IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA. CASE NO.

: 16-2004-CA-6501-XXXX DIVISION: E MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. as Nominee for LITTON LOAN SERVICING, LP, Plaintiff, vs. JONATHAN GEORGE, ET AL., Defendants. _____________________________/
DEFENDANT JONATHAN GEORGES FIRST AMENDED ANSWER TO FIRST AMENDED COMPLAINT, AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND DEMAND FOR JURY TRIAL

COMES NOW, the Defendant and for his first amended answer to amend affirmative defenses and state counterclaims, filed pursuant to and in accordance with the May 14, 2008 order of the court , states: 1. Admit. 2. Admit. 3. Denied because the mortgage cannot bind lenders successors and assigns; the mortgage recites, among other things, that Mortgage Electronic Registration Systems, Inc. is a separate corporation acting solely as nominee and further because it is state law that determines whether MERS is the mortgagee under the security agreement or for any other purpose. 4. Denied because the mortgage secures to the Lender rights in the property and MERS is named solely as a nominee; that the lenders successors and assigns are not bound to MERS as a nominee; that MERS interests in the mortgage and any rights that MERS has in its capacity solely as nominee of the originating lender is limited to the rights allowed to a nominee by law or custom. 5. Denied. 6. Denied. 7. Denied. Defendant denies that this plaintiff has stated a cause of action for foreclosure because on the date this lawsuit was filed the plaintiff was 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. There is no assignment of mortgage (corrective or

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10. 11. 12. 13. 14. 15. 16.

otherwise) that is attached to the plaintiffs first amended complaint or that has been filed by the plaintiff that establishes that the plaintiff owned the mortgage or owned or held the subject promissory note at the commencement of this foreclosure. The note and mortgage attached to the plaintiffs first amended complaint identify that the real party in interest is the originating lender. The plaintiff fails to attach or allege or otherwise identify how Mortgage Electronic Registration Systems, Inc. (MERS) had any right or legal ability to transfer any interest in the subject promissory note. Admit. Denied because there are no payments due from the defendants to the plaintiff and because the defendants were denied and deprived of timely or legitimate access to the special single family loan servicing that the lender of the subject loan is required to provide to borrowers including the defendant under the Fannie Mae and Freddie Mac guidelines set out at www.fanniemae.com and www.freddiemac.com . Denied. Denied. Denied. Denied. Denied. Denied. Denied. AFFIRMATIVE DEFENSES

STATEMENT OF FACTS 1. Defendant purchased this home 15 years ago. 2. Defendant entered into a refinancing transaction in 2003 and executed the note and mortgage which are the subject of this foreclosure action. 3. The subject mortgage loan was serviced and the payments made by defendant were collected by the originating lender and then by Litton Loan Servicing. The plaintiff is responsible and liable herein for all the actions of its predecessor-in-interest; the owner of the subject mortgage loan and the servicer/agent. 4. Defendant lost employment and his income was substantially reduced causing defendant to get behind on his mortgage payments for reasons beyond his control. 5. Defendant called the lender/servicer of the subject mortgage to advise about his financial difficulties and to request assistance in the form of a repayment plan or other forbearance relief designed to avoid foreclosure and the loss of his home.

6. Despite the defendants efforts, the lender/servicer failed, refused and/or neglected to work with the defendant in any reasonable way to avoid foreclosure during the time of his financial difficulties. 7. Instead, the lender/servicer demanded that the loan be immediately brought current or threatened that the defendant would be served with foreclosure papers. 8. The lender/servicer failed, refused and/or neglected to disclose to defendant what options were available to the defendant to catch up his loan payments so as to avoid foreclosure and the loss of his home. 9. The lender/servicer failed, refused and/or neglected to conform to the loan terms or to the applicable default loan servicing obligations for Fannie Mae/Freddie Mac underwritten home loan that apply specifically to the subject mortgage loan. 10. As a result, defendant was not provided with the specialized assistance and default loan servicing that the lender/servicer was obligated to provide that comported with the defendants ability to pay and that served to assist defendant in his efforts to avoid the default and the acceleration of the subject mortgage debt and foreclosure. 11. Plaintiff failed, refused and/or neglected 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 applicable Fannie Mae/Freddie Mac special default loan servicing requirements. Such relief must include, among other things, temporary indulgence, a liquidating plan, and special forbearance designed to avoid residential foreclosure of single family loans secured by and/or underwritten by FANNIE MAE or FREDDIE MAC. 12. Plaintiff failed, refused and/or neglected to perform the special Fannie Mae/Freddie Mac default loan servicing obligations applicable to the subject mortgage loan which obligation is owed to Defendant to pursue effective foreclosure prevention strategies. 13. Plaintiff failed, refused and/or neglected to evaluate the particular circumstances surrounding Defendants claimed default; failed to evaluate Defendant or the subject property; failed to determine the Defendants capacity to pay the monthly payment amount or a modified payment amount; failed to ascertain the reason for the Defendants claimed default, or the extent of the Defendants interest in keeping the subject property.

14. Plaintiff failed, refused and/or neglected to comply with the FANNIE MAE/FREDDIE MAC loss mitigation and foreclosure prevention single family loan servicing guidelines by failing to contact this Defendant regarding the claimed mortgage delinquency to determine whether the Defendant was facing a financial crisis or hardship. 15. The Plaintiff failed, refused and/or neglected to give this Defendant the opportunity to cooperate in resolving the debt. 16. As a result, Plaintiff denied Defendant the required opportunity to avoid foreclosure through early intervention upon delinquency pursuant to the FANNIE MAE/FREDDIE MAC special default loan servicing requirements and standards. 17. Plaintiff failed, refused and/or neglected to comply with the controlling FANNIE MAE/FREDDIE MAC Single Family default loan servicing guidelines by failing to inform Defendant in writing about the applicable foreclosure alternatives in a timely fashion, or at all. 18. Plaintiff failed, refused and/or neglected its duty to Defendant to manage the subject mortgage as required by the FANNIE MAEFREDDIE MAC special foreclosure prevention workout programs which can include and allows for a restructuring of the loan allowing the borrower to pay out delinquent installments or advances to bring the mortgage current. 19. The Plaintiff further denied Defendant access to special forbearance in the form of a written agreement that allowed for the reduction and/or suspension of the Defendants monthly mortgage payments for a specific period to allow the Defendant time to recover from the financial hardship. 20. Under the Fannie Mae/Freddie Mac special foreclosure prevention servicing guidelines, a special forbearance plan can involve changing one or more terms of the subject mortgage in order to help Defendant bring the claimed default current thereby preventing foreclosure. 21. Plaintiffs failure to comply with the FANNIE MAE/FREDDIE MAC repayment plan or special forbearance workout programs denied the Defendant the legally required access to explore alternatives to avoid foreclosure. AFFIRMATIVE DEFENSE NO.1: FAILURE OF CONTRACTUAL CONDITION PRECEDENT: NO NOTICE OF DEFAULT: Plaintiff failed to provide defendant with a Notice of Default and Intent to Accelerate that meets the requirements of Paragraph 22 of the subject mortgage. 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.

AFFIRMATIVE DEFENSE NO. 2 : NO HUD COUNSELING NOTICE: Plaintiff failed to comply with the foreclosure prevention loan servicing requirement imposed on Plaintiff pursuant to the National Housing Act, 12 U.S.C. 1701x(c)(5) which requires all private lenders servicing non-federally insured home loans, including the Plaintiff, to advise borrowers, including this separate Defendant, of any home ownership counseling Plaintiff offers together with information 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. 1701x(c)(5) creates an affirmative legal duty on the part of the Plaintiff. Plaintiffs non-compliance with the laws 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 Plaintiffs 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). AFFIRMATIVE DEFENSE NO.3: FAILURE TO COMPLY WITH APPLICABLE FANNIE MAE/FREDDIE MAC SINGLE FAMILY LOAN SERVICING REQUIREMENTS/ FAILURE OF GOOD FAITH AND FAIR DEALING: UNFAIR AND UNACCEPTABLE LOAN SERVICING: a. Defendant reasserts, alleges and incorporates herein his statement of facts set out hereinabove. b. Plaintiff intentionally failed to act in good faith or to deal fairly with this Defendant by failing to follow the applicable standards of residential single family mortgage lending and servicing as described in these Affirmative Defenses thereby denying this Defendant access to the residential mortgage servicing protocols applicable to the subject note and mortgage. AFFIRMATIVE DEFENSE NO. 4: UNCLEAN HANDS: a. Defendant reasserts, alleges and incorporates herein his statement of facts set out hereinabove. b. The Plaintiff comes to court with unclean hands and is prohibited by reason thereof from obtaining the equitable relief of foreclosure from this Court. c. The Plaintiffs unclean hands result from the Plaintiffs intentional failure to comply with material terms of the mortgage and note in terms of notice of default and intent to accelerate; on account of the plaintiffs failure to comply with the default loan servicing requirements established by FANNIE MAE/FREDDIE MAC that apply to this loan as described herein above. d. 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.

e. 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 conditions precedent. AFFIRMATIVE DEFENSE NO. 5: ILLEGAL CHARGES ADDED TO BALANCE: Plaintiff had no right to file this foreclosure action before performing the special default servicing obligations imposed by the Fannie Mae/Freddie Mace default loan servicing guidelines and therefore plaintiff has charged and/or collected payments from Defendant for attorney fees, legal fees, foreclosure costs, vendor charges, advances, other fees, property preservation charges, inspection fees, late fees, and other charges and advances, and other predatory lending fees and 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. WHEREFORE, Defendant demands the Plaintiffs first amended complaint be dismissed with prejudice, and for his attorneys fees and costs and for all other relief to which this Court finds this Defendant entitled. Counterclaims Count I - Declaratory and Injunctive Relief 1. This is Defendant Georges action for declaratory and injunctive relief against the Plaintiff. 2. Defendant reasserts, alleges and incorporates herein his statement of facts stated above. 3. Plaintiff breached the mortgage contract between the parties by failing, refusing and/or neglecting to comply with the specific default loan servicing obligations which are implied contractual conditions precedent to this foreclosure prior to the commencement of this foreclosure, as set out hereinabove and as follows: a. Defendant defaulted on this residential mortgage which is the subject of this cause due to reasons beyond his control. b. Defendant suffered severe financial hardship and economic setbacks which resulted in defendant not being able to keep current on his mortgage payments.

c. Plaintiff failed to offer or provide defendant with any reasonable offer for or accommodation of loss mitigation in light of the defendants economic hardships which violated the plaintiffs implied contractual obligation to provide special default loan servicing in accordance with the Fannie Mae/Freddie Mac special default loan servicing guidelines before commencing a foreclosure action based on nonpayment. d. Plaintiff breached the mortgage contract between the parties by failing to properly service the defendants home loan under the troubled loan servicing guidelines imposed on and implied within the subject mortgage contract in that Plaintiff failed to offer defendant any reasonable opportunity of loss mitigation in light of the defendants economic hardships which were not of his making or under his control. e. The plaintiff did not evaluate the subject mortgage loan for purposes of modification pursuant to the applicable and controlling servicing obligations incorporated into the mortgage contract between the parties, but instead, plaintiff failed, refused and/or neglected to provide defendant with access to a modification or workout of the subject mortgage reasonably as required by the Fannie Mae/Freddie Mac default loan servicing guidelines implied and incorporated into the parties mortgage contract. 4. The mortgage contract between the parties binds the plaintiff to comply with the Fannie Mae/Freddie Mac special default loan servicing requirements as an implied contractual condition precedent to the declaration of a default for nonpayment, acceleration of the debt on account of nonpayment and also as an implied contractual condition to the pursuit of this foreclosure. 5. The plaintiff did not evaluate defendants troubled loan for purposes of foreclosure avoidance prior to filing this foreclosure action in breach of the mortgage contract between the parties. 6. Plaintiff breached its mortgage contract with the defendant causing defendant to sustain damage and harm in the form of deprivation of defendants right access to the pre-foreclosure prevention services and the mortgage

servicing options that the plaintiff is contractually obligated to provide and to follow in servicing this home loan. 7. As a proximate result of the plaintiffs breach of the parties mortgage contract as set out hereinabove, defendant has sustained monetary damage in the form of all the extra costs and fees associated with this foreclosure that were supposed to be avoided by and through the good faith and timely provision of the Fannie Mae/Freddie Mac special default loan servicing and loss mitigation incorporated by the terms of the subject mortgage and note. 8. Defendant contends that the Plaintiff has no right to pursue this foreclosure because the Plaintiff failed, refused and/or neglected to first provide defendant with the special troubled home loan servicing of this residential mortgage in accordance with the mortgage contract between the parties that impliedly incorporates the provisions of the Fannie Mae/Freddie Mac special default loan servicing guidelines found online at www.fanniemae.com and www.freddiemac.com. 9. Defendant has an implied contractual right pursuant to the terms of the parties mortgage contract set forth hereinabove to receive forbearance, mortgage modification, and other foreclosure prevention loan services from the Plaintiff pursuant to and in accordance with the Fannie Mae/Freddie Mac special default loan servicing guidelines before the commencement or initiation of this foreclosure action. 10. Defendant is in doubt as to his rights and status as a borrower under the Fannie Mae/Freddie Mac special default loan servicing guidelines implied and incorporated into the provisions of the subject mortgage contract between the parties. 11. Defendants doubts about his contract rights to avoid this foreclosure is the direct result of the Plaintiffs failure, refusal and/or neglect to first service the subject troubled loan pursuant to the specific requirements of the mortgage contract which impliedly incorporates the Fannie Mae/Freddie Mac special default loan servicing guidelines before declaring a payment default, accelerating this debt or filing this foreclosure action.

12. Defendant is being denied and deprived by Plaintiff of his implied contractual right to access the special troubled mortgage servicing required under the Fannie Mae/Freddie Mac guidelines imposed on the plaintiff. 13. Defendant is being illegally subjected to this foreclosure action, being forced to defend same, being charged illegal and predatory court costs and related fees and attorney fees, and is having his credit slandered and negatively affected, all on account of the plaintiffs breach of the mortgage contract and all of which constitute irreparable harm to Defendant for the purpose of injunctive relief. 14. As a proximate result of the Plaintiffs unlawful actions, Defendant continues to suffer the irreparable harm described above for which monetary compensation is inadequate. 15. Defendant has a right to access the special troubled home loan servicing prescribed by the parties mortgage contract which incorporates the Fannie Mae/Freddie Mac default loan servicing regulations as described hereinabove. 16. There is a substantial likelihood that Defendant will prevail on the merits of his counterclaim. WHEREFORE, Defendant requests the Court dismiss the Plaintiffs Complaint with prejudice, enter a judgment pursuant to Fla. Stat. 86 declaring that the Plaintiff provide Defendant with access to the special Fannie Mae/Freddie Mac default loan servicing provisions impliedly incorporated into the parties mortgage contract and enjoining the Plaintiff from charging foreclosure fees and costs and from commencing or pursuing this foreclosure until such servicing is provided and for all other relief to which Defendant proves himself entitled including an award of reasonable attorneys fees and costs in this action. Count II - Consumer Collections Act Violation Defendant reasserts, alleges and incorporates his statement of facts set out hereinabove.

17. Defendant is a consumer and the obligation between the parties which is the debt owed pursuant to the subject note and mortgage is a consumer debt as defined in Fla. Stat. Section 559.55(1). 18. Fla. Stat. Section 559.72(9) provides: 559.72 Prohibited Practices generally: In collecting consumer debts, no person shall: (9) claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate or assert the existence of some other legal right when such person knows that the right does not exist. 19. Plaintiff has engaged and continues to engage in consumer collection

conduct which violates Fla. Stat. Section 559.72(g) in the following and other particulars: a. Plaintiff continues to enforce this debt and pursue this foreclosure action even though the Plaintiff knows no such right exists and this foreclosure action is threatening and premature because the Plaintiff has breached the parties mortgage contract by failing, refusing and/or neglecting to service this home loan pursuant to or in compliance with the special foreclosure prevention Fannie Mae/Freddie Mac loan servicing guidelines. b. The Plaintiff continues to claim, attempt, and threaten to enforce this debt through acceleration and foreclosure when the Plaintiff knows that such conduct is premature and in bad faith on account of the plaintiffs breach of the mortgage contract as set forth and described hereinabove. 20. Defendant, as a proximate result of Plaintiffs breach of the parties mortgage contract as described above, has sustained economic damage for which the Defendant is entitled to compensation from the Plaintiff pursuant to Fla. Stat. Section 559.77. WHEREFORE, Defendant requests this Court dismiss the Plaintiffs complaint with prejudice and award Defendant actual or statutory damages, whichever is greater, attorneys fees and costs, and for all other relief to which this Court find Defendant entitled.

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COUNT III: Breach of Fiduciary Duty Defendant reasserts, alleges and incorporates herein his statement of facts. 21. Plaintiff owed Defendant a contractual fiduciary duty to, among other things, act in good faith and in the best interest of Defendant by providing the defendant with the special Fannie Mae/Freddie Mac troubled home loan servicing that is impliedly incorporated into the subject mortgage between the parties. 22. Plaintiff failed, refused and/or neglected to carry out and therefore breached its contractual fiduciary duties owed to Defendant in connection with the servicing of the subject home loan. 23. As a result of the plaintiffs breach of it contractual fiduciary duty, Defendant has sustained monetary damage which include having to defend this foreclosure and being charged illegal and predatory servicing charges, court costs and related fees and attorneys fees, and having his credit slandered and negatively affected. WHEREFORE, defendant requests the court dismiss this action and demands judgment against the plaintiff for his damages, for an award of attorneys fees and for all other relief as the Court deems proper. COUNT IV: Breach of Obligations of Good Faith and Fair Dealing Defendant reasserts, alleges and incorporates herein his statement of facts. 24. Plaintiff owes defendant a contractual duty under the terms of the parties mortgage contract to act in good faith and to deal fairly with defendant by complying with the Fannie Mae/Freddie Mac special default loan servicing guidelines prior to filing this foreclosure action. 25. Plaintiff materially breached its implied contractual duties of good faith and fair dealing imposed by the terms of the parties mortgage contract as described hereinabove proximately resulting in damage to defendant as described hereinabove.

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WHEREFORE, Defendant requests the court dismiss this action and demands judgment against the plaintiff for his damages, for an award of attorneys fees and for all other relief to which defendant proves himself entitled. COUNT V: Breach of Contract Defendant reasserts, alleges and incorporates herein his statement of facts. WHEREFORE, Defendant requests the court dismiss the plaintiffs action and demands judgment against the plaintiff for his damages, for an award of attorneys fees and for all other relief to which defendant proves himself entitled.
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished to Charles Gufford, Butler & Hosch, P.A., 3185 South Conway Road, Suite E, Orlando, Florida 32812 and via fax to (407) 381 5577 this __________________________. JACKSONVILLE AREA LEGAL AID, INC. ________________________ April Carrie Charney Florida Bar No. 310425 126 West Adams Street Jacksonville, Florida 32202 (904) 356-8371, ext. 373 (904) 224-7050 fax april.charney@jaxlegalaid.org

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