foreclosure cross claim
DESCRIPTION
How to file cross claims against plaintiffs, (banks), that sue to foreclose!!!TRANSCRIPT
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA
U.S. Bank National Association, as,Trustee for The Structured AssetSecurities Corporation MortgagePass-Through Certificate 2006-EQ1,
Plaintiff,
Vs. Case No: 50 2007 CA00 5340 XXXX MB Division: Foreclosure AW
Mickey Metzgar, Sharon MetzgarA/K/A Sharon J. Metzgar: et.al.,
Defendant._____________________________________/
Defendant’s Cross Claims of Fraud against Plaintiff
The defendant Sharon Metzgar, pursuant to Rules of Civil Procedure 1.170
(g), herein files cross claims of fraud against the plaintiffs. Since filing the
original complaint, the plaintiffs have committed at least three counts of fraud with
additional document filings; (1) a backdated mortgage assignment prepared in-
house by the plaintiff attorney David J Stern over 2 years after filing the
complaint, (2) a recent contradictory answer to interrogatories concerning
finding the lost note, and most recently (3) a return of service affidavit.
I: Statement of Facts
Case History
1. On April 09, 2007 the plaintiff filed a foreclosure complaint seeking to
enforce a lost note. Paragraph (3) alleges; (See “Plaintiff’s Complaint Exhibit ‘A’).
On April 24, 2006 MICKEY METZGAR AND SHARON
METZGAR A/K/A SHARON J METZGAR, HIS WIFE, executed and
delivered a promissory Note and a Mortgage securing payment of the
Note to the Payee named thereon.
2. Attached to the complaint is a copy of the original mortgage the plaintiff
seeks to foreclose. The lender, (Payee), on the mortgage is Equifirst Corporation
not the plaintiff. MERS is listed as the mortgagee acting under Delaware state law.
3. The foreclosure complaint attempts to clean up the ownership issue by stating
in paragraph (4) that;
“said mortgage was subsequently assigned” - (past tense) - to the
plaintiff “ . . . by virtue of an assignment to be recorded”. – (Tangible).
(See “Plaintiff’s Complaint paragraph (4) Exhibit ‘A’).
4. This alleged undated tangible assignment, that is claimed to have
been executed, was not attached. There is nothing in the original complaint
and attachments to show or prove that the plaintiff has standing to foreclose
- nothing, nada, zilch, zero.
5. The complaint does not allege transfer of the note.
2
6. On 11/20/2008 The Plaintiff filed a Motion for Summary Judgment
with a supporting affidavit. The bank’s Vice President’s supporting affidavit
execution date is October 19, 2007. This affidavit admits and reveals that the
Plaintiff has never recovered the original note. (See Exhibit “B” paragraph 4).
7. The plaintiffs move for summary judgment 1 year and 7 months after
filing the complaint in spite of the fact there is still nothing in the record to
indicate that the plaintiff has standing to foreclose. No note, no
assignment, UNBELIEVABLLY NOTHING AT ALL. The mortgage attached
to the complaint names EquiFirst as the lender - not the plaintiff.
8. The summary judgment motion is rightly denied
9. On 09/28/2009 the plaintiff attempts a second summary judgment by
executing an Assignment of Mortgage dated August 09, 2009 - almost two and
one half years after filing the foreclosure complaint. The plaintiff attempts to
“backdate” the assignment two and one half years prior. (See Exhibit “C”).
10. This back-dated assignment was prepared in-house by the
plaintiff’s attorney, David J Stern in plantation FL., over 2 years AFTER filing
the foreclosure complaint. It was then notarized in South Carolina by Lisa Ryhne,
verifying Yolanda Williams’ signature. (See “Exhibit “C” - heading).
11. David Stern is now under investigation by the Attorney General.
Ex-paralegals, plural, for Mr. Stern have given sworn depositions to the
AG testifying of among other things fraudulently backdating assignments.
3
12. The so-called MERS backdated mortgage assignment is to U.S. Bank
National Association, as, Trustee for The Structured Asset Securities Corporation
Mortgage Pass-Through Certificate. (See Attached Exhibit “C”).
13. The effective date of this alleged David J. Stern prepared MERS
mortgage assignment executed on August 09, 2009 is backdated to March 29,
2007. The note is still alleged to be lost at the execution, filing, and effective date
of this so-called assignment. The effective date predates the notary’s commission.
14. This second attempt at summary judgment is also rightly denied.
15. On July 6, 2010 the plaintiffs attempts a third summary judgment hearing.
At this hearing the Plaintiff’s attorney without warning or notice suddenly
produces, “out of his bag”, what he claims to be the original promissory note
after having been lost for over three (3) years. This lost note suddenly produced
also names EquiFirst corp. as the payee, not the plaintiff. (See Note Exhibit “D”).
16. This third attempt at summary judgment is also rightly denied.
17. On October 22, 2010 the case is finally set for trial by Judge Garrison. The
trial date is set for November 15, 2010 at 10:30 a.m.
18. On October 28, 2010 Michael K. Winston, Bar # 051403, files a notice of
appearance as co-counsel. He alleges to have been retained by the plaintiff.
19. On November 03, 2010, after successfully knocking the case from the trial
docket; the bank Default Litigation Specialist filled Answer to Interrogatories
concerning finding the long lost note. The answer alleges that the original note was
given to the plaintiff’s attorney specifically on April 20, 2007. (See “Exhibit “E”).
4
20. On November 24, 2010, this new lawyer filed a return of service affidavit
as to Mickey Metzgar. (See Attached Exhibit “F”).
II: Defendant’s Proofs of Fraud
Count 1
Backdated Mortgage Assignment prepared in-house
by the plaintiff attorney David J Stern
21. On 09/28/2009, while the note was still lost, the plaintiff attempts a second
summary judgment by executing an Assignment of Mortgage on August 09, 2009,
almost 2 and 1/2 years after filing the foreclosure complaint. The plaintiff attempts
to “backdate” the assignment two and one half years prior. (See Exhibit “C”).
22. This back-dated assignment was prepared in-house by the
plaintiff’s attorney, David J Stern in plantation FL., over 2 years AFTER filing
the foreclosure complaint. It was then notarized in South Carolina by known robo-
signers Yolanda Williams and Lisa Ryhne. (See “Exhibit “C” heading ).
23. The assignment on its face raises a serious issue of fact, whether the
Plaintiff had standing to file a foreclosure complaint 2 years and 4 months before
executing an assignment. See WM SPECIALTY MORTGAGE v . SALOMON ,
874 So.2d 680 (Fla.App. 4 Dist. 2004).
An evidentiary hearing would have been the appropriate
forum to resolve the conflict which was apparent on the face of
the assignment, i.e., whether WM Specialty acquired interest in
the mortgage prior to the filing of the complaint.
5
24. In the WM SPECIALTY case, the bank appealed a dismissal of a
foreclosure complaint based on a backdated mortgage assignment executed two
months after filing the complaint. This case has a backdated assignment executed a
whopping 2 full years and 4 months after filing the complaint
25. According to the WM SPECIALTY case the defendant is entitled to an
evidentiary hearing to authenticate the backdated mortgage assignment prepared in-
house by the plaintiff’s attorney years after filing the complaint.
Count 2
Answer to Interrogatories – Lost Note\
26. On 11/20/2008 The Plaintiff filed a Motion for Summary Judgment
with a supporting affidavit. The plaintiff’s Affidavit in Support of Summary
Judgment has an execution date of October 19, 2007. The plaintiffs own
affidavit filed by a bank Vice President admits and reveals that the
Plaintiff has never recovered the original note. (Exhibit “B” paragraph. 4).
27. On July 6, 2010 the plaintiffs attempts a third summary judgment hearing.
At this hearing the Plaintiff’s attorney without warning or notice suddenly
produces, “out of his bag”, what he claims to be the original promissory note
after having been lost for over three (3) years. This unendorsed long, long lost
promissory note suddenly produced also names EquiFirst corporation as the
payee, not the plaintiff. (See Note Exhibit “D”).
6
28. On November 03, 2010, alleged newly retained Mr. Winston, Bar #
051403 files Answer to Interrogatories concerning finding the long lost note. The
answer alleges that the original note was given to the plaintiff’s attorney specifically
on April 20, 2007 This would have put the original note in the attorney’s hands 6
months prior to filing the affidavit claiming it to be lost. (See “Exhibit “E”).
29. This Answer to Interrogatories concerning finding the long lost has as a
signature of a one Joseph J. Cariola. It is notarized by a Fredrick County, Maryland
notary. Joseph J. Cariola’s title is alleged to be Default Litigation Specialist for
the plaintiff, US Bank National Association, Cincinnati, Ohio. Joseph J
Cariola’s address is Fredrick, Maryland. He is also a notary. His commission
expires on 04/13/2011.
30. The defendant wishes to depose this affiant. Among other things, find
out when US Bank National hired him. Who held his position prior? Where is
his office located? And most importantly, why does this Bank’s Default
Litigation Specialist, Joseph J. Cariola’s statement concerning
the note contradict an earlier affidavit filed by the same bank’s
Vice President Loan Documentation, Kevin Marks, claiming the
original note was never recovered?
7
29 The defendant claims that these answers to the interrogatories filed by
the banks “Default Loan Specialist” recently is fraudulent and that the affidavit
in support of summary judgment executed earlier by the banks “Vice President
Loan Documentation” is correct. These answers are just another fraudulent
attempt to “clean up” this deceptive foreclosure case by a new lawyer.
Count 3
Return of Service Affidavit
30. On October 22, 2010 this case is finally set for trial by Judge Garrison. The
trial date is set for November 15, 2010 at 10:30 a.m.
31. On October 28, 2010 Michael K. Winston, bar# 051403, files a notice of
appearance as co-counsel. He succeeds in knocking the case from the trial docket. He
alleges to have been retained by the plaintiff and not David J. Stern.
32. On December 2, 2010, Michael K. Winston, Bar# 051403, co-counsel with
David J. Stern, filed a return of service affidavit as to Mickey Metzgar. (See
Attached Exhibit “F”).
33. The signature on this return of service affidavit is purported to be that of
an impartial service processor - Susan R. Upthegrove
34. However, the signature is easily recognizable as that of plaintiff attorney,
David Stern’s lead affidavit signing paralegal – (up to 1000 a day), Cheryl Samons.
Here is an example of Cheryl’s signature. (See signature comparison ‘G’ ).
8
35. A certified copy of the service processor, Susan R. Upthegrove’s, court
recorded bond for process serving contains her signature. This certified copy of
Susan R. Upthegroove’s signature doesn’t even come close to the signature in their
exhibit. (See Bond – Certified Copy Exhibit ‘H’).
36. More examples of two of Susan R. Upthegrove’s signatures made just
two months before the time of the alleged return of service signing are attached.
These two signatures of Susan R. Upthegroove is also very much different than
the one alleged on the return of service affidavit. (See Exhibit “I”).
37. The defendant challenges whether the plaintiff retained Mr. Winston’s
services or did David J. Stern hire him simply to knock the case from the trial
docket in order to file more fraudulent documents, i.e. the
interrogatories concerning the lost note and the return of service
affidavit. The defendant asks for proof that Mr. Winston has standing to appear on
behalf of the plaintiff.
38 As it stands, the case file record contains genuine issues of fact. The
backdated assignment needs to be authenticated through an evidentiary
hearing. The answers to the interrogatories contradict an earlier filed
affidavit in support of summary judgment - bank officials have filed
contradicting affidavits. And the return of service affidavit appears to be a
forgery.
9
III: CONCLUSION
38. This David J. Stern case is a classic example of how the foreclosure
mills have resorted to fraudulent lost note claims, filing false affidavits, creating in
house back dated mortgage assignments to give the illusion of legal transfers, and
wholesale fraud and forgery in order to “PUSH” foreclosure summary judgments
through the court system.
a) The plaintiff is a trustee for investors that own The
Structured Asset Securities Corporation Mortgage Pass-Through
Certificate. This certificate is an investment instrument created by
pooling thousands of notes and mortgages together.
b) In order to create this certificate, the note is sold from the
originator to a sponsor; it is then sold to a depositor who creates the
note-pooled certificate. The certificate is then sold to a trustee that
governs the pool. The note passes through 3 or 4 owners before the
trustee of the pool, in this case, US Bank National gains possession.
c) In a rush to create these note-securitized MBA’s, “Mortgage
Backed Assets”, laws requiring signatures, notaries, recording and
time in order to prove legal transfers are ignored. In order to
GIVE THE ILLUSION OF LEGALLITY, foreclosure mills such as
David J. Stern have to resort to fraudulent lost note claims, fraudulent
affidavits, in-house backdated assignments, and forgery.
10
IV: RELIEF
39. The defendant seeks the following relief and any other such relief that
the Court would deem necessary, just, and/or proper.
a) A trial by jury on all (3) fraud claims contained in this
cross complaint if applicable. Otherwise a trial by Judge.
b) A finding of fraud with the answers to the interrogatories
concerning finding the lost note based on the previous
filed Affidavit in Support of Summary Judgment.
c) An evidentiary hearing regarding the authenticity of the
backdated mortgage assignment created in-house.
d) Proof Michael K. Winston, bar # 051403 has standing to
appear as co-counsel.
e) A finding of forgery of the return of service affidavit.
f) Dismissal of the foreclosure complaint with prejudice.
g) A finding that. U.S. Bank National Association has not
shown they own or hold the note and mortgage.
h) The plaintiff, U.S. Bank National Association enjoined
from reselling or reassigning the note or mortgage.
i) Any other such relief including a satisfaction of mortgage
lien, monetary penalties and/or fines that the court deems
to be necessary, just, and/or proper.
11
V: LIST OF EXHIBITS
40. The list of exhibits is derived from the documents filed by the plaintiff and
their attorneys in this case.
a) Exhibit “A” - The plaintiff’s original complaint with the mortgage sought to
foreclose attached filed April 09, 2007.
b) Exhibit “B” - The plaintiff’s Motion & Affidavit in Support of Summary
Judgment with notary execution date of October 19, 2007 but filed Nov. 20, 2008.
c) Exhibit “C” – The plaintiff’s backdated Assignment of Mortgage prepared
by plaintiff’s attorney David J. Stern in-house and executed on August 09, 2009.
d) Exhibit “D” - Promissory Note produced by plaintiff’s attorney and copied
by Judge into file on July 06, 2010.
e) Exhibit “E” – Plaintiff’s Answer to Interrogatories concerning the lost note
filed by Michael. Winston on November 03, 2010.
f) Exhibit “F” – Plaintiff’s Return of Service filed by Michael Winston on
November 24, 2010.
e) Exhibit “G” – Copy of David J. Stern lead affidavit signing paralegal, (up to
1000 a day), Chreyl Samons’ signature.
h) Exhibit “H” A certified copy of the service processor, Susan R. Upthegrove’s,
court recorded bond for process serving containing her signature dated January 09, 1996.
i) Exhibit “I” A copy of the service processor, Susan R. Upthegrove’s, court
recorded mortgage deed, containing two of her signature dated February 09, 2007, just
two months prior to allegedly signing the return of service affidavit.
12
Certificate of Service
I Declare that the contents in these cross claims are true and correct to the
best of my knowledge. I further declare that a true and correct copy of these Cross
Claims have been sent via US mail to the following person(s).
1. Kim F. Stevens, attorney of record, Bar# 0543136, c/o Law offices of
David J. Stern, 900 South Pine Island Road Suite 400, Plantation, FL 33324-3920
(954) 233-8000.
2. Michael K. Winston, Esquire, Bar# 051403, 525 Okeechobee Bld,
#1200, West Palm Beach, FL 33401
Done this ____ day of December, 2010.
_______________________________
Sharon Metzgar
301 Henthorne Drive
Lake Worth, FL 33461
Ph: (561) 281-9543
13