a trust that never hadownership of the Subject Note and Mortgage and therefore lacks standing to sue as a trustee.

40. In the alternative, if the loan and supporting loan portfolio was in factdeposited into the trust res, PLAINTIFF has then failed to provide proof of transfer andassignment of the Subject Note and Mortgage to the Depositor for the trust, INDYMACMBS,INC., and from Depositor to PLAINTIFF. As such, PLAINTIFFhas failed to show standing toinitiate this action.

Third Affirmative DefenseFailure to State a Cause of Action

Plaintiff is not a "Holder" of the Subject Note41. The Complaint states: "The Plaintiff is the owner and holder of the Note and

Mortgage or is the party entitled to enforce the subject Note within the meaning of Chapter 673of the Florida Statutes." (Emphasis added). In Florida, the prosecution of a residentialmortgage foreclosure action must be by the owner and holder of the mortgage and the note.PLAINTIFF is not entitled to maintain an action if it does not own and hold the Note which ispurportedly secured by the subject Mortgage.' Your Construction Center, Inc. v, Gross, 316 So.zd 596 (Fla. 4th DCA1975) ("when plaintiff files his complaint, he must necessarily allege he isthe owner and holder of the note and mortgage in question"); BAC Funding Consortium Inc. v.Jean-Jacques, 28 SO.3d936 (Fla. 2nd DCA2010) ("...Bank was required to establish, throughadmissible evidence, that it held the note and mortgage and so had standing to foreclose themortgage before it wouldbe entitled to summary judgment in its favor.").

42. However, the Complaint alleges that the Subject Note is "lost, stolen, ordestroyed" and that PLAINTIFF does not have possession of the Subject Note. Section671.201(21)(a), Fla. Stat., defines "Holder" as "The person in possession of a negotiableinstrument that is payable either to bearer or to an identified person that is the person inpossession." Since the Complaint admits that PLAINTIFF does not have possession of theSubject Note, PLAINTIFF cannot be the "holder" of the Subject Note, and the ultimate facts as

1 If pled and proved, some courts recognize that an agent might also havestanding and the capacity to institute a foreclosure on behalf of the ownerof the note. Mortgage EIectronic Registration Systems, Inc. v. Revoredo (955So.2d 33 Fla.3rd DCA 2007); Mortgage EIectronic Registration Systems, Inc. v.Azize (965 So.2d 151 Fla.2nd DCA 2007).

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pled are inconsistent with PLAINTIFF'sbare legal conclusionthat it is the "owner and holder" ofthe SubjectNote. Therefore,the PlAINTIFF has failedto sufficiently plead the ultimate facts asrequired by Florida law, and the Complaint should be dismissed.

Fourth Affirmative DefenseFailure to State aCause of Action

Plaintiff is not entitled to enforce the Subject Note under Chapter 673, Fla. Stat.43. PLAINTIFF alleges that it is "the party entitled to enforce the subject Note

consistent with Chapter 673 of the Florida Statutes." See Complaint, '8. Section 673.3011,Fla.Stat., states that a "person entitled to enforce instrument," means: (1)The holder of theinstrument; (2) A nonholder in possession of the instrument who has the rights of a holder; or(3) A person not in possession of the instrument who is entitled to enforce the instrumentpursuant to 673.3091 [lost instrument] or 673.4181(4) [mistake-enforcement of a dishonoredinstrument]. PLAINTIFF alleges it does not have possession of the Subject Note because it islost, stolen or destroyed. Therefore PLAINTIFFis not a "holder" or a "nonholder in possession ofthe instrument." Furthermore, PLAINTIFFdoes not allege the ultimate facts that bring it withinthe confines of subsection (3) [ 673.3091 enforcement of a lost instrument]; nor does it pleadany facts as to 673.4181(4) [mistake-enforcement of a dishonored instrument]. PLAINTIFFfails to plead the ultimate facts required to enforce a promissory note or foreclose a mortgage inthe State of Florida.

Fifth Affirmative DefensePlaintiff has failed to plead capacity to sue

44. As a threshold matter, it is unclear exactly who or what the plaintiff is in thiscase because the Complaint does not properly set off or identify PLAINTIFFwithin the body ofthe Complaint. A plaintiffs name, i.e., DEUTSCHEBANKNATIONALTRUSTCOMPANY,ASTRUSTEE OF THE INDYMACINDX MORTGAGETRUST 2007-FLX1, MORTGAGEPASS-THROUGH CERTIFICATES,SERIES 2007-FLX-1, UNDER THE POOUNG AND SERVICINGAGREEMENT,DATEDJANUARY1, 2007, is identified in the caption, but nowhere else in anyof PLAINTIFF's pleadings is PLAINTIFF's entity status or capacity even pleaded. PLAINTIFF'sfailure to properly identify itself and thus plead its capacity (i.e., "XYZ, Incorporated is aDelaware registered corporation properly registered as a foreign corporation with the FloridaSecretary of State") prohibits PLAINTIFFfrom asserting that it has established its capacity andprevents DEFENDANT from properly asserting defenses to this action which may prevent

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PLAINTIFFfrom maintaining this present suit from the outset."45. Florida Rules of Civil Procedure Rule 1.120(a), Pleading Special Matters,

provides:(a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued,the authority of a party to sue or be sued in a representative capacity, or the legalexistence of an organized association of persons that is made a party, except tothe extent required to show the jurisdiction of the court. (Emphasisadded) The initial pleading served on behalf of a minor party shall specificallyaver the age of the minor party. When a party desires to raise an issue as to thelegal existence of any party, the capacity of any party to sue or be sued, or theauthority of a party to sue or be sued in a representative capacity, that party shalldo so by specific negative averment which shall include such supportingparticulars as are peculiarly within the pleader's knowledge.46. The complaint lacks any allegation of where the SUBJECTTRUSTwas created,

whether it was and/or is authorized to do business in Florida, or exempt from registration underFlorida law and the basis for its authority. No allegation is made that PLAINTIFFregistered as atrust pursuant to Fla. Stat. 660, et. seq. Florida Rule of Civil Procedure 1.120(a) clearlyrequires that the capacity of both the PLAINTIFF and DEFENDANTbe alleged, "to the extentrequired to show the jurisdiction of the court". Bythe clear language of the rule, this applies toboth PLAINTIFF's status and DEFENDANT'sstatus, i.e. "capacity of a party to sue or be sued",or the "authority of a party to sue or be sued." The Rule also provides the specific proceduresthat defense counsel must use to challenge the issue of the PLAINTIFF's status, i.e. by specificnegative averment. DEFENDANTspecifically asserts that PLAINTIFFhas failed to even pleadits proper party status and thus PLAINTIFF cannot claim it has properly invoked thejurisdiction of this court within the four corners ofthe Complaint.

47. In further support for the proposition that every plaintiff must plead itscapacity to sue, its authority to sue and the legal existence of an organization is found in theauthor's comments to the Rules of Civil Procedure Rule 1.120(a) (2004 Version) which state:"Nevertheless, if a party involved in a suit in other than his individual capacity, the capacity inwhich he is a party should be indicated in the caption and the pleadings."2 The caption - even to the limited extent that it att~ts to identify thePlaintiff - is in error. The actual name of the trust which Plaintiffpurports to represent is "IndyMac INDX Mortgage Loan Trust2007-FLX1".

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48. "Capacity to sue" is an absence of legal disability which would deprive a partyof the right to come into court. 59 Am.Jur.zd Parties 31 (1971). This is in contrast to "standing"which requires an entity have sufficient interest in the outcome of litigation to warrant thecourt's consideration of its position. Keehn v. Joseph C.Mackey and Co., 420 So.zd 398 (Fla. 4thDCA 1982). The issue of capacity to sue may be raised by motion to dismiss where the defectappears on the face of the complaint. Hershel California Fruit Products Co. v. Hunt Foods, 111F. Supp. 603 (1975); Klebano v. New York Produce Exchange, 344 F.2d (2nd Cir. 1965). Failureto raise the issue of a PLAINTIFF's capacity by a specific negative averment has been held to bea waiver of that defense. See McDonough Equip. v. Sunset Amoco West, 669 So.zd 300 (Fla. 3rdDCA 1996); Plumbers Loc. U.N. 519, Miami Fla. v. Servo Plbg., 401 F. Supp. 1008 (1975); andsee Sun Val. American Land Lease, 927 SO.2d 259 (Fla. ad DCA. 2006).

49. PLAINTIFF has failed to plead or specify in what capacity it brings suit andfailed to define or identify nature of its legal entity; thus it has not pled capacity to sue. Withoutsuch capacity, PLAINTIFF cannot invoke the jurisdiction of the Court and may not pursue thislitigation. See Wachovia Mortgage v. Anne Mattachiero, Case No. 08-16936-CI-13 (6th Cir. Ct.,December 15, 2009).

Sixth Affirmative DefenseNegative Averment as to Authenticity

50. The purported copy of the Subject Note attached to PLAINTIFF's Complaintbears what appears to be a blank indorsement. DEFENDANT hereby specifically denies theauthenticity of, and the authority to make, each and every signature and indorsement on theSubject Note and Subject Mortgage, allonge or any assignments thereof, filed by PLAINTIFF inconnection with this case other than that of the Maker, pursuant to Fla. Stat. 673.3081. Thereis no presumption that the indorsement(s) of any prior holder(s) of the Subject Note is/aregenuine, and PLAINTIFF has the burden of proving the validity of any such indorsements.

Seventh Affirmative DefensePlaintiff is not aHolder in Due Course

51. Upon information and belief, PLAINTIFF is neither a holder in due course norentitled to the rights of such a holder pursuant to Fla. Stat. 673.3021. PLAINTIFF did notacquire the Subject Note for value or in good faith and/or PLAINTIFF had express orconstructive knowledge that the Subject Note was in default when it was acquired by

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PLAINTIFF. It is believed that PLAINTIFF is not in possession of the Subject Note.DEFENDANTis not obliged to pay the instrument unless and until PLAINTIFFproves to be aholder in due course pursuant to Fla. Stat. 673.3051.

Eighth Affirmative DefenseSubject Note isNon-Negotiable52. In the alternative, DEFENDANT alleges that the Subject Note is not a

negotiable instrument within meaning of Fla. Stat. 673.041 (l)(C) (2006). Specifically,theSubject Note: (1) provides for late fees in Section 7, subsection (A); and (2) is an adjustable ratenote, meaning that there is no promise to pay a fixed sum certain. Consequently, the lawgoverning negotiable instruments, as set forth in Fla. Stat. 673 et seq. (2006), does not apply tothis Note. See GeneralMotors Acceptance Corp. v. Honest Air Conditioning &Heating, Inc., et.al., 933 So. ad 34 (Fla. ad DCA2006); Wells Fargo Bank, NA v. Christopher Chesney, et al.,Case No. 51-2009-CA-6509-WS/G (6th Jud.Cir.Pasco.Cty. 02/22/2010 Hon. Stanley R. Mills,Judge).

Ninth Affirmative DefenseLack ofCapacity; Dissolved/Inactive Trust53. Itis believed that the SUBJECTTRUSTis no longer an active trust and/or has

been dissolved. On or about January 17, 2008, the Depositor for the Trust, INDYMACMBS.,INC., filed a Form 1Sd-6 Notice of Suspension of Duty to File Reports with the Securities andExchange Commission.

Tenth Affirmative DefenseLack of capacity; mtra ViresActs in violation of governing trust document54. As mentioned herein, PLAINTIFF appears in this case pursuant to a Pooling

and ServicingAgreement (the "Agreement''), the trust instrument that sets forth all of the rights,powers, obligations, limitations and duties of PLAINTIFF. The four corners of the Agreementbind the SUBJECTTRUST to the only actions which can lawfully be taken with respect to theadministration of its assets and establish the only mechanism by which this purportedCorporate Trust may acquire, transfer, dispose of, or sell any asset. The Agreement is filed ofrecord with the Securities and Exchange Commission ("SEC")and is a matter of public record; itcan be found on the SEC's EDGAR ONLINE website athttp://www.secinfo.com/dv4at.t4.2.htm.

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http://www.secinfo.com/dv4at.t4.2.htm.http://www.secinfo.com/dv4at.t4.2.htm.


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55. The terms of the Agreement are filed under oath with the SECand the partiesto the Agreement have represented under oath to the SECand its investors, certificate holders,and counter-parties, that the entire agreement of the entities, parties, agents, servants, withrespect to the SUBJECTTRUSTare contained within this Agreement and its exhibits.

56. Florida Law, following the Uniform Commercial Code, specifically providesthat the effects of provisions of the code may be varied by agreement. See 671.102(2)(a), Fla.Stat. In the instant case, the express terms of the Pooling and Servicing Agreement controllingthe SUBJECTTRUST,ofwhich the Subject Note and Subject Mortgage are allegedly a part, havevaried the manner inwhich these instruments maybe transferred and subsequently enforced.

57. The Subject Note and Subject Mortgage cannot become part of the pool absentthe PLAINTIFF's compliance with the Pooling and ServicingAgreement. The PLAINTIFFhas noright to enforce the Subject Note and Subject Mortgage, as they have not been transferred intothe corpus or res of the SUBJECTTRUST and are not part of the SUBJECTTRUST's pool ofassets. Additionally, the Pooling and Servicing Agreement alters the method by which theSubject Note may be enforced and renders Fla. Stat. 673, et seq., governing negotiableinstruments, inapplicable to the Subject Note.

58. PLAINTIFF acted ultra vires to its powers under the SUBJECT TRUST bywhich it acts, and is without authority or capacity to act as to res in the dispute. PLAINTIFFand/or its predecessors in interest to the Subject Mortgage and Subject Note failed to abide bythe SUBJECT TRUST's funding and transfer requirements and restrictions in placing theseinstruments within the corpus or res of the SUBJECT TRUST. PLAINTIFF's claim of power,authority or other standing to pursue this action is an ultra vires act over the res of theSUBJECT TRUST. PLAINTIFF's attempt to receive assignment of the Subject Mortgage andTransfer of the Subject Note is well outside the scope of the SUBJECT TRUST's specificrestrictions and isvoid by reason thereof.

Eleventh Affirmative DefensePlaintiff has failed to verify the Complaint59. Upon information and belief, PLAINTIFFfiled the Complaint on February 11,

2010 but failed to verify its Complaint under oath or affirmation, as mandated by Rule 1.110(b)of the Fla. Rules of Civil Procedure, amended by Supreme Court of Florida No. SC09-1460

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(Amendments to the Florida Rules of CivilProcedure, No. SC09-1579),as of February 11,2010states in pertinent part:

"When filing an action for foreclosure of a mortgage on residential real propertythe complaint shall be verified. When verification of a document is required,the document filed shall include an oath, affirmation, or the following statement:"Underpenalty of perjury, I declare that I have read theforegoing, and thefacts alleged therein are true and correct to the best of my knowledge andbelief"60. Additionally, the Complaint does not contain Form 1.942, which is the

affidavit of diligent search and inquiry, as mandated by the cited Florida Supreme CourtAdministrative Order No. SC09-1460. Fla. R. Civ.Pro. 1.420(b) provides, in pertinent part, that".... any party may move for dismissal of an action or of any claim against that party for failureof an adverse party to comply with these rules or any order of court." Thus, any judgment whichis not in compliance with the Florida Rules of CivilProcedure is null and void, and any mortgageforeclosure action filed as of February 11.2010 must be verified. The Supreme Court noted that

The primary purposes of this amendment are: (1 ) to provide incentive for theplaintiff to appropriately investigate and verify its ownership of the note or rightto enforce the note and ensure that the allegations in the complaint are accurate;(2) to conserve judicial resources that are currently being wasted oninappropriately pleaded "lost note" counts and inconsistent allegations; (3) toprevent the wasting of judicial resources and harm to defendants resulting fromsuits brought by plaintiffs not entitled to enforce the note; and (4) to give trialcourts greater authority to sanction plaintiffs who make false allegations. In re:Amendments to the Florida Rules of Civil Procedure, No. SC09-1579, pp. 3-4(Feb. 11,2010).61. The Florida Supreme Court requirement went into effect on February 11,2010.

See Fla. Sup. Ct. Order SC09-1460 and SC09-1579, p. 9-10. The Florida Supreme Courtspecificallystated that the "amendments shall become effective immediately upon the release ofthis opinion." In Re: Amendments to the Florida Rules of CivilProcedure, No. SC09-1460, pp.9-10 (Fla. Feb. 11, 2010.) PLAINTIFF's Complaint has not been verified pursuant to theamended Rule of Civilprocedure 1.110(b)and is consequently subject to dismissal.

Twelfth Affirmative Defense

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Lack of Capacity to Convey (IndyMac)62. PLAINTIFF has attached two Assignments of Mortgage to its Complaint. Both

Assignments were prepared by the law firm of Shapiro & Fishman, LLP, Counsel forPLAINTIFF. The first assignment purports to convey the Subject Mortgage from IndyMac Bank,F.S.B. (Assignor) to IndyMac Federal Bank, FSB (Assignee) on May 8, 2009. The secondassignment purports to convey the Subject Mortgage from IndyMac Federal Bank, FSB(Assignor) to PLAINTIFF (Assignee) on May 11,2009.

63. IndyMac Bank, F.S.B. was closed by the Office of Thrift Supervision on July11, 2008 and was placed into receivership under the Federal Deposit Insurance Corporation(FDIC). Immediately thereafter, a new institution was chartered under the name of IndyMacFederal Bank, FSB. IndyMac Federal Bank, FSB then acquired virtually all of the assets of theformer IndyMac Bank, F.S.B. IndyMac Federal Bank, FSB was placed into a conservatorship,with the FDIC serving as Conservator. OneWest Bank was created on Mar 19, 2009 solely for thepurpose of absorbing the assets of Indymac Federal Bank, FSB from the FDIC.

64. In the assignments attached to the Complaint, PLAINTIFF asserts thatIndyMac Bank, F.S.B. conveyed an interest in the Subject Mortgage over nine months after ithad all of its assets seized by the FDIC, and that IndyMac Federal Bank, FSB conveyed aninterest in the Subject Mortgage two months after it was required to transfer its assets to a thirdparty. On information and belief, PLAINTIFF's predecessor(s) in interest lacked the legalcapacity to execute a valid conveyance of the Subject Mortgage as set forth on the Assignmentsattached to the Complaint.

Thirteenth Affirmative DefenseLack ofAuthority to Convey (IndyMac)65. As stated above, PLAINTIFF asserts that IndyMac Bank, F.S.B. conveyed an

interest in the Subject Mortgage over nine months after it had disposed of all of its assets, andthat IndyMac Federal Bank, FSB, two days later, conveyed the interest two months after it haddisposed of all of its assets. Finally, Plaintiff asserts that the Subject Mortgage was then assignedto a securitization trust which closed in 2007.

66. Moreover, both Assignments are also signed by Erica A. Johnson-Seck, whopurported to be the "Vice President" of (1) the defunct Assignor, IndyMac Bank, F.S.B., and (2)

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ServicingAgreement that controls and applies to the PLAINTIFFand the Subject Mortgage andSubject Note. PLAINTIFF's non-compliance with the conditions precedent to foreclosureimposed on the PLAINTIFF pursuant to the Agreement is an actionable event that makes thefiling of this foreclosure premature based on a failure of a contractual and/or equitablecondition precedent and bars PLAINTIFFfrom maintaining this foreclosure. The special defaultloan servicing requirements contained in the Agreement are incorporated into the terms of theSubject Mortgage contract between the parties as if written therein word for word andDEFENDANT is entitled to rely upon the servicing terms set out in the Agreement.Alternatively or additionally, DEFENDANTis a third-party beneficiary of the Agreement andentitled to enforce the special default servicing obligations of PLAINTIFF specified therein.PLAINTIFF cannot legally pursue foreclosure unless and until it demonstrates compliance withthe foreclosure prevention servicing imposed by the Agreement which governs the SubjectMortgage and Subject Note and limits the actions of PLAINTIFF.

Seventeenth Affirmative DefenseSubject Trust not Registered70. PLAINTIFF purports to act as a trustee but has not alleged compliance with

Fla. Stat. 660, et. seq., requiring the filingof a Declaration ofTrust.

Eighteenth .AffirmativeDefenseCommon-Law Trust Business in Violation ofFlorida Law71. Upon information and belief, PLAINTIFF is doing business in Florida as an

unregistered trust in violation of Florida law. PLAINTIFFpurports to be acting on behalf of theSUBJECT TRUST, which has issued certificates to investors as public securities. Thesecertificates are secured by Florida mortgages, including the Subject Mortgage. Uponinformation and belief, the SUBJECT TRUST is not an express trust under the Florida TrustCode, Fla. Stat. 736, et seq. Instead, it is a common law declaration of trust under Fla. Stat.609, et seq., i.e., an association of two or more persons for the purpose of transacting businessin Florida. Pursuant to Fla. Stat. 609.02, PLAINTIFF,before offering securities in the form ofcertificates to investors, was required to filewith the Secretary of State a true and correct copy ofthe Declaration of Trust under which the SUBJECT TRUST proposed to conduct itsbusiness. Although the SUBJECT TRUST has commenced to transact its business in Florida,upon information and belief, PLAINTIFFhas failed to file its Declaration of Trust, has not paidthe required $350.00 fee, and has not obtained the required certificate from the Department of

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State. Accordingly, the PLAINTIFF is not authorized to do business in the State of Florida andthus lacks the standing and capacity to pursue this action.

Nineteenth Affirmative DefenseBreach of Implied Covenant of Good Faith and Fair Dealing;

Failure of Statutory/Equitable/ Contractual Condition PrecedentHome Affordable Modification Program (HAMP)

72. Upon information and belief, PLAINTIFF's authorized agent is the servicer ofthe Subject Mortgage ("SERVICER").Upon information and belief, PLAINTIFF,by and throughSERVICER, entered into a "Servicer Participation Agreement" (SPA) with FANNIE MAE (asagent for the United States). Pursuant to the SPAand 12U.S.C. 5201 et seq., PLAINTIFFandSERVICERare subject to the U.S. Treasury's modification program guidelines for the MakingHome Affordable Program and the Home Affordable Modification Program. The United StatesTreasury Dept. and other federal agencies established the Home Affordable ModificationProgram (the "RAMP") as part of the Making Home Affordable Program as authorized andenabled by 12USC5201 et seq. The SPAand the HAMP are incorporated into the terms of theSubject Mortgage contract between the parties as if written therein word for word andDEFENDANTis entitled to rely upon the provisions of the HAMP.Alternatively or additionally,because the Subject Mortgage and Subject Note are serviced by PLAINTIFF's authorized agentSERVICER,DEFENDANTis a third-party beneficiary of the SPA.Upon information and belief,neither PLAINTIFF nor SERVICERhave provided DEFENDANTwith the loss mitigation andmodification opportunities as set forth in the Making Home Affordable Program and requiredby the SPA. PLAINTIFFcannot legally pursue foreclosure unless and until such time as all lossmitigation and modification opportunities have been fully afforded to DEFENDANTpursuant tothe Making Home Affordable Program and imposed on PLAINTIFF and/or SERVICERby theSPA.

Twentieth Affirmative DefenseFailure of Statutory Condition Precedent 12U.S.C. 1701X(C)(s)

73. Upon information and belief, PLAINTIFF has failed to comply with theforeclosure prevention loan servicing requirement pursuant to the National Housing Act, 12U.S.C.170IX(C)(5),within 45 days of DEFENDANT'salleged failure to make a timely payment.12 U.S.C. 1701x(c)(5) requires all private lenders servicing non-federally insured home loans(including PLAINTIFF) advise borrowers (including DEFENDANT) of any home ownership



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counseling they offer, together with information about counseling offered by the U.S.Department of Housing and Urban Development ("H.U.D."). H.U.D. has determined that 12U.S.C.1701X(c)(s)creates an affirmative legal duty on the part of a plaintiff. PLAINTIFF's non-compliance with the requirements of the law makes the filing of this action premature based ona failure of a statutory condition precedent. PLAINTIFFcannot legally pursue foreclosure unlessand until PLAINTIFFdemonstrates compliance with 12U.S.C.1701X(C)(s).

Twenty-First Affirmative DefenseViolation of the Fair Debt Collection Practices Act (Shapiro &Fishman, LLP)

74. The law firm of Shapiro and Fishman, LLP, Counsel for Plaintiff, is considered a"Debt Collector" pursuant to the Fair Debt Collection Practices Act, 15U.S.C. 1692 et seq. (the"FDCPA"),and is subject to the requirements and obligations ofthe FDCPA. The stated purposeof the FDCPA is "to eliminate abusive debt collection practices by debt collectors ... and topromote consistent State action to protect consumers against debt collection abuses." 15U.S.C.1692(e). DEFENDANTmailed and faxed a request for verification of the alleged debt to Counselfor Plaintiff pursuant to the FDCPA. 'Thedebt verification provided by Shapiro &Fishman, LLPfailed to complywith the FDCPAin that it did not provide a transaction history for the life of theDEFENDANT's mortgage loan. 'The FDCPArequires that Plaintiff cease all collection efforts,including litigation, until complete verification of the disputed amount of the debt is provided.See 15U.S.C.1692(g).As of the filing ofthis answer, Shapiro &Fishman, LLPhas not respondedto DEFENDANT'snotice of the FDCPAviolation and has not complied with the FDCPA,whichhas unfairly prejudiced DEFENDANT in this action. DEFENDANT is entitled to a completeitemized transaction history under the FDCPA and accordingly reserves her right to pursuecounterclaims regarding this matter.

Twenty-Second Affirmative DefenseFailure to Provide 30-Day Notice ofAssignment .

75. An assignee of a mortgage and note must give the debtor written notice of suchassignment within thirty (30) days after the assignment. See ss9.71s, Fla. Stat. Uponinformation and belief, PLAINTIFFfailed to complywith this notice of assignment.

Twenty-Third Affirmative DefenseFailure to Post Nonresident Cost Bond

76. If PLAINTIFF seeks to proceed as a foreign corporation which is not doingLegal AidService of Collier CountyDefendant's Answer and Mfirmative Defenses- Page 17


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business in Florida, it must file a non-resident cost bond pursuant to Fla. Stat. s7.011.DEFENDANThereby notifies PLAINTIFFthat a non-resident cost bond is required and has notbeen filed within 30 days of commencement of this action. After the expiration of 20 days fromthe date of this notice, this additional ground for dismissal will become ripe for argument andruling.

Twenty-Fourth Affirmative DefenseFailure to Include Necessary Party(ies)77. The Subject Mortgage provides that the Subject Note or a partial interest in the

Note can be sold one or more times. Upon information and belief, the Subject Note was bundledwith other notes pursuant to the SUBJECTTRUST, a Real Estate Mortgage Investment Conduit("REMIC").The Subject Mortgage and Subject Note, if they were indeed delivered and assignedto PLAINTIFF,were done so for the benefit of certificate holders of the SUBJECTTRUSTwhichPLAINTIFFpurports to represent as Trustee. As partial owners of the payments on the SubjectNote, these certificate holders and all other intermediate assignees are necessary parties to thisaction.

78. Additionally, a review of the named Mortgagee's website, available online athttps:JJwww.mers-servicerid.orgJsisJ (the MERS-Servicer Identification System), identifies thatGoldman Sachs Mortgage Company may have some interest in the Subject Mortgage andJorNote as an "Investor", and that the Servicer of the Subject Mortgage is OneWest Bank, FSB.

Twenty-Fifth Affirmative DefenseViolation ofthe Truth-In-Lending-Act Section 131(g)79. Section 131(g)of the Truth in Lending Act (15 USC 1641) ("TILA")requires

that the new owner or assignee of a mortgage loan must notify the borrower in writing withinthirty (30) days after the mortgage loan is sold or otherwise transferred. The notice must include(1) The assignee's identity, address and phone number; (2) The date of transfer; (3) Contactinformation for an agent or party having authority to act on behalf of the assignee; (4) Thelocation of the place where transfer of ownership of the debt is recorded; and (5) Any otherrelevant information regarding the assignee. Upon information and belief, PLAINTIFFhas notprovided the foregoing notice to DEFENDANT.DEFENDANTreserves the right to pursue thisas an additional cause of action against PLAINTIFFpending the completion of discovery.

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Twenty-Sixth Affirmative DefenseFailure toProperly Allege a Cause ofAction Pursuant toFla.Stat. Z1.01180. The complaint fails to provide the original Subject Mortgage and does not seek

to reestablish it as required by Fla. Stat. 71.0n(s). PLAINTIFF has not alleged the time andmanner of the loss or destruction, or even if the original Subject Mortgage was lost or destroyed.Furthermore, PLAINTIFF fails to allege any showing that it ever possessed the original SubjectMortgage.

Twenty-Seventh Affirmative DefenseLack of Consideration81. On information and belief, the named Mortgagee, MERS, gave no

consideration to the DEFENDANT in exchange for the grant of the Subject Mortgage.Twenty-Eighth Affirmative DefenseNotice of Infirmities

82. On information and belief, if the Subject Note was ever lawfully transferred toPLAINTIFF, then PLAINTIFF accepted the Subject Note with knowledge that it was overdueand/or that it contained an unauthorized signature and/or that it had been altered. See673.3021, Fla. Stat.

Twenty-Ninth Affirmative DefenseImproper Charges Added toBalance83. Upon information and belief, PLAINTIFF has added improper charges to the

alleged debt owed by DEFENDANT. On information and belief, PLAINTIFF's lack of standing,lack of capacity, failure to meet all statutory, contractual, and equitable conditions precedent,improper servicing, and ultra vires acts, inter alia, in these proceedings have added unlawfulcharges and fees to the alleged debt owed by DEFENDANT including but not limited to a titlesearch expense, advanced Ad Valorem taxes, premiums on insurance, improper attorneys feesand other costs. Moreover, Shapiro and Fishman, LLP's noncompliance with the Fair DebtCollection Practices Act is impairing DEFENDANT's ability to more thoroughly examine thesecharges.

Thirtieth Affirmative DefenseNo Right toAccelerate

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84. Paragraph 22 of the Subject Mortgage requires Notice ofAcceleration be givenby the "Lender", as defined therein, at least 30 days prior to the initiation of legal proceedings.Additionally, the notice must sent by first class mail to the DEFENDANT.On information andbelief, PLAINTIFF failed to give the requisite notification before filing suit. The notice ofacceleration is both a covenant and condition precedent to filing this action, and PLAINTIFF'somission accordingly constitutes a failure of both. PLAINTIFFmay not commence nor pursuethis action until it complies with this condition precedent.

Thirty-First Affirmative DefenseNo Legal Damages85. Upon information and belief, the Subject Note has been paid in whole or in

part by one or more undisclosed third partyfies) who, prior to or contemporaneously with theclosing onthe "loan", paid LENDER in exchange for certain unrecorded rights to the revenuesarising out of the loan documents. As such, PLAINTIFFhas no financial interest in the SubjectNote or Subject Mortgage. Upon information and belief, the revenue stream deriving from theSubject Note and Subject Mortgage was impaired or impeded upon one or more assignments ofthe instruments to third parties and parsing of obligations as part of the securitization process,some ofwhom were joined as co-obligors and co-obligees in connection with the closing. To theextent that PLAINTIFF has been paid on the underlying obligation or has no legal interesttherein or in the Subject Note or Subject Mortgage, PLAINTIFFhas suffered no legal damages.

Thirty-Second Affirmative DefenseCollateral Source Payments ISetoff86. DEFENDANTdemands credit for, and application of, any and all collateral

source payments PLAINTIFFor beneficiaries of the SUBJECTTRUSThave received or will beentitled to receive from any source whatsoever as a result of the default claimed, including creditdefault insurance, credit default swaps, whether funded directly by insurance and/or indemnityagreement or indirectly paid or furnished by means of federal assistance (i.e. TARP funds,HAMP Servicer Incentives) on an apportioned basis for loans or groups of loans to which theSubject Mortgage and Subject Note is claimed.

Thirty-Third Affirmative DefenseImproper Attorney's Fees

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87. PLAINTIFF is not entitled to attorney's fees due to the nature of therelationship between PLAINTIFF,its agents, and the subject matter of this action.

Thirty-Fourth Affirmative DefensePrincipal Place of Trust Administration

88. Upon information and belief, the State of Florida is not PLAINTIFF's PrincipalPlace of Trust Administration. A trustee is under a continuing duty to administer the trust at aplace appropriate to its purposes and its administration. Although PLAINTIFFmay transfer theSUBJECTTRUSTs principal place of administration to the State of Florida, it must first complywith the procedure(s) outlined under the Florida Trust Code.See 736.0108, Fla. Stat.

Thirty-Fifth Affirmative DefenseFailure of Covenant of Good Faith and Fair Dealing:Unfair and Unacceptable Loan Servicing

89. Upon information and belief, PLAINTIFFhas failed to provide DEFENDANTwith legitimate and non-predatory access to the debt management and relief that must be madeavailable to borrowers, including DEFENDANT.Such relief must include, among others things,temporary indulgence, a liquidating plan, and special forbearance designed to avoid residentialforeclosure of single family loans secured by and/or underwritten by FANNIE MAE. Uponfurther information and belief, PLAINTIFF failed its obligation to DEFENDANT to pursueeffective foreclosure prevention strategies and did not evaluate the particular circumstancessurrounding DEFENDANT's alleged default; failed to evaluate DEFENDANT or the SubjectProperty; failed to determine DEFENDANT'scapacity to pay the monthly amount or a modifiedpayment amount; failed to ascertain the reason for DEFENDANT'salleged default, or the extentof DEFENDANT's interest in keeping the Subject Property. Upon information and belief,PLAINTIFFfailed to complywith a FANNIEMAErepayment plan, modification plan, or specialforbearance workout programs. As such, PLAINTIFF denied DEFENDANTthe required accessto explore alternatives to avoid foreclosure. PLAINTIFFhas failed to act in good faith or to dealfairly with DEFENDANTby failing to followthe applicable standards of residential single familymortgage lending and servicing as described in these affirmative defenses thereby denyingDEFENDANTaccess to the residential mortgage servicing protocols applicable to the SubjectNote and Subject Mortgage.

Thirty-Sixth Affirmative Defense



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Proximate cause90. While denying that PLAINTIFF has suffered any injuries and/or damages,

DEFENDANT affirmatively states that the sole proximate cause or, in the alternative, thecontributing proximate causes of the injuries and damages claimed by PLAINTIFF, if there areany, were the actions and omissions of persons or companies other than DEFENDANTand forwhich DEFENDANTcannot be held liable.

Thirty-Seventh Affirmative DefenseUncleanHands91. DEFENDANT asserts and alleges all other facts referenced in the previous

affirmative defenses and that PLAINTIFFcomes to this Court with unclean hands. Historically,equitable courts developed to provide a forum of justice for litigants when law courts, whichcontained rigid principles and restrictive technicalities, were deficient. As such, equity courtswere created to do justice between the litigants. Therefore, "a court of equity is a court ofconscience; it should not be shackled by rigid rules of procedure and thereby preclude justicebeing administered according to good conscience."With respect to foreclosures, the general rulein Florida is that the foreclosure must not be unconscionable or inequitable. As a matter ofequity, this Honorable Court should refuse to foreclose the Subject Mortgage becauseacceleration of the Subject Note would be inequitable, unjust, and the circumstances of this caserender acceleration unconscionable. This honorable Court should refuse the acceleration anddeny foreclosure because, among other things, PLAINTIFFhas waived the right to accelerationor is estopped from doing so because of misleading conduct and unfulfilled contractual andequitable conditions precedent.

DEFENDANTRESERVESTHE RIGHTTOFURTHERPLEADDEFENSESOFWHICH IT BECOMESAWARETHROUGHDISCOVERYOROTHERWISE.

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WHEREFORE. DEFENDANT, MARY SUPPLEE, respectfully requests this honorableCourt to enter judgment against PLAINTIFF, DEUTSCHE BANK NATIONAL TRUSTCOMPANY, AS TRUSTEE OF THE INDYMAC INDX MORTGAGE TRUST 2007-FLX1,MORTGAGE PASS-THROUGH CERTIFICATES,SERIES 2007-FLX-1, UNDER THE POOUNGAND SERVICING AGREEMENT, DATED JANUARY 1, 2007; deny PLAINTIFF's requestedrelief of foreclosure; award attorneys fees pursuant to the terms of the Subject Mortgage andSubject Note PLAINTIFF is seeking to enforce and Fla. Stat. 57.105(7) and Fla. Stat. 59-46.;and send PLAINTIFF forthwith without day.

Respectfully Submitted,

LEGALAID SERVICE OF COLUER COUNTYCounsel for Defendant Mary Supplee4125 East Tamiami Trail Naples, FL 34112Tel: 2 - 775-4555 F . 239-775-3887

Jos h Klein, Esq.Fla. Bar [email protected]

CERTIFICATE OFSERVICEI hereby certify that a true and correct copy of the foregoing has been sent via U.S. Mail

and FAX on this 21 sJ - day of O(1_.CQJrltxLr ,2010 to SHAPIRO & FISHMAN, LLP,Attorneys for Plaintiff, 4630 Woodland Corporate Blvd. Suite 100, Tampa, FL 33614.

~:~Joseph Klein, Esq.Fla. Bar 0050943
mailto:[email protected]:[email protected]

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Answer with Affirmative Defenses #2

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