sample answer foreclosure defense new jersey

Earl S. David, Esq.Attorney At Law The Law Center1091 River Ave, Unit 17Lakewood NJ 08701Tel. 908-907-0953Attorney for Defendant(s)

-----------------------------------------------------------XFORECLOSURE BANK SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION

MERCER COUNTY Plaintiff,

DOCKET NO.: XXXXXX--against-- CIVIL ACTION

ANSWER, DEFENSES AND COUNTERCLAIMSJOHN 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. Defendants admit that Mr. DOE executed a note on Feb. 13, 2007 as set forth in

paragraph 1.

2. Defendants admit the allegations set forth in paragraph 2.

2.1 Defendants admit the allegations set forth in paragraph 2.1.

3. Defendant deny the allegations in paragraph 3 and demand strict proof thereof.

4. Defendants admit that Plaintiff’s Schedule “A” describes the property in question.

5. Defendants neither admit nor deny the allegations set forth in paragraph 5.


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.




AS TO THE SECOND COUNT:



3. Defendants deny the allegations that plaintiff is deprived of the subject premises

and demand strict proof thereof.

AS TO THE THIRD COUNT:


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

expired.

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


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


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


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


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


(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


(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


(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


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


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


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


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


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


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


18. Plaintiff is not in compliance with FDCPA due to an improper verification required

by 15 USC 1692g(b).

AS AND FOR A NINETEENTH, SEPARATE AND COMPLETE


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


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


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


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


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


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


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


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


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


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


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. Defendant repeats and re-alleges all paragraphs above as if fully set forth herein.

2. 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. Defendants repeats and re alleges all paragraphs above as if fully set forth herein.

2. 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. Dismissing the Complaint in its entirety with prejudice;

B. Awarding actual and statutory damages, attorney's fees and costs;

C. Declaratory and injunctive relief rescinding and/or reforming the agreement; and

D. Granting such other relief as this Honorable Court deems equitable and just.

DATED: April 10, 2023 __________________________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 COURTAND 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 if any

are willfully false, I am subject to punishment.

Dated: August 3, 2011

_________________________

sample answer foreclosure defense new jersey

Documents