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1 J?txC' IN 111£ CIRCUIT COURT OF THE ELEVENTH


JUDICIAL ClRCUlT IN AND FOR M1AM1-
DADE C01JNTY, FLORIDA

DEUTSCHE BANK NATIONAL TRUST


COM1)ANY. AS TRUSTEE UNDER CASE NO:
NOV AST AR MORTGAGE FUNDJNG
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TRUST. SERIES 2007-1. --"....•
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Defendants. t£.
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~rOlNTSTIPULATION OF DISMISSAL Wl'IH PREJUDICE


wrrn EACH PARTY TO BEAR ITS OWN FEES AND COSTS

Plaintiff. Deutsche Bank National Trust Company. as Trustee Under Novastar Mortgage

funding Trust, Series 2007-1 (,-Deutsche Bank") and Defendants Maria Lilian Hernandez and Ivan

Saenz pursuant to fla. R. Civ. P. 1.420(aXl )(B). file this Stipulation of Dismissal and agree that this

action is dismissed with prejudice, and that each party is to bear its own attorneys' fees and costs.

The Court reserves jurisdiction to enforce the terms of that certain settlement agreement entered into

between the parties on August] 8.2010.

Plaintiff Deutsche Bank National Trust Company,


as Trustee Under Novastar Mortgage Funding Trust,
Series 2007~ 1

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athan R. Rosenn, Esq.


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Counsel for PlaintitTU.S. Bank

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IN THE CIRCUIT COURT OF THE


ELEVENTH JUDICIAL CIRCUIT, IN
AND FOR MIAMI-DADE COUNTY,
FLORIDA.

DEUTSCHE BANK NATIONAL TRUST CASE NO. _._._


COMPANY, AS TRUSTEE UNDER ~~
NOVASTAR MORTGAGE FUNDING ~ ..
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TRUST, SERIES 2007-1 ~~~~


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DEFENDANTS' AMENDED ANSWER, AFFIRMATIVE DEFENSES AND

--
COUNTERCLAIM

(hereinafter collectively referred to as "The Homeowners"), by and trough their

undersigned counsel, hereby file this Amended Answer Affirmative Defenses and

Counterclaim against Plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY,

AS TRUSTEE UNDER NOVAS TAR MORTGAGE FUNDING TRUST, SERIES 2007-

1, (hereinafter "DEUTSCHE BANK"), and state as follows:

£\MENDED ANSWER - GENERAL ALLEGATIONS

1. The Homeowners are without knowledge as to the allegations of this

paragraph and so the allegations are expressly, directly and explicitly denied, and strict

proof is demanded thereon.

2. The Homeowners admit signing a mortgage and note similar to those

attached to the Complaint. The Homeowners are without knowledge as to the remaining

The Arcia Law Firm, PL, 3350 S W 148·Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
www.Ardal.awhirm.com
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allegations, and so the allegations are expressly, directly and explicitly denied, and strict

proof is demanded thereon.

3. The Homeowners are without knowledge of the material allegations of this

paragraph, therefore the allegations are expressly, directly and explicitly denied and strict

proof is demanded thereon.

4. The Homeowners are without knowledge of the material allegations of this

paragraph, therefore the allegations are expressly, directly and explicitly denied and strict

proof is demanded thereon.

5. The Homeowners are without knowledge of the material allegations of this

paragraph, therefore the allegations are expressly, directly and explicitly denied and strict

proof is demanded thereon.


q.

6. The Homeowners expressly, directly and explicitly deny the material

allegations of this paragraph and strict proof is demanded thereon.

7. The Homeowners admit signing a mortgage and note similar to those

attached to the Complaint. The Homeowners are without knowledge, however, as to the

recording information, and so the allegations are expressly, directly and explicitly denied,

and strict proof is demanded thereon. The Homeowners are without knowledge as to the

remaining allegations, and so the allegations are expressly, directly and explicitly denied,

and strict proof is demanded thereon.

8. The Homeowners are without knowledge of the material allegations of this

paragraph, therefore the allegations are expressly, directly and explicitly denied and strict

proof is demanded thereon.

2
The Arcia Law Firm, PL, 3350 S. W J 48- Avenue, Suite J J 0, Miramar, FL 33027
Telephone 800-710·7102 - facsimile 954433·8389
www.Ardai.awilrm.com
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9. The Homeowners admit that they own the property in question.

10. The Homeowners expressly, directly and explicitly deny the material

allegations of this paragraph and strict proof is demanded thereon.

11. The Homeowners expressly, directly and explicitly deny the material

allegations of this paragraph and strict proof is demanded thereon, in that there has been a

failure to comply with both ~ 22 of the Mortgage attached to the Mortgage Foreclosure

Complaint, and/or 12 C.F.R. §203.S00- §203.681.20.

12. The Homeowners expressly, directly and explicitly deny the material

allegations of this paragraph and strict proof is demanded thereon.

13. The Homeowners are without knowledge of the material allegations of this

paragraph, therefore the allegations are expressly, directly and explicitly denied and strict

proof is demanded thereon.

14. The Homeowners are without knowledge of the material allegations of this

paragraph, therefore the allegations are expressly, directly and explicitly denied and strict

proof is demanded thereon.

Any allegations of the Complaint not expressly admitted herein are expressly,

directly and explicitly denied and strict proof is demanded thereon.

DEMAND FOR JURY TRIAL

The Homeowners hereby demand trial by jury as to all issues so triable thereon.

WHERElFORE, The Homeowners pray that this Honorable Court dismiss this

action in toto, ordering that Plaintiff take nothing by this action.

3
The Arcia Law Firm, PL, 3350 S. W J48" Avenue, Suite J J0, Miramar, FL 33021
Telephone 800-ll0-JJ02 - Facsimile 954-433-8389
wwwArciaLawFirm.com
"--J "--J

!~FFIRMATIVE DEFENSES TO THE COMPLAINT

1. The mortgage and note in the above-styled matter are void ab initio for

lack of compliance with the Truth in Lending Act ("TILA"), 15 US.c. §1601, et seq.,

and Regulation Z, 12 C.F.R. §226.1, et seq. ("Regulation Z" or "Reg Z") Specifically,

Plaintiff failed to deliver to the Homeowners all material disclosures required by TILA

and Regulation Z.

2. The mortgage and note in the above-styled matter are void for lack of

compliance with the Truth in Lending Act, 15 US.C. §1601, et seq., and the Home

Ownership Protection Act (HOEPA), 12 C.F.R. §226.32.

3. This court lacks subject matter jurisdiction over this action inasmuch as

Plaintiff has not, and cannot establish it is the real party in interest to enforce the

mortgage and/or note that is the subject of the above-styled action.

4. The Plaintiff has failed to state a claim upon which relief may be granted

inasmuch as Plaintiff has not, and cannot establish it is the real party in interest to enforce

the mortgage and/or note that is the subject of the above-styled action.

5. The Plaintiff lacks standing to pursue its claims against the Homeowners

inasmuch, and/or lacked standing at the time this action was filed as the Plaintiff has not,

and cannot establish it is the real party in interest to enforce the mortgage and/or note that

is the subject of the above-styled action.

6. The Plaintiff has failed to plead the performance or meet a condition

precedent to institution of this action because the "Lender" failed to mail a notice of

4
T111= Arcia Law Firm, PL, 33505. W. 148" Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
www.ArciaLawFirm.com
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acceleration to the Homeowners and failed to wait 30 days after mailing the notice of

acceleration before filing this action, as required by ~22 of the mortgage.

7. Any and all claims against Homeowners are offset by the damages owed

to Homeowners by Plaintiff in connection with the counterclaim set forth herein.

8. Plaintiff and/or its assignor failed to comply with the conditions and terms

of the mortgage and note and/or 12 u.s.c. §260l, et seq ("RESPA"), with respect to the

proper computation, collection and application of The Homeowners' mortgage payments

and the escrow accounts and payments as required under the note and the mortgage. As a

result of the improperly collecting and posting of payments to The Homeowners' account

and improper payments of moneys that Plaintiff and/or its assignor paid out on The

Homeowners' account, Plaintiff and/or its assignor is estopped or has waived its right to

claim a default, and or is otherwise before the Court with unclean hands and cannot

foreclose.

9. The mortgage Plaintiff seeks to foreclose is illegal under Florida and/or

Federal law, due to the improper demand for payments from The Homeowners. Thus,

Plaintiff is estopped and/or has waived its right to foreclose, and is otherwise before this

Court with unclean hands.

10. The Complaint should be dismissed for failure to state a cause of action

upon which relief may be granted since Plaintiff never acquired the note and or mortgage

and or never had possession of the note and or mortgage, and or did not have such

possession when they were lost, and or never properly acquired the note and or mortgage

under the Uniform Commercial Code, nor the right to reestablish and enforce the note

5
The Areta Law Firm, PL, 3350 S. W 14S" II venue, Suite 110, Miramar, FL 33021
Telephone 800-710-1102 - Facsimile 954-433-8389
www.Arcial.awhrm.com
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and or mortgage that it seeks to reestablish and or enforce and or foreclose under Florida

and/or Federal law.

11. Plaintiff has failed to join indispensable parties; to wit, the party who

owns the mortgage and note and/or did so when the mortgage and note were lost.

12. Plaintiff cannot maintain this action inasmuch as Plaintiff and/or its

assignor has failed to comply with the post-closing loan disclosure requirements of 12

C.F.R. §226.9, et seq.

13. Plaintiff cannot maintain this action since it breached the contract with the

Homeowners when it forced placed homeowners' insurance upon the Homeowners in an

amount in excess of that required under the mortgage, increasing the Homeowners'

monthly payments substantially, actually and proximately causing Homeowners to no

longer meet their obligations under the mortgage contract, and excusing them from

continued performance thereunder.

14. The mortgage upon which this action is premised is void and

unenforceable. The mortgagee identified in the attached mortgage, Mortgage Electronic

Registrations Systems Inc., as nominee (hereinafter "MERS"), was not licensed to

conduct business in Florida at the time the loan was made as a federally chartered bank,

state-chartered commercial bank, credit union, savings association, nondeposit trust

company, international banking office, consumer finance company, mortgage broker

businesses, mortgage broker individual, retail installment seller, or sales finance

company.

6
The Areta Law Firm, PL., 3350 S. W. 148" Avenue, Suite tto. Miramar, FL 33027
Telephone 800·770·7102 - Facsimile 954-433·8389
www.ArciaLawFirm.com
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15. The mortgage upon which this action is premised is further void and

unenforceable, because MERS failed to register with the Florida Division of Financial

Institutions or the Florida Division of Finance.

16. The mortgage is void for common law fraud in the inducement inasmuch

as Plaintiff and/or its assignor misrepresented the actual amount of finance charges and

interest rate that the Homeowners would pay under the mortgage and note that is the

subject of this action. The Homeowners would not have entered into the mortgage and

note had they been provided truthful and accurate disclosures by the lender in the

transaction.

COUNTERCLAIM

Defendants/Counterclaimants, the Homeowners, by and through their undersigned

counsel, hereby sue Plaintiff/Counter-defendant, DEUTSCHE BANK, and state as

follows:

1. This is an action for damages exceeding $15,000.00 exclusive of interest

and costs.

2. Counterclaimant, the Homeowners, are Florida residents with their

principal place of residence situated in Miami-Dade County, Florida.

3. Counter-defendant, DEUTSCHE BANK is a foreign corporation believed

to be authorized to do business, and currently doing business in the State of Florida.

4. Venue is proper in this jurisdiction because the events and transactions at

issue herein took place within Miami-Dade County, Florida, and the parties to this

dispute are all situated within Miami-Dade County, Florida.

7
The Areta Law Film, PL., 3350 S. W 748'" Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
wwwArciaLawFirm.com
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5. The Homeowners were first introduced to MERS and N ovastar Mortgage

Inc. (hereinafter "NMI") as a creditor within the meaning ofthe Federal Truth in Lending

Act ("TILA") 15 U.S.C. §1601 et. seq., when the Homeowners entered into the loan

transaction at issue herein on or about November 30, 2006.

6. On November 30, 2006, MERS, as nominee and NMI, as a TILA creditor,

extended to The Homeowners consumer credit secured by The Homeowners' primary

residence, the same property that is the subject of this foreclosure, and governed by TILA

and Regulation Z.

7. The Homeowners used the funds from the transaction extended by

MERSINMI to obtain home secured credit primarily for personal family or household

use.

8. At said closing, the creditor MERSINMI failed to provide to The

Homeowners a Truth in Lending Disclosure Statement.

9. In the alternative, the Truth in Lending Disclosure Statement provided

failed to comply with the disclosure requirements ofthe Federal Truth in Lending Act.

10. DEUTSCHE BANK claims to hold the Mortgage and Mortgage Note by

voluntary assignment. Under said voluntary assignment, DEUTSCHE BANK is

reasonably believed to have received an assignment of all claims as well as all liabilities

under the subject mortgage transaction.

11. The Truth in Lending disclosure errors alleged herein are apparent on the

face of the disclosure statement, and or the face of the documents assigned and or can

otherwise be determined to be inaccurate or incomplete by a comparison among the

8
The Arcia Law Firm, P.L., 3350 S. W. 14S" Avenue, Suite 170, Miramar, FL 33027
Telephone 800-770-7702 - Facsimile 954-433-8389
www.ArciaLawFirm.com
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disclosure statement, any itemization of the amount financed, the note, or any other

disclosure of disbursement; and or the disclosure statement does not use the terms or

format required to be used, within the meaning of 15 U.S.C. § 1641. Accordingly, when

DEUTSCHE BANK took a voluntary assignment ofthe subject mortgage and note, it

knew or should have known about the existence of the violations of state and federal set

forth herein.

12. In addition, and or the alternative, DEUTSCHE BANK committed the

TILA errors alleged and is therefore primary liable to The Homeowners under TILA.

13. All conditions precedent to bringing the instant action have been

discharged, waived and/or satisfied.

14. In order to bring this action, Counterclaimants have retained the services

of the undersigned law firm, and has agreed to pay said law firm a reasonable fee, for I
which Counter-defendant should reimburse Counterclaimants in accordance with the

terms of the mortgage annexed as an exhibit to the original Complaint and incorporated

by reference herein, as well as, any other applicable federal or state law or statute

authorizing an award of attorneys' fees to the prevailing party.

CAUSES OF ACTION

COUNT I-FRAUD IN THE INDUCEMENT


15. Counterclaimant realleges and incorporates by reference the allegations of

paragraphs 1 through 14 above, as though fully set forth herein.

16. This is an action for damages against Counter-defendant, DEUTSCHE

BANK for Fraud in the Inducement.

9
The Arcia Law Firm, PL, 3350 S. W. 148' Avenue, Suite 110, Miramar, FL 33021
Telephone 800·110·7102 - Facsimile 954-433·8389
www.ArdaLawFirm.com
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17. On or about the closing date of the subject transaction, and in order to

intentionally induce the Homeowners to enter into the transaction, MERSINMI, by and

through its authorized representatives at the closing, provided the Homeowners with false

information regarding the finance charges and interest rate that Homeowners would be

required to pay under the Mortgage and Mortgage Note.

18. These representations were false, and/or MERSINMI should have known

they were false when they were made.

19. MERSINMI knew these representations were material to the Homeowners

in making a determination whether or not to sign the Mortgage in question. Indeed,

proper disclosure of finance charges and applicable interest rates are federally mandated

under TILA.

20. The Homeowners justifiably relied on the foregoing misrepresentations

by, inter alia, (1) entering into the subject Mortgage, (2) paying significant closing costs

and other expenses at the closing on this transaction, (3) faithfully paying their interest

and principal on the Mortgage in question for several years, and (4) foregoing other

means of financing their primary residence.

21. As a direct and proximate result of the foregoing misrepresentations of

material fact, the Homeowners have been damaged.

WHEREFORE, Counterclaimants demand a judgment against Counter-defendant,

DEUTSCHE BANK, for damages, interest, attorneys' fees, costs, and such other relief as

may deemed appropriate by this Court.

10
The Arda Law Firm, PL, 3350 S. W 148' Avenue, Suite 110, Miramar, fL 33021
Telephone 800-110-7702 - Facsimile 954-433-8389
www.Arcial.awrirm.com
--..1...._

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I /(exC IN THE CIRCUIT COURT OF THE ELEVENTH


JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE CO\JNTY, fLORlDA

DEUTSCHE BANK NATIONAL TRUST


COMPANY. AS TRUSTEE UNDER _ CASE NO: 08-30628-CA-22
NOVAST AR MORTGAGE FUNDJNG
TRUST. SERIES 2007-1,
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Plaintiff, '-I:]

vs. Q:)

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MARIA LILIAN HERNANDEZ. ET. AL. - -.
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Defendants. tf\
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JOINT STlPUl.ATION OF DISMISSAL WIm PREJUDICE


WIm EACH PARTY TO BEAR ITS OWN FEES AND COSTS

Plaintiff, Deutsche Bank National Trust Company. as Trustee Under Novastar Mortgage

Funding Trust, Series 2007-1 (Deutsche Bank") and Defendants Maria Lilian Hernandez and Ivan

Saenz pursuant to Fla. R. Civ. P. 1.420(a)(1 )(B).liIe this Stipulation of Dismissal and agree that this

action is dismissed with prejudice, and that each party is to bear its own attorneys' fees and costs.

The Court reserves jurisdiction to enforce the terms of ihat certain settlement agreement entered into

between the parties on August 18. 20 10.

Plaintiff Deutsche Bank National Trust Company.

Series 2007-1
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as Trustee Under Novastar Mortgage Funding Trust.

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Jo athan R. Rosenn, Esq.
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Counsel for PlaintitTU.S. Bank

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1 /(exC IN THE CIRCUIT COURT OF THE ELEVENTH


JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE CO\JNTY, FLORlDA

DEUTSCHE BANK NATIONAL TRUST


COMPANY, AS TRUSTEE UNDER . CASE NO: 08-30628-CA-22
NOVAST AR MORTGAGE FUNDING

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TRUST, SERIES 2007-1, ~
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Plaintiff, '-6
vs. Q~

MARIA LILIAN HERNANDEZ. E1'. AL. .--:-}


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Defendants. s:
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JOINT STIPULATION OF DISMISSAL WITII PREJUDICE


WITII EACH PARTY TO BEAR ITS OWN FEES AND COSTS

Plaintiff, Deutsche Bank National Trust Company. as Trustee Under Novastar Mortgage

Funding Trust Series 2007-1 ('"Deutsche Bank") and Defendants Maria Lilian Hernandez and Ivan

Saenz pursuant to Fla. R. Civ. P_ 1.420(a)(1 )(B).liIe this Stipulation of Dismissal and agree that this

action is dismissed with prejudice, and that each party is to bear its own attorneys' fees and costs.

The Court reserves jurisdiction to enforce the terms of that certain settlement agreement entered into

between the parties on August] 8.2010.

Plaintiff Deutsche Bank National Trust Company.

Series 2007-]
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as Trustee Under Novastar Mortgage Funding Trust.

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Jo athan R. Rosenn, Esq.
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Counsel for PlaintitTU.S. Bank

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COUNT 11- VIOLATION OF FEDERAL TRUTH IN LENDING ACT

22. Counterclaimant realleges and incorporates by reference the allegations of

paragraphs 1 through 14 above, as though fully set forth herein.

23. This is an action for damages against Counter-defendant, DEUTSCHE

BANK for violations of the Federal Truth in Lending Act.

24. At all times material hereto, the November 30, 2006 transaction was

governed by the Federal Truth in Lending Act 15 U.S.c. Sec. 1601 et. seq. and subject to

damage claims under §1640.

25. MERS, and or NMI engaged in the business of extending consumer credit

in Miami-Dade County, Florida.

26. At all times material hereto, MERS, and or NMI, in the ordinary course of

business regularly extended or offered to extend consumer credit for which a finance

charge is or may be imposed by a written agreement or payable in more than four [4]
I
installments.

27. On or about November 30, 2006, the Homeowners entered into a

consumer credit transaction with MERS, and or NMI in which the extended consumer

credit transaction was subject to a finance charge and was initially payable to MERS, and

orNMI.

28. DEUTSCHE BANK attached to the Complaint in the above-styled action

a copy of the promissory note similar to the note evidencing the transaction, which the

Homeowners incorporate herein by reference.

11
The Arcia Law Firm, P.L., 3350 S.W 148' Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
www.ArciaLawFirm.com
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29. As part of the consumer credit transaction, MERS, and or NMI retained a

security interest in The Homeowners' primary residence as described in DEUTSCHE

BANK's complaint. The security interest is similar to the mortgage attached to

DEUTSCHE BANK's Complaint.

30. DEUTSCHE BANK attached a copy of a mortgage similar to the

mortgage referred to above, to its Complaint, which is incorporated herein by reference.

31. The failure to properly disclose prior to consummation of the transaction

is a violation of TILA, which violation occurred here.

32. In the course of the consumer credit transaction, NMI and or MERS failed

to deliver all material disclosures required by TILA and Regulation Z including the

following:

a. Failing to clearly and accurately disclose the amount financed using that
term in violation in Reg. Z 226.18(b) and §1638(a)(2)(A).

b. Failing to clearly and accurately disclose the finance charge using that
term in violation of Reg. Z 226.4,226.18 and §1638(a)(3).

c. Failing to clearly and accurately disclose the annual percentage rate


[including any variable feature disclosure] using that term in violation of Reg. Z
226.18(e) and § 1638(a)(4).

d. Failing to properly disclose the number, amounts, and timing of payments


scheduled to repay the obligation, in violation of Reg. Z 226.18(g) and
§1638(a)(6).

e. Failing to clearly and accurately disclose the total of payments using that
term in violation of Reg. Z 226. 18(h) and §1638(a)(5); and/or

f. Failing to properly and/or clearly disclose any variable feature leads to a


new transaction, a new limitation and a new claim for damages and rescission at
each rate change and/or each addition of each undisclosed variable feature.

12
The Arcia Law Finn, PL, 33505. W 148-lIvenut', Suite 110, Miramar, fL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
www.llrdaLawFirm.com
"--'" <:»

33. In addition, and or in the alternative, the Truth in Lending Disclosures

violated TILA as follows:

a. NMI and or MERS violated the variable rate disclosures of Reg Z


226.19(a) and (b), which are and part ofthe annual percentage rate disclosures
under Reg Z 226.18(1) and Reg Z 226. 19(b), by failing to timely provide the early
variable disclosures to The Homeowners, as required by Reg Z 226.19(a) and Reg
Z 226.23(b);

b. NMI and or MERS disclosure statement, violated Reg Z 226. 18(f),


TILA's variable disclosure obligation, and Reg. Z 226.1 8(g) and 15 U.S.C.
§1638(a)(6) TILA's "payment schedule" disclosure.

c. NMI and or MERS violated Reg Z 226. 19(a) and (b) by failing to timely
provide any of the early variable disclosures required by Reg Z 226. 19(a);

34. As a direct and proximate result of the aforementioned violations ofTILA

and Reg. Z pursuant to §1640(a) & (e), and given that DEUTSCHE BANK (as a

voluntary assignee) knew or should have know of the foregoing violations of law,

DEUTSCHE BANK is liable to The Homeowners for the following:

a. Twice the finance charge in connection with this transaction but not less
than $200.00 for the initial errors, and for any inaccurate variable disclosure at each rate
change; and/or

b. Actual damages in an amount to be determined at trial for the initial errors,


any of the variable errors at each rate change, and any improper response to rescission;
and reasonable costs and attorneys' fees.

35. The Homeowners hereby demand trial by jury as to all issues so triable

thereof.

WHEREFORE, The Homeowners pray this Court take jurisdiction of this case;

award The Homeowners twice the finance charge in connection with the transaction, but

not less than $200 nor more than $2,000, as provided under 15 U.S.C. 1640(a) for the

initial errors for each Reg. Z 226.19 error, each Reg. Z 226.20(a) error, and each Reg. Z

13
The Arcia Law Firm, PL, 3350 S. W. 148" Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
www.ArciaLawFirm.com
'--"
226.20(c) error, and at each rate change, award actual damages in an amount to be

established at trial, for the initial disclosure errors, for the variable errors, and at each rate

change, and at each obligation to disclose under Reg. Z 226.19, Reg. Z 226.20(a) and

Reg. Z 226.20(c), and prejudgment interest on all damages, and award costs and

attorney's fees as provided by 15 U.S.C. §1640(a)&(e), § 1641, F.S. §S7.10S and such

other relief as this Court deems just and proper.

COUNT III
VIOLATION OF THE REAL ESTATE SETTLEMENT
PROCEDURES ACT (RESP A)

36. Counterclaimant realleges and incorporates by reference the allegations of

paragraphs 1 through 14 above, as though fully set forth herein.

37. This is an action for damages against Counter-defendant, DEUTSCHE

BANK for violations of the Federal Real Estate Settlement Procedures Act.

38. DEUTSCHE BANK and or MERS and/or its assignor failed to comply

with the conditions and terms of the mortgage and note and/or 12 U.S.C. §260l, et seq

(RESP A), with respect to the proper computation, collection and application of The

Homeowners' mortgage payments, and/or the escrow accounts, and/or payments as

required under the note and the mortgage.

39. Alternately, DEUTSCHE BANK and or MERS and/or its assignor has

collected payments, but failed to properly credit The Homeowners' account, and/or

collected mortgage payments and/or escrow payments and did not properly credit or post

the payments to The Homeowners' account in violation of the terms of the noteand the

mortgage.

14
The Arcia Law Firm, P.L., 3350 S. W. 148·Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7702 - Facsimile 954-433-8389
www.Arcial.awiirm.com
\.J \..J

40. The Homeowners made payments to DEUTSCHE BANK and or MERS

and/or the assignor or servicer during the term of the loan that DEUTSCHE BANK, and

or MERS andlor its assignor or servicer did not properly post to The Homeowners'

account as required by the terms of the note and the mortgage.

41. Therefore, The Homeowners are entitled to an accounting of all moneys

they paid during the term of the loan and all moneys collected by DEUTSCHE BANK

and or MERS or the assignor or servicer under the mortgage and note and all money

DEUTSCHE BANK and or MERS and or their assignor paid out on the Homeowners'

account because of the non-compliance with the note and the mortgage.

42. As a result of improperly collecting and posting payments to The

Homeowners' account and improper payments of moneys that DEUTSCHE BANK and

or MERS and or its assignor paid out on The Homeowners' account, DEUTSCHE BANK 1
and or MERS or its assignor is estopped or has waived its right to claim a default, and or

is otherwise before the Court with unclean hands and cannot foreclose.

WHEREFORE, The Homeowners pray that this Honorable Court take jurisdiction

of this case; order an accounting under the mortgage and note of all money collected and

paid out by DEUTSCHE BANK and or MERS and its assignors, restore and/or return

any and all overpayments made by The Homeowners and/or improperly paid out by

DEUTSCHE BANK and/or MERS and their assignors, dismiss DEUTSCHE BANK's

complaint with prejudice, decline to reestablish the note, and/or decline to enforce the

note as pled, and award costs and reasonable attorney fees as provided by F.S. §57.105,

the mortgage and note, and such other relief as this Court deems just and proper.

15
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Telephone 800-770-7102 - Facsimile 954-433-8389
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\J \...J

COUNT IV - BREACH OF CONTRACT

43. Counterclaimant realleges and incorporates by reference the allegations of

paragraphs 1 through 14 above, as though fully set forth herein.

44. The Homeowners and MERSINMI entered into a mortgage contract on or

about November 30, 2006, a copy of which is attached to the original Complaint and

incorporated herein by reference. Counter-defendant claims to have obtained a voluntary

assignment of said mortgage contract from MERSINMI, including any liability

associated with said mortgage contract.

45. The Homeowners have complied with all terms of the agreement, or are

otherwise excused from compliance due to Counter-defendant's prior breach of the

agreement.

46. Counter-defendant has breached the mortgage contract between the parties

by, inter alia:

a. Failing to properly and timely demand payments from The Homeowners

prior to initiating the above-styled foreclosure proceedings;

b. Failing to properly accelerate the mortgage and note by failing to give the

proper notice prior to bringing this action to foreclose as required by paragraph 22 of the

mortgage;

c. Improperly collecting, paying and allocating fees and advances received

from the Homeowners under the mortgage and note; and/or in the alternative,

d. Force placing hazard, wind, fire andlor flood insurance upon the

Homeowners and requiring that Homeowners pay the premium for said insurance.

16
The Areta Law Firm, PL, 33505. W 148" Avenue, Suite 110, Miramar, FL 33027
Telephone 800-ll0-7102 - Facsimile 954-433-8389
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'--"" <:»
47. As a direct and proximate cause of the aforementioned breaches of the

mortgage contract, the Homeowners suffered damages, were no longer able to make the

payments under the mortgage contract, causing the above-styled foreclosure action to be

commenced, and the Homeowners' credit rating to be significantly damaged.

WHEREFORE, The Homeowners pray that this Honorable Court take jurisdiction

of this case; order an accounting under the mortgage and note of all money collected and

paid out by DEUTSCHE BANK and/or MERS and its assignors, restore and/or return

any and all overpayments made by The Homeowners and or improperly paid out by

DEUTSCHE BANK and/or MERS and their assignors, dismiss Plaintiffs complaint with

prejudice, decline to reestablish the note, and or decline to enforce the note as pled, and

award costs and reasonable attorney fees as provided by F.S. § 57.105, the mortgage and

note, and such other relief as this Court deems just and proper.
1
COUNT V - UNJUST ENRICHMENT

48. Counterclaimant realleges and incorporates by reference the allegations of

paragraphs 1 through 14 above, as though fully set forth herein.

49. Counter-defendant had an implied obligation and an implied contract with

the Homeowners to ensure that they understood all fees which would be paid to the

Counter-defendant in order for the Homeowners to obtain credit and to not charge any

fees which were unrelated to the settlement of the loan and without full disclosure to the

Homeowners.

17
The Arcia Law Firm, P.L., 3350 S. W 148' Avenue, Suite 110, Miramar, FL 33027
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<::

50. Counter-defendants had full knowledge that an adjustable rate predatory

mortgage with an increase in the interest rate due to the Yield Spread Premium ("YSP")

was in the Homeowners' best interests.

51. Counter-defendants cannot in good conscience and equity, retain the

benefits from their actions of charging a higher interest rate, fees, rebates, kickbacks,

profits and gains and YSP fee unrelated to the settlement services provided at closing.

52. Counter-defendants have been unjustly enriched at the expense of the

Homeowners, and maintenance of said unjust enrichment would be contrary to the rules

and principles of equity.

WHEREFORE, The Homeowners pray that this Honorable Court take jurisdiction

of this case; order an accounting under the mortgage and note of all money collected and

paid out by DEUTSCHE BANK and/or MERS and its assignors, restore andlor return

any and all overpayments made by The Homeowners and or improperly paid out by

DEUTSCHE BANK andlor MERS and their assignors, dismiss Plaintiffs complaint with

prejudice, decline to reestablish the note, and or decline to enforce the note as pled, and

award costs and reasonable attorney fees as provided by F.S. § 57.105, the mortgage and

note, and such other relief as this Court deems just and proper.

COUNT VI - BREACH OF FIDUCIARY DUTY

53. Counterclaimant realleges and incorporates by reference the allegations of

paragraphs 1 through 14 above, as though fully set forth herein.

54. Counter-defendant, MERSINMI and their assignors, by their actions in

contracting to provide mortgage loan services and a loan program to the Homeowners,

18
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,
~

which was not only to be best suited to the Homeowners given their income and

expenses, but by which Homeowners would also be able to satisfy their obligations

without risk of losing their home, were "fiduciaries" in which Homeowners reposed trust

and confidence. This is especially true given that Homeowners were not and are not

investment bankers, securities dealers, mortgage lenders, mortgage brokers, or mortgage

lenders.

55. Counter-defendant, either directly or through its assignors, breached its

fiduciary duties to the Homeowners by fraudulently inducing the Homeowners to enter

into a mortgage transaction which was contrary to the Homeowners' stated intentions;

contrary to the Homeowners' interests; and contrary to the Homeowners' preservation of

their home.

56. As a direct and proximate result of the Counter-defendant's breaches of its 1


fiduciary duties, the Homeowners have suffered damages.

57. Under the totality of the circumstances, the counter-defendant's actions,

either directly or through its assignors, were willful, wanton, intentional, and with a

callous and reckless disregard for the rights of the Homeowners justifying an award of

not only actual compensatory but also exemplary punitive damages to serve as a deterrent

not only as to future conduct of the named counter-defendant herein, but also to other

persons or entities with similar inclinations.

WHEREFORE, Counterclaimants, the Homeowners, demand a judgment against

Counter-defendant, DEUTSCHE BANK, for damages, interest, attorneys' fees, costs, and

such other relief as may deemed appropriate by this Court.

19
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Telephone 800-770-7102 - Facsimile 954433-8389
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COUNT VII - VIOLATION OF THE FLORIDA FAIR LENDING ACT

58. Counterclaimant realleges and incorporates by reference the allegations of

paragraphs 1 through 14 above, as though fully set forth herein.

59. This is an action under the Florida Fair Lending Act, F.S. §494.00796

(hereinafter the "FFLA").

60. The Homeowners are "borrowers" and counter-defendant is a "creditor" as

defined by the FFLA.

61. Counter-defendant, either directly or through the voluntary assignment

taken from MERS, NMI and/or any other assignors, violated the FFLA by, inter alia:

a. Charging prepayment penalties for longer than three (3) years,


and/or in the alternative;

b. Charging increased interest on loans going into default, and/or in


the alternative;

c. Requiring a balloon payment on a loan that matures in less than ten


(10) years, and/or in the alternative;

d. Extending credit regardless of the Homeowners' ability to pay,


and/or in the alternative;

e. Making direct payments to home improvement contractors, and/or


in the alternative;

f. Calling the subject loan due even though the borrower has
complied with the terms of the loan, and/or in the alternative;

g. Refinancing a loan during the first 18 months, without any benefit


to the Homeowners, and/or in the alternative;

h. Offering to originate a loan at the Homeowners' home without a


pre-arranged appointment, and/or in the alternative;

1. Charging late fees that exceed five percent (5%) of the payment,
and/or in the alternative;

20
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I

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J. Failing to make all statutorily required disclosures at least three (3)


days prior to the closing of the subject transaction.

62. As a direct and proximate result of the foregoing violation(s) of the FFLA,

the Homeowners have suffered and continue to suffer damages.

WHEREFORE, Counterclaimant, The Homeowners respectfully request that this

Honorable Court enter a judgment in their favor and against counter-defendant,

DEUTSCHE BANK, for actual damages, including forfeiture of all interest paid or

contracted to be paid by Homeowners, or received by counter-defendant in connection

with the subject loan transaction, attorneys' fees, costs, and such other relief as may

deemed appropriate by this Court.

COUNT VIII
VIOLATIONS OF THE HOME OWNERSHIP
EQUITY PROTECTION ACT (HOEPA)
,
63. Counterclaimant realleges and incorporates by reference the allegations of

paragraphs 1 through 14 above, as though fully set forth herein.

64. TILA's §1639(a)(I), Reg Z 226.31 & Reg Z 226.32 applied to the

transaction at issue in the above-styled matter because the loan meets the requirements

for a 15 U.S.C. §1639 and Reg Z 226.32 transaction according to the points and fees test

and or the T-Bill test of Reg Z. 226.32.

65. In addition thereto, or in the alternative, TILA treats the collected but

improperly disclosed finance charges from the subject transaction as part of the finance

charge, which independently trigger the points and fees test and or T-Bill Test of Reg Z

226.32.

21
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"--" <:»

66. DEUTSCHE BANK, either directly or by and through its assignors,

violated §1639(a)(l) in connection with the subject transaction by failing to and/ or

failing to timely provide the following disclosures in conspicuous type size:

a. You are not required to complete this agreement merely because you
have received these disclosures or have signed a loan application.

b. If you obtain this loan, the lender will have a mortgage on your home.
You could lose your home, and any money you have put into it, if you
do not meet your obligations under the loan.

67. DEUTSCHE BANK, either directly or by and through its assignors

violated §1639(a)(2) by failing to provide (A) in the case of a credit transaction with a

fixed rate of interest, the annual percentage rate and the amount of the regular monthly

payment; or (B) in the case of any other credit transaction, the annual percentage rate of

the loan, the amount of the regular monthly payment, a statement that the interest rate and
1
monthly payment may increase, and the amount of the maximum monthly payment,

based on the maximum interest rate allowed pursuant to section 3606 of Title 12.

68. DEUTSCHE BANK, either directly or by and through the voluntary

assignment taken from MERS, NMI and any other assignors, violated §1639(b) by failing

to give the required disclosure not less than 3 business days prior to consummation of the

transaction.

69. DEUTSCHE BANK, either directly or by and through the voluntary

assignment taken from MERS, NMI and any other assignors, violated §1639(c) by taking

a mortgage in which the consumer must pay a prepayment penalty for paying all or part

of the principal before the date on which the principal is due and by using a method of

22
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computing a refund of unearned scheduled interest less favorable to the consumer than

the actuarial method (as that term is defined in section 1615(d) of the TILA).

70. DEUTSCHE BANK, either directly or by and through the voluntary

assignment taken from MERS, NMI and any other assignors, violated §1639(e) by taking

a mortgage whose terms include a term under which the outstanding principal balance

could increase at any time over the course of the loan because regular periodic payments

do not cover the full amount of interest due.

71. DEUTSCHE BANK, either directly or by and through the voluntary

assignment taken from MERS, NMI and any other assignors, violated §1639(f) by

extending credit without regard to payment ability of the consumer.

72. DEUTSCHE BANK, either directly or by and through the voluntary

assignment taken from MERS, NMI and any other assignors violated §1639(e) by taking

a mortgage whose terms include a payment to a contractor under a home improvement

contract from amounts extended as credit.

73. As the consequence of DEUTSCHE BANK's violations, TILA deems the

violations a failure to deliver the material disclosures for the purpose of §1635 of TILA.

74. The Homeowners are entitled to the special rescission and damage rules

under 15 US.c. §1639, §1635(i)[1995], §1640(a)(4), Reg Z 226.23(i)[1996], Reg Z

226.31 & Reg Z 226.32.

DEMAND FOR JURY TRIAL

The Homeowners hereby demand trial by jury as to all issues so triable thereof.

23
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Telephone 800·710·7102 - Facsimile 954-433·8389
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<:>

WHEREFORE, The Homeowners pray this Court take jurisdiction of this case;

rescind the transaction of November 30, 2006; order that DEUTSCHE BANK take all

action necessary to terminate any security interest in the Homeowners' property created

under the transaction, that the Court declare all such security interests void, including but

not limited to the mortgage related to the transaction, order the return to the Homeowners

of any money or property given by the Homeowners to anyone, including DEUTSCHE

BANK, and its assignors, in connection with the transaction; enjoin DEUTSCHE BANK

during the pendency of this action and permanently thereafter from instituting

prosecuting or maintaining foreclosure proceedings on the Homeowners' property, or

from recording any deeds or mortgages regarding the property or from otherwise taking

any steps to defraud the Homeowners of ownership of that property; award the

Homeowners twice the finance charge in connection with this transaction, but not less

than $200 nor more than $2,000, as provided under 15 U.S.C. 1640(a) & (e); award the

Homeowners twice the finance charge in connection with this transaction, but not less

than $200 nor more than $2,000, as provided under 15 U.S.C. 1640(a) for the initial

errors for each Reg Z 226.19 error, each Reg Z 226.20(a) error, and each Reg Z 226.20(c)

error, and at each rate change, order that the right to retain proceeds vests in the

Homeowners; award actual damages in an amount to be established at trial, for the initial

disclosure errors, for refusal to rescind, and at each rate change and each obligation to

disclose under Reg Z 226.19, Reg Z 226.20(a) and Reg Z 226.20(c), and prejudgment

interest on all damages, including the rescission amount, the special rescission and

damages under 15 U.S.C. §1639, §1635(i)[1995], Reg Z 226.23(i)[1996], Reg Z 226.31

24
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<:»

& Reg Z 226.32. and award costs and reasonable attorney fees as provided by 15 U.S.C.

1640(a)&(e), F.S. §57.105 and such other relief as this Court deems just and proper.

COUNT IX - VIOLATION OF FAIR CREDIT REPORTING ACT

75. Counterclaimant realleges and incorporates by reference the allegations of

paragraphs 1 through 14 above, as though fully set forth herein.

76. At all times material, counter-defendant qualified as a provider of

information to the Credit Reporting Agencies, including but not limited to Experian,

Equifax, and TransUnion, under the Federal Fair Credit Reporting Act.

77. Counter-defendant, either directly and/or through its assignors,

wrongfully, improperly, and illegally reported negative information as to the

Homeowners to one or more Credit Reporting Agencies, resulting in the Homeowners

having negative information on their credit reports and the lowering of their FICO scores.

78. Pursuant to 15 USC §1681(s)(2)(b), Homeowners are entitled to maintain

a private cause of action against counter-defendant for an award of damages in an amount

to be proven at the time of trial for all violations of the Fair Credit Reporting Act which

caused actual damages to Homeowners, including emotional distress and humiliation.

79. Homeowners are entitled to recover damages from counter-defendant for

negligent non-compliance with the Fair Credit Reporting Act pursuant to 15 USC

§168l(0).

80. Homeowners are also entitled to an award of punitive damages against

counter-defendant for its willful noncompliance with the Fair Credit Reporting Act

pursuant to 15 USC §168l (n)(a)(2) in an amount to be proven at time oftrial.

25
The Areta Law firm, PL, 3350 S. W 748- Avenue, Suite J 10, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
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~

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WHEREFORE, Counterclaimant, The Homeowners respectfully request that this

Honorable Court enter a judgment in their favor and against counter-defendant,

DEUTSCHE BANK, for actual damages, attorneys' fees, costs, and such other relief as

may deemed appropriate by this Court.

COUNT X - USURY

81. Counterclaimant realleges and incorporates by reference the allegations of

paragraphs 1 through 14 above, as though fully set forth herein.

82. Florida Statute §687.02(l) provides in relevant part:

All contracts for the payment of interest upon any loan, advance of money, line of
credit, or forbearance to enforce the collection of any debt, or upon any obligation
whatever, at a higher rate of interest than the equivalent of 18 percent per annum
simple interest are hereby declared usurious.

83. Florida Statute §687.02 also provides that if such loan, advance of money,

line of credit, forbearance to enforce the collection of a debt, or obligation exceeds

$500,000 in amount or value, then no contract to pay interest thereon is usurious unless

the rate of interest exceeds the rate prescribed in §687.071, which requires that the

interest rate exceed 25%.

84. Florida Statute §687.03(l) provides in relevant part:

[1]t shall be usury and unlawful for any person ... to reserve, charge, or take for
any loan, advance of money, line of credit, forbearance to enforce the collection
of any sum of money, or other obligation a rate of interest greater than the
equivalent of 18 percent per annum simple interest, either directly or indirectly,
by way of commission for advances, discounts, or exchange, or by any contract,
contrivance, or device whatever whereby the debtor is required or obligated to
pay a sum of money greater than the actual principal sum received, together with
interest at the rate of the equivalent of 18 percent per annum simple interest.

26
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<::

85. DEUTSCHE BANK is a creditor within the meaning of and or as defined

by Fla. Stat. §687.0304(l)(b).

86. The Homeowners are debtors within the meaning of and or as defined by

Fla. Stat. §687.0304(1)(c).

87. The transaction at issue herein was a written credit agreement within the

meaning of and or as defined by Fla. Stat. §687.0304(1)(a) and Fla. Stat. §687.0304(2).

88. DEUTSCHE BANK, either directly or by and through the voluntary

assignment taken from MERS, NMI and any other assignors, violated F.S. §687.03(1) in

the November 30, 2006 transaction by charging, reserving or collecting in connection

with the above described consumer credit transaction an annual percentage rate in excess

of25%.

89. DEUTSCHE BANK, either directly or by and through the voluntary

assignment taken from MERS, NMI and any other assignors, willfully reserved, charged

and collected from the Homeowners in the November 30, 2006 transaction more than the

18% legal rate on the above described consumer credit transaction, in violation ofF.S.

§687.04, which provides in relevant part:

Any person ... willfully violating the provisions of s. 687.03 shall forfeit the
entire interest so charged, or contracted to be charged or reserved, and only the
actual principal sum of such usurious contract can be enforced in any court in this
state, either at law or in equity; and when said usurious interest is taken or
reserved, or has been paid, then and in that event the person who has taken or
reserved, or has been paid, either directly or indirectly, such usurious interest shall
forfeit to the party from whom such usurious interest has been reserved, taken, or
exacted in any way double the amount of interest so reserved, taken, or exacted.

90. Florida Statute §687.071 (2) provides in relevant part:

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(2) ... any person making an extension of credit to any person, who shall
willfully and knowingly charge, take, or receive interest thereon at a rate
exceeding 25 percent per annum but not in excess of 45 percent per annum, or the
equivalent rate for a longer or shorter period of time, whether directly or
indirectly, or conspires so to do, shall be guilty of a misdemeanor of the second
degree, punishable as provided in s. 775.082 or s. 775.083.

91. Florida Statute §687.071 (3) provides in relevant part:

(3) ... any person making an extension of credit to any person, who shall
willfully and knowingly charge, take, or receive interest thereon at a rate
exceeding 45 percent per annum or the equivalent rate for a longer or shorter
period of time, whether directly or indirectly, or conspires so to do, shall be guilty
of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083,
or s. 775.084.

92. DEUTSCHE BANK, either directly or by and through the voluntary

assignment taken from MERS, NMI and any other assignors, violated F.S. §687.071(2)

by charging, reserving or collecting in connection with the above described consumer

credit transaction an annual percentage rate exceeding 25 percent per annum but not in

excess of 45 percent per annum.

93. In addition to or in the alternative, DEUTSCHE BANK, either directly or

by and through the voluntary assignment taken from MERS, NMI and any other

assignors violated FI. Stat. §687.071(3) by charging, reserving or collecting in connection

with the above described consumer credit transaction an annual percentage rate

exceeding 45 percent per annum.

94. Florida Statute §687.071(7) provides in relevant part: "(7) No extension of

credit made in violation of any of the provisions of this section shall be an enforceable

debt in the courts ofthis state."

28
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"-/ \..J

DEMAND FOR JURY TRIAL

The Homeowners hereby demand trial by jury as to all issues so triable thereof.

WHEREFORE, the Homeowners pray that this Honorable Court take

jurisdiction of this case; order damages against DEUTSCHE BANK, equal to double the

alleged interest wrongfully charged to the Homeowners and paid to DEUTSCHE BANK

in connection with the subject transaction; Forfeiture of all interest owing DEUTSCHE

BANK on both of the above described consumer credit transactions; refuse to enforce

any debt that may be owed to DEUTSCHE BANK; prejudgment and post judgment

interest on all sums awarded, costs interest and attorneys fees under the consumer credit

transaction documents, and or F.S. §57.105, and such other relief as this Court deems just

and proper.

COUNT XI - ACCOUNTING

95. Counterclaimants readapt, re-allege and reaffirm the material allegations

contained in Paragraphs 1-14, above, of this Counterclaim further allege as follows; to

wit,

96. DEUTSCHE BANK, either directly or by and through the voluntary

assignment taken from MERS, NMI and any other assignors failed to comply with the

conditions and terms of the mortgage and note and/or 12 U.S.C. §2601, et seq (RESPA),

with respect to the proper computation, collection and application of the mortgage

payments and the escrow accounts and payments in connection with the subject

transaction.

29
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\..-I \....J

97. Alternately, DEUTSCHE BANK, either directly or by and through the

voluntary assignment taken from MERS, NMI and any other assignors collected

payments, but failed to properly credited the Homeowners' account, and or collected
I

mortgage payments and/or escrow payments and did not properly credit or post the

payments to the Homeowners' account in violation of the mortgage and note in

connection with subject mortgage transaction.

98. The Homeowners made payments to DEUTSCHE BANK, either directly

or through its assignors or servicer during the term of the subject mortgage transaction

that DEUTSCHE BANK, either directly or through its assignors or servicer did not

properly post to the Homeowners' account.

99. Therefore, the Homeowners are entitled to an accounting of all moneys

DEUTSCHE BANK, either directly or through its assignors have collected from the

Homeowners and paid out on the Homeowners' account for the term of the subject

mortgage transaction, and all the moneys collected by DEUTSCHE BANK, either

directly or through its assignors or servicer under the mortgage and notes and all the

moneys DEUTSCHE BANK, either directly or through its assignors paid out on the

Homeowners' account because of DEUTSCHE BANK's, either directly or through its

assignors,non-compliance with the mortgage and the note terms.

100. As a result of the improperly collecting and posting of payments to the

Homeowners' accounts and improper payments of moneys that DEUTSCHE BANK,

either directly or through its assignors collected and or paid out on The Homeowners'

transaction, the Homeowners' are entitled to an accounting of all those moneys.

30
The IIrda Law Firm, PL, 3350 S. W 14S·lIvenue, Suite 110, Miramar, FL 33027
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DEMAND FOR JURY TRIAL

The Homeowners hereby demand trial by jury as to all issues so triable thereof.

WHEREFORE, the Homeowners pray that this Honorable Court take

jurisdiction of this case; order an accounting under the mortgage and note, restore and/or

return any and all overpayments made by the Homeowners and or improperly paid out by

DEUTSCHE BANK, either directly or through its assignors, dismiss DEUTSCHE

BANK's complaint with prejudice, giving the Homeowners an award of §1640(a)

statutory damages and actual damages in an amount to be established at trial for the

initial disclosure errors, interest, and award costs and reasonable attorney fees as

provided by 15 U.S.C.1640(a)(3), Fla. Ch.§57, the mortgage and note, and such other

relief as this Court deems just and proper.

COUNT XII - RESCISSION UNDER FLA. STAT. §494.00792(2)(d)

101. Counterclaimants readapt, re-allege and reaffirm the material allegations

contained in Paragraphs 1-14, above, of this Counterclaim further allege as follows; to

wit,

102. At all times material hereto, the mortgage transaction at issue herein was

governed by the Florida Fair Lending Act Fla. Stat. §494.0078 - §494.00797 and subject

to any and all defenses under Fla. Stat. §494.00796.

103. DEUTSCHE BANK, either directly or through its assignors engaged in

the business of extending consumer credit in Miami-Dade County, Florida.

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<:>

other assignors, violated the limitations for covered transactions under Fla. Stat.

§494.00791 and the requirements imposed under Fla. Stat. §494.00792.

110. The Homeowners have the continuing right to rescind the subject

mortgage transaction under Fla. Stat. §494.00792(2)(d).

111. As a result of the aforementioned violations of Fla. Stat. §494.00791 and

requirements of Fla. Stat. §494.00792, DEUTSCHE BANK as an assignee under Fla.

Stat. §494.00793 and or Fla. Stat. §494.00792(1)(c) is liable to the Homeowners for the

following:

A. Dismissal of the complaint for failure to follow the required conditions precedent

under Fla. Stat. §494.00794(1), and or §494.00794(2);

B. rescission of both the transactions under Fla. Stat. §494.00792(2)(d);

C. termination of any security interest in the Homeowners' property;

D. Return of any money or property given by the Homeowners to anyone, including

MERS, NMI and their assignee, DEUTSCHE BANK in connection with each

transaction, including interest on said sum;

E. Forfeit the entire interest charged, and only the principal sum of such home loan

can be enforced either at law or in equity under Fla. Stat. §494.00796(1);

F. the right to retain proceeds to vest in the Homeowners; and,

G. reasonable costs and attorney's fees.

33
The Arda Law firm, P.L., 3350 S. W. 148& Avenue, Suite 110, Miramar, FL 33027
Telephone 800·770-7102 - Facsimile 954-433·8389
www.Artial.awiirm.com
"--./ <::

104. At all times material hereto, DEUTSCHE BANK, either directly or

through its assignors, was subject to the Florida Fair Lending Act under Fla. Stat.

§494.0079.

105. On or about November 30, 2006, the Homeowners entered into a

consumer credit transaction with DEUTSCHE BANK, either directly or through its

assignors in which the extended consumer credit transaction was subject to a finance

charge and was initially payable to DEUTSCHE BANK, either directly or through its

assignors.

106. DEUTSCHE BANK attached a copy of the promissory note similar to the

note evidencing the transaction to its Complaint that the Homeowners incorporate herein

by reference.

107. As part of both of the consumer credit transactions, DEUTSCHE BANK,

either directly or through its assignors, retained a security interest in the Homeowners'

primary residence as described in DEUTSCHE BANK's complaint. A copy of the

November 30, 2006 mortgage is attached to the Complaint and incorporated herein by

reference. The above described property is used as the principal dwelling of the

Homeowners and was so at the time of the loan and all modifications thereto.

108. The subject credit transaction was subject to the limitations as set forth in

Fla. Stat. §494.00791 and requirements of Fla. Stat. §494.00792.

109. In the November 30, 2006 transaction, DEUTSCHE BANK, either

directly or by and through the voluntary assignment taken from MERS, NMI and any

32
The Arcia Law Firm, PL, 3350 S. W. 148" Avenue, Suite I 10, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile954-433-8389
www.ArciaLawFirm.com
DEMAND FOR JURY TRIAL

The Homeowners hereby demand trial by jury as to all issues so triable thereof.

WHEREFORE, the Homeowners pray this Court take jurisdiction of this case;

rescind the transaction of November 30, 2006, order DEUTSCHE BANK take all action

necessary to terminate any of its security interest in the Homeowners' property created

under the transaction, that the Court declare all such security interests void, including but

not limited to the mortgage related to the transaction of November 30, 2006 order the

return to the Homeowners of any money or property given by the Homeowners to anyone

in connection with the transaction; enjoin DEUTSCHE BANK during this action and

permanently thereafter from instituting prosecuting or maintaining foreclosure

proceedings on the Homeowners' property, or from recording any deeds or mortgages on

the property or from otherwise taking steps to defraud the Homeowners of ownership of

that property; forfeiture of the entire interest charged; award actual damages in an amount

to be established at trial, and prejudgment interest on all damages, including the

rescission amount, and award costs and attorney fees as provided by the mortgage and

note and Fla. Stat. §57.1 OS, and such other relief as this Court deems just and proper.

Respectfully submitted,

BY:, \ "/
(lFI" ¥III\. :;;;> "

34
The Arcia Law firm. PL. 3350 S. W 148" Avenue, Suite 110, Miramar, FL 33027
Telephone 800-770-7102 - Facsimile 954-433-8389
www.Artial.awiirm.com
.r~ ~ .

;;

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via

facsimile and U.S. Mail to Jared Bannan, Esq., Kahane & Associates, P.A., 8201 Peters

Road, Suite 3000, Plantation, FL 33324, this ~ay of March, 2009.

35
The !lrda Law Firm, PL, 3350 S. W 148"!lvenue, Suite 110, Miramar, fL 33021
Telephone 800-770-7102 - Facsimile 954-433-8389
www.Arclal.awiirm.com