Find out why the average homeowner generally does not have the resources available to defend against foreclosure without an attorney. Ch. Determine If Your Home Foreclosure is Eligible to be Defended. This entitlement to prosecute a claim in Florida courts rest exclusively in those persons granted by substantive law, the power to enforce the claim. In Florida, most HOAs are governed by a declaration of Covenants, Conditions, and Restrictions (CC&Rs). Consequently, defendant argues that the action must be dismissed. See, Edelstein v. Peninsular Lumber Supply Co., 247 So. DEFENDANT'S AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO VERIFIED COMPLAINT FOR FORECLOSURE OF MORTGAGE AND DEFENDANT'S COUNTERCLAIMS AND ADDITIONAL PARTY CLAIMS The Defendant, by and through her undersigned counsel hereby files this Amended Answer and Affirmative Defenses in response to Plaintiff's Complaint for Foreclosure of Defendants assert that Plaintiff comes to court with unclean hands and is prohibited by reason thereof from obtaining the equitable relief of foreclosure from this court. Lets say your friend lets you borrow $20.00. In a substantial number of cases, foreclosing plaintiffs (who are typically assignees, rather than the original lenders) are unable to produce the alleged assignment documents pursuant to which they purportedly acquired an interest in the loan. This is a sample document related to a specific set of facts and circumstances and should not be used or relied upon if any foreclosure, deficiency judgment, short sale or any other real estate matter. Plaintiff does not have standing to bring this action. The person who serves the borrower is called the process server.. 3. Adding Affirmative Defenses When Responding to a Foreclosure Summons Phone: (407) 476-4372 Orlando Foreclosure Attorney Orlando, Florida 32801 Foreclosure Attorney Michael Stites Speak to an Attorney: Relax. Also, the HOA needs to demonstrate that all values are correct and have ground provided by the CC&Rs. However, proving fraud is not easy to do because the elements of fraud must be proven with particularity. In order to establish unclean hands, the homeowner must show either a fraudulent or illegal transaction or any unrighteous, unconscious, or oppressive conduct by the party seeking foreclosure. Blum v. Deutsche Bank Tr. All forms are available in Word format. Citigroup Mortg. 2d 721 (Fla. Dist. The Mortgage clearly states that, MERS is the mortgagee. With mortgagee being synonymous with lender, this statement acts to establish MERS as the original lender, rendering them a necessary and indispensable party to this action. 2023 Empire State Legal Forms, Inc. - All Rights Reserved. Even though receiving a notice that an HOA began a foreclosure against you is not a positive thing, the ideal approach is to stay calm and not waste time with uncertainty. Remember the friend who you owed $20.00 and some other guy came up asking for payment? pursuant to the promissory note and or mortgage. The general affirmative defenses in Fla. R. Civ. This is a collection of 22 possible affirmative defenses that may be used to defend a foreclosure action. Failure to bring a foreclosure lawsuit within 5 years from the date of default will result in dismissal. There was no Assignment of Mortgage attached to the Complaint which alleges to confer any legal rights in the Note and Mortgage. Under Florida law, a homeowner's answer to a foreclosure complaint may include the affirmative defense that the plaintiff lacks legal standing to obtain a judgment of foreclosure. Notably, financial institutions have also been proactive and creative in crafting legal arguments to overcome such affirmative defenses. Lenders should also keep a copy of the notice of default letter in their loan file as evidence of substantial compliance. Sample Affirmative Defenses and counterclaim - Free download as Word Doc (.doc), PDF File (.pdf), Text File (.txt) or read online for free. Read: Lost Notes in Florida Foreclosure Cases: Banks Must Prove Their Case With Valid Legal Documents, Bank Failed To Properly Assign The Mortgage Or Endorse The Note. Email: legal@raygarcialaw.com. that are jointly owned and maintained by the communitys homeowners, who are responsible for all associated costs. For more here, see: Conditions a Bank Must Satisfy Before Filing a Foreclosure in Florida, Bank Fails To Provide Proper Service Of Process Of The Lawsuit. Nor can Defendant, as it does in its twenty-second and thirty-first defenses, state that Plaintiff . 2d 556, 57 (Fla. 4th DCA 1984) (quoting Shields v. Barrow, 58 U.S. (17 How.) Box 23028, Tampa, FL 33623, and faxed [239-261-3659], and mailed Ashley D. Lupo, Esq., Roetzel & Andress, LPA, 850 Park Shore Dr., Fl 3, Naples, FL 34103. Usually, mortgage lenders are required by the loan documents to give borrowers notice of default as a condition precedent to bring a foreclosure lawsuit. Accordingly, lenders should avoid unscrupulous practices, overreaching, concealment, trickery, or other unconscientious conduct.. An indispensable party is one whose interest in the controversy makes it impossible to completely adjudicate the matter without affecting either that partys interest or the interests of another party in the action. on the note and mortgage, interest from June 1, 2010, late charges, all costs of, collection including title search expenses for ascertaining necessary parties to, this actions, unpaid taxes, insurance premiums, accumulated late charges and, foreclosure of the mortgage have been performed or have occurred and, therefore the allegations are expressly, directly and explicitly denied and, regarding plaintiffs obligations concerning its attorney fees and therefore the, demanded thereon. 1987), appeal after remand, 526 So.2d 772 (Fla. 3d DCA 1988). This time should be used to work out a plan with your lender if you are planning on keeping your home. 1701), lenders are required to advise homeowners of loan counseling options offered by the U.S. Department of Housing and Urban Development (HUD). Stated differently, each monthly payment that the borrower fails to pay restarts the 5-year clock. 2006-HE6, MORTGAGE PASS-THROUGH Case No. There are more issues that can be raised to defend a Florida foreclosure lawsuit, like usury and duress. 2d 1316 (Fla. Dist. 4th DCA 1975), Do not sell or share my personal information. attached to plaintiffs complaint as Exhibits. 5. 14850 SW 26th Street, Suite 204. The amount due can vary depending on if the bank has filed foreclosure (thus, incurring attorney fees, costs, and additional interest expenses) or if it has accelerated the loan. ALAN D. SACKRIN, ESQ. However, theres nothing which evidences any transfer to the Plaintiff. 3d 58, 60 (Fla. 4th DCA 2016) (Where there are conditions precedent to filing the suit, [a] plaintiff must also prove that it has complied with them.). an HOA failed to record the lien properly. 3d 170, 173 (Fla. 4th DCA 2012). denied and strict proof is demanded thereon. Oftentimes, borrowers engage in technical defaults, like quit claiming an interest in the property to a family member, or they make late payments. Assn, 79 So. Under Florida Statute 559.715, banks are required to provide written notice to the homeowner each time the mortgage is transferred. Affirmative Defenses to plaintiffs Complaint, and in support thereof states the following: Defendants expressly, directly and explicitly deny any right to foreclose in its. . Assn v. J.P. Morgan Mortg. Defendant. Statute of limitations, statute of repose, and laches are affirmative defenses which (Rel.1-3/05 Pub.1366) Understanding the Statutes of Limitations and Repose3 . 1. Luckily, lenders only have to show that they substantially complied with the requirements. Your friend has a standing claim to the $20.00 that you owe him, meaning your friend is owed the money by you. Homeowners answering a foreclosure summons should consider substantial and powerful affirmative defenses to foreclosure that have evolved during course of America's prolonged foreclosure crisis. Defenses based on missing mortgage documents and/or assignments are far from the only defense tactics available to foreclosure defendants. 1971). Access from your Country was disabled by the administrator. Unclean hands is an equitable defense that may be used to prevent a bank from foreclosure. Start here to find foreclosure lawyers near you. SOUTHERN DISTRICT OF FLORIDA CASE NO. If you are the site owner (or you manage this site), please whitelist your IP or if you think this block is an error please open a support ticket and make sure to include the block details (displayed in the box below), so we can assist you in troubleshooting the issue. Affirmative Defenses to Foreclosure Based on Missing Notes and/or Lack of Standing: In increasing numbers, homeowners have filed answers to foreclosure complaints, thus delaying, and in some instances, stopping judgments from being entered. And if the HOA begins a foreclosure, don't panic; you might have a defense to the action, like: the HOA charged you too much or charged you unreasonable fees. Nava basically says yes he can sue on my behalf. Standing requires that the party prosecuting the action have a sufficient stake in the outcome and that the party bringing the claim be recognized in the law as being a real party in interest entitled to bring the claim. P. 1.110 are not addressed here, but should Based on this, a lender, or the holder of the note and mortgage, must ensure that it is coming to the court with clean hands. 559.72(9) provides (in pertinent part): Prohibited practices generally. ANSWER: Mrs. Dunn admits that the mortgage is in default . (Affirmative defenses should be placed after your answers to the allegations). Hence, all associated homeowners need to pay monthly fees (dues) and assessments to the HOA, an acronym for homeowners association, as a way to cover all costs. These specific rules govern the community, including fees/assessment policy (e.g., what type of fees an HOA is allowed to charge residents). Free Previews available. Foreclosure against the [homeowner] because it is threatening to take a legal action that it cannot legally take and used a false misrepresentation or deception to collect a debt that . In case an HOA prematurely starts a foreclosure, the affected party can raise the failure to comply with state statutory requirements as a defense in court. If the bank files the foreclosure lawsuit after five years have passed, then the borrower can assert a limitations defense asking that the case be dismissed as a matter of law. Contact us now Free Consultation. foreclosure costs, late charges, advances, and expenses incurred by the Plaintiff as a result of the default. Admit that it is an action to foreclose property in Marion County, Florida. Your use of this website constitutes acceptance of the Terms of Use, Supplemental Terms, Privacy Policy and Cookie Policy. The courts will want your reasoning why you deny an allegation. 702.01. If you are the site owner (or you manage this site), please whitelist your IP or if you think this block is an error please open a support ticket and make sure to include the block details (displayed in the box below), so we can assist you in troubleshooting the issue. ([T]he statute of limitations on the balance under the note and mortgage would not continue to run after an involuntary dismissal, and thus the mortgagee would not be barred by the statute of limitations from filing a successive foreclosure action premised on a separate and distinct default.). Typically, a development in Florida has common areas (e.g., pools, playgrounds, etc.) Florida is a judicial foreclosure state, which means that the bank must go to court and receive court approval before foreclosing on a home. If these documents are not correct, or not provided, then the borrower has specific legal remedies as defined in the statute. Workers Compensation Law & Construction Injuries, FAQs for Florida Ancillary Administration, Problems with Florida Summary Administrations, Amended Answer and Affirmative Defenses Foreclosure. Here, longstanding principles of fairness (equity) are applied to the situation. Conditions a Bank Must Satisfy Before Filing a Foreclosure in Florida, defective or insufficient service of process, Lost Notes in Florida Foreclosure Cases: Banks Must Prove Their Case With Valid Legal Documents, Florida Foreclosure Appeal on The Issue of Standing; Victory Against Bank of America. %PDF-1.3 All rights reserved. Liberty Home Equity Sols., Inc. v. Raulston, 206 So. colonel frank o'sullivan interview; beverly hills high school football 2d 721 (Fla. Dist. Deny that plaintiff is entitled to recover its attorney fees. Since Kumar did not have insurance they were deemed the insurer. Kumar had not received payment from Nava and was not carrying insurance for the items being sold. The disclosures must be given at least 72 hours before closing on the loan. They should have an actual claim to the home they are trying to foreclose on. Unclean Hands Doctrine (Unconscionability), In Florida, since mortgage foreclosure lawsuits are considered equitable proceedings, (See Cross v. Federal Natl Mtg. 15 U.S.C. Because many plaintiffs have no direct relationship with the original lender, they are sometimes unable to produce the . 3d 351, 352 (Fla. 1st DCA 2014) (A plaintiff alleging standing as a holder must prove it is a holder of the note and mortgage both as of the time of trial and also that the (original) plaintiff had standing as of the time the foreclosure complaint was filed.). Kumar Corp. v Nopal Lines, Ltd was a court case that was ruled in back in 1985. Jimerson Birr welcomes inquiries from the media and do our best to respond to deadlines. UnderRule 1.130, the lender must attach both the mortgage and the promissory note to the pleading asserting its foreclosure cause of action (the complaint). A bank seeking to foreclose a home in Florida must provide evidence that it owns or holds the promissory note and mortgage to prove standing. What Are Statutory Damages Under the FCCPA and the FDCPA? We provide attorneys and you with the state-specific forms that are correct and valid. Above is only one part of the first affirmative defense but I will break down what it is saying piece by piece. For example, in a foreclosure complaint the plaintiff will charge that you haven't been paying your mortgage and they're entitled to foreclose because of that. Unfortunately, these technical defaults become the basis for some foreclosure lawsuits on the theory that the banks interest is being impaired. 3. Co. v. Wooten, 37 So. The failure to follow any of these federal laws, rules, or regulations by the mortgage lender can become a valid federal statutory foreclosure defense for the borrower in a Florida foreclosure lawsuit. By Marc Rapaport | Submitted On July 20, 2009. After you answer each numbered allegation you will have the option to use case law, previous court rulings, and local statues to point out flaws in their foreclosure summons. Track Case Changes Download Document Print Document On January 13, 2014 a Real Prop Comm Foreclosure =/>$250,000 case was filed . PLAINTIFF IS NOT THE REAL PARTY IN INTEREST. FAILURE TO COMPLY WITH APPLICABLE HUD SINGLE FAMILY DEFAULT LOAN SERVICES REQUIREMENTS/FAILURE TO COMPLY WITH CONDITIONS PRECEDENT: FAILURE OF GOOD FAITH AND FAIR DEALING: UNFAIR AND UNACCEPTABLE LOAN SERVICING, One affirmative defense we can use for when the lender lost the note (from our. The Mortgage clearly states that, MERS is the mortgagee. With mortgagee being synonymous with lender, this statement acts to establish MERS as the original lender, rendering them a necessary and indispensable party to this action. Adam Smith Enterprises, Inc. v. Barnes, 539 So.2d 549 (Fla. 2d DCA 1989). The server must initial the copies given (served) to the borrower. 4. IN THE CIRCUIT COURT OF THE In Criminal and Civil law, an Affirmative defense is a fact or set of facts that if proven by the defendant, nullifies or mitigates the legal consequences of the defendant's otherwise unlawful conduct. 1. Plaintiff, Lack of Standing If the bank fails to meet that legal notice requirement, then the defendant can request that the foreclosure action be dismissed. Defendants claims Plaintiffs non-compliance with the conditions precedent to foreclosure imposed on the plaintiff pursuant to applicable pooling and servicing agreement. Neither the exhibits attached to Plaintiffs Complaint nor the allegations of the Complaint are sufficient to demonstrate standing. Pre-suit requirements Plaintiff's actions, millions of homes have been foreclosed on or are in foreclosure. Copyright 2023 AboutFloridaLaw.com. All Rights Reserved. Potential Defenses Against HOA Foreclosure in Florida When an HOA Is Not Authorized by CC&Rs to Foreclose Commonly, any CC&R governing an HOA must contain certain provisions to provide how. What If The Bank Files A Procedurally Flawed Complaint? Ct. App. mjk funeral home obituaries; san jose state university graduate programs deadlines Men umschalten. To begin, there is nothing attached to the Complaint which establishes that Plaintiff, WELLS BANKER, AS SUCCESSOR TRUSTEE UNDER SUPERSTAR MORTGAGE FUNDING TRUST, SERIES 2010-2, possessed the requisite legal standing at the inception of this foreclosure action. Based on this, lenders, or the holder of the note and mortgage, should be sure to review the loan documents and provide borrowers with the required notice of default before filing a foreclosure lawsuit, or risk having the foreclosure lawsuit dismissed. To increase chances of success in foreclosure, lenders should be aware of what these defenses are and how to overcome them. Although the specific requirements vary in each loan agreement, lenders are usually required to provide borrowers with notice that they are behind in their loan payments, an opportunity to cure the default by making a payment or performing some sort of action within a stated period of time (usually not less than 30 days), and notice that if they do not cure the default in the stated period of time, the lender has the right to accelerate the loan. So how does Kumar Corp. V Nopal Lines help our case? You will also want to reference Florida statutory laws and the laws of civil procedures with your other affirmative defense arguments. The general rule in equity is that all persons materially interested, either legally or beneficial, in the subject-matter of the suit, must be made parties either as complainants or defendants, so that a complete decree may be binding upon all parties. Nopal argued that Kumar, Drafting an affirmative defense is a bit more complicated because you need to be. Experienced Fort Lauderdale Lawyers representing clients throughout South Florida including the cities of Sunrise, Wilton Manors, Hallandale Beach (Main Office), Oakland Park, Lauderdale Lakes, Lauderhill, Plantation, Pompano Beach, Tamarac, Coconut Creek. Attacking The Validity Of The Mortgage. Id. This person has legal duties underRule 1.070and the Florida Statutes, including Florida Statutes48.20,48.031(5). For example, if a homeowner doesnt raise an affirmative in their answer and thereafter asserts it in response to a summary judgment motion brought by the bank then the homeowner may not be able to raise the defense at the hearing (however, a homeowner can always seek to amend their answer to raise an affirmative defense but dont wait until the hearing to do so). All Rights Reserved. For example, some courts in Florida, New York, New Jersey, California and Illinois have permitted foreclosing plaintiffs to foreclose, even without the original note, by providing competent evidence of the assignments, payment history, default, and statements pertaining to the circumstances surrounding the note's current unavailability. Another common situation involves HOA foreclosure resulting from unreasonable charges. The particular facts surrounding the mortgagors (borrower) actions must be evaluated to determine if the security of the bank has been impaired. Regardless of the situation, a lien must be properly recorded in the county records to be considered valid. 2100 East Hallandale Beach Blvd./Suite 200 Assn, 359 So.2d 464 (Fla. 4th DCA 1978)), one of the most common equitable defenses in Florida jurisprudence is the doctrine of unclean hands. If the borrower (defendant) can provide admissible evidence that the lender (plaintiff) was involved in illegal or improper activity, which may or may not include fraud, then the action has been filed with unclean hands.. x%9)&s`]_g=^,zjlguDQ$EOo{miog{?/ooO])k[P*%t{%kX?gd7q?~MmW?l{,?g9gAr-~G~?m-?U~i{mgoKWr:enX>Z3d.1,o/6(K[)+dn~c=tmYlO)n~\5+&96iY#go{,pXj9kYZo}{vy%C}ZD}txopv R2R2i3Fox{`Cg?}=#%L|=~_kmL~zkKYcou2trijln5Yi:&.};j{nO\h5:tg23d>IP%*vBx. See, Florida Rules of Procedure 1.115(e). Thus, the Plaintiff was incorrect in stating that all parties to this action are properly before this Court. 40 In fact, the Florida Supreme Court has held the . 2. To succeed on this defense, the borrower must show that it relied on the plaintiffs misconduct, and suffered an injury. The lenders' and mortgage servicers' sloppy record keeping and abusive practices can be of benefit to homeowners trying to defend against foreclosure. Real Estate Settlement Procedures Act (RESPA): This federal law requires specific documents to be delivered to a borrower as part of the closing and after closing. DEFENDANTS ROBERT V. OAKLEYS ANSWER AND AFFIRMATIVE DEFENSES COMES NOW, Defendant, Robert V. Oakley, and for their Answer and Affirmative Defenses to plaintiffs Complaint, and in support thereof states the following: 1. For instance, there is a 30-day notice of default that must be given before the bank starts the foreclosure process. "The elements of equitable estoppel are (1) a representation as to a material fact that is contrary to a later-asserted position, (2) reliance on that representation, and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon." As a matter of equity, this Court should refuse to foreclose this mortgage because acceleration of the note would be inequitable, unjust, and the circumstances of this case would render acceleration unconscionable. All rights reserved. Fla. Stat. The bottom line is that a homeowner who is served with a foreclosure summons should file an answer with the court in a timely manner. The general rule in equity is that all persons materially interested, either legally or beneficial, in the subject-, To begin, there is nothing attached to the Complaint which establishes that Plaintiff, WELLS BANKER, AS SUCCESSOR TRUSTEE UNDER SUPERSTAR MORTGAGE FUNDING TRUST, SERIES 2010-, DISMISSAL OF COUNT TO REESTABLISH PROMISSORY NOTE. Regardless of your situation, if you are facing foreclosure, it is important to contact a Florida foreclosure defense lawyer. 1. : 2011-0793-CA-O. Standing is important because it is what the lender should have in order to foreclose. Some of the applicable programs here include the Federal Truth In Lending (TILA), which allows for recission, as well as: Home Ownership Equity Protection Act (HOEPA): Here, if the first mortgage lien has a high interest rate (the threshold amount varies depending on the loan amount) then it is a high rate loan covered by HOEPA. You would probably want this random person to show you solid evidence that you owe them the $20.00 instead of your friend. Kumar sued Nopal (the carrier) to recover the monetary loss of the stolen items. (The state version of HOEPA, the Florida Fair Lending Act, is found in Florida Statutes 494.001 et seq.). We recommend and urge you to consult with an experienced lawyer for professional advice as each case is unique. Other states have similar notice requirements. Most mortgages include a condition that the bank notify the homeowner that the loan is in default prior to initiating a foreclosure lawsuit. Loan Tr. If either of these documents is not attached to the document, or if they are incomplete in any way, then the procedural rules have not been met. Piccolo, 453 So. He or she must do things that include: If these procedural requirements for service of process in a foreclosure lawsuit are not followed, then the defendant can move the court to quash the service and dismiss the entire case based upon defective or insufficient service of process. The longstanding legal axiom underlying these decisions is quite clear: a transfer of the mortgage without the debt is a nullity, and no interest is assigned unless the underlying note has been assigned. The clear language in the mortgage names MERS as a mortgagee; this would, at the very least, create and ambiguity pertaining to a material fact upon which Plaintiffs claim is based. Another defense in foreclosure lawsuits is that the foreclosing plaintiff came to the court with unclean hands. Bartram v. U.S. Bank Nat. They used a transport company (Nopal) to transport the TV sets and parts to Venezuela. Sackrin & Tolchinsky, P.A. The case is taken to the Florida Supreme Court and Kumar won because the suit was endorsed by Nava. Admit that copies of a Mortgage and Note are. Id. In Florida, foreclosure defenses (for residential foreclosures) can be categorized into three different arguments. While the foreclosure is proceeding through the court system, the homeowner will have a right to raise legal defenses to the bank's foreclosure. al.. M If the statute of limitations is a viable defense be sure to plead it in the answer, as it may be waived if not so pled. The Plaintiff does not prove that it owns, holds, or has the right to enforce the mortgage. Mortgage loan servicers are required to apply payments and charges to a mortgage loan in compliance with federal law 12 U.S.C. 607.1502 (1) and 607.1501 (a), (g) and (h). Under the terms of HOEPA, if its provisions are not followed to the letter by the lender, then the borrower has a defense and has a right to rescind the loan. 713, has a lien on the improved real property for any money that is owed to . et. Many state legislatures have enacted mandatory notice requirements that lenders are required to follow prior to commencing a mortgage foreclosure proceeding. In case someone fails to pay the required fees/assessments, a lien will be attached to the property. Kumar Corp. v Norpal Lines, Ltd, et. Neither the exhibits attached to Plaintiffs Complaint nor the allegations of the Complaint are sufficient to demonstrate standing. al., 462 So.2d 1178, (FLA. 3d DCA 1985). The defenses described herein may not be applicable to every home foreclosure case, you should seek the advice of a licensed attorney in your area for more information about your specific case. The Plaintiff does not prove that it owns, holds, or has the right to enforce the mortgage. 1957). foreclosure . Standing. The specific requirements that lenders must follow to provide a borrower with notice of default are found in the loan documents or loan modification agreement. A homeowner may also allege, as an affirmative defense to foreclosure, that any alleged assignment of the mortgage was cone without compliance with the mandatory notice provisions imposed upon lenders under federal law to effectuate an assignment of a residential mortgage. Therefore, we strongly recommend talking with a Florida real estate lawyer to learn your rights. Attorney Home > Foreclosure Research > Foreclosure: A Simple Understanding >, Created by Attorney Michael Stites & contributing editor Jared Speck. UnderFlorida Statute 95.11(2)(c), all mortgage foreclosure lawsuits must be filed within five (5) years. How can it help me stop foreclosure? entirety and strict proof is demanded thereon. Call us today at 954-807-1361 or contact our . Florida law is constantlychanging. However, there are others including, incorrect legal description in the mortgage (there is case law here), estoppel, unclean hands, and rescission. IT IS HEREBY CERTIFIED that on October 14, 2011, a true and correct copy of the foregoing was faxed [813-221-9171], and mailed to Ryan Weeks, Esq., Albertelli Law, P.O. The plaintiff must also demonstrate that it holds the note and mortgage at the time of the trial. alan@hallandalelaw.com Where did this person get a standing claim for the $20.00 you owe your friend? We are applying the same concept to this affirmative defense.