IN THE CIRCUIT COURT OF THE T\VENTIETH JUDICIAL CIRCUIT IN AND FOR

COLLIER COUNTY, FLORIDA, CIVIL DIVISION

AURORA LOAN SERVICES, LLC,
Plaintiff,
vs.
CASE NO.: 09-142-CA
JUDITH MENDES DA COSTA; UNKO\VN
SPOUSE OF JUDITH MENDES DA COSTA IF
ANY; ANY AND ALL UNKNOWN PARTIES
CLAIMING BY, THROUGH, UNDER, AND
AGAINST THE HEREIN NAMED INDIVIDUAL
DEFENDANT(S) WHO ARE NOT KNOWN TO
BE DEAD OR ALIVE, WHETHER SAID
UNKOWN PARTIES MAY CLAIM AN
INTEREST AS SPOUSES, HEIRS, DEVISEES,
GRANTEES, OR OTHER CLAIMANTS; ISLAND
WALK HOMEOWNERS ASSOCIATION, INC.;
JOHN DOE AND JANE DOE AS UNKOWN
TENANTS IN POSSESSION
Defendant(s).
________________________ 1
ORDER GRANTING
DEFENDANT'S MOTION TO DISMISS
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THIS CAUSE came before the Court on Defendant's Motion to Dismiss Amended
Complaint. A hearing was held on Plaintiff s motion on April 7, 2010; Plaintiff s counsel
appeared telephonically; Defense counsel appeared in person. The basis for the motion is
Defendant's assertion that Plaintifflacks standing. Having considered the evidence and
arguments presented and the applicable law, and otherwise being fully advised in the premises,
the Court finds as follows:
Amended Complaint Never Filed
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Defense counsel provided the Court a copy of the Amended Complaint to Foreclose
Mortgage and the exhibits attached thereto in consideration of the instant motion. However,
there is no amended complaint in the Court file, and the Clerk of Court has confirmed that no
amended complaint has been filed. There are only minor differences in the two complaints. The
original complaint includes a second count to enforce a lost note; the amended complaint does
not. A copy of the mortgage is attached as an exhibit to Count I of the original complaint. The
Page 10f5
amended complaint has attached to it not only the mortgage but also the note and the assignment.
Even considering those additional exhibits as if they had been properly tiled, Defendant correctly
argues that Plaintiff lacks standing.
Standing
Standing is a threshold issue. Peace River/Manasota Regional Water Supply Authority v.
IMC Phosphates, 18 So.3d 1079 (Fla. 2
nd
DCA 2009); Hillsborough County v. Florida
Restaurant Ass'n, Inc., 603 So.2d 587 (Fla. 2
nd
DCA 1992); Miller v. Publicker Industries, Inc.,
457 So.2d 1374 (Fla. 1984). It is necessary and proper for this Court to address the issue of
standing. In Re Hwang, 396 B.R. 757 (U.S.B.C., 2008) ("Hence, 'a defect in standing cannot be
waived; it must be raised, either by the parties or by the court, whenever it becomes apparent' . ");
Bellistri v. Dcwen Loan Servicing, LLC, 284 S.W.3d 619 (Missouri Court of Appeals, 2009)
("Lack of standing cannot be waived and may be considered by the court sua sponte."). Counsel
argued at the hearing that Plaintiff has standing based on (1) WM Specialty Mortg., LLC v.
Salomon, 874 So.2d 680 (Fla. 4th DCA 2004), (2) its possession of the original note, and (3) the
assignment to Plaintiff. These arguments are without merit as explained below.
WM Specialty Mortg., LLC v. Salomon
This case stands for the proposition that the actual, physical delivery ofa note and
mortgage prior to the execution of an assignment may vest Plaintiff with standing based upon an
equitable transfer. In Wm Specialty, however, the assignment specifically stated that the
mortgage was physically transferred prior to the execution of the assignment; that is not the case
here. Unlike Wm Specialty, there is no indication in the assignment that the note and mortgage
were physically transferred to Plaintiff prior to its execution. To the contrary, there is every
indication that the note had not been transferred to Plaintiff prior to the execution of the
assignment by virtue of the second count to enforce a lost note in the original complaint.
Therefore, there is nothing in WAf Specialty that confers standing upon Plaintiff.
Possession of the Original Note
"While U.S. Bank alleged in its unverified complaint that it was the holder of the note
and mortgage, the copy of the mortgage attached to the complaint lists 'Fremont Investment &
Loan' as the 'lender' and 'MERS' as the 'mortgagee.' When exhibits are attached to a
complaint, the contents of the exhibit control over the allegations of the complaint ... Because the
exhibit to U.S. Bank's complaint conflicts with its allegations concerning standing and the
Page 201'5
"
exhibit does not show that U.S. Bank has standing to foreclose the mortgage, U.S. Bank did not
establish its entitlement to foreclose the mortgage as a matter of law. Moreover, while U.S.
Bank subsequently filed the original note, the note does not identify U.S. Bank as the lender or
holder." BAC Funding Consortium Inc. v. Jean-Jacques, 2010 WL 476641 (Fla. 2
nd
DCA 2010).
Likewise, a copy of the mortgage and two riders are attached to the complaint in the
instant case. A copy of the mortgage, two riders, the note, and an addendum are attached to the
amended complaint. The original note has also been filed. Every one of these exhibits and the
original note identify an entity other than Plaintiff as "lender." The mortgage identifies an entity
other than Plaintiff as "grantee." None of the documents identify Plaintiff as "holder."
Moreover, the language in these exhibits, including the note, indicates that Plaintiff does not
have standing, and that language controls over contrary allegations contained in the complaint.
Further, there are two endorsements on the note, each to a specific entity other than Plaintiff.
Therefore, possession of the original note, in and of itself, does not vest Plaintiff with standing.
Rather, Plaintiff must necessarily rely upon a valid assignment, which does not exist.
Assignment
The assignment attached to the amended complaint is from Mortgage Electronic
Registration Systems, Inc. (hereinafter "MERS") to Plaintiff, and that assignment is completely
ineffective. As nominee for the lender, MERS serves in a very limited capacity. Specitically,
MERS records the mortgage and tracks ownership ofthe lien. MERS has no substantive rights
itself and, therefore, cannot assign what it does not have. "A nominee of the owner of the note
and mortgage may not effectively assign the note and mortgage to another for want of an
ownership interest in said note and mortgage by the nominee." LaSalle Bank Nat. Ass'n v.
Lamy, 824 N.Y.S.2d 769, 2006 WL 2251721 (Sup.2006).
When a state agency found that MERS is a mortgage banker subject to license and
registration requirements, MERS appealed to the Supreme Court of Nebraska and outlined its
very limited role as nominee. "Subsequently, counsel for MERS explained that MERS does not
take applications, underwrite loans, make decisions on whether to extend credit, collect mortgage
payments, hold escrows for taxes and insurance, or provide any loan servicing functions
whatsoever. MERS merely tracks the ownership of the lien and is paid for its services through
membership fees charged to its members." Mortgage Electronic Registration Systems, Inc. v.
Nebraska Department of Banking and Finance, 704 N. W.2d 784 (Neb.2005). "MERS argues
Page 3 of5
that it does not acquire mortgage loans and ... only holds legal title to members' mortgages in a
nominee capacity and is contractually prohibited from exercising any rights with respect to
the mortgages (i.e., foreclosure) without the authorization of the members. Further, MERS
argues that it does not own the promissory notes secured by the mortgages and has no right to
payments made on the notes." Id. Emphasis added. "Documents offered during the Department
hearing support the limited nature ofMERS' services." [d. Based on the explanation from
MERS itself and documents presented by MERS and reviewed by the Supreme Court of
Nebraska, it is undisputed that MERS serves in a very limited capacity and holds no substantive
rights. MERS is contractually prohibited from exercising any rights in a foreclosure case
without the authorization of the lender, and that prohibition was confirmed by MERS itself.
There is no evidence of any such authorization in the instant case.
Other courts around the country have likewise recognized the limited role that MERS
plays as nominee. "We specifically reject the notion that MERS may act on its own, independent
of the direction of the specific lender who holds the repayment interest in the security instrument
at the time MERS purports to act. .. Nothing in the record shows that MERS had authority to act."
Mortgage Electronic Registration Systems. Inc. v. Southwest Homes of Arkansas, 2009 WL
723182 (Supreme Court of Arkansas, 2009). "MERS's role in this transaction casts no light on
the contractual issues raised in this case." Id. "The relationship that MERS has to Sovereign is
more akin to that of a straw man than to a party possessing all the rights given a buyer."
Landmark National Bank v. Kesler, 216 P.3d 158 (Supreme Court of Kansas, 2009). "MERS
presents no evidence as to who owns the note, or of any authorization to act on behalf of the
present owner." In Re Vargas, 396 B.R. 511 (Bankr.C.D.Cal. 2008). "As noted above, MERS
purportedly assigned both the deed of trust and the promissory note to Consumer ... however,
there is no evidence of record that establishes that MERS either held the promissory note or was
given the authority by New Century to assign the note ... Accordingly, the Court concludes that
there is insufficient evidence that Consumer has standing to proceed with this litigation." Saxon
Mortgage Services, Inc. v. Hillery, 2008 WL 5170180 (N.D.Cal. 2008).
Not only are there substantive deficiencies with an assignment from MERS, but the
instant assignment was also untimely. The complaint was filed on January 7, 2009 and states,
"The Plaintiff owns and holds the note and mortgage." Complaint ~ 5 . However, the assignment
was not executed until May 20, 2009 - more than four months after the complaint was filed. As
Page 4 of5
stated above, there is no indication on the assignment that the note and mortgage were physically
transferred prior to that date. "[T]he plaintiffs lack of standing at the inception of the case is not
a defect that may be cured by the acquisition of standing after the case is tiled." Progressive
Exp. Ins. Co. v. McGrath Community Chiropractic, 913 So.2d 1281 (Fla. 2
nd
DCA 2005). "Ifon
the date the Provider tiled the original statement of claim Mr. Joseph had not assigned benefits to
the provider, only Mr. Joseph had standing to bring the action. It follows that the Provider would
have lacked standing under these circumstances, and the case should have been dismissed." Id.
There is no evidence of record that establishes that MERS was authorized to assign
anything to Plaintiff, and therefore, the assignment was invalid. Even if the assignment were
valid, it was not executed until after the complaint was filed. Therefore, Plaintiff s standing at
the inception of the case was based entirely on the complaint and the exhibits attached thereto. It
appears on the face of those exhibits that an entity other than Plaintiff has standing, and those
exhibits control over contrary allegations contained in either version of the complaint. Plaintiff
lacks standing now based on the substantive deficiencies with an assignment from MERS.
Plaintiff lacked standing at the inception of the case based on those substantive deficiencies and
the timing of the execution of the assignment. Absent standing, there is no justiciable
controversy between the parties, and this case must be dismissed. It is therefore
ORDERED AND ADJUDGED that Defendant's motion is granted, and this case is
hereby dismissed. The Court reserves jurisdiction to address Defendant's request for attorneys'
fees.
DONE AND ORDERED in chambers on the ~ ~ day of ~ ~ . . Q . ,2010.
~ .
Rob Crown
Acting Circuit Court Judge
cc: PlaintifflDefendant(s)
Page 50f5
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PASCO COUNTY. STATE OF FLORIDA
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ET AL
Plaintiff,
vs. CASE NO. Sl-2007-CA-6684ES
ERNEST E. HARPSTER
Defendant.
- - - - - ~ ...~ - -
AMENDED ORDER GRANTING MOTION TO COMPEL, GRANTING
MOTION IN LIMINE AND GRANTING MOTION FOR REHEARING
THIS CAUSE came on to be heard on March 1. 2010 upon the Defendant,
ERNEST E. HARPSTER'S Motions to CompeL Motion in Limine/Motion to Strike and
his Motion for Rehearing. The court heard argument of counsel for the Defendant and
makes the following findings of fact:
1) The Plaintiff was properly served with a Second Amended Notice of Hearing
dated November 19,2009.
2) The hearing time was set for March L 2010 at 3 p.m. for a 20-minute hearing
but the Plaintiff failed to appear. The Plaintiffs law firm has long experience with calling
in to participate in hearings with this court, whether noticed as telephonic hearings or not.
3) The court delayed the hearing until 3: 1 0 p.m.: however. after sounding the halls
and after awaiting telephonic communication from the Plaintiff. the Plaintiff still failed to
appear. An assistant for Plaintiff s counsel called at about 3:44 p.m. to find out the
outcome of the hearing.
4) The three motions of the Defendant were properly before the court: a Motion to
Compel Responses to Interrogatories and Request for Production; Amended Motions in
Limine regarding the Promissory Note and a Second Motion in Limine/Motion to Strike
based on an allegation of fraud on the court; and finally a Motion for Rehearing."
5) Regarding the Motion to Compel, the court finds that the PhintifI has failed to
produce answers to the Interrogatories for a period of 26 months, between the time the
Interrogatories and the Request for Production were served on January 8, 2008 and the
date of the hearing on the Motion to Compel took place on March 1,2010. Additionally,
the court finds that the Plaintiff failed to produce responses to the Request for Production
propounded in July 2009.
6) The Defendant's Motion in Limine/Motion to Strike was based on an allegation
that the Assignment of Mortgage was created after the tiling of this action, but the
document date and notarial date were purposely backdated by the Plaintiff to a date prior
the filing of this foreclosure action.
U.S. Bank National Assoc., as Trustee v. Ernest E. Harpster Sl-2007-CA-6684-ES
7) The Assignment, as an instrument of fraud in this Court intentionally
perpetrated upon this court by the Plaintiff, was made to appear as though it was created
and notorized on December 5, 2007. However, that purported creation/notarization date
was facially impossible: the stamp on the notary was dated May 19,2012. Since Notary
commissions only last four years in Florida (see F .S. Section 117.01 (l )), the notary
stamp used on this instrument did not even exist until approximately five months after the
purported date on the Assignment.
8) Confirming this, the Notary Bonding Company's representative, Erika
Espinoza, stated in a sworn affidavit that the Notary Stamp used by Terry Rice, the
Notary, did not exist on the purported date is was notarized. Specifically, Espoinoza
testified in her affidavit that the notary stamp didn't come into existence until sometime
in April 2008. five months after the date on the Assignment.
9) The affidavit of Erika Espinoza was un-rebutted by any pleading, testimony, or
affidavits of the Plaintiff.
10) The Motion for Rehearing alleged proper legal grounds for rehearing the
Defendant's Motion to Dismiss, based on newly discovered evidence and discovery of
fraud on the Court.
11) The court specifically finds that the purported Assignment did not exist at the
time of filing of this action; that the purported Assignment was subsequently created and
the execution date and notarial date were fraudulently backdated, in a purposeful,
intentional effort to mislead the Defendant and this Court. The Court rejects the
Assignment and finds that is not entitled to introduction in evidence for any purpose. The
Court finds that the Plaintiff does not have standing to bring its action. (See BAC
Funding Consortium, Inc. ISOAIATIMA v. Genelle Jean-Jacques, Serge Jean-Jacques,
Jr. and U.S. Bank National Association, as Trustee fo rthe C-Bass Mortgage Loan Asset
Backed Certificates, Series 2006-CBS (2
nd
DCA Case No. Feb. 12,2012.)
12) The Motion to Strike is moot.
13) The COUlt finds that the Defendant is the prevailing party in this litigation a.."1d
is therefore entitled to an a\vard of attorney's fees and costs to be determined in a future
evidentiary hearing before this Court.
14) This Amended Order reflects the court's additional finding regarding the
telephone call from the law offices of the Plaintiff at 3:44 p.m. and corrects the date the
Request for Production was served upon the Plaintiff by the Defendant and the length of
time those requests went unanswered.
--
u.s. Bank National Assoc . as Trustee v. Ernest E. Harpster Sl-2007-CA-6684-ES
IT IS THEREFORE. ORDERED AND ADJUDGED THAT:
1) The Motion to Compel is granted. As a sanction for egregious failure to
comply with discovery Rules the Plaintiff shall be prohibited from presenting the alleged
Promissory Note to this Court.
2) The Motion in Limine is granted. The Plaintiff shall be prohibited from
introducing into evidence the alleged Promissory Note.
3) The Second Motion in Limine is granted. The Plaintiff's recording and filing
regarding the fraudulent Assignment of Mortgage is stricken, and the Plaintiff is
prohibited from entering the Assignment of Mortgage into evidence.
4) The Motion for Rehearing of Defendant's Motion to Dismiss is granted and
the Motion to Dismiss is granted. The Plaintiff's complaint is dismissed with prejudice,
based on the fraud intentionally perpetrated upon the Court by the Plaintiff. This Court
has the power to dismiss a case a showing of a commission of fraud on the Court by
a party. (See Taylor v. Martell (4
1
DCA, 2005). Also. F.R. c.P. 1.150 allows the striking
of sham pleadings upon a proper showing. The Defendant shall go henceforth without
day.
5) This Court reserves ruling on the issue of the amount of reasonable attorney's
fees and costs to be awarded the Defendant. Attorney's fees shall be assessed in favor the
Defendant against the Plaintiff at a future evidentiary hearing. 0 ...1">;' ..; . . ... '
one anu lit
Done and Ordered this day of March. 2010 at Dade City. Floriga. at Dade Cfty,
r asco County t
MAR 21; 201U
... ---
LYNN TEPPER
J!Iput 5eppe't.;
CIRCUIT JUDGE
Circuit Judge
Cc: David Stem, P.A
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, APR 0 6 20 0
Rcpt.: 1202347 Rec: 10.00
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09/10/08
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JED PITTMAN PASCO COUNTY
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CLERK
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09/10/08 11: 18alll 1 1'108
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ASSIGNMENT OF MORTGAGE

KNOWALL MEN BY THESE PRESENTS:
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THA T MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,INC. ! W / -::,
Residing or located at clo WELLS FARGO BANK, N.A., 3476 STATEVIEW BLVD., FT. MILL. SC 29715 herein designated as I 7')
Ihe assignor, for and in considemtion oflhe sum ofSI.OO Dollar and other good and valuahle consideration. the receipl of which is f1 /'
hereby acknowledged, does hereby grant, bargain. sell. assign, tnmsfer and set over unto U.S. BA NK, NATIONAL ASSOClA nON. ;;;/
AS TRUSTEE FOR THE BANC OF AMERICA fUNDING 2007-6 TRUST reSiding or located Ill: C/O AMERICAS SERVICING " J 9 .
COMPANY 3476 STATEVIEW BLVD FT. MILLS, SC 29715 herein designated as the assignee, the mortgage executed by ERNEST ()
E. HARPSTER AND JANETH L. HARPSTER. HUSBAND AND WIFE recorded in PASCO County, Florida al book 7358 and page '9
1120 encumbering the property more particularly described as follows: ..{ ')09
LOT 77. BLOCK 21A, LEXINGTON OAKS VILLAGES 18, 19 & 20, ACCORDING TO THE MAP OR PLAT THEREOF, r
AS RECORDED IN PLAT BOOK PAGES 80 THROUflJ{ 86, OF THE PUBLIC RECORDS OF PASCO COUNTY,
FLORIDA.
together with the nole and each and every other obligation described in said mortgage and Ihe money due and to become due thereon
TO HAVE AND TO HOLD Ihe same unlo Ihe said assignee. ils successors and assigns forever, but without recourse on Ihe
undersigned.
I" Wit"ess Whereof, the saId Assignor has hercunlo sct his hand an seal or caused these ils proper corporate
officers and ils corporale seal to be herelo affixed .
Signed in Ihe presence of: MORTGAGE i!ts TRONIC REGiSTRA TI 'EMS, INC.
-----'--- "
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ATTEST: "
,
""ANnEC"TA" TITL.
STATE OF FLORJDA
COUNTY OF BROWARD
Y APPEARED BEfORE ME. the undersigned authority in and for Ihe aforesaid counly and state. on Ihis Ihc __
day of l::::E!L s:- .> 2([) within my jurisdiction. the within named CHERYL SAMONS who acknowledged 10 me Ihal (s)hc
is ASSISTANT SECRET MY and that for and on behalf of MORTGAGE ELECTRONIC REGISTRATION SYSTEMS. INC. and
as ils acl and deed (s)be execuled Ihe above and foregoing instrument, after flrst having been duly aUlhorized by MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS. INC. to do so,
WITNESS my hand and official seal in Ihe Counly and Slale last aforesaid this S- day
NC1fARY PUl!UCSTATl! OP nORIDA
l'...... Terry Rice
iCQa:missioQ # DD782247
..,.' Expues: MAY 19,2012
BONDED n!HU M\.AHTIC BOI<IlINO co.,!lie