CHAPTER 7 - Answers, Affirmative Defenses & Counterclaims

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ANSWERS, AFFIRMATIVE DEFENSES & COUNTERCLAIMS


ANSWER: In a civil case, an answer is the defendant's written response to the plaintiff's complaint. An answer is generally required to be filed within twenty to thirty days of Service of Process of the complaint upon the defendant.

AFFIRMATIVE DEFENSES: An Affirmative Defense is generally part of an answer to a charge or complaint in which a defendant takes the offense and responds to the allegations with his own charges against the plaintiff for the plaintiff’s perceived wrongdoing.

 

SAMPLE PLEADING FOR SECOND AFFIRMATIVE DEFENSE

FAILURE OF CONTRACTUAL CONDITION PRECEDENT

NO NOTICE OF DEFAULT OR ACCELERATION


Plaintiff failed to provide defendant with a Notice of Default and Intent to Accelerate as required by and/or that complies with Paragraph 22 of the subject mortgage.As a result defendant has been denied a good faith opportunity, pursuant to the mortgage and servicing obligations of the plaintiff and/or the true and correct servicer, assignee or assignor, to avoid acceleration as well as this action to foreclose.

COUNTERCLAIM: A counterclaim is defined as a retaliatory counter demand or claim by the defendant against the plaintiff included in the defendant's answer and intending to setoff and/or reduce the amount of the plaintiff's original claim against the defendant It is not merely an answer or denial of the plaintiff's allegation, but asserts a separate and independent cause of action in favor of the defendant against the plaintiff.


SAMPLE PLEADING FOR COUNTERCLAIM

COUNT IV:

Breach of Obligations of Good Faith and Fair Dealing

 

Defendant reasserts and alleges, as his statement of facts, the Affirmative Defense No. 2 as stated above and paragraphs 3 through 18, 21 and 22 of Count I of his counterclaim.

33. Plaintiff owes defendant a contractual duty under the specific terms of the parties’ mortgage contract to act in good faith and to deal fairly with defendant by complying with the FHA special default loan servicing regulations, 24 C.F.R. Part 203 Subpart C, prior to filing this foreclosure action.

34. Plaintiff materially breached its contractual duties of good faith and fair dealing imposed by the specific terms of the parties’ mortgage contract as described hereinabove proximately resulting in damage to defendant as described hereinabove.

WHEREFORE, Defendant demands judgment against the plaintiff for his damages, for an award of attorney’s fees and for all other relief to which defendant proves entitled.

 

LEARN MORE IN THE

DO IT YOURSELF FORECLOSURE DEFENSE MANUAL.

1 Comment

  • posted by don simon | Friday, 23 April 2010 08:53

    I am a fla. resident in foreclosure and have a background in law but not in foreclosure law and I am not licensed in fla.. Which of your books would work best for me.

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