IN THE COUNTY COURT IN AND FOR PALM BEACH COUNTY, FLORIDA

CITY WALK CONDO. ASSOC., INC., : Plaintiff / Counterclaim Defendant, : v. : MICHAEL BELL, ET AL., : Defendants. _ ______________/ Case No. 502011CC004792XXXXSB

ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS

ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM NOW COME Michael Bell, et al. (Defendants herein), who hereby answer Plaintiffs Complaint, provide affirmative defenses, and enter counterclaims. Defendants state as follows: ANSWER 1. As to paragraphs 1, 2, and 3, Defendants ADMIT this is an action to foreclose a lien, that Plaintiff is a Florida corporation, and that Defendants Michael and Susan Bell are over the age of 18. 2. Defendants DENY all remaining claims for want of knowledge; Defendants demand strict proof of all allegations. AFFIRMATIVE DEFENSES 3. Fla. R. Civ. P. 1.110(d) reads as follows: Affirmative Defenses. In pleading to a preceding pleading a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. 4. An affirmative defense is a defense which admits pro arguendo the cause of action, but avoids liability, in whole or in part, by alleging excuse, justification, or other matter negating or limiting liability. St. Paul Mercury Ins. Co. v. Coucher, 837 So.2d 483 (Fla. App.5.Dist., 2002). In support thereof,

PLAINTIFF FAILS TO ABIDE BY THE BASIC RULES OF PLEADING AND LACKS STANDING AND AUTHORITY TO FORECLOSE LIEN 5. Fla. R. Civ. Pro. 1.110(b) requires of a complaint a short and plain statement of the grounds upon which the Courts jurisdiction depends, the ultimate facts, and a demand for judgment 6. Here, Plaintiff offers no jurisdictional statement. 7. Even still, Fla. R. Civ. P. 1.130(a) reads as follows: Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleading, shall be incorporated in or attached to the pleadings. 8. In its Complaint, Plaintiff references a Warranty Deed, a Declaration of Covenants for City Walk at Pineapple Grove, and a Notice of Delinquency and Demand for Payment; none of these documents are attached to the Complaint, in violation of Fla. R. Civ. P. 1.130(a). 9. No document signed by either Defendant has been attached to the Complaint. 10. Plaintiff offers no substantive evidence of any relationship with Defendants, and will not be able to prove standing or authority to foreclose their alleged lien. FAILURE TO ACCOUNT / ACCORD AND SATISFACTION 11. Plaintiff has failed to properly evidence and account for amounts, payments, credits, debits, and damages allegedly owed; this is a further violation of Fla.R.Civ.P. 1.130(a). 12. Plaintiff attached to its Complaint a Summary of Amount Owed (Exh. B), but said Summary, in and of itself, is blatantly insufficient. 13. Pursuant Fla. Stat. 718.116, Defendants hereby request a Certificate stating all assessments and other moneys allegedly owed Plaintiff, as well as a showing as to the validity of any and all assessments and the basis of each. Plaintiff has 15 days from the date of filing this Answer to comply with this Request. 14. Defendants believe and aver that some alternative form of discharging the alleged debt exists or that the alleged debt has actually been discharged.

FAILURE TO ABIDE BY CONTRACTUAL CONDITIONS PRECEDENT, FEDERAL RULES / UNCLEAN HANDS / EQUITABLE ESTOPPEL 15. Upon knowledge and belief, Defendants are entitled to certain protections provided by a Declaration of Covenants entered into by Plaintiff. 16. Plaintiff failed to comply with contractual conditions precedent and with its affirmative duty to, for example, provide Defendants the Notice of Default to which they were entitled. 17. Plaintiff has also failed to comply with 15 U.S.C. 1692 of the Fair Debt and Collection Practices Act (FDCPA). 18. These failures amount to bad faith, for which reason Plaintiff should be estopped from pursuing foreclosure. FAILURE OF SERVICE OF PROCESS 19. Service of process on Defendant was defective, in that the process server failed to note the time and date of service on the process. 20. This is a clear violation of Fla. Stat. 48.031(5), Fla. R. Civ. P. 1070(e), and Vidal v. Suntrust Bank, 41
So.2d 401 (Fla. 4th DCA 2010), which deals squarely with this issue.

ASSUMPTION OF RISK 21. Pursuant Fla. Stat. 768.81, Defendants aver that, if Plaintiff had exercised fiduciary responsibility,
ordinary care, due diligence, and general common sense, it would have recognized the risks involved the potential impact of the alleged non-payment.

22. Plaintiff could have avoided any alleged loss by foregoing any such transaction. Defendants reserve the right to amend their answer, affirmative defenses, and counterclaims, based on any newly discovered issue that may arise. COUNTERCLAIMS Pursuant Fla. R. Civ. P. 1.170, Defendants state the following: VIOLATION OF FAIR DEBT & COLLECTION PRACTICES ACT (FDCPA) 23. Defendants are consumers and the alleged debt meets the standard of consumer debt as defined by Fla. Stat. 559.55(1) and 15 U.S.C. 1692(a). 24. Plaintiff/Counterclaim Defendant has engaged in consumer collection conduct which violates Fla. Stat. 559.72(5), (6), (9), (16) and 15 U.S.C. 1692(f), by disclosing false information to people with no legitimate need, by not disclosing the fact that the debt was known to be reasonably disputed, by threatening enforcement without legal right, and by mailing communication calculated to embarrass Defendant.

25. Plaintiff/Counterclaim Defendants acts are in bad faith, in that they are wrongful and deceptive. 26. Defendant has sustained damage as a result of Plaintiff/Counterclaim Defendants conduct; Defendant seeks to recover actual and statutory damages pursuant Fla. Stat. 559.77 and 15 U.S.C. 1692(k). DEFAMATION / LIBEL 27. Plaintiff/Counterclaim Defendant has knowingly made false and defamatory statement(s) to a third party with negligence and/or malice, by which Defendant has suffered harm as a result. BREACH OF CONTRACT 28. Supposing pro arguendo that Plaintiff/Counterclaim Defendant can produce a valid contract between itself and Defendant, Plaintiff/Counterclaim Defendant would have likely breached such, being as Plaintiff/Counterclaim Defendant is pursuing moneys not actually owed; damages have resulted. JURY DEMAND 29. Defendants hereby demand a trial by jury. WHEREFORE Defendants pray that Plaintiffs Complaint be dismissed. WHEREFORE Defendants request the Court grant costs, attorneys fees, interest, and any other relief it finds appropriate. WHEREFORE Defendants request this Court abate proceedings until Plaintiff has strictly complied with the provisions of the FDCPA, and has notified the Court of such. WHEREFORE, alternatively, Defendants demand a trial by jury to determine the issues stated herein and a determination of liability, damages, fees and costs.

___________________________ Joann M. Hennessey, Esq. Attorney for Defendants Law Offices of Joann M. Hennessey, PL 620 NE 76th Street Miami, FL 33138 T: 305 200 5115 / 877 900 5115 F: 305 200 3664 C: 305 710 8366 joann@lojmh.com

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was sent by ordinary U.S. mail to the Palm Beach Clerk of Courts, 205 N. Dixie Hgwy., W. Palm Beach, FL and to Larry E. Schner, Esq. 350 Camino Gardens Blvd. #202, Boca Raton, FL 33432 on this _____ day of July, 2011.

___________________________ Joann M. Hennessey, Esq. Attorney for Defendants Law Offices of Joann M. Hennessey, PL