Rash Answer to Complaint 08-20-2012 Corrected

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8397 N.W. 26 St. • Sunrise, FL 33322 Melissa Rash, in pro per Phone 919-274-6248 [email protected]

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT

IN AND FOR BROWARD COUNTY, FLORIDA

WELLS FARGO BANK, N.A.

Plaintiff

v.

MELISSA RASH, ET AL.

Defendants

CASE NO. 12-22833

ANSWER OF DEFENDANT MELISSA RASH

Comes now Defendant Melissa Rash and answers as follows:

1. Paragraph 1 is admitted

2. Paragraph 2 is generally denied. Defendant Melissa Rash specifically denies

that she has ever had any business relationship with Plaintiff. Defendant admits

that on July 2, 2004, there was executed and delivered a Promissory Note

("Note") and or the Mortgage securing payment of the Note, but denies that said

note was delivered to Plaintiff or Plaintiffs predecessor in interest on that day or

any other day. Defendant specifically denies that the copy of the referenced

document is a true copy of any document signed by her, and further denies that

the copy attached to the complaint contains all of the endorsements or any

allonge affixed to the original note.

3. Paragraph 3 is denied.


Answer of Defendant Melissa Rash Case No. 12-22833 August 20th, 2012

8397 N.W. 26 St. • Sunrise, Florida 33322 Melissa Rash, in pro per Phone 919-274-6248 [email protected]

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5. Paragraph 5 is denied. Defendant specifically alleges that she made all

payments under the mortgage and note to Plaintiff, erroneously believing that

Plaintiff was the agent for the holder of the note until April 18, 2012, when she

made a payment of $650.00 which was accepted by Plaintiff. After that date

Defendant continuously tendered payment to Plaintiff but the payment was

refused.

6. Paragraph 6 is denied. Defendant Melissa Rash denies that she owes any

amount to Plaintiff Wells Fargo Bank. Defendant further denies that she owes

the sum of $119,107.49 to Wells Fargo Bank or anyone else.

7. Paragraph 7 is denied and Defendant demands strict proof.

8. Paragraph 8 is admitted.


10. Defendant has no knowledge of the facts stated in Paragraph 10 which is

therefore denied and Defendant requires strict proof.

11. Defendant denies that Plaintiff has any valid lien on the subject property and

therefore denies Paragraph 11 in its entirety.

12. Defendant denies the re-alleged allegations in Paragraph 12.


14. Paragraph 14 is admitted.

15. Defendant demands strict proof of Paragraph 15 and so it is denied.

16. Defendant has no information as to the intention of any parties other than

herself and therefore denies Paragraph 16 and demands strict proof.




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AFFIRMATIVE DEFENSES

AS A FIRST AFFIRMATIVE DEFENSE, defendant states that plaintiffs complaint fails to

state a cause of action upon which relief requested may be granted and therefore this

action is barred.

AS A SECOND AFFIRMATIVE DEFENSE, defendant states that plaintiff does not have the

capacity to sue or bring this action and this action is therefore barred.

AS A THIRD AFFIRMATIVE DEFENSE, defendant states that plaintiff is not the real

party in interest and or duly authorized agent of same upon which plaintiff's alleged

claim is based and therefore has no standing to bring this action.

AS A FOURTH AFFIRMATIVE DEFENSE, defendant states that plaintiff failed to perform

conditions precedent to the initiation of this action and or for acceleration of payments

allegedly due. As a result, defendant has been denied a good faith opportunity,

pursuant to the mortgage and the servicing obligations of the plaintiff, to avoid

acceleration and this foreclosure.

AS FIFTH AFFIRMATIVE DEFENSE, defendant asserts all terms and condition of the

promissory note and mortgage upon which plaintiff’s alleged claim is based.

AS A SIXTH AFFIRMATIVE DEFENSE, defendants assert all requirements of applicable

mortgage foreclosure statutes.

AS A SEVENTH AFFIRMATIVE DEFENSE, defendant states that plaintiff is not the lawful

assignee of the Promissory Note and Mortgage upon which plaintiff's alleged claim is

based.



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AS AN EIGHTH AFFIRMATIVE DEFENSE, defendant states that plaintiff cannot produce

the original Promissory Note and Mortgage upon which this action is based and

therefore relief requested is barred.

AS A NINTH AFFIRMATIVE DEFENSE, defendant states that plaintiff is not the holder of

the Promissory Note and Mortgage upon which this action is based and therefore relief

requested is barred.

AS A TENTH AFFIRMATIVE DEFENSE, defendant states that plaintiff is not the owner of

the Promissory Note and Mortgage upon which this action is based and therefore relief

requested is barred.

AS AN ELEVENTH AFFIRMATIVE DEFENSE, defendant states that plaintiff is not in

possession of the Promissory Note and Mortgage upon which this action is based and

therefore relief requested is barred.

AS A TWELFTH AFFIRMATIVE DEFENSE, defendant states that upon information and

belief, the note has been paid in full by an undisclosed third party who prior to or

contemporaneously with the closing on the loan transaction paid the Lender in

exchange for certain unrecorded rights to the revenues arising out of the loan

documents. Upon information and belief, Plaintiff has no financial interest in the note or

mortgage. Upon information and belief the missing assignments on the note may have

made it void and a legal nullity, thus they have exploited key and vital evidence or

shipped same off-shore to a structured investment vehicle that also has no interest in

the note or mortgage or the revenue therefrom.

AS A THIRTEENTH AFFIRMATIVE DEFENSE, defendant states that plaintiff's claim is

barred by the statute of frauds, laches and or the statute of limitations.

AS A FOURTEENTH AFFIRMATIVE DEFENSE, defendant states that plaintiffs claim is

barred and or limited for violation of the Federal Truth in Lending Act.



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AS A FIFTEENTH AFFIRMATIVE DEFENSE, defendant states that plaintiff's claim is

barred and or limited for violation of RESPA. Upon information and belief, Plaintiff and

or its predecessor(s) in interest violated various provisions of the Real Estates

Settlement Procedures Act ("RESPA"), which is codified at 12 U.S.C section 2601, et seq.

by, inter alia:

a) Failing to provide the Housing and Urban Development (HUD) special

information booklet, a Mortgage Servicing Disclosure Statement, and Good Faith

Estimate of settlement/closing costs to Defendant at the time of the loan application or

within three (3) days thereafter;

b) Failing to provide Defendants with an Escrow Disclosure Statement for each year

of the mortgage since its inception;

c) Giving or accepting fees, kickbacks and or other things of value in exchange for

referrals of settlement service business, and splitting fees and receiving unearned fees

for services not actually performed;

d) Charging a fee at the time of the loan closing for the preparation of Truth In-

Lending, Uniform Settlement and Escrow Account statements.

e) Other violations which will be revealed by Discovery.

AS A SIXTEENTH AFFIRMATIVE DEFENSE, defendant states that plaintiff’s claim is

barred and or limited for violation of the state and or federal Fair Debt Collection

Practices Act.

AS A SEVENTEENTH AFFIRMATIVE DEFENSE, defendant states that plaintiff’s claim for

attorney’s fees is barred for failure to perform and or meet conditions precedent under

the promissory note and or mortgage upon which action is allegedly based.

Alternatively, there is no valid contract or other written agreement between the parties

permitting the award of attorney's fees in connection with this action.



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AS AN EIGHTEENTH AFFIRMATIVE DEFENSE, defendant states that plaintiff comes to

court with unclean hands and is prohibited by reason thereof from obtaining the

equitable relief of foreclosure from this court. The plaintiff’s unclean hands result from

the plaintiff’s improvident and predatory intentional failure to comply with material

terms of the mortgage and note; the failure to comply with the default loan servicing

requirements that apply to this loan, as described hereinabove. As a matter of equity,

this court should refuse to foreclose this mortgage because acceleration of the note

would be inequitable, unjust, and the circumstances of this case render acceleration

unconscionable. This court should refuse the acceleration and deny foreclosure because

plaintiff has waived the right to acceleration or is estopped from doing so because of

misleading conduct and unfulfilled contractual and equitable conditions precedent.

AS A NINETEENTH AFFIRMATIVE DEFENSE, defendant states that, of her own personal

knowledge, Defendant has made all payments required by law under the

circumstances; however Plaintiff and/or its predecessor(s) in interest improperly

applied such payments resulting in the fiction that Defendant was in default. Defendant

is entitled to a full accounting through the master transaction histories and general

ledgers for the account since a dump or summary of said information cannot be relied

upon to determine the rightful amounts owed. Further, the principal balance claimed as

owed is not owed and is the wrong amount; the loan has not been properly credited or

amortized. Additionally, Plaintiff wrongfully placed forced insurance on the property

and or is attempting to collect on property taxes, insurance and fees not owed.

AS A TWENTIETH AFFIRMATIVE DEFENSE, defendant states that plaintiff failed to

comply with the foreclosure prevention loan servicing requirement imposed on plaintiff

pursuant to the National Housing Act, 12 U.S.C. 170lx(c)(5) which requires all private

lenders servicing non-federally insured home loans, including the Plaintiff, to advise

borrowers of any home ownership counseling plaintiff offers together with information



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about counseling offered by the U.S. Department of Housing and Urban Development.

The U.S. Department of Housing and Urban Development has determined that 12

U.S.C. 170lx(c)(5) creates an affirmative legal duty on the part of the plaintiff. Plaintiff’s

non-compliance with the law's requirements is an actionable event that makes the filing

of this foreclosure premature based on a failure of a statutory condition precedent to

foreclosure which denies plaintiff’s ability to carry out this foreclosure. Plaintiff cannot

legally pursue foreclosure unless and until plaintiff demonstrates compliance with 12

U.S.C. 1701x(c)(5).

AS A TWENTY-FIRST AFFIRMATIVE DEFENSE, defendant states that plaintiff has

charged and or collected payments from defendant for attorney’s fees, legal fees,

litigation attorney fees, foreclosure costs, late charges, property inspection fees,

"property valuation" charges, and other charges and advances, and predatory fees, force

placed insurance and other charges that are not authorized by or in conformity with the

terms of the subject note and mortgage. Plaintiff wrongfully added and continues to

unilaterally add these illegal charges to the balance plaintiff claims is due and owing

under the subject note and mortgage.

AS A TWENTY-SECOND AFFIRMATIVE DEFENSE, defendant states that plaintiff failed to

provide defendant with legitimate and non-predatory access to the debt management

and relief that must be made available to borrowers, including this defendant pursuant

to and in accordance with the Pooling and Servicing Agreement or other trust

agreements that controls and applies to the subject mortgage loan. Plaintiff's non-

compliance with the conditions precedent to foreclosure imposed on the plaintiff

pursuant to the applicable pooling and servicing agreement is an actionable event that

makes the filing of this foreclosure premature based on a failure of a contractual and or

equitable condition precedent to foreclosure which denies plaintiff’s ability to carry out

this foreclosure. Plaintiff cannot legally pursue foreclosure unless and until plaintiff



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demonstrates compliance with the foreclosure prevention servicing imposed by the

subject pooling and servicing or trust agreement under which the plaintiff allegedly

owns the subject mortgage loan.

AS TWENTY-THIRD AFFIRMATIVE DEFENSE, Defendant is informed and believes that

World Savings Bank collateralized this loan and included it in a portfolio of similar

transactions, which were guaranteed by a Fannie Mae Guaranteed Mortgage Pass-

Through Certificate, or similar Government or Commercial mortgage insurance.

Defendant is informed and believes that Plaintiff has been fully paid pursuant to that

program, and is therefore “double-dipping” by attempting to obtain a second payment

from Defendant.

AS TWENTY-FOURTH AFFIRMATIVE DEFENSE, Plaintiff is informed and believes, and

therefore alleges, that the note and mortgage affixed to the complaint were and are

subject to the procedures and limitations of SVC-2010-13, Mandatory Pre-filing

Mediation Policy for Mortgage Loans. Plaintiff is precluded by Federal law from

proceeding with any judicial foreclosure until and unless the pre-foreclosure

procedures are followed. Plaintiff has not followed any of the said procedures. A

request for judicial foreclosure is therefore premature and this action therefore must be

dismissed.

AS A TWENTY-FIFTH AFFIRMATIVE DEFENSE, in Order Number 2009-12-Civ,

“Administrative Order Establishing Summary Judgment Foreclosure Procedures,”

dated February 9, 2009, the Circuit Court Of The Seventeenth Judicial Circuit In And

For Broward County, Florida established certain procedures as to settlement

agreements between parties to a mortgage which must be followed both before

summary judgment is heard, and before an action may be filed. Plaintiff has followed

none of these procedures. This action is therefore premature and should be dismissed

until the stated procedures are followed.



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AS A TWENTY-SIXTH AFFIRMATIVE DEFENSE, Defendant is informed and believes, and

therefore alleges, that Plaintiff breached its duties of good faith and fair dealing in its

contractual relationship with Defendant. Plaintiff stood to profit by declaring a

fraudulent default under the subject loan, collecting from the guarantee for such

default, and then enforcing the subject loan against Defendant, after it had been fully or

partially reimbursed, and failing to credit any of the reimbursement to Defendant.

AS A TWENTY-SEVENTH AFFIRMATIVE DEFENSE, Defendant alleges the following; The

note affixed to the contract states, “If I am in default, the Lender may send me a written

notice called "Notice of Default" telling me that If I do not pay the overdue amount by a

certain date, the Lender may require me to pay immediately the amount of Principal

which has not been paid and all the Interest that I owe on that amount, plus any other

amounts due under the Security Instrument.” Plaintiff never provided Defendant any

notice of a claimed default, and likewise never extended to Defendant her contractual

right to cure said alleged default by a date certain.

AS A TWENTY-EIGHTH AFFIRMATIVE DEFENSE, Defendant alleges as follows: Plaintiff

accepted payments from Defendant from February 27, 2012 to April 18, 2012, a period

of time during which Plaintiff alleges Defendant was in default. Although the Note and

the Mortgage specify that the waiver of any default does not waive the rights of the

Plaintiff for future defaults, as a matter of law the acceptance of payments during this

period waives the current default, if any exists.

AS A TWENTY-NINTH AFFIRMATIVE DEFENSE, Defendant alleges as follows: The

mortgage affixed to the Complaint states:

“Unless the law requires otherwise, Lender will apply each of my payments under

the Secured Notes and under Paragraphs 1 and 2 above in the following order and for

the following purposes:

First, to pay prepayment charges due under the Secured Notes,



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Second, to pay any advances due to Lender under this Security Instrument,

Third, to pay the amounts due to Lender under Paragraph 2 above,

Fourth, to pay interest due under the Secured Notes,

Fifth, to pay deferred 1nterest due under the Secured Notes,

Sixth, to pay principal due under the Secured Notes,

Last, to pay late charges due under the Secured Notes.”

At least from February 27, 2012 to April 18, 2012 (when Plaintiff refused to accept

any further payments) Defendant was making regular payments in the amount

demanded by Plaintiff, but Plaintiff was not applying the payment to any of the

purposes stated in the mortgage. Defendant cannot determine with exactness where

the payments were applied, but it appears that the payments were applied to unknown

expenses or fees other than late charges, such as attorney’s fees, which were not

permitted under the mortgage and were not authorized by Defendant. This bad faith

by Plaintiff should preclude an acceleration of the entire amount due and should

preclude the assignment of attorney’s fees for failure to pay attorney’s fees.

AS A THIRTIETH AFFIRMATIVE DEFENSE, Defendant states that plaintiff intentionally

failed to act in good faith or to deal fairly with the defendant by failing to follow the

applicable standards of residential single family mortgage servicing as described in

these affirmative defenses thereby denying defendant access to the residential mortgage

servicing protocols applicable to the subject note and mortgage. Plaintiff is not entitled

to any deficiency judgment as it failed to mitigate damages by refusing to accept a deed

in lieu and or short sale offers proposed by or on behalf of defendant. Plaintiff

otherwise failed to mitigate its damages by other factors to be revealed through

discovery.



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AS A THIRTY-FIRST AFFIRMATIVE DEFENSE, defendant states that 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 therefore unconscionable to enforce the mortgage by

foreclosure.

AS A THIRTY-SECOND AFFIRMATIVE DEFENSE, defendant states that plaintiff cannot

prove its case against defendant and therefore this court should enter judgment in

defendant's favor and quiet title in her favor, voiding the alleged promissory note and

mortgage upon which plaintiff seeks to recover herein.

AS A THIRTY-THIRD AFFIRMATIVE DEFENSE, defendant states that plaintiff is liable

for defendant's costs and attorney's fees pursuant to terms of the agreement between

the parties and Florida Statutes, Section 57.105 and or applicable provisions of the state

and federal Fair Debt Collection Practices Act and or the Federal Truth And Lending

Act.

MANDATORY PRE-FILING MEDIATION FOR MORTGAGE LOANS IN FLORIDA

In SVC-2010-13, Mandatory Pre-filing Mediation Policy for Mortgage Loans in

Florida, released on August 31, 2010, Fannie Mae issued a mandatory pre-filing

mediation policy for mortgage loans in Florida. The policy was developed in response

to the December 2009 Florida Supreme Court Administrative Order that required

servicers to conduct mediation with delinquent borrowers during active foreclosure

lawsuits. On August 8, 2012, in “Servicing Guide Announcement SVC-2012-14,” Fannie

Mae announced the Termination of Mandatory Pre-Filing Mediation for Mortgage

Loans in Florida.

Fannie Mae currently requires servicers to assign delinquent mortgage loans

secured by properties in Florida to an attorney from Fannie Mae’s Retained Attorney

Network (RAN) to determine whether the loans are eligible for mediation prior to the



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initiation of foreclosure proceedings. With this Announcement, Fannie Mae is

discontinuing its pre-filing mediation program for mortgage loans in Florida.

Servicers must continue to comply with the delinquency management and default

prevention requirements in the Servicing Guide and in all related Announcements, as

applicable.

Florida borrowers who have opted-in to the pre-filing mediation program prior to

October 1, 2012, will be allowed to complete counseling and attend mediations

pursuant to the current program requirements. Servicers and the Florida RAN law

firms must continue the pre-filing mediation program for those borrowers who have

opted-in prior to October 1, 2012, until either the borrower has completed a mediation

session, or the case has been closed pursuant to the issuance of a Certificate of Non-

Participation in accordance with the current program requirements.

Fannie Mae will pay the pre-filing mediation fees directly to the vendor for those

borrowers who have opted-in prior to October 1, 2012.

Defendant Melissa Rash is informed and believes, and therefore alleges, that the

subject loan was collateralized by World Savings Bank pursuant to a Fannie Mae or

other U.S. Government guarantee, and therefore is subject to these mandatory

provisions.

Defendant Melissa Rash hereby informs Plaintiff that she opts in to the mandatory Fannie Mae Program as described in SVC-2010-13, Mandatory Pre-filing Mediation Policy for Mortgage Loans in Florida, released on August 31, 2010.

These procedures are required to be completed prior to the filing of judicial process.

This action is therefore premature and must be dismissed or held in abeyance pending

the completion of the mandatory provisions described in SVC-2010-13.



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DEMAND FOR DISCLOSURES PURSUANT TO ORDER NUMBER 2009-12-CIV

Pursuant to Order Number 2009-12-Civ the borrower may request any of the

following information and documents from the plaintiff:

Documentary evidence the plaintiff is the owner and holder in due course of the

note and mortgage sued upon.

A history showing the application of all payments by the borrower during the life

of the loan.

A statement of the plaintiff’s position on the present net value of the mortgage loan.

The most current appraisal of the property available to the plaintiff.

Defendant hereby demands the above referenced disclosures from Plaintiff

forthwith.

DEFENDANT’S OFFER TO DO EQUITY

Defendant has at all times offered to pay all amounts actually due under the alleged

agreements. Any deficiency in payments was a result of Plaintiff misapplying

Defendant’s payments to attorney’s fees rather than to principle or interest. Following

the mandatory mediation (at which time the amount of any arrearage can be calculated)

or at such other time when, from the disclosures of Plaintiff herein requested any

arrearage can be calculated, or at such other time ordered by this Court, Defendant

hereby offers and tenders all arrearages actually due to non-payment of principle or

interest since February 27, 2012, the date upon which Plaintiff alleges Defendant ceased

making payments, less the amount of the receipts for payments which Defendant can

produce for payments she made between February 27, 2012 and April 18, 2012, the date

beyond which Plaintiff refused to accept any future payments, and offers to place such

amounts in trust with the Court or other mutually agreeable agent.



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WHEREFORE defendant Melissa Rash requests this court to enter judgment in her

favor, quieting title, awarding costs and attorney's fees for those reasons set forth herein

in addition to other relief deemed proper.

Signed this 20th day of August at Sunrise, Florida.

_____________________________________ Melissa Rash, in pro per 8397 N.W. 26 St. Sunrise, FL 33322 Phone 919-274-6248 [email protected]



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VERIFICATION OF MELISSA RASH

1. My name is Melissa Rash, 8397 N.W. 26 St. Sunrise, Florida 33322. I may be served at this

address.

2. I am over the age of 18 years.

3. I am aware of the obligation of my oath.

4. I am of sound mind and suffer from no disability which would render me incompetent to testify.

5. I have read the attached pleading, “Answer of Defendant Melissa Rash”

6. All factual statements contained therein are true and complete, without material omission, and

made of my own personal knowledge and are made under the penalty of perjury.

7. If asked to personally testify at a hearing in this action I could and would attest to the truth of

these statements.

AND FURTHER, DEPONENT SAYETH NAUGHT.

Executed this ______ day of August, at ______________________, Florida.

(SEAL) _________________________________________ Melissa Rash, Plaintiff in Pro Per



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STATE OF FLORIDA COUNTY OF BROWARD

Melissa Rash, personally appeared before me and took an oath that the above ANSWER OF DEFENDANT MELISSA RASH is true and correct, complete without material omission, of her own personal knowledge. Sworn to and subscribed before me this ________day of August, 2012 by Melissa Rash. ____ Personally Known ____ Produced Identification Type and # of ID____________________________________ ______________________________________ (Signature of Notary) ______________________________________ (Name of Notary Typed, Stamped, or Printed) Notary Public, County of Broward, State of Florida (Seal)



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CERTIFICATE OF SERVICE

I certify that on this 20th of August, 2012, a copy of this pleading was sent by

electronic delivery and mailed, via U.S. Mail, postage and fees paid, with sufficient

postage to insure delivery, to the following:

Aldridge Connors, LLP Att: Suzette A. Maylor Attorney for Plaintiff(s) 7000 West Palmetto Park Rd., Suite 307 Boca Raton, Florida 33433 smaylor @aclawllp.com

_____________________________________ Melissa Rash, in pro per 8397 N.W. 26 Street Sunrise, FL 33322 Phone 919-274-6248 [email protected]

Rash Answer to Complaint 08-20-2012 Corrected

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