defendants' answer, ads & ccs

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOISCOUNTY DEPARTMENT, CHANCERY DIVISION

Deutsche Bank National Trust Company as Trustee for American Home Mortgage Assets Trust 2006-5 Mortgage-Backed Pass-Through Certificates, Series 2006-5,

Plaintiff,

v.

Ellen Ravitz aka Ellen M. Ravitz; Unknown Heirs And Legatees of Ellen Ravitz, if any; Unknown Owners and Non Record Claimants;

Defendants.

))))))))))))))

Case No. 2009-CH-50831

Honorable Jesse Reyes, Presiding Judge

Calendar 57

DEFENDANT ELLEN RAVITZ’S THIRD AMENDED VERIFIED ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS TO PLAINTIFF’S COMPLAINT TO

FORECLOSE MORTGAGE

NOW COMES Defendant Ellen Ravitz, by and through her counsel, Emerson Law Firm, LLC,

and hereby states as follows:

DEFENDANT’S ANSWERS TO PLAINTIFF’S COMPLAINT

A. To The Explicit Complaint Allegations (which Answers correspond to Plaintiff’s related Complaint paragraph numbers and parenthetical letters):

1. Admits that Plaintiff filed its Complaint, but denies that Plaintiff or the Trust for which it acts is

entitled to any relief hereunder.

2. Admits that Plaintiff attached two exhibits to its Complaint, but denies that those two exhibits

are absolute and true copies of the original Note and Mortgage as they may (or may not) now

exist.

3. Defendant admits in part and denies in part the allegations contained in Complaint paragraph 3,

as follows:

(a) Admit.

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(b) Admit.

(c) Admit.

(d) Admit.

(e) Admit.

(f) Admit.

(g) Admit.

(h) Admit.

(i) Admit.

(j) Defendant is without sufficient knowledge to admit or deny these allegations and therefore

denies the same and demands strict proof thereof at trial.

(k) Admit.

(l) Defendant is without sufficient knowledge to admit or deny these allegations and therefore

denies the same and demands strict proof thereof at trial.

(m) Admit.

(n) Defendant denies that she has any heirs or legatees, since she is alive.

(o) Defendant admits that Plaintiff may request a deficiency judgment, but denies that she has any

liability therefor.

(p) Defendant admits that Plaintiff may request attorneys’ fees, costs and expenses, but denies that

she has any liability therefor.

4. Defendant is without sufficient knowledge or information after reasonable investigation to form

a belief as to the truth of the allegations stated in ¶4.

5. Defendant admits that Plaintiff may request a deficiency judgment, but denies that she has any

liability therefor.

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6. Defendant denies Plaintiff’s entitlement to any relief under Paragraph 6 of the Complaint. The

subject property is not vacant.

7. Defendant denies Plaintiff’s entitlement to a receivership or to appointment as mortgagee in

possession of the subject residential property.

B. Answers to Plaintiff’s Implicit, Deemed, and/or Construed Allegations under IMFL Section 15-1504(c) (735 ILCS 5/15-1504(c))

IMFL Subsection 15-1504(a) provides, in part, that: “The statements contained in a complaint

in the form set forth in subsection (a) of Section 15-1504 are deemed and construed to include” certain

allegations.Those certain deemed and construed allegations and Defendant’s Answers thereto are as

follows:

[Per 735 ILCS 5/15-1504(c)](1)]: on the date indicated the obligor of the indebtedness or other obligations secured by the mortgage was justly indebted in the amount of the indicated original indebtedness to the original mortgagee or payee of the mortgage note.

ANSWER: Admit.

[Per 735 ILCS 5/15-1504(c)](2)]: that the exhibits attached are true and correct copies of the mortgage and note and are incorporated and made a part of the complaint by express reference.

ANSWER: Admits that Plaintiff attached two exhibits to its Complaint, but denies that those two exhibits are absolute and true copies of the original Note and Mortgage as they may (or may not) now exist or may or may not have been transferred.

[Per 735 ILCS 5/15-1504(c)](3)]: that the mortgagor was at the date indicated an owner of the interest in the real estate described in the complaint and that as of that date made, executed and delivered the mortgage as security for the note or other obligations.

ANSWER: Admit.

[Per 735 ILCS 5/15-1504(c)](4)]: that the mortgage was recorded in the county in which the mortgaged real estate is located, on the date indicated, in the book and page or as the document number indicated.

ANSWER: Admit.

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[Per735 ILCS 5/15-1504(c)](5)]: that defaults occurred as indicated.

ANSWER: Defendant is without sufficient knowledge to admit or deny these allegations and therefore denies the same and demands strict proof thereof at trial.

[Per 735 ILCS 5/15-1504(c)](6)]: that at the time of the filing of the complaint the persons named as present owners are the owners of the indicated interests in and to the real estate described.

ANSWER: Admit.

[Per 735 ILCS 5/15-1504(c)](7)]: that the mortgage constitutes a valid, prior and paramount lien upon the indicated interest in the mortgaged real estate, which lien is prior and superior to the right, title, interest, claim or lien of all parties and nonrecord claimants whose interests in the mortgaged real estate are sought to be terminated.

ANSWER: Defendant is without sufficient knowledge or information after reasonable investigation to form a belief as to the truth of these allegations and therefore denies the same.

[Per 735 ILCS 5/15-1504(c)](8)]: that by reason of the defaults alleged, if the indebtedness has not matured by its terms, the same has become due by the exercise, by the plaintiff or other persons having such power, of a right or power to declare immediately due and payable the whole of all indebtedness secured by the mortgage.


[Per 735 ILCS 5/15-1504(c)](9)]: that any and all notices of default or election to declare the indebtedness due and payable or other notices required to be given have been duly and properly given.


[735 ILCS 5/15-1504(c)](10)]: that any and all periods of grace or other period of time allowed for the performance of the covenants or conditions claimed to be breached or for the curing of any breaches have expired.


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[735 ILCS 5/15-1504(c)](11)]: that the amounts indicated in the statement in the complaint are correctly stated and if such statement indicates any advances made or to be made by the plaintiff or owner of the mortgage indebtedness, that such advances were, in fact, made or will be required to be made, and under and by virtue of the mortgage the same constitute additional indebtedness secured by the mortgage.


[735 ILCS 5/15-1504(c)](12)]: that, upon confirmation of the sale, the holder of the certificate of sale or deed issued pursuant to that certificate or, if no certificate or deed was issued, the purchaser at the sale will be entitled to full possession of the mortgaged real estate against the parties named in clause (T) of paragraph (3) of subsection (a) of Section 15-1504 or elsewhere to the same effect; the omission of any party indicates that plaintiff will not seek a possessory order in the order confirming sale unless the request is subsequently made under subsection (h) of Section 15-1701 or by separate action under Article 9 of this Code.


C. Answers to Plaintiff’s Implicit, Deemed, and/or Construed Allegations under IMFL Section 15-1504(d) (735 ILCS 5/15-1504(d))

735 ILCS 5/15-1504(d) provides that: “A statement in the complaint that plaintiff seeks the inclusion of attorneys' fees and of costs and expenses shall be deemed and construed to include allegations:(1) that plaintiff has been compelled to employ and retain attorneys to prepare and file the complaint and to represent and advise the plaintiff in the foreclosure of the mortgage and the plaintiff will thereby become liable for the usual, reasonable and customary fees of the attorneys in that behalf; (2) that the plaintiff has been compelled to advance or will be compelled to advance, various sums of money in payment of costs, fees, expenses and disbursements incurred in connection with the foreclosure, including, without limiting the generality of the foregoing, filing fees, stenographer's fees, witness fees, costs of publication, costs of procuring and preparing documentary evidence and costs of procuring abstracts of title, Torrens certificates, foreclosure minutes and a title insurance policy; (3) that under the terms of the mortgage, all such advances, costs, attorneys' fees and other fees, expenses and disbursements are made a lien upon the mortgaged real estate and the plaintiff is entitled to recover all such advances, costs, attorneys' fees, expenses and disbursements, together with interest on all advances at the rate provided in the mortgage, or, if no rate is provided therein, at the statutory judgment rate, from the date on which such advances are made; (4) that in order to protect the lien of the mortgage, it may become necessary for plaintiff to pay taxes and assessments which have been or may be levied upon the mortgaged real estate; (5) that in order to protect and preserve the mortgaged real estate, it may also become necessary for the plaintiff to pay liability (protecting mortgagor and mortgagee), fire and other hazard insurance premiums on the mortgaged real estate, make such repairs to the mortgaged real estate as may reasonably be deemed necessary for the proper preservation thereof, advance for costs to inspect the mortgaged real estate or to appraise it, or both, and advance for premiums for pre-existing private or

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governmental mortgage insurance to the extent required after a foreclosure is commenced in order to keep such insurance in force; and (6) that under the terms of the mortgage, any money so paid or expended will become an additional indebtedness secured by the mortgage and will bear interest from the date such monies are advanced at the rate provided in the mortgage, or, if no rate is provided, at the statutory judgment rate.

ANSWER: Defendant admits that IMFL Subsection 15-1506(d) contains deemed allegations (1)

through (6) set forth above, but denies that Plaintiff is entitled to any relief as a result of those deemed

and construed allegations.

FACTS COMMON TO ALL ALLEGATIONS

1. American Brokers Conduit (“Lender” or “ABC”) is the originator of the Note (attached as

Exhibit A) and Mortgage.

2. Mortgage Electronic Registration Systems, Inc. (“MERS”), as Nominee for American Brokers

Conduit, was the original mortgagee under the Mortgage.

3. Deutsche Bank National Trust Company as Trustee for American Home Mortgage Assets Trust

2006-5 Mortgage-Backed Pass-Through Certificates, Series 2006-5 (“Plaintiff” or “Deutsche”)

is the Plaintiff in the current action.

4. American Home Mortgage Assets Trust 2006-5 Mortgage-Backed Pass-Through Certificates,

Series 2006-5 (“the Trust”) is the alleged current owner of the Note and Mortgage.

5. Defendant Ravitz (“Defendant” or “Ravitz”) is the borrower.

6. On or about August 22, 2006, Ravitz executed a Note and Mortgage in favor of ABC secured

by real estate located at 118 Home Avenue, Oak Park, IL 60302.

7. At this closing, Ravitz was presented with a mountain of documents with contradictory and

false information for her signature. Given the expediency of the proceeding, Ravitz was

unaware of these contradictions and falsities.

8. Feeling frustrated, confused, and rushed to complete the transaction, Ravitz signed the closing

documents.

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9. The Note contains provisions that subject the borrower to “negative amortization” when the

payments under the Note do not cover the monthly interest. The unpaid interest is then added to

the balance of the mortgage, and interest accrues thereon.

10. Additionally, the Note states that once the loan balance reaches 125 percent of the original loan

principal, the loan is automatically recast as a fully amortizing loan.

11. Also, section 4(G) of the Note states that the principal sum may grow beyond the original

principal. Thus it is impossible to determine at any time from the four corners of the Note (and

any permitted ARM index) how much principal is owing to the Note owner; the principal is not

a fixed amount of money.

12. The Note states that the interest rate on the loan is capped at 10.350%.

13. Adjustable Rate Mortgage loans (“ARMs”), like the Note in the instant case, have drawn

scrutiny from government regulators because of the risk of severe payment shock they present

and, significantly, because of the lenders’ frequent misrepresentation of the terms of these

products to potential borrowers.

14. Ravitz’s mortgage loan was identified in a Mortgage Loan Purchase Agreement dated

September 22, 2006 between American Home Mortgage Corp. as Seller and American Home

Mortgage Assets LLC as Purchaser. Under the terms of the Mortgage Loan Purchase

Agreement, the Purchaser was to issue mortgage-backed pass-through certificates pursuant to a

Pooling and Servicing Agreement (“PSA,” relevant portions attached as Exhibit B) to be dated

as of the Cut-Off Date of September 22, 2006.

15. The PSA obligates Plaintiff, as trustee, to ensure that the master servicer or designated

subservicer, such as AHMSI, complies with the terms of the PSA and standards of common

business practice, which include not violating any applicable laws.

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16. Both the Mortgage Loan Purchase Agreement and PSA specify the documents that are required

to be delivered from the Seller to the Trustee in connection with the conveyance of mortgage

loans prior to the Closing Date of September 1, 2006 to become an asset of the Trust.

17. Plaintiff has not alleged that the promissory note or any assignments were conveyed to the

Plaintiff prior to the Closing Date of September 1, 2006, as required by the PSA for a mortgage

loan to become an asset of the Trust.

18. Deutsche commenced this action against Ellen Ravitz on December 18, 2009.

19. After the Complaint was filed, MERS as nominee for American Brokers Conduit allegedly

executed an Assignment of Mortgage (“AOM,” attached as Exhibit C) in Duval County,

Florida, dated January 26, 2010, subsequent to Plaintiff’s filing of this action on December 18,

2009.

20. This purported AOM was recorded in Cook County as Document No. 1005426135 on February

23, 2010.

21. On information and belief: (a) the AOM was executed in Florida by employees of Lender

Processing Services, Inc. (“LPS”); and (b) those LPS employees who were never properly

appointed as officers of MERS.

22. On December 21, 2009, Plaintiff’s law firm, at the behest of its principal, sent Ravitz a debt

collection purporting to collect on the mortgage loan. See attached Exhibit D.

23. The letter was a written initial contact and afforded Ravitz the requisite 30-day validation

period pursuant to 15 U.S.C. §1692g.

24. The December 21, 2009 letter sent by Plaintiff’s law firm to Ravitz stated at Paragraph 3:

Federal law gives you thirty days after you receive this letter to dispute the validity of the debt or any part of it. If you don’t dispute it within that period, our office will assume that it’s valid. If you do dispute it by notifying our office in writing, we will, as required by the law, obtain and mail to you proof of the debt. And if, within the same period, you request in writing the name address of your original creditor, if the original creditor is different from the current creditor, our office will furnish

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that information too.

25. Paragraph 4 of the December 21, 2009 letter sent by Plaintiff’s law firm to Ravitz stated:

The law does not require our office to wait until the end of the thirty-day period before suing you to collect the debt or commencing any foreclosure action. If, however, you request proof of the debt or the name and address of the original creditor within that thirty-day period that begins with the receipt of this letter, the law requires our office to suspend our efforts (through litigation or otherwise) to collect the debt until we mail the requested information to you.

26. On or about January 12, 2010 and within 30 days of receipt of the December 21, 2009 letter,

Ravitz addressed a letter to Plaintiff’s law firm (attached as Exhibit E) that disputed the validity

of the debt and requested the name of the original creditor, as Ravitz owns and has refinanced

multiple properties on numerous occasions and was unsure to the identity of the original

creditor.

27. The January 12, 2010 letter Ravitz sent to Plaintiff’s law firm also requested a detailed

transaction history and explained that Ravitz had had significant problems communicating with

various loan processors during the loan period and was thus unsure whether payments were

properly computed and applied, whether the payments were timely applied, and whether late

fees were improperly assessed.

28. The January 12, 2010 letter was received by United States Postal Service Express Mail and was

received by Pierce on January 15, 2010.

29. Plaintiff never responded to Ravitz’s letter of January 12, 2010 requesting validation of the

alleged debt and information regarding the original creditor.

30. After receiving the letter, Deutsche continued its efforts to collect the debt and filed an affidavit

for service by publication just nine days later, on January 24, 2010.

31. A letter dated October 26, 2010 was sent to Ravitz from American Home Mortgage Servicing,

Inc., a Delaware corporation formerly known as AH Mortgage Acquisition Co., Inc.

(“AHMSI”), allegedly the subservicing agent of Plaintiff. See attached as Exhibit F.

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32. That letter unconscionably demanded payment of the amount of “deferred interest”

(presumably added to principal) amounting to $36,126.81 because of prior alleged screw-ups in

the servicing of Defendant’s loan for which Defendant had no responsibility.

33. On June 11, 2011, the Secretary of State of Illinois (“ILSOS”) revoked AHMSI’s qualification

to do business in Illinois as a foreign corporation. See ILSOS File No. 65913992.

DEFENDANT’S FIRST AFFIRMATIVE DEFENSE – PLAINTIFF LACKS STANDINGTO FORECLOSE

34. Defendant incorporates herein the provisions of Paragraphs 1 through 33 above as if restated at

length at this point.

35. Plaintiff is not entitled to enforce the Note as a holder, a holder in due course, a bona fide

owner of the Note, or in any other capacity.

36. Plaintiff cannot be the holder, or a holder in due course for that matter, because the copy of the

Note sought to be collected in this action is not a negotiable instrument within the meaning of

Article 3 of the Illinois Uniform Commercial Code, 810 ILCS 5/3-101 et seq.

37. 810 ILCS § 5/3-104, defining “negotiability” under UCC Article 3, reads in pertinent part:

(810 ILCS 5/3-104) (from Ch. 26, par. 3-104) Sec. 3-104. Negotiable instrument. (a) Except as provided in subsections (c) and (d), "negotiable instrument" means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it:(1) is payable to bearer or to order at the time it is issued or first comes into possession of a holder;(2) is payable on demand or at a definite time; and (3) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain (i) an undertaking or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral, or (iii) a waiver of the benefit of any law intended for the advantage or protection of any obligor.(b) "Instrument" means a negotiable instrument. (Source: P.A. 87-582; 87-1135.)

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38. The language found within the Note negates the “sum certain”/“fixed amount of money”

requirement for negotiability. The beginning of the Note states: “…THE PRINCIPAL

AMOUNT I MUST REPAY COULD BE LARGER THAN THE AMOUNT I ORIGINALLY

BORROWED, BUT NOT MORE THAN 125.000% OF THE ORIGINAL AMOUNT.”

Additionally, Note ¶1 refers to Note ¶4(G), which is titled “Changes in My unpaid Principal

Due to Negative Amortization or Accelerated Amortization.” Section 4(G) states that the

principal sum may grow beyond the original principal. Thus it is impossible to determine at

any time from the four corners of the Note (and any permitted ARM index) how much principal

is owing to the Note owner. In effect, the maker is allowed to borrow more principal instead of

paying interest on the Note currently. And interest is charged on those potential principal

increases under Note ¶4(G).

39. While the Note interest rate does change – ARM status alone doesn’t destroy negotiability – the

indeterminate rate of potential negative amortization – i.e., the potential growth of principal –

destroys the “sum certain” (i.e., “a fixed amount of money”) requirement to achieve negotiable

instrument status under 810 ILCS 5/3-104.

40. Furthermore, Note ¶12 imposes unpermitted “undertakings”, which include a duty to re-execute

loan documents upon demand of the Note owner, which also negates negotiability under UCC

Article 3.

41. Since the Note is not negotiable, Plaintiff must also show a recordable chain of valid Mortgage

assignments of the Mortgage to be entitled to foreclose the Mortgage under IMFL or otherwise.

42. Plaintiff has not pled nor shown (and cannot plead or show) a chain of contract assignments of

the Note from the original payee of the Note to Plaintiff.

43. Moreover, the Illinois Code of Civil Procedure at 735 ILCS 5/2-403 states that an assignee and

owner of a non-negotiable chose in action shall in his or her pleading on oath allege that he or

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she is the actual bona fide owner thereof, and set forth how and when he or she acquired title.

Such action is subject to defense or set-off.

44. Plaintiff has not alleged that it is the actual bona fide owner of the non-negotiable Note, and has

not set forth how and when it acquired title to the Note.

45. 810 ILCS § 5/1-201(21) defines a “Holder,” with respect to negotiable instruments, as “the

person in possession of a negotiable instrument that is payable either to bearer or to an

identified person that is the person in possession.” “Holder" with respect to a document of title

means the person in possession if the goods are deliverable to bearer or to the order of the

person in possession.

46. Even the original Lender recognizes, in Note ¶1, that subsequent Note owners take by

“transfer” rather than by negotiation and therefore are not UCC-defined “holders.” A

transferee can only become a “holder” through negotiation of a negotiable instrument.

47. Since the Note is not considered a negotiable instrument under 810 ILCS § 5/3-104, Plaintiff

cannot be the “holder” of the Note.

48. And since one cannot be a “holder in due course” unless one is first a “holder,” Plaintiff is not a

“holder in due course” of the Note as defined in 810 ILCS § 5/3-302. Therefore, Plaintiff may

not veil itself with the protections that the status of holder in due course affords.

49. Moreover, the loan at issue in this action is included in and subject to a PSA. Pursuant to the

PSA, American Home Mortgage Assets LLC as Purchaser was to issue mortgage-backed pass-

through certificates to be dated as of the “cut-off date” of September 22, 2006. See attached

Exhibit B.

50. The UCC at 810 ILCS § 5/1-302(a), “Variation by Agreement,” states:

(a) Except as otherwise provided in subsection (b) or elsewhere in the Uniform Commercial Code, the effect of provisions of the Uniform Commercial Code may be varied by agreement.

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51. The PSA varies the UCC’s requirements regarding the indorsement of negotiable instruments,

such that the negotiability provisions of the UCC do not apply to the Note in this action. The

PSA lists specific documents that are required to be delivered prior to the “closing date” of

September 1, 2006 from the Seller (American Home Mortgage Corp.) to the Trustee Plaintiff in

this case in connection with the conveyance of mortgage loans. At Section 2.01, the PSA

requires that for each mortgage loan, the Depositor must deposit with the Trustee “the original

Mortgage Note endorsed without recourse to the order of the Trustee or in blank AND showing

an unbroken chain of endorsements from the original payee thereof to the Person

endorsing it to the Trustee or in blank.” (Emphasis added.)

52. The purpose of requiring an unbroken chain of indorsements from the originator all the way to

the Trustee is to establish “bankruptcy remoteness,” in other words, the assets in the mortgage

securization vehicle (the Trust here) will not be affected by the bankruptcy or distress of the

originator. The chain of indorsements is essential to the Trust’s purpose.

53. Due to the existence of the PSA, the UCC does not apply to the Note in this action. An

indorsement in blank alone, without an unbroken chain of indorsements from the original payee

to the Trustee, does not satisfy the requirements of the PSA and cannot confer standing on the

Plaintiff.

54. Furthermore, “MERS” (as defined in the Mortgage) has no right or authority to assign the Note

or the Mortgage to Plaintiff. Therefore, the AOM executed by MERS to Plaintiff was

insufficient to transfer an interest in the Note to the Plaintiff.

55. MERS’s authority as “nominee” under the mortgage was insufficient to transfer an interest in

the Note to Plaintiff, because this right is outside the scope of MERS’s limited role as

“nominee.”

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56. MERS cannot be a “successor” to ABC, because ABC still maintains its corporate existence in

New York.

57. ABC filed its Chapter 11 bankruptcy petition on August 6, 2007 in Case No. 07-11051 (CSS),

in the United States Bankruptcy Court for the District of Delaware, which petition was

consolidated for convenience into the Chapter 11 bankruptcy petition of ABC’s parent

corporation, American Home Mortgage Holdings, Inc., a Delaware corporation (herein,

"AHMHI”), on August 6, 2007, Case No. 07-11047 (CSS).

58. Plaintiff has failed to show how and when MERS allegedly became a nominee of any “assign”

of ABC with respect to the Mortgage. Indeed, it is questionable how MERS can legally be

appointed an agent of an unidentified (and probably non-existent) assignee of ABC in 2006, the

year in which the Mortgage was executed and delivered.

59. The purported AOM does not identify any “assign” or “assigns” for whom MERS allegedly

acts as “nominee”. Indeed, unless authorized by the Bankruptcy Court in Delaware, execution

and recording of that Assignment of Mortgage might constitute a violation of the automatic

stay in the ABC/AHMHI Chapter 11 bankruptcy case described in Paragraph 55 above.

60. Additionally, upon information and belief, the AOM was executed by employees of LPS that

were never properly appointed officers of MERS. Therefore, the Assignment is invalid, if it

would have been valid otherwise.

WHEREFORE, Defendant prays that the Court dismiss Plaintiff’s Complaint, with prejudice,

and award Defendant her attorney’s fees and costs, and grant Defendant such other and further relief as

the Court deems equitable and just.

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DEFENDANT’S SECOND AFFIRMATIVEDEFENSE – UNCONSCIONABILITY



62. Defenses that are good against the originator of the Note are equally as valid against all

subsequent transferees of the Note, unless the subsequent transferee qualifies as a “holder in

due course.”

63. Where defenses are raised against a note, the burden is on the plaintiff to show that he or she is

a holder in due course, in order to effectively cut off such defenses.

64. Therefore, all defenses that are good against ABC, as the originator of the Note, are valid

against Plaintiff, because Plaintiff claims to be an assignee of the Note and has failed to show

that it qualifies as a “holder in due course.”

65. The provisions of Note ¶4(K) are unconscionable, as exemplified by the letter dated October

26, 2010, to Defendant from AHMSI, allegedly the subservicing agent of Plaintiff. See

attached as Exhibit F. That letter unconscionably demanded payment of the amount of

“deferred interest” (presumably added to principal) amounting to $36,126.81 because of prior

alleged screw-ups in the servicing of Defendant’s loan for which Defendant had no

responsibility.

66. Additionally, the provisions of Note ¶4(K) are unconscionable, because these terms are so one

sided that it oppressed Ravitz into executing a Note that she could not afford.

67. These terms misrepresent the interest rate that the borrower is actually being charged as well as

the monstrous “minimum payment” that will ensue after the principal balance reaches 125

percent of the original loan balance.


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DEFENDANT’S THIRD AFFIRMATIVE DEFENSE – PLAINTIFF VIOLATED THE ILLINOIS CONSUMER FRAUD AND DECEPTIVE PRACTICES ACT



69. As aforementioned, Plaintiff’s action is subject to all the defenses that the borrower could have

asserted had the action been brought by the original lender.

70. At all times relevant to this litigation, the Illinois “Consumer Fraud Act”, 815 ILCS, Act 505

(the “Act”) was in effect. Section 2 of the Act reads as follows:

(815 ILCS 505/2) (from Ch. 121 1/2, par. 262) Sec. 2. Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the "Uniform Deceptive Trade Practices Act", approved August 5, 1965, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby. In construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5 (a) of the Federal Trade Commission Act. (Source: P.A. 78-904.)

71. Plaintiff, as trustee for the Trust, engaged in unfair or deceptive acts or practices by the use of

deception, fraud, false pretenses, false promises, misrepresentations and the concealment,

suppression or omission of material facts concerning the terms of the loan evidenced by the

Note.

72. The Note contains provisions that subject the borrower to “negative amortization,” and when

negative amortization is taken into account, Defendant was effectively charged a greater

interest rate on the original principal borrowed than the interest rate set forth in the Note.


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principal, the loan is automatically recast as a fully amortizing loan. The resulting payment

would be far higher than the payment the borrower had been previously making.

74. Plaintiff failed to adequately disclose the aforementioned risks to confuse Defendant and

deprive her of adequately knowing the consequences of signing such a Note. Essentially,

Plaintiff downplayed the risks of the Note to entice Defendant to enter into the Adjustable Rate

Note loan agreement.

75. Plaintiff seeks to enforce the terms of the Note in the course of conduct involving trade or

commerce.

76. As a result of this deception, Defendant was not properly informed about the terms of the loan

and these terms interfered with borrower’s ability to pay the loan.

77. Such conduct violates the Act as both unfair and deceptive, and Plaintiff is liable for such

unfair and deceptive acts and practices.




DEFENDANT’S FOURTH AFFIRMATIVE DEFENSE –FAILURE OF CONDITION PRECEDENT

78. Defendant incorporates herein the provisions of Paragraphs 1 through 77 above as if fully set

forth herein.

79. The December 21, 2009 letter sent by Plaintiff’s counsel, to Ravitz was a written initial contact

and afforded Ravitz the requisite 30-day validation period pursuant to 15 U.S.C. §1692g.


Ravitz addressed a letter to Pierce, as Plaintiff’s agent, that disputed the validity of the debt,

requested the name of the original creditor, and requested a detailed transaction history

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regarding her loan payments.

81. Deutsche received Ravitz’s letter on January 15, 2010.

82. Deutsche failed to respond to Ravitz’s January 12, 2010 letter.

83. Deutsche violated 15 U.S.C. §1692g by failing to suspend its efforts to collect the debt without

having mailed Ravitz the requested validation. It continued its efforts to collect the debt, by

filing an affidavit for service by publication just nine days later, on January 24, 2010 and

proceeding with the foreclosure action.

WHEREFORE, Defendant Ellen Ravitz prays that this Honorable Court dismiss Plaintiff’s

Complaint to Foreclose Mortgage with prejudice and grant such other relief as the Court deems just

and equitable.

DEFENDANT’S FIFTH AFFIRMATIVE DEFENSE –UNCLEAN HANDS


forth herein.

85. Plaintiff was not entitled to file this foreclosure complaint because it was not free of inequitable

conduct relative to the controversy.

86. Plaintiff was barred by the doctrine of “unclean hands” from the foreclosure that it seeks in

connection with the subject transaction because of its failure to comply with material terms of

the mortgage and note and comply with loan servicing requirements.

87. Moreover, Pierce and Associates, acting on the direction of its Plaintiff as its principal, failed to

suspend its collection efforts after receiving a debt validation request from Ravitz. Plaintiff

was required by the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et. seq., to suspend all

collection efforts, including this lawsuit, until such debt was provided to Ravitz. Not only did

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Plaintiff fail to suspend its collection efforts, Plaintiff filed suit before sending the collection

letter to Ravitz.

WHEREFORE, Defendant Ellen Ravitz prays that this Honorable Court dismiss Plaintiff’s

Complaint to Foreclose Mortgage with prejudice and grant such other relief as the Court deems just

and equitable.

DEFENDANT’S FIRST COUNTERCLAIM AGAINST PLAINTIFF -- CONSUMER FRAUD


forth herein.

89. On information and belief:

(a) Plaintiff is the Trustee and Wells Fargo Bank, National Association (“WFB”), is the master

servicer for American Home Mortgage Assets Trust 2006-5 (“the Trust”).

(b) AHMSI is among the one or more subservicers for the Trust and allegedly the subservicer

of the loan sought to be collected in this litigation.

(c) AHMSI (formerly known as AH Mortgage Acquisition Co., Inc.) acquired its subservicing

rights for Trust (under WFB as master servicer) as the successful bidder for the servicing

platform of debtors AHMHI and its affiliated debtors, all as set forth in In re American

Home Mortgage Holdings, Inc., et al., as Debtors; DB Structured Products, Inc., Appellant

vs. AHMHI, et al., Appellees, USBC, D. Delaware, 402 B.R. 87 (2009). To confuse and

mislead borrowers, AH Mortgage Acquisition Co., Inc. changed its name to American

Home Mortgage Servicing, Inc. – the same name as one of the debtors in the AHMHI

consolidated Chapter 11 proceeding.

90. On information and belief, on or about 2009, as a result of the successful bid, AHMSI took

over the servicing of Ravitz’s loan, but Ravitz was unaware of this change because she did not

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receive any notice of such change.

91. On information and belief, AHMSI was aware of the legal requirement that it must send a letter

notifying the borrower of the change of servicer.

92. As a result of the lack of notification, Ravitz sent her mortgage payments to the previous,

incorrect servicer, which did not credit her payments or transmit the payment information to

AHMSI for proper crediting.

93. Consequently, Ravitz incurred late fees and penalty charges, which increased the balance of her

loan.

94. Plaintiff, through its agent AHMSI, fraudulently and purposefully failed to inform Ravitz of the

servicer change and Ravitz incurred damage thereby.

95. Plaintiff and the Trust are responsible for deceptive acts and practices of WFB and AHMSI in

the servicing of loans allegedly owned by the Trust, as described above.


award her actual and punitive damages in accordance with Section 10a of the Act (815 ILCS 505/10a),

award her attorney’s fees and costs, and grant to her such other and further relief as the Court deems

equitable and just.

DEFENDANT’S SECOND COUNTERCLAIM AGAINST PLAINTIFF –FOR DECLARATORY JUDGMENT


forth herein.

97. This counterclaim is brought pursuant to the provisions of Section 2-701 of the Declaratory

Judgments Act, 735 ILCS 5/2-701.

98. Defendant has demonstrated above that the Note sought to be collected in this litigation is a

non-negotiable instrument and that the Plaintiff must establish a proper chain of contract

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assignments of the Note and a proper chain of Mortgage assignments from each alleged owner

of the Note sought to be foreclosed in this action.

99. Such declaration would materially expedite the disposition of this litigation.

WHEREFORE, Defendant respectfully prays for a declaratory judgment that the Note sought

to be collected in this litigation is a non-negotiable instrument and that the Plaintiff must establish a

proper chain of contract assignments of the Note and a proper chain of Mortgage assignments from

each alleged owner of the Note sought to be foreclosed in this action.

DEFENDANT’S THIRD COUNTERCLAIM AGAINST PLAINTIFF – VIOLATIONS OF FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. § 1692 et. seq.


forth herein.

101. Deutsche is responsible for the violations of Fair Debt Collection Practices Act, 15 U.S.C.

§1692 et. Seq. (“FDCPA”) committed by Deutsche as principal and Pierce as its agent.

102. Jurisdiction is proper pursuant to 15 U.S.C. §1692k, which provides that an action under the

FDCPA may be brought in a United States district court or any other court of competent

jurisdiction.

103. This counterclaim was timely filed within one year from the date on which the violation

occurred as provided in 15 U.S.C. §1692k.

104. Ravitz is a “consumer” as that term is defined by 15 U.S.C. §1692a(3).

105. On information and belief, the loan is in default for an unknown sum of money. Plaintiff has

not “acquired” the loan because the PSA’s indorsement requirements have not been met and the

AOM that purports to assign the mortgage to Plaintiff is invalid. Thus, Plaintiff is a “debt

collector” as that term is defined by the Act

106. Ravitz’s mortgage was primarily for personal, family or household purposes and is therefore a

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“debt” as that term is defined by 15 U.S.C. §1692a(5).

107. The December 21, 2009 letter sent to Ravitz by Plaintiff’s law firm was a communication in an

attempt to collect a debt as that term is defined by 15 U.S.C. §1629a(2).

108. The December 21, 2009 letter was a written initial contact and afforded Ravitz the requisite 30-

day validation period pursuant to 15 U.S.C. §1692g.


Ravitz addressed a letter to Plaintiff’s law firm that disputed the validity of the debt, requested

the name of the original creditor, and requested a detailed transaction history of her loan.

110. The January 12, 2010 letter was received by United States Postal Service Express Mail and was

received by Plaintiff’s law firm on January 15, 2010.

111. Plantiff never responded to Ravitz’s letter of January 12, 2010 requesting validation of the

alleged debt and information regarding the original creditor.

112. By refusing to validate the debt, Plaintiff violated 15 U.S.C.§1692g.

113. Plaintiff further violated 15 U.S.C. §1692g by failing to suspend its efforts to collect the debt

without having mailed the requested validation to Ravitz.

114. After receiving Ravitz’s debt validation letter on January 15, 2010, Plaintiff continued its

efforts to collect the debt in violation of the FDCPA. In fact, Plaintiff filed an affidavit for

service by publication just nine days later, on January 24, 2010.

115. Ravitz has suffered actual damages as a result of the FDCPA violations by Plaintiff in the form

of anxiety and emotional distress from being forced to defend this foreclosure action, as well as

court costs, attorney’s fees, and a negative impact on her credit.

116. As a result of the violations of the FDCPA by Deutsche, Deutsche is liable to Ravitz for her

actual damages, statutory damages in an amount up to $1,000.00, plus reasonable attorney’s

fees and costs of litigation.

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WHEREFORE, Counter-Plaintiff Ellen Ravitz respectfully prays that judgment be entered

against Deutsche National Bank Trust Company as Trustee for American Home Mortgage Assets Trust

2006-5 Mortgage-Backed Pass-Through Certificates, Series, 2006-5 for the following:

A. Actual damages pursuant to 15 U.S.C. §1692k;

B. Statutory damages pursuant to 15 U.S.C. § 1692k;

C. Litigation costs and reasonable attorney's fees pursuant to 15 U.S.C. § 1692k;

D. For such other and further relief as may be just and proper.

DEFENDANT’S FOURTH COUNTERCLAIM AGAINST PLAINTIFF –VIOLATION OF ILLINOIS CONSUMER FRAUD AND DECEPTIVE PRACTICES ACT


forth herein.

118. As aforementioned, Plaintiff’s action is subject to all the defenses that the borrower could have

asserted had the action been brought by the original lender.

119. At all times relevant to this litigation, the Illinois “Consumer Fraud Act”, 815 ILCS, Act 505

(the “Act”) was in effect. Section 2 of the Act reads as follows:

(815 ILCS 505/2) (from Ch. 121 1/2, par. 262) Sec. 2. Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the "Uniform Deceptive Trade Practices Act", approved August 5, 1965, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby. In construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5 (a) of the Federal Trade Commission Act. (Source: P.A. 78-904.)

120. AHMSI, Plaintiff’s subservicing agent, as well as ABC, the originator of the loan, engaged in

unfair or deceptive acts or practices by the use of deception, fraud, false pretenses, false

promises, misrepresentations and the concealment, suppression or omission of material facts

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concerning the terms of the loan evidenced by the Note.

121. The Note contains provisions that subject the borrower to “negative amortization,” and when

negative amortization is taken into account, Defendant was effectively charged a greater

interest rate on the original principal borrowed than the interest rate set forth in the Note.




123. On information and belief, Plaintiff and/or its agents failed to adequately disclose the

aforementioned risks in an attempt to confuse Defendant and deprive her of adequately

knowing the consequences of signing such a Note. Essentially, Plaintiff and/or its agents

downplayed the risks of the ARM Note to entice Defendant to enter into the Adjustable Rate



commerce.

125. This deception included not properly informing Ravitz of the terms of the loan and imposing

terms that interfered with borrower’s ability to pay the loan.

126. Such conduct violates the Act as both unfair and deceptive, and Plaintiff is liable for such

unfair and deceptive acts and practices.

WHEREFORE, Counter-Plaintiff, Ellen Ravitz, respectfully prays that judgment be entered


2006-5 Mortgage-Backed Pass-Through Certificates, Series, 2006-5, on her ICFDPA counterclaim and

award an amount of monetary damages and such other or further relief as this Court may deem just and

proper.

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DEFENDANT’S FIFTH COUNTERCLAIM AGAINST PLAINTIFF – BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING


forth herein.

128. In every contract there is the general presumption that the parties to a contract will deal with

each other honestly, fairly, and in good faith, so as to not destroy the right of the other party or

parties to receive the benefits of the contract.

129. AHMSI, Plaintiff’s subservicing agent, and ABC, the originator, breached the implied covenant

of good faith and fair dealing by engaging in unfair or deceptive acts concerning the terms of

the loan evidenced by the Note.

130. Through the acts of its agents, Plaintiff subjected the borrower to “negative amortization,” and

effectively charged a greater interest rate on the original principal borrowed than the interest

rate set forth in the Note.




132. On information and belief, Plaintiff and/or its agents failed to adequately disclose the

aforementioned risks in an attempt to confuse Defendant and deprive her of adequately

knowing the consequences of signing such a Note. Essentially, Plaintiff and/or its agents

downplayed the risks of the ARM Note to entice Defendant to enter into the Adjustable Rate



commerce.

134. This deception included not properly informing Ravitz of the terms of the loan and imposing

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terms that interfered with borrower’s ability to pay the loan.



2006-5 Mortgage-Backed Pass-Through Certificates, Series, 2006-5, on her counterclaim for Breach of

the Implied Covenant of Good Faith and Fair Dealing and award an amount of monetary damages and

such other or further relief as this Court may deem just and proper.

DEFENDANT’S SIXTH COUNTERCLAIM AGAINST PLAINTIFF – SET-OFF

135. Defendant incorporates herein the provisions of Paragraphs 1 through 134 above as if restated

at length at this point.

136. Plaintiff’s liability to the Counter-Plaintiff for the above counterclaims constitutes a set-off to

the amount claimed by Plaintiff in the foreclosure complaint.



2006-5 Mortgage-Backed Pass-Through Certificates, Series, 2006-5, on her counterclaim for set-off.

Respectfully submitted,

ELLEN M. RAVITZ

By: _______________________________________One of her attorneys

Sandra M. Emerson Matthew C. SwensonEmerson Law Firm, LLC715 Lake Street, Suite 420Oak Park, Il 60301Atty. 48408(708) 660-9190

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VERIFICATION

Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil

Procedure, the undersigned Defendant Ellen M. Ravitz certifies that the statements set forth in the

foregoing DEFENDANT ELLEN RAVITZ’S THIRD AMENDED VERIFIED ANSWER,

AFFIRMATIVE DEFENSES AND COUNTER-CLAIMS TO PLAINTIFF’S COMPLAINT TO

FORECLOSE MORTGAGE are true and correct, except as to matters therein stated to be on

information and belief, and as to such matters the undersigned certifies as aforesaid that she verify

believes the same to be true.

Ellen M. Ravitz

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defendants' answer, ads & ccs

Documents

american brokers

written initial

federal courts

mortgaged

permitted

detailed transaction

federal trade

uniform commercial