amended response and objection to motion for summary judgment in foreclosure

IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA

DEUTSCHE BANK NATIONAL TRUST COMPANY AS INDENTURE TRUSTEE FOR AMERICAN HOME MORTGAGE INVESTMENT TRUST 2006-1, MORTGAGE-BACKED NOTES, SERIES 2006-1.

Plaintiff, vs. CASE NO. 09-CA-050697

ELENA GONZALEZ et. al.

Defendant(s). ______________________________________/

DEFENDANT’S AMENDED VERIFIED RESPONSE AND OBJECTION TO PLAINTIFF’S MOTION FOR SUMMARY FINAL JUDGMENT OF FORECLOSURE

COMES NOW the Defendant, ELENA GONZALEZ (hereinafter referred to as

“GONZALEZ”) by and through their undersigned counsel and states:

1. Plaintiff has filed in this action its Motion for Summary Judgment of Foreclosure

(“Motion”). In its Motion, the Plaintiff alleges that it is entitled to such Final Judgment as a

matter of law. However, the Plaintiff has failed conclusively to establish the absence of any

genuine issue of material fact. In particular, that it is the owner and holder of the promissory note

and mortgage subject to this foreclosure action.

2. It is well established that on Motion for Summary Judgment, it is the burden of

the moving party to show conclusively the absence of any genuine issue of material fact. Harvey

Building., Inc. v. Haley, 175 So.2d 780 (Fla. 1965); Prudential-L.M.I. Commercial v. Sears, 572

So.2d 15 (Fla.3d DCA 1990). If the record reflects the existence of any genuine issue of material

fact, or the possibility of any issue, or even the slightest doubt that an issue might exist,

then Summary Judgment is improper. Grissett v. Circle K. Corporation of Texas, 593 So.2d 291

(Fla.2d DCA 1992).

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I. FRAUD - PLAINTIFF LACKED STANDING TO SUE WHEN IT FILED COMPLAINT

3. The Plaintiff has committed fraud upon the court in that the Plaintiff has not

properly set forth or proven the chain of title and ownership of the note. The plaintiff makes

allegations in its complaint that conflict with the documents attached thereto and in its exhibits in

support of its Motion For Final Summary Judgment as to who is the actual holder and owner of

the note and mortgage subject to this foreclosure. The Defendant raised this issue in her Answer

and Affirmative Defenses filed and served on the Plaintiff prior to the hearing on the Motion for

Summary Judgment.

4. When exhibits are inconsistent with the plaintiffs allegations of material fact as to

whom 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.3d DCA 1983).

5. Florida Rule of Civil Procedure 1.130(b) provides in pertinent part: “Any exhibit

attached to a pleading shall be considered a part thereof for all purposes.” Because the facts

revealed by Plaintiffs exhibits are inconsistent with Plaintiffs allegations as to its ownership of

the subject note and mortgage, those allegations are neutralized and Plaintiffs complaint is

rendered objectionable. Greenwald v. Triple D Properties, Inc., 424 So.2d 185, 187 (Fla.4th

DCA 1983).

6. The allegations set forth in the Complaint, the exhibits attached to the Complaint,

and affidavits filed with the court are inconsistent for the following reasons:

a. The Complaint alleges that the Plaintiff is the owner and holder of the note and

mortgage subject to the foreclosure action. However, the Plaintiffs complaint and Lis

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Pendens was filed on January 12, 2009 with the Lee County Florida Clerk of Courts

office. Subsequently, under a Notice of Filing, the Plaintiff filed a copy of the

Assignment of the Mortgage to the same entity with a date of May 18, 2009. The

assignment was recorded January 21, 2009, after the Foreclosure Complaint and Lis

Pendens was filed indicating that the Plaintiff trust entity was the owner and holder of the

note when in fact at that time it had no interest in the subject mortgage and note. And

finally, based on the Plaintiffs assignment that they are relying on to show their

ownership interest, it reflects a “ASSIGNMENT EFFECTIVE DATE” JANUARY 14 ,

2009, TWO DAYS AFTER the Foreclosure complaint was filed. Thus, the Plaintiff committed

fraud upon the Court when it filed its Foreclosure complaint on January 12, 2009.

7. Florida Rule of Civil Procedure 1.210(a) 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.”

8. The Plaintiff in this action meets none of those criteria. Because the exhibits

attached to Plaintiffs complaint and filed in support of its motion for summary judgment are

inconsistent with Plaintiffs allegations as to ownership of the subject promissory note and

mortgage, Plaintiff has failed to establish itself as the real party in interest and has failed to state

a cause of action.

9. In Florida, the prosecution of a foreclosure action is by the owner and holder of

the mortgage and the note. Your Construction Center, Inc. v. Gross, 316 So.2d 596 (Fla.4th DCA

1975). Furthermore, the general rule in actions at law is that the right of a plaintiff to recover

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must be measured when the suit was instituted. Voges v. Ward, 98 Fla. 394, 123 So. 785, 793

(1929).

10. The Defendant recognizes the precedent set in WMSpecialiy Mortgage, EEC v.

Salmon, 874 So.2d 680 (Fla.4th DCA 2004) regarding the assignment of a mortgage. However,

as the Second District Court of Appeals noted, 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 as of the date of the

commencement of the action. The plaintiffs failure to meet the standing requirements as of the

commencement of this foreclosure action renders the complaint fatally defective and, therefore

constitutes misrepresentation as to who the Plaintiff really is. The assignment cannot post date

the filing of this action if assignment does not relate back to the commencement of the litigation.

Progressive Express Insurance Company v. McGrath Community Chiropractic, 913 So.2d 1281,

1286 (Fla.2nd DCA 2005).

11. Standing is an essential element of a justiciable case or controversy and 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 the real party in interest entitled to bring the

claim. This entitlement to prosecute a claim in Florida courts rests exclusively in those persons

granted by substantive law, the power to enforce the claim. Kumar Corp. v. Nopal Lines, Ltd. et

al, 462 So.2d 1178 (Fla.3d DCA 1985); Gen. Dev. Corp. v. Kirk, 251 So.2d 284, 286 (Fla.2d

DCA 1971).

12. “The determination of standing to sue concerns a court’s exercise of jurisdiction

to hear and decide the cause pled by a particular party.” See Progressive at 1285. The defense of

lack of jurisdiction of the subject matter may be raised at any time. Fla. Rule Civ. Pro. 1.140 (h)

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(2). The Court herein lacks jurisdiction over the matter because the plaintiff failed to meet the

standing requirements as required by Florida law. See Fla. Rule Civ. Pro. 1.210(a), infra.

13. The Plaintiff, in its complaint alleges that it “owns and is entitled to enforce the

Note and Mortgage by reason of assignment of mortgage” however as referenced hereinabove,

the purported assignment was filed and recorded after the complaint was filed. Therefore, at the

time of the filing of the complaint the plaintiff did not have ownership or the right to enforce the

Note and Mortgage. See Progressive Infra. The Plaintiff clearly misrepresented themselves as the

real party in interest and the holder in due course with legal standing to bring this cause of action

against the defendant when it filed.

14. Defendant further acknowledges the general rule that the lack of standing is an

affirmative defense that must be raised by the defendant and the failure to raise it generally

results in waiver Kissman v. Panizzi, 891 So.2d 1147 (Fla.4th DCA 2005). However, in the case

of Maynard v. Florida Board of Education, 998 So.2d 1201, 1206 (Fla.2d DCA 2009) the court

found that although standing to sue may not be raised for the first time on appeal; it does not

necessarily require that standing be raised only be means of an affirmative defense in an answer.

The court concluded that the pertinent question is whether the issue was raised at the trial court,

not how it was raised. See Maynard at 1206. Furthermore, the court held that since the defendant

did raise the issue of standing in his motion to set aside the verdict and judgment, that the issue

was preserved and therefore not waived. Id. The appellate court ruled that the trial court erred in

not granting the defendant’s motion to set aside the verdict and judgment and reversed the final

judgment holding that a state entity may not maintain a malicious prosecution action against an

individual who brought the original action. Id However, in this case the Defendant in her answer

raised the issue of standing in her Affirmative Defenses paragraphs 1 through 4.

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II. FRAUD - PLAINTIFF LACKS STANDING TO SUE BECAUSE IT IS NOT THE HOLDER IN DUE COURSE OF THE SUBJECT

MORTGAGE AND NOTE

15. Plaintiff has committed slander of title by attempting to foreclose on property in

which it has no interest nor standing to sue in this foreclosure action.

16. Defendant’s home, encumbered by a mortgage and promissory note made with

the originator and mortgagee/lender AMERICAN HOME MORTGAGE ACCEPTANCE INC.,

is the property at issue in this Foreclosure action. The Plaintiff or trust entity DEUTSCHE

BANK NATIONAL TRUST COMPANY AS INDENTURE TRUSTEE FOR AMERICAN

HOME MORTGAGE INVESTMENT TRUST 2006-1, MORTGAGE-BACKED NOTES,

SERIES 2006-1, also known as a “SPV” became an alleged successor in interest to the originator

and issued securities collateralized by the mortgage under a master pooling and servicing

agreement by which all legal and equitable interest was transferred to the certificate holders.

Plaintiff trustee is acting in the capacity of the alleged representative for and nominee of the

certificate holders for the purposes of foreclosure of the property because the loan is allegedly in

default. However, it is impossible for the Plaintiff trustee to be the holder or owner of the note in

question in the Foreclosure action.

17. Since the mortgage in question was securitized, the mortgage was rendered

unenforceable. Securitization of the mortgage created restrictions upon modification of the

mortgage which had not been approved by the mortgagor. Securitization also converted the

mortgage note from an alienable, transferable instrument which was and could be sold into an

instrument which cannot be sold, transferred or alienated, without amending the terms and

conditions of the mortgage. In either case, the action renders the mortgage unenforceable as a

matter of law. Therefore, the Plaintiff trust lacked standing in the Foreclosure action because it

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does not own or hold the note and cannot have the power and authority to represent the actual

owners of the note, as a matter of law.

18. Additionally, the securitization of the mortgage in question constitutes a

conversion of the asset rendering it null, void and unenforceable. The actual holder of the note of

a pass through trust has no legal or equitable interest in the securitized mortgages. The way the

holder profits from the conversion is from fees collected from a foreclosure action. The

certificate holders, guarantors and mortgage insurers bear the losses. A foreclosure avoids

litigation from disgruntled certificate holders who could claim a mortgage modification

improperly resulted in a financial loss. By separating the incidence of loss from the authority to

foreclose, the original note has been altered resulting to a change to the mortgage without the

consent of the mortgagor. The conversion of the mortgage to mortgage backed securities renders

the mortgage unenforceable. The end result is that the interests of the Defendant as mortgagor

are adversely and materially affected by these changes.

19. Furthermore, the Plaintiff in the Foreclosure does not have standing to sue since it

is an SPV doing business in Florida as an unregistered trust in violation of Florida law.

a. The Plaintiff Trustee in the Foreclosure action claims to be acting on behalf of a

mortgage trust. The mortgage trust has issued certificates to investors as public securities.

It has issued certificates to investors secured by a Florida mortgage. It is not an express

trust under the Florida Trust Code. The Trust is a common law declaration of trust under

Section 609 of Florida Statutes. The Trust is an association of two or more persons for

the purpose of transacting business in Florida. Section 609.01 Id. The Plaintiff entity

trust, before offering securities in the form of certificates to investors, was required to file

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with the Secretary of State a true and correct copy of the Declaration of Trust under

which the trust proposes to conduct its business.

“609.02 Filing a declaration of trust.--Every such organization organized for the

purpose of transacting business in this state, or organized in this state for the

purpose of transacting business elsewhere, which intends to sell or offer for sale any

units, shares, contracts, notes, bonds, mortgages, oil or mineral leases or other security of

such association shall, prior to transacting any such business, file with the Department of

State a true and correct copy of the declaration of trust under which the association

proposes to conduct its business, which copy shall be sworn to, as being a true and

correct copy, by the chair of the board of trustees named in such declaration of trust.

When such copy shall have been filed with the Department of State it shall constitute

public notice as to the purposes and manner of the business to be engaged in by such

association. The Department of State, prior to the issuance of the certificate by it, shall

collect from the said association a filing fee of $350, which fee shall be paid by it into the

general fund of the state.”

“Upon the filing of the copy of the declaration of trust and the payment of the

filing fee, in compliance with s. 609.02, the Department of State shall issue to the

trustees named in the said declaration of trust a certificate showing that such

declaration of trust has been duly filed in its office; whereupon, such association shall be

authorized to transact business in this state; provided that all other applicable laws have

been complied with”. Section 609.3 id.

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b. The Plaintiff entity trust has failed to file its declaration of trust, not paid the

$350.00 fee and not obtained a certificate from the Department of State and has

commenced to transact its business in Florida.


filing fee, in compliance with s. 609.02, the Department of State shall issue to the

trustees named in the said declaration of trust a certificate showing that such



been complied with.” Section 609.3 id.

c. Arguably by registering the security with the Securities and Exchange

Commission, the trust and its officials are exempted from the requirements of Section

609.05 to obtain a permit to sell securities by the preemption created by Securities and

Exchange Commission authorities and other related Federal authorities. However such an

exemption does not exempt the trust from the other requirements of Chapter 609 with

which the trust has failed to comply.

20. The Defendant cannot ascertain the specific duties of the Plaintiff Trustee which

would surface in the pooling and services agreement. Upon, creation of the unit interests in the

trust, investors were solicited to purchase units of the trust and would be treated as certificate

holders.

21. The Plaintiff Trustee would have a clause in the pooling and services agreement

having the authority to issue certificates to book entry participants at such time as trustee would

deem it appropriate for such. Book entry investors were never identified by name but merely

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assigned a number. Hence, investors with significant amounts of cash could surface and purchase

interests in the trust without revealing their identity.

22. his clause in the pooling and services agreement would further illustrate to this court

that identifying the true holder in due course is virtually an impossibility.

23. In cases where the consumer/defendant has no knowledge of the industry nor has

any ability for representation, this fraud goes un-detected and un-challenged.

24. Absent the Declaration of Trust and the pooling and services agreement, Plaintiffs

are without standing as they are not the holders in due course nor owners of the purported

mortgage and note that was subject to the Foreclosure action.

III. PLAINTIFF TRUSTEE LACKS STANDING

25. The Plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY (‘Trustee)

does not have standing to sue because the Plaintiff is acting as a Special Purpose Vehicle

(“SPV”) and doing business in Florida as an unregistered trust in violation of Florida Law. The

subprime mortgage company that originated the loan that is subject to this case matter,

AMERICAN HOME MORTGAGE ACCEPTANCE, INC., transferred and/or sold its interests

in the note and mortgage to a third party who held the note and mortgage in a pool of other notes

and mortgages. Thereafter, the third party securitized and pooled together this mortgage with the

other mortgage loans, processed them and sold the mortgage pool as an investment in securities.

In this instance, AMERICAN HOME MORTGAGE ACCEPTANCE, NC, sold the loan and

mortgage to a third party who then transferred its interests to an SPV entity, in this case a trust,

AMERICAN HOME MORTGAGE INVESTMENT TRUST 2006-1 MORTGAGE BACKED

PASS-THROUGH CERTIFICATES SERIES 2006-1 (“Trust”).

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a. The Plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY, claims to

be acting on behalf of the Trust. Since, the Plaintiff Trust has sold its interest and issued

certificates to investors as public securities secured by a Florida mortgage it is not an

express trust under the Florida Trust Code. However, the Trust is a common law

declaration of trust under Section 609 of Florida Statutes. The Trust is an association of

two or more persons for the purpose of transacting business in Florida; in this case, the

sale of securities. Section 609.01 id. The Trust, before offering securities in the form of

certificates to investors, was required to file with the Secretary of State a true and correct

copy of the Declaration of Trust under which the trust proposes to conduct its business.

“609.02 Filing a Declaration of Trust.--Every such organization organized for the

purpose of transacting business in this state, or organized in this state for the purpose of

transacting business elsewhere, which intends to sell or offer for sale any units, shares,

contracts, notes, bonds, mortgages, oil or mineral leases or other security of such

association shall, prior to transacting any such business, file with the Department of State

a true and correct copy of the declaration of trust under which the association proposes to

conduct its business, which copy shall be sworn to, as being a true and correct copy, by

the chair of the board of trustees named in such declaration of trust. When such copy

shall have been filed with the Department of State it shall constitute public notice as to

the purposes and manner of the business to be engaged in by such association. The

Department of State, prior to the issuance of the certificate by it, shall collect from the

said association a filing fee of $350, which fee shall be paid by it into the general fund of

the state.”

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filing fee, in compliance with s. 609.02, the Department of State shall issue to the trustees

named in the said declaration of trust a certificate showing that such declaration of trust

has been duly filed in its office; whereupon, such association shall be authorized to

transact business in this state; provided that all other applicable laws have been complied

with”. Section 609.03. Id.

b. The Trust, before offering securities in the form of certificates to investors, was

required to file with the Secretary of State a true and correct copy of the Declaration of

Trust under which the trust proposes to conduct its business. Section 609.02 states:

“609.02 Filing a declaration of trust.-- Every such organization organized for the purpose

of transacting business in this state, or organized in this state for the purpose of

transacting business elsewhere, which intends to sell or offer for sale any units, shares,

contracts, notes, bonds, mortgages, oil or mineral leases or other security of such

association shall, prior to transacting any such business, file with the Department of State

a true and correct copy of the declaration of trust under which the association proposes to

conduct its business, which copy shall be sworn to, as being a true and correct copy, by

the chair of the board of trustees named in such declaration of trust. When such copy

shall have been filed with the Department of State it shall constitute public notice as to

the purposes and manner of the business to be engaged in by such association. The

Department of State, prior to the issuance of the certificate by it, shall collect from the

said association a filing fee of $350, which fee shall be paid by it into the general fund of

the state.”

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c. The Plaintiff Trust, has failed to file its declaration of trust, not paid the $3 50,00

fee and not obtained a certificate from the Department of State and has commenced to

transact its business in Florida. “Upon the filing of the copy of the declaration of trust and

the payment of the filing fee, in compliance with s. 609.02, the Department of State shall

issue to the trustees named in the said declaration of trust a certificate showing that such



been complied with.” Section 609.3 id.

d. Accordingly, the Trust lacks standing to have this motion enforced in the courts of

Florida and the persons operating the trust in violation of Chapter 609 have committed a

third degree felony under Florida law. Section 609.06.

e. Florida law requires the filing. Accordingly, Plaintiff lacks standing to seek

foreclosure on behalf of a trust doing business in Florida that has not complied with the

registration requirements of Florida law. O’Hanlon v. Herndon, 5 So.3d 723 (Fla.App. 2d

Dist. 2009).

IV. PLAINTIFF TRUSTEE LACKS STANDING TO SUE

26. The Plaintiff lacks standing to sue because it cannot be the holder or owner of the

note in question. Because the mortgage was securitized, the mortgage was rendered

unenforceable. Securitization of the mortgage created restrictions upon modification of the

mortgage which had not been approved by the mortgagor. Securitization also converted the

mortgage note from an alienable, transferable instrument which was and could be sold into an

instrument which cannot be sold, transferred or alienated, without amending the terms and

conditions of the mortgage. In either case, the action renders the mortgage unenforceable as a

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matter of law. Plaintiff lacks standing because plaintiff does not own or hold the note and cannot

have the power and authority to represent the actual owners of the note, as a matter of law.

27. The mortgage is a security agreement between the creditor and debtor to secure

repayment of the loan by encumbering collateral for the benefit of the creditor. It is indisputable

that the security agreement may not be modified or amended by one party without the prior

written consent of the other. The master pooling and servicing agreement which is the organic

document creating mortgage backed securities changes the terms and conditions of the mortgage.

The changes are made unilaterally by the holder of the mortgage as a successor to the original

mortgagee named in the mortgage. The changes are made without the consent of the mortgagor.

28. When the parties executed the mortgage, the mortgagor was neither obligated to

agree to an alternate dispute resolution in the event of a default nor restricted from entering an

alternate dispute resolution. When signing the mortgage, the mortgagor neither knew nor had

reason to know that a successor in interest to the mortgagee would subsequently self impose

restrictions upon modification of the mortgage and create liability for itself by modifying the

loan.

29. The securitization of the mortgage constitutes a conversion of the asset rendering

it null, void and unenforceable. The mortgage note when executed could be sold or otherwise

transferred, in whole or in part. The consent given by the mortgagor to enable the holder to

alienate the mortgage does not entail the right to convert the mortgage into a security. The failure

to adhere to this distinction has resulted in the widespread conversion from enforceable

mortgages into unenforceable securitized mortgages.

30. When the mortgage was securitized, the mortgage note was converted and could

no longer be sold or transferred, in whole or in part. The trustee or servicing agent of a pass

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through trust has no legal or equitable interest in the securitized mortgages. The holder profits

from the fees collected from foreclosure. The certificate holders, guarantors and mortgage

insurers bear the losses. Foreclosure avoids litigation from disgruntled certificate holders who

could claim a mortgage modification improperly resulted in a financial loss. By separating the

incidence of loss from the authority to foreclose, the original note has been altered resulting in a

change to the mortgage without the consent of the mortgagor. The conversion of the mortgage to

mortgage backed securities renders the mortgage unenforceable.

31. There is no case and controversy between the Plaintiff and Defendant because

Plaintiff has no interest, equitable or legal, in the mortgage. A mortgage may only be enforced by

a person legally entitled to foreclose on the debt or such person’s representative such as a

nominee or trustee. By transferring ownership and holding of the mortgage promissory note to

certificate holders of a publicly traded security, the transfer of a promissory note to a fictitious,

non-existent owner and holder renders the mortgage unenforceable. A mortgage cannot be

foreclosed on behalf of the owner and holder of a note who does not exist.

32. Furthermore, by transferring ownership and holding of the mortgage promissory

note to certificate holders of a publicly traded security, the transfer negates the ability of the

trustee or servicing agent to sue as the owner or holder of the promissory note. A mortgage

cannot be foreclosed on behalf of the owner and holder of a note who does not actually own or

hold the note. Plaintiff is not the real party in interest and is not shown to be authorized to bring

this action. Standing requires that the party prosecuting the action have 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 rests

exclusively in those persons granted by substantive law the power to enforce the claim. Neither

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the trustee nor the servicing agent for the trust have a legal or equitable interest in the securitized

mortgages.

33. Often, the servicing agent for the loan will appear to enforce the note. Assume

that the servicing agent states that it is the authorized agent of the note holder, which is “Trust

Number 99.” The servicing agent does not have standing, for only a person who is the holder of

the note has standing to enforce the note. See e.g., In re Hwang, 2008 WL 4899273 at 8. Bank of

New York v. Williams, 979 So.2d 347 (Fla.App. 1st Dist. 2008).

34. In securitizing the mortgage, the third party trust has trampled the rights of the

debtor, extinguished the status of note holder and severed the traditional connection between the

party who is owed the money and the part who is obligated to pay. Securitization has precipitated

a breach of contract resulting from a unilateral, unauthorized modification of the original

contract between debtor and creditor. It has imposed restrictions upon modification of the loan in

the event of a default without the consent of the mortgagor. It has made the note which was once

transferable inalienable. This action made it virtually impossible for the Federal Government to

buy defaulted mortgages as toxic assets sold at a discount from mortgage trusts.

V. AFFIDAVITS IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ARE INSUFFICIENT

35. Plaintiffs affidavit as to amounts due and owing is insufficient and defective in

form to support a motion for summary judgment pursuant to Florida Rules of Civil Procedure

1.510 (e) which requires that sworn or certified copies of all papers referred to in an affidavit

shall be attached thereto or served therewith. Accordingly, the affidavit is defective for the

following reasons:

a. The affidavit refers to the Plaintiff, being owed sums of money due under the

Note and Mortgage subject to the foreclosure complaint. However, the Affidavit does not

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have attached any recorded documents showing that the Plaintiff is the successor in

interest to AMERICAN HOME MORTGAGE ACCEPTANCE, INC.

b. The Affidavit does not have attached a document showing that the Plaintiff has a

right to enforce a debt as against the Defendant, GONZALEZ, not that she is indebted to

the Plaintiff. The Mortgage and Note attached to the Complaint is between the

GONZALEZ and AMERICAN HOME MORTGAGE ACCEPTANCE, INC.

c. AMERICAN HOME MORTGAGES SERVICING, INC., acting as the current

loan servicer, cannot be relied upon to certify via the Affidavit the prior amounts,

transactions, debits, charges and fees allegedly owed without attaching a complete record

or audit validating the account. It is the Note holder’s responsibility to validate the claims

being made on the Note and amount owed. Summaries of amounts owed cannot be relied

upon and only original ledgers and master records and the keeper of those records can

testify as to the amounts owed and due.

36. Defendants by closer examination disagree with amounts Plaintiff stated in the

Affidavit of Indebtedness submitted to this court October 13th, 2010. In the Affidavit Plaintiff

asks for:

• Interest with per diem charge: This charge is without merit too vague, missing

itemization, missing invoices and statements;

• Escrow Advance: This charge is without merit too vague, missing itemization, missing

invoices and statements;

• Real Estate Taxes: This charge is without merit too vague, missing itemization, missing


17

• Property Inspections: Defendant states the property was continuously in care and

position of Defendant and Plaintiff never performed any inspection activities. This charge

is without merit too vague, missing itemization, missing invoices and statements;

• Pre-Acceleration Late Charges: This charge is without merit too vague, missing

itemization, missing invoices and statements;

• Appraisals/BPO: This charge is without merit too vague, missing itemization,

missing invoices and statements; and

• Title Report: This charge is without merit too vague, missing itemization, missing


All of the charges presented are without merit, too vague, missing itemization, missing invoices

and paid statements from third parties service providers, third parties municipal assessments and

could result in an unjust enrichment on the part of the Plaintiff.

37. Defendants request Plaintiff to supply all supporting documentation to verify

authenticity of the actual charges accumulated and paid by the lender. These should include

payment schedules, journal entries, payment ledgers, invoices, processed checks, statements, and

any other documentation helping to establish verification of actual paid and applied charges.

VI. MOTION FOR SUMMARY JUDGMENT MUST BE DENIED

38. Since the record does not support that there are no genuine issues of material fact,

Plaintiffs Motion must be denied. See Snyder v. Cheezen Dev. Corp.,373 So.2d 719 (Fla.2d

DCA 1979).

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WHEREFORE, the Defendants respectfully requests that this Court deny the Plaintiffs

Motion for Summary Judgment and find in favor of the Defendants to dismiss the Complaint for

failure to state a cause of action.

I understand that I am affirming under oath to the truthfulness of the claims made

in this response.

ELENA GONZALEZ

STATE OF FLORIDA COUNTY OF LEE

Sworn to or affirmed and signed before me on the ___ day of December, 2010, by ELENA GONZALEZ.

NOTARY PUBLICSTATE OF FLORIDA

Print: ____________________________My Commission Expires:______________ My Commission No.: _______________

____Personally known____Provided a Florida Drivers License as proof of identification.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been delivered

via Fax to Craig Tarrant Smith, Esquire, Fax No.: (813) 880-8800 and regular U.S. Mail to,

Shapiro & Fishman, LLP , 4630 Woodland Boulevard, Suite 100 Tampa, FL 33614 (File No.:

08- 122228) on this ___ day of December 2010.

______________________________P. MICHAEL VILLALOBOS, ESQ.Florida Bar No. 0937126Attorney for Defendant3621 Cleveland AvenueFort Myers, Florida 33901Tel: (239) 333-2033 Fax: (239) 628-1105

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