IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT, IN AND FOR HIGHLANDS COUNTY, FLORIDA CITMORTGAGE, INC.

, Plaintiff, v. JAMES A. MOTIL, JR., et al. Defendants. _____________________________/ DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, HIS MOTION TO STRIKE AFFIDAVITS, AND HIS MOTION FOR DISMISSAL Comes now the Defendant, James A. Motil, Jr., (hereafter, Mr. Motil) to RESPOND and OBJECT to Plaintiffs untimely Motion for Summary Judgment (hereafter, Plaintiff's Motion) and Plaintiff's affidavits identified in its "Notice of Filing" served 13 July 2011, and to MOVE the Court to: 1) deny Plaintiff's Motion; 2) dismiss Plaintiff's unverified Complaint with prejudice; 3) grant summary final judgment for Mr. Motil against Plaintiff; 4) strike Plaintiff's Affidavits; for 5) findings of fact and conclusions of law; 6) taxable costs; and 7) for such other and further relief as is proper, based upon the Court's record and Mr. Motil's "Affidavit in Support" of his motions filed concurrently herewith, and as grounds therefore states: 1. Plaintiff's Complaint, under color of law, presumes to be an action to foreclose on the residential real estate property owned by Mr. Motil filed by an unidentified plaintiff who has a) failed to sufficiently allege jurisdiction; b) failed to show its standing and capacity to sue; and c) has failed to state a cause of action upon which this Court can grant any relief. 2. 3. To date, Plaintiff has failed to show that it has any right to foreclose on Mr. Motil's home. The Complaint alleges: "Plaintiff owns and holds the note and subject mortgage"1 as of the CASE NO. 09 000 655-GCS

6th of May 2009, the date the Complaint was filed. But, the record shows that Plaintiff did not own and hold either document at the inception of this case. The Complaint, itself, contradicts this allegation by saying: "The original Note ... is not in the custody or control of Plaintiff,"2 and exhibits attached to the Complaint negate both of Plaintiff's causes of action. 4. The Complaint alleges: "Plaintiff holds the mortgage by virtue of an Assignment"3 as of
1 Complaint, Count I at page 3, 5 and Form 1.944 of Fla. R. Civ. Pro. (2010) 2 Complaint, Count II at page 5, 3. 3 Complaint, Count I at page 2, 3. Helpful comments or questions send to: robchaney@yahoo.com

the 6th of May 2009. But, the record shows that the purported assignment did not exist at the inception of this case, and no "assignment" is attached to the Complaint. 5. The Complaint alleges: "Plaintiff has the right to enforce the instrument by virtue of the Assignment of the Mortgage and Note to Plaintiff"4 as of the 6th of May 2009. But, the record shows that the purported assignment did not exist at the inception of this case, and no "assignment" is attached to the Complaint. 6. The Complaint alleges: "Plaintiff has the right to enforce the instrument by virtue of the Assignment of the Mortgage and Note to Plaintiff"5 as of the 6th of May 2009. This is very strange because the record does not show that MERS E V E R owned or possessed the Note. As the latin maxim says: "Nemo dat qui non habet." ("He who hath not cannot give.") Which means that MERS can not give Plaintiff a note which MERS never owned nor possessed. This, necessarily, also means that MERS can not assign any valid mortgage rights to anyone. 7. 8. 9. 10. 11. 12. 13. 14. MERS can not, and never could, foreclose on Mr. Motil's home. Therefore, MERS could The record shows that the alleged note has always been an "unsecured" debt. Plaintiff is bound by the allegations of its Complaint. Plaintiff's name does not appear on either the alleged "Note" or the alleged "Mortgage." The Complaint does not allege that Plaintiff "owns and holds" either of the subject The Complaint does not allege that Plaintiff is suing on behalf of someone else. Plaintiff's identity, capacity and standing-to-sue are not identified well enough in the Attached to Plaintiff's "Affidavit in Support of Motion for Summary Judgment" is a copy of not, and can not, "assign" a right to foreclose which it never possessed.

documents "by endorsement."

Complaint to confer jurisdiction to this Court. a purported "Assignment of Mortgage" apparently executed on 15 July 2009, two months after the Complaint was filed (hereafter,"Assignment"). 15. No authentification for the Assignment, or the alleged Note or the alleged Mortgage has been alleged or filed herein. The authenticity and enforceability of the alleged Note and the alleged Mortgage were raised as affirmative defenses in Mr. Motil's First Amended Answer.6 16. No "original" Assignment has been filed herein.

4 Complaint, Count II at page 6, 8. 5 Complaint, Count II at page 6, 8. 6 See Defendant's First Amended Answer, 25, 26, 27, 28, 31, 32 and 34. Helpful comments or questions send to: robchaney@yahoo.com

17. 18.

Neither the Complaint nor the record identifies, or authenticates, anyone who ever had any Plaintiff's exhibits show that the purported original "lender," Household Finance

valid foreclosure-enforcement rights which were, legally, derived from Mr. Motil. Corportion III ("HFC III") was not granted a mortgage by Mr. Motil. HFC III was not the "mortgagee" herein, never possessed any mortgage "rights" and never assigned a mortgage to anyone herein. 19. Plaintiff, and many others in the banking/mortgage industry, appear to have a policy in which the mortgage company extends loans to people in exchange for promissory notes. As part of that policy, these companies ask homeowners to grant a mortgage to Mortgage Electronic Registration Systems, Inc. ("MERS") who, regulary, becomes the purported "mortgagee" therefrom. 20. 21. The purpose of this policy is to speed up the money-making process by avoiding the time, This policy has allowed the banking/mortgage industry to make huge profits at the expense trouble and taxes of filing a notice-of-assignment every time a note and/or mortgage changes hands. of millions of homeowners and caused a hefty loss of revenue for local government recording offices. By failing to duly record and perfect said mortgage-assignments, homeowners, title insurance companies and Recording Offices are left in the dark about the ownership chains-of-title which are so essential to the American system of property ownership, our economy and our system of justice. 22. MERS has no office in Highlands County and its system of recording (or "registering") documents, electronically, leaves a lot to be desired. In my case, I went to the MERS website looking for the chain of title for my home loan. All I could find was a single page with two entries: 1) "Servicer: Citimortgage, Inc"; and 2) "Investor: This investor has chosen not to display their information."7 See a copy attached hereto as Exhibit A. 23. When I submitted interrogatories to Plaintiff seeking to discover the chain of title as to who owned what and when, the Plaintiff answered: "The only relevant times are on the date of filing the foreclosure and any time thereafter."8 This is a very convenient and self-serving answer, since Plaintiff's own exhibits show that it did not own either the note or the mortgage prior to filing the Complaint. 24. Although Plaintiff has answered interrogatories indicating that the Note's chain-of-title includes four persons,9 Plaintiff's exhibits show that the purported mortgagee, MERS, only assigned the alleged mortgage to one entity, the Plaintiff, and that was after the inception of this case. 25. An "assignment of mortgage" is not a negotiable instrument.

7 https://www.mers-servicerid.org/sis/search 8 Answer to Interrogatory 2 of Plaintiff's "Answers to Defendant's First Set of Interrogatories." NOTE: The record shows that Steven Ellison served said Answers from Florida one month before they were notarized in Texas. 9 Answer to Interrogatory 4 of Plaintiff's "Answers to Defendant's First Set of Interrogatories." Helpful comments or questions send to: robchaney@yahoo.com

26.

The Official Records of Highlands County show no pertinent assignments, and Mr. Motil

did not receive notice of any such assignments prior to the inception of this case. Plaintiff has stated that the Assignment: "is the only assignment that we believe is of record in Highlands County."10 27. 28. The Complaint does not allege that MERS was authorized to assign the subject mortgage. Apparently, the alleged Mortgage had some value to MERS, because the Assignment states

that MERS "does assign" to Plaintiff "the described mortgage, together with certain note(s)" for "Valuable Consideration." In other words, Plaintiff (the alleged assignee) gave some valuable consideration to MERS (the alleged assignor) in exchange for the Assignment of the Mortgage and the Note. A contract which is void at its inception, remains void no matter how many times it is purportedly assigned. 29. This is strange, since MERS did not give any money or valuable consideration to Mr. Motil on 6 September 2006 in exchange for the Mortgage. Without exchanging something valuable, there is no enforceable contract.11 Plaintiff's Purported Note is Not a "Negotiable Instrument" 30. Although the Compliant alleges a promissory note, it does not allege said note to be a "negotiable instrument" and, in fact, said note does not appear to be a "negotiable instrument." Even if the note is determined to be a negotiable instrument, Plaintiff does not appear to be a "holder-in-duecourse" because Plaintiff did not own the documents prior to filing its Complaint and Plaintiff alleges in its Complaint that the Note Copy was already in default when it purportedly obtained the note and mortgage two months after this case was filed. 31. Someone who knowlingly takes a negotiable instrument after it is overdue, is not a holderin-due course who is entitled to enforce the instrument. Evidently this is so, because a purchaser of an overdue instrument can not say they were damaged from the maker's default. 32. Plaintiff fails to allege that the Note is a negotiable instrument. Not every promissory note is a negotiable istrument. The Note herein does not appear to be a promise to pay a "fixed amount of money."12 The Note refers to a "mortgage" dated "the same date as this Note."13 Said mortgage purports to make the mortgagor pay "Funds" into an escrow account for the payment of "taxes and
10 Answer to Interrogatory 14 of Plaintiff's "Answers to Defendant's First Set of Interrogatories." 11 See Mr. Motil's Affidavit filed concurrenly herewith at page 1, 6 and UCC, F.S. 679.2031 (1), (2) and (2)(a).

12 See F.S. 673.1041 (1) 13 Complaint's Exhibit A, page 2, paragraph number 10.
Helpful comments or questions send to: robchaney@yahoo.com

assessments and other items."14 Paragraph 9 of the Mortgage mentions "attorneys' fees" among other things which "shall become additional debt of Borrower secured by this Security Instrument." This means the amount of money is NOT "fixed." Said Note fails, further, to meet the requirements of a negotiable instrument in that it refers to the Mortgage (another "undertaking or instruction") which requires the mortgagor to do certain acts (such as "occupy" the property15) "in addition to the payment of money." Further, the alleged Mortgage is a legal nullity. 33. Pursuant to the Complaint and Plaintiff's exhibits, the rights represented by the Note Copy and the Mortgage Copy were never present in the same person. Since they were never "together," they were "split" ab initio (from the beginning). The Mortgage Copy was made out to "Mortgage Electronic Registration Systems, Inc." ("MERS") Bifurcation renders The Note "unsecured" and The Mortgage unenforceable against Defendant. Restatement of the Law, Third, Property-Mortgages, 5.4 (c) says: "A mortgage may be enforced only by, or in behalf of, a person who is entitled to enforce the obligation the mortgage secures." "Comment: a." further says, in pertinent part: "When the right of enforcement of the note and the mortgage are split, the note becomes, as a practical matter, unsecured." 34. Plaintiff does not allege that it holds The Note by "transfer." Plalintiff does not allege that it MEMORANDUM OF LAW 35. 36. 37. Jurisdiction is called a "threshhold" issue, because a plaintiff can not come through the Plaintiff "Must be the owner/holder of the note as of the date of filing suit."16 "Endorsement in blank - where unsigned and unauthenticated, an original note is courthouse door until it properly alleges how the court has applicable jurisdiction. "purchased" said note

insufficient to establish that the plaintiff is the owner and holder of the note. Must have affidavits or deposition testimony establishing plaintiff as owner and holder [as of the date of filing suit]."17 38. "We recognize that the [United States] Supreme Court has found that standing is a threshhold test that, if satisfied, permits a federal court to proceed to the question of whether a plaintiff has a cause of action. Yet every court has an independent duty to review standing as a basis for jurisdiction at any time, for every case it adjudicates."18 [Citations omitted.] 39. Rule 1.140(b) says: [A]ny ground showing that the court lacks jurisdiction of the subject

14 Complaint's Exhibit B, page 3, paragraph number 3. 15 A person can "maintain" and "protect" his property (the collateral) without occupying it.
16 Residential Foreclosure Bench Book, revised 14 July 2010, at page 6, 1. 17 Residential Foreclosure Bench Book, revised 14 July 2010, at page 6, 1.(a)(1). 18 F.A.M.E.D. v. Apfel, et al., 194 F.3d 1227 (11th Cir. 1999) in the 4th pargraph of the "Discussion." Helpful comments or questions send to: robchaney@yahoo.com

matter may be made at any time." 40. Indeed, the United States Supreme Court has said: Without jurisdiction, a court cannot proceed at all in any cause, as jurisdiction is power to declare the law; when jurisdiction ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. Steel Company v. Citizens for a Better Environment, 523 U.S. 83, 118 S. Ct. 1003, 1998 U.S. LEXIS 1601, No. 96-643, at Head Note 10. 41. 42. CAPACITY to sue has not been alleged by Plaintiff in its Complaint. Plaintiff failed to Rule 1.110 (b) requires that a complaint include a short and plain statement of the grounds

follow the rules.19 upon which the courts jurisdiction depends.... By failing to plead in what capacity the Plaintiff brings suit and by failing to define or identify in any way the nature of its legal entity, the Plaintiff has not pled that it has the capacity to maintain suit before this Court. Thus, the Court has no subject matter jurisdiction to hear Plaintiff's case and its action should be dismissed. Rule 1.120 (a) says: It is ... necessary to aver the capacity of a party to sue or be sued ... to the extent required to show the jurisdiction of the court .... 43. The Complaint alleges on page 2 in paragraph 1: "This is an action in equity...." and "In equity, case relief can only be granted on allegations and proof, and allegations admitted or proved are the only premises which will support a decree."20 44. 45. In this case, Plaintiff's causes of action are built upon the allegations made in its Complaint The issue of capacity to sue may be raised by motion to dismiss where the defect appears

and Plaintiff can not prove its case when its own exhibits negate the allegations of the Complaint. on the face of the complaint. Hershel California Fruit Products Co. v. Hunt Foods, 111 F. Supp. 603 (1975), quoting Coburn v. Coleman, 75 F. Supp 107 (1974); Klebano v. New York Produce Exchange, 344 F. 2d (2nd Cir. 1965). 46. STANDING to sue has been alleged by the unidentified Plaintiff in its Complaint, however, controlling exhibits attached to its Complaint negate Plaintiff's allegation of standing to sue. The exhibits (a purported note and mortgage) attached to the Complaint do not contain Plaintiff's name. Although Count II (at pargraph 8 of the Complaint) alleges that Plaintiff has a "right to enforce" the alleged note "by virtue of" an "Assignment of the Mortgage and Note to the Plaintiff," no copy of said
19 All "Rules" quoted are from the Florida Rules of Civil Procedure (2010) unless otherwise stated. 20 Rhodes v. Schofield, 82 So. 2d 236 Helpful comments or questions send to: robchaney@yahoo.com

assignment is attached to the Complaint. Attaching a copy of an unauthenticated assignment to a "Notice of Filing" is not sufficient to establish standing, especially since the purported assignment says on its face that it was executed on 15 July 2009, a date which is more than two (2) months AFTER the Complaint was filed on 6 May 2009. The record shows Plaintiff had no standing-to-sue on the filing date, and this Court is bound to heed the rulings of Florida's Second District Court of Appeals like this pertinent one: "[P]laintiff's lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed."21 [Emphasis added.] 47. NECESSARY DOCUMENTS showing Plaintiff's interest in the matter are missing from

the Complaint, thus it fails to state a cause of action. Rule 1.210 (a) says: All ... documents ... material to the pleadings, shall be incorporated in or attached to the pleading. [Emphasis added.] 48. NO MATERIAL DOCUMENT is attached to the Complaint which shows that Plaintiff

"owned" the alleged note and mortgage at the inception of this case. The Complaint's exhibits do not support the Complaint's allegation of ownership. This Court is bound to make decisions in accord with the rulings of the Florida Supreme Court such as this pertinent one: "Exhibits attached to a pleading become a part of the pleading for all purposes. See Fla. R. Civ. P. 1.130(b). If an exhibit facially negates the cause of action asserted, the document attached as an exhibit controls and must be considered in determining a motion to dismiss."22 [Emphasis added.] 49. To date, according to the record, Plaintiff has not shown that it is, legally, the owner and

holder of either the NOTE or the MORTGAGE. MOTION TO STRIKE AFFIDAVITS 50. Mr. Motil moves the Court to strike the following affidavits listed in Plaintiff's "Notice of Filing" served 13 July 2011: 1) Affidavit in Support of Motion for Summary Judgment; 2) Affidavit of Cost; 3) Affidavit of Attorney as to Time Expended; and 4) Affidavit of Reasonable Attorneys' Fees, and as grounds therefore states: I. As to the AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT: 51. Paragraph 4 mentions an "Exhibit A," but no "Exhibit A" is attached to my copy nor to the original on file with the Court.
21 Progressive Exp. Ins. v. McGrath Comm. Chiropractic, 913 So.2d 1281 at 1285 (Fla. 2nd DCA 2005). 22 Andre Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. Supreme Court 2000). Helpful comments or questions send to: robchaney@yahoo.com

52. 53. 54. 55. 56. 57. added.] 58.

No certified copies of any business records are attached to the Affidavit. The Affiant, Sherry Romine, makes no statement that she has read the Affidavit. Nor does The Affidavit does not show that the Affiant makes her statements under penalty of perjury. The Affiant does not say that she is either an "employee" or an "officer" of Plaintiff. The Affiant does not say that she is a "custodian of business records," and she fails to show The Affiant makes statements "Based on my business records review...." [Emphaasis The Affiant mentions "interest," but no interest rate. Nor does she state whether said

she say that the statements of fact therein are "true."

"Analysts" are usually independent contractors, not employees. that she has "personal knowledge" of the facts in the Affidavit.23

interest is simple or compound. Nor does she say whether the interest calculation is based upon a 360or a 365-day time period. 59. 60. The Affiant mentions a "notice of default," but fails to mention a "notice of acceleration." The Affiant mentions an amount "owed on the loan" based upon her review of a missing

Exhibit A. Said amount is for $89,547.13. This amount is $33,547.13 more than the original principal amount of the alleged Note. According to the alleged Mortgage, certain items--such as those listed in pargraph 6--become "additional debt" secured by this "Security Instrument." 61. This brings up two important issues of fact and law: 1) The alleged note is not a negotiable instrument, because it is not a promise to pay a sum certain (a fixed amount); and 2) "Additional debt" (an increase in principal) requires the payment of additional documentary taxes which Plaintiff has neither alleged nor proved. "[P]romissory notes for which documentary taxes have not been paid are, as a matter of law, uneforceable by any Florida court."24 62. The best that Affiant says is that she looked at records made by some unidentified persons and she believes those records are true. If she "believes," then she does not "know" they are true. If she does not "know," then she has no personal knowledge. II. As to the AFFIDAVIT OF ATTORNEY AS TO COSTS: 63. The Affiant, Talina Bidwell, makes no statement that she has read the Affidavit. Nor does she say that the statements of fact therein are "true."
23 Residential Foreclosure Bench Book, revised 14 July 2010, at page 30, 6. 24 Somma v. Metra Electronics Corp., 727 So.2d 302 (Fla. 5th DCA, 1999) at 305. Helpful comments or questions send to: robchaney@yahoo.com

64. 65. 66.

The Affidavit does not show that the Affiant makes her statements under penalty of perjury. The Affiant does not lay a foundation as to why the alleged "costs" are taxable. The Affiant does not lay a foundation as to why the alleged costs were "reasonable and

necessary," nor does she establish exactly where any contract allows for attorneys fees herein. III. As to the Affidavit of Attorney as to Time Expended 67. The Affiant, Talina Bidwell, makes no statement that she has read the Affidavit. Nor does

she say that the statements of fact therein are "true." 68. 69. The Affidavit does not show that the Affiant makes her statements under penalty of perjury. The Affiant does not lay a foundation as to why or how their is an "indebtedness due to

Citimortgage from James A. Motil, Jr." 70. The Affiant does not lay a foundation as to why the alleged costs were "reasonable and

necessary," nor does she establish exactly where any contract allows for attorneys fees herein. 71. Mr. Motil moves the Court to strike those paragraphs of Plaintiffs Motion for Summary

Final Judgment of Foreclosure which seek to strike his "Affirmative Defenses" as time-barred, immaterial and prejudicial to Mr. Motil. 72. 73. Mr. Motil served and filed his "First Amended Answer on 17 June 2010.25 Florida Rule of Civil Procedure 1.140(b) says: "the objection of failure to state a legal

defense in an answer ... shall be asserted by motion to strike the defense within 20 days after service of the answer...." [Emphasis added.] 74. Plaintiff's Motion at paragraphs 3, 4, 5, 6, 7 and 8 all allege that Mr. Motil's Affirmative

Defenses in his Answer fail to state legal "defenses" without any affidavits to rebutt the individual defenses. 75. Plaintiff's Motion is not timely filed, because it was served and filed in April 2011--over

nine (9) months too late. To allow such an untimely motion would be prejudicial to Mr. Motil.
25 Plaintiff's Motion for Summary Final Judgment of Foreclosure wrongly says "June 17, 2009" at 2, page 2. Helpful comments or questions send to: robchaney@yahoo.com

76.

Mr. Motil moves the Court for an extension of time to respond to any of said paragraphs, if CONCLUSION

the Court does not strike them. 77. The Complaint alleges: "Plaintiff has the right to enforce the instrument by virtue of

the Assignment of the Mortgage and Note to Plaintiff"26 as of the 6th of May 2009. But, the record shows that the purported assignment did not exist at the inception of this case, and no "assignment" is attached to the Complaint. Thus, plaintiff did not--and still does not--have the legal rights (it claims to have had) required as a matter of law to: give notices of default; give notices of acceleration; to demand attorneys' fees; or to bring an action to foreclose on Mr. Motil's home. WHEREFORE, Defendant, James A. Motil, Jr., moves the Court to: 1) deny Plaintiff's Motion; 2) dismiss Plaintiff's unverified Complaint with prejudice; 3) grant summary final judgment for Mr. Motil against Plaintiff; 4) strike Plaintiff's Affidavits and motions to strike Mr. Motil's affirmative defenses; for 5) findings of fact and conclusions of law; 6) for taxable costs; and 7) for such other and further relief as is proper. Respectfully submitted by: James A. Motil, Jr., Defendant, Self-Represented ____________________________________ 113 S DELANEY AVE, AVON PARK FL 33825-3930 - Telephone: (863) 443-1061 CERTIFICATE OF SERVICE I, the undersigned, certify that a copy of the foregoing document was sent via FedEx, overnight, to the person(s) listed below on the 30th day of July 2011: STEVEN ELLISON BROAD AND CASSEL 1 NORTH CLEMATIS ST STE 500 WEST PALM BEACH FL 33401-5552 Certified by: James A. Motil, Jr. __________________________________ 113 S DELANEY AVE, AVON PARK FL 33825-3930, Telephone (863) 443-1061
26 Complaint, Count II at page 6, 8. Emphasis added. Helpful comments or questions send to: robchaney@yahoo.com

Telephone: (561) 832-3300 FAX: (561) 655-1109

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NOTES It appears from the Complaint and Plaintiff's exhibits that Plaintiff could not have validated its ownership of the debt in March, April or May of 2009, because it's own allegations show it did not own the debt. Not a negotiable instrument because: 1) not a set amount (additional debt), 2) requires more than just payment of money (occupy, mortgage insurance, etc.) Submitting documents dated prior to filing complaint-- Judge Cowden would not allow me to ask questions because dates before 6 May 2006 were "irrelevant." not fair. The Assignment says MERS received "valuable consideration," but I never got any. The Court is a trier of fact. The Court is supposed to find the truth. If Plaintiff had a legitimate cause of action, it would not have to commit fraud. Attorneys are supposed to report fraud, even if it is their client who is committing the fraud. If a plaintiff can not, or will not, show how it legally obtained ownership of a promissory note, then that plaintiff is no better than, and has no more rights than, a thief who stole the note.

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