Emergency Motion To Stay Foreclosure Sale Additional Motion Practice Material

AMSTAR LITIGATION SEMINAR
March 2, 2009
PRESENTERS
SUPPLEMENTAL MATERIAL
Steven P. Combs, Esquire
3217 Atlantic Boulevard
Jacksonville, Florida 32207
(904) 359-5505
www.4closurelaw.com
(c) 2009, Steven P. Combs
All Rights Reserved
Page 1 Prepared for Use at Amstar Litigation
Seminar 3/2/10 in Jacksonville, FL
TABLE OF CONTENTS
Motion Page
Motion to Dismiss No Note 3
Draft of Memorandum in Support of Motion to Dismiss No Note 8
Motion to Dismiss Plaintiff Not on Note Lost Note Count 14
Motion to Dismiss True Owner of Note Not Identified 18
Motion to Dismiss No Assignment Suspected Fraud on the Court 20
Motion to Dismiss No Legal Description 24
Notice of Special Appearance to Challenge Jurisdiction Lack of Service 25
Motion to Vacate Order Denying Motion to Dismiss Entered Without Notice or
Hearing
28
Motion to Vacate Clerk's Default 40
Motion to Vacate Clerks Default 46
Answer, Affirmative Defenses and Counterclaims 50
Answer, Affirmative Defenses and Counterclaims 70
Memorandum in Opposition to Plaintiff's Motion for Summary Judgment for
Foreclosure; and Defendants' Motion to Strike Plaintiff's Affidavit of
Indebtedness
94
Motion to Compel 122
Update Material March 2, 2010
First Motion for Sanctions, BOA v. Bernard 124
Second Motion for Sanctions, BOA v. Bernard 136
Third Motion for Sanctions, BOA v. Bernard 139
Motion to Dismiss Fails to Allege Holder Status 144
Emergency Motion to Vacate Default Summary Judgment and to Stop Sale (PSA
requirements and REMIC discussed)
146
Notice of Special Appearance to Challenge Jurisdiction Failure to Adhere to
Return of Service Requirements for Service Outside of Florida
164
Good Faith Discovery Resolution Letter for Fourth Judicial Circuit (Duval, Clay
and Nassau) per Admin. Order 88-2
166
All Rights Reserved
IN THE CIRCUIT COURT, FOURTH
JUDICIAL CIRCUIT IN AND FOR
DUVAL COUNTY, FLORIDA
CASE NO.: 2009-CA-12010-XXXX-MA
DIVISION: CV-G
U.S. Bank National Association,
Plaintiff,
vs.
John Gaschler; Erica H. Kobloth,
et al.,
Defendants.
/
MOTION TO DISMISS
OR, IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT
COMES NOW, the Defendant, Erica H. Kobloth (Defendant), by and through her
undersigned counsel, pursuant to Rule 1.140, Florida Rules of Civil Procedure, and files this Motion
to Dismiss the Plaintiffs Complaint for Foreclosure, or in the alternative, this Motion for More
Definite Statement, and, as grounds therefor, the Defendant states:
Failure to Plead Jurisdictional Allegations
1. The Complaint should be dismissed as it fails to make required jurisdictional
allegations. Rule 1.110(b), Florida Rules of Civil Procedure a short and plain statement of the
grounds upon which the courts jurisdiction depends.... The Complaint fails to allege whether
Plaintiff is a resident or nonresident of the State of Florida; whether Plaintiff is and has been
registered to do business in the State of Florida or whether Plaintiff has posted a bond as required
by Section 57.011, Florida Statutes, in order to prosecute the instant case.
2. Pleadings must be pled with sufficient particularity for a defense to be prepared. By
failing to assert basic allegations of residency, Defendant is prejudiced in their ability to determine
whether to raise various defenses, including a defense based upon the Plaintiffs failure to post a cost
bond pursuant to Section 57.011.
Failure to Plead Plaintiff is Owner of Note or
in the alternative, to Plead Representative Capacity
3. In paragraph 5 of the Second Amended Complaint, Plaintiff alleges that it is now
the designated holder of the note an mortgage with authority to pursue the present action.
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Motion to Dismiss
-- No Note
Page 2 of 5
However, in order to state a cause of action for foreclosure, the Plaintiff must plead that it owns
and holds the note and mortgage. See Form 1.944, Florida Rules of Civil Procedure. In the
alternative, the Plaintiff must at the least allege its representative capacity in bringing suit on behalf
of the party that owns and holds the note. See Dollar Sys. v. Detto, 688 So. 2d 470 (Fla. Dist. Ct.
App. 3d Dist. 1997).
4. In order to state a cause of action for foreclosure, the Plaintiff must allege the legal
description of the property or reference to the description contained in the mortgage.
FORECLOSURE IN FLORIDA, SECOND ED., Mathew Bender & Co. (2008), Kendell Coffey, page 101.
The Complaint fails to provide such legal description.
Failure to Attach Note Requires Dismissal
5. Rule 1.130, Florida Rules of Civil Procedure, clearly requires that if the cause of
action is based upon a written documents, the document itself must be attached to the Complaint,
or sufficient portions thereof must be quoted in the Complaint. More specifically, Rule 1.130,
provides:
(a) Instruments Attached. All bond, notes, bills or exchange,
contracts, accounts, or documents upon which action may be brought
or defense made, or a copy thereof or a copy of the portions thereof
material to the pleadings, shall be incorporated in or attached to
the pleading. . . .
Rule 1.130(a), Florida Rules of Civil Procedure (emphasis in bold in original; emphasis in bold and
underlining added).
6. Moreover, the case law is clear that a Complaint which fails to attach or quote from
the written instrument upon which the cause of action is founded fails to state a cause of action, and
is subject to dismissal. Safeco Ins. Co. of Am. v. Ware, 401 So. 2d 1129, 1130 (Fla. 4th DCA 1981).
More specifically, the Court in Safeco explained that the Trial Court therein erred when it struck the
Defendants Motion to Dismiss as a frivolous pleading, where the Motion to Dismiss was based on
the Plaintiffs failure to attach the contract upon which the Plaintiffs claim was based:
Florida Rule of Civil Procedure 1.130 provides that contracts "upon
which action may be brought or defense made" or copies thereof
"shall be incorporated in or attached to the pleading." One of the
ways to reach a failure to attach a necessary exhibit is by motion to
dismiss. Trawick, Florida Practice & Procedure 6-15 (1980). . . In
the case of a complaint based on a written instrument it does not
state a cause of action until the instrument or an adequate
portion thereof is attached to or incorporated in the pleading in
question. Trawick, supra. . . .
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Page 3 of 5
In view of the foregoing the appellant's motion to dismiss was not
frivolous; it was perfectly appropriate. Therefore, the order
striking the motion and entering default judgment was
erroneous. For this reason the judgment appealed from is
reversed and the cause is remanded for further proceedings.
Safeco, 401 So. 2d at 1130-1131 (emphasis added). See Walters v. Ocean Gate Phase I Condo, 925
So 2d 440, 443-44 (Fla. 5th DCA 2006) (a motion to dismiss for failure to state a cause of action
must be granted if the document on which the complaint is based is not attached).
7. Importantly, in the Safeco case the Complaint was founded on an insurance
contract/policy, and the Plaintiff in Safeco alleged in the Complaint that the Plaintiff did not have
a copy of the policy to attach to the Complaint. Thereafter, the Defendant provided a copy of the
insurance contract/policy to the Plaintiff, and moved to dismiss the Complaint, stating that the
Plaintiff should be required to amend the Complaint to attach the policy, now that it had a copy
thereof. The appellate court in Safeco agreed, and stated that the Plaintiff should have done just that.
8. Just as in the Safeco case, the Complaint in the instant case does, indeed, fail to state
a cause of action inasmuch as it fails to attach the Note.
9. Further, the Defendant is entitled to an opportunity to carefully review the Note once
it is properly attached to an amended Complaint, so as to ensure that the provisions thereof do not
contradict the allegations of the Complaint, for if any such contradiction is present, then the
amended Complaint would be subject to an additional motion to dismiss. Hunt Ridge, 766 So. 2d
at 401 ("Where complaint allegations are contradicted by exhibits attached to the complaint, the
plain meaning of the exhibits control and may be the basis for a motion to dismiss."); Ginsberg, 645
So.2d at 494 (Fla. 3rd DCA 1994) (where exhibits contradict allegations of complaint, the plain
meaning of the exhibits control); McKey v. D.R. Goldenson & Co., Inc., 763 So. 2d 409 (Fla. 2d
DCA 2000) (stating that if an attached document to a complaint negates the pleader's cause of action,
then dismissing the complaint is appropriate).
The Plaintiff Fails to Establish Standing by Failing to Attach Note
10. Count I of Plaintiffs Complaint should be dismissed because the Plaintiff
lacks standing to sue the Defendant for foreclosure as the Plaintiff has failed to properly plead
standing and to adequately allege it is a real party in interest. Specifically, having failed to attach
a copy of the note and assignments, the Plaintiff has failed to demonstrate its entitlement to
prosecute the instant claim for foreclosure, and, accordingly, is not the real party in interest and
lacks standing to bring this action. See also Rule 1.210(a), Fla.R.Civ.Proc.
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Page 4 of 5
The Plaintiff Fails to State Other Elements Necessary to
State a Cause of Action for Foreclosure by Failing to Attach the Note
11. In paragraph 7, Plaintiff states that no payments have been made under the terms of
the note and mortgage since February 1, 2009 . However, having failed to attach a copy of the note,
there is no corresponding allegation that the Defendant was obligated by the terms of the note to
make monthly payments. Accordingly, this allegation is insufficient to demonstrate a default on
part of the Defendant.
12. In paragraph 8, Plaintiff alleges that [a]ll conditions precedent to the acceleration
of this Mortgage Note and to foreclosure of the Mortgage have been fulfilled or have occurred.
13. Accordingly, the Plaintiff has not properly alleged a default of the note and a right
to the full amount owed under the note; and, accordingly, it does not possess the right to foreclose
on the mortgage.
14. The claim for late charges, costs, and attorneys fees should be dismissed because the
Plaintiff has failed to allege a right to recover the same.
15. In paragraph 10, Plaintiff states that Defendant owes it reasonable attorneys fees,
but fails to state the derivation of such right. By virtue of failing to attach a copy of the note, the
Plaintiff fails to establish that such right derives therefrom. Accordingly, the Plaintiffs claim for
the same should be dismissed.
Failure to Properly State Cause of Action for Reestablishment of Note
16. The Plaintiff fails to state a cause of action to enforce a lost note pursuant to Section
673.3091, Florida Statutes, or in the alternative, the Plaintiff should provide a more definite
statement of its cause of action.
17. As stated above, allegations must be plead with sufficient particularity for a defense
to be prepared. By failing to attach a copy of the lost note or set forth terms thereof with adequate
detail, the Defendant is prejudiced in their ability to ascertain their defenses to the Plaintiffs claim
to enforce the note.
18. It is incumbent upon the Plaintiff to make some factual allegations as to how the loss
or destruction of the note occurred: was the warehouse in which it was placed destroyed by rain,
wind or fire; was the note never delivered to the Plaintiff (or the underlying trust which the Plaintiff
ostensibly is representing) because it did not believe that a threat to its REMIC status was real if
the note was not delivered to it within the time prescribed in the governing Pooling and Servicing
Agreement through a series of bankruptcy remote vehicles; or, was the note shredded for some
untoward reason? Suffice it to say, that if Defendant was asserting affirmative defenses or counter-
claims as bare as we lost the note, Plaintiff would be demanding some ultimate facts to support
their claim. In any event, the Plaintiff fails to provide sufficient ultimate facts in regard to its lost
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Page 5 of 5
note count.
19. Finally, the Plaintiff fails to plead that sufficient security can be provided to protect
the Defendant should another entity present the note for payment. A promise of indemnification
without more is meaningless, especially given the likely insolvent state of the underlying trust.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing on the 14th day of September, 2009, has
been delivered by United States Mail to Dionne M. Keller, Esquire, Law Offices of David Stern,
P.A., 900 South Pine Island Road, Ste. 400, Plantation, FL 33324-3920.
SMITH GREENE & COMBS
_______________________________________
STEVEN P. COMBS
Florida Bar No.: 979449
Telephone (904) 359-5505
Facsimile (904) 359-5506
Counsel for the Defendant, Erica H. Kobloth
All Rights Reserved
CASE NO.: 16-2008-CA-013865-XXXX-MA
DIVISION: CV-E
CITIMORTGAGE, INC.,
Plaintiff,
vs.
WILLIE FAVORS, JR., and
FAIRY N. FAVORS, et al.
Defendant.
_________________________/
Memorandum of Law in Support of Defendants Amended Motion to Dismiss
COMES NOW the Defendants, Willie Favors, Jr., and Fairy Favors, (the Defendants), by
and through undersigned counsel, and files this Memorandum of Law in Support of Defendants
Amended Motion to Dismiss:
Four Corners Rule
1. It is axiomatic that when ruling on a motion to dismiss the Trial Court must not look
beyond the four corners of the Complaint.
2. Indeed, the Court in Department of Highway Safety and Motor Vehicles v. Paul
Bowers, 987 So.2d 148 (Fla. 2d DCA 2008), addressed a situation where the Trial Court in ruling
on a motion to dismiss considered matters outside of the four corners of the Complaint, stating:
. . . [T]he trial court erred in ruling on the motion to dismiss by
making factual findings beyond the four corners of the forfeiture
complaint." A motion to dismiss tests the legal sufficiency of the
complaint." Barbado v. Green & Murphy, P.A., 758 So. 2d 1173,
1174 (Fla. 4th DCA 2000). In considering the motion to dismiss,
the trial court may not look to information outside the "four
corners" of the complaint. Id. The value of Bowers' vehicle is not
contained in the forfeiture complaint; thus the trial court erred in
giving consideration to the excessive fine argument at the motion to
dismiss stage of the proceedings.
As stated in Crowder v. Hillsborough County, 715 So. 2d 954, 955
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Draft of Memorandum in Support of Motion
to Dismiss No Note
(Fla. 2d DCA 1998), "Although these facts may ultimately prove
to be true, they do not appear within the four corners of the
complaint. The court may not transform a motion to dismiss into
a motion for summary judgment."
Bowers, 987 So.2d 148 (emphasis added).
3. In the Response to the Motion to Dismiss, however, nearly every argument of the
Plaintiff as to why the Motion to Dismiss should be denied went outside the four corners of the
Complaint.
Mortgage Note Must be Attached to Complaint
4. The first argument asserted by the Plaintiff which goes outside the four corners is
the argument asserted by the Plaintiff that since the Mortgage Note is attached to the Plaintiffs
Response to Motion to Dismiss, which was missing from its Complaint, and no portion of which was
quoted in its Complaint, that the portion of the Motion to Dismiss directed to the Plaintiffs failure
to attach the Mortgage Note is now moot. This argument is wholly without merit.
5. First, the argument clearly goes outside the four corners of the Complaint. That
is, since the Mortgage Note is not attached to the Complaint, considering the Mortgage Note in
ruling on the Motion to Dismiss is in error. Bowers, 987 So.2d 148 (emphasis added).
6. Second, it is clear that Rule 1.130, Florida Rules of Civil Procedure, clearly requires
that if the cause of action is based upon a written documents, the document itself must be attached
to the Complaint, or sufficient portions thereof must be quoted in the Complaint. More specifically,
Rule 1.130, provides:
the pleading. . . .
underlining added).
7. Moreover, the case law is clear that a Complaint which fails to attache or quote from
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9. Just as in the Safeco case, the Defendants Motion to Dismiss in the instant case is
well taken, and the Complaint does, indeed, fail to state a cause of action inasmuch as it fails to
attach the Mortgage Note (which Mortgage Note the Plaintiff clearly had, inasmuch as the Plaintiff
has now attached it to its Response to Motion to Dismiss).
10. Further, the Plaintiffs argument that attaching the Mortgage Note to its Response
to Motion to Dismiss cures the defect, ignores the case law which provides that the attachment of
the missing document to some other document in the Court file is not sufficient to cure such a
defect, as well as the case law which provides that if the provisions of an attached document
contradict the allegations of the pleading that the Complaint fails to state a cause of action. Hughes
v. Home Savings of America, 675 So.2d 649 (Fla. 2d DCA 1996); Hunt Ridge at Tall Pines, Inc.
v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000); Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d
490, 494 (Fla. 3rd DCA 1994).
11. More specifically, in Hughes, 675 So.2d 649, the Plaintiff therein convinced the Trial
Court to deny a motion to dismiss the Amended Complaint therein, which failed to attach exhibits
referenced in the Amended Complaint, because the exhibits in question were attached to the original
Complaint in the action. The Second District disagreed the Trial Court, explaining:
The fact that such exhibits were attached to the original complaint
does not breathe life into the amended complaint which was void of
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exhibits.
Hughes, 675 So.2d at 650.
12. Likewise, in the instant case, the attachment of the Mortgage and Note to the
Response to Motion to Dismiss does not breathe life into the Complaint herein.
13. Further, the Defendant is entitled to an opportunity to carefully review the Mortgage
Note once it is properly attached to an amended Complaint, so as to ensure that the provisions
thereof do not contradict the allegations of the Complaint, for if any such contradiction is present,
then the amended Complaint would be subject to an additional motion to dismiss. Hunt Ridge, 766
So. 2d at 401 ("Where complaint allegations are contradicted by exhibits attached to the complaint,
the plain meaning of the exhibits control and may be the basis for a motion to dismiss."); Ginsberg,
645 So.2d at 494 (Fla. 3rd DCA 1994) (where exhibits contradict allegations of complaint, the plain
14. Accordingly, attaching the Mortgage Note to the Response to Motion to Dismiss does
not cure the defect in the Complaint inasmuch as the Response does not and cannot act to amend the
Complaint. The appropriate action in this instance is for the Plaintiff to amend its pleading to be
consistent with its Response, so as to have a pleading that is well founded and not subject to
dismissal (assuming that the Mortgage Note does not contradict any of the allegations contained in
the Complaint, once it is amended).
15. Finally, the Plaintiff attempts to convince the court that the note need not be attached
to the Complaint by citing to three (3) cases which do not stand for the proposition cited, and the
citation of which borders on the Plaintiff attempting to intentionally mislead this tribunal. These
cases are: National Loan Investors v. Joymar Assoc., 767 So.2d 549 (Fla. 3d DCA 2000); Amiker
v. Mid-Century Ins. Co., 398 So.2d 974 (Fla. 1 DCA 1981); and Helton v. Gunderson, 802 So.2d
st
1152 (Fla. 3d DCA 2001). Contrary to the Plaintiffs assertions, these cases do not stand for the
proposition that a note need not be attached to a foreclosure complaint.
16. Specifically, in the Joymer case the Court never discussed whether a copy of the
note needed to be attached to the complaint. Instead, what the Court therein actually stated is:
At the hearing on Joymar's motion to dismiss the third amended
complaint, Joymar asserted that NLI's complaint failed to allege that
any entity ever had possession of the original loan documents or that
NLI knew the time and manner of their loss. In response, NLI sought
leave to amend again which was denied. The lower court dismissed
the complaint with prejudice, thereby precluding NLI from taking
any further action in this case. NLI appeals this order.
In a mortgage foreclosure action, a lender is required to either present
the original promissory note or give a satisfactory explanation for the
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lender's failure to present it prior to it being enforced. See Downing
v. First National Bank of Lake City, 81 So. 2d 486 (Fla. 1955);
Figueredo v. Bank Espirito Santo, 537 So. 2d 1113 (Fla. 3d DCA
1989); Pastore-Borroto Development, Inc. v. Marevista Apartments,
M.B., Inc., 596 So. 2d 526 (Fla. 3d DCA 1992). A limited exception
applies for lost, destroyed, or stolen instruments, where it is shown
that "the person was in possession of the instrument and entitled to
enforce it when loss of possession occurred." 673.3091, Fla. Stat.
(1999).
We see no reason why this right of enforcement cannot be assigned
when recognizing such a right would prevent defendants in
foreclosure actions from receiving a windfall. See Beal Bank S.S.B.
v. Caddo Parish-Villas South, Ltd., 218 B.R. 851 (N.D. Tex. 1998)
(interpreting Louisiana's version of the UCC as codified in La. UCC
3-309(a)). See also, Southeast Investments Inc. v. Clade, 1999 U.S.
Dist. LEXIS 10844, 1999 WL 476865 (N.D. Tex. 1999) (interpreting
Tex. Bus. & Comm. Code 3-309), aff'd 212 F.3d 595 (5th Cir.
2000). Although NLI failed to allege that it was ever in possession
of the note or that it was entitled to enforce the note when it was lost,
it is well-settled that even where an opportunity to amend has been
previously granted, it is an abuse of discretion to dismiss a complaint
with prejudice where the complaint can be amended to state a cause
of action and the privilege to amend has not been abused. See
Kovach v. McLellan, 564 So. 2d 274, 276 (Fla. 5th DCA 1990); See
also Winselmann v. Reynolds, 690 So. 2d 1325 (Fla. 3d DCA 1997);
Delia & Wilson, Inc. v. Wilson, 448 So. 2d 621 (Fla. 4th DCA 1984).
Because a cause of action may be stated through proof of an
assignable right of enforcement, the trial court erred in dismissing the
complaint with prejudice.
As the foregoing makes clear, nowhere in the opinion does the Court address whether it is incumbent
vel non to attach a copy of the note to the complaint.
17. Likewise, Amiker v. Mid-Century Ins. Co., 398 So.2d 974 (Fla. 1st DCA 1981), dealt
with whether an action based on an insurance policy should be dismissed when the entire insurance
policy was not attached to the Complaint. Addressing, this issue, the Court explained:
We further note that Rule 1.130(a) does not require attachment of the
entire contract, only attachment or incorporation of the contract's
material provisions. Thus, even if the Amikers fail to obtain a copy
of the policy through discovery, they may be able to procure
sufficient information about the policy's contents to adequately allege
the material provisions in an amended complaint
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This is not equivalent to the proposition put forth by the Plaintiff that the mortgage note need not
be attached where, as in the instant case, Count I which sets forth the cause of action for foreclosure
contains not even the scantest of details regarding the notes material provision.
18. Finally, in Helton v. Gunderson, 802 So.2d 1152 (Fla. 3rd D.C.A. 2001), the Court
in its one paragraph opinion states:
The plaintiff, Kris Edward Helton, appeals the trial court's sua sponte
dismissal of Count I of his complaint for failure to attach a copy of
the contract upon which he is suing. The defendant claims, and we
agree, that the existence of the alleged contract is a matter to be
proved at trial, and that Helton should be permitted to attempt to
prove his case. See Amiker v. Mid- Century Ins. Co., 398 So. 2d 974,
975-76 (Fla. 1st DCA 1981).
First, this one paragraph opinion is short on facts. Moreover, it relies wholly on Amiker v.
Mid-Century Ins. Co., 398 So.2d 974 (Fla. 1st DCA 1981), which, as stated above, clearly requires
that the Plaintiff to adequately allege the material provisions of a contract in the Complaint.
19. Thus, it is not accurate for the Plaintiff to state that its Count for Foreclosure should
not be dismissed for failure to attach the note where there are no allegations whatsoever in the Count
stating what the provisions of the note are.
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CASE NO.: 16-2009-CA-13767-XXXX
DIVISION: CV-E
BAC HOME LOANS SERVICING, LP
FKA COUNTRYWIDE HOME LOANS
SERVICING LP,
Plaintiff,
vs.
CHRISTOPHER GRAHAM, et al.
Defendants.
____________________________/
MOTION TO DISMISS
COMES NOW, the Defendant, CHRISTOPHER GRAHAM(Defendant), pursuant to
Rule 1.140, Florida Rules of Civil Procedure, and files this Motion to Dismiss the Plaintiffs
Complaint for Mortgage Foreclosure; or in the alternative, this Motion for More Definite Statement,
and, as grounds therefor, the Defendants state:
registered to do business in the State of Florida; or whether Plaintiff has posted a bond as required
2. Pleadings must be plead with sufficient particularity for a defense to be prepared.
By failing to assert basic allegations of residency, Defendant is prejudiced in her ability to determine
All Rights Reserved
Motion to Dismiss
-- Plaintiff Not on Note
-- Lost Note Count
Page 2 of 4
Failure to Properly Plead Standing
3. Count I of Plaintiffs Complaint should be dismissed because the Plaintiff lacks
standing to sue the Defendant for foreclosure as the Plaintiff has failed to properly plead standing
and to adequately allege it is a real party in interest.
4. The Plaintiff lacks standing to sue the Defendant for foreclosure as the Plaintiff is not
the party to the note attached to the Complaint.
5. Rule 1.130(a) of the Florida Rules of Civil Procedure, provides that "[a]ll ... contracts
... or documents upon which an action may be brought ... or a copy thereof or a copy of the portions
thereof material to the pleadings, shall be incorporated in or attached to the pleading." (emphasis
added). While the Plaintiff has pled that it holds the note by virtue of an assignment or indorsement,
it fails to attach such an assignment or indorsement as required by Rule 1.310, Florida Rules of Civil
Procedure.
6. The prosecution of a foreclosure action may only be maintained by the owner and
holder of the note and mortgage. Plaintiff is not entitled to maintain the instant action for
foreclosure if it has not been properly assigned the note attached to the Complaint.
7. Because the note attached to the Complaint was made in favor of a party other
than the Plaintiff, the note, as an exhibit to the Complaint, is inconsistent with the pleadings
in the complaint that the Plaintiff is the owner and holder of the note. See Fla.R.Civ.P.
1.310(b); see e.g. Bott v. City of Marathon, 949 So.2d 295 (Fla. 3 2007)(when considering a
rd
motion to dismiss, a trial court is required to consider any exhibit attached to, or incorporated in the
pleading"). Exhibits attached to a Complaint must agree with the allegations of the
Complaint, and where to two do not agree, the exhibits control. Harry Pepper & Assoc., Inc. v.
Lasseter, 247 So.2d 736 (Fla. 3rd DCA 1971) (stating "[i]n considering a motion to dismiss the trial
court was required to consider the exhibit . . . attached to and incorporated in the amended
complaint" and quoting Florida Rule of Civil Procedure 1.130(b), providing that "[a]ny exhibit
attached to a pleading shall be considered a part thereof for all purposes"); Blue Supply Corp. v.
Novos Electro Mechanical, Inc., 990 So.2d 1157, 1159 (Fla. 3 DCA 2008)(allegation in complaint
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stated plaintiff was party to contract; but contract attached clearly reflected it was not; exhibit
controlled and the complaint was dismissed); Hunt Ridge at Tall Pines, Inc. V. Hall, 766 So.2d 399,
401 (Fla. 2d DCA 2000)(Where complaint allegations are contradicted by exhibits attached to the
complaint, the plain meaning of the exhibits control and may be the basis for a motion to dismiss.);
Ginsberg v. Lennar Fla. Holdings, Inc. 645 So.2d 490, 494 (Fla. 3rd DCA 1994) (where exhibits
contradict complaint allegations, plain meaning of exhibits control). Moreover, contradictory
allegation within a single count neutralize each other and render the count subject to dismissal.
Peacock v. GMAC, 432 So.2d 142 (Fla. 1 DCA 1983).
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8. Accordingly, the pleadings fail to adequately allege the Plaintiffs standing to bring
an action on the note and mortgage.
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Page 3 of 4
9. Additionally, the Complaint fails to state when and by whom the note was indorsed
or assigned to Plaintiff. This failure renders the pleading insufficient, as such facts are necessary
for the Defendant to determine whether additional defenses should be raised as to the timing of the
assignment is pertinent to the Plaintiffs right to bring this action.
Failure to Properly State Cause of Action for Reestablishment of Note
10. The Plaintiff fails to state a cause of action to enforce a lost note pursuant to Section
673.3091, Florida Statutes, or in the alternative, the Plaintiff should provide a more definite
statement of its cause of action.
11. As stated above, allegations must be plead with sufficient particularity for a defense
to be prepared. It is incumbent upon the Plaintiff to make some factual allegations as to how the loss
or destruction of the note occurred: was the warehouse in which it was placed destroyed by rain,
wind or fire; was the note never delivered to the Plaintiff because the Plaintiff did not believe that
a threat to its REMIC status was real if the note was not delivered to it within the time prescribed
in the governing Pooling and Servicing Agreement through a series of bankruptcy remote vehicles;
or, was the note shredded for some untoward reason? Suffice it to say, that if Defendants were
asserting affirmative defenses or counter-claims as bare as we lost the note and dont know how,
Plaintiff would be demanding some ultimate facts to support their claim. In any event, the Plaintiff
fails to provide sufficient ultimate facts in regard to its lost note count.
12. Finally, the Plaintiff fails to plead that sufficient security can be provided to protect
the Defendant should another entity present the note for payment.
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Page 4 of 4
I HEREBY CERTIFY that a copy of the foregoing on the 29 day of October, 2009, has been delivered by
th
United States Mail to Marisol Morales, Esquire, Greenspoon Marder, P.A., Trade Centre South, Ste. 7000, 100 West
Cypress Creek Road, Fort Lauderdale, FL 33309.
_______________________________________
STEVEN P. COMBS
Telephone (904) 359-5505
Facsimile (904) 359-5506
Counsel for the Defendant, CHRISTOPHER
GRAHAM
All Rights Reserved
CASE NO.: 16-2009-CA13655-XXXX
DIVISION: CV-F
SUNTRUST MORTGAGE, INC.,
Plaintiff,
vs.
DANIEL STIMPSON,
Defendants.
____________________________/
AMENDED MOTION TO DISMISS
COMES NOW, the Defendant, DANIEL STIMPSON (Defendant), pursuant to Rule
1.140, Florida Rules of Civil Procedure, and files this Motion to Dismiss the Plaintiffs Complaint
for Mortgage Foreclosure; or in the alternative, this Motion for More Definite Statement, and, as
grounds therefor, the Defendants state:
registered to do business in the State of Florida; or whether Plaintiff has posted a bond as required
2. Pleadings must be plead with sufficient particularity for a defense to be prepared.
By failing to assert basic allegations of residency, Defendant is prejudiced in her ability to determine
Failure to Properly Plead Standing
3. Plaintiffs Complaint should be dismissed because the Plaintiff lacks standing to sue
the Defendant for foreclosure as the Plaintiff has failed to properly plead standing and to adequately
allege it is a real party in interest.
All Rights Reserved
Motion to Dismiss
-- True Owner of Note Not Identified
Page 2 of 2
4. The Plaintiff lacks standing to sue the Defendant for foreclosure as the Plaintiff is not
the owner of the note nor has the Plaintiff alleged the identity of the owner of the note. However,
in order to state a cause of action for foreclosure, the Plaintiff must plead that it owns and holds
the note and mortgage. See Form 1.944, Florida Rules of Civil Procedure. Additionally, the
Plaintiff must allege its representative capacity. See Dollar Sys. v. Detto, 688 So. 2d 470 (Fla. 3
rd
DCA 1997).
5. Additionally, the Plaintiffs pleading that it is the designated holder of the note is
not a legally cognizable status giving it a right to bring the instant action.
6. Accordingly, the pleadings fail to adequately allege the Plaintiffs standing to bring
an action on the note and mortgage.
7. Additionally, the Complaint fails to state when and by whom the note was indorsed
or assigned to Plaintiff. This failure renders the pleading insufficient, as such facts are necessary
for the Defendant to determine whether additional defenses should be raised as to the timing of the
assignment is pertinent to the Plaintiffs right to bring this action.
I HEREBY CERTIFY that a copy of the foregoing paper has been delivered by United States
Mail to Yanina Miculitzk, Esquire, Law Offices of Marshall C. Watson, P.A., 1800 N.W. 49 St.,
th
Ste. 120, Fort Lauderdale, FL 33309, this 31 day of October, 2009.
st
_______________________________________
STEVEN P. COMBS
Telephone (904) 359-5505
Facsimile (904) 359-5506
Counsel for the Defendant, DANIEL STIMPSON
All Rights Reserved
CASE NO.: 16-2009-CA-010050
DIVISION: CV-A
WELLS FARGO BANK, N.A.,
Plaintiff,
vs.
VINATE A. CUMMINGS,
Defendants.
/
MOTION TO DISMISS AMENDED MORTGAGE FORECLOSURE COMPLAINT
COMES NOW, the Defendants, Vinate A. Cummings and Terrest Cummings, each
individually and as Trustees of the Cummings Family Revocable Living Trust (Defendants), by
and through his undersigned counsel, requests the Court dismiss this action with prejudice pursuant
to Rules 1.100(b), 1.130, 1. 140(b)(l)(6) and (h)(2) and 1.210(a) of the Florida Rules of Civil
Procedure and, as grounds therefor, the Defendants states:
Failure to State a Cause of Action and Lack of Standing
1. In paragraph 4 of the Second Amended Complaint, Plaintiff alleges that it is now
the holder of the Mortgage Note and Mortgage and/or is entitled to enforce the Mortgage Note and
Mortgage. However, in order to state a cause of action for foreclosure, the Plaintiff must plead that
it owns and holds the note and mortgage. See Form 1.944, Florida Rules of Civil Procedure.
2. In the instant case, the Plaintiff will be hard pressed to allege that it is the owner of
the mortgage, as it has yet to be assigned the mortgage. As this is the case, the Plaintiffs Second
Amended Complaint should be dismissed for lack of standing pursuant to Jeff-Ray Corp. v.
Jacobson, 566 S0.2d 885 (Fla. 4 DCA 1990) and WM Specialty Mortgage v. Salomon, 874 So.2d
th
680 (Fla. 4th DCA 2004).
3. While the Plaintiff may argue that attacking its complaint on the basis of an
assignment which does not exist goes outside the four-corners of the Second Amended Complaint,
such argument only underscores the fact that a cause of action for foreclosure relies upon an
assignment of mortgage when the mortgage attached to the complaint is made in favor of a party
other than the Plaintiff, as is the fact in the instant case. That is, the Plaintiff has failed to comply
with Rule 1.130, Florida Rules of Civil Procedure, by not attaching a valid assignment predating the
filing of this foreclosure action. Plaintiff will surely rely on Chemical Residential Mtg. v. Rector,
All Rights Reserved
Motion to Dismiss
-- No Assignment
-- Suspected Fraud on the Court
Page 2 of 4
742 So.2d 300 (Fla. 1 DCA 1998), for the proposition that it is not incumbent upon the Plaintiff to
st
attach or otherwise prove up any assignment of the mortgage. However, it is clear from the opinion
in Rector that the holding was a result of the complaint having been admitted by virtue of Rectors
default. See also Emerald Plaza West v. Salter, 466 So.2d 1129 (Fla.. 3d DCA 1985)(Agreeing with
appellant that the trial court erred in granting foreclosure of a mortgage without requiring either
production of the original promissory note and assignment of mortgage or reestablishment of those
documents, Telephone Utility Terminal Co. v. EMC Industries, Inc., 404 So.2d 183 (Fla. 5th DCA
1981); 90.953(1), Fla. Stat. (1983), we reverse the Final Judgment of Foreclosure.) . In the
instant case, the Defendants have not been defaulted and no such admission has occurred.
The Second Amended Complaint fails to provide such legal description.
Fraud on the Court: The Loan Was Securitized
5. Upon information and belief, the Plaintiff has securitized the subject mortgage note
and thereby sold the mortgage note to a third-party trust.
6. Upon information and belief, the Plaintiff is neither the owner nor holder of the
mortgage note, but, instead, is the mere servicer of the mortgage under the terms of the agreement
establishing the trust into which the subject mortgage note was sold.
7. This Court has the inherent power and authority by summary means to prevent an
abuse of its processes, and to peremptorily dispose of a cause of action that was frivolous or wholly
vexatious, and this power to dismiss an action "may be predicated on matters de hors the pleadings
if duly established before the court." Berry v. Pearson, 186 So. 430 (1939).
8. Atrial court has the inherent authority, within the exercise of sound judicial
discretion, to dismiss an action when a Plaintiff has perpetrated a fraud on the court. Arzuman v.
Saud, 843 So.2d 950 (Fla. 4th DCA 2003); Piunno v. R. F. Concrete Constr., Inc., 904 So. 2d 658
(Fla. 4th DCA 2005).
9. 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. Andrews v. Palmas De
Majorca Condominium, 898 So.2d 1066 (Fla. 5th DCA 2005).
10. The Plaintiffs 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. 3rd DCA 1999).
11. 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. State
All Rights Reserved
Page 3 of 4
Farm Mutual Automobile Ins. Co., 846 So. 2d 572,574 (Fla. 1st DCA 2003).
12. Rule 1.210(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 and pleading criteria.
13. 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 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 DCA1985).
14. No Florida case holds that a separate entity can maintain suit on a note payable to
another entity unless the requirements of Rule 1.210(a) of the Florida Rules of Civil Procedure and
applicable Florida law are met. Corcoran v. Brody, 347 So. 2d 689 (Ft. 4th DCA 1977).
15. "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. v. Carlandia
Corp., 626 So.2d 1350,1352 (Fla. 1993).
16. Defendants seek a dismissal of the Plaintiffs complaint on the basis of fraud on the
Court 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
Corporation v. Weiss, 675 So.2d 235, 239 (Fla. 4th DCA 1996).
17. Upon information and belief, in the instant case, the Plaintiff knew and was fully
aware that it was asserting a right to foreclose as if it was the owner and holder of subject mortgage
and promissory note when the Plaintiffknew that such right did not exist.
18. In Florida, the prosecution of a foreclosure action is by the owner of the mortgage
and the holder of the promissory note, and upon information and belief, Plaintiff is neither.

I HEREBY CERTIFY that a copy of the foregoing on the 25 day of August, 2009, has been
th
All Rights Reserved
Page 4 of 4
delivered by United States Mail Jacqueline F. Kuyk, Esquire, Florida Default Law Group, Post
Office Box 25018, Tampa, Florida 33622-5018.
_______________________________________
STEVEN P. COMBS
Telephone (904) 359-5505
Facsimile (904) 359-5506
Counsel for the Defendants, Vinate A. Cummings and
Terrest Cummings, each individually and as Trustees
of the Cummings Family Revocable Living Trust

All Rights Reserved
CASE NO.: 16-2009-CA-010050
DIVISION: CV-A
Plaintiff,
vs.
VINATE A. CUMMINGS,
Defendants.
/
MOTION TO DISMISS AMENDED MORTGAGE FORECLOSURE COMPLAINT
COMES NOW, the Defendants, Vinate A. Cummings and Terrest Cummings, each
individually and as Trustees of the Cummings Family Revocable Living Trust (Defendants), by
and through his undersigned counsel, requests the Court dismiss this action with prejudice pursuant
to Rules 1.100(b), 1.130, 1. 140(b)(l)(6) and (h)(2) and 1.210(a) of the Florida Rules of Civil
Procedure and, as grounds therefor, the Defendants states:
Failure to State a Cause of Action
***
The Second Amended Complaint fails to provide such legal description.
***
All Rights Reserved
Motion to Dismiss
-- No Legal Description
JUDICIAL CIRCUIT IN AND FOR DUVAL
COUNTY, FLORIDA
CASE NO.: 16-2009-CA-0013338
DIVISION: CV-G
WELLS FARGO BANK, AS TRUSTEE
FOR THE CERTIFICATE HOLDERS OF
SOUNDVIEW HOME LOAN TRUST 2007-
OPT2, ASSET-BACKED CERTIFICATES,
SERIES 2007-OPT2,
Plaintiff,
vs.
THOMAS COLEMAN, DOREANE
HINTON-COLEMAN, et al.
Defendants.
_____________________________________/
NOTICE OF SPECIAL APPEARANCE TO CHALLENGE JURISDICTION OVER THE
PERSON OF THE DEFENDANTS AND MOTION TOQUASH SERVICE OF PROCESS
Comes now, Defendants, Thomas Coleman and Doreane Hinton-Coleman (hereinafter the
Defendants) pursuant to Rules 1.140(b)(2), Florida Rules of Civil Procedure, and moves this Court
to quash service of process, and in support thereof states:
1. The Defendants make this special appearance solely to challenge jurisdiction over
their persons.
2. Section 48.031(1)(a), Florida Statutes, provides that:
Service of original process is made by delivering a copy of it to the
person to be served with a copy of the complaint, petition, or other
initial pleading or paper or by leaving the copies at his or her usual
place of abode with any person residing therein who is 15 years of
age or older and informing the person of their contents. ...
(Emphasis added).
3. On September 21, 2009, Plaintiff filed a Return of Service as to Defendant Thomas
Coleman stating thereon that service was effected by substitute service by serving on September 4,
2009, the summons issued in this action to RUDY HINTON as BROTHER IN LAW at the address
All Rights Reserved
Notice of Special Appearance to Challenge Jurisdiction
-- Lack of Service
Page 2 of 3
of: 1748 MYRTLE AVE. N, JACKSONVILLE, FL 32209, the within named person's usual place
of Abode, who resides therein, [and] who is fifteen (15) years of age or older . . . .
4. On September 21, 2009, Plaintiff filed a Return of Service as to Defendant Doreane
Hinton-Coleman stating thereon that service was effected by substitute service by serving on
September 4, 2009, the summons issued in this action to RUDY HINTON as BROTHER IN LAW
at the address of: 1748 MYRTLE AVE. N, JACKSONVILLE, FL 32209, the within named person's
usual place of Abode, who resides therein, [and] who is fifteen (15) years of age or older . . . .
5. However, the Defendants did not at the time that service was effected reside at 1748
Myrtle Ave. N., Jacksonville, Florida 32209. That is, 1748 Myrtle Ave. N., Jacksonville, Florida
32209, has not at any pertinent time been the usual place of abode of the Defendants.
(Undersigned counsel will later submit affidavits in support of this allegation.)
6. Accordingly, the substitute service of the Defendants is improper pursuant to Section
48.031(1)(a), Florida Statutes, and this Honorable Court, therefore, has no jurisdiction over the
persons of the Defendants.
WHEREFORE the Defendants hereby move this Court to quash service of process and
require Plaintiff to properly serve Defendants before this matter moves forward.
_______________________________________
STEVEN P. COMBS
Telephone (904) 359-5505
Facsimile (904) 359-5506
Counsel for the Defendant, Thomas Coleman and
Doreane Hinton-Coleman
All Rights Reserved
Page 3 of 3
I HEREBY CERTIFY that a copy of the foregoing on this 28 day of September, 2009, has
th
been delivered by United States Mail to Sarah Barbaccia, Esquire, Ben-Ezra & Katz, P.A.,
2801Sterling Road, Suite 300, Fort Lauderdale, Florida 33312.
______________________________________
Attorney
All Rights Reserved
4/22/2009 3:23 PM James B. Jett Page 1

CLAY COUNTY, FLORIDA
BANK OF AMERICA, NAT'L ASSOC. AS
SUCCESSOR BY MERGER TO LASALLE
BANK NAT'L ASSOC., AS TRUSTEE FOR
CERTIFICATE HOLDER BEAR STEARNS
ASSET BACKED SECURITIES I LLC, ASSET-
BACKED CERTIFICATES, SERIES 2007-HE7,
Plaintiff(s),
vs.
ROBERT BERNARD, et aI.,
Defendant(s).
CASE NO.:
DIVISION:
2009-310-CA
B
DEFENDANT ROBERT BERNARD'S: (1) MOTION TO VACATE ORDER DENYING
MOTION TO DISMISS; (2) MEMORANDUM OF LAW IN REPLY TO PLAINTIFF'S
RESPONSE TO MOTION TO DISMISS; (3) MOTION TO STRIKE RESPONSE TO
MOTION TO DISMISS; AND (4) MOTION FOR ATTORNEYS FEES AND COSTS
The Defendant, Robert Bernard (the "Defendant" or "Mr. Bernard"), by and through
undersigned counsel, and pursuant to Rules 1.130, 1.140, and 1.540, Florida Rules of Civil
Procedure, as well as any other applicable rules of procedure and Florida case law, and files this
Motion for the Court to vacate the entry of its prior "Order Denying Motion to Dismiss Filed by
Defendant(s) Robert Bernard," entered by the Court on or about April 8,2009, but not docketed by
the clerk until April 9, 2009 (the "Order"), his Memorandum of Law in reply to the "Plaintiffs
Response to Defendant, Robert Bernard's Motion to Dismiss," which was filed with the Court on
or about April 7, 2009 (the "Plaintiffs Response" or "Response to Motion to Dismiss"), Motion to
Strike Plaintiffs Response to Motion to Dismiss and for Attorneys Fees and Costs, and states:
Factual and Procedure Background
1. On or about March 5,2009, the Defendant served his "Motion to Dismiss, or, in the
Alternative, Motion for More Definite Statement" (the "Motion to Dismiss").
2. On or about April 7, 2009, the Plaintiff filed its Response to Motion to Dismiss.
Apparently said Response was also served via U.S. Mail on the undersigned, although it should be
noted that the Response does not contain a proper certificate of service, inasmuch as it states that a
copy was "furnished by U.S. Mail," but it fails to state to whom the copy was furnished.
3. In any event, the Response, and the Order (which was at that time a proposed Order)
were evidently delivered to the Court via some method which allowed the Court to receive the
All Rights Reserved
Motion to Vacate
-- Judge signed order without hearing and
without notice

Response and Order on April 7
th
or April 8
th
(which method must have been via facsimile
transmission or e-mail transmission, inasmuch as Plaintiffs counsel's office is in Tampa, Florida,
and if Plaintiffs counsel had mailed the Response and Order to the Court it would not have arrived
by April 7
th
or 8
th
).
4. On or about April 8, 2009, the Court singed the Order and the Court was docked by
the Clerk of Court at 9:35 a.m. on April 9
th
5. On or about April 10,2009, the undersigned counsel for the Defendant received a
packet from the Plaintiff s counsel containing the Plaintiff s Response to Motion to Dismiss, along
with a separate envelope with a conformed copy of the entered Order (which envelope had clearly
been provided to the Court by Plaintiffs counsel, inasmuch as it contained Plaintiffs counsel's
return address).
6. Undersigned counsel NEVERreceived either the Response to Motion to Dismiss, or
the proposed Order, prior to the entry by the Court ofthe Order, and only received the Response and
the already entered Order on the same date, April 10, 2009, after the Order had already been entered.
One can imagine undersigned counsel's surprise on April 10
th
, upon receiving the Response to
Motion to Dismiss and the already entered Order, denying his client's Motion to Dismiss, when he
had been totally unaware that a response had been filed or that a proposed Order had been submitted
to the Court.
7. Clearly, undersigned counsel was NOT given an opportunityto reply to the Response
to Motion to Dismiss, or the opportunity to comment on or object to the Order prior to its entry.
8. Further, the foregoing clearly shows that the Plaintiff s counsel directed an improper
ex parte communication to the Court (of which the Court was likely unaware).
9. Moreover, Plaintiffs counsel's conduct in forwarding the Response to Motion to
Dismiss and the proposed Order to the Court without simultaneously providing it to undersigned,
violates local Administrative Order 98-19, and the "Guidelines for Professional Conduct ofthe Trial
Lawyers Section of the Florida Bar," which have been adopted by this Circuit (the "Professional
Guidelines"), and which are quoted more fully below.
10. In response to the receipt of the Response to Motion to Dismiss, and the already
entered Order denying Mr. Bernard's Motion to Dismiss, undersigned counsel corresponded with
counsel for the Plaintiff, giving counsel for the Plaintiff the benefit of the doubt as to all of the
foregoing, and asking himto consent to the Order being vacated and the scheduling of a hearing on
the Motion to Dismiss. A copy of undersigned's April 15, 2009, letter to Plaintiffs counsel is
attached hereto and incorporated herein as Exhibit "A," which letter stated, inter alia:
I was a bit surprised last Friday to receive on the same day your
client's Response to Defendants' Motion to Dismiss and an Order
signed by Judge Skinner Denying Defendant's Motion to Dismiss.
Bank ofAmerica, et al., PlaintifJ(s) v. Robert Bernard, et aI., Defendant(s)
Case No.: 2009-310-CA; Division: B
Defendant's Motion to Vacate, Etc.
Page 2 of 12 (c) 2009, Steven P. Combs
All Rights Reserved
,
,

Evidently, your firm sent a proposed order with or without a cover
letter to Judge Skinner which I never received and to which I never
had the opportunity to respond....
In any event, I understand that large foreclosure plaintiff firms tend
to act as a machine which can be difficult to control. I am hopeful
that you would not intend to communicate on such an ex parte basis
with a Judge intentionally. I would ask that you agree to set aside the
Court's Order Denying the Motion to Dismiss and cooperate in the
scheduling of hearing on the motion and your response thereto. If
you did intentionally provide your proposed order to the Judge
without copying me, please let me know so I can file the appropriate
motion.
I look forward to hearing from you at your soonest possible
convenience. You may call me any time today on my cellular
telephone at 904-349-3005. I want to believe that what happened in
this case was an accident. But if I do not hear from you, I will
proceed with the understanding that you intentionally communicated
with the Court in an ex parte fashion and I will file a motion to set
aside the Order and file a motion seeking sanctions for the same.
11. As of the date hereof, undersigned has heard nothing from Plaintiffs counsel in
response to the foregoing letter, and, thus, this motion was necessitated.
Motion to Vacate
12. Although the error may be created by the sharp practice of counsel, Florida law is
clear that it is error for the Court to enter an Order prepared by one party and forwarded to the Court
by that same party, without prior notice to the other side, and without providing the other side an
opportunity to comment on the proposed Order and/or provide his/her own proposed order. This is
especially true when the proposed Order was unsolicited by the Court, and was prepared by one side
without any direction from the Court as to the Court's findings and/or ruling.
13. In Siegel v. BocaChase Property Owners' Assoc., 904 So.2d 557 (Fla. 4
th
DCA2005)
the Court addressed a similar situation, as follows:
In this appeal, Doreen Siegel challenges a final order of foreclosure
... We reverse because the trial court erred in signing a proposed
final judgment submitted by Boca Chase, which was not
requested by the trial court and signed only three days after Boca
Chase's simultaneous certificate of service of the proposed final
judgment to both the trial court and Siegel, giving Siegel virtually
Bank ofAmerica, et al., PlaintifJ(s) v. Robert Bernard, et al., Defendant(s)
Page 3 of 12
All Rights Reserved

no opportunity to file a meanineful response. See Perlowv. Berg-
Perlow, 875 So.2d 383, 390 (Fla. 2004); Ross v. Botha, 867 So.2d
567 (Fla 4
th
DCA 2004).
Siegel, 904 So.2d 557 (emphasis added).
14. In the instant case this is exactly what occurred, to wit: Plaintiffs counsel prepared
an unsolicited proposed Order denying the Defendant's Motion to Dismiss; Plaintiffs counsel
delivered the unsolicited proposed Order to the Court (and presumably a courtesy copy ofPlaintiffs
Response to Motion to Dismiss) WITHOUT delivering a copy ofeither to counsel for the Defendant
by a method which would ensure the receipt of same at approximately the same time as the Court;
the proposed Order was entered either the same day it was received by the Court, or the next day;
and the Defendant's counsel was NOT provided with a copy of either the Response to Motion to
Dismiss or the proposed Order until AFTERthe proposed Order was already an actual Order ofthe
Court, a/ate acompli, if you will.
15. Accordingly, the Seigel case, along with the Perlow, case, cited by the Court in
Seigel, both require that the Order be vacated. Seigel, 904 So.2d 557; Perlow, 875 So.2d at 390
(Florida Supreme Court held that it was error for the Trial Court to accept "verbatim a proposed
judgment submitted by one party without an opportunity for comments or objections by the other
party").
16. Moreover, the facts of the instant case are even worse than those ofthe Siegel case,
inasmuch as the Plaintiffs counsel's submission of the proposed Order to the Court was not even
copied to undersigned counsel, as it was in the Siegel case (which failure is a violation of the
Professionalism Guidelines, quoted more fully above, which guidelines have been adopted by this
Circuit).
17. More specifically, the Professional Guidelines provide, inter alia:
J. EX PARTE COMMUNICATIONS WITH THE COURT AND
OTHERS.
1. A lawyer should avoid ex parte communication on the
substance of a pending case with a judge before whom such case
is pending.
3. Attorneys should notify opposing counsel of all oral or written
communications with the court or other tribunal, except those
involving only scheduling matters.... Copies of any submissions to
the court (such as correspondence. memoranda of law. case law.
etc.) should simultaneously be provided to opposing counsel by
Bank ofAmerica, et al., Plaintiff(s) v. Robert Bernard, et al., Defendant(s)
Page 4 of 12
All Rights Reserved

substantially the same method of delivery by which they are
provided to the court. For example, if a memorandum of law is
hand-delivered to the court, at the same time a copy should be hand
delivered or faxed to opposing counsel. If asked by the court to
prepare an order. counsel should furnish a copy ofthe order. and
any transmitted letter. to opposing counsel at the time the
material is submitted to the court.
(Emphasis in bold and underlining added). See LocalAdministrative Rule 98-10, which adopts the
Guidelines and requires all attorneys practicing in this Circuit to be familiar with them and follow
them.
18. Thus, the Professionalism Guidelines also require that the Order be vacated.
19. Further, in Florida Department of Revenue v. Thurmond, 721 So. 2d 827 (Fla. 3d
DCA 1998), the Court reversed an order dismissing a case, where prior notice thereofwas not given,
explaining: "This court has repeatedly held that ajudgment entered without notice to a party is void
ab initio" and that "the passage of time cannot make valid that which has always been void." Id.,
citing, Metropolitan Dade Countyv. Curry, 632 So. 2d 667,668 (Fla. 3d DCA 1994); Cam-La. Inc.
v. Fixel, 632 So. 2d 1067, 1068 (Fla. 3d DCA 1994); Shields v. Flinn, 528 So. 2d 967,968 (Fla. 3d
DCA 1988); Falkner v. Amerifirst Fed. Savs. and Loan Ass'n, 489 So. 2d 758, 759 (Fla. 3d DCA
1986); Ramagli Realty Co. v. Craver, 121 So. 2d 648,654 (Fla. 1960).
20. The case law is also clear that the foregoing principle applies equally to orders, as
well as judgments. See Thurmond, 721 So.2d 827 (order dismissing case entered without notice
vacated as being void); Curry, 632 So.2d at 668 (order for return of personal property which was
entered without notice held to be void).
21. Based onall ofthe foregoing, it is clear that the Order should be immediatelyvacated,
and the Court should schedule a hearing on the Motion to Dismiss, so as to afford BOTH parties an
opportunity to be heard as to the merits thereof.
Memorandum of Law in Reply to Response to Motion to Dismiss
"Four Comers" Rule
beyond the "four comers" of the Complaint.
on a motion to dismiss considered matters outside ofthe "four comers" of the Complaint, stating:
... [T]he trial court erred in ruling on the motion to dismiss by
Bank ofAmerica, et aI., PlaintifJ(s) v. Robert Bernard, et al., Defendant(s)
Case No.: 2009-31O-CA; Division: B
Page 5 of 12
All Rights Reserved

makine factual findines beyond the four corners ofthe forfeiture
corners" of the complaint. Id. The value ofBowers' vehicle is not
(Fla. 2d DCA 1998), "Althoueh these facts may ultimately prove
a motion for summary judement."
Plaintiff as to why the Motion to Dismiss should be denied went outside the "four comers" of the
Complaint.
25. The first argument asserted by the Plaintiff which goes outside the "four comers" is
Response to Motion to Dismiss, which was missing from its Complaint, and no portion ofwhich was
quoted in its Complaint, that the portion ofthe Motion to Dismiss directed to the Plaintiffs failure
26. First, the argument clearly goes outside the "four comers" ofthe Complaint. That is,
since the Mortgage Note is not attached to the Complaint, considering the Mortgage Note in ruling
on the Motion to Dismiss is in error. Bowers, 987 So.2d 148 (emphasis added).
that ifthe cause of action is based upon a written documents, the document itself must be attached
to the Complaint, or sufficient portions thereofmust be quoted in the Complaint. More specifically,
the pleadine....
Page 6 of 12
All Rights Reserved

Rule 1.130(a), Florida Rules ofCivil Procedure (emphasis in bold in original; emphasis in bold and
underlining added).
28. Moreover, the case lawis clear that a Complaint which fails to attache or quote from
the written instrument upon which the cause ofaction is founded fails to state a cause ofaction, and
is subjectto dismissal. Safeco Ins. Co. ofAm. v. Ware, 401 So. 2d 1129,1130 (Fla. 4th DCA 1981).
Defendant's Motion to Dismiss as a frivolous pleading, where the Motion to Dismiss was based on
the Plaintiff's failure to attach the contract upon which the Plaintiff's claim was based:
dismiss. Trawick, Florida Practice & Procedure 6-15 (1980)... In
question. Trawick, supra....
In view ofthe foregoing the appellant's motion to dismiss was not
a copy of the policy to attach to the Complaint. Thereafter, the Defendant provided a copy ofthe
thereof. The appellate court in Safeco agreed, and stated that the Plaintiffshould have donejust that.
30. Just as in the Safeco case, the Defendant's Motion to Dismiss in the instant case is
attach the Mortgage Note (which Mortgage Note the Plaintiffclearly had, inasmuch as the Plaintiff
31. Further, the Plaintiff's argument that attaching the Mortgage Note to its Response to
Motion to Dismiss cures the defect, ignores the case law which provides that the attachment of the
Page 7 of 12
All Rights Reserved

missing document to some other document in the Court file is not sufficient to cure such a defect,
as well as the case lawwhich provides that ifthe provisions ofan attached document contradict the
allegations of the pleading that the Complaint fails to state a cause of action. Hughes v. Home
Savings ofAmerica, 675 So.2d 649 (Fla. 2d DCA 1996); Hunt Ridge at Tall Pines, Inc. v. Hall, 766
So. 2d 399, 401 (Fla. 2d DCA 2000); Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 494
(Fla. 3rd DCA 1994).
32. More specifically, in Hughes, 675 So.2d 649, the Plaintifftherein convincedthe Trial
exhibits.
Response to Motion to Dismiss does not "breathe life" into the Complaint herein.
34. Further, the Defendant is entitled to an opportunity to carefully reviewthe Mortgage
the plain meaning ofthe exhibits control and may be the basis for a motion to dismiss. "); Ginsberg,
645 So.2d at 494 (Fla. 3rd DCA 1994) (where exhibits contradict allegations ofcomplaint, the plain
meaning of the exhibits control); McKey v. D.R. Goldenson & Co.. Inc., 763 So. 2d 409 (Fla. 2d
DCA2000) (stating that ifan attached document to a complaint negates the pleader's cause ofaction,
35. Accordingly, attaching the Mortgage Note to the Response to Motionto Dismiss does
dismissal (assuming that the Mortgage Note does not contradict any ofthe allegations contained in
36. Finally, the Plaintiffattempts to convince the court that the note need not be attached
v. Mid-Century Ins. Co., 398 So.2d 974 (Fla. pt DCA 1981); and Helton v. Gunderson, 802 So.2d
Page 8 of 12
All Rights Reserved

37. Specifically, inthe Joymer case the Court never discussed whether a copy ofthe note
needed to be attached to the complaint. Instead, what the Court therein actually stated is:
any entity ever had possession ofthe original loan documents or that
NLI knewthe time and manner oftheir loss. In response, NLI sought
the complaint withprejudice, therebyprecludingNLI from taking any
further action in this case. NLI appeals this order.
1989); Pastore-Borroto Development. Inc. v. Marevista Apartments,
(1999).
Tex. Bus. & Comm. Code 3-309), affd 212 F.3d 595 (5th Cir.
ofthe note or that it was entitled to enforce the note when it was lost,
previously granted, it is an abuse ofdiscretion to dismiss a complaint
Kovach v. McLellan, 564 So. 2d 274,276 (Fla. 5th DCA 1990); See
Bank ofAmerica, et al., PlaintifJ(s) v. Robert Bernard, et aI., Defendant(s)
. Case No.: 2009-31O-CA; Division: B
Page 9 of 12
All Rights Reserved

assignable right ofenforcement, the trial court erred in dismissing the
38. Likewise,Amikerv. Mid-Centmylns. Co., 398 So.2d 974 (Fla. IstDCA 1981), dealt
We further note that Rule 1.13O(a) does not require attachment ofthe
ofthe policythrough discovery, they maybe able to procure sufficient
information about the policy's contents to adequately allege the
material provisions in an amended complaint
This is not equivalent to the proposition put forth by the Plaintiffthat the mortgage note need not be
attached where, as in the instant case, Count I which sets forth the cause of action for foreclosure
contains not even the scantest of details regarding the note's material provision.
975-76 (Fla. 1st DCA 1981).
40. Thus, it is not accurate for the Plaintiffto state that its Count for Foreclosure should
Case No.: 2009-31O-CA; Division: B
Page 10 of 12
All Rights Reserved
'. ,

Argument that Mortgage Note was Endorsed in Blank
Goes Beyond "Four Comers" of the Complaint
41. In paragraph 7 of Response to Motion to Dismiss, the Plaintiff states: "In addition,
the Mortgage Note has been endorsed in blank. These facts make Plaintiff the proper holder and
give it the right to enforce the Mortgage Note and Mortgage."
42. Amazingly, there is no allegation whatsoever in the Complaint that the Mortgage
Note was endorsed in blank, and that this makes the Plaintiff the proper holder and allows the
Plaintiff to enforce the Mortgage Note. Indeed, the Plaintiff asserts in the existing Complaint that
it is not in possession ofthe original Mortgage Note, and the Complaint contains a lost note count,
but in the Response to Motion to Dismiss the Plaintiff now asserts that it is in possession of the
original note and will be dismissing the lost note count.
43. Not only is the foregoing argument clearly outside the "four comers" of the
Complaint, but the Plaintiff has not filed the original note with the Court, nor has the Plaintiff
dismissed Count II, the "lost note" count.
44. Accordingly, requiring the Defendant to "answer" the Complaint as it stands is in
error, and will not only provide no opportunity for the Defendant to test the sufficiency of the
allegations ofthe Complaint vis-a-vis any contradictory allegations contained in the Mortgage Note,
but will require the Defendant to answer the "lost note" count, which the Plaintiff states will be
dismissed, but which, as of today, still stands.
Motion to Strike Response to Motion to Dismiss and
Motion for Attorneys Fees and Costs
45. The Response to Motion to Dismiss should be stricken, and not even considered by
the Court inasmuch as the Motion does not contain a proper certificate of service, as required by
Rule 1.080(f), Florida Rules of Civil Procedure.
46. Additionally, the Response to Motion to Dismiss should be stricken due to the
Plaintiffs counsel's conduct in forwarding an unsolicited proposed Order (as well as presumably
a courtesy copy of the Response) to the Court without simultaneously providing a copy thereof to
the undersigned by a method which would ensure that the undersigned would receive same at the
same time as the Court. Not only did the Plaintiffs counsel's conduct in this regard violate the
Professional Guidelines with respect to presenting proposed orders to the Court and the ex parte
communicationprovisions ofsaid Guidelines (which are quoted move fully above), but said conduct
resulted in the undersigned having no opportunity whatsoever to comment on the proposed Order,
or even know about the submission ofthe proposed Order until the Order was an actual Order, and
a fate acompli.
47. Finally, the Response should be strickendue to the Plaintiffs counsel's representation
to the Court as to the legal authority cited therein, which representations amount to misleading the
Page II of 12
All Rights Reserved

tribunal regarding the law on the issues herein.
48. The Defendant has hired undersigned counsel to represent him in this action and
agreed to reasonable pay fees and costs associated therewith. But for the Plaintiffs counsel's
conduct, as set froth herein, the Defendant would not have had to incur the fees and costs to prepare
this motion and reply. Accordingly, the Court should require the Plaintiffto pay and/or contribute
to the fees and costs incurred by the Defendant in responding to and defending against the Plaintiffs
counsel's conduct herein.
WHEREFORE, the Defendant, Robert Bernard, prays this Honorable Court vacate the Order
Denying Defendant's Motion to Dismiss, to strike the Plaintiffs Response to Plaintiffs Motion to
Dismiss, and to grant the Plaintiff reasonable fees and costs in this action.
SIEVE COMBS, ASSOCIATION
. __.. .. _....w.
STEVEN P. COMBS
550 Water Street, Suite 1150
Telephone (904) 359-5505
Facsimile (904) 359-5506
Counsel for the Defendant, Robert Bernard
I HEREBY CERTIFY that a copy ofthe foregoing on this 20
th
day ofApril, 2009, has been
delivered by United States Mail to Scott Griffith, Esquire, Florida Default Law Group, Post Office
Box 25018, Tampa, Florida 33622-5018.
Page 12 of 12
All Rights Reserved
COUNTY, FLORIDA
CASE NO.: 16-2008-CA-002925
DIVISION: CV-D
WELLS FARGO BANK, NATIONAL
ASSOCIATION, AS CUSTODIAN FOR
MORGAN STANLEY ABS CAPITAL,
MSAC 2007-HE6 BY: SAXON MORTGAGE
SERVICES, INC., F/K/A/ MERITECH
MORTGAGE SERVICES, INC., AS THEIR
ATTORNEY-IN-FACT.
Plaintiff,
vs.
ROBERT TAYLOR, AND LENA E.
SKEETE, ET AL.
Defendants.
_____________________________________/
DEFENDANT LENA E. SKEETES VERIFIED MOTION TO VACATE THE
CLERKS DEFAULT AND FOR LEAVE TO FILE A RESPONSIVE PLEADING
Comes now, Defendant, Lena E. Skeete ,(hereinafter Defendant Mrs. Skeete) pursuant to
Rules 1.190(a) and 1.500(d), Florida Rules of Civil Procedure, and moves this Court to vacate the
default entered in this matter by the Clerk of the Court on February 19, 2009, and for leave to file
a responsive pleading, and in support thereof states:
FACTS
1. March 5, 2008, Plaintiff filed a two count complaint against, inter alia, Defendant,
Lena E. Skeete (hereinafter Defendant Mrs. Skeete), and Robert Taylor (hereinafter Defendant
Mr. Taylor) for foreclosure of a residential mortgage and for reestablishment of a lost note.
2. Defendant Mrs. Skeete is an 87 year old woman who suffers from diabetes and
diabetic complications, is often not ambulatory, is often restricted by her intermittent use of oxygen,
and when ambulatory, must use a walker.
3. On March 6, 2008, Plaintiff purported to personally serve Defendant Mrs. Skeete
at her residence which is the subject of its action, which was erroneously listed on the return of
service as a mobile home. However, notwithstanding the representations of the process server
All Rights Reserved
Motion to Vacate Clerk's Default
Page 2 of 6
employed by Provest, LLC, Defendant Mrs. Skeete was ill (in bed using oxygen), in at the time that
she was purportedly served and was not, in fact, personally served with the process as indicated in
the return. Instead, it appears that her son was served, but he did not give her the papers and did not
explain to her that she had been served with foreclosure paperwork.
4. Ms. Skeete was unaware of this foreclosure action until, in her words, a month or
so ago. She was additionally unaware of any issues regarding problems with payments on the note
and mortgage.
5. No record action was undertaken by Plaintiff, other than filing the summons and
returns of service, in this case until February 12, 2009. Interestingly, the Plaintiff was not assigned
the underlying Mortgage until November 7, 2008, approximately nine months following the date that
the Plaintiffs filed this action. Moreover, it is of significant interest that counsel for the Plaintiff
drafted the Assignment. See Exhibit A, Assignment of Mortgage.
6. On February 12, 2009, Plaintiff filed its Motion for Default, seeking entry of a default
against Defendant, Mrs. Skeete.
7. On February 19, 2009, the Clerk of the Court, acting through a deputy, entered a
Clerks default against Defendant Mrs. Skeete.
ARGUMENT
The Default Should Be Set Aside As To Defendant Mrs. Skeete Due To Lack of Service
8. Statutes governing service of process are strictly construed to assure that defendants
are notified of proceeding and have the opportunity to protect their rights. Shurman v. Atlanytic
Mortg. & Inv. Corp, 795 So.2d 952, 953-54 (Fla. 2001); Torres v. Arnco Constr., Inc., 867 S0.2d
583, 586 (Fla. 5 DCA 2004). The party invoking the Courts jurisdiction has the burden of proving
th
the validity of service of process. Torres,876 So.2d at 587.
9. In the instant case, the return of service lacks on its face any indicia of reliability as
it lists the structure in this case as a mobile home, which, as one can ascertain from mortgage, is
absolutely false. Moreover, Defendant Mrs. Skeete, swears and affirms that she was not personally
served as indicated in the return. Accordingly, the proof of service should be stricken and the
default consequent thereto should be quashed.
In the alternative, the Default Should be Set Aside Due
to Excusable Neglect, Diligence, and Meritorious Defense
10. The Court in Gibson Trust, Inc., v. Office of the Attorney General, 883 So.2d 379,
382 (Fla. 4 DCA 2004), stated the standard for vacating a clerks default, explaining:
th
Florida courts have a liberal policy of vacating defaults so that cases
All Rights Reserved
Page 3 of 6
can be decided on the merits. See N. Shore Hosp., Inc. v. Barber,
143 So. 2d 849, 853 (Fla. 1962); Coquina Beach Club Condo. Ass'n
v. Wagner, 813 So. 2d 1061, 1063 (Fla. 2d DCA 2002). In the case
of an interlocutory order of default, any reasonable doubt should be
resolved in favor of vacating it. Id. at 1064. To be relieved of a
default, a party must show excusable neglect, a meritorious
defense, and due diligence. Id. at 1063.
In Somero v. Hendry General Hospital, 467 So. 2d 1103 (Fla. 4th
DCA 1985), we stated:
[W]here inaction results from clerical or secretarial
error, reasonable misunderstanding, a system gone
awry or any other of the foibles to which human
nature is heir, then upon timely application
accompanied by a reasonable and credible
explanation the matter should be permitted to be
heard on the merits. It is a gross abuse of
discretion for the trial court to rule otherwise.

Id. at 1106 (emphasis supplied).
See also Allstate Ins. Co. v. Ladner, 740 So. 2d 42, 43 (Fla. 1st DCA 1999)(to same effect).
Excusable Neglect
11. In the instant case, Defendant Mrs. Skeete is a disabled octogenarian. She was not
informed of the existence of this proceeding very recently. Once she became aware of this case, and
was able to raise the modest sum of $500.00 as an for an initial retainer, she immediately secured
counsel.
Meritorious Defense
12. Defendant Mrs. Skeete has the following meritorious defenses to the foreclosure
action which should be the subject of ongoing discovery in this litigation:
a. The Plaintiff does not have standing to bring the instant action in as much as
the mortgage was not assigned to the Plaintiff until nearly nine months after this action was filed.
At best for Plaintiff, where such an assignment post-dates the filing of a complaint, a question arises
as to whether the Plaintiff secured its interest in the mortgage before or after the filing of the
foreclosure action and the Court should undertake an evidentiary hearing to determine when the
Plaintiff obtained its interest in the mortgage. See WM Specialty Mortgage, LLC, V. Salomon, 874
So. 2d 680 (Fla. 4 2004). At worst, the Plaintiff should not be allowed to pursue this foreclosure
th
case because it lacked any equitable interest in the mortgage at the time of the commencement of
All Rights Reserved
One study has shown that in 2005 GE Money Bank and its sister General Electric
1
mortgage company WMC Morgtage made the third highest number of higher cost home loans.
Who Really Gets Higher-Cost Home Loans? Home Loan Disparities by Income, Race, and
Ethnicity of Borrowers and Neighborhoods in 14 California Communities in 2005, California
Reinvestment Coalition (2006), published at www.calreinvest.org/system/assets/39.pdf, at page
22. But of these high cost home loans, one poll suggest that one-half of the loans were made on
terms higher than those for which the borrower qualified. Id. At 7. Citing Paul D. Davies, Beg,
Borrow, Besieged, Philideplphia Daily News, February 5, 2001 (citing results of poll of 50 most
active subprime lenders reported by trade publication Inside Mortgage Finance, that found that
50% of their borrowers could qualify for a conventional loan). See also Lopez et al. v. GE
Money Bank, et al., 2:08-cv-00479-R-FFM (C.D. Cal.) (Class action pending in the Federal
District Court in and for the Central District of California in which plaintiffs, who speak only
Spanish, allege that the defendants used a discretionary pricing policy to subject them to hidden
rate mark-ups. The Lopez plaintiffs allege that the discrimination against them was intentional.
They claim that the discretionary policy at issue was designed to encourage lending agents to
obtain higher rates from minority borrowers, while at the same time insulating the defendants
themselves from any charges of discrimination. The plaintiffs bring causes of action for violation
of the Equal Credit Opportunity Act and the Fair Housing Act. They seek injunctive relief,
disgorgement, actual and punitive damages, and their costs.)
Page 4 of 6
suit. See Jeff-Ray Corp. v. Jacobson, 566 So. 2d 885, 886 (Fla. 4th DCA 1990) (holding that the
assignee of a mortgage could not maintain the mortgage foreclosure action because the assignment
was dated four months after the action was filed; if the plaintiff wished to proceed on the
assignment, it must file a new complaint); see also State Street Bank and Trust Company v. Lord,
851 So. 2d 790 (Fla. 4 DCA 2003)(mortgagee could not pursue foreclosure in the absence of proof
th
that either the mortgagee, or its assignor, ever had possession of the missing promissory note).
b. Defendant Mrs. Skeet appears to be a victim of discriminatory lending
practices in violation of the 42 USC 3601, the Equal Credit Opportunity Act, 15 USC 1691, and
the Civil Rights Act, 42 USC 1981, 1982. Mrs. Skeete and her co-borrower, her adult son,
Robert Taylor, are African American, and the home subject to this action is in the northwest
quadrant of Jacksonville, which is considered by many as a predominantly minority section of Duval
County, Florida. The instant loan was originated by GE Money Bank. GE Money Bank has a
history of engaging in high priced loans and/or predatory lending practices. The Defendants loan
1
was an adjustable rate mortgage, with an initial interest rate of 8.65% amortized over 50 years but
with a 30 your maturation date. See Addendum to Adjustable Rate Note. (With such terms, on the
maturation date of the note, much of the principle would be due and owing when the note matures
in the 30th year.) The initial interest rate assessed to Mrs. Skeet and her son was 8.65% at a time
when 30 year adjustable mortgages were being offered at around 5.5%. See
http://mortgage-x.com/trends.htm. While foreclosure is governed by statute, it is an equitable
action. Because equity abhors discrimination and equity will not enforce discriminatory
practices, the discriminatory lending practices of the Plaintiff may be a meritorious defense to the
All Rights Reserved
Page 5 of 6
Complaint. See M& T Mortgage, Co. v. Foy, 858 N.Y.S.2d 567, 20 Misc. 3d 274 (S.Ct. Kings
County N.Y. 2008)(also providing that equity demands that were the issue of reverse redlining is
raised that the Plaintiff must bear the burden of establishing that the terms of the loan were not the
results of a discriminatory lending practices).
Exercise of Due Diligence
13. Ms. Skeete filed this action promptly after learning of the existence of this action.
In considering a motion to set aside a default, courts must evaluate both the extent of the delay as
well as the reasons for the delay. Cinkat Transp. Inc. v. Maryland Casualty Co., 596 So.2d 746,
747 (Fla. 3d DCA 1992)(citations omitted). The reason for Mrs. Skeetes delay was that she
was unaware of this case until recently. Because Defendant Mrs. Skeete is filing this motion in
such time frame reflects due diligence in obtaining relief after learning of the default. See Roberts
v. Safeway Insurance Co., 610 So.2d 700 (Fla. 3 DCA 1992)(trial courts denial of motion to
rd
vacate after a 63 day delay reversed); Atlantic Asphalt & Equipment, Co., Inc., 578 So.2d 292 (Fla.
3d DCA 1991)(trial courts denial of motion to vacate after a 63 day delay reversed).
Conclusion
14. As stated by the Court in Gibson, in the case of an interlocutory order of default,
any reasonable doubt should be resolved in favor of vacating [the default]. Id. Citing Coquina
Beach Club Condo. Ass'n v. Wagner, 813 So. 2d 1061, 1063 (Fla. 2d DCA 2002). In the instant
case, Defendant Mrs. Skeete has clearly shown: (1) excusable neglect; (2) a meritorious defense to
the opposing party's claims; and (3) has exercised due diligence in obtaining relief after learning
of the default. See Allstate Ins. Co. v. Ladner, 740 So. 2d 42, 43 (Fla. 1st DCA 1999). Accordingly,
the Court should vacate the default entered against Defendant Mrs. Skeete and grant her leave to file
a response within 20 days thereafter.
WHEREFORE, the Defendant Mrs. Skeete prays this Honorable Court vacate the default
entered against her and grant her leave to file a response within 20 days thereafter.
STEVE COMBS, PROFESSIONAL ASSOCIATION
_______________________________________
STEVEN P. COMBS
Telephone (904) 359-5505
Facsimile (904) 359-5506
Counsel for the Defendant, Lena E. Skeete and Robert
Taylor
All Rights Reserved
Page 6 of 6
VERIFICATION BY LENA E. SKEETE
STATE OF FLORIDA
COUNTY OF DUVAL
BEFORE ME, the undersigned authority, duly authorized to administer oaths and take
acknowledgments, personally appeared Lena E. Skeete, who, being by me first duly sworn, deposes
and says: That she is a defendant in the above-styled cause, that she has read the foregoing and that
the facts and information contained therein are true and correct.
___________________________________
Lena E. Skeete
Sworn to and subscribed before me
this ____ day of _____________, 2009.
_______________________________
Notary Public, State of Florida
____ Personally known to me
____ Produced driver's license

I HEREBY CERTIFY that a copy of the foregoing on this 21 day of April, 2009, has been
st
delivered by United States Mail to Karen A. Thompson, Law Offices of Marshall C. Watson, P.A.,
1800 N.W. 49 St., Ste. 120, Fort Lauderdale, FL 33309.
th
______________________________________
Attorney
All Rights Reserved
COUNTY, FLORIDA
CASE NO.: 16-2009-CA-005917-XXXX-MA
DIVISION: CV-G
WELLS FARGO BANK, NA,
Plaintiff,
vs.
JOHN JAY STARR, SUMMER M. STARR,
et al.,
Defendants.
_____________________________________/
DEFENDANT SUMMER M. STARRS VERIFIED MOTION TO VACATE THE
CLERKS DEFAULT AND FOR LEAVE TO FILE A RESPONSIVE PLEADING
Comes now, Defendant, SUMMER M. STARR (hereinafter Defendant Mrs. McGriff)
pursuant to Rules 1.190(a) and 1.500(d), Florida Rules of Civil Procedure, and moves this Court to
vacate the default entered in this matter by the Clerk of the Court on June 9, 2009, and for leave to
file a responsive pleading, and in support thereof states:
FACTS
1. Shortly after the time that the Defendant, SUMMER M. STARR, (hereinafter Mrs.
Starr) was served in this action, she and her Co-Defendant, John Jay Starr, her husband, relocated
to Orlando, Florida, for her husband to obtain employment. After residing there for three weeks,
she discovered that her spouse was having an affair, whereupon she returned to Jacksonville and
resumed living at the home which is the subject of this foreclosure action.
2. Because of the uncertainty of her future due to her separation from her husband, and
the effect that the stress which she suffering was having upon her, Mrs. Starr failed to take timely
action to file a responsive pleading in this matter. However, recently, Mrs. Starr took stock of the
situation and opted to take action to defend this matter. More particularly, Mrs. Starr, on August
25, 2009, which was coincidentally the same day that a default was entered against her in this case,
retained undersigned counsel.
3. Mrs. Starr did not become aware that a default had been entered against her until so
informed by her undersigned counsel on the date that this motion was served.
ARGUMENT
The Default Should be Set Aside Due
to Excusable Neglect, Diligence, and Meritorious Defense
5. The Court in Gibson Trust, Inc., v. Office of the Attorney General, 883 So.2d 379,
All Rights Reserved
Motion to Vacate Default
Page 2 of 4
382 (Fla. 4 DCA 2004), stated the standard for vacating a clerks default, explaining:
th
Florida courts have a liberal policy of vacating defaults so that cases
can be decided on the merits. See N. Shore Hosp., Inc. v. Barber,
143 So. 2d 849, 853 (Fla. 1962); Coquina Beach Club Condo. Ass'n
v. Wagner, 813 So. 2d 1061, 1063 (Fla. 2d DCA 2002). In the case
of an interlocutory order of default, any reasonable doubt should be
resolved in favor of vacating it. Id. at 1064. To be relieved of a
default, a party must show excusable neglect, a meritorious
defense, and due diligence. Id. at 1063.
In Somero v. Hendry General Hospital, 467 So. 2d 1103 (Fla. 4th
DCA 1985), we stated:
heard on the merits. It is a gross abuse of discretion
for the trial court to rule otherwise.

Id. at 1106 (emphasis supplied).
See also Allstate Ins. Co. v. Ladner, 740 So. 2d 42, 43 (Fla. 1st DCA 1999)(to same effect).
Excusable Neglect
6. In the instant case, Mrs. Starr failure to file a responsive pleading was a direct result
of her being under the immense stress of the recent breakdown of her marriage. This is certainly the
type of human foible which could fall within the rule set forth in Somero and Gibson Trust.
Meritorious Defense
7. Mrs. Starr has the following meritorious defenses to the foreclosure action which
should be the subject of ongoing discovery in this litigation:
a. The Plaintiff does not have standing to bring the instant action in as much as
the mortgage has never been assigned to the Plaintiff. At best for Plaintiff, where such an
assignment post-dates the filing of a complaint, a question arises as to whether the Plaintiff secured
its interest in the mortgage before or after the filing of the foreclosure action and the Court should
undertake an evidentiary hearing to determine when the Plaintiff obtained its interest in the
mortgage. See WM Specialty Mortgage, LLC, V. Salomon, 874 So. 2d 680 (Fla. 4 2004). At
th
worst, the Plaintiff should not be allowed to pursue this foreclosure case because it lacked any
All Rights Reserved
Page 3 of 4
equitable interest in the mortgage at the time of the commencement of suit. See Jeff-Ray Corp. v.
Jacobson, 566 So. 2d 885, 886 (Fla. 4th DCA 1990) (holding that the assignee of a mortgage could
not maintain the mortgage foreclosure action because the assignment was dated four months after
the action was filed; if the plaintiff wished to proceed on the assignment, it must file a new
complaint); see also State Street Bank and Trust Company v. Lord, 851 So. 2d 790 (Fla. 4 DCA
th
2003)(mortgagee could not pursue foreclosure in the absence of proof that either the mortgagee, or
its assignor, ever had possession of the missing promissory note).
b. In the instant case, the allonge attached to the note is ineffective. That is,
because there was space on the note upon which an indorsement could have been made, the blank
indorsement contained on the allonge is without effect as an indorsement. See All American Finance
Co. V. Pugh Shows, Inc., 30 Ohio St.3d 130 (1987); Pribus v. Bush, 118 Cal.App.3d 1003, 173
Cal.Rptr. 747 (1981); Estrada v. River Oaks Bank & Trust Co., 550 S.W.2d 719 (Tex.Civ.App.
1977); Tallahassee Bank & Trust Co. v. Raines,125 Ga.App. 263, 187 S.E.2d 320 (1972); Bailey
v. Mills, 257 Ala. 239, 58 So.2d 446 (1952); Bishop v. Chase,156 Mo.158, 56 S.W. 1080 (1900);
See, generally, Annotation, Indorsement of Negotiable Instrument by Writing Not on Instrument
Itself (1968), 19 A.L.R. 3d 1297; Annotation., Indorsement of Bill or Note by Writing Not On
Instrument Itself (1928) 56 A.L.R. 921, 924-926; See also GETTING ATTACHED: WHEN DO
ALLONGES MEET THE REQUIREMENTS OF THE NEW YORK UCC, New York Law Journal: Trends in
Real Estate and Title Insurance, Nov. 27, 2006(observing that the No-Space Test has been carried
over to the U.C.C. from the Law Merchant and the common law); Compare Freddie Mac Document
Custody Procedure Overview, Page 26, December 2003 (Stating with regard to the use of allonges:
Endorsements are to be on the Note unless there is no room on the front or back of the note.).
8. Mrs. Starr filed this motion promptly after learning of the Default entered by the
Clerk of the Court. In considering a motion to set aside a default, courts must evaluate both the
extent of the delay as well as the reasons for the delay. Cinkat Transp. Inc. v. Maryland Casualty
Co., 596 So.2d 746, 747 (Fla. 3d DCA 1992)(citations omitted). The delay in this case has only
been a matter of few days, which certainly reflects on her part due diligence in obtaining relief after
learning of the default. See Roberts v. Safeway Insurance Co., 610 So.2d 700 (Fla. 3 DCA
rd
1992)(trial courts denial of motion to vacate after a 63 day delay reversed); Atlantic Asphalt &
Equipment, Co., Inc., 578 So.2d 292 (Fla. 3d DCA 1991)(trial courts denial of motion to vacate
after a 63 day delay reversed).
Conclusion
9. As stated by the Court in Gibson, in the case of an interlocutory order of default,
any reasonable doubt should be resolved in favor of vacating [the default]. Id. Citing Coquina
Beach Club Condo. Ass'n v. Wagner, 813 So. 2d 1061, 1063 (Fla. 2d DCA 2002). In the instant
case, Mrs. Starr has clearly shown: (1) excusable neglect; (2) a meritorious defense to the opposing
party's claims; and (3) has exercised due diligence in obtaining relief after learning of the default.
See Allstate Ins. Co. v. Ladner, 740 So. 2d 42, 43 (Fla. 1st DCA 1999). Accordingly, the Court
should vacate the default entered against Mrs. Starr and grant her leave to file a response within 20
All Rights Reserved
Page 4 of 4
days thereafter.
WHEREFORE, the Defendant Mrs. Starr prays this Honorable Court vacate the default
entered against her and grant her leave to file a response within 20 days thereafter.
I HEREBY CERTIFY that a copy of the foregoing on the 25 day of August, 2009, has been
th
delivered by United States Mail to Victoria S. Jones, Florida Default Law Group, P.L., 9119
Corporate Lake Drive, Third Floor, Tampa, Florida 33634.
_______________________________________
STEVEN P. COMBS
Telephone (904) 359-5505
Facsimile (904) 359-5506
Counsel for the Defendant, Summer Starr
VERIFICATION BY SUMMER STARR
STATE OF FLORIDA
COUNTY OF DUVAL
acknowledgments, personally appeared Summer Starr, who, being by me first duly sworn, deposes
and says: That she is a defendant in the above-styled cause, that she has read the foregoing and that
the facts and information contained therein are true and correct.
___________________________________
Summer Starr
Sworn to and subscribed before me
this ____ day of _____________, 2009.
_______________________________
____ Produced driver's license
All Rights Reserved
CASE NO.: 2008-CA-14871-XXXX-M
DIVISION: CV-H
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE FOR MORGAN
STANLEY ABS CAPITAL I INC. TRUST
2007-HE7,
Plaintiff,
vs.
JEVON A. DELOACTH; MARIA C.
DELOATCH.
Defendants.
____________________________/
DEFENDANTS JEVON A. DELOATCH AND MARIA C. DELOATCHS ANSWER,
AFFIRMATIVE DEFENSES, COUNTER-CLAIMS AND DEMAND FOR JURY TRIAL
Comes now Defendants, Jevon A. DeLoatch and Maria C. DeLoatch, by and through
undersigned counsel, asserting their answer, affirmative defenses, counter-claims and demand
for jury trial, and in state:
ANSWER
1. Admit that this is an in rem action seeking foreclosure; denied that the Plaintiff
has stated a cause of action for foreclosure.
2. Admit that a note and mortgage where executed by the Defendants. Admit that
the mortgage was recorded in the Official Records of Duval County, Florida, at the book and
page number alleged. Admit that a copy of the mortgage is attached as an exhibit to the
complaint. The Defendants are without knowledge as to whether the copy of the note is attached
is a copy of the original note, and therefore deny the same and demand strict proof thereof.
All Rights Reserved
Answer, Affirmative Defenses and Counterclaims
-2-
3. Denied.
4. Admit.
5. Denied.
6. Denied.
7. Denied.
8. Denied.
9. The Defendants are without knowledge as to whether the Plaintiff have retained
the law firm of Albertelli Law and are obligated to pay said firm a reasonable fee for its services
and costs, and therefore deny the same and demand strict proof thereof.
10. Denied as to Defendants Jevon A. DeLoatch and Maria C. DeLoatch. As to the
remaining defendants, the Defendants are without knowledge and therefore deny the same and
demand strict proof thereof.
11. Admit.
12. Admit.
13. The Defendants are without knowledge and therefore deny the same and demand
strict proof thereof.
15. Denied because there is no such unknown spouse. Marie C. DeLoatch is the
known spouse of Jevon A. DeLoatch.
16. Denied because there is no such unknown spouse. Jevon A. DeLoatch is the
known spouse of Marie C. DeLoatch.
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17. Denied because there are no tenants.
18. Admitted that the Plaintiff seeks to re-establish a promissory note pursuant to
Section 673.3091, but denies that the Plaintiff has stated a cause of action to re-establish a
promissory note pursuant to Section 673.3091.
19. Admit.
20. Admit execution of a note by the Defendants. Denied that the note was executed in
favor of MERS as nominee for First NLC Financial Services, LLC. The Plaintiff has failed to state
a cause of action to re-establish a promissory note pursuant to Section 673.3091.
21. Denied. The Plaintiff has failed to state a cause of action to re-establish a promissory
note pursuant to Section 673.3091.
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AFFIRMATIVE DEFENSES
First Affirmative Defense
Failure to Provide Required Default Loan Servicing
1. The 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 the Defendants, 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. Plaintiffs non-
compliance with the laws requirement 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 the
Plaintiff its ability foreclose upon the subject property. Plaintiff cannot legally pursue foreclosure
unless and until Plaintiff demonstrated compliance with 12 U.S.C. 1701x(c)(5).
2. Additionally, on the face of the mortgage attached to the Plaintiff's complaint, and
appearing at the bottom of each and every page of the mortgage, is the following printed statement:
FLORIDA-Single Family-FNMA/FHLMC UNIFORM INSTRUMENT. As such, Plaintiff is
bound by the special single family residential default loan servicing set out by Fannie Mae and
Freddie Mac (Federal National Mortgage Association and the Federal Home Loan Mortgage
Corporation) and which are easily accessible to all borrowers whose loans include the
FLORIDA-Single Family-FNMA/FHLMC UNIFORM INSTRUMENT disclosure at the public
websites: www.fanniemae.com and www.freddiemac.com. Compliance with the Fannie
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Mae/Freddie Mac default loan servicing guidelines and with the plaintiff's own default loan
servicing practices is a contractual condition precedent to instituting this foreclosure action and the
failure of the plaintiff to implement foreclosure avoidance.
Second Affirmative Defense
Plaintiff Failure to Comply with Applicable
Pooling and Servicing Agreement Loan Servicing Requirements
3. Plaintiff failed to provide 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.
4. 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:
www.secinfo.com (specifically at: http://www.secinfo.com/dRSm6.u27n.c.htm#4g9v), 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.
5. 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.
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6. 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.
7. 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:
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 and 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.
8. 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.
9. 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.
10. Plaintiff intentionally failed to act in good faith or to deal fairly with these
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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.
Third Affirmative Defense
Unclean Hands
11. The Plaintiff comes to this Court with unclean hands, for multiple reasons, including
without limitation, the following:
a. The Plaintiff, by and through its agent, Saxon Mortgage Services, Inc.
(Saxon), purported to offer the Defendants default loan services, including the opportunity to
modify their loan. During the process, the Plaintiff, by and through its agent, Saxon, told the
Defendants to make no further payments on the loan.
b. The Plaintiff, by and through its agent, Saxon, provided the Defendants with
a loan modification application, which Defendants completed and timely returned. Plaintiff, by and
through its agent, Saxon, assigned the loan modification to a loan modification consultant employed
by Saxon. Defendants, by and through, Defendant, Devon A DeLoatch, telephoned Saxon, scores
of time regarding the loan modification process. Mr. DeLoatch left messages for his assigned loan
modification consultant regarding the status of the loan modification request. Mr. DeLoatch
requested also that any telephone calls made by his loan modification consultant be made to Mr.
DeLoatch cellular telephone.
c. Notwithstanding the scores of calls made by Mr. DeLoatch, and his request
to be contacted via his cellular telephone, the Plaintiff, acting by and through its agent, Saxon
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Mortgage Consultants, Inc.,and its loan modification consultant, called Mr. DeLoacth at home one
day, and because he was not there denied his loan modification for the following incredulous reason:
No response to our attempts to contact you.
d. Thereafter, Mr. DeLoatch was told that he needed to submit a second loan
modification package, which he did timely. Thereafter, Mr. DeLoatch called Saxon, on scores of
occasions regarding the status of his loan modification package. Eventually, Mr. DeLoatch was told
over the telephone by loan modification consultant employed Saxon, that he was not eligible
pursuant to the underwriting standards unless he could show additional income. Mr. DeLoatch in
that same conversation stated that he had such additional income in the form of payments from his
GI Bill. The loan modification consultant then told him that he would be eligible for a loan
modification and then proceeded to explain to him the terms of the new modified loan. Mr.
DeLoatch immediately provided evidence of his additional income. Mr. DeLoatch then called
repeatedly regarding the status of his loan modification, and was not provided any information. Mr.
DeLoatch learned that instant case had been filed at about the same time.
e. The Plaintiffs conduct in delaying the loan modification process, as well as
the Defendants detrimental reliance upon the Plaintiffs agents instruction to not make any
payments while the loan modification process was pending, and then pursuing foreclosure at the
same time the Defendants that they are eligible for a loan modification constitutes unclean hands.
f. Additionally, 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
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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.
Fourth Affirmative Defense
Failure of Good Faith and Fair Dealing:
Unfair and Unacceptable Loan Servicing
12. Plaintiff intentionally failed to act in food faith or to deal fairly with the subject
servicing as described in the foregoing Affirmative Defenses thereby denying Defendants access
to the residential mortgage servicing protocols applicable to the subject note and mortgage.
Fifth Affirmative Defense
Offer to Tender All or Part of the Amount Due Before Receipt of Notice of Acceleration
13. The Defendants offered to tender all or part of the amount due before receipt of the
notice of acceleration.
14. The Plaintiff, acting by and through its agent, Saxon, told the Defendants not to make
any additional payments because doing would result in Saxon being unable to consider a pending
request for loan modification.
15. It is inequitable for Plaintiff engage in conduct which discourages a homeowner to
not make payments and then to use the homeowners failure to pay as a basis for foreclosure.
Sixth Affirmative Defense
Waiver
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16. By engaging in conduct by and through its agent, Saxon, which discouraged the
Plaintiffs to tender past due payments to the Plaintiff, the Plaintiff has waived strict compliance of
the terms of the mortgage.
Seventh Affirmative Defense
Estoppel
Plaintiffs to tender past due payments to the Plaintiff, the Plaintiff is estopped from relying on the
Plaintiffs failure to make such payments on the mortgage as a basis for the instant foreclosure.
Eighth Affirmative Defense
Absence of Acceleration Provision in Note
18. While the note provides contractual language regarding the mailing of a default
notice upon failure to pay which notice would state that the Plaintiff has the right to accelerate (see
paragraph 7(D) of the note), no where in the note is there a clear and separate provision regarding
the Plaintiffs right to accelerate the note upon failure to make regular monthly payments. As the
original lender drafted the note, the terms of the note should be read most favorably in favor of the
Defendants. Accordingly, the note should be construed as failing to contain an acceleration
provision. Therefore, the Plaintiff is without authority to maintain the instant foreclosure action.
Ninth Affirmative Defense
Failure of Contractual Condition Precedent: No Notice of Default
19. Plaintiff failed to provide the Defendants with a Notice of Default and Intent to
Accelerate in compliance with the terms of the mortgage.
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Tenth Affirmative Defense
Illegal Charges Added to Balance
20. 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, service of process fees and/or 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.
Eleventh Affirmative Defense
Plaintiff Lacks Standing
21. The Plaintiff 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. Specifically, the Plaintiff
is not the party to whom the note was originally made, the Plaintiff has failed to provide by
attachment to the complaint any endorsement evidencing ownership of the note, and the Plaintiff has
failed to provide by attachment to the complaint any assignment of the mortgage. Accordingly, the
Plaintiff lacks standing to prosecute this action.
Twelfth Affirmative Defense
The Plaintiff Does Not Have the Right to Reestablish the Lost Note Because the Plaintiff
Cannot Provide Adequate Security Should Another Entity Later Present the Note
22. Section 673.3091, Florida Statutes, provides that:
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The court may not enter judgment in favor of the person seeking
enforcement unless it finds that the person required to pay the
instrument is adequately protected against loss that might occur by
reason of a claim by another person to enforce the instrument.
Adequate protection may be provided by any reasonable means.
23. Morgan Stanley ABS Capital I Inc. Trust 2007-HE7 is financially insolvent or at risk
of financially insolvency and is unable to adequately protect the Defendants by any reasonable
means against loss that might occur by reason of a claim by another person to enforce the
instrument, including, without limitation, by promise of indemnity. Likewise, the same is true of
Deutsche Bank National Trust Company.
24. Accordingly, the Plaintiff is not statutorily entitled to reestablish the lost mortgage
note.
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 the subject mortgage.
3. The Plaintiff, by and through its agent, Saxon Mortgage Services, Inc. (Saxon),
purported to offer the Defendants default loan services, including the opportunity to modify their
loan. During the process, the Plaintiff, by and through its agent, Saxon, told the Defendants to make
no further payments on the loan.
3. Defendants failed to make regularly scheduled payments on the mortgage and loan
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which Plaintiff contends to own, because the Defendant, Defendant, Devon A DeLoatch (Mr.
DeLoatch) lost his job as an assistant at Johnny Carrinos Italian Restaurant when the restaurant
went out of business where he made $35,000.00 per year. He diligently sought employment at the
same income level, but because of the abysmal economy, was forced to accept a job at a
significantly lower salary. After failing to make a payment on his house where he resides with his
wife, Defendant Maria DeLoatch (Mrs. DeLoatch), and his two small children, Mr. DeLoatch
immediately contacted the Plaintiff, by and through its agent, Saxon.
4. Saxon provided the Defendants with a loan modification application, which
Defendants completed and timely returned. Plaintiff, by and through its agent, Saxon, assigned the
loan modification to a loan modification consultant employed by Saxon. Defendants, by and
through, Defendant, Devon A DeLoatch, telephoned Saxon, scores of time regarding the loan
modification process. Mr. DeLoatch left messages for his assigned loan modification consultant
regarding the status of the loan modification request. Mr. DeLoatch requested also that any
telephone calls made by his loan modification consultant be made to Mr. DeLoatch cellular
telephone.
5. Notwithstanding the scores of calls made by Mr. DeLoatch, and his request to be
contacted via his cellular telephone, the Plaintiff, acting by and through its agent, Saxon Mortgage
Consultants, Inc.,and its loan modification consultant, called Mr. DeLoatch at home one day, and
because he was not there denied his loan modification for the following incredulous reason: No
response to our attempts to contact you.
6. Thereafter, Mr. DeLoatch was told that he needed to submit a second loan
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7. On the face of the mortgage attached to the Plaintiff's complaint, and appearing at the
bottom of each and every page of the mortgage, is the following printed statement:
8. Additionally, the Plaintiff failed to comply with the foreclosure prevention loan
servicing requirement imposed on Plaintiff pursuant to the National Housing Act, 12 U.S.C.
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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. Accordingly, the Plaintiff cannot legally pursue
foreclosure unless and until Plaintiff demonstrates compliance with 12 U.S.C. 1701x(c)(5).
9. 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.
11. 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.
12. 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.
13. 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.
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15. The section of the Pooling and Servicing Agreement (PSA) is a public document
o n f i l e a n d o n l i n e a t w w w . s e c i n f o . c o m ( s p e c i f i c a l l y a t :
http://www.secinfo.com/dRSm6.u27n.c.htm#4g9v), and the entire pooling and servicing agreement
is incorporated herein.
16. 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
the customary an usual standards of practice of mortgage lenders and servicers.
17. 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 fining this foreclosure action.
18. 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
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which constitutes irreparable harm to Defendants for the purpose of injunctive relief.
19. 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.
20. 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.
21. These acts were wrongful and predatory acts by the plaintiff, through its predecessor
in interest, and were intentional and deceptive.
22. There us 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 fo 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 12
U.S.C. 1701x(c)(5) or 1710(a), 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 coss 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
23. This is an action for damages in excess of $15,000.00.
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24. Defendants reassert and reallege paragraphs 2 through 22 above as if set fully herein.
25. 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).
26. Plaintiff has engaged in consumer collection conduct which amounts to a violation
of F. S. Section559.72(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.
27. Plaintiff's collection activities described herein violated F. S. Section 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.
29. 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.
30. 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.
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31. The Plaintiff if 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, service of
process 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.
32. 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.
33. Plaintiff continues to claim, attempt, and threatened 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.
34. 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 Florida Statute 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.
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I HEREBY CERTIFY that a copy of the foregoing on the ____ day of January 2009, has
been delivered by United States Mail to:
1. Jessica J. Fagen, Esquire, 208 North Laura St., Suite 900, Jacksonville FL 32202;
2. Adams Lake Owners Association, Inc., c/o Registered Agent, Wallace, L. Denise,
920 Third St., Ste. B, Neptune Beach, FL 32266;
3. Mortgage Electronic Registration Systems, Inc., as Nominee for First NLC Financial
Services, LLC, C/O Authorized Registered Agent, Electronic Data Systems
Corporation, 3300 Sw 34th Ave., Ste. 101, Ocala, FL 34474
_______________________________________
STEVEN P. COMBS
Telephone (904) 359-5505
Facsimile (904) 359-5506
Counsel for the Defendants, Jevon A. Deloatch; Maria
C. Deloatch.
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NASSAU COUNTY, FLORIDA
CASE NO.: 2008-CA-858
DIVISION: A
Plaintiff,
vs.
JOSEPH T. KING; EVA J. KING;
et al.
Defendants.
____________________________/
DEFENDANTS JOSEPH T. KING AND EVA J. KING ANSWER, AFFIRMATIVE
DEFENSES, COUNTER-CLAIMS AND DEMAND FOR JURY TRIAL
Comes now Defendants, Joseph T. King and Eva J. King, by and through undersigned
counsel, asserting their answer, affirmative defenses, counter-claims and demand for jury trial,
and in state:
ANSWER
1. Admit that this is an in rem action seeking foreclosure; denied that the Plaintiff
has stated a cause of action for foreclosure.
2. Denied.
3. Admit that a note and mortgage where executed by the Defendants. Admit that
the mortgage was recorded in the Official Records of Nassau County, Florida, at the book and
page number alleged. Admit that a copy of the mortgage is attached as an exhibit to the
complaint.
4. Denied.
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Answer, Affirmative Defenses and Counterclaims
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5. Admit.
6. Denied because all conditions precedent to declaring a default have not been met.
7. Admit that the Plaintiff has declared the full amount payable, but denied that
the Plaintiff has a right to do so.
8. Denied.
9. Denied.
12. Denied.
13. Admitted that the Plaintiff seeks to re-establish a promissory note pursuant to
Section 673.3091, but denies that the Plaintiff has stated a cause of action to re-establish a
14. Defendant re-states and incorporates answers above to all allegations plead and
incorporated by Plaintiff.
15. Denied. The Plaintiff has failed to state a cause of action to re-establish a
17. Without knowledge and, therefore, denied. However, the Defendant will attempt
to verify this information and reserves the right to amend this answer.
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AFFIRMATIVE DEFENSES
Common Factual Allegations
1. The Defendants, Joseph T. King and Eva J. Kings, (hereinafter Mr. King and Mrs.
King or Mr. and Mrs. King), purchased their home in 1999 for themselves and there three minor
children, Jonathan, Daniel and Elizabeth.
2. Mr. and Mrs. King purchased their home in 1999 for about $130,000.00. It appraised
at that time for $145,000.00. The home is currently worth about $200,000.00. The approximate
balance on the note, before foreclosure fees and costs, is about $107,000.00. The loan was made
by Southtrust Mortgage Corporation, not the Plaintiff.
3. Mrs. King is currently employed by a dialysis clinic as a medical secretary. She earns
about $150.00 a week, working 18-20 hours per week. She works very close to the childrens
school, and, when she is not working, is working in the home with her children.
4. Mr. King is employed at the St. Johns River Power Park. In 2008, Mr. and Mrs.
King began having difficulty in making their mortgage payments, when, due to the poor state of the
economy, Mr. Kings ability to work over-time was eliminated. Prior to 2008, Mr. King was
historically working 20-40 hours of overtime per biweekly pay period. That is, he would routinely
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work 50-60 hours per week to provide for his family and make his mortgage payment.
5. After Mr. Kings overtime was eliminated, Mr. and Mrs. King juggled their finances
as best they could. On September 30, 2008, Mr. and Mrs. Kings submitted an electronic funds
transfer to pay their September 2008, mortgage payment. made a payment electronically. However,
the electronic funds transfer was dishonored by Mr. and Mrs. Kings financial institution for the
want of $30.00. At that point, Mr. and Mrs. King made a payment on a their vehicle, which was
also falling behind. On or about October 15, 2008, Mr. and Mrs. King requested to catch up their
mortgage payment by making the September payment immediately, and by making the October
payment before the end of October. At that time, the Plaintiff refused such an arrangement.
6. In the face of the Plaintiffs refusal to accept a modest arrangement to bring the loan
status to under 30 days, the Defendants were left bewildered on how to proceed. In December
2009, after speaking with someone from the Jacksonville Urban League, the Kings sent in a payment
which was returned. (Mr. and Mrs. Kings later sent in another payment which was kept and placed
what the Plaintiff refers to as an escrow account. See below.)
7. On October 19, 2008, The Plaintiff, Wells Fargo Bank, NA, which, upon information
is the mere servicer of the mortgage, shortly after refusing to accept a payment and make
arrangements for accepting another payment before the end of October, sent a letter to Mr. and Mrs.
King purporting to advise them of programs available to help then early on the delinquency
process. One of these programs was a partial claim, which would have capitalized the
delinquency and made it a second lien against the home. In response to this letter, Mr. and Mrs.
King called the Plaintiff, but were merely told, in contradiction to their own correspondence, that
the Plaintiff would accept nothing less than Mr. and Mrs. King immediately making both the
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September and October payment. Mr. and Mrs. King were not offered the Partial Claim although
that program would have been perfect for them. This is especially true because Mr. and Mrs. King
had advised the Plaintiff that they had one payment ready to go.
8. On the same date as the letter advising Mr. and Mrs. King of programs purportedly
available to help them early in the delinquency process, the Plaintiff, also mailed them a letter
advising of delinquency amount and amount needed to cure default. This amount was $2,187.54
by October 31, 2008; or $3,229.59 by November 18, 2008. Amazingly enough, Mr. and Mrs. King
had offered to cure the delinquency just days prior to this letter by making an immediate payment
and then another payment before the end of October!
9. October 20, 2008 , the Plaintiff sent a letter to Mr. and Mrs. King which advised them
of home-ownership counseling with the Department of Housing and Urban Development. Mr. King
called the number on the correspondence, and was ultimately put into contact with the Jacksonville
Urban League. Mr. and Mrs. King made an with Jacksonville Urban League. However, there were
no appointments available for several weeks. When Mr. King ultimately went to the appointment
he met with a woman whose name he does not recall. She helped Mr. King make out a monthly
budget, however, she mostly just scolded him about finances.
10. On November 13, 2008, in response to Mr. and Mrs. Kings telephone calls asking
what there options were other than paying a lump sum of about $3,000.00, the Plaintiff sent a letter
thanking Mr. and Mrs. King for their interest in the Wells Fargo Borrower Counseling Program.
They were informed that they should complete an application by November 28, 2008. Rather than
just mailing the application in, Mr. and Mrs. King complete the application process telephonically
with a HUD approved financial counselor at the Family Foundation, John Doyle.
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11. On December 15, 2008, the Plaintiff sent to Mr. and Mrs. King a Notice of Possible
Relief on Your Mortgage, advising of eligible for payment for relief. Mr. and Mrs. King called and
spoke with a women by the name of Erica employed by the Plaintiff. Erica told Mr. and Mrs. King
that in order to be eligible for relief, that they would need to mail in single months mortgage
payment, which would be held in escrow. Erica advised Mr. and Mrs. King to also fax to the
Plaintiff a Financial Worksheet, a hardship letter, and proof of income for each, and proof of paying
a single months mortgage payment and associated late fee paid.
12. Plaintiff sent a letter dated January 9, 2009, but postmarked January 23, 2009, and
not delivered until January 30, 2009, to Mr. and Mrs. King. The letter purported to follow up on the
recent telephone conversation requesting information regarding eligibility be provided to the
Plaintiff on a date preceding the date on which the letter was postmarked. Mr. and Mrs. King
called Plaintiff about the letter beings mailed after the deadline contained in the letter. They were
told that they could ignore the deadline.
13. On March 5, 2009, Plaintiff finally provided an offer to mitigate. However that offer
was delivered at 5:45 p.m. by UPS Express Pak from Plaintiff. The package contained an offer
dated March 3, 2009, which required a response to be received by the Plaintiff by March 8, 2009
via a UPS Express Envelope provided by Plaintiff. Given that there is no Saturday delivery on the
pre-addressed Next Day Air envelope packaging provided by Plaintiff, Mr. and Mrs. King would
have had to have accepted the offer immediately upon receipt without any opportunity to seek legal
counsel.
14. At no point in time, did the Plaintiff offer to meet in person with Mr. and Mrs. King
to determine what could be done to rectify their mortgage arrearage.
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First Affirmative Defense
Failure to Provide Required Default Loan Servicing
15. Mr. and Mrs. King re-allege paragraphs 1 through 14 herein and incorporate them
herein by reference.
16. The 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 the Defendants, of any home ownership counseling Plaintiff offers
together with information about counseling offered by the U.S. Department of Housing and Urban
Development.
17. The Plaintiff failed to provide the Defendants with any bona fide home ownership
counseling offered by Plaintiff. Any reference to programs to help the Defendants were merely
illusory.
18. 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. Plaintiffs non-
compliance with the laws requirement 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 the
Plaintiff its ability foreclose upon the subject property. Plaintiff cannot legally pursue foreclosure
unless and until Plaintiff demonstrated compliance with 12 U.S.C. 1701x(c)(5).
19. Additionally, on the face of the mortgage attached to the Plaintiff's complaint, and
appearing at the bottom of each and every page of the mortgage, is the following printed statement:
FLORIDA-Single Family-FannieMae/Freddie Mac UNIFORM INSTRUMENT. As such,
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Plaintiff is bound by the special single family residential default loan servicing set out by Fannie
Mae and Freddie Mac (Federal National Mortgage Association and the Federal Home Loan
Mortgage Corporation) and which are easily accessible to all borrowers whose loans include the
Second Affirmative Defense
Plaintiff Failure to Comply with Applicable
Pooling and Servicing Agreement Loan Servicing Requirements
20. Upon information and belief, the subject note has been securitized and is subject to
a Pooling and Servicing Agreement.
21. Plaintiff failed to provide Defendants with legitimate and non predatory access to the
debt management and relief that must be made available to borrowers, including this Defendants,
pursuant to and in accordance with, upon information and belief, the Pooling and Servicing
Agreement, governing the securitized trust in which the subject note is pooled. 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.
4. Defendants assert, upon information and belief, that the special default loan servicing
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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.
6. Alternatively or additionally, upon information and belief, 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.
6. Upon information and belief, the 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.
7. Upon information and belief, 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:
the customary and usual standards of practice of mortgage lenders and servicers.
c. Plaintiff failed to timely extend to defendants the opportunity and failed to
timely 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.
8. Upon information and belief, 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
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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.
9. Instead, upon information and beleif, 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.
10. Upon information and belief, 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.
Third Affirmative Defense
Unclean Hands
11. The Plaintiff comes to this Court with unclean hands, for multiple reasons, including
without limitation, the following:
a. The Plaintiff, by and through its agent, Saxon Mortgage Services, Inc.
(Saxon), purported to offer the Defendants default loan services, including the opportunity to
modify their loan. During the process, the Plaintiff, by and through its agent, Saxon, told the
Defendants to make no further payments on the loan.
b. The Plaintiff, by and through its agent, Saxon, provided the Defendants with
a loan modification application, which Defendants completed and timely returned. Plaintiff, by and
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-11-
through its agent, Saxon, assigned the loan modification to a loan modification consultant employed
by Saxon. Defendants, by and through, Defendant, Devon A DeLoatch, telephoned Saxon, scores
of time regarding the loan modification process. Mr. DeLoatch left messages for his assigned loan
modification consultant regarding the status of the loan modification request. Mr. DeLoatch
requested also that any telephone calls made by his loan modification consultant be made to Mr.
DeLoatch cellular telephone.
c. Notwithstanding the scores of calls made by Mr. DeLoatch, and his request
to be contacted via his cellular telephone, the Plaintiff, acting by and through its agent, Saxon
Mortgage Consultants, Inc.,and its loan modification consultant, called Mr. DeLoacth at home one
day, and because he was not there denied his loan modification for the following incredulous reason:
No response to our attempts to contact you.
d. Thereafter, Mr. DeLoatch was told that he needed to submit a second loan
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e. The Plaintiffs conduct in delaying the loan modification process, as well as
the Defendants detrimental reliance upon the Plaintiffs agents instruction to not make any
payments while the loan modification process was pending, and then pursuing foreclosure at the
same time the Defendants that they are eligible for a loan modification constitutes unclean hands.
f. Additionally, 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.
Fourth Affirmative Defense
Failure of Good Faith and Fair Dealing:
Unfair and Unacceptable Loan Servicing
12. Plaintiff intentionally failed to act in food faith or to deal fairly with the subject
servicing as described in the foregoing Affirmative Defenses thereby denying Defendants access
to the residential mortgage servicing protocols applicable to the subject note and mortgage.
Fifth Affirmative Defense
Offer to Tender All or Part of the Amount Due Before Receipt of Notice of Acceleration
13. The Defendants offered to tender all or part of the amount due before receipt of the
notice of acceleration.
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14. The Plaintiff, acting by and through its agent, Saxon, told the Defendants not to make
any additional payments because doing would result in Saxon being unable to consider a pending
request for loan modification.
15. It is inequitable for Plaintiff engage in conduct which discourages a homeowner to
not make payments and then to use the homeowners failure to pay as a basis for foreclosure.
Sixth Affirmative Defense
Waiver
Plaintiffs to tender past due payments to the Plaintiff, the Plaintiff has waived strict compliance of
the terms of the mortgage.
Seventh Affirmative Defense
Estoppel
Plaintiffs to tender past due payments to the Plaintiff, the Plaintiff is estopped from relying on the
Plaintiffs failure to make such payments on the mortgage as a basis for the instant foreclosure.
Eighth Affirmative Defense
Absence of Acceleration Provision in Note
18. While the note provides contractual language regarding the mailing of a default
notice upon failure to pay which notice would state that the Plaintiff has the right to accelerate (see
paragraph 7(D) of the note), no where in the note is there a clear and separate provision regarding
the Plaintiffs right to accelerate the note upon failure to make regular monthly payments. As the
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original lender drafted the note, the terms of the note should be read most favorably in favor of the
Defendants. Accordingly, the note should be construed as failing to contain an acceleration
provision. Therefore, the Plaintiff is without authority to maintain the instant foreclosure action.
Ninth Affirmative Defense
Failure of Contractual Condition Precedent: No Notice of Default
19. Plaintiff failed to provide the Defendants with a Notice of Default and Intent to
Accelerate in compliance with the terms of the mortgage.
Tenth Affirmative Defense
Illegal Charges Added to Balance
20. 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, service of process fees and/or 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.
Eleventh Affirmative Defense
Plaintiff Lacks Standing
21. The Plaintiff is not the true owner of the claim sued upon, is not the real party in
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interest and is not shown to be authorized to bring this foreclosure action. Specifically, the Plaintiff
is not the party to whom the note was originally made, the Plaintiff has failed to provide by
attachment to the complaint any endorsement evidencing ownership of the note, and the Plaintiff has
failed to provide by attachment to the complaint any assignment of the mortgage. Accordingly, the
Plaintiff lacks standing to prosecute this action.
Twelfth Affirmative Defense
The Plaintiff Does Not Have the Right to Reestablish the Lost Note Because the Plaintiff
Cannot Provide Adequate Security Should Another Entity Later Present the Note
22. Section 673.3091, Florida Statutes, provides that:
The court may not enter judgment in favor of the person seeking
enforcement unless it finds that the person required to pay the
Adequate protection may be provided by any reasonable means.
23. Morgan Stanley ABS Capital I Inc. Trust 2007-HE7 is financially insolvent or at risk
of financially insolvency and is unable to adequately protect the Defendants by any reasonable
means against loss that might occur by reason of a claim by another person to enforce the
instrument, including, without limitation, by promise of indemnity. Likewise, the same is true of
Deutsche Bank National Trust Company.
24. Accordingly, the Plaintiff is not statutorily entitled to reestablish the lost mortgage
note.
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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 the subject mortgage.
3. The Plaintiff, by and through its agent, Saxon Mortgage Services, Inc. (Saxon),
purported to offer the Defendants default loan services, including the opportunity to modify their
loan. During the process, the Plaintiff, by and through its agent, Saxon, told the Defendants to make
no further payments on the loan.
3. Defendants failed to make regularly scheduled payments on the mortgage and loan
which Plaintiff contends to own, because the Defendant, Defendant, Devon A DeLoatch (Mr.
DeLoatch) lost his job as an assistant at Johnny Carrinos Italian Restaurant when the restaurant
went out of business where he made $35,000.00 per year. He diligently sought employment at the
same income level, but because of the abysmal economy, was forced to accept a job at a
significantly lower salary. After failing to make a payment on his house where he resides with his
wife, Defendant Maria DeLoatch (Mrs. DeLoatch), and his two small children, Mr. DeLoatch
immediately contacted the Plaintiff, by and through its agent, Saxon.
4. Saxon provided the Defendants with a loan modification application, which
Defendants completed and timely returned. Plaintiff, by and through its agent, Saxon, assigned the
loan modification to a loan modification consultant employed by Saxon. Defendants, by and
through, Defendant, Devon A DeLoatch, telephoned Saxon, scores of time regarding the loan
modification process. Mr. DeLoatch left messages for his assigned loan modification consultant
regarding the status of the loan modification request. Mr. DeLoatch requested also that any
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telephone calls made by his loan modification consultant be made to Mr. DeLoatch cellular
telephone.
5. Notwithstanding the scores of calls made by Mr. DeLoatch, and his request to be
contacted via his cellular telephone, the Plaintiff, acting by and through its agent, Saxon Mortgage
Consultants, Inc.,and its loan modification consultant, called Mr. DeLoatch at home one day, and
because he was not there denied his loan modification for the following incredulous reason: No
response to our attempts to contact you.
6. Thereafter, Mr. DeLoatch was told that he needed to submit a second loan
7. On the face of the mortgage attached to the Plaintiff's complaint, and appearing at the
bottom of each and every page of the mortgage, is the following printed statement:
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8. Additionally, the Plaintiff failed to comply with the foreclosure prevention loan
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
Department of Housing and Urban Development. Accordingly, the Plaintiff cannot legally pursue
foreclosure unless and until Plaintiff demonstrates compliance with 12 U.S.C. 1701x(c)(5).
9. 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.
11. 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
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condition precedent to foreclosure which denies Plaintiff's ability to carry out this foreclosure.
12. The special default loan servicing requirements contained in the subject pooling and
out in that agreement.
13. 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.
15. The section of the Pooling and Servicing Agreement (PSA) is a public document
o n f i l e a n d o n l i n e a t w w w . s e c i n f o . c o m ( s p e c i f i c a l l y a t :
http://www.secinfo.com/dRSm6.u27n.c.htm#4g9v), and the entire pooling and servicing agreement
is incorporated herein.
16. 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
the customary an usual standards of practice of mortgage lenders and servicers.
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-20-
17. 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 fining this foreclosure action.
18. 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.
19. 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.
20. 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.
22. There us 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 fo Fla. Stat. 86 declaring that the Plaintiff is legally obligated
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to provide the Defendants with access to the special troubled loan servicing prescribed by the 12
U.S.C. 1701x(c)(5) or 1710(a), 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 coss 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
23. This is an action for damages in excess of $15,000.00.
24. Defendants reassert and reallege paragraphs 2 through 22 above as if set fully herein.
25. 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).
26. Plaintiff has engaged in consumer collection conduct which amounts to a violation
of F. S. Section559.72(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.
27. Plaintiff's collection activities described herein violated F. S. Section 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.
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29. 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.
30. 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.
31. The Plaintiff if 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, service of
process 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.
32. 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.
33. Plaintiff continues to claim, attempt, and threatened 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.
34. As a result of the Plaintiff's failure to properly service this mortgage loan before filing
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this foreclosure action, Defendants have been damaged and Defendants seek to recover their actual
or statutory damages from the Plaintiff under Florida Statute 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.
I HEREBY CERTIFY that a copy of the foregoing on the ____ day of January 2009, has
1. Jessica J. Fagen, Esquire, 208 North Laura St., Suite 900, Jacksonville FL 32202;
2. Adams Lake Owners Association, Inc., c/o Registered Agent, Wallace, L. Denise,
920 Third St., Ste. B, Neptune Beach, FL 32266;
3. Mortgage Electronic Registration Systems, Inc., as Nominee for First NLC Financial
Services, LLC, C/O Authorized Registered Agent, Electronic Data Systems
Corporation, 3300 Sw 34th Ave., Ste. 101, Ocala, FL 34474
_______________________________________
STEVEN P. COMBS
Telephone (904) 359-5505
Facsimile (904) 359-5506
Counsel for the Defendants, Jevon A. Deloatch; Maria
C. Deloatch.
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-24-
All Rights Reserved
4'
CASE NO.: 16-2008-CA-016657
DIVISION: CV-D
u.s. BANKNATIONAL ASSOCIATION, AS
TRUSTEE FOR THE SPECIALTY UNDERWRITING
AND RESIDENTIAL FINANCE TRUST MORTGAGE
LOAN ASSET-BACKED- CERTIFICATES SERIES
2006-BC3
Plaintiff,
vs.
ERICA L. DAVIS; CHRISTOPHER L. DAVIS; ET AL.
Defendants.
-------------------_/
FILED
.MAY :-.4 2009
~ - - ~ .. ,.
CLE;K CIRCUIT COURT
DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT FOR FORECLOSURE; AND DEFENDANTS' MOTION TO
STRIKE PLAINTIFF'S AFFIDAVIT OF INDEBTEDNESS
COMES NOW, Defendants, Erica L. Davis and Christopher L. Davis (hereinafter
"Defendants"), by and through undersigned counsel, and pursuant to Rule 1.510 and 1.530, Florida
Rules of Civil Procedure, and files Defendants' Memorandum in Opposition to Plaintiff's Motion
for Summary Judgment for Foreclosure; and Defendants' Motion to Plaintiff's Affidavit of
Indebtedness, and in support thereof states:
1. The Court should deny the Plaintiffs Motion for Summary Judgment because:
a. Plaintiffs Affidavit of Indebtedness, relied upon by Plaintiff in seeking
summaryjudgment is fatally defective for lack ofpersonal knowledge and cannot provide any basis
whatsoever for summary judgment;
b. Even in the event that Plaintiffs Affidavit of Indebtedness is not fatally
defective, the Plaintiffstill is not entitled to summaryjudgment in its favor inasmuch as the Plaintiff
has failed to provide any proof that it owned the note on the date that this action was filed;
c. Even in the event that Plaintiffs Affidavit of Indebtedness is not fatally
has failed to provide any proof that it provided notice of acceleration to the Defendants, per the
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Memorandum in Opposition to
Summary Judgment
"
express language ofthe mortgage and note, which proof is necessary to establish that all conditions
precedent to this action have been met;
d. Finally, Plaintiffs Motion for Summary Judgment should be denied because
the Plaintiff has failed to offer any evidence in support of its count for Reestablishment of Lost
PromissoryNote, and has, therefore, failed to establish any right whatsoever to enforce the lost note.
Plaintiffs Affidavit of Indebtedness is Fatally Defective and Should
Be Stricken. and the Plaintiffs Motion Should. Therefore. Be Denied
2. Plaintiffs Affidavit of Indebtedness, relied upon by Plaintiff in seeking summary
judgment is fatally defective for lack of personal knowledge and cannot provide any basis
whatsoever for summary judgment. Specifically, the Affiant, Traci Carr, does not properly aver
personal knowledge ofthe business records relied upon for the making ofthe affidavit. Given the
lack of an appropriate foundation for the consideration of the Plaintiffs business records, the
affidavit should be stricken. This is ofparamount importance, given the regularity with which the
same borrower has been sued by multiple Plaintiffs on the ~ note and mortgage. For a
prime example o/this in Duval County, see the Complaints pending in case numbers 08-CA-008261
CV-G and 09-CA-005217 CV-G, o/which the Defendant prays the Court will take judicial notice.
3. Rule 1.51O(e), FloridaRules ofCivil Procedure, provides the minimumrequirements
for affidavits in support of or opposition to a summary judgment motion, as follows:
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent
to testify to the matters stated therein.
4. Florida case law is clear that an affidavit in support of a summaryjudgment motion
which is based upon the business records of an entity, must not only be based on the personal
knowledge ofthe affiant ofsaid business records, but must also showthat such records are correct
andcomplete andare kept under the supervision andcontrol ofthe affiant. Thompson v. Citizens
National Bank of Leesburg Florida, 433 So.2d 32, 33 (Fla. 4
th
DCA 1983) .
5. The Court in the Thompson case, addressing a situation where the affiant was not an
employee or officer ofthe actual plaintiffin the case, but rather ofthe plaintiffs predecessor, stated:
We conclude that summary judgment should not have been entered.
The affidavit ... does not comply with rule 1.51O(e) which requires
that a supporting affidavit be made on personal knowledge. An
affidavit based on information and belief rather than personal
knowledge is not admissible into evidence and should not be
considered by the trial court on amotion for summaryjudgment. See,
e.g., Campbellv. Salman, 384 So. 2d1331 (Fla. 3dDCA 1980); Silber
Page 2 of 10
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v. Campus Sweater & Sportswear, 313 So.2d 409 (Fla. 1st DCA
1975); Garwood v. Equitable Life Assurance Society of US., 299
So.2d 163 (Fla. 3d DCA 1974). The amant did not (nor could he)
state that he had personal k n o w l e d ~ e of the matters contained in
fplaintifrs[ business records. nor that the bank records were
complete or correct and were kept under his supervision and
control. See 90.803(6), Fla. Stat. (1981).
(Emphasis added).
6. In the instant case, the Affidavit of Indebtedness filed by the Plaintiff in support
of its summary judgment motion, executed by Traci Carr on or about January 21, 2009, fails
to comply with Rule 1.501(e), Florida Rules of Civil Procedure, for the following reasons:
a. Ms. Carr purports that she is foreclosure specialist of Wilshire Credit
i Corporation (hereinafter"Wilshire Credit"). See Affidavit of Indebtedness, ~ 1;
I
b. The Plaintiffin the instant case is not Wilshire Credit Corporation. Instead,
ithe Plaintiff is Us. Bank National Association, as Trustee for the Specialty Underwriting and
I Residential Finance Trust Mortgage LoanAsset-Backed- Certificates Series2006(hereinafter"us.
!BanK');
c. The Affidavit of Indebtedness is based on the business records of Plaintiff,
i Us. Bank, not affiant's employer, Wilshire Credit. See Affidavit of Indebtedness, ~ 2; and
d. The Affiant does not aver that business records relied upon were kept under
jher supervision or control. See Affidavit ofIndebtedness, ~ ~ 1-9.
I 7. Accordingly, because the Affiant is not an employee of the Plaintiff, U.S. Bank,
!but instead is an employee of Wilshire Credit, and because she fails to aver that the business
irecords relied upon are complete or correct and were kept under her supervision or control,
iher assertion that she has personal knowledge is without any basis and therefore ineffectual.
!See Thompson. supra ("The affiant did not (nor could he) state that he had personal knowledge of
Ithe matters contained in [plaintiffs] business records, nor that the bank records were complete or
I
icorrect and were kept under his supervision and control."); See also See Avatar Props.. Inc. v.
iBoney, 494 So.2d 289 (Fla. 2d DCA 1986)(affidavit legally insufficient where affiant clearly
iincapable of having personal knowledge offacts at issue in case); Hoyt v. St. Lucie County. Bd. Of
IComm'rs, 705 So.2d 119 (Fla. 4
th
DCA 1998)(affidavit legally insufficient where it fails to reflect
!facts demonstrating how affiant would possess personal knowledge of the matters at issue in the
Icase); Carter v. Cessna Fin. Com., 498 So.2d 1319 (Fla. 4
th
DCA 1986)(affidavit legally insufficient
I
Iwhere affiant failed to set out a factual basis to support claim of personal knowledge of matter at
lissue in case and failed to make assertion based on personal knowledge.).
8. In other words, just as in the Thompson case, in the instant case, not withstanding
Page 3 of 10
All Rights Reserved
Ms.Carr's assertion to the contrary, "[t]he affidavit ... does not comply with rule 1.510(e) which
requires that a supporting affidavit be made on personal knowledge" because, just as in the
Thompson case, "the affiant did not ... state that" the records referenced in the affidavit were
"complete or correct and were kept under her] supervision and control."
9. Accordingly, the Affidavit ofIndebtedness should be stricken, and, having failed
to offer any valid affidavit in support of its motion for summary judgment, the Plaintiffs
motion should be denied. See Holl v. Talcott, 191 So. 2d 40 (Fla. 1966) ("The rule simply is that
the burden to prove the non-existence of genuine triable issues is on the moving party, and the
burden of proving the existence of such issues is not shifted to the opposing party until the movant
has successfully met his burden."). Further, as was explained by the Court in Besco USAInt'l Com.
v. Home Sav. of Am. FSB, 675 So. 2d 687, 688 (Fla. 5
th
DCA 1996):
Amovant for summaryjudgment has agreater burden than a plaintiff
at trial because the movant must prove a negative -- the nonexistence
of a genuine issue of a material fact. Holl v. Talcott, 191 So. 2d 40
(Fl. 1966), cert. denied, 232 So. 2d 181 (Fla. 1969). If the slightest
doubt exists as to the presence of an issue of fact, then summary
judgment cannot be granted. Fletcher Co. v. Melroe Mfg. Co., 261
So. 2d 191,193 (Fla. 1st DCA 1972); Carbajo v. City ofHialeah, 514
So. 2d 425 (Fla. 3d DCA 1987). [Courts] must view every possible
inference in favor of a party against whom a summary judgment has
been rendered. Holl v. Talcott. supra.
(Emphasis added).
Plaintiffs Motion for Summary Judgment Should Be Denied Because the
Plaintiff Has Failed to Establish Ownership of the Note on the Date of Filing
10. It is elemental that in order for a Plaintiff to prevail on a Motion for Summary
Judgment it is incumbent upon the Plaintiff to demonstrate that it owned the mortgage note on the
date the action was filed. See Contractors Unlimited. Inc. v. Nortax, 833 So.2d 286 (Fla. 5th DCA
2002)(it is necessary for Plaintiffto own and hold cause ofaction on date suit is filed); Marianna v.
Maund, 62 So. 670 (Fla. 1911)(to same effect); and Voges v. Ward, 123 So. 785 (Fla. 1929)(to same
effect); See also In re Foreclosure Cases, 521 F.Supp. 2d (S.D. Ohio 2007); Deutsche Bank Nat'l
Trust Co. v. Steele. 2008 WL 111227 (S.D. Ohio) January 8, 2008; Wells Fargo Bank. N.A. v.
Jordan, March 12, 2009, Court of Appeals of Ohio 8
th
App. Dist., a copy of which is attached as
Exhibit "A."
11. The Affidavit of Indebtedness (and other affidavits in the Court file) fail to
provide any evidence whatsoever that the Plaintiff, on the date that this action was filed,
owned the note and mortgage. This is of special concern in the case, as there appears to be
no assignment ofthe note or mortgage in the public records of Duval County, ofwhich fact the
Page 4 of 10
All Rights Reserved
Defendants requests the Court take judicial notice. Goodman v. Aldrich & Ramsey Enter., 804
So.2d544 (Fla. 2d DCA2002) Gudicial notice taken in summaryjudgment proceeding in foreclosure
case); Grant v Thornton, 749 So.2d 529 (Fla. 2d DCA 1999)Gudicial notice of Manatee County
BuildingCodes taken in summaryjudgment proceeding).! See also Freimuthv. State, 272 So.2d 473
(Fla. 1972)(courts may take judicial notice of official records of administrative agencies); Florida
Accountants Association v. Dandelake, 98 So.2d 323 (Fla. 1957) ("This court takes judicial notice
ofthe public records ofthis State...."); State ex ReI. v. Lee, 147 Fla. 37 (1941)("This Court will take
judicial notice of the public records of commissions appearing on file in the office of Secretary of
State."); Section 90.202, Florida Statues; see also Exhibit "B" (computer print out of search results
for any recorded assignment related to the Defendants).
12. Having failed to offer any evidence that it owned the note and mortgage on the
date of the filing of this action,
2
and the Court being advised by the taking of judicial notice
that no assignment of mortgage to Plaintiff exist in the public records of Duval County, the
Plaintifrs motion should be denied. See Holl v. Talcott, 191 So. 2d 40 (Fla. 1966) ("The rule
simply is that the burden to prove the non-existence ofgenuine triable issues is on the moving party,
and the burden of proving the existence of such issues is not shifted to the opposing party until the
movant has successfully met his burden."). Further, as was explained by the Court in Besco USA
Int'l Com. v. Home Say. of Am. FSB, 675 So. 2d 687, 688 (Fla. 5
th
DCA 1996):
Amovant for summaryjudgment has agreater burden than aplaintiff
at trial because the movant must prove a negative -- the nonexistence
(FI. 1966), cert. denied, 232 So. 2d 181 (Fla. 1969). If the slightest
So. 2d 191, 193 (Fla. 1st DCA 1972); Carbajo v. City ofHialeah, 514
1 As to this point, Plaintiff's counsel argues that pursuant to Chemical Residential Mtg. v. Rector, 742
So.2d 300 (Fla. 1
5t
DCA 1998), that it is not incumbent upon Plaintiff to attach or otherwise prove up any assignment
of the mortgage. However, it is clear from the opinion in Rector that the holding was a result of the complaint
having been admitted by virtue of Rector's default. See also Emerald Plaza West v. Salter, 466 So.2d 1129 (Fla.. 3d
DCA 1985)("Agreeing with appellant that the trial court erred in granting foreclosure of a mortgage without
requiring either production of the original promissory note and assignment of mortgage or reestablishment of those
documents, Telephone Utility Terminal Co. v. EMC Industries. Inc., 404 So.2d 183 (Fla. 5th DCA 1981);
90.953(1), Fla. Stat. (1983), we reverse the Final Judgment of Foreclosure.") In the instant case, the parties were not
defaulted and no such admission has occurred. Additionally, in the instant case, it is clear that the instant mortgage
has never, in fact, been assigned to Plaintiff.
2At best for Plaintiff, where an assignment post-dates the filing of a complaint, a question arises as to
whether the Plaintiff secured its interest in the mortgage before or after the filing of the foreclosure action and the
Court should undertake an evidentiary hearing to determine when the Plaintiff obtained its interest in the mortgage.
See WM Specialty Mortgage. LLC. V. Salomon. 874 So. 2d 680 (Fla. 4
th
2004). At worst, the Plaintiff should not be
allowed to pursue the foreclosure under such assignment, and must file a new foreclosure case. See Jeff-Ray Corp.
v. Jacobson, 566 So. 2d 885, 886 (Fla. 4th DCA 1990) (holding that the assignee of a mortgage could not maintain
the mortgage foreclosure action because the assignment was dated four months after the action was filed; if the
plaintiff wished to proceed on the assignment, it must file a new complaint); see also State Street Bank and Trust
Company v. Lord, 851 So. 2d 790 (Fla. 4
th
DCA 2003)(mortgagee could not pursue foreclosure in the absence of
proof that either the mortgagee, or its assignor, ever had possession of the missing promissory note).
Page 5 of 10
All Rights Reserved
the filing of this action, to wit: the giving of notice of acceleration to the Defendants.
3
See Holl
v. Talcott, 191 So. 2d 40 (Fla. 1966) ("The rule simply is that the burden to prove the non-existence
of genuine triable issues is on the moving party, and the burden of proving the existence of such
issues is not shifted to the opposing party until the movant has successfully met his burden.").
Further, as was explained by the Court in Besco USA Int'l Corn. v. Home Sav. ofAm. FSB, 675 So.
2d 687, 688 (Fla. 5
th
DCA 1996):
Amovant for summaryjudgment has agreater burden than aplaintiff
at trial because the movant must prove anegative -- the nonexistence
(Fl. 1966), cert. denied, 232 So. 2d 181 (Fla. 1969). If the slightest
So. 2d 191, 193 (Fla. 1st DCA 1972); Carbajo v. City ofHialeah, 514
inference in favor of a party against whom a summaryjudgment has
(Emphasis added).
Plaintiffs Motion for Summary Judl:ment Should Be Denied
Because the Plaintiff Has Failed to Offer Any Evidence in
Support of its Count for Reestablishment of Lost Promissory Note
16. InParagraph 7ofthe PlaintiffsMotion for SummaryJudgment, Plaintiffstates: "The
original promissory note has been lost and is not in the custody or control ofPlaintiff. The note was
continuously in possession and control ofPlaintiffs assignors and predecessors from the date ofits
execution until the loss of the note and has not been paid or otherwise, satisfied, assigned or
transferred."
17. Section 673.3091, Florida Statutes, provides, in pertinent part, as follows:
(1) Aperson not in possession of an instrument is entitled to enforce
the instrument of:
(a) The person seeking to enforce the instrument was
entitled to enforce the instrument when loss of possession occurred,
or has directly or indirectly acquired ownership of the instrument
from a person who was entitled to enforce the instrument when loss
of possession occurred;
3The Affidavit of Indebtedness does provide in paragraph 6 that the Defendants were "notified ofthe
default." This averment, however, is ineffectual to provide an evidentiary basis for the giving of notice of
acceleration.
Page 7 of 10
All Rights Reserved
(b) The loss of possession was not the result ofa transfer
by the person or a lawful seizure; and
(c) The person cannot reasonably obtainpossessionofthe
instrument because the instrument was destroyed, its whereabouts
cannot be determined or it is in the wrongful possession of an
unknown person or a person that cannot be found or is not amenable
to service of process.
(2) ... The Court may not enter judgment in favor of the person
seeking enforcement unless it finds that the person required to paythe
18. In the instant case, the Plaintiffhas failed to offer any evidence by way ofaffidavit
regarding the loss of the note. That is, there is no averments by affidavit as to any ofthe elements
required to meet the burden to enforce a lost note as required by Section 673.3091, including:
a. That the Plaintiff or one its assignees was entitled to enforce the note when
it was lost. 673.3091(1)(a).
b.
1673.3091(l)(b).
c.
j673.3091(l)(c).
That the loss of the note was not the result of transfer or lawful seizure.
That the Plaintiff cannot reasonably obtain possession of the note.
d. That the Plaintiff can offer adequate protection should another person make
ia claim on the note against the Defendants. 673.3091(2).
I
19. Shockingly, other than an averment in its Affidavit of Indebtedness, there is no
!proof whatsoever that Plaintiff actually owns the subject note. The face of the note clearly
'reflects that the note was made in favor ofFMF Capital LLC and there appears to be no indorsement
Ion the copy of the note attached to the Complaint.
20. Accordingly, having failed to make any averments by affidavit as would be
Irequired by 673.3091, the Plaintiff has failed to carry its initial burden for the granting of
Isummary judgment in its favor and its Motion for Summary Judgment should, therefore, be
:denied. See Holl v. Talcott. supra. This is of especial concern, for the reason stated above that
!borrowers are being sued at an alarming rate by multiple Plaintiffs on the same note and
imortgage. For a prime example of this in Duval County, see the Complaints pending in case
I
!numbers 08-CA-008261 CV-G and 09-CA-005217 CV-G, ofwhich the Defendant prays the Court
jwil! take judicial notice.
Page 8 of 10
All Rights Reserved
Conclusion
21. The Court should deny the Plaintiffs Motion for Summary Judgment because:
a. PlaintiffsAffidavit ofIndebtedness should be strickenas it is fatally defective
for lack of personal knowledge, and, in the absence of an affidavit in support if Plaintiffs motion
for summary judgment, the motion should be denied;
b. Even in the event that Plaintiffs Affidavit of Indebtedness is not fatally
has failed to provide any proof that it owned the note on the date that this action was filed. This is
ofspecial importance in this case as the Public Records of Duval County contain no assignment of
i the subject mortgage to Plaintiff;
I c. Additionally, even inthe event that Plaintiffs Affidavit ofIndebtedness is not
'i fatally defective, the Plaintiff still is not entitled to summaryjudgment in its favor inasmuch as the
!Plaintiffhas failed to provide any proof that it provided notice of acceleration to the Defendants as
':required by the express language ofthe mortgage and note, which proofis necessary to establish that
all conditions precedent to this action have been met, the same being a necessary element to this
foreclosure action; and
d. The Plaintiff is not entitled to summary judgment in its favor because it has
ifailed to offer any proof by affidavit, or otherwise, that it has meet the requirements of Section
::673.3091, Florida Statutes, for enforcing a lost note.
WHEREFORE, the Defendant prays that this Honorable Court would: (l) strike the
!Plaintiffs' Affidavit ifIndebtedness; and (2) deny the Plaintiffs motion for summary judgment.
STEVE COMffi, PROFESSIONAL ASSOCIATION
~
3217 Atlantic Blvd.
Telephone (904) 359-5505
Facsimile (904) 359-5506
Counsel for the Defendants, Erica L. Davis and
Christopher Davis
Page 9 of 10
All Rights Reserved
I HEREBY CERTIFY that a copy of the foregoing on this 4
th
day of May, 2009, has been
delivered by United States Mail and/or Facsimile Delivery to the parties listed on the attached
service list (by the method thereon so indicated).
~ ~ ?
omey
SERVICE LIST
1. Michael D. Wild, Esquire
Counsel for U.S. Bank National Association, as Trustee for the Specialty Underwriting and
Residential Finance Trust Mortgage Loan Asset-Backed- Certificates Series 2006
Post Office Box 11438
Fort Lauderdale, FL 33339-1438
(By United States Mail and Facsimile Transmission to (954) 564-9252)
2. Mortgage Electronic Registration Systems, Inc., as Nominee for FMF Capital LLC
3330 S.W. 34
th
Avenue, Ste. 101
Ocala, FL 34474
(By United States Mail)
3. Robert L. Tankel, Esquire
Counsel for Hawkins Cove Owners Association, Inc.
1022 Main Street, Ste. D
Dunedin, FL 34698
(By United States Mail)
Page 10 of 10
All Rights Reserved
(Cite as Wells Fargo Bank, N.A. v. Jordan, 2009-0hio-1092.)
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 91675
WELLS FARGO BANK, N.A.
PLAINTIFF-APPELLEE
vs.
OTIES JORDAN, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-631753
BEFORE: Celebrezze, J., Rocco, P.J., and Kilbane, J.
RELEASED:
JOURNALIZED:
March 12, 2009
EXHIBIT IIAII
All Rights Reserved
FOR APPELLANTS
Oties Jordan (pro se)
Sylvia Jordan (pro se)
960 East 78th Street
Cleveland, Ohio 44103
ATTORNEY FOR APPELLEE
Benjamin D. Carnahan
Shapiro, Van Ess, Phillips & Barragate, L.L.P.
1500 West Third Street
Suite 455
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court's decision. See App.R. 22(8) and
26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment
and order of the court pursuant to App.R. 22(C) unless a motion for reconsideration
with supporting brief, per App.R. 26(A), is filed within ten (10) days of the
announcement of the court's decision. The time period for review by the Supreme
Court of Ohio shall begin to run upon the journalization of this court's announcement
of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. II, Section 2(A)(1).
All Rights Reserved
FRANK D. CELEBREZZE, JR., J.:
{ ~ 1 } Appellants, DUes Jordan, Sylvia Jordan, and Stay Focused, L.L.C., a
company for which Oties Jordan is the statutory agent (collectively referred to as
"Jordan"), bring this appeal challenging the trial court's entry of summary
judgment in favor of appellee, Wells Fargo Bank ("WFB").
{ ~ 2 } On January 15, 2009, WFB filed a motion to dismiss for lack of a
final appealable order. After a thorough review of the record, and for the
reasons set forth below, we deny WFB's motion to dismiss and hold that the trial
court erred by granting summaryjudgment.
{ ~ 3 } On January 3, 2003, Jordan executed a note and mortgage ("the
Mortgage") with Delta Funding Corporation for property located on Wade Park
Avenue in Cleveland, Ohio ("the Property"). On or about March 1, 2007, Jordan
defaulted on the loan. On August 3, 2007, WFB filed a complaint against Jordan
for money judgment, foreclosure, and relief. Attached to the complaint was a
copy of the note and mortgage naming Delta Funding Corporation as the holder
of the Mortgage. On November 8, 2007, Jordan filed his answer and
counterclaim against WFB for fraud, negligence, and violations of federal and
state creditor lending laws.
{ ~ 4 } On February 26,2008, WFB filed a motion for summaryjudgment
and a motion to dismiss Jordan's counterclaim. Despite extensions of time
All Rights Reserved
granted by the magistrate assigned to hear the case, Jordan did not file a timely
opposition to WFB's motions. On April 7, 2008, the magistrate issued the
following order: "As Plaintiffs motion to dismiss counterclaim presents matters
outside the pleadings, said motion is deemed part of plaintiffs motion for
summaryjudgment. Therefore, inasmuch as reasonable minds could conclude
from the evidence submitted only that plaintiff is entitled to judgment and a
decree of foreclosure, plaintiffs motion for summaryjudgment is granted. ***."
Jordan filed objections to the magistrate's order.
{ ~ 5 } In its May 21, 2008 judgment entry, the trial court adopted the
magistrate's decision in an entry that read: "The objection to the Magistrate's
Decision is overruled. The Court adopts the Magistrate's Decision attached
hereto and incorporated herein. Judgment for the substitute plaintiff against
Oties Jordan, aka Oties Jordan, Jr., in the sum of $72,690.93 with interest
thereon at the rate of9.24 [percent] per annum from March 1, 2007. Decree of
foreclosure for substitute plaintiff. Pursuant to Civ.R. 54(B) the court finds no
just cause for delay."
Final Appealable Order
{ ~ 6 } In its motion to dismiss, WFB argues that the trial court's entry is
not a final appealable order because it does not set forth its own judgment. We
disagree.
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Pursuant to Section 3(B)(2), Article IVof the Ohio Constitution, this
court's appellate jurisdiction is limited to the review of final orders of lower
courts. A trial court's order is final and appealable only if it meets the
requirements of R.C. 2505.02 and, if applicable, Civ.R. 54(B). In re Adoption of
MP., Franklin App. No. 07AP-278, 2007-0hio-5660, citing Denham v. City
ofNew Carlisle, 86 Ohio St.3d 594,596, 1999-0hio-128, 716 N.E.2d 184.
R.C. 2505.02(B) defines a final order, in pertinent part, as follows:
"An order is a final order that may be reviewed, affirmed, modified, or reversed,
with or without retrial, when it is one of the following: (1) An order that affects
a substantial right in an action that in effect determines the action and prevents
ajudgment[.]"
"For an order to determine the action and prevent ajudgment for the
party appealing, it must dispose of the whole merits of the cause or some
separate and distinct branch thereof and leave nothing for the determination of
the court." Natl. City Commer. Capital Corp. v. AAAA at Your Serv., Inc., 114
Ohio St,3d 82, 2007-0hio-2942, 868 N.E.2d 663.
WFB takes issue here with whether the trial court's entry adopting
the magistrate's decision is a final appealable order. "Civ.R. 53(E)(5) contains
the folloWing instruction: The court shall enter its ownjudgment on the issues
submitted for action and report by the referee. Incorporating the referee's report
without separately stating its own judgment does not constitute a final
All Rights Reserved
appealable order." In reMichael(l991), 71 Ohio App.3d 727,595 N.E.2d 397. A
trial court order stating merely that it is adopting a magistrate's decision is not a
final appealable order. Harkai v. Scherba Indus. (2000), 136 Ohio App.3d 211,
736 N.E.2d 101. To constitute a final appealable order, a court's entry reflecting
action on a magistrate's decision must be a separate and distinct instrument
from the decision and must grant relief on the issues originally submitted to the
court. In re Jesmone Dortch (1999), 135 Ohio App.3d 430, 734 N.E.2d 434.
{ ~ l l } U[T]he trial court must "''''* enter its own independent judgment disposing
of the matters at issue between the parties, such that the parties need not resort to
any other document to ascertain the extent to which their rights and obligations have
been determined. In other words, the judgment entry must be worded in such a
manner that the parties can readily determine what is necessary to comply with the
order of the court." Bums v. Morgan, 165 Ohio App.3d 694, 2006-0hio-1213, 847
N.E.2d 1288, quoting Yahraus v. City of Circleville, 4th Dist. No. 00CA04, 2000-
Ohio-2019, quoting Lavelle v. Cox (Mar. 15, 1991), 11 th Dist. No. 90-T-4396.
{ ~ 1 2 } We find that the trial court's entry in this case is afinal appealable order.
In light of the fact that the magistrate incorporated WFB's motion to dismiss
Jordan's counterclaim into its summary judgment motion, the judgment entry sets
forth its judgment and a judgment amount in favor of WFB. Furthermore, the trial
court order included the requisite Civ.R. 54(8) language, which grants this court
jurisdiction to hear the appeal. WFB's motion to dismiss is denied.
All Rights Reserved
Review and Analysis
{ ~ 1 3 } We next address the merits of Jordan's appeal, in which he raises three
assignments of error for our review. We find Jordan's first assignment of error
dispositive of the case.
{ ~ 1 4 } "I. The trial court erred in granting summary judgment to the substitute
party plaintiff as genuine issues of material fact remained outstanding to be
determined. "
{ ~ 1 5 } In his first assignment of error, Jordan argues that summary judgment is
improper because there was no evidence presented that WFB owned the Mortgage.
Although we disagree with Jordan's claim that summary judgment was improper due
to alack of ownership evidence, we find that WFB did not have standing when it filed
the complaint; therefore, the trial court erred by granting summary jUdgment in favor
of WFB and should have dismissed this case without prejudice.
{ ~ 1 6 } "Civ.R. 56(C) specifically provides that before summary judgment may
be granted, it must be determined that: (1) No genuine issue as to any material fact
remains to be litigated; (2) the moving party is entitled to judgment as a matter of
law; and (3) it appears from the evidence that reasonable minds can come to but
one conclusion, and viewing such evidence most strongly in favor of the party
against whom the motion for summary judgment is made, that conclusion is adverse
to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364
N.E.2d 267.
All Rights Reserved
{ ~ 1 7 } It is well established that the party seeking summary judgment bears the
burden of demonstrating that no issues of material fact exist for trial. Celotex Corp.
v. Catrett (1986),477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265; Mitseff v.
Wheeler(1988), 38 Ohio St.3d 112,115,526 N.E.2d 798. Doubts must be resolved
in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 1992-
Ohio-95, 604 N.E.2d 138.
{ ~ I S } In Dresherv. Burt, 75 Ohio St.3d 280, 1996-0hio-107,662 N.E.2d 264,
the Ohio Supreme Court clarified the summary judgment standard as applied in
Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095. Under
Dresher, "the moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record which
demonstrate the absence of a genuine issue of fact or material element of the
nonmoving party's claim." Id. at 296. (Emphasis in original.) The nonmoving party
has a reciprocal burden of specificity and cannot rest on mere allegations or denials
in the pleadings. Id. at 293. The nonmoving party must set forth "specific facts" by
the means listed in Civ.R. 56(C) showing that a genuine issue for trial exists. Id.
{ ~ 1 9 } This court reviews the lower court's granting of summary judgment de
novo. Brown v. County Commrs. (1993), 87 Ohio App.3d 704, 622 N. E.2d 1153. An
appellate court reviewing the grant of summary judgment must followthe standards
set forth in Civ.R. 56(C). IThe reviewing court evaluates the record *** in a light
most favorable to the nonmoving party ***. [T]he motion must be overruled if
reasonable minds could find for the party opposing the motion." Saunders v. McFaul
All Rights Reserved
(1990),71 Ohio App.3d 46,50,593 N.E.2d 24; Link v. Leadworks Corp. (1992), 79
Ohio App.3d 735,741,607 N.E.2d 1140.
{ ~ 2 0 } Civ.R. 17(A) states that 'le]very action shall be prosecuted in the name
of the real party in interest. *** No action shall be dismissed on the ground that it is
not prosecuted in the name of the real party in interest until a reasonable time has
been allowed after objection for ratification of commencement of the action by, or
joinder or substitution of, the real party in interest. Such ratification, joinder, or
substitution shall have the same effect as if the action had been commenced in the
name of the real party in interest."
{ ~ 2 1 } "A party lacks standing to invoke the jurisdiction of a court unless he
has, in an individual or a representative capacity, some real interest in the subject
matter of the action. State ex reI. Dallman v. Court of Common Pleas (1973), 35
Ohio St.2d 176, 298 N.E.2d 515, syllabus. The Eleventh Appellate District has held
that 'Civ.R. 17 is not applicable when the plaintiff is not the proper party to bring the
case and, thus, does not have standing to do so. A person lacking any right or
interest to protect may not invoke the jurisdiction of a court.' Northland Ins. Co. v.
Illuminating Co., 11th Dist. Nos. 2002-A-0058 and 2002-A-0066, 2004-0hio-1529, at
1117 (internal quotations and citations omitted). The court also noted that 'Civ.R.
17(A) was not applicable unless the plaintiff had standing to invoke the jurisdiction of
the court in the first place, either in an individual or representative capacity, with
some real interest in the subject matter. Civ.R. 17 only applies if the action is
commenced by one who is sui juris or the proper party to bring the action.' Travelers
All Rights Reserved
Indemn. Co. v. R. L. Smith Co. (Apr. 13,2001), 11th Dist. No. 2000-L-014." Wells
Fargo Bank, N.A. v. Byrd, 178 Ohio App.3d 285, 2008-0hio-4603, 897 N.E.2d 722.
{ ~ 2 2 } The holder of rights or interest in property is a necessary party to a
foreclosure action. See Hembree v. Mid-America Fed. Sav. &Loan Assn. (1989), 64
Ohio App.3d 144,152,580 N.E.2d 1103.
{ ~ 2 3 } In Deutsche Bank National Trust Co. v. Steele (6th Cir., Jan. 8, 2008),
Case No. 2:07-CV-886. the court held: "While a court has no duty to search the
record and may properly limit its review of an unopposed motion for summary
judgment to the facts relied on by defendant, Guarino v. Brookfield Township
Trustees. 980 F.2d 399, 404-05 and 407 (6th Cir. 1992). it cannot enter judgment if
the moving party is not entitled to judgment as a matter of law. Rule 56(c),
Fed.R.Civ.P. Several judges have held that a complaint must be dismissed if the
plaintiff cannot prove that it owned the note and mortgage on the date the complaint
was filed. E.g., In re Foreclosure Cases, (N.D. Ohio 2007), Case Nos. 1:07CV2282,
et seq., (Boyko, J.); In re Foreclosure Cases (S.D. Ohio 2007),521 F. Supp.2d 650,
(Rose, J.). Thus, if plaintiff has offered no evidence that it owned the note and
mortgage when the complaint was filed, it would not be entitled to judgment as a
matter of law."
{ ~ 2 4 } In Wells Fargo Bank, N.A. v. Byrd. supra, where Wells Fargo filed suit
on its own behalf but acquired the mortgage from the original lender after filing, the
court held that, "in aforeclosure action, abank that was not the mortgagee when suit
All Rights Reserved
was filed cannot cure its lack of standing by subsequently obtaining an interest in the
mortgage."
{ ~ 2 5 } Our facts are exactly the same here. Delta Funding Corporation owned
the Mortgage for the Property on August 3,2007, the date WFB filed its complaint
against Jordan. On September 24, 2007, WFB filed a Notice of Filing of Final
Judicial Report. Attached to the Notice were a Final Judicial Report and an
Assignment of Mortgage, indicating the Mortgage had been assigned to WFB on
August 22,2007, nearly three weeks after it filed its complaint. In short, WFB was
not the real party in interest on the date it filed its complaint seeking foreclosure
against Jordan.
{ ~ 2 6 } Thus, WFB lacked standing to bring a foreclosure action against
Jordan. As such, the trial court erred in granting summary judgment in favor ofWFB
because WFB was not entitled to judgment as a matter of law. We sustain Jordan's
first assignment of error, reverse summary judgment, and order the trial court to
dismiss the complaint without prejudice.
{ ~ 2 7 } Having sustained Jordan's first assignment of error, we find his
remaining assignments of error are moot.
1
{ ~ 2 8 } This cause is reversed and remanded to the lower court for further
proceedings consistent with this opinion.
It is ordered that appellants recover of said appellee costs herein taxed.
1Appellant's remaining Assignments of Error are included in the Appendix to this
Opinion.
All Rights Reserved
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
KENNETH A. ROCCO. P.J., and
MARY EILEEN KILBANE. J., CONCUR
APPENDIX
Appellant's remaining Assignments of Error:
II. That the trial court erred in granting the motion of Wells Fargo Bank to
substitute party plaintiff filed 11/16/07 on 11/21/07 without hearing, substantial
basis therefore, or even providing the defendant with an opportunity to receive,
review or reply to the motion.
III. That the trial court erred in determining it had jurisdiction to proceed in
this foreclosure contrary to the Federal Court determinations and the standard
within the Court of Common Pleas Cuyahoga County.
All Rights Reserved
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focuments from '1/1/1988' to '5/3/2009'
D="Deleted Name"
Showing 1 - 2 of 2
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1
Party
First
Record Book
lnstrument#
Row * Consideration Name Crossparty Type Book Page Comments
Type
Name
Date Type
....
DAVIS
ERICA
MORTGAGE
L196 HAWKINS
1
$49,400.00 From
L
ELEC REG SYS 3/22/2006 MTG OR 13148 336
COVE UN6
2006100767
INC
ETAL
DAVIS
ERICA
MORTGAGE
L196 HAWKINS
2 $197,600.00 From ELEC REG SYS 3/22/2006 MTG OR 13148 317 2006100766
L
INC
COVE UN6
ETAL
1
COMPOSITE EXHIBIT "B"
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!
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!Search Results
!Searched for the name 'DAVIS, CHRISTOPHER L' in MTG, SAT, ASSIGN
Showing 1 2 of 2
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ype documents from '1/1/1988' to '5/3/2009'
!U="Unreleased" D="Deleted Name"
1
Party
First
Record Book Instrument#
Row * Consideration
Type
Name Crossparty
Date
Type
Type
Book Page Comments
....
Name
DAVIS
MORTGAGE
1 $49,400.00 From CHRISTOPHER ELEC REG SYS 3/22/2006 MTG OR 13148 336
L196 HAWKINS
2006100767
COVE UN6
L ETAL
INC
DAVIS
MORTGAGE
L196 HAWKINS
2006100766
COVE UN6
L ETAL
INC
1
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for the name 'DAVIS, CHRISTOPHER' in MTG, SAT, ASSIGN
Showing 1 - 15 of 54
(0.016 seconds)
tltpe documents from '1/1/1988' to '5/3/2009'
L="Unreleased" D="Deleted Name"
234
Party
First
* Consideration
Type
Name Crossparty
Date
Type
Type
Book Page Comments
..
Name
1 $0.00 From
DAVIS JPMORGAN
12/12/2005 ASSIGN OR 12941 2294 NONE-NONE 2005452168
CHRISTOPHER
CHASE BK
2 $0.00 From
DAVIS HUERTA
12/21/1994 SAT OR 8000 1602
OR 7978 217
94210970
CHRISTOPHER
AURORA OR 7978/217
DAVIS
ClTIFINANCIAL PT L14 Bl
3 $10,814.14 From CHRISTOPHER EQUITY SERV 6/25/2007 MTG OR 140S3 807 SOUTHSIDE 2007207672
A ETAL
INC EST UN21
DAVIS
L14 Bl
4 $27,600.00 From CHRISTOPHER
CHASE BK USA 12/15/2006 MTG OR 13702 1215 SOUTHSIDE 2006431744
A ETAL
EST UN21
DAVIS
MORTGAGE L1481
5 $95,630.00 From CHRISTOPHER ELEC REG 5YS 4/15/2005 MTG OR 12417 71 SOUTHSIDE 2005130481
A ETAL
INC EST UN21
DAVIS
6 $0.00 From CHRISTOPHER
WELLS FARGO
2/20/2007 ASSIGN OR 13822 125
NONE OR
2007059244
BK 10436/1077
D
DAVIS
L16B FORT
CAROLINE LK
WASHINGTON
4/9/2002 ASSIGN OR 10436 1084 UN5 OR 10436 2002099627
MUTL BK
D
1077 OR
10436/1077
DAVIS
L16B FT
8 $92,547.00 From CHRISTOPHER WATSON MTG 4/9/2002 MTG OR 10436 1077 CAROLINE LK 2002099626
D
UN5
DAVIS
L60 B4
INTERCOASTAL
12/12/2005 MTG OR 12941 2274 SHEFFIELD VIL 2005452167
MTG ASSOC INC
ETAL
UNl
DAVIS
MORTGAGE L18 BlO
10 $110,129.00 From CHRISTOPHER ELEC REG SYS 1/7/2004 MTG OR 11565 143 JULINGTON 2004005211
ETAL
INC HILLS UN2
DAVIS
El/2 L4 B3
BANKERS HM
8/29/2003 MTG OR 11326 1066 SOUTHSIDE 2003287029
MTGINC
G
EST UNl
DAVIS
12
$180,000.00 From CHRISTOPHER
FIRST UN MTG
5/11/2001 MTG OR 9986 1663
L14 WINDSOR
2001112816
ETAL PARKE UN2
J U
DAVIS
13 $144,281.11 From CHRISTOPHER WACHOVIA BK 10/14/2004 MTG OR 12096 1913
PT L 2 3 B8S
2004331073
RIVSD
K
DAVIS
14 $25,000.00 From CHRISTOPHER WACHOVIA BK 10/14/2004 MTG OR 12096 1901
PT L2 3 B85
2004331071
RIVSD
K
DAVIS
OMNI COMM C
9/9/2002 MTG OR 10653 349
PT L25 El/2 L3
2002252398
U B85 RIVERSIDE
K
234
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buval County Released through Thursday, Apr 30, 2009 Released through CFN 2009103... Page 1of 1
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for the name 'DAVIS, CHRISTOPHER' in MTG, SAT, ASSIGN
type documents from '1/1/1988' to '5/3/2009'
(0.016 seconds)
D="Deleted Name"
1234
Party
First
Row
*
Consideration Name Crossparty Type Book Page Comments
Type Date Type
..
Name
DAVIS
WELLS FARGO
1/28/2002 MTG OR 10331 1683
PTL2 El/2 L3
2002026876
HM MTG INC 885 RIVERSIDE
K
DAVIS
OMNI COMM C
1/25/2000 MTG OR 9525 118
PT L2 NEW SO
2000016846
U PT RIVERSIDE
K
DAVIS
NORWEST MTG
12/29/1999 ASSIGN OR 9504 1368
PT L2 L3 885
99312262
INC RIVERSIDE
K
DAVIS
MAIN LN MTG 12/29/1999 MTG OR 9504 1361
PT L2 El/2 L3
99312261
885 RIVERSIDE
K
DAVIS
FIRST MTG
20 $0.00 From CHRISTOPHER NETWORK INC 9/7/1999 MTG OR 9405 685
PT L3 821
99222680
SPRINGFIELD
K
TA
DAVIS
TRANSLAND FIN
4/14/1999 ASSIGN OR 9258 2016
PT L3 821
99091304
SERV INC SPRINGFIELD
K
DAVIS
PRINCIPAL
12/7/1998 ASSIGN OR 9152 1134
PT L3 821
98296132
RESID MTG INC SPRINGFIELD
K
DAVIS
PARADIGM MTG
4/7/1997 MTG OR 8587 28
PT L3 821
97072712
ASSOC INC SPRINGFIELD
K
DAVIS
MORTGAGE
L196 HAWKINS
2006100767
COVE UN6
LETAL
INC
DAVIS
MORTGAGE
2S $197,600.00 From CHRISTOPHER ELEC REG SYS 3/22/2006 MTG OR 13148 317
L196 HAWKINS
2006100766
COVE UN6
LETAL
INC
DAVIS
L60 B4
ARGENT MTG
12/18/2003 MTG OR 11535 2478 SHEFFIELD VIL 2003410614
LLC
METAL
UNl
DAVIS
L164 MEADOW
CHASE MNHTN
5/14/2002 ASSIGN OR 10486 1638
POINTE UNl OR
2002135683
MTG 1814 1832 -OR
P 1814/1832
DAVIS
MORTGAGE
28 $0.00 From CHRISTOPHER ELEC REG SYS 3/29/2001 ASSIGN OR 9930 2043
OR 98141301
2001070970
OR 9814/1301
P
INC
DAVIS
29 $25,000,00 From CHRISTOPHER
lPMORGAN
10/29/2007 MTG OR 14247 441
L164 MEADOW
2007340436
CHASE BK POINTE UNl
PETAL
DAVIS
PARAMOUNT
4/9/2002 MTG OR 10434 1814
L'64 MEADOW
2002098425
FIN INC POINTE UNl
PETAL
1234
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$earched for the name 'DAVIS, CHRISTOPHER' in MTG, SAT, ASSIGN
(0.016 seconds)
~ p e documents from '1/1/1988' to '5/3/2009'
U="Unreleased" D="Deleted Name"
~ 2 3 4
Party
First
Record Book
Instrument#
~ o w * Consideration
Type
Name Crossparty
Date
Type
Type
Book Page Comments
..
Name
DAVIS
CORNERSTONE
12/1/2000 MTG OR 9814 1301
L164 MEADOW
2000276499
HM MTG POINTE UN1
PETAL
DAVIS
32 $0.00 From CHRISTOPHER FIRST FIN BK 8/6/2001 ASSIGN OR 10098 878
OR 9491 1022
2001194191
R
OR 9491/1022
DAVIS
FIDELITY NATL
2/3/2000 ASSIGN OR 9S35 277 2000026069
BK
R
DAVIS
RESOURCE
34 $0.00 From
CHRISTOPHER
BANCSHARES 11/29/1994 ASSIGN OR 7984 1559
OR 7748 229
94193830
R
MTG
OR 7748/229
DAVIS
MORTGAGE L10 B1
35 $105,606.00 From CHRISTOPHER ELEC REG 5Y5 12/9/2008 MTG OR 14719 2203 CHAMPION 2008307101
R ETAL
INC FOREST UN2
DAVIS
36
$69,000.00 From CHRISTOPHER AMSOUTH BK 1/28/2004 MTG OR 11605 284
L33
2004029412
HEAVENSIDE
R ETAL
DAVIS
37 $175,200,00 From CHRISTOPHER FIDELITY BK TA 11/7/2003 MTG OR 11463 2248
L33
2003366818
HEAVENSIDE
R ETAL
DAVIS
38 $17,000,00 From CHRISTOPHER AMSOUTH BK 7/13/2000 MTG OR 9680 243
L33
2000157147
HEAVENSIDE
R ETAL
DAVIS
FIDELITY NATL
12/13/1999 MTG OR 9491 1022
L33
99301016
MTG HEAVENSIDE
R ETAL
DAVIS
L8 LAKE
40 $0,00 From CHRISTOPHER
FLORIDA TELCO
2/15/1995 MTG OR 8034 1875 MANDARIN 95030340
CU
RETAL
UN13
DAVIS
41 $0,00 From CHRISTOPHER
COMMUNITY
12/30/1993 MTG OR 7748 229 77480229
MTG
R ETAL
DAVIS
CITlFINANCIAL
42 $37,571,80 From CHRISTOPHER EQUITY SERV 7/20/2006 MTG OR 13403 1408
PT GOV L1 SEC
2006252536
14 1N 27
5
INC
DAVIS
FIRST UN NATL
9/30/1998 MTG OR 9085 6
PT GOV L1 SEC
98238047
BK 14127
S
DAVIS
44 $0,00 From
CHRISTOPHER
FEDERAL NATL
3/10/1997 ASSIGN OR 8563 1904
OR 7629 1509
97049339
MTG ASSN OR 7629/1509
S
DAVIS
145
$0,00 From CHRISTOPHER
FEDERAL NATL
9/12/1995 ASSIGN OR 8173 82
PT GOV L1 SEC
95178400
MTG ASSN 14 1N 27
S
234
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.-
,
$earch Results
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pe documents from '1/1/1988' to '5/3/2009'
="Unreleased" D="Deleted Name"
I
~ 2 3 4
(0.016 seconds)
Party
First
~ o w * Consideration
Type
Name Crossparty
Date
Type
Type
Book Page Comments
....
Name
DAVIS
APX MTG SERV
12/29/1993 ASSIGN OR 7743 2258 77432258
INC
S
DAVIS
INDEPENDENT
12/29/1993 ASSIGN OR 7743 2256 77432256
BKR BK
I S
DAVIS
APX MTG SERV
8/13/1993 ASSIGN OR 763S 2263 76352263
INC
S
DAVIS
INDEPENDENT
8/4/1993 ASSIGN OR 7629 1512 76291512
BKR BK
S
DAVIS
JACKSONVILLE
50
$0.00 From CHRISTOPHER FIREMENS CR 8/4/1993 MTG OR 7629 1506 76291506
S
UN
DAVIS
WELLS FARGO
1/10/2004 MTG OR 11572 1355
PT GOV Ll SEC
2004009328
HM MTG INC 14 IN 27
SETAL
DAVIS
TRAVELERS BK
8/30/2000 MTG OR 9727 901
PT GOV Ll SEC
2000199690
TR FSB 14127
SETAL
DAVIS
53 $0.00 From
CHRISTOPHER
CHASE MNHTN
8/7/2004 ASSIGN OR 11976 1689
L6 Bl
2004256497
MTG MONTEREY UNI
W
DAVIS
54 $148,087.00 From CHRISTOPHER WATSON MTG 8/7/2004 MTG OR 11976 1671
L6 Bl
2004256496
MONTEREY UNI
W ETAL
~ 2 3 4
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All Rights Reserved
inference in favor of a party against whom a summary judgment has
(Emphasis added).
Plaintiffs Motion for Summary Judgment Should Be Denied
Because the Plaintiff Has Failed to Provide Any Evidence of Notice of
Acceleration to Defendants. Which Is a Condition Precedent to Foreclosure
13. Providing notice of acceleration is a condition precedent to institution of a
foreclosure action. See FLORIDAMORTGAGEFORECLOSUREPRACTICEGUIDE(2005), Hon. Charles
Holcomb, Revere Legal Publishers, at page 24 ("Ifthe note or mortgage contains a provision which
requires any type ofnotice prior to default and acceleration, the notice should be given prior to filing
the action or the action could be dismissed for failure to meet a condition precedent"), citing F.A.
Chastain Construction Inc. v. Pratt, 146 So.2d 91O)(Fla. 3d DCA 1962); Rashid v. Newberry Federal
S & LAss'n, 502 So.2d 1316 (Fla. 3d DCA 1987), appeal after remand, 526 So.2d 772 (Fla. 3d
DCA 1988); Maniscalco v. Hollywood Fed. S& LAss'n, 397 So.2d 453 (Fla. 4
th
DCA 1981). See
also MERS v. Badra, 991 So.2d 1037 (Fla. 4th DCA 2008).
14. The mortgage in the instant case specifically requires the providing of notice of
acceleration. Specifically, paragraph 22 of the mortgage provides:
NON UNIFORM COVENANTS. Borrower and Lender further
covenant and agree as follows:
22. Acceleration; Remedies. Lender shall give notice to Borrower
prior to acceleration following Borrower's breach ofany covenant or
agreement in this Security Instrument .... The notice shall specify: (a)
the default: (b) the action required to cure the default; (c) a date, not
less than 30 days from the date the notice is given to Borrower, by
which the default must be cured; and (d) that failure to cure the
default on or before the date specified in the notice may result in
acceleration of the sums secured by this Security Instrument,
foreclosure by judicial proceeding and sale of the Property. The
notice shall further inform Borrower of the right to reinstate after
acceleration and the right to assert in the foreclosure proceeding the
non-existence of a default or any other defense of Borrower to
acceleration and foreclosure. If the default is not cured on or before
the date specified in the notice, Lender at its option may require
immediate payment in full of all sums secured by this Security
Instrument without further demand and may foreclose this Security
Instrument by judicial proceeding....
15. The Affidavit of Indebtedness (and other affidavits in the Court file) fail to
provide any evidence whatsoever that the Plaintiff meet the necessary condition precedent to
Page 6 of 10
All Rights Reserved
JUDICIAL CIRCUIT IN AND FOR CLAY
COUNTY, FLORIDA
CASE NO.: 08-2569-CA
DIVISION: B
HSBC BANK USA, NATIONAL
ASSOCIATION, AS TRUSTEE UNDER
THE POOLING AND SERVICING
AGREEMENT DATED AS OF
DECEMBER 1, 2005, FREEMONT
HOME LOAN TRUST 2005-E
Plaintiff,
vs.
GREGORY T. RAMSEY; JULIA
G. RAMSEY; et al.
Defendant.
____________________________/
DEFENDANTS MOTION TO COMPEL
COMES NOW the Defendants, Gregory T. Ramsey and Julia G. Ramsey, by and through
their undersigned counsel pursuant to Rule 1.380, and files this Motion to Compel the Plaintiff to
produce documents in response to Defendants First Request for Production to Plaintiff and as
grounds would state:
1. On November 12, 2008, the Plaintiff instituted the instant action seeking to foreclose
upon the homestead property of the Defendants.
2. On December 11, 2008, pursuant to Rule 1.350, Florida Rules of Civil Procedure,
the Defendants requested the Plaintiff to produce various documents seeking to discover admissible
evidence regarding the Plaintiffs standing to bring the instant foreclosure actions.
3. To date, Plaintiffs counsel has failed to file any objections to such discovery and all
All Rights Reserved
Motion to Compel
Page 2 of 2
objections to such discovery should be deemed waived.
4. The Plaintiff should be compelled to produce the documents sought regarding its
standing to bring this action.
5. The Defendants, pursuant to Administrative Order 88-2, attempted to resolve this
matter with Plaintiffs counsel prior to filing this motion; however, the parties were unable to resolve
this matter. A copy of that correspondence is attached hereto as Exhibit A.
6. The Defendants have incurred additional attorneys fees related to this motion.
Plaintiff should be required to pay and/or contribute to the Defendants attorneys fees and costs
related to this motion in accordance with the applicable rules and applicable case law.
WHEREFORE the Defendants request this Honorable Court enter an order granting the
instant motion compelling Plaintiff to produce the discovery sought related to its standing to bring
this action, and require the Plaintiff to pay the Defendants fees and costs for bringing this motion
and any other relief deemed just and proper.
I HEREBY CERTIFY that a copy of the foregoing on the ___ day of June, 2009, has been
delivered by United States Mail to Suzanne H. Wong, Esquire, Law Offices of David J. Stern, P.A.,
900 South Pine Island Rd., Ste. 400, Plantation, FL 33324-3920.
RESPECTFULLY SUBMITTED,
_______________________________________
STEVEN P. COMBS
3217 Atlantic Blvd.
Jacksonville, FL 32207
Telephone (904) 359-5505
Facsimile (904) 359-5506
Counsel for the Defendants, Gregory T. Ramsey and
Julia G. Ramsey
All Rights Reserved
\ IN THE CIRCUIT COURT, FOURTH
BANK OF AMERICA, NATL ASSOC. AS CASE NO.: 2009-310-CA
SUCCESSOR BY MERGER TO LASALLE DIVISION: B
BANK NATL ASSOC., AS TRUSTEE FOR
Plaintiff(s),
vs.
ROBERT BERNARD, et al.,
Defendant(s).

DEFENDANT ROBERT BERNARDS: (1) MOTION TO VACATE ORDER DENYING
MOTION TO DISMISS; (2) MEMORANDUM OF LAW IN REPLY TO PLAINTIFFS
RESPONSE TO MOTION TO DISMISS; (3) MOTION TO STRIKE RESPONSE TO
MOTION TO DISMISS; AND (4) MOTION FOR ATTORNEYS FEES AND COSTS
The Defendant, Robert Bernard (the Defendant or Mr. Bernard), by and through
undersigned counsel, and pursuant to Rules 1.130, 1.140, and 1.540, Florida Rules of Civil
Procedure, as well as any other applicable rules of procedure and Florida case law, and files this
Motion for the Court to vacate the entry of its prior Order Denying Motion to Dismiss Filed by
Defendant(s) Robert Bernard, entered by the Court on or about April 8, 2009, but not docketed by
the clerk until April 9, 2009 (the Order), his Memorandum of Law in reply to the Plaintiffs
Response to Defendant, Robert Bernards Motion to Dismiss, which was filed with the Court on
or about April 7, 2009 (the Plaintiffs Response or Response to Motion to Dismiss), Motion to
Strike Plaintiffs Response to Motion to Dismiss and for Attorneys Fees and Costs, and states:
Factual and Procedure Background
1. On or about March 5, 2009, the Defendant served his Motion to Dismiss, or, in the
Alternative, Motion for More Definite Statement (the Motion to Dismiss).
2. On or about April 7, 2009, the Plaintiff filed its Response to Motion to Dismiss.
Apparently said Response was also served via U.S. Mail on the undersigned, although it should be
noted that the Response does not contain a proper certificate of service, inasmuch as it states that
a copy was furnished by U.S. Mail, but it fails to state to whom the copy was furnished.
3. In any event, the Response, and the Order (which was at that time a proposed Order)
were evidently delivered to the Court via some method which allowed the Court to receive the
Response and Order on April 7 or April 8 (which method must have been via facsimile
th th
All Rights Reserved
Motion for Sanctions #1
Bank of America, et al., Plaintiff(s) v. Robert Bernard, et al., Defendant(s)
Defendants Motion to Vacate, Etc.
Page 2 of 12
transmission or e-mail transmission, inasmuch as Plaintiffs counsels office is in Tampa, Florida,
and if Plaintiffs counsel had mailed the Response and Order to the Court it would not have arrived
by April 7 or 8 ).
th th
4. On or about April 8, 2009, the Court singed the Order and the Court was docked by
the Clerk of Court at 9:35 a.m. on April 9 .
th
5. On or about April 10, 2009, the undersigned counsel for the Defendant received a
packet from the Plaintiffs counsel containing the Plaintiffs Response to Motion to Dismiss, along
with a separate envelope with a conformed copy of the entered Order (which envelope had clearly
been provided to the Court by Plaintiffs counsel, inasmuch as it contained Plaintiffs counsels
return address).
6. Undersigned counsel NEVER received either the Response to Motion to Dismiss, or
the proposed Order, prior to the entry by the Court of the Order, and only received the Response and
the already entered Order on the same date, April 10, 2009, after the Order had already been entered.
One can imagine undersigned counsels surprise on April 10 , upon receiving the Response to
th
Motion to Dismiss and the already entered Order, denying his clients Motion to Dismiss, when he
had been totally unaware that a response had been filed or that a proposed Order had been submitted
to the Court.

7. Clearly, undersigned counsel was NOT given an opportunity to reply to the Response
to Motion to Dismiss, or the opportunity to comment on or object to the Order prior to its entry.
8. Further, the foregoing clearly shows that the Plaintiffs counsel directed an improper
ex parte communication to the Court (of which the Court was likely unaware).
9. Moreover, Plaintiffs counsels conduct in forwarding the Response to Motion to
Dismiss and the proposed Order to the Court without simultaneously providing it to undersigned,
violates local Administrative Order 98-19, and the Guidelines for Professional Conduct of the Trial
Lawyers Section of the Florida Bar, which have been adopted by this Circuit (the Professional
Guidelines), and which are quoted more fully below.
10. In response to the receipt of the Response to Motion to Dismiss, and the already
entered Order denying Mr. Bernards Motion to Dismiss, undersigned counsel corresponded with
counsel for the Plaintiff, giving counsel for the Plaintiff the benefit of the doubt as to all of the
foregoing, and asking him to consent to the Order being vacated and the scheduling of a hearing on
the Motion to Dismiss. A copy of undersigneds April 15, 2009, letter to Plaintiffs counsel is
attached hereto and incorporated herein as Exhibit A, which letter stated, inter alia:
I was a bit surprised last Friday to receive on the same day your
clients Response to Defendants Motion to Dismiss and an Order
signed by Judge Skinner Denying Defendants Motion to Dismiss.
Evidently, your firm sent a proposed order with or without a cover
All Rights Reserved
Page 3 of 12
letter to Judge Skinner which I never received and to which I never
had the opportunity to respond. . . .
In any event, I understand that large foreclosure plaintiff firms tend
to act as a machine which can be difficult to control. I am hopeful
that you would not intend to communicate on such an ex parte basis
with a Judge intentionally. I would ask that you agree to set aside the
Courts Order Denying the Motion to Dismiss and cooperate in the
scheduling of hearing on the motion and your response thereto. If
you did intentionally provide your proposed order to the Judge
without copying me, please let me know so I can file the appropriate
motion.
I look forward to hearing from you at your soonest possible
convenience. You may call me any time today on my cellular
telephone at 904-349-3005. I want to believe that what happened
in this case was an accident. But if I do not hear from you, I will
proceed with the understanding that you intentionally communicated
with the Court in an ex parte fashion and I will file a motion to set
aside the Order and file a motion seeking sanctions for the same.
11. As of the date hereof, undersigned has heard nothing from Plaintiffs counsel in
response to the foregoing letter, and, thus, this motion was necessitated.
Motion to Vacate
12. Although the error may be created by the sharp practice of counsel, Florida law is
clear that it is error for the Court to enter an Order prepared by one party and forwarded to the Court
by that same party, without prior notice to the other side, and without providing the other side an
opportunity to comment on the proposed Order and/or provide his/her own proposed order. This
is especially true when the proposed Order was unsolicited by the Court, and was prepared by one
side without any direction from the Court as to the Courts findings and/or ruling.
13. In Siegel v. Boca Chase Property Owners Assoc., 904 So.2d 557 (Fla. 4 DCA 2005)
th
the Court addressed a similar situation, as follows:
In this appeal, Doreen Siegel challenges a final order of foreclosure
. . . We reverse because the trial court erred in signing a proposed
final judgment submitted by Boca Chase, which was not
requested by the trial court and signed only three days after Boca
Chases simultaneous certificate of service of the proposed final
judgment to both the trial court and Siegel, giving Siegel virtually
no opportunity to file a meaningful response. See Perlow v. Berg-
Perlow, 875 So.2d 383, 390 (Fla. 2004); Ross v. Botha, 867 So.2d
All Rights Reserved
Page 4 of 12
567 (Fla 4 DCA 2004).
th
Siegel, 904 So.2d 557 (emphasis added).
14. In the instant case this is exactly what occurred, to wit: Plaintiffs counsel prepared
an unsolicited proposed Order denying the Defendants Motion to Dismiss; Plaintiffs counsel
delivered the unsolicited proposed Order to the Court (and presumably a courtesy copy of Plaintiffs
Response to Motion to Dismiss) WITHOUT delivering a copy of either to counsel for the Defendant
by a method which would ensure the receipt of same at approximately the same time as the Court;
the proposed Order was entered either the same day it was received by the Court, or the next day;
and the Defendants counsel was NOT provided with a copy of either the Response to Motion to
Dismiss or the proposed Order until AFTER the proposed Order was already an actual Order of the
Court, a fate acompli, if you will.
15. Accordingly, the Seigel case, along with the Perlow, case, cited by the Court in
Seigel, both require that the Order be vacated. Seigel, 904 So.2d 557; Perlow, 875 So.2d at 390
(Florida Supreme Court held that it was error for the Trial Court to accept verbatim a proposed
judgment submitted by one party without an opportunity for comments or objections by the other
party).
16. Moreover, the facts of the instant case are even worse than those of the Siegel case,
inasmuch as the Plaintiffs counsels submission of the proposed Order to the Court was not even
copied to undersigned counsel, as it was in the Siegel case (which failure is a violation of the
Professionalism Guidelines, quoted more fully above, which guidelines have been adopted by this
Circuit).
17. More specifically, the Professional Guidelines provide, inter alia:
J. EX PARTE COMMUNICATIONS WITH THE COURT AND
OTHERS.
1. A lawyer should avoid ex parte communication on the
substance of a pending case with a judge before whom such case
is pending.
. . .
3. Attorneys should notify opposing counsel of all oral or written
communications with the court or other tribunal, except those
involving only scheduling matters. . . . Copies of any submissions
to the court (such as correspondence, memoranda of law, case
law, etc.) should simultaneously be provided to opposing counsel
by substantially the same method of delivery by which they are
provided to the court. For example, if a memorandum of law is
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Page 5 of 12
hand-delivered to the court, at the same time a copy should be hand
delivered or faxed to opposing counsel. If asked by the court to
prepare an order, counsel should furnish a copy of the order, and
any transmitted letter, to opposing counsel at the time the
material is submitted to the court.
(Emphasis in bold and underlining added). See Local Administrative Rule 98-10, which adopts the
Guidelines and requires all attorneys practicing in this Circuit to be familiar with them and follow
them.
18. Thus, the Professionalism Guidelines also require that the Order be vacated.
19. Further, in Florida Department of Revenue v. Thurmond, 721 So. 2d 827 (Fla. 3d
DCA 1998), the Court reversed an order dismissing a case, where prior notice thereof was not given,
explaining: This court has repeatedly held that a judgment entered without notice to a party is void
ab initio and that the passage of time cannot make valid that which has always been void. Id.,
citing, Metropolitan Dade County v. Curry, 632 So. 2d 667, 668 (Fla. 3d DCA 1994); Cam-La, Inc.
v. Fixel, 632 So. 2d 1067, 1068 (Fla. 3d DCA 1994); Shields v. Flinn, 528 So. 2d 967, 968 (Fla. 3d
DCA 1988); Falkner v. Amerifirst Fed. Savs. and Loan Ass'n, 489 So. 2d 758, 759 (Fla. 3d DCA
1986); Ramagli Realty Co. v. Craver, 121 So. 2d 648, 654 (Fla. 1960).
20. The case law is also clear that the foregoing principle applies equally to orders, as
well as judgments. See Thurmond, 721 So.2d 827 (order dismissing case entered without notice
vacated as being void); Curry, 632 So.2d at 668 (order for return of personal property which was
entered without notice held to be void).
21. Based on all of the foregoing, it is clear that the Order should be immediately
vacated, and the Court should schedule a hearing on the Motion to Dismiss, so as to afford BOTH
parties an opportunity to be heard as to the merits thereof.
Memorandum of Law in Reply to Response to Motion to Dismiss
Four Corners Rule
beyond the four corners of the Complaint.
on a motion to dismiss considered matters outside of the four corners of the Complaint, stating:
. . . [T]he trial court erred in ruling on the motion to dismiss by
making factual findings beyond the four corners of the forfeiture
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Page 6 of 12
corners" of the complaint. Id. The value of Bowers' vehicle is not
(Fla. 2d DCA 1998), "Although these facts may ultimately prove
a motion for summary judgment."
Plaintiff as to why the Motion to Dismiss should be denied went outside the four corners of the
Complaint.
25. The first argument asserted by the Plaintiff which goes outside the four corners is
Response to Motion to Dismiss, which was missing from its Complaint, and no portion of which was
quoted in its Complaint, that the portion of the Motion to Dismiss directed to the Plaintiffs failure
26. First, the argument clearly goes outside the four corners of the Complaint. That
is, since the Mortgage Note is not attached to the Complaint, considering the Mortgage Note in
ruling on the Motion to Dismiss is in error. Bowers, 987 So.2d 148 (emphasis added).
that if the cause of action is based upon a written documents, the document itself must be attached
to the Complaint, or sufficient portions thereof must be quoted in the Complaint. More specifically,
the pleading. . . .
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Page 7 of 12
underlining added).
28. Moreover, the case law is clear that a Complaint which fails to attache or quote from
30. Just as in the Safeco case, the Defendants Motion to Dismiss in the instant case is
attach the Mortgage Note (which Mortgage Note the Plaintiff clearly had, inasmuch as the Plaintiff
31. Further, the Plaintiffs argument that attaching the Mortgage Note to its Response
to Motion to Dismiss cures the defect, ignores the case law which provides that the attachment of
the missing document to some other document in the Court file is not sufficient to cure such a
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Page 8 of 12
defect, as well as the case law which provides that if the provisions of an attached document
contradict the allegations of the pleading that the Complaint fails to state a cause of action. Hughes
v. Home Savings of America, 675 So.2d 649 (Fla. 2d DCA 1996); Hunt Ridge at Tall Pines, Inc.
v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000); Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d
490, 494 (Fla. 3rd DCA 1994).
32. More specifically, in Hughes, 675 So.2d 649, the Plaintiff therein convinced the Trial
exhibits.
Response to Motion to Dismiss does not breathe life into the Complaint herein.
34. Further, the Defendant is entitled to an opportunity to carefully review the Mortgage
the plain meaning of the exhibits control and may be the basis for a motion to dismiss."); Ginsberg,
645 So.2d at 494 (Fla. 3rd DCA 1994) (where exhibits contradict allegations of complaint, the plain
35. Accordingly, attaching the Mortgage Note to the Response to Motion to Dismiss does
dismissal (assuming that the Mortgage Note does not contradict any of the allegations contained in
36. Finally, the Plaintiff attempts to convince the court that the note need not be attached
v. Mid-Century Ins. Co., 398 So.2d 974 (Fla. 1 DCA 1981); and Helton v. Gunderson, 802 So.2d
st
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Page 9 of 12
37. Specifically, in the Joymer case the Court never discussed whether a copy of the
note needed to be attached to the complaint. Instead, what the Court therein actually stated is:
any entity ever had possession of the original loan documents or that
NLI knew the time and manner of their loss. In response, NLI sought
the complaint with prejudice, thereby precluding NLI from taking
any further action in this case. NLI appeals this order.
1989); Pastore-Borroto Development, Inc. v. Marevista Apartments,
(1999).
Tex. Bus. & Comm. Code 3-309), aff'd 212 F.3d 595 (5th Cir.
of the note or that it was entitled to enforce the note when it was lost,
previously granted, it is an abuse of discretion to dismiss a complaint
Kovach v. McLellan, 564 So. 2d 274, 276 (Fla. 5th DCA 1990); See
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Page 10 of 12
assignable right of enforcement, the trial court erred in dismissing the
38. Likewise, Amiker v. Mid-Century Ins. Co., 398 So.2d 974 (Fla. 1st DCA 1981), dealt
We further note that Rule 1.130(a) does not require attachment of the
of the policy through discovery, they may be able to procure
sufficient information about the policy's contents to adequately allege
the material provisions in an amended complaint
This is not equivalent to the proposition put forth by the Plaintiff that the mortgage note need not
be attached where, as in the instant case, Count I which sets forth the cause of action for foreclosure
contains not even the scantest of details regarding the notes material provision.
975-76 (Fla. 1st DCA 1981).
40. Thus, it is not accurate for the Plaintiff to state that its Count for Foreclosure should
Argument that Mortgage Note was Endorsed in Blank
Goes Beyond Four Corners of the Complaint
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Page 11 of 12
41. In paragraph 7 of Response to Motion to Dismiss, the Plaintiff states: In addition,
the Mortgage Note has been endorsed in blank. These facts make Plaintiff the proper holder and
give it the right to enforce the Mortgage Note and Mortgage.
42. Amazingly, there is no allegation whatsoever in the Complaint that the Mortgage
Note was endorsed in blank, and that this makes the Plaintiff the proper holder and allows the
Plaintiff to enforce the Mortgage Note. Indeed, the Plaintiff asserts in the existing Complaint that
it is not in possession of the original Mortgage Note, and the Complaint contains a lost note count,
but in the Response to Motion to Dismiss the Plaintiff now asserts that it is in possession of the
original note and will be dismissing the lost note count.
43. Not only is the foregoing argument clearly outside the four corners of the
Complaint, but the Plaintiff has not filed the original note with the Court, nor has the Plaintiff
dismissed Count II, the lost note count.
44. Accordingly, requiring the Defendant to answer the Complaint as it stands is in
error, and will not only provide no opportunity for the Defendant to test the sufficiency of the
allegations of the Complaint vis-a-vis any contradictory allegations contained in the Mortgage Note,
but will require the Defendant to answer the lost note count, which the Plaintiff states will be
dismissed, but which, as of today, still stands.
Motion to Strike Response to Motion to Dismiss and
Motion for Attorneys Fees and Costs
45. The Response to Motion to Dismiss should be stricken, and not even considered by
the Court inasmuch as the Motion does not contain a proper certificate of service, as required by
Rule 1.080(f), Florida Rules of Civil Procedure.
46. Additionally, the Response to Motion to Dismiss should be stricken due to the
Plaintiffs counsels conduct in forwarding an unsolicited proposed Order (as well as presumably
a courtesy copy of the Response) to the Court without simultaneously providing a copy thereof to
the undersigned by a method which would ensure that the undersigned would receive same at the
same time as the Court. Not only did the Plaintiffs counsels conduct in this regard violate the
Professional Guidelines with respect to presenting proposed orders to the Court and the ex parte
communication provisions of said Guidelines (which are quoted move fully above), but said conduct
resulted in the undersigned having no opportunity whatsoever to comment on the proposed Order,
or even know about the submission of the proposed Order until the Order was an actual Order, and
a fate acompli.
47. Finally, the Response should be stricken due to the Plaintiffs counsels
representation to the Court as to the legal authority cited therein, which representations amount to
misleading the tribunal regarding the law on the issues herein.
48. The Defendant has hired undersigned counsel to represent him in this action and
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Page 12 of 12
agreed to reasonable pay fees and costs associated therewith. But for the Plaintiffs counsels
conduct, as set froth herein, the Defendant would not have had to incur the fees and costs to prepare
this motion and reply. Accordingly, the Court should require the Plaintiff to pay and/or contribute
to the fees and costs incurred by the Defendant in responding to and defending against the Plaintiffs
counsels conduct herein.
WHEREFORE, the Defendant, Robert Bernard, prays this Honorable Court vacate the Order
Denying Defendants Motion to Dismiss, to strike the Plaintiffs Response to Plaintiffs Motion to
Dismiss, and to grant the Plaintiff reasonable fees and costs in this action.
_______________________________________
STEVEN P. COMBS
Telephone (904) 359-5505
Facsimile (904) 359-5506
th
delivered by United States Mail to Scott Griffith, Esquire, Florida Default Law Group, Post Office
Box 25018, Tampa, Florida 33622-5018.
______________________________________
Attorney
All Rights Reserved
The certificate of service of the same was dated June 9, 2009, but the postmark was June
1
11, 2009. See Exhibit B. Although undersigned filed a change of address and mailed the same
to Plaintiffs counsel on May 31, 2009, Plaintiffs counsel mailed such response to the
undersigned at a prior address, causing the same to be forwarded and not received by the
undersigned until June 19, 2009.
JUDICIAL CIRCUIT IN AND FOR CLAY
COUNTY, FLORIDA
CASE NO.: 09-310-CA
DIVISION: B
BANK OF AMERICA, NATL ASSOC.AS
Plaintiff(s),
vs.
Robert Bernard, et al.
Defendant(s).
/
DEFENDANT'S EMERGENCY MOTION TO STRIKE PLAINTIFFS SECOND FILED
RESPONSE TO DEFENDANT, ROBERT BERNARDS MOTION TO DISMISS
COMES NOW the Defendant, Robert Bernard, by and through undersigned counsel and
moves this court to strike the Plaintiffs Response to Defendant, Robert Bernards Motion to
Dismiss, and to grant attorney fees to Defendant, Robert Bernard. In support thereof Defendant
states:
1. Plaintiff recently submitted to the Court for the second time, Plaintiffs Response to
Defendant, Robert Bernards Motion to Dismiss , along with a proposed order for the Courts
1
consideration without a hearing. This motion is being submitted as an emergency motion to strike
to draw the Courts attention to this matter before the consideration of such proposed motion.
2. Plaintiff previously filed Plaintiffs Response to Defendant, Robert Bernards Motion
to Dismiss on or about April 8, 2009. See Exhibit A. At that time, the Plaintiff also included,
without copying undersigned, a proposed order.
All Rights Reserved
Additional attempts would have been made but for the fact that undersigned and his
2
secretary where each on vacation and out of the office the week of June 8, 2009, and did not
return until June 15, 2009.
3. Consequent to such response and the proposed order, the Court entered an Order
Denying Motion to Dismiss Filed By Defendant(s) Robert Bernard on April 8, 009. See Exhibit C.
4. On April 20, 2009, Defendant served Defendant Robert Bernards: (1) Motion to
Vacate Order Denying Motion to Dismiss; (2) Memorandum of Law in Reply to Plaintiffs Response
to Motion to Dismiss; (3) Motion to Strike Response to Motion to Dismiss; and (4) Motion for
Attorneys Fees and Costs, which raised substantial issues with the Plaintiffs ex parte submission
of its proposed order, as well as the substance of Plaintiffs response. See Exhibit D.
5. Consequent to the Defendants motion, on April 23, 2009, the Court entered an order
vacating the original dismissal of the Defendants Motion to Dismiss, and requested that the parties
schedule a hearing on the Motion to Dismiss. See Exhibit E.
6. On no less than six occasions, staff for the undersigned contacted staff for Plaintiffs
counsel and attempted to set this matter for hearing. The dates on which attempts were made are
as follows: May 15, 2009; at least two attempts on unknown dates between May 15, 2009, and June
1, 2009; June 2, 2009; June 3, 2009; and June 5, 2009. For one reason or another, even after these
2
six attempts, a hearing could not be scheduled. Staff for undersigned is available to testify
regarding attempts to set this matter for a hearing. Undersigned has acted diligently in attempting
to coordinate the hearing mandated by the Courts order.
7. Plaintiff has again submitted its Plaintiffs Response to Defendant, Robert Bernards
Motion to Dismiss, again with a proposed order, in complete disregard of the Courts earlier order.
Such filing is an affront to the judicial process and is nothing short of frivolous.
8. Plaintiffs second filed Plaintiffs Response to Defendant, Robert Bernards Motion
to Dismiss should be stricken from the record and the Court should disregard the proposed order
provided by Plaintiff.
9. Defendant retained undersigned counsel and agreed to pay undersigned counsel a
reasonable attorneys fee for such representation. Plaintiff should be required to contribute
reasonable attorneys fees to Defendant for the time necessary to submit and follow-up on this
motion.
WHEREFORE, Defendant prays for the relief above stated and such other relief as that the
Court deems just and equitable.
All Rights Reserved

_______________________________________
STEVEN P. COMBS
Telephone (904) 359-5505
Facsimile (904) 359-5506
I HEREBY CERTIFY that a copy of the foregoing has been delivered by United States Mail
on June 19, 2009, and by Facsimile Transmission on June 22, 2009, to Scott Griffith, Esquire,
Florida Default Law Group, Post Office Box 25018, Tampa, Florida 33622-5018.
______________________________________
Attorney
All Rights Reserved
The Notice of Hearing was erroneously sent to the prior record address of Defendants
1
counsel, notwithstanding that on June 2, 2009, a Notice of Change of Address was filed and
CASE NO.: 2009-310 -CA
DIVISION: B
BANK OF AMERICA, NATL ASSOC. AS
Plaintiff(s),
vs.
ROBERT BERNARD, et al.,
Defendant(s).
/
DEFENDANT ROBERT BERNARDS:
(1) MOTION FOR CONTINUANCE (WITHOUT HEARING); AND (2) MOTION FOR
SANCTIONS AGAINST PLAINTIFF FOR REPETITIVE UNPROFESSIONAL
CONDUCT IN THE INSTANT CASE (AFTER SEPARATE HEARING WITH NOTICE)
COMES NOW the Defendant, Robert Bernard (the Defendant), by and through
undersigned counsel, and pursuant to Rule 1.460, Florida Rules of Civil Procedure, the Fourth
Judicial Circuit Administrative Order 98-19, and the Courts inherent powers, and files this motion
to continue the unilaterally set hearing on Defendants Second Motion to Dismiss, which was set
for an inadequate amount of time (five minutes), set for January 19, 2010, at 1:25 p.m., and a motion
for sanctions for the costs incurred in bringing this motion and other motions previously filed with
the Court, all of which were the result of the unprofessional and vexatious conduct of Plaintiffs
counsel. The Court is requested to hear this Motion for Continuance without a hearing; and is
requested to hear the motion for sanctions after a separate hearing with notice. In support of the
foregoing, Defendant states:
1. Plaintiff Unilaterally Set the Hearing. On January 4, 2010, the Plaintiff filed and
served Plaintiffs Amended Notice of Hearing (the Notice of Hearing), purporting to schedule a
hearing on Defendants Second Motion for Contempt.
1
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served upon the Plaintiff. As a result of using the incorrect address, the Notice of Hearing was
not actually received in the office of the undersigned until Saturday, January 9, 2010, and was
not reviewed by undersigned until Monday, January 11, 2009.
Defendants Motion for Continuance and Sanctions
Page 2 of 5
2. Undersigned is Unavailable and the Hearing Time of 5 Minutes is Inadequate.
Undersigned is not available for the hearing on January 19, 2009, at 1:25 p.m., as he is serving as
a mediator in a separate matter, commencing at 1:00 p.m. There are no other attorneys in
undersigneds firm that practice foreclosures defense law who could argue the hearing. Second, the
time allotted for hearing the matter, five minutes, is inadequate. Notwithstanding the designation of
the notice as a Re-notice, no prior notice had been served relative to the Defendants Second
Motion to Dismiss.
3. Undersigned Expended Substantial Effort in Attempting to Resolve this Matter
without the Necessity of Filing a Motion.
a. On or about January 12, 2010, undersigned counsel contacted Ms.. Lenore
Dunaway, Judicial Assistant to the Honorable William Wilkes, Circuit Court Judge, and advised her
that undersigned had received a notice of hearing for January 19, 2010, which had not been
coordinated with the undersigneds office. At that time it was learned that a meager five minutes
was allotted for the legal argument on the Second Motion to Dismiss, although 20 to 30 minutes at
the least would likely be necessary.
b. An attempt was made by staff of the undersigned at that time to contact the
Opposing Law Fim to reschedule the hearing while Ms. Dunaway was on the line. There was no
person at the Opposing Law Firm that could be reached to reschedule the hearing. Several
alternative dates for the hearing were obtained by staff for the undersigned, and another call was
made to advise the Opposing Law Firm as to the fact that such alternative dates were available for
holding a hearing on the Defendants Second Motion to Dismiss.
c. In addition to the two attempts set forth above, the following attempts were
made to resolve this issue without the need for filing the instant motion:
i. On January 13, 2010, at 10:45 a.m., undesigneds staff called for Mr.
Griffith or his assistant, was unable to speak with either, but left a
message for Mr. Griffiths assistant, Lauren, at the Opposing Law
Firm. No return call was forthcoming from Lauren or Mr. Griffith.
ii. On January 13, 2010, at 2:04 p.m., undersigned staff called for Mr.
Griffith or his assistant, was unable to speak with either, and after
seven minutes on hold, left a message for Mr. Griffiths assistant,
Lauren, at the Opposing Law Firm. No return call was forthcoming
from Lauren or Mr. Griffith.
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Page 3 of 5
iii. On January 14, 2010, at 9:11 a.m., undesigneds staff called for Mr.
iv. On January 15, 2010, at 9:46 p.m., undesigneds staff called for Mr.
v. On January 16, 2010, at about 1:30 p.m., undesigneds staff emailed
Mr. Griffith. No return call or email was forthcoming from Lauren or
Mr. Griffith.
vi. On January 18, 2010, at 4:40 p.m., undesigneds staff called for Mr.
message for Mr. Griffiths at the Opposing Law Firm. No return call
was forthcoming from Mr. Griffith.
vii. On January 18, 2010, at 6:48 p.m., undersigned personally sent an
email to Mr. Griffith. No return call or email was forthcoming from
Mr. Griffith.
d. Prior to the e-filing of this motion at about or about 9:45 a.m. on Tuesday,
January 19, 2010, undersigned counsel had not been contacted by the Opposing Law Firm.
4. The Opposing Law Firms Conduct Violated Administrative Order 98-19. In
Administrative Order 98-19, the Fourth Judicial Circuit adopted the Guidelines for Professional
Conduct of the Trial Lawyers Section of the Florida Bar, (the Professional Guidelines). The
Professional Guidelines provides, inter alia:
B. SCHEDULING, CONTINUANCES, AND EXTENSIONS OF
TIME
1. Attorneys are encouraged to communicate with opposing
counsel prior to scheduling . . . hearings . . . in order to
schedule them at times that are mutually convenient for all
interested persons. Alternatively, if an attorney does not
communicate with opposing counsel prior to scheduling a
... hearing, the attorney should be willing to reschedule
that deposition or hearing if the time selected is
inconvenient for opposing counsel.
* * *
All Rights Reserved
The Opposing Law Firm or Opposing Counsel refers to the law firm as a whole and not
2
any individual lawyer within the firm. The reason for this is that responsibility appears to be
diffused between lawyers and staff depending on the function in question. This may be one of
the problems that causes the vexatious nature of the firms conduct.
Page 4 of 5
4. Attorneys should cooperate with each other when conflicts
and calendar changes are necessary and requested.
* * *
7. When scheduling hearings and other adjudicative
proceedings, a lawyer should request an amount of time
that is truly calculated to permit full and fair presentation
of the matter to be adjudicated and to permit equal
response by the lawyer's adversary.
8. A lawyer should accede to all reasonable requests for
scheduling, rescheduling, cancellations, extensions, and
postponements that do not prejudice the client's
opportunity for full, fair and prompt consideration and
adjudication of the client's claim or defense.
The Opposing Law Firms conduct in originally scheduling the Defendants Second Motion to
Dismiss unilaterally, and then for only five minutes, as well Plaintiffs Counsels wholesale lack
2
of cooperation with undersigned counsel to reschedule this matter, violated Administrative Order
98-19 by violating paragraphs 1, 4, 7 and 8, of Section B, of the Professional Guidelines, and is in
fact nothing short of vexatious.
5. Judge This Isnt The First Time! Undersigned is aware that complex systems
occasionally go awry. It might be understandable, at first to ascribe the goings-on leading up to this
motion as a matter falling through the cracks at a large Plaintiffs foreclosure mill. The problem
is that this is the third time in this very case that the Opposing Law Firm has engaged n vexatious
conduct which has violated Administrative Order 98-19 and the Professional Guidelines. On the
first occasion, the Opposing Law Firm submitted ex parte a proposed Order Denying Defendants
first Motion to Dismiss, without providing a copy of the same to the undersigned before or
simultaneously with providing it to the Court. After spending about five hours preparing a motion
to vacate and memorandum on why the motion should not be dismiss, and filing the same, opposing
counsel agreed to vacate the order. Then the same thing happened again! Again, after spending
time to file a motion to vacate, opposing counsel agreed to vacate the order. Now, undersigned
counsel, because of the conduct of opposing counsel, has been forced to file a motion for
continuance of a unilaterally scheduled motion hearing that had been set for a mere five minutes in
the first place.
6. The Court Should Hold a Separate Hearing at Which it Should Hear Argument
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Page 5 of 5
and/or Evidence on Whether it Should Sanction the Opposing Law Firm Through Use of the
Courts Inherent Powers. If Courts do not sanction the type of conduct that has occurred in this
case on no less than three occasions, then large mill firms will continue to engaged vexatious
conduct, clogging even more an already clogged Court system. The Court has the inherent power
to sanction the Opposing Law Firm and should do so. See Moakley v. Smallwood, 826 So. 2d. 221
(Fla. 2002). Defendant would request a separate hearing on the request for sanctions. The
Defendant has agreed to pay undersigned a reasonable fee. The Plaintiff or the Opposing Law Firm
should as a sanction be required to pay for the attorneys labor involved in defending this action as
it relates to each of the three separate instances of the Opposing Law Firms vexatious conduct
violating Administrative Order 98-19.
WHEREFORE, the Defendant, Robert Bernard, prays this Honorable Court to continue the
unilaterally set hearing on Defendants Second Motion, to sanction the Plaintiff and to grant the
Plaintiff reasonable fees and costs as related to the incidents set forth in the foregoing motion.
_______________________________________
STEVEN P. COMBS
Telephone (904) 359-5505
Facsimile (904) 359-5506
th
delivered by: (1) Facsimile Transmission to the record fax number of Scott Griffith, Esquire as
maintained at www.flabar.org; (2) Email transmission to the record email address of Scott Griffith,
Esquire as maintained at www.flabar.org; and (3) United States Mail to Scott Griffith, Esquire,
Florida Default Law Group, Post Office Box 25018, Tampa, Florida 33622-5018.
______________________________________
Attorney
All Rights Reserved
FREEBIRD COUNTY, FLORIDA
CIVIL DIVISION
CASE NO.: 10-CA-01
THE BANK OF NEW YORK MELLON
FKA THE BANK OF NEW YORK, AS
TRUSTEE FOR THE CERTIFICATE-
HOLDERS CWALT, INC., ALTERNATIVE
LOAN TRUST 2006-OA22, MORTGAGE
PASSTHROUGH CERTIFICATES, SERIES
2006-OA22,
Plaintiff,
vs.
CAROL BRADY; MICHEAL BRADY; et al.
Defendants,
_____________________________________________/
MOTION TO DISMISS
COMES NOW, the Defendants, CAROL BRADY and MICHAEL BRADY
(Defendants), by and through their undersigned counsel, pursuant to Rules 1.130(b) and 1.140,
Florida Rules of Civil Procedure, and file this Motion to Dismiss the Plaintiffs Complaint for
Foreclosure, or in the alternative, this Motion for More Definite Statement, and, as grounds therefor,
the Defendants state:
registered to do business in the State of Florida or whether Plaintiff has posted a bond as required
2. Pleadings must be pled with sufficient particularity for a defense to be prepared. By
failing to assert basic allegations of residency, Defendants are prejudiced in their ability to
determine whether to raise various defenses, including a defense based upon the Plaintiffs failure
to post a cost bond pursuant to Section 57.011.
All Rights Reserved
Motion to Dismiss -- Holder Not Alleged
Page 2 of 2
3. In paragraph 3 of the Complaint, Plaintiff alleges that Plaintiff is the owner of the
subject note. No where in the Complaint does the Plaintiff allege that it is the holder of the note.
4. In Florida, in order to state a cause of action for foreclosure, the Plaintiff must plead
that it owns and holds the note and mortgage. See Form 1.944, Florida Rules of Civil Procedure;
Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fla. 4 DCA 1975)("when plaintiff files
th
his complaint, he must necessarily allege he is the owner and holder of the note and mortgage in
question.) citing 22 Fla.Jur., Mortgages 314 (1958); see also BAC Funding Consortium, Inc. v.
Jean-Jacque, Case Number 2D08-3553 (Fla. 2d DCA February 10, 2010)(holder or holders
representative is the proper party to bring foreclosure action). The Plaintiff cannot assert a cause
of action for foreclosure if it is not both the owner and the holder of the note; and therefor Plaintiff
lacks standing to sue the Defendants for foreclosure as the Plaintiff has failed to properly plead
standing and to adequately allege it is a real party in interest.
5. Further, even if the status of owner and note can be bifurcated, and a cause of action
can be brought jointly by the owner and by the separate holder, the holder is a real party in interest
who must either be joined in the action, or, the owner must fall within the list of parties able to bring
the claim on behalf of the holder in its own name by virtue of the plain language of Rule 1.120,
Florida Rules of Civil Procedure. The Plaintiff does not fall within the list of parties able to bring
the claim on behalf of the holder in its own name by virtue of the plain language of Rule 1.120.
Accordingly, Plaintiff must, at the least, bring the action as it relates to the holder of the note in the
name of the actual unknown holder, if different than the Plaintiff.
6. Accordingly, the Complaint should be dismissed without prejudice.
I HEREBY CERTIFY that a copy of the foregoing on the 20 of February, 2010, has been
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delivered by United States Mail to Law Offices of Evelyn Angel Martin, 1 Street, Suite 1, Fort
st
Lauderdale, FL 55555.

COMBS & GREENE

_______________________________________
Steven P. Combs
Telephone (904) 359-5505
Facsimile (904) 359-5506
Counsel for the Defendants, CAROL BRADY and
MICHAEL BRADY
All Rights Reserved
It is additionally requested that to the extent that a hearing cannot be scheduled on this matter prior to February
1
9, 2010, that the Court cancel the sale without prejudice so as to allow sufficient time for this matter to be heard by the
Court.
CASE NO: 2009-CA-99999
U.S. BANK NATIONAL ASSOCIATION, AS
TRUSTEE FOR CERTIFICATE HOLDERS
OF BEAR STEARNS ASSET BACKED
SECURITIES I LLC, ASSET BACKED
CERTIFICATES, SERIES 2007-AC1,
Plaintiff,
vs.
ANNABELLE LEE DOE, ET. AL.
Defendants.
____________________________________________/
DEFENDANT, ANNABELLE LEE DOES, AMENDED VERIFIED EMERGENCY MOTION TO
VACATE AND SET ASIDE FINAL SUMMARY JUDGMENT AND
TO CANCEL THE FORECLOSURE SALE SET FOR
TOMORROW FEBRUARY 29, 2010
COMES NOW the Defendant, ANNABELLE LEE DOE, (Ms. Doe) by and through
undersigned counsel, and hereby moves this Court pursuant to Rule 1.540(b), Florida Rules of Civil
Procedure, to vacate the Final Summary Judgment entered in this case on December 23, 2009, based
upon mistake, inadvertence, surprise, or excusable neglect of the Defendant, and to cancel the
foreclosure sale which is currently set for February 29, 2010, and in support thereof states:
1
FACTUAL BACKGROUND
1. In or about August 2009, Ms. Doe was served with a Complaint for Foreclosure on
her home located at100 Please Be Fair Boulevard, Condo Unit No. 09, Any Beach, FL 55555.
2. Prior to the filing of the foreclosure action, Ms. Doe had attempted to seek
meaningful default loan servicing from the Plaintiff. Specifically, towards the middle of the
calendar year 2007, Ms. Doe realized that the income from her small business as a self-employed
All Rights Reserved
Emergency Motion to Vacate Default
Summary Judgment and to Stop Sale
(This case resulted in my 2006 Chrysler
300C SRT8 being totalled. Ask me to tell
the story.)
Moreover, no where in the retainer for the Bankruptcy Firm is there is a statement that the Bankruptcy Firm
2
will only be representing Ms. Doe in just the bankruptcy court.
Page 2 of 18
environmental consultant was waning. She contacted the servicer for the Plaintiff Trust, EMC
Mortgage Corporation (EMC). At that time she was told that because she was current, they could
not discuss any loss mitigation possibilities with her; and that they could only discuss loss mitigation
once she was in default. By December 2008, Ms. Does financial condition had worsened, and she
was unable to pay her December 2008 mortgage. She contacted EMC and was told that she would
need to send in a hardship letter, which she did. See Exhibit A. Thereafter, she had numerous
conversations with EMC employees regarding the possibility of a six month forbearance. After
some time, she was provided with a forbearance agreement which provided a forbearance while she
paid $769.43 for six months. See Exhibit B. However, before executing the agreement, she
learned that the agreement failed to disclose to her that she would be required to pay a lump sum
$8,067.77 following the six month period. See Exhibit C. Having learned this undisclosed fact,
Ms. Doe did not enter into the forbearance agreement.
3. After receiving the Complaint, Ms. Doe sought counsel to assist her in defending the
foreclosure action. Ms. Doe, in fact, entered into a retainer agreement with a local law firm other
than the undersigned that engages in foreclosure defense and bankruptcy (the Bankruptcy Law
Firm). Ms. Doe misunderstood the nature of her engagement of the Bankruptcy Law firm,
believing that her act of retaining the firm to file a Chapter 7 bankruptcy would also result in the
Bankruptcy Law Firm defending this action. One of the reason for Ms. Does understanding in this
regard was that thirteen years ago she filed bankruptcy, and at that time her then pending foreclosure
was included in the retention of that bankruptcy law firm.
4. Additionally, her understanding in this matter was buoyed by her reading of the
retainer agreement with Bankruptcy Law Firm. Specifically, the retainer, which is attached hereto
as Exhibit D, provided the following:
If you are surrendering your mortgage, auto or any other secured
merchandise or property in the bankruptcy, the creditor, BY
FEDERAL LAW, will have to file certain motions and notices with
the Court, whether or not you are still in possession of such property.
You will get notification of every move they make. SO, when you
start receiving documentation from the court or the creditor place it
in a filed marked bankruptcy paperwork AND WALK AWAY
FROM IT. If you are NOT surrendering the property and receive
paperwork like this, CALL US IMMEDIATELY.
Immediately upon receiving the foreclosure complaint in the instant case, Ms. Doe did exactly this
and was assisted by staff for the Bankruptcy Law Firm.
2
5. A series of follow up transmittal letters, which are attached as composite Exhibit E,
provided by Ms. Doe to the staff of the Bankruptcy firm further illustrate her confusion about
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Page 3 of 18
whether she is to proceed or whether the Bankruptcy firm will proceed as her representative:
a. On September 12, 2009, Ms. Doe wrote:
Per your email dated September 9, 2009, I would like
to use the letter you referenced. I do not know if you
submit the letter as a representative, or if I need to
submit the letter myself. If there is an electronic
version, please send it to my email at
doe1@bellsouth.net . Otherwise [sic] I can pick up a
copy from your office. I will be out of town starting
Thursday, Sept. 17 through Sunday, Sept. 20. Since
we are on a deadline, I would like to have this first
request resolved before the 30-day deadline.
If you have any questions, please call me at 904-555-
5555.
Thank you for your assistance.
b. On October 25, 2009, Ms. Doe wrote:
Ms. Duvalier
The Court approved an extension of time to respond
to the foreclosure proceedings until November 6,
2009 (see foreclosure section). If there is an
additional response that is required, please let me
know.
Thank you.
c. On November 11, 2009, Ms. Doe wrote:
Ms. Duvalier
I received notice to appear at a Court Hearing on
December 3, 2009 and payment of court costs and
fees. Also included are additional documents recently
received pertaining to credit card collections and real
estate taxes.
Please let me know how this will proceed. You can
call me at 904-555-5555.
All Rights Reserved
Page 4 of 18
Thank you.
6. In any event, after communications with the staff of the Bankruptcy Law Firm, and
speaking with multiple paralegals, Ms. Doe was provided instruction to file a motion for extension
of time and was provided with a form to do just that. Ms. Doe duly filed the motion for extension
of time, which resulted in this Court issuing an Order requiring that a response to the Complaint be
filed by 5:00 p.m. on November 6, 2009.
7. Ms. Doe received the Court order. However, even at that time Ms. Doe was inquired
if she needed to take any further steps, and when she did not hear anything back from the law firm
she proceeded under the mistaken belief that the Bankruptcy Law Firm would be filing the response
on her behalf by the deadline set by the Court. She again communicated with the Bankruptcy Law
Firm, after receiving a notice of the summary judgment hearing, inquiring how the matter was to
proceed. Only after receiving a copy of the Summary Final Judgment of Foreclosure dated
December 7, 2010, did Ms. Doe discover that the Bankruptcy Law Firm did not file a response on
her behalf and did not appear to defend the action; but instead she learned that it had been her
responsibility to defend the foreclosure action.

LEGAL ARGUMENT
8. There are two separate bases upon which a court may set aside a summary final
judgment of foreclosure. First, and the more common method, is based upon Rule. 1540(b), Florida
Rules of Civil Procedure. The second is Section 702.07, Florida Statutes, an arcane statute dating
from 1927, enacted in the wake of the collapse of the Florida real estate boom. See Sterling Factors
Corp. v. U.S. Bank Natl Assoc., 968 So. 2d 658 (Fla. 2d DCA 2007).
Final Summary Judgment Should be Set Aside Due to
Excusable Neglect, Diligence, and Meritorious Defense
Pursuant to Rule 1.540(b), Florida Rules of Civil Procedure
9. Rule 1.540(b), Florida Rules of Civil Procedure, provides in pertinent part:
On the motion and upon such terms as are just, the
court may relieve a party or a partys legal
representative from a final judgment, decree, order, or
proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; . . . .
10. Generally, "[i]n order to obtain relief pursuant to rule 1.540(b), the party seeking
relief must demonstrate: (1) excusable neglect in failing to respond; (2) meritorious defense; and (3)
that the party acted with due diligence in seeking relief." Schneider v. Schneider, 683 So. 2d 187,
188 (Fla. 4th DCA 1996). Additionally:
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Page 5 of 18
heard on the merits. It is a gross abuse of discretion
for the trial court to rule otherwise.

Somero v. Hendry General Hospital, 467 So. 2d 1103, 1106 (Fla. 4th DCA 1985) (emphasis
supplied); See also Allstate Ins. Co. v. Ladner, 740 So. 2d 42, 43 (Fla. 1st DCA 1999)(to same
effect).
Meritorious Defense
11. Ms. Doe has the following meritorious defenses to the foreclosure action which
should be the subject of ongoing discovery in this litigation:
a. The Plaintiff Does Not Have Standing Because the Note was Not Indorsed
By the Special Indorsee. The Plaintiff, U.S. Bank National Association, as Trustee for Certificate
holders of Bear Stearns Asset Backed Securities I LLC, Asset Backed Certificates, Series 2007-AC1
(the Plaintiff Trust) does not have standing in the instant case because the Note has never been
properly indorsed in its favor.
i. The Uniform Commercial Codes provides that a note which has been
indorsed in blank and then indorsed specially, may only be negotiated by indorsement of the special
indorsee. Specifically, Section 673,2051, Florida Statutes, provides:
673.2051 Special indorsement; blank indorsement; anomalous
indorsement.--
(1) If an indorsement is made by the holder of an instrument,
whether payable to an identified person or payable to bearer, and the
indorsement identifies a person to whom it makes the instrument
payable, it is a "special indorsement." When specially indorsed, an
instrument becomes payable to the identified person and may be
negotiated only by the indorsement of that person. The principles
stated in s. 673.1101 apply to special indorsements.
(2) If an indorsement is made by the holder of an instrument and it
is not a special indorsement, it is a "blank indorsement." When
indorsed in blank, an instrument becomes payable to bearer and may
be negotiated by transfer of possession alone until specially
indorsed.
All Rights Reserved
To the extent that the order of indorsements is not clear by the very nature of an indorsement on the note and
3
a subsequently attached allonge, it certainly creates a serious question of fact which should be further explored.
Page 6 of 18
* * *
(Emphasis added).

ii. The Note attached to Complaint indicates that the note was initially
3
indorsed in blank, and then was married with an allonge indorsing the Note specially to EMC
Mortgage Corporation. However, no where on the Note is there a special indorsement from EMC
Mortgage Corporation to the Plaintiff nor is there a blank indorsement executed by EMC Mortgage
Corporation.
iii. In Florida, a plaintiff is not entitled to maintain a foreclosure action
if it does not own and hold the note which is purportedly secured by the subject mortgage, Your
Construction Center, Inc. v. Gross, 316 So. 2d 596. 597 (Fla. 41h DCA 1975): See also Greenwald
v. Triple D Properties. Inc., 424 So. 2d 185. 187 (Fla. 41h DCA 1983), unless the plaintiff purports
to be acting as the agent for the real party in interest. Mortgage Electronic Registration Systems.
Inc. v.. Revoredo, 955 So. 2d 33, 34 (Fla. 3rd DCA 2007): Mortgage Electronic Registration
Systems. Inc. v. Azize, 965 So. 2d 151. 153 (Fla. 2nd DCA 2007).
iv. Because EMC Mortgage Company, as the special indorsee, failed to
indorse the Note, the Plaintiff Trust is not the owner and holder of the note and lacks standing to
maintain the instant foreclosure action.
12. The Assignment filed with the Court is a Nullity (and borders on Fraud).
i. The Assignment of Mortgage dated August 20, 2009, and signed by
signed by Greg Allen, as Vice-President for Mortgage Electronic Registration Systems, Inc., and
Liquenda Allotey, as Vice-President for Mortgage Electronic Registration Systems, Inc., are a
nullity and border on fraud. Specifically, both Messrs. Allen and Allotey are employees FIS
Foreclosure Solutions, Inc., a Division of Fidelity National Default Solutions, which apparently
operates within the Minneapolis, Minnesota, office of Fidelity National Information Services
Lender Processing Services. It would appear that both Messrs. Allen and Allotey are nothing more
than professional signers. In fact, Mr. Allotey is also known to have executed a warranty deed
conveying a property in Araphoe County, Colorado as an Assistant Vice President of Washington
Mutual Bank; as well as one conveying property in Pottowattamie County, Iowa, again as an
Assistant Vice President of Washington Mutual Bank. See Exhibit F attached hereto.
ii. It would appear that both Messrs. Allen and Allotey were by corporate
resolution of Mortgage Electronic Registration Systems, Inc., appointed as assistant secretaries and
vice-presidents of MERS to act on behalf of MERS for specific limited functions necessary to
All Rights Reserved
See supra note 7.
4
It is this type of misleading behavior on the part of foreclosing entities that has resulted in some courts now
5
requiring signatories purporting to sign as attorneys-in-fact to attach powers of attorneys to the assignments submitted
to the court. See THE MORTGAGE AND ASSET BACKED SECURITIES LITIGATION HANDBOOK, Talcott J. Franklin, Thomas
F. Nealon III, Thompson Reuters/West (May 2009), pp. 5-210, Section 5.113:
Courts may also question whether assignment documents have been
properly executed by duly authorized representatives of the assignor, and where
applicable, the assignee. For example, several courts in New York have held that
when as assignment is executed by a person purporting to be an attorney-in-fact for
either the assignor or the assignee, the assignment must be accompanied by a valid,
limited power of attorney showing that the executor poses the requisite authority as
of the date the assignment was executed. [citing U.S. Bank Natl Assn v. Merino,
Page 7 of 18
foreclose upon property. See Exhibit G attached hereto. Specifically, the corporate resolution
provides:
Be it Resolved that the attached list of candidates are employees of
FIS Foreclosure Solutions, Inc., and are hereby appointed as assistant
secretaries and vice presidents of Mortgage Electronic Registration
Systems, Inc., ("MERS") and, as such, are authorized to: execute any
and all documents necessary to foreclose upon the property securing
any mortgage loan registered on the MERS System that is shown to
be registered to the Member, including but not limited to (a)
substitution of trustee on Deeds of Trust, (b) Trustee's Deeds upon
sale on behalf of MERS, (c) Affidavits of Non-military Status, (d)
Affidavits of Judgment, (e) Affidavits of Debt, (f) quitclaim deeds,
(g) Affidavits regarding lost promissory notes, and (h) endorsements
of promissory notes to VA or HUD on behalf of MERS as a required
part of the claims process . . . .
This resolution, however, in ineffective to grant Messrs. Allen and Allotey to executed an
assignment on behalf of MERS because the execution of an assignment is necessary to convey an
interest in the mortgage from one entity to another. It is a link in a chain that is proper and
necessary to effectuate a transfer of an interest in the mortgage loan. Indeed, it appears to be a
requirement of the Pooling and Servicing Agreement that the assignment to the trust occur in
relatively short order following the creation of the trust. In any event, it is not a step in a
4
foreclosure process unless you are an entity which is attempting to create an appearance of
ownership for the Court which did not in exist theretofore. Thus, the execution of the assignment
goes beyond the authority bestowed upon Messrs. Allen and Allotey; and is therefore a nullity
and is no better than an assignment signed by a random individual off a street corner.
Moreover, the submission of the assignment to the Court signed by employees of FIS Foreclosure
Solutions, Inc., without an explanation that the parties signing were not employees of MERS, but
only appointed to act as Vice-Presidents of MERS borders upon fraud upon the Court.
5
All Rights Reserved
16 Misc. 3d 209, 836 N.Y.SS.2d 853, 854 (Sup. 2007).]
(Footnote omitted). It may be necessary at this point, for foreclosing parties to submit with any assignments an affidavit
stating that the signatory is a bona fide employee of the assigning entity or attach a valid corporate resolution which
clearly indicates the signatorys capacity to execute the assignment.
As stated in THE MORTGAGE AND ASSET BACKED SECURITIES LITIGATION HANDBOOK, Talcott J. Franklin,
6
Thomas F. Nealon III, Thompson Reuters/West (May 2009), pp. 5-208, Section 5.113:
... Courts may ignore an assignment after a foreclosure action is filed, but which
purports to be retroactive to a date prior to such filing. . . . [citing Countrywide
Home Loans, Inc. v. Taylor, 17 Misc. 3d 595, 843 N.Y.S.2d 495, 497 (Sup. 2007).]
(Footnote omitted).
Section 2.01, Conveyance of Trust Funds, of the Pooling and Servicing Agreement for the Bear Stearns Asset
7
Backed Securities I Trust 2007-AC1, Asset-backed Certificates, Series 2007-AC1, provides in pertinent part:
In connection with such sale, the Depositor has delivered to, and deposited with, or
caused to be delivered to and deposited with, the Trustee or the Custodian, as its
agent, the following documents or instruments with respect to each Mortgage Loan
so assigned: (I) the original Mortgage Note, including any riders thereto, endorsed
without recourse (A) in blank or to the order of U.S. Bank National Association,
as Trustee for Certificateholders of Bear Stearns Asset Backed Securities I LLC,
Page 8 of 18
b. The Plaintiff Does Not Have Standing Because the Assignment to the
Plaintiff Post Dated the Filing of this Action. The Plaintiff Trust did not have standing to bring
the instant action in as much as the mortgage was not assigned to the Plaintiff Trust until four days
following the filing of the action. At best for Plaintiff, where such an assignment post-dates the
filing of a complaint, a question arises as to whether the Plaintiff secured its interest in the mortgage
before or after the filing of the foreclosure action and the Court should undertake an evidentiary
hearing to determine when the Plaintiff obtained its interest in the mortgage. See WM Specialty
Mortgage, LLC, V. Salomon, 874 So. 2d 680 (Fla. 4 2004). At worst, the Plaintiff should not be
th
allowed to pursue this foreclosure case because it lacked any equitable interest in the mortgage at
the time of the commencement of suit. See Jeff-Ray Corp. v. Jacobson, 566 So. 2d 885, 886 (Fla.
4th DCA 1990) (holding that the assignee of a mortgage could not maintain the mortgage
foreclosure action because the assignment was dated four months after the action was filed; if the
plaintiff wished to proceed on the assignment, it must file a new complaint); see also State Street
Bank and Trust Company v. Lord, 851 So. 2d 790 (Fla. 4 DCA 2003)(mortgagee could not pursue
th
foreclosure in the absence of proof that either the mortgagee, or its assignor, ever had possession of
the missing promissory note).
6
c. The Plaintiff Will Never Have Standing Because It is Incapable of
Acquiring the Note. The Plaintiff Trust is governed by a Pooling and Servicing Agreement
(PSA) which requires that the original Note be transferred to the trust at or near its start-up date
from a specified bankruptcy remote special purpose vehicle, which in this case was Bear Stearns
Asset Backed Securities I LLC, a Delaware limited liability company. The reason for governing
7
All Rights Reserved
Asset Backed Certificates, Series 2007-AC1, or (B) in the case of a loan registered
on the MERS system, in blank, and in each case showing an unbroken chain of
endorsements from the original payee thereof to the Person endorsing it to the
Trustee, (ii) the original Mortgage and, if the related Mortgage Loan is a MOM
Loan, noting the presence of the MIN and language indicating that such Mortgage
Loan is a MOM Loan, which shall have been recorded (or, for Mortgage Loans
other than the EMC Flow Loans, if the original is not available, a copy), with
evidence of such recording indicated thereon (or if clause (x) in the proviso below
applies, shall be in recordable form), (iii) unless the Mortgage Loan is either a
MOM Loan or has been assigned in the name of MERS, the assignment (either
an original or a copy, which may be in the form of a blanket assignment if
permitted in the jurisdiction in which the Mortgaged Property is located) to the
Trustee of the Mortgage with respect to each Mortgage Loan in the name of U.S.
Bank National Association, as Trustee for Certificateholders of Bear Stearns Asset
Backed Securities I LLC, Asset Backed Certificates, Series 2007-AC1, which shall
have been recorded (or if clause (x) in the proviso below applies, shall be in
recordable form) (iv) an original or a copy of all intervening assignments of the
Mortgage, if any, with evidence of recording thereon, (v) with respect to any
Mortgage Loan, the original policy of title insurance or mortgagees certificate of
title insurance or commitment or binder for title insurance or, in the event such
original title policy has not been received from the title insurer, such title policy will
be delivered within one year of the Closing Date or, in the event such original title
policy is unavailable, a photocopy of such title policy, or, in lieu thereof, a current
lien search on the related Mortgaged Property; and (vi) originals or copies of all
available assumption, modification or substitution agreements, if any; provided,
however, that in lieu of the foregoing, EMC or Master Funding, as applicable, may
deliver the following documents, under the circumstances set forth below: (x) if any
Mortgage (other than the Mortgages related to the EMC Flow Loans), assignment
thereof to or intervening assignments thereof have been delivered or are being
delivered to recording offices for recording and have not been returned in time to
permit their delivery as specified above, the Depositor may deliver, or cause to be
delivered, a true copy thereof with a certification by EMC or Master Funding, as
applicable, or the title company issuing the commitment for title insurance, on the
face of such copy, substantially as follows: Certified to be a true and correct copy
of the original, which has been transmitted for recording; (y) in lieu of the
Mortgage (other than the Mortgages related to the EMC Flow Loans), assignment
or intervening assignments thereof, if the applicable jurisdiction retains the originals
of such documents (as evidenced by a certification from the Depositor to such
effect) the Depositor may deliver, or cause to be delivered, photocopies of such
documents containing an original certification by the judicial or other governmental
authority of the jurisdiction where such documents were recorded; and (z) in lieu
of the Mortgage Notes relating to the Mortgage Loans identified in the list set forth
in Exhibit I, the Depositor may deliver, or cause to be delivered, a lost note affidavit
and indemnity and a copy of the original note, if available; and provided, further,
however, that in the case of Mortgage Loans which have been prepaid in full after
the Cut-off Date and prior to the Closing Date, the Depositor, in lieu of delivering
the above documents, may deliver, or cause to be delivered, to the Trustee and the
Custodian a certification of a Servicing Officer to such effect and in such case shall
deposit all amounts paid in respect of such Mortgage Loans, in the Protected
Account, in the Master Servicer Collection Account or in the Distribution Account
on the Closing Date. In the case of the documents referred to in clause (x) above,
Page 9 of 18
All Rights Reserved
the Depositor shall deliver, or cause to be delivered, such documents to the Trustee
or the Custodian promptly after they are received.
26 USCS 860A provides:
8
860A. Taxation of REMIC's.
(a) General rule. Except as otherwise provided in this part [26 USCS 860A et
seq.], a REMIC shall not be subject to taxation under this subtitle [26 USCS
1 et seq.] (and shall not be treated as a corporation, partnership, or trust for
purposes of this subtitle [26 USCS 1 et seq.]).
(b) Income taxable to holders. The income of any REMIC shall be taxable to the
holders of interests in such REMIC as provided in this part [26 USCS 860A et
seq.].
(Emphasis added; brackets in original USCS).
26 USCS 860D provides:
9
860D. REMIC defined.
(a) General rule. For purposes of this title, the terms 'real estate mortgage
investment conduit' and 'REMIC' mean any entity--
(1) to which an election to be treated as a REMIC applies for the taxable
year and all prior taxable years,
(2) all of the interests in which are regular interests or residual interests,
(3) which has 1 (and only 1) class of residual interests (and all
distributions, if any, with respect to such interests are pro rata),
(4) as of the close of the 3rd month beginning after the startup day and
at all times thereafter, substantially all of the assets of which consist of
qualified mortgages and permitted investments,
(5) which has a taxable year which is a calendar year, and
(6) with respect to which there are reasonable arrangements designed to
ensure that--
(A) residual interests in such entity are not held by disqualified
organizations (as defined in section 860E(e)(5) [26 USCS 860E(e)(5)]), and
(B) information necessary for the application of section 860E(e)
[26 USCS 860E(e)] will be made available by the entity.
In the case of a qualified liquidation (as defined in section 860F(a)(4)(A) [26 USCS 860F(a)(4)(A)]),
paragraph (4) shall not apply during the liquidation period (as defined in section 860F(a)(4)(B) [26
USCS 860F(a)(4)(B)]).
Page 10 of 18
the manner in which securitized trust could become owners of notes was to prevent securitized trust
from losing their tax exempt status as Real Estate Mortgage Investment Conduits (REMICs).
8
In order qualify as a REMIC, the trust is required to receive its contributions at or near its start up
dat e.
9 , 1 0 , 1 1
All Rights Reserved
(b) Election.
(1) In general. An entity (otherwise meeting the requirements of subsection (a)) may elect
to be treated as a REMIC for its 1st taxable year. Such an election shall be made on its return for such
1st taxable year. Except as provided in paragraph (2), such an election shall apply to the taxable year
for which made and all subsequent taxable years.
(2) Termination.
(A) In general. If any entity ceases to be a REMIC at any time during the
taxable year, such entity shall not be treated as a REMIC for such taxable year or any
succeeding taxable year.
(B) Inadvertent terminations. If--
(i) an entity ceases to be a REMIC,
(ii) the Secretary determines that such cessation was inadvertent,
(iii) no later than a reasonable time after the discovery of the event resulting
in such cessation, steps are taken so that such entity is once more a REMIC, and
(iv) such entity, and each person holding an interest in such entity at any
time during the period specified pursuant to this subsection, agrees to make such adjustments
(consistent with the treatment of such entity as a REMIC or a C corporation) as may be required by
the Secretary with respect to such period, then, notwithstanding such terminating event, such entity
shall be treated as continuing to be a REMIC (or such cessation shall be disregarded for purposes of
subparagraph (A)) whichever the Secretary determines to be appropriate.
26 USCS 860F provides:
10
860F. Other rules.
(a) 100 percent tax on prohibited transactions.
(1) Tax imposed. There is hereby imposed for each taxable year of a REMIC a tax equal
to 100 percent of the net income derived from prohibited transactions.
(2) Prohibited transaction. For purposes of this part [26 USCS 860A et seq.], the
term 'prohibited transaction' means--
(A) Disposition of qualified mortgage. The disposition of any qualified mortgage
transferred to the REMIC other than a disposition pursuant to--
(I) the substitution of a qualified replacement mortgage for a qualified
mortgage (or the repurchase in lieu of substitution of a defective obligation),
(ii) a disposition incident to the foreclosure, default, or imminent default
of the mortgage,
(iii) the bankruptcy or insolvency of the REMIC, or
(iv) a qualified liquidation.
(B) Income from nonpermitted assets. The receipt of any income attributable to any
asset which is neither a qualified mortgage nor a permitted investment.
(C) Compensation for services. The receipt by the REMIC of any amount representing a fee
or other compensation for services.
(D) Gain from disposition of cash flow investments. Gain from the disposition of any cash
flow investment other than pursuant to any qualified liquidation.
(3) Determination of net income. For purposes of paragraph (1), the term 'net income derived from
prohibited transactions' means the excess of the gross income from prohibited transactions over the
deductions allowed by this chapter [26 USCS 1 et seq.] which are directly connected with such
Page 11 of 18
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transactions; except that there shall not be taken into account any item attributable to any prohibited
transaction for which there was a loss.
(b) Treatment of transfers to the REMIC.
(1) Treatment of transferor.
(A) Nonrecognition gain or loss. No gain or loss shall be recognized to the transferor
on the transfer of any property to a REMIC in exchange for regular or residual interests in such
REMIC.
(B) Adjusted bases of interests. The adjusted bases of the regular and residual
interests received in a transfer described in subparagraph (A) shall be equal to the aggregate adjusted
bases of the property transferred in such transfer. Such amount shall be allocated among such interests
in proportion to their respective fair market values.
(C) Treatment of nonrecognized gain. If the issue price of any regular or residual
interest exceeds its adjusted basis as determined under subparagraph (B), for periods during which
such interest is held by the transferor (or by any other person whose basis is determined in whole or
in part by reference to the basis of such interest in the hand of the transferor)--
(I) in the case of a regular interest, such excess shall be included in gross
income (as determined under rules similar to rules of section 1276(b) [26 USCS 1276(b)]), and
(ii) in the case of a residual interest, such excess shall be included in gross
income ratably over the anticipated period during which the REMIC will be in existence.
(D) Treatment of nonrecognized loss. If the adjusted basis of any regular or residual
interest received in a transfer described in subparagraph (A) exceeds its issue price, for periods during
which such interest is held by the transferor (or by any other person whose basis is determined in
whole or in part by reference to the basis of such interest in the hand of the transferor)--
(I) in the case of a regular interest, such excess shall be allowable as a
deduction under rules similar to the rules of section 171 [26 USCS 171], and
(ii) in the case of a residual interest, such excess shall be allowable as a
deduction ratably over the anticipated period during which the REMIC will be in existence.
(2) Basis to REMIC. The basis of any property received by a REMIC in a transfer described
in paragraph (1)(A) shall be its fair market value immediately after such transfer.
(c) Distributions of property. If a REMIC makes a distribution of property with respect to any regular
or residual interest--
(1) notwithstanding any other provision of this subtitle [26 USCS 1 et seq.], gain shall be
recognized to such REMIC on the distribution in the same manner as if it had sold such property to
the distributee at its fair market value, and
(2) the basis of the distributee in such property shall be its fair market value.
(d) Coordination with wash sale rules. For purposes of section 1091[26 USCS 1091]--
(1) any residual interest in a REMIC shall be treated as a security, and
(2) in applying such section to any loss claimed to have been sustained on the sale or other
disposition of a residual interest in a REMIC
(A) except as provided in regulations, any residual interest in any REMIC and any
interest in a taxable mortgage pool (as defined in section 7701(I) [26 USCS 7701(I)]) comparable
to a residual interest in a REMIC shall be treated as substantially identical stock or securities, and
(B) subsections (a) and (e) of such section shall be applied by substituting '6 months'
for '30 days' each place it appears.
(e) Treatment under subtitle F. For purposes of subtitle F [26 USCS 6001 et seq.], a REMIC shall
be treated as a partnership (and holders of residual interests in such REMIC shall be treated as
partners). Any return required by reason of the preceding sentence shall include the amount of the
Page 12 of 18
All Rights Reserved
daily accruals determined under section 860E(c) [26 USCS 860E(c)]. Such return shall be filed by
the REMIC. The determination of who may sign such return shall be made without regard to the first
sentence of this subsection.
Section 4.02, REMIC-Related Covenants, of the Pooling and Servicing Agreement for the Bear Stearns Asset
11
Backed Securities I Trust 2007-AC1, Asset-backed Certificates, Series 2007-AC1, provides in pertinent part:
For as long as each REMIC created hereunder shall exist, the Trustee and the
Securities Administrator shall act in accordance herewith to assure continuing
treatment of such REMIC as a REMIC, and the Trustee and the Securities
Administrator shall comply with any directions of the Seller, the Company, the
Servicers or the Master Servicer to assure such continuing treatment. In
particular, the Trustee shall not (except as otherwise expressly permitted by this
Agreement) (a) sell or permit the sale of all or any portion of the Mortgage
Loans or of any investment of deposits in an Account unless such sale is as a
result of a repurchase of the Mortgage Loans pursuant to this Agreement or the
Trustee has received a REMIC Opinion addressed to the Trustee prepared at the
expense of the Trust Fund; (b) other than with respect to a substitution pursuant
to the Mortgage Loan Purchase Agreement or Section 2.03 of this Agreement, as
applicable, accept any contribution to any REMIC after the Startup Day without
receipt of a REMIC Opinion; or (c) acquire any assets for any REMIC other than
any REO Property after the Startup Day without receipt of a REMIC Opinion.
Page 13 of 18
Having failed to take possession of the Note in conformity with its PSA, the Plaintiff Trust is
incapable of ever owning and holding the Note.

d. Failure to Provide Required Default Loan Servicing pursuant to the
National Housing Act. The Plaintiff failed to comply with the foreclosure prevention loan
1701x(c)(5), which requires all private lenders servicing non-federally insured home loans,
including the Plaintiff, to advise borrowers including the Defendant, of any home ownership
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. Plaintiffs non-compliance with the laws requirement 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 the Plaintiff its ability foreclose upon the subject property.
Plaintiff cannot legally pursue foreclosure unless and until Plaintiff demonstrated compliance with
12 U.S.C. 1701x(c)(5). The offer of a forbearance for six month followed by an undisclosed
requirement of a $8,067.77 balloon payment did not discharge Plaintiffs servicing requirement
under the National Housing Act.
e. Failure to Provide Fannie Mae Default Loan Servicing. Additionally, on
the face of the mortgage attached to the Plaintiff's complaint, and appearing at the bottom of each
and every page of the mortgage, is the following printed statement: FLORIDA-Single
All Rights Reserved
Page 14 of 18
Family-FNMA/FHLMC UNIFORM INSTRUMENT. As such, Plaintiff is bound by the special
single family residential default loan servicing set out by Fannie Mae and Freddie Mac (Federal
National Mortgage Association and the Federal Home Loan Mortgage Corporation) and which are
easily accessible to all borrowers whose loans include the FLORIDA-Single
Family-FNMA/FHLMC UNIFORM INSTRUMENT disclosure at the public websites:
www.fanniemae.com and www.freddiemac.com. Compliance with the Fannie Mae/Freddie Mac
default loan servicing guidelines and with the plaintiff's own default loan servicing practices is a
contractual condition precedent to instituting this foreclosure action and the failure of the plaintiff
to implement foreclosure avoidance. The offer of a forbearance for six month followed by an
undisclosed requirement of a $8,067.77 balloon payment did not discharge Plaintiffs Fannie Mae
servicing requirements.
f. Plaintiff Failure to Comply with Applicable Pooling and Servicing
Agreement Loan Servicing Requirements. Plaintiff failed to provide 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. Specifically, the Pooling and Servicing Agreement provides
in pertinent part as follows:
Section 5.01 Collection of Mortgage Loan Payments; Protected
Account.
. . . [I]f (x) an EMC Mortgage Loan is in default or default is
reasonably foreseeable, and in accordance with the guidelines of
EMCs Master Servicing Asset Authority Levels, attached hereto as
Exhibit W, the Company may also waive, modify or vary any term of
any EMC Mortgage Loan or consent to the postponement of strict
compliance with any such term or in any manner grant indulgence to
any mortgagor, including without limitation, to (1) capitalize any
amounts owing on the EMC Mortgage Loan by adding such amount
to the outstanding principal balance of the EMC Mortgage Loan, (2)
defer such amounts to a later date or the final payment date of such
Mortgage Loan, (3) extend the maturity of any such EMC Mortgage
Loan, but in no instance past the date on which the final payment is
due on the latest maturing Mortgage Loan as of the Cut-off Date,
and/or (4) reduce the related Mortgage Rate (subject to clause (y)
below), provided that, in the Companys determination, such waiver,
modification, postponement or indulgence is not materially adverse
to the interests of the Certificateholders (taking into account any
estimated Realized Loss that might result absent such action), or (y)
the Company delivers to the Trustee a certification addressed to the
Trustee, based on the advice of counsel or certified public
accountants, in either case, that have a national reputation with
All Rights Reserved
Page 15 of 18
respect to taxation of REMICs, that a modification of such EMC
Mortgage Loan will not result in the imposition of taxes on or
disqualify from REMIC status any of REMIC I, REMIC II, REMIC
III, REMIC IV or REMIC V the Company may, (A) amend the
related Mortgage Note to reduce the Mortgage Rate applicable
thereto, provided that such reduced Mortgage Rate shall in no event
be lower than 5.00% with respect to any EMC Mortgage Loan and
(B) amend any Mortgage Note related to an EMC Mortgage Loan to
extend to the maturity thereof.
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. Defendant
asserts that the special default loan servicing requirements contained in the subject pooling and
out in that agreement. 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. 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.
The offer of a forbearance for six month followed by an undisclosed requirement of a $8,067.77
balloon payment did not discharge Plaintiff's servicing requirement under the Pooling and Servicing
Agreement.
Excusable Neglect
13. In the instant case, Ms. Does failure to file a response to the Complaint was caused
by her lack of understanding of the distinction between securing counsel for a bankruptcy
proceeding and her state foreclosure proceeding. While such distinction is elementary to those of
us who routinely practice law on a day to day basis, to a lay person their bankruptcy and foreclosure
is simply one big legal problem that they do not truly understand. Moreover, in the instant case, Ms.
Does misunderstanding was fueled by her 1996 involvement in the legal system in which her then
retention of a law firm to file a bankruptcy included retention of that firm to make an appearance
in a foreclosure action as well as here interaction with the staff of the Bankruptcy Law Firm.
Further, the transmittal letters referenced above, reflect a bona fide confusion on the part of Ms. Doe
in whether she was proceeding on her own or with assistance from the Bankruptcy Law Firm. In
any event, Ms. Does subjective misunderstanding is the type of human foible which is contemplated
by Somero in its discussion of excusable neglect.
All Rights Reserved
Undersigned attempted to complete this motion and have it filed no later than Wednesday,
12
January 20, 2010, but was unable to complete it. Undersigned was out of the office on Thursday and
Friday, attending the meeting of Rules of Judicial Administration Committee and the meeting of the
Family Law Rules of Procedure Committee.
Page 16 of 18

14. Rule 1.540 provides that a motion for relief from a final judgment based on excusable
neglect must be made within a reasonable time not to exceed one year from the date the order was
entered. As explained in Canned v. Canned, 453 So.2d 179, 181 (Fla. 2d DCA 1984):
[W]here ... a party alleges excusable neglect, a motion to set aside a
default must be made within a reasonable time not more than one
year after the order is entered. Rule 1.540(b). Under this rule, the
wife's motion was not untimely as a matter of law, since only
approximately three and one-half months had elapsed between the
default order and the motion to set aside the default.
See also. Roberts v. Safeway Insurance Co., 610 So.2d 700 (Fla. 3rd DCA 1992)(trial courts denial
of motion to vacate default judgment after a 63 day delay reversed); Atlantic Asphalt & Equipment,
Co., Inc., 578 So.2d 292 (Fla. 3d DCA 1991)(trial courts denial of motion to vacate default
judgment after a 63 day delay reversed); Cinkat Transp. Inc. v. Maryland Casualty Co., 596 So.2d
746, 747 (Fla. 3d DCA 1992)(In considering a motion to set aside a default, courts must evaluate
both the extent of the delay as well as the reasons for the delay.")(citations omitted).
15. Accordingly, Ms. Does 1.540(b) motion is timely, having been filed about 56 days
since the entry of the final summary judgment. Moreover, a delay of 10 days was caused by
undersigned counsel being unable to draft and file this motion immediately upon being retained due
to a heavy workload and the intervening Florida Bar Midyear meeting in Orlando. A delay of 56
12
days, with a good portion of the delay attributable to finding counsel around the holidays, waiting
for an appointment with counsel, and then waiting for counsel to file the instant motion,
demonstrates due diligence.
Conclusion As to Rule 1.540(b) Argument
16. In the instant case, Ms. Doe has clearly shown: (1) excusable neglect; (2) a
meritorious defense to the opposing party's claims; and (3) has exercised due diligence in obtaining
relief after learning of the final judgment. See Somero, supra; Allstate Ins. Co. v. Ladner, supra.
Accordingly, the Court should cancel the sale and vacate the summary final judgment entered
against Ms. Doe and grant her leave to file a response within 20 days thereafter.
All Rights Reserved
Page 17 of 18
The Final Summary Judgment Should be Set Aside
Pursuant to Section 702.07, Florida Statutes (2009)
17. Section 702.07, Florida Statutes (2009), provides:
Power of courts and judges to set aside foreclosure decrees at any
time before sale. The circuit courts of this state, and the judges
thereof at chambers, shall have jurisdiction, power, and authority to
rescind, vacate, and set aside a decree of foreclosure of a
mortgage of property at any time before the sale thereof has been
actually made pursuant to the terms of such decree, and to dismiss the
foreclosure proceeding upon the payment of all court costs.
(Emphasis added).
18. Although there are only ten or so reported cases, Section 702.07 has been utilized on
more than one occasion to allow a party to amend their pleadings shortly before a foreclosure sale,
in effect vacating the prior judgment. See Nobani v. Barcelona Development Corporation, 655 So.
2d 250 (Fla. 5 DCA 1995)(noting that motion to substitute parties and motion to file a second
th
amended complaint that added new defendants . . . were in legal effect, orders that vacated the final
judgment of foreclosure) citing Grace v. Hendricks, 103 Fla. 1158, 140 So. 790 (1932) (court order
staying foreclosure sale and allowing defendant to amend answer was in legal effect an order
vacating the final decree of foreclosure).
19. While there is a relative dearth of case law expanding on the Courts authority under
Section 702.07, Florida Statutes, it appears that 702.07, by failing to provide criteria for the
exercise of the Courts discretion, the statute, in effect, provides greater discretion to vacate and set
aside a summary final judgment than might otherwise be allowed by the more regulated discretion
exercisable pursuant to Rule 1.540(b). See J. M. Realty Inv. Corp. v. Stern, 296 So. 2d 588 (Fla.
3 DCA 1974)(Fla. Stat. 702.07, F.S.A., which was relied upon by defendant-appellant to set
rd
aside the judgment of foreclosure, is within the discretion of the trial judge and appellant has failed
to demonstrate an abuse thereof.); Nobani, supra; Grace, supra; But cf. Sterling Factors Corp. v.
U.S. Bank Natl Assoc., 968 So. 2d 658 (Fla. 2d DCA 2007)(failure by court to address whether trial
court may have had authority under 702.07 to vacate voidable order that was not subject to being
vacated pursuant to Rule 1.540(b)).
20. Based upon the facts set forth throughout this motion, it is urged that the Court would
be well within its discretion under 702.07 to cancel the sale and vacate and set aside the summary
judgment and allow Ms. Doe 20 days to file a response to the Complaint..
WHEREFORE, the Defendant, ANNABELLE LEE DOE, prays this Honorable Court to
cancel the sale and vacate the summary final judgment entered against her and grant her leave to file
a response to the Complaint within 20 days thereafter.

All Rights Reserved
Page 18 of 18
I HEREBY CERTIFY that a copy of the foregoing on the 8 day of February 2010, has been
th
delivered to John Dewey, Esquire, Dewey, Cheatum & Howe, LLP, Attorneys for Plaintiff, by
United States Mail to 1 Main Street, Ste. 666, Tampa, Florida 90210, and by Facsimile Transmission
to (813) 555-5555.
_______________________________________
STEVEN P. COMBS
YOUSEFF KHANACHET
Florida Bar No. 69351
Telephone (904) 359-5505
Facsimile (904) 359-5506
Counsel for the Defendant, ANNABELLE LEE DOE
VERIFICATION BY ANNABELLE LEE DOE
STATE OF FLORIDA
COUNTY OF DUVAL
acknowledgments, personally appeared ANNABELLE LEE DOE, who, being by me first duly
sworn, deposes and says: That she is a defendant in the above-styled cause, that she has read the
foregoing and that the facts and information contained therein are true and correct.
___________________________________
ANNABELLE LEE DOE
Sworn to and subscribed before me Stamp:
this 28 day of February, 2010.
th
_______________________________
X Produced driver's license
All Rights Reserved
CASE NO.: 09-CA-555555
NATIONAL CITY BANK,
Plaintiff,
vs.
MICHAEL J. FOX,
Defendants.
_____________________________________/
NOTICE OF SPECIAL APPEARANCE TO CHALLENGE JURISDICTION OVER THE
PERSON OF THE DEFENDANT AND MOTION TO QUASH SERVICE OF PROCESS
Comes now, Defendant, MICHAEL J. FOX (hereinafter the Defendant/Cross-Defendant)
pursuant to Rule 1.140(b)(2), Florida Rules of Civil Procedure, and moves this Court to quash
service of process, and in support thereof states:
1. The Defendant makes this special appearance solely to challenge jurisdiction over
his person based upon the purported personal service of process of the Cross-Claim filed against him
filed by Defendant/Cross-Plaintiff, Neighborhood Socialist Homeowners Association, Inc.
(Defendant/Cross-Plaintiff).
2. On February 18, 2010, the Defendant/Cross-Plaintiff filed a Return of Service signed
by David Ratfink of Last Choice Process, Inc., in which Mr. Ratfink affirmed that he served the
Defendant/Cross-Defendant on the 5 day of February 2010, at 4:45 p.m. The Return of Service
th
states that the Defendant/Cross-Defendant was to be served on Micheal J. Fox, 111 Fern Road,
Lastville, NJ 55555. However, Mr. Ratfink fails to state the place of service in the Return of
Service.
3. Section 48.194(1), Florida Statutes, regarding Personal service outside state,
provides that:
Except as otherwise provided herein, service of process on persons
outside of this state shall be made in the same manner as service
within this state by any officer authorized to serve process in the state
where the person is served. No order of court is required. An
affidavit of the officer shall be filed, stating the time, manner, and
place of service. The court may consider the affidavit, or any other
All Rights Reserved
Notice of Special Appearance to Challenge
Jurisdiction -- Failure to Adhere to Return of
Service Requirements for Service Outside of
Florida
Page 2 of 3
competent evidence, in determining whether service has been
properly made. . . .
(Emphasis added).
4. The Return of Service filed with the Court fails to comply with Section 48.194.
Specifically, the process server failed to execute an affidavit stating the time, manner and place of
service as required by the statute. This constitutes a fundamental flaw in the return of service.
See Pina v. Simon-Pina, 544 So.2d 1161 (Fla. 5 DCA 1989). Additionally, the Return of Service
th
is defective inasmuch as it fails to clearly state the place of service. See Section 48.194, Fla. Stat.
5. These defects are of special concern to the Defendant/Cross-Defendant in as much
as the service is purported to have occurred in the middle of a blizzard when the ingress and egress
to the location where Defendant/Cross-Defendant was then located in New Jersey would have been
blocked. The Defendant/Cross-Defendant affirms the he was not personally served as set forth in
the Return of Service. (An affidavit will be filed to substantiate this in the near future.)
6. Accordingly, the Return of Service signed by David Ratfink of Last Choice Process,
Inc., should be quashed pursuant to Section 48.031(1)(a), Florida Statutes, and this Honorable
Court, therefore, has no jurisdiction over the person of the Defendant.
WHEREFORE the Defendant hereby moves this Court to quash service of process and
require Defendant/Cross-Plaintiff to properly serve Defendant before this matter moves forward.
_______________________________________
STEVEN P. COMBS
Telephone (904) 359-5505
Facsimile (904) 359-5506
Counsel for the Defendant, MICHAEL J. FOX
All Rights Reserved
Page 3 of 3
I HEREBY CERTIFY that a copy of the foregoing on this 29 day of February, 2010, has
th
Am A. Lawyer, Esquire
Law Offices of David N. Goliath, P.A.
1 North Oak Peninsula Ave., Suite 4
Plantsville, Florida 55555
Attorney for Plaintiff
Sean Connery, Esquire
1 Planting Mountain Ave., Ste. 2
St. Lawrence, Florida 55555
Attorney for Defendant/Cross-Plaintiff

______________________________________
Attorney
All Rights Reserved
Dewey Helpum & Howe
Attorneys, Lawyers, Counselors and Cool People at Law
112 Right Way Avenue
Goodsville, Floirda
Telephone (555) 555-5555
Telefax (555) 555-5556
March 1, 2010
VIA U.S. MAIL CERTIFIED
RETURN RECEIPT REQUESTED
Julia Roberts, Esquire
Pitt, Clooney, & Pacino, P.A.
1000 Rodeo Drive
Hollywood, California 77777
RE: HSBC Bank USA, National Association vs. John Doe, et al.
Case Number: XXXX-XX-XXXXX
Dear Ms. Roberts
As you know, this firm has the pleasure of representing Mr. Doe in the above referenced
matter. I write this letter to you in a good faith attempt, pursuant to the Fourth Judicial Circuits
Administrative Order 88-2, to resolve your objections and obtain your client's response to
Defendant's First Request for Production to Plaintiff which was served on April 28, 2009. On May
19, 2009, you filed motion for extension of time with the Court requesting "additional time to
consult with your client and review the requested documents". Nearly six months passed until we
received your objections to requests numbered three, four, five and six.
In order to avoid further conflict regarding this issue we would like to narrow the items to
be discovered to the documents or computer records: (1) that show that the Plaintiff trust owns the
note, including records relating to acquisition of the note; (2) that show the chain of assignments
from the originator to the Plaintiff trust; (3) that show that the note was delivered to the trust through
special purpose vehicles or bankruptcy remote entities; (4) that show that securities litigation has
been instituted against any party (other than borrowers signing the notes collateralized as part of the
trust) to recapture losses to the Plaintiff trust; and (5) a copy of the pooling and servicing agreement
or any other such document that governs the Plaintiff trust.
We are hopeful that limiting the scope of our request will resolve your objections as to the
oppressive nature of our original request. Also, for your convenience, we are amenable to receiving
discovery in a Adobe PDF electronic format.
Please be advised that if you fail to reply to this letter and produce the requested documents
within 10 days of this letter, we will file a Motion to Compel Discovery seeking attorneys fees and
costs. However, if you agree to produce the documents requested, we would, of course, be willing
to discuss providing you additional time in which to comply.
All Rights Reserved
Good Faith Discovery Resolution Letter for Fourth Judicial Circuit (Duval,
Clay and Nassau) per Admin. Order 88-2
Thank you for your consideration in this matter.
Very truly yours,
Richard Gere, Esq.
Florida Bar No.:
Firm Name
Firm Address
Telephone:
Facsimile:
Counsel for Defendant

All Rights Reserved

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