What to do With Affirmative DefensesAs the 2nd part of your answer to the foreclosure lawsuit, you will list the affirmative defenses that apply to your case that may help you delay, dismiss or even win the lawsuit. Each case is different and some of the defenses listed below may not apply to you and each state has different requirements so be sure to meet with a qualified lawyer or do research on your own to confirm which defenses to use and how to state them to comply with your state's specific requirements. Use the information below as a general guide to get started then modify as needed and combine with your foreclosure answer.Be sure to review our discussion of foreclosure defenses before deciding which affirmative defenses apply to you.
Learn About "Foreclosure Defenses"
Sample Affirmative Defenses
AFFIRMATIVE DEFENSES
1. As a first affirmative defense, defendant states that the complaint fails to state a cause of action.
2. As a second affirmative defense, defendant states that plaintiff has failed to comply with all mandatory conditions precedent and contractual obligations required to file suit.
3. As a third affirmative defense, defendant states that performance under the contract is waived as a result of plaintiff’s actions and failure to provide original “wet ink” versions of the promissory note, mortgage and all relevant assignments.
4. As a fourth affirmative defense, defendant states that the loans documents relied upon by plaintiff are void for lack of compliance with RESPA, 12 USC 2601, et seq.
5. As an fifth affirmative defense, defendant states that the loan documents relied upon by plaintiff are void for lack of compliance with Regulation Z of the Truth in Lending Act, 12 CFR 226.1, et seq.
6. As a sixth affirmative defense, defendant states that the loan documents relied upon by plaintiff are void for the failure to comply with the post closing disclosure requirements of 12 CFR 226.9 et seq.
7. As a seventh affirmative defense, defendant states that plaintiff’s claims are subject to the doctrine of illegality for the use of fraudulent information and documents prepared after the alleged date indicated on the documents and not providing true and correct original information regarding execution of required documents.
8. As an eighth affirmative defense, defendant states that plaintiff’s actions constitute breach of fiduciary duty for failing to disclose how and when it allegedly obtained defendants note and security agreement and in failing to provide proper and timely notice of said purchase or assignment.
9. As a ninth affirmative defense, defendant states that plaintiff breached the loan documents by improperly purchasing excessive and unnecessary property and casualty insurance despite sufficient coverage in place at all pertinent times.
10. As a tenth affirmative defense, defendant states that plaintiff’s actions constituted unfair and deceptive trade practices.
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via US Mail this __ day of ___________ to NAME AND ADDRESS OF PLAINTIFF’S LAWYER . (SEND ORIGINAL TO CLERK OF COURT AND ONE COPY TO PLAINTIFFS LAWYER)
Dated this ____ th day of ______2011 By: ______________________ NAME OF DEFENDANT
Add a 2nd signature line if more than one defendant (like husband and wife) is named in the lawsuit.
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