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 Ann IN THE CIRCUIT COURT OF THE ____________ JUDICIAL
CIRCUIT
01/14/11 at
07:25 PM
IN AND FOR _____________ COUNTY, ______________
{State} CIVIL

DIVISION

__________________________ AS TRUSTEE OF ___________

_____________________________, ASSET BACKED

PASS-THROUGH CERTIFICATES, SERIES CASE NO:

______________

20__-xx UNDER THE POOLING & SERVICING

AGREEMENT DATED AS OF AUGUST __, 20__,

WITHOUT RECOURSE.

Plaintiffs

v.

____________ and _____________

Defendants.

__________________________________________________
_________________

___________

DEFENDANT’S MEMORANDUM IN OPPOSITION TO

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Defendant___________________________ now files this

Memorandum in Opposition to Plaintiff‟s Motion for Summary
Judgment in the above-captioned case. Fla. R. Civ. P. 1.510(a).
For the reasons set forth below, Defendant contends that Plaintiff
summary judgment motion should be overruled in its entirety.
Page 1 of 6

LAW AND ARGUMENT

Defendant states that Plaintiff is not entitled to summary judgment

because Plaintiff, as moving party, has not met its initial summary
judgment burden to show conclusively the complete absence of
any genuine issue of material fact and its entitlement to judgment
as matter of law. Fla. R. Civ. P. 1.510(c); Dade Cnty.

School Bd. V. Radio Station WQBA, 731 So.2d 638, 643 (Fla.
1999).

(a) ThePlaintiff is not entitled to summary judgment because

there are numerous unresolved questions of fact raised by
Defendants Answer.

Generally, "[a] movant is entitled to summary judgment 'if the

pleadings, depositions, answers to interrogatories, admissions,
affidavits, and other materials as would be admissible in evidence
on file show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of
law.' " Estate of Githens ex rel. Seaman v. Bon Secours-Maria
Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d
DCA 2006) (quoting Fla. R. Civ. P. 1.510(c)). But if "a plaintiff
moves for summary judgment before the defendant has filed an
answer, 'the burden is upon the plaintiff to make it appear to a
certainty that no answer which the defendant might properly serve
could present a genuine issue of fact.' “BAC Funding Consortium
Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936, 937-38 (Fla.
2d DCA 2010) (quoting Settecasi v. Bd. of Pub. Instruction of
Pinellas County, 156 So. 2d 652, 654 (Fla. 2d DCA 1963)). Thus,
the standard to establish entitlement to summary judgment
requires the plaintiff to establish that "the defendant could not
raise any genuine issues of material fact if the defendant were
permitted to answer the complaint." Id. at 938. See also Howell v.
Debb, Case No. 2D09-3664 Opinion filed May 28, 2010, (2nd DCA
2010).
Page 2 of 6

(b)Plaintiff has failed to submit sworn authentication evidence

In support of its documentary evidence

Under Florida law, the submission of documentary evidence in

support of a summary judgment motion which is not properly
sworn or certified is nothing more than unverified hearsay and
cannot be considered by the reviewing court. Nichols v. Preiser,
849 So.2d 478, 481 (Fla. App. 2d DCA 2003); First Union Nat.
Bank of Fla. v. Ruiz, 785 So.2d 589, 591 (Fla. App. 5th DCA
2001); Bifulco v. State Farm Mut. Auto. Ins., 693 So.2d 707,
710 (Fla. App. 4th DCA 1997).

In this case, the documents attached to Plaintiff‟s summary

judgment motion are not sworn to or certified in any manner
whatsoever. They are not accompanied by any affidavit of a
records custodian or other proper person attesting to their
authenticity or correctness. They are, without question, unverified
out-of-courtwritings offered to prove the truth of the matter
asserted, i.e., Defendant‟s alleged liability to Plaintiff. Such
unverified hearsay “does not satisfy the proceduralrequirements of
Florida Rule of Civil Procedure 1.510(e)”, and thus “the trial court
[cannot] properly consider them in deciding a motion for
summary judgment.”

Nichols v. Preiser, supra, 849 So.2d at 481.

Page 3 of 6

Because Plaintiff JAD has offered only unverified hearsay

evidence in support of its liability claims, Nichols v. Preiser,
supra, 849 So.2d at 481, Defendant submits that Plaintiff is not
entitled to summary judgment in this case.

(c) PlaintiffJAD has failed to conclusively negate Defendant’s

affirmative defenses In Florida, “[t]he law is clear that where a
defendant pleads an affirmative defense and the plaintiff does not,
by affidavit or other sworn evidence, negate or deny that defense,
the plaintiff is not entitled to summary judgment.” Maung v.
National Stamping, LLC, 842 So.2d 214, 216 (Fla. App. 3rd
DCA 2003).

In this case, Defendant raised affirmative defenses in its

responsive pleading. Plaintiff‟s Motion ignores these affirmative
defenses. Plaintiff has submitted no documentary evidence which,
as noted above, is insufficient to conclusively disprove any of the
affirmative defenses. Maung v. National Stamping, LLC, supra,
842 So.2d at 216.

Defendant submits that Plaintiff is not entitled to summary

judgment in this case.

(d) Plaintiff has failed to comply with the newly prescribed

requirement for verification of pleadings.
Page 4 of 6

First, rule 1.110(b) was amended to require verification of

mortgage foreclosure complaints involving residential real
property. No. Sc09-1579 In Re: Amendments to The Florida
Rules of Civil Procedure - Form 1.996 (Final Judgment of
Foreclosure), (February 11, 2010), Revised On Rehearing, Per
Curium. The pleadings must be accompanied by a signed
statement as follows:

“When filing an action for foreclosure of a mortgage on

residential real property the complaint shall be verified. When
verification of a document is required, the document filed shall
include an oath, affirmation, or the following statement:
―Under penalty of perjury, I declare that I have read the
foregoing, and the facts alleged therein are true and correct to the
best of my knowledge and belief.”
The primary purposes of this amendment are (1) to provide
incentive for the plaintiff to appropriately investigate and verify
its ownership of the note or right to enforce the note and ensure
that the allegations in the complaint are accurate; (2) to conserve
judicial resources that are currently being wasted on
inappropriately pleaded ―lost note counts and inconsistent
allegations; ‖ (3) to prevent the wasting of judicial resources and
harm to defendants resulting from suits brought by plaintiffs not
entitled to enforce the note; and (4) to give trial courts greater
authority to sanction plaintiffs who make false allegations.

CONCLUSION

For the above-mentioned reasons, Defendant states that Plaintiff„s

Motion for Summary Judgment should be overruled in its entirety.

Respectfully submitted.

____________________________

__________________

Defendant, pro se

0000 Shell Isle Rd., Suite 0000

_____________, Fl. 00000

Page 5 of 6

(000) 000-0000

(000) 000-0000 (Facsimile)

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent via

facsimile and regular mail to __________, Esq., 00000 Biscayne Blvd., Ste. 000,
_________

Florida 33161 this ____ day of _________, 20__.

______________________________

______________________

Defendant, pro se

Page 6
 Ann An excellent Guide to Foreclosure Defense

10/16/10 at http://www.scribd.com/doc/39483420/Guide-to-Defending-Your-
01:00 PM Florida-Foreclosure-2009

Ann A Killer Qualified Written Request

---------------------------------
10/03/10 at http://www.scribd.com/doc/27613349/Killer-Qwr-2
08:58 AM
Answer with 27 Affirmative Defenses

http://www.scribd.com/doc/36645226/Foreclosure-Answer-With-
27-Affirmative-Defenses

A great source of foreclosure info and legal pleadings :

http://www.scribd.com/83jjmack,
http://www.scribd.com/winston2311

Cheryl Kalil How can John Cottrell sign as the Asst. Vice President to Mers, on
my mtg transfer to Deutsche Bank and also sign as Asst. Vice
09/28/10 at President to Saxon in other people's documents?? Is it true that
09:25 PM Deutsche Bank, Saxon and Mers is owned by 1? Or are the same
company?
We are going thru a bankruptcy/relief of stay/reaffirmation or
sueing them right now.
Cheryl

Ann
27 AFFIRMATIVE FORECLOSURE DEFENSES -
09/04/10 at -----------------------------------------------------------------------
09:48 AM Thanks for sharing - D. Graham Esq. 305-445-9185

IN THE CIRCUIT OF THE ELEVENTH JUDICIAL

CIRCUIT IN AND FORE MIAMI-DADE COUNTY FLORIDA

XXXXX Case No :
Plaintiff
YYYY

Defendant
----------------------------------------------------/

DEFENDANT YYYYY’S
ANSWER AND AFFIRMATIVE DEFENSES
 Defendant YYYYY by and through undersigned counsel and pursuant to

applicable rules of the Florida Rules of Civil Procedures files this Answer and

Affirmative Defenses to Plaintiff’s Complaint; and states :

1. Defendant YYYYY denies all allegations of Plaintiff’s Complaint and

Demand strict proof thereof.

2. Defendant YYYYY specifically denies that conditions precedent to

Plaintiff’s right of action, right to attorney’s fee and or right to accelerate herein
were

performed or met by Plaintiff or the same was waived by the defendant.

AFFIRMATIVE DEFENSES

3. As a first affirmative defense, defendant states that plaintiff’s complaint

fails to state a cause of action which relief requested may be granted and
therefore

this action is barred.

4. As a second affirmative defense, the defendant states that plaintiff

does

not have capacity to sue or bring this action and this action is therefore barred.

5. As a third affirmative defense, defendant states that Plaintiff is not the real

Party in interest and or duly authorized agent of same upon which plaintiff’s
alleged

claim is based and therefore has no standing to bring this action.

6. As a fourth affirmative defense, defendant states that plaintiff’s failed to

Perform conditions precedent to the initiation of this action and or for acceleration
of

payment allegedly due. As a result, defendant has been denied a good faith

opportunity, pursuant to the mortgage and the servicing obligations of the plaintiff,

to avoid acceleration and this foreclosure.

 7. As a fifth affirmative defense, defendant asserts all terms and condition
of

the promissory notes and mortgage upon which plaintiff’s alleged claim is based.

8. As a sixth affirmative defense, defendant asserts all requirements of

applicable mortgage foreclosure statutes.

10. As a seventh affirmative defense, defendant states that plaintiff is not

the l

lawful assignee of the Promissory Note and Mortgage upon which plaintiff’s
alleged

claim is based.

11. As a ninth affirmative defense, defendant states that Plaintiff cannot

produce the original Promissory Note and Mortgage upon which this action is
based

and therefore relief requested is barred.

12. As ninth affirmative defense, defendant states that plaintiff is not the

holder of the Promissory Note and Mortgage upon which this action is based and

therefore relief requested is barred.

13. As an eleventh affirmative defense, defendant states that plaintiff is not

in possession of the Promissory Note and Mortgage upon which this action is
based

and therefore relief requested is barred.

14. As a twelfth affirmative defense, defendant states that upon information

and belief, the note has been paid in full by an undisclosed third party who prior
to

or contemporaneously with the closing on the loan transaction paid the Lender in

exchange for certain unrecorded rights to the revenues arising out of the loan

documents. Upon information and belief, Plaintiff has no financial interest in the
note

or mortgage. Upon information and belief, the missing assignments on the note
may

have made it void and legal nullity, thus they have exploited key and vital
 evidence

or shipped same off-shore to a structure investment vehicle that also has no

interest

In the note or mortgage or the revenue therefrom. Upon information and belief,

plaintiff’s allegation that the note and the mortgage is lost, stolen or destroyed is

therefore a fraud upon the court.

15. As a thirteenth affirmative defense, defendant states that plaintiff’s claim

Is barred by the statue of frauds, laches and or the statue of limitations.

16. As a fourteenth affirmative defense, defendant states that plaintiff’s

claim is barred and or limited for violation of the federal Truth in Lending Act
(TILA).

17. As a fifteen affirmative defense, defendant states that plaintiff’s claim

Is barred and or limited for violation of RESPA. Upon information and belief,

Plaintiff and or its predecessor(s) in interest violated various provision of the Real

Estate Settlement Procedures Act (“RESPA”), which is codified as 12 U.S.C

Section 2601, et seq. by. Inter alia :

a) Failing to provide the Housing and Urban Development (HUD) special

Information booklet, a Mortgage Servicing Disclosure Statement, and Good Faith

Estimate of settlement/closing costs to Defendant at the time of the loan

application

or within three (3) days thereafter;

b) Failing to provide Defendants with an Escrow Disclosure Statement for

each year of the mortgage since its inception;

c) Giving or accepting fees, kickback and or other things of value in

exchange for referrals of settlement service business, and splitting fees and

receiving unearned fees for service not actually performed;

d) Charging a fee at the time of the loan closing for the preparation of
truth-

in-lending, uniform settlement and escrow account settlements.

18) As a sixteenth affirmative defense, defendant states that plaintiff’s

 claim

is barred and or limited for violation of the state and or federal Fair Debt
Collection

Practices Act.

19) As a seventeenth affirmative defense, defendant states that plaintiff

claim for attorney’s fee is barred for failure to perform or meet conditions
precedent

under the promissory note and or mortgage upon which action is allegedly based.

alternatively, there is no valid contract or other written agreement between the

parties permitting the award of attorney’s fees in connection with this action.

20) As an eighteenth affirmative defense, defendant states that plaintiff

comes to court with unclean hands and is prohibited by reason thereof from

obtaining the equitable relief of foreclosure from this court. The plaintiff’s unclean

hands result from the plaintiff’s improvident and predatory intentional failure to

comply with material term of the mortgage and note; the failure to comply with the

default loan servicing requirements that apply to this loan, 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

circumstanced 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 stopped from doing so because of misleading conduct and

unfulfilled contractual and equitable conditions precedent.

21) As a nineteenth affirmative defense, defendant states that upon

information

and belief, Defendant have made all payments required by law under the

circumstances; however Plaintiff and/or its predecessor(s) in interest improperly

applied such payments resulting in the fiction that Defendant was in default.

defendant is entitled to a full accounting through the master transaction histories

and general ledger for the account since a dump or summary of said information
 cannot be relied upon to determine the rightful amount owed. Further, the
principal

balance claimed as owed is not owed and is the wrong amount ; the loan has not

been properly credited or amortized. Additionally, plaintiff wrongfully placed

forced

insurance on the property and or is attempting to collect on property taxes,

insurance and fees not owed.

22) As a twentieth affirmative defense, the defendant states that plaintiff

failed

To comply with the foreclosure prevention loan servicing requirements impose on

plaintiff pursuant to the National Housing Act, 12 U.S.C. 1701x( c) (5) which

requires all private lenders serving non-federally insured home loans, including

the Plaintiff, to advise borrowers of any home ownership counseling plaintiff

offers

together with information about counseling offered by the U.S Department of

Housing and Urban Development . The U.S Department of Housing and Urban

Development has determined that 12 U.S.C. 1701x( c) (5) creates an affirmative

legal duty on the part of the plaintiff. Plaintiff’s non-compliance with the law’s

requirements is an actionable event that makes the filing of this foreclosure

premature based on a failure of statutory condition precedent to foreclosure

which

denies plaintiff’s ability to carry out this foreclosure. Plaintiff cannot legally pursue

foreclosure unless and until plaintiff demonstrates compliance with 12 U.S.C.

1701x( c) (5) .

23. As a twenty-first affirmative defense, defendant states that plaintiff has

charged

and or collected payments from defendant for attorneys fees, legal fees, litigation
attorney

fees, foreclosure cost, late charges, property inspection fees, “property valuation”

charges, and other charges and advances, and predatory fees, force placed
insurance
and other charges that are not authorized by or in conformity with the terms of the
subject

note and mortgage. Plaintiff wrongfully added and continues to unilaterally add
these illegal

charges to the balance plaintiff claims is due owing under the subject note and
mortgage.

24. As twenty-second affirmative defenses, defendant states that plaintiff

failed

to provide defendant with legitimate and non predatory access to the debt
management

and relief that must be made available to borrowers, including the defendant
pursuant to

and in accordance with the Pooling and Servicing Agreement or other trust
agreement 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 Service 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.

Plaintiff cannot legally pursue foreclosure unless and until plaintiff demonstrates

compliance with the foreclosure prevention servicing imposed by the subject

Pooling and Servicing or Trust Agreement under which the Plaintiff owns the

subject mortgage loan.

25. As a twenty-third affirmative defense, defendant states that plaintiff

unintentionally failed to act in good faith or to deal fairly with the defendants by

failing to follow the applicable standards of residential single family mortgage

servicing as described in these affirmative defenses thereby denying defendant

access to the residential mortgage servicing protocols applicable to the subject

note and mortgage.

 26. As a twenty-fourth Affirmative Defenses, Plaintiff is not entitled to any
deficiency

judgment as it failed to mitigate damages by refusing to accept a deed in lieu or

short sale

offers proposed by or on behalf of defendant. Plaintiff otherwise failed to mitigate

its

damages by other factors to be revealed through discovery.

27. As a twenty-fifth affirmative defenses, defendant states that in light of

all of

the foregoing defenses, and on the face of the purported loan documents, the
terms

and circumstances of the Note and Mortgage were unconscionable when made
and

were unconscionably exercises, it is therefore unconscionable to enforce the

mortgage by foreclosure.

28. As a twenty-sixth affirmative defense, defendant states that plaintiff

cannot prove its case against defendants and therefore this court should enter

judgment in defendant’s favor and quiet title in their favor, voiding the alleged

promissory and mortgage upon which plaintiff seeks to recover herein.

29. As a twenty-seventh affirmative defense, defendant state that plaintiff is

liable for defendant’s costs and attorney’s fees pursuant to terms of the
agreement

between the parties and Florida Statutes, Section 57.105 and or applicable

Provisions of the State and Federal Fair Debt Collection Practices act and or the

Federal Truth and Lending Act.

WHEREFORE, Defendant yyyyyy requests this Court to enter Judgment in

his favor, quieting title, awarding cost and attorney’s fee for those reasons set
forth

herein in addition to relief deemed proper.

CERTIFICATE OF SERVICE
 WE HEREBY CERTIFY that a true and correct copy of the foregoing was

Served by US Mail upon AAAAA. Esq. Law Offices of Marshall C. Watson

Attorney for Plaintiff , 1800 NW 49 Street, Suite 120, Forth Lauderdale FL 33309

On June 2, 2010

Attorney for Plaintiff

Ann
Critical Courtroom Objections ...
08/29/10 at
10:26 PM From a lawyer:
Putting the Brakes on Crooked Judges &
Lawyers!

The most important thing to learn about winning

lawsuits is the easiest to learn!

Timely objections!

You cannot win without controlling the court.

Many people (from watching courtroom battles on TV

or at the movies) believe we make objections to
control "the other lawyer". In fact, that is the smallest
part of it.

We object to threaten the judge with appeal!

If a judge didn't have to worry about appeal, he could

rule any way he wishes -- knowing absolutely nothing
you can do will reverse his
decisions.

I'll bet many of you didn't

know that.

If an issue is not raised

during lower court
proceedings, appellate courts will not consider the
issue after you lose.

That is a hard-and-fast rule of appellate courts!

If the other side crosses the line, you must object. If

the judge sustains your objection, you stop the tricks.

If the judge overrules your objection, you object again

and state your reasons ... even if the judge threatens
you with contempt!

At the close of the other side's argument, you renew

your objections once again.

At the close of all deliberation, you renew once more,

to make crystal clear to the judge that you are not
playing!

If you don't object, you cannot win on appeal.

And, of course, you must arrange in advance of every

hearing and trial for the proceedings to be recorded by
an official court reporter ... or you cannot win on
appeal.

If the judge knows you cannot win on appeal, you've

given him a free hand to do as he pleases. Not good!

The judge is not the authority!

You must make it crystal clear on the court's record

that the judge will be reversed on appeal if he rules
against you, and you do this by making timely
objections and renewing them if you are overruled.

The reason we renew our objections is to give the

judge one more opportunity to do what's right!
Appellate courts want the record to show that the
judge was very much aware of your objections, the
grounds for your objections, and stubbornly refused to
follow the law!

Each time you object (and state the grounds for your
objections, unlike TV actors) you put the judge on
notice that overruling your objection threatens appeal.

If your objections have solid legal footing and the

judge overrules your objections, he is skating on thin
ice!

When you renew your objections, he knows you intend

to take him up on appeal if his errors harm your cause.

For example, one of the most common errors is letting

the lawyer on the other side "testify". The lawyer on
the other side is not a witness. He doesn't have first-
hand knowledge of the facts. He lacks "competence" to
testify to any fact he learned from others. Far too
many good people lose their lawsuits simply because
they allow the lawyer on the other side to put facts
into the record that are beyond the lawyer's own,
personal knowledge.

Failure to object is fatal.

"Objection, your Honor. Counsel is testifying to facts

beyond his personal knowledge and lacks competence
to act as lawyer and witness at the same time!"

If the judge sustains your objection, you've put a stop

to one of the most common outlaw games crooked
lawyers play ... and you've strengthened your case.

If the judge overrules your objection, just stand up

and say, "Let the record reflect my objection that
opposing counsel lacks competence to testify to these
matters."

When the other side finishes his presentation, object

again!

At the close of all the testimony, object again!

Don't let corrupt judges and crooked lawyers

win!

Clever argument is not enough.

Knowing the law is not enough.

Controlling judges is what wins lawsuits!

You control judges by making clear on the record that

you intend to appeal if the judge rules against you!
 You do this by making timely objections and renewing
your objections so the record is crystal clear!

Know how to control the judge - or you will lose!

Learn how to control judges by timely objecting!

As Woody Guthrie used to sing, "This Land is our

Land," and that includes every courtroom and every
courthouse from San Diego to Bangor, Maine. Why let
lawyers control our lives with trickery? Why let judges
destroy our lives by letting lawyers get away with their
typical trickery?

Ann To oppose the Summary Judgment, Defendant can file Motion to

Strike Plaintiff Affidavit and supoena the Signor of Affidavit for
07/13/10 at Deposition.
10:28 PM --------------------------------------------------------------------

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT,

IN AND FOR PINELLAS COUNTY, FLORIDA
CIVIL DIVISION
CASE NO. 2008-013676-CI-ll
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for IXIS REAL
ESTATE CAPITAL TRUST 2006-HE3,
PLAINTIFF,
v.
AIDA HAYES AND HOWARD HAYES DEFENDANTS.
--------------------------------~/
NOTICE OF PRODUCTION
YOU ARE NOTIFIED that after 10 days from the date of service of this notice, if
service is by delivery, or 15 days from the date of service, if service is by mail,
and if no objection is received from any party, the undersigned will issue or apply
to the clerk of this court for issuance of the attached subpoena directed to JOHN
COTTRELL, who is not a party and whose address is 10004 N. DALE MABRY
HIGHWAY, SUITE 112, TAMPA, FL 33618, to produce the items listed at the
time and place specified in the subpoena.
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of
the foregoing has been furnished by
U.S. Mail on this __ day of March, 2010 to MEGHAN A. KENEFIC, Sh iro &
Fishman, LLP, 10004 N. Dale Mabry Highway, Suite 112, Tampa, FL 33618.
S1. Petersburg, FL 33705
(727) 894-3159 FBN: 0185957
,/
/~,r '~T-/H---------::;;~--------1229 Central Avenue
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT,
IN AND FOR PINELLAS COUNTY, FLORIDA
CIVIL DIVISION
CASE NO. 2008-013676-CI-ll
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for IXIS REAL
 ESTATE CAPITAL TRUST 2006-HE3,
PLAINTIFF,
v.
AIDA HAYES AND HOWARD HAYES
DEFENDANTS.
------------------------------~/
SUBPOENA DUCES TECUM FOR RECORDS
STATE OF FLORIDA:
TO: JOHN COTTRELL ASSISTANT VICE PRESIDENT -SAXON MORTGAGE
SERVICES, INC. SHAPIRO & FISHMAN, LLP 10004 N. DALE MABRY
HIGHWAY SUITE 112 TAMPA, FL 33618
YOU ARE HEREBY COMMANDED to appear at the law offices of MA TTHEW
D. WEIDNER, P.A., 1229 Central Avenue, St. Petersburg, Florida, 33705, on
APRIL 15, 2010, at 12:00 PM, and to have with you at the above time and place
the following:
1.
All books, papers, records, documents and other tangible things kept by SAXON
MORTGAGE SERVICES, INC. concerning the transactions alleged in the
complaint against AIDA HAYES AND HOWARD HAYES.
2.
Any and all other books, papers, records, documents or tangible things that relate
to DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR IXIS
REAL ESTATE CAPITAL TRUST 2006-HE3 claim against AIDA HAYES AND
HOWARD HAYES.
3.
All employment records, including but not limited to time sheets, which exist
between JOHN COTTRELL and any employer who has employed JOHN
COTTRELL two weeks preceding and two weeks subsequent to the execution of
this document.
-----------------------------
4.
All records that purport to give JOHN COTTRELL the authority to sign or execute
any documents on behalf of any person or entity.
5.
If you are a notary public, your notary public's logs.
6.
All documents, records, books, evidence or instructions that you reviewed or
relied upon in order to prepare the affidavit or assignment executed in this case.
These items will be inspected and may be copied at that time. You will not be
required to surrender the original items. You may comply with this subpoena by
providing legible copies of the items to be produced to the attorney whose name
appears on this subpoena on or before the scheduled date of production. You
may condition the preparation of the copies upon the payment in advance of the
reasonable cost of preparation. You may mail or deliver the copies to the attorney
whose name appears on this subpoena and thereby eliminate your appearance
at the time and place specified above. You have the right to object to the
production pursuant to this subpoena at any time before production by giving
written notice to the attorney whose name appears on this subpoena. THIS WILL
NOT BE A DEPOSITION. NO TESTIMONY WILL BE TAKEN.
Ifyou fail to: (a) appear as specified, or (b) furnish the records instead of
appearing as provided above; or (c) object to this subpoena you may be in
contempt of Court. You are subpoenaed by the attorneys whose names appear
on this subpoena, and unless excused from this subpoena by the attorney or the
Court, you shall respond to this subpoena as directed.
FOR THE COURT
 Matthew D. Weidner, P.A. 1229 Central Avenue S1. Petersburg, FL 33705
By: Matthew D. Weidner FBN: 0185957
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT,
IN AND FOR PINELLAS COUNTY, FLORIDA
CIVIL DIVISION
CASE NO. 2008-013676-CI-ll
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for IXIS REAL
EST ATE CAPITAL TRUST 2006-HE3,
PLAINTIFF,
v.
AIDA HAYES AND HOWARD HAYES DEFENDANTS.
------------------------------~/
DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S AFFIDAVIT IN SUPPORT
OF ITS MOTION FOR FINAL SUMMARY JUDGMENT AND FOR ATTORNEY'S
FEES COMES NOW, the Defendants AIDA HA YES AND HOWARD HAYES
(hereinafter "Defendant"), by and through the undersigned counsel MATTHEW D.
WEIDNER, and respectfully MOTIONS THIS COURT TO STRIKE PLAINTIFF'S
AFFIDAVIT n'J SUPPORT OF ITS MOTION FOR FU'JAL SUMMARY
JUDGMENT AND FOR ATTORNEY'S FEES, pursuant to Fla. R. Civ. Pro. 1.510,
and in support thereof states as follows:
FACTS
1. This is an action for foreclosure of real property owned by the Defendant.
2. The named plaintiff in this case is DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE FOR IXIS REAL ESTATE CAPITAL TRUST 2006-
HE3 (hereinafter "Plaintiff').
3. On March 2, 2010 Plaintiff, by and through its undersigned counsel, gave
Notice of
Filing of Affidavit in Support of Its Motion for Final Summary Judgment and the
accompanying Affidavit (hereinafter "Affidavit").
4.
The Affiant of the above-mention Affidavit was identified as JOHN COTTRELL
(hereinafter "Affiant"). The Affiant identified himself as an "Assistant Vice
President" for SAXON MORTGAGE SERVICES, INC. (hereinafter "Saxon") in the
opening paragraph of the Affidavit which appears to be a paragraph reserved for
the Affiant's title. Saxon and its relationship to the Plaintiff, however, was not
identified anywhere in the Affidavit.
5.
The Affiant, based upon his personal knowledge, averred in the Affidavit that the
total amount owed on the Note and Mortgage allegedly executed between the
Plaintiff and the Defendant was $159,661.701 and that "[the Plaintiff] is the owner
and holder of that certain mortgage originally given by [the Defendant].,,2
6.
The Affiant also averred that he "has access, custody and control of the records
maintained by the Plaintiff with respect to the mortgage loan account which is the
subject of the instant action.,,3 These records, however, were not attached to the
Affidavit. Further, upon information and belief, these records are what form the
basis for the Affiant's statements.
7.
Upon information and belief, Saxon is a "middleman" of sorts who is responsible
for the transfer of funds between the various assignees of the underlying
Mortgage and Note and has no knowledge of the underlying transactions
between the Plaintiff and Defendant.
8.
Upon information and belief, the Affiant, as employee of Saxon and not the
Plaintiff, has no knowledge ofthe underlying transactions between the Plaintiff
 and Defendant.
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION
I See Plaintiff's Affidavit in Support of its Motion for Summary Judgment, ~9.
2 rd, ~6.
3 Id, ~2.
I. The Affidavit Should be Struck because the Plaintiff Failed to Attach
Documents Referred to in the Affidavit
a. Legal Standards
Fla. R. Civ. Pro. 1.51O(e) provides, in part, that "[s]wom or certified copies of all
papers or parts thereof referred to in an affidavit shall be attached thereto or
served therewith." Failure to attach such papers is grounds for reversal of
summary judgment decisions. See CSX Transp., Inc. v. Pasco County, 660 So.
2d 757 (Fla. 2d DCA 1995) (reversing summary judgment granted below where
the affiant based statements on reports but failed to attach same to the affidavit.)
b. Argument
9. Here, the Affiant states in the Affidavit that he "has access, custody and control
of the records maintained by the Plaintiff with respect to the mortgage loan
account which is the subject of the instant action.,,4 These records, however,
were not attached to the Affidavit. Furthermore, upon information and belief,
these records are what form the basis for the Affiant's statements, particularly his
statement that amount owed on the Note and Mortgage allegedly executed
between the Plaintiff and the Defendant was $159,661.705 and that "[the Plaintiff]
is the owner and holder of that certain mortgage originally given by [the
Defendant].,,6 In essence, the Affiant has averred to records which she did not
submit.
WHEREFORE, because the Plaintiff has failed to attach documents referred to in
its Affidavit in violation of Fla. R. Civ. Pro. 1.51 O(e), the Affidavit should be
struck in whole.
II. The Affidavit Should be Struck because the Affidavit Was Not Based Upon the
Affiant's Personal Knowledge
a. Legal Standards
4 See Plaintiff's Affidavit in Support of its Motion for Summary Judgment, ~2.
5 Id, ~9.
6 Id, ~6.
As a threshold matter, the admissibility of an affidavit rests upon the affiant
having
personal knowledge as to the matters stated therein. See Fla. R. Civ. Pro.
1.510(e) (reading, in pertinent part, that "affidavits shall be made on personal
knowledge"); Enterprise Leasing Co. v. Demartino, 15 So. 3d 711 (Fla. 2d DCA
2009); West Edge II v. Kunderas, 910 So. 2d 953 (Fla.
2d DCA 2005); In re Forefeiture of 1998 Ford PickUp, Identification No.
IFTZX1767WNA34547, 779 So. 2d 450 (Fla. 2d DCA 2000). Additionally, a
corporate officer's affidavit which merely states conclusions or opinion is not
sufficient, even if it is based on personal knowledge. Nour v. All State Supply Co.,
So. 2d 1204,1205 (Fla. 1st DCA 1986). Most importantly, an affiant should state
in detail the facts showing that the affiant has personal knowledge. See Hoyt v.
St. Lucie County, Bd. Of County Comm'rs, 705 So. 2d 119 (Fla. 4th DCA 1998)
(holding an affidavit legally insufficient where it failed to reflect facts
demonstrating how the affiant would possess personal knowledge of the matters
at issue in the case); Carter v. Cessna Fin. Corp., 498 So. 2d 1319 (Fla. 4th DCA
1986) (holding an affidavit legally insufficient where the affiant failed to set out a
factual basis to support a claim of personal knowledge of matter at issue in the
case and failed to make assertions based on personal knowledge.)
The Third District, in Alvarez v. Florida Ins. Guaranty Association, 661 So. 2d
1230 (Fla. 3d DCA 1995), noted that "the purpose of the personal knowledge
 requirement is to prevent the trial court from relying on hearsay when ruling on a
motion for summary judgment and to ensure that there is an admissible
evidentiary basis for the case rather than mere supposition or belief." Id at 1232
(quoting Pawlik v. Barnett Bank of Columbia Countv, 528 So. 2d 965, 966 (Fla.
1st DCA 1988)). This opposition to hearsay evidence has deep roots in Florida
common law. In Capello v. Flea Market U.S.A., Inc., 625 So. 2d 474 (Fla. 3d DCA
1993), the Third District
affirmed an order ofsurnmary judgment in favor of Flea Market U.S.A as Capello's
affidavit in opposition was not based upon personal knowledge and therefore
contained inadmissible hearsay evidence. See also Doss v. Steger & Steger,
P.A., 613 So. 2d 136 (Fla. 4th DCA 1993); Mullan
v. Bishop of Diocese of Orlando, 540 So. 2d 174 (Fla. 5th DCA 1989); Crosby v.
Paxson Electric Company, 534 So. 2d 787 (Fla. 1st DCA 1988); Page v. Stanley,
226 So. 2d 129 (Fla. 4th DCA 1969). Thus, there is ample precedent for striking
affidavits in full which are not based upon the affiant's personal knowledge.
h. Argument
Here, the entire Affidavit is hearsay evidence as the Mfiant has absolutely no
personal knowledge of the facts stated therein. As an employee of Saxon, whose
relationship to the Plaintiff is not even identified in the Affidavit, he has no
knowledge of the underlying transaction between the Plaintiff and the Defendant.
Neither the Affiant nor Saxon: (1) were engaged by the Plaintiff for the purpose of
executing the underlying mortgage transaction with the Defendant; or (2) had any
contact with the Defendant with respect to the underlying transaction between the
Plaintiff and Defendant. At best, Saxon, who is not the named Plaintiff, acted as a
middleman of sorts, whose primary function was to transfer of funds between the
various assignees of the underlying Mortgage and Note. Most importantly, the
Affidavit fails to set forth with any degree of specificity what duties Saxon
performs for the Plaintiff. Thus, the Affiant has failed to state in detail the facts
showing that she has personal knowledge.
Because the Affiant has no personal knowledge of the underlying transaction
between the Plaintiff and Defendant, any statement she gives which references
this underlying transaction (such as the fact that the Plaintiff is allegedly owed
sums of monies in excess of $159,000) is, by its very nature, hearsay. The
Florida Rules of Evidence define hearsay as "a statement, other
than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted." Fla. Stat. §90.80I(l)(c) (2007).
Here the Affiant is averring to a statement (that the Plaintiff is allegedly owed
sums of money) which was made by someone other than herself (namely, the
Plaintiff) and is offering this as proof of the matter asserted (that Plaintiff is
entitled to enforce the Note and Mortgage and that Plaintiff is entitled to a
judgment as a matter of law.) At best, the only statements which the Affiant can
aver to are those which regard the transfer of funds between the various
assignees of the Mortgage and Note.
The Plaintiff may argue that while the Affiant's statements may be hearsay,
because they may be based off of certain alleged "business" records, they should
nevertheless be admitted under the "Records of Regularly Conducted Business
Activity" exception. Fla. Stat. §90.803(6) (2007). This rule provides that
notwithstanding the provision of §90.802 (which renders hearsay statements
inadmissible), hearsay statements are not inadmissible, even though the
declarant is available as a witness, if the statement is
[aJ memorandum, report, record, or data compilation, in any form, of acts,
events, conditions, opinion, or diagnosis, made at or near the time by, or from
information transmitted by, a person with knowledge, if kept in the course of a
regularly conducted business activity and if it was the regular practice of that
business activity to make such memorandum, report, record, or data compilation,
 all as shown by the testimony of the custodian or other qualified witness, or as
shown by a certification or declaration that complies with paragraph (c) and s.
90.902(11), unless the sources of information or other circumstances show lack
of trustworthiness. Emphasis added.
There are, however, several problems with this argument. To begin, and as
previously demonstrated, no memorandums, reports, records, or data compilation
have been offered by the Plaintiff. Moreover, the First District has recently held
that lists of payments due and owing, such as the list found in paragraph four, are
inadmissible hearsay statements and not business
records and it is therefore an error to award summary judgment based on such
an affidavit. Mitchell Brothers, Inc. v. Westfield Ins. Co., 35 Fla. L. Weekly DI07
(Fla. 1st DCA Dec. 31, 2009).
WHEREFORE, because the Affiant's statements in the Affidavit are not based
upon personal knowledge and are therefore inadmissible hearsay evidence to
which no hearsay exception applies, the Affidavit should be struck in whole.
III. Sanction of Attorney's Fees is Appropriate
Fla. R. Civ. Pro. 1.510(g) reads, in full, that
[i]f it appears to the satisfaction of the court at any time that any of the affidavits
presented pursuant to this rule are presented in bad faith or solely for the
purpose of delay, the court shall forthwith order the party employing them to pay
to the other party the amount of the reasonable expenses which the filing of the
affidavits caused the other party to incur, including reasonable attorneys' fees,
and any offending party or attorney may be adjudged guilty of contempt.
Emphasis added.
The undersigned counsel has expended considerable time and resources
preparing to defend against an affidavit which has, on its face, no basis in law.
Both the Plaintiff and the Plaintiffs counsel knew that the Affiant's affidavit lacked
authenticity and reliability yet still chose to file it with the Court. This may be
indicia of a modus operandi on the Plaintiffs part to present misrepresentations
and false affidavits to the Court which make an award of attorney's fees and
costs an appropriate sanction.
WHEREFORE, Defendant asks this Court to GRANT its MOTION TO STRIKE
PLAINTIFF'S AFFIDAVIT IN SUPPORT OF ITS MOTIN FOR SUMMARY
JUDGMENT and enter an ORDER granting ATTORNEY'S FEES AND COSTS
and any other relief the Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by
U.S. Mail on this K~of March, 2010 to MEGHAN A. KENEFIC, Shapiro &
Fishman, LLP, 10004 N. Dale Mabry Highway, Suite 112, Tampa, FL 33618.
~
Attorney for Defendant 1229 Central Avenue St. Petersburg, FL 33705
(727) 894-3159 FBN: 0185957

Ann Referral: Prominent Foreclosure Defense Attorney D. Graham 305-

445-9185
07/12/10 at --------------------------------------------------------------------------
10:41 PM What do I do if I am sued for foreclosure in Florida?

1. Respond to the Complaint

You have twenty days after service to respond to the Complaint. You can file a
 Motion for Time Extension to ask for another 20 days to file a response The
response can be an Answer or a Motion to Dismiss. If justified, the initial
response should be a motion to dismiss. The Motion to Dismiss delays the time
for an Answer until the motion is denied. You will waive many issues if you omit
them from the motion, so you should hire a lawyer to represent you if at all
possible.

2.Draft the Motion to Dismiss

Consider: 1. Was service on you proper? (In your hand, or if at home in the hand
of you or another adult resident) 2. Is a copy of the promissory note attached to
the Complaint? 3. Does the plaintiff adequately show the plaintiff owns and holds
the note? 4. If there is a count to re-establish a lost note, does the count say it
was lost while in the possession of the plaintiff? Are the allegations generic or
specific? 5. Does the Complaint show that the taxes on the note were paid? 6.
Does the Complaint show that you signed the note or have an interest in the
property (2d mortgage holder, tenant, etc) -- being a spouse of the debtor is no
reason to sue you. Serve the motion to dismiss. Send the original to the clerk of
the court. (If possible, bring a copy of the original to the clerk of the court with the
original motion and have the clerk time-stamp your copy to show it was on time).

3. Wait until the judge rules on the motion

Some circuits require that you send a copy of the motion to the judge with a blank
order and envelopes. If there is such a requirement, do it. You do not have to do
anything else until the motion is denied. Under the above procedure, this might
happen without a hearing, or the judge might request a hearing. In the circuits
that do not require notifying the judge about a motion to dismiss, the plaintiff will
have to contact you, discuss the merits of the motion, and if you do not agree,
either set it for hearing or Amend the Complaint. (If the Complaint is amended, go
back to step 1, above). If the matter is set for hearing, attend the hearing and tell
the judge why the Complaint is defective (not why you do or do not owe the
money). If the Plaintiff has no Standing to foreclose(i.e does not own the notes or
Plaintiff is not a Party of Interest etc ), the Judge still denies your Motion to
Dismiss, you can consider go to Appeal. Remember to go to the hearing with a
Court Reporter as you need certified transcript to go to Appeal Court.

4. Answer the Complaint

You should have a lawyer do this in order not to miss important issues. But
consider: 1. Denying all the material facts alleged. 2. Adding Affirmative
Defenses; consider these: A. The same issues detailed in the Motion to Dismiss
considerations B. Predatory lending C. Illegal interest rates D. Waiver E. Violation
of the Truth in Lending Act F. The Complaint fails to state a cause of action. G.
The Complaint fails to state a cause of action because it does not show
endorsement of the promissory note to the plaintiff. H. Plaintiff has failed to
present the promissory note for payment as required by Fla. Stat. §§673.011, et.
seq. I. Plaintiff is in violation of Florida Statute §57.011 because it is a non-
resident of the State of Florida that has not posted a non-resident cost bond after
a demand that it do so. J. Plaintiff is not the real party in interest
 5. The matter will be set for mandatory
mediation
The Florida Supreme Court has recently adopted rules requiring mandatory
managed mediation in all residential foreclosure cases. You will be contacted by
the organization responsible for the mediation. TAKE THE CALL. COMPLY WITH
THE REQUEST TO CONTACT THE CREDIT COUNSELOR. PROVIDE THE
REQUESTED INFORMATION. Attend the mediation when it is set.

6. Attend mediation
Consider these possibilities: If you want to leave the home, consider: 1. Giving a
deed in lieu of foreclosure (be sure you get a guarantee of debt forgiveness) 2.
Asking for move-out money ("Cash for Keys") 3. A short sale (be sure you get a
guarantee of debt forgiveness) 4. Setting a move-out date long into the future. If
you want to stay in the home, consider: 1. Ask for a reduction in principal to the
value of the home (A recent federal program may help facilitate this in part) 2.
Asking about the HAMP program (if you qualify, the interest rate is reduced and
the term extended so that the payments are reduced) 3. Asking about
conventional refinancing to current rates Remember, you do not have to agree on
anything. You can let the foreclosure take its course. Remember, the promissory
note is negotiable paper, it may be able to be sold and then enforced against you
if you do not get the original note back.

7. If mediation is unsuccesful, send

discovery to the plaintiff
You need a lawyer to do this well. The discovery should be aimed at showing that
you do not owe this plaintiff anything. Consider: 1. Interrogatories 2. Request to
Produce 3. Request to Admit Be aggressive if you do not timely receive
responses. File motions to compel and set them for hearing. The plaintiff's
lawyers are probably working on a flat fee and may leave you alone if you are
difficult to deal with. Be sure to properly respond to the plaintiff's discovery.
(Request to Admit are deemed admitted if you do not timely respond).

8. When the Motion for Summary

Judgment is filed; Respond with an
Affidavit
A trial will be needed if any material allegations are at issue. These might include
who owns the note, are you in default, as well as the legal defenses set forth
above. But, the judge will only defenses presented in a timely, properly drafted
and filed affidavit, Get a lawyer to help you do this. Avoid a Summary Judgment.

8.If there is a trial, defend aggressively.

 Make sure you hire a court reporter for
trial
Raise all the issues stated above. Bring witnesses and documentary evidence.
Concede nothing.

10. If you lose

Consider an appeal, but this is costly and does not delay the foreclosure without
posting a bond. You can still redeem the property by paying the judgment until
the clerk of the court issues the certificate of title. Consider refinancing. You can
also file Bankruptcy to delay the sale and have your debts including the mortgage
wipe out.

Ann
Judicial Foreclosure Process
06/30/10 at
12:55 AM Written by: Margery Ellen Golant

Attorney licensed in Florida and 1 other state

Foreclosure is the process by which the lender takes control of the property and
sells it to raise money to pay the debt. The process varies depending on if your
state is a judicial or nonjudicial state. Find out how judicial foreclosure works.

1.The Foreclosure Process

Foreclosure is the process by which the lender takes control of the property
which was pledged as collateral for the mortgage debt and sells the property to
raise money to pay on the debt created by the Note. The sale extinguishes the
borrower's interest in the property although some states have redemption period
after the sale. Other interests are also extinguished if the foreclosure is done
properly, including the rights of other owners, spouses, junior mortgages,
lienholders, and some taxes. The foreclosure process is very different depending
on whether it is judicial or non-judicial. In the US, approximately half of the states
permit non-judicial foreclosure. The rest of the states require judicial foreclosure.
A few states allow both. However, the process is different in each state;
accordingly the material here is intended as a general guide. It is for educational
purposes only, and is not legal advice.

2.Interested Parties
In order for the interests of all parties who may have a claim to the property be
extinguished, the foreclosure must be done properly, and all interested parties
 must be given proper notice as detailed by state law. The typical interested
parties are other owners of the property, spouses, junior mortgages, lienholders,
and some taxes. If the borrower is deceased, his or her heirs and estate are
interested parties.

3. Judicial Foreclosure
Judicial foreclosure is a lawsuit, similar to other kinds of lawsuits. It is formal and
much more complex, and generally takes longer than non-judicial foreclosure,
although this varies by jurisdiction. The point of a judicial foreclosure is for the
lender to obtain from the court a judgment in foreclosure, and the right to hold a
sale of the mortgaged property. The court is involved in the foreclosure process
all the way through. So, if a borrower feels there is something wrong or improper
occurring, he or she can raise those issues within the judicial foreclosure
proceeding.

4. Notice of Default and Acceleration

Most mortgage and most states' laws require the lender to give a borrower
advance notice that a foreclosure is about to start, and an opportunity to cure the
default. The cure period is typically between 20 and 60 days, depending on the
mortgage document and state law.

5. Service of Process
Lawsuits are begun by service of process. All states have laws that govern
exactly how this has to work to be valid. In most states, it means that the
Summons and Complaint (see below) must be handed directly to you or to an
adult member of your household. However, all states have laws to cover
situations where you avoid service of process or cannot be served personally.
Service of process must be done properly in accordance with the law of the state
in question to be valid. These days we see many examples of improper service of
process. If process is not served properly, this issue MUST be raised before any
other defensive pleadings or it is waived.

6. Summons and Complaint

This is usually the first evidence that a borrower in a judicial state sees that his or
her property is being subjected to foreclosure. A Complaint is filed by the lender
or its agent, the loan servicer, with the Clerk of the court having jurisdiction over
foreclosures in that county. The Clerk issues a Summons, and that, with the
Complaint, is then delivered personally to the borrower and any other interested
parties (other property owners, spouses, junior mortgages and liens,
condominium and homeowners' associations). Service of the Summons and
Complaint starts the clock ticking for the party served to defend if he, she or it is
going to do so. The party suing is the Plaintiff, the parties being sued are
Defendants. The Complaint asks that the court accelerate the obligation to pay
the entire mortgage debt in full, with all accrued costs, fees, advances and
expenses.
 7. Response
If a borrower or other interested party has any reason to contest a foreclosure, he
she or it needs to file a Response to the Complaint unless there is a defective
process service issue (see above). There are many different kinds of responses,
and it is critical that the right one be utilized at the right time. Motions and other
objections normally deal with preliminary matters of some kind, including
technical defects in the Complaint, technical defects in service of process, etc.
There are various kinds of preliminary motions. Most applicable usually to
foreclosure, depending on the facts, are Motions to Quash Service, Motions to
Dismiss, Motions to Strike, and often there are others, depending on the specific
law and procedure of the state in question.

8.Response - Answer
Answers fully address the allegations of the Complaint. In most cases, if issues
exist which can be raised by Motion or Objection, this is waived if an Answer is
filed first. Answers raise legal issues which are defenses to foreclosure (See
Guide - Defenses to Foreclosure). The amount of time allowed for a Response is
governed by state law, usually 20 or 30 days. Many people try to file their own
"Answer". This is normally a very dangerous move. The filing of an Answer
generally extinguishes the right to file preliminary motions, which can be critical to
the correct handling of a defense case. The only things which should be
contained in an Answer are legal defenses to foreclosure. These are rarely what
you would expect. Typically, the sorts of things people file talk about their
financial difficulties, about the fact that they are trying to get the mortgage
company to work with them, or trying to get a better job, and that they need more
time.

9.Default
If a Defendant does not file a response within the time allowed by law, the
Plaintiff can cause default to be entered against that Defendant, which precludes
his or her being able to raise defenses. In some states, it also allows the
foreclosure to proceed without any further notice to defaulting defendants.

10. Counterclaim
If a borrower has been wronged by the mortgage lender or servicer, he or she
may file a counterclaim. A counterclaim is just that - a suit within a suit, where the
Borrower is suing the Lender or Servicer.

11.Discovery
Interrogatories, Requests for Production, Requests for Admission, Depositions -
These are tools which can be used by any party to a lawsuit to obtain more
information to prove or disprove his, her or its case. Interrogatories are written
questions which one party serves on the other, demanding information. Requests
for Production are requests for tangible things, such as documents, files, objects,
 etc. Requests for Admissions are used by attorneys to attempt to compel the
other side to admit or deny issues. Depositions are in-person testimony, under
oath, all of which is taken down by a court reporter. Cases may involve all or any
combination of these, however each jurisdiction has specific rules as to when
discovery can be propounded, how long the other side has to respond, and how
to handle a failure to respond or to respond properly. Properly done discovery is
usually the key to a successful outcome in a lawsuit.

12. Burden of Proof

Normally, whichever party raises an issue has the burden of proving it. This
means that if I say you owe me money, I have to be able to prove it. If I say I own
the mortgage on your home, I have to be able to prove it. As mentioned above,
well-done discovery will allow your attorney to find out whether I can prove it or
not. As an example, if you claim that the mortgage company did not apply
payments correctly, you have to be able to prove it. You may be able to do this
with your records, but it would also be of tremendous use to get the mortgage
company's records of what payments they applied to see if their records are right.
So, in a Judicial Foreclosure, the Plaintiff has the burden of proving its right to
foreclose, the amount of the debt and the existence and details of default. The
defendant has the burden of proving any affirmative defenses he she or it raises.

13. Summary Judgment

Either party has the right to ask the court to grant summary judgment in its favor.
Normally, the Motion for Summary Judgment is supported by affidavits from
potential witnesses supporting their claims. If granted, that ends the case - it
means the moving party wins. Summary judgment is the goal of foreclosure
plaintiffs. Technically, it means that the court is convinced that there is no reason
for a trial, that the pleadings and issues raised in the case by the parties
demonstrate that the party requesting summary judgment does not have to do
any more to prove its case. If a defendant does not raise issues which constitute
defenses to foreclosure, and does not establish that there are issues that need to
be sorted out at trial, the court is likely to grant summary judgment, since that
removes one more case from the court's swollen caseload.

14. Summary Judgment (cont.)

If a defendant has been defaulted, the way to summary judgment for the Plaintiff
is wide open. If a defendant has filed a homemade "answer" telling the court that
he, she or it can't pay right now, is trying to get a modification, is trying to get a
better job, needs more time, likewise the way to summary judgment for the
Plaintiff is wide open. If the defendant has properly raised legitimate issues, there
is a chance of surviving summary judgment and if a summary judgment is
improperly granted anyway, that may be a basis for appeal. The Order granting
Summary Judgment normally itemizes the entire amount claimed to be due at
that point - the entire mortgage debt in full, with all accrued costs, fees, advances
and expenses. Once Summary Judgment is granted, the next step normally is the
scheduling of a foreclosure sale.
 15. Trial
If neither party is able to obtain Summary Judgment, and unless the dispute is
settled by agreement, the next step is trial. Trial is a full scale proceeding. Some
states allow for trial by jury, others do not, but most mortgage documents contain
a jury trial waiver which the borrower consented to at closing. At trial a judge with
or without a jury hears and rules on all the evidence presented, hears the
arguments of counsel and makes a decision. If a Counterclaim has been filed and
has not been disposed of via Summary Judgment, the counterclaim may allow for
trial by jury. At the conclusion of the trial, if the Plaintiff wins, then it proceeds to
set a sale (see below). If it loses, it will be unable to proceed any further with the
foreclosure process. If it did lose, depending on the reason why, it may be
possible for another Plaintiff to bring an action for foreclosure.

16. Foreclosure Sale

In order for a foreclosure sale to be held in a judicial foreclosure, the actual
lawsuit must be over, either through Summary Judgment or after trial, and all that
remains are the final details of getting the property sold. Again the process and
details vary by state, but all entail setting a date for sale. Notice of the date is
given to all interested parties and in many states also provided publicly in the
newspaper and often now by posting on the web sites of Courts, Clerks of Court
or other similar locations. The foreclosure sale is handled by a judicial officer - in
some states it is the Sheriff, in some states it is the Clerk of Courts, in some
states a referral is made to a court-appointed master. The date is set, notice is
given, and then the actual sale occurs. It is generally in the form of an auction.

17. Foreclosure Sale (cont.)

The foreclosing lender sends a representative to bid. Its bid is usually the total
amount due it, although sometimes if the property is underwater, the lender will
reduce its bid in the hope that it will be outbid by a third party. If a junior
lienholder or third party is the high bidder, it is the successful purchaser.
However, in many places now, when the mortgage debt equals or exceeds the
current value of the property, there are no other bidders, and so the mortgage
company wind up as the high bidder. Normally the entire bid amount must be
paid right away in full. There is some time period after the sale before the sale is
confirmed. This varies by state. Once the sale is confirmed, a document is issued
to the buyer conveying title. Depending on the state, it might be a Sheriff's Deed,
a Certificate of Title or some other instrument, but the practical effect is to convey
title. Once the new buyer owns the property, they can do what they want, subject
to right of redemption.

18. Deficiency Judgments

Many states provide a mechanism for a foreclosing Plaintiff to recover a
deficiency judgment, usually consisting of the shortfall between the total owed by
the borrower and the value of the property it recovers if it buys it at the
foreclosure sale. In those states that permit this, a borrower is not done with the
obligation simply because he she or it allows a foreclosure to be completed. It is
 very important to understand whether or not you may be exposed for a deficiency
judgment before you decide whether to oppose foreclosure or to consider
bankruptcy. For details of how deficiency judgments work in Florida, check my
Legal Guide on deficiency judgments. While the guide is geared to Florida, the
concept is similar in other states that permit it, although the details and time-
frames vary. Some states do not allow deficiency judgments under some
circumstances.

Ann LAWSUIT FLOW CHART

06/27/10 at Lawsuits remain a mystery to those who don’t know

07:14 PM how to "take them apart" to understand the
relationships of their component phases.

There are five (5) phases of every lawsuit (state or

federal jurisdictions).

As you see, there are 3 MAIN phases and 2

INTERMEDIATE phases.

1. Complaint – Answer -- Trial (The initial letters

spell CAT!)
2. Flurry of Motions -- Discovery

Lawsuits are won by making a record of the FACTS &

LAW during each of the five phases. To win as
plaintiff, you merely meet your burden to prove that
the facts and controlling law in your jurisdiction
agree. To win as defendant, you merely prove that
the plaintiff’s facts and law do not agree, so plaintiff
cannot meet his burden.

During each phase, plaintiff tries to meet his burden,

while defendant does all he can to shoot holes in the
plaintiff’s case.

It’s really that simple!

1. COMPLAINT … Plaintiff concisely and clearly

states all facts necessary to win … and says no
more than necessary. Plaintiff also concisely
and clearly states the law that, if stated facts
are proven true, will give him a favorable
verdict "according to law". The power of law exists
 whenever necessary facts are proven to exist. In order to win a
lawsuit, therefore, you must prove not only that the necessary
facts are true but that, if those facts are true, there is a law that
provides a court-enforced remedy for your damages resulting
from the facts.
2. FLURRY OF MOTIONS … Defendant files
motions to dismiss, to strike, or for more
definite statement and requires plaintiff to
prove his complaint is legitimate. Flurry of motions
is used by defendant to get rid of the case. If successful,
defendant doesn’t have to file an answer to plaintiff’s complaint.
A flurry of motions can even succeed where plaintiff was "in the
right" if plaintiff failed to include in his complaint sufficient
facts to state a cause of action, made statements that were
impertinent or scandalous, or used such poor English as to make
it impossible for the Court to understand his case.
3. ANSWER … If the flurry of motions fails
defendant must answer each allegation of
plaintiff’s complaint by admitting, denying, or
claiming no knowledge. Defendant should answer no
more than necessary to deny what plaintiff has alleged. If
defendant has defenses, however, he should state these in his
answer as affirmative defenses (or he may waive the right to raise
the defensive issues at a later time). Now also is time for
counterclaims or to bring in a third-party
defendant, i.e., one whom the defendant
wishes to blame for his having been sued in the
first place.
4. DISCOVERY … By using requests for
admissions, requests for production,
interrogatories, depositions, and Court’s
subpoena power facts are put on the court’s
record. During this critical phase, both sides
attempt to make a record of the truth. This is
the most important phase of every lawsuit.
Failure to make an effective court record of the
facts during the discovery phase is the single
greatest cause of people losing otherwise
winnable lawsuits! Be thorough!
5. TRIAL … Trial happens if defendant fails to get
plaintiff’s case dismissed, or the parties fail to
sooner establish facts by discovery to promote
settlement. Successful litigants make a winning record
before trial, using the procedures and tactics taught by our
 simplified lawsuit tutorials. They establish winning facts and
supporting law on the court record before trial begins. This is the
riskiest phase of any lawsuit. It is recommended that you go to
trial with the assistance of an experienced trial lawyer.

Know what should be done … whether you have a lawyer or not!

Angela Great info, Ann! Thanks much!

06/26/10 at
11:25 PM

Ann Show this Motion to your attorney. Hope this may help
DEBTORS' OPPOSITION TO SUNTRUST'S MOTION FOR ORDER
06/09/10 at LIFTING AUTOMATIC STAY
11:31 AM
UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
In Re:
AYANNA K. CAMARA aka ROSIE P.
HINTON and LARRY LEE
Debtors
--------------------------------------------------
SUNTRUST MORTGAGE, INC.
Movant
v.
AYANNA K. CAMARA aka ROSIE P.
HINTON and LARRY LEE
Debtors
and
KEVIN R. MCCARTHY
Trustee
Respondents
No. 10-10856-RGM
DEBTORS' OPPOSITION TO SUNTRUST'S MOTION FOR ORDER LIFTING
AUTOMATIC STAY

Debtors Ayanna K. Camara and Larry Lee respectfully oppose SunTrust's motion
to lift
automatic stay filed on March 25, 2010 and served upon the Debtors on April 2,
2010. The
motion should be denied because, based on the record before the court,
SunTrust is not a creditor
of the instant bankruptcy estate and is not entitled to enforce the subject debt. In
addition to
SunTrust's lack of standing, its lift-stay motion fails to satisfy both procedural and
substantive
requirements applicable to this proceeding.

BACKGROUND
Today, more and more homeowners turn to the bankruptcy system for protection
when
facing financial hardship and impending foreclosure. It is bankruptcy courts'
responsibility to
ensure that these debtors receive the full protection of the Bankruptcy Code,
including the benefit
of the automatic stay, for as long as the debtors are entitled to it. Unfortunately,
contemporaneously with the increase in foreclosures, there is an increase in
lenders and entities
posing as lenders who, in their rush to foreclose, haphazardly fail to comply even
with the most
basic legal requirements of the bankruptcy system. It is the movant's
responsibility to comply,
and this Court's responsibility to ensure compliance, with both substantive and
procedural
requirements of the Bankruptcy Code, the federal rules, and other applicable law.
See, e.g., In re
Maisel, 378 B.R. 19 (Bankr. Mass. 2007); In re Foreclosure Cases, 2007 WL
3232430 (N.D.
Ohio 2007); In re Foreclosure Cases, 521 F. Supp. 2d 650 (S.D. Ohio 2007).
The most basic elements required to obtain relief from stay are that a movant (1)
have the
right to enforce the subject debt (2) in a way it is attempting to do so (through
foreclosure), i.e.,
that the movant have standing to bring and prosecute a lift-stay motion. Id. In this
case, SunTrust
satisfies neither of these elements. SunTrust does not have the right to enforce
the subject debt in
the first place, much less to enforce it as a secured creditor by way of
foreclosure.

FACTS
The Note and the Deed of Trust
On February 18, 2006, Debtor Ayanna Camara executed and delivered to
Synergy One
Financial Services, LLC ("Synergy One") a 3-page, fixed-rate promissory note in
the principal
sum of $287,000.00 ("Note") secured by a Deed of Trust on real property located
at 11977
Beaver Mill Lane, Manassas, VA 20112. Page 3 of the note contained Debtor
Camara's
notarized signature. Exh. A (copy of the Note as provided to Debtor at closing).
Some time in August-September 2009, after receiving a notice that her home
may be
foreclosed upon, Debtor Camara apparently wrote to SunTrust or its attorneys
requesting, inter
alia, a copy of the note in SunTrust's possession. On September 26, 2009,
Camara received from
one of SunTrust's attorneys a 3-page copy of the note, attached hereto as Exh.
B. The last page
of the Note produced by SunTrust contained a stamp with words "Without
Recourse / PAY TO
THE ORDER OF / SunTrust Mortgage Inc. / Deborah P. Ellis, Vice President." Id.
In other
words, the note produced by SunTrust in September 2009 consisted of 3 pages
 and contained a
blank endorsement by SunTrust (thus evidencing a transfer of the note by
SunTrust to another
entity). As will be shown below, these 3 pages, with page 3 containing SunTrust's
blank
endorsement, are what the Court will see if it examines the original note.

The Deed of Trust accompanying the Note was signed by Debtor Camara on
February 18,
2005 and subsequently recorded in Prince William County, Virginia. The Deed of
Trust lists
Synergy One as the "Lender," and Mortgage Electronic Registration Systems,
Inc. ("MERS") as
"the beneficiary" of the Deed of Trust "solely as nominee for Lender and Lender's
successors and
assigns." See Exh. A to SunTrust's lift-stay motion [Dkt.29] (copy of Deed of
Trust).
The Deed of Trust was given by Debtor Camara and Joint Debtor Lee "to Robert
T. Heltzel as
[blank] and Eula R. Morgan as Trustee, for the benefit of [MERS] as beneficiary.
Id.
Upon information and belief, and a search of appropriate SEC filings, Synergy
One does
not fund mortgage loans it originates, but operates under a Flow Servicing
Agreement or other
similar agreement with another entity or entities that provide the actual funds
used to fund
mortgages originated by Synergy One. Because Synergy One uses someone
else's funds, it
charges, inter alia, a yield spread premium (YSP) that makes loans more costly
to consumers and
that violates federal consumer protection laws when undisclosed.

Currently, neither Synergy One nor SunTrust owns the Note (and thus the
Debtors'
mortgage loan), as the loan is listed as having been owned by Fannie Mae. Exh.
D (Fannie May
loan database printout). Fannie Mae, in turn sells about 85% of all mortgages it
owns to
investors through the process known as securitization, and has most likely sold
the Note to
unknown third parties. See, e.g., James R. Barth et al., A Short History of the
Subprime
Mortgage Market Meltdown 5 (Milken Institute 2008), available at
http://www.milkeninstitute.org/publications (showing percentage of securitized
mortgages by
issue date).

Bankruptcy Events

Some time on or after March 2, 2009, Debtors fell in default on their obligations
under
the Note. See Exh. C to SunTrust's lift-stay motion (copy of payment schedule).
On February 4,
2010, Debtors filed a Chapter 13 petition. [Dkt.1]. On February 17, 2010, said
 petition was
converted into a Chapter 7 petition. [Dkt.13].
On March 25, 2010, SunTrust, through its attorneys, filed a Motion for Order
Granting
Relief From Automatic Stay. [Dkt.29]. Attached to that motion as an exhibit was a
copy of the
Note, allegedly in possession of SunTrust, which contained 4 pages (rather than
3 contained in
the September 2009 version produced by SunTrust), with the third page not
containing a blank
endorsement by SunTrust, and the fourth page purporting to evidence a special
endorsement of
the Note from Synergy One to SunTrust. See Exh. B to SunTrust's motion to lift
stay [Dkt.29]
(copy of the Note). A copy of this version of the Note is also attached hereto as
Exh. C for easy
-5-
comparison and contrast with the original 3-page version produced by SunTrust
prior to its filing
of its lift-stay motion. The purported special endorsement is undated. Id. Further,
there is no
evidence that the alleged special endorsement is affixed to the original Note. On
the contrary,
circumstantial evidence (such as: (1) the special endorsement being on a
separate page 4 even
though there is still room on page 3 of the Note, and (2) the presence of a blank
endorsement by
SunTrust on Page 3 of an earlier version, and (3) the absence of the blank
endorsement on page 3
of the later, 4-page version) strongly points to the conclusion that the 4-page
version is not a copy
of the original note, and that page 4 was added ad hoc to mislead the Court as to
the actual right
(or lack thereof) of SunTrust to enforce the note. See Exs. B & C.
In light of the above facts, Debtors oppose SunTrust's lift-stay motion. For the
reasons
stated fully below, the lift-stay motion should be denied and applicability of Rule
9011 sanctions
should be considered against SunTrust and its attorneys.

ARGUMENT I. STANDARD OF LAW

It is axiomatic that, in coming to federal court to enforce an alleged right, movant

SunTrust must comply with the applicable procedures of the federal court and
applicable law. In
the words of this Court, "it is not sufficient that the debtor owes someone money;
the issue is
whether the debtor (and hence the bankruptcy estate) owes it to the party filing
the proof of claim
[or lift-stay motion]." In re King, No. 08-13152-SSM, (Bankr. E.D. Va. 2009)
(emphasis in
original).
-6-
A. Law and Rules Governing Lift-Stay Motions
Section 362(a) of the Bankruptcy Code provides that the filing of a bankruptcy
 petition
operates as a stay of collection and enforcement actions. 11 U.S.C. § 362(a).
The purpose of the
automatic stay is "to give the debtor a breathing spell and to prevent a race by
creditors against
the debtor's assets until such time as the bankruptcy court can sort out the
respective interests of
the debtor, the bankruptcy estate, and creditors." In re Jones, 348 B.R. 715, 717-
18 (Bankr. E.D.
Va. 2006).
Section 362(d) allows the court, upon request of a "party in interest," to grant
relief from
the stay, "such as terminating, annulling, modifying, or conditioning such stay." 11
U.S.C. §
362(d)(1). The court may grant relief "for cause, including the lack of adequate
protection." Id.
The court may also grant relief from the stay with respect to specific property of
the estate if the
debtor lacks equity in the property and the property is not necessary to an
effective
reorganization. 11 U.S.C. § 362(d)(2).

Pursuant to Local Rule 4001(a)-1(A), "[a]ll motions for relief from stay . . . are
contested
matters and are governed by FRBP 9014, 11 U.S.C. § 362[] and [the] Local
Bankruptcy Rules."
Local Rule 4001(a)-1(D) provides that the following elements "must be included
in a motion for
relief from stay: . . . (4) a description of the security interest and its perfection; (5)
a statement of
the basis for the relief claimed . . . . The specific facts constituting cause shall be
set forth if a
motion is brought for cause." (Emphasis added.) Thus, this Court's rules of
procedure require
that each lift-stay motion contain certain indispensable elements, the absence of
which should
result in a denial of such motion, just like a complaint failing to state a claim
would be subject to
dismissal on a 12(b)(6) motion.

-As noted above, lift-stay motions are contested matters governed by, inter alia,
Rule
9014. Rule 9014, in turn, makes such motions subject to Rule 7017, which, in
turn, incorporates
Fed. R. Civ. P. 17 providing that an "action must be prosecuted in the name of
the real party in
interest." As this Court previously noted, "[i]t is axiomatic that in federal courts a
claim may
only be asserted by the real party in interest. Rule 7017 of the Federal Rules of
Bankruptcy
Procedure incorporates the provisions of Rule 17 of the Federal Rules of Civil
Procedure. . . .
The purpose of Rule 17 is to ensure that the person bringing a lawsuit has the
right to enforce
the asserted claim." In re Smith, 419 B.R. 622, 628 (Bankr. E.D. Va. 2008)
 (citation omitted)
(emphasis added) (finding purported creditor lacked standing to file proof of claim
with respect
to judgment rendered in favor of another party).
Importantly, as a general rule, a person who is an attorney-in-fact or an agent
solely for
the purpose of bringing suit is viewed as a nominal rather than a real party in
interest and will be
required to litigate in the name of his principal rather than in his own name. See,
e.g., In re
Hwang, 396 B.R. 757 (Bankr. C.D. Cal. 2008) (quoting 6A Wright, Miller & Kane,
Federal
Practice and Procedure: Civil 2d § 1553).

B. "Standing" And "Real Party In Interest"

Since a movant seeking relief from stay is seeking to exercise a right stayed by §
362(a), a
movant for relief from stay bears the burden of proof that it has standing to bring
the motion. See,
e.g., In re Wilhelm, 407 B.R. 392 (Bankr. D. Idaho 2009).
"To obtain stay relief, each Movant must have standing, and be the real party in
interest
under Federal Rule of Civil Procedure 17." Id. at 398. "Standing" and "real party
in interest" are
concepts that are related but not identical. Standing encompasses two major
components:
-8-
"constitutional limitations on federal court jurisdiction and prudential limitations on
its exercise,"
Warth v. Seldin, 422 U.S. 490, 498 (1975), while "real party in interest" is
generally part of
"standing," as discussed below.
Constitutional standing concerns whether the plaintiff's personal stake in the
lawsuit is
sufficient to have a "case or controversy" to which the federal judicial power may
extend under
Article III. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992).
Prudential standing includes the idea that a party must assert its own claims,
rather than
another's. See, e.g., Warth, 422 U.S. at 499. The purpose of this rule is to require
that an action be
brought in the name of the party who possesses the substantive right being
asserted under the
applicable law. Smith, 419 B.R. at 629. Thus, the requirement of Fed. R. Civ. P.
17, made
applicable to stay relief motions by Rule 9014, "generally falls within the
prudential standing
doctrine." In re Wilhelm, 407 B.R. at 398; accord. In re Taylor, 252 B.R. 346
(Bankr. E.D. Va.
1999) (discussing Rule 17 and "real party in interest" as part of "standing"); In re
Dove, 199 B.R.
342 (Bankr. E.D. Va., 1996) (applying Rule 7017 and finding lack of standing); In
Re Sposa, 31
B.R. 307 (Bankr. E.D. Va. 1983) (similar).
Finally, to obtain relief in federal court, a party must meet both the constitutional
 requirements (Article III) and the prudential requirements (including "real party in
interest") of
standing. See, e.g., Morrow v. Microsoft Corp., 499 F.3d 1332, 1339 (Fed. Cir.
2007).
In the instant proceeding, Debtors challenge SunTrust's status as a party having
constitutional standing under Article III or having prudential standing as a "real
party in interest"
under FRCP 17 in the context of a 11 U.S.C. § 362 proceeding.
-9-
II. SUNTRUST DOES NOT HAVE STANDING TO BRING THE LIFT-STAY
MOTION.
A. SunTrust Has Not Demonstrated That It Has The Right To Enforce
The Note.
Mortgage notes are commercial paper (whether negotiable or non-negotiable)
covered by
the Uniform Commercial Code as adopted by each of the Fifty States, including
Virginia. Va.
Code § 8.1A-101 et seq.; First Nat. Exchange Bank v. Johnson, 355 S.E.2d 326
(Va. 1987)
(applying Virginia's version of UCC to mortgage notes). When a party seeks to
enforce a note
against a debtor, the debtor not only has the right, but also has the responsibility
to demand
production of the note. See, e.g., Lambert v. Baker, 348 S.E.2d 214, 216-17 (Va.
1986) ("payor
may protect himself by demanding production of the instrument and refusing
payment to any
party not in possession unless in an action on the obligation the owner proves his
ownership; . . .
it was [defendant payor's] responsibility to raise and establish this affirmative
defense").
Because SunTrust is seeking to enforce the February 18, 2005 Note executed in
favor of a
different entity (Synergy One) and seeks relief from stay claiming a right to
enforce the Note, it is
necessary to determine whether SunTrust indeed has such a right. In doing so,
we must look to
the substantive law governing promissory notes. See, e.g., Butner v. United
States, 440 U.S. 48,
54-55 (1979) (nature and extent of property interests in bankruptcy are
determined by applicable
state law). In Virginia, such law is Virginia's version of the UCC, codified in Va.
Code § 8.1A-
101 et seq.
Under Virginia law, with exceptions not relevant here, a person is entitled to
enforce an
instrument, such as a promissory note, only if such person is "(I) the holder of the
instrument,
[or] (ii) a nonholder in possession of the instrument who has the rights of a
holder." Va. Code §
-10-
8.3A-301. A "holder," in turn, is defined as the "person in possession of a
negotiable instrument
that is payable either to bearer or to an identified person that is the person in
possession." Va.
 Code § 8.1A-201(b)(21). Further, "if an instrument is payable to an identified
person,
negotiation requires transfer of possession of the instrument and its endorsement
by the holder."
Va. Code § 8.3A-201(b) (emphasis added). An "endorsement," in turn, is "a
signature . . . that . . .
is 'made on an instrument' . . . [and] a signature is 'made on a instrument' [if it is
on] a paper
affixed to the instrument." Va. Code § 8.3A-204(a) (emphasis added).
In other words, where, as here, an instrument (the Note) is payable to an
identified person
(Synergy One), its initial negotiation (transfer) requires an endorsement by that
person as a
holder in possession, and the "[e]ndorsement must be written . . . on the
instrument or on a paper
so firmly affixed thereto as to become a part thereof." Adams v. Madison Realty &
Dev., Inc., 853
F.2d 163 (3d Cir. 1988).
The above principles are well illustrated by a number of recent Bankruptcy
decisions all
across the country. For instance, a situation almost identical to the case at bar
was considered in
In re Wilhelm, 407 B.R. 392 (Bankr. Idaho 2009), where the bankruptcy court
denied several liftstay
motions, holding that none of the several banks posing as secured creditors
actually had
standing to enforce the mortgage notes against the debtors. Id. at 405. Just as in
the instant case,
each subject note in Wilhelm was payable to an entity other than the movant and
was not properly
endorsed to the movant either in blank or specially. Id. at 397. Applying Idaho's
version of UCC
(which is virtually identical to Virginia's), the Wilhelm court noted that to "qualify
as holders,
these Movants must possess an indorsed note." Id. at 402. The court then
proceeded to determine
that none of the movants could qualify as a holders or non-holders with rights to
enforce because
-11-
"none of these notes [had been] indorsed, either in blank or specially" and
because the movants
"failed to establish they possess the notes at issue." Id. at 402-03.
Similarly, in In re Weisband, 4:09-bk-05175 (Bankr. Ariz., March 29, 2010), the
court
denied a stay relief motion where the movant, even though in possession of the
note (unlike in
the instant case), "failed to demonstrate that the Note is properly payable to [it]."
Id. at *8
(opinion attached hereto as Ex. E). Importantly, the movant in Weisband (called
GMAC)
produced two versions of the note at issue, just like movant SunTrust in the
instant case. The
first version, submitted with GMAC's proof of claim, did not contain an
endorsement by original
payee (called GreenPoint) to GMAC. The second version, submitted with a
 subsequent lift-stay
motion, contained an extra page with a purported endorsement from GreenPoint
to GMAC. Id. at
*1-*2. Similar to the case at bar, the movant in Weisband claimed that "its status
as a servicer,
along with the Endorsement of the Note to GMAC and the assignment of the
[deed of trust] from
MERS to GMAC, demonstrated that it had standing to bring the Motion." Id. The
court
disagreed and denied stay relief. Id.
Applying Arizona's version of the UCC, the Weisband court held that the
evidence
presented (including the two different versions of the note and an endorsement
on a separate
page) did not demonstrate the movant's standing. Id. at *4. The court noted that
"for the
Endorsement to constitute part of the Note, it must be on a paper affixed to the
instrument. . . .
Here, . . . the Endorsement is on a separate sheet of paper; there was no
evidence it was stapled
or otherwise attached to the rest of the Note." Id. The Weisband court then
continued that,
additionally,
-12-
there is no proof that the allonge containing the special endorsement from
GreenPoint to GMAC was executed at or near the time the Note was executed.
Furthermore, the Endorsement does not have any identifying numbers on it, such
as an account number or an escrow number, nor does it reference the Note in
any
way. There is simply no indication that the allonge was appropriately affixed to
the Note.
Id. at *5. The same reasoning applies to SunTrust's purported separate-page
endorsement
submitted in this case. It is simply not part of the original Note, and the two
versions of the Note
produced by SunTrust demonstrate so. Exs. B & C.
More specifically, in light of the Virginia statutes and the case law discussed
above, to
establish its right to enforce the Note in the instant case, SunTrust would have to
demonstrate
that Synergy One endorsed the Note to SunTrust when (1) Synergy One was in
possession of the
Note and (2) on the Note itself or at least a paper affixed to the original Note.
SunTrust's
evidence before the Court fails to establish either of these two elements and
actually points to the
contrary. Specifically, the evidence shows that the purported endorsement on
Page 4 was not
made when Synergy One was a holder in possession of the Note, and that said
claimed
endorsement was never affixed to the original Note so as to become a part
thereof.
In particular, since the Note was sold to Fannie Mae, Ex. D, as also evidenced by
SunTrust's blank endorsement on page 3, it defies common sense that Synergy
One's purported
 endorsement to SunTrust predating the sale to Fannie Mae would appear on
some separate page
4 and after SunTrust's blank endorsement on page 3. The better interpretation of
this "evidence"
is that the Note was never properly negotiated from Synergy One to SunTrust,
and that the
claimed endorsement on Page 4 was done after-the-fact and solely to facilitate a
fraudulent
foreclosure of Debtors' home.
Moreover, since SunTrust is likely no longer in possession of the original Note
due to the
Note's sale to Fannie Mae, Ex. D., the purported extra-page endorsement cannot
be made part of
the original Note. Nor can SunTrust claim an ownership interest in the Note after
the Note's sale
to Fannie Mae. Id. SunTrust's claims that it has possession of the Note and that
the purported
endorsement is part of the original Note therefore constitute fraud upon this court
and may
warrant, inter alia, Rule 9011 sanctions. See, e.g., In re Lee, 408 B.R. 893, 896-
97 (Bankr. C.D.
Cal. 2009 (sanctions imposed where "original note has a [blank] indorsement by
[movant]" while
"the copy of the note attached to the motion for relief from stay omits this
indorsement" so that
the "motion did not disclose the sale of the note or the indorsement"). The Lee
opinion is
attached hereto as Ex. F.
SunTrust's lift-stay motion should therefore be denied and SunTrust's purported
claim
with respect to Debtors' home should be disallowed under 11 U.S.C. § 502(b)(1)
as a claim that
"is unenforceable against the debtor and property of the debtor, under any
agreement or
applicable law." Id.
III. SUNTRUST'S LIFT-STAY MOTION FAILS TO ESTABLISH ABSENCE
OF ANY EQUITY IN DEBTORS' HOME.
Under 11 U.S.C. § 362(g), the party requesting relief has the burden of proof on
the issue
of equity. Id. SunTrust, with respect to the grounds for relief from the automatic
stay, has failed
to produce sufficient evidence to carry its burden of proof on the issue as to the
lack of equity in
Debtors' home. On the contrary, SunTrust's motion sets forth the amount of debt
(which
SunTrust has no standing to collect, as discussed above) at $292,371.66, while
setting forth the
value of the home at $328,900.00. See SunTrust's lift-stay motion [Dkt.29] at 2
(unnumbered
pages). Since 11 U.S.C. § 362(d)(2) requires that there be no equity in the
subject property in
-14-
order for stay relief to be granted, and SunTrust failed to establish that this
requirement is met,
SunTrust's motion should be denied on this basis as well.
 CONCLUSION
Because SunTrust has failed to establish that it has the right to enforce the Note,
much
less enforce it by way of foreclosure, and because its lift-stay motion fails to carry
the required
burden of proof with respect to the issue of equity in Debtors' home, SunTrust's
motion for relief
from automatic stay should be denied.
Respectfully submitted,
/s/ Gregory Bryl
Gregory Bryl, Esq.
VSB# 45225
6560 Backlick Road, Suite 211A
Springfield, VA 22150
703-861-1906
703-997-5925 fax
help@bryllaw.com
Attorney for Plaintiffs
-15-
CERTIFICATE OF SERVICE
I certify that on April 23, 2010, I caused a copy of the foregoing document, with
exhibits,
if any, to be sent via the Court’s CM/ECF to the following:
Edward S. Jones
Shapiro & Burson, LLP
236 Clearfield Avenue, Suite 215
Virginia Beach, VA 23462
Kevin R. McCarthy
1751 Pinnacle Drive, Suite 1115
McLean, VA 22102
/s/ Gregory Bryl
Gregory Bryl, Esq

Sylvia Sirmonss Well they are still at it in Indiana. Robbing the American people of
their homes. We have been fighting since 2006 and are still at it. It
06/09/10 at started with Countrywide and has went to New Century and thru
12:45 AM assignment has gone to Deutshe Bank, with Fraud all through the
loan, and Appraisal's changed and forged. New Century is
Bankrupt. The broker was employed thru Empire Equity of New
Jersey, and on December 31, 2009 they went bankrupt. So who do
they (Deutshe Bank) come after, The Sirmons because they didn't
check the paper that they bought, and then sold to a German Bank
in Pass thru Cettificates. Now we have asked for them to Produce
the Documents and of course they sent copies, and not the Note it
self. We wrote a letter of Recission and they ignored us, and we
then hired an Attorney and she wrote a letter of Recission and they
pretty much told her, we had no right to Recind. So now we are at
Bankruptcy ourselves, and of course they have presented a Motion
to Stay, so now we have to go at the end of this month to fight the
Motion. We have been in our home since July 1, 2004, that is 6
 years, and I don't want to move!

Ann Case No

06/08/10 at WELLS FARGO BANK, N.A., Successor By

04:56 PM Merger to Wells Fargo Bank Minnesota, National
Association, Solely in its Capacity as Trustee,
Under the Pooling And Servicing Agreement
Dated September 1, 1999, Home Equity Loan
Asset Backed Certificates, Series 1999-3,
Plaintiff,
vs.
John Smith al.,
Defendants.
/
DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S
"ORIGINAL NOTE" AND ALLONGES

COMES NOW the Defendant, John Smith , and pursuant to Rule 1.140(f) moves
this honorable Court to strike the documents placed into the court file on October
17, 2009
referred to by the Plaintiff as the "original note," and in support thereof states as
follows:

1. When the Plaintiff initially filed its Complaint On July 25, 2008 it failed to
support the Complaint with any original documentation, negotiable instrument,
note or mortgage.
Attached to the Complaint was a photocopy of the May 21, 1999 promissory note
obligating the Defendant to the "original lender" APPROVED, and a photocopy of
an alleged allonge assigningthe note from "Approved Residential Mortgage Inc."
(hereinafter "APPROVED") to "NorwestBank Minnesota N.A. As Trustee For
Provident Bank Home Equity Loan Trust 1999-3"(hereinafter "NORWEST").
There was no documentation filed with the complaint connectingthe note or
mortgage to the named Plaintiff WELLS FARGO BANK, N.A. (hereinafter
"WELLS FARGO"). The Plaintiff at that time sought reestablishment of the
original note which it claimedwas "lost, destroyed or stolen."

2. On October 17, 2008 the Plaintiff filed a document into the case file purported
to
be the "Original Note" along with two allonges, one allonge being identical to the
allonge filed with the Complaint, purportedly assigning the note to NORWEST,
and the other allonge titled NOTE ALLONGE, which was not initially filed with the
complaint, allegedly assigning an attached note from the Plaintiff WELLS FARGO
to itself as trustee (hereinafter "WELLS FARGO allonge"). Copies of the note and
allonges are attached as Exhibit B.

3. On February 10, 2009 the Plaintiff filed into the case file a copy of an
Assignment
of Mortgage which assignment was executed on August 20, 2004 and filed into
the Hernando
County official records on September 9, 2004, a copy of which is attached
herewith as Exhibit A.
4. Regardless of the document's title, the said Assignment of Mortgage assigned
both the note and mortgage constituting the subject or res of this action to The
Provident Bank, Inc., reading as follows in pertinent part:
"...APPROVED RESIDENTIAL MORTGAGE,...does convey, grant, bargain, sell,
assign, transfer and set over to: THE PROVIDENT BANK, INC., ...The described
Mortgage, together with the certain note(s) described therein with all interest, all
liens, and any rights due or to become due thereon..."

5. On February 16, 2010 the Defendant inspected the alleged "Original Note"
placed
in the file and denies its authenticity and that of the purported signature thereon
(see "Affidavit of Defendant, John Smith in Opposition to Plaintiff's Motion for
Summary Judgment" filed concurrently herewith and incorporated herein by
reference thereto.

6. On the same date the Defendant observed that while there is generous room
on the
Note itself for indorsement, there is no indorsement on the Note, and the allonges
filed with the note were not attached affixed to the note prior to filing.

7. Further the indorsements on the allonges were never verified by affidavit or

testimony, were undated and unauthenticated by any corporate seal or stamp.
Even if the alleged "original note" filed by the Plaintiff on October 17, 2008 is
ruled to be authentic, it remains unenforceable because the alleged allonges are
rendered invalid for violation of the rule of affixation to the note and authentication
pursuant to F.S. § 673.2041(1) and Booker v. Sarasota Inc., 707 So.2d 886
(Fla.App. Dist.1 03/06/1998):
"The allonge, ultimately filed with the court had never previously been verified by
affidavit or testimony, nor had it been provided to the court or to Booker in the
form of an amended complaint. A Florida court may not consider an
unauthenticated document in ruling on a motion for summary judgment,
even where it appears that the such document, if properly authenticated, may
have
been dispositive. See Tunnell v. Hicks, 574 So. 2d 264, 266 (Fla. 1st DCA
1991)."

8. Furthermore, even if the alleged "original note" filed by the Plaintiff on October
17, 2008 is ruled to be authentic, it remains unenforceable because the alleged
allonges are
contradicted and invalidated by competing evidence entered by the Plaintiff in the
recorded
Assignment of Mortgage (Exhibit A), showing another named signatory assigning
both the note and mortgage to Provident Bank on August 20, 2004. This fact is
corroborated by the
aforementioned affidavit of title attorney Gregory D. Clark, Esq., filed concurrently
herewith and fully incorporated herein by reference thereto. The allonges filed on
October 17, 2008 are therefore not valid and must be stricken.

9. Furthermore the WELLS FARGO allonge filed on October 17, 2008 is a sham
on
its face as it allegedly assigned the res to itself, was not filed with the Complaint,
and the
Plaintiff can not be allowed to amend the record with exhibits that did not exist
when the action was filed.
 WHEREFORE, the Defendant, John Smith , respectfully moves this court to
strike the alleged "original note" along with the allonges filed therewith on
October 17, 2008.
Respectfully submitted on this day of March, 2010.

John Smith
MEMORANDUM OF LAW

Regarding the note and allonges in this instant case: while there is generous
room on the
Note itself for indorsement, there is no indorsement on the Note, and the allonges
were not
previously affixed to the note. Further the indorsements on the allonges were
never verified by affidavit or testimony, were undated and unauthenticated by any
corporate seal or stamp.

Even if the alleged "original note" filed by the Plaintiff on October 17, 2008 is
ruled to be authentic, it remains unenforceable because the alleged allonges are
rendered invalid for violation of the rule of affixation to the note and authentication
pursuant to F.S. § 673.2041(1) and Booker v.Sarasota Inc., 707 So.2d 886
(Fla.App. Dist.1 03/06/1998):
[17] Contrary to other arguments now advanced by Sarasota, Inc., the trial court
could not simply assume that Sarasota, Inc. held the note, or that the photocopy
of an
allonge, filed after the hearing on the motion for summary judgment, was of
appropriate evidentiary value. Booker has correctly pointed out that in order to be
the
real party in interest on a promissory note, the plaintiff must be the holder of the
note. See Troupe v. Redner, 652 So. 2d 394, 395-396 (Fla. 2d DCA 1995).

Here, the allonge, attached to the complaint, and referred to by Sarasota Inc.'s
affidavit in
support of its motion for summary judgment, showed an assignment of the note
from
an institution other than Citizens and Builders. The allonge, ultimately filed with
the
court had never previously been verified by affidavit or testimony, nor had it been
provided to the court or to Booker in the form of an amended complaint. A Florida
court may not consider an unauthenticated document in ruling on a motion for
summary judgment, even where it appears that the such document, if properly
authenticated, may have been dispositive. See Tunnell v. Hicks, 574 So. 2d 264,
266
(Fla. 1st DCA 1991).

[19] "An allonge is a piece of paper annexed to a negotiable instrument or

promissory note, on which to write endorsements for which there is no room on
the
instrument itself. Such must be so firmly affixed thereto as to become a part
thereof."
Black's Law Dictionary 76 (6th ed. 1990). Florida's Uniform Commercial Code
does
not specifically mention an allonge, but notes that "for the purpose of determining
whether a signature is made on an instrument, a paper affixed to the instrument
 is
part of the instrument. § 673.2041(1), Fla. Stat. (1995)." Federal rulings on the
Uniform Commercial Code (UCC) in regard to the negotiation and enforcement of
negotiable instruments are applicable to this issue in that the UCC is in effect
enacted into the Florida statutes.

In Adams v. Madison Realty & Development Inc., 853 F.2d 163

(3rd Cir. 07/22/1988) the 3rd Circuit ruled as follows, with emphasis added:
[32] Article 3 of the Uniform Commercial Code incorporated many portions of
its predecessor, the Uniform Negotiable Instruments Law (NIL), drafted in 1896
by the National Conference of Commissioners on Uniform State Laws. By 1924,
the NIL had been adopted in every state. See 2 F. Hart & W. WiIlier, Commercial
Paper Under the Uniform Commercial Code § 1.06, at 1-25 to -26 (1988). When
it was transplanted into the 1956 draft of the Uniform Commercial Code, the
indorsements provision was altered in only a minor respect. Section 31 of the NIL
had specified that a proper indorsement "must be written on the instrument itself
or upon a paper attached thereto." The Code substituted the words "so firmly
affixed as to become a part thereof" for the phrase "upon a paper attached
thereto."...

[34] A holder in due course must take the instrument for value, in good faith,
and without notice that it is overdue, that it has been dishonored, or that a claim
or
defense to it exists on the part of any person. See U.C.C. § 3-302(1). But
preliminarily, a person seeking to become a holder in due course must satisfy the
threshold requirements for becoming a "holder," the critical issue on this appeal.
[35] The Code defines a holder as one 'who is in possession of . . . an
instrument . . . drawn, issued or indorsed to him or to his order." U.C.C. § 1-
Defendant's Motion to Strike Note and Allonges - page 5 of 6

201(20). Mere ownership or possession of a note is insufficient to qualify an

individual as a "holder." The instrument must be obtained through a process the
Code terms "negotiation," defined as "the transfer of an instrument in such form
that the transferee becomes a holder." U.C.C. § 3-202(1). If the instrument is
payable to order -- as is the case with the notes here -- negotiation is
accomplished "by delivery with any necessary indorsement." Id.
[36] In explaining the requirement that the indorsement be on or firmly affixed
to the instrument, the Official Comment states that the Code "follows decisions
holding that a purported indorsement on a mortgage or other separate paper
pinned or clipped to an instrument is not sufficient for negotiation. The
indorsement must be on the instrument itself or on a paper intended for the
purpose which is so firmly affixed to the instrument as to become an extension or
part of it. Such a paper is called an allonge." U.C.C. § 3-202 Official Code
Comment (3)...

[38] The Code's requirement that an indorsement be "firmly affixed" to its

instrument is a settled feature of commercial law, adopted verbatim by every
American state, the District of Columbia, and the Virgin Islands. See 5 R.
Anderson, Uniform Commercial Code § 3-202:2, at 416 (3d ed. 1984) (citing
codifications). With a unanimity unusual in decisional law, the directive has been
faithfully observed.
[39] The historical origins of the provision have been chronicled to the days of
the Law Merchant. See Pribus v. Bush, 118 Cal. App. 3d 1003, 173 Cal. Rptr.
747
749 (1981). The practice of multiple indorsements which accompanied the growth
 in commerce eventually led to acceptance of the use of allonges. See id.; Estrada
v. River Oaks Bank & Trust Co., 550 S.W.2d 719, 725 (Tex. Ct. App. - Houston
[14th Dist.] 1977, writ ref'd n.r.e.). Even today, however, numerous jurisdictions
permit allonges only where, because of multiple indorsements, no additional
space for signatures remains on the negotiable instrument. See, e.g., Pribus, 173
Cal. Rptr. at 751; Tallahassee Bank & Trust Co. v. Raines, 125 Ga. App. 263,
187
S.E.2d 320, 321 (1972). But see Crosby v. Roub, 16 Wis. 616, 723-24 (1863)
(allonge permitted even where space remains on note).
[40] When the drafters of the Uniform Commercial Code replaced the term
"attached" in the NIL with the phrase "firmly affixed," they intended to make the
use of allonges more difficult. See Hills v. Gardiner Savings Institution, 309 A.2d
877, 880-81 (Me. 1973); Estrada, 550 S.W.2d at 728; 5 Anderson, supra, § 3-
202:05. Courts have advanced two justifications for the firmly-affixed
requirement. The California Court of Appeals reasoned that the provision serves
to prevent fraud, remarking that a signature innocently placed upon an innocuous
sheet of paper could be fraudulently attached to a negotiable instrument in order
to simulate an indorsement. Pribus, 173 Cal. Rptr. at 750. But cf. Lamson v.
Commercial Credit Corp., 187 Colo. 382, 531 P.2d 966, 968 (1975) (allonge
consisting of two legal sheets stapled to two small checks held valid because
signing on checks valid themselves would have been impossible; "stapling is the
modern equivalent of gluing or pasting").
[41] The affixation requirement has also been cited for its utility in preserving a
traceable chain of title, thus furthering the Code's goal of free and unimpeded
negotiability of instruments. Nearly a century ago, the Supreme Court of Georgia
declared it "indispensably necessary" that negotiable instruments "should carry
within them the indicia by which their ownership is to be determined; otherwise,
their value as a circulating medium would be largely curtailed, if not entirely
destroyed." Haug v. Riley, 101 Ga. 372, 29 S.E. 44, 46 (1897). See also Crosby,
16 Wis. at 724 (permanently attached indorsements to instrument "travel with it
wherever it might go"). Chancellor Hawkland writes that it would be
"unreasonable to impose upon the indorsee the risk that the present holder or a
prior holder had negotiated the instrument to someone not in the apparent chain
of
title by virtue of a separate document." 4 W. Hawkland & L. Lawrence, Uniform
Commercial Code Series § 3-202:05 (1984).

Ann MOTION FOR SANCTION GRANTED AGAINST LASALLE BANK -

THE MEDIATION TRAP
05/11/10 at
09:09 PM In the 19th Circuit Court today defendants fighting their foreclosure
were granted relief against LaSalle Bank for failure to have a
lenders representative appear at Foreclosure Mediation with
Settlement Authority. The court awared, as requested by Florida
Defense Teams‘ Motion, that LaSalle Bank will be compelled to
reappear at mediation, at LaSalle‘s expense, with a person who has
full settlement authority as dictated by the Pooling and Servicing
Agreement. This is what we now refer to as the mediation ―trap‖ for
the unwary lender. Foreclosure Admin Orders in Florida require all
conditions of the order to be fulfilled before setting trial or
summary judgment hearing. The pretend lender is now trapped
 into a mediation that cannot be attended. It is settled law that
appellate courts have held that FRCP 1.70 (mediation requirement)
require a person to appear with full settlement authority. The PSA
only gives limited authority to modify the note, and only to a
specific servicer, which will not typically be the plaintiff in the case.
Unless an amended 8k is filed, the PSA is the controlling document.
Additionally the new Florida Supreme Foreclosure Mediation Order
demands Plaintiff to submit original note, chain of Title, and
submission of Pooling and Servicing agreement to Defendant before
being released from the Order.
If your case does not qualify for mediation you still can motion the
court for mediation and split the Fee with Lender. Then the funs
begin....

Ann FLORIDA MOTION TO DISMISS WITH PREJUDICE IF THE CASE IS

FILED AFTER SUPREME COURT ORDER FEB 11/2010
04/29/10 at --------------------------------------------------------------------------
10:55 PM
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT,
IN AND FOR PINELLAS COUNTY, FLORIDA CIVIL DIVISION

NATIONSTAR MORTGAGE LLC, CASE NO. lO-6330-CI-20

PLAINTIFF,

v.

CRAIG K. LUNT AND DOROTHEA C.

LUNT, DEFENDANT.

DEFENDANT'S MOTION TO DISMISS ACTIONIMOTION FOR

MORE DEFINITE STATEMENT

COMES NOW, the Defendants CRAIG K. LUNT and

DOROTHEA C. LUNT (hereinafter "Defendants") by and
through the undersigned counsel MATTHEW D. WEIDNER
and respectfully moves this Court to DISMISS WITH
PREJUDICE the above entitled civil action, pursuant to
Rules 1.420(b) and 1.11O(b) Fla. R. Civ. P., and precedent
case law, and in support thereof states: FACTS

1. This is an action for foreclosure of residential real

property owned by the Defendants.

1. The named Plaintiff in this case is ABC (hereinafter

 "Plaintiff'). The Plaintiff initiated this action when it
filed its complaint on or about April 20. 2010.
2. The Plaintiffs complaint is devoid of any oath,
affirmation, or verification statement which should
state "under penalty of perjury, I declare that I have
read the foregoing, and the facts alleged therein are
true and correct to the best of my knowledge and
belief' as mandated by Fla. R. Civ. Pro. 1.11 O(b).

4. Upon information and belief, the Plaintiffs counsel

deliberately chose to not include

such an oath, affirmation, or verification statement in the

complaint.

1. The Plaintiffs counsel has been warned repeatedly by

defense attorneys across the state, including your
undersigned counsel, of their failure to include this
information in foreclosure complaints filed by their
firm. Nevertheless, to date, the Plaintiffs counsel has
refused to provide any reasonable justification, either
in this case or in any case known to your
undersigned counsel, for their failure to abide by the
express mandate of Rule 1.11 O(b).
2. Moreover, upon information and belief, the Plaintiff
itself has manifested to its counsel, either directly or
indirectly, that counsel should not comply with Rule
1.11 O(b) for reasons herein unknown.

STANDARD OF REVIEW

1. In ruling on a defendant's motion to dismiss, a trial

court is limited to the four corners of the Complaint,
and it must accept all the allegations in the
Complaint as true. See Lutz Lake Fern Rd.
Neighborhood Groups, Inc. v. Hillsborough County,
779 So.2d 380, 383 (Fla. 2d DCA 2000).
2. A motion to dismiss tests whether a plaintiff has
stated a cause of action. Crocker v. Marks, 856
So.2d ] 123 (Fla. 4th DCA 2003).

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S

MOTION
 I. The Plaintiff's Complaint Should be Dismissed
for Failure to Attach a Verified Complaint

a. LegalStandards

9. Fla. R. Civ. Pro. 1.420(b) provides, in pertinent part,

that "[a]ny party may move for dismissal of an action or of
any claim against that party for failure of an adverse party
to comply

with these rules or any order of court." Thus, any

judgment which is not in compliance with the

Florida Rules of Civil Procedure is null and void.

1. The dismissal of action or claim for failure of an

adverse party to comply with the Rules of Civil
Procedure or any order of the court operates as an
adjudication on the merits. =="--'-'Airport Mini-Storage,
782 So.2d 983 (Fla. 3d DCA 2001).
2. In Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993),
the Florida Supreme Court listed six factors which
trial courts should use in determining whether to
dismiss a case with prejudice and noted that "if a
sanction less severe than dismissal with prejudicial
appears to be a viable alternative, the trial court
should employ such an alternative." ld at 818. The
trial court is therefore allowed other measures of
dispute resolution, such as dismissal without
prejudice, should the court feel dismissal without
prejudice is a more proper remedy.
3. Nevertheless, the six factors listed in Kozel are as
follows: (1) whether attorney's disobedience was
willful, deliberate, or contumacious; (2) whether
attorney was previously sanctioned; (3) whether
client was personally involved in act of disobedience;
(4) whether the disobedience prejudiced opposing
party; (5) whether attorney offered reasonable
justification for noncompliance; and (6) whether the
disobedience created significant problems of judicial
administration. Id at 818.
4. The Florida Constitution gIves the Florida Supreme
Court complete authority to promulgate or rescind
the Florida Rules of Civil Procedure. Specifically,
 Article V, Section 2(a) of the Florida Constitution
provides that "[t]he supreme court shall adopt rules
for the practice and procedure in all courts including
the time for seeking appellate review, the
administrative supervision of all courts, the transfer
to the court having jurisdiction of any proceeding
when the jurisdiction of another court has been
improvidently invoked, and a requirement that no
cause

shall be dismissed because an improper remedy has been

sought." See also Ser-Nestler, Inc. v.

General Finance Loan Co. of Miami Northwest, 167 So.2d

230 (3d DCA 1964) ("Supreme Court is vested with sole
authority to promulgate, rescind and modify the Florida
Rules of Civil Procedure, which remain inviolate until
changed by Supreme Court"), appeal dismissed 174 So.2d 35;
State v. Battle, 302 So.2d 782 (3d DCA1974) ("language
of the rules promulgated by the Supreme Court of Florida
are binding upon the trial and appellate courts"); State v.
Lvons, 293 So.2d 391 (2d DCA 1974) ("Supreme Court has
right to adopt a rule at variance from its own precedents").

14. On February 11,2010 by the Florida Supreme

Court amended Fla. R. Civ. Pro. LllO(b)

to read

[w]hen filing an action for foreclosure of a

mortgage on residential real property the
complaint shall be verified. When verification of a
document is required, the document shall
include an oath, affirmation, or the following
statement: Under penalty of perjury, I declare
that I have read the foregoing, and the facts
alleged therein are true and correct to the best
of my knowledge and belief. Emphasis added.

Therefore, mortgage foreclosure action filed after February

11, 2010 must be verified.

15. The Supreme Court noted that

 [t]he primary purposes of this amendment are:
(1) to provide incentive for the plaintiff to
appropriately investigate and verify its
ownership of the note or right to enforce the
note and ensure that the allegations in the
complaint are accurate;

(2) to conserve judicial resources that are

currently being wasted on inappropriately
pleaded "lost note" counts and inconsistent
allegations; (3) to prevent the wasting of
judicial resources and harm to defendants
resulting from suits brought by plaintiffs not
entitled to enforce the note; and (4) to give
trial courts greater authority to sanction
plaintiffs who make false allegations. In re:
Amendments to the Florida Rules of Civil
Procedure, No. SC09-1579, (Feb. 1], 2010).

16. Furthermore, Fla. Stat. §92.525 provides that

(1) When it is authorized or required by law, by rule of an administrative

agency, or by rule or order of court that a document be verified by a
person, the verification may be accomplished in the following manner:

(a) Under oath or affirmation taken or administered before

an officer authorized under s. 92.50 to administer oaths;
or

(b) By the signing of the \\-Titten declaration prescribed in

subsection (2).

(2) A written declaration means the following statement:

"Under penalties of perjury, I declare that I have read the
foregoing [document] and that the facts stated in it are
true," followed by the signature of the person making the
declaration, except when a verification on information or
belief is permitted by law, in which case the words "to the
best of my knowledge and belief" may be added. The
written declaration shall be printed or typed at the end of
or immediately below the document being verified and
above the signature of the person making the declaration.

See also Muss v. Lennar Florida Partners L L.P., 673 So. 2d 84 (Fla. 4th
 DCA 1996).

b. Argument

1. Here, the Plaintiff has failed to file a verified

complaint. The instant action is one for foreclosure of
residential real property which was filed on or about
April 20, 20 I 0 and therefore squarely comes within
the authority of the revised Florida Rule of Civil
Procedure. Nevertheless, the Plaintiff's Complaint
does not contain an oath, affirmation, or the
verification statement as required by Fla. R. Civ. Pro.
1.11O(b).
2. A dismissal with prejudice is warranted based upon
the six factors set forth by the Florida Supreme Court
in Kozel have expressly been met. Specifically:

1. The disobedience by the Plaintiff's counsel was

willful and deliberate;

11.While Plaintiff's counsel may not have

been expressly sanctioned for this act,
Plaintiff's counsel has been warned by
defense attorneys across the State,
including your undersigned counsel, that
their action was in violation of Rule

1. 110(b);

Ill. Upon information and belief, the Plaintiff itself

was involved in the disobedience as it, directly or
indirectly, manifested to its counsel to avoid
compliance with the Rule

IV.The disobedience unduly prejUdices the Defendants

through coercing them to spend time and resources on a
claim which may prove frivolous or one which is otherwise
not subject to adjudication;

v. The Plaintiff's counsel has not offered a reasonable

explanation as to its noncompliance; and

VI.The disobedience creates significant

problems to judicial administration as it
 forces the courts to also expand time and
resources on claims which may prove
frivolous or otherwise not subject to
adjudication.

19. The Plaintiff's complaint thus frustrates the purposes

given by the Florida Supreme Court for the amendment to
Rule 1.110(b) making dismissal with prejudice is warranted
under the circumstances.

WHEREFORE, because the Plaintiff has failed to file a verified

complaint and because the six factors set forth in Kozel have been
expressly met, the Defendants respectfully request that the Court dismiss
with prejudice the instant case and any other relief the Court deems just
and proper.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy

of the foregoing has been furnished by

l'\.F'J-J..

U.S. Mail on this 'Mclay of April, 2010 to MICHAEL GELETY,

Law Offices of Marshall C. Watson, P.A., 1800 N.W. 49th
Street, Suite 120, Fort Lauderdale, FL 33309.

MATTHEW

Ann RESEARCH APPEAL COURT OPINION - CASE LAW IN YOUR STATE

-------------------------------------------------------------
04/27/10 at Quote from http://www.jurisdictionary.com
01:08 AM Many of you are losing your cases because you are arguing the law
instead of citing written appellate court opinions that agree with
you, authorities that control your trial judge!
While your opinions are important to you, they don't count for
much in court.
The opinions that count in court (i.e., the ones that control your
trial judge) are the written opinions of appellate courts that can
reverse the decisions of your trial judge if the trial judge goes
against them.
Learn how to control your trial judge by researching and drafting
written memoranda that cite appellate opinions the judge cannot
ignore!
 Ann IN THE CIRCUIT COURT OF THE 16th JUDICIAL CIRCUIT IN AND
FOR MONROE COUNTY, FLORIDA
04/22/10 at
02:24 PM Plaintiff name
Plaintiff,
CASE NO.: XXXXXXXX
vs.

Defendant name

Defendants.
_______________________________________/

DEFENDANTS‘ MOTION FOR LEAVE TO FILE AMENDED ANSWER

COMES NOW the Defendants, Your name and your name

(Hereinafter referred to as ―Defendants‖) by and through the
undersigned counsel, and hereby respectfully requests this
Honorable court to grant leave, thereby permitting Defendants to
file the attached Amended Answer, and states as follows:
1. The Plaintiff has filed a lawsuit against the Defendants, for what
purports to be a foreclosure action.
2. Defendants filed pro se answers in the above-mentioned-
mentioned matter.
3. Defendants‘ counsel has just been retained in this matter and by
and through undersigned counsel, the Defendants requests leave to
amend their answer.
4. It is in the interest of justice to permit Defendants to amend
their Answer as it allows for the proper resolution of the dispute
between all the parties.
5. Attached to this Motion to Amend the Answer is Defendants‘
Amended Answer.
MEMORANDUM IN SUPPORT FOR THE MOTION TO AMEND ANSWER
AND COUNTERCLAIM

Rule 1.190, Fla. R. Civ. P., requires that ―leave of court [to amend
pleadings] shall be given freely when justice so requires,‖ and that
the court may permit a pleading to be amended ―at any time in
furtherance of justice.‖ Fla. R. Civ. P. 1.190(a), (e) (emphasis
added). Indeed, Florida‘s well reasoned public policy
overwhelmingly favors the liberal amendment of pleadings so that
cases may be decided on their merits. Craig v. East Pasco Med.
Ctr., Inc., 650 So. 2d 179 (Fla. 2d DCA 1995). All doubts must be
resolved in favor of allowing amendment of pleadings. Thompson v.
Publix Supermarkets, Inc., 615 So. 2d 796 (Fla. 1st DCA 1993).
The failure to permit amendment constitutes an abuse of discretion
unless it clearly appears that the amendment would prejudice the
opposing party, the privilege to amend has been abused, or
amendment would be futile. Carter v. Ferrell, 666 So. 2d 556 (Fla.
2d DCA 1995).

Leave to amend is especially appropriate when the amendment is

based on
the same conduct, transaction or occurrence as the original
pleading the movant seeks to amend. Dimick v. Ray, 774 So. 2d
830 (Fla. 4th DCA 2000) (holding that proposed addition of claims
not previously made would not prejudice defendants since the
proposed amendment was filed prior to trial); Florida East Coast
Railway Co. v. Ssanford Sshulman, 481 So. 2d 965 (Fla. 3d DCA
1986) (holding that trial court did not abuse its discretion in
permitting plaintiff to amend his complaint after he had rested his
case at trial); Passekoff v. Kaufman, 392 So. 2d 971 (Fla. 3d DCA
1981)(finding no indication that privilege to amend was being
abused, where the motion to amend was filed before case was set
for trial); Knipp v. Weinbaum, 351 So. 2d 1081 (Fla. 3d DCA
1977)(―liberal construction of [Rule 1.190(a)] is particularly
applicable in a situation … where the amendment is based on the
same conduct, transaction and occurrence upon which the plaintiff
had brought his original claim‖), citing Turner v. Trade Mor Inc.,
252 So. 2d 383 (Fla. 4th DCA 1971). Indeed, the true test for
determining whether the proposed amendments should be allowed
under Florida law is ―whether the pleading as amended is based on
the same specific conduct, transaction or occurrence between the
parties upon which the plaintiff tried to enforce his original claim.‖
David Miller Distributing Company, Inc. v. Florida National Bank at
Arlington, 342 So. 2nd 856 (Fla. 1st DCA 1977).
For instance, in Pasekoff, 392 So. 2d 971, the Third District
reversed
the trial court‘s denial of the plaintiff‘s motion to amend the third
amended complaint in an action to quiet title, where the proffered
amendment involved the same transactions as the plaintiff‘s earlier
pleadings, and the only amendment set forth an additional legal
theory. See id. at 976. The Third District stated, in relevant part:
Since all of the factual allegations had been revealed in earlier
discovery, the [defendants] could not have been, and, indeed make
no claim that they were surprised by the contents of the
amendment. Furthermore, when the motion was made, the case
had not yet been set for trial… Finally, there was no indication that
the ―privilege to amend‖ had been or was being abused.

Id. (emphasis added). Given that the conduct, transactions and

occurrences forming the basis of the original pleadings filed by the
Plaintiff is the same as the proposed amended pleadings, and the
case is not set for trial an amendment is proper.
 Plaintiff Will Not Be ―Prejudiced‖ by Defendants Filing of the
Proposed Amended Pleadings
Moreover, Florida courts will not find the existence of ―prejudice,‖
unless the amendment proposes new and different causes of action
either during trial or after the trial has been completed. Dimick v.
Ray, 774 So. 2d 830 (Fla. 4th DCA 2000). In Dimick, the court
examined the definition of ―prejudice‖ in light of a party‘s desire to
amend a pleading, and stated:

The cases have analyzed this prejudice element primarily in respect

to the defendant‘s ability to prepare for the new allegations prior to
trial on the merits. For instance, in [numerous Florida cases]
…amendments were not allowed which proposed to add new and
different causes of action either during trial or after the trial had
been completed. The prejudice in adding new causes of action or
claims in those cases was obvious since the defendants had already
fully prepared for, and in some instances, had actually completed
the trial when the plaintiff‘s sought to add different claims.

6. Plaintiff will not be prejudiced by the amendment of the

pleadings and said amendment is proper in the interest of justice.

WHEREFORE, the above-stated reasons the Defendants respectfully

requests this Honorable Court enter judgment and allow the
Defendants to serve the attached Answer upon the Plaintiff
therefore amending the Defendants‘ original Answer to reflect the
proper pleading and award such other additional relieve as the
Court deems just, necessary and proper.

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and complete copy of the foregoing
has been furnished via facsimile 305-296-1580 and U.S. Mail
to xxxx Esq., Post Office Box 370, Key West, Florida 33041 this
____day of February 2005.

___________________

Ann MOTION TO DISMISS - FLORIDA - IF THE FORECLOSURE LAWSUIT IS FILED AFTER

FEBRURARY - DATE OF THE SUPREME COURT OPINION
04/12/10 at ---------------------------------------------------------------------------------------------
06:31 PM Thank you Mr. J. Ort Esq. 407-228-9770 Orlando

Here is the text of an additional argument that you can add to your MTD. I’ve
raised it a few times now, and no mill has responded to it yet:
 Defendant, ________, (“_________”) by and through undersigned

counsel, and pursuant to Rule 1.140, Florida Rules of Civil Procedure, file

this Motion to Dismiss Plaintiff‟s Complaint, and in support state:

1. On February 11, 2010, the Florida Supreme Court released SC09-

1460 In re: Amendments to the Florida Rules of Civil Procedure.

2. The opinion amends Rule 1.110(b) to require verification of

mortgage foreclosure complaints involving residential real

property. The Court cited this basis:

The primary purposes of this amendment are (1) to provide

incentive for the plaintiff to appropriately investigate and
verify its ownership of the note or right to enforce the note
and ensure that the allegations in the complaint are
accurate; (2) to conserve judicial resources that are
currently being wasted on inappropriately pleaded ―lost
note counts and inconsistent allegations; (3) to prevent the
wasting of judicial resources and harm to defendants
resulting from suits brought by plaintiffs not entitled to
enforce the note; and (4) to give trial courts greater
authority to sanction plaintiffs who make false allegations.

3. The Order requires the document filed to include an oath,

affirmation or the following statement ―Under penalty of perjury, I

declare that I have read the foregoing, and the facts alleged therein

are true and correct to the best of my knowledge and belief.‖

4. The Order states ―[t]he amendments shall become effective

immediately upon the release of this opinion.‖

5. The Florida Supreme Court Manual for Internal Operating

Procedures defines when an opinion is released. It provides:

Section V. Release of Opinions.

A. Routine Release. Copies of opinions ready for release to
the public are delivered to each justice no later than Friday
at noon. At any time before 10:00 a.m., ET, the following
Thursday, any justice may direct the clerk not to release an
opinion. Unless otherwise directed, on Thursday morning at
11:00 a.m., ET, the clerk electronically releases the
opinions that were furnished to the justices the preceding
Friday. Publishers other than the Court's official reporter
may receive copies at the rate of fifty cents per page, and all
other interested persons may receive copies at the cost of
one dollar per page. Opinions are posted on the Decisions
and Rules Page of the Court's website located at
http://www.floridasupremecourt.org/decisions/opinions.sht
ml by noon on the day they are released.
Fla. S. Ct. IOP Manual § II

6. The subject opinion was posted on the Court‘s website, and

released on February 11, 2010. (See attached Exhibit ―A‖).

7. The instant lawsuit was filed after February 18, 2010.

8. Plaintiff did not verify its pleading. Accordingly, Plaintiff‘s

complaint should be dismissed for failure to comply with Rule

1.110(b).

WHEREFORE, _________ respectfully request Plaintiffs' Complaint

be dismissed with prejudice and for such other relief as this Court deems

just and proper.

F. 407-264-6288
 ortlawfirm.com

Shawn I noticed the document request Tamara Price employment history

Alexander for the past 3 years. Can you provide me more information about if
Ms. Price held her self out to be the V.P of Argent or another Bank?
04/06/10 at Do you have any information on a Manual Rivas signing on behalf
08:33 AM of DB as authorized agent? If so,...can you send me a copy of the
signature you have for him? My email address is
invstigators@yahoo.com. Has DB answered discovery or are they
giving you the run around?

Ann INTERROGATORIES SAMPLE

--------------------------
03/21/10 at SUPERIOR COURT OF NEW JERSEY
01:03 PM CHANCERY DIVISION – ESSEX VICINAGE
------------------------------------------------------------------
X Civil Action
Deutsche Bank National Trust Company, As Trustee Of
Argent Securities, Inc. Asset Backed Pass Through
Certificates, Series 2004-PW1
Docket Number: XXX

REQUEST FOR

INTERROGATORIES
Plaintiff(s),
vs.

XXX; John Doe,

Husband Of
XXX XXX
Avenue

Rosedale, NY 11422
Defendant(s)/Pro Se
------------------------------------------------------------------X
REQUEST FOR DISCOVERY: INTERROGATORIES
i). Defendant, XXX, serves these interrogatories on Deutsche Bank
National Trust Company, as authorized by Case Management Order
dated September 30, 2009, and by the Federal Rule of Civil
Procedure 33. Deutsche Bank National Trust Company must serve
an answer to each interrogatory separately and fully, in writing and
under oath within 30 days after service to: XXX, XXX Ave.,
Rosedale, NY 11422.
 INSTRUCTIONS
ii). These requests for interrogatories are directed toward all
information known or available to Deutsche Bank National Trust
Company - not its lawyer, Ralph F. Casale, Esq. - including
information contained in the records and documents in Deutsche
Bank National Trust Company‘s custody or control or available to
Deutsche Bank National Trust Company upon reasonable inquiry.
iii). Each request for interrogatory is to be deemed a continuing
one. If, after serving an answer, you obtain or become aware of
any further information pertaining to that request, you are
requested to serve a supplemental answer setting forth such
information.
iv). As to every request for interrogatory which an authorized
officer of Deutsche Bank National Trust Company fails to answer in
whole or in part, the subject matter of that request will be deemed
confessed and stipulated as fact to the Court.
v). Kindly attach additional sheets as required identifying the
Interrogatory being answered. You have a continuing obligation to
update the information in these Interrogatories as you acquire new
information. If no such update is provided in a reasonable period of
time that you acquired such information, it may be excluded at trial
or hearing.

DEFINITIONS
vi). ―You‖ and ―your‖ include Deutsche Bank National Trust
Company and any and all persons acting for or in concert with
Deutsche Bank National Trust Company.
vii). ―Document‖ is synonymous in meaning and equal in scope to
the usage of this term in Federal Rule of Civil Procedure 34(a) and
includes computer records in any format. A draft or non-identical
copy is a separate document within the meaning of this term. The
term ―document‖ also includes any ―tangible things‖ as that term is
used in Rule 34(a).
viii). Parties. The term ―plaintiff‖ or ―defendant‖, as well as a
party‘s full or abbreviated name or a pronoun referring to a party,
means the party and, where applicable, (his/her/its) agents,
representatives, officers, directors, employees, partners, corporate
parent, subsidiaries, or affiliates.
ix). Identify (person). When referring to a person, ―identify‖ means
to give, to the extent known, the person‘s full name, present or last
known address, telephone number, and when referring to a natural
person, the present or last known place of employment. Once a
person has been identified in compliance with this paragraph, only
the name of that person needs to be listed in response to later
discovery requesting the identification of that person.
x). Identify (document). When referring to a document, ―identify‖
means to give, to the extent known, the following information: (a)
the type of document; (b) the general subject matter of the
document; (c) the date of the document; (d) the authors, address,
 and recipients of the document; (e) the location of the document;
(f) the identity of the person who has custody of the document;
and (g) whether the document has been destroyed, and if so, (i)
the date of its destruction, (ii) the reason for its destruction, and
(iii) the identity of the person who destroyed it.
xi). Relating. The term ―relating‖ means concerning, referring,
describing, evidencing, or constituting, directly or indirectly.
xii). Any. The term ―any‖ should be understood in either its most or
its least inclusive sense as necessary to bring within the scope of
the discovery request all reasons that might otherwise be construed
to be outside of its scope.

REQUEST FOR INTERROGATORIES

1. Please identify each person who answer these interrogatories
and each person (attach pages if necessary) who assisted,
including attorneys, accountants, employees of third party entities,
or any other person consulted, however briefly, on the content of
any answer to these interrogatories.
ANSWER:

2. For each of the above persons please state whether they have
personal knowledge regarding the subject loan transaction.
ANSWER:
3. Please state the date of the first contact between Deutsche Bank
National Trust Company and the borrower in the subject loan
transaction, the name, address and telephone number of the
person(s) in your company who was/were involved in that contact.
ANSWER:

4. Please identify every potential party to this lawsuit.

ANSWER:

5. Please identify the person(s) involved in the underwriting of the

subject loan. "Underwriting" refers to any person who made
representations, evaluations or appraisals of value of the home,
value of the security instruments, and ability of the borrower to
pay.
ANSWER:

6. Please identify any person(s) who had any contact with any third
party regarding the securitization, sale, transfer, assignment,
hypothecation or any document or agreement, oral, written or
otherwise, that would effect the funding, closing, or the receipt of
money from a third party in a transaction that referred to the
subject loan.
ANSWER:

7. Please identify any person(s) known or believed by anyone at

Deutsche Bank National Trust Company who had received physical
 possession of the note and allonges, the mortgage, or any
document (including but not limited to assignment, endorsement,
allonges, Pooling and Servicing Agreement, Assignment and
Assumption Agreement, Trust Agreement, letters or email or faxes
of transmittals including attachments) that refers to or
incorporates terms regarding the securitization, sale, transfer,
assignment, hypothecation or any document or agreement, oral,
written or otherwise, that would effect the funding, or the receipt of
money from a third party in a transaction, and whether such money
was allocated to principal, interest or other obligation related to the
subject loan.
ANSWER:

8. Please identify all persons known or believed by anyone in

Deutsche Bank National Trust Company or any affiliate to have
participated in the securitization of the subject loan including but
not limited to mortgage aggregators, mortgage brokers, financial
institutions, Structured Investment Vehicles, Special Purpose
Vehicles, Trustees, Managers of derivative securities, managers of
the company that issued an Asset-backed security, Underwriters,
Rating Agency, Credit Enhancement Provider.
ANSWER:

9. Please identify the person(s) or entities that are entitled, directly

or indirectly to the stream of revenue from the borrower in the
subject loan.
ANSWER:

10 Please identify the person(s) in custody of any document that

identifies the loan servicer(s) in the subject loan transaction.
ANSWER:

11. Please identify any person(s) in custody of any document which

refers to any instruction or authority to enforce the note or
mortgage in the subject loan transaction.
ANSWER:

12. Other than people identified above, identify any and all persons
who have or had personal knowledge of the subject loan
transaction, underwriting of the subject loan transaction,
securitization, sale, transfer, assignment or hypothecation of the
subject loan transaction, or the decision to enforce the note or
mortgage in the subject loan transaction.
ANSWER:

13. Please state address, phone number, and employment history

for the past 3 years of Tamara Price, Vice President, Argent
Mortgage Company, LLC, ―designated as the Assignor‖ of the
mortgage loan to Deutsche Bank National Trust Company
(Assignment of Mortgage recorded in Essex County Register‘s Office
on June 25, 2008).
ANSWER:

14. Please state the date on which Argent Mortgage Company, LLC
(originator) sold the mortgage loan to Ameriquest Mortgage
Company (Seller and Master Servicer).
ANSWER:

15. Please state the date on which Ameriquest Mortgage Company

(Seller and Master Servicer) sold the mortgage loan to Argent
Securities, Inc. (Depositor).
ANSWER:

16. Did Argent Mortgage Company, LLC (originator) or previous

servicers of this account receive any compensation, fee,
commission, payment, rebate or other financial considerations from
Ameriquest Mortgage Company (Seller and Master Servicer) or any
affiliate or from the trust funds, for handling, processing,
originating or administering this loan?
ANSWER:

17. If yes, please describe and itemize each and every form of
compensation, fee, commission, payment, rebate or other financial
consideration paid to Argent Mortgage Company, LLC, the
originator or previous servicers of this account by Ameriquest or
any affiliate, or from the trust fund.
ANSWER:

18. Please identify any party, person or entity known or suspected

by Deutsche Bank National Trust Company or any of your officers,
employees, independent contractors or other agents, or servants of
your company who might possess or claim rights under the subject
loan or mortgage and/or note.
ANSWER:

19. Please identify the custodian of the records that would show all
entries regarding the flow of funds for the subject loan transaction
prior to and after closing of the loan. (Flow of funds, means any
record of money received, any record of money paid out and any
bookkeeping or accounting entry, general ledger and accounting
treatment of the subject loan transaction at your company or any
affiliate including but not limited to whether the subject loan
transaction was ever entered into any category on the balance
sheet at any time or times, whether any reserve for default was
ever entered on the balance sheet, and whether any entry, report
or calculation was made regarding the effect of this loan transaction
on the capital reserve requirements of your company or any
affiliate.)
 ANSWER:

20. Please identify the auditor and/or accountant of your financial

statements or tax returns.
ANSWER:

21. Please identify any attorney with whom you consulted or who
rendered an opinion regarding the subject loan transaction or any
pattern of securitization that may have effected the subject loan
transaction directly or indirectly.
ANSWER:

22. Please identify any person who served as an officer or director

with Deutsche Bank National Company or Argent Mortgage
Company LLC commencing with 6 months prior to closing of the
subject loan transaction through the present. (This interrogatory is
limited only to those people who had knowledge, responsibility, or
otherwise made or received reports regarding information that
included the subject loan transaction, and/or the process by which
solicitation, underwriting and closing of residential mortgage loans,
or the securitization, sale, transfer or assignment or hypothecation
of residential mortgage loans to third parties.)
ANSWER:

23. Did any investor/certificate holder approve or authorize

foreclosure proceedings on XXX‘s property?
ANSWER:

24. Please identify the person(s) involved or having knowledge of

any insurance policy or product, plan or instrument describing over-
collateralization, cross-collateralization or guarantee or other
instrument hedging the risk of default as to any person or entity
acting as an issuer of any securities or certificates. (Such
instrument(s) relate to the composition of a pool, tranche or other
aggregation of assets that was created, included or referred to the
subject loan and the pool or aggregation was transmitted,
transferred, assigned, pledged or hypothecated to any entity or
buyer. A person who ―transmitted, transferred, assigned, pledged
or hypothecated‖ refers to any person who suggested, approved,
received or accepted the composition of the pool or aggregation
made or confirmed representations, evaluations or appraisals of
value of the home, value of the security instruments, ability of the
borrower to pay.)
ANSWER:

25. Please identify the person(s) involved or having knowledge of

any credit default swap or other instrument hedging the risk of
default as to any person or entity acting as an issuer of any
securities or certificates. (Such instrument(s) relate to the
 composition of a pool, tranche or other aggregation of assets that
was created, included or referred to the subject loan.)
ANSWER:

Submitted by: XXX

XXX Ave
Rosedale, NY 11422

CERTIFICATE OF SERVICE
I, I, XXX certify that on this 29th day of the month of October,
2009.
1. A true copy of the 10-page Request for Interrogatories was
served on The New Superior Court of New Jersey, Chancery
Division – Essex Vincinage, at 212 Wasington Street, Eighth Floor,
Newark, New Jersey.
2. A copy of the foregoing was mailed on , 2009 to

Dated: Queens New York

This _________ day of ___________ 2009 XXX
XXX Ave
Rosedale,
NY 11422

Ann REQUEST FOR PRODUCTION

——————————————
03/11/10 at
04:53 PM SUPERIOR COURT OF NEW JERSEY
CANCERY DIVISION – ESSEX VICINAGE
————————————————�� �—————X Civil Action
 Deutsche Bank National Trust Company# as Trustee of
Argent Securities, Inc. Asset Backed Pass Through
Certificates, Series 2004-PW1 Docket Number: XXX

REQUEST FOR
Plaintiff(s), PRODUCTION OF
DOCUMENTS
vs.

XXX; JOHN DOE,

HUSBAND OF XXX,
XXX Ave
Rosedale, NY 11422
Defendant(s) Pro-Se
————————————————�� �—————X

REQUEST FOR DISCOVERY: PRODUCTION OF DOCUMENTS

XXX serves this Request for Production of Documents on Deutsche

Bank National Trust Company, per Case Management Order dated
September 30, 2009, and as authorized by Federal Rule of Civil
Procedure 34. As required by this Order and Rule 34(b), Deutsche
Bank National Trust Company must produce all requested
documents for inspection and copying either as they are kept in the
ordinary course of business or segregated according to each
request. The documents must be produced within 30 days of
service of this request at: XXX, XXX Ave, Rosedale, NY 11422.

INSTRUCTIONS
i). These requests for production of documents are directed toward
all information known or available to Deutsche Bank National Trust
Company – not its lawyers with no firsthand knowledge of the
records in this instant case – including information contained in the
records and documents in Deutsche Bank National Trust Company‘s
custody, control or available to Deutsche Bank National Trust
Company upon reasonable inquiry. Where requests for documents
cannot be answered in full, they shall be answered as completely as
possible. No answer or an incomplete answer shall be accompanied
by a specification of the reasons for the lack of answer and the
incompleteness of the answer and of whatever actual knowledge is
possessed with respect to each unanswered or incompletely
answered Request for Documents. Please state the name(s) of the
senior officer(s) having firsthand knowledge of the facts herein and
their title answering this request.

ii). Each Request for Documents is to be deemed a continuing one.

If, after serving an answer to any Request for Documents, you
obtain or become aware of any further information pertaining to
 that Request for Documents, you are requested to serve a
supplemental answer setting forth such information.

iii). As to every Request for Documents which you fail to answer in

whole or in part, the subject matter of that document request will
be deemed confessed and stipulated as fact to the Court.

iv). For each document or other requested information that

Deutsche Bank National Trust Company asserts is privileged or is
not discoverable, identify that document or other requested
information. State the specific grounds for the claim of privilege or
other grounds for exclusion.

v). For each document that Deutsche Bank National Bank Trust
Company claims is not discoverable, state (1) the information
required by the definition of ―document‖ below, (2) the author‘s job
title and address, (3) the recipient‘s job title and address, (4) the
name and job title of all persons to whom it was circulated or who
saw it, (5) the name, job title, and address of the person now in
possession of the document, and (6) the document‘s present
location.

vi). For a document that no longer exists or cannot be located,

identify the document, state how and when it passed out of
existence or when it could no longer be located, and state the
reasons for the disappearance. Also, identify each person having
knowledge about the disposition or loss of the document, and
identify any other document evidencing the lost document‘s
existence or any facts about the lost document.

vii). As to every Request for production which you fail to answer in

whole or in part, the subject matter of that production will be
deemed confessed and stipulated as fact to the Court.

viii). Answer each request for production separately by listing the

documents and by describing them as defined below. If documents
are numbered for production, in each response, provide both the
information that identifies the document and the document‘s
number.

DEFINITIONS

The following terms have the following meanings, unless the

context requires otherwise:

ix). Parties. The term ―plaintiff‖ or ―defendant,‖ as well as a party‘s

full or abbreviated name or a pronoun referring to a party, means
the party and, where applicable, {his/her/its} agents,
representatives, officers, directors, employees, partners, corporate
 parent, subsidiaries, or affiliates. This definition is not intended to
impose a discovery obligation on any person who is not a party to
the litigation.
x). Person. The term ―person‖ means any natural person, any
business, a legal or governmental entity, or an association.
xi). Document. The term ―document‖ is synonymous in meaning
and equal in scope to the usage of this term in Federal Rule of Civil
Procedure 34(a) and includes computer records in any format. A
draft or non-identical copy is a separate document within the
meaning of this term. The term ―document‖ also includes ―any
tangible things‖ as that term is used in Rule 34(a).
xii). Communication. The term ―communication‖ means the
transmittal of information in the form of facts, ideas, inquiries, or
otherwise.
xiii). Identify (person). When referring to a person, ―identify‖
means to give to the extent known the person‘s full name, present
or last known address, telephone number, and, when referring to a
natural person, the present or last known place of employment.
Once a person has been identified in compliance with this
paragraph, only the name of that person needs to be listed in
response to later discovery requesting the identification of that
person.
xiv). Identify (document). When referring to a document, ―identify‖
means to give, to the extent known, the following information: (1)
the type of document; (2) the general subject matter of the
document; (3) the date of the document; (4) the authors,
addressees, and recipients of the document; (5) the location of the
document; (6) the identity of the person or entity who has custody
of the document; and (7) whether the document has been
destroyed, and, if so, the (a) date of its destruction, (b) reason for
its destruction, and (c) identity of the person who destroyed it.
xv). Relating. The term ―relating‖ means concerning, referring,
describing, evidencing, or constituting, directly or indirectly.
xvi). Any. The term ―any‖ should be understood in either its most
or its least inclusive sense as necessary to bring within the scope of
the discovery request all responses that might otherwise be
construed to be outside of its scope.
xvii). And/Or. The connectives ―and‖ and ―or‖ should be construed
either disjunctively or conjunctively as necessary to bring within the
scope of the discovery request all responses that might otherwise
be construed to be outside of its scope.
xviii). Number. The use of the singular form of any word includes
the plural and vice versa.
xiv). Deutsche Bank National Trust Company includes any and all
persons, all past and current employees and agents acting, for in
concert or behalf of Deutsche Bank National Trust Company each of
your directors, employees, fiduciaries, representatives and agents,
of this allege plaintiff, and any individual over which this allege
plaintiff, exercises the power to control and direct as well as
 everyone acting for or on behalf of Deutsche Bank National Trust
Company having firsthand knowledge.

xx). ―Documents‖ or ―documents‖ means writings of every kind and

character pertaining to the designated subject matter, including,
without limitation and not limited to, the original and a certified
copy, regardless of origin or location, of any regulation, court
decision, book, pamphlet, periodical, letter, memorandum, file,
note, diary, calendar, newspaper, magazine, statement, bill,
invoice, order, policy, telegram, correspondence, summary, receipt,
opinion, investigation statement or report, schedule, manual,
financial statement, audit, tax return, articles of incorporation,
bylaws, stock book, minute book, agreement, contract, deed,
security agreement, mortgage, deed of trust, title or other
insurance policy, report record, study, Note which indicates or
constitutes evidence of debt, monetary instrument, contract for
services or transfer of money between Plaintiff and any other
person (natural or artificial), hand written note, map, drawing,
working paper, chart, paper, draft, index, tape microfilm, e-mail,
data sheet, data processing card, computer printout, computer
program, check, bank statement, passbook or other written, typed,
printed, photocopied, dittoed, mimeographed, recorded,
transcribed, punched, taped, filmed, photographic or graphic
matter, however produced, to which you have or have not had
access.

xxi). The term ―equity in the original note‖ refers to the fact that
not only does Deutsche Bank National Trust Company have physical
possession of the original promissory note and custody like a
fiduciary, but must have also vested financial interest in such: it
legally belongs to Deutsche Bank National Trust Company.

DOCUMENTS REQUESTED
1) Please identify the true owner of this obligation pursuant to 15
U.S.C. § 1641(f)(2) and describe your relationship to this entity.
RESPONSE:

2) Produce copies of complaints or petitions in any action filed by or

against Deutsche Bank National Trust Company in which allegations
are similar to those of this suit.
RESPONSE:

3) Produce settlement agreements that Deutsche Bank National

Trust Company has entered into with any party or non-party as a
result of or relating to this instant case.
RESPONSE:

4) For each payment received, produce a complete payment

history, including but not limited to the dates and amounts of all
 the payments that have been made on the alleged loan to date,
how the payment was applied or credited (indicating the portion, if
any, applied or credited to principal, interest, escrow or suspense,
and any Servicer), the month to which the payment was applied
and if interest and principle is calculated using an daily actuarial
accounting method;
RESPONSE:

5) Produce a certified copy of all Truth in Lending material

disclosures provided at any purported closing and all written notices
that informed Defendant of all effective dates concerning the
transfer of the Note and Security Instrument pursuant to 12 USC §
2605(c);
RESPONSE:

6) Produce a certified copy of all letters, statements, documents,

and material disclosures sent to Defendant by Servicers, Sub-
Servicers or others in your file or in your control or possession or in
the control or possession of any affiliate, parent company, agent,
Sub-Servicers, Servicers, attorney or other representative of your
company;
RESPONSE:

7) Produce all accounting ledger cards, journal entries and/or

bookkeeping entries regarding the crediting of any and all
Promissory Notes, money equivalents, or similar instruments,
identified as or evidencing assets provided by and/or signed by the
borrowers and consumers relating to this Account.
RESPONSE:

Produce a copy of all account receivables or payable, (including

the amount, payment date, purpose, length of insurance term, and
recipient of all expenses including appraisal fees, property
inspection/preservation fees, force-placed insurance charges, title
insurance, hazard insurance, legal fees, recoverable corporate
advances) relating to this Account that Argent Mortgage Company,
LLC, Argent Securities, Inc., Deutsche Bank National Trust
Company and any other bank, depository or financial institution
and/or mortgage servicers recorded in its accounting ledger card
and bookkeeping journal entries since the origination of this loan;
RESPONSE:

9) Produce the particulars of this Account setting forth each item

recorded on the account since origination to include any and all
Promissory Notes, money equivalents, or similar instruments,
identified as or evidencing assets provided by and/or signed by the
borrower and consumers on which Deutsche Bank National Trust
Company or any other entity based an amount alleged due and
owing, and the date that each item was delivered to the Plaintiff;
 RESPONSE:

10) Produce an identification of the source of the funds used to

fund the loan since its origination, including account name(s),
number(s), and amount(s), including identification of the source of
the funds Deutsche Bank National Trust Company used to purchase
any and all Promissory Notes, money equivalents, or similar
instruments, identified as or evidencing assets provided by and/or
signed by the borrowers and consumers, and claims shall be due
and owing, and the date the purchase was completed by Deutsche
Bank National Trust Company or any subsequent Servicer;
RESPONSE:

11) Produce certified copies, front and back, of all checks or wire
transfer confirmation obtained or issued by Argent Mortgage
Company, LLC and used to fund and purchase this obligation,
including all copies of checks or wire transfers paid as third-party
fees at the closing by Argent Mortgage, LLC;
RESPONSE:

Further, you are hereby requested to produce the following

documents and information as related to public disclosure of
securities under SEC rules and servicing of this obligation – SEC File
No.: 333-112237-01:

12) A certified copy of all recourse agreements (including, the

Master Pooling and Servicing Agreements, the Mortgage Loan
Purchase Agreement, the Trust Agreement, Servicer Agreement,
Assignment and Assumption Agreement, SEC Forms 424(b)(5), 8K,
10K, 10D, REMIC, NIMS Insurer) between the Servicers, Argent
Securities, Inc., Argent Mortgage Company, LLC, Ameriquest
Mortgage Company, Deutsche Bank National Trust Company and
the SPV, and any other entity who claims ownership in this
obligation whereby the original promissory note agreement and
collateral instruments were pooled and securitized into a mortgage-
backed security in the structured finance transaction;
RESPONSE:

13) Pursuant 17 CFR 240.12g5-1 provide the name of the ―record

holders‖ and/or the name of ―each person who is identified as the
owner of such securities on records of security holders maintained
by or on behalf of the issuer.‖
RESPONSE:

14) A certified copy of the Registration Statement as that term is

defined under 15 USC § 77b(a)(8), i.e.; Form 8-A (short form) and
Form 10 (long form) Registration Statements under the 1934 Act,
Form S-1 and S-3 Registration Statement under the 1933 Act;
 RESPONSE:

15) Any request for exemption or No-action letters from SEC with
respect to their securities and all ACTS and certified copies of the
application filed with the SEC for exempt status and the order
issued by the SEC granting exempt relief from the appropriate
provisions;
RESPONSE:

16) If no registration statement pursuant to the 1933 Act is

available or otherwise required, please provide a comprehensive
description that meets the ―General Statement‖ of Regulation S and
satisfies the conditions applied to the ―Safe Harbor‖ rule.
RESPONSE:

17) The Tax Equity and Fiscal Responsibility Act of 1982 (―TEFRA‖)
Pub. L. 97-248, 96 Stat. 324, a bearer debt security generally must
be issued under arrangements reasonably designed to ensure that
such obligation will be sold only to a person who is not a United
States person and must satisfy certain other conditions identified in
the Tax Code § 163(f)(2)(B), and as such please provide:
a) The Identify of all parties with ownership interest who have met
the criteria as adopted by Treasury Regulation § 1.163-5(c)(i)(D)
―TEFRA D‖ and § 1.163-5(c)(i)(C) ―TEFRA C‖
RESPONSE:

b) Certified copies of all statements on a U.S. Form W-8 or

substitute thereto certifying the owner‘s non-U.S. status where the
obligations issued in registered form are not subject to the TEFRA
rules and considered ―portfolio interest.‖
RESPONSE:

c) All information statements and returns filed with the IRS which
identifies the name and address of all recipients of interest and
original issue discount that meets the provisions of a U.S. obligor
making payments to a foreign person under the Tax Code §§
871(a)(1), 881(a), 1441(a), 1442(a) and § 6049
RESPONSE:

18) A description whether the Special Purpose Vehicle or the

originator is the ―issuer‖ as that term is defined under 15 USC §
80a-2(a)(22) for registration purposes under the Investment
Company Act of 1940;
RESPONSE:

19) A description whether the pool or securities issued were

required to register under the statutory or statistical definition of
the 1940 Act? i.e., pursuant 17 CFR 270.3a-7 and if exempt,
describe the characteristics that define the exception and avoids all
 requirements;
RESPONSE:

20) The allonge, front and back, affixed to my original promissory

note with indorsements (including the dates endorsed) relating to
and/or associated with this transaction, as outlined in the SEC
Prospectus [Rule 424(b)(5)], Account No.: 0000882377-04-001138
filed on June 1, 2004 as follows: Argent Mortgage Company, LLC
(Originator) sold the mortgage loan to Ameriquest Mortgage
Company (Seller & Master Servicer) who then sold the mortgage
loan to Argent Securities, Inc. (Depositor).
RESPONSE:

Please be aware that the information contained in or filed with a

Registration Statement as that term is defined under 15 USC §
77b(a)(8) shall be made available to the public under 15 U.S.C. §
77f(d) including any amendment thereto and any report,
document, or memorandum filed as part of such statement or
incorporated therein by reference.

Nothing in the above requested documentation is proprietary under

SEC rules, and is needed to determine accurate assignee liability
and any pecuniary interest of Servicers and/or Trustees. Failure to
provide the requested information confirms willful deceit on the
part of Deutsche Bank National Trust Company, has legal
implications and application under 17 CFR § 240.10b-5; (Rule 10b-
5), of the 1934 Act, and applies to everyone, including any
reference to Internal Revenue Code for evasion or money-
laundering.

Prepared and Submitted by: XXX

XXX Avenue
Rosedale, NY 11422

CERTIFICATE OF SERVICE

I, XXX certify that on this 29th day of the month of October, 2009.
1. A true copy of the 12-page Request for Production Of Documents
was served on The New Superior Court of New Jersey, Chancery
Division – Essex Vincinage, at 212 Wasington Street, Eighth Floor,
Newark, New Jersey.

2. A copy of the foregoing was mailed on October 28 2009 to Ralph

F. Casale, Esq., 290 Route 46 West, Denville, New Jersey 07834 by
Express Mail No. XXX.

Dated: Queens New York

This _________ day of ___________ 2009 XXX
XXX Ave
 Rosedale, NY 11422

Ann IN THE CIRCUIT COURT OF THE 0000 JUDICIAL CIRCUIT IN

AND YYYY COUNTY, FLORIDA
03/09/10 at A CIVIL ACTION
11:41 AM CASE NO.:
LASALLE BANK NATIONALASSOCIATION,AS TRUSTEE FOR
CERTIFICATEHOLDERS OF BEAR STEARNS ASSET BACKED
SECURITIES I LLC, ASSET-BACKED CERTIFICATES, SERIES 2006-
HE9,
Plain~
vs,
XXXX; et at
Defendants).

DEFENDANT XXXXS' EMERGENCY MOTION TO STOP FORECLOSURE

SALE. TO VACATE F'0RECLOSURE COMPLAINT FOR FRAUD ON THE
COlJRT AND MOTION TO STRIKE FINAL.JUDGMENT OF
FORECLOSURE AND ORDER SETTING
FORECLOSURE SALE AND MEMORANDUM OF LAW

COMES NOW, the Defendant XXXX, by and through his undersigned

counsel
and :files this Motion and Memorandum of Law in the above-styled
action and as grounds therefore ; requests the Court to Dismiss
this action with prejudice pursuant to Rules 1.100(b).
1.14O(bX1X6) and (hX2) and 1.210(a) and J.54O(b) of the Florida
Rules of Civil Procedure, and states:
The Plaintiff filed their complaint on March 13, 2009, at the time
the Plaintiff filed their complaint they did not have standing and
made material misrepresentation in their
pleadings.
2. Further the Plaintiff is a Trustee and does not and cannot own
the mortgage as they are
Acting on behalf of the investment trust in this ease.
Several layers of fraud on the Court occurred in this instance and
justice requires that the Court set the Order setting sale dale aside
immediately and vacate the Final Judgment of
Foreclosure dated December 12, 2001 which has listed a sale date
of January 23~ 2009.
In addition to not having standing. the plaintiff falsely alleged that
―the original promissory note was lost or destroyed subsequent to
plaintiff's acquisition thereof' and that "plaintiff was in possession of
the promissory note and was entitled to enforce it when loss of
possession occurred" when in actuality they did not have an
interest in the paper at the time of bringing this lawsuit and a
purported assignment occurred after the lawsuit was filed.
 The March .17. 2008 assignment of Mortgage (See Exhibit" A ―
from Mortgage Electronic Registration Systems, Incorporated as
Nominee for Encore Credit Corporation d/b/a EC-C Credit
Corporation of Florida (MERS) to Plaintiff Lasalle Bank National
Association. as Trustee for Certificate holders of Bear Stearns Asset
Backed Securities I LLC, Asset Backed Certificates. Series 2006-
HE9 ("LBNA j clearly states that the assignment of the mortgage
and the promissory note that are the subject of this foreclosure
action were later filed after LBNA only as trustee filed a Notices of
Lis pendens on March 13,2008 in the Circuit Court of the Fifth
Judicial District Court in and for Hernando County, Florida (See
Exhibit B‗ . LBNA in its suit also does not indicate how it had any
right or legal ability to initiate such an action and simultaneously
claimed that "they had also lost or destroyed die Mortgage Note"
which they did not own---in fact LBNA as nominal trustee for
mortgage-backed securities has filed many foreclosure actions
throughout the United States under false, deceptive and misleading
representation without any legal standing to sue any party and its
interest in the debt. These patterns represent a pattern of corrupt
and illegal activity.
6.. Further, the Assignment itself is objectionable and gives rise to
several issues of possible misrepresentation and fraud (See Exhibit
"A OS).
Liquenda Allotey has executed the assignment as Vice President
ofMERS but he is not listed as an officer or director of MERS. (See
oomposite Exht"bit "C"),
Liqoenda Allotey has also executed Assignments as Vice President
of other banks in the recent past (See Composite Exhibit "D"), Most
peculiar, Allotey was Vice President of Washington Mutual in 2006,
Vice President of MERS for this case and again on April 30, 2007,
and Vice President of Washington Mutual again on May 17,2007.
AUotey, in fact appears to works for FIS-LPS a mortgage Collection
agency as evidenced by his Linkedl profile, and the Summit
magazine (page 18)(See Composite Exhibit "E").
Additionally, as to the March 17.2008 assignment. it purportedly
assigns the mortgage and the Promissory ' note from MERS in its
corporate capacity as nominee (agent) directly to LBNA and not to
the trust for which plaintiff acts as trustee.
II. LBNA's pattern and practice of seeking and obtaining
foreclosure judgments without a duly recorded assignment, without
the evidence of a chain of assignment at time of filing suit
constitutes a "false, deceptive, or misleading representation or
means" in connection
with 1he collection of debt, in violation of the Federal Fair Debt
Collection Practices Ac~ 15 U.S.C. 1692e and that bas occurred in
this case as well.
The plaintiff also fails to attach a copy of the promissory note to its
complaint.
From the plaintiff‘s own filings in this foreclosure action, it is
 established that a person other than the plaintiff LBNA was in filet
the true owner of the claim at the time LBNA actually sued upon.
and that the plaintiff is not and never was the real party in
interest, and is not and C3ID1ot be shown to be the proper
authorized party to bring this foreclosure action. In re: Shelter
Development Group. Inc.. 50 B.R. 588 (Bankr S.D Fla. 19!1.,S)
The Plaintiff did not own or hold the subject promissory note at
the time the Plaintiff LBNA filed this foreclosure action on March
13, 2008, and the plaintiff was fully aware of this Jack of
ownership, and its lack of standing at the time of the
commencement of this action. As stated Plaintiff LBNA and others
like it have done this repeatedly, and even federal 00UIts are
striking their predatory tactics for this very same reason as they
never bad ownership and do not have the notes where they just
claim they lost them.
The plaintiff LBNA further has failed to establish in any of its papers
or filings that it owned or held the mortgage or the promissory note
at the commencement of this action. In fact the assignment of the
mortgage did not take place until March 17, 200~, several days
after the filing of the complaint where they claim to already have
"lost or destroyed the mortgage note".
Unlike statutory prerequisites to filing a lawsuit, standing is having
a sufficient interest in the outcome of litigation which will warrant a
Court's entertaining it.
The plaintiff in this case, still only a TRUSTEE for these securities,
never had an interest in the mortgage or the promissory note, and
never had standing to bring this action.
In this case, the Court is without jurisdiction because the Plaintiff
LBNA, a trustee, has perpetrated a fraud upon this Court in this
action as set out herein.
The falseness of the plaintiff's allegations that it owned, held and
possessed the subject mortgage and promissory note is readily
apparent from a cursory review of the documents attached to the
complaint and the 1ater filed assignment.
The defendant seeks a hearing to this matter to obtain an Order
dismissing this foreclosure action filed by a trustee of a securitized
mortgage pool based on a lack of standing; a lack of subject
matter jurisdiction; failure to state a cause of action for foreclosure
and for fraud on the Court which is also supported by Florida Rule
1.S4O(b) even at this late date. Also defendant Puentes seeks an
Order to strike the Final Judgment of foreclosure dated December
12, 2008 and order setting foreclosure sale set for January 23,
2009. .c;>
The defendant seeks a finding that the plaintiff's assertions that it
was the owner of the mortgage and the promissory note at issue
were false and that the plaintiff was fully aware of such false
allegations at the time the plaintiff filed this foreclosure action while
claiming it bad already lost the mortgage note it did not own. Under
Florida Rule 1.54O(b). there is no time limitation due to fraud and
 misrepresentation in dismissing a summary judgment.
22. The plaintiff LBNA is not the "owner' of the ~ mortgage or the
promissory note as
the plaintiff alleges to this Court in its complaint and not to grant
defendant Puentes relief
would be most harmful to him as once the scheduled sale takes
place, there is no further
recourse while Plaintiff LBNA is not damaged as there is no
beneficial interest for them to
protect where delay would cause them harm.
23. The plaintiff's allegations that it "owned' "held' and
"possessed' the mortgage and promissory note that are the
contracts that are the subject of this foreclosure action are
false and were made in bad faith as the Plaintiff knew
said allegations were false. In fact
LBNA almost always claims they have lost their notes and cannot
find them.
24. The plaintiff LBNA, only as trustee, establishes in its complaint
that it was fully aware
that its claims to have standing to pursue this foreclosure action
were untrue and an
impossibility at the time the plaintiff made such allegations to this
Court for they had to
assign the mortgage note at a later date, being March 17. 2008
{See Exhibit «A j. Rhea v.
Halkney, 157 So. 190, 193 (FIa. 1934)
25. "A plea is considered 'sham' when it is palpably or inherently
false. and from the plain or
conceded facts in the case, must have been known to file party
interposing it to be untrue.'"
Rhea v. Holkney, 157 So. 190, 193 (FIa. 1934); O'Berry»: Pearson.
186 80.430 (1939); Furstv. Blackman, 744 So.2d 1222{Fla. 4d1
DCA 1999), Reif Deve/opmen. Inc. v. Wachovia Mortg. Ca., 340
So.2d 1267 (FIa. 4· DCA 1976). The plaintiff's complaint is a
―sham‖.
--
---
The integrity of the civil litigation process depends on the truthful
disclosure of facts.
Metropolitan Dade County v. Martinson. 736 8o.2d 794 (Fla. 3R1
DCA 1999), Andrews v. Palmus De Majorca Condo, 898 So.2d 1066
(Fla. 5* DCA 2005). plaintiffs actions
undermine the integrity of this civil litigation process.
27. A trial court has the inherent authority, within the exercise of
sound judicial discretion, to
dismiss an action and strike an order when a plaintiff has
perpetrated a fraud or made
misrepresentations to the Court. .Arzuman v. Suad., 843 So.2d 950
(Fla. 411I DCA 2003), Piullno v. R.F. Concrete Constr . Inc; 904
 So.2d 658 (Fla. 4110 DCA 2005)
A party guilty of fraud or misconduct in the prosecution of a civil
proceeding should not be permitted to continue to employ the
judiciary to achieve its ends where defendant asks this court for
immediate relief and protection . .Andrews v. Polmas De Majorca
Condo, 898 So.2d 1066 (FIa. 511I DCA 20(5)
The plaintiff LBNA's lack of ownership of the mortgage and the
promissory note in this case goes to the heart of its claim of
standing, permeates the entire proceeding and subverts the
integrity of the action. Metropolitan Dade County v. Martinsen. 736
So.2d 794 (Fla. 311l DCA 1999)
The plaintiff's efforts to misrepresent ownership of the note are a
mere pretense set up in bad faith and without color of filet. Reg
Development, Inc v. Wachovia Supra and Furst v. BIac1mI01l.
supra.
It is appropriate for the trial court to dismiss an action based on
fraud where there is a blatant showing of fraud, pretense. collusion,
or other similar wrongdoing. Distefano v. Stale Farm Mutual.
Automobile Ins. Co., 84(j So.2d 572, 514 (Fla. ) 51 DCA 2003)
Rule 1210(a) of the Florida Rules of Civil Procedure provides in
pertinent part:
Every action may be prosecuted in the name of the real party in
interest. but a personal representative. administrator, guardian.
trustee of an express trust. a party with whom or in whose name a
contract has been made for the benefit of another, or a party
expressly authorized by statute may sue in that person's own name
without joining the party for whose benefit the action is brought. .
The plaintiff meets none of these standing criteria.
Standing requires that the party prosecuting the action have a
sufficient stake in the outcome and that the party bringing the
claim be recognized in the law as being a real party in interest
entitled to bring the claim. This entitlement to prosecute a claim in
Florida courts rest exclusively in those persons granted by
substantive law, the power to
enforce the claim. Kumar Corp. v. Nopa! Lines, Ltd. et al, 462
So.2d 1178 (F1a. 3d DCA
1985)
34. No Florida case holds that a separate entity can maintain suit
on a note payable to another
entity unless the requirements of Rule 1210{a) of the Florida Rules
of Civil Procedure and applicable Florida Law are met. Corcoran v.
Brody, 347 So.2d 689 (Fla. 4th DCA 1977)
35. "The determination of standing to sue concerns a court's
exercise of jurisdiction to hear
and decide the cause pled by a particular party." Rogers & Ford
Constr. Corp. 11.
Corlandia Corp., 626 So.2d 1350, 1352 (Fla. 1993)
36. Defendant Puentes seeks a dismissal of the plaintiff's
complaint on the basis of fraud on
 the court, making numerous misrepresentations, and under the
circumstances of this case,
"a formal evidentiary hearing on this motion to dismiss, as well as
permissible discovery
prior to the hearing, is required." Dynasty Express Corp. v. Weiss,
675 So.2d 235, 239 (FIa 4* DCA 1996)
37. Recent decisions of many courts from around the country
from state courts, federal district
courts and bankruptcy courts have caused actions such as the
present to be dismissed for
failure to state a claim and for ffailure to assert an injury in fact.
Copies of these court
orders, to date, can be presented to and filed with the Court and
are incorporated herein.
38. As held in the In re Foreclosure Actions, the appropriate
documentation required to
..... -:
effectuate an equitable assignment and having legal standing to
bring a foreclosure action
must be through a trust and/or assignment documents executed
before the action was commenced, OT both as circumstances may
require. 2007 WL 4034554 at *1 (N.D. Ohio
2007). A trust cannot be effective until it bas been executed so the
assignment documents
that place property in trust would need to be executed before any
action could be taken.
Here. the assignment documents were not executed until after the
action was brought in
court.. This is a fraud upon the court and should be dismissed
because the plaintiff's bad no legal standing to even bring the
action for foreclosure at the time that they did.
Where a plaintiff does not own a mortgage OT have any interest in
the mortgage at the time
of filing foreclosure action, the case must be dismissed for failing to
comply with
statutory requirements of standing. See Davenport v. HSBC
Bonk,275 Micb.App. 344,
347-348, 739 N.W.2d 383, 385 (Mich.App..,2007) (Where the
defendant did not own the
mortgage or an interest in the mortgage at the time in which they
commenced foreclosure
proceedings. Quite simply, defendant did not yet own the
indebtedness that it sought to foreclose. Because defendant lacked
the statutory authority to foreclose" the foreclosure
proceedings were void Db initio). See also Fleet Nal. Bonlc v.
Nazareth.75 Conn.App.
791. 794-795. 818 A.2d 69, 71 (Conn.App..2003) (In this case.
however, the plaintiff was
never the holder of the note. The Plaintiff has failed to cite any
 authority, nor has our
research found any. to support its claim that it has standing to
foreclose on the mortgage
without ever having been assigned the note). See also m re
Nosek,386 B1 374. 380 (Bkrtcy.D.Mass..2008) (Holding that those
parties who do not hold the note or
mortgage and who do not service the mortgage do not have
standing to pursue motions for
relief or other action arising :from the mortgage obligation.
Schwartz, 366 B..R.. at 270).
40. Similarly. where action was commenced only a few days
before execution of an
assignment, courts have held that the Plaintiff has no standing to
bring an action in court.
So regardless of the amount of time between the action being filed
and the execution of
-~~-
the assignment, the assignment must be executed prior to any
assignment. See Mongage
Electronic Registration Systems. mers.. 17. Thompson, 2002 WL
521704 (Conn.Super 2002) (Plaintiff had no standing to bring
foreclosure action, and thus, court lacked jurisdiction
over action, where action was commenced at a time when Plaintiff
had no interest in
mortgage being foreclosed; defendant was served writ, summons
and complaint three days before plaintiff was assigned mortgage to
be foreclosed, and plaintiff offered court no
evidence as to its legal or equitable right to bring action on or
before date of service. C.G.SA § 49-17).
Florida Courts have also held in similar cases that an assignment
must be executed before a party may file suit. See Progressive
W.1ns. Co. 1'. McGrath Comollmily Chiropractic. 913 So.2d 1281,
1287 (Fla.App. 2d DCA 200s)(Where an insurance provider alleged
that insurance benefits were assigned to it without producing a
written instrument, then amended the claim with a written
instrument dated six months after the filing of the suit, held that
the provider lacked standing because there was no assignment at
the time that the case was filed in court).
Courts have held that a party's lack of standing is a defect that
cannot be cured by acquiring the right of standing after action has
already been filed. See Gwa1tnev of Smithfield. Ud. l'.
CI}esgpeaJre BqyFound..lnc.. 484 us, 49, 69 (1987) (Scalia, J.,
concurring) ("Subject matter jurisdiction depends on the state of
things at the time of the action brought). See Also Progressive
Exp.ms. Co . 913 So.2d 1281. Compare to DasmoIlfl1estments.
LLC v. RealtvAssoc. Fund m, LP.459 F. Supp. 2d 1294, 1302 (S.D.
Fla., 2006)(Party suing on Promissory Note must be in actual
possession of the original note to have standing).
The plaintiff cannot in good faith deny knowledge of the judicial
findings of these many courts around the country, it is now even in
newspapers and on television, and these widely publicized issues
relate directly to the underlying standing problem that Plaintiff
LBNA has in this case and other cases.
44.· The Plaintiff LBNA is fully aware that the trustee never owns
Promissory' notes as MERS once stated in the case of Mortgage
Electronic RegistrLllioJJ Systems. Jnc. v. Nebrasm Department of
Bonking, where MERS pronounced that as trustee of a pool of
mortgage backed securities, It does not acquire mortgage loans .
because it only holds legal title to members' mortgages in a
nominee capacity ... and that it does not own the promissory notes
secured by the mortgages and has 00 right to payments made to
the Note." LBNA as Trustee, is just like MERS as explained in the
Nebraska case that "it (the trustee) mere)y immobilius the
mortgage lien while transfers of the promissory Notes and servicing
rights continue to occur." Mor/gage Elec: RegisJration Sys., Inc. v.
Nebraska Dept. a/Banking, 704 N.W.2d 714, 717 (Neb. 2005)
As a result in the instant case, the plaintiff LBNA knew and was
fully aware that it was asserting a right to foreclose as it was the
owner and holder of tile subject mortgage and promissory note
when the plaintiff knew that such right did not exist and die
plaintiff fiu1her knew that it was not the owner or the holder of the
subject mortgage note at 1he time the plaintiff filed its complaint
herein alleging that it owns and holds and possesses the subject
promissory note and mortgage. These allegations are utterly false
and were knownpJaintiff to be false at the time the plaintiff filed
this action on March 13~ 2008. In effect, plaintiff LBNA falsely
represented the status of the debt, in particular, . that it was due
and owing to plaintiff LNA at the time the suit was filed, and that
LBNA was an innocent purchaser for value, when in fact, only an
assignment for no value had not been accomplished days later on
March 17.2008. All a total Sham.
In Florida, the prosecution of' a foreclosure action is by the rightful
owner of the mortgage and the holder of1be promissory note. At
the time of this filing, LBNA has not been shown to have a
connection to this matter.
It is clear from the mortgage and the assignment later produced
and attached h~. that a person other than the plaintiff is the true
owner of the claim sued upon and that the plaintiff is not the real
party in interest and is not shown to be authorized to bring this
action
Florida Rule of Civi1; Procedure 1.130(a) requires a plaintiff to
attach copies of all bonds, notes, bills of exchange, contracts,
aecouats, or documents upon which action may be brought to its
complaint. Instead, even before the assignment, LBNA was already
claiming to be the rightful owner and that the "mortgage note had
either been lost, destroyed. and that plaintiff was unable to state
the manner in which this occurred ... and after diligent search they
were unable to obtain possession of the mortgage note:' LBNA
wants this court to believe that this is an isolated case involving the
defendant Puentes, but
in fact, they never owned the note and in many suits they bring,
they make the same claims before the court often going
unchallenged as they foreclosed on other's property.
The Plaintiff also has failed to attach a copy of any other document
or contract upon which this action to prosecute the breach of a
promissory note is being brought.
Fla. R. Cw. P. Rule 131O(b)provides that all Exhibits attached to a
pleading shall be considered a part of the pleadings for all
purposes. It appears on the face of the plaintiff's complaint and the
documents attached thereto that the plaintiff is not the proper
party to bring this action. Because the facts revealed by Plaintiff‘s
exhibits are inconsistent with Plaintiff's allegations as to the
ownership of the subject mortgage and note, those allegations are
neutralized and Plaintiff‘s complaint is rendered objectionable.
Greenwald 1'. Triple D Properlies.lnc.. 424 So.2d 185, 187 (FIa.
411I DCA 1983).
When exhibits are inconsistent with the Plaintiff‘s allegations of
material filed as to who the real party in interest is, such
allegations cancel each other out. Fladellv. Palm Beach County
Canvassing Board. 772 So.2d 11240 (Fla 2000); Greenwald 1'.
Triple D Properties, Inc., 424 So.2d 185, 187 (Fla. 411I DCA 1983);
Costa Bella Development Corp. v. Costa Development Corp., 441
So.2d 1114 (Fla. 3d DCA 1983).>
-_.:,
Lastly, Florida Rule 1..54O(b) also gives relief 1iom judgment,
decrees or Orders if there is
merit to the case, which there is in this case. In paragraph (b) on
motion and upon such terms that are just. the court may relieve a
party or a party‘s legal representative from a final judgment,
decree, order, or proceeding for the following reasons:
i, Mistake, inadvertence, surprise. or excusable neglect;

ii. Newly discovered evidence which by due diligence could not have
been

discovered in time to move for a new trial or rehearing; and

iii, Fraud (whether heretofore denominated intrinsic or extrinsic).

Misrepresentation or other misconduct of an adverse party.

The nde does not limit the power of a court to entertain an

independent action to relieve a

party from a judgment, decree, order, or proceeding or to set aside

a judgment or decree
 for fraud upon the court. From the plaintiffs own pleading. it is easy
to see where there

have been both fraud and misrepresentation in this case and other
eases which LBNA and

their attorneys are also involved.

WHEREFORE, The Defendant, XXXX, prays that this Honorable

Court grant a beariog (if necessary') and dismiss the Plaintiff‘s

complaint and this action with prejudice; immediately strike the
Final Judgment of Foreclosure and the order scheduling foreclosure
sale dated

December 12. 2008; award this defendant all other relief to which
this defendant proves himself entitled

to including but not limited to an award for reasonable and

necessary attorney's fees; or in the alternative. issue a temporary
restraining order to allow for a hearing on this matter as delay will
not cause prejudice

to non-standing party plaintiff LBNA but would severely harm

defendant XXXX.
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has
been furnished by regular Il.S, Mail and facsimile to
___________________. of January, 2009.
Respectfully submitted. _;~

Ann Foreclosure Case Dismissed

---------------------------
03/05/10 at
10:17 AM http://mattweidnerlaw.com/blog/wp-
content/uploads/2010/03/orderjirotka.pdf

Ann Foreclosure Case Killer- The Subpoena Duces Tecum

February 24th, 2010 · 1 Comment · Foreclosure
03/04/10 at The cat is way out of the bag. The lenders and banks that brought
10:30 PM our country to the verge of collapse with fraud, misrepresentation
 and lies have now brought these same practices into local
courtrooms. Every day judges who sign foreclosure orders are
confronted with legal pleadings that do not conform to the most
basic requirements of professional standards, but who really cares
about that…the real issue is that because the lenders cannot
produce the evidence they need to proceed with their cases,
they….produce the evidence they need to proceed with their cases.
I‘ve previously posted about affidavit and assignment fraud..it
comes in three areas:
1) False Affidavits of Service or False Affidavits That We Could Not
Serve the Defendant. (See Sewer Service);
2)False Assignments of Mortgage (MERS assigns this Mortgage to
Deutsche Bank who now has the right to foreclose);
3)False Affidavits of Amounts due and owing.
A Subpoena for Every Foreclosure!
Many times these documents are false on their face, but sometimes
it takes a little digging to uncover the lies and
misrepresentations….that‘s where a subpoena comes in. The
following is text of a subpoena I use. Next is a Motion to Strike
Affidavit. Now there are going to be foreclosures that are proper
(such as when original lenders foreclose) but in virtually every
other case (especially when a pretender lender is a Plaintiff), when
pressed, you‘re going to find that the evidence submitted to the
court is filled with mistakes lies or outright misrepresentations.
Given what we‘re learning about the scope of this
problem…subpoenas should be dropped in every case for every fact
witness, assignor, assignee and affiant. Please share results of your
work with me! Together we‘ll take my beloved courts back.
SUBPOENA DUCES TECUM FOR RECORDS WITH DEPOSITION
STATE OF FLORIDA:
TO:
YOU ARE HEREBY COMMANDED to appear before a person
authorized by law to take depositions at the law offices of
MATTHEW D. WEIDNER, P.A., 1229 Central Avenue, St. Petersburg,
Florida 33705, on MONTH DAY, 2010, for the taking of your
deposition in this action and to have with you at the above time
and place the following:
1. All books, papers, records, documents and other tangible things
kept by LITTON LOAN SERVICING, LP concerning the transactions
alleged in the complaint against Annabel E. Montgomery.
2. Any and all other books, papers, records, documents or tangible
things that relate to HSBC BANK, USA, ASSOCIATION AS TRUSTEE
FOR THE ACE SECURITIES CORPORATION HOME EQUITY LOAN
TRUST, SERIES 2005-AG1, ASSET BACKED PASS-THROUGH
CERTIFICATES‘ claim against ANNABEL E. MONTGOMERY.
3. All employment records that exist between Christopher Spradling
and any employer who has employed Spradling within the last
three years including current employers.
4. All records that purport to give Christopher Spradling the
 authority to sign or execute any documents on behalf of any person
or entity.
5. All documents, records, books, evidence or instructions that you
reviewed or relied upon in order to prepare the affidavit or
assignment executed in this case.
These items will be inspected and may be copied at that time. You
will not be required to surrender the original items. You have the
right to object to the production pursuant to this subpoena at any
time before production by giving written notice to the attorney
whoose name appears on this subpoena. You may condition the
preparation of the copies upon the payment in advance of the
reasonable cost of preparation.
If you fail to: (a) appear as specified, or (b) furnish the records
instead of appearing as provided above; or (c) object to this
subpoena you may be in contempt of Court. You are subpoenaed
by the attorneys whose names appear on this subpoena, and unless
excused from this subpoena by the attorney or the Court, you shall
respond to this subpoena as directed.
DATED on XXXX X, 2010.
FOR THE COURT
Matthew D. Weidner, P.A.
1229 Central Avenue
St. Petersburg, FL 33705
By: ________________________________
Matthew D. Weidner
FBN: 0185957

ann Defendant’s Motion to Strike Affidavit of Christopher

Spradling and for attorney’s fees and costs
02/27/10 at
07:30 PM COMES NOW, the Defendant Annabel E. Montgomery (hereinafter
―Defendant‖), by and through the undersigned counsel MATTHEW
D. WEIDNER, and respectfully MOTIONS THIS COURT TO STRIKE
AFFIDAVIT OF CHRISTOPHER SPADLING AND FOR ATTORNEY‘S
FEES AND COSTS, pursuant to Fla. R. Civ. Pro. 1.510, and in
support thereof states as follows:

FACTS

1. This is an action for foreclosure of real property owned by

the Defendant.
2. The named plaintiff in this case is HSBC BANK, USA,
NATIONAL ASSOCATION, AS TRUSTEE FOR THE ACE
SECURITIES CORPORATION HOME EQUITY TRUST, SERIES
2005-AG1, ASSET BACKED PASS-THROUGH CERTIFICATE
 (hereinafter ―Plaintiff‖).
3. On February 2, 2010 Plaintiff, by and through its counsel
Florida Default Law Group, P.L. (hereinafter ―Florida Default
Law Group‖), gave Notice of Filing of Affidavit as to Amounts
Due and Owing and the accompanying Affidavit (hereinafter
―Affidavit‖).
4. The Affiant of the above-mention Affidavit was identified as
Christopher Spradling (hereinafter ―Spradling‖). Spradling
identified himself as a ―Foreclosure Manager‖ for LITTON
LOAN SERVICING, LP (hereinafter ―Litton‖). Litton, in turn,
was identified as ―the servicer of the loan…[Litton] is
responsible for the collection of this loan transaction and
pursuit of any delinquency in payments.‖[1]
5. Spradling, based upon his personal knowledge, averred in
the Affidavit that: (1) the Plaintiff or its assigns was owed a
total of $408,809.30; (2) the Plaintiff was entitled to enforce
the Note and Mortgage; and (3) Plaintiff was entitled to a
judgment as a matter of law.[2] The Affidavit does not
contain any mention as to who owes the Plaintiff the sum
alleged save for one sentences line which cryptically state
―[s]pecifically, I have personal knowledge of the facts
regarding the sums which are due and owing to Plaintiff or
its assigns pursuant to the Note and Mortgage which is the
subject matter of the lawsuit‖ and a second which states ―I
am familiar with the books of account…concerning the
transactions alleged in the Complaint.‖[3] Emphasis added.
6. Nowhere in the Affidavit was either Litton or Spradling
identified as either the Plaintiff or the Plaintiff‘s authorized
agent.
7. Upon information and belief, Litton is simply a ―middleman‖
of sorts who is responsible for the transfer of funds between
the various assignees of the underlying Mortgage and Note
and has no knowledge of the underlying transactions
between the Plaintiff and Defendant.
8. Upon information and belief, Spradling, as employee of
Litton and not the Plaintiff, has no knowledge of the
underlying transactions between the Plaintiff and Defendant.

LEGAL REASONING IN SUPPORT OF MOTION

1. I. Plaintiff Failed to Attach Documents Referred to in

the Affidavit
1. a. Failure to Attach Documents Violates Fla.
Stat. §90.901 (1989)

Florida Statue §90.901 (1989) states, in pertinent part, that

―[a]uthentication or identification of evidence is required as a
condition precedent to its admissibility.‖ The failure to authenticate
documents referred to in affidavits renders the affiant incompetent
 to testify as to the matters referred to in the affidavit. See Fla. R.
Civ. Pro. 1.510(e) (which reads, in pertinent part, that
―affidavits…shall show affirmatively that the affiant is competent to
testify to the matters stated therein‖); Zoda v. Hedden, 596 So. 2d
1225, 1226 (Fla. 2d DCA 1992) (holding, in part, that failure to
attach certified copies of public records rendered affiant, who was
not a custodian of said records, incompetent to testify to the
matters stated in his affidavit as affiant was unable to authenticate
the documents referred to therein.)

Here, Spradling affirmatively states in the Affidavit that he is

―familiar with the books of account and have examined all books,
records, and documents kept by LITTON LOAN SERVICING, LP
concerning the transactions alleged in the Complaint.‖[4]
Furthermore, Spradling averred that the ―Plaintiff or its assigns, is
owed…$408,809.30.‖[5] Nevertheless, Spradling has failed to
attach any of the books, records or documents referred to in the
Affidavit. In addition, Spradling does not meet the definition of
―custodian,‖ which is ―a person or institution that has charge or
custody (of…papers).‖ See Black‘s Law Dictionary, 8th ed. 2004,
custodian. By Spradling‘s own admission ―[t]he books, records,
and documents which [Spradling] has examined are managed by
employees or agents whose duty it is to keep the books accurately
and completely.‖[6] Emphasis added. Thus, Spradling has only
examined the books, records, and documents which he refers to in
the Affidavit while the true custodians of these documents are the
employees or agents whose duty it is to keep the books accurately
and completely. In essence, Spradling averred to records which he
did not submit nor could he testify for the authenticity of just as the
affiant in Zoda did.

Spradling‘s failure to attach the documents referred to in the

Affidavit without being custodian of same is a violation of the
authentication rule promulgated in Fla. Stat. §90.901 (1989), which
renders him incompetent to testify to the matters stated therein as
the Second District in Zoda held. Therefore, the Affidavit should be
struck in whole.

1. b. Failure to Attach Documents Violates Fla. R. Civ.

Pro. 1.510(e)

Fla. R. Civ. Pro. 1.510(e) provides, in part, that ―[s]worn or

certified copies of all papers or parts thereof referred to in an
affidavit shall be attached thereto or served therewith.‖ Failure to
attach such papers is grounds for reversal of summary judgment
decisions. See CSX Transp., Inc. v. Pasco County, 660 So. 2d 757
(Fla. 2d DCA 1995) (reversing summary judgment granted below
where the affiant based statements on reports but failed to attach
 same to the affidavit.)

As previously demonstrated, Spradling referred to books, records,

and documents kept by Litton which allegedly concerned the
transaction referred to in the Complaint against the Defendant.
Nevertheless, as previously demonstrated, Spradling has not
attached any of these books, records or documents. This failure to
do so is a violation of Fla. R. Civ. Pro. 1.510(e) and is grounds for a
reversal of a summary judgment decision in favor of the Plaintiff.
Therefore, the Affidavit should be struck in whole.

1. II. Affidavit Was Not Based Upon Spradling’s Personal

Knowledge

As a threshold matter, the admissibility of an affidavit rests upon

the affiant having personal knowledge as to the matters stated
therein. See Fla. R. Civ. Pro. 1.510(e) (reading, in pertinent part,
that ―affidavits shall be made on personal knowledge‖); Enterprise
Leasing Co. v. Demartino, 15 So. 3d 711 (Fla. 2d DCA 2009); West
Edge II v. Kunderas, 910 So. 2d 953 (Fla. 2d DCA 2005); In re
Forefeiture of 1998 Ford Pickup, Identification No.
1FTZX1767WNA34547, 779 So. 2d 450 (Fla. 2d DCA 2000).
Additionally, a corporate officer‘s affidavit which merely states
conclusions or opinion is not sufficient, even if it is based on
personal knowledge. Nour v. All State Supply Co., So. 2d 1204,
1205 (Fla. 1st DCA 1986).

The Third District, in Alvarez v. Florida Ins. Guaranty Association,

661 So. 2d 1230 (Fla. 3d DCA 1995), noted that ―the purpose of
the personal knowledge requirement is to prevent the trial court
from relying on hearsay when ruling on a motion for summary
judgment and to ensure that there is an admissible evidentiary
basis for the case rather than mere supposition or belief.‖ Id at
1232 (quoting Pawlik v. Barnett Bank of Columbia County, 528 So.
2d 965, 966 (Fla. 1st DCA 1988)). This opposition to hearsay
evidence has deep roots in Florida common law. In Capello v. Flea
Market U.S.A., Inc., 625 So. 2d 474 (Fla. 3d DCA 1993), the Third
District affirmed an order of summary judgment in favor of Flea
Market U.S.A as Capello‘s affidavit in opposition was not based
upon personal knowledge and therefore contained inadmissible
hearsay evidence. See also Doss v. Steger & Steger, P.A., 613 So.
2d 136 (Fla. 4th DCA 1993); Mullan v. Bishop of Diocese of
Orlando, 540 So. 2d 174 (Fla. 5th DCA 1989); Crosby v. Paxson
Electric Company, 534 So. 2d 787 (Fla. 1st DCA 1988); Page v.
Stanley, 226 So. 2d 129 (Fla. 4th DCA 1969). Thus, there is ample
precedent for striking affidavits in full which are not based upon the
affiant‘s personal knowledge.

Here, the entire Affidavit is hearsay evidence as Spradling has

absolutely no personal knowledge of the facts stated therein. As an
employee of Litton, which purports to be the servicer of the loan,
he has no knowledge of the underlying transaction between the
Plaintiff and the Defendant. Neither Spradling nor Litton: (1) were
engaged by the Plaintiff for the purpose of executing the underlying
mortgage transaction with the Defendant; or (2) had any contact
with the Defendant with respect to the underlying transaction
between the Plaintiff and Defendant. In addition, the Affidavit fails
to set forth with any degree of specificity what duties Litton
performs for the Plaintiff, save for one line which states that Litton
―is responsible for the collection of this loan transaction and pursuit
of any delinquency in payments.‖[7] At best, Litton acted as a
middleman of sorts, whose primary function was to transfer of
funds between the various assignees of the underlying Mortgage
and Note. Litton is not the named Plaintiff in this case, nor does
the Affidavit aver that either Spradling or Litton is the agent of the
Plaintiff.

Because Spradling has no personal knowledge of the underlying

transaction between the Plaintiff and Defendant, any statement he
gives which references this underlying transaction (such as the fact
that the Plaintiff is allegedly owed sums of monies in excess of
$400,000) is, by its very nature, hearsay. The Florida Rules of
Evidence define hearsay as ―a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.‖ Fla. Stat.
§90.801(1)(c) (2007). Here Spradling is averring to a statement
(that the Plaintiff is allegedly owed sums of money) which was
made by someone other than himself (namely, the Plaintiff) and is
offering this as proof of the matter asserted (that Plaintiff is entitled
to enforce the Note and Mortgage and that Plaintiff is entitled to a
judgment as a matter of law.) At best, the only statements which
Spradling can aver to are those which regard the transfer of funds
between the various assignees of the Mortgage and Note.

The Plaintiff may argue that while Spradling‘s statements may be

hearsay, they should nevertheless be admitted under the ―Records
of Regularly Conducted Business Activity‖ exception. Fla. Stat.
§90.803(6) (2007). This rule provides that notwithstanding the
provision of §90.802 (which renders hearsay statements
inadmissible), hearsay statements are not inadmissible, even
though the declarant is available as a witness, if the statement is

[a] memorandum, report, record, or data compilation, in any form,

of acts, events, conditions, opinion, or diagnosis, made at or near
the time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business
activity and if it was the regular practice of that business activity to
make such memorandum, report, record, or data compilation, all as
shown by the testimony of the custodian or other qualified witness,
or as shown by a certification or declaration that complies with
paragraph (c) and s. 90.902(11), unless the sources of information
or other circumstances show lack of trustworthiness. Emphasis
added.

There are, however, several problems with this argument. To

begin, and as previously demonstrated, no memorandums, reports,
records, or data compilation have been offered by the Plaintiff.
Furthermore, the books, records, and documents referred to by
Spradling in the Affidavit (which, of course, were not attached)
were kept by Litton, who cannot be a person with knowledge as
Litton does not have any personal knowledge of underlying
transaction between the Plaintiff and the Defendant. Finally, Litton,
as the source of this information, shows a lack of trustworthiness
because Spradling failed to attach the books, records, and
documents to the Affidavit and because neither Litton nor Spradling
have knowledge of the underlying transaction between the Plaintiff
and the Defendant.

Because Spradling‘s statements in the Affidavit are not based upon

personal knowledge, they are inadmissible hearsay evidence. As
no hearsay exception applies to these statements, the Affidavit
should be struck in whole.

1. III. Affidavit Included Impermissible Conclusions of

Law Not Supported by Facts

An affidavit in support of a motion for summary judgment may not

be based upon factual conclusions or opinions of law. Jones Constr.
Co. of Cent. Fla., Inc. v. Fla. Workers‘ Comp. JUA, Inc., 793 So. 2d
978, 979 (Fla. 2d DCA 2001). Furthermore, an affidavit which
states a legal conclusion should not be relied upon unless the
affidavit also recites the facts which justify the conclusion.
Acquadro v. Bergeron, 851 So. 2d 665, 672 (Fla. 2003); Rever v.
Lapidus, 151 So. 2d 61, 62 (Fla. 3d DCA 1963).

Here, the Affidavit contained conclusions of law which were not

supported by facts stated therein. Specifically, Spradling averred
that the Plaintiff was entitled to enforce the Note and Mortgage and
that the Plaintiff was entitled to a judgment as a matter of law, two
legal conclusions, but did not support this conclusion with
statements which referenced exactly who the Plaintiff was entitled
to enforce the Note and Mortgage against. In fact there is no
mention of any of the parties in question save for one cryptic line in
where Spradling states that ―[s]pecifically, I have personal
knowledge of the facts regarding the sums which are due and
owing to Plaintiff or its assigns pursuant to the Note and Mortgage
which is the subject matter of the lawsuit‖ and another which
 states ―I am familiar with the books of account…concerning the
transactions alleged in the Complaint.‖[8] Nowhere in the Affidavit
does Spradling state that the Plaintiff is entitled to enforce the Note
and Mortgage against the Defendant nor does Spradling state that
the Plaintiff is entitled to a judgment as a matter of law because
the Defendant owes the Plaintiff money. At best the Affidavit
accuses someone of owing the Plaintiff $408,809.30 and that the
Plaintiff should be able to enforce some Note and Mortgage against
that particular someone. By not clearly identifying the parties in
question, Spradling has not adequately supported his two legal
conclusions.

Because the Affidavit contained impermissible conclusions of law

which were not supported by facts stated therein, the Affidavit
should be struck in whole.

1. IV. Sanction of Attorney’s Fees is Appropriate

Fla. R. Civ. Pro. 1.510(g) reads, in full, that

[i]f it appears to the satisfaction of the court at any time that any
of the affidavits presented pursuant to this rule are presented in
bad faith or solely for the purpose of delay, the court shall forthwith
order the party employing them to pay to the other party the
amount of the reasonable expenses which the filing of the affidavits
caused the other party to incur, including reasonable attorneys‘
fees, and any offending party or attorney may be adjudged guilty of
contempt. Emphasis added.

The undersigned counsel has expended considerable time and

resources preparing to defend against an affidavit which has, on its
face, no basis in law. Both Florida Default Law Group and the
Plaintiff both knew that Spradling‘s affidavit lacked authenticity and
reliability yet still chose to file it with the Court. In addition, this is
not Florida Default Law Group‘s first time filing affidavits in bad
faith. Recently, the Bankruptcy Court for the Southern District of
Florida sanctioned both Florida Default Law Group and its client,
WELLS FARGO, $95,130.45 for false representations made in
affidavits in that court as well as other bankruptcy courts in
Florida. See In re: Fazul Haque, Case No. 08-14257-BKR-JKO
(Order Granting Wells Fargo, N.A.’s Motion for Relief from Stay and
Imposing Sanctions for Negligent Practice and False
Representations, Oct. 28, 2008). This is indicia of a modus
operandi on Florida Default Law Group‘s part to present
misrepresentations and false affidavits to the Court which make an
award of attorney‘s fees and costs an appropriate sanction.

WHEREFORE, Defendant asks this Court to GRANT its MOTION TO

STRIKE AFFIDAVIT OF CHRISTOPHER SPRADLING and enter an
 ORDER granting ATTORNEY‘S FEES AND COSTS and any other relief
the Court deems just and proper.

[1] See Affidavit As to Amounts Due and Owing, pg. 1.

[2] Id, pgs. 1, 2.

[3] Id.

[4] See Affidavit As to Amounts Due and Owing, pg. 1.

[5] Id, pg. 2.

Ann Know the Facts - Texas Pro Se Won

----------------------------------
02/27/10 at Quote from Msfraud.org
11:41 AM
(excerpt from pro se filed response)
CAUSE NO. 096 239885 09 (Tarrant County Texas, 96th District
Court)

Deutsche Bank National Trust Company as Trustee in trust for the

benefit of the Certificateholders for Argent securities Inc. 2006-W4.
Asset-Backed Pass-Through Certificates, Series 2006-W4
Application for Order for Foreclosure

1. General Denial - Defendant hereby enters a general denial as

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

2. Plaintiff lacks standing to invoke TRCP 735 to foreclose -

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

FACTS

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

3. Plaintiffs are claiming defendant‘s indebtedness through a

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

4. A plaintiff ―bears the burden of demonstrating standing and must

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

5. Proof of Signatures and Status as Holder in Due Course -

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

6. The alleged debt obligation in question, as identified by Codilis &

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

7. Defendant denies that any obligation is owed to either Deutsche

Bank National Trust Company as Trustee in trust for the benefit of
the Certificateholders for Argent securities Inc. 2006-W4. Asset-
Backed Pass-Through Certificates, Series 2006-W4 or Deutsche
Bank National Trust Company. Validity of Fraudulently Created
Documents

8. As noted in the transcript of the MEETING OF THE TASK FORCE

ON JUDICIAL FORECLOSURE RULES November 7, 2007, (note
pages 27, 28 and 33), as found on the
Supreme Court of Texas web site
(http://www.supreme.courts.state.tx.us/jfrtf/pdf/110707transcript.
pdf), makes issue with, addresses and discloses the same
fraudulent practices, Defendant alleges are taking place in this
instant case. See attached exhibit G

9. Defendant has therefore been required to expend time and effort

to defend an action that has no legal basis to support it. A Broken
Chain of Assignments renders the ―Deed of Trust‖ Void and
Unenforceable under UCC 3-201, 3-204 & 3-302 and as such no
triggering of the foreclosure clause in the ―Deed of Trust‖ is
possible.
 The Prospectus

10. Prospectus Definitions : Trustee/Owner/Holder - As defined by

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

11. Prospectus Definitions : Separate Entities - As defined by the

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

The Pooling and Servicing Agreement

12. Conveyance of Mortgage Loans and the Pooling and Servicing

Agreement - Further, the Argent securities Inc. 2006-W4. Asset-
Backed Pass-Through Certificates, Series 2006-W4 Pooling and
Servicing Agreement Section 2.01 ―Conveyance of Mortgage
Loans‖, defines the process and provides the forms for enforcing
foreclosure, by the Master Servicer, with very specific rules for
recording assignments ―in the appropriate public office for real
property records‖, from the Custodian to the Trustee and no such
filings were recorded.

13. Validity of Unrecorded Instrument and the Pooling and

Servicing Agreement - And pursuant to Argent securities Inc. 2006-
W4 Asset-Backed Pass-Through Certificates, Series 2006-W4
Pooling and Servicing Agreement Section 2.01 ―Conveyance of
Mortgage Loans‖, the Master Servicer is required to record all
notices of assignment to any of the above, and by failing to record
such notices of assignment in Tarrant County to the alleged debt
obligation in question, have created a ―defective chain of
assignments‖, with blatant disregard of the Texas property Code
Sec.13.001 (a) ―Validity of Unrecorded Instrument‖, as verified with
a recent title search. See attached exhibits C,
E, F and D
 15. Validity of Unrecorded Instrume nt and Texas Law - Texas
Property Code Section 13.001 (a) ―Validity of Unrecorded
Instrument‖ requires that each notice of assignment to the debt
obligation in question referenced within the original deed of trust
filed in Tarrant County records office # D206085073 on March, 26,
2006, be acknowledged, sworn to, or proved and filed for record as
required by law. Research however, indicates that a notice of
assignment from Argent Mortgage Co. to Argent Securities Inc. of
the alleged debt obligation in question, should have been recorded
in Tarrant County somewhere on or before the Argent securities
Inc. 2006-W4. Asset-Backed Pass-Through Certificates, Series
2006-W4 ―cutoff date‖, April 1, 2006, and no such records were
found, as evidenced with the title search thereby exposing a blatant
violation of this code. This fact along with all the above mentioned
facts renders the alleged debt obligation in question, referenced
within the original deed of trust filed with Tarrant County records
office # D206085073 on March, 26, 2006, null and void. See
attached exhibits C, H and M.

Defective Notary and The Foreclosure Mill

16. He‘s Just a Notary - The notice of assignment #

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

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

18. Person Entitled to Enforce Instrument and Limited Power of

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

19. Nationwide Title Clearing Inc. - Brian Bly‘s true place of

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

20. Lies and Deceit - On the notice of assignment # D209045468

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

21. Fraudulent Filing and Florida Law - Bobbie Jo Stoltd, pursuant

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

22. A formal complaint to the Florida Governor‘s Office Notary

Section has been filed. See attached exhibit N.

23. Fraudulent Filing of Financing Statement and Texas Law -

Under the Texas Business and Commerce code Sec. 9.5185 (a) (2)
―Fraudulent Filing‖ and the Texas Penal Code Sec. 37.101 (a) (2)
 ―Fraudulent Filing of Financing Statement‖, by notarizing notice of
assignment # D209045468 recorded in Tarrant County on February
19, 2009 from Argent Mortgage to Deutsche Bank National Trust
Company as Trustee for Argent securities Inc. Asset-Backed Pass-
Through Certificates, Series 2006- W4 (See attached exhibit O),
Bobbie Jo Stoltd may be found guilty of a felony of the third degree
in the State of Texas, thereby rendering the notice of assignment #
D209045468 defective, invalid and void. See attached exhibits J, O
and K.

24. Transfer of Instrument; Rights Acquired by Transfer - The

fraudulent act of creating an unlawful document, such as the one
created by the hands of Bryan Bly, has rendered this notice of
assignment, # D209045468 (See attached exhibit O), defective and
pursuant to the Texas Business and Commerce Code Sec. 3.203 (b)
―Transfer of Instrument; Rights Acquired by Transfer‖, the
transferee, Deutsche Bank National Trust Company as Trustee for
Argent securities Inc. Asset-Backed Pass-Through Certificates,
Series 2006-W4, cannot acquire rights of a holder in due course
and therefore does not have the rights to enforce. See attached
exhibits J and O.

The Fair Debt Collection Practices Act

25. Validation of debts - Defendant responded to plaintiffs‘ ―NOTICE

OF ACCELERATION‖, with requests to ―view the alleged original
paper promissory note with all assignments and allonges showing a
complete chain of assignments‖ and to identify the true owner and
holder of the alleged debt instrument. Plaintiffs‘ reply is in violation
of the Fair Debt Collection Practices Act, § 809 (b) ―Validation of
debts‖ – 15 USC 1692g, by their failure to include the information
requested. (See attached Exhibits B, I and P) Plaintiffs are in
possession of Defendant‘s second
letter informing them of their non compliance. (See attached
Exhibit Q) 26. Furnishing certain deceptive forms and Federal Rules
- Pursuant to the Fair Debt Collection Practices Act, and in violation
of § 812 ―Furnishing certain deceptive forms‖ – 15 USC 1692j, the
notice of assignment # D209045468 recorded in Tarrant County on
February 19, 2009 from Argent Mortgage to Deutsche Bank
National Trust Company as Trustee for Argent securities Inc. Asset-
Backed Pass-Through Certificates, Series 2006-W4 (see attached
exhibit O), is being used to create the false belief that a lawful act
is being executed by persons to collect a non-valid debt, as it was
provided by the plaintiffs in response to the defendants original
request seeking to ―view the alleged original paper promissory note
with all assignments and allonges showing a complete chain of
assignments‖ and to identify the true owner and holder of the
alleged debt instrument. See attached exhibits B, I and P …
27. A formal complaint to the Federal Trade Commission has been
filed and acknowledged. See attached exhibit R.

The Texas Government Code Fraud upon the court

28. Fraudulent Document or Instrument - Defendant alleges

Plaintiffs have intentionally failed to submit relevant foundational
evidence to this court in an attempt to cover up the truth and to
fraudulently invoke the jurisdiction of this Honorable Court. The
notice of assignment #D209045468 recorded in Tarrant County on
February 19, 2009 from Argent Mortgage to Deutsche Bank
National Trust Company as Trustee for Argent securities Inc. Asset-
Backed Pass-Through Certificates, Series 2006-W4 (See attached
exhibit O), in violation of the Texas Government Code Sec. 51.901
―Fraudulent Document or Instrument‖ (c) (2) (A), (B) and (C), was
included in the plaintiffs letter dated 08/20/2009 (See attached
exhibit P). That letter was sent in reply to the defendants‘ dispute
letter dated 06/11/2009 (See attached exhibit B) as an attempt to
mislead the defendant to believe the plaintiffs have rights to
enforce the note as holder or holder in due course. That same
fraudulent notice of assignment is not in the pleading that was
submitted and filed with Tarrant County by the plaintiffs as CAUSE
NO. 096 239885 09 APPLICATION FOR ORDER FOR FORECLOSURE.
See attached exhibit T.

29. Pooling and Servicing Agreement and Conveyance of Mortgage

Loans - As defined by the Argent securities Inc. 2006-W4 Asset-
Backed Pass-Through Certificates, Series 2006-W4 Pooling and
Servicing Agreement, SEC. 2.01 ―Conveyance of Mortgage Loans‖,
only the Depositor, ―Argent Securities Inc.‖, was authorized to
assign instruments to the Trust‘s Trustee, and Argent Mortgage Co.
was no longer the holder or owner of the alleged debt obligation in
question; Deutsche Bank National Trust Company as Custodian for
the benefit of the Certificateholders for the Argent securities Inc.
2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-W4
became the reputed holder and the Certificateholders became the
reputed owner of the alleged debt obligation in question on or
before its official ―cut off date‖ of April 1, 2006. See attached
exhibits E, F and D.

The Securities Act of 1933 - TITLE 15 - CHAPTER 2A - SUBCHAPTER

III

30. Evidence of recording of indenture and The Securities Act of

1933 -

Under the Securities Act of 1933 - TITLE 15 - CHAPTER 2A -

SUBCHAPTER III - Sec. 77ccc ―Definitions ‖:
(7) The term "indenture" means any mortgage, deed of trust, trust
or other indenture, or similar instrument or agreement (including
any supplement or amendment to any of the foregoing), under
which securities are outstanding or are to be issued, whether or not
any property, real or personal, is, or is to be, pledged, mortgaged,
assigned, or conveyed thereunder.

Under the Securities Act of 1933 - TITLE 15 - CHAPTER 2A -

SUBCHAPTER III - Sec. 77nnn ―Evidence of recording of indenture‖:

(b) ―Evidence of recording of indenture‖ - If the indenture to be

qualified is or is to be secured by the mortgage or pledge of
property, the obligor upon the indenture securities shall furnish to
the indenture trustee - (1) promptly after the execution and
delivery of the indenture, an opinion of counsel (who may be of
counsel for such obligor) either stating that in the opinion of such
counsel the indenture has been properly recorded and filed so as to
make effective the lien intended to be created thereby, and reciting
the details of such action, or stating that in the opinion of such
counsel no such action is necessary to make such lien effective;
and (2) at least annually after the execution and delivery of the
indenture, an opinion of counsel (who may be of counsel for such
obligor) either stating that in the opinion of such counsel such
action has been taken with respect to the recording, filing, re-
recording, and refiling of the indenture as is necessary to maintain
the lien of such indenture, and reciting the details of such action, or
stating that in the opinion of such counsel no such action is
necessary to maintain such lien. In clear violation of the above, as
evidenced with the title search, there was no opinion of counsel; no
recording, and there was no filing at the Tarrant County land
records office of the alleged debt obligation. (Exhibit C).

31. Person Entitled to Enforce Instrument and the Pooling and

Servicing Agreement - As defined by the Business and Commerce
Code Sec. 3.301 ―Person Entitled to Enforce Instrument‖, notice of
assignment # D209045468 recorded in Tarrant County on February
19, 2009 from Argent Mortgage Co. to Deutsche Bank National
Trust Company as Trustee for Argent securities Inc. Asset-Backed
Pass-Through Certificates, Series 2006-W4 (See attached exhibit
O), is defective, as only Deutsche Bank National Trust Company as
Custodian for the benefit of the Certificateholders for the Argent
securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates,
Series 2006-W4, as defined by the Pooling and Servicing
Agreement within, was the reputed holder of the alleged debt
obligation in question, and as such was the only entity authorized
to assign instruments to the Trust‘s Trustee, as Argent Mortgage
Co. was not the holder of the alleged debt obligation in question.
See attached exhibits E, F and D.
32. Holder in Due Course and the Pooling and Servicing Agreement
- As defined by the Business and Commerce Code Sec. 3.302 (a)
(1) ―Holder in Due Course‖, the notice of assignment #D209045468
recorded in Tarrant County on February 19, 2009 from Argent
Mortgage Co. to Deutsche Bank National Trust Company as Trustee
for Argent securities Inc. Asset-Backed Pass-Through Certificates,
Series 2006-W4 (See attached exhibit O), is defective, as only
Deutsche Bank National Trust Company as Custodian for the benefit
of the Certificateholders for the Argent
securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates,
Series 2006-W4, as defined by the Pooling and Servicing
Agreement within, was the reputed holder of the alleged debt
obligation in question, and as such was the only entity authorized
to assign instruments to the Trust‘s Trustee, and Argent Mortgage
Co. was not the holder in due course of the alleged debt obligation
in question and therefore did not have the rights to enforce. See
attached exhibits E, F and D.

33. The assignment of the mortgage, without an assignment of the

debt, is a nullity - As there were no legitimate notice of
assignments filed in the Tarrant County land records office of the
alleged debt obligation in question to the Deed of Trust (#
D206085073 recorded March, 26, 2006 in Tarrant County) (See
attached exhibit C) to record the conveyances involved in the
creation and subsequent marketing of the Argent securities Inc.
2006-W4. Asset-Backed Pass-Through Certificates, Series 2006-
W4, a separation of the note and the mortgage resulted, thereby
rendering said Deed of Trust a nullity. In Kirby v. Williams, 230
F.2d 330 (United States Court of Appeals Fifth Circuit) February 10,
1956. Rehearing Denied April 24, 1956 states: The note and
mortgage are inseparable; the former as essential, the latter as an
incident. An assignment of the note carries the mortgage with it,
while an assignment of the latter alone is a nullity." Van Burkleo v.
Southwestern, Tex. Civ. App., 39 S.W. 1085, 1087; Sheldon v. Sill,
49 U.S. 441 (1850) 49 U.S. 441: The assignment of the mortgage,
without an assignment of the debt, is a nullity.

34. Presentment - The Texas Business and Commerce Code Sec.

3.501 (b) (2) (A) and (B) ―Presentment‖ requires exhibition of the
instrument for the purpose of enforcement (produce the original ink
signed note), and as the plaintiffs were not the holder in due course
of the alleged debt obligation in question and did not have the
rights to enforce, presentation of a copy of the alleged debt
obligation is a blatant violation, and thereby should be deemed
inadmissible as evidence.

35. Customary Procedure - Introduction of a copy of the alleged

debt obligation in question rather than the original ink-signed paper
promissory note by the plaintiffs, using the excuse that it is of
customary procedure, is inadmissible. In United States of America
v. Hibernia National Bank, 841 F.2d 592 96 A.L.R.Fed. 895, 5 UCC
Rep.Serv.2d 1392, United States Court of Appeals, Fifth Circuit.
April 5, 1988. Rehearing and Rehearing En Banc Denied May 9,
1988, the court stated: ―Hibernia's reliance on commercial custom
is misplaced. Commercial custom does not apply where the U.C.C.
provides otherwise‖.

36. Unclean Hands Doctrine - If said alleged debt obligation did

exist and was presented to this court by the plaintiffs, then the
Unclean Hands Doctrine would be used as a defense, as the
plaintiffs are guilty of deliberately withholding a fraudulent notice of
assignment from this court to conceal their criminal involvement in
its fraudulent creation and use in an attempt to effect owner,
holder or holder in due course status for the purpose of collecting a
debt that the they do not have rights to.

37. Plaintiffs Codilis& Stawiarski, P.C. and American Home

Mortgage Servicing Inc. and Deutsche Bank National Trust
Company as Trustee in trust for the benefit of the Certificateholders
for Argent securities Inc. 2006-W4. Asset-Backed Pass-Through
Certificates, Series 2006-W4 and Deutsche Bank National Trust
Company also have acted in a manner that is unlawful, oppressive,
tainted with fraud and absent of evidence of vital facts.

38. Necessity of immediate relief to preserve assets , as set forth in

the se complaints, without the assistance of this Court, the
defendant will suffer immediate irreparable and substantial harm
and injury as a result of the deliberate fraudulent actions of the
Plaintiffs.

39. Due to the above mentioned facts, plaintiffs Codilis& Stawiarski,

P.C. and American Home Mortgage Servicing Inc. and Option One
Mortgage Company and Deutsche Bank National Trust Company as
Trustee in trust for the benefit of the Certificateholders for Argent
securities Inc. 2006-W4. Asset-Backed Pass-Through Certificates,
Series 2006-W4 and Deutsche Bank National Trust Company or
Deutsche and Bank National Trust Company as any other entity, do
not have and never had standing to bring action before this court
nor the authority to evoke the
jurisdiction of this court.

================================
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant prays that
Plaintiffs be denied their request to foreclose. As the plaintiffs have
failed to establish the authority of this court and as a result of the
fraud that they have committed, they will never be able to obtain
the jurisdiction of this court. Therefore this Honorable Court lacks
 jurisdiction to hear this case at hand and at a minimum should
dismiss this case with prejudice. Plaintiff respectfully requests this
Court permanently restrain Plaintiffs and any other relief this Court
deems equitable and just.
================================
ATTACHED EXHIBITS
A. Codilis & Stawiarski Acceleration Letter
B. letter to Codilis & Stawiarski - dispute
C. title search
D. record assignments (chart)
E. pooling and servicing agreement excerpts
F. prospectus excerpts
G. MEETING OF THE TASK FORCE ON JUDICIAL FORECLOSURE
RULES
H. original enote (chart)
I. why the original (chart)
J. assignment fraud (other assignments - Brian Bly and Bobbie Jo
Stoltd signatures etc.)
K. limited power of attorney D207376789
L. signature (chart)
M. required assignments (chart)
N. complaint to Florida notary section
O. notice of assignment D209045468 - Argent Deutsche
P. letter (package) received from Codilis 8/20/09
Q. letter to Codilis 09/10/09
R. complaint to FTC
S. Fraud or Fraudulent (chart)
T. letter (package) received from Codilis 9/9/09
U. CD with prospectus and pooling and servicing agreement in full,
all exhibits in .pdf
=================================
Respectfully submitted by:
__________________________________________
Geoffrey Anson Wilner - Defendant, pro se
6311 Avanti Dr.
Arlington, Texas
76001
817 467 7478
CERTIFICATE OF SERVICE
I hereby certify that a correct copy of the foregoing was served on
the following counsel of record on September ___, 2009, via
certified mail, return receipt.
_________________________________
Geoffrey Anson Wilner Codilis & Stawiarski, P.C.
6311 Avanti Dr. 650 N. Sam Houston Parkway, East
Arlington, Texas Suite 450
76001 Houston, Texas
817 467 7478 77060
Defendant, pro se ATTORNEY FOR THE PLAINTIFFS
 Unquote

ann FREE APRIL CHARNEY AND OTHER FORECLOSURE DEFENSE

MANUALS
02/24/10 at
10:47 AM E-mail me at ocean11@the-beach.net

Ann LEGAL MEMORANDUM IN OPPOSITION TO

02/19/10 at PLAINTIFF‟S MOTION FOR SUMMARY JUDGMENT

07:18 PM
__________________________________________________ __

Atlantic City, NJ

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

On the Brief

LEGAL ARGUMENT

<!--[if !supportLists]-->I. <!--[endif]-->PLAINTIFF’S MOTION

FOR SUMMARY JUDGMENT

SHOULD BE DENIED AND SUMMARY JUDGMENT SHOULD

BE ENTERED IN FAVOR OF THE DEFENDANTS ON THEIR
COUNTERCLAIM

Plaintiff has filed a Motion for Summary Judgment which relies on

factually inapplicable decisional law; ignores the threshold issue of

legal standing; fails to justify the striking of Defendants contesting

Answer; and purports to be supported by a Certification of counsel for

Plaintiff which is not made on personal knowledge and which is in fact

based on incompetent hearsay. Plaintiff has failed to demonstrate the

absence of genuine issues of material fact and has failed sustain its

burden to be entitled to the entry of summary judgment.

Plaintiff‟s own submissions and admissions therein demonstrate

that the Defendants are entitled to the entry of summary judgment on

their Sixth Separate Defense and their Counterclaim as a matter of law,

and pursuant to their Cross-Motion for Summary Judgment filed

separately but simultaneously herewith.

Plaintiff relies on the holding of Somerset Trust Co. v. Sternberg,

238 N.J. Super 279 (Ch.Div. 1989) in alleged support of its request to

strike the contesting answer of the Fairhurst Defendants. A close

reading of the Sternberg opinion reveals that Plaintiff‟s reliance is

misplaced, as the cited portion plainly states that the “pattern” involves

a situation where “the mortgagor fails to respond” [to the summary

judgment motion]. It is of record that the Fairhurst Defendants have

responded to Plaintiff‟s summary judgment motion.

The second cited portion of the Sternberg opinion states that “many of

the answers and defenses proffered are legally insufficient as they fail

to challenge the essential elements of the mortgagee‟s right to

foreclosure and fail to interpose a validly recognized defense in

foreclosure suits”. It is of record that the Defendants have challenged

the Plaintiff‟s very standing to foreclose and thus its right to seek the
remedy of foreclosure ab initio and as set forth more fully herein.

Plaintiff‟s view of the scope of Chancery litigation is as wrongfully

narrow as that found by the court in Leisure Technology-Northeast,

Inc. v. Klingbiel Holding Company, 137 N.J.Super. 353, 349 A.2d 96

(N.J. Super A.D. 1975), wherein it was held that “R.4:6-2 requires that

every defense to an action „legal or equitable, in law or in fact” be

asserted in an answer, and that one of the purposes of the adoption of

the Judicial Article of the 1947 Constitution was to permit the

resolution of all aspects of a controversy between parties to be resolved

in a single forum, whether the claims be legal or equitable in nature.

137 N.J.Super. at 357. These defenses include what are termed as

“germane” counterclaims in foreclosure actions. Such counterclaims

are “germane” if they arise out of the subject matter of the mortgage

transaction, and discovery is permitted on such counterclaims. 137

N.J.Super. at 358 (reversing order striking defendants‟ first affirmative

defense, severing counterclaim, and transferring to Law Division).

The sixth Separate Defense of the Defendants states that Plaintiff was

not, at the time of the filing of the Complaint and in view of the

admissions in paragraph 4(a) thereof, in possession of any legal

interest in the mortgage sufficient to institute a foreclosure. The First

Count of the Counterclaim of the Defendants requests the entry of a

Declaratory Judgment for dismissal of the foreclosure complaint based

on the absence of the necessary and proper proofs to satisfy the legal

standing requirements to institute a foreclosure. The Second Count of

the Counterclaim requests the entry of Injunctive Relief prohibiting the

entry of a judgment of foreclosure and the sale, conveyance, or transfer

of the real property the subject of this action based on the lack of legal

standing of the Plaintiff/Counter-Defendant to institute a foreclosure.

The Sixth Separate Defense and Counterclaim are “germane” to the

foreclosure action as they arise out of the subject matter of the

mortgage transaction, going to the threshold issue of the legal standing

of the Plaintiff to institute this foreclosure action. As such, the

contesting Answer should not be stricken; discovery should be

permitted; and Plaintiff‟s Motion for Summary Judgment should be

denied.

Plaintiff has failed to cite a single case which precludes the

assertion of an equitable counterclaim for declaratory and injunctive

relief which challenges the very legal standing of a plaintiff to institute

a foreclosure action, and has also failed to cite a single case which

permits a plaintiff to institute a foreclosure action when it has no legal

interest in the mortgage and note at the time of the filing of the

foreclosure action. Plaintiff‟s Motion for Summary Judgment should

thus be denied as being unsupported by any decisional law on the

specific facts of this case.

The Courts of New Jersey have apparently not addressed the specific

factual situation in this case. In instances where there is no New Jersey

case “on point”, the Courts of New Jersey have utilized opinions from

other jurisdictions for guidance. (See, e.g., Greate Bay Hotel & Casino,

Inc. v. City of Atlantic City, 264 N.J.Super. 213, 217-218, 624 A.2d

102 (N.J. Super L. 1993)(analysis of treatment of business trusts as

distinct legal entities by various other jurisdictions including

California, New York, and Michigan where no New Jersey case

explicitly dealt with types of trusts in case); Gregory v. Allstate

Insurance Company, 315 N.J.Super. 78, 82-83, 716 A.2d 573

(N.J.Super.L. 1997)(analyzing split of authority in jurisdictions which

considered issue of whether victim of unintentional auto collision was

covered by uninsured motorist coverage). The Courts of the State of

New York have been repeatedly presented with the legal standing

issues in foreclosure actions raised in this case, and have consistently

held that when there is no proof that the foreclosing party had the

requisite legal interest in the mortgage and note at the time that it filed

the foreclosure action that dismissal of the action was proper.

In mortgage foreclosure actions (as in all actions), the foreclosing party

must have standing to bring the action:

Standing to sue is critical to the proper functioning of the judicial

system. It is

a threshold issue. If standing is blocked, the pathway to the

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

IndyMac Bank v. Bethley, 2009 NY Slip Op 50186(U)(N.Y.Sup.Ct.

2/6/2009), citing Saratoga County Chamber of Commerce, Inc. v. Pataki,

100 NY2d 801, 812 [2003], cert denied 540 US 1017 [2003]; Caprer v.

Nussbaum, 36 AD3d 176, 181 [2d Dept 2006]; Stark v. Goldberg, 297

A2d 203 [1st Dept 2002].

Where there is no evidence that the plaintiff, prior to commencing a

foreclosure action, is the holder of the mortgage and note or took physical

delivery of the mortgage and note or that same were conveyed by written

assignment, the plaintiff did not have standing to institute the action. New

Century Mortgage Corporation v. Durden et al., 2009 NY Slip Op

50175(U) (N.Y. Sup. Ct. 2/2/09), citing Deutsche Bank Trust Co. Ams. V.

Peabody, 20 Misc. 3d 1108A (Sup.Ct. Saratoga County 2008) and

Countrywide Home Loans, Inc. v. Taylor, 17 Misc. 3d 595 (Sup.Ct.

Suffolk County 2007) and additional cases cited therein.

A plaintiff has no foundation in law or fact to foreclose upon a mortgage

in which the plaintiff has no legal or equitable interest, and where an

assignment of the mortgage post-dates the filing of the complaint, the

plaintiff does not have the requisite ownership interest at the time of filing.

As a foreclosure of a mortgage may not be brought by one who has no title

to it and absent a legally effective transfer of the debt, the (post-filing)

assignment of the mortgage is a legal nullity. U.S. Bank National

Association v. Kosak et al., 2007 NY Slip Op 51680(U)(N.Y. Sup.Ct.

9/4/2007), citing Katz v. East-Ville Realty Co., 249 AD2d 243, 672

NYS2d 308 [1st Dept 1998] and Kluge v. Fugazy, 145 AD2d 537, 536

NYS2d 92 [2d Dpet 1988].

In Bethley, the Court held that Plaintiff IndyMac lacked standing to

foreclose on the mortgage and note as it did not own the mortgage and

note on the day that the Complaint was filed. IndyMac, as Plaintiff has

done here, attempted to assign the mortgage and note two days after filing

the foreclosure action. In the instant case, Plaintiff‟s own submissions

demonstrate that Plaintiff did not own the note and mortgage on December

24, 2007 (the day that the Complaint was filed), having only [purportedly]

come into such ownership, at the earliest, some three days thereafter, that

being on December 27, 2007 by virtue of the very Assignment attached as

Exhibit “B” to the Plaintiff‟s moving papers. As the subject Assignment

was not even recorded by the Atlantic County Clerk until almost a year

later on November 5, 2008, Plaintiff arguably had no interest in the

mortgage until late 2008.

As such, Plaintiff lacked legal standing to institute this mortgage

foreclosure action ab initio. This issue of material fact warrants not only

the denial of Plaintiff‟s Motion for Summary Judgment, but also supports
the entry of summary judgment in favor of the Fairhurst Defendants on

their Sixth Separate Defense and their Counterclaim.

In addition to the disputed issues of material fact set forth in the

Defendants‟ Statement of Material Facts filed separately but

simultaneously herewith, the Defendants have propounded a First Request

for Production, First Request for Admissions, and First Set of

Interrogatories upon Plaintiff, none of which have been responded to as of

the date of this Response. These discovery requests seek information as to

the Plaintiff‟s legal standing including the chain of title to the mortgage

and note which are factual issues material to not only the Plaintiff‟s claim

but also the Counterclaim of the Defendants. As there is a dispute as to the

absence of factual issues at this early stage of the proceedings where the

case is not fully developed, summary judgment is inappropriate. Velantzas

v. Colgate-Palmolive Company, Inc., 109 N.J. 189, 193, 536 A.2d 237

(N.J. 1987):

Generally, we seek to afford “every litigant who has a bona fide

cause of action or defense the opportunity for full exposure of his
case”, and “When “critical facts are peculiarly within the moving
party‟s knowledge,” it is especially inappropriate to grant summary
judgment when discovery is incomplete.

109 N.J. at 193, citing United Rental Equip.Co. v. Aetna Life and Casualty

Ins. Co., 74 N.J. 92, 99, 376 A.2d 1183 (1977)(citing Robins v. Jersey

City, 23 N.J. 229, 240-41, 128 A.2d 673 (1957), and Martin v. Educational
Testing Serv., Inc., 179 N.J. Super 317, 326, 431 A.2d 868 (Ch.Div.1981).

In cases where a suit is in an early state and not fully developed, the

standard by which a court ought to review a judgment terminating it now

is from the standpoint of whether there is any basis upon which the

plaintiff should be entitled to proceed further. Velantzas, supra at 193,

citing Bilotti v. Accurate Forming Corp., 39 N.J. 184, 193, 188 A.2d 24

(1963). As the Plaintiff herein did not have the legal standing to institute

this foreclosure action ab initio, Plaintiff cannot proceed any further, and

thus Plaintiff‟s Motion for Summary Judgment must thus be denied.

Plaintiff also attempts to support its Motion for Summary Judgment with

the Certification of Richard P. Haber, Esq., who is counsel for the Plaintiff

and who is not an officer or director of the Plaintiff. The subject

Certification is not made on personal knowledge, and admits that it is

based on a “review of the computerized records of the plaintiff”. As the

Certification is not based on personal knowledge, the statements in the

Certification can only be based on information and belief.

Rule 1:6-6 requires that Certifications in support of Motions be made on

personal knowledge. Personal knowledge excludes matters based on

information and belief. See., e.g., Wang v. Allstate Ins. Co., 125 N.J. 2, 16

(1991); Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 153 (1988).

The Haber Certification, which is based on a “review of computerized

records” (which are per se incompetent hearsay) by someone without

personal knowledge, is thus incompetent to support the Plaintiff‟s Motion

for Summary Judgment as a matter of law and New Jersey procedure.

The Haber Certification also makes reference to and attaches the

Assignment (Exhibit “B” to the Certification). This Assignment, which

constitutes an admission by the Plaintiff, is the very document

demonstrating that Plaintiff had no legal interest or ownership in either the

note or mortgage at the time that the Complaint was filed, and raises

genuine issues of material fact as to when (if ever) Plaintiff came into any

ownership rights of either the Note or the Mortgage. Plaintiff‟s Motion for

Summary Judgment must thus be denied, and summary judgment should

be entered in favor of the Fairhurst Defendants on their Sixth Separate

Defense and their Counterclaim.

CONCLUSION

Plaintiff has, by its very submissions, demonstrated that there are genuine

issues of material fact as to when, if ever, Plaintiff came into any

ownership interest in either the Note or Mortgage. Plaintiff‟s submissions

demonstrate that there is no genuine issue of material fact that Plaintiff did

not have any legal interest in either the note or the mortgage at the time it

filed this foreclosure action, and has thus demonstrated that it was without

legal standing to institute this action. Summary judgment for Plaintiff is

 thus inappropriate.

Summary Judgment is also improper at this time given that

discovery is incomplete. The Haber Certification, which consists of

incompetent hearsay, is legally inadmissible and does not in any way

support the entry of summary judgment for Plaintiff. If anything, the

Haber Certification supports the entry of summary judgment in favor of

the Defendants on their Sixth Separate Defense and their Counterclaim.

Plaintiff‟s Motion for Summary Judgment must thus be denied, and

summary judgment in favor of the Defendants on their Sixth Separate

Counterclaim should be granted pursuant to the Cross-Motion for

Summary Judgment filed by the Defendants.

Respectfully submitted,

(counsel)

PJ 2 ANN, and all out there , is there a limit on the number and or
time frame of QWR's a mortgage holder can submit to a "pretender
02/18/10 at lender" servicer, or aka ever shifting Foreclosing "agent". It seems
05:55 PM to me that every day brings yet more evidence of perpetration of
fraud on the American people and our system raising new
question's to be answered and raised.

Twix the Cat 1.

02/18/10 at I have submitted copies of mortgage assignments that I have found
10:21 AM on this website as well as Livinglies...I looked for assignments with
the same names as are on my documents...I just had a call
returned yesterday from the Register of Deeds in Boston,
MA(Suffolk Co) who agreed to send me certified copies of the
transfers from his county, that have the same names as mine do in
my Wisconsin mortgage transfers...

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

thanks,
Tom

Ann SOME IDEAS TO FIGHT FORECLOSURE

Dawsonville, GA (PRWEB) February 10, 2010 -- A previously
02/10/10 at undetected title flaw has been discovered on many previously
05:39 PM foreclosed properties. As the number of real estate foreclosures
skyrockets, the odds are higher that a home you live in today, or at
some point in the future may have had a foreclosure in its history.
Even if the foreclosure has long since passed, a loophole in the way
mortgages are recorded can create a serious title defect for
future owners. Title analysis performed this month by AFX Title
has detected this error to be common in random samples of
properties it reviewed. "This could affect the property
ownership of millions of homes nationwide" said David
Pelligrinelli, of AFX Title. "The mortgage recording method which
created this title flaw did not exist until recently. As title abstractors
are just seeing this problem emerge now but a wave of title claims
is coming over the next year or so."

The problem is created through a break in the chain of mortgage

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

The transfer of ownership in these mortgage backed securities

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

In the event that the loan goes into foreclosure at a later date, the
then-current owner of the loan files the foreclosure and sells the
property to a new owner, often at auction. The land records would
show a deed of transfer from the investment bank to the new
owner. This creates a break in the chain of ownership of the
mortgage rights. In many cases, the transfer of ownership
of the mortgage loan has gone from the original lender,
through several owners, and then to the foreclosing bank,
none of which is recorded on the property title history.
Technically, the foreclosing bank has no recorded title rights
to foreclose in the first place. Owners of the loan normally do
not publicly record each of the transfers out of expediency, and
cost. Filing a document of transfer (called an assignment) in the
land records incurs a substantial fee paid to the county clerk.

Some delinquent homeowners have used this error to delay the

foreclosure, forcing lenders to ―produce the note.‖ In these cases,
the bank has to go through the process of getting assignments to
the foreclosing bank after the fact. However, the title repair process
is not required however in the majority of cases when the
homeowner does not contest the foreclosure.

This leaves the break in chain of title dormant in the property

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

Unraveling the chain of title and clarifying ownership of loans will

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

As a national provider of property title searches, AFX Title is seeing

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

Pelligrinelli adds that some lenders and government

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

4closureFraud
http://www.4closureFraud.org

Ann THE NEXT STEP

----------------
02/01/10 at
06:33 PM So far the Homeowner filed Motion to Dimiss and called the Judge
clerk to schedule a Hearing at least in 3 months or more if possible.
The Judge may dismiss the case with prejudice, bank can't file the
lawwsuit anymore, Happy ending. Judge could dismiss the case
without prejudice, bank refiles lawsuit in couple months,
Homeowner will refile new Motion to Dissmiss , another merry go
round. Sometimes the Judge denies Motion to Dismiss and gives
Homeowner 10 or 20 days to file an Answer. Homeowner files
Answer with Affirmative Defense with Jury Trial together with
Discoveries. At any point of the lawsuit, Homeowner can go get a
lawyer. The lawyer can file Amended Motion to Dismiss or Amended
Answer. Homeowner can negotiate loan modification, loan
forebearance, lower interest etc if they wish. Examine the
Assignment, the rallonge and loan documents for frauds. The Bank
may file
Motion to Strike Affirmative Defenses. Homeowner can file Motion
to Compel if Bank refuses to produce documents requested.

Then at some point, the Bank will file Motion for Summary
Judgment . Now it is the tough part. The Homeowner can file more
discovery if necessary. Homeowner can depose the Bank, the
Servicer etc. Then he has to file Motion to Oppose Summary
Judgment before the Hearing date . An experienced lawyer is
strongly recommended at this point. Unless the Homeowner knows
to defend himself very well, he may lose the case at the hearing
and the Juge will schedule the sale of the house. Try to negotiate
with Plaintiff lawyer to delay the Hearing date and look for a good
lawyer.
If Homeowner can't afford a lawyer, then file a Motion to Oppose
Summary Judgment, an Affidavit and/or Memorandum of Law to
Support Motion to Oppose Summary Judgement. Start to research
on Bankruptcy options at the same time.

WAKE UP WE STOP PAYING ANYTHING AND EVERYTHING THE REASON WHY

THEY HAVE THE BALLS TO PULL THIS OFF IS BECAUSE WE
01/28/10 at HAVEN'T BOYCOTTED YET. PEOPLE STILL PAY TAXES, BILLS,
01:35 PM
 MORTGAGES

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

Ann I FOUND A WINNING CASE - FLORIDA FORECLOSURE CASE

MOTION TO DISMISS WAS GRANTED WITH PREJUDICE AND JUDGE
01/24/10 at REWARDS DEFENDANTS‘ ATTORNEY FEE- 5 YEARS LITIGATION 42
06:59 PM ATTORNEY HOURS.
————————————————�� �——————-------------------
----------–

DUVAL COUNTY CASE 16-20040CA-004918

BANK, OF NEW YORK, ACTING SOLELY IN ITS CAPACITY AS TRUS

PLAINTIFF XXXX-XXX-XX-XXX-X XXXXX
WILLIAMS, PAULETTE, ET VIR, ET AL DEFENDANT XXXX-XXX-XX-
XXX-X XXXXX
EQUICREDIT CORPORATIION TRUST,2001-2, PLAINTIFF XXXX-XXX-
XX-XXX-X XXXXX
UNKNOWN SPOUSE OF PAULETTE WILLIAMS, DEFENDANT XXXX-
XXX-XX-XXX-X XXXXX
AY AND ALL UNKNOWN PARTIES,CLAIMING BY, THRUOGH, UNDER,
AND,AGAINST THE HEREIN NAMED INDIVIDUAL,DEFENDANT(S)
WHO ARE NOT KNOWN TO,BE DEAD OR ALIVE, WHETHER
SAID,UNKNOWN PARTIES MAY CLAIM AN,INTEREST AS SPOUSES,
HEIRS,,DEVISEES, GRANTEES, OR OTHER,CLAIMANT, DEFENDANT
XXXX-XXX-XX-XXX-X XXXXX
MERCURY FINANCE COMPANY OF FLORIDA, DEFENDANT XXXX-
XXX-XX-XXX-X XXXXX
TENANT #1, DEFENDANT XXXX-XXX-XX-XXX-X XXXXX
TENANT #2, DEFENDANT XXXX-XXX-XX-XXX-X XXXXX
TENANT #3, DEFENDANT XXXX-XXX-XX-XXX-X XXXXX
TENANT #4 THE NAMES BEING,FICTITIOUS TO ACCOUNT FOR
PARTIES,IN POSSESSION, DEFENDANT XXXX-XXX-XX-XXX-X
XXXXX

Docket(s)
Image Effective Date Count Description

7/13/2004 COMPLAINT, NOTICE OF LIS PENDENS, SUMMONS

ISSUED (5)

7/13/2004 COVER SHEET

7/19/2004 NOTICE OF LIS PENDENS OR 11935-2461 (1)
 8/3/2004 SUMMONS RETURNED INDICATING SERVICE 7/15/04,
TENANT #1
8/3/2004 SUMMONS RETURNED NOT SERVED TENANT #2
8/3/2004 SUMMONS RETURNED INDICATING SERVICE 7/19/04,
MERCURY FINANCE CO. OF FLA.
8/3/2004 SUMMONS RETURNED NOT SERVED THE UNKNOWN SPSE
OF PAULETTE WILLIAMS
8/3/2004 SUMMONS RETURNED INDICATING SERVICE 7/15/04,
PAULETTE WILLIAMS

8/4/2004 MOTION TO DISMISS ATTY/DEFT

8/4/2004 REQUEST TO PRODUCE (P. WILLIAMS FIRST) TO THE
BANK OF NEW YORK, 8/3/04
8/16/2004 NON-MILITARY AFFIDAVIT TENANT 1 (THEARIS
HARVELL)
8/16/2004 MOTION FOR DEFAULT AND DEFAULT (ONE PAGE)
TENANT 1 (THEARIS HARVELL) & MERCURY FINANCE COMP. OF FL.
8/24/2004 NOTICE OF FILING AMENDED AFFIDAVIT OF
REASONALBLE ATT FEES
8/24/2004 AFFIDAVIT AS TO ATTORNEY‘S FEES
(AMENDED)ANDREW S.FORMAN,ESQ
8/25/2004 MOTION FOR SUMMARY JUDGMENT PLTF‘S, INCLUDING
A HRG,ETC ATY ANNE CORDELL
9/3/2004 NOTICE OF HEARING RM 204 OCT 1,04 9:30AM
9/28/2004 NOTICE OF CANCELLATION OF HEARING 10/1/04 AT
9:30A, RM. 204
10/4/2004 OBJECTION & MOTION CONTINUE HRG MOTION S.J.
ETC, ATY/DEFT P WILLIAMS
10/11/2004 NOTICE OF HEARING 10/28/04 AT 9:30A, RM. 204
10/28/2004 NOTICE OF CANCELLATION OF HEARING RM 204 OCT
28,04 9:30AM/UPS GROUND
6/14/2005 NOTICE OF FILING COPY OF ASSIGNMENT OF
MORTGAGE,ETC(3)/UPS
7/28/2005 NOTICE OF HEARING AUG.18,205 AT 10:35 AM
8/10/2005 MEMORANDUM IN SUPPORT OF DEFT MOTION TO
DISMISS…..ATTY/DEFT
8/23/2005 ORDER GRANTING MOTION TO DISMISS COMPLAINT-
PLTF HAS 20 DAYS TO REPLEAD
8/29/2005 MOTION FOR ATTORNEY‘S FEES AND COSTS, PAULETTE
WILLIAMS, ATT
9/15/2005 NOTICE OF FILING COPY OF AMND NOTICE OF LIS
PENDENS AND ORIGINAL AMND MORT.
9/19/2005 RECVD AMENDED NOTICE LIS PENDENS / FWD TO
RECORDING
9/22/2005 MOTION TO DISMISS AMEND.MORTGAGE
FORECLOSURE COMPLAINT, PAULETTE WM‘S/ATT
9/27/2005 NOTICE OF LIS PENDENS AMENDED, OR BK 12777 PG.
881 (1)
10/18/2005 NOTICE OF HEARING ON DEFT. PAULETTE
 WILLIAMS,ETC., 12/9/05 AT 2:10P
10/18/2005 NOTICE OF HEARING (AMND) ON DEFT P.
WILLIAMS,ETC., 12/13/05 AT 2:20P
10/19/2005 NOTICE OF HEARING (AMENDED),ETC/DEC 13.05
2;20PM
11/3/2005 NOTICE OF CHGN OF LAW FIRMS/THE FL DEFAULT LAW
GROUP,ETC/UPS
12/16/2005 ORDER GRANTING MOTION TO DISMISS AMENDED
MORTGAGE FORECLOSURE COMPLAINT-PLTF HAS 20 DAYS
————————————————�� �——————-
7/12/2006 MOTION TO DISMISS BY DEFENDANT W/PREJ & FOR
REASONABLE ATTYS FEES/PAULETTE WILLIAMS/ATTY
————————————————�� �——————–
7/24/2006 MOTION FOR LEAVE TO FILE COUNTERCLAIM, ETC.,
ATTY/P. WILLIAMS
7/27/2006 NOTICE OF HEARING 08/31/2006 10AM HON JOHNSON
7/28/2006 NOTICE OF FILING COPIES OF PLEADINGS FROM CASE
2006-1564-CA DIVISION CV-C
9/13/2006 NOTICE OF HEARING 09/26/2006 2:45PM RM 204 FED
EX
9/26/2006 RESPONSE TO MOT TO DISMISS W/PREJ//PLTF/ATTY
FED EX
————————————————�� �———————–

10/17/2006 ORDR GRNTING MOTION TO DISMISS WITH

PREJUDICE RECVD- FWD TO RECD
10/17/2006 ORDER GRANTING DISMISSAL OF DEFT. PAULETTE
WILLIAMS, OR BK 13595 PG. 1517 (2)
10/26/2006 RENEWED MOT FOR AWARD OF ATYS FEES & COSTS &
MOT FOR ORDER DETERMINING ENTITLEMENT TO
MULTIPLIER/PAULETTE WILLIAMS/ATY
————————————————�� �————————

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

1/19/2007 NOTICE OF HEARING (AMENDED)3/6/07 @ 2PM
3/7/2007 DEFT‘S EXHIBIT #1- AGREEMENT FOR PROFESSIONAL
SERVICES
————————————————�� �———————–

4/12/2007 ORDR GRNTING MT FOR ATTY‘S FEES & COSTS & FOR
MULTIPLIER RECVD- FWD TO FORECLOSURE CLERK
4/12/2007 ORDER GRANTING DEFEN MO/FOR ATTYY‘S FEES AND
COSR AND MULTIPLIER
4/12/2007 ORDER GRANT DEF MTN FOR ATTRNY FEE/COSTS, OR
BK 13931 PG 477 (6)
 ————————————————�� �————————

4/23/2007 MOTION FOR ENTRY OF FJ FOR ATTY‘S FEES AND

COSTS,ETC/ATT,DEFT
4/26/2007 NOTICE OF HEARING 05/03/2007 9:30AM RM 227
5/3/2007 FINAL JUDGMENT FOR ATTY‘S FEES, ETC., OR 13958-
1557 (2)
5/8/2007 MOTION FOR ORDER COMPELLING COMPLETION OF
FORM 1.977/ATT,DEFT
5/8/2007 REQUEST TO PRODUCE
5/14/2007 NOTICE OF APPEAL BK 13979 PG 2362
5/21/2007 DCA ACKNOWLEDGEMENT RECEIPT 1D07-2626
5/22/2007 NOTICE OF APPEARENCE OF COUNSEL ERIC C REED
ATTY FOR DEFTS FED EX
5/22/2007 DIRECTIONS TO CLERK
6/12/2007 DESIGNATION TO COURT REPORTER
6/29/2007 NOTICE OF FILING ORIG SUPERSEDEAS BOND FED EX
7/9/2007 BOND FILED, APPROVED & COPY PLACED IN FILE
7/12/2007 JOINT MOTION FOR SUBSTITUTION OF COUNSEL FOR
PLTF/ MITCHELL ROTHMAN ESQ & JOHN DANNECKER ESQ FED EX
7/13/2007 ORDER GRANTING MOTION JOINT, FOR SUB OF
COUNSEL FOR PLTF- SHUTTS & BOWEN
7/16/2007 COPY OF ORDER FROM DISTRICT COURT OF APPEAL
APPLT. MO.FOR EXT.OF TIME FOR SERVICE OF INITIAL BRIEF
7/16/2007 GRANTED
7/18/2007 PROCEEDINGS BEFORE THE HON LANCE M. DAY, TAKEN
3/6/07
8/31/2007 COPY OF ORDER FROM DISTRICT COURT OF APPEAL
APPLT MOTION FILED 8/23/07 SEEKING TO SUPPL.ROA GRANTED
9/14/2007 TRANS TO DCA: 1 VOL ROA, 1 VOL PRO, 1 EXH (07-
2626)
9/17/2007 NOTICE OF FILING
4/14/2008 COPY OF ORDER FROM DISTRICT COURT OF APPEAL
APPELLEE‘S MOTION FILED 05/29/07 FOR ATTY FEES GRANTED
4/14/2008 MOTION APPELLANT‘S MOTION FILED 11/15/07 FOR
ATTY FEES DENIED
4/30/2008 MANDATE (AFFIRMED) BOOK 14481 PAGE 672-676
5/12/2008 MOTION (UNOPPOSED) TO RELEASE SUPERSEDEAS
BOND/PLTF/ATTY FED EX
5/22/2008 ORDER GRANTING PLAINTIFF‘S UNOPPOSED MOTION
TO RELEASE SUPERSEDEAS BOND
6/4/2008 ORIGINAL SUPERSEDEAS BOND RETURNED TO
ATTORNEY‘S SHUTTS & BOWEN, P.A.
6/13/2008 ROA RETURNED FROM DCA (1D07-2626) 2 VOL 1
SUPPL. 1 EXH. STORED IN BOX 995
6/17/2008 NOTICE OF UNAVAILABILITY / NONAVAILABILITY JAMES
A KOWALSKI JR.,ESQ./PAULETTE WILLIAMS
4/6/2009 NOTICE OF DISMISSAL OF COUNTERCLAIM ATTY/DEFT
4/13/2009 NOTICE OF LIS PENDENS (RELEASE) BOOK 14840 PAGE
 1567-1568

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