saalimited.com. court form... · web viewmoves without initially winning – e.g. if they can’t...

Posted 12/21/09 at 02:17 AM Reply with quote #1

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TACTICAL CONSIDERATIONS IN FIGHTING FORECLOSURE:

http://ssgoldstar.websitetoolbox.com/post/Tactical-Considerations-in-fighting-foreclosure-4088663

A) Send FDCPA Dispute and Debt Validation within 30 days of Summons and Complaint.

* Failure of plaintiff to properly validate will give you both an affirmative defense (to prevent Summary Judgment) and present you with set off against judgment, and perhaps injunction relief. Google Case law for appellate rulings to support your position. This can be used in addition to your states Credit Collections act with more teeth.

B) Send Qualified Written Response during litigation to opposing counsel.

*Failure to respond within 60 days creates TILA affirmative defense (to prevent Summary Judgment), set off against possible judgment, in addition to the TILA/RESPA violations.

C) Initial Response to Summons and Complaint can be held off with a Motion for Extension of Time, Motion to Quash or Motion to Dismiss within the 20/30 response period. Set hearing with Motion for Extension as some appellate courts rules that it doesn’t toll (extend) response periods when motion is moved within the response period.

D) Request initial production of note. Standing requires servicing agent (bank acting as collection agency) to have mortgage assigned to them -or- via equitable assignment (note is a bearer instrument with blank endorsement). Check endorsement/allonge on note to see if its stamped pay to the order w/endorsements.

E) Compel production of note for “D” if plaintiff balks at request, or, if they claim lost note, have them prove they are entitled to re-establish by your states laws.

F) Hearing on Motion to Dismiss – Circuit courts usually will deny initial Motion even with strong evidence. However, use this as a “teaching moment” to the court. State case law where appellate courts found reversible error when this has occurred. This will tell judge your serious as they fear being overruled by appellate.

G) Answer/Affirmative Defenses/Counterclaims will be required 20 days from denial of motion to dismiss. Continue to build case of material issues of fact that will prevent summary judgment short circuiting your case. If the issue shows the bank has a dozen bishops to testify, and you can produce 1 liar, then the issue is still at question.

H) Appellate courts can be used to overturn circuit court rulings. Use them, and ask the circuit court to issue an injunction while appellate reviews the issues.

I) If your judge is pro lender use Federal Courts for damages for FDCPA/TILA issues. They have a narrower focus of the law.

J) Bankruptcy courts (Ch 13) using an adversary proceeding can be used wisely to avoid (Declare mortgage security invalid and become an unsecured claim). They also have a narrower focus of the law.

Generally: Prepare to win or at least educate the courts on each of your motions, one small battle at a time. Don’t expect courts to give you a piece of real estate free and clear, but if you play chess know you can check/checkmate there

http://ssgoldstar.websitetoolbox.com/post/Tactical-Considerations-in-fighting-foreclosure-4088663

moves without initially winning – e.g. if they can’t prosecute the case in (10 months Florida) the court can and will dismiss the case with prejudice, then you can obtain quiet title.

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Sara Posted 12/23/09 at 09:41 PM Reply with quote #2

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this is excellent information!

I think so many people get overwhelmed and scared at the onset of foreclosure. They get so wound up with emotions that they can't seem to understand they have to follow the process.

S

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Ann Posted 12/25/09 at 04:22 PM Reply with quote #3

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IN THE CIRCUIT COURT OF THE XXXXX JUDICIAL CIRCUIT, IN AND FOR MIAMI DADE COUNTY, FLORIDA

CASE NO:

SELECT PORTFOLIO SERVICING, INC.,

Plaintiff(s)

VS.

SMART

, et al.,

Defendant(s)

__________________________________/

DEFENDANT SMART’S MOTION FOR ENLARGEMENT OF TIME

The Defendant, Smart, moves for an Extension of Time to Respond to Plaintiff’s Complaint and as grounds therefore state:

1. The Plaintiff alleges they do not possess the requisite documentation or

promissory note, to maintain the instant action.

2.. The Defendant disputes the amounts allege to be due and owning to the Plaintiff..

3. Defendant, Smart, requests an extension of time to evaluate this

claim, retain legal representation, attempt to work out a Loan Modification

with the Lender, (according to the Lender this may take up to 120 days) , in order to stay in our home, and file an appropriate response, or counterclaim.

4. Defendant has filed certain Demands for disclosures and written verifications

pursuant to Federal Law needed in order to properly respond to the Complaint.

WHEREFORE, Defendants respectfully request this honorable Court to enter an Order granting this motion.

CERTIFICATE OF SERVICE

I HEREBY certify the a true and correct copy of the foregoing has been furnished U.S. Mail to (Plaintiff lawyer) this ______, December ,2009.

Respectfully submitted,

_____________________________

Defendant’s Name, Address

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Prose Litigant files this Qualify Written Request together with Motion for Time Extension to put himself in Discovery process to prevent the Plaintiff to short cut the case by filing their Motion for Default or Summary Judgment. It is improper for the Court to issue Summary Judgment when the Defendant is still in discovery.

IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT, IN AND DADE COUNTY, FLORIDA

CASE NO:

SELECT PORTFOLIO SERVICING, INC.,

Plaintiff(s)

VS.

SMART

, et al.,

Defendant(s)

__________________________________/

QUALIFY WRITTEN REQUEST

The Defendant hereby requests the Plaintiff information about the fees, costs and escrow accounting of my loan. This demand is a Qualified written Request (QWR), pursuant to the Real Estate Settlement and Procedures Act (RESPA),12 U.S.C. § 2605(e).

The documents requesteed should be mailed to (Defendant address)

The information I request as part of this QWR is as follows:

1) The current interest rate on this account.

2) The adjustment dates of each interest rate adjustment on this account, with the corresponding

adjustment amount.

3) Who the current holder of the mortgage is, and their mailing address for process of service, along with a current telephone number.

4) Who the current holder of the note is, and their mailing address for process of service, alongwith a current telephone number.

5) The date that the current holder acquired this mortgage and from whom it was acquired from.

6) The date your firm began servicing the loan.

7) The previous servicer of the loan.

8) The monthly principal and interest payments, and monthly escrow payments received from the date of the loan’s closing to the date of this QWR;

9) A complete payment history of how those payments were applied, including the amounts applied to principal, interest, escrow, and other charges;

10) The total amount due of any unpaid principal, interest, escrow charges, and other charges due as of the date of this letter. Please list separately and identify each amount due;

11) The total amount of principal paid on the account up to the date of this letter;

12) The payment dates, purposes of payment and recipient of any and all foreclosure fees and costs that have been charged to my account;

13) A breakdown of the current escrow charges showing how it is calculated and the reasons for any increase within the last 24 months;

14) A breakdown of any shortage, deficiency or surplus in the escrow account over the past three years.

15) A breakdown of all charges accrued on the account since the date of closing, that includes but is not limited by, late charges, appraisal fees, property inspection fees, forced placed insurance charges, legal fees, and recoverable corporate advances.

16) A statement indicating which covenants of the mortgage and/or note authorize each charge.

17) Please provide a copy of all appraisals, property inspections, and risk assessments completed for this account.

18) Please provide a copy of all trust agreements pertaining to this account.

19) Please provide a copy of all servicing agreements (master, sub-servicing, contingency, specialty, and back-up) pertaining to this account.

20) Please provide a copy of all written loss-mitigation rules and work-out procedures for this account.

21) Please provide a copy of all manuals pertaining to the servicing of this account.

22) Please provide a copy of the LSAMS Transaction History Report for this account, and include a description of all fee codes.

23) If this account is registered with MERS, state its MIN number.

24) A statement indicating the amount to pay this loan off in full as February 1, 2009.

I hereby dispute all late fees, charges, inspection fees, property appraisal fees, forced placed insurance charges, legal fees, and corporate advances charged to this account. Additionally, I believe my account is in error. Pursuant to 12 U.S.C. § 2605(e), you are hereby notified that placing any negative coding on my credit report before responding to this letter is a violation of RESPA and the FCRA. Your organization will

be subject to civil liability if negative coding appears for this account before a response to this QWR isissued to me.

Please provide me confirmation that you have received this QWR within 20 days, as required under 12 U.S.C. § 2605(e). Thereafter, please respond to these questions within 60 days of receipt of this letter, also as required under 12 U.S.C. § 2605(e).

_________________

Defendant Name/Address


The undersigned certifies that the foregoing was sent on May _____, 2009 via

U.S. Mail to: PLAINTIFF ATTORNEY, Dumb & Dummer LLP 12345 Main Street

Ocala FL 34567(555)

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IN THE CIRCUIT COURT OF THE XXXX JUDICIAL CIRCUIT

IN AND FOR FLORIDA

CIVIL ACTION

CASE NO.

US BANK AS TRUSTEE

Plaintiff,

v.

JOHN SMITH

Defendants.

________________________________________/

DEFENDANTS MOTION TO DISMISS COMPLAINT WITH PREJUDICE

Comes now the Defendants John and Arlen Smith moves the Court to dismiss Plaintiff’s complaint, pursuant to Rules 1.130, 1.210(a) and 1.140(b)(6), Florida Civil

Procedures , and in support thereof states as follows:

1. THE SMITH’s home, encumbered by a mortgage and promissory note made to and held by FIRST MERIDIAN MORTGAGE, is the property at issue in this foreclosure action.

2. The Plaintiff, US BANK as Trustee. and not FIRST MERIDIAN MORTGAGE filed this foreclosure action allegedly as owner and holder of the note.

3. US Bank as Trustee also brings a count for reestablishment of promissory note pursuant to section 673.3091, Florida Statutes.

CONDITION PRECEDENT

In the Definitions of the subject mortgage, Paragraph (B) defines:

a. “Borrower” as JOHN SMITH and ARLENE SMITH Husband and Wife, and

b. “Lender” as FIRST MERIDIAN MORTGAGE

Plaintiff Fails to establish Cause of Action- Plaintiff Fail to State a Claim

Upon Which Relief May Be Granted; Plaintiff Lacks of Standing to Sue;

Lack of Subject Matter Jurisdiction

4. Plaintiff lacks of Subject Matter Jurisdiction. The Plaintiff’s fails to attach any

documents to identify who or what US bank as Trustee . is; nor can

Defendant determine from the Plaintiff’s complaint upon what facts the Plaintiff is claiming to be the real party in interest with standing to pursue this foreclosure action on a promissory note which is required by the Florida Rules of Civil Procedures1.140

(b)1. Plaintiff did not attach the Notes proving Plaintiff’s ownership of any debt against the Defendant. Therefore This Court lacks of subject matter jurisdiction to proceed. Subject matter jurisdiction has never been established on the record. The jurisdictional question can be raised at anytime and can never be time barred . Declaire v. Yohanan, 453 So. 2d 375 (Fla 1984). The Court should dismiss this Complaint pursuant to Rules 1.210(a) and 1.140(7) of the Florida Rules

and Procedure because no promissory note attached to the Complaint evidencing that

Plaintiff is the true owner of the note or the existence of the promissory note . Therefore Plaintiff is not the real party in interest , the debt does not exist, the Complaint should be dismiss due to Plaintiff’s Lacks of Subject Matter Jurisdiction

5. Lacks of Standing to Sue .Plaintiff’s complaint fails contain any sufficient facts to establish who the Plaintiff is or the Plaintiff’s relationship to the Defendant, Anh Kaul, or the Plaintiff’s relationship or connection to the claim for foreclosure of a promissory note, including the failure to identify the date of the alleged assignment of the mortgage and note to the plaintiff. The Plaintiff alleges in paragraph 4 of its complaint it is “the owner and holder of the subject note and mortgage”. These allegations are directly conflicting with the mortgage and other documents attached to the complaint thereby rendering the complaint insufficient to identify who the Plaintiff is or what fact establish the standing of Plaintiff to file and pursue this foreclosure.

6. Plaintiff filed defective pleadings with exhibits that were legally insufficient to

support the complaints, to show standing or to invoke the subject matter jurisdiction of

the court. Florida Rules of Civil Procedure rule 1.130(a) required that standing must be established by pleadings and exhibits attached thereto at the date of filing the action, and requires the Plaintiff to attach to its Complaints copies of all bonds, notes, bills of exchange contracts, accounts , or documents upon which action may be brought. Plaintiff failed to attached sufficient documentation to supports its pleading in this case.

7. No original documentation, negotiable instruments, notes or mortgage, pursuant to Florida Rules of Court evidence code 90.953(1)(2), and (3) was placed in the case file at the time the complaint was filed. Duplicate of negotiable instruments are not admissible.

90.953. Admissibility of duplicates – A duplicate is admissible to the same extent

as original , unless:

(1) The document or writing is a negotiable instrument as defined in s. 673.1041,

a security as defined in s. 678.1021, or any other writing that evidences a right to

the payment of the money, is not itself a security agreement or lease, and is of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment.

(2) A genuine question is raised about the authenticity of the original or any other document or writing.

(3) It is unfair, under the circumstance, to admit the duplicate in lieu of the original.

8. Plaintiff fails to produce the Original of the Note or any other copy to support of

its claims to be the owner and holder of the Note. This fact alone deprives plaintiff of

standing pursuant to Florida Rules of Civil Procedures rules 1.113(a) and 1.210(a). Standing must be established by the initial pleading and may not rely on subsequent filing as its basis.

9. No document was attached or filed with the Complaint showing that the Plaintiff meets any of the criteria of Florida Rules of Civil Procedure rule 1.210(a) which would authorize the Plaintiff to pursue this action as a nominee or stand-in or for the true owner(s) and/or holder(s) of the note. Plaintiff is therefore barred from doing so.

10. In this case, the Plaintiff’s allegation of material facts claiming it is the owner of the subject note are inconsistent with the documents attached to the Complaint. When exihibits are inconsistent with the Plaintiff’s allegations of material facts as to real party in interest, such allegations cancel each other out. Fladell v. Palm Beach County Canvassing Board, 772 So. 2d 1240 (Fla 2000), Greenwald v. Triple D Properties, Inc. 424 So. 2d 185 (Fla 4.th DCA 1983), Costa Bella Development Corp.vs Costa Development Corp, 441 So. 2d 114

(Fla. 3rd DCA 1993).

11. Failure to state a Cause of Action. Failure to state a sufficient claim.

Because Plaintiff cannot prove that it now own the note, and failed to establish in

its complaint that it owned or held the note and mortgage at the commencement of this

action. Plaintiff failed to state a sufficient claim and failed to state a cause of Action..

Plaintiff failed to establish itself as the real party in interest . This fact renders the complaint objectionable. Greenwald v. Triple D. Properties, Inc. 424 So. 2d 185, 187 (Fla. 4th DCA 1983). Plaintiff fails to identify what powers it has to foreclose on the note and mortgages

In Florida, an agent does not have a cause of action against a party allegedly breaching a contract with its principal. The principal must authorize the agent to bring the suit. Media

Placement v. Combined Broad. Inc 638 So. 2d 105-106, (Fla 3rd DCA 1994).

12. In Florida, the prosecution of a residential mortgage foreclosure must be by the owner and holder of the mortgage and the note. Your Construction Center Inc v. Gross, 316 So. 2d 596 (Fl. 4th DCA 1975). The Plaintiff fails to establish its possession or ownership of the Mortgage and Note, and; therefore cannot ensure that the Defendants, John and Arlen Smith , are adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Therefore, Plaintiff is unable to meet the requirement of Florida Statute Section 673.3091.

Re-Establishment of Note

Defendant also moves to Dismiss Plaintiff’s Count II Re-Establishment of Note

13. Plaintiff fails to bring forward the “Original Promissory Note:, the subject matter of this action, and having failed to meet requirement of Florida Statute 71.001 Re-establishment of paper, records and files. DLJ Mortgage Capital, Inc v. D. Scott Heinman Trustee . Case no. 07CA 015829-1 In Admiralty DCA 13 Hillsborough County Fla. Nov 2008. Judge Franz Gomez denies the Plaintiff Motion to re-establish the Promissory Note. The Statute requires the Plaintiff to attach a substantial copy of that lost or destroyed; the Plaintiff has to name in the Complaint all parties interested for or against such the re-establishment. In this case, the Plaintiff has to name all note holders, assignees, assignor of the lost Promissory note and Plaintiff failed to prove that it is the owner of the lost note. The Plaintiff, US Bank as Trustee, is not the owner name on the note.

14. Since US BANK as Trustee , fails to allege the date it took assignment of the note and mortgage or the date the note and mortgage were lost or destroyed, it is not possible to determine if in fact Plaintiff was entitled to enforce the note and mortgage when they were lost. Though the right to enforce a promissory note and mortgage once in the possession of an assignor can be assigned though the note and mortgage be lost (National Loan Invest. v. Joymar Ass., 767 So.2d 549 (Fla. 3rd DCA 2000)), if another party further up the assignment chain lost the note and mortgage, Plaintiff can not show it is entitled to foreclose unless it specifically alleges facts that establish that it or its assignor had the right to enforce the note though it was lost prior to the assignment. State Street Bank v. Lord, 851 So.2d 790 (Fla. 4 Dist. 2003).

15. This is a pleading deficiency because Plaintiff in fact admits in paragraph

19 of the complaint that “Plaintiff neither has any knowledge as to when the subject

Promissory Note was lost or destroyed, nor as to the manner of loss or destruction.” Further, Plaintiff loosely alleges in paragraph 17 that “Plaintiff or its predecessor(s) was in possession of the Promissory Note and was entitled to enforce it when the loss of possession occurred.”

16. It is insufficient to merely allege that the note is lost and repeat verbatim the separate clauses of section 673.3091, Florida Statutes. Rather, pursuant to section 673.3091, Florida Statutes an owner of a lost, stolen, or destroyed instrument must allege facts establishing he is prevented from producing the original instrument. Gutierrez v. Bermudez, 540 So.2d 888 (Fla. 5th DCA 1989); see also Lawyers Title Ins. v. Novastar Mortg., 862 So.2d 793 (Fla. 4th DCA 2003); Dunn v. Willis, 599 So.2d 271 (Fla. 5th DCA 1992); Barber v. Ehrich, 394 So.2d 220 (Fla. 5th DCA 1981).

17. Plaintiff, for example, fails to allege when Plaintiff first came into possession of the note and mortgage, where same were stored, the date as of which Plaintiff realized it was no longer in possession of the note and mortgage, and the steps Plaintiff took as a result.

18. The failure to state a cause of action is a pleading deficiency not curable even in the instance of a default judgment. Hogan v. Garceau, 880 So.2d 823 (Fla. 5th DCA 2004).

19. Section 22 of the Subject Mortgage provides the manner in which the lender must provide notice of the default and acceleration of the loan documents.

20. The law is well settled in Florida (and the mortgage contains a provision) requiring that the Lender must give the “Borrowers” notice of the loan default and an opportunity to cure the default before the loan can be accelerated. See, Barnes v. Resolution Trust Corp., 664 So.2d 1171 (Fla 4th DCA 1995); New England Mutual Life Ins. Co. v. Luxury Home Builders, Inc., 311 So.2d 160 (Fla. 3d DCA 1975); and Campbell v. Werner, 232 So.2d 252 (Fla. 3d DCA 1970).

21. Plaintiff. fails to give proper written notice of default and acceleration as required by the mortgage and law. Defendants did not receive Notice of Default and Acceleration before the lawsuit was filed.

22. Defendants, John and Arlen Smith, reserve the right to amend and/or additional bases for their Motion to Dismiss subject to further discovery.

WHEREFORE, Defendants, requests this Court dismiss the Plaintiff’s

Complaint with prejudice for (1) Lacks of subject matter jurisdiction, (2) Failure to state a sufficient Claim, (3) Lacks of Standing, (4) Failure to meet requirement of Florida Statute 71.001 for re-establishment of notes, (5) Failure to provide proper written Notice of Default and Acceleration as required by the mortgage and law.

.

____________________________ Defendant


I HEREBY CERTIFY that a true and correct copy of the foregoing was forwarded to

to : , Attorney for Plaintiff, this day of September 2009 tel. no.

______________________________

Defendant

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Emmanuel Posted 01/01/10 at 01:31 PM Reply with quote #6

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Generally: Prepare to win or at least educate the courts on each of your motions, one small battle at a time. Don’t expect courts to give you a piece of real estate free and clear, but if you play chess know you can check/checkmate there moves without initially winning – e.g. if they can’t prosecute the case in (10 months Florida) the court can and will dismiss the case with prejudice, then you can obtain quiet title.

1. How do you go about doing it

2.Do you know the steps to follow to find a Mortgage in a

securitized pool

Manolo

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How to find the SEC filing for your Mortgage

http://www.foreclosureprose.com/storage/forms/HowToFindATrustSECFiling.pdf

How to file a Quiet title.

If your defenses are good and the Plaintiff Summary Jugment is denied, in Florida the Plaintiff has 10 months to refile or Judge has to dimiss the case with Prejudice. Real Estate Lawyer knows how to file a Lawsuit to quiet title. I don't know how.

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Pro Se Litigant file Discovery together with Motion to Dismiss to put his case in Discovery proceeding to prevent the Bank lawyer files Motion Summary Judgment at the hearing. Summary Judgment is improper during discovery. Plaintiff has to reply to all the discoveries. Google and check your state Rule and Civil Practices Procedures for proper rules citation. Some States limits the Interrogatories questions to 30 questions.

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IN THE SUPREME COURT OF KINGS COUNTY

STATE OF NEW YORK

ABC

Plaintiff

Vs.

XYZ

Defendants

DEFENDANTS FIRST MOTION REQUESTING PLAINTIFF TO PRODUCE

DOCUMENTS, INTERROGATORIES AND ADMISSIONS

COMES NOW DEFENDANT, XYZ, and files this Motion requesting Plaintiffs,

ABC, in its capacity as the Lender as per the Mortgage Deed dated 28th February 2008

to produce the Documents, Interrogatories and Admissions.

Request for Production of Documents

Pursuant to the New York Civil Practice Law and Rules Section 3120 the Defendant,

Andrea Davilar hereby request that the named Plaintiff, Option One Mortgage

Corporation to produce the following documents for inspection and copying at a

location within the venue of the Supreme Court of the Kings County, New York,

within thirty days of this request. Andrea Davilar asks to be informed of the date, time

and place where the requested documents can be copied by her or her agent or in the

alternative, Option One Mortgage Corporation may furnish a legible, true and correct

copy of each requested documents to (Defendant name) at her mailing address as given

below except for the requested Promissory Note are to be served upon (Defendant)

within thirty (30) days after service of this request for production of documents.

Andrea Davilar request the Counsel purporting to represent Option One Mortgage

Corporation, within 30 days of this request for production of these documents, original Promissory Note to the Defendant.

Instructions to Request for Production of Documents

1. This request for production of documents is directed towards all information

known or available to Option One Mortgage Corporation including

information contained in the records and documents in Option One Mortgage

Corporations custody or control or available to Option One Mortgage

Corporation upon reasonable inquiry. Where requested documents does not

exist please state the documents does not exist.

2. Each request for production of documents is to be deemed a continuing one. If

after serving any requested document, an authorized officer of Option One

Mortgage Corporation obtains any further documentation pertaining to that

request for production, Option One Mortgage Corporation is requested to

serve a supplemental answer setting forth copies of additional documents.

Definitions

1. Option One Mortgage Corporation includes any and all persons acting in

concert with Option One Mortgage Corporation.

2. “Document” includes every piece of paper held in Option One Mortgage

Corporations possession or generated by Option One Mortgage Corporation.

3. “GSE” means Government Sponsored Entity.

4. “MERS” means Mortgage Electronic Registration System.

5. “Nominal Lender” means and includes the Special Purpose Entity which has

been constituted by the Option One Mortgage Corporation.

6. “Andrea Davilar” includes all nick names, pseudonyms and / or misnomers in

any paper or documents referencing the Defendant or any liability or

obligation attributable to her, including Andrea A. Davilar

Documents Requested

1. Subject to the foregoing conditions, produce the original Promissory Note

alleged to have been signed by Andrea Davilar as per the loan bearing No:

331044918. If none, state “none”.

2. Produce the Order relieving Mr. Leo S. Ortega as the Vice President of

Deutsche Bank on or after 19th June 2007 which entitle him to join as the Vice

President of Option One Mortgage Corporation and to sign the Affidavit of

Merit and the Amount Due on behalf of Option One Mortgage Corporation on

28th June 2007. If none, state “none”.

3. Produce if any certified or uncertified security used for the funding of this

account. If none, state “none”.

4. Produce any and all "Pooling Agreement(s)" between the nominal lender at the

loan closing and any party or parties who could claim an interest in the loan

closing or documents pertaining thereto and any GSE or other party. If none,

state “none”.

5. Produce any and all "Deposit Agreement(s)" between the nominal lender at the



state “none”.

6. Produce any and all "Servicing Agreement(s)" between the nominal lender at

the loan closing and any party or parties who could claim an interest in the

loan closing or documents pertaining thereto and any GSE or other party. If

none, state “none”.

7. Produce any and all "Custodial Agreement(s)" between the nominal lender at

the loan closing and any party or parties who could claim an interest in the

loan closing or documents pertaining thereto and any GSE or other party. If


8. Produce any and all "Master Purchasing Agreement(s)" between the nominal

lender at the loan closing and any party or parties who could claim an interest

in the loan closing or documents pertaining thereto and any GSE or other

party. If none, state “none”.

9. Produce any and all "Issuer Agreement(s)" between the nominal lender at the



state “none”.

10. Produce any and all "Commitment to Guarantee Agreement(s)” between the

nominal lender at the loan closing and any party or parties who could claim an

interest in the loan closing or documents pertaining thereto and any GSE or

other party. If none, state “none”.

11. Produce any and all "Release of Document Agreement(s)” between the




12. Produce any and all "Master Agreement for Servicer’s Principal and Interest

Custodial Account" between the nominal lender at the loan closing and any

party or parties who could claim an interest in the loan closing or documents

pertaining thereto and any GSE or other party. If none, state “none”.

13. Produce any and all "Servicer's Escrow Custodial Account" between the




14. Produce any and all "Release of Interest Agreement(s)” between the nominal

lender at the loan closing and any party or parties who could claim an interest

in the loan closing or documents pertaining thereto and any GSE or other

party. If none, state “none”.

15. Produce any and all “Trustee Agreement(s)” between the nominal lender at the


closing or documents pertaining thereto and trustee(s) regarding this account

or pool accounts with any GSE or other party. If none, state “none”.

16. Produce any and all document(s) evidencing any trust relationship regarding

the Mortgage or and any Note in this matter. If none, state “none”.

17. Produce any and all document(s) establishing any Trustee of record for the

Mortgage or and any Note in this matter. If none, state “none”.

18. Produce any and all document(s) establishing the date of any appointment of

Trustee for the Mortgage or and any Note, including any and all assignments

or transfers or nominees of any substitute trustees(s). If none, state “none”.

19. Produce any and all document(s) establishing any Grantor for this Mortgage or

and any Note in this matter. If none, state “none”.

20. Produce any and all document(s) establishing any Grantee for this Mortgage

or and any Note in this matter. If none, state “none”.

21. Produce any and all document(s) establishing any Beneficiary for this

Mortgage or and any Note in this matter. If none, state “none”.

22. Produce any and all document(s) evidencing the Mortgage. If none, state

“none”.

23. Produce all data, information, notations, text, figures and information

contained in your mortgage servicing and accounting computer systems

including, but not limited to Alltel or Fidelity CPI system, or any other similar

mortgage servicing software used by you, any servicers, or sub-servicers of

this mortgage account from the inception of this account to the date written

above. If none, state “none”.

24. Produce all descriptions and legends of all Codes used in Option One

Mortgage Corporations mortgage servicing and accounting system so as to

enable the examiners and auditors and experts retained to audit and review

this mortgage account to properly carry on their work. If none, state “none”.

25. Produce all assignments, transfers, allonge, or other documents evidencing a

transfer, sale or assignment of this mortgage, deed of trust, monetary

instrument or other document that secures payment by Andrea Davilar to this

obligation in this account from the inception of this account to the present date

including any such assignment on MERS. If none, state “none”.

26. Produce all deeds in lieu, modifications to this mortgage, monetary instrument

or deed of trust from the inception of this account to the present date. If none,

state “none”.

27. Produce the front and back of each and every canceled check, money order,

draft, debit or credit notice issued to any servicers of this account for payment

of any monthly payment, other payment, escrow charge, fee or expense on this

account. If none, state “none”.

28. Produce all escrow analyses conducted on this account from the inception of

this account until the date of this letter. If none, state “none”.

29. Produce the front and back of each and every canceled check, draft or debit

notice issued for payment of closing costs, fees and expenses listed on any and

all disclosure statements including, but not limited to, appraisal fees,

inspection fees, title searches, title insurance fees, credit life insurance

premiums, hazard insurance premiums, commissions, attorney fees, points,

etc. If none, state “none”.

30. Produce front and back copies of all payment receipts, checks, money orders,

drafts, automatic debits and written evidence of payments made by Andrea

Davilar or others on this account. If none, state “none”.

31. Produce all letters, statements and documents sent to Andrea Davilar by

Option One Mortgage Corporation. If none, state “none”.


agents, attorneys or representatives of Option One Mortgage Corporation. If



previous servicers, sub-servicers or others in the account file or under the

control or possession or in the control or possession of any affiliate, parent

company, agent, servicers, sub-servicers, attorney or other representative of

Option One Mortgage Corporation. If none, state “none”.

34. Produce all letters, statements and documents contained in the account file of

Andrea Davilar or imaged by Option One Mortgage Corporation, any

servicers or sub-servicers of this mortgage from the inception of this account

to the present date. If none, state “none”.

35. Produce all electronic transfers, assignments and sales of the note or asset,

mortgage, deed of trust or other security instrument. If none, state “none”.

36. Produce all copies of property inspection reports, appraisals, BPO s and

reports done on the property of Andrea Davilar. If none, state “none”.

37. Produce all invoices for each charge such as inspection fees, BPO s, appraisal

fees, attorney fees, insurance, taxes, assessments or any expense which has

been charged to this mortgage account from the inception of this account to

the present date. If none, state “none”.

38. Produce all checks used to pay invoices for each charge such as inspection

fees, BPO s, appraisal fees, attorney fees, insurance, taxes, assessments or any

expense which has been charged to this account from the inception of this

account to the present date. If none, state “none”.

39. Produce all agreements, contracts and understandings with vendors that have

been paid for any charge on this account from the inception of this account to

the present date. If none, state “none”.

40. Produce all account servicing records, payment payoffs, payoff calculations,

ARM audits, interest rate adjustments, payment records, transaction histories,

account histories, accounting records, ledgers, and documents that relate to the

accounting of this account from the inception of this account to the present

date. If none, state “none”.

41. Produce all account servicing transaction records, ledgers, registers and

similar items detailing how this account has been serviced from the inception

of this account to the present date. If none, state “none”.

42. Produce all sales contracts, servicing agreements, assignments, alonges,

transfers, indemnification agreements, recourse agreements and any agreement

related to this account from the inception of this account to the present date.

43. Provide copies of all invoices and detailed billing statements from any law

firm or attorney that has billed such fees that have been assessed or collected

from this account from the inception to the present date.

REQUEST FOR ADMISSION

YOU ARE REQUIRED, pursuant to the New York Civil Practice Law and Rules

Section 3123, by and through an authorized officer of your Company, to answer

completely, in writing and under oath, the following request of Admission, and to

return your answers to this request for admissions to Andrea Davilar at her mailing

address indicated below, within thirty days of the date of service of these request for

admissions.

Instructions to Request for Admissions

1. These requests for Admissions are directed towards all information known or

available to Plaintiff Option One Mortgage Corporation including information

contained in the records and documents in Option One Mortgage Corporations

custody or control or available to Option One Mortgage Corporation upon

reasonable enquiry. Your answer to each request for admission shall

specifically deny the matter, or set forth in detail the reasons why you cannot

truthfully admit or deny the matter. Where request for admission cannot be

answered in full they shall be answered as completely as possible and

incomplete answers shall be accompanied by a specification of the reasons for

the incompleteness of the answer and of whatever actual knowledge is

possessed with respect to each unanswered or incompletely answered request

for admission.

2. Each request for admission is to deemed a continuing one. If after serving an

answer to any request for admission, an authorized officer of Option One

Mortgage Corporation obtains any further information pertaining to that

request for admission, the authorized officer for Option One Mortgage

Corporation is requested to serve a supplemental answer setting forth such

information.

3. As to every request for an admission which an authorized officer for Option

One Mortgage Corporation fails to answer in whole or in part, the subject

matter of that admission will be deemed confessed and stipulated as fact to

the court.

Definitions

1. “You” and “your” includes Option One Mortgage Corporation any and all

persons acting in concert with Option One Mortgage Corporation.




been constituted by the Option one Mortgage Corporation.



obligation attributable to her, including Andrea A. Davilar.

Admissions Requested

1. Admit or deny that Option One Mortgage Corporation has assigned the

Promissory Note and Mortgage Deed to a third party.

Admitted

Denied

2. Admit or deny that Option One Mortgage Corporation has no standing to

initiate foreclosure proceedings against Andrea Davilar.

Admitted

Denied

3. Admit or deny that Leo S. Ortega is not the authorized person to swear the

Affidavit of Merit.

Admitted

Denied

4. Admit or deny that proper statutory disclosures regarding the mortgage, its

interest and other related charges and mode of payment has been made to

(Defendant Name)

Admitted

Denied

5. Admit or deny that Summons has been served properly on( Defendant Name) in

this case.

Admitted

Denied

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Ann Posted 01/03/10 at 11:28 AM Reply with quote #9

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Interrogatories

YOU ARE REQUIRED, pursuant to the New York Civil Practice Law and Rules

Sections 3131, 3132 and 3133, by and through an authorized officer of the your

Company, to answer completely in writing, and under oath, the following

Interrogatories, and to return your answers to these Interrogatories to Andrea Daviler

at her mailing address indicated below, within thirty days of the date of service of

these Interrogatories.

Instructions to these Interrogatories

1. These interrogatories are directed towards all information known or available

to the Plaintiff, Option One Mortgage Bank including information contained

in the records and the documents in Option One Mortgage Banks custody or

control or available to Option One Mortgage Bank upon reasonable enquiry.

Where interrogatories cannot be answered in full, they shall be answered as

completely as possible and incomplete answers shall be accompanied by a

specification of the reasons for the incompleteness of the answer and of

whatever actual knowledge is possessed with respect to each unanswered or

incompletely answered interrogatory. If sufficient space for your answer is not

provided herein, you may attach additional papers with your answers and refer

to your attached answers in the space provided herein.

2. Each interrogatory is to be deemed a continuing one. If, after serving an

answer to any interrogatory, an authorized officer for Option One Mortgage

Bank obtains any further information pertaining to that interrogatory, the

authorized officer of Option One Mortgage Corporation is requested to serve a

supplemental answer setting forth such information.

Definitions

1. “You” and “your” includes Option One Mortgage Corporation any and all

persons acting in concert with Option One Mortgage Corporation.



3. “GSE” means Government Sponsored Entity.

4. “MERS” means Mortgage Electronic Registration System.


been constituted by the Option one Mortgage Corporation.



obligation attributable to her, including Andrea A. Davilar.

Interrogatories

1. State the name, job title and business address of each person providing

information in response to these discovery requests.

2. State the type of business organization Option One Mortgage Corporation is

and name every State of the union in which it is chartered or registered.

3. Identify for each account accounting and servicing system used by Option One

Mortgage Corporation and any sub-servicers or previous servicers from the

inception of this account to the present date which enable the experts to

decipher the data provided.

4. For each account accounting and servicing system identified by Option One


inception of this account to the present date, state the name and address of the

company that designed and sold the system.

5. For each account accounting and servicing system used by Option One


inception of this account to the present date, please provide the complete

transaction code list for each system so that Andrea Davilar and others can

adequately audit this account.

6. In a spreadsheet form or in letter form in a columnar format, detail each and

every credit on this account from the date such credit was posted to this

account as well as the date any credit was received.

7. In a spreadsheet form or in letter form in a columnar format, detail each and

every debit on this account from the date such debit was posted to this account

as well as the date any debit was received.

8. For each debit and credit listed, state the definition for each corresponding

transaction code Option One Mortgage Corporation utilize.

9. For each transaction code, provide the master transaction code list used by

Option One Mortgage Corporation or previous servicers.

10. Has each sale, transfer or assignment of this mortgage, monetary instrument,

deed of trust or any other instrument Andrea Davilar executed to secure this

debt been recorded in the county property records in the county and state in

which Andrea Davilers property is located from the inception of this account

to the present date? State Yes or No.

11. If No, why?

12. Is Option One Mortgage Corporation the servicer of this mortgage account or

the holder in due course and beneficial owner of this mortgage, monetary

instrument and /or deed of trust? State Yes or No.

13. Have any sales, transfers or assignments of this mortgage, monetary

instrument, deed of trust or any other instrument executed by Andrea Davilar

to secure this debt been recorded in any electronic fashion such as MERS or

other internal or external recording system from the inception of this account

to the present date? State Yes or No.

14. If yes, give details of the names of the seller, purchaser, assignor, assignee or

any holder in due course to any right or obligation of any note, mortgage, deed

of trust or security instrument executed by Andrea Davilar securing the

obligation on this account that was not recorded in the county records where

my property is located whether they be mortgage servicing rights or the

beneficial interest in the principal and interest payments.

15. Did the originator or previous servicers of this account have any financing

agreements or contracts with Option One Mortgage Corporation or an affiliate

of Option One Mortgage Corporation?

16. Did the originator or previous servicers of this account have any financing

agreements or contracts with Option One Mortgage Corporation or an affiliate

of Option One Mortgage Corporation?

17. Did the originator or previous servicers of this account receive any

compensation, fee, commission, payment, rebate or other financial

consideration from Option One Mortgage Corporation or affiliate of Option

One Mortgage Corporation for handling, processing, originating or

administering this loan? If yes, please describe and itemize each and every

form of compensation, fee, commission, payment, rebate or other financial

consideration paid to the originator of this account by your company or any

affiliate.

18. State where the originals of this entire account file are currently located and

how they are being stored, kept and protected.

19. Where is the original monetary instrument or mortgage Andrea Davilar signed

located? Give details of its physical location and whether anyone is holding

the Promissory Note as a custodian or trustee?

20. Where is the original deed of trust or mortgage and Promissory Note signed by

Andrea Davilar placed? Give details of its physical location and whether

anyone holding this Note as a custodian or trustee?

21. State whether since the inception of this account, there has been any

assignment of Andrea Davilar’s monetary instrument / asset to any other

party? If the answer is yes, give details of the names and addresses of each and

every individual, party, bank, trust or entity that has received such

assignments.

22. State whether since the inception of this account there has been any

assignment of the deed of trust or mortgage and Promissory Note to any other

party? If the answer is yes, give details of the names and addresses of each and

every individual, party, bank, trust or entity that has received such

assignments.

23. State whether since the inception of this account, there has been any sale or

assignment of the servicing rights to this mortgage account to any other party?

If the answer is yes, give details of the names and addresses of each and every

individual, party, bank, trust or entity that has received such assignments or

sale.

24. State whether since the inception of this account, there has been any subservicers

serviced any portion of this mortgage account? If the answer is yes,

give details of the names and addresses of each and every individual, party,

bank, trust or entity that has sub-serviced this mortgage account.

25. Has this mortgage account been made a part of any mortgage pool since the

inception of this loan? If yes, give details of each and every account mortgage

pool that this mortgage has been a part of from the inception of this account to

the present date.

26. Whether each and every assignment of Andrea Davilar’s asset/monetary

instrument been recorded in the county land records where the property

associated with this mortgage account is located?

27. State whether there has been any electronic assignment of this mortgage with

MERS or any other computer mortgage registry service or computer program?

If yes, give details of the name and address of each and every individual,

entity, party, bank, trust or organization or servicers that have been assigned to

mortgage servicing rights to this account as well as the beneficial interest to

the payments of principal and interest on this loan.

28. Have there been any investors (as defined by Option One Mortgage

Corporation) who have participated in any mortgage-backed security,

collateral mortgage obligation or other mortgage security instrument that this

mortgage account has ever been a part of from the inception of this account to

the present date? If yes, give details of the name and address of each and every

individual, entity, organization and/or trust.

29. Give details of the parties and their addresses to all sales contracts, servicing

agreements, assignments, allonges, transfers, indemnification agreements,

recourse agreements and any agreement related to this account from the

inception of this account to the present date.

30. State how much amount was paid for this individual mortgage account by

Option One Mortgage Corporation?

31. If part of a mortgage pool, state the principal balance used by Option One

Mortgage Corporation to determine payment for this individual mortgage

loan?

32. If part of a mortgage pool, state the percentage paid by Option One Mortgage

Corporation of the principal balance above used to determine purchase of this

individual mortgage loan?

33. To whom did Option One Mortgage Corporation issue a check or payment to

for this mortgage loan?

34. Did any investor approve of the foreclosure of Andrea Davilers property?

State Yes or No.

35. Give details of all persons who approved the foreclosure of the property of

Andrea Daviler?

36. Have attorney fees ever been assessed to this account from the inception of

this account to the present date? State Yes or No.

37. If yes, detail each separate assessment, charge and collection of attorney fees

to this account from the inception of this account to the present date and the

date of such assessments to this account.

38. Have attorney fees ever been charged to this account from the inception of this

account to the present date? State Yes or No.

39. If yes, detail each separate charge of attorney fees to this account from the

inception of this account to the present date and the date of such assessments

to this account.

40. Have attorney fees ever been collected from this account from the inception of

this account to the present date? State Yes or No.

41. If yes, detail each separate collection of attorney fees to this account from the

inception of this account to the present date and the date of such assessments

to this account.

42. Give details of the name and address of each attorney or law firm that has

been paid any fees or expenses related to this account from the inception of

this account to the present date.

43. Specify in writing the provision, paragraph, section or sentence of any

Promissory Note, mortgage, deed of trust or any agreement signed by Andrea

Daviler that authorized the assessment, charge or collection of attorney fees.

44. Give details of each separate attorney fee assessed from this account and for

which each corresponding payment period or month such fee was assessed

from the inception of this account to the present date.

45. Give details of each separate attorney fee collected from this account and for

which each corresponding payment period or month such fee was collected


46. Give details of any adjustments in attorney fees assessed and on what date

such adjustment was made and the reason for such adjustment.

47. Give details of any adjustments in attorney fees collected and on what date


48. Has interest been charged on any attorney fees assessed or charged to this

account? State Yes or No.

49. Is interest allowed to be assessed or charged on attorney fees charged or

assessed to this account? State Yes or No.

50. How much total in attorney fees have been assessed to this account from the

inception to the present date?

51. How much total in attorney fees have been collected from this account from

the inception to the present date?

52. How much total in attorney fees have been charged to this account from the

inception to the present date?

53. Has there been any suspense or unapplied account transactions on this account

from the inception of this account until the present date? State Yes or No.

54. If yes, explain the reason for each and every suspense transaction that

occurred on this account. If no, please skip the questions in this section

dealing with suspense and unapplied accounts.

55. In a spreadsheet or in letter form in a columnar format, give details of each

and every suspense or unapplied transaction, both debits and credits that has

occurred on this account from the inception of this account to the present date.

56. Have you reported the collection of late fees on this account as interest in any

statement to Andrea Davilar or to the IRS? State Yes or No.

57. Has any previous servicers or sub-servicers of this mortgage reported the

collection of late fees on this account as interest in any statement to me or to

the IRS? State Yes or No.

58. Do you consider the payment of late fees as liquidated damages to you for not

receiving payment on time? State Yes or No.

59. Are late fees considered as interest? State Yes or No.

60. Give details of the expenses and damages Option One Mortgage Corporation

incurred for any payment Andrea Davilar made that was late.

61. Were any of these expenses or damages charged or assessed to this account in

any other way? State Yes or No.

62. If yes, describe what expenses or damages were charged or assessed to this

account.

63. Give details of the expenses you or others undertook due to any late payment

Andrea Davilar made.

64. Give details of the damages you or others undertook due to any late payment

Andrea Davilar made.

65. Give details of the provision, paragraph, section or sentence of any Note,

mortgage, deed of trust or any agreement Andrea Davilar signed that

authorized the assessment or collection of late fees.

66. Give details and list of each separate late fee assessed to this account and for

which corresponding payment period or month such late fee was assessed


67. Give details and list of each separate late fee collected from this account and

for which corresponding payment period or month such late fee was collected


68. Give details and list of any adjustments in late fees assessed and on what date


69. State whether any interest has been charged on any late fee assessed or

charged to this account?

70. State whether any interest is allowed to be assessed or charged on the late fees

to this account?

71. State whether any late charges been assessed to this account?

72. If yes, how much in total late charges have been assessed to this account from

the inception of this account to the present date?

73. Give details with the exact months or payment dates Option One Mortgage

Corporation or other previous servicers or sub-servicers of this account claim

which Andrea Davilar have been late with a payment from the inception of

this account to the present date.

74. State whether any late charges been collected on this account from the

inception of this account to the present date?

75. If yes, how much in total late charges have been collected on this account

from the inception of this account to the present date?

76. State whether Wells Fargo National Association as trustee has ever been

assigned in blanks the mortgage and note after closing.

77. Pursuant to a pooling and servicing agreement has Wells Fargo National

Association as trustee been assigned all rights and title to subject mortgage

and note and if so when did this event take place.

Executed this day of , 2008.

Name and title of the authorized officer or the agent

OPTION ONE MORTGAGE CORPORATION

State of:

County of:

Before me the undersigned, a Notary Public in and for the said County and State on

this day of , 2008, personally appeared, who

is ( ) personally known to me or ( ) proven by proper identification, to be the person

who executed the within and foregoing instrument.

Type of ID:

Signature

Notary Public (seal)

Request for Discovery prepared and submitted by:

Andrea Daviler

Mailing address:

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TRY TO GET A GOOD LAWYER

Pro Se litigants filed Motion for Time Extension, Motion to Dismiss and Discoveries. So far these actionss buy them few months delay and probably some money. The next steps will be more difficult and the litigants will have more chance to win if they are represented by a good lawyer at the hearing of Motion to Dismiss. A lawyer can be hired at any time during the lawsuit. The Lawyer can file an Amended Motion to Dismiss to perfect it and argue with Plaintiff lawyer in front of the Judge. It seems to me that the Judge listens more to the lawyer than the pro se. Many good Foreclosure Defense lawyers will represent you with a small fee upfront and small monthly fee each month that you are still the house. You pay as the case proceed and cancel the payment when you are no longer afford the payment.

The Defendant has to coordinate with the Plaintiff's lawyer and the Judge clerk to set a hearing date.

What's going happenned at the Motion to Dismiss hearing ? 3 scenarios:

1. The Judge dismiss the lawsuit with prejudice. Bank can't refile the foreclosure. Happens very rarely .

2. The Judge dismiss the lawsuit without prejudice. Bank can refile the lawsuit anytime later. Some Bank refile in 30 day, some banks do nothing for

a while.

3. The Judge denies the Motion, orders the Defendant to file an Answer in 10 or 20 or 30 days or He can order Mediation.

A lawyer told me that it is better to go to Hearing with a Court reporter .

In case the Defendant want to appeal later, Appeal Court won't hear the case without Court Reporter documentation of the hearings. Research case law of Judges decision to dismiss due to lack of standing, no cause of action etc related to the Motion to Dismissto show the Judge at the hearing. Again, it is much better to have a lawyer at this point. I know an excellent Foreclosure Attorney in South Florida Mr. Dillion Graham Esq. Tel 305-445-9185. He is a prominent Litigator and experienced Foreclosure Defense lawyer. Free one hour consultation.

If you are in other states and can't find an affordable Attorney, look for an attorney who has experience in court litigation , Appeal court, Real Estate and gave him some Forelosure Defense Manuals to read. Lawyers learn fast. And maybe he will give you a deal to defend you. Email me for Foreclosure Defense Manuals at [email protected].

If the Judge orders you to file an Answer, the Answer is a very important pleadings as all Affirmative Defenses must be raised in the Answer to be admit in trial or defend the Summary Judgment. Violations of HUD, RESPA, HOPA, TILA gives right for Jury Trial. It is much better to have lawyer at this point if you can afford one.

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SAMPLE 1 - ANSWER WITH AFFIRMATIVE DEFENSES, JURY TRIAL

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This is Florida pleadings with Florida case laws cited. It is better with case laws from the Litigants state. Go to the Law library, use Westlaw to search state case laws.

IN THE CIRCUIT COURT OF THE FOURTH

JUDICIAL CIRCUIT, IN AND FOR DUVAL

COUNTY, FLORIDA

CASE NO: 16-2008-CA-02102

DIVISION: CV-G

U.S. Bank, N.A., Plaintiff,

vs.

Arthur L. Campbell; Salulysa Campbell, et al.,

Defendants.

_____________________________________/

DEFENDANT SALULYSA CAMPBELL’S FIRST AMENDED ANSWER TO COMPLAINT, AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND DEMAND FOR TRIAL BY JURY

COMES NOW the separate Defendant Salulysa Campbell and for her first amended answer to the plaintiffs’ complaint, affirmative defenses, counterclaims and demand for trial by jury, states:

ANSWER

1. Defendant denies that this Plaintiff has stated a cause of action for foreclosure because on the date this lawsuit was filed the plaintiff was not the true owner of the claim sued upon; is not the real party in interest and is not shown to be authorized to bring this foreclosure action.

2. Admit

3. Deny that the subject note and mortgage was assigned to U.S. Bank, N.A.

Defendant affirmatively asserts that the promissory note attached to the Plaintiffs’ Complaint directly and specifically incorporates federal regulations issued by the Secretary of Housing and Urban Development which contractually limit the plaintiff’s rights of acceleration, collection and foreclosure in the case of a borrower’s default, to wit:

“If Borrower defaults by failing to pay in full any monthly payment, then Lender may, except as limited by regulations of the Secretary in the case of payment defaults, require immediate payment…This Note does not authorize acceleration when not permitted by HUD regulations. As used in this Note, ‘Secretary’ means the Secretary of Housing and Urban Development…”

Defendant further denies that the subject note is a negotiable instrument or that the note is subject to being held in due course; denies that the subject note was legally assigned to the Plaintiff; denies that the Plaintiff is the present owner of the subject mortgage or the promissory note; and denies that the provisions of the Uniform Commercial Code apply to the subject loan transaction or the promissory note.

Defendant’s denial of the plaintiff’s claim that it owns the subject mortgage or note is also based on the contents of the purported assignments attached to the complaint which show that the exact same persons executed or witnessed the assignments on the exact same day with Jon. H. Cardell Assistant Vice President purportedly assigning on behalf of and to both Mercantile Bank and Carolina First Bank.

4. Admit that this separate defendant is the present owner of the subject property and the only person in possession of the subject property. Deny that Arthur Campbell has any ownership or possessory interest in the property.

5. Deny. Separate Defendant made payments including a payment made on October 10, 2007 which payments exceeded the monthly required payment. These payments totaled $919.56 while the monthly payment was at or about

$646.30. Plaintiff recorded this payment on or about October 17, 2007 per page 2 of Customer Account Activity Statement.

6. Deny the amount of the debt as alleged. Defendant disputes the amount and characterization of this debt, affirmatively claims that many unauthorized, illegal, and predatory charges and fees have been added to the claimed balance due under the subject mortgage and note and by reason thereof, and pursuant to the Federal Fair Debt Collection Practices Act Defendant hereby demands written and itemized verification of said debt from the Plaintiff including a complete written and itemized transaction history and accounting of all charges, fees and payments.

7. Deny.

8. Deny.

9. Deny as this is not an allegation of fact.

10. Deny.

11. Deny.

12. Deny.

13. Deny.

14. Deny.

15. Deny.

AFFIRMATIVE DEFENSES

1. FAILURE TO STATE CAUSE OF ACTION; PLAINTIFF DOES NOT HAVE STANDING BECAUSE PLAINTIFF IS NOT REAL PARTY IN INTEREST: The exhibits attached to Plaintiffs’ Complaint are inconsistent with Plaintiffs’ allegations as to ownership of the subject promissory note and mortgage on the date this foreclosure action was commenced. Plaintiffs have failed to establish that plaintiffs are real parties in interest and have failed to state a cause of action.

a. The HUD insured promissory note that is the subject of this foreclosure action is not a negotiable instrument and therefore is not subject to transfer by endorsement because the note directly and specifically incorporates and directly references and applies federal regulations issued by HUD that limit the Lender’s rights of acceleration, collection and foreclosure in the case of a borrower’s default. The application, incorporation and reference to the HUD federal regulations which set out specific default loan servicing and loss mitigation requirements imposed on the lender renders the note nonnegotiable under the Uniform Commercial Code.

b. The HUD insured promissory note has a boxed FHA case number and states, in pertinent part, under the section on borrower’s failure to pay:

“If Borrower defaults by failing to pay in full any monthly payment, then Lender may, except as limited by regulations of the Secretary in the case of payment defaults, require immediate payment…This Note does not authorize acceleration when not permitted by HUD regulations. As used in this Note, ‘Secretary’ means the Secretary of Housing and Urban Development…”

c. It is plain on the face of the HUD insured promissory note at issue in this foreclosure that is attached to the plaintiffs’ Complaint that the note does not contain just an unconditional promise to pay. The resulting uncertainty presented by the terms of the note that specifically apply, incorporate and reference the HUD regulations defeat any argument that the note is a negotiable instrument subject to transfer via endorsement.

d. Therefore, the Uniform Commercial Code, F.S.Chapter 673 does not apply to transfer or enforce the promissory note at issue in this foreclosure action. Nagel v. Cronebaugh, 782 So. 2d 436 (Fla. 5th DCA 2001), citing United Nat’l Bank of Miami v. Airport Plaza Ltd. Partnership, 537 So. 2d 608,609 (Fla. 3d DCA 1988); Thompson v. First Union National Bank, 643 So.2d 1179 (Fla. 5th DCA 1994); See also, Bankers Trust v. 236 Beltway Investment, Inc., 865 F. Supp. 1186 (E.D. Va. 1994).

e. The HUD insured promissory note is conditional because it is subject to and governed by the HUD default loan servicing and loss mitigation regulations. The court cannot determine the obligations required of the person promising to pay or the person requiring payment without reference to the HUD regulations. As a result, the note is not an unconditional promise, is not a negotiable instrument and is not subject to transfer by endorsement. Fla. Stat. § 673.1041.

f. Under Section 3-106(a) of the Uniform Commercial Code “a promise or order is [conditional if it] is subject to or governed by another record, or [the] rights or obligations with respect to the promise or order are stated in another record. Fla. Stat. § 673.1061.

g. “To determine whether an instrument meets negotiable instrument definition of Uniform Commercial Code, only [the] instrument itself may be looked to, not other documents, even when other documents are referred to in instrument.” First State Bank at Gallup v. Clark, 570 P.2d 1144 (N.M. 1977); Amberboy v. Societe de Banque Privee, 831 S.W.2d 793, 794 (Tex. 1992); Walls v. Morris Chevrolet, Inc., 515 P.2d 1405, 1407 (Okl. App. 1973).

h. “No instrument can be negotiable which (1) is subject to another agreement, (2) refers to another agreement for the rights of the parties, or (3) incorporates another agreement.” Hawkland, Uniform Commercial Code Services § 3-105:2. See also, Holly Hill Acres, Ltd. v. Charter Bank of Gainesville, 314 So. 2d 209, 210-11 (Fla.2nd DCA 1975) (holding that the incorporation of the terms of a separate writing makes the promissory note a non-negotiable, conditional promise to pay); Hawkland,

Uniform Commercial Code Services § 3-105:2; Dzikowski v. Moreno (In re V.O.C. Analytical Labs., Inc.) 263 B.R. 156, 160-61 (S.D. Fla. 2001); (The phrase "subject to" or words to that effect are fatal to negotiability, regardless of the actual provisions of the other document.) Hawkland, Uniform Commercial Code Services § 3-105:2; 28; (“An order or promise is conditional if either the instrument states that the rights or obligations of the parties are defined or stated in another writing or that the rights or obligations of the parties are subject to the terms of another writing.”) Anderson, Uniform Commercial Code § 3-106:8 [Rev].

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SAMPLE 1- Continued.

2. FAILURE TO COMPLY WITH APPLICABLE HUD SINGLE FAMILY DEFAULT LOAN SERVICING REQUIREMENTS/ FAILURE TO COMPLY WITH CONDITIONS PRECEDENT: Both the HUD insured promissory note and mortgage that are the subject of this foreclosure action directly and specifically apply, incorporate and refer to federal regulations issued by HUD that directly limit the plaintiff’s rights to accelerate and foreclose in the case of a borrower’s default. The provisions in both the note and the mortgage direct the plaintiff to engage in special default loan servicing and loss mitigation in its efforts to collect this debt to avoid foreclosure.

a. The mortgage has on its face a boxed FHA Case number and states:

“9. Grounds for Acceleration of Debt.

(a) Default: Lender may, except as limited by regulations issued by the Secretary in the case of payment defaults, require immediate payment…

(d) Regulations of HUD Secretary. In many circumstances regulations issued by the Secretary will limit Lender’s rights in the case of payment defaults to require immediate payment in full and foreclose if not paid. This Security Instrument does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary.”

b. Defendant affirmatively defends this foreclosure based on the Plaintiffs’ failure to comply with the forbearance, mortgage modification, and other foreclosure prevention loan servicing requirements imposed on Plaintiffs and the subject FHA mortgage by federal regulations promulgated by HUD, pursuant to the National Housing Act, 12 U.S.C.

1710(a). As a result, Plaintiffs have failed to establish compliance with a statutory and contractual condition precedent to this foreclosure because of Plaintiffs’ failure to comply with the federal regulations, as set out herein:

1. Defendant defaulted on this FHA insured residential mortgage which is the subject of this cause due to reasons beyond her control.

2. Defendant suffered severe a severe financial hardship as a result of losing her job.

3. Her husband was unexpectedly imprisoned.

4. Defendant suffered another economic setback and hardship in March 2008 when the Department of Children and Families decreased her Food Stamp benefits.

5. Defendant had to pay outstanding utility charges or have them disconnected while alone caring for two children.

6. These circumstances caused the defendant to suffer severe financial problems.

7. At all times defendant informed and notified the plaintiff through the plaintiff’s outsourced servicer of the subject mortgage loan about her financial hardship and circumstances.

8. Defendant was in contact with Plaintiffs’ agents, representatives and employees personally, and through Jacksonville Area Legal Aid, and she informed all parties, through her contacts and communications with the servicer of her loan of her financial hardship, her requests for loss mitigation and acceptable terms by which defendant could reinstate her mortgage.

9. Plaintiff failed to offer any reasonable offer for or accommodation of loss mitigation in light of the defendant’s severe economic circumstances.

10. Defendant timely informed Plaintiff of her extreme hardships, the nature of dependency on her income, and necessity that plaintiffs not demand aggressive unachievable payments in order to work out a modification.

11. The interaction between the defendant and U.S. Bank, N.A., is not fairly or accurately characterized as “working with” because of the failure of U.S. Bank, N.A. to follow the applicable default loan servicing obligations imposed on the plaintiffs.

12. Plaintiff failed to properly service the Defendant’s federally insured home loan under the troubled loan servicing regulations imposed on this HUD insured loan because Plaintiff failed to offer this Defendant any reasonable opportunity for loss mitigation in light of the Defendant’s severe economic hardships which were not of her making or under her control.

13.The Plaintiff did not evaluate the loan for purposes of modification pursuant to the applicable and controlling federal servicing regulations, but instead, Plaintiff failed and refused to provide this Defendant with access to a modification or workout of the subject mortgage reasonably as required by federal law.

14.The Plaintiff did not properly evaluate this Defendant’s troubled loan for purposes of foreclosure avoidance because when the Defendant defaulted on her loan due to reasons beyond her control, the Plaintiff failed to adapt its collection and loan servicing practices to this Defendant’s individual circumstances.

15.The Plaintiff also did not make a reasonable effort as required by federal law to arrange a face to face meeting with the Defendant before three full monthly installments were unpaid as required by 24 C.F.R. 203.604.

16.The Plaintiff failed to evaluate all available loss mitigation techniques and failed to re-evaluate these techniques each month after the defendant missed payments as required by 24 C.F.R. 203.605.

17.The plaintiff failed to properly evaluate this defendant’s loan for troubled loan servicing and failed to provide defendant with proper access to evaluation for a loan modification or for forbearance by the act of filing this foreclosure before offering Defendant any of the federally required foreclosure avoidance options.

18.Plaintiff ignored its obligation to provide the defendant access to her legal right to receive to default loan servicing pursuant to the controlling federal laws and regulations that govern her HUD insured home loan and / or the pooling and servicing agreement that applies to the default loan servicing obligations of the plaintiff in the course of servicing the subject mortgage loan. The plaintiff’s pooling and servicing agreement is on file with the SEC.

19.Plaintiff denied this Defendant her right to receive forbearance, mortgage modification, and other foreclosure prevention loan services before the initiation of this foreclosure action.

20.Defendant made it clear to Plaintiff that she needed all the financial reprieve that she could gain under the troubled loan servicing protocol set out in the federal law and regulations that apply to her federally insured home loan.

21.The Plaintiff failed to offer a loan modification to the defendant that followed the applicable default loan servicing requirements; failed to take into account this Defendant’s financial circumstances; failed to address or deal with the legitimate disputes and issues this defendant has raised concerning the balance due under the terms of the subject mortgage loan.

22. The Defendant made reasonable attempts to get back on track in regards to the payment of her mortgage taking into account her financial difficulties and hardship which were due to reasons beyond her control.

c. The Plaintiff was required under federal law to adapt its collection and loan servicing practices to Defendant’s individual circumstances and failed to do so.

d. The Plaintiff did not make a reasonable effort as required by federal law to arrange a face to face meeting with Defendant before three full monthly installments were unpaid. 24 C.F.R. 203.604.

e. The Plaintiff was required by federal law to evaluate all available loss mitigation techniques and to re-evaluate these techniques each month after default and failed to do so. 24 C.F.R. 203.605.

f. HUD has determined that the requirements of 24 C.F.R. Part 203(C) are to be followed before any mortgagee commences foreclosure.

g. Plaintiff has no valid cause of action for foreclosure against defendant unless and until Plaintiff can demonstrate compliance with the regulations in 24 C.F.R. Part 203(C).

h. As a result, Defendant was denied access to the foreclosure prevention services and the mortgage servicing options that the plaintiffs are obligated to follow in servicing this federally insured home loan which are designed to avoid foreclosure of this HUD insured mortgage.

i. Defendant did everything she could to keep up with her monthly mortgage payments.

j. This entire foreclosure and all the extra costs and fees associated therewith were supposed to be avoided by and through the good faith and timely provision of default loan servicing and loss mitigation assistance which the Defendant was entitled to receive and which the Plaintiff was obligated to provide under federal law and under the specific terms of the subject mortgage and note.

k. Plaintiff denied this Defendant any opportunity to access a legitimate HUD required process to avoid this foreclosure.

3. PLAINTIFF FAILED TO COMPLY WITH APPLICABLE LOAN SERVICING REQUIREMENTS: Plaintiff failed to provide separate Defendant with legitimate and non predatory access to the debt management and relief that must be made available to FHA borrowers, including this Defendant and that control and apply to the subject mortgage loan. Plaintiff’s non-compliance with the conditions precedent to foreclosure imposed on the Plaintiff makes the filing of this foreclosure premature based on a failure of a contractual and/or equitable condition precedent to foreclosure which denies Plaintiff’s ability to carry out this foreclosure.

a. Defendant asserts that the special default loan servicing requirements contained in the federal regulations are incorporated into the terms of the mortgage contract between the parties as if written therein word for word and the defendant is entitled to rely upon the servicing terms set out in the mortgage and the HUD regulations.

b. Alternatively or additionally, the Defendant is contractually and equitably entitled to enforce the special default servicing obligations of the plaintiff described hereinabove.

c. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff demonstrates compliance with the foreclosure prevention servicing imposed by the mortgage contract under which the plaintiff owns the subject mortgage loan.

d. The Plaintiff failed, refused or neglected to comply with prior to the commencement of this action with the servicing obligations specifically imposed on the Plaintiff in many particulars, including, but not limited to:

1. Plaintiff failed to service and administer the subject mortgage loan in

compliance with all applicable federal state and local laws.

2. Plaintiff failed to service and administer the subject loan in accordance with the customary an usual standards of practice of mortgage lenders and servicers.

3. Plaintiff failed to extend to defendants the opportunity and failed to permit a modification, waiver, forbearance or amendment of the terms of the subject loan or to in any way exercise the requisite judgment as is reasonably required pursuant to the HUD regulations and the mortgage contract.

e. Plaintiff’s failure to meet the servicing obligations cause the filing by Plaintiff of this foreclosure to be in premature, in bad faith and a breach by Plaintiff of its obligation to Defendant set out in the mortgage contract and as specified in the HUD regulations and the contractual and equitable duty of the plaintiff to act in good faith and to deal fairly with defendant.

f. Instead, Plaintiff’s servicing failures as set forth herein render Plaintiff’s actions in filing this premature foreclosure to be in breach of the mortgage contract, in breach of plaintiff’s contractual and equitable fiduciary duties owed to defendant; in bad faith and not in accordance with the acceptable loan servicing required under the mortgage, the note and the HUD regulations.

g. Plaintiff intentionally failed to act in good faith or to deal fairly with the Defendant by failing to follow the applicable standards of residential single family mortgage servicing as described in these Affirmative Defenses thereby denying the Defendant access to the residential mortgage lending and servicing protocols applicable to the subject note and mortgage.

5. ILLEGAL CHARGES ADDED TO BALANCE: Plaintiff has charged and/or collected payments from Defendant 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.

6. FAILURE OF GOOD FAITH AND FAIR DEALING: UNFAIR AND UNACCEPTABLE LOAN SERVICING: Plaintiff intentionally failed to act in good faith or to deal fairly with the subject Defendant by failing to follow the applicable standards of residential single family mortgage servicing as described in these Affirmative Defenses thereby denying Defendant access to the residential mortgage servicing protocols applicable to the subject note and mortgage.

7. UNCLEAN HANDS/ESTOPPEL: The Plaintiff comes to Court with unclean hands and is prohibited by reason thereof from obtaining the equitable relief of foreclosure from this Court as set forth in the Defendant’s statement of facts contained hereinabove and incorporated herein. The Plaintiffs’ unclean hands result from the Plaintiffs intentional and reckless failure to properly service this mortgage pursuant to the applicable federal regulations and the contract between the parties before filing this foreclosure action. Plaintiff intentionally failed to offer Defendant access to the special default loan servicing for financially troubled borrowers that the applicable federal law and the contract between

the parties requires including moratorium, forbearance and loan modification. 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 render acceleration unconscionable. This Court should refuse the acceleration and deny foreclosure because the Plaintiff has waived the right to acceleration or is estopped from doing so because of intentionally misleading and reckless conduct and unfulfilled conditions.

WHEREFORE, Defendant requests the Court dismiss the Plaintiffs’ Complaint with prejudice, and for all other relief to which this Defendant proves herself entitled including an award of reasonable attorney’s fees and costs in this action.

8. PLAINTIFF LACKS STANDING: U.S. Bank, N.A. is not the true owner of the claim sued upon, is not the real party in interest and is not shown to be authorized to bring this foreclosure action.

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Counterclaims

Count I - Declaratory and Injunctive Relief

1. This is Defendant’s action for declaratory and injunctive relief against the Plaintiff.

2. Defendant reasserts and alleges, as her statement of facts her Affirmative Defenses as stated above.

3. Defendant contends that the Plaintiff has no right to pursue this foreclosure because the Plaintiff has failed to first provide the Defendant with the special troubled home loan servicing of this FHA insured residential mortgage in accordance with the terms of the note and mortgage and the applicable federal regulations at 24 C.F.R. Part 203 Subpart C prior to filing this foreclosure action.

4. Defendant contends that she has a right to receive forbearance, mortgage modification, and other foreclosure prevention loan services from the Plaintiff pursuant to and in accordance with the federal regulations, the note and the mortgage before the commencement or initiation of this foreclosure action.

5. Defendant is in doubt as to her rights and status as a borrower under the National Housing Act and the above described federal regulations made applicable to and incorporated in the subject mortgage as a result of the Plaintiffs’ failure to service the subject loan pursuant to the mortgage, the note and the HUD regulations which are the applicable federal law and because the Defendant is now being subjected to this foreclosure action, all of which the Defendant contends are illegal acts and omissions of Plaintiff.

6. Defendant is being denied and deprived by Plaintiff of her right to access the special troubled mortgage servicing required under the federal statute and regulations and the subject note and mortgage.

7. Defendant is being illegally subjected to this foreclosure action, being forced to defend same, being charged illegal and predatory court costs and related fees and attorney fees, and is having her credit slandered and negatively affected, all of which constitute irreparable harm to this Defendant for the purpose of statutory injunctive relief pursuant to the Florida Declaratory Judgment Act.

7. As a proximate result of the Plaintiff’s unlawful actions, Defendant continues to suffer the irreparable harm described above for which monetary compensation is inadequate.

8. Defendant has a right to access the special troubled home loan servicing prescribed by the federal regulations and the mortgage contract which is being denied by the Plaintiff.

9. There is a substantial likelihood that Defendant will prevail on the merits of her

counterclaim.

WHEREFORE, Defendant requests the Court dismiss the Plaintiffs’ Complaint with prejudice, enter a judgment pursuant to Fla. Stat. 86 declaring that the Plaintiff provide Defendant with access to the special servicing provided in the applicable federal regulations and required by the mortgage contract and enjoining the Plaintiff from charging foreclosure fees and costs and from commencing or pursuing this foreclosure until such servicing is provided and for all other relief to which this Defendant proves herself entitled including an award of reasonable attorney’s fees and costs in this action.

COUNT III - Consumer Collections Act Violation

Defendant reasserts and alleges, as her statement of facts her Affirmative Defenses as stated above.

10. Defendant is a consumer and the obligation between the parties which is the debt owed pursuant to the subject note and mortgage is a consumer debt as defined in Fla. Stat. Section 559.55(1).

11. Fla. Stat. Section 559.72(9) provides: Prohibited Practices generally:

In collecting consumer debts, no person shall: (9) claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate

or assert the existence of some other legal right when such person knows that the right does not exist.

12. Plaintiff engaged and continues to engage in consumer collection conduct which violates Fla. Stat. Section 559.72(g) in the following and other particulars:

a. Plaintiff breached the mortgage contract and also continues to enforce this debt and pursue this foreclosure action even though the Plaintiff knows that no such right exists and this foreclosure action is threatening and premature because the Plaintiff has not serviced this federally insured home loan pursuant to or in compliance with the special foreclosure prevention loan servicing federal regulations made applicable to this loan be law and by the terms of the mortgage and note.

b. The Plaintiff continues to claim, attempt, and threaten to enforce this debt through acceleration and foreclosure when the Plaintiff knows that such conduct is premature and in bad faith because such right does not yet exist as Plaintiff has failed to meet the contractual and statutory conditions precedent to asserting its right to collect this home loan debt through foreclosure contained in the subject mortgage and in 12 U.S.C. 1710(a) and 24 C.F.R. Part 203 Subpart C. 13. Defendant, as a proximate result of Plaintiffs’ acts and conduct described above, has sustained economic damage for which the Defendant is entitled to compensation from the Plaintiff pursuant to Fla. Stat. Section 559.77.

WHEREFORE, Defendant requests this Court dismiss the Plaintiffs’ Complaint with prejudice and award this Defendant actual or statutory damages, whichever is greater, attorney’s fees and costs, and for all other relief to which this Court finds Defendant entitled.

COUNT IV: Breach of Fiduciary Duty

Defendant asserts and alleges her affirmative defenses as set forth hereinabove as her Statement of Facts herein.

14. Plaintiff owed Defendant a fiduciary duty and obligation under the subject note and mortgage and by operation of law to, among other things, act in good faith and in the best interest of Defendant by providing the defendant with the special troubled home loan servicing of this FHA insured residential mortgage in accordance with the terms of the note and mortgage and the applicable federal regulations at 24 C.F.R. Part 203 Subpart C prior to filing this foreclosure action.

15. Plaintiff failed, refused and/or neglected to carry out its contractual fiduciary obligations owed to Defendant in connection with the servicing of the subject federally insured home loan.

16. As a result of the Plaintiffs’ breach of its contractual and equitable fiduciary duty, Defendant has sustained monetary damage which includes having to defend this foreclosure and being charged illegal and predatory servicing charges, court costs and related fees and attorney’s fees, having her credit slandered and negatively affected.

WHEREFORE, Defendant requests this Court dismiss the Plaintiffs’ Complaint with prejudice and award this defendant judgment against the Plaintiff for her damages, for an award of attorney’s fees and for all other relief as the Court deems proper.

COUNT V: Breach of Obligations of Good Faith and Fair Dealing


17. Plaintiff owes defendant a duty implied in the note and mortgage to act in good faith to deal fairly with defendant by providing the defendant with the special troubled home loan servicing of this FHA insured residential mortgage in accordance with the terms of the note and mortgage and the applicable federal regulations at 24 C.F.R. Part 203 Subpart C prior to filing this foreclosure action.

18. Plaintiff materially breached its duties of good faith and fair dealing as described hereinabove proximately resulting in damage to defendant as described hereinabove.

WHEREFORE, Defendant requests this Court dismiss the Plaintiffs’ Complaint with prejudice and award this Defendant judgment against the Plaintiff for her damages, for an award of attorney’s fees and for all other relief as the Court deems proper.

COUNT VI: Breach of Contract


WHEREFORE, Defendant requests this Court dismiss the Plaintiffs’ Complaint with prejudice and award this Defendant judgment against the Plaintiff for her damages, for an award of attorney’s fees and for all other relief as the Court deems proper.

DEMAND FOR TRIAL BY JURY

Defendant hereby demands trial by jury.


I HEREBY CERTIFY that a copy of the foregoing has been furnished to Douglas C. Zahm, Attorney for Plaintiff, 18830 U.S. Highway, 19 North, Suite 300, Clearwater, FL. 33764 by U.S. Mail on this _______________________________.

JACKSONVILLE AREA LEGAL AID, INC.

_______________________________________

APRIL C. CHARNEY, Esquire

Attorney for the Defendant

Florida Bar Number 310425

126 West Adams Street

Jacksonville, FL 32202

Telephone: (904) 356-8371, x.373

Fax: (904) 356-8780

Email: [email protected]

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SAMPLE 2- ANSWER WITH AFFIRMATIVE DEFENSES, COUNTERLAIM,JURY TRIAL

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IN THE CIRCUIT COURT OF THE

FOURTH JUDICIAL CIRCUIT, IN AND

FOR DUVAL COUNTY, FLORIDA

CASE NO.:16-2007-CA-00852-XXXX-MA

DIVISION: CV-D

DEUTSCHE BANK NATIONAL TRUST COMPANY

Plaintiff,

vs.

ERICO LOGAN, ET AL,

Defendant.

______________________________/

DEFENDANTS ERICO LOGAN AND GLORIA BROOK’S ANSWER

AFFIRMATIVE DEFENSES; COUNTERCLAIMS AND DEMAND FOR JURY TRIAL

COME NOW, the separate Defendants and for their answer, affirmative defenses, counterclaims and demand for jury trial , state:

COUNT I

1. Denied that the plaintiff has stated a cause of action to reestablish a promissory note pursuant to F. S. 673.3091.

2. Admit execution of note, deny that the note was executed and delivered in favor of plaintiff or plaintiff’s assignor.

3. Denied. The plaintiff has not stated a cause of action to reestablish a promissory note pursuant to F. S. 673.3091.




7. Defendant admits that the plaintiff does not own the mortgage or the note, admits that the plaintiff does not hold the note; however that plaintiff does not have legal possession of and cannot obtain possession of the subject note or determine its whereabouts. The plaintiff has not stated a cause of action to reestablish a promissory note pursuant to F. S. 673.3091.

8. Denied.

9. Denied and move to strike on account of Paragraph 9 of the plaintiff’s complaint does not contain a fact allegation.

10. Denied. The plaintiff has not stated a cause of action to foreclose a mortgage.

11. Admit.

12. Denied.

13. Admited.

14. Denied.

15. Denied.

16. Denied.

17. Denied.

18. Denied.

19. Denied.

20. Denied.

21. Denied.

22. Defendant denies that this plaintiff has stated a cause of action for foreclosure because on the date this lawsuit was filed the plaintiff was not the true owner of the claim sued upon; is not the real party in interest and is not shown to be authorized to bring this foreclosure action.

23. Defendants request the court dismiss this action pursuant to Rules 1.210(a) and 1.140(7) of the Florida Rules of Civil Procedure because it appears on the face of the complaint and the documents attached to the plaintiff’s March 12, 2007 notice of filing that a person other than the Plaintiff is the true owner of the claim sued upon on the date this action was commenced and that the Plaintiff was not the real party in interest at the commencement of this action, had no interest in the subject mortgage and note at the date on which the subject complaint for foreclosure was filed and is not shown to be authorized to bring this foreclosure action.

24. This action was commenced on January 29, 2007, but the assignment upon which the plaintiff is relying to support its claims is based on an assignment dated February 5, 2007, which post dates the filing of the complaint.

25. Additionally, the plaintiff has filed a separate assignment that conflicts with the February 5, 2007 assignment because on August 14, 2007, the date of the purported second assignment, the assignor had already transferred its interest in the subject mortgage and note to another entity and further because there was a lack of any consideration for the August 14, 2007 assignment.

26. The filing of these two assignments by the plaintiff, neither of which support the plaintiff’s claim of ownership of the subject mortgage on the date this foreclosure was filed, are a sham and a fraud on the court.

27. Plaintiff came into the this court alleging that it owned the subject loan on January 29, 2007, the date this action was commenced when the plaintiff was fully aware that was not true. This is fraud on the court.

28. Fla.R.Civ.P. Rule 1.130(a) requires a Plaintiff to attach copies of all bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought to its complaint.

29. Although the plaintiff alleges in its complaint that it is the owner of the promissory note and the mortgage that are the subject of this foreclosure action, the note and mortgage and assignments attached to the plaintiff’s complaint and to the plaintiff’s notice of filing conflict with these allegations and therefore the contents of actual mortgage and note cancel out the inconsistent and conflicting assignments and allegations as to the ownership of the note and mortgage at the commencement of this action.

30. When exhibits are inconsistent with the plaintiff’s allegations of material fact as to who the real party in interest is, such allegations cancel each other out. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA 1983).

31. Plaintiff was not the real party in interest on the date this action was commenced and is not shown to be authorized to bring this action.

32. Because the facts revealed by the exhibits attached to the plaintiff’s complaint and in the Plaintiff’s notice of filing are inconsistent with Plaintiff’s allegations as to ownership of the subject note and mortgage, those allegations are

neutralized and Plaintiff’s complaint is rendered objectionable. Greenwald v. Triple D Properties, Inc., 424 So.2d 185,187 (Fla. 4th DCA 1983).

AFFIRMATIVE DEFENSES

1. FAILURE OF CONTRACTUAL CONDITION PRECEDENT: NO NOTICE OF DEFAULT: Plaintiff failed to provide Separate Defendants 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, Separate Defendants have been denied a good faith opportunity, pursuant to the mortgage and the servicing obligations of the Plaintiff, to avoid acceleration and this foreclosure.

2. NO HUD COUNSELING NOTICE: Plaintiff failed to comply with the foreclosure prevention loan servicing requirement imposed on Plaintiff pursuant to the National Housing Act, 12 U.S.C. 1701x(c)(5) which requires all private lenders servicing non-federally insured home loans, including the Plaintiff, to advise borrowers, including this separate Defendant, of any home ownership counseling Plaintiff offers together with information about counseling offered by the U.S. Department of Housing and Urban Development. The U.S. Department of Housing and Urban Development has determined that 12 U.S.C. 1701x(c)(5) creates an affirmative legal duty on the part of the Plaintiff. Plaintiff’s non-compliance with the law’s requirements is an actionable event that makes the filing of this foreclosure premature based on a failure of a statutory condition precedent to foreclosure which denies Plaintiff’s ability to carry out this foreclosure. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff demonstrates compliance with 12 U.S.C. 1701x(c)(5).

3. PLAINTIFF FAILED TO COMPLY WITH APPLICABLE POOLING AND SERVICING AGREEMENT LOAN SERVICING REQUIREMENTS: Plaintiff failed to provide separate Defendants with legitimate and non predatory access to the debt management and relief that must be made available to borrowers, including this Defendant pursuant to and in accordance with the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission that controls and applies to the subject mortgage loan. Plaintiff’s non-compliance with the conditions precedent to foreclosure imposed on the plaintiff pursuant to the applicable pooling and servicing agreement is an actionable event that makes the filing of this foreclosure premature based on a failure of a contractual and/or equitable condition precedent to foreclosure which denies Plaintiff’s ability to carry out this foreclosure.

a. Defendants assert that the special default loan servicing requirements contained in the subject pooling and servicing agreement, to be filed in pertinent part and which is on file at: http://www.secinfo.com , are incorporated into the terms of the mortgage contract between the parties as if written therein word for word and the defendants are entitled to rely upon the servicing terms set out in that agreement.

b. Alternatively or additionally, the defendants are third party beneficiaries of the Plaintiff’s pooling and servicing agreement and entitled to enforce the special default servicing obligations of the plaintiff specified therein.

c. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff demonstrates compliance with the foreclosure prevention servicing imposed by the subject pooling and servicing agreement under which the plaintiff owns the subject mortgage loan.

d. The Plaintiff failed, refused or neglected to comply with prior to the commencement of this action with the servicing obligations specifically imposed on the plaintiff by the PSA in many particulars, including, but not limited to:

1. Plaintiff failed to service and administer the subject mortgage loan in compliance with all applicable federal state and local laws.

2. Plaintiff failed to service and administer the subject loan in accordance with the customary an usual standards of practice of mortgage lenders and servicers.

3. Plaintiff failed to extend to defendants the opportunity and failed to permit a modification, waiver, forbearance or amendment of the terms of the subject loan or to in any way exercise the requisite judgment as is reasonably required pursuant to the PSA.

e. Plaintiff’s failure to meet the servicing obligations imposed by the PSA cause the filing by plaintiff of this foreclosure to be in premature, in bad faith and a breach by plaintiff of its obligation to defendants implied in the mortgage contract and as specified in writing in the PSA, to act in good faith and to deal fairly with defendants.

f. Instead, plaintiff’s servicing failures as set forth herein render plaintiff’s actions in filing this premature foreclosure to be in bad faith and not acceptable loan servicing under the written contracts between the parties which include the mortgage, the PSA incorporated therein or by which defendants are third party beneficiaries thereof and the promissory note.

g. Plaintiff intentionally failed to act in good faith or to deal fairly with these Defendants by failing to follow the applicable standards of residential single family mortgage lending and servicing as described in these Affirmative Defenses thereby denying these Defendants access to the residential mortgage lending and servicing protocols applicable to the subject note and mortgage.

4. 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.

5. FAILURE OF GOOD FAITH AND FAIR DEALING: UNFAIR AND UNACCEPTABLE LOAN SERVICING: Plaintiff intentionally failed to act in good faith or to deal fairly with the subject Defendants by failing to follow the applicable standards of residential single family mortgage servicing as described in these Affirmative Defenses thereby denying Defendant s access to

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SAMPLE 2- (continued)

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the residential mortgage servicing protocols applicable to the subject note and mortgage.

6. UNCLEAN HANDS: The Plaintiff comes to court with unclean hands and is prohibited by reason thereof from obtaining the equitable relief of foreclosure from this Court. The Plaintiff’s unclean hands result from the Plaintiff’s improvident and predatory intentional failure to comply with material terms of the mortgage and note; the failure to comply with the default loan servicing requirements that apply to this loan, all as described herein above. 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 render acceleration unconscionable. This court should refuse the acceleration and deny foreclosure because Plaintiff has waived the right to acceleration or is estopped from doing so because of misleading conduct and unfulfilled contractual and equitable conditions precedent.

WHEREFORE, Defendants demands the Plaintiff’s complaint be dismissed with prejudice and for fraud on the court, and for their attorney’s fees and costs and for all other relief to which this Court finds Defendants entitled.

7. PLAINTIFF LACKS STANDING: DEUTSCHE BANK NATIONAL TRUST COMPANY is not the true owner of the claim sued upon, is not the real party in interest and is not shown to be authorized to bring this foreclosure action.

COUNTERCLAIMS

COUNT I: DECLARATORY AND INJUNCTIVE RELIEF

1. This is an action for declaratory and injunctive relief against the Plaintiff.

2. Plaintiff failed to provide Separate Defendants with a Notice of Default and Intent to Accelerate as required by and/or that complies with Paragraph 22 of the subject mortgage.

3. Plaintiff failed to comply with the foreclosure prevention loan servicing requirement imposed on Plaintiff pursuant to the National Housing Act, 12 U.S.C. 1701x(c)(5) which requires all private lenders servicing non-federally insured home loans, including the Plaintiff, to advise borrowers, including this separate Defendant, of any home ownership counseling Plaintiff offers together with information about counseling offered by the U.S. Department of Housing and Urban Development.

4. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff demonstrates compliance with 12 U.S.C. 1701x(c)(5).

5. Plaintiff failed to provide separate Defendants with legitimate and non predatory access to the debt management and relief that must be made available to borrowers, including this Defendant pursuant to and in accordance with the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission that controls and applies to the subject mortgage loan.

6. Plaintiff’s non-compliance with the conditions precedent to foreclosure imposed on the plaintiff pursuant to the applicable pooling and servicing agreement is an actionable event that makes the filing of this foreclosure premature based on a failure of a contractual and/or equitable condition precedent to foreclosure which denies Plaintiff’s ability to carry out this foreclosure.

7. The special default loan servicing requirements contained in the subject pooling and servicing agreement are incorporated into the terms of the mortgage contract between the parties as if written therein word for word and the defendants are entitled to rely upon the servicing terms set out in that agreement.

8. Defendants are third party beneficiaries of the Plaintiff’s pooling and servicing agreement and entitled to enforce the special default servicing obligations of the plaintiff specified therein.

9. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff demonstrates compliance with the foreclosure prevention servicing imposed by the subject pooling and servicing agreement under which the plaintiff owns the subject mortgage loan.

10. The section of the Pooling and Servicing Agreement (PSA) is a public document on file and online at http://www.secinfo.com and the entire pooling and servicing agreement is incorporated herein.

11. The Plaintiff failed, refused or neglected to comply, prior to the commencement of this action, with the servicing obligations specifically imposed on the plaintiff by the PSA in many particulars, including, but not limited to:

a. Plaintiff failed to service and administer the subject mortgage loan in compliance with all applicable federal state and local laws.

b. Plaintiff failed to service and administer the subject loan in accordance with the customary an usual standards of practice of mortgage lenders and servicers.

c. Plaintiff failed to extend to defendants the opportunity and failed to permit a modification, waiver, forbearance or amendment of the terms of the subject loan or to in any way exercise the requisite judgment as is reasonably required pursuant to the PSA.

12. The Plaintiff has no right to pursue this foreclosure because the Plaintiff has failed to provide servicing of this residential mortgage loan in accordance with the controlling servicing requirements prior to filing this foreclosure action.

13. Defendants have a right to receive foreclosure prevention loan servicing from the Plaintiff before the commencement or initiation of this foreclosure action.

14. Defendants are in doubt regarding their rights and status as borrowers under the National Housing Act and also under the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission. Defendants are now subject to this foreclosure action by reason of the above described illegal acts and omissions of the Plaintiff.

15. Defendants are being denied and deprived by Plaintiff of their right to access the required troubled mortgage loan servicing imposed on the plaintiff and applicable to the subject mortgage loan by the National Housing Act and also under the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission.

16. Defendants are being illegally subjected by the Plaintiff to this foreclosure action, being forced to defend the same and they are being charged illegal predatory court costs and related fees, and attorney fees. Defendants are having their credit slandered and negatively affected, all of which constitutes irreparable harm to Defendants for the purpose of injunctive relief.

17. As a proximate result of the Plaintiff’s unlawful actions set forth herein, Defendants continue to suffer the irreparable harm described above for which monetary compensation is inadequate.

18. Defendants have a right to access the foreclosure prevention servicing prescribed by the National Housing Act and under the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission which right is being denied to them by the Plaintiff.

19. These acts were wrongful and predatory acts by the plaintiff, through its predecessor in interest, and were intentional and deceptive.

20. There is a substantial likelihood that Defendants will prevail on the merits of their counterclaims.

WHEREFORE, Defendants request the Court dismiss the Plaintiff’s complaint with prejudice, enter a judgment pursuant to Fla. Stat. 86 declaring that the Plaintiff is legally obligated to provide the Defendants with access to the special troubled loan servicing prescribed by the National Housing Act and under the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission and enjoining the Plaintiff from charging foreclosure fees and costs and from commencing or pursuing this foreclosure until such servicing is provided to this Defendant, for attorney’s fees and for all other relief to which Defendant proves themselves entitled.

COUNT II: ILLEGAL CONSUMER COLLECTION

Defendants reassert and reallege, as their Statement of Facts, paragraphs 2 through 20, inclusive as set out in Count I of these counterclaims.

22. Defendants are consumers and the obligation between the parties which is the debt owned pursuant to the subject note and mortgage is a consumer debt as defined in F. S. Section 559.55(1).

23. Plaintiff has engaged in consumer collection conduct which amounts to a violation of F.S. Section 559.72(9) as set out below and Defendants, as a proximate result thereof, have sustained economic damages for which the Defendants are entitled to compensation from the Plaintiff, pursuant to F.S. Section 559.77.

24. Plaintiff’s collection activities described herein violated F.S. 559.72(9) in that the Plaintiff is claiming, attempting and threatening to collect and enforce this consumer mortgage debt by this foreclosure action when the Plaintiff knows that the right to pursue foreclosure does not exist.

25. These acts were wrongful and predatory acts by the plaintiff, through its predecessor in interest, and were intentional and deceptive.

26. Additionally, the reason the Plaintiff does not have a legal right to pursue this foreclosure is because the Plaintiff has failed to first comply with the foreclosure prevention loan servicing obligations imposed on Plaintiff prescribed by the National Housing Act and under the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission.

27. These foreclosure prevention loan servicing obligations are imposed on the Plaintiff pursuant to the National Housing Act, 12 U.S.C. Section 1710(a) and the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission.

28. The Plaintiff is claiming, attempting and threatening to collect fees and charges including, but not limited to, 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 all of which are not authorized by or in conformity with the terms of the subject note and mortgage.

29. 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.

30. Plaintiff continues to claim, attempt, and threaten to enforce this mortgage debt through acceleration and foreclosure when the Plaintiff knows that such conduct is in bad faith because the Plaintiff has charged and collected money from defendants that they did not owe; forced defendants into deepening indebtedness and then failed to meet the contractual and statutory conditions precedent before filing this action to collect this consumer debt.

31. As a result of the Plaintiff’s failure to properly service this mortgage loan before filing this foreclosure action, Defendants have been damaged and Defendants seek to recover their actual or statutory damages from the Plaintiff under F.S. 559.77.

WHEREFORE, Defendants demand the Plaintiff’s complaint be dismissed with prejudice, for an award of damages in defendants’ favor and against the plaintiff for their actual or statutory damages whichever is greater and for their attorney’s fees and costs and for all other relief to which this Court finds Defendants entitled.

DEMAND FOR TRIAL BY JURY

Defendants hereby demands trial by jury.

WHEREFORE, Defendants demand the Plaintiff’s complaint be dismissed with prejudice for failure to state a cause of action and for fraud on the court, and for judgment against the plaintiff for their damages, for an award of attorney’s fees and costs and for all other relief to which this Court finds Defendants entitled.


The undersigned certifies that a true copy of this document has been mailed to Sean Moloney and to Linda Chelvam, Law Offices of Marshall C. Watson, P.A. 1800 N.W. 49th Street, Suite 120, Fort Lauderdale, FL 33309, Attorney for Plaintiff this ______________________________.

JACKSONVILLE AREA LEGAL AID, INC.

_______________________________ APRIL CARRIE CHARNEY, Esquire Fla. Bar No.: 310425

126 West Adams Street

Jacksonville, Florida 32202

Telephone: (904) 356-8371, ext.373

Facsimile: (904) 224-7050

[email protected]

Attorney for Defendants

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I FOUND A WINNING CASE - FLORIDA FORECLOSURE CASE MOTION TO DISMISS WAS GRANTED WITH PREJUDICE AND JUDGE REWARDS DEFENDANTS’ ATTORNEY FEE- 5 YEARS LITIGATION 42 ATTORNEY HOURS.

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DUVAL COUNTY CASE 16-20040CA-004918

BANK, OF NEW YORK, ACTING SOLELY IN ITS CAPACITY AS TRUS PLAINTIFF XXXX-XXX-XX-XXX-X XXXXX

WILLIAMS, PAULETTE, ET VIR, ET AL DEFENDANT XXXX-XXX-XX-XXX-X XXXXX

EQUICREDIT CORPORATIION TRUST,2001-2, PLAINTIFF XXXX-XXX-XX-XXX-X XXXXX

UNKNOWN SPOUSE OF PAULETTE WILLIAMS, DEFENDANT XXXX-XXX-XX-XXX-X XXXXX

AY AND ALL UNKNOWN PARTIES,CLAIMING BY, THRUOGH, UNDER, AND,AGAINST THE HEREIN NAMED INDIVIDUAL,DEFENDANT(S) WHO ARE NOT KNOWN TO,BE DEAD OR ALIVE, WHETHER SAID,UNKNOWN PARTIES MAY CLAIM AN,INTEREST AS SPOUSES, HEIRS,,DEVISEES, GRANTEES, OR OTHER,CLAIMANT, DEFENDANT XXXX-XXX-XX-XXX-X XXXXX

MERCURY FINANCE COMPANY OF FLORIDA, DEFENDANT XXXX-XXX-XX-XXX-X XXXXX

TENANT #1, DEFENDANT XXXX-XXX-XX-XXX-X XXXXX



TENANT #4 THE NAMES BEING,FICTITIOUS TO ACCOUNT FOR PARTIES,IN POSSESSION, DEFENDANT XXXX-XXX-XX-XXX-X XXXXX

Docket(s)

Image Effective Date Count Description

7/13/2004 COMPLAINT, NOTICE OF LIS PENDENS, SUMMONS ISSUED (5)

7/13/2004 COVER SHEET

7/19/2004 NOTICE OF LIS PENDENS OR 11935-2461 (1)

8/3/2004 SUMMONS RETURNED INDICATING SERVICE 7/15/04, TENANT #1

8/3/2004 SUMMONS RETURNED NOT SERVED TENANT #2

8/3/2004 SUMMONS RETURNED INDICATING SERVICE 7/19/04, MERCURY FINANCE CO. OF FLA.

8/3/2004 SUMMONS RETURNED NOT SERVED THE UNKNOWN SPSE OF PAULETTE WILLIAMS

8/3/2004 SUMMONS RETURNED INDICATING SERVICE 7/15/04, PAULETTE WILLIAMS

8/4/2004 MOTION TO DISMISS ATTY/DEFT

8/4/2004 REQUEST TO PRODUCE (P. WILLIAMS FIRST) TO THE BANK OF NEW YORK, 8/3/04

8/16/2004 NON-MILITARY AFFIDAVIT TENANT 1 (THEARIS HARVELL)

8/16/2004 MOTION FOR DEFAULT AND DEFAULT (ONE PAGE) TENANT 1 (THEARIS HARVELL) & MERCURY FINANCE COMP. OF FL.

8/24/2004 NOTICE OF FILING AMENDED AFFIDAVIT OF REASONALBLE ATT FEES

8/24/2004 AFFIDAVIT AS TO ATTORNEY’S FEES (AMENDED)ANDREW S.FORMAN,ESQ

8/25/2004 MOTION FOR SUMMARY JUDGMENT PLTF’S, INCLUDING A HRG,ETC ATY ANNE CORDELL

9/3/2004 NOTICE OF HEARING RM 204 OCT 1,04 9:30AM

9/28/2004 NOTICE OF CANCELLATION OF HEARING 10/1/04 AT 9:30A, RM. 204

10/4/2004 OBJECTION & MOTION CONTINUE HRG MOTION S.J. ETC, ATY/DEFT P WILLIAMS

10/11/2004 NOTICE OF HEARING 10/28/04 AT 9:30A, RM. 204

10/28/2004 NOTICE OF CANCELLATION OF HEARING RM 204 OCT 28,04 9:30AM/UPS GROUND

6/14/2005 NOTICE OF FILING COPY OF ASSIGNMENT OF MORTGAGE,ETC(3)/UPS

7/28/2005 NOTICE OF HEARING AUG.18,205 AT 10:35 AM

8/10/2005 MEMORANDUM IN SUPPORT OF DEFT MOTION TO DISMISS…..ATTY/DEFT

8/23/2005 ORDER GRANTING MOTION TO DISMISS COMPLAINT- PLTF HAS 20 DAYS TO REPLEAD

8/29/2005 MOTION FOR ATTORNEY’S FEES AND COSTS, PAULETTE WILLIAMS, ATT

9/15/2005 NOTICE OF FILING COPY OF AMND NOTICE OF LIS PENDENS AND ORIGINAL AMND MORT.

9/19/2005 RECVD AMENDED NOTICE LIS PENDENS / FWD TO RECORDING

9/22/2005 MOTION TO DISMISS AMEND.MORTGAGE FORECLOSURE COMPLAINT, PAULETTE WM’S/ATT

9/27/2005 NOTICE OF LIS PENDENS AMENDED, OR BK 12777 PG. 881 (1)

10/18/2005 NOTICE OF HEARING ON DEFT. PAULETTE WILLIAMS,ETC., 12/9/05 AT 2:10P

10/18/2005 NOTICE OF HEARING (AMND) ON DEFT P. WILLIAMS,ETC., 12/13/05 AT 2:20P

10/19/2005 NOTICE OF HEARING (AMENDED),ETC/DEC 13.05 2;20PM

11/3/2005 NOTICE OF CHGN OF LAW FIRMS/THE FL DEFAULT LAW GROUP,ETC/UPS

12/16/2005 ORDER GRANTING MOTION TO DISMISS AMENDED MORTGAGE FORECLOSURE COMPLAINT-PLTF HAS 20 DAYS

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7/12/2006 MOTION TO DISMISS BY DEFENDANT W/PREJ & FOR REASONABLE ATTYS FEES/PAULETTE WILLIAMS/ATTY

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7/24/2006 MOTION FOR LEAVE TO FILE COUNTERCLAIM, ETC., ATTY/P. WILLIAMS

7/27/2006 NOTICE OF HEARING 08/31/2006 10AM HON JOHNSON

7/28/2006 NOTICE OF FILING COPIES OF PLEADINGS FROM CASE 2006-1564-CA DIVISION CV-C

9/13/2006 NOTICE OF HEARING 09/26/2006 2:45PM RM 204 FED EX

9/26/2006 RESPONSE TO MOT TO DISMISS W/PREJ//PLTF/ATTY FED EX

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10/17/2006 ORDR GRNTING MOTION TO DISMISS WITH PREJUDICE RECVD- FWD TO RECD

10/17/2006 ORDER GRANTING DISMISSAL OF DEFT. PAULETTE WILLIAMS, OR BK 13595 PG. 1517 (2)

10/26/2006 RENEWED MOT FOR AWARD OF ATYS FEES & COSTS & MOT FOR ORDER DETERMINING ENTITLEMENT TO MULTIPLIER/PAULETTE WILLIAMS/ATY

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11/6/2006 NOTICE OF HEARING JAN.22,2007 AT 10:10 AM

1/19/2007 NOTICE OF HEARING (AMENDED)3/6/07 @ 2PM

3/7/2007 DEFT’S EXHIBIT #1- AGREEMENT FOR PROFESSIONAL SERVICES

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4/12/2007 ORDR GRNTING MT FOR ATTY’S FEES & COSTS & FOR MULTIPLIER RECVD- FWD TO FORECLOSURE CLERK

4/12/2007 ORDER GRANTING DEFEN MO/FOR ATTYY’S FEES AND COSR AND MULTIPLIER

4/12/2007 ORDER GRANT DEF MTN FOR ATTRNY FEE/COSTS, OR BK 13931 PG 477 (6)

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4/23/2007 MOTION FOR ENTRY OF FJ FOR ATTY’S FEES AND COSTS,ETC/ATT,DEFT

4/26/2007 NOTICE OF HEARING 05/03/2007 9:30AM RM 227

5/3/2007 FINAL JUDGMENT FOR ATTY’S FEES, ETC., OR 13958-1557 (2)

5/8/2007 MOTION FOR ORDER COMPELLING COMPLETION OF FORM 1.977/ATT,DEFT

5/8/2007 REQUEST TO PRODUCE

5/14/2007 NOTICE OF APPEAL BK 13979 PG 2362

5/21/2007 DCA ACKNOWLEDGEMENT RECEIPT 1D07-2626

5/22/2007 NOTICE OF APPEARENCE OF COUNSEL ERIC C REED ATTY FOR DEFTS FED EX

5/22/2007 DIRECTIONS TO CLERK

6/12/2007 DESIGNATION TO COURT REPORTER

6/29/2007 NOTICE OF FILING ORIG SUPERSEDEAS BOND FED EX

7/9/2007 BOND FILED, APPROVED & COPY PLACED IN FILE

7/12/2007 JOINT MOTION FOR SUBSTITUTION OF COUNSEL FOR PLTF/ MITCHELL ROTHMAN ESQ & JOHN DANNECKER ESQ FED EX

7/13/2007 ORDER GRANTING MOTION JOINT, FOR SUB OF COUNSEL FOR PLTF- SHUTTS & BOWEN

7/16/2007 COPY OF ORDER FROM DISTRICT COURT OF APPEAL APPLT. MO.FOR EXT.OF TIME FOR SERVICE OF INITIAL BRIEF

7/16/2007 GRANTED

7/18/2007 PROCEEDINGS BEFORE THE HON LANCE M. DAY, TAKEN 3/6/07

8/31/2007 COPY OF ORDER FROM DISTRICT COURT OF APPEAL APPLT MOTION FILED 8/23/07 SEEKING TO SUPPL.ROA GRANTED

9/14/2007 TRANS TO DCA: 1 VOL ROA, 1 VOL PRO, 1 EXH (07-2626)

9/17/2007 NOTICE OF FILING

4/14/2008 COPY OF ORDER FROM DISTRICT COURT OF APPEAL APPELLEE’S MOTION FILED 05/29/07 FOR ATTY FEES GRANTED

4/14/2008 MOTION APPELLANT’S MOTION FILED 11/15/07 FOR ATTY FEES DENIED

4/30/2008 MANDATE (AFFIRMED) BOOK 14481 PAGE 672-676

5/12/2008 MOTION (UNOPPOSED) TO RELEASE SUPERSEDEAS BOND/PLTF/ATTY FED EX

5/22/2008 ORDER GRANTING PLAINTIFF’S UNOPPOSED MOTION TO RELEASE SUPERSEDEAS BOND

6/4/2008 ORIGINAL SUPERSEDEAS BOND RETURNED TO ATTORNEY’S SHUTTS & BOWEN, P.A.

6/13/2008 ROA RETURNED FROM DCA (1D07-2626) 2 VOL 1 SUPPL. 1 EXH. STORED IN BOX 995

6/17/2008 NOTICE OF UNAVAILABILITY / NONAVAILABILITY JAMES A KOWALSKI JR.,ESQ./PAULETTE WILLIAMS

4/6/2009 NOTICE OF DISMISSAL OF COUNTERCLAIM ATTY/DEFT

4/13/2009 NOTICE OF LIS PENDENS (RELEASE) BOOK 14840 PAGE 1567-1568

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WAKE UP Posted 01/28/10 at 02:35 PM Reply with quote #17

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WE STOP PAYING ANYTHING AND EVERYTHING THE REASON WHY THEY HAVE THE BALLS TO PULL THIS OFF IS BECAUSE WE HAVEN'T BOYCOTTED YET. PEOPLE STILL PAY TAXES, BILLS, MORTGAGES

REMOVE THE BLOCKS FROM THE BASE OF THE PYRAMIDS AND THE ENSLAVING POWER THE PHAROHS HAVE OVER US WILL CRUMBLE & FALL

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THE NEXT STEP

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So far the Homeowner filed Motion to Dimiss and called the Judge clerk to schedule a Hearing at least in 3 months or more if possible. The Judge may dismiss the case with prejudice, bank can't file the lawwsuit anymore, Happy ending. Judge could dismiss the case without prejudice, bank refiles lawsuit in couple months, Homeowner will refile new Motion to Dissmiss , another merry go round. Sometimes the Judge denies Motion to Dismiss and gives Homeowner 10 or 20 days to file an Answer. Homeowner files Answer with Affirmative Defense with Jury Trial together with Discoveries. At any point of the lawsuit, Homeowner can go get a lawyer. The lawyer can file Amended Motion to Dismiss or Amended Answer. Homeowner can negotiate loan modification, loan forebearance, lower interest etc if they wish. Examine the Assignment, the rallonge and loan documents for frauds. The Bank may file

Motion to Strike Affirmative Defenses. Homeowner can file Motion to Compel if Bank refuses to produce documents requested.

Then at some point, the Bank will file Motion for Summary Judgment . Now it is the tough part. The Homeowner can file more discovery if necessary. Homeowner can depose the Bank, the Servicer etc. Then he has to file Motion to Oppose Summary Judgment before the Hearing date . An experienced lawyer is strongly recommended at this point. Unless the Homeowner knows to defend himself very well, he may lose the case at the hearing and the Juge will schedule the sale of the house. Try to negotiate with Plaintiff lawyer to delay the Hearing date and look for a good lawyer.

If Homeowner can't afford a lawyer, then file a Motion to Oppose Summary Judgment, an Affidavit and/or Memorandum of Law to Support Motion to Oppose Summary Judgement. Start to research on Bankruptcy options at the same time.

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SOME IDEAS TO FIGHT FORECLOSURE

Dawsonville, GA (PRWEB) February 10, 2010 -- A previously undetected title flaw has been discovered on many previously foreclosed properties. As the number of real estate foreclosures skyrockets, the odds are higher that a home you live in today, or at some point in the future may have had a foreclosure in its history. Even if the foreclosure has long since passed, a loophole in the way mortgages are recorded can create a serious title defect for future owners. Title analysis performed this month by AFX Title has detected this error to be common in random samples of properties it reviewed. "This could affect the property ownership of millions of homes nationwide" said David Pelligrinelli, of AFX Title. "The mortgage recording method which created this title flaw did not exist until recently. As title abstractors are just seeing this problem emerge now but a wave of title claims is coming over the next year or so."

The problem is created through a break in the chain of mortgage ownership. Until the 1980’s, most mortgages were loans between the homeowner and a bank, who lent the money directly. More recently, the mortgage financing system transformed into an international system of securitization, with mortgage lenders packaging their loans into securities, bought and sold by investors like stocks. These transactions even split individual mortgages into sections, where each loan could have parts owned by different investment banks.

The transfer of ownership in these mortgage backed securities (MBS) was done with contracts on the balance sheets of Wall Street investment banks, such as Morgan Stanley and Goldman Sachs. The company who originally appeared to make the loan was normally a retail lending company such as Countrywide or Lending Tree, who typically acted as a sales company, and sometimes remained contracted to service the loan.

In the event that the loan goes into foreclosure at a later date, the then-current owner of the loan files the foreclosure and sells the property to a new owner, often at auction. The land records would show a deed of transfer from the investment bank to the new owner. This creates a break in the chain of ownership of the mortgage rights. In many cases, the transfer of ownership of the mortgage loan has gone from the original lender, through several owners, and then to

the foreclosing bank, none of which is recorded on the property title history. Technically, the foreclosing bank has no recorded title rights to foreclose in the first place. Owners of the loan normally do not publicly record each of the transfers out of expediency, and cost. Filing a document of transfer (called an assignment) in the land records incurs a substantial fee paid to the county clerk.

Some delinquent homeowners have used this error to delay the foreclosure, forcing lenders to “produce the note.” In these cases, the bank has to go through the process of getting assignments to the foreclosing bank after the fact. However, the title repair process is not required however in the majority of cases when the homeowner does not contest the foreclosure.

This leaves the break in chain of title dormant in the property records, vulnerable to be contested in the future. A few largely overlooked cases have already been decided by courts on this issue. In Lowell MA, a judge invalidated the foreclosure of homes based on missing and out-of-order assignments (US Bank v Ibanez).

Unraveling the chain of title and clarifying ownership of loans will create challenges for the courts and legislative bodies in all states. In the meantime, homeowners and buyers should be aware of how this could affect their property title. There are reports that some title insurers are indicating that they will not insure for this title defect.

As a national provider of property title searches, AFX Title is seeing an increasing number of files where the chain of title has obvious gaps in the recorded mortgage assignments. According to Pelligrinelli, the issue is serious. “When running searches for clients, we are noticing that a significant number of previously foreclosed properties have unconnected chain of assignments in the mortgage history. This could represent a title defect which could technically affect ownership rights for future owner.”

Pelligrinelli adds that some lenders and government institutions are rushing to repair the titles on lender-owned properties as they discover them in their portfolio. This does not help individual owners who own properties previously foreclosed.

4closureFraud

http://www.4closureFraud.org

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Twix the Cat Posted 02/18/10 at 11:21 AM Reply with quote #20

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1.

I have submitted copies of mortgage assignments that I have found on this website as well as Livinglies...I looked for assignments with the same names as are on my documents...I just had a call returned yesterday from the Register of Deeds in Boston, MA(Suffolk Co) who agreed to send me certified copies of the transfers from his county, that have the same names as mine do in my Wisconsin mortgage transfers...

2. Does anyone have some advice on how to copy and paste these terrific pleadings in this thread, so they do not have the blue/ gray background...

thanks,

Tom

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PJ Posted 02/18/10 at 06:55 PM Reply with quote #21

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2 ANN, and all out there , is there a limit on the number and or time frame of QWR's a mortgage holder can submit to a "pretender lender" servicer, or aka ever shifting Foreclosing "agent". It seems to me that every day brings yet more evidence of perpetration of fraud on the American people and our system raising new question's to be answered and raised.

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LEGAL MEMORANDUM IN OPPOSITION TO

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

__________________________________________________ __

Atlantic City, NJ

WILLIAM J. BARNES, ESQ. (admitted pro hac vice)

On the Brief

LEGAL ARGUMENT

I. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

SHOULD BE DENIED AND SUMMARY JUDGMENT SHOULD BE ENTERED IN FAVOR OF THE DEFENDANTS ON THEIR COUNTERCLAIM

Plaintiff has filed a Motion for Summary Judgment which relies on factually inapplicable decisional law; ignores the threshold issue of legal standing; fails to justify the striking of Defendants contesting Answer; and purports to be supported by a Certification of counsel for Plaintiff which is not made on personal knowledge and which is in fact based on incompetent hearsay. Plaintiff has failed to demonstrate the absence of genuine issues of material fact and has failed sustain its burden to be entitled to the entry of summary judgment.

Plaintiff’s own submissions and admissions therein demonstrate that the Defendants are entitled to the entry of summary judgment on their Sixth Separate Defense and their Counterclaim as a matter of law, and pursuant to their Cross-Motion for Summary Judgment filed separately but simultaneously herewith.

Plaintiff relies on the holding of Somerset Trust Co. v. Sternberg, 238 N.J. Super 279 (Ch.Div. 1989) in alleged support of its request to strike the contesting answer of the Fairhurst Defendants. A close reading of the Sternberg opinion reveals that Plaintiff’s reliance is misplaced, as the cited portion plainly states that the “pattern” involves a situation where “the mortgagor fails to respond” [to the summary judgment motion]. It is of record that the Fairhurst Defendants have responded to Plaintiff’s summary judgment motion.

The second cited portion of the Sternberg opinion states that “many of the answers and defenses proffered are legally insufficient as they fail to challenge the essential elements of the mortgagee’s right to foreclosure and fail to interpose a validly recognized defense in foreclosure suits”. It is of record that the Defendants have challenged the Plaintiff’s very standing to foreclose and thus its right to seek the remedy of foreclosure ab initio and as set forth more fully herein.

Plaintiff’s view of the scope of Chancery litigation is as wrongfully narrow as that found by the court in Leisure Technology-Northeast, Inc. v. Klingbiel Holding Company, 137 N.J.Super. 353, 349 A.2d 96 (N.J. Super A.D. 1975), wherein it was held that “R.4:6-2 requires that every defense to an action ‘legal or equitable, in law or in fact” be asserted in an answer, and that one of the purposes of the adoption of the Judicial Article of the 1947 Constitution was to permit the resolution of all aspects of a controversy between parties to be resolved in a single forum, whether the claims be legal or equitable in nature. 137 N.J.Super. at 357. These defenses include what are termed as “germane” counterclaims in foreclosure actions. Such counterclaims are “germane” if they arise out of the subject matter of the mortgage transaction, and discovery is permitted on such counterclaims. 137 N.J.Super. at 358 (reversing order striking defendants’ first affirmative defense, severing counterclaim, and transferring to Law Division).

The sixth Separate Defense of the Defendants states that Plaintiff was not, at the time of the filing of the Complaint and in view of the admissions in paragraph 4(a) thereof, in possession of any legal interest in the mortgage sufficient to institute a foreclosure. The First Count of the Counterclaim of the Defendants requests the entry of a Declaratory Judgment for dismissal of the foreclosure complaint based on the absence of the necessary and proper proofs to satisfy the legal standing requirements to institute a foreclosure. The Second Count of the Counterclaim requests the entry of Injunctive Relief prohibiting the entry of a judgment of foreclosure and the sale, conveyance, or transfer of the real property the subject of this action based on the lack of legal standing of the Plaintiff/Counter-Defendant to institute a foreclosure. The Sixth Separate Defense and Counterclaim are “germane” to the foreclosure action as they arise out of the subject matter of the mortgage transaction, going to the threshold issue of the legal standing of the Plaintiff to institute this foreclosure action. As such, the contesting Answer should not be stricken; discovery should be permitted; and Plaintiff’s Motion for Summary Judgment should be denied.

Plaintiff has failed to cite a single case which precludes the assertion of an equitable counterclaim for declaratory and injunctive relief which challenges the very legal standing of a plaintiff to institute a foreclosure action, and has also failed to cite a single case which permits a plaintiff to institute a foreclosure action when it has no legal interest in the mortgage and note at the time of the filing of the foreclosure action. Plaintiff’s Motion for Summary Judgment should thus be denied as being unsupported by any decisional law on the specific facts of this case.

The Courts of New Jersey have apparently not addressed the specific factual situation in this case. In instances where there is no New Jersey case “on point”, the Courts of New Jersey have utilized opinions from other jurisdictions for guidance. (See, e.g., Greate Bay Hotel & Casino, Inc. v. City of Atlantic City, 264 N.J.Super. 213, 217-218, 624 A.2d 102 (N.J. Super L. 1993)(analysis of treatment of business trusts as distinct legal entities by various other jurisdictions including California, New York, and Michigan where no New Jersey case explicitly dealt with types of trusts in case); Gregory v. Allstate Insurance Company, 315 N.J.Super. 78, 82-83, 716 A.2d 573 (N.J.Super.L. 1997)(analyzing split of authority in jurisdictions which considered issue of whether victim of unintentional auto collision was covered by uninsured motorist coverage). The Courts of the State of New York have been repeatedly presented with the legal

standing issues in foreclosure actions raised in this case, and have consistently held that when there is no proof that the foreclosing party had the requisite legal interest in the mortgage and note at the time that it filed the foreclosure action that dismissal of the action was proper.

In mortgage foreclosure actions (as in all actions), the foreclosing party must have standing to bring the action:

Standing to sue is critical to the proper functioning of the judicial system. It is

a threshold issue. If standing is blocked, the pathway to the courthouse is blocked. …Standing to sue requires an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant’s request….If a plaintiff lacks standing to sue, the plaintiff may not proceed in the action.

IndyMac Bank v. Bethley, 2009 NY Slip Op 50186(U)(N.Y.Sup.Ct. 2/6/2009), citing Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY2d 801, 812 [2003], cert denied 540 US 1017 [2003]; Caprer v. Nussbaum, 36 AD3d 176, 181 [2d Dept 2006]; Stark v. Goldberg, 297 A2d 203 [1st Dept 2002].

Where there is no evidence that the plaintiff, prior to commencing a foreclosure action, is the holder of the mortgage and note or took physical delivery of the mortgage and note or that same were conveyed by written assignment, the plaintiff did not have standing to institute the action. New Century Mortgage Corporation v. Durden et al., 2009 NY Slip Op 50175(U) (N.Y. Sup. Ct. 2/2/09), citing Deutsche Bank Trust Co. Ams. V. Peabody, 20 Misc. 3d 1108A (Sup.Ct. Saratoga County 2008) and Countrywide Home Loans, Inc. v. Taylor, 17 Misc. 3d 595 (Sup.Ct. Suffolk County 2007) and additional cases cited therein.

A plaintiff has no foundation in law or fact to foreclose upon a mortgage in which the plaintiff has no legal or equitable interest, and where an assignment of the mortgage post-dates the filing of the complaint, the plaintiff does not have the requisite ownership interest at the time of filing. As a foreclosure of a mortgage may not be brought by one who has no title to it and absent a legally effective transfer of the debt, the (post-filing) assignment of the mortgage is a legal nullity. U.S. Bank National Association v. Kosak et al., 2007 NY Slip Op 51680(U)(N.Y. Sup.Ct. 9/4/2007), citing Katz v. East-Ville Realty Co., 249 AD2d 243, 672 NYS2d 308 [1st Dept 1998] and Kluge v. Fugazy, 145 AD2d 537, 536 NYS2d 92 [2d Dpet 1988].

In Bethley, the Court held that Plaintiff IndyMac lacked standing to foreclose on the mortgage and note as it did not own the mortgage and note on the day that the Complaint was filed. IndyMac, as Plaintiff has done here, attempted to assign the mortgage and note two days after filing the foreclosure action. In the instant case, Plaintiff’s own submissions demonstrate that Plaintiff did not own the note and mortgage on December 24, 2007 (the day that the Complaint was filed), having only [purportedly] come into such ownership, at the earliest, some three days thereafter, that being on

December 27, 2007 by virtue of the very Assignment attached as Exhibit “B” to the Plaintiff’s moving papers. As the subject Assignment was not even recorded by the Atlantic County Clerk until almost a year later on November 5, 2008, Plaintiff arguably had no interest in the mortgage until late 2008.

As such, Plaintiff lacked legal standing to institute this mortgage foreclosure action ab initio. This issue of material fact warrants not only the denial of Plaintiff’s Motion for Summary Judgment, but also supports the entry of summary judgment in favor of the Fairhurst Defendants on their Sixth Separate Defense and their Counterclaim.

In addition to the disputed issues of material fact set forth in the Defendants’ Statement of Material Facts filed separately but simultaneously herewith, the Defendants have propounded a First Request for Production, First Request for Admissions, and First Set of Interrogatories upon Plaintiff, none of which have been responded to as of the date of this Response. These discovery requests seek information as to the Plaintiff’s legal standing including the chain of title to the mortgage and note which are factual issues material to not only the Plaintiff’s claim but also the Counterclaim of the Defendants. As there is a dispute as to the absence of factual issues at this early stage of the proceedings where the case is not fully developed, summary judgment is inappropriate. Velantzas v. Colgate-Palmolive Company, Inc., 109 N.J. 189, 193, 536 A.2d 237 (N.J. 1987):

Generally, we seek to afford “every litigant who has a bona fide cause of action or defense the opportunity for full exposure of his case”, and “When “critical facts are peculiarly within the moving party’s knowledge,” it is especially inappropriate to grant summary judgment when discovery is incomplete.

109 N.J. at 193, citing United Rental Equip.Co. v. Aetna Life and Casualty Ins. Co., 74 N.J. 92, 99, 376 A.2d 1183 (1977)(citing Robins v. Jersey City, 23 N.J. 229, 240-41, 128 A.2d 673 (1957), and Martin v. Educational Testing Serv., Inc., 179 N.J. Super 317, 326, 431 A.2d 868 (Ch.Div.1981).

In cases where a suit is in an early state and not fully developed, the standard by which a court ought to review a judgment terminating it now is from the standpoint of whether there is any basis upon which the plaintiff should be entitled to proceed further. Velantzas, supra at 193, citing Bilotti v. Accurate Forming Corp., 39 N.J. 184, 193, 188 A.2d 24 (1963). As the Plaintiff herein did not have the legal standing to institute this foreclosure action ab initio, Plaintiff cannot proceed any further, and thus Plaintiff’s Motion for Summary Judgment must thus be denied.

Plaintiff also attempts to support its Motion for Summary Judgment with the Certification of Richard P. Haber, Esq., who is counsel for the Plaintiff and who is not an officer or director of the Plaintiff. The subject Certification is not made on personal knowledge, and admits that it is based on a “review of the computerized records of the plaintiff”. As the Certification is not based on personal knowledge, the statements in the Certification can only be based on information and belief.

Rule 1:6-6 requires that Certifications in support of Motions be made on personal knowledge. Personal knowledge excludes matters based on information and belief. See., e.g., Wang v. Allstate Ins. Co., 125 N.J. 2, 16 (1991); Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 153 (1988). The Haber Certification, which is based on a “review of computerized records” (which are per se incompetent hearsay) by someone without personal knowledge, is thus incompetent to support the Plaintiff’s Motion for Summary Judgment as a matter of law and New Jersey procedure.

The Haber Certification also makes reference to and attaches the Assignment (Exhibit “B” to the Certification). This Assignment, which constitutes an admission by the Plaintiff, is the very document demonstrating that Plaintiff had no legal interest or ownership in either the note or mortgage at the time that the Complaint was filed, and raises genuine issues of material fact as to when (if ever) Plaintiff came into any ownership rights of either the Note or the Mortgage. Plaintiff’s Motion for Summary Judgment must thus be denied, and summary judgment should be entered in favor of the Fairhurst Defendants on their Sixth Separate Defense and their Counterclaim.

CONCLUSION

Plaintiff has, by its very submissions, demonstrated that there are genuine issues of material fact as to when, if ever, Plaintiff came into any ownership interest in either the Note or Mortgage. Plaintiff’s submissions demonstrate that there is no genuine issue of material fact that Plaintiff did not have any legal interest in either the note or the mortgage at the time it filed this foreclosure action, and has thus demonstrated that it was without legal standing to institute this action. Summary judgment for Plaintiff is thus inappropriate.

Summary Judgment is also improper at this time given that discovery is incomplete. The Haber Certification, which consists of incompetent hearsay, is legally inadmissible and does not in any way support the entry of summary judgment for Plaintiff. If anything, the Haber Certification supports the entry of summary judgment in favor of the Defendants on their Sixth Separate Defense and their Counterclaim.

Plaintiff’s Motion for Summary Judgment must thus be denied, and summary judgment in favor of the Defendants on their Sixth Separate Counterclaim should be granted pursuant to the Cross-Motion for Summary Judgment filed by the Defendants.

Respectfully submitted,

(counsel)

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ann Posted 02/24/10 at 11:47 AM Reply with quote #23

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FREE APRIL CHARNEY AND OTHER FORECLOSURE DEFENSE MANUALS

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Know the Facts - Texas Pro Se Won

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Quote from Msfraud.org

(excerpt from pro se filed response)

CAUSE NO. 096 239885 09 (Tarrant County Texas, 96th District Court)

Deutsche Bank National Trust Company as Trustee in trust for the benefit of the Certificateholders for Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4 Application for Order for Foreclosure

1. General Denial - Defendant hereby enters a general denial as permitted by Rule 92 of the Texas Rules of Civil Procedure, and requests that Plaintiff be required to prove by sworn affidavit and by a preponderance of evidence: a.) that their allegations are truthful representations; b.) that their action has merit; c.) that they are the true and lawful party in interest - the holder in due course of a valid debt obligation signed by Defendant Geoffrey Anson Wilner; d.) that their alleged evidence is not a product of or prelude to fraud, e.) and that they have legal standing to lawfully invoke the jurisdiction of this Honorable Court.

2. Plaintiff lacks standing to invoke TRCP 735 to foreclose - Defendant hereby disputes the application of the Texas Rules of Civil Procedure, Rule 735, by the plaintiffs. Defendant alleges that there exists a genuine attempt by the plaintiffs to deceive. Defendant is supplying all the necessary Facts below (no.3 through 39 with detailed explanation of each offense) to prove the following: In an attempt to collect a non valid debt obligation, the plaintiffs committed irreparable fraud by [a] not filing the required notice of assignments as required by the Texas Property Code. (See attached exhibit M – Required Assignments chart - see details below) [b] manufacturing and filing a fraudulent notice of assignment and furnishing it as proof to the defendant of their rights as holder or holder in due course with rights to enforce (See attached exhibit P - package received from Codilis & Stawiarski, P.C. 8/20/09 - see details below). [c] deliberately withholding that same notice of assignment from this court to manipulate and deceive in an attempt to conceal from this court a fraudulent act (See attached exhibit T - package received from Codilis & Stawiarski, P.C. 9/9/09 - see details below). [d] not complying with the Fair trade Collections and Practices Act rules and regulations by not supplying the appropriate information to satisfy the dispute letter (See attached exhibit R - complaint to FTC and exhibit I - Why the Original chart - see details below). [e] violating Florida Statutes – Notary Public laws by creating a fraudulent document and filing it with Tarrant County land records office (See attached exhibit N - complaint to Florida notary section - see details below). [f] disregarding the rules and regulations of their Pooling and Servicing Agreement s and Prospectuses by filing inaccurate reports with the Securities and Exchange Commission (see details below) [g] ignoring The Securities Act of 1933 (see details below). [h] violating Texas Business and Commerce codes (see details below). [i] violating Texas Property codes (see details below). Plaintiffs request this Honorable Court grant foreclosure - despite clear and convincing evidence that Plaintiff is not entitled to the relief sought. That as a result of the plaintiffs fraudulent actions and inactions they have no standing to evoke the jurisdiction of this court and that they will never be able to obtain the jurisdiction of this court, therefore this Honorable Court lacks jurisdiction to hear this case at hand and should dismiss this case with prejudice.

FACTS

Plaintiff lacks standing as they are not holder in due course with rights to enforce.

3. Plaintiffs are claiming defendant’s indebtedness through a promissory note allegedly held by Deutsche Bank National Trust Company as Trustee in trust for the benefit of the Certificateholders for Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4 and Deutsche Bank National Trust Company and are threatening to foreclosure on the defendant ’s property and primary residence. See attached exhibit A

4. A plaintiff “bears the burden of demonstrating standing and must plead its components with specificity.” Coyne, 183 F. 3d at 494; Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982). Should Plaintiffs fail to prove this condition precedent, this Court ha s no discretionary function but to stop them at the gate and dismiss the action.

5. Proof of Signatures and Status as Holder in Due Course - Defendant claims Plaintiffs are without legal authority to enforce foreclosure and so challenges the validity of the Defendant’s signature on the alleged debt obligation Pursuant to the Texas Business and Commerce Code Sections 3.308 (a) “Proof of Signatures and Status as Holder in Due Course“ and 3.401 (a) (1) “Signature” relating relevant to the validity of the defendant’s signature on the alleged debt obligation being brought before this court; defendant does admit that he signed a debt obligation but the alleged debt obligation in question brought before this court is not the same debt obligation that the defendant entered into. See attached exhibit L

6. The alleged debt obligation in question, as identified by Codilis & Stawiarski, P.C. and being brought before this court by the plaintiffs, stating that American Home Mortgage Servicing Inc. and Option One Mortgage Company and Deutsche Bank National Trust Company as Trustee in trust for the benefit of the Certificateholders for Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4 and Deutsche Bank National Trust Company are proper parties entitled to payments, is fraudulent, misleading and patently false. See attached exhibits A and C /D206085073 - Deed of Trust

7. Defendant denies that any obligation is owed to either Deutsche Bank National Trust Company as Trustee in trust for the benefit of the Certificateholders for Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4 or Deutsche Bank National Trust Company. Validity of Fraudulently Created Documents

8. As noted in the transcript of the MEETING OF THE TASK FORCE ON JUDICIAL FORECLOSURE RULES November 7, 2007, (note pages 27, 28 and 33), as found on the

Supreme Court of Texas web site (http://www.supreme.courts.state.tx.us/jfrtf/pdf/110707transcript.pdf), makes issue with, addresses and discloses the same fraudulent practices, Defendant alleges are taking place in this instant case. See attached exhibit G

9. Defendant has therefore been required to expend time and effort to defend an action that has no legal basis to support it. A Broken Chain of Assignments renders the “Deed of Trust” Void and Unenforceable under UCC 3-201, 3-204 & 3-302 and as such no triggering of the foreclosure clause in the “Deed of Trust” is possible.

The Prospectus

10. Prospectus Definitions : Trustee/Owner/Holder - As defined by the Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4 Prospectus ; (1) Deutsche Bank National Trust Company as Trustee is of Trustee status for the benefit of the Certificateholders, (2) the Certificateholders were the reputed Owner of this alleged instrument (3) and Deutsche Bank National Trust Company as Custodian for the benefit of the Certificateholders was the reputed Holder of the alleged debt obligation in question. See attached

exhibit F.

11. Prospectus Definitions : Separate Entities - As defined by the Argent securities Inc. 2006- W4 Asset-Backed Pass- Through Certificates, Series 2006-W4 Prospectus , Argent Mortgage Co. (originator) and Argent Securities Inc. (depositor), are two separate entities, as well as Deutsche Bank National Trust Company as Trustee for Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4, and Deutsche Bank National Trust Company as Custodian for Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4, are two separate entities.

The Pooling and Servicing Agreement

12. Conveyance of Mortgage Loans and the Pooling and Servicing Agreement - Further, the Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4 Pooling and Servicing Agreement Section 2.01 “Conveyance of Mortgage Loans”, defines the process and provides the forms for enforcing foreclosure, by the Master Servicer, with very specific rules for

recording assignments “in the appropriate public office for real property records”, from the Custodian to the Trustee and no such filings were recorded.

13. Validity of Unrecorded Instrument and the Pooling and Servicing Agreement - And pursuant to Argent securities Inc. 2006-W4 Asset-Backed Pass-Through Certificates, Series 2006-W4 Pooling and Servicing Agreement Section 2.01 “Conveyance of Mortgage Loans”, the Master Servicer is required to record all notices of assignment to any of the above, and by failing to record such notices of assignment in Tarrant County to the alleged debt obligation in question, have created a “defective chain of assignments”, with blatant disregard of the Texas property Code Sec.13.001 (a) “Validity of Unrecorded Instrument”, as verified with a recent title search. See attached exhibits C,

E, F and D

15. Validity of Unrecorded Instrume nt and Texas Law - Texas Property Code Section 13.001 (a) “Validity of Unrecorded Instrument” requires that each notice of assignment to the debt obligation in question referenced within the original deed of trust filed in Tarrant County records office # D206085073 on March, 26, 2006, be acknowledged, sworn to, or proved and filed for record as required by law. Research however, indicates that a notice of assignment from Argent Mortgage Co. to Argent Securities Inc. of the alleged debt obligation in question, should have been recorded in Tarrant County somewhere on or before the Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4 “cutoff date”, April 1, 2006, and no such records were found, as evidenced with the title search thereby exposing a blatant violation of this code. This fact along with all the above mentioned facts renders the alleged debt obligation in question, referenced within the original deed of trust filed with Tarrant County records office # D206085073 on March, 26, 2006, null and void. See attached exhibits C, H and M.

Defective Notary and The Foreclosure Mill

16. He’s Just a Notary - The notice of assignment # D209045468recorded in Tarrant County on February 19, 2009 from Argent Mortgage Co. to Deutsche Bank National Trust Company as Trustee for Argent securities Inc. Asset-Backed Pass-Through Certificates, Series 2006-W4 (See attached exhibit O), in violation of Florida Notary laws, states that Brian Bly is the “VICE PRESIDENT of CITI RESIDENTIAL LENDING” is fraudulent. Evidence however has revealed in fact that Brian Bly is registered with the Florida Department of State Division of Corporations under Notary ID #1194546, Notary commission # DD691055, and lists Bryan Bly's current office address as the same as Nationwide Title Clearing, Inc., 2100 Alt 19 North, Palm Harbor, FL 34683. See attached exhibit J - Assignment Fraud.

17. The Foreclosure Mill - Bryan Bly has signed many other county record filings exposing some of Bryan Bly’s other bogus titles as well as his service as a Notary Public for Nationwide Title Clearing Inc. in violation of Florida Notary laws. Some of these other filings and a news publication describing this process are incorporated herein by reference for all purposes. See attached exhibits J and O.

18. Person Entitled to Enforce Instrument and Limited Power of Attorney - The Limited Power of Attorney assignment # D207376789 recorded in Tarrant County on October 22, 2007 (See attached exhibit K), as used and noted within the notice of assignment # D209045468 recorded in Tarrant County on February 19, 2009 from Argent Mortgage Co. to Deutsche Bank National Trust Company as Trustee for Argent securities Inc. Asset-Backed Pass-Through Certificates, Series 2006- W4 (See attached exhibit O), does not give Brian Bly, Option One Mortgage Company or Nationwide Title Clearing, Inc. the legal authority to execute any action or the right to file documentation that would affect the defendant’s right of ownership as noted in the Deed of Trust filed with Tarrant County records office # D206085073 on March, 26, 2006, and pursuant to the Business and Commerce Code Sec. 3.301 “Person Entitled to Enforce Instrument ”, therefore is not a "Person entitled to enforce” the alleged debt obligation in question. See attached exhibits J, O and K.

19. Nationwide Title Clearing Inc. - Brian Bly’s true place of employment at that time is Nationwide Title Clearing Inc., as a Notary Public, and the Limited Power of Attorney assignment #D207376789 recorded in Tarrant County on October 22, 2007, as defined within, fails to transfer power or title. Therefore the statement above is misleading, deceptive and fraudulent. See attached exhibit J

20. Lies and Deceit - On the notice of assignment # D209045468 recorded in Tarrant County on February 19, 2009 from Argent Mortgage to Deutsche Bank National Trust Company as Trustee for Argent securities Inc. Asset-Backed Pass-Through Certificates, Series 2006-W4 (See attached exhibit O), Bobbie Jo Stoltd (Florida State Notary Public, Commission # DD731909, indicated therein), states and swears that Brian Bly is “personally known to me to be the VICE PRESIDENT of CITI RESIDENTIAL LENDING INC., AS ATTORNEY IN FACT FOR ARGENT MORTGAGE COMPANY, LLC”. See attached exhibits J, O and K.

21. Fraudulent Filing and Florida Law - Bobbie Jo Stoltd, pursuant to Title X, Chapter 117.05 (5) “Use of notary commission” and 117.105 “False or fraudulent acknowledgments” of the Florida Statutes, by notarizing notice of assignment # D209045468 recorded in Tarrant County on February 19, 2009 from Argent Mortgage to Deutsche Bank National Trust Company as Trustee for Argent securities Inc. Asset-Backed Pass-Through Certificates, Series 2006-W4 (See attached exhibit O), may be found guilty of a felony of the third degree in the State of Florida. See attached exhibits J, O and K.

22. A formal complaint to the Florida Governor’s Office Notary Section has been filed. See attached exhibit N.

23. Fraudulent Filing of Financing Statement and Texas Law - Under the Texas Business and Commerce code Sec. 9.5185 (a) (2) “Fraudulent Filing” and the Texas Penal Code Sec. 37.101 (a) (2) “Fraudulent Filing of Financing Statement”, by notarizing notice of assignment # D209045468 recorded in Tarrant County on February 19, 2009 from Argent Mortgage to Deutsche Bank National Trust Company as Trustee for Argent securities Inc. Asset-Backed Pass-Through Certificates, Series 2006- W4 (See attached exhibit O), Bobbie Jo Stoltd may be found guilty of a felony of the third degree in the State of Texas, thereby rendering the notice of assignment # D209045468 defective, invalid and void. See attached exhibits J, O and K.

24. Transfer of Instrument; Rights Acquired by Transfer - The fraudulent act of creating an unlawful document, such as the one created by the hands of Bryan Bly, has rendered this notice of assignment, # D209045468 (See attached exhibit O), defective and pursuant to the Texas Business and Commerce Code Sec. 3.203 (b) “Transfer of Instrument; Rights Acquired by Transfer”, the transferee, Deutsche Bank National Trust Company as Trustee for Argent securities Inc. Asset-Backed Pass-Through Certificates, Series 2006-W4, cannot acquire rights of a holder in due course and therefore does not have the rights to enforce. See attached exhibits J and O.

The Fair Debt Collection Practices Act

25. Validation of debts - Defendant responded to plaintiffs’ “NOTICE OF ACCELERATION”, with requests to “view the alleged original paper promissory note with all assignments and allonges showing a complete chain of assignments” and to identify the true owner and holder of the alleged debt instrument. Plaintiffs’ reply is in violation of the Fair Debt

Collection Practices Act, § 809 (b) “Validation of debts” – 15 USC 1692g, by their failure to include the information requested. (See attached Exhibits B, I and P) Plaintiffs are in possession of Defendant’s second

letter informing them of their non compliance. (See attached Exhibit Q) 26. Furnishing certain deceptive forms and Federal Rules - Pursuant to the Fair Debt Collection Practices Act, and in violation of § 812 “Furnishing certain deceptive forms” – 15 USC 1692j, the notice of assignment # D209045468 recorded in Tarrant County on February 19, 2009 from Argent Mortgage to Deutsche Bank National Trust Company as Trustee for Argent securities Inc. Asset-Backed Pass-Through Certificates, Series 2006-W4 (see attached exhibit O), is being used to create the false belief that a lawful act is being executed by persons to collect a non-valid debt, as it was provided by the plaintiffs in response to the defendants original request seeking to “view the alleged original paper promissory note with all assignments and allonges showing a complete chain of assignments” and to identify the true owner and holder of the alleged debt instrument. See attached exhibits B, I and P …

27. A formal complaint to the Federal Trade Commission has been filed and acknowledged. See attached exhibit R.

The Texas Government Code Fraud upon the court

28. Fraudulent Document or Instrument - Defendant alleges Plaintiffs have intentionally failed to submit relevant foundational evidence to this court in an attempt to cover up the truth and to fraudulently invoke the jurisdiction of this Honorable Court. The notice of assignment #D209045468 recorded in Tarrant County on February 19, 2009 from Argent Mortgage to Deutsche Bank National Trust Company as Trustee for Argent securities Inc. Asset-Backed Pass-Through Certificates, Series 2006-W4 (See attached exhibit O), in violation of the Texas Government Code Sec. 51.901 “Fraudulent Document or Instrument” (c) (2) (A), (B) and (C), was included in the plaintiffs letter dated 08/20/2009 (See attached exhibit P). That letter was sent in reply to the defendants’ dispute letter dated 06/11/2009 (See attached exhibit B) as an attempt to mislead the defendant to believe the plaintiffs have rights to enforce the note as holder or holder in due course. That same fraudulent notice of assignment is not in the pleading that was submitted and filed with Tarrant County by the plaintiffs as CAUSE NO. 096 239885 09 APPLICATION FOR ORDER FOR FORECLOSURE. See attached exhibit T.

29. Pooling and Servicing Agreement and Conveyance of Mortgage Loans - As defined by the Argent securities Inc. 2006-W4 Asset-Backed Pass-Through Certificates, Series 2006-W4 Pooling and Servicing Agreement, SEC. 2.01 “Conveyance of Mortgage Loans”, only the Depositor, “Argent Securities Inc.”, was authorized to assign instruments to the Trust’s Trustee, and Argent Mortgage Co. was no longer the holder or owner of the alleged debt obligation in question; Deutsche Bank National Trust Company as Custodian for the benefit of the Certificateholders for the Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4 became the reputed holder and the Certificateholders became the reputed owner of the alleged debt obligation in question on or before its official “cut off date” of April 1, 2006. See attached exhibits E, F and D.

The Securities Act of 1933 - TITLE 15 - CHAPTER 2A - SUBCHAPTER III

30. Evidence of recording of indenture and The Securities Act of 1933 -

Under the Securities Act of 1933 - TITLE 15 - CHAPTER 2A - SUBCHAPTER III - Sec. 77ccc “Definitions ”:

(7) The term "indenture" means any mortgage, deed of trust, trust or other indenture, or similar instrument or agreement (including any supplement or amendment to any of the foregoing), under which securities are outstanding or are to be issued, whether or not any property, real or personal, is, or is to be, pledged, mortgaged, assigned, or conveyed thereunder.

Under the Securities Act of 1933 - TITLE 15 - CHAPTER 2A - SUBCHAPTER III - Sec. 77nnn “Evidence of recording of indenture”:

(b) “Evidence of recording of indenture” - If the indenture to be qualified is or is to be secured by the mortgage or pledge of property, the obligor upon the indenture securities shall furnish to the indenture trustee - (1) promptly after the execution and delivery of the indenture, an opinion of counsel (who may be of counsel for such obligor) either stating that in the opinion of such counsel the indenture has been properly recorded and filed so as to make effective the lien intended to be created thereby, and reciting the details of such action, or stating that in the opinion of such

counsel no such action is necessary to make such lien effective; and (2) at least annually after the execution and delivery of the indenture, an opinion of counsel (who may be of counsel for such obligor) either stating that in the opinion of such counsel such action has been taken with respect to the recording, filing, re-recording, and refiling of the indenture as is necessary to maintain the lien of such indenture, and reciting the details of such action, or stating that in the opinion of such counsel no such action is necessary to maintain such lien. In clear violation of the above, as evidenced with the title search, there was no opinion of counsel; no recording, and there was no filing at the Tarrant County land records office of the alleged debt obligation. (Exhibit C).

31. Person Entitled to Enforce Instrument and the Pooling and Servicing Agreement - As defined by the Business and Commerce Code Sec. 3.301 “Person Entitled to Enforce Instrument”, notice of assignment # D209045468 recorded in Tarrant County on February 19, 2009 from Argent Mortgage Co. to Deutsche Bank National Trust Company as Trustee for Argent securities Inc. Asset-Backed Pass-Through Certificates, Series 2006-W4 (See attached exhibit O), is defective, as only Deutsche Bank National Trust Company as Custodian for the benefit of the Certificateholders for the Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4, as defined by the Pooling and Servicing Agreement within, was the reputed holder of the alleged debt obligation in question, and as such was the only entity authorized to assign instruments to the Trust’s Trustee, as Argent Mortgage Co. was not the holder of the alleged debt obligation in question. See attached exhibits E, F and D.

32. Holder in Due Course and the Pooling and Servicing Agreement - As defined by the Business and Commerce Code Sec. 3.302 (a) (1) “Holder in Due Course”, the notice of assignment #D209045468 recorded in Tarrant County on February 19, 2009 from Argent Mortgage Co. to Deutsche Bank National Trust Company as Trustee for Argent securities Inc. Asset-Backed Pass-Through Certificates, Series 2006-W4 (See attached exhibit O), is defective, as only Deutsche Bank National Trust Company as Custodian for the benefit of the Certificateholders for the Argent

securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4, as defined by the Pooling and Servicing Agreement within, was the reputed holder of the alleged debt obligation in question, and as such was the only entity authorized to assign instruments to the Trust’s Trustee, and Argent Mortgage Co. was not the holder in due course of the alleged debt obligation in question and therefore did not have the rights to enforce. See attached exhibits E, F and D.

33. The assignment of the mortgage, without an assignment of the debt, is a nullity - As there were no legitimate notice of assignments filed in the Tarrant County land records office of the

alleged debt obligation in question to the Deed of Trust (# D206085073 recorded March, 26, 2006 in Tarrant County) (See attached exhibit C) to record the conveyances involved in the creation and subsequent marketing of the Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4, a separation of the note and the mortgage resulted, thereby rendering said Deed of Trust a nullity. In Kirby v. Williams, 230 F.2d 330 (United States Court of Appeals Fifth Circuit) February 10, 1956. Rehearing Denied April 24, 1956 states: The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity." Van Burkleo v. Southwestern, Tex. Civ. App., 39 S.W. 1085, 1087; Sheldon v. Sill, 49 U.S. 441 (1850) 49 U.S. 441: The assignment of the mortgage, without an assignment of the debt, is a nullity.

34. Presentment - The Texas Business and Commerce Code Sec. 3.501 (b) (2) (A) and (B) “Presentment” requires exhibition of the instrument for the purpose of enforcement (produce the original ink signed note), and as the plaintiffs were not the holder in due course of the alleged debt obligation in question and did not have the rights to enforce, presentation of a copy of the alleged debt obligation is a blatant violation, and thereby should be deemed inadmissible as evidence.

35. Customary Procedure - Introduction of a copy of the alleged debt obligation in question rather than the original ink-signed paper promissory note by the plaintiffs, using the excuse that it is of customary procedure, is inadmissible. In United States of America v. Hibernia National Bank, 841 F.2d 592 96 A.L.R.Fed. 895, 5 UCC Rep.Serv.2d 1392, United States Court of Appeals, Fifth Circuit. April 5, 1988. Rehearing and Rehearing En Banc Denied May 9, 1988, the court stated: “Hibernia's reliance on commercial custom is misplaced. Commercial custom does not apply where the U.C.C. provides otherwise”.

36. Unclean Hands Doctrine - If said alleged debt obligation did exist and was presented to this court by the plaintiffs, then the Unclean Hands Doctrine would be used as a defense, as the plaintiffs are guilty of deliberately withholding a fraudulent notice of assignment from this court to conceal their criminal involvement in its fraudulent creation and use

in an attempt to effect owner, holder or holder in due course status for the purpose of collecting a debt that the they do not have rights to.

37. Plaintiffs Codilis& Stawiarski, P.C. and American Home Mortgage Servicing Inc. and Deutsche Bank National Trust Company as Trustee in trust for the benefit of the Certificateholders for Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4 and Deutsche Bank National Trust Company also have acted in a manner that is unlawful, oppressive, tainted with fraud and absent of evidence of vital facts.

38. Necessity of immediate relief to preserve assets , as set forth in the se complaints, without the assistance of this Court, the defendant will suffer immediate irreparable and substantial harm and injury as a result of the deliberate fraudulent actions of the Plaintiffs.

39. Due to the above mentioned facts, plaintiffs Codilis& Stawiarski, P.C. and American Home Mortgage Servicing Inc. and Option One Mortgage Company and Deutsche Bank National Trust Company as Trustee in trust for the benefit of the Certificateholders for Argent securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4 and Deutsche Bank National Trust Company or Deutsche and Bank National Trust Company as any other entity, do not have and never had standing to bring action before this court nor the authority to evoke the

jurisdiction of this court.

================================

PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant prays that Plaintiffs be denied their request to foreclose. As the plaintiffs have failed to establish the authority of this court and as a result of the fraud that they have committed, they will never be able to obtain the jurisdiction of this court. Therefore this Honorable Court lacks jurisdiction to hear this case at hand and at a minimum should dismiss this case with prejudice. Plaintiff respectfully requests this Court permanently restrain Plaintiffs and any other relief this Court deems equitable and just.

================================

ATTACHED EXHIBITS

A. Codilis & Stawiarski Acceleration Letter

B. letter to Codilis & Stawiarski - dispute

C. title search

D. record assignments (chart)

E. pooling and servicing agreement excerpts

F. prospectus excerpts

G. MEETING OF THE TASK FORCE ON JUDICIAL FORECLOSURE RULES

H. original enote (chart)

I. why the original (chart)

J. assignment fraud (other assignments - Brian Bly and Bobbie Jo Stoltd signatures etc.)

K. limited power of attorney D207376789

L. signature (chart)

M. required assignments (chart)

N. complaint to Florida notary section

O. notice of assignment D209045468 - Argent Deutsche

P. letter (package) received from Codilis 8/20/09

Q. letter to Codilis 09/10/09

R. complaint to FTC

S. Fraud or Fraudulent (chart)

T. letter (package) received from Codilis 9/9/09

U. CD with prospectus and pooling and servicing agreement in full, all exhibits in .pdf

=================================

Respectfully submitted by:

__________________________________________

Geoffrey Anson Wilner - Defendant, pro se

6311 Avanti Dr.

Arlington, Texas

76001

817 467 7478


I hereby certify that a correct copy of the foregoing was served on the following counsel of record on September ___, 2009, via certified mail, return receipt.

_________________________________

Geoffrey Anson Wilner Codilis & Stawiarski, P.C.

6311 Avanti Dr. 650 N. Sam Houston Parkway, East

Arlington, Texas Suite 450

76001 Houston, Texas

817 467 7478 77060

Defendant, pro se ATTORNEY FOR THE PLAINTIFFS

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ann Posted 02/27/10 at 08:30 PM Reply with quote #25

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Defendant’s Motion to Strike Affidavit of Christopher Spradling and for attorney’s fees and costs

COMES NOW, the Defendant Annabel E. Montgomery (hereinafter “Defendant”), by and through the undersigned counsel MATTHEW D. WEIDNER, and respectfully MOTIONS THIS COURT TO STRIKE AFFIDAVIT OF CHRISTOPHER SPADLING AND FOR ATTORNEY’S FEES AND COSTS, pursuant to Fla. R. Civ. Pro. 1.510, and in support thereof states as follows:

FACTS

1.This is an action for foreclosure of real property owned by the Defendant.

2.The named plaintiff in this case is HSBC BANK, USA, NATIONAL ASSOCATION, AS TRUSTEE FOR THE ACE SECURITIES CORPORATION HOME EQUITY TRUST, SERIES 2005-AG1, ASSET BACKED PASS-THROUGH CERTIFICATE (hereinafter “Plaintiff”).

3.On February 2, 2010 Plaintiff, by and through its counsel Florida Default Law Group, P.L. (hereinafter “Florida Default Law Group”), gave Notice of Filing of Affidavit as to Amounts Due and Owing and the accompanying Affidavit (hereinafter “Affidavit”).

4.The Affiant of the above-mention Affidavit was identified as Christopher Spradling (hereinafter “Spradling”). Spradling identified himself as a “Foreclosure Manager” for LITTON LOAN SERVICING, LP (hereinafter “Litton”). Litton, in turn, was identified as “the servicer of the loan…[Litton] is responsible for the collection of this loan transaction and pursuit of any delinquency in payments.”[1]

5.Spradling, based upon his personal knowledge, averred in the Affidavit that: (1) the Plaintiff or its assigns was owed a total of $408,809.30; (2) the Plaintiff was entitled to enforce the Note and Mortgage; and (3) Plaintiff was entitled to a judgment as a matter of law.[2] The Affidavit does not contain any mention as to who owes the Plaintiff the sum alleged save for one sentences line which cryptically state “[s]pecifically, I have personal knowledge of the facts regarding the sums which are due and owing to Plaintiff or its assigns pursuant to the Note and Mortgage which is the subject matter of the lawsuit” and a second which states “I am familiar with the books of account…concerning the transactions alleged in the Complaint.”[3] Emphasis added.

6.Nowhere in the Affidavit was either Litton or Spradling identified as either the Plaintiff or the Plaintiff’s authorized agent.

7.Upon information and belief, Litton is simply a “middleman” of sorts who is responsible for the transfer of funds between the various assignees of the underlying Mortgage and Note and has no knowledge of the underlying transactions between the Plaintiff and Defendant.

8.Upon information and belief, Spradling, as employee of Litton and not the Plaintiff, has no knowledge of the underlying transactions between the Plaintiff and Defendant.

LEGAL REASONING IN SUPPORT OF MOTION

1.I. Plaintiff Failed to Attach Documents Referred to in the Affidavit

1.a. Failure to Attach Documents Violates Fla. Stat. §90.901 (1989)

Florida Statue §90.901 (1989) states, in pertinent part, that “[a]uthentication or identification of evidence is required as a condition precedent to its admissibility.” The failure to authenticate documents referred to in affidavits renders the affiant incompetent to testify as to the matters referred to in the affidavit. See Fla. R. Civ. Pro. 1.510(e) (which reads, in pertinent part, that “affidavits…shall show affirmatively that the affiant is competent to testify to the matters stated therein”); Zoda v. Hedden, 596 So. 2d 1225, 1226 (Fla. 2d DCA 1992) (holding, in part, that failure to attach certified copies of public records rendered affiant, who was not a custodian of said records, incompetent to testify to the matters stated in his affidavit as affiant was unable to authenticate the documents referred to therein.)

Here, Spradling affirmatively states in the Affidavit that he is “familiar with the books of account and have examined all books, records, and documents kept by LITTON LOAN SERVICING, LP concerning the transactions alleged in the Complaint.”[4] Furthermore, Spradling averred that the “Plaintiff or its assigns, is owed…$408,809.30.”[5] Nevertheless, Spradling has failed to attach any of the books, records or documents referred to in the Affidavit. In addition, Spradling does not meet the definition of “custodian,” which is “a person or institution that has charge or custody (of…papers).” See Black’s Law Dictionary, 8th ed. 2004, custodian. By Spradling’s own admission “[t]he books, records, and documents which [Spradling] has examined are managed by employees or agents whose duty it is to keep the books accurately and completely.”[6] Emphasis added. Thus, Spradling has only examined the books, records, and documents which he refers to in the Affidavit while the true custodians of these documents are the employees or agents whose duty it is to keep

the books accurately and completely. In essence, Spradling averred to records which he did not submit nor could he testify for the authenticity of just as the affiant in Zoda did.

Spradling’s failure to attach the documents referred to in the Affidavit without being custodian of same is a violation of the authentication rule promulgated in Fla. Stat. §90.901 (1989), which renders him incompetent to testify to the matters stated therein as the Second District in Zoda held. Therefore, the Affidavit should be struck in whole.

1.b. Failure to Attach Documents Violates Fla. R. Civ. Pro. 1.510(e)

Fla. R. Civ. Pro. 1.510(e) provides, in part, that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” Failure to attach such papers is grounds for reversal of summary judgment decisions. See CSX Transp., Inc. v. Pasco County, 660 So. 2d 757 (Fla. 2d DCA 1995) (reversing summary judgment granted below where the affiant based statements on reports but failed to attach same to the affidavit.)

As previously demonstrated, Spradling referred to books, records, and documents kept by Litton which allegedly concerned the transaction referred to in the Complaint against the Defendant. Nevertheless, as previously demonstrated, Spradling has not attached any of these books, records or documents. This failure to do so is a violation of Fla. R. Civ. Pro. 1.510(e) and is grounds for a reversal of a summary judgment decision in favor of the Plaintiff. Therefore, the Affidavit should be struck in whole.

1.II. Affidavit Was Not Based Upon Spradling’s Personal Knowledge

As a threshold matter, the admissibility of an affidavit rests upon the affiant having personal knowledge as to the matters stated therein. See Fla. R. Civ. Pro. 1.510(e) (reading, in pertinent part, that “affidavits shall be made on personal knowledge”); Enterprise Leasing Co. v. Demartino, 15 So. 3d 711 (Fla. 2d DCA 2009); West Edge II v. Kunderas, 910 So. 2d 953 (Fla. 2d DCA 2005); In re Forefeiture of 1998 Ford Pickup, Identification No. 1FTZX1767WNA34547, 779 So. 2d 450 (Fla. 2d DCA 2000). Additionally, a corporate officer’s affidavit which merely states conclusions or opinion is not sufficient, even if it is based on personal knowledge. Nour v. All State Supply Co., So. 2d 1204, 1205 (Fla. 1st DCA 1986).

The Third District, in Alvarez v. Florida Ins. Guaranty Association, 661 So. 2d 1230 (Fla. 3d DCA 1995), noted that “the purpose of the personal knowledge requirement is to prevent the trial court from relying on hearsay when ruling on a motion for summary judgment and to ensure that there is an admissible evidentiary basis for the case rather than mere supposition or belief.” Id at 1232 (quoting Pawlik v. Barnett Bank of Columbia County, 528 So. 2d 965, 966 (Fla. 1st DCA 1988)). This opposition to hearsay evidence has deep roots in Florida common law. In Capello v. Flea Market U.S.A., Inc., 625 So. 2d 474 (Fla. 3d DCA 1993), the Third District affirmed an order of summary judgment in favor of Flea Market U.S.A as Capello’s affidavit in opposition was not based upon personal knowledge and therefore contained inadmissible hearsay evidence. See also Doss v. Steger & Steger, P.A., 613 So. 2d 136 (Fla. 4th DCA 1993); Mullan v. Bishop of Diocese of Orlando, 540 So. 2d 174 (Fla. 5th DCA 1989); Crosby v. Paxson Electric Company, 534 So. 2d 787 (Fla. 1st DCA 1988);

Page v. Stanley, 226 So. 2d 129 (Fla. 4th DCA 1969). Thus, there is ample precedent for striking affidavits in full which are not based upon the affiant’s personal knowledge.

Here, the entire Affidavit is hearsay evidence as Spradling has absolutely no personal knowledge of the facts stated therein. As an employee of Litton, which purports to be the servicer of the loan, he has no knowledge of the underlying transaction between the Plaintiff and the Defendant. Neither Spradling nor Litton: (1) were engaged by the Plaintiff for the purpose of executing the underlying mortgage transaction with the Defendant; or (2) had any contact with the Defendant with respect to the underlying transaction between the Plaintiff and Defendant. In addition, the Affidavit fails to set forth with any degree of specificity what duties Litton performs for the Plaintiff, save for one line which states that Litton “is responsible for the collection of this loan transaction and pursuit of any delinquency in payments.”[7] At best, Litton acted as a middleman of sorts, whose primary function was to transfer of funds between the various assignees of the underlying Mortgage and Note. Litton is not the named Plaintiff in this case, nor does the Affidavit aver that either Spradling or Litton is the agent of the Plaintiff.

Because Spradling has no personal knowledge of the underlying transaction between the Plaintiff and Defendant, any statement he gives which references this underlying transaction (such as the fact that the Plaintiff is allegedly owed sums of monies in excess of $400,000) is, by its very nature, hearsay. The Florida Rules of Evidence define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fla. Stat. §90.801(1)(c) (2007). Here Spradling is averring to a statement (that the Plaintiff is allegedly owed sums of money) which was made by someone other than himself (namely, the Plaintiff) and is offering this as proof of the matter asserted (that Plaintiff is entitled to enforce the Note and Mortgage and that Plaintiff is entitled to a judgment as a matter of law.) At best, the only statements which Spradling can aver to are those which regard the transfer of funds between the various assignees of the Mortgage and Note.

The Plaintiff may argue that while Spradling’s statements may be hearsay, they should nevertheless be admitted under the “Records of Regularly Conducted Business Activity” exception. Fla. Stat. §90.803(6) (2007). This rule provides that notwithstanding the provision of §90.802 (which renders hearsay statements inadmissible), hearsay statements are not inadmissible, even though the declarant is available as a witness, if the statement is

[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. Emphasis added.

There are, however, several problems with this argument. To begin, and as previously demonstrated, no memorandums, reports, records, or data compilation have been offered by the Plaintiff. Furthermore, the books, records, and documents referred to by Spradling in the Affidavit (which, of course, were not attached) were kept by Litton, who cannot be a person with knowledge as Litton does not have any personal knowledge of underlying

transaction between the Plaintiff and the Defendant. Finally, Litton, as the source of this information, shows a lack of trustworthiness because Spradling failed to attach the books, records, and documents to the Affidavit and because neither Litton nor Spradling have knowledge of the underlying transaction between the Plaintiff and the Defendant.

Because Spradling’s statements in the Affidavit are not based upon personal knowledge, they are inadmissible hearsay evidence. As no hearsay exception applies to these statements, the Affidavit should be struck in whole.

1.III. Affidavit Included Impermissible Conclusions of Law Not Supported by Facts

An affidavit in support of a motion for summary judgment may not be based upon factual conclusions or opinions of law. Jones Constr. Co. of Cent. Fla., Inc. v. Fla. Workers’ Comp. JUA, Inc., 793 So. 2d 978, 979 (Fla. 2d DCA 2001). Furthermore, an affidavit which states a legal conclusion should not be relied upon unless the affidavit also recites the facts which justify the conclusion. Acquadro v. Bergeron, 851 So. 2d 665, 672 (Fla. 2003); Rever v. Lapidus, 151 So. 2d 61, 62 (Fla. 3d DCA 1963).

Here, the Affidavit contained conclusions of law which were not supported by facts stated therein. Specifically, Spradling averred that the Plaintiff was entitled to enforce the Note and Mortgage and that the Plaintiff was entitled to a judgment as a matter of law, two legal conclusions, but did not support this conclusion with statements which referenced exactly who the Plaintiff was entitled to enforce the Note and Mortgage against. In fact there is no mention of any of the parties in question save for one cryptic line in where Spradling states that “[s]pecifically, I have personal knowledge of the facts regarding the sums which are due and owing to Plaintiff or its assigns pursuant to the Note and Mortgage which is the subject matter of the lawsuit” and another which states “I am familiar with the books of account…concerning the transactions alleged in the Complaint.”[8] Nowhere in the Affidavit does Spradling state that the Plaintiff is entitled to enforce the Note and Mortgage against the Defendant nor does Spradling state that the Plaintiff is entitled to a judgment as a matter of law because the Defendant owes the Plaintiff money. At best the Affidavit accuses someone of owing the Plaintiff $408,809.30 and that the Plaintiff should be able to enforce some Note and Mortgage against that particular someone. By not clearly identifying the parties in question, Spradling has not adequately supported his two legal conclusions.

Because the Affidavit contained impermissible conclusions of law which were not supported by facts stated therein, the Affidavit should be struck in whole.

1.IV. Sanction of Attorney’s Fees is Appropriate

Fla. R. Civ. Pro. 1.510(g) reads, in full, that

[i]f it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to

incur, including reasonable attorneys’ fees, and any offending party or attorney may be adjudged guilty of contempt. Emphasis added.

The undersigned counsel has expended considerable time and resources preparing to defend against an affidavit which has, on its face, no basis in law. Both Florida Default Law Group and the Plaintiff both knew that Spradling’s affidavit lacked authenticity and reliability yet still chose to file it with the Court. In addition, this is not Florida Default Law Group’s first time filing affidavits in bad faith. Recently, the Bankruptcy Court for the Southern District of Florida sanctioned both Florida Default Law Group and its client, WELLS FARGO, $95,130.45 for false representations made in affidavits in that court as well as other bankruptcy courts in Florida. See In re: Fazul Haque, Case No. 08-14257-BKR-JKO (Order Granting Wells Fargo, N.A.’s Motion for Relief from Stay and Imposing Sanctions for Negligent Practice and False Representations, Oct. 28, 2008). This is indicia of a modus operandi on Florida Default Law Group’s part to present misrepresentations and false affidavits to the Court which make an award of attorney’s fees and costs an appropriate sanction.

WHEREFORE, Defendant asks this Court to GRANT its MOTION TO STRIKE AFFIDAVIT OF CHRISTOPHER SPRADLING and enter an ORDER granting ATTORNEY’S FEES AND COSTS and any other relief the Court deems just and proper.

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[1] See Affidavit As to Amounts Due and Owing, pg. 1.

[2] Id, pgs. 1, 2.

[3] Id.

[4] See Affidavit As to Amounts Due and Owing, pg. 1.

[5] Id, pg. 2.

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Foreclosure Case Killer- The Subpoena Duces Tecum

February 24th, 2010 · 1 Comment · Foreclosure

The cat is way out of the bag. The lenders and banks that brought our country to the verge of collapse with fraud, misrepresentation and lies have now brought these same practices into local courtrooms. Every day judges who sign foreclosure orders are confronted with legal pleadings that do not conform to the most basic requirements of professional standards, but who really cares about that…the real issue is that because the lenders cannot produce the evidence they need to proceed with their cases, they….produce the evidence they need to proceed with their cases.

I’ve previously posted about affidavit and assignment fraud..it comes in three areas:

1) False Affidavits of Service or False Affidavits That We Could Not Serve the Defendant. (See Sewer Service);

2)False Assignments of Mortgage (MERS assigns this Mortgage to Deutsche Bank who now has the right to foreclose);

3)False Affidavits of Amounts due and owing.

A Subpoena for Every Foreclosure!

Many times these documents are false on their face, but sometimes it takes a little digging to uncover the lies and misrepresentations….that’s where a subpoena comes in. The following is text of a subpoena I use. Next is a Motion to Strike Affidavit. Now there are going to be foreclosures that are proper (such as when original lenders foreclose) but in virtually every other case (especially when a pretender lender is a Plaintiff), when pressed, you’re going to find that the evidence submitted to the court is filled with mistakes lies or outright misrepresentations. Given what we’re learning about the scope of this problem…subpoenas should be dropped in every case for every fact witness, assignor, assignee and affiant. Please share results of your work with me! Together we’ll take my beloved courts back.

SUBPOENA DUCES TECUM FOR RECORDS WITH DEPOSITION

STATE OF FLORIDA:

TO:

YOU ARE HEREBY COMMANDED to appear before a person authorized by law to take depositions at the law offices of MATTHEW D. WEIDNER, P.A., 1229 Central Avenue, St. Petersburg, Florida 33705, on MONTH DAY, 2010, for the taking of your deposition in this action and to have with you at the above time and place the following:

1. All books, papers, records, documents and other tangible things kept by LITTON LOAN SERVICING, LP concerning the transactions alleged in the complaint against Annabel E. Montgomery.

2. Any and all other books, papers, records, documents or tangible things that relate to HSBC BANK, USA, ASSOCIATION AS TRUSTEE FOR THE ACE SECURITIES CORPORATION HOME EQUITY LOAN TRUST, SERIES 2005-AG1, ASSET BACKED PASS-THROUGH CERTIFICATES’ claim against ANNABEL E. MONTGOMERY.

3. All employment records that exist between Christopher Spradling and any employer who has employed Spradling within the last three years including current employers.

4. All records that purport to give Christopher Spradling the authority to sign or execute any documents on behalf of any person or entity.

5. All documents, records, books, evidence or instructions that you reviewed or relied upon in order to prepare the affidavit or assignment executed in this case.

These items will be inspected and may be copied at that time. You will not be required to surrender the original items. You have the right to object to the production pursuant to this subpoena at any time before production by giving written notice to the attorney whoose name appears on this subpoena. You may condition the preparation of the copies upon the payment in advance of the reasonable cost of preparation.

If you fail to: (a) appear as specified, or (b) furnish the records instead of appearing as provided above; or (c) object to this subpoena you may be in contempt of Court. You are subpoenaed by the attorneys whose names appear on this subpoena, and unless excused from this subpoena by the attorney or the Court, you shall respond to this subpoena as directed.

DATED on XXXX X, 2010.

FOR THE COURT

Matthew D. Weidner, P.A.

1229 Central Avenue

St. Petersburg, FL 33705

By: ________________________________

Matthew D. Weidner

FBN: 0185957

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Foreclosure Case Dismissed

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http://mattweidnerlaw.com/blog/wp-content/uploads/2010/03/orderjirotka.pdf

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IN THE CIRCUIT COURT OF THE 0000 JUDICIAL CIRCUIT IN AND YYYY COUNTY, FLORIDA

A CIVIL ACTION

CASE NO.:

LASALLE BANK NATIONALASSOCIATION,AS TRUSTEE FOR CERTIFICATEHOLDERS OF BEAR STEARNS ASSET BACKED SECURITIES I LLC, ASSET-BACKED CERTIFICATES, SERIES 2006-HE9,

Plain~

vs,

XXXX; et at

Defendants).

DEFENDANT XXXXS' EMERGENCY MOTION TO STOP FORECLOSURE SALE. TO VACATE F'0RECLOSURE COMPLAINT FOR FRAUD ON THE COlJRT AND MOTION TO STRIKE FINAL.JUDGMENT OF FORECLOSURE AND ORDER SETTING

FORECLOSURE SALE AND MEMORANDUM OF LAW

COMES NOW, the Defendant XXXX, by and through his undersigned counsel

and :files this Motion and Memorandum of Law in the above-styled action and as grounds therefore ; requests the Court to Dismiss this action with prejudice pursuant to Rules 1.100(b). 1.14O(bX1X6) and (hX2) and 1.210(a) and J.54O(b) of the Florida Rules of Civil Procedure, and states:

The Plaintiff filed their complaint on March 13, 2009, at the time the Plaintiff filed their complaint they did not have standing and made material misrepresentation in their

pleadings.

2. Further the Plaintiff is a Trustee and does not and cannot own the mortgage as they are

Acting on behalf of the investment trust in this ease.

Several layers of fraud on the Court occurred in this instance and justice requires that the Court set the Order setting sale dale aside immediately and vacate the Final Judgment of

Foreclosure dated December 12, 2001 which has listed a sale date of January 23~ 2009.

In addition to not having standing. the plaintiff falsely alleged that “the original promissory note was lost or destroyed subsequent to plaintiff's acquisition thereof' and that "plaintiff was in possession of the promissory note and was entitled to enforce it when loss of possession occurred" when in actuality they did not have an interest in the paper at the time of bringing this lawsuit and a purported assignment occurred after the lawsuit was filed.

The March .17. 2008 assignment of Mortgage (See Exhibit" A “ from Mortgage Electronic Registration Systems, Incorporated as Nominee for Encore Credit Corporation d/b/a EC-C Credit Corporation of Florida (MERS) to Plaintiff Lasalle Bank National Association. as Trustee for Certificate holders of Bear Stearns Asset Backed Securities I LLC, Asset Backed Certificates. Series 2006-HE9 ("LBNA j clearly states that the assignment of the mortgage and the promissory note that are the subject of this foreclosure action were later filed after LBNA only as trustee filed a Notices of Lis pendens on March 13,2008 in the Circuit Court of the Fifth Judicial District Court in and for Hernando County, Florida (See Exhibit B‘ . LBNA in its suit also does not indicate how it had any right or legal ability to initiate such an action and simultaneously claimed that "they had also lost or destroyed die Mortgage Note" which they did not own---in fact LBNA as nominal trustee for mortgage-backed securities has filed many foreclosure actions throughout the United States under false, deceptive and misleading representation without any legal standing to sue any party and its interest in the debt. These patterns represent a pattern of corrupt and illegal activity.

6.. Further, the Assignment itself is objectionable and gives rise to several issues of possible misrepresentation and fraud (See Exhibit "A OS).

Liquenda Allotey has executed the assignment as Vice President ofMERS but he is not listed as an officer or director of MERS. (See oomposite Exht"bit "C"),

Liqoenda Allotey has also executed Assignments as Vice President of other banks in the recent past (See Composite Exhibit "D"), Most peculiar, Allotey was Vice President of Washington Mutual in 2006, Vice President of MERS for this case and again on April 30, 2007, and Vice President of Washington Mutual again on May 17,2007.

AUotey, in fact appears to works for FIS-LPS a mortgage Collection agency as evidenced by his Linkedl profile, and the Summit magazine (page 18)(See Composite Exhibit "E").

Additionally, as to the March 17.2008 assignment. it purportedly assigns the mortgage and the Promissory ' note from MERS in its corporate capacity as nominee (agent) directly to LBNA and not to the trust for which plaintiff acts as trustee.

II. LBNA's pattern and practice of seeking and obtaining foreclosure judgments without a duly recorded assignment, without the evidence of a chain of assignment at time of filing suit constitutes a "false, deceptive, or misleading representation or means" in connection

with 1he collection of debt, in violation of the Federal Fair Debt Collection Practices Ac~ 15 U.S.C. 1692e and that bas occurred in this case as well.

The plaintiff also fails to attach a copy of the promissory note to its complaint.

From the plaintiff’s own filings in this foreclosure action, it is established that a person other than the plaintiff LBNA was in filet the true owner of the claim at the time LBNA actually sued upon. and that the plaintiff is not and never was the real party in interest, and is not and C3ID1ot be shown to be the proper authorized party to bring this foreclosure action. In re: Shelter Development Group. Inc.. 50 B.R. 588 (Bankr S.D Fla. 19!1.,S)

The Plaintiff did not own or hold the subject promissory note at the time the Plaintiff LBNA filed this foreclosure action on March 13, 2008, and the plaintiff was fully aware of this Jack of ownership, and its lack of standing at the time of the commencement of this action. As stated Plaintiff LBNA and others like it have done this repeatedly, and even federal 00UIts are striking their predatory tactics for this very same reason as they never bad ownership and do not have the notes where they just claim they lost them.

The plaintiff LBNA further has failed to establish in any of its papers or filings that it owned or held the mortgage or the promissory note at the commencement of this action. In fact the assignment of the mortgage did not take place until March 17, 200~, several days after the filing of the complaint where they claim to already have "lost or destroyed the mortgage note".

Unlike statutory prerequisites to filing a lawsuit, standing is having a sufficient interest in the outcome of litigation which will warrant a Court's entertaining it.

The plaintiff in this case, still only a TRUSTEE for these securities, never had an interest in the mortgage or the promissory note, and never had standing to bring this action.

In this case, the Court is without jurisdiction because the Plaintiff LBNA, a trustee, has perpetrated a fraud upon this Court in this action as set out herein.

The falseness of the plaintiff's allegations that it owned, held and possessed the subject mortgage and promissory note is readily apparent from a cursory review of the documents attached to the complaint and the 1ater filed assignment.

The defendant seeks a hearing to this matter to obtain an Order dismissing this foreclosure action filed by a trustee of a securitized mortgage pool based on a lack of standing; a lack of subject matter jurisdiction; failure to state a cause of action for foreclosure and for fraud on the Court which is also supported by Florida Rule 1.S4O(b) even at this late date. Also defendant Puentes seeks an Order to strike the Final Judgment of foreclosure dated December 12, 2008 and order setting foreclosure sale set for January 23, 2009. .c;>

The defendant seeks a finding that the plaintiff's assertions that it was the owner of the mortgage and the promissory note at issue were false and that the plaintiff was fully aware of such false allegations at the time the plaintiff filed this foreclosure action while claiming it bad already lost the mortgage note it did not own. Under Florida Rule 1.54O(b). there is no time limitation due to fraud and misrepresentation in dismissing a summary judgment.

22. The plaintiff LBNA is not the "owner' of the ~ mortgage or the promissory note as

the plaintiff alleges to this Court in its complaint and not to grant defendant Puentes relief

would be most harmful to him as once the scheduled sale takes place, there is no further

recourse while Plaintiff LBNA is not damaged as there is no beneficial interest for them to

protect where delay would cause them harm.

23. The plaintiff's allegations that it "owned' "held' and "possessed' the mortgage and promissory note that are the contracts that are the subject of this foreclosure action are

false and were made in bad faith as the Plaintiff knew said allegations were false. In fact

LBNA almost always claims they have lost their notes and cannot find them.

24. The plaintiff LBNA, only as trustee, establishes in its complaint that it was fully aware

that its claims to have standing to pursue this foreclosure action were untrue and an

impossibility at the time the plaintiff made such allegations to this Court for they had to

assign the mortgage note at a later date, being March 17. 2008 {See Exhibit «A j. Rhea v.

Halkney, 157 So. 190, 193 (FIa. 1934)

25. "A plea is considered 'sham' when it is palpably or inherently false. and from the plain or

conceded facts in the case, must have been known to file party interposing it to be untrue.'"

Rhea v. Holkney, 157 So. 190, 193 (FIa. 1934); O'Berry»: Pearson. 186 80.430 (1939); Furstv. Blackman, 744 So.2d 1222{Fla. 4d1 DCA 1999), Reif Deve/opmen. Inc. v. Wachovia Mortg. Ca., 340 So.2d 1267 (FIa. 4· DCA 1976). The plaintiff's complaint is a “sham”.

--

---

The integrity of the civil litigation process depends on the truthful disclosure of facts.

Metropolitan Dade County v. Martinson. 736 8o.2d 794 (Fla. 3R1 DCA 1999), Andrews v. Palmus De Majorca Condo, 898 So.2d 1066 (Fla. 5* DCA 2005). plaintiffs actions

undermine the integrity of this civil litigation process.

27. A trial court has the inherent authority, within the exercise of sound judicial discretion, to

dismiss an action and strike an order when a plaintiff has perpetrated a fraud or made

misrepresentations to the Court. .Arzuman v. Suad., 843 So.2d 950 (Fla. 411I DCA 2003), Piullno v. R.F. Concrete Constr . Inc; 904 So.2d 658 (Fla. 4110 DCA 2005)

A party guilty of fraud or misconduct in the prosecution of a civil proceeding should not be permitted to continue to employ the judiciary to achieve its ends where defendant asks this court for immediate relief and protection . .Andrews v. Polmas De Majorca Condo, 898 So.2d 1066 (FIa. 511I DCA 20(5)

The plaintiff LBNA's lack of ownership of the mortgage and the promissory note in this case goes to the heart of its claim of standing, permeates the entire proceeding and subverts the integrity of the action. Metropolitan Dade County v. Martinsen. 736 So.2d 794 (Fla. 311l DCA 1999)

The plaintiff's efforts to misrepresent ownership of the note are a mere pretense set up in bad faith and without color of filet. Reg Development, Inc v. Wachovia Supra and Furst v. BIac1mI01l. supra.

It is appropriate for the trial court to dismiss an action based on fraud where there is a blatant showing of fraud, pretense. collusion, or other similar wrongdoing. Distefano v. Stale Farm Mutual. Automobile Ins. Co., 84(j So.2d 572, 514 (Fla. ) 51 DCA 2003)

Rule 1210(a) of the Florida Rules of Civil Procedure provides in pertinent part:

Every action may be prosecuted in the name of the real party in interest. but a personal representative. administrator, guardian. trustee of an express trust. a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought. .

The plaintiff meets none of these standing criteria.

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. This entitlement to prosecute a claim in

Florida courts rest exclusively in those persons granted by substantive law, the power to

enforce the claim. Kumar Corp. v. Nopa! Lines, Ltd. et al, 462 So.2d 1178 (F1a. 3d DCA

1985)

34. No Florida case holds that a separate entity can maintain suit on a note payable to another

entity unless the requirements of Rule 1210{a) of the Florida Rules of Civil Procedure and applicable Florida Law are met. Corcoran v. Brody, 347 So.2d 689 (Fla. 4th DCA 1977)

35. "The determination of standing to sue concerns a court's exercise of jurisdiction to hear

and decide the cause pled by a particular party." Rogers & Ford Constr. Corp. 11.

Corlandia Corp., 626 So.2d 1350, 1352 (Fla. 1993)

36. Defendant Puentes seeks a dismissal of the plaintiff's complaint on the basis of fraud on

the court, making numerous misrepresentations, and under the circumstances of this case,

"a formal evidentiary hearing on this motion to dismiss, as well as permissible discovery

prior to the hearing, is required." Dynasty Express Corp. v. Weiss, 675 So.2d 235, 239 (FIa 4* DCA 1996)

37. Recent decisions of many courts from around the country from state courts, federal district

courts and bankruptcy courts have caused actions such as the present to be dismissed for

failure to state a claim and for ffailure to assert an injury in fact. Copies of these court

orders, to date, can be presented to and filed with the Court and are incorporated herein.

38. As held in the In re Foreclosure Actions, the appropriate documentation required to

..... -:

effectuate an equitable assignment and having legal standing to bring a foreclosure action

must be through a trust and/or assignment documents executed before the action was commenced, OT both as circumstances may require. 2007 WL 4034554 at *1 (N.D. Ohio

2007). A trust cannot be effective until it bas been executed so the assignment documents

that place property in trust would need to be executed before any action could be taken.

Here. the assignment documents were not executed until after the action was brought in

court.. This is a fraud upon the court and should be dismissed because the plaintiff's bad no legal standing to even bring the action for foreclosure at the time that they did.

Where a plaintiff does not own a mortgage OT have any interest in the mortgage at the time

of filing foreclosure action, the case must be dismissed for failing to comply with

statutory requirements of standing. See Davenport v. HSBC Bonk,275 Micb.App. 344,

347-348, 739 N.W.2d 383, 385 (Mich.App..,2007) (Where the defendant did not own the

mortgage or an interest in the mortgage at the time in which they commenced foreclosure

proceedings. Quite simply, defendant did not yet own the indebtedness that it sought to foreclose. Because defendant lacked the statutory authority to foreclose" the foreclosure

proceedings were void Db initio). See also Fleet Nal. Bonlc v. Nazareth.75 Conn.App.

791. 794-795. 818 A.2d 69, 71 (Conn.App..2003) (In this case. however, the plaintiff was

never the holder of the note. The Plaintiff has failed to cite any authority, nor has our

research found any. to support its claim that it has standing to foreclose on the mortgage

without ever having been assigned the note). See also m re Nosek,386 B1 374. 380 (Bkrtcy.D.Mass..2008) (Holding that those parties who do not hold the note or

mortgage and who do not service the mortgage do not have standing to pursue motions for

relief or other action arising :from the mortgage obligation. Schwartz, 366 B..R.. at 270).

40. Similarly. where action was commenced only a few days before execution of an

assignment, courts have held that the Plaintiff has no standing to bring an action in court.

So regardless of the amount of time between the action being filed and the execution of

-~~-

the assignment, the assignment must be executed prior to any assignment. See Mongage

Electronic Registration Systems. mers.. 17. Thompson, 2002 WL 521704 (Conn.Super 2002) (Plaintiff had no standing to bring foreclosure action, and thus, court lacked jurisdiction

over action, where action was commenced at a time when Plaintiff had no interest in

mortgage being foreclosed; defendant was served writ, summons and complaint three days before plaintiff was assigned mortgage to be foreclosed, and plaintiff offered court no

evidence as to its legal or equitable right to bring action on or before date of service. C.G.SA § 49-17).

Florida Courts have also held in similar cases that an assignment must be executed before a party may file suit. See Progressive W.1ns. Co. 1'. McGrath Comollmily Chiropractic. 913 So.2d 1281, 1287 (Fla.App. 2d DCA 200s)(Where an insurance provider alleged that insurance benefits were assigned to it without producing a written instrument, then amended the claim with a written instrument dated six months after the filing of the suit, held that the provider lacked standing because there was no assignment at the time that the case was filed in court).

Courts have held that a party's lack of standing is a defect that cannot be cured by acquiring the right of standing after action has already been filed. See Gwa1tnev of Smithfield. Ud. l'. CI}esgpeaJre BqyFound..lnc.. 484 us, 49, 69 (1987) (Scalia, J., concurring) ("Subject matter jurisdiction depends on the state of things at the time of the action brought). See Also Progressive Exp.ms. Co . 913 So.2d 1281. Compare to DasmoIlfl1estments. LLC v. RealtvAssoc. Fund m, LP.459 F. Supp. 2d 1294, 1302 (S.D. Fla., 2006)(Party suing on Promissory Note must be in actual possession of the original note to have standing).

The plaintiff cannot in good faith deny knowledge of the judicial findings of these many courts around the country, it is now even in newspapers and on television, and these widely publicized issues relate directly to the underlying standing problem that Plaintiff LBNA has in this case and other cases.

44.· The Plaintiff LBNA is fully aware that the trustee never owns Promissory' notes as MERS once stated in the case of Mortgage Electronic RegistrLllioJJ Systems. Jnc. v. Nebrasm Department of Bonking, where MERS pronounced that as trustee of a pool of mortgage backed securities, It does not acquire mortgage loans . because it only holds legal title to members' mortgages in a nominee capacity ... and that it does not own the promissory notes secured by the mortgages and has 00 right to payments made to the Note." LBNA as Trustee, is just like MERS as explained in the Nebraska case that "it (the trustee) mere)y immobilius the mortgage lien while transfers of the promissory Notes and servicing rights continue to occur." Mor/gage Elec: RegisJration Sys., Inc. v. Nebraska Dept. a/Banking, 704 N.W.2d 714, 717 (Neb. 2005)

As a result in the instant case, the plaintiff LBNA knew and was fully aware that it was asserting a right to foreclose as it was the owner and holder of tile subject mortgage and promissory note when the plaintiff knew that such right did not exist and die plaintiff fiu1her knew that it was not the owner or the holder of the subject mortgage note at 1he time the plaintiff filed its complaint herein alleging that it owns and holds and possesses the subject promissory note and mortgage. These allegations are utterly false and were knownpJaintiff to be false at the time the plaintiff filed this action on March 13~ 2008. In effect, plaintiff LBNA falsely represented the status of the debt, in particular, . that it was due and owing to plaintiff LNA at the time the suit was filed, and that LBNA was an innocent purchaser for value, when in fact, only an assignment for no value had not been accomplished days later on March 17.2008. All a total Sham.

In Florida, the prosecution of' a foreclosure action is by the rightful owner of the mortgage and the holder of1be promissory note. At the time of this filing, LBNA has not been shown to have a connection to this matter.

It is clear from the mortgage and the assignment later produced and attached h~. that a person other than the plaintiff is the true owner of the claim sued upon and that the plaintiff is not the real party in interest and is not shown to be authorized to bring this action

Florida Rule of Civi1; Procedure 1.130(a) requires a plaintiff to attach copies of all bonds, notes, bills of exchange, contracts, aecouats, or documents upon which action may be brought to its complaint. Instead, even before the

assignment, LBNA was already claiming to be the rightful owner and that the "mortgage note had either been lost, destroyed. and that plaintiff was unable to state the manner in which this occurred ... and after diligent search they were unable to obtain possession of the mortgage note:' LBNA wants this court to believe that this is an isolated case involving the defendant Puentes, but

in fact, they never owned the note and in many suits they bring, they make the same claims before the court often going unchallenged as they foreclosed on other's property.

The Plaintiff also has failed to attach a copy of any other document or contract upon which this action to prosecute the breach of a promissory note is being brought.

Fla. R. Cw. P. Rule 131O(b)provides that all Exhibits attached to a pleading shall be considered a part of the pleadings for all purposes. It appears on the face of the plaintiff's complaint and the documents attached thereto that the plaintiff is not the proper party to bring this action. Because the facts revealed by Plaintiff’s exhibits are inconsistent with Plaintiff's allegations as to the ownership of the subject mortgage and note, those allegations are neutralized and Plaintiff’s complaint is rendered objectionable. Greenwald 1'. Triple D Properlies.lnc.. 424 So.2d 185, 187 (FIa. 411I DCA 1983).

When exhibits are inconsistent with the Plaintiff’s allegations of material filed as to who the real party in interest is, such allegations cancel each other out. Fladellv. Palm Beach County Canvassing Board. 772 So.2d 11240 (Fla 2000); Greenwald 1'. Triple D Properties, Inc., 424 So.2d 185, 187 (Fla. 411I DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So.2d 1114 (Fla. 3d DCA 1983).>

-_.:,

Lastly, Florida Rule 1..54O(b) also gives relief 1iom judgment, decrees or Orders if there is

merit to the case, which there is in this case. In paragraph (b) on motion and upon such terms that are just. the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons:

i, Mistake, inadvertence, surprise. or excusable neglect;

ii. Newly discovered evidence which by due diligence could not have been

discovered in time to move for a new trial or rehearing; and

iii, Fraud (whether heretofore denominated intrinsic or extrinsic).

Misrepresentation or other misconduct of an adverse party.

The nde does not limit the power of a court to entertain an independent action to relieve a

party from a judgment, decree, order, or proceeding or to set aside a judgment or decree

for fraud upon the court. From the plaintiffs own pleading. it is easy to see where there

have been both fraud and misrepresentation in this case and other eases which LBNA and

their attorneys are also involved.

WHEREFORE, The Defendant, XXXX, prays that this Honorable

Court grant a beariog (if necessary') and dismiss the Plaintiff’s complaint and this action with prejudice; immediately strike the Final Judgment of Foreclosure and the order scheduling foreclosure sale dated

December 12. 2008; award this defendant all other relief to which this defendant proves himself entitled

to including but not limited to an award for reasonable and necessary attorney's fees; or in the alternative. issue a temporary restraining order to allow for a hearing on this matter as delay will not cause prejudice

to non-standing party plaintiff LBNA but would severely harm defendant XXXX.


I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by regular Il.S, Mail and facsimile to ___________________. of January, 2009.

Respectfully submitted. _;~

;

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REQUEST FOR PRODUCTION

——————————————

SUPERIOR COURT OF NEW JERSEY

CANCERY DIVISION – ESSEX VICINAGE

————————————————�� —————X Civil Action

Deutsche Bank National Trust Company# as Trustee of

Argent Securities, Inc. Asset Backed Pass Through

Certificates, Series 2004-PW1 Docket Number: XXX

REQUEST FOR

Plaintiff(s), PRODUCTION OF

DOCUMENTS

vs.

XXX; JOHN DOE,

HUSBAND OF XXX,

XXX Ave

Rosedale, NY 11422

Defendant(s) Pro-Se

————————————————�� —————X

REQUEST FOR DISCOVERY: PRODUCTION OF DOCUMENTS

XXX serves this Request for Production of Documents on Deutsche Bank National Trust Company, per Case Management Order dated September 30, 2009, and as authorized by Federal Rule of Civil Procedure 34. As required by this Order and Rule 34(b), Deutsche Bank National Trust Company must produce all requested documents for inspection and copying either as they are kept in the ordinary course of business or segregated according to each request. The documents must be produced within 30 days of service of this request at: XXX, XXX Ave, Rosedale, NY 11422.

INSTRUCTIONS

i). These requests for production of documents are directed toward all information known or available to Deutsche Bank National Trust Company – not its lawyers with no firsthand knowledge of the records in this instant case – including information contained in the records and documents in Deutsche Bank National Trust Company’s custody, control or available to Deutsche Bank National Trust Company upon reasonable inquiry. Where requests for documents cannot be answered in full, they shall be answered as completely as possible. No answer or an incomplete answer shall be accompanied by a specification of the reasons for the lack of answer and the incompleteness of the answer and of whatever actual knowledge is possessed with respect to each unanswered or incompletely answered Request for Documents. Please state the name(s) of the senior officer(s) having firsthand knowledge of the facts herein and their title answering this request.

ii). Each Request for Documents is to be deemed a continuing one. If, after serving an answer to any Request for Documents, you obtain or become aware of any further information pertaining to that Request for Documents, you are requested to serve a supplemental answer setting forth such information.

iii). As to every Request for Documents which you fail to answer in whole or in part, the subject matter of that document request will be deemed confessed and stipulated as fact to the Court.

iv). For each document or other requested information that Deutsche Bank National Trust Company asserts is privileged or is not discoverable, identify that document or other requested information. State the specific grounds for the claim of privilege or other grounds for exclusion.

v). For each document that Deutsche Bank National Bank Trust Company claims is not discoverable, state (1) the information required by the definition of “document” below, (2) the author’s job title and address, (3) the recipient’s job title and address, (4) the name and job title of all persons to whom it was circulated or who saw it, (5) the name, job title, and address of the person now in possession of the document, and (6) the document’s present location.

vi). For a document that no longer exists or cannot be located, identify the document, state how and when it passed out of existence or when it could no longer be located, and state the reasons for the disappearance. Also, identify each person having knowledge about the disposition or loss of the document, and identify any other document evidencing the lost document’s existence or any facts about the lost document.

vii). As to every Request for production which you fail to answer in whole or in part, the subject matter of that production will be deemed confessed and stipulated as fact to the Court.

viii). Answer each request for production separately by listing the documents and by describing them as defined below. If documents are numbered for production, in each response, provide both the information that identifies the document and the document’s number.

DEFINITIONS

The following terms have the following meanings, unless the context requires otherwise:

ix). Parties. The term “plaintiff” or “defendant,” as well as a party’s full or abbreviated name or a pronoun referring to a party, means the party and, where applicable, {his/her/its} agents, representatives, officers, directors, employees, partners, corporate parent, subsidiaries, or affiliates. This definition is not intended to impose a discovery obligation on any person who is not a party to the litigation.

x). Person. The term “person” means any natural person, any business, a legal or governmental entity, or an association.

xi). Document. The term “document” is synonymous in meaning and equal in scope to the usage of this term in Federal Rule of Civil Procedure 34(a) and includes computer records in any format. A draft or non-identical copy is a separate document within the meaning of this term. The term “document” also includes “any tangible things” as that term is used in Rule 34(a).

xii). Communication. The term “communication” means the transmittal of information in the form of facts, ideas, inquiries, or otherwise.

xiii). Identify (person). When referring to a person, “identify” means to give to the extent known the person’s full name, present or last known address, telephone number, and, when referring to a natural person, the present or last known place of employment. Once a person has been identified in compliance with this paragraph, only the name of that person needs to be listed in response to later discovery requesting the identification of that person.

xiv). Identify (document). When referring to a document, “identify” means to give, to the extent known, the following information: (1) the type of document; (2) the general subject matter of the document; (3) the date of the document; (4) the authors, addressees, and recipients of the document; (5) the location of the document; (6) the identity of the person or entity who has custody of the document; and (7) whether the document has been destroyed, and, if so, the (a) date of its destruction, (b) reason for its destruction, and (c) identity of the person who destroyed it.

xv). Relating. The term “relating” means concerning, referring, describing, evidencing, or constituting, directly or indirectly.

xvi). Any. The term “any” should be understood in either its most or its least inclusive sense as necessary to bring within the scope of the discovery request all responses that might otherwise be construed to be outside of its scope.

xvii). And/Or. The connectives “and” and “or” should be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery request all responses that might otherwise be construed to be outside of its scope.

xviii). Number. The use of the singular form of any word includes the plural and vice versa.

xiv). Deutsche Bank National Trust Company includes any and all persons, all past and current employees and agents acting, for in concert or behalf of Deutsche Bank National Trust Company each of your directors, employees, fiduciaries, representatives and agents, of this allege plaintiff, and any individual over which this allege plaintiff, exercises the power to control and direct as well as everyone acting for or on behalf of Deutsche Bank National Trust Company having firsthand knowledge.

xx). “Documents” or “documents” means writings of every kind and character pertaining to the designated subject matter, including, without limitation and not limited to, the original and a certified copy, regardless of origin or location, of any regulation, court decision, book, pamphlet, periodical, letter, memorandum, file, note, diary, calendar, newspaper, magazine, statement, bill, invoice, order, policy, telegram, correspondence, summary, receipt, opinion, investigation statement or report, schedule, manual, financial statement, audit, tax return, articles of incorporation, bylaws, stock book, minute book, agreement, contract, deed, security agreement, mortgage, deed of trust, title or other insurance policy, report record, study, Note which indicates or constitutes evidence of debt, monetary instrument, contract for services or transfer of money between Plaintiff and any other person (natural or artificial), hand written note, map, drawing, working paper, chart, paper, draft, index, tape microfilm, e-mail, data sheet, data processing card, computer printout, computer program, check, bank statement, passbook or other written, typed, printed, photocopied, dittoed, mimeographed, recorded, transcribed, punched, taped, filmed, photographic or graphic matter, however produced, to which you have or have not had access.

xxi). The term “equity in the original note” refers to the fact that not only does Deutsche Bank National Trust Company have physical possession of the original promissory note and custody like a fiduciary, but must have also vested financial interest in such: it legally belongs to Deutsche Bank National Trust Company.

DOCUMENTS REQUESTED

1) Please identify the true owner of this obligation pursuant to 15 U.S.C. § 1641(f)(2) and describe your relationship to this entity.

RESPONSE:

2) Produce copies of complaints or petitions in any action filed by or against Deutsche Bank National Trust Company in which allegations are similar to those of this suit.

RESPONSE:

3) Produce settlement agreements that Deutsche Bank National Trust Company has entered into with any party or non-party as a result of or relating to this instant case.

RESPONSE:

4) For each payment received, produce a complete payment history, including but not limited to the dates and amounts of all the payments that have been made on the alleged loan to date, how the payment was applied or credited (indicating the portion, if any, applied or credited to principal, interest, escrow or suspense, and any Servicer), the month to which the payment was applied and if interest and principle is calculated using an daily actuarial accounting method;

RESPONSE:

5) Produce a certified copy of all Truth in Lending material disclosures provided at any purported closing and all written notices that informed Defendant of all effective dates concerning the transfer of the Note and Security Instrument pursuant to 12 USC § 2605(c);

RESPONSE:

6) Produce a certified copy of all letters, statements, documents, and material disclosures sent to Defendant by Servicers, Sub-Servicers or others in your file or in your control or possession or in the control or possession of any affiliate, parent company, agent, Sub-Servicers, Servicers, attorney or other representative of your company;

RESPONSE:

7) Produce all accounting ledger cards, journal entries and/or bookkeeping entries regarding the crediting of any and all Promissory Notes, money equivalents, or similar instruments, identified as or evidencing assets provided by and/or signed by the borrowers and consumers relating to this Account.

RESPONSE:

Produce a copy of all account receivables or payable, (including the amount, payment date, purpose, length of insurance term, and recipient of all expenses including appraisal fees, property inspection/preservation fees, force-placed insurance charges, title insurance, hazard insurance, legal fees, recoverable corporate advances) relating to this Account that Argent Mortgage Company, LLC, Argent Securities, Inc., Deutsche Bank National Trust Company and any

other bank, depository or financial institution and/or mortgage servicers recorded in its accounting ledger card and bookkeeping journal entries since the origination of this loan;

RESPONSE:

9) Produce the particulars of this Account setting forth each item recorded on the account since origination to include any and all Promissory Notes, money equivalents, or similar instruments, identified as or evidencing assets provided by and/or signed by the borrower and consumers on which Deutsche Bank National Trust Company or any other entity based an amount alleged due and owing, and the date that each item was delivered to the Plaintiff;

RESPONSE:

10) Produce an identification of the source of the funds used to fund the loan since its origination, including account name(s), number(s), and amount(s), including identification of the source of the funds Deutsche Bank National Trust Company used to purchase any and all Promissory Notes, money equivalents, or similar instruments, identified as or evidencing assets provided by and/or signed by the borrowers and consumers, and claims shall be due and owing, and the date the purchase was completed by Deutsche Bank National Trust Company or any subsequent Servicer;

RESPONSE:

11) Produce certified copies, front and back, of all checks or wire transfer confirmation obtained or issued by Argent Mortgage Company, LLC and used to fund and purchase this obligation, including all copies of checks or wire transfers paid as third-party fees at the closing by Argent Mortgage, LLC;

RESPONSE:

Further, you are hereby requested to produce the following documents and information as related to public disclosure of securities under SEC rules and servicing of this obligation – SEC File No.: 333-112237-01:

12) A certified copy of all recourse agreements (including, the Master Pooling and Servicing Agreements, the Mortgage Loan Purchase Agreement, the Trust Agreement, Servicer Agreement, Assignment and Assumption Agreement, SEC Forms 424(b)(5), 8K, 10K, 10D, REMIC, NIMS Insurer) between the Servicers, Argent Securities, Inc., Argent Mortgage Company, LLC, Ameriquest Mortgage Company, Deutsche Bank National Trust Company and the SPV, and any other entity who claims ownership in this obligation whereby the original promissory note agreement and collateral instruments were pooled and securitized into a mortgage-backed security in the structured finance transaction;

RESPONSE:

13) Pursuant 17 CFR 240.12g5-1 provide the name of the “record holders” and/or the name of “each person who is identified as the owner of such securities on records of security holders maintained by or on behalf of the issuer.”

RESPONSE:

14) A certified copy of the Registration Statement as that term is defined under 15 USC § 77b(a)(8), i.e.; Form 8-A (short form) and Form 10 (long form) Registration Statements under the 1934 Act, Form S-1 and S-3 Registration Statement under the 1933 Act;

RESPONSE:

15) Any request for exemption or No-action letters from SEC with respect to their securities and all ACTS and certified copies of the application filed with the SEC for exempt status and the order issued by the SEC granting exempt relief from the appropriate provisions;

RESPONSE:

16) If no registration statement pursuant to the 1933 Act is available or otherwise required, please provide a comprehensive description that meets the “General Statement” of Regulation S and satisfies the conditions applied to the “Safe Harbor” rule.

RESPONSE:

17) The Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA”) Pub. L. 97-248, 96 Stat. 324, a bearer debt security generally must be issued under arrangements reasonably designed to ensure that such obligation will be sold only to a person who is not a United States person and must satisfy certain other conditions identified in the Tax Code § 163(f)(2)(B), and as such please provide:

a) The Identify of all parties with ownership interest who have met the criteria as adopted by Treasury Regulation § 1.163-5(c)(i)(D) “TEFRA D” and § 1.163-5(c)(i)(C) “TEFRA C”

RESPONSE:

b) Certified copies of all statements on a U.S. Form W-8 or substitute thereto certifying the owner’s non-U.S. status where the obligations issued in registered form are not subject to the TEFRA rules and considered “portfolio interest.”

RESPONSE:

c) All information statements and returns filed with the IRS which identifies the name and address of all recipients of interest and original issue discount that meets the provisions of a U.S. obligor making payments to a foreign person under the Tax Code §§ 871(a)(1), 881(a), 1441(a), 1442(a) and § 6049

RESPONSE:

18) A description whether the Special Purpose Vehicle or the originator is the “issuer” as that term is defined under 15 USC § 80a-2(a)(22) for registration purposes under the Investment Company Act of 1940;

RESPONSE:

19) A description whether the pool or securities issued were required to register under the statutory or statistical definition of the 1940 Act? i.e., pursuant 17 CFR 270.3a-7 and if exempt, describe the characteristics that define the exception and avoids all requirements;

RESPONSE:

20) The allonge, front and back, affixed to my original promissory note with indorsements (including the dates endorsed) relating to and/or associated with this transaction, as outlined in the SEC Prospectus [Rule 424(b)(5)], Account No.: 0000882377-04-001138 filed on June 1, 2004 as follows: Argent Mortgage Company, LLC (Originator) sold the mortgage loan to Ameriquest Mortgage Company (Seller & Master Servicer) who then sold the mortgage loan to Argent Securities, Inc. (Depositor).

RESPONSE:

Please be aware that the information contained in or filed with a Registration Statement as that term is defined under 15 USC § 77b(a)(8) shall be made available to the public under 15 U.S.C. § 77f(d) including any amendment thereto and any report, document, or memorandum filed as part of such statement or incorporated therein by reference.

Nothing in the above requested documentation is proprietary under SEC rules, and is needed to determine accurate assignee liability and any pecuniary interest of Servicers and/or Trustees. Failure to provide the requested information confirms willful deceit on the part of Deutsche Bank National Trust Company, has legal implications and application under 17 CFR § 240.10b-5; (Rule 10b-5), of the 1934 Act, and applies to everyone, including any reference to Internal Revenue Code for evasion or money-laundering.

Prepared and Submitted by: XXX

XXX Avenue

Rosedale, NY 11422


I, XXX certify that on this 29th day of the month of October, 2009.

1. A true copy of the 12-page Request for Production Of Documents was served on The New Superior Court of New Jersey, Chancery Division – Essex Vincinage, at 212 Wasington Street, Eighth Floor, Newark, New Jersey.

2. A copy of the foregoing was mailed on October 28 2009 to Ralph F. Casale, Esq., 290 Route 46 West, Denville, New Jersey 07834 by Express Mail No. XXX.

Dated: Queens New York

This _________ day of ___________ 2009 XXX

XXX Ave

Rosedale, NY 11422

•

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INTERROGATORIES SAMPLE

--------------------------

SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION – ESSEX VICINAGE

------------------------------------------------------------------X Civil Action

Deutsche Bank National Trust Company, As Trustee Of

Argent Securities, Inc. Asset Backed Pass Through

Certificates, Series 2004-PW1

Docket Number: XXX

REQUEST FOR

INTERROGATORIES

Plaintiff(s),

vs.

XXX; John Doe,

Husband Of XXX XXX Avenue

Rosedale, NY 11422

Defendant(s)/Pro Se

------------------------------------------------------------------X

REQUEST FOR DISCOVERY: INTERROGATORIES

i). Defendant, XXX, serves these interrogatories on Deutsche Bank National Trust Company, as authorized by Case Management Order dated September 30, 2009, and by the Federal Rule of Civil Procedure 33. Deutsche Bank National Trust Company must serve an answer to each interrogatory separately and fully, in writing and under oath within 30 days after service to: XXX, XXX Ave., Rosedale, NY 11422.

INSTRUCTIONS

ii). These requests for interrogatories are directed toward all information known or available to Deutsche Bank National Trust Company - not its lawyer, Ralph F. Casale, Esq. - including information contained in the records and documents in Deutsche Bank National Trust Company’s custody or control or available to Deutsche Bank National Trust Company upon reasonable inquiry.

iii). Each request for interrogatory is to be deemed a continuing one. If, after serving an answer, you obtain or become aware of any further information pertaining to that request, you are requested to serve a supplemental answer setting forth such information.

iv). As to every request for interrogatory which an authorized officer of Deutsche Bank National Trust Company fails to answer in whole or in part, the subject matter of that request will be deemed confessed and stipulated as fact to the Court.

v). Kindly attach additional sheets as required identifying the Interrogatory being answered. You have a continuing obligation to update the information in these Interrogatories as you acquire new information. If no such update is provided in a reasonable period of time that you acquired such information, it may be excluded at trial or hearing.

DEFINITIONS

vi). “You” and “your” include Deutsche Bank National Trust Company and any and all persons acting for or in concert with Deutsche Bank National Trust Company.

vii). “Document” is synonymous in meaning and equal in scope to the usage of this term in Federal Rule of Civil Procedure 34(a) and includes computer records in any format. A draft or non-identical copy is a separate document within the meaning of this term. The term “document” also includes any “tangible things” as that term is used in Rule 34(a).

viii). Parties. The term “plaintiff” or “defendant”, as well as a party’s full or abbreviated name or a pronoun referring to a party, means the party and, where applicable, (his/her/its) agents, representatives, officers, directors, employees, partners, corporate parent, subsidiaries, or affiliates.

ix). Identify (person). When referring to a person, “identify” means to give, to the extent known, the person’s full name, present or last known address, telephone number, and when referring to a natural person, the present or last known place of employment. Once a person has been identified in compliance with this paragraph, only the name of that person needs to be listed in response to later discovery requesting the identification of that person.

x). Identify (document). When referring to a document, “identify” means to give, to the extent known, the following information: (a) the type of document; (b) the general subject matter of the document; (c) the date of the document; (d) the authors, address, and recipients of the document; (e) the location of the document; (f) the identity of the person who has custody of the document; and (g) whether the document has been destroyed, and if so, (i) the date of its destruction, (ii) the reason for its destruction, and (iii) the identity of the person who destroyed it.

xi). Relating. The term “relating” means concerning, referring, describing, evidencing, or constituting, directly or indirectly.

xii). Any. The term “any” should be understood in either its most or its least inclusive sense as necessary to bring within the scope of the discovery request all reasons that might otherwise be construed to be outside of its scope.

REQUEST FOR INTERROGATORIES

1. Please identify each person who answer these interrogatories and each person (attach pages if necessary) who assisted, including attorneys, accountants, employees of third party entities, or any other person consulted, however briefly, on the content of any answer to these interrogatories.

ANSWER:

2. For each of the above persons please state whether they have personal knowledge regarding the subject loan transaction.

ANSWER:

3. Please state the date of the first contact between Deutsche Bank National Trust Company and the borrower in the subject loan transaction, the name, address and telephone number of the person(s) in your company who was/were involved in that contact.

ANSWER:

4. Please identify every potential party to this lawsuit.

ANSWER:

5. Please identify the person(s) involved in the underwriting of the subject loan. "Underwriting" refers to any person who made representations, evaluations or appraisals of value of the home, value of the security instruments, and ability of the borrower to pay.

ANSWER:

6. Please identify any person(s) who had any contact with any third party regarding the securitization, sale, transfer, assignment, hypothecation or any document or agreement, oral, written or otherwise, that would effect the funding, closing, or the receipt of money from a third party in a transaction that referred to the subject loan.

ANSWER:

7. Please identify any person(s) known or believed by anyone at Deutsche Bank National Trust Company who had received physical possession of the note and allonges, the mortgage, or any document (including but not limited to assignment, endorsement, allonges, Pooling and Servicing Agreement, Assignment and Assumption Agreement, Trust Agreement, letters or email or faxes of transmittals including attachments) that refers to or incorporates terms regarding the securitization, sale, transfer, assignment, hypothecation or any document or agreement, oral, written or otherwise, that would effect the funding, or the receipt of money from a third party in a transaction, and whether such money was allocated to principal, interest or other obligation related to the subject loan.

ANSWER:

8. Please identify all persons known or believed by anyone in Deutsche Bank National Trust Company or any affiliate to have participated in the securitization of the subject loan including but not limited to mortgage aggregators, mortgage brokers, financial institutions, Structured Investment Vehicles, Special Purpose Vehicles, Trustees, Managers of derivative securities, managers of the company that issued an Asset-backed security, Underwriters, Rating Agency, Credit Enhancement Provider.

ANSWER:

9. Please identify the person(s) or entities that are entitled, directly or indirectly to the stream of revenue from the borrower in the subject loan.

ANSWER:

10 Please identify the person(s) in custody of any document that identifies the loan servicer(s) in the subject loan transaction.

ANSWER:

11. Please identify any person(s) in custody of any document which refers to any instruction or authority to enforce the note or mortgage in the subject loan transaction.

ANSWER:

12. Other than people identified above, identify any and all persons who have or had personal knowledge of the subject loan transaction, underwriting of the subject loan transaction, securitization, sale, transfer, assignment or hypothecation of the subject loan transaction, or the decision to enforce the note or mortgage in the subject loan transaction.

ANSWER:

13. Please state address, phone number, and employment history for the past 3 years of Tamara Price, Vice President, Argent Mortgage Company, LLC, “designated as the Assignor” of the mortgage loan to Deutsche Bank National Trust Company (Assignment of Mortgage recorded in Essex County Register’s Office on June 25, 2008).

ANSWER:

14. Please state the date on which Argent Mortgage Company, LLC (originator) sold the mortgage loan to Ameriquest Mortgage Company (Seller and Master Servicer).

ANSWER:

15. Please state the date on which Ameriquest Mortgage Company (Seller and Master Servicer) sold the mortgage loan to Argent Securities, Inc. (Depositor).

ANSWER:

16. Did Argent Mortgage Company, LLC (originator) or previous servicers of this account receive any compensation, fee, commission, payment, rebate or other financial considerations from Ameriquest Mortgage Company (Seller and Master Servicer) or any affiliate or from the trust funds, for handling, processing, originating or administering this loan?

ANSWER:

17. If yes, please describe and itemize each and every form of compensation, fee, commission, payment, rebate or other financial consideration paid to Argent Mortgage Company, LLC, the originator or previous servicers of this account by Ameriquest or any affiliate, or from the trust fund.

ANSWER:

18. Please identify any party, person or entity known or suspected by Deutsche Bank National Trust Company or any of your officers, employees, independent contractors or other agents, or servants of your company who might possess or claim rights under the subject loan or mortgage and/or note.

ANSWER:

19. Please identify the custodian of the records that would show all entries regarding the flow of funds for the subject loan transaction prior to and after closing of the loan. (Flow of funds, means any record of money received, any record of money paid out and any bookkeeping or accounting entry, general ledger and accounting treatment of the subject loan transaction at your company or any affiliate including but not limited to whether the subject loan transaction was ever entered into any category on the balance sheet at any time or times, whether any reserve for default was ever entered on the balance sheet, and whether any entry, report or calculation was made regarding the effect of this loan transaction on the capital reserve requirements of your company or any affiliate.)

ANSWER:

20. Please identify the auditor and/or accountant of your financial statements or tax returns.

ANSWER:

21. Please identify any attorney with whom you consulted or who rendered an opinion regarding the subject loan transaction or any pattern of securitization that may have effected the subject loan transaction directly or indirectly.

ANSWER:

22. Please identify any person who served as an officer or director with Deutsche Bank National Company or Argent Mortgage Company LLC commencing with 6 months prior to closing of the subject loan transaction through the present. (This interrogatory is limited only to those people who had knowledge, responsibility, or otherwise made or received reports regarding information that included the subject loan transaction, and/or the process by which solicitation, underwriting and closing of residential mortgage loans, or the securitization, sale, transfer or assignment or hypothecation of residential mortgage loans to third parties.)

ANSWER:

23. Did any investor/certificate holder approve or authorize foreclosure proceedings on XXX’s property?

ANSWER:

24. Please identify the person(s) involved or having knowledge of any insurance policy or product, plan or instrument describing over-collateralization, cross-collateralization or guarantee or other instrument hedging the risk of default as to any person or entity acting as an issuer of any securities or certificates. (Such instrument(s) relate to the composition

of a pool, tranche or other aggregation of assets that was created, included or referred to the subject loan and the pool or aggregation was transmitted, transferred, assigned, pledged or hypothecated to any entity or buyer. A person who “transmitted, transferred, assigned, pledged or hypothecated” refers to any person who suggested, approved, received or accepted the composition of the pool or aggregation made or confirmed representations, evaluations or appraisals of value of the home, value of the security instruments, ability of the borrower to pay.)

ANSWER:

25. Please identify the person(s) involved or having knowledge of any credit default swap or other instrument hedging the risk of default as to any person or entity acting as an issuer of any securities or certificates. (Such instrument(s) relate to the composition of a pool, tranche or other aggregation of assets that was created, included or referred to the subject loan.)

ANSWER:

Submitted by: XXX

XXX Ave

Rosedale, NY 11422


I, I, XXX certify that on this 29th day of the month of October, 2009.

1. A true copy of the 10-page Request for Interrogatories was served on The New Superior Court of New Jersey, Chancery Division – Essex Vincinage, at 212 Wasington Street, Eighth Floor, Newark, New Jersey.

2. A copy of the foregoing was mailed on , 2009 to

Dated: Queens New York

This _________ day of ___________ 2009 XXX

XXX Ave

Rosedale, NY 11422

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Shawn Alexander Posted 04/06/10 at 09:33 AM Reply with quote #31

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I noticed the document request Tamara Price employment history for the past 3 years. Can you provide me more information about if Ms. Price held her self out to be the V.P of Argent or another Bank? Do you have any information on a Manual Rivas signing on behalf of DB as authorized agent? If so,...can you send me a copy of the signature you have for him? My email address is [email protected]. Has DB answered discovery or are they giving you the run around?

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MOTION TO DISMISS - FLORIDA - IF THE FORECLOSURE LAWSUIT IS FILED AFTER FEBRURARY - DATE OF THE SUPREME COURT OPINION

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Thank you Mr. J. Ort Esq. 407-228-9770 Orlando

Here is the text of an additional argument that you can add to your MTD. I’ve raised it a few times now, and no mill has responded to it yet:

Defendant, ________, (“_________”) by and through undersigned counsel, and pursuant to Rule 1.140, Florida Rules of Civil Procedure, file this Motion to Dismiss Plaintiff’s Complaint, and in support state:

1. On February 11, 2010, the Florida Supreme Court released SC09-1460 In re: Amendments to the Florida Rules of Civil Procedure.

2. The opinion amends Rule 1.110(b) to require verification of mortgage foreclosure complaints involving residential real property. The Court cited this basis:

The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded ―lost note counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.

3. The Order requires the document filed to include an oath, affirmation or the following statement “Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”

4. The Order states “[t]he amendments shall become effective immediately upon the release of this opinion.”

5. The Florida Supreme Court Manual for Internal Operating Procedures defines when an opinion is released. It provides:

Section V. Release of Opinions.

A. Routine Release. Copies of opinions ready for release to the public are delivered to each justice no later than Friday at noon. At any time before 10:00 a.m., ET, the following Thursday, any justice may direct the clerk not to release an opinion. Unless otherwise directed, on Thursday morning at 11:00 a.m., ET, the clerk electronically releases the opinions that were furnished to the justices the preceding Friday. Publishers other than the Court's official reporter may receive copies at the rate of fifty cents per page, and all other interested persons may receive copies at the cost of one dollar per page. Opinions are posted on the Decisions and Rules Page of the Court's website located at http://www.floridasupremecourt.org/decisions/opinions.shtml by noon on the day they are released.

Fla. S. Ct. IOP Manual § II

6. The subject opinion was posted on the Court’s website, and released on February 11, 2010. (See attached Exhibit “A”).

7. The instant lawsuit was filed after February 18, 2010.

8. Plaintiff did not verify its pleading. Accordingly, Plaintiff’s complaint should be dismissed for failure to comply with Rule 1.110(b).

WHEREFORE, _________ respectfully request Plaintiffs' Complaint be dismissed with prejudice and for such other relief as this Court deems just and proper.

F. 407-264-6288

ortlawfirm.com

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IN THE CIRCUIT COURT OF THE 16th JUDICIAL CIRCUIT IN AND

FOR MONROE COUNTY, FLORIDA

Plaintiff name

Plaintiff,

CASE NO.: XXXXXXXX

vs.

Defendant name

Defendants.

_______________________________________/

DEFENDANTS’ MOTION FOR LEAVE TO FILE AMENDED ANSWER

COMES NOW the Defendants, Your name and your name (Hereinafter referred to as “Defendants”) by and through the undersigned counsel, and hereby respectfully requests this Honorable court to grant leave, thereby permitting Defendants to file the attached Amended Answer, and states as follows:

1. The Plaintiff has filed a lawsuit against the Defendants, for what purports to be a foreclosure action.

2. Defendants filed pro se answers in the above-mentioned-mentioned matter.

3. Defendants’ counsel has just been retained in this matter and by and through undersigned counsel, the Defendants requests leave to amend their answer.

4. It is in the interest of justice to permit Defendants to amend their Answer as it allows for the proper resolution of the dispute between all the parties.

5. Attached to this Motion to Amend the Answer is Defendants’ Amended Answer.

MEMORANDUM IN SUPPORT FOR THE MOTION TO AMEND ANSWER AND COUNTERCLAIM

Rule 1.190, Fla. R. Civ. P., requires that “leave of court [to amend

pleadings] shall be given freely when justice so requires,” and that the court may permit a pleading to be amended “at any time in furtherance of justice.” Fla. R. Civ. P. 1.190(a), (e) (emphasis added). Indeed, Florida’s well reasoned public policy overwhelmingly favors the liberal amendment of pleadings so that cases may be decided on their merits. Craig v. East Pasco Med. Ctr., Inc., 650 So. 2d 179 (Fla. 2d DCA 1995). All doubts must be resolved in favor of allowing amendment of pleadings. Thompson v. Publix Supermarkets, Inc., 615 So. 2d 796 (Fla. 1st DCA 1993). The failure to permit amendment constitutes an abuse of discretion unless it clearly appears that the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. Carter v. Ferrell, 666 So. 2d 556 (Fla. 2d DCA 1995).

Leave to amend is especially appropriate when the amendment is based on

the same conduct, transaction or occurrence as the original pleading the movant seeks to amend. Dimick v. Ray, 774 So. 2d 830 (Fla. 4th DCA 2000) (holding that proposed addition of claims not previously made would not prejudice defendants since the proposed amendment was filed prior to trial); Florida East Coast Railway Co. v. Ssanford Sshulman, 481 So. 2d 965 (Fla. 3d DCA 1986) (holding that trial court did not abuse its discretion in permitting plaintiff to amend his complaint after he had rested his case at trial); Passekoff v. Kaufman, 392 So. 2d 971 (Fla. 3d DCA 1981)(finding no indication that privilege to amend was being abused, where the motion to amend was filed before case was set for trial); Knipp v. Weinbaum, 351 So. 2d 1081 (Fla. 3d DCA 1977)(“liberal construction of [Rule 1.190(a)] is particularly applicable in a situation … where the amendment is based on the same conduct, transaction and occurrence upon which the plaintiff had brought his original claim”), citing Turner v. Trade Mor Inc., 252 So. 2d 383 (Fla. 4th DCA 1971). Indeed, the true test for determining whether the proposed amendments should be allowed under Florida law is “whether the pleading as amended is based on the same specific conduct, transaction or occurrence between the parties upon which the plaintiff tried to enforce his original claim.” David Miller Distributing Company, Inc. v. Florida National Bank at Arlington, 342 So. 2nd 856 (Fla. 1st DCA 1977).

For instance, in Pasekoff, 392 So. 2d 971, the Third District reversed

the trial court’s denial of the plaintiff’s motion to amend the third amended complaint in an action to quiet title, where the proffered amendment involved the same transactions as the plaintiff’s earlier pleadings, and the only amendment set forth an additional legal theory. See id. at 976. The Third District stated, in relevant part:

Since all of the factual allegations had been revealed in earlier discovery, the [defendants] could not have been, and, indeed make no claim that they were surprised by the contents of the amendment. Furthermore, when the motion was

made, the case had not yet been set for trial… Finally, there was no indication that the “privilege to amend” had been or was being abused.

Id. (emphasis added). Given that the conduct, transactions and occurrences forming the basis of the original pleadings filed by the Plaintiff is the same as the proposed amended pleadings, and the case is not set for trial an amendment is proper.

Plaintiff Will Not Be “Prejudiced” by Defendants Filing of the Proposed Amended Pleadings

Moreover, Florida courts will not find the existence of “prejudice,”

unless the amendment proposes new and different causes of action either during trial or after the trial has been completed. Dimick v. Ray, 774 So. 2d 830 (Fla. 4th DCA 2000). In Dimick, the court examined the definition of “prejudice” in light of a party’s desire to amend a pleading, and stated:

The cases have analyzed this prejudice element primarily in respect to the defendant’s ability to prepare for the new allegations prior to trial on the merits. For instance, in [numerous Florida cases] …amendments were not allowed which proposed to add new and different causes of action either during trial or after the trial had been completed. The prejudice in adding new causes of action or claims in those cases was obvious since the defendants had already fully prepared for, and in some instances, had actually completed the trial when the plaintiff’s sought to add different claims.

6. Plaintiff will not be prejudiced by the amendment of the pleadings and said amendment is proper in the interest of justice.

WHEREFORE, the above-stated reasons the Defendants respectfully requests this Honorable Court enter judgment and allow the Defendants to serve the attached Answer upon the Plaintiff therefore amending the Defendants’ original Answer to reflect the proper pleading and award such other additional relieve as the Court deems just, necessary and proper.


I HEREBY CERTIFY that a true and complete copy of the foregoing has been furnished via facsimile 305-296-1580 and U.S. Mail to xxxx Esq., Post Office Box 370, Key West, Florida 33041 this ____day of February 2005.

___________________

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RESEARCH APPEAL COURT OPINION - CASE LAW IN YOUR STATE

-------------------------------------------------------------

Quote from http://www.jurisdictionary.com

Many of you are losing your cases because you are arguing the law instead of citing written appellate court opinions that agree with you, authorities that control your trial judge!

While your opinions are important to you, they don't count for much in court.

The opinions that count in court (i.e., the ones that control your trial judge) are the written opinions of appellate courts that can reverse the decisions of your trial judge if the trial judge goes against them.

Learn how to control your trial judge by researching and drafting written memoranda that cite appellate opinions the judge cannot ignore!

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FLORIDA MOTION TO DISMISS WITH PREJUDICE IF THE CASE IS FILED AFTER SUPREME COURT ORDER FEB 11/2010

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IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, IN AND FOR PINELLAS COUNTY, FLORIDA CIVIL DIVISION

NATIONSTAR MORTGAGE LLC, CASE NO. lO-6330-CI-20

PLAINTIFF,

v.

CRAIG K. LUNT AND DOROTHEA C. LUNT, DEFENDANT.

DEFENDANT'S MOTION TO DISMISS ACTIONIMOTION FOR MORE DEFINITE STATEMENT

COMES NOW, the Defendants CRAIG K. LUNT and DOROTHEA C. LUNT (hereinafter "Defendants") by and through the undersigned counsel MATTHEW D. WEIDNER and respectfully moves this Court to DISMISS WITH PREJUDICE the above entitled civil action, pursuant to Rules 1.420(b) and 1.11O(b) Fla. R. Civ. P., and precedent case law, and in support thereof states: FACTS

1. This is an action for foreclosure of residential real property owned by the Defendants.

1.The named Plaintiff in this case is ABC (hereinafter "Plaintiff'). The Plaintiff initiated this action when it filed its complaint on or about April 20. 2010.

2.The Plaintiffs complaint is devoid of any oath, affirmation, or verification statement which should state "under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief' as mandated by Fla. R. Civ. Pro. 1.11 O(b).

4. Upon information and belief, the Plaintiffs counsel deliberately chose to not include

such an oath, affirmation, or verification statement in the complaint.

1.The Plaintiffs counsel has been warned repeatedly by defense attorneys across the state, including your undersigned counsel, of their failure to include this information in foreclosure complaints filed by their firm. Nevertheless, to date, the Plaintiffs counsel has refused to provide any reasonable justification, either in this case or in any case known to your undersigned counsel, for their failure to abide by the express mandate of Rule 1.11 O(b).

2.Moreover, upon information and belief, the Plaintiff itself has manifested to its counsel, either directly or indirectly, that counsel should not comply with Rule 1.11 O(b) for reasons herein unknown.

STANDARD OF REVIEW

1.In ruling on a defendant's motion to dismiss, a trial court is limited to the four corners of the Complaint, and it must accept all the allegations in the Complaint as true. See Lutz Lake Fern Rd. Neighborhood Groups, Inc. v. Hillsborough County, 779 So.2d 380, 383 (Fla. 2d DCA 2000).

1.A motion to dismiss tests whether a plaintiff has stated a cause of action. Crocker v. Marks, 856 So.2d ] 123 (Fla. 4th DCA 2003).

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION

I. The Plaintiff's Complaint Should be Dismissed for Failure to Attach a Verified Complaint

a. LegalStandards

9. Fla. R. Civ. Pro. 1.420(b) provides, in pertinent part, that "[a]ny party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply

with these rules or any order of court." Thus, any judgment which is not in compliance with the

Florida Rules of Civil Procedure is null and void.

1.The dismissal of action or claim for failure of an adverse party to comply with the Rules of Civil Procedure or any order of the court operates as an adjudication on the merits. =="--'-'Airport Mini-Storage, 782 So.2d 983 (Fla. 3d DCA 2001).

1.In Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993), the Florida Supreme Court listed six factors which trial courts should use in determining whether to dismiss a case with prejudice and noted that "if a sanction less severe than dismissal with prejudicial appears to be a viable alternative, the trial court should employ such an alternative." ld at 818. The trial court is therefore allowed other measures of dispute resolution, such as dismissal without prejudice, should the court feel dismissal without prejudice is a more proper remedy.

2.Nevertheless, the six factors listed in Kozel are as follows: (1) whether attorney's disobedience was willful, deliberate, or contumacious; (2) whether attorney was previously sanctioned; (3) whether client was personally involved in act of disobedience; (4) whether the disobedience prejudiced opposing party; (5) whether attorney offered reasonable justification for noncompliance; and (6) whether the disobedience created significant problems of judicial administration. Id at 818.

1.The Florida Constitution gIves the Florida Supreme Court complete authority to promulgate or rescind the Florida Rules of Civil Procedure. Specifically, Article V, Section 2(a) of the Florida Constitution provides that "[t]he supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause

shall be dismissed because an improper remedy has been sought." See also Ser-Nestler, Inc. v.

General Finance Loan Co. of Miami Northwest, 167 So.2d 230 (3d DCA 1964) ("Supreme Court is vested with sole authority to promulgate, rescind and modify the Florida Rules of Civil Procedure, which remain inviolate until changed by Supreme Court"), appeal dismissed 174 So.2d 35; State v. Battle, 302 So.2d 782 (3d DCA1974) ("language of the rules promulgated by the Supreme Court of Florida are binding upon the trial and appellate courts"); State v. Lvons, 293 So.2d 391 (2d DCA 1974) ("Supreme Court has right to adopt a rule at variance from its own precedents").

14. On February 11,2010 by the Florida Supreme Court amended Fla. R. Civ. Pro. LllO(b)

to read

[w]hen filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document shall include an oath, affirmation, or the following statement: Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief. Emphasis added.

Therefore, mortgage foreclosure action filed after February 11, 2010 must be verified.

15. The Supreme Court noted that

[t]he primary purposes of this amendment are: (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate;

(2) to conserve judicial resources that are currently being wasted on inappropriately pleaded "lost note" counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations. In re: Amendments to the Florida Rules of Civil Procedure, No. SC09-1579, (Feb. 1], 2010).

16. Furthermore, Fla. Stat. §92.525 provides that

(1) When it is authorized or required by law, by rule of an administrative agency, or by rule or order of court that a document be verified by a person, the verification may be accomplished in the following manner:

(a) Under oath or affirmation taken or administered before an officer authorized under s. 92.50 to administer oaths; or

(b) By the signing of the \\-Titten declaration prescribed in subsection (2).

(2) A written declaration means the following statement: "Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true," followed by the signature of the person making the declaration, except when a verification on information or belief is permitted by law, in which case the words "to the best of my knowledge and belief" may be added. The written declaration shall be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration.

See also Muss v. Lennar Florida Partners L L.P., 673 So. 2d 84 (Fla. 4th DCA 1996).

b. Argument

1.Here, the Plaintiff has failed to file a verified complaint. The instant action is one for foreclosure of residential real property which was filed on or about April 20, 20 I 0 and therefore squarely comes within the authority of the revised Florida Rule of Civil Procedure. Nevertheless, the Plaintiff's Complaint does not contain an oath, affirmation, or the verification statement as required by Fla. R. Civ. Pro. 1.11O(b).

1.A dismissal with prejudice is warranted based upon the six factors set forth by the Florida Supreme Court in Kozel have expressly been met. Specifically:

1. The disobedience by the Plaintiff's counsel was willful and deliberate;

11. While Plaintiff's counsel may not have been expressly sanctioned for this act, Plaintiff's counsel has been warned by defense attorneys across the State, including your undersigned counsel, that their action was in violation of Rule

1. 110(b);

Ill. Upon information and belief, the Plaintiff itself was involved in the disobedience as it, directly or indirectly, manifested to its counsel to avoid compliance with the Rule

IV. The disobedience unduly prejUdices the Defendants through coercing them to spend time and resources on a claim which may prove frivolous or one which is otherwise not subject to adjudication;

v. The Plaintiff's counsel has not offered a reasonable explanation as to its noncompliance; and

VI. The disobedience creates significant problems to judicial administration as it forces the courts to also expand time and resources on claims which may prove frivolous or otherwise not subject to adjudication.

19. The Plaintiff's complaint thus frustrates the purposes given by the Florida Supreme Court for the amendment to Rule 1.110(b) making dismissal with prejudice is warranted under the circumstances.

WHEREFORE, because the Plaintiff has failed to file a verified complaint and because the six factors set forth in Kozel have been expressly met, the Defendants respectfully request that the Court dismiss with prejudice the instant case and any other relief the Court deems just and proper.


I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by

l'\.F'J-J..

U.S. Mail on this 'Mclay of April, 2010 to MICHAEL GELETY, Law Offices of Marshall C. Watson, P.A., 1800 N.W. 49th Street, Suite 120, Fort Lauderdale, FL 33309.

MATTHEW