Filing # E-Filed 09/22/ :42:05 PM

Transcription

1 Filing # E-Filed 09/22/ :42:05 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 2014CA AH MICHELLE SMITH, as Personal Representative of the Estate of FELTON JACK SMITH, JR., vs. Plaintiff, DITECH FINANCIAL LLC f/k/a GREEN TREE SERVICING LLC, a Delaware corporation, Defendant. / DEFENDANT S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF S AMENDED COMPLAINT Defendant DITECH FINANCIAL LLC f/k/a GREEN TREE SERVICING LLC ( Defendant or Ditech ) hereby answers the Amended Complaint (the Complaint ) of Plaintiff MICHELLE SMITH, as Personal Representative of the Estate of FELTON JACK SMITH, JR. ( Plaintiff ) and interposes its Affirmative Defenses as follows: 1. Defendant admits that this is an action for damages, but denies that Plaintiff is entitled to recover any damages from it. 2. Defendant denies the allegations contained in Paragraph 2 of the Complaint. 3. Defendant admits that it is a Delaware limited liability company authorized to do business in Florida. 4. Defendant admits that Ditech is the successor by merger to Green Tree Servicing, LLC ( Green Tree ), and that both companies were subsidiaries of Walter Investment Management Corp. at the time of the merger.

2 General Allegations Regarding Green Tree Green s Tree s Business Practices 5. Defendant admits that it is a mortgage servicing company which enters into agreements with mortgage lenders to service mortgage loans, and that, when servicing loans, it may be responsible for, among other things, sending monthly statements to borrowers, collecting payments, applying payments, ensuring that the mortgaged property is insured, and ensuring that property tax payments are made. Defendant denies that the remaining allegations of Paragraph 5 of the Complaint, and specifically denies such allegations to the extent that they suggest that Ditech and Green Tree are separate mortgage servicing companies. Rather, Ditech is the successor by merger to Green Tree. 6. Defendant denies the allegations contained in Paragraph 6 of the Complaint. 7. Defendant denies the allegations contained in Paragraph 7 of the Complaint. 8. Defendant denies the allegations contained in Paragraph 8 of the Complaint. 9. Defendant admits that, after it acquired servicing rights to a portfolio of loans, it gathered certain information about those loans from the prior servicer. Defendant denies the remaining allegations contained in Paragraph 9 of the Complaint. Green s Tree s Loan Servicing and Collection Practices 10. Defendant denies the allegations contained in Paragraph 10 of the Complaint. 11. Defendant denies the allegations contained in Paragraph 11 of the Complaint. 12. Defendant denies the allegations contained in Paragraph 12 of the Complaint. 13. Defendant denies the allegations contained in Paragraph 13 of the Complaint. 14. Defendant denies the allegations contained in Paragraph 14 of the Complaint. 2

3 Green s Tree s Alleged False or Unsubstantiated Claims 15. Defendant denies the allegations contained in Paragraph 15 of the Complaint. 16. Defendant denies the allegations contained in Paragraph 16 of the Complaint. 17. Defendant denies the allegations contained in Paragraph 17 of the Complaint. 18. Defendant denies the allegations contained in Paragraph 18 of the Complaint. Green s Tree s Alleged Unlawful Collection Practices 19. Defendant denies the allegations contained in Paragraph 19 of the Complaint. 20. Defendant denies the allegations contained in Paragraph 20 of the Complaint. 21. Defendant denies the allegations contained in Paragraph 21 of the Complaint. 22. Defendant denies the allegations contained in Paragraph 22 of the Complaint. 23. Defendant denies the allegations contained in Paragraph 23 of the Complaint. 24. Defendant denies the allegations contained in Paragraph 24 of the Complaint. 25. Defendant denies the allegations contained in Paragraph 25 of the Complaint. 26. Defendant denies the allegations contained in Paragraph 26 of the Complaint. Green s Tree s Alleged Problems with Handling Escrow Accounts 27. Defendant denies the allegations contained in Paragraph 27 of the Complaint. 28. Defendant admits the allegations contained in Paragraph 28 of the Complaint. 29. Defendant denies the allegations contained in Paragraph 29 of the Complaint. 30. Defendant denies the allegations contained in Paragraph 30 of the Complaint. Green s Tree s Alleged Acts and Practices Regarding Account Terms and Status 31. Defendant denies the allegations contained in Paragraph 31 of the Complaint. 32. Defendant denies the allegations contained in Paragraph 32 of the Complaint. 33. Defendant denies the allegations contained in Paragraph 33 of the Complaint. 3

4 General Allegations Regarding Smith s Note, Mortgage and Claims against Defendant 34. Defendant denies that National City Mortgage, a division of National City Bank ( National City ) executed the Note. Defendant otherwise admits the remaining allegations contained in Paragraph 34 of the Complaint. 35. Defendant denies that National executed the Mortgage. Defendant otherwise admits the remaining allegations contained in Paragraph 35 of the Complaint. 36. Defendant admits the allegations contained in Paragraph 36 of the Complaint. 37. Defendant admits the allegations contained in Paragraph 37 of the Complaint. 38. Defendant admits the allegations contained in Paragraph 38 of the Complaint. 39. Defendant is without knowledge as to the allegations contained in Paragraph 39 of 40. Defendant is without knowledge as to the allegations contained in Paragraph 40 of 41. Defendant admits that National City Mortgage did not own the Note and Mortgage at issue in November Defendant, however, denies the remaining allegations contained in Paragraph 41 of the Complaint. 42. Defendant denies the allegations contained in Paragraph 42 of the Complaint. 43. Defendant denies the allegations contained in Paragraph 43 of the Complaint. 44. Defendant denies that Smith had never missed a payment with regard to the Note and Mortgage prior to the time when Defendant began servicing the Note and Mortgage. Defendant is without knowledge as to the remaining allegations contained in Paragraph 44 of the Complaint, and therefore denies them. 4

5 45. Defendant admits that it sent the Notice of Default and Right to Cure Default letter attached as Exhibit H to the Complaint to Smith on or about November 13, 2009, which letter speaks for itself. 46. Defendant admits that it produced a loan payment history in this action, and that the loan payment history speaks for itself. Defendant denies the remaining allegations contained in Paragraph 46 of the Complaint. Defendant specifically denies that its loan payment history is not supported by any substantiating documentation. 47. Defendant admits that it produced a loan payment history in this action, and that the loan payment history speaks for itself. Defendant denies the remaining allegations contained in Paragraph 47 of the Complaint. 48. Defendant admits that it sent letter attached as Exhibit I to the Complaint to Smith on or about November 18, 2009, which letter speaks for itself. 49. Defendant admits that it produced a loan payment history in this action, and that the loan payment history speaks for itself. Defendant denies the remaining allegations contained in Paragraph 49 of the Complaint. 50. Defendant admits that both of the letters attached as Exhibits H and I contain the language quoted in Paragraph 50 of the Complaint. 51. Defendant denies that Smith had never missed a payment with regard to the Note and Mortgage at the time of the November 2009 inspection of the Mortgaged Property. Defendant admits the remaining allegations contained in Paragraph 51 of the Complaint, except to the extent that such allegations contradict the Inspection Result attached as Exhibit J to the Complaint, which Inspection Result speaks for itself. 5

6 52. Defendant admits that it sent the letter attached as Exhibit K to the Complaint to Smith on or about December 8, 2009, which letter speaks for itself. Defendant denies the remaining allegations contained in Paragraph 52 of the Complaint. 53. Defendant denies the allegations contained in Paragraph 53 of the Complaint. 54. Defendant denies the allegations contained in Paragraph 54 of the Complaint. 55. Defendant admits that it ordered an appraisal of Smith s Mortgaged Property in or about December Defendant denies the remaining allegations contained in Paragraph 55 of the Complaint. 56. Defendant admits that it sent the letter attached as Exhibit M to the Complaint to Smith on or about December 23, 2009, which letter speaks for itself. 57. Defendant is without knowledge as to the allegations contained in Paragraph 57 of 58. Defendant admits that it sent the letter attached as Exhibit O to the Complaint to Smith on or about February 9, 2010, which letter speaks for itself. Defendant denies the remaining allegations contained in Paragraph 58 of the Complaint. 59. Defendant is without knowledge as to the allegations contained in Paragraph 59 of 60. Defendant denies the allegations contained in Paragraph 60 of the Complaint. 61. Defendant admits the allegations contained in Paragraph 61 of the Complaint. 62. Defendant denies the allegations contained in Paragraph 62 of the Complaint. 63. Defendant denies the allegations contained in Paragraph 63 of the Complaint. 64. Defendant denies that it overlooked any significant defects in title, but otherwise admits the remaining allegations contained in Paragraph 64 of the Complaint. 6

7 65. Defendant admits that its counsel in the 2010 foreclosure action against Smith was Smith, Hiatt & Diaz, P.A. 66. Defendant is without knowledge as to the allegations contained in Paragraph 66 of 67. Defendant denies the allegations contained in Paragraph 67 of the Complaint. 68. Defendant denies the allegations contained in Paragraph 68 of the Complaint. 69. Defendant admits that it sent the letter attached as Exhibit R to the Complaint to Smith on or about July 22, 2010, which letter speaks for itself. Defendant denies the remaining allegations contained in Paragraph 69 of the Complaint. 70. Defendant is without knowledge as to the allegations contained in Paragraph 70 of 71. Defendant admits the allegations contained in Paragraph 71 of the Complaint. 72. Defendant is without knowledge as to the allegations contained in Paragraph 72 of 73. Defendant admits that it sent the letter attached as Exhibit U to the Complaint to Smith s counsel on or about May 5, 2011, which letter speaks for itself. Defendant denies the remaining allegations contained in Paragraph 73 of the Complaint. 74. Defendant denies the allegations contained in Paragraph 74 of the Complaint. 75. Defendant denies that Plaintiff has been forced to retain counsel as a result of its conduct at issue. Defendant is without knowledge as to the remaining allegations contained in Paragraph 75 of 76. Defendant denies the allegations contained in Paragraph 76 of the Complaint. Count I Equitable Accounting 77. Defendant realleges and reavers herein paragraphs 1 through 76 above. 7

8 78. Defendant denies the allegations contained in Paragraph 78 of the Complaint. 79. Defendant denies the allegations contained in Paragraph 79 of the Complaint. 80. Defendant denies the allegations contained in Paragraph 80 of the Complaint. 81. Defendant denies the allegations contained in Paragraph 81 of the Complaint. 82. Defendant denies the allegations contained in Paragraph 82 of the Complaint. 83. Defendant is without knowledge as to the allegations contained in Paragraph 83 of 84. Defendant denies the allegations contained in Paragraph 84 of the Complaint. Count II Alleged FDUTPA Violation 85. Defendant realleges and reavers herein paragraphs 1 through 76 above. 86. The allegations contained in Paragraph 86 of the Complaint are conclusions of law to which Defendant is not required to provide an answer. To the extent that an answer is required, 87. The allegations contained in Paragraph 87 of the Complaint are conclusions of law to which Defendant is not required to provide an answer. To the extent that an answer is required, 88. Defendant denies the allegations contained in Paragraph 88 of the Complaint. 89. Defendant denies the allegations contained in Paragraph 89 of the Complaint. 90. Defendant denies the allegations contained in Paragraph 90 of the Complaint. 91. Defendant denies the allegations contained in Paragraph 91 of the Complaint. 92. Defendant denies the allegations contained in Paragraph 92 of the Complaint. 93. Defendant denies the allegations contained in Paragraph 93 of the Complaint. 94. Defendant denies the allegations contained in Paragraph 94 of the Complaint. 8

9 Count III Alleged FCCPA Violation 95. Defendant realleges and reavers herein paragraphs 1 through 76 above. 96. Defendant admits that Plaintiff has brought this action against it for alleged damages and injunctive relief arising from purported violations of the FCCPA, but denies that Defendant has violated the FCCPA and that Plaintiff is entitled to any damages against it. 97. The allegations contained in Paragraph 97 of the Complaint are conclusions of law to which Defendant is not required to provide an answer. To the extent that an answer is required, 98. The allegations contained in Paragraph 98 of the Complaint are conclusions of law to which Defendant is not required to provide an answer. To the extent that an answer is required, 99. The allegations contained in Paragraph 99 of the Complaint are conclusions of law to which Defendant is not required to provide an answer. To the extent that an answer is required, 100. The allegations contained in Paragraph 100 of the Complaint are conclusions of law to which Defendant is not required to provide an answer. To the extent that an answer is required, 101. The allegations contained in Paragraph 101 of the Complaint are conclusions of law to which Defendant is not required to provide an answer. To the extent that an answer is required, 102. Defendant denies the allegations contained in Paragraph 102 of the Complaint Defendant denies the allegations contained in Paragraph 103 of the Complaint Defendant denies the allegations contained in Paragraph 104 of the Complaint Defendant denies the allegations contained in Paragraph 105 of the Complaint. 9

10 106. Defendant denies that Plaintiff has been forced to retain counsel as a result of its conduct at issue. Defendant is without knowledge as to the remaining allegations contained in Paragraph 106 of 107. Defendant denies the allegations contained in Paragraph 107 of the Complaint. Count IV Cancellation of Deed 108. Defendant realleges and reavers herein paragraphs 1 through 76 above Count IV of Plaintiff s Amended Complaint has been dismissed with prejudice Count IV of Plaintiff s Amended Complaint has been dismissed with prejudice Count IV of Plaintiff s Amended Complaint has been dismissed with prejudice Count IV of Plaintiff s Amended Complaint has been dismissed with prejudice. Count V Alleged Malicious Prosecution 113. Defendant realleges and reavers herein paragraphs 1 through 76 above Defendant admits the allegations contained in Paragraph 114 of the Complaint, except that the foreclosure action was not commenced against the present Plaintiff, Smith The allegations contained in Paragraph 115 of the Complaint are conclusions of law to which Defendant is not required to provide an answer. To the extent that an answer is required, 116. The allegations contained in Paragraph 116 of the Complaint are conclusions of law to which Defendant is not required to provide an answer. To the extent that an answer is required, 117. Defendant denies the allegations contained in Paragraph 117 of the Complaint Defendant denies the allegations contained in Paragraph 118 of the Complaint Defendant denies the allegations contained in Paragraph 119 of the Complaint. 10

11 Count VI Action Pursuant to Fla. Stat. Sect Defendant realleges and reavers herein paragraphs 1 through 76 above Count VI of Plaintiff s Amended Complaint has been withdrawn by Plaintiff Count VI of Plaintiff s Amended Complaint has been withdrawn by Plaintiff. Count VI Alleged Negligent Misrepresentation 123. Defendant realleges and reavers herein paragraphs 1 through 76 above Defendant denies the allegations contained in Paragraph 124 of the Complaint Defendant denies the allegations contained in Paragraph 125 of the Complaint Defendant denies the allegations contained in Paragraph 126 of the Complaint Defendant denies the allegations contained in Paragraph 127 of the Complaint Defendant denies the allegations contained in Paragraph 128 of the Complaint Defendant denies the allegations contained in Paragraph 129 of the Complaint Defendant denies the allegations contained in Paragraph 130 of the Complaint Defendant denies the allegations contained in Paragraph 131 of the Complaint Defendant denies the allegations contained in Paragraph 132 of the Complaint Defendant denies the allegations contained in Paragraph 133 of the Complaint. DEMAND FOR TRIAL BY JURY Plaintiff waived any entitlement he may have had to a jury trial against Defendant when he entered into the Mortgage that secures the loan that is the subject of this action, and thus Plaintiff s jury trial demand should be stricken. AFFIRMATIVE DEFENSES 1. Plaintiff is not entitled to an equitable accounting because the transactions or accounts at issue are not so complicated so as require to an equitable accounting. 11

12 2. Plaintiff is not entitled to an equitable accounting because an adequate remedy at law exists. This is evidenced by, among other things, the fact that Plaintiff previously asserted a breach of contract claim against Defendant. 3. Plaintiff is not entitled to an equitable accounting because Plaintiff failed to make a demand / request for an accounting from Defendant that was refused by Defendant prior to commencing this action. 4. If Defendant is not a proper assignee of the Mortgage, as Plaintiff alleges, then Defendant is not the proper party defendant to Plaintiff s claim for an equitable accounting. 5. Defendant is not liable to Plaintiff because its alleged violation(s) of the FCCPA was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error. 6. To the extent that any alleged act or omission of Defendant is deemed to be in violation of the FCCPA, Plaintiff may not recover statutory damages against Defendant for same because the applicable FCCPA provision(s) are unconstitutional, as applied, due to vagueness and overbreadth. 7. Plaintiff s claims are barred, in whole or in part, by the Florida litigation privilege. 8. Plaintiff s claims, including but not limited to Plaintiff s equitable accounting, FDUTPA, FCCPA, malicious prosecution, and negligent misrepresentation claims, are timebarred, in whole or in part, by the applicable statute of limitations. 9. Plaintiff s negligent misrepresentation claim fails because Felton Smith did not justifiably rely on any alleged misrepresentation made by Defendant. 12

13 10. Plaintiff s alleged damages, in whole or in part, were caused not by the actions or omissions of Defendant, but instead by the actions or omissions of Plaintiff and/or Felton Smith. 11. Plaintiff s alleged damages, in whole or in part, were caused not by the actions or omissions of Defendant, but instead by the actions or omissions of third parties, including the prior loan servicer(s), PNC Bank, N.A 12. Plaintiff was negligent and therefore Plaintiff s claims are barred and/or his damages reduced, in whole or in part, by his own comparative / contributory negligence. 13. Plaintiff s alleged damages, if any, are speculative. 14. Plaintiff failed to mitigate his / its damages. 15. Any amounts recovered herein by Plaintiff, the entitlement to which Defendant denies, should be set off by any amounts due to Defendant by Plaintiff. DEFENSES 1. Plaintiff s FCCPA claim fails because Defendant did not know that the debt at issue was not legitimate. 2. Plaintiff s FCCPA claim fails because Defendant did not know that the legal rights it asserted did not exist. WHEREFORE, Defendant Ditech prays that Plaintiff takes nothing by way of the Amended Complaint and that same be dismissed with prejudice, and that Defendant be granted such other and further relief as the Court deems just and proper in the premises, including but not limited to an award of Defendant s reasonable attorney s fees and costs incurred in defending this action pursuant to the parties loan documents and/or applicable statute. 13

14 SHUTTS & BOWEN LLP Counsel for Defendant 200 South Biscayne Boulevard Suite 4100 Miami, Florida Tel.: (305) Fax: (305) By: /s/ John W. Bustard John W. Bustard Florida Bar No CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by eservice this 22 nd day of September, 2016 to: Geoff S. Stahl, Esquire, LIGGIO LAW, P.A., 1615 Forum Place, Suite 3-B, Wet Palm Beach, FL (gstahl@liggiolaw.com; service@ligglowlaw.com). /s/ John W. Bustard Of Counsel MIADOCS