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Earl S. David, Esq. Attorney At Law The Law Center 1091 River Ave, Unit 17 Lakewood NJ 08701 Tel.

908-907-0953 Attorney for Defendant(s)

-----------------------------------------------------------X FORECLOSURE BANK SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION MERCER COUNTY Plaintiff, DOCKET NO.: XXXXXX --against-CIVIL ACTION ANSWER, DEFENSES AND COUNTERCLAIMS JOHN DOE, Defendant(s). -----------------------------------------------------------X

CONTESTING ANSWER

Defendants and their spouses,as and for their Answer to Plaintiff's Complaint respectfully hereby answer and allege as follows: 1. paragraph 1. 2. 2.1 3. 4. 5. Defendants admit the allegations set forth in paragraph 2. Defendants admit the allegations set forth in paragraph 2.1. Defendant deny the allegations in paragraph 3 and demand strict proof thereof. Defendants admit that Plaintiffs Schedule A describes the property in question. Defendants neither admit nor deny the allegations set forth in paragraph 5. Defendants admit that Mr.DOE executed a note on Feb. 13, 2007 as set forth in

6.

Defendants neither admit nor deny the allegations set forth in paragraph 6.

6a. Defendants neither admit nor deny the allegations set forth in paragraph 6a. 6b. Defendants neither admit nor deny the allegations set forth in paragraph 6b. 7. Defendants deny the allegations in paragraph 7 and demand strict proof thereof. 8. 9. 10. Defendants deny the allegations in paragraph 8 and demand strict proof thereof. Defendants neither admit nor deny the allegations set forth in paragraph 9. Defendants deny the allegations in paragraph 10 and demand strict proof thereof. AS TO THE SECOND COUNT: 1. 2. 3. Defendants deny the allegations in paragraph 1 and demand strict proof thereof. Defendants deny the allegations in paragraph 2 and demand strict proof thereof. Defendants deny the allegations that plaintiff is deprived of the subject premises

and demand strict proof thereof.

AS TO THE THIRD COUNT: 1. Defendants deny the allegations in paragraph 1 and demand strict proof thereof. 2. Defendants neither admit nor deny the allegations in paragraph 2. 3. Defendants neither admit nor deny the allegations in paragraph 3.

AS TO ALL COUNTS: Defendants deny each and every allegation of the Complaint not hereinbefore expressly and specifically admitted, controverted or denied.

AFFIRMATIVE DEFNSES: AFFIRMATIVE DEFENSES AS AND FOR A FIRST, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

1.

The Complaint fails to state a cause of action.

AS AND FOR A SECOND, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

2.

This Court lacks personal jurisdiction over this defendant.

AS AND FOR A THIRD, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

3. expired.

That upon information and belief, the applicable Statute of Limitations has

AS AND FOR A FOURTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

4.

That upon information and belief, the damages claimed in Plaintiff's Cause(s) of

Action were caused, if any were in fact sustained, by acts or omissions of others, including Plaintiff, for which Defendants has no legal responsibility or culpability. AS AND FOR A FIFTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

5.

That upon information and belief, no contract ever existed in accordance with the

terms that were set forth in the Complaint. AS AND FOR A SIXTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

6.

That upon information and belief, defendant alleges that any wrong that may have

been done to Plaintiff, was a direct and/or proximate result of Plaintiff's carelessness, recklessness and/or negligent conduct and as such should be precluded from any kind of recovery. AS AND FOR A SEVENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

7.

That upon information and belief, Plaintiff should be estopped from asserting any

claim of any kind against the defendant. AS AND FOR AN EIGHTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

8.

That upon information and belief, the claim which is the subject matter of the

cause of action set forth in the complaint in the above entitled action is prohibited by and contravenes the statutory law and public policy of the State of New Jersey and/or federal law by reason of the fact that the underlying claim violates the usury laws and/or the Fair Debt Collections Act, and/or any City and State of New Jersey or federal ordinance law or codified statute. AS AND FOR A NINTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

(Truth in Lending Act) 9. Plaintiff is in violation of the Truth in Lending Act, 15 U.S.C.A. 1601 et.seq.,

since required disclosures were not made at the time of the closing of the loan. AS AND FOR A TENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

(Fraud, Duress, and Undue Influence) 10. Plaintiff's claim is barred because the note was procured by fraud and/or duress

and/or undue influence. The alleged note is void and unenforceable. Any alleged loss to the Plaintiff is caused by the fraud of the Plaintiff and/or the fraud of third parties over which the Defendant had no control. AS AND FOR A ELEVENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

(Fair Debt Collection Practices Act) 11. Plaintiff has not provided Defendant with payoff and reinstatement figures or debt

verification, and/or other information as was requested according to the Fair Debt Collection Practices Act, 15 U.S.C. 1601, et.seq. AS AND FOR A TWELVTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

12.

The Complaint is procedurally flawed because Plaintiff ignored the requirement

to attach all necessary documents to the Complaint according to the Rules Governing the Courts of the State of New Jersey and case law. Without these documents, it is impossible for the Defendant to know if the party currently doing the suing is the proper party to be bringing the suit. Thus, these are necessary documents that must be included for the Complaint to be considered complete and ripe for proceeding.

AS AND FOR A THIRTEENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

13.

The loan money was not disbursed by the lender in accordance with the terms of

its loan commitment, either in whole or in part, and therefore there was a lack of consideration when the supposed contract was entered into.

AS AND FOR A FOURTEENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

14.

Waiver may be implied since the conduct of the lender is such that a reasonable

inference can be made by the borrower that the lender has voluntarily given up certain rights. AS AND FOR A FIFTEENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

15.

The rate of interest for the current loan is unethically high, so the Court should

find this interest rate to be usurious and dismiss the foreclosure action.

AS AND FOR A SIXTEENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

16.

Where a bank becomes involved in a transaction with a customer with whom it

has established a relationship of trust and confidence, and it is a transaction from which the bank is likely to benefit at the customer's expense (such as collecting interest payments, for example), the bank may be found to have a duty to disclose all facts that are material to the transaction. The

bank had information about the Note and closing that was not made available to Defendant at the time of the closing or before, and therefore they have breached their fiduciary duty to Defendant.

AS AND FOR A SEVENTEENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

17. Plaintiff did not abide by N.J.S.A. 2A:50-56(b) when it did not give an adequate description of the default in the notice of intent AS AND FOR AN EIGHTEENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

18. Plaintiff is not in compliance with FDCPA due to an improper verification required by 15 USC 1692g(b). AS AND FOR ANINETEENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE: 19. Lack of Assignment and Power of Attorney as no proof nor allegation asserted that the Lender assigned the Mortgage and Note to the Plaintiff herein.

AS AND FOR A TWENTIETH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE: 20. The absence of a chain of title, with appropriate assignments requires dismissal of the action, pursuant to New jersey rule 4:64-(1)(a)(1). By reason of the failure of

assignments, proof of ownership and title to the mortgage and note, the action must be dismissed.

AS AND FOR A TWENTY FIRST, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE: 21. ILLEGAL CHARGES ADDED TO BALANCE: Plaintiff has charged and/or collected payments from Defendants for attorney fees, legal fees, foreclosure costs, late charges, property inspection fees, title search expenses, filing fees, broker price opinions, appraisal fees, and other charges and advances, and predatory lending fees and charges that are not authorized by or in conformity with the terms of the subject note and mortgage or the controlling pooling and servicing agreement which specifies the waiver of late payments and other collection charges as part of the forbearance and loan modification default loan servicing. Plaintiff wrongfully added and continues to unilaterally add these illegal charges to the balance Plaintiff claims is due and owing under the subject note and mortgage.

AS AND FOR A TWENTY SECOND, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

22. Plaintiff is in violation of the Real Estate Settlement Procedures Act, 12 U.S.C. 2601 et. ~because there were certain facts that were important to the closing of the original loan that were not disclosed to Defendant by the mortgage broker who was acting as an agent for the Plaintiff.

AS AND FOR TWENTY THIRD, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

23. The original terms of the Note and Mortgage are unconscionable pursuant to the New Jersey Consumer Fraud Act, NJ.S.A. 56:8-1 et. seq.

AS AND FOR A TWENTY FOURTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

24. Plaintiff's claim is barred because the mortgage was procured by fraud and/or duress and/or undue influence. The alleged mortgage is void and unenforceable. Any alleged loss to the Plaintiff is caused by the fraud of the Plaintiff and/or the fraud of third parties over which the Defendant had no control.

AS AND FOR A TWENTY FIFTH , SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

25. The Complaint is procedurally flawed because Plaintiff ignored the requirement to attach all necessary documents to the Complaint according to the Rules Governing the Courts of the State of New Jersey and case law. Without these documents, it is impossible for the Defendant to know if the party currently doing the suing is the proper party to be bringing the suit. Thus, these are necessary documents that must be included for the Complaint to be considered complete and ripe for proceeding. THE MORTGAGE AND NOTE were not attached to the complaint.

AS AND FOR A TWENTY SIXTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE:

26. The Complaint is procedurally flawed because Plaintiff failed to serve Defendant with information and instructional materials on the New Jersey Foreclosure Mediation Program with the Summons and Complaint as required by R. 4:4-4 and R. 4:64-1(d).

AS AND FOR A TWENTY SEVENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE: 27. Plaintiff should not be allowed to foreclose at this point because they waited too long to bring the action and Defendant has been detrimentally affect by their delay.

AS AND FOR A TWENTY EIGHTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE: 28. Additionally, the notices by law and the terms of the mortgage were not sent by an authorized person, nor did said notices contain the required statements, and were not sent in an authorized manner. By reason thereof, Plaintiff may not foreclose on the mortgage and the instant action must be dismissed. AS AND FOR A TWENTY NINTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT(S) ALLEGE: 29. Plaintiff was not in possession of the Note at the time of commencement of the action and by reason thereof, Plaintiff did not own the purported debt. The mortgage cannot be separated from

the debt and thereof, Plaintiff was not authorized to commence the action. Even if plaintiff was in possession of note at the time the action was started, no proper certification was made. This omission warrants dismissal of this action.

COUNTERCLAIMS (FIRST COUNT) (New Jersey Consumer Fraud Act) 1. 2. Defendant repeats and re-alleges all paragraphs above as if fully set forth herein. Plaintiff or Plaintiff's predecessor in interest engaged in unconscionable

commercial practices, deception, fraud, false pretense, false promise and/or misrepresentations with regard to the subject loan. 3. Alternatively, and/or additionally, Plaintiff or Plaintiff's predecessor in interest

engaged in acts of omission, including but not limited to knowing concealment, suppression and omissions of material facts in connection with the subject loan.

4.

The foregoing acts of Plaintiff constitute violations of New Jersey's Consumer

Fraud Act, et.seq., as a result of which Defendant suffered ascertainable loss.

SECOND COUNT (Violations of the Truth in Lending Act) 1. Defendant repeats and re alleges all paragraphs above as if fully set forth herein.

2.

At all times relevant Plaintiff or Plaintiff's assignor was a creditor under the

federal Truth in Lending Act, 15 U.S.C.A. 1601 et.seq. (TILA) that was required to provide notices of the right to rescind the loan and deliver material disclosures to Defendants. 3. Plaintiff or Plaintiff's alleged assignor failed to comply with TILA by failing to

provide Defendant with proper and accurate written rescission notices and accurate material disclosures as required by TILA. 4. The TILA violations complained of herein were apparent on the face of the

assigned documents, resulting in assignee liability pursuant to 15 U.S.C. 1641(e). 5. In light of these violations, Defendant was and is entitled to rescind the loan.

THIRD COUNT (Defamation of Credit) 1. 2. Defendants repeats and re alleges all paragraphs above as if fully set forth herein. As a direct result of Plaintiff's filing of this lawsuit against Defendant, it has

defamed, ruined and irreparably damaged Defendant's credit as the lawsuit is a matter of the public record.

WHEREFORE, Defendant demands judgment against the Plaintiff as follows: A. B. C. D. Dismissing the Complaint in its entirety with prejudice; Awarding actual and statutory damages, attorney's fees and costs; Declaratory and injunctive relief rescinding and/or reforming the agreement; and Granting such other relief as this Honorable Court deems equitable and just.

DATED: August 2, 2011

__________________________ Earl S. David, Esq.

CERTIFICATION PURSUANT TO RULE 4:5-1 The undersigned does hereby certify that the matter in controversy is not the subject of any other action pending in any other New Jersey Court. There are no pending arbitration proceedings. No other action or arbitration proceedings are contemplated. No non-party is known who would be subject to inclusion or joinder in this case because of potential liability.

DATED:August 3, 2011

__________________________ Earl S. David, Esq.

CERTIFICATION OF MAILING ANSWER TO COURT AND TO THE ATTORNEY FOR THE PLAINTIFF PURSUANT TO RULE 4:6-1(d) I hereby certify that: 1. A copy of the within Answer was filed within the time prescribed by the Rules of Court. 2. On August 3, 2011, the undersigned, mailed to ,Attorneys for Plaintiff, by regular mail, a true copy of the within Answer. I hereby certify that the statements made by me in this document are true. I am aware that ifany are willfully false, I am subject to punishment.

Dated:August 3, 2011 _________________________