IN THE 15th JUDICIAL CIRCUIT COURT,

PALM BEACH COUNTY, FLORIDA

CASE NO.: 50-2015 CA 010934 XXXXMB

U.S. Bank Trust NA, as Trustee for Towd Point

Master Funding Trust 2017-PM13

Plaintiff,

vs.

SAUL J. WEISS, et al,

Defendant(s).
/

Motion to Abate Proceedings

Individual Defendants Saul and Phyllis Weiss respectfully request that this Court halt
and abate these proceedings. Their reason for this request is that on its face what has
happened in the last few weeks was procedurally improper and requires immediate
clarification and amendment as explained below. Additionally, the new plaintiff
apparently created a false document in order to avoid scrutiny as to why it waited 5
months to move for a substitution of parties (Rule 1.260 requiring these motions to be
made within 90 days after the transfer was of record).

This Motion is based on the following facts and procedural requirements:

1. The new plaintiff was assigned this loan on or about July 28, 2017.

2. The new plaintiff did not file its motion to substitute party until January 11, 2018.

3. The new plaintiff did not file a notice of hearing as required by the rule.

4. The new plaintiff attached an assignment of mortgage to support its motion which is
dated December 21, 2017—nearly 5 months after the transfer had actually taken place.

5. The new plaintiff failed to serve non-party tenants in possession in accordance with
the rules.

6. The new plaintiff has failed to amend the pleadings as to anything of substance upon
which anyone can determine its standing or capacity to sue.

A. Discussion:

Rule 1.260 (c), as correctly pointed out in the new plaintiff’s motion to amend, provides
that : In the case of any transfer of interest, the action may be continued by or

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against the original party, unless the court upon motion directs the
person to whom the interest is transferred to be substituted in the
action or joined with the original party. Service of the motion shall be made as
provided in subdivision (a) of this rule.
(emph. sup.)

Subdivision (a) of that rule requires among other things that the motion be served
“together with the notice of hearing” and that service be “as provided in rule 1.080
and upon persons not parties in the manner provided for the service of a
summons.” The motion is to be made within 90 days of the transfer of record. (Rule
1.260 (a) talks about suggestions of death of record, but caselaw on this subject seems
to suggest that the 90 day rule of 1.260 (a) would mean 90 days from the transfer of
interest. Metcalfe v. Lee, MD, 952 So.2d 624 (Fla. 4DCA 2007) The defendants are
well aware that even this has been liberally construed to allow plaintiffs to substitute
even after the 90 days has run, but the issue here has to do with capacity, standing and
integrity before the court).

B. Questions presented:

1. Since upon motion of the new plaintiff this action is not being continued by or
against the original party (New York Community Bank), then who or what is now
the plaintiff? (Capacity issues). To illustrate the sorts of problems that could arise from
this, consider that the new plaintiff might not be legally allowed to maintain any causes
of action in Florida. Hypothetically, the new plaintiff might be a sanctioned Russian bank
or some entity that has been barred from doing business or is otherwise legally
incapable of doing business.

This is not to say that these hypotheticals are in fact true in this case, but the point is
that we simply do not know and nothing has been plead to establish any rights
whatsoever in this new plaintiff.

2. Since it is clear that this matter is not being continued by the original plaintiff, what
substantive changes must be pled in the new plaintiff’s complaint to establish its
standing?

In case after case involving the 1.260 substitution rule, no where has there ever been a
discussion of whether applying the rule in a case such as this constitutes an improper
rule over substance violation. That is, as per McLean v. JP Morgan Chase, 79 So.3d
170, 172 (Fla. 4DCA 2011) a plaintiff must have standing at the beginning of a case. But
by using this rule, assignee plaintiffs get around this requirement all the time. Without
debating whether this should have been allowed, the problem now is presented in that
the pleadings themselves are no longer factually true—New York Community Bank
does not have any further right or claim to the alleged note and mortgage much less
hold it or have any right to enforce it. Who does? By what mechanism? Can this
mechanism be challenged??

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Without requiring the new plaintiff to do anything more than put its name on the caption,
there simply is no way to understand what rights the new plaintiff actually has, if any.

3. Since NYCB has given up its rights in this matter, then the new plaintiff “must prove
its right to enforce the note as of the time…[judgment] is entered, even if [the
defendant] had waived its right to challenge the bank’s standing as of the date
suit was filed.” Beaumont v. Bank of New York Mellon, 81 So.3d 553, 555 (Fla.
5DCA 2012).

Without any changes to the substantive pleadings in this matter, just what standing
does the new plaintiff have, what rights might it be entitled to as far as its ability to
enforce the note and mortgage in its own name?

C. Integrity. As stated at the outset, the evidence will show that NYCB sold its rights to
the new plaintiff on or about July 28, 2017, not December 21, 2017 as alleged in the
new plaintiff’s motion to substitute dated January 11, 2018.

Again, recognizing the many cases giving liberality to new plaintiffs as far as the 1.260
90 day requirement, the defendants request the Court to conduct a rule to show cause
inquiry as to why the new plaintiff created an evidentiary document which clearly does
not state the actual facts of what occurred. In that regard, the underlying loan issues
originally began with questions about the integrity of documents that were created by
prior parties to the underlying transactions several years after those parties were no
longer legally in existence. One of the original lawyers in this matter was suspended by
the Florida Bar for improprieties relating to his foreclosure practice (Marshall C.
Watson).

Credibility is always an issue. Whether what happened here is a fraud on the court is
another matter, but as it is at the very least the Court should make inquiry as to the
circumstances surrounding the assignments allegedly giving rise to the new plaintiff’s
rights in this matter.

D. Following the Rules. Fla. R. Civ. P. 1.260 (c) requires that the new plaintiff serve
and file its motion and notice of hearing in accordance with Fla. R. Civ. P. 1.260 (a),
incorporating Fla. R. Civ. P. 1.080. McLean v. JP Morgan Chase, 79 So.3d 170, 172
(Fla. 4DCA 2011). This rule was not followed. The motion was served and the Court
entered an ex parte order less than 7 days later (Jan. 18, 2018). Nothing about the
substance of the complaint was amended other than the name—and clearly at this
point, the body of the complaint is now factually incorrect and must be re-stated in order
for the defendants to have full and fair due process.

E. Conclusion. As of this writing, the case is not at issue and cannot be set for trial.
The Court has set a case management conference for February 15, 2018 at which time
it is entirely appropriate and within the rules for this Court to review what has occurred

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and what is stated herein and take appropriate action. It is respectfully submitted that
the appropriate action for the Court to take is to abate proceedings in this matter with
directions to the new plaintiff to amend its pleadings in light of the foregoing and to
make appropriate service as required under all applicable rules.

Respectfully submitted,

Tim Morell

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 9, 2018 a true copy of the foregoing been
furnished by e portal and US Mail to ; Steven C. Weitz, Esq. Weitz & Schwartz P.A. 900
S.E. 3rd Ave., Suite 204 Fort Lauderdale, FL 33316; stevenweitz@weitzschwartz.com; LISA
MARIE MACCI, P.A. 2255 Glades Road, Suite 324 Atrium, Boca Raton, FL 33431
umc@gate.net and lisamariemacci@gmail.com

TIM MORELL, Esquire

Florida Bar No. 382558
Counsel for Defendants
PO Box 2811, Palm Beach, FL 33480
Ph: (561) 329-4000
Fax: (561) 422-4701
email Tim@TimMorell.com